A DIGEST 
 
 OF THE 
 
 ! 
 
 NOVA SCOTIA 
 
 COMMON LAW, EOUITY. VICMDMIRALTY 
 AND ELECTION REPORTS : 
 
 Mitlj iJotfs 
 
 OF MANY UNREPORTED CASES AND OF CASES APPEALED TO 
 
 THE PRIVY COUNCIL AND SUPREME COURT OF 
 
 CANADA FROM NOVA SCOTIA. 
 
 ffiontaininn also Kulcs of Court, 
 
 AND 
 
 AN INDEX OF THE IMPERIAL, DOMINION AND NOVA SCOTIA 
 
 STATUTES, REFERRED TO IN THE REPORTS, WITH 
 
 THE NOTES AND COMMENTS THEREON. 
 
 BY FEED. T. CONGDON, B. A., Ll. B.. 
 
 BARRISTER AT-LAW. 
 
 TORONTO : 
 
 CARSWELL & Co., LAW BOOK PUBLISHERS. 
 
 1B90. 
 
KR;7 
 .H(o 
 
 159026 
 
 Entered according to Act of the Parliament of Canada, 
 
 By Cars well & Co., 
 
 At the Department of Agriculture, in the year 1891. 
 
 V , 
 
„r, (••',.;.' 
 
 PEEFACE. 
 
 i 
 
 This work contains a digest of nil tho reiiorted ciises before A. D. 1880, decided in 
 the Supreme, E(|iiity, and Vice-Admiralty Courts in this I'rovince, and in the ad hue 
 Klection Court. Nothing later than 20 N. S. R. lias been included, that having been the 
 latest jjulilished report when the work went to press. It was considered better not to 
 in.sert any case reported in 21 N. S. R., as it was impossible to insert all. 
 
 In addition to rejjorted cases, a number of cases hitherto unreported have been noted. 
 
 Whenever any case decided in the courts of this Province has been ajjpealed to tho 
 Privy Council, or to the Supreme Court oi Canada, the decision on appeal has been 
 inserted in the Digest, whether the decision below was rept)rted or not. 
 
 A list of the cases ajipealed to the Privy Council, and also of those appealed tc the 
 Supreme Court of Canada, has been appended. 
 
 Under the head Statitks will be found, arranged in chronological order, under the 
 sub-heads Imi'kiiiai., Dominion, and Nova SiotjAj every Statute to which reference 
 has been made in the judgments contained in tlie rejjorts digested. Frequently, it has 
 been thought advisable to give in full the exact language of the section passed upon. 
 Following the reference to each Statute are notes of all the decisions a:id judicial 
 remarks upon it. The subject, Stati'TKs, Nova Scotia, has been prefaced with a few 
 notes, chietly taken from the valuable despatch of Sir Adams G. Archibald to the 
 Secretai'y of State for Canada. These may perhaps not be strictly in place in a work 
 of this kind, but are inserted as of interest and use. 
 
 TJie Rules of Court jmblished herein are only those not previously printed in a con- 
 venient form. It was deemed unnecessary to insert the Crown side, Election or Costs 
 Rules, as tiiese are already easily accessible. 
 
 A list of the Judges who have presided in the Supreme Court ha>: been inserted. 
 
 Under the head Nova Scotia, will l)e I'ouiid the interesting case of The Fditiun of the 
 rnliiihit<intn (if ( '»(/)(' liirtoii, which determined the (piestioii of the legality of the re-annex- 
 ation of that Island to Nova Scotia. 
 
 Stewart's Vice-Admiralty Reports is now ditlicult to (>l)taiii, and as a consequence 
 apfiears not to be generally known. Many eases reported therein involve the discussion 
 and decision of ([ucstions of the fir.st international importance. During the period they 
 cover, 180.'M3, Dr. Alex. Croke, whom Kent in his " Comnientarie.s " styles "the 
 enlightened .ludge of the Vice-Admirality Court at Halifax," was the Judge. Ho was 
 appointed in August, 1801, being the first Judge of the Vice-Admiralty Court at Halifax, 
 as reorganized under 41 (tod. J, c. f)(J. 
 
 The Nova Scotia Decisions, in some instances, do not enable the reader to readily 
 discover the decision of the Court. Smith v. MrEi'chr,;i, 1 N. S. D., 299 ; 3 N. S. D., 
 35 and 279, atfbi'ds one such instance. The following stateiiient, kindly furnished nio by 
 
 iii 
 
iv PREFACE. 
 
 
 Hon. Mr Justice Moiigher, and voritied by reference to his notes, throws some light on 
 the case : "On the first trial a verdict was given for plaintitT. This was sot aside l)y the 
 judgment of the Court, delivered 12tl: August, 1868, c<jnsisting of Young, C, J., John- 
 stone, E. J., DesBarres and Todd, J.J. This is the judgment reported, 1 N. S. D.. 29!). 
 A new trial took place, and the presiding Judge, under the authority of that judgment, 
 told the jury to find a verdict for defendant, whicli they did. This verdict was set aside 
 by the Court, consisting of Ritchie, Wilkins, and McCuUy, JJ., Young, C. J., and 
 DesBarre.s, J., disHeidinii. By this last judgment, three Judges of the Court, in spite 
 of the dissent of two, overruled the former judgment concurred in by all of the four 
 Judges first named." It is not cl'jar how, the first judgment liaving been delivered on 
 13th August, 1808, McCully, J., on .July 1st, 1872, delivered the judgment of tlie Court 
 (3 N. S. D., 35), and Ritchie, .J., on February 5th, 1873, also delivei-ed the judgment 
 of the Court (3 N. S. D., 279), unless there were three trials and three arguments. The 
 case was, it is l)elieved, only twice i) iore the Court, and there is doubtless a mistake in 
 one or other of the last two dates. The difticulty in this, and in a number of other cases 
 that could be mentioned, arises from the fact, that during the time covered by the Nova 
 Scotia Decisions, there was no reporter of the Supreme Court. 
 
 It was proposed to insert in this preface a l)rief sketch of the development of our 
 judicial system, from the time at which Governor Cornwallis "set about ... to 
 establish the Courts of Judicature and the forms of proceeding in them," following as his 
 model the Courts of Virginia (nee Nova Scotia Archives, G05, and Order in Council of 
 Dec. 13th, 1749), down to the Judicature Act, but during the preparation of the Digest 
 1 have had no time to make the necessary investigations for an accurate sketch, and 
 deem it inadvisable to delay the work in order to do so now. 
 
 I have to acknowledge my great indebtedness to Mr. Thomas Notting, Ll. B., without 
 whose hearty co-operation and invaluable assistance I should have found it impossible to 
 finish the work. I trust the Digest will prove of some assistance to the legal profession. 
 Whatever errors it may contain are, I believe, of a minor character, and not such as 
 to mislead. 
 
 FRED. T. CONGDON. 
 Halifax, December, 1890. 
 
CHIEF JUSTICES OF THE SUPREME COURT. 
 
 1754 Hon. .IOXATHAX BELCHER. 
 
 30th Marcli, 177() .. 
 15th April, 1778 . . . . 
 8th August, 1785. . . 
 8th August, 1788.... 
 20th Octob' r, 1789 . 
 9th September, 1797 
 
 31 St January, 1833 . 
 3rd August, IStid. . . 
 20th May, 1881 .... 
 
 CFIARLES MORRIS (Temporarily). 
 
 BRYAX FINUCANE, or FEXUKANE. 
 
 ISAAC DESCHAMPS. 
 
 JEREMIAH PEMBERTON. 
 
 SIR THOMAS ANDREW STRANGE. 
 
 SAMPSON SALTER BLOWERS, vice 
 STRANGE, promoted to Bombay. 
 
 SIR BRENTON HALLIBURTON. 
 SIR WILLIAM YOUNG. 
 
 JAMES Mcdonald. 
 
JUSTICES OF THE SUPREME COURT. 
 
 1764 Hon. 
 
 1764 . " 
 
 29th April, 1769 " 
 
 24th May, 1770 " 
 
 1781 " 
 
 15th August, 1801 " 
 
 10th January, 1S07 " 
 
 lOthJune, ISIO " 
 
 7th Decembur, IS!.") " 
 
 30th March, 1816 " 
 
 30th March, 1816 " 
 
 1830 " 
 
 1833 " 
 
 9th April, l.S-U " 
 
 1st April, 1841 " 
 
 19th February, 1848... " 
 
 14th Novein))er, 1848... " 
 
 14lii August, 18.-)6 " 
 
 11th May, lt;64 " 
 
 28th September, 1870. . " 
 
 28th September, 1870.. " 
 
 5th Xovcm))er, 1873 ... " 
 
 15th January, 1875 " 
 
 8th January, 1877 " 
 
 7th October, 1878 " 
 
 17th December, 1881 ... " 
 
 24th July, 1882 " 
 
 26th September, 1885.. " 
 
 4th March, 1887 
 
 29th September, 1889.. " 
 
 23ril April, 1890 " 
 
 JOHN COLLIER J. . , , a„,:„.„„^ 
 
 I Appointed na Assistant 
 
 CIIAKLES MORRIS j •'«*''''^es. 
 
 JOHN DLTORT Succeeded Hon. John 
 
 ISAAC DESCIIAMPS Succeeded Hon. John 
 
 Duport, app'd Chief 
 Justice of St. Joiin. 
 
 JAMES BRENTOX Succeeded Hon. Charles 
 
 Morris. 
 
 GEORGE H. MOXK Succeeded lion. Isaac 
 
 Uesciiainj)s. 
 
 BRENTON IIALLIBL'RTOX Succee.led lion. Jamea 
 
 Hrenton. 
 
 FOSTER HUTCIIIXSOX Appointed as Third As- 
 sistant Justice. 
 
 JAMES STEWART Succeeded lion. Fo-ster 
 
 Hutchinson. 
 
 LEWIS MORRIS Succeeded Hon. George 
 
 H. Monk. 
 
 PELEG WISWALL Appointed Associate 
 
 RICHARD J. UXIACKE Succeeded Hon. Jumes 
 
 Stewart. 
 
 WILLIAM HILL Succeeded Hon. Brenton 
 
 Hallil)urtoii, appoint- 
 ed Ciiief Justice. 
 
 WILLIAM BLOWERS BLISS Succeeded Hon. Richard 
 
 I. I'niacke. 
 
 THOMAS CHAXDLER HALIBURTOX. .Appointed as Fourth 
 (" S.vM Slick.") Assistant Justice. 
 
 EDMUXD MURRAY DODD Succeeded Hon. Lewis 
 
 M. W ilkins. 
 
 WILLIAM FREDERICK DESBARRES .Succeeded Hon. William 
 
 Hill. 
 
 LEWIS MORRIS WILKISS Succeeded Hon. Thomas 
 
 C. Halil)urton. 
 
 JAMES W. JOHXSTOX App'd .ludge in ;:.iuity 
 
 and Senior Assistant 
 Justice. 
 
 JOXATHAN McCULLY. 
 
 JOHX W. RITCHIE AppM Judge in Ecpiity 
 
 July 9th, 187.3. 
 HUGH McDOXALD. 
 
 HENRY W. SMITH. 
 
 ALEXAXDKR JAMF.S \ppM Jud^e in Equity 
 
 JulyJ4th, 1882. 
 ROBERT L. WEATHERBE. 
 
 .■^AMUEL n. RIG BY. 
 
 JOHX S. D. THOMPSOX. 
 
 J. NORMAX RITCHIE. 
 
 CHARLES J. TOWXSHEND. 
 
 WALLACE GRAHAM App'd Judge in Equity 
 
 same time. 
 XICHOLAS H. MEAGHER. 
 
INDEX OF TITLES. 
 
 ABANDON'MKXT— 
 
 Ok Suii' OK (\\U(io— .?«'' Insih.iM.'k, Ma- 
 ui nk. 71.">. 
 
 ABATK-MKN'T- 
 
 I. Ok XnsANCKs— A'f Ckiminai, I,a\v, 417. 
 
 II. Pl.KAS IS -.SVi; Pl,KAI>INli, lO'.'l. 
 
 AlJ.^^KXr OR A1JSC0X1)IX(; DKIiTOH- 
 
 I. Will) MAV OK I'kOCKKPKI) AliAINST AS, 1. 
 
 II. Akkihavit kou attaciimknt, 3. 
 III. Attaciimknt, Wkitmk, (i. 
 IS'. 8r"MMONs FOR A<;knt, \'2. 
 
 V. MiscKi.nANKois Casks, 1."). 
 
 VI. AUKKST ox .MKSNK I'KOCKSS, 17. 
 
 A(X'IOPTAXCE-.9ee Bills ok Kxi iiavik and 
 Promissoky Xotks, 1<),i. 
 
 AC'CK.S.SORY— .SV« Criminal Law, 40(5. 
 
 A('Cll)i;XT— .SVfi XEiiUdKNCK, IMS. 
 
 ACCORD AXI) SATI.SFACTIOX, -JO. 
 ACCOUXT, •_'(». 
 ACCOUXT ST ATKl), iJ. 
 
 ADVKR.SK POS.SKSSIOX — .S:w. E.ikctmknt, 
 483— Limitation' ok Actions and 
 Sl'its, 844— Trespass, 1554. 
 
 ADVERSE \VrrXK8.S-.SV>K Evii)KN(.E, 5-'3. 
 AFFIDAVIT, i?9. 
 
 AFFILIATIOX-.S't.; Hastard, 103. 
 AOEXT— .S>e Pbi.vcip.u. and Aoknt, 1110. 
 
 AGREEMEXT, 35. 
 
 I. Constriction t>v—Sce Contr.vct, 325. 
 II. CoNsiDER.\Tio.v for -.S'ce Contract, 333. 
 
 III. I.,ei;alitv of -Se<? Contract, 342. 
 
 IV. Parol l-.klanation ok — Si-e Evidenck, 
 
 543-5. 
 V. Relatini; to Sale of Proi-ertv — Si'<; 
 
 Sale, 1200. 
 VI. Specific Performance dv—Sm Specific 
 
 Per'.dkmanoe, 130f). 
 vii. To Demise— .?<;': Landlord .,nd Tenant, 
 824. 
 
 VIII. Within the St.vtite of Frai'ds — Sei' 
 Contract, 302 - Landlord and 
 Tenant, S2S-Sale, 1225, 1232. 
 
 ACI'RETIOX— »(! Rivers, 1201 - Trespass, \LIEX 30 
 15.58. 
 
 ACKXO W LED( i MEXT - 
 
 I. Of Deiits or Demands to iuk .Statctk. ALTER \TI0X 
 II. Of Title to Land— .*<• Limitation of 
 Actions and Simts, 842. 
 
 ALLUVIOX— .S'-r Rivers, 1201. 
 
 ACQIIIESCENCE-See Estoppel, 511. 
 
 ACTS OF PARLIAMEXT-See .Statites, 
 1307. 
 
 ACTIOX, 24. 
 
 AIWUSTMEXT— ftr Insurance, Fire, 008. 
 
 AD.M[XISTRATORS-.SV, Exkci tors and Ad- 
 
 MINISTR.VTOliS, 5()4. 
 
 ADMIRALTY, 20. 
 
 ADMISSIOXS-See Evidence, 523. 
 
 ADVANCEMEXT— Presumption of, to Chil- 
 dren— Sec Will, 1011. 
 
 I. Of Xecotiable Instri'men'ts— .S'cc Bills 
 
 OF F..\CllANOE AND PROMISSORY 
 Xotes, 10(i. 
 II. Ok Bond— .Vf' Bond, 244. 
 
 AMP.ASSADORS, .37. 
 
 AMEXD.MEXT- 
 
 I. Of Writ, 38. 
 II. Of Pleadinos, 41. 
 
 III. Ok Riles, 47. 
 
 IV. MiSCELLANEors, 4S. 
 
 AMERCEMEXT OF COUXTIES, .55. 
 AMERICAX WAR, .5.5. 
 AXIMAL, 57. 
 
vili 
 
 INDEX OF TITLES. 
 
 AI'PKAL- 
 
 I. Fkom Ahskssmf.nt, 58. 
 11. FitdM City Coikt, Hamka.v, ns. 
 
 III. KlUlM (.'OMMISSIONKU OK MiNKH, .")0. 
 
 IV. Fkom Commissionkks in Isdkjknt Dkiit- 
 
 OK Mattkhs, 50. 
 
 V. Fkom CorsTv Coikt, (iO. 
 
 VI. Fkom K(;iitv Coikt, 7(). 
 VII. Fkom Jistichs of tiik 1'kai'k, 7". 
 vm. From I'ltonATK Coi-rt, 80. 
 
 IX. To TIIK PlUVV ColNCII., 81. 
 X. To TIIK .Srl'KKMK CoTKT OK CANADA, 81. 
 
 XI. MiscEU.ANKors Cases, 91. 
 
 ATTACHMFXT- 
 
 1 I. Ok Dkiits, 1(14. 
 
 II. Ok tiik 1'kkson, 105. 
 
 III. In I'KocKKinNiis aiiainst AnsKNT OR An- 
 
 SCONDINIi DkIITOKS — Sir AllHKNT 
 OK AllSCoNIUNd Dkiitou, .1. 
 
 IV. Under Insoi.vknt Acts — ,Si:i: Insol- 
 
 vency, (iliti. 
 
 ATTORNEY, 107. 
 
 AUCTION, 171. 
 
 AVERAOK— .SVclNsrHANTE, Fire, 092- Insik- 
 ance, Makink, 716. 
 
 AITEARANCK, 95— *%e,n^o, PKAriiCE, 1044. AWARD -**: Ariutration and Awarh, 90. 
 
 APPRAISEMENT, dG-Sc, aUo, SinniNo, ^AIL. 173. 
 
 1259. 
 
 RAILMKNT, 178. 
 
 APPROPRIATION OF PAY.MENT.S — .SVr 
 
 Limitation ok Actions and Skits, RANKS, 181. 
 "4-->. 
 
 ARBITRATION AND AWARD, 96. 
 ARMIN(i, 116. 
 
 RANKRUPTCV, 189. 
 
 BARGAIN AND SALE. 
 
 I. Of fioons— .SVp .Sai.k, 1209. 
 II. Ok Lands— .S'c^' Sai.k, 1228. 
 
 BARRATRY-** Insirance, M.uunk. 7.14. 
 
 ARREST- 
 
 1. Ox Mesne Process, 117. 
 II. In Other Casks, 121. ! 
 
 III. Actions kor Arrkst and False Impris- ; BARRISTER-AT-LA\\ , 191. 
 ONMENT, 122. 
 
 ARTICLES OF CLERKSHIP, FILING OF— 
 
 See Attorney, 167. 
 
 ARTS AND SCIENCES, 124. 
 
 ASSAULT, 124. 
 
 ASSEMBLY, HOUSE OF, 120. 
 
 ASSESSMENT- 
 
 I. Of Banks, 127. 
 
 II. City ok Hai.ikax, 129. 
 311. Ok Dyke Lands, 129. 
 IV. In New Glasoow, 1.31. 
 
 V. Of Railways, 1.32. 
 
 VI. For School Rates, 1.36. 
 
 VII. Of Shippino, 139. 
 
 VIII. Remedy when relatively too high, 
 141. 
 
 ASSIGNMENT— 
 
 I. For Benekit OK Creditors, 141. 
 II. Of Choses in Action, 148, 1637. 
 
 III. Under Insolvent Acts, 150— .^ee, also, 
 
 Insolvency, 604. 
 
 IV. Fraidi'lent, 155. 
 
 V. Miscellaneous, 1.58— S'ee, aho. Bills of 
 Sale, 232— Deed, i35. 
 
 ASSOCIATION, 163. 
 
 BASTARD, 193. 
 
 [BEQUEST -.SV Will, 1012. 
 
 i 
 
 JBIGAMY-zS'^fi Criminal Law, 400. 
 
 BILL- 
 
 I. Of Costs -.S're Costs, .381. 
 II. Of Ladino — See .Siiippini., 12.')9. 
 III. Of Particclars — ,*?f p Practice, 10,38. 
 
 BILLS OF EXCHANGE AND PROMIS.SORY 
 NOTES— 
 
 I. Acceptance, 19.5. 
 
 II. Alteration, 196. 
 
 III. Consideration, 197. 
 
 IV. Evidence, 204. 
 
 V. Foreign Law, 207. 
 VI. Indorsement, 208. 
 vii Interest, 212. 
 VIII. Notice of Dishonor, 213. 
 IX. Pleadi.ncs, 214. 
 X. Presentment, 218. 
 XI. Stamping, 219. 
 XII. Miscellaneous, 224. 
 
 BILL OF LADING -See Shipping, 1259. 
 
 BILLS OF SALE, 232. 
 
 BLOCKADE-Sce Shipping, 1259. 
 
BOARD OF HEALTH, 24 1. 
 BOND, 244. 
 I'.OUNDARIES, 259. 
 BOTTOM FiY-.SV, Siiii'n\(i, 1259, 
 
 INDEX OF TITLES. 
 
 COLOR OF TITLE, .114. 
 I COLORE OFFICII, .114. 
 CLUB, 315. 
 
 ix 
 
 BREACH OF PROMISE OF MARRIAOK— 
 
 See HrsilAM) AND WlKK, (i.S.'). 
 
 BRITLSH NORTH AMERICA ACT, 264. 
 
 BRITLSH .SURJECT, 273. 
 
 I'.ROKER, 274. 
 
 nUILDIN'O SOCIETY- *f^ AnniTRATios am. 
 A WAUt), flO — BoM), 244 — Mokt- 
 
 CAiiK, 8H.S. 
 
 BURfiL.\RY-.S'(c Ckimisai, Law, 400. 
 
 (ALLS— ,SVc Banks, ISI. 
 
 CAN.M)A TEMPERANCE ACT, 27.-.. 
 
 I COMMISSION, EXAMINATION OF WIT- 
 NESSES U.NDER- Sec Evidkxoe, 
 j 523. 
 
 CO.MMISSIONER, 316. 
 
 COMMON' LAW, 317. 
 
 COMPANIES, 317. 
 
 COMPOSITION, 319. 
 
 CONSTABLE, ,320, Ifi.SS. 
 
 CONSTRUCTIVE SERVICE, .322— 5ee Prac- 
 TICK, 1038. 
 
 CONTEMPT, .323 — .S'se Assembly, House of, 
 12(5. 
 
 CONTINUANCE— Sep Practice, 10.38. 
 
 CAPE BRKTfVN^ ANNEXA^K)^ OF, TO ^.qnTRACT, 323. 
 
 N0\ A .SCOriA— iS". Nova Scotia, i ' 
 
 16.37. 
 
 CAPIAS-^ff Arrest, 117. 
 
 CAROO-iV.' Siiii'iiNc, 12.')9. 
 
 CARRIERS, 283. 
 
 CATTLE - 
 
 I. IxjiRiKs TO i!Y Dons— .SVv- Animal, 57. 
 II. lN,irRi\(i— .5ee Criminal Law, 406. 
 
 ( ERTIORARI, 289. 
 
 CHALLEXfiE- 
 
 Of .Jruv IN Civil Actions— .S'cp Jcrv, 
 803. 
 
 CHAMBERS, JUDOES'-.S'f« Practice, 10.38. 
 
 CHAMPERTY AND MAINTENANCE, 312. 
 
 CHARACTER— 
 
 I. Defamation ov—See Defamation, 455. 
 
 II. (iiviNfi Servants — See. Master and 
 
 Servant, 8.^8. 
 
 III. Rei'rf.sentations as to — See Fraud 
 
 AND MlSREI'RESEXTATIOX, 572. 
 
 CHOSE IN ACTION, 312, 1637. 
 
 CLERK, ATTORNEYS'- .S'ee Attorney, 167. 
 
 CITY BUILDING ACT - See Halifax, City 
 OF, 616. 
 
 CLERK OF LICENSE, 313. 
 
 COLLISION— 5ce Shipping, 1259. 
 
 I 
 
 CONTROVERTED ELECTIONS-fi-f^ Elkc 
 Tiox Law, 497. 
 
 CONVENTION OF 1818, 367. 
 
 CONVENTIONAL LINE — .Sfee Boundaries, 
 259. 
 
 CONVERSION— .S-fic Trover, 1570. 
 
 CONVICTION— 
 
 I. Summary- Se^ Ji'stices of the Peace, 
 
 807. 
 II. Quashing — Sue Certiorari, 289. 
 
 CORPORATION, .369— Se^- Banks, 181— Com- 
 panies, 317— Negligence, 918. 
 
 COSTS, .381. 
 
 COUNTIES, AMERCEMENT OF- 
 
 See Amercement of Counties, .55. 
 
 COUNCIL, T0WN-.9ee Contract, .356-Cor- 
 poration 369. 
 
 COUNTY COURT, 400. 
 
 COURT, 404. 
 
 COVENANT, 406. 
 
 CRIMINAL LAW, 406. 
 
 CROWN, 419. 
 
 CNRRENCY, 42i. 
 
 CUSTOM, 422. 
 
X 
 
 CUSTOMS ACTS -See Customs Act, Acts 
 18.^5, 4-2-2. 
 
 CUSTOMS HOUSE EMPLOYEE, 4->2. 
 
 DAMAGES, 423. 
 
 DARTMOUTH -See Assessment, 137. 
 
 DEATH, 427. 
 
 DEBENTURES, 429. 
 
 DECEIT— (Se FiiAND andMiskeI'Rksentatio.v, 
 
 582. 
 
 DECREES OF BERLIN AND MILAN, 429. 
 DEED, 430. 
 DEFAMATION, 4r)5. 
 DEMURRER- *e Pleadini!, 990. 
 DEPOSnTON-&e Evidexoe, 523. 
 
 DEVIATION AND CHA.VOE OF VOY.\(iE— 
 
 Ac, Siiii'PiNd, 12,")9. 
 
 DEVISE-Sce Will, IGH. 
 
 DISCOVERY— See Evidence, 523. 
 
 DISMISSAL, WRONGFUL— Sfe Master and 
 Servant, 858. 
 
 DISTRESS FOR RENT -Se Landlord and 
 'I'enant, ^524. 
 
 DOMICIL, 424. 
 
 DONATIO MORTIS CAUSA, 405. 
 
 DOWER, 4(i5. 
 
 DRAINAGE. 407. 
 
 DROITS OF ADMIRALTY— DROITS OF THE 
 CROWN— S(c Admiralty, 2(!. 
 
 DURESS, 467. 
 
 DYKE LANDS, 468. 
 
 DYNAMITE— See Criminal Law, 406. 
 
 EASEMENT, 469. 
 
 EASTERN EA'TE.NSION RAILWAY— SeeCoN- 
 tract, 323. 
 
 EJECTMENT, 474. 
 
 ELECTION LAW, 497. 
 
 EMBEZZLEMENT- <yee Criminal Law, 406. 
 
 EMPLOYEE, 508-.9.e Customs Hoise Em- 
 
 . PLOVEE, 422. 
 
 ENGLISH BANKRUPTCY ACT, 508. 
 
 INDEX OF TITLES. 
 
 EQUITY COURT, 509. 
 
 EQUITABLE PLEAS -See Pleading, 990. 
 
 EQUITABLE RIGHTS, 510. 
 
 ESCAPE, 510. 
 
 E.SCHEAT, 510. 
 
 ESCROW— .Sic Deed, 430. 
 
 ESTATE, 510. 
 
 EST.4TES TAIL, 511. 
 
 ESTOPPEL, 511. 
 
 ESTREATING RECOGNIZANCE— .9 e Recoo- 
 mzance, 1169. 
 
 EVICTION— See Landlord and Tenant, 824. 
 
 EVIDENCE, 523. 
 
 EXECUTION, 553. 
 
 EXECUTORS AND ADMINISTR.^TORS, .^04. 
 EXTRADITION —See Criminal Law, 40(). 
 
 EXTR.\-TERRIT0RIALITY, 573. 
 
 FALSE ARREST AND IMPRISONMENT- 
 S' e Arrest, III., 122. 
 
 FALSE PRETENCES, .574- See Fraud and 
 
 M ISREl'RESENTATION, 5S2. 
 
 FEES, 574- See Costs, 381. 
 
 FELONY— See Criminal Law, 406. 
 
 FEME COVERT -See Husband and Wife, 635. 
 
 FENCES, 575. 
 
 FILIATION-. See Bastard, 193. 
 
 FI>H AND FISHERY, 57.5. 
 
 FIXTURES, 577. 
 
 FLAG OF TRUCE, 578 -S\e Pri/e of War, 
 1121. 
 
 FORBEARANCE, 578. 
 
 F0RCI1M.E ENTRY, 579. 
 
 FORECLOSURE -See MoRTr.AUE, 883. 
 
 FOREIGN AD.TUsr.MENT — Sr-e Insurance, 
 Marine, 715. 
 
 FOREIGN BANKRUPTCY ACT, 579. 
 
 FOREIGN CORPORATION, 580. 
 
 FOREIGN LAW, 580. 
 
INDEX OF TITLES 
 
 XI 
 
 FORFEITURK— 
 
 I. Of (ioons FOR Unpaid DfTiEs— 5''<; Rev- 
 en uk, 1197. 
 II. Of (Jkant fok Non-1'ekformance uf 
 CoNDiTr.N— See (Jkant, 00.5. 
 
 III. Of Lease— S'ee Landlord and Tenant, 
 
 824. 
 
 IV. Of Mimn<; Areas — See Mining: Law, 
 
 8(5(i. 
 
 V. Of Prize of War, 1121. 
 
 FOlUiKRY— AW' Bills of Kx(irAN(;E and I'ko- 
 MissoRv Notes, XIL. 224 -Crim- 
 inal Law, 40!) Will, Kill. 
 
 FR.AUD AND MLSRKl'RKSHNTATIOX, 582. 
 
 FRAUDS, STATUTE OF, ,->n4. 
 
 FRFIOHT -.<?*« Carriers, 2S;r Lnsirance, 
 692— SiiiiTiN.i, 12,')!t. 
 
 FRIVOLOUS PLKAS-*e 1'lkadino, 0!)0. 
 
 FRUCTUS XATUKALES, (ioo. 
 
 f4AMI.VG, GOO. 
 
 (iARIXSHEK— *-; Atta-iiment, \r,3. 
 
 <;AS, G02. 
 
 (JEXERAL ISSUE— Sff; Pleadings, 990. 
 
 (ilFT, 60,S. 
 
 (iOOD WILL, 604. 
 
 COVERXMEXT RAILWAYS ACT, 60.'). 
 
 (ilfAXT, 66.J. 
 
 GRASS, (iROWIX( ;-.<?,,. Furtrrs Xatiralks, 
 600. 
 
 GRKAT SEAL OF THE PROVIXCE, 612. 
 
 CUARANTEK --.<;>»■ Contract, .•}2;]. 
 
 CUARDIAN, 61.S. 
 
 HABK.VS CORPUS, 614. 
 
 HALIFAX, CITY OF. 616. 
 
 HA RHOR REGUL.\TIO.\S- .sw. Siiin-iNii, 12.-)9. 
 
 HAWKRRS AND PEDLARS, 631. 
 
 HKALTH, 0.S1. 
 
 HKII{, 6.S1. 
 
 HORSE, 6.3.S. 
 HOSPITAL, 6.34. 
 
 HOUSE- 
 ATTACHMENT OF TO Soil. ->'«'<' TliOVER, 
 
 ' l.")7o. 
 
 .HOUSI-: OF ASSEMBLY, POWKRS OF-.s-; 
 I Assembly, Hoi-se of, 126. 
 
 HUSHA.VD A.\D WIFE, 03r.. 
 
 IDENTITY, (i4.-). 
 
 IMPORTATION, 64.->. 
 
 IXDIAX COM.MISSIONER, 64.-i. 
 
 INDICTMEXT-.V, Crlmnal Law, 406. 
 
 INDICKNT DEl!T()i{-.S'w Aim>eal, IV., M— 
 Insolveni V, iHYA. 
 
 IXDORsEMEXT- 
 
 I. Of Bills and Xotes -.S'-^ Rills of Ex- 
 chance AND I'romissorv Xotks, 
 194. 
 
 II. Of Rills of La1)INi; — .S<'Siiipi'inc, I2.')9. 
 
 INEVITABLE ACCIDENT - v. Sim'nN,^, 
 12.)9. 
 
 ' INFANTS, 646. 
 
 IXJUNCTIOV, 648. 
 
 INLAND REVENUE ACT. 662. 
 
 IN.soLVENCY, mx 
 
 INSURANCE- ■SVf^ Insirance, Fire. 692, IC.'^S 
 -- Insirance, Life, 710, lti.'?9 - 
 Insi-rance. .Marine, 71.">, 1640. 
 
 INTERE.ST OX .MOXHV, 749. 
 
 INTERNATIONAL LAW-.^^. Fokek.n L\w, 
 580. 
 
 INTERPLEADER, 7.-)2. 
 
 INTER lUXJATORIES, 7.-);). 
 
 IXTESTATE- S.e Fxecitors and Adminis- 
 trators, ,")(U. 
 
 HKUI .SE.\S- 
 
 Offences Committed o\-S" Criminal 
 Law, 406. 
 
 HIGHWAY— &e Wav, 1601. 
 
 HIRIXG, (i.S.3. 
 
 IXTOXICATIXG LIQUOR.-;. 7.Vx 
 
 JOIXDER— .SV' Practice, 103S. 
 
 JOINT SPECULATION, 7.-)7. 
 
 .lOINT .STOCK COMPANIES, 7.-)7. 
 i JUDGE, 762. 
 j JUDGMEXT, 764. 
 'jURAT-.V' Affidavit, 29. 
 
xU 
 
 JURISDICTION, 785. 
 
 INDEX OF TITLES. 
 
 JUSTIFICATION', PLEAS OF-See Pleading, 
 <)90. 
 
 JURY, 803. 
 
 JUS TERTII, 806. 
 
 JUSTICES OF THE PEACE, 807. 
 
 KI.V(;S COLLEGE, 8-2-2. 
 
 LABEL, 823. 
 
 LADING, P.ILL OF-.Vrr Siiii-i'iyc, l-J.'.n. 
 
 LANDLORD AND TENANT, S-24. 
 
 LARCENY— 5m Chiminai. Law, 4<>(!. 
 
 LAW STUDENT, 834. 
 
 LEASE, KU. 
 
 MARRIED WOMEN'S PROPERTY ACT OF' 
 1884— Ste Hlsband and Wike, 
 635. 
 
 MASTER, 856. 
 
 MASTER AND SERVANT, 8.-)8. 
 
 MEDICINE AND MEDICAL PRACTITIONER, 
 
 8(i-2. 
 
 MERCANTILE LAW AMENDMENT ACT, 804. 
 
 MERCHANT SHIPPING ACT-Sce Siiii'i'i.vd, 
 l-2.')n. 
 
 MESNE PROFITS-.Sv=e Use and OccrPATiov, 
 
 .MILITIA, 865. 
 
 MININ(^ LAW, S66. 
 
 MINOR, DEED \i\—S,, Dkkp, 4.30. 
 
 LEAVE AND LICENSE-.v« Tkespass, 1548. minuTES OF JUIXiE. S74. 
 LE0AC\,S3j. MISDEMEANORS— ><' Ckiminai. Law. 401. 
 
 LI:(;AL tender, 8.3.-). misdirection- .S' ^ New Tkiae, 927. 
 
 LKOISLATIVE AC I'HORITY - S" Mkitish 
 
 NoKTii Amkkmv a. t, 2(14. MlSFEASANiE -5-r NE.:u<iENTE, itis— TnEs- 
 
 I'Ass, 154S. 
 
 IJIVY, 8.31)— 5m ExrciTioN. .">.V). 
 
 MISREPRESENTATION— 5m Fkah. am. Mis- 
 
 LIP.EL-SM Deiamation, 4.V.. hepkesemaiion, .-.S2. 
 
 LICENSE, S,37. MONEY COUNTS, 875. 
 
 LIEN, S.3S. M;)RT<iA(iE, 883. 
 
 LIMIT \TION OF \CTIO\S WD SUITS 842 MORTIS CAUSA -5m Dona no MohtisCaisa, 
 
 465. 
 
 IJQUIDATED DAMA(;F.S-5i. CoNruArr, .32.3. 
 
 LIS PENDENS, 84!i. 
 
 I-OAN SOCIETY — 5(fc BriLDtNc Societv, 274. 
 
 LUNATIC, 8,-)0. 
 
 MAGISTRATES-5M .Dstk es hf the Peace, 
 807. 
 
 MAINTE.NANCE AND CHAMPERTY, S51. 
 MALICIOUS ARREST— 5'f AnuEsT, 117. 
 
 I 
 
 MOTIONS — Sm Pkactk e, l(i.3S. 
 
 MUNICIPAI- C(»KPOR\TI')NS-.S''' Ct.Ki'.)- 
 KMioN, 369 -Halifax, City of, 
 616. 
 
 MURDER-. S'' Criminal L\w, 406. 
 
 NAVIG.VTION, 915. 
 
 NECESSARIES- 
 
 FoR iNFANTS-.S'fi In*-ant, 646. 
 For Vessels— .Vee Shii-i'INi;, 1259. 
 
 MALICIOUS IN.IURY TO PROPERTY- 5m NEGI.UiENCE, 918. 
 Ckiminal Law, 406. 
 
 InEW <;L\SG0\V, ASSESSMENT UNDER, 
 MANDAMUS, 851. P.V LA\V-.Sm> Assessment, IV., 31. 
 
 MANSLAUlJHTER— Vr Culminal Law, 406. SEW TRIAL, 927. 
 
 MAltlNE INSURANCE-5M Issi kanie. Ma- 1 N0N-J0INDER-5f( Pr.vctke, 10.38. 
 lUNE, 715, l<t40, 
 
 , XON PROS, 963. 
 
 MARRIA(iE LAW. FOREIGN. PROOF OK— 
 
 5n Ckimlval Law, 406. < XON SLIT, 963. 
 
INDEX OF TITLES. 
 
 Xlll 
 
 NOTES— (S'ee Bills ok Exchanoe and Promis- I'liRJURY— 5e« Criminal Law, 40G. 
 
 SORY NoTE.S, 194. 
 
 NOTICE OF ABAXDOXMENT— See Insdr- 
 ANCK, Makink, 715. 
 
 NOTICE OF DISH0X0R-5M Bills of Ex- 
 
 CllAN(iK AND I'ROMUSOKV XolES, 
 
 194. 
 
 NOTICE OF TRIAL-5fifi Trial, 1565. 
 
 NOTICE TO QVIT-Sm Landioki) and Ten- 
 ant, 824. 
 
 NOVA SCOTIA, 970. 
 
 NOVATION, 971. 
 
 NUISANCE, 971. 
 
 OFFICERS OF Tl... CROWN, ACTIONS 
 
 A(;AIXST-Ve E.)ECTMEN1, 474. POOR LAW, Km. 
 
 I'ERPETUATIXGTESTIMOXY-^ee Evidence, 
 5l';j. 
 
 PERSONAL CHATTELS, 99S. 
 
 PEW HOLDER, JXTKRFKREXCK WITH 
 RIGHTS OF— .See As.saulT: P.M. 
 
 PILOTAGE- &e Shii-pinc;, P259. 
 
 PIRATES, 990. 
 
 PLANT, 990. 
 
 PLKAUIXG, !)!>i». 
 
 PLEDGE- ,SV. Lien, 8.S8. 
 
 POLICY— .S'm Insckance, Fiiie, Like and Ma- 
 ui ne, (i'J2. 
 
 ORDKRS IN COL'XCIL, 971. 
 OVEIJHOLDING, 974. 
 OVERSEER— &e Poou Law, 1034. 
 
 OVER-^VALUATIOX- 6'eclNsrRANi E,FiuE,(59-_'. 
 
 PARLIAMEXT OF CANADA, JURISDICTIOX l'**-^<^^"'''t"'', lO.SS 
 OF— Sf British Nuiuii America 
 
 I'OUTS— &« Shii'I-in<;, P_V)9. 
 POSSKSSIOX, 103(j. 
 POUXD KEKPER, 1037. 
 POWERS, 1037. 
 
 Act, •J()4. 
 
 PAROL EVIDENCE Sw Evidence, .Vi.S. 
 
 PARTICLLARS-i'(;« Pleadi.\(;, 990. 
 
 PANKL-*^.)iUY, 803. 
 
 PARENT AXD ClllLD-^Sc Infants, 646. 
 
 PARTIES — Aee Amendment, .38 — Pleadinc, 
 990 -Practice, 1038. 
 
 PARTITIOX, 975. 
 
 PARTNERSHIP, 977. 
 
 PART OWNERS— .See SiiH-iMNu, l-_'59. 
 
 PARTY WALLS- *V Fences, 575. 
 
 P.'VSSEXGKR — 6V.e Carriers, -283 - Neiju- 
 liENOE, 918. 
 
 PAUPER-&e Poor Law, 1034. 
 
 PAYMENT, 984. 
 
 PEACE OFFICER, 986. 
 
 I'EDLAR-6c" Money Counts, 875. 
 
 PENALTY, 987, 1640. 
 
 PRECEUEXCK AT THE BAR-&-; Qceens 
 i CdiNSE',, 1146. 
 
 Pi{ESCRlPTIOX-,SVe Ejectment, 474--Limi- 
 TAHoN OF Actions and Scits, 
 I 842— Trespass, 1548. 
 
 PHESEXTMKNT-Sie Bills of Exchance and 
 Promissorv Notes, 194. 
 
 PRINCIPAL AXD AGENT, 1110. 
 
 PRISONER- .S'ee Criminal Law, 400. 
 
 PRIVILKGED COMMUNIC.VITOXS-.SVe De- 
 I famation, 455. 
 
 PRIVY COUXCIL, 1120. 
 
 PRIZE OF WAR. 1121. 
 
 PROBATE COURT, 11.32. 
 
 PROCLAMATIOX, 1142. 
 
 PROCTOR— &e Probatf. Court, 1132, 
 
 PROHIBITION, 1142, 
 
 PROMISSORY NOTES — ^SVe Bills of Ex- 
 chanoe AND Promissory Notes, 
 194. 
 
 PROSPECTING LICENSES- A'ee Minino Law, 
 866. 
 
 PERFORMANCE— See Contract, 323-Pleai)- 
 
 990— Specific Performance, 1.306. PROTHONOTARY, 1144 
 
XIV 
 
 INDEX OK TITLES. 
 
 P;;OVINCIAI- RAIIAVAVS-iSVe Railways, SALVAGK-.SV. Shiitini;, 1250. 
 1U8. 
 
 SATI^^PACTIO-V- 
 
 II. (.)K .lri>i:MKNT — «SVf JUDCIMKNT, 704. 
 
 ITBLIC COMl'A.NV-iSV, ('(impamks, ,'{17- 
 
 iMKioKATioN, Htiit. SCHOOL LAW, 1-2C4. 
 
 I'll'.LIC STPxKL;! -.Sm Way, KiOl. 
 
 l^iLKK.V, THK S. .S.vkki;i.;n, Tiik, l.mi 
 
 gUEE.V.S CoL'X.xHI-, UK). 
 
 (.•(■(tRr.M. llts. 
 
 (.>lO WARRANTO, 1148. 
 
 KAILWAY^;, 114S. 
 
 KAXSOM-.SV. PiiizK «v Wai;, IIl'1. 
 
 RATK-.V. AssKss.MF.NT, l-.'7. 
 
 RKCKIIT, 111!.-.. 
 
 RHCKlVKi;, 11 (is. 
 
 RK('i)(;.\l/C\.\(K, 1I(;!I. 
 
 RECORD, llTit. 
 
 .'^KA, l-24-_'. 
 
 SEAL, V2V.i 
 
 .SKAMAN-.SV. Siiii'i-iNc, 1-_V.9. 
 
 SECURITY FOR COSTS- A'. c Costs, 381. 
 
 i SEDL'CTION- ,S": Hisiia-nd ant. Wifk, (!.'«. 
 
 I SERVANT— »S'- Mastki: am> Skuvant, 8.">8. 
 
 SKRVICE — »SV; CoNsTKi iTiVK Skhvkk, .S"J2 — 
 I'H.ViTirK, I0;«. 
 
 I 
 
 j SKSSIOXS, 1'244. 
 iSET-OI'F, 1-J4.-.. 
 SFTTLIvMHNT - .Sm 15astaki>, I9.S— Poor Law, 
 
 SKWERS, l-24(i. 
 
 KK((>liDER, OF CITY OF HALIFAX— 6'm SHKRJFF, I'.V.O. 
 Halifax, City of, (IKi. 
 
 REFERENCE, ORDER OF- .V. Auci'.u.moN- 
 "anu .\\\ai;ii, !Mi. 
 
 SlllPI'lX(i, l--V.it. 
 SL.\XDER-.SV( Dkfamation, 4.')."). 
 
 RE(il.>-TRAR OF VICI'; AD.M ll{A,;:'V COURT SLAVE TRADE, l.'^til. 
 
 -.S- I'ui/F. OF Wai:, lllM. 
 
 RKGI.<TRATIOX-.S> Rf.(Msti;ation, 117:1. 
 RFLATOR-.S'< I'ha.ti.f., KWS. 
 RF.LF.ASE, U-J. 
 
 KENT- .S' ' Lankloki. AM. Tknant, S'_'4. 
 RKFLEVIX, 11S7. 
 
 .<MUli(;LlXO -,S'.. SMl(;(;LIN(i, 1.S02 — Rkvk- 
 MK, II!I7. 
 
 SOLICITOR- 6V« Attounf.y, lti7. 
 
 jSOVEREKiX, THE, 1:1(I3. 
 
 SPECIAL DA.MAOES-.Su DAM.MiKs, 4'J:{. 
 
 SPECL\LT1ES, 1. •{(),-). 
 
 RKSTRAIXIXO 0RDI:R-<S ' Inkm ri n, (i48. SPECIFIC PERFORMANCE, l.SUO. 
 
 IIF.VENCF, 11!(7. 
 
 RIOT, P.'(M». 
 
 RIVFRS, 1-JOI. 
 
 ROAD. I-Jii-J. 
 
 RULKS OF ColRT, I'-'d-i. 
 
 SAlLoR-.S-'.-^iiin'i.sc, l-2')'X 
 
 SALE— 
 
 I.' Of (.ixnts-jV- Salf:, 1'_'(I!». 
 n. Of Lam.s— ,SV( Salk, PJJS. 
 
 STAKEHOLDER -,SVt Oami.nc, GOO. 
 
 STATUTES - 
 
 Uo.MiNuiN. 1;!07-Imi'kiual, 13.10 -Xova 
 S(<iTiA, 1.S74. 
 
 STAYINci PROl'EEUINGS— AVc Pk.vctuk, 
 
 io:is. 
 
 iSUPRFMK COURT OF CANADA, APPiCAL 
 
 I TO-.SV« Ai-i'KAL, X.', 81. 
 
 I SURETY, l.->4-2 -.S'.- Kail. 17;1 Hills ok Ex 
 
 , CIIAMIF, AM. PkoMISTOKY .NoTF.S, 
 
 I 194 -llo.M., •_'44-Cu.NTKAi;i, ,T.':i. 
 
TAXATION — 
 
 I. Ok r.ANKS, 181. 
 11. Ok I'dsTs, .SSI. 
 in. Ok .^^iiU'i'i.Nc, 1'2.59. 
 
 LNDEX OF TITLES. 
 
 1 USK AM) Ot'CUl'ATION, \:m. 
 USUltV— jSV- Istkkkst on Monkv, 7-t'V 
 VENDOR AND ITKCHASKH, l.MW). 
 
 XV 
 
 TAXF>. LIEN FOK-,SW; Haukax, City ok, VEXIKE DE NOVO-Nm Ciumi.sai, Law, 406. 
 (illi-MoilTCACK, 8S;{. 1 
 
 TKLKGKAl'H- 
 
 I. CONTKAIT nv- Srf CONTliAOT, '.Vlli. 
 
 VEXUE-.SV/ Tkiaf,, l.-.(i.-.. 
 VERDICT, l-m. 
 
 ... P.M.OK OK TK..KUKAM.-&e Kv.OKN.K, , ^j(,g ^0^,j,j^, _ ,-,,. 
 
 .... L.A.siLiTy OK Tki...:.i.i.u'ii Co.m.'any .-ok i VICE-ADMIRALTV COURT- ^efAi.M.iiAi.TV, 
 
 TiaNSMITT.N.: Lll'.K.J.O.S MkS- •.V,-,^,,, ITl NO, llT.!). 
 
 SAoi;-.S((' Dekamat.on, io"). 
 
 TEX A. NT, L-)44. 
 
 TENDER -iV'< H.i.Ls ok Exch.vnok ank I'ho- 
 
 MISSOKY XOTKS, VJ., II, 1!)4 — 
 
 Plea 1)1 no, 9(»U. 
 TIME, L-.4(i. 
 
 TRADE AXD TRADE MARK, 1.547. 
 
 TREATY, I.-.4.S. 
 
 TRE.SPASS, L-,48. i 
 
 Ti;iAL, L-.ti.-.. 
 TROVER, 1.-.7U. 
 TRUST, L-)8-_>, 
 USA(;E, \'^H'X 
 
 WAGER— ,Sfec (iA.MiNO, 00(1. 
 WAR, L->!)7. 
 
 WARriHOU.sEMAX AXD WlIAKEIXiiER, 
 L'lStS. 
 
 WARRANTY, LVJS. 
 
 WASTE— *V DowKi:, 4(i."). 
 
 WATER AXD W.Vl'ER COURSE, 1601. 
 
 WAY, UiOl. 
 
 WEIGHTS AXD MEASURES-AVt IIalikax, 
 
 CiTV OK, (11(). 
 
 WIFE— *<- HrsiiANi) ank W.ke, O.T). 
 
 WILL, 1011. 
 
 WORK AND LA]JOR-,S'ef Cpntkact, .323. 
 
A CHliONOLOGlCAL LIST 
 
 OF 
 
 ^\)c Ucports 
 CO^IPEISED IX THE DIGEST. 
 
 NA.MK OK REPORT. 
 
 COURT. 
 
 DATKS. 
 
 HOW CITKl). 
 
 Stewart. 
 
 1 'I'liomson, 1st Etlitiou. 
 
 Oxley's Young's Ailmi- 
 
 ralty's Decisions. 
 Russell's E(juily Decisions 
 
 of Ritchie, E. J. 
 Russell's Election Reports. 
 
 Vice- Admiralty. 
 
 .Supreme. 
 
 Vice-Admiralty. 
 
 E(iuity Court. 
 
 Ad Hoc Election Court. 
 
 
 r 1 
 
 1 Tiiomson, 'ind Edition. 
 
 Supreme. 
 
 
 o 
 
 .James. 
 
 Supreme and Vice 
 
 
 'a 
 
 •2 Thompson. 
 
 Supreme. 
 
 
 4 
 
 Cochran. 
 
 It 
 
 
 .") 
 
 I Oldright. 
 
 Supreme and Vice 
 
 
 (> 
 
 2 Oldright. 
 
 Supreme. 
 
 g 
 
 7 
 
 1 (ieldcrt & O.xley. 
 
 
 € 
 
 w 
 
 
 (Nova Scotia Decisions.) 
 
 1 1 
 
 u 
 
 8 
 
 2 " 
 
 li 
 
 P5 
 
 
 
 3 
 
 " 
 
 5 ■ 
 
 K) 
 
 1 Russell & Chesley. 
 
 {( 
 
 H 
 
 11 
 
 2 " 
 
 li 
 
 ^ 
 
 \'l 
 
 .S " 
 
 (t 
 
 Vl 
 
 VA 
 
 1 Russell & Geldert. 
 
 (( 
 
 > 
 
 14 
 
 2 " 
 
 (( 
 
 ;! 
 
 1.-. 
 
 ii 
 
 << 
 
 
 M 
 
 4 
 
 ft 
 
 
 17 
 
 ■) 
 
 (( 
 
 
 18 
 
 (i 
 
 (( 
 
 
 lit 
 
 7 
 
 (( 
 
 
 .20 
 
 8 
 
 t( 
 
 Admiralty. 
 
 B-Admiralty. 
 
 180;M81.S Stewart. 
 18.S4-1841 1 Tliom.,(lst Ed.) 
 1863-1881 Y. A. 1). 
 
 1873-1882 R. E. 1). 
 
 1874 Rus. Eloc. Rep. 
 
 1S:U-18.-)1 I Th()ni.,(2dEd. 
 
 lS,".;M8,Vi .lauies. 
 
 lS.-)ti-18:)!> 2 Thorn. 
 
 18.")!) Cochran. 
 
 18(iO-lS(i,-> 1 Old. 
 
 18G5-18G7 2 01(1. 
 
 isdii- 
 
 18(i!»- 
 1872- 
 187;-,. 
 187t!- 
 1877- 
 1S7!|. 
 1880- 
 1881- 
 188.S- 
 
 188:?- 
 
 1884- 
 1880- 
 1887 
 
 I8(iy 
 
 1872 
 
 187.-> 
 
 1870 
 
 1877 
 
 1879 
 
 1880 
 
 1881 
 
 1882 
 
 1884 4 R. 
 
 1884 !-■) R. 
 
 1880 it) R. 
 
 1887 
 
 1 i\. S. D. 
 
 2 X. S. D. 
 .-J X. S. 1). 
 
 1 R. & C, 
 
 2 R. & C. 
 :? R. & ( '. 
 1 R. &(i. 
 2R. & (;. 
 
 3 R. & (J. 
 & O. 
 
 & (;. 
 & (;, 
 & (;. 
 
 20 X. S. R., 
 (8 R. tS; G. 
 
 R. 
 
 Murdoch's Epitome, cited as Murd. Epit., contains notes of s<in.c Xova .Scotia ca-ius which 
 have been included in the Digest ; 
 
 Cassels' Reports of the Supreme Court of Canada are cited as S. C. R. ; 
 Cassels' Digest as Cas. Dig. ; 
 Canada Law Times as C. L. T. 
 
DIGEST 
 
 OF THE 
 
 NOVA SCOTIA 
 
 COMMON LAW, EQUITY, VICE-ADMIRALTY, 
 AND ELECTION REPORTS. 
 
 THE LATEST REPORT INCLUDED IN THIS DIGEST IS 20 N. S. R. (8 R. & G.) 
 
 ABANDONMENT- 
 
 OF SHIPS OR CAROO. — .S'et INSURANCE. 
 
 ABATEMENT- 
 
 I. OF NUISANCES.— .S'te CRIMINAL 
 LAW. 
 
 II. PLEAS IN.— .S'ee FLEADINCJS. 
 
 ABSENT OR ABSCONDmO DEBTOR. 
 
 I. WHO MAY BE PROCEEDED AGAINST. 
 
 1. Man of War Sailor- A sailor coming 
 into tlie Province, for a sliort time, in His 
 Miijesty's service, ciin scarcely lie the person 
 intun<kMl by the Act (1 Geo. .3 e. 8 of Nova 
 Scotia), iin-lcr tlie description of an absent or 
 absconding debtor. 
 
 The Bermuda, Stewart, 231. 
 
 2. Effect of appearance on question of 
 
 jurisdiction— Plaintiffs, iloing business in the 
 State of New York, issued an attachment 
 against defendant, a dealer in preserved gf)ods, 
 residing in Maine, as an absent del>t(jr. It ap- 
 peared that defendant had for several years con- 
 tinuously carried on business, through agents, 
 at Sable Island and other places in Nova Scotia, 
 wliich defendant admitted tluit he occasionally 
 visited in prosecution of his business, renuiining 
 a few days. One of the plaintiffs swore that a 
 consiilerable portion of the claim was for money 
 advanced to enable defendant to carry on his 
 bushiess in Nova Scotia, and that he verily 
 believed that a large part, if not the whole 
 claim, arose in Nova Scotia. Defendant swore 
 that no part of the claim in suit could be for 
 indeljtedness contracted in Nova Scotia, and 
 that he had not carried on any busuiess with 
 plaintiiT, within the Province since the date of 
 the first item in tlie partiLt:Iar8 of demand. 
 Held, by DeslJarres, J., (who delivered the 
 judgment of the Court), that facts had been 
 ; sworn to by plaintiff, which, if true, gave the 
 I Court jurisdiction, that it was not for the 
 Court to look at conflicting statements in the 
 I afiSdavits, and, further, that defemlant could not 
 
s 
 
 ABSENT OR ABSCONDING DEBTOR. 
 
 raise the (piostidn of jnri.sdictiDU after liaving //</</, tliat this was a defect which might be 
 tiled an appeatuuce ; Wiiiiiiis, .J., dii^ditiinj. cured l)y waiver. 
 
 Dudley, ef. nl. v. Joins, 1 R. & C".,;j(M). ' A//nii v. Ca-in-,//, \ Old., 40ri. 
 
 3. Absent on pleasure or business— Wheie 
 
 a pai'ty goes out of the province for a short time, 
 either on Imsiness or jileasure, leaving his 
 family, rftfiileiit therein, he is not an alment 
 debtor, within the meaning of the Act ; hut 
 when he terminates his Imsiness, removes his 
 family, and his affairs are in a state of embar- 
 ras.sment, he will come witl-.in the Act. 
 
 S/nn- t.f a/, v. Mnin-iy, 2 'I'hom., 244. 
 
 4. Necessary that defendant has resided 
 
 or debt being contracted in the province— To 
 enal)le ])laintitl' to maintain an action against 
 defendant as an al>sent delitor, defenitant must 
 have resided or the debt have been contiacted j 
 within the I'rovincc. 
 
 Cochrfiii V. />/(;(('a», '2 '1 hom., SO. 
 Mi/chimii v. JJniicaii, Id., 8(j. ; 
 
 5. Acquisition of Real Estate by non-resi* 
 
 dents — The purchase and ac(|uisition of real ' 
 estate in this Province by a i)arty who has I 
 never resided or done business therein, either by 
 himself or agents, is not sutiicient to Ijring him : 
 within the jurisdiction of the Court as an ab- 
 sent or al)sconding debtor. ! 
 Cochran v. Duimtii, "iTIiom., SO, afHrmed. 
 Mills V. Smith, •_' Old., JSO, I 
 
 II. AFFIDAVIT FOR ATTACHMKXT. i 
 
 I 
 
 1. Intituling—Description of Deponent— ' 
 
 I" is no objection to an athdavit for attachment 
 against an absent or absconding debtor that it 
 is heatled in the cause, nor that the ileponent, 
 who was the plaintitl', described himself as "I, 
 A., of Shelburne, merchant, the defendant in ; 
 this cause," as the latter words may lie rejected i 
 as surplusage. 
 
 Allan v. Casinll, 1 Old., 405. \ 
 
 I 
 
 2. Before whom sworn— Where the affi- 
 davit on which an attachment was grounded was 
 made before a .lustice of the Peace, and it ap- 
 peared that a connnissioner for the County was, 
 at the time, at his usual residence, within three 
 miles oi' the place where the aftidavit was made, 
 the attachment was set aside. 
 
 Knod'l V. Jhsf, 2 Thom., 149. 
 S^ee Infra iii. 12 ami Ifl. 
 
 4. Claim sounding in damages— U'here 
 
 the affidavit on which to ground an attachment 
 contained a claim in an action sounding in dam- 
 ages, hi Id, that the ])i'ocesscoidd not be sustaine<l. 
 
 /Vr Bliss, J. Wlienever the case is such that 
 I if bailable process were to be issued, a special 
 order of a Judge would be reijuired, the writ of 
 attachii.ent cannot be issued. 
 
 .Viiiison V. .Uiirison, 1 Thorn., (1st Kd.), 102; 
 (2nd Kd.). i:tl. 
 
 Rut •(«'.; r)th Rev. .Stats., c. 104, O. xlvi, R. 2. 
 
 5. Statement of cause of action -Defects 
 
 in — Bad in part — An attinhuient ca-mot be sus- 
 tained for unli<|uidated damages : and wiieii a 
 claim for such damages is iniited with a demand, 
 for which an attaciiineut coidd be ^ustained, it 
 will invalidate the whole proceedings. 
 
 t)verruled bj- Mrjjonald v. Frasir,li R. & O., 
 203; and «-, .'.th Rev. .Stats., c. 104, O. 
 xlvi. R. 2. 
 
 .]/ iirisoii v. Miirison, 2 Thorn., 252, 
 
 6. Cause of action Indorsement on writ 
 
 — Amount too large —Allowance of writ not 
 nece.saary — The atlidavit for attachment against 
 tlefendaiit as an alisconding delitor set out that 
 defendant Wiis indebted to plaintitl' in the sum 
 of .':<H2.82, for tiiat plaintitl", by his promissory 
 note, itc, had promiseil to pay plaintitl', as 
 guardian .^oti.TO, with interest, itc. Also, that 
 defendant was indelited to plaintili" for expenses 
 in comiection witli said note. 
 
 Held, that as there was nothing in the expres- 
 sion as to expenses to indicate a legal liability, 
 the affidavit of a cause of action in that respect 
 was not sufficient, but that a distinct "cau.se of 
 action" was shown ami could be gatiiered from 
 the atKdavit to the amount required for an 
 attachment, and although the writ was not in- 
 dorsed for the amount so shown, but for a larger 
 amount (/. t. including expenses), the attach- 
 ment could not be set aside on that ground. 
 The indor.sement of the amount need not be 
 signed by theCommissioner,nnrthewrit allowed. 
 McDonald, C. .)., dissi ntiiiij as to the necessity 
 jf signing the indorsement. 
 
 McDonald v. rraso; 3 R. & O.. 203: 
 2C. L. T.,(10(i. 
 
 3. Claim for Interest- Xo contract to pay I. Trustee -Suflllclency of Affidavit by — 
 
 — The affidavit stated the debt to be for goods Where ])laintiir, as trustee, olitained a writ of 
 sold anil for interest, without alleging a contract attachment on an atlidavit, which set foith that, 
 to pay interest, or distinguishing the amount from proceedings on tile in tlie Court, it appear- 
 due for interest. ed, that defendant stood indebted to the trust 
 
ABSENT OR ABSCONDING DEBTOR. 
 
 6 
 
 fiitiil ill tlie sun' of .t!'J!l0.4H. and conuliulcil thus : 
 " Anil tliis (li'ponent fiiitlu'r saitli tliiit liu vuiily 
 bvliuvtM timt tlie siiid .liiliii MLl'iiitnL'y is 
 afi'iiriliiiiilii iliilelitud to tiii« cKpoiient, us Miili 
 trui'tuu in tlicsaid Niini," iitlidiivit licld sullicicnt. 
 Kask V. McCartiiij/, '2 Tlioin., lt>7. 
 
 I 
 
 8. Aflldavlls as to absence -An .uiaLlnncnt 
 
 iigiiin.st a dctViidiint as iin id)S(;iindingilelitor will 
 l)f set a.-ido on tlii' dcfindant shewing that 
 having left tiic I'l-ovince with the intention of 
 I'etiiining imniediatuly, his alisenee was pro- 
 longed l>y linavoidalile delays in eoneliiding his 
 linsiness. 
 
 Miirdorl; v. Hmjlux, James, .'WS. 
 
 0. Prncess aj^alnst absooiulins debtoi*, 
 
 burden on creditor Against absent burden on 
 debtor - //'/(/, that when attaeinnent issues 
 against a party absconding, plaintitt' must fur- 
 nish clear evidence of the fact to t!i" Court to 
 prevent the exercise of their summary juris- 
 diction in setting it aside. Hut wlu'U against 
 party absent, defendant must prove that such 
 absence was temporary, and the issue of the 
 attaeinnent an abuse of the process. Bliss, .1. 
 (/(«< iitiiiij. 
 
 IliKii •! III. V. Sniih , 1 Thorn., CJnd Kd.), 200. 
 
 10. Affidavits as to absence — I'rocess 
 
 against a party as an alisent or alisconding debtor 
 will be .set aside upon atiidavits that he was at 
 home and alxjut his oi'dinary business when the 
 process issued. 
 
 The fact of a defendant merely keeping out of 
 till! way of service of pi iccss is not a sutKcient 
 grounil to sustain process agiiinst him as an 
 alisent delitor-. 
 
 (Juncfi — Whether writs of attachment and 
 stnnmons against absconding dcbtoi's should be 
 made returnable under I'raet. Act, Acts IS.")."}, 
 e. 4 sec. IM, or under Acts 1S.")4, c. 7, sec. 1. 
 
 •Slaplcifl III. v. Taylor, James, 'A'H). 
 
 11. Affidavit ns to absence— Process was 
 
 issued against defen^'unt as an alisent or ab- 
 sconding debtor on the usual atlidavit. Appli- 
 cation to set the process aside was supported 
 by defendant's alKdavit setting out that he liad 
 never been out of tiie l'ro\ inee, but had merely 
 gone to Annapolis and elsewhere in the Province 
 on business. Aliidavits were read in answer 
 showing that the members of defendant's family, 
 one of whom had been constituted his agent, 
 had given " unsatisfactory if not contradictory" 
 answers to iniiuiries, and that the defendant's 
 son on one occasion iiad stated that his father 
 was in Toronto and he expected was then on 
 
 his way home. Held that the defendant was 
 rightly proceeded against under the Aliscomling 
 Debtors' Act, 4tli R. .S., c. !I7, s. 1. 
 
 h'liit V. Adli„iii(,,i. '1 \K. k ('., 14. 
 
 III. ATTACHMKXT, WFITor. 
 
 1. Equitable claim — An attachment may 
 issue for an ei(uitable claim. 
 
 A'((.</i V. MiCarhii I/. '2 Thom.. lt)7. 
 
 2. Writ issued by Assij^nee of chose in 
 
 action— Notice of assignmtnt unnecessary be- 
 fore is.«ue of— 4th Rev Stats., c. 94, .sec. .S57 
 — I'laintitV, as assignee of .J. .S. Mel)., to whom 
 defendant was indebteil, attached certain goods 
 of the clebtor ; chattel moitgagees sought to 
 '. .s(!t asiile plaintiH's attachment, on the ginund 
 j that the debt was not "justly due " and "jiay- 
 lable" to plaintitt', as there had been no notice 
 j given by jjlaintirt' nmler 4th Rev. Stats., c. !)4, 
 I sec. .'{.")7. 
 
 I //'/(/, that notice was not neces.sary in order 
 to eiuible plaintitt' to attach, cf. 5th R. S., c. 1(»4, 
 (). l.\i. 
 
 /'ui-snus V. Mar I. Kill, .S R. & <;.. 41)."). 
 
 3. When attachment binds proper!} -An 
 
 attachment against an alisconding clelitni' does 
 not bind property not actually levieil upon. 
 
 Cnii/hfon it ul. v. Daiii'U, James, 804. 
 
 4. Attachment and summons for at,'ent 
 
 binding, although appearance entered and 
 common bail filed— When the defemlant is liable 
 to be ])roceeded against as an absent or ab- 
 sconding debtor, the plaintitt' will be entitled 
 to retain the goods taken under the iittueinnent, 
 and the goods, etl'ects and credits in the hands 
 of a duly sunnnoncd agent of the defendant « ill 
 be l)Ound. even althoutrh the defendant entei' an 
 
 I appearance ami tile connnon bail in the action. 
 
 I Stun- v. Muiir, ij, •_> Thoni.. •_'44. 
 
 I .1. .lurisdiction Sheriff's return Where 
 
 I .Sheritt "s return stated that he had attaciied 
 goods " f(.« ■ the projiertj- of the absent ilebtol-. 
 Ill III. not to be a return warranting the t'ouit 
 in assuming jurisdiction. 
 
 To give the ( ourt jurisiliction the return 
 should state positively tiiat tlu^ .Sheritt' has 
 attached goods or estate of the absent debtor. 
 
 Itdli'liford V. ('Iiiji»iaii, '2 Tiiom., '2li't. 
 
 6. Jurisdiction — Sheriff's Keturns — 
 
 Amending — Actual seizure of property, belong- 
 ing to the defendant, under the attaeinnent or 
 the summoning of an agent who has goods, &c., 
 of the defendant and not the slieritt's return 
 
ABSENT OR ABSCONDING DEBTOR. 
 
 8 
 
 iiieiL'ly givof) tlu' Court jurisdiction in iiinci's.s 
 (iguinst tiliMcnt or iiliHooniling ilubtor. 
 
 ItntchUird v. Clii/niuiii, '2 Tlioin., 'J.M.'), di.stin- 
 guisiifd. 
 
 Mnr'nou V. lUnjil, "J Tlioni., 'IVi. 
 
 10. MortgiiKe recorded Then atturhmcnt 
 
 —Then aHHignment of mortgiige - Attacliing 
 
 creditors do not acquire property over HHsignee 
 
 'I'lio (lefeiuliint, lioiding a mortgage on curtaiu 
 
 real estate wliiuli was duly reconlid, assigned 
 
 Ti.e Court will pmnit ti>e ^i.^riil' ,o unuanl '''^' *'="'''^ ^'' ^''^ •'''""^i''"^' '^f'^'' ^'''y'' '^^^^^^^^^^^ 
 
 his return to a writ against an alisent delttor, 
 so as to state that the property attached was 
 the property of the absent dehlor when the 
 ownersiiip of the property is nut disputed. 
 
 ll,id. 
 
 7. Return to writ of— <?«««« — Whether 
 
 purchased the eipiity of i-edenij)tion, and the 
 deed was didy recorded. Attichnients were 
 thi^n issued against the defendai.: as an abscond- 
 ing debtor, and the attachments, \\h well as the 
 judgments entered thereon, »>X'ro placed ou 
 record before the assignment of the mortgage. 
 'I'lie attaching creditors claimed, under 4tli Re- 
 
 writs of iittachment and summons shouhl be vised .Statutes, c. 7!», sees, lit and '2^2, to nave 
 
 made returnable umler Pract. Act, Acts IS.").'}, I»"i'»'ity, as against tlie assignee of the mortgage. 
 
 0. 4, sec. 10, or under Acts of bS.-)4, c. 7, sec. 1. H'l'l^ that the mortgage remained a lien on 
 
 S>apf<s i:t a/. V. Taylor, .James, .'f-'d. ^Iie property, whether the assignment was rc- 
 
 I corded or not, and that the att^iehing creditors 
 8. Attachment, writs of Priority— The \ ha<l not the priority claimed. 
 
 attorney of A, B and C, on the Kith .luly, took 
 out writs of attachment which were levied on 
 property of the defendants in Halifax County 
 on July ITtli, and on July litth he issued a writ 
 of attachment, at the suit of 1)., which was for- 
 warded with the other three writs on the same 
 day to the .Sheriff of Hants, where they were 
 levied on defendant's property there. On .July 
 17th, a writ was issued at the suit of E, and 
 levied on the Halifax property on the same day, 
 but subsequently to the levies at suit of A, B 
 and C, and on the 19th July a writ was issued and 
 levied on the Halifax property at the suit of F. 
 
 HiM, reversing the decision of Young, C. J., 
 who had confirmed the reiM)rt of the Master, 
 that the property levied on in Hants had been 
 rightly appropriated in the first place to the pay- 
 ment of D's claim, and the balance to the claims 
 of A, B and C. 
 
 Hdd, also, that an appeal from the order of 
 Young, C. J., having been refused a motion to 
 rescind it could be resorted to. 
 
 In re, Cameron's Circus, 2 R. & G., 248; 
 1 C. L. T., 709. 
 
 9. Waiver of Irregularities— The affidavit 
 
 stated the debt to be for goods .sold, and for 
 interest, without alleging a contract to pay inter- 
 est, or distinguishing the amount due for interest. 
 Hi Id, that this was a defect which might be 
 cured by waiver, and that it was so cured in 
 this case l>y lapse of time and a step taken in 
 the cause, though the step itself was a nullity, 
 as it appeared that the attachment was issued 
 in June, 18G2, and the defendant, in July, 1862, 
 by letter, spoke of the suit and admitted the 
 del)t, — tliat judgment was entered in May, 
 186.3, and that the defendant filed an appearance 
 and plea on 3rd October without leave. 
 
 Allan V. Ca-sicell, 1 Old., 405. 
 
 Raymond ct al. v. liichardx, R. E. 1)., 423. 
 
 11. Sheriff Justifying under writ of attach- 
 ment— Must prove indebtedness— Affidavit of 
 attachment not uufficient proof— Where the 
 defendant, as sheriff, seized, under a writ of 
 attachment, goods in the ptissession of the plain- 
 titf, to whom they had been transferred by the 
 alleged absconding debtor, and the transfer was, 
 in a suit by the plaintiff against the sheriff for 
 the alleged conversion, attacked as fraudulent. 
 Held, that tlie justification of the seizure under 
 the writ was not complete without proof of an 
 indebtedness from the alleged absconding debtor 
 to the party attaching, and that the production 
 of the affidavit on which the attachment issued 
 was not sufficient for that purpose. 
 
 MilLt V. McLean, 1 R, & C, .S79. 
 
 12. Conflicting statements In affidavits— 
 
 Conflicting statements in affidavits are not re- 
 garded in application to set aside attachment 
 against absent delators, where facts have been 
 sworn to by plaintifT which, if true, gives the 
 court jurisdiction. 
 
 Dudley at al. v. Jone», 1 R. & C, 3(J6. 
 
 13. Assignment under Insolvent Act 
 
 after attachment issued, but beforejudgment— 
 Assignee entitled to money paid into Court as 
 proceeds of sale under order in the attach- 
 ment suit— Plaintiff, on the 16th August, 1873, 
 issued a writ of attiichment against defendant, 
 an absconding debtor, the affidavit of debt des- 
 cribing him as a trader. Defendant's goods 
 were attaclied August ,30th, and, pursuant to a 
 judge's order, made September 4th, were sold 
 on iSeptendier l,")th, and the money was paid 
 into Court on October 7th, to respond the plain- 
 
9 
 
 ABSENT OR ABSCONDING DEBTOR. 
 
 10 
 
 till s illil>,'IIU'llt, llftff uhicli, (Ml tile I'.ttll ()ct'>- 
 JM'f, (wowciliiijis were tiikiMi iiiicli'C tlii' IiihoI- 
 vent Ai't of 1S7."), Ik )nil (Iffi'lidiillt'f* cst.ltt' ill 
 (•riMij)iil«i'ry liiniiiliiticin, iiml tlic c.xtiiti' |);iKSfil 
 into till' liiiiuls of tilt! iisMi;.'Mi't'. i'lniiitill'i'laiiiii'il 
 a lii'li illliic'l' ills uttiiclililciit ; Ihlil. tlliit the 
 aHsij.'in'u wiis ciitititil tu the iiKHicy jiiiiil iiiln 
 Cuiirt. 
 
 14. Asslgnre under IiiNolvent Act— KIkIUm 
 
 of before jiiilyment to iirojurty attached 
 \Viits of altucliiiifiit iij,';iiiisl the iiiort^';i;4(pi', an 
 nil .iliseoiiiliiij,' (li'litor, wiTt; isMiiiMJ, and dcliver- 
 cil to the shciitlon M:iy'.'t»tli. An a|)i)niisiiiuMt 
 (if the iiiort;,'iii,'i'il jirciiii.ses was iiiaile, ami iiopifs 
 (if the Wlit, with the appiaiseliieut aliil cle.srn|)- 
 linii of the land, were legisteied on May iMst. 
 On the saints day a Wlit of iittiiehnient, under 
 the iiisolvent Act of llSliO, wa.s taken out iij,'aiiist 
 the niort^'at;or, Imt was not delivered lo the 
 Kheiiir until after' hi! had re','i.stered the doeu- 
 lie'iits iiiiimvfed with the |)rocuei lings under' ihe 
 Aliseondiii!,' Dehtois' Aet. 
 
 I[il<l, that the eliiiin of the assignee of the 
 t'state to the sui'iilus jiroeeeds. must pr'evail 
 over that of the attaching creditors. Section 
 2\. of c. 7!l. 4tli K. S., is eontriilled liy the In- 
 
 pnlvellt Act. 
 
 A/ moil it (il. V. <!nn/ </ <il.. K. K. I)., 11. 
 
 15. Property rraiKliilcntly nsslKned At- 
 tachment of .su.^taiueJ Defi'ii laiit a|i|)lied to 
 .set aside a wi'it of attacliinent, levy and shelitl's 
 retur-ii on the gi'ouiid that tids Court had no 
 jiirisilietioii ln'cause the property attached was 
 not that of the defeiiflant, liaviiig heeii oonveyud 
 to a trustee in trust for his wife some time jire- 
 viously. Atlidavits were read in reply to shew 
 that the trust deed was made fraudulently and 
 in contemplation of insolvencj'. 
 
 The rule was ilischnrged with costs. 
 
 Thoiiijis.iii V. /•://!■■<. i R. & (;., .SOT. 
 
 16. Creditors' nssijj^nec lti;a^lit.s of, agiiinst 
 
 att:vching creditors — .1. ('. died about the year 
 I.Sd'J. ])ossesseil of a fund amounting to t8,ti3S 
 ■_'s. 4d., wliieh he devised to trustees upon cer- 
 tain trusts in favor of his daughter and others, 
 iiriil upon failui-e of such devises, then to his 
 nieces or- their' lawful issue. The original de- 
 vises in the will having failed, a r'ule was ]> issed 
 in the I'^ipiity Court on a suit instituted liy the 
 trustees liy which it was ordered that a portion 
 of the fund shouhl lie distrilmted and j)aid liy the 
 trustees in certain pi'oportions among the next 
 of kin of the .said J. C. 
 M. \V. being entitled as one of the next of 
 
 kin, with .1. S. W. her husband execulid a 
 power' of attorney to S., enipower'ing him to 
 
 ' receive the iiiomy coming to her by virtue of 
 the said will. On the ."ird April, iHliH, S. received 
 under said jiower the sum of .'?l,!f27, which, on 
 tin' same day, was attaehi'd in his hands by 
 K. r>. on process issued against .1. .S. W., the 
 hrbb'cud, as an absei.'t or ubsconding debtor. 
 Or. the 'J.'ti'd l'"ebi'uary |ireviously, d. .S. W. had 
 
 ' li.'eii adjudicated a bankrupt in i'liigland, and a 
 creditors' assignee was appointed. Notice of 
 this was received by S, on May "Jlst, I.MiS. but 
 
 ' no notice of the bankruptcy had been received 
 by K. U. at the time of the issue of the attaclimeiit 
 prdcess. .S. was iiotilicd by .M. W. on duly 
 •_'!ttli. ISI'iS, that she claimed the fund in i|Ucs- 
 tion in her own right, and she followed this uj) 
 
 I by a suit in l''.i|uity. 
 
 ! //•/'/, on a case prcpar'ed that the creditors" 
 assignee was entitled to the fund as against H. I!. 
 
 ' the attaching cri'ditor'. 
 
 ' //(A/, also, llial the bankrui)tcy of .1. S. W. 
 
 I determined llii! ]iowel' of S. to r'eccive tlic fund, 
 that it had not been reduced into possession, 
 and that it, therefore, must be treated as if still 
 remaining in the li.iiids of the trustees. 
 
 Jl(/il, also, that tlii! cr'editois" assignee was 
 
 ' rrot entitled to the fuiiil without making ])rd- 
 visiori for' the wife, and that the latter, beirr<' 
 
 1 eiititli'il to the fuiul as a rhn.ii In iirliim^ w'as 
 
 justilied ill coming into eipiity for' her pidtection. 
 
 Ililil, also, that as .J. S. \V., the husliand, was 
 
 a liankrujit, and the sum in controversy not 
 
 large, and .M. \V., the wife without any ])ro- 
 
 vision made befoi'e or at the time of her' m.irriage, 
 
 the taxable costs being til'st ])aid. the balance of 
 
 tlu' fund sliould be paid or'secur'ed to her' for- her- 
 
 own bcnetit. 
 
 /i'oy«(/' v. y,li<uiiinii, ■_' \. S. ])., 14(). 
 
 \1. Subsequent uttaclier KIglil or, when 
 
 debt of first attacher' secured — \\'lieii T. , a 
 snbse(|ueiit attacher, in his alHdavit in sujiport 
 of a motion to set aside ])r'ocess of pr'eceding 
 attacher, stated that the plaint ilf was secured, 
 in part, by a mortgage and that, if the direc- 
 tions of the Court of Chancery had been com- 
 plied with, security had been given for tlie 
 whole amount. 
 
 Held, that T. had shown a riglit to interfere. 
 The Cour't dii'ectcd a jury to iii(|uir'e whether 
 ])lairititr had any and what good and sutlicieiit 
 
 security. 
 
 Xa<li V. Mr/'rirhi' I/, '2 Thorn., KiT. 
 
 18. Attarlinient, writ of-lteturn day -Set- 
 ting aside for benent of subsequent attacher^ 
 A writ of attachment against an absconding 
 debtor will not be set aside for defect in the 
 
11 
 
 ABSENT OR ABSCONDING DEBTOR. 
 
 12 
 
 li'tui'ii iliiy except iit the iiiwtiiiice (iiul for the j 
 tielietit of tlie ilefemlimt ; iiinl wlici'e groiin(l» 
 are liiid for Hii|)|icisiii;{ thiit tlie ii|)|)li>"itioii iiiiiy 
 )((• lliiiih' fill' the interest of a siiliseiiuelil iit- 
 tiU'hc'r the Court will reiniire iitHil;ivit-i to the 
 contrary liefore j.'riintini.' the rule. 
 
 ',<(«(</■' —Wliet her wiits of uttiiciniunt •-liiiiihl 
 ho niiide retiuimhle on ii !*|>ecial return ihiy or 
 umler Act of IS.'it, c. 7. Cri iii/tliui it (i/. v. 
 I hiiili Is, .Iiinu's, ;U7. 
 
 lU. Scllliie aside profeiMliiiKN Who may 
 
 move— IMiiintiir liaving |)roceecUil aj^aiiist liu- 
 femhmt as an ahsent (hlitor an a|)|ilicatiiin was 
 niacU' (in hehalf of one Willis claiming; to lie 
 owner (if the property attached to set aside the 
 ])i(iceedin>,'s. It a)i])cai(Ml that defendant had 
 two others in ])artnership with him in the Im.si- 
 iicss in connection with which tlie deht arose, 
 one of whom was in the Province at the time 
 the process was issued. 
 
 //</(/, that, neither defendant nor either of his 
 partners having moved, there was no one 
 before the Court who could he heard in support 
 of the contention that defendant when sued was 
 not suliject to the law autliori/ing proceedings 
 against absent or absconding debtors. Affidav- 
 its made in Boston, ])urporting to be made before 
 I'.in^'liam, "Chief .histice of Sujjreme Court," 
 without specifying the court, held good, when 
 the jm'at contained the words " the seal of which 
 court is affixed," and the uttidavit bore the seal 
 of the ])rojier court. 
 
 Itoh'-rt-toii V. Cameron, 2 R. & C, 2()1. 
 
 20. Appraisement — Sh raring Appraisers 
 
 Levy— When it may be made — From when j 
 effectual — When the appraisement shows that j 
 theajipraisers were sworn and thesherill "s return i 
 refers to the appraisers' warr.mt the swearing of 
 the appi'aisers sufficiently appeal's. 
 
 ".Service on the agent fif process to ap])ear," 
 in sec. l?(>, c. !>7, of 4th Rev. .Stats., means 
 service on the company's agent of process 
 rerjuiring the company to appear. 
 
 Levy \inder the attachment under that chap- 
 ter may be made liefore service on the agent. 
 
 The levy is eH'ectual from the time of sei'/.ure 
 of the pi'o])ei'ty and not merely after appraise- 
 ment and sel( ction of the property to be held to 
 respond the judgment. 
 
 T/i' .\f< rcliaii/x' /iniih v. The Sitel Company of 
 Cannihi (Limited ), ."> R. k O., '258. See ,'>th 
 Rev. Stats., c. 1(»4, 0. xlvi, R. 4. 
 
 21. Execution without positive instruc- 
 tions to levy— Attachment — An execution had 
 been in the .Sheriff's hands a little befcjre an 
 
 attachment, but he did not receive positive direo- 
 tions to levy itninediately under thi! execution, 
 but under the attachmeiil he did. 
 
 1 1' III, that this execution did not bind per- 
 sonal jii'operty against tiie attachment. 
 
 Mil'liill V. /{in/niiif, ;< Murd. Kpit., •_'.'{.">. 
 
 22. First allacher entllied to costs bcfiire 
 
 seeond at*aeher can come in A \esseliif de- 
 fendant had I n attached by several crcilitois. 
 
 The defendant returned to the jiroviiice a:id con- 
 fessed judgment to the first attache!', who lliere- 
 upon levied his execution for his debt and costs in 
 full, and the subse(iuent attacher, endeaMM'ed to 
 olitain a rule against the .Sherill' (who had acted 
 under an indemnity), but the Court upheld the 
 course ])ursued by the tirst attacher, deciding 
 that a judgment obtained under these circum- 
 stances was regular, and that the tirst attacher 
 nnder the absent debtor law was entitled to his 
 costs, before the subserpient attachers could 
 come in for anything, contrary to the rule in 
 attachments not uiu'er that Act. 
 
 JIurtIr V. IhnU' , ;t Murd. Kiiit., •_'.■).■>. 
 
 IV._,SUMM(1XS FOR A(;i':N'T. 
 
 1. Who Is an agent, &f. Prize agent - 
 
 A prize-agent is not either an attorney, factor, 
 
 agent or trustee within the meaning of the Absent 
 
 and Absconding Debtois" Act (1 (ieo. '^, c. S of 
 
 Nova Scotia.) 
 
 'I'hi /{irniiiiln, Stewart, '-'."{I. 
 
 2. Deposit in Savings Banii in debtors' 
 
 own name of money not his— ^Cashier not an 
 agent — When an absconding delitor deposited 
 money belonging to others in the .Savings' Rank 
 in hi- own name, the cashier cannot be held to 
 be agent of the absconding ihditoi'. 
 
 MacAijij V. Ciiiiiior.i, '2 Thoin., S. 
 
 3. English Banlirupt— Debts due him in 
 
 this Province cannot be attached -After a 
 party has been declared bankrupt in Kngland, 
 debts due him in this Province cannot be at- 
 tached. 
 
 FrcMn- V. .Von-oir. •_' Th(mi., i.T^. 
 
 4. Actual summoning and not sheriflT's 
 
 return gives Court jurisdiction — Actual sum- 
 moning of an agent who has goods, &e., of the 
 defendant, and not the sheriff's return merely, 
 gives the Court jurisdiction in process against 
 ab.sent or absconding debtor. 
 
 Katchford \. Chipman, 2 Tlioni., 23,"), distin- 
 guished. 
 
 Murinon el al. v. Boyd, 2 Thonj. , 247. 
 
13 
 
 ABSENT OR ABSCONDING DEBTOR. 
 
 14 
 
 5. Llablllt J of agent after service - r>>o 
 
 (Irfciuiaiit's lpiii'i(iio ciin^lit tiii;, uiiil wasNUUttlud 
 mill Huiik ill lliilifiix liiirlior. Slir whs iiiiM(Ml liy 
 till' Ciiliiinl.iii Coast WrcikiiiK Cimipaiiy ami 
 siild 111 mil' (!. Wilson, at |iiiipli(; uuctioii, on 
 Drirliilpi'l-'J-Jnil, iHti.'i, iov till' sum of Oi.VJ lOs., 
 Ill' piiyiiii.' a (li'posit of t'."i(>, ami rt'tainiii),' tlic 
 lialiuic'c. On tin' null .lainiaiy, IStlti, Wilson 
 rci'i'ivfd a Mil of salt' of the liaii|ne, Imt iliil 
 not ri'pster it niitil the "iritli of May. Un the 
 1-ltli of Maii'li, ])i't'vious, the plaintitl' com- 
 ineiioc'd pioct'i'iliiiLis aj^aiiist defemlant as an 
 alwi'iit or alisi'omliiig ilelitor, nmler which the 
 hai'ipie was attached, and, on the Utth of the 
 same inonth. Wilson was served with a sum- 
 mmisi, as defendant's agent, in order to liiiid the 
 lialanee still remaining in hi» hands. Suhso- 
 (pient to the service upon liini of the »iiinnioii.s, 
 Wilson, out of the funds in his hands, paid to 
 the agents of the Wrecking Company the sum 
 of i^sH.S.tiT, f'>r their demand for salvage services. 
 Jfi/d, iiifi r alia, that having done so with 
 notice of plaintitr's intei'est in the fund, and 
 without enal>ling him to c<intest the Conijiany's 
 claim, in whole or in ])art, he must lie regarded 
 as having made the jiayinent of his own wrong, 
 and that plaiiititl"s right to the fund could not 
 be prejudiced thereliy. 
 
 Oxhyx. S/iearirater, 1 X. .S. I)., 144. 
 
 6. What property in hands of agent bound 
 
 by — H. McK. was .><unnnoned to ai)pcar and lie 
 examined as to whether or not he was agent or 
 trustee of the defendant, an aliKsnt or abscond- 
 ing debtor, and as to whether he had goods or 
 credits of such defendant in his possession or 
 under his control. 
 
 Defendant had made an assignment to H. 
 MoK. for the benefit of his creditors, including 
 a debt due by C. Bros.. At the time of the 
 issue of the sunnnons, McK. had no money of 
 defendants in his hands, but two days after- 
 wards C. Bros, paid the amount due by them. 
 All of defendant's creditors who had executed 
 the assignment had previously been paid in full. 
 
 Hild, that the debt due by ('. Bros, to defen- 
 dant was in McK's. hands covered by the words 
 of the Act "goods and credits of the absent or 
 absconding person then in his possession or 
 under his control," and that plaintifT was 
 entitled to execution therefor. 
 
 Rohertmn tf al. v. U'i/liamti, 6 R. & (i, 393; 
 
 6C. L. T., 488. 
 
 7. What property in hands of agent bound 
 
 by operation of Absent Debtors' Act— Prize 
 
 the custody of the Court of Admiralty until 
 iictual judgment, and courts of law have no cou- 
 current jurisdiction. 
 
 A prize agent is not either an attorney, fac- 
 tor, agent or trustee within the meaning of the 
 Absent and Absconding Debtors' Act, 1 (Ico. 3, 
 c. 8, of Xiiva .Scotia. They are in reality ap- 
 pointed by the I'ri/e Act for certain purposes 
 and are rather otHcers of the (^inrt of Admiralty 
 than agents of the parties. 
 
 A sailor, coming into the i'rovince,'for a short 
 time, in His Majesty's .service, can scarcely be 
 the person intended by the Act, under the des- 
 cription of '(// nlisciit iir uhsraiiilliiij ililitiir. 
 
 The Act does not apply to prize money, 
 because it is not the property there described, 
 and because neither the prize agents, luir sailor 
 himself, are the persons against whom it is 
 directed. 
 
 'I'ho Act cannot apply to prize money because 
 such an interpretation would make it repugnant 
 to the Prize Acts, and therefore so far illegal 
 i\nd void. 
 
 A decision of the .Supreme Court of the Pro- 
 vince, apparently to the effect that prize money 
 may be attached in the hands of prize agents, 
 reviewed. 
 
 An attachment tnken out by a creditor against 
 a prize agent for ])rize money in his liands not a 
 bar to the -laim of (Greenwich Hospital for 
 unclaimed shares of ])rize money. 
 
 Tht Bermuda, Stewart, 231. 
 
 8. Second summons to same agent— It is 
 
 no objection to a summons to bring in an agent 
 under the absconding debtor process, that a pre- 
 vious summons has been issued for the same 
 agent. 
 
 Halifax BanMwj Company v. Worrall, 5 R. 
 & G. , 7t). 
 
 9. .4ssignee of debtor Tor benefit certain 
 
 creditors — Assents to debtor's instructions to 
 pay certain other creditors as well — Where 
 such payments will exhaust whole fund in 
 assignee's hands, the assignee has nothing 
 which can be attached — A creditor to whom 
 an absent debtor had assigned all his goods, in 
 trust for the benefit of certain creditors, re- 
 ceived a letter from the debtor directing pay- 
 ment of surplus proceeds to certain other 
 creditors. Assignee expressed his willingness 
 to comply with such directions. 
 
 Hehi, that not having sufficient to pay the 
 parties mentioned in the letter, there was 
 
 ninney cannot be attached until the property has j nothing which could be attached in the hands of 
 become absolute and vested by the Prize Act, i the assignee as agent. 
 
 either by a demand in person, or l)y an acknowl- l 
 edged power of attorney. The property is under 
 
 Metzkr v. Harvie, 1 Thom., (Ist Ed.) 38; 
 
 (2nd Ed), 64. 
 
15 
 
 ABSENT OR ABSCONDING DEBTOR. 
 
 16 
 
 10. Discharge ofparty siiminoncd as agent 
 
 — When to be granted -Construction of 5 R. 
 S. c. 104, (). xlvi, R. 18— (i. >*>: K. were suiii- 
 liioned to iipjjfar iis agents of tlie dcfeiiilant I'., 
 an absent or absconding debtoi', to <liMoIo.su what 
 goods, credits or erteets of 1'. were in their 
 hands at tlie time of tlie service of tlie writ 
 iilioii tlieni. <;. iS: K. appeared severally and 
 denied having any goods or credits of P. in theii' 
 possession or under their control with the ex- 
 ee])tiiinof (■crtuiu goods which had been deposit- 
 ed witii them as sueurity for an uni)aid balance 
 of account. (!. & K. were thereupon discharged 
 under an ordei' of the Chi-'f Justice at Clmmbcrs. 
 
 Ifild, on a])]ieal //< /' James, .J., tiiat tiie woiils 
 of the Act, .")lh K. S. c. 104, O. xlvi. R. IS, in 
 relation to tlie discharge of the agent, only 
 apply to cases where he has tiled a declaration 
 that he had not at the time tlie sumnioiis was 
 served u])on him, any goods, ell'ccts or credits of 
 the debtor in liis possession or under his control, 
 and as (;. & Iv. admitted goods of the defendant 
 in their possession tliey weie not entitled to 
 such discharge. 
 
 Per Ritchie and McD'iiald, J. J., that assum- 
 ing that the Judge had power to grant the 
 discharge after the possession of assets was 
 admitted, which was doubtful, such <liscliarge 
 should not be granted until after plaintiti' had 
 obtained judgment and could avail himself of 
 tiu! provisions of Rule \'■^ to realize the value of 
 the goods, less (t. & K's lien. 
 
 Also, that the appeal should be allowed with 
 costs, and that the discharge should not be 
 granted, but that the lien should be reduced to 
 the amount proved, and that (i. & K. should be 
 allowed their costs of filing their declaration 
 and of appearing to be examined. 
 
 Aii(hr.<oH V Parhr, 7 R. k (J., •2i-2\ 
 7 C. L. T., ;«s. 
 
 11. Defective service of summons— ^Vllere 
 
 a copy of the summons fudy was served on the 
 agent, and no declaratif.n tiled, a judgment of 
 non-suit was given with costs to the agent. 
 
 Huh v. liohirfxon, .'? Muril. Kiiit., 14.'?. 
 
 V. MI.SCELLAXEOUS CASES. 
 
 1. Suit for proceeds by subsequent attacher 
 
 where earlier attachment set aside — Grounds 
 set out in order /(/</, but not in order absolute 
 — Jurisdiction aniply shown — The defendant 
 R., on the .ith June, 18S0, sued out a writ of 
 summons and attachment against M., under 
 which the Sheritl' attaciied certain propeity of 
 M., which was sold as perishable property. In 
 December following, defenchmt obtained an i x 
 parte ordei', on default of ajipearance by M,, 
 
 permitting him to enter judgment against M. 
 for the amount of his debt and costs, and direct- 
 ing the Sheriff to pay the amount of tlui delit 
 and costs out of the jirocceds of the sale in his 
 hands. 
 
 On January 14tli, 1S8'2, plaintiff, as subse- 
 quent attacher, obtaineil an order, making 
 absolute an order iilxi previously granted, re- 
 scinding and quashing <lefendant's summons and 
 attachment, and all subsequent proceedings, in- 
 cluding tiu; order for the payment of the jiroceeds 
 of the sale, on the grounds that the debt claimed 
 was not due or payable when the action com- 
 menced ; that the allidavit stated no proper 
 cause of action, and was irregular and defective ; 
 that the summons was not properly indoi'sed ; 
 that there was no order for the issue of the 
 summons or attachment, and on other grounds. 
 
 Defendant having refused to repay the amount 
 received from the Sheriff after demand, and the 
 Sheriff having declined to commence an action 
 against him to recover the amount or to allow 
 plaintiff to do so in his name, plaintiff com- 
 menced ])ioceeilings by bill in Equity, praying 
 that an account be taken, and that defendant lie 
 ordered to jiay the amount realized to the 
 .Sheriff or to plaintiff. The prayer of the 
 petition having been granted with costs on the 
 ground that the judgment obtained by defen- 
 dant against M., had been set asiile, and the 
 decision not appealed from or reversed. 
 
 //( /'/, that the ground stated was sutHcient to 
 su])port the judgment. 
 
 A/so, that as all th^i necessaiy facts were con- 
 tained in the order »/•<;' of the l.'ith January, 
 which was made absolute l>y the order of the 
 14tli January, IHS'J, the latter order was suffi- 
 cient, and the jurisdiction of the Court was not 
 <iuly ample but was amjily shown. 
 
 Corlii-lf it at, V. Iloliiiisoii it at. 
 
 7 R. & (;., 4S0; 
 8 C. L. T., 15. 
 
 2. Debt barred by Statute of Limitations 
 
 — \o judgment for against absent debtor per- 
 mitted — The Court will not allow judgment to 
 be entered up against an absent debtor for a 
 debt barred by the Statute of Limitations. 
 
 Smi//i V. Ciif, 2 Thom., 12. 
 
 3. Reason for Rule in above— Per Haiiimr- 
 
 ton, J. — "As the .Statute of Limitations to be 
 taken advantage of must be pleaded, and in this 
 form of action, thei'e being no defendant in Court 
 to ])lead, it is the duty of the Court to confine the 
 plaintiff to proof that is not affected by the 
 Statute of Limitations." 
 
 MfhW v. U'ooflirnnl, 3 Murd. Epit., 141. 
 
17 
 
 ABSENT OR ABSCONDING DEBTOR. 
 
 IS 
 
 I. Entcrin;; Suggestion ~ Dcrcndant out of 
 
 Province — Publication in Royal Gazette neces- 
 sary — To entitle plaiiilitr to enter suggi'stion on 
 the reeonl of a jiulgnient, nioie tlian six yeais 
 old, where ilefendnnt is out <]f th(^ {'rovince, the 
 rule must lie |)nl)lislie(l thirty days in tlie Royal 
 (Jazette. 
 
 Kdth V. CiinnliKjhnni, 'JTlioni., 14!). 
 .Vm r)th R. S., e. 10+, O. xl, R. •_';{. 
 
 5. Execution \o Bond for Execution set 
 
 aside — WiuTe an I'xeeiitinn is takm mw on im 
 nttaehnient against iu; iihscnt or ahsitonding 
 driitor, without the hond for such execution 
 having lieen allowed by the Court or a .Imlge. 
 the Court will set it asiile but without costs, 
 though tlie bond be actually made and tili'd 
 before the issue of the exeuntion, and tlu' 
 sureties unexceptional ile. 
 
 Allan V. Cam-ill, 1 Old., 40.'). 
 
 «. Landlord's lien for rent- Meaning of 
 
 "Execution" in 4th R. S., c. 107, s. 7. -cf. ,oth 
 R. S., c. 125, 8. 14 — Does not include attach- 
 ment — Sfc'tion 7 of cha])ter 107 Revised .Stat- 
 utes (4th .Series) providing tiiat no goods shall 
 be removed from tlie premises under Kxecution 
 until one year's lent or a ratable part tlieicof 
 be paid to the landlord, does not ajiply to goods 
 taken under attachment under tlie Aliscondiiig 
 Debtors' Act. 
 
 Milhrw [J Hi I, 4 U. & (i., 1. •!.".. 
 
 Rut XVI- ,")tli R. .S. , c. I'2."), s. 14, which corres- 
 ponds with 4th R. S., c. 107, s. 7. 'I'lie word 
 " attachment " has been there specially inserted. 
 
 7. Effect of appearing; l)y liiing common 
 
 bail, &c., in absconding process —'I'lie Court 
 was apiilied to on the part of the defeiidaiit. fur 
 an oilier to strike out the wor<ls absent and ab- 
 sconding debtoi', from the proceedings mi lill^ the 
 defendant's iittorney-at-law having tiled an ap- 
 pearance ill the usual form, but the Chief .lustire 
 ( Rlowers) refused to grant the rule, as he said 
 that a party might be abaconiling to-day and 
 not so to-morrow. The Court saiil that the rule 
 of practice was established, that on entering an 
 appearance to an action, commenced nuclei' tin- 
 first section of theAbscoinling Debtors" Act (such 
 as the case under discussion was) by filing eoiii- 
 mon bail, .and a warrant of attorney, and giving 
 notice of appearance, the absconding character 
 of the action was cured and eft'aced. 
 
 Mi'Dniiijal v. Iliii-ihilirnoil, 
 
 SMurd. K])it., 14.'). 
 
 8. Sale by Corporation 
 
 Stats., N. S., c. 97, and c. 53, see. 15— I'laintill 
 purehased all the personal pinjierty of the L. 
 Coal Milling Co., after the Com]>any had lieeome 
 hopelessly insolvent, receiving a bill nf sale 
 signed by the agent of the Company, but imt 
 sealed with the eoi]iorat.e seal, proveil to have 
 been jiossessed by the Coinpany. He timk ]ios- 
 session of the goods at the time of the sale, and 
 i'(niiaiiied ill possession until the eause of artimi 
 indicated below arose. 
 
 //'/'/. in action agi;"!iist a .Sjierilf for selling, 
 the goods uiicler an order of the .Sii](reiiie 
 Court, following a levy under a writ of attach- 
 ment against the L. Co.al Mining Comi)aiiy. that 
 under the ])rovisions of ciia])ter ."t.'i, Ith K. .s.. sec- 
 lioii 1."), the use of the corp.irate se.il upon the 
 hill of sale was not necessary. Wilkiiis, .J.. 
 i/issiiih'iii/. 
 
 Ill III, on demurer to the defendant's ])lea, 
 which set out the attachmi-nt and levy of the 
 goods " as and being the goods of the L. Coal 
 •Milling Co.," and the sale of the goods, ■•being 
 the |)iopcrty of the L. Coal Mining Co.." that 
 the jilea was liad, as it did not allege that the 
 goods were not the gooils of the jilaintitf. 
 
 W'ilkins, .(., ili'y.^i n/ini/. 
 
 Ilrailli;/ v. Mi-L.an. ■_' R. il' C., .■■.S4. 
 
 Picverscd r)ii apjieal to the .Sujireine C.uirt of 
 Canada. (.Sec Iii/rit. ) 
 
 One IT. institute<l jiroceeilings against tlie L. 
 V. M. (~'o., the ollicei's of which resiilecl in the 
 I'uited .States, but wliicii did business in Xova 
 Scotia, and, on the l?."itli May. Is7-, caused a 
 writ of attachment to lie issued out of the 
 .Supreme Court at Amherst, umler the Absent 
 and Absconding Debtors" Act of Xova Scotia. 
 directed to the aiipell.uit. tlie Ifigli Shcrili' of 
 tile County ')f Cuiiibei-land. I'leler this writ, 
 the appellant seized certain chattels, as being 
 tin,' chattels of the said ('oin|)any. On the i'JtIi 
 N'ovember. ]S7l!, an order was issued out of the 
 said Court, directing the apjx 
 
 ipiieliant to sell, and 
 a])pellant ilid sell said ehaltels as being of a 
 jierisliable nature. On the 1 1th December, 1S74, 
 a discontinuance was tiled in the said cause by 
 H. On the .'iOth May, lS7i>, the resix.ndeiit 
 commenced an action against the apjiellant for 
 the conversion of the chattels in (piesti<in, con- 
 tending that the Company, having failed in its 
 operations, and being desirous of winding u)) 
 its atl'airs, and being iiidetited to him, had sold 
 and conveyed to him the said chattels liy a cer- 
 tain niemorandum of sale, dated .Inly ."itli, l.St>7. 
 "signed on behalf of the Conipai;y," by one 
 " Hawley, agent." 'i'o this memorandum a seal 
 was attixed which diil not purport to be the seal 
 Conversion by ' of the Company. The appellant pleaded to the 
 
 Sheriff—Sale under order of Court— 4th Rev, , declaration that lie did not convert ; goods not 
 
ACCIDEM >v, NK(;|,I(;KNTE. 
 
 19 ACCOUNT. 2a 
 
 plaint ill's; not p.sscsso.l : ami also a special ACCEPTANCE— V" BILLS OF KXCHAXCE 
 
 ])W of jiistitication, si'tting foith the proceed- | AN'l) I'itOMISSORY NOTES. 
 ings hy H., an<l that he ha<l sei/eil and sold the j 
 
 gooits as the goods of the Company, in ohudienee 
 
 to the attachment, and order issui'd iii said 
 
 pio.ee.lings. The tvspondent replied, setting ACCESSOKY -S., CrUMIXAL LAW. 
 
 lip tlie discontimiance. Tiie ajjpellant rejoined 
 
 that the proceedings were not iliseciitinned. and 
 
 that the iliscontinuance was not tiled till after 
 
 the s.ile. Ife also dennn-red, on the ground that. 
 
 heing liound to oliey the order of tlie t'ourt, 
 
 he could not he afi'ected liy the discontinuance. 
 
 At the trial, a verdict of .■*.")()(» damages vas 
 
 ren.lered for respondent. The appellant ohtained ^^,^^,j,j ^^.,j j. ^tISFACTIOX. 
 
 a rule iiii} to set aside verdict, ami the rule am: 
 
 ilemurrei- were argued together. The Court M'llilt IiniOlintS (0 - IMaintill' lirought action- 
 
 liclow refused to .set aside the verdict, am' g.ive foi' .>-'S4. .'!."{ for work done, itc., foi' defendant, to 
 
 judgment for plaintitt'. on the demurrer. On wliich dcfcmlant iilcailcd ])aym»'nt after action 
 
 ap])eal to the .Supreme Court of Canaila. hrought. It ai)f)eiircd in jironf that wiiile jiliin- 
 
 //'W, tliat the appeal should he allowed ; that titV was in ])rison on a charge, the n.ituie of 
 
 the plea of ju.'^tilicatiou slioweil a sullieient which was not disclosed, defendant ohtaiiied 
 
 answer to the declaration; that the replication from him a written a'knowledgment as follows ; 
 
 was had. and that the verdict must he set asiile "This day I have settled all matters of account 
 
 anil judgment he for the defendant on the de- and the suits hrought .igainst me hy .lohii MeCahe 
 
 murrer. for .•*S4..S.S." (.Sgd.i •• !•". H. McNutt." The 
 
 /*' /• Ritchie. .!., (//.-vi )(////(/, on the ground that signing; of thi« w.is followed liy t'ae payment of 
 the seizing umler the attachment, and not the ; tifty cents hy defeud.iiit to ])laintiH'. which the 
 
 sale, constituted the conversion ; that there was County Court judge held to lie sntlicieiit under 
 
 suttieient eviilenee to show tliat the I'hattels in the plea. Yet hi' give t]w. ))laiiitit}" judgment 
 
 (luestion had heen transferred hy the Com])any for ten cents to eiiahle him to tax summary 
 
 to resj)oiident. and that under sec. I.'i. cap. .">.') costs. The Court set the judgment aside and 
 
 of 4th Rev. .Stats., the sale of the chatteW ilid remitted tlu' ca-^e to the County Court, 
 
 not reipiire to lie \inder the eurporate seal of the /''*• Ritidiie. K. ^. 
 
 Company. T do not think the defendant can possihly 
 
 /'< r Strong. J. — The sale, and not the seizure, succeed under a jilea of payment. It is only a 
 
 was the conversion complained of. and to this payment of a j)art and seems to lie rather a case 
 
 the order of the Court was a sulKcient answer, of accord and satisfaction. 
 
 Sfiith/,, a mere taking of the goods of a third MrXiiit v. Mvdth^, 2 \\. k (i., .'{7'2. 
 person under mf■■>ll^ attachment against a defeii- , 
 
 dant to keep them /(( mul'to until the termiua- ' 
 
 tion of the action, is not a eonversiou. 
 
 Pir Henry, J.— The order for the sale would ACCOl'XT. 
 
 not have lieen a justitication for the original lew 
 
 on the goods, as' well as for the sale, if thev had <• ■*<•<'«" ^^^ '^ ^'^''^''^ "''" '""" '""' '^'^^'''■ 
 
 heen the property of the respondent, hut the f''""'- »"'"*>■ ^''■"■'" '" «'"' "'^""^' "^ ''"• '^ • 
 
 evidence failed to 'show a sale hy the Company f"'-""'''!'' " pl^intilV. twenty in the name of II. 
 
 to the respondent. Such a sale' would reip.ir'e '^'- (''■"■"•'^'l. '^ 'l^'fendant, twelve in the joint 
 
 .1 1 .1 . \ c ^\ I ■ names of K. Hivelow. .Sons & ( o., plaintiHs. 
 
 to he under the corporate seal of the (, oinpany, ■ i.. . .», , i 
 
 and did not come within the meaning of .see. i:,, ''''"^' ""t"*" ""'-''^ purch.ased hy E. Higeh.w, .Sons 
 
 cap. .-iH of 4th Rev. Stats. , * <^"- "'"^ '•'• ^'' * "• "^'^ <'i"'">'i>'- ^"'>.|.osing 
 
 ' ii_^ i! r r- 1.11 tj 1... „., .11 1 
 
 M,-h(tt, V. lirriillni. •! S. C. R.. WX^. 
 
 the Hrin of Crandall Hros. , under an alleged 
 agreement that they should he paid for out of 
 the first earnings, hefore any division was made 
 
 among the owneis. The shares of Crandall Rros. 
 
 were afterwards transferred to .1. E. & E. Rand, 
 
 who claimed a right to divide tlie earnings tiefore 
 
 FOR CASES OF AKKEST rXDEU CAPIAS, paying for the onttits. The evidence was cm- 
 
 OKOER FOR ARREST OR E.YECl- tradictory, hoth as to the original agreement 
 
 TIOX — *<'" ARREST. and as to the knowledge of it on the part of 
 
21 
 
 ACCOUNT STATED. 
 
 •)•> 
 
 tlu' R:iii(ls, lint the t'fuirt drew frniii tlit; uvi- 
 lU'iifu the inference that thei'e wiis sueh an agree- 
 ment. lUiil that tlie Hiincls were aware fpf it, ancl 
 (Irrrceil an aeeouiitinj.' as ))rayeil for. 
 
 /liir /""•<' (('■ V. /.'(iiiil 'I '('.. ]',. K. !»,. 4'.)."). 
 
 2. i'iaiiititr was jdiiit o« ner with ih'femlunts 
 (if a vessel engaged in tisliing xnyage.s, jilaintill' 
 lieing master of the vessel. In his writ plaint itl' 
 ilaimed an amiamt due. Imt the master rejinrted 
 an amnunt due liy idailitill' to tiie ilefeiidants 
 arising nut fif nutt^.s uf hand given Ky plaint ill' 
 and defeinlants jointly fur the purchase of the 
 vessel, which notes defendants had retired, and 
 an order received hy plaintiff for money in 
 whic'li all thr jiarties were interested. 
 
 //•/(/. that the amounts were i>roiifily 
 allowed. 
 
 .\ claim for w.iges made liy plaintilf was dis 
 allowed under the evidence. 
 
 »(;/»'/. /-.v V. lli,lil^iroiih <l ((/., H. K. I)., 411. 
 
 3. .ictlon for .\f roiiiit Order to riirthrr 
 
 answer interrogatories - Facts material to 
 Plaintifl's' case — Discretion of Judge- In an 
 action for an account in relation to paitnershij) 
 dealings lietween Jilaintilfs and ilefeiidant, res- 
 pecting the purchase and sale of a mine, and 
 for payment of jilaintili's' share which was 
 alleged to have lieen iinproj)erly received ;ind re- 
 tained liy defiMidant. plaintill's after the com- 
 meiiiemcnt of the action, ulitained an order 
 rei|uiring defendant to answer certain interroga- 
 tories. After receiving defendant's answer, a 
 further finler was ohtained from a Judge at 
 ('liaml>ers, rerpiiring defendant to attend liefure 
 a Master for further examination a.s to matter 
 eontained in certain of the interrogatories. 
 
 l>efendant aj)pealed, on the ground that he 
 was not fililiged t'l answer until ])laintitl's had 
 first estalilislied their interest. 
 
 It appearing that the facts sought to he elicit- 
 ed liy the ilitelTOgiitories, were essential to the 
 plaintiff ea-'ie. 
 
 Held, that fhere was no ground for interfering 
 with the discretion of the .Judge lielow, ami 
 that the defendant must answer as ret|nired. 
 
 Ji iikiiix 1 1 ttl. V. '/'iip/iiy, 7 R. .^ <>., .">fHi ; 
 
 8(". L. T., (i'J. 
 
 4. Acdon for not accounting - Piaintiii' 
 
 liireil defeiiclant to travel and sell certain goods 
 for him for cash or ap|)i'oved notes, to return 
 
 such goods as were not disposed of, and at unt 
 
 for tlie proeeciLs of those .sold. Defendant 
 having failed to acconnt, this action was brought, 
 the declaration containing a count in trover and 
 a count for money had and received. Defen- 
 dant having been shown plaintiff's account for 
 
 the goods, by his attorney, admitted it to be in 
 the niiiin correct, and offered to pay .^lOO (being 
 less than the plaintiff claimed ). which was re- 
 fused ; and on plaintiff's att<irnev asking tlefen- 
 dant if he would neither acconnt for the goods, 
 nor give them up nor pay for them, ilefeiidant 
 said he vvould do neither, //i/il. that this an- 
 swer was no evidence of a wrongful conversion, 
 thiie being no evidence that the defendant, 
 when he made it, had any of the goods in his 
 jiossession, as he had previously stated to plain- 
 tiff's attorney that he had sold them all. 
 
 '{'he plaintif!' stateil in his evidence that defen- 
 dant had ]iidniised to come to his place and 
 settle, and that he (plaint iff I. undeistood from 
 the defendant on that occ^tsioi; that all the goods 
 were sold, excejit a few bridles. This evidence 
 was not contradicteil by the defendant. J/i/d, 
 that it was not snflicient to warrant the conclu- 
 sion that the goods were sold for cash, as the 
 defi'iidant was authorized to sell either for cash 
 or aiijiroved notes. 
 
 Si }iih/i , that under the evidence, the plaintiff 
 could have recovered on a count for not ac- 
 counting. 
 
 HV(//.v /• V. ('itiiiiiiKjlKiin. .S K. it ('., 1. 
 
 5. Report of .Master -Sustaining Objec- 
 tions to — When — Where in a ipiestion of ac- 
 counts and disbursenieiits a thoroiiglily compe- 
 tent person has been selected as referee with the 
 approval of both parties, and he reports thereon 
 after a full examination, those who would take 
 objections to such a report are bound to prove 
 their objections by clear and satisfactorj' evi- 
 dence, for it will not be overruled unless there 
 be an overpowering case made against it which 
 shall satisfy the mind of the Court that it ought 
 not to be maintained. 
 
 Tl,' .In mi." Frn*i\ V. A. D., ir.O. 
 
 ACrOlNT STATE I». 
 
 1. Necessary to show mutual understand- 
 ing — riaintitf sued the defeinlants !•'. ifc L. for 
 wages due him for work done as a diver in 
 saving goods from a wrecked steamer at the 
 Island of .\nticosti, and also for two four- 
 teenths of the jiroceeds of the goods saved, under 
 an agreement to that effect. The defendant L. 
 suffered judgment to jtass against him by de- 
 I fault. 'I"he defeiK'ant V. contesti'd the claim as 
 j to the share of the pro-'ci'ds claimed. In the 
 I County Court judgment was given in plaintiff's 
 I favfir, ba,sed on what purported to be an adjust- 
 I inent fif the salvage account between I'", and L. 
 I in a previous suit brought to secure a settlement 
 
23 
 
 ACTION. 
 
 24 
 
 of llniir iicoduiits. 'rUcrc was im iviilfiice us to 
 will) inado tliu piijM r. nr tliiit tlii^ (Icfttiidaiit K. 
 kni'W its L'oiitoiits, iunl il appi'iiiccl fiiitlier tliiit 
 it had 1)0011 liuiidfd to j)laiiitiH"s solicitor, who 
 was iiotiiii,' at the tiino as tho solicitor f)f the 
 dt^fciidaiit N. in loniicctioii with tlu' pii-vious 
 suit without iircjinlirf, and on thi' lUidiTstaiid- 
 inii that it wis not to lie made ii-^i' of in any 
 other suit. 
 
 //./'/.on appeal that thci'o was no fviiiciicc to 
 support the jndgiiu'nt ap|)('al('d front. 
 
 'i'o snpjioit an aiconnl stated it is neeessai'y 
 to show a nnitnal nndeTstandiiit: hetWfin llio 
 plaintitrand ilefendant as to a l>alaiice .-ti'iuk or 
 
 sum admitted. 
 
 \nrilir v. I'liroiihar it (it., 
 
 •20 \. S. D., (S I!. S {'..). VA; 
 
 <»('. L. T., •_>:«. 
 
 2. Mdiiorundum - Consideration Prom- 
 ise to pay the debt of another — I'laiiitifl'had a 
 oliiim ai;ainst defenilant and also a elaiin a;_'aiiist 
 defendant's lifotlier. Defendant haviiii; as^i'eed 
 to a.ssiinie lioth delits si^'ni'd a tnemorandiim as 
 follows : -" ISSl. Oet. '.M , to lial. per .settloiiiolit 
 at this date, .SSK.dO. 1 aeknowledL'o the ahove 
 anionnt to he eorreet ami jjiomise to juiy it 
 fortliwith." 
 
 l/t/il. not an account stated. .!/«/, that to 
 onahle j)laintitr to leeover as on an original 
 contract a (■onsiileratioii for assuming the 
 brother's ilel)t should have been shown. 
 
 Frns,r v. Mrl,.,„l, tl R. & (!., -.Nti ; 
 ('. L. T., 4.V.>. 
 
 3. Mere striliins bulanre does not con- 
 stitute an account stated — Defendant inaile a 
 note of li.iud to S,, wiiicli was incloised to piain- 
 titr. who received payments on account of it from 
 time to tine' from the inch.rser. I )efendant made 
 no payinoiit.s, liut, after si.K years from the date 
 of the note, mailo a new note to plaiiititl' for the 
 balance due on the original note, the stainj) on 
 whicli, bearing dati' identical with the date of 
 tile note, was for the single duty, and was alKx- 
 oil by plaintill' on the clay subse([iient to the 
 delivery of the note to him. 
 
 ITild, that tho stamping was insudicient, and 
 that the note oould not bo received on the trial 
 as an acknowle'lgnient to take the case out of 
 the statute of limitations, that the payments by 
 tho indorser did not inure to prevent tho opera- 
 tion of the statute as against tho maker, ttiidlhnt 
 t/ii niirf ttrrkhiii of n Jid/aiiff a^ lutinrii thi jmr- 
 fifs (lid not roii-ililuli- an iifcoiiiit sidtiil to take the 
 fnsi out of Ihi slut lite. 
 
 AfrFcilri,/;/,: v. /[iiiifir, 3 R. ci C, L'89. 
 
 .U( IlKTION - 
 
 .SVc; HIVHK.S-TRK.si'ASS. 
 
 ACKNOWLEDCaiENT - 
 
 (1.) OF DKins OK DEMANDS TO T.AR 
 HTATU'i'K. 
 
 (•_'.) OF ■JITLF TO LAND. 
 
 !<<•,' LIMITATION'S OF ACTION'S AND 
 SUITS. 
 
 .ICQIIESCENCE- 
 
 S(r FSTOI'l'EL. 
 
 .tCTS OF P.tRIilAMENT- 
 TIIEIi: (ONSTRUCTIOy AND OPERATIOX 
 
 See STATUTES. 
 
 AiTioy. 
 
 1. liy whom maintainable— Plaint ill and 
 
 defeiiclaiits were. Icy coniinission from the f.iou- 
 teiiaut ( iovernor, appoiiitecl ( 'cunmissioners of 
 sewers for the towiisiii]) of Falmouth. I'laiii- 
 tiff having been selected by projiriotors, repre- 
 senting two-thirds in interest, Comniissioiior of 
 the Village Dyke. 
 
 //</(/, tiiat tho plaintitr alone could luaintaiii 
 
 an action against defendants, although at tho 
 
 I time of his selection, and when the work was 
 
 done, dofendant.s wore naiiiod with him in the 
 
 E.xocutive Commission. 
 
 Darldsoii v. Lairri'iicr it a/., 1 N. S. I)., .S'J. 
 
 2. Halifax, City of-Actlon against -No- 
 tice of —Notice of action against city, given iiy 
 plaintitf'a attorney, liold sutiioient and uiiob- 
 joctionablo, although in the alternative as to 
 amends being paid. 
 Wo/ktr v. Tin City of Hal I fax, 4 R. c!k (i., .'HI. 
 
 Atfirnieil on appeal to the Supreme Court of 
 Canada. 
 
 Cas. Digest, 98 
 
ADMIRALTY. 
 
 20 
 
 ;{. Notice of Action— WliLTu plaintill' in an 
 action ag.iinst tlie t'ity of Halifax, for coiniiun- 
 sation for injuries ruteivuil through negligcnco 
 (if tlie city's contraclms, failed to give any 
 jii'iicf of notice of action heyoml a minute of 
 the City t'ouncil, stating that a letter from 
 pliiintiirs solicitrir claiming (lamagc-, had heen 
 read hefore the Council, and a notice to defend- 
 ants to produce the letter not c<)nij)lied with. 
 
 Hdil, that the plaintifl' coidd not succeed for 
 want of .sulKcieiit notice of action under .Section 
 'J7() of the City Charter. 
 
 Uuhiii.ion V. Tin Citij of I/iilijax, 
 2 K. & C., .•{7"). ! 
 
 4. Judgment — Action on Husband of 
 
 wife against whom judgment before her mar- 
 riage — Like other defendants cannot plead 
 matter of defence to original action — 'I'o an i 
 artioii on a judgment the defendant cannot plead 
 any fact which might have heen pleaded as an an- ; 
 swer to tiie original action. Where a party has 
 ohtaincd a judgment agaiust another, he may ] 
 proceed upon it at common law, and is not com- 
 pelled to proceed by wiit of revivor. The 
 husband of one of several parties against whom 
 a judgment has been formerly obtained, stands 
 in no better position than the other defendants, 
 and cannot plead matter of defence to the judg- 
 ment that was available in the original action. 
 Beiijamiii v. Camj)l>i/l tt at, '1 N. S. D., 3'20. 
 
 5. Use and occupation —Action for does 
 not lie against party who goes into possession 
 under contract which fails — Where a vendor 
 lets a vendee into possession of lands on a eon- 
 tract which afterwards goes off, he cannot re- 
 c(jver for use and occujjation. 
 
 Temple et cd. v. McDonald, '2 Old., 155. 
 
 6. Effect on bail in action of reference by 
 
 consent — When a cause, by consent of both 
 Jjiutics is refcrre<l to arbitration. 
 
 JLIil, that the bail, in the original action, is 
 discharged. 
 
 Allison V. Deshrixay, Cochran, 19. 
 
 1, Plaintiff may become non-suit at any time 
 before verdict. 
 
 Grant V. Prohr/ioii lii.t, Co., 
 
 1 Thorn., (1st Kd.), 10 ; 
 
 ('2nd Kd.), !•_». 
 
 8. Si mill, that an action will lie agaiust a 
 ISIieriir for taking insulhcient bail. 
 
 Jackson v. Camphdl, 
 1 Thorn., ('ind Kd.), 18. 
 
 ADJISTME.M- 
 
 .V,. IX.SURANCK. 
 
 ADMIMSTBATIOX- 
 
 ,SVr KXKCUTOR.S AND ADMINIfSTRATOR.S. 
 
 ADMIMSTKATOK 
 
 See EXECUTORS AND ADMINISTRATORS. 
 
 ADMIKALTY. 
 
 1. Contempt— Commitment for contempt 
 
 — Petition for discharge in UKJst humble terms, 
 and discharge. 
 
 Enoch Stanicood's Case, 
 Stewart, PJ3. 
 
 2. Prize Court -Instance Court— Yicc-Ad- 
 
 miralty Court —Respective jurisdictions — As 
 a Prize Court, no Court of Aihniralty has juris- 
 diction in revenue cases. As an Instance Court, 
 which is the proper tribunal for cause of tluit 
 nature, a Court of Vice-Admiralty has no 
 authority to take cognizance of otlences com- 
 mitted not within the limits of its local juris- 
 diction. (The jurisdiction of the Instance 
 Court has since been extended by Act of Parlia- 
 ment. ) 
 
 The Xuesira Senora Del Carmen, 
 Stewart, 8.S. 
 
 8. Adnilralt}' — Vice — Jurisdiction of — 
 
 Special contract — For seaman's wages, what 
 constitutes ; cannot be enforced in Vice-Admi- 
 ralty Court- 
 Two out of three proinovents shipped at Ber- 
 muda on board the ship libelled, a bhjckade 
 runner, for the round voyage from Hermuda to 
 Wilmington, North Carolina, and thence to 
 Halifax, Nova Scotia. The remaining prouio- 
 vent shipped at Wilmington in room of one of 
 the others. No ship's articles were signed, but 
 there was evidence to prove that the master had 
 contracted to pay to eaeli of the promovents cer- 
 tain specified sums, in three eijual instalments. 
 The contract was absolute as to two of the 
 instalments, and as to the third, thei-e wa.s a 
 c(mdition that it was to be paid only if the 
 claimants' conduct were satisfactory. 
 
27 
 
 ADMISSIONS. 
 
 28 
 
 llil(i, (I.) 'I'liivt this WHS nut Mil iiiiliiiiiry ell- ISl'J, imt aiitlnnizcil liy that ii|ip(iiiituu.nt tn 
 
 gaguliii'iit for si-aniuns wages, hut a spueial ciiii- iccrivo llioso droits, nor to receive prizes whiiii 
 
 tract. liail Ipceii eoiKh'liilieil to tlie captors. 
 
 ('!.) Tliat previous to tlie .\ihuiraity Court .n'//o«/'.< /'i/(Vio//i, .Stewart, 4'J7. 
 Act of lS(il. -Jl Vict. ch. lit, tiu; High Courl of 
 
 A(hniralty iiad no jurisiliction over sucii con- 8t DroltSOf -l)islinct from the King's riglits 
 
 tracts. -Jill'' I'Di-i'ii'i . 'i'hi Ltiili Jim, .'ml caxi, 
 
 (;}.) Tiiat tiiis .Act ilid not extend ti> the Viou- ; .Stewart, '.i'M. 
 Admiralty Courts, noi- weri' the provision.* re- 
 specting si)ecial contracts, eUihraccd in its tenth J(. Who entitled to rei:eive them, the Cover- 
 section, extended to those Courts l)y the Act of nor of a Province, as a N'ice-.Adndral, oi- the 
 18(i,S, '2(i N'ict. <h. '24, sec. 1(J. Receiver-Ceneral of ilroits. l)ecisiou in favi.r 
 
 (4.) That, although the connnission formerly of the laltcr. /hiil. 
 issiuid to the X'ice-Ailmiiiilty .ludge empoweied 
 
 him "to hear an.l deteiniine all causes auconling: 10. Admiral Lord High I'alt'llt lO thC 
 
 to the civil and inaiiti:ne laws and ■ustonis of oui- Commissioners for executing the ortice of Lord 
 
 High Court of .Vdmiralty of Kngland." yit this High Admiral. 
 
 power, liki' some others assnnieil to he liestoWed i 
 
 Kxtraot from Tatt'iit of 
 
 .Stewart. 4'_'.") 
 
 hy the commission, is freiiuently ino|)erative, 
 and that, therefore, this Court has no jurisiliction 
 in ciLsos like the present. 
 
 I/p/d, a/no, that, although the respondi^nts 
 were hound 'o have olijected to the jurisdiction 
 ill limiiK , liy ap])earing under protest, still, that, 
 where the Court is of opinion that it has no 
 jurisdiction, it will not only entiitain tlu' 
 ohjection at the hearing. Imt is hound itself to 
 
 raise it. Kxtract from— 
 
 Tlh Clli/ "/ l''ln:^lnir<j. 1 Old.. .sU; 
 V. A. ])., 1. 
 
 InstriKiioiis to lteeeiver-(ioiii>ral 
 
 4. Admiralty Kiile as to Ket'ovcry in It ' 
 
 is the rule of the Ailmiralty. as it is of dl other 
 
 Courts, that a i)artv can onlv recover .VI .((/((/((//I , . .,,,.,,,. 
 
 , • - 1 1,,' legislation ol the Donnnion r.ulianient i.)l 
 
 'Che Alma, 1 ( )1,1. . 7,S'.». ^ "-•• ''■ ^- ''■ '■'''>- «'^''»« ^he \ lee- Admiralty 
 Court jurisdiction in cases for the collection of 
 
 5. Judge, rigllf of to instruct partie.S It l"^^"''lti''« f'"' iH^'g^'l .listiUing, is ultra rins, an.l 
 
 is competent for a .ludge of a Court of Admiraltv ' "'" Vice- Admiralty Court, as an inferior Court, 
 toimlicate, ...-;/AV/„, to the iiarties, any views I "'■i.v he restraine.lhy the .Supreme Cmrt hy writ 
 which may .-eem to have an important hearing "' prolulntioii. 
 on their rights. 
 
 'I'll' l,)ntiii v. '/'/(( Chi''r(jt' ukr it" Canjo, 
 
 I Uul., (.)(. j Oiiujijiful to t/ii Siijinm, Court of Canada, 
 „ „ . _. , ... , I //./'/, that so much of sec. l.'.d of ;{1 Vic. c. S, 
 
 6. Property recaptured from Pirates— ,,. i i i i. \ ^ ivi-, ;. 
 
 ,,'.,,. . , I Dominion Inland Mcveiiiie .Act, IM), as gives 
 
 Their Power and History - 
 
 Tin l.ilt/i Jof , :,itl Cus, , 
 .Stewart, 3!t4. 
 
 Admiralty Drolls tommlssion of Kecelver- 
 
 General of — 
 
 rroni— 
 
 .Stewart, 4'J."). 
 /'/.. 4'J(). 
 
 II. Vice-Admiralty Court -Prohibition to 
 
 Attij.-di 111 of ('aiiaila v. /■'///// ./ «/. , 
 
 .■J R. iS: (i., 4.".;i. 
 
 Disposal of— It is the ordinary practice of the 
 
 the Court of \'ice- Admiralty jurisdiction in case? 
 
 ( oiirt of .Vdiiiiraltv to ilirect proiiertv retaken ' . , ,, . .. , ■ <• -n i i- ■ 
 
 , • , , . , , tor the collection ot penalties tor illegal dlstl.. 
 
 from pirates to he i-eturned to the owners witiiout ' . . . .,,, . , e ,' ■ 
 
 , , , , , . liig IS //(^ri /•((•'.I. 1 he ndgmeiit ot the .Suiirciue 
 
 delay, and, except where there is a stroiu' ne- , , , .. , . , 
 
 '^ . , ..,..(. ourt of Nova .Scotia reversed. 
 
 cessity rei|uiring it, without rei|uiriiig hail foi 
 latent claims, t.iking care to protect the rights 
 of Kulror.i, and the droits of Admiraltj'. 
 
 I. Droits of the Crown— .Fure corona) - 
 
 Taken before the order for reprisals, 13th Oct. 
 1812 — Agents who were appointed lo receive 
 ships detaineil under the orders of the '2,'ird .June, 
 
 Attij.-tleu'l of Canada v. f'liiit (t al., 
 
 Kith January, 1,SS4, Cas. l)i)^•st, .•{•24 ; 
 
 4C. L. T., lUi. 
 
 A»MISSIO>S- 
 
 Ste KVIDKN'CK. 
 
29 
 
 AFFIDAVIT. 
 
 30 
 
 AIIVAXEMKNT - 
 
 I'HKsrMT'riOX OF lO CHILDRKX. 
 s,, WILL. 
 
 ADVERSE POSSESSION - 
 
 S., Ivll 
 ACTK 
 
 •'.('IMKNI- LIMITATIONS OF 
 )NS AM) SLTI'S. I'HKSI'ASS. 
 
 ADVEKSE WITXESS- 
 
 S,, FVIDKNTK. 
 
 AFFIDAVIT. 
 1. Aflldavils read and tiled \i)t referred 
 
 to in nilf iii'^i Rule allowed to be amendeil 
 Wlii'i'c atliiliivits were i-eud ainl tileil at the lime 
 a rule iii"! was moved for, tiioiijjli the \n\r did 
 not n'f«'i' to tliem, the Court, no smprise liciiig 
 alle<;ed hy the othei- side, allowed tlie ride to lie 
 aiiiemled at thi' aru'ument hy ret'ereiiee to the 
 attiilavits. Wdkius. .1.. «//.>..•(/('///;/. 
 
 /■y/inlf ,/ (t/. V. Udhl. -JOi.].. 170. 
 
 '2. Aflidavits anNwering new matter 
 
 Leave touseretused— 4tU R. S., c. 96. s. lo -cf. 
 5th R. S., c. 104. O. xxxvi. R. 18 -The ( nurt lia> 
 rarely permitted allidavits id he pi-mluefd under 
 sec'. I.') of the Kviileme Art. 4tli H. S.. i\ lit), and 
 in the few cases in whieii lliey ha\ e done >o. s-ueh 
 course iuis l)een 'cndered neees.sary to j levent 
 tlie lirossest injustiee or to vindicate the -tand- 
 in); .-it niemliers of the liar. 
 
 On argument of a rule to set aside a jndj.'ment 
 obtained against clcfendaiil an the ground, among 
 olliers, that the judgment had lii.'en entered in 
 fraud of defendant and against good faith, tiie 
 Court refused to allow defendant to produce 
 ntlidiivits in support of his rule when the aliida- 
 vits of plaintill' contained no new matter except 
 in refercMci; to the title of the defendant to the 
 laml on wliicii the juilguieiit loi'nu^d a lieu. 
 Tiierc Was a variance lietwecn plaintili".s ami 
 difciulaiit's statements as to tiie consjdeiation 
 for wiiich tile confession was given, piaintitl' 
 having deiiosed that it was for the indebtedness 
 to him of defendant's lirotiieis. who lia<l become 
 insolvent, and tliat he iiad agreed to credit them 
 witli further sup])lies of goods upon being .sntli- 
 
 ciently secure<l. Defi'tidant deposed tiiat the 
 security was given wiudly for future advame.s 
 of goods and oliiigatjons to be incurred by plain- 
 tilVon account of the insolvents, ami that plain- 
 till' had wiiolly refused to carry our his j)art of 
 the contract. I'laintitt'. when I'onfronted with 
 the faet.s us deposed to by ilefemlaiit, admitted 
 I that clefeiiihuit's statements were true, but con- 
 jteildeil that t he judgliiillt was not siillicient for 
 I the ])urpose for which it had lieeli given, and 
 ' said that lie held it as a security for the [last in- 
 debtedness of the insolvents, for which hu had 
 accepted a compromise. The judgment was .set 
 aside. 
 
 oMii/i;,, v. Mr Dm,. ,1,1, ;{ H. .V C, u'ttl. 
 
 3. Attachment -Aflidavit.s on uppliralion 
 
 to set aside- Coullicting statements in allidaviis 
 are not regarcled in aiijdicatioii to set aside at- 
 tachment iigainst aliseiit debtors. That is a 
 matter ff)i- siibsennent iii(|iiirv. 
 
 huilhu ,1 nl. V. ./../,..«, 1 R. \- ('., -MS. 
 
 4. Attachment under Insolvent Act, 1H«.) 
 
 — Affidavit for — Requisite.s - I'laintitl "s atli- 
 davit lor the issue of a writ of attachment iiiuler 
 the Insolvent Act of \S~7i. followed the recpiire- 
 nicnts of the .Statute, .-eciion It, setting out us 
 g.'ounds for the belief that defendant was in.sol- 
 vent. the fact that he hiol called a meeting to 
 coiii])ounil with his creditors, hiid exhibited a 
 statement showing his inability to meet his 
 liabilities, and hail otlier\visc acknowledged his 
 insolv uey, (sec. .'i. u. ) 
 
 ll'l'l. reversing the ilecision of dolinstone, .)., 
 that till' atlidavit was sullirifnt. 
 
 Fuskr V. liuonu, W K. .t C., ;}44. 
 
 .1. Capias issued without aflidavit -Capias 
 
 issued by magistrates sit aside on the ground 
 that it was issue<l, and the defendant arre.sted 
 c'lder it. without an altidavit of the grouiuls 
 of plaintill's belief, as reijiiired by chapter '21, 
 of Alts of IS7!». .sec. .S. 
 
 McL'dii V. M.-Kny. 1 H. A; O., .'IS.S. 
 
 6. Comnilssioner appointed by the Insol- 
 vent Court- -Who considered such — A writ of 
 attaihnieiit under the Insolvent Act of 1,S(>!», 
 (c. liil having been issued at the instance of 
 plaiutitr against defciulant, the latter, three ilays 
 before the leturn day of the writ, procured a 
 rule iii.ti to set the attachment, the writ ami 
 other l)roceedings thereon aside. The rule was 
 taken, among other things, on reailing tht^ atli- 
 davit of defemlant sworn before William Aikins, 
 designated as a commissioner for taking atlidavits 
 
;i 
 
 AFFrDAVIT. 
 
 S2 
 
 to lie ii-c'il III till' Siiprciiu' ('(111 It, Ci unity nf ('i>l 
 (.lu'-tiT, mill tliu ulliiliivit (if .l(isc|)li Niiriii.iii 
 Kilcliiu, sworn lit H;ilitiix, liofoif ('. M. Nuttiu^'. 
 (It'sigliiitfil ii> a idiiiiiii.s.siouer of Siipifiiii' ('(nirt, 
 ('(iiiiity (if Halifax. 'I'lir rule liaviiij; Imcii iiiiidc 
 iilisoliitf. .-iltili;; the attachiiiLlit asiilf, plaiiitill 
 11]i|I(-m1i'i1 (HI the (.'loillld iiliMillg otluM-.s, tliat the 
 Jiiilgi' ill liisdlvi'iicy iiail no jiiiisdictidii t(i make 
 till' iiidei-, that tlu' iillidavit.s welu iiii(iid|)t'rly 
 sworn, liuiiig iiM|iiirc'd liy tin- Act to lie sworn 
 liy oIlic'ciN appoinlfd l>y tlie uotiil, and tlial di-- 
 fendiint's jii-tilioii to st^t as^idi! the writ was 
 inciiiitiiii', in lii'inj^ jncsuntud lieforc tliu ri'tuiii 
 day of tile writ. 
 
 ll'I'l. \>\.. That tile .hidge jiossessc'd juris- 
 diction iiiidi.r .suction -(» of tin; Act wiiiili em- 
 jiowi'is him to entertain a petition to set aside 
 tlu' writ under the provisionn of section I'tj. 
 
 •_'nd. 'I'liat from tlie mere fact of the coin- 
 niissioiiers acting, there was a prestim|ition in 
 favor of their authority which must stand, until 
 destroyed liy evidence snthcicnt to annihilate it. 
 
 .Srd. 'That it was left l>y liie Act in the dis- 
 cretion of the )iarty petitioning, whether lie 
 Would await the return day or not, the words 
 being "may petition the Judge at any time 
 within three days from the return day of the 
 writ, liut not a/ttrirard-i." Doni. Acts, IStiO, 
 c. 1(5, 8. 26. 
 
 (Juatn, whether the writ could be set aside 
 until actually returned. 
 
 The Act providing that the petition is to be 
 heard and determined in a suiiiiiiary manner, 
 " it is for the learned Judge to decide -.vhat that 
 summary manner of hearing shall be, and as 
 regards the nature and eti'ect of the evidence 
 liy which his determination is to be governed, 
 provided it be legal and sufficient evidence." 
 
 The learned J udge having proceeded by order 
 viii. 
 
 Uilil, that the course was perfectly unobjec- 
 tionable, whether viewed in regard to the dis- 
 cretion so exercised, or to the nature of the 
 mode of proceeding itself. 
 
 A commissioner who is in practice and law- 
 fully recognized by the Court (as wouhl be 
 Akins or Nutting) as an officer legally exercising 
 a function so iniiiortant, is within the meaning 
 of the words of section I'J.'J, "A Conunissioner 
 appointed by the Court." 
 
 Iaihij v. Foreman, 2 N. S. 1)., 540. 
 
 I. Constructive service — Affidavit for - 
 
 I'laintill'oljtained in the C'ounty Court an order, 
 under 4tii R. S., c. !M, s. 44, for constructive 
 service of a writ of summons on the defendant, 
 who was absent at the time in England. Tlie 
 atlidavit on which the order was taken was siib- 
 
 .•-t.iiitially ill these teliiis : — "That said defend- 
 ant is absent from the Province, and is, as I 
 am informed and believe, in (ireat Hritain, so 
 that pi'isonal .service cannot be ell'ccted Upon 
 him. if at all, witiiout great expense and iiicon- 
 V(.'iiifiice ; tiiat I have a good and available 
 cause of action against defendant ; tiiat H. 1'. is 
 the agent and ]iartiier of tiie dt^fciidant in this 
 i'ldvincc. " 
 
 J/i/il, reversing the decision of the County 
 
 Court, that the aliiilavit was not sufficient, but 
 
 that it slioiild have set out the facts and eii'cum- 
 
 stances necessary to make it "appear to the 
 
 .satisfaction of the Judge," exercising his own 
 
 1 judgment in tiie matter, that the ca^j came 
 
 I within till' terms of the statute providing for 
 
 constructive service. 
 
 /•'«>,'(/• V. Ilooii'i, ;{ H. & C, 344, distinguished. 
 Mrl^./lcui V. littlibnii, .S K. iV ('., ■..■)4. 
 
 8. Description of deponent -deponent, 
 
 who was tiie jilaintitr, described himself as"], 
 A., of .Shelburne, merchant, the defendant in 
 this cause."' 
 
 Ilild, no objection as the latter words may lie 
 rejected as surplusage, 
 
 Allan V. Casinll, 1 Old., 4(15. 
 
 9. Description -Variance In — WTiere one 
 
 of the plaintitfs described himself in the writ 
 as " Chailes A DeWolf," ami in an alHdavit 
 made in the cau.se was intituled, "Charles 
 Aubrey l)e Wolfe." 
 
 Iltlil, that it could not be rejvd. 
 
 I)<\Volf,<>»'- V. XiilttaL, 
 1 N. S. 1)., 179. 
 
 10. Filing affidavits in reply— ^vhere a rule 
 
 »/'>i for a new trial is granted on affidavits, the 
 
 opposite side is not bound to tile his atlidavits 
 
 in reply before producing and reading them on 
 
 the argument. 
 
 Suly V. Purdy, 2 Thom., 414. 
 
 U. Intituling Xamcs of Parties— An aiii 
 
 davit is sufficiently intituled in the cause, al- 
 though the words " plaintifl " and " defendant " 
 are omitted in the heading after the names of 
 the parties. 
 
 Jlarriiv. Fad,)-, 1 N. S. D.,3; 
 2 Old., 371. 
 
 12. Intituling in absent and absconding 
 
 debtor proceeding — Misdescription of depo- 
 nent — It is no objection to an affidavit for an 
 attachment against an absent or absconding 
 debtor that it is headed in the cause, nor that 
 the deponent, who was the plaintifl', described 
 
;{.s 
 
 AFFIDAVIT. 
 
 U 
 
 hiiiisrif lis ■-.!. A., of siu'iiiiiriK'. nii'iviiiuit. tiic I 17. liitKiiliiiK of, ill proccediiiKH f<>r roil- 
 
 ili'ffliilaiit ill this ^•lul^^c•," as the laltci' w cuds I tempt A lillr /(m/ fur allariiiui-rit fur a con. 
 
 ni.iN lie ri'jcili'il as siir|)liisaj.'c. hcnipt of ('nun will In' (liscliar;.'iMl, if litadi'il 
 
 Af/itii V. I'lisirvll, 1 Old., 40,'). ! '• III n . .Vr." \\ Iumc tliert' is im siiill iiialli'r 
 
 cli'|)i'iiiliiiji ill ( 'oiii I. 
 
 \:\. IiilUiiKii;; of, In certiorari Afn-r '" " /' '■'• A'-- , •_> i;. .v c, .-.•mi. 
 
 issm-, hut lu'toro n-turn .\ wril of ,,,•/;.„„,/ , ^^ MoCloll tO ITSCllUl Proof of A|)|»!U'a. 
 
 ,viM- l..rli issurd out ot tlif S„|,r.M,.. Coiirl to ; ^j^„ ^^ j,,^,^,^. ^,,^^ ,,^.^^,^, ^,,,,^,j, ,.^.,,,_,^. ^^^_ ^^^^_ 
 
 ihr Cliicf Ciiiiiiiiissioiicr of .Mines, tin- Coinniis- 
 
 ])licatii)ii is niailc to tlio Coiiit to rcscini! an 
 
 >i,.M.T .l...lin..| rrtnrn.nf,' or ol,,.yii.L' tiie writ tor i ,„.,^.,. „,• ^^ ,,,,|^,^._ ,|,,,,i,,„i„„ ,,,„„,,| ,„. ,„„|,, ,„ 
 ivavoMswIiU'h tlieCoiirt lirMinsullirleiit.an.laj,!,,. _,,,,,^,,, ^^.,,,, ^,,.^,,^,,.,, ,|^,, ,_^.^,,,,.^ ^^,_,| ,,^^, 
 rnl. nis; tor an atta.-liim.nt was tlicnMiiion ,,„,„,, ^^..„ ,,^,,^,^j,,^, j,,,^,,.^.^. j,,,,,,,. ^j^.^^ ^^,,,,^ 
 Kiaatnl. Tills ruK' was o|,,,os,mI on two ^',o„ii,is, ,,,,,,ii,,^ti„ii I,.-.;, |„rn iiiadr. Atlidavit of infor- 
 til.. siTon.! Ikmiik tliat tlir alli.lavits -" wl'i''!' ; ,„„i„„ „,„, |,,,i,.f „„,,.,,„,,„,„,„,■ ,|„. ,|,„L'.. in 
 tlic rule was pant..,lw..r..intituU-.l ,n ,1„. .■ause. jj.,,^^,, ,^^^,^, ^^^^^ ,„|,i,,|,,,i. 
 
 y/./-/, Wllkins, .1., ,/,«.»/,»;,, that allliou-h ; ^^, ^.^, s,„ I Comi,u,„J of Canu.ln (IJmif,,/), 
 
 the writ iii f rllimii'i had not vet heeii reluriied, j - i> «. /• i- 
 
 tile matter was already in the Conrt. and there- | 
 
 fore the allidavits were ii.L'litfiilly intituled. |j>. Oil Appeal froill JllStiCC I'lif allidavit 
 
 In n l'/i/,l, Con/ mid Miiiiiii/ Cn., 2 N. S. |)., .")(!. f,,r appeal from a dustiee of the I'eaee, in eivil 
 
 lases, iiiusl l)u inad(! lii'fort' the Justice wiio 
 
 14. IiilltiiliiiK of. In tcrtlorarl Hcforo trie.l the cause. 
 
 return of writ - Ellect of so intituling, and ('nrnj v. I.i rrnx, 4 II. I'i: (;., ;{I. 
 
 othevacts- After the Court, with full linowledye 
 
 tliut a writ of ny/iorari had not lieen returned. 
 
 r>ut s,< -,th 1!. .S,, e. l(|-_', .sec. :U, wheie it is 
 
 ,. , . , . , , , . ,. provided thai the allidavit for api>cal or for a 
 
 icicived afiidavit.s on the part of the plaiiillll ... , , .'' , . 
 
 , , , , , , , . . writ ot eaiuas may he sworn hetore anv •lust ice 
 
 iiilitulccl 111 the cause, and Ufanted a rule /"</ c , i, 
 
 , 1 1 r 1 11 , ot the I'eaee. 
 
 tliticiiii, ami detendant a])peared l>y counsel, 
 
 and resisted the rule i,),on an allidavit of defen- , >^q Q^^^^^ „f SeSSlOHS -Additional Or SUp- 
 
 diuit also intitule,', in the cause. plemental attidavits An order of sessi.ms for 
 
 »W, that it was too lato to rai.sc the ol.jec ,.,.„^„^..^, „f .^ |,,,„j,^,,. ,,,,„„,,, ,,,„,„ i,„„|,i,.ient 
 tion that the cause was not properly before the j,,.„„„,,^ ,.,^,„,„i |,^ sustained l.y alli.lavits of 
 Court, or that the Court ha.l n.. power to j^^t^ omitted to he verified before the order 
 ailjiidicate thereon. ' imssed 
 
 Jiaiiil v. Flarin, '2 N. S. I)., 80. BnriHihy >t al. v. ilardiiu r ,/ a/., daincs, .'JOfi. 
 
 15. Intituling of, in certiorari— Before and 
 
 after issue — No cf )7/o)Tt)'( shoul.l issue in a civil 
 suit without an allidavit sh.iwing sufficient 
 grounds therefor in the estimation of the Court 
 or Juilge who grants it, and wliieli may be eon- 
 troverte.l on other affidavits ami motion to .set 
 the II rliortiri aside. The alli.lavits for the writ 
 should n.)t be intituled in the cause. The alli- 
 diivit.s after the cause is brought up must be so 
 intituled. 
 
 Crawley v. Anderson, 3 R. & C, .37. 
 
 16. Intituling of, on application for man- 
 damus— The affi.iavit upon which an application 
 for a iiuuidamus was made was headed, " In the 
 matter of an application intended to be made to 
 the Supreme Court for a mandamus," &c. 
 
 Held, mere matter of description, and distin- 
 guishable from the heading of the aflSdavit in re 
 ftter Iio,Hs, 2 R. &C., 596. 
 
 Be Wilson, 6 R. & G., 180. ; 
 6 C. L. T., 447. 
 
 21. Place where sworn -Statement of in 
 
 jurat — In allidavits it is necessary that the 
 place where they are sworn to, but not the 
 county should be stated in the jurat. 
 
 Jiorhvellv. Ross, I N. S. D., 18.3. 
 
 22. Pleas— Affidavit to set aside, as false, 
 
 &e — Contenta — Allegatifnis in defendant's affi- 
 davit that "the pleas are not false, frivolous and 
 i vexatious, and are not pleaded solely or princi- 
 : pally for delay. " 
 
 I Held, of no eflect in opposing motion to set 
 
 aside pleas under 4th Rev. Stats., c. 94, s. 133. 
 
 Qiimrc, whether the contrary allegation in 
 
 plaintiff's affidavit on such motions is necessary. 
 
 Ford v. Broint, 2 R. <!k C, 408. 
 
 23. Pleas— Affidavit to set aside as false, 
 
 &c. — By whom to be made — An affidavit to set 
 aside pleas as false, frivolous, or vexatious must, 
 in general, be made by the plaintiff himself, and 
 must state facts showing that the pleas are so. 
 
85 
 
 ALIEN. 
 
 IM] 
 
 All iifliilavit luiiilc lis iiliiiiitiU's (■ouiiscl, coii- 
 ' 1 
 
 tiiiliilin II lin'if >,'i;uial stiiti'lUL'Iit that the |iUmi» 
 
 are fiilstt, fiivoliiiis (ir vcXiiticuiK, as lit' hiiK \ 
 
 liiMMi infoniicil liy tlu' ])laiiilitl' and verily )(u- 
 
 liivis, tliniij.'li iiiiiiiiilrailiitiMl liy any allidavit 
 
 on till' part of liit' cUfcnilant, is ii<it siilliricnt. 
 
 (;ih.-<oii V. Kill I/, 1 1)1(1., 7'.'4. 
 
 "M. Kradliiff of, at nrsiimonts In reply— 
 
 Alliilavils DM \\ liiili a rii'i' is cilitaiiifd must lie 
 rcail at the ar^riiiinMil ; and allidavils in rejily 
 may liu used in slicwing lause a^'aiiist it. i 
 
 Thoriii- V, Shfiir, 1 Old,, 542. ' 
 
 1. CONS'I'IU'CTIOX OF— .sVf; (ON- 
 •I'M ACT. 
 
 II. CONSIDKHATIOX FOK.-.sv, (ON- 
 TRACT. 
 
 JII. Li:(iALn^' OF. —sVt CONTRACT. 
 
 JV. I'AJiOL K.XI'LANATIOX OF. — .Vcc 
 KVIDKXCK. 
 
 V. KKLATIXC TO SALK OF I'UOP. 
 EKTV.— .SV< SALK. 
 
 VI. Sl'KCHTC I'KHFOHMANCE OF. - 
 .SV. COX'l"RACr-SALE. 
 
 '2.1. Snorii btTore piiblir oflh'lalH abroad 
 
 — Allidavil made in lioston, piiriiipitiiig to lie i 
 
 made licfoiv I'.inghani, "Chief .Ju.stieo (if Su- i VII. TO DKMISK.—.SV* LANDLORD AXD 
 
 peridr Ciiiirt,'' witlicmt s]iucifyinn the Ci art, j 'll'".N.\Xr. 
 Hihl, giHid where the jurat cmI iiiumI the vviirds i 
 
 "the seal of whi.h Cdurt is allixud.'antl the Vin. WITH IX TMK STATUTK OF 
 
 allidavit liore the .seal of the proper Court. FKACD.S. - S<, CO XT K ACT — 
 
 IloUrUou V. Camn-on, •_' R. >^ C., -Jtil. CCAKAXTKH - LANDLORD AXl) 
 
 TEXANT— SALE. 
 
 20. SMorn without the Province Omis- 
 sion ol'seal--^\n allidavit to .^et aside pleas was 
 sworn without the I'rovinee liefore a eoiiiiiiis- 
 sioner a]ipointed to take allidavils for use 
 within the Province, Imt was not autheiitieated 
 by the seal of the coinmissioner. 
 
 //'/(/, that the allidavit could not be read. 
 
 ALIEN. 
 
 1. ( hlldren, tte., of liritlsh subjects born 
 
 in foreign countries not- Failure of inherit- 
 able blood by alienage — Land does not escheat, 
 Liviii it III. V. Jii-Ktiiil, 5 R. & (1., '2{>,3. but goes to next heir -The ciiildreii anil 
 
 giandehihlien of natuial li<irii lirilixh subjects, 
 though born in a foreign country, are not aliens, 
 and are, therefore, eapidile of transmitting ical 
 estate in this Province by descent, and c'dier- 
 wise. 
 
 Where there is a failure of inheritable blood 
 by reason of alienage, the lands do not escheat, 
 but go to the next heir. 
 
 Siil/irv. Jhii/hi-i, 1 Old., 409. 
 
 AFFILIATIOX- 
 
 iS'tK BASTARD. 
 
 AGEM- 
 
 See PRINCIPAL AXD AGENT. 
 
 AGREEMENT. 
 "Agreement" In 2nd Rev. Stats., c. 22, 
 
 s. Hi, does not include "accounts stated." 
 
 Smyth V. McNdl, 2 Old., 75. 
 
 2. No right to Jury niedietate linguae- 
 Alien ilefrndants are not entitled in tiiis I'rci- 
 vince, in any case, civil or criminal, to a jury 
 lie, mcilii fa/i limjuni'. 
 
 (jmi'ii V. Ihirddlil ni, 1 Old., l-'O 
 
 3. An alien may be a juror. 
 
 7/."/. 
 
 4. Oath of allegiance -Effect of American 
 
 treaty— Aliens do not become British subjects 
 by the oath of allegiance, and are not privi- 
 leged by the license of the Governor of Nova 
 Scotia. 
 
 Amerieau treaty dissolved all connection with 
 the subjects of the United States. Persons born 
 
;{ 
 
 AMENDMENT. 
 
 38 
 
 tliclf llliilrl' llll' Killji's allfJ.'iMllff. ill!' llnl ell- 
 
 liilcil In till' jiiivilcni's III' Kt'itish Nulijtits. 
 
 Th' I'mrltl. iir, , Stcw.iil. IS(>, 
 
 '}. I'roororallciiiiKC ulicn alien has title 
 
 — WliL'ii ilil'iiiio of iiliiiiiiigu not aviiiljiblu - 
 Till.' law leiiuiri's .-tiiit iirmit trmii ilic piii'tifs 
 who .Nct up an iiliriiaj^'i' as ,ij,'aiii>t lilli. 
 
 >i iiili/i . tliat as Inn^' assnlliricht fsiali' I i'liiains 
 vcstfil ill an alien lif may inaiiil liii rjiTi inriil. 
 
 (Jiiiii n /■' /• W'ilkins. .1., as loan alini drviscc 
 
 in tl'llSt tn sell. 
 
 /'(/•. I olinstont-', K. .1. It is not coiiipiiiiit to 
 a iKU'ty who ;.'o('s in iimlii a cmitiait In piiriliasi.' 
 to avail liiinsclf ot tin' (Icliinc of iilit'imj.'t'. 
 
 }\'i/li(nii.^ •> nl. V. .l/.v /•.-■. •_• \. S. I)., I.-.7. 
 
 ti. I'lireliasc of' liitor<>st In shipping: by 
 
 I'laimill, liL'iiii.' an alien. |)iii(.'liasi'i| fioin A. S. 
 one I'ouith of till! sihoonur Aiiaeonila. 'I'lii' piir- 
 ehiiso moni'y was jiaid, luit tlieie wiisno loiiti'iK't 
 in wiitiiij;, nor any liill of salo uxfeuteil, nor was 
 any hill of sale or traiisfir ever ileinaliileil Ky 
 ])laiiitilV, lull it was agiei'd that, in the event 
 lit A. S, (who was still to lie eonsiilereil sole 
 nwiier as rei,'aiili'il tliiiil piiities)sellilii,' the three 
 iviiiailiiiii,' folliths, lie sholllil also sell the Jilaili- 
 tilV's I'ouith. 
 
 .\. S. lia\ inuilieil. hisexeeutdl's.soldhisinteri.'st, 
 hut ili'l not sell that of |)laiiitill'. who then hroiiglit 
 liisaetiiin for lireaeh of the agreement. 
 
 //' III. that plaintitr. as an alien, lieingdi.sipiali- 
 liiil fioiii taking a liill of sale or transfer of a 
 I'llitish Vessel, under 17 and 1 .s \'ir., e. Kll-, and 
 tlie agreement sued on lieing an attempt to 
 evade tlu' statute eould not he enforeed. 
 
 Ciitt.i, V. Mrl'niiui,' 1 1 (iL, I N. S. I)., 4tiS. 
 
 ALLIVIOX- 
 
 *i. HIVKIt.s;. 
 
 ALTKIMTIOX 
 
 1. Ol" XKco'l'lAlilJ'; I.XS'l'lU'MKX'l'.S- 
 ^- KILLS ()!•' ];X( H.\\(;j.: AND 
 ri:().\!i,~;M)KY Xo'l'Ks. 
 
 •-'. Ol' H;)N!)-.sv, 150X1). 
 
 AMBASS.inOKS. 
 Cannot grant licenses to autliorizc the 
 
 eiiuiiiy to trade with the British Dominion. 
 
 Thil Srdlij Ann, Stewart, 3(57. 
 
 AMKXDMKNT. 
 
 I. (»l' W nil's, ;ts. 
 
 11. OF lM,K.\l>IX(iS. 41. 
 
 111. Ol' ltriJ:s,.t7. 
 
 IN. .MI.SCKLLANKOUS, IS. 
 
 1. OF WKITS. 
 1. Amendment allowed of Common Law 
 
 writ, so as to make it a siiimiions in Fipiity. 
 
 A'l/.io// V. Cijiiiiov.i. 1 Old., 4(Mi. 
 
 i. The Court will not amend a writ In so 
 
 many pal lieulars as to make it an entirely new 
 writ. 
 
 Stdjili.i 1 1 nl. V. Taijli»\ .lames, .'}•_'(). 
 
 3. Adding party as plaintifT after argu- 
 ment of rule fornew trial y/« /(/, in an aetion of 
 ejectiiieiit that as there was no jiretenee of title 
 in the defendants and the phiintitl's would have 
 hieii entitled to judgment if a third jiarty's 
 name had heen on the leeoril, the reeord might 
 now, after argument, lie amended hy aihling 
 siieh third ])arty as a lilaiiitiH'. 
 
 lidiilUli r V. Kiiork 1 1 a/., '2 Old., 77. 
 
 4. Adding party I'arty Joined must con- 
 sent in writing — Li'ave having heen granted, on 
 an apiilieation made for that ])urpose, to aineilil 
 hy aiUling the name of .\I. L. W., a.s a ])laiiititl' 
 
 Hi ill, that, under the wording of Order .\\'l, 
 I'ule 10, sueh an amendment eould not lie made 
 in the ahsenoe of a written I'onsent hy the jiaity 
 to lie joined. 
 
 M'lirzhinyv. ll'iW/, 7 R. & ti., 414. 
 
 5. Adding new plaintiff at trial Consent 
 
 — 'Si mill' . a writ eannol lie amended on trial hy 
 the addition of a new plaintitf without sueh 
 |)laint ill's consent. 
 
 CalioiJii if (il. V. Morroir, 1 Old., 148 
 
 a. Adding party Xo laches— defendants 
 
 deiiiiiried to plaint ill's" writ, on the ground, 
 among others, that the Attorney-Oeneral had 
 not lieen made a ])arty. The demurrci' was over- 
 ruled liy the .ludge in Eipiity, wlio.se decision 
 was sustained hy the Court //( Ikiiico on appeal, 
 from which decision an appeal was taken to the 
 Supreme Court of Canada, where the appea". was 
 dismissed on the ground that the Court had no 
 jurisdiction as the decision was not iinal. Plain- 
 tiffs then sought to amend tlif writ by adding 
 the Attorney-lieiieral, to which the defendants 
 
30 
 
 AMKNDMKNT. 
 
 40 
 
 nlijcrlcil, nil till' niipiiriil iifilcliiy. Tlic ilrliml 
 lints Will' ill iiiiKscKHinn ipf ilii> prcipi'i'ty. iikiii 
 frnlii till' |il;ilii' ill's, ill M'>|ii'i't <it' wliii'h tin' Miil 
 UiiN li|nii;.'lil , ami were ciiinyiii^' the w Imli' |Hcitlls 
 (if it, Nil llial till' ilclay wa.1 |il('iuili<'lal In llic 
 lilaiiitills latlici' than In lliiiii. 
 
 Il'hi. lliat till' iilaiiililFs will' tiililliii (n \W 
 
 aiiH'liiliiii'iit a|i|ilii'il fur as tliry liail ii<>t Imiii 
 
 I'ciliiss ill till' |Hosciiiliiih iif the liUl.-r. 
 
 Till W'liii^iir >{■ .tiiiiii/iiilix Itiiihriiii I'll, i: 'I tie 
 
 III s/i rii I 'niiiih'i 1 Itiiihritii I 'n. , K. \',. I ). , .'(.■|,''i. 
 
 ;. Adding; (Icmidaiits liable In (lie ailcr- 
 
 native I'iaiiitills a|i|ili('ii til iiiiii'iiil tlii'ii writ 
 liy aililiii>; ilifiiiilaiils mi the ^'riiiiinl that a 
 tU'feit cxisteil ill I lie iilj^lUlii'.iltiiil: nf liie iletVllil- 
 aiit eiiiiipaiiy ami ill iiriler that in tiic event nf 
 failure apiiiist the ilefemlant einiipaiiy, they 
 might !ia\e relief aj,'ailiNt the ilefeinlaiils wlumi 
 tliey siiiight to ailil. 
 
 l/i/il, timt thu iiliit'liilnieni eoiilil imt he al- 
 loweil. 
 
 I'll- Hitehiu, H. .1. — Vim may iiiay alli'inate 
 relief iigiiiiist tiic same defoiiilant ov ilefeiiiluiits, 
 Init yim laniint luiiii; ilill'ereiit sets nf ilefeiulaiits 
 anil say — " If I am not eiititleil tii relief against 
 A, 1 am entitled to relief ayainst B ;" ynu must 
 make u)) your mind against whom you are 
 entitled to relief. 
 
 Hut M_r iith Rev. .Stats. e. 1(14,0. Hi. 
 2'he Xora ScoliaSn// IVork-til; Ex/loralloii Co. v. 
 The Halifax <0 Capv Breton Railway <(• Coal 
 Com/iaiiy, R, E. 1)., 333. 
 
 8. Adding; parties— Boutilicr v. Knoclt, 
 
 2 Old., 77, distinguished — A speeial venliet in 
 ejectment had been taken for plaiiititl's hy con- 
 sent, subject to the opinion of the Court. It 
 appeared at the argument that the action had 
 been brought in the name of some only of the 
 individual members of a corporation, ami not in 
 the name of the corporation itself. 
 
 Held. Young, C. J., di.tseutiyif/, that the 
 verdict must be set aside, with costs of trial and 
 of argument, and that an amendment without a 
 new trial, as granted in Boulilier v. Knock, 2 
 Old., 77, would not be allowed, the amendment 
 in that case without a new trial being granted 
 solely on account of its peculiar circumstances. 
 A new trial was granted, with leave to the 
 plaintiffs to amend by adding the names of other 
 plaintiffs. 
 Battleman et al. v. McKenzie et al., 2 Old., 159. 
 
 9. Adding parties- Policy of Insurance- 
 Condition requiring action to be brought 
 •within six months — New plaintiff allowed to 
 be added after six months — At the trial of an 
 
 aeliiiii on a policy nf insiiraliee ill aimiiillliellt 
 Ma> jiialileil Iimri' I hall six months after the In^s 
 allnMiii;,' a party tn be added as a plaintilV, 
 allhniif.'|| the jinliey reipliled the aelinll tn liu 
 brnii;:lil w itiiiii si\ imniths. 
 
 Ill /'I. thai I he aiiiemluieiil was prnperly 
 Lrraiileil. 
 
 Ihiiill 1 1 III. v. 7V.' ir< «/i /■/( .1 <.<i//v(/(i'i i'li., 
 I (» R. \ (I., ITS ; 
 
 ! ti ( '. I,. \\ , .•.;;'.». 
 
 Oh ii/i/ii III h, III! ,>!ii/iri III! ('unit m' I 'imiiilii. 
 
 The jml>.'melil nf the .Supreme Cniirt nf Nova 
 Seiilia was re\erse(|, on ailnther pnilil linwever. 
 
 y/e W'l >>i rii .liiiiriiiin (.'11111/111111/ w I li^'ill 1 1 nl., 
 
 i-.'s. c. 1:., nil. 
 
 1«. Writ by " Kxenitors of M. and J." 
 
 Amendment after verdict siib.stitiiting the 
 word " .J. aH surviving partner of M.." refused 
 
 M. sued L. and 1'". as jnilit eniitraitnrs. I,. 
 dieil, ami his execiilnrs were siibstitllteil nil the 
 reenld. M. died, ami his exeelltnis were substi- 
 tuted. On the trial it appeared that.!. Iiad been 
 a i)artner and encnntraetnr with .M., ami l;!" 
 name was added. The writ was amended by 
 adding J.'s name and the cause went to trial 
 as, Kxueutnrs nf M. and .1. i\ Kxeeiitnrs nf L. 
 and F., and the jury t'niiml a verdict for .•?(j,')l in 
 favor of .1. as survivng partner of M. 
 
 Ill hi, that after verdict the t'ouit coulil not 
 amend the writ by expunging the names of tl;e 
 executors of M. and adding to the name of J. 
 the words, "as surviving partner of M." 
 
 JohiixoH et al, v. Lithijou et al., 
 2 R. & C, ')ti7. 
 
 11. Answer to amended writ— Time for— 
 
 I'laintiffs liaving amended their writ, served it 
 on defendant, with a notice, indorsed, loquiriiig 
 him to answer within fourteen days, otiierwise, 
 plaintiffs to be at lilierty to sign final judgment 
 by default, and have the writ taken pro con- 
 
 /('■■<.10. 
 
 Defendant, who had duly put in his answer 
 to the original writ, did not within the time 
 limited in the notice, answer the amendment, 
 and plaintiffs ol)taine(l a rule 7iisi, calling upon 
 him to show cause why the writ should not 
 be taken pro conjMno, etc., before the argument 
 of which rule defendant put in an answer, not 
 denying the statements in the amendment, but 
 leaving the proof of them to the plaintiffs. 
 
 Held, that the rule nid must be discharged 
 with costs, defendant having a right to put in 
 his answer at any time before tlie marking of a 
 default. 
 
 Lawaon et al. v. Belloni, R.E. D., 107. 
 
41 
 
 AMKNDMKNT. 
 
 42 
 
 1*2. On niolinn for now trial i'Ik' ini^ 
 
 lion to iniurt tliu niiincH of oii-tcniintH in n writ 
 (if |)!iititi()ii in a fativl (iliji'i'tii)ii when taken iit tin- 
 ti'iiil ami iiecil not )>(.' picuili'ii in aliati'Micnl. 
 Till' Coiiit will not iinii'n<l tlif plaint ill's wiil 
 dining' iirgiiinont of a motion to sit it asiilu. 
 
 Ihiiitii V. .l/'7\'i //////, .lames, H'J8. 
 
 i:{. TriiHloes of Hchool Rurd porNoniilly 
 
 I'laintil1'lir<iiigiit action against the ilcfrm hints 
 fill a ni iiiilainns to t'ompcl tlii'm to pidviili; for 
 a ilclil iliii' him liy tiic trustees of a scIiudI stx'- 
 tioii. 'i'lu'writ was a^jainst till' ilcffinlants per- 
 sonally liut I'ontaiiU'il a stati'iufiit that thuy 
 wi'iT triistocs, \-i'., ami that ileffmlant I), was 
 sfcri'tary. Kviilcnci" was taken as to the I'xis- 
 timii of till' (li'lit. anil the casi' eanic on for 
 lnMrin:.' ninler the pli'ailin>;s ami oviilcnci'. Il< lil , 
 tliiit the triistfL's coiilil only ln' sncil in their cor- 
 pnrati' name ; ami that the amenilmi'iit to that 
 ftri'i't, aski'il for l)y jjlaintitl' ai thu lieaiiiii;, 
 I'linlil not lie jiermitteil. 
 
 Codhw Diiriil.iiiii it (il., \\. i\ I)., :\~. 
 
 11. Writ or replevin >'o notice to appear 
 
 and plead indorsed Irregularity, but amend- 
 atile A writ of replevin havinj,' lieen issued 
 withniil the notiee reiniired to lie indoi'sed 
 tiieieim liy the I'raetiee Act, (notiee to appear 
 iiiid plead). //■/'/, that it was irreu'nlar, Imt 
 might lie amended on payment of ensts. 
 
 (''lull /•oil V. ('null run. 1 \. .">. I)., 17'>. 
 
 II.- OK I'm:ai)IN(;,><. 
 1. icilon for work and labor Counter- 
 
 claim Reetilication oC eontract Amendment 
 of pleadings - Laches, accounting for In an 
 action to recover an ainonnt claimed to lie due 
 fur work and lalior done, defendant sonj,'hl to 
 plead liy way of otl-set or counter-claim, an 
 iunoiint which plaintill' had agreed to pay for 
 cvi'iy day that his contract should remain unexe- 
 cuted after the date lixeil for its completion. 
 Tlu! words "per day" having lieen omitted 
 fniiii the eontract defendant ai)plied to the 
 ciniity side of the court for a reetilication, and 
 iilitaiiied an order staying proceedings in the 
 inciiiitinie. 
 
 All order, rectifying the contract liy adding the 
 woiils omitted, was granted on the "iTtli May, 
 hSS,"i, hut no stej) was taken liy defendant to 
 iiiaciiil her pleadings until October following, 
 when an application was made at Chambers for 
 leave to amend by filing the counter-claim. 
 
 I>efeiiilant"s counsel accrmnted for the delay 
 I'.v alleging on atKdavit that he could not have 
 comiter-clniincd prior to the rectification of the 
 
 I'lililiact, and that suliseijuently he was delayed 
 by the nlweneu of witneHses from whom it was 
 necesHary to obtain certain information. Tho 
 application for leave to amend having been 
 refused, 
 
 III III, on appeal, that although the delay after 
 
 ' tho lUaking of the order had not been natisfac- 
 torily accounted for, the refusal to permit the 
 amendment on terms was not justitied by the 
 circunistancos of tliu ease. 
 
 [ The power to amend is so plainly intended to 
 allow all mistakes and errors made in pleadings 
 io be rectilied in the ab.sence of inii/ii jiilm, and 
 under such conditions as to prevent injury to 
 the opposing party, that tho cimrt will hesitate, 
 except under very exceptional circumstances, to 
 refuse an amendmeiil to either party where such 
 injury would not occur, or where, if occurring, 
 it could be eompensated for. 
 
 /*( ;■ McDonald, ('. .!., ilii-ii iilimj, that the 
 defendant was guilty of undue and unexplained 
 delay, and was not entitled to the amendment 
 applied for by reason thereof. 
 
 Si/nioiiils it ((/. V. /•'/>■/( »•/(■/', 7 R. & (•., 4.S7 ; 
 
 7 C. L. T., 4;W. 
 
 2. .4etlon on polley Addln!? eount for 
 
 failing to furnish policy contracted for - 
 I'laintitf being unable to recover on a policy of 
 marine insurance on account of a clause inserted 
 without his consent, was allowed on trial to add 
 a count, setting out that defendant had con- 
 tracted to furnish a policy such as they had been 
 in the jiraetice of furnishing at the date of the 
 ap|ilication, but had neglected and refused to do 
 so, and to insure his vessel thereby. 
 
 h'liliirt.ioii V. Diiilmitii, 1 R. i.*i ('., ."iD. 
 
 .J. .\fter Judgment on dcinurrer-An ap- 
 
 ])licatioii to amend after argument and judg- 
 ment oil a demurrer stands in a diH'erent posi- 
 tion from one made before, and the a])])licant 
 (defendant) should make it aj)pear by alKdavit 
 that the defeni'C proposed to be ])leaded is 
 founded on fact. When this was not done, and 
 the pleas which it was proposed to add weie 
 clearly demurrable, the Court alKinied the order 
 of the Judge at Chambers, refusing leave to 
 amenil. 
 Cahlircll V. S/ailaroiia Fin- and Life IiiKuratice 
 Co., 2R. &<}., 300; 
 1 C. L. T.,70!». 
 
 4. Amendment of Pleas rcfiised after vcr. 
 
 diet for Plaintiff —Waiver required by condi- 
 tion to be in writing— Striking out plaintifi" 
 improperly joined — After a general verdict for 
 plaintiff in an action on a policy of- insiu'ance, 
 
43 
 
 AMENDMENT. 
 
 44 
 
 defendant moved nt the argument to add a plcii 
 scttinij up the defence that the action hud not 
 hcen l)r<night witliin six nionthw as re(|nir(Ml liy 
 the conditions of the policy. 'I'he anicndnicnl 
 was refused. (Su 2 R. & (i., .SdOi. 
 
 The policy of insurance contained a r<indition 
 that no re(iuirenicnt as to proofs f)f loss slion'd 
 he Maivcd unless in writing. The jiroofs of loss 
 were ilefective, and the Coin't Indd that tliere 
 had liecn a waiver, hut as it was not in writing 
 the verilict was set aside. 
 
 CiihJii'ill y. SidihtiTiDn Firr (tiul Lil' /n-oirdiiri 
 Co., .S Ft. \- (;.. '-'IS. 
 
 /I'lP •((•■>■■((/ oil (i/i/i(C(/ /O /III Sii/a-) III! Ciiini nf 
 Canada, where, however, the(nicstion of amend- 
 nielit was not totiched. 
 
 The Court lohl. as to the ]ioint raisfil fur tlie 
 first time in the case liefore tlie Siipriiiie Court 
 of Canada, that under the jirarlicr in .s'ova 
 (Scotia, (4th 1!. S., v. !M, s. !M), wlicre the wife 
 is impropi'i'ly joim'd as co-])laintitl' with tlif 
 hiishanil, the suit does not aliiite, Imt tlic wife's 
 name must he struck out of the record, and the 
 case determined as if hrought hy the husl)and 
 alone. 
 
 Calilirill V. Sfdilitco/ia Fin ami Llj'i Iiisiiriiiin 
 
 Co., 11 S.'c. R., •_'!•.' ; 
 
 .*? C. L. T., !I4. 
 
 5. DlsCrClion of JlUljte- I'lalntitl was ])cr 
 nutted at thf trial to amend his declaration hy 
 alleging tlie interest in tlie insiiraiiee to he in 
 one M., along with the others originally name(l. 
 in an action on a policy of insurance. 
 
 J/i/il, that the dudge had the right to allow 
 the amendment in his discretion. 
 
 //«/;(.>■' (/ V. J'roriiliiici: Wu-'hiii'jtoii Ins. Co.. 
 
 1 H. k{\.. :V.)X 
 
 recovered jitdgment against defendant as admin- 
 istrator ;nid that to the execution tlieieoii, tiie 
 slieritf had retnrne(l that defendant had no 
 gdcids or ciiattels which were, iVc. liut had jiaid 
 the costs of the suit (tlie return Ijcing set out 
 n rliotiiii]. and (lie declaration proceeded, 
 •• ii-Ik ri III/ if (i/,/i((ir-' that tiic defendant hath 
 eloigiiecl, wastt'd. and converted to his own Use 
 giioils." &e. Defendant ilelimrred <in the 
 grounds, tliat no f/< i'((-v/«i'//' w as aUeged or sug- 
 gested ; tliat widle it was alleged to al)|>ear hy 
 the return that defendant liail eluiuiied and 
 wa-^ti;d I lie good.- 1 if the intestate, the reliirn, 
 whiiOi was si't out i-i rliiit'nii. did not allege <ir 
 suggest a il' nt.'ifori/ ; that it did not tollnw as a 
 legal inference from the return tliat defendant 
 had lieen guilty of a ili rii.-<ioril. and tiutlier tliat 
 the ill ra'iUiril should he alh'ge.l as a tart and m.t 
 stated as an inference. 
 
 Ihlil, that tlu' ride iiiti to set aside the ile- 
 murrer its irregul.ir must he made ahsolute. and 
 that dcfi'lidant if emharrassed hy the deelaia- 
 tion. shoulil ha^•e a|ii)lied under 4tli I!. '^.. e. 
 04. s. 1l'4, to h.-ive it amendeil. ami \\a> pre- 
 cluded liy the statute froir, demurring. e\ee)it 
 after non-com])liaiice liy plainlill' w ith a judge's 
 oriler to amend. 
 
 Ritchie. !•;. .1.. ili-<-i ii/iiiij. 
 
 .\lorr:<o,i V. Kdiiiliil:. •_' |!. \ C. 14S. 
 
 Oil /i/i/iiii/ lit /III Sii/ii'i nil Ciiiir/ of Cmaiilu , 
 
 111 III. an order setting aside a demurrer as 
 frivoliius and irregular under the \ova Sentia 
 Traetiee .\ct, l!ev. .^tats,. 4tll .-series, eh. !I4 
 is an order on r. matter of )iraetiee and not a 
 linal juilgmeiit a]i))ealahl«' under the 11th sec- 
 tion of the .siuitreme and l*",\che(|Uer Court Ait. 
 
 .\p])eal dismissed withotlt eii--ts. 
 
 k'liiiilirl- y. .Unrri.^oii. -2 S. C. I;.. !•_'. 
 
 «. Grounds of defence Defence of Ulesal- 
 
 ity added — Terms of amendment — An amend- 
 ment to the grounds of defence having heen 
 allowed hy the .Judge of the County Court at the 
 trial raising the defence of illeg.'dity under the 
 Act in relation to fmious driving. 
 
 //'/'/. that the aniemhnent was properly made, 
 being <ine necessary for determining the real 
 qtiestion at issue within the meainng of Order 
 xxviii, Hide l-Jof .-.th R. .><., c. 104. 
 
 .l/.<(), no terms having heen imposed in iillow- 
 ing the amendment, that the Court eoe.ld luiw 
 make .such an order as would do justice hetween 
 the parties. 
 
 Doraii V. Cliamhi r-s L'O N. S. R., (S R. ^: ( ;. ), .'iO!) ; 
 
 !»C. L. T.. 7. 
 
 7. No demurrer until after non-compli- 
 ance with order to amend — 4th R. S., c. 94, s, 
 124— I'laintitl'set out in his writ that he had 
 
 8. Of grounds of iijipeal refused wlierc 
 
 cause had hecome a remanet I'laintiils' iutinii 
 was hrought in the County Court tn leeuver 
 ])rofessional fees as solicitors, attorneys ami liar- 
 risters. The primipal (juestif)n of fact was as 
 to tlie services euvered hy a sum of .'S|(l(( paiil liy 
 defendant tn ]ilailitill's upon which the eviilenee 
 was conllieting. The jndgment liehiw was for 
 idaintitl's and the ilefemlant haviiigappealed a])- 
 jilii'd after the cause had lieeli one term on tli^ 
 docket and had lieeoiiie a remanet to amend the 
 grounds of ap])eal under Section 104 of the 
 County Court Act of 1880, hy adding tliegrouml 
 that harristers had no right to recover for i)i(i- 
 fessional services. The Court refused the amend- 
 ment and held on the merits, thtit the evidence 
 was not strong eiunigh to justify them in dis- 
 turhing the judgment. 
 
 .]/ol/oii if al. V. liriiiiinii, '2 R. * (i., 16'2 ; 
 1 C. L. T., 663. 
 
45 
 
 AMENDMENT. 
 
 46 
 
 9. On appeal— AmciUlmCIlt allowed - //'/</, <n\ appeal, tliat the .Tudge l)ol()\v was 
 riaintitr was allowed, after aiyuineiit on appeal, right in refusinj,' t!ie aiuendiiieiit moved fur, in 
 
 to aiiieuil a count inartistically drawn. 
 
 the absence of any eviileuee to show tliat the 
 
 X<((/ V. Allan it al., (i K. k (1., 44!) ; defendant would lie in a position to estaMish the 
 (I (' L. T., .").'{(>. defenec' he sougiit to iiitroduee. 
 
 AIko. that the rejeetio)i of the anieixlnient 
 niij,'ht furnish good ground for a new trial if it 
 had Ix^en uuuU' to ajipear hy atlidavit or fi'oin 
 the evidence given in the eause that di'feMilant 
 would jjrolialily lie in a ])osition to estulilish the 
 lldiiil V. Iloi-kmll, '1 \, S. I)., 1!)<.». \ defence sought to lie set \\\>. 
 
 I H(tlijh.c liaiikliiii Co. V. (Hills, •_>(»\. S. R., 
 
 (S K. i\: (i.), 4(J(J. 
 
 10. On second trial What amendment 
 
 not allowed — On a second trial no iiuienduient 
 adding or sulistituting a new cause of action or 
 ground of defence will lie allowed. 
 
 11. Power of Court to order at any stage 
 
 -Order xix. Rules 17 & 19 -Order xxviii, 
 Rule 1 -In an action for money had and received, 
 defendant's pleas fell short of tlu' eN])licituess 
 rnpiired hy order xix, Rules 17 a.>d I!), and < ''<urt will grant rule /nW f,„. .liscontinuance and 
 
 13. Time williln wliioh to make Of D. , lar- 
 
 ation, wlii'U not maile uitliiii twelve months the 
 
 taxation ot costs. 
 
 Tri iihtiliii \. Ti'' iildil/ii, •]iu\\es, lot). 
 
 i 
 
 14. Unnecessary lenfjtli ofpleadinss l^^'- 
 
 claration, when of nuiiecessaiy length, or<lered 
 to lie aini'lidcd. 
 
 Wijoiliriirtli c. ]\'iiliritn\ .lames, lll.'i. 
 
 15. When granted during trial When 
 
 refused — Discretion of Judge —In an action on a 
 mining the(iuestions in controversy between the ,„.oi„issory note defendant pleaded several |ileas, 
 |iarties; but as the amendment, if a]>plied f<ir 
 in the Cmiutv Court, would have avoided the 
 
 would have warranted the entry of judgment 
 for ]ilaintiH' on admissions in the iileailings. 
 
 'riie .lu<lge of the County Court, before whom 
 the case was tried, having dismissed the action 
 without costs, jilaintilt' a]ipealed. .\t the argu- 
 ment of the appeal an application uas niade on 
 behalf of defiMidant for leave to ainiiid. 
 
 Ifilil, tliat under Order xxviii, Kule I, the 
 Court has power to allow an aineiulnienv of the 
 jileadiugs at any stage, for the purpose of deter- 
 
 uecessitj' <if the appeal, it could only be allowed 
 on payment of costs. 
 
 It was contended at the trial that defendant 
 
 none of which denied the making or indorsing 
 of the note, or asserted its invalidity in relation 
 to the Stamp Acts. At the trial, before the case 
 was opened, he moved for leave to add jileas 
 under the Staiii]! Acts, asserting in his .itiidavit 
 
 liad represented that the money .sought to be (|,,^f ,,„ ,|j^^, mdrniiig of the trial he had 
 
 recovered was in his possession, and that as the 
 action was brought in eonserpience of this repre- 
 sentation and plaintitl' had suti'ered preju<lice, 
 defendant was esto]iped from setting up this 
 defence. 
 
 //(/(/, that the (luestion of estoppel could not 
 arise until the issue was settled lietween the 
 parties by the amendment. 
 
 liiirhCw Hull, •_'(» X. S. R.. (S K. ,t (1.), '1V.\. 
 
 S C. I... ■{"., 4(HI. 
 
 12. iterusal of .\mendmcnt of defence 
 
 covered that the stamps upon the note had not 
 been duly obliterated aicording to the provisions 
 of the statute, ;!. defect of which he had not 
 been previously aware. The jiresiding .ludge 
 refused his ap])licatioii subject to the opinion of 
 the court. 
 
 //'/</, that the judicial discretion hail been 
 ))ropeily exercised, because (irstly the discovery 
 of the alleged defect in the instrument might 
 have been obtained by i\\w diligence before the 
 trial, and secondly, and especially because the 
 real i|iiestioii in cont ro\ersy lietween the |iarties, 
 in absence of anything to show the party seek- uhich they both came iirepared in tiy, had no 
 ing it could establish it — Defendant was sued relation whatever to the valitlity of the luite 
 
 as niaker of a jiromissory note drawn by 
 
 miller the Stamp Acts. The principle go\ein- 
 
 payable to the oi'der of 1^. .1. H., and indorsed ing the exercise of judicial discrelinn in relation 
 
 by the payee to the ]ilaintill'. .\t the trial to allowing amendments is not to permit them 
 
 defendant moved to amend by adding ]ileas set- to be made where the etl'ei't will be to substitute 
 
 tingout that the note was made for tlu^acconuno- a (piestion for trial v.hieh is substantially dif- 
 
 dation of the jiayi'e, etc. The motion was ferent from that which the jiarties came lue- 
 
 refused and judgment given for the plaintilf on pared to try. 
 
 evidence of the making and indorsement of the .\lthough a jjroper anu'iidment cannot be 
 
 note, in the absence of any testimony on the part refused at the trial when circumstances during 
 
 of defendant in support of his pleas. 
 
 its progress unexpectedly manifest a necessity 
 
47 
 
 AMENDMENT. 
 
 48 
 
 forsueli an ■uiu'tuliiUMit, pi'iii('i))lo and coiivcii- 
 iciico aliko ili'iiiiiiid that stieli a ini)tii)n slioulil 
 not lie enlcrtaiiifcl in any ease iluring tlic trial. 
 where, Kty observing iliie diligence, leave to 
 amend might have been obtained at an ante- 
 cedent peiidd. 
 
 Till liitiik of Xova ScoHa v. Cfil/niirni, 
 •2N. S. 1).,43S. 
 
 III. OF RL'LKS. 
 
 1. On Argument -A rule taken " on read- 
 ing the judge's minutes " was allowed to be 
 amended at the argument by inserting a refer- 
 enee to all the jiapers. 
 
 (.'rrii/ v. ,S7(,/ Co. <;/' C'lii'nld, 1 R. >S: <!.. 4;U. 
 
 2 Objection not taken at trial Amend- 
 ing consent rule --'riie Court will not. on the 
 aigument of a motion to set aside a verdict, 
 eiitert.iin an objection which was not taken at 
 the ti'ial where tiie objection might have been 
 remedied if taki^n at the trial. 
 
 'i'iie ( 'ouit will permit the d'^fejidanl to amend 
 the description in the consent rule after vcrdiit 
 against him nixm payment of costs of former 
 trial. 
 
 (n'/lis V. ('<i,nph.n, .Tames. IS. 
 
 3. Kllle for Appeal iluic fora].pe;\lallouiMl 
 to be ameudcil by insciting in the recital of 
 papers u])on wliicii it was gianted, a recital of 
 a ci'rtain aliidavit. 
 
 M,-I.„rni V. .I/.-.V.;/. ■-' R. .V ('.. 1). Ki-J. 
 
 4. Rule for Commission amended Anend- 
 
 inent of I'ule for I'ommission to examine ccrtiiin 
 spei'ilied witnesses abroad grantcfl to enal)lc 
 othei' witnesses to be examined under the com- 
 mission. 
 
 S<i/lrr\. Ifii'jlii.^. .lames, ■_'4S. 
 
 5. Kulc nisi for Xew Trial liuU- nis, f,,r 
 
 new trial, granteil by the .Imlge cm I'ircuit, 
 allowed to be an)ended by inserting groinids 
 brought to the notice of the Court by aliidavit 
 on the first day of term. 
 
 McCiillij V. Diibniini, :< H. kC.. 4S1.'. 
 
 6. Rule nisi to deniolisli a bnildinK 
 
 Information ordered to be Hied. I'arties pro- 
 eeeded against under the piovisions of section 
 fl.").")of the city laws, for infringement of the regu- 
 lations relating to buildings, are eiititleil to an 
 information us in the case r>f Citii of Jln/lt'iix v. 
 Mrljinrii, I Old., tiSO, if they reipiiie it. when, 
 if the court declares tiie structure a nuisance, 
 
 the council may order its removal, and it is not 
 necessary to re-sort in the first instance to the 
 I'olice ( 'ouit, imder section ().")4. 
 
 In this case an order iiini was obtained for the 
 demolition of a building, on the gioinid that it 
 had not been constructed in accordance with 
 the jirovisions in the city charter relating to 
 l)uildings. The ))roceC'dings were ordered to he 
 amended liy tiling an information as again.st 
 Seeton, the owner, onutting Hrookfielil, the 
 contractor. 
 
 //( v. City of Halifax and Sfcloii d al., 
 .S R. &('.,.%.■). 
 
 4. Rule nisi returnable In " November 
 
 Term " — Amendment allowed subatituting 
 "December Term" — On the reading of the 
 minutes, it appeared that the nde /(/■-/ for a new 
 trial had been made ret mnabU^ in the Xovendier 
 Term. Objection having been taken, the Court 
 allowed the I'ule to lie auieMd"d by substituting 
 "December" for •'Xovendier," and the argu- 
 ment iiroceeded. 
 
 Lniiijli y it III. V. Xortlii rii Iiisiirmifi Co., 
 .•{ R. <\: C., .")!(). 
 
 IV. A1I.>«KLLAXK()US. 
 1. Aliidavit for appeal from Magistrate's 
 
 Court Detect in -Power of County Court 
 Judge to amend -The aliidavit f(jr apjieal from 
 the .Magistrate's Court wi,s defective, nol being 
 heaiied in the cause, and t he words " before irie"' 
 being omitted from tlie jurat. The .liidge of the 
 ('ouuty ('oiirt was satisfied that llie defects 
 occurred through inadvertence, and without the 
 fault of the ap|iellant. and without any intention 
 to evade the re(|uiri'inenls of the statute, but dis- 
 missed the ajipeal on the grounil that he had no 
 |iowe|- to iiiuend the aliidavit. 
 //'/'/, that h(' had such power. 
 
 Woodirorth v. Iiiiii", (i R. i^ <>.. "J!)."!; 
 t; C. I-. T., 440. 
 
 '2. Appeal Appellant alloM'ed to lile new 
 
 bond -The boml foi' an appeal, taken under Sec. 
 KM) of the ( oiinty Courl ( 'onsolidation Act who 
 given merely to pay the costs of tlie appeal, and 
 not to resjiond the judgnuMit on ajipeal. so as to 
 cover the costs below. ( )n motion to <lismiss the 
 appeal the ( 'ourt ordered a new bond to be lileil, 
 the a])|iellant to pay the costs of motion. 
 
 Taylor v. liarlii, \i & (i., •J!tt). 
 (iC. L. T., 441. 
 
 3. Appeal from refusal of Jud^c of the 
 
 Court to amend his minutes .Apiilicatimi was 
 niaile to a .Judge cif the County Co\irt after an 
 
49 AMENDMENT. 50 
 
 upliiiil hail Ipffii p.ifcctfd, tniinu'iiil hisiniimtes I 7, fosls Of linSUfCrssfillly 0|)|)08ing HIO- 
 
 l>y aildiiig testimony ^''^'^'1 "n tlic trial liut notation for — Wlu'ii a nilc t'ni' an aini'mlmuiit is 
 
 noteil on tlif niiuMti'S. 'I'iit; a)>|)tication was ojjposcd, tin' costs must lie paid liy the unstic- 
 
 n'fusid on tile 1,'iounil that the dudgc had no ccssfiil paity. 
 
 jiowiT to ;uncn<l after an apjjcal had liccn taken M<K(ui v. MrK'i;/. 2 'riiom., 7.'>. 
 
 on the nK'iils. An a|)))eal iVoni this refusal was ' 
 
 tali. 11 undei- ciiapter •->. Section iMt, of the Acts 8. Counter-claini for aiiioiiiit above (he 
 
 of ISSd. ]t appear.'il that theevi.hMicehad lieen jurisdiction of the County Court cannot be 
 
 tenderi'd at tiie trial and rejected as irrelevant, amended after plea objecting to it on that 
 
 //./'/, /"*• -McDonahl, ('. .(.. there could be ground— In an action brought by ])laintitl' in 
 
 no appeal from the rcfu.sal of the judge to ameml the County Court. r)n an awaid, t(j recover the 
 
 his minutes after the appeal had been perfected, amount tiiereof, the defendant counter-claimed, 
 
 Hven if the Court believed the learned judge to besides other items, for the sum of .■?4(HI, being 
 
 have lieen wrong, it would not compel him to the value of a machine wrongfully converted by 
 
 add evidence which he had rejected as irrdc- the plaintiff. I'laintitf rejdicd to the counter- 
 
 viint. claim, among other things, that it was beyond 
 
 l-liixbv, d., iIi'mi ii/lini. the jurisdiction of the Court, which in cases of 
 
 /'w Wcathcrlic. d. -In cases where the tort was limiteil to .'S-J(Mt. 'I'hi' dudgeof the 
 
 judge of tlic County Court refuses to amend his County Court i)ei'mittcil the defendant toameiid 
 
 iuiM\itcs there is no appeal. his counler-claim fiu' damages, so as to bring it 
 
 /''/ Higby, .1. -The al)])llc,ition was wrongly within tlic jut isdiction of the Couit, and gave 
 
 made, the evidence having Ikhmi rcjecicil at juilgirieiit in his favor for f^'liHt ami the other 
 
 the trial while \\h: application was to ha\e it items, in all for .■<-.'±.'.'J;i. less the amount found 
 
 added as evidence, which had lieen r<'cciveil. but to bs due plaintitt'. I'laintitl' appealed, 
 
 not eutercil on the minutes. //'/'/./»/• .lames .1., that the County Court 
 
 /'. ;• Siriilh, .1. No appeal would lii' iiithi^ .ludLfe « as oidy aut liori/cd to givi' t he ilcfcndant 
 
 iiisr. the bcuclit of his counter-claim to the extent of 
 
 /'' /■ 'rhonipsou. .1. An appeal would lie as the amount of ])laiiitilfs <daim. bet that having 
 
 the decision a|)pealed from was ImmiI on a allowed defendant more than that amount, thi' 
 
 matter of law. vi/., the i]ucsticu\ u hel her the ajipeal uni>t be allowed. 
 
 juilge had power to ameml his minutes after /'' '• McDonahl and l!itchic. ,1.1., that, after 
 
 appi'al taken on the merits. the tiling of a ))lea, objecting to the counter- 
 
 li'iiiiisi 1/ v. ('iiiiiiiii;lliiJiii, (1 11. .v. <:., "JO; claim as beyond the jurisdi'-tion of the Court, 
 
 t)('. b. T. , l.'ts. the ( ouuty ( 'ourt .ludgi' hail uo juri^dici juu to 
 amend it, by reducing it to an amount within 
 
 4. .tppeal papers Ketlirned to ('(tunly the jurisdiction of the Court, the County Court 
 
 Court for amendment Appeal papers sent .\ct, .">th 1!. s.. r. |(i.'>, s. 'J.'i. only permitting 
 
 back to the .ludgc^ of the County Court in order such aiurndtiicul to be made in the absence of a 
 
 to have the cci'tilieates amended by ruilinliiig plea to t he jurisdiction. 
 
 the rule for appeal among the papers certilied, /liihiy, C/-'ii//l,iini' . ~ H, ,*y. t;.,'J."iO; 
 
 the rule not having bci'ii certitieil by the judge. 7 ( '. b. T.. ."{47. 
 
 I'' r Weatherbe. .1. that the papers were 
 
 aliiady suiiiciently certitieil. ft. neroiidaiil rerusiiiju; to enter on his 
 
 Wiiiilii •'fi r V. iiiihl" . •_* I!, it (b. SS : defence bidi)W I'laintill allowed to amend 
 
 I C. I. 'I'., ."ib7. on a]>jieal New trial ordered -Grounds of 
 
 refusal of eost.s to defendant Suit by guar- 
 
 .■). On an appeal under (he LIrense .*e(, •li'^" of lunatic in his own name -Costs — 
 
 the Supreme Court will allow an amendment In an action by. and in the name of the guardian 
 
 to be made at the trial. of a limatic. for a ilcbt due the lunatic, the de- 
 
 'J'iii//(ir y. .1/a, •</('(//. "J Tiioni., 10. fcndanl did not go into his defeiice, contending 
 
 that the action was wrongly brought, and judg- 
 
 «. liail-pieee I'owerorCouH (o amend by "i^"* '" t'"' Comity Court was given for j.lain- 
 
 .allowing bail to justify -//.A/, that the objec- tiff. On a])peal, the Court allowed plainlilf to 
 
 lion to a bail-piece, that neither of the bail had amend: and defemlants contending that there 
 
 justilied in an amount ih)uble the amount of the "■>« '^ difeiice on the merits, a new trial was 
 
 verdict, could be cured by aniendmei .. which ordered, but without costs, lii.st, because the 
 
 the Court had iiower to grant. ""'"■ trial was an indulgence to defendant, as the 
 
 TniniiiiK v. niiliih.f Hiis l/njhf Co., Court might in such a case give judgment for 
 
 .'{ X. S. I)., 1,'i."). the )daintitV on the amended record; secondly. 
 
51 AMENDMENT. 52 
 
 liiM'iuisc, liMil till' ilfffinl.uit riitiifil oil his lie- tiTi'il. IK'fiMidMiit unvc nutii'i.' uf iiiDtioii "on 
 
 feiR'c ill llic iniirl ImIiiw. m new tii.il uniiM ii|i|)ciil fi-oiii tin' jiiil;.'iiii'iit "' of the .Iutl,L,'i', " iiml 
 
 piissilily liiiVf liicii KiiiiiTcil iiiiiUTf.-Miiy l)y lii> tliat jiiilj^iiicnt lit' eliti'i'iMl fur tliu ilcfi'iKliilit, (in 
 
 Kiirti -s. 1 hi' iriDuiii! that, u])iiii the thuliums, tlii' juilfiiiiiiit 
 
 S'liuiiii, V. I'artir. 1 l;. \- (;., -.".l-.'. j^ wroiiLT." I'l.iiiitill' ii]) tii thi' close of tlu' i\\^)^\l- 
 
 liirlit dill not move to set Msiih' tlie lilidiliu's, liut 
 
 10. lU'lay ill applying for A judirinent ,,|,t;iinfd leav.- to move to iimciid, so as to leave 
 
 liud I'eiii iiilered ii|, on veidirt: tliei" «a- ji,,. ,.,,urse open to hiiii, and he moved aeeofd- 
 
 liotliiiiL; to show that a icroid had l^em lih.d, j,,j^.^ | )efendant after the af.u'mneiit moved to 
 
 e\ee|itiii,i,' the faet that an ex.'eiition had oe^'ii ,.,|,„.,|,| hisiiolici' so as to eiiahle him to move 
 
 iss.ie.l. More , ha n t!iiil\ years afterward- a to set aside the verdict. T.oth ameiidmeiits were 
 
 rule /'/-; was ootaiiied for leave to tile a record ,.,11,, wed, there lieinjr no siu'iirise to either |)arty, 
 
 therein iiiair ),r<, iitur, in ,,ider that it might he ,„„] neither havingi'oiiii.lained of any siieh thiii^', 
 
 ])rodiieed as evidence in a iiendinu .iction ,,r driven any vaUd reason why such amendiiient,s 
 
 li.'lwcii the sons of t!ie oriLfiliiil |.:irtie. --tlie s||,,iild n,,t hfalhiw.d. The ( 'oiirt -et aside l.otli 
 
 title to land l.eiic in .(ic-.li.iii. I'lic rule was vcr.lict aii.l lin.lin^'s at the .same time at which 
 
 <lis,'iiar.t;.'d .>n th.' -r.vnn.l ..f the a|)|ili.'ation they gave jii.lL'nieiit allowing the amendments, 
 lieiic' mid.' t.... V.Wv. aii.l hy a party in aiioilier Cr. l./liln,, v. S/,;,iii' i/. 7 I' >\- C, HCJ ; 
 
 suit. 7 c. !.. T.. 14,-.. 
 
 /,'. ;./ V. s„i!'/i. I x. .-<. i).. -jii. 
 ^, , , ,. , ,. l.». \(tn-Siiit VariaiuT Ju<l!!;<>'s Minutes 
 
 H. Unm-iW Vmiirt for plailltltl -Ono ,oncl„siv,. as to what took ,>laee at trial Re- 
 
 issue foun.l for delendant \ erdmt s.a aside ^.^^^^^^j „f j„a..e to ameiul - I'laitititf siie.l on a 
 
 — D.jfoct not amendable 1 h.' iiirv t..uii.l a , ,' .,., , . ., .| 
 
 ■ • iiioii.v i...n.l. I hiM .' uasa \ariiinee between the 
 
 general vei-.liet fur tilaintill': hut. in answer t.) , a , ,' . , , .• .i i i ^- *.; 
 
 *■ ' .h'.darati.iii iiii.l the jiro..!, the ileelaratlon .setting 
 
 (illesti.in put L. th.'iii li\- the ju.li;'.'. t.iiind .ili.' , i .• i j-.- e 
 
 • ' . . - out till- wor.ls .)t till- .•on. nil. Ill iipim port. irnian.'e 
 
 of till' i-aii's raised l.\ th.' iiU a.liiiL's tor the ^ . ■ i .. i i . i ■ i • . i r 
 
 ' .if « Inch the lion. 1 was 1. 1 liecoiiie vol. 1 instead ot 
 
 defeii.lan'. //•/./. ih.n thi' L.'.'n.-ral vcr.lict for , . ,■ . ^ r ^i i i i »i i ■ 
 
 th.> .)lilii,'at.>rv l)art .if the li.iii.l. aii.l the ])lain- 
 lilaintilV must lie set aside. /'■ /• .lam.'s .!.. i hat .... ' • i -.i i » .. i .i 
 
 I nil was 11. Ill-suite. 1 with a rule to set asi.h> the 
 
 it c.illl.l lie amen. led. ,, , .. ^ i r . i ■ .ii- 
 
 iion-siiit. (hi till' Inst .lav of term plaintilt 
 
 .ihtain.'.l a rule ii)-:i t.ir an amen.lmeiit <it the 
 
 ili'.dar.iti.m. ami that a n.-w trial he graiite.l, 
 
 !•>. (irtMinds of appeal lleiay in moving ,,_,^.^,„^^, „„, .,,„,,„. „„ „,, ,,ial ha.l ref,is..,l to 
 
 -Leave to amend refused I'laintill app..,,h.,l ^,^,.^__^ ^,^^, ,„„„,„,„„.„, ^, the argu.n.M.t. plain- 
 
 from the .leeision ..f the Coiiiilx ( ourt .lii.L'i' .,,. i .. r i .i • ..i .. u\ i ... t 
 
 till niov.'.l to disehai'L'e this rule with leave t.) 
 
 Dee. .'{rd, |.S7!I. .iii t he 'jroiin.l thr.t it was ii iain-t ,. .• • •, . •. i , i i- .i 
 
 move tor another similar t.i it. Imt a. I. ling the 
 
 law an. I evidcii.c. On !).■.■. 14. ISMl. he ap- , i- .i ,. •• -ri .c i . :. 
 
 ' w. lids •• .111 rea.liin: th.' miniites. 1 lie alli.lavit 
 
 lilii'.l tor li'av.' t.i amen. I the Lrr.iiiii.ls so as to .. , . .,,.. i » . i .i » .i i i i i 
 
 ' . .,t plaintill s .■.iiinsel state.l that theJn.lgehad 
 
 rai^.' the .ju.'st i. Ill ot . I. ■t.'ii. hint s iiL.'ht 1.1 remove .■ . i . • » t.i i ; 
 
 ' i-.'tusi.l leax'e t.i insert, as one ot the l'I'iuiii.Is m 
 
 certain articles as lixtur.'s. 'I'he aiii.n.lm.ait , i .. . i i . i i i e i 
 
 th.' rule, th.it the am.li.lm.nl had lieeii retiise.l. 
 
 was refuseil. ,,., . . r . i 
 
 I his was contra. Iii'te.l. 
 l./iii/iuir V. I'titilnr. '1 It. ,V- (I.. l,-i,-|. ij I I 1 . ^1 1 .1 11 1 
 
 //./'/. that the rule iiiyi must he dis.-hargc.l, 
 
 as ihc .Iu.Il'.'s i.iiiiiites were e.iii.-hlsive as to 
 
 i;{. .Iiidicial diserction as l.KilldWiiis „,,^„ ,„„,^ ,,,,,,„ ,„ „,„ ,,i,K „ii,l the phiimitr 
 
 The prni.apl.. ..'overnnig th.. .■xercise ot .|mliciai |^,^^, ,^.^ ,,^,|^,^,,,^. ,„„h., ,li.. statute f.ir th.. allcg,,! 
 
 disereti'iii in r.'lalioli to .lUouiiiu' amen.liueiils »• i . . i ,i . .i .i :. .;ir ,...., 
 
 r.tiisal t.i grant a rule; that t hi' jilaint ill wa.s 
 
 is. n.it to permit tli.'m to ln' ma.h' u h.'ii th.' , ■ i , * * ,i ..;.,,„, 
 
 I liroli.'ilv iKiii-siiiteil .111 ac.'.iiint ot the \ arian.'e, 
 
 ett'tMjt will lie t'l suhstitiite a .jiU'sti.iii for trial i.. '. .i ■. ii .i , : i <• ...i, . 
 
 ' ami that th.' 11. Ill -sill I ..111 1. 1 li.it lie set asi.le t.ir Hie 
 
 Which is snhstantially .lillcr-'iit fr.iiii that wlii.li ,„,,^,,,,| ,,,,,.„^^^, „,. ,|,„.,,„,,,, ,„^,,,„.t j,„, ,„,„,,„,. 
 
 the pirti.'s cam.' prcpaivd l.i try. ^^_^,i^,_ ^.^.^.,_ ,,,„„„i„j, ,,h,intitfs aee.amt of the 
 
 ' _ matter to lie corre.t. 
 
 ~ "■ ' ' lldH/iix lliinkiiiii ('('1)1/111111/ v. Warriill <> ci., 
 
 14. Motion to set aside .MidKinent .Vinend- . ^ (■'■ 
 
 ed HO as to unahle to set aside verdict instead 
 
 -Other side allowed after argument to move 1(J, On motion for SfVi Trial 'i'he plain- 
 to set aside tindiin^s Tile jury f.iun.l .111 all the lili's pr.ic.' lings will n.it In' ameii.le.l .in an 
 issues for defen.lant uli.reu|i.iu llu' diidge gave argument of a rule for a new trial. 
 a verdict for tlu' plamtill'. ii.i ju.lgm.'iit was en- KHi r v. Co/i/i, .lames, 'Mi. 
 
53 AMENDMENT. 54 
 
 II. row ITS (If Court to protect Interest of 20. Supplemental bill allowed, to recover 
 
 tliiiil partie.s— 'I'lio statcim'iil of (.'liiiin priiyiMl money paid under protest to avoid the sale of 
 
 tiiiit <iitiiin nioiH'V nIhiuM I>i' paid to tlu^ rirtou lands, after refusal of injunction to prevent 
 
 r.aiik. liiit the ju(lL.'iiHMit as ciitcriMl autlioii/i'd sale -'riif tiriii (if l!o>,'cis iV: Sou made a deed of 
 
 the iilaiiitilVs to I'liforcc iiayini'iit to tliciiiselves, lauds to a tfustcc for tlic bciiclit of creditois. 
 
 it a|)pvariiii.' tliat an aiiK'iidincnt to tliat ell'tct 'i'iiref or four days afterwards defendants oli- 
 
 liail iM'i-n ]ii'riMitled liy tlie learned jmlge liefori' tinned a jinlf,'nu'nt agiunst the firm, whieii tliey 
 
 wlioiii 1 lie case was tried. reinrclcd to liind lands. 'I'iie next, or tlie day 
 
 ///'/, th.it tlie amendment so allowi'd enred followin;,' tiiat , an attailiment issued un<ler the 
 
 tl lijirtion, lint, if it ajipeaied that tlu' inter- Insolvent Act of IST'i. liy virtue of wliieli l)laiu- 
 
 esi of the liank. or of other parties interested ill tilt's I lecame assignees of the tirin, and as such 
 
 the di-p"sition of the fund, reipiired llie inter- assignees took a conveyance of the lands in 
 
 pii-itinii of liie court, tlic court hail tlie (|Ue~tion froni tlie trustee under tiie lirst deed. 
 
 i)owcr to inaUe such order in reference tlu'reto The defendants lieing aiiout to sell the lands 
 
 as the rights of parties or the justice of the case under their judgment, plaiiitiiVs applied to the 
 
 i'c|Mired, without necessitating a new trial, if Court for an injunetion to restrain them from so 
 
 not rc.|uircd liy the facts of the case. doing, hut the injunction was I'efuseil on the 
 
 Kilrli'iii ,1 III. V. Mrl)i,,iiil(l it III., ground that the title to the lands was in )ilain- 
 
 •J(» \. .S. 1!., (S K. A: (I.). \S\\\ tilt's under the eonveyani'es and that defendants 
 
 S C. L. 'I'., .'IMO. aci|uired no lien umler their judgnu'Ut. 
 
 l)cfendants having ag.iin ])ioceeded to sell, 
 plaint ill's ]iaid theamomit of the jmlgment under 
 
 IS. KelePence I).V consent XO power of protest and apjilied to a. Judge for leave to tile 
 
 amcndiuent reserved in Error in award -Re- : u sup|)lemental lull praying that defendants ho 
 
 ferenee back for amendment - Wlieii an decreed to return the money so jiaid. 
 
 arhitrator makes a mistake in the heading of an //lA/, on ai)|)eal from ai der allowing the 
 
 award in the Christ iaii name of one of the amendment asked for, 
 
 jiart ics. the award will he referi'ed hack to him for /', ,• Wcathcrhe, .1 . , that theamendment should 
 
 lUiirinhiiciil. although llu' time for his making In- allowed, as the most direct metlioil of testing 
 
 tlie award has e\]iireil, and tiie reference was the sole ipiestion hetween the parties and put- 
 
 hy consent of parties, and although no ])ower ting an eml to litigation. 
 
 iif aiiiciHlincnt ^^as reserved in the rule of refer- l>,r McDonald, C. J,, that the relief prayed 
 
 eii' c. for in the supi)lemental hill was rendered iieces- 
 
 Aiiiii'<<t 1,1. '-. Co„l.-,l III., •_> Old., Ki.'i. ^.„., ,,.^. ^.i,.,.,„„stances arising out of suhse.pient 
 
 i dealings with the suhjeet matter of the original 
 
 suit, and as the suppleiTiental hill a])peared to 
 
 1!». Rule absolute for In first Instance ^ ,„, ,„„,,,ss„rv to plae.. the parties properly before 
 
 Taken after new trial ordered -Motion to re- „,^, ^.„,„,j •„„, ,„.,,,.,. ,,,,,„.,,,,,, ,■,,„„ ^-as rightly 
 
 seind rule discharged I 'has were added hy ' ,„.„l^, 
 
 ilct'ciidanl just as the cause was going to trial in />, ,. Hitchie, .J., the aniendnieiit should he 
 ISTli. to which |>laiiititl'tlierefore hail no oiiportn- ,|,.„1^. as clearly in furtherance of the original 
 iiily to leply. The veidict \\ as for |)laintitt', and i^ause of action. 
 
 a rule to set it aside was dischaiged in 1S77. An Mcl)onald, d., (//«-»/(//;/. on tlie ground that 
 appeal was taken to thi' .Supreme Court of all the (|Uestions, upon which the ai.plication to 
 
 {'aiiaila. the residt of which was that a new 
 
 tile the siipplenienlal stalenient proposed de- 
 
 trrd was granted in Isy.S on the ground of im- ,„.|i,led. had lieeii fully adjudicated 
 
 proper rejection of evidence and misdirection. j/,„_ ,i,at since the payment of the money 
 
 After this decision was given ])laintiir ot.tained .i.efendants had signed a .satisfaction piece and 
 
 an iinler alisoliite in the lirst instaui'C for leave theretiv released their lien. 
 
 teaiiieiiil ills ileclaration and reply and demur ./,,/,„.., f al. v. liiirbotn- il nl.,- \\. ,^-(;., til ; 
 
 to the addeil pUa, on iiaymeiit of costs, if any. , 7 C. I^. 1.. IT-. 
 
 I'l'feiiilint asked for a rule to rescind lliis rule 
 
 "11 the grounds, am<mg others, that the apjilica- 21. Amendment of^rounds of appeal from 
 
 tiiiii was too late, tiiat it slioidd have heen a nde Probate Court Adding new ground on argu- 
 
 '"-' ill the tirst instance, and that the amount of ment -On argument of an appeal from a decree 
 
 ousts should have been settled in the rule. The of the Court of Probate, the Suiu-eme Court w ill 
 
 rule to rescind was refii.sed, and the appeal allow an amendment, adding a new ground of 
 
 fnuii such lefii.sal was disnussed with costs. appeal to those already taken, where the ground 
 
 Sou/Ill r V. \\'iilliti-i , '1 \\. k (!., S(). sought to be added is not merely a formal one ; 
 
65 
 
 AMERICAN WAR. 
 
 56 
 
 liut will j,'ivo the (ip])ositu si<li! tiiiiu to CDiisider 
 wln'thi'i- they will go on with the argiinient. 
 
 Ill re K^tati of liolttoii, '2 'I'limn., .'<. 
 
 AMEKCEMKNT OF COl'MFES. 
 
 1. E\|iciisc8 of militia railed out to (tiicll 
 
 riot — NciihiU' thi' Dominion Ai^ts of lS(i,S, c. 40, 
 and of 1S73. c. 4(), nor tth H. S., c. •_'], s. .")4. .>ni- 
 ])owcr tin- Supronio Court to iiiiu'ri!u n county 
 for ihaigi's incurred in calling out th(' active 
 inilitiii under the Dominion Act of 1S7."{, c. 4ti. 
 to (luell a riot. 
 
 Ill n Ann iy( nil lit ofCdj"' /in /mi Co., 
 •_> K. ^V ('.. 41(». 
 
 2. ( Icrii of License Action for illegal 
 
 s?\e of liquor -Conviction ([Uashed for want 
 of jurisdiction— Amercement to compen.sate 
 clerk refused— 4th R. S., c. 75, sec. 28 — 
 of. 5th R. S.. c. 75. .s. 40 I'laintill'. as .tcrk of 
 license for otu' of the districts of the County of 
 Cundicrlancl, lirougiit an action before two mag- 
 istrales to receive a |)cnaity for liie illegal sale of 
 intoxicating li(|Uors. Tiie niagistiates i-endered 
 ii decision in ])laintitl"sfavoi', wldeii was(|uaslied, 
 in the .'^uiireme Comt, where it was lirouglit liy 
 I-' rlinrnri, foi' want of jurisdiction, on tiu' 
 ground tliat one of tlie magistrates was i-clated 
 to tile ))laiMtifr. 'I'iu' Muuii'lpal Council having 
 refused to allow plaintill' his costs, apiilication 
 was made under 4th Rev. .Slats., c. 7">, st'c. 'J.S. 
 to ainiMce the county. 
 
 //'/</, llial t lure lieing no jurisdiction in the 
 justices to issui' process or to try the ca\ise, 
 ]»laintill' had acijuireil no right under the stat- 
 utes to 111' conijiensalcd for his outlay. 
 
 .Smitli and 'riiompsun, .I-I., ili-'-" ii'iii;i. 
 
 .hirhsiiii V. 77(1 .\f iiiiiri/iii/ili/ at' ( 'iillllii r/(iiii/, 
 
 ti K. .V (i., lilt : 
 (iC. L. T.,44-J. 
 
 AMERKAV WAK. 
 Declaration «»r war by the Initcd Stales 
 
 Effect of .seizure of vessel for infraction of cuh 
 toins law before declaration — Cannot after be 
 detained as enemy's property 'I'he declaration 
 of war by the United .States did not place the 
 two countries in a eom|)h^te state fif war till the 
 ordei' for rejirisals l)y the Hritisli government. 
 Onler for reprisals, 1.1th October, 18l'2. An 
 American vessel, together with her cargo, was 
 
 seized in the ])ort of llalif.ix by the colknlor of 
 customs upon tiie 7th .hiiie, lSl'2, for an impor- 
 tation into Xova Scotia eonti'ary to law. On 
 the I'dtli .lime, ISl'J, the government of the 
 United States declared war against (ireat 
 Britain. The owners of the ship and cargo 
 claimed their lespective ))ropcrlies. h w.is 
 contended at the hearing, which took place on 
 the .'?lst July, l.Sl'i, that the claimants, who 
 were American citizens, were, by the declara 
 tion of war, become eiieinies, and the ship and 
 cargo enemy's piojierty ; that, therefore, the 
 jjarties were discpialitied from appearing in 
 a Uritish court of justice, and that the col- 
 lector was entitled to retain the sliij) and cargo, 
 of which he had the haiin liii possession, liy the 
 title of occupancy, as belonging to an alien 
 enemy. 
 
 II' III. that until the King, either by express 
 declaration, or by some otln^r manifestation of 
 his hostile intentions, has ])laced his doniiniou 
 in a state of warfare, the state of mutual ami 
 reciprocal hostilities between any country and 
 the liritisli dominions cannot legally com- 
 nu'nce. When such manifestation is made. ,iud 
 not before, the complete legal state of hostilit' • 
 exists with all its conseipiences, and since ; h 
 moment a man becomes an enemy all his ante- 
 cedent rights ,n-e annihilated, it must of c-ourse 
 operate upon all prece(liiig transactions. 
 
 The subjects of Anu'rica cannot now (."ilst 
 .luly. ISl'Ji be eonsidereil as alien enemies to 
 every pur)icisc of law ; it cannot be said tiial 
 I hey ari' disi|ualilied from appear-ingin a liritisli 
 <'iiiul of justice, oi- that their propci'ty is liahle 
 to be treated as ci'eniy's proj)erty without a 
 sanction froui the Uritish goveriLinent. Tiny 
 may possibly lie declareil to be enemies in 
 fului'e. but their ))resent situation isambiguons. 
 If the whole of this case turned upon this pniiit 
 the ciaii'l would direct that it shmdd staml over 
 till His Miijesty's instructions hail been received 
 from Kngland. 
 
 The ship entered the port and wa.s seized 
 before the cleilaration of Wiir by the Uldted 
 .States, the siibseiinent detention was involun- 
 tary on the part of the owneis. Therefore, if 
 the seizure ])rove to have been made without 
 reason the j)arties would be entitled to have 
 their property restored in the same state in 
 which it was at tin' time of seizure. If the 
 seizure was imp, opcrly maile the owners by such 
 tortious po.ssession cannot be injured in their 
 riglits. 
 
 An alien enemy can appear toeliim property, 
 where the ])roperty, as in this case, is not liahle 
 as enemy's property. 
 
 Th, Dart, Stewart, .'lOl. 
 
57 
 
 APPEAL. 
 
 08 
 
 ANFMAIi. 
 I. LiabilKy or owner For injuries done bj 
 
 — Scienter In :m ai'timi liiim;,'lii in rcrdver 
 (laiiia^'es f<ir injuries dciue liy defemlaiit's dn^' in 
 liitiiig anil wiiriying plnint ill's sluf]) the only 
 eviileiiee Id prove «•/(///</• was of ailiiiisNions said 
 to JKiM' lieen made liy clefendaiit some years pre- 
 viously, and thai on one (jeeasioii foui' or five 
 years previously defendant's do;,' had l.'t'en sctii 
 Willi another doi,' chasinj; or followiny sheep. 
 
 'I'ln' learned ( '■mnty ( 'on rt .ludge lut'ore u hom 
 the ia»e was liinl having dismissed the aetion 
 (in the gi'oHMii thai tlu're was not siillieieiu ivi- 
 ilenee of klumludge on the part of the defendant. 
 
 Il'lil. thai there was no ground for disturliing 
 his liniling. 
 
 M'K.,r.;, v. Ilhi4:iiinr< , 7 K. kr,., L'd.'i ; 
 7 C. L. T., •_'7n. 
 
 '.'. I.iabilit) of owner Tor injiirit'x by 
 
 vicious animiil - Scienter — I . an action to 
 reeovei- damages for injuries iiillicted upon a 
 mare o\\ ned hy ]»laiiitiir, liy defendant's hull, 
 which resulleil in her death, the evidence toeon- 
 neet the liull with the injuries inflicted u|)on 
 tlie mare was that he was running at large in 
 tile neightiorhood, and was of a vicious di|)osi- 
 tinn.and shortly after the mare was injured had 
 IiIiiihI on one (if his horns. Theie was al.so evi- 
 dence that the defendant had prior knowledge 
 of the character of the hull. 
 
 The Judge of the County Court hefore whom 
 the ease was tried having given judgment for 
 plaiiilitl' for llie amount claimed the Court re- 
 fu.scd to distnrli the linding. 
 Aniol'lv. Dl<iij<luii, •_'(» X. ,S. R., (8 R. & (i.), :W,i ; 
 
 8C. L. T., 448. , 
 
 I. 
 
 11. 
 
 HI. 
 
 IV. 
 
 V. 
 
 VI. 
 
 Vll. 
 
 VIII. 
 
 IX. 
 
 X. 
 
 Al'PE.41- 
 
 I ROM ASSES.SMKNT, .58. 
 
 FROM CITY COURT, HALIFAX, 58. 
 
 F liO.M C0MMI8SI0XKR OF MINES, 
 
 -.0. 
 
 FROM COMMLSSIOXKRS IN INDI- 
 OKNT DERTOR MATTERS, 59. 
 
 FROM COUNTY COURT, 60, 
 
 FROM EQUITY COURT, 70. 
 
 FROM JUSTICES OF THE PEACE, 
 
 FROM PROBATE COURT, 80. 
 
 TO THE PRIVY COUNCIL, 81. 
 
 TO THE SUPREME COURT OF 
 CANADA, 81. 
 
 XI. MI.SCELLANEOUS CASES, 91. 
 
 1. FRdM AS.SKSSMENT. 
 1. Apiu'iil from where reiallvel) too high 
 
 — Appeal from other asses.sinents - Rule lo 
 ((Hash an assessment of defendant's properly 
 diseliarged with costs where defendant appealeil 
 against his assessment iind showed that il was 
 excessive relatively to certain others named. 
 The proper remedy in such case, under tlu^ 
 liy-laws of the town of Windsor, is to ap|)eal 
 against the other assessments as too low. 
 
 ir/;/;///;.- v. '/'(urii (if W'titdsur, ,'{ R. &. (i., '27>W. 
 
 2. A|)peal to County Court from Munici- 
 
 cipal Council Power of County Court on 
 appeal as to di He rent items of assessment than 
 those appealed from— By the Revised .Statutes 
 (4th ."series, 1.S74) an appeal from an assessment 
 was given to the Court of .Sessions. IulS7t> it 
 was enacted that any ])arty aggi ieved hy the 
 decision of the .Sessions coidd a]i|)eal to the 
 County or Sui)reme Court. In l,S7!) the power.s 
 and authorities of the .Sessions were "given to 
 the Municipal (ouneils." 
 
 Ill III. that the power given to the Council to 
 hear a|)peals from the assessment under this 
 statute was sulijeot to the condition that an 
 appeal should li<^ to the County Court in the 
 same manner as formerly from a decision of the 
 Sessions. The appellant appealed to the County 
 Court against an assessment of .S.'")(KM(, on "ships 
 in other districts " which had lieeii built hut not 
 registered in the County in which they were 
 assessed and the County Court Judge on the 
 authority of Kinny v. City of Halifax, decided 
 that they were not liable, but as it was shown 
 on the trial of the appeal that the appellant had 
 a ship on the stocks partially built, he amended 
 the assessment to cover half the value of the 
 said ship. 
 
 Held, that the judge wa. correct in his judg- 
 ment as to the non-liability for shipping out of 
 the county but that he could not on the trial of 
 that apj)eal c(msider a diH'erent item of assess- 
 ment, not submitted to the Court at all, as to 
 the ship on the stocks, and the appeal must 
 therefore be allowed. 
 
 In re Asnesmnent of James Crowe, 3 R. ifc G., 301 ; 
 
 2C. L. T.,607. 
 
 II. FROM CITY COURT, HALIFAX. 
 
 1. Default in City €ourt— Appeal— Cer- 
 tiorari of summary cause — Supreme Court 
 powerless — Defendant, in a cause in the City 
 Court, filed and served his grounds of defence, 
 unsigned. The magistrate, after plaintiil' had 
 
69 
 
 APPEAL. 
 
 60 
 
 been sworn, dccidi'il tliiit tlio gnmncls wcif in- 
 siitliciciit, and cliicincd jiidj;niiMit liy dffiiiilt In 
 1)0 I'ntcrcd, IVftndiint liriiiij;lit the CiUise up 
 by writ of rv rtiariiri. 
 
 //</(/, tliat an a])|)cal lay fi'oni the jndmnont 
 below, and, furtlni-, that notliinj; lould be done 
 with the eause liniler the (•< /7/o;'f()'/ as the niattci- 
 was ii suiniuiiry one, and the sunnnary jmisdie- 
 tion of the Sii|)renie Court liad lieen taken away. 
 J:'a>i>try. ('(ir-i/, I K. it (1., 111. 
 
 III.-^KRO.M COMMISSIONKR OF .MIXK.S. 
 
 1. Commissioner of Mines - Affidavit for 
 
 appeal- W. M. made application for a lease of 
 certain gold mining areas, which was opposed, 
 and a contestation took place before the Com- 
 missioner of Mines as to the rights of the con- 
 tending apjilicants. Pending the contest and 
 before the decision, W. II. died. Tiie decision 
 being against the deceased, his widow, who was 
 a))pointed soli,' executrix, gave notice under the 
 statute of her intention to ajijieal, and made an 
 afiidavit end)odying the requiiemeuts of the | 
 statute, and tiled the bond recpiireil. The 
 affidavit was made in Toronto before a Notary 
 Public for the pi'ovince of C)ntario. 
 
 Ill III, tiiat the atiidavit was not made in 
 accoi'dance with the re(|uirements of the statute, I 
 and that the appeal nmst lie set aside for irregu- 
 larity, I 
 
 Construction of r)th R. 8., c. 107, s. .">. 
 
 lit llnlliii, •_'() X. .S. R., (s R. & <;.), ];)(( ; 
 .SC. L. T., ;i7(). 
 
 2. Appeal from Commissioner of Mines 
 
 — Im])roper rejection of evidence- ( )ne of sev- 
 eral a])plicants for a mining area pi'oduced evi- 
 dence at the hearing before the Connnissiouer of 
 Mines to prove that he was tiu' lii'st aj)]ilicant. 
 In the course of the investigation a witness 
 against the appellant was exauuncd, and while \ 
 he was lieing cross-examined on a suliject of im- 
 port.mce to the in(piiry, his cros:-.-examination , 
 was stoj)|ied by the Conuuissioner. 
 
 Ill Id., that this was sutlieient ground on which 
 to sustain the appeal, and that thea|)pellant was 
 a party aggrieved ; the ease ditiering from the 
 case, Iv n Sjh llmtui, in that tlu're tlic apjilica- 
 tions were simultaneous. 
 
 //( re A/i/i'<tl SI. i,hiii Sin,/, :>, R. Si (i., 397. 
 
 IV. —FROM COMMISSIONERS IN IXDI- 
 (iHNT DHIvroR MATTKRS. 
 
 1. Imlij^cnt Deotor process -Appeal from 
 
 decision of Commissiouers where no County 
 
 Court Judge in the County lies to tiie Ses- 
 sions -An ajipeal from a decision of Connuis- 
 sioners refusing to discharge an indigent delator 
 was taken to tin; Court of .Sessions, on I lie 
 ground that there was !no County I'ourt Judge 
 in the County where the debtor was I'onlined. 
 The justices having refused to hear the appi'id, 
 on the ground that they had no jmisdirtion, 
 anil an order having been ap|)lied for to compel 
 them to do so. 
 
 Ill III. that the aiijicd was properly taken. 
 
 Construction of cliaptei' llS, ."ilh R. .si., s. •_'7. 
 Armiiroiiii v. 'I'ril'iiii/, 7 H. i*^ <■•, !!•. 
 
 '2. Indigent ])el)t(»r Appeal from Com- 
 missioners—Appeal Court not properly or- 
 ganized — A debtf)r was imjirisoned on process 
 issued out of the County ( ourt. and was brought 
 before ( 'omniissioni'i's. •.» ho ordered his discharge. 
 An ap))eal was taken to a Couit organized under 
 the County Court Act of ISSU, chajitei- L', section 
 111, but the Older, though made by the Clerk of 
 the County Court, was signed by him as I'lo- 
 thonotaiy. Tlie j)roeeediugs were brought up 
 by cf-rliorari iuu\ a ride taken to c|uash the '•(*•- 
 h'orar!, on the ground, among othei's. that, as 
 the spi^'ial Coin-t had not been regulai'ly organ- 
 ized, it had no jurisdiction, and c ;7/i//y(;-/ would 
 not lie. 
 
 Ill III, that the n r/iomri must be ipiashed. 
 
 Fliii'lur V. Chi^lii.liii. W I!. & (;., I ; 
 •_'C. L. T.. (iuo. 
 
 Rut si-e CERTIORARI. 
 
 3. Indigent Debtor Appeal from Com- 
 missioners —Appeal Court Defeudaut was im- 
 pi'i.soned in the County Jail under ])iocess issued 
 out of the County Court, ami detained under an 
 order of Commissioners for tlie relief of Insolvent 
 |)elitors. An ap])lieation was made to the .'Su- 
 preme Court /// liaiiro for a summons to have 
 the jirisoner brought U]) by way of appeal. 
 
 Ill III, that tiie Court iiad no jui'isdiction to 
 
 hear the cause, not having uu't wiliiin iru iLiys 
 
 from thedate of theorder from whii'h tlie a]ipeal 
 
 was sought. 
 
 Broolcjiilil v. Sijmi's, 'A R.& (;., 17 ; 
 
 L'C. L. T., tiOl. 
 
 v.— FROM COUN'l'V COURT. 
 1. Amount under $40 — Appealable 
 
 amount — How made up — l,>itairi, whether 
 under the County Court Amemlment Act <jf 
 1877, c. (), s. '2.'), giving an appeal where tiu' 
 judgment is over .'?4(), it is sutlieient tiiat there 
 should be a judgment for costs to that amount. 
 
 Aiiiiaud V. Tilt Mtrchaul'.i Bank, 3 K. &C., 329. 
 
61 APPEAL. 02 
 
 •2. Power of .linlge of Coiiiily Coiirl (o ii|>"m ih.' .•vid.iuc >.„ ^nt up. th.' |.l;.iiiiiir wi.s 
 
 grant appeal— Acts I.STM, c,'. !), ». U. intitliil tn luiovii' iigain.-t llic ilflVnd.mt. 
 
 TIh' (iiiiMly (unit .liidm' '.''''"'''il i"i iil'pi'il H'l(/. tliiit im ca.-c liail lifiii .•-liUccl t'ni' tlii' 
 
 iiikKt sfctimi 14 nf iliii|itcr il. Arts of |n7>>. in a npiijidii i,t llic Coiiil. 
 
 fiuisi' migiiially Kinii^'lit in tiie ina;.'istialu's li' linnii \. //i niiiiiin. •2U S. S. W., 
 
 court. 'I'll!' apiical was taken in .May, ISTM. is I!. ^;(;.l, (is. 
 
 .siilisc(|inntly to tlic sl.ilulc lit that year, c'nali- 
 
 lin« the CnMlity (■.mrt .lutlj.'.'> to ^'lant .appeals |i. Appeal illlOWCd, l)llt J II (I K III C lit for 
 
 in all cases. plaintill, ii))pellaut. tor his claiiii lelu.-ied 
 
 J/i/il, tiiat the .liiilge hail jinwer to (.'lanl the i n all aet ion on tile lonMiinn loiiiiis. tlie ('lainty 
 
 njiiieal. < imrt jnilj.i'e noiisiiiteil the plaiiilill'oii the groiiml 
 
 'riiiiiiKiA V. /ill//, ■_' I!. \ (;., l:!.i. (||;,( items for iiitoxiealin^' lJi|Uors in i|iiaiililies 
 
 le>s tiaiii one jialjon Were III plaintill s claim, 
 
 .. „ , . , .,..,., 4.1 tlioiiL'h not inelmleil in the aeeount Mieil for. 
 
 .'{. Kiilo iiiiisl show that it Is granted ill ,,, ., . , , , ,, , i in 
 
 ..,-,, 7,1 riaintill. on the apiieal. claiiiH'il that lie slioiilil 
 
 diticretion ot Jiiat;e In a iau>e umler >\i) tin- ' •. . 
 
 ,, , , , ... , have iiiilt.'ineiil, liavinL' proved Ins |)ait:cnlars at 
 
 ( oiintv ( oiiit Jnik'ti giiiiiteil a iiile lor aiipeul , . , , , ,. <• , ■ i . i 
 
 , •' ,, r ,. , 1 the trial, lint the (ouit refn.seil It. anil t.'raiite(l 
 
 in the followinL' torin : "(In iieariiiL' read, etc , , ,, ■ i i 
 
 , , , , . ,! , , siiiiplv I he Usual oriler allow 111'' the alipeal. 
 
 anil on nicitlon, 1 ilo onler that .A. I., have leave ' ■ ,, ,, ' .. i, > , . o..- 
 
 , . , , , ., Mcdoiraii V. Uiilii'ii, A H. A: (i., 2()(). 
 
 to appe.'il, and an ajipeal is liereliy ^'laiiteil iroiii 
 
 mv decision, etc., to the ."supreine Conrt on the 
 
 following grounds. ■■ Three .roun.ls were..., a,e,l, '• ««"<> Misrcdtal Of JlUlgllU'llt n - 
 
 ^, ,. , , . . , , ,., .1 . I'l.iinlili sued in the rounl\- (oiiit mi a Imil- 
 
 tlie Inst lieing in general terms, the other two 
 
 . .. ,. ..' ., ^ .1 1 • »• r 1 hond 'd\eli hv the three det'eiirlalits, who 
 
 pointing distinctlv to the olijections relied on. "^ • 
 
 ,,,,,,. 1 ' ^. II *■ r '1 o t iv-w pleaded and liroved that the execution had 
 
 lliln, that under .^ec. II. ot I hap. it, ot 1S,,S, ' ' . ,. , . 
 
 ,, 1 1 • ■ I _.o> 1 II lieen returned hefore the exiiiratimi of the sixty 
 
 the ap])eal, lieliig m a cause under >W, should ■ ■' 
 
 , -^ c ^\ ^ ■.. » 1 ■ ti 1- ilav>. within which it was made retuinaole. 
 
 show on Its face that it was granted in the dis- 
 
 f ., , , 1 . t „i;, , 'I'lie Connl V Court .ludgi! held that this was a 
 
 cretioii ot the .liiilge and not as an ordinarv ■ '^ 
 
 , 1 .1 . .1 if 1 . ,i" mere irregularitv. not toiudiiiig the merits, and 
 
 ap])eal, and that the rule tor ajipeal was iiisiilii- r- ; • n 
 
 . , could not lie taken adv.intage of hv lilea, and 
 elellt. 1 "i ■ 1 
 
 Mrh'iraii V. Oiitniiiu .S II. i\: (1., •_>(»!). he gave judgment against the three deteiidaiits. 
 
 l)efilldalils ajipealeil. and ill tlleapjieal Imild 
 recited the judgliieiit as a judgment against two 
 
 4. Amount under ^40 (ase insuflleient- of the defendants. 
 
 ly stated-Sent back for amendment In a //, /r/. tliai the ajipeal was irregular, and that 
 
 case a|)pealed from the County Court, where h iiintioii was properly made in this Court inset 
 
 the anioniit in dispute was less than ••-•4(t, no jt ;i.sid,., tiiniigh the papers had heeii certihed 
 
 case was stated for the opinion of the Court, as .,,„i ,|„. l,,,,,,! aiiiuoved hy the County Court 
 
 re(|uireil liy Tttli It. .'^., c. ID.'), s. !)(i. Itajipeared .Judge. 
 
 that an application was made to the .Judge Wdt.-iini v, ILmil. W P«. & (■., I.'il, 
 
 lielow to amend the statement of tiie case, Init 
 
 that he refused to do .so, l.eing of opinion that ' j^^ ,j^,„„ „„ .,|,j,^..j, __ ,„suftlcient XCW 
 
 the ease was .sufficient a. It st I. ,^^^^^j ^^^^^^^^^ ^^ ,^^ tiled - The hoiid fur an 
 
 IhhL III)- Smith and Ritchii', .1.1., that the i . i , i . ,; . loo t ,\ i- ,. 
 
 ' ' , ajipeal taUeii under section KKl of the I ouiity 
 
 ca.se .should he sent hack, in order that a proijer ,. . ,. r i .■ , \ . ... ,;, i,. , 
 
 ,' ' t ourt ( oiisolidatioii Act, was given merely to 
 
 ease iniL'ht he made ui), to lie |>reseiited for the ,, ... i i . , i .i 
 
 '^ . 1'''^' 'he costs ot ajijieal, and not to resjioiid the 
 
 oonsideration of the Court. . ", . , . . i i 
 
 luduinent on ajijieal, s<i as to co\ er costs lielow. 
 
 /'<;■ McDonald, C. . I., that the case not lieiiii' , '' .. , i- , : .i , , i .i /• ..^ 
 
 ■^ (In motion to dismiss the apjieal the t ourt 
 
 .stated as reouired hy the .•statute, the appeal , , , i . i ,i i ,i . n . . . 
 
 ' •' 'II ordered a new lioiid to he filed, the alijiellanl to 
 
 was defective and incomplete, and should he set ., . i- »; 
 
 I ' jiay the costs ot motion. 
 
 <isiile with costs. ■,, , ,, ■ ,. t> c ,. .i..,. 
 
 . , luylvr V. darui, (i J-!, iv d., i;!l() ; 
 
 Ihrtrain v. Hi fri/iiaii, 7 K. v*c (i., '2+() ; ,. ,. i -e i,, 
 
 7 C. L. T., .'US. I >....,. 
 
 I 9. Canada Temperance Act — t'onvietion 
 
 5. Amonnt under 840 Insuflleient state- under—Appeal to County Court- No appeal 
 ment — In a case where the amount in dispute thence to Supreme Court — Costs — A convic- 
 was less than .§40 the Judge helow certitieil to ' tion by a stii)cniliaiy magistrate was removed 
 the Court the jiajiers and the eviilence t.ikeii by apjieal to the County Court, and there 
 before him and submitted the question whether , ipiashed. 
 
03 
 
 AlM'KAf. 
 
 64 
 
 //'/(/, (li.il iin ii|i|i(Ml liiy III 111" Sn|iriiiic ^ ( 'niiit ill a c.iiiM' oii^'in.ilili;,' in I he .Mii;,'islialc'.s. 
 C'cilirt. iiM liiillc was expressly j.'iveli liV tlu' Aet ! ( 'oiirl, 
 
 fleiitili;,' I lie .illell.iiiiiil ^'ivili),' tile a|i|ieal to the j Coo/mi v. . I/. ■/,,,(„, ;j U. .v ('., 17!). 
 
 ('(iuiit\ ( 'mil I, allhiiii,i;li lln' Acts ciialllij^ ami I 
 
 (.iL'ain/iii.; I lie (niiiily Cuiiils ,.'ave a j^'eiwial |4, ('ailSCS a|)|H'ilI«'(l frOIII tlu> Majjls- 
 U|)I.eal t..tlie.Sii|HVMieC..lirl. t rale's ,■.,„, i t,, the('Munl,\ Cmn I eamiolhe. 
 
 Cdsts refused |Mre>|..,ii,lelil. as he sIh.uM have l,|,„|j_,||, |,_^, ,,|,,„,,| ,,, ,|,j^ {,',„,■>, 
 llii.ve.l I.. (|Mash the ,i|.lieal al an earlier Ma,i.'e. ^ ( ■,,.-hrii,i v. I.i,r,;„ii, :{ I!. \- (' , \m 
 
 .\/,'/).,„(i/<l v. M^Cinsh, :. I!. \- C, i. 
 
 10. Canada T<'m|»«'ran«'t' Art, IHIS >'o ap- 
 
 jieal IriJiii the I'diiiity C'lniit to the Suiireiiie 
 Court miller till' provisions of \i. appeal lies 
 til the Siipi line ( iiiirt fiinii tlii' ( ouiity ( 'mirl in 
 t'iiscs iii'isiiii.' miller i he prnvisiims of the Caiiada 
 TeMiperaliee Aet, \S~S. ami no sueii appeal can 
 lie taken miller the lueal art prnviiliiij,' generally 
 fur appeals I'rnni tliet'ipiinly I'omt. 
 
 Mrl),,,,,,/./ V. .l/.r(( /.«•/(,:. R.\ C. j.fi.lloweil. 
 
 V""" V. IIV.//;. 7 it. iV: •:.. -\ ; 
 
 7 ('. !.. ■!'., .Vi. 
 
 11. Canada Tomperanco Acl, isiS, s. 80 
 
 — Suit tor penalty t^iiesitioii of fai't hefeii 
 (liiiit Wiissiieil ill the Comity ( oiiit for the pen- 
 alty of !:<RK) muler seetion SU. Ciinailii 'reiiipei- 
 nnce Act. 187S, (Aets IS7.S, i'ai>. l(i. see. SO) iiml 
 was iliseliargeil for want of eviileiiee that the 
 lic|Uor Was solil hy him iiersonally or with his 
 authority. On appeal the judgnient was sus- 
 tained, tlioii;.'li the Court were stioiif.'ly of opinion 
 tlmt, on the evideiiee, defendant should have 
 
 It.l'll I'lll) V'll 't l>l I 
 
 been eolivieted 
 
 ;{.•{.-> i 
 
 'J'(ii//(/r V. (I'ltriii, tj H. & (i., 
 
 tiC. L. T.,4.V>. 
 
 1'2. Causes originating in Magistrate's 
 
 Court— Appeal to the County Court -Defects 
 in the .affidavit for .appeal — Power of the 
 County Court Judge to amend — 'I'hc iitKdavit 
 for ajipeal to the Magistrate's Court was defoe- 
 tive, not hoing headed in the cause, and the 
 words " before me" being omitted fron> the jurat. 
 The ,1 udgo of the County Court was satisfied 
 that the defects oecnrred through inadvertence 
 and without the fault of the appellant and with- 
 out any intention to evade the requirements of 
 the Statute, but dismissed the appeal on the 
 ground that he had no power to amend the affi- 
 davit. 
 
 Ilild, that he had such power. 
 
 H'oodworlh v. Iniiiti, 6 R. & G., '295; 
 GC. L. T., 440. 
 
 13. Cause originating in Magistrate's 
 
 Courts — No appeal from County Court — The 
 Court will not hear an appeal from the County 
 
 l.». (aikst's orltflnatln}; in MaKlMrate's 
 
 Court Apiieal where no jiirisdietion helow 
 Deposit of travelling fees in Magistrate's 
 Court where siinimons i.ssued to be served out 
 ofCounty ."nh U.S., e. Me.', s. •_', enacts that in 
 iill ea-es where the defendant does not reside in 
 theeounly where the smiiinons is is-ued, it shall 
 lie inemiilieiit on the .Inst ice, hefore i.-siiing the 
 writ, to reipiire the )ilaiiilill' to deposit with 
 him a .-mii iipial to ten cent.-, per mile each 
 way of llie ilistaiire between the rc-ideliee of 
 the ilefeliilant and the plaee o| trial, "and ill 
 ease such deposit shall not be actually paid in 
 as aforesaid, and indorsed on bot h original and 
 copy, the said writ and service shall he void." 
 
 I'lainlill issued a smiimons in the magistrate's 
 court against defeiidaiit to recover an ainount 
 elaiined to be due for goods sold and delivered, 
 but omitted to de|)osit, or to have indorsed on 
 the original and copy of the writ a siiliicieiit 
 amount to eo\ er defendant's tiavcUing expenses, 
 as leipiired by the slalute. 
 
 The magistrates admitted that the amount 
 was iiisullicieiit, but permitted the ]ilaiiititl' ti> 
 cure? the delicie.icy by depositing a further 
 amount, and proceeded with the trial. De- 
 fendant made no defence, and judgment was 
 given for the [ilaintitf. Defendant ajipealed, 
 and in the County Court application was made 
 on affidavit for judgment in his favor on the 
 ground stated. The ajiplication having been 
 refused the case was tried on its merits, and 
 judgment given for plaintiti'. 
 
 This judgment was not appealed from, but a 
 case was stated by the learned . Judge for the 
 opinion of the Court, on the interlocutory appli- 
 cation, as to the power of the magistrates to 
 permit the defect in the summons to be cured at 
 the trial. 
 
 Jlilil, pi r Weatlierbe, J., that the question of 
 the insufficiency of the amount did not come 
 properly before the County Court Judge on the 
 appeal, but should have ])ecn brought up by 
 ceitiurari while the case was before the magis- 
 trates. 
 
 Per Smith, J., that defendant should have 
 had judgment before the magistrates. 
 
 Per McDonald, C. J., that the summons and 
 all the jiroceedinga before the magistrates were 
 
n:. APPEAL. ()() 
 
 Vdjil fol' iic>ii-<'i>iii]iliMiu't' with the statiiti', and '20. COSIn Oil Iippoal AllieiKlliK'Ilt >'(>W 
 
 the iilipcal fi'iiiu till' vdiil ])i'()('i-i.'itiii^s I'luiM iidt triiil In <ii> ui'tion l>y iunl in tin' name of 
 
 give tilt' County Coui't .lurlgc jurisiliction to the jruaidiaii of u lunatii', fof a ililit dui' thu 
 
 aiijinliciitt' on tlin ((ul)j«.'it matter of the eaii.-i'. lunatie, the ilefendant did not go into iiis de- 
 
 Mnjlii/I V. Miltitchii . 7 I!. .1 <i., --S : feme, eontendint.' tiiat tlie aetion was wrongly 
 
 ',('. I,. 'I'. . ;(■_'•_'. lironglit, iind MidgiiMiil in the County Court 
 
 was givin for plaiiitilV. On appeal, the Court 
 
 ^ .,., A I I »• • .. allnucd plaintilt'to amend ; and, defendants eon- 
 
 1«. CorliHcuIr Apiical paiicrs Notrcrii- . , , , ,, ., 
 
 , , , ,, , tc ndiML; that there w.is a detenee on the merits, 
 
 tied Appellant moved at one term to transmit i , ■ , 
 
 , ,, ,. 1, .. , a new trial was ordercvl, hut without eosts, 
 
 ihe papers to the ( olinlv ( oiirt at roll llood to . , , . , , , 
 
 ... , ,. , ' .. , ,,,, Inst, heeaiise the new trial was an indlilgeliee to 
 
 he eeitilied, whuh was rehi.sed. I he motion , ,, , , . . , • , 
 
 , , , , , ileteiidaiits, as tin) ( oiirt might 111 sueli a easo 
 
 was renewed at the next term under the statute ... ,.,,.,. , , , 
 
 . , ,,„, , • 1 1 , 1 1 • ,1 ;-'i^e linlg'ineiit tor the plaintill on the amended 
 
 ot ISSd. which had liieii passed sllire Ihe last , ,, , , , ■ i .- i 
 
 „„ f 1 I . II leeord : sfeoiiilly. oeeaiise, hail the deielnlalit 
 
 lirin. Ihe eoiirt retilsi'd a rule. Appellant , . ,' ■ . , , 
 
 , ,. . , , , , entered on his detenee in the ( omi lieloW, a new 
 
 then moved to dismiss the appe.il. and a rule , ., , , , , , 
 
 , ,, . . , I , trial would possiMv have I eeli rehdered uiillu- 
 
 was granted dismis>iiiL; the appe.il with costs to ' • 
 
 , . ' , eessarv liV Ins smvos. 
 
 llir time the motion was made. i 'i ' ■ 
 
 , ,. , .„ . ... S,,n,iiii, V. /'m,/. ,-, I I!. ^V •;., •-".l-_> X- »!».->. 
 
 I ( . I.. I ., Iili.t, 
 
 it. Crimliial casivs Lhiiior License .\et - 
 
 17. CeHilieaU' .\ppeal piipers Sent baek No appeal (rem County Cou.-t Delendam, the 
 
 to have oertilieate ameiuled .\ppeal pap,i> I'-l'ler ot a ■• sho|i liren.>e, was eonvieted hetore 
 
 sent haek to the .lu.lge of the Count V Court in 'l"'-^'i|'<'"li'"y .Magistrate for the City of llali- 
 
 ordertohave the eertilieate amended "l,v inelud- ''''^^ ""> I"' informal ion of .1. for having uiilaw- 
 
 iiiL' the rule for appeal amon- the papers ...rti. fi'H.VaUowed li.|Uor sold hy him to 1„. .•onsumed 
 
 lied, the rule not having Keen rertitied Ky the '" ""■ 1"<''"'-''^- iu vinl.Uion of llu' provisioi;,* 
 
 liii|,,i. ' of till' l.iipior Li'i'iisi' .\(i of Issii. 
 
 /V Weatherhe. d.. that tlu' papers Were al- '" ""' *'"""'>' ^'"'"l '"'' '''""'^f ^'"- ' '"^' 
 
 ready sulliei..ntly eertilied. • '■''•''"" "■•"* -l"''-^li"'l ^^itl' eosts on the ground 
 
 11" r//i v/, • V I'llilii •' r V (' ss • '''■'' ''"' i"'"i''ui'r. not having renouneed his 
 
 I (. I .|. -..- I'laini to the line liefore lieiug swdiii as a w itiiess 
 
 in the Court lielow. was incompetent as a wit- 
 
 ncs.s and there was no finiher evidi'in'e to sup- 
 
 IS. Costs .ippeal abanclOOed Kespond- I'orl ihe c.mviction. .\ further ajipeal heing 
 
 ent entitled to what cost.s Appeal p.ipcis taken to the .Supreme Com t. 
 
 w.re sent hack to the .ludge of the County //</'/. that the matter lieilig one of a eriminal 
 
 Court to he inieiided. ami were amended, after nature there was no appeal from the County 
 
 which the apiellaul aljandoiicd his appeal. Court to the .Supreme Cuurt. 
 
 JIi/il. that till' respondent was entitled to his .lUtt. that the provisions of ."itli R. S., e. 10,'}, 
 
 eii.-ls up to the day on which notice was given excluding I he informer in certain eases from giv- 
 
 of the aliandonmeiit of the appeal. iiig evii'.eiice are not applicalile to suits lirought 
 
 Mrl.Kiil V. Diiiihiji. •_' i:. A- (;., 4!l.'<. hefore the Stipendiary Magistrate of the City of 
 
 Halifax, hut if they can lie held to ap|ily the 
 
 duiL'e of the ( 'oiint V Court on trying theca.se 
 
 19. Costs- SCCIirlly for- Discretion -.\p. ,/, ,;„,„ ,|,„„i,l havj leeeived the evhlenee of the 
 
 peal -An appeal was taken from an order of a j,,,-,,.,,,,.,., |„, i,,,.;,,^, renounced all claim to the 
 
 ( ounty Court Judge discharging an order /,/../ for j,,,,,,,,,^. ,„,,■ „.^, j,,.;,,^, ^„..„.„ 
 
 seeuritv tor costs, where it was shown that the ,, " i .i .i i f .i 
 
 . ■ ' 1...1.. i.iw (,y/(f/, ,v . whether there was an appeal troiii the 
 
 plaiiililh although resilient out of the rrovince, v.- r \i ■ . . . .i <• . c 
 
 ' Mi|)endiai\ .Magistrate to the t omit V I ourt. 
 
 was a native and a Ihitish suhiect and had I'on- ,. " ; " i .i .i ■ ■ c -i.u 
 
 ■' V"" '' ' "'■"''". "hetlier the provisions of jith 
 
 Mderahle real and personal estate within the ,j ,, ^. ,„;,_ ,„.^, ,,,,,,1,^,,,,^, ,„ ,,,,„,.cutioius 
 
 jurisdiction, and there was .some ..videi.ce that ,„„,,.,, ,,,^, ^^,, „,- ,^^,. 
 
 she intended to return. ,, ,.,, , ,,,,v- ^. ,, ,,, t> r ,, ; ,-,. 
 
 ,, V"" " V. sill jiiard, ■_'() N. Js. M., (S K. iV (■.), 4i(i ; 
 
 //'/'/, that the granting or refusal of the stay ,, ,. r -j- „-.> 
 
 of proceedings hy the County Coui't Judge was 
 
 ii matter of discretion and that the discretion 22. Criminal CasCS — Xo appeal frOHl 
 
 had heeii rightly exercised hy the .liidge. County Court -Defendant, a driver in the em- 
 
 Ciinl V. ITh/n, 4 R. iS: (i., ».l phiy of the Halifax Street Railway Co., was 
 .3 
 
67 
 
 APPEAL. 
 
 G8 
 
 convicted liy t\\v Stipi'iuliary MagUHtratc fur the 
 City iif Hiiiifiix lit" a vi'ilatiiiii nf llu' ('lia))lri cif 
 tlif lU'visf.l Statutes, "Of (MUiUfs AKaiii^l 
 lieligioii." |py luasioiiof having pfrforniL'il siTvilf 
 laliDi' ill ilriviiig mw nf tiic inin|)aiiy'» eain on 
 Siniijay. 'I'lii' timvictidii having' lucn sfl aside 
 in the County Couit for distriet No. I. 
 
 //</</, following (iuien v. S/ic/ininl. tlial thu 
 matter lieiug of a eriiniual nature tliere was 
 no appeal from the County Court to tlu' .Suprinu' 
 Court. 
 
 Vl(.W( V. C/,/nilll, !.'(» N'. S |{., (S P,. \ (1.), Jso ; 
 
 !i C. L. T., •-'.■.4. 
 
 23. Entry ("orllllort piiprrs not Hied 
 
 Ajipeal from County (Hull (uinler Ail of ISTT, 
 Chap, ti,) di.sini«!<eil, the cause not lieiiij,' <>iitere(| 
 on the (locket, iiiiil no I'ertilied papers lieiiig on 
 
 tile. 
 
 II'A. . /.,./,■ V. I! rein,, I It. .V- C, l;i. 
 
 '21. Entry Euilurc to enter Aeeountin^; 
 
 for ■Appellant allowed to enter cause, on pay- 
 ment of co.sts of rule to dismiss a|ipeal for non- 
 entry, where the failure to enter it residte<l 
 from misunderstanding lpet« eeii criunsel engaged. 
 Jvluisliiii V. MrLnlii, H H. ,^ (i., .'{l : 
 ■J C. L. r., (KI.S. 
 
 25. EilinK appeal papers Motion to .strike 
 
 ofl' cause Papers not on tile Apjieal in causes 
 originating in Magistrate's Court • Amount 
 in dispute under $40 - A rule ///.«/ was taken 
 April "Jiid, ISSl, to strike a cause oli'the docket 
 on the ground that the p.ipeis were not on tile, 
 anil that the cause hail originated in the City 
 Court and the amount in dispute was less than 
 $40, heing only .■?1(»..')(). It was shown hy 
 atljdavit on the argument of the rule tliat the 
 reason why the' )>apcrs were not on tile was that 
 an application was ]iciiding in the Court helow , 
 to amend the minutes. The rule iil-ii was after 
 argument discharged. Another ride /(/</ was 
 taken out De'emher 14th, IS.Sl, to strike oH' 
 tlie cause and dismiss the a[)peal on the same ! 
 grounds as liefore. The ])apers were not on tile ' 
 at the time of taking out the rule ///.-.•/, hut were 
 filed hefore the argument. 
 
 Hi /if, that this was not sufficient, and that the - 
 appei'l must he dismissed. | 
 
 Boxsoin V. Coomhis, .S R. it C,., 2.") : ' 
 •2V. L. T., (iOl. 
 
 20. Ground not taken below— Xo appeal 
 
 on — Jury in County Court— There can he no 
 appeal on a ground not taken helow. 
 
 Qiinfn , whether juries, in cases in the County 
 Courts, other than those mentioned in section 
 
 .V> of the .\ct, should he instructed to givu gen- 
 eral verdicts, and whether the proper ]iidieilure 
 is not toohtain their lindiiigson the controverted 
 facts which the .Indge deems it proper to siihmit 
 to them, after which the judgment in the cause 
 should he gi\cn li,v the iludge iriespectivi' of the 
 jury. 
 
 ^liidixirs V. Litiiili I", 4 K. \' (i., 'J.'Jtl ; 
 
 i l^hiiiii V. .1/(7/1 /•, III., ;«ii. 
 
 27. (irounds of appeal Amendment of 
 
 refused I'laiutill's' action was hrought in the 
 ('oiintv Court to recover professional fee< as 
 solicitors, attorneys and liarrislers. The piin- 
 cipid i|Ue>lioii of fact was as to the services 
 covered hy a sum of ."^KHt paid Ky defiliilant 
 to jilaintitVs, upon which the evidence was cou- 
 llicting; the judgment helow was for plaintill's, 
 and defendant, having ajipealeil. applied, after 
 ihe cause hail heeii one term on the dnrkct, 
 and had hecome a remaiut, to amend the 
 grounds of appeal under section Ilt4, of the 
 
 County C t Consolidation Act of ISSO, hy 
 
 adding the ground that harristeis had no light 
 to recover for profes.-ioual services. The court 
 refused the amendment, and helil on the merit.s 
 that the evidence was not strong enough to 
 justify them in disturhing the judgment. 
 
 Mdffiiii il III. V. Ilri iiiiiiii, '1 It. .t (i., U)".2 ; 
 
 1 c. J.. T., (iu;{. 
 
 28. Grounds of appeal — Amendment or 
 
 refused - Laches -I'laintilV appealed from the 
 decision of the Ccninty Court .Judge, Decemher 
 .Srd, 1.S70, on the ground that it was against law 
 and evidence. On Deiiemher 14th, 1S,S0, he 
 applied for leave to amend the gnninds so as to 
 raise the question of defendant's righ*' to remove 
 certain articles as tixtures. The lenilinent 
 was refused. 
 
 Laidlaw v. Taylor, 2 R. & (J., I'ltj. 
 
 29. Minutes of County Court .ludse — 
 
 Amendment of —Refusal to amend —No appeal 
 from — Ajiplieation was made to a Judge of the 
 County Court, after an appeal had heeii per- 
 fected, to amend his minutes by adding 
 testimony given on the trial. l)ut not noted im 
 the minutes. The application was refused on 
 the ground that the Judge had no power to 
 amend after an appeal had been taken on the 
 merits. An appeal from this refusal was tiikeu 
 under Chapter '2, Section i)i), of the Acts of 
 1,S80. It appeared that the evidence had been 
 tendered at the trial and rejected as irrelevant. 
 Held, per McDonahl, C. J., there could he 
 no appeal from the refusal of the Judge to 
 amend his minutes after the appeal had been 
 
(i!» APPKAL. 70 
 
 pilfirtiil. Hvcii if tlif ('ipiilt lii'lifvod tliu thiit till! liiitch liadlicoil left uju'ii liy ii wrong. 
 
 liaiMcil .Iml^'c 111 liavf lioi'ii widiig, it wniilil not iloir. TIiitc wmm no (ividtMU'L- of cotitrilnitory 
 
 iciiiipil iiiiii to aild fviduncu wiiicli lie had ncgligunci'. 
 
 rtjrttcd as ii ici.vant. //,/,/, that (tlio appeal lieinj,' under tiie Act of 
 
 Kiu'iy, . I., .//.«'/('///;/. 1877) the Court eouid not review the deeision 
 
 /'</• U'eatiierlie, .1.- In eases where the .ludne of tile County Court .lud^,'e on the weight of 
 
 nf I lie County Court refuses to amend his niin- evidence as to ilefendant's occupancy (although 
 
 iilcs, there is no appeal. it might, had tiiere lieeii no evidence, have said 
 
 /'"■ Itiu'l'V, .1. —The application was wrongly that a non-suit should iiave lieeii ordered), i-id 
 
 iM.idc, the evidence liaving l>eeii rejected at the that the jmlgrrient for plaintitl' for .':*7(» irp' oe 
 
 ti ;.d, « hiie tlie application was to ha\e it ailded upheld. 
 
 as evidence wlircji hail lieeri re(ei\ed, hrrt irol )'o/7,' v. Mrfjni,/li/i,i,',i K. i<; ('., IMi"). 
 entered orr lire mirrirtes. 
 
 /V,Smillr,.l.--.\o appeal wouhl lie in this ;j;{. QuostiWII Of fllOt - No H|)|ienl — ActS 
 ^■''^'■- I 1.S77, e. 6, H. 25 - Urrder section •.'.■> of the 
 
 ''"' 'I""!'!"- d. -An appeid would lie, as Alueiiding Cottrrty Court Act ..f 1877, chapter 
 
 the dcci>i<Mi appealed frnin was l.aseil on a (I, the Court has no jurisdiction to reverse the 
 
 iiialtcr' of law, vi/, : the ipiestiorr whether the decisiim of the County Court .Judge on disputed 
 .Iiidge liail power to amend his minirtes after : (|uestions of fact. 
 
 taken on tlie merits. ||-;,,. y /,,/,,„„, ;{ [{. ,\t ('., •_'!!!». 
 
 aiiiieal 
 
 Hitii!-" y V ('i(in)iii;iliiiiii, (i It. N; (!,, '_'<); i 
 
 (iC. L. T., i;w. 34^ Question of fatt -Xo appeal Acts 
 
 1877, c. 6, US. 25 & 26 - I'laintill' having heen 
 .'to. Power of Jlldije to grant appeal eirgageil as tcailier' of languages for defemlant, at 
 under Acts 1878, e. 9, ,s. 14 The ( ount y < nirrt '^ salary of .S7'K) a year, entered, verhally, in 
 Jridge granted arr appeal uirder- section II of Fchruaiv, 1S77, into a new ni'i-angemeirt, for 
 chapli'r- !l. Acts of |S7,S, in a cause origiuallv •*'•"''•*•. "itlr the pi'ivilegeof taUirrg private ))ir))ils. 
 iiioiight in the Magistrate's Coltrt. 'I'lie appi.il Afterwards, in August, IS77, he wrote to clet'end- 
 was taken in May. |S7!), sul>.sei|Uerrtlv to the i^"' '1'^'' '"^' wishcil to revert to the foi'mer 
 statute of that year enaliling the Couiitv Couit ariangerrreirt, to which clefendanl niiule no writ- 
 Judge to grant appeals in all cases, ten reply, iind there was eonilicting evidence as 
 //■/il. thai the Judge liad power to grant the t'> whether' deferidairt ever' ver'lially agreed to 
 appeal. retur'n to the old arr'angenient. 
 
 Th(uiHi-< V, /.'(()/, •_' K. & (;., i;i.-). The .Judge of the County Court gave judg- 
 
 irient for- the plaintitl', oir the luisis of .•<7ll() ))er 
 
 .,j „ ., „ X. ^ . .... airnum, for' the (luarter fr-orn Xoveinher, IH77, 
 
 at. Qiicsllonof fact Appeal dismissed- ,„Kei„n,rv is-s 
 
 I ts lB/7, e. b, s. iio \\ hen, in an aiiireal tr'oin , , . , r ^i • i • ■ -i 
 
 ., ,, ,, , '' An airpeal was taken from this decision, ami 
 
 the (.ounty (oiiit, there were no (iue.-.trons of ,, , , . i .. » •. i i i . i 
 
 , , , ,. , . , the .ludge reiiorted that it had lieeii granted 
 
 law, and the ( ounty ( ourt .Judge, acting as , . ,,,. . ^, ,, ^ ., . . , 
 
 , , . , , . ". " under' sectu)ii J() ot the I ounty I ourt Anienil- 
 
 both judge and jury, discredited the plainitli's 
 story, and gave judgment for the defendant, the 
 Cuiirt dismissed the appeal with costs. 
 
 ing .-Vet of 1877. 
 
 //('/(/, that the Judge, heing called ujion to 
 
 . „ . exerci.se the ixiwei's of a jury, had the right to 
 
 Cntlenw Sl,,,hins,-^Y{,. kV.,\)\. , • , ,, ,• r c / , r- i •• 
 
 (lecrde the ipieslion ot tact, as he diil, giving 
 
 due weight to the letter of plaintitl' and to 
 
 32. Question of filCt- Weight of evidcnec <l''f»;'"l:>'if'* omission to reply to it, anil that the 
 
 No review of deeision on — Acts 1877, c. 6, uppual must he dismissed. 
 
 S. 25 — i'laintill' sutl'ered ini-'ries hy falling i Von Metzkc \. I'ddfield, \ \i. k i\., M. 
 
 thriiugh a trap-door opening thr'oiigh the siile- ' 
 
 walk into the cellar of defendant. The Judge 35. Question Of faCt— NO appeal — ActS 
 
 of the County Court, before whom the case was 1877, c. 6, ss. 25 & :M, repeal Acts, 1874, c. 18, 
 
 tried without a jury, found that the premises to s. 53~.Seetion .'{4, read in coniieetion with sec- 
 
 whieh the trap-door was appurtenant, were in tion "J."), in the Act to amend the Act to establish 
 
 the occupation of defendant, and there was County Courts (1877, e. (i) repeals the provision 
 
 evi.kiuu which, had a jury been empanelled, of section 53, of the County Court Act of 1S74, 
 
 woulil have re(;uii'ed to be submitted to them o. 18, allowing an appeal from the decision of 
 
 tipun that issue. Defendant gave no evidence the Judge upon a question of fact. 
 
 to the contrary, and did not attempt to prove i Dewar v. Murphy, 1 R. & G., 84. 
 
71 APPEAL. 72 
 
 30. Question of fact— WelRht of evidence vessel l)eiiig out of liei- usual eoursc, sueii in- 
 
 — Judgment reversed as against -Acts 1880, ference was open to review on a])peal. 
 
 c. 2, s. 99— .luilgiiM'iit of County Court n.'veiseil Per \Veatlieil)e, J., diaseiitimj, tiiat us tliere 
 
 on tlie weight of evideUL'e under (.'(junty Court was evidence enough for plaintitl' to i)revent a 
 
 Consolidation Act of ISSO. non-suit, the Court eouM not. on ajj^eal, leview 
 
 Miir/ilii/ V. Huiiio, '2 H. & (!., 17.') ; the linding of the .ludge on the facts where tile 
 
 1 C. L. T., (i()'2. only gi'ound in tlie rule for ajjpeal was tliat the 
 
 judgment \ias against evidence. 
 
 37. Question of fact -Appeal on evidence Jinnett v Sutfin, r, R. ^t c., 202. 
 
 from County Court Allowed - Acts 1880, c. 
 
 2. s. 99 Ajipeal fi'oni the judgment of the 41. Kcfusal Of appeal bf COUnt}' Court— 
 
 County Court allowed, on the evidence, with Appeal from refusal — County Court Act, 
 
 costs, and judgment to he entered for ])laintitl' 1877, c. 6— Where a cause was tried at the 
 
 l)ch)W witli costs. C(mnty Ccmrt Chambers, Deeendier ,")th. 1870, 
 
 Milli't V. LiiriUii, 4 T!. \- C., ;)(»!). judgment jjronounced Deceniliei- •.'(Jtli, 1,S7'.>, and 
 
 a motion for appeal made on the last diiy of tlie 
 
 38. Welgllt of evidence -.ludsment of danuary term of the County Court, ISSU, which 
 County Court sustained on -In an action of was refused. 
 
 trover for deals, the fact of conver.-.ioii liy du- Held, that the appellant had not lirought liini- 
 
 feiidant rested on evidence of the freight deliv- self witliin tiie terms of the County Court Act 
 
 erer that the deals were delivered to one Mc.\., of 1S77. and that the appeal from the decision 
 
 who acted as agent for ilefendunt, as well as foi- of the County Court Judge refusing tlie appeal 
 
 DeW., to whom they were addresseil liy ])laiu- must he diMui.-sed. 
 
 till'; that it was his duty to know wiio wei'e McDuiid/tl v. f'nii.-, 'A R. & (i., ].") ; 
 
 the charterers of the vessels being laden at the 2 C. L. T., (iol. 
 wliaif where the ik'als were delivered, and that 
 
 he knew that ill this instance DeW. aid not get 42. KefUKUl Of IcaVe tO reply — Appeal 
 
 the deals, hut that McA. checked them from from allowed— Acts 1877. c. 6. s. 25 — 'I'he 
 
 the ears ami into vessels for the defeiid.iiit. C'ounty Court .ludge refused to allow plaintill', 
 
 //(•/(/, that the County Court .ludge was right „t'ier liie expiration of thirty diiys from the 
 
 in refusing to non-suit the jilaintilV. liliug of defendant's plea of payment into court, 
 
 J'urdi/ V. M(if/ii />\ 4 R. & (i., .SlIS. to reply, that tiie amount paid was insuthcient. 
 
 Defendant appealed under tlie County Court 
 
 31>. Finding of County Court Judge on Amemlment Act of IS77. 
 
 facts reviewed, and reversed — •'^tc/i/ien vt nl. v. JIM, tliat the rule had Ween wrongly refused, 
 
 (riicdZfi ajiplied, 4 H. \ (!., .^U. and further, that as the refusal to allow a ri'pli- 
 
 tlu'slcij v. Gnvdzn et td., 4 R. Jt (i., .'t.'iO. cation was decisive against the plaintill's claiii;, 
 
 and therefore a liiial judgment, it could lie ap- 
 
 40. Question of fact Reviewing tinding P'^"'*''^ f""" 
 
 — On appeal- I'laintitlhrought action of trover ''"'"^ provisums of the County Court Act of 
 and trespass for nets allegcl to have been run •><T7,jis to appeal, supersede altogether those 
 
 over by the " M. A. Starr,'" of which defendant "f l*^'-*- „ ,> , „ ,. ., „ ,, ,, ,., 
 
 ... ... Mcl.nhc v. McKiUi, A R. & ( ., .s.l. 
 
 was master, and judgment was given m the 
 
 Countv Court for phiintitl'. 
 
 n, i<h Weatherbe, J. , du.ontiwi, that the pre- 43- Kulc for appeal -Defective -Quaere, 
 
 scnce of the steamer at the jdace where the nets "w^hether rule requires to be certilied-Appeal 
 were fouled was no evidence of negligence, as fnim the County Court dismissed when the de- 
 there was uncontradicted evidence that they f^-'inliuit, api'dlant, in taking out his rule, had, 
 were not fouled in the place where they were through a clerical error, referred to the appeal 
 set, but had drifted. '^^ ''*''"*'' ^'^'^'=" "" ^^^^ P^''* "^ ^'''^ plaintitf. 
 
 lb hi, further, that a demand of satisfaction Qnnvre, whether the rule for appeal is among 
 
 f,.r the nets destroyed was not a .sutlicient the papers re.juire.l to be certified by the Judge 
 
 demand on which to ba.^e an action of trover for ""^^'^'' tl'i^ County Court Act of 1S74. 
 
 the remnants of the nets taken on board the O Tool y. llouper, 1 R. &(i.,4S4. 
 steamer and save<l. 
 
 I'<r Thompson, J., that even if there were 44. KUi«: for inUSt bC granted — Bad 
 
 cvidenet^ from which the County Court Judge where it read "upon filing security " — The 
 
 had diawn an inference of negligence, from the Court declined to entertain an appeal from the 
 
73 
 
 APPEAL. 
 
 74 
 
 ('minty Ccnut in a cause (irigiiuuing in the Maj;- 
 istnite's Couit, wliero tliu nile fur ajjpoal was 
 tiikeii iipmi tiling .security, ami nut "giauteil" 
 ))V the .hidge, within the meaning of t^ee. S, 
 ciirtl.. '-'I), 1S7!). 
 
 J/f(."'.vo» V. Mil.^ui, •-' i;. \- C, I7C. : 
 1 ('. L. T., (!(i4. 
 
 up'in tile fi)ll()wing giouniU ' » • - unle.s.s 
 cause lu the conlraiy lie shown liefoie the 
 .Supreme Court in hnnro duiing the tiist fouf 
 ilays, etc.'' 
 
 Appeal (lismi.ssed. 
 .I(ihi(yl(iii V. I'oi/iil:, 1 II. CC {'•., lUti, ilistinguisiied. 
 
 t.'. Kiile nisi Tor appeal Trom (Miinty 
 
 Court — Bad — Second Appeal — Laches — De- 
 
 feiidant'.s a])peal from the decision of the Comity 
 CiiU't in a cause tfied duly, 1S77, was taken in 
 tlic Iniiii of a lule for leave to a))peal, unless 
 cause to the contiafy siiould lie shown Kefoie the 
 .Supreme Ciuift /// hitiifn. '{'he fide also pioviiled 
 for a liond to he given. 
 
 //'/'/, that the olijection to the form of the 
 a|i|ical was fatal. 
 
 An order for appeal was afterwanls granted 
 liy the County Court .Itulge, Kehruary ■J'Jnd, 
 1>7S, and the pajiers, certitieil .March 7th, wt'ic 
 tiled .March lltli, IS7,S. 
 
 //i A/, that this appeal must Kc dismissid on 
 the grouiiil that it was perfeeteil without any 
 permissive oi-dcr of this Court, wiien a \iiy 
 uureasdlialile time had elajjscd lifter the verdict 
 snuglit to lie ap]iealed from was given. 
 
 W'ooill// V. LiCrn-, 1 H. i\: (J., 7. 
 
 I(i. Uiilc nisi Tor appeai Troni Coiiiily 
 
 C'uurt Fiat of Judge indorsed A rule for 
 a|i]ical froiu the County Court was taken in the 
 f Uowing form: On motion it is oidered that 
 ail a\ipeal from the judgment in this cause lie 
 allowed to the .Siipieiiie Court, and that said 
 judgment he .set aside and nc«' trial gianteil, or 
 jlldgdleiit he entered for defendant on the 
 gniuiids following, that is to .say, etc., etc.; and 
 that in the ineantimc all further proceedings on 
 said judgment lie stayed, unless cause to the 
 ciiiitiiuy he shown before the Siipreine Court at 
 tile next Decemlier term, and that meautiine .".11 
 ]ini.cciliiigs he stayeil. The r .le was signed liy 
 the clerk, liiit on the rule was indorsed a liat 
 signed liy tlu^ dudge of the Coiiniy Court, eom- 
 niuiidiiig the Clerk, on liond lieiiig tiled, to sign 
 tile rule as of the last day of tiie sittings when 
 it WIS moveil for. 
 
 The Court refused to dismiss the apjieal on 
 the ground of informality. 
 
 .Ii,h,i^ii,i V. I'li.iiil: il III., 1 It. \- V,., lliti. 
 
 48. Uule nisi for appeai Bad Appeal 
 
 from the County Court dismissed w iicie the rule 
 for appeal was in these terms : '• 1 do order that 
 the judgment lie set aside on the following 
 grounds, etc., etc., unless cause to the eontrary 
 lie shown liefole the ,Su|irenie Court at Halifax 
 within tlielirsi four days of the ensuing Decciii- 
 her term." 
 
 Ih iiii:<oii V. .hfk, •_' l;. it •;., 170; 
 I C. !-. T., (iti:$. 
 
 4J>. Kiile nisi for appeal-Bad -A rule fm 
 
 an ajipeal from the ruling of a Judge refusing 
 to allow nil e\aniiiiation of an agent ill regard 
 to certain matters under the Aliscoiidiiig Delit- 
 oi s' Act was taken in the following form : — It 
 is ordereil that an appeal lie granted from the 
 ruling of the presiding ■llidge given at the ex- 
 amination, etc., on the grounds, etc., and that a 
 reheariiii: of said agent lie had, unless cause to 
 the contrary lie shown liefore the Supreme Court 
 ill liiuiid at Halifax, within the tirst four days of 
 the next ensuing term. 
 Appeal dismissed. 
 
 Doh.ii, V. Mi'Dounl'!, :{ K. \ (;., l-'7. 
 
 .10. Hilie nisi below amended on appeal 
 
 and made absolute — On appeal from the judg- 
 ment of the County Court refusing to .set asiile 
 a default w here the wt it hail not been personally 
 served, the (.'ourt, under i-tule 14, Order "JS, 
 amended the rule ni"! in the Court below, by 
 adding a ground setting ou* that defendant liad 
 a defence on the merits, and had satisfactorily 
 accounted for his non-a|i]ieai"iiiee, ami made 
 absolute the rule on terms <if a bond beinu 
 given to the County Court Judge to respond 
 final judgment, defendant to pay costs of argu- 
 ment and apjieal, otliirwisi' appeal to be ilis- 
 missed. 
 
 Hiniihii V. MiXiill, ."■ K. .V <.., .-.41. 
 
 i«. Itiiie nisi for appeal Trom lounl} 'il. Huie on appeal for entering up Judg- 
 
 Court— Bad— .\ Kiile for an appeal from the ment in County Court-E.xcea.^ of jurisdiction 
 
 • iiiiiity Court was taken in the following form : — The Court dismissed an ajipcal for irregularity 
 
 " <>ii luaring read, etc., it is ordered that the in the form of the rule, and granted a rule direct- 
 
 lU'feiiilaiit have leave to ap|)eal, and an appeal iiig the Clerk of the County Court to enter up 
 
 IS lieiehy granted from the judgment, etc., judgment in the County Court for plaintitr. On 
 
75 
 
 APPEAf. 
 
 7a 
 
 til M'l tlu' jiulgint'Mt :i>iilf, 
 
 JI' ''/, that the unliT ui {\\v Sii|ii-t'Uir Cniirt tci- 
 t'litiTiiiL; ii]( jiiilijiiu'iit was in cxcfss (if jurisi'ic- 
 ti<iii, anil thf I 'lurk ut the Cniiiity Cnurt hai! nu 
 atithoiity to eiiti'i' ii]i jii(lj,'nuMit. 
 
 .y2. Sct-oir raisin;; (tiiCNtioiis iil' title 
 
 Duoision tliat the Couit was excluded from 
 jurisdiction a])peal!ible W heie a ('nun has im 
 juiisili.'tiiiu III try a i|Uesliiiri nt' title, ilefeiidaiit 
 caiiiiiii (Hist the jiiiisilietiiiii tu eiitei tain a. elaiiii 
 iiiV(il\ iiiL: nil (|iiesti(in nf title, hy jileiKliiij: a set - 
 (itl'thal inxdlves a i|Uesti(Mi (if title. 
 
 All aetidii was hi'diiLrht in the .Ma^istiate's 
 ('(Pint and jiidnnient ;,'iven im ]ilaintiir. Tlie 
 ('(iiliity ("iiiii , .Iu(lj;e, (III appeal, deeideit thiit the 
 i| nest inn ui title was in sol veil and the ('(in 11 was 
 thefefiilc ■' excluded fl'dlii jurisdietidli." 
 
 //■/'/. tiiat an appeal lay to the Supreme ( 'dv.it 
 ffdin the deeisidll. 
 
 Ci-i i'',ili'oii V. Liii'l<n}i, ;{ It. K^L- (i., iM.'f. 
 
 .l:{. statin;; case nliere amount in disiuite 
 
 under $40 -in a east' wlieie the aninunt in dis- 
 pute was less tlian S4U the .Iiid,L.'e liehiw eertilied 
 to the Cdillt the pa|ieis and the evideiiee taken 
 liefiire him and suhmitted the (|iiestidii whether 
 iipim the evidence so sent up, the plaiiitill' was 
 entitled to recdver ai,'aiiist the defendant. 
 
 Iltlil, that lid ease had heen stated for the 
 opinion of tiie ( 'dint. 
 
 I'.iiirniii V. Ifi rrhixtii, 'JO X. .'^. \{., 
 (S 1^' .Vc (;.), (i«. 
 
 34. Summary Causes - Decision of County 
 
 Court final in —On appeal to tlu' ("ounty Court 
 from a judgment and ediivietion liy two magis- 
 trates under the license laws, the County Court 
 Judge without trying the cause il< iioro ([Uaslied 
 the conviction on the ground that it w.is a con- 
 viction simply for violating the license law, 
 witiiout stilting the particular iict of violation. 
 An appeal was granted to this Court. 
 
 Tlihl, that the judgment helow must lie 
 atiirined on the ground that the conviction had 
 rightly l)';en (juaslied, and further that the sum- 
 mary jurisdiction heiiig alioli.slied the decision r)f 
 the County (_'ouit was tiiial. 
 
 Weatiieilie, d., (Ilxsinliii'j. 
 
 Ilosi v. Jiiirb, 1 H. f{ (i., !»4. 
 
 53. Time for appeal —Lateness -Appeal 
 
 from an order of the County Court sustaining a 
 claim against an insolvent estate, (lisniissed with 
 
 t'osts, wlieif iiriieiedin..'-. wiTe iinl taken within 
 the eight days limited liy .-tatute. 
 
 /,' ,•■ Mnr'.H,'^ K^'nl,, •_' 1!. \- C, -MX ; 
 I C. L. i'., ()ti4. 
 
 \'i.-Fi;().\i i".<,icrr\' ( onn. 
 I. K(|uity- .Ippeais from .ln(l.:;e in 
 
 " Matters of practice" — Meaning of— 'I'lir e\- 
 pres.-^idii "matters df practice" u.^ed in .s.,'e. 7-'>, 
 iifcap. !l."i, U. .~s. ( llh series), ''(It I'rdeediili ill 
 Ivpiity.' as not lieiiig suliject tn appeal, refers 
 diily td tliii.-e malters uf mere i)rin-edure in 
 wiiieh the diid:.'e has a disi.'ret inii, Imt nut in 
 Vdlving any leL;al principle. 'I'Ik; decisidU of the 
 .liidge in H(|iiily on the folldwing [loiiits was 
 held lint suliject tn appcil ; - 
 
 That the answer to the plaiiitill"s hill pin 
 fessed td lie the personal answer nf llu' drfelid 
 ant, liiit was imi signed !iy him. 
 
 'I'lie fdlldwing grdiiiids of appeal were disal- 
 lowed as involving mere matters of practice: — 
 
 1. That no exceptions can lie taken to an 
 answer in the K(|uity Court of Xova .Scotia, lnit 
 all olijections must lie taken liy dcnuirrer. 
 
 ■_'. That none of the e.xceinidus td defeml 
 ant's answer were taken in time. 
 
 .'i. That the exceptions were not set dnwii 
 fur argument in the time allowed, and could nut 
 he so set down afterwards without an order. 
 
 4. 'i'hiit the parts of the liill alleged to he 
 insullicieiitly answered were not set hirth in the 
 exceptidiis, nur referred to with certainty, 
 
 (liduiid of appeal, that the judgment is con 
 trary to law and eijuily, hhl too general. 
 
 Ill III, that defendant, having undertaken to 
 make an account part of his answer, could nut 
 be heard to say that the hill did not ask for it. 
 
 Where plaintilf took thirty-one exceptions to 
 defendant's answer, on four of w liich defendant 
 succeeded on appeal, plaintifT was ordered tn 
 pay four thirty-tirsts of defendant's cost of ap- 
 peal, and defendant twenty-seven thirty-tli'Pts 
 of plaintiirs; the costs to he set oH'. 
 
 Ihirkmr v. U'liUan , ."> R. ,& (;., 40.'i. 
 
 2. Equity - Appeal from .Judge In - 
 
 Allowance of — Certificate of Coun.sel — 'I'lie 
 .allowance of an appeal hy the .Judge in Ivpiity 
 does not ilispeiise witli the statutory rei|uiic- 
 nieiit of a cortitieate liy counsel. 
 
 The absence of such certificate is not a clerical 
 error which can bo amended. 
 
 {.hunt V. Doiwimi, (i H. «& (i., 19: 
 
 (iC. L T.. i;t7. 
 
77 
 
 APPEAL. 
 
 78 
 
 3. Equity "Time for appeal— From when 1 S., c. l, s. 8— Plaintiff institutetl an action luukr 
 it begins to run — Tlii; tiiiiu witliin wliioli an is. '2H, u. 147, .Snl I?. S., before two Justices of 
 rtl)i)i'al must be taken from a decision of tlie i the I'eace against defendant for an assault, and 
 Equity Court, under 4th R. S., c. 95, see. 75, the Justices, on hearing the evidence, dismissed 
 runs from the day on which the decision is pro- i his complaint, either deeming the offence not 
 noiinccd ; and wliere a decision was pronounced j)roved, or so trilling as not to merit j)unish- 
 on .Tuly "itii, 1S7.">, but the deciee, bearing <late nient. ]'laintiff tliereu])on a])i)ealed to tiie Su- 
 Marcli "27111, 187(), was enrolled Ajiiil .'ird, 187<i, premcCourt, and the Judge pre.sidingatAnnapo- 
 au ajjjjeal taken out on the last mentioned date lis dismissed his aj)peal, but gave him a rule 
 w:ts iield too late. tiini to bring the case for argument before the 
 
 Jiiirloii, Ailmr. v. liiu-ns, 2 K. &. C, .349. : whole Court. 
 
 //eld, that in a case of this nature plaintiff was 
 I not entitled to a))peal from the decision of the 
 VII.— FROM JU.STICE.S OF THK PEACE. , Justices of the Peace. 
 
 I Construction of .'{rd R. S., c. 1, s. S, 
 
 C/icxle;/ V. (iramic, 1 X. S. 1)., l!tl. 
 
 1. .\ffl<laTlt Tor appeal from Justices — 
 
 Tlie aliid.ivit fiM' ai)pt'al from a .hislice of the 
 Peace, in civil eauses, must be made before the 
 Justice who tried tin; cause. 
 
 Ciirnj V. A-</y(.s 4 H. & (i., .'il. 
 Hut .«. ,->lh R. S., c. 1()2, s. ;«. 
 
 >>. Aflidiivil r(»r appeal Trom Justices — 
 
 Misconduct of Justices Difeiidaut deinanded 
 an appeal from a judgment given against him l>y 
 two .lustic'cs of tlie Peace, and tendered tlie 
 proper fees to one of the .lusticcs for pieiiariiig 
 the statutory allidavit for the a))|)eal. 'I'iie 
 rtttidavit was jirepared, bm was svmhii to with- 
 out having been signed, and tiie Magistrates at 
 once issued executi(»i, under which defendant 
 was arrested. Defendant made an aliida\ it for 
 
 5. Justice of the Peace — Action a^ainnt 
 
 for refusing an appeal -Finding of jury on 
 question of malice —Plaint 'If Inoiight an action 
 against a Magistrate for maliciously refusing an 
 a]ipeal ; but, <in his direct exaniinalioii, stated 
 merely (hat he iiad demanded an ajipeal, and 
 tliat nothing further was said. Defendant >wore 
 that he did not hear the a])]ieal demanded. 
 Plaintiff's attiu'iiey swore that in the defendant's 
 liresence he had asked plaintiff if he had not 
 offered to make tiie alliilavit, and demaiuled an 
 a))|)eal. to which plaintiff hail ie]ilied iliat he 
 iiad done sn. The jury, in answer to tiie (pies- 
 tioii « iiether the .lusticc had lieeii reipiired to 
 ))ivpaie an afiidavit, said " yes ; " and, in answer 
 ajipial before a Magistrate who had taken no t'> th*' ((Uestion wlietlier the Justice iiad acted 
 pait in the trial, and the .Fudge of the County "itli nialice, leplieil '• ap|)aielitly " ; and they 
 Court, disliicl Xo. 1, set aside the jinlgmeiit of found a verdict for idaintitf 
 
 the .Magistrate and (piaslied the snmmons and 
 all proceedings thercuuiler. Piaintitf iiaving 
 ap]iealeil . 
 
 //(■/(/, tliat till' appeal must be allowed. Mis- 
 conduct of the Magistrates cannot give an appeal 
 independently of the statute. 
 
 The statute gives no autliority to any Magis- 
 trate to prepare the allidavit. other lliaii to tiie 
 one will) lias heard the eause. 
 
 Muir ft (il v. li'ti Ill-fill/, (i It. \- ( 
 
 Bnt«. .-.til It. S., ,-. )(»•_', s. ;u. 
 
 A rule being granted the verdict was set aside. 
 MrKciizie V, AfrKiii/, -A I!. .V C, 1 •_'•_'. 
 
 'i. Appeal from Justices Irrei^uliirltles 
 
 Cured- Wiieu tlie magistrate lief'ore wiioui the 
 
 0. \o service of summons - Walrer of 
 
 want of service —Defect cannot be taken ad- 
 vantage of V)y appeal -Certiorari proper rem- 
 edy Dct'endaiit was ))roseciiled under • hapte'- 
 lit, Revised Statuies (;hd series), for a lireach 
 of the law relating to the sale of intoxicating 
 '-''■ lii|Uors, There was im actual service upon him 
 of tile writ of summons, and flic afiidavit of the 
 constable verifying the return was infminal in 
 being intiluleil willi tln' suinanies only of plain- 
 tiff and defendant. Defendant having liecn 
 
 case was tried promi.sed to see the necessary eonvicted in his absence, apjiealed. ami filed 
 papers for iierfecting the apjieal filed, and after the neces.sary liond under the statute, 
 iiriiviiig tlie bond said it Was all light, the ap- //,-li/, that when an ajipeal is taken and per- 
 liillaiu will be entitled to his api)eal, tluuigh he fected from a decision of .histices of the F'eace 
 lias M,it made the allidavit rei|uiied by law. in a summary cause, the judgment belnw is 
 
 McKdji V. MiKini, '1 Thom., 7.">. thereby i';;.so facto vacated, and the case stands 
 
 for a new trial. 
 4. Assault - Action for before two Jus- Aho. that defendant having a))i)ealeil, and 
 tices diamisaed — No appeal allowed — 3rd R. , thus virtually appeariMl, and having avoided the 
 
79 
 
 APPEAL. 
 
 80 
 
 juilgiiiunt lit'low liy having taken an ini]i<irtant 
 stcj) in the uause, it was not conipetent tn him 
 to lepiidiiite the jurisdiction of tlie Court hclow 
 on the ground of want of personal service. Had 
 lie wisiied to avail himself )f sueh an ohjeetion 
 he should not have a|)l)ealeil, hut should have 
 sued out a wiit of ceifioriin. 
 
 On a second trial no anieuduicul adding or 
 suli>lituling a new cause of action or ground of 
 <lefcMcc will he allowi'd. 
 
 I'ei Willi ins. .1., dmeiifiui/. 
 
 A judgment gi\en as tlu; judgmcul in this 
 ease was, forms no exce))tion to the |)ri\ ilegc of 
 a)>|pealiMg coiiferi'iMl liy the statute, and to issue 
 a (7;7/«r»r( wouhl havi' heen uinieces.sary. .Judg- 
 ment hy defaiilt having lieeii given, defeiulant. 
 not lia\iiig heen duly summoned to appear, is 
 entitled to an appeal. The want of service of 
 the sunnnons alone is groiiiul f<U' reversing the 
 judgment helow. A dissatisfied party appealing 
 from ;i judgment so entered cannot he held to 
 wai\'c hi.s right to contest the validity of the 
 judgment, not having had an oppurimiity of 
 opposing the claim wiiich the judgment recog- 
 nizes. 
 
 Ji'mid \. Itochirell, '_• \. S. ]).. l!l!l. 
 
 this judgment, that no appeal lies ilireetly from 
 the decision of the two Justices to the Snj)ieinu 
 Court, tiie Court in a ca.se of this kiinl having 
 merely the right of revis;on of the decision nf 
 the sessions. 
 
 /'• ;■ iUiss. .1., the <luty of the Supreme Coini 
 is not to try the case, hut merely to say \\hether 
 oil the es idi-uce gi\en hefore the twii .lust ices, 
 their decision was right. l!ule ahsohiti'. 
 
 Ori'iserra iifllif I'darfar Grrriifif/d \. 
 
 On rscern of t/ic Pour for Gus/ifii, I Old., (ill."). 
 
 VHI. — KKO.M I'HOiIAlK ((tfitT. 
 1. .4iii(>iHlniont on appeal from I'robatc 
 
 Court " Adding new ground of ajjjieal 
 Terms — ( )n argument of an apjical from a decree 
 of thi'Ciuirt of I'ldhale. the Supreme ('(unt will 
 allow an anieiidmenl. adding a new gnumd of 
 apjieal. \\ lieu imt merely formal, to those already 
 taken : lait will in .such case give the opposite 
 side time to consider whethei' they w ill go on to 
 the argument. 
 
 //( ri' r.stiiti'of Rdlstiiii. •_' Thoni., .'i. 
 
 1. Xo witness prodiieed by plaintiff — 
 
 The Coml will not grant an appeal w here no 
 witnesses have heen produced hy the plainlill iu 
 the ( 'ourt heh)\v. 
 IJliss, J., tli-isi iitiiiij 
 
 MrCiil/i/ V. n<ir,iJ,il/. C.ichran. Si. 
 
 8. Objections to regularity of proceed- 
 
 ing.s before Justices — When to be taken — 
 
 t)lijcctions hy ap])ellaiit to the regularity of pro 
 
 cecdings before .histiees ninst be bioiight to the 
 
 nolieo of the Court during the tirst inuv days of 
 
 the term, and before the cau.se comes ou for 
 
 trial. 
 
 Gid/uiiii V. Lfi/iierri', dames, l;-i!l. 
 
 0. Order of Justices for removal of 
 
 pauper No direct appeal from to Supreme 
 Court — Two Justices issue^d a warrant for re- 
 moval of a j)a.:per from the )>oor district of 
 Greenlielil to that of (ioslien. At the next ses- 
 sions for the district of .St. Mary's (w itliin which 
 district both the districts of (ireentiehl and 
 Goshen \.ere situate) nothing was done in the 
 matter, but at the following session the ease was 
 brought u]) and the sessions "dismissed the 
 case w itliout decision, as not being legally be- 
 fore them." An ajipeal was then taken to the 
 Supreme Court and trial had at < iuysbor<iugh, 
 before Desliarres, ,]., who gave judgment for the 
 plaintiffs, contirining the order of the Justices. 
 Hlld, on arguinent of a rule nisi to set aside 
 
 2. Bond on appeal from Probate Court 
 
 — Form of The .fudge of I'mliatc icfused I" 
 grant an appeal from his decision, on thi' ground 
 that the boiiil. although in the form given in the 
 statute, dill not state what cause was |ieniliiig. 
 The appeal was then granted by a .fudge of the 
 Su|)renie Court at Chambers. 
 
 //I'/tl, that the bond was in the pidpcr form. 
 Ill ■/•(• Ii(i//i EKiair, •_> I!. \' O.. bSL' ; 
 I C. I,. T.. (iti.S. 
 
 3. Costs on appeal from Frobate Court 
 
 - 'flic .Supreme Court, on appeal from the 
 Probate Ciuirt, will exercise a discretion as to 
 costs, and will in general give costs against a 
 jiarty unnecessarily making or resisting a claim. 
 Entdte (if A/e.i(iiii/(T Mrlkiiiuld, .lames. I'J.'i. 
 
 4. Co.sts Probate Court -Appeal from 
 
 — Costs as against unsuccessful executor - 
 When a decree of a Probate Court is reversed a.s 
 against an executor lie will not in ordinary cases 
 be subjected personally to costs. 
 
 EsMe of C. McDonnltl, .Tames, .'U'J. 
 
 5. Grounds of appeal from Probate Coart 
 
 —Those filed only considered— The Court will 
 not consider other grounds of appeal than those 
 contained in the statement filed in the registry 
 of the Probate Court. 
 
 In re Estate ofJamis IV. lioi pe, R. E. D., 11)2 
 
81 
 
 APPEAL. 
 
 82 
 
 [X. TO TIIK I'KIVV t'DUNTIL. 
 
 1. Appoiilablc amount How made up— 
 
 All (inlir nf tifi' Muji'sly in CmiiiLil iillnwcd aii 
 aplifal t'niiil the jinlgmeiit of the Sii|)rcniu Coiirt 
 (if tliis I'l'iiviiK'i' to liiT.sflt' ill Her l'ii\y ('"Uiuil, 
 "ill tiise siKJi j ilj^nK'iit, ik'eiff, (inltT, ur .soii- 
 tcine shall involve diivelly or imlircetly any 
 (•l.iiiii. ik'inaiiil or ([Ufstion to or respeeting 
 |ii(i|ii'ity ill any civil rigiit aiiioiiiiting to or of 
 I hu value of t'.S(K) stg. (t'.'lT.") euireiiey. )" The 
 Mini to reeover u liirh the aetioii was liroiight 
 was t'.'UO eiineiiev ; lait aihliiig interest on tiiis 
 
 2. Appeal to Supreme Court of Canada - 
 
 In matter of discretion - /■/('/(/. iimler .see. •_"_' of 
 the .Siiprenie and ICxeheinier Court Act, no 
 ajipeal lies fiiim the jnilgnieiit of a Court grant- 
 ing a iie«- trial, on tlie gmiinil that tiie \erilict 
 is against the weight of evidence, tiiat lieiiiga 
 matter of discretion. 
 
 liiKih V. /'//(' Affi-c/idit/.f' Murine Jjiit. Co., 
 
 (1 It. >S: C, -JSS), 
 
 1 .v C. Pv., 110. 
 
 3. Appeal Original Court Hot a Superior 
 
 Court Judgment not appealable -Supreme 
 
 aiiiiiuiit from thedate of the writ until judgnient, and Excheqtier Court Act, s. 17. 
 
 lni.',tlicr with the costs of the successful party. //,./(/. on motion to i|uash, tiial an appeal will 
 
 increased tiie sum to (iver €."ilH) stg. Leave to not lie to the .Supreme Court of Canada in eases 
 
 Mppeal was granted, the res])ondciit Ipciiii; at in wliich the court of origiiiiil jurisdiction is not 
 
 lihcity to raise any iiuestioii with regard to tiie a .Superior Court, ami that tiie Court of Wills 
 
 appealalile amount liefore ilie I'rivy Council. 
 
 Tile ap])eal was not i>rosccuted. 
 
 Pti/if y. l lie I'tvtoii Slv<niil)o(it ('oiii/niiii/. 
 
 •-'Old.. ITii. 
 
 -J. (Osi.s raiinot be added to make up 
 
 appealal)le amount -VvjiWr', costs in a t'ause 
 caiiiint he added to the anioinit claimed for tile 
 piil|iiise of hringilig it up to the appealahle 
 aiiiiiimt. 
 
 Jinrii.i I'/ (il. V. Riilmrdi. 1 X. S. {).. ."iUi». 
 
 ». The PriTj Council will exerei.se its 
 
 and Proliate for the County of Luiieiilpurg. .\'i>va 
 
 Scotia, is not a Su])erior Court wiliiiii themean- 
 
 iiig of the ITtli section of •■ Tiie Supreiiic and 
 
 K.xcheipier Court \v\." (.SSVic, v. 11. s. 17. D.) 
 
 i III rt- Will iif' IS tiiiii.1'1 Miinliicii, 
 
 .•{ K. .^- C, 4'->7), 
 
 Jiciniii.'i/i V. Kiiiillii'r/;, ;! S. C. 1!,. ~iH. 
 
 A. Award Addin;; grounds or objection 
 
 on appeal //(■/(/, tliat where tlie rule (//</, 
 to set aside an award, specilies certain groiilid.s 
 of (iliicction, and no new grounds are added \>\ 
 
 discretion in deciding a case on its merit.s, way of amen.lment in tiie coi.rt helow, no otiier 
 
 wiijioiit regarding .strictly the precise terms of ground of olijectiou to the award car, he rai.sed 
 
 tiic pleadings. ,,„ appeal. 
 
 MiLi-dii V. McKitii, not rvjmrtcil heloir, 0<//,v.t v. The Cilii of /falifax. \ S. C. 1!.. (140. 
 L. 1!. .■) 1'. ('., .■(•_': : 
 
 ■_".» L. I".. ,•{.■.•_>. 5^ fji^p^ adding formal Judgment of 
 
 I. Tlie I'rivy Council heard an appeal Court below to Hiring of appeal allowed to 
 
 tinman niijer of tlie .Supreme Cmirl of Xova stand over till i-ase perfet'led by the addition of 
 
 Srotia. settinga.side pleas and aUowedtheaiipeal l''*^' formal jmlgmelit of the Court below. 
 
 cdiiditiniKillv. Keaniii/ v. Kcnn. ,///i Fih., IS7S, 
 
 \ .)fcSivi'i'iwi/ V. WiiUiiir. •_• Old., XVI). Cas. Digest, .'l.S.S. 
 \V<ill,i,; V. Mr.Siniioi/, L K. -2 v. ('.. 1S(». 
 
 0. Case, adding formal rule of Court 
 
 FOl! LIST OF CASKS Al'l'I'.ALKD TO THii below to- -Apjieal placed at foot of li.st for hear- 
 
 I'KIVV COUXCIL— >•',. AI'l'HXniX. iiig to permit the rule of Court belov ajj^iealed 
 
 from to be ailded ; oouirsel for respondent con- 
 
 seiiting. 
 
 Il'iil/(iie\. Sou//irr,.;'li Fill., is:s, 
 
 X. lO THE SUPREME COURT OF •'''• '^'«''''^' •^^'^- 
 
 1. Conviction for violation of license laws 
 
 !• Appeal -Final Judgment—Demurrer— —Habeas Corpus, motion for —Judgment dis- 
 
 Matter of practice- //eA/, an order setting aside missing not appealable when prisoner is dis- 
 
 u dfnuiirer as frivolous and irregular under the charged before appeal— Jurisdiction -4th R. 
 
 Xova Scotia Practice Act, is an order on a S., c. 75 and c. 99 — Costs— The prisoner, .Simon 
 
 mutter of ])ractice and not a final judgment Fi'aser, had been convicted before K. A. Laurence, 
 
 ivppeal.ihle under the 11th section of the Supreme Stipendiary Magistrate for the Town of Truro, 
 
 iiiiil Hxcheiiuer Court Act. "f violating the license laws in force in the town, 
 
 {^lorrisoii \. Kii)iflirk,'2R. fi C, US), and was lined .*40 and costs as for a third 
 
 Adiidivk v. Morrisou, '2 .S. C. R., I'i. oft'ence. E.xeculion was issued in tlie form given 
 
83 APPEAL. 84 
 
 in 4tli ]{. S., L'. 7">, iiiuU'r wliicli Fivisfr was appelliint, to recover one liuiitlred and twenty- 
 committed to jiiil. Wliile there lu! was ooiiviet- live barrels of flour. The plaiiilitl's were in- 
 otl of a fourth oU'enee and lined SSU and costs, ^ doisers of a bill of lading of the goods sneil for, 
 and was detained under an execution in the ' whicli were held by tiie defendant as freigiit 
 same form. Tlie matter came before tlie Su- agent of the Intercolonial Railway at Truro, 
 preme I'ourt of Xova .Scotia on a motion to. The action wa.s begun on the !tth ilay of Ajiril, 
 make absolute a rule HMi" granted by Weatherbe, I A. 1)., 18><l, and the goods wcrt' leplcvicd and 
 J., undei' ttli 1!. ,S., (.', !K). " Of .Seeming the tlie writ was served ujion the defendant on the 
 Liberty of the .Subject." The rule was (lis- same ilay. 
 charged. A default was marked on the •J.")th April, ISSl . 
 
 It ap])eareil that bifore the institution of tiie Sulisccjucntly, on the Kith day of .Sfptumber, 
 appeal to the Supreme Ccuiit of Canada, the I SSI, the idaintiU's' attorney caused to be issued 
 time for uhiiii tiie ap)n'llant iiad been iiii]irison- a writ of in(|uiry, under which damages were 
 ed li.id expired and he was at large. assessed under tlie provisions of Uli R. S., c. 
 
 Oh motion to dismiss the appeal for want of ((4, s. .")(>. 
 jurisdiction, Ui'ld, that an appeal will not lie in .An ordi'r nixi for the ])urpose fif renioviiig the 
 any case of ))idcct'diiigs for or upon a writ of default and letting in the ilefeiidaiit to del'c.al, 
 habffm ciir/ius w hen at the time of 1 ringing the was taken out on the 1 1th October, ISSl . and. <.ii 
 a))])eal tiie a])p<>llant is at large. 'argument, was discharged with costs by an 
 
 ,\l)l)eal disniisscd. The (pieslion of costs was order of Mr. Justice James, presiding at 
 reserved and subseijiiently the ("oiirt ordered Chambers. 
 
 that the ri'spondeiit slioiih! be allowed his gen- ■ Vroin the last named order an ajipeal was iiail 
 eial costs of the a|)peal. ] to the Supreme Court of Xova Scot ia, w liicli 
 
 (1)1 ri' Simon Frnser, I R & (!., XA), | contirmed the judgment. 
 
 Finscr V. Tiipper. Jl^f Jiim , ISSO, I ,Scc. 7.'), of c. 'M, of 4tli R. S., eiiarts that " it 
 
 Cas. Digest, •240. ' shall be lawful for the Court or a .liidge. upon 
 
 such terms as to costs or otherwise as they 
 
 sliall think lit, at anv time w itiiin one vear after 
 
 8. Court E(|lially Dlvidod Now Trial ,i,„a judgment, to let in the defcndalit in any 
 ordered Th.> Coint l„iiig cjiially divi.led, a ,^,.,i,,,, „r appeal to defend the .same, upon an 
 new t rial was or.I.rcd. apiilication. supported by sati.sfactorv atiidavits. 
 
 Thr C,mU'<l,ralu.n Lif,' Amnwtwi) of Cmmln .„.,.,„„„i„^, f,„. |,is noii-ai.i.earance, and dis- 
 V. 07;o»/«'//. i;{S. C. R., •_>!«. ^.j^^_^jli^ ,^ defence up.m tlie merits witiitiie 
 
 j particular grounds thereof : and atiidavits shall 
 
 „ _, ., _ .... „ , , - ., Hot be receiveil in re])ly unless the Coiilt or 
 
 ft. Elcrtlon Trl tion Extcns on of lime , , , „ ,, it,. 
 
 ^, . n T , T^ t> ^. Judge shall otiierw ise order. 
 
 tor service -Discretion ot Judge -K. a. (J., ,, ,, ^i o ,• j r /~< i 
 
 - .. , , , . On (ipiipiil to the Supreme ( ourt of Ciiuddii, 
 
 c. 9. s. 10 — .\n order exteiidiii}.' lime for service ,, , , , , ■ i . i ir 
 
 ., , 7, , . , . y/,/f/, that ilie ludgmentaj)l)ealedfroni wasiiot 
 
 of an election iietition (ilfd at Malitax from hve ., , . , .., . ., ■ r •> 
 
 ., .r 1 , ,11 'I hiial pidgmeiit within the meaning ot sec .1. 
 
 days to hfteen (lavs, on the L'roiind that tlie re- , , '. /, , , . i . i- \^,-,\ 
 
 ' '^ f of tiie Supreme ( ourt AmeiKlnient .Act ot ISi'.l. 
 
 spondent was at Ottawa, is a iiroper order for , , , , 
 
 I , , . . , .',.,. and was not aiJlieaiable. 
 
 tie .Judge to make in the exercise ot his discre- ,» . > . .i . !■ ^i /-. . ii . . ■ 
 
 ■ Held, nho, that it the Court could entcitiim 
 
 tioii undel- R. S. C., c. !1, s. 10. , i .i ., e \ \ 
 
 . ,„ , , the aiilieal. the matter was one ot lirocedure and 
 
 .9(=«|W. . /,. /• Rituhie. C. J. and Jrelirv, J., that . ',' .... ., ,. .. , ,, ,. 
 
 ' , , r entirely within the discretion ot the louit 
 
 the (ourt below had iiower to niakt^ rules for , , " ,,,./, ,. ,, . ■ , t 
 
 , ' , , below, and this C ourt would not intertere. 
 
 the service of an election iietition out of the , i i- • i -.i 
 
 ' Alipeal dismissed with costs. 
 
 lUrisdullon. ,^ ,-r; ; • < d « , • 1,'v, 
 
 Pif .Strong, J. — .-Vn extremely strong case ^., , ■ J, , i \- i ,o^. . 
 
 , , , . , ,, (iladinn v. Cummun/s, .Ird i\oiendni\ /."^x,. 
 
 should be sliov.n to induce the Court to allow " ,• i> . oi- 
 
 l as. 1 iigest . _4.>. 
 
 an a|)peal from the judgment of the Court below 
 
 on lueiimiiiary objections. jl^ Interim injunction obtained ex parte 
 
 Rolierlnon v. Laurie ef «/., 14 S. C. R., '2r-,S. _Order dissolving— No appeal from— This was 
 
 an action of trespass, brought by the plaintilf 
 10. Final Judgment -- 4tll KCT. Stats., C. against the defendants on the 10th of October, 
 94, 8. 56 -Order of a Judge refusing leave to 1884. In the statement of claim plaintiff claimed 
 defend, after judgment entered by default— damages for the alleged acts of trespass, and an 
 Procedure — This was an action of replevin injunction to restrain the defendants from pro- 
 brought in tiie Supreme Court of Nova Scotia | eeeding with the digging of trenches and laying 
 by the plaintiffs against the defendant, and of pipes. 
 
85 APPEAL. 86 
 
 An cr/mr/e rest niiniiig (inUr WiiH ^ri'aiitiMl liy t.1. Orrtor Of Court lipoil l(S OWIl ofllcrr, 
 
 the Chief •Tiistici- of Xovii Scotia, nil tlir apiilim- when obtiunecl by a third jmrty, is a final 
 
 tidii of plaintitV's counsel witlionl nolieo to tlie order appeilable under Sec. 11 oi' 38 Vict., 
 
 defendant, and on tile atlidavit of t lie plaintitl' c. 11 — Interest on deposit in Court I'lidcr .'U 
 
 alone. ^■ict., c. I'J, aiiil 'M Vict., c. l."{, the Mjni^teI• of 
 
 On the ISth day of (Iclobci. notice of motion ].||),li(. Works of the I)oininion of ( aiiad i a))- 
 
 was .served on tiie jdaintitr to set asi.le said ,„.„,„.iatc.l to the use of tiie DoiiiiMioii certain 
 
 restraining order, and on aignineiit of tiie motion |.„„|,, ;„ v„rniontli ( •..iinty, known as " I'.iiiiker's 
 
 liefore Mr. Jnstiee Tlioni)).son, an order passe.l jsland." In accordance witli said .Acts, on the 
 
 on tiie '.'.'.ti: day of Octolier, I.S,S4.dissolvinj,'said -j,,,] Ajiril, A. 1). IST.'i, lie paid into the liaiids 
 
 ''i.i'i'"'i""- of \V., prothonotary at Halifax, the sum of 
 
 Kroiii this order the jilaiiititV appealed to the .stJ.lsO as eoinpeiisation and interest, as ]iiovided 
 
 .Viiprcnie Court of Nova S.'olia siltiny /// /w»c(> ],y ,i,„^,, _\^.ts, to be thereafter approiiriated 
 
 On lliel.'4tii .laniiary, ISS.'., tliat Court made an ,,iiiont; the owners of said island. This sum was 
 
 order dismissing tlie said appeal. |,,^j,l .^^ ^..veral times, by onler of the .'Supreme 
 
 0„ fi/>/i'ii/ /n /Ik Siipnwi r,„irf <i/<'>nif,i/ii. (.,„„., „f _y,,^..^ Scotia, to one A., as own.r. to 
 
 J/M, that theorder of the .Snpr.nie C.mrt of one (i., as iv.ortgigee, and to others eiiti'led, less 
 
 Nova Scotia was not one from uliid, an .ii-peal „,„ ,i,,iiars. As the money had remained in the 
 
 wmdd lie. hands of \V.. tlie lu-othonotarv of the Court, for 
 
 hiiiriivi/ \ . J)i< /iSini, S//i A/Ill/, ISS.'i ,, ,, ,. ■ 11, .1 
 
 • • .some time. M., attorney tor (..,ap]ilied to the 
 
 (as. Kiliest. 'J.'lll. , . . <■ 1 c .1 /• . II- 
 
 Sn|iremi' ( oiirt for .in ruder ot the ( ourt calling 
 
 !'.!. liSU'llOS Poinf of prarlice -.\ can.sc njion \V.. the prothonotary, to imy over the 
 
 liciiii.' tricil lieforc the .liidi.e without jury, a interest njioii (i.'s proportion of the moneys 
 
 linding for defendant was lileil December ."ith. which interest (Fl. was intorined) had liceii le- 
 
 aiid a rule beiiii; refused was taken out under c<Mved by the prothonotary from the bank wiieie 
 
 llic>latut<' 1>ecemlier llth. w iiiih rule was. on he ii.id pl.iced tiie amount on deposit. W. re- 
 
 .lanii.iry 4th. dis(ji;,ii.'ed. tiif liail-liond lieiiig sisted the application, on the ground that he 
 
 difcilive. I'lainliir gave notice of appeal .lanii- was not answerable to the jiroprielor <if the 
 
 ary I'itli, aiiil on the same day obtaineil a rule ))rineipal. or to the Court, for interest, but did 
 
 )i/.</ for ,1 double ap))eal from the decision refusing not i!en\ that interest had been received by him. 
 
 to L;i:iiit a riih iii.<i. and t lie decision pronouncing .\ rule ni-o was granted liy the ( 'ouit and made 
 
 llic bail insnliicieiit. (.lanuary 4th.) The Court ab.solute. ordering the iirothonotary to )>ay 
 
 discharged the rile on the ground. — as to the whatever i.ite of interest he received on the 
 
 lir.-l appeal, that the notice was too late under aiiioiint. 
 
 the I>oni. .\ct of bST.'i. c. II. s. "Jl. and, as to Hi'l(l~\. That the iirothonotary was not eii- 
 
 ihe second, that it was an appeal on .i ]ioint of titled toaliy interest which the amount de]iosited 
 
 practice, involving, it was true, a liiial juilgnieiit. earne(l while under the control of the Court, 
 
 but a judgment given December ."it h. and left to That, in ordering the ]irothoiiotary to )iay over 
 
 its operation by plaintitV's ilefault. the interest received by him, the Court was sim- 
 
 Fti7:<itf/i V. Simioiiih, 'A I!. iS; (',. ilT. ply exercising the summaiy jurisdiction which 
 
 1:{. Xew trial ordorcd by Court below ^■'"'■'' "^ "'" -^'Mx^^'i.ir Comts has ..ver all its im- 
 
 Verdict against weight of evidence //W</, ""■''*''"' "*"'''''^- "'">"""•■• "'"' "^■"'y' •^•^■' 
 
 that the Suineiiie Court will not hear an ai>peal '''•«''"''''.'/• 
 
 when, the Court below, in the exercise of its -• ''"''^" t''^' '"'''■'■ ^'l'l"'''l'"l f'">". l'<'i"K ^ 
 
 discrction.hasordered a new trial on the ground •'''^•i^'"" '"> '"' 'q'!''"^^-^''"" '-y a third party to 
 
 that th. verdict is against thewei^dit of evi- ""' <"<"t. wa.s appealable under the llth .see. 
 
 , I, ,,„,,, of .'{.S Vict., e. 11, Fournier, .1., f//s.<(')//im/, and 
 
 lu<r,-k„ Woo/iei, Mills Co. v. .l/i«,s 1 1 S. C. R., !»1. '''•'■^^■I'^^'i''i". •!•• <li'l'if""f>'- 
 
 ( In re Ituiikcrs lnhnuK '.\ K. k ('., .'{(iT), 
 
 14. Objcrtton taken for llrst time on n i//,m< v. r,Vv/(/(,?, .s s. ( . K., jo.}. 
 
 appeal — In an action on a bail-bond, the defence 
 
 was, that it, harl been altered after execution, 10. Queen's Counsel, HO pOWer tO ap- 
 
 and that it was not in the form reijuired by the point— 37 Vic., c. 20 and 21, N. S., ultra vires 
 
 statute. //"A/, /»/«/• «/t'/, that the objection as — Letters patent of precedence, not retrospec- 
 
 tn the form of the bond being merely technical tive in their eti'ect — Great Seal of the Province 
 
 and uiiiiieritorious, could not be taken for the of Nova Scotia — 40 Vic, c, 3, D- Appeal — 
 
 first time before the Suiireme Court of Canada. Jurisdiction— My 37 Vic, c. 'JO, X. S., (IS74), 
 
 {ilickif of fil.v. J]'(,o(la-or/het al., ' R. &(',., 'Mi), the Lieutenant-Governor of the Province of 
 
 Woodirnrth v. Dlclii , 14 .S. C. R., 734. Nova Scotia was authorized to appoint Proviu- 
 
87 
 
 APPEAL. 
 
 88 
 
 ciiil (illu'iTs uiidi'l- till' Miiiiic of lli'f Majesty's 
 couiisi'l. Uiinicil ill tlif liiw fdi- tlic I'ldxiiuc. 
 liy .T \'ic'., c. •_'!, \. S., (I.S74), tliu Licutinaiit- 
 (lovfi'iior was aiitlioi'iwd tii grunt to any nitiii- 
 lier iif tin- li.ir a patent nf plfecilcniv' ill tlie 
 ("dlll'ls lit' the l'l<i\ incc ot' \'(i\a Scotia. 
 
 I!., llie re>|Hiliilclit , Mils a|)])iiililc(l liy llic 
 ( J(ivi'iiii>i--(lem ral on tliu I'Ttli I )L'it inlicr. Is7"_', 
 timlfl' till' ureal Seal of Caiiaila, a (,liieeii's 
 counsel. aii4 liy the iinifoiin praeliee of the 
 Coiii't he had piviedeiiee over all nieniliers of 
 the liar not holding |iatenl,s prior to his own. 
 i!y letters patent, dated •.'(Ith of May, IsTli. 
 under the lmi'iiI Seal of the l'ro\inee. and >igned 
 liy tin' Lieiiteiianl -( iovernor and i'ldvineial Sec' 
 ivtary, .several nieiiilpcrs of the liar u ere appoint- 
 ed <,»IU'en's eoMllsel for Xova Seotia. and prered- 
 ellee was granled to tlielii. as well astootiier 
 (^•ueen's Coinisel appointed hy the (eisiinoi- 
 (ielieral after the 1st of .Inly, |S(I7. A list of 
 <^(lieeli"s ( 'oiin.vel to wiioiii precedenre iiad heen 
 thus gi>-eii hy the l.ieiileiiant-l io\ eriic!i'. was 
 jniliiished in the lioijttl (!a~vtlvt\i the '.'Tth May, 
 l.STli. iuid the name of i;.. the rfs])(indeiit , was 
 ineliided ill tin list, Init it gave preeedenee and 
 pre-audieiiie Ijefore hiiii to several persons, in- 
 eluding ajipellants, who did not enjoy it liefoie. 
 
 rpoii alliilavits disrlosing the aliovt' and other 
 faets, and on produeing the original coinniissioii 
 and letters jiatelil, !■[., on the .'frd .laiuiary, 
 KS77, obtained a rule //Mj to grant him rank and 
 preeeileiiee overall (^liieen's ( 'oiinsel appointed 
 in and for the I'rovineu of Xova Scotia since the 
 '2(itli Deeeinlier, lS7l>, and to set asiile. so far as 
 they atFected ii's precedence, the letters jiatent 
 dateil the '-'(ith .May, lS7li. This rule was made 
 alisoliite hy the Siipreine Court of N'ova .Scotia 
 on the'JIith .March, 1S77, iiiid the decision of that 
 Court \ias in snlistaiiee as follows: — 1. That 
 tlielelte;s patent of precedence, issued liy the 
 Lieutenant-* iovernor of Xova .Scotia, were not 
 issued under the great seal of the Province of 
 Xova ,Scoti;i : '_'. That .•{7 N'ie. o. ■_'(! ^S: 'JI , of the 
 Acts of Xova .Scotia, were not nUra lircs ; 
 3. Tlmt sec. L*. c. •_>], ;{7 \[c. was not retro- 
 peetivc ill its ell'ects and that the letters patent 
 of the 'Jdt.h .May, IS7(>, issiieil under that Act 
 could not atlect the precedence of the respondent. 
 
 On 'lie argument in apjieal liefore the Su]ireine 
 Court of Canada the (luestion of the validity of 
 the great sealof tlie Province of Xova Scotia was 
 declared to liavc heeii settled liy legislation, 40 
 Vie. c. 3, 1). and 4(1 Vic. c. 2, X. ,S. A pre- 
 liniinarv olijcction was raised to the jurisdiction 
 of the Cfiurt to hear the appeal. 
 
 Held, 1. That the judgment of the Court below 
 was one from which an appeal would lie to the 
 Supreme Court of Canada. P'ournier, J., (lis- 
 aentiny. 
 
 •J. /'cr St rung. l''oiirnierandTasclicreau,.)J.— 
 That c. •.'!, .'(7 \'ic. X. S., has not a retrospec- 
 tive ell'ect, and that till' letters patent issued 
 under the authority of that .Vet could not atlect 
 the preceileiice of the (,>iieeirs Coiiiis(d a|ipoilited 
 liy the ( 'row 11. 
 
 ;{. Per Henry, Taschereaii and <l\\ynn, .1.1. 
 --That the liiitish Xorlh .\nierica Act has not 
 investi'd the Legislatures of the I'idviiices with 
 any control over Ilie appointment of (,>ueeii'8 
 ( 'oiiiisel, and as Her .Majesty forms no ])art of 
 the I'ldvineial Legislatures as she does of the 
 |)oniiiiion Parliament, no .\ct of any such Local 
 Legislature can ill any niaiiner iin|)air or atlect 
 her prerogative right toiqipoiiit (Jticen's Counsel 
 ill ( .inada directly, or through her representa- 
 tive the ( iovernor-< ieiieral, or vest such ])rero- 
 gative right in the Lieiiteiiaiit-( loveriiors of tlie 
 Provinces ; and that .■!7 \'ie. e. •_'(! and •_'! N'. S. 
 are iilini cires and void. 
 
 4. /'• /■ .Strong ainl [•"oiiiiiier, .1.1.- -That as 
 this Court ought never, except in eases when 
 such adjudication is indispensalilc to the ileci- 
 sioii of a cause, to pronounce upon the constitu- 
 tional power of a Legislature to pass a statute, 
 there was no necessity in this case to e.vpress an 
 opinion upon the validity of the acts in ipics- 
 tioii. 
 
 ( Li rr I'rerclnwe of Jiitchic '2 R. it ('., 4.")0), 
 LciHiirw llililiie, .'< .S, C. P,,, ,")7."). 
 
 II. Kaihvay .Vets of Xova Scotla-Rall- 
 
 way, appraisement of lands for -Order to set 
 aside proceedings- Estoppel -Judgment not 
 appealable This was an ap))lication to the .Su- 
 preme Court of Xova Scotia, asking it to set aside, 
 in a smimi.iry manner, the whol(Mi])i)i'aiseinent of 
 land damages awarded to lie Jiaid by the County 
 to the sexcral proprietors of lands in I'ictou 
 County, whose lands had been e.xjiropriated for 
 the line of railway extending from Xew (llasgow, 
 in Pictou County, to the Strait of Canso, and 
 known as the Eastern Extension. This appraise- 
 ment was made on the assuui)ition tlvat uiuler 
 the contract with the Xova Scotia goveijiment 
 for the ciiiistruction of this line of railway, and 
 the .statutes relating thereto, and providing for 
 the expropriation of lands for right of way, etc., 
 appraisement of damages or eonipensation to 
 the proprietors, and payment thereof, the right 
 of way was furnished to the company free, and 
 the compensation for land damages was to be 
 paiil after appraisement in the manner pre- 
 scribed, by the custos of the various counties 
 through which the line ran, issuing debentures 
 for the amounts due to the proprietors, which 
 debentures were to be redeemed by means of 
 local taxation. 
 
 Before tlie Provincial Government of Xova. 
 
«9 
 
 APPKAL 
 
 •JO 
 
 Scdtiii liad c'litiTfil into tlic ccnitiMct for tlic 
 constnictioii nf tlic Km.sUiii Kxtfiisiiiu line, iunl 
 while tliey wiiv iiti,'iitiiitiiij,' lliircfor. lliu Novii 
 Srotia L(jj:isliiiiiii', oil tlif 4ili Ajiril, l.s7(i, 
 
 passcil i:. ,'i nt the Acts (if ISTl), In I'll- 
 alilu llii; gdvoriiiiiciit to I'liliT into a coMti.ut 
 for tliu coiistriR'tioii of tliis liiif of lailuay, ami 
 made provision tluTi'liy for the |)ayiiifiit of a 
 siilisiily ami ^'raiit.s of laml to tliosi.' uiulcrlakiiiL; 
 it, aiiil for the cxiiroiiriatioii of laml for the 
 i-i;,'lil of «ay for tiic liiii'. 
 
 On lli(,' .same date, e. 74 <if llie A<ts of ls7(i, 
 was pasNcd, and, in onler to incorporate and 
 ),'ive any eontraelors whose tender for construc- 
 tion siionld thereafter lie accepted the same 
 eorporalu jiowers and jirivileges as those iiieii- 
 tioiied in V. 74, e. 4 of tile Acts of lS7t) was 
 |)assed, 
 
 i'.y sec. 'Mi of c. 74, ami also hy see. (i of i-, .'i 
 of the Acts of IS7(i, certain sections of >■, ~l) of 
 ;{i(l It. .S., are incorporated in these enactments 
 and iiiaile applicalile to this line of railway, 
 which sections more particularly relate to the 
 liiiide of aeipiiring lands for tiie rii,'lil of way, 
 stations, etc., tile jirocediire for appraising 
 <laiiuiges, and the mode of assessing the various 
 counties f(jr the jiaynieiit of the amounts 
 awarded. 
 
 ('. 7'>of .Srd R. .S. eoni])rises in consolidated 
 form all enactments in force in Nova ."scotia at 
 that date, relating to provincial railways. For 
 convenience, the various railway eoniiiaiiies in 
 Xova .Seolia, such as the Wimlsor and Annapolis 
 Railway t'oni])a'.iy, the Western ('(unities Rail- 
 way Conijiaiiy ( .^^ i c. ;{4, Acts of KSliS ; e. SI, 
 Acts of l,S7<t), have, in obtaining their acts of 
 incorporation, availed themselves of similar 
 clauses from e. 7<l(jf ,'ird R. ,S., Iiy e.xiiress enact- 
 iMcnt, without rejieating tlieiii in the Act or 
 ))idviding other niachinery for the e\|(ro]iriation 
 of lands, and the ascertaining of land damages. 
 Wiicii the 4tli scries of the Rev. .Slats, was 
 ]iieiiare(l, certain Acts of the Province not re- 
 enacted were continued in force, and among 
 them so mtich of e. 70 of the 3rd .series as was 
 therein specitied (■■«i the Act to provide for the 
 puhlication of the t'on.solidated .Statutes, .SOth 
 Ajiril, 1.S7.S, 4tli R. S , jiage •_>). 
 
 Mr. Harry Alibott, having entered into the con- 
 tract with the government for the construction of 
 this line, sought, under e. 4 of the Acts of 1 870, in- 
 corporation and the benefit of the provisions of o. 
 74 of Acts of 187(), and obtained a certificate of 
 incorporation under the name of the Halifax 
 and Cape Breton Railway and Coal Comp,iny. 
 
 The Company was organized under this Act, 
 iuid the right of way having been obtained under 
 tiie statutes, the damages were appraised and the 
 ^V(irk of construction began and was carried on. 
 
 In |S77 an order was made liy t he ( 'hicf .1 lls- 
 ticc of the Supreme ( 'ourt of .Nova Scotia, on t he 
 ])etitioii of a number of the properly owners 
 whose lands would lie atlected by the building 
 of the railway, directing the ])roth(inotary of the 
 1 oiinty to draw and strike a jury, under t he pro- 
 \ isioiis of c. ~{) of .'ird R. .S., to appraise the 
 lands and property taken for the purpiisc of the 
 Ivistern Kxtciision Railway. 
 
 In IS7S a rule ;/(.•!( was taken to set aside the 
 whole proceedings, but a year later it was dis- 
 charged on mot ion of the party who had obtained 
 
 it. 
 
 A (|Uestion having been raised as to llu^ 
 
 validity of the incorporation of the (dmpaiiy 
 under c. 4 of the Acts of I.S7ti, by the Local 
 (lovernment, and legislation being about to be 
 passi'd to remove such doubts, another rule was 
 obtained in 1S70, on the gromid that llie Hali- 
 fax and Cape Rretoii Railway and Coal Coinp.iny 
 had no h'gal existence. After the .irgumcnt of 
 this rule, and before judgment, elia|)teis lib and 
 70 of the.\cts of 1S7!) were passed by the bcgis- 
 latuie of Xova Scotia. After hearing the custos 
 of the ( 'oiiiity by counsel liefore a committee of 
 the Legislature, two sections of the Ad were 
 added in the interest of liie County. 
 
 'I'lie .Supreme Court of N". S. In/il, that tlie 
 (.'oiintyof I'ieton was estojiped by these statutes 
 last mentioned from disputing the a])praisement 
 of the lands taken, and I ly tile issue of debentures 
 by the County to ))arties to whom d.unages had 
 been awarded for the lands appropriated to the 
 railway, some of whicii had liccn iiidoised to 
 third parties. 
 
 Oil ii/i/ii'i/ t(i ill' Sii/iri nil Ciiiirl nf ('niinihi. 
 
 Hill/, that the judgment of the Court below 
 
 was not one from w liieh an appeal would lie, there 
 
 being no finality about the order made by the 
 
 Chief .Tust ice of the ('ourt below in |S77. whicli 
 
 was w lull tills appeal sougiil to set aside. 
 
 (Ill re I'ictoii Jidilw.:;/ Dnmiii/i.f, 1 1!. \ <I..44S), 
 
 Hocldn V. Hiilifii.v mul C'li/ic Jiii'loii liiiilirmi 
 
 (iiid Colli Com/xnij/, "ilh Oct. JSSii, 
 
 Cas. Digest, -JH'. 
 
 18. Rule rescinding ex parte order ex- 
 tending time for service of petition — S. C. 
 A. A. 1879, s. 10 — The petitioner, on an e.v 
 parte application to a Judge of the .Su])reiiie 
 Court of X. .S., obtained an extension of time 
 for service of the jietition. but subse(|ueiitly, on 
 application of respondent, on cause shown, the 
 Judge rescinded the order asmado improvident- 
 ly. (Jn a second application made p.iyj^fWe by 
 jietitioner, supiiorted by atiidavits, the Judge 
 made another order extending the time. The 
 respondent then obtained from the Judge a rule 
 nisi to set aside this second order, and such rule 
 
91 
 
 APPEAL. 
 
 92 
 
 was iiiiiilc iilisdliilf l)y llif full ('i)nit, mi tlie 
 griiiind tliiit iill tlic fiu'ts (in \\ liicli tlit' nucihkI 
 ui)pli(iiticiii wiis li.isiil wore in tlu' kimw Icdgo nf 
 the |i('titi<iii< r w lull tlu' lii.st <i|i|ilicatli>ii was 
 iiiaiU'. 
 
 Ilild, l^'cpiiiiiiii' iunl lliiiiy, .J. I., tlisxeiiliiiij, 
 tlmt the rule of the Siipiuinu Court of N, S. was 
 not a jiulgnii'iit, rule, iinlei-, or ilui'isioii, on a 
 jii'i'liniiiiaiy olijwtion from wliicli an a|)|H'ul 
 would lie under s. In, S. C. A. A., isTil. 
 
 (Dickie V. U'twil Hill til, 4 K. & (J., l.'tO), 
 
 iKiiii,s CiJ.,y, X., EUiliui, (.'>i,ir), 
 Dichif V. U'ooilirorf/i, S S. ('. I!., !!(•_'. 
 
 CliainlieiM the rule must he diawn up upon 
 reading all felevanl allidavils w hicli were used 
 there in olitaining tiie older ;/ii(. 
 
 Foxier V. Vliainhi'iH, 1 R. k C, 254. 
 
 2. Appeal from JlIStlC«-The atlidavit for 
 ajipeal from a liustiie of the I'eaee, in eivil eases, 
 must he made hefore t he .lustiee wlio tiied the 
 
 eause. 
 
 Ciii-rii V. Lc<r m, 4 K. & (1., .Si. 
 
 Iiut NM .".th 1!. S,, e. \U-2, s. M, where it is 
 
 provided tiial the atlidavit for appeal or fol' a 
 
 « rit of capias may lie sworn hefore any .lustii;e 
 
 of the I'eai'e. 
 
 1)K KhIp or order setting aside ,|iidji!;inen( 
 
 and execution -Appealalile -T. .1. W. sued l". 
 B., and, on !llh .I'ine, IST.'J, F. I!, assigned iiis 
 property under tiie Insolvent Aet of IS(i!l. On 
 (ith August, 1". I>. lieeame a ]>arty to a deed of 
 composition. On tiio 17th Oitolier, F. 11. plead- 
 ed />»/.< (Iiirreiii vont iiin<uitf, that sinee action 
 eonmienced lie duly assigned undt'i' tlie .U't, and 
 that liy deed of eoniposition and diseliarge exe- 
 cuted liy his creditors he was dis^/jiarged of all 
 lialiility. On liie ISth .Voveinher, 1«7,'?, the In- 
 solvent Court contirmed tiie deed of composition 
 and F. H.'s ilischarge, hut F. IJ. neglected to 
 plead this continuation, .ludgnient wa.s given 
 in favor of T. J. W. on tlie ;i(lth .lanuary, 1S74. 
 On .'iOth May, l,S7t), an execution under tiic 
 judgment was issued, and on the l-'Sth .huie, 
 lS7'i, a rule iiiai to set aside proceedings wa.s oli- 
 tained ami made ahsolute. 
 
 Jlt'ld, reversing the judgment of the .Supreme 
 Court of Nova .Scotia, that F. 15., having neg- 
 lected to plead his discharge liefoie judgment, 
 as he might have done, was estopjied from set- 
 ting it up afterwards to defeat the execution. 
 Strong, J., (bm'ntiii:,', on the ground that the 
 rule or order of the Court helow was not one 
 from which an apjjcal coidd he lirouglit under 
 the .Supreme and Kxche<|uei' Court Act. 
 
 Walhce v. Jiussom, (•_' R. & C, 419), 
 2S. C. R., 488. 
 
 20. Stay of proceedings on appeal to 
 
 Supreme Court of Canada— Amount of security 
 — Wheie judgment is for defendant, and plaintill' 
 appe.ding, wishes to stay execution for defend- 
 ants" costs, he must give security for ^loO, or 
 $'2'i0 in addition to the .S,")()0 prescrihed liy " the : 
 Supreme anil Fxchecpier Court Act." 
 Keiwei/ (assiynee) v. Dudnian, 2 R. & C, .370. , 
 
 XI.--MISCELLAXEOUS CASES. 
 
 I 
 
 1. Appeal from Judge at Chambers - 1 
 
 Upon an ai)peal from a decision of a Judge at 
 
 :i. An appeal lies to the Supreme Cojurt 
 
 from a conviction for penaltit's under the Do- 
 minion Fisheries Act, l,S(i8, c. (iO. 
 Smith and .McCuUy, .!.(., (h'MenliiKj. 
 
 (iiieeii V. Todd, I R. &C., 02. 
 
 \. Appellant become insolvent-Ordered 
 
 to give security or assignee to intervene — 
 I'laintitls liecame insolvent after an ajipeal was 
 taken hy defendant to the .Supreme Comt from 
 the judgment of the County Court, setting aside 
 pleas. The ( 'oint granted an order preventing 
 the cause from hciug proceeded with uidess 
 plaintiH's should give security or the assignee 
 should intervene. 
 
 Evdns ct id. V. Foster, 1 R. & (•., 0. 
 
 .1. i'anada Temperance Act, 1818 -Pro- 
 ceedings of a criminal nature — Appeal from 
 refusal of Judge to allow writ of certiorari — 
 
 Ih'fendant having heen convicted of selling 
 intoxicating liipior contrary to the provisions of 
 the Canada Temperance Act, 1878, application 
 was made to a Judge of the .Supreme Comt, at 
 Chandlers, for a writ of certiorari to remove 
 the proceedings into the .Supreme Court. The 
 api)lieation having been refused, defendant 
 aiipealed. 
 
 Held, that the matter was a criminal one, from 
 which there was no appeal. 
 
 The appeal having been dismissed on a pre- 
 liminary olijection, of which no notice had heen 
 given, the order was made without costs. 
 
 Queen v. Cril/ioun et <tl., 20 N. S. R., 
 (8 R. k C), .39.5 ; 9 C. L. T., 02. 
 
 6. Certiorari — Application for to single 
 
 Judge and afterwards to Court — Discretion — 
 Appeal — The defendants E. R. and H. R. his 
 wife were jointly convicted hefore the Stipen- 
 diary Magistrate for Police District No. 3 in the 
 Comity of Annajiolis, for having wantonly, 
 cruelly and unnecessarily beaten, ill-used and 
 
!).S 
 
 APPEAL. 
 
 di 
 
 iilmsi'il II i)ikir "f "xeu, lliu propi'i-ty of .1. W. 1)., 
 iiiiil fi>r siioh ort'eiioe were luljudged to piiy ii tiiu' 
 (■f S'2>1 with .'?'2'-'.4tl for coHtH, iiiul, in ilffiiult, to 
 lie iin|iris(mi'il, vt<:. Tlu! i-'iuisu oiiiiii! licfori' tlio 
 ( 'oiirt on iiiipcal from the refuwiil of a Jnd^'e to 
 iillow IV writ of cer/ivrari, hnt a prdiniiiiiiry ol)- , 
 jfitioii liivvinj; lieen taken to the a])peal in such I 
 a rase, an a](])liialioM was made to t lie full Court 
 for a vcitiorttii on the same yiounds and alli- 
 ilii^its, 
 
 WcA/, /)(■/■ McDonald, l'. J., and TownMheiul, 
 .1., that it was open to the defendants to make 
 surli an ap])lieation. 
 
 Aho. that the otleiiee of wliieh the clefendanls 
 were eonvieted was one wliieii was siii),de in its 
 Mutui'i', and for which only one Jienalty eonld lie 
 awarded, Imt that tlie awanl of one line aj,'ainst 
 the t\\(i defendants was erroneous, and on this 
 gi'ound, that the ccrtiiiriiri s\um\i\ issue. 
 
 Per McDonald, .(., that the ordei- of the single 
 .Indge eould not he got rid of exeept by way of 
 appeal, the law eonstitiiting a single .Fudge in 
 such eases a tribunal with original jniisdietion 
 (■(jllal to that c)f the full Court. 
 
 .•|/,sw. that the allowance or disallowance of 
 the ccr/lon.-.'-l was entii'ely a matter within the 
 dis<ietion of the Court or .fmlge applied to, ami 
 sucii ilisiTetion having heeii exei'cised, the Court 
 wonlil not lie justilied in overruling his onler. 
 
 i<'r Ritchie, ,J., that the api)lieation to the 
 full Court should iiot he cnteitained unless ii 
 weie shown that the right of a)>i)eal had Keen lost. 
 
 Aho, that the allowance or disallowance of the 
 writ was a matter of discretion from which there 
 was no ap|)eal. 
 
 hi re Rice, 'iU N. S. 1^., (S R. \- ( J, ), -Jilf ; 
 8C. L. 'I'., 4-l,S. 
 
 t. Costs ill criminal cnsos- Order reriis< 
 
 ing writ with costs held bad in criminal case 
 —Application to rescind portion of order as to 
 costs sustained— Defendaiit having Iteeu con- 
 victed of an otl'ence under the Dominion Statute 
 iu relation to cruelty to animals, an application 
 was made to a .Fudge of the .Supreme Court for an 
 order for a writ of rerfiorari to remove the con- , 
 viction into the Sujjreme Court. 
 
 An order having been made refusing the order 
 apitlied for with costs. 
 
 Held, that, the otfence being clearly of a crimi- 
 nal nature, in the absence of any authority 
 authorizing the .Judge to impose costs or of any 
 hail or recognizance to pay them, the defendants 
 coidd not he made to pay the costs of opposing 
 the order for the certiorari. 
 
 An application was made to the Court to re- 
 scind that portion of the order relating to costs, 
 a similar application having been made to the 
 Judge and refused. 
 
 Held, that there being clearly no appeal in 
 such a case under the .Fudicaturc Actund H\des, 
 the course adopted by the <lefendant's counsel of 
 appljing to the Court to rescind «as the proper 
 one. 
 
 in re Hue, 'JO X. S. R.,t H R. .t (i.), 4;i7 ; 
 OC. L. I'., IDS. 
 
 8. t'osis Leave to enter uu payment of- 
 
 Failure to pay— Appeal dismissed — Appeal dis- 
 missed, M here appellant, ha\ ing neglected to 
 enter the ajipcal in time, obtained a lule to enter 
 the cause on payment of costs, which appellant 
 failed to pay. 
 
 ' Jo/iiiKton V. McLean, 4 R. i\; (!., ',11, 
 
 9. Kx parte order for e\ten.sioii of time 
 
 for appeal Set aside - .Vn (jrdei allow ing [ilain- 
 till'an extension of lime for appeal having been 
 granted e.v fxiile, wher'j the )ilaiutiir was out of 
 the jurisdiction, and defendant might have ap- 
 plied for further security for costs. 'I'heonler 
 was (juashed. 
 
 Kut plaint ill', not having reieiveil notice of 
 the decision from the I'ldthonotary in time to 
 enable him to appeal, was allowed time for that 
 purpose on giving sectu'ity. 
 
 Jliircliiu v. Jitinliiii, I R. i\: (i., ■_'(!; 
 7 C. L. 'I'., .VJ. 
 
 10. Habeas Corpus — Order in nature — 
 
 No appeal from — Section (i of cha[)ter !I4, 4th 
 H. .S., giving an ajjjieal fiom the decisions and 
 jmlgiucnts of a .ludge at L'handier.s, does not ap- 
 ply to an order in the nature of a writ of Imbeds 
 cor/ms granted by a. Fudge uiuler sec. ,Sof cap. !)!), 
 4th R. S., '• t)f Securing the Liberty of the Sub- 
 ject." 
 
 In re A. L. McKenzie, •_' R. & (!., 4Sl. 
 
 11. Xo one appearin;;: for appellant- Xo 
 
 oneapl)eai'ing for ap|)ellanl, defendant, plain tilt's 
 counsel was directed to argue the case on behalf 
 of respondent. 
 
 CItipnuin v. (ioeaza et <il., "J R. & (i., 181 ; 
 
 1 C. L. T. , tJU.S. 
 
 12. Kule granted dnrlng trial — Motion 
 
 to rescind refused by full Court — Treated as a 
 ruling of presiding Judge and to be reviewed 
 as such — An order was made for a commission 
 to examine a w itness dated on the day when the 
 Court was sitting in banco and signed by the 
 prothonotary in the usual form of orders granted 
 by the Court. 
 
 //(■/(/, that as the order was granted by the 
 ■Judge befoi-e whom the cause was tried, and 
 signed by the prothonotary at his instance, it 
 
!).') 
 
 ARUITIIATION AND AWARD. 
 
 0(J 
 
 lllllMt III' ciiiisidiifd iin iiii iitiliT lIlMili' Ipy tin' 
 
 C'liiiit. Kijiiliy. .!., i/iii.<ni/iiii/. 
 
 (Jiiir/; V. Tiriiiiiii/ vt tii. ,"> It. .V U., .Vi4. 
 
 I'OI! LIST OK CASKS AI'I'KALK1> lO IIIK 
 SL'l'NKMK (OIKI' OK CANADA 
 .Sm AIM'KNDIX. 
 
 AI'PKAKA\(K. 
 1. Want <»f service «f rule -Waived b) 
 
 ai)iii.'iiriiit; to tuku tluit obji-ction. On tlic ai- 
 ^'iiiiu'iit iif II rule iiiai tn (|liasli a ii'itioiiiri, llii' 
 iittoiMi'v who hail taki'ii out tlio writ, on wiiidi 
 III) attoiiii'yV iiaiiiL' appcart'd, stati'd that he did 
 nut ap))rai' to show causf, liuoaiKsu tliu ink', as 
 he roiitcndfd. had not lii'cn scrvud. 
 
 Hflil, that the ohjci'tion to tlu' sfivifc of thi' 
 I'ldf had lifun waivfd liy iIk' altoini'y's appear- 
 ing. 
 
 API'UAISEMENT. 
 I. or lanilN-Keeond C'»sIn on ( ommis. 
 
 sioncr.s wiic aplioinlcil inidcf an Ai t to leap 
 praise lan<ls taken for railway purpo^es in Uigliy 
 ('iinnty,and it was pro\ idcd l>y I he. Vet that llie 
 reappraisenient, "together with the eosts here- 
 tofore ineurrecl," should lie a eounty eharge. 
 
 Ilelit, that the eosts for serviees liefore the 
 eoniinissioiiers for re-appraisen)ent could not Ke 
 ta.xeil, iVM the Act provided only foi' those ineurred 
 ))rior to its )iassing. 
 
 line Wi'slnn Coiiiilieii J{(n/iriii/,e.i /xn/r llnnli/. 
 
 I It. \ (;., ITii. 
 
 *i. Proof of Appraisers having been 
 
 sworn Attachment— When the apprai.seinent 
 
 shows that the appiaisers were sworn, and the 
 
 Sheriff's return refers m theajipraisers' warianl, 
 
 the sweaiing of the api)raiseis sullieiently 
 
 appears. 
 
 7/.e McirliiiiitK' Jinn/.- w The Steel Co. of 
 
 Cdiiaild (I.iiiiitc(l), .") K. & (;.. -J.-iH. 
 
 .SV«. <(/.so, SHIl'I'IXO. 
 
 1. EfTeet of appearance on (iiiestion of 
 
 jurisdiction I'lainiill. doing 'aisiness in the 
 .State iif New N'olk, issued an altachineiil against 
 dtfeiiilant, a dealer in preserved goods, residing 
 in .Maine, as an alisent ilelitor. It appeared that 
 defentlant had for several years eontinnously 
 carried on Itusiuess, through agents, at .Salilu 
 Island and other jilaees in Xova Seotia, which ; 
 defendant admitted t hat he occasionally visited 
 ill prosei'Utioii of his luisiness, remaining a few 
 davs. One of the jilaintill's swore that a eoii- 
 sideralile portion of the claim was for iiioucy 
 ailvaiiced to eiiahle defendant to carry on his 
 business in Xova .Scutia, and that he verily 
 })elieved that a large part, if not ;hc whole 
 claim, arose in X'ova Scotia. Defendant swore 
 that no i)art of the claim in suit could lie for 
 indelitedness contnicted in Xfiva .Scotia, and 
 that he hail not carried on any business with 
 plaiiititf within the Province since the date of 
 the tirst item in the jiarticulars of demand. 
 
 Held, liy Desliarres, .)., (who delivered the 
 juuginent of the Court), that facts had l)een 
 .■^worn to by plaintitl' which, if tiiie, gave the 
 Court jurisdiction, that it was not for the Court 
 to look at conllicliiig statements in the atlidavits, 
 and further that defendant could not raise the 
 «luestion of jurisdiction after having tiled an 
 appearance. Wilkiius, .1., dmentini/. 
 
 DuiUet) el ai. v. Jones, 1 R. & C, 300. 
 
 3. To Writ of Summon8-&e PRACTICE. 
 
 APPROPRIATION OF PAYMEXTS- 
 
 Ste LIMITATIONS OK A('TlOXS AND 
 SL'ITS. 
 
 ARBITRATION AND AWARD. 
 
 1. Appraisers- 10 Vic., c. 2, s. 19, N. S.- 
 
 Urapire chosen after disagreement — A statute 
 directed that each party should choose an ap- 
 praiser, and that the two a])praisei's so chosen 
 should select a third, and that the three so 
 selected shoulil determine the matter in contro- 
 versy, the decision agreed on by two of them to 
 be binding. The two appraisers attempted, 
 without appointing a third, to make the ap- 
 ])raisement ; but, disagreeing, finally a})j)ointed 
 a third. An appraisement agreed upon by this 
 third and one of the others was sustained. 
 
 In re Keimji, 1 Thorn., 14. 
 
 2. Arbitrator- Connected Mith suit at bar 
 
 — An award was made by the arbitrator in 
 favor of the defendant. Subseijuently to the 
 award being made it was discovereil by the 
 phiintiff 's counsel that the arbitrator, a juilge of 
 the County Court, had, while at the bar, pre- 
 pared and read an afhdavit o[)posing a motion 
 made by plaintiti's counsel for a reference. 
 
!)7 
 
 ARBITRATION AND AWARD. 
 
 98 
 
 Tilt' iirliitl'iitiT HWdi'e tlmt lie Imd no I'ufolli'c- 
 tioii of tliu liriuiiKstaiui'.s wIrmi he coiisuiiUmI 
 to iut, iilitl liiiil lieviT liui'ii consulted ii|ion lliu 
 iiii'litMof tliu ciUl.Mi.', ami tli.it if In: liiul opposcil 
 Ihu iiKitioii ri'fitnt'd to liti iiiul ilonu no, not ii|)on 
 tlie ileft'ii<liint's ri'tiiiiit!!', nor im liis counsel, l)iit 
 iiitrely iiH a fiiemlly aut for tliu tlufumlant'H 
 iiitointv. Hfld, tliat tlio urbiti'utor was not 
 clisijiialilii'il, 
 
 M r Leila lulet iil. v. Ji'iiiieft, 1 R. & (',., ,J2. 
 
 3. Arbitrator dl»i(|uallllcd - Having been 
 
 retained as solicitor— Award set u.iide on the 
 ground that one of the arhitrators was disijuali- 
 tit'd, iiaving heen rcgidarly retained as solicitor 
 of the estate of which the defendant was the 
 executor, although said arliiliator liad not heen 
 engaged as counsel or attiaiiey in tiie matter 
 referred, ami did not concur in the award. 
 Suiitiwr et al. V. Harnhi/l, Exccvlor, 
 
 .SR. &C., 501. 
 
 4. Arbitration -Jury demandod-Plea of 
 
 negligence— Rule to refer upheld— Defendant 
 iilij)ealc<l from an order referring a cause to 
 arliitnition at the instance of plaintiH', on the 
 ground that tliere was a plea of negligence in 
 the conduct of tlio services for which the action 
 was l)rought, hut it was not shown that the 
 defence would really lie raised. It was also 
 argued that the .Iiulge hail iu> jurisdiction to 
 r'jfer the cause to arl)itration after a demand 
 made for trial hy jury, but this grouiul was not 
 taken in llie rule for appeal. 
 Tlie appeal was dismissed. 
 
 Euton V. lioue, ,3 R. & G., 274. 
 
 a. Arbitration -Umpire cbosen after ex* 
 
 amination of witnesses— Parties excluded — 
 
 Ailjitrators chosen by the parties, after having 
 exauiiued the witnesses on both sides, selected 
 an umpire, refused to have plaintirt's witnesses 
 reexamined before the umpire, but re-examined 
 tlie defendant's witnesses, and gave an award for 
 the defendant. The Court would not sujjport 
 tlie award. The exclusion of the parties during 
 the examination of the witness before arbitrators 
 will not necessarily invalidate the award. 
 
 Moore v. Powley, 1 Thom., (1st Ed.), 87; 
 (2nd Ed.), 115. 
 
 6. Award - Altering - Matters not sub- 
 
 mitted — Witnesses not sworn — Waiver - 
 Arbitrators having once made and published 
 their award cannot subsequently alter it. 
 
 An award will not be set aside on account of 
 the omission of the arbitrators to decide on 
 matters not submitted to them previous to the 
 
 nuiking of the a«ard. If parties to an arbitra- 
 tion kno>N'iiigly permit the arbitrators to examine 
 witnesses without oath, antl do not object at the 
 time, such f)inission is not a ground for setting 
 
 aside their award. 
 
 Iftuidvn V. Jhinii, James, 250. 
 
 7. Award -Amount below $'20 -No Juris- 
 diction in Supreme Court to order judgPicnt 
 entered- Submission " that judgment slicadd be 
 entered thereon with costs for the j)arty in whose 
 favor the award should lie made." Award 
 (made a rule of Court under 4tii K. S., cli. 109), 
 contain!, ig the following findings ; — 
 
 " 1. That it was not justitial)le for Watson 
 Katon to adxertise doing business in the Colonial 
 Market. 
 
 " 2. That Stewart's rent should be increased 
 one hundred dollars per aiuium. 
 
 "3. That .Stewart should deliver no ♦ I^aion 
 any of Eaton's guarantees then held by Stewart. 
 
 "4. That the debts due and owing the late 
 firm of Stewart & Eaton, amounting to .*8U.y4, 
 be c(dlectcd by Eaton and retained by him for 
 his own use. 
 
 " '}. That tlie balance due an<l owing by 
 Stewart to Eaton amounts to !iiil6.7li, which 
 Stewart is to jjay to Eaton at once. 
 
 " (). That the expenses in comiection with 
 the arbitration and law expenses should be borne 
 eipially by Stewart and Eaton." 
 
 Ill Id, that the Court could not enter judgment, 
 as the oidy amount directly awarded in money 
 to be recovered l)y Eaton from Stewart was 
 810.70, which being under 820, was below the 
 jurisdiction of the Court. 
 
 Ill re He/trtiin Utween Eaton atid Steimrf, 
 
 2 R. & C, 392 
 
 8. Award — Enforcing obedience to— 4th 
 
 R. S., c. 109, s. 22, same as 5th R. S., c, 115, 
 s. 22— The power conferred on the Court by 
 Revised Statutes, chapter 109, section 22, to en- 
 force obedience to an award made under a 
 voluntary submission cannot be exercised by a, 
 Judge at Chambers 
 Sir William Young, C. J., dmevliiiij. 
 
 Collie v. Moreii, 1 R. & G., 427. 
 
 9. Award— Enterlngjudgment on— A rule 
 
 absolute in the first instance will not be granted 
 
 to enter judgment upon an award given under a 
 
 submission which was made a rule of the Court. 
 
 Young v. De ]Vol/, 3 N. S. D., 453. 
 
 10. Award— Entry of Judgment upon— 
 
 Costs — Plaintiff had a claim against defendant 
 for counsel fees, which was submitted to an arbi- 
 trator, who made an award in plaintiff 's favor 
 
99 
 
 ARBITRATION AND AWARD. 
 
 100 
 
 for 8184, on which judgment was entered. Sub- 
 sequently an agreement was entered into reciting 
 a judgment for l?18-t witliout any reference to 
 costs, and the matter was submitted to a second 
 arbitrator, wlio awarded tlie plaintiff the sum 
 of 8104 " in full of all claims and demands of 
 eithei party against the other." 
 
 I'laintiff entered judgment for the amount so 
 awarded with 879.80 costs of the original suit, 
 and 824.60 for interest, 
 
 The Court refused to set the judgment aside. 
 McDmiald v. McKtiizu', '20 X. S. R., 
 (8R. &«.), '29L>; 
 8 C. L. T., 449. 
 
 11. Award— Entry of Judgment on— Dis- 
 cretion of Judge as to costs — Judgment was 
 entered for defendant in the County Court, with 
 the general costs in the cause, on an award made 
 in his favor. Tlie learned judge allowed an 
 aj)peal on the two points ; 1st, as to wliether 
 the plaintiff should have been allowed costs ; 
 and, 2nd, whether the amount allowed was 
 excessive. 
 
 Held, dismissing the appeal, that what and 
 how much the Judge should allow -was entirely 
 a matter of discretion. 
 
 Boiuiett V, Chesley, 7 R. & G., 184 ; 
 7C. L. T,,249. 
 
 12. Award — Failure to sustain grounds 
 
 of attack — Plaintiff' sought to set a.-iide an 
 award made in the defendant's favor on three 
 grounds; (1), misconduct on the part of tlie 
 arbitrator ; (2), refusal to receive evidence 
 for the plaintiff; and (3), the examination of 
 a witness for the defence in the plaintiff's 
 absence. 
 
 The Court being of the opinion tliat plaintiff 
 had entirely failed on all his grounds the rule 
 to set aside the award was discharged with 
 costs. 
 
 Layton v. McLean, 3 N. S. D., 545. 
 
 13. Award— Flnalty of-Excess of autho- 
 rity in giving costs — Rule of Court for refer- 
 ence ordering inttr alia: 
 
 I ft. " Tliat the arbitrators shall liave power, 
 &o., to examine, &c., and make an award either 
 separately or in one, of and concerning all 
 accounts respecting the receipts and disburse- 
 ments of moneys received from the interest, 
 renting and sale of the Glebe and Church lands 
 and the buildings thereon at I'arrsboro' by the 
 late Rev, W. B. K., or his agents, or by the 
 defendant as his executrix, and all and every 
 matter connected therewith, or pending of and 
 between the said Parish of St. G. and the said 
 
 I W. B. K., or the defendant as executrix or 
 .otherwise." Award "that the defendant do 
 pay to the plaintiffs the sum of one dolhir in 
 , full of tlie same. " 
 
 j 1 b. "That the said arbitrators, & , shall 
 
 have power to order judgment to be eateiod in 
 
 this cause either for the plaintiffs or the defendant 
 
 with or without costs, or to order judgment 
 
 to be entered lioth for plaintiffs and defen<lant, 
 
 i with or without costs, as they shall find the 
 
 I several issues either for or against either party." 
 
 Award "that judgment be entered for the 
 
 plaintiffs for tlie sum of one dollar, and that 
 
 I the defendant pay all the costs of the reference 
 
 I and award. " 
 
 [ 2. " That the said arbitrators shall liave the 
 like power, &c., to hear, &c. , and make an 
 award of ami concerning the receijit and dis- 
 bursement of moneys received for the sale of the 
 school lands at Parrsboro', and rents, issues and 
 profits of the same and e^■ery matter connected 
 therewith adjusting the accounts and settling 
 the balance due thereon." Award "that tlie 
 defendant is indebted to the plaintiffs as such 
 executrix on tlie sai<l school moneys, in the sum 
 of .81400, and tliat the said defendant do pay to 
 the plaintiffs the said sum of 81400, and that 
 judgment be entered for the plaintiii's for that 
 amr)unt. " 
 
 Held, tliat the award was bad as to submis- 
 sion 1 a, in that it diil not exhibit on its face or 
 by necessary implication from what api)eared on 
 it that the several matters referred to in such 
 submission were finally adjusted and settled. 
 
 That the award was liad as to submission 1 b, 
 inasmuch as the arbitrators had exceeded tiieir 
 powers in giving costs of the reference and 
 award. 
 
 Tliat the award was bad as to submission 2, on 
 the same ground as applied to the award under 
 1 a, and because while it found against defend- 
 ant as executri.x it directed judgment against 
 her absolutely. 
 
 Church WardtHH of Parrdiovo' y . Kiiuj, 
 2R. & C, 383. 
 
 On appeal to the Supreme Court of Canada, 
 
 ILld, that the awards sufficiently specified the 
 claims submitted and the various capacities in 
 whicii such claims arose. That tlie first award, 
 being against the defendant in lier representa- 
 tive capacity, could not lie considered against 
 her personally, and negatived any claim of that 
 kind, and was also an adjudication against tlie 
 defendant that she had assets ; and tiiat the 
 finding in the second award that the defendant 
 should pay 81 could be consideretl a finding as 
 against her in her individual capacity for that 
 sum, and, as to the claims of the plaintiffs against 
 her for moneys received by her husband or by her 
 
101 
 
 ARBITRATICy AND AWARD. 
 
 102 
 
 as executrix, as a finding against the plaintiffs 
 on their claim. That the part of tiic second 
 award, directing payment of tlie costs of the 
 reference and award was bad, but might be ' 
 abandoned. 
 
 St. Oeori/e'x Parish v. Kimj, 2 S. C. R., 143. j 
 
 14. Award— Finding beyond Jurisdiction 
 
 — Publication — Absence of one arbitrator — \ 
 I'h'intiff claimed tliat defendant was indebted to 
 liini for work and labor in sawing logs of the 
 defendant, and defen<lant claimed a set-otf. The 
 matter was referred tf) arbitrators, who made 
 an award in favor of defendant, and added a 
 finding that the logs remaining unsawn were 
 defendant's property. 
 
 Ile/d, that this finding was outside of the 
 jurisdiction of the arbitrators, but being clearlj' 
 separable from their linding on the matters 
 within their jurisdiction, was a mere nullitj' not 
 ati'ecting the validity of the award. The sub- 
 mission empowered the arbitrators, or any two 
 of them to make au award. The tiiroo arbitra- 
 tors sat and reail I'll the evidence, and adjourned 
 to meet at Halifax ; but the award was executed 
 by two of tlie arbitrators in the absence of the 
 third, who diil not attend the meeting of which 
 he had notice, and at which the award was signed. 
 The award was filed on the same day with the 
 I'nithonotary of the County in which the cause 
 was pending, enclosed in an envelope ; and on the 
 same daj" was opened by defendant in the ottice 
 in presence and by the authority of one of the 
 aibitrators. 
 
 //' III, that the award was duly made and pub- 
 lislicd. 
 
 McDonald, C. J., dnhitanti., as to the power 
 of the two arbitrators to make the award, in the 
 absence of the third. 
 
 C'reclman v. McMidkn, 6 R. k (t., 138 ; 
 6 C. L. T., 450. 
 
 15. Award— Irregularities on part cf arbi- 
 trators — Waiver — Motion to set aside too late 
 —4th Rev. Stats., c. 95, s. 42— Q., whether an 
 arbitration is a "cause" within the meaning of 
 — I'raser & Paint having terminated their part- 
 nership business, referred all their disputes of 
 every description to the award of two arbitrators 
 and such umpire as they should select, before en- 
 tering upon their duties as arbitrators. Author- i 
 ity was given to the arbitrators, or any two of 
 them, to enlarge the time for making the award, 
 and the two originally appointed extended the 
 time, and, after doing so, selected an umpire 
 and entered upon the inquiry. Desiring to 
 obtain all the information possible, the arbitra- 
 tors, without the request of either party, called 
 before them certain persons, neither of the parties 
 
 being present ; but it appeared that the persons 
 so called had no evidence to give aliout the 
 matters in controversy, and no objection was 
 taken by the party moving to set aside the 
 award, who knew that the arbitrators had called 
 such persons before them, but yet continued to 
 attend and conduct the reference on his own 
 behalf. The iiartncrship was indebted to Fraser 
 j in the sum of .S")'2,840, and there was due to it 
 by Paint .S'i,G'24, and the award directed that 
 the assets should be held and managed by 
 Fraser imder the inspection of the umpire, and 
 that the sale of the partnership property should 
 be made by him at such times and places as the 
 um])ire shouM approve. The award was made 
 '28th .Septendior, 187."), and no motion was made 
 to set it aside until March, 1870, the objecting 
 parties having in the meantime, with knowledge 
 of the facts upon which lie based his objections, 
 proceeded with tlie arl]itration. attended the 
 1 sale of the property, and, at the request of the 
 I auctioneer, furnislied information as to the 
 boun<buics of the land. 
 
 j III hi, that the provision in the award as to 
 
 the sale of the property by Fraser, under the 
 
 approval of the umpire, was not such a dele- 
 
 ' gatitm of authority as should invaliilate llie 
 
 award ; that, although the arbitrators had acted 
 
 unadvisedly, in calling persons before them in 
 
 the absence of the parties, yet, as Paint had 
 
 made no objection, but had afterwards proceeded 
 
 witli the refcience, the olijection was not, in 
 
 view of the lapse of time, entitled to much 
 
 ; favor ; that the two arl)itrators, in extending 
 
 J the time, before appointing an umpire, had not 
 
 i "entered upon tlieir duties as arbitrators" 
 
 • within the meaning of the <.lause of the submis- 
 
 , sion providing for the selection of an umpire 
 
 : before so entering upon their duties ; tiiat the 
 
 policy of the Legislature and the practice of the 
 
 I Court required a party desirous of setting aside 
 
 'an award, to move promptly; and tluu Paint, 
 
 by his delay in moving, as well as by his tacit 
 
 and active acquiescence in the award, had waived 
 
 irregularities in the conducting of the arbitra- 
 
 ti(m. 
 
 In rt Fmxn- A- Paint, R. E. D., 68. 
 On appial to the Su/innif. Court in banco, 
 //fid, that the application to set aside the 
 award was too late, not having been made with- 
 in one month, as required by the statute, nor 
 within the time allowed for moving for a new 
 trial, as would be neces.sary had the submission 
 not been made a rule of Court ; that the conduct 
 of the arbitrators, altliongh in one respect indis- 
 creet, wjis in the whole unexceptionable, and 
 that the conclusions of the arbitrators were 
 legal and within their authority. 
 
 //eld, further, that under sec. 22, of cap. 109, 
 
103 
 
 ARBITRATION AND AWARD. 
 
 104 
 
 4tli R. 8,, the Jiulge in K(iuity was warranted I amount at which the work \va.» so valued, 
 in iirdering tluit, in case I'aint should refuse to witiiout making any deiluction for plaintiff's 
 execute a deed rec|uiriMl to etlectuate a sale j payments. Second, that the receipt, although 
 
 directed by the arl)itrators to )je made, the 
 
 same should be made by a Master of the Court. 
 
 (^himir, \.hether the matter was a "cause" 
 
 within the meaning of sec. 4'2 of cap. 95, 4th 
 
 R. S. 
 
 /,( re Fiwn- & Paint, .S R. & C, 10. 
 
 Opinion of Ritchie, E. J., on appeal, R. E. D., 
 
 10. Award— Motion to enter Judgment 
 
 on — Costs — It is not necessary to move for leave 
 to enter u]) judgment on an award under a rule 
 of reference in the cause. Costs of such a motion 
 will not be allowed. 
 
 Graham v. Graham, 2 Tliom,, 77. 
 
 found l)y the jury to have been pi-epared by the 
 plaintiti' in good faith, and signed by theilefend- 
 ant witli a knowledge of its contents and of all 
 the circumstances, was no bar to the defendant's 
 claim on the award. 
 
 Benmtt v. Murray, 1 Old., (514. 
 
 18. Award — Rule nisi to set aside — 
 
 Requisites of — In moving to set aside an award 
 the rule nixi must contain the objections ou 
 which the party intends to rely. 
 
 Mt' Donald it al. v. Marmaml, '2 Thom., 79. 
 
 19. Award -Rule nisi to set aside award- 
 Requisites of — A rule nixi to set aside an award 
 must contain tlie grounds of objection on which 
 17. Award-ParOl evidence as to what j f,,^, j,,^,.ty „„„.j„g tl,e,.L.f„r intends to rely, and 
 
 submitted to and considered by arbitrators 
 Inadmissible — Receipt — Efl'ect of — I'laintitf 
 and defendant entered into an agreement, by 
 which defendant contracted to finish a certain 
 vessel belonging to the jilaintitf. Before the 
 completion of the contract the vessel was burned, 
 and a difference having arisen as to the amount 
 defendant had earned under the contract, plain- 
 tiff and defendant entered into arbitration bonds, 
 in which, after reciting the agreement, au<l that 
 the vessel, before her completion, had been con- 
 sumed by tire, the subject of the submission was 
 stated as follows: "In conscpience of which, 
 differences have arisen between the said J. B, 
 (the plaintiff"), and the said A. M. (the defend- 
 ant), a-1 to thiir accounts, and the amount thi 
 laid A. J/. I" (ntitled to riceirf under xaid aijne- 
 ment." Two of the three arbitrators made an 
 award, in which, after stating that tliey had 
 investigated the matter submitted for'their con- 
 sideration, they awarded "That the said J. B. 
 (the plaintiff"), do pay to the said A. M. (the 
 defendant), the sum of £195, under his agree- 
 ment, and the matters submitted to us." 
 
 Plaintiff had, previous to the submission, paid 
 defendant £184 on account of the work under 
 the contract, and subsequent to the award he 
 paid him a further sum of £.^, and took a receipt 
 from him therefor, wiiich was expressed to be 
 " in full of all dues and demands to date," not- 
 withstanding which the defendant ha... '■et up 
 the amount of the award as a set-off to a sepa- 
 rate demand of the plaintiff. 
 
 Held, Young, C. J., and DesBarres, J., rfw- 
 •entiiifi — First, that parol evidence was inadmis- 
 sible to show that the only matter submitted to 
 and considered by the arbitrators was the value 
 of the defendant's work on the vessel, under the 
 agreement, and that the award was only of the 
 
 must also lie drawn up on reading the award, or 
 a copy of it. 
 
 Grant v. Hall, '2 Old., 7-'. 
 
 20. Award — Setting aside— Claim Im- 
 
 properly allowed — Damages awarded — Mis- 
 take— Award sent back for corre tion— /fcW, 
 
 that an awanl could not be set aside at the 
 instance of one of the defendants on the ground 
 of a claim being improperly allowed against the 
 plaintiffs. 
 
 Hetd,/nrthir, that where one of the objects 
 of the suit was to require defendants to submit 
 their differences to arbitration under an agree- 
 ment to do so, and by the rule of reference all 
 matters in difference in the suit were submitted 
 to their award, the award could not be set aside 
 because the arbitrators awarded damages to the 
 plaint ift"s. 
 
 //< Id, further, that where all the parties and 
 tlie arbitrators themselves admitted that a 
 mistake had been made in re<iuiring one of the 
 defendants, as part of the award, to pay oft" a 
 certain mortgage, which should not have been 
 re<iuired, the evidence of the arbitrators was 
 receivable as to such a point, as well as on the 
 point of their having taken into consideration 
 matters not within their jurisdiction, and that, 
 as the arbitrators had inadvertently made a 
 mistake with reference to the mortgage, tiie 
 award should be sent back to them to he 
 
 corrected. 
 
 Tremain et al. v. Mackintosh et al, 
 R. E. 1).,447. 
 
 21. Award-Setting aslde-Error of Judg- 
 ment on part of arbitrators— Each of several 
 matters submitted not decided separately— 
 It is not competent to the Court to set aside an 
 
105 
 
 ARBITRATION AND AWARD. 
 
 106 
 
 awiinl frir error of judgment on the part of arbi- ! 
 trators in the iihseni'c of misconduct or mistake. ' 
 An award will not he set aside or sent hack 
 ff)r neglect on the part of the arbitrators to de- 
 cide separately each of several matters referred 
 to them, when it is not clearly expressed in the 
 reference that the matters referred are to be so 
 
 decided. 
 
 nirkard.'< v. Bickanii, 3 X. S. D., 227. 
 
 22. Award- Setting aside-Error orjiidg- 
 
 ment in arbitrator not sufficient ground — 
 Mistake— Must be apparent on face of award ' 
 or admitted by arbitrator -Kiror of judgment 
 in an arbitrator is not suUicient ground for set- ; 
 ting aside his award. 
 
 Tn set aside an award on the ground of mis- 
 take on the j)art of an arbitrator the mistake 
 must lie ap|)arent on the face of the award, or 
 aihuittcd liy the arbitrator: and in tiie latter 
 case it must also lie shown that the judgment of 
 till.' ailiitrator was intliienced by it, and that if 
 it iiail nut hiippencil lie \\iiulil have Miade a dif- 
 
 fciciit award. 
 
 Lijaiis V. Doiiocdii, '2 Old., ISO. 
 
 •>;{. Award Setting aside Improper re- 
 ception of evidence Where a cause was referred 
 to ailiitration, ami tlie defendant obtained time 
 to proceed to \e\v Ihiinswick to procui' addi- 
 tional witnesses, and in his absence the ailiitra- 
 tors receive<l a telegram containing statements 
 favdi'ablc to the iilainlitl'. which the defendant 
 swoi-e witiiout contradiction, inllueneed their 
 decision, and the award \\as made against defen- 
 dant before he had time to return. Hi/d, sulU- 
 cient ground to .set aside the award. 
 
 Al/i-'nii y. /)i shrisfi)/, Cocliran, !)1. 
 
 24. .\ward — Setting aside — laelies - 
 
 Irregularitj' -Ap])eal from an order discharging 
 nu order ///>/ to set aside' an awanl made in favor 
 of plaintilt's. The award j)rocee led mainly on 
 evidence taken tinder a commission executed in 
 Kngland, but this did not ajipearfrom tlieawar<l 
 itself, niu- did it contain tiie grounds of tiie 
 ailiitriitors" decision. This commission and tiie 
 evidence taken thereunder had been rettiined to 
 the prothonotary and opened by him in the 
 presence of the plaintitl's" counsid alone, without 
 any liotic given to defendant's counsel, then 
 handed to tiie ])laint ill's' coimsel and by him pro- 
 duced to tiie arbitiator. and tinder jirotest of 
 ilefeudant's counsel, read to and considered by 
 the arbitrator. But with the exception of this 
 objection, defendant's counsel, although a period 
 of eighteen months had elapsed since tlie award, 
 had taken no steps to object to the mode in whieli 
 tlie evidence under the connnission luid been 
 
 taken, or to the legal character of that evidence, 
 nor was any such pointed ottt at the argument. 
 The arbitrator, however, had proniised to con- 
 sider any authorities which defendant's counsel 
 might present to him on this subject, and 
 had made the award without having a further 
 hearing, 
 
 //(/'/, that the application was made too late. 
 
 Appeal dismissed with, costs. 
 
 Si/rtr it al. v. McCuUoch, 2 N. S. D., 104. 
 
 25. Award — Misappropriation by firm— 
 
 Against one partner for whole amount, both 
 having shared in misappropriation — Defend- 
 ant, a barrister, being in jiaitiiership with J. (1. 
 T., the film, as solicitiu's for Mrs. McS., collect- 
 ed certain large sums of money, wliich, instead 
 of paying over to her, tiiey appropriated to their 
 own use. I'laiutilt' having brought action for 
 the amount, tiic iiuUter was referred to arbitra- 
 tion, and an award made in her favor whi-li 
 defendant now sought to set aside mainly oi. 
 the ground that the award was unjust ami in- 
 correct, because defendant was held liable for 
 the total amount received by the tinii instead of 
 ■,s he contendi'd iiiily for tlic aninunt lie had indi- 
 vidually misapin'opriated. Tiiere were other 
 objections taken by ilefeiidant to tiie award ol a 
 tecliuical eiiaiacter. One of tiiese was tiiat tiie 
 other dcfeiulant had not signed tlu: reference. 
 He had, however, attended the reference. The 
 otiier objt'ctions were successfully met by alti- 
 davits. 
 
 Hihl, that the auard slmuld be sustained. 
 MrS!r,<ii<!/ y. ]V((//nr, <>«/., -2 S. S. l).,8;i. 
 
 20. Award Power of Attorney to enlarge 
 
 time for m.aking— Additional ground of ob- 
 jection, on appeal — I'laiutitl' broiiglit action 
 against the defendant coi'])oratioii for extras in 
 eo|isci|iielici! of deviations ordered by the City 
 Kngineer from the ]ilan under which plaiiititf 
 liad contracted to construct a sewer. A refer 
 ence was entereil into, signed by the Recorder 
 of tlie City and the attorney of the plaintiH', 
 and made a rule of Court, wiiercby tlie matters 
 ui dispute were left to two arbitrators named, 
 and a third to be l>y tleiii eJiDseii. the award to 
 be made on or befdi'i' tiie tirst day of May, " or 
 on sucli further or ulterior day as tiie said 
 arbitrators, or any two of them, shall from time 
 to time indorse on this order." 'I'wo extensions 
 were indorsed by twri of tlie arbitrators to tlie 
 first duly and the tirst .September res|)ectively, 
 and on the .'Ust August a further extension to 
 the Sth .Septemlier was indorsed, signeil, not by 
 the arliitrators, but by tlie Recorder and the 
 plaintiff's attorney. In the award, which was 
 
lor 
 
 ARBITRATION AND AWARD. 
 
 108 
 
 made on the 7th of Septemher, the arbitrators 
 set out that tliej- had considered tlxe matters 
 referred to tliem under the annexed rule "and 
 the indorsements thereon." 
 
 Hi III, on a motion to set aside tlic award, that 
 the Recorder, as the attorney of the corporation, 
 had ))o\ver to enter into the reference, Init per 
 Young, C. J,, DeslJarrcs and McDonald, JJ., 
 (Weatiicrhe, J., di-tmndnij), that the last enlarge- 
 ment not having been made by the arbitrators 
 as required by tlie rule, but by the attorneys of 
 the parties, was invalid, and that the i.ssent of 
 the arl)itrators thereto couhl not give them 
 jurisdiction. Per Young, C. J., and DesBarres, 
 J., that tlu'iv had been no waiver of the irregu- 
 larity', as notliing ^\as done by the parties in the 
 matter after the first of 8cptend)er. l\r Mc- 
 Donald, .T., that the last enlargement was a void 
 act and could not be waived. 
 
 Hi III, Weatherbe, J., ilisxi.nl iuij, that not- 
 withstanding tlie omission from R. S., fourth 
 series, cap. 94, sec. .">, of the words contained in 
 R. .S.. third series, cap. l;U, sec. S.SS, a .lu.lge 
 at Chambers can make a lule »(■</ returnable in 
 term. 
 
 Onhs V. Till Ciiii of Hnlijhx, 1 R. & (!., 98. 
 
 On nji/ii rtl /o thi Siijiriini C'oiirl of Canada, 
 
 Held, reversing the j\idgnient of the Supreme 
 Court of Xova Scotia, that when tlie parties 
 through their respective attorneys in the action, 
 consent to extend the time for making an award 
 imdcr a ruU' of reference, such consent docs not 
 o])erate as a new suliinissinii, l)Ut as an enlarge, 
 menl of the time under tlie rule, and a 
 continuation to the extended period of the 
 authfirity of llie arliitiators, and therefore an 
 award made within the extended period is an 
 award made under the rule of reference, and is 
 valid and binding on tlie parties. 
 
 2. Tliat tile fact of one of tlie jiarties lieing 
 a municij)al corporation makes no dill'erence. 
 
 '•i. Tiiat in Xova Scutia, where tlie I'tile nisi 
 to set aside an award specifies certain grounds 
 of objection, and no new grounds are adiled by 
 way of amendment in tlie Court l)elow, no otlier 
 gi'ound of olijection to tiie award can lie raised 
 on appeal. 
 
 Ocdxs V. Till. Cii'j qj' Halijax, 4 S. C. R., 040. 
 
 21. Aw ard - SrttliiK aside - Uiilc nisi — 
 
 On reading rule of reference and award — 
 When rule must be taken— Kide nixi to set aside 
 an award disciiarged with costs, tliere being no 
 imputation on tlie good faitli of the arbitrator, 
 and his award appearing from tlie facts and 
 pleadings to ))e just and reasonal)Ie. 
 
 Tlie ajiplication to set aside an awanl must be 
 made at the earliest opiiortunily after it has 
 
 ' been given, and the rule nln must be expressed 
 ' as having been granted on reading the rule of 
 , reference and the award, etc. 
 
 Harris v. McCormick, 2 N. S. D., 21. 
 
 I 28. Award — Setting aside — Umpire- 
 Appointment of— Hearing statement of ease 
 not from witnesses, but from arbitrators — iJ. F, 
 and J. M. , arbitrators, being agreed tliat a certain 
 sum was due by the defendant, l)ut differing as 
 to the parties by whom the action could be 
 legally ))rought, by a memoran<lum indorsed 
 .upon the submission, appointed J. \V. R. as 
 I umpire. The latter having heard from the arbitra- 
 tors the statement of facts in which they both 
 , concurred, decided that the plaintiffs were the 
 proper ])arties, and so awanh^l in conjunction 
 I with tlie arbitrator with whom he agreed. 
 I The defendant took exception to the award on 
 ' the grounds— 1st, that he had not ac(iuiesced in 
 I the appointment of umpire ; '2ni\, that the um- 
 I pire had not himself heard the evidence of the 
 parties ; and .'h'll, tliat the defendant liad no 
 notice of tlie appointment or opportunity of pio- 
 I ducing testimony. 
 
 I After argument tlie case was referred back to 
 I the umpire with instructions to cite the j)arties 
 ^ before him to enable them to be heard witli their 
 witnesses. 
 
 Sir \V. Young, C. J., while consenting to the 
 cause being referred liack, was of opinion that 
 the award was sustainable, and tliat the rule 
 for setting it aside should be discharged. 
 
 Eit/oti >:/ al. V. CampUill, 2 X. S. D., :?I4. 
 
 29. Award — Settling matter referred— 
 
 Inability to decide conflicting statements not 
 j referred — Wlien a reference iiad Ijcen made set- 
 ' ting out that differences had arisen relative to 
 I the sale ami deliveiy of a cargo, and an awanl 
 I was made ileciding that (|U»'stion, but stating 
 that the ail>itrators could not entertain certain 
 statement;* as to whether plaiiititl's were pur- 
 chasing a.s principals or agents as these state- 
 i ments weie entirely conflicting ami opposed to 
 ' each other. 
 
 Hi Id, that the main ])oiiit as to the delivery "f 
 I the cai'go having been decided, the award was 
 good though no decision had been given relative 
 to such statements. 
 
 Sallir It al. v. Full, '2 Thorn., .'i.'ilj. 
 
 30. Award Setting aslde-Mlstake-Afll- 
 
 davit of arbitrator that he misunderstood 
 certain portions of the evidence — Where one 
 I of two arliitiators who had made a certttiu 
 award, subse(|Ueiitly made an affidavit setting 
 out that he intended to decide the case according 
 
109 
 
 ARBITRATION AND AWARD. 
 
 110 
 
 to law, Imt on reconsideration of tlie matter, | fixing fees must he set aside, and the rest con- 
 ami on repunisal of the minutes of evidence, firmed. 
 
 he felt pursuade<l that in making the award lie 
 inisunderstood the evidence in the matter, 
 iiiiisniiRli as he took for granted that no evidence | 
 was given of a certain fact, which, upon the 
 minutes of tlie evidence being read before the 
 
 In the. Mutter of the. Arbitration between 
 
 Witr and Cunimiinjer, 2 R. & C, 173. 
 
 33. Award to be ready in writing for 
 
 delivery on a certain day — Arbitrators when 
 
 ( 'unit, by consent, appeared to be material luuX'i/unrti officio — Arbitrators acting under a sub- 
 to be ill proof. mission requiring the award to be made in writ- 
 Hihl, that the award must be set aside. I ing, ready to be delivered to the parties at a 
 JJtsIiarrtu v. Landry, '2 R. & C, 14."). ; certain day, cannot, o.fter having nuidc an award, 
 
 I set it aside and make a new one. An award in 
 ' such a case is complete when ready to be deliv- 
 31. Award-Silent as to set OfT-Sufllcient ere.l, and (toes not rc(iuire delivery to give it 
 if made de /miemisms—Aii awanl professed to i effect. After it is ready to be delivered the 
 lie made of and concerning all the matters j .^i.ijitj.ators are. /»»'■// q/AV/o. 
 referred in tiie cause or uiuler the order, and i Saii/ord v. Sanford, 2 'J'hom., 266. 
 
 the arliitrator awar<lcd that the plaintitl' liad i 
 
 no good causr of action herein against the 34^ Award -Two arbitrators out of thrcB 
 
 defendant, and tiiat there was nothing due authorized to award— Absence of third— Fees 
 
 from the .Icfcndant to the plaintiff herein. —Where the submission gives autliority to any 
 
 //./'/. that it was no objection to the a\\ard („.,_, „£ (1,^ arbitrators to make an award, the 
 
 that no specirie reference was nuide to a set off presence of the three at the time the award is 
 
 claimu(l in the cause by tile defendant. siuned is not necessary. 
 A'K.vN,// V. Coo/-, 5 R. & G., i;«. 
 
 Wiiere the arbitrators, without authority fiom 
 the submission, direct witnesses to be paid, that 
 will not vitiate the award. 
 
 Piirdi/ V. Burtiriihji, 2 Thorn. , 150. 
 
 35. Award— I'nder snbniission provided 
 
 3'2. Award sustained in part and rejected 
 
 in part — Time for making award — Laches — 
 One arbitrator absent at some of the hearings 
 
 -Consent-An agreement, dated lilth Xovem- foy j^ policy of insurance— Court in action on 
 
 bur, bs74, was signed by A. W. and .S. NV. I). C, policy cannot go behind award — Plaintiffs 
 
 referring certain disputes concerning lands to |„„ught action ni a policy of marine insurance, 
 
 tliice ailiitratiMs name.l therein, providing that ^,^■\^[^.\^ containe.l a clause providing that in case 
 
 tile award siiould be made and signed on or ^f dispute the claim shouhl be submitted to 
 befni-.,. liic lilth day of Febiuaiy, 1 ST."), and that | arbitrators. Defendants contended that the 
 
 copies of it should be serve.l <m the p;uties piaintitls had no insurable interest, and the dis- 
 
 withiii ninety days from the date of the agree- p^^y ^^.^^ ucconling to the terms of the policy 
 
 iiient. 'I'he award was made and signed on the submitted to the arbitrators \\\\o made an award 
 
 IXth day of February, IST,"), and copies of it ;„ fav„r „f the plaintiffs. 
 
 .served (111 tiiat (hiy, ninety-one days after the 
 (late (]f the agreeiuelit. 
 
 ///'/, that the objection, that copies of the 
 award iiad not been served within liie time 
 stipulated, could not Jirevail, as tiic award was 
 iiuide ainl served within the time named in the 
 iigieenii'iit for its being made ; and that even if 
 
 Heltl, that the t'ourt could not go behind the 
 award to ascertain whether ])laintitrs had an 
 insurable interest. 
 
 Trooji it al.v. Awhor Marine Iii'<iirnu<'e Co., 
 
 3 R. (S: (i., -y.U. 
 
 36. Estoppel by submission and award - 
 
 the objections could have prevailed in another Other parties interested — The surviving exeeii- 
 
 case, S. \V. 1). C., who raised it here, was guilty tor cited the ])aities interested in the estate of 
 
 of /urliti ill allowing two terms of the Court to deceased to attend for the pui'iiose of a final 
 
 '.uterveiie between the serving of the award and settlement, and a preliminarjMjuestion was raised 
 
 his iHoiiou to set it aside. as to whether all matters in dispute had not been 
 
 ///'/, ((/«), that the fact that one of the arbi- settled by an award. The award in (juestion 
 
 traloi's was not present during the whole period resulted fiitm a submission to which the executor 
 
 of taking the evidence, could not be made ground and executrix alone were parties, and recited 
 
 "1 o.ijeclion to the award when all the parties differences between those parties only. It ap- 
 
 iiiterested consented to the arbitrator absenting peared that other parties than tlio.se were inter- 
 
 '''""si'lf- ested in the estate, viz :-- -the chihlren and the 
 
 Hi III, al!<o, that the portion of the award creditors of the testator. 
 
Ill 
 
 ARBITRATION AND AWARD. 
 
 112 
 
 Held, that, whether the parties to tlie sub- 
 mission were or were not estopped, as there were 
 other parties interested, the .ludge of E'ro))ate 
 shouM have over-ruled the preliminary objection 
 and (leoided upon the evidence independent of 
 the suliniission. 
 
 In rt Estate of George Sinithf >■■•<, 3 R. & (i., 306 ; | 
 
 2C. L. T., tiOtJ. ' 
 
 37. Offlrini arbitrators — Appeal from- 
 
 Intercolonial Railway Extension— Damages 
 —Submission— Petition of right— 42 Vic, c. ' 
 8. (Dom.) — Tile idaintill's proceeded against tiie 
 (iovernment l)y ])etition of right for damages 
 caused by tlie I. C. Railway extension destioying 
 their roail and conijielling them to sell tiieirplant, 
 &c., at a loss. TIh' Crown denuirred to the 
 petitjiiu, and, the deniiurei' bi'ing aigued before 
 Sir W. I>, ili<'iiards, ('. .)., juclgiiuiit was gi\cn 
 aliowiiii.' tlie dennirrer on the grou.id that the 
 only remedy for t lie company was by I'uference 
 to ti'.e otlic-ial arbitiators. 
 
 Tt was then agreed that tlie reference to the 
 otlicial arl)itiators sliould be had, and the fol- 
 lowing special tei'ins were agreed to : "^Vhereas, 
 tiic Halifax Street Railway Company has made 
 ii claim upon tlie (icjvernment of Canada for 
 eompensatiou for damages alleged to iiave buun 
 sustained by that company by M'as(]n of tiie con- 
 struction of the Intercolonial Itaiiway, anil as 
 the (iovcrmucnt and tlic comjiany have failed to 
 agree as to such com])cnsation, the cimipany lias 
 reipusted that such claim be referred to the 
 otlicial arliitrators under tlie Statutes iu that 
 bi'lialf; and, whereas, the (iovernment is will- 
 ing in n tVr the claim to such arbitrators on the 
 following ciinditioiis, to which the company has 
 agreed, namely : 1. That the company shall, 
 1)efore the ma;tei' is entered upon before the 
 arbitrators furnish to the ( Jovermnent a state- 
 ment of tile various claims which they make in 
 the premises, ehissifying separately each kind of 
 claim. '2. That the (iovermneut admit tlieir 
 lialiility to niiike compensation to the extent 
 onlj' to which they are bound liy law to make 
 such coiripunsatioii. 3. 'I'hat the arbitiators 
 shall deal with each kind of claim separately, 
 repoiling their findings with respect to the 
 facts comiected therewith, and as to tiie amount 
 of compensation (if any) which sliouhl be made 
 therefor to the company. 4. That either party 
 shidl lie at lilierty to make this suliniission a rule 
 of the Kxchciiuer Court jiuisuaiit to c. S of the 
 Act, 4'Jnd Vic., (1M70), Canada, and to proceed 
 under tiie provision of the said Act before that 
 Court with respe(;t to tlu^ award, or any part 
 thereof, as may be thought best. .5. That any 
 judgment, order, rule <ir decision of the Exclie- 
 quer Court i' the premises may be appealed 
 
 from to the Supreme Court pursuant to the Oth 
 section of the Act last mentioned. Therefore 
 tlie Government of Canada and the said C<iin- 
 pany hereby refer the said claim to the full 
 board of arbitrators upon the terms an<l comli- 
 tions above mentioned. And whereas, The Hali- 
 fax Street Railroad ( 'ompany, in pursuance of 
 the terms of the above cited order in council, ):as 
 lodged with the (iovernment of Canada a claim, 
 of which the following is a cojiy, vi/ : — 
 
 "In compliance with section 1 of the reference 
 in this matter, the Halifax Street Railroad Com- 
 pany hereby furnish the following statement of 
 their respective claims for compensation : I. 
 The total loss of the railroad as a chartered 
 jiroperty jiossessiiig exclusive jirivileges within 
 the city, with all its plant and. real and jiersonal 
 ])idpeities, the estimated value of which was at 
 the ilate of the (iovernment taking posses- 
 sion of the track the sum of .S'_'t;i»,0(H). •_'. The 
 Comjiauy claims, idso, damages for the dividing 
 of liieir road into two portions rendering cacli 
 valueless, and thus, in other words, destroying 
 tiie whole value, .S'JtiO.IHHJ. 3. The Company 
 claims also for damages actually done to the 
 crossing, for loss in having to sacrilice hiirscs, 
 plant and properties which were saciiliced in 
 consequence of the act of the (iovernment, and 
 for general depreciation in value of their leal 
 property, and for loss of tlieir charter, and the 
 privileges and rights guaranteed under it liy tlic 
 I'rovhicial Legislature, SL'(i(l,(KKJ. 4. The Com 
 pany claims interest at six jier cunt, per annum 
 on the amount to be allowed for damages from 
 the time of lucakiiig upthe track, say 17th May, 
 ISTCi, up to the time of payment in hill to thi' 
 Coiiipany. Tlierefnie tlie(iovermiient of Canada 
 and the said Company hereby refer the said 
 claims to llie full board of arbitrators upon thci 
 terms and conditi<iiis above mentioned." 
 
 The matter was liear<l on the above suliniis- 
 sion liefore the otlicial arliitrator.s, and on the 
 •JTtli August, ISSO, the following award was 
 made. After reciting the omission and facts :^ 
 1. We find, with regard to the first item of the 
 claim, that the company are not entitled to 
 recover for the loss of their railroad and its 
 plant and real and jiersonal properties, because 
 that railroail was neither totally nor partially 
 lost by any actual interference of the (>oveiii- 
 inent with tiie company's property. 2. We 
 find, with regard to the second item of the claim, 
 that the company are not entitled to be paid 
 any compensation, because the government have 
 not "divided their (the company's) railroad into 
 two portions, rendering each valueless," or des- 
 troyed the value of the railroad. We find, with 
 regard to the third item of the claim, that the 
 company is not entitled to any coinpensatiiui, 
 
113 
 
 ARBITRATION AND AWARD. 
 
 114 
 
 because the Oovornment did no .ictiial ilaniage 39. Parol SubmlSAlon-RcqulsltCS— In or- 
 
 tfi the crossing, ami liecauae tlio company were ! tier to sustain a i)arol sulmiission. there must be 
 
 not olpligcil to saciitlce horses, plant, or jjroper- ' clear evidence that all the parties to it under- 
 stood and intended it to operate as a reference. 
 Dilap V. Fo.ifir it al., James, ,S,S5. 
 
 tic-i, in consei|Uence of any act of tlie (iovern- 
 
 nicnt, and did not sutler any dei)reciation in value 
 
 of their real estate within the meaning of the 
 
 Public Works Act, 'M Vic, Chap. 1'2, and did 
 
 not lose their charter and the privileges an.l charged-Where a cause is, by consent of both 
 
 rights guaranteed under it by any act of the ' Parties, referred to arbitration 
 
 ( iovernuient. 4. We tind, with regard to tlie 
 
 fiiurtli ileiii of the claim, that notliing is due to 
 
 the conipanv for interest. 
 
 The plaintitt's ajipealed fmni this award, and 
 Ml-. Justice Henry, in liie Kxchtipur diurt, 
 gave judgment in tlieir favnr for .><S,(((MI. I'i'om 
 
 40. Reference by consent — Ball (lis- 
 
 H'/il, that tlie bail in the original action is 
 
 discharged. 
 
 Alli^oH V. Di ■■iHri-iuy, Cochran, l!>. 
 
 this judgment lioth parties ap|)ealed. 
 
 Iltlil, Henry, .1., ili.^.-n ulin'j, that the appeal 
 
 of the Halifax .Street Railway Company should 
 
 lie ilismissed with costs, and tlic appeal <if the 
 
 Crown allowed with costs. 
 
 HaCi/ux Sin- 1 Hdi/n-rti; ('(uiI/kihi/ v. 'Hi' l^hn'ii. 
 
 J. ''It May, ISS.l, Cas. Digest, IS. 
 
 41. Reference by consent-Xo power of 
 
 amendment reserved in— -Error in award — 
 Referred back for amendment — Where an 
 arbitrator makes a mistake in the heading of an 
 award in tiie christian name of one of liie ])ar- 
 ties tiie award will be referred back to him for 
 amendment, although the time for his making 
 the award has expired and the reference was by 
 consent of parties, and altliough no pf)wer of 
 amemlment was reserved in llie rule of refer- 
 ence. 
 
 Aiiiii.-i If (tl. V. C'Kil: 'I <il., -2 Olil., lli.'i. 
 
 :i8. Parol Siibinission Partition of land 
 
 Award Conclusive upon certain ))arties— 'i'iie \ 
 
 awardof arbili-ators in innsuanc.,' of a i>arolsub- 42. Reference ClanSC in ruU'S Of \OVa 
 
 mission setting tind tixing a lioundary line is Scotia Building Society — Usury - I'lainlill's, as 
 conclusive ipon tiu' parties consenting to and 
 acting upon tlie awaid. 
 
 In bs.'!."), two lirothers Markenzie ri'i'cived, 
 under a deed from tiicir father, a certain lot of 
 land, uiiich tliey continued to occupy togeiiier 
 
 Trustees of tlie X. S. Permanent iJenetit Ihiilding 
 Societ}-, advanced to defendant a sum of money 
 on the security of live mortgages, the foreclosure 
 of wiiich was sought in this suit. Defcmlant, 
 in his answei', claimed tiiat he was entitled to a 
 until IS.V.', when it was agreed lietween them release of a portion of the mortgagid property 
 
 umler tlie (illi rule, iiroviding "that tlie Trus- 
 tees shall lie empowered, by direction of the 
 boartl, at any ])eriod, to release any portion of 
 their witnesses a])peared. Tlie the property mortgaged, on being satislied, in 
 
 tliil there should be a partition, but no u lalten 
 submission nv bond v.as entered into. Arbitra- 
 tors were aci/ordingly appointed, before whom 
 and 
 
 that the 
 
 the brother- 
 lot was divideil, and each o*' the brothers entereil manner before mentioned, 
 into pos.session in se\eiahy of the jjorlion award- remaining portion of the ]Uoperty is of sutlicient 
 ed to him. Fifteen years after, one of the value tri secure the society."' Defendant alleged 
 brothers sold his portion to the defendant, and that the directors had refuseil sui-h release, 
 then i-onibincd with his brotlu'r to deny the although the aiiiounts due under the mortgages 
 separate hoMing, and thus render void his own had been largely reduced, and had further re- 
 deed. The awaril was not produced at the trial, fused to submit the matter to arbitration, as 
 but .secondary evidence of its contents was [uo- demanded by him mider the "iOth rule, [irovid- 
 duced. It did not direct any conveyance to be ing "that the board, for the time being, * * * 
 maile, nor was any executed by the Mackenzie's shall determine all disputes conceriung the 
 to one another. On these grounds plaintiff affairs of the society, * * ♦ which shall or 
 claimed that it was of no elfect. 
 
 may hereafter arise between the trustees, offi- 
 ///'/, Wilkins. .T., '//<•« »//)/</, that tlicMacken- cers, or other shareholders of the society, • * * 
 zies were bound by the submission which they and, if the decision be not satisfactory, refer- 
 had thus recognized and acted upon, and that ence shall lie made to arbitration." Defendant 
 the defendant having sntticiently established a : also pleaded usury, as invalidating the mort- 
 spparate holding, the verdict for plaintiff should gages, the society having taken, by way of a 
 be set aside. , l)onus or premium, a sum exceeding the legal 
 
 Woodhnrij v. (t'nh n, 2 Thom., '2'ht, and [htri.ion v. rate of interest. 
 
 Kins)iian, .James, 1, ap[)roved and followe<l. , //dd, that the rule providing for the partial 
 Afwkenziii v. Ih-odk, 1 N. S. D., •24,S. j release of the property left the nuitter to the 
 
115 
 
 ARMING. 
 
 116 
 
 discretion of the directors ; that the demand 
 and refusal of sucii release did not constitute a 
 "dirt'erence" or "dispute," which defendant 
 could insist on having referred to arl)itration 
 under the 'JOtii rule ; tliat, even in tlie absence 
 of legislation, jilaintiH's were justified in taking 
 the bonus or premium in addition to interest, 
 the transaction lieing in the nature of an 
 advance of partnersiiip funds, in wiiicii defend- 
 ant was interested in common witii other mem- 
 bers of the society ; and, were it not so, as the 
 evidence showed that Iheplaintitl's were entitled 
 to tile benefit of an act enabling them to take 
 such premiums, altluuigh their rigiit to do so 
 was not suflicientlj' set out, they wouhl be en- 
 titled to amend tiie declaration or reply. De- 
 fendant Iiaving alh'ged that tiie law had not 
 been complied with in the organization of tlie 
 society, relying on the objection tiiat the rules 
 were not duly certified as re(|uired by law, 
 
 Ilchl, tiiat, assuming tlie olijection to be prop- 
 erly pleaded and sustaine<l by the evidence, it 
 
 follow tlie award, as provided in the latter 
 clause of the submission. 
 
 Tory v. The Munirl/iality of Guyshoro, 
 5R. &«J., 3-J. 
 
 45. Swearing arbitrators— When arbitra- 
 tors are directed to be sworn l)efore a magistrate, 
 one of them l)eing a Justice of the Peace, may 
 administer the oath to tiie others. 
 
 In re Kenny, 2 Thorn., 14. 
 
 ARMI\G. 
 
 For self-defence -Lawftll — A vessel was 
 found upon the liigli seas buloiiging to tlie United 
 States, a nation professing to be at peace with 
 all tlie w(U'ld, and in amity with (ireat Britain, 
 
 armed and coiniiletely eciuipped for war, the cap- 
 
 ,, . , ., , , /. ,..•,,. ,, taiu assuming tile cliuracter, and performing the 
 
 would not lie available, as tlie plaintitis could i , . ^ i , • / i 
 
 . . ,, . ,. ., -^i ^ 1 duties of commodore, having otlicr armed ves- 
 
 sels under his convoy, with a regular system of 
 
 signals and martial discipline. 
 
 //i/il, that to carry arms for self-defence, and 
 the protection of person and pro))erty, under 
 certain restrictions and limitations, is undoubt- 
 edly one of the most sacred and imprescriptible 
 riglits of mankind, whctlier considered as indi- 
 viduals umler the law of nature, or in tlieir col- 
 lective capacities, as memljers of established 
 governments, under tiie law of nations. Tliat 
 sucli armaments in tliemselves, and without 
 reference to the particular purpose for which they 
 may be intended, are not unlawful, is a princi- 
 ple wliicli is implied and recognized in the cases 
 of The Maria, The PaitUn, and The Elmhe. 
 Nor is it of inucii conseipience wliether tlie ves- 
 
 sustain their action on tlie mortgage without 
 the aid of tlie statute. 
 
 Abiwn et a/, v. Fnirhankn, 1 R. & C, 407. 
 
 43. Statutory provision for arbitration- 
 No action till after reference — When by a 
 section in a statute it is provided tliat, in case 
 of disagreement l)etween certain parties, such 
 disagreement sliall be settled by arliitiation. 
 Ill Id, that no action will lie for matters which 
 ouglit, under tlie Act, to be referred to arbi- 
 tration. 
 
 McKenrJe v. McKay, '2 Thorn., 321. 
 
 44. Subinlssloji -Provisions as to costs- 
 Discretion of arbitrators not exercised — The 
 
 parties entered into a submission by which they I sels ^vere armed by public, or only private 
 referred all the matters in difference, etc., and .^^tiionty. Tliat is rather a <iuestion between 
 provided that tlie costs of tlie cause, and of ti,e American (Jovernment and its own citizens ; 
 the reference, or any matter relative thereto, ' ^■^g f,^,. .jg foreign nations are conceriieil, witliout 
 should be in tlie discretion of the arbitrators ; ' .^ disavowal on the part of tlie (iovernnient of 
 and, further, tliat judgment should he entered tiig United States, a permission either express or 
 uiion such award for the amount thereof, and of | t^cit, must be presumed, because no subject can 
 the costs of suit and reference in the same I j^e supposed to act so openly in violation of the 
 manner as if the verdict of the jui-y had passed. : i^ws of his own country. 
 
 The arbitrators made an award in favor of : The only question then is, tlie jnirport ami 
 defendant, liut said notliing as to costs. 
 
 Held, tliat the award must be set aside. 
 
 Per Rigby, J., that the cause should lie re- 
 submitted to the arbitrators. 
 
 Per McDonald, C. J., dissen/in</, that al- 
 though the provisions of the submission as to 
 costs were in apparent conflict, the intention was, 
 that in the event of the arbitrators not exercis- 
 in;j their discretion as to the costs, they should 
 
 ohject of such arming, and whetlier it be such iis 
 is consistent with the duties of neutrality. In 
 this case the vessel having carried contraband 
 articles to the Island of St. Domingo, a colony of 
 the enemy, Fi'ance, although a colony in a state 
 of rebellion, was, with her return cargo, con- 
 demned. Upon appeal the sentence of condem- 
 nation was approved, 17th March, 1803. 
 
 The Happy Couple, Stewart, 65. 
 
117 
 
 ARREST. 
 
 118 
 
 I. 
 
 II. 
 III. 
 
 ARREST. 
 
 OX MESNE PROCESS, 117. 
 
 IX OTHER CASES, 121. 
 
 ACTIOX FOR ARREST AND FALSE 
 IMPRISOXMEXT, 1'2-'. 
 
 I. OX MESXE PROCESS. 
 
 1. Affidavits as to abscoiHlIng- Conflict- 
 ing— On a ink' to si't asiilu a (.iniias and uanool 
 the liail-ltouil the ilufcndaut sworo tliat ho liail 
 III) intention of leaving; the Province until after 
 the (leterniination of the suit, aud then only for 
 a sliort time and with tiic intention of returning. 
 It ap|ieared on the other iiand tliat tlie defend- 
 iiiit liad stated his inteution of leaving the Pro- 
 \ incr; and iiad disposed of nil his property witli 
 the exeejitiou of a portion of a farm of little 
 value and was residing at the house of a brother, 
 
 liavini' no home of his own. 
 
 I 
 The rule was disciiarged. 
 
 Tallin )• V. CamiihfU, .3 X. S. 1)., TA'^. 
 
 2. Affldnrit as to absconding -Must state 
 
 grounds of belief — An atiidavit to hohl to Kail 
 nuisl set out tiie grounds of plaintiff's belief tiiat 
 defendant is about to leave the province. 
 
 Iilmi-1 v. 0'/irii')i, James, 44.'5. 
 Bariinfi-ad v. O'Xii//, .James, 44;i n. 
 
 3. Affidavits denying absconding — Afli- 
 
 davits in reply — Requisites — Where the 
 defendant in tiie atfidavit on which a rule to 
 set aside a cajiias is granted, swears positively 
 that he was not about to leave the province at 
 the time of his arrest, and had not, nor has any 
 intention of doing so. the affidavit in reply must 
 fiVAtii /(irli from wliich it can clearly be inferred 
 that it was his intention to leave, or the rule 
 will l)e matle alisolute. 
 
 If lint v. fftirhir, 1 Old., TOO. 
 
 4. Affidavit to hold to bail - Defects in 
 
 —Waived by voluntarily giving bail — Objec- 
 tions to the atiidavit to hold to ))ail, and to the 
 Older for cajiias, are waived liy voluntarily 
 giving bail and proceeding to plead, and cannot 
 he afterwai'ds taken advantage of. 
 Be Wolf ef at. v. Vineo, or Vineo, 1 X. S. D., 20. 
 
 •5. Bail-bond — Cancellation of— Where 
 
 defendant was pursuing ordinary calling and 
 possessed of large property— And claim satis- 
 
 celled, on the ground that he was jmi'suing his 
 ordinary business as carriage maker, had a large 
 stock of carriages on hand, had no intention of 
 leaving tlie Province, and, moreover, being the 
 holder of defendant's proniissoiy note, had 
 issued a summons and capias upon it a few days 
 before the present action was lirought, and had 
 therein given plaintiff credit for tlie very claim 
 sued for in this cause. 
 
 Held, that the bail-bond should be cancelled. 
 Mi/cev. iifewart, 1 X. S. D., .108. 
 
 0. Bail — Bond on capias — Compliance 
 
 with condition— A bail-bond was taken upon a 
 ca])ias issued out of tiie Magistrate's Court, con- 
 ditioned for the appearance of the defendant in 
 the suit or liis authorized agent. The attorney 
 ajijieared with a written authoritj- as "the 
 autliorized agent," the ])laintitl' olitained judg- 
 ment upon which an execution was issued and 
 returned »r</( I >V ///(•( »0(-i. In an action against 
 the security, 
 
 //i'l(/, aliirmiin.' the decision of the County 
 Court, tliat the surety's obligation had been dis- 
 charged by the appearance of the agent, and 
 that plainfitl' could not recover against him. 
 
 Wiiijltt V. Reevi'S, 3 H. & C, 303. 
 
 7. Bail -Order to hold to -Motion to 
 
 set aside — Grounds of— Appeal from the deci- 
 sion of a .Judge at Chambers, discharging a rule 
 to set aside an order to hold to bail, aud to de- 
 liver U]) the bail-bond to be cancelled. The 
 grounds of appeal were first, that the plaintitV 
 had no canst! of action against defendant when 
 the arrest look place ; and secondly, that defen- 
 dant did not contemplate such an absence from 
 the Province as justitied the arrest. 
 
 //('/(/, tliat defendant's affidavits did not 
 clearly cstalilish the fact of iilaintili" having no 
 cause of action ; and were further defective in 
 not being sufficiently certain as to when his re- 
 turn to the Province should take place. 
 
 Quaere, •Af^ to whether our Practice Act en- 
 ables the defendant, when arresteil to negative 
 under atiidavit iilaintiti's cause of action. 
 
 O'Duiinell V. Honciintan, 1 X. S. I)., 101. 
 
 8. Capias - Affidavit for in Magistrate's 
 
 Court— Capias issued liy Magistrates set aside 
 on the ground that it was issued and the 
 defendant arrested under it without an atiidavit 
 of the grounds of plaintiff's belief, as reijuired 
 
 ' by chap. 21, of Acts of 1879, sec. 3. 
 
 I McLean v. McKuij, 1 R. & (J., 383. 
 
 i 
 
 9. Capias - English bankrupt, privileges 
 
 lied -Plaintiff applied to have his bail-bond can- i of in this Pi-ovince— An English certidcated 
 
119 
 
 ARREST. 
 
 120 
 
 bankrupt is privileged from arroMt in tliis Pro- ] alfidiivit to liold to l).iil, unless its insufficiency 
 vince for any ilcl>t proviiMe iukUt his Kimkruiitcy ' is expressly stated as a ground in liis order nisi, 
 in Kngland. The piiuntitl", on the ITtli August, I Ibid. 
 
 1804, had drawn at Uangor, in tiie Statu of 
 
 Maine, in the United States of America, liills of 13. Caplas — Kclcase 0( dcbtor arrestCd 
 exchange (i)ayal lie sixty days after date) on the under capias — Levy on goods in possession 
 defendant, wiio was tlien a trader in London i of a third party under le.aae — Sale under such 
 and resident tiicre. 'i'he defendunt accepted the levy will not pass title — NL having been 
 bills of exchaii<.'c in Lomlon, Imt diil not pay aircsted under a writ of capias issued at the 
 them. He was adjudged a liankrupt on the instance of the plaintitV out of the Magistrate's 
 14tli Xoveni))cr, I8(i4, in tiie London Court of Court, gave a confession of judgment for the 
 IJankruptcy and sulise(iuently obtained an order amount claimed and costs, upon whicli judg- 
 of discharge. On tiie I'Jtli July, IStJli, being ment was entered and execution issued. After 
 tlien casually in Xova Scotia, he \\ as arrested f)n the giving of the confession and entry of tiic 
 a capias at the suit of tlie plaintitl' for the judgment, but before tlie issue of the execution, 
 amomit alleged to lie due on tlicsc bills. M. was released from .orest by plaiutitr. Cer- 
 
 //('A/, that tiie debt being provable under tlie tain goods of M. under lease for an uncxpiicil 
 bankruptcy in London, and the defendant having , term, were soM uiuler the execution after hav- 
 obtained an order of discharge f)r certificate ing been levied upon and returned to the lessees, 
 from the Couri of liankruptcy there, he was On the same day that M. was released from 
 privileged from arrest for tlic debt in this arrest, lie gave a bill of sale of the goods to ('., 
 Province. , who sohl to defendant, plaintiH' iiaviiig clainicd 
 
 Aim, that llie ordiT of discharge or ccrtiticato the goods, after tiie expiring of the lease under 
 was " suthcicnt e\ideiiee of tiie bi;iikriii)tcy." the levy and sale. 
 
 Constrttetion of Imperial Act. "24 and •_*,") Vic, 
 c. 1.S4, ss. Kil and 'J(l.'{, and of i'luvincial Act, 
 3rd R. S., e. l.T), s. -JS. 
 
 Mills V. 5/;;////, -JOld., .'t-JS. 
 
 10. Capias — Irroifiilaritics In order to 
 
 hold to bail and attidavit— An order to Imld to 
 bail anthori/ed the issue of a writ of capias 
 out of the County Court of the Province of Xf)va 
 Scotia. The Cfmimissioner before wlioiii tlie 
 affidavit for the order was swf)rii siirned iiini- 
 
 //(■/(/, tliat tiie voluntary discharge of M. by 
 plaiiitifl' operated as a discharge of the judgment, 
 and that no execution could issue subse(|uent!y. 
 
 Aim, that even if tlie discliarge of M. did not 
 operate as a discharge of the judgment, Jie sale 
 of the goods whicli at IJie time were in tiie legal 
 possession of anotlier, and not suliject to levy, 
 was unautliori/cd, and would not pass title. 
 Fraser v. Jenkins, '-'O X. S. H., (S R. & li.), 494. 
 
 14. Capias— Writ of -Vilas— Second orij?- 
 
 self "Commissioner County Court, County of inal— A .second original capias may issue upon 
 Halifax." i the same aflidavit. 
 
 Hvhl, iiisufiicient ground for setting aside the 
 writ. 
 
 Cttij of /IdUfa.v, V. Bentleij, (i R. & ( i,, -I'l ; 
 OC. L. T., US. 
 
 11. Capias -Master of packet -Leaving on 
 
 short voyage — Tlie master of a packet a1)out to 
 leave on a short voyage is not liable to arrest 
 under capias. 
 
 liimesv. O'Bncn, James, 44.S. 
 
 Where the f)riginal and alias writs are not 
 sutlicicntly connected, the Court will reject the 
 alias cause as surplusage ami sustain the writ as 
 a second original. 
 
 Quaere, whether the rule is imperative that a. 
 term must not intervene lietween an original 
 writ and an alias, 
 
 Hollmul V. Bovi/er, James, 4."). 
 
 15. Order to arrest— For unliquidated 
 
 12. Capias-Order to hold to ball-Suffl- damages-Construction of 5th R. S., c. 104, 
 
 ciency of affidavit — When the sudiciency of the 
 affidavit to hold to liail is attacke I, the rule is 
 to set aside the order, and not the capias. 
 
 Murphy v. Treu/iolni et <il., 2 Tliom., 228. 
 
 Xo supplemental affidavit in support of the 
 
 order 7iisi will be received after party appears to 
 
 show cause against su(;h order. 
 
 Ibid. 
 
 A party cannot object to the sutfieiency of the 
 
 O. 44. R. 1.— Defendant, an officer of the ship 
 "Ivy" was placed in jail under an order for 
 arrest in a suit to recover damages for an assault 
 and battery committed upon plaintiff, a seaman 
 on boanl the vessel while the ship was at sea j 
 and also for wrongfully depriving the plaintiff of 
 his clothing, etc. 
 
 An application to a Judge at Chambers for 
 defendant's release from arrest having been made 
 and refused, defendant appealed on the main 
 
121 
 
 ARREST. 
 
 122 
 
 ground that under order 44, rulo 1, tliere was no 
 iim'nt for unlii|iiidiittMl daniii)j;eM. 
 
 //('/(/, tliat tlie Words of tliu order anil rule 
 relied on eniliraci'il the whole authority in rela- 
 tion to ai'rest conforreil liy s. .SI, e. 1(4 II. .S. (4tii 
 series), that it wan not to he assumed that the 
 fianiersof the rule intended to de[)rive litigants 
 of tlie right to arrest eonferreil hy that statute 
 in the ahsenue of legislation, and that though tiie 
 r\de was not clear in point of ex])ression, the 
 learned .Judge at ('handlers had taken a prijper 
 view as to its intention. 
 
 ])efen<lant's ajipeal wa.s dismissed with costs. 
 
 Tlie words of the rule "in wiiieh the defen- 
 dant is now liahle to arrest " refer to all eases in 
 wliiih the defendant could have been arrested 
 under s. .31, c. 94, R. S. (4th series). This view 
 is aided hy the words of the order in relation to 
 the security to he given. 
 
 Mhlel V. Gordon, 7 R. & G., 518 ; 
 8C. L. T.,r)9. 
 
 16. Order to hold to ball— Requisites of 
 
 — An order to hold to hail must specify a period 
 within which a capias may be issued. 
 
 Jiiinen V. O'lirieii, James, 443. 
 
 II. IX OTHKR CA.SES. 
 
 1. Arrest of defendant— Effect on mort- 
 
 gage given by him to secure hia sureties— i 
 Parker and Grant having recovered a verdict j 
 against F., a rule iii-:i was taken out to set it 
 aside. T. & E. I)e\V. & Co. became sureties to , 
 respond the final judgment, and took a mortgage 
 from F. to secure them from loss on account of 
 their bond, and also to secure the amount of an 
 existing indebtedness. The rule niti having 
 been discharged and judgment entered against 
 F., an execution was issued under which he was 
 arrested and placed in custody. While he was 
 in custody, and after the present suit was 
 brought by plaintiff as assignee of DeW. & Co. 
 against F. to foreclose the mortgage, and after 
 said F. had answered, his estate was placed in 
 insolvency, and C, his assignee, intervened and 
 became a party. Parker and Grant also became 
 parties, as interested in the subject matter. 
 
 Jield, first, that the insolvency of F. did not 
 prevent the plaintiff from proceeding with the 
 foreclosure, and, secondly, that Parker and 
 Grant had not lost their lien on the mortgaged 
 property in consequence of their having arrested 
 F. under the judgment. 
 
 Tucker, Aisiff7iee, v. Creighton, Assignee, et al, 
 
 R. E. D., 261. 
 
 Set, «/«o-EXECUTION— SHEBIFF— 
 
 HI. A( TIOX FOR ARREST AM) FALSE 
 I.MI'RISON.MKNT. 
 
 1. Arrest- Mailcious-Keasonable cause- 
 Charge of Judge — Evidence of judgment — 
 Improper reception of evidence — On tiie trial 
 of an action foi' malicious arrest the .luilgeisnot 
 required, wlien the evidcm.'e tcjuching liie facts 
 upon whicii tile ciuestion of reasonable cause de- 
 pends is eontrailiitory, to tell i\w jury whether 
 or not tliere was reasonable o; proliahle cause 
 for arrest, but ilirects them projierly in telling 
 them that, if the}- tinil one way on the evidence, 
 there is reasonable cause, if they find otiierwise 
 there is not. 
 
 No record being filed in the .Supreme Court of 
 judgments in causes ajipealed from Magistrates' 
 Couits, the termination of the jiroceedings under 
 which tiie arrest was made issuliicieiitly pro'.ed, 
 in support of an action for malicious arrest by 
 the testimony of a competent witness who heard 
 the judgnieiit on the appeal pronounced in open 
 Court by the .Tudge. 
 
 One hundred and fifty dollars not excessive 
 damages for arrest and detention by a constalilo 
 for lialf an hour, where the plaintiff was put to 
 tiie expense of defending a suit before a magis- 
 trate and prosecuting an appeal. 
 
 Cox V. Gunn, '2 R. & C, .VJS. 
 
 On aji/Kd/ fo fill Sujinnni Court of Canada, 
 
 Hold, reversing the judgment of the Supremo 
 
 (?ourt of Xova .Scotia, tluit such evidence was 
 
 inadmissible, and was not proper evidence of a 
 
 final judgment of the Supreme Court of Xova 
 
 Scotia. 
 
 Gxmn V. Cox, 3 S. C. R., "290. 
 
 2. Arrest and imprisonment under con* 
 
 viction— Action for — Conviction must be set 
 aside— Xo action will lie for an arrest and im- 
 prisonment under a conviction which has not 
 been set aside. 
 
 ilesservey v. Wallace, 1 N. S. D., 34. 
 
 3. False arrest and malicious prosecn* 
 
 tion — Action for— Proof of proceedings in 
 Police Court — In an action for false arrest and 
 malicious prosecution plaintiff proved that de- 
 fendant delivered two gold rings to him to be 
 made into one, that defendant refused to receive 
 the ring so made, on the ground that the price 
 was too high, that defendant afterwards de- 
 manded the ring, which plaintiff refused to give 
 up without payment, whereupon defendant 
 caused plaintiff to be arrested and confined in 
 the police office from Saturday till Monday, 
 when, upon being brought before the Stipendiary 
 
123 
 
 ASSAULT. 
 
 124 
 
 Magistrate in tlio I'dicc ('(.int. lie viis ilia-' ARTS AND SCIENCES. 
 
 L'hargfil. 'I'lii' ('(iiiiily Court Judgf dircctcil a 
 
 IinnNiiit and granttcl a ruh; for apiieal. ' IVtition praying liiat i.x'rtain paintings and 
 
 I/M, tliut till.' noM Hiiit Mas irregular and prints, wliicli wire lapturnl on lioard tiiu Anar- 
 
 must 111- .set aside, anil tiiat tlie following record ^ lean vesnel called the " .Maniuis du Soineruelt-a," 
 
 of the Police ('o\irt «as .siillicient e\ iilence of niiglit l)e re.stcjred to the petitioner on helmlf of 
 
 the teiininatii f the proceedings: " ,1. J. I a scientitic estahlishnient at I'hiladelphia. 
 
 IJackstruni! ciiarge- stealing two rings (pros.] //cA/, that the arts and .sciences are admitted, 
 J. Beck), discliarged, amongst all civili/cd nations, as forming an 
 
 exception to the severe right.s of warfare, and as 
 entitled to favor and i)rotection, Th"y are con- 
 sidered not as the jieculiuni of this or of that 
 nation, hut as the property of mankind at large, 
 and as helonging to the common interest of the 
 whole sj)ecies. Restitution of the property 
 decreed. 
 
 The Marquis de Somerueles, '2nd Case, 
 Stewart, 482. 
 
 liavhstntin v. livih, ,'> K. »&(;., ,">;<S. 
 
 4. False Imprisonment Action for — 
 
 Against magistrates— Convictions in the al- 
 ternative - I'laintitl' was charged before the 
 .Stipendiary Magistrate for the City of Halifax 
 with lewd conduct and keeping a room, or house 
 for prostitution, and was lined S.'iO ; and, in event 
 of nonpayment, oidcred to he inipiisoncd two 
 months, 'i'liere Mas evidence that the magis- 
 trate ordered liim into custody, where he re- 
 mained till tlu' line was pai<l, hut this was not 
 put to the jury. The conviction had been 
 removed by certiorori \xni\ quashed. 
 
 //(■/(/, per McDonald, C. J., and McDonald, 
 J., that the magistrate Mas not lialilc to an action ' Justification— 32 and 33 Vic, c. 29, s. 132, D. 
 for false inipri.sonnunit. — Two assaults committed — One sued for — 
 
 ASSAULT. 
 
 1. Action for, against Police Constable— 
 
 Per Rigby ami .Smith, .T.T., that the convic 
 tion in the alternative was bad, and the impris 
 onment thereunder unlaMfiil. 
 
 Plaintiff waives one — The plaintiff having been 
 arrested on vieM', and imprisoned by defendant, 
 a police constable, and his superior oHi-cr 
 Marfcr v. I'njor, 4 R. & (!., 49S. \ brought an action of trespass against the former 
 
 j and recovered a verdict. The declaration con- 
 tained only one count for an assault and false 
 imprisonment, Mhile the two distinct assaults 
 were proved at the trial, the second being the 
 one connected Mith the imprisonment declared 
 on. Hdd, that this m'.is a fatal objection, the 
 plaintiff not being at liberty to Maive the 
 assault first proved, and give evidence of 
 another. Under Doni. Stat., 32 and 33 Vic, 
 c. 29, s. 132, the defendant being a subordinate 
 police officer, may give evidence to show- a justi- 
 fication under the command of a superior officer 
 without pleading such justification specially. 
 
 Peppy V. Grono, 1 R. & C, 31. 
 
 5. False imprisonment— Action for— Mas- 
 
 ter of vessel detaining one of crew— The master 
 of a steamer lying in Halifax Harbor, having cause 
 to suspect plaintiff of stealing, and having pro- 
 duced Marrants to be issued against him, con- 
 fined the plaintiff Mhile the search Mas being 
 made, in order to prevent him from communica- 
 ting with the rest of the crew. An action for 
 false imprisonment M\as brought. 
 
 Held, that the master had acted within the 
 scope of his authority. 
 
 Leith V. Trott, 4 R. & G., 120. 
 
 6. False Imprisonment— Action for- Re- 
 moving party from premises— Defendant order- 
 ed plaintiff off his wharf and sent for a police- 
 man, who came and took the plaintiff to the 
 lock-up M-here he placed him in a cell. 
 
 HeUl, that defendant had a right to have him 
 removed from the wharf, and was not responsi- 
 ble for the subsequent arrest and imprisonment. 
 Hubley v. Boak, 4 R. & G., 82. 
 
 ARTICLES OF C LERKSHIP-FILING OF— 
 See ATTORNEY. 
 
 2. Action for before two Justices dis- 
 
 missed — No appeal allowed — 3rd R. S., c. 
 1, a. 8 — Plaintiff instituted an action under 
 s. 23, c. 147, 3rd R. S., before two Justices of 
 the Peace against defendant for an assault, and 
 the Justices, on hearing the evidence, dismissed 
 his complaint, either deeming the offence not 
 proved, or so trifling as not to merit punish- 
 ment. Plaintiff thereupon appealed to the Su- 
 preme Court, and the Judge presiding at Annapo- 
 lis dismissed his appeal, but gave him a rule 
 nki to bring the case for argument before the 
 whole Court. 
 
12.-) 
 
 ASSEMBLY. 
 
 126 
 
 y/eW, that in a caso of this nature plaintiff' was 
 iiiit cntitltil ti> a])iH'al from tiiu ilfciHiim of the 
 Jiolicts of tlu' I'eiici'. 
 
 t'oiisinii.'lioii of ;tnl K. S., u. 1, i*. H. 
 
 Chedeij v. (irassie, 1 X. S. I)., 191 
 
 :). EJcctlnv; person ft'oni building -Man- 
 
 ner of ejecting— Mimdirection in not leaving 
 (lUfHtion to jury— I'laintill' was ojected from a 
 liuilding ill ))osNi'ssiou of ilcfi'iidant liy (lroi)i)iug 
 liiiu fioiii a door or window upon a ))latform 
 lii'low, in ct>nsc'(]Uont.s of which plaintiff "» wrist 
 was fractured. The jury, in answer to (jucHtions, 
 found that the injury was occasioned by defend- 
 anl'.t act, liut tliat defendant before removing 
 him had recpiested him to leave, and lliat, in 
 effecting his removal, defendant did nothing 
 more tiian was necessary for the purpose, 
 
 //(/'/, that there should lie a, new trial, on the 
 ground of misdirection in not leaving it to the 
 jiuy to say whether the place at which plaintiff 
 M as ejected was a fit and suitable place for the 
 piii'))ose. 
 
 We;vtherbe, J., dlisenthnj, 
 
 Kdhj v. lihodM, 6 R. k (',., r>24 ; 
 6 C. L. T., 542. 
 
 4. Raising clenched fist ns though about 
 
 to strike— Interference with Pewholder — Plain- 
 till' and the two defendants, M. and H., were 
 attending service in a church of which plaintiff' 
 anil ^I. were pewholders and H. the cliurch- 
 wardcn. M. conceis ing that plaintiff' had given 
 him cause of ofFenoe and was interfering with 
 his family, came to the door of plaintiff's pew, 
 and, raising his clenched hand as though to 
 strike plaintiff', ordered him out of the church, 
 at the same time applying to him opprobrious 
 epithets. Plaintiff' refused to go out until the 
 serxice was over ; whereupon defendant H. ap- 
 proached and also ordered plaintitl' to go out, 
 saying that if he did not he would have him 
 expelled. Plaintiff' thereupon, wishing as he 
 alleged to avoid a disturbance in the church, 
 Went out. Neither of the defendants had any 
 personal contact with the plaintiff, or made any 
 otiier show of force than as already described. 
 Plaintitl' sued for damages for an'assault and for 
 wrf>ngful interference with his right as a pew- 
 liohldr in the church. 
 
 The jury found a verdict against M. only, and 
 acquitted H., and M. moved to set the verdict 
 aside. 
 
 Held, Wilkins, J., dissentivg, that M. had 
 
 been guilty of a " disturbance in a church " and 
 
 of an assault, and that the verdict should stand. 
 
 In<jlefidd V. Merkel ct al, 3 N. S. D., 188. 
 
 I ASSEMBLY, UOISE OF. 
 
 1. Constitutional' powers of -To punish 
 
 for contempt Exclunion of member for past 
 oft'ence — Plaintiff', lieing a mend)er of the Iloaso 
 of Assemlily of Nova .Sct)tia, in a speech made 
 on the ffoor of the House, and while the House 
 was in session, charged the Provincial .Secretary, 
 also a iiieml)er of the House, with iiaving altered 
 and falsified certain pul)lic records and grants 
 of tiic Crown Land Department, after the 
 signature of the (lovernor had been ap|)ended 
 thereto. A connnittee appointed to investigate 
 the matter reported that they found the charges 
 altogethei unfounded, and that the evidence 
 jiroduced had co.npletely exculpated the Hon. 
 Pi'ovincial .Secretary therefi'om. A resolution, 
 l>ased upon that report, was passed by vote of 
 the majority of the House on April '28th, recit- 
 ing the charge, the investigation, and report of 
 the comnuttee, and concluding with an expres- 
 sion of the opinion of the House, that plaintiff 
 in preferring sucV. charge •,\ithout due prelim- 
 inary investigation had been guilty of a breach 
 I of privilege, and that he should lie dealt with 
 I according to tlie rules and jiractice of Parlia- 
 ment. Subsequently, on April 3()th, a resolution 
 was passed reciting the charge, etc., and requir- 
 ing the plaintiff to appear at the IJar of the 
 House, and with the doors open, nuike an 
 apology in terms dictated by the House. 
 Plaintiff having declined to comply with the 
 reipiirement, a roiolution was passed declaring 
 his refusal to make such apology a contempt of 
 the House, and requiring him fortliwith t' 
 withdraw until such apology should be n'.ue. 
 Plaintiff having declined to withdraw, n resolu- 
 tion was passed to the effect that he iiould be 
 removed by the sergeant-at-arms and kept 
 excluded until he shoul ^ signify his willingness 
 to make the apology required to the House. 
 The resolution was at once carried into eft'ect, 
 and plaintiff' brought action against the speaker, 
 the sergeant-at-arms, au'l certain members of 
 the majority that carried t'ne resolution. 
 
 Htld, that the defendant's justification must 
 depend solely on evidence connected with the 
 subject referred to in the resolution, and that 
 evidence of the misconduct on the part of the 
 plaintiff on other occasions was irrelevant, that 
 the House of Assembly, in passing its several 
 resolutions, had in effect adjudicated upon an 
 alleged contempt on the part of the plaintiff' in 
 refusing to make the apology required, and in 
 so doing had exceeded its constitutional power, 
 that as there was nothing to indicate that the 
 House had taken action on account of any 
 unparliamentary or disorderly conduct of plain- 
 tiff calculated to interfere with the performance 
 
127 
 
 ASSESSMEiNT. 
 
 128 
 
 of its legislative duties, and as the jury had 
 found, under the eliarye of tlie Judge, liiat, the 
 exacting of tlie apology was for a past oU'enee, 
 and plaintiil' was exulu(le<l because lie would 
 not comply with the rcijuirement, the verdict, 
 which was for the plaintiff, could not he dis- 
 turbed. 
 
 The 32nd rule of the House, prescribing tiiat 
 in cases not otlierwise provided for the House 
 shall be guided l)y the rules, usages and forms of 
 tlie Imperial I'arliameiit, does not confer upon 
 tlie Asseml)ly of Nova .Scotia the power to punish 
 for a contempt. 
 
 WoodiroHh v. Trooj) it nl., 2 R. & C, 84. 
 
 (Pending appeal to Supreme Court of Canada, 
 defendant Troop died. Landers, one of the 
 other defendants, carried on the appeal.) 
 
 On appeal to the SnpreniK Court of Canada, 
 
 Held, aifirming the judgment of the Supreme 
 Court of Nova Scotia, that the Legislative 
 Assenibly of the Province of Nova Scotia has, 
 in the alisence of express grant, no power 
 to remove one of its meniliers for contempt, 
 iniless he is actually obstructing the business of 
 tlie House ; and W. , having been removed from 
 his seat, not because he was obstructing the 
 business of the House, but because he Mould not 
 repeat the apology retjuircd, the defendants were 
 liable. 
 
 Kidky \. Carxon, 4 Moore, P. C. C. 63, and 
 Doyle V. Falcono; L. R. ]. P. C. App. 328, com- 
 mented on and followed. 
 
 Lander-i v. Woodiuorth, 2 S. C. R., 158. 
 
 ASSESSMENT. 
 
 L OF BANKS, 127. 
 
 L IN CITY OF HALIFAX, 129. 
 
 in, OP DYKE LANDS, 129. 
 
 IV. IN NEW GLASGOW, 131. 
 
 V. OF RAILWAYS, 132. 
 
 VI. FOR SCHOOL RATES, 136. 
 
 VII. Of SHIPPING, 139. 
 
 VIIL REMEDY WHEN RELATIVELY 
 
 TOO HIGH, 141. 
 
 I. OF BANKS. 
 
 1. Act Incorporating town of \ew Glas- 
 gow—Acta 1875, c. 49, as. 46 and 52, 4th Rev. 
 Stats., c. 21, a. 67- Certiorari —The Act of In- 
 corporation of the town of New Glasgow, in 
 section 46, provided that the corporation should 
 
 assess, collect, and pay over wiiatever moneys 
 were recjuired for poor-rates, and all other (ex 
 cept school) rates, and should have within tiie 
 ti)W)i all the powers relating tliereto vested in 
 the sessions, grand jury, town meeting, etc. 
 The r>2d section empowered the town council to 
 make by-laws and rules touching all matters 
 witliin tlieir authority, including rules for regu- 
 
 ^ lating tlie mode of assessment anil levying tiie 
 same, which by-laws, when approved l)y the 
 
 . Governor-in-Couiicil, should have the force of 
 
 i laws. Tiie ))V-laws so made defined iiersonal 
 property for tlie purposes of assessment, so as to 
 
 I comprehend all goods and chattels, and provided 
 for the trial of appeals from tlie assessment. 
 They contained a further provision, that the 
 
 j roll, when finally passed, should be valid, and 
 
 j bind all parties concerned, notwithstanding any 
 defect or error committed in or in regard to it. 
 
 i The Bank of Nova Scotia, doing business at 
 New Glasgow through a branch, ajjpealed from 
 its assessment, and the appeal having been heard 
 in the mode provided by the by-laws, the assess- 
 
 I iiient was coiitirmed, and a warrant issued, in 
 
 I pursuance of which a levy was made on books 
 
 1 of account of the bank, and on a number of 
 promis.sory notes, the properly of the bank. 
 
 ! The bank having thereupon brought the assess- 
 
 i ment and wai'rant up by certiorari, 
 
 \ Held, that sec. 67, of cap. 21, R. S., did not 
 apply to the case, being confined eo nomine to 
 proceedings of the sessions, that the levy on 
 promissory notes was good, that the provision 
 of the by-laws making the assessment final and 
 binding, notwithstanding defects or errors, 
 did not prevent the Court from reviewing it 
 under writ of certiorari, and that the certiorari 
 would lie in such case if the affidavit disclosed 
 sufticient grounds, the scope of the writ being 
 wider here than in England. 
 
 The Court, after ruling as above, quashed the 
 certiorari, without costs, sutKcient grounds not 
 having been shown for setting aside the assess- 
 ment. 
 
 In re A'<'<f'<'^ment of the Bank of Xora Scotia, 
 by the Tov:n of New Glasgow, 3 R. & C, 32. 
 
 2. Banks — Personal chattels, definition 
 
 of— By chapter 45, R. S., (3rd series), "Of 
 County Assessments," section 15, it was enacted 
 that the words " personal estate " and "personal 
 property," for the purpos>3.s of the act, shall be 
 understood to include all such goods, chattels, 
 and other property, as were enumerated iu 
 Schedule A, thereto annexed, and no other, the 
 only portion of Scliedule A applicable was as 
 follows: "All personal chattels of every kind 
 and description at their actual cash value." 
 
12!) 
 
 ASSESSMENT. 
 
 130 
 
 The Hank of N'iiriiinutli li.i\ in;: lici'ii iissonscd 
 Vilnlcr '.lie aliovf euiU'tini'lit, ,is jicisanal fstati', 
 f(ir SL'O.dOll, the avfi-agu aiiiiMiiit nf lasli cu liaiid, 
 aihl till- Sl()U,(MMt casli lent out, 
 
 //(■/(/, that the hank was liahlo tn lie assessed 
 for the average amount of slock on hand and 
 the value of ))ei.son;il propeitj-, exehisive of 
 stock lull not for the amount of cash lent out. 
 
 The oliMi^e •• personal chattels" means rjiily 
 such thinu's as animals, liou>ehoId stulV, money, 
 jewels, corn, ganiielits, and eveiylliing else that 
 eaii lie put ill iiiniioii and tran.^feifed from ))!aeu 
 to ]ilace, liut does not ineliule eho.-es in action, 
 notes of hand, lioiiils, anil seeiifities for money 
 loaned or due, v\hieli may he- I'ealized U])oii hy 
 action or >iiit. or ctherwise. 
 
 /„ ,-. I'lir li'iiil: I,/ Yiiriiinnlli, -J X. .S. {).. .'{(IS. 
 
 :!. liiiiiks - Tax oil Dominion notes 
 
 Authority of Local Le<;i.slature to impose — 
 
 'i'lie l.oeal Legislature has authority to enact a 
 law imposing a tax on tlie dominion notes held 
 liy a liauk as i)ortiuii of its cash reserve, tiiider 
 the l)omiiiion Act relating to " lianks and liank- 
 iiig," i;il \'ic.. c. ."i, s. 141, and iiider llie liy- 
 lans of the town of \\'iiid.-.or such property was 
 held to he jiroiierly in<liidcd liy the assessor.s in 
 their valuation. 
 
 Tlv Toti-ii of \]",iid<or V. Tin: Comm< i ial 
 
 liiiiik of Wiiidior, 3 R. cV C, 4--'(». 
 
 II. IX (TTV OF HALIFAX. 
 1. tity of Halifax Acts of IS«4, c. 81, 
 
 s. 370, N. S. — Reqiii.sitea of -The requisites 
 of section .STO, of the City Act, chap.Sl, Acts, 
 ]SI)L are not suilieiently complied with liy a 
 certiticate stating merely that the defendant has 
 hccn assessed in a particular amount, of which 
 he has had notice, and that the amount is due 
 and unpaid. Tlie certiticate niiisl go further, 
 and show that the amount has not lieeii collected 
 and paid over under the warrant of distress pro- 
 viileil for hy section 309, 
 
 T/ie Oil!/ of Halifax v. Ikunr, 1 N, ,S. D., (it». 
 
 .S'm, ?(/vo, Iifra, \"1I., -. 
 
 in. or DYKK LANDS. 
 
 1. Dyke Lands - Acts 1808, c. 24 - Itli 
 Rev. Stat,i., e. 21, 13. 16; cf. 5th Rev. Stats., 
 c. 58, s. 5 -4th Rev. Stat., c. 40, s. 15, same 
 as 5th Rev. Stats, c. 42, s. 15— Under Act ISdS, 
 cli. -Jt X. S., the Windsor & AnnapoILs Railway 
 Company arc liable to be assessed for the niain- 
 tenaiico of the dyke protecting the marsh over 
 which the track of theii- road iJasMCs, owned by 
 5 
 
 them, section Hi of chapter "JI, 4tii I'ev, Slats., 
 ap])lyiiig only to county assessments ; and re- 
 course need not be had to the land itself under 
 section ir> of eha])ter4<(, 4tli Rev. .Stats., as that 
 section i-efers only to the original construcliou 
 of the iljke where the owner has ntit consented. 
 liroirn v. Windsor ^- .liiiiiipolix Itailiniii Co., 
 
 •_' K. & (i., t.'{(»; 
 
 •JC. L. T., •JH-J. 
 
 2. D.vkc Lands - Assessment when rate 
 
 exceeds $1.50 per acre utli Rev. Stats., e- 
 42, s. 8 — The commissioner of a dyke made a 
 rati' amounting to more than ."^l.-'iO jier acre, 
 willioiit calling the proprietors together under 
 the statute, .'itli I!. S., call. -*-' ''^■'-- '*^- 
 
 //fill, that he had no power to do so. 
 
 (Jiiiirrc, I" r Hitchie, .1., whether the conimis- 
 sioiHi could levy an assessment foi' costs. 
 hi re Jlixlioj) iJiihc, -'0 X. S. 1!., (s It. i\: (;.), tj,"). 
 
 3. Dyke Lands Hate Dainai^es, how 
 
 valued - Cost.s included in rate 5th Rev. 
 Stats., c. 42, .s. 20 -A dyke rate assessed liy the 
 commissioner included, be-ides the legitimate 
 expenses, three sums: (1), for damages to lands 
 of one of the owners, valued by assessors ap- 
 pointed by the owners, instead of being agreed 
 upon or valued by freeholders, as ]ioiiiled out in 
 section "JO of chaptei' 4'2, I!. S. ; (2), costs 
 ] incuri'cd by the commissioner in liringing an 
 I unsuccessful action for dyke rates against one 
 of the ]iroprietors ; (.'{), commissions on the 
 whole sum, including the above items. 
 
 //(•/'/, that items 1 and 2 could not be allowed, 
 and that their disallowance involved a reduction 
 of item .'{ ; that, therefore, the rate must lie 
 (piasiied with costs. 
 
 J/t'ld, farther, that the objection that tie writ 
 of icrtiiiriiri \\i\ti too late, was not available at 
 the present stage of tiie proceedings, but shouhl 
 have been taken on a substantive muiion to 
 quash tin; writ. 
 
 In re Bishop />///.■?, 2(1 X. S. R., (>S R. i*c ( 1.), 2ti;?; 
 
 8C. L. T., 44G. 
 
 4. Dyke and marsh lands -4th Kev. Stats., 
 
 c. 40, s. 27, aame a.s 5th Rev. Stats., c, 42, s. 37 
 — The Wickwire dyke, being constructed out- 
 
 I siile of, and atlording valuable protection to, the 
 Grand PriS dyke, previously constructed, an 
 appraisement was made under the statutes then 
 in force, identical in terms with 4th Rev. Stats., 
 e. 4(1, s. 27, by which the proprietors of the 
 CJrand Pre dyke were required to pay to those 
 
 1 of the Wickwire Dyke £19 annually. This 
 sum, so settled, was annually paid by the pro- 
 prietors of the Grand Pre marsh as long as that 
 
131 
 
 ASSESSMENT. 
 
 132 
 
 niarsli iccimvciI any pmlcTi inn frnni tlic unlcr .ill oilier rales, mmiI i,()iifcrri;il u[)on tiiu coriiora- 
 (lyke. Ill iHi;!), ,1 liiaxy ^'ale and uiiuMially lion all llii' ifiHcrs I licri'tofori; vi'hIiMl in tlirj 
 'iij,'li tiilc l.'inlii: ihc iiiilcr ciyUi- ami sn)ilner;;eil .Scssinns, ( ir.ind .) iii y amlTow n Mi'i'l inj/s, willi 
 tilt; \V'ii:k«iic: niar>li, ami llic- ilykc was iiol, |)(iwcr to make liy lii^-.s hiilisl il iiliiig HHxr.s.'^niciil 
 fully ri'pairi'il until H7 1 , «liiii tin- iiropric'lorM in lii-u of .slatuti; lal.or, and to make, all rules 
 called a. meet iii;^ of I he |)ro|)ilel ors <if I lie « linle necM-.s.sary for tlie creating' and (.ondiiet of I lie 
 level, liad freeholder.^ ajipointeil as liefore, and police and niiiiiiei|ial court, of llie town, ami lor 
 ohtajiied from I hem an au ai d of .■'■JIM), to l>e paid rei.'iilat iiij^' I he mode of asHcssment, and levying 
 iinmiallv h\' the |)i iipi leior- of the Craiid I'le l)ii' same, and t.'c'iierally for all purpoM-s eon- 
 dyke. ne(;l.(Ml uilh or ailed in;.' the internal manage- 
 
 /'(•/■ I'itehie. Iv .1., ineiil. c,r ;.'o\eriiment oftliel.oun, 
 
 //</(/. thai the priipriei.ii.-, of tlieCrand I'ri' //r-A/, thai ilie corporation could not, under 
 
 mar.-h craihl iiol lie cdlcij upon lo coiiiiiliiilc i h,.,-e pro\ i.-ion,-, i->talili>h a ('ouit of Appeal 
 
 towards tin- repair,- ol I he Wickuire il\kc he ;,|,,| Hi. vision, \Mtli reference lo assessiiielils, 
 
 yond I he a.nniial sum oricinally sell led. Ilelend \i ilh pou ei 1 o admilii-l er oath.-^. 
 
 ants lia,\iiit; contended thai they could not l.c 1,'ndcr a li\ lau of i he 'lou ii of \eu (;las;.'ou, 
 
 rci|uircd to c.,nl rilaite al a 11, a,- I licii nia r,-h ua,- pro\ idin;.' I li.i I all rciland pcr.-onal eslat e in I la; 
 
 •inly part ially eiic|o-cd and nol prolecleil l,y the |.,un should he lialile lo t.ixation, 
 
 Wickuire dyke; and, fiiilher. llial llnrc had /A-A/, that In.-iirancc and h.nik stocks ouiad 
 
 hcen n rcL'ularit ic.- in 1 he or!L.'inal pi occcdin;.'.. |,y rc,--idc-iils of I be lou n, in companic,- not, doing 
 
 //'/'/, that lia\inL.' .Hi|iiie.-ced in the annual lur-iness in thelouii. ueienot liahlc lo as.se.^.s■ 
 
 |iaynicnt,- tor upuaid- ot lueiily In e yen ,-, I hey n^cnl. 
 
 oonid not now rai,-e such a ipiesl ion. iuid ihai W here I he .\,- (■,~,-uicnl llo'l was amendeil hy 
 
 the alleged irre;.'ularit ie.- could only lia\cliecn ihefoiirt of |!e\i-i(ni. a, commit t,ee chosen from 
 
 lakeii advaiila-e of hy ,< /■//., /■((;•/. I he ( oiincil, pnr,-ua lit toa hylaxv.foi' I he piir- 
 
 II ir/.ifii r \ . (iiiiilil, I!. 1'!. l).,'Jl."i. pip.-c of review ing t he assessinenl, ami the aelimi 
 
 ( )ti iiiiiKiil IKiiii llic Jiiiliii: id I'.ijiiilil, .if llie('oiiil of |;e\i-ioii was conlirined hy tlio 
 
 lhl<l,\ ha I I he ,-l at llic con hi not he a -econd lime Council, 
 
 invoked, and Ihil I he proprieloi.- of thcCi.iiid //./r/. thai a uril of -v ,^''i/";'/, addre.-scMl t'l 
 
 I're dyke ciaild not he called upon toconlrihulc il,,. ('(,iirl of lle\i-ioii and the 'I'ouu ( 'leili, 
 
 aiiyt hing heyond the sum of 1 1!), originally .-ei - ,.(iiihl he su,-tained, though otherwise if it hid 
 
 tied. hefendants having conicnded thai thej |,een a,ddre.^scll only to I lie ( 'oiirl of l!e\ision. 
 
 could not he rei|iiil'ed lo conlrihute al all, as 
 their dyke was not protecied in u hole liy the 
 Wickuire dyke, Ihlil, that having ac(|iiie.sced 
 in the annual p.iymcnt from 1>>IS dounviards, 
 and set out in Llieir aiisu er t hat, I hey liadolleriil 
 and wfVf willing to pay the amount after 1 S7 1 , 
 when the repairs uerc conipleled, il uas loo 
 lale for' them now lo raise ,• mih a c|Ui'sliori. 
 
 //..''/ y-i/- .McDon.dd. .1., though the de<'isiori 
 
 Fruurr iV Ji'// \ . '/"ini of Am- fi/n.si/'nr, 
 
 I. i:. .V <;., -..Viti. 
 
 S' < , f(A<o, siijiiii , '., I . 
 
 \-. OF l;.\l^w.\^ s. 
 1. Kiillway I'rovinclal Kxcniption from 
 
 :ird Ri;v. Stats., c. 45, h. IG; <:f'. TAh Rev. 
 dill nol pKieecd upon that ground, that defend- J^tatH. c. 58, ». 5 -The Windsor- it Arinapnlis 
 arris wer'i; at iiliei'ly to insist, a.s a good defenci;, [{..^il^ay is a, l'ro\incia,l {Railway within llit 
 upon the faci that the necessary irotices of ,,,|.,t,|j||j_, ,,f chapter 15, l!c\ised .'Statutes !.')i'l 
 ineetings for the appoini merit of appraLMMs, i\:c., ^,.,.i,.^)_ i'()f County As.sessrrrerits," .sei:. Hi, aii.l 
 liad not Im'Cii legally given to <ill the proprietors j^, ,,x,.,|ipt from assessment iindi'r tin: Act. 
 of the inner dyke. ' 'I'li,, ^i.,,,, ^,.^y „f ,.xe),ipii.,n depends upon tin.' 
 
 Wichmn: el iil. v. (jimlil <l. nl., .S |{. & ( '., ItW. f.^,.,^ whether the road is or' is not a portion of 
 
 the l'io\incial liailuay, 
 l\- l\ NKW (M.A.SCOW. TheCounfi/ofAniinpoliswT/K-Wiiif/formid 
 
 Ainifip.'j/ls Jldiiiraii Co., '1 X. S. D., •'(!•(. 
 
 1. New lilasj^ow \o power to establisli 
 
 Court of Appeal and Riivisioii Stock of com- 2. IkallHJiy damages 'iOVIC, (■•!•' ^« **• 
 
 panicH not doinj,' huHJncHH in the town held fry Jury aHH(;.Hning on wrong principle Vriidict 
 part'CH in the town 'i'he act incorporating the Het -wide Where a party having a parol license 
 Town of New (ilasgow empowered I lr<! I'oipnia- to cut trees, appealed froirr the appraiferiielit 
 lion to vote, hbhchh, collect, receive, appro|iiiate, , made under tire Act, 'JO Vict., (;ap. I.'l, toaiulmi'- 
 aiid pay the inoneyH reijuirod for poor ralcH and | vm a,HHenHnrenlH for railway danrages, aird a jiii> 
 
i;j3 assessment. \u 
 
 (111 lliiit ;i|)|)i:.il iiMSi-.HMcil (l^uiiiit.'1's on a NMoii^' f-if t lii' i-,\[ii(i|)ii;ii inij ol hiijil fuMlic li^^'hl of wav 
 
 |,|ll|ri|,|l-. t'li- (III- line. 
 
 //'W, ih.il the Coiiit, woiilil ;>i'l :i.--iili' I lic- \ I'r- Oiillic ,-aini' dale, •■. 71 dlllii' Adh ol I sTd, 
 
 <l|rl (ill I III' ^.'IhiukI of cxcc^.sivc i|aijiaj;c.i Ijavjiij,' was |),i.s.-,r7l, iiijil, in onlcr ta ii)c()r|)iir:il i- iiiiil 
 
 liiM-ii >,'ivcn. nis>; any i-oni rartoi.s wIjo.mi- Irndi'r' for consif lu;- 
 
 I'l III il ji \ . Till Cihi iif lliilifiij-, •2'\'\iii\u., 1 )•_'. lion slioiili! t.ljcrcaflci' ln' iiicc|)|(.(l iIk; sanii: 
 
 '■oi |ioi:ili- pouii.-, iinil )iii\ ilij.'is as IIiom- nii'ii- 
 
 !{. liailna.V(laiiiaK<'s Costs ofn'-aiipraisi!- nonci ii, ,.. 71, ,-, \ ,,\ \\n- a.i,, ,,f i.s7(i uan 
 
 ini'llf ot'laiiii.s Act.H 1H7H. ':.ii.'i ( ■orririii.-.--ioiM'i - |)'i--i'il. 
 
 will- apiioinliil ini'lcr r. ,';."), Ad > of ]S's. to i c l!\ ^i'-. .'i'i of .■. 71, and -.A^n \,\ mi'. i; i,f i-. .'{ 
 
 ,i|>|irai.-i' liinili laUcn for railu:i\ |ini))o,-i- iij ot tin- Arl^ot I S7ti, iir Inin Miljon:-, of c 7I» of 
 
 |)i;.'l)\ ( 'oiiMl y, ai]i| jl ua,-, |)i i )\ irlii I liy l!i'' A' I 'ii'l U. >. , arit iniorpor a I cd in tlioc i ii^irl nicni.s 
 
 lli.il llii ic a|i)iiaisrnicnl , "loyitiicT willi llii^ anil maili- a|)|)|jralil(- lo llii.^ line <if i\iilw;ty, 
 
 (■n>i~ liiicliifoir inrnriid ' slionM In' a i-onnly ulili-li ^cilinns ujoii- |iarl irii|:iily relate to tin; 
 
 '■li.ilL'i'. Ilioile of ;ii'i|i,iii|i;; I. mil-, |i,r the ri;.'lit of uav, 
 
 ll'lil. Ilial the rost.s fof sei'vice.s liefori: I lie "la I ion- . el e. , I lie pjoi-eil iii c tof a |i|)i;' '>in'_' 'lani- 
 
 ( oiiiJiii-ionei - lor re :i|i|)iiii-^eiiienl eoiilil iiol lie aee-, ;,i|i| ||||. moile of .■is.'^e.ssin;.' the varion.4 
 
 ta \ei|, MS I lie All |ll o\ iileil iinl\ for I lio>e jliein lei I eoNnI ie- jur | |ie pay nuiil of I lie ;i MlOIUli - ll u i nliil. 
 
 |il lol til il- |ias.-in'_'. ('. 70o( ."jril {;. .S. e(iiii|)i i.~e.- in lOiiMilnlaleil 
 
 /// /r 111 -/'/■// ( 'iiiiiilit ^ Uniliiii fi. toini all eiiiiii piieiii.-, jn fiiiie in Nova Seotia at 
 
 ir jiiiili llnrilii, I \\. k (.,, I7l>. llial ilale, i ela t in(^ to |)io\ ilieial lajivvay.s. I'o!' 
 
 ' on\ euieiiie, t II" va liolis |ail\\;iy <'oiil|)a nii- in 
 
 J. Kail'.vay A<1s or .Nova Srolia Kai^ .Nova Si-oil;,, sialiah th.- WinilMir^iml Aiina|,i, lis 
 
 way. apiiraisemcnl, of lanil.s tor Ordi'r lo set llMiKvay ConipMiiy. ilie We.-tei n ( ounl ie- llail- 
 
 a.-:|i|e proceedintM K.sfoppel .Jtldmiient. not way ( ■onipany (.<(•(■.•.. 'SI, .\.|>i,f |Mi>S; e. SI, 
 
 I'ppealaljle 'Ilii. u as an applie.it ion lollieSii Ail- of IM70I, iia\ e. in oliliuniii- lliiir ,ii Is of 
 
 plinii( olll! ol .\ii\,i .S, iitia.iisklliL' it to.-el a.-ide, ii.ii ,ipi ,ia I inn , a\all(ii t liini-il viv- of siniilaf 
 
 HI a -iiiiiinaiy iiiannep, tlie u hole a ppi ,,i-eininl of .jaii.-i .-, fr.,ni .-. 7U i.t ;iiil |;. S., I.v expie- .-, enael - 
 
 laiid i|aiiia(i(-K ;iwa|iled to he iiaidhy the Coiinly inenl. wilhoiil i epe.il iii;.i ihem in ||ie.\,i op 
 
 III I iie .several pioprieloi,- of lands in I'iitoii piiAidiii;.' other liiai hiiieiy for the e\piopii,i,||oii 
 
 ( iiiilily, who.-,e I. mil, had lieeii i\ propriati-il tor i,l lands, and the ,a,-iei tainiii;; of land dain,i;res. 
 
 llie hue of railway exleniliri;,'troiii .\eu(ila.-~;^o\v, When Ihefth .series of the |{ev. .Slats. wa.s 
 
 II; I'irioii County, to the Strait of Can.so, and prepared, eertaiii Ails of Ih.. I'lovinee not re- 
 
 kiio'.Mi asthe Ivislern Msteiision. 'Ihis appiai,-e enaiited were eonliniied in fone, and animij,' 
 
 nil III wa- niaile on the assiiinpt ion lliat under t hem .-o niiii-h ofe. 70 of the .'jrd series as was 
 
 llie rolill.iel wilhlhe .\o\;i .Srolia l'ov el nnient I hei em ,-pei||ieil (x/-e t he .\il to piovjije foflJKi 
 
 fill the roust met ion of ihi.slineof railway, and piihliial ion of the Colisolidaled ,S|alii!e-, ;J0| Ji 
 
 the -laliites relalinj,' theieto, anil providin;; for .\pril, !.S7.'{, 1th !!. S., paj/e -J,, 
 
 the e\|,ii,priatioii of land- for rifilit of way, etr., Mr, Harry .\ hhot I , havinj.' enteieil into thiion- 
 
 appiai.-inieiil of damage's or compensation lo tract w itii the Koveiiinieiit lor t he coiislruet ion of 
 
 the pinprielois, and payment thereof, the rij,dil this line, sonj/ht ler e. | of I he Acts of 1 S7(;, in- 
 
 ot way was furnished to I he lonipany freehand eorporal ion and I he heiielit of I he provisions of !•. 
 
 Ill'- iiiliipen-ation for land daiiiat'cs was to In- 7 I of Acts of IS7r(, and ohtained a eeit itieate of 
 
 I''"' "'''I' appraisenient in the manner pie inrorporat ion under Ihe name of the lialifa.x 
 
 .'•iiiheil. hy 111,; ,;iistoH of the- varioii.s coiinlies and Cape lireton llaiKvayaiid Coal Cimp.my. 
 
 tliioiiL'h whicli the line ran, i.ssiiinj.' delicnt iir e.s The Coiii))iuiy \\ as orj,'aiii/i;(l under this Ad, 
 
 ''"' •'"' ■iiiioniits d 111' to the proprietors, which and t he ri;.'ht of w ay haviiig linen olitaiiied under 
 
 li'hilitiires were to he redei^nied hy means of I he statutes, t he dama^.'es were applaisiMl and the 
 
 Incal taxation. worU oi const riict ion he;.Mn ami was carried on. 
 
 Itehiii; the I'lovimial ( iovernineiil of .Nova liilS77 an ordi'r was made hy I he Chief .lii.s- 
 
 iSi.'otia had entered into the contract for Ihe I ice of I he Siipreine Court of Xo\a Scotia, on tliD 
 
 const ruit ion of th(! Kustern Ivxteiision iilU', and pelilion of a niimlier of the iiropetty owners 
 
 wlnleilie^ w,i|(^ iiej,'otialinj' iherefor, the .Nova wlios,; lands would Ihi all'<ji;t(j<l l.y the Imihlint,' 
 
 Scotia, l,e^;isiatuic-. on lln^ Itli April, lM7<i, of t hc^ railway, direct in^,' the prolhonotiiry of t hi; 
 
 ImnHcil c. ;; ..f n,,. \,.^^ ,.)■ \^-^■^ ,,, ,.||;||,|,. n,,. County to draw and Ktrikiia jury, under the pro- 
 
 g'lviMiiiiii.iit to enter liilo ,1 (■onlract for Ihe con- \ JHion.s of c 7't of .'ird I!. ,S., to appraise the; 
 
 Nlriictiiiii of thi.s line of railway, ami ii.ad<; iaiul ami properly taken for the pui|iofie of tlio 
 
 I'lovisii,!, ih,,|.,,|,y f,„. the payment of II sulisidy Kastern Kxtension liailway. 
 
 "■lalj-'iaiits of land to those undertaking it, and In |S7H a rule iiIm was lakfli lo set ii.-ide llio 
 
135 
 
 ASSESSMENT. 
 
 136 
 
 wiidln i)i'<)i;ec'(liiigs, Imt a year later it was dis- 
 cliai'i,'oil on iiKitioM iif the jiaily \\ lio liail (ililaiiicd 
 it. 
 
 A ijiu'sticiii liaviu^' ln't'ii faiscil as to llic 
 valiilily iif tlio iinorpnialidii of lliu Coiiiiiaiiy 
 uiiiKr c. 4 of llie Ai-ts of 1S7(I, liy the Lmal 
 ( iovelMiiiclit, and lcL;i>lal ion lifiiii; alioiit to lie 
 pa.ssc'il to fi'inovi; siifh iloulits, anotlicf fide was 
 oKtaiiicd in lS7!t, on tiio yiiniiid that tiic Hali- 
 fax and Cajii' I'.rvlon Flailway and ('(jal ( 'oinpany 
 liad no ieiial existiMice. Aftff the ai;i.'iniiciil of 
 this I'tile. and liuforu judgment, eliapteis (i(i and 
 70 of the Acts of 1S7!) were jiassed liy tlie f^egis- 
 lattlfe of N'ova Seotia. After iieariiig theetislos 
 of the Couuty liy counsel liefore a eoniinillee of 
 the Legisiatiife, two sections of the ^\.et weie 
 added in the inteiest of the Coiiiity. 
 
 The Sujneme Couil of N. S. , held, tlial the 
 
 County of I'ictou was estopjied liy tiiese statutes 
 
 last mentioned from dis|iuting the a()])raiseinent 
 
 of the lands taken, ami liy the issue of delienltires 
 
 by the t'onnty to parlies to whom damages had 
 
 been awariled for the lands ap])ropriated to the 
 
 railway, some of whiidi had liei'n indorsed to 
 
 third i)arties. 
 
 Inn I'iv/oii J^fii/irai/ -Dtniiiii/cs, I It. I'v: < i.. US. 
 
 Oil (i/i/i'(t/ to till Sii/iriiiii Court vj Cuiiuilii, 
 
 IIl/iI, that the judgment of the Court lielow 
 
 was not one from which an ajipeiil woidd lie, 
 
 there lieing no linality alioul the order made liy 
 
 the Chief Justice of the Court below in IS77, 
 
 which was what this appeal sought to set aside. 
 
 Hockiii y. llidifdj and (ape Jircfoii liadwaij 
 
 and Coal Cunipan;/, .'■''/// Oifoher. IS'Sd, 
 
 Cas. Digest, •24-2. 
 
 5. IJailway damages -3r(l Rev. Stats., 
 
 c. 70, ss. 44-59— Objections to assessment — 
 Q'he Act incorporating the comiiany for the ei.in- 
 .slruction of the Xictaux and Atlantic Railway 
 provided that the laml recjuired for the road, 
 &(.:., shotild lie furnished gratis to the coui])any, 
 ■who were aiithoii/ed to exercise all the powers 
 necessary for locating and completing the rail- 
 May ; and the company was empowered to build 
 the road " under the powers, authorities and 
 p"o\isions of this Act," (the Act of Incorpora- 
 tion) "and also of chapter 70, R. S., 3rd series, 
 of Rroviiicial (iovernment Railways, so far as 
 the same shall he ajjplicalile to such railway." 
 
 Held, that although sections 44 to 50 of chap, 
 70, providing for appraisement of the lands 
 taken, and assessment of the county, were not 
 expiessly eniboilied in the Act of Incorporation, 
 they were available for the purpose of making 
 the appraisement and assessment. 
 
 Held, further, that the objection, that the 
 application for a jury \\as made to, and the 
 
 order granted by, the Court on Circuit inslead 
 of a Judge of the Court, and the olijectiou that 
 the renin' was n<it tiled within thirty ilays, were 
 obviated by section 5'J of cha|)ter 70, ])roviding 
 that l)roceedings should not lie set aside upon 
 any mere technicalit_N . 
 
 Ill Id. fnrtliir. X\\-A\ the olijcction, that ))lans 
 anil specilications were not on lile as rei(iiired 
 by st'ctiini 47 of chapter 70, wliei; the order 
 passeil. even if it c<iidd lie raised by tln' parties 
 whose lauds had lieen seized, could not lie taken 
 by the eoimty authorities at whose instance 
 pr<iceedings hid been taken, and that the same 
 principle a]i])lieil to the eonleution that the Act 
 contemplated <inly one a])praisement , and that 
 all the plans ami specilications for the whole 
 line must be tiled belore the order. 
 
 In re yicliiiij and A/liiidic liail irnj/, 
 
 •2 R. >S: (;.', •-'5-_'; 
 1 C. L. T., 707. 
 
 ^'I. rOR SCHOOL RATES. 
 
 1. Sc'luiol Act 18«5, 0. -28, \. S.-The 
 Court held thai "all future assessment^.," in 
 sec. 8 of Acts iiS(i5, c. •_'«, N. S., retVrred to 
 assessments made <ifl(r the assessments conteiu- 
 ]ilateil in sec. 7 <if same Act. 
 
 /)( re Pinco vt ai, 2 (./Id., 17S. 
 
 2. School— Appeal t«» Sessions -Poner of 
 
 Sessions to set aside assessment -Where the 
 ; groumls of an ajipcal from an assessment for 
 scluMil rales are simply matters of detail the ap- 
 peal should lie ]irimarily to the Court of Ses- 
 I sions and not to the Supreme Court. 
 ' The Court of Sessions has power to set aside 
 I whole as.sessment where it manifestly appears 
 that it has been irregularly and therefore ille- 
 gally made. 
 
 In ro A.fsfgsniciit •'-ic/iool Jtato, 
 
 I iScctiun ,'/•'■> An/ii/onis/i, ',il\. S. 1)., I"-'-. 
 
 I 3. Scliool- Construction ttli Kev. Stats., 
 
 ' C. 32 — M., Son & Co. carried on business in the 
 
 City of Halifax, and also at Redford, in the 
 
 County of Halifax, owning and occupying pro- 
 
 , perty liable to assessment for school ])urposes in 
 
 i both places. The members of the lirm resided 
 
 I in the City of Halifax. I'revious to llie asso.ss- 
 
 imentof bSS'i the hrm made an assignment for 
 
 the general benefit of their creditors t<i plaintiff 
 
 who was carrying cm bnsincss at Bedford uiuler 
 
 the tirm name at the time of tlie'assessmput, but 
 
 also resided in Halifax. A portion of the ))ro- 
 
 perty at ISodford assigned to plaintitl having 
 
 j been levied upon for rates claimed to be due for 
 
 ! the snpport of schools in that section, 
 
137 
 
 ASSESSMENT. 
 
 138 
 
 Ilvhl. \Vi-:itlicHif, J., iHiMiilhui, tli.U iiftfT 
 the iis.sii.'iinH'iit, uiiik-f lii'viwcMl StiUulL's (4tli 
 series), rhiiptfr ."i'i, sictions .■)4 iiiid M, the pro- I 
 pei'ty lev ied iii)im was lialik' tn assessiiieiil in ihe 
 section in «liieii the (H'l^'iiiul nuiiers hisl lesideil. 
 (Iralidm v. Monaijhnn, .") R. \; (i., ISO. 
 
 4. School - Liability of nartmoiitli for 
 
 school rate — 4th Rev. Stats., c. 32, ,s. 52; of. 
 5th Rev. Stats., c. 29, s. 43 —Act incorporating 
 Town of Dartmouth— 1873, e. 17, r.s. 27 & 28, 1 
 N. S. — The Alt ine()i|)iiialiny the Town of 
 ]_)urtinoiilh |)|-oviileiI that the Town Council 
 shcmlil iia\e jini.'iilielioii over the .-in|)|)ort and 
 regulation of the |nil)lic schools, regulating the , 
 assessments and eiilleeling the assessments, and . 
 that they should vote, assess, eolleet, receive, 
 appropriate and |)ay whatever moneys were 
 rei|iiired for county assessments, poor, school, 
 and other rates and assessments, and should 
 have within the town all the ])owers relating 
 thereto vesteil in theSe.ssions,(irand,liiry, Sehoid 
 Meeting and Town Meeting. I'.y another section 
 it was enacted that, after tiie ])assing of the 
 Act, the town shonhl lie set olf into a sc])arate 
 scliool section, and shoidd have the ex])endilure ; 
 of all rates raised within its limits for the i 
 Schools of the town, as also of all government | 
 and school grants for .such schools, w liich grants 
 should he paid to the town. 
 
 HM, that notwithstanding these enactments, 
 the Town Council was lionnd to assess and pay 
 overdo iheCoiuUy Treasurer its ratalilc jn-opor- 
 tion of I he assessment of thirty cents |)cr liead, 
 prc)vi(leil for liy 4th l!ev. Stats, c. \\1, s. ."rJ. | 
 
 In vv Diirtnwntli Sr/iool Axrii'ssiiiPti/, 
 
 ■A R. X- ('., 147. 
 
 ."i. ScliDol -M.UHlainiis Kli Kcv. Stats., 
 
 C. 32, s. 52 -.\ Hill 11(1(1 iiiHx was applied for at j 
 the Instance of the .Sessions for the Cotmty of 
 Halifav. to compel the Warden and Council nf 
 the Town of Dartmouth to assess, oji the 
 property of the town lialile for assessment, the 
 sum of .'~il.">.!l7() for its proportion of county 
 soh-)ol lales for the years |S7.'i 7S. nndei' section 
 r>'2 of 4tii Itev. Stats., c. ."{-J. 
 
 Hclil, that the Wardc^n iind Town Council 
 iiilgjit to have assessed in eac-h ye.ar for the pro- 
 l"irtion of the county school assessnient payalile j 
 liy lli(aouii, liul that in view of the, \ct to amen:! | 
 tile .\cl Id ineor|)orate the town (.Vets. IS77. ' 
 e. 40). section .S(» of which provided that the' 
 Sinn to he voted at tiie annual meeting of thi' 
 town liir the estimates, inchaling ordinary and j 
 extraordinary exi)enses, should not exceed in ! 
 «»y year the sum of S|,"),(MKI, there was a dilli- 
 
 culty in the cay i f issuing the mnnihiiunx, as 
 asked for. 
 
 Qanere, whether there should have lieen a 
 relator. 
 
 Per .lames, ,T.— The City of Halifax is not 
 exeinj)ted liy chapter 32, 4th Rev. Stats., from 
 eoutrilintion to the eountj' school rates, hut is 
 e(iually liahle with the Town of Dartmouth. 
 
 The Supreme Court of Xova Scotia, without 
 determining whether tlie re([uire(i assessment 
 was possil)lc, and was ohiigatory when the writ 
 was issued, made the rule tiisi for a mmuhtmus 
 ahsolute, leaving these (|Ueslions to lie deter- 
 mineil on the ii'tnrn of the writ. 
 
 (itii'i'ii V. I'own Cunniil of Dintmnntli, 
 
 I R. & (;., 4(12. 
 
 On ii/>/)t''ii to till' Supreme Court of Cunniln, 
 
 //e/(l, Strong and (iwyiuie, ,JJ., dmenting, 
 that the granting of the writ in this case was in 
 the disc'etion of the court below, and the exer- 
 cise of tliat discretion cannot at present be 
 (juestioned. 
 
 Pi-r Ritchie, C. .1.— That the Town of Dart- 
 mouth is not, hut that the City of Halifax is, 
 exempted hy 4th Rev. .Stat., c. 32, from contri- 
 luitiou to the countj' sciiool lates. 
 
 (juven V. If'ari/i'ii and Couiii'ii of the Toirn 
 of DartiiioHtli, !) S. C. R., ,")()!). 
 
 C. Scliool - Miinici|iality of County of 
 
 Halifax -Liability of Town of Dartmouth for 
 school rates to Municipality— Assessing pre- 
 sent rate-payers for rates of previous years — 
 IIil'l, Ritihie, C. .]., (lisseiitini/, that the Town 
 of Dartmouth is not liable to contribute to the 
 assessment for the support of schools in the 
 .Nriniici]iality of the County of Halifax. 
 
 Ill III, iilii).. that if so liable, a writ of iiidiiiliniius 
 loulil not issue to enforce the payment of such 
 contribution, as the amount of the same would 
 be uncertain and ilillicidt to be ascertained. 
 
 /fi'lil, iil.<ii, {hi\l the ra,te-))ayers of ISSti emdd 
 not beassesseil for school rates leviable in ])revi- 
 nus years. 
 
 //r/il. jwr Ritchie. C. .1., iliMciiliiKj that only 
 the City of Halif.ix is exenipl from such contri- 
 liulion, and that the Town of DiMmoiuh is 
 liable. 
 
 'I'Ik \\''ir(l(ii 1111(1 ('(iiiiicil (),'' tli( 'I'liirn of 
 liiniiiKiiith v. 77e V"'"- "" '^'' ri/dtion 
 
 (i/llli M Kllici/ill/ill/ (if till ('(iKIlfl/ llf llllli- 
 
 /(I.C. ( Xdl ,■( 1,1, 1-1,(1 l„l(,ir), 14 S. ( ■. R., 
 4.">. 
 
 [N'oTK. 'I'his case was throe times licfore the 
 .'^upremc ( ourt of ('anaila. 
 
 1st. I )n appeal from the decision of the Su- 
 preme Court of Vova Scotia reported, 1 R. & ti., 
 402. .\ppeal leported, !» .S C. R.,."iO;). 
 
139 
 
 ASSESSMENT. 
 
 140 
 
 2iiil, On rtii))oal fniin dccisioii reported, i) R. 
 & (1., .Sll. Not reported on appeal, where it 
 was /(( A/, tliat tlie preliminary olijeetion that a 
 dennurer would not lie to the return to a man- 
 damtismnst he overruled, and it was deeided that 
 the ease must he heard on the merits. 
 
 3rd. Two appeals, heaid togetiier, fiom de- 
 cisioiLM not reiiortiil lielow. Ap])eals reported 
 14 S. C. R., 45.] 
 
 I. School -Powers of Trustees to call 
 
 special meeting— Seot ion .'14, suh-seition S, of 
 the cliapterof I'uhlie [nslruetion, 4th K. .S..ca]). 
 .S'J, i)rovided tiial it siioidd he the duty of the 
 trustees to call a special meeting; of the sec- 
 tion, due notice heing ).'iven l>y the school or 
 r)therwisi', for tlie jiurpose of, iS;c., and for any 
 other necessary |)urj)ose. .Section 'A~ rccjuircd the 
 trustees, upon tiie rei|uisitioii of a majority of 
 the ratcjiayeis, to convene a special meeting of 
 the ratepayers for the ])urpose of voting money 
 or adding to any amount previously voteil. At 
 tile annual meeting of .Scliool .Section "Jll tlic 
 money rc(|Uiic<l foi- scliools was not voted, and 
 the meeting instructed tlie trustees to call 
 another meeting for tlie purjiose, wiiich tliey 
 (lid, hut acted umler the iinpres.sion tliat tlie 
 meeting must he called under a re(iuisitinn. as 
 provided hy sec. '.i~. The matter was l)ronglit 
 up hy cirtiorari, and a rule iiini taken to set 
 aside the assessment, the attidavits on liotli 
 sides heing drawn on the assum|)tion tiial tlic 
 meeting could only be calle<l under section '.i', 
 retiuiring a requisition from a majority of rate- 
 payci's. 
 
 Jfi/fl. that no such iei(uisition was necessary, 
 that the trustees could call the meeting of their 
 own motion, and that, wiiether the reipiisitioii 
 was signed hy a majority of ratepayers or not, 
 the action of tlie meeting was legal and valid. 
 //( /•< Sfhoo/ Sif/ioii, Xo. ,.'.'', :i R. & ('., 'iOT. 
 
 VII. OF SHIl'l'IXc. 
 1. 8lil|)|)in;i;~A|)|)eal to loiintj ( oiirt from 
 
 Municipal Council -Power of County Court on 
 appeal as to different items of assessment than 
 those appealed from — By the Revised .Statutes 
 (4tli Series, IS74), an ajuieal finni an assessment 
 was given to the Court of Scssimis. In I.S7() it 
 was enacted that any jiarty aggrieved hy tlie 
 deeision of the .Sessions <()iild apjieal to the 
 County or Supreme Court. In ls7!t the powers 
 and authorities of tiie .Sessions were " given to 
 the Municipal Councils." 
 
 //elil. that the power given to the Councils to 
 hoar appeals from the assessment under this 
 
 statute was suhjeet to the condition that an 
 appeal should lie to the County Court in the 
 same manner as fornieily from a decision of the 
 .Sessions. The appellant ajipealed to the County 
 Court against an assessment of .*>ri(KK>, on "ships 
 in other districts" which had heen hiiilt hut not 
 registered in tin: County in which they were 
 assessed, and tlie County Court tludge, on the au- 
 thority of Keinii/ V. Tin City of Halifax, deeided 
 that they were not liable, but as it was shown 
 on the trial of the ajuieal that the apiiellant had 
 a ship on the st;)cks )iartially built, he amended 
 till' assessment to cover half the vahie of tlie 
 said ships. 
 
 llilil, tiiat the judge was correct in his judg- 
 ment as to the non-liability for slii])ping out of 
 the county, but that he could not on the trial of 
 that ajijieal consider a ditl'erent item of assess- 
 ment, not submitteil to the Court at all, as to 
 the ship on tiie stocks, and the appeal must 
 tlierefoi-e be allowed. 
 
 In rv Aiti^isi^iitvitl ofJamps Cruivi\'^ 1!. ki'i.. 'M)\ ; 
 
 •_'C. L. T., (ioii. 
 
 2. City of Halifax Vessels not registered 
 
 there Owner residing there Not assessable 
 for city r.ates — Halifax City Charter of 1864 
 -37 Vic, c. 30, sec. 1, and 27 Vic, c 81, ss. 
 340, 34.7, and 361 N. S. - K. resided and .lid 
 business in the City of Halifax, and owned ships 
 w iiicli were not icgistered at theCity of Halifax, 
 and wliicii had never visited the port of Halifax. 
 Under tlie authority of ,S7 Vic, c .'{(), sec. 1, and 
 •27 Vic, c. SI, sees. .'UO, ;U7, .SOI, the asse.-^sois 
 of the City of Halifax valued the ])roperty oi 
 K., and included therein thi' value of said vessels. 
 
 Ciidcr the laws in force in relation to tlieCity 
 of Halifax, I)ecenil)er 1S77, //'/'/, that vessels, 
 the owner wlicreo' resided and did business in 
 the city, but whicii were not registered in Hali- 
 fax, and had nevei' been in the port of Halifax, 
 were not asses.sablc for city rates. 
 
 Kiiiuy V. Thf Citij of Halifax, 1 R. \- C. I!'.). 
 
 0)1 a/>/ii(i/ Id thi Sii/in mi- Coiirf of Cainiiln. 
 
 Held, that vessels owned hy a resident, hut 
 never registered at Halifax, and always sailing 
 abroail. did not come within the meaning of tiie 
 words, " whether such shijw or ves.sels he at 
 home or abroad at the time of assessment,'' and 
 therefore were not liable to be assessed for city 
 taxes. 
 
 Till ('ill/ of Halifax v. Kniiiij, >S S. C. K., 107. 
 
 3. Shipping -Ship registered at llalifav 
 
 -—Owned in Guysboro' County —Absent at time 
 of assessment — Not assessable in Giiyshoro' 
 — Iff III, that a vessel registered in the ])"rt of 
 Halifax, and owned by a trader resident at Isaac s 
 
141 
 
 ASSIGNMENT. 
 
 142 
 
 Harlior, and not at tlic time of the aHses.s- 
 iiifiit in tiie District of Isaac's Harbor, or the 
 County of duysboro', was nf)t assessable in the 
 District of Isaac's Harbor for county rates. 
 James, J. , (lisseutiiii/. 
 
 Li re Ejfie Stveet, 3 R. & O., 3S0 ; 
 3 C. L. T., 44. 
 
 VIII. REMEDY WHEN RELATIVELY 
 TOO HIlJH. 
 
 1. Too high relatively— Proper remedy- 
 Town of Windsor — Rule to quash an asHes.s- 
 nieul of defendant's i)roi)erty discliury;ed witli 
 costs, where defendant appealed against his 
 assessment and showed that it was excessive, 
 relatively, to certain otliers named. The proper 
 remedy in sueli ease, under the by-laws of the 
 Town of Windsor, is to apjjcal against the other 
 assessments as too low. 
 Wujifiiis y. Till Tod'ii (;/■ ir//;(/.<o;',3 K. & (;., •J.')(). 
 
 ASSIGNMENT. 
 
 L FOR IJEXEFIT OF CREDITORS, 141. 
 
 II. OF ClIOSES IX ACTION, 14S. 
 
 HI. UXDI'Ui IXSOIA'KXT ACTS, l.-.O. 
 sm. rr/o, IXSOLVEXT ACTS, 1S«9 and lSi5. 
 
 IV. fi;aui)L'lext. i,m. 
 
 V. MISCKLLAXKOUS. 1,->S. 
 
 su, aho, BILLS OF SALE -DEED. 
 
 I. i'OR BENEFIT OF CREDITORS. 
 1. Assignments and bills of sale — Kc- 
 
 quirements as to tiling and aflidavit.s- Con- 
 struction of Acts of 1883, c. 11, a. 1 ; cf. oth 
 B, S., c. !I2, s. 4-W. Met;., O. .Mc(i., and X. L,, 
 of Yarmouth, traders, by deeds of assignment 
 (.v., 11. it <,'.), assigned to plaintitl all tiieii- real 
 ami personal estate in trust for creditors. Tiie 
 assignment A. was made f(U' the general benefit 
 of creditors, and tlie assigmneiits R. and C". for 
 the heneHt of certain preferred ci editors, the 
 residue only, if any. being assigned for the 
 hcnefit of creditors generally. Rearing even 
 (uite with tlie assignments, tiie assignors exe- 
 ctited i-cparate bills of sale of their respective 
 
 I personal property (I)., E. ami F. ) to the plain- 
 ■ tiff, subject to the trusLs contained in the deeds of 
 ; assignment. N^eitlierof the deeds of assignment 
 were tiled with tlie Registrar of Deeds at Yar- 
 mouth ; tlie bills of sale were filed, but were 
 ' not accompanied witli affidavits under the Act of 
 I 1HS3, c. 11, s. 1 (R. S. mil series, c. 0'_>, s. 4.) 
 I Defendant, us Siieriif of the County of Yar- 
 mouth, levied on the property included in the 
 I bills of sale and assignments under executions 
 placed in his hands by judgment creditors. 
 
 //e/rf, alijrmingtlie judgment of Thompson, J., 
 Weatlierbe, J., dissent iti<j, that the assignments 
 referred to in the l)ills of sale E. and F., setting 
 out the considerations and trusts on which they 
 were made not being of the character of defeas- 
 ances, and it sullicientlj' appearing that no 
 interest remained in tlie grantors, and tiiat tiie 
 sales ami assignments were made for the beiielit 
 f)f creditors, such assignments were not reijuired 
 to be hied as jiart of the instrument of transfer. 
 /'i /• 'I'iionipson, J., ill tlie judgment ailiniied : 
 (1.) That neitiier tiie bills of sale nor assign- 
 ments re(juired to be accompanied Mitii the atli- 
 davit provided for in A<ts of ISS3, c. II, s. 1, 
 that enactment only ajiplying to bills of sale for 
 securing debt.s or advances. 
 
 ("2.) Tliat the assignment A. did not re(|uire 
 to be filed, as it was an assignment for tlie gen- 
 eral benefit of cre<litors. Tiie assigmneiits H. 
 and C. were liable to be defeated by execution 
 crcilitors, for want of tiling. 
 
 (3.) That tlie assignments R. and C. not 
 being in the nature of <lefeasances, wliicli are 
 reipiired to be tiled, and the bills of sale !'',. and 
 F. being ab.solute conveyances, and fully cqiress- 
 iiig all tliat was material to tlieir cliaracter as 
 such, the provisions of the Act in reference to 
 tiling were sulistautially complied witli, and the 
 Slieritf was not justified in levying upon or sell- 
 ing any |)art of the ])ropeity included in the 
 assignment A. or the liills of sale E. and F. 
 
 (4.) 'i'lie assigumeiit .-\. was good without 
 tiling, and D. was only auxiliary to A. 
 
 Dnrku V. Flint, 7 R. it (i.. 4S7 ; 
 8 C. L. T., 19. 
 
 2. Assignee of debtor for beneiit certain 
 
 creditors Assents to debtor's instructions to 
 pay certain other creditors as well — Where 
 such payments will exliaust whole fund in 
 assignee's hands, the assignee has nothing 
 which can be attached A cieditoi' to wliom 
 an absent debtor liail assigned all his goods, in 
 trust for the benefit of certain creditors, re- 
 ceived 11 letter from the debtor directing pay- 
 ment of surplus proceeds to certain other cred- 
 itors. Assignee expressed liis willingness to 
 comply willi such directions. 
 
143 
 
 ASSIGNMENT. 
 
 144 
 
 Hi'ld, tint iiol liiiviiii,' autficient to jiuy the 
 partius muiitioiiuil in tlio letter, there was noth- 
 ing thill coiilil lie Hltiiolied in the hiinds of the 
 assignee iis agent. 
 
 Mit-Jir V. Jliinit', I Thoni., (l.st eil), .'W ; 
 
 (•2n.l eil.), G4. 
 
 8. Coiiipositioii (Iced Acceptance of 
 
 composition Efl'cct of- -Defendants were the 
 makers of two promissory notes to A. & Co., 
 ■which the latter inilnrs<Ml to tiie Halifax Iliink- 
 ing ('oni])any. liifore the notes lieeame ilne, 
 both tlefenilaiits ami A. & Co. lieuanie insolvent, 
 A composition deed was exeeiiteil between ilc- 
 fendantsand their ereclitois, by wiiieh the latter 
 agreed to receive eight shillings and ninepenee 
 in the pound, in full of their respective debts. 
 This ih.'ed was not executed l)y the II. IJ. Co., 
 but the ('om))any took new notes from the de- 
 fendants, endiraciiig at this ratio all their claims 
 against the defendants, on jiiomissory notes, 
 including tlie two notes in (piestion, and gave 
 the following receipt : " Halifax lianking Co.'s 
 Office, Halifax, '-Mth April. 1 S.W. — Received 
 from Messi's. Salter ,*v' Twining the sum of one 
 hundred and twenty-two pounils ten shillings, 
 currency, being the conipo.sition of eight shil- 
 lings and nini'|)ence in the pound, on tiieir two 
 notes of hand, in favor of Messr-s. Allison & Co., 
 amotniting to f'JSt), and discounted by Messrs. 
 Allison fc Co. at this baidv, the notus being 
 retained for the purpose of receiving a divi- 
 dend fidui the estate of Allison & Co. — X. T. 
 Hil.l,, Cashiir." 
 
 The cashier of the H. 1*.. Co. stated, "that 
 the notes were left in the ban!; by defendants, 
 of their own accord; that had the notes lieen 
 required by the defendants, they would have 
 been delivered to them, the bank considering 
 the defendants wholly dischaiged of any further 
 claim on them on aecomit of these notes." He 
 also stated that there was no reservation. It 
 appeai'cil, howe\'er, that one of tiii' dcft'ndanls, 
 at liie time the notes were so left, said : "The 
 bank is fully entitled to I'cceive tiie whole 
 amount of the notc>, and xiitli tliat considera- 
 liou 1 leave them with you tor the i)Ur])ose of 
 recovering from Messrs. Allison (A. i\: Co.) the 
 dill'ercni'e from their assets."' 
 
 The H. 1). Co. subse,|uently obtained ten 
 shillings in tiie pound on tiu'faceof the notes 
 from the estate of A. & Co. (neither A. v^ Co., 
 nor their assignees, it would a])pear, being 
 aware, at the time, of the transaction between 
 defendants and the bank), and the action was 
 brought by the assignees of A. & ('o. to recover 
 from defendants the balance due on the face of 
 the notes after crediting the i'l'Jli 10s. 
 
 IIoliI, pov Voung, (!. J., Desl'iarres and Wil- 
 kins, JJ. (Bliss and Dodd, dj., r/Mse/(^//(//), that 
 the H. IJ. Co. had absolutely discharged the 
 defendants from all liability on account of the 
 notes, and that the action could not be niain- 
 taint'd. 
 
 I'er Wilkins, J. — That by the accej)tance of 
 
 the composition, the H. 15. Co. became virtually 
 
 Jiarties to the coni[)osition deed, and bound by 
 
 all its terms. 
 
 Linmon et. nl. v. Sallirr it ill., 1 Old., 70 i*l: T.'U. 
 
 4. Creditor allowed to come in after time 
 
 limited in deed-^-A debtor, on the •J'Jnd Marcii, 
 bSli-l, made a deed of assignment in favor of all 
 his creditors who should execute the deed within 
 three months. Notice thereof was jjublished in 
 the "Royal (iazette," at Halifax, to the eti'ect 
 that all creditors wishing to participate in the 
 as.sets of the estate should execute the deed 
 within ■'ic three months. All the crcditor.s, 
 excepi tin plaintiff, did execute it within that 
 time. Th • i)laintitf took a note from the debter 
 on the '2nd June, l.Sti4, for the amount of his 
 claim. The ))arties benelicially interesteil, who 
 were represented by the i)laintill', resided in 
 Knglanil, though the plaintiff himself resided in 
 Halifax, and they had no notice of the a.ssign- 
 meiit until the three months had nearly expired, 
 and as soon as possible thereafter they gave tlie 
 jdaintiff authority to conu: into the assignment 
 and execute the deed, but the assignees and tlic 
 othci' creditors refused to allow him to do so. 
 The thi'ee months had then expireil, but there 
 had been no distribution of the ])roceeds of the 
 estate. 
 
 IIilil, under the s])ecial circumstances, tlieie 
 having been no lU'gligonce on the pai't of the 
 ))lainlitf or the parties whom he rciiresenteil, 
 and no ilividend having been paid, that, in 
 e(|uity, tlie plaintiff was not precluded from 
 coming in and sharing with the other creditors 
 in the distribution of the estate, and that lie 
 should be allowed to execute the lU'cd. 
 
 Halihuitoii v. Dcllolfc ct nl., •_' Old., ;!sl ; 
 
 1 X. S. I)., VI. 
 
 5. For beiieRt of creditors Filing - 
 
 Delivery at Registrar's house — Neglect to 
 index and mark - Effect thereof - Removal 
 from ottice - Attachment of goods during such 
 removal -Replevin against Sherifl'-.\n assign- 
 ment \\as made to ))laintitf for tiie beiiclit of 
 creditors, which the assignee, having tiken 
 ivisscssion of the estate and effects, delivered to 
 the Registrar of Deeds at his house, at .S A. M., 
 with instructions to record it as a deed, ami file 
 it as a bill of sale. The Registrar ilid not imirk 
 
Uo ASSIGNMENT. UG 
 
 it "lili'il," or lilo it :i« ii 'lill of s.'ilc, ov iiuinlicr, iiiuiit of all his |)iii|KM'ty, real ami pcrsinial, to 
 cntii, 111- imlcx it in the Ixiok ki'pt liy iiiin for tlie (k'foiiilaiit, lM)rsytli, in inisl for tln' iMiictil 
 t'Utry of liills of salt', Imt ii'coriliil it in till' usual of l)aviclsou's I'lciliiois, luid suili trust duotl 
 wiW as a df.t'd of liuul. It icniaiiR'cl in his was exccutcil liy Davidson, Korsyth, unci one of 
 (itli.f until Dt'ii'ndiof .">, when it was. witiiout Daviiisou's nuditors. and sulisuqiiently liy a 
 a! \ iustiiution.s from plaiutill, si'ut hy mail lo numluT of oiIrt i-I'imUiois. At the time of uxe- 
 tli« itsiilenee of the jilaiutiir, who was not then eution of this deed, Forsyth had no notice of 
 at liniiie, and who did not jjersoually learn that the mortgage to the |ilaintitls. h'orsylh took 
 the deed had lieeii returned until the (ith Janu- jjossession of the goods in the store, and refused 
 arv. On the !)th. January i)laintitf' returned the to deliver them to the pluintitl's, who demanded 
 i1i(m1 to tiie Registrar. In the interval, the them on Dee. 14tli., default having lieeii inado 
 vdiiils were seized tiinler an attachment issued in the jiayiiienH under the mortgage, and the 
 on the "-'"Jud Ueeendier. and an execution n|)on |ilaiutill> brought this suit foi- the recovery of 
 a juilu'inent ohtaiueil "Jud .lanuarv against the tlie goods and an aeeount. Previous to the 
 us.-iu'Hoi'. eomuu'neemeiit of the .suit, Foi'syth delivei'ed to 
 If'/i/, that the a.ssigument was of the I'lass the plaintitl's a small poi'tion of the goods in the 
 ri'(|uiring to he tilecl under ea]). S4, R. S., 4lh store, whieii, as he alleged, were all that re- 
 series, that the delivering of the instrument at inained from the stoek on tlu' iiremi.ses in May, 
 tlie i!egjstrar"s house, with iustrnetions to file, ISSO. 
 
 was sullleient ; that the removal of the deed //< A/, /» r Rigliy, Ji.nu'S and -McDonald, d.T., 
 
 from the olhce could not, under the ciri'um- W'ealherhe, J., (/iMiii/lm/, that the contract in 
 
 stances, he taken advantage of l>y an attaching regard to the aftei' ac()Uired goods was sk) uncer- 
 
 nr execution creditor, who knew of lis having tain, that the Court would not decree it.s specific 
 
 hcc:i ill the otHce ; and that rejilevin for the |ierforniance. 
 
 goods could lie maintained liy the assignee Per Weatherlie, .]. — An agreement not to 
 
 against the Sherill'. record a hill of sale is not a fraud. 
 
 /Vs-Z/ec V. lik/iop el. oL, '^ R. i^ C, ATA. MvAUtster et nl. v. Forsi/t/, el uL, ,'1 1!. & (i., l.")l. 
 
 «. For general benellt of l-rcdltors by 0,i nppenl to the Supreme fnurt of Cunmln, 
 chattel mortgagor — Chattel mortgage of after //eld, atiiMuiiig the judgment helow, .Strong, 
 acquired property — Agreement not to register .J., dis-'ieii/iiii/^Umi the legal title to the projierty 
 —Legal title of tru.stee in goods mortgaged— vested h\ the ilcfeiidants must juevail, the i)lain- 
 Equitable title of mortgagee — Priority.— In litis' title heing merely eijuitahle, and the eijui- 
 May, ISSd, the defcudaut, Davidson, heing in- tics lietweeii tlie parties heing ei|Ual. 
 (Iclitcd to the plaiiititis in the sum of 8S,(lfM», I'er llitchie, C .). — While the arrangement 
 gave ihciii a chattel mortgage on all his stock in not to register the deed, and keeping the same 
 Uailc, clialtels and ell'eets then being in the store secret, thereby enabling Davidson to obtain 
 iif said defendant Davidson on ( iianville Street, ci'edit as the ostensible owner of the stock in 
 ill the i.ily of Halifax ; and by the said mortgage the ordinary coiirsi' of business, and with the 
 the said defendant further agreed to convey to stipulat ion that he should comcy all goods sub- 
 tile plaintitt's all stock which during the con- sc(|Ueiitly jiiirchaseil on the strength of such 
 tiiuiaiiLC of the said indebtedness he might credit to the )ilaiiititl's, was a transaction, to say 
 liiucliase for the purpose of stibstituting in place the least of it, of a most i|uestioiiable character, 
 <it stuck then owned by him in connection with it cannot be disputed, under the evidence, that 
 \n-i ^:\h\ liiisiness. These goods were never so tliedv'"dof 1,'Uh Dccciiiljcr was a /wjif^y/V/^Urans- 
 cnuvcyed to the iilaiiilills. IJy the terms of the action on the part of Korsyth, Fordham, aiul 
 iiiiirtgagc the debt due the ))laintill's was to be the other (Mcditors of Davidson, without notice 
 paid ill ihii'c years, in twelve ei|ual iiistalnieiits of the exi.-tcnce of the mortgage, or any notice 
 ill spccillcd limes, and if any inslalmeiils should whatevt'r of any claim on ihe (larl of the plaiu- 
 hoiuijiaid for lifleeii days after becoming <liie. litis thereunder. 
 
 the whole amount then due the ])laiiititfs would 'I'hi' (piestion raised is iioi between plaintitfs 
 
 hecniiio iimneiliately payable, and they could and Davidson, but bclwetn plaintiffs and h'or- 
 
 tako iiii.ssosioii of and sell the said mortgageil syth, as trustee, and Fordham and the other 
 
 guilds, ft was further agreed between the said creditors of Davidson, and, in fail, a simple 
 
 ilcfcMilaiit ami the plaiiititis that to .save the ipiestion as to which shall lia\ e )iriority, the 
 
 iHisiiioss ci'eilii of Davidson the said mortgage creditors under the mortgage or the creilitors 
 
 Was not to he Hied and was to lie kept secret; under the assignment lo Forsytii. liy the mere 
 
 and it was not tiled until Dec. l'_'lh, ISSl. On agreement of the deeil of May, ISSO, to convey 
 
 tliu b'ith Dec, ISSl, Davidson made an assign- all stock Davidson might purchase, no property 
 
147 ASSIGNMENT. 148 
 
 or title in any sui'li L'nods imsscil in pliiiiititlH. M., issnoil ii writ of excentinn mulcr wliich 
 
 But V)y till' dccil (if Dl'^i'ihIiit lUtli, ISNl, tin,' ilufeiidant, ii.s Shcritl', Icvii'il upon the HliariH innl 
 
 title and the pioiierty in these gocids, tlien in ]H(icfe(h'(l to neil. Prior to the sale, iilaimitl' 
 
 the possession of Pavidson, vested alisolutely in appeared before the Uegistrnr of Shippinj,', mul 
 
 Forsyth, and Fordhani, a ereditor, lieinji a ))arty after making a declaration of ownership wns 
 
 to tiie died, the relation of trustee ami ccftiii entered ii]Kin the register as owner of tliesliarcs. 
 
 r/iio trust was estalilished between Forsyth and //M, that idaintitl' had no (MHiitahle right 
 
 P'ordhani and the other ereilitors of Davidson, which eoiihl he so asserted or wiiieh eoiild pre- 
 
 wherehy Ftirdhaiii ami tlio other creditors nc- vail over the judgment creditor and the levy 
 
 (iuire<l a heiu'licial interest under it. As soon made liy the defendant. 
 
 as Foidliam signeil tiie deed, Forsyth ceased to Moffult v, Fi ri/iixoii, (i K. fc (1., L'17; 
 
 Ilea mere mandatary of Davidson, and an oner- (J ('. 1... 'I'.. 441). 
 ous trust was ininosed on him, creating a duty 
 
 to the creditors which he could not cast off. «' Pren'rciitliil - Ri'slstration- Srd Kov. 
 
 This relaticm l.eing estahlished, it was a consid- ^*-'^*'- '-" ^^^' «• ^~^^- '^^^ ^^'^^ ^*''^*«" «' ^'^' 
 
 „.. ,; f .1 1 , 1 ■ , I s. 1 — A iireferential assiL'innent, no matter Imw 
 
 eration for the deed, wliicli was no longer ' . . ^^ 
 
 ,. 1.,,, . , ir I I 11- 1 1- ,\ i> -lu \ slii'ht or meritorious the preference may lit, 
 
 voluntary. {/Irirltinil v. Jiiii/<K, l.> (). I!., (IS.) ^ i j ^< 
 
 rpi . f ., 1 ■ ,.,,. 11 and thout'li niade for the beiietit of all tiie 
 
 1 liereforc the plaintitls, having only an eipn- . * 
 
 , 11 , ,.1 I ., 1 f 1 . 1 1 .-.i creditors of the assimiiir, is not an " as.siL'ii- 
 
 talile title, ami the iletcudants a lei;al title, *= ' *• 
 
 , -.i . .. .Ill .-.1 J 1 nient for the I'eneral lienetit of all the crcdiliii.s' 
 
 wiliHHit notice, the leg.il title must prevail. '^ 
 
 The case is governed in principle liy Jo.^rp/> v. witlm' tlie meaning of the sixth secti.iiHif chap. 
 
 Lj/ons, :« W. I!., 14(i. S.r. uUo, HnlU,^ v. "" '''''''^''^ Statutes, and has, theretoie no 
 
 71 / .- .1,1 w n ,,),. ertcct until rci'istered. 
 
 livhintoii. Si \\ . I!.. 4_(i. "^ 
 
 1) w 1 -I'l 11 1 111' 1. lUiifhx. .V(ti'7/( /•,'_' Old. , 1. 
 
 /(/• Henry. .1. I here would he no dithciilty '' ' ' 
 
 in arriving at the coiicliisioii that McAllister 
 
 ought not to jirotit liy an arrangement intended 
 
 ohvionsly for his own henetit, to enalile David- U. OV t'HOSKS IN ACTION. 
 
 son, liy false pretences, to olitaiii further credit 
 
 from parties outside. The second hill of sale 1. I'hOSCS 111 actloil ActiOIl brOIIRllt bjiis- 
 
 ■was one which the Shitiite of Xova .Scotia was signee in name of assignor of -I!. & .1. as-ii'iml 
 
 intended to prevent. Hut the law in relation to to (J. ik T., who assigned lo plaintitV. The 
 
 the transaclion was properly hiid down by the assignment included a 'lebt due by dcfcinliiu 
 
 Chief Justice, and su.stained by the cases he for goods sold and delivered, riaintill' sued in 
 
 referred to. the name of H. i*c .1. T<i prove delivery, a paper 
 
 MrA/tifti r V. Forsjilh. 1l' .S. ('. R., I. «as put in evidence, which purported to lie a 
 
 Leave to apjieal to the I'rivy Council was bill of huliiig of the goods, but tiiere was no 
 
 applied for on two grounds : — suthcicnt evidence of the signature. An accmnit 
 
 1st. That the judgment involved matters of "as rendered defendant of the amount due R. 
 
 general public interest. & J., together with a demand of payment by 
 
 •2nd. iJeeause the judgment was wrong in O. & T., the as.signees. A copy of the accomit 
 
 law and at variance with the Knglisli authorities, and notice, and a letter written by defendant to 
 
 Held, that it was not of sutlicient public in- T., one of the assignees, in which he acknow- 
 
 tcrest to warrant leave being granted, and that ledged receipt of the notice and made an offer 
 
 the judgment did not appear to be siitficiently to compromise, were also put in. 
 
 wrong to justify the Privy Council in interfering Ihid, Thompson and Rigby, JJ., dii^iutUKj, 
 
 after the parties had elected to appeal to the that there was no siilheient evidence, eitlier of 
 
 Supreme Court of Canada. Xnt ri/iorlcd. goods sold and delivered or of account stated, 
 
 to enable plaintitf' to recover. 
 
 ■J. For the beilOflt of creditors -Interest Po- Thomjjson, .T.— Where an action is 
 
 in shipping not transferred bj' — Rights of brought by an assignee in the name of the 
 
 judgment creditors as against assignee — Mer- assignor, and the assignment is pleailed, a 
 
 chants' Shipping Act — Execution — Replevin — replication is good, setting up that the action 
 
 W. H. M. made an assignment to jilaintitl' for is brought by the assignee. 
 
 the benelit fif his creditors, rif his entire proper- Jium'« y ct id. v. Cunnhnjlmm, R. i^ C., .'l.ii 
 
 ty, incluiling a number of shares in the schooner (i C. L. T., -490 
 G. W. Moore, but no bill of sale of the shares, as 
 
 required by the .Merchants' .Shipping Act, was 2. ChOSeS In aCtiOH - Assignment Of- 
 
 either executed or delivered to phiintilf. 1). & —3rd Rev. Stats., c. 124, ss. 63 and 65- 
 
 M. having obtained a judgment against W. H. Resulting trust — Notice — Where it maybe 
 
149 ASSIGNMENT. 150 
 
 j,Pfve(l— All iisHit'iinu^nt of II rlclit iiikU'I' cliaiittT W. ('. A., altlimigli it (i))j)«'iii'C(l tliiit suit was 
 
 I'Jl Ki'v. Stilts. (Hill Muiifs), .sL'rtiiiiis (i,S and 05, , ln'otiglit tor tlii' iiunctit of \V. (". A. 
 
 iiiiiv 111' iiiailf liy I>ai'ol as wi'll as liy ilct'il. /'« c 'riioiiipsoii, J., that the property ami 
 
 Sui li nil aMsigmueiit is not liail liccauso of a money sueil for were not the jti'operty or money 
 
 It Milt in;.' trust in favor of the assignor, or if of (ijaintitrs, hut of S. k M., who were not 
 
 niiiilf fur tlie iinleiiinity of tiie assignee without estoppeil liy joining (as ereilitors) in the con- 
 
 ail lutiial ailvanee. ^\'here tlie Aet reiniireil veyanee to i)laintitr.s. 
 
 iiiitiii' of iiu assignment to lie " serveil on the I'l r Higliy, J., that the defemlanl hail sua- 
 
 ]iai'ty III he sued, or left at his last plaee of tained his statutory plea that before action 
 
 alii.dr," the delit had lieen assigned to \V. ('. A., liut 
 
 //./'/, w laif the delitor was an attorney, that that it would liave lieen eomiiiteiit to jilaintifls 
 
 a iKitiie served iipon iiiiii Ky leaving at liis ollice to reply that tliey were suing for tlie lienetit and 
 
 iiisti'ad of. ill the words of the Aet, "at his last witli tiie eoii.sent of \V. ('. A. 
 
 ]il,iLC of ahode," was within the s)iirit of tiie Tliuni/i-'oii <t at. v. Acldittr->i . (11!. »<; (i., 1 j 
 
 Alt. (IC. L. '1'., 136. 
 
 O'l'miiKn- V. I)'m/-v, ;i N. S. I)., 71. 
 
 ;j. (hoses In action InstninM.nMin|)rop. , n,„se m action Attacliniont Issued by 
 
 eriv treated as a.s.signnient oi >arah howler, . i. i ■ i.- xr !• c 
 
 " assignee of chose in action- .Notice ot assign- 
 piiviniis In her death, executed in presenee , \^ r • r ai.\ t> 
 
 ' . ' ment unnecessary before issue of~4th Kev. 
 
 il tuo Witnesses, an lllsl niliielil wiiirli eon- ,^. , _. „._ ,,, . .,,. . t 
 
 , , . ,, . , . ,, Stats., e. 94, s. 3o7—l'laintitl, as assignee of J. 
 
 t.iliieil the tiillowilig lirovisioii, siilp.-.taiitlallv : , ,, , , i i- i . ■ i i. i ^ 
 
 ^ ' ,,,.,' •^- .\K 1).. to \\hom deteiidaiit was indelite(l, at- 
 
 — •■ I liii iiiiistitiite mv dauj-diter, A. M. rowler, , , i r .t i i i i. i 
 
 ,. . taehed eei'taili goods ot tile delitor: eliattel 
 
 IMV attoiiiev. tor herself and ill her name to ,, . i i ■ ,■.!■• .. i 
 
 mortgagees sought to set aside iilaiiitilt sattaeh- 
 
 liieiit, on the ground that tiie debt was not 
 
 '•justly due "and "]iayalile 'to |ilaintitr, as there 
 
 , T , ,, , had lieen no iiotic(^ gi\en liy plaiiitill' under 4th 
 
 liiv Imsliiess coriesiioiideiiee that 1 should have ,, ,,, .,._ 
 
 ' , , , .„ . rtev-. Mats., e. !t4. s. .i.n. 
 
 cdllri't all iiioiieys. delits and rentals w hieli are 
 or shall lir iliir tii me, or had lieen detained 
 Iriiia iiic whin I was alive, and to rondiiet all 
 
 (li'iie when alive, and [ hereby ratify whatever ,, i , , ' ■ . i 
 
 ,,,,,.,, ' //'/'/, that notice was not neee.s.sary in order 
 
 iiiy said attoinev shall lawfully do, &c., and I 
 
 will lici' whatsoever I have in the house." The 
 
 to eiudile iilaintitr to attach. Cf. ."itli, R. S., c. 
 104, t). Ixi. 
 
 iilaiiitill', A. M. Powler, treating this instrument ' ,, ,, , •> d c .. i/,- 
 
 ' ... /Vow//-, v. J/Mcy-ao*, .1 II. & (i.. 4(1.). 
 
 a.< an assiginneiit ot fliosi s Ik (tclioii sued defeii- 
 
 ilaiit on a promissory note made in favor of 
 
 Sarah Fowler, and for rents of hmd occupied as III. UXDKl! IN.SOFA'KX'r M"\'S. 
 
 lur tenant. 'I'iie verdict for plaint Iff was set 
 
 iisiile by tlie Court. 1. Assignee — Kc-opcnlns onler for (lis- 
 
 Foirl, /• V. A'AA rkiii, •_' F!. & ()., 1 44. charge of, after time for appeal has expired — 
 
 Commission of assignee -The assignee in bis 
 
 4. Chose in action — Right to sue In name final account charged commi.ssion on .■?7,4(IO, the 
 
 of a.ssignor of- -4th Rev. Stats., c. 94, s. 356 — gross proceeds of real estate sold under fore- 
 
 '>\ . ('. A. made a liill of sale of goods to .S. i.*t closure, the whole of which, with the exception 
 
 M., anil shortly after made a eonveyance of the of S14 surplus, was paid over by the Sheriff to 
 
 same piojierty to plaintiffs in trust to pay off the attorney of the mortgagee. The order for 
 
 thi'ileht secured to ,S. & .M. by their bill of sale, the assignee's discharge passed Dec. '20th, 1877, 
 
 ami to pay off also all <ither creditors signing and on .Fan .'?rd, !87S, the Coiintj- Court .Judge 
 
 the (l.eeil, aiiioiig whom were S. Ik. W. I'laintilfs granted an order //is/ to re-open the order for 
 
 liaii licfdie suit assigned the debt for which they discharge, in order tliut this sum of .s;7,4(X) 
 
 Wire now suing to the original assignor, W. C. should be deducted from the amount on which 
 
 -V. The .Tudge before whom the cause was tried assignee's commission was charged. The .Judge, 
 
 gave a verdict for defendant. after argument, discharged the order ///.-./' on the 
 
 Hi III. that the rule /(/>■/ for a new trial sboulil grouml that, the eight days for appeal from the 
 
 be iliseliarged. order discharging the assignee having expired, 
 
 Pir MclJoiiald, t'. ,T., and McDonald, .F., that the assignee was beyond the summary jurisdio- 
 
 tlit prior assignment of ,S. & M., was no defence, tion of the Court. 
 
 as S. it M. had joined in the deed to plaintiH's, Udd, that apart from any legislative Act 
 
 wit that plaintiffs could not maintain an action , conferring it, the .Judge had power to re-open 
 
 m their own name under 4th Rev. .Stats., c. 94, . the order for the discharge of the assignee, for 
 
 S' 3.50, having assigned the cause of action to ; the purpose of reducing his charge ; that, in 
 
151 
 
 ASSIGNMENT. 
 
 152 
 
 addition, the Judge had the power, under sec. ' 
 28, sub sec. Ii, of the Insolvent Act of 1875 ; j 
 that the aasignee was not entitled to commission . 
 on the §7,4(X), and that the judgment on the 
 order iiiti. must he reversed. 
 In re E-sfafa of Grant, Iii^olrait, .3 R. & C, 538. 
 
 2. Assignee under Insolvent Act— Rights 
 
 of before judgment to property attached — 
 
 Writs of attachment against the mortgagor, as 
 an absconding debt(jr, were issued, and delivereil 
 to the slieritt" on May '20th. An appraisement 
 of the mortgaged premises was made, and copies 
 of the writ, witli the a2)[)raisement and descrip- 
 tion of the land, were registered on May •21st. 
 On the same day a writ of attacliment, under 
 the Insolvent Act of 18(i!), was taken out against 
 the mortgagor, but was not delivered to the 
 sheriff until after he had registered the docu- 
 ments connected with tiie proceedings under the 
 Absconding Debtor's Act. 
 
 Held, tliat tlie claim of the ns^signee of the 
 estate, to the surplus proceeds, must prevail 
 over that of tlie attaching creditors. Section 
 24, of c. 79, 4th R. S., is controlled by the In- 
 solvent Act. 
 
 Almon el a/, v. Grat/ et a/., R. E. D. , 6. 
 
 3. Assignment under Insolvent Act after 
 
 attachment issued, but befoi'e judgment — j 
 Assignee entitled to money paid into Court ' 
 as proceed.*? of sale under order in the attach- 
 ment suit— Plnintirt', on tlie IGtli August, 1 875, 
 issued a writ of attachment against defendant, 
 an al.jconding debtor, tlie affidavit of debt des- ; 
 cribing him as a tr;ider. Defendant's goods 
 were attachoil August .'JOtii, and, pursuant to a 
 judge's order, niailc September 4th, were sold 
 on Septend)er I.')th, and the inonej was paid ! 
 into Court on October 7th, to respond tlie plain- ' 
 tiff's judgment, after which, on the litlh Octo- ' 
 ber, proceedings were taken under the Insol- 
 vent Act of 1S75, to put defendant's estate in 
 compulsory liiniidation, and the estate jiassed 
 into the liiinds of tlie assignee. I'laiiitill' claimed 
 a lien under his attachment. 
 
 Jfil'/, that tiie assignee was entitled to the 
 money paid into Court. 
 
 Hiinis,;/ V. Hnre, ;{ R. k C, 4. 
 
 4. Insolvcnc) Ketentlon of an amount 
 
 by assignees in excess of amount paid toother 
 creditors, disallowed -Duties of Masters in 
 taking an account— Plaintitl' having become in- 
 solvent, made an assignment for the benetit of 
 creditors, whereupon one of the creditors was 
 appointed assignee. The business was recon- , 
 
 veyed to plaintiff on his undertaking to pay a 
 composition on the amount of his indebtedness 
 for the payment of which another of the defend- 
 ants became surety, and plaintiff subsequently 
 executed several assignments to defendants to 
 secure advances. Defendants having taken pos- 
 session under the last mentioned assignments, the 
 matters in difference ))etween jilaintift' aiid de- 
 fendants were referred to a Master, with instruc- 
 tions to " take an account and report the sum 
 due from either party to the other of them." 
 
 Tiie Master having reported int'tr alia that the 
 defendants, after paying the other creditors of 
 plaintiff their respective claims at the rate of 
 sixty-two and a lialf cents on the dollar, had 
 paid to themselves the full amount of their 
 claim, and that being of opinion thai; defendants 
 were not entitled to any greater rate of diviileiul 
 on tlieir claim than that paid to the otlier 
 creditors, he had ('isallowed the surplus with 
 interest, and had credited the same to the 
 plaintiff'. 
 
 Held, that under the authorities (Hhjijhm v. 
 Pitt, 4 Exch., 112, and Hoivdm v. Haiijh, II A. 
 & E., 1035), the Master was justified in nriking 
 the reduction. 
 
 Aho, that if he had failed to act as he did it 
 wouhl have been the duty of the Court, under 
 the authorities referred to, to give the plaintiff 
 the benetit of the amount overcharged. 
 
 Mcllreilh v. IJoii/l et al., 7 R. & C., .'Ul , 
 7 C. L. T., 4()G. 
 
 On appeal (o the Supreme Court of Canada, 
 
 Held, that the tlecision of the Supreme Court 
 of Nova Scotia, confirming the report of the 
 Master on the reference must be reversed on 
 the groimd that the Master had exceeded his 
 authority and reported on matters not referred 
 to him. 
 
 Doidl V. Mcllreith, 14 S. C. R., 739. 
 
 o. Assignment under Act— Prior assign- 
 ment of insurance policy — By delivery — 
 Interpleader — M. lirotliers, prior to making an 
 assignment under the Insolvent Act, transferred 
 cei'tain ))olicies of insurance to the plaintiff, to 
 wIkuii they were larg'.-ly indebted for adviinces. 
 The assignee having claimed the insurance, the 
 insurers applied for and obtained an inter- 
 [ileadci'. 
 
 Hehl, that though policies are usually assigmil 
 in writing, a mere verbal assignment, with de- 
 livery, gives the assignee an e(|uital)le right to 
 the proceeds. 
 
 ..l/io. that in cases of interpleader, a court of 
 law may consider the e([uitable rights of the 
 parties. 
 
 Mantiinij v. Hiuvniaii, 3 N. S. 1)., 4"2. 
 
153 
 
 ASSIGNMENT. 
 
 154. 
 
 0. Insolvent debtor — DisChnrge from ' concurrence of the assignor, and of consequent 
 custody — Subsequently acquired property — loss; and also that the de))ts assigned were of 
 
 Personal property— Fraud —Insolvent Debt- 
 or's Act of 1846— The Court will review a ver- 
 
 real A'ali.ie. The claim of an aswiguee of the 
 e(juity of redemption in mortgaged prendses. 
 
 diet negativing fraud in an assignment of per- for surplus j)ro(.ecds remaining after the sale of 
 .soiial property, and set it aside when contrary premises on foreclosure of the mortgage, is not 
 to a strong prepondei-ance of evidence. I barred liy twenty years' possession of the pre- 
 
 Tiie insertion of tlw nsuti] ru/iias (td ya/isfuci- mises by the assignor, who claimed under the 
 (»(/»//( clause will not vitiate an execution against : mortgagor, the moigagee having by the fore- 
 a party who has been discharged from custody closure suit asserted a paramount claim to the 
 as an insolvent debtor. ' possession, and the premises Iteiiig sold under 
 
 The language of the Insolvent Debtor's Act that claim. 
 (if lS4(i, which permitted a plaintitf to take, i Sunhli . The fpossessicn of the assignor of an 
 under executi<m, property xnlxi^qiuiitly ucquirtd '\ equity of redem])tion is not adverse to the as- 
 liy ilic insolvent, hdd, not to restrain a plaintiff i signec. unless shown to be in opposition to his 
 
 from taking, under execution, gf)ods fraudu- ' will. 
 
 Icntly assigned l)y the insolvent previous to his i 
 
 discharge under the Act. 
 
 An assigmnent of goods to a trustee, for the 
 
 licnclit of certain speciKed creditors, gives no ,, , . ,., _,„. . „, , 
 
 ,,.,,,, ,.. i 1 attaching creditor— Effect of bankruptcy on 
 lc:,'u. right to those creditors, uiuf.^s assentca CO ", . ... ,,, . . ,. 
 
 Collin.-. V. R,:id d al., 2 Old., -252. 
 
 9. Rights or creditors' assignee as against 
 
 liy them, but the property remains subject to 
 tiic control of the assignor, who may at any 
 time revoke the trust. 
 
 (^hKuri, whether creditors, to signify their 
 assent, must execute the assignment, or wliether 
 tlieir assent may be implied from other circum- 
 stances. 
 
 \\'here personal property is assigned lioiia 
 fill to pay a debt due the trustee, who accepts 
 the inist, its revocation may be implied from 
 suliseiiuent conduct of the parties wholly incon- 
 sistent with the trust. 
 
 Fttlraiu r V. Sairyrr (f al., .James, 277. 
 
 (. Insolvent debtor assigns equity of 
 
 redemption on discharge from arrest —Assignee 
 becomes a trustee — Debtor must be made 
 
 agency — Wife's equity to a settlement — .J. C. 
 died about the year KS(>2, possessed of a fund 
 amounting to t'8,ti.S8 2s. 4d., which he devised 
 to trustees upon certain trusts in favor of his 
 daugliter and others, and, upon failure of such 
 devises, then to Ids nieces or their lawful issue. 
 The original devises in the will having failed, a 
 rule was passed in the Fquity Court, on a suit 
 instituted by the trustees, liy which it was 
 ordered tiiat a portion if the fund should be 
 distributed and paid by the trustees, in certain 
 proportions, among the next oi kin of the said 
 J. C. 
 
 M. W.. being entitled as one of the next of 
 kin, Mith J. S. W., her husliand, executed a 
 power of attorney to S., empowering him to 
 receive the money condng to her by virtue of 
 
 the .said will. On the .Srd April, iJSfiS, ,S. re- 
 party to foreclosure suit-An assignment by ^.^.j^.p.^^ ,,,^,1^,,. ^..^jj p„„.gj._ j,,g ^„„, ^f ^^(y2^, 
 tl,e mortgagor of Ids equity of re.lemption,mi.ler ,,.,,i,,,,^ „„ t,,^ .,..j,„„ ,i^y^ .^^.J^g attached in his 
 the In.solvent Debtor's Act, makes the assignee a ,,,,,„i^ ,,^. p_ ^^ „„ p,.,,,.^,,^ i„„„ed against .1. S. 
 trustee for ium, and leaves in him a reniaitdng \y ^ ti,J |n,sl,and, as an absent or absconding 
 
 interest, in the natiirc of an e(juity of redemp- 
 tion, sullicient to entitle him to be made a party 
 to a foreclosure of the mortgaged premises. 
 The ndc or order to s-A\ must be annexed to the 
 
 debtor. On the 2.Srd February previously, .1. 
 S. ^V. had been adjudicated a bankrujit in Eng- 
 land, and a crt'ditors' assignee was appointed. 
 Notice of this was received by JS. on May 21st, 
 mortgage, .,r else contain a description by which ij^jj^^ ,,„t „„ „„iico of the bankruptcv had been 
 the iiren.ises intended to be sohl may be known. , ..eceive.l by E. 15. at the time of the issue of the 
 Mai/hiir v. Fill, .James, 108. attii.,hmen\ process. S. was notified by M. W. 
 
 8. Insolvent Debtor's Act -Liability of as- 
 signee-Equity of redemption —Surplus y • 
 ceeds— Possession of assignor of equity not ad 
 
 i on July 2itth, 18(i8, that she claimed the fund in 
 question in her f)wn right, and she followed this 
 up by a suit in eijui'v. 
 
 Ihid, on a ease prtj)ared, tiiat the creditors' 
 
 verse to assignee— In (U'der to mak^' an a.s.signee I assignee was entitled to the fund as against 
 under the Insolvent Debtor's Act liable for not ' E. 1'.., the attaching crcflitor. 
 onllecfing the assigned debts, there must be dis- | /iVW, aho, that the bankruptcy of ,1. S. W. 
 tiuct proof of neglect, or of positive forbearance , determined the power of ,S. to receive the fund ; 
 on his part towards the debtors, without the that it had not been reduced mU> possession. 
 
155 
 
 ASSIGNMENT. 
 
 156 
 
 and that it, therefore, must he treated as if 
 still remaining in the liands of the trustees. 
 
 Held, also, that the creditors' assignee was 
 not entitled to the fund without making pro- 
 visions for tlie wife, and that the latter heing 
 entitled to tlie fund as a rhoxe in action, was 
 justitied in coming into ecjuity for her protec- 
 tion. 
 
 Hdd, a/so, tliat as J. S. \V., the hushand, 
 was a Ijaniuiipt, and tl>e sum in controversy not 
 large, and M. \\., ttie wife, heing without any 
 provision i)y a settlement made before or at the 
 time of htr marriage, the taxable costs l)eing 
 lirst pai('. the balance of the fund should be 
 paid or secured to her for her own benefit. 
 
 Jto/nr V, Shannon, '2 X. .S. D., 14G. 
 
 IV. FRAUDULKNT. 
 
 1. Deed in ft-aud of creditors set asldc- 
 
 Evidence of fraud— Statute of Elizabeth— T. 
 L. caused a deed of certain real estate to be 
 made to a trustee for tlie benefit of his wife. 
 The title of tlie real estate was in liis son \V. F. 
 L. ))y whom tlie deed was made, but it was 
 proved that altliough the property .vas purchased 
 and the consideration money ^^aid by \V. F. L., 
 who was then a minor, yet his father had erected 
 part of a doulde liouse o)-. the propei'ty « ilh the 
 consent of Ids son, and tliat tiie deed from the 
 latter to the trustee was made witii the fatiier's 
 concurrence. At the lime of tlie conveyance in 
 trust, T. L. was indebti'd to the i)laiiititls, and 
 had been "going behiiid-liand " for some time. 
 There '.as no consideration for the trust deed. 
 
 Ili.ld, that the trust deed had tlie eH'ect of 
 
 "delaying and liindering" creditors witiiin the 
 
 Statute of Klizabetli and wasconseijucntly void. 
 
 Uoull tt a/. V. LInlon tt at., (i R. & ti,, 38; 
 
 6 C. L. T., 139. 
 
 2. Frandulentlj assigned property— At- 
 tachment of sustained — Defendant applied to 
 set aside a writ of attachment, levy and sheritt's 
 return on tlie ground that tiiis Court had no 
 jurisdiction because the property attached was 
 not tiiat of the defendant, having be»'n conveyed 
 to a trustee in trust for his wife some time pre- 
 viously. Affidavits were read in reply to shew 
 tiiat the trust deed was maile fraudulently and 
 in contemplation of insolvency. 
 
 The rule was discharged with costs. 
 
 Thompson v. EIUk, 4 R. & V,., 307. 
 
 3. Frauduleti' Conveyance — Assignment 
 
 under Insolvent Debtor's Act— An action was 
 brought against one of the <..- fendants, the sou 
 
 of the other defendant, for breach of promise of 
 
 ' marriage, in which a judgment was recovered 
 
 and recorded. Previously to the conmienceinunt 
 
 of sucii action, the son had paid for and olitaiiicd 
 
 a deeil of certain land which was not recordeil, 
 
 1 and it was alleged in plaintiff's writ or bill that 
 
 I fearing an adverse judgment in the breach (jf 
 
 j promise suit, the .son had destroyed the ohl deed 
 
 : and ])rocured a deed of the property to lie muile 
 
 to his fatiier wliicli was ante-dated ,so as to iiiako 
 
 . it appear to have been delivered before the com- 
 
 niencement of the action for breach of promise, 
 
 although, in fact, it was ma<le afterwards. Oii 
 
 being imprisoned under the judgment in the 
 
 breach of promise suit, defendant, the son, was 
 
 set at lilicrty on condition of his assigning his 
 
 interest in the property t > the plaintitt' in tliis 
 
 action as trustee for tlie plaintiff' in the breach 
 
 of promise suit, whicii he did. A suit in K(|uity 
 
 was then brought, in whicli plaintiff prayed thiit 
 
 tlie defendant the fatiiei', should l)e deciced tii 
 
 I convey the land in question to him and account 
 
 I for tlie profits. The E(juity Judge, considering 
 
 that the destruction of the old deed and suli:»ti- 
 
 tution of the new one was a ccnitrivance b..'t\v('cn 
 
 I the fatlicr and son, granted the relief prayed for, 
 
 I and the full t'ourt having arrived at the same 
 
 conclusion on the facts, afhrmed the decision uf 
 
 the Judge in Kijuity. 
 
 I (iraham v. Chisholm tt uL, 'J R. & ti., .'i.S ; 
 
 1 C. L. T., lill. 
 
 4. Fraudulent conveyance— 13 Filiz., c. 3 
 
 — 27 Eliz., c. 4 — What conveyances not with- 
 in the Acts— A Court of Equity will not, in 
 favor of a juilgment creditor, vdio has olitained 
 an assignment under tlie Insolvent Debtor's 
 Act, of a fatiier's property, treat as fratidiilunt 
 and void, under the Imperial Acts of 13 Kliz., 
 c. 5 and 27 Eliz., c. 4, deeds made by the father 
 to his son of all his jiroperty, where sucii ikeds 
 were made in consideration of valuable past 
 services, and bound the S(m to the payment of 
 certain sums to the fatiier's other ciiildreii, and 
 his grand ciiildren, and the jurj' found that the 
 deedswerenot executed witli intentto defraudthe 
 ' ere<litors ; although at the time the deeds were 
 made the judgment creditor had olitaiucd ft 
 venlict against the father, whicli verdict, liow- 
 ever, tiie father believed, and was advised by 
 coimsel, would not be sustained and did not, in 
 fact, ripen into a judgment until a year aftc"the 
 execution of the deeds. 
 
 Foxttr V. Fou-kr ct af., 1 Old., T.'i."!. 
 
 Conveyances made under such eircumstaiioes 
 
 are not mere voluntai'y conveyances witiiiii tiie 
 
 meaning of the Acts referred to. 
 
 Ibid. 
 
157 ASSIGNMENT. 158 
 
 A voluntary conveyance Ijy one not indebted I deed of assignment made with a similar object 
 
 at the time, not in embarrassed circumstances, I in view, and containing such a provision. 
 
 and not made with a fraudulent intent, cannot i Tht Union lio.iik v. Whitman et al., 
 
 be impeached in Eiiuity by a suljsequent creditor. 20 X. .S. R., (8 R. & (i.), 194; 
 
 Ibid. 8C. L. T.,;W1. 
 
 I Atlirmed on appeal to the Supreme Court of 
 The existence of a single debt wdl not, y/f'c w, i j^,,^j^,^^j,^ g ^^ j^ ,j, ^13 
 
 invalidate even a voluntary convcj-ance, at tlie 
 
 instance of a prior, or of a subsequent creditor. 
 
 Ibid. 
 
 7. Resultingtriist— Stipulation for release 
 
 I held good, although surplus to be paid to as- 
 signor after payment of executing creditors — 
 
 5. Fraudulent or void-As against Credi- ^^^^""^ °^ fraud-An assignment was n.a.le to 
 
 tors-Question for jury- One J. R., a-, old ti creditor who, with two others was p.efcrred. 
 
 .^, ■,. 1 ],„,i, „ 1 ,tu ,..1 11 After payment of the preferential claims tiie 
 
 lUiiii witli a wite and lUiugliter, lioth wlioUy or ' •' ' 
 
 , ,,• 1 1 *, . ;.,t..,» 1:11.., !*• , residue was to ))e paid ratably to the several 
 
 iif.irly blind, anil two miant children, being ' ■' 
 
 , , . i 1 • It 1 f -1 1 creditors wlio sliould become parties by execu- 
 
 uiiable to sujjport himself and family, conveyed * •'. 
 
 ,, , . . 1.1 „.,. . 1 , , e liuL' the deed, and who, on so executiiii', rc- 
 
 alllu.s j)i'()pertv, real anil personal, except a tett » . ' ' _^ , =;' 
 
 , . ..1 '1 • »•«• I ; 1 -1 leased iill claim against the debtor. Tiieassignee 
 
 :ihcc|). to the plaintitts. Ins son and sou-iii-law, * ° 
 
 ,. . c .1 • .■ 1 • ir 1 wu-i then, after payint; all the liabilities iiiidir 
 
 on cdudition ot their supportiiii; himself and . ' 1 .' fe 
 
 ^ ., ,.,, 1 r 1 » „ 1 " i. ii t- //(( /;(.<^*v(/»'»', to pay the suri)lus to the assignor, 
 
 family. 1 he defendant, wlio was at the time > i 1 o 
 
 .',.., • . T, / ,, Hi III, a good assignment in the absence of 
 
 nt iiiakms.' tlie assignment a creditor for a small /.,-,,,,, 
 
 .■,..,'., , 1.1 1 I proof of traud, or which the burden was on the 
 
 amount, obtained a judgment and took, under ' , • , , 
 
 I ■ 1 1 1 • ii • parties attacking the deed, 
 
 execution, a pair ot oxen included 111 this i ' ° .,•>,, 
 
 rp , • ..„. , .. c ^ 1 At/ion v. Arauhakl, 
 
 assii'nment. Jo plaintms action ot tiover, de- 
 
 , f . , 1 , ,. , , ,, . I ■ , , i 20 X. S. R., (8 R. & G.), -yU. 
 
 fendaiit j)leaded traud, ami the Jiirj-, having had ' > \ /> 
 
 the laiestion of fraud faiilj' put to them at the ! „ „ 
 
 trial, found for plaintiffs, negativing frau.l. ^' Prcfcrential-Consideration-Fraud- 
 
 11. hi, that the verdict coul.l not be disturbed. Assignor continuing in possession-Preferen- 
 
 i'-,].. .. I ..I ,. '/••, .> T> ( /• -<•! tial to a bona fide creditor valid — When the 
 uiaiiiy it at. v. 1 iiut, 2 R. & C, .)0l. 
 
 j consideration expressed on the face of an assign- 
 
 i ment is larger than the actual debt due by the 
 
 a n I.I ^ ».. <■• 1 . , . debtor to the assignee, it is not necessarily 
 
 6. Resulting trust - Hinder ng and de- . , , . ^ ^ 
 
 1 JM 10 t:<i- ,- f 1.. ^. o fraudulent. 
 
 laving creditors— 13 Eliz., c. 5— A. \\ . C. & „„ , , , . . , , ,. 
 
 , , 1 .■ . .,,,,, llie declared intention to exclude any credi- 
 
 N)n made a deed ot assignment to the defend- , <• ,. .,, , , 
 
 ^ ... , ^, . , , , tor or class ot creditors, will not render .such an 
 
 ant, \\ ., ot their real and i)eis(jnal property, 111 . ,., 
 
 » .,-.,, i., r A • 1-. r,M assignment invalid. 
 
 trust tor the beneht of their creditors. The r-T . ... . , , 
 
 , , 1 1 .1 . ■ u ^ r , 'he assignor contmuing m possession of the 
 
 (Il'imI pc-ovided that certain hist preference cred- , . , . , • , , 
 
 , , , , • , . r ,, . . , goods assigned is not a conclusive liailtje of fraud, 
 
 itors should be paid 111 full ; that certain secoml ,, , ^ , . , , , 
 
 c T, , ,, , , .,.,,, J* rami or no traud is a (luestion that belongs 
 
 preference creditors should next be paid m full, ' .• , , . 
 
 1 .1 . .1 1- , , ,, , ', entirely to the jury, 
 
 and that other creditors who should become' ,,, „ „ , „., ,, ,„,, .i^. 
 
 larratt v, ISau-ytr, 1 Ihoni., (1st Ld).,20; 
 
 (2nd Ed.), 4G. 
 
 parties to the <leed should next be iiaid yco rata, ' 
 wilhoDt preference or priority, and that the ' 
 balance, if any, should be reconveye<l l)y the 1 
 assignee to A. \V. C. & Son. The deed con- 
 tained a provision that the assignee should not I V. MISCELLAXEOUS. 
 be liable or accountable for more money and I 
 
 etl'ccts than he received, nor for any loss or ■ 1. Assignment Of bond tO CO-SUretieS — 
 damage wliich might happen in reference to the Demurrer — Demurrer to declaration by obligee 
 trusts lueiitioned, unless it should arise through ! on tioiid assigned to co-sureties who had paid 
 his m\ii wilful neglect. It also contained a pro- i defendant's debt, overruled, 
 vision reipiiring a release of all claims against 1 Exchani/e Bank v. lirown, 2 R. & C, 335. 
 
 the debtors from the creditors executing the ' 
 
 deed, and excluding all creditors who should : 2. Duress, Conveyances procured by set 
 
 not become parties thereto. i aside— M. J. S. made an assignment to T. M. J. 
 
 IJilil, that the deed was void as hindering ' in trust, fw' the benefit of his creditors, subject 
 and delaying creditors within the meaning of 13 to a prefei'ence in favor of J. M. S., his father, 
 bli7,., I cp. i'l. A resulting trust such as that j for a large amount. M. J. S. was arrested at 
 created in favor of the debtor, will vitiate any ■ the instance of Montreal creditors from whom 
 
159 
 
 ASSIGNMENT. 
 
 IfiO 
 
 he had purchased goods a short tiiiit; jneviously 
 to tho milking of the assigniiii'iit, charged with 
 having prociiifil goods under false ])relenees. 
 
 As a condition of procuring his son's release, 
 the father was induced to make an assignment 
 of his pieferential claim for tlie i)enctit of the 
 creditors, and also to assign for the same i>ur- 
 pose, and fia- the purpose of defraying the 
 exp' js of the sou's anest, a mortgage which 
 he h'-ld on the pi-operty of one T. M. 
 
 Jlitil, tliat the fatiier, umler the circum- 
 stances under which the assignments were 
 made, was not a free agent, hut that the assign- 
 ments were void, as having lieen procured liy 
 duress, and umst he set aside. 
 
 Jonen lif a/, V. Joliiix iJ a/.. "JO X. S. I!., 
 
 (8 R. .V (i.). .'iTS; 
 t»t'. L. T., (M. 
 
 Oil rippifi/ /o /III Sii/iri nil ('niii'f oj' Cnii(«l(i, 
 Ifilil, atKrnnng the judgment of the Court 
 holow, tlial llie nature of the proceedings and 
 the evidence clearly showed that the criminal 
 jjrocess was only used for the ])urpose of getting 
 S. to Montreal to eualile the creditors to put 
 pressure on him in oi-dcr to get their claims 
 paid or recured, and the transfer made hy the 
 father under such circumstances was void. 
 Short IJ d (il. V. Joii(.< it «/., 1.1 S. C. R., ;!t)8. 
 
 3. Equitable- Uarnisliee process— Estop- 
 pel — Plaintiir held a judgment against one 
 George Cuttcn, an<l was ahout to sue Ryerson 
 and Moses, whom he understood to he C'utten's 
 piirtncrs. liefore doing so he consulted one of 
 the defendants liy whom he was informed tliat 
 there was a lialance of some .S-jTi'O due from the 
 defendants to Cutten for work performed for 
 the defendants on the ^Vcstern (uunties Rail- 
 way under a contract, and defendants suggested 
 that tjiia amount might he made availahle to 
 satisfy the plaintiffs claim if there was a gar- 
 nishee law. I'laintitrsattorney. on the strength 
 of this representation, issued garnishee process, 
 when defendants pleaded, denying that there 
 was any deht due. 
 
 //'/(/, that the defendants were estopped hy 
 their representation.s from denying their indel)t- 
 edness to Cutten. 
 
 Previous to the garnishee process heing issued, 
 Cutten had drawn an order requesting defen- 
 dants to pay all sums connng due to him under 
 the engineer's monthly certificate, tooneK.vllam, 
 but there wa', no evidence of any indebtedness 
 of Cutten to Killam. 
 
 Hild, that this was not such an equitable as- 
 signment as wouhl prevent the garnishee pro- 
 cess from operating on the fund. James, J., 
 dissentiwj. 
 
 Pir Smith, J. — The onus is on defendants to 
 
 show consideration for the order. This has not 
 
 been done. }\(iii ruiisliit that there are not huf. 
 
 licient funds in ilefendant's hands to satisfy 
 
 both claims. 
 
 F!/:raiiilo//i/i v. Shaiilij it a!., 
 
 •2R. & a., 190; 
 
 1 C. L. T., 70,-,. 
 
 On n/i/iiit' to '/(( Sii/irtmi Court of Caimdii, 
 lliiil, aliirming the judgment of the Supieme ■ 
 Coui'l of Nova Scotia, .Strong and (1 Wynne, .IJ., j 
 di-i.iniliii'l, that the defendants were estoi)pe(l liy 
 their representatirni fr(,... denying their indclit- 
 edness to Cutten ; and that there Mas nut 
 evidence of such an assignment as would i>ie\ cut 
 the attachment from operating on the fumt. 
 Appeal dismissed with costs. 
 
 Sliaii/i/\: Fi>:rniiilo//ili, .,'Stk A/iri/, bSS'i, 
 Cas. Digest, l.")!!. 
 
 4. Equitable, of fund- Prior order for 
 
 payment of — Plaintifl's claimed to be entitled to 
 a sum i)aiil into Court by .Messrs. Ryersun & 
 Co., under an assignment of it from If. M. 
 Oakes. Previously to this assignment Oakes 
 had given an order to Dunn & Vaughan on 
 Ryerson for the amomit, which had been pre- 
 sented, and t(j which no objection wa.s taken, 
 ' the order was given to Dunn & Vaughan for 
 supjdies furnishe<l by them for a vessel, the sale 
 of which by Ryerson hral created the fund, anil 
 was given in pursuance of a promise when the 
 sui)plies were furnished, that they should be 
 paid i')r out of the proceeds of the sale. 
 
 //(/(/, that Dunn & Vaughan were entitled to 
 a decree for the amount of the order, with costs 
 against the plaintifTs. 
 
 Odbs ,1 at. V. I!i/i:rson i-.t uL, R. E. D., 4S7. 
 
 5. Execution of deed of-Elfcct of note 
 
 appended to signature — Receipt of composi- 
 tion — The plaiulitf executed a release to the 
 maker of a certain promissory note, on wliieh 
 defenihint was sued as indorser. The release 
 ' was in the most general terms, which were ail- 
 nuttedly wide eniaigh to include the note .siieil 
 on, but it was signed in the following form :— 
 "The Exchange Rank of Yarmouth, N. S., for 
 and in respect of and only for and in respect 
 of the several claims, notes, bonds and secur- 
 ities, for money mentioned and referred to 
 in the schedule of the Exchange Rank of 
 Yarmouth, N. .S." The notes sued on were not 
 included in tl'.e schedule. 
 
 Htid, that the teinis of the signature did not 
 control the general provisions of the release, and 
 that plaintiffs could not set up that their execu- 
 tion of the instrument was void, after having 
 
IGl 
 
 ASSIGNMENT. 
 
 162 
 
 recuivL'd money from tlie estate on tlie .strength 
 of tlie iissignment. 
 
 7'/tr Exr/KDiiji liaiikw lildhni, 
 r)R. &(!., oWX 
 
 On a/'/iia/ to Prinj Coinici/, 
 \nt every attempt hy a form of execution to 
 restrain tlie full operation of a deed ean be 
 treated as a non-exeeution of it. Where a deed 
 of iissignnicnt by <lelitors to a trustee for the 
 lieiiftit of all creditors who sliouhl execute tlie 
 deed was executed by the plaiiitifl's, who a[)- 
 jieiided a note that tlicv executed only in respect 
 of certain claims scheduled to the deed and 
 aiiiiniMtiiig to t;7.'J..").SI, and it n,ppeai'ed that sub- 
 se(|Uciitly thereto, they receiveil a sum of iiuiney 
 fiiiiii the trustee by vii'lue of their execution of 
 the deed, 
 
 /fi/il, that the plaint itf's were liound. The 
 note ilid not amount to a refusal to execute ; and 
 the plaiiititis having received payment under ihe 
 deed could not be heard to I'epuiliate it, and 
 deny their execution. Wi/b'nsoit v. Aiin/o-Ca/i- 
 foniinii (!o/(l Miiiiii;/ Com/Kan/ (IH, Q. B, , ''2H) 
 held t) be inapplicable. 
 
 Til' Exchaiiiji Haul: of Yurmonth v Bklhui, 
 10 App. Cas.,'273. 
 
 0. Inartificial instrument construed as 
 
 assignment -Surplus proceeds —Contest for — 
 R. M. ,'C Co. sought to have surplus pniceeds 
 arising out of a sale under foreclosure applied 
 to a rccoiiled judgment held by them against 
 the mortgagor. The judgment was recorded in 
 Miiy, 1S74. I'laintilf's mortgage had been re- 
 i<irded in 186!), and a, prior mortgage of the 
 s;inie jiroperty had been recorded in I8."),">. I)e- 
 fuiidiiut having become insolvent, his assignee, 
 ill order to jirevent the saciitice of the jiroperty, 
 piiid off the mortgage last mentioned uiid the 
 iiitciot on plaintirt's mortgage, receiving from 
 tliu holders of the mortgage which he paid an 
 iiistranuht in which, after reciting payment of 
 the 1 riiicipal and interest, it expresseil that the 
 bond was delivered up to be cancelled (which, 
 however, was not cancelled, Imt was produced 
 with the mortgage), and that they remised, re- 
 leased, and ((uitted claim to him, as assignee, 
 the land therein mentioned, and all the right 
 which they had as executors, and all sums men- 
 tioned therein, to have and to hold to the said 
 K., as assignee as aforesaid, his successors and 
 a.S8ign3. 
 
 H<ld, that this instrument, though inarti- 
 ficiuUy drawn, was open to the construction that 
 It was a satisfaction of tlie debt as between the 
 executors and the assignee, but conveyed to the 
 latter all their interest in the mortgage as 
 against subsequent incumbrancers; but that, 
 6 
 
 even assuming that it was a release of the mort- 
 gage, and not an "'.signment, the assignee had a 
 prior claim to the surjiliis ])roceeds for the 
 amounts he had advanced on the mortgage to 
 prevent foreclosure and sale, suliject to a credit 
 for any amounts received by him for rent of the 
 j mortgageil premises. 'i"he assignee had also 
 recovered judgment against the SheriH', who 
 bad been indemnified by R. M. & Co., and they 
 lieiiig entitled to a lien on the land if their judg- 
 ment against the defendant was established, if 
 not to a dividend on', of defendant's estate, it 
 was agreed that tlu'y should be relie\cd of the 
 assignee's judgment against the .Sherill', and that 
 the amount should go against their judgment in 
 the event of its being held valid, or if not, then 
 against their dividend. 
 
 llil'l, that the assignee, under this agree- 
 ment, had also a irior claim on the surplus 
 proceeds for the amount of the judgment against 
 the Sheritf, and that R. M. & Co. were entitled 
 only to the balance. 
 
 liouil v. I IhI I'll ill son It ul., R. E. 1)., 44.3. 
 
 7. Mortgage recorded -Tlien attaclinicnt 
 
 — Then assignment of mortgage --Attaching 
 creditors do not acquire priority over assignee 
 -4th R. S.. c. 79 ss. 19 and 22, same as 5th 
 R. S., c. 84., ss. 18 and 21— The defendant, 
 holding a mortgage on certain real estate which 
 was duly recorded, assigned the same to the 
 plaiiitili's, after which defendant purchased the 
 eiltiity of redemption, and the deed was duly 
 recorded. Attachments were then issued against 
 the defendant as an absconding debtor, and the 
 attaelinients, as well as the judgments entered 
 thereon, were placed on record liefore the as- 
 hiignmeiit of the mortgage. The attaching credi- 
 tors claimed, under 4th Revised .Statutes, e. 70, 
 s. 19 and i2'2, to have priorilj-, as against the 
 assignee of the mortgage. 
 
 Jli/d, that the mortgage remained a lieu on 
 the property, whether the assignment was re- 
 corded or not, and that the attaching creditors 
 had not the priority claimed. 
 
 limjinond vt a/, v. Ilirhards, R. E. 1)., 4'23. 
 
 8. \otice of assignment — Must specify 
 
 exact interest assigned — When a party takes 
 an assignment of a chose in action, to enable the 
 assignee to bring an action under 18 Vic, c. '23, 
 the notice must specify the exact interest of the 
 assignee under the assignment. 
 
 Ward V. McDontdd, 2 Thorn., 422. 
 
 9. Right to a grant— Mortgage of— Assign- 
 ment — Right of mortgagee as against grant 
 taken out by mortgagor's assignee — T. A. and 
 
163 
 
 ATTACHMENT. 
 
 164 
 
 J. A. were entitled to receive grants of certain 
 Crown Lands upon which the price liad been 
 paid to the government. Before taking out 
 their grants tiiey mortgaged their rights to 
 phiintitt". iSubse(iuently they became insolvent, 
 and made a general assignment to defendants 
 for the benefit of their creditors. The defen- 
 fendants as such assignees, applied for the 
 grants, and had them made out to themselves, 
 selecting lots in difi'ereut localities from those 
 indicated in the original application, but the 
 money paid for them was that paid on the 
 original application. On the plaintiff seeking 
 re-payment of the amount loaned by him to T. 
 A. and J. A., the defendants refused to satisfy 
 his claim. 
 
 Held, that as assignees of tiie A.'s, they had 
 only succeeded to sucli rights as the A.'s pos- 
 sessed at the time of tlie assignment, and those 
 rights having been mortgLsjed to plaintiff, his 
 claim should first be satisfied Ijcfore they could 
 deal M'ith the land granted to them. 
 
 Stephens V. Tiriniuij et al. 3 N. S. D., 445. 
 
 10. Suit brought by assignee in name of 
 
 assignor — Where the attorney of the assignor 
 
 was the assignee, held, tliat action might be 
 
 maintained in the name of the assignor. The 
 
 assignee may brnig suit in the name of the 
 
 assignor. 
 
 WaUh V. Hart, 2Thom., 400. 
 
 ASSOCLlTIOJf. 
 Marine Insurance— Right to retain money 
 
 due an association collectively for deljts due by 
 an individual member of the association denied. 
 Seeton et at. v. The Merchants' Bank, 
 
 6R. &«., 113; 
 
 GC. L. T.,442. 
 
 ATTACHMENT. 
 
 I. OF DEBTS, 164. 
 
 II. OF THE PERSON, 16,). 
 
 III. IN PROCEEDINGS AGAINST ABSENT 
 OR ABSCONDING DEBTORS— 
 
 See ABSENT OR ABSCONDING DEBTOR. 
 
 IV. UNDER INSOLVENT ACTS— 
 
 See INSOLVENT ACTS. 
 
 I. OF DEBTS. 
 1. Attorney's lien for costs— On a motion 
 
 on l.iehalf of plaintiff under the Ganushee Act 
 for an attachment of all debts due the defendant 
 by M., a lien for his costs was set up by the 
 attorney who had entered the judgment for the 
 defendant against M., but >\o notice had been 
 given by the attorney to M. , nor had any effort 
 been made by him to secure his costs. 
 
 Held, that the claim of the attorney could not 
 prevail over the attachment. 
 
 Cock V. Bliss, 1 R. & C, -M. 
 
 2. Estoppel— Equitable assignment -Gar- 
 nishee process — Representation of indebted- 
 ness by defendants — Plaintiff held a judgment 
 against one (ieorge Cutten, and was about to sue 
 Ryerson and Moses, «hom he understood to he 
 Cutten's partners, licfore doing so, he con- 
 sulted one of the defendants, by whom he was 
 informed that there was a balance of some 
 .$2,7<X) due from ti>e defendants to Cutten, for 
 work performed for the defendants on the Wes- 
 tern Counties Railway luider a contract, and 
 defendants suggested that this amoiuit might 
 lie made available to satisfy plaintiff's claim if 
 tiicre was a garnishee law. Plaintiff' 's attorney, 
 on the strength of this representation, issueil 
 garnisiiee process, when defendants pleaded, 
 denying that there was any debt due. 
 
 Ihld, that defendants were estopped l)y their 
 representation from denying their indcbteihiess 
 to Cutten. 
 
 Previous to the garnisiiee process being issued, 
 Cutten had drawn an order, requesting deleiul- 
 ants to pay all sums coming due to him, under 
 the engineer's monthly certificates, to one Kil- 
 lam, but there was no evidence of any iiideht- 
 edness of Cutten to Killam. 
 
 Htld, that this was not such an equitahle 
 assignment as would prevent the attachment 
 from operating on the fund. 
 
 Fitzrandolph v. Shauly et al., 2 R. & G., 199) 
 
 1 C. L. T., 705. 
 
 On appeal to the Supreme Court of Canada, 
 Held, affirming the judgment of the ,>5upi'eme 
 Court of Nova Scotia, Strong and Gwynne, JJ., 
 dissentiiKj, that the defendants were estopped hy 
 their representation from denying their indeht- 
 ediiess to Cutten ; and that there was no evi- 
 dence of such an assignment as would pieveut 
 the attachment from operating on the fund. 
 Appeal dismissed with costs. 
 
 Shanly v. Fitzrandolph, iiSth April, 1882, 
 Cas. Digest, 159. 
 
1G5 
 
 ATTACHMENT. 
 
 166 
 
 3, Insurance, policy of— Amount payable <lay of term for a contempt committed during 
 under, when attachable — A garnishee order the term. IJut tiie rule will be dischatged if 
 was made April 7th, at the instance of plaintiti', iieaded " In ri ," &c. when tliere is no such 
 attacliiiif,' an amount allegeil to lie payable to matter depending in the Court. 
 (Icffiidaiit under a i)olit!y of insurance. On ap- 1 In >•« Peti^r floss, 2 R. & C, ">96. 
 
 plication by tiiu agent of tiie company for delay, ' 
 on tlic ground that the loss was not admitted 
 ami that he wisiied to get instructions from his 
 company, an f)rder was made that tiie garnishee 
 sliould not ))« rc(iuired to repay the money until 
 the further order of the C'lnirt, and that in the 
 meantime tiie debt should remain attached. On 
 lltli October, tiie company, having in the mean- 
 time admitted the debt and paid it over to the 
 a.^sigiiee of the claimant, tlie Judge made an 
 
 order h/v/ for tiie payment of the money to the' _ . . ,i n • /^ ; 
 
 ,.,.,, . , , On anpealto fhn Prifu Council, 
 
 jiiil'Miicnt cieditor whicli lie afterwards made 
 
 absolute, holding that the garnishee, after as- '^ ''"vrister, being also an attorney of the Su- 
 
 senting to tlie or.ler of April -iSrd, was estopped, P''«""^ '-■""'»■' °f ■'^ '-'"'""y- '"'"^ ''^''" '^ «•"*•"' "' *''« 
 until the order was rescinde.l, from raising the ^•°"''t' ^^'■"^6 a letter, as such suitor, to tiie 
 fiuesti.ni tliat a p.dicy of in.surance couhl not be ' <^'''''-'f Justice, reflecting on tlie administration 
 
 2. Contempt of Court-Letter to Chief 
 
 Justice, by barrister, who is also a suitor — A 
 letter written by a barrister to a Judge, charg- 
 ing the Judge and the whole court with jiar- 
 tiality in eases in which he was a party, is a 
 contempt of court, for which the court may, of 
 its own motion, suspend him from practice. 
 
 In r,-^ T. J. Wallaic, 1 Old., 654. 
 
 of justice in the court, and amounting to a 
 contempt of court, whereupon tiie court sus- 
 pended him from practising in (he court. 
 
 Huld, that although courts of justice have 
 power to remove tlieir otHcers, if guilty of crime 
 or moral dolin((uency, rendering tlieni untit to 
 be entrusted witli a professional status, yet, in- 
 asmuch as the ott'ence in (juestion was committed 
 by liim in his capacity as a suitor, and not as an 
 officer of the court, punishment l)y tine or im- 
 prisonment was tlic appropriate puiiislimciit, 
 and the order suspending him from pi'actice was 
 directed to be reversed. 
 
 Wallaif, in re, L. R. 1 P. (.'., -283; 
 30 L. T. P. C, 9. 
 
 giu'nislieed, and that the proof of loss having 
 been satisfactorily madC; the amount became 
 attachable as an existing and acknowledged debt 
 wliicli tiicgarnisliee iuid paid over to the assignee 
 at Ills jieril. 
 
 Ill Id, tlial the policy was not attacliable under 
 liie garnishee order issued in April, and that 
 iKitliiiig had afterwards occurred to alter the 
 legal relations of the parties. 
 
 Po/iham V. Cdhoon, 3 R. & (J., 277. 
 
 4. Teacher's salary not attachable -Plain- 
 
 tltt' obtained a garnisliee order wiiich was made 
 alisoliite on the IStli June, without notice to the 
 defendant, to attach the salary payable to the 
 defendant as school teacher in the town of Pic- 
 toii, foi tlie (iuarter ending August 1st. 
 
 ILIil, that there was here no debt, but only a 
 portion of a sahiry, and that salary not attacli- 
 alilc under tlie Knglish rule, and the policy of 
 tiie Provincial .Statute ; and that as the rule of attach -Rule nisi for— Requisites— Service of 
 
 3. For disobedience to injunction -Inju- 
 rious character of acts of disobedience — 
 When demand necessary before proceeding to 
 
 ■On an application for attachment for disobe- 
 dience to an injunction, the party against whom 
 the attachment is .sought cannot lie permitted to 
 raise the question whether the acts which con- 
 stitute the disobedience are or are not injurious 
 to the party who has obtained tlie injunction. 
 
 Before application for attachment, a demand 
 is only necessary when something is lequired to 
 be <lone, as money paid, deed executed, etc. 
 A rule aid for an attachment for breach of an 
 vita for attachment— A rule for attachment for i injunction need not state that it was granted on 
 contempt i ' Court committed during an ad- reading the injunction. All that is necessary is 
 jounied te: m (adjourned under 4tli R. S., c. 94, 1 to produce the injunction in court. 
 *• 11), can be moved for on the last day of such Personal service of a rule nisi is waived by 
 term, and it is no objection to the rule that it is , appearance. 
 
 made returnable to the next term. A rule nisi \ The Starr Mannfarturinq Co. (Limited) 
 foi' an attachment can be moved for on the last I v. Fairbanks, 3 N. S. D., 46. 
 
 the iSth June had been passed without notice to 
 tlie defendant, and without argument, it must 
 he rescindeil with costs. 
 
 Frasti- V. Mc Arthur, 3 R. & C, 498. 
 
 II. OF THE PERSON. 
 
 1. Contempt of Court-Intituling afflda- 
 
167 
 
 ATTORNEY. 
 
 168 
 
 4. In Admiralty Court -Coniniitinent for 
 
 contempt — Party iirn.'.stud liy tlin process of the 
 Court of Admiralty, for rescuing a vessel ami 
 cargo out of the custody of the Marshal ami 
 officers of the customs, preseuls a hunilde jieti- 
 tioii for discliaigc, and is released. 
 
 Eiior/i S/uinrooil's Cam , Stewart, I'J.'J. 
 
 ATTORNEY. 
 
 1. Admission to the Bar— Motion for— Acts 
 
 1880, c. 13, s. 6— Order of Court, Slst May, 
 1881 — Under an order pursuant to the Act of 
 18)S((, ])ioviding tiiat a session slioulil l)e held 
 for "calling, arguing, and disposing of the 
 causes remaining on the docket." 
 
 Ililtl, that tlie only motion that could be en- 
 tertained, except motions relating to causes on 
 the docket, was a motion for admission to the 
 
 Bar. 
 
 lit A(l)nii<ion to Iht Bar, 2 R. & G., 3()« ; 
 
 •2C. L. T.,yii. 
 
 2. Articled clerk -Filing articles — The 
 
 court refused to allow a law student's articles of 
 clerkship to be tiled, nunc pro tuiir, where they 
 had not been tiled at the time of their execution. 
 //( re A/ijiticnlioii of llVf/w, 
 
 2R. &L'., 383. 
 
 3. Attorney and client— .Action to recover 
 
 amount claiined for professional services — 
 Speci.^.1 agreement — Delivery of bill not 
 necessary — Pleading — Practice — In an action 
 brought by plaintitTs to recover anamount claimed 
 to be due for professional services as solicitors 
 for the defendant, the jury foiuid that the de- 
 fendant did not contract with the plaiiititl's by 
 retaining them to execute professional business 
 for him as alleged. It appeared clearly from 
 the evidence that in two cases the plaintiffs had 
 been so retained, and in a thiril case the retainer 
 was admitted, but defendant swore that at tiie 
 time nis atl'airs were in the hands of C, his 
 assignee, and that he said to S. , one of the plain- 
 tiffs, "I am not acting personally, nor am I 
 going to pay any money personally, but it must 
 come by and through the a'signee and inspector 
 and out of the funds in their hands," and fur- 
 ther, "I told him distinctly that no personal 
 obligation was to attach to me. " 
 
 Held, that the denial of the retainer was not 
 sustained by proof of the special agreement 
 alleged. 
 
 Also, that the special agreement should have 
 been pleaded, and threw the burden on defen- 
 
 dant of proving atiirmatively, not oidy the .soiiice 
 from which the finids to pay plaintitK-i were to 
 come, but also that such funds hail not come 
 into defendant's hands. 
 
 Kitchie, .1., lUssi iiliiiii. 
 
 Under the practice in tiiis Pi'ovincc, tiic de- 
 livery of a )>ill of costs as rei|uired by ,'{ .liuues, 
 I, cliaplcr 7, is I'ot necessary, costs liciiij,' re- 
 coverable as any other debt. 
 
 .V(f/;/(- (/•(>/•»/ al. V. Fuirliaiikx, 7 R. & (;., 399; 
 
 7 f. L. T., 435. 
 
 4. Attorney and client -General retainer 
 
 — Compensation for professional services — 
 
 1 PlaintitI' was I'elaineil as solicitor of the defeinl- 
 
 ant company in arianging for the right (jf May 
 
 and all other mattei's connected \\ itli tlicir works 
 
 I on the Kastern Kxtension Railway. He rendered 
 
 ' accounts from time to time for services I'endered 
 
 in obtaining titles to land througli wliicl[ the 
 
 railway ran, and other services as attorney iiinl 
 
 : barrister, amounting to about .S'JIX) a year. 
 
 I These accounts included cash outlay for inivel- 
 
 ling and other exjjenses, but no charge was iiuide 
 
 i in tlieui for consultations, advice, corrcs|)iiiiileiac 
 
 and other professional work. The dofendaiu 
 
 company being about to transfer their road to 
 
 the (Jovernmcnt of Xova .Scotia, plaintill' made 
 
 a demand for further compiMisation for liis pro- 
 
 i fessioual services. His right to sucli coiu|)eii.*a- 
 
 I tion was admitted, and an account rendered 
 
 for services at tlie rate of .'51IKKJ a yi.ar. 
 
 Xo exception was taken to the charge as being 
 
 I excessive, and plaintiff was requested to act for 
 
 the company in connection with ritlicr legal 
 
 l)usiness. Tiie airiount claimed by plaintitf was 
 
 included as actual outlay in accounts sulmiittcd 
 
 ; l)y the defendant company to arliilrators 
 
 I appointed to determine the amount to lie paid 
 
 the defendant by the (iovernment iif Xova 
 
 .Scotia, and no objection was made to tlie charge 
 
 by the company until after the rejection of the 
 
 amount by the arbitrators, as not included in 
 
 the class of charges to be paid by the Province. 
 
 H<M, tiiat in view of the extent of the 
 
 plaintiff's practice, and the fact that his retainer 
 
 would exclude him from all business adverse to 
 
 the company, the amount claimed by him was 
 
 not excessive, and that the rule to set aside the 
 
 verdict in plaintiflf 's favor must be discharged 
 
 with costs. 
 
 Fra^tr v. Halifax and C. B. Ry. Co., 
 
 6R. <S;0.,23; 
 
 6 C. L. r., 138. 
 
 5. Attorney and client-Solicitor's lien for 
 
 costs— Satisfaction piece alleged to have been 
 given in fraud of— Held good in absence of 
 
169 
 
 ATTORNEY. 
 
 170 
 
 proof of collusion— Costs — Appeal from a 
 
 ilecisinii ii'fiiniiij,' to sot asiilo a satisfaction jiitw 
 alk'U<'il •" ''"^''' '"''^" given in fraud of tlie 
 plaint ill' 'h solicitors for tlie purpose of depriving 
 tliciii nt' their costs. I'laintitl' iiad obtained a 
 juilL'incnt iigaiust defendant, from wliicli defend- 
 ant liad apjiealed. While the ap])eal was pend- 
 iiii.', (inc K. T., without tlie knowledgo of plain- 
 titl's solicitors, for an apjmrently inade(|uate 
 consideration, obtained an assignment of the 
 juilfrnieiit from the plaintiff, and a satisfaction 
 liiiii. under the authority of which the judg- 
 ment was discharged two days later. 
 
 risters and counsel, that the charges were not in 
 the tariff and, tiierefore, not recognized liy law. 
 Per .Johnstone, J., in tiie t'ounty Court, if 
 the contention be sustained, it will revolution- 
 ize professional ))usiness in this I'rovinct;, Imt I 
 do not think tiie Fnglish rule in its strictness is 
 applical)le to the circumstances of this province, 
 where the division betw een attorney and barris- 
 ter is not recognized ; and the Legislature would 
 seem to have been of the same ojiinion, for, in 
 the attorneys' fees, they allow eounsol fees to be 
 taxed whicli are taxed for the attorney, and 
 cainiot be considered in the light of honorari- 
 
 It did not api)ear that there was any collusiim j ums. The Knglish rule, as I apprehend it, is, 
 fin the ])uit of the plaiutiH' and defemlant to i that a barrister cannot maintain an action for 
 (l(']irive the solicitors of the former of their j remuiu'iation for advice or advocacy in matters 
 
 of litigation, but this docs not a|)ply to matters 
 unconnected with anil not ancilliary to litigated 
 business. 
 
 Motion ef n/. v. ninniaii, '2 R. & ('.., 102 ; 
 
 1 C. L. 'W, G(j.3. 
 
 Hilil. that tlic ajipeal must lie dismissed, but 
 in vii'iv iif the pccidiur initure of the eircum- 
 slanucs v.ilhout costs. 
 
 MiFar/iiiii V. Siii:ih, 7 I!, vt (1., .")41 ; 
 SC. L. T., 04. 
 
 0. (hose ill acdon Assi$;niiiont of -No- 
 tice of- 'Last place of abode — //> /</. that where 
 
 the debtor was an attorney, that a notice of ],y y\ ,^ jj,,,, f„(. ||jj, 
 i.-siiinnuiit oi' the debt served u))on him by 1(miv- 
 ini: it al his (iliicc instead of "at his last ])lace 
 (if iiboilr. " the words u.sed in the Act, was with- 
 in till' sjiirit of the Act. 
 
 O'Connor V. 1I'm/,s .-{ X S. 1)., 71. 
 
 ». ('0lll|)laint against — A complaint was 
 mailc aiiaiiist .M., an attorney of the Court, that 
 a pcrsiiii named l'\, havinj; been bi'onght befuie 
 t'. and S.. .justices of the Peace, under the 
 Insdlvcnt law, M., who ajipeared as attorney 
 
 9. Costs— lien for costs- On a nioti<m on 
 behalf of plaintilf under the (iaruishee Act for 
 an attachment of all debts due the defendant 
 costs was S(;t uj) by the 
 attorney who had enteied the judgment for the 
 defendant against ^I., but no notice had been 
 given by the attorney to M., nor had any effort 
 been tr.ade by him to secure his costs. 
 
 /Ic/il, that the claim of the attorney could 
 not prevail over the attachment. 
 
 Cork-v. Ji/U'^, 1 R. & v., '2m. 
 
 10. Power of, to refer to arbitration— 
 
 Power to consent to extend time for making 
 award -A I'ef'erence was entered i:,to, .signect by 
 fdf v.. agreed to carry out an arrangement by (1,^ K^'coi-der of the City of Halifax au'l the at- 
 which 1'.. on condition of receiving his dis- torney of plaintiff, ami made a rule of Court, 
 cliaigo, a^'rced to give the creditor a warrant of ^yhereby the matters in disjuite in the action 
 
 attorney, to enable him to enter up a judgment 
 in liic Siipienic Court to bind aiiy property he 
 (F. iniiixht then have. It was alleged further, 
 that the warrant and judgment were to be 
 I'liCDnlcil bet'ori! the discharge took etl'ect, but 
 thill, aftti' the discharge, and befoie the judg- 
 ment could be recorded, M. recorde<l a deed of 
 all the real estate of F. to P., and also recorded 
 a bill of Side of the ))er.soiuil jji'operty of F. to 
 liinisi'lf. There b'ing conti-iidictory affidavits, 
 tlie rule was discharged with co.sts. 
 
 In re C. K. Mor-<r, 1 N. S. D., .S88. 
 
 8. Fees of barristers— English rule— in 
 
 an action for an account due plaintiffs for pro- 
 fessionid services, as solicitors, attorneys iind 
 barristeiM, one of the grounds of defence was 
 that the claim was for services rendered as bar- 
 
 were left to two arbitrators niimed, and a third 
 to bi' by them chosen, the award to be made on 
 or before the 1st day of May, or on such fiu'ther 
 or ulterior day aa the said iirbitrators, or any 
 two of them, should from time to time indorse 
 on the order. Two extensions were indorsed by 
 two of the arbitrators to the 1st July and the 
 1st September respectively, and on the .'Ust 
 August a further extension to the Stli .September 
 was indorsed, signed, not by the arbitrators, 
 but by the Recorder and the plaiiitifl'"s attorney. 
 In the awaril, which was made on the 7th Sep- 
 tember, the arbitiators set out that they had 
 considered the matters referred to them under 
 the annexed rule, " and the indorseinents 
 thereon." 
 
 Jleld, on a motion to set aside the award, that 
 the Recorder, as tlie attorney of the corjioration, 
 
171 AUCTION. 172 
 
 hail power to enter into tlie reference, but /<f>" some of tlie lotH nnnonnueil in presence of two o' 
 
 Young, C. J., DesRiirres ami McDonald. JJ., the defendants, tliat if any one wanted to Ituy he 
 
 (Weatherl)e, J., (//.-I* «^//(.'/). tiiat tlie last enlarge- should come to liis otKce anil lie would lie pre- 
 
 nient not having lieen made l>y the arhitrators, pared to treat for the purchase of the iKilaiicc 
 
 an reijuired liy the rule, Init by the attorneys of I'laintiflT purchased a lot at private sale from tlic 
 
 the parties, was invalid, and that the assent of auctioneer, and a memo, of the transaction was 
 
 the ariiitrators thereto could not give them juris- signed liy the auctioneer and the purchaser, 
 diction; //'/• Young, (.". .1., and DesHarres, J., //iV^/, that even assuming an acijuiescencf of 
 
 that there hud been no waiver of the irregular- the two defeiuhints who were present at the 
 
 ity, as nothing was done by the parties in the invitation given by the auctioneer, binding iipon 
 
 matter after the 1st of September; /« c Mc- themselves and the other defendant, yet a.s tiwt 
 
 Donald, .1., that the last enlargement was a invitation was only to come to his oHice wliere 
 
 void act, and couM not be waived. he woulil be prepared to treat as to the balamc 
 
 Oaken V. Tht'Citij of Halij'ax, 1 R. & (i., 98. of the lots, the ac(|uiescence tlid not give liim 
 
 Oil npiical to the Siqirdii,- Court o/Cniiada, 'i"y authority to bind the defemlants l.y a pii- 
 
 //»/(/, reversing the judgment of the Supreme ^'^ *"' *"' ^'' 
 Court of Xova Scotia, that AJiere the parties, , ^^»'' '■- l'm'r<f»'., 1 R. & C, .Vi. 
 
 through their rcs])ectivc attorneys in the action, 
 consent to extend the time for making an award 
 
 under a rule of reference, such consent docs not 2. Deposit - RCCOVerj' Of— A purcluispv at 
 operate as a new submis.-iion, but is iiii enlarge- 'm auction cannot recover the deposit <iii his 
 ment of the time un<ler the rule, and a coiitiiiu- "wn refusal to carry out the contract, 
 ation to tlic extended period of the authority of Ji/acl,- v. (.'ismr, •_' Tliom., 157, and 
 the arbitrators, and therefore an award made Omy v. Whitman, 2 Thorn., 1,">7, followeil. 
 
 within the extended period is an awar<l made Liiiilxinj v. Zirlrka; 2 N. S. 1),, KWI. 
 
 under the rule of reference, md is valid and 
 binding on the parties. j 
 
 2. That the fact of one of the parties being ' 3^ AllCtlOlICCP - liability Of- Where an 
 a iminiciiial corporation makes no diliereuce. auctioneer received an article with .■istiuctic.ns 
 
 .1. Tlii.t in Nova Scotia, where the rule iim. „„t j„ ^^.n jj ,„„,^.,. ,^ ^.^,.^,^4,, p,.;^,^^ /„/,/_ ,|,,,t jf 
 to set aside an award specifies certain groun.ls j^^. ^^.jj j^ f,„. ,^ j^,^^ ^,„„ ,,^. ^^.jjj ,,j. i;,^,,!^, j„,„.j|,^, 
 of objection, and no new grounds are added by ,,,|,„j ^\^^. ],,^j, 
 
 way of amendment in the court below, no other j^^^^^„ ,. chumhrlaiii, 1 Thom., (1st VA ), .I; 
 ground of objection to the award can be raised /.2„|) j.;,] j 7 
 
 on apjieal. 1 
 
 Oah- V. Thi City ofJIulifax, 4 S. C. I!., ()40. I 
 
 4. PuflTcr— Employment of-Sult for spe- 
 ll. Salaried-Costs— The Ordinances of the cific performance— Tiie fact of pullers Idiig 
 City of Halifax authorized the Council to ap- eniploj'ed by a vendor at a public sale of a 
 point a Recorder at a salary in lieu of all fees number of lots, although none were proved to 
 for services, and made it his duty to act for the ' have bid on the particular lots which tlic vendee 
 city as counsel and attorney. agreed to purchase, was lield to be a good gnnind 
 
 Hill, that notwithstanding the Recorder was of answer to a bill by the vendor for spucitic 
 a sal iried officer and could not have taxed costs performance ; and a Court of Equity, in -such a 
 against the city as between attorney and client, ease, instead of requiring dofeudant to prove 
 the plaintiffs were entitled in a suit in which that some of tiic orgaiiizfil putters had !>idon 
 they had succeeded to tax his costs as attorney ' the jiarticular lots, miglit '-ell call upon the 
 against the defendant. plaintiff to prove that none had lad or been in- 
 
 The City of Halifax v. Homaiix, 2 R. & (i., 271; structed to bid thereon. Even though defend- 
 
 I C. L. T., 708. ant sign the conditions of sale, a Court of Kiiitity 
 will not necessarily compel him, in a suit for 
 
 specific perff)rmance, to complete his purchase, 
 
 where a mistake made by the plaintitl' or liis 
 AUCTION. agent in plans circulated and used at the sale 
 
 had misled and prejudiced him, but will leave 
 1. Auctioneer — AutilOrlty of— An ai c- the plaintiff to his remedy in a Court of Coin- 
 tioneer was instructed to sell land in lots by mon Law. 
 auction for three defendants, and after selling \ Jennings v. Hart, 1 R. & C., l"- 
 
173 
 
 BAIL. 
 
 174 
 
 AVERAGE- 
 .S(c INSURANCE. 
 
 AWARD- 
 fl,e ARBITRATION AND AWARD. 
 
 BAIL. 
 
 1. Appeal Ball -May be filed without 
 
 notice Must justify— When— In taking out 
 rules to set aside verdicts, the bail may 1)e tiled 
 without notice, l)iit must justify when they 
 enter into the recognizance, — tlie justification 
 may he oral liefore the Judge or Prothonotary, 
 iiuil wlieu made sliould he noted in the recogni- 
 zance. The justification may he dis])ensed with 
 liy tiie opposite party, and the substitution of 
 one hail for two may he in like manner assented 
 to, anil no notice of such bail having been given 
 shall he rccjuired. 
 
 Sutticient hail means substantial bail, eitlier 
 aecepted hy the opposite party or prepared to 
 
 justify. 
 
 Kochnll V. HoHs, 1 N. .S. D., 183. 
 
 2. Appeal -Insiifflclent if the words " to 
 
 respond the judgment " omitted — Where a rtde 
 was taken under the .statute to set aside a ver- 
 ilict, and the words " to respond the judgment " 
 lUil not a])pear in the bail-piece, the Court pro- 
 noimced the hail wholly insutlicient. 
 
 Forsyth v. Symonds, ;? R. & C, o\. 
 
 3. Appeal -Notice Of ball — Rule »/•</ for 
 
 new trial discharged, no notice of bail having 
 been served during the Term or Sittings, as 
 required hy Rules of Court. 
 
 Qnao-e, whether the addition of a deponent 
 is indispen-sahle to an affidavit of justification. 
 Acadia Co-o/itration Soriefy v. Frasfr, 
 
 3R. & C.,100. 
 
 i' Appeal— Objection to ball at argnment 
 
 too late— A preliminary <^bjection was taken at 
 the argument that the bail was defective. 
 
 Hdd, that muler the present system of print- 
 ed cases, the objection was too late. 
 
 I Per Rigby, J. — That as the material neces- 
 sary to enable the Coiu't to eonsidei tiie objec- 
 tion waH not included in the ease as furnished, 
 the objection was not open to the plaintiffs. 
 OcDnmon v. Jodfcy, 2 R. & C., 314 questioned. 
 McDonnell t' «/. v. MvMcMter, 3 R. & (»., 372; 
 
 2C. L. T.,605. 
 
 .1. Appeal -3rd Rev. Stats., c. 134, s. 107 
 
 —Does not extend to the Crown— Ciiap. 134, 
 3rd Rev. Stat., "Of l'le»,ding8 an.l I'ractice in the 
 Supreme Court," sec. 197, in reference to the 
 filing <»f bail in cases where the Judge has re- 
 fused a rule nm for an appeal, and an appeal is 
 taken under the Statute, is confined in its ope- 
 ration to jH-ivate parties, and does not extend 
 to the Crown. 
 
 Qiwen v. Rycrson, 2 N. S D., 276. 
 
 0. Appeal -Shareholder ball In an action 
 
 against Company — Barrister, not practising 
 — Failure of bail to justify — May be amended 
 
 — Application was made to set aside a bail-piece 
 entered into on behalf of defendants, on an 
 appeal, on tiie groumls, — • 
 
 Fivft, That one of the bail was a defendant in 
 the action ; 
 
 Scroiifl, That he was a barrister and attorney 
 of the Court ; 
 
 Third, That neither of the bail had justified 
 in an amount double tlie amount of the verdict. 
 
 Held, as to the first objection that the fact of 
 one of the bail being a stockholder in the defen- 
 dant Comijany did not incapacitate him from 
 becoming bail. As to the secemd, that not hav- 
 ing practised for nearly half a century, the 
 objection did not apjdj' ; and lastly, that the 
 third objection could be cured by amendment, 
 which the Court had power to grant. 
 
 Trtmnine v. Halifax Gas TJijht Co., 
 
 3N. S. D.,135. 
 
 j 1. Appeal from County Court — Defects 
 
 I in bond — Irregularity in return of execution — 
 I Plaintiff sued in the County Court on a bail- 
 I bond given by the three defendants, who plead- 
 j ed and proved that the execution had been 
 returned before the expiration of the sixty days 
 within whicii it was made returnable. The 
 County Court Judge held that this was a mere 
 irregularity, not touching the merits, and could 
 not be taken advantage of by plea, and he gave 
 jiulgment against the three defendants. De- 
 fendants appealed, and in the appeal bond 
 recited the judgment as a judgment against two 
 of the defendants. 
 
 Held, that the appeal was irregular, and that 
 a motion was properly made in the Supreme 
 
175 
 
 BAIL. 
 
 176 
 
 Court to sot it aside, tliougli the papert; had 
 been certified and the bond approved by tlie 
 County Court Judge. 
 
 Waf'<oii V. Jfriit'i/, .S R. j;- a., 1.31. 
 
 8. Bond conditioned to render defendant 
 
 to Sheriff ot" Halifax — Execution placed in 
 hands of Sheriff of Annapolis where venue of 
 action was —Held properly so — Amendment — 
 Indorsement of execution — Tlie original plain- 
 tiff, wlio diu<l after the eoninienceniciit of the suit, 
 the action i)oing continued bj' his adniinistratois', 
 issued at Ainiaj)olis a writ of capias against one 
 Cutler, returnable at Annaj)c>lis, directed to the 
 Slieriir of (,|ueens or any other Slieritf, under 
 vliich Cutler was arrested by the .Sherifl' of 
 Halifax County, in his bailiwick, and lield toliail, 
 defenilant becoming surety, and tlic condition of 
 the bond being that (^utler should be rendered 
 into tlie custody of the Sheriff of Halifax. 'I'lie 
 declaration in tiie suit against Culler was on a 
 bill of exchaiige draw n by Cutler and others and 
 dishonore<l, witli particulars ajjplicalilo to such 
 a count, togethei' with common counts laying 
 the indebtedness in Cutler and said others, but 
 after issue joined common counts were added, 
 laying the indebtedness in Cutler mily. .uid jiar- 
 tieulai's accordingly. .ludgnicnl \\a.> . •■overeil 
 against Culler, and an execution issued direi'ed 
 to the Sherilt'of Annajiolis in the usual form, but 
 without any indorsement especially directing the 
 Sheritt' to take the body. Xo execution was 
 placed in tlie liandsof tlie Shcrill' of Halifax, and 
 the .Slicritf of Annapolis, after holding the execu- 
 tion sixty (lays, returned iioi/ o/ inn iiIh". 
 
 IIi/il, tlmt tlie cx(Hnition had hccn i)r(>])eily 
 placed in the hands of the Sherili'of Annapolis 
 County, in which the venue in the original actimi 
 ■was laid, and not in Halifax, where the arrest 
 was made ; and that the objection as to the 
 amenilmcnt of the writ couhl not ])revail, as there 
 was nothing before the Court to show the nature , 
 of the del it sworn to in the afiiilavit on which' 
 the cajiias issued, or that the plaiiititV hail not i 
 recovered on the declaration as originally framed, [ 
 but that in order to enable plaintiH'to liringaetiou | 
 against the defendant as bail, a writ should have ' 
 been placed in the Sheritrs hands with instruc- 
 tions indorsed to take the body of the princij)al. ' 
 (lartvM V. lilnrl; .S \\. k ('., I'.'!). ■ 
 
 ft. Bond given by i)risoner with surety to 
 
 obtain jail limits Cannot be transferred by 
 indorsement as a bail-bond—The defendant j 
 having been arrested on an execution, obtained j 
 the jirivilege of jail limits, as fixed by an order! 
 of Court, under 4th H. S., c. 'J"2, s. 7, and gave a [ 
 bond witli a surety to the Sheiitf, who assigned j 
 it to plaintitf. I 
 
 Held, that the bond could not be transferred 
 by indorsement as a bail-bond so aa to vest a 
 right of action in the tran.sferee, and that four- 
 teen days' notice of action must be given by the 
 assignee. 
 
 (Jiianx, as to legality of the bond. 
 
 Jioiic V. Pnmhnjasl, 1 R. & (i., .'isj. 
 
 10. Bond instead of bail-piece.— Rule m4 
 
 under the statute for a new trial discluirgcd on 
 the ground that a bond was filed instead of a 
 bail-piece. 
 
 McKi'.ium v. Tracy, ] R. & (i., ,'i'jL'. 
 
 41. Bond instead of bail-piece on certi- 
 orari — ('■ j/inmrl to remove a convicti'in for 
 violation of the License Laws in the City of 
 Halifax (|uashed on the ground that a liond liud 
 been tiled instcail of a bail-piece. 
 
 Till Ciiij of Han fax v. Lmke, •_' R. & (!., 14i 
 
 12. Certiorari— Bond Breach of Condi- 
 tion—Action for— Failure to prove breach- 
 During the ])cnding of a cir/iorari to remove ;i 
 conviction of the ilefcndant for .selling liiniois 
 contrary to law, defenilant was again convicted 
 and lined -SlJ'i.SO, inclusive of costs, which was 
 reduced below .S-0 by part paj'inent, and action 
 was brought ill the County Court tor tliclial- 
 ance, on a bond conditioneil that dclciidunt 
 would not sell " during the ])cndency of the ap- 
 peal'" from the first conviction. 1'here was no 
 evidence that he sold li(|Uor personally, Imt it 
 appeared that lif|Uor had been sold on the pre- 
 nnses by a woman who was not shown to be 
 the defendant's wife, child or .servant. 
 
 llihl. that the breach of the condition of tiie 
 bond had not 'oeen ])roved. 
 
 (/»(/(/•(', whether even a sale ])rovcd to liiivc 
 been made by defendant's wife, child or servant 
 would be a breach of the conilition. 
 
 Queen v. MrKeir.lr, 1 R. & (;..4SS. 
 
 1». On Capias -Condition in Bond Dis- 
 charge of surety — A bail-bond was taken upon 
 a ea])ias issued out of the Magistrate's Court 
 conditioned for the a)ipearance of the defendant 
 in the sint or his authorized agent. The attor- 
 ney appeared with a wiitten authority aa "the 
 authorized agent." and the jilaintilf obtained 
 judgment upon which an execution was issued 
 antl returned iinii (-7 inri iitii-i. In an action 
 against the surety, 
 
 Ihlil, affirming the dt^cision of the C"unty 
 Com't that the surety's obligation had licea dis- 
 charged by the appearance of the agent and 
 that plaintiff could not recover against him. 
 
 \\'ri;i/i' V. Neeres, 3 R. & C, 563. 
 
177 
 
 BAILMENT. 
 
 178 
 
 BAILMENT. 
 1. Bailee, may maintain action against 
 
 wi'ongdoer — Plaintiff was ontriisti;il witli the 
 possession of oertiiin goods ))y the ownur, who 
 WHS aSout CO leave the Province, to he forward- 
 ed to h in. Witli this intention the goods were 
 sent to a wharf to lie slii, jied l>y a vessel then 
 lying there, l)Ut theie was no formal delivery to 
 the master or any one on hoard. The defend- 
 ant, who showed no justification, eaused the 
 goods to he taken and sohl. 
 
 //'/(/, tliat until the assent of the master of 
 hail-pieee not a sufficient answ ;r to a plea of ^i,^, ^.^,^, ,,i ,,, ^.^^,,^.■^yo the goods was siiown, they 
 
 14. In criminal matters -Principals can- 
 not, accessories it ay be bailed — Prisoners 
 cluuved with murder cannot be admitted to hail 
 exoc|)t undei' extreme circumstances, — other- 
 wise with accessories after the fact. 
 
 (^hl(<:^l V. Mnr/ihy iJ a/., James, 15S. 
 
 15. Order to hold to ball Affidavit for 
 
 and setting aside— X' > AKKEST. 
 
 10. Record must be filed Production of 
 
 mil li'l fn'oril — No execution issued before 
 action— In an action on an aih'ged recognizance 
 lit liail. set out in plaintiti's declaration as 
 ciitcri'd into hy the defendant-^ to rcspund a 
 juili'iucnt to he finally given on a rule ;//>/. taken 
 mictcr the Stiitute vindcr the formei- practice, 
 the ilrfcnilauts admitted tile making ni the hail- 
 ])ii'rc. wiii.'h was signed hy them lieiore R. T. 
 W., as Coiuiuissioner. admitted to ))e such, \v iio 
 iilsii look tlu'U' alhdavits of justiticalion, and. 
 liiiiii; Protliouotaiy, had tlu'iu tiled with liic 
 iiuil-piece, hut the recogiii/ance was not ivduced 
 til writing, nor did it ap|)ear u])on any record of 
 the t'oiM't. 
 
 IK'tVudanls pleaded, among other things, that 
 tiu'ic was no record of the alliged recognizance 
 of liail reuiaiuing in the Court, as it was set out 
 ill the |)laintilVV declaration. 
 
 /.'■A/, that the ])rodiictioii of the liail-piei-e 
 alone, worded "to ]-esj)oiid the judgment to lie 
 tiiiiilly given hcieiii on a rule »/•-■/ for a new tiial 
 niiili'i' the Statiiti\" was not sutlicieiil [iroof of 
 tlif plea. 
 
 It lieiug ailiiiiueil that no execution had liecii 
 i^sllell, 
 
 Ifild, (-(/mi. that it defendants could avail 
 tlii'iuselves Hi' that defence. ]ilaiiititi's ciuild not 
 I'L'cover; hut that the defence \\as not ax'ailalile, 
 nut liaviiig heeii pleaded. 
 Mri;.. .1 al. V. l',,-l.-:ii-^>f(tl., -JO \. S. H., 
 
 (s i;. .V (i.), 1.-.4: 
 SC. L. T., .•!7.'). 
 
 remained in the possession of the plaintiff as 
 s|)ecial owner, so as to enable liim to maintain 
 an action against a \Mongdoer. 
 
 Sn,i/„r</ V. noir/i.-<, :! X. .S. 1)., ;«)4. 
 
 2. Gratuitous Misfeasance or ncjsllgcnce 
 
 — Plaintitl' and ilefemlant held notes of 1). S. tS: 
 Co., of I'liiladeljiliia. for .■<l(;(Xt and . ■<+()(»() respec- 
 tively. Uefoie maturity c)f the notes, defendant 
 undertook, with consent of the plaintiff, who 
 indorsed the note held by him for that ])iirpose, 
 to present the notes to the makers in Philadelphia 
 for discount, but there was no agrcen.ent e.\- 
 ]»ressed or implied for any ciiiiimissinii or reward 
 to he paid to defendant. The makers declining 
 to discount the note, defendant left them with 
 \'an H., to he retained subject to order of the 
 owie-rs. \',ui li. deposited the notes in a sealed 
 eiivelo))e in t lie Corn I'Acliange Xational P>ank, 
 lint afterwards, becoming embarrassed, fraudu- 
 lently took the ))laintitf"s note from the envelope, 
 got it discounted by the makers and a[)pr()piiated 
 I lie proceeds to his own use, and afterwards 
 tailed. Defendant ascertaining the fact of the 
 failure, or tVsiriiig it, went on to I'hiladclphia 
 and secured his own note. 
 
 }/i/il. that defendant, lieing a niandataiy, or 
 bailee without rewaril, had not been guilty of 
 such negligence or misfeasance in dealing with 
 the i)laiutitV's note as to render him liable in an 
 action for the loss resulting from \'an If. '.s breach 
 of trust, thefts being no evidence that the advan- 
 tage he gained in saving his own note resulted 
 n. Heforence to arbitration, discharges from collusion witli Van II., and the evidence 
 
 bail -Whi'ii a cause, by consent of both ))arties, 
 
 is fffeireil to arliitration. 
 
 showing, although the fact was not brought out 
 in the pleadings, that the defendant liacl put his 
 //'''/, that the hail in the original action is own note in the same hazard with that of the 
 
 discliarged. 
 
 '''' \\ ilkius, .1. — When a inisoii liecomes 
 respnnsihle as hail, he contemplates lieing liable 
 
 jilaintilf. 
 
 Wilkins, .!., (//•<«»//»;/, that the ih'fendant, in 
 depositing the jilaintilf 's note w itli Van H., was 
 
 ttccniiliiig to the usual lej^al proceedings ; if that not acting within the scojie of his authority as 
 
 usual iiKiile is altereil, and the matter in dispute bailee, anil was liable for the conse(|Uences of his 
 
 18 left to aiiiicahle arrangoinenl. as in arbitra- act, but that, as the verdict was in U. S. cur- 
 
 tioii, the position of the bail is changeil. rency, it should be set aside. 
 
 A/lisoii V. DeMHristv/, Cochran, 1!). Ifn-ritv. Shijili/i/, 1 R. & C., 1, 
 
179 
 
 BAILMENT. 
 
 180 
 
 3. Gratnltous-Lien for repairs -A watch 
 
 was left by one Von .Sclioern witli tlie plaintiff 
 for repairs and when culled for two days after- 
 wards was not ready, wliereiii)on plaintiff loaned 
 to Von Si-'lioern a watch to lie kept till the 
 repairs were coini)lctcd. The watch so loaned 
 becoming out of repair in Von Schoern's iuinds 
 was taken l)y him to defendant for repair and 
 defendant loaned Von Sclioern another to nse in 
 tiie meantime with which Von Sclioern abscond- 
 ed. IMaintiff learning that his watch was at 
 defendant's shop, demanded it ; defendant re- 
 fused it, setting up a lien for repairs. 
 
 Held, attirming the decision of the County 
 Court, that the loan of tlie plaintitVs watch to 
 Van Scliorn was a mere gratuitf)us biiilment 
 existing during the mere pleasure of the lender 
 passing no special projjerty to Von Sclioern, and 
 that defendant couhl not set up any lien for the 
 repairs. 
 
 An order for appeal was signed by the Judge, 
 setting out a number of grounds, but the Judge 
 in his certificate left it to this Court to say 
 M'hether an aj)peal could be allowed in an action 
 of tort where the judgment was muler foi'ty 
 dollars. 
 
 Jfilil, that the appellant could not beconfincd 
 to this single ground of a])])eal, the Judge hav- 
 ing a discretion mider tiie Act of IfSTS, c. 0, s. 
 14, tf> allow an appeal on any jioint of law or 
 praetice in any matter tried or aigucd before 
 him and having granted an order setting out the 
 grounds on which the api)ellant wished to rely. 
 Mrlhnmhl V. St!v'<hii, .S H. A: C., ."vJO. 
 
 4. Hirer of property — Misuser — when a 
 
 ])erson hires a horse with a wagon seated for 
 two i)eisons and takes three, he is liable as ffir 
 a misuser if the horse die. 
 
 C(ui ji V. Airhilinld. '1 Thoiu., 4. 
 
 3. Misuser of property lent Terminates 
 
 bailment — Trover maintainable — Tinver is 
 maintainable by the owner of jjiopcrty, where a 
 third pai'ty, to whom the owner has given the 
 use of the property, has sold it witiiout author- 
 ity. The rule is, that wliere there lias lieen a 
 misuser r)f the thing lent, there is an end of the 
 bailment, and trover is maintainable. 
 
 S'lhliij V. Sihhii, '2 X. S. 1)., 3'2."s, 
 
 6. Right of bailee to hold goods for un- 
 paid purchase money — I). S. stored a lot of fish 
 with defendants, which he afterwards sold to 
 R., giving liim a memorandum heailed " R. 
 bought of 1). S." signed by the latter. R. 
 piiid half in cash, and gave S. a note for the bal- 
 ance, which w as indorsed by defendants, and 
 
 ! retired by them at maturity. R., after the sale, 
 
 : became insolvent, and plaintiff, his assignee, 
 
 , produced at the first meeting of creditors a 
 statement of as.sets, the first item of which was 
 "2.% bbls. mackerel stored at Black Brothers," 
 
 ' defendants. One of the defendants atteinleil 
 the meeting and saw the statement, remarking 
 to those present that h" was not aware of any 
 fish of R's stored witli them, but he gave no 
 such intimation to the assignee or inspecler, 
 
 [ and, long after, the defendants made a claim on 
 the estate for the amount of tlie note, stating 
 that they held no security, and a dividend was 
 paid them. The assignee having brought au 
 action of trover for the fish, lecovered a ver- 
 dict. 
 
 //(/(/, that the defendants had no right to re- 
 tain the tisli, no claim of lien having been .set 
 up, and that by bedding the note ami claiming 
 f(n' the amount on the insolvent estate. t!iey 
 would have lost all right to retain possession of 
 the fish, if they had ever had any sucli right. 
 Hart, A'^-'iijiiii , v. Troop it n/. , 2 R. & <i., ;<•")! ; 
 
 •2C. L. T.,9.). 
 Oh (ip/H(i/ to till Sii/iri nil Court of Cninnln, 
 //'/f/. .Strong, J., (II--1I iitiiiij, that tlie ajipel- 
 lants having failed to prove the riglit of piopiity 
 in themselves, upon wiiicli they relieil at the 
 trial, the respondei.t had, as against the aiipil- 
 lants, a right to the immediate possessinn of tiie 
 fish. 
 
 . 2. That S. hail not stored the fish willi ap- 
 pellants by way of security for a debt due by 
 him, and as tlie appellants had knowledge iliut 
 the fish sued for were included by the iiisulvcnt 
 in the statement of his assets, to wliicii state- 
 ment they made no objection, but proved against 
 tlie estate for the wliole amount of iiisdlvent's 
 note, and received a dividend theieon, t! ry 
 could not now claim the fish or set up a claim 
 
 j for lien thereon. 
 
 ! Troop V. Hart, 7 S. ('. I!., .'d'.'; 
 
 j -JC. r.. T.,i.'.-d. 
 
 1 
 
 I. Warehouseman — Respo.sibility of- 
 
 W'heu a warehouseman retains for a coiisiilcialile 
 sjiace of time a delivery order in his possession, 
 without giving notice to the party sciuliiig it 
 that the property is not the property of the 
 i i).irty by whom the order is made, he will be 
 I ])ersouallj' responsible for the goods contained in 
 such delivery order. Wilkins, J., ilis.ii iitiinj. 
 
 Pir Haliburton, C. J.— There is no similarity 
 ; between the jireseiitatiem of a bill of exchange 
 I for acceptance and this case. In the cour.e of 
 I business, the bill of exchange must be returned 
 I to the party presenting it ; but that is not the 
 I case with an order upon a warehouse keeper to 
 
181 
 
 BANKS. 
 
 182 
 
 deliver gnoils in his custody. If he keep the 
 
 order witiiout giving any answer to it, the party 
 
 wlio sent it has a right to conclude tliat he has 
 
 iriiide tiie transfer of the property, and tiiat he 
 
 retains tiie order to show his authority for so 
 
 dding. 
 
 Tiriiiiiiij V. Oxil y, "2 Thorn., 18. 
 
 B.INKS. 
 
 1. .isspssmcnt of-Act inrorporatins town 
 
 of New Gla.'jgow -Acta 1875, e. 49, ss. 46 and 
 52 -4th Rev. Stats., c. 21, s. 67 -Ccrtiumri— 
 The .\ot of Ineorporation of tlie Town of New 
 (llasirmv, in section 4(>, provided titat the corpo- 
 riitiiin sliduld assess, collect, and pay over what- 
 ever moneys weie re(iuired for jtooi'-rates, ami all 
 otlier (except sdiool) rates, and should have 
 wit'iin tlie Town all the pf)wers' relating thereto 
 vested in the ."Sessions, (Irand Jury, Town Meet- 
 in;.', etc. The ."v2d section empowered the Town 
 CiMuieil to make liy-luw.s ami rides touching all 
 iniiliers within their authority, including rides 
 fur regulating the mode of assessment and levy- 
 ing the same, whicli hy-Iaws, when approved I)}' 
 the Coveinor-in-Coiincil, should have the force 
 (if law. Tlie l>y-laws so made dctineil personal 
 pniperty fur the purposes of assessment, so as to 
 ciiMiprelieiiil all goods and chattels, ami proviiled 
 f(ir tile trial of appeals from the as.sessmeiit. 
 They rnntained a further provision, that the 
 mil. when finally pas.sed, should he valid, ami 
 liiiid all parties concerned, notwithstanding any 
 ilofeet nr error coinniitteil in or in regard to it. 
 riie Rink of Xova .Seotia, doing husine.ss at 
 Xowtdasgow through a branch, appealed from 
 its ;issessmeiit, and the appcil having heen heard 
 in the iiKpile provided ))y the hylaws, the assess- 
 ment was eontirmed. and a warrant issued, in 
 piiisiianee of which a levy was made on hooks 
 'if iinciiuit of the hank, ami on a niimlier of 
 praniissdiy notes, the ])roi)eity of the iiank. 
 rile li.iiik lia\ ing thereupon lu'ougiit the assess- 
 inent and warrant up hy rerfiomrl, 
 
 U.1,1. that see. (iT, of cap. '21. 4th H. .S., did not 
 apply to the ease, heing conlined to iioiiiiin- to 
 pnji'ceilings of the .Sessions, touching rates, tliat 
 the levy on promissory notes v as good, that the 
 provision of the hy-hiws making the assessment 
 tiuid and liiuding, notwithstanding defects or 
 errors, did not prevent tlie Court from review- 
 ing it under writ of cirtiomri, ami tiuit the 
 '•nilomrl would lie in such a case if the atlida- 
 vit iliselosed sutiicient grounds, the 8Coi)e of tiie 
 writ lioing wider hero than in England. 
 
 The Court, after ruling as above, quashed the 
 
 I'l-rtiorari, without costs, sufficient grounds not 
 ' having been shown for setting aside the assess- 
 ment. 
 
 In rii Axxi-ismint of the Bank of Xova Scotia, 
 by the Toirii of Xew Ola^jow, 3 R. & C, 32. 
 
 2. Assessment of— Personal chattels, defl- 
 
 i nitionof— P>y cluipter 4."), H. .S., (,Srd series,) "Of 
 
 County Assessments," section lo, it was enacted 
 
 I that the words "personal estate " and "personal 
 
 ! property, "for the jnirpo.ses of the act, should be 
 
 I understood to include all such goods, chattels, 
 
 and other property, as were enumerated in 
 
 .Sehedule A, thereto annexed, and no other, the 
 
 only portion of .Schedule A ajiplicable was as 
 
 f<dlows : "All personal chattels of every kind 
 
 and description at their actual cash value." 
 
 The IJank of Yarmouth having been assessed 
 under the above enactment, as ]ieisonal estate, 
 for.S2(».(((M(, the average amount of cash on hand, 
 and for .S10«»,(HK> cash lent fmt, 
 
 Ifihl, that the bank was liable to be a.ssepsed 
 for the average amount of stock on hand and 
 the value of personal pi'operty, exclusive f)f 
 stock, but not for tiii' amount of cash lent out. 
 The phrase " personal chattels " means only 
 such things iis animals, household stutl', money, 
 jewels, corn, garments, and everything else that 
 can be put in motion ami transferred from place 
 to place, hut does not include clioses in action, 
 notes of hand, bonds, and securities for money 
 loaneil or due, which may be realized u[)ou by 
 action or suit, or otherwise. 
 
 Ill /•( Thi liniikaf Ynniioiith,-! X. S. J)., 308. 
 
 3. .Assessment of -Tax on Dominion notes 
 
 -Authority of Local Legislature to impose — 
 The Local Legishitiire has authority to enact a 
 law imposing a tax on the Dominion notes held 
 l>y a liaiik as portion of its cash reserve, under 
 the dominion .\ct relating to " Hanks and Hank- 
 ing," (34 Vic, c. ■"), s. 14), and un<ler the liy- 
 laws of the town of Windsor such i)ro])crty «as 
 held to be propeily included by the assessors in 
 their xaluation. 
 
 77(1 Toiri) of W'iiiil.iiir V. Thi Coniiin m'n/ 
 
 hunk of Wliiihor, 3 R. & (J., 420. 
 
 4. Calls - Notice -tircular -A call was 
 
 made by the Directors of the ])laiiitil1' bank. 
 Hy the resolution providing for the calls, the 
 mailing of a circular to each sharehohler was 
 made an essential part of the notice. Tiio 
 cashier swore that circulars liad been prepared, 
 printed in part, and that it was the tluty of the 
 junior clerk to till tiiem up and mail them. 
 The clerk swore that he had tilled them uj) and 
 mailed them, but, on eross-exiiiiiination, said lie 
 
183 
 
 BANKS. 
 
 184 
 
 liad not i-fiul the print, iiiul did imt know wliiit 
 it was about. Defendant diil not deny tiiat lie 
 had received a cirfidiU'. Tlie Couit having 
 power to draw inferences cf fact as a jury, 
 found tiiat nolii'es had l)een mailed in sutheieiit 
 tiiiio, as re(|uireil l>y the Ael. 
 
 Till Jiftiil: o/ Lii; r/iiio/ v. /lii/iloir, 
 
 .'{ i{. it t'., '2m. 
 
 5. (alls Time Tor making (oniputa- 
 
 tion of intervals - Declaration .\m art inn was 
 lirought liy the plaiiitilV h;iid\ as assi;:Mee. undei- 
 tile Insolvent Ait of 1S7.">. of the 15;ink of l.,ivei- 
 ])ool, auainst tlu' deftudanl . foi' a call of MMI |icr 
 cent, on his stock in the said Hank of Livcipool. 
 The only evidence of the niakinn of the call was 
 a noti<'c jiiililishcd in the dn-.dti of the 17th of 
 tiannaiy. and following issues, as well as in the 
 local papci's dated the HHh of .January. Iiy 
 which a nuniher of calls were ni;ide. payalilc at 
 inter\ als. 
 
 ll'l.l. that Ihe calls .■ould not all he Ic-ally 
 made al <oie lime, aiirl none rould le,L'ill\' he 
 made lint within ten days after the i\|)iration 
 of six months from the sus])ension of paytaenl 
 liy the liaid<. And ftnther, that in com|)ulinj,' 
 the statutoiy intervals lictuccn <alls. tlu' time 
 must he rei'koned exclusively of the day on 
 which the ])ri'vious call was ])ayal>lc. 
 
 !'■ r Wciitlicrlii'. .1. 'I'lial the insolvency oi 
 the IJverpool |>aid< ai\d the iusnflliieiicy of 
 as.sets should have heen allcLTed, anil fuilhcr. 
 that a eerlilicate of the County Court .ludLtc, 
 after the allegeil niakinu ami noliei' of the calls 
 a])))rovin,!.of the plaintilV liaidi so actini: through 
 their cashier, was not a siitlicici.t conipliancc 
 with sec. (i. eh. ;{I. of .'i!» Vic. 
 
 /'. /• .McDonahl, d. That the declaration was 
 sullicicnt. hut the calls were irrcLTular for the 
 reasons a hove stated. 
 Th' liiiiik III' Xi'ra Sriitiii. Ay-^iilim V. I'liflu x, 
 
 4 l^ \- (I.. -J!!,-.. 
 
 dator rested wholly with the Court. Weatherhe 
 and Smith, .J. I., ilis.ii iiliini. 
 
 Ill Till Jlaiik of Lirurjioo/, (i I!, it (;., ."nil. 
 
 On np/iia/ to flir Sii/irniii Coiirl of ('minihi, 
 Jhlil, that sections •_' and I! of the Winding- 
 up Act. 47 N'ic, c. .S!», providing for the wind- 
 ing-ii)i of insolvent companies do not apply to 
 hanks, Imt an insolvent hank whether in process 
 of liiiuidation or not at the time it is sought to 
 hring it under the \Viuding-U[) Act, must he 
 wouiiil up with the preliminary proceedings 
 provided for hy ss. !MI to !(»■_' of 4.'. Vii., c. •.':), 
 as amende<l hy 47 \'ic.. c. .'!!>. ."Strong iiiul 
 (I Wynne, .1.)., <//-<'/,//»;/. 
 
 Miitl \. Till ll'iiit (>/' Xiii'd Sriihn, 
 ill n llfiiil: iif l/'i'i'iiKiii. I i S. C. 11. , lui). 
 
 t. >l»ii(>} deposited Dranii out impro- 
 perly Liability of party relea-sing bank — 
 Defendant. D. McD., being part owner, nilh 
 l)liiintill'aud the other defendants, (.f ,i niui|iif, 
 was authori/eil by the othci' owners to sell lirr. 
 and clid >o, depositing plaintilV's share of the 
 jiroifcds to his own credit, in the I'ictou I'.aiik. 
 I'laintilV wrote to one S. C. in tlu'se teiin> :— 
 " I want yr)H to put my share of the iiiolicy in 
 the bank, to my ere<lil. I have written |).. 
 (mi'aning ' ). Mel).), stating that 1 have .lutliur- 
 i/ed yon t i ilo so." S. C. ha<l, before llii- Klti.T 
 came to h m. drawn the money from the hank, 
 the man.igcr having ailvauced it to him on liis 
 owiichc(|uc: b\it .lefendiiut. D. Mc|).. npnn the 
 letter licing shown to him by S. ('.. signal ii 
 release to the bank from any claim on acconii? 
 of the |)ayiuent of the inoiU'y to S. C. 
 
 //.A/, that D. McD. was not justilieil in re- 
 leasing the bank ; that in doing so he assenu''! 
 the liability which the baidc had incurred ''V tlie 
 unwariantable payment to .S, C. of the nflU'V 
 )ilaceil ti. his (.McD's) credit, and that |iliintlff 
 was entitled to a decree for the ainotml of his 
 share de])osited in the baid<. 
 
 /i'i;/;/v V. MiDuiinlil il III.. I!. K. I' • IT. 
 
 5. Insolvent - Winding up- Xotieo of 
 
 Acts 1S82. e. 23. hs. 99-102 (Dom,) Notice of 
 a])plication to w ind up an insolvent baidi under 
 the DouiiiMon Act of ISS2 by publication in the 
 Caiiniln 0'n~.clli and Hiiijal (Intilti' oi tlic I'ro- 
 vince. and in twcp Halifax and two I.,iver])ool 
 papers, held sutlicicnt. 
 
 /'./• McDonald. C. J., and McDonald, J.— 
 Tlait .sections 9!> to KfJ of the Act of 1SS2 (e, 
 23, Dom.), did not ap))ly to the j)re.sent ease, 
 where the proceedings were to wind np an in- 
 corjioratod bank declared insolvent under the 
 Act of 1H7.">; and that the appointment of a liipii- 
 
 8. Money deposited in banii Wife's 
 
 separate i)roperty Use of interest by hiishaiid 
 with wife',s knowledge <i. K. Hisscl, by his 
 will, be(|Ueatlied to his daughter, Maria Mathe- 
 son t;2<KM», "for herself ami her children, i.-siie 
 of her marriage, now or hereafter living, tc l"-' 
 exempt from any ilebts or liabilities of lier 
 hu.sband, Donald Mathe.son, shouhl he frem 
 accident or misfortune hereafter becoiuo enihai- 
 rassed, w ith power in his executors to invest the 
 same at her desire in good secinities with 
 inter'»8t for her and her ehihlren's heiietit. 
 subject to a deduction of t'870 due the te.stator 
 
185 
 
 BANKS. 
 
 186 
 
 liv Doiiiilil MiitliL'tion. 'I'lio pliiiiititr, tugellifr 
 with Malla.-iiiii, luNtiitor's widow, iiinl jiiKitliL'i 
 wtit! a|i|iiiiiittMl uxt'i-utors. 'I'lio tfstiitor died in 
 ISIil. tiiiif I'l'inj; at tiiiit tiiiiL', iiiid at tlie tinii' 
 lit till' iiiakiii)4 of liio will, oliildivii of liis 
 'an!:litci' liviiijL.'. lull till' i-state was not sottli'd 
 iiMtii Sipttiiiliir. IS71, when Matlie;-on dtpositi'd 
 in tlif rcopii's Kank .^tifMIO, lieing thu lialiincu 
 (it the liirjiii'st dm: his wife after deducting the 
 aiiioiiiit due I'V him to the estate, w ith interest 
 to till' date of the deposit. In the same month 
 lie made an assignment under the Insolvent Aet 
 (if istlM. During the ten intervening years the 
 
 ai ml liail heeii used hy him in his liiisiiiess, 
 
 and fnr his family, though without the know- 
 kilu'e "1' sanction of his wife, and entries were 
 made liy him from time to time in aeeotints 
 I'ciideied to the widow (who with himself ehietly 
 manai.'1'd the husiness of the estate) of sums 
 ici'iivid as interest on his wife's legacy, ainount- 
 iiiL' ill all to the whole interest that would he 
 iliK' tlii'ieon. 'This was not authori/ed hy his 
 wife, l.ut she did not ohjc'ct to it, or ajiply for 
 tile inteii'.-t herself. Defendant Hhindress, as 
 a>siL'ni'e. having elaimed the fund deposited in 
 till' People's liank, 
 
 I[ilil. that the children took an interest under 
 the will, hut that, independently of their inter- 
 c,^t. as there was no evidence that .Mrs. Mathe- 
 .■(nn had sanctioned the use of the money hy her 
 Inisliaiid, jilaiiitill', as trustee for her and her 
 liiildrcn, was entitled toan aliioiint ei|Ual to the 
 halaiii'e of the legacy, after deducting the deht 
 line hy Mallu'soii ; hut that the assignee was 
 (lititli'd to the amount depositeil f(jr interest 
 tliiicoii, as the Court must jiresiime the ac(|iii- 
 I'si riK c nf tile wife ill the hushaiid's receipt of 
 till' interest from year to year, in the ahsence of 
 very clear evidence to the contrary. 
 11 mil' r V. '/'/(' I'm I'll '■< Hank af Halil'itx tl a/., 
 
 U. K. 1)., !»1. 
 
 9. Money paid by mistake Liabiiily to 
 
 refund Privity - R., of Varmoulli, having 
 ciiiisigiicd tish to Antigua, instructed his agents 
 totransniit jiroceeds hy cahle to the 15aiik of li. 
 N. A., in Halifax. The agents, 'h.rough their 
 clt'ik, applied to plaintitl' hank for a cahle 
 'Imft for 8;<,(KH) on \ew York, for which they 
 gave their own check, and received an order in 
 cypher to Maitland, I'helps & Co., in New- 
 York, to piiy the amount to credit of Rogers to 
 the Rank of B. N. A. The latter hank then, 
 with the con.sent of Mailhmd, Phelps & Vo., 
 communicated with the defendant hank that 
 their account "was credited with !ii!S,0(K), pay- 
 ment hy Maitland, Phelps & Co., advised from 
 Colonial Bank of Antigua, account Rogers." 
 
 The defendant hank at once charged the amount 
 to the New York agency of the Hank of 1>. N. 
 A., anil credited the amount to Kogeis oii ac- 
 count of overdue hills. 
 
 Ill /(/, that although the money had come into 
 the hands of the defendant liank owing to the 
 mistake of Hogers' agent in not tiaiisniitting the 
 money to the Hank of 1». X. -V. at Halifax, a.s 
 instructed, the jdaintitl's liai", no title to it, hav- 
 ing heeii paid hy I'lOgers' agent for their draft, 
 and not heing liahlc to letiiin the money. 
 VVii Coloiiiul Iktuk v. Tlu Hxfhtimii Jtiiiik, 
 
 .-. R. 1^ (i., --MS. 
 
 Oil ii/ijiiii/ III Ihi I'riri/ Ciiiiiifil, 
 
 The plaintitl' hahk, liciiig under instructions 
 
 from R. to remit his moneys to a hank at JIali- 
 
 fax, through the mistake of it.s agents, paid 
 
 them to a New York hank for transmission to 
 
 the defendants, who, on being advised thereof, 
 
 debited the New York hank, and credited li. in 
 
 account with the amount thereof; and lieing 
 
 i afterwards advised of the mistake, claimed to 
 
 I retain and use the moneys in reduction of R.'s 
 
 account with them. 
 
 j III III, that on being advised of the mistake, 
 the defendants were hound to repair it, and 
 I that the plaintitl' bank had a suliicieiit inlerest 
 I in the moneys to recover them as moneys re- 
 ceived to their use. 
 
 ('uloiiial /iaiik v. Exiliaiiiji Hank of Yannonlh, 
 L. R. II App. Cas., S-t. 
 
 lU. Qiioriini of Baiili Directors Power of 
 
 to make calls lly the Dominion Act of IS7I 
 (.■{" Vic.,c. ."), s. .'{'J), not less than three Dircctor.s 
 were constituted aiiiioriim for the transaction of 
 business. IJy s. 'M\ it was provided that Direc- 
 tors should be elccteil by the shareholder.s at the 
 annual meeting, and that vacancies should be 
 tilled in the manner provided liy by-laws, which, 
 
 M)y another section, a majority of the Directors 
 for the time being, was empowered to make, but 
 
 I « hicli had never in fact been made. In March, 
 1S74, three of the Directors appointed onelnnes 
 
 I a Director to till a vacancy, and in .September, 
 187-t, a call was made by four Directors, one of 
 whom was limes, who seconded the resolution. 
 IIilil, that although Innes was not legiilly a 
 Director, the call was valid, three of the Direc- 
 tors who made it being legally (jualitied. 
 
 The Dank of Liverpool \. Jiii/rloir, 
 
 3 H. &C.,236. 
 
 11. Shares-Right to transfer-Insolvency 
 
 —Perpetual injunction to restrain suit -Plain - 
 titr, the holder of a number of shares in the Rmk 
 of Liverpool, sold the same to S. and forwarded 
 
187 
 
 BANKS. 
 
 188 
 
 to him a power of attorney autliorizing tlie 
 rcgiBtry of tlie transf<'r. At tlie same time lie 
 forwarded to tiio inaiiagcr of tlie bank his stock 
 eertitieates to lie caneelli'd on the transfer lieiiig 
 rcgi&tered and iiotitied the liank of the transfer. 
 S. paid the consideration for the shares, and 
 received the transfer, wliicli he forwarded to the 
 manager whom he recjuested and authoii/.ed to 
 regi.ster his accejitance. The hank deelineil to 
 register the transfer until afterpayment of a cer- 
 tain loan olitained hy tlie Hank of Liverpool from 
 the Hank of Xova Scotia, which had heen pro- 
 cnred in pursuance (jf a resolution jiassed at a 
 meeting of shareholders at which plaintit!' was 
 present, and which (lurixirted to hind the share- 
 holders to hold their shares without assigning 
 them until the jirincipal and intei'est due on 
 such loan had lieeii fully paid. In the mean- 
 while the hank retained the papers, promising 
 that when the loan was rcjiaid the transfer 
 would he duly entered. .Suliseiiuenlly the Hank 
 of Liverpool hecame insolvent and assigned to 
 the Hank of Nova Scotia. 
 
 Ill III (on the authority of .S'»iiV/( V. Th< Hank 
 of Xora .Sfotici, 8 ,S. ('. R,, "mS, there heiiig 
 evidence that the loan was efl'ected on otlier 
 .securitj than the resolution, and that the resolu- 
 tion was never acted u])oii), that the pluintitl' was 
 not deprived hy the passage of the resolution of 
 the legal right to transfer his shares and to have 
 tiie tiansfer registercil in the hooks of the hank. 
 Jidtvi y. 'I'iii Hun/: (>/ Xvra Sio/i'a, 
 
 liR. & <;., '2.->4; 
 (iC. L. 'i., 44:5. 
 
 12. Sha.eholdcrs Rights of -The Banliing 
 
 Act. 34 Vie., e. 5, sees. 19 and 58 Resolutions 
 by Directors and shareholders not binding on 
 absent .shareholders^Equitable plea Hank of 
 L. brought an action against S., the defendant, 
 as .shareholder, to recover a call of 1(( per cent 
 on twenty-tive shares held by him in that bank. 
 Hy the 7th plea, and for defence on equitable 
 grounds, defendant said, "that before the said 
 call or notice thereof to the clefendant, tlie de- 
 fendant made, in good faith ami for valid 
 consideration in tliat behalf, a transfer and 
 assignment of all the shares and stock which he 
 had held in the Hank of L. to a person authorized 
 and qualified to receive the same, and the defen- 
 dant anil the transferees of tlie said shares or 
 stock did all things which were neces.sary for the 
 valiil and final tran.sfeiring of the .said shares or 
 stock, but the said plaintiH's, without legal excuse 
 iind without reason, refused to record such trans- 
 fer, or to register the same in the books of the 
 bank, or to recognize the said transfer, and the 
 defendant prays that the said Hank of L. shall 
 
 be compelled and decreed to make and complete 
 the said transfei', and to do all thing- ie(|iiiie(l on 
 its jiart to lie done to make the .said tniiisfur 
 va'id and ett'ectual, and that the .said Hank of L. 
 be enjoined from further prosecution of tiiissuit." 
 'I'Ik' plaintitTs tiled no replication to this plea, 
 but at the trial of the action, which took place 
 before .James, .1., without a jury, they attempted 
 to justify the refusal to permit the transfei' of 
 the shares upon the ground that at a special 
 general meeting of the shareholders of the liank 
 of L., held on the'JGth.hine, 187.S, it was resolved, 
 "that, in the opinion of the meeting, the liank 
 of L. should not bo allowed to go into liquiila- 
 tion, but that stejis should be taken to olitain a 
 loan of such sum as may be neces.saiy to cnaliie 
 the bank to resume specie jiayments, and tliat 
 the shareholders agree to hold their shares witli- 
 out assigning them until the principal and inter- 
 est due on such loan shall be fully paid, ami to 
 execute, when required, a bond to that ell'eet." 
 
 The defendant was not present at the nieeting 
 when this resolution was passed, and it ap])caied 
 from the evidence that the Hank of L. etlccted a 
 loan of .'?8(»,<KM) from the Hank of N. S. iqioii the 
 security of one H., who, to secure hiiii^clf, took 
 bonds for lesser aniounts from other shaiclioliUi-s, 
 including the defendant, whose bond was re- 
 leased by H. when the defendant sold his shares. 
 This he did in 1877 to certain persons tiieii in 
 good stamling, and powers of attorney, executed 
 by defendant an<l the purchasers respeetiM-ly, 
 were sent to tiie manager of the liank of 1,.. in 
 whose favor they were drawn, to ciialde liiin 
 to complete the transfer. Tlie Directors of tiie 
 liank of L. refused to [lermit the transfer, hut 
 the defendant was not notified of their rcl'u.sal, nor 
 dill they make any claim against him for any in- 
 debtedness on his part to the bank ; and it ap- 
 peared also from the evidence that suhsc(|nently 
 to the resolution of the "itith of June, 187.'i, and 
 prior to tlie sale by defendant of his shares, a 
 hirge miinber of otiier shares had been traiisfeiied 
 in the books of the bank. In October, 187!*, tlie 
 Hank of L. became insolvent, and the Hank of N. 
 S. the plaintitts, obtained leave to intervene and 
 carry on the action. 
 
 At the trial a verdict was found by tlicliulge 
 in favor of the defenihints ; but the .Siqireine 
 Court of Xova Scotia, .James, .1., ilix^inliiiij, 
 made absolute a rule iii«i to set aside the ver- 
 dict. 
 
 The Hank oj Xova Scotia, Axshimc, v. Smith, 
 
 4 K. kV,., Uti. 
 
 On appeal to the Supreme, Court of Canada, 
 
 Hild, reversing the judgment of the Supreme 
 
 Court of Nova Scotia, that the resolution "f the 
 
 \ 26th of June, 1873, could not bind shareholders 
 
189 
 
 BARRATRY. 
 
 190 
 
 iKit prt'seiit at tliat nieuling, even if it liad heeli 
 iutiil upon, and under the facts disclosed in 
 eviiUine till' (lefeiidant coulil not Im deprived of 
 Ills k'"id liglit uiiilcr tiie ISaniiing Act to tiaus- 
 fer iiis share!*, ami to have the transfer recorded 
 ill tlic hooks of the hank ; and tlie "th plea was 
 tliurifoic a good ciiiiitahle defence to the action. 
 /'. ;• Stning and (iwynne, .).). — It is doulnful 
 wluthcr llie strict rules aj)plied in Kngland to 
 n|iiitahle defences jileadeil under the (.". L. I'ro- 
 cicliire Act should lie adopted with reference to 
 siiL'li (licas ill Nova Scotia, where hoth legal and 
 eiiiiitahle remedies are rtdininistere<l l>y the same 
 ('(lint and in the same form of procedure. 
 Smith V. Till Bank of Xorn Sculta, 
 
 H .s. c. R., r).")S. 
 13. Shares — Transfer of Estoppel ~ 
 
 Action was hroiiglit against defendant as trans- 
 ft'i'ce of shares in the pluintitt' hunk, for calls, 
 'riicre was no valid transfer of the shares under 
 the Act, hut dcfeiidaiit had paid ..'alls, given a 
 ruccijit foi a dividend, coinhiiied with otiiers in 
 appoint iiig a proxy, anil liciiig present at the 
 trial, and, hearing all this evidence, had not 
 imiihiccd any evidence or otl'ered his own testi- 
 mony ill reply. 
 
 JI'liI, that he iiiusl he treatecl as a sharc- 
 IkiUKt. 
 
 77.1 Jlaiih of Lin ri'onl v. liiiji/oir, 
 •A R. & C.,-Ja(i. 
 
 iScotia, 0. 10-t of 1874, "To facilitate ariange- 
 menla between Railway Companies and their 
 creditors," the Windsor k Annapolis Railway 
 Company ])roj)osed an arrangement whereby the 
 8o-eulled R debenture stock of the company then 
 bearing interest at the rate of six i)er cent, was 
 "abrogated and deterniined," and in lieu there- 
 of the holders of said stock were to receive 
 allotments of new stocks thereby created, bear- 
 ing lower rates of interest, and otherwise (litter- 
 ing from the stock for which the}' were suiisti- 
 tuted. 
 
 Held, that an mucii of the Act of 1874 as was 
 necessary to the contirinatioii of the proposed 
 scheme, was within the legislative authority of 
 the Legislature of Xova .Scotia. 
 
 Weatherbe, J., ilisseiiliiii/ from the judgment 
 of the majority, hehl that the ])roposed sclicnie 
 could not be conlinneil, chietly on the ground 
 that the undertaking of the company extended 
 beyond the limits of the Province. 
 
 J\'i Wiiidior i(- Ainiuiiolit I'aihray, 
 
 4 R. k{i., WVl. 
 
 3. Agent's autliority determined by bank- 
 ruptcy of his principal. 
 
 Sk AS81CXMEXT, HI., !). 
 
 4. English bankrupt Debts due hini in 
 
 Nova Scotia cannot be attached. 
 
 ///// v. ^'c<o'/f(//, ;{ Miird. Kpit., 149. 
 
 s v., «/>.., ABSENT OK ABSCONDING 
 DEBTOR, IV X 
 
 BANKRIPTCV. 
 
 1. English Bankruptc} Act. -Count} Court 
 
 Judge acting in aid -Appeal -A County Court 
 Juilge was applied to, to act in aid of and as 
 luixiliury to the London Itaiikruptcy Court in 
 relation to property of an English bankrupt 
 sitiiatcil ill his district, and made an order ac- 
 conliiigly. 
 
 //'/(/, iMcDonald, C. J., diss, ii/lii;/] that no 
 appeal would lie fnnii such order to the Supreme 
 Omit, cither under the Insolvent Act of Canada, 
 which had given certain powers to the Judge in 
 iffficiice to insolvents, or under the County 
 tnuit acts, inasniuch as his order was not made 
 by reason of any jurisdiction conferred by those 
 acts, Imt by reason of the Imperial Iknkruptcy 
 Act, whieli did not give such appeal. 
 
 H' Carrill, ,x jiurt,: O/iddoii, .^ R. & (i., 410. 
 
 2. Bankrupt and Insolvency-Vltra vires 
 
 -Scheme of arrangement— Un<ler the provi- 
 siwia of the Act of the Legislature of Nova 
 
 5. Pi'ivileged from arrest in Nova Scotia 
 
 for debt provable under his bankruptcy in 
 England. S,, ARREST, !.,!». 
 
 (1. For cases under Insolvent Acts, 1860 
 and 1875. sm INSOLVENT ACTS, 1869 AND 
 1873. 
 
 7. For cases relating to indigent or insol- 
 vent debtors, &c. *,■ INSOLVENCI. 
 
 BARGAIN AND 8.UE- 
 
 I. OF LANDS— ,>Ve DEED. 
 II. OF GOODS— *e SALE. 
 
 BARRATRY- 
 See INSURANCE. 
 
191 BARRISTER- AT- LAW. 
 
 BAKRISTFK-AT-LAW. 
 
 192 
 
 Uy lettfr.s patfiit, diiti-cl •-'(itli May, 187ti, iiiiilcr 
 till' j^leat M'.il of tlie I'l-ovilici', aii<l .sigiml by 
 
 1. Associate Counsel KlRllt to be heard thf LiiMiti'iiantdnvoinor ami I'n.vimial Suca- 
 — Asscpiialf odimsi'l lias no rifjjlit to hv heanl if, tai-y. sevfial iiieiulpuis of tlie liar were uppoiiittd 
 on till' opciiiiiL,', tlif Coint lUvidew it uiineocssary (^liiooii's o(ainsd for Nova Scotia, and iirfcfdfiiue 
 to call upon ri'-'iioMdciit. ^^'i^'"* f,''''"''-''' '" tticni, as well as to other (,,liatiiij 
 
 //iilili If V. /)'«((/.■, ;{ it. &. t!., -;<9. counsel a])|»ointcil l(y the (!ovcrnoi-(!fncral alter 
 
 the Isl of duly, IHIi". A list of (,luefcn'» Luiiiisel 
 to whom jirecedence luid been thus given hv the 
 
 2. Law StlHleilt FllinS articles ~- The Lii,„te.,„„.t-<;ovenior, was iMtlilishcd in" the 
 Court ivfu>cd to allow a law students articles ^j^^^^^^/ (•,^._,„, „f tlio JTth .May, l!S7t). and the 
 of a])|)reiiticeshii) to he tiled, iiiiiir jifo """■> | mi,"ne of H., the respondent, was included in the 
 where they had not hcen liled at the time of ^ n^t j^t jt gave pieceilence and pn; audience 
 their execution. hetore him to several |)ersons, including apijeli- 
 
 /// re Af/'Untfloii of H'm/'s -2 K. k C, '.W.i. ,^^^^^^ ^^.,|,, ,jj,j „,,, j.„j,,y ■^^ \,^,(„^.^._ 
 
 Upon atiidavits disclosing theahove and dtiier 
 ;{. tJlieen'S Counsel — Powers of Local ^ facts, and on producing the original eonnuissldii 
 
 Legislature to appoint — Letters patent of i and letters patent, R., on the ;jrd .laiuiary, 
 precedence —Chapters "id aiul"_'l of the N. S. Acts ! 1S77, obtained a ride iiisl to grant iiim rank and 
 of iS74. respecting the ai)pointinent of C^Jueen's J precedence over all Queen's counsel appoinled 
 Counsel and the regulation of jjrecedence at the J in anil fur the I'rovince of Nova Scotia since the 
 I'.ar of X. N. liy the Lieutenantiiovernor of the 
 Province in Council, are Ixfrit (v'/v--, Imt the 
 latter is not to he construed as retrospective 
 in its etl'ect. 
 
 -dth Decendjer, 187-, and to set aside, so far as 
 they ad'eeted R. 's precedence, the letters patent, 
 dated the litith May, lS7r). This rule was made 
 alisolute liy the .Supreme Court of N'ova Sculia, 
 .lames, J.. <li':>" ii/iiiii, as to the latter Act not j on the "Jlith March, 1877. A lueliminary ohjec- 
 
 being retrospective. 
 
 tion was raised to the jurisdiction of the .Snpienie 
 
 The old (ireat Seal of the Province— that in i (,'ourt of Canada to hear the appeal, 
 use since 1S,S7 — used on ])atents a|)p()inting , //i/d, — 1. That the judgment of tlie Couit 
 Queen's Counsel* and regulating precedence at 1 liclow was one from which an appeal Would lie 
 the l>ar in !S7ti, ceased to be the (ireat Seal of | to the Supreme Com't of Canada {Fonnii' i; J., 
 
 the Province on tlie cransmission of a new (Jreat 
 Seal to the Lieiitenant-Oovernor in Decemlier, 
 
 disxfii/iiiii). 
 
 *2. Per .Strong, Pournier and Taschercaii, .JJ. 
 
 180!), though not adopted or proclaimed by the : _x]uit c '21, of 37 Vie., (Acts 1874 of N. S.) 
 Lieutenant-Covernor in Council. dames, J., ),;,„ ,„,t .^ retrcjspective ellect, and that the 
 
 <''"'-'"'"'f' ■ letters patent issued under the authority ef lliat 
 
 Wilkins. .T.. agreeing, but ex])ressing the .^^^.^ ^.„„i,| ,„„ ,^i5(.^.( ti,^, |„.ecedence of the 
 opinion tluit the presence of a (ireat Seal on the _ Q„een's counsel appointed by the Crown. 
 
 document in (rtieslion, atlixed by the iiroper | ., „ ir -i' i i,. it 
 
 ' . ' .'13. /'</■ Henry, lascliereau and dwynne, .J.I, 
 
 othceis, raised a coiielusive pi'esuiiiijtioii as to ,,„ , ^, n x- • . . , » • » i .i , 
 
 ' ' — Ihat the B. N. A. Act has not nivcsted the 
 
 ''''^'''" •', .,,.,. . ., „ . Letrislatiues of the Provinces with any control 
 
 over llie ai)i)ointnient ot (,|ueens counsel, ami as 
 
 „ , , ^, . ^, , Her Majesty forms no part of the I'roviiiiial 
 
 On (niiiKil to /h< Suiirunti Court ot Cantata, ' , . , . , , <: i iv • ■ d „ 
 
 '' ' * ; Legislatures, as she docs of the Doinmion I'ai- 
 
 By 37 Vic, c. '20, X. S,, (1874) the Lieutenant- I liament, no Act of any such Local Legislature 
 
 flovernor, of the Province of Xova .Scotia, I can in any manner impair or atl'eet her pierog- 
 
 was authorized to appoint Provincial officers ; ative right to aj)point (^tueen's counsel in Canada 
 
 under the name of Her Majesty's counsel learned i directly or through her representative, tlie(iov- 
 
 in the law for the Province. By 37 Vic, c. '21, 
 N. .S., (1874), the Lieutcnnnt-tiovernor was 
 authorized to grant to any member of the bar a 
 patent of j)recedence in the Courts of the Pro- 
 vince of Nova Scotia. R., the respondent, was 
 appointed by the (lovernor-(ieneral on the 27th 
 December, innler the great seal of Canada, a 
 Queen's coimsel, and by the tiniform practice of 
 the Court he had precedence over all members 
 of the bar not holding patents prior to his own. 
 
 ernor-deneral, or vest stich prerogative right in 
 the Lieuteiiant-tJovernors of the Provinces ; and 
 that .37 Vic, c. 20 and 21, N. S., are ultra vim 
 and void. 
 
 4. Per Strong and Fournier, JJ. — That as 
 this Court ought never, except in cases when 
 such adjudication is indispensable to the de- 
 cision of a cause, to pronounce upon the consti- 
 tutional power of a Legislature to pass a 
 statute, there was no necessity in this case for 
 
nr.i 
 
 MILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 194 
 
 tlu'iii t" •"'Pi''^'* '"' "I"'"'"" "1""' ''"-' viiliility iif sliuki'ii in iniiiiy ussenliiil points. TIk order 
 the Alt ill i|iitNtiiiii. was qiuiHliuil on u])puiil iiiul a new trial granted. 
 
 I.,y„;r V. I,'ll'-lni. .•! S. ('. K., C.Ttl. 
 
 4. Qiioph's (oiiiisoI Preccrtpiu'c of 
 
 11. h.iviiii: lifiii :i|)|M)iiit'/il ii (^'lU'cn's (,'onn.si'l 
 iiinU'i' a iiiiiiiiiis>ic>n fi'nm tlio ( lovi'i'iior-l icneral 
 of CiMiailii, iiis |)ri'(fili'iict' was (|iiosli(iniMl hy W., 
 wild was liis SI iiior at tile liar of Xova .Scotiu, 
 liul lu'lii no a)i|ioiMliiR'iit as (^lueun's Counsel 
 cithiT finiii tJK' ( loviTiior-( iciirral or tin- Lien- 
 tciuiiil (liiMiiinr. W. liiovi'il to liave liis cause 
 iiitcic'il on till' ijiickct ]irior to :liat of I!. 
 ■jia' motion was disiiiissiMl. 
 
 Loril/i/ V. hii/i/, ;{ X. S. 1)., ,".(Hi. 
 
 ,i. Mcinbrrs of Kar i^ot presumed to be In 
 
 Court, except on first day of Term --Counsel 
 fur ]ilaiMlill' moved for a rule to eontinue an 
 iipiHvil cause. 
 
 TIk' CoiMt : We will give yon a rule nlxi. 
 
 ('cuiiM'l ju'esseil for a rule aKsolute, as tlie 
 rule was unopposed, and altlioiigli tlie defeiid- 
 ;iiit's attorney was not in court, still he ought 
 til lie juesent, ami the Court would presume 
 him t'l lie so. 
 
 /'./• llaljliiirton, ('. .1.— After the tir.st day of 
 'IViin, Lreiilleiucn of the liar are not expected 
 t'/ )n- ill attendance here unless they have j)ar- 
 ticiilar liusine.ss. 
 
 Skhiiii:)- V. Laii' , .James, \i47. 
 
 S- , a/.<o, ATTORXKT. 
 
 On r^'ifM of I'oorv. MiLfllaii, .'{ N. S. 1)., 95. 
 
 3. Filiation, order or Meaning of words 
 
 "likely to become chargeable to any town- 
 ship " -4th R. S., c. 35, 8. 1--Defendant objected 
 to an order of tiliation maile at the instance of 
 the Overseers of the I'oor for Macean, on the 
 ground that, altlioiigh ilio mother was resident 
 at Macean when the child was born, the legal 
 
 J settlement of the mother was the Township of 
 Parrs) loro, 
 
 1 Hi III, that the father was liable to the plain- 
 till' township, the words "likely to become 
 chargeable to any township,'' being eijuivalent 
 to '■ likely to neeil relief from any township." 
 OnrMirx of Poor v. /Mrii/ioii, 4 K. & d., 58. 
 
 BEQlEST-SVe WILL. 
 
 BIGAMY- Sm criminal LAW. 
 
 BILL 
 
 BASTARD. 
 
 1. Affiliation — Ordei of— Appeal from an 
 onler ef tiliation. It appear.s that the defend- 
 ant liad been previously convicted of the same 
 ofl'ence before two Magistrates, that they had 
 tiii'ii iiiuile an order of tiliation upon and against 
 liiiii. uml that he had entered into a bond to abide 
 tliiit (inler. This order, however, seemed to lie 
 ■'iich as the provisions of the statute did not 
 wariiint. A second order was sulise<iuently olj- 
 tuineil, from which defendant ajipealed. The 
 jmy. altliongh instructed by the .Judge not to 
 loiiriim this second order by their verdict, found 
 i'giiiiist the defendant. 
 
 //fW, that their verdict must be set aside. 
 Onmmo/lht Poor for St. PafrirkS v. Foi/h, 
 
 1 N. S. I)., 197. 
 
 2. Order quashed and new trial ordered 
 
 U" an application for an order of filiation, 
 "lere was no clear .idinission on the part of the 
 f^Piiteil father and no fact of intercourse sworn 
 
 " ""^''P' ''>' the mother, whose evidence was 
 
 I. OF COSTS-*.! COSTS. 
 II. OF LADIN(i-.SV. SI1IPPI\«. 
 III. OF PARTICULARS-.SVe PRACTICE. 
 
 BILLS OF EXCilANOE AXD PROMISSORY 
 NOTES. 
 
 I. ACCKP'l'AXCl], 195. 
 
 II. ALTERATION, 196. 
 
 III. CONSIDKRATIOX, 197. 
 
 IV. EVIDKNCIC, 204. 
 
 V. FOREIGN LAW, 207. 
 
 VI. INDORSEMENT, 208. 
 
 VIL INTEREST, 2P2. 
 
 VIII. NOTICE OF DISHONOR, 213. 
 
 IX. PLEADINfJS, 214. 
 
 X. PRESENTMENT, 218. 
 
 XI. STAMPIN(i, 219. 
 
 XII. MISCELLANEOUS, 224. 
 
BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 196 
 
 /'()• Mc'l)i)ii!il(l, ('. .!., (lix^iiiliiKj, tliiit tlicre 
 uiiH cviili'iuc of till' ri'<Ti))t of II (oiisicU'iiilile 
 N\iin of iiioiH'y, tiy ilffi'iuliiiit, out of tlic u.-si'ts 
 of the estiitu, iiiid that, in tlie alini'lici; of u tiillir 
 aoromit of (!X)ii'ii(liliircs tlian liail ln'cn yiven, 
 (Iffi'iiilaiit wiiM jii't'tlutlcil from (Iciyiii;; that liu 
 WUM in finuls iit tiiu time lie aeeepted tiic liill, 
 I 'oi '<!•'* 1 1 al. V. T(i!//nr, 7 H. iS; <!., .')s,"i. 
 
 I. ArCKPTAXCK. 
 
 1. Conditional Fiilfllmcnt of condition 
 
 Burden of proof TruHteea— I'. F. it Co. made 
 an aHsignment of tiieir eNtate to tnt.stee.x, for 
 tlie l>enetit of their creditors, giving power to 
 the trustees to carry on tlie Inisine.ss witli a 
 view to its .settlement, and for such purpose to 
 make or j)rocm-e advances, which adviuieus were 
 to he a first lien on the jiroceeds of the estate. 
 The trustees carried on the husiness for a time 
 in fidlilment of the terms of the trust, hut wjmc 
 finally ohliged to place it in insolvency under 
 the Insolvent Act of 187.'), the defendant heing 
 appointed assignee. 
 
 At the time of the assignment to the trustees, 
 C. V. k Co. were indehted in a large smn to H. 
 B. \V.. and hetwecn the date of the assignment 
 antl the insolvency, this amount was consider- 
 ably increased for goods sujiplied for the pur- 
 pose of carrying on the husiness. 
 
 After the insolvi'Ucy defendant, as assignee of 
 the ('State, accepted .in order drawn hy H. J5. 
 W. in favor of plaintitls, in these words : " Ac- 
 cepted : payable when in funds as a first ])refer- 
 ence mit of the estate of C. F. & Co." The 
 evidence showed that defendant received the 
 Sinn of 81S,0(K) out of the estate, and applied 
 the lunownt to satisfy the chiim of the trustees 
 for advances made in carrying on the business ant, a Xova Scotiau re.si<Ient in Pans, gave an 
 of the estate, wliich it was insntlicient to meet, accommodation note bearing date "Halifax, > 
 
 S., (Jth, 187.">," payable to M. on demaiul, ami 
 
 II. ALl'KRATION. 
 
 1. After stamping: -At the trial cxcciition 
 was taken to the reception or the note, on tin- 
 ground that it was not suflicieiitly stamiicd. 
 The note had been drawn up, signed and .stuiii])i'il 
 in the defendant's absence. When it was ten- 
 d.ered to him, he required an alteration to lie 
 made in the date, which was done by coiniiuui 
 consent. 
 
 //»/(/, that the alteration did not neucssitate 
 a restaniping, because it was at most a mere 
 correction of an error, and was made before the 
 note was delivered. 
 
 Hl/f V. MvLiod, 5 R. & (i., '.'Sn. 
 
 2. Correction of manifest error— Dofenl 
 
 Ilild, that the evidence did not show such a 
 fulfilment of the condition upon which the ac- 
 
 enclosed it to M, on the lltli .June. Tlie (ith 
 ceptance was ma,kras'ur,nake the' defendant of Jnne being Sunday, M., on receipt of the 
 liable upon it to the plaintiirs ; I "otc, altered the 6 to 8. and inserted at the top 
 
 That the trustees, under the assignment, l.a.l the wor.l ".Tune," which lia.l been <nmtle,l. 
 a first lien for the amount of the advances made l IMd, that, as the liability of the maker was 
 by them, an.l might have interfered to prevent { not increased, the not' being payable on cle- 
 defen.iant from treating moneys received, as "land, and the alteration was made to correct a 
 received by him as assignee, until their claims manifest mistake on the part of the maker, the 
 had been first discharged. ' note was good. , „ «• r ifO 
 
 The .lefen.lant was not bound to go into par- '■ Th, Merrhanfs' Rank v. Shrhn,,!, 1 R. & (,.,4,U 
 ticulars, and show to whom, and when, and 
 
 under what oircnmstances, the money was paid i 3. ElfPCt Of -Question for the Jaf}' Son* 
 by him ; but that the burden was on plaintiffs ^ suit— Action was brought on a bill of cxeli,.iige 
 of showing misappropriation of the funds. ^Irawn by defendants. The bill, with the ac- 
 
 Ritchie, J., dU-<cntinii. i ceptance, was proved and read without ol.';ei- 
 
 PoUe.r.1 et al. v. Taylor, 20 N. S. R., | tion, when plaintiff rested ; whereupon defoti- 
 
 (8 R. & (i.), 302 ; j ant moved for non-suit on the ground that there 
 7 C. L. T., 4.S4. I was no evidence of .stamping, and because of an 
 alteration unexplained on the face of the hill. 
 2. Conditional — Evidence — Defendant, as ; Plaintitl' was then recalled, and gave evidence 
 assignee of the estate of C. F. & Co., accepted a i as to double stamping and cancellation. Defen • 
 bill " payable when in funds as a first preference ant gave evidence as to the alteration iii tfie i . 
 out of the estate." i contending that the date had been altered rom 
 
 Held, that in the absence of proof that the 27th August to the 17th August. After plain- 
 defendant was in funds in the amount sought to , tiff had been recalled to rebut, the .Judge pro- 
 be recovered before action brought, plaintiff j posed to submit to the jury the view that, i t « 
 could not succeed. | plaintifl' had received the bill from the acceptors- 
 
197 BILLS OF EXCHANGE AND PROMLSSOKY NOTES. 
 
 198 
 
 hewoiiM liet'iititlLMl tort'cdvi'i, iK'caiisii it would j plaiiitiff'.s cDii.sent out of custody, and sulwe- 
 
 lie imposHilik' for tlii' alteration to liavu taken (|iifntly gavo a note for the del)t, /«/((!, sutlioient 
 
 pliiic iifti'r Hie l>ill had left dcfciidiint'r hanrls consideration to Hiixtain action on note, 
 
 and hcfore it reached the plainliU' and hecanie j Jlivkmaii v. Xii-ickir, I Thoni., '200. 
 
 an iiviiilidile hill ; hut if from the defendant, he ' 
 
 could .,ot. I'laintilfs counsel then said he would' 4. „e„very Of decd -^ KvldCnCC Varying 
 
 sulmut to a non-suit, an.l the .hulge gave hnn a ^ terms of note inadminsible -Defendant u.ado 
 
 rule to set It aside, ! n pronns.sory note in favor of i.laintitt' for part 
 
 //'/'/, that the view which the diiduo had i ,,f *i,„ ,„.„ : 1 . »: ,• 1 1 , 
 
 *> I "I the coiisideration money mentioned in a deed 
 
 ijidiHised to sulimit to the jury was incorrect : I ,,f ,„.„.,,;,, 1,,., 1 c . 1 • .-ir , ■<■ 
 
 ', ' , , ' ''lOr certain land, from ])laintiti and wife to 
 
 tliiit piimitill was not iirecluded finm moviiij/ to ' ,i,,f,.,.,i,...4 i>i ;. »•«•> •.. m .' 1 
 
 ' , , 1 •"'b'-^ ileti'iidant. I'laintm s witness, MeK., proved 
 
 set till' iiiiii-siiit aside, and that the evidence as ' ,ii.. .>,..i.: f *i . i.i • • 1 i- 
 
 , , , , the niaking ot the note, the sii'iiiiiL' and sealiiu: 
 
 to nltbiatioii of the date and cancellation of the 
 stiiiiijis. «iia for the jury. 
 
 Dumrllk v. J)ari(.i it uL, 1 K. & (i., 159. 
 
 Ill, CON.SIDKRATION. 
 1. .tbsCIICe of Novation -A., who was in- 
 
 of the (h'cil, l.y plaintitl' and ids wife, and the 
 delivery of it to defendant, and testified, fur- 
 ther, that it was agreed between the parties 
 that the deed was to he left at the house of a 
 certain .Justice of the Peace, for the purpose of 
 having the phiintid's wife examined separate 
 and apart from her husbanil, as to her release 
 of her dower, and the fact of such examination 
 and acknowledgment of ielea.se of dower certi- 
 fied, and that the note was not to he recoverable 
 
 (khtcd t()])laintitrs, sold defendant a threshing- | 
 
 iiiauliiiii', and in payment for the same received i ""til sucli examination and certificate were 
 from the defendant a proini.ssory note, which, 1 "''ide. The wife, it appeared, refused to go 
 at A,'s i'e(|ue.st, was made jiayahle to the plain- p"-'f"''^ "■ dustice and acknowledge a release of 
 tiffs, A. forwarded the note to plaintiffs, in I •"-'■' 'l«»w «>'• 
 
 part iwyment of their account against him. A. | If' Id, that the delivevy of the dcecJ consti- 
 wasiiot acting as plaintifl's' agent in .selling the ' tilted a good consideration for tlie note, and 
 iiiacfiiiic, (lid not inform them of the transaction, j that no parol evidence of an agreement to vary 
 and had 110 agreement with them that the note ; the terms of the note should have been received. 
 should he taken in their favor. j The ilefendant's couii.sel desired at the close of 
 
 //(/'/, that the plaintiffs could not recover, plaiiitiffs ca.se to recall tlie witness McK. to 
 because tlieie was no consideration for the note , examine liim as to what he meant when he spoke 
 moving' finiii plaintiffs to defendant, and no evi- of the delivery of the deed, having alreaily had 
 
 the opportunity of cross-examining him on that 
 Cosxitf ,t al. V. Cook, ") R. k O., 84. | point. The .Judge who trie.l the caii.se declined 
 
 to allow the witness to be recalled for that pur- 
 pose. 
 
 Htltl, that it was a matter within the discre- 
 . tion of the .fudge and that he liad exercised the 
 discretion wisely. 
 
 Ontliam v. (,'ra/uun, '2 R. & (,'., 265. 
 
 (leiice to support a novation. 
 
 2. Cossit V. t'ookc distinguished— Plaintiff 
 
 was one of a miiuher associated for the purchase 
 of a lish-liap, and advanced the whole of the 
 purchase money. McC, one of the associates, 
 sokl half his interest to defendant, and a note 
 signed hy MeC. and defendant was delivered to 
 Iilaintilf to he credited on McC.'s debt to plain- 
 till' on account of the purchase, plaintiff having 
 refused to take defendant's note without secur- 
 ity. 
 
 Bid, that there was good consideration for 
 tlie note ; that Mie case did not come within the 
 decision in Co^.itt v. Cooke, 5 R. & G., 84, and 
 thiit plaintiff could recover. 
 
 Si>iniity v. Matthews, 20 N. S. R., 
 
 (8 R. &G.), 105; 
 8 C. L. T., .375, 
 
 3. Defendant after discharge ft-om arrest 
 
 gives note-Debt held sufficient con.-dderation 
 -'\\here the defendant had been discharged by 
 
 5. Failure of-Contract for sale Of shares 
 
 in a ship — Partial destruction of subject- 
 matter of the contract before acceptance- 
 Introduction of a new element — Defendant 
 was the drawer of a bill of exchange given in 
 payment for certain shares in a vessel called the 
 "Lawrence Delap," then discharging cargo at 
 New York. Payment of the bill was resisted, 
 on the ground that, at the time of the comple- 
 tion of the contract and the transfer of the 
 shares, the vessel had been totally destroyed by 
 fire and had ceased to exist, and that there was, 
 therefore, no consideration for the bill at the 
 time it was delivered. The evidence showed 
 that on the morning of the day on which the 
 
199 
 
 BILLS OF EXCHANCJK AND PROMISSORY NOTES. 
 
 200 
 
 liiU wiis lU'liviic.l mill the tiaiir^fip iiiiulf, tin,' //r/r/, a/vo, tlu! iii>tf>« not lieeiu«ri«inally legally 
 
 vu»»i;l todk liri', mid tliiil liifiiif tliu Ininsfi'i' Mtuiii|M'il, tlmt tlio pluiiitilV, us iit^ i»,'fiiim;linliler, 
 
 WiiH iimili', liiT liiiist li.ul f.illi'li, ll.i' inside liail if ill all. at tiic linir of the niaUiuK of tiie iidtw 
 
 litM'M j.'lltti'd, till' deck.-. l)lirnfd iilld imll of the and was tjicn'foie ^■c^^ni/.illlt of the eilillliistaiueK 
 
 BideH. In tills cciiiililicin the vessel wan lowed Mil rounding I lieif exeeiilion. eoiild not valnlatu 
 
 (lilt into the liarhoi and senttled. The hull was them hy doiil.le Htuin|.iiig. under Act of IMTO, 
 
 sulisiMiiieiilly raised and snld, tiie jirice realizuil oap. l.S, NiiliHuution 1'-'. 
 
 lleill^,' i:<.')l)0 less tiiaii the eosl (if raisinj.; it. 'I'hi! 
 hulk was Hiiliseiiiieiilly converted into a uoal 
 bar;.'!'. 
 
 Ill Id, iiigliy, •),, ilii^i iiliiiii, tliat there was 
 not si.ch a total failure of eonsideralion as to 
 form a defeiiee to an aclinii cm the liill. 
 
 IIV(^ rs V. MrCii/hirh, •_> K. ii ('., 74, 
 
 8. Innorcnt holder not afTcrted by niint 
 
 of statute of frauds Defendants |iiiiili;iseil 
 a (|uanlity of j^'rowinj,' trees, and ;,'iive in |),iy- 
 ineiit tiierefor their promissory note, wiiicii, 
 
 'i'he m^(,'otiatioiis for the sale were euiiclucled .ifter jiassinj; thron^di liie hands of Iwd ntliiT 
 by eoriespondence. On .luly !Hii, IHM.'t, [ilain- lioldds, and after it lieeanie due, was iiiildisud 
 till' wrote tjiat he was prepared to make tiie t„ ti,,. pluintill' for \alue and without iintitf. 
 
 To an aetion liy plaintitl' to recover the amimiil 
 of the note, defendants pleaded, ailionj,' otiiur 
 
 transfer on payment of a specilied price. On 
 the lllh, defeiulant telegraphed plaintill', "will 
 see you tirsi next week : ])ay for ten shares 
 Dehip and take title." 'I'iie lire and delivery of 
 the liill took ))lace on the i'.tth. 
 
 J'l r Wealherlie, .[.That the contract was 
 completeil liy telegram of the lltli, and that 
 
 tliini,'s, -- 
 
 I. That they were imluci'd to make the imte 
 
 liy fraud ; 
 
 '2. That there never was any coiisideriitiiiii 
 
 for tiie note, inasmiieh a.s the trees, in paynieiit 
 
 the iiroperty would pass, iiotwithsiuntlinj,' tiie for wliich it was >,'ivcn, were not of the ihanuter 
 postii.iuement of the time of payment l>y the and numlier represented, and were wnitiiless 
 
 and unmerehantuble ; 
 
 3. That the note was not jiroperly stampul. 
 
 A defence was also raised under tlie .Stiilute 
 of Frauds, on the grounds, — 
 
 1. That the trees weie goods and liierclwn- 
 dise, and there was no receipt or acceptance nf 
 the gootls, and no part ])ayment 
 
 defendant. 
 
 /'• ;• Kigby, .1. —Tile iioslpoiieinent of the time 
 of payment introduced a new element, which 
 would re(|uil'u acceptance to constitute a com- 
 plete contract. 
 
 Whitman v. Parktr at a/., ti 1*. k (!., l.V) ; 
 (IC. L. T., 448. 
 
 6. Failure Of-Remedj for partial millire 2. That the contract havmg been made ii. 
 —It is not open to the ilefendant to impeach 1 reference to growing trees, reipiired a note or 
 tlie note f.i whicli he is sued unless there has memorandnin in writing. 
 
 been a total failure of consideration, liis proper i jt appeared from the evidence that liicie was 
 
 remedy for any partial failure being by cross- ' ,,(j ^yarranty as to the condition of the trees; 
 
 action. I that the defendants had an oiiportimity of 
 
 Bmndi<,<! v. Ihlaunj, •_' X. S. D., ()2. i e^,^,„i„i„j, them before making the contract, ami 
 
 I that they asked to be relieved, after the contract 
 7. Failure Of-Stamplng-DOUble by party ' ^,^g completed, on another than the niisrcpresen- 
 st becoming holder— Plaintiff, representing i tj^tjj,^ alleged. 
 
 first 
 
 himself to be the agent of owners of land which 
 defendant had occupied as a squatter, for twenty- 
 six years, induced defendant to sign several 
 promissory notes, stating that he would give 
 defendant a deed of the land, defendant to give 
 liiin a mortgage for balance of purchase money. 
 Defendant never received the deed nor gave the 
 mortgage. 
 
 Held, that the plaintiff had failed to prove 
 consideration for the notes. 
 
 Held, aim, that although there was no plea 
 of insufficient or illegal stamping yet as evidence 
 of illegal stamping had lieen received at the trial 
 without objection, the question of the legality of 
 the stamping was for the consideration of the 
 Court. 
 
 allege 
 
 Held, (1.) That the plea of fraud and mis- 
 representation was not ma<le out; 
 
 (2.) That the contract for the sale of tiie 
 trees had no connection with any interest in land i 
 
 (.3.) That the defendants could not set up 
 want of consideration for the note at a defence 
 to an action by an innocent holder. 
 
 McDonald, C. J., dixxentimj, on the ground 
 
 that the contract was one on which the original 
 
 payees could not recover under the .Statute of 
 
 Frauds, and the plaintiff stood in the same F^i- 
 
 tion, the note having been indor.scd to liim after 
 
 maturity. 
 
 Mcintosh v.McLeod tt al., R& <^'- '-^' 
 6C.L.T.,449. 
 
201 
 
 HILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 •202 
 
 ft. iPStnlllyof lilquorsold Appropriation in suit Im.l Ih'ch aiww l.y .U'feii.lmit's futlifr to 
 of imymeiit ;Jr(l R. S., c. 19, h. 16— Actinii on ii i)liiiiititl", out of iilfeolion ami rogiinl for phiin- 
 |iiiiiiiiss(irv iiofc. Krffiiif, timt till' iiiiisidciii- tilT's niothi'i-. I>ctViiil,iiit plciulcd tliiil tlic iioUi 
 tidii for till' iiotP ocmnisti'il in l)ait of cluirgcH for wiis olitiiiticd liy fraud ; that lit tlic tinio it wii s 
 
 niiidf, liiw father was in a statu of mental iiiilie- 
 eility ; and that ihori' was no good or valualile 
 I'onsidi'ration, On the trial, tho dufiiu'c of 
 want of consideration was not urged, anil tiio 
 jury found foi plaintilf on tlie otlier two issiicM. 
 Jf(/il, that there must lio a now trial, contin- 
 
 ing tlie imiuiry thereat to the iiuestion of con- 
 linhr V. Rend, 1 N. S. D., 109. 
 
 iiitiixic'iitiii),'lii|unrsHiilil l)y [ilaintitl' to defendant, 
 ill (|ii;Mititii's h\Hs tlian one gallon. 
 
 //'/'/, tli.it iiiiiltM' the provisions of the Licenno 
 Act, JU'visid Sialutes, (.Srd series), e. 10, see, l(i, 
 tliu note waij void, tiie ett'eet of the Act lieing to 
 leiiiliT sucli sales of liquors actually illegal. 
 
 ////'/, that till' law would not permit payineiits 
 iiiaile liy llie ilelitor on aeeoiint to lie appropria- sideratioli. 
 teil liy the ereditor to eliarges for liquor thus 
 sold, even though theapproiiriation he made with ! 
 
 tiie ikhtor's consent. 18. Movingft'oni paycc to mnkcr — A 
 
 Siiiit/i V. .Ucl'Jarlnrii, 1 N. S. I)., 209. deed of land was madt; liy a farmer to one of his 
 
 I sons, who, at the father's request, gave his 
 
 10. Lrgality of Srd Rev. Stats., C. 19 - i promissory note to his father, jiayal.le to the 
 
 I'laintilt' supplied defendant witii merchandise, other lirolhers respectively, the arrangement 
 
 iind aiiiongotlier things, with intoxicating li(|Ui)is lieing made for the purpose of distriiuiting tho 
 
 ill i|iiaiJtities of less than one gallon at one and estate of the father without a will. The notes 
 
 till' .liiiiie time. Defendant, on the other hand, ' were lodged hy the father with anothei' person. 
 
 sii|ipliiilpliintill'witharticles which were placed Ift/il, that the ]>ayees could not recover on 
 
 to his credit ill plaintiffs hooks of iiccount. On the notes, for want of consideration moving 
 
 11 sctileiiH'ut of accounts, plaintill' struck out of from them to the maker. 
 
 his luciiiiut all charges for liquors sup]>lied as , 
 
 iilii've and, with defendant's consent, deducted a 
 
 likcaiiioinit from the latter's credits l.y way of ^^ ^^^^ g,^^„ ^^ ^^^1^^^^ ^^ ^, p,^ 
 
 liayiiunt for the liquor. Defendant ha-nigg.ven ^-^^ ^^^ ^^^^ ^^^ ^ j^^^ ^,, ^ ^^^^^^ ^^^_ 
 
 ii iiidiMissmv note tor the lialance. „• j ■ j n. • xt 
 
 ' , , , ' riage, and assigned after marriage — No con- 
 
 llilil, that the note so given was not void „;,i„_ a /. i . i .1 
 
 , ,, . , " sideration — L. made an assignment under the 
 
 "•■■I'v IJevised Statutes, (Hi. I Series) C'liai)ter 10, t 1 * a *. t loeo • • • , ;• 11^ 
 .. , ^ . '. .' Insolvent Act of I ShO, assigning /;//(•*• r(/(rt a del it 
 
 Forsyth v. Fomjth, 1 K. & (i., .380. 
 
 lii'iii;; iieitlier for nor to secure intoxicating 
 lii|iiiiis ill any quantity as forbidden hy tlie /■ 
 St;i«ute. The Statute lieing restrictive of the 
 ciiiiiiiioii law and of a penal character !• ust re- 
 etive a restrictive construction and on no account 
 sliimlil he construed to mean anything other than 
 tho plain ordinary meaning the worda would 
 convey. 
 
 Snulh V. .VcEat-htrn, ;j X. S. I)., ;j.j & 270. 
 
 11. Misrepresentation as to quantity of; 
 
 land sold— 111 an action on a ))romissory note 
 given ill payment for huid purchased by defend- 
 ant from pliiintill', the defendant relied on an 
 
 of .SlOO due him by Mrs. 0'I5. Subsequently, 
 married Mrs. O'H. After the marriage, t"s 
 assignee pressed for a settlement of the §100 
 debt, and Mrs. C. (formerly Mrs. O'U. ) gave 
 the assignee a note for the amount, in wliii h the 
 defendant joined as surety. 
 
 Ifi III. that the defendant was not liable on the 
 note, as there was no consideration for Mrs. C'a 
 making it. 
 
 McDaiild V. McMiihiii, 2 R. & C, 405. 
 
 I 15. Partial failure of-Evidcnce of cir- 
 cumstances under which note was given, ad- 
 alkgud misreiiresciitatiim as to the quantity of i missible— 'I'he defendant A. at an auction of 
 liiiiilcoiitaiiied in one of the lots sold. ''''>' '"''^ off the unsold portion, estimated at 25 
 
 y/i^W, there being no evidence that the mis- j ^""''' 'it •'?1-' P^'f ton, and gave to plaintiff his note 
 
 , for J^.'lOO, on the understanding tliat if the quan- 
 tity sold fell short of the estimated amount a 
 proportionate deduction wouhl be made from the 
 face of the note. The quantity liaving been 
 largely over-estimated, 
 
 Htld, that it was competent for the Court to 
 receive evidence of the circumstances under 
 which the note was given to show a partial 
 failure of consideration. 
 
 Fi.'iher v. Archibald et al., 2 N. S. D., 298. 
 
 rcprusentation, if made at all, was made falsely 
 w with intent to deceive the defendant, or to 
 iniliiee him to do that which he otherwise would 
 not have dor.e, that the defendant could not 
 sueceeil, 
 
 ///// v. McLeod, 5 R. & a., 280. 
 
 t2. Moral obligation -JTew trial -A purely 
 
 moral obligation does not constitute sufficient 
 consideration for a promissory note. The note 
 
203 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 204 
 
 16. Recovery of, on count for money paid 
 
 — I'lie iioteH sued on were given in renewal of a 
 previous note which was given in consideration 
 of plaintiff retiring a bill of exchange on which 
 the defendant was liable as drawer. 
 
 Held, that if the plaintifl's could not recover | 
 on the notes they could recover on the count for 
 money paid, wiiioli was the original considera- 
 tion. 
 
 Soutlur It a/, v. ]Vallarc cl a/., '20 N. S. R., 
 
 (8 R. &(i.), 509. ' 
 
 Aflirnied on appeal to the Su])renie Court of 
 Canada, Wallace v. Soutlur, 9 C. L. T., "210. 
 
 17. Verbal agreement for sale of land— 
 
 Vendor takes posses.sion — Wlieie tiie consider- 
 ation of a promissory note was the purchase of 
 land of wliich the maker took possession, 
 tliougli there was no written agreement for tlie 
 sale of the Kind, and the consideiation was not 
 expressed on the face of tiie note, tlie maker 
 cannot set up as a defemje the want of consider- 
 ation. 
 
 (imy V. Whitman, 2 Thorn., 1.57. 
 
 18. Evidence of verbal agreement for 
 
 sale of land inadmissible to show considera- 
 tion — Where a note was given to plaintitf in 
 part payment of jmrcliase money of lands, under 
 an agreement for sale and purcluise not reduced 
 to writing, /((/(/, tiiat tlie evidence could not be 
 given of the consideration, and tliat plaintiff 
 could not recover the amount "f the note. 
 
 Black- V. (t'csiiir <t al., 2 Thorn., 1.57; 
 Llii(l-ii.ii/ V. Zii'icki-.v, 2 N. S. 1)., 100. 
 [Note. — In the argument of (Irayx. Whitman, 
 which was decided after /Slack- y. Gtsncr d al., 
 the former case is distinguished from tiie latter 
 by the fact of the maker of tiie note going into 
 possession. The Court in the former merely 
 said that it was clear there must be judgment 
 for the plaintiff.] 
 
 19. Want of Jfegllgence-Action on a pro- 
 missory note. Defence, no consideration. W. 
 & McC. obtained a judgment against S., and 
 under an execution issued on this judgment ami 
 a prior execution the Slieritt', in Feliruary, 18.59, 
 levied on the goods of .S. and sold them at a 
 great sacrifice. After satisfying tlie prior exe- 
 cution there remained in the .Slieriff's liands a 
 balance of ,i;(iO, which he did not pay over to 
 W. & McC , and it ajijieared tiiat they never 
 took any stejis to compel liim to ilo so, S. on 
 several occasions attempted to get an account 
 from tiie Sheriff, but failed. S. subsec|uently 
 made several payments on the judgment debt. 
 In September, 1864, S. was arrested at the 
 
 instance of W. & McC. , and, to avoid going to 
 jail, paid £70 in cash, and gave two notes, one 
 of which was the note sued upon. The defence 
 set up was, that the notes were witiiout consid- 
 eration, as if S. were credited witii the balance 
 in the .Slierift"s hands, the judgment debt would 
 be more than paid. 
 
 Held, that as through the negligence of the 
 judgment creditors the remedy against the 
 Slierift" had Ijeen lost, tliey, and not the debtor, 
 must suffer the loss, and that tiierefore the note 
 was without consideration. 
 
 Coleman v. Dunlap et, al., 1 N. S. I)., 216. 
 
 IV. EVIDENCE. 
 
 1. Contemporaneous agreement— Cannot 
 
 control note — The defendant and one Bnsliell 
 applied to tlie plaintiff, a l)roker, to raise some 
 money re(piire<l by liushell, who owned Iwni; 
 stock, and had an asset due from Almon & 
 Mackintosh amounting in the whole to 8,"04. 
 Plaintiff' sold the bank stock and obtained tlie 
 balance of the sum required by discounting a note 
 for .S2()0, made by defendant to tiie order of 
 Bushell, indorsed by him to plaintiff. Contem- 
 poraneously with tlie note a memorandum was 
 signed by plaintiff, defendant and Bu.shell as 
 follows : "A note received from F. Bossoin for 
 .^JtiO, the conditions of which are that said note 
 is given and to be paid by the first dividend of 
 tile estate of Almon k Mackintosh, and if the 
 first dividend does not amount to 82ti(), the 
 balance shall be paid on tlie day of maturity of 
 said note, so that Rusiiell shall not be called on 
 to pay any money whatever to protect said note, 
 and that the amount of Rushell's account lie 
 transferred to Jenkins ami to be held by him as 
 colhitei'al for saiil note's payment, and lie alone 
 to draw said diviilend and place to credit of 
 said note for .S2G0., and the transfer made by 
 Bu.shell to .Tenkinsis to be tranferred toBossom 
 when Jenkins has received in full the sum of 
 .S504." Plaintiff retired the note and sued tlie 
 defendant for the amount. 
 
 /Jild, reversing the decision of tlie County 
 Court, that the agreement did not control tiie 
 note so as to alter its character as a promissory 
 note between the ])arties and prevent tlie plain- 
 tiff from recovering. 
 
 Wealherbe, J., <lis.-<enliv;i. 
 
 Jenkins v. lioMom, 1 R. & (j., 540. 
 
 2. Evidence proving the note an accoin> 
 
 modation - Common counts — Plaintiff, O'C, 
 brought an action to recover from defendants) 
 
205 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 206 
 
 W. ami E., money paiilto retire iiii acconiinodca- ' relation whatever to the validity of the note 
 tioii iiuif for .'*().S8.17, made liy O'C. in favor of under the Stamp Acts. The principle governing 
 W. mill indorsed liy W. and K., and negotiated the exercise of judicial discretion in relation to 
 liy K., (lilted iliinuary 0, 1874, the declaration allowing amendments is, not to permit them to 
 cuutaiiiiii" tlie common counts and a count on a be made where the etl'ect will be to substitute a 
 giianuitee. Tlie note was afterwards renewed question for trial which is substantially different 
 for>'4.'iS, Ajiril l.Stli, 1S74, jilaintiff having paid from that which the parties came prepared to try. 
 the ililli Tcni-e, and a memorandum was produced Although a proper amendment cannot be 
 (lilted April l.'kh, 1S74, signed by both W. and refused at the trial, when circumstances during 
 E., cuitifying that the .$4;i8 note was more its progress unexpectedly manifest a necessity 
 accdinniodiition to K., but at the maturity of the for such amendment, principle and convenience 
 note for s4;iS, plaintitf was obliged to retire it. alike demand that such a motion should not be 
 Detendiint H. withdrew his plea • at the trial. ; entertained in any ciise during the trial, where, 
 Defendant W. admitted signing a ])a|)ei' dated by observing due diligence, leave to amend 
 Miiv Kith, 187.'?, certifying that a note for .S778 might have been obtained at an antecedent 
 nt that (laic Wiis made by pliiintitV for accommo- ! period. The note having been read in evidence 
 (liitiiiM. iind tliiit he \V.. was to pay the same ' at the instance and on the motion of defendant's 
 williiiul rec(nu>c to jiliiintitV. W. admitted also ; counsel, 
 
 thiit the origin of the note for .S().S8. 17 wasanote ! Hild, that he was thereby estopped from 
 for 877S or .■<78(l, Imt thonglit that the memoran- ' denying its validity. 
 
 The plaintiffs, as soon as the defect in the 
 
 duin of Miiy loth. 187.'}, referred to a ditferent 
 note from the one last mentioned. The jury 
 found tliiit tlic .S778 iiotc referr(-'(l to in the 
 nieirioi'iindiim of Miiy loth, 187.S. Wiis the origin 
 
 note was discovered, affixed stamps of double 
 the proper value to it in open Court. 
 
 Hild, Wilkins, J., (li-^-iciitiiiii, that under sec. 
 (if tlie transaction out of which the suit arose, I 12, chap. 9, of the Dominion Act of 1867, they 
 the .><():iS. 17 note and the 84.S8 note being simply ' had satisfied the requisitions of the statute. 
 
 renewiils of tiie .'5778 note, and the jury found 
 for plaiiititl' for the iiniount claimed. 
 
 //'/(/. that the evidence of the memorandum of 
 Miiy 10th, 187.S, was admissible, that the liability 
 of W. under that undertaking was not dis- 
 ciiiU7.'e(l l)y tiie fact that both he and K. after- 
 wards signed a certificate inconsistent with it. 
 
 The Bank of Xova Scotia v. Chipmau, 
 
 •_> N. 8. D., 4.38. 
 
 4. Note received in evidence — Too late 
 
 to object to insufficiency of stamping — Inter- 
 est where note made in Nova Scotia payable 
 in Boston — Place of payment determines — 
 
 and tliiit tlie verdict could be upheld under the ! A written promise made in Xova .Scotia, to pay 
 O(jiiiiiion counts for money paid. 
 O'Connor V. Wallnci ct 
 
 I, 
 
 ! a certain sum of money in Boston, in United 
 (7 a/., 1 R. it C, 0"2. I States currency, is a promissory note. 
 
 I A verdict for plaintiff for •'?'2(i70, " with inter- 
 3. EflTeCt of defendant reading note in jest," is a verdict on which judgment may be 
 evidence - Amendment — Stamping — In an entered up, though the note on which the action 
 iietioii on ii promissory note defendant pleaded was brought, payiible in Boston, U. S., specified 
 seveiid ])leiis, none of which denied tlie making no nite of interest, the rate of interest at the 
 or iiiildising of the note, or asserted its invalid- place of payment, at the time of the trial, to l)e 
 ity ill relation to the .Stiinip Acts. At the trial, ' ascertained by a Master of the Court. 
 hefore tlie case was opened, he moved for leave After a promissory note has been read in evi- 
 to iidil pjeiis under the Stamj) ^Vct, asserting in deuce, it is too late to object to the insufficiency 
 Ills iilKdavit that on the morning of the trial he of the stanqis. 
 
 had (liseovered that the stamps upon the note Soiithtr tt nl. v. Wallavi'., 2 R. i^- C, 548 ; 
 
 had not been duly obliteratcil according to the 1 C. L. T., ooO. 
 
 provisions of the statute, a defect of which he Tlevcrsed on appeal to the Supreme Court of 
 had not been previously aware. The presiding Canada, 2 S. C. K., .')08. 
 Judge refused his application, subject to the 
 
 opinion of the Court. 5. Varying Hotc -Inipropcri)' received— 
 
 //'W, that the judicial discretion had been Plaintiff sold a mare to defenihmt for the sum of 
 
 properly exercised, becau.se, 1st, the discovery 8140, in part payment of which he accepted an 
 
 of till alleged defect in the instrument might order, drawn by defendant on Albert (Jraves, 
 
 have lieen obtained by due diligence before the for .«i80. 
 
 triid ; iind 2nd, and especially, ))ecause the real To an action by plaintiff on the original cause 
 
 questi(m in controversy between the parties, of action, defendant pleaded, among other pleas, 
 
 wliieli they both came prepared to try, had no "non-presentment for payment, no notice of 
 
207 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 208 
 
 dishonor, mid effcots in tlie luiiids of (inives, 
 to the .iinonnt of the l)ill, at llie time it Ijuuiime 
 due." The issues tluis nii.sfd were not put to 
 the jury, their attention being directed to issues 
 on the count for the origiu'il cause of action, 
 and to eoiiHicling .statements of liie parties as to 
 the terms or conditions on whicii the order was 
 received l)y phiiiititf. 
 
 Tlie evidence of plaintiH', for whom tlie juiy 
 found, was : " Tiie onhT was not talien as a jiay- 
 ment. I said I'd take it, and try and yet it ; if 
 so, well and good; if not, I must have my money." 
 
 HtJd, that the effect of tliis evidence; being to 
 vary tlie note, and control its legal o])eration, it 
 was improfierly received, and that the rule for a 
 new trial should, therefore, Ix; made a!)solute. 
 
 /'(-/• Wilkins, .J., fZ/xvi /(////(/. -It having bc^en 
 foimd by the .jury tliat plaintitV did not accept 
 the order on (iraves in jiaymcnt of liis demand, 
 his remedy on tlie contract was not suspended 
 or aflfected by his taking tiie bill. 
 
 /».'//'-• V. Alhii, 1 X. S. I),. 101. 
 
 6. Vcrbiil asrceiiicnt as to when nolo 
 
 should become due -Inadmissible — Fraud — 
 To an action on a promissory note given for the 
 value of shares in a registered vessel, transferred 
 by bill of sale from plaint itF to the defendants, 
 the defendants set up as a defence an oral agree- 
 ment that the note should not become due until 
 the actual delivery of tiie iirojierty, wiiich, as a 
 matter of fact, had been seized in execution before 
 defendants obtained actual possessimi. 
 
 Ibid, tiiat the alleged agreement could not l)e 
 admitted to vary tiie terms of tlie defendants' 
 nncoiiditioiial written ]iromise. 
 
 Defendants acce|)t CI land regislcred tiie transfer 
 of the shares, and deiiiandiMl possession of \\\k 
 vessel, assertintr tlieir riglit as houaliilc owners, 
 yet they attempteil to set u[) fiviiid as an answer 
 to this action, not specifying whi'tliei such fraud 
 was against themselves or ai;ainst a liiird pai'ty. 
 
 H'lil. that defendants could not sustiiin the 
 verilict in their favor on this point witliniii >liiiw- 
 ing that they were imhiccil liy fiaud of the plain- 
 tiff as against tlieiiiselves to make tlie note in 
 (piestion. 
 
 Tinjlor V. .M.rni-lniu if. a'.. .'{ 1!. \- t'., !!»(»■ 
 
 Si( , f(/.>Yi. sii/ rfi, 111. 4, 1."), 17 and IS. 
 
 not be invoked to determine the liability of tjie 
 maker, aitiioiigh, at tlie time of making, llm 
 maker, a Xova Scolian, was lesidenl in Paris. 
 
 Thi Ml rrliniitK' liiiiik v. Slir/iinj, 
 \ R. Scii., 4;i!). 
 
 VI. IXDOMSK.MHNT. 
 
 1. Iii(1ors#>d by parties as President and 
 
 Secretary of a Company -Company not incor- 
 porated at time of indorsement - Evidence 
 of subsequent incorporation not admissible - 
 In an action lirouglit by indorsees of a promis- 
 sory note signed by defendants as I'resideiit ainl 
 .Secretary of a Company tiie.ludge of tiie County 
 Court found lliat at tlie date of the note the 
 Coni))any was not incorporated, and rcji'deil 
 evidence otl'ercd by plaintill' to show that at 
 the time of negotiating the note the Conip;iny 
 was incorporated. 
 
 The judgment for ))laiiitill' was appealed frmn 
 and the appeal dismissed. 
 
 Juri/lili </ a/. V. 1,'uir/i ;/ , / ii/., li R. \ C, L^l. 
 
 2. Indorsee v> Maiier .Motion to add 
 
 pleas refused — Defemlant was sued as maiier 
 of a promissory note drawn by him payable to 
 the order of L. .1. H.. ami indorsed liy thepayw 
 to the plaintill'. At lhe> tiial defendant moveil 
 to ameiiil by adding pleas sitting out that the 
 iiott! was niaile for the aeeomniodalion of tlk' 
 payee, \.i-\ The niotiiai was refused mid juilu'- 
 ineiit given for the jilaintilf on eviilence of llie 
 making and indorsement of the note, in tlieali- 
 seiice of any testimony on the jiart of defeinlaiit 
 in support of his jileas. 
 
 //(/«/. on ai)|ieal. thai the .ludge below was 
 right in refusing the amemiiiient moved for, in 
 the absence of any e\ ideiiee to show that the 
 defeiid.int would be ill apo>ilion to estalilish 
 the defelie'c he .sought to ilitlodiiee. 
 
 .■l/.<o, that the rejection of the ameinliiieiit 
 might hii\'e been good ground for a new trial if 
 it had been made to appear from atlidavit. nr 
 from the evidence given in the cause, that ile- 
 feiidatit would |irobalily lie ilia liosition to estali- 
 lish the defence sought to lie set il]i. 
 
 Tlir Hitlilh.f liaiihiiiii Co. V. (lilli^; 
 •_'i» X. ,S. R.. (S R. .\: (i.l. tilii. 
 
 V. FORKKiX L.WV, 
 
 I 3. Indorsement By ono of several exec- 
 utors of note payable to testator -Sulficieiit 
 1. Cannot aflTeCt note dated and to be used -I'laintiir sued on a piomi.'^.sory note made pay- 
 in this country -^ able tei X. M. or order, and, after his deceasi', 
 llild, that the note being dated at Halifax, indorsed to plaintilf by one of X'^. M's exi'cu- 
 and meant to be used tiiere - lieing given )iy one tors, and not by all of them. 
 British subject to another, and having no relation Held, that the indorsement was sutticieiit. 
 to foreign transactions, the French hiw could; Aliiwnx. t'ocX-, '2 Thoni., '-'ti''' 
 
20!) BILLS OF EXCHANGE AM) PROMISSORY NOTES. 210 
 
 4. Iiulorsenicnt Fopsery -Proceeds ap- iii^' m.iil wliioli .•loscii on tin; siunc dny. Tlio 
 
 propriated to use of insolvent Hrm Right of iIimwci' iivcr-litjld tlio Mil on tliiU il;iy, :inil a'so 
 
 holder to rank - ( Iniliani, tin' uotivi- nicinl>ir on a following iiiiiil day, ami, on the ■">tli N'oveni- 
 
 of the in-iolviMit lirni. made a luunlier of ]>roni- her. sold the hill for fidl value to the i)laiiititl', 
 
 issorv notes in the liini name in favoi' of one; who remitted it the same day. The liill was 
 
 'riionias Kraser, hy wiioni the notes ))inported aeeepted, lint the aeeeptor.s haviu),' failed heforo 
 
 to he iiiilorsed, lint the indorsements were all of it matured, defendants were sued as imlorsers, 
 
 them folded. The notes were prt.'seiited to the Defendants pleaded, among othei' things, that 
 
 ilaiuianls and negotiated hy (Irahani, who re- they were disehargeil of tluir liahility, hy the 
 
 eeived the umney on them, and a large ])art of delay in jiutting the hill into eir<ulation. A 
 
 the proceeds were appropriated to pai-tuersliip motion having lieeii made to set aside tlu^ pleas, 
 
 piu'poses. it wa.s oontended on behalf of defendants, that 
 
 llilif. that, although the I'.ank could not the <|Uestioii of undue delay or negligencushoidd 
 
 ciaiiii on the notes, it could rank fiu' the amount lie left to a jury. 
 
 of tlieui as money paid. j //,/,/_ netting aside the pleas, that the holders 
 
 Uilh. Mii»f r of driifidw ,{■ .UrKai/, ,(;:, ,,f ,|„. i,iii_ i„,i„j^, entitled to reasonahle time, 
 
 ■• "■ ^ ^ ■■> '—'' theic was nosuoh delay as to constitute a defence 
 in law. 
 
 5. IlUlorsCP -.ICfion against -ContradlC- .l.ihnstoue, K. J., was of opinion that the ca.se 
 torvevidenee-Prepondenmce -Action against was one whiih did not come within the 71st 
 ilrteud int as indorse!' of a proini.s.sory note made .section of the Practice Act (Revised .Statutes, 
 hy the tirni of ]•'.. H. & Sons. Two issues of fact .'{rd series), and that the defendants were entitled 
 Wire siil)iniltcd to the jury at the trial, and to suhmit llu'ir <lcfences to a jury. 
 
 t'nimd in 'avor of the defemlant. I'laintitf ////''''' ' ' «'• v. l\'i 'niori <iiil., I X. .S. 1)., ,"1(14. 
 appealeil fimn the lindings. 
 
 The evi.lence hcin- in some respects contra- ^^ IlMlOfSerS nOt liable as HKlkerS - 
 
 (lici.iry. hut the pr.'ponderanc.^ l.eing in favor Stranger to the note indorsiny -Liability of - 
 
 of defendant, the C.-nrt dismissed the appeal A proniiss,,ry note was in the following form : 
 
 with costs, and referred the cau.se back to the .. j;;]; ■|'i„.,.,, nuuiths after .late 1 |U'omise to 
 
 .liidi;e licfore whom it was tried, for liual judg- ,,,|y ,>^ \i 'p |> |> |,' \\" (• ,f ;^l '\\ [{ 
 
 ""'"'■ directors of the Liveipool Insurance As.sociation, 
 
 77,. ( ■uiKiiK rrhl li,i,ih- 0/ II V»(/.so/' v. liori/< ii, ,„. ,„.,i^.,._ ^,.,.^,|, |„„„l,.t.,l and seventeen (lounds, 
 
 •JOX. .S. R., (.S R. .t (i.), .-U.-); vahrn rc'cived. Liverp.M.l, .Ian. loth, IS.H," 
 
 • ' • '" '-i-'*^- iiiicl was signed by Archibald J. ('am)ibell, and 
 
 indorse<l by Colin Camplicll, .M. McLearn and 
 
 «. Indopseps become Insolvent and make dohn Campbell. The Directors di.l not imhinse 
 
 a comjjosition with holders Latter can only the note. The four parties to the note were sued 
 
 prove against makers, also insolvent, for bal- as maki-rs. Default was entered against Archi- 
 
 aui-e after deducting composition -I'laintitls bid<l .1. Campli(dl. The othei- tlirec pleadeil tliat 
 
 Well' hoMcis of a note madi- by I!. C. i\: Co. an<l they iiid not maile the note. 
 
 iu.lnrsed by M. R. >\: Co. .M. R. i*t Co. liecanu' H'lil. following, (Ininull v. Ilirh'i-I, .". Ad. 
 
 iii-iolvcut and ert'ected a composition at fifty I'ents and l-'llis, 4."ili, that tin: three defendants were 
 
 (111 tile (inlLir, including; their indorsenu;nt for not liable as makers, Wilkins. .1., '//sm /////i;/. 
 
 11. ( '. ,^ Co. K. C. it Co. also becoming insol- /'< ;• DesUarres, ,1. — The defeiidanti ought to 
 
 vciu the plaintitl's sought to prove against their be regardeil as guarantors ami declared against 
 
 esi.itc fill' the full amount of the note. on their collateral undcrtakinL,'. 
 
 ///'/. that they could oidy prove for the bal- Morion it al. v. Cnuijiln// it «/., Cochran, o. 
 .111CC afte!' dedtu'ting the composition received 
 
 tv in M. R. ,\: Co. j,^ Indopsement by stranger to note - 
 
 I hi Hiudo/ liritish Xorth Ann r„n v. Hnr,;,/, Subsequent indorsement by payee -Innocent 
 
 .{X. S. D., 41(1. holder -Defendant's two S(uis purchased a ves- 
 sel from one I'ettipas foi' which they gave their 
 
 7. IndorseP Liability or Delay in put- note payable to IVttipas, or order. The defen- 
 
 ting bill of exchange into circulation -Pleas — dant wrote his name on the back of the note in 
 
 Setting aside —Defendants, on the Stli October, the same ilirection as the writing in the body of 
 
 iHliS, iiiildised a bill of exchange drawn by S, S. the note inside, and it was afterwarcls taken to 
 
 oil H. it Co. of Liverpool, Kng., thinking, but Pettipas who wrote his name across the liaek of 
 
 not stipulating, that it was to be forwarded by the note. I'ettipas then handed the note to 
 
211 BILLS OF EXCHANGE AND PROMISSORY NOTES. 212 
 
 plaintiff to whom lie wiis imlclitud, iiiul pliiintifF 
 siieil the ilefeiiilant on the note, alleging that 
 I'eltipiis indorseil the note to thedeteiulaiil who 
 imhu'sed it to the plaintiff. 
 
 Ilild, that the jilaintiff could leeover the 
 amount of the note. 
 
 Ptr James, .].— 'I'luit plaintiff, not knowing 
 the factti, liad a right to assume that the note 
 WHS indorsed lirst liy I'ettipas and afterwards 
 by defendant. 
 
 /'()• Desllarres and Smitii, J-J.-^'I'liat defend- 
 ant, by placing his name on the hack of the 
 note and allowing it to pass into the lianils of 
 the payee, tr) l)e liy liim tiansferred to wiiom he 
 ])leased, waslial)le to plaintiff as liuna J'lli holder 
 without notice. 
 
 MrLniii V. <;ariii',\ ■_' i{. .S: C, 4.Sl> ; 
 •_'('. L. T.,-.'(iL'. 
 
 10. Indorsee — Stranger to note Not 
 
 liable -(i. W. B. having ])inchase.i a <|uantity 
 of goods from the liiin of 15. iC M., gave them 
 in payment therefor a promissory note made by 
 himself payalile to the older of 15. it M., ui)on 
 the ))ack of which the defendant for' the accom- 
 modation of ( !. \V. 15. iuul indorsed his luime. In 
 an action by ])laintill', s\irviving jiartnerof the 
 lirm of 15. it M.. against defendant, there being 
 no evidence of an intent on the part of defcml- 
 ant to stand in tlu' ordinary relation of an in- 
 dorser to the payees. 
 
 //'/'/, tiiat defendanc was not lialde. 
 
 Hums v. Siwir, :\ X. ,S. 1)., 530. 
 
 11. Indorsement, special Bill specially 
 
 indorsed cannot be transferred except by in- 
 dorsement — Replication to plea of indorse- 
 mer' -Tender — A liill of exchange drawn by 
 tile Amherst l5oot & .Shoe Co. on the firm of 1). 
 & Co. was indorsed " Pay to tiie order of the 
 Bank of NovaSootia, .\mherst," and by the agent 
 of the liank at Amlierst " I'ay to the order of the 
 Bank of Nova Scotia, Halifax, for collection." 
 The bill was accepted by 1). i>: Co., but was not 
 paid, and was returned to Amherst. While the 
 bill was still in the hands of the agency of tiie 
 bank there it was juirchased by defendant and 
 vas handed over to liini, but witiiout any in- 
 dorsement being made other than tlio.se already 
 on the bill. Defenihint being sued by plaintitl' 
 as assignee of 1). it Co., who had become insol- 
 vent for a balance of account due tiiat firm, 
 pleailed the liill liy way of setoff and tendered 
 an amount us the balance due the estate of 1). it 
 Co. 
 
 As to the plea of set-off ])laiiitiff joined issue 
 without replying specially. 
 
 //dd, pe.r McDonald, Smith and Weiitherbe, 
 
 J J.— That the bill having lieen specially indorsoil 
 to the bank could not be transferred to the ile. 
 fenilant except l)y iiidor.-cincnl. 
 
 Per McDonald, C. J., and Ritchie, J.— Tliat 
 if plaintitl' wisiied to deny the indorsement lie 
 should have replied sjiecially, and tiiat liy 
 merely jfiining is.^ue he could not put defendant 
 to proof of tiie indorsement. 
 
 Per Smith, Weatherbe and llitchie, .hi., 
 McDonahl, C. .)., concurring, that tlie teiidiii- 
 made by defendant was bad. 
 
 porii/>li V, Lniinim', ' \\. k (i., 14H; 
 7C. L. T., 174. 
 
 VII. INTER EST. 
 
 1. Determined by rate at place of pay- 
 ment—A verdict for ]ilaintiff for .S'JtiTft, "witii 
 interest." is a verdict on which juilgment iiniy 
 be entered up, though tlie note on whicii tin- 
 action was brought, payable in Boston, U. .^., 
 sjiecified no rate of interest ; tiie rate of interest 
 
 I at the jilaceof payment, at tiie time of tlie triul, 
 to be ascertained by a Master of the Court. 
 I Sour her if at. v. Il'a//acr, '2 R. vVc ('.. .MS; 
 
 ] I C. L. T. , .uii. 
 
 j On apiiKil lo th< Sii/mmi Court of CiiikhIh, 
 
 I Held, reversing the judgment below, iiilfr 
 
 alia, that the jury should have lieeii directed iis 
 
 to interest. 
 
 •2S. C. R.. :\%. 
 
 2. 'ind Rev. Stats., c. 82 - More than 
 
 legal interest —Penalty for taking— I'laiiititl. 
 with his lirotiier, tlie Rev. (i. P., entered iutoa 
 promissory note N'ov. ;{Otli, IStiT, by whicli tiiey 
 agreed to jiay to the order of I), it Co., the 
 defendants, .'?14(R), with interest, in one year 
 after date. When the note fell due, interest at 
 the late <jf six ])er cent, was jiaid upon it, ami 
 the note was allowed to lie over. On Dec. .'inl, 
 180!), plaintitl' paid another year's interest, witii 
 two per cent, additional, which defendants de- 
 manded for extending the time. 
 
 Hi Id, that the additional charge so niailc wms 
 within the prohibition against taking more tlwn 
 legal interest, contained in chapter S'J, Heviscil 
 Statutes ("ind .series), and that defendants weiv 
 liable to the penalties therein imposed. 
 
 Pattirsim v. />»//'»->- 1/ al., 3 X. S. D.. -■-■ 
 
 3. Usury Defence of-Evidence of usurj 
 
 — To an action on a promissory note ilcfciiiliiiit 
 pleaded usury. The note was expressed to he fur 
 the sum of C4(», but the evidence went to sliow 
 that defendant actually receivetl oidy i"3Si 
 
213 
 
 BILLS OF EXCHANGE AM) PROMISSORY NOTES. 
 
 214 
 
 iilthfuigli he piiiil inturcst upon the liu-Lfor iiiiioiint ' 3. Givcn b)" tclegraill -Proof - A judgineiit 
 
 foi- tlio space of two yeai's. . wii.s given for ileft'mlant in un iution hy iiidorssr 
 
 //./'/, that the transaetion was usnriou.s, ami , against inih)i-.see, there heing no proof of the 
 
 tliat )ilaintilleouhl not leeover. eontents of a notice said to have been sent by 
 
 Ilutihiiisun V. Dill, •! X. .S. D., 448. telegiapii, or of the telegram iiaving been re- 
 
 cciveil. 
 
 4. Isurj Defoiicc of - Xo evidence of ''I'lgnHMt sustaine.i. 
 
 loan —Action l)y indorsee against maker on a-, MrLtuii v. (larniii-,'i It. & (;,, 270. 
 
 ]iroMiissory note expressed to l)e for the amount | 
 
 .,f f4fi Ills. M. Defence, usui'y. The note had ' 3. Walver of Adiiiission of liability— 
 
 l)cci] transferred from the jiayccs to the ])laintitr Verdict sustained with costs, thougli declara- 
 for the Slim of CM. it liciiig tlicii overdue, and tion alleged notice, and evidence only showed 
 (icfi'iidant's lial)ilit\- iipfin it aiiKiuntiiig, witli waiver— In an action against dt'fcmlant as in- 
 interest accrued, tr) i'4'J 13s. .'jd. 'I'liere being dorser of two promissory notes, tlie defence 
 iiothiiiL' to show tliat the transaction partook in . rcbed on was want of notice of dishonor. The 
 any degree of tiie nature of a lo m, and tlie jury evidence of notice was insiitticiei'.t, but defendant 
 h;iving found that it was in fact a hnun litl, sale ' admitteil that he otl'eied to settle the notes in 
 uf tlic note for what the parties considered its another w;iy tiian liy payment, 
 iiiaikct.dile value, /Jilil, that tills oiler was evidence of an admis- 
 
 //./•/. Wilkins, .(., ili'.^.<, ii/lii./. that liie L'sury f*'oii of lial)ility aiiKUinting to waiver of notice. 
 Act iiad noapiilicatinii.aiid that plaintiU'siioiild Tiioiigii the dechiration alleged notice, and 
 recover the t'liil aniomit. evidence oidy juoved waiver of notice, the t'ourt 
 
 llVe. /')'■/■ V. 67(> >/'//,•_' .\. .S. 1)., 4<.l. lefuseil to distiirli tlie verdict or lo deprive 
 
 plaintill's of their light lo costs. 
 
 Watirinit h'lii/iiii' Co III I'd II ;/ v. ('Iirl.ifli', 
 
 (» K. iV: (1., 10!) ; 
 OC. L. T., 441. 
 
 Mil. XOTICK OF DI.SHOXOR. 
 
 1. Dishonor of note n^lven in payment by 
 
 agents tor goods sold to principal -No need 
 of notice of dishonor to principal, he not being 
 a party to the note —Conditional payments - 
 riiiiiitilf .sold to defendant a i|uantity of hides, 
 .«oiiie of which, under the defendants instrnc- 
 tioiis, were delivered to his agents, A. & Co., 
 who gave to plaintitl' their note for the amount 
 'hv him. Plaiiitill' tiiereupon entered in his 
 hiiok : ••.Settled by note of .^I'J;)." A. iS: Co. 
 having become insolvent, the note was dishon- 
 
 (ItVil. 
 
 //'III. tiiat tiie jury were not warranted in 
 loganling the entry in plaintiH's book as evi- 
 ilciKc of anything Iml a conditional jiaynient. 
 
 .!/"'/, that defendant not being a party to tiie 
 note, tiurc was no necessity to give him notice 
 of dislionor. 
 
 Aiiilirxnii V. An-hihahl, W X .S. |»., 88. 
 
 2. ForeijcR iiote-Notioc must state that 
 
 note has been protested— .A ))i..missory note 
 iiW'lf ill this Province, and payable in .St. John, 
 N. !>., is a foreign bill. 
 
 When tiie notice of dishimor does not state 
 tliiU a foreign bill has been protested, the in- 
 tlorser will not be liable. 
 
 Muiuy v. I/all, '2 'I'hoin., 401. 
 
 l.\'. I'LKA1)I\(;.S. 
 
 1. Action aj;uinst two out of three makers 
 
 —Declaration must allege that maker not sued 
 is out of the jurisdiction When: plaintitl' sued 
 two out of three makers of a joint and several 
 l)romissorj note, alleging the making by the 
 third, but not alL-ging that lie was out of the 
 jurisdiction of tin Court. 
 
 //'/'/. that this was a fatal objection to ])lain- 
 
 titl's declaration, and that it did not rei|uire to 
 
 be j)leaded in abatement or raised by demurrer. 
 
 A'»vv.// V. (;rriiit If fil.. •_' H. .t C., 409. 
 
 2. Action on notes with a count for trauA 
 
 Subsequent insolvency Plea puis darrein 
 continuance and protest that there was no 
 fraud -Plaintirt' brongjit an action, February 
 ■JOtli, 1870, on two promissory notes, with a 
 count for fi'aud, under section i.SOof the Insol- 
 vent Act of 187."). Defendant )iuil becr)me in- 
 solvent in December, 187."), and obtained from 
 his ereilitors a deed of eoin)>osition ami discharge, 
 which wasduly contirmed .September Kith, 1S70, 
 jneviously to which date plaintitl" had accepted 
 a composition on the notes sued on ; but [ilaintitT 
 had not signed the deetl. Defendant having 
 pleaded March 8th, 1870, added a plea .Septenil»er 
 
21; 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 116 
 
 'i.'itll, 1S7S. sftliliLT il|i tlifilccil iuiil tilt' iii'copt- 
 aiK'c of a cfniiixisitioii, Imt diil tint jilead the 
 (liscliiii'gc /iiiii i/iimiii (■■ '^'iiiiiaiiri . liis cinmscl 
 iippfolu'liilitiLr tliiit till' ('ileit lit sncli ii plea 
 would lie to coiifi'ss tlip ffaiid iliaiircd in tlic 
 dcclai-atioii. Tlio cause wastficcl in A|iiil. ISSd. 
 \v1k'i\ a vei'dlrt was found fof tiic plaintifl" fof 
 the liiilaiicc of tin- iioti's sued on, Init tlio jmy 
 ai'f|uitt('il the ilefendant of the eliai'gc of fraud. 
 Defendant tiien tool< a fule ///•</ to stay ])foeeed- 
 ings, on tlie ground tiiat tlie delit had lieen 
 (liseiiai'god. Rule ///>/ disohai-god with eosts. 
 
 Pr/- Ritchie. K. ,r., tiiat the defendant coiihl 
 have ])leailed liie disc lai'ge /)»/.< ilitrniii rniititiu- 
 niicc. with a simple protest that there was no 
 fraud. 
 
 //'irriiKjioii V. Wtttir. 2 R. ^t f!., 183; 
 
 1 C. L. 'P., t)«3. 
 
 3. Count for money paid Kecovcry on 
 
 where failure to recover on note -The notes 
 sued on Mere given in lenewal of a ])revious note 
 wiiieli was given in consideration of plaintifl".s 
 retiring a liill of evcliaiige on which the defen- 
 dant was lialile as di-awcr. 
 
 //(Ii/, that if the plaintilTs could not recover 
 on the notes they oonld recover on the count 
 for money paid, which was the original consi- 
 deration. 
 
 Sntilfii r (t (tl. V. ]V(tll(tc' itnl., 
 
 •JON. S. R.. (,S R. X- C), nOO- 
 The decision in this cas'o was aliirined on ap' 
 peal to the Supreme Court of Canaiia. 
 
 W'nlUirr V. SoHf/i't: !t ( '. L. T., "210. 
 
 4. Dorlarnlinn Indorsee v. maker -In an 
 
 action on a promi soiy note, iiy the imloisee 
 against the liiaker. the declaration should allege 
 that the note was indorsed liefore it liecaine 
 due. 
 
 Cli!i„iiri,i V. /i'<Vc/,/, , -J Old., 710. 
 
 5. nefenoe of a.i;reenient with payee 
 
 Wliere the .Ictciiilant in suili an action rcjii's on 
 an agreement with the (layee as a defence, the 
 plea shoidd allege that the note was inilorsed 
 after it hecame due. 
 
 6. Defence of no eon.slderntion - A general 
 
 plea of no consideration or no value, not stating 
 
 the particular facts v.iiich show the want of 
 
 consideration, is good in this Province. 
 
 ThUI. 
 
 1. Defence to action on note, where de- 
 fendant admitted something due thereon, 
 allowed to stand, upon defendant's paying 
 into Court amount admitted due — Plaintitl' 
 
 .sued on a promissory note for .^TO.'J."). aiil ijc- 
 fendant pleiideil the usual plea.s, denying tlie 
 making, consideration, etc. I'laiiitifl' a|i|)liL(l 
 at ('hamhers to have the jileas set aside as false, 
 frivolous, and vexations; and in ojiposiiig his 
 motion, defendant ])idduced an atlidavit, in 
 which he admitteil indebtedness to the niiiomit 
 of >-'4-. 72, Imt no more, and alleged that iii.s 
 ])leas werj not jileaded for the purpo.se of dclny, 
 Imt that justice might he done. The .liiilgc at 
 -Chandlers .set the pleas aside, and dcfciHJant 
 appealed, 
 
 //< /'/. that t he apjieal wouhl lie sn.staiiieil, pin- 
 viding tlie defendant jiaid 842.72 into ('imrt 
 within ten days. Otherwise ])laintill' shoiiM 
 retain his judgment. 
 
 Bill V. Ciilman, ;? N. S. I)., ;).V.'. 
 
 8. Joinder of Count on biii of e.vrhanKe 
 
 with one of a criminal nature -3rd R. S.. c. 
 134, s. lilt -Insolvent Act. 1869, s. 92- 
 Demurrer -t'hd R. S., s. ll!t, c. 134. in refer- 
 ence to joinder of clitl'erent causes of action in 
 the same suit, ajiplies only to civil suits, and nut 
 to proceedings of a mixed civil and ciimiiuil 
 nature. 
 
 PlaintitVs fourth count was as folkiws : "That 
 the said hill of exi'hange and jiromissory antes 
 aliove declared upon v.ere cliscounted hy the 
 plaintitl, and the money advanced to theciefenii- 
 ants therefor was so advanced upon the icpiu- 
 sentation of tlie said T. (1. IJudd, that the saiil 
 tirni of ^Vln. F... l)odge cV: Co., the defendiuils, 
 hail assets to a large amount over and almvc all 
 their indehtedness at the time .said advances 
 were made, and the |)laintitl' says, that in tiuth 
 and in tad. the said \Vm. L Dodge i*c Cii.. the 
 defendants, had no such assets, as the said T. 
 (i. lludd well knew, and the .said defcmlaiits 
 olitaineil the discount and advances dcclartil 
 upon liy false and frivolous representatimi.s, ami 
 under false pretences." 
 
 //<l(l, had on deiiunfer, 1st, because itdiil net 
 alleg" "hat Rudd obtained the discovuil ami 
 advances on the bill and notes di'clarcil iiimn, 
 with intent to defraud the plaintitl'; 2iiil. he- 
 cause it did not allege that the debt hail nut 
 been jiaiil; and 3ril, because it did not allege 
 the otl'ence charged agiunst <ir act connuitteil liy 
 Riidd to be contrary to the statute. 
 I The Bank of /irih'sh Xorlh Anin'i'n 
 
 \ V. liudd ft al., 3 X. S. I)., 97. 
 
 0. Joint and several note Four promiS' 
 
 sors -One dead— Three sued— Fact of fomth's 
 death not alleged —Defect how taken advan- 
 tage of— Action was brought on a joint ami 
 ; several promissory note made hy four promts- 
 
i\: BILLS OF EXCHANGE AND PllOMLSSORY NOTES. 218 
 
 surK, "iif of wlioiii Wii« ili'iid. Till' Hclioii was liy ii third |iiiit_v 'iinl iissiniicil tn (luffiiiliiiit 
 
 |ji(iuj;lit iigiiiiist tlie lliii't' .siii\iv(ii-.s, llic lU'claiii- ul'ttT llu; iiiiiiiiuiui'iiK'iit of i)laintitl"s aitinii. 
 
 tiiHi Mttiii;.,' nut till' iiotu as iiiadi' \i\ tin: lliruo /A /</, tliat tlic plra was liad. Iai'Ii il (iliMil- 
 
 iltft'ud lilts, iiaiiiiiig tliuiii, " Ingutlic'i witli ciiiu ulile the jik'a CDiild only lu' I'l tlio fiiitliur 
 
 Jdliii Niiss," tliu deceased promisor, luit it did iiiiiinteiiaiice of the aition. and not in liai to tlie 
 
 iiiil iidd tiiat he was dead, or .sliow any reason whoh' aetioii. Assiiuiiiig tiit'assi;.'iiiiHiil loliave 
 
 «hv in' liii'l iKit lieeli made a defendant. A heeli in j^ood faith, clcfeiidaiit iiiJL;lit |Hissil)|y 
 
 vii'lirl uas taken for phiilitilt liy eoliselit, and a , have got the iieiieli' of i; on appliialion to tliu 
 
 mil' to set it aside. coiiil in tiie exercise of its eijuitalile jiirisdirtion. 
 
 //./(/. that tile ohjeetion was one tliat shoidd A/r /),„ii,/,l v. A'. '■'//', 4 I!. \ C, i!)l. 
 
 Iiiivc lieeli taken liy plea in alialeiiient, and could 
 
 iiitt lie made a ground of ohjeclion to the verdict I 
 
 t'lililaintiir. X. I'ltlvSKXTMKNT. 
 
 M<K,,,i V. A'f/.v, ;( U. it C, •_'.-i(i. 
 
 1. Evidence of Notary TroJest I'laimitl' 
 
 10. Xollce of non-aCt'Cptailt'C Dt'IIIUrrer hroughl action against defendants as indoiser.s 
 for failure to allege — I'laintitl's, as indorsees, of a foreign hill of exehiinge due Felniiaiy l.'Uli, 
 suiil defendant as drawer of a foreign hill, al- ISTT. The Notary who protested the hill gave 
 lei.'iiig that the hill was duly ]iresent(^d for le- evidence that he cleinandeil ])aynient, and pro- 
 (ijilaiicc and dishonol-ed, and ilefendant had tested it on the l.'ith. He denied that he had 
 lint any etlects in the liand.s of the drawees, nor , recei\ed it hefore that dale, and declared that 
 any leasonalile ground for expiM'ling that he he was not at the drawee's ))lace of hioiness on 
 wnuM have, or that the hill would he honored, ■ the I'Jth, hut the note on the hill " l'"eliiuary 
 ami that defendant hail sustained no damage liy 1 Kith," had originally heen writicii l-'ehriiary 
 icasoii of having no notice of the noii-aeeeptance. ] rjih. A jiiotcst was ]iia in ]iroof, dateil l-'eh- 
 Dcfiiidaiit deimirred on the ground that ])laiiititi' ruary l.Stli, without the Notary's seal of otiiee, 
 was hi mild to give notice to defendant of non- ' and also a jjidtest dated Felnuary I'Jth having 
 uirciitaiice, or hold the liill till due and again i the .seal atlixed. The lattei- had heen sent with 
 ini'si'iit it for payment hefore suing, ami to ' the hill to the plaiiililV, and their attorney 
 allege accoi'tlingly. Demurrer overruled. then corresponded with the Notary whose ex 
 
 Staiitii r <l itl. y. Ifoirall, ',\ M. is. i'., -i'u. planation led him to sup))i>se that a clerica. 
 
 error had heen made, whereupon he enclosed to 
 
 11. Payable at particular place -Action the Notary the protest of rdiruary i-Jth, with 
 
 by indorsee against indurser Necessary to the draft attached, and the Notary afterwards 
 state place in setting out note in pleading- returned the new protest amended, dated Feh- 
 Alsc presentation and notice of dishonor In ruary l.'ith, and the old jirotest of Feliriiary 
 an action hroiight hy plaiuliff as iiidor.see against 1-th. 'i"he Notary in his evidence said nothing 
 ikfciiilaiit as indorser of a promissory note, it of this corresj)ondenee, and failed to explain the 
 appeared I hat the note was made payahle "at erasure of " I'Jth " ahove referied to. I'hiintitf, 
 the Merchant's Hai k, Hawkeshury."' There was on the trial hefore a Judge without a jury, 
 luiallegiition in tie statement of claim to show aeeejjted a non-suit with leave to move, and 
 that the note wai- made payahle at that place, the Court, after argument, discharged the rule 
 or that it was did,' presented for payme.'it there, for a new trial, holding that the evidence of 
 or that any notice of dishonor was given to ^ the Notary lieing mireliahle proof of a due 
 (lefeiiilaiit. presentment had failed, and further that the 
 
 llilil, that in the alisenee of such averments ' protest of Fehruary 13th was defective for want 
 ami ]iiiiof, plaintilf could not recover. ' of a seal. 
 
 .l/-r), that under the present system of plead- ■ The Merchaii'"' Hank v. Spiwn;/ <t al., 
 
 iiig it was not ineumlient upon defendant to ' ' '•' '"• 
 
 ileny facts essential to plaintiff' « right to recover | ,^ ^^^ payment-//'/'/, that as it was proved 
 mile.«s such fauts were alleged in the statement | j|,,^^ ^,,^ „„j^, ^^.^.,.^ i„ pUuntilFs oliiee, where 
 
 of chinii 
 
 /;/v. O(//u:.'<,'.>0N. .S. R., ( 
 
 9c.L.T.,i2o.!;™;:^;,^; 
 
 I they were made payahle at the time they be- 
 />»•//«,/ v. «///,',..,•.>() N..S.R.,(SU.&(i.),4-.>;}; I ^.,^„,g j,,^.^ „„ „t,,^.,. j„.„„f „f presentation was 
 
 I 
 
 Sontht-r </ al. v. Wnllai'i' at al., 
 
 12. Plea of set-off arising alter action on 20 N. s. R., (8 R. & o.), 509. 
 
 note-To an action on a promissory note, defen- 1 Affirmed on appeal to the Supreme Court of 
 
 ilant pleaded, hy way of set-off, a judgment Canada. 
 
 for a greater amount recovered against plaintitt', i WcUlare v. Souther, 9 C. L. T., 210. 
 
219 
 
 HILLS OF EX(;HANCJK AND PROMLSSOKY NOTES. 
 
 220 
 
 3 For pajmcnt AKt'iiry of Ituiik lioldlnjr 
 
 note for collection Two pioiniMsory imtcs m.iili' 
 payiililf lit the liaiiU iif \ipvii Scot ill «frc placfil 
 ill the liMliils cit' tJR' ii;,'i'iit (if the liulik <it Kent- 
 villf fill- iiilUiliciii. 'I'lif agflit ti'stiliuil thai the 
 iKili'S ill c|iiistiiiii " iM'if ill the heail (iltiie lit 
 Halifax wiieii the;, hci aiiif diie, ami aftef they 
 bocaine line W'.e letiinieil tome." 'I'lieie wa.s 
 no eviileiiie that ihedefeiidaiit or anyone repre- 
 sent Iiil; him «as at llu' place where liie liote.s 
 were made payahU' to m(!et his eiii;agenieiil. 
 
 Hi III. that tiie liaiik. iiniler tiie evidence, was 
 the u^reiit of tile payee to rcceivt^ payment and 
 not of the m.iker to |iay. 'I'lic jndgmciit for 
 plaiiitiir helow was conliiined and the rule dis- 
 charged witii costs. 
 
 I'lilhii V. Siiii/oril. » It. X- (1., •_'4--'. 
 
 4. Plea traverslns Evidence -In an net icn 
 
 liy the indorsees against tiie indorser of a ]ii<i- 
 niissory note the defendant pleaded, traversing 
 the allegation of picseiitnieiit. The mes.sengcr 
 of the hank that iield the note .swore that he 
 presented it at defendant's otHce, where it was 
 jiayalile, lictween .'{ and l p. in., when said otHce 
 was closed. The defendant denied the jiresent- 
 inent and deiiieil that the ollice was closed, Imt 
 did not deny that he had been inforiiied of the 
 presentment next day, and he did not deny or 
 refer to the staleineiit of one of the [ilainliirs 
 that on his showing the defendant the notice of 
 dishonor the defendant had iiromised to give a 
 good note in nlace r>f the dishonored one, or else 
 sujiply good.? to the ainoiint of it. The County 
 Conrt .Judge .set aside the plea as false, Sec, on 
 the strength of the uncontradicted evidence of 
 this promise, 
 
 Jlild, on apjieal, that the only (|iiestion for 
 the Court under the pleadings was whether the 
 note had heen actually presented, and that 
 plaintitl's could not he said to have estahlished 
 the fact of presentment as there was a contra- 
 diction. 
 
 Eniiis ii (il. v. Fo"/!)-, 1 K. it <!., 60. 
 
 XI. STAMPIXt!. 
 
 1. After making by agent - Plaintiffs 
 
 brought ac'tion as indorsees of a promissory 
 note made by defendant, indorsed by Collie & 
 Spencer, for whose accommodation it had been 
 made, to ('. J. Morton & Co., who indorsed it 
 to 8ylvanus Morton, by wliom it was indorsed 
 to the plaintiffs. The note was stamped to the 
 full amount required when it came into the 
 plaintiff's hands, but it had no stamps on it 
 when signed by defendant, who swore that tiie 
 
 initials on six of the nine stamps appeari^ig on 
 the face of tiie note were not his initials, ainl 
 had not lieen placed there by his antlMniiy. 
 He statt'd, however, on cross-exaniiiiation, llmt 
 Collie said w lien the note was signed tiiat lie 
 would put stamps on it at his ollice. To ilijs 
 defendant made no objection ; and Coilii! sW(]iu 
 that the initials were made by a clerk in hU 
 ollice on the very day llie note was signed. 
 Hi III, that the note was legally stamped. 
 
 JJiifti" 1/ al. V. MiLkiiii, -.l \{. ,\i ('., -J.V.I. 
 
 2. After (rial begun iMaintiUs, as snouas 
 
 the defeil in the stamping of tiie note sued mi 
 was discovered, allixed double stauijis to ji in 
 opi'ii court. 
 
 llilil, Wilkins, .1., ili'i-ti iilidij, that nudcr s, 
 I'iof c. !l of the Uoniinion Acts of 1S(!7. tliey 
 had satislied the retjnisites of the Statute. 
 '/'/(( Bank of Noni Sfodn \. Chl/iman, 
 
 •iX. S. 1).,4;!S. 
 
 3. After acrcptanre and indorsement- 
 
 Pleading -Defeiidiiiit pleaded as a set-oil to 
 plaintitf 's claim a l)ill of exchangt^ acce[ite(l hy 
 plaintitf and indorsed to him. Plaintill' replied 
 that the bill at the time of its acceptance ami 
 indorsemeiit was not stamped according to law. 
 Defendant deiiiuiled. 
 
 JIilil, that the replication was good, and that 
 if the stamps were allixed after the acceptamii 
 or indorsement, it was for ilefendant to ivjciiii 
 the facts which jnstilied him in .subsei|Uemly 
 aliixing them. 
 
 linihrd al. v. Emnx, .S X. S. 1)., 171. 
 
 4. Agency for purpose or stamping- 
 
 I'laintilf .1. H. Trooj), along witi/ C. .1. Tiucip, 
 
 maile a note to defendant for a delit due to 
 
 defendant by C. .}. 'I'roo]). The jury found tliat 
 
 there were stamps on the note when signed. It 
 
 appeared that the stamps afterwards became 
 
 detached and defendant said, " I afhxed the 
 
 stam|)s to the note wlu'ii it was lirought back to 
 
 me by C. .1. Troop and obliterated the stauijis.'' 
 
 This was not done in plaintilf's presence nor liy 
 
 hi.s direction, nor by the direction of C. .J. 
 
 Troop. 
 
 Hilil, that although the assent of C. J. Troop 
 
 might be implied, he could not be accounted the 
 
 agent of his surety for obliterating the stamps, 
 
 and that neither his direction nor his a.ssent 
 
 would have satisfied the Statute 31 Vic., C. 9, 
 
 1867. 
 
 Trooii V. Troop, 3 R. & C, ."ifiS. 
 
 5. Alteration In erasure of stanips-Pre- 
 
 sumption against— On a note dated May 2/, 
 1873, the stamp was cancelled by writing thereon 
 
221 
 
 HILLS OB' EXCHANGl-: AM) PROMISSORY NOTKS. 
 
 222 
 
 '21. •"'. "•'• It :i|i|H'iU'(Ml cm tlic t'lUf cif the stamp 
 iis if tlir liL,'iiri' " .'< " liiul liccii Miitti'ii iittiM' the 
 '■L'," iiiiii ii lien illiiwn tlM'iiii,L;li it, Imt llic "7" 
 aiiiiiMiiii iiiii'iiisiil. It w.is ill cviclciicc, uiicoii- 
 
 |l;li|i( Ird, tliat till' lll(tl\ wlu'll |lllSl'llt('il tl> 
 
 iiliiiiilill lin'iliscouiit, wasstiiiiijii'il lis it ajipeaii'il 
 oil till' tiial, anil tlii:ri' was iiii ])lt'a alleging a 
 tiMiliiilli'lit alti-iatinn. 
 
 //./i/, til, It t lie ( 'dint rciuM nut pri'suiiiit that 
 ilif .-I, imp hail lii'i'ii ))r('\ imisly usiil nn an iii- 
 striiiiiiiil ilali'il '-'.'^rd May anil framliilenlly 
 ic iiM'l. ami that the veiilict taken fur plaintill' 
 liv . I'lisi'iit must staiiil. 
 
 Miinlorli V. fm-'ir •! n/., I U. .'^ ('. , .'{(l.'t. 
 
 (>. it) payee Jitter deliver} Note Inad- 
 
 inissilile asacknowlecljpnent to har the statute 
 - Etl'ec'i of paynicntH by indorser in action 
 against maker Account stated --I)ofenilanl 
 luiide a note of hanil to S. , wliieh was inilorseil to 
 |]l;iiiitill, who received payments cm account of it 
 fidiii time to time from the indoisei . I)efeii(lant 
 made no ])aynients, hut after six yeais from the 
 ilate of the note made a new note to jilaintill 
 for the halaaee due on the original note, the 
 stiiini) on whieh, hearing date identical with the 
 ilate of the note, was for the single duty, and 
 was alllxcd liy jdaintiir on the day suliseijuont 
 to the delivery of the note to him. 
 
 Ilil'l. that the stamiiing was insutlieient, and 
 that the note could not he I'eeeived on the trial 
 as an ackiiow ledgment to take the case out of 
 the Statute of Limitations; that the payments 
 hy tile iiidorser did not inure to prevent the 
 o])eiiitioii of the Statute as against the maker, 
 iiiiil that the mere striking of a balance as be- 
 tHceii the parties did no' '-.nstitule an account 
 i-tated to take the case out of the .Statute. 
 
 Mil'uirithji. V. Iliiiitn; li K. \: C., '2H9. 
 
 1. Cancellation of stamps— A promissory 
 note \\as duly stamped, but the maker had, by 
 Wiiv of iiuicelli.ig the stamps, simply written 
 liis initials upon each stamp without aildiiig the 
 ihite. 
 
 JIdd, a sutticient cancellation. 
 
 MiX(i/\. M,-I„tosli, -iX. S. D., (57. 
 
 8. Cancellation of - What sufficient — 
 
 '\liere three stamps were affixed to a note, the 
 three making up the amount of stamp duty 
 piyahle on it and the figures 5, 16, 73 corres- 
 ponding with the date of the note, were written 
 across the three stamps (which were affi.\ed one 
 alwve the other, the middle overlapping the 
 iower one) so that a small portion of the tigure 
 5 " and nothing more could be discerned upon 
 the lower stamp. 
 
 H'ld, that the stamps were sntiieiently can- 
 cel led. 
 
 Miiiilu,!, V. /;. ir..//; ./ '(/., •_' K. >V ('., '-'SO. 
 
 0. Defective Kecover) of amount of ron- 
 
 Hideration on a count for account stated. — 
 
 Where a promissory note is defect i\e for want 
 
 of a stain)) the plaiiitilfmay recover the amount 
 
 of the consideration on a count foi- account stated 
 
 not withstancling that the consideration is for an 
 
 interest in land. 
 
 /•'/v«/ V. Iii-ii(iiii)i,;\ \. ,S. I)., 40. 
 
 10. Double stamplngafter repeal of Stamp 
 
 Act — Right of— At the time the note came into 
 the hands of plaintitf it was insulliciently 
 stamped, and plaintilf, iniinediately on becoming 
 
 i aware of the defect, atlixed double stamjis. 'I'he 
 Dominion .Stamp Acts, including the Act in 
 reference to double stamjiing, were then rejiealed. 
 Jt was contended that the note was void for 
 want of proper stani|)s, and that by the repeal 
 of the All, the right to double stamp had been 
 
 I taken away. 
 
 I //ihl, that the note was propcM'ly double 
 stamped by phiintitf, and that the objection to 
 
 I his right to double stamp could not jirevail, the 
 right to double stamp continuing not withstand- 
 
 ! iiig the Act. 
 
 ' Mi-Iiilosh V. .]/<■/.< 0,1 ,/ f//., (i R. Sc C.., I'JS ; 
 
 (iC. L. 'i'., 749. 
 
 I 11. Double -- Alteration - Action was 
 
 ! brought on a bill of exchange clrawn by defen- 
 
 I dants. The bill with the acceptance was proveil 
 
 j and read without objection. « hen plaintiff rested, 
 
 whereupon defendants moved for noii-suit on the 
 
 grouiicl that there was no evidence of stanijiing, 
 
 and because of an alteration unexplaiiu'd on the 
 
 face of the bill. I'lainlitf was then recalled 
 
 and gave evidence as to double stamping and 
 
 cancellation. Defendants gave evidence as to 
 
 altciation in the bill, contending that the date 
 
 I had been altered from L'7th August to 17tli 
 
 I August. After the plaintitf had been called to 
 
 rebut, the .Judge jiropo.sed to si'bmit to the 
 
 jury the view that it plaintilf hail received the 
 
 bill from the acceptors he would be entitled to 
 
 recover because it would be impo.ssible for the 
 
 alteration to have taken place after the bill had 
 
 left defendants' hands and before it reachwl the 
 
 plaintiff and became an available bill but if 
 
 , from the defendants he could not. Plaintiff's 
 
 counsel then said he would submit to a non-suit, 
 
 and the Judge gave liini a rule to set it aside. 
 
 Held, that the view whieh the Judge pro- 
 posed to submit to the jury was incorrect, that 
 I plaintiff waa not precluded from moving to set 
 
2-->:i 
 
 HILLS OK KXCHAXUK AND I'KOMISSOIIY NOTKS. 
 
 i-n 
 
 till' 111)11 siiil M^idc and tliiil llic fvidilirc iis tii 
 alti rat ion of tlic iliiti' ami caiiii'llal jnii ni ilic 
 8taiii]is was I'lir ilic jury. 
 
 Ihniti-ilh V. Ddii,, ,1 (il., 1 I!, it (i., I.")!>. 
 
 Vi. Double Ihioi. Acts 1m;(», (np. la 
 
 Wlii'if I Ik |ilaiiilill Ipciii;,' the payi't' "f ii liiU of 
 <'Xiliuii^;t', iliawii ami aiccptcil witliniit liriii;; 
 (*taiii|Hil. « as iiiiawaii' cif 1 lie necessity <it stanips 
 lii'ilig allixeil t(i I lie Kill at tiie time of reeei\ iiij; 
 it, lull at'terwanls iliseov ci ilii; tlie neeessity ut 
 the staiii|is ami their ealieellatiun, allixed staiiipH 
 to doillile the aiiMiiiit of tile proper duty hefoie 
 aetioii liidiiutiit against the aeeeptor. 
 
 Hi III. that there was a sutlieieiit eoiiipliaiiee 
 with the terms of the Stamp Art.. Cap. !• of tiie 
 Aets of iMiT, as aiiiemldl l)y Caji. l;{ of the .\ets 
 of Is7t» (the Art of 1S74 not l.eiiiy in force when 
 action was liroiiglil ). to lencU'r the hill valid and 
 Miistaiii the action. 
 
 MrL'ihiii V. li,ith,\ 1 i;. A: f., ;(,-.. 
 
 13. lloiibic by parly who became liQider 
 
 at time of making Consideration I'laiiitill'l 
 representing himself to he the agent of owiiur.s 
 of land which defendant had oeenpicd as a 
 sipiatter for twenty six years, iiidmed defeiidiint 
 to sign several promissory notes stating that he 
 Mould give defendant a deed of the land, defen- 
 dant to give him a mortgage for halaiii'e of pur- 
 chase money. l)efenilaiit never received the 
 deed nor gave the mortgage. 
 
 Ill III, that the plaintitV had failed to jirove 
 consideration for the notes. 
 
 Ill III, also, that although there was no plea of 
 inse'licienl or illegal .staiii|)ing, yet, as evidence 
 of illegal stamping had heen received at the 
 trial without olijection. the <iuestion of the 
 legality of the stamping was for the considera- 
 tion of the Court. 
 
 I/ilil, uho, that the notes not heing originally 
 legally stamped that the plaintill' as he lieeanie 
 liolder, if at all, at the time of the making of 
 the notes and was therefore cogni/ant of the eir- , 
 cuinstaiiees surrounding their execution, could | 
 not validate them hy tlouhle stamjiing under 
 Act of 1870, Cap. i;i, Siih-.Seetion I'J. \ 
 
 IVattr-i v. MiCiilloch, 2 H. & ('., 74. 
 
 14. Double by payee-Cannot cure defect! 
 
 — The payee '.n a note not legally stamped at | 
 the time of iii'iking it could not cure the defect 
 by subsequent double stain|)ing umler Sec. 12 
 of Cap. 14 of the Dominion Acts of 1870. 
 
 Exson. t:f id. V. Oain/iliull, '2 R. & C, 577. 
 
 15. Double ~ Replication ot to plea ofi 
 
 defective stamping — Defendant pleaded defec- i 
 
 ti\e stain) ling and cancella'ion, to which |ilaiiitiir 
 did not reply, and on the trial the cashier of tlic 
 |ilailltill' li.ilik double slampeil the note, and in 
 his e\ idclice stati-d tiiat he hiid just then lie- 
 lome .iware of thi' ilefect of stamps. 
 
 //'''/, that the cashier was the |ierson «liM>f 
 knowledge was to be tested to dcteimiuc' tlic 
 right to ilonble stamp, and that (although /nr 
 \'oiing. ( '. .1., the more prudent course was to 
 reply the double stamping) the want of a repli- 
 cation was not sutlieieiit ground for a new trial. 
 Till .Miiilmiil'i' llaiihw ■'^/ir'iinj ; 
 I U. >\: <;., 4:!ll. 
 
 lA. Too late to object to Insufllclcncy 
 
 after note read in evidence .\ftcr a pioinis- 
 sory note has been read in evidence it is loo late 
 to object to the iiisutliciency of the stamps. 
 
 .^oiitli. ril III. V. Wdlliiii, •_• It. .V C. .".IS : 
 I C. b. I',, .Vi(i. 
 The jiidgmi'iit in tlii.s case was reversed on 
 appeal to the Suiireine Court of Canada. 
 
 ii'((//((c, V. .Soiiiiiir ii III., •_' s. c. |{., :m. 
 
 MI. MI.SCKLLAXKOU.S. 
 
 1. Company Note indorsed by oil]cer.s of, 
 
 before incorporation — In an action brought liy 
 indorsees on a ])roniissory note signed liy 
 defendants as I're.siilent and .Secretary of a 
 company, the .Judge of the County Court found 
 that at the elate of the note the conijiany was 
 not incorporated, ami rejected evidence oH'ci'i'il 
 by plaintill' to show that at the time of 
 negotiating the note the company was iiicur- 
 poratcd. 
 
 The judgment for plaintill' was a])pealed from, 
 and the ajipcal dismissed. 
 
 Jnriliui it al. v. Jloirln/ <i al., 3 II. it (b, "-'44. 
 
 2. Description of notes in schedule In In- 
 solvency— I'laintirt' sued on a note nunle hy 
 defendant to .lolin T. Kraser, for .$70.80, ami 
 indorsed to liiin. Defendant pleaded a discharge 
 in insolvency, to which plaintitf rejjlicd that the 
 debt had not been scheduled in compliance with 
 the Act. The schedule containeil the follow- 
 ing : "John T. Frascr's note, .S7-2.00." 
 
 Ilild, that the schedule did not sufficiently 
 describe the note, which, being ncgotiahle, 
 should have been scheduled as " ncgotiahle 
 paper, the holder of which is unknown." 
 
 Hittt V. Sittherlami, '2 R. & «i., 1!" : 
 1 C. L. T., 01)4. 
 
225 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 226 
 
 3. Drawn for amount of freight to be ' oonseiiuenoo of the adminsioii |)liiiiitiff rufiiiiiied 
 earned Not strictly a bill of exchange, but fiom inking prooucdiiigH iigainst (Jravu.s f(ir 
 an iipiu-opriation of freight -Tlu' plaintitV niadf foigiM-y. 
 
 liiigc iidvami's' to defendant, <pwn.T of the brig //,/,/, tliat defendant's (FainswoitirH) eondiict 
 (', Liivetl, and reeeived a l)ill of excliaiigu anionnteil to an ach)|ition and ratitieation of the 
 ihivwii hy tiio cai)tain of the vuhhoI in his favour signatures to tlie notes, and tlial lie was liable 
 fur llie full aliir)UUl <if the freigiit to be eaiiu'il theiicm. 
 
 Iiy tlif voyage on whieli she was then jiroeeed- ; /'«/• Weathel'be, .)., that the ease on tlie point 
 in;;. The liill was ihawn upon Haling BroH., ! of detriment or alteration of position came within 
 
 who iiilvaneed thi^ amount of it to plaintitf. 
 Tlie ve>sel failed to eoniplete her voyage, and 
 tlie insurers on freight paid only for average to | 
 
 the eases of rif:r(niilo//ih v. Shiiiilij il <il, 2 
 K. iV (!., 1!t!t, and A'/(/;//i/s v. ll7(///;'», L. K., 
 ") (,». I'.. (1(10, and that on this |(oiiit tiie plaintill" 
 
 the iiiiiouut of about one half the bill of ex- j was entitled to judgment. 
 
 i.li;iiiu'e, wliU'U was eriMlited. Defenilant being' 
 c;illeil oil to pay the Jndaliee Jileaded laelies in 
 i'('l:ition to the bill. I 
 
 //'/'/, llial the bill in (|iie>tioii eould not lie 
 trealeil >lrielly as a bill of exeliaiige, lint ratiier 
 ail ,i|ipi(ipiiaiion of ilie freight whicli had Schedule - Replication -To an aetioii on a pro- 
 |iailiiilly faileil. Defendiiiil was held liable to niissory note defendant jileaded ///^i ;• «//« a dis- 
 iiiake up the detii'ieiiey. 
 
 Itl-'ll I I III. V. /,../■ 
 
 T/n i'liioii llitiiky. Fttnisirovth 1 1 ni, 
 
 7 I!, k <;., S-_»; 
 7('. L. T., 144. 
 
 fl. Insolvency - Defence of discharge 
 
 II. 
 
 .\. S. 1).,472. 
 
 eharge under the Insolvent Act of 1S7.">. Jn the 
 schedule of liabilities a ilebt due jilaintitl's was 
 set out " W. A. X. aliout .'^7.''>0." 
 
 Ill Id, that this was a siitiieieiit (^oiupliiiueu 
 1 on a ))romissory note brought ^^'''h the statute, but that if otherwise the de- 
 
 1. K(|iiltnl)lc defence Selling aside pleas 
 
 feet in the sehediile should liave lieen iiiaili' the 
 suliject of a replication wiiieh in this ease iiad 
 not been pleaded. 
 
 Xaiifta (/ a/, v. Ma^bH, 7 |{. A; (i. 
 
 — In all aellol 
 
 liy tlie iiiiloisee, defendant pleadeil on ei|uital)le 
 
 L'niiiuils, that the note Imd Iji^'u made iiieiely to 
 
 iiialile the jiayce, who had indorsed it to plain- 
 
 tilf. to raise money on it, and the ])lca set out 
 
 "liar lireiuiistance.s connected with the note by 
 
 Way (It ei|iiitable dcfeiiee, alleging tiiat plaiiititl' 
 
 liail knowledge. I'laintitl', in his aliiihivit tosel tection order -4th Rev. Statrf., Caj). 86 
 
 asiile the pita, denied knowledi.'e of the fact "L'tion on a proniissoiy note againsl a married 
 
 I'tlieil oil, and defendant in reply .isscrted his "'""•'" defendant pleaded coverture, to which 
 
 lilaiiititl' replied, setting cait an order for protec- 
 tion in conscijuencc of desertion by her liusband, 
 
 Married woman \ote made by 
 
 , .■)47. 
 I'ro. 
 
 In an 
 
 lielief that plaintill' had knowledge, and that 
 plaint ill' and .said payee had been very mucli 
 mixed 111) with each otiier, .ind "he considered made under Kcv. .Stats,, 4th .Series, t'ap. 8(j, 
 
 it almost ini])ossii)le, but that jilaintill' shouhl 
 have know 11 the true history of the note' 
 
 Defendant rejoined tiiat long licfore the making 
 of the note sjn,. returned to her husband, and had 
 
 //'/'/. tliat the ])lea iiiust be set aside, the ' since lived and cohabited witii him, and was so 
 
 essential allegation of scienter being denied by ' living and cohaliitiiig at the time of making the 
 
 plaiiititr. and that denial not controvcited by the ""*''' ■I'l'l 'be desertion had wholly ceased, as 
 
 ilcfeiidaut. plaintill' Well knew. The facts set out ill the 
 
 Knm/irh- v. Arlinn; '_> !{. & ( i., .S(J7. rejoinder were fully proved. 
 
 I Jlild, sustaining the decision of .Johnstone, J., 
 5. Forged signature - Katlflcation of— i of the rounty Omit, tliat the plaintill'cimhl not 
 I'he ileleiidaiit Farnswortb was sued as maker | recover. Weathcrbe, J., ilissiiiliii;/. 
 of two promissory notes which purported to I Siiicfair v. WakiJuM <f a/., \ R. & C, -IGo. 
 
 Iwve been ninde by Farnsworth and indorsed by 
 
 one Craves, who was joined as co-defendant. ' 8. Mistake in description Of payce-ln an 
 -Vt the trial defendant swore that he had neither ! action on two promissory notes given to .J. ,S. & 
 signed the notes in (juestion nor authori/.e.l any- ! Co. by defendants in payment for certain dredge 
 one t.) sign them for him. This fact was admit- i machinery, one of the ground.s taken in opposi- 
 cilaiid was found in his favor, but it appeare.l tion to plaintiff .s' right to recover was tliat the 
 "at previous to the trial, wlicn payment of the \ notes sued on were drawn payable to J. S. & 
 notes was demanded, Farnsworth stated that he ; ,Son. 
 
 ia<l signed tlie notes for the accommodation of , Held, that as it was clear from the evidence 
 us co-ilefciidant ({raves, and made an offer of ■ that plaintiffs were the parties to whom the 
 payment provided time was given, and that in i defendants intended to make the notes payable, 
 
Ill 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 228 
 
 ami iiM tlie niiNtiiki', if miy, in tlii! dcHiTiption of 
 till' plaint itVn wan inaclc liy tlu' (li'fi'ii<liiiit.s who 
 had tile iiciiilit of the iii.uliiiiii'\ , the ilcftml- 
 antM could not avail thi'MiHi'lvcs of thi' mix- 
 dL'sc'iiption to t'suape liability. 
 
 Siiiilliir it III. V. Wolhtii it III., 
 •Jd X. S. H., (H H. it (i.), .'lOK. 
 
 On ii/ijii(il to till Sii/iriini Court of CiuhuIu, 
 111 III, tliat, it liiing i.li'ar liy tlio fvidence that 
 
 the plaintitl's wiTu the peiHons desiynated as 
 
 paycL'x, they eould recover. 
 
 Wallacr V. Souther, 9 ('. L. T., 'JIO. 
 
 9. Note given In payment of premium 
 
 Necessary to show that it was received as 
 payment to sustain action by assignee of 
 maker against co-owner for share of premium 
 
 — I'laiutilfs iisHigiioi'gave his pronii>i«ory note for i 
 the amount of a ])i'cniiuni on a. policy of nuirine ; 
 insurance on a vessel, of which said assignor and ' 
 the dcfcinlant, witli others, were part owners. 
 The note was never paid, and the policy stipu- 
 lated that in the event of the premium not heing 
 paid, tlie company migiit cancel it. Plaintitl', 
 as assignee in liankiujitcy, sued the defendant 
 for his share of the premium, as money paid. 
 
 Ill III, that whatever might be phiintitfs rights 
 had the note been acceptcid as a payment, and 
 the defendant released, there could he no action 
 for money paid in the present case. 
 
 linrihtij I't al. v. (loorh, '2 Esp., 'u\, distin- 
 guished. 
 
 JJickk V. Bttnlhorn, 3 R. & (i., 387 ; 
 ;U'. L. T., 43. 
 
 10. Note received In payment of account- 
 
 Plaintitl's wrote to defendant, August loth, de- 
 maniling payment of an account admittetl to be 
 due. Defendant replied, forwarding a promis- 
 sory note for the amount, with interest and 
 bank discount. Plaintiffs handed the reply, 
 with the promissory note, to their attorneys, 
 who wrote August 27th for a settlement, but 
 did not return the note, which had not matured 
 when plaintiffs brought action for the amount 
 of the account. 
 
 Held, on appeal from the judgment of the 
 Chief Justice, at Chambers, setting aside a plea 
 founded upon the acceptance of the note, that 
 there had been no acceptance of the note in pay- 
 ment of the account. 
 
 Brown et al. v. Harris, 1 R. & G., 13. 
 
 11. Notes entrusted to gratuitous bailee 
 
 — Misfeasance or negligence — Plaintiff and de- 
 fendant held notes of D. S. & Co, , of Philadel- 
 phia, for ^1600 and $4000 respectively. P " re 
 maturity of the notes defendant undertook, 
 
 with consent of the plaintitl', who indorsed tlio 
 note held by him foi' that puipose, to |iicstnt 
 the notes to the makers in I'liiladclphia for i||.s. 
 count, b\il there was no agieeiueiit exitresscil w 
 implied for any commission or reward to be paid 
 to defendant. The makers declining to iliscmini 
 the notes, defendant left them both with Van 
 H. to be retained subject to order of the owners, 
 Van H. deposited the nrites in a sealed envelope 
 in the Corn Kxchange Xational liank, but aftti'- 
 wards, becoming embarrassed, frau.iiilcnily limk 
 the plaintiff's note from the envelope, got itilis- 
 c<iunteil by the makers, i.'id ni>pro|)iiiiteil tlio 
 proceeds to his own use, and afterwards failed. 
 Defendant, ascertaining the fact of the failure, ur 
 fearing it, went on to I'hiladelphia and secured 
 his own note. 
 
 7/(A/that defendant, being a mandatary, or 
 bailee without reward, had not been guilty of 
 such negligence or nusfeasance in dealing with 
 the plaintiff's note as to render him liable in an 
 action for the loss resulting from N'an H's, 
 breach of trust, there being no evidence that 
 the advantage he gained in saving his own note 
 resulted from collusion with Van H., and the 
 evidence showing, althougii the fact was not 
 brought out in the pleadings, '.hat the defen- 
 dant had put his own note in the same hazard 
 with that of the plaintiff. 
 
 y'(/-\V;ikins,.)., ilLfsi iitliii/, that the defendant, 
 in depositing ))laintilf's note with Van H., was 
 not acting within the scope of his authority 
 as bailee, anil was liable for the consciiucnccs of 
 his act, but that, as the verdict was in U. S, 
 currency, it should be set aside. 
 
 Harris v. Shtffidd, 1 R. & C, 1. 
 
 12. Note given as security Substantial 
 
 fulfilment of agreement upon which given— 
 R. took a prondssory note from McL. and McI)., 
 the defendants, by agreement between him and 
 them as security until McL. should give him a 
 mortgage of certain lands. McL. and his wife 
 e.Kcctited a mortgage of the lands to R, in the 
 usual form, and McL. brought and tendered it 
 to R., -^ho was then very ill, but did not read it 
 to him. R. then said to McL., " You had bet- 
 ter take the mortgage over to A.'' (the registry 
 office was situated there) and when you bring 
 me back a certificate that it is left in the office, 
 you will get the note." McL. took the mort- 
 gage to A. and had it registered, but this was not 
 till a fortnight after R.'s death, and about three 
 weeksafter theabove conversation. No interme- 
 diate incumbrance, however, intervened. McL 
 obtained the certificate, but did not bring it to 
 K.'8 administrators. R. died intestate, and his 
 administrators brought action on the note. 
 
22f) BILLS OF EXCHANGE AND PROMISSORY NOTES. 230 
 
 ll.lil, tlmt McL hail Hulistiintially fiillilleil «i|«,(MN( .liii' liy M, tit tliu pliiiiitKrs. Tlic notes 
 
 till' iij^'itrmuiit lii'twffii liiiii.siilf, MlI)., ami wcti- not iiu'iitiidicil in tlu' aicmint at all. 
 R., unci tlio jury iiaving founil for the ilefi-n- ' /A/*/, tliat tlii' i'i|nital>Ii' doitrinc ax to piioiity 
 
 iliints (tliu nuuKtion of the iloliviTy of the of paynu'nts diil not ajiply «o aH to ilLsuliargo 
 
 iniirth'iigi' to K. in lii.s lifL-tiuii! havinj,' lioun left tin.' notus as cIiIit oltiigation.t. 
 
 to tluMi), anil having also found that McL. Thi M< rrhuii/x' /{aitk v. HI irfiiii/, I li. &(',., 4^Q. 
 intril in iH'i'feot gnoil faith, tiie Coui't rufiiHi;il to 
 
 dLstuih tia vtidiLt. Ifl, Promissory note delivered up ns paid 
 
 McKeirJr ,1 ul. V. Mrhaii e.t n/., -JOld., 324. by mistake -Evidence of mistake admissible 
 
 —Action maintainable upon the note- In an 
 
 13. Xote pujubic in currency -Currency 
 
 of country where payable -Thu notes wcro 
 (Icclaivd on a.s payalik' in I'nitt'd .States currency, 
 wliile till' evidence slio\»ed that tliey were pay- 
 able in ciniency. 
 
 /fi/il, tiiat a.s they wei'e made payaltlc in tiie 
 United .States, and tiio word " currency " in that 
 cii.sc woidil be held to mean curiency of the 
 United States, tlic variance was not material. 
 
 Furlho; that the objection if available sliould 
 have been pleaded. 
 
 Suullii r 1 1 al. v. Wn/larti et al., 
 '-'OX. S. R., (8 R. &(;.), -.00. 
 
 adjustment of accounts lietwecn phiintitl' and 
 defendants a promissoiy note made by defend- 
 ants in favour of [ilaintilf was delivered up to 
 them with a receipt in full indorsed upon it and 
 signed by plaintill. Inuuediately after the ad- 
 justment the plaintitl' discovered that a mistake 
 had been made in the settlement and at onco 
 applied to have it rectified. This was lefused 
 and he then brought action on the note. On 
 the trial the defendants produced tiie note uiuler 
 notice to iiroduce, and the plaintill' having testi- 
 fied that he had put the indorsement on under 
 a mistake tendered evidence of the mistake 
 itself. The Judge rejected the evidence aiul 
 Atlirnied on appeal to the Supreme Court of : also evidence of wiiat one of the defendants had 
 C'""i«li''- said wh'jn informed of the mistake, and charged 
 
 Wallacry. Sou/lin; d V. L. T., 210. the jury tliat phuntitl's only remedy, if any, 
 
 t was in Ei|uity. 
 
 14. Order conditional— Proof of Condi*' ^^''''' ^^''kins, J., (IUiihHi,,/, tiiat tiie evi- 
 
 tion— New trial— (.'harles IVescott drew on j '^'^"''''-'*'''""''"i"'^''''"^""'e'-''''vcdand that |)laintiflF 
 plauititl' in favor of defendant the following : ^""1"' maintain an action at law upon the note 
 order : " Please pay Henry Chapman, or order, ' "* ^*'''l '^*' l>roceedings in Ecpiity to rectify the 
 
 the sum of forty jMiunds currency, payable out ' mistake. 
 
 of the first moneys received by you on my ! 
 
 ftccount." Plaintitl' accepted by indorsement in | 
 
 the following terms : " Accepted to pay when I I - 
 
 collect a sufficient amount out of .Mr. l>rescott'.s ' ^ executors of a deceased insolvent for pro. 
 
 ! ceeds of goods sold— Plaintiff s consigned goods 
 to the defendants to be sold and the proceeds 
 handed over to D. S. D. S. being indebted to 
 
 Atkiii-ion V. Gould H al., 2 N. 8. D., 482. 
 
 17. Promissory note as set off In action 
 
 debts to pay the .same.' Defendant chiimed, 
 in adjusting accounts with plaintiff, that the 
 plaiutitr should credit the amount of the order. 
 
 Held, that without proof of money of Pres- 
 cott's having come into the hands of the 
 plitintitt' he could not be made liable for the 
 amount of tiie order. 
 
 New trial ordered where the testimony of the 
 parties was contradictory, and the writings pro- 
 duced corroborated plaintiff against whom the 
 verdict was found. 
 
 Fvlkrton v. Chapman, 2 N. S. D., 470. 
 
 15. Payment, priority of— Applicability of 
 
 equitable doctrine— The note sued on, with 
 others, was given to M. to assist him in his busi- 
 ness in Halifax, and was indorsed by him in blank 
 and given to the plaintiflFs, not for discount, but 
 to be held by them as security for advances. 
 Accounts were put in shewing advances amount- 
 ing to §95,000, and resulting in a balance of 
 
 defendants gave to them a promissory note for 
 the amount and died leaving his estate in an 
 insolvent condition. An action having been 
 brought by the executors of D. S. in the name 
 of plaintiffs to recover the amount arising from 
 the sale of the goods, 
 
 Hdd, that defendants were entitled to offset 
 the amount of the note given by D. S. 
 
 Chisholm et al. v. Chisholm et al. , 
 
 3 N. S. D., 85. 
 
 18. Renewal— Promissory note— Estate of 
 
 deceased partner held liable for unpaid bal- 
 ance after lapse of four years, the estate not 
 having been settledand no prejudice appearing 
 — Laches— Novation — Parties to proceedings 
 in Court of Probate— Defence of non-present- 
 ment must be raised by answer or counter- 
 allegation — Plaintiff deposited the sum of 
 
231 
 
 BILLS OF SALE. 
 
 282 
 
 S949.55 with the firm of W. I. & Hon, on whioh 
 interest was paid annually, and received as an 
 acknowledgment the promissory note of tlie firm 
 for the amount, dated July 1st, lS7t), payable 
 one month after dale. W. I. died in July, 1880, 
 after which the business of the firm was con- 
 tinned by C. I., the surviving partner, who was 
 
 19. Renewal of note— Action on original 
 
 —Before maturity of renewal— At the mi'.tiuity 
 of defendant's note to plaintiff for iJ'iti.S.T") the 
 defendant gave plaintiff a renewal note for Sl'iO, 
 and promised to pay tlie balance in cash next 
 morning, which plaintiff said was all riglit, but 
 on the same day the original note was sued, 
 
 also executor of the estate of the deceased. In - plaintiff still liolding the renewal note, which 
 July, 1882, C. I. wrote in the name of the firm i was a negotiable instnnnent. 
 to i)laintiff enclosing the amount of interest I Hdd, reversing the decision of Johnson, J., 
 then due on the noti^ and suggesting that if [ that the plaintiff could not recover on tlie note 
 
 sued (in. 
 
 Murray v. Oastoiiguay ef a/., I H. & (i., :il9. 
 
 20. Two mailers— One dies before trial- 
 Appeal taken against judgment in favor of 
 deceased without suggesting his death — An 
 action was brought on a promissory note against 
 tlie two makers, one of whom was dead at tlie 
 
 plaintiff i:onchideil to allow the money to remain 
 in their hands he had lictter have the note re- 
 newed as it would bo running six years tlie fol- 
 lowing July and there was some doubt wliether 
 or not the payment of interest would keep the 
 note in force over six years. 
 
 In conseiiuciice of this plaintiff delivcicd up 
 the original note and received in return a new 
 al 
 
 note similar in all respects excc))t the date and time of the trial. A verdict was found in favor 
 a slight difl'crciice ill the amount. In Kcbriiary, of the deceased defendant, but again.-it the 
 
 1884, C. I. failed in laisiuess and plaiiitiH' filed 
 an attested claim against tlie estate of W. I., 
 the deceased partner, for the balance due him, 
 four years having elapsed since the death of 
 W. I. 
 
 other maker of the note, and a rule to set it 
 aside was taken out on the jiart of the plaintitf, 
 naming both the makers as defendants. 
 
 As there was no such cause in existence, one 
 of the original defendants being dead, the rule 
 
 Jl/il (1). That plaintiff was entitled to claim was discharged with costs, 
 against the estate of the deceased partner, not- (/anna it ul. v. X>ihj «/ al, 2 R. & (1., ISO, 
 
 withstanding the delay, the estate not having : 
 
 been settled in the meantime and it not appear- 
 
 ing that those interested had been in any way 
 prejudiced. 
 
 (•1). That in the absence of proof of an express 
 agreement to that efl'ect. the facts ami conduct 
 of the parties would not warrant the inference 
 that plaintitf, in taking the new note, intended 
 to discharge the estate of the deceased partner. 
 
 ('^). That there was no such introduction of a 
 .stranger into the contract, or new term or con- 
 dition incorporated into it as to create a 
 novation. 
 
 BILL OF L.VDING 
 Su. SIIIFPIXG. 
 
 BILLS OF SALE. 
 
 (4). That the Court of Probate had jurisdic- 
 tion to decide on plaintiff's claim, notwithstand- 
 
 1. Acts 1883, c. 11, s. 1, rcqiilring affl. 
 
 davit to accompany bill of sale, but containing 
 no negative words, and silent as to effect ot 
 non-compliance— Act held merely directory— 
 
 ing tliat the sxirviving partner was not made a ^ ^^^-^^^^ ^j^^ j^ „ot ^ creditor cannot avail 
 party to the proceedings. \nma^\i of fraud-In an action for the rccovciy 
 
 Quatr,-, whether the surviving partner could „f .,, i,^,.^,^ aefendant relied on a bill of sale from 
 
 be made a party to proceedings in his own right, 
 
 (5). That there was sutficient evidence to estab- 
 lish the claim without proof of presentment of 
 the note at the i)lace where it was made payable, 
 but if that were necessary and the executors 
 wished to rely on such a defence it should have 
 been raised by an answer or counter-allegation 
 which the practice of the Court of Probate 
 
 allows. 
 
 i?e Estate Ives, ex parte CamphcU, 
 
 7 R. & G., 108 ; 
 
 7 C. L. T., 146. 
 
 J. A. W., a former owner. 
 
 Plaintiff', who ha<l purchatod the horse, with- 
 out actual notice of the liillof .sale, from 1!., »ho 
 purchased from J. A. W., relied on the fact 
 that the bill of sale, when registered, was not 
 accompanied by an affidavit of the party giving 
 the same, or his agent or attorney, as reiiuiicil 
 by Chapter 84 of the Revised Statutes, 4tli 
 Series, as amended by Chapter 11 of tl'u Acts 
 of 1883, section 1. 
 
 Tlie section of the Act requiring the affiilftvit 
 contained no negative words, and was silent as 
 
233 
 
 BILLS OF SALE. 
 
 234 
 
 to the effect of the want of the affidavit on the 
 bill of sale. 
 
 Hfid, that the words of the Act were merely 
 directory. 
 
 Aho, that even if the bill of sale was fraudu- 
 lent, as was attempted to he shown, that would 
 be of no avail to the plaintiff, who was not a 
 
 creditor. 
 
 Mcliride v. Ward, 7 R. & G., 115 ; 
 7C. L. T., 148. 
 
 2. Bills of Sale Act-5th R. S., Cap. 92, 
 
 Sec. 3, not applicable to foreign contracts — 
 The plaintiff company leased a sewing muohine 
 to McB. at Belfast, Maine, taking a bill of sale 
 by way of security. The lease was made upon 
 a written imdertaking that the machine was not 
 to be removed from tl'o liouse in whicii it was 
 pLiced without the written consent of the com- 
 pany. Mel?, subsequently removed to Truro, 
 N. S., taking the machine without having ob- 
 tained .such written consent, and pledged it at 
 Truro to the defendant. 
 
 Plaintiff having bronglit an action claiming 
 the return of the macliine and damages for its 
 detcutiini, the ground was taken that the plaiii- 
 tili's bill of sale bad not been registered in this 
 Province in compliance with the requirements 
 of the Revised Statutes, c. 9'2, s. ,S. 
 
 JIi/il, tliat the provisions of the Act relied on 
 were not applicable to a bill of sale made be- 
 tween ])arties and in respect to a subject matter 
 out of the Province. 
 
 Al-^o, tliat tlie removal of the machine to this 
 Province without the plaintiff's consent was an 
 act of trespass, which precluded any subse()uent 
 (lealiujis witii it on the part of the lessee from 
 affecting tlie plaintin''s right. 
 
 SliKjisr Seiriiii/ Machine, v. McLeod, 
 
 •20 X. S. R, ; 
 
 (8R. &(i.), 841 ; 
 
 »C. L. T., (iO. 
 
 3. Rill of sale of logs from one tenant 
 
 in common to third party— Verbal agreement 
 between workmen of other tenant and third 
 party as to ownership of logs cut — IMaintitl' 
 cl^i'.aed to be owner of certain logs under a bill 
 of sale from his fatlier, (J. M., who was tenant 
 in connnon with the defendant of the lands on 
 wliicii they were cut. The trees from which the 
 logs were cut had been felled by personsemployed 
 by defendant to perform that service, and the 
 logs bore liis nuirk. Plaintifi' relied largely on 
 an agreement wliieh, he contended, was made 
 l)et\vcen the workmen of both parties and agreed 
 toby defendant, to the effect that whatever logs 
 each of the parties " fixed " they were respec- 
 tively to retain. Defendant and his son denied. 
 
 and there was no evidence to show that he had 
 ever made or sanctioned any such agreement. 
 
 Ile/d, that as defendant's right to the logs cut 
 on the land by his laborers could not be affected 
 by an agreement between the workmen, plaintiff 
 derived no title under the bill of sale, and having 
 had no legal possession of the logs sued for, the 
 rule for a new trial must be made absolute with 
 
 Mitchell V. Lauf-., 1 N. .S. T)., ,'>18. 
 
 4. RIU of sale of after acquired property 
 
 j Xoriis arlii-^i iiit<rr(')ii( lis — Equitable title can- 
 i not be set up by plaintiff in replevin — Plain- 
 tiff replevied from the Sheriff of Halifax 
 County property seized under execution as the 
 I property of one Baldwin, and claimed title 
 ! thereto under certain l)ills of sale ccmtaining 
 provisions that made the conveyances applicable 
 ' to after acquired property. The goods were all 
 ordered by Baldwin after the date of the bills of 
 I sale, and nothing had been done by plaintiff by 
 { way of asserting a riglit of possession. 
 i Hi III, tliat in the absence of any nonit artict 
 i)ifi rrciiiiiin, plaintiff bad not the legal title, and 
 that he could not, in this suit, rely on an equita- 
 ble title. 
 
 O'KtUx. R>n, 4R. &(;., 419. 
 
 I 5. Defects in aflldaTlt accompanying — 
 
 The affidavit attached to a liill of sale under 
 wiiich plaintiff clain\ed tiie return of oertwin cat- 
 tle taken by the Sheriff under execution j)urpor- 
 ;ed to l)e swf)rii befrne a .Fusiice of tiie Peace 
 and was signed by the Justice, but not by the 
 grantor. The bill of side having been executed 
 under the Acts of ISS;^. 
 
 Hild, that it ^^■as not avoided by reason of 
 defects in the affidavit or ))y want of an affidavit. 
 
 Siovomli V. Mor.si:, 20 X. S. R., (8 R. & (;.), (iO. 
 
 6. Evidence -Property mixed — Replevin 
 
 — Wbei'c plaintiff replevied certain logs fronj 
 defendants under a liill of sale, and among those 
 rightfully belonging to him were a number be- 
 bmging to defendants, which the latter had 
 mixed up witii them under the belief that they 
 were all their own. 
 
 //(/(/, that there should be a new trial, in order 
 
 that defendants might have an opportunity of 
 
 proving what i)art bebmged to them, and what 
 
 to the plaintiff. 
 
 I Sffn-art v. Wheeleril «/., .S X. S. 1)., 414. 
 
 1. Filins— Delivery at Registrar's house 
 
 — Neglect to index and mark —Effect thereof 
 — Removt'.l from ollice— Attachment of goods 
 during such removal— Replevin against Sheriff 
 —An assignment was made to plaintiff for the 
 
23; 
 
 BILLS OF SALE. 
 
 2£3 
 
 benefit of oreilitors, wliieli the iissignei', having 
 taken ])ii!<sessi(in of tlie estiite anil clients, deliv- 
 ered to the Kegislrar of Deeds at ids lionse, at 
 3 A. M., with instructions to record it as a deed, 
 and tile it as a liill of sale. 'J'lic Re;L'istrar did 
 not Diarli it " tiled," or tile it as a liill of sale, 
 or niind)er, enter, or index it in the hoolt kept 
 by liiiu for entry of liills of sale, but recorded it 
 in tlie usual way as a deed of lanil. It remained 
 in his otlice until Decendier .">, wlien it was, willi- 
 out any instructions from jilaintitl, sent Ijy mail 
 to tlie residence of the plaintiff', wlio was not 
 then at lionie, and wiio did not ])ersoiially learn 
 that tlie deed had been returned until the (ith 
 January. On the Otli January plaintiff returned 
 the deed to the Hegistrai'. In the interval, the 
 goods weie seized under an attachment issueil 
 on the "ilind Decendiei', and an execution upon 
 a judgment olitained "Jud January against the 
 assignoi'. 
 
 //(/(/, that the assignment was of the cl.iss 
 re(iuiring to be tiled under cap. S4, H. .S., 4tli 
 series, that the ilelivering of the in.strument at 
 the !iegistrar"s iiouse, witli instiuctioiis to file, 
 was suliiiient ; tliat tlie removal of tlie deed 
 from the office could not, inider the cii'cum- 
 stances, be taken advantage of by an atlacliing 
 or execution creditor, who knew of its having 
 been in the otliee ; and tiiat re))levin for tin: 
 goods could be maintained by tlie assignee 
 against the Sheritl'. 
 
 Fi'yiiir v. /Si^hoji il a/., .") H. it (>., 4.")1. 
 
 8. Filing- Kctiiiirements as to fliiiig and 
 
 aftida v'its Construction of Acts of 188;i, c. 11, 
 s. 1; cf. 5th R. S., e. 92, s. 4 W. Met;., (). 
 Mc(i., anil \. !<.. of Yannnutli, traders, by 
 deeds of assignment (A., 15. iV ('.) assigned to 
 plaintitV all their real and personal estate in 
 trust for creditors. 'I'lie assigniiieiit A. was 
 niaile for the general benefit of creditors, and 
 the assignments 15. and ('. for the benefit of 
 certain preferred creditoi's, the residue only, if 
 any, being assigned for the lienetit of creditors 
 generally. IJearing even date with the assign- 
 ments, the assignois executed se|)arate bills of 
 sale of their res|)ective peismial property (I).. K. 
 and I'M to the jilaintift', subject to the trusts 
 contained in the deeds of assignment. None 
 of the deeds of assignment were tiled with the 
 Registrar of Deeds at ^'ailiiouth ; the bills of 
 sale were tiled, but were not aeconipanied with 
 affidavits under the Act of 188.'}, c. 11, s. I, 
 (R. S. ,"ith series, c. 9'2, s. 4). Defendant, as 
 Sheriff of the County of Yarmouth, levied on 
 the jn'operty included in the bills of sale and 
 assignments under executions placed in his hands 
 by judgment creditors. 
 
 //*=/(/, atiirniing the judgment of Thomp.son, J., 
 Weathei'be, .T., (Us>ti iiliiiij, that the assignments 
 referred to in the bills of sale K. and L'". , setting 
 out the considerations and trusts on which they 
 were made not being of the character of defeas- 
 ances, and it suthciently appearing that no 
 interest reir.ained in the grantors, and that the 
 sales and assignments weie made for tlie benefit 
 of creditors, such assignments were iiot reiiuireil 
 to be tiled as part of the instrument of transfer. 
 
 /'(/• Thciiip.son, J., in the judgment afhinied : 
 
 (1.) That neither the bills of sale nor assign- 
 ments rei|uireil to lie acconi)ianied with the alli- 
 davit jirovided for in Ac' ' of )88.'{, c. 11, s. 1, 
 that enactment only applying to bills of sale fur 
 securing debts or advances. 
 
 ('!.) Tiiat the assignment A. did not reijiiire 
 to l>e tiled, as it was an assigmneiit for the gen- 
 eral benefit of creditors. The assignnients 15. 
 and C. were liable to be defeated by execution 
 creditors, for want of tiling. 
 
 (.S. ) That the assignnients ]>. and ('. imt 
 being in the nature of defeasances, which are 
 reipiired to be tiled, and the bills of sale IC. and 
 F. biMiig absolute conveyances, and fidly exjiiei-s- 
 iiig all that was material to their character as 
 such, the ])rovisions of the Act in reference to 
 tiling were substantially coni)tlied with, and the 
 Sheriff was not jiistilied in levying upon or sell- 
 ing any part of the property includei! in the 
 assignineiit A. or the bills of .sale K. and V. 
 
 (4.) The assignment \. was gooil witlnmt 
 tiling, and 1). was only auxiliary to A. 
 
 ]),ifb< V. /■///(/, 7 R. >V- <;.. 4S7; 
 8('. L. I'.. 19. 
 
 0. Fraud In, matter wholly for Jury \\ lan 
 
 ipiestion of fraud arises on a liill of sale tn a 
 creditor, it is exclusively for the consideratieii 
 of the jury. 
 
 Tarriiii \. Sdir,/.,; 1 Thmn., (1st Hd.). 'Jd: 
 
 C-'ud Kd ), -W. 
 
 10. Fraud against creditors -In an action 
 
 of replevin again^ct the assignees of one 1).. tn 
 I'ccover certain goods claimed by plaintitV uiicier 
 a bill of sale made mole than thirty days liefoie 
 his iiisotvency, the. fudge of the County Court 
 found for the ilefeiidants on the ground that the 
 bill of .sale was given in eonteiii|)lation of insol- 
 vency, and was an imjust jirefereiice, having the 
 ertect of iinpeding, olistructing and delaying 
 creditors. 
 
 The decision of the .Ttidge being borne out l^y 
 the oireunistances attending the insolveiicy, ana 
 the relationsliip existing between the parties, 
 iHul the Judge below having had the fuitlier 
 
237 BILLS OF SALE. 238 
 
 iii.viiiitiicc of liciiiinj,' ami seeing tlie witnesses, goods conveyed under a liill of sale. Tiie su.m- 
 
 tlif (inirt refused to distiirl) tlie tiuding. niary ]>roeeedings tiierein provided for are ol ii- 
 
 J'iiiio V. (Iar(v.u il a/., '_'0 X. S. R., gatory only in tlie ease of duties devolving on 
 
 (8 R. & fl.), '24!) ; ' the iissignuu by virtue of the Act. 
 
 S ('. L. T., 4(M». /'iiiio v. il(irn:a <t a/., (J R. & (1., 487. 
 
 If. Fi niidiilrnt consideration -To an aution i 14. Grantee not affected bj notice to 
 
 of trcivi'i iigainst defendant, as Slierlti', for goods grantor of an execution outstanding, where 
 
 mIzimI iindrr execution, ilefen<Uinl pleailcwl at- made bona fide and for valuable con.sideration 
 
 talking a transfer from tlie execution delitor to — Affidavit -I'laintiff claimed a horse under bill 
 
 tlir |il:iintitl', his fatlier-in-law, us fraudulent, of sale from McL. , which was taken liy the 
 
 'I'lic transfer was by bill of sale niatle on the slierill' under execution. At tlie time the bill of 
 
 (lay mi vvhich tiie sumnioiis in the I'ause in whicli sale was niaile and tiled the sheritl' had tin; writ 
 
 till' CM cutiiiii was aftei waiils issue(l was served of execution outstanding in his hands against 
 
 "11 ijji- ililitiir. It was made without the know- McL., of which the latter hail notice, but no 
 
 IciIlt nr 'ipusent of the plaintitl' in the absence levy hail lieen made, and it was clear that the 
 
 of iiiiy person repicseiiting him. ami the eon- bill of sale was received by iilainlitl' huiitt jiile. 
 
 sidciaiiiiu was ,i delit alleged to have been incur- for valuable consideration and without notice. 
 
 nil siiiiif nine years before for board to the llild, that the title of the jilaintitr was not 
 
 ililitnr'> uitc and children, and sundry articles affected by the notice to MiN. ; IIdIkdh v. 
 
 ami Mivires such as a father might naturally Thilii'^^iiii, L. R., 'J (,). !»., ti4"_' distinguished 
 
 (.iiiilrilnile to his daughter's coinfoi't without \ Al-"! sustaining the judginenl below, — 
 
 cxptiiatioii of jiaymeiit. (I.) That the only amount i'ei|uiied to be 
 
 ll'hi. that the verdict establishing fraud in sworn to in the at!ida\it is the actual amount 
 
 the transfer could not be set aside as against secured, not including the nominal considera- 
 
 oviilniic, tion, and 
 
 Mrhniinld y. l'( i-'iiix.iiiii^ 1 R. A:(i., 7l>. (-.) That the omission of the description of 
 
 the occupation of the defendant from the body 
 
 12. Fraiidulpiit 13 Kiiz., c. .1 -27 Ellz., "'' "'" ""'''■•''*' '"^ "'" ''' ^'''''^ ''"*'"'''• *'"' ""''''^''^ 
 
 0.4 The owner of a horse made a fraudident '""'.^ "'^"l'' ">'t "H'ourt. 
 
 l.illof sale of it to his son. the ilcfemlant, for Cn„„u,,ihaM v. Mo,:., .'H\ X. .S. R., 
 
 tlir purpose of protecting it from the claims of: ''^ '''• '*' *'■*• "*^- 
 cn^ilitnis. Defendant took delivery of the horse 
 
 and atiii wards .sold it. sub.se<|uentiy to the l.i. (irantor remaining; in i)os.scsslon — 
 
 fmiviyame to the defendant. l>iit before the Posse.S8ion to sustain replevin — I'laintilf 
 
 saiil sale, the father conveyed the horse, by a liroiight replevin against defendant, a sheriff, 
 
 hill nf s.ile, to his daughter the jilaintitf. for a for goods taken on execution but claimeil by 
 
 liilit l.iiiiii n'lh due fiom him to said plaintitl'. |(l.iintilf umler a registered liill of sale from the 
 
 111 ail action of trover by the daughter against party against whom the execution issiu'd and 
 
 the -oil tortile alleged ' cinveision of the horse, who was sntfered to remain in possession. 'I'he 
 
 ■hill, reversing the decision of tlu' County priiici]ial iiuestion on the trial was tln^ /ci//"//''/'-* 
 
 Cinit, that although the lirst conveyance was of the bill of sale, and the jury having found for 
 
 fiaii.lulciitly made to defeat the rights of ci-edit- t\\r ))laiiitill'. 
 
 "I'saiKJ was Void as against them, under l.'l l'',liz., //>/'/, notwithstaiuling suspicious circumstaii- 
 •'. "i. till' grantor could not imparl any title to ces, that their verdict eould not be set aside. 
 t!if plaiatitf. who coidd only appiopriate it to .l/«<, that the plaintitf, who had had a .syni- 
 llif >alist'action of her claim by virtue of some bolii; delivery and had a right to immediate 
 lif-'iil j>!icess, and that the )>laintilf eould not possession, had siitlicient jiossession to maintain 
 attack the conveyance under 'Si Mli/.., c. 4, as the action. 
 tliat ilid not apply to pi rsonal pio|)i'rty. MrXdh v. Sdiri/i r, ,'{ X. S. I)., ;]H. 
 
 Vimiig. ('. .1., and DesRarres. .1.. ,lissn,liti<i. 
 
 Mono V. Moorr. I R. \- <!., .vj... ^^^ (jp„„t„p representing property as his 
 
 - Plaintiff making similar representations - 
 
 13. (irantec under, may bring replevin Plaintiff estopped from recovering from 
 again.st assignee under Insolvent Act of 1875 - grantee Defendant accepted a bill of sale and 
 • wtmii l'2."» of the Insolvent .\ct of IST.'t does received delivery of a horse, cart and harness 
 lint prevent an action of iei)levin against an from McC. to seeme advances made on the 
 assigiiei. in itLsolveiiey to recover possession of faith of representations by both ))laintilT and 
 
289 
 
 BILLS OF SALE. 
 
 240 
 
 Mi;('. tliiit llic |)i'ii|i('rly wii-< lliiil "f McC, iuid 
 tliiit |iluintiir IiikI iki chum to it. 
 
 //'/(/, that clefciiiliuit hail a linht tci retain the 
 property, at all t-venls until he was paicl. 
 
 (Mn- V. f V(;v// (/ «/., ;{ \. S. I)., 7<l. 
 
 1«. Hiring leuHc or aKrrcmciit for sale 
 
 Construction of 5th R. S., i;. 92, s. 3 Latlies 
 
 - In MM ai'lion (pf trover for a pair of oxen the 
 leaified .Tuil.ue of the County Couit founil the 
 following facts: ( '. II. I>., the owner of the 
 oxen in ilispiite, deliveTcil tht'in to II. under an 
 aj,'reetnent that the latter \sas to have theii' use 
 for a year or more for their keep. H., pri'teiid" 
 inji to lie the owner of the cattle, oxecuteil a hill 
 of sale of iheni to the defendant, who perinitteil 
 If. to remain in pos.session. H. afterwards re- 
 tuined the cattle to < '. II. I)., the owner, « lio 
 then srdd them to pliint ill', who was a hoiia jii/< 
 puieha.ser for value without notiie. 
 
 /{•ill. l)er McDonaM, ( '. .!., that there lieihg 
 evidenee to sustain tile (inclines of the .liidge 
 lielow, or the evidence on the part of the ilefiii 
 dant not lieing of a ciiaracter to induce tiie 
 Court to iitverse thcni, the ai-rangenu'Ut iriade 
 liy C. H. I), with II. was not a hiring lease or 
 agreement for sale within the letter- or the spiiit 
 of th.' Kills of Sales ,\.-t, c. (C_>, .".th It. .^., s. :{. 
 
 /'(/• Weatherlie, .1., that though the evidence 
 for the ih'fciidant as to liic terms upon which 
 the cattle weic held hy H. was of a suspicious 
 character, it would ha\e necessitated tjie giant- 
 ing of a new trial h.iil not the ilcfcndant, liy 
 ])erniitting the cattle to remain in the possession 
 of |)Iaintifr for IS months after the puTchase, 
 caused the latter to alt-.-r his jHisition hy incur- 
 ring <'\penditure in regard to them and liy lieing 
 prevented from taking steps Iokccuic the return 
 
 of his nKincy. 
 
 A< (/■/.< V. IhiiloK, 7 K. vS: C, 2.'r> ; 
 
 7 C. L. T., .TJ.t. 
 
 18. Iliriii;; or sale with rlKht to iiurrliasc 
 
 Not a 1)111 of Hale Does not re(iiiire to be 
 filed -Usury -C. I', olitaincd a piano from I.'. 
 & S. on hire, with the privilege of purchasing it 
 for .S't.''t>, liy paying certain instalments within a 
 cei'tain time. .Among other conditions of a 
 written agreement ent»'red into liy C. I*, at the 
 tinu' of reiciving the piano Wei'c, that it should 
 remain the property of I'. ,^ S. until fully Jiaid 
 for, that in default of any instalment they 
 might resunu' possession without jirc^vious de- 
 mand, and that C. I*, should pay interest upf»n 
 the purchasi' money at 7 per cent. C. I*. |>aid 
 only two instalments amounting to .SI.V), and 
 then became inBolvent. On I'. & S. eltiiniing the 
 piano, they were opjxised by H. I..., a creilitor 
 of C. P., who claimed uuder an asHignment inude 
 
 to him by C. I', as secui-ity for his debt, ami 
 rei'ei\cd by him without any knowledge of this 
 agr'eemcnl with I'. i\: S. This assignnn'Ut was 
 duly tiled and registered. The .linlge in Insul- 
 veni'V ilecideil against the ilaim of I'. <V S. 
 upon the groinids that the agreement with lliein 
 was void foi' usury, interest at 7 per vv\\\. bein;^' 
 provided for; that having left the |»iano in ('. 
 I'.'s jMisse.ssion after tlu^ time for his i)aying for 
 it h.id expired, they could not set up their ciaiiii 
 against a tiniiii llili pun-liaser, and that lln'ir 
 agreement should hiive been tiled and regisleicil. 
 
 On appeal to the Supreme (ourt, 
 
 //'/'/, that thi' I'sury Statute did not ,i|i|ily 
 at all, as it was not the case of a loan but n iipn 
 ditional sale ; that the claim of I', it S, w.imiuI 
 Jirejudiced by their not having taken inuk ihc 
 piano ,is soon as the lime was u]i ; that ('. I'.'s 
 agreement with them, not being in tiie natiiie 
 of a bill of >ale, did not rei|Uiie to be I cgis- 
 tered, and that I', .'i; S., should ha\e Ijie piiiiio 
 on paying to II. I,, the aniount they iiad rv- 
 ceivcd on its account from ( '. I'. 
 
 When oblaining the rule ///•« fidiii tiic .Iml^'c 
 in Insolvency, I'. »t S did not produce the 
 original agrei'Uient of ( '. I'.'s with them. 
 
 Ill hi, that tliey were not i..,reby piecliiilcii 
 from producing it at the arguiiient of ilie iiili; 
 or aciiiunt ing for its nonproduction. 
 
 In iIk nirin.rnf I'l/b , W \. S. D.. :((•.'. 
 
 W). PrtTerrnllal ConNidcration Fraud - 
 
 Assignor eontinuing in po.ssession I'ret'eren- 
 tial to a bona fide creditor valid \\ In ii iIh' 
 consider alion expressed on the face of an as!^i>.'ii 
 incut is larger than the actual ibdil due liy \\v 
 delitoi- to the assignee, it is not nece»Muily 
 fraudulent. 
 
 The ile(!larcd intention to exclude any cinii- 
 lor or class of credilois, will not icndci- such an 
 assignment invalid. 
 
 I The assignor continuing in possession of thi' 
 I goods assigned is not a conclusive badge ol fiiUiil. 
 I'raud or no fraiul is a question that liclnn).'s 
 i entirely to the jury. 
 
 T'liidlf v. Siiin/ir, I Thoni., (Isl Ivl i., '31 ; 
 
 C.'iid l'A.),Mi. 
 
 20. Property granted by bill of sale- 
 
 Then assigneil Sold by assignee at auction- 
 Replevin against assignee without making 
 purchaser party I'laiiitill' held a bill of sahnf 
 a pair of oxen from .McL., the owner, win) cmi- 
 tinned in possession, the bill of sale beiiii; ilul) 
 recorded and upheld as valiil by tiic jury. 
 After making the bill of side, McL. was arrested 
 at the suit of defendant, and, on sweaiiiig mil 
 , of jail, assigned the oxen to the dufendunt, who 
 
241 
 
 HILLS OF SALE. 
 
 242 
 
 sdlil lliciii at iUUt'iMi In \V. ; \vlicifii|)iiii III); 
 plaiiiliil', iiiidiT a writ rif replevin ii;,Miiisl 
 (IctiiiiliUit, look llic oxen (iiil of tlif poNSi'Msioii 
 cpf W.. who WHS no parly to the suit. I'luiiitiH' 
 liiiviii^' olitaiiicci a Vfiiliit, tlii^ Coiiil nvt tin; 
 Miili< t aside with costs, iioiisiiitcd thf plaiiititi', 
 tivitij,' tiic dtfftidant the costs of action luit not 
 of trial, and din^tcd th(; liond to lie put on tile, 
 sulijcct to the order of the; < 'ourt or a .Judge. 
 
 /-'WSTC V. /{nin, ;< |{. .<t ('., (11. 
 
 'it. l'()Kscs8ion or Kninteo ConNtriictlon 
 
 of Revised StatuteH (4th series) chap, 84 
 ('hiiplcr SI, of the |{i'\iseii Statutes (Ith series), 
 "Of th<' prevention of frauds on creditors liy 
 se<n't iiiils of sah'," section I enacted that 
 "ivery liill of sah; • « • wliereliy the 
 ii>>iL'Mec shall have power * * " to lake 
 pii-scssion of any property * • ♦ .shall he 
 lilcd »ilii the l<e;{istrar of |)(;edsof tin; Comity 
 * * ' ritherwise such hill of sale as against 
 " * * sherili's • • * seizing tin; property 
 iinilci- proios of law, shall only have priority 
 and lake eli'ecl fioin the time of the tiling 
 lliirciif." ' 
 
 ll'/il. not to apply tti a case wiiere the' 
 (iiMiilce, micler a liill of .sale not tiled, had gone; '< 
 into ait iial possession of the properly jn'ior to J 
 the seizure liy the sherilf. 
 
 Mrhai, V. Jii// It a/., :> H. iV: <;., ]->H. 
 
 22. Shipping Levy by creditors on Nbarcs 
 
 of unregistered owner Bill of sale by regis- 
 tered owner Fraud and collusion Evidence ] 
 
 \V. S, and 15. iV !•". S. piocured supplies from , 
 panics in ,S|. .lohn, X. It., and llalif.i.x, N'. S., 
 to he used ill , ;e ci.:islruction of a vessel, 
 vvliiili. iifief her <-oinplet ion, was registered in 
 llic name of I!. S. ; to the parlies in St. .lolin, 
 \\'. .S., and to those in Halifax, I!. ,S., wlio.si; 
 iiiiiiic alone appeared upon tin; register, was 
 iipicseiiled as owner. Actions were liroiighl 
 liy the SI. dohu creditors against W. S. for the 
 giii'ils supplied on his credit, and judgments 
 <ihliiiiiiil, and executions issued, under which 
 llic Vessel was levied upon and sold as tlu; pro- 
 ]iiity iif \V. S. While |lie vessel was in the 
 ciLsliiily of the sherilV, and prior to the sale, 15. 
 S. executed a liill of .sale in the form reijiiired 
 liy the Act to the plaintill", one of the Halifax 
 criiliiciis, who immediately had the .same regis^ 
 tciiil. and received formal delivery of the vessel 
 fimii I!. S. The Hherill' sold all the interest of 
 ^\. S. ill the ve.ssel to defendant, and delivered 
 I' hill of sale of the same which was not 
 rciiiiilid. I'hiintitr thereupon hrouglit an 
 action of replevin, which eame on for trial, but, 
 in conseiiueuce of the length of the eauHe and , 
 
 insntlicient time, could not lie condudeil. At 
 the suggestion of the presiding .Indgi' a rule was 
 entered into, by which it Was agre(;il that a 
 verdict should pa.sH for )>laintitr, with power to 
 the Court to d(;terniiiie and draw tin; same infer- 
 eiiees fifim tin; evidence that a jury might do, 
 and either enter a verdict for p'aintiiror defend- 
 ant or ord(;r a non-,snit, as they might think lit, 
 and also w ith power to determine the ei|uitieH, 
 if any, and to order a sale of the vessel and 
 payment of tin; |irocc<;ils into court to abide the 
 juilgment. 
 
 //</'/, first, /iif Sir \V. ^■oung, C. .1., Des- 
 r.aires and l)oild, .M., (.Johnstone;, K. •!., 
 ilDiilih'ini, ami Wilkins, .!., ili-isi iiliini), that 
 15. .S., being the registered owner, was not pre- 
 cluded by the levy of executions against W. S., 
 fiom giving a bill of sale to the plainlitV and 
 transferring to the latter a possession siillicient 
 to support replevin. 
 
 Al-iii, under till; authority of L'tin v. />(>r-<ui/, 
 I Old, ,'i7."i, that replevin would lie. 
 
 .Second, /iir Sir \V. N ouiig, ( '. •!., .lohnstoiie, 
 K. .1., and l)esl5arres, .1., that the registry of 
 tin; ve.ssel )it;ing only /irinin. j'(ici> evidence of 
 t it le, and there li(;iiig evidence of fraud and col- 
 lusion b(;tweeii \V. .S. and 15. .S. in regard to the 
 registry in order to defeat tin; creditors of the 
 fnrnier, that under the eiiuitable powers loii- 
 ferr(;il by the rule the Jiarties atrecled by the 
 fraud should be restored to their just ri'lations 
 to the vessel, and tin; St. .loliii and Halifax 
 i;reditors In; ailniitt(;d to a ralalih; )iarticijiatioli 
 in the pioceeds. 
 
 /'' ;• Wilkins, . I., that to draw inferences of 
 fraud, uiili;sK they art; irresistible in their char- 
 acter, for the purpo.se of annulling a registered 
 /iriiiKi jHfit tilh; to a I5ritisli ship, is beyond 
 any jndii ial competency. 
 
 Pi r Dodd, .F., that fraud was not sulliciei.tly 
 proved to avoid the /iriiiinjhiii title conft'rred 
 by the registry. 
 
 (;,■'! Ill V. /,'i,l,ir/yi,ii, •_> >■'. S. I>., -Ml. 
 
 2.3. Stilpping No bill or sale made by 
 
 owner on selling Still not liable on aetion for 
 lo8H of cargo after sale Where a part owner 
 of a ship soil! his share to the other jiart-owner, 
 and no bill of .sale was exe(;uted at the time, nor 
 was any entry of the transfer made on the 
 register, 
 
 //(/il, in an action brought against him for 
 the loss of iron shipp(;d on board the; ves.sel after 
 such sale, that he was not liable. 
 
 FowliT V. Jiordin, Cochran, 79. 
 
 24. Shipping Rights of Judgment credi- 
 tors aa against assignee where no bill of sale 
 under Merchants' Shipping Act— Execution — 
 
243 
 
 BOND. 
 
 244 
 
 Replevin— W. II. M. miido an iiKsignmcnt to' 
 plaintitT f<ir tlie benefit of lii.s cicditin-s, of lii.s 
 entire propeity including' ii nunilni- of slmrcs in 
 the scliooner (1. W. Mnme, liiit no liill of sale 
 of tlie shares us reijuiieil hy tlie Mereliunts' 
 Shipping Aet was eitlier exeeuteil or ilehverecl 
 to phxintitl'. 1). iV M. having ol)taineil a jndg- 
 nient against \V. If. M., issueil a writ of excen- 
 tion umU'i' whiih defendant, as Siicrill', levied 
 npon tlie shares iind pmeeeded to sell. I'rior to 
 the sale, |ilaintiti' a]i|ieareil lu't'ore the liegistrar 
 of Shii)piMg. and after making a deelaration of 
 ownership was entered n])on the register as 
 owner of the shares. 
 
 llrhl. that plaintitl had no ciinitalile right 
 whicii eould lie so asserted or whieli could pre- 
 vail over the jmlgment ereditor ami the levy 
 made hy the defend. int. ' 
 
 Majrutt v. J'n-;lii>-'i. (i H. i^t (i.. '217 ; 
 tiC. L. T., 44(i. 
 
 25. rnccrtaint) in ilcscrlptlon Void fur 
 
 — riaintill' elainuil a cow nndi^i- a liill of .sale 
 from one M.. hy «liii'li .M. conveyed to the 
 plaintitr " (.)ne red co\\ four years old, v.iliied 
 
 Ht.S'-'l." 
 
 //</(/. that the clescri|>tion was insullicient to 
 pass the pro[)erly iu the cow, as it did not in 
 any way distinguish the cow so that she cudd 
 be identilied. 
 
 Iliiijhnti v. Mr( 'o/hiiii. 
 •J(i X. .s. H., (SU. .V C), -202; 
 S C. L. T.. .SSI. 
 
 BO.\KD OF HEALTH. 
 Contract of iMibllc aKrnts Individual lia> 
 
 bility for breach At a meet ing of t he inhaliiianis 
 of .'"Sydney defendants were a|ii>oinleda coiuniit- 
 tee to aet as a Hoard of Health, in conse(juence 
 of an outbreak of smallpox. They were sulwe- 
 (piently ap])ointeil as such Hoard by the Men- 
 tenant-! iovernor, umU'r Uli K. .'^., e. IMI. and 
 nmde a contract with plaintiii' for medical sir- 
 vii'es while the disease should continue in the 
 jilaee, at a tixeil rate jx r dii in. 'I'lu'y dispensed 
 with his services before the ilisease had been 
 eradieateil. In an action for wrongfid dismissal 
 the jnry found that ))laintiH' diil not know at 
 the time of the contract of the appointment by 
 the Lieutenant-! iovernor of the delcndauts to 
 be a Board of Health, and that the contract was 
 made with them in their individual capacity. 
 
 Ill III. thai the action was ix roiilrar/ii, that 
 defendants, whether acting Infra rinx or iilim 
 r/n.vof their authority as a Hoard of Health, 
 w^'re to be reg.irded as ])ublic agents, not indi- 
 vidually liable on the contract which they had 
 made on behalf of the public, and that the liiul- 
 ings of the jury were not warranted by evidence 
 that the contract was iruule by defendants with 
 plainlitrin the ordinary way in which a eontract 
 would be made by jiidilie agents. 
 
 Verdict for ))laintill' set aside. 
 
 MrKiiii V. Moon .^ a/., 4 H. \ C. :\%. 
 
 26. Wronsfiil removal of goods coverrd 
 
 by Liability of partner foi- lortioiis act of 
 co-partner — Defemlants sold a quantity of goods 
 to H. who. ])revions to receiving ilclivery, made 
 a bill of sale to jilaintilt's, covering after aci|iiired 
 pro))erty. I'laintitVs. after the goods had been 
 <lelivered, went into possession. 
 
 The goods Were removed by one of the defen- 
 dants without the knowledge of his jiartnei'. 
 Judgment wa.>i given in the t'ounty Court against 
 both defendants as for a wrongful removal. De- 
 femlants having appealed. 
 
 Tile apjieal was dismissed with costs. 
 
 Shdljnril il (tl. V. Xi/.^(iii 1 1 ft/., 
 20 X. .s. K., (S K. i«v: (i.), ;i2;i ; 
 !(C. L. T., 02. 
 
 See, a/,so, ASSIGNMENT. 
 
 BLOCKADE- 
 .Su SHIPPING. 
 
 BOND. 
 
 1. Action on appeal bond broiiglil \)i 
 
 Clerk of License under 3rd R. S., c. 75 Defence 
 did not make -Clerk not liable for costs In 
 an action brought in the .Supreme Court by the 
 Clerk of License on an apjieal bond |)urpoitiiig 
 to be made by the defendant ami another on an 
 appeal against a eonvietion under '.UA K. >■• 
 c. 7.">, "')f Licenses,"' &c.. a verdict was fnuml 
 for defendant on the grouiul that he hail imt 
 executed the bond (Ui which the suit was 
 brought. 
 
 JIdil. that the Clerk of License was not liahlc 
 for costs of suit. 
 
 Quii.ii V. .UiuTdi/, I U. .V- ('.. ■'■'*• 
 
 2. Action on bail-bond Burden of proof 
 
 i — Act I equiring bond to be filed merely di- 
 rectory -Effect of alteration before delivery 
 — 5thR. S., c. 104, O. xliv. R., 13-In an ao- 
 tirin against defemlants as sureties on a hail- 
 bond, the defence ehielly relied on was that the 
 bond was vitiated by material alterations made 
 
24.-. BOND. 246 
 
 tliuitiii iiftfi' its fXfculioii, ami witliDiil tliu plaiiititV to pi-dvc that iliffinlaiil's wift-, who 
 privily of ilofi'iiilants, l.y the erasui*' of llie gave cvidi'iicc for the clfffinliiiit as to tin' ticat- 
 ilale iMcritioiicil for the a|i|)faraiice of tlie defun- ' iiit'iit of the ti'staloi' in (IclVinlaiifs hoiisi', liad 
 ('ant. ami tin; siilistitiltion of another ilate. lieen al).sent a !oni.'iT peiioij tlian .slie liail testi- 
 
 //.W. alliriMing tlie judgment of liiteiiie, J., tied, and tliat lier eviileiKc was for tliat reason 
 tlial llie allei^fd alteration lieing noted in tiie unreiialije. 
 
 alli>l,ilinn rlaiise, tlie luilclen was npoii tiie de- //,/,/. tliat as tiiere was am|)le evidenee iuile- 
 fiii.laiil-of siiowiiii.' ilial it was niaih'siil>se(|ueiit peiidcn. of tliat of defendant's wife to warrant 
 t'l the exeriitioii of the lioiid. part liiilarlv in the lindiiii; of the jury, it eoiild not lie distiirl)ed. 
 view of the faet that defeiiilants did not eall as I'liiiiiiinihiiiii v. Miihinii ii, \ \\. ic ( '. ,S89. 
 
 a Hiliiis> tlieirown eounsel. who was an attest- 
 ing' «iliie,-s to the lioml, and in a position to '*' -*t'<loil (Ml bOIld foP rallhrill (llsolliirse 
 |in.vr ul„.ii the alteration, if any, was made. "''duty liy piihlie oiKcial-Fraiid Negligeiu'e 
 
 /'.-• mirhie, ,1,, ill III.. judL'nieiit appi.aled Li'i'^ilitv of surety - Proximate eaiise — 
 ficin, llial the elaiise of the statute le,|uiriuj,'^.'**''l'l"^' In an a, tion .-.Lrainst defendant as one 
 luil-linii,!.-. to he lile.l is merely diivetory, ,in.l "* ""' ■"•"■'"i'''^ "" 'i '"'lid purport in^' to have 
 
 tint fiihire t nply with it" will not Vender '"'''" ^'i^*^'" *'"' "'^' f''ithful diselmrge of the 
 
 thclKiiHl invalid. duties of tlie aj.'ent i>f the ( iovernnient .Saviiij;.s 
 
 .1/.,,. that assuniinu that th.. hond was altered '' '^""'^- "' Anna]M)lis, it appeared that tlie hoiid 
 alterexeeution, hy niakinua ehan-e in thedate ■""' ''"' '""i'l'i^'i' "'' ju-stiliration required to 
 at wliirlitliedefei'.dant was to appear, .Mieli an "''■'""•""•^ '* "'■''' ^'-""•'' ''>' "''' defendant in 
 alt.ial ion, if ni.idehefoiv the hou.l was. lelivered '''""'" = ''"" 'I"' '"""1 ^'t t lie tiiii.. was without 
 tLth.'Sheritr. ,ind h..fore it eaiiie into the eiis- "'■"'"■ 'I'lt'' '"' ■I'liount. .iii.l that th.' afli.lavit was 
 t.Kly of tlie pl.iintill', wonhl not vitiate the l.oml ' !""^'"''' '^"'""- ''''' '"""' "''- ■■"il'''<'li'ently hll.'.l 
 .jr allonl a .lefenee to th.' a.tion. I '" ^"'' ''""''l'-' •'"■ iummnt authorized l.y defeii.l- 
 
 ;>;./;. ./ -./. v. \V,„„l,r,.,-tli ./ <il.. 7 l;. ^S: <;., <m : ""*• ''"'"' '''*^ atlidavit, after havjni,' l,i.en lill..d 
 
 -(. f^ 'I' 14^ ill- was oertitie.l as sworn l.y a .lustiee of the 
 
 .Alliniieil on ajijieal to th.. .Siipr«.ni.' Court of ' ^''"^'''■ 
 Ciiiiii,];,. Ihlil. MrDonahl, ('. .].. i/i'.-:,, ii/iii:i. that the 
 
 \V,,nihi;,rlh r. /</,■/,■,',, |4 S. ( '. U.. 7;{4. '"""' ''''^ '"J-' ''i'*^'" ■'^•^'•'pted on th.. faith of the 
 
 eertilicat.' of the dnstiee, and the e..rtitie,ite not 
 
 3. Adioii on bond al suit Qiiron Kolalor !"''"^ '"r',' '"'V"'"'" ':'' •,"";':' ''>' '''•'""■'^""- "'« 
 
 ordered to be added to be responsible foreosts '■>'"■'■ '.""''l '"" '"' "'-I'' "'^'''1<' '"• "'>' ''-'t'"'' "f 
 
 ■n 11.' . 1 1 II «■ . ' I'e olhc.'l'. 
 
 — llieil.rlaratloii set out a lion.l to Her N ai.s- ,, .„ , ,, ,, . ,, .,,., 
 
 ty, .oii.lition.il tor ilie ilue perfornianee l.v ,, ,. , 
 
 , . , . , . , . ' . • () ( . L. 1 ., 4.)4. 
 
 !)n iijiji'iil III tl,i Siijifi 11)1 < 'iiiir/ III' ( 'itiiiii/fi, 
 
 il..f.iiilaiil .if his .liities as jruardiau of the 
 
 (Stall, of a liinatie. Defen.Iant Jilea.led an ..iiuit ■ 
 
 alil..pli.a,andask.'.!f..rtlie..ipiitalil.. int.ifereiu.e ^^'''l. r.'V .rsiiii: th.. judirnieut of the Court 
 
 ef the Ciiiut. .\ v,.|,|i,.t havinj; ln.en f.nihd for '"'•""• tl>'if 'l'^' making' of the li.m.l was the 
 
 tlcltii.laiil, an.l a rule taken t.i set it asi.le, the ''*-'"' '-'•^"■''*'' "^ ''•'< aeeeptan...., an.l the defendant 
 
 ('"lilt liel.l that before proceeding to give ju.lg- '"^''"i^' e.st.ippe.l, the Crown was ..utitl.Ml to ju.lg- 
 
 laciit as to whether there shoiil.l b.. a new trial ""''i'- 
 
 "!• not. the name of some person .sh.mM l„. ''■ '• '''"■''•!'• " *'• I- 'I"-- -!:'• 
 
 iiuii.aiu...,i as r..h,t.ir, t.i be responsible f,>r ...sts «. .\clmlnlstratlon bontl - KctUm on - 
 
 iuiil u'ave l..ave to tlie Att.irn.'V-t ieiieral t.i 
 
 Etpiitable defenee that detieieney of as.set8 
 
 """'"' ""■ l"-""'-'''!'".-'^ ae....r.lingly. resulted from administratrix trading with the 
 
 'Ji'"i, V. /hnii/ihr,,/. •_> R. \- ('.. liiM). assets, with knowledge of creditors, instead 
 
 ofsettlingestate Estoppel But only against 
 
 4. Action on bond for inalnlenant'C VCP- consenting creditors An a.tion was brought 
 
 diet tor defendant sustained .\n action w.is at eonm law by the .Indge of Probate against 
 
 'i''%'lit (in ,1 bon.l made by .h.f,.ndant eon- an administratrix an.l sur.'ties f..r n..t faithfully 
 
 'litiorie.l f„r the suitable maintenanee ..f th.. a.lmmisteiiiig. The a.lministratrix ina.le .le- 
 
 rliinitiirs t..stat..r. the original plaintitl'. ami fault, ami th.' sureties pleaded an eipiitable 
 
 |l|niiiyfoundaveidiet for defendant. A rule .lefenee that the administratrix had, with the 
 
 "^•" was taken to set the vcr.lict aside ..n several knowle.lge of the creditors, at whose instance 
 
 grounds, but the only groun.l relie.l ..n at the the suit was brought, ontiniie.l trading instea.l 
 
 argument was the rejection of evi.lence ten- of settling tlie estate of the intestate, an.l that 
 
 <"crtat the close of defendant's case by the the deficiency of assets ha.l resulted from such 
 
247 
 
 BOND. 
 
 248 
 
 triulinj;. The jury found tlie issues raised by ' taken under section 100 of the County Coiuts 
 tliis i)lea in favor of the defendants, and the : Consolidation Act. was given merely to ])ay the 
 cause was then referred to the Ktiuity Ciunt, costs of ai)iieal, and not to respond tiie judgment 
 where tiie learned Judge held that the creditors ' on appeal, so as to cover costs helow. On 
 were estopped l>y tlieir consent, and a decree 1 motion to dismiss the appeal the Court ordered 
 was made in favor of tlie defendants with costs, a new liond to he tiletl, the appellant to pay tiie 
 
 (.»n appeal from this decree, the Court lulil, costs of motion, 
 tiiat, however this eijuitahle defence migiit avail Taijlor v. Onrin, <) R. & (1., •JflO; 
 
 against tlie eieditors so assenting, it atVorded no | 6 C. L. T. , 441. 
 
 answer to tliose, if anv, wlio had not aecjuiesced ; ^^ . . - ^ , .. ^. 
 
 and the cause was referred to a n,aster to ascer- "• Assignment Of bond tO CO-SUrC 68- 
 tain whether there were any creditors unaflected Demurrer-Denu.rrer to declaration l.y ohhgee 
 
 on hond assigned to co-sureties who had jiiiid 
 defendant's deht, overnded. 
 
 Kirhrni'if Bank- v. liroini, '2 R. & C., .TO. 
 
 1*2. Attachment -Exccutlon-No bond for 
 
 —Execution set aside — Where an exec\ition is 
 
 taken out on an attachment against an alisent 
 
 or alisconding delitor, without the hond foisiicli 
 
 execution having lieen allowed hy the Court or 
 
 a .ludge, tlie Court will set it aside hut witliniit 
 
 I. r •. 1 -1 . .1 „„ I >i. ,♦ costs, thouL'h tile bond lie actually made ami 
 
 forfeited, resisteil payment on the ground that >-'■'." b J 
 
 , , 1 .1 1 11 11.,, 1.,.,,.. .,1.,. tiled hcfore the issue of the execution, and the 
 
 when lie siu'Uecl the liond lie did not know who > <-• 
 
 , ■ „. , ,, ,„ sureties unexceptionable. 
 
 Ins co-surety was to he. ' ,, , ,^, i .«. 
 
 „,,,., , r . , ., • i A ail V. Ca-'ird , 1 Old., 40,). 
 
 //i I , that 111 the absence of fraud this was no ^ - k. . v^ , 
 
 by assent or knowledge who were entitled to 
 adininistratiiui. 
 
 Siiilin-html if uL v. Wi/mou ft al., 
 
 •2R. >t 0., .S.-^; 
 
 •_' C. L. T., it.-). 
 
 I. Appeal bond Defence of one surety 
 
 that at time he signed bond he did not know 
 who his co-surety was to be— Defeinlant, one 
 of the sureties on an a])])eal bonil which became 
 
 defence. 
 
 Sinifh V. Mi-Xil/, 3 X. S. 1)., .SIT. 
 
 8. Appeal bond on appeal fk-om Justice 
 
 of Peace -An attorney one of the sureties- 
 Waiver of claim against surety— An ajipeal 
 being taken from a magistrate's decision, the 
 defendant and one \V., an attorney of the 
 Supreme Court, became sureties on the appeal 
 bond. On the ground of W. being a surety the 
 bond was held irregular and the appeal dis- 
 missed by the .Supreme Court. I'laintitl' then 
 resorted to his original judgment, and the exe- 
 cution being returned unsatisfied, sued defendant 
 on the bond. 
 
 //(/'/, that he could not recover, as by the 
 
 course he hail taken he had waived all right or 
 
 claim against defeiidaiil under the appeal bond. 
 
 .]f<X,!f v. .]fnnhoii-ie, H X. S. D., .314. 
 
 0. Appeal f^om Probate Court -Form of 
 
 bond on — 'rhe.finlge of Probate refused to grant 
 an appeal from his decision, on the ground that 
 the bond, although in the form given in the 
 statute, did not state what cause was pending. 
 The ajipeal was then grante<l by a .Judge of the 
 Supreme Court at Chambers. 
 
 H(:/il, that the bond was in the proper form. 
 Ill ri Hath E.ital», 2 R. & (i., 182 ; 
 i C. L. T., 663. 
 
 13. Bond by creditor's assignee- liabili- 
 ty of sureties— Costs refused the Crown -R. 
 being ajjpointed creditor's asignce of an insol- 
 vent estate, gave a bond as security for the per- 
 formance of his duties with the names nf T. 
 and R. J. & Co., of which tirm he was a iiieiii- 
 ber, as sureties. R. had no authority to sign 
 the tirm name to the bond, but there was no 
 allegation or proof or anything on the face of 
 the bond to raise an implication that it was 
 signed by T., on any condition or reservation 
 that it should be also signed by R. J. & Co. 
 
 Held, that T. was liable. 
 
 The bond given by the assignee umler the 
 Act, was tr) the Crown, and in the Court below 
 judgment was for the plaintiff with costs. 
 
 The Court on appeal refused to allow costs to 
 the Crown either of the trial or of the apiH-'al. 
 
 McDonald, C. J. dlsseii/iiiij, on the ground 
 that security for costs had been given by the 
 Crown, and that this distinguished the case 
 from cases in which costs are neither alloweil to 
 nor given against the Crown. 
 
 Qiiixn V. liiimnty tt al., 7 R. & *■•> 1" ' 
 7 C. L. T., '.'45. 
 
 14. Bond for sale of land - Failure to 
 
 complete purchase — Agreement to apply 
 money paid on account of purchase to rent- 
 Recovery baclc of money paid on purchase in 
 10. Appeal-Insufllelent bond— New bond excess of rent-Defendant entered into a bond 
 ordered to be filed— The bond for an appeal , to plaintiff under seal, in which it was recited 
 
249 BOND. 2r)0 
 
 that plaiiitit}' luul agri'i'd to jJiuvliiisL- from wliilo, liy iiii anieii(1ineiit iiftoi' tlie oomiiience- 
 ikftiiiliiiit 11 tnict of hind for 81,"J<K) with inoiit of tlie suit, judgiuunt was rucovert'd oi: u 
 ill tiit^t, iin follows: Oiiu year's iiiturcsl to liu " bill i:f salu dated lliu 1st August, ISSl, <u', in 
 |iaiil ill one year from dato of Ixmd ; one year's the alternative, under an assignment dated on 
 iiili list ill two years ; and one year's interest, the I'Jth .lanuary, ISS.'i." 
 
 tni,'.tliei' with the prineijial, in Ihi-ee years. It 'I'lic condition of the lioiid of indemnity liound 
 Wits fiutlier s]ieeitied that if default should he the defendants "from time to time, ami at all 
 niiiile ill tiic payment of the priiieijial or interest times hereafter, well and sutlieienlly, to «ave 
 as iiLTei'il upon, ))laiiitilV should heeome a tenant iiarmless and keep indeinnilied tiie .said .SJieiiH' 
 tddefeiiclaiu at an amitial rent of .':i!7l.', and tliat * * * from and against all losses, costs, eharges, 
 all |iayiiients made liy plaintitl', or n])on certain daiiiaj^es and expenses * « * )iy icason of 
 speiilieil notes of iiand imlorsed l>y way of selling the said j)roperty so sei/eil » * « ^^^,l 
 si'oiiiity for the puivhase money, should he also from and againsl all actions * * * or any 
 applied to the iiileiest <ir rent as the I'ase might procedure at law' or in eipiity, w iiich now, or 
 he. .\iiuthii' part of the agreement stated tiiat shall or may at any time lie lirought. ciiiimieiiced 
 wlialevir sums wi'ie ap|)lied, as aforesaid, the or pnisecuted lightfnlly or wrongfully against 
 rciiiaiuiler sliould lie ap]»lied to reducing the the said .Slierill' * * * for or liy renMUi or 
 jiiiiicipal siiiii. And, further, that in the event means of the selling of the said property." 
 lit plaiiititr failing to pay as aforesaid, and //</'/, that the words of the condition were 
 .siineiideriiig up the premises at the end of the sullieient to protect the plaintill', and were not 
 thire yiiirs. idl ]iaymeiits made in that ease controlled hy the words in the recital, in such a 
 liiiiig applied Inwards rent at the rate aforesaid, way as to limit the lialiility of the defendants to 
 till' said uiite and the said indorsed note shall lie a claim under the particular liill of sale therein 
 given liy the said defendant, \'c. meiitiniied. 
 
 J/i/il, that the plaintitf was entitled to A/^<i, that the recovery nf tiie judgment in 
 
 I'l'iiiver the aiiHiuiit that he had paid defendant respect to tlie mattei' against wliii'h plaintill' had 
 
 rivi r and aliine the amount appropriated towards heeii indeinnilied, gave liim a right of action, 
 
 the iiiit for the ])eiiod for which he occn|)ied. and that he was not oliliged to wail until jiay- 
 
 I[ohii( •< y. I)(ii-:<n,i, .'ill. i*t (;., 01. nient of the amount of the jiidgiiienl had lieell 
 
 enforced liefore commencing his suit. 
 
 l.». KoiUllllSfeJUl Of bail-plCfC-liule ///s/ lioim^ll x. Ilifrhi, .t„l., 
 
 miller the statute for a new trial discharged on -" ^' ''^- ''•' ('"^ ''• •''^ ''•)> --^'* » 
 
 tliegrniiud tliiit a liond w.is tiled iiisteail of a '*^ ^'- '-'■ 'i'-i ^S'tJ- 
 
 liail-pii'ce. 
 
 MrK, ,n,n v. /', ., .y, 1 K. .^: < i. , .'«»-'. js, „„„„ ,„j,,,p ,„ ,1,^,.^ obHsCCS .ICtlOII 
 
 l)v two where third dead — Death .should be 
 
 10. UOIHI Instead of bail-piece on eerti- aileged-A lioud was nuule to three obligees, 
 "''"'T' "',"""'' '" '''■'""^■*^' '^ eoiiviclion for one of whom had died before the action, which 
 vinlatiou of the License '.aws in the City of was brought by the surviving rd.ligees and the 
 Halifax, i|iiaslied on the ground that a bond had executrix of the decca.sed obligee. At the trial 
 beuii tiled in.stead of a bail-piece. plaintillV coiin.sel obtained leave to strikeout 
 
 Th Cil,, of Halifax v. L,ak;, ■_> H. & (i., 14l>. the name of the executrix. There was no alle- 
 
 gation in the writ of the death of one of the 
 
 11. HOIUl of indeillllity-- Action on by obligees, but evidence of the fact was given at 
 Sherirt' I'laiiitiif, as Sheriff of the Omnty of t''^-' f''''' 
 
 .\iiiiap(ilis, sueil the defendants on a joint and It' Id, that the omission in the writ was fatal, 
 sivcial hond of indemnity given by them to '^"^^ that the verdict by consent for plaintitl's 
 iiiilwiiiiify him against all h)sse.s, &e. incurred '""«* ^^ set aside. 
 
 ill ri's,n.,.t „f tiiy j,.^]y „f ^.j.,.j,^jn ,),.,)])erty taken -Z^'"''^' ^' «'• ^'- ^^n''«, •'? R- & ('•, 3"> ; 
 
 ''V liiin under a writ of execution, issued on a 2 C. L. T., G03. 
 
 jii'lgiaeiit recovered by defendants against \V. i 
 
 !'• s., the pn.i)erty having been claimed by D. i 19. Building Contract -Bond fof payment 
 
 B. miller a bill of sale. of price— Departure by plaintiff from terms 
 
 lif ])roperty having been sold by plaintitf of contract— Sureties released— In an action 
 
 "iiiler the execution, he was sued by D. B., and against the principal and sureties on a bond to 
 
 judgment recovered against him. the plaintiff for the payment of the costs of a 
 
 1 he bond of indemnity recited a "bill of house which the plaintiff was to build for the 
 
 sa e, dated the ■ day of August, 188.'}," principal, it appeared that the work was not 
 
2.-) I 
 
 BOM). 
 
 2o2 
 
 (lour ill Ntriit |iiirsiiiiii( (• "f tlir ;i^,'i('(iiuiit iiinl 
 Kpi'iiliciiliiiii^*. 'I'lic jiliiiiH ri't'tiifil to iiilluMdii 
 ti'int iiiiil wliii'li Wile |>iirt <if it. well' imt |iiil in 
 eviililiic. 'I'hr IMiMiii ciiiplDynl liytiir ilispci' 
 tfir iiiiiiicil ill liic ciiiitiiut, wlici wns to .su|Hiiii- 
 tc'iul \\w wiiik, Mils r*ii|Hi'.s('(li'(l liy iiiiotinr \>y 
 Jilliilitill' wilhciiil the icpiistiit 1)1' I lie (Icfi'liiliilil.s. 
 
 liiyiii^,' till' inili'liti'iliii'Ns in Ciitlfi' only, uiii' jiar- 
 tiiiihirs ;ir<iiiilin(.'ly. ■Iiulj.jiiicnt w.is rcinvi'iixl 
 iii.',iiiisl Ciitli'i', iiii"! nil cxiM iitii'ii issiicil (iiii'ii(>(l 
 liv ilic .Sliiiill (it .\iiiiii|)(ilis ill till' iLsiiiil liiiiiii 
 liiit witlimil iiiiy iiiciiiisiiiHiit i's|Hiiiilly ilii'cciiiig 
 the ."<li(i ill' to liikf till' liddy. Nncvccutidli was 
 pliucil ill the liaiiiis cif tiic .Slirrill (if Halifax, 
 
 /A/</, thill iiliiintill' ii.ulil only rr.'ovir on ii ami tlir .sjiciill' of Aniiii|ii>lis. iiftiT lioMiiiH the 
 
 tpiaii'iii:! /inriilf. iiiiil tliiit, iis tliiTi' wiiH Hot 
 sulliiiiiit tviiUiiri' to iiiiilili' tin' jiirv to ililcr 
 
 I'Xi'fUtion sixty <liiy.-<. ii'tiiincil iiov til iiinnhix. 
 //'/(/, timt till- I'Xi'ciitioii linil lici-n |iio|Hily 
 
 mini' liow t'iir ilif coiitniit liiul Ufiii ilfpiirtfcl iiliiii'il in tlio linnils "f tlii' SliiTilV of AniiiiiMilin 
 fioni, iiiid. iis the Miritifs <oulcl not \n- lioiiiid County, in wliirli tlie vcmif in the oiigiiiiil lutinn 
 liy the iipiioinlnicnl of tlif new iiis|ii<tor, tin 
 
 veniict for pliiintill iiiiist lie sft iisiiio. 
 
 /■''/rl, V. /.'//.•/,/, ,f 1,1., ;t It. iV (i., 
 
 wiis liiiil, iiiiil not ill Ifiilifiix, w liiTi^ tlii' ariuxt 
 wiiH niiiili' ; mill thiit the olijiMtion as to the 
 ■K»7. iiiiiinilnicnt of the writ I'oiilil not prevail, iis 
 there Wiis nothiliL.' hefoie the Coiiit to show the 
 iiiitureof the ilelit sworn to in the iitiiilavit on 
 w liieli the eapiiis issued, or thiit the plaintill' had 
 ■< /-/('(oY/zv to remove ,1 ,„,i reeoverud on the deeliiiation as originally 
 fiiiined, liilt that in order to eniilile iilainliir to 
 liriiij,' iirtioii iigiiinst the defeiidiint as hail, ii writ 
 should have lieeii placed in the .Slieritl 's hiiiids 
 with iiisti'iietions indorsed to take the Imily of 
 the ]irineipal. 
 
 (Umi'M V. nUuk, ;< K. I't C, I'.'D, 
 
 20. Ccrllorarl Itoiid Breach of ('<»ii(lt 
 
 tion Action for Failure to prove breach 
 Duiillj,' the peiideiuy of 
 
 conviction of the defendant for selling intoxicat- 
 ing liijiiors contrary to kiw, defendant wasagiiin 
 convicted iilld lilieil ,"<■_'•_'. S((, iliclllsi\e of costs, 
 which wiis reduced lielow •"*'-'<> hy piirt payment, 
 and action Wiis Kroiight in the County Court for 
 the liiiliince, (III ii liond conditioned that defen- 
 diint would not sell ••during the pendency of i 
 the aiipeal " froiii the lirst conviction. There I ^ „ „_, _ „ ., 
 
 I .1.111 , 11 li, .,„.. .>„.. 22. Cond ton to pay over money Equit. 
 
 was no evidence tli.it he had sold iKpior per- , , , , ,, , . i x. x, i- i i 
 
 ,, , .. 1 .1 . r 111 able defence— Robbed ot the Hunilo a (Icdi- 
 
 sonallv, liiit It iippciired thai liniior had lieeii , . , , tt .r ■ i-.- i ,• 
 
 , ,■ , . I ,, rivlioii on a bond to Her Majesty, comlitumcil tor 
 
 sold on the premises liv ii Wdinaii who was not ^. , , .• i 
 
 , 1 .1 1 f 1 ' ,• f 1 1 1 t , the performance by one of the deteiidiiiits »t 
 
 shown to lie till! defendant swite, child or servant. ' ' •' 
 
 //(/(/, that the lirciich of the condition of the 
 bond held not been proved. 
 
 Quarrv, w hetlier even a sale proved to have 
 been niade by defendant's wife, child or servant 
 wouUl be a breach of the condition. 
 
 (Jmtn V. McKciirJi, 1 R. k O., 488. 
 
 the duties of collector of rates, iiiid llic iui- 
 mediate payment over to the County Tieiisuiir 
 of .such rates whenever the sums icceivwl 
 umoimted to l?MK>, defendiints jileaded. on 
 eiiuitiible grounds, that while the -said cdllector 
 was travelling on the tjhieen's highway w itii the 
 sum of .'*.'Wtl lawfully in his possession fur the 
 
 21. Conditioned to render defendant to ' P">P"^e of ,,i.ying it over to the County Tm- 
 
 Sherift- of Halifax-Execution placed in hands >^<"'^'-. '>^-' ^' ■'•"• "'"'""t "">' f'"'" "'' "'"" "^ '''"' 
 of Sheriff of Annapolis where was venue of ««''Cf, forcibly and feh.niouslyrobbedof.saidsum. 
 action-Held properly so-Amendment-In- ! '/''''- "» demurrer, that the plea was go-nl. 
 dorsement of execution-Tl.e original plaintiff, j '•"" <^" ^'^ <^'«''" '"» ' ' "/- •"' K- * <- •' ■"'■ 
 
 who died after the commencement of the suit, I 
 
 the action being continued by his administrators, j 23. GIven by prisoner With Surety tO Ob- 
 issued at Annapolis a writ of capias against one J tain jail limits — Cannot be transferred by 
 Cutler, returnable at Annapolis, directed to the indorsement as a bail-bond— The defemliiiit 
 Sheriff of Queens or any other Sheriff, under ' having been arrested on an execution, ohtaineil 
 which Cutler was arrested by the Sheriff of j the privilege of jail limits, as fixed by an order 
 Halifax County, in his bailiwick, and held to bail, ; of Court under 4tb R. S., c. 22, s. 7, ami gave a 
 
 defendant becoming surety, and the condition of 
 the bond being that Cutler shouhl be rendered 
 into the custody of the Sheriff of Halifax. The 
 
 bond with a surety to the Sheriff, who assigned 
 it to plaintiff. 
 
 Htkl, that the bond could not be triinsferrcd 
 
 declaration in the suit against Cutler was on a by indorsement as a bail-bond so as to vest » 
 bill of exchange drawn by Cutler and others and right of action in the transferee, and that four- 
 dishonored, with particulars applicable to such , teen days' notice of action must be given by tli« 
 a count, together with common counts laying \ assignee. 
 
 the indebtedness in Cutler and said others, but 
 after issue joined common counts were added, 
 
 Qitaere, as to legality of the bond. 
 
 Hone v. Prtnckryast, 1 R. A Ci., 385. 
 
2.':? 
 
 BOND. 
 
 2:)-i. 
 
 24. Bond Kivrn (o Miinlripnilt} as scrur 
 
 ity for ottictT No weals attixtnl by HiirutieH 
 
 wliffciii he wiiH jiiiiioil liy live .siirclics ini' his 
 licli'lity ami '^khA cniidiiit, tlio |Miiiilly of the 
 
 Atlixcil liy i)riiicii)iil hffore dflivcry Suretii'w ImhhI hrin;.' s|u,(M((i, aiid ihf ((iiiililiiiii itviting 
 eMtopptd from ntttiiif{ up want of Ht-aU after that ciich «iiifty wum IhxiikI in thr siini of .liM.fKK). 
 acceptiince of homl Di tVnclaniM signeil their , Thu nislilcr liccanie a ilcfiuiltiT in ii very liirgo 
 iiiime.". ax sureties to an nnexeented hond for amount, and the plaintilf entered into negoiia- 
 llif fiiithfid disehar;;e liy M. of his duties as tio?is with K., ono of the snieties, which 
 ,liili and treasurer of the plaintitV Munieipality, resulted in an a|,'reeiuent between thein, where- 
 l)iit alli\ed no seals. M. suliswiucntly attached ' l.y K. undertook to pay oiielifth of the l>alaneo 
 Hiids and his own signature to the bond and due upon the bond, after the dediution of cer- 
 foruarded it by mail to the Warden of the tain credits, and pave his note for the amount. 
 Miniicipalily. "' ' -' • • ■■■- ■ ... 
 
 /l</il. /" /• \'.'eatiieilie, .(.. and .\b'|)onald, .1., 
 thai the bylaw under which the Imnd was 
 
 tak.ii was /»/,Y, ,/,v.,, and tiiat the defendants , „,,, „,„., ..^ 
 
 wcic est<jpped from denying their .'•eals after pleas, one beinj,' that the liond was a several, and 
 tiic plaintilf had accepted the instrument from not a joint and .several bond, and seven picas 
 M. as security. ' ' ' • . . . 
 
 /'.;■ .M.Donal.l, C. .r., ami Ritchie, ■[., that 
 
 defendants were lialde as guarantors on the ^^ ,_, ^ v ......wt, ..„.. 
 
 i.-tnuneut, having signed it with the knowledge ; made no attempt to distmb it. K., alone of 
 
 .Sulisei|nently, plaintid' sued upon the liond, 
 <icditing in their particulars the smn K. had 
 promised to jjay. but had not paid up to ilate of 
 the tiial. K. pleaded to thi' writ a niimlKr of 
 
 III e(|uitablc grounds. The jury found for 
 
 jilainlitr in a less amount, however, tlian they 
 
 laimed, but they actiuiesced in the verdict, and 
 
 that it was to be used as security 
 Miiiiii-iiKililij nf Shilhiirui v. Mfir-i/irt// I f. nl. 
 
 On (i/iji'ft/ to fhf Sit/>remc Court of Camula, 
 //'/'I, Ifenry, J., hfnitanli', that as the re»- 
 pniidcuts had proved a prima facie case of a 
 liiiiid jiropcily execuleil on its face, and neither 
 tlic suliscribing witness nor the {irincipal obligor 
 was calle(l at the trial to corroborate the evi 
 
 the defendants, resisteil the venlict, contending 
 j that the bond was a several obligation, and that 
 7 U. i^t <!., 171. i the receipt given by the plaintitl to him at tiie 
 7(". L. 'I'., -'4«. time of the settlement between them being in 
 proof, should be considi^icd as payment to that 
 extent on his own account. 
 
 //('/(/, that K. having invoked its oijuitablc 
 jurisdiction, the Court had full power to deal 
 with the case, tliat the bond was a joint and 
 several iddigatioii, that if K. had actually paid 
 
 iis called ai me iriai lo coironorate tlie evi- ^ • " ' "•^>"">>.> j<.ini 
 
 ■lice of the appellant who had not negatived ""^ '^"""iiit mentiom'd in the recei))!, he might 
 ic <lu<' execuli<m of the bond, it being ,j„ite ' '"^^■•^' «''"""'l ^"•' '^'""l''i''"f- but that m)t having 
 ■ ■ with his evidence that it was duly '1""^-' '*«' t'"' verdict for jilaintilf must stand, 
 the onus of nroviiiL' want of exei.n. I ^''" '^""^' »/ ^'"'"- ''^''■"'''« v. Forniaii ,1 
 
 lie 
 ll 
 
 consistent 
 
 executed, the onus of proving want of execu- 
 tion was not thrown oft' the a2)pellant, and the 
 rosi«iudents were entitled to recover. 
 
 Mar^lialt v. Muiiicijia/ity of Shillmruc, 
 
 al., 
 J X. S. 1)., 141. 
 
 2a. Heir, liability of on bond of ancestor 
 
 —Bond not a charge on real estate, although 
 naming heir— An action was brought against 
 the heir of an obligor on a lioiid whereby he 
 liound iiimself and his heirs for the maintenance, 
 among others of the plaintitt'. 
 
 21. Liabilit} of surety to contribute— 
 
 14 S. C. R., 7.37 ; .Surety hehl not liable for c(mtributi(m where 
 7C. L. T., l.SO. i there was no liability shown on which money 
 should have been paid by the co-surety. 
 
 Carmy v. /'hakii, 4 R. & G., 126. 
 
 28. MIsrecital of Judgment in— Plaintiff 
 
 sued in the t'ounty Court on a bail-liond given 
 by the three defei)dants, who pleaded and proved 
 
 Ifdil, that the coinnum law principle under ; ^^^*' *^''<' «xecution had been returned before the 
 which the heir having assets from his ancestor i expiration of the sixty days within which it was 
 
 made returnable. The County Court Judge held 
 that this was a mere irregularity, not touching 
 the merits, and could not be taken advantage 
 of liy plea, and he gave judgment against the 
 three defendants. Defendants appealed, and in 
 the appeal bond recited the judgment as a judg- 
 ment against two of the defendants. 
 
 Held, that the appeal was irregular, and that 
 M, Joint and several obligation— Eqnit- a motion was properly made in this Court to set 
 3le defences— PlaintifTs cashier gave a bond I it aside, though the papers had been certified 
 
 could be made liable on such a bond was entii'cly 
 inapplicable to tlie position in which the statute 
 of distributions placed him in this Province. 
 That the bond, although naming the heir, was 
 not a charge on real estate, and that the action 
 could not be sustained. 
 
 M<-Ldla)i V. McLel/an, 1 R. & «., 80. 
 
.)i) 
 
 BOND. 
 
 2.-)6 
 
 tuiil tlio liniid iipiHoved l)y tliu ('i)unty Court ill .lo pica was pleailed, under which defunduiit 
 
 jiidj,,.. gavf ovi.liiK't' that tho St'orotary nf the Soiicty, 
 
 Watinii V. U'liDj, ."{ l-t. w'c (1., I.'H. ujxm dcfi'iidaiit asking for a icU'a.Mc of liis IkihiI, 
 
 replied tliat it would ho a g<)o<l deal of expenxu 
 
 20. Of public Ofllrers Crown no lien on and notliing wouM ever come again.st liini, and 
 
 real estate for '.ueh bond Tile SiutulcM ;{;ni. M, no application Mas thereafter inaile to jjini fnr 
 
 c. .Sit, and l.'l Kliz., c. 4, which gave the Ciown ^\^^^■^ nv lines, the uotici'.s lieing sent to tiie piir- 
 
 a lien upon the real estate of certain jiuiilic otli- 
 cers as a security for the fullihnent of tiieir 
 bonds, are not in force in tiiis I'rovinci'. 
 
 I'liimLi V. hiil:.<tiii 1 1 III., .lames, "JHT. 
 
 »0. Mortsitgc ForcclosHPe and sale 
 
 cliaser. 
 
 Ill III, that tlie Secretary hail no power tn 
 make the arrangement alleged, to whicii the 
 Miiectois hail not assented, and that tiie defeii- 
 daiit, heing a menilier of the .Society, was houinl 
 to know the limits of the Secretary's authority; 
 
 Purchase by mortgagee and sale to third that, altiiougii the rules of the Society restrictid 
 
 party Aetion on bond for balance due 
 Plaintiff held entitled to recover At a sale 
 of mortgaged jiroperty held pursuant to an 
 order of fiMcclosure and sale, plaintill', the nioTt- 
 
 them to the advancing of money upon real estate 
 security, there was nothing to pieveut tliciii 
 
 fi 1 taking the defendant's bond in adilitioii. 
 
 even if they could not lake the bond nf u 
 
 gagee, liecame tiie imrchaser for a sum less tiian sipanger. That the fact of a sale under fn eilo- 
 tlie amount of tlie iiioitgage. | sure did not prevent tiie Society from sii ag hu 
 
 riaintilf conveyed the property to a third : the ))ond, so long as tlu'y held the land. Tliat 
 party and subsei|ueiitly sued on tlii' bond given ; tl^. decree against the defendant could not in- 
 collaterally with the mortgage to recover the elude tiie costs of the fort^closure suit, to wliicli 
 l)alance due after crediting the lU't sum for ; la- was not a party, but that he was not entitlcil 
 
 wiiicii llie property was sold al tiie Siierill's 
 
 sale. 
 
 Ililil, McDonald. ('. .f. and Weatherbe, .1., 
 
 ihihitatiii , tlial plaintitl' was entitled to recover. 
 
 K< iiiiij V. ('Iiixholiii, 7 H. i*i "., 407 ; 
 
 S ('. L. T., li-2. 
 
 On n/i/iiiil /n >hi Siijinnii Cmir/ i<t' Cniiinln, 
 
 //(/(/, tliat tlie mortgagee was not ))roliil)iteil 
 
 from proceeding on the bond to recover the 
 
 re.-idlle of liis delit. 
 
 ChUhuIni V. Knnii/, I'i/h Fi liriinn/, ISS-'i, 
 
 (."as. Di.'. -Jits. 
 
 to credit for tlie ])ioceeds of tlie foreclosure sule, 
 
 as tliey did not amount to the costs in tiiat suit, 
 
 and that the trustee.s were the piojier plaiiitill's. 
 
 AInioii ii (il. V. n,i.<i'h, I!. H. D.. 'Ml. 
 
 33. On Capias Condition in Bond Dis- 
 charge of surety— A l)ailbond was taken ii|"iii 
 a capias issued out of the .Magistrate's Ciiiiit 
 conditioned for the apjtearance of the defenilaiit 
 in the suit or his authoii/ed agent. Tlie attm- 
 ney appeared witli a written authority as ■'the 
 aiillioij/cd agent" and the plainlitf olitaini'il 
 
 judgment upon which an execution was i-siiiil 
 
 31. Mortgagees rigllt of, on bond -Col' j and returned noil 111 iiiriiiiii^. h\ an attiim 
 laterally given, //i/'/, tliat a muitgagce « ho against the surety, 
 
 has foreclosed and sold and liought in the lanil at llilil, allirniiiig the decision of tlie Cmimy 
 .SherifTs sale and is in possession of the land j Court that the surety's obligation had been tlis- 
 can rank upon the estate of the mortgagor for , charged by the ajipearanco of the agent ami 
 tlie balance (hie on liond after deducting the that plaintilf could not recover against him. 
 proceeds of sale, and cannot be coin])elleil to Wriijht v. I'l-irr.t, .'} R. & C., Tili.'!. 
 
 give credit for the actual value of the land. 
 
 He E-siafv of Chandkr, 5 R. & G., 78. 34. On Issuing writ of certiorari -4th ii. 
 
 S., c. 75, ss. 25 & 26— Aetion on— Indorsing 
 
 32. Mortgage— Bond— Building society— ; name of relator— in an action on a n rlwmrl 
 
 Mortgagor sells equity of redemption— Fore- 
 closure— Action on bond — Parties— Defendant, 
 a member of the Nova .Scotia Kuilding .Society, 
 obtained an advance and gave his mortgage and 
 bond, after which ho sold his equity of redemp- 
 tion, and a suit was brought to foreclose the 
 mortgage without making him a party or giving 
 him notice. The land was bought in by the 
 Society for a sum less than the costs in the fore- 
 closure suit. An action was then brought 
 against the defendant on his bond. An cquit- 
 
 bond, under 4th R. S., c. 75, Schedide E., the 
 defendant obtained an order uisi for the indor- 
 sation on the writ of the name of a person to lie 
 liable for costs, under the practice established 
 by Queen, y. McKarchcr, 3 R, & C, 3;J7. Be- 
 fore the rule was made absolute, the plaintitl 
 iiulorsed the name of the Clerk of License, ami 
 gave the defendant notice. A rule was after- 
 wards obtained, making the rule nixi absolute, 
 and giving the defendant ten days to plea'l. 
 Plaintiff, after the rule was made absolute, 
 
SoT 
 
 BOND. 
 
 258 
 
 iii,l,.rsiMl the imiiie of the Clerk of Liuenso a Held, that tho quo^itioii was pr()])erly left to 
 
 Rccml time, hut tliil not give the (lefeu.l.ii.t the jury, ,111,1 that the venlict bIk.uM not l)e 
 
 liotiuf of tlie seooiul iiiiior.satioii, uiiil after tlie diMturlietl. 
 
 expiiati..n of ten days, marked a default for Tiio Healing and delivery of a Ixmd are jnit in 
 
 want of a plea. 
 
 issue l>y a i>lea that the defendant "did not 
 jr any suuli liond " as tliat de- 
 
 IlazM V. Dijns, •_' H. & C, 'M. 
 
 J •• l"^'" i-iini/ iinj iiuiuiniiiui, mil iioi 
 
 iri./, iliat the default had lieeii regularly make and deliver any sueli l.ond " as that de- 
 iiiiirkni. clared on. 
 
 ijii'f ,■) , as to tlie (iraetico established by (^itttn 1 
 v. MrKnri/i.r, .'l R, it V., .'J.'JT. I 
 
 V»"«v. C'ur/ir, 1 K. & (!., .'K)7. 
 
 37. Sureties on bond of ofllccr holding 
 
 „. .. , ^ , . annual office— Liability ceases at the end of 
 
 .}... Relator ordered to be IndOfNCd on the year-J. a. H. was ai.i.ointe,l Treasurer 
 writ m action ou bond at Huit of the Queen - for tlie Cnunty of (,>Meens on the l.-.th of Marcli 
 la a,, action on a bond to the l,>ueen under .■. m->, giving a l.ond in the .sum of .S4,0(J(), with 
 ,.. "I »th II. .S., an attorney was named on the sureties, for the performance of the duties of his 
 will, hut It was not shown at whose instance, or : otli™. He c.mtinued to hold the oHk.e until the 
 fur wlins. advantage the acti..n was brought. l,-,tl. March, 18tiS. Having failcl to account 
 ill.; (ni.it passed an order staying the action ^ f.,r and pay over certain moneys received by 
 umilplaiMtitls attorney shoul.l indor.se on the him as such treasurer after the first year for 
 win the name of the Clerk of License, or such , which he was appointed to the ollice, an action 
 (itlar person at whose instance the action was was brought on the boiul 
 
 I'Mniglit, to respond the judgment 
 
 J^i/<l, that the ollice of County Treasurer, 
 <M": V. Mrh-arrhn; :i K. & C., ;«7. under .3rd R. ,S., c. 4.-,, s. 1, being an annual 
 
 office, the bond made by J. A. H., and the other 
 defendants as his sureties, did not extend beyond 
 the first year he held that ollice, and as there 
 was nothing to shew that there was any <lcfal- 
 
 80. Secondary evidence of-SealIng and 
 
 delivery— Wliat sufficient to put in issue- 
 Finding of jury— Where the plaintitr, the widow 
 
 of J. H., suing on a bond for maintenance made "^'^t'"" ''"I'ing tliat year, there must be judgment 
 
 for the defendants. 
 
 til her lite husband ami herself, testitied that 
 slie JKiil the bond in ))osscssiou after her luis- 
 baiid's death, that she gave it to her own son to 
 he recorded, and had not .seen it since ; and the 
 smi testitied that he had sent it by tlie magis- 
 trate to get it recorded and had not since seen 
 
 The ANonuy-G'iiitml v. Ilimcoii et a/., 
 
 1 N. «. D., 485, 
 
 38. To secure a debt payable in instal- 
 
 .^„. ments— Whole to become due on default in 
 
 It, luid the document was traced to the office of one payment — Not divisible — Jurisdiction 
 the Uegistrar of Deeds, who testified tliat some County Court— Defendants entered into a bond 
 one siipiK.sed to be entitled to it had got it out j to the plaintitl" and his co-executor to secure a 
 of liis jjos^ession, and that he had searched in debt of .•?8I(), payable by instalments, the first 
 his otHoe in vain for it. A paper sworn by the ' of which, amounting to .slGl.40, was overdue ; 
 Kei,'istiar to be an accurate copy of the registry ' hut the condition of the bond referred to a 
 was admitted as secondary evidence. I mortgage given contemporaneously with it, 
 
 //'-/'/, that the evidence was properly received, hvhicli contained a covenant that on default 
 The bond contained the usual attestation clause ' iiwde in tlic payment of any instalment, the 
 asto .sigiiiiture and sealing, and defendant had pvholo sum unpaid should immediately become 
 iieknuwledgcd several times that he had executed I <lii« and ])ayable. Action was brought in the 
 
 iihond to J. H., but plaintiff's son said he did 
 not think the original, which he saw, was sealed. 
 The eojiy from the registry contained no indica- 
 tions of a seal, and the defendant, whose evidence 
 t>n some essential points was inconsistent with 
 tluit of phuntitr's witnesses and the proven facts 
 of the ease, denied that he had ever delivered a 
 sealed hon.l to J. H. The question as to the 
 scaling was left to the jury, who found " that 
 t'le document in evidence was identical in pur- 
 port with that signed by the c.3fendant, which 
 ne denied," and they found a verdict for 
 plaintiff. 
 
 9 
 
 f~f — — -— 
 
 County Court for the amount of the instalment. 
 Held, that the judgment of that Court, which 
 was for plaintiff, could not be sustained for M-ant 
 of jurisdiction, the debt being indivisible for 
 8810, and recoverable only in the Supreme 
 Court. 
 
 Bath V. Detmison et al., 3 R. & C., 303. 
 
 39. Variance -Judge's Minutes conclusive 
 
 as to what took place at trial— Non-suit— 
 Refusal of Judge to amend— Plaintiff sued on 
 a money bond. There was a variance between 
 the declaration and the proof, che declaratioa 
 
259 
 
 BOUNDARIES. 
 
 2C0 
 
 setting out the words of the condition upon per- 
 formance of which tlie bond Wiis to become void 
 insteiul of tlie obligatory part of tlie Ixjud, and 
 the plaintiff was non-suited witlj a rule to set 
 aside the non-suit. On the first day of term 
 plaintiff obtained a rule iiini for an amendment of 
 the declaration, and that a new trial be granted, 
 because tlie Judge on the trial had refused to 
 grant tlie amendment. At the argument, plain- 
 tiff moved to discharge this rule with leave to 
 move for another similar to it, but adding the 
 words " on reading the minutes." The affidavit 
 of plaintiff's counsel stated that the Jiulge had 
 refused leave to in.sert, as one of tlie grounds in 
 the rule, that the amendment had been refused. 
 This was contradicted. 
 
 Held, that the rule vini must be discharged, 
 as the Judge's minutes were conclusive as to 
 what took place at the trial, and the plaintiff 
 had his remedy under the statute for the alleged 
 refusal to grant a rule ; that the plaintiff was 
 properly non-suited on account of the variance, 
 and that the non-suit could not be set aside for 
 the alleged refusal of the Judge t(5 grant the 
 amendment, even assuming plaintiff's account of 
 the matter to be correct. 
 
 Halifax BankiiKj Compauy v. Worrall O al., 
 
 4 R. & G , 482. 
 
 BOODAKIES. 
 
 1. Admissions as to— Wlicn binding— The 
 
 admissions of a husband as to the boundaries of 
 land held by him in right of his wife, are not 
 binding upon his wife after his decease. 
 
 UesBarres, J., diastittimj. 
 
 Any admission of boundary to be binding 
 must be made with a full knowledge of the 
 facts, and this knowledge is a question for tiie 
 
 Dill V. Witkinn, James, 113. 
 
 2. Boundaries described in deed— Des- 
 cription of— A lot of land conveyed Ijy defen- , 
 dant to plaintiff by way of mortgage, was ' 
 described as bounded by lands of A. and B. 
 which had been previously conveyed to them, ' 
 being originally parts of the same lot. The 
 lines of the lot conveyed to plaintiff were des- : 
 cribed by measurements, but tiie termini were 
 stated irrespectively of the measurements thus, \ 
 " 2.50 feet or until it conies to property of P '> ', 
 The measurements were wrong, and resulted in 
 the frontage on the street being much less than i 
 that represented. | 
 
 I Held, that the measurements werq^nere mat- 
 j ter of description, and that tiiere was no breach 
 of the covenant of « /■'••/«. 
 
 j Almoii ct al. v. Woodill, R. & (J,, 1,3; 
 
 j G C. L. T., 1,37. 
 
 ^ 3. Conventional line — Where a conven- 
 tional line is established it concludes the parties 
 
 ■ to it. 
 
 lioM et al. V. McKeiizii', :i X. .S. 1),, 69. 
 
 ' 4. Conventional line -When the owners of 
 I adjoining lots of land agree to abide by a cw- 
 tain boundary between them, though tiuit Ijimii- 
 I dary is inconsistent with their docuiiieutary 
 title, their agreement will lund tlieiii and pre- 
 clude them from setting up any other lioumlary, 
 Woodherry v. G'ate'i, 2 Thorn., '2m, 
 
 a. Conventional line — Acquiescence for 
 
 number of years— Cannot be disturbed, al- 
 though shown not to be true line— Where the 
 owner of a lot sold a part, and in the dtuil to 
 the grantee, described the dividing line as luii- 
 iiing in a certain direction by compass, an<l the 
 course of the line was fiointed out on the land 
 agreed to and aetjuiesced in for a numljtr of 
 years, 
 
 Jleld, that sucli line could not be distuilieil, 
 though shewn not to be the same as tlie line 
 got by running accordnig to the direcliciiis :a 
 the deed. 
 
 McLean v. Jacobs, 1 Thom., (1st Kil), (i; 
 
 (2ndEa.),!t, 
 
 6. Conventional line-Assent given under 
 
 mistake as to facts -M. R. being :'.l")iit to 
 make a conveyance of land to V. R. . went on 
 the land in company with V. R. and ti.ved the 
 starting point from which the line was to run. 
 A deed was made accordingly. After the death 
 of M. R., plaintiff, his widow, wilii tlie tun- 
 sent of V. R., got a surveyor to run the line, 
 which was done from the starting jioint iwli- 
 cated by M. R,, lint, in consequence of an ermr 
 of the surveyor, on a course five <lcgiees ilitlerent 
 from that mentioned in the deed. \. K. wai 
 not present when the survey was nimle, Imt 
 substMiuently assented to the line iis run ni 
 ignorance of the fact that a mistake had k-cn 
 made. V. R. conveyed to defendant acoonling 
 to the description in his deed. 
 
 Held, that the assent given by V. K. to the 
 line as run by the surveyor was not sutiicicut to 
 establish a conventional line. 
 
 All the facts being before the Court, and it 
 appearing that the plaintiff could not eueceed if 
 the case were sent to a new trial, judgment was 
 
261 
 
 BOUNDARIES. 
 
 262 
 
 ordered to be entered for the defendant with 
 costs. 
 Milltr V. Ton/mill, 17 Q. H. I)., ()0;{ foUowud. 
 
 9. Conventional line— Evidence to estab- 
 lish—Answer of jury to question — Verdict — In 
 
 an action of tic'spass to land tlie defendant proved 
 
 Roach V. M'aj't;, 7 R. & (i., 330 ; \ the establi.shnient of a conventional line with the 
 7 C. L. T., 377. ' person fioni whom plaintiff claimed, giving the 
 /oc»v in (jncstion to defendant. Plaintiff and 
 defendant both prove<l sulweqnent acts, indi- 
 cating ownership, performed liy them rcspect- 
 
 7. Conventional line ~ Established under 
 
 mistake - I'laintifl' and clefandant were owners 
 
 respectively, of adjoining lots in the fifth and \ '^^-'^y- "" ^^": '"''"'■ '''" *'"-' 'l"^'«l"">- " if '^^ <■•' 
 
 sixtli ranges of the Addington or Hartshorne 
 Oniiit, a large tract of land, comprising '23, (KK) 
 iKies, which, for convenience <jf sale, was 
 divided into ranges and suli-divided into lots. 
 Both claimed directly or indirectly under Harts. 
 liornc. I'laiiititf olitained his deed in IS4(» from 
 Piisliec, to wiiom Hartshorne had conveyed in 
 1S.S7. Defendants, after lieing in possession for 
 ten yoais, under an agreement to purchase, 
 derived title ilircctly from Haitshorne in 18,")4. 
 Tlie descriptions in tlie deeds were vague, merely 
 referring to the lots as containing 1(K) acres, to 
 tlieir nuinliers, and to the nund)ers of the ranges 
 in wliicli tiiey were situated. Plaintiff em- 
 pkiycd a surveyor to run liis lines in 1841, two 
 years before defendant went on, and the latter, 
 
 when proprietor of the land of plaintifl', had met 
 C. <J. and the defendant on tlie land in (|Ucstion 
 and agreed with them, as trustees of the A. Church 
 property, that the western sideof the stone wall 
 sliould be tile Western line of the land known as 
 
 j the A. Church property," the jury returned this 
 
 j answer : " he (.S. (!.) said so,'' and found a ver- 
 dict for plaintiff'. ,S. (i. did say so in his testi- 
 mony at the trial and was not contradicteil. 
 
 I //'/(/, that the verdict must be .set aside. 
 
 j Onrhatf v. iloosihy, 2 R. & C, 235. 
 
 I 10. Conventional line — How established 
 
 — Where parties iifdding adjoining lands meet 
 upon the land and fix a Ijoundary between their 
 lots by ver)>al agreement, such agreement will 
 be binding upon them, notwithstanding the 
 
 Is 
 
 for some years, both by words and acts, recog- I , i " i ' r ,i '', 
 
 , , ,. , , ' » boundarv agreed upon may varv from the dec 
 
 iiizeil tiie Ime between them, as claimed by , ', i ■ i .i !• , ' , i 
 
 ,..„,., ,. , •'or plans by which the parties ho d. 
 
 plciintill', as being the true line, but it appeared 
 tliat this line was not in fact the true one. 
 //'/'/, that defendant having acted under a 
 
 y>«c,''.<o» V. Klii-inntii, James, 1 & (i9. 
 
 11. Conventional line -How far binding - 
 
 niisaiiiachcnsion of tlie facts, and being unac- , _/riie awar.l of arbitrators in pursuance of a 
 fiuaintcd at the time with the real boundary of ' pa,.„l sidmiission setting and fixing a boundary 
 iiis lot, there was nothing in tlie acts or .leclara- ii„o, is conclusive up.m tlie par;ies consenting 
 tionssomade to establisli a conventional line, to and acting upim tlic avNard. 
 iudqicMdcnl of right. ; j,, i^r, the two McKenzie brothers received, 
 
 /'((• l)odd,J. — The principle in ]\'oo<l/ii >•>•;/ \\ under a deed from their father, a certain lot of 
 (?«/'.<, and DarliOH v. Kinsman, should not be '' land which they continued to occupy togetlier 
 e.xteiidcd beyond those cases. until 1S.V2, when it was agreed between them 
 
 McDonald v. McDonald tt al., I N. .S. 1)., 42. ; that there should be a partition, but no written 
 
 submission or bond was entered into. Arbitra- 
 ; tors were accordingly ajijioindd, liefore whom 
 
 8. Conventional line — Estoppel — There ; the brotliers and theii' witncs.ses appeared. 'J'lie 
 king some nncertaii.ty as to the line dividing tlie { lot was tlivide.l and each of the brotliers entered 
 lands of two adjoining owners, they mutually \ into possession in .severalty of the jiortion awar- 
 agrccd i„ liave a survey, and for that purpose, i de.l to him. Fifteen years aftei', one of the 
 each appointed a surveyor to represent him. | brothers sold his portion to the defendant and 
 These surveyors, atten.led by the parties and | then comliined witli his brother to deny the 
 others, met on the sjiot, and liaving read the | separate holding, and thus render void his own 
 deeds, fixed, by mutual consent of the parties, ' deed. The award was not produced at the 
 aeertaiu line as the boundary between the two trial, but secondary evidence of its contents was 
 
 pnipertics. 
 
 fMl, on the principle laid down in ]Vood- 
 Ixrry v. Gafus, 2 Thomson, 2,^0, and Davison v. 
 Kinmuii, .Tair.es, 1, that an estoppel was 
 thereby created, which prevented the parties, 
 or those claiming under them, from setting up 
 any other boundary. 
 
 Reid v. Smith, I N. S. D., 262. 
 
 given. It did not direct any conveyance to be 
 made, nor was any executed by tlie McKenzies 
 to one another. On these grounds plaintiff 
 claimed that it was of no ett'ect. 
 
 Hi Id, Wilkins, ,J., dismnliiii/, tliat the Mc- 
 Kenzies were bound by the submission which 
 they liJid thus recognized and acted upon, and 
 that the defendant, having sufficiently estab- 
 
263 
 
 BRITISH NORTH AMERICA ACT. 
 
 264 
 
 lishcd !i separate holding, tlie venlict for plaintiff i 
 should he set aside. 
 
 Woodlii rri/ v. d'nli ■•', '2 Thonisoii, "J.V), and 
 Dari-toii V. Kiii'<ninii, .lames, I, apju'oved and 
 
 followed. 
 
 M<-K<,r.!' V. lii-odi,, 1 N. S. 1)., '2^V 
 
 I 
 
 12. Fixed by tenunts of moieties.— Ten- 
 ants of moieties of a lot made an agreement as I 
 to their lioundaries. 'I'liey were siihsecjuently 
 turned out of possession by the owner and took 
 deeds from him. 
 
 //(/'/. that tlie agreement eould not afTect 
 their riglits after they heeame owneis. 
 
 /'/•((«*• V. Kirk; -2 Thom., -290. 
 
 17. Hater lot -line on seashore - The 
 
 grantee of a water lot, hounded on the shore, is 
 entitled to take up to higii water mark, ami tiiat 
 line of his grant ehanges with the gnuhial 
 eneroaelnneiit or retirement of the sea. 
 
 /v'voM V. Mai/hirry, 1 Thom., (Lst Ivl.), 144; 
 
 (•2ndKd.), 1S6. 
 
 18. Uhere a party conveys a portion of 
 
 ills land to another witliout deseriliing it liy 
 
 metes and liounds, they l)eeome teiiiiiUs in 
 
 conunon. 
 
 ^/-•.V/r7 V. MrXi'/. roehraii, :«. 
 
 BOTTOMRY - 
 .S'< SIllPPINti. 
 
 BREACH OF PROMISE OF MARRIAGE 
 Su IIISUAND A>D WIFE. 
 
 13. Natural boundaries - Courses, dis- 
 tances, &c. — Order in which they govern — If 
 courses and distances are given to reacii an 
 object, and they will not reach that object, the 
 rule is to go to the object as the most certain, 
 and to alter tlie courses or distances accordingly. 
 
 In an action of ejectment, defendant relied 
 upon a certa'n beech as being a corner boundary 
 of his lot, but neither the comer nor distance 
 mentioned in his grant would take him to it, j 
 
 witluait the alteration of one or other. It being ' 
 
 clearly ]H'oved that the beech had always been ; 
 
 considered thecornerboundiiryofdefi'ndant's lot, BRITISH \ORTH AMERICA iCT. 
 
 //'/(/, tiiat defendijut's line should be extended 
 
 beyond the length mentioned in his grant, until 1. Bankruptcy and insolvency -Winding- 
 
 it struck the beech. up Act- Acts 1879, c. 32--I!y an Act of the 
 
 MrPhirson it nl. v. Cnimroii, 1 N. .S. 1)., 208. Legislature of Nova Scotia, i)rovision was iniule 
 
 for the winding-up of comi)anies in gciuial, 
 
 14. Natural boundaries In grant not as- ^^'hm-c a resolution to that etiect was passd i.y 
 
 certainable -What governs Where the posi- the company, or where the Court so ordma at 
 
 tion of the natural boundaries described in a the instance of a contributor, on its l>ciiii; niaJe 
 
 grant cannot l)e ascertained, and there is no t<> aiyjiear that such order was just and niiiit- 
 
 proof of the original survey, the limits of the nl'lf- The Act could be enforced although no 
 
 grant ciinnot be exten.led by implicationbeycmd debts were due by the company, l)Ut cmihl not 
 
 the courses ami distances mentioned in it. ''^' i"illcd into operation by a creilitor. 
 
 TiriiiiiKjV' 'SI, nils, 1 Old., .31)0. ^f''<'' tl"i'' tl'« Act did not j.artakc of the 
 
 character of an in.solvent law, and was within 
 
 15. Natural boundaries, lines and corners the legislative atithority of a Provincial Legis- 
 established, first reg.arded — Courses, distances, lature. 
 
 quantity, etc. — In tixing tlie boundaries of land In re The Wallace-JIuesti/i Orey S/oiic Co., 
 the highest regard is to be had to luitural K. K. P., 401; 
 
 lioundaries, lines actually nni and corners .S ("art., TA. 
 
 actually marked in preference to statements of 
 
 course, distance, or iiuantity of land contained 2. Bankruptcy and InS0lvency-3» VIC.f. 
 
 in the descriptive part of the conveyances. I 104, N. S— I'laintiil's had .security on the uiiilei- 
 
 FrcDierv. Cameron, James, 189. taking of the defendant company, futuic calls 
 
 on shares and all tolls and money arising from 
 
 16. Proof Of identity of lot in ejectment : the undertaking, for .f200,000 as a first lien. 
 — I'l oof that witness knows the land in dispute, Messrs. Roberts, Lubbuck & Co., an English 
 that defendant lives on it, with proof of two of firm, had a lien on tlie rolling stock for i''Jri,UOO, 
 the boundaries, held, sutHcient proof, in eject- and there were alwut £70.000 due to unsecured 
 
 mcut, of the identity of the lot claimed. 
 
 creditors. Defendants, under c. 104 of the Acts 
 
 McXair v. Muuro, James, 340. , of 1874 of the Legislature of Nova Scotin, en- 
 
265 
 
 BRITISH NORTH AMERICA ACT. 
 
 2G6 
 
 titled. "An Act to facilitate arrangements Incorpnrntion Act of 1881, cliap. 1, sec. 14, a 
 
 U'tween Railway Companies and their credi- County Court .liiilgc wlio is <lis(|ualitictl fr<in» 
 
 tors," [Sir. Acts 1S7"), page 1), tiled a scheme, trying a ])elition in a contested munici])al elec- 
 
 wlieri'liy preferential stock to tiie extent of j tion may call in another County Court Judge to 
 
 iT.'i.iMK) was to he created, to he a first charge ilo so. The jurisdiction of County Court Judges 
 
 (111 liiitli tlic undertaking, calls, tolls, &e. and does not depend upon their connnissions, which 
 
 the n)lling-stock, and this, or the money are only descriptive of the tril)muil over wliich 
 
 ciiiiiiiii; from it, was to he applieil to tiie such .ludges are ap])ointed to ])reside, hut ujion 
 
 piiyiiiciit in full of Messrs. Koherts, Luhhuck iS: enactments of the Provincial Legislature, wliich 
 
 Co., and certain unsecured debts specitied ; may deline, enlarge and extend the district. 
 
 stock III the extent of t'.'{r)(),(XK> was then to be within which the Judges sit as it sees lit. 
 
 ercaicil, to he a subseiiuent charge on the under- I 
 tiikiiif;, Ac. and rolling-stock, and was to be ' 
 issued at par to the existing debenture holders ; 
 
 Croi-e V. McCunbj, 6 R, &G., 301. 
 
 5. Debtor, power to provide for discharge 
 
 in lieu of the .lebentures they then held, which ^f_^^ y^^ ^ g^ jj S.-The Act of the I'rovin- 
 Mire to l)c delivered up to be cancelled. Plain- 
 
 cial Legislature, 1878, c. 8, jiroviding for the 
 relief of debtors imprisoned on process out of 
 County Cfpurts is not ultm riri'!'. 
 
 Juhiiston V. Poijiit-: it a/., '2 R. & (i., 193 ; 
 
 •J Cart., 416. 
 
 0. Doni. Iniand Revenue Act — Vice* 
 
 tills (ilitaiucd an order for the appointment of a 
 receiver, which defendants obtained a rule »/.-■■( 
 to rescind. The Court, considering that the act 
 was u/irn (//•»,<, as it dealt with the subject of 
 iiisiilvciKy, and fui'ther, that the scheme tiled 
 Mils unreasonable, as its object was to secure 
 
 otlar creditors at the expense of .lebentme Admirl^ CourT"ProhibiVioVrto-Tl.e IcgiZ 
 
 holikis having a tirst lien, discharged the rule 
 
 «(>( to rescind l)ut, in view of the possible rjveisal 
 
 (iftlie judgnient on ajipeal. otlered to modify the 
 
 nidii- ii]ip(iiiitiug the leceiver, by directing him 
 
 to pay the amount to be received to the Heceiver 
 
 (leinial, to abide the further order of the Court. 
 
 ilm-iliich V. ]Viud'<or i(' Aiiiia/ifi/l.-< Rdi/n-in/ 
 
 Coni/niii/, K. K. I)., 1.S7 ; 
 .S Cart., :jti8. 
 
 3. Banliriiptry and Insolvcnoj— Property 
 
 and Civil Rights— 37 Vic. c. 104, N. S - Under 
 
 tion of the Dominion rarlianient (31 Vic, e. 8, 
 s. 1.")))), giving the \'ice-Adniiialty Court juris- 
 <liction in cases for the collection of pciuilties 
 for illegal distilling, is ii/tin ri'/vs, and the 
 Vice-Admiralty Court, as an infei'ior Court, 
 may be restrained by the Supreme Court by writ 
 of prohibition. 
 
 Atty.-(li n'l of Cauada v. Flint <fal., 
 
 3R. & (;.,4.-).3. 
 
 On ii/>/)i(i/ /o /Ik Sii/inm' Caiirf of Caiiaila, 
 
 Hilil, that so much of sit. l.")!!, of 31 Vic, c. 
 the |ii(ivisiniis of an Act rif the Lcgi^dature of 8 (Doininioii Inland Itcveiuic Act, 18(i7), as 
 Xova Scotia "to facilitate arrangements be- gives the Court of Vice-Admiralty jurisdiction 
 twi'cii Itailway Comjianies and their creditors," in cases for the collection of penalties for illegal 
 the Wiiidsiir and Annapolis Hallway Company ilistilliug is intra rinx. The judgment of the 
 proposed an arrangement whereby the so-called Supreme Court of Xova Scotia reversed. 
 1> debenture stock of the Company then bearing Att)j.-(!i nl. ot Canada v. FUnt <t a/., 
 interest at the rate of 6 per cent, was " abro- ' Itlth January, JSS^, Cas. Digest, S'24. 
 
 gated and dcterinincd,'' and in lieu thereof the 
 
 hohlers ,.f said stock were to receive allotments j, JnsOiVCnCy - CIvli rights - 32-33 VlC, 
 of new stocks thereby created, bearing lower p. ig^ g. 59 Dom— Section .■)n of the Dominion 
 rates of hiterest, and otherwise ditTering from Insolvent Act of 18t)!) nrovided that no lien 
 
 tlie stock for which they were substituted. 
 
 or privilege upon the property of an insolvent 
 
 ff'M, Weatiierhe, J., dissfntlii;/, that so much should be created for a judgnient debt by the 
 of the Act as was necessary to the confirnia- [ ig^ue or .lelivery to the sheriff of an execution, 
 tion of the projiosed scheme, was within the ,„. i,y levying upon or seizing thereunder the 
 legislative .luthority of the Legislature of Xova \,,fy^^^t8 ,„, ^,^^^^^c „f n,, i„s„lvent, if before the 
 
 Scotiii. 
 
 He Windior d- Aniiapo/i.i /{aihcay, 
 
 4 R. &(i.,31'2; 3 Cart .387. 
 
 4. Constitution of Courts — Act enabling 
 
 in certain cases a Judge of County Court to 
 call in another Judge — Under the County 
 
 payment over to the plaint itl' of the moneys 
 levied the estate of the debtor had been assigned 
 or placed in liijuidation under that Act. 
 
 Ill-Id, to be within the competence of the 
 Dominion Parliament. 
 
 Kinney v, Dudman, 2 R. & C, IP ; 
 2 Cart., 412. 
 
267 
 
 BRITISH NORTH AMERICA ACT. 
 
 2G8 
 
 8. IntoxicatInK ll(|Uf>rfl -Power to regu- 
 late sale of -Trade and commerce -Mode of 
 testing validity of clause imposing conditions 
 for obtaining licenses — KiiiutiiH'iits (if the 
 Legislature of Xova Scotia prohibit ing the 
 retail of intoxicating; lii|U<)fs by nilici'iisoil ven- 
 dors, ami prcsci'ibiii},' pciialliiis for such tiuli- 
 censi'd vcniling, arc within the ])o\vcr of that 
 Legislature by section }f_' of the li. N. A. Act, 
 sub-section S) ; and it would be no clefence to an 
 aotiou for such penalty to show that the legis- 
 lation under which the sessions were autiioiized 
 to refuse to grant licenses was ultra rinx. The 
 pro])ei- course in such case would be a uiandauius 
 to the sessions to coui])el the granting of the 
 license. The legislation contained in 4th K. S., 
 c. "•'>, sections .S'J and .S.S, is not tilira rins, al- 
 though it may to a certain limited extent ati'ect 
 trade and coniuierce. 
 
 Kii/i V. MrLi iiiKlil, '1 K. i^ ('., ."> ; 
 '2 Cart., 4tK). 
 
 9. Procedure The Canada Temperance 
 
 Act gave an ajjpcal to the County Court, but 
 provided for none from County Court to 
 Supreme Court The County Court Act (N.S.) 
 gave a general appeal to the Supreme Court 
 from the County Court -//-/</, that liie latter 
 Act could not be invoked to sn]i])ort the right 
 of appeal from the County Court in a ca.-ie under 
 the Caiuida Temperance Act. 
 
 Mrl)(,„a'<l V. .1/.r»,\7i, .-) R. & C, 1. 
 (JiKin V. ll'o//i, 7 K. & <i., '-'4 ; 
 
 7C. L. T., :.:?. 
 
 10. Provincial legislature Power to 
 
 authorize the imposition of license fees on 
 insurance companies -Construction of British 
 North America Act, s. !t2, sub. sec. 9— Tiie Pro- 
 vincial Acts of I8S.S, c. "JS, sec. '_'.'{, jirovided 
 that in the case of insurance com]ianies doing 
 business in the City of Halifax, the proi)erty of 
 the companies within the city should be liable 
 to assessment in the same way as t!u' projierty 
 of other rate ])ayeis, and also, that every such 
 company should, in addition thereto, ])ay an 
 annual license fee, and that where any com|)any 
 was engaged in more tlian one branch of busi- 
 ness, it shoulil pay a license fee for each branch 
 of its business. 
 
 //(/(/, that the right to empower the impo- 
 sition of such license fees was witliin the powers 
 of the Provincial Legislature, under .section })2, 
 sub-section 9 of the British North America 
 Act. 
 
 The City of Halifax v. The Wiinli'.rn Anxumnre. 
 Comjiaiiy, 6 R. & G., 387. 
 
 11. ()neen's Counsel -Power to appoint- 
 
 37 Vic, c. 20 and 21, N. S., n/'m ric.v— Letters 
 patent of precedence, not retrospective in their 
 etl'ect- Great Seal of th' Province of Nova 
 Scotia— 40 Vic, c. 3, D.— Appeal— Jurisdiction 
 --My .S7 \'ic., c. '20, \. S. (1874), the Lieuteiiiint- 
 (iovei'lir)r of the I'rovince of Nova Scotia was 
 authorized to a])])oint jirovincial oHicers nailer 
 the name of Her Majesty's Counsel, learned in 
 the law, for the Proviii"'e. By 'M Vic, c. 'Jl, 
 (bS74), the Lieutenant (iovernor was autliorizwl 
 to grant to any nuMidier of the bar a ])atent uf 
 preceileiice 'u the Courts of the I'rovince of 
 Xova Scotia. 
 
 H., tlie respondent, was appointed by the 
 (iovernor-Cenei'al on the ■J7th Decendter, I87'J, 
 under the (Jreat Seal of Canada, a (Jucon's 
 Counsel, and by the uniform juactice of tile 
 Com't he had j>recedence over all mendicr.s of 
 the bar not holding j)ateuts pi-ior to his iiwn. 
 By letters patent, dated '-'(ith of May, 1876, 
 under thetiieat Seal of tiie Pi'ovince, and sif,'iieil 
 by the Lieutcnant-(!ovei-noi' and Provincial ."sec- 
 retary, several mendiiMsof the bar wei'c a])i)oiiit- 
 ed t,lueen's Comisel for Xova .Scotia, and prcccil- 
 ence was granted to them, a.s well as to (itiier 
 (^hieen's Counsel a))pointed by tlie Covcrnor- 
 (icneral after the 1st of .Inly, 18(17. A list of 
 (j)ueen"s Coun.sel to whom precedence had been 
 tiuis given liy the r^ieutenant-Ciovcrnnr, was 
 ))ublished in the lioiial (liv.illi of the l.'7th May, 
 187t), and till? name of K., the resiiondcnt, was 
 induch'd in the list, but it gave precedence ami 
 preaudience before him to several jjersniis, iu- 
 cluiling appellants, who did not enjoy it before. 
 
 Upon aHidavits disclosing the above and other 
 facts, and on iiroducing the (original conuiiis.sicm 
 and letters patent, B., on the .'ird .January, 
 1877, obtained a lule /(/</ to grant him rank and 
 ])receilence over all (Queen's Coun.sel ajipointed 
 in and for the Province of Xova Scotia since the 
 ■Jtith Decemlier, 187-, and to set aside, sn far as 
 they atl'ecteil H's i)rece(leiiee, the letters ])atenl 
 dated the •2(itli May, 1870. This rule was niatlc 
 absolute by the .Suprenu' Court of Xo\a .Scotia 
 on the'iOth .March, 1877, and the decision of tiiat 
 Court was in substance as follows:—]. That 
 the letters patent of precedence, issued by tiie 
 Lientenant-(!overnor of Xova .Scotia, were not 
 i.ssued under the (ireat Seal of the Province of 
 Xova Scotia ; '1. That .'{7 \'ic, c '20 and 21, of 
 the Acts of Xova .Scotia, were not ultra riri^; 
 3. That sec '2, e. 21, of .'{7 Vic, was not retro- 
 spective in its effects, and that the letters (latent 
 of the 2f)th May, 1870, issued under that Act 
 could not ati'ect the precedence of tha resjiondent. 
 
 On the argument in appeal before the Siipreiiic 
 Court of Canada the ijuestion of the validity of 
 the great seal of the I'rovince of Nova Scotia was 
 
269 
 
 BRITISH NORTH AM?:RICA ACT. 
 
 270 
 
 declared to have liceii sotUoil liy legislation. 40 
 Vic., c. 3, 1). nn<l 40 Vio., c. 2, \. S. A jtie- 
 liniiiwrv '»l'jci-'tion wiis niisoil to the jurisiliotion 
 of the Coui't to lieiir the appeul. 
 
 ///'/. I That till' j-lcli;iiieiit of t lie Court l)i'lc)\v 
 was iiiu' fiiim which an a))i)i'al would lie to the 
 SupiciiR' Court of Caiiaila. i-'ouniier, .)., r/i.i- 
 tfiiliii'j. 
 
 '2. A;' Stroiii;. I'ourniei' and 'raschereaii, J.J. 
 — Tiiat 0. 21, ',i~ Vic, X. S., has not a retrosj)ec- 
 tive fH'cct, and that the letters jiatent issued 
 under tlie authority of that Act eould not atl'ect 
 the lireci'ilcnce of the (.hieen's Counsel a]ipoiiited 
 hy tlio < rown. 
 
 •S. /'•/' Henry, 'rasi-herean and (iwynne, .1.1. 
 — That tlie l!iiti>h Xorth America .\it has not 
 invtstecl the I,i',L;islatur>'s of the Provinces with 
 any imilrnl over the a|)|)ointnien; of (,>ueen"s 
 t'liiuiM'l, and a.s }Ier Majesty forms no part of 
 tlie I'riivincial Legislatui'es as she does of the 
 DnMiiuinii I'ailiament, no .Act of any such Local 
 Lcu'islatiMc can in any manner impail' or atl'ect 
 litT |)reni;.'ative riiiiit to ap])oiiit (,Mieen's Counsel 
 in Canada direclly. or tlirouj;h her representa- 
 live tlie (iovernoi'-Ccnei'al. or vest such prero- 
 .'ative right in the Lietitenant( io\ernois of the 
 IVovinecs ; and that 'M Vic, c 20 and 21 X. ,S. 
 M- iillm /•/»•'« ;inil voiil, 
 
 4. !'• I- StroU".' and Fomnier, JJ. — That a.s 
 this Coni't otiLtht never, except in cases when 
 sui.h aiijialication is indispensalde to tiie deci- 
 siiin iif a cause, to ])rononnce upon the coustilu- 
 lidiial pciwer of a Legislature to pass a statute, 
 there was no nece.ssity in this case to express an 
 "piniiiii njion the validity of the acts in ipies- 
 tinn. 
 
 (Ill n I'm; ill ii<; o/ llilrhii . 2 R. cV ('., 4.">0|. 
 
 L'liiiir V. It'll rhii , '\ .S. C. K., .■)7."> : 
 
 1 Cart., 4,S,S. 
 
 \'l TiiXiUioii of Kanks Tax on noiiiinlon 
 
 notes Authority of Local Lesislature to im- 
 pose- The Local Legislature ha.s authoiity to 
 iiiuct a law imposing a tax on the Dominion 
 notes iiehl hy a hank a.s ])ortion of its ea.sh 
 reserve, under the Dominion Act relating to 
 "Hanks and I'.anking," CM Vic.c ."), s. 14), and 
 under the hydaws of the Town of Wiud.sor 
 sueh property was h.dd to be jiropeily included 
 hy tlie assessors in their valuation. 
 
 Tiiini of ]Viii(/xoi- V. Till' Commi rvinl 
 
 Jlaiik- of W'imlior, ;j H. & (i., 420 ; 
 3 Cart., T,-,. 
 
 13. Windsor Branch Dispute as to Dc- 
 
 murrer -Legislative authority -I'laintiHs' hill 
 »«oiit the Act of the Legi.slaturo of Xova Scotia 
 Ci*), c. 1,3), proviilmg for the eon.strui.tion of 
 
 the Winilsor ancl .Annapolis Railway ; the agree- 
 ment of November 22, lH(i(i, between the Com- 
 mis.sioner of Railways for Xovii .Seotia, and 
 Messrs. I'unehard, liarry & Clark, for its con- 
 struction, containing a stipulation that jirior to 
 the ojiening of the road, a trattic arrangement 
 should be made between the parties for the 
 mutiuil use by the Province an<l the eomjmny 
 f)f tlu'ir res|)e-:tive lines of railway from Hali- 
 fax to Windsor, and from Windsor to Annapo- 
 o!is ; tile Act of the Provincial Legislature 
 incorporating the com])any (18ti7 c. 'M\), of 
 «hicii the .\ct tirst mentioned and the agree- 
 ment in pursuance thereof were made a part 
 and the agreement of the (iovernment of Canada 
 (succes.sor to that of Xova Scotia in relation to 
 the line from Halifax to Windsor), with the 
 plaintilFs made Se))tember 22nd, 1H71, pi'ovid- 
 iiig that the company should, with exceptions 
 not touching tiie matter in hand, have the ex- 
 clusive use of the Windsor Branch with station 
 accommodation, etc. and the use, as far aa 
 rei|Uired, of tiie Trunk Line from Windsor 
 .lunction to Halifax, the com))any to pay over to 
 the (iovernment monthly one-third of the gross 
 earnings of the government lines, the agreement 
 to continue twenty-one years, then renewable, 
 but to terminate in the event of the coni])any 
 failing to ojierate the railways between Halifax 
 anil Annapolis. Plaintitls alleged that, having 
 certain e(niitable claims again.st the (iovernment 
 of Canada, tiiev allowed their ])aynicnt.s due 
 under the agreement of Septendier, 1871, to fall 
 in ariear. Imt paid them off in Xovember, 1872, 
 after wliii h, undei- similar circumstances they 
 ag.iin allowed them to fall in arreai', in conse- 
 i|Uence of which the (iovernment threatened to 
 resume |)ossession of the road, unless payment 
 \Nas made on or before October 1st, 1,S7.'J, which 
 peri. Ill was afterwards extendecl to Xovember 
 1st. 187.S: that on the 22nd October, 187.S, a 
 Minute of the Privy Council of Canada was 
 p.issed. of whicji no notice, ollicial or otherwise, 
 was given to the plaintitls, by or on behalf of 
 the (iovernn-ent, reciting that the company owed 
 the (iovernment .*:{(>,0(Ht, and had failed to 
 operate the Windsor Hiancli, and reeomniending 
 that the (iovernment should immediately jiro- 
 ceed to operate the road lietween Halifax and 
 Wind.sor : that afterwards, on the 20th .lune, 
 IS7.">, an agreement was entered into between 
 Her Majesty th? (^>ueen, represented by the 
 the Mini.ster of Public Works, and the plaintiff 
 company, whereby the company agreed to 
 ehange the guage of their railway and release all 
 claims against the ( iovernment to .Inly 1st, 187.'), 
 and in consideration thereof, the debts alleged 
 to he due to the (iovernment by the company up 
 to January Ist, 187">, were extinguished, and it 
 
271 BRITISH NORTH AMERICA ACT. 272 
 
 was (li'diircd that tlie iigicciiii'iit iiikUt wliiili lu'loiigs exi'liisively to tl'c Logisliitiiri> nf Xi,v,i 
 tlie (.■oiupiiiiy lield iiiul woikod the Branch Line Scotia, muU'r the ICJnd sec. of tlie II. X, A. Ad, 
 ciintinucd in fnll force and ctl'cct, t'xccjit as thus suli-sci\ 10, that road licing a local woik iinil 
 nioditicd. IMaintitl'ii alleged that tiiey had con- not L'oniing w illiin any of the classics cxct'iitic! 
 tinned in possession of sai<l Windsor liraneh i by the section referred to, and therefore tliu Ait 
 until August, IH77, when the superintendent of the Dominion Parliament, 1.S74, cap. ID, « 
 of ( iovcrnment railways took forciMe posses- »///•« (•/(•(.<, (.lames, J., r//«(»^';/;/ n.s to this 
 sion, and prevented them from using the liranch. i)oint). 
 
 The road was aftcrwanls transferred hy the Do- Ritcliie, H. J., adhered to the views ciiihodieil 
 minion ( Joverinnent to the defendants on the i in the judgment appealed from, wliicli, .«,i. 
 •J4tli Scptendier, I.S7", sm h transfer lieing lpase<l 11. K. I)., '2S~. 
 
 on the authority of the Dominion Act of I.S74, Wiiiil-^or il' AiiiKi/iii/i" Hal/irui/ CoiiipHiii/ \\ 
 c. 1(). Defendants demurred to this writ. Wi <tirn Coniiliii Itaihray Couiiiany, 
 
 Hi Id, that hy the agreement of Septcndier, i .'HI. i'c ('.. .')7t'i. 
 
 1S71, the Wimlsor ISiancii was in fact leased to 
 
 theplaintiti'sfortwentv-oneyears, that the only !*• B* >'. A. Act, 1S67, S. 108 rowcf (if 
 event upon wiiich the ( iovernment was author- Dominion Legislature-Windsor Branch ;)„ 
 ized to re-enter was a failure to operate the road ''"' l'<''«iiiig of this cause <m the cvidciia: m 
 between Halifax and Aniiajxplis ; that the .state- objection was taken on behalf of tiic Aunnay 
 ment in the .Minute .if Council that plaintill's < iencral of Canada that the agreemeiu of .Scptcm. 
 ha.l failed to operate the road could be contro- '"■'■- '^"'- l>'<>vi.ling tiiat tiie company sl„ml.l, 
 verted in this suit, and liiat without making the "'"' «'tain exceptions, have the exclusive use 
 Crown or the ( iovernment, represented by the "f Hie Windsor liranch, with station accmm,,. 
 Attorney-Ceneral of Cana.la, a party to the i '•'''^''">' ''^^••' "'"' l''^' "*'^'' '"* *"'"' "'* n''l>'iii'l. "' 
 suit, and having been denied by tlie plaintitis, the Tnink line from Windsor .Tnncti.in to 
 
 cuu 
 
 must be taken for the purpo.se of the argument Halifax r-' >"/"•'(, i:!j, was not binding cm tl 
 on the demurrer to be untrue; that. i,„U.pLn- , '^'""'"'""' ^"vcrnnicnt, because the radrna.lfi 
 dently of the Act of I ,S7-J. the .mly interest that ft''l'f'''< '" Windsor was a iirovinci d piil.lw 
 c.mhl be transferred to the defemlants by the ^^■'"•'^' •""' -'-^ ■">"^'' l'^'-^''! to tlic Dimiiiiimi 
 (iovernment was the ( Iovernment 's reversionary <i<'vcrnmcnt inidcr liie 1!. \. A. .\rt. nut us 
 interest in tiie road, subject to the plaintiliV ordinary (iovernment property, but subject to 
 lease : that the Ad of 1S74 did not directly and '^ ""^t which the ( iovernment was bound stiidly 
 in term.s, divest the plaintitls of their rights, ami '" fidlil and which reiiuired that it shmild lie 
 must be held as intended simply to .sanction the "'"ked for the pnblie beneHt in accnluice 
 transf-r to the defendants of sucn interest as the ^^''1' '''i' t-'rms of the Act un.lcr which it was 
 (iovernment itself had in the road ; that the built and subject to tlic engagements whi.l, InuI 
 plaintilfs had no adequate remedy at law, by l>ecn entered into l,y the Provincial (i.Aciiiimnt 
 .«.•/,■. yrovVix or i)ctiti(m of right, a.s tiiey did not '""I r.cgislatnre, and that the terms .,t tlm 
 seek redress against the Crown or the(iovermnent ^'greenuMit did not carry <nit this trust, as l.y 
 of Canada, and it was not in the power of the "i^' l>'<>vi-*i'>ns of the Provincial Act of IS(I7, 
 (i.pvernment of Canada or the Crown to give ^'mbodying the contract between the (iovcm- 
 then, the relief .sought for, -nor by ejectment, ment an.l the promoters of the plaintitfcoiupaiiy, 
 because, assuming that ejeetmeiit would lie in '' was niutually agreed that prior to the opcnin- 
 respect to the rights claimed by plaintitls to "f '•"' '"'"l =^ ^''i'^"' aiTangcmcnt sho,il,l l,e 
 operate the railway un-ler tiie agreement of '"•"'''' f""' ""' ""itnal u.se by the (lovcnnniit 
 1,S7I, plaintitls c.mhl not by that action obtain ''"'^ t>"' ^■"■ni.any of their respective lines, 
 any relief in respect to tlie original agreement,"''''^'' stipulati..ii ha.l n..t been cairicd .mt in 
 with the provincial government as to running *•'« "gieement, as there was no provision in u 
 powers, and this gr.nin.l of demurrer being to f'>r <i trafiie arrangement. 
 
 the whole writ, even if applicable t.) part ..f the ^''''^ ^liat the agreement embo.lied all the 
 
 writ, must be overruled, as it could not be g.io.l ^'''^'''''t'"' provisi.ms of the original cntract. mv\ 
 
 in iiart an.l ba.l in part. *■'"'' the (iovernment not having iiisistcl mi 
 
 Wimhor and Aiiim/,olis h'adira,/ v. ' •"■^'•"8 '•""ning powers over plaintiffs' r.ia.l was 
 
 IVrshra Count l,.s Jiudirai/, R. k. D., --'87. '"* '''"''•''"" ''"''y l'l'>'"t>*^'s si"-""!"! '"^ .leprivc.l ot 
 
 running powers over the Halifax an.l Wimlsur 
 
 Oil npi>mltothcS;>,pr.m<CourtofXor»Srotia, 11,,^^ x>\\t that on the other han.l the groiiml 
 
 Hild, infer a/ia, that the power of legislation stated applied with great force to the action .if 
 
 as to the Windsor Uranch, i, e., the line of rail- ; the Dominion Legislature under the Act of 1874, 
 
 way between Windsor and Windsor Junction i inasmuch as the Dominion Government having 
 
27!? 
 
 CAPIAS. 
 
 274 
 
 takfii till' rnail. uiiclcr the provisimis (if an 
 Iiii|)friiil Act, clotlifil wilii a trust, tlie Domi- 
 njiin LciiisliituiH' «iis llicri'liy rustiuiuecl fiDiii 
 adiiiL' ill violatiiiii of tliat tiiist. 
 Th' Wiiiil-'or (iiiil .liiiiii/'o/i's /'alhrai/ Co. 
 
 V. '/'/(< ll'i "'i ril ('dilii/l' t li'di/irfii/ Co., 
 
 n. K. I), :w.3. 
 
 Oil '(f/i' III In till Siijifi nil ( 'iiiirl (;/' Xora Si'olia, 
 llilil, that thf aj:;rci'iiu'nt was lU'vertlit'luss 
 valjil aiiil liiniling u])<in thu Dniiiinion (invt'iii- 
 meiit. the imhlic interests Imviiig liecn pi'otected 
 l.y it> pidvisidiis to the .satisfaction of tlio (Jov- 
 irnim-iit. 
 
 ir. <!■ .1. Hdihriuj Cii. V. ir. C. Ilailimi) Co., 
 
 2 H. .ic (l,,'2.S(t. 
 
 Oil (ij, III III Id llli I'liri/ Coilliril, 
 
 liichithe 15. X. A. Act, I8(i7, s. H>H, lea.l in 
 fipiiiii'ctinii with the ."U'd schedule thereunto, all 
 niiiwiiys helonging to the Province of Nova 
 Sciitiii. including the railway in suit, ))asse(l tf) 
 aiirl liccanie vested on the 1st duly, IStiT, in the 
 lliiniiiiion of Canada: luit not for any larger 
 iiitirest therein than at that date ludonged to 
 llu' Province. 
 
 The railway in suit lieing, at liie date of the 
 statutory transfer, suliject to an oMigation on 
 the part of the I'rovineial ( iovernment to enter 
 iiitnatratHc arrangement with the respondent 
 iiiinpaMy. the Dominion < iovernnient, in piir- 
 >iiiiMcc of tiiat oKligation, entered into a further 
 iigieement relating thereto, of the 'Jl'iid of Scp- 
 ti'iiilicr, 1,S71. 
 
 ','""''•(, whether it was iillrii /v'/v.v uf the 
 Dniiiinion Parliament, l>y an enactment to that 
 elft'ct, to extinguish the rights of the respondent 
 cciin))any under the said agreement. 
 
 r.iit. lull/, that Dominion Act, ;!7 Vic, e. 1(5, 
 ili'l iMt, upon its true construction, j)nrpoit so 
 tiiilii, ami although it authorized a transfer of 
 tlie railway to the a]>:)ellant, it ilid not enact 
 Mall tiansfer in derogation of the ivsjiomlent's 
 rights under the agreement of the "J-ind of .Sep- 
 temher, IS71, or otherwise. 
 Til' 11'/ %/./•(( (Joiiiitics Ii(tihi-(iii Coiiijxnn/ v. 
 '/'/(' ]ViiiilM)r <t' Aiinniiolk Ji'iii/ircii/ Co., 
 
 7 App. (,'as., 178 ; 
 
 ol L. J. P. C.,43; 
 
 40 L. T., XA ; 
 
 I Cart., SO?. 
 
 " //( /'/•/•.*, a Ptiitish sulijeet forfeits every 
 right, which lu! would be entitled to in that 
 ca[)acity, liy residence in a foreign country. If 
 (Ileal lii'itain were in a state of peace, iluiing a. 
 war i)etween Franco and Spain, an Knglishmaii 
 who inhaltited either of those countries woidd 
 he liable to have his ])ropertj' seized liy the 
 respective enendes, as much as the nattiraPhorn 
 subjects of the country. His British allegiance 
 would afford him no protection. Per.sons resid- 
 ing in a country, reaping the advantages of the 
 trade of that country, and contrilmting to the 
 welbbeing of that ccmntry, mtist for the purpose 
 of trade be considered as belonging to that 
 country." Sie Statitks, Imperial, .S.S (ieo. III., 
 
 e. ")(), y/o.</. 
 
 Till Xaiiri/, Stewart, 49. 
 Sir, «/>o, AlIEX. 
 
 BKOKEK. 
 Obligation to Coniniiinlcate facts to cus> 
 
 tonicr — NVhere a stock liroker sells shares on 
 his own account and not in the ordinary course 
 of business to a customer with whom he has had 
 previous dealings as a broker, and who may 
 therefore rely on his j\nlgment, it is his dnty to 
 eommunicate the fact to the purchaser. The 
 absence of such a communication is sutficient 
 ground to set aside a verdict. 
 
 Sairi/i r r. Cray, .S X. IS. D., 77. 
 
 BVILDINO SOt'IETY- 
 SVe ARUITKATION AXD AWARD, 42 
 BOXD- 
 MORTGAOE. 
 
 BRITISH SUBJECT. 
 
 Britisli subject resident abroad — EflTect 
 
 of stich residence— The <iuestion of what rights 
 and privileges a British sul)ject forfeits, as sach, 
 by residence abroad, discussed. 
 
 BURGLART- 
 -9.fi CRIMINAL LAW. 
 
 CALLS- 
 See BANKS- 
 COMPANY. 
 
 CAPIA8- 
 Sec Arrest. 
 
27i 
 
 CANADA TEMPERANCE ACT. 
 
 270 
 
 CARGO - 
 sv. SHIPPING. 
 
 CANADA TEMPERANCE ACT. 
 
 1. Appeal - None from County Court to 
 
 Supreme Court— A convict imi l)y a Mtii)cii(liiii-y 
 niagistriitc was rfiii()V<'il l)y ajipeal to the ('ouiity 
 Court and tlicre (|uaslu'il. 
 
 llihl, that no ai)|)ciil lay to tlio Sujiicmc 
 Court, as none was expressly given l)y the Act 
 creating the offence and giving the aj)peal to 
 the County Court, allliougii the Acts creating 
 and organizing the County Courts gave a general 
 appeal to tlie Supieine Court. 
 
 Costs refused to respondent as he should have 
 moved to (juasli the a|)])eal at an earlier stage. 
 
 MrDoiinlil v. MrCiilxli, ."> K. & (i., 1. 
 
 2. Appeal None to Supreme Court from 
 
 County Court under the provisions of Canada 
 Temperance Act, 1.S78— Xo appeal lies to the 
 Supremo Court from the County Court in cases 
 arising under the provisions of the Canaila Tem- 
 perance Act of 1878, and no such appeal can he 
 taken under the Local Act providing generally 
 for .'i])peals ti'om the (^ounty Court. 
 McDonald v. MrCiiith followed. 
 
 (?«««» V. Wolfe, 7 R. & C, '24 ; J 
 7 C. L. T., -).S. 
 
 3. Authority of Commissioner to allow 
 
 writ of certiorari must be shown— A writ of 
 certiorari vas issued to remove a conviction 
 under tlic Canada Tem|)erance Act. Tiie writ 
 was allowed hy a (^onunissioner, and it was not 
 shown that there was no .Supreme or County 
 Court .Tudge in theCounty, (Acts 18S2, c. 10, s.'2.) 
 
 I/ild, that the writ must he set aside, as it 
 was not shown that the Commi8si(mer had juris- ! 
 diction to issue it. i 
 
 Pe.r McDonald, C. .J., and Weatherbe, J., 
 that the indorsement, "allowed, security having 
 been tirst given and tiled," was not sutticient. 
 
 Corhi'tt v. O'lhJI, 4 R. & ({., 144. \ 
 
 4. Bringing Act in force — Preliminary 
 
 proceedings — Irregularities in — Cannot be 
 raised after issue of the proclamation, and the 
 holding of election — Mandamus to Justices of 
 the Peace — Application was made to the Court 
 for a writ of mandamus to compel two Justices 
 of the Peace for the County of Cumberland to 
 issue a warrant against defendant for a violation 
 of the Canada Temperance Act, 1878. 
 
 The .lusticcs had ileclined to issue the wnrrunt 
 on the ground that the notice to the .Secrutiiry 
 of .State referred to in sections 5 and (i of tlie 
 Act and refjtiired to be tiled in the ollice of the 
 .Sheritl' or P,egistrar of Deeds of, or in tlic 
 County, was not regularly tiled, there being two 
 Registrars of Deeds in theCounty of ( 'umber- 
 land, one at Andierst and one at Parrsbuni, and 
 the notice having been deposited oidy witii tiie 
 former, as a conse(|Uenee of which the Justices 
 considered that the sul)sc(|uent proceedings were 
 irregidar and that the Act was not in force in 
 the County. 
 
 The proclamation iiaving issuc<l and tiio elec- 
 tion having taken jihue and resulted in the 
 adoption of the Act. 
 
 //'/'/, that as the ell'ect of going lieliind tlie 
 election wr)uld be to create dilticidties and mis- 
 chief, the language of the Act must be rejfank'd 
 as directory and not mandatory, and that tiie 
 maiidamtii ajiplied for nuist issue. 
 
 /'(/■ McDonald, C. J., and Uitcliic, ,1., that 
 the (loveruor in Council being constituted the 
 judicial authority to determine wbether the ])re- 
 liminaries diret'ted by the Act had been coniiilied 
 with, and having determined in the aHinnative 
 and issued the proclamation, the regularity of 
 the preliminary proceedings could not be (jucs- 
 tioned. 
 
 Queen v. ///<■/,•>■, 7 R. & (i.. S9; 
 7 C. L. T., 14.3. 
 
 5. Conviction under Canada Temperance 
 
 Act — Proclamation bringing Part II. into 
 force— Day not fixed — Defendant was convicted 
 under one of the penal provisions of Part II. of 
 the Canada Temperance Act. 1878. The ])riivi- 
 siou for bringing that part into force enacted, 
 that after a poll had been held in any County, 
 the Oovernor-tieneral in Council might declare 
 that the second part should be in force and tiike 
 effect in such County "upon, from and after 
 the day on which the licenses for the sale of 
 spirituous liquors then in force in such County" 
 .should expire, and that upon, from and after 
 that day, the second part of the Act should 
 become and be in force, and take effect in such 
 County. In the County of Kings, where the 
 offence had been committed, the poll had lieen 
 held, and the Governor-(teneral in Council de- 
 clared by proclamation that the second part of 
 the Act should be in force and take effect 
 "upon, from and after the day on which the 
 annual or semi-anuiuil licenses now in force in 
 said County will expire." There were no 
 licenses in the County, and there had been none 
 for years previously. 
 Held, that the conviction must be quashed, 
 
277 
 
 CANADA TEMPERANCE ACT. 
 
 278 
 
 as no I 
 
 or hy 
 
 lay liml liccn fixed eitlter 1>y tlip statute' Hrhl, that the magistrate liacl exceeded liis 
 y proclamation for )>riiigiiig tiie second part jurisdiction in making the conviction in the 
 
 of the Act into force in Kings I'oinity. 
 
 Queen v. Li/oiix, .") K. & O., 201. 
 
 6. ronvlctlon must show where offence 
 
 committed— A conviction for selling intoxica- 
 ting; liciiior contrary to tlie ))rovisii)ns of the 
 Caiiiiilii Temperance Act, contained no reference 
 to tiie Act, did not .show wliere the otfence 
 w.is committed, and merely adjuilged that the de- 
 fiiidiiit piiy SKH) for selling intoxicating liijuors. 
 
 //M, had. 
 
 Till' iiifiirmation and warrant cannot he looked 
 at lo .SIC tiiat an oll'ence has liccn committed. 
 
 U'ood/orh- V. J>ir/,i> , C, \\. & (i., Si) ; 
 lie. L. T., 142. 
 
 «. Conviction - Certiorari —Court niuy looli 
 
 at evidence, when sent up, to determine juris- 
 diction -Certiorari quashed— Practice— Defen- 
 ilaiit was convicted hefore the Slipcndiaiy 
 Magistrate for the Police District of Yarmouth, 
 of iiaving unlawfully sold intoxicating liciuor 
 contrary to the provisions of the Canada Tem- 
 pcriiiice Act, 1878. 
 
 A writ of cef/ior(iri having issued, the niagis- 
 triite sent up tile minutes of the evidence taken 
 before him, as part of his return, instead of 
 returning the facts, 
 
 /AW, following //r(»Y.s- v. //fo/, ti R. & C, 42, 
 that tlic evidence being licfoi'e tlie Coiu't, it 
 niiglit l)e looked at to determine the (juestion of 
 jurisilictinn. 
 
 It appealed from the minutes of evidence that 
 (lefeiiilant, who was keeper of an hotel or hoard- 
 ing house, had gone out and purchased or 
 
 ah.senco of the defendant, and that the convic- 
 tion must therefore he set aside. 
 
 Also, that under the Canada Temperance Act, 
 sec. 107, it is imperative ujion tlie magistrate to 
 adopt the jirocedure specially made for cases 
 under the Act, the express provisions in that 
 section taking the matter out of the ordinary 
 couise laid down in the .Summary Convictions 
 Act. 
 
 Qiiein. V Sa/tfr, 20 X. S. R., (H R. it (i.), 206 ; 
 
 8 C. L. T., 380. 
 
 9. Costs included In conviction -Defend- 
 ant ^vas convicted for .selling intoxicating licjuor 
 contrary to the provisions of the Canada Tem- 
 |)erance .Act, 1878, and adjudged to ])ay the sum 
 of ^M, to he paid and applied according to law ; 
 also, to pay the informant the sum of !?G. 14 
 costs ; and if such sums were not jiaid forthwith 
 that the .same he levied hy distress and sale of 
 defendant's goods ; and, in default of distress, 
 that defendant he imjuisoned in the common 
 jail for the space of thirty days, unless the 
 sinns and charges of the distress and commit- 
 ment, if any, were scxnier paid. 
 
 //(/(/, /«'»• Ritchie, J., that there was sufficient 
 ground for a ci r/inmri. 
 
 Per Weatherhe, •(., that the conviction was 
 bad. 
 
 (Quaere, whether umler the practice the writ 
 of crrlioravi should not have been allowed in the 
 tirst instance without any rule nisi. 
 
 Queen v. Ward, 20 X. S R.. (8 R. it (.1.), 108. 
 
 10. County Court prohibited from pro* 
 
 procured li<iuor for her hoanlers, with money ceeding with n rh'omri to remove conviction 
 given her for that ])urpose, acting meiely as a under Act — Reference by Judge at Chambers 
 
 messenger, and w ithoul making any profit. 
 
 to Court ill hn)i'' — .\ conviction under the Camida 
 
 Hild, that this evidence was not sutKcient to Temperance Act was removed ti> the County 
 
 support the conviction. Court by rertiornri. The prosecutor applied to 
 
 ','«""■(, whether ))oints which had been <lis- a .Judge of the Supreme Court it Chamliers for 
 
 cussed on the application for the writ of rertio- a writ of prohibition, to prohil)it the County 
 
 ron'couM be brought before the court a second Court from further proceeding on the wrtiorari. 
 
 time on the motion to quash the conviction. 
 
 Quint v. McDonald, 7 R. & <i., .S.Sfi ; 
 
 and the order vixi for the writ of prohibition 
 was, by a Judge presiding at Ciuimbers, refer- 
 7 C. L. T. , 37(5. red to the Court in haiir. Defendant's counsel 
 I objected that the Judge at Chambers could not 
 
 8. Conviction for third offence, made in *"> '<^f«' t''*" application. 
 
 absence of defendant, set aside— Procedure-- : ^t/d, that the writ of prohibition must be 
 
 Defeniknt was convicted in her ab.sence of a third ' allowed, but without costs. 
 
 offence again.st the Canada Temperance Act, , Qneenw O'Xei/, 20 X. S. R., (8 R. & O.), 530. 
 
 1878, and was sentenced to imprisonment for 
 
 sixty (lays in the county jail at Annapolis, and | H. Jurisdiction— ExCCSS Of— First Offence 
 
 topay the sum of .?9.33 costs to the prosecutor, —Defendant was convicted of a first otTence 
 
 and in default to be imprisoned for a further i under the Canada Temperance Act, 1878, and 
 
 term of fifteen days. | for such offence was adjudged to pay the sum 
 
279 
 
 CANADA TKMPERANCE ACT. 
 
 2o0 
 
 (if .'is.'iO iuicl iiists, iiiid if tiic siiiil sfVfi'nl Slims WHS liiiil (111 tlu' j^romiil tliMl tlio jipiuilly iiM|Kiscil 
 
 were iiiit paid furtliwitli iluit tliv saiiiL' lie levii'd was in cxt'oss of tlmt iiiulinri/fd l>y tluj Act,,iiiil 
 
 liy distiuss aiiil suit! of tho goiids uiid cluittuls of if for ii st'i;oiiil otl'fiK.i', on tliu ground tliiit il m;u 
 
 (left'iiilanl, and in ilefault of .sii(li<ifnt ilislruss iniide in tliu iiliMunuu of tliu defendant and witii- 
 
 that tile ilefi'iiilant lie iiiijii isoned in tlie eoninion <iiit imtii'e. 
 
 jail for the space of three inontlis, unless the said A motion having lieen made to aiiieiiil iho 
 
 several sums and all losts and charges of siuh eonvirtioii iiiider the Act, sections 117 and IIS, 
 
 distress niid of the i-oiimiitiiK'iit ami conveying liy reilucing the ainoiint of the line, 
 
 of the defendant to jail he sooner paid. Ihltl, that the power of the Court to make 
 
 III Id, that the conviction should not have such amendment was taken away liy the wnnls 
 
 gone fnrthi'r than to impose the line and costs, "f secticui 117, "provided there is evidence to 
 
 lea\'ing siilise(|iieiit jiroceediiigs in the matter jirove such ofl'ence and no greater penalty is 
 
 for a further application to the same or another imposed than is aiitliorizeil liy such Act. " 
 justice. 
 
 <Jii(i' n , whether imprison; ^Mit could lie awar- 
 de<l in such a case for a lirst oH'eiice. 
 
 Qiiiui V. On; •_'(» X. ,S. K., (S U. ^t <;.), 4'.'(; ; 
 
 !•('. L. v., llil. 
 
 I'i. Jurisdiction -Inrormalioii and war- 
 
 r.ant must show facts giving jurisdiction 
 Constable— 111 an action for the conveision of a 
 (piantity of intuxicatiiig li(|Uiirs the defendant, 
 P., justified as a constalile, acting under a 
 warrant purporting to have heen issued hy a 
 
 .!/«), that the latter part of section 117 iiiimt 
 lie read as if liie words " for the ofTence charj^'uil' 
 were added. 
 
 'the ground having heen taken, on the pari nf 
 the proseciitioii, that the writ of e.xecutiiin, nn 
 which tlu^ motion to ijuasli the conviction was 
 liased, had not heen sueil out w ithin six inmitlij 
 after the date of the conviction, as reipiireil liy 
 the Knglish Statute, l.'Hieo. ■_». c. IS. 
 
 //'/'/, that the statute is not in force in tliij 
 I'ldvince, not lieing oliviously applindilc iiinl 
 neces.sary to our coiicliiioii, ami the legisliitiiie 
 
 Justice of the Peace under the provisions of the : "^ ^'''^ Province, in legislating uiion the suhjeot 
 Canada 'remperaiice .Vet, 1.S7.S, and the deteu- 
 dant .\I. as his assistant. 
 
 'I'lie facts necessary to give jurisdiction did 
 not ajjpear either in the information or warrant, 
 and tiie warrant was issued liy one justice, con- 
 trary to .section 10,S of tho Act. 
 
 Ililil, that the conviction was had. 
 AI-", that the constahle lieing a trespasser, 
 his assistant could not justify under iiiiii. 
 
 Nothing will lie intended in favor of the juris- 
 diction of an inferior court. 
 
 (InllUiiii- V. I'l/ir^oii 1 1 a/., 'itt N. ,S. f!., 
 
 (SR. .\: (;.),•_>•.'•.'; 
 SC. L. T., ;{!I7. 
 
 13. Penalty in excess of tliat antliorizcd 
 
 by Act — Motion to amend conviction— Con- 
 sti'uction of sees 7 17 and 118— ^Imprisonment 
 in default of distress -Objections by siibstivn- 
 tive motion— Defendant was convicted for un- 
 lawfully .selling intoxicating lifiuor contrary to 
 
 (if ct rfiorari, having adopted the provisions nf 
 many Knglish .Statutes while omitting to re-in- 
 act tile piiivisions of the Act in (|iiesti(iii. 
 
 .l/«), that the object ion, if available, iiuist iiave 
 been taken by a substiintive motion to .set iisiile 
 the writ of n rh'orari, and not in opposilimi in a 
 motion to (jiiasii a conviction returned in ulicili- 
 ence to the writ. 
 
 The magistrate making the c'onvicti<iii liaviiii; 
 imposed two months' im]irisoninent in default 
 of distres.s, 
 
 Ifi/il, that his jurisdiction, so far as iclateil 
 to the trial and conviction, ceased when homaile 
 the conviction ami imposed the jienalty. ami 
 that he had no authority at that time to tix any 
 term of imprisonment. 
 
 After the conviction application may he niaile 
 to the same or to any other justice in the same 
 territorial divi.sion for a warrant of distress, 
 whereupon the justice applied to will coiisiiler 
 the eflect of the warrant upon the defendant 
 
 , . . and his family, but if he decides to grant the 
 
 the provisions ot the Canada Temperance Act, ■ ,. ■ ^ c ■ ■ .,.,w,„h 
 
 ,„_ ' , ,. , iv-i.wt c ,-i,_i,, , \y.j,.rm,t, can iiniKise no term of inipri.soiinient 
 
 J8/S, and adjmlged for such otieiice to forfeit' 
 and pay the sum of J^KX), and also to pay tlie 
 prosecutor .'?7. 10 for his costs, and if such sums 
 were not paid on or before a day appointed it 
 was ordered that the same should be levied by 
 distress of the goods and cliattels of the defen- 
 dant, and in default of distress that the defendant 
 should be imprisoned for the space of two months 
 unless such sums were .sooner paid. 
 
 Held, that the conviction, if for a first offence, 
 
 until after the return is made and he kn<iws the 
 amount remaining unpaid. 
 
 I{(!){iia v. //yd,, 9 E. C. L. & E. R., 305- 
 distinguished. 
 
 Queen v. Porter, 20 N. S. R., (8 R. &(;.), 33'2; 
 
 9 0. L. T.,37. 
 
 14. Proceedlnss under Act held to be of 
 
 a criminal nature— Defendant having been con- 
 victed of selling intoxicating liquor contrary to 
 
281 
 
 CANADA TEMPERANCE ACT. 
 
 S82 
 
 tilt' piDvisiDiis of tliu ("aiiiulii Ti'mjR'riiiioe Act,! 
 ](*TH, ai)i)li<'iiti<)ii WHS iiii'.ik' to a .liidge of tlic 
 Siiiniiiif (diiit, lit Cliiiiiilpcrs, fur ii \Mit of 
 iiriiiii'iii'l to luniove the jH'ovet'dinj^s into tlie 
 ,><ii|iiTiiii' Coiiil. 'I'Ik' iijipliciition haviiii,' liei'ii 
 refused, ilufi'lidiillt ii|)|»'alcil. 
 
 //./(/, tliiU tlu! iniUtt'i' was 11 criminal one 
 fi.iiii wiiic'ii tiieri' was no appnal. 
 
 Till' iippwil liaviny l)oen ilisniissLMl on a piu- 
 Iiiiiiiiiiiy iilijci'iion, of which no notice iiad liccn 
 givLii, tlif onk'i- was made witliout costs. 
 
 Qui I II V. ('nUiiiniiil a/., 
 20 N. S. H., (M K. i\; (1.), ;«).■); 
 !»('. L. 'I'., «•_'. 
 
 13. rroseciition for violudon oriirovisloiis 
 
 — Iicfiiidant was |)nisccutcd foi' scMing iiitoxi- 
 wtiiig Uiiuor contiai'y to tlie ])rovisions of tiie 
 Ciiiniila Tcni]icrancc Act ISTM, and was dis- 
 tliiirgcil for want of evidence that tiie liquor 
 \v;issiil(l liy him personally or with his authority. 
 On iipjical, the judgment lielow was sustained, 
 diiiiigii the Court were strongly of opinion that, 
 (111 lliu evidence, defendant should have been 
 (.unvictud. 
 
 Tai/lor V. (;ariii, OR. & C, 3,3,-); 
 (if. L. T., 44,->. 
 
 16. Pruseriitluiis under Witness -Arrest 
 
 for disobedience of summons to appear and 
 testify- E.scape and pursuit— Jurisdiction of 
 .Magistrate to call witnesses — Power to ad- 
 journ hearing — I'laintill' was .summoned to 
 iipiicar as a witnes.s for tlie prosecution on the 
 triid (if an information for a violation of tlie 
 t'iUiiidii TcMi|)eraiice Act of 187.S. He was 
 served witli tiie sunimons, and was paid the 
 regular fees for travel and attendance, hut dis- 
 (ilieyed tiie sunimons and made no excuse. The 
 Magistrate, hefore wiumi tiie information was 
 laid, issued four wai'rants in succession to liave 
 lil.iintill"arrested and hrouglit liefore hiin to testi- 
 fy, and adjourned tlie hearing of the cause from 
 time to time for that puri)o.se. Plaintiff evadeil 
 arrest under the first three warrants, but was 
 wrested under the fourth. Having escaped, he 
 was rearrested by defendants who gained access 
 t'la iumse in which he had taken refuge, by rais- , 
 iug a window. On his refusal to give bail, he ] 
 was placed in jail. | 
 
 ffdd (1.) That as the Magistrate had juris- [ 
 (littion to enter on the enquii-y as to the fact of ; 
 the proclamation of the Act, and whether licen- | 
 ses were outstanding or not, he had authority to 
 Mmpel the attendance of witnesses. 
 
 ('-). With regard to defendants opening the 
 ^vindow and entering the house to make the ar- 
 fwt. (a). That the prosecution being a crimi- 
 
 nal proceeding, the warrant was not suliject to 
 tiic limitations which attacli to civil process, 
 but had many of tlic charactei istics of an attuch- 
 ment for which it was a substitute. ()>). That 
 the evidem.'c showing a jirevious arrest and an 
 escajie, the defeiiilanls might lawfully enter tlie 
 house ill fre.-li jmrsuit, 
 
 (.'{). Tliat the placing of tiie plaint ill' in jail 
 under the eircunistances was justiliable. 
 
 (4). That section 4<» of the .Summary Con- 
 victicuis Act is not intended to prevent more 
 than one adjournment or, if so, tlie plaintiff 
 could not take the objection. 
 
 Miss, n,/, ,• V. I'urki V il al., (1 K. & ( i,, '2:i7 ; 
 
 (>(', L. 'J'., 444. 
 
 17. Stipendiary Magistrate held witliin 
 
 13 Geo. 2, c. 18, s, 5— Defeiulanl was convicted 
 before the .Sti])eiidiary Ma^'islrate for t'ornwallis 
 Police District of a violation of the I'anada 
 Tenil>eraiice Act, IMTS, and the coiniction 
 having lieen brought up by cirtiomri, the Court 
 was moved to set the conviction aside on the 
 ground that the Act was not in force when it 
 was made. 
 
 The order for the n rfiorurl was not moved for 
 until after the lapse of twenty-two months from 
 the date of the conviction. 
 
 //'/'/, that ill making llie conviction the Sti- 
 pendiary Magistrate was exercising the functions 
 of a Justice of the Peace, and conseiiueiitly that 
 the Imperial Act, bStieo. 'i, c, 18, s, r>, limiting 
 the granting of the writ of eer/ior(tfi to si.x 
 montiis after the date of the conviction, applied. 
 Tlie motion was refused witli costs and a jiroce- 
 ih iiilo ordered. 
 
 The (juestion was not raised whether the Act 
 of 13 (ieo. "J was in force in this Province, but 
 merely whether the Stipendiary Magistrate was 
 within the Act. -Vet (/itttii v. I'orlci; "JO N. .S. H. , 
 iio-2. 
 
 Queen v. McFadihn, 6 1{. & (1., 420 ; 
 OC. L. T., o-SS. 
 
 18. Stipendiary Magistrate wlio is also a 
 
 J. P. can act as such under— 'J'lie Stipendiary 
 Magistrate of New (ilasgow sat as a Justice of 
 the Peace with another Justice to try a case 
 under the Canada Temperivnco Act, which pro- 
 vides that trials may be had before a Stipendiary 
 Magistrate or any two other Justices of the Peace 
 for the County. 
 
 Held, that no disqualification was intended 
 by the word "other," and that the conviction 
 was gooil. 
 
 Weatherbe, J,, duhilanfe. 
 
 Queen v. Graham, 6 R. & G., 455; 
 6 C. L. T., 537. 
 
283 
 
 CARRIERS. 
 
 iH 
 
 CAKKIKKS. 
 
 without tt jury, fouiul tliiit i\w jjixxls Imd been 
 
 (liuiiiiged ill liciiig liiudud, iiud giivu judgintnl 
 
 fcir plaiiitilV. 
 
 I/iltl, that till' lauding of the g Is at the 
 
 railway wluilf diil not tlischafgu the dtt'iiHlaiits, 
 — . . , and llmttk'fi'udauts were liahlu uotwithstaiidiiig 
 
 the valiu' of luT trunk which xlie alleged had ,1^, exceptions in thehill of lading, for tin 
 
 1. Action iiKnlnst by passenger for loss of 
 
 luggage Questions of tact for jury alone- 
 
 IMaintitV, a passenger from Halifax to I'oitlaml liy 
 one of defendant Company's HteanieiH, sued for 
 
 the hands of the Company 'h i,, ti^. g„<ids l.y rain, whether caused in the 
 aervanlH and a check given her therefor. l)i^ _,f i„,„iin„ ,„. ('voiii tin. driiiiiinuM i.l' tin. si 
 
 been plaeeil 
 
 fendautsi denied receipt of the trunk, and gave 
 evidence that the plaintitl' had received the 
 check not from them, hut from the caliman who 
 had driven h.'r to the wharf. At the trial, the 
 learned .ludge wan inclined to grant a motion 
 for a nonsuit, hut consented to hear defendant.s 
 evidence, and take a verdict suhject to the 
 opinion of the Court, whereupon a verdict wa.s 
 rendered l>y consent for plaintiil' for the full 
 amount claimed. The question was purely one 
 
 le uijiiry 
 
 L' net 
 
 if landing or from the drippings oi the sliei',, 
 over which ])laiutitl' had no control. 
 
 I'lr Weathci'lie, .)., dixicutiiiij, that liie m\\. 
 signees not having taken the goods from aioni;- 
 side, they had lieen landed liy the niiisltriiiul 
 depoHited in the eompany'H wareliouse ut the 
 consignee's risk of injury from rain, tlicre luiiig 
 nothing in the liill of lading to limit tht^ siiiij- 
 owner as to the place in the port of Halifii.K at 
 which the gocids were to he landed liefme lieiiig 
 
 U'liosited in the company's wi 
 
 — . - ,n ,,w.^,i.v,., ... ...V- ^ y,...j ^ .rarehouse; ami, 
 
 of fact, the only point of law involve.l lieing as f,„,j|,^,,.^ that the verdict should he set aside 
 
 J. _ ...1.. i.\ al... ..l..i..*llV ..mrlit fifkf it\ llllfit Iwutl) 
 
 to whether the plaintilV ought not to have heen j 
 non-suited. 
 
 //</'/, that there should he a new trial as the 
 case was one for the jury oidy and not for the 
 Court to decide. 
 
 Sfimiiioii V. Thr Xcii: EiKjluiid and Nora 
 
 Scotia Sltdnifhip Co., 3 N. S. D,, 184. 
 
 lecause th-re was no legal evidence in siippoit 
 
 of the ground upon which it was based, namely, 
 
 that the goods were injured in the act of landing 
 
 them. 
 
 Itohtrtsou V. Dominion S. S. Co., 
 
 1 R. &(i., 149. 
 
 2. Bin of liidlni? -Exceptions in Liability 
 
 3. Carriers -To what extent they may 
 
 exempt themselves from responsibility for 
 
 Z« Dili Ul lllUlllfj JJ.«V|H1"".J ■" mjM..wii.ij w-v — i-w - 1 ., 
 
 of shipowners -I'hiintitf shijjped a (piantity of injury in absence of legislative enactments- 
 iron on defendants' steamshi)), and took a bill In the absence of legislative enactnicuta of n, 
 of lading containing these words: "hiss or dam- restraining character, a railway or steamlxiiit 
 age resulting from . . . leakage, breakage, company may impose su.di terms upon the imh 
 rust, decay, frost, rain, injury to or soiling of lie as to exempt the company from rcspmisiliiliiy 
 wrappor-s or packages, however caused, ... for injury, however caused, including tlierelui- 
 excepted. The goods to be taken from along- [ gross negligence and eveti fraud or disi.iniiesty 
 side by the consignee immediately the vessel is on the part of their servants. 
 
 - ... , . ,, •,! 1 : r-, I .. riU... II 1 '/' I 
 
 Dod.^oii v. The Cnuid Trunk Raiin-uij Co., 
 
 2 N. s. I)., m. 
 4. Exemptions— Common Carriers -ton- 
 
 ready to discharge, or otherwise they will be 
 landed by the master and deposited at the ex- 
 pense of the consignee and at his risk of tire, 
 loss or injury in the warehouse provided for that .. ^ 
 
 purpose on the company's wharf at Halifax, or ; tract made with agent— Agent's eraployeea- 
 sent to the public store, as the Collector at the \ Power to do certain acta— Ordinary course of 
 port of Halifax shall direct." The steamship business — Liability of principal in case of 
 proceeded, (jn her arrival in port, to the railway [ loss— A number of cases of wine were ilolivercd 
 wharf, and in order to get at goods to be there i to S. & Co., defendants' agents, at the port "l 
 discharged, the plaintiff's goods were taken out | Antwerp, to be forwarded to plaintiil at Hid ■ 
 and dcpositeil in a shed on the wharf. I'laintiffi fax, X. S. The bill of lading was signed by 
 was aware of the arrival of the ship and paid [ S. & Co., pp. (!. K., and described the goods as 
 
 , . , ,. ..,!.. , • 1 _i_ 1 lu;,.,, The 
 
 the freight, but could not obtain delivery at the 
 railway wharf, as the approach was unfit for 
 teams, and the agent of the ship afterwards sent 
 the goods in a lighter to Corbett's wharf. The 
 goods were injiu-ed by rain either on the railway 
 wharf or in the shed. One of the plaintiff's wit- 
 nesses gave evidence, not objected to, tliat a 
 clerk of the agent for defendants had stated to 
 him that the goods had come out of the. ship in 
 the rain, and the Judge who tried the cause, 
 
 shipped in good order and condition. Hie 
 goods were shipped from Antwerp by a steaiiK-r 
 running to Liverpool, G. B., and on then' 
 arrival at that port were reshipped on bwiid 
 one of the defendants' steamships for Halit'iix. 
 On their arrival, plaintitt' was notilicd of tiie 
 fact by C. «& Co., defendants' agents at Halifax. 
 and was required to pay the freiglit and take 
 delivery. C. & Co. also demanded and received 
 from plaintiff his share of a general average loss 
 
2H5 CARRIERS. 286 
 
 coiwi'iiuent to itii accidfiit t(i tlie sliip on tlio //(/(/, tlmt (Iffoiulants woro liiilile iiotwith. 
 
 voyago. On exiimiiiiilion of tlie goods previous stiiiidiiii; tliu npuuiul contnut that the inaeliinery 
 
 U) iklivi'iy, it was found that si'Vi'ial of thu was to l)c rairiL'd at thu owni'iV rink, 
 
 ciwshail litrn tanipiTL'd witii, and a niiinlier of //</(/ ahti, tiiat tiiis was not a suit " for in- 
 
 luittlcs uf winii emptied of tiieif eonli'iits. (1. demnity for any damage or injury sii<5t;'.ined liy 
 
 K., liy wh<im tlie signature of S. ^^ Co. was reason of the Railway " under see. 'JO of tin" N. 
 
 utiixeil to the hill of lading at Antwerp, hail no S. Railway Act of 1880. 
 
 wiiltih iiutliorily to ch) so, Imt was the eldef IV hitman v. Tht H'e.^t<rii Coitiilin liu'diray Co., 
 
 clerk mill proxy of the lirm, and acted in the 5 R. &,(!., 405. 
 usiwl I'Durse of Imsiness. 
 
 //,/-/,/,.,■ .Jan.es, .) that the bill of lading «. t'ommon - Evldeiice of delivery of 
 
 ImvuiK been produce.l l.y the plaint itl at the gooda - Constructive delivery - Where the 
 
 requcl of defemlants- agent at Halifax, and .Judge in charging the jury told then, that "put- 
 
 Imvmg heen lecogni/.ed l.y then., and they hav- ting out of co.,sidcration all udniissions that had 
 
 a,g aHMa..ded and receive.l fn.n, plaintilY his ,,,„„ ,„ntradieted, which ..n that account ho 
 
 inopurii,,.. ot the gene.al ave.age loss, the thought they shoul.l dismiss from considerati.m, 
 
 paper,, whet.her properly signe.l or not, must the plaintirts were in his oph.ion clearly e.ititled 
 
 lie ticateil as the contract under which defend- to recover " 
 
 ants leceived and carrie.l the goods ; that y/, /,/_ that this was not a n.isdirectU.n. 
 
 (lefe.Mlants were hound l.y the adn.ission i,. the ^vhor.•e the plaintilf gave evidence, uncontra- 
 
 l.ii! ot ladmg that the goods were receive.! in ,,i,te.l, that defen.lant, the captain of a vessel, 
 
 S;.K„l„.-,kra..d condition, a..d the goo.ls hivving t,.ld her to send her goods t, a certain wharf. 
 
 l,ee„ ta,„pe,e.l with while in their possession, ,^,„, ti,.it she set them there. 
 
 ... ti.e ahsence of evnlcnce to l.rii.g them within /y,y,/, that there was evidence of a construe 
 
 the exen.pt.ons i„ the hill, defen.lants were tive delivery to the .Icfendant, which i.nposed 
 
 ''«"' M I 11 T , on 1. in. the duty of hioking after the plaintiff's 
 
 /o' McDonald, J.-lhat the appointn.ent of goods and taking then, on l.oa.d. 
 
 S. .\: Co. as defendants' agents authorized then. MorrUon <:t al. v. Thon,r-on, '.' R. &. C, 411. 
 to peifciiin all things usual in the line of liUoi- 
 iiess ill which they were eniployed, and involved 
 
 power lu do particular acts l.y others within the ^' f OmmOll - EvIdeilCC Of delivery Of 
 
 scope of iheh' l.usiness. That (J. K. as their good.s-Diflerence in liability for freight and 
 
 chief elerk was conipetent to sign the name of Personal luggage-l'Iaintilf, a travelling agent 
 
 the lir... to bills of huling in the ordinary course ^"'' '' '"•"■'''•''"'t'l^' '''"'. ''^'"y '^''""t to wiil from 
 
 of Imsiaess, without any written authority to •'^'- ^''''"''' *" Halifax m defendants' steamer, 
 
 •lu so. took two trimks ami an ordinary packing-box 
 
 That the .signature to the bill of lading havii.g '""' '-•''^•"' "'^il^'l <'"- '^H tl"''-'i= containing sani- 
 
 beea proved to have been ma.Ie in the usual P''^' "^ merchandise, to the wharf where defen- 
 
 co.u.se of business, n.ust be taken to have been '''"'^'' ''^"'"'^ ''"" '>''"*''' '""' «''''^ '"" ^"'"''" ""^ 
 
 aiuhori/ed by the defendants, especially as the ''"'' "' '''''"'«" "^ ^'•''" "'"' belonging to the 
 
 evi,lenee sliowed that it was afterwards adopted ''•''''•''• "'""°'' '" ''"'''^ ^''ip-i^'ity 'li'l "ot appear. 
 
 ana acted upon both by S. & Co. and by the "*" ''"^ ""'' ^""^ *'"-' *'""^'** *"^''" "" ''°'"'''- '^'''® 
 
 defeailants' agents in Halifax ; that defendants *'''" *''""''' '"'''''' ''^'^•'^'^"'^'l '^^ Halifax, but not 
 
 were bound to bring theniselves within the ^''^ ''"''" 
 
 exenipiions contained in the bill of lading, and, '''""''■«' whether there was sufficient evidence 
 
 having failed to do so, were liable. "^ delivery of the articles to authorized agents 
 
 „ „,, ,, of the defendants. 
 
 Hoiinev. The Jfoiilreal S. S. Co., w//.i t.i •. .■ i ., ^ ,■ 
 
 ^ ' iic/if, that the eviilence sustamed the finding 
 
 7 P f ^,p' '"^IT-' "^ ^'"^ J"''y ^'"^"^ <^''<' a"°^'« (being freight) were 
 
 . . I., Jia. (.(.gyived by defendants, not as freight, but as 
 
 I personal luggage, and that defendants were not 
 
 5. Common carriers -Xegllgcncc of— In- '''*^^'''- 
 
 jury to goods before the journey— Limitation Hctmillon v. Amjlo-Frcnch S. S. Company, 
 of actions arising from injury by railway— I 2 R. & C, 352. 
 
 Plaintiff delivered a planing Machine to defen. ■ 
 
 Jants to be carried between two Stations. In : 8. €onimon - Measure Of damages fOf 
 Pi'^cing It on board a car for that purpose defend- injury to goods delivered to— PlaintiflF delivered 
 ants servants injured the machine by negligence | to defendants a roll of oil cloth to be conveyed 
 or want of proper appliances. | by them as common carriers. On arrival it was 
 
287 
 
 CARRIERS. 
 
 288 
 
 found to be damaged, and the plaintiff refusing 
 to receive it Iji'ouglit action for its full value. 
 The defendants paid a small sum into Court. 
 The amount of damage was variouyly estimated 
 by different witnesses, the higliest estimate being i 
 only one-third the alleged value of the roll. Tlie 
 Judge at the trial directed the jury that if they 
 thought the damage exceeded tlie amount paid 
 into Court they should find for the ])laintitl', 
 otherwise for defendants. He furtiier directed 
 them that if the oil cloth was not seriously dam- 
 aged, but easily repairable, the plaintiff was 
 bound to receive it and claim oidy damages, but 
 if too seriously injured to fulfil the jnuposc for 
 wliicli he reijuired it, he might claim its wiiolo 
 value. 
 
 The jury found a verdict for the fidl value of 
 the roll, after deducting the sum paid into Court. 
 
 Held, Wilkins, J., di.^si-iitiiiii, tluit there had 
 been a misdirection ; that the plaintiff could only 
 recover damages to tlie extent of the injury he 
 had suffered and not the full value of the oil 
 clotli, and that the rule for a new trial should ' 
 be made absolute unless the plaintiff would con- 
 sent to have the amount of the verdict reduced. 
 Payment into Court does not admit the full 
 claim of plaintiff, Imt only the liability of de- 
 fendant to the amount so paid in, aiul if the 
 plaintiff would recover bej'ond that amount lie 
 must prove that he h entitled to do so. ; 
 
 Dodije V. Windmr lO Aiiiiajio/is Ita'diray Co., j 
 
 •2X. S. U., 537. : 
 
 9. Condition on ticlict— Negligence -Evi- 
 dence — Verdict —Plaiiitifi' lirought action to re- 
 cover damages for injuries caused to her luggage 
 on defendant's steamship, in consequence of tiie 
 breaking of a dummy or side-light, which, al- 
 though not constructed according to tlie latest 
 patents, was such as had been in use for vessels 
 of that class. The ticket for the passage was 
 issued under the Imperial Act, 18 and 19 Vic., 
 c. 1 19, whicli required comlitioiis forming part 
 of tiie contract to appear on the face. On tlie 
 face of plaintiff's ticket was a direction to " see 
 back of ticket," and on the back was printed a 
 condition that defendant was not to be responsi- 
 ble for loss resulting from shipwreck or disaster 
 of the sea. The carpenter swore tliat he had ex. ' 
 amined the dummy every day before the day 
 when the injury was discovered, and had seen 
 it at ten o'clock on the morning of that day. The 
 only evidence of negligence on his part consisted ] 
 of unsworn statements of the captain and other 
 officers, as testified to by one of tlie witnesses, ' 
 that the damage had been caused by the negli- 
 gence of the officer whose duty it was to visit 
 and inspect the luggage room. j 
 
 Held, that the plaintiff was bound by tiie con- j 
 
 ditions, and tliat the verdict for plaintiff, liased 
 upon the imperfect construction of the (luiiiiiiy 
 and the negligence of the defendant's scivarit, 
 must be set aside. 
 
 Wood v. Allan, 1 R. , (i., 477. 
 
 10. Conveyance of persons — Estimating 
 
 damages for injuries — In actions aguinst tai'- 
 riers of jiasseiigers for injuries, there seem to Ije 
 no well defined rules for estimating daiiiagi.-.>i ; it 
 is a matter to lie submitted to tiie sound discre- 
 tion and judgment of the jury, the actual loss to 
 the plaintiff, present and prospective, lieiiig the 
 lowest amount which they are justified in giviiii' ; 
 and the Court will not set aside an assessnieiit of 
 damages liy a jury where there is no evidence to 
 show misconduct of the jury, or that tliey acted 
 upon a wrong principle, or from a corrupt motive. 
 \Vlieie oral evidence was given of an oti'or read 
 to the witness from a card by the manager of a 
 railway, the wonls iiaving been taken down Ijy 
 the witness in his pocket-book, wiiicli was after- 
 wards lost, and the card having been retained 
 by the manager, it was held that the evidence 
 was admissible, not as evidence of an otter in 
 writing, Init as evidence of a verbal otler, of 
 which it was competent for the witness to si)eai< 
 either from a minute in Iiis pocket-book or from 
 recollection. 
 
 Blanchavd \\ IP'iiulior & Annajjolis Unihray Co., 
 
 1 R. k ('.,%. 
 
 11. Conveyance of persons — Injuries - 
 
 Negligence — Verdict — Plaintiff, a passenger 
 travelling by the Windsor & Annapolis Railway 
 from Annapolis to RicliiiKmd, fell while aligiit- 
 iiig from the train at the latter place and sus- 
 tained injuries, to recover damages for wiiioli 
 he brought an action against the Company, 
 charging them with negligence in respect to the 
 lighting of the station, and the jirovisiou of sale 
 means of transit of passengers from the cars to 
 the platform. The evidence on these points 
 being contradictory, and the jury having fouiul 
 for the defendant, the Court refused to disturh 
 tlieir verdict. 
 
 CurwiH V. WiinUor tl; AnnajioliH Jiai/irai/ Co., 
 
 3 N. 8. b., 49.'!. 
 
 12> Evidence, conflicting as to negligence 
 
 — Plaintitf brought an action against defendants 
 for injury to her luggage on defendant's steam- 
 ship, caused by the breaking of a dummy, or 
 side light, and the alleged negligence of defen- 
 dant's servants. Conflicting evidence was given 
 on the question of negligence, and a general 
 verdict was found for the plaintiff, which the 
 Court refused to disturl). 
 
 H'ood V. Allan, 3 R. & U., '^H- 
 
289 
 
 II, 
 
 CERTIORARI 
 CATTLE - 
 
 INML'FUKS TO, HY DOiiS, &c.— 
 
 Sec ANIMAL. 
 INJURINO— 
 
 Set CRIMINAL LAW. 
 
 290 
 
 I 2. Appeal, risht of, not exhausted-8uPt< 
 
 inary cause— No jurisdiction in Supreme Court 
 to re-hear on certiorari— Defeiiilant, in a cause 
 in the City ("ouit, tiled ami served liis grounds 
 of defence unsigned. 
 
 Tile Magistrate, after tlie plaintiff had l)een 
 sworn, decided lliat tile grounds were insudi- 
 cient, and directed judgment ]>y default to be 
 entei'ed. Defendant )ii-ougiit tlie cause up by 
 writ of certiorari. 
 
 Hilil, that an ap])eal lay from the judgment 
 beh)w, and further, that nothing couhl he dime 
 with the cause under the certiorari, aa the mat- 
 ter was a summary one and the summary juris- 
 diction of tiie Supreme Court had been taken 
 away. 
 
 /Vc Young, C. J., we have always held that 
 ctrtiorari does not lie when there is an appeal. 
 Eaijar v. Carey, 1 R. & ( J. , 49. 
 
 CEKTIOKARI. 
 1. Adjournment of proceedings obtained 
 
 on ground of absence of witness— Then proceed- 
 ings removed by certiorari — Service of rule 
 im to quash —Waiver — Defendant, brought 
 liefore Justices of the Peace on a charge of sell- 
 iiii; intoxicating liquors contrary to law, obtain- 
 ed 11 continuiince after the investigation had 
 been paitially gone into, alleging the absence of 
 a material witness, liefore the day to which 
 the trial «as continued by the Justices he sued 
 out a writ of ctrtiorari to remove the proceed- 
 ings to the Supreme Court. A rule nixi was ob- 
 tained to quash the certiorari which was served, 
 
 not on the attorney whose name appeared on tliary Magistrate for Police District No. ;{, in 
 the pwcipe for the writ of certiorari, but on his the County of Annapolis, for having wantonly, 
 late partner. Xo attorney's name appeared on cruelly and uimecessarily beaten, ill-used and 
 the writ itself. Xothing was done on the return abused a pair of oxen, the property of J. \V. D., 
 day of tlie rule nisi, but afterwards a rule was and for such offence were adjudged to pay a tine 
 obtaimd fidiii a Judge at Chambers to enlarge of 8'2(), with !S±i.4(j for costs, and, in default, to 
 it and have tile cause placed on the docket for be imprisoned, Ac. 
 
 the tiien next term. On the argument of this I The cause came before the Court on appeal 
 rule the attorney of defendant stated that he from the refusal of a Judge to allow a writ of 
 
 3. Application for writ to single Judge, 
 
 and afterward to Court — Practice — Dis- 
 cretion — Certiorari where right of appeal 
 not lost— Tlie defendants E. R. and H. R., his 
 wife, were jointly convicted before the Stipen- 
 
 didnot appear to show cause be<;ause tlie rule 
 as lie contended had not been served, and that 
 if the service was held to be good he wanted an 
 opportunity to appear. 
 
 Hihi, that the objection to the service of the 
 ride iiad lieeu waived by the attorney appearing, 
 and tiiat noi uthority being shown to justify the 
 issidiigof the certiorari after the commencement 
 of the investigation and before judgment, the 
 
 Certiorari, but a preliminary ol)jection having 
 been taken to the appeal in such a case, an appli- 
 cation was made to the full Court for a certiorari 
 on the same grounds an<l athdavits. 
 
 //(/(/, /ler McDonald, (\J., ami Townshend, J., 
 that it was open to defendants to make such ap- 
 plication. 
 
 A/xo, tiiat tlieolfence of which the defendants 
 
 were convicted was one which was single in its 
 grounds disclosed in the allidavit for certiorari i nature, an<I for which only one penalty could be 
 I'Miig merely formal or frivolous, and the Su- awarded, but that the award of one tine against 
 Feme Court having no power to try the cause the two defendants uas erroneous, and, on this 
 
 ground, that the ctrtiorari should issue. 
 
 Per McDonald, J., that the order of the single 
 
 Judge could not be got rid of except by way of 
 
 a""v, as its summary jurisdiction had been 
 a'tlished, tlie certiorari should be (juaahed and 
 the cause remitted to the Justices. 
 
 ■''wrc, whether the writ of ft>v;omr/ was not 'appeal, the law constituting a single Judge, in 
 <f eetive for want of the name of an attorney. ^ such cases, a tribunal with original jurisdiction 
 
 Hatiierlie, J., dissciitiu;i, held that the orig- equal to that of the full Court. 
 ""1 rule nisi had expired and could only have 
 wea revived by a motion in term, a Judge at 
 
 Aho, that the allowance or disallowance of the 
 certiornri was entirely a matter within the dis- 
 
 ^^amltcis having no power to deal with the ' cretion of the Court or Judge applied to, and, 
 'Ject;aml further, that there had been no j such discretion having been exercised, the Court 
 
 *»'«r of the want of service. 
 
 Jiloit V. liichardii, 1 R. & G., 203. 
 10 
 
 would not bo justified in over-ruling his order. 
 I Per Ritchie, J., that the application to the 
 
291 
 
 CERTIORARI. 
 
 292 
 
 full CVmrt should not be entertained unlesa it 
 were sliow u that tiie riglit of iippeal liad been 
 lost. 
 
 Alao, that the allowance or (lisallowance of 
 the writ was a matter of discretion from wliicli 
 there was no ai)i)eal. 
 
 1,1 >;■ Hire, '20 N. .S. R., (S R. &(;.), '2'M ; 
 8C. L. T., 44S. 
 
 4. Assessment amounting to more than 
 
 Sl.oO j)cr acre made by a Commissioner of dyke 
 was brought up by ar/iorari and ((Uasiied. 
 In n: Hisho), Dyh, 'JO N. S. R., (« R. &(!.), 
 
 O.'^ it •_'•):{ ; 
 8C. L. T., 44ti. 
 
 5. Asscssnient bronght up bj writ of— 
 
 An assessment of a vessel registered in tiie port 
 of Halifax and owned liy a trader resident at 
 Isaac's Harbor, in the County of (Juysboi'o", was i 
 made in the district of Isaac's Harbor for County 
 rates. 
 
 A rnle »/•.(' was made absolute to remove the | 
 assessment, and on a special ease the Court 
 decided that the vessel was not liable to be so 
 assessed. 
 
 Ill re Ejlic, Sinet, 3 R. & G., .S80 ; 
 3C. L. T., 44. 
 
 6. Attachment granled for refusal to 
 
 obey writ of— Matter treated as already in 
 Court, although writ not returned —Intitul- 
 ing affidavits- A writ of arliorari having lieen 
 issue 1 out of the Supreme Court, to tlie Chief 
 Conmiissioner of Mines, tlie Comndssioner de- 
 clined returning or obeying the writ, for reasons 
 which the Court held iiisutlieient, and a rule uiii 
 for an attachment was thereupim granted. 
 
 The rule was opposed on two grounds, the 
 second being that tlie allidavits upon which the 
 rule was gianted were intituled in the cause. 
 
 //</(/, Wilkms, .)., di.'<s,iili,iii, that although 
 the writ »i orliomri had not yet lieen returned, 
 the matter was already in the Court, and there- 
 fore the afiidavits were riglitfidly intituled. 
 In re Clyde Coal and Miniii'j Company, 
 
 '2N. S. D.,r)6. 
 
 7. Ball— Defect In— Allowance of writ 
 
 affected by right of appeal, or want of jurisdic- 
 tion to inquire into facts anew -Order for muat 
 show jurisdiction— Imperial Act, 13 Geo. II., 
 c. 18, whether applicable to this Province — 
 Queen v. McFadden, 6 R. & G., 426, reviewed 
 — A writ of cirliorari was issued on bail taken, 
 not as j)re8eribed by the Statute, " to respond 
 the judgment," but upon a condition forbidden 
 by the statute, viz., that the rendering of the 
 body should exonerate the bail. 
 
 If(/d, that the writ ought not to have lietii 
 issued. 
 
 Ifi/il,j'iirlhi r, thut the writ slionid not liave 
 been allowed, as there was a right of a))|Kal ex- 
 isting in the Conrl l)elow, of which the (leteiiclant 
 had not availeil himself, or accounted f(ir iiis 
 failure to do so ; and also as tlie sumniaiy juris- 
 diction of the Supreme Court had lieen lakin 
 away, so tliat the facts couhl not be iiii|uiieil 
 into anew oi' tiie case satisfactorily disposed of. 
 
 .l/.vo, tiiat the onler allowing tlie nrtiomri 
 was bad, as not showing on the face (jf it tlie 
 facts necessary to give jurisdiction to tlie Com- 
 missioner by whom it was granted, and that tlie 
 olijection was suliicieiitly taken in the notice of 
 motion to set aside the writ when it slal>il that 
 the order for the writ did not show on the fate 
 of it that tiie Commissioner who graiiteil the 
 same had jurisilictioii to grant the same. 
 
 (Juaeri , whether tlie Imperial Act, ]'.\ (leo. '.', 
 cap. 18, applies to this Province. 
 
 (^hiirn v. Mi-Faildin, (J R. & G., 4'2fi, leviewed. 
 Wallaee v. King, 'M X. S. R., (8 R. & (i.), -.'S.-J; 
 
 8 C. L. T., 419. 
 
 8. Bond Instead of bail piece lllcd-Writ 
 
 quashed — Re-arrest of defendant after writ 
 quashed — Cirliorari to remove a convictidu l"i' 
 violation of the License Laws in the City uf 
 Halifax (luashed on the ground that a Ikju.I IkuI 
 been tiled instead of bail. 
 
 The defendant having been released en the 
 issue of the nrliorari, and re-airested on the 
 original warrant after the n rliomrl was ([uaslieil, 
 the Court granted a rule under the Statute "Of 
 Securing the Liberty of theSulijcct" uu terms 
 that defendant shouhl bring no action. 
 
 The City of Halifax v. Leake, "2 R. & (i., 141 
 
 9. Bond on appeal or on Issuing writ of 
 
 certiorari — Action on — Indorsing name of 
 relator on writ in action — 4th R. S., e. la 
 ss. 25, 26 and 39.— In an action on a hoiid to 
 the (^lecn under 4tli R. S., c. 75, s. l'."), an at- 
 torney was named on the writ, but it was not 
 shown at whose instance or for whose advantage 
 the action was brought. The Court passed an 
 order staying the action until plaint it! "sattorntv 
 should indorse on the writ the name of the 
 Clerk of the License or the other person at 
 whose in.stance the action was broiiglit, tores 
 pond the judgment. 
 
 Queen V. MeKareher, 3 K. & C, 33/. 
 
 Proceedings similarly stayed in Qmoi v. Cartir, 
 but the correctness of the order staying quM- 
 
 tioned. „ u o on: 
 
 Qwttn v. Garttr, I R. « l"'. *'' 
 
29.S 
 
 CERTIORARI. 
 
 294 
 
 10. Bond Oil certiorari- Indorsing name! ihM, timt in making tlio conviction tiie sti- 
 
 of relator -4th R. S., c. 75, ss. 25, 26 and 39— i pcn.Iiary Magistrate was exercising tlie fnnctions 
 111 iiii aitidii on a nrtioruri lioml, nnder 4tli ! of a .liistice of tlie Peace, and cons^iuently tiiat 
 R. S.. c. 7."), "t)f Licenses," tile defendant j tlie Imperial Act, 13 Ceo. 11., c. IS, sec. 5, 
 oljtaiikd an order /((W for the indorsation on limiting the granting of the writ of r.jV /omW to 
 tho writ of the name of a person to he six months after the date of the conviction 
 
 liable for costs, under the practice estahlislied 
 liy V'"'" V- .Vr/uirr/iir, 3 R. & C, .S.37. I'.e- 
 fnio the rule was made alisohite the ])laintiti' 
 iiKiorsKJ tiie name of the Clerk of License and 
 gave tlic defendant notice. A rule was after- 
 wanls ohtained making the rule ///>/ alisohite 
 ami ^.'iviiig tiie defendant ten days to plead. 
 Piaiiitiir. after the rule w.is made ahsidnte, in- 
 
 applied. The motion was refused with costs, 
 and a jimci ih nito ordered. 
 ''>io''y> •'■> 'li'"''" iifiii'J. 
 
 'Jiiuii V. MiFaddtn, 6 R. & (J., 4'.'6 ; 
 6C. L. T., .-).•«. 
 
 13. Canada Temperance Act, 1818-Con. 
 
 (loisfd tlie name of tlie Cleik of License a second I viction for third offence made in absence of 
 time, Imt did not give the defemlaiit notice of defendant set aside -Procedure under Hawea 
 till' sfcdiid indorsation, ami. after the exi)iration v. Hart confirmed Defendant was convicted 
 of tell ilays, marked a iletault forwant of a plea. , i" her ahsence of a third otl'eiice against the 
 II-I(I. that the default had heen regularly Canada 'remperance Act, 187H, and was sent- 
 miukfiL 
 
 enceil to imprisonment for sixty days in tho 
 county jail at Annapolis, and to pay the sum 
 of .>«il.;{.'{ costs to the prosecutor, and in default 
 to 1p(! imprisoned for a further term of lifteen 
 <lays. 
 
 llil'l, that the Magistrate had exceeded his 
 
 ji'.-isdiction in making the conviction in the 
 
 iruig tlie pendency of an W/o,vov to, emove; ahsence of the defendant, and thai the convic- 
 
 a.onvution ot the defendant for selling intoxi- tfon must therefore he -set aside. 
 
 eating liquors contrary to law, defendant was Aho. that under the Caim.laT. 
 
 again convicted and fined .S'_>>_>.S(I, inclusive of 
 
 Qmn-i . as to the practice estahlislied l.y 
 Qntiji V. Mi-K(nr.h, r, .'{ R. it ('., xr,. 
 
 •imni V. C<ir/,r, 1 R. i*t ()., ;{()7. 
 
 11. Bond on Is.suins writ of certiorari- 
 
 4tli K. S., c. 75 - Condition -Proof of breaches 
 
 -Duri 
 
 costs, whieh was reduced helow si.'(l hy a part 
 
 piiyiiiint, and action was brought in the County 
 
 Conit for the balance <m a bond conditioned section takiii« the 
 
 that (iiteiidaiit woiiM not sell during tlie pen- 
 
 iliiay of tlie appeal from the first convicticm. 
 
 There was no evidence that he had sold Honor 
 
 'emperance Act, 
 sec. l(»7, it is imperative upon the Magistrate to 
 
 adopt the procedure specially made for cases 
 under the Act, the express provisions in that 
 matter <mt of the ordinary 
 course laid down in the Summary Convictions 
 Act. 
 
 /'"■ 'ri'wnshend, J.— The decision in [fames 
 IKMSonally, but it appeare.l that li.pior had been v. Hnr>, (i R. & (J., 4-.', settles the right of tho 
 M.Moi, the premises by a woman who was not C.mrt on a motion to .,uash a c.mviction to 
 sho«i, to he defeiulant's wife, child or servant. i,„,,ii, ., i„to the matter so far as to be satisfied 
 ^/".tliat the breach of the condition of the whether the Court beh.w had jurisdiction or 
 boml had not been proved. „„t_ 
 
 <.'""■/■'. whether even a sale proved to iiave i Queen v. Saler, 20 N. S. R., (8 R. & <i.), 206 ; 
 iKen niade hy a wife, child or servant would bo I 8 C L T 380 
 
 a bleach of the condition. I ...... 
 
 \h>f(n V. MrKor.k, 1 R. & C., 488. ' 
 
 .., I 14. Canada Temperance Act, 1818 — No 
 
 1^. I f rllorarl -Must be applied for within ' appeal from refusal of Judge to grant cn-tioraH 
 M months trom eonviction -Imperial Act, 13 toremove conviction under the Act~-Proceed- 
 
 b f 1 '^ ^^' ^^^' ^ '~ ^"^^^ ~ Procedendo ings held to be of a criminal nature— Defen.lant 
 - etendant was cimvicted before the Stipen- ^ having been convicted of selling intoxicating 
 l^wry .\n,gist,ate for Cornwallis Police District j li(,uor contrary to the provisions of the Canada 
 [*'":'""" "^ *''« <-''i'>'i<la Temperance Act, Temperance Act, 1878, application was ma.le to 
 
 iS, and the conviction having been brought ' a Judge of the .Supreme Court at Chambers for 
 
 P >> crlmrari the Court was moved to set a writ of cirtiorari to remove the proceedings 
 j^convKtioi, aside .,n the ground that tiie Act j into the Supremo Court. The application 
 fonr." ,"'/""'" .^* '"^" '*' ^^■'^'' """*'^- '^"'"^' "'■''*•''■ having been refused defendant appealed. 
 
 e m-Uomri wa» not moved for until after 
 '6 lapse of twenty-two months from tho date 
 <" the conviction. 
 
 Hirld, that the matter was a criminal one, from 
 which there was no appeal. 
 The appeal having been dismissed on a prcli- 
 
295 
 
 CERTIORARI. 
 
 296 
 
 miliary objection, of wliioli no notice iiail l)een rcail as if the wonls "for the ofTence cliarycj" 
 given, tlie order was made witiiout costs. were atldcd. 
 
 ',>((( tH V. Citlhoini it a/., 'JO N. .S. H., Tju' niagislratc making tlie conviction having 
 
 (8 R. & (1.), .S!).") ; imposed two montlis' inipri-sonmeiit in dcfiuilt 
 9 C. L. T., 62. of distress, 
 
 ][i/(l, tlial ids jurisdiction, so far as rclatoil to 
 15. Canada Temperance Act -COUntyCOUrt *''« f''»l '""l conviction, ceased when hv ma.Ie 
 prohibited from proceeding with <v rllornri to tl>« conviction and imposed tiie penalty, iiiul 
 remove conviction under Canada Temperance tluit he ha.l no antliority at that time to lix any 
 Act -Reference by Judge at Chambers to,t«nn of imprisonment. After tlio conviction 
 Court /// 'miir~A conviction under the Canada application may be made to tlie same or to any 
 TeniiKiance Act was removed to the County : otlier Justice in the same territorial division for 
 Court by nr/lorari. The prosecutor applied to 'i warrant of distress, whereupon the Justice 
 a Judge of the .Sujjreme Court at Cliambeis for apjilied to will consider the ctlcct of the warrant 
 a writ of prohibition to juohibit the County upo" t'le defendant and his family, but if lie 
 Court from further proceeding on the r<rliomri, \ decide to grant tlie warrant, can impose no 
 aiidtlieorder((/.s/forthewritof prohibition was term of inipri.sonment until after the rctuin is 
 by a .Ju<lge prcsi.ling at Ciiambers referred to ""I'i^ '""I l"" knows the amount remaining 
 theCourt (h/otw. Defendant's counsel objected unpai.l. /.'<;//«« v. Jlyde, 9 E. C. L. .V: K. K. 
 that thc.ludge at Chambers couhl not so refer 30.") distinguisiied. 
 the application. i V'""^'' ^'- J'orlu; -JO X. .S. R., (8 R. & (i.), Xf2; 
 
 Ht/il, that the writ of prohibition must be | 
 allowed, )>ut witiiout costs. 
 Qiinii V. O'X'i/, 20 N. S. R., (8 R. & (i.), 530. 
 
 J 
 
 9 C. L. r. 
 
 0/. 
 
 17. Canada Temperance Act -Excess of 
 
 i jurisdiction — First ofl'ence — Defemlaiii was 
 .. _ . _ , . J01.0 n convicted of a Hrst otl'ence under the Canada 
 
 16. Canada Temperance Act, 18 J8 -Pen. ,,, ».,«-„ w i * 
 
 ,, . n ii . 11 • 1 1 » i 1 enii)erance Act, 18/8, and tor such ottence was 
 
 altv in excess of that authorized by Act— ,. , , , , ,.„ , , 
 
 ,, ,. . , ... /-, 1 i- adiuilgeil to iiay tlie sum ot Jj.iO and costs, anil 
 
 Motion to amend conviction — Construction,..' .,, w,l 
 
 ,,_ ■, -..r^ T . 1-11. ,,' it tlie said several sums were not liaid torthwith 
 
 of sees. 117 and 118— Imprisonment in default ^, , ,, , i ■ i i i- . , i r 
 
 „,., T -ijiir./-. TT 10 i) that the same be levied bv distress anil sale of 
 
 of distress— Imperial Act 13 Geo. II., c. 18, not 
 
 in force here — Objection by substantive motion 
 
 — Defendant was convicted for unlawfully selling 
 
 intoxicating liipior contrary to the provisions of 
 
 the Canada Temiierance Act, 1878, and adjudged ,, , , ,• , i- . i r .i 
 
 , . ., , ,, - all costs and charges ot such distress ana ot tne 
 
 for such otJence to forfeit and pay the sum ot ."^ ,.,,,.. 
 
 §100, and also to pay the prosecutor S7.19 for 
 
 his costs, and if such sums were not paid cm or 
 
 before a day appointcil, it was ordered that the 
 
 same should be levied l)y distress of the goods 
 
 f 
 the goods and chattels of defendant, and in de- 
 fault of sutKcicnt distress that the defendant be 
 imprisoned in the common jail for tlie space of 
 three months, unless the said several sums and 
 all costs and charges of such distress and of tlie 
 commitment and cimveyiiig of the defeiulant to 
 jail be .sooner jiaid. 
 
 //(■/(/, that the conviction should not have 
 gone further than to impose the tine and costs, 
 
 , , , , , , , , , , . ,0*1. t leaving suliseiiiient iiroceediiigs in the matter 
 and chattels of llie defendant, and in default of ■ * , ' ,. '. ,° ,, 
 
 , 1, , r 1 . 1 1 1 1 • , for a further application to the same or another 
 
 distress that the defendant should be imprisoned ; ' ' 
 
 for the sjiace of two months, unless such sums 
 were sooner paid. 
 
 Held, that the conviction, if for a first offence, 
 M'as bad on the ground that the penalty imposed 
 was in excess of that authorized by the Act, and 
 if for a second offence, on tlie ground that it >vas 
 made in the absence of defendant and without 
 notice. 
 
 A motion having been made to amend the 
 conviction under the Act, sections 117 and 118, 
 by reducing the amount of the fine, 
 
 Held, that the power of the Court to make 
 such aniendnieiit was tf.ken away by the words 
 of the section 117, " provided there is evidence 
 to prove aueli offence and not greater penalty is 
 imposed than is authorized by such Act." 
 
 Also, that tho latter part of sec. 117 must be 
 
 Justice. 
 
 (,>»«( re, whether imprisonment could he awar- 
 ! (led ill such a case for a first olFence. 
 
 (imen v. On; 'JO N. ,S. R., (8 R. & <i.), 4'.'6; 
 
 9C. L. T.,119, 
 
 18. Certiorari -No steps witbtn a year- 
 Rule absolute in the first instance to (jiiash li 
 i-erliorari on the ground that no steps had been 
 taken within a year. 
 
 Qwtn V. RineH, 5 R. & G., 8/. 
 
 19. Certiorari -Return day-None In writ 
 
 of ceWi'omn— Writ of certiorari quashed ami 
 in-oc.edendo awarded where there was no return 
 day mentioned in tho writ. 
 
 Devem v. Oavaza, 4 R. & G., loi' 
 
297 
 
 CERTIORARI. 
 
 298 
 
 20. Costs on certiorari refused -Grounds having any jn.licial functions to perform, and a 
 of refusal— Rule to 4iiasi> ci c^iorrtri made at)so- claim to exercise tlie othce of School Trustee 
 lute ii-liltiiii/ rox/x, on tlie ground that plaintiH"s cannot, tiierefore, he tested by this writ. 
 
 liLilit lo a cirfiomri had been uplield in point of Quashed with costs. 
 
 liiw, liut tliat tlie atKdavit on which it was In re AnicMinent of John Cameron , 
 
 graiitfil (lid not disclose sutlicient grounds. 2 R. & <i., 177. 
 
 Ill ri: Assc.'i.smeiit of Bunk of X. S., „, m ^. « ,^ n ^ it r,% 
 
 Vk &c .s' Direction of writ— Costs— New Glas- 
 
 ■'■"■ gow— No power to establish Court of Ai)peal 
 
 21. Costs Included in conviction under *"'^ Revision -Stock of companies not doing 
 Canada Temperance Act, 1878- Conviction business in the town held by parties in the 
 (,iia.shfd-I)cfcuduut was convicted for selling town-The act incorporating the Town of New 
 intnxioiiting li(iuors contrary to the pr(.visions '•lii^'g-'w >-'mpowered the corporation to vote, 
 of tlu' ("ana.Ia Temperance Act, 1S78, and ml- "*'*'^''*-'' *-'"""*' '•fceivo, appropriate, and pay the 
 jiulniMl to pay the sun) of .*,-.(), to be paid and '"""eys required for poor rates and all other 
 .pplica according to law, also to jiay tlie infor- '''^f^'*'' ""'' fonfci-re.l upon the corporation all the 
 inaiit tiic sum of .•?(). U costs; ami if such sums I*""'''** tlif'otoforc vested in the .Sessions, (! rand 
 ucrc M.it i)aid forthwith that the same be levied •'"'">' '^'"^ '''"«" Meetings, with power to make 
 l,v aisiicss and sale of defendant's goo.ls, and in ''J-lii^s substituting assessment in lieu of statute 
 .Idaiih (.f distress that defendant be iinpiisoned ''''""'' f^"'' ^o make all rules necessary for the 
 in tiic common jail for the space of .SO days, ^^'wvting and conduct of the police and municipal 
 imkss the sums and charges of the distress and *-'"'"'* "^ ^he town, an.l for regulating the mode 
 
 cmnmitmcnt, if any, were sooner paid. 
 
 of assessment ami levying the same, and gene- 
 
 gr'jwiid for a ri rfiomri. 
 
 I'' r W'eatherbe, J.,that the conviction was bad. 
 
 ',"'•'"'', whetlier under the practice the writ 
 of r, ri iorari siiould not have lieen allowe<l in the 
 first i.istance without any rule nisi. 
 
 HJil, i„r Ritchie, .1., that there was suffioient '■"">' ^<"' '^" liurpo.ses connected with or aflccting 
 
 the internal management or government of the 
 town. 
 
 ITilil, that the corporation couhl not, under 
 these provisions, establish a Court of x\])i)eal 
 aii<l Revision, with reference to assessments, 
 
 V""" V. Wiird, -JO X. S. R., (8 R. & (i.), 108. ^*"^'' P"^^'^'' t<> administer oaths. 
 
 Under a by-law of the Town of Xew (ilasgow, 
 22. County Court issuing writ of— Notice IHoviding tliat all real and per.sonal ])roperty in 
 of application for writ— 13 Geo. II., c. 18, s. ."» — , tlie town should be liable to taxation, 
 A writ (if CI r/iorari to remove a prosecution; //</(/, that insiu-aucc and bank stocks fiwned 
 for «'lliiig li(|uor contrary to the provisions of ' by residents of the town, in companies not doing 
 the I'ldviucial License Act, 4th R. S., e. 75, , '"'S'"<-'ss in the town, were not liable to asse.ss- 
 from the Magistrates' Court into the County , ment. 
 
 I'oiut. was (|uashed by a Judge of the latter Where the assessment roll was amended by 
 Court (111 the grounds, 1st, that liie parties ap- the Court of Revision, a committee chosen from 
 plyiiij,' for the writ did not give the six days' the Council, pursuant to a by-law, for the ]!iir- 
 notiic (if tluir intention to the Justices, reiiuired l>osc of reviewing tlie assessment, and the action 
 liy l.'Hico. II., c. 18, s. .') ; and, •Jnd, because ; of the Court of Revision was contirmed by the 
 tiny iliit iKit swear that they did not .sell li(iuor ' Council. 
 
 cniitfai'y to law. ffi/il, that a writ of (•'■?-//o/Y(r/, addressed to 
 
 .\ii iippcal from the decision of the County ] the Court of Revision and the Town Clerk, 
 Court , I udgt- was dismissed with costs. I could be sustain(!d, though otherwise if it had 
 
 McDonald v. h'ontin, 7 R. & (i., "i.") ; i been addressed only to the Court of Revision. 
 
 7 C. li. T., .V2. /*'(• .Sir William Young, C. J. — As sonu ilonht 
 rests upon the firm, the rule nisi, to (juash the 
 assessment, kc, will be made absolute irilhout 
 costs, 
 
 Fraser ib licit v. Town of X( n' Glasijoic, 
 
 1 R. .S:(;., 'JoO. 
 
 23. Delay in moving to quasli writ - 
 
 Costs Rule absolute granted to (piash a ci rtio- 
 rni-i, !iin witlumt costs, six years having elapsed 
 K'fon' iiidtion made. 
 
 7'/it City of Ilaliftx v. Hartlitiid, 
 
 •2 R. .& (i., 116. 
 
 24. Direction of writ to parties liaving 
 
 10 judicial duties to perform— School Trustee 
 -Costs— It is a fatal objection to a writ of 
 nrtiorari that it is not addressed to parties 
 
 '26. Dom. Acts 1873, c. 12», ss. 53 & 116 - 
 
 Sections Xi & 11(5 of Chapter I'Ji), Dominion 
 Acts of 1873, do not take away the jurisdic- 
 tion of the Supreme C^ourt by way of certiorari, 
 IlawM V. llart, '2 R. &, (J., 427 ; 
 2 0. L. T., 312. 
 
299 
 
 CERTIORARI. 
 
 300 
 
 27. Evidence Power to look al CVUlCnce, ' expressly liel.l tlmt the only pmpo.si' foi- which 
 when sent up, to determine jurisdkLion— Con- I you could look at it was to seu wliutiur tlieie 
 viction quashed — Practice — Dofiiulanl was was any evideiioo. 
 
 convicted licfore the Stipendiary Magistrate for 
 the Police District of Yaruioiitli of having un. 
 lawfully sold intoxicating li(|U<)r contrary to the 
 provisions of the Canada Temperance Act, 187S. 
 A writ of ,■! rtiofdri having issued, tlic Magis- 
 trate sent up the inin\itcs of the cviilcncc talvcn 
 before him as |)art of his retiu'ii, instead of ic- 
 turniiig tile facts. 
 
 Vhm« v. Lyo)i><, 5 K. i^ <;., iui, 
 
 30. Certiorari - Finality of Magistrale's 
 
 judgment — Power to review— No evidence- 
 Jurisdiction limited as to class of persona- 
 Collateral fact necessary to jurisdiction — 
 I'laintilV contracted with one Feltmate. wiio 
 jiiofcssed to he the owner of a vessel, to sail her 
 
 //</'/, following //am s v. Hurl, ti R. & O., fj, as master at a stijiulated rate of wages. After 
 that tlie evidence lieingliefore thcCourt itmigiit the la])se of six months, Feltmate, who had up 
 
 be looked at to iletermine the (juestion of juiis- 
 diction. 
 
 It appeared from tiic minutes of evidence that 
 defendant, who was kcept'r of an iiotel oi' lioard- 
 ing house, had gone out and purciiasi'd or pio- 
 
 to tliat time been on hoard, left tiic sliip. ami 
 plaintiH' discovered tiiat he was not the owner, 
 the possession of tlie sin'p iiaving lieen deiiiaiideil 
 by tlie ihfentlant, the real owner. I'liiiutilf 
 tlien sued defendant for wages as master, before 
 
 cured li(|Uor for her boarders with money given ; the .^Stipendiary Magistrate, under the CanailiiUi 
 
 Statutes of IST.S, c. |-2!t, ss. ,V_» and .')!t, wliith 
 enable a master to sue for wages <lue iiim. nut 
 exceeding .S'ilM). 
 
 H<lil, that tiic .Sti])endiary had no jurisdie- 
 tion, ami that tlie judgiiicnt could be reviewed 
 on ri rliorriri. McDonald, C. .]., and Higby, J., 
 (/I.t.<i nfiii;/. 
 
 l'( )• 'riiompson, J., and .Smith, J. — That there 
 
 her for tiiat purpose, acting merely as a messen- 
 ger and without making any jirolit. 
 
 JIilil, that the evidence was not snilicient to 
 supjiort the conviction. 
 
 Qiiiiin, whether jioints which had been ilis- 
 cussed on the a|)plicatioii for thew ] it of <> r/iomri 
 could be brought before tlie Court a second time 
 on the motion to "[iiasli tlie conviction. 
 
 (Jim II \.M<J)oii(i/il, 7 K. .V (i., 3.S(i; i was no evidence of a contract upon which the 
 
 7 ( . L. T., .•!7(). 
 
 28. Evidence Right to look at where re- 
 turned with writ — I'rocecdings were taken 
 before the < 'ommissioiier of I'ublic Works and 
 Minos to forfeit certain gold mining areas. 
 They were removed by m-/ inrnri nni\ a rule was 
 taken to set aside the forfeituie. 
 
 The juidimiiiary jioinl was taken that on 
 rertiiirnri the niinutes of evidence taken by the 
 Magistrate cannot be received. An aliidavil 
 may be piddiued to shew what was (iroveil 
 before the Magistrate. 
 
 /'<rRigby, ,]., wliere tlie Statute, in a case 
 like this, says that the Magistrate shall take 
 evidence, and he docs so and returns it to this 
 Conit. 1 think we can look at it. 
 
 ( 'oiinsel contended that where a conviction is 
 valiil on its fac<^ you cannot go liehind it and 
 look at the evidence. 
 
 J'lr McDonald, C. .1., that is new to me. 
 
 /'i r Weatliei lie, .1., tiie practice is the other 
 way. 
 
 Qnnii V. A7,-.';, 4 R. k (i., l.SO. 
 
 action could be based. 
 
 /'' /• Weatlierbc, .J. — Tiial the ca.st caiiu with- 
 in the i)riiiciples as to a jurisdiction given In try 
 cases between ])eisons of a s])ecitied class or 
 classes, and the Magistrate had no evideiii'c of 
 either of the two classes suing and beiu.' ■^ueil 
 res])ectively in this case. 
 
 In this case there is a most elaborate iliseus- 
 
 sion of the eases in which fi rtinrnri will lie to 
 
 reiaove proceedings before inferior courts where 
 
 the derision of such courts is mailc liiuil hy 
 
 statute. 
 
 //(("■,., V. IJurt. () 11. \ (;.,4i; 
 
 (iC. L. T,. 1411. 
 
 31. (rrounds taken In rule to (|uash writ 
 
 — Party confined to these - Notice to Justice 
 where acting as a Statutory Court Atiidavit 
 required before issue of writ Acts 1879, e. 12, 
 s. 1. N. S — Distiualitication of Magistrate 
 through interest The defendant was convicted 
 licfore F. \. Laurence. .Stiiicndiary M igistiate, 
 prcsiiling in the Town ( ourt of Truro, of selling' 
 intoxicating liquors contrary to law. The iSli- 
 
 ])eudiary .Magistrate was a ratepayer of the 
 29. Evidence - Kight to look at on town, ami received a lixe.l salary as stipendiary, 
 
 certiorari — Counsel contended that ({Uestions as payable out of the funds of the town, to which 
 
 to the sulficiency of the evidence below can be half the penalty imjKised became payable. 
 
 raised on ni/inniri. ', Ihld, that the Magistrate was disqualitied by 
 
 /'( /• Rigby, d. — In Tht Colonial liaiik of Auk- : interest from acting in the matter. 
 
 fralana v. Willau, L. R., 5 P. C., 417, it was i Rut see now .')th R. S., c. 109. 
 
301 
 
 CERTIORARI. 
 
 302 
 
 Tlie giDiiiiil was taken in tlie rnlc to (juasli 33. Improvidontly !S8UC(1 -Appeal not CX- 
 
 \hei-(rtlnrnri that the l)on(l tiled was irre<,'uhir I hausted — 3rd R. S., c. 45, s. 67 — Assessment — 
 ami liml ill '^iili^tanfe and form. Cir/iorari — Wiiero every material fact in the 
 
 ///(/, tliiit under tliis ground the objection afHdavit upon which a certiorari was founded 
 coulil not lie taken that a bail-piece should have I was negatived iji the afUdavit on the other side, 
 lit'cn iilccl instead of a hond. 
 
 The i< rliiirari was attacked on the gromul 
 tliiit nil notioe had heen given to the Magistrate assessment are sinijjly matters of detail, the 
 as i(i|iiiri'il liy the Iu\perial Statutes, I.'! (ieo. II., j aj)peal should he primarily to the Court of 
 c. IS, liut no such grouiul was taken in the rule, j .Sessions, and re.sort should not be had to the 
 
 //'/(/, tiiiit this gi'oinid could not he taken at [ .Supreme Court hy <•< rtiornri in the fir.st instance. 
 tilt' argiMiR'Mt. 
 
 iinni i-i . whether the rule re(|uiring notice ap- 
 
 Hilil, that the orh'orari must he (luasheil. 
 Where the grounds of an appeal from an 
 
 The Court of Sessions has power to set aside 
 I a whole assessment where it manifestly appears 
 plieil to tills case, where the.lustice acted as a ' that it has heen irregularly and therefore illeg- 
 
 speuial Statutory Court and not simply as a 
 Justice (if the Peace. i 
 
 Tlie ground was also taken that the atKdavit i 
 rci|iiiiTil liy e. 1'2 of the Acts of l.S7!> (stating 
 that tlic ikfeudant had not sold intoxicating 
 liiHinrs contrary to law, as charged in the sum- ' 
 iiiHiis), hail not heen made, 
 
 //</'/, that the Statute did not apply where 
 the piiicccilings were rorfuii iioii jm/in-. 
 
 Jlilil,/iir/h< r, that in cases such as the pre- 
 sent, nriiorrtri would lie after judgment, not- 
 withstaiiiling the general rule that in civil cases 
 i-'i-iini-iiri will not lie nfter judgment. 
 
 Ih I'l.l'arfh' /•, over-ruling^ '/v(»7r // v. .1 xilirxon. 
 
 ally made. 
 I„ r< -l.ss 
 
 '<m<)if School Itatc, Section 4-\ 
 
 Auiiijotiish, ;i X. S. 1)., \-2'2. 
 
 34. Improvidciitly issued - .Ippeal not 
 
 taken -4th R. S., c. 21, s. 61 -School— Powers 
 of Trustees to call special meeting -Section 34, 
 suh-section S, of the cliaptcr of I'ulilic Instruc- 
 tion, 4lh R. .S., cap. '.\'l, provided that it should 
 he the duty of the trustees to call a special 
 meeting of the section, due notice being given 
 by the .school or otherwise, for the i)iiri)ose of, 
 itc, and for any othei' necessaiy purpose. 
 X. S. I)., .'{S.-y, that it is no objection to the 1 ''Section .S7 leiiuired the trustees, upon the re- 
 writ of a W/«m/7 that an appeal also would lie. <inisition of a majority of the ratepayers, to 
 7V/7'"' V. Miir/'lii/. ."{ 11. & <;., 173. convene a sjjecial meeting of the ratepayers for 
 
 the ])urpose of voting money or adding to any 
 32. Imperial Act, 13 Geo. II., C. 18, not in amount previously voted. At the amuial meet- 
 force in this Province -Objection to '/(V/ocnic/ on ing of School Section "29 the money reiiuired for 
 
 ground of lateness -Must be taken by substan 
 tive motion -The ground having been taken on 
 thu part of the ])rosecutioii that the writ of 
 ei rlinrnri im which the motion to iiiiash the coii- 
 Vktiim was based, had not been sued out within 
 six niuntlis after the date of the conviction, as 
 ft'i|uhvilliy the Kngllsh Statute I.Stieo. II., c. IS. 
 H'I'I, that the .Statute is not in force in this 
 I'rnviiicc. nut being obviously a|)plicalile and 
 luressiry tu our condition, ami the Legislature 
 
 si'IkioIs was not voted, and the meeting Inst ructed 
 the trustees to call another meeting for the [lur- 
 po^e, which they did, but acted under the im- 
 prtssion that the niecting must be called under 
 a re(|iiisitlon, as ])rovideil by sec. .S7. The 
 matter was brought up by c rtiornri, and a ride 
 ;//</ taken to set aside the assessment, the afti- 
 davits on both sides being drawn on the assump- 
 tion that the meeting cotlld oidy be called under 
 
 section .S7, rei|nliing a iei|ulsltlon fi'om a niajor- 
 ot this I'ruvince, In legislating u])on the .subject ity of ratepayer.". 
 
 m ficfitiran, having adopted the ])rovisions of Ifilil. that no sucli ri'i(uisitlon was necessary, 
 many Hngllsh Statutes, relating to (v/V/om;-/, that the trustees could call the meeting of their 
 ivhilu iiniitling to re-enact the jjiovisions of the | own niotiou, and that, whether the ie(|Uisition 
 -Vet In i|uestion. When the Local Legislature was signed bj' a inajority of ratepayers or not, 
 lias legislated upon any particular subject, rela- the action of the meeting was legal and valid, 
 tivo to which an English statute had previously 
 wistcil, the Provincial ami not the Kngllsh 
 statute iinist govern here. 
 
 •■!'■"). that the objection, if available, must the law which govei'us such cases. -1th R. S., 
 lie taken by a substantive motion to set aside c. .'?'2, s. t")4 provides that moneys voted, "in 
 'lit; writ, and not in opposition to a motion to default of ])ayment of the same,' shall be collec- 
 Viash the conviction. ted under and by virtue of 4tli K. S., e. 21. 
 
 CiiecH V. Porter, '20 N. S. R., (8 R. & (J.), ,S.V2 ; I That chajyter gives a remedy to the party ag- 
 
 9 C. L. T., 57. ; grieved by appeal to the Se.sslons, but provides, 
 
 Pir McDonald, .1., there is another view of 
 the ease which Is fatal to the a rtiornri. and 
 that is that it was not issued in accordance with 
 
803 
 
 CERTIORARI. 
 
 304 
 
 (e. 21, a. Ci'2), tliiit .such iippeal sliall not delay tlip J/i/il, tlmt tiie party taking out the writ Iwil 
 collection or recovery of tiie .sum a.s.-iessed upon a riglit to imv the same title in suhscciucut pro 
 tlu! appellant, The policy of the Statute is to ' ccediiigH in tiie Supreme Court. 
 
 enforce tlie innnediate payment of the ni<iuey 
 
 asses.sed in hotli cases, giving the appellant the taiiiiug tlie forfeiluie to tile tlieii' atlidavils (in ii 
 rigiit to have the money restored to him if he lie 
 impropi rly assessed. But in this case that Court. 
 polit'V and the plain meaning of tiu^ law aie 
 defeated, when, l>y issuing a writ of nr/iornri. 
 
 A rule was granted to compel the parties .sus. 
 lining tiie forfeiture to tile tlieii' atlidavils (in ii 
 day previous to the hearing, to he named hy tiie 
 
 Que II v. TiJiiii, 'J R. ct (;,, .'joj, 
 
 the collection of the money is stojiped liy a few 
 in iiumliers. The remedy liy removing cases of 
 assessment to tiiis Court by ctrl'mrari \n given 
 bye. 'Jl, s. (i7, but not at the time or in the 
 manner in which it is sought here. To my 
 ,nind it is clear that tiie parties who instituted 
 tiiesc proceeding.s should, if aggrieved, liave re- 
 sorted to the remedy of ajipeal given by c. ■_'!., 
 s. (il of 4th It. .S., " without jircjiidice to tlie 
 whole or any i)art of the assessment." 'i'iiis 
 view of the law, if I recollect ariglit, was talicn 
 by the Court in the case of a c* /■//«/■«;•/. In n 
 
 School Sn'i'irm 
 
 ;? X. .s. I)., i-_>-.>. 
 
 //( *•( Sriwol Srrlioii, Xo. .:U, .S R. i^ ("., --'07. 
 
 35. Intituling aflidavits, before return— i 
 
 EtTect of this and other acts — Writ sued out 
 for purpose of delay — After the tVuirt, witli 
 
 37. Jurisdiction or Commissioner to issue 
 
 i-(r/i<imri under Acts of 1882, cap. 10, must 
 be shown — ^A writ of rir/lornrl was issiuMJ to 
 remove a conviction undei' tlie Canada Tciiipei- 
 aiict^ Act. Tlie writ was allowed by a ('(iiniiiis- 
 sioiier, and it was not shown that there was no 
 .Supreme or County Court .Judge in the county. 
 (Acts of 1SS2. caj). 10, sec. •_'.) 
 
 //'/(/, that the writ must be set aside, as it 
 was not shown that the Coinmissioner had jnriii. 
 diction to i.ssue it. 
 
 /'</• McDoiiahl, C. .1., and Weatlu rhc. .1., 
 tiiat the indorsement "allowed, security liaving 
 been first given and tiled," was not sutHcioiit. 
 Corh,// V. O' /),//, 4R. & <;., U4, 
 
 38. Jurisdiction of Supreme Court to re- 
 
 full knowledge that a writ of nrflorari had not view proceedings of inferior Court, even where 
 been returned, received atiidavits on the part of those proceedings are declared final by Statute 
 plaintitT intituled in the cause and granted a rule —1st R. S., c. 89, s. 9— An enactment tlmt iiro- 
 lu'sl thereon, and defendant apjieared by counsel ceedings of an inferior Court shall be liiial, dn 
 and resisted the rule upon an athdavit of defen- 
 dant also intituled in the cause. 
 
 Hi III, that it was too late to rai.se the objec- 
 tion that tiie cause was not properly before the 
 Court and that tlie Court had no power to adju- 
 dicate thereon. 
 
 Pir DesHarres, .T. (who delivered the judgment 
 of the Court), when I tind that the writ remained 
 in the hands of the Magistrates, to whom it was 
 directed, for a whole year, without any efl'ort 
 
 not take away the jurisdiction of the Sii|iienie 
 Court to review their proceedings uiulcr a writ 
 of rirliorarl. 
 
 liarnahy it al. v. (lariUmr ct at., . lames. 'M. 
 
 1st R. S., C. 80, S. 0-" If any oversecis on 
 behalf of the township, or any otlicr iil'I.<oii, 
 shall feel aggrieved by any proceedings lunlui' 
 this chapter, such f)verseeis or person may ap- 
 peal to the next Sessions to be held for the 
 being made on the part of the defendant to have ^.„„„jy „.,,^,,.^ ^,,^ towiishii, is or the person 
 
 shall reside, and the Sessions shall hear ami 
 determine the same, and their order shall Me 
 final." 
 
 it returned, and that when sent to the olfice of 
 the I'lothonotary to be tiled without any return 
 upon it, no application was ever made to the 
 Court to enforce obedience to it, I think there 
 is great reason to presume that in suing out the 
 writ of etrtiorari, the object of defendant was 
 
 delay. • . . , ■ i- . 
 
 Nnml V. Flnrin, 2 N. S. D., 80. j "On I'm-tiorari of a conviction the iiituriiwtwn 
 
 I and warrant cannot be looked at to see tlwt an 
 offence has been committed. 
 
 Woodloi-k V. Dirkic, 6 R. & O., SO; 
 6C. L.T.,14i 
 
 39. Jurisdiction — Wiicrc not siiown on 
 
 conviction — Cannot look at information, <S:c., 
 
 36. Intituling affidavits Proceedings be* 
 
 fore Deputy Commissioner of Mines brought 
 up by certiorari — Filing affidavits — Proceedings 
 before the Deputy Commissioner of Mines to 
 forfeit certain mining areas were brought up by 
 certiorari. The parties applying for the for- 
 
 40. Magistrates disqualllled -Costs-Con- 
 viction for cruelty to animals (juaslied, one oi 
 
 feiture intituled the process below " The Queen ■ the Justices being the father of the coniplaiiw't' 
 V. Tohin." \ Costs in this case, which was brought before tlie 
 
305 
 
 CERTIORARI. 
 
 306 
 
 f'dtiif l>y rirfionirl, ix-fuscd against tlie Magis- 
 tniti'.-i, tint giiiiitud agaiii«t tliii coiiiplainant. 
 
 Ill rt D. Barry Hohnan, W 11, & C, 375. 
 
 4t. No certiorari Nhoiild issue in a civil 
 
 suit witliout a sufficient affidavit— Intituling 
 affidavit -Scope of writ— Appeal— Bail— 3rd 
 R. S., c. 75, s. 24, " the award of such Justices 
 shall be tinal and conclusive," not sufficient to 
 take away jurisdiction to grant writ of— No 
 ariiumri slioiild issue in a civil suit witliout an 
 iitKilavit showing sufficient grounds tlun'ofor in 
 tliL- I'stiiimtion of the Court oi'.ludge wlio grants 
 it. ami which may he controverted on other 
 iirtiiliivits on motion to set aside the ci-r/iorari. 
 The atliilavits for the writ shoidd not he intituled 
 ill the cause. The affidavits, after the cause is 
 liiinii;lit ti)), must he so intituled, 
 
 The writ of nr/lnrari has a wider scope in 
 this country tiian in England, and is often issued 
 lifter jiiilj,'iiient, and for small sums, hut should 
 not he issued when the statutalde right of appeal 
 hiis not hceii lost or defeated. It is not so res. 
 tricteil in this country as not to remove any- 
 other than judicial acts. Sufficient liail must he 
 given to respond the judgment to he finally 
 given in the cause ; and if the Commissioner 
 hiis any doulit as to the sufficiency of the hail, 
 he slioulil leiiuire them to justify. The con- 
 ehiiliiij; clause of section '24, chapter 7"), 3rd 
 R, S,, does not take away the jurisdiction of 
 this Court, 
 
 linriinliy it at. v. ilardiinr it a/., James 
 »ltiallirmed. 
 
 Craii-hy v. Aiiilcrioii, 1 N. S. 1)., 38."); 
 3 R. & C, .37. 
 
 42. No Jurisdiction in inferior Court — 
 
 Cirtiorari will not lie — The defendant, an in- 
 solvent (lehtor, under arrest on an execution 
 is.'iied out of the County C(mrt, was discharged 
 liy two Coininissioners under the Act of 1878, 
 chapter S, sec. 4. Under that sectitm the plain- 
 tiff iippealed to tlio .Judge of the County Court, 
 wliile |)iotesting against his jurisdiction. 
 
 //(/'/, that where there i.s no jnrisdicti(m in 
 the inferior Court, which was the plaintiff's 
 contention in this case, the whole proceedings 
 iire void iiiid nrtiorari will not lie. 
 
 O'Briin V. Walsh, '28 U. C. (,>. B., .394, fol- 
 lowed. 
 
 O'Connor v, Condon, 3 R. & G., 2. I 
 
 [Note.— In O'Connor v. Condon and Fletcher 
 V. Chixhohn no attempt seems tohaveheen nuide 
 to nuirk the distinction between the case where 
 nniomri is sought to remove proceedings from 
 an inferior Court, on the ground of want of 
 jurisdiction, in order to continue such proceed- 
 
 ings in the Court to which removed, and tlio 
 case where they are removed on the same ground 
 in order to ((uasli them. 
 
 O'/iritn v. MWi/i decides that the proceedings 
 cannot be removed to continue them where there 
 is no jurisdiction below. 
 
 O'Connor v. Condoniuul Flitchirw Chixholm, 
 decide that they cannot in such case be re- 
 moved to (plash tiieiii, and give as authority 
 O'lirim V. D'a/v/i.] 
 
 43. No Jnrisdlction in Inferior Court— 
 
 Certiorari not proper remedy — A debtor was 
 impri.soned on process issued out of the County 
 Court, and was brought before Coniiiiissiouers, 
 who ordered his discharge. An appeal wa.s 
 taken to a Court organized under the Act of 
 1880, c. 2, sec. Ill, but the order, though 
 made by the Clerk of the County Court, was 
 signed by him as Prothouotaiy. Tlie proceed- 
 ings were brought up by nrllorari, and a rule 
 taken to quash the rirtiorarl, on the ground, 
 among others, that as the S]n;cial Court had not 
 been regularly organized, it had no jui'isdiction, 
 and ri^rtiorari would not lie. 
 
 Hi III, that the niilornri must be (juashed. 
 
 Fktrhir V. ChUwlm, 3 R. & (i., 1 ; 
 2C. L. T., (iOO. 
 
 44. Not talien away by enactment tiiat 
 
 proceedings of Inferior Court shall be final— 
 An enactment that proceedings of an Inferior 
 Court shall be final, does not take away the 
 jurisdiction of tlie .Supreme Court to review 
 their proceedings under writ of n rtlorari. 
 
 Barnaliij it at. v. (lardini r it at., James, .306. 
 
 45. Notice— Certiorari quashed for want 
 
 of — Notice of motion for appeal from County 
 Court— How headed —Certiorari to remove 
 proceedings from M.agistrate's Court to Coun- 
 ty Court quashed for want of notice — Notices 
 of motion for appeal from the County Court 
 must be headed in that Court— A writ of co-- 
 tiorari to remove a prosecution for selling liquor 
 contrary to the provisions of the Provincial 
 License Act, from the Magistrate's Court into 
 the County Court, was quashed by a Judge of 
 the latter Court, on the grounds— 1st, that the 
 parties applying for the writ did not give the 
 six days' notice of their intention to the Justices 
 retjuired by 13 Geo. II., c. 18, s. 5; and '2nd, 
 because they did not swear that they did not 
 sell li(iuor contrary to law. 
 
 An appeal from the decision of the County 
 Court Judge was dismissed with costs. 
 
 McDonald v. Hmmn, 7 R. & G., 25. 
 
307 
 
 CERTIORARI. 
 
 308 
 
 4«. Objrrtlons that writ not directed to an ..nlcr for a writ of ,• r'iomn Xi> rciiiuv.' the 
 
 perdona exercising jurlicial funotions — Sub- ciuivie'tidii intci tlic Suprcint' Cimit. An order 
 
 stantive motion Riyht of appeal to be conai- liaving liccn iiiailc ii'fiisinj,' tlic ihiUt appllLMl fur 
 
 derecl when granting; writ- Ituli' to (piasli an witii uomis, 
 
 nsHossmuiit rcnutvcd into tlii' Siiprcnif Court l)y //«/</, that tlic oflfciicc licliig dearly of a crim- 
 
 rpr/iiiiftrl.' '\'\\r assissnicnt had liccn ajipcalcd inal nature, in tiie absence of any autlioiity 
 
 against on the ground that it \Nas too high rela- aiithori/.ing tho.liidge to impose costs, or of any 
 
 tively to otiicrs, to the Court jirovidcd for by liail or recognizance to ]>ay thcni, the dcfendiuit.i 
 
 sec. 1(1 of tlu' by-laws of the Town of Windsor, could not be mailc to ])ay tile prosecutor's costs 
 
 and by that Court conlirnicd. The assessment 
 was afterwards eonlirmed by the Town Council. 
 Counsel contended that this was not a case for 
 a writ of nrfiornri. because the matter com- 
 plaiiu'(l of did not arise from the exercise of 
 judicial finictions. 
 
 /Vc McDonald, . J.— .Should not that point lie 
 made the subject of a substantive motion ? 
 
 'I'he objection was raised that an appeal siiould 
 have been taken from the assessment of tiic 
 others as too low . 
 
 l'( r McDonald, d. — Can we review the assess- 
 ment of thf others, who have never been 
 brought before the Ciant of Appeal. 
 
 J'lr Weathcrbe. .1.-1 do not .see that tiic 
 
 of opposimi the order fo|- the fr/lornri. 
 
 An application wi's made to the Court to 
 rescind that portion of the or<ler relating to 
 costs, a similar application having been ])rcvi- 
 fUlsly made to the Judge and reftlsed. 
 
 //'/»/, that there being clearly no apjieal In 
 smdi a case, the coursi' ailo))tecl by the dcfcinl- 
 anis' ciumsel of a]>i)lying to the ( ourt to lesiiin! 
 was the proper one. 
 
 /;. /{In, •_>(» X. s. ]{. (s n. ki\.t, 4;t7; 
 
 !K'. L. T., llts. 
 
 50. Proceedings brought up by certiorari 
 
 to have veeogniz.ancea e.streated— DclViKliiit, 
 
 having been convicted in the I'olice Court ot uii 
 
 appeal is an estoppel. It is always proper to assault, cntere.l into a recognizance witii two 
 
 consider the fact of a right of appeal existing sureties to keel) the jieace. Afterwards lie wus 
 
 when granting a writ of nrliomri. convicted of a .second assaidt, and the Attonicy- 
 
 Rule discharged with costs. (ieneral had the proceedings brouglit up l.y 
 
 iriiUlhi^ V. To'ni of Wiiiir^ot; .S P.. & (!., •2:>i\ rn-liomri. wliereuiion, 
 
 Tiie Court, holding that the mode of pniLi'dl- 
 47. Objections to writ on ground of late- '■'« '» iM^-'land to estreat recognizances was 
 nesa— Must be taken by aubstantive motion- wholly inapplical>le|t() this Province, sauctioiial 
 Objccti./U that a writ of n rfioniri was too latL 
 should be taken on a substantive motion to 
 quash the writ. 
 
 In re Bi.-<hoi> J);/b,-20 X. S. K. (S R. & (;.),-2(i.S; 
 
 ,SC. L. T., 44(1. 
 Qmeii v. Povt't; '20 X. S. K. (S II & (i.), .S.V.' : 
 
 itC. L. T., .">:. 
 
 the course pursued in (Jmiii v. Thomii^on, - 
 
 Thorn., !l. 
 
 (^hK.in V. liroiru, 1 R. & (i., al. 
 
 51. Quashed -Insufllclcnt grounds and no 
 
 return—Right of appeal must be exhausted- 
 Writ of f(}iiorari ijuashed, the atlidavil on 
 which it was issued not disclosing sufliciL'iit 
 .__,_ ,. i.i.w 1 urounds and there bein'' no leturn to the writ. 
 
 48. Order for writ granted b) .Judge- «^' ' ,^ ,^ , .'?. , , , i .i,,t , 
 
 T , J , ^ • • 1- i 1 ;„ /'*• DesHarres, ,J. -We have ilcciclcd 111 at a 
 
 Indoraed by Commisaioner aa directed in ' , 
 
 ^ J . , --, ,. • ,1 parly h.iviug an oi)i)ortiniitv to appeal iinist 
 
 oraer — Order irregular — Crr/iomn (luasiied ' ■' „. ,.„,', 
 
 , ,, , . , , I 1 . 1 avail himself of It, anil, if he docs not, '■'W'oinci 
 
 when the order was granted by a .Judge and ' 
 
 the writ inilor.sed by a Commissioner, who was ^^ ' '" ^' 
 
 ,.,,.,, i' ., ■ , .1 V Tin: Joiru 0/ /'irfoH y. Jli'Doimiil, 
 
 directed in the order to indorse upon the writ • o u v. c 'iU 
 
 the amount for which bail was tiled, itc, t)ie ' 
 
 Court holding that the .Tudge had no power to 
 order a Coinmissioner to indorse the writ. 
 
 Dtniii.-'on V. Jack, •_> R. & (i., 17-' ; 
 1 C. L. T., Win. 
 
 .12. Reading papers returned with writ 
 
 when they are detached, but evidently had 
 been annexed to it— Counsel, in support of rule 
 iilii to (piash certain procc-' lings of the Se.s.'-ions 
 49. Order In criminal case refusing writ for the County of Halifax, in granting licenses 
 of '■( r'iomri, with ooata, held bad- -Application for the sale of intoxicating li(iuors outside of the 
 to reacind the poi'tion of order relating to costa city, proceeded to read the writ r)f crtiomri 
 sustained — Defendants having been convicted and the papers sent up with it. Counsel oppos- 
 of ai> ottence under the Dominion .Statute in , ing rule, objected to the papers being read, on 
 relation to cruelty to animals, an aiiplication the ground that they were detached and there 
 was made to a Judge of the Supreme Court for ^ was nothing to identify them. 
 
m CERTIORARI. 810 
 
 Till' Cinirt iilloWH tlii'in tci lit- icail, as tlu'y 'I'licy iniitiiint'cl a fiii'tluT )>iii\isioii, that tlio 
 
 hiid fviilciilly lidi'ii aiiiit'xt'cl til the writ. loll, when finally jiassfil, shniihl In' valiil, ami 
 
 //( n l.iqitur Li<'iii.M., ('oiiiily a/ J/(i/i/ax, iiiml all pactius I'luioi'iiieil, nntwithstaiiiliiij,' any 
 
 1 R. i^ ('., '-'."i". (It'fuut or error coinniittcil in or in rcgaril to it. 
 'I'lio Hank of Nova Suotia, iloinj,' hiiHiiu'xs at 
 
 5;{. Betiirii -None on writ -Papers sent N»'w (ila.s;u'ow tiiri)nj,'ii a iiranoh. appiaicii from 
 
 back to Magistrates — Where no retnrn wan its asscssnient, ami t lie ajipeal having lii't'n iieard 
 ni.iik' liy tliu Justices on a writ of (■(r/iorari in the nioile proviileil l>y the hy-laws, the assess- 
 iliiw'ti'd to them, the Court helil the ohjeetion inent was coiitirmeil, ami a warrant issueil, in 
 fatal, ri'fuseil to i,'ive jnilL;nu'iit on the merits, puisuanee of whiih a levy was niaile on iiooka 
 ami (liieiteil the papers to lie sent liaek to tile of aeeount of the hank, anil on a numlier of 
 niiiL;istiiite.-i, til ileal with as it might be thought j promissory notes, the ])roperty of the bank. 
 l]i..>t, ' The hank having thereupon lirouglit the assess- 
 
 Mo-li'f V. Doraii, .'< R. & ('., 184. ,|„,m .^,„^ „„,.|.ant up by <■' r/iorari, 
 
 I Jf</i/, that see. (i7, of c. '21, R. S., diil not apply 
 34. Rule absolute In llrst Instance to set \ u, the case, being eontineil 10 nomine to proceed- 
 aside writ, no steps having been taken for a , i„j,„ „f the .sessions touehing rates, that the levy 
 year -Where a niotinn is made to ipiash n ' ,),i pronussory notes was good, that the provision 
 (crfifirtiri, on the ground that no step has lieen „f the by daws making the assessment tinal and 
 tiiki-n within a year, the lule will be iiljsolilte i i,j,„|i„g^ notwithstanding defects or errors, did 
 in tlio first instance. j „„t prevent the Court from reviewing it under 
 
 TIf L'ihj of Halifax v. 17//. /V, W R. kC, .")4 ; „.,.it of n r/iorari, and that the r, r/ioruri would 
 Till Ci/i/ of Halifax y. I'or/ir, Ih. \\^, j„ ^ueh ease if the atKdavit disclosed .sufH- 
 
 cient grounds, the scojio of the writ being wider 
 .1.1. Rule nisi or Rule absolute In first |,eie than in England, 
 instance- -Discretionary with Court- Jt is dis- '|'i,y Cmi-t. after ruling as above, (jiiashed the 
 crt'tioiiiiry with the Court, on an application for ,■< r/iorari, without costs, sutiicient grounds not 
 a writ of n r/iorari, either to grant the writ in l,,iviiig been shown for setting aside the assess- 
 tlif first instance or merely a rule ni4 therefor. |,n,nt, 
 
 //( /'■ T. J. Wallari', 1 Old., .V2."). /,, ,.,, ,.l.„f'.«/,(.;/r of Ihe Jiaiik of Xora Si-o/ia, 
 
 III/ /III' Toirii of Xiir (rlani/oif, 3 R. & ('., li'2. 
 
 50. Rule nisi to quash writ made Iiy a 
 
 Judge returnable before the Court on circuit 58. Statute restricting writ -/'"■'rhompsoii, 
 
 —No power to grant .such rule — A .liidge at ,1. — Although the .lustice's decision is made by 
 
 Chainlicis has no power to make a rule »/</ to the .Statute tinal, we could, on n r/iorari, say 
 
 i|iia,sli a writ of c. >7/oc«)v' letuiiiable before tlie that he had assumed a jurisdiction which lie 
 
 Cinut 1)11 circuit. could not exercise. 
 
 /•Jllio/I V. Mi-Doiialtl, ;$ R. & (i., •iS.S. Hairts v. liar/, R. & (i., p. 45 ; 
 
 I (iC. L. T., 14(». 
 
 •i«. Sot aside wlien sufllcient grounds lot I 
 
 disclosed for issue of ~ Statutes restraining -^^ Sum.ni.iry ♦•ause brCUght U|) by Cer- 
 
 writ-4th R. S., c. 21, s. 67-'riie Act of iiicor- tio,.ari on grDund that Judge of County Court 
 l.nrati(m of the town of Xewtdasgow, in .section h^d refused to take down certain evidence— 
 46, inovidc'd that the corporation should as.sess, Order ni^i to set aside writ-Order for writ 
 colkut, and pay over whatever moneys were ghould also be attacked— A motion was made 
 ii(|uircd for poor-rates, and all other (except to set aside a nr/iorari tak-'ii out in a summary 
 sdiool) rates, ami should have within the town y,^,,^^ t,,ie,i ;„ ^i,^. Co.mty Court, the ground for 
 all the powers relating thereto vested in the ^1,^ ,.„.,/„;.„,./ i.ejng that the .Judge had refused 
 Sessions, (Jrand .Jury, Town JVIeeting, etc. The to take do\^•n certain evidence. 
 Mil srctioii oiupowered the town council to tj^^, (-,,,^„.j j,gf„j,j.,j t„ amend the minutes of 
 make by-laws and rules touching all matters the County Court .Judge, but as to the .'.-(yiomW, 
 |villHn tlieir authority, including rules for regu- 1,^^ that 'it was safer and better that the rule 
 Wiug the mode of assessment and levying the to set it aside siiould include a motion to set 
 same, which by-laws, when approved by the ,isi,ie the order for the o'r/iorari as well as the 
 (.ovenior-in-Couiicil, shouhl have the force of t.,,y/om?'/ itself. With the consent of the parties 
 laws. The by-laws so made defined personal ti,e rule to set aside the «;V/oran was discharged 
 property for the purposes of assessment, so as to ^yith costs. 
 
 comprehend all goods and chattels, and provided | Doyle v. Gallon/, 2 R. iV (!., 86 ; 
 
 lor the trial of appeals from the assessment, i 1 C. L. T., 567. 
 
311 
 
 CHOSE IN ACTION. 
 
 312 
 
 60. Under writ of, Court can review 
 
 queationa of law. not of fact - Halifax City 
 Charter -Acts 1864, c. 81, 8. 140-\Vlicic cc.ii- 
 victioiiH liy tlic Stipeiiiliiiry Magistrate of thu j 
 City of Hiilifiix, iiiulor swiioii 140 of the City 
 ClmrtiT, iiri; Imniglit up liy virtiontri, the Court 
 I'iin review iiiiy matter of law, l)iil eaniiot inter- , 
 fere with liis dfciHioii in respect to tiie factst. , 
 Qiiii II V. Li nj H a/., 3 R. & C, 51, 1 
 
 61. Waiver Right to certlorarl-Counsel, 
 
 arguendo. An atliilavit for an appeal was made I 
 wiiicii wan not perfected. 'I"he defence, on 
 teclinical groiin<ls, was waived by taking steps 
 toward an ai)peal. It is too late to apply for a \ 
 cirfiomri after an apparent iicquiescence in the 
 jurisiliction of tlie Court. 1 
 
 Per Highy, -1.. delivering judgment of tlie ] 
 Court, there was also a contention tliat l>ecause 
 the defendant appeared at the trial tiiere was 
 a waiver. liy the appearance he may iiave 
 waived the irregularity in tiie sunuuons, hut 
 could not have waived tlie irregularity in the 
 conviction, which was a sul)se(iuent matter. 
 
 Slarr v. JJvaJts, 4 R. & CJ., 84. 
 
 62. Where there was an appeal allowed 
 
 by Statute, but none taken -Writ of, sus- 
 tained notwithstanding — Three Magistrates, 
 fornnng a part of tiie Court of Sessions, by 
 whom the return of a precept issued under 'ind 
 R. .S. c. 62, for laying out a road is to be de- 
 cided, are not the tiiree disinterested freeholders 
 couteniphited by that Act. The proceedings of 
 the Sessions were brought up by ruiiorari. 
 Objection was taken that cirliorari was not the 
 proper mode of (juestioning the proceedings, but 
 that an appeal should ha\-e been taken under 
 sec. rt of 2 R. S. , c. &2. 
 
 Per Wilkins, .7., the only question here, it 
 seems to me, is whether the parties ought not 
 to have appealed from the decision of the Ses- 
 sions, as provided for by the Statute. But it 
 would be a mockery of justice to compel them 
 to resort to that course. For after that appeal 
 it would be competent for the parties to bring 
 up the proceedings here, and the objection now 
 taken would be open to them. 
 
 Court were unanimous in making absolute the 
 order to quash the proceedings. 
 
 Queen v. Chapman, 2 Thorn., 292. 
 
 63. Writ of— How allowed. -Quaere, whe- 
 ther, under the practice, the writ of certiorari 
 should not have been allowed in the first instance 
 without any rule nid. 
 
 Queen v. Ward, 20 N. S. R., (8 R. & G.), 108. 
 
 64. Writ quashed where there has been 
 
 laches — Waiver — I'roceedings having Iwica 
 taken to lay out certain roads under ciiapltT 60, 
 Revised Statutes (.3rd series), all the rei|iii»itcs 
 were complied with and the report duly cuii. 
 tirmcd by the Sessions. Kighteen montiis Huh- 
 seijuently plaintitr, through whose properly the 
 roatl passed, apjdied by writ of n rHoniri to 
 have the proceedings reviewed and set aside t)y 
 the .Supreme Court. He hatl not appeared hufure 
 tlie Sessions nor made tiiere any objection to the 
 conlirmation of the report. 
 
 Ili/d, that having omitted to do so, and the 
 
 proceedings iiaving been contirmed by a court 
 
 of competent authr)rity having jurisdicti(jii in 
 
 the matter, iiis application siiould be refusfil. 
 
 Doijijill V. Tremaiu et a/., 3 N. S. 1)., 419. 
 
 CHAILENGE- 
 
 OF JURY IN CIVIL ACTIONS— .SVf Jl'RI, 
 
 CHAMBERS, JUDGE8'- 
 
 See PRACTICE. 
 
 CHAMPERTY AND MAINTENANCE. 
 Doctrine of, largely modlfled by modern 
 
 cases — The doctrine of maintenance ami tlwm- 
 perty is largely modified by the modern cases. 
 Allan et al. v. McIIefey, 1 Old., 120. 
 
 CHARACTER- 
 
 I. GIVING SERVANTS -*e MASTER 
 AND SERVANT. 
 
 II. DEFAMATION OF --S'ce DEFAMATION. 
 
 III. REPRESENTATIONS AS TO-Ae 
 DECEIT. 
 
 CHOSE IN ACTION. 
 1. Action by asslgnee-Notlce-Conslden- 
 
 tion - Forbearance to sue — Defendant »« 
 indebted to plaintiff's assignor, and upon 
 demand of the amount by the assignee acknow- 
 
m 
 
 COLOR OF TITLE. 
 
 314 
 
 ledgeil the iiidcbtodness and roiiuested time for 
 mymoiit, jiromisiiiji in considurivtion of tho for- 
 liearaiiff to |niy thu amount to tho plalntit!'. 
 Pl(iintitr»uiny for the debt, objection waa taken 
 that liu was obliged a^ assignee to give fourteen 
 diiys' notice unilor tlie statute. 
 
 //(/(/, that tiie forbearance to sue was good 
 consideration, and tliat [daintiH' couhl recover 
 on an account stated. 
 
 Pai-ioii-i, Axiiii/net, v. MacLeau, 5 R. & (J,, 45. 
 
 2. Novation— Wlien A. is indebted to B., 
 and ('. is indebted to A., and tiie three parties 
 meet togctiier, and A. agrees tliat C. shall pay 
 U. tiie amount due by him to A., which C, agrees 
 to di), A. cannot afterwards revoke such order. 
 
 MitchM ft a/. V. TurnhuU, H aL, 2 Thorn., 250. 
 
 3. Assignment of— 
 
 Su ASSIGNMENT, II. and V., S & 10. 
 
 eating liquors. The Magistrates rendered a 
 decision in plaintiff's favor, which was (juashed, 
 in the Supreme Court, where it was brought by 
 rer/iorari, for want of jurisdiction, on the 
 ground that one of tho Magistrates was related 
 to tho )>laintitf. The Municipal Council having 
 refused to allow plaintitf his costs, application 
 was made under 4th Rev. .Stat., c. 75, sec. 28, 
 to amerce the county, 
 
 //(/(I, that there being no jurisdiction in the 
 
 ; justices to issue process or to try the cause, 
 
 plaintitf hail acijuired no right under the 
 
 statute to be compensated for his outlay. 
 
 Smith and Thompson, .I.J., f//W»/N/;/. 
 
 Jart-'Oii v. The Muuicipalilji of Cnm.hi'rlaml, 
 
 I OR. &(;.,119; 
 
 «C. L. T., 442. 
 
 CLERK- 
 
 ATTORNEY'S-A'ee ATTORNEY. 
 
 CITY BUILDING ACT 
 CITY OP HALIFAX- 
 
 See HALIFAX, CITY OF. 
 
 CLERK OF LICENSE. 
 
 1. Liability for costs— in an action brought 
 in the Supreme Court ))y the Clerk of License 
 on an appeal bond, purporting to be made by 
 the defendant and another, on an appeal against 
 a conviction under chapter 75, 4th R. .S., "Of 
 Licenses, &c.," a verdict was found for the 
 defendant on the ground that he had not execu- 
 ted the bond on which the suit was brought. 
 
 Held, that the Clerk of License was not 
 liable for costs of suit. 
 
 Qme.n v. Murray, 1 R. & C, 58. 
 
 2. Clerk of License — Action for Illegal 
 
 sale of liquor— Conviction quashed for want 
 of jurisdiction — Amercement to compensate 
 clerk refused-4th R. S., c. 75, sec. 28-cf. 5th 
 ^ S., 0. 75, 8. 40— Plaintiff, as clerk of license 
 tor one of the districts of the County of Cumber- 
 land, brought an action before two Magistrates 
 to recover a penalty for the illegal sale of intoxi- 
 
 COLLISION- 
 Ste SHIPPING. 
 
 COLORE OFFICII. 
 Action for money taken — A pedlar was 
 
 informed that he would not be allowed to sell 
 oil in the town of Dartmouth without a license, 
 and rather than stop his business or contest tho 
 right, he paid the fee. 
 
 The County Court .Judge helil that the money 
 having been paid voluntarily, couhl not be 
 recovered. 
 
 Held, reversing this judgment, that the money 
 could be recovered back under the count for 
 money had and received. 
 Hancock v. Town of Dartmouth, 2 R. & G., 129. 
 
 COLOR OF TITLE. 
 
 1. What necessary to give, under void 
 
 deed — To acquire a colorable title to land under 
 a void deed, there must be open and continuous 
 acts of possession of some part of the land em- 
 braced within the deed. Where the deed relied 
 on as giving color of title gives no boundaries, 
 description, or designation of the land, it can 
 have no effect beyond the actual occupation or 
 improvement, 
 
 Boyd V. Milieu, 3 N. S. D., 292. 
 
 2. Per Dodd, J.— Possession by descent 
 
 is possession under color of title. 
 
 Smyth V, McDonald etcU.,1 Old., 274. 
 
315 
 
 COMMISSIONER. 
 
 316 
 
 CLUB. 
 
 1. Halifax Yacht Ciiib Winding up Act 
 
 does not apply to — Tlie petitioner, as adniiiiistra- 
 trix, recovered judgment against tiie Halifax 
 Yaclit Club, and issued execution, which was 
 returned unsatisfied, there being no assets. She 
 then resorted to tiie individual liability of tho 
 corporators, uniler 4tli K. S., c. o.S, s. l.S, liut tiie 
 iSupr- iiie Court decided tiiat the section did not 
 ajiply to such a corporation. Petitioner tlien 
 applied to have the affairs of the company 
 wouml uj). 
 
 Hdd, that the Provincial Act in reference to 
 winding uj) of com])anies, differing from tho 
 English Act in that it was ex])res.sly made ap- 
 plical)lc to chilis, could lie invoked for the pur- 
 pose of winding up the Halifax Yacht t'lub, but 
 that, as there was no individual liability, and it 
 was admitted there were no assets, the prayer 
 of the petition sliould not bo granted, as it 
 would only create needless litigation. 
 
 //( >•(. Tht JIa/ijhx Yacht C/iih, K. E. I)., 473. 
 
 2. Execution against nicnibcr of, execu- 
 tion against club having been returned unaat- 
 isfied — An ajiplication having been made for 
 leave to issue an execution against an individual 
 nienilier of the defendant club, an execution 
 against the club having been returned un!.atistied, 
 
 Ifi/il, that section l.S of cliapter ii.S of 4lh 
 R. S , created no new liability on the part of 
 members of a corporation, but merely provided 
 that tliey should not 1)C relieved from any liabi- 
 lity tint would have attached to them as part- 
 ners, if unincorporated ; that the members of 
 defendant club would not, if unincorporated, 
 have been liable as partners, and tlie statute 
 v/asnot intended to apply to such a corporation ; 
 and, even if this were not the case, that tlie 
 plaintiff could not hold an individual member 
 liable without proving that he was a nienilier at 
 the time of tlie return of the execution issued 
 against the club. 
 
 Rule Hi.fi for leave to issue execution dischar- 
 ged, but without costs. 
 
 Scolt V. Royal Halifax Yacht Club, 
 
 IR. &G.,3'22. 
 
 COMMISSION- 
 EXAMINATION OF WITNESSES VNDER- 
 -Stt EVIDENCE. 
 
 COMMISSIONER. 
 
 1. A Commissioner who is in practice, 
 
 I and lawfully recognized by the Court us an 
 officer exercising a function so important, is 
 within the meaning of section 123 of the Insol- 
 vent Act, 18G9, " a Commissioner appointed l,y 
 
 the Court." 
 
 LatKj v. Fonmau, "2 X. S. I)., 546. 
 
 2. Aflidavit sworn before J. P. when Com. 
 
 missioner at his usual residence within three 
 miles — Where the alHdavit on w hicli an attacli- 
 ment was grounded was made before a Justice 
 of the J'eace, and it appeared th'it a Conimis- 
 sioner for the County was, at the time, at liis 
 usual residence, and within three ruiles of tiie 
 place where the athdavit was made, the procetil- 
 ings were set aside. 
 
 Knodd V. Hist, '1 Tlioni., 14i). 
 
 3. Power of Court over— On a motion to 
 
 set aside an order of a ('ommissioncr refusing to 
 discharge a debtor held to bail under tliu onlcr 
 of another Commissioner, the Court claiming a 
 controlling power over its Commissioners, pusseil 
 a rule absolute, discharging the defeiidiiiits 
 without costs. 
 
 Hoiicrs V. 7%e>-.>-, '1 R. & (i., 495. 
 
 4. Of Sewers— Appointment of-riiintiff 
 
 and defendants were, by commission from the 
 Lieutenant-< iovernor, appointed Commissioners 
 of Sewers for the township of Falnumth. 
 Plaintiif had been selected by proprietors repre- 
 senting two-thirds in interest. Commissioner of 
 the village dyke. 
 
 Hi Id, that plaintitT alone could maintain an 
 action against defendants, although at llio time 
 of his selection, and when the work was done, 
 defendants were named with him in the execu- 
 tive commission. 
 
 Dneidson v. Lawrence et al. 1 N. S. D., .'12. 
 
 5. Presumption as to appointment -3rd 
 
 R. S., c. 72, 8. 2— Effect of not being sworn 
 into office — Plaintiff's, as Commissioners of 
 Sewers for the district of 15. and M., brougiit 
 action against the defendant for certain dyke 
 rates assessed on the owners of marsh lands m 
 that district, for constructing and repairing 
 necessary dykes, etc. Defendant pleaded tiiat 
 plaintiff's were not Commissioners of Sewers for 
 that district. The Act regulating the appoint- 
 ment of such Comnii.'-;si(niers provided that 
 on being app<iinted they should be sworn into 
 office by a Justice of the I'eace, and tlwt 
 such swearing should be entered in the Com- 
 
317 
 
 COMPANIES. 
 
 318 
 
 missiontTs' book of rcuonl. It appeared that | 97, s. 26— Cf. 5th R. S., e. 104, O. 47, R. 1 - 
 
 only one of the plaintiH's luid fiiltilled tliis When llie uppraisenient shows that tlie apprais- 
 
 rcciiiii'oiiu'iit, 
 
 ini.'-sioiiei-s for .several years. 
 
 Ill III, that in llius di)'eeting as to tlie entry of 
 the sweiuiiig it was not intended by the Legis- 
 liitme to sliut out ail other proof of ([ualitication, 
 anil that tiicre was sutlicient evidenee aside 
 
 hilt all three had acted as Com- ' ers were sworn, and the Sheriff's return refers 
 
 to the appraisers' wariant, tile swearing of the 
 ajipraLsers sutti':iently ai)pears. 
 
 "Serviee on the agent of process to appear," 
 
 in sec. 26, cap. 07, R. -S., (4th ueries), means 
 
 service on the company's agent of process reqiii- 
 
 fidiii tiii.s to afford tiie presumptif)n that the ; ring the com))any to appear. Levy under the 
 
 nlaintifl's were legally ap])ointed and duly ' attachment under that chai)ter may lie made 
 
 iiutliotizcil to act in tiiis as.seasment. I before service on the agent. 'Die levy is effec- 
 
 Hubril ul. v. JlcFar/diie, 2 X. S. 1)., JJ-t. tual from the time of seizure of the property 
 
 and not merely after appraisement and selection 
 6. Of Streets —Appointment of -Rotation of the property to be held to respond the 
 svstein continued — .Section 10 of chapter 4U, judgment. 
 
 4iii It. .'^., providing for the retirement of Street The Muxhaul-i Bank v. 77" Sli:il C'o7n/iany 
 ('(imiiiis.sionors by rotation, applies to tlie ap- ' of Cuiiaila (Liiaiii il), ."> R. & G., "258. 
 
 noiiitmcnt of C'ounnissioners by the Municipal i 
 
 Cor.iKil nmfaiu mii/aiidl-i. 2. Wlndlng-up Act— Winding-up order— 
 
 .McDonald, C. J., di^Kintinij. , Jurisdiction over foreign companies— 45 Vic, 
 
 LtttiMty V. DUIon, ti R. iS: (i., 14(i ; c. 23, D. — Requisites of order — II' Id by .Smith, 
 6C. L. 'P., 449. Weatherbe, Rigliy, and Thompson, JJ., that a 
 company, though incorporated in (ireat Britain, 
 can be made the subject of a winding-up order 
 in tile Supreme Court of Nova Scotia, imder 
 the Winding-up Act of 18S2 (Canaihi), when the 
 company is carrying on business in Nova Scotia, 
 ami has its management here altogether or in 
 part. 
 
 /'( )• McDonald, J. — The Court has jurisdic- 
 tion to make such an onler when an Act of the 
 Proviiii.ial Legislature has confened on the com- 
 pany the right to hold lands in Xova .Scotia. 
 
 McDonald, C. .L, diifiidiiuj, on the ground 
 tiiat tile Winding-up Act does not and could 
 not confer jurisdiction over foreign companies. 
 
 Ilild, by McDonald, C. J., and McDonald, 
 .Smith, and \V'eatherbe, JJ. , that a windhig-up 
 order must name the permanent li([uidator, and 
 cf>uld therefore only be made after notice to 
 creditors, coiitributories, &c. 
 
 Kigliy and Thompson, JJ., dis-ohiiiKj. 
 
 Ill rt H/tc/ Coiii/Kini/ of Canada (Limited), 
 
 5 R. & (i., 17 & 49. 
 
 On aiijiad to Ihn Sii/mme Court of Canada, 
 Hild, reversing the judgment of the Supreme 
 Court of Nova Scotia, Founder, .J., diiifmiUinij, 
 that 4.") Vic, c 'J.S. , was not applicable to such 
 company. 
 
 Tilt Mtirhanlt' Bank of Halifax v. C.'llcsjiie, 
 
 10 .S. C. R., :n'2; 
 4C. L. T.,27G. 
 
 3. Winding-up order set aside on tectanU 
 
 cal grounds — New order granted upon same 
 petition held good — An order was made for the 
 winding up of the company, and. under that 
 order, a provisional liquiilator wnsi appointed. 
 
 COMMON LAW. 
 Common law — Statu'ies, English — How 
 
 far in force in this Province — Tiie Statutes 
 ;i;j H., S, c. .'iO, and Ui Eliz., c 4, which 
 gave the Crown a lien upon the real estate of 
 cci'tciin public officers as a security for the fultil- 
 niunt of tlicir lioiids are luit in force in tiiis Pro- 
 vince. Tiic revenue laws of Kngland are not 
 iippliciililc here except in so far as our Legislature 
 lias seen tit to adopt their provisions. 
 
 The whole of the English common law will be 
 recognized as in force here, excepting such parts 
 lis are obviously inconsistent with the circum- 
 stances of the country ; while on the other hand 
 none of the statute law will ije received except 
 .such p.irts as are oliriowly a/i/iliaihlK and nextn- 
 mry. 
 
 The increasing lapse of time since tiie settle- | 
 ment of the Province should render the Court 
 niKie Lauliou in recognizing English Statutes 
 which have not been previously introduced. 
 
 Uiiiacke v. Dirk^iii ct a/., James, 287. 
 See, aim. Queen v. Porter, 20 N. S. R., 
 (8R. &(i.), ;ir)2. 
 
 COMPANIES. 
 1. Suits against — Service on agent - 
 
 Attachment against companies — Levy and 
 appraisement — Construction -of 4th R. S., c. 
 
319 
 
 CONSTABLE. 
 
 320 
 
 The order was set aside, as notice had not been 
 given as required by statute. Notice was tliere- 
 upon given, and a new order taken, witliout 
 any further petition. 
 
 Held, tliat no new petition was necessary. 
 In re Steel Company of Canada (Limited), 
 
 5R. &G., 141. 
 
 COMPOSITION. 
 1. Acceptance of dividend by creditors 
 
 who have not signed — Defendants were tlic mak- 
 ers of two proniivSsory notes to A. & Co. , whicij the 
 latter indorsed to the Halifa.ic Hanking Company. 
 Before the notes became due both defendants and 
 A. & Co. became insolvent. A composition deed 
 was executed between defendants and their cre- 
 ditors, by wliich the latter agreed to receive 
 eiglit shillings and nine pence in the pound in 
 full of their respective debts. Tliis deed was 
 not executed by the H. H. Co., but they took 
 new notes from the defendants, embracing at 
 this ratio all their claims against the defendants 
 on promissory notes, including the two notes in 
 question, and gave the following receipt : — 
 
 Halifax Banking Company's Office, 
 
 Halifax, '2At\\ April, 1858. 
 
 Received from Messrs. Salter & Twining the 
 
 sum of one hundred and twenty-two pounds ten 
 
 shillings currency, being the composition of 
 
 eight shillings J'.nd ninepence (8s. 9d.) in the 
 
 pound 0.1 their two notes of liand in favour of 
 
 Messrs. Allison & Co., amounting to £280, and 
 
 discounted by Messrs. Allis(m & Co. at this 
 
 Bank, the notes being retained for the purpose 
 
 of receiving a dividend from the estate of 
 
 Allison & Co. 
 
 (Sgd.) N. T. Hii.L, Cashier. 
 
 The cashiei' of the H. B. Co. stated " that the 
 notes were left in the Bank by defendants of 
 their own accord ; that had the notes Ijeen re- 
 quired by tile defendants they would have been 
 delivered to tiiem, the Bank considering the 
 defendants wholly discharged of any furtlier 
 claim on them on account of these notes." He 
 also stated tliat there was no reservation. 
 
 It appeared, however, that one of the defen- 
 dants, at tlie time ti^e notes were so left, said : 
 "The Bank are fully entitled to receive tlie 
 whole amount of the notes, and witli that con- 
 sideration I leave tlicm with you for the purpose 
 of recovering from Messrs. Allison & Co. , (A. & 
 Co.,) the difference from their assets. 
 
 The H. B. lo. subsecpiently obtained ten shil- 
 lings in the pound on tlie face of the notes from 
 the estate of A. & Co., (neither A. & Co nor 
 
 their assignees, it would appear, being aware, at 
 the time, of tlie transaction between tlie tlcfeu- 
 dants and tlie Bank), and the action was biought 
 by tlie assignees of A. & Co. to recover from 
 defendants the balance due on tiie face of tlie 
 notes after crediting tlie £\'22 10s. 
 
 Held, by Young, C. J., DesBarresand Wilkins, 
 J J., (Bliss and Dodd, J J., dix^entiiiij), that 
 tlie H. B. Co. had absolutely discharged the 
 defendants from all liability on account of the 
 notes, and that the action could not be iimin- 
 
 I tained. 
 
 Per Wilkins, J., that by the acceptance of the 
 composition the H. B. Co. became virtually 
 parties to the composition <leed, and bound hy 
 all its terms. 
 
 j Lawsou ef al. v. Salter et a/., 
 
 i 1 Old., 79 & 731, 
 
 j 
 
 2. Private stipulations witli particular 
 
 creditors — The defendant being indeljted to 
 plaintiff on a promissory note, and also for a 
 j separate debt, plaintiff executed a letter of 
 ; license in his favor for the other debt, 
 J reserving the note. The license, which pur- 
 ported to be executed Ijy the creditors gene- 
 j rally, was in fact ex. cuted l)y plaintiff" alone. 
 
 Held, that the license was ineffectual, aiul 
 did not bar plaintiff's claim. 
 
 Mooney v. Domom, James, 'Jo4. 
 
 See, also, ASSIGJfMENT-INSOLVEXT ACT. 
 
 CONSTABLE. 
 
 ! 1. Action for assault against Police Con- 
 
 1 stable — Justification— 32 and 3.3 Vic,, c, 29, 
 
 s. 132, D. — Two assaults committed — One 
 
 I sued for — Plaintiff waives one — Tiie plaintiff 
 
 , having been arrested on view, and imprisoiied 
 
 by defendant, a police constable, and his siipe 
 
 I rior officer, brougiit an action of trespass against 
 
 I the former aii<l recovered a verdict. The declu- 
 
 ! ration contained only one count for an assault 
 
 ! and false imprisonment, while the two distinct 
 
 assaults were proved at the trial, the scciiml 
 
 being the one connected with the iniprisDnnient 
 
 declared on. 
 
 Held, that this was a fatal objection, the 
 plaintiff not being at liberty to wai\ o the assault 
 first proved, and give evidence of another. 
 Under Dom. Stats., 32 and ,33 Vic. c. 29, s, 132, 
 the defendant being a suijordinate police otfioer, 
 may give evidence to show a justification umler 
 the command of a superior officer without plead- 
 ing such justification specially. 
 
 Peppy V. Orono, 1 R. & C, 31. 
 
321 
 
 CONSTRUCTIVE SERVICE. 
 
 2. Action against— No action lies against action for the oonversion of ii (juantity of intoxi- 
 aconstalilo for the execution of ii warrant, how- eating liquors tlie defenilant, P., justified as a 
 ever ilcfcclive, wliere the magistrate issuing tlie constalih', acting under a warrant purporting to 
 warrant iias jurisdiction. liave been issued l)y a Justice of the Peace lunler 
 
 McOrtijor v. Pal/tr.son, 1 Old., U'll. the provisions of the Canada Temperance Act, 
 
 IS78, and tlie defendant M. as his assistant. 
 
 3. Assault upon a Constable— Construe- The facts necessary to give jurisdiction did 
 tion of Dominion Acts of 1869, chapter 20, sec. not appear either in the information or warrant, 
 39— Peace officer in the due execution of his and tiie warrant was Lssued by rtne Justice, con- 
 duty held to include constable serving civil tiary to section 108 of the Act. 
 
 process -Chapter 'JO, section .S9 of the Dominion Hi/tl, that the conviction was bad. 
 
 ,\els of 1809, provides that "whoever assaults | Also, that the constable being a trespasser, 
 
 any . . . peace ofticer in the due execution his assistant could not justify under him. 
 
 of his duly . . . or assaults any person with Xothing will be intended in favor of the juris- 
 
 iiiteiit to resist or prevent the lawful a])prehcn- diction of an inferior court. 
 
 siim or detainer of himself or any other person 
 for any oflcnce is guilty of misdemeanor and 
 hall be liable," etc. 
 
 Defendant was convicted under this Act of 
 an assault upon a constable in the due execution 
 
 Gallihiw V, Pi/tr.ion t/ a/., 20 N. S. R., 
 (8 R. & <;.), 222; 8 C. L. T., ;J97. 
 
 7. Notice of action under 32 and M Vic, 
 
 c.29,s. 131, D — In action against police constable 
 of his duty. Ihe constable had an execution f,., ^^.^.^^^ ^,„,i f^^,^^. i,„j,,i,onnient, without no- 
 aguin-st -lefcndant, who pointed out a horse as i ^i.e „f action as re,,uired by sec. 1.31 of c. 29, 
 being all the property he possessed. The con- ^^o ,,„.i ..^3 yj,..^ j,i^^i„titr cannot succeed. 
 stal.le being of oi«nion that the horse was not p^^,^,^ ^ ^,,.^,,^_ 1 p_ ^ ^^ ^ 3,_ 
 
 surticieiit to satisfy the execution proceeded to 
 aiTcst, and was assaulted in doinL' so. c c<„i.v u., n„„ <~i.i. «» * j 
 
 „,, ^ .,, T i„- I , Tr ' ^' Sale by Constable after return day— 
 
 y/i/f/, /orNinith, Jamesand \\ eatherbe, JJ. — . , ,„ ,. .1 1 • 1 1 , , r 
 
 „. , ' ,, , , '""'A constable seize<l a horse under a warrant of 
 
 Ihat the constable, though serving civil process, : ,];„.„„„„ o., 1 .„. 1 ... i* 11 ti 1 t 
 
 . , . , , ° ° '■ ' . Mistress, and eiuleavored to sell the .same l)efore 
 
 Celine within the meaning of the words peace ,i,„ „..„„„ k. * ..i . 1 ^ 
 
 ,, , , , ° I vv jijg return day of the warrant, but was pre- 
 
 omccr, and that the conviction must be attirmed. »„ 1 *.. 1 • 1 • n 1 i.i r 
 
 M T> I , r. T i,r,. ,, T ,. . i vented from doing so, chiefly by the party from 
 
 McDonald, C.J. , and. McDonah, J., f/(N.sc/i/i«r/. ' ,..,^ »i „ , \ , \, , ... 
 
 ' > > ' " J- I whom the horse was taken. Subseciuently to 
 
 the return day the constable sold the horse. 
 //(-/(/, that the sale was valid. 
 
 W/ieatoii V. Franditvilk, 2 X. S. I)., 288. 
 
 CONSTRUCTIVE SERVICE. 
 
 Qiittn v. Laii/:, 7 R. & G., 1 ; 
 
 7 C. L. T., 50. I 
 
 4. Dulles of-A constable to whom a war- 
 rant is intrusted for the collection of a school 
 assessinciit, the warrant containing recitals that 
 tlie assessment was "made in conformity with 
 law," etc., is iiiider no obligation, in order to his 
 fJiDtection, to institute every inijuiry as to the j 
 
 legality, or the existence of the assessment re- , Constructive SCrVlCC- Affidavit fOr— Plain- 
 fcneil 1(1, or as to demands having heen made on till" obtained in the County Court an order, under 
 the parties named in the schedule, or as to their 4tli R. .S., c. 94, s. 44, for construclive service 
 ■;c;ng dtfaiilters. His sole, single, unmixed duiy of a writ of summons on the defendant, who was 
 13 to oliey the nuindatory part of the warrant absent at the time in England. The affidavit on 
 wlieiowilh he is charged. which the order was taken was substantially in 
 
 J/',(.'n;/oc V. Paflirsoii, 1 Old., 211, atliiuied. these terms :— " That said defendant is absent 
 I'iiico V. Shair t/ a/., 1 X. ,S. D., ;i02. from the Province, and is, as I am informed and 
 
 believe, in ( ireat Hritain, so that personal service 
 
 3. Execution substituted for warrant— , cannot b.; effected upon him, if at all, without 
 The rioviueial Statute, ."{4, (Jeo. 3, c. 1,"), pro- 1 great expense and incimvenience ; that I have 
 tectiug utlicers ami others, their assistants, act- | a good and available cause of action against de- 
 ing under the warrant of a Justice, extends to, j fendant ; that H. P. is the agent and partner 
 anil inehidcs them, when acting under ant.vccu-- of the defendant in this Province." 
 tion substituted for such warrant. \ Hdd, reversing the decision of the County 
 
 Stamaii,Jml, v. Be Wolf, 1 Tlioin., (2d ed.), 193. ; Court, that the alfidavit was tiot sufficient, but 
 
 j that it should have set out the facts and circuni- 
 
 6. Inrorniation and warrant must show stances necessary to make it "appear to the 
 facts giving jurisdiction to justify — In an 1 satisfaction of the Judge," exercising his own 
 11 
 
323 
 
 CONTRACT. 
 
 324 
 
 judgment in the matter, tliat the case came 
 witliin the terms of tlic statute providing for 
 constructive service 
 
 Foster V. Roome, 3 R. & C, .S44, distinguished. 
 McLellau v. Baldiviit, 3 R. & C, 554. 
 See, aho, PRACTICE. 
 
 CONTEMPT. 
 
 1. Powers of House of Assembly to punish 
 
 for- 
 
 ^ee ASSEMBLT, HOUSE OF. 
 
 2. Barrister charged with— A letter writ- 
 ten by a Barrister to a .Judge, ci\iirging tlie 
 Judge and tlie wliole Court with partiality in 
 cases in which lie was a party, is a contempt 
 of Court ; for which tlie Court may, of its own 
 motion, suspend him from practice. 
 
 In re T. J. Wallurc, 1 Old., 6.-)4. j 
 
 Order suspending from practice discharged on i 
 appeal to the Privy Council on the ground that 
 " the offence" was committed l>y an individual in 
 his capacity of suitor, in respect of his supposed j 
 rights as a suitor, and of imaginary injury done 
 to him as a suitor, and had no connection what, 
 ever with his piofessional character, or anj' thing 
 done by him as an advocate or attoriiej-, and 
 to otfences of that kind there had been attached 
 by law and long practice a definite kind of 
 punishment, viz., fine and imprisonment; and 
 that *-here was no necessity for the Judges to 
 go further than to award to the offence the 
 customary punishment for contempt of Court ; 
 that tliere was nothing which rendered it expe- 
 dient for the public interest, or right for the 
 Court, to interfere with the<^a?!(.s of the indi>'id- 
 ual as a practitioner of the Court. 
 
 Walku-e, in re, 1 Old., 6(56; 
 L. R., 1 P. C, 283. 
 
 CONTINUANCE- 
 
 See PRACTICE. 
 
 CONTRACT. 
 1. Action for breach — Party entitled to 
 
 sue— Interest in the profits— Agency— Amend- 
 ment by adding plaintiff- Party joined must 
 consent in writing — Order 16, Rule 10— L. W. 
 
 brought an action to recover damages for the 
 breach of a contract, made by defendant, for the 
 supply of a quantity of canned lobsters. 
 
 It appeared that in making the contract, 
 plaintiff was merely acting as .'gent for M. L. 
 \V., and that he had no personal i'lter' st in the 
 transaction beyond the fact that his reimuiera- 
 tion was dependent upon the amount of profit. 
 
 Ifi/(l, that the understanding between ]ilain- 
 fiff and M. L. W. as to the mode in which 
 j)Iaintiff was to be remunerated for his services, 
 could not enable the latter to recover in his owa 
 name for a breach of the contract. 
 
 Leave having been grante<l, on an appliciitioii 
 made for that purpose, to ameml, by adding the 
 name of M. L. W. as plaintiff, 
 
 Ifild, that miller the wording of Order 16, 
 Rule 10, such an aniendment could not lie imule 
 in the absence of a written consent by tiie party 
 to be Jf)ined. 
 
 Wnrzbtir,/ v. Wehh, 7 R. & (i., 414. 
 
 2. Action for goods sold and delivered- 
 
 Offaet — Contract made by agent — Authority of 
 agent — Judgment of County Court Judge 
 reversed — Appeal from a judgment fif the 
 County Court Judge for district No. 1. in favor 
 of defendant, in an action by plaiiititl's for the 
 price or value of goods ordered by dcfciulaut 
 through an agent employed by plaintitt's to 
 solicit orders, in the course of their Inisiness, 
 Defendant set up, as an offset, a contra account 
 for an advertisement of plaiiititl's' business in a 
 newspaper of which defendant was proprietor. 
 Plaintifl's had previously advertised in defend- 
 ant's paper, but the time had expired, and the 
 order for the goods sued for was obtained by 
 the agent agreeing to continue tlie advertise- 
 ment. 
 
 It appearing that the agreement was made 
 without authority, the appeal was allow ed with 
 costs and the judgment below reversed. 
 
 Oland et al. v. Bertram, 7 R. & G,,?12; 
 8 C. L. T., 6). 
 
 3. Agreement among owners of vessel as 
 
 to management of vessel, &c. — Plaintifl's fur- 
 nishing supplies, &c., without notice of— Plain- 
 tiffs had for some ye.ars furnished outfits and sup- 
 plies for a fishing vessel of which defendants were 
 part owners. In 1866 it was agreed among tl:e 
 owners that J. McC, one of them, shonld man- 
 age the vessel on his own account, jiaying »" 
 expenses and that the otliers should receive cer- 
 tain proportions of the proceeds, but of this 
 agreement plaintiffs had no notice. 
 
 Held, that defendants were liable for goods 
 supplied by plaintifl's to J. McC. in the usual 
 way after the agreement. 
 
 liyemon et al. v. Lyons et al., 2 N. S. D.,4j- 
 
325 
 
 CONTRACT. 
 
 326 
 
 4, Agreement, construction of— PartiCU- | tilings omimeratcd in tlie schedule annexed, or 
 lar words, terms and phrases — Defendant lield | tliose added to or substituted for them, passed 
 
 iv niott^itge (if teitain propei'ty in the possession 
 of the mortgagor, and agreed, by letter pre- 
 paRil Iiy tiie plaintitl', altliough signed l)y the 
 (lefeniliint to sell to the plaintitl' all the interest 
 and title of defendant to said premises with 
 all securities, collateral or otherwise held by 
 
 to Wylile, Ifart i^ Co., and that tile word 
 " things " eould not be held to embrace the gen- 
 eral stock in trade, but nuist be limited to pro- 
 perty ijusihjn lif.wrix with that descrilied in the 
 words preceding and connected with it. The 
 word "plant," when used in reference to a, 
 saiil (lefeiidai't in respect of siiid mortgage ; also manufactory, was probably applied in tlie first 
 a curtain i)olicy of insurance, itc, the defend- : instance only to such apparatus or machinery 
 ant guiiraiUeeing good title, and tliat said niort- I as was afKxed to the premises, but a more 
 gage was a Hrst encund)rance, &c.. Afterwards extended meaning seems now to be given to the 
 plaintitl', having given defendant his cheijue , word, ami the plant of a manufactory endiraces 
 for ^.'idO on account, the defendant signed a ' all the apparatus or machinery, whether fixtures 
 receipt substantially in these terms : "Rcceiveil or ('thorwise, by moans of which the business is 
 from T. K. Jenkins the sum of five hundreil carried on. 
 
 ilollars on account of tiie purchase of all my in- 
 terest and title in tlie mortgage on Stephen 
 property. * * I have sold saitl mortgage of 
 SS,(XKI, together with the securities, collateral 
 or (itlierwise, held l)y me * * * an,! l„ilf 
 
 //( ri Jfoiiti/oniiry, an Iiisolri nt, 
 
 K. E. D., 154. 
 
 0. Agreement for sale of lands Kescin. 
 
 ding by parol before breach— An agreement for 
 the interest of the a<ljoining property south, and ^,,^. ^.^^ „f j.^^,,^^ go„,l „„,|„. ^^^ Statute of 
 insurance policy and receipts on saiil property, p,.,i,.,ij,^ ,„,^y ,,e rescinded before breacii of it by 
 am! all other securities, * * * balance to p_.^,.„,^ provided there is a total abandonment of 
 be paid as soon as possession is obtained by ^,^^ ^^.,^^^j^ contract, and not merely a partial 
 T. K. .Jenkins." The Coiu't having, under a , ^^..^^.^,^. ,,f g^„„^ „f j^^ t,,,,„„ . „„,, ,ioes the vah- 
 rule, power to draw mferences as a jury might ,,i^,, „f ^„^.,^ rescission .lepen.l on the existence 
 do, Ir.hl that the p.is.session referred to in this ^^j .^ consideration. 
 
 agreement was possession of the securities men- ; Bardaij v. Proa.-<, R. E. I)., 317. 
 
 tioned and not of the land, and they non-suited I 
 the plaintitl' in an action of damages against de- ! 
 
 fcndant for not perf.inning his agreement bj 1' Actlon fOr WOrk and labor-Counter- 
 
 dtlivering possession of the land. claim— Rectification of conti : 'it— Amendment 
 
 Juikim v. Sluliiiij, 3 R. & C, 510. , of pleadings-Laches, accounting for— In an 
 
 I action to recover an amount claimed to be due 
 j for work and labor done, defendant sought to 
 5. Agreement— Construction Ot~Ejii>idem plead by way of ofi'set or counter-claim, an 
 ;/«://.W» -Definition of "plant" — The insolvent amount which plaintitl' had agreed to pay for 
 conveyed certain property to ^Vylde, Hart & Co., , every day that his contract should remain unexe- 
 liy an instriunent, reciting that he had agreed to I cuted after the date fixed for its completion. 
 give them security on all his real estate, /Vawi' ' The words "per day" having been ondtted 
 (im/ Hi((-7i/Ho7/, m the city of Halifax, and after from the contract, defendant applied to the 
 conveying certain lands he conveyed all that and | equity side of the court for a rectification, and 
 those the )Hrt(7i/H(C(/, /)?iyy/(»((«^< ajfrf ^/n'«;/N speci- I obtained an order staying proceedings in the 
 lied in the schedule hereto annexed, which sche- ' meantime. 
 
 iMe was iicaded, " Plant in the Machine Shop," i An order, rectifying the contract by adding the 
 and was fotuid to contain, not stock on hand or : \\ord3 omitted, was granted on the '27th May, 
 articles manufactured, but only such articles as i 188."), but no step was taken by defen<lant to 
 wotdd enme under the designation of machinery, ; amend her pleadings until October following, 
 
 when an application was made at Chambers for 
 leave to amend by filing the coimter-claim. 
 
 Defendant's counsel accounted for the delay 
 by alleging on affidavit that he could not have 
 counter-claimed prior to the rectification of the 
 contract, and that subseiiuently he was delayed 
 by the absence of witnesses from whom it was 
 necessary to obtain certain information. The 
 application for leave to amend having been 
 refused, 
 
 implements and thhuix of that nort. A subse. 
 qjciit part of the instrument provided that all 
 the machinery, impkmmtx and thiiiy.^ which, 
 'liirmg the continuance of the security, should 
 be tixeil or placed in or about the land described 
 '1 addition to or substitution of the said machi- 
 nery, implements and things described in the 
 schedule annexed, should be subject to the 
 'tiists, &o., expressed in the instrument. 
 f!ild, that under the instrument only the 
 
327 
 
 CONTRACT. 
 
 328 
 
 Ildil, 1)11 appeal, that altliougli the dehiy after 
 the making of the order luul not been satisfac- 
 torily accoiinteil for, the refusal to ])erniit the 
 aniemhiient on terms was not jnstilieil by tiiu 
 circumstances of the case. 
 
 The jiower to anienil is so plainly intemled to 
 allow all mistakes and erroi's made in jileadings 
 to lie I'eetiticd in the absence of v}iilii liih ■■<, and 
 under such conditions as to juevcnt injury to 
 the oj)posing parly, that tlie court will hesitate^ 
 except unilii' very exceptional ciriMimstanccs, to 
 refuse an aiiiemiinent to either party where sucii 
 injtn'y would not occur, or where, if f)ccuring. 
 it coulil be compensated for. 
 
 /'(/• McDonald, ('. .!., i/issi n/iiKj, that the 
 defendant was guilty of undue anil unexplained 
 delay, and was not entitled to the ann'iidnient 
 applied for by reason thei'eof. 
 
 Sij)iiom/s if al. V. Fixliirifk, 7 R. ifc <■., 4.S7 ; 
 
 7 C. L. '1'., -i.SS. 
 
 8. Agreement respecting lands -Admln- 
 
 istratrx with will annexed, purchase of real 
 estate by, when personal assets of testa- 
 trix sufficient to pay oft' encumbrance - Sub- 
 sequent parol agreement to sell part of said 
 land, null — Compensation money for land, 
 right to, and how to be treated— 4th Rev. 
 Stats, c. 36, s. 40 — A. McMinn was nioit- 
 gagor of a lot of land. After his death tiie 
 mortgage was forech>sod, and his widow, Mrs. 
 McMiun, bought the lot in December, 184'J, for 
 fOO.'i, the sum of t;7-"> of this amount being 
 advanced by her daughter, Mrs. A. McKean. 
 Several small ])ayments were made by Mrs. 
 McMinn to Mrs. McKean, and in lsr)4, one part 
 of tlic land being sold, t'4(Ht were paid ovi'r out 
 of tlic ju'oceeds of the sale to Mrs. McKean, 
 •who soon afterwards agreed with Mis. McMinn, 
 that for tiie balance due, some H'lM or more, she 
 would take a small house on part of the land 
 with a small piece of land adjoining. Mrs. 
 McKean went into possession of tiie house and 
 land agreed upon in 1S.")4, and remained in jios- 
 session until 1S7-, when that land and iv consider- 
 able portion of tiie lialaneo of Mrs. McMinn's 
 land were taken by the (lovernment for public 
 purposes. 
 
 JIi/il, that out of the appraised value of the 
 lands paid into Court by the (iovernment, Mrs. 
 A. Kean was entitled to a sum e([ual to the 
 balance due her at the time of the agreement in 
 1854. 
 
 In re Hoxpkal for Insane, 2 R. & C, 501. 
 
 On appeal to the Supreme Court of Canada, 
 
 About 1837, Andrew McMinn devised his 
 lands to his wife, Mary McMinn, for life, with 
 remainder to Maria Kearney. Letters of admin 
 
 ' istration with the will annexed, were grunteil to 
 I the widow. At the time of testator's dciUli, tiie 
 lands Were miirtgaged for tlLVI. A suit tofure- 
 close this mortgage was ili.stituted after the 
 ' testator's death, and it was alleged tliat luiderii 
 a forechisure was obtained, and the piopeity 
 sold, and purchased by the adininistratiix for 
 i'!K)5. There was evidence that the adiiiiiiistia- 
 trix received personal assets of tlie lestiitor 
 I sufficient to iiave iiaid otl'the mortgage, iiiul slie 
 chosen so to ajiply them. The sum of t'7'.'.')5as 
 '. lent to the administratrix by Ann Keaii, her 
 ' daughter by a former marriage. Tlie ailiiiinis. 
 tratrix then sold the jiroperty to the public 
 authorities for £17.")0, out of which she |)iii(l her 
 daugliter €4(K). From IS.IS, the dauglitcr, witii 
 the leave of tlie administratrix. occu))iL'il aliout 
 one i|Uarter of an acre of the land, until in 187.1, 
 under tiicautliority of an Kxprojiriatiiui .\ct,siie 
 was ejected from it, the Commissioner tiikiiigin 
 all three acres and three-tenths of this piuiwrty, 
 the balance being in the occupation of Muiii 
 Kearney and her husband, Francis Kuiinity 
 (tlic a|)pellanls). Tiiese three acres ami liiree- 
 tenths were appraised at $2,310, and tliiit m\\ 
 was paid into Court to abide a decision as to the 
 legal or ei|uitable rights of the parties les] 
 lively. Ann Kean claimed a title to tiie '.viiuit 
 of the laud taken, under an alleged jiarol agree- 
 ineiit with her mother that she should liiive the 
 hind in satisfaction of tlS'-T), the residue uiipai'l 
 of the h)an of the t'l'lT^, and obtained a iiile )»•: 
 for the payment to her of the sum of .'?i.',3IO,tht 
 amount awarded as compensation for tiie Liiii. 
 In May, 1S72, the administratrix executtil an 
 informal instrument under seal, inir|MiilinL' to 
 be a leiise of her life estate to the ajipellaiitsin 
 the whole proiierty, reserving a rental of .r^* 
 a year and liberty to occupy two rooms in : 
 dwelling-house then occupied by her. 
 
 On a motion to make this rule absolute, several 
 atiiilavils were tiled, including those of liieap- 
 pellant.s. On the 18th .January, IS:."), tlioimitttr 
 was referred to a master to take evidoiae ami 
 report thereon, subject to such report litiii; 
 modiHeil by tlie Court or a .Judge. The muster 
 reported that the appellants had the solelefi! 
 and eiiuitable rights in the property. On iimtwn 
 to contirm that report the Court made anor.Iei 
 apportioning the .^-',310 between Ann KwinaiiJ 
 the appellants, the former being declared eiititkl 
 to be paid §1,015.61, and the latter, on filing 'M 
 written consent of Mrs. McMinn, tlie resiaueo! 
 the *-2,310. 
 
 Held, on appeal, 1st. That the administratra 
 having personal assets of the testator sntfieien^ 
 to discharge the mortgage, was bouml in >« 
 course of her administration to discharge f 
 
 ■ saii 
 
329 
 
 CONTRACT. 
 
 33 
 
 encuniHrancp, and that the parol agreement 
 maile liy lifi' with her ilauglitur was null and 
 void. 
 
 'Jnd. That when land is taken nnder autho- 
 rity of legislative provisions, similar to 4th 
 Rev. Stats. N. 8., c. 36, s. 40,^e< aeq., the com- 
 pensation money, as regards the capacity of 
 married women to deal with it, is still to be 
 regarded in K(inity as land. 
 
 K<arii<ii ft a/, v. Kean tt ctL, 3S. C. R., 332. 
 
 9. Agreement to purchase land — Part 
 
 payment— Rescission of contract without men- 
 tion of return of money paid— Money recover- 
 able— Wliero A. entered into an agreement to 
 purclwse land, and paid part of tlie purcliase 
 money to B., and it was subse(iuently agreed 
 between the j)arties that the l^rgain should be 
 rescinded, and nothing was said at the time 
 relative to tlie return of the money paid by A. , 
 k. '\» nevertiioless entitled to recover the amount 
 back fron) B. 
 Wilkin.'f, J., fllA'oiitiiif/, 
 
 Cnin/ilii/l v. //< iitli:r-:oii, 2 Thorn., ,'},']."). 
 
 10. Brand-Warrant J -Evidence of breach 
 
 of, as proof of failure of consideration— Plain- 
 titi's .sold to defendant a (jnantity of ti.sli, packed 
 in Ijarrels and luilf barrels, in.spected by one of 
 tlie plaiiititfs, not being a sworn inspector, as ! 
 provided l>y statute (R. ,S., 3rd series, cap. 85), i 
 anil by him branded "(Udf Herring, Split No. 1,'' 
 the statutory description of inspected lierring. ', 
 Before punliasing, defendant examined a few 
 barrels which were opened, and saw none 
 iinsniuid. The tish were shipped to Koston, and ', 
 on inspection there tiiey turned out bad, with i 
 the exception of four barrels, and were returned I 
 to Halifax, where they were again inspected. 
 There was strong evidence that tlie (isli, wlien 
 sold, (lid not correspond with the brand, and 
 the jury in answer to a (piestion put to them by | 
 the Judge, found that the fish, when sold, were ! 
 not as a whole, properly cured and merchantable ; I 
 bu^ to another question, whether the fisii were ! 
 fraudulently put up for the purpose of deception, | 
 they made answer in the negative. A verdict I 
 passed for the plaintiffs for §350 ; the claim ; 
 being about 81100. ' 
 
 Ml, that the brand, "Gulf Herring, Split, | 
 No. 1," amounted to a warranty that the fish; 
 were cf the quality commercially known under i 
 that denomination ; that it was not necessary 
 tor defendant to bring a cross-action on the 
 warranty, but that ho could give evidence of 
 fte breach of the warranty as proof of failure of 
 consideration, and that the verdict should be set 
 !«ide with coats. 
 
 Mader et al. v. Jones, 1 R. & C, 82, 
 
 11. Building, bond for performance of— 
 
 Quantum tneniit — In an action against the 
 principal, and sureties on a bond to the plaintiff 
 for the payment of the cost of a house, which 
 the plaintiff was to build for the principal, it 
 appeared that the work was not done in strict 
 pursuance of the agreement and specifications. 
 The plans referred to in tJie contract, and which 
 were part of it, were not put in evidence. The 
 person employed by the inspector named in the 
 contract, who was to superintend the work, was 
 superseded by another by plaintifl' without the 
 consent of tlie defendants. 
 
 //r/d, that plaintiff could only recover on a 
 qtiaiUiim meruit, and that, as there was not 
 sufficient evidence to enable tlie jury to deter- 
 mine how far tiie contrcic had been departed 
 from, an<l as the snreiies could not be Iwund by 
 the appointment of the new inspector, tlie ver- 
 dict for plaintiff must be set aside. 
 
 Filch V. RItrhit H al., 3 R. & G., 407. 
 
 12. Building contract -Liquidated dam- 
 ages— Ky a written agreement between plaintiff 
 and defendant, plaintiff agreed to repair a build- 
 ing owned by defendant, the work to lie com- 
 pleted by a certain day under a penalty of $25 
 per week for every week tiiat the building re- 
 mained unfinished after that date, said S25 per 
 week to be settled and stipulated damages for 
 delay. The contract was not completed at the 
 date specified, nor for some time after. The 
 plaintiff sued the defendant for .S.S84.25, the full 
 balance claimed to l)e due him under the con- 
 tract. 
 
 The defendant paid S1S4.25 into court and 
 claimed to set off §25 per week for eight weeks' 
 delay in completing the contract. 
 
 Tlie learned Judge below found the $25 per 
 week mentioned in the agreement to be liqui- 
 dated damages, but held that the work was sub- 
 stantially done at the expiration of three weeks 
 from the date mentioned in the agreement, and 
 therefore only allowed the defendant §25 per 
 week for three weeks. The defendant ap- 
 pealed from that part of the judgment appor- 
 tioning the damages. On appeal to a divisional 
 court the judgment of the lower court was sus- 
 tained. Defendant appealed to full court. 
 
 Held, that defendant was entitled to offset 
 the .S25 per week for the full period of eight 
 weeks, it appearing from the evidence that cer- 
 tain portions of the repairs were incomplete 
 until the expiration of that period. The fact 
 that the defendant moved into the house, before 
 the repairs were complete, was not a waiver of 
 his right to claim for the full period during 
 which the repairs remained incomplete. 
 
331 
 
 CONTRACT. 
 
 332 
 
 Judgment wns orrlered to he entered for the' 
 defendant for all the costs, including those in 
 the Court helow. 
 
 Norton v. Tohin, 20 N. S. R., 
 
 (8 R. & G.), 169 ; 8 C. L. T., 377. 
 
 13. Caveat emptor— Breach of contract , 
 
 — Action for non-accounting in the sum of £800» 
 and also for non-payment of a promissory note 
 for £100. Defendant pleaded fraud and niisrup- ; 
 resentation, and that the vessel, the subject of 
 the contract, had not been completed by plaintiff 
 according to tlie terms of tlie agreement between 
 them, but was unseawortiiy, and also a set-oH" 
 for expenses incurred in conaetiuence thereof. 
 
 It appeared that plaintiff, being engaged in 
 building a vessel in .Tuly, 1804, transferred her, 
 while on the stocks, to defendant by bill of sale, 
 and at the same time gave him a lease of the , 
 building yard. The vessel was completed by | 
 defendant and in July, 18(55, was delivered to 
 him and he signed an agreement to pay for her. 
 There was no warranty required or given, and . 
 no proof of any fraud or misrepresentation on 
 the part of plaintiff. ' 
 
 II(/(I, that as the defendant had liad tlie fullest ' 
 opportunity of inspecting tlie vessel wiiile in 
 progress of completion, and of exercising his 
 own judgment upon iier, the maxim ran at ( mplor 
 applied, and he was excluiled from giving evi- 
 dence as to her being unseawortiiy. 
 
 A'so, that it was not open to the defendant to 
 impeach the note unless there was a total failure 
 of consideration, iiis proper remedy for any par- i 
 tiai failure )>eing by cross-action. I 
 
 Al--<o, that evidence under the plea of set-oflFi 
 was properly excluded. 
 
 /intndii/c V. Ddaniy, '2 N. S. D., 02. 
 
 14. Charter-Party— Agent's authority- 
 Ratification of agent's acts ^ Defendants in- 
 structed tlieir agents at New York to charter a 
 ship to carry certain goods thence to Sydney, ' 
 C. B. The agents chartered plaintiffs' sliip, an<l 
 the voyage was cariie<l out, and tlie goods iluly 
 delivered and received by defendants. On the 
 way to Sydney the vessel called at Halifax, I 
 where one of the defendants, wlio iiad previously ! 
 received the charter-party, visited her. He 
 was also present at Sydney when the goods were 
 delivered. On neitlier occasion did he make ! 
 any olijection to the freight ]iayal>Ie under the 
 charter, but subsequently refused to pay it on ! 
 the ground that the rate was too high, and that 
 his agents had exceeded their autiiority in enter- 
 ing into the charter-party at that rate. 
 
 Hd'l, that not having made any objection 
 either at Halifax or Sydney, though fully 
 acquainted with the rate of freight agreed to be 
 
 paid, and having received the full benefit oi the 
 contract, he had tliereby ratified it, and must 
 fulfil his obligations thereunder. 
 
 Loomer tt al. v. Starr el al., .3 N. S. D., 4,')(| 
 
 15. Charter-party — Entire voyage -a 
 
 vessel M'as chartered by defendants "for tiiefol. 
 lowing voyage, viz. : From Halifax to Montreal, 
 there to discliarge the cargo laden on boiinl ami 
 to load a return cargo, and thence to proceed to 
 St. John's, Newfoundland, or to Halifax, at the 
 opticm of the charterers. If ordered to St. 
 John's, Xewfoun<llanil, then at said ])oit to dis. 
 charge cargo and load a return cargo of dry fish 
 in bulk for Halifax, and on final deliv>ry of 
 return cargo at Halifax to end tlie voyage,'' the 
 charterers to pay on the return of vessel to 
 Halifax tlie sum of Is. 4d. per net cwt. for 
 sugar to Montreal ; 2s. per barrel for Hour to 
 Halifax or St. John's, and from the latter port 
 9d. per qtl. for fish to Halifax. After the 
 plaintiff, who was master and agent of the 
 vessel, delivered the cargo at Montreal, it was 
 agreed between tlie plnintitT and defeiidaiits, 
 and such agreement was indorsed on the cliartw 
 party, that in consideration of the sum of i'i.i 
 the plaintiff would proceed from Montreal to 
 Harl)or (irace, Xfld., and load his return cargo 
 tjiere, or at .St. John's, as the chi'rterer.s sliouU 
 direct. The vessel loaded at St. .lijliir.<, awl 
 was lost on her voyage from thence to Halifax. 
 H'kl, that it was an entire voyage, and that 
 the plaintiff was not entitleil to recover. 
 Wilkins, J., dUxentimj. 
 
 Leratta v. Salter tt al., 2 Thom., 3i'. 
 
 16. Common speculation — Broken off- 
 Party authorized at first to enter into negotia- 
 tions cannot, after broken ofi', renew on his 
 own account without notice to his associates- 
 Wliere a party lias been autliorized to enter into 
 a speculation on tlie joint account of liiiiiself 
 and others, and the negotiation has been broken 
 off, he cannot afterwards renew it on his o«ii 
 account, and purchase for liis own heiielit, with- 
 out first notifying the other parties, so as to 
 give them an opportunity of uniting with him 
 in the purcha.se it so di.sposed. 
 
 Allan ef al. v. MrlLffn/, 1 Old., l-'O. 
 
 II, Conflicting Evidence- The plaintiffs 
 
 and defendants lieiiig interested in certain gold 
 mining areas, and Jiaving certain claims against 
 the government arising in connection tlierewith, 
 it was agreed between all the parties coiiceineJ, 
 to refer the matter to arbitration. The plaintiffs 
 alleged that in prosecuting their claims before 
 the arbitrators, they rendered such services to 
 the defendants as enabled tliem to successfully 
 
333 
 
 CONTRACT. 
 
 334 
 
 Mtablish tlicir right to a share in the award, and 
 that, for tiieso services, as well as for a portion 
 of the legal expenses ineurroil, the defendants 
 
 promisei 
 
 1 to reimbnrse them. This two of the 
 
 ilefonilants denied, and the evidence on this point 
 was very conflicting. There was no evidence 
 that at any one time, all the defendants being 
 present together, or tliat each of them separately, 
 made any such promise to the plaintilFs. The 
 defendants were not in any way responsible as 
 co-piu'tnci's. 
 
 HM that the verdict for pluintififa must be set 
 aside. 
 
 Dkhi it al. V. De Wolj'v. et a/., 1 X. S. ])., '224. 
 
 18. Consideration —Warranty— Authority 
 
 of agent -Wliere tiie plaintitl', having merely 
 aiiautliority as agent of tiie patentees of a cer- 
 tain invention to make proposals or offers to 
 suoii persons as he should think fit, to bring the 
 inventinii into use, receiving from tlie patentees 
 oiiefoiirtli of the royalties or profits for his ser- 
 vices, entered into an aj.reement with tlefendant 
 wiiereiii it was recited that the patentees had 
 disposed of one-fourth interest in tlie patents to 
 piaintitf, and whereby plaintiff disposed of one- 
 lialf his interest in the patents to tlie defendant 
 in consideration of the sum (jf .SIMX), $4()0 of 
 wliiili was afterwards paid, 
 
 //(/(/, tliat the verilict in favo'- of the plaintiff 
 in an action brought to recover the balance of 
 the consideration money couhl not be sustained 
 without jiroof that the defendant a&sented to tlie 
 agreement witli full knowledge of the only in 
 terest to wii.ch piaintitf could lay claim in rela- 
 tion to the patents. 
 
 QiKifn, wlicther the piaintitf could succeed 
 even after bringing home sucli knowledge to 
 defeuilaiit. 
 
 Wilkins, J., (li.isciifhiii, although his opinion 
 ilid not nec^essarily conflict with tlie above pro- 
 positi(ni, as he considered tliat "the parties, 
 wiien tliej' contracted, had the same knowledge 
 of all the facts." 
 
 HarriiKjIon v. lii'i/nohh; 1 R. & C, l.'U. 
 
 19. Consideration on agreement for sale 
 
 «f lands— Failure of— iividence — In order to 
 recover back money paid by plaintifi' under an 
 agreement for sale of lands to him on the ground 
 of failure of consideration, plaintiff must give 
 evidence of the terms of the agreement to en- 
 litle him to recover. 
 
 McDonald v. McDonald, James, 41. 
 
 20. Construction of— Improper rejection 
 
 of evidence—,]. C. (J., being indebted to the 
 piaintitf, tdlegraphed defendant as follows: "I 
 
 owe Daniel H. Pitts ?1 ,400. • ♦ • Will give 
 you deed of property and confession of ju<lgment 
 if you accept amount," &c. Defendant on the 
 same day replied : " Forward me the security 
 and will accept draft at the time you mention." 
 The orders were presented for acceptance, which 
 was refused on account of the non-arrival of the 
 securities, but defendant said that when the 
 securities arrived he would accept. The title 
 to tlie property referred to was in A., to whom 
 a balance of .iJ.SOO was due on account of the 
 purchase money. Plaintiff, in order to complete 
 the title, gave his note to A. for the amount so 
 due and procured a deed to be made in the 
 name of defendant. The deed was tendered to 
 defendant, but he refused to accept, partly on 
 account of the delay and partly because the 
 title of the property was not in J. C. C. at the , 
 time of tlie request and promise to accept. 
 
 There was some evidence of a distinct contract 
 between plaintiff and defendant that if the for- 
 mer would procure the deed of the property the 
 latter would accept, but tlie learned Judge who 
 tried the cause instructed the jury that the only 
 contract was tha': expressed in the telegram of 
 J. C. C, and defendant's reply thereto, and that 
 this was a contract upon which the plaintiff 
 could not maintain an action, and withdrew 
 from the consideration of the jury the evidence 
 as to a contract between plaintiff and defendant 
 and the (piestion as to the reasonableness of the 
 delay. The jury found for defendant, and a 
 rule for a new trial was taken under tlie .Statute. 
 
 //(•A/, ;)fc8ir W. Young, C.J.,' Johnstone, K.J., 
 and DesBarres, J. (Dodd and Wilkins, .IJ., dis- 
 •icn'inij), that the rule for a new trial must be 
 nia<le absolute. 
 
 Pi/I.-: v. Tay/or, 2 X. S. D., ;}78. 
 
 21. Construction of figreement to release 
 
 a mortgage — Plaintiff brought action to redeem 
 a mortgage, setting out an agreement in writing 
 by the defendant to release it on being paid one 
 half of tlie principal of the mortgage and 
 interest in twelve months, plaintiff agreeing to 
 give up certain claims against the defendant. 
 The master construed the agreement, according 
 to plaintiff's contention, as re(juiriiig payment 
 of one-half the lialance due at the time of the 
 agreement, while defendant contended that it 
 meant one-half the original principal. Evidence 
 was given in support of both constructions. 
 
 Ilihl, that, independently of any evidence, 
 the master's view of the agreement was incor- 
 rect, and that there was no necessity of referring 
 the case back to the master, as the Court had 
 the materials for ascertaining the amount due. 
 Spinney v. Pwj-i/ey, K. E. D., 398. 
 
335 
 
 CONTRACT. 
 
 836 
 
 22. Constraction of agreement - Rednclne 
 
 verdict or new trial — Tlie (kfontlanta entfreil 
 into tlic following iigrecini'nt with tlio plaintitrs : ' 
 "And the said L. Hiirkner and Francis Kllers- | 
 haiisen do hereby, in considenitioii of the 
 premises, promise and agree, on or before the 
 first day of .Inly, A. 1)., 18()8, to form a com- 
 pany to work a coal mine within said area and 
 elsewlicre, and for otlicr pnrposes, and to deliver 
 to said f. Hniiter Dinar and Tliomas R. Fraser, 
 at that date, paid np shares in such company to 
 the amount of .^SOOO ; and, further, that in the 
 event of said L. Burkner and Francis Kllers- 
 Iiausen not forming such company, and liaving 
 the same in practical operation according to 
 law, and delivering such paid up shares as afore- 
 said, at the datt? aforesaid, tliat then tlie said 
 L. Hurkner and Francis Kllersliausen, tlieir ludrs 
 or assigns, shall at that date pay to tlie said I. 
 Hunter Duvar and Tliomas R. Fraser tlie sum 
 of .*SfKM»in cash." 
 
 Tlie defendants obtained an Act of incorjiora- 
 tion in the .State of Maine, ami also another in 
 the Province of Xova Scotia, but tliey did not 
 comply witli tlie terms of tlie latter Act, which 
 conscijuently never took effect. Tlicy formed 
 a company, issued stock, and went into opera- 
 tion under the Maine Act. Plaintiffs declined 
 to accept tlie stock issued under tlie Maine Act, 
 and brought this action for tlie purcliase money 
 as payable in cash. Venlict for plaintiff's for 
 full amount. 
 
 Hi Id, tliat defendants had fulfilled the agree- 
 ment as far as " forming a company and having 
 the anie in practical operation " was concerned, 
 but tliat the sliares were not such as were con- 
 templated by the agreement. New trial ordered 
 unless plaintiffs consented to reduce tiieir ver- 
 dict to such an amount as the Court considered 
 chares under a Provincial Act, with the usual 
 statutory provisions, would be worth. 
 DxLvar et al. v. liurkmr et nl., 2 X. S. D., 460. 
 
 23. Contract made with agent — Agent's 
 
 employees — Power to do certain acts — Ordin- 
 ary course of business— Liability of principal 
 in case of loss — A number of cases of wine were 
 delivered to S, & Co. , defendants' agents, at the 
 port of Antwerp, to be forwarded to plaintiff at 
 Halifax, N. S. The bill of lading was signed by 
 S. & Co. , pp. G. K. , and described the goods as 
 shipped in good order and condition. The 
 goods were shipped from Antwerp by a steam- 
 ship running to Liverpool, G. B., and on their 
 arrival at that port were reshipped on board 
 one of the defendants' steamships for Halifax. 
 On their arrival, plaintiff M'as notified of the 
 fact by C. & Co., defendants' agents at Halifax, 
 
 nnd was requireil to pay the freight and take 
 delivery. C. & Co. also demandeu and received 
 from ])laintiff his share of a general average loss 
 eonsecjuent to an accident to the ship on the 
 voyage. On examination of the goods previous 
 to delivery, it was found tliat several ef the 
 cases had been tampered with, and a number of 
 bottles of wine emptied of their contents. (!, 
 K., by whom the signature of S. Sc Co. was 
 affixed to the bill of lading at Antwerp had no 
 written authority to do so, but was the chief 
 clerk and proxy of the firm, and acted in the 
 usual course of business. 
 
 //i/fl,/)ir James,.!., that the bill of Imliiig 
 having lieen produced by the plaintitf at the 
 request of defendants' agents at Halifax, and 
 liaving been recognized by them, and tiicy hav- 
 ing demanded and received from jilaintitr his 
 proportion of the general average loss, tlie 
 paper, whetlier jji-operly signed or not, must 
 be treated as tlie contract uiiiler wliicli ikfeiid- 
 ants received and carried tiie goods; tlwt 
 defendants were bound by the admission in the 
 bill of lading that the goods were received in 
 good order and condition, and the goods having 
 been tanijiered with while in their posses.si(m, 
 in the absence of eviilence to bring them within 
 the exemptions in the bill, defendants were 
 liable. 
 
 Per McDonald, J. — Tliat the appointiiieiil of 
 .S. & Co. as defendants' agents authorized them 
 to perform all things usual in the line of busi- 
 ness in which they were employed, and involved 
 power to do particular acts by others within the 
 scope of their business. That (!. K. as their 
 chief clerk was competent to sign the iiaiiiu of 
 the firm to bills of lading in the ordinary course 
 of business, without any written authority to 
 do so. 
 
 That the signature to xhc I'H of lading having 
 been proved to have been made in the usual 
 course of business, must Ije taken to have been 
 authorized by the defendants, especially as the 
 evidence showed that it was afterwards adopted 
 and acted upon both by S. & Co. and by the 
 defendants' agents in Halifax ; that defendants 
 were bound to Viring themselves within the 
 exemptions contained in the bill of lading, and, 
 having failed to do so, were liable. 
 
 Bonne v. The Montreal Ocean S. S. Co., 
 
 7R. &G.,3K; 
 7 C. L. T., 175. 
 
 24. Contract not to be performed witblo 
 
 a year— Statute of Frauds— Defendant, yvevi 
 ous to the Ist of April, 1876, engagcc! with 
 plaintiff by parol, as clerk, at a fixed rate per 
 annum, with a share of profits of a separate 
 
337 
 
 CONTRACT. 
 
 338 
 
 iiranchof thebuHincss. On February itth, 1877, 28. Contractor for thc Construction of a 
 
 (U'feiiiliint ankod for and obtained a fortnight's Branch Government Railway, held to be an 
 It'iive of iilweiice, wlien an accounting was gone "employee" within Dom. Acts, 1881, c. 25, a. 
 intn, ami plaintiff gave defendant his promissory ! 109 — The Dominion fiovernment Railways Act 
 note, (which lie afterwards paid), for the balance of 1881, c. 2.">, s. 100, prctvides that " no action 
 of his salary up to tiie end of the year, April Ist, ' shall be brought against any officer, employee or 
 1S77. Defendant did not return, and phiintitT servant of the department (of Kailways and 
 lirmight action for non-fulfilment of his contract Canals) for anything done by virtue of his ortice, 
 of service and for money had and received. j service or employment, except within three 
 
 HM, that although the plaintitl could not montlis after the act committed, and upon one 
 recover on the co»mt for tlie non-fulfilment of month's previous notice tn writing." 
 (iefeiiilant's contract, as that was not to be per- Defendants entered into a contract with the 
 formed witliin a year, he could recover on thc ' Crown, represented by the Minister of Railways 
 muiiev count, us the defendant had received pay- and Canals, for the construction of a branch of 
 iiieiit fur services to be performed witliin a few j the Intercolonial Railway at Dartmouth, N. S,, 
 weeks, (from tiie time of giving the note), and \ and in the prosecution of tlieir work under the 
 
 wliicli services defendant diil not render. 
 
 Wkr V. LflM,,, ;j R. & C, 209. 
 
 23. Contract to advertise for a year— 
 
 Pliiintift' declared on a contract to publish an 
 aihertist'iuent for defendant for a year to occ\ipy 
 11 stipulated s])ace for .'iii'iOO per annum, defendant 
 to have thc j)rivilege of changing thc advertise- 
 ment. I'icvious to the expiration of the year 
 ilefenilant ordered the advertisement to be dis- 
 continued. No furtlier advertisement was pub- 
 lished for defendant, and the space was filled 
 witii other matter. 
 
 IJild, that plaintitT was entitled to recover 
 for the wliole year, including the period during 
 which no advertisement was published. 
 
 Annand v. lireininii, .S R. iV G., >32. 
 
 26. Contract to carry cargo after close 
 
 of season— Breach of, not excused by master 
 deeming it imprudent to set sail— When the 
 owner of a vessel contracts to carry a cargo after 
 the customary season for leaving the port, he is 
 not excused because the master deems it impru- 
 dent to set sail. 
 
 Jionkn et al. v. Churchill, 2 Thorn., 187. 
 
 27. Contract to deliver machine In work« 
 
 ing condition— Plaintiff contracted to deliver to 
 defendant a mowing machine, to be delivered in 
 a satisfactory working condition, and brought 
 the maching to defendant's field where, in the 
 course of a trial, which he proceeded to make, 
 a wheel became broken, which plaintiff promised 
 to replace. Five witnesses swore that the wheel 
 was a material part of the machine, and there 
 was some evidence that it was not. 
 
 Held, that plaintiff could not recover the 
 price, as the machine was never delivered in a 
 satisfactory working condition. 
 
 Lawlor v. Mumford, 4 R. & G., 35. 
 
 contract entered upon the phiintitf 's hind, 
 
 An action having been brought against defen- 
 dants for breaking and entering, 
 
 Jhld, that defendants wer'j "employees" 
 within the meaning of the Act, and entitled to 
 the protection given therein. 
 McDonald, C. J., diiixiniiiiij. 
 
 Kmrmnj v. Oah ■•< if al, 20 N. S. R., 
 
 (8 R. & (J.), ;io. 
 
 29. Corporation — Seal — Resolution of 
 
 governing body— "It is a general principle 
 that a corporation aggregate cannot be bound by 
 anything in tlic nature of an agreement relating 
 to real property, except uniler seal." 
 
 " There arc cases wiiere a corporation may be 
 bound by a icsolution of the governing body, 
 even in case of a sale or purchase of Uuid, as 
 where the corporation has agreed by resolution 
 to purchase it and has entered into possession," 
 etc. 
 
 Jinm// V. Sinclair, 1 R. & C, .392. 
 
 30. Corporation— Contracts with— Jfeces- 
 
 sity of sealing — Absence of, must be pleaded 
 — Defendants were created a body corporate for 
 the purpose of being invested with the title of 
 the County Court House, Halifax, with power 
 to enlarge and improve the building for the pub- 
 lic use and to provide all necessary accommoda- 
 tion for the Courts, the Municipal Council, etc., 
 and to make such contracts as were necessary for 
 that purpose from time to time. 
 
 Defendants employed plaintiffs verlmlly, to 
 make certain alterations and improvements in 
 the building, coming within the class of work 
 that they were authorized by the Act of Incor- 
 poration to perform. 
 
 HeM, following Clarke v. Cuck/ield Union, I 
 App. Cases, that as the work done was within 
 the ordinary range of duties of the defendants a> 
 contract under seal was not required. 
 
 Also, that if the absence of a contract under 
 
339 
 
 CONTRACT. 
 
 340 
 
 seal would havj boen a Talid defence it must | cured legislation which rendered it impossilile 
 
 have been pleaded in order to enable defendants 
 to avail themselves of it. 
 
 McIntoMh et al. v. Coinmi^iioncrx of Court 
 House, Halifax, 20 N. S. R., (8 R. & G.) 430 ; 
 
 9C. L. T., 118. 
 
 for them to hand over bonds of the character 
 stipulated. Defendants relied on one of the 
 statutes so procured, namely, the Act of the 
 Legislature of Nova Scotia, cap. 66 of 1879. 
 
 Held, that the Act aflForded no defence to the 
 plaintiffs action for damages for the nou-fulfil. 
 ment of tiie agreement. 
 
 After pleading to the declaration, defendants 
 
 added pleas as to one half the amount of tlie 
 
 mortgage bonds claimed, setting out, in different 
 
 assigned the same to the 
 
 31. Damages for breach of— Pleading— 
 
 Impossibility— Plaintiff set out in his declara- 
 tion an agreement between one Harry Abbott 
 
 and the Government of Xova Scotia for the con- f„rn,8^ that plaintiflF ha.l _ 
 
 struction and equipment of the so-called Eastern Government of Xova Scotiarand given Hon 7 
 Extension Rai.' way from New Glasgow to the c. Hill, then Provincial Secretary, authority to 
 Strait of Canso.a transfer of Abbott's interest in ^ .-eeeive them, and that the Canada Improvemont 
 said contract to the Halifax and Cape Breton Company ha,l accepted tiie order and becme 
 Railway and Coal Company, a contract between ,,ound to deliver said bon.ls to the Covernnunt 
 the company last mentioned and the Canada „£ y^^a Scotia, and that the suit was not brought 
 Improvement Company, by which the latter !„„ ,,ehalf of the said Government, or with tieir 
 were to construct and equip the road, an.l a | eo„sent. Plaintiff repaed, denying the fact of 
 
 that there was no con- 
 
 e assignment was inaile 
 
 subject to a condition that there should lie no 
 
 Scntia 
 
 plaintiff, which 
 
 condition was violated. The Court, having 
 
 . , , power under the rule to determine the fact, found 
 
 tions, including a suit by the plaintiff to recc er | that the plaintiffs version of the agreement to 
 damages or alleged breach of the agreement i a.^ign was sustained by the evidence, an.l gave 
 made by h.n, for the construction of the road, : j„ag,„ent for the plaintiff, adding,- under ti>e 
 and a final compromise an.l settlement embodied ■■ power given in the rule to increase the verdict, 
 m the agreement upon which the present action | -interest from the date of the agreement between 
 was brought. By this agreement the Canada . defen.lants and the Government, which resulted 
 Improvement Company contracte.l to deliver to 
 plaintiff, so soon as the same could legally be 
 
 contract betweensaid Canada Improvement Com- ' the assignment, allegincr 
 pany and the plaintiff, un.ler which the plaintiff sideration, an.l that the 
 
 was to construct and equip the road, receiving, s^i^je^t to a condition tl „ 
 
 as the work progressed, payment in casli and legislation by the Legislature of Nova Sc: 
 bon.lsof the Halifax an.l Cape Breton Railway adverse to the interests of the plaintiff, wl 
 
 and Coal Company, as in tlie agreement set forth. 
 The declaration then set out a series of transac- 
 
 in the legislation under which it became impos- 
 sible to perform the covenant to deliver the 
 issue.l (to which end the two companies,— both bon.ls. 
 
 being parties to tlie agreement an.l .lefendants a,:,,jor,, v. The Halifax and Cape Bnton 
 in the action, -ovenanted to use every dili- Bailwn,/ and Coal Co. ef al., 4 R. & G., 4.36. 
 
 gence), eighty thousand dollars in good, suflicient 
 and available first mortgage bonds .)f said Halifax 
 and Cape Breton Railway and Coal Company, 
 which should be a first lien on the Pictou Branch, 
 — to be handed over by the Dominion (Govern- 
 ment in aid of the construction, — on the Eastern 
 Extension, and also on the said Halifax and 
 Cape Breton Railway and Coal Company, ani' 
 the property mentioned in the company's Act of 
 incorporation. The Halifax an.l Cape Breton 
 Railway and Coal Company also covenanted for 
 the han.ling over .)f said bonds by the Canada 
 Improvement Company at the time and manner 
 and of the ciiaracter and description stipulate.l. 
 The agreement contained covenants and on.li- 
 tions on the part of plaintiff as to tiie perform- 
 ance of which there was no dispute. The 
 breaches alleged were that the .lefendants failed 
 to deliver the bonds as stipulated, that tliey di.l 
 not use .lue diligence as stipulated, and that they 
 
 Affirmed on appeal to the Supreme Court of 
 Canada, 16th Feliruary, 1885, Cas. Digest, 434. 
 
 Leave to appeal to the Judicial Committee of 
 the Privy Council, refused April 3id, 1886. 
 
 32. Evidence of— Secondary evldence- 
 
 Plaintiflf was employed by tiie manager of the 
 .lefen.lant company in August, 1874, as an engi- 
 neer, and on the 21st September, 1874, the 
 manager wrote him thai his services would not 
 be required after the 26th September, to which 
 .late his account was made up an.l paid. On 
 October 6th, 1874, the secretary, in London, 
 wr.)te to the manager in London.lerry, iitstiuc- 
 ting him to cancel the notice to leave above- 
 mentioned an.l stating that it had been agreed 
 that plaintiff should receive pay from the date 
 of his predecessor's departure, at five dollars a 
 day, " the term of his permanent service to be 
 
 had entered into agreements and sought and pro- ! fixed by the board when the salaries of other 
 
841 
 
 CONTRACT. 
 
 342 
 
 officers were discussed." This letter was shown 
 to the plaintiff by a clerk of the company, who 
 gave plaintiff a copy, which was compared with 
 the original in presence of the manager. 
 
 //(/fZ, that the secondary evidence of this 
 letter, on non-production of the original, was 
 properly admitted by the Judge, and that witli 
 a letter of similar tenor, bearing the same date 
 and addressed to the persons conducting the 
 company establishment at Londonderry, it war- 
 ranted tl'.e verdict found for the x)laintiff on the 
 basis of a permanent engagement. 
 
 Gray v. The Steel Comjxiny of Canada, 
 
 1 R. &G.,434. 
 
 33. Fraud — Parol evidence- Principal 
 
 and agent — Defendants contracted witii plain- 
 tifT for the purchase of a steamboat, the nego- 
 tiations for the purchase being carried on 
 partly by letters between the defeiulants on 
 the one hand and the plaintiff and his agent 
 on the other, and partly by verbal communi- 
 cation between the defendants and the plain- 
 tiff's agent. Tiie boat was delivered at Sum- 
 merside, Prince Edward Island, to the plain- 
 tiff's agent (who was authorized by the 
 defendants to take delivery of her there for 
 thcMi), and l)y him taken to Pictou, the domicile 
 of the defendants. Tlie defeiulants examined 
 her inunediately on her arrival at Pictou, and 
 finding tliat she did not answer the representa- 
 tions made of her by the plaintiff''s agent, 
 forthwith notified both the plaintiff and his 
 agent tiiat they would not take delivery of her. 
 An action was brought for the price, to which 
 the defendants pleaded never indeljted, never 
 delivered, and misrepresentation and fraud on 
 the part of the plaintiff and his agent, etc_ 
 The learned Judge who tried the cause permitted 
 evidence to be given of the verbal representa- 
 tions of the character of the boat made ))y the 
 plaintiff' 's agent to the defendants, and the jury 
 foir.id a verdict for the defendants on the pleas 
 of fraud and misrepresentation, etc. (iross 
 misrepresentation by tiie plaintiff's agent of the 
 character of the boat were distinctly proved, 
 but there was no proof that the plaintiff himself 
 made any false representations, or was aware at 
 the time of those made by !)• .igent. 
 
 Held, first, by all the Judges, tiiat although 
 the contract was partly in writing, parol evi- 
 dence was projierly admitted to prove the fraud. 
 
 Secondly, by all the Judges, that tlie jury were 
 justified in finding fraud, as tiie principal is 
 bound ijy the declarations of his agent, antl the 
 fraud of the agent was therefore, in law, the 
 fraud of the principal. 
 
 Thirdly, by all the Judges, that the fraud 
 
 was such as to justify the defendants in rescind- 
 ing the contract. 
 
 Fourthly, by Young, C. J., Johnstone, E. J., 
 DoddandDesBarres, JJ. (Wilkins, J.,rf(.y.se?i^j«(/), 
 that the notification given by the defendants to 
 the plaintift'and his agent was a sufficient rescind- 
 ing of the contract, and that it was not necessary 
 in order to rescind it tliat the defendants should 
 return the ooat to 8uniinerside, or oft'er to return 
 her thither. 
 
 Poiie V. The Pictou Steamboat Company, 
 
 2 Old., 18. 
 
 31. Fraudulent will not be aided by the 
 
 Court — In an action for money had and received 
 the defendant pleaded, by way of set-off, a pro- 
 missory note given by plaintiff to defendant. 
 Fr.un the evidence it was apparent that the 
 transactions between the parties, out of which 
 the present cause of action arose, were intended 
 to defraud the creditors of plaintiff, and that 
 plaintiff and defendant were in pari delicto. 
 
 Held, that such being the case, the plaintiff 
 shouhl not be aided by the Court in enforcing 
 his contract, and the verdict for him must be 
 
 set aside. 
 
 Blake v. Stewart, 2 N. .S. D., 70. 
 
 35. Gaming contract — Involving infrac- 
 tion of law— Notice to atakeholder not to pay 
 
 ! — Wliere a contract is made to run a race, in- 
 volving an infraction of law, and one of the 
 
 i depositors, being a party to the wager, notifies 
 the stakeholder while the money deposited as 
 a stake is in his hands and ))efore the race is 
 
 j run, not to pay it over to tlie other party to the 
 wager, the stakeholder in paying over the money 
 
 ■ does so in his own wrong, and is responsible for 
 it to the party so notifying, or his personal repre- 
 
 I sentaiives, w\io may bring an action to recover 
 
 lit. 
 
 I Ryerxon v. Derby, 1 R. & C, 13. 
 
 36. Guarantee— Bond given to Munici* 
 
 pality as security for officer — No seals affixed 
 by sureties— Affixed by principal before deliv- 
 ery — Sureties estopped from setting up want 
 of seals after acceptance of bond — Defendants 
 signed their names as sureties to an unexecuted 
 bond for the faithful discharge by M. of his 
 duties as clerk and treasurer of the plaintiff 
 Manicipality, but affixed no .seals. M. subse- 
 ([uently attached seals and his own signature to 
 the bond and forwardeil it by mail to the War- 
 den of the Municipality. 
 
 Held, per Weatiierbe, J., and McDonald, J., 
 that the by-law under whicii the bond was 
 taken was intra "iren, and tiiat the defendants 
 were estopped from denying their seals after 
 
343 
 
 CONTRACT. 
 
 344 
 
 the plainti.T lincl accepted the instrument from 
 M. as security. 
 
 Per McDonahl, C. J., and Ritchie, J., that 
 defendants were liable as guarantors on the 
 instrument, having signed it with the knowledge 
 that it was to be used as security. 
 MtmicipaJity of Shellmriie v. Marihall tt al., 
 
 7 R. & O., 171 ; 
 7C. L. T.,248. 
 
 On appeal to the Sii(>reme Court of Canada, 
 Held, Henry, J,, henitanle, that as the re- 
 spondents had proved a prima farie case of a 
 bond properly executed on its face, and neither 
 the subscribing witness nor the principal obligor 
 was called at the trial to corroborate the evi- 
 dence of the appellant who had not negatived 
 the due execution of the bond, it being quite 
 consistent with his evidence that it was duly 
 executed, tlie onus of proving want of execu- 
 tion was nf)t thrown off the appellant, and the 
 respondents were entitled to recover. 
 
 Marshall v. Municipality of Shelhurnc, 
 
 14 S. C. R.,737; 
 7C. L. T., I. TO. 
 
 37. Guarantee - Consideration not set out 
 
 in declaration — Demurrer — Action upon a 
 special contract in the nature of a guai'antee 
 alleging " that defendant gave a special promise 
 and made a special agreement to pay the plaintiff 
 the amount due from one 1). McI., the father of 
 defendant."' Defendant demurred because among 
 other grounds the consideration for making or 
 giving tlie special promise or agreement was not 
 set forth in either countof plaintiff's declaration. " 
 //<:ld, that there should be judgment for de- 
 fendant upon the demurrer. 
 
 Campbell v. Mclmar, .3 N. S. D., 287. 
 
 38. Guarantee -Construction of— Defend- 
 ant, in writing, requested plaintiff's firm to 
 supply to F. R. " the outfit for his boat," then 
 being built by F. R. and D. R. jointly, and 
 promised to see that they got their money. 
 The goods were first charged to F. R., but 
 afterwards to F. R. and D. R. jointly, to whom 
 other goods were sold, being supplies for a fish- 
 ing voyage. Several months after the date of 
 the guarantee a balance was struck at $303. 10, 
 for which a joint and several note was given by 
 F. R. and D, R., who also executed a bill of 
 sale of the boat to plaintiff's firm, the consider- 
 ation mentioned being $400. The plaintiff 
 stated that the note was only taken as an ack- 
 nowledgment of the debt and that both the note 
 and the bill of sale were held only as security. 
 
 I/eld, James, J., dinKenfinf), that the Judge 
 was warranted, as the bill of sale contained no 
 
 release, in finding for the plaintiff for the value 
 
 of the goods supplied as outfit for the boat only. 
 
 Scott v. Crockett, 2 R. & 0., 410; 
 
 2C. L. T.,107. 
 
 39. Guarantee— Construction of— Pleading 
 
 — Plaintiff was applied to by D. J. M., defend- 
 ant's son, for goods on credit to a large amount. 
 The goods were selected, but plaintiff declined to 
 deliver them unless he was furnished by defuiul- 
 ant with a guarantee to cover any transactions 
 which plaintiff might have with the son. The 
 required guarantee was given on October l.'kh, 
 18B5, between which time and December .Slat, 
 1806, D. J. M. was debited with goods amounting, 
 with interest, to the sum of §934.04, and crudit- 
 
 ' ed with payments during the same time amount- 
 ing to .*i72f».50. The balance of .$207. ")4, tiius 
 left, was disposeil of by being transf<irrcd to tlie 
 debit side of an account with the finu of 
 
 ; McDonald & Cameron, of whi(^h D. J. M. then 
 became a member, and upon the credit side of 
 the latter account several payments were ere- 
 
 , dited t.T a larger amount than the balance so 
 transferred, at a time when nothing was due 
 from the firm. 
 
 To the plaintifTs declaration on the guarantee 
 defendant pleaded, among other things, tiiat 
 D. J. M. fulfilled to plaintiff the contract for 
 which defendant became his surety. 
 
 ffeld, that the defendant was entitled to 
 
 I judgment. 
 
 ! Held, aluo, that the defence set up in the pica 
 was sufficiently pleaded. 
 
 Goods having been selected by D. J. M., and 
 their delivery withheld until the guarantee was 
 given, and there being thus material upon wiiich 
 
 I the guarantee might operate in the plain literal 
 
 I meaning of the language contained in it, 
 
 Semhle, that the guarantee applied to the 
 
 I goods so selected, and was not a continuing 
 
 ' cue. 
 
 McDonald v. McDonald, 2 N. S. D., 136. 
 
 40. Guarantee— Fraud- C. being largely 
 indebted to plaintiff an agreei.jejt was entered 
 into in December, 1869, that on or before May 
 Ist, 1870, all accounts should be settled and 
 adjusted between them, and that then C. should 
 pay to plaintiff the full amount found due to 
 him on such adjustment in three and six months 
 from the said May 1st. It was further stipu- 
 lated in the agreement that in event of C. tailing 
 to adjust and settle the accounts on or before 
 the day mentioned, then plaintiff might cause 
 
 I an adjustment to be made by one F. by May 
 
 15th, or as soon thereafter as the same could be 
 
 I completed, which adjustment should be as bind- 
 
345 
 
 CONTRACT. 
 
 346 
 
 ing upon the parties as if made by them in per- 
 son, iind the amount found due thereon to be 
 paid as before s' ipuliite<l. The perforniiince of 
 this agreement on tlie part of C. was guaranteed 
 by the defendants without any limit being 
 stated as to their liability thereunder. No 
 adjustment of tlie aceounts lieing made in 
 Pecenilier, 18Gi(, C. and one of tlie defendants 
 souglit in April, 1S70, to efieet a settlement 
 with plaintiff, but eould not succeed, owing to 
 plaintiff's conduct, and on May 10th the whole 
 matter was handed over by plaintiff to F., who. 
 however, was prevented from giving his inunedi- 
 ate iitteiition to it, and did not maku his award 
 until December '22nd, IS70, when he found that 
 tiicie was due to plaintiff the sum of .$10,924 CO. 
 riaintilf having sued defendants on their guar- 
 antee, they pleaded fraud and misrepresentation, 
 anil that plaintiff I'.ad by his own conduct 
 released them from their liability. In support 
 of the first defence they introduced .strong 
 evidence to prove that at the time of the signing 
 of the guarantee phiintiff had largely under- 
 estimated the amount of C's indebtedness to 
 him, in order to induce them to enter into the 
 guarantee. This plaintiff denied. 
 
 ILhl, that whether or not plaintiff had de- 
 ceived tliem as to the amount of C's. indel)ted- 
 ncsH to him, they were relieved from all liability 
 under tlie guarantee because he had by his own 
 conduct so delayed tiieadjustinont between him- 
 self and C as to materially alter their position, 
 the agreement being that, on the amount being 
 ascertained, C. should pay plaintiff in three and 
 six months fiom May 1st, whereas F's. award 
 was not made until more than tlie six months 
 had fully expired, and this delay dis;liarged the 
 defendants. 
 
 Tlie declaration was so framed as to allege 
 that defendants as sureties were liable to pay 
 to phiiiititl' in one sum, on the '22nd December, 
 what liy the agreement declared upon and whose 
 pciforinance they had guaranteed C. their prin- 
 cipal was bound to jiay in two sums on 1st of 
 August and 1st of Xovember, respectively. It 
 also contained a count on an account stated. 
 Defendants demurred to tiio whole declaration. 
 
 Hi Id, that there should be judgment for defen- 
 dants on the first count, and for the plaintiff on 
 the second. 
 
 Adams v. McFarlane t.t al., 3N. 8. D., 379. 
 
 41. Guarantee given to firm— Action by 
 
 individuals— Failure to prove that plaintiffs 
 composed firm— Plaintiffs' declaration contained 
 a count upon a guarantee to a firm given by de- 
 fendant, and on the faith of which goods were 
 alleged to have been supplied to the person 
 
 tiierein named. Defendant demurred to the 
 count, and it was adjudged bad because it did 
 not thereby appear that the ]daiiitiffs were the 
 persons who composed the firm when the goods 
 were supplied under tiie guarantee. 
 
 Xifol e( al. V. HKurij, 2 X. .S. D., 40. 
 
 42. Guarantee and indemnity — Plaintiff 
 
 was lessee to defendant K. W., who, being in 
 embarrassed circumstances, on the •29th August, 
 187.'}, assigned the rents to J. W. and A. R. W., 
 to wlioni he was indebted in the sum of .^SSOO, as 
 security for the debt. Under the assignment 
 plaintiff made three payments of rent to J. \V., 
 after wliicli E. \V. asserted a claim to the rents, 
 and plaintiff" paid him iJlOO, one month's rent, 
 on the 1st .Seplemljer, 1S74, taking from W. \V. 
 and the other defendant, X. Mel)., a guarantee 
 of indemnity against any claim from J. \V. At 
 this time plaintiff had a private account with 
 J. \V., who was in his debt, and on the 3rd of 
 the same month he permitted J. W. to deduct 
 from tlie amount due him (plaintiff') i^KK), taking 
 a receipt from him for a month's rent up to the 
 31st of the previous month. Plaintiff' then sued 
 E. W. and X. McU. on their guarantee of in- 
 demnity. On the trial plaintiff' admitted that 
 he knew the matter was in dispute when he 
 allowed J. \V. to deduct the §100, and that he 
 knew J. W. had said he had no claim on E. W. 
 HiUl, that plaintiff should not have allowed 
 I J. \V. to deduct from plaintitt''s account a debt 
 I due, if at all, to J. \V. and A. R. W. ; that the 
 I liability to J. W. and A. R. W. was not so sat- 
 ; isfactorily shown as to make defendants liable, 
 and that the nonsuit directed by the Judge who 
 tried the cause must be sustained. 
 
 Eaton V. Wr'mhl it al., 2 R. & C, 508. 
 
 43. Guarantee- Varying terms of agree- 
 ment guaranteed — H. K. R., having been em- 
 ployed by defendant to liuild a vessel for him, 
 
 I employed plaintiff as a tiub-contractor to plank 
 j her. Defendant executed and delivered to 
 plaiutiir a guarantee, based upon an agreement 
 between the latter and H. K. R., for the per- 
 formance of the sub-contract, which had been 
 drawn up but not signeil. A clause varying 
 its terms having been added to the agreement 
 subsequent to the giving of the guarantee, 
 
 Hdd, that the effect of the variation was to 
 
 relieve defendant of liability on the guarantee. 
 
 Thtlmkau v. Uytrson, 3 N. .S. D., 221. 
 
 44. Of lilring — Evidence — Phxintiff had 
 
 been in the employ of the defendant Company 
 under Gould, their Chief Engineer, at tlie rate of 
 #5 a day, for the time he was actually engaged. 
 
347 
 
 CONTRACT. 
 
 .S48 
 
 On the tit h Oct., 1874, Treniayiic, the London 
 Secretary of tlie Company, wrote to Harrison, 
 then num.tger in Xova Scotia, in tiiesc teinis : 
 " It has heen agreed tliat (iray shall receive pay 
 from the Company as from the day of Mr. 
 Gould's departure from tiie works, at !?.") per 
 day, the terms of his permanent service to be 
 fixed by tlie board, when the salaries of other 
 oflicers are discussed." Tiiis letter was shown 
 to plaintitl' by a subordinate servant of the 
 Company, but without the consent of Harrison, 
 who swore that tlie whole matter had been left 
 in his hands to deal with by the Board of 
 Management in London. Harrisoi. repudiated 
 the terms contained in the letter of Trenuiyne, 
 and between the 6th Octolier, 1874, and the 4th 
 January, 187.">, by himself, and through Dudgeon, 
 the treasurer, wrote to plaintiff, informing liim 
 tliat he was to be paid only for the time that he 
 was actuidly employed. The jury found for 
 plaintitr, allowing 8") per day for every day from 
 August 3rd, 1874, to April .SOth, 187"). 
 
 JI(/(l, l)y Young, C. J., (with whom (Smith, 
 J., concurred), that the letter of Tremayne not 
 having been intended to be seen by plaintiff, did 
 not constitute a cimtract witii him, or if it did 
 that it liad been formally repudiated afterwards, 
 and that tlie verdict must be set aside ; by Wil- 
 kins, .1. (with whom McDonald, J., concurred), 
 that the plaintitl' iiaving seen the letter of 
 Tremayne without any fraud on his part, and 
 having adopted and acted iipon it, was entitled 
 to the amount awarded by the jury. 
 
 (Jnatn, whether, the Court being equally 
 divided, there could be any judgment. 
 
 Gra;/ v. The i^tttl Company/ of Canada, 
 
 3 R. & C, 24. 
 
 45. Implied assumpsit— Patient at elec- < 
 
 mosynary institution — Plaintiff, who at the 
 time was visiting surgeon of the City Hospital, , 
 j.erformed a surgical operation upon the de. 
 ceased, of whose estate defendant was adminis- 
 tratrix. Dr. McFatridge had been attending 
 deceased, in his illness, with Dr. Parker as con- 
 sulting physician. The latter advised the de. 
 ceased to have the operation performed in the 
 hospital, telling him that plaintiff, as house sur- 
 geon for the time, would perform the operation, 
 and he (Parker) would assist. Deceased assented 
 to the operation being performed by the plain, 
 tiff, and it was performed successfully. 
 
 Held, that, although the hospital was prima- 
 rarily an eleemosynary institution, yet, as there 
 was no by-law prohibiting the house surgeon 
 from charging for services rendered to patients 
 able to pay, and who resorted to the institution 
 
 for the sake of better attendance, etc., plaintiff 
 could recover on an implied assumpsit. 
 
 Farnll v. McLuroi, 3 R. & C., 75. 
 
 46. Impossibility of performing contract 
 
 — Where a party entered into a contract to 
 build a coifer-dam, and there is no sustaining 
 substratum, an action will not lie for the work 
 and labor performed in attempting to complete 
 the contract — Where tiie plans furnished to the 
 party contracting represent the existence of a 
 suflicient substratum, which does not in fact 
 exist, and his labour is thus rendered uscki'Si, 
 he can only recover damages for the work iloiie 
 before that fact was discovered. 
 
 Distinction between a warranty and a repi'e- 
 sentation, and between a representation induuiiig 
 a contract and a representation forming part of a, 
 contract, discussed. 
 
 mn V. Fraxir, '2 Thom.. 294. 
 
 47. Lease — Lease maile in foreign country 
 not subject to provisions of 5th R. S., c. O'ij s. 3. 
 
 S^t BILLS OF SALE, 2. 
 
 SiiKjer Sewiiiii Machine v. McLeod, 
 
 •20N. S. R., (8R. &(J.), 341; 
 9C. L. T.,()0. 
 
 48. Memorandum — Construction of- 
 
 Specilic performance— Demurrer— Practice— 
 
 Defendi'"t drew up and placed in the liands of 
 Allan .. jal estate agent, a memorandum in the 
 following form : "I will sell ten acres of land, 
 including the water lots, as also two and three 
 (juarter acres of land belonging to Judge John- 
 stone, adjoining, for the sum of four hundred 
 and thirty dollars per acre, ecpial to S5,48"_'.50, 
 or £1370 12s. 6d., and on which sum I will 
 allow you a commission of two per cent." The 
 memorandum then specified the terms of the 
 sale. Allan entered into a written agreement 
 with plaintiff for the sale of the land on the 
 terms mentioned. The agreement not being 
 carried out, plaintiff brought a suit for speoilio 
 performance, setting out the two agreements. 
 
 Held, (1), That the memorandum handed to 
 Allan was a power to sell on the prescribed 
 terms without restriction as to purchaser, if the 
 terms could be obtained. 
 
 (2). That plaintiff's rigiit to a specific per- 
 formance rested entirely on the defendants 
 memorandum ; that defendant was no party to 
 the agreement entered into by Allan, and tliat 
 when the latter brought into the agreement 
 anything that went beyond the memorandum he 
 exceeded his authority. 
 
 (3). That the agreement could not be im 
 ported into the memorandum, and the latter 
 
349 
 
 CONTRACT. 
 
 3o(> 
 
 being of a vague and uncortain character, and 
 nnt siitlicicntly describing the hinds, »pecitic 
 perfiiiiiiiiiKC I'liuhl ni)t lie t'nf<»rct'd. 
 
 ;!i(l H, S., c. 134, sees. 01 to 70, apply equally 
 to ik'iniirix'1's in equity as at common law. 
 
 Honi-ihy V. Johiixloiie., 3 N. S. D., 1. 
 
 49. Memorandum — Consideration — Pro* 
 
 raise to pay the debt of another — Plaintiff had 
 a ilaiin against defendant ami also a chiini against 
 ilffi'iitlant's brother. Defendant having agreed 
 til assume both debts signed a memoiandum as 
 fdUiiws:— " 1881, Oct. 21, to bal. per settlement 
 
 sailetl two days a'.ter the mailing of the letter, 
 and was lost on the imssagc. The master, in 
 his testiniony, said: "I told McKenzie (plain- 
 tiff's manager) I wanted something to show the 
 coal was insured, and he gave me this paper 
 (the bill of parcels). I asked whce it was 
 insured. He said that was Mr. Campbell's 
 business. I told Mr. Campbell about my desire 
 for insurance. He said he would give no one a 
 cargo of coal unless he insured it himself." 
 Witness also said he would not have signed the 
 note unless he suj)posed the cargt) was insured, 
 and W(uild not have sailed. iJefciidants having 
 
 iit tills date, •'?8(>.(K(. I acknowledge the above j refused payment of the note, and a verdict 
 
 having been foun<l in their favor, it was, 
 
 Had, on a nuition for a new trial, that though 
 the master of the vessel might not unreasonably 
 have supposed that plaintiff had undertaken to 
 effect insurance, there was no such contract as 
 to vary plaintiff's right to payment for his 
 property sold and delivered to defendants at 
 their reijuest and order. 
 
 To constitute a contract there must be the 
 mutual agreement of both parties, and not the 
 notion of one party only ; and there must be a 
 mutual and common apprehension of the subject 
 1 matter. They must not honestly difl'cr in their 
 meaning ; without such mutual agreement and 
 understanding there is no contract. 
 
 Camphi/l V. McCasMl tt al., 1 N. S. D., 36. 
 
 ammiiit to be correct and promise to pay it 
 fdi'tliwith." 
 
 Hilit. not 11 account stated. Aho, that to 
 ciialile plaintifi' to recover as on an original 
 contract a consideration for assuming the bro- 
 tiler's debt should have been shown. 
 
 /•Vast/- V. McLmd, 6 R. & C!., 286 ; 
 6C. L. T.,4-)2. 
 
 50. Misrepresentation — Effect of, od 
 
 contract — 111 an action on a promissory note 
 given in payment for land purchased by defen- 
 dant fidin plaintiff, the defendant relied on an 
 iillegeil misrepresentation as to the quantity of 
 land cdiituined in one of tiie lots sohl. 
 
 Urlil, there being no evidence that the mis- 
 representation, if made at all, was made falsely 
 or with intent to deceive the defendant or to 
 indiue him to do that which he otherwise would 
 iKit have clone, that the defendant could not 
 succeed. 
 
 inn V. McLeod, 5 R. & O., 280. 
 
 51. Mutuality— Vendor of cargo renders 
 
 account, including charges for insurance — No 
 insurance effected— Cf>rgo lost— Vendee liable 
 for price of cargo— Defendants, being owners of 
 tiie lirigt. Roderick Dim, addressed a letter to 
 plaintiff, owner of the Campbellton coal mines, 
 re(iuesting him, in case their vessel proceeded 
 t(i Big Uras D'Or to load, to furnish a cargo of 
 
 52. Novation— Where A. is indebted to B., 
 and C. is indebted to A., and the three parties 
 meet together, ,iiid A. agrees that C. shall pay]}, 
 the amount due by him to A., which C. agrees 
 to do, A. cannot afterwards revoke such order. 
 
 Mitchell ct al. v. Turiihn/l el al., 
 
 2Thom., 2r)0. 
 
 53. Parol agreement to deed form in 
 
 return for maintenance— 3rd R. S., c. 89, a. 6 
 
 — The plaintiff entered into a parol agreement 
 with defendant, whereby, in consideration of hia 
 maintenaiv;e, which was to be secured by defen- 
 dant's bond, with two sureties, he undertook to 
 
 aial to the captain, taking his note, or selling in j give defendant a deed of his farm. Neither the 
 such manner as plaintiff was accustomed in such 1 bond nor deed were given, but plaintiff lived 
 cases. Defendants, as owners, guaranteed pay- j with defendant and was maintained by him for 
 
 several years. Then trouble arose between them 
 and plaintiff went away and brought an action 
 to recover the farm. Defendant pleaded an 
 equitable defence. 
 
 Held, that under chapter 89 Revised Statutes, 
 section 6, the Supreme Court had full power to 
 determine the etjuities between the parties, and 
 that upon the defendant paying the costs of the 
 suit and giving the required lx)nd, the plainti£f 
 should execute a deed to him of the form. 
 
 Punch V. Chisholm, 3 N. S. D., 469. 
 
 ment, and requested plaintiff to insure amount 
 of cargo. Plaintiff, in compliance with defend- 
 ant's request, supplied the coal, and took a 
 promissory note for the price, covering, also, a 
 charge for premium of insurance and policy. 
 On the same day he mailed a letter to his agents 
 at Halifax, enclosing the note of hand and bill 
 of lading of cargo, and re(|uesting the agents to 
 effect insurance for the amount of the note. 
 Ihis letter was proved to have been received, 
 Ijut no insurance was effected. The vessel 
 
351 
 
 CONTRACT. 
 
 352 
 
 54. Part performance of— Statute Oflwliich tlie Court refused to interfere to j.ro- 
 Frauds — Thougli the .Statute of Frauds requires | tect. Also, tliat tlie restriction containr 1 in 
 the transfer of an interest in lands to ))e made the agreement between the parties, in if\, of 
 
 in writing, the parol agreement for the sale or 
 transfer liaving been partly performed, is en- 
 forceable in ecjuity. 
 
 Mahou V. McCidly,, 1 N. S. I)., 3-23. 
 
 55. Fatent medicine— Assignment of ex- 
 clusive right to manufacture and sell within 
 certain limits — Perpetual injunction to re- 
 strain violation of agreement— Quack reme- 
 dies and nostrums — Restraint of trade — 
 Defendants assigned to plaintiffs the exclusive 
 right to manufacture and sell, witliin the 
 Dominion of Canada, the Island of Newfound- 
 land, and tlie West India Islands, a preparation 
 designed for tlie treatment and cure of pulmo- 
 nary diseases, known as "Puttner's Eniulsiim 
 of Cod Liver Oil." Defendants reserved the 
 right to manufacture and sell the emulsion in 
 the United States, but agreed, as part of the 
 consideration for the purchase by plaintiff's, that 
 they would not sell the emulsion, or any other 
 emulsion in tlie preparation of wliich cod liver 
 oil was used, or ^^■llicll was essentially or sub- 
 stantially the same as that assigned to plaintiffs, 
 within any part of the described limits. Sub- 
 se(|uently, the defendants commenced the manu- 
 facture and sale, in Canada, of an emulsion 
 which, thougli sold under the name of " Budd's 
 Emulsion,'' was essentially and substantially 
 the same as that assigned to plaintiffs, aiid in 
 the preparation of which plaintifi's' emulsion, 
 thoi-<,'h varied from so far as to create a scien- 
 tific, but, for trade purposes, an immaterial 
 dift'erence, was largely imitated. Wliile the 
 copying of any of the particulars specified in 
 the trade-mark was avoided, appearances, names, 
 and other indicia were adopted in such a way as 
 to have tlie effect of causing defendants' emul- 
 sion to be bought as that sold to plaintiffs, and 
 to lead the pulilic to believe that defendants' 
 emulsion, if not the real and only genuine 
 "Putt'ier's Emulsion," was essentially and sub- 
 stantially the same. 
 
 A perpetual injunction having issued to re- 
 strain the manufacture and sale of " Budd's 
 Emulsion," 
 
 Held, on appeal, that defendants were guilty 
 of a clear violation of their agreement, and that 
 the injunction must be sustained. 
 
 Also, a large number of leading physicians 
 having testified that they were in the habit of 
 prescribing cod liver oil emulsion for the use of 
 their patients, and that it was a highly useful 
 article, that the preparation could not be 
 classed with nostrums and quack remedies, 
 
 the subject-matter of the contract, was not 
 unreasonable or void, as in restraint of trade, 
 Irish tt al. v. Putt iter tt at., 7 II. & G., 40 j. 
 
 56. Penalty for non-fkilfllment of con- 
 tract — Plaintiff' was sub-contractor to defend- 
 ant, who was eiigage<l in the erection of a large 
 building. Defendant was under agreement with 
 the owner of the building to have it fiiii.'ilud 
 within a certain time or to pay a penally for 
 each week tiiereafter, and, when contracting 
 M'itli plaintiff', it was agreed upon Ijetwcen tiitm 
 that, if tiie penalty should be incurred through 
 the dilatoriness of the plaintiff, the amount of 
 the penalty should be deducted from tlie sum to 
 be paid by defendant to plaintiff under the sub- 
 contract. The completion oi the building was 
 delayed for several weeks, and the dcfciidiiut, 
 alleging that this was the fault of the plaiiititf, 
 withheld the amount of the penalty when set- 
 tling up with him, and, upon being sued there- 
 for, pleaded that fact, to which plaintiff' replied 
 that the tlelay was not caused by his dilatori- 
 ness, but by defendant requiring him to do 
 extra work, and also by defendant not being 
 ready for him when he began to work. 
 
 The jury found for the plaintiff on all the 
 issues thus raised. 
 
 Iltld, that the. verdict should not be disturbed. 
 Scott V. lirunton, 3 N. S. D,, 40o, 
 
 57. Personal contract terminated by 
 
 death of either party — The plaintiff', by agree- 
 ment under seal, contracted tc serve tiie testator 
 in the business of bookseller and stationer, as he 
 shouhl direct, for a term of three year.s, only 
 two of which had expired at testator's deatli. 
 i It was also agreed that testator should pay the 
 plaintiff, in consideration of such services, a 
 fixed yearly salary ; but no mention was made 
 in t)ie agreement of the personal representative 
 of either party, nor any provision made therein 
 in case of the death of either party liefore tiie 
 expiration of the term. 
 
 The testator by his will directed his executors 
 (the defendants), on his decease, to dismiss the 
 plaintiff, which they accordingly did. 
 
 Hdd, that the agreement was a mere personal 
 contract, determinable by the death of either 
 party, and that no action could be maintained 
 against the executors by the plaintitT for his dis- 
 missal, nor for the insertion in the will by the 
 testator of the clause directing it. 
 
 Grant v. Johmon et al., 1 Old,, 493. 
 
3.53 
 
 CONTRACT. 
 
 354 
 
 58. Privity or contract— Plaintiff's prop- | inliahitants of Sydney defendants were appointed 
 orty, with tliat of many otiiers, was taken for a ooniinittee to act as a Board of Healtii, in 
 riiihiiiy 11111 poses, and an appraisement was conseijiienee of an outbreak of smallpox. Tlicy 
 iiiiiile miller chapter 41 of the Acts of 1877. were subseiiueiitly apj)ointed as such Hoard I ly 
 Tiie ilefeiiiliint, who was Custos of the County, the Lieutenant-Governor, under (.'hapter "JO, 
 ami two otJR.r .Justices, were appointed hy the R. .S., (4th series,) and made a contract with 
 .Sessions a cimiinittee to carry out the provisions plaintid' for medical services while the disease 
 of tiie Act, chapter 4'2, of 1877, for the l)orrow- should continue in the place, at a fixed rate jur 
 ing of money to pay the land damages. They illim. They di.spensed with his services tiefore 
 arranged with the Union Hank for the money, the disease had lieen eradicated. In an action 
 at tlic rate of interest limited in the Act, but . for wrongful dismissal, the jury found that plain- 
 some doliiy occurring before the awards were I till' did not know, at the time of tlie contract, of 
 tileil, the rate of interest rose .so that they were the ajipointmeiit by the Lieutenant.(;ovei,ior of 
 oMigi'il to submit to a di-scouut of two and a the defendants to be a Hoard of Health, and that 
 Imlf ]it'r cent, on the County debentures, at the contract was made witli them in tlieir 
 wiiit'li rate the" took the money, which was individual capacity. 
 
 jilaLcil to the joint credit of the Custos and //i/il, that the action was )x rotifrar/ii, that 
 Truiisiuvr. l''or convenience in paying it out, it defendants, whether acting intra (•/;•(,« uv ultra 
 was (liawii by a joint cheque and placed to the ('(Ve.-' of their authority as a JJoard of Health, 
 ciedit of tlic defendant, the Custos, who pro- \ were to be regarded as pulilic agents, not indi- 
 ccodeil to pay the amounts awarded, deducting ' vidually liable on the ciuitract which tliey luul 
 the twoaiiil a iialf percent. A balance remained made on behalf of the public, and tlial the 
 !\fter paying all the claimants, which the defend- findings of the jury were not warranted by evi- 
 iint paid over to the County before this action dence that the contract was made by defendants 
 waslironght, in the Magistrate's Court, to I'eco- with plaintiff in the ordinary way in which a 
 vc'i' from defendant the two and a half per cent, contu 1 would be made by public agents. 
 The County Court .hidge, on appeal, held that Verdict for plaintitl' set aside. 
 there was no privity of contract between defend- McKay v. Moon- tt at, 4 R. & (J., 3:iG. 
 
 mit and ])laintifl', and non-suited the jilaintill", 
 kit granted an a])peal undci- section 14 of chap- 
 ter 9, Acts of 1S7.S. 
 
 The Court held that tlie .Judge had power to 
 
 grant llie appeal, but dismissed it on the merits. 
 
 Thomas v. /iai/, '2 R. & ()., ]Xy. 
 
 59. Proml.se to pay for services rendered 
 
 62. Purchase at auction — Deposit Re- 
 covery of- Plaintill' gave his note for the dc])osit 
 reipiired on '\ purchase at auction, but subse- 
 quently refused to carry out the contract, and 
 sought to recover the amount of his note. 
 
 //(/(/, on the authority of liluck v. Oisnir and 
 
 to pauper -Where the defendant, an Overseer ! ^''■''^ ''• "'/"''««".'-' Thom., l.-)7, that he cotdd 
 <if tlie Poor, signed a paj)er agreeing to .see the I '-°* '"ecover. 
 
 pkintitf paid for services rendered to a transient I Limlsa;/ v. Zinrbr, '2 X. S. 1>. , 100. 
 
 pauper, held liable, although his co-overseers [ 
 
 icpudiated the obligation. 63. Purchase of goods from agents — 
 
 D( unison v. Di'/, Cochran, H3. Biils rendered in name of agents — Suit by 
 
 en »-«„#• „p 1. .. .. iprincipala— Defemlants had dealt with H.il: Co. 
 
 ,iJ w. . / ""'?"f '^'•*" ""*'" ••"' ^ f'"' «""•« *""«' ""t l<"owi..g then, to be agents 
 
 tit e-When defence of alienage not available f„, pi,i„ti,r, but consi.lering the.n as princfpals, 
 
 -Ihe law requires strict proof from the parties , the bills rendered to them by H. & Co. being 
 
 ivlio set up an alienage as against title. 
 
 Suiihl,-, that as long as .sufficient estate remains 
 vested in an alien he may maintain ejectment 
 
 ilways in their own name. Having purchased 
 V quantity of plaintitrs, goods from H. & Co., a 
 bill was rendered to cheni in H. & Co. 's name, 
 
 Vi<aere-Pf. Wilkins, J., as to an alien devisee :,,,it subsequently another bill was sent in the 
 m trust to sell. i t i • ^-o. ir i- r. i • , 
 
 p ^ T , , „ ^ ^ : name of phuntiff. H. ic C o. became insolvent 
 
 />--. Johnstone, h. .J. It is not competent to | ^f^^, aelivery of the goods, and defendants did 
 
 :» party who goes in under a contract to purchase 
 to avail himself of the defence of alienage. 
 
 Williams bt al. v. Myers, 2 N. S. D., 157. 
 
 81. Public agents.- Individual liability 
 
 lor breach of contract -Board of Health.- , .^.j ...... . 
 
 special finding set aside— At a meeting of the \ defendants 
 12 
 
 k'cry 
 
 I not pay them for them, as they had a contra 
 account. On being sued by plaintitf, they 
 
 . pleaded the contra account, and pi;.d the difFer- 
 
 ) ence into Court. 
 
 I The evidence at the trial was very contradic- 
 tory and conflicting, but the jury found for 
 
855 
 
 CONTRACT. 
 
 356 
 
 //</(/, that the verdict sliouhl not ho dis- 
 turhcd, and that the payment into Court ■was 
 no Hthnixsion of defendants' lial)ility beyond the 
 amount |)ai(l in. 
 
 liiiird V. AndifKon et tiL, .S N. S. D., 181. 
 
 64. Rescission— Evidence to support ver* 
 
 diet— Particulars of demand— Instructiona to 
 Jury — I'laintirt' and defendant entered into a 
 contract tliat plaintitt' should taite <lefendant'8 
 mill for a period of five years, put the same in 
 repair, etc., and that defendant should furnish 
 supplies, etc., and pay for all lumber cut at 
 specified rates in tlie months of July and 
 Deeendier of each year. Defendant failed to 
 pay idaintifi" a sum of .S800 due him on one of 
 the December .settlements, and plaintiff having 
 demanded the money of defendant's manager 
 was informed that there was none for him. 
 Plaintiff tiierenpon .said he would have to give 
 up the mill, in reply to which the manager said 
 that that was " what the old man expected." 
 
 Plaintiff and defendant's manager then went 
 over the books, and a balance was agreed upon 
 as due plaintiff, part of which was paid, and for 
 the balance of which the action was brought. 
 
 In addition to the above there was evidence 
 of a statement by defendant that he wished to 
 get rid of plaintiff, who was getting "played 
 out," and of his instructing his manager to keep 
 $1000 back from plaintiff. 
 
 Held, Weatherbe, J., dubifanfe, that there 
 was evidence to support a finding by the jury of 
 a rescission of the contract, and a promise to 
 pav plaintiff the balance earned. 
 
 Held, aluo, objection having been taken to the 
 suflBciency of plaintiff's particulars that the 
 verdict could be sustained under the item " To 
 amount due plaintiff from defendant for work 
 and labor, and under the common counts, 
 $1,131.28." 
 
 Held, aluo, that the Judge was right in 
 instructing the jury that evidence was of no 
 importance of a conversation after the rescission 
 in which defendant said he was urging plaintiff 
 to go back to work and plaintiff made no reply. 
 Tracey v. Yotmg, 5 R. & G., 381. 
 
 On c/ppeal to the Sujrreme Court of Canada, 
 Held, that for the reasons given in the Court 
 below, the judgment should be affirmed. 
 Appeal dismissed with costs. 
 
 Yotmg V. Tracey, 17th February, 1S85, 
 
 Cas. Digest, 82. 
 
 65. Recovery for work in addition to 
 
 contract — CoBts of argument disallowed — 
 In an action on the common counts, defendant 
 pleaded that the work was all done under a 
 
 contract. It was clear that the original con- 
 tract (which was for the construction of a holler) 
 had been materially depiirted from, and a liirge 
 amount of work done tliat was not inihukMl in 
 j the contract. Defendant's agent swore that all 
 the money paid was paid on the contract. 
 
 Held, that plaintiff was entitled to recover for 
 the additional work, but not on the ground that 
 the contract iiad been rescinded, and jiluiutiff 
 having contended that the verdict for detiinlam 
 should be set aside on tiiis untenable gnniiul, 
 no costs of the argument were given. 
 AIcKay v. The Glace Bay Jliiiimj Conijiany, 
 
 OR. &0.,r)28; 
 «C. L. T.,-)«. 
 
 66. Resolution of City Council accepting 
 
 ofl'er— Not a contract— "Signing" and " issu- 
 ing " debentures — Phiintift' otfered to the city 
 'I site on Locknuin street for a City Hall, 
 to be erected under Acts of 1874, cap. .').'), for 
 .?3r),000, payable in city del>entures. 'I'lie City 
 Council resolved to accept the offer, and that 
 the Mayor be authorized " to have debentures 
 issued " for the purchase of the site, anil that 
 on the necessary documents being completed 
 such debentures be handed over to plaintiff, a 
 copy of the resolution being enclosed to the 
 plaintiff by the City Clerk, but without any 
 instruction or directions to that effect from the 
 Mayor or the City Council. At the time the 
 offer was made by the plaintiff the title to the 
 land referred to was not in him, and there were 
 mortgages over it to a considerable amount, but 
 plaintiff said in his evidence that he luul made 
 arrangements so as to be ready to have the pro- 
 perty transferred when the Mayor should perform 
 his duty, and he tendered to the Mayor an un- 
 executed deed of the lots which were to form 
 the site, and required him to carry out the 
 resolution of the Council. Defendant refused 
 to sign or issue the debentures, and plaintiff 
 prayed for a writ of mandamus to compel him 
 to do so. 
 
 Held, that the resolution of the Council did 
 not constitute a contract with the defendant, 
 and that in order to the validity of such con- 
 tract a document under the seal of the Corpora- 
 tion was necessary ; that even had the agreement 
 been formal and binding, plaintiff had not a right 
 to require the Mayor to carry out the resolution 
 of the Council until he had first secured a title 
 to the lands to enable him to perform his part 
 of the agreement. 
 
 Per Ritchie, E. J. — "Signing" is not 
 " issuing." 
 
 Per Wilkins, J. — "Issue" means to put 
 forth 80 as to bind the party issuing. 
 
 Jennetl v. Sinclair, 1 R. & C, 392. 
 
357 
 
 CONTRACT. 
 
 358 
 
 67. Sale of business— Written agreement 
 
 —Prior verbal agreement for sale of " good 
 will " inadmissible —Where a jtiirty enters into 
 a written agreement, under seal, for the sale for 
 a certain amount of all his right, title, share and 
 intcri'st in a certain business, evidence is ina<l- 
 missilile to prove a prior verbal agreement for 
 the sale nf tiic "good will" of the business for 
 a sum in additicm to the amount so specified in 
 the written agreement. 
 
 Liiiilhij V. Lacnj, II L. T., N. S., 273, dis- 
 tinguished. In that case the prior collateral 
 agreement was not interfered with by the sub- 
 8e(|Ueiit written agreement. It was a parol 
 condition on which the wi'itten agreement 
 depended. 
 
 Auxlin V. Boone, 2 Old., 149. 
 
 68. Sale or birlns witb rigbt to purcbase 
 
 —Not a bill of sale— Does not require to be \ 
 filed— Usur\ C P. olitained a piano from P. 
 & .S. (in hire, wirli the privilege of puroluising it 
 for !*3.")0, by paying certain instalments within a 
 certain time. Among other conditions of a 
 written agreement entered into by C. P. at the 
 time of receiving the piano were, that it should 
 rjjnrtin the property of P. & S. until fully paid 
 for, that in default of any instalment they 
 might resume possession without previous de- 
 mand, and that C. P. should pay interest upon 
 the purchase money at 7 per cent. C. P. paid 
 only two instalments amounting to §150, and 
 then became insolvent. On P. & S. claiming the 
 piano, they were opposed by H. L., a creditor 
 of C. P., who claimed under an assignment made 
 to him by C. P. as security for his debt, and 
 received by him without any knowledge of the 
 agreement with P. & S. This assignment was 
 duly filed and registered. The Judge in Insol- 
 vency decided against the claim of P, & S. 
 upon the grounds that the agreement with them 
 was void for usury, interest at 7 per cent, being 
 provided for ; that having left- the piano in C. 
 P.'s possession after the time for his paying for 
 it had expired, they could not set up their claim 
 against a bona fde purchaser, and that their 
 agreement should have been filed and registered. 
 
 On appeal to the Supreme Court, 
 
 Held, that the Usury Statute did not apply 
 at all, as it was not the case of a loan but a con- 
 ditional sale ; that the claim of P. & S. was not 
 prejudiced by their not having taken back the 
 piano as soon as the time was up ; that C. P.'s 
 agreement with them, not being in the nature 
 of a bill of sale, did not require to be regis- 
 tered, and that P. & S. should have the piano on 
 paying to H. L. the amount they had received 
 on its account from C. P. 
 
 When obtaining the rule nisi from the Judge 
 in Insolvency, P. & S. did not produce the 
 original agreement of C. P. witli tlieni. 
 
 Ht/d, that they were not thereby precluded 
 from producing it at the argument of the rule 
 or accounting for its non-production, 
 
 In tht Matter of Pyke, 3 N. S. D., 342. 
 
 69. Sale of goods — Consignor and Con- 
 signee — Rescission of Contract — Non-accept- 
 ance—Bill of Sale— On the 14th duly, 1«86, 
 plaintifl' forwarded a lot of hides to J. L., 
 Pictou, to wiiom he had been in the habit of 
 making sales for a number of years. The hides 
 were not ordered l>y J. L. , but were shipped on 
 the presumption tiuit he would receive them as 
 on previous occasions, subject to inspection and 
 approval. On the oth August, some days after 
 the arrival of the hides at Pictou Landing, one 
 of the servants of J. L., finding them there, and 
 without any special instructions to that effect, 
 conveyed them to the tannery. J. L. being in 
 financial difficulties at this time, ordered the 
 hides to be placed in a warehouse belonging to 
 D. L., to be held for the benefit of the consignor. 
 At the same time he telegraphed plaintiff as fol- 
 lows: "In trouble; have stored hides ; appoint 
 some one to take charge of them." Plaintiff at 
 once proceeded to Pictou and saw J. L., who 
 told him that he might make himself easy about 
 the hides, that he had placed them in D. L.'s 
 store for him, and that he would get them. 
 
 On the 12th August, 1886, J. L. executed a. 
 bill of sale to the defendant Bank, covering all 
 the hides, etc., "owned by the said J. L., or 
 stored by him in any building, warehouse or 
 storeroom of D. L., or in his keeping." 
 
 The defendant having sought to hold plaintiff's 
 hides under the bill of sale, 
 
 Held, that there had been no such acceptance 
 of the goods by J, L. with the intention of 
 taking possession as owner as to pass the pro- 
 perty. 
 
 Harvey v. The Pictou Batik et al. , 
 
 7R. &G., 196; 7 C. L. T., 130. 
 
 On appeal to the Su}>reme Court of Canada, 
 
 Held, affirming the judgment of the Court 
 below, that the contract of sale between J. L. 
 and H. was rescinded by the action of J. L. in 
 refusing to take possession of the goods when 
 they arrived at his place of business, and hand- 
 ing them over to D, L., with directions to hold 
 them for the consignor, and in notifying the 
 consignor who acquiesced and adopted the act 
 of J. L., whereby the property in and posses- 
 sion of the goods became revested in H. ; and 
 there was, consequently, no title to the goods 
 
359 
 
 CONTRACT. 
 
 360 
 
 73. Sale of lands— Condition precedent- 
 Action for consideration money — In mi iigree- 
 nieiit for tlie sale of liuuls, where it was stipii- 
 lilted, tliiit when the limd was surveyed the 
 
 plaintiff should give the defeudaut a h I for ii 
 
 dee<l, or a deed on ))eing secured the \)urclmse 
 
 in J. L. on August I'Jth, when the hill of sale ; bargain, tiiat the agreement was duly explained 
 
 was made to tlie hank. '• to him ut or before the execution, that 1). did 
 
 Till I'irloii ISaiikii III. V. llarnijy not depreciate tlie value of the farm to him, 
 
 14 8. C. H., 017. I knowing it to be of greater value tiiiiii the 
 
 amount of tlie jjurehase money ; but they also 
 
 70. Sale of goods - Merchantable char, f"""'' *'■« ^'^i"*' "^ »''« f'^"" ^" ''« "^^ ';'"' «'"" 
 
 acter-l'lnintiffs were the eonsignees for sale ! 1>- '""l «"J""'«'l "» T. seercey as to the hargam. 
 
 ofacargoof oats, eonsisting of 0,<MH) bushels, I A^'^''. «•*««- <)., '/'■-""".'/. that 1). Wiu, 
 
 imported from Xew York by parties residing at ^"titled to a deeree for spee.he per onnance. 
 
 Cornwallis. The oats were stored in bulk on ''< >• '^l'^^. J- tlmt ho should rather Ik. left t„ Ins 
 
 boanl a vessel lying at the Market wiutrf. j ••«>»«'ly ''y '»«"°" f"'' ''7'^"'' "f ^"''^'•'^f , 
 
 PiaiutitVs had engaged an auctioneer to sell the I ^><"''l' ^'- ' ">■""' ' *"''■• '• 
 
 cargo at auction, and a sale had been advertised. 
 
 Subseiiuently to this one of the defendants called 
 
 npon plaintiffs and undo some general incjuiries 
 
 in regard to the character of the oats, their color 
 
 and weight, and finally agreed to take them off 
 
 plaintiffs' hands. There was no sale by sample, 
 
 and no stipulation on the part of the vendors, 
 
 whose conduct was fair and open, that the oats ; money. 
 
 were tit for any particular purpose. | //'/'/, that the survey was not a comhtion 
 
 Defendants, on tlie evening before the appoint- precedent wiiicii wouhl prevent the ijhuiititr 
 ed day of sale, intervened as purchasers, and | from recovering tlie coiisid ration money, 
 gave the auctioneer instructions under which lie | -l^om- v. Hmston, Cochran, 01, 
 
 acted. Aftoi' a large i|uaiitity of the oats (some 
 
 l,r«(K» bushels) had been disposed of, the balance 73, Share in flsh Cailght — EvIdCIlCC - 
 remaining in the vcissel's hold were discovered I'laintitl's claimed to lie entitled to fish in a cer- 
 to be musty. tain berth, innler regulations made l)y the 
 
 To an action for tlie unpaid balance of tlie Sessions ou the autliority of an Act of the 
 purchase money, defendants pleaded substanti- Lcyislalurc. Under the evidence the (.'imrt 
 ally that the contract was for a cargo of tmr- iuferred that defendants were authorized liy 
 chaiilah/e oats, being in the iiidd of the vessel the jilaintili's to shoot their seine, — jilaiiititt's to 
 and iiicajiable of ins])cction. A verdict havii g have half the lish caught, — and having tlono .so 
 been found for defendants, the defendants secured a catch of fish, of which 
 
 IImI, that tlio nature of the transaction pre- plaintiffs claimed half under the agreement, 
 eluded the idea th.at a iiiereliantable character Ili/d, that the plaintiffs were entitled to iialf 
 was an understood condition of the contract. ! the fish caught, and that the relief which they 
 Both parties had eijual opportunities of iiispec- ' sought, namely, that defendants should deliver 
 ting the cargo, and the vendors sold and the to them their share of the proceeds or accoimt 
 buyers bought the specitio visible thing. The ' to them, and in the meantime should be 
 rule for a new trial was therefore made absolute. 
 Francr ef al. v. Sailer it al. , 
 
 1 N. .S. D., 424. 
 
 71. Specific performance— Sale of lands 
 
 — T., by wi'itten contract, agreed to sell to D. a 
 farm for .£200, but subseiiuently refused to 
 execute the deed, and forcibly ejected D., who 
 had been put in possession. D. brought a suit 
 for specific performance, to which T. pleaded 
 several pleas, attacking the agreement on 
 various grounds, but raising no distinct issue of 
 circumvention or fraud, though by way of recital 
 in his fifth plea he stated that he had been 
 over-reached, and that D. had by undue advan- 
 tage endeavored to obtain his property for an 
 inadequate consideration. The jury found that 
 T. was not incapable of making a provident 
 
 restrained from selling, etc., was jiropeily 
 sought in this Court. 
 
 Do'jtrty tl al. v. Power ct al., R. E. D., 419. 
 
 74. Sharing in fish caught-School offish 
 
 —Plaintiff and defendant entered into a contract 
 to fish, each in a distinct berth, and each party 
 finding his own seine, boat and fishing gear, 
 The evidence was conflicting as to the contem- 
 plated duration of the agreement, but the Court 
 arrived at the conclusion that it was confined to 
 the taking of a school of fish in each berth. 
 Evidence was given as to the meaning of the 
 term school, as used in such contracts, hut it 
 was vague and contradictory and such as to 
 oblige tl'.e Court to construe the agreement 
 independently of any alleged usage. Defendant 
 caught iourteen barrels of mackerel in his berth, 
 
361 
 
 CONTRACT. 
 
 362 
 
 of wliii'li 1>P fe'n,vo jiliiintiff seven ; and plaintiff, | tract, plaintiff should be left to his remedy at 
 
 sliditly iiftor, cauglit ten barrels in his berth, of 
 wliich ho j,'avo defendant five. Plaintiff then 
 aliaiiiliinod liis berth and went elsewliere to fish, 
 iiml never returned to it. Defendant, in his 
 berth, ciui>,'ht two hundred and fifty barrels, of 
 wliii'li ()l:iiiititl' I'iainieil iialf. 
 
 Hi III. that tlie plaintill' was not entitled to 
 participate in tiie defendant's catuh of fish. 
 
 Fuicion V. Xoonan, B. E. D., 377. 
 
 law. 
 
 Bill dismissed without costs. 
 
 Meat/her v. The Qw.cu'n Inm) aiicc Co. , 
 
 R.K.I)., 3-27. 
 
 77. Specific performance — Misrepresen* 
 
 tations made verbally before written contract 
 — Plaintiff brouglit suit to eomi)el the perform- 
 ance by defendant of a contract in writing for 
 I the purcluisc of a house. During the negotia- 
 J.I. SpCCinc performance-Agreement to tions defendant asked expressly as to the 
 hquidate mortgage- H. & K. C'olp, being the 'Iniinage, which plaintitf assured him was 
 owners of certain lau.ls, subject to a mortgage ' perfect, but wliieh in fact was seiiously defec- 
 of 8'.'.(ltM!, and indel)te.l to otlier parties in tiio tive. It appeared tliat tlie representations had 
 sum (if mn, entered into an agreement witli J. l^een made by the plaintifl' in good faith and in 
 Hul.li'y and ('. A. Wiiitmaii, whereby, in con- ' ignorance of the facts, and tlie liouse being 
 siduiation of the latter agreeing to li(iuidatc tlie "''eupied defendant couhl not inspect 
 
 nini'tgiige and tiie other delits, the parties first 
 
 nii'iitioned agreed to deed to them the real 
 
 estate uieiiticmed in tiie mortgage. It was 
 
 fuither agreed that Hubley, Wliitman and IJ. 
 
 Oilp, t!ie defendant, should carry on a lumlier- 
 
 ini; l.iisines,, on tlie property. Tiie debts were *'"»- '^n'l *!>"■*' ''^'"8 material representations on 
 
 acLuidiiigly paiil, aii.l the piaiiitills and defend- the faith of wliich defendant entered into tlie 
 
 ant c.uducted the business, but defendant re- i contract, they constitute a defence, although 
 
 t for 
 himself. Nothing waa said about the matter in 
 the written contract. 
 
 JIc/il, that in the suit for specific performance 
 the verbal representations made previous to the 
 written cmitract must be taken into considera- 
 
 181. 
 
 fused to sign the deed of the property, den'ed | plaintiff <lid not know them to be untrue. 
 tlii't a partnership ha.l been entered into as; T/wmwii. v. Lowjard, R. E. 1)., 
 
 alk'gi'il, and claimed that the agreement had i 
 been procured by misrepresentation, which he | 
 
 faikii to prove. '8. Spcciflc performance - Where dam* 
 
 //./-/. that the plaintiffs were entitled to spe- ages already obtained— Where, in an action 
 ciric performance of the agreement. f"!" specific performance of a contract, the plain- 
 
 Whilmau tt a/, v. Coin R. E. D. 471. ' tiff claimed and obtained damages for the non- 
 fulfilment thereof, the Court refused to decree 
 specific performance. 
 
 McAijy V. Gray, Cochran, 52. 
 
 16. Speciflc performance — Insurance — 
 
 PlaiiititV brought this suit to compel defendants 
 to deliver to him a policy of insurance for !?tjOO, 
 alleging that they had received his premium on 
 the '27tli Xovember, 1S77, and undertaken to 
 insure his house for a year from that date, and 
 to deliver a policy to that effect. The building 
 was destroyed by fire in December, 1877. De- 
 fendants alleged that they had been induced to 
 enter into the contract by the misrepresentation 
 of idaiiititr that the Building Society were about 
 to advance !?()00 on the property, and that thej' 
 had undertaken to insure it, not for plaintiff, 
 but for the Society. At the hearing, plaintiff's 
 counusel asked for a decree for a policy, and also 
 for the payment of the money. 
 
 Htid, that, even if such relief could be grant- 
 ed, it could only be upon a bill asking for it, 
 whereas plaintifl" had, in his writ, asked only 
 for a policy ; and further, that as the evidence 
 was directly in conflict on the point as to mis- 
 representation, and 08 to the term of the con- 
 
 79. Statute of Frauds— Building attached 
 
 to land — Action to recover tiie price of a certain 
 building, and plea that the contract of sale was 
 not in writing signed by the defendant. 
 
 The plaintiff gave in evidence that the build- 
 ing in question was erected on land to which 
 neither of the parties claimed title, and that it 
 rested on stone pillars, which the plaintiflf 
 built. 
 
 Held, insufficient to give the building the 
 legal character of a chattel, and that therefore 
 the contract was void under the third clause of 
 the Statute of Frauds. Had the plaintiff 
 showed that the building rested on the pillars 
 solely by its own weight, without being affixed 
 to the pillars or connected with the soil, the 
 case would ■ till have been within the fourth 
 section of the Statute. 
 
 McKmzie. v. McDonald, 2 N. S. D., 11. 
 
363 
 
 CONTRACT. 
 
 364 
 
 80. Statute of Frauds — Non-compliance 
 
 with — A verbal agreement between A. and B. 
 that B. ahall take a net in payment of his debt, 
 although intended as a final agreement by the 
 parties, is not a sufifieient compliance with the 
 Statute of Frauds to transfer the property to B. 
 McKenzic v. Robert nan, 
 
 James, 234. 
 
 81. Statute of Frauds— Not allowed to be 
 
 an aid to the perpetration of a fraud — Plaintiff' 
 and defendant agreed orally that defendant 
 should advance the consideration money and 
 take a deed of certain lands for plaintiff', who 
 should have fourteen months to repay the con- 
 sideration money, defendant occupying the lands 
 meanwhile in lieu of interest for the money ad- 
 vanced, and that defendant should execute a 
 bond to re-convcy the premises to plaintiff" on 
 payment of the consideration money. Defen- 
 dant took the deed l)ut did not execute the 
 bond, went into possession of the land, and 
 made improvements upon it, and when plaintiff, 
 within the time stipulated, tendered the con- 
 sideration money and demanded a reconveyance 
 of tiie premi.ses, refused to execute a convey- 
 ance, claiming the premises as his own, under 
 his deed. 
 
 Hthl, Jiat the Statute of Frauds could not be 
 
 set up as a defence to aid the defendant in the 
 
 perpetration of a fraud, but that the plaintiff' 
 
 was entitled to a reconveyance of the premises. 
 
 Amero v. Atntro, R. E. ])., 9. 
 
 82. Statute of Frauds— Recovery on com- 
 mon counts where party could not recover on 
 agreement not complying with Statute— Plain- 
 tiflf, who had purchased defendant's stock in trade 
 and leased his premises at S., gave defendant 
 his note for S'200 in consideration that defendant 
 would sell the godd will jf his business to plain- 
 tiff, and woidd not interfere with him for the 
 term of five years. This agreement was not in 
 writing. Defendant, within the period of five 
 years, returned to 8. and set up business there, 
 so as to interfere with plaintiff. 
 
 Held, that while plaintiff" could not recover 
 for breach of this agreement, not being in 
 writing, and not to be performed within one 
 year, he could recover under the common count 
 for money paid, and that his verdict for §200 
 must be sustained. 
 
 Meek v. Gosh, 2 R. & C, 243. 
 
 83. Substantial ftalfllment of— Mortgage, 
 
 delivery of — Registration — R. took a promis- 
 sory note from McL. and McD. (the defendant), 
 by agreement between him and them, as secur- 
 ity, until McL. should give him a mortgage of 
 
 certain lands. McL. and his wife executed a 
 mortgage of the lands to R. in the usual form, 
 and McL. brought and tendered it to R., who 
 was then very ill, but did not read it to him. 
 R. then said to MoL., "You had better take 
 the mortgage over to A. (the registry office was 
 situated there), and when you bring me back 
 a certificate that it is left in the office, you will 
 get the note." McL. took the mortgage to A., 
 i and had it registered, but this was not until a 
 fortnight after R.'s death and about three weeks 
 after the above conversation. No interniwliate 
 encumbrance, however, intervened. McL. ob- 
 tained the certificate, but did not bring it to 
 R. 's administrators. R. died intestate, and his 
 administrators brought this action on tlie note. 
 
 Held, that McL. liad substantially fultilled 
 the agreement between himself, McD. and R,, 
 and the jury having found for the defendants 
 (the question of the delivery of the mortgage to 
 R. in his lifetime havhig been left to them), and 
 having also foimd that McL. acted in perfect 
 good faith, the Court refused to disturb the 
 verdict. 
 
 McKen-Je et al. v. McLean et al., 2 Old., 324. 
 
 84. Substantial performance— Measure of 
 
 damages — Supervision — Where there i'-- a 
 substantial performance of work under a special 
 contract, though not in strict accordance with 
 it, and there is no fraudulent or wilful deviation 
 from its terms, the contractor is entitled to 
 recover for the work done, the measure of 
 damages in such a case being the agreed price, 
 less siich a sum as it would take to conii)lei u tlie 
 work according to the contract. 
 
 Where a plaintiff has done a large portion of 
 his work under a special contract, under the 
 supervision of the defendant's inspector, who, 
 though he complained of portions of tlic work, 
 and forliade the plaintiff' to proceed, stated tliat 
 he did not suppose that the work would be 
 stopped, and the defendant has himself con- 
 tinued to superintend and direct the woik, 
 after such expression of disapproval, he cainiot 
 afterwards refuse payment for the work done. 
 Mcintosh et al. v. Culteii, 2 Old., '268. 
 
 86. Usury— Admission parol evidence to 
 
 vary written agreement — Defendant being 
 about to 3nter into business, entered into a 
 written agreement with plaintiff" in the follow- 
 ing terms : — 
 
 "Halifax, 13th January, 1851. 
 "Memorandum of Aijreement between J. f" 
 Barss, of Wolfville, and Samuel Stronn, of Hali- 
 fax. It is agreed as follows: Whereas, the 
 undersigned, Samuel Strong, is about entering 
 into the dry goods business on his omti account, 
 
365 
 
 CONTRACT. 
 
 366 
 
 and finding liis capital insufficient for such pur- 
 pose, has applied to the subscriber, J. VV. Barss, 
 for tiie loan of one thousand pounds currency, 
 and also for a letter of credit to his agents at 
 Liverpool, (i. B., Messrs. J. S. D. & Co., for one 
 tliousand pounds sterling, and for which money 
 advanced and credit given, with other assist- 
 ance in business, and for the risk incurred by 
 tlie said J. AV. liarss in advancing the aforesaid 
 sums to the said Samuel Strong, agrees to pay 
 to the said J. W. Barss, for the above consider- 
 ation, tlie sum of three hundred pounds cur- 
 rency p;r annum, payable half yearly on the 
 SOtli June and 31st December in each and every 
 year during the continuance of this agreement, 
 tiie first payment to fall due on the .SOth June 
 next ensuing. And it i.s further agreed by said 
 Samuel Strong, that \\ hen it does appear that 
 the prolits of his business in any year exceed 
 one tliiiusand ])()und.s currency, then he will, in 
 addition to the foregoing, pay sixty pounds per 
 iiniuini lis interest on the one thousand pounds 
 aliove ]ianied as advanced to him. The above 
 agreement to (Continue for five years from this 
 date (unless otiierwise mutually determined), 
 and tlien eitiier party desiring to withdraw 
 tlieiefroni shall specify the same three months 
 liievions to the termination of this agreement. 
 Tile said J. W. Baiss shall consider himself in 
 no wise liable for any of the transactions of the 
 said Samuel Strong, and in no case to be consid- 
 eiecl as a partner in liusiness beyond l)eing his 
 ciedilor in the smn speeitied above. 
 
 (Sgd.) John- \V. Bauss. 
 
 (Sgd.) Samckl Stuo.vo." 
 
 The £100(J first referred to was advanced, 
 ami the letter of creilit given, and subseMjuentlj- 
 another iKXJO was iidvaneed. One amoimt of 
 f lOfXt, alleged to have been that first advanced, 
 haiing lioen repaid, a seconil agreement was 
 entered into in regard to the remaining £1000, 
 hy wliieh defendant w\as permitted further to 
 retain it on paying interest at the rate of ten 
 per cent, per annum. In connection with this 
 agieement, the defendant gave the notes which 
 were the subject of the action. 
 
 At the trial, the plaintiff contended that the 
 transaction was a mixed one, involving other 
 things which he did under the agreement, be- 
 sides permitting defendant to retain the money. 
 The defence turned entirely on questions of 
 usury. The jury found a verdict for plaintiff 
 for £1200, being less than half his demand. 
 
 HM, per Young, C. J., that the question 
 whether the parties intended to evade the 
 Statute in regard to usury, or whether the 
 intention was to compensate the plaintiff for 
 other services rendered, was for the jury, and, 
 
 it having been fairly left to them, their verdict 
 must be decisive. 
 
 DesBarres, J., concurred. 
 
 Per Dodd and Wilkins, JJ.— The plaintiff 
 was estopped from goin'^ outside of the agree- 
 ment, and showing that the money was lent on 
 other considerations than those expressed. 
 
 The Court being ecjually divided, no rule 
 
 passed. 
 
 Bars.1 V. Slroiig, 1 N. S. D., 450. 
 
 86. Verbal agreement for sale of land- 
 Vendor takes possession — Where the consider- 
 ation of a promissory note was the purchase of 
 land of which the maker took possession, 
 though there was no written agreement for the 
 sale of the land, and the consideration was not 
 expressed on the face of the note, the maker 
 cannot set up as a defence the want of consider- 
 ation. 
 
 Oral/ V. Whitman ef ah, 2 Thorn., 157. 
 
 87. Verbal agreement for sale of land 
 
 inadmissible to show consideration — Where 
 a note was given to plaintiff in part payment 
 of purchase money of lands, under an agreement 
 for sale and purchase not reduced to writing, 
 hchl, that evidence could not be given of the 
 consideration, and that plaintiff could not re- 
 cover the amount of the note. 
 
 lihirk V. Gemer et a!., 2 Tliom., l.")7 ; 
 Limlmy v. Zwid'er, 2 N. S. 1)., 100. 
 [XoTK. — In the arg.iment of Ch-ai/ v. Whitman, 
 which was decided after lilack v. Oemier ef al., 
 the former case is distinguished from the latter 
 by the fact of the maker of tlie note going into 
 possession. The Court in the former merely 
 said that it Mas clear there must be judgment 
 for the plaintiff.] 
 
 88. Verbal agreement to pay for work 
 
 done for another — Verdict — Defendant made a 
 verbal agreement with plaintiff to pay him for 
 any work which R. might recjuire him to per- 
 form. Plaintiff performed work for R. accor- 
 dingly, and procured from him an acknowledg- 
 ment in tho fcdlowing form, which he presented 
 to defendant : " Balance due Mr. William Cox 
 from Alexander Ross at this date, one hundred 
 and fifty dollars. (.Signed.) Alex. Ro.ss." At 
 the trial a verdict was found in plaintiff's favor, 
 and a rule taken to set the same aside. 
 
 He!d, that although the paper signed Ijy R. 
 was not in form sue', a paper as lie ought to 
 have prepared, or as plaintiff ought to have 
 accepted, it was sufficient, after verdict, tc show 
 the amount and value of the work done by 
 plaintiff for R. , for which defendant had agreed 
 to pay. 
 
 Cox v. Elliott, 3 N. S. D., 509. 
 
367 
 
 CO^ VICTION. 
 
 368 
 
 89. Warranty of goods— Breach of Evi- 
 dence — A contract amounting to a warranty of 
 goods sold is violated if the articles, owing to a 
 secret defect existing at the time of sale, after- 
 wards become deteriorated in value. 
 
 The sale of No. 1 salmon witiiout express 
 warranty amounts to a warranty that the tish is 
 in the condition prescribed by law for lisli of tiuit 
 brand. 
 
 Jlnrih/ it al. v. Fairhaiiku i-t a/., James, 432. 
 
 00. Charter party -*f SlllPPIJffi. 
 
 «1. Contract of service -.SVe MASTER 
 AND SERVANT. 
 
 02. Contract of Insurance -SVe INSUR- 
 ANCE. 
 
 CtlNTROVERTED ELECTIONS 
 S,-e ELECTION LAW. 
 
 CONVENTION OF 1818. 
 
 1. Its articles are to be construed with a 
 
 view to tlie surrounding circumstances, and 
 according to tiie plain meaning of the words 
 emi)love<l. 
 
 Th( J. If. Xlrkrr.'^oi,, Y. A. 1)., p. 100. 
 
 2. Violation of Convention and Dominion 
 
 Fishery Acts — Evidence of— An American 
 fishing schooner was seized liy one of the cutters 
 appointed l>y the Dominion (iovcrmneiit for the 
 protection of tiicir fisheries, for being engaged 
 in catching tisli witliin the limits reserveil by 
 treaty and by the Dominiim Fisliery Acts. The 
 evidence on the part of tiie prosecution was to 
 tlie effect that, when boarded by tiic cutter, 
 there were fish freshly caught upon the schoon- 
 er's deck, and every indication of tlie crew 
 having been very recently engaged in the man- 
 agenu'ut of their lines. The only evidence 
 offered for the defence was, tiiat the fish iiad 
 been caught merely for purposes of food. 
 
 ITih/, that the vessel sliould be forfeited, 
 with all iier tackle, stores and cai'go. 
 
 The IVampatucl; V. A. D., 75. 
 
 3. Violation of— Evidence to prove — A 
 
 case of very similar nature with Th( Wampa- 
 tuck{\, A. 1), 7.">). tiie oidy ditl'erence l)eiug in 
 the evidence adiluced. For the prosecution it 
 was proveil that the vessel was lying-to in the 
 very position fi>r fisliing ; that the crew were seen 
 casting and hauling in their lines and throwing 
 out biiit ; and that, when boarded, there were 
 several lines over the rail, fresh bait upon the 
 deck, aiul other signs of recent operations. 
 
 Held, that there was sulKcient evidence to 
 warrant a forfeiture of tlic vessel. Sic. 
 
 The A. //. Wamoii, V. A. 1).,83. 
 
 4. Violation of— Evidence — The vessel 
 
 proceeded against in this case was found liy ono 
 of the cutters in the midst of a mackerel tloet, 
 witiiin tlic prescribed limits, ami overiiiuiled, 
 but afterwards permitted to go ; but, on fiutlier 
 information being received, was seizwl on a 
 subser|uent day in an adjoining ])ort. The only 
 material evidence against lier was tiiat of tiie 
 crews of two other fisliing schooners, who testi- 
 fied that they liad seen lines and bait throw .Hint 
 from tiie suspected vessel, and that her iiion liiul 
 continued ti'ying for mackerel until the unttcr 
 canu^ u]). Tiiis evidence was furtiier strenj,'tli- 
 ened by admissions of the men, going to sliow 
 that tiiey iiad actually taken mackerel. 
 Ill III, that the vessel was forfeited. 
 
 rill- A. ./. Friddliii, Y. A. 1>..S0. 
 
 5. Violation of- Evidence -The treaty bj 
 
 whicli tlie United .States formally rciiiiiiin,'eil 
 the liberty tiiey hail liitiierto enjoyed, of lisliing 
 within the prescribed limit of three mariiic milts 
 of any of the bays or hai'liors of the Doiniiiioii 
 of Canada, contained the following |ll■ovi^o: 
 "Provideil, however, that the American lisiiiT- 
 men shall be pcrmittecl to enter such bays ur 
 harbors for the purpose of shelter and lepaiiiiig 
 damage therein, and of ])urcliasing wood anil nl 
 obtaining water, niiil for no olhir jiiir/iii'" "■//'('■ 
 i^ri'i:" The J. H. Xickerson entered the IJuyoi 
 Ingonisb, in ("ajie Ureton, for the alleged pur- 
 pose of obtaining watei', itc, liut the cviilence 
 clearly showed that the real object of her entry 
 was to obtain bait, and that a (luantity "f liiiit 
 was so proeureil. She was seized by the giiverii- 
 ment cutter after she had been wai ind otl', ami 
 while she was still at anchor, within tiirec 
 marine miles of the shore. 
 
 Ill III, that she was guilty of prociiiiiiL,' l«it 
 and preparing to tish witliin the ini'Miilied 
 limit, and must therefore be foi'feited. 
 
 The J. If. Xlrhn:<r>i,, Y. A. 1).,!W. 
 
 CONVENTIONAL LINE. S,c BOUNDARIES. 
 
 CONVERSION. SV' TROVER. 
 
 CONVICTION- 
 
 I. SUMMARY. See JUSTICES OF THE 
 
 PEACE. 
 
 II. QUASHING. See CERTIORARI. 
 
869 
 
 CORPOEATION. 
 
 370 
 
 COKPORATIOy. 
 
 1. Corporation, foreign — Attaclinicnt 
 
 against— Service of prooeaa on agent— Collu- 
 sion by agent— Defiiult set aside and defend- 
 ant alloweil to appear and plead where it 
 appe'.ired that justice between the parties 
 mifht be more eft'ectually done — Enlargement 
 of time to appear and plead— Power of Judge 
 at Chambers to allow -I'laintitr, on the '2M\ of 
 August, ISS,"), olitiiini'il jiiilgnient by (k-fiuilt 
 ngainst tliu (U'tVndant company, a company 
 incDipoiiitoil in tiie >State of IMassacliusetts, 
 owiiiiii^'ii gold mining propinty at Isaac's Harlioi', 
 in tlie ridvinec of Nova Scotia, the wi'it of 
 sumiiions having been suived upon S, as agent 
 of the eoniijany. On the same day an exeeu- 
 ti(in was issued, a writ of attaeliment and suni- 
 inmis to agent iiaving been issued on the 7tii 
 August pieeeding. Tiie defendant company 
 applied on alliavit to set aside the judgment 
 nnil execution, and for leave to appear and 
 plead, on tiie ground that S. had acted in collu- 
 sion with the piaintitl' for the purpose of obtain- 
 hig the judgment ; that the amount for which 
 judgliient was entered was not due ; that S. 
 neve" instructed or informed tiie executive or 
 managing otHcers of the eom))any that the writ 
 of siinnnous had been issued, or that he liad 
 beep served with any process in the suit, and 
 the ii)ni|)an}' had been ke[)t in ignorance of tiie 
 pidcceilings taken against it. Tiie defendant 
 fiirtlier denied the right of S. to sign certain 
 pioniissoiy notes, wiiicli formed j)art of the 
 alkgi'il ( ause of action. An order having been 
 made l)y the learned C'liief Justice at Chambers 
 setting aside the default and allowing the 
 defendant to apjiear and plead, 
 
 //'/'/, tiie utlidavits lieing lengthy and contra- 
 dictory, and the Court lieing of r.jiinion that 
 justice could be more effectually done between 
 the parties after a trial, that tlie order must 
 be atliinicd and the appeal therefrom dismissed. 
 
 '^iie time for appearing and pleading iiaving 
 been enlarged by several successive onlers 
 granted on liearing atKda\its urging tlie neces- 
 sity for furtiier time and accounting for delay, 
 wliicli orders were also appealed from, 
 
 I/(ld, that under Order 00, Rule 5, the Judge 
 at Chambers had power in his discretion to 
 extend the time oven where the application was 
 not made until after tlie expiration of tlie time 
 previniisly appointed or allowed. 
 
 liryiiohLt V. acdtihar Gold Miiiiiif/ Co., 
 
 1 R. fi a., 466; 
 8C. L. T., 17. 
 
 2. Distinction between membership in 
 
 and part ownership of corporation property— 
 
 I Plaintiff, in 1874, agreed with a number of 
 
 ! Halifax merchants to subscribe §4000 towards 
 a steamship enterprise, and assist in getting a 
 
 i suitable ship, provided he should be master. 
 He was appointed master, and the wages were 
 
 ' fixed at iJl'iOO. Tlie company was incorporated 
 in I87."i, by Act of the Dominion Parliament, 
 and the plaintiff received stock to the amount 
 of iiis contribution. After running for some 
 time, it was found that the enterprise was sink- 
 
 ; iiig money rapidly, and in 1876 a new arrange- 
 ment was entered into, by which the plaintiff 
 was to sujiply the ship with men, and provisions 
 for the passengers and crew, and sail her as 
 
 i commander, for .^(WXt a month, afterwards in- 
 
 ' creased to itO.'iO. The ship had been originally 
 accustomed to remain at .St. Pierre forty-eight 
 hours, but the time was afteiwards lengthened 
 t.'j sixty hours by the company, yet the plaintiff 
 insisted on remaining only forty-eight hours, 
 against the express directions of the comjiany's 
 agents at St. Pierre, ami was otherwise dis- 
 obedient to the agents, and treated them w ith 
 gross insidence, in conseiiueiice of which be v.a.s 
 dismissed from tiie service of the company. 
 There was a verrlict of .S'2(KK) for plaintiff'. 
 If</'/, that the dismissal was jiistitiable ; that 
 the plaintiff was not a part owner of the ship, 
 and could not exorcise, indopeiulently of the 
 corporation, any power whatever over the prop- 
 erty of the company, having no interest what- 
 ever in the ship, but only in the stock of the 
 company, and the case must therefore be ccm- 
 
 ' sidered as the ordinary case of a master dis- 
 missed by the owners. 
 
 Sir \V. Voung, C. J., dix^tifiinj, luld, that 
 while the plaintitf would have had no redress 
 had he been in the ordinary position of a ship- 
 master dismissed hy a majority of tlie owners, 
 his position was that of a part owner, and he 
 was entitled to compensation. 
 
 Guildford v. Aii'i/o-Fn iich Sf<am>:hi/i Co., 
 
 2 R. & (;., 54 ; 
 
 I IC. L. T.,5o4. 
 
 Oil ajijual to the Siiprinie Court o/ Catindu, 
 H(ld, 1st, that even if tlie dismissal had been 
 wrongful, the damages were excessive, and the 
 case should go back for a now trial on this 
 ground. 2nd, jur Ritchie, C. J., and Fournier 
 and O Wynne, J J., that the fact of the master 
 
 ' being a shareludder in the corporati(m ow'ning 
 the vessel, had no bearing on the case, and that 
 it was proper to grant a now trial to have the 
 question, as to whothor the plaintiff so acted as 
 to justify his dismissal by the owners, submitted 
 
 I to a jury, or a Judge, if case be tried without 
 
 a jury, 
 I Gni/dford v. A)i;/lo-French S. S. Co., 
 
 i 9S. C. R.,303; 2C. L. T.,250. 
 
371 
 
 CORrORATION. 
 
 372 
 
 8< Grant to— Where a grant was lUide to i Held, Strong, J., dUtcntimj, that where the 
 " the Governors, President and Fellows of j commanding oiiicer died pending such action, 
 King's College, at Windsor, in the Province of ; the proceedings could be continued by iiis pur- 
 
 Nova Scotia," and an action of trespass was 
 brought by " the (iovernors of King's College, 
 Nova Scotia," (the real name of tlie Corporation), 
 
 Held, that the grant was prima facie nuide to 
 the Corjioration. 
 
 Governors of Kiiiy'n College v. McDonald, 
 
 2 Thorn., 106. 
 
 5. Mortgage of property of, by directors 
 
 — Practice on making calls— The directors of 
 a company incorporated under Acts of lS(i'2, 
 Chapter 2 (Hev. Stats., 3rd series, ''*)), intit- 
 uled " An Act for tlie incorporation and wiiniiiij; 
 
 _ . . „ ,, , , "P "f joint stock companies," have iiowir to 
 
 — Requisition must strictly follow the words ^. .. . *i . . „ * e ,\ < i 
 
 ,^ _ , . ,. X mortgage the property of the conii)any to ilis- 
 
 of the Act— Liability of Mumcipalsty to pay , . ii;, *; e i i .i i i ii 
 
 y_ •; •'..'■' charge oliligations tor winch tlie ."hari'lKiliUis 
 
 sonal representative. 
 
 Crewe-liead v. County of Cape Bnloit, 
 
 14 S. C. H.,1 
 
 4. Militia called out in aid of civil power 
 
 for services— The Militia Act, Acts of 18G8, 
 c. 40, as amended l»y tiic Acts of 1S73, c. 4(5, 
 and tlie Acts of 1879, c. ,V>, authorizes tiie call- 
 ing out of the militia by the senior otlicer present 
 in any locality, in aid of the civil power, for the 
 purpose of preventing or suppressing riots when 
 thereunto rccjiiircil, in writing, which writing 
 ahall express on the face thereof tiic actual 
 occurrence of a riot, disturViaiicc or eiiiergcncy, 
 or tlie anticipation thereof. When so called 
 out the liiibility to pay for the services of the 
 militia is imposed upon the Municipality in 
 which such services are re(iuired. 
 
 Several coniiiaiiies of niilitia in the Munici- ! 
 pality of Cape Ihcton were called out in pursu- I 
 ance of a reiiuisitiod, which read: " It having ; 
 been represented to us that a disturbance has 
 occurred and is .still anticipated at I/lngaii, be- 
 yond the power of the civil j)ower to suppress, 
 you arc therefore hereby ordered," &c. 
 
 Ill Id, that in order to make the Municipality 
 liable for the iiuunteiiance and pay of the 
 militia, the re(jiiisition mast comply strictly 
 with the Statute, and that as it failed to ex- 
 press on its face the actual occurrence of a riot, 
 disturbance or emergency, or the anticipation 
 of any, but only .set out a representation that 
 a disturbance had occurred and was still antici- 
 pated, which representation might have been 
 found on investigation to be unwarranted by 
 the circumstances, the Municipality was not 
 liable. 
 
 Head v. I'he Municipal it y of Cape lireton, 
 
 7R. &Ci., 200; 
 7C. L. T., 349. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, that the requisition was sufficient. 
 
 The Statute also provides that the Mimiei- 
 pality shall pay the expenses of the service of 
 the militia when so called out, and, in case of 
 refusal, that an action may be brought by the 
 officer commanding the corps, in his own name, 
 to recover the amount of such expenses. 
 
 are liable, and would continue liable in tlnir 
 own persons, if there were no mortgage. The 
 power to borrow nKJUey implies tiie power to 
 mortgage. In making calls upon conliilnitDiifs 
 summonses will be granted by a dudge t" the 
 several parties reijuiring the amounts fur which 
 they are liable to be paid within a s])eciticil time 
 without costs unless resisteil. 
 In re Xaih lirirk d' Polti ry Mainifacliiriinj Co., 
 
 3 X. S. l).,'2.-.4. 
 
 6. Municipal corporation— Liability of for 
 
 j negligence— I'laintitr while crossing, on Iiuih'- 
 Itack, a bridge within the municipality, received 
 injuries found to have resulted from tlic mgli- 
 gcnce of the corporation and its o'iii'crs, 
 
 //fid, that the defendant cor|)oratinii wiis 
 liable; that the fact of the bridge bciiij.' on a 
 liighway was no defence, or if a defence slioiiM 
 have been ]»leaded ; and that no notice of iclinii 
 was necessary. 
 
 Mct^nurrii- v. Thi MiniiciintHty nf St, .!/«/•// '.<, 
 
 .-. K. .V (;.,4!«. 
 
 7. Municipal — Injury by derectlrc nMt- 
 
 walk — Liability of^ I'huntitt' fell ami brnke a 
 leg in consecjuence of the defective coiiilitimi <>i 
 a wooden sidewalk in the 'i'own of New i'-hn- 
 gow. The sidewalk had been constiintcil hv 
 private subscription previous to tlie iiRui pi na- 
 tion of the town, and at the time of the aicideiit 
 many of the planks were cracked and rctteii. 
 A judgment having been given in favor of 
 plaintitl" for .S.")00 the Court refused toilistiiib it. 
 Grant v. The Toicn of Xtw Glaymr, 
 
 6 R. it 0., »'■ 
 6C. L. T.,14'.'. 
 
 8. Municipal Incorporation-By-law pro- 
 viding for expropriation of lands for street 
 pu/poses held ultra rin.v— Chapter 54, of the 
 Acts of 1874, incorporating the Town of I'ictou, 
 conferred upon the Town Council "power to 
 
373 
 
 CORPORATION. 
 
 374 
 
 control the making, inaintaii'iiig, improving and 
 altering tiie roatls, streets," Ac. . . . " of the 
 town, anil the laying out of new onos if neces- 
 sary," anil also to make by-law? touching all 
 matters within their authority, out gave no ex- 
 press authority to expropi'j.ite lands for street 
 purposes, or to make by-hv.is in relation thereto. 
 Till' Act of Incorporation gave the t'ouncil the 
 same ])o\vcr in relerence to the expropriation of 
 lanils for street purposes as were formerly vested 
 ill the Sessions. 
 
 The Town Council passed a liy-law for the 
 cxpiopriiition of lands rei|uircd for street pur- 
 poses, ami proceeded under it to expropriate land 
 of tiie ]ilaintitr. The liy-hiw ))rovideil for tiie 
 a]>pi'iuseiiieiit of lands taken liy three ajjpraisers 
 appiiiiiteil liy t'.e town instead of l>y one 
 appraiser ajipointed liy the town, and one by 
 tile owner, as under the Statute, 
 
 ]hl(l. per Smith, \Veathcrl>e and Hitchie, J.J. 
 —That the by-law was ultra rinx the powers 
 of the Council, 
 
 McDonalct, .1,, di'^-riilhiij. 
 
 }'' )• Kitclie, .1, — Tlie making; of by-laws for the 
 ex]irHpiiiition of land is an extreme |)iiwcr and 
 shonlil not be held to be given bv implication 
 unless iilisohitely nece.s.siii'y to enalilo tlie Coun- 
 cil to jHitorni the duties imposed upon tiiem. 
 In the |preseiit case no such necessity ajipearcd. 
 
 (;;//;- v. Tin Town of J'ir/oii, 7 H. * <i., I'.'S ; 
 
 7 C. L. T., 147. 
 
 0. Municipal Liability for injuries caused 
 
 by detects in bridge Notice of defects -Re.s- 
 ponsibility for negligence of commis.sioner— 
 Negligence in not appointing surveyor of 
 highways- Judgment set aside and new trial 
 ordered .\n action was brought against the 
 ikfeiidiiiit Mnniciiiality for injuries sustained by 
 liliiiniills lorsc, I'csiilting in its death, caused 
 liy the ilet'citivc condition of a bridge on a ptdilic 
 riMiJ in tlic Municipality. Thf. evidence showed 
 tiiat tile covering of the bridge was more than 
 cigiit yi'ars old at the time of tlie accident, and 
 reipiiieil renewing, .\l.so, that the un.safc cou- 
 ililioii of the bridge was known to the connnis- 
 sioiier appointed by the Municipal Council to 
 repair tlie road upon which it was situated, but 
 that lie delayed repairing the bridge for over 
 three months, and did not touch it until after 
 the aeeiilent. 
 
 II^I(I, that the defendant was respimsible for 
 the negligence of the commissioner in not reco- 
 vering tlie bridge and making it safe. 
 
 That the Municipality having had notice of 
 the ilefective condition of the bridges on the 
 foail, in order to relieve itself of responsibility, 
 should have shown that the bridges had been 
 
 1 examined and all the necessary repairs done to 
 ; make them safe. 
 
 That the Municipality was further guilty of 
 
 negligence in omitting to appoint a surveyor 
 
 ! of highways for the district in which th<j road 
 
 was situated, who, it must be assumed, would 
 
 ^ have repaired the bridge whe , it became unsafe. 
 
 Judgment foi- defendant was set aside and 
 
 new trial ordered. 
 
 Diamond v. T/ii Munifiiiality of East Hanix, 
 ■20 N. S. R., (S R. &(i,), 9. 
 
 10. Municipal corporation — Liability of, 
 
 for negligence -Efl'ect of reserving a case for 
 Court— riaintitr recovered a verdict for .S.'KtOO 
 against the defendants, foi- injuries caused by 
 falling over an nnrailed bridge, under a charge 
 l>y which the jury was instructed that the acci- 
 dent resulted from the iindoiibtcd negligence of 
 those on whom the duty lay of keeping the 
 briilgt^ in a safe condition, and tiiat the liability 
 of the defendant was a matter of law which he 
 would leave to tlic full Court. 
 
 Ifehl, that the only question reserved for the 
 Court was whether, assuming the accident to 
 have resulted from negligence, as put to the 
 jury, the defendants were liable, and that if the 
 defendants were dissatislied with the charge as 
 to negligence, they slmuld have rciplired that 
 issue to be put to the jury, and should have 
 iiKliided inisdireitioii in the ground for setting 
 ! aside the vcnliit, Weatherbe, J., concurring, 
 
 Tliomi)siin. .(., i/!x<iiifiiiii,lii/il. that this was 
 a reseivatinii of a mixed iiuestion of law and 
 fart, and that in the absence of evidence to 
 satisfy the Court as to the negligence of the 
 defendants, the verdiit could not lie upheld. 
 McDonald. C. J,, concuiiiiig, 
 
 fyiifsDii V, 77/1 Miiiiiii/ia/if!/ of Cnfrhixf, r, 
 
 OR, fed., .-.49. 
 
 On a/i/tiaf to fh'- Sn/intni' Court of Canaila, 
 Ifi/il. .Strong, .T., ili-'iinliiiii, that the ])laintiff 
 wa-- entitled to retain his verdict, 
 
 /'' /• Strong. .1,, iliiirnliiKi, that there was not 
 siitiicient evidence of negligence to warrant the 
 verdict, and the case reserved for the Court 
 being on ([uestioic- of fact as well as law, a new 
 trial might have been ordered, notwithstanding 
 the objection was not takon either at the trial 
 or in the nde nisi. 
 
 Co/rhisfer v. Wa/.so7i, lOth March, ISK',, 
 
 Cas. Digest, 98. 
 
 11. Municipal corporation -Obligation to 
 
 guard dangerous places on public roads— Neg- 
 ligence —Verdict of Jury set aside for contra- 
 dictory and inconsistent findings— Disqualifi- 
 cations of jurors— Plaintiff sustained severe 
 
375 
 
 CORPORATION. 
 
 376 
 
 injuries by falling over a precipitous einbnnkinent ' 
 adjoining tliu public liigiiway. The locality was 
 known to ho iliingcrous, but no precautions had ' 
 been taken to guard against accident by fencing 
 or otlierwi.so. It was udniitted that in the 
 absence of contributory negligence on his part 
 plaintill' was entitled to recover. The jury 
 found that there was such contributory negli- 
 gence, but they also f(mnd that the road 
 reipiircd protection between the travelled track 
 and the edge of the blull", but yet that it was 
 safe after dark fiU' anyone who used ordinary I 
 care, and in tlic face of contradictory evidence 
 tiiat plaintill' had sustained no damage, assum- 
 ing that he was entitled to recover. 'Die 
 findings of the juiy, and the verdict for defend- 
 ant liascd upon them, were set aside with costs. 
 Sr-mh/c, that Chapter 100, of .">th Revised 
 .Statutes, removing certain disciualitications of 
 Judges, .Justices of the t'eace, or persons em- | 
 powered l)y law to exercise judicial functions 
 does not apply to jurors. 
 
 Kill'/ v. T/ii Mniiifljxtlitii of Kiiii/i, j 
 
 7 U. \- (!., fiS; j 
 7C. L. T., 11!!.! 
 
 12. Muniripal - Prescription aj;ainst tlic 
 
 Crown— Right to maintain drains leading from 
 private property to drains on the public high- 
 way—Liability of Municipality for negligence 
 of surveyor of highways -Obligation of Muni- 
 cipality to preserve private rights —Remedy 
 by mandatory injunction — Plaintitl" was tlic 
 prr>])rict(>r of land wliich for a jHTJod of thirty 
 years had been drained into an oi)en drain 
 jjarallel to and within the limits of the public 
 highway, and thence by a covered drain across 
 tlie highway to a river. The defendant's sm-- 
 veyor altered the open drain by converting it 
 into a covered drain, which was no larger than 
 one of plaintill's drains running intfi it. As the 
 result of the change two of plaintiff's drains 
 were entirely stopped up and the drainage of 
 his liouse and land seriously impaired. 
 
 Ifi/i/, that a sudicient prescri])tion was pi'oved 
 to entitle plaintitf to the use of the o))en drain, 
 either as against the C'rown or a private person, 
 for the pur])ose claimed, consistently witli the 
 rights of the |)ublie to the unrestricted use of 
 easement of jjassage and corresponding right to 
 have the way ethiiently u)>held. 
 
 vl/«n, that it was incundient upon defendants 
 to show that the end desired by them could not 
 have been etliciently secured without trenching 
 upon plaintiff's riglits. 
 
 Al.io, that under a prayer for a decree to 
 " re-open and re-cimstrnct the said drain or 
 gutter, and .said drain under the highway afore- 
 said, so that it will drain the lands of the plain- 
 
 tiff in as full and ample a manner as it did l)e. 
 fore the grievance complained of," plaintill' was 
 entitled to a mandatory injiniction to rcstoio 
 him to the condition in which he was before the 
 grievances complained of took place, 
 McDonald, C J., (lii-iintiiiii. 
 Jiiuii.ion V. Mitiiifiinltlji nf East Iluntt, 
 
 (ill. &(}., 71 ; «C. L. T., 141, 
 
 13. Municipal - Kailway damages Lla. 
 
 bility of a municipality to pay damages on 
 account of a railway running wholly through 
 another municipality in the same county- 
 Construction of Chapter 70, R. S., (3rd series) 
 — Lands for stations and roadway fur tlie 
 Eastern Kxtension Railway were exj)r(ii]riattil 
 under tlu; provisions of t'liajjter 7<>, of the 
 Revised ."^latiites, (.'{rd series), which were iiimle 
 applicalile by C'liajjler 74, of the Acts of 1871). 
 Cliaptcr 70 proviiled, among other things, for 
 ihe expropriation of lands for laihvay iMuimscs 
 and foi- compensation to tlie owners theriiiif, thu 
 amount payalde foi' buildings destroyed, huids 
 taken, etc. being made a county charge. .Sec- 
 tion .'■>4 provided that thet'ustos of tile county 
 should <lcliver to each party a certilicatc cif the 
 amount to which such party was entitleil luukr 
 the ap|)raisement, which should authoii/c >ULh 
 party to receive the amount with intcnsl. m\\ 
 which should be a charge u|)on the county toi' 
 all the moneys payable thereunder untd fully 
 discharged. .Section .■).'"i provided that the 
 damages appraised ami estal dished sliould lie 
 apportioned ))y the Sessions amongst the tnwn- 
 ships, districts and places in each county iuul 
 district, and that the ])roportion of each towr- 
 .shi]), district and jdace, should r)e assessed ujion 
 their inhabitants, and should be levied .uid col- 
 lected and paid over on the same priMcipIe iis 
 county rates. 
 
 r>y " Cluipter 2!), of the Acts of 1.S4I), the 
 township of .St. Mary's was set off out of the 
 County of Guyslwro' as a separate and distinct 
 sessional district, and by Chapter 1, of tlic .\ct3 
 of lH7!t, the district of .St. Mary's, ami the 
 remaining partof thcCountj' of (iiiysborn', were 
 placed under separate Municipal Councils, aiul 
 were known as the Municipalities of Ouysboro' 
 and St. Mary's. 
 
 The lands ai)propriated for the pmposes of 
 the Eastern Extension Railway lay wholly in 
 the Municipality of (Ouysboro', and the damages 
 were appraised and paid to the proprietors of the 
 lands taken by means of an assessment imposed 
 by that Municipidity upon the ratepayers resi- 
 dent within. Proceedings were then taken to 
 collect from the Municipality of St. Mary s » 
 proportion of the damages so paid. 
 
377 
 
 CORPORATION. 
 
 378 
 
 ///(/, that tlie inliabitants of the plainViH' U-otn tlio iipgligcnce nf the corporation ami its 
 Mrriici])iillty, l)y reason of tiieir being iniiabi- oHicers. 
 
 t.iMts of tiif County of (luyslmro' were lial)le to fft/i/, tii:it the defenilant corporation was 
 )u assessed in connnon with the otlier inhabi- liable ; tliat the fact of tiie ))ridge being on a 
 taiils nf the County for tlie payment of the bigiiway was no defenco, oi', if a defence, should 
 (laiiia^jt's, but that tiiere was no liaijility to re- | have l)een pleaded, and tiuit no notice of aulion 
 fuiiil to the plaintitV Municipality any portion was necessary. 
 (if !•>• aniouiit ailvanced by tliat Muiuci])ality. 
 '!'■■>: Miiiiii'ii"t^i'!/ of <liiii<hnro' v. Thf Muni- 
 
 ri/Ki/i/y of St. Mari/''!, 7 H. & (J., l.'U ; 
 7C. L. T., 173. 
 
 14. Miinlripal ~ Xiilsance in the high- 
 way special damages- -Whether city liable 
 for non-repair of streets damaged by ice or 
 snow -Notice of action — Lawful traffic— Tiie 
 
 l)iiiuiiial streets of Halifax were in audi a con- j 
 (litioii frniM acciiiiudiition of ice and snow hard- 
 cMiil into iiicgulaiities of sui'face, tliat the 
 lilaintitl', owner of a line of oiiiiii))USMes, liad ids j 
 veliieles iiijincd and .suH'ercd loss of custom. 
 Tlie nniire|)aii' continued during tlie greater 
 ]iait lit' tlie wiutei- and after full notice to the 
 city aiiliiorities. 
 
 llilil, 1st, that tlic city wa.s .iable for plaiii- 
 till's injuries ; 'Jnd, that negligence had been 
 proved ; .'{rd, that tiie plaintitl' was not guilty 
 of cniitributory iiegligciiee in not using other 
 stioL'ls instead of those conijilaincd of ; 4tb, lliat 
 niitiee of action by plaintiti's attorney was 
 sutlieieiK and unobjectionable, althougii in tlie 
 alteiiiative as to aiiiciids being paid. 
 
 Wlieie an individual or corporation is liable 
 to iiiilictiuent for non-repair, an action will lie 
 at tlie suit of one who suffers .special injury. 
 
 Livbility is not, in all cases, to be inferred 
 fiiiiii eiiai'luieiits ))hiciiig tlie liigiiway under 
 ik'fciiilaiit's control. Tlie ohiiijatinii must liave 
 been imposed on or transferred to defendant. 
 
 Xii distinction exists between nonfeasance 
 and malfeasance, in relation to such liability. 
 Il'ff //,-.,• V. Cilij of Halifax, 4 R. & (i., 371. 
 
 On ui'jKnl to the Supreme, Court of Canada, 
 ll'i'l, 1, Ritchie, C. J., dUieiitiinj, that it was 
 the duty of the corporation to keep the streets 
 in good repair ; and, "2, (Jwynne, J., dhxentbuj, 
 that the plaintitf was entitle<l to retain his 
 verdict, having proved special injury, and the 
 damages awarded not being too remote nor 
 excessive, 
 
 •ludgiiient of the Supreme Court of Nova 
 Scotia affirmed, and appeal dismissed with costs. 
 The City of IMifax v. Walker, 
 
 Kith Ftbriiary, ISSo, Gas. Digest, 98. 
 
 15. Notice of action— Plaintiff, while cros- 
 sing oii horseback a bridge within the Munici- 
 pality, received injuries found to have resulted 
 
 Mctjnarrie v. The MnnieiiiuHty nf St. 
 
 Mary'-<, ."> R. & (J., 493. 
 
 10. Right to remove member for crime- 
 Quo warranto — Where a party elected as alder- 
 man ill October, IS(i2, had been several times 
 convictcil of drunkenness, assaults and disor- 
 derly coiidiu^l lietween the years IS.'iOiind l.S(5'2 
 but there was no .such conviction for six months 
 j previmis to his election, and no evidence that he 
 was a common drunkard. 
 
 Ill III, that the (^ity Council had no power to 
 declare his election a nullity, and tf> direct that 
 another alderman should be elected in his place. 
 
 A corporation has no power to remove a iluly 
 elected nicmlier of its own liody f(n' crimes com- 
 mitted previous to his ekM'tioii. 
 
 It is not necessary in this Rroviiiee, on an 
 application for a quo irarniiiio iiiforniation, that 
 an atfidavit should be filed by the relator stating 
 that the iiintion is made at his instance. 
 
 //( re Thoillns S/ii lire, 1 ()1<1., X]3. 
 
 17. Sale by corporation - Conversion by 
 
 Sherift" -Sale under order of Court — 4tli Rev. 
 Stats., N. S,, c. 97 and c. 53, sec. 15.— Tlaintiff 
 purchased all the jiersonal prapeity of the L. 
 Coal MiningCo'y., after lhe(\)mpanv had become 
 hopelessly insfdvent, receiving a bill of sale 
 signed by the agent of the C nnjiany, but not 
 sealed with the coi'poratc seal, proved to have 
 been possessed bj- the Comjiany, He took pos- 
 session of the goods at the time of the sale, and 
 remained in possession until the cause of action 
 indicated l>elow arose. 
 
 Held, in action against a Sheriff for selling 
 the goods under an order of the Supreme 
 Court, following a levy under a writ of attach- 
 ment against the L, Coal Mining Company, that 
 rnder the provisions of chapter .^S, 4th R, S., 
 section 15, the use of the corporate seal upon 
 the bill of sale was not necessary. Wilkins, J., 
 difsentiiKj. 
 
 Held, on demurrer to the defendant's plea, 
 which set out the attachment and levy of the 
 goods as and being the goods of the L. Coal 
 Mining Co.," and the sale of the goods, " being 
 the property of tie L. Coal Mining Co." that 
 the plea was bad, as it did not allege that the 
 goods were not the goods of the plaintitf. 
 
 Wilkins, J., dMnentiiifj. 
 
 Bradley v. McLean, 2 R. & C, 584. 
 
379 
 
 CORPORATION. 
 
 380 
 
 On appeal to the Supreme Court of Cannila, 
 
 One H. institutt'il proceedings against tlie L. 
 C. M. t'o'y, till' ollii'fr's of which lesiiloil in tlie 
 Unitt'il States, Iml wliicli did hu .iness in Xovii 
 Sco'.ia, and, on the 'Joth Ma' , 1872, caused u I 
 writ of attaclinient to lie issued out of the | 
 Su])fi'nic Court at Andierst, under tiie Absent , 
 and Aliriiondiiig Dclitois' Act of Nova Scotia, 
 directed to tiie a|)))elhint, the Higii SiierifT cf 
 the County of Cuniberhmd. Under this writ, i 
 tlie ii|)j)cllant seized certain ciiattels, as iicing 
 the ciiattels of tiie said Coniiiany. On tlie 12tii , 
 Novcinlier, 1872, an order was issued out of the 
 said Court, directing the ajipellaiit to sell, and 
 ai)i)ellaiit did sell said thattols as hcing of a 
 perishalilc nature. On the 11th Dei:enil(er, 1874, 
 a discontinuance was filed in the said cause liy 
 H. On the .Sdtli May, 187G, the resjiondent 
 coninienced an action against the appellant for 
 the conversion of the chattels in question, con- 
 tending .-hat the Company, having failed in its 
 operations, and lieing desirous of winding up 
 its affairs, and heing indebted to him, liad sold 
 and conveyed to him the said chattels by a cer- 
 tain memorandum of sale, dated July 5th, 1867, 
 "signed on behalf of the Comitany," by one 
 " Hawley, agent." To this memorandum a seal 
 was afh.xed which did not purpoi't to be the seal 
 of the Company. The appellant pleaded to the 
 declaration that he did not convert ; goods not 
 plaintiff's; not possessed; and also a special 
 plea of justification, setting forth the proceed- 
 ings by H. , and that he had seized and sold the 
 goods as the goods of the Company, in obedience 
 to the attachment, and order issued in said 
 proceedings. The respondent replied, setting 
 up the discontinuance. The apjiellant rejoined 
 that the proceedings were not discontinued, and 
 that the discontinuance was not filed till after 
 the sale. He also demurred, on the ground that, 
 being bound to obey the order of the Court, he 
 coulil not be affected by the discontinuance. 
 At the trial a verdict of S500 damages was ren- 
 dered for respondent. The appellant obtained 
 a rule nini to set aside verdict, and the rule and 
 demurrer were argued together. The Court 
 below refused to set aside the verdict, and gave 
 judgment for plaintiff, on the demurrer. 
 
 Held, that the appeal should be allowed ; that 
 the plea of justification show'ed a sufficient 
 answer to the declaration ; that the replication 
 was bad, and that the verdict must be set aside 
 and judgment be for the defendant on the de- 
 murrer. 
 
 Ptr Ritchie, J., dissenting. — The seizing 
 under the attachment, and not the sale, con- 
 stituted the conversion ; that there was suf- 
 ficient evidence to show that the chattels in 
 
 question had been transferred by the Company 
 to respondent, and that under sec. 1,"), cap. 53 
 of 4th Hev. .Stats., the sale of the chattels did 
 not re((uire to be under the corporate seal of the 
 Company. 
 
 I'tf Strong, J. —The sale, and not the suizuii', 
 was the conversion comphiined of, and to this 
 the order of the Court was a suHicient an.swer. 
 Soiilili-, a mere taking of the goods of a tliiid 
 person under mom attachment against a dcftii- 
 dant to keep them in midio until the tciiniiiii- 
 tion of tiie action, is not a conversion. 
 
 7Vc Henry, J.— The order for the sale would 
 not have been a justification for the original levy 
 on the goods, as well as for the sale, if they liad 
 been the property of the respondent, but tlie 
 evidence failed to show a sale by the Coinpaiiy 
 to the respondent. .Such a sale woulil rciiuiie 
 to be under the corporate seal of the Conipuny, 
 and did not come witiiin the meaning of sec. 15, 
 cap. 53 of 4th Rev. Stats. 
 
 McLean v. Bradley, 2 S. C. R., 5.35. 
 
 18. Suits a$;ain8t-2nd R. S., c. 134, Fart 
 
 II., 8. 1 — The provisions of the Practice Act, 
 which enable proceedings to be taken in the 
 Supreme Court against a defendant abroad after 
 service, do not extend to suits against corpora- 
 tions. 
 
 Belloni v. Sydney and Louisbury Nailiray Co., 
 
 2 N. S. D., 73. 
 
 19. Trespass by Individual corporaton- 
 
 Plea — Corporation may sue its members— 4tli 
 R. S., c. 32, s. 20— Two of the defendants and 
 another were duly elected school trustees in 
 October, 187.3. In December the defendants, 
 without the concurrence of the third trustee, 
 removed the school house from its then site. 
 No school was maintained during the winter, 
 though efforts were made by the trustees to 
 maintain one. In June, 1874, the Comniissiou- 
 ers of Schools for the district including section 
 16, dismissed the three trustees, and appointed 
 three others, assuming the power to do so under 
 4th R. S., c. 32, s. 20. The newly-appointed 
 trustees brought an action of trespass against 
 the two trustees who had removed the school 
 house, and their servants, for such removal. 
 
 Held, that, under the circumstances, the Com- 
 missioners had no right to dismiss the original 
 trustees and appoint others ; and that even if 
 their appointees had been legally appointed 
 trustees, no action would lie at their suit against 
 defendants for acts committed during their term 
 of office 
 
 Trustees of School Section 16 v. Cameron, 
 
 2 R. & C, 328. 
 
381 
 
 COSTS. 
 
 382 
 
 Onapixal to the Supreme Court of Canada. 
 
 J. C. and J. A. C, while Trustees of School 
 Si'itiuii X<). Hi, Soutli District of I'ictou County, 
 ami N. ('. ii.s tiieir servant, entered upon the 
 siiimil plot lielonging to their section, removed 
 ihu siiioril liouse from its foundation, and dea- 
 ti'ivi'd a portion of tiie stone wall. .Sul)sef|uently 
 the trustees of said school section lirougiit an 
 notion of trespass qtiarv r/uiisvm frujit and dt 
 hoiiiK nsportutis against the said J, C, J. A. C, 
 ami \. ('., for injury done to the school house, 
 tile property of the section. The defendants 
 [ileailiMl iiitir alia justification of the acts com- 
 ])laimil of, asserting tiuvt tiie acts were legally 
 |ii'ifonncd liy tiien; in their capacity of trustees. 
 ,Siilj-sec. 4 of s. 80, c. .S'J of 4th Rev. 8tats., de- 
 clares that the sites for school houses shall he 
 (ktined hy the trustees, subject to the sanction 
 of the three nearest Commissioners residing out 
 of tlie section. In this case tlie sanction of the 
 tiiree nearest Commissioners was not obtained. 
 
 Hild, on appeal, that under 4th Rev. Stats., 
 e. .S2, J. C, J. A. C, and N. C. were not 
 authorized to remove the school house from its 
 site in the manner mentioned. That defendants 
 having sul)se<iuently abused their right to enter 
 upon the lands of the corporation by an overt 
 act of spoliation, the plaintifTs, who are a corpo- 
 rate body and are identical with the corporation 
 wliich existed at the time of the trespass, can 
 maintain trespass against the defendants for the 
 injury done to the corporate property. That 
 wiien an action is brought in the name of a cor. 
 poration without due authority, it is not suffi- 
 cient for the defendants to plead that the 
 plaintiffs did not legally constitute the corpora- 
 tion, but in such a case defendants ought to 
 apply to the summary jurisdiction of the Court 
 to stay proceedings. 
 
 Pictou School Triwfees v. Cameron, 
 
 2 S. C. R., 690. 
 
 Sie, also, BANKS-COMPANIES - 
 
 COSTS. 
 
 !• Abandoned rule— Motion to discbarge 
 
 rule must be made in order to get costs— 
 Though notice of the abandonment of a rule be 
 given, yet the party receiving such notice must 
 move to have it discharged in order to obtain 
 his coats. 
 
 Swan V. Pryor etal.,2 Thorn., 13. 
 
 3> Accounting on dissolution of partner- 
 ship—where plaintiflf prayed for an account on 
 the dissolution of co-partnership between him- 
 
 self and defendant, alleging that a balance was 
 due him, but the Master's report, showing a 
 large balance to be due to ilefetidant, was sus- 
 tained, except as to a comparatively small item, 
 //lid, that the defendant was not entitled to 
 a decree ii'ilh costx as the pluintiit' had succeeded 
 in establishing his right to one half interest in a. 
 mill, which was disputed. 
 
 1,'odtt V. Lelilanc, R. E. D., 75. 
 
 3. Action for penalty-Default and exe- 
 cution issued — Costs on setting aside— Where 
 
 ! in an action for penalty for taking clothes of a 
 seanum of H. M. Navy, there was a default and 
 , execution issued thereon, and the defendant 
 i moved to set aside the default on the ground of 
 : the ignorance of the party as to the time within 
 whicii he was required to plead, and produced 
 ! an artidavit of his innocence, the default was 
 I set ajide on payment of costs actually incurred in 
 consequence of the default, and on giving secu- 
 rity for payment of the penalty, with costs. 
 
 Queen v. Jliilhj, 2 Thom,, 230. 
 
 4. Administrator— When liable for— To 
 
 make an administrator liable to pay costs out 
 of his own pocket, the notice required by Acts 
 1853, c. 12, s. 10, must be given, and f.-aud on 
 his part must be shown. 
 
 In re Ralxton, 2 Thorn., 195. 
 
 5. Agent of absconding debtor entitled 
 
 to costs of motion to discharge — Before the 
 passing of 10 Vic. c. 24, the Court had power 
 to discharge a person as agent of an absconding 
 debtor, the first term, when the creditor did 
 not give any notice of his intention to require 
 a personal examination. The agent in such case 
 is entitled to his costs of motion of discharge. 
 
 Creif/hton v. Cook et at., 2 Thom., 78. 
 
 6. Amendment of rule— Tbe Court will 
 
 permit the defendant to amend the description 
 in the consent rule after verdict against him, 
 upon payment of costs of former trial. 
 
 Gillis V. Canxphell, James, 48. 
 
 7. Amendment opposed but allowed — 
 
 Unsuccessful party must pay costs — Where a 
 rule for an amendment is opposed the costs 
 must be paid by the unsuccessful party. 
 
 McKay v. McKay, 2 Thom., 75. 
 
 8. Appealable amount— Costs cannot be 
 added to the amount claimed, for the purpose 
 of bringing it up to the appealable amount. 
 
 Bums el al. v. Richards, 1 N. S. I). , 509. 
 
383 
 
 COSTS. 
 
 384 
 
 9. Appeal abandoned - Respondent en- 
 titled to what costs— Appeal piipelH weru sent 
 back to tlie .liulye of tlie ('i)mity Court to lie 
 aineuilcd, tviid weru ainuiuled, uftur wliicli tlie 
 a]i]H'lliint aliaiidoiu'd his a]i|ieal. 
 
 Ill III, that the respondent was entitled to his 
 costs lip to the day on which notice was given 
 of the alianilonnient of the appeal. 
 
 Mi-Uod V. Diui/ap, •-' K. & (!,. 4im. 
 
 10. Appeal Costs of /'- >■ KiyUy, J. — 
 Costs do not follow, as a matter of course, 
 where the apjii'al is sustanied. 
 
 J'l r Weatherhe, .1, — Costs of the appeal follow, 
 as a matter of course. 
 
 Ill ft A/ijiial S/i jihi II Siriit, ■'{ R. \: (i., ;{i)7. 
 
 i 
 
 11. Appeal Costs withheld from success- 
 ful party for irregularity lielow- Wiieru the 
 resj)ondent succeeded, on a]i|ii'al, liut there ap- 
 peared to have liccn some irrc;4ul:irity on his 
 part in the proceedings helow, the extent and 
 importance of which were uncertain, costs \\ere 
 not allowed. 
 
 Maliriii V. (id III 1)1011, 4 H. it <!., '2'A'2. 
 
 12. Appeal from County Court — Appeal 
 
 from the judgment of the County Court dlowed, 
 on tlie evidence, with costs, and judgment to bo 
 entered for iilaiiitill' lielow, witli costs. 
 
 Mi//il V. Lon/h/, 4 1!. ScO., 300. i 
 
 I 
 
 13. Appeal from decree of Probate Court 
 
 setting aside will —Costs diiected to lie ])aid 
 out of estate. 
 
 Ill rt L'sfafi: of Phil, .S R. & C, 307. 
 
 14. Appeal from Probate Court — Costs 
 
 given to successful party liefore the Judge of 
 Probate, except costs unnecessarily incurred. 
 
 In ri E^iu'i of Siiiiji-soii, .'< li. A' {'., 'S7u. 
 
 13. Application for discharge of insolvent ; 
 
 — Where the discharge was refused on appeal, [ 
 
 costs were onlered to bo paid out of the estate. ] 
 
 III re Ilutfhinton, Insolvent, 3 R. & C, 40. ! 
 
 16. Attorney's lien for — Attachment — 
 
 On a motion on behalf of plaiiitirt', under the 
 Garnishee Aot, for an attachment of all debts 
 due the defendant by M, a lieu for his costs was 
 set up by the attorney who had entered the 
 judgment for the defendant against M., but no 
 notice had been given by the attorney to M. , 
 nor had any effort been made by him to secure 
 hia costs. 
 
 Held, that the claim of the attorney could 
 not prevail over the attachment. 
 
 Cock V. lilisH, 1 R. & C, 299 
 
 17. Attorney's neglisence - Liability for 
 
 costs —'I'lie Court will not, on a sumnuiry ii]ipli. 
 cation, holil an attorney liable for costs for neg. 
 ligence, unless such negligence is clearly and 
 unequivocally iiroved, 
 
 Elliolt ,t nl. v. Ldddi, '2 Old., ITo. 
 
 18. Award set aside — When one of two 
 
 arbitriiiors who hail made a certain award, siil). 
 seiiui'iitly made an ailidavit that he intemleil to 
 decide the case according to law, but on recon. 
 sideration of the matter and on reperusal of tiio 
 ininutes of evidence, he felt persuaded tiiiit in 
 making the award he misunderstood tlie evi- 
 dence given in the matter, inasmuch us he UmV 
 for granted that no evidence was given iif u 
 certain fact wliicii, upon the ininutes of the 
 evidence being read before the Court, by cim- 
 sent, ai)peared to be material and to lie in 
 ])roof. 
 
 Hi III, that the award must be set aside, luit 
 without costs. 
 
 DfuBarri'i v. Lnndri/, '2 11. iV ('., 14.'), 
 
 15). Changing venue — Costs - The ( (nut, 
 
 being of opinion that the cause could he iiiine 
 conveniently tried in another County than tlmt 
 in which the venue was laid, made the rule to 
 change the venue absolute, witii costs. 
 
 //arrii v. Fader, 2 Old., ."iTl. 
 
 20. Corporation — Liability of members 
 
 of for costa— Motion for rule nisi for costs nf 
 the day for not proceeding to trial, against the 
 individual members of the corporation of St. 
 Paul's Churcii in Ainlierst. Costs hud heeii 
 taxed and execution issued against the corpoia- 
 tioii, but returned unsatisfied. Ap))licatioii iiad 
 been made to the oflicers of the cor])oratioii fur 
 jiayment of the amount, wliich they had refused, 
 although they had funds in their hands. Cliiip. 
 87 of 1st Rev. Stats., s. 13, provided that the 
 individual members of the corporation sliould 
 not be lialile beyond a specified amount. Tlie 
 rule was drawn reijuiring them to show cause 
 why the execution shoulil not issue agiiinst the 
 individual members of the corporation, and also 
 that proceedings lie stayed. 
 
 Per Haliburton, C. J.— Take yonr rule for 
 the execution only, or else, in the alternative. 
 You cannot have a cumulative reniedj'. 
 Church Wardeiin, ifcc, Amhemt, v. Davison, 
 
 James, 106. 
 
 21. Costs of re-appraisement of lands - 
 
 Commissioners were appointed under an Ac* to 
 re-appraise lands taken for railway purposes m 
 Digby County, and it was provided that the 
 
:is.) 
 
 COSTS. 
 
 386 
 
 leappraisiiiM'iit, " togetlier with the costs liiTi)- 
 tiifiiii' iiiriincil." shoulil lie a Coiiiity i'lmi'>;i'. 
 
 Ilild, that thi' coKtH fur survicuH liufmi' the 
 Coiiiniissioiii'rH for n!-ii|ij)i'iii»L'im'iit coiihl nut lie 
 tiixiil, iis the Act |)riiviikMl mily for tlio.se iiu'ur- 
 iiil |)iinr to its |),iHMiiig. 
 
 Ill Iv \\'i^'> ni L'oiiiitiin' Ititihniji, 
 
 Ex- imt-ti Hardy, 1 K. \- (i., 17(1. 
 
 '*'2. Costs on exrt'pllons to answer In 
 
 Equity Wlii'if iilaiiitill' took tliiity-oiii' extt'i)- 
 liiiiis to ih'ft'iiiliuit'.s iiiisuur, on four of which 
 liil'uiiilant >.iK(.'t't'ih'il on iijipfiil, pliiintilJ' was 
 (inlcii'il to ]M\y foiii' tiiit'ty-liists of (li'fcnihint'H 
 iiists (if a]i|K'iil, iind .lefcnihint twenty-seven 
 thirtytiists of ]ilaintiflF"s, tlie costs to he set olF. 
 liiirhiin- V. Il'ii/hm. ."i H. it (i., ."i()4. 
 Tiiis case was appealed to the .Supremo Court 
 (if ('aiiada, hut tiie aj)peal was disposed of on 
 iniitioii to dismiss. 
 
 23. Costs rcniscd Sueressrui pari) (nking 
 
 untenable ground llihl, that plaintill was en- 
 litlcd III ret'ovcr for additional work, hut not on 
 tlK';.'iinin(l tliat the continct had lieen rescinded ; 
 ami |ilaiiiliir liaving contended that the verdict 
 fur ilfft'Milaiit should he set aside on thi.s unten- 
 alili' yrmnid, no costs of th" argument were 
 givi'ii. 
 M'Knij V. Tht fllarc liay MiiiiiKj Com/xin;/, 
 
 H. (.t (i., 528 ; C. L. T., 043. 
 
 24. Costs -Where no Jurisdiction, Ac.— 
 
 ('ii,-.ts refused to the respondent, as there was no 
 jiiiixlictioii in the .Supreme Court to ent"rtain 
 the aiipcal, and no api)lication to have the appeal 
 -I't aside. 
 
 Jh-Doiiald V. MvCuish, 5 R. it (J., 1. 
 
 25. Declaration claim reduced by set-off 
 
 below to - I'laintifl' entitled to declaration 
 i.ost3-\Vlieii a suit is hrought for the recovery 
 cf 11 .Sinn (iliove i'iO, and the plaintitF ohtains 
 jiiilguieiit for a sum helow IT), by reason of de- 
 faidant's set-off being allowed, plaintitt' will 
 iitvertheless be entitled to declaration cosis. 
 
 McKtiizie. V. Lomj, 2 Thorn., 208. 
 
 2«. Default talien off-Plaintiff opposing 
 
 liable for costs— \\'here plaintitf, having marked 
 '' I'efanlt, unsuccessfully opposes the taking it 
 < he A ill be liable for tht costs of making the 
 fule absolute. 
 
 Morxe V. Chemutf, 2 Thorn., 234. 
 
 21. Discontinuance — Plaintiff gave notice 
 w 'liscontinuance, but no rule had been filed, 
 13 
 
 and when defendantH had attempted to ta.\ 
 theii costs the ])lainli(l' had objected. 
 
 The Cixnt granted a rule iiixi for the plaintiff 
 
 to show cause why the suit should not be dis- 
 
 continiu'd. and the defendants aUowed to ta.\ 
 
 their costs. 
 
 I Trnholm v. Tn nhohn il al., ,\iw\vn, l(W. 
 
 28. Eacli party to pay his own costs on 
 
 iippeal from I'roliate Court, as neither party 
 api)eare(l to have iirought the case, " In n: KMatt 
 \oJ' MiKnij" 1 Old., 131, to the notice of the 
 Court lielow. 
 
 Ill n Sf,j,h<ii /';< !■•.■, Will, 2 R. & C., .308. 
 
 29. Ejectment— Where defence limited to 
 
 part of land claimed -Where a defendant in 
 ejectment first pleaded denying the i)laintitt"8 
 right to the possession <,f the ii-hnli of the land 
 claimed, liut afterwards obtained leave to amend 
 his j.lea, so as to limit his defence to a }Kirt of 
 the land oidy, and that the amended plea slumld 
 lie treated as if pleaded in the tirst instance, and 
 the jdaintiff then signed judgment for the resi- 
 due, and discontinued as to that jjart covered 
 by the ])lea, 
 
 //'/'/, that the ijlaintifF was entitled to costs 
 
 on his judgment for that portion of the land 
 
 ! disclaimed by the amended i)lea, and the <lefen- 
 
 dant to jtidgment, with costs, for that jxirtion 
 
 for which he defended. 
 
 Fairbanks v. Rokx, 1 Old., 13. 
 
 30. Election petition-Setting aside with- 
 
 I out costs — Novelty of points on which de- 
 
 j cided — Election petition was .set aside without 
 costs, as petitioner had succeetled on nearly all of 
 the eighteen grounds taken against hnn in the 
 
 I rule h/.v/, and the two grounds on which he had 
 failed came fairly inider the head of new jxiints 
 
 i of practice. 
 
 Woodivorth v. Borden, 3 R. & C, 571. 
 
 31. Entry of Judgment on award -Discre- 
 tion of Judge as regards costs— .Judgment was 
 entered for defendant in the County ("ourt, with 
 the general costs in the cause, on an award made 
 in hia favor by arbitrators. Plaintiff was al- 
 lowed the costs of certain issues found in his 
 favor. The learned Judge allowed an appeal 
 on the two points, 1st, as to whether plaintiff 
 should have been allowed costs, and 2nd, whether 
 the amount allowed was excessive. 
 
 Held, dismissing the appeal, that what and 
 how much the Judge should allow was entirely 
 a matter of discretion. 
 
 Bonnett v. Chenley, 7 R. & G., 184; 
 7 C. L. T., 249. 
 
387 
 
 COSTS. 
 
 m 
 
 32. Executors -Costs on action to com- thence to Supreme Court- A oonviciion l,y u 
 pel release of mortgage where unopposed — Stipi'inliiiry MagiNtnitu wiim rciiuived liy m|.|hii| 
 1). iiiiulo a morlniigu to ilfffiiiliiiits' lostutcr to tlii' t'ouiity fouit, luid there <iiiii»lif.l. 
 to Heeiiro the piiyim-iit of tliree proinisHory //i/d, tiiat no appeal lay to the Supitme 
 iiotis. 'I'lie notes wire pui.l anil handed over Court, an none was expressly pven hy tiic.Vt 
 to 1>, iipwanls of twenty years l.efore this creating the otlence anil giving tlie appeal to tlit 
 action was l)rouj,'lit hy 1)., to compel defcn- County Court, altiiougii the Acts creatini; iind 
 danlH to execute a release of the luortijage. organizing the County Courts gave a gciiml 
 During tiie sulise(|Ucut period no payments were appeal to the Supreme Court, 
 made Ity 1)., or demanded of him, and tlie estate Costs refused to respondent, as he shoidd imve 
 of tlie testator was settled witliout any reference ^ moved to iiuasii the appeal at an earlier >tiigL', 
 to tlie mortgage as an outstanding deht duo tho j MelhiuM V. McCuith, ,'i H. d. C, 1. 
 
 estate. After liringiiig the action 1). hecame i 
 
 insolvent and made an assignment irnder the 3;^ Misleading plCU—AttornC}° tlircnlvneii 
 Insolvent Ai't, and Ids assignee intervening, y,{i]^ costrf— Wiiere in ejectment the defemliint, 
 untler an order of tiie Court, hecame plaintill' in i,y i,jj, yt\ua, purports to defend for a part ot llie 
 the suit. land dainted in tiie plaintiff's writ, hut in fiict 
 
 JJdtl, that defendants must he decreed to deserihes a diHerent lot, the plaintiff will lie 
 
 execute a release of the mortgage, though witli- 
 out costs, they not having opposed the proceed- 
 ings of ])laintitr. 
 
 Bt//, .-L1.S1;/ ;«:».', V. liroini it uL, R. E. D., 20. 
 
 33. Execution set aside-Attorney Issuing 
 
 ordered to pay costs— Wliere an attorney hene- 
 ficially interested in a jiulgment issued an exe- 
 cution, more tiiaii *2() years after entry of the 
 judgment, for an amount including '20 years' 
 interest on the judgment, and there was nothing 
 to shew that i\ny execution had been returned 
 within a year after judgment, the execution was 
 
 entitled to judgment. 
 
 Pir i51iss, J. — If such a plea be put in with 
 
 the design of misleading, I shall endeavour tn 
 
 makf the attorney pay the costs out of his ciwii 
 
 pocket. 
 
 Hmlhj V. Shfrmati, 2 Tiioin., 4lti, 
 
 M<:Muri<tit\i v. Graham, 2 Tiifiiu., 417. 
 
 38. Mortgagor seeking to redceni-Costs 
 
 — General rule, tiiat the party seeking to reileem 
 must pay the costs of suit, adhered to. In ca.ses 
 of positive misconduct on the part of tiie mort- 
 gagee, he may not only be deprived of costs, Imt 
 
 Bet aside and attorney ordered to pay the costs, i ordered to pay them ; yet, in all ordinary cases, 
 
 White V. Dimock; 2 Thom., 234. 
 
 34. Hardship of case and novelty— Rule 
 
 the rule is clear and well established, that the 
 mortgagor (or his assignee), seeking to redeem, 
 must pay costs even when the mortgagee (|iies- 
 
 discharged without costs, on account of the tions unsuccessfully, but on a reasonable doubt, 
 hardship of the case and novelty of the points his right to redeem, or extends his claim beyoiul 
 
 what the Court finally decides he is entitled to, 
 I'aije V. Chambers, 1 R. & G., p. 24i. 
 
 raised. 
 
 Qmtn V. Murray, 1 R. & C, 58. 
 
 35. Insolvent estate — Orders as to set 
 
 aside — Costa to be paid out of the estate — 
 Where the Judge of the County Court for 
 District No. 2, Lunenburg, passed two orders, 
 one postponing a meeting of creditors called to 
 consider an offer of composition, and ordering 
 the assignee to retain the estate until discharge 
 applied for ; and the other, ordering a meeting 
 to be held at Halifax, the Court, holding that 
 the Judge could not order such a meeting out 
 of his jurisdiction, set aside both orders, as both 
 had a common object, and directed the costs of 
 the appeal to be paid out of the estate. 
 
 In re SiUherland, 3 R. & C, 89. 
 
 36. LacbeB in moving to quash appeal- 
 Costs — Canada Temperance Act— Conviction 
 under— Appeal to County Court— No appeal 
 
 9. New point— Costs withheld on decision 
 of new and doubtful point. 
 
 Weeks \ Bonham, 2 R. & C, 3". 
 
 40. Jfew point — Costs withheld -Rale 
 
 made absolute, without costs, the point being 
 now first raised and decided. 
 
 CummiiKjH v. Broxon, 2 R. & C, 303, 
 
 41. Non-payment of costs of day bf 
 
 plaintiff does not entitle defendant to a con- 
 tinuance — The non-payment of the costs of the 
 day to the defendant, even when he produces 
 an affidavit that he will be unable to produce 
 his witnesses again in consequence of his ina- 
 bility to pay, is not sufficient to entitle him to 
 a continuance. 
 
 Cosey V. WUliama, 2 Thom., 184. 
 
389 
 
 COSTS. 
 
 390 
 
 42. Not allowed agalnnt stranger to 40. On rule absolute-Allegation of bad 
 
 record -TliL' lourt will not iil low costs iigiiiiist faith not suntained — Kulo nmtle iilisolutc on 
 
 11 party w Iki 'lot's not iipiit'iir on the ruconl. piiymcnl of coats of resisting it, wlicro one of 
 
 .\fi-l)oiia/(l V. MrDoiiu/il, Coclinin, 8{t. the grouii'ls was lui'l fiiitli, which the moving 
 
 party fiiilcil to cstiililish, ami where tlic plaintitF 
 
 43. XollCC of countermand of notice of resisted the motion only to relieve himself of the 
 trial- Motion for costs of tei'm, upon atliihivit charge of luul faith, which he did suecessfully, 
 timt Milipci'Miis were issued on liehiilf of defen- Sinlf/nr.t v. Sinilfi, 1 II. & (i., .Vw, 
 (iiiiit, iind costs incurred after notice of trial 
 
 xcivcl and l.efore it was t^ounlermanilcd, 30. POWCr Of Probate 88 tO t'OStS — Will 
 
 //(/(/, allidavit iiisullicient in not setting forth disputed— Testator's will was attacked by the 
 
 fait.-< til shew that tiiere was a necessity for in- trustees of the Methodist Church, (luysl)oro' (to 
 
 curriiig costs |)rior to the notice of countermand, whom the testator had left the hulk of his estate 
 
 McAlinoiit V. Jioiidrol, James, 338. hy a previous will), on the ground that undue 
 
 I and improper intiiiences had been used. The 
 
 44. Ofterni— The I'OUrt will not grant costs Judge of Probate decided that such influences 
 (if tiic term for not i)rocecdiug to trial when it had not been made out with sutlicient clearnead 
 
 Hjipcars that the defendant was not ready for 
 trial when the cause was called. 
 In cnnsiilcring an aj)plication for costs of the 
 
 to avoid the will, and directed the costs of all 
 parties to be paid out of the estate. The decree 
 as to costs having been appealed from, the 
 
 term the Court will act upon their discretion i Court held that the .Judge of Probate had no 
 
 upuu the circuinstances of the case. 
 
 power to decree the payment of costs out of the 
 
 liroini V. U'a/luci', James, 204. | estate, and could only award them to lie paid 
 Crij)f,i V. Marriof, James, 266. I by the party against whom his decision was 
 
 j made, but that this Court, on review, could 
 4a. Of term for not proceeding to trial— ! direct what costs should be allowed, and from 
 
 Cu.sts of term granted to defendant, cause not i what fund. The parties were accordingly direc- 
 beiiig at issue for want of replication, as plaintiff ted to pay their own costs up to the time of the 
 
 could have joined issue and compelled the defen- 
 dant to go to trial. 
 
 McDowjall V. McDonald, James, 269. 
 
 46. Of Term, for not proceeding to trial 
 
 —A rule staying proceedings unti' the parties 
 iiail nuitually delivered plans, will not prevent 
 defendant, who has complied with the rule, for 
 moving for costs of the term against plaintiff 
 for not proceeding to trial, the plaintiff not 
 liaving complied with the rule. 
 
 O'Connor v. Fisher, James, 269. 
 
 47. Of the day— A cause bad been set down 
 
 for trial liy a special jury, at the instance of the 
 plttintitf 's attorney ; but, the venire not having 
 been issued in time, ten only of the special jury 
 attended. The plaintiff offered to try the cause 
 with nine of the jurors who so attended, or with 
 the common jury, but the defendant refused to 
 consent, and the cause was continued. 
 
 Held, that the defendant was not, under these 
 circumstances, entitled to the costs of the day. 
 Zink V. Zinl; 1 Old., 721. 
 
 48. On notice to Sheriff to amend his 
 
 return— A mere notice to a Sheriff of an inten- 
 ded motion to amend his return, will not e ititle 
 aim to costs of aflSdavits to oppose motio? for a 
 rule Jim. 
 
 Creighfon et cU. v. Daniels, James, 304. 
 
 decree, and the appeal was sustained, with costs 
 to be paid by the trustees. 
 
 In re Hefeman Extate, 3 R. & C, 486. 
 Ill re Estate of Simpson, 3 E. & C, 357. 
 
 51. Probate Court— Appeal from — Costs 
 
 on— Discretion of Supreme Court aa to costs 
 — The Supreme Court, on appeal from a Probate 
 Court, will exercise a discretion as to costs, and 
 will in general give costs against a party uiii.e- 
 cessarily making or resisting a claim. 
 
 Estate of Alexander McDonald, James, 123. 
 
 52. Probate Court — Appeal from — Costs 
 
 on — When a decree of a Probate Court is re- 
 versed, as against an executor, he will not in 
 ordinary cases be subjected personally to costs. 
 Estate of C, McDonald, James, 342. 
 
 53. Probate-Costs on appeal and below 
 
 — Appeal from the Judge of Probate having 
 been dismissed, costs were withheld because the 
 Judge improperly condemned the party who 
 appealed in costs as to the contestation below. 
 In re Simpson, 3 R. & C, 357, and In re 
 Heffeman, 3 R. & C, 486, distinguished. 
 
 Re Estate McKilligan, 4 R. & G., 496. 
 
 54. Proof of will In solemn fbrm— Costs 
 
 on appeal dismissed — Upon proof of testator's 
 will, in solemn form, the Judge of Probate 
 
391 
 
 COSTS. 
 
 892 
 
 decreed that it had been duly executed, and he 
 made the costs payalile out of the estate. On 
 appeal, the Court held tliat the will had been 
 shown to have been duly executed, and that the 
 due execution had been jn'ovud of a codicil which 
 operated as a republication of the will. The 
 appeal was therefore dismissed, but without 
 costs. 
 
 Weatherbe, J., dl-'smliiif/, as to the fpiestion 
 of costs, considered that the oppeal sliouhl be 
 dismissed with costs. 
 
 In re EMatb of Roche, 3 R. & C, 550. 
 
 53. Recorder of City of Ilalifiix acting as 
 
 attorney— Costa— Tlie City Ordinances author- 
 ized the Council to appoint a Recorder at a 
 salary, in lieu of all fees for services, and made 
 it his duty to act for the City as counsel and 
 attorney. 
 
 Held, that notwithstanding the Recorder was 
 a salaried officer, and coidd not have taxed 
 costs again.it the City as between attorney and 
 client, the ])laintitfs were entitled, in a suit in 
 which they liad succeeded, to his costs as attor- 
 ney against tlie defendant. 
 
 City of Halifax v. liomans, 2 R. & G., 271 ; 
 
 IC. L. T.,708. 
 
 56. Reference— Costs of— A cause was re- 
 ferred to a Master to ascertain what amount 
 was due on a judgment upon which plaintiff iiad 
 issued execution, directing the Sheriff to levy 
 for $4." I. The Master reported only 862 due, 
 and exceptions being taken to the report, it 
 was, after argument, confirmed. 
 
 Held, that defendant was entitled to the costs 
 of the reference, although plaintiff did not, at 
 the time of issuing the execution, know what 
 amount was due, in consequence of payments 
 having been made to his attorney, who had left 
 the Province. 
 
 Lynch v. O'Brien, R. E. D., 396. 
 
 57. Re-taxatlon — Where the objection raised 
 on re-taxation was not brought to the notice of 
 the Judge who first taxed, the proper course is 
 to apply to him at Chambers, not to tlie Court, 
 for re-taxation. 
 
 Bamahy et al. v. Oardner et al, , 
 
 James, 107. 
 
 58. Re-taxatlon— Application must first 
 
 be made to Judge who taxed bill — Retaxation 
 will not be granted by the Court without pre- 
 vious application to the Judge who taxed the 
 
 bill. 
 
 Tupper V. Wright, James, 303. 
 
 5». Rule nisi discharged without -«nie 
 
 uixi for leave to issue execution discharged, but 
 without costs. 
 
 Scott V. Jx'oyal Halifax Yacht C/iili, 
 
 1 R. & (J., ;iJ-j, 
 
 60. Rule nisi dIscharged-Costs-C ounsel 
 
 contended that a rule must be discharged \\ itli- 
 
 out costs, that does not ask for costs. 
 
 Per Bliss, J.— That is not our rule. Our rule 
 
 is that costs should follow unless otherwise 
 
 ordered. 
 
 Coirlliii/ V. LeCain, 1 Old., 717. 
 
 61. Rule nisi to set aside default should 
 
 ask to be let in "upon payment of costs"— 
 In an appeal cause defendant was let in to dcfciul 
 after judgment against him, under section 'JO of 
 the Practice Act of 18.")."?. 
 
 When the rn/c iiixi did not ask to be let in to 
 defend " upon payment of costs," the i)lainliff 
 was held entitled to costs of opposing the appli- 
 cation. 
 
 Doy/c V. Timmiiif, 2 Thorn., •2»'i. 
 
 62. Rule to enter Judgment on award - 
 
 Costs of rule— Mot i(m for leave to enter up 
 judgment on an award, under a rule of reference 
 in the cause. 
 
 Bliss, J., thought the motion unnecessary, but 
 granted the rule. 
 
 Costs of the rule were refused on taxation. 
 
 Graham v. Graham, 2 Thoni., 7". 
 
 63. Security for costs— Defendants' appli- 
 cation for security for costs refused, tlie groumls 
 alleged in their affidavit being positively denied 
 by plaintiffs' affidavit. 
 
 The A thole Lodije of Freemasons, Halifax, 
 
 V. Williamson etal.,\ N. S. D., I'l- 
 
 64. Security for costs — Absence - Insol- 
 vency—Where one of two plaintiffs is absent 
 and the other insolvent, defendant is entitled to 
 security for costs. 
 
 McDougall v. Geldert, James, 59. 
 
 65. Security for — Absence of plalntlff- 
 
 Domicil— An order for security for costs having 
 been obtained, in consequence of plaintitt hav- 
 ing left the Province, the plaintiff, a seaman, 
 applied to have the same rescinded, on the 
 ground that he intended to make only short 
 voyages out of the port of Halifax, without any 
 intention of remaining permanently away. He 
 was a native of Newfoundland, and had b^en 
 sailing in British ships from and to the British 
 Provmces, United States, and the West Indies. 
 
393 
 
 COSTS. 
 
 394 
 
 Applicatimi refused, as this was not the clomi- 
 
 cil of plaintitl', and as he might at any time, in 
 
 making si'^^l' voyages, change his intention anil 
 
 not return. 
 
 Harri'<OH v. Hilton, 1 N. S. D., 22. 
 
 66. Security for C08ts — Action on bond 
 
 for security for costs— Should be summary 
 where amount in dispute is under $80 — 
 Demurrer will not lie to "grounds of defence" 
 —Costs refused to party who has contributed 
 to an error — A Ixmd was given as seourity for 
 costs on an appeal to the County Court from the 
 Magistrate's Court. An action was brought on 
 the lioiiil, anil pleas were ])lea(led as to a decla- 
 ration cause. Plaintiff demurred to the pleas, 
 and defendant joined in demurrer. The de- 
 nnnrer liook showing on its face that the 
 iinKJunt actually in di-spute was under .'<40, the 
 County Court .Judge treated tlie suit as a sum- 
 mary suit, and the pleas as grounds of defence, 
 and set aside the demurrer on the ground that 
 ileniurrer will not lie in smnmary suits. 
 
 Hilil, that he was right in doing so; also, 
 that defendants were properly refused costs, on 
 tla' judgnient in their favor on the demurrer, at 
 they had eoutributcd to the error liy pleading, 
 and in otiier ways. 
 
 Woodlock V. ])!rk!i if aL, 6 R. & G., 2W) ; 
 6C. L. T.,4r)2. 
 
 6». Security for costs — Defence on the 
 
 merits— The defendant, applying for sectnity 
 on the ground of plaintiff's residence out of tlie 
 jinisdiction, swore that the action was on a pro- 
 missory note against defendant as an indorser, 
 anil, on the common counts, that the defendant 
 was never indebted, as alleged, and had a good 
 defence on the merits, and believed he would be 
 able to substantiate a good defence. 
 
 .Vnd, further, that plahitiff hail previously 
 sued for tiie samo cause of action, in which 
 ilefeiiilant had obtained judgment, plaintiff not 
 having given security for costs as ordered. 
 
 //(/'/, that the appeal from the rule, refusing 
 the security, must be di.snnssed. 
 
 Snnh/f, tluit defendant had not "mack if 
 apfiHir ■' by affidavit that he had a good 
 defence. 
 
 Earrs v. Darling, 4 R. & (J., 128. 
 
 68. Security for costs — Defendant com- 
 pany incorporated in Province, but registered 
 m England — Security for costs oi'dered where 
 the insolvent plaintiff company, though incor- 
 porated in the Province, was registered in 
 Knglaml, and hail its directory and place of 
 business there, and the parties using the name 
 
 of the company in tlie suit were not in the 
 Province. 
 
 Capii Breton Co. (Limited) v, Dodd tt ah, 
 
 R. E. D., 326. 
 
 I 69. Security for — Discretion -Appeal - 
 
 An appeal was taken from an order of a County 
 Court Judge discluirging an order ni< for security 
 for costs, where it was shown that the plaintiff, 
 although resident out of the Province, was a 
 native and a British sid)ject and iiad considera- 
 ble real and personal estate within the jurisdic- 
 tion, and there was some evidence that she 
 intended to return. 
 
 I Held, that the granting or refusal of the stay 
 of nroceediiigs by tlie County Court Judge was 
 a matter of discretion and that the discretion 
 had been rightly exercised by the Judge. 
 
 Card V. H'ce/,-.s, 4 R. & G., 9;i. 
 
 70. Security for Costs -Married Women's 
 
 Property Act of 1884— Liability of wife's sepa- 
 rate estate for costs — Order for security in 
 excess of the Statute set aside— Appeal from 
 matter of discretion — Costs — Tlie Married 
 Women's Property Act of 1884, chap. 12, sec. 
 l(t, provides tiuit any judgment recovered by a 
 husband and wife in any suit arising out of or 
 in connection with the wife's property shall 
 enure to her separate benefit, and that any judg- 
 ment obtained against them (except for her tort) 
 shall biiul her separate estate alone, etc. 
 
 In a suit brought by a nuirried wonum for 
 injury to her separate property, the husliand, 
 who was insolvent and absent from the Pro\ince, 
 was joined as a party plaintiff, and an order was 
 obtained requiring the wife to give security for 
 the defendant's cost, or to appoint a next friend 
 wlio siiould justify. 
 
 Held, that althoui^h there is no appeal from 
 
 a discretionary order of a Judge, this shoi;'d be 
 
 i confined to case- liuit are purely discretionary 
 
 i where the disc: etion has been exerciseil on a 
 
 right ])rinciple, and where no ciuestion of law is 
 
 i involved, and the order in the present case having 
 
 I been granted under a, mistake as to the law 
 
 respecting the liability of the wife's separate 
 
 estate for costs, the discretion was wrongly 
 
 I exercised. 
 
 { Aho, that the order was bad as creating a 
 
 liability on the part of the husband to pay costs 
 
 exceeding that imposed by section 1(5 of the Acts, 
 
 Card v. H'enkn, 4 R. & (}., 9.'}, distinguished. 
 
 Bohaktr tt ul. v. Mor^e, 7 R. & G., 165 ; 
 
 7 C. L. T., 247. 
 
 71. Security for costs— Order liy Protho- 
 
 notary — The power granted by Chapter 94 of 
 
395 
 
 COSTS. 
 
 39C 
 
 the Revised Statutes (4th series), to Prothono- 
 tai'ius, to give orders for security for costs, for 
 better particulars, and for furtlicr time to 
 plead, is limited to the county where the writ 
 is returnable. 
 
 CummiiiijH V. lirovm, 2 R. & C, 303. 
 
 72. Security for costs— Stay of proceed- 
 ings operates only against plaintiff — A stay ' 
 of proceedings ))y rule for security for costs 
 operates against tiie plaintiff only. 
 
 MclJuwjall V. McDomdd, James, 91. 
 
 73. Security for costs— Practice wliere 
 
 plaintiff fails to give — It is not necessary to 
 move tlie Court for leave to enter judgment 
 under 4tli U. S., c. 94, s. Ill, wliere ])laintitf has 
 failed to give security for costs witiiin twelve 
 months after service of a I'lde therefoi-. 
 
 Orny v. McKeeu ; ydson v. Fitllnii, 
 
 2R, &C.,402. , 
 
 74. Setting :>si(1c pleas as false Costs on 
 
 failure to set aside — Whc.-'j there is an appli- 
 cation to set aside pleas as false, and atlidavits 
 in rojjly, alleging that the pleas are true, 
 thougli the .Judge will discharge the rule, he ■ 
 ■will in general direct the costs to be costs in the ! 
 cause. ' 
 
 Donohoe v. lionku, "2 Thorn., 233. j 
 
 75. Setting Oir costs -In January, 1879, 
 plaintiffs obtained a rule setting aside defend- 
 ant's demurrer witli costs, and in July of that 
 year the suit terminated by a decree in favor of 
 defi^idant, with costs. Previous to this decree 
 the defendant became entitled, on the connnon 
 law side of the Court, to a bill of costs against 
 McClelland, who was the real party in this suit, 
 the other plaintiff being merely a nominal party | 
 to the suit. The costs on the decree in favor of ■ 
 the defendant in the suit first mentioned were 
 paid in full by McClelland, who did not apply 
 to have the costs due him on the rule set off or 
 deducted, and McClelland having died, plnin- 
 tifl's' attorney entered a suggestion and issued 
 execution for the bill of costs on the rule to .set 
 aside tlie demurrer. 
 
 Held, that defendant was entitled to have the 
 costs in the comnum law suit set off against 
 the costs on the ride, altliougli there was a 
 nominal party in the suit brought in tins Court 
 who was not a party in the common law suit. 
 
 V"i''»"', whether cause of action survived to 
 the nominal plaintiff within the meaning of R. 
 S., cap. 94, sec. 103. 
 
 Barton <:t a/, v. Baldwin, R. E. D., 392. 
 
 76. Settlement without attorney's con- 
 sent — The Court will not set aside a release 
 obtained, pending suit by defendant from plain- 
 tiff, nor compel the defendant to pay plaintiff's 
 attorney his costs where there has been no 
 collusion. 
 
 Johnnlou v. Mathi'son, James, 92. 
 McFarkuw v. Smilh, 7 R. & (i., ")41. 
 
 77. Submission — Award — Costs — Tlie 
 
 rule of reference contained the following clause : 
 "That the .said arbitrators, etc., shall have 
 power to order judgment to be entereil in this 
 cause either for the plaintiff or the defendant 
 with or without costs, or to order judgment to 
 be entered both for jjlaintiff and defendant, with 
 or « itliout costs, as they shall find the several 
 issues either f<jr or against either party." 
 Award, " that judgment be entered for the 
 l)laintitf for tlie sum of one dollar, and that 
 tlie defendant jiay all the costs of the reference 
 and award." 
 
 Hchl, that the award was bad, inasmucli as 
 the arliitrators hail exceeded their powers in 
 giving costs of the reference anil awar<l. 
 Chitrrh Wardminf Parrshoro' \. Kiinj, 
 
 2 R. & C, ;iS3. 
 
 Oil aj>])ial to till' Siipriiiif Court of Caimdn, 
 
 Held, that the directing payment of costs of 
 the reference and award was bad, but might be 
 abandoned. 
 
 St. f.'ronys Pari-h V. Klmj, 2 S. C. R., 143. 
 
 78. Submission -Provisions as to costs- 
 Discretion of arbitrators not exercised— The 
 parties entered into a submission by which they 
 referred all the matters in difference, etc., and 
 proviiled that the costs of the cause, and of the 
 reference, or in any matter relative thereto, 
 slioulil be in the discretion of the arbitrators: 
 and, further, that judgment shouhl be entered 
 upon such award for the amount thereof, and of 
 the costs of suit and reference in the same iiiiin- 
 ncr as if the verdict of the jury had passed. 
 The arbitrators made an award in favor of de- 
 fendant, but saiil nothing us to costs. 
 
 Jfi/il, that the award must l)e set aside. 
 
 /'()• Rigby, J., tliat the cause should l)e re- 
 submitted to the arbitrators. 
 
 Pir McDonald, C. .).,ifi-<s, iitiii,/, that, iilthough 
 the provisions of the submission as to costs 
 were in apparent ctniflict, the intention was, 
 that in the event of the arbitrators not exercis- 
 ing their di.scrction as to the costs, they should 
 follow the award, as provided in the latter 
 
 clause of the submission. 
 
 Tory V. The Muiiinjialiti/ o/Giti/xhoro', 
 
 5R. &G.,3i. 
 
307 
 
 COSTS. 
 
 398 
 
 79. SiifccssfUI party deprived of— Wiiere i 83. Trespass— Where brought to try right 
 
 the (.'oiirt tt'fused to disturt) a venlict sought to ; — Tlie grant iiig of ii curtiticate tliat an action of 
 lie set aside on tlic ground tliat a deposition taken ! trespass was Itrought to try a right so as to en- 
 ili linif f*"'' had been removed from the liles of I title the plaintitF to costs, is a matter for the 
 
 discretion of tlie presiding Judge, with which 
 the Court will not interfere. 
 
 McGUlifary v. Mcl.ianr, James, 15Ji. 
 
 84. Venue changed, but without costs— 
 
 For.'<yth v. For-'i/th, 1 X. S. 1)., 494. 
 
 See, a/so, .tujira, 19. 
 
 85. Where verdict reduced — wiicro a 
 
 tlie (Vunt liy tlie plaintitt"s attorney, the rule 
 nisi to set aside the verdict was disciiarged, with- 
 (iiit costs, a- the plaintitl's attorney did wrong 
 ill taking the papers out of the proper custody. 
 Mt-DoiKtld ft nl. V. Merchants' Marine Ills. Co., 
 
 211. &C., l.S.3. 
 
 80. SHCcossfiil party refused costs— Where 
 
 pliiiiilitl iietitioned for partition of certain land 
 
 (lesirilKMl in deeds of adjoining laud made ''y verdict is found against the ciiargc of the Judge, 
 
 liiin iiiid another grantor to defendant, as _.^,„i ii,g uncontradicted evidence of tlie only 
 
 " |,iii|M.sed street," claiming the land ahso- „-it,u,.ss examined at the trial, for a larger 
 
 liilrly, .Mid the t'ourt held that he was estopjied ainonnt than tlie evidence warrants, the Court 
 
 fn.iiKleiiyiiig lliat a right of way existed over ■ ^^-jn either order a new trial, or, if the plaint ills 
 
 jl, tlieCcMut refused to allow him the (-""sts of i (.„„j,^,„t_ reduce the damages to tiie sum war- 
 
 Ihe aiginiient of a rule nisi to set aside the ver- ; ranted hy the evidence. The Court have power 
 
 ,liet f.ir defendant, although the rule was made g„ ^„ reduce the damag.^s witli the consent of 
 
 absolute. the idaintifTs alone, and against the will of tiie 
 
 r.,hy.r.t,rs,taL,2Ji.&V.,i>.lU.,^^^;^^^^ 
 
 The (luestion of costs in such cases will dejieiid 
 
 81. Suit in Equity -ExceptionS-Phuntiflf:^,^ ^,,^ particular circumstances. In this ca.se 
 hioiijrlit a suit to ohtam fr.,m .lefendant a re- j,,,^i„jijj., „.^,,^. ^^^.^^ judgment for re.luced 
 eoiiveyiuue on plaintitl' paying him the amount ,^„,„„„^^ .^.j^,, j,,^;, ^„,ts, but the defendants 
 that slunil.l be found due upon an accounting, ^.^,^^^ ^^^^^ ^^^ ^,^^ argument, to be deluded 
 fur which he prayed. Defendant set up "■ ti,g,.yfroni 
 
 ikfeiice uliicii was not sustained, and insisted | j^.^^^^, ^^ ^^ ^._ jj^^,^ ^^ ^^, ^ j y,,,^ -.,-_ 
 
 on ]iiiyiiieiit of S4()0, of which the master I 
 
 allimed .S'.'lt, Exceptions were taken to the ! „ .. , . , ....... .^ 
 
 report, some of which were allowed and others 8«- >«"•«««» ^^t aside W thOUt - Point 
 
 ,, „ , ' taken by Court^\ erdict for phiintiti set aside 
 
 (lisalldwed. ■' . , , , ,^ 
 
 „,,.,.,, I • .ir .-.11. .1 without costs, as the view taken by the (. ourt 
 
 Hilil. that the plaintilT was entitled to tlie ' , r i ■ i 
 
 . .... •.. 1 , »i . ^1 i • ■ I was not presentecl by defendant s counsel at tlie 
 
 Cdsts (it tiie suit, l)ut that the costs arising out * •' . 
 
 t ., . 1 1 1 i 1 11 1 i. -..1 trial, itiid no cases in support of it were cited at 
 
 (if tlie excejitions should not he allowed to either ' ^ ' 
 
 iiaitv. *^''° '^''b'"'"'-'"'-- 
 
 Knoirlan v. Diiiin, R. E. D., 410. , Morrison v. nshirirh; 1 R. &.(i., .".0. 
 
 82. Taxation - Reviewing — Fresh affida- 
 vits— I'liiiutitrs, as executors, brought action 
 fur rent, claiming .S8S, there being less than .SiSO 
 line, even supposing tiie chiim to lie valid. 
 
 Defendant pleaded, among other jileas, an 
 ei|iiit;iliie jilea, setting out facts on which judg- 
 ment was afterwards given by the Eijuity Court, 
 anil tlie jiidgmeut was then jileaded /mis darrein 
 coiiliiniaiifi . 
 
 Plaintirt' confi.'ssed the plea, and moved for 
 costs down to the plea /mis darnin, itc, to 
 wiiili defendant a.ssented, and declaration costs 
 were taxed. 
 
 Tlie Court allowed the taxation to be reviewed, 
 iind (inlei-ed suininary costs to be taxed, although 
 tlie facts showing that less than SSO was due, 
 could he gathered only from atHdavits introduced 
 after the taxation. 
 
 Marshall <'t al v. Steele, 1 R. & C, *2S4. 
 
 81. Verdict set aside — Costs to abide 
 
 ! event — Costn of argument of rule to set aside 
 verdict to abide final event, owing to .si)ecial 
 , circumstances. 
 
 OX' il V. \V,lls, 'J R. & ('., 210. 
 
 I 
 
 88. Verdict set aside on ground of rela- 
 tionship of two jurors — Costs — Where a verdict 
 
 j was set aside on the ground that two of the 
 jurors were related to defendant, a fact which 
 
 , was not discovered till after verdict, costs were 
 
 ! made costs in the cause, and to aliide the event. 
 
 i Li/nds el al. v. Hour, 1 R. ."t C, ."m. 
 
 I 89. Verdict set aside-rosts not mentioned 
 
 in rule — Plaintift' then discontinues— Costs of 
 trial not taxable against plaintill— Where a 
 
 verdict for jilaintifl' was set aside and notiiing 
 i was said in the rule respecting the costs, and 
 
399 
 
 COUNTY COURT. 
 
 400 
 
 plaintiff (liseoiitinncil, the uosts of the trial me I 94. WltnC8S FCCS-Whilt entitles piirtj (0 
 
 not taxiihle against plaintiff. (I'nictice Act, 
 Acts of 18.M, sec. •_'4H.) 
 
 Moody V. AJtna Innuraiice Com/tctiiy, 
 
 2Tiioni., •-':«>. 
 
 suit to — To entitle a party in a cause to liis tuts 
 as a witness, lie nnist make an atiidavit tliiit lie 
 came to the Court expressly to uive eviiluiico in 
 the cause, aiul for no other purpose. 
 
 X<ri//i V. (I'ftmti, '2 'i'Un\n.. i. 
 
 00. Verdict set aside for misdirection- 
 
 Costs -If the party in whose favor the verdict is 
 given fails to sui)|)ort it, he must pay the costs ; 
 anil there is no distinction in eases where it is 
 set iiside in conseipience of the misdirection of 
 the Judge. 
 
 Fnt"!)' V. h'irl,; '_' Thorn., '.MM). ; 
 
 05. Witness fees - Ulien taxabic w itutss 
 
 fees cannot he taxed when the witnesses (Id not 
 reijuire tlicm to he ])aid. 
 
 /V/(>y V. Ji'ussill, .Janus, ,")S. 
 
 91. Will - Testing validity of Costs - 
 
 Where an at'tion is liniuglit to test the validity 
 of a will in which all the heiis of an estate are 
 interested, the costs of such action should not 
 he horne solely l»y the losing parly in the suit, 
 but the costs of both jiarties should lie a charge 
 on the estate, in analogy to the praiticc on 
 feigned issues. 
 
 ZiiiL- it al. V. Zliih; •! Ohl., 17.'). 
 
 9'2. Will, proof in solemn form witliont 
 
 citing parties interested— .\ will having 1 oen 
 j)roduced for jtrohate in common form, probate 
 was refused on account of defects on the face f)f 
 it, au<l tliereujion the counsel present consented 
 to proceed with an investigation, to lest the 
 will in solemn form, without the usiud citations 
 and other preliminaries, acconling to the prac- 
 tice ot the Court. 
 
 The Jiulge of Probate decreed the will to 1)6 
 invalid. A pecuniary legatee, inider the will, 
 who had not been a party to the consent, «as 
 one of the appellants frrnn this decree. 
 
 //</'/, that the a])peal nnisl be allowed, but 
 without costs, as there had been a consent to 
 the proceedings below by all the counsel that 
 had ap])eared at the bar in this Court, who 
 were the same proctors ami advocates tliat had 
 appeared below. 
 
 //( /-t Kstati of Connoltij. '2 R. A; C., l'.\ ; 
 
 1 c. L. r., .-).-).-). 
 
 93. Witness fees — Where two suits are 
 
 brought for the same cause of action l>y the 
 same plaintiffs, against diffei'ent defendants, but 
 the pleas are the same, and the witnesses the 
 same in both suits, and notice of trial is given 
 in both for the same time, the witnesses are 
 entitled to fees only in one of the suits, 
 
 Tht Xova Scotia Land and Hold Crnsliini/Co, 
 ( Limitid) v. Archihald HdIIowi ; 
 
 Idiin V. Xeai liulkiiiij, 1 Old., 723. 
 
 COIMIKS, AMEIHEMEXT OF 
 
 .V'< .IMERl'EMEXT OF (OINTIFS. 
 
 tOlXTY tOlKT. 
 
 1. Clerii of County Court Writ sljjned bj 
 
 deputy Burden of proof A writ ot >iuiiiii"ii~ 
 was signed in the n:ime of the Clei k nl the 
 County Court by a ileputy appointeil liy the 
 clcik, who, it was contended, could mily >ip- 
 point a deputy to act fur him when he hms 
 "absent from home, siik, oi' other\vi>c uiuiMf 
 to attend to his duties."' 
 
 Ill Id, tliiit the onus was on the ])arty seeking.' 
 to avoid the writ to show that when it Wiis 
 signed by the de|)Utv the clerk w:is noilhcr 
 " sick, absent from home, nor otherwise uiiiiliie 
 to attend to his duties." 
 
 Kawf-h V. A, ■'Inn; .") II. >V (;., iMI. 
 
 2. Constitution of Courts - Contested 
 
 Municipal elections -- County Court Judge 
 authorized to hear ]ictition - One Judge, if 
 disqualified, may call in another - Power of 
 Local Legislature to define jurisdiction of 
 County Court Judges — Under t!ie Coiuity hi- 
 corpoi'ation Act of ISSI, c. I, s. 18, a County 
 Court .Judge who is dis(|ualitied from tryinga 
 j)etition in a contested municipal electiuii. niiy 
 call in another County Court Judge to do so. 
 
 The jurisdiction ot County Court Judges ilofs 
 not depend upon their connnissions, which au' 
 only descriptive of the tribunal over which smli 
 Judges are apj)ointed to jireside, but ujion eiKUt- 
 nients of the Provincial Legislature, which uwv 
 define, enlaige and extend the districts witliiu 
 which the .Judges sit, as it sees fit. 
 
 Cron-c V. McCurdy, « R. & (i., 'M: 
 GC. L. T.,4:.:i. 
 
 3. County Courts-Irregularity in writ- 
 Want of signature of proper officer— Want of 
 
401 COUNTY COURT. 402 
 
 seal— Nullity— Waiver— Deputy Clerk— Tlio l\v Rituhie iiml MeOonald, .1.1.— Tluvt after 
 
 uiit iif siiiiiiiKiiiM will iii>t lie Mt't iisiile for iiiiy tlio tiling of ii plea olijectiiig to the couiiter- 
 
 ,|iUrt thfii'iii, afti-T appi'iiraiuc and plea, flaiiii as l)eyoii(l the jiuisdiction of the Coiiit, 
 
 wiictiicr the defect makes the writ a nullity, t lie County Court .Judge liad no jurisdiction to 
 
 111- finly iricgidar. amend it hy reducing it to an amount within 
 
 A di'fict which makes a proceeding a nullity the jurisdiction of the Court, tlie County Court 
 
 will lie coMsidcrcil as waived wiicn the cause Act, .")th 1',. S., c. 1(1."), s. "J."), oidy permitting such 
 
 lias j.'onc III iinotiicr stage, in w iiich the validity amendment to he maile m tiie al>sence of a plea 
 
 dl till' |iriMi'eiling has ceased to lie important. to the jurisdiction. 
 
 The hcinity of the Clerk of the County Couit Hafix v. Cnti/thoriK , 7 H. & '•., 'J.'iO ; 
 
 liilil aiithori/cci to sign writs, atthougii tiie 7 C. L. T., :U~. 
 Clerk lie not ill, alisent fr'oni home, or otlicr- 
 
 u !>,■ uiiai.le to attend to his duties. «. Jurisdiction of - Debt indivisible - 
 
 liniik of Xom Scotia v. Mrh', rrcn-, Ueti'udants entered into a liond to the plaintitf 
 
 .') it. i\; ('•., ■J7.">. and his co-executor, to secure a delit of 8'Sl'*, 
 
 payalile hy instalments, the lii'st of which, 
 
 4. .FlirisdicJion I'laintilf Joined a elaim amounting to .sl<;i.4(», was overdue; l.ut the 
 
 furS-J(i, fiiruurk, with a claim for ilamages for condition of tlie bond referred to a mortgage 
 
 tic>pa>s DcfeiidaMt i)lcaded a contract as to given contemporaneously with it, which ron- 
 
 thf Wdik. hy wliich SU) wiis agreed U|)on as tlie taiiied a covenant that on default made in the 
 
 in ic. anil that this was helow the jurisdiction. I)ayment of any instalment, the whole sum 
 
 The .liidge found for the dcfeii<hint on these unjiai.l should imiiie<liately heconie due and 
 
 i>siR's and for plaiiititl' on the trespass. [layaMe. Action was iirought in tlie County 
 
 //./»/. sustaining the judgment lielow, that Court for the amount of the instalment. 
 
 the plaiiitiil's contention that tlie whole state- //''''. tliiit the judgment of that C<.urt, which 
 
 I, iciit of claim was the cause of action, and that, "as for iilaiiitill', couhl not he sustained for 
 
 tic itiiiu it as a whole, jialgment should have want of jurisdiction, the del.t l.eing iiidivislMe 
 
 hirii in favor of iihiintill'. for .*ilO for the work for.'^fsK), and recoveralde only in the .Sujneme 
 
 and tor diiniages, was ahsurd. Court. 
 
 /r,7/M V. S,r,,t, •_'(» N. ,S. R., (S R. & (;.), 44!) : """'^ E.onilor, v. Dn.nis,,,, ,1 nl., 
 
 !»C. L T.,-2:W. •*'^' 't<^'-.303. 
 
 4. Minutes of evidence - .i motion was 
 
 .1. Counter-claim for amount over tlie ,„ade t.. set aside a oniomri taken out in a 
 
 juri.sdietion of the County Court cannot be summary cause trie.l in the County Court, the 
 
 amended after plea objecting to it on that jr,.„„ml for the a rtioriirl lieiiig that the .ludge 
 
 ground Sr,cli -oiinter-claim can only be used i„i,i lefused to take down certain evidence. 'Ihe 
 
 a.s defence In an action brought hy plaintilf in C,,„rt refused to amend the minutes of the County 
 
 the County Court on an arbitrator's award to Cmrt .Judge, but as to the orllonrri, luld. that 
 
 ivcdver the amount of the award the detmuhmt jt „as safer and better that the rule to set it 
 
 cuiiiiter-clainied, besides other items, for the sum ,^^^^\^, si,„iild include a motion to set aside the 
 
 "f 84(KI. being the value of a machine which he (,r<ler for the nr/wmri as Well as the a rfiorat-i 
 
 nlleged to have been wrongfully converted by the itself. \\ ith the consent of the parties the rule 
 
 plaiiititf. I'laiiititr replied to the counter-claim, t„ g^t ^side the ctrtiomri was discharged witli- 
 
 iiiiinng other things, that it wa.s beyond the f^^^^ (.Qsts. 
 
 jurisdiction of the Court, which in eases of l)oi/ti v. (/((//««/, 2 R. & (i., 8fi ; 
 
 t"it. was limited to S'ltiO. The learned .Judge 1 C. L. T., 5(17. 
 liiriiiittcd the ilefeiidant to amend his counter- 
 
 diiim .so as to bring it within the jurisdiction of 8. Plea to thc Jurisdiction— Where plaln- 
 
 tlie Court, and gave judgment in lii-s favor, ; titf was originally indebted to defendant in 
 
 inchidiiig the above items, for .t-A'. '-'.'< , less the .<:W.").!)0, and defendant sidd plaintitf a vessel for 
 
 aniDinit found to be due the plaintiff. Plaintitf 8<iOO, thus making the balance in plaiiitifl''8 favor 
 
 iippealed. S224. 10, which was afterwards increased to 
 
 //'/'/, per James, J., that the County Court g!"2fl0.78, and then reduced by set-otf of casli and 
 
 •bulge was authorized to give the defendant the goods, amounting to .'?17y.<t.'>, to SI 11.73, for 
 
 hi'iietit of ills counter-claim to the extent of the which amount plaintiff sued, and defendant 
 
 plaiiititf's claim, but that having given relief to pleaded to the jurisdiction. 
 
 ilefeiidaut beyond the amount of his jurisdiction fft/il, that there was no evidence to support 
 
 tae appeal must be allowed , the plea, the burden of which was on the defen- 
 
403 COURT. 404 
 
 tlant, that plaintiff's claim was in excess of tliu amount claimed by the plaintiff's declaration 
 jurisdiction of the Cminty Court. being over $'Mi, tiie Court iiad jurisdiction. 
 
 McKay v. Allan, (5 R. & (i., 476; Wallace, v. O'Toole, lOth Fihrunry, JSSo, 
 
 6 C. L. T., 538. I Cas. Digest, 4l>.'. 
 
 9. Prohibited from proceeding with *"'' "' " APP^^^^S, V. 
 
 rirtiomri to remove conviction under Canada ! 
 Temperance Act. | 
 
 (Jiiern v. O'XeiU, 20 X. S. R., 
 
 (8 R. &("!.), r)30. 
 
 I 
 
 COUNCIL, TOWX- 
 See CONTR.iCT, 66. -CORPORATION. 
 
 SVe CANADA TEMPERANCE ACT, 10. 
 
 10. Prohibition, writ of, to County Court— ; COIRT. 
 
 Jurisdiction of Court- An action of iiovcr was 
 
 broujiht ii^Minst defendants in the County Court, 1. Attendance at - Aftcr thc llrst diiy of 
 
 at Halifax, X. .S., u> wliich tiiey ]>leadcd a term gentlemen of tiie bar arc not eNi)ciU(l lo 
 numlier of picas, including one to tiie jurisilic- l,c in attendance in Court unless they iiavc \>m- 
 tion of the Court. Tiiis j)lea was liased on the ticular business. 
 
 allegation that the goods for which the action Sl.-iiniir v. /,a)/e, James, '.MT. 
 
 was lirought were of tlie value of .*(i(HI. tiie 
 
 jurisdiction of the Court in actions of tort being 2. DIsqualifled through interest— PlailUUT, 
 limited to .S'iftO. '{'lie plaintiff demurred to the iv barrister of the Supreme Court, having coin- 
 plea of want of jurisdiction, an<l, after argu- niittcd a contenipl of Court, was, by the lut 
 ment, the dcniiiricr was overruled. Xo ap])tal of tlie whole Court, suspended from practia'. 
 was taken from tlie judgment overruling the Plaintiff thereupon brought an action ag;iin>t 
 demurrer, but the plaintiff gave nf)tice of trial, | the Chief Justice, alleging in his declariition 
 and entered the cause for trial at Chambers that the acts therein complained of were act.< 
 before the County Court .Judge, who announced alone of the defemlant, in which the rest of the 
 his intention of trying the same on the renuiin- Court were not implicated, 
 ing ideas. The defendants obtained a rule «/.v(' Defentlant pleaded that plaintiff's susiiension 
 for a writ of prohibition to restrain the Judge "'-'is the act of the whole Court, but ])l:iiiititf 
 from Lying the cause, on the ground that the contended at the argument on the rule to slum 
 judgment on tiie demurrer dispo.sed of the whole I cause why certain of defendant's pleas sliouM 
 case. I not be amendeil, that his complaint was limitt'il 
 
 H< /il, that the pica was not a good plea, as to a charge against the defendant for hiiving 
 the damages claimed were oiilj' $'2()(), and the maliciously, and without probable cau.«c, iii4i- 
 ineasure of damages in trover was not necessa- tuted the proceedings whicli led to his suspeu- 
 rily tlie value of the goods, and that, the Court s'on. Defendant having denied that he inili- 
 liaving jurisdiction, the writ of prohibition could i vidually originated the jjroceedings, 
 not )>e granted. j IIclil, tiiat as this denial brought the rest nf 
 
 O'Too/i ef al. V. Ila/Zacp c< ra/., 4 R. & G., 357. i the Court directly into the contention, lume 
 
 of the Judges then sitting on the Bench coul'l 
 
 On appea/ to the Supreme Court of Canada, judicially act in or take cognizance of thc cause. 
 
 Hi III, .Strong, J., fli-oiintinii, that the effect of even with the consent of tlie parties tliercto. 
 the judgment on the demurrer was to (plash the '■ Wallace v. Younij, 1 N. S. D., 173. 
 
 writ, and the rule nm for a writ of prohibition i 
 
 should be made ab.soiute. ; 3. Equally dlvldcd- 
 
 Pir Strong, J., dUtintlu'i, that the judg- ' I'rr Jolmstone, E. J. — The Court bciiit; 
 ment of the County Court Judge on the demur- equally divide<l. the judgment appealed against 
 rer did not dispose of the case ; but he had a must stand. 
 
 riglit to reconsider the same on the trial of the /« re Estate 0/ Sophia liralne, 1 X. S. D., 'Ml 
 issues raised by the other pleas ; that the plea j Embree v. Xoilex, 3 11. k (J., Si. 
 
 to tlie jurisdiction, by attorney, was null and ! 
 
 void, and if judgment had been entered of 4. Equal division Of-On an equal division 
 record on the demurrer, such judgment would of the Court, the modern practice seems to l)e, 
 have been likewise null and void, and that the | that the party who has obtained a verd; ;t, as a 
 
405 CRIMINAL LAW. 406 
 
 general rule, retiiins it ; that the Court Ims a tlie mine for a share of the profits no interest in 
 
 iliscrcli'iiiiu y pnwer to onlor a new trial or the mine was transferred to plaintiff within the 
 
 re aife'iinieiit ; that the Court may refuse the i meaning of section 4 of the Statute of Fraud, 
 
 costs of argument where neither party prevails, : (i.) That the Sheriff should have sold only 
 
 iiml tiiiit (in a])iM'ul from inferior trihunals, the the execution del)toi''s share, leaving the pur- 
 
 (Itcisidii hclow is atiirmed. chaser to settle with the plaintiff. 
 
 (,Vf(// V. .s'A./ Co. q/'CViHw/re, .3 R. & C, 5(J0. (.S.) That though the verdict for plaintiff 
 
 : might he set aside and a new trial oi'dered, it not 
 
 5. Eqillfable JurlsdICllon of -Joint and ai)pcaring that the <lcfendant hy the sale put it 
 
 several bond -I'laintiil's' cashier gave a lioiid, out of the plaintiff's power to tiike the property 
 
 whcniii he was joined hy five sureties, for his or j)ursue his reineily against the purchaser, yet 
 
 li.jility a:id good condiut, the penalty of the the plaintiff having an undoid)ted right to a share 
 
 lidiiil liciiig S4(I,(MH), and the conditioh reciting of,if not the wholcof thegold, underthee(|uitalile 
 
 llial f.ii li siiicty was lionml in the sum of !*S,<K)(». powers of the Court it ought to lie referred to a 
 
 The lashicr liecanie a defaidtei' in a very large Master to ascertain the agreement between plain- 
 
 aiMMUiil, ami the plaintiffs entered into negotia- tilf and (!., take an accoinit of the expenses of 
 
 Hulls witli K., one of the sureties, which resulted working the mine, etc., and report the balance, 
 
 ill an agreement between them whereby K. if any, which was due by the iilaiutiti' to (i. at 
 
 uiiiUrtiiiik to pay one-fifth of the balance due the time of the levy. The (jucstion of costs to 
 
 ii|ioii tiic liond after the deduction of certain be dt'cideil after the making of the Master's 
 
 eieilits, and gave his note for the amount. re])ort. 
 
 .Siilis.i|iieiitly l)laintifl's sued upon the bond, MrJk„ia/d \. (.'(/i/, li, Hy. f^. I)., r,o\. 
 eieditiiig in their particulars tiie sum K. had 
 
 ]iiiiniise(l to pay but had not jjaid up to the 
 
 (l.ile of the irial. K. ])lcaded to the writ a 
 
 nuiiilier of pleas, one being that the bond was C0VEN.4NT. 
 
 a several and not a joint ami several boml, ami 
 
 seven pleas (ui ecpiitabie grounds. Covcnant fof qiilet cnJoymcnt of Water 
 
 Tlie jin y found fur plaintitl's in a less amount, privilege- ]>efcndant denii.-ed to the j)laintill's, 
 linwever, than they claimed, liut they aciiuiesceil for a certain period, a mill and mill machinery, 
 ill the Verdict and made no attempt to disturb ^vitii a water privilege, flic imiiv /mircr to he of 
 it. K. alone of the defendants resisted the ver- '/"' •>"/"' irtiiit n-< that iiiJdi/uI hi/ lln: thm h-isie 
 <liit, eiiiitending that the bond was a several of thi' «(///, the lease containing a covenant for 
 (ililigatjoii, :uid that the receipt given by plain- ipiict enjoyment. The evidence showed that a 
 litis to liini at the time of the settlement between water privilege to the exttuit ])rovided forbad 
 tliem lieiiig in proof, should be considered as "ot been actually enjoyed by the jilaintitfs, and 
 liayineiit to that extent on his own account. that injury and loss had resulted from the 
 
 //'/'/, that K., having invoked its eijuitable deficiency, which was due to acts either of the 
 jiirisilietinn, the Court had fidl power to deal | defendant himself or of the S. M. Co., his 
 with the ease: that the boml was a joint and ' tenants. 
 
 several (ihljguUon ; that if K. had actually paid Hchl, to be the legal cliect of the covenant 
 the aiiKiunt mentioned in the receijjt he might ' f"i' qniet enjoyment in relation to the facts 
 liave gioiind for com])laint, but that not having l"'oved, that the jilaintiffs were entitled to re- 
 (liiiie so the verdict foi' plaintiff must stand. cover, the defendant having failed to show that 
 
 TIf liniik of Xnra Scotin v. FiiriiKdi it al., the <lcliciency of water jjower was occasioned 
 
 3 X. S. 1)., 141. ''y causes that lendered it inii)ossi))le for him to 
 i perform the covenant in (|iiestion. 
 
 6. Equitable Jurisdiction of - Statute of ^'"'•^"' " "'' ^ " ''"'''"'"''' ' ^'- ^ ^'' -''• 
 
 '"t^wil:!':;;'!':'; 1 t- "'t "''T"" :'"■ ^ ^-> "'-- deed-mortgage. 
 
 "•, uie owner ot a gold claim, to work a portnm - 
 
 "f the elaini, plaiiititf receiving two-thirds of the , 
 
 piiilits after paying all exi)enses. Defendant, 
 
 ii^'ting as Sheriff of the County of Hants, levied CRIMIX.tL L.IW. 
 
 upon and sold certain gold taken out of the mine 
 
 j>.v plaintiff on an execution against (i. Plaintiff 1. Authority Of CouH in bauco to enquire 
 
 "iiviiighrougiit trover for thegold so taken, and into validity of objections taken atj trial on 
 
 •1 renhet having passed in his favor, behalf of prisoner and over-ruled -Prisoners 
 
 ''W, (1.) That under the agreement to work jointly indicted — Ordering acquittal of one 
 
407 CRIMINAL LAW. 408 
 
 — Separation of Jury — AVIicn in a ciisiu of did luit knou- of his icsiik-iu'c, and wiictlier lie 
 
 felony olijections were taiiiii l>y tiie prisoner's was alive or dead. 
 
 eonnsel, in arrest of jtid^'uifiit, Imt over-ruled IlvId, an abseneo f)f tiiis kind was slKiwn in 
 
 liy tlie Jndj,'e tryinj,' the ciuise, tiie Conrt in this ease. At any rati^ sueh evi(h'inu wm 
 
 //««<■() have autlioiity to iii(|uire into the validity adduced as should have heen left to the jinv, 
 
 of those oltjeetions. and from which they certaiidy iniglit have fouii.l 
 
 The j)resencc of the jiiisoner at the ar^'uniciit siich an alisencc. 
 
 is not necessiry. The diid^re is not hound to /A///, that Imrden of proving thiil |irisciinr 
 
 order accpiittMl of one of the jirisoners joined knew of Peliav's lieing alive during the sivtn 
 
 in an indictment at the close of the case for the years was on the j)roseeution. 
 
 (Vown, where evidence is to he adduced on //(7(/, hy all the Judges, that convictini] iinist 
 
 hehalf of the other ]irisonei's. lie niiashed. 
 
 The seiiaration of tin; jurors, ami e\en their V""" v. Aiiiiii Dilxiy, ,S X, S. 1),, ,•,411. 
 conversation M'itli strangers relative to tlie trial 
 during its (lendcncy, are not in themselves sulli- 
 
 eient to destioy the verdict. 4. Rigiiniy Foreign Marriage Proof of 
 
 iJiiKii V. A'' ///("///, 'J Thorn., illt.S. Adinisijion of Defendant — Corrohoratiii<; 
 
 circumstances -Proof of License Presump- 
 tion — In a idoscriition for liigauiy, u hcic tiniv 
 
 2. Ball, admitting to Prisoners ohargeil i-* ■' f"i'',i-'" marriage, the foreign law nmst !.,• 
 
 with murder cannot lie admitted to hail, exci'pt .-tii<tly proved. This, howevei, is not neiussirv 
 
 mider extreme circumstances; otherwise, with wlicre ihc m.irriagc has lieen admitted l.y the 
 
 accessories aitei' the fact. defendant and there are corroliorating ciiciini- 
 
 Vh((« v. Miiri'lii/ il "/., James, LIS. stances stri'ngilicning the admi.ssion. 
 
 The testimony of the minister who iiiiiiiieil 
 parties, *hat he h.'ol a mariiage liciise, wiiicli 
 
 3. Bljjamj- ~ Absence of first husband - „as l,rought to him hy one of ii;c pimics: tliat 
 
 Knowledge of prisoner of first hu.^band he didy returned th.> same : that all the Inrins 
 
 being alive ^Burden of proof of knowledge ,,,■ 1;,^^ w.re observed as rc(]uired by tiie license, 
 
 on prosecution -(,)uestion subu.itted foroiiinion and that the mairiage was performed aeconliii- 
 
 of the Court; Whether the presiding .ludge to the rites and ceremonies of his cluurli is 
 
 rightly instruc 'il the jury that the evidence sullicient i)roof of the license having U™ 
 
 a.ldn.'ed on the trial of tiie i.risoner, who was issued and returned, and of the marriageliaving 
 
 indicted for bigamy in marrying one (ieorge i.^on duly solenmize.l. 
 
 I'ar. in the lifetime of her husiiand, William! Wilkins, .1., iloiililimi. 
 
 J)eliiiy, did not raise any jiresuniption of the j„ ,i,js ,.,,se the first alleged murriage was 
 
 death of Debay, and that the prisoner was not contracted in lioston. Mass., and no ppinf wiwt- 
 
 aware wiieii she niarricd farr tiiat Dcbay was ^ver was given of the marriage hiw of .\lii.<s,v 
 
 '■^''■'y- thiisetts. There was evi<lence. however, liy :v 
 
 On the part of the pro.secutiou Debay was witness present thereat, of a marriage cciviiioiiy 
 
 proved to have been seen in the United States and of .subsefpient eoliabitati<m as man and wife, 
 
 after the second marriage, alioiit three weeks Another witness test ilied as follows: "I spoke 
 
 before the trial ; and on the part of the defence to the defendant at Parrsboro'. A wdiiiaii 
 
 that eight yeais before trial the prisoner and fhijniing to ho his wife was looking after iiini. 
 
 other husband .separate.l, he having turned her she is now present. I asked him what iiuide 
 
 out of doors, and never lived with her since. him leave his wife in the States and marry 
 
 The Dominion statute, under which jn'i.soner another woman at I'arrsboro'. He said lie iliil 
 
 was indicted, provides that nothing therein ,„)t think his wife would foll,>w him from the 
 
 contained shall extend to any person marrying States. He thought she never would trouble 
 
 a second time, whose husband or wife has been liim ; hut as long as she had followed hini, he 
 
 continually absent from such person for the would take her and support her as long as they 
 
 space of seven years, then last past, and was lived. We were old aequaintanees, ami I asked 
 
 not knowr. by such person to lie living within him about liis wife who was claiming him." 
 
 that time. JIM, that there was no necessity for proof 
 
 //(-/(/, that the absence contemplated liy the of the marriage law of Massachusetts, us the 
 
 statute is not necessarily an absence from the marriage was sufficiently proved by the ailmis- 
 
 country. It is sufficient for the prisoner to sion of the defendant and the corroborating 
 
 prove the absence of Debay from her, such an circumstances. 
 
 absence as would lead to the inference that she } Queen v. Heury P. Allan, 2 Old., 373. 
 
41)9 
 
 CRIMINAL LAW. 
 
 410 
 
 ,(, Case reserved - Indictment for lar- 
 
 lenv tonviction for misdemeanor— Tliu piis- 
 iiiir liiiviiiji pickuil up certain goods that iiud 
 i|„;iti'il a«ay from the wreck of a steamer, 
 ,i|i]irii]ii'iatcil tiielii to ills own use. He was in- 
 lined fill' larceny, tin; proi)erty in tlie j,'oo(ls 
 Idiiglaiil in tlie captain of the steamer, Imt at 
 
 l)roof of forgery of tlie indorsement, and that 
 the conviction on this count must )>e set aside, 
 A cjuestion having lieen raised at the trial, liy 
 demuirer, as to the jiower of the t'ourt to try 
 or convict the defendant for another offence 
 than tiiat for which he was extraditiMl, and 
 having !)ecn deciileil l)y tiie presiding .ludge 
 
 ibc trial the . I udge instructed the jury that they against the defendant, 
 
 tfii:lil nut convict liim of larceny. The proseiMi- Id hi, that it was too late to raise tlic (|ues- 
 
 lidiitlicn claimed a conviction fi>ra niisdeineanor, tion, hy case reserved, foi- tiie full Court. 
 
 aii.ltlii; jury found accoidingly. Ona case heiiig (^hmii v. Ciiiuiiii'jhnin, K. & *!., 31 ; 
 
 „.,md for the fullCourt, ' (> C. L T., 139. 
 
 /A/'/, Wilkins, .)., (/iW;;///;!/, that, under sec- , , , ^, • ^, i 
 
 lliii)ftlu- Liirniii/ .1(V, .'{•_> and .{,{ \ ic, chaji. " ' 
 
 ■Jl, sec. :<, the conviction must he sustaine<l, -''"'"'• /" '' '•'•"imii^r, Heury, and Ta.schereau, 
 aii.l that although the offence was prohahly J.J. , (Ritchie, C:. . I. , ind Strong, J., r/iVs. »//«;/,) 
 ,«iiimittcdat sea the Court hail full jurisdiction that evidence of the uttering of a forged inilor.se- 
 
 i)f a negotialile chcijue or older is iusuHi- 
 
 inlhi' iH'ciiiiscs, 
 
 (JiKdi v. Mar/ill, '.i X. S. ])., 124. 
 
 tl. lonipoiiiid felony Trial iiad in otiier 
 
 County than one in which offence committed— 
 Prisoner was tried at Amherst iij)oii an indict- 
 ment eoiitniniiig two counts, one for roliliery 
 ami the other for receiving stolen goods. Hoth 
 
 inent of 
 
 dent to sustain a conviction on a count of an 
 indictment charging the uttering of a forged 
 cliei|iie or order. 
 
 On llic second (|Uestioii reserved, which wa.s 
 " wlietiicr the evidence on the part of tiie Crown 
 is sullicieiit to sustain a conviction on the first 
 and third counts of the indictment, or on eithei 
 of those counts," the judgment of the Court helow 
 
 f'tfenues were iiroved to have lieeii committed at , , , , , , , , , 
 
 , , . e ■, , 1. . r slioulil he reversed, ami the prisoner orilereil to 
 
 Truro, and the jury found a general verdict of , ,. . , ' 
 
 lie discharged. 
 
 Pir Hitchie, C J. — The question raised liy 
 tlie demurrer was not jirojierly hefore the Court 
 iiig,iiii(l that, altiiough he might he guilty of "» "Ppeal, the Court helow liavii g lieeii uiiani- 
 Kitli offences, as the rohhery was committed in '""'*'« "^^it'" respect to it. 
 
 Pi r .Strong, .1. — The Court below rightly 
 
 held, on the authority of li. v. Failcrman. Uen. 
 
 V/R'ftM V. Jiiix-icfi, 3 H. & C, •254, <'• ^- 572, that the (juestion raised hy tlie 
 
 demurrer was not properly liefore the Court, 
 the C. •) having given judgment on the demur- 
 rer, overruling it at the trial, ^loreover, there 
 
 guilty on liotli counts. 
 //(/(/, that the j)ris(...er should have been 
 ceeded against only on the count for reeeiv- 
 
 aniithcr county than the one in which the pris- 
 oiiM was tried, he must he discharged. 
 
 I. Conviction for uttering a forged order 
 
 for payment of money — Evidence in support 
 of conviction for uttering a forged cheque 
 
 was nothing in the law under which the prisoner 
 was extradited to prevent theC<mrt from trying 
 
 Extradition-Trial for other offences - Defen- ' ,,;,„ {,„. „„y „ff^.„,„ f,„, ,,,,i^,,, ,,, „.,,,^ accor.ling 
 
 liiiit was found gnilty on the lirst and tliird 
 ciiunts of an indictment, the hist count of wliicli 
 charged him with uttering a forged "order for 
 tlic payment of money," The evidence was, 
 that the defendant forged the name of \V. McF. 
 I'M the hack of a cheiiue drawn payable to W 
 
 to the law of the Dominion, justiciable before it. 
 Appeal allowed. 
 
 (Jueisn V. Cuiminiiham, lOlh March, 1SS5, 
 Cas. Digest, 107. 
 
 8. Criminal Information against Magls- 
 
 MuF, or order, and <d)tained the proceeds, which I trate for violation of duty— A Magistrate is 
 lie appropriated to his own use. 
 Ihlil, that the cheque, when indorsed, be- 
 
 entitled to six days' notice of a motion for a 
 criminal information against him for a violation 
 came an "order for the payment of money " to ' of his duty. The motion must be made in suf- 
 any one who should present it, and that the | ficient time to enable him to answer the same 
 
 term. 
 
 Queen v. fleuxtin, James, 101. 
 
 9. Crown case reserved— A question having 
 
 been raised at the trial by demurrer as to tl'e 
 power of the Court to try or convict the defen- 
 dant for another offence than that for which he 
 
 conviction on the last count was sustained by 
 the evidence. 
 
 McDonald, C. J., and Weatherbe, J., dissetit- 
 
 ing. 
 
 The first count of the indictment charged 
 the defendant with uttering a forged cheque. 
 ffdd, that the count was not sustained by 
 
411 
 
 CRIMINAL LAW. 
 
 412 
 
 WttH extratliteil, iind Imviiin lit'cn ilecided liy the 
 Iiit'siiliiig Jiiil),'!' iijiiiiiiMt tlif (Ict'i'iiilant, 
 
 //'/(/, tliiil it WHS t(i(i lute to liii.si' tli(;i|UL'Hti(in, 
 1 y 11 <-'i"*«' icxfivt'd, for tin; full rouit. 
 
 (Jiitiii V. Cnniiiiiiihitnl, (i K. it (1., 'M ; 
 (if. L. T., \'M. 
 
 Si I SlljiI'd,, 7. 
 
 10. Enibczxlenicnt Muncy received not 
 
 as rtfrvanfc or clerk -'i'lie prisoner, not having 
 lui'ii in the employ of the |)ro.ieeut(if, wiis sent 
 tiy hini to one Milner uitii a hor.se, as to whieh 
 Milnei' and the pidseeiitor, who owneiHlie horse, 
 had iiud some nejiotiations, with an order to 
 Milner to give the liearer a eheipie if the horse 
 suited. On account of a ilitl'eienee as to the 
 price tlie horse was not taken anil the prisoner 
 hfought him liaek. Afterwards the prisoner, 
 without any authority from the owner, took the 
 horse to Milner and sold it as his own property, 
 or professing to have the right to dispose of it, 
 and received the money, giving a receipt in his 
 own name. 
 
 //lid, that a conviction for emhezzleincnt 
 coidil not he sustained, as tlie prisoner, when 
 he received the money, diil not receive it as 
 a servant or clerk, hut sold the horse as his own 
 and received the money to his own use. 
 
 Queen v. 7'oj>/i/e, li R. & C, o6t). 
 
 11. Indictment—Application to quasli— An 
 
 application to the C'oiut on the part of a defen- 
 dant to (juash an indictment will be refused 
 unless the defect is clear and obvious. The 
 defendant, hy pleading to the indictment, will 
 exclude himself from having his application 
 entertained. 
 
 Where the defendant has had an opportunity 
 to nu)ve to quash tiic indictment when the cause 
 was called for trial, and before the jury was 
 sworn, but has neglected to avail himself of it, 
 he is put in no better position, as regards his 
 application, hy the jury failing to agree on a 
 verdict and being discharged in consequence. 
 
 Queen v. IVallace, 1 N. S. D., 382. 
 
 12. Indictment — Defects in —Waiver by 
 
 pleading — The defendant was convicted on an 
 indictment charging him with feloniously recei- 
 ving, in the months of May and April, 1878, one 
 pair of boots, the goods of W. H. , three fishing 
 rods, kc. , the goods of A. F. C. , and a quantity 
 of silverware, &c., the goods of J. R. J., then 
 lately before stolen and carried away by a certain 
 evil disposed person, he, the said T. J. Quinn 
 then well knowing the said goods and chattels 
 to have been feloniously stolen, 
 
 Beld, that the defendant having pleaded to 
 
 the indictment, could not, in arrest of juijg. 
 nient, take the objection that the indirtmint 
 was bad in law as charging him witii liavlni' 
 received certain goods which were not allcgtil 
 to have been filoii'tMinlii stolen, as the dcfccl 
 was aided by the verdict, inuler cliapt'.r '.1li,f 
 the Acts of 18()0, section ',V1 ; ami fuitiier, tlmt 
 the fact of three diU'ereiit oH'cnces being rii,uj,'iil 
 in the indictment, if objectionable at all, coiiM 
 not be taken advantage of after verdict. 
 
 The pri.soner was tried by a jury called finni 
 an extra panel, the order for which, made iinilur 
 4th H. S., c. (VJ, B, ,S7, was signed by only tlirte 
 of the Judges. 
 
 //ihl, that the order was valid, altiiough not 
 signed by a majority of the Judges. 
 
 Qui! It V. Quiiiii, 1 H. I'c <;., I.to. 
 
 13. Indictment for lieeplni? dynamite - 
 
 Whether carelessness need be alleged -Imlict- 
 ment charging the defendants with having un- 
 lawfully, knowingly and wilfully deposited iu a 
 room in a lodging or boarding house (described) 
 In the City of Halifax, near to certain stii'i'tsor 
 thoroughfares, and in close proximity to divers 
 <lwelling houses, excessive quantities of a dan- 
 gerous and explosive substance called dynamite, 
 by reason whereof the subjects, &c., were in 
 danger. 
 
 //e/il, gootl without alleging carelessness or 
 that the (luantitics deposited were so great that 
 care would not produce safety. 
 
 Weatherbe, J. dinfitiitiiiii. 
 
 Queen v. Ilolmea and Bmirii, 
 
 5R. &G.,498. 
 
 14. Indictment for perjury— In an indict- 
 ment for perjury, which charged the defendant 
 with having sworn falsely on certain proceed- 
 ings before Justices, wherein he was examined 
 as a v.'itness, the allegation of materiality 
 averred that " the said D. R. (the defendant) 
 being so sworn as aforesaid, it then ami there 
 became material to inquire and ascertain,'' &c. 
 
 Jleld, bad, as not sufficiently showing that 
 the alleged perjury was committed at the, said 
 proceedings. 
 
 Queen v. Boss, 1 Old., 683. 
 
 15. Intention criminal, inferred ft-om the 
 
 act — Where a prisoner is indicted for feloni- 
 ously wounding with intent to do grevious 
 bodily harm, the intention may be inferred 
 from the act. 
 
 Queen v. LeDante, 2 N. S. D., 401. 
 
 16. Insane— Care of— It is tbe duty of 
 
 the Executive Government of the Province to 
 
413 
 
 CRIMINAL LAW. 
 
 414 
 
 aMKiiniL' the custody nntl cure of jie rsons acquit- i the Court liy liiH L<ii-(lHlii]> the C'liief Justice, 
 1,(1 (if criiiiiiuil chiugcs upon tlio ground of wlio presided at tiie trial, that wliftlier tlio 
 iiiMiiiitv, whicii iluty, l)y the ooninion hiw of illegality conNi«ted in the order of the .sergeant 
 
 Kii(,'liUHl, is vested in the frown 
 
 r in the manner in which it wax carried out, 
 Qnii n V. Murtiii, James, .SiK, Stowc might properly he convicted. 
 
 A/mu that the jury were justilied in tinding 
 that the death of White wan eauseil or aceele- 
 lated tiy the way in which he was tieil hy 
 JStowe or hy his directions. 
 
 (^hiitn V, Sto>r<, i X. S. J)., I'il. 
 
 17. Jury de meilictnte linguae - Aliens 
 
 not entitled to— Alien may be juror— Alien 
 
 (lifiiiiliiiits are not entitled, in this Province, in 
 aiiv lase, civil or criminal, to a jury tk iinille- 
 idti liiiijiiii . 
 An alien may he a juror. 
 
 (,iH<ni V. Ihn-ilill It al., 1 Old., 12tj. 
 
 18. Jury list — Omissions In — The omiS' 
 
 sjiiii of tlic residences and ticcujjations of grand 
 
 j\iriirs in the list, and in the panel, held snlli- 
 
 I'itnt grnunds for ({uashing an indictment for 
 
 iVidiiy. 
 
 Qnctu V. Jiili/ffi, James, 2*20. 
 
 S)(tmaH V. Cnmi'liill, James, 94. 
 
 10. Malicious Injury to animal— 3rd R. S. 
 
 c. 169, s. 22— Defendant was convicted of hav- 
 
 21. Motion In arrest of Judgment — Two 
 
 offenceH in anme indictment Stating unknown 
 person in indictment .\ motion in arrest of 
 judgment may he made for any suiistantial 
 defect which appears upon the face of tho 
 record. If the ohjection he valid, tho whole 
 proceedings will he set aside, hut the j)arty may 
 he indicted again. 
 
 An indictment is clearly had where two 
 oflences are charged in a single coimt. 
 
 Where the names of third persons cannot he 
 ascertained, it is sutlicient to state, "a certain 
 
 , , , . „ I person or persons to the jurors aforesaul un- 
 
 iiii,' HI a secret and clandestnie manner, cut oil , ,, 
 
 , , . , , , ., ^ , I known, 
 
 V""» V. n/nckk, 1 N. S. ])., 383. 
 
 the hair from the manes and tails of two horses, 
 tlic ]>roperty f)f one William Ballam. 
 
 //■.'/, tiiat the ofTence was covered by sec. 22, 
 ciiiip. 1()!), R, S., 3rd series, under which defen- 
 ilant was indicted. 
 
 .lAo, that the offence having been committed 
 Hiongfidly and intentionally, without just cause 
 or excuse, and with full knowledge as to the 
 ownership of the property, malice might be 
 f.iirly inferred. 
 
 22. Murder— Ambiguous verdict -Venire 
 
 ilf iiuro — When, on an indictment for murder, 
 the jury returned a venlict in the following 
 words: "Guilty of murder with a recommen- 
 dation to mercy, as there is no evidence to show 
 malic'j aforethought and premeditation," 
 
 //(/(I, that it was too aml)iguous and uncer- 
 Qiieeu v. Smith, 1 N. 8. D., 29. i *'>'" t" iHow the Court to pronounce any judg- 
 ment on it. 
 
 Qiiein V. Hea/ey, 2 Thom., 331. 
 
 20. Manslaughter— Punishment of soldier 
 
 —Death caused by— The defendant, a corporal 
 of the Kith regiment, was tried for the murder 
 of James White, a private of the regiment, and 
 convicted of manslaughter. It appeared from 
 
 Remarks as to whether a venire tie novo can 
 be granted in a capital case. lb. 
 
 23. Murder— Circumstantial evidence — 
 
 the evidence given at the trial that White ^ Reserved case — Power of Court to set aside 
 having been placed in confinement while in a ' verdict — H. D. , J. C. I), and L. were tried for 
 state of intoxication, the defendant with two | murder. H. I), and J. C. D. were found guilty 
 
 men were ordered by Stevens, a sergeant of the 
 regiment, to have the deceased tied so that he 
 could not make a noise by kicking and shouting. 
 The order was not executed in such a manner 
 as to entirely put an end to tlie noise, and a 
 second order was given to tie up the deceased 
 so that he could not shout. In carrying out the 
 latter order Stowe caused the deceased to be 
 placed on the floor face downward, with his 
 hands cuffed behind his back ; a rope was fast- 
 ened to his feet, which were drawn up behind 
 his back, and the rope passed over his shoulders 
 and across his mouth and back again to his feet, 
 ■ffe/rf, in reply to two questions reserved for 
 
 and L, acquitted. 
 
 The following case was reserved as to J. C. D., 
 under Rev. Stats., c. 171, ss. 99 and 100 : — 
 
 Admitting the evidence to have been legally 
 before the Court and to be worthy of credit as 
 the jury have considered it, is there any legal 
 evidence in this case under which the conviction 
 of the said J. C. D. is sustainable in point of 
 law. 
 
 J. C. D. was mate, H. D. cook (colored), and 
 L. a seaman of the vessel on board which the 
 murder was committed. The murder was com- 
 mitted at sea and the murdered man was captain 
 of the vessel. There wt s no evidence that J. C. D. 
 
41.') 
 
 CRIMINAL LAW. 
 
 4i(j 
 
 IivrHiiniiUy coniiiiittutl thu iniinlei', unci no iliriTt 
 or pcmitivi! I'viik'iiPi! that liu cfmnsclli'il or ml- 
 vixtMl it. 'riie cviilc'iu'i' i\;;iiiii«t him Wii.s wholly 
 «'iivuiUMtiiiitial, and wiih in ln'iuf iis follown: — 
 At 4 i>'i'l<ii'k (in the niornin;,' <if the niiinlfi' he 
 WHS inijuiring for H. I>. , and went t'luwiiril 
 whciv II. I), was i)l('i!piii|{, Tho oajitiiin, while 
 lyinK in lii» lii'i'tii in his rahin, lietwi'fn 4 a. m, 
 anil ."( a. ni., was struck in the t'aco liy II. I). 
 with an iron liclayiiig pin. 'I'hu lilows wure re- 
 pt'ati'd «t'\<'i'al times, and II. I), then " got on 
 thu uaptaiii and held him down," I,., (who had 
 previiMisly lieen on deck, luit had gone lielow, 
 liuingsent for hy H. D. ), cainu on deck wringing 
 his hands and saying, " tho eook hast killed thu 
 ea]itain." .!.('. I), immediately after this came 
 ii|> from the forward cahin. S. (a lioy on hoard 
 tho ve.Hsel, and tho prinei|)al witness for the 
 jn'osecution), then asked J, ('. 1). what was the 
 matter, to which he replied that he did not 
 know. .1, (,'. 1). then went forward, lit his jiipe, 
 laid down on H. D.'s chest, smoked a few min- 
 utes, and then, with tears ruiniing down his 
 face, told S. to "go to the cahin ami help 
 Harry " (H. I)). .S. refused to gc», aim J. V. 1). 
 then gave the same order to L. and M. (one of 
 the crew), who also lioth refused to go. J. C. D. 
 then repeated the order to L., who then went. 
 H. I), and L then hrought the captain up and 
 threw him overhoard. The captain was not 
 <lead when hrought up, but there was no proof 
 that J. C. I), could see that he was still alive. 
 The captain groaned loudly after being thrown 
 over, • nd lifted his hands up, .1. C. D. was at 
 this time eryinr^. He then told M. to throw 
 the captain's bedclothes and mattress overboard, 
 directing him and L. to ])ut iron in the latter to 
 make it sink. H. Vt.'a hands and sleeves and 
 the bosom of his shirt were bloody, and J. C. D, 
 advised him to wash the blood off. H. 1). then 
 brought up the captain's small trunk containing 
 the ship's papers and handed some of them to 
 J. C. ])., who then said, "we cannot do what 
 we inttnded to do." (.S. on cross-examination 
 said, " 1 do not think he said 'as you intended,' 
 he might have said so.") S. then asked him 
 what he intended to do, when he said "that he 
 intended to go to the West Indies and sell the 
 cargo of coal ; then he intended to go to Mexico 
 and sell the vessel, but they could not do what 
 they intended." J. C. D. then directed S. to 
 burn the captain's private letters. He then 
 said that the best thing they could do was to 
 steer to land and sink the vessel. The vessel's 
 course was then directed to the land by J. C. D.'s 
 orders, and when near the land he directed a 
 hole to be bored in the vessel, near the water 
 line, and her name to be painted out. The 
 whole crew then left the vessel and went ashore. 
 
 il. ('. 1). stated to persons whom they nicl, mul 
 aim) when examined before a magistrate uimp tli>' 
 place where they laiuled, that they had left ilic 
 : vessel because she was leaky, ami that they liinl 
 lost llie captain overlioard. 
 
 He denieil any knowledge of the vessel liaving 
 a hole in her side, or her name being ])aiiitvi! 
 out. He also told M. that tliey must not >;iy 
 that the captain lii'd been killed, it a|ip('ui'e'>i 
 from the croMs-exainination of some of tliu wit- 
 nesses for the C'r')wn, that »ubse(|ueiitly, and 
 before his second arrest, J. ('. 1). ha<l .statcil 
 that the caj)tain had been miu'dereil liy II, |)., 
 and that he was the tirst who made thi.s state- 
 ment. This statement was in writing, hm it 
 was not given in evidence and was not allow i-.l 
 to be referred to at the argument. Jt aiipiartil 
 j that .1. ('. 1). and H. 1). had sailed togutlier 
 I before, the former as mate and the latter as 
 ' boatswain, of a cohired crew. The captain's 
 I clothes were divided among tho crew in tln' 
 I presence of J. ('. D., but J. C ]). to(-k no part 
 of them, .S, said on cross-examination, tiiat 
 t J. C. 1). seemed to be afraid ol H. 1). ; tiiat lie 
 (.S.) was afraid of him too ; that H. 1). foiliiweil 
 them up all the time on shore, and when tliey 
 were in bed, and said that if either J. C. 1). or 
 S, peached, he would swear them down. S. 
 said that J. C. 1). was kind and humane ami 
 seemed to be religious ; would not allow sweai - 
 ing. He appeared to have opposed the burniiij,' 
 of the ship's papers. His cabiji was oi)])osiU' 
 the captain's and within a few feet of it. 
 
 Held, /)er Young, C. J., Johnston, E. J., Dodd 
 and Desbarres, JJ., Wilkins, J., (//i.si «^('»;/, that 
 there was evidence proper to be left to the jury 
 (it was left to them with confessedly j)roin'r 
 instructions), and the jury h^ivin^ passed iiiinn 
 it, as they had the oonstitutiona' i ight to do, 
 the Court had not the power to set the verdict 
 aside, and the c(mviction was therefore su^stain• 
 able in point of law. 
 
 Per Johnstone, E. J. — That the verdict of 
 the jury was , mistaken one, but that the Court 
 had not the power to set it aside. 
 
 Ptr Wilkins, J. — That as the evideno! did 
 not exclude every other hypothesis but that of 
 guilt, there was no legal evidence to sustain the 
 conviction, and that the Court had the power 
 and the right to quash it. 
 
 Queen v. Dowxey et al.,2 Old., 93. 
 
 24. Murder — Jury attending church - 
 
 Remarks of clergyman — Medical expert — 
 During the progress of a trial for nmrder the 
 jury attended church in charge of a constable, 
 and at the close of the service the clergyman 
 directly addressed them, remarking on the case 
 of one Millniau, who had been executed for 
 
417 
 
 CRIMINAL LAW. 
 
 418 
 
 iiuiidri' ill I'. K. !■< iiixl tiilit tliuin tluit if tliuy 
 li.iijilifsiinlili'.il iloiilil of till! guilt of tliu [irisim- 
 lis ilii'.v «t'it' tiyiii^i tlii'y hIiouIiI iL'tiipfr jiistife 
 Willi ciliiily, ()iitM)f the piisoiit n wax I'liiivictt'ii. 
 
 //./-/, iiliiiiiiiii!,' llii; juilgiiiuiit of tliu Court of 
 Cniwii I'list'M Kt'survt'd for Xova Scotiii, tlmt 
 iiltliiiiiu'li tilt' ii'iiiai'ks of till! I'k'igyiimii wvw 
 lii'lily iiii|)i'i>|ii'i', it cdiilil not lie Hiiiil tlmt the 
 iiiiy wtie iiilliiuiiouil liy tiieiii mo um to ulluft 
 lliuir viTilit't. 
 
 A witiii'ss oil tin: trial, wiiicli wiim for iiiuriloi' 
 liy .tlKiotiiig, ciilk'il ii« a iiit'ilical t'.\|ii'i't, Ntateil 
 In till' Cidwii jirosuuiitor that tlieie " weiu 
 imlii la ill iiii'ilical Huifliuo by which it coulil liu 
 siiil ill wliat iliNtaiici! from the huiiian liody tlio 
 j,'im was IIiimI." 'rhi« was olijcotfil to, but the 
 wiiiii'.Hs was not iTosH-uxiiiniufd as to tho grounds 
 (if liis statfiiu'iit. Ho tlu'ii described what he 
 fiiiiliil on exaiiiiiiiiig the boily of the murdered 
 iiiiiii, and stiiteil the inaxiiiiuin ami miiiiiiium 
 ilistiuicus at which the shot iiiUMt have been 
 lireil. 
 
 Ifilil, alliiiiiiiif,' jiidgiiiciit below, Strong and 
 rniiniiiT. .1.1., ill"'" iiiliiij, that the opening 
 sliituiiiciit of tlie witness established his right 
 lii>])tiilv as a medical expert, and it not having 
 lnuii shown by cros.s-examiiiation, or by other 
 iiiwlical evidence, that his statement was untrue, 
 hi* eviikiice was |)roperly admitted, 
 
 V""» V. Prtipn; 1.") .S. f. R., 401 ; 
 !)C. L. T., 18. 
 
 23. OfTciice committed on the high sens- 
 Foreign ship— British subject — Jurisdiction — 
 
 A liiitisli ( 'ourt has no jurisdiction to punish a 
 fiiieigiicr for an otVence committed on the high 
 sias, ill a foreign ship, against a IJritish subject. 1 
 (i/iK.iii. V. Kliis/nnii, James, (52. 
 
 'it). Precept to abate nuisance — Rule 
 
 '('-/ granted for a precept to the .Sheritl' of the 
 ('iimity of Halifax, to abate a nuisance. An 
 iiiiiictiiioiil had been preferred against the de- 
 fiiiilaut ill a previous term, at the instance of 
 tliu City of Halifax, for electing a buihliiig on 
 a ;)ul)liL' street, and a judgment obtained, re- 
 iliiiiiiig Kim to abate tlie nuisance. It now ap- 
 piaiXMl by altid.rvits that the nuisance had not 
 Iji'cn uliated. 
 Rule was made absolute. 
 
 Quetii V. Hendry, James, 105. 
 
 21. Kccognizance— Practice on entering 
 
 judgment— In this case an affidavit was ob- 
 tiiineil from the Clerk of the Crown of the 
 fact of a recognizance having been entered into 
 •ly the defendants, of the signature of the 
 Justices of the Peace thereto, and its return 
 14 
 
 into the .Miipieme Court, aiul the non.app^3aruneo 
 of the party to jilead to the indictment. On 
 this allidavit a rule ni'ti was obtained, a co])y of 
 which, together with a copy of tlie allidavit, 
 was served on eaeli of the defendants, ity 1st 
 H. S., e. 100, 8. 17, the Justice on taking bail is 
 rei|uired to give notice in writing to the party 
 aci!iised, of the time anil place of ti'iiil, This 
 had not been ilone. The ipiestion was, whether 
 that clause of the Act was merely directory, 
 or wiiether it should be considered as a condi- 
 tion. 
 
 /'(/• llalibnrton, C. J. — As there appears to be 
 
 no settled practice relative to these escheats 
 
 here, I can see no objection to the proceedings 
 
 taken on the part of the Crown. Rule alisolute. 
 
 (JiiKii V. '/VioHiyw)/;, 'J 'I'lioni., 9. 
 
 28. Recognizance Practice on entering 
 
 judgment — Judgment will lie entered <ui a 
 recognizance against both principal and sureties, 
 where the principal has not appeared in accord- 
 ance with the condition of such recognizance ; 
 and wliere a rule »/.</ for such judgment lias 
 been served on the sureties, and the principal 
 has left the Province, and they have failed to 
 
 .show cause. 
 
 V«"« v. Viiilihii/, 1 Old., 701. 
 
 29. Recognizance E.streating -In order 
 
 to estreat a recognizance taken under Dominion 
 Act, I8(i!), c. .SO, all that is required is a ccrtiti- 
 cate from the proper officer (under sec. 4.") of the 
 Act) that it is forfeited ; upon that a rule iiiii is 
 taken out on affidavit of tho facts, and if no 
 cause is shown, judgment follows, but without 
 costs. 
 
 Practice in the ijiwcii v. Thompson, 1 Thorn., 
 9, athrnied. 
 
 <^hii:i n V. Hirkmun, .'1 R. & C, '2Th}. 
 
 30. Second trial of prisoners under in< 
 
 dietment — Where, on the trial of prisoiu-rs 
 indicted for breaking and entering a bank, the 
 jury disagreed, and there was no time left for a 
 second trial during the then sittings of tho 
 Court, 
 
 Jli'/d, that a trial could bo obtained by the 
 issue of a commission by the tioverninent, and 
 that the Court could not order a new trial of the 
 cause, or discharge tho prisoners on their own 
 recognizances. 
 
 Queen v. Wa'ion et al., 2 R. & C, 1. 
 
 31. Sentence to Dorchester for one year- 
 Discharge refused — A prisoner was convicted 
 of larceny, and sentenced to one year's imprison- 
 ment in Dorchester penitentiary. The warden 
 
419 
 
 CROWN. 
 
 *20 
 
 refused to receive him on the ground that the 
 sliortest period for which prisoners could he sen- 
 tenced to f)r received at tlie penitentiary was two 
 years. Prisoner was tlien taken to the County 
 jail. To a rule in the nature of habeas corpiin 
 the jailor, in his return, set out the conviction 
 for larceny, and also returnetl that the prisoner 
 was detained under a warrant of a Justice, for 
 attempting to escape hy tearing up tlie floor of 
 his cell, the warrant annexed to the return was 
 under the hand of two Justices. The C'oml 
 refused to discharge him, and decided that he 
 should be sentenced to imprisonment in the 
 common jail, for one year, inclusive of the period 
 for which he had already been detained. 
 
 Ill rt Hire, 2 R. & (i., 77; 
 1 C. L. T., .^i55. 
 
 32. Stolen property — Restitution of to 
 
 rightful owner — Defendant was convicted of 
 having received certain plates covered with 
 amalgam, stolen from a crushing-mill, knowing 
 them to have been stolen. An application was 
 made by the Napier Gold Mining Company for 
 restitution to them of a bar of gold extracted 
 by defendant from the amalgam. It being 
 uncertain whether the Company, or one Shaffer, 
 were the parties properly entitled to the gold, 
 it was ordered that the gold be handed over to 
 the Company and Shaffer on their joint receipt, 
 or to the Company with the sanction of Shaffer. 
 Queen v. Blad; 3 N. S. D., 231. 
 
 CROW\. 
 1. Cannot be sued or enjoined— Remedy 
 
 by petition of right — Plaintiffs sought to 
 enjoin the defendants from selling the road-bed, 
 right of way, rails, sleepers, rights, privileges 
 and franchises connected m ith a line of railway 
 between Oxford and New Glasgow, etc. , and to 
 set aside a conveyance in trust made for that 
 purpose. 
 
 It appearing that the Crown was the princi- 
 pal party interested in the conveyance sought 
 to be declared void, and that the injunction was 
 virtually against the Crown, 
 
 ffeld, that objections taken to the jurisdiction 
 of the Court on the grounds that the Crown 
 was not liable to be sued, or restrained by 
 injunction, and that plaintiffs' remedy was by 
 petition of right, and not otherwise, must pre- 
 vail. 
 The Montreal and European Short Line 
 
 Railway Go. et al. v. Stewart et al., 
 
 20 N. S. R., (8R. & G.), 115. 
 
 2. Crown officers — Com missions of- 
 
 CoiU't ordered commissions of Attoniey-dfiitiiil 
 and Solicitor-tJeneral to be recorded. 
 
 James, ISl'. 
 
 3. Crown property - Riglit of Crown in 
 
 respect of trespasses to Crown property, not 
 limited by R. S., cap. 12— Plainlilf appliuil h,x 
 a grant of Crown laml, and, wliile tlic iipplini 
 tion was pending, defendant illcgully cut a 
 number of logs on the lanil and removed tlieni. 
 The logs were seized by a Crown siu'vcyor unikr 
 section 3 of chapter 12, R. S. (4tii .scries), ami 
 were afterwanls driven to defendant's mill ami 
 sawn up. Plaintiff, having lirat demanded tk- 
 logs, brought trover for them and oljtaiiieil 
 judgment in the County Court. 
 
 Ile/d, that the Crown was not limitcil to the 
 condemnation proceedings set out in cup. I'J, H. 
 S. (4th series), as the chapter di<l not expressly 
 take away its existing remedies, Imt that, as 
 there was no evidence that the phuiititi' hail 
 ever had possession of the logs, the appeal iinist 
 be allowed. 
 
 Monjan v. llice, 4 R. & G., 308. 
 
 4. Right to seize cliatteis under mortgage 
 
 — The plaintitT E. entered into a contract with 
 Her Majesty, represented by the Minister of 
 Public Works of Canada, for the constiuetioii 
 of certain public works at Mabou, one section 
 of the contract providing in substance that it 
 should be in the power of Her Majesty to make 
 payments or advances on materials, vessels, 
 tools, etc., used, or to be used, on the works 
 upon such terms and conditions as to the Minis- 
 ter should seem proper, such materials, etc., to 
 be thenceforward vested in and held us collateral 
 security by Her Majesty for the due fultilinent 
 of the contract, but to remain at the risk of the 
 plaintiff E. , until finally used and accepted as 
 part of the work ; the plaintiff, however, to 
 exercise no acts of ownership or control over 
 the said materials without the permission of the 
 Minister in writing. A mortgage of a dreilge, 
 etc., was afterwards make by the plaintiif E. to 
 Her Majesty, purporting to be in consideration 
 of §20,000 advanced, and conditioned for the 
 repayment of the sum of §20,000, with interest, 
 in one year from date of execution. May i4. 
 1872. 'J'lie dredge, etc., were seized by defend- 
 ant, acting collector of customs, under orders 
 from the Commissioner of Customs, Ottawa, 
 some time in June, 1874, and an action of 
 replevin was brought by plaintiffs to recover the 
 same. It was proved on the trial by the admis- 
 sion of the plaintiff E. that a sum of at least 
 $8000 had been advanced under the mortgage, 
 but the plaintiffs claimed that a balance was 
 
421 
 
 GUSTO xMS HOUSE EMPLOYEE. 
 
 422 
 
 due from the depai'tinent on account of work ' 
 (lone under the contract and specification, anil ; 
 for extras, exceeding all sums advanced or paid 
 to the plaintiir K. by the department. 
 
 HJd, that under the contract and the mort- 
 gage, an advance having been proved, the Crown 
 had a right to authorize the defendant to effect 
 seizure of tlie property, and that t!'H evi'lence 
 given of work done under the contract was 
 iigainst the policy of the Public Works Act, 31 
 Vic, c. 1'2, and furnished no answer to the 
 claim of .ho Crown upon tlie materials. 
 
 Evim- J a). V. /I'oyv, 1 R. & C, 165. 
 
 5. G;' lints by 
 
 Ste GRANT. 
 
 CURRENCY. 
 
 1. Meaning of in promissory note— Notes 
 
 were declared on as payable in United States 
 currency, while the evidence showed that tlicy 
 were payable in " currency." 
 
 ILbl, that as they were made payable in the 
 United States, and the word " currency " in 
 that case would be held to mean currency of the 
 United States, the variation was not material. 
 
 Further, that the objection, if available, 
 should have been pleaded. 
 
 Souther et al. v. iVallact el al., 
 
 20 N. S. R. (8R. &G.), 509. 
 Affirmed on appeal to the Supreme Court of 
 Canada, 
 
 9 C. L. T., 210. 
 
 2. United States currency— What sufficient 
 
 tender of— By the terms of a lease of property 
 situate in Nova Scotia it was provided that cer- 
 tain payments should be made periodically in 
 "dollars and cents of United States currency." 
 After the execution of the lease the Congress of 
 the United States passed u law authorizing an 
 issue of treasury notes, not bearing interest, and 
 provided that they " shall be lawful money and 
 a legal tender in payment of all debts public 
 and private, within the United States, except in 
 payment of duties on import and interest on 
 United States bonds or notes." 
 
 Held, that the tender of United States treas- 
 ury notes, issued under this Act, was not a 
 legal and sufficient tender of the payments due 
 under the lease. 
 
 Nova Scotia Telegraph Co. v. American 
 
 Telegraph Co., 1 Old., 426. 
 
 CUSTOM. 
 Usage of trade — How proved — Where a 
 
 cargo insured "at and from Arichat to Hali- 
 fax," was shipped at I'etit de (Jrat, a port nearer 
 to Halifax, and distant nine miles from Arichat 
 by water, and one and a lialf miles by land, and 
 which by the usage of trade in Riclimond, the 
 county wherein both ports are situate, appeared 
 to be generally considered and treated l)y mer- 
 chants there, and by the masters of coasting 
 vessels in Ifile Madame, the large island wherein 
 said ports are situate, and also partly by mer- 
 chants in Halifax, as one and the same jrart 
 with Aiichat ; the Custom House for both ports 
 was at Ai'ichat, and the vessel and cargo were 
 lost shortly after the vessel left I'etit de Grat, 
 
 //i/d, that this usage did not bind under- 
 writers unless known to, or accjuiesced in by 
 them ; and no evidence of such knowledge or 
 acquiescence having been given, that the policy 
 never attached, and tiie iniderwriters therefore 
 were not liable. 
 
 Usage must be proved by instances, and not 
 by the ojiiuion of witnesses. 
 
 Henntssy v. New York Mutual Marine 
 
 Iimiranct Company, I Old., 259. 
 
 CUSTOMS ACT, ACTS 1885, C. 12, S. 228. 
 Inland Revenue Act, 1883, c. 11, s. 72— 
 
 Doubtful whether the auctioneer who sells 
 goods seized under these Acts can avail himself 
 of the protection the statute gives to revenue 
 officers. 
 
 Not bound to plead the general issue even if 
 held to be an officer entitled to the protection of 
 the statute. 
 
 It is a privilege which the officers may or may 
 not make use of. 
 
 McDonald v. Clarke, 20 N. S. R., 
 
 (8 R. & G.), 254; 
 8 C. L. T., 401. 
 
 CUSTOMS HOUSE EMPLOTEE. 
 Who Is under 5th R. S., c. 4, s. 67— In an 
 
 action against defendant to recover a penalty for 
 an alleged illegal voting at the election of a 
 member of the Provincial Legislature contrary 
 to the provisions of 5th R. S., c. 4, s. 95, it 
 appeared that the defendant was a sub-collector 
 of customs. 
 Held, that the defendant was an employee of 
 
423 
 
 DAMAGES. 
 
 424 
 
 the Customs House within the lueiining of the tlie venlii't, may suggest a reihu'tioti nf the 
 Act. ilamages ; or, where tiie suggestion is iicit ac- 
 
 Miinro V, K//lot>, l2() X. S. H., (S R. A' (!.),.'?:K> ; itepteil, may or.ler a new trial on the ground of 
 
 y C L, r. , (j."{. excessive ilamages alone. 
 
 Ctarh' V. FiilUr/oti, '2 X. S, 1)., ;;4s. 
 
 UAM.IGES. 
 
 1. Arrest, etc. Damages One hundred 
 
 aiul Hfty dollars not excessive damiiges for 
 arrest ami detention hy a constable for half an 
 hour, whore tiie i)liuntit!" was put to the expense 
 of defending a suit liefore a magistiate and 
 prosecuting an appeal. 
 
 Cox V. r;,n„i, '2Py. k C r)'2s. 
 
 Reversed on appeal to the Su[)reme Court of 
 Canada, hut on the ground of admission of im- 
 proper evidence. 
 
 aiiiiii V. Cox, ;} s. c. R., L'oo. 
 
 2. Breach or agreement of sale of land - 
 
 Wlien lands are bargaineil and sold, the measui'c 
 of ilamages for non-fulHhnent of the agreement 
 is the price for which the lands were so sold. 
 
 Li/m-h v. Hill!/, '2 Tlioin., 4 IS. 
 
 3. Breach of promise of marriage - 
 
 Evidence in mitigation of damages — //</(/, in 
 an action of ))reach of promise of marriage, that 
 evidence of improper con<lucl on the part of 
 the plaintiff before the contract had been entered 
 into, and of general reputation was properly 
 excluded 
 
 ^/"O, tluit if the evidence was offered in 
 mitigation of damages, it should have been so 
 tendered, and the attention of the .Judge directed 
 to it. 
 
 Einbret v. Wood, '20 X. S. R., (8 R. &(!.), 4(». 
 
 4. Collision -Wliere both colliding vessels 
 
 are in fault, neither is entitled to recover dama- 
 ges or costs from the other. 
 
 The Corddia and The Oxiirey, 1 Old., 772. 
 
 5. Excessive —Where the jury in an action 
 of trespass found for the plaintiff on the ground 
 of adverse possession, the defence being a docu- 
 mentary title, the Court refused to set aside a 
 venlict for one hundred dollars as excessive, 
 although defendant had a good documentary 
 title and had convinced himself before commit- 
 ting the trespass that the land was his. 
 
 Desmond v. Fairbanks, 1 R. & C, 279. 
 
 6. Excessive -Reduction of or new trial— 
 
 Where the damages awarded by the jury are 
 excessive, but the plaintiff is entitled to recover, 
 the Court, in the exercise of theu" control over 
 
 . 7. Excessive — Setting aside verdict on 
 
 this ground —Per McDonald, J.— This wiin im 
 action for false imprisonment, and the defcndimt 
 allowed judgment to goliy default. Damages wuie 
 asses.seil before a Jmlge of ti'« Supreme ('oiiit liy 
 a jury wiio found for the plaintitF .S.'tT", ami ;i 
 rule nisi was obtained to set aside their liiuliiii' 
 on the ground of excessive damages, and on the 
 grounds mentioned in an affidavit. It is nnt 
 neces.sary to refer to tiic latter. The dculiua- 
 lion does not contain a comit for certain speciiil 
 damages of .•*;{()(), which were ])roved without 
 any olijection at the trial, although tiie defeml- 
 ant liail counsel engaged. Wiiat is iiiorc, evi- 
 dence of the amounl of the special damages was 
 elicited upon the cross-examination of the plain- 
 till' )>y tlie defendant's counsel. It does not 
 appear lliat llie leiirned .Iiulge who ])resiik'il 
 instructed the jury as to their duty under the 
 jjleadings and evidence. I5y the evidence itself, 
 irrespective of the pleailings, it is (piite cleur 
 that the damages were not excessive, hut if 
 exce])tion had been taken to the recei)tioii of 
 evidence of special damages under the ileolara- 
 tioii, it is more than likely that such exc:ei)tinii 
 woidil ])revail, auil, in case it did not prevail, 
 liien, if the rule «/</ to set aside the imiuisitioii 
 had been taken on the ground of the receptimi 
 of impro])er evidence, and also on the giimnil 
 that tiuj learned .Tiidge did not instruct the jiiiy 
 as to the speciid damages, it woulil be dillicult 
 to upiiold their tinding. Rut the ground of 
 excessive damages is negatived by the evidcnei', 
 and I cannot look beyond the rule iiiii for utlicr 
 grounds than tho.se chosen by the coiuisel who 
 acted for the defendant. The Courts do ii»t 
 favor the setting aside of verdicts in cases of 
 torts for excessive damages, tinless such excess, 
 to use the words of the autiiorities, be out- 
 rageous, or unless the Court be .satisfied that 
 the jury acted under the influence of undiio 
 motives or gross error, or misconception. 
 
 The case of Kiiii/ht v. Eijerton, 7 Exch., 407. 
 was brought before the Court in an entirely 
 different manner from this. There the rule im 
 for a new trial was taken on the ground of nus- 
 direction, here it is not. I think the rule im 
 for a new trial ought to be disclnirged. 
 Fowle V. Smith, unreported, delivered, Dec. lSi3. 
 
 8. Liquidated— 
 
 See CONTRACT, 12. 
 
425 
 
 DAMAGES. 
 
 426 
 
 9. loss of vessel by shipwreck after cap. 12. Measure of, in action on warranty— 
 
 ture—Cliiiiii fill' 'liiiiiiig<'«i iip"" loss "f vessel by When tlic bought-notc Hpocities the article 
 
 shipwri'ik after cai)tiire, rejected, tlierc lieiiig liouglit to be No. 1 mackerel, it is a warranty 
 
 111. iiiiscoiiiliat on tiie i)art of tlie captors. tiiat they are of that (juality. The inspection 
 
 Tht Roiicio, Stewart, 5oG. of a few barrels before the purchase does not 
 
 invalidate the wai'ranty. 
 
 The measure of damages is the difference 
 
 10. Measure of damages for Injury to between the value of the article actually sent 
 goods delivered to common carrier- Plaintiff to tlie foreign market, and the value of an article 
 (k'livered to defendants a roll of oil cloth to be „f the (luality apecitied in the bought-note. 
 cciiiveyed by them as common carriers. On !)■/,/• v. liis.-<( It, 2 'V\wm., ITS. 
 iiirivid it was found to be damaged, and the 
 
 ]ilaiiitill' refusing to receive it brouglit action for |3, McasurC Of damages - Substantial 
 
 it> tail value. The defemlants paid a small sum performance of contract — Action for work 
 
 iniu Coui t. The amount of damage was various- done— Where tiiere is a substantial performance 
 
 ly cstiinated by ditlerent witnesses, tlie higliest „f work undei' a special contract, though not in 
 
 estimate lieing only one-tiiird the alleged value strict accordance with it, and there is no fraudu- 
 
 of tiie roll. The Judge at tlie ti'ial directed the lent or wilful deviation from its terms the c(m- 
 
 juiy timt if tliey thought the tlamage exceeded n-ictor is entitled to recover for the w ork done, 
 
 till' iiiiiouiit paid into Court they should liiid for the measuie of damages in such a case being tlie 
 
 tliu pia.iititl', ollierwise fur defendants. He agreed price, less such a sum as it would take 
 
 fiutlur diiV'Lted them tliat if the oil cloth was to complete the work according to the contract. 
 
 iKil seriously damaged, but easily reparable, the Mcliiloxh tl a/, v. C nihil, 2 OM., "itiS. 
 ]iliiintill' was bound to leceive it and claim only 
 
 •lainages, but if too seriously injured to fulfil ^^ KcdUCtion Of- WhCrc a VCrdiCt iS 
 
 the purpose for which he required it, he might f^^^^^_^, _^^^,^.^^^^ ^,^^ ^.,^^^_.^,^, ,,f ^,,^, _,,„,^,^,^ .^^j j,,,. 
 
 ehmii its whole value. unconira.licted evidence of the only witness 
 
 The j:iiv found a verdict for the full value of 
 tile lull, lifter deduetiiig tlie sum paid into Court. 
 
 //'/'/, Wilkiiis, . I., (lisMii/iiKj, that there had 
 lieeu a niisdiieetion ; tliat tlie jilaiiititf could 
 only leeover damages to the e.Meiit of the injury 
 lie had sutl'ered, and not tlie full value of the oil 
 eliith, and that the rule for a new trial should 
 lie made alisolute unless tiie plaintiff would con- 
 sent to have the amount of tlie vei'dict reduced. 
 Payment into ('<iiiit docs not admit the full 
 claim (if ])laintiff, but only tiie liability of de- 
 femhiiit til th(^ aiiioiiiiL so paid in, and if the 
 plainlitl would recover beyond tiiat amount he 
 must prove that lie is entitled to do so. 
 
 Ihiiliji v. Wiiiil'ior lO AiiiKipolit llallirnii Co., 
 
 •iX. s. IX, r)37. 
 
 examined at the trial, for a larger amount than 
 the evidence warrants, the Court will either 
 onler a new trial, or if the jihiintiff consents, 
 reduce the damages to the sum warranted by 
 the evidence. 
 
 The Court have power so to ■.educe the 
 damages with the consent of tlie plaintiff alone, 
 and against the will of the defendant. The 
 (juestion of c<ists in such cases will depend on 
 the particular circumstances. 
 
 /»'/.«()• <t a/. V. //nr/ >/ a/., 1 (.)lil., 7l'7. 
 
 15. Remoteness — Where a vessel is de- 
 tained by tlie charterers beyond the aureed time 
 for loading, and is lost in a storm during such 
 detention, the hiss of the vessel is too remote a 
 coiise(|Uence of the detention to form the sub- 
 ject of an action against the charterers. 
 
 Where part only of a declaration is bad, the 
 demurrer should be to that jiart and not to tlie 
 whole declaration ; and if in such case the 
 (lelined rules for estinvting damages ; it is a defendant demur to the whole declaratiim the 
 matter to lie submitted to the sound discretion (v„„.t will give judgment on the demurrer for 
 mid judgment of the jury, the actual loss to ^]^^ pUiintitf. 
 
 11. Measure of, in action for injuries to 
 
 passenger In actions against carriers of jias- 
 seiigers fur injuries, there seem to be no well 
 
 tlie plaintiff, present and prospective, being the 
 liiwcst amount which they are justified in giving ; 
 and the Court will not setasiile an assessment of 
 
 Tohin V. Symoiid.'< if a/., 2 Ohl., 141. 
 
 16. Sheriir -Action against—Measure of, - 
 
 (liimages by a jury where tiiere is no evidence to Where the defendant, as si'eritf, levied on eer- 
 
 eliiiw niisconduct of the jury, or tliat they acted tain goods under executions, and a writ of 
 
 upon a wrong principle, or from a corrupt motive, attachment in bankruptcy was afterwards issued 
 
 o/'UK-hnrilv. Wiiiilyor li- Aiina/iolis Rni/iray Co., against the execution debtor, but the sheriff, 
 
 1 R. & C. , 8. after the issue of the attachment, proceeded to 
 
427 
 
 DEATH. 
 
 428 
 
 sell under the exccutioua and paid over the ' 
 proceeds to the execution creditors, the Court : 
 refused to set aside a verdict against the sheriff, j 
 at the suit of tlie assignee, for improperly sell- 
 ing tlie goods, etc., and for his failure to iluly 
 execute the writ of attachment and hand over 
 tlie property of the insolvent to tlie assignee, 
 
 Hild, that the return to the writ of attach- 
 ment did not estop the plaintiff in the present 
 suit from saying that the same had not been duly 
 executed. 
 
 Held, alio, that a verdict for the net proceeds 
 of the sale, with 12 per cent, ailded, was not 
 excessive, the evidence justifying the finding of 
 the jury that the goods would have brought that 
 amount if properly disposed of. 
 
 Kiiiuiy, Aisii/iici', v. Dndmnit, '2 R. k C, 19. 
 
 17. Wrongful dismissal — Measure of 
 
 damages— In an action for wrongful dismisscl 
 plaintiff ol)tained a verdict for the whole amount 
 of wages from the date of dismissal. Defendant 
 contended that the verdict should have been 
 reduced by whatever s>nu the plaintiff might 
 have earned. 
 
 Hild, that as the eviilence disclosed that 
 plaintiff coulil not speak and ilid not understand 
 the language of the country, that he was from 
 life-long habit incapable of doing any other 
 labor tlian that of his trade (to engage in which 
 he had come to this country under contract with 
 defendant), and that in fact he could not obtain 
 any employment, there was no reason for dis- 
 turbing the verdict. 
 
 Jejjkal v. Xnra Si-ofin (ilas-i Co., 
 
 2() N. ,S. H., (8R. & (}.), .388; 
 9C. L. T., 60. 
 
 DARTMOITH. 
 Liability of for County School Rates — s, 
 
 ASSESSMENT, vi., 4, 5, and (i. 
 
 DEATH. 
 
 1. Death by same calamity- No presump- 
 tion of survivorship -Where two or more 
 persons, and especially where relatives, perish 
 in the same calamity, the law recognizes lu) pre- 
 sumption of suivivorsliip ; but in tlie total 
 absence of all evidence respecting the particular 
 circumstances of the calamity the matter will 
 be treated as if all of them had perished at the 
 same moment, and consetjuently none of the 
 
 parties will be held to have transmitted any 
 rights to the other. 
 
 A testator, .J. C, by his last will, bequeathed 
 a certain fund to trustees in trust after payment 
 of an annuity of t'SO sterling to K. H., ami a 
 disposition of the remaining income during the 
 life of his daughter, L. C. (who was illegitiinate), 
 Then on further trust, after the decease of his 
 .said daughter, to transfer and di.sposu of the 
 said fund to such of her children or grand-chil- 
 dren, as should then be living, in such parts and 
 proportions as she should appoint, or otherwise 
 in 0(iual shares. 
 
 By a subsequent clause he proviilcil that 
 should his daughter die " without leaving any 
 lawful issue," that the fund should be paid to 
 his nieces in equal proportions, or to their law- 
 ful issue then living. 
 
 He further provided that the above bci|ncst 
 to his nieces should I)e subject to any legacy or 
 legacies, not to exceed in the whole t'llHHI stcil- 
 ing, wliich liis daughter, in case she should have 
 no lawful issue, might by lier last will give and 
 be(jueatli, notwithstanding her coverture. 
 
 L. C, shortly after the death of the testator, 
 married H. S. 11, by whom she had three child- 
 ren, and made her will after her marriage 
 (under the power reserved to hei' in the will of 
 the testator), whereby she l)equeatlied out of 
 the .said fund to her hu.sl)aiid, H. S. 15., fdiX) 
 sterling, and to her mother, K. H., 1401) sterl- 
 ing. Silt! a)i|iointed her husband executor, and 
 he duly jiroved the will after her death, as here- 
 inafter stated. 
 
 L. C, then L. ){., with all her children, three 
 in number, embarked in February, l.Sd'J, in the 
 steamer " Wicsbach," bound for Halifax, but 
 neitlier the steamer nor L. 15., nor any of her 
 children, ever arrived at Halifax, nor had any 
 information been since received of the steamer, 
 nor of L. 15., nor of any of her children, nor 
 what has become of tiieiii, iior how or in what 
 manner the said steamer was lost, noi' how or in 
 what manner the said L, 15. and her childier. 
 died, and which of said children died first or 
 last, but it was assumed that some time dnriiig 
 the year ISfi'i the said L. 15. and all the ( liildien 
 that she had by the said H. S. 15. (who survived 
 her), being the three mentioned above, perished 
 on board the .said steamer " Wiesliacli," ti>at 
 foundered at sea under circumstances unknown. 
 
 ffr/d, Hrst, that the fund could not be assigned 
 to H. S. B., as the heir-at-law of the ihildren 
 of himself and of L. B., because such children 
 were entitled as should be living at the decease 
 of L. B., and there was no proof that any of the 
 children were so living, i. <'.., that any of the 
 children survived her, and, she liaving been 
 
429 DEED. 430 
 
 illiLritiiniitc, tlie title of her children depended from America with ii cargo of provisions to 
 
 I'litiiL'lv 111! tlie will of the testator. (iihrallar, from thence to l>ourdeaux, where she 
 
 Seamdly, tliiit tlie fund could not he assigned took on board a cargo of wine, was captured 
 
 to tlie nieces oi (heir I'epresentatives because in 1811 upon her return voyage to the United 
 
 thiir title (lejicndnl entirely on the daughter L. States for violation of the order-in-council of 
 
 I'., ilyiiii.' witliout leaving any lawful issue, anil 'J.")tli April, 180!), which declareil that " all ports 
 
 tlinc was no jiroof whether she did or dill not so under the government of France shall be 
 
 ilic, /. '., ^vlictlier livr children did or did not subject to the same restrictions in point of 
 
 survive her. trade and navigation, as if the same were 
 
 Tiiiidly, that the will of L. H. could not take actually Idockaded." 
 
 fctlkt liccause she was only empowered to //(/</, that the Due de (.'adore "s letter to (ien- 
 
 ln.|U('ath the CltXXt sterling " in case she had no eral Armstrong, dated August .5th, 1810, stating 
 
 lawful issue." and she had issue born, and there that the French decrees should cease to operate 
 
 w.is no pinof of survivorship between her issue on the 1st November, 1810, provided "Kiigland 
 
 ami linself. should abandon her orders-in-council, and her 
 
 Lastly (llicre being an intestacy in the events new jiriiicijjle of blockaile " had never operated 
 
 that lia|)|pi'ned), tli;it the whole of the fund must to repeal the decrees, as the British (Jovernmcnt 
 
 1k' (listiilmtcd among the next of kin of tlie had not abandoned the orders-iu-council ; that 
 
 tc.-tatiii, subject to the payment of the annuity the order of April "JOth, I80!t, was still in force, 
 ti> K. 11. I and the vessel and cargo forfeited. 
 
 Tlui|iifsticinas to whether the intestacy should This case discusses the distinction iietween an 
 
 lio L'iiiii]iiiti il from the time of the death of the ordinary blockade and the conditions of things 
 
 tistator, or from the date of the events which under the Kiiglish oider-in-council, and sujiports 
 
 liiiiihkiil llie intestacy, was ordered to l)e argued, the right of the English to enforce the order. 
 
 ami the decision thereon leserved until after The Xiir Or/iaiii I'luktt, .Stewarl, 2(j0. 
 siicli ai;.'nnu'nl. 
 
 Hwi-^hi>n(i 1 1 a/, v. Wi/h-lii-i it a/., '2 Old., 270. 
 
 I 
 
 2. Presumption of, rrbiitted -The adinis- DEED. 
 
 sioii nil tlic iccoid that Jiaities arc alive, jinv 
 
 dmics t!ic i.rosumption of their death, arising t. Absolute deed -Claim to liave It de- 
 
 fiDiii coiitinufd absence. creed a mortgage— Defendant took a convey- 
 
 JJuniii V. MrKdiinj, James, 3'28. ance of land from A. F. LeHlanc in the form of 
 
 I an absolute deed, dated I'Oth July, 18(i4, and at 
 
 ! the same time executed a bond to reconvey iijion 
 
 reitaynicnt of the consideration money of the 
 DEBENTURES. ! deed within two years. At the expiration of 
 
 that period det'eiidant asked LcHlanc wliether 
 
 "Issue of" - Distinguished from "sign- the money wouhl be lepaid, or he should keep 
 
 ins." ^I'l' l'""!. t" wliich Lcl'.lauc replied that he 
 
 /'' i' Hitcliie, K. ,J. — .Signing is not issuing. would ])icfcr that defendant should keep the 
 
 /'"■ Wilkiiis, ,r. — "Issue" means to jmt forth land. The bond was given u)) to defendant and 
 
 •sii as to liiiid the party issuing. he took the land, allow iiig Leillanc to live on W., 
 
 Jdimtt V. Sinclair, I R. & C, .'iit^. but no rent was paid, and neither the ])rincipal 
 
 I nor the interest of the money advanced by 
 
 defendant, who afterwards sold the land for a 
 
 ( larger sum than the amount of his advances. 
 
 DECEIT. i LeIUanc afterwards became insolvent, but at 
 
 I the time of his giving up the property he was 
 ^<' FRAID AND MISREPRESENTATION. ' not indebted to any of the creditors who had 
 
 I claims against him when he went into insolvency. 
 
 ' His assignee sought in this action to have the 
 
 deed decreed to lie a mortgage. Decree for 
 DECREES OF BERLIN AND MILAN. defendant with costs. 
 
 V , JIiiiili rMtii V. i'nminn, \\. K. 1)., 87. 
 
 >ot revolted by Due de Cadore's letter of 
 
 August 5th, 1810 — Diacussion of retaliatory 2. Absolute In terms decreed to be 
 
 measures adopted by England and their mortgage — I'laintill', lieing iiuleliteil to several 
 legality— An .American vessel, which had sailed persons, conveyed property to his son, under an 
 
431 DEED. 4:^2 
 
 iij,'rci'iiiciit tliat the sdii should li(|uiilalo tlio mid tlio i-ciil oki .to sold tlicfeuiiiU'i'. .\t tlic sal,. 
 
 dclits, and the {ilaintilf should hiivo six yi'iirs to the adniinistmtnr ])uruhiised the land ami suli. 
 
 ])ay liini such amounts as he should advance. sei|ucnlly exccutecl a deed of it to the ])liiiiitjt|', 
 
 jilaintitF to remain in possession in the iiu'anliint', I'levious to executinj^ this di'od. the adiiiinis. 
 
 and if he failed to it'jiay the anioitnts, the land tiatoi' olitaincd a letter of license to sell llic real 
 
 should liecome alisolutely the |Udperty of the estate under which tne s.inie lands were sold iind 
 
 son, wild, coiitcmpoianeously wilii the execution liouj;ht in liy idaintiU'to whom the adniinistiiitdi- 
 
 of the deed, delivered ii liond conilitioned foi' j^ave a deed. The consideiation ex|)i'esseil in 
 
 the fulfilment of the ai,'reenient. The son after- the deeds was not actually ]>aid Ity jilaiiiliir. 
 
 wards conveyed the projieity to Dinm. who was IJoth the deeds to him hore date the same day, 
 
 aware of the leiins of the a^'reement. and were recorded (he same day. I'laimitf 
 
 Ilihl, thai the transaction was in eU'ect a lirout;ht ejectment aj^ainst tiie occU])iers nf the 
 
 moiI;,';igi>. and that Dunn coidd not claim to pro))erty. and ihcy defemled on the trrduiid that 
 
 ludd the land as security for an allei.'ed claim |dain(iir iiad no title, as he claimeil thriniL'li tlic 
 
 ajiainst the plaintitl', \\hicii \w had discliarj,'ed, administrator, « ho was delial'red, )iy the rclatimi 
 
 and wliicli was not mentioned in the original he liore to tiic real estate, from ;,'iviin; any litlo 
 
 aj;reemeiit, hut should re-convey the land on to it. 
 
 liayment of the amount due ..n the agreement //'/(/, that although the deeds could Ipc sit 
 
 lietwcen |>laiMti(r and his son, less any income asi<le in eijuity, on a|)piication ot the hciis m 
 
 derived liy Dunn from the land. cieditors, yet, until that right was cxcrciscil, 
 
 Kiiolmi V. Dtiiiii 1 1 til., I!. Iv D. , ."il»t. tiie heirs could not resist a ri'covciy in ejwt- 
 
 nu'iit. and that the vci'dict for pliiiititl' must 
 
 3. Absolute In Icriiis dcrrccd lo be inort- '" »*"-*i'''""' 
 
 gage Defendant, on Mardi '11, l,S(il, conveyed ! M'l.n„l v. (Ulli, . ,i „l., 1 \. .v. |»,. •_>,". 
 to J. .1. Marshall certain re.il estate, hy an 
 
 instrmnent iu the form of an ahs.dutc dce.l, l.ui 5. Adiiiliilslralop's rteert, reoltiil III, pre- 
 
 which defenihuit contended was given as a sumptive evidence that sale duly advertiswl- 
 
 mortgageto sccun' a del.t due Marshall. On The Courl will not favor olijcctions, taUci, against 
 
 .lanuaiy I, ISdj, .Marshall signed a meirioiandum ^ sale of real estate hy an adniinislratnr for jiay- 
 
 acknowlcdgiug tlu> receipt of 178, 1S«. 4d., uient of del.ts, umhr an order of thi' ( lovinnir 
 
 from defendant on account of the projierty, and Council, after the puichasei' has heen lliirticii 
 
 " leaving a l.alance of t'171. l-'s. lid., which, y^.■^y^ i,, possession, and will in such caseicccive 
 
 when pahl to me, and tiie interest thereon, I the recitals in the deed as presumptive cvjdcii.r. 
 
 hind Iny^elf to leconvey the .siid iiroi)erty," that the sale was duly advertised, lint wli.iv 
 
 etc., and there were other memoranda show- the administrators deed conveyed more land than 
 
 ing that Maishall hail treated the conveyance was descril>ed in the advertisenu'nt , the variaiioe 
 
 as a mortgage. In January, ISti.S, defendant, was hehl fatal to dcfen.lanfs title to sni plus, 
 
 having continued in possession of the land ever ll'illi.^ v. ('ttnniliill. .hiines. 4.s. 
 since the execution of the conveyance, liecanie 
 
 the tenant of Marshall under a lea.se then entered ^^ AUeratlOll Material alteration - Bur- 
 
 into. .\ftc,. the death ot .1. .1. .Marshall, plam- j^„ ^^ ,^^f _ ,,, ^,„ ,,,.,.„, ^^^.^^^ .|,,.^.,„,,,„„ 
 
 tilt, claimmg under his will, lirought an action ,• 1111 .1' 1 c ., i.i.aK 
 
 c . ' f- ,is sui'etics on a liau-liond, the detcncc cluillj 
 
 of ejectment against the defendant. ,• , .1 , .1 1 1 ... ■w;,i..ll,v 
 
 • " relied upon was that the liond wasMtialnl "\ 
 
 //(/'/, an colli ta Me plea having lieen pleaded, t ■ 1 1. .• 1 41 : .f. „. ;. . ..v,. 
 
 ' ' ••si- niaterial alterations made therein after Us cm- 
 
 that the conveyance from defendant was a ^.„^i„„_ ^^„,, ^^.n,,„„j ^,,^ j,,.^.;^^. „f ,,cfcnilants. 
 
 mortgage, and that the relation of mortgagor ,,y j,,^ ^,,^^^,„.^ „f ^1,^ ,,^^j^ ua-ntioned for the 
 
 and mortgagee was not altered liv tlu^ fact of f .1 1 f 1 , . 1 ,1, . „i,«m 
 
 " ^ aiipearance id the detendants, ami tlic muimi- 
 
 tlie lease heiiig made in l,S(iS. . ,- , ., , . 
 
 ° tlition 01 another date. 
 
 J/rn-.sA„// V. ,S7,,/, |{. Iv 1)., IHi. jj^ ,,^^ ^^j^j^^,,^,_ ,^ni,,,„i„^, t,,^ j,„i^,„„„t „f 
 
 Kitehu .(., that the alleged alteratiuii luing 
 
 4. Administrator purchased real estate noted in the attestation clause, the hiudoii was 
 
 of testator and conveyed it by deed - Grantee ujion the defendants of showing that it was iiiaiie 
 
 bring.s ejectment - Deed good against heirs suliseinient to the execution of the liond, paiticii- 
 
 until set aside— The father of defendant died larly in view of the fact that defendants did n»t 
 
 intestate, and administration was taken out liy call as a witness their own counsel who was an 
 
 Donald .MuLeod. Previous to intestate's death attesting witness to the bond and in a ]io»itii>H 
 
 a judgment had been recorded against him, ! to prove when the alteration, if any, was iiiade. 
 
 which was revived against his administrator, | l\r Ritchie, J., in the judgment appcaW 
 
433 DEED. 434 
 
 ficpiii, tlinl llic clause of tlie Stutiiti' ri'(|uiiiii^' of tlii'rin(>rt>,'i\gi', liis titlr was gdod iiiilcss tlio 
 
 liail-lionilH to lie tilc'tl is merely dii'eetoiy, iiml mortgiige wum regiwtei-ed pi'ior tii the regisitriition 
 
 tliat fiiiliire ti> edinply with it will not render of the deed, mid that in order to prove Kiieh 
 
 liie lioiiil iiividi<l. ifgistriilioii it was neeessiiry to show that the 
 
 ,l/«i, tliiil. assuming that the hond was altered eertilieat(! had lieen signe<l liy the pi'iijier ollieer, 
 
 after execnt ion liy making a eiiange in tlie date tlie niei'e prodLiction of a (lapei- juir/Kirfiiiii to lie 
 
 ill wliicli thi' defendant was to appear, sueh an a t'ertilieiite not lieiiig sullieient tnider 4tli H. S. 
 
 ;(!tiTatiiili, if made Iiefore the liorid was deliv- c. 70s. IS. (Same as ."it h K. S., e. S!, w. IT.) 
 
 lied to the sheiilV, and liefore it eanie into the Umilil v. .}/<•<• riilur, 1 1!. & (i., .'t.'tit. 
 
 iiistndy of tile plaintill's. wciidd not vitiati' the Kollowed '\\\ Mcl.'oriiKtrk v. /)< iiiii.idii, .'{ I!. Hi 
 
 lidiiil oiall'ord a defenee to the aetion. (i., 71. 
 Ihfti ifttl. V. \\'o(,ilin,ilh il til.,; I!. \ (i.,!Hi: 
 
 7(' L r 144. "■ Coloroi'tillc to land under void deed 
 
 . , , 1 . .1 w .. » f -To aeiniii-e a eolorahle title to land under a 
 
 .\!liiiiu(l on appeal to the Nii]irenie ( oiirt ot ' 
 
 , void deed there must lie oiienaud continued acts 
 
 • aiiaila. , . , <• i , i i i 
 
 \Vi,ii<hr(,rlli V. Ilii-h-i(, 14 .S. ('. I!., 7;{4. "' possession oi some part ot the I.ind emiiraced 
 
 within the deed. Where the deed relied on as 
 
 7. Itond for In an asreenient for llic -'^'"- ^■"'"'' "*' '''•'' .-'^'*'^ "" ""-""'liini'''. 'i^^^**- 
 
 -ilcnf liniils. where it « as st ipulated that when '-lil'lion or designation of the laud, it can have 
 
 thciaihl w.is surveyed, tjic plaintitl' shouM give "" ''"'■'•' l"'.vond the actual occupation or im- 
 
 tlie defendant a lioud for a deed, or a deed on provcmciit. , , . 
 
 /.'oi/i/ V. J/;//.//, ;{ N. .s. I)., •_".»•_». 
 
 liciiig scciii-cd the )iiir<'liase money, 
 
 //./,/. that the surv..y was not a e.iudition j^^ \Hm(!Hi\{ pipe ffherC a dCt'd Of rOUl 
 
 inecedent which would ].ievent the ,,laiutltr ,.,,;,„. „„s prepared and executed t.i give title 
 
 fniin recovering the consi,[eiation money. ^^^ ,. j^^^^ ,, j,,.,,.^, ^,, ,.,„„,,,,,i^. t|,^, ,,„,,.i,.,,.,., 
 
 .l/,„-.v, V //»../(,». Cochrau. til. ^^,^,1 ,„,„,,,|„^.„„y i-f, ^^ ,;, ,„„.,.|,a,i,,l H,,. r, al 
 
 estate, and liy agreement lietweeii the parties 
 
 S. Boundaries Deseriptlon Of III deed ,i„, ,ieed to 'k. was recorded simultaneously 
 
 Sii ItOlM)AlUKK. „j||,„,leed from It. to 11. iV: (;.,in action of 
 
 ejectment liv |iurciiaser at slieritl's sale under 
 
 !». Ceililloale Of atle.slalion Where a eer- iudgment recn. id against R. previously t<> the 
 
 titicate of the attestation of the execution of a ,.^,,.;„.,|i„j, „f (i.^, i,),,,,,. conveyances, 
 
 •'"■'1^ taiued uodate, //,/,/ ji,.,t |.. „,^J^ .^ |„^,,.j, eouduit l.ipe to 
 
 IhhI. that the .led was proiierly recorded in ^.,,„v,.y title from the veu.lois to H. & (J., and 
 
 llie Registry of Deeds ollice, the words of the ti,,^ ,'i„. j,„lj..,|KMit against him did not attach 
 
 l:2tli .sec. of c. 7!», R. S., re.iuiring the date of, ,„ ,1^, ,.^..ji ^^^,,.^,,, j,, ,,,n,.,ti,,„. 
 
 tlic attestation lieing merely directory. . ,)„.,„ ^. /,,/„,./,, •_> \\, ji^ (•., 400. 
 
 Where a certilieil cojiy of a deed was oU'ered 
 
 ill cvi.icii.c under sec." .'w of e. !ni, 4th R. ,s., 13. fonslnu'tlon of Meaning of temis - 
 
 witliiiut ail allidavit showing that the original ''"'n' terms " due north" ami "due south'" in 
 
 WHS not ill the possession, i\;c., of the Jtarty, liut t'"' description of a deed, if not eohtr(dled liy 
 
 tlicdcfciMlaiit. wh<i ollered the copy, was ex- accompanying words, mean north and .south liy 
 
 iiiiiiiied as a witness at the trial, ami proved t lie magnet, and not liy the meridian, 
 
 tliat the original was not in his posses.sion, »\:c.. W'iiere a jilan is attached to a grant or deed, 
 
 //'''/. that the certitied cojiy was luoperly and referred t<i in the usual terms, it is to lie 
 
 iweived. considered as incorporated with the instrument, 
 
 MiKi ir.il V. LdiDoiil, 2 R. &. ('., .">17. and nnist he construed along with it. 
 
 The description contained in a grant of lands 
 
 10. ('ertitieate of registration -Proof of - gave one of the honndaries as follows : "Theiiee 
 
 111 an action for lireiieli of covenant for title iilong shore to a point due north of a sniall 
 
 contaiiieil in a deed from defendant to plaintilF, pond v/.r chains from an old fort." This j>ond 
 
 iliejilaiutitr put in evidence a mortgage on which liy admeasurement shortly Iiefore trial was found 
 
 was iiidoised what purjiorted t<i lie a certilieate to lie at its eastern end iiiiii-, niid at its western 
 
 fit registration. The execution of the mortgage end ihnii eliains from the fort. 
 
 was proveil hut the eertiticate was not proved //(/(/, that this discrepancy must lie rejected 
 
 to have heen signed liy the proper otfieer, nor as falsa dimoiiKlrallo, and the pond lieing a 
 
 Wi8 it tendered as evidence inilepcndently of natural monument, its actual position should 
 
 the mortgage. control and correct the description in the deed. 
 
 Htlil, that, as the plaintiff had had no notice Airhihnhl et al. v. Morrimii, 1 N. S. 1)., 272. 
 
435 
 
 DEED. 
 
 m 
 
 14. Conveyance by insolvent of all his 17. Dereasanre Agreement not under 
 
 proj)erty for henetit of creditors Eti'eut iis seal may operate as a defeasance to a deed - 
 
 respects judgment subsequently recorded 
 Injunction to restrain sale under judgmenl- 
 
 ^ 111 ejcctiiu'iit, mIutv the plaintiD' clainifil iimlfr 
 a deed fi'oiii tlic dcfciidiint to lii« dccciiscd son, 
 
 Cloud on title Hi igciM it Co. , on the Kitli Miiy, mid it wiiMpinved I" liiivi- taki'ii the wliolc of the 
 
 ax.siKiK^d all tlifir iiidi\iiliial and partluT.sliip day of the date nf tlie ileed to wiilc it, it w.ih 
 
 pnipt'ily, liiitii leal and personal, to a trustee, pleaded tliat tlic coiisiileiatiim for tlieclcrd wasan 
 
 for the general liciielit of their cnilitors, and agreement entered into liy the defendant aiiilhin 
 
 exeuuted at the same time a ileed in trust to ' said son, ami liearing date a day later tliiiii 
 
 him of their lands, whii li was reeorded I'JtIi of the ileed, liy widi'h his said son, amoii;.'sl otlici' 
 
 May. Defendants t'liteied a judgment against things, liound himself to maintain and sii|i|Mii't 
 
 Rogers it ( 'o. on the l.'itii of May, which was I the defeiulant ami his wife during their lifetinio, 
 
 reeorded the next clay. On the ITtli of .May a otlu^rwisi' tlu' deed to lie null and void, aini that 
 
 writ of attaehinent was issued against Itogers said agreement had not lu'eii fulliUed. 
 
 \' Co., under the Iii.so'vent Aet of I.ST."), and in //i/d, a good eijuitalile defence, 
 
 dune, creditors' a.ssignees were appointed, to Jft/il, also, tiiat the deed and the agieciiiciit 
 
 M lioin the trustt'e sulisei|!,eiitly conveyed the had a coiitemjioraneous ell'ei.t, and the ii^rice- 
 
 lands, which were afterwards soM to lertain of ment, although not under .st'.il, acted as n 
 
 the plaintitl's, who conveyed to others of the defca.sance to the deed. 
 
 plaiiititl's in trust to secure the jiurchase money 
 to tlie creditors' assignees. Defendants |)ro- 
 ceecled to advertise and sell tlie land under 
 execution, and plaintill's sought to restrain them 
 liy injunction. 
 
 AtrUaii V. Afcl'ai , Cochiaii, 7li. 
 
 IH. Delivery, presumptive evidence of - 
 
 Defendant hoiight of one l>. iiis ec|iiily cif 
 recleinptioii in a portion of land suhjeit to a 
 
 //'A/, that as lietwcen the parties to it the mortgage to plaint ill' and delivered to .Mr. T., a 
 deed from Rogers ,\t Co. to the trustee was ; solicitor, a mortgage of the same to plaiiitill' lo 
 valid, and that it was open to ti:c creditors' | l>e lield as an escrow until the lands should hu 
 assignees, if they considered it for the lieiielit of \ released from the jilaintiir's tirsl mortgage. The; 
 the estate, to have tiie jiroiicrty conveyed to mortgage made liy defendant came into llie 
 them liy the trustee ; that the judgment eredi- possi^ssion of jilaint ill's solicitor liy some means, 
 tor never ol.tained any lien on the jiroperty although the condition as to tlie release of ihf 
 under Ills judgment; Imt that, although the Imid from the tirsl mortgage to jiliinlil!' wa.s 
 Court would restrain a judgment creditor from never fiillilled, the land having in fait liceii .-iiid 
 selling property even under a judgliient that under foreclosure of the first mortgage. I'laiii- 
 would convey no title to the purchaser, and tiir lirought action upon the covenants in defeii- 
 where the creditor only proposed to sell the daiit's mortgage and U)ton the accompaiiyiiig 
 right, title and interest of the judgment ^lid.tor, lioiid. 
 
 yet it was incumlicut on the plaintill's to show I'lie Court were eijiially divided upon the cpies- 
 that the cloud on their title was cau.sed iiy what i t'"" <'f 'lo'ii^nit- 
 
 was apparently a good title, though in fact Young, C. .1., and Wilkins, J., \vel■efor.settillJ,' 
 defective, and that in the present eiise defend- a.side the non-suit, hohlilig that, iiiider the almve 
 ants had not an apparently good title, as the circumstances, there was such a iiresiinipticm of 
 Hist deed from Rogers & Co. appeared to con- ''"' delivery of the mortgage and hoiid as to 
 vey the title. sustain the action. McDonald and Sniitli. .1.1., 
 
 Weatlieihe, J., roiirurriiitj, limited his opinion ''""'''«• 
 
 with reference to the effect of the deed from 
 Rogers it Co. to the trustee, to the ea.se of a 
 naked conveyance liy the insolvent for the liene- 
 fit of creditors. 
 
 Johns il fil. V. liarlitiiir <l til., ',\ R. it (!., \'.\ ; 
 
 'JC. L. T., ()(»:i. 
 
 1.1. Courses, distances, natural bound- 
 aries aet out in deed —Order in which they 
 govern — 
 
 &« BOIJNDAKIES, 13-15. 
 
 10. Deed of composition — .s'"^ ASSIGN- 
 MENT-COMPOSITION-INSOLVENT ACT. 
 
 Cniisirrll V. O'Coiiiinr, •_' R. it ('., •2Sl. 
 Sii iii/ni, '24, for decision on re-argument. 
 
 19. Demand of possession -Fraud Tlie 
 
 fact of the lessor of |ilaiiititl' having failed to 
 record his deed for seventeen years, tugelliw' 
 with acts and acknowledgements liy him incon- 
 sistent with his title, suliseipient to the iiiaking 
 of the deed to him, are evidence for the jmy 
 against its validity as a linuajiili' conveyance. 
 
 A defendant in possession, under an agreement 
 to purchase the land from a third party, may 
 defend his possession liy showing fr:uid in the 
 deed under which the lessor of plaintitt' cluinia. 
 
437 DEED. 438 
 
 WliiTf lln' ilcffiulaiit pii'M into poHHOHHion of iiinl resiiltt'il in the frontiij,'!' on the Ktict-t l^'in^j 
 
 l.'iiiil »H tcMiiiit at will luidrr a tliii'd pai'ty, liiit niucii less than that icpifxcnlcil. 
 u|Miii ilic invitation anil with the uoni.'nri'cni'i' llilil, that the nicaHiiiTnii'nts were men- niat- 
 
 iif jcssdi' of plaintiH', he '\n eiititleil to a ileniaml ter of description, ami that tliert' was no lireacii of 
 
 of iKwsesnioM liefore he can lie ejected. the covenant of seisin. 
 
 i^.^1l'l' of .\fi'h'iinioii V. Mr/)(wn/if, .lames, 7. AIiiidii it a/, v. Wuoilill, ti II. iV (i,, 1.1; 
 
 ()('. I., r., I. -IT. 
 
 I 
 
 20. Drsrription In deed Correction of 
 
 error.s in Sherill's deed Partition The plain 22. KltSCmcnt I'scr Of U wa}' tO Whicll 
 
 tiiriiiiiiiL.'lil suit for a jiartilion ot certain lands p.irty has no ley.il riylit, not Hutticient to 
 
 uiiilei' the foUowinj,' I'irciinistani'es : the dcfen- entitle to diimafjes for an ohHtrnction Refor- 
 
 (liinl and his liiother were devisees under theii' niation of deed Joinder of parties Damages 
 
 fiithci's will :)f a larj^'c liad of land which they - Notice -I'laintill' sonj,'lit to recover daniaj,'es 
 
 liilil iis tenants in conmion. They exccntecl two a),'ainsl ilefcndant for olistniclin;,' him in the 
 
 ninrt;.'iiL'<'s thereon, which were outstiuiding at use of a way adjoininj,' plaintiff's jiroperty, 
 
 till' lime of action iiroiif^dit. A judi,'nient was which he claiineil to enjoy liy virtue of user l>y 
 
 siii)sii|iicully olitained aiiaiust the luother, and himself and those under whom he claimed for a 
 
 iin ixiiMtion issued, under wliicli iiis undividecl period of forty years. Xo user, as claiuu'il, was 
 
 liiilf was oll'ercd for sale, and pui'chased hy jrroveil at the tiial, hut it ajipeared that )ilaintifl' 
 
 pliiiiititl', who riveived a ileed from the sheiitf. had no legal riyht to UHe tlie way as his own, 
 
 After the execution of the deed il was discover- nor any license! from the owner to do so. It 
 
 111 lliat tlic dt^scription therein, as well as in the was contended that, admitting,' tliis to he so, 
 
 (iilvcrtiscuiciit of the sale, was erroneous. The plaint iff lieiu;^ in possession of the way, or the 
 
 plaintilf .seekinj; jiartition tlu' defendant resist- user thereof, could maintain his action against 
 
 III. iUnl i)leaded. 1st, that tlie lirothci' was still defciidiint, who was in no lietter ])osition for 
 
 in possession adversely to the plaint ill', and that interrupting him in the u.scr. 
 
 the latter, therefore, could not maintain an //«A/, that the mere user hy i>laintitf of the 
 
 aiition for partition, not having the possession ; way in connnon with otiier parties, in theah.sence 
 
 ami '.'nil, that plaintiff oiightiiot to have parti- of any legal light, would not enable him to 
 
 tidii, iiiasiuuih as ids application, if granteil, recover damages against defeliilant for ohstriict- 
 
 wiiiilil 1 Illy nugatory and iiioj)erative, and iuglhcway. 
 
 siilijeit clcfcndaiit to costs. The learned .ludge who presided at the trial 
 
 //'''/. that the sheriff's deed gave siillicient was of o])inii>n that one of the decils on wiiich 
 
 seisin fur a proceeding of paililion; that on the jilaintitf relied should lie reformed, liecaiise there 
 
 tiiiil llie title of the judgment lU'litor might lie w.is evidence that the grantee had hought and 
 
 iiivi'sligated ; tiiat the eirors in tin; description paid for the right of way, though no reference 
 
 iiiiijil lie coriei'ted hy i-eference to the other to it was made in the deed. 
 
 p'litiiuis (if the desi.-iiption ; and that the out- ■ //</'/, tliat the reforiuiition could not he made 
 
 stuniliiig mortgages were no liar to plaintiff without joining the grantor and grantee under 
 
 olitainiiig the partition sought. tl'" deed, and perha|>s others, and that evisn if 
 
 llie Siii>reme Court of N'ova .Scotia posses.seH the reformation waseffected, it could not sustain 
 
 all tile pnwers with reference to suits in par- a verdict for damages committed hefoie the deed 
 
 titidii with whiciitiie Kciuity Court in Kngland was reformed and without notice of any agree- 
 
 is invested. ment as to the right of way. 
 
 L'<'niii V. Jf„sf, , -1111111, •_' N. S. ])., 4i:i. /;//.< v. Ji/n<l\ 7 U. & (i., -'•J'-'; 
 
 7C. L. T., ;«ti. 
 
 '21. Description of land by boundaries -~ O" npp'n/ lolhr fnjn-nn, Com-I oi Cunwla, 
 
 Inaccuracy of measurement ^Falsa demons- //,/,/, afhrming the judgment helow, Ritchie, 
 
 tratio Covenant of seisin -.\ h,t of land, C. .J., and (Jwynne, .1. ,.//..<,«//»;/, that as plain- 
 
 omveycl hy defendant to j)laintitr hy way of tiff had no grant or conveyance of the right of 
 
 ""iitgage, was ileserihed as hounded hy lan.ls of way, and had not proved'an exclusive user, he 
 
 A. aiiill',., whii.l, had heenineviously conveyed ,;„„l,l not maintain his action, 
 
 t" tlicMi, heing originally parts of the same lot. j.^,, ,._ pj„,^.^ ,^ s. C. R., 740; 
 
 llie iiiicH of the lot conveyed to plaintitt' were -^ j^ '|' ;j()()_ 
 <lt'.scrihe(l l,y measurement, hut the termini 
 
 wt-'ie stilted irrespectively of the measurement 23. ECiUitable defence PlaintilT, In eJCCt- 
 
 tluis, "•_).-,() fujjt^ „,. „mii jj^ oonies to the ment, claimed title under a deed from his father, 
 
 property of JJ." The measurements were wrong, Defendant claimed under an unregistered agree- 
 
4:{!) DKKl). 4+0 
 
 liu'lit fi r a Iwi'iity yt'ai's' lease prinr to the ileed »ii iinloisecl at tlie lime of the exeetilimi nf t|n. 
 
 of uhieh he alle^'il pliiilltiH' hail iiotiii'. 'I'he deeil eaiiiiot, even if ioii»i.stelil tlieiewith, he 
 
 ileeil was I'eeoiih'd. lead as if iiieoi'ixii'ated with it, 
 
 llild, that the defence, if ^'ood, was an ei|uit- McDoinild v. IVo'ih, ,'{ \. S. 1)., '.".IS. 
 
 aliU' cU'feiu'e oidy, and louid only lie pleaded as 
 
 siieh. 20. Execution of, by master - 
 
 /A.;/;/ V. .s7(m/,/, .-. I!, .^c <;., »!tO. //,/,/, ,|,a, nnder section •_»•.>, of ea|). l(l0.4liiR, 
 
 .,, „ 1, 1 1 <• > II n S., the .ludL'e in Kciiiitv was wariaiiteil ill (Milcr- 
 
 21. Escrow Evidence or delivery De- . ' , . ^^ ' . i 
 
 . , , , . ,, , r illL' that in ease a iiartv to a siihiiilssioii In iin 
 
 tendaiit a'Teed to liliiehase trolii one 15. a lot ot ?• • ,1 i , ... 
 
 , , ,. . , ai'liitlalion retiised to exeeuteaiU'ed |-e(|iii>ilc lor 
 
 land snii ('el to a inoitL'aL'e of .>(i(NH(. executed . , , . ,,. , , ,, 
 
 , ,, ', .. , . .,' , , canvini' the award mto elli'ct, th(^ same sIkjuM 
 
 liy IS, and wile to nlaintill, and a second molt- , " ' ,, <■ , ,, 
 
 , . . ,. , , he executed liv a master ot the ( ourt. 
 
 j,'a;,'o to other parties, paying' oil the .second • j ii ■ , o tj t r' m 
 
 , . , III r< r rn^i r iiiiil I rtiiif, 'i K. fi ( ., 10; 
 
 niortgujie and execiitiim a new inortj;aj;e to the r i% •■ i -.)- 
 
 plaintirt' in lieu of the mortjiajic from Ii. and m ife. 
 
 The defen.lant-s wife refused to execute the .jl. FrilUd - WIUTe il piirty ObtilillS ail 
 
 proposed mort^'a,i.'e to plaintili'. and it was ..Male in fraud the Couit of Chancery will not 
 
 si;,'lie.l and sealed hy the d.'lVmhuil and placeil, ,,|,iy ^,,, „sj,le the conveyance, l.Ut direct a y.\W 
 
 toiiether with a hond for tlic amount, in the ,,, "t),,. property to .sitisfy the claim of parties 
 
 hands of defendant's solicitor to he delivi'red to ,.||iii(;il,lv interested. 
 
 the plaint ill' so soon as the moit,L'ajj;e given l.y i \,/,hr, // , / ,il. v. A'/»v,„a,( ./'(/., daiia-^, .MIS. 
 
 I), was released, and the new mortguge hy 
 
 fen, lain was sigiwd hy his wife. The .locu- 2S. Fnuid of crcdllors EvIdeiKT of 
 
 cIC 
 
 nieiits afterwards came into the possession of fraud Statute of Elizabeth T. I.. ( ausid a 
 
 the i)h\intilV, hut defemlaiit's .solicitor stateil dce<l of certain real estati' to he mailc M ii 
 
 that he had never heen alithori/eil to deliver trustee for the henelit of his wife. The litlcdl 
 
 them (Pii any othi'i' teiins than those mintioned, the real estate was in his son \V. I'. L.. hy hIhhii 
 
 and he could not recollect wlieii, how or where the deed was made, luit it was proved that 
 
 plaintitl's solicitor had got them. The original although the propiMty was purihased. ami lliu 
 
 mortgage niii<le hy r.. and wife was forecloseil, consideration money paiil hy W. F. L.. ulm 
 
 ami the lauil hought in for less than the amoiinl was then a minor, yet his father had ciiru.l 
 
 of the mortgage hy the jilaintill'. who then part of a douhle house on the property willi tlif 
 
 hrought his action on the covenant for ))ayment consent of his sou, and that the ileed fnnii tlii' 
 
 in defendant's mortgage with a count on tin- latter to the trustee was maile with the fatlni." 
 
 hond. I'laintill' on the trial produced his docii- concurrence. At the time of the eoi vcyaiar in 
 
 meiits. and defendant was not examined to rehul trust. T. L. was indehted to the plainlills, an.l 
 
 the presumption of delivery. The learned Judge li'id heen '• going hehimldiaud " for some tiinr. 
 
 direeteil a nonsuit. There was no fonsidcration for the trust ileeil, 
 
 //</(/, that there was nf> evidence to go to a //</'/, that the trust deed had the etl'ert nf 
 
 jury of a delivery of the (hicunieiits declared "delaying and hindering " creditors within tin; 
 
 on sufficient to make them ojicrative as deeds, .Statute of Klizaheth and was consci(Uently void, 
 
 they having heen ilclivere<l in the first instance />o»// (t al. v. l/mloii .7 ri/., (i I!. i\; <;., .'IS; 
 
 as escrows. iW. L. I., o'.'. 
 
 dames, ■!., (//v.sv //////./. Ifi/d, ih-.n the fact of ,„ „ , , ^ „ ,, 
 
 ,,,,,,.., , ,, 2J>. Fraudulent conveyance Evidence 
 
 the documents heiii'' in the iiossession ot the ... , . , , , 
 jilaintitf was presumptive jiroof of their delivery 
 
 Defendant, heing indehted to variiais ]iaitus, 
 iiid fearing lest his creditors should resort ti) his 
 
 as deeds, and the hurdeii was upon ileteudant to , i n i ■ 
 
 , , , , , 1,1. 1 iJi'onerty to ohtain i)avment, conveyeil all His 
 
 show that thev had never heen delivered as ,' , "^ , . , ' •, , „ , " , i » 
 
 such. , . , 1 1 . <. 1 
 
 Chi.-cw.// v. (rCoiiiior, I K. * «;., MX t'"-' ''•'""^ t""« ''^' "'"' ''"" f"""'y ^vfie to c 
 
 land to his sou, the other defendant, while at 
 
 on- 
 
 tinuc to enjoy the henetit of it. In their aii.'Wtr 
 
 25. Estoppel — Ambiguity — Memorandum the defendants alleged a deht due hy the father 
 
 indoraed on deed- -In an aetion to recover con- to the son, and an agreement hy the latter to 
 
 sideration money expressed in a deed if estoppel support hits father, hut the defendants nave no 
 
 is relied ujion, it must ho jilcaded. evidence. 
 
 Where a ileed is free from amhigiiitj' it /A /rf, that the answer of the defendants coiiM 
 
 neither ilemands nor will admit extrinsic aid to not he used as evidence at the hearing, and that 
 
 construction, hut must sjjeak for itself. plaintiH', as creditor of the father, had a right 
 
 A memorandum indorsed uj)on a deed, hnt to a decree to set aside the deed, 
 
 not distinctly proved or admitted to have been Xtuxomh y. Simmomln tt at., R. K. l).)-iS4. 
 
441 
 
 DEED. 
 
 442 
 
 ;iO. Friiiidiilent iMMiveynnce Evidence 
 
 of fraud Findingn of jury W. .1. ('., luinj,' 
 iiiililiicil 111 ]iliuiititl', WHS Hiicil Novi'iiilicr, iStiT, 
 mill jiiil;,'iMi'iii iccdviTfcl for .'r> "J! •.'(.. Vi a ilncket of 
 wiiicli was regiMteroil ()utol)t'r, Istis. Kxeuiitioii 
 uas isMicil on tlu- jiul^fincnt, iiiiil the liuiil of tliu 
 jiiiiil W. .1. ( '. «as liouglil in liy pluintitf nniliT 
 SliiTilVn sale. In Miiy, IStiti, W. .I.C, 1 icing so 
 inili'litcil, I'linvcyt'il iill iiis ival I'stute (foinnl to 
 Imvf lii'iMi llii'ii wortli 8.S.")(l), to liiu son, tin; 
 jiiiscnt ilifiiiiiaiit. tlu' lonsiiiciiition iiiinu'il in 
 tiic iliTil lii'ing s;UM», anil lliis suit was liiouglif 
 tii.xot asiiji' till' lU't'il as frainlnicnt. Tliu jiny 
 fipiiiiil lliiit \\'..l. ('. was in possi'ssion of tlielaml 
 111 lliL' liiiif lit' gave the lU-i-il to dcfi'iidant, ami 
 iiii.timu'd so foi' foul' years afterwuids, to May, 
 ISjii; that lie was in ])ossi'ssion at tlif tinii' of tiu^ 
 Slu'i'iirssale to)ili<.intill', and at tliat time resiik'd 
 in tliL' old honii'stead; that defendant was in 
 Jlll^^(■^^^illn. exilusive of \V. .1. t'., from May 
 l.sT'i. iimUr title of the conveyance from \\ . .1. 
 ('. : that theie was no money paid liy the defen- 
 dant at the time the deed was given, except two 
 Kfty dollar notes of hand ; that defendant knew 
 at the time he got the deed, that \V. J. V. was 
 inilt'lited to ])Iaintill'; ami tliat the deed was 
 given liy W. .1. C, and received liy the defen- 
 ilant, til prevent or ini]iede jilaintitf and other 
 eriilitnrs iif \V. .1. (". in olitaining payment of 
 their ilelits. 
 
 JIil'l. that under the tindings of the jury, 
 wliieli the Court considered warranted by the 
 evidence, the deed from W. d. (". to defendant 
 must he set aside as fraudulent. 
 
 Corh>// V. Ci>ih,ft, It. K. I)., 40. 
 
 31. Fraudulent conre) nnec Findings 
 
 Contemplation of insolveney — Injunction — 
 One R. '1". Muir, who died 4th Septendier, 1 S7 1 , l>y 
 his will, lieiiueathed his liusiness, including stock 
 ui trade, iVc, to A. !•'. Muir, on certain condi- 
 tions, among which was the payment or guaran- 
 tet'ing til defendants, as trustees for his two 
 sisters, the sum of !S4,(KM» each, for which they 
 Were to take security ui)on the stock in trade if 
 tlity saw necessary, within a eonvenient time 
 after the deatli of the testator; and it was 
 nisi) |iriiviile<l l>y the will that a sum of !«2,<H)0 
 sliiinid he i)aid or .secured to the defeiidant.s per- 
 sonally. A. F. Muir continued t.ading, collect- 
 uig the debts of the concern, and disposing of 
 the stock, the money jiayaldc to the defendants 
 on their own account aiul as trustees )>eing left 
 in the husiness without security being taken. 
 On the 5th April, 1875, A. ¥. Muir conveyed 
 his stock, then worth about .^60,(MK», to the de- 
 fendants as security for the payment of the said 
 sums, together with a further sum alleged to be 
 due to one of the defendants from the estate of 
 
 K. 'I'. Muir, and on the I5tli of duiu', 1.S75, 
 tlefendants took possesidon of the stock and 
 proceeded to stdl it, shortly after which, on the 
 .'{((til .lime, A. V, .Muir made an ;issignnient 
 under the Insolvent .Act. I'laintitV, as assignee, 
 brought this action to set aside thi' conveyance 
 to defendants, alleging in his wiit that the con- 
 veyance had been made to give the defendants 
 a preference over other creditors, and that the 
 defendants knew, or had reasonable cause to 
 know and believe, that A. V. .Muir was unable 
 to meet his liabilities. Defendants, in their 
 answer, ilenied that A. K. .Miiir was insolvt'iit 
 when he made the conveyance to them, and 
 asserted that when they received it they ludieved 
 him to be sidveiit. They ilenied all frauil on 
 their part in the transaction, and asserted that 
 they deinaiided the security in pursiianee of the 
 directions of the w ill of 1!. T. Muir. 
 
 The jury found that, at the time of the con- 
 veyance being inaile, .\. \'\ .Muir was embarrassed 
 and unable to meet his engagements; that de- 
 fendants <lid not then know, and had not reason- 
 able cause to know, that such inability existed ; 
 that the conveyance was not made by A. 1'". .Muir 
 with intent fraudulently to diday or impede his 
 cicditors, and that the original stoidi haii been 
 all di.sposed of, except al)out ii^UMX) worth of 
 machinery. 
 
 //'/'/, that under the tindings of the jury the 
 conveyance must .stand, and that it was not 
 competent for the iilaintitl' to contend that, even 
 in the absence of knowledge on the part of the 
 defendants, the conveyance should be set aside, 
 as made by A. V. Muir in coiitein|)lation of in- 
 solvency, and in violation of section S'J of Insol- 
 vent At:t, that being a ditferent cause of action 
 from any set out in the writ. 
 
 I'laintitl' having obtained an injunction to res- 
 train the defendants from disposing of the stock, 
 the t'ourt directed that the amount for which 
 defendants chiimed a lien, with i^KiOfor ])o.ssible 
 costs, should be deposited with the Iteceiver- 
 (leneral to respond the judgment, if favorable 
 to the defendant.!, in which case the injunction 
 shoiihl eontinuc, otherwise to be dissolved. 
 
 Fom-'l V. Mnii-iiitl., R. K. 1)., .")7. 
 
 32. Fraudulent conveyance— Want of 
 
 consideration — In 1844 Alexander, the father 
 of Hugh and Archibald, c<mveyed certain 
 premises to Hugh upon the consideration 
 of a bond for his maintenance given by Hugh. 
 All three continued to live upon and work 
 the premises together. In January 1863, the 
 plaintiff issued a writ against Hugh, which 
 ripened into a judgment in October, 1804. 
 In' June, 1864, Hugh conveyed to Archibald, 
 the consideration being stated at the trial to 
 
44.'} 
 
 DEED. 
 
 444 
 
 be a voildil iiyii'fiiiciit that Ai'lIijImM kIiouIiI 
 aHHUiiic till' l)unlt!ii (if inaiiilaining lliu fatlicr aH 
 Hugli «i>liril to go away. In IStUl, itliiiiititl' 
 olitaiiK'il a jiiil^'riiuiit agaiiiNt AlexaniltT tlio 
 fatliiT, and in IMdltcxcciitions woro is.sucil upon 
 liolh juiljiniunis. 'I'lio landx wt'iu luviud upon liy 
 tliu Nlii'i'itI' and sold tliui'i'under and a deeil 
 I'xci'utcd liy liini to tin- plaintitl', ulio tlu'ieupon 
 lii-ouglit an action ot eji'i'tiru'iit against tin; 
 father and two ; muh, and verdiit was found for 
 the defendants. I'pim I'uU: iiini for a new tiial, 
 l/i/il, that Ilugii's titU', whatever it niiglit 
 have been wortli at its ineeption, liad heeonie 
 valid in IMIKi, the time of tiie plainlill's judg- 
 ment against tiie fathei', tint theconveyanee from 
 Hugh to Arehiliald having lieen executed .sul)se- 
 quent to the seiviee of plaintill'.s writ ui)on the 
 former, and while the action was pending, and 
 not being supported liy any valuable consider- 
 ation, must be deemed to be a fraud on Hugh's 
 creditors and void under l.'J Kli/., c. 5, and that 
 tlierefore the nde iiiil shouhl be n\ade absolute. 
 Smith V. MiLiau it uL, 3 X. S. D., 109. 
 
 33. Fraudulent Conveyance -Assignment 
 
 under Insolvent Debtor's Act- An action was 
 brought against one of the defendants, the son 
 of tiie other ilcfcndant, for breach of promise of 
 marriage, in which a judgment was recovered 
 and reeorde<l. Previously to the commencement 
 of such action, the son had paid for and obtained a 
 deedof certain land which was not recorded, and 
 it was illcgedin jdaintiirs writ or bill that fearing 
 an adverse judgment in the breach of piomisesuit, 
 the son haddestioyed tlieold deed and procured 
 u deed of the jjroperty to be made to his father 
 whicli was ante-dated so as to nuike it appear 
 to have been delivered before the commencement 
 of the action for breach of promise, althougli, 
 in fact, it was made afterwards. On being 
 imprisoned under the jiulgment in the breach of 
 promise suit, defendant, the son, was set at 
 liberty on condition of his assigning his interest 
 in the property to the plaintili' in this action as 
 trustee for the plaintiff in the breach of 
 proniise suit, which he did. A suit in Equity 
 was then brought, in which plaintiff prayed 
 that the defendant, the father, should be decreed 
 to convey the land in (question to him wul 
 account for the profits. Tlie Equity Judge, 
 considering that the destruction of the old deed 
 and substitution of the new one was a contriv- 
 ance between the father and son, granted the 
 relief prayed for, and the full Court having 
 arrived at the same conclusion on the facts, 
 affirmed the decision of the Judge in Equity. 
 Graham v. Chinholvi e< a/., 2 R. & G., 33 ; 
 
 1 C. L. T., 191. 
 
 34. Fraudulent deed - 13 Eliz., C. 3 - 
 
 Replevin -I'laintitl's father leased certain iniii' 
 ing aieas, witli crushing mill and crusher, td.l, 
 k T. Watson, in Xovember, lS7r>, with proviso 
 for re-entry on certain conditions. In Decuiii- 
 ber, liSTd, he eonveyeil all his estate, inchnliiig 
 all his interest in the lease and the lease itsilf 
 to |ilainti(r in trust for certain purposes in the 
 deed mentioned, and the trustee took possussiim 
 in February, 1879, for non-payment of runt 
 overdue. In October, 1S7S, a distress warrant 
 for poor and county rat js was issued against the 
 lessor, under which the property in quest jcm 
 was sold aiul came into possession of defendant, 
 from whom it was replevied by jilaintitl'. Oli- 
 jection was taken to the want of rcgistratiun 
 of the lease, and that the trust deed was 
 ' not filed, but only recorded. There was no 
 , legal proof of the assessment, of .he posting or 
 service of notice, or of the signature or oIKciui 
 character of the ofKcer who issued tiie warrant, 
 all of which were put in issue by the iileailiiigs, 
 but evidence was given by defendant of coiiver- 
 sations with plaintitl's fallier after he had parted 
 with his legal interest in tlie property. 
 
 Held, that the statute 13 Elizabetli did not 
 refer to the case at all, as it niaile the convey- 
 ances to which it referred void only as against 
 certain classes of persons, none of which conlil 
 cover the case of the defendant, and tlmt 
 the conveyance could be avoided at com- 
 mon law only as against one who had a 
 former right, title or interest, which defeiulant 
 had not; that the non -registration of the lease did 
 I not affect the plaintiff's position at all, or if fit 
 I all, it only enlarged his interest ; that the trust 
 '■ deed did not require to be filed, but only re- 
 I corded, and that the evidence of defendant 
 ' referred to was inadmissible, not being part of 
 the rcn (/I'stw. 
 
 Wallace v. Laidlaw, 2 R. & G., 420. 
 
 35. Infant— Deed by, voidable - Statute of 
 
 Limitations— R. M., in 18.35, conveyed a portion 
 of his land to his sons, W. and K., and about 
 the same time allowed them to enter into pos- 
 session as tenants at will of the balance of his 
 property, ini'luding the house in which lie 
 I had resided. R. M. died in 1844, leaving 
 I several children, of whom the plaintiff was the 
 youngest. In 1847 the rest of the heirs, includ- 
 ing plaintiff, who was then under age, conveyed 
 to W. & K. oil their interest in the property. 
 In 1870 the plaintiflf brought suit for a portion 
 of the lands in question, alleging that the deed 
 being executed during her minority was abso- 
 lutely void and of no effect. 
 
 Held, that although the possession of W. cfe 
 
445 
 
 DEED. 
 
 44G 
 
 K. imiNt lie (l"i'iiu'(l to lie advt'iHe from tlic year 
 |H47 »li('ii the liL'ii'H uniti'il in f{iviiig thcni n 
 il.iil, iiiid lliul tliorufon.' |ilaiiititt"H right was 
 liiuiiil on timt gi'oiinil, yet tiiat uiuler nee. it, of 
 •JO \'ii'., riip. I'J, liaviiig iii'oiight her action in 
 1H70, ami tlierefore witiiin tive years from 18(l((, 
 slit' wan entitled to leeover. 
 
 M'-Kliiiioii it al. V. Itroilii, 3 X. S. I)., 410. 
 
 3(1. Iiinint Deed to Adverse possession 
 
 — DelVnclaiit agreed in IS(I'2 to exeliuiigo land 
 with .1. I., and \V. L. He deeded certain lands 
 to tlieiii, Imt iii.stead of takini; a deed from them 
 t(i liiiiiself, he had the deed made out in favor of 
 lii.s infant son, H. F. J. This deed was recorded 
 on the day of its execiitifin, though the grantee, 
 K. F. .1., «as not present at the execution, and 
 there was no evidence that it was ever delivered 
 t(i liiiii ]icrsonull)'. Defendant went into pos- 
 Sfs.-iidn at onco, and continued in po.ssession 
 initil action lirought. R. F. J. shortly after 
 coming of age, in 187'>, executed a deed of the 
 land to plaintitf, who, after making demand of 
 pd.sscssiiiM.hroiight an action of ejectment uguinst 
 (k-l'ciiilaiit. 
 
 Ill III, that the deed to R. F. J. conveyed 
 title to liiiii, and that the non-suit ordered on 
 the giiiund that R. F. J. was out of po.-isession 
 wlieii he deeded the land, defen(hint holding 
 ailvcr.sely, could not lie su.stained. Wilkins, J., 
 di^xinliiiij. 
 
 (•'amnion v. Joibry, 2 R. k C, 314. 
 
 Questioned in MfDoumll at al. v. McManter, 
 3R. &(;.,37'2. See infra, 3Q. \ 
 
 37. Livery not necessary — Delivery of 
 
 deed gives constructive posseaaion — Actual 
 livery is not necessary in this Province. Where 
 there is no adverse possession against the vendor 
 at time of sale, the delivery of the deed carries 
 with it constructive possession of the land to 
 the purchaser. 
 
 SImpxou V. Foote, 2 Thorn., 240. 
 
 38. lost, proof of — Wbere a deed bas 
 
 been traced into the actual possession of a party, 
 it is necessary to call him to account for it before 
 secondary evidence can be let in ; but where 
 douht exists as to whether it was actually left 
 with a party who has no interest in it, held 
 sutlicient to prove a search amongst the papers 
 of the person who it was presumed last had ' 
 possession of it. 
 
 Barto V. Morris, Cochran, 90. 
 
 39. Missing deed- Secondary evidence of 
 
 —The question on an action of ejectment turned 
 on the execution of a deed from one H. M. to 
 R. M. Plaintifif produced no other evidence to 
 
 the jury than the certitied copy of the Registry, 
 j under Revised Statutes, cap, 1)U, sec, 33 ; and 
 the grantee swore that he had never seen the 
 deed fi'om his father. The iluilge who tried the 
 cause left it to the jury to find, from the regis- 
 try na /irlma J'avit evidence, that the deed had 
 been executed. 
 
 //'/(/, that this was a misdirection, and that 
 
 there was no evidence of the delivery of the 
 
 deed. Oamiiioii v. Joilny, '2 R. & C, 314, 
 
 (juestioned. 
 
 MrDoiuiill tt al. V. MiMastir, 3 R. & <!., 372. 
 
 10. Missing deed Evidence of execution 
 
 and delivery of -Certiticate of Registrar of 
 deeds— Affidavit ofsearch — Estoppel — Action 
 of ejectuieiit. 'I'he action was twice tried. 
 I'laintitl's, executors of original plaintitt', claimed 
 title under a deed dated the IMth June, KSr)tJ, 
 which Hugh McMaster, deceased, the former 
 owner of the land in (|Uestion, was alleged to 
 have executed, convejing said land to his son, 
 Ronald Mc.Master vlio, onthe l!)th April, 18(i9, 
 mortgaged to tli. original plaintiff. This mort- 
 gage having been foreclosed, the land was pur- 
 chased by the mortgagee at Sheriff's sale. At 
 the trial plaintiff's counsel tendered a copy of 
 the deed of the 18th June, 18")0, certitied to be 
 a true copy by the Registrar of Deeds, and ac- 
 companied by an aliidavit of one of the plaintiffs 
 to the etfeet ; "Tiiat tlie original deed, of which 
 the paper writing hereunto annexed, nuirkcd A, 
 is a cojiy, certified under the hand of the late 
 Registrar of Deeds, in and for the said County 
 of Inverness, is not in my or my co-plaintiff 's 
 possession, or under our control ; and I further 
 say that we have inquired for, and been unable 
 to jirocure, the same." 
 
 Donald McMaster, a son of the original owner, 
 and one of the witnesses to the deed, gave the 
 following evidence : — 
 
 " I went to the Registry of Deeds ofKce and 
 proved the deed from my father, Hugh Mc- 
 Master, to Ronald McMaster, his son. It was 
 registered 17th June, 1856. I took the deed to 
 the Registry Office, and left it there. 
 I am not aware of Ronald's knowledge of the 
 deed from my father." 
 
 Ronald swore that he never saw the deed, and 
 never heard of it until a few years before the 
 first trial, in October, 1880. 
 
 It was agreed that plaintiff should become 
 non-suited, with leave to move to set the non- 
 suit aside, and in case the Court should think 
 the non-suit wrong, the Court to enter a verdict 
 for plaintiff. 
 
 The Supreme Court of Nova Scotia (McDon- 
 ald, C. J., and Rigby, Smith and Weatherbe, 
 JJ.) were divided— Rigby and Weatherbe, JJ., 
 
4+7 
 
 DEED. 
 
 448 
 
 being of opiiiinu that the presuiui)tion wii.s tliiit 
 Hugh .McMiistei', the original owner, iiaviiig 
 signed tlie ileed, delivered it to Donald to take 
 to the Registry Office to he proved and regis- 
 tered ; that by this registration he gave notice 
 to all the world that he had eouveyed the land 
 to Ronald, and tliat tliere was evidence for a 
 jm'y ; that hy his coiuluct in relation to the con- 
 veyance to Ronald he had induced the original 
 plaintirt' to accept the mortgage from Ronald, 
 believing tlie title to lie vested in Ronald, by 
 virtue of the deed. Therefore the defendant, 
 wlio also claimed through his father, was estoj)- 
 ped from denying the tlue execution of the deed. 
 
 McDonald, C. .)., and JSniith, J., were of 
 opinion there was not sufficient evidence of the 
 i;xecution of the deed. 
 
 Jli'JJoiiahl it al. V. JltJla-'iter if at., 
 
 5 R. & (i., 438. 
 
 On appeal to //it Siijirime Convl of Canada, 
 
 Ihld, tliat there was sufficient evidence to 
 establish the due execution and delivery of the 
 deed to Ronald. The copy having been received 
 in evidence without objection, it was too late to 
 object to its admissibility. 
 
 Strong, J., ihdnlauU. Appeal allowed with 
 costs, and serdict directed to be entered for 
 plaintiff. 
 
 McDonM v. McMasler, ..'..'ml Junr, 7AS'.7, 
 
 ('as. Digest, 141. 
 
 41. Mistake - KectiHcation of deed — 
 
 I'laintift' instructed his broliier to purchase 
 certain land for him, the deed to be taken in 
 the brotlier's name, but in trust for the plaintifi' 
 for life, after his death for his childien, and in 
 case of his death and tlie death of his children, 
 in trust for his wife. The land was purchased 
 and plaintiff paid the amount of the piircliase 
 money, but the deed was made out to the 
 brother in trust to pay tlie proceeils to plaiiititl's 
 son, then living, and in tlie event of his death 
 to other sons, etc. Plaintiff went into posses- 
 sion and lived on the premises without any 
 intimation that he had not a right to do so, and 
 di<l not discover the omission of the trust for his 
 own life till after the death of his brother, being 
 an illiterate man and not having ever learned 
 the contents of the deed. His evidence as to 
 tile intention was uncorroborated and uncontra- 
 dicted. 
 
 Held, that the plaintiff was entitled to have 
 the deed rectified. 
 
 Hot/an V. Iloi/an, R. E. U., 334. 
 
 42. Mortgagee— Deed made by with con> 
 
 sent of morgagor, estops mortgagor from 
 redeeming — Plaintiff's father mortgaged a lot 
 of land to defendant, and subsequently defend- 
 
 ant, with tlie consent ami l)y the diiectinn df 
 the fatlier conveyed the lot in fee simple tu 
 X. .M. After tlie death of the father, iilaimilV 
 ))roiiglit suit, under liis will, against defeniluin 
 for the land. 
 
 Ifilil, that the father, by consenting to tlu' 
 conveyance of the land in fee simple to X. .M. 
 was estopiied from ledeeming it, and as pliiiiititi' 
 was in no better jiosition than her fatlicr, jmlg. 
 nicnt should be for defendant. 
 
 Ml- Li oil V. Cantjihi//, 3 X. S. 1)., 4.11). 
 
 43. Party out of possession conveys no 
 
 title — Where the lessor of the plaintitl'was oiu 
 of [lossession at the time the deed was given Ity 
 him, the land lieiug held adversely by aiiiitiim' 
 person, 
 
 //i/d, that the deed conveyed no title. 
 
 Maiji^tti If al. V. Huhirf, '2 'I'lioin., 4'3). 
 
 44. Plan annexed to -Particulars in, re 
 
 garded as set out in deed— Effect of possession 
 as against party not showing title— Wlicii a 
 plan is referred to in a deed as part of tlie des- 
 cription, all the particuhirs appearing on that 
 j)lan are to be regarded as if they had liciii 
 fully set out in the deed. In uii action iiw 
 trespass to lands, plaintiff relied on a grant fnuii 
 the Crown to 15., a conveyance from l>. to M., 
 and a conveyance from M. to the jilaiiitill'. The 
 gi'ant to B., read in connection with a pluii 
 annexed thereto, covered the h)cus, but in the 
 subsefjuent conveyances no mention of the plan 
 was made, although the description was tho 
 same as that in the grant. I'laiutitl's cviiUnce 
 showed that .M., to whom the property was con- 
 veyed liy the original grantee, erected a fjiit'o 
 including the locus, and ciillivatcil the hind, 
 and that the po.ssession iiad lieen continued hy 
 plaintiff and his tenants down to the coiiinicnee- 
 nient of the action. 
 
 Jfi/d, that the evidence was sutiicieiit as 
 against the defendants, who showed no title. 
 
 McDonald, C J., dini^nnfi'mj. 
 Futlirfon v. Jinindi'ii' it al , '.'O X. S, R., 
 
 (S H. & <;.), 182; 8('. L. T., .S7S. 
 
 45. Presumption arising from date of- 
 
 Evidence to rebut presumption — Defendant 
 distrained, on the "i.^th March, for a (inarter':! 
 rent due by plaintiff, w'lio brought an action of 
 replevin, and put in evidence a ileed from de- 
 fendant to one Walsh, conveying away the 
 reversion, dated March 1st. The grantee in 
 ihf deed, called by plaintiff, proved that the 
 deed was not delivered for some days, perhaps 
 a fortnight or a month, after the date it bore; 
 and defendant said she did not know on what 
 date she signed the deed ; that it was some 
 
449 
 
 DEED. 
 
 450 
 
 weeks after the 1st of Marcli ; tliat the grantee 
 hiid mtt on tliu i.'Hli Marcli got posiiessiun, anil 
 the |)lnintit!' was still her tenant. 
 
 Ill Id, that the presumption arising from the 
 (lute of tlie ileeil l.ad been rebutted, and ii was 
 tlie ihity of the plaintiff to establish the fact of 
 the delivery of the deed before the date of the 
 distress, to the satisfaction of the Judge, who 
 tried the cause without a jury, and that as he 
 had not done so, the verdict for defendant could 
 not he disturlieil. 
 
 Weatherbe, .J., doulitiiiij. 
 
 Miaijhhr v. Colt man, 1 R. & G., 271. 
 
 4G. Priority of, as affected by notice — 
 
 One Hazel, on the 19th Au;.'ust, 1809, executed 
 ii deed to plaintiff of a certain lot of laud, and, 
 oil the 24tli, i'.nother deed of a second lot, both 
 of which deeds plaintiff had recorded on the 
 •i'ltii. Oil the 3rd May previous, Hazel had 
 given a deed of the same two lots to defendant, 
 which, however, was not recorded by him until 
 after jdaintifl's deeds. Plaintiff had notice of 
 this deed when he received his second deed, but 
 not when he received the first. The jury found 
 tliiit the deeds to plaintiff were bona Jide and 
 for good consideration ; whereas the deed to 
 defendant was made for the purpose of defraud- 
 ing Hazel's creditors. 
 
 Held, tliat under these findings plaintiff must 
 succeed, his knowledge of the existence of defen- 
 dant's deed at the time he received his second 
 deed having no effect upon his title, as that 
 deed was fraudulent. 
 
 FiMiiKj v. Acktrly, 2 N. S. D., 526. 
 
 4t. Proceedings to set conveyance aside 
 
 as made to defeat, defraud and delay credi- 
 tors—Consideration — Bona /(/(.-(—Absence of 
 fraudulent intent— J. S. was induced to sign 
 an acconunodation note in favor of plaintiffs on 
 plaintilfs' undertaking that he would never be 
 called upon for payment. Two days later, in 
 fultilinent of an understanding which had ex- 
 isted long previously, J. S. executed a deed of 
 real estate, being the only property he possessed, 
 to liis two daughters, defendants, " in consider- 
 ation of natural love and affection, and as a 
 provision for the maintenance of himself and 
 wife, and in further consideration of one dollar. " 
 At the time of the execution of the deed, as an 
 additional consideration, defendants agreed to 
 pay, and subsequently did pay, a debt which J. 
 8. owed to one B. Plaintiffs having recovered 
 a judgment against J. S. on the note, sought 
 to have the deed to ♦he daughters set aside, as 
 made fraudulently and with intent to defeat, 
 defraud and delay creditors, and to have defend- 
 15 
 
 ants declared trustees for plaintiffs and other 
 creditors. A bill in Equity tiled for this pur- 
 pose having been dismissed, plaintiffs ap{)ealed. 
 It appearing that the deed attacked was made 
 for valuable consideration and liona Jiih, and 
 without any fraudulent intent, 
 
 JIM, that the appeal must be dismissed. 
 For-^j/lh tt al. v. Sut her/and tt a/., 
 
 7 R. & (i., 4r)0 J 
 8C. L. T., 15. 
 
 48. Proof of- 18 Vie, c. 9, s. 20- Tlie 
 
 subscribing witness to a deed need not be pro- 
 duced if the handwriting of the party making 
 the instrument can be otherwise proved. 
 
 Woods V. FraM.r, 2Tliom., 184. 
 
 49. Proof of title where no grant from 
 
 crown— Wild lands, actual possession of pari 
 — Constructive possession of whole — Consid- 
 eration—Effect of payment or non-payment — 
 Where a party claiming land in ejectment does 
 not derive his title from the crown, he is bound 
 to trace it to some one who has been in posses- 
 sion of the land. 
 
 A jiarty claiming wild lands under a deed, and 
 having actual possession of a part, has a sufHci- 
 ent constructive possession of the whole land 
 described in his deed to bring him within the 
 Statute of Limitations. 
 
 A purchaser Mho has paid consideration and 
 occupied for twenty years without a deed, ob- 
 tains title by possession, otherwise if considera- 
 tion was not paid. 
 
 Canard v. Irvine, James, .31. 
 
 50. Receipt indorsed on deed -The body 
 
 of a deed acknowleilged the payment of the 
 purchase money in the usual form, and a receipt 
 therefor signed by plaintiff was also indorsed, 
 but subsequent to the sale a dispute arose as to 
 whether the amount stated in the deed included 
 a mortgage existing on the property, or whether 
 the purchaser \\ as to pay that also. 
 
 Plaintiff having sued for the amount of the 
 mortgage, 
 
 Ili/d, that in the face of the indorsed receipt, 
 and of certain evidence adduced in confirmation 
 thereof, he could not recover. 
 
 McDonald v. liloix, 3 N. S. D., 283. 
 
 51. Rectification of— The Court will rec- 
 tify an error in a deed where there are clear 
 identification and proof of what land was 
 intended to be conveyed, and where the error 
 had been caused by the fraud of the party 
 seeking to defeat the deed. 
 
 Peart v. Peart, 2 Old., 73. 
 
451 
 
 DEED. 
 
 452 
 
 Si. Registration, notice of -4th R. 8., cb. j 
 
 79, 98. 9 and 19 - Easement, constructive ' 
 notice of— I'luiiititl' purt^hasfil in 187- a prop- 
 erty atlji lining ik'fen(lant'.s j)ri)pt'rty, and to tiie 
 nortli cif it. In IS.Vt t'aldvvell, wlio tlien ownud 
 tliL' nnitlii.'1'n iin)|)ei'ly, grunted by doud to 
 defendant the privilege of piercing tiie soutii 
 wall of his liuilding, carrying his stove ])ipes 
 into the tlues, anil erecting a wall aliove the 
 Houth wall of the liuihling to form at that 
 height the north wall f>f defendant's i>nilding, 
 whicii was higher than jjlaintilFs. This deed 
 was not leeorded nntil lS"l,ancl t!ie plaiiitifl's 
 solicitor ill searching <lid not sei rch under 
 Caldwell's name after tlie registry n'i the deed 
 by which the title passeil out of Caldwell's 
 possession in ISti'i, and did not therefore observe 
 the deed creating the easement in favor fif 
 det'endaiit. Defendant's n(.rtheni window was 
 so close to plaintifl's wall that it. was plain to 
 one narrowly observing it that defendant had 
 no separate northern wall, and the defendant's 
 northern wall above plaintill's building re.-ting 
 upon plaintiffs southern wall, was oltvious to 
 anyone htoking from the opposite side of the 
 street. 
 
 Held, that the deed creating the easement 
 came within the Registry Act as " airecting 
 lands,"' that plaintill', however, was not bound 
 by the registry of it in 1871, although previous 
 to his purchase, the title having pas.sed out of | 
 Caldwell in 18tj'J, but that plaintilf must be 
 held to have had notice of the easement as the • 
 encroachments were phiinly visible. 
 
 Ross V. Iliuito; 2 R. & G., 44. | 
 
 On appeal to tht Sujirtnui Court of Canada, 
 
 Hdd, that the coiitinuaiu:e of illegal burdens 
 on plaintitV's property since the fee had been 
 ac(iuireil by him, were in law fresh and distinct 
 trespasses ag.ainst him, for which he was entitled 
 to recover damages, unless he was bound by the 
 license or grant of Caldwell. 
 
 2. That the deed creal ing the easement was 
 an instrument requiring registration under the 
 provisions of the Nova .Scotia Registry Act (4th 
 Rev. Stats. N. S., c. 79, sees. 9 and 19) and was 
 defeated by the prior registration of the subse- 
 (juent purchaser's conveyance for valuable con- 
 sideration, and therefore from the date of 
 the registration of the conveyance from Cald- 
 well to the party through whom plaintiff 
 claimed that the deed of grant to defendant 
 became void at law against the grantee in .said 
 conveyance and all parties claiming through him. 
 
 3. That to defeat a registered deed there 
 must be actual notice or fraud, and there was 
 no actual notice given to plaintiff in this case, 
 
 such as to disentitle him to insist in ecpiity on 
 his legal jiriority aciiuircil under the Statute. 
 
 /'( (• (Iwyniie, .!., ilissi iiliiiij. — That upon the 
 pleadings as they stood on the record, tln' 
 question of the Registry Act did not arise, m\A 
 that as tlie incuinbrance coinplained of Imil birii 
 legally created in 1S.")9, its mere continiiiiinediil 
 not constitute a tresjiass, and that tlie iiction u.s 
 framed should not be sustained. 
 
 lioss V. IIiuili i\ 7 S. C. R., "289. 
 
 53. Registry of » deed is not e(|iiivalcnt 
 
 to enroliiieiit under the statute of uses, so as 
 to transfer tiie jiossession. 
 
 Sh'.y et a/, v. Chisholm. Jaiurs, .V.'. 
 
 j 54. Seal Existence of presumed in rer- 
 
 j tain, cases ^ A document, forty-tive years oM, 
 in terms a mortgage of real esUite, was without 
 
 [ .seal, anil had no trace, mark or impression of 
 
 j any seal; but it contained the usual l(sliiluin 
 clause before the signature of the parties, uml 
 the usual form, "signed, sealed and delivi'ieil 
 in the preseiux- of," before that of the witnesses. 
 In the registry of the alleged mortgage, two 
 years after its date, tiie registrar had phueil 
 opposite the signatures Iwth of the alleged moit 
 gagor and his wife, who signed by iiuiiks, tlie 
 usual mark, (L. S.) The wife of the allegeil 
 mortgagor had also acknowledged her release of 
 dower before a .Justice of the Peace, and the 
 assignment of the allegeil mortgage two years 
 after its dale, was under seal. 
 
 Held, Young, C. J., and Dodd, J., dissintimj, 
 
 j that the existence of seals to the alleged iiioit- 
 
 gage at the time of its signature might be pre- 
 
 \ sumed. 
 
 Martin el al. v. Barnes et al., 1 Old., 291. 
 
 i 
 
 I 55. SherlfT's deed — Conveys prlni.i facie 
 
 title of defendant— Evidence— A Sheriii'sileeil 
 ' prima fane conveys the title of the defemlant ; 
 
 and even if a portion of the proceedings in the 
 j suit prior to the deed be gis-en in evidence, it 
 
 will not compel the party to prove llie wliole 
 
 proceedings to have been regular. 
 
 Sutherland v. H'hiddcn, 21i\\om.,m. 
 
 56. Sheriff's sale — A purchaser at a 
 
 Sheriff's sale may appoint a third person to 
 receive the deed. 
 
 Scott V. McNatt et al., 2 N. S. D., US. 
 
 57. Trespass for acts done by grantor 
 after delivery of deed, but before entry of 
 grantee— When after delivery of a deed tlie 
 grantor remains in possession, trespass will not 
 
453 
 
 DEED. 
 
 454 
 
 lie against liim or his tcnimU for outting trees 
 previous to actual entry of grantee. 
 
 iMiiijiUe V. Lanijille v.t ai., 1 Thoni., 
 
 C-'n.l K(l.), 1">9. 
 
 38. Trustees convening to themselves 
 
 and others— Wiiere two as trustees eonveyeil 
 tn themselves and live others as trustees, 
 
 //«/)/, that the title was sullieiently eonveyeil 
 tofUiilile the lessee, under a leiise made hy the 
 seven, to recover in ejectment ; that if the two 
 trustees could not convey to themselves, the 
 five others took the whole title, and the lease 
 WIS therefore good as their lease. 
 
 Li .«h- of Jiiijt/ow tt al. V. XorioH, 
 
 2 Thorn., '283. 
 
 39. Trust resulting — Consideration - 
 
 Pluiiititl', in his bill or writ, set out that John 
 1" - granted certain hin<ls to defendant by 
 deed, which, though absolute in its terms, was 
 given to secure !i?(i(K», advanced by defendant to 
 creditors of said grantor, and that d'jfendant 
 at tiie execution of the deed promised '.o reeon- 
 vcy to the grantor on payment witliin three 
 years of tiie amount due ; tiiat the estate of tlie 
 grantor had become vested in plaintitf, who had 
 tendered the six hundred d(dlars and ottered to 
 pay any balance found to be due defendant, who 
 refused to accept the money or execute a deed. 
 
 Defendant's answer set up a parol trust to pay 
 in full a debt due by the grantor to defendant, 
 and aj)ply the surplus ratably among five other 
 creditors ; that the amount thus due was more 
 than the six hundred dollar.s tendered, and de- 
 fen<lant offered to reconvey the land on payment 
 of tiu; debts as security for which it was given. 
 A memorandum, signed by the grantor, was 
 delivered to the defendant at the time of the 
 conveyance, witnessing that "the sums attached 
 tn tiie following names " (the five creditors re- 
 ferred tr) in defendant's answer) " are included 
 as the consideration money of John Blair to 
 Robert Chambers." 
 
 The ci'editors referred to were at the time 
 pressing lUair for payment, and gave him time 
 in consideration of this conveyance. The claims 
 of several of them were bought at a reduced 
 rate by Blair's son-in-law in Blair's interest. 
 
 Hf.Id, that there was a consideration moving 
 from the several creditors named in the memo- 
 randum to Blair, and a resulting trust in favor 
 of all the said creditors ; that parol evidence of 
 this trust could be given consistently with the 
 Statute of Frauds ; and that defendant held the 
 land in trust for the payment of his own debt 
 and the debts of the other creditors at their full 
 amount, notwithstanding the purchase of the 
 
 same for a reduced sum. which was held to be a 
 
 matter sidely between those creditors and their 
 
 assignee. 
 
 y'ojye v. Chumb(r.-<, 1 R. & «., 232. 
 
 60. Unrecorded deed avoided by a Judg- 
 
 miint recovered subsequently, but first regis- 
 tered — Possession of grantee — Notice to 
 judgment creditors — Construction of Revised 
 Statutes (4th series) c. 79, s. 22— Chapter 7W, 
 of the Revised Statutes, (4th series), s. 22, reads : 
 "A judgment duly recovered and docketeii shall 
 bind the lands of the party against whom the 
 judgment shall have passed, from and after the 
 registry thereof in tiic county, or district, where 
 the lands are, as effectually as a mortgage, 
 whether such lands shall have been ac(|uired 
 before or after the registering of such judgment ; 
 and deeds, or mortgages of such lands duly 
 executed, but not registered, shall be void 
 against the judgment creditor who shall first 
 register his judgment." 
 
 The Hank of Britisli Xorth America recovered 
 a judgment against one Merriam and others, 
 January 2lMt, 187t), and registered the judgment 
 on the following <lay. 
 
 On the 23rd April, 1873, Merriam conveyed 
 certain lands to one Fraser, under whom defend- 
 ant claimed, who went into possession and 
 improved the lands, and was in possession at 
 the time of the recovery and registry of the 
 judgment, but neglected to record his deed 
 until .January 28tli, 1876, some days after the 
 registry of the judgment. 
 
 On May 5th, 1879, after execution had been 
 duly issued, the property was sold at sheriff's 
 sale to plaintiff, the general manager of the 
 Biink of British North America, who brought 
 ejectment. Neither the plaintiff nor the bank 
 of which he was manager had actual notice of 
 the conveyance to Fraser, or of the fact of pos- 
 session, until just previously to the sale. 
 
 Hdd, by McDonald, J., McDonald, C. J., and 
 Smith, J. , concurring, that the prior unrecorded 
 deed to Fraser was avoided by the registry of 
 the judgment, and that plaintiff was entitled to 
 recover. 
 
 Weatherbe, J., dissenting. 
 
 Grindley v. Blakie, 7 R. & G., 27 j 
 7 C. L. T., 50. 
 
 61. Unrecorded — Sobsequent recorded 
 
 mortgage given priority over — J. R. McL. 
 being entitled, by right of his wife, to an inter- 
 est in certain real and personal property, being 
 an estate of which M., the wife, was one of the 
 heirs, they joined in a mortgage to plaintiff of 
 all their said interest. On plaintifif seeking 
 
455 
 
 DEFAMATION. 
 
 456 
 
 repayment of the iinioiiiit loaiu><l, ilufentlant, I y/(,'(/, tliat .lefeiidaiil liatl coininitted a i)Uiii»li- 
 one of the executors of tlie said estate, resisted i able oflence, and that the proceedings were at 
 tlie claim, on llic ground tliat six years pievi- the time so fai' pending in the Court as tocnaWu 
 ously .1. U. McL. and wife had conveyed all it to act sumniarily liy attachment, to punish if 
 their interest in said estate l)y deed poll to her ' necessary, tiie otlence committed, 
 mother. Tliis deed was never recorded, an<l ! The lil.els complaine.l of were puhlished on 
 the plaintitr did not know and iiad no means of ' the .'tOtli December, lSS.->. and the2()th Jai\uary, 
 knowingof its existence. Tlie motlier, altliougli ' l8H(i. Tiie motion fur the attachment was not 
 aware of plaintilV's mortgage at the time it was : made until March "iTih, I8S() 
 
 made, concealed from him the fact of tlie deed 
 to her. 
 
 IJM, notwithstantling the lapse of time, lliiit 
 the rule shoidd he made absolute with costs. 
 
 Ihid, that having so concealed from the , The main object i>f the application was to 
 plaintiff wiiat it was her duty to reveal to him, I prevent furtiier publications of a similar cliarac- 
 the mortgage siiould be given priority over the ter, and not to punish for the past oll'euue ; 
 
 deed poll, and plainlilF's claim satisfied out of < 
 the estate. 
 
 \y,:s( V. MafhisoH It nL, 3 X. S. 1)., 4-29, 
 
 therwise the Comt wouhl have hesitated to 
 grant the rule. 
 
 Qiuiii, V. W'ooilirorth, ~ \i. &('•., \S{); 
 
 1 V. L. T.,-.'4ti. 
 
 m. Voluntary -A voluntary conveyance 
 
 by one not indebted at the lime, not in embar- 
 rassed circumstances, and not made witli a 
 fraudtilent intent, cannot be impeached in 
 equity by a sui)se.iuent creditor. 
 
 I'oshr V. Foii'If.r (t al., 1 Old., 7.')3. 
 
 DEFAMATION. 
 
 3. libel Averments -Innuendoes In an 
 
 action for liliel, the third count of tiie docliiiii- 
 tion allegeil that the defenilant falsely ami 
 maliciously printed and jmblisiied of tlie jiliiiii- 
 tilT, in relation to his calling as a ministeici; the 
 gospel, the worils following: "Notice.— .Ml per- 
 sons who have at any time paid Mr. William 
 Howers (meaning the plaintiff), formerly of the 
 Lutheran Church in Nova Scotia " (meaning 
 that plaintitl'at the time of such publication was 
 falsely pretending to be a Lutheran Minister in 
 
 1. Costs-Judge may certify for costs ■ j,^^.^^ ^^..^^j^^^ .. ^„y ,„„„^y f„, f„„„,,,, ,^,,,1,,,, 
 
 when evidence shows malice -In an "•^'Hon i ^^,.j, ^.^^^^j^.^. ^ ^ f^^^.,,^. , ,,,, ^,, ,„,,,i,^ ^,^,„^.„j,. 
 
 for libel, the ' 
 
 the piaintifT 
 
 Judge thereupon gave a eertiticate that the j^^j^^^.^' [i^^ ^j^^^^ ^^ ^1^^. ^rst 'week "in October 
 
 libel complained of was wilful and malicious, 
 
 so as to entitle the plaintiff to costs 
 
 1, the jury found a verdict in favor of j^ ,^y i,,i,„nng in their names to the editor o 
 intiff for S5 damages, and the presiding ' ^,^j^ ^^^^^^^^, ^,^ ^.^,.,y ,^^ ^,,^,y possibly can, an, 
 
 next. 
 
 H</<l, on demurrer, that the count as contain- 
 Hold, on appeal, that as Uie evidence clearly 1 .^^^ ^^,^^^^^ averments an.l innuemloes, was go.«l. 
 
 Boirer-y v. Hutchimon, 1 Old., 679. 
 
 showed malice, the certificate was properly 
 
 given. 
 
 Bars.1 V. Wallace, 20 N. S. R., 
 
 (8R. &G.), 504. 
 
 2. Libel — Attachment for contempt 
 
 4. Libel— Defects In declaration cured by 
 
 pleading— Immaterial averment of otfice where 
 words actionable yer se — Functions of jury- 
 Laches in moving — Jurisdiction of Court — Damages— The declaration set out that the de- 
 Defendant was committed for trial for having I fendant company falsely and maliciously ininteil 
 published in his new.spaper certain libellous and published of the plaintiff in relation to a 
 matter concerning M. Shortly afterward certain office held by him as Deputy Provincial 
 
 defendant published three other libellous articles 
 concerning M., which were calculated to in- 
 fluence the minds of the i)eople from whom the 
 grand and petit juries would have to be drawn, 
 and thereby prevent a fair and impartial investi- 
 gation of the charge against him. When the 
 last mentioned libels were published the deposi- 
 tions taken on the former complaint had lieen 
 returned to the Supreme Court and were on file 
 therein, and it would be the duty of the presid- 
 ing Judge at the next sittings of the Court to 
 submit the matter to the grand jury. 
 
 Secretary, in a certain newspaper, &c., and 
 vhkh naid artir/e appeareil in the editorial col- 
 umns of the Morniiui HcmAZ, &c., and was as 
 follows, viz. (the article being set out at length.) 
 
 ffvld, that although no "article" had liecn 
 mentioned in the count to which the words 
 " which said article" could refer, the defect was 
 cured by pleading over and particularly by 
 justifying the publication. 
 
 Held, further, that although the defamatory 
 matter was charged as having been published ol 
 the plaintiff in relation to his office, it was no 
 
457 DEFAMATION. 458 
 
 olijectiiiii to tlif voi'diul fur |ilaiiititr tliat tlie jury wlictliiT i>r not the occasion created ii privi- 
 
 fact i>( iilaintirt' holiling nucIi ollice was not lege, and if so, .siiould liave left it to the jiiiy 
 
 |ii(iv((l, as sonic of the words used were action- tosay wiietlicr the defendant was actuated l)y 
 
 iilile in themselves, and the innuendoes sliowed malice in fact, wiiicii, if it existed, destroyed 
 
 that theoliject of IIk^ suit was to recover damages his privilege. 
 
 sustained liy plaintitV out of otlice hy rea.son of ''«// "■'• (-'orlx't, 4 11. .V ('.., 407. 
 
 eliarjres made against iiini of alleged improper 
 
 tniid.Rt Willie in odice. 8. llbcl Mallclous prosccutloii Pflvl- 
 
 //./-/, also, that tiie evidence of pul.lication lege -Declaration in tlie Supreme Court of Nova 
 
 wiissiitlicieiit to go to the jury, and it was no ><cotia, at Halifax, alleging in tiie tirst three 
 
 iniMlire.lion to leave the iiueslion of pul.lica- counts, that the defendants falsely and nuilieicms- 
 
 tJHii to the jury under such evidence, and that 'y "■'"'^' "'"1 pul'lisiied concerning the plaintiff 
 
 tiif damag.ts (.d<HKJ) were not excessive, in view H"' words contained in a iK-tic served upon iiim 
 
 of the serious charges contained in the article under the Statutes of Canada, 32 and 33 Vict. 
 
 aii'l the suhst.,|ucnt con.luct of the defendant. <'• 1<». «• 14, reijuiring him, being indehted to 
 
 CroM-i// V. Till MurniiKj ILmId /'nii/iii;/ them or f)thcrs on certain promissory notes long 
 
 mill I'lihlishhnj Co., 4 U. X- (i., •JtKj. overdue, to make an assignment of his eatale 
 
 ' and etFects for the benefit of his creditors, and 
 
 .1. Llbcl -Forgery Pleadings The dC- alleging in the tifth ecmnt that liic defendants 
 
 fi'iiilant ill an action for slander accused the maliciously and without reasonable or probalile 
 
 |ilaintiil' of writing tlic will of an illiterate per- , cause obtained a writ of capias against the 
 
 sipii coiitiaiy to his instructions, and rea<ling it I jdaintitf in an action on certain promis.sory notes 
 
 til him inaccurately, foi- the jmrjiose of getting | of wiiieh the plaintifT was the maker and the 
 
 the testator's propi'rty into the plaintiff's hands defendants were tlie indorsees for value, by 
 
 for his own lienetit, whereby the testator was falsely and maliciously representing by a false 
 
 iiHJuccd to execute tlie will. affidavit that the pliiintilf was about to leave the 
 
 //</'/, that tiiis was a charge of forgery against Province, ami alleging the arrest of the ])laintitt° 
 
 llif |)laiiititl'. thereunder and his subsec|ueiit discharge by an 
 
 '{"he deilaration laid tilt! words used as accii- ruder of Court on its ap])earing tiiat he was not 
 
 siiiL' tiie plaintitl'of cheating. about to leave the Province. Plea to the first 
 
 //'/</. to lie sutlicient to sustain a \eiilii;t for tiiree counts, a denial of |)ul)'.ication to anyone 
 
 pliiiiilitV, although tile words used amounted in luit tiie jilaintitl, and that tiie notice contained a 
 
 reality to a eliarge of forgery. true statement of facts ; to the fifth count, that 
 
 V"'"''. wlietiier a charge of a gross ])rivate having been informed and believing tliat the 
 
 fraud will sustain an action for slander without plaiiititl' was aliout to leave the Province the 
 
 s|itrial damage. defendants caused proceedings to be taken to 
 
 [[nil V. Citi-lii, .lames, ;{7!t. ,i.u>,ver their debt, which was <,f long standing. 
 
 «. Libel -Innuendo It Is Sllfflclent to The . I udge .litx-ctcd the .j,,ry that if the defend- 
 
 specify the defamatory sense of libellous w..rds '""'^ '>"' ""» '^^ ""' ""'^' "^ ""' "'•'•'■■^^ ''"'"^^'^ ^'"^^ 
 
 ;„ ,1 f e '■ 1 -.1 . .1 tlii'ir lU'lit would be otherwise lost, and acted 
 
 111 tlie toriii of an innuendo without other . ' 
 
 I . witli a \ iew to protect the interests of the indor- 
 
 M, : : „ f.i I. •. 1 o. , ,. , 1,1 1 sers of the notes rather than their fiwn, tiiat 
 liccisiiiiis III tliu united Ntatest ouits altlioiigli ' 
 
 „,„;,i 1^ . . , 1 ■ 1- ,• . would be evidence of want of reasonable and 
 
 cntitleil to respect are not lundnig on our I oiirts. 
 
 I, I , I, ,/, I .,,.- probalile cause for arresting, and entitle the 
 
 /{ohnii V. I (itillii, .lames, ,{(>,. ' "' 
 
 plaint iir to damages ; and the Court subsei|uent- 
 
 «• Libel Innuendo Funetions or Judge ly held that the general verdict, including 
 
 andJurv Privilege ■ Mefeiidaiit admitted |)ub- damages in respect to the lirst three counts, was 
 
 liratiuii iif ail alleged libel, and denii'd tha^ the justified on the ground that the pleas of the 
 
 alleged defamatory matter was published of and defendants to those counts did not ilciiy the 
 
 Cdiiccriiing the jilaiiititl' with the sense si^t out in material allegations of pulilications, falsity and 
 
 tile imniciiihi. malice. 
 
 //'/'/, that it was the duty of the .ludge to J[ilil, that there was misdirection which 
 
 tell »lu' jury whether the words used were justified a new trial. There was reasonable and 
 
 oapalile of the construction put on them by probable cause for the arrest if the defenilants 
 
 Iiliiiiititf, and to leave it to the jury whether the believed that the ))laintifl' was about to leave 
 
 Wdids were in fact used with such meaning. the Province, and that their remeily against him 
 
 ffilil, further, that under the jilea in which would be lost if he were not arrested, notwith- 
 
 •lefendant justified the publication as a legiti- standing they might have believed that they 
 
 niiUe criticism, the Judge should have told the could recover the debt from the indorsers, and 
 
459 
 
 DEFAMATION. 
 
 4G0 
 
 were endeavoring to protect the interests of 
 intlorsers. 
 
 The notice being a legal proceeiling was 
 prima faw privileged, anil no action would lie 
 for the delivery of it to a third person for service 
 upon tiie jdaintirt' unless upon ]>ro()f of express 
 malice. The allegation of f.ilsity was impliedly 
 denied, and there was tiiereforo no necessity to 
 expressly deny malice. 
 Bank of British Xorth Amcrira v. Stroifj, 
 
 1 App. Cas., 307 ; 34 L. T., (V-'7. 
 
 Unreported helow. 
 
 9. Libel -Privileged communiration— De 
 
 fendant wrote to the Provincial Secretary a 
 letter containing complaints and^charges against 
 the defendant in his otfice as sherilF. Defendant 
 justified on tiie ground tliat, heing a l)arri8ter 
 of the Court and dissatistied witii the official 
 conduct of the plaintilV he had written to said 
 Provincial .Secretary, l)eing a mcndier of the 
 (lovernment wiiich had appointed and could 
 dismiss tiie plaintiff, helieving tiiat the state- 
 ments set forth in tiie letter were true, and he 
 alleged that the letter was written witliout 
 malice. Plaintifl' new assigned ])iil)lii'ation to 
 other persons, l)ut the letter so pul)lisiied wis 
 not clearly iilciitified witli the one on wliicli tlie 
 action was brought. The jury found for defen- 
 dant. 
 
 IJilil, that the communication to the Provin- 
 cial .Secretary was privilegeil. 
 
 Per Smith, J. — Th.it althougli the letter con- 
 tained 'xpressions tiiat inigiit indicate malice, 
 as the jury found for defendant, after the 
 evidence on that point had been clearly put to 
 them by the .Judge, the verdict could not be set 
 aside. 
 
 Per McDonald and Weatherlie, d J. — That 
 although the verdict was unsatisfactory, there 
 was not sullicient reason for disturbing it. 
 
 DiiBarrts v. Tn maim , 4 K. it G., 215. 
 
 10. Libel - Privileged communication — 
 
 Plaintiff' was a land surveyor, appointed by the 
 (iovernment of tlie Province, and ilefendant 
 wrote a letter to the Provin<;ial .Secretary, com- 
 plaining of plaintitf's conduct and making cer- 
 tain charges against him, whereupon plaintilY 
 proceeded against him for libel. Defenilant 
 pleadetl tiiat ids letter was a privileged connnu- 
 nicatiim. Tlie Commissioner of (^rown Lands, 
 and not the Provincial .Secretary, was the per- 
 son to whom the letter should projierly have 
 been addressed. The learned .Judge who tried 
 the cause directed the jury, that if they thought 
 the letter was, in view of plaintiff's official rela- 
 tion to the Government and the Crown Laml 
 Department, written in good faith and without 
 
 ; malice, it was a privileged communication. The 
 ' jury found a verdict in favor of defeiKiaiit. On 
 argument of the rule to set the verdict aside, 
 
 Jli'lii, that although the letter should strictly 
 have been addressed to the Crown I..and Depart- 
 ment, yet that the Judge's direction was rigiit. 
 Mule discharged. 
 
 Kerr v. Davimn, 3 N. S. D., 354. 
 
 11. Libel — Proof of publication The 
 
 defendant company was incorporated by stiitiuu 
 
 . for tiie purpose of iirinting and publishing tlie 
 
 Moriiiiii/ Hi raid newspaper, and was chargeil 
 
 '■ by plaintiff with having published of and lou- 
 
 I cerning liim tliat he hadal)sconded, meaningtliat 
 
 lie was insolvent. A letter was put in evideiKe 
 
 ' from plaintiffs solicitors to Cahill, the business 
 
 ' manager of tlie company, referring to the .stiite- 
 
 ment as fnlse, and demanding reparation, to 
 
 ' wiiich tlie following letter was received, in the 
 
 , hanilwriting of the business manager, who had 
 
 shown tiie letter to the editor: "The editurof 
 
 the IJirnId, referring to Messrs. McCoy & 
 
 j Longley'a (the solicitors of plaintitf) letter, re- 
 
 cpiests that they state what reference they wisli 
 
 to iiiakt; to the matter in the Hi rnlil. If the 
 
 statement as puldished is now <lenied by Mr. 
 
 I Wright, the eiiitor is willing to accord to liim 
 
 the benefit of such denial." 
 
 i The business manager, who had been a prao- 
 ' tical printer, testified that he had knowledge of 
 the make-up of the jiaper, and that tliere were 
 advertitieini nts in the paper tenilered that were 
 i charged for l>y tlie defendants, but on tin; fol- 
 lowing day he gave evidence somewhat contliet- 
 ' ing with that of tlie previous day in reference 
 i to his knowledge of the make-up of the paper. 
 The .Iiulge ou the first day declined to receive a 
 question as to Cahill's belief that the paper ten- 
 dered was one issued by defendants. In his 
 report tiie .Judge said : " I refu.sed to receive 
 the newspaper as proven, and jilaintilf having 
 become non-suit, I otfered to give him a rule 
 nixi. " 
 
 Held, that this was not such a voluiilary non- 
 suit that the plaintiff could not move to set it 
 aside, and that the evidence of Cahill as to make- 
 up of the paper should have gone to the jury. 
 
 Per McDonald,.!., that on the evidence "f the 
 letters, the ijuestion of publication was one of 
 fact for the jury. 
 
 Wriijht v. Morninij Herald Co., 
 '2 R. &G., .398; 2C. L. T., 106. 
 
 12. Libel -Proof of publicatlon-Idcntit) 
 
 of plaintiff with party defamed — I'roof of— 
 This acticni was brought against the defendant 
 Company for wrongfully and maliciously trans- 
 mitting over their wires from Halifax to St 
 
461 
 
 DEFAMATION. 
 
 462 
 
 John, ami causing to be printed an<l published in ' 
 the Ikiihj Ti/iijiajih of tlie city last nivnicd, and 
 ilsi'wluMC, the false and defamatory message of ' 
 mill concerning tiie plaintiffs, i. c, "John Silver 
 k (Vi. (meaning the plaintiffs) wholesale clothiers ; 
 (ifCraiiville Street iiave failed, lialiilities heavy;" 
 iiicaning that i)laintilTs, .tc, whereby many cus- 
 toniors teased to deal with plaintiffs, &c. Defen- 
 dants denied having published the alleged j 
 m.ittcr of and concerning tlie plaintiffs, and no' 
 evidence was offered to show that the alleged 
 liliil, or the words John Silver and Co., referred 
 to the plaintiffs or either of them, but the plain- 
 titlVdisirilied themselves in the writ as whole- 
 sale and retail merchants in Halifax, doing 
 Imsiiiess under the name of John Silver* Co., 
 and there was no evidence of any tirni doing 
 business in Cranville Street of the name of John 
 .Sihcr.t Co. other tiian tiiat of plaintitl's. The 
 (jiJL'inal telegraphic message was not produced, 
 luit a copy of the newsjiaper containing it was 
 iiMiived in evidence, the publisher of the paper 
 having stated that he never searched for the 
 tvhgiani. that it was no use to do so, that he 
 had never hail the custody of the telegram, and 
 that suili telegrams were generally destroyed ] 
 the niiirning after they were received. There I 
 was nil expre.-is evidence to show that Snyder 
 villi fi.iinislied the telegram was ap|)ointeil by 
 (IctVnilants as their agent, but the jmidisher 
 swore to an agreement bj- which lie took tele- 
 graphic iiiforiuation from the defendant Com- ' 
 pany, i)aying oidy for such telegrams aa he 
 pulilished, and added that Snyder was the head 
 man in St. .lohn and liad been so ever since the 
 cstalilislinient of tiie ('omi)any, that his trans- 
 actiiins were entirely witli .Snyder, whom he : 
 loiil< tn lie arting as agent of the Company, the ! 
 liills being rendered in their name by .Snyder. 
 
 //'''/, Weatherbo J., di'ottntiiKj, that the j 
 juiy were warranted in tinding that the libel j 
 cinnplaineil of pointed unmistakably to the ■ 
 plaintitl's, that the copy of the newspaper had 
 liein properly received : that the jury were 
 warranted in tinding that .Snyder, in furnishing 
 tile telegram, was acting as agent of the defen- 
 ilinls, and that the verdict for the i)laintiffs for 
 87<J<lO. altliough perhaps larger than the Court, if 
 e'ii]iaiiiielled as a jury, would have given, could | 
 not he set aside as excessive. i 
 
 .yi/rtr u at. v. Dominion Ttlinm/ih Company, : 
 
 2R. &(;., 17; i 
 1 C. L. T., L'S-t. ; 
 
 0)1 npjK-nl to thn Sitpirme Court of Canada, \ 
 
 Hilil, Taschereau and (Jwynne, JJ., iliisint- 
 
 !«;/, that the appellants, the 1). T. Co., were j 
 
 respniLsiljle for the publication of the libel in , 
 
 question. I 
 
 /Vr Taschereau and O Wynne, JJ., dinsentimj. — 
 Assuming the agreement in (juestion to be one 
 within the scope of the purposes for which the 
 defendants were incorporated, and that .Snyder 
 had sufficient authority to ente' into it on behalf 
 of tlie defendants, the evideni'e established that 
 the defendants eoUected, eoni|>ileil and trans- 
 mitted the news for the proprietor of the news- 
 paper, as his conlidential agents and at his 
 reiniest, and that they were not responsible for 
 the publieation iiy the said jirojirietor and pn))- 
 lisher of said news, for which the damages were 
 awarded. 
 
 2. That the damages were excessive, and 
 thei'efore a new trial ought to be granted. 
 Hitcliie, C. J., donhlinij, and Henry, J., dissint- 
 
 '".'/• 
 
 Hilil, rr/xo, //( )• .Strong, Tasohereau and 
 (Jwynne, .M. — \o special damages having been 
 alleged in the declaration, the evidence as to 
 such damages having bei'U objected to was 
 inaiiinissible, ami therefore a new trial should be 
 granted. 
 
 Dominion 'J'< lii/ra/ih Ctnnjifini/ v. Si/nr, 
 
 10 S. C. R.,-238; 
 •2C. L. T., •_>.-.•>. 
 
 13. Libel— Voluntary non-suit Evidence 
 
 — t)n a motion for non-suit tiie learned .Judge 
 expressed the opinion that the )daintiff's evi- 
 dence was extremely weak, but did not suggest 
 that tliere was nothing for the jury. The 
 plaintiff's counsel having thereupon offered to 
 become non-suit if with leave to set it aside, 
 which leave was given, 
 
 //(/</, that the non-suit was vohintaiy and 
 could not be disturbed. 
 
 A general charge of foreswearing is sulhciiuit 
 to maintain an action of libel, but where the 
 charge is to be found liy iiii])licatii>n from one or 
 more writings, the case is different. 
 
 Where a writing was referred to in an alleged 
 libel, 
 
 Sitnfili, that the writing should have been 
 produced, or its contents proved where its non- 
 production was accounted for. 
 
 Oake^ v. Kcatimj <t al.,\ R. & (,'., :m\. 
 
 14. Slander— Innuendo— Evidence — De- 
 fendant nsed in reference to [ilaiiitiff the words 
 "stud" and "mare rider," for which plaintiff 
 brought an action of slander, with an innnindo 
 attributing to the words the meaning that jilain- 
 tiff had committed the crime of luiggery. The 
 Court set r.side the first verdict on the ground 
 that the words were not actionable pir st. On 
 the second trial, the only eviilence adihiced by 
 way of foundation for the iiiiestion as to the 
 sense in which the words were understood, was 
 
468 
 
 DOMICIL. 
 
 464 
 
 that of niniors in tlic npiglilxiiirliooil tlial tin- 
 pliiintitr liail ('(iiniiiittoil such iiiini-, Imt it wiih 
 not slinuu tlml those rinnors woi'e known to the 
 (lefvntlant. 
 
 //'A/, that tiic cviilcni't- liail hvvu iniin'iipi'ily 
 ailiiiittt'd, anil that tiu' vfiiliit for plaintilV must 
 he set asiiU". 
 
 (Intnl V. Siin/iyon, .'J ]{. & ('., 141. 
 
 U. Slander — Privileged communication 
 
 — Malice- I'hiinlitr was tlie Lollector of pew 
 rents in St. Paul's Chureii, and it was his duty 
 as sueli to hand them over to tlie defendant, 
 who was the .senior warden. 'I'iie ehin'eli had 
 been l)roken oj)en, and the moneys and money 
 boxes, witii eeitain liooks of no use to any one 
 but tlie plaint ill' and the ChiU'eh, taken away. 
 The defendant, in presenee of the plaintitl's 
 surety (a vestryman), two otlier vestrymen, and 
 the reetorof tile eliiireh, iliarj,'ed plaintill' w ith 
 the erime, adding that he had not handed over 
 the money eoUected, and had destroyed the 
 hooks to lovi'r the delieieney. Tin.' jury, in 
 answer to a nuestion, said tliat they I'oidd not 
 decide whellier the defen lant had malice or not 
 when tiie words were sj)oken, hut tiiat they 
 considered lie had no right to use tliein, and 
 tlicy found for the plaintill'. 
 
 Ifi/'/, that the eominunieation was privileged, 
 and that as tlie jury had not found express 
 malice the verdict must fall. 
 
 Shiphn-il V. II7(//', •_' H. k ('., .SI. 
 
 10. Siander Special damages need not 
 
 be alleged or proved in certain ca.se.s I'laintitf 
 claimed damages for slaiidir, alleging in ill.-; 
 declaration that defendant had spoken certain 
 word.s about him in relation to his husiiuss to 
 the efteet that he was guilty of fraudulent con- 
 duct in said Imsiness, and was untrustworthy 
 and ii!']iriuciplcd in his way of carrying it on, 
 whereby plaintill' was injure<l in hi.s ciedit and 
 reputation, and his custoniers were eau.sed to 
 limit their dealings with him and to withhold 
 business from him. 
 
 //(/(/, that there was no neeil of alleging oi' 
 proving sjiecial damage. 
 
 I'aiiit V. Muckaii, ;j X. .S. 1)., .31«. 
 
 DEMl'RRKR- 
 Sf, PLEADING. 
 
 DEPOSlTIOJr- 
 
 See EVIDENCE. i 
 
 DEVI.4TI0N AND CHANGE OF VOYAGE 
 Distinction between— 
 
 Ste SHIPPING. 
 
 DEVISE- 
 S'' WILL. 
 
 DISCOVERY- 
 S.r EVIDENCE. 
 
 DISMISSAL, WRONGFUL- 
 SW MASTER AND SERVANT. 
 
 DISTRESS FOR RENT- 
 SV' LANDLORD AND TENANT. 
 
 DOMICIL 
 1. How constituted Three years' res|. 
 
 deuce with an inteiiclcd 'Mic<'rtaiii contimuimr. 
 thougli for a special ))urpose, witii trade in 
 dependent of that Jiurpose, continued after the 
 declaration of war, constitutes a domicil. 
 
 Th( Piitriof. Stewait. .'i.'iH. 
 
 2. American doniicii not divested - 
 
 Frenchman domiciled in America, begins voy- 
 age to France with a view of settling tin re, 
 hears of war and returns to America, aban- 
 doning his intention of retorning to France- 
 A Freiuhnian win- had settled in America , mil 
 become an American citi/en, sailed finni ISiilti- 
 more for Dunkirk on a French ship inteinliiig i" 
 take up his residence once more in Kranw. 
 The vessel sailed in ignorance of existing war 
 iK'tween France and Kngland, and while on lui 
 voyage received the first intelligence of this 
 event. She at once altered her voyage aiiii 
 stood for Ho.'iton, the nearest port in the Slati'S. 
 After pursuing her voyage for Hoston fi)i' '<• 
 whole month, she was captured and hnniglit 
 into Halifax. Upon bringing in an atliilavit 
 that upon his receiving information of war, he 
 had totally abandoned his intention of reiiioving 
 to France during the continuance of the war, 
 
465 DOWER. 460 
 
 anil (leRi^jiu'cl to return to liis doinicil in the witli C. S. After the dcatli of ('. R., pluintittH, 
 
 rniti'il State.-', goods of tlie Fronulnnan taken as reversioners, without joining tiie heirs of ('. 
 
 (Ill lioaril t lie vessel were oi'dered to lie restored. R., brought iin action of waste against the 
 
 Tlif f.i'< Troll Frini, .Stewart, I. tenant in dower, C. S., her husliand, and \V. H. 
 
 H., the piireliascr, elainiing damages for the 
 
 i in jin\v to the land liy the removal of the timlier. 
 
 The .ludge who tried the eause having nonsuited 
 DONATIO MOKTIS C.4l'8A. the plaintilfs, and a rule having lieen taken to 
 
 set the same aside. 
 
 Donor cxppcising acts Of ownership ancr ;^,/,, (,, ,1,,,^ ,,„ ,,,^. j„.,,„„, ,,,„i„,.., ,^, 
 
 gift The delivery of the key of a .•hest .ontan,- ,.,,,.,.,,)„„,,,,, „,,„„,,, ,,„,.,. ,„,^,„ j„i,„,.i „, ,,„. 
 
 in,' n,n„,.y, with the expressHm, "all the n.oney ,,,,^j,„i,y,_ ,„„_ „, „.,n-joinder ean only he taken 
 
 h, that ehest I give to you," when the donor ,„i,,,,„,,^„. „f l.y ,,W in al.ateu.ent, and no sueh 
 
 s„lis,.,|„w>tly exereises acts of ownership over ,,1,,,, was pleade.l, the non-suit, if ordere.l «-/./»/ 
 
 til- chest, will not eonstitute a ,h,m>>o """•"-■ „„ that grouml, eouM ,u.t have heen sustained. 
 
 '""*"• , ,, , , ,. „ , .,,,., ,.., ('2.) That in such ca.se the plaintitls would 
 
 III f< Lslati- 0/ Jidi-liiiaii, '2 lhom.,(i"J. , . , , , /,, , t , 
 
 lie entitled to recover, not the full value ot tho 
 
 ! injury done to the laml, hut only for such por- 
 I tions of the damage a.s was incurred l>y them- 
 selves alone. 
 
 (3.) That the tenant in dower was entitled to 
 
 DOWER. 
 
 1. Equity of redemption - A widow Is ^'"^ '>""'" ""^ *'''''^^'* "" "'^' '•'"■' f'"' f'"^^'- f^'''''''^-'- 
 
 entitled t.i (lower in her husliands e.piitv of re- '"'P''^'^-""™* '""1 I'ultivation, and luiriioses 
 (lein|,tion. in a case where she was a party to the ^■"">"'<^ted with such improvements, l.ut not to 
 in.i.t.L'ai.'ef(.r the purpose of releasing her (h.wer. ' «<^11 the wood for otiier and ditferent purpo.Kcs, 
 muler the Provincial .Statute; and her claim will I*" """ l"''"""'^'''' '".i'"y "f ♦''<' leversioiieis, 
 lie pictected liy the Court of Chancery in distri- ' "'"^ ^'''^^ f'"' •''"^•'' '"'"'y ''''^' ''"'' responsihle to 
 Imtin- tile sur|.lus left after foreclosure and .sale i ""' •'evcrsioner. 
 
 ..f the mortgaged premises, and after pavn.ent of *-*-^ ihMUnit,.) That an action will lie 
 the inciuulirances to which she was a party. • "^'"'"'*t '^ 1"''*1««ih1 jointly with his wife for waste 
 
 1 eonnuitted liy the latter hefore tiieir intermar- 
 
 ColliiiK V. Slorji il al., Axmws, 1-11. 
 
 2. Evidence to support action for The 
 
 ; riage. 
 
 (.">.) That \V. H. H., the purchaser, acting as 
 
 , , , , , , , , he did. under the aiitiiority of the tenant, was 
 
 (Uwascil liusliiiiid of piaintitt occiiiiied land un- . , , , , , " , 
 
 , ' , ' not chargealile for waste liy the reversioners, 
 
 (ler an au'ieemciit to jturcliase. which was not 
 
 slHiui, 1„ iiave ripened into a title, and was not , ''^""'' '' "'■ ''■ ''''"''■■' '' "'- •' ^'- '^^ ''•' ■*""• 
 
 sigiuMl (ir shown to have lieen ratilied, or acted | 
 
 uiKin hv the parlies having the leixal title to the •"»• ^hcn A. purChaSCd landS SUbJCCt tO 
 land. The plaint iin.rotight action for dower '''"'"• "^ '""^^ '•'•-'"-' n"'rtg((gcd in fee to I!., 
 against the defendant, who lield po.ssession. j ''"'''• ^'"'^ "''"'f ''""■'^'' """''• ""^ •''' "^'"""'^ 
 
 wliicli was not shown to lie wrongful, Imt failed i *^" ,, , ,, ,,,,-, .,-,., ,.,- 
 
 ..,...,,, , . , . , , , , , . , JlrAiiliiir v. Mcdilrraii, 'J llioin., A'l,. 
 
 to nlciitify the land of which her husliand had ' 
 
 had iiosscssioii. as the lot deserilieil in the writ. 
 
 Verdict for ilefeiKhmt sustained. ^ ,,.„„ ,ands A WidOW Is dOWabIC In 
 
 huh, I V TI,o)ii,.so,i, :i R & C., ,S(i. t|,i^ pnnince of wild lauds. 
 
 The extent to which wood may lie cut hy a 
 
 3. Notice of demand— Requisites of— widow, or any one claiming under her, on wild 
 
 Adtice of demand of dower need not specify hy landi^, assigned to her hy way of dower, before 
 
 metes and hounds the land out of which dower the jiarty is guilty of waste, must he left to the 
 
 IS smight. discretion of the jury, under the direction of the 
 
 Allans V. 11,1,, /son, -JOld., 178. Court. Defendant, under the authority of the 
 
 tenant in dower, cut down hardwood in a tield 
 
 i' Tenant In, waste by - The tenant In of eight or ten acres, which he fenced and cul- 
 
 (loHci- of wilderness land having, with the con- tivated, rendering it more valuable than in its 
 
 sent of C. R., one of the reversioners, sold all original .state, and also cut a valuable knoll and 
 
 the hardwood timber growing upon the land to other trees outside the Held for .sale, liavingpaid 
 
 ". H. H., and allowed the same to be removed the tenant in dower .*{)(» for the privilege of 
 
 by the purchaser, contracted a second marriage doing so. For the former the jury uc(iuitted 
 
4e7 
 
 DYKE LANDS. 
 
 468 
 
 liini ; for tlie latter tlii-y awardctl .4,*)<) ilainagus. 
 Vcnlict BUHtaint-d. 
 
 Tihis t'/ nl. V. Ifaiiiri, '2 R. & ('., .J4'2. 
 Hut Hi'o Revised Statiitea (r>t|> surios), lap. 
 94, sec. ««. 
 
 DRAINAGE. 
 
 1. \o right to use drain -Injunction — 
 
 Vlierc till' duft'iidant had no drain ieadini^ from 
 premises to the coimiinii sewer on tiie street, 
 and the phiintitV prevented al! access to a ilrain 
 on iiis own proi)erty tlirough wiiich the water 
 might flow to tile sewer from defendant's 
 proj)erty, lint defendant proved no title or 
 rigiit to use such drain, the Court granted an 
 injunction to restrain dofemlant not oidy from 
 jtennitting Ids wa.ste water to flow on plaintitl"s 
 pro))erty, Imt frf>m receiving water from the 
 city water works until a suitable drain was con- 
 structed, the evidence showing that the iutro- 
 du<.tion of such supjily, in the absence of a 
 suitable drain, occasioned an overflow on plain- 
 titf 's premises. 
 
 MoU V. Jiurm, R. E. 1)., 135. 
 
 2. Right of drainage into public sewer- 
 '•? '^ CORPORATION, 12. 
 
 I made, was not a free agent, but that the assign- 
 [ ments were void, as having been procured hy 
 i duress, and must be set aside. 
 ' JoiK't ft nl. V. Johns if nl., 20 N. S, R., 
 
 (H R. &(i.), .178; 
 9 C. L T., til. 
 
 On appeal in thr Snpniw Court of CiiiKuh, 
 Held, atlirming the jiulgnicnt of the ('oiirt 
 below, that the nature of the proceedings luid 
 the evidence clearly showed that the criMiiniil 
 process was oidy used for the purpose of getting 
 S. to Montreal tr) enable the creditors to put 
 pressiu'e on him in order to get their claims 
 paid or secured, and the transfer made by the 
 father under such circumstances was voiil. 
 Shore ii et n/. v. Jones e.t nl., 1,") S. C. K., :)!)». 
 
 DROITS OF ADMIRAITT- 
 DROITS OF THE CROWN 
 Sec ADMIRALTY. 
 
 DURESS. 
 Duress, conveyances procured by, set 
 
 aside — M. J. S. made an assignment to T. M. J. 
 in trust, for the benefit of his creditors, subject 
 to a preference in favor of J. M. S., his father, 
 for a large amount. M. J. S. was arreste<l at 
 the instance of Montreal creditors from whom 
 he had purchased goods a shoit time previously 
 to the making of the assignment, charged with 
 having procured goods under false pretences. 
 
 As a condition of procuring his son's release, 
 the father was induced to make an assignment 
 of his preferential claim for the benefit of the 
 creditors, an<l also to assign for the same pur- 
 pose, and for the purpose of defraying the 
 expenses of the son's arrest, a mortgage which 
 he held on the property of one T. M. 
 
 Held, that the father, imder the circum- 
 stances under which the assignments were 
 
 DTKE LANDS. 
 1. Title to, acquisition and transfer of- 
 
 Dcfcndant ami three others, proprietors of dyke 
 lands in Onslow, agreed to build a breakwater 
 in front of their lands, for the purpose of re- 
 claiming certain land covered by navigable 
 water. The works having been destroyed liy 
 freshets, defendant, in consideration of tlie 
 repayment to him by M. of the money expended 
 by him, agreed to transfer to M. his interest in 
 the undertaking. M. having assented ami piiid 
 the amount stij)ulated, operations were renewed 
 in 18.")1, and shortly after, as the result, land 
 began to form. In ISfi.S, M. conveyed his inter- 
 est in the new foi'mation to plaintiff', who, with 
 the others, built a dyke around it, and received 
 a quarter of the grass. Defendant allowed tiie 
 plaintiff and the other parties to expend their 
 labor in making the property valuable, without 
 objection, for eleven years after the agreement 
 made with M., when, for the first time, he 
 claimed an interest in the new lanil allotted tn 
 M. and by him conveyed to the plaiutiti', and 
 committed the tresspass complained of. It wns 
 argued on behalf of defendant, that the actimi 
 of trespass could not lie, as the fee was still in 
 him, the transfer to M. being invalid, having 
 been made by parol, and there being no convey- 
 ance in writing, as required by the Statute of 
 Fraiuls. 
 
 Held, that defendant, when he entered into 
 the agreement with his partners to make the 
 breakwater, and commenced the work, made 
 himself liable to an indictment for a nuisance 
 for obstructing navigable waters, and, conse- 
 quently, could neither acquire title himself to 
 the new land nor transfer any to M. , but that 
 plaintiff having been in possession when the trei- 
 
469 
 
 EASEMENT. 
 
 470 
 
 passes W'jrc committed, was entitled to a verdict, 
 witli niiiiiiiial diima^cs. 
 
 Mahon V. M<C'itJ/y, 1 N. 8. D., 323. 
 
 2. Sn; fi/vo, ASSESSMENT, III. 
 
 DTXAMITE. 
 Indictment for keeping- 
 
 SV' CRIMINAL LAW, 13. 
 
 EASEMENT. 
 
 1. Acquisition of right of way by enjoy- 
 ment of- Unity of possesaion — Pleading — In 
 
 oidi'i' to aLi)iiire a riglit of way by enjoyment 
 f(ir twenty years it must lie i)rove<l tiiat the 
 I'liiiniant lias enjoyed it for tiie full period 
 wniiied, as of riijhf, anil if tiiere has been 
 unity iif pii»ses.sion for all or any part of that 
 time, the claimant will not have enjoyed an of 
 ri<iht the easement, but the soil itself. A de- 
 fence on tliis ground to a claim of right of waj', 
 1.1 stilHciently j)ut in issue l)y a plea that the 
 cliiinmnt is not entitled to such riglit of way as 
 nllegcil, 
 
 Qmori', whetlier a tenant at will has such an 
 estate iis will entitle him to sustain an action for 
 obtructing a riglit of way. 
 
 Smith V. McDonald, 3 R. & C, 283. 
 
 2. Covenant for quiet enjoyment of water 
 
 privilege-*'^. COVENANT. 
 
 3. Created by express agreement— Pre- 
 venting sale of land— Legality -An agreement 
 liotween tlie vendor and vendee in a convey- 
 ance of land, after setting out the parcels, pro- 
 viiling " that any distance which may remain 
 weatwanlly to .1. street shall never be heretvfter 
 sold, but loft for the common benefit of Ijoth 
 parties, and their successors," does not create a 
 servitude in contravention of any rule of law, 
 l)ut creates an equity binding on the successor 
 in estate of the vendor, so that the person who 
 lian tlie estate of the original vendee is entitled 
 to come into a Court of Kquity for its assistance 
 to remove a structure placed on such land. 
 
 McLean v. McKay, L. R., 5 P. C, 327 ; 
 
 29L. T.,352. 
 
 I imported below. 
 
 *« Created by express agreement— Con* 
 
 struction of agreement for— J. G. and P. C, 
 adjoining proprietors in the Town of Liverpool, 
 under wliom plaintiff and defendant respectively 
 
 claimed for the purpose of settling disputes that 
 had arisen between them concerning the line 
 between their lands, entered into a written 
 agreement in the year 18()(), settling tiie line in 
 dispute and containing the following clause : 
 " And it is hereby furtiier agreed by and 
 between the said J. (!. and P. V. that the dock 
 between tlieir wharves on the eastern aide of 
 the aforesaid line of separation shall forever 
 remain oj)en as it now stands, that is to say, 
 that neither of them shall t'.ll it up with wiiarvea 
 or other incumbrances wiiereby the convenience 
 of t le same may be damaged to either party. 
 From the date of the agreement down to 1808, 
 J. (i. and those holding under him had the 
 exclusive use and possession of the dock, when 
 •lefendant asserted a right to use it under the 
 '■ agreement and placed vessels therein. Plaintiff 
 brought trespass, and on the trial a verdict was 
 found in his favor. A rule having been taken 
 out to set the verdict asiile, the Court were 
 equally divided. 
 
 .Sir \V. Young, C. J., was of opinion that a 
 u.se in common of the dock not having been ex- 
 pressly declared, it could not be inferred. 
 
 DesBarres, J., was of opinion that tiie exclu- 
 sive use by J. ({. and those claiming under him, 
 prechnled any inference from the clause of the 
 agreement recited as to the existence of a ten- 
 ancy in common. 
 
 Johnstone, E. .T., and Wilkins, J., were of 
 
 opinion that tiie rule for a new trial should be 
 
 made absolute. 
 
 Snow v. Morton, '2 N. 8. D. , 237. 
 
 On appeal to the Priry Council, 
 
 Held, that the effect of this agreement was to 
 create an easement tiiat the dock should remain 
 o])en, as it then stood, for tlie convenience of 
 either party to use it as a dock ; and that if it was 
 intended that one party should have a more 
 limited right tlierein than the other, such 
 limited easement should have been created by 
 express words. 
 
 Morton v. Snow, 29 L. T., m\. 
 
 5. Deed creating, comes within the Re- 
 gistry Act — Plaintiff purchased in 1872 a pro- 
 perty adjoining defendant's property, and to the 
 north of it. In 18.')9 Caldwell, who then owned 
 the northern property, granted by deed to 
 defendant the privilege of piercing the south 
 wall of his building, carrying his stove - pipes 
 into the flues, and erecting a wall above the 
 south wall of the building to form at that 
 height the north wall of defendant's building, 
 which was higher than plaintiff's. This deed 
 was not recorded until 1871, and the plaintiff's 
 solicitor in searching did not search under 
 
471 
 
 EASEMENT. 
 
 472 
 
 Oh fip/iKi/ to the Sii/iriiiK Court of Caiiuiln, 
 
 Calilwt'U'ti niiiiu! aftiT tho rogintry of tlio dpcil flitcli throiij^li ])laintifI"H land to carry otT wntcr 
 by whirl) tlu' title pasxiMl out of CatiUvi'irH [xim- from Ww lii){li\vay, ami for tilliii{{ U]) aiiotijcr 
 HcsNion in iHtli', and did not, tlu'rcfort', olirn'rve diti'ii in the iiighway, and tliurchy cauMing water 
 tlif deed civuting the uawi'nu'iit in favor of to How ovur plaint itf'H land, 
 defendant. Uefemlant's northern window was; Defence. — To the tirst charge : That the for- 
 go cloHu to plaintitf's wall that it was plain to nier owner of plaintilTV land helped to coiistnut 
 one narrowly olineiving it tiiat defendant had the highway, ami agreed to the ciit'ing of tiie 
 no Heparate northei'n wall, and tiic defendant's ilitch for carrying f)tr the water from the liigii- 
 northern wall above ))laintitl"M Imilding resting way; tiiat the ditch had livun in use for timt 
 tijMin plaintitr's soutjiern wall, was ohvioiis to purpose for tiiirty-scven years; tiiat oociisidMul 
 anyone h.oking from tlie op|)osite side of the filistriu't ions during that time iiad lieen renKived 
 street. I>y the Surveyor fo" tile time being; tliat the 
 
 //(/(/, tiiat tlic deed creating the easement : ditch follows tlie nututal course for tlie llnw nf 
 came within the Registry Act as " afl'ecting j water from tlie higliway ; and that the iiittiii^' 
 lands," tliat jilaintitl', however, was not hound ' eom|)laiiied of was a cleiiring out of ohstnutioii* 
 hy the registry of itinlSTI, although previous wliidi plaiiitiir liad placed in the ditcli a slwrt 
 to his purchase, tlie title having passed out of time hefore. The defence to tiie Bccoud com- 
 Caldwell in l!S(i2, hut that ]>laintilt' must he plaint was, tliat the other ditcli was a ilitili 
 held to have liad notice of the easement as tlie alongside the highway, too deep to he safe, am! 
 cncroaehinents were jilainly visible. jthat tlit^ defendant, as such surveyor, partially 
 
 lioxH v. Jlniilt r, '2 H. & (!., 44. \ tilled it up, as he had a right to do. At tlie triiil 
 
 'the .ludge excluded the evidence of defeucu to 
 the tirst complaint, and a verdict, iiiitlcr his 
 
 Jl<hl, that the continuance of illegal burdens direction, passed for iilaintitf. 
 on plaintiH's projierty since the fee had been //p/,/, Hrst, that the long use of the drain 
 acquired by him « ere, in law, fresh and distinct through plaintiff's land was evidence from wl'icii 
 trespasses against him, for which he was en- ,1 j,„.y nii{.'lit infer a dedication by deeil, tlumgli 
 titled to recover damages, unless he was bound , there was evidence of an assent to sucli use more 
 by the license or grant of Caldwell. 1 than twenty years ago. .Second, that tiic dcluii- 
 
 2. That the deed creating the easement was | ,iant had a right, as such surveyor, to close .v. 
 an instrument iv(|iiiring registration under the , niti.,. the ditches along the highway, as a private 
 jirovisions of the Nova .Scotia Registry Act (4th projirietor of laml in the same situation niiglit. 
 Kev. .Stats. \. S., c. 70, sees. !» and 1!») and was Verdict set aside accordingly. 
 
 defeated by the prior registration of the subse- ' '\'\^^, fdHowing pi'opositioiis were affiniiPil :- 
 (pient purchaser's conveyance for valuable con- , That as to water not howiiig into defined oiuiii- 
 siileratioii, and therefore from the date of the nds the flowing does not warrant the piesunip- 
 registration of the conveyance from Caldwell to tion of a grant. 
 
 the party through whom plaintitF claimed that \ That as the owner of the high land cannot 
 the deed of grant to defendant became void at collect such waters in drains and precipitate 
 law against the grantee in said conveyance and tlu^m on the land of another proprietor l)cl()», ;i 
 all parties claiming iliroiigh him. grant may be iiresuined where this has Ini'ii 
 
 3. That to defeat a registered deed there done as of right for twenty years, and tliis nut- 
 must be actual notice or fraud, and there was no withstanding the Prescription Act, cap. \W, 1^- 
 actual notice given to ])laintitl' in this case, such ,S. , 4tli scries, sec. '2S. 
 
 as to disentitle him to insist in e(|uity on his,; That evidence that use began prior to twoiity 
 legal pi'iority acquired under the Statute. , years by consent is merely evidence against ti;- 
 
 I'tr (iwyime, ,J., (//.•<«•»//«;/.— That upon the presumption of a grant, and may he met by 
 pleadings as they stood on the record, the , counter-evidence that the use was afterwards as 
 question of the Registry Act did not arise, and ; of right, kc, for twenty years, 
 that as the incumbrance complained of had been That the easement by parol to the estalilisli- 
 legally created in 18.")!», its mere continuance did ment of an artificial course, made more tlw" 
 not constitute a tresjiasa, and that the action as < twenty yeai's ago, is not conclusive that tlie su''- 
 framed should not be sustained. ! sequent twenty years' use was not hy giant. 
 
 Itoss V. Huiitir, 7 S. C. R., 289. i because such a right could not be conferred I'V 
 
 parol alone. 
 
 6. Highway — Drainage — Dedication of That a dedication to the public of an ease- 
 watercourse— Public easement— Adverse en- 1 ment may be inferred from the like ciroHiiistaii 
 joyment — Prescription — Action of trespass ces as warrant the inference of a grant in the 
 against a Surveyor of Highways for cutting a case of a private person enjoying such casement. 
 
m 
 
 EJECTMENT. 
 
 474 
 
 Thiit thf surface iiiitl ditclifH of a liife'liwiiy AHiniRMl on appeal to tlie Supreme Court of 
 
 niiiv l>f altfie.l without lialuUty to an action l>y Caiuula. _ 
 
 •,..., AV/f V. /i/a'*', U S. ( . K., <40; 
 
 tlif iiiljaccul i.iopnetorH. i - / • i -i' -iiwi 
 
 //acWvoM V. Ilarri'ow, 4 K. & (!., 338. i t . U. I., .««>. 
 
 :. Kleht of waj -Obstruction of-Kstop- 
 
 pel-i'liintill'iind one of tlie defemlantH divitled 
 ii lot of livud, of wliich tliey were tenants in 
 cimunoii, into two erjual parts, and executed a 
 Ixmil or iiyreeiiuMit in the penal sum of .*2tM), for 
 till' piirpiwe of securing toeacii of tlie parties the 
 fico w.xe of idl roads existing at the time on eitlier 
 (if tiiii lots of land. I'laintitr having brought an 
 action for an alleged obstruction of quo of the 
 niiiiln referred to, and having j)roveil no title 
 aput from tlie l)ond, 
 
 H'ltl, tliat the action was wrongly brought, 
 pliiintitF's remedy being liy action on tlie Ixmd. 
 
 Alio, that plaintitl'waa est<ipj)ed liy thoagree- 
 muiit from setting up prescription, but defen- 
 (iiiin WHS not estopped from saying that tiiere 
 was no grant. 
 
 I'll' 'I'iiompson, .T. — The words in the bond 
 dill lint amimnt to an easement, but, at most, to 
 a liuouKO or covenant not to obstruct the way. 
 
 Alio, plaintiff might have proved a title to tlio 
 way, independent of the agreement. 
 
 Whitman v. Jonen ft a/., 5 R. & (1., 443. 
 
 I 
 
 8. Right to maintain drains leading A'oni 
 
 private property to drains on public highway 
 —Obligation of municipality to preserve pri- 
 vate rights. 
 Su: CORPORATION, 12. 
 
 9. User of a way to which a party has 
 
 no legal right not sufficient to entitle to dam- 
 ages for an obstruction— Reformation of deed 
 — Joinder of parties — Damages — Plaintiff 
 souglil to recover damages against defendant for 
 obsinicting him in the use of a way adjoining 
 plaintiff's property, which he claimed to enjoy 
 by virtue of user by himself and those under 
 whom he claimed for a period of upwards of 
 folly years. No use? as claimed was proved at 
 till' trial, but it appeared that plaintiff had nol 
 legal right to use the way as his own, nor any ; 
 license from the owner to do so. It was conten- 
 ded that, admitting this to be so, plaintiff being ! 
 in posaession of the way, or the user thereof 
 could maintain his action against defendant, 
 who was in no better position, for interrupting 
 him in tlie user. 
 
 ffelil, that the mere uiser by plaintiff of the 
 way in common with other parties, in the 
 absence of any legal right, would not enable 
 him to recover damages against defendant for 
 obstructing the way. 
 
 Ells V. Mack, 7 R. & G., 222; 
 7 C. L. T., 326. 
 
 10. Water power - Interference with — 
 
 Defendant demi.sed to the plaintiti's a water power 
 derived from the Dartmouth Lakes from whicii 
 water was also drawn for the supply of a caiuil. 
 The power deiniseil was to be of no less extent 
 than plaintiffs then enjoyed, and as much more 
 as defendant could spare after jiroviding the 
 water necessary for the working of tlie canal. 
 Defendant having opened the sluice of the dam, 
 which retained the water, not for any needed use 
 of the canal, 
 
 //f/d, that the water so expended was not 
 expended within the exception in favor of the 
 canal, and was a violation of the plaintiffs' right 
 to all the water with that exception. 
 
 Alw, that defendant, on an application for 
 attachment for bread, of injunction, could not 
 be permitted to raise the (jue.itiou whetlier tlie 
 interference on his part was or was not practi- 
 ! cally injurious to the plaintiff's. 
 The. Star Mauii/acturiinj Comjiany {Limilal) 
 V. Fairbanks, 3 N. S. D., 40. 
 
 EASTERN EXTENSION RAILWAT- 
 See CONTRACT 31. 
 
 EDUCATION- 
 See PUBLIC INSTRUCTION. 
 
 EJECTMENT. 
 1. Administrator cannot revive action in 
 
 ejectment where freehold involved— In eject- 
 ment where the title to the freehold is involved 
 the administrator of the deceased plaintiff is not 
 entitled to revive the action. 
 
 Henry v. McNeil, 2 Thorn., .•5j7. 
 
 2. Administrator purchasing estate— 
 
 Deed to him valid in law — The father of defen- 
 dants died intestate, and administration was 
 taken out by Donald McLeod. Previous to 
 intestate's death a judgment had been recorded 
 against him, which was revived against his ad- 
 muiistrator, and the real estate sold thereunder. 
 i At the sale, the administrator purchased the 
 
475 
 
 EJECTMENT. 
 
 476 
 
 land, anil subsequently executed a deed of it to 
 the plaintiff. IVevious to executing this deed, 
 the iKlministi'iitor ohtained a letter 'if license to 
 sell the real estate, under wiiich the same lands 
 were sold and bought in hy plaintiff, to wiiom 
 the ailniinistrator gave a deed. The consider- 
 ation ex))ie«seil in tiie deeds was not actually paid 
 hy plaintiff. Both the deeds to him bore date 
 same day, and were recorded tiie same day. 
 Plaintiff brought ejectment against the occupiers 
 of the property, and they defended on the gtound 
 that phiintiff had no title, as ho claimed through 
 the administrator, who was debarred l)y the 
 relatiim he bore to the real estate from giving 
 any title to it. 
 
 H(l(l, tliat although botii deeds could be set 
 aside in equity, on application of the lieirs or cre- 
 ditors, yet, until they were set aside, the heir.s 
 could not resist a recovery in ejectment, and that 
 the verdict for plaintiff must be sustained. 
 
 McLeodw (links ct uL, 1 X. S. D., 257. 
 
 3. Administrator purcliasing the estate- 
 Deed valid at law — The plaintiff, as adminis- 
 trator to Hugh McLean, sold certain lands at 
 public auction to one Harding, giving him a 
 deed thereof, and on the same day, Harding re- 
 conveyed the same lands to plaintitF. Tliere 
 was no evidence to show that the plaintiff did 
 not act in good faith and for the benefit of the 
 estate. Plaintiff brought ejectment against 
 defendants, who wore brothers of Hugli McLean, 
 and were in possession of the property, and they 
 resisted, on the ground of his having no title, 
 contending that he could not acquire title 
 through himself as administrator. 
 
 Held, on the principle of McLeod v. Qil/iefi, 
 
 1 N. S. I)., 257, that pLvintiff's title was valid 
 
 at law. 
 
 Smyth V. McLean el al., 1 N. S. D., 310. 
 
 4. Conventional line— Conflicting evidence 
 
 — New trial — Plaintiff contracted in 185.3 to 
 purchase several lots of land, and, as being part 
 of one of these lots, took possession of the hand in 
 dispute, erected fences on it, and built a house, in 
 which he resided for several years. At an early 
 period he pointed out to Forbes, the adjoining 
 proprietor, the line by which he claimed, and ex- 
 plained the reasons and evidence on which he did 
 so. After defendant had continued in undisturb- 
 ed possession for six years, Forbes executed a 
 deed of land, embracing that occupied by defend- 
 ant, to plaintiff, the latter being cognizant of all 
 the facts. Plaintiff then brought ejectment. On 
 the trial a question arose whether the piece of 
 land which Forbes was disseised passed under his 
 deed, and the presiding Judge, on motion, per- 
 
 mitted the name of Forbes to bo added us a, 
 co-plaintiff. A verdict having been found for 
 plaintiffs, a rule was taken out to . t it aside, 
 and for a new trial, on the grounds that the land 
 of which Forbes was disseised eoiiid not pass 
 under his deed ; tiuit the amendment at tlie 
 trial, by adding the name of Forbes as a plaiiititr, 
 was made improperly, and on other grounds. 
 Tiiere having been conflicting evitlence as to a 
 conventional line, and tiiere being reason to 
 believe that the wlude case might lie nioro 
 thoroughly brought out in second trial, for this 
 cause, as well as other principles involved, tlie 
 rule for a new trial was nuide absolute. 
 
 Wheelock v. Jfori-iioii, 1 N. S. 1),, .'i;)'.'. 
 
 5. Deed taken to Infiint son of party wlio 
 
 goes into possession — Son after coming of age 
 deeds to third party — Objection, that deed 
 made by party out of possession, overruled— 
 l)efen(hint agreed, in 18(>2, to exchange land 
 witii J. L. and W. L. He deeded certain lands 
 to them, but instead of taking a deed from tliem 
 to himself, he had the deed made out in favor 
 of ills infant son, R. F. J. This deed was re- 
 corded on the day of its execution, though the 
 grantee, R. F. J., was not present at its execu- 
 tion, and there was no evidence that it was ever 
 delivered to him personally. Defendant wunt 
 into possession at once and continued in posses- 
 sitm until action brought. R. F. J., shortly 
 after coming of age, in 1875, executetl a deed of 
 the land to plaintift, who, after making demand 
 of possession, brought an action of ejectment 
 against defendant. 
 
 Held, that the deed to R. F. J. conveyed title 
 to him, and that the non-suit ordered on the 
 ground that R. F. J. was out of possession wlien 
 he deeded the land, defendant holding adversely, 
 could not be sustained. 
 
 Wilkins, J., dUsentimj. 
 
 Gammon v. Jodrey, 2 R. Si, C, .114. 
 Questioned in McDonnell et al. v McMnxftr, 
 
 3R. &G.,37i'. 
 
 6. Defence as to part of land claimed- 
 
 Discontinuance by plaintiff as to residue- 
 Costs— Where a defendant in ejectment first 
 pleaded denying the plaintiff's right to the pos- 
 session of the whole of the land claimed, but 
 afterwards obtained leave to amend his plea, so 
 as to limit his defence to a jxirt of the land only, 
 and the plaintiff then signed judgment for the 
 residue, and discontinued as to that part cover- 
 ed by the plea. 
 
 Held, that the plaintiff was entitled to costs 
 on his judgment for that portion of the land 
 disclaimed by the amended plea, and the defen- 
 
477 
 
 EJECTMENT. 
 
 478 
 
 (lant to juilyiiifiit with costs for that portion for ; contnulicteil parol evidence that I'lirdy liad 
 mIucIi he (Icfeiuk'd. ! piircliasod tliu land for the licnelit of defendant's 
 
 Fui'i-lmiiks V. /Mil, 1 Old., l.'{. fatiier, wlio had paid consideraidu sums on ac- 
 count of the i)urchase money. After the death 
 
 I. Defence describing a different lot to "f <l'--ft'><li"«t's father, I'urdy agrce.l to convey 
 that claimed- Where in ejeclnienl tiie defend- »''« '"'"I t" pl'imtdl ; and it was ni ea.lenco 
 ant, hv his plea, purports to defend for a part of , ll"it plaintiff held the land for tiie l.enetit of 
 tiiolanaclainiedintiieplaintifl'swrit, luainfact '•*'"f'^"'li"i<. t'"'" i" poi-st^^^i"!' "f tiie property, 
 (lesciil-cs a ditlcrent lot, the plaintiff will he ; that he was to give him a dee.l f)f it when he 
 Liilitled to judL'Mient. ] paid liini wiiat he owed iiin\, and tliat plaintifT 
 
 l>,r Bliss, J., in MrMast<rx v. flmhnm, 2 p*''" t" '"^^'e ^lie hay and lialf tlie pasture for 
 Tiiomson, 417. If such plea be put in with the i"t'-'''t-'«<- ; '"'t "" writings pa.ssed l)etween tiic 
 ilesinn of misleading, I will endeavor to make P"'''«S' I'laintifT receive.l part of tlie hay ami 
 
 tiie attorney ))ay ihe costs out of his own jiocltet. 
 Hadly v. Sherman it at., i Tlioni., 416. 
 
 8. Disclaimer Where defendants In eject* 
 
 nieiit were not ])iit in possession hy tlie plaintitl's 
 
 (e.veculors) or their testator, 
 
 //</(/, tliat the doctrine of disclaimer did not 
 
 apply. 
 
 I'attirioii. U III. V. MvPhirxoH it at., 
 
 1 R. kC, p. IHt. 
 
 id pasturage on the pro))erty, and before action 
 was brought defendant tendered to him the 
 i principal money. 
 
 Held, that the equitable defence, based upon 
 the above facts, must j)revail. 
 
 Mllner v. liiiKjuno'l, K. E. 1)., 12.3. 
 
 13. Injunction to restrain action at law 
 
 where claim raised therein had been adjudi- 
 cated upon on application for writ of assist- 
 ance — The defendant, .1. ('. .•<. Miller, mortgaged 
 certain property to W. ('. King, whose executors 
 
 9. Ejectment and foreclosure, distinct , , , , , r n u- .1 
 
 ,. c, . I. J 1 i- 1 1 1 foreclosed tlie mortgage, J. \\ . K.ing, the sur- 
 
 proceedings— Service of declaration and order ^ f , ■ , 
 
 , , , - ^ • ^1 .., viving executor of tlie mortgagee, I )econuug the 
 
 —In toreclosure of mortgages in the Supreme ° " 
 
 rtgages in the ^up 
 Court, by ejectment, the ejectment and fore- 
 closure are distinct proceedings, and the latter 
 may he set aside for irregularity, without dis- 
 turbing the former. 
 
 The declaration in ejectment must be served 
 upon tiie tenant in possession, and the order of 
 foretlosure and sale upon all the parties having 
 equitable interests in the premises. 
 
 Maytitw V. l<\n, James, 108. 
 
 10. Evidence conflicting — Verdict sus* 
 
 tained— Action of ejectment between adjoining 
 proprietors, the questions being entirely matters 
 ut fact, and the jury having found for the plain- 
 till, although there was sufficient evidence to 
 justify a verdict the other way, if they had 
 thought fit, 
 Hdd, that the verdict should not be disturbed. 
 Watkf.ret al. v. Bayem, S N. S. D., 270. 
 
 11. Identity of lot- What sufficient proof 
 
 of— Proof that witness knows the land in dis- 
 
 purchaser at the Slieiifl's sale. Defendant re- 
 maining in pos-session of the mortgaged premises 
 a rule ni'ii was granted for a writ of assistance 
 to put the purcha.ser in pos.session. No cause 
 being shewn tlie rule was made absolute and a 
 writ issued, wider which the property was de- 
 livered to ,1. W. King. Defendant then brought 
 an action of trespass against the iSherift' and J. 
 \V. King, whereupon a rule tii-ii was taken for 
 an injunction to restrain the action. Defendant 
 opposed the rnle, contending that the property, 
 of which he had been in possession, was not in- 
 cluded in the mortgage ; but, after a full hearing 
 of the cause, the rule for the injunction was 
 made absolute. .J. \V. King then put the plain- 
 titf, Mosher. in possessif)n of the land, and the 
 defendant, J. C. 8. Miller, brought an action of 
 ejectment, setting up tlie claim which this Court 
 had previously decided against him, namely, 
 that the lands claimed were not included in the 
 mortgage. The present suit having been insti- 
 tuted to restrain the action, 
 
 Held, that the defendant could not resort to 
 pute ; that defendant lives on it, with proof of ^^,3 action of ejectment at com.non law, and 
 two of the boundaries, held sufficient proof in ' t^ere claim the hind to which this Court had 
 
 ejectment of the identity of the lot claimed. 
 
 McXair v Munro, James, 340. 
 
 12. Equitable defence — Verbal agree- 
 ment as to payment— Tender before action — 
 
 decreed that he was not entitled, and that the 
 action must be restrained. 
 
 ^fo8her V. Mit/er, R. E. D., 279. 
 
 14. Judgment recorded against party to 
 
 1 laintiff brought action of ejectment, under a '< whom property conveyed merely as a con- 
 deed from one Purdy, but it appeared from un- 1 duit pipe to convey property to a third party 
 
479 
 
 EJECTMENT. 
 
 480 
 
 — Property not bound — Where a deed of i-eal 
 estiite WUM jnupiired and executed to give title 
 to |{., l)iit K. failed ti) coiniilete the iiuifhiise, 
 and subse(juently H. and <!. purchased the real 
 estate, 'Mid by agreement between the parties, 
 the deed to R. was recoided simultaneously with 
 a deed from 1{. to H. and (!., in action of eject- 
 ment by purchaser at Slierilf's sale, untler 
 judgment recorded against R, previously to the 
 recording of the al>ove conveyances, 
 
 Jldd, that R. was a mere conduit pipe to 
 convey title from tlie vendors to H. and (J., and 
 tliat tlie judgment against him did not attach to 
 the real estate in (juestion. 
 
 Oii;„ v. Lynch, '2 R. & C, 400. 
 
 15. landlord and tenant — Estoppel — 
 
 Plaintiff's testator C. C took a conveyance of 
 land from M. ]'. M., paying tKX) for the land 
 at the reijuest of defendants .1. L. and R. L. 
 who had ])reviously occupied and continued to 
 occupy the land. Plaintiffs having l)rought an 
 action of ejectment to recover the land from the 
 defendants, pi'oduced two witnesses who swore 
 that defendants had paid money to and worked 
 for C. C. in payment of rent ; while one of thf 
 defendants J. L. swore that defendants never 
 paid rent but interest, and that they wei-e to 
 repay the t'KK) to C. C, but that no time for 
 repayment was fixed. 
 
 Held, by the Court— acting under a rule nisi 
 to set aside a verdict taken by consent —with the 
 power of a jury to draw inferences from the 
 facts, that the relation of landlord and tenant 
 existed between C. C and the defendants J. L. 
 and R. L., and that conseciuently they were 
 estopped from disi)uting liis title. 
 
 Crow ef al. v. Loirdin el al., 2 R. & C, 78. 
 
 16. Lien for unpaid purchase money- 
 Notes given in payment— Indorsee of notes 
 does not obtain lien — S. P. bought land from 
 H. F., and paid for it, but did not take a deed 
 of it. Subse(juently S. P. agreed to sell to 
 M. v., Sr., but by agreement among the parties 
 the deed was made out to M. C. , Jr. S. P. was 
 never paid for the land, but took notes from 
 M. C, Sr., which he subsequently assigned and 
 indorsed to the father of J. P. 
 
 Held, in an action of ejecCment brought forty 
 years afterwards against J. P., who claimed the 
 land by virtue of an assumed lien, that no lien 
 ever existed in S. P., as he never had a title, 
 and that even if there had been a lien, and even 
 if it could have been transferred by the indorse- 
 ments of the notes from S. P. to the father of 
 J. P., it could not pass to J. P., but to the ex- 
 ecutors of his father. 
 
 Mtayher et al. v. Paidin et al., 1 R. & C, 79. 
 
 17. Limitations, Statute or-1806, c. 12, 8.9 
 
 -Omission of in 4th R. S.— I'laintiffs' tcstntdi 
 took a deed from tiie father of dcfendaiil.s in 
 184(i, bnt the grantor continued in jiosM'-ssjon 
 until his death, and his children after him diiwn 
 to the time of action hrougiit in 1S(J9. 
 
 IL/d, that the .Statute of Limitations was a liai- 
 to the action of ejectment, and that section !) di 
 the act of ISOti, cap. 12, giving parties five years 
 after the ])assing of that act to bring action, not- 
 witiistanding the expiration of twenty ycais, 
 <lid not apjily, having ceased to exist and heen 
 omitted in the R. S., 4th series, whicli came iiitu 
 operation in May, 1H74. 
 
 I PatlersoH et hI. v. Mrl'herxnii if iil., 
 
 I I R. & ('., llti. 
 
 18. Mortga&;or cannot maintain ejectment 
 
 after failure to perform conditions in mortgage 
 without re-conveyance — The plaintiff in cjcft- 
 ment claimed under a sheriff's deed to liiiii a" 
 
 I trustee of his sister M. and ''Or children. On 
 the same date on which the deed was cxeculeil 
 plaintiff executed a mortgage of the .same lamls 
 to C. H. M. B., the condition of which was tiiat 
 if the principal and interest were paid in ihh- 
 year, the mortgage should be void. The prin- 
 cipal and interest were not paid until after tliu 
 expiration of the year, when they were paid liy 
 
 I M. , and an assignment of the moi'tgage made to 
 her children, J. M. and F. M. 
 
 Letters of guardianship of the children were 
 granted to the defendant, who collected the 
 
 I rents of the property. 
 
 Held, that the conditions of the mortgage not 
 having been fulfilled, in the absence of any 
 
 I re-conveyance to the plaintiff, the latter coukl 
 iu)t maintain ejectment. 
 
 j Mahon v. Gannon, 7 R. & (i., '2\S. 
 
 19. Motion to stay proceedings in action 
 
 against Officers of the Crown refused— l>y Re- 
 vised .Statutes, Chapter lid, section 1."), "The 
 financial and general management " of the Nova 
 Scotia Hospital for the In.sane is "vested in the 
 Commissioner of Pnblic Works and Mines," and, 
 by section 47 of the same Chapter, the title to 
 the property, and the lauds l)elongingor attaciied 
 to the same, " is confirmed and vested in the 
 Commissioner of Public Works and Mines, for 
 the time being, and his successors in office, in fee 
 simple for the purposes and uses of sucli hospi- 
 tal." An action of ejectment having been brought 
 to recover possession of the premises, a motion 
 was made to set aside the writ and proceedings 
 or for a perpetual stay of proceedings, on tlie 
 grounds: — 1st. Because such action will not lie 
 against the officers of the Crown or (iovern- 
 ment, and cannot be maintained agaiust them 
 
481 EJECTMENT. 482 
 
 ill luspect of sucii inopurty 11.S that hirmI fcjr. 23. E(|iiitablc defcncc In ojcclment- 
 
 •Jnil. lieciiuso such iictioii ami jiiocueiliiigs tan- I'laintiflF in ojt'utiuuiil i:laiiiie(l titli; uiidor a deed 
 
 iiui lie taken against tliu Crown ami its oHiceis. from iii.s father. Defendant claimed iimler an 
 
 .'tril. Huoanse tlie dufendants hold the property unregistered agreement for a twenty years' lease 
 
 siii'il for lierein as the oHieer.s of the Crown and j)rir)r to tlie deed, of wiiich, he alleged, i)laintitl' 
 
 (icivciiinicnl anil not otherwise. had notice. Tlie deed was recorded. 
 
 The motion was refused. //</(/, tiuit tiic defence, if good, was an ei|uit- 
 
 S'liih/i, tiiat where the Act vests the jiioperty ahle defence oidy, and coidd only l)e pleaded as 
 
 ill tlie otlicers of the Crown, ejectment to test such. 
 
 tlic title will lie. j ^^f".l:l V. ''^'iiihl, 5 R. & ( !., 490. 
 Kiariiiy v. Vrci/mait tl a/,, 4 R. & (i., '2'28. 
 
 I 24. Exchange of lands by verbal agree- 
 
 20. Xon-Joinder of parties entitled ^h «^'f~^'^'^^'^^^'^^^''^^^^^^^ 
 
 ,r 1- i i ■ 1 'iM Defendant limited his defence to a portion only 
 
 tenants-iii-common— Verdict auatained - 1 hree , , , , i i i i i 
 
 ,., , . ,.„. . .. c • i ^ of the land soUL'lit to he recovered, and i)lea(le(l 
 
 of the iilaintins m an action of ejectment were " r i i i i 
 
 , , , ^1 i-^i 1 , .1 • c an eiMiitalile iilea to tlie etlect that lie had 
 
 ilcarlv siiowii to he entitled to the i)ossession or '■ ' ■.,,,. • • 
 
 ,,',,., , , . ... obtained iKKSsessiou of the land in question in a 
 
 tlie liiiicl claimed, us tenants-iii-conimon with , ' , , . , i • -ir, 
 
 , , .^ ■ • I • ^1 ..• verhal exchange between him and plaintitl s 
 
 otlier.s who were not joined lu the action us , " ... 
 
 , . ,.u- father, in consideration of a certain otiier piece 
 
 iiliuntitis. I , , , . ■ p 1 1.1 ■ 
 
 ,,,,.,. ^, ,. . ,. , , , . of laud transferred by iiiiii to the father, rlain- 
 
 //<''(, that tiie verdict, Miiicli was for plain- ; . , ■ , , <• r i 
 
 . .„ , , . , . . , ^, 1 ii . lift replied, that the exchange arose out ot talse 
 
 titts, ciiuld r.ot lie set aside on the ground that ' ', ° . ,.,<., 
 
 .1 . , . .^ • • 1 and fraudulent misrepresentations of defendant, 
 
 (itlu'r teiiants-in-coinmon were not joined, or , ' ,. , , ,, , , 
 
 ., . ., 1-. 11 » i . .1 •• : and was afterwards repudiated ami canceUed by 
 
 that the verdict did not state the iiroportioii in , . - , . , 
 
 ,. , , . ...r .-,1 1 .1 1- r his father. It appearing from tlie evidence, 
 
 wlikli iilaiiitifs were entitled, the practice of , , , , . . ,. 
 
 ,,■ f . ,.„. • • ,, • ' t ,, tiut after the exchange both parties ininiediate- 
 
 tlu.t (ouit ditlering in tins resiiect from the , ° . '. , . 
 
 ,,,.,.. ; \y entered into iiossession of their respective 
 
 l-.iiirli.'ih jiractice. I •' ' ■ , , ■ • i 
 
 ,.„■ , , ^, • , ,, 1 , ^, I lots, that defendant exercised dominion over the 
 
 Uli^ it a'. \. Colonial Marht Comiiauy, ' ' , ,., , 
 
 ., ., „ „ .„. land in e(mlrover.sy for tifteen years up to the 
 
 " i time of action brought, and including five years 
 
 , subseiiuent to tiie exchange during which tiie 
 
 21. Devise to executors -Power to sell father live.l, that tl.e father died without ever 
 given tliera, but no interest -They cannot i,,,,.;,,^, ,„.,,,^. ,j„^. .uteinpt to reclaim it, that 
 maintain ejectment- A devise that executors i,,„ plaintiff was 'in possession of the land trans- 
 .slimilil sell lauds, investing them with u power to £^.,.,.^,1 j,, ,,i^ f.^.g,. .^t the conimeiicemenl of the 
 sell, hut conveying to them no interest, will not .^^tioii, and that defendant bud not in fact made 
 
 inable them to maintain ejectment. It can make ,„,y f.^ij,^, ,„. fpaudulent niisrepresentutions as 
 111) ilitleience that the power is to execute pro- alleged 
 
 per cmiveyances, us well as to sell. , //,,/,/' tji.^t 1,;^ e(juitable plea was established, 
 
 mUkims (I at. V. My,,., 2 N. .S. D., \",. that he was entitled to retain all the land trans- 
 ferred to him by plaintiff's father, and conse- 
 22. Equitable defence — Fraud — Plead- quently that there should be u general judgment 
 ings— 111 an action of ejectment, defendant in his favor. 
 
 plwuleil an eijuitable plea, setting out certuin The finding of fraud by the jury held iiii- 
 (leeils as the links in his title. At the trial, ; warrunted. 
 
 pliiiiititr sought to attack one of these deeds on \ litll v. Carriifhtr-., '2 N. 8. 1)., 1. 
 
 tlie ground that it was without consideration 
 
 ami a fraud on third parties. 25. identifjing land lu dlspute-Vcrdlct 
 
 If'Ifl, that plaintiff should have replied, al- for defendant in ejectment upheld where there 
 legiiig the fraud, and not having so pleaded, was no evidence to identify the land in plaintiff 's 
 could not adduce it in evidence. | deed with that in dispute. 
 
 The defendant had been for some time in pos- Wood v. Smith, 4 R. & (i.. 37. 
 
 session of the property in suit, ami had made 
 
 large payments to the parties through whom he i 26. Limitations, Statute Of- Deed by In. 
 
 claimed, beside outlays in improvements. fant— Removal of disability— R. M., in 183."), 
 
 liM, that having by his plea placed himself i conveyed a portion of his land to his sons, W. 
 
 uniler tlie equitable jurisdiction of the Court, he and K., and about the same time allowed them 
 
 sliimld be protected to the extent of his actual to enter into possession as tenants at will of the 
 
 payments and outlays. balance of his projjerty, including the house in 
 
 Kiunear v. Hati-kon, 2 N. S. D., 78. | which he had resided. R. M. died in 1844, 
 
 16 
 
483 
 
 EJECTMENT. 
 
 484 
 
 leaving several cliiUlren, of whom plivintiif was 
 the youngest In 1H47, the rest of tlie lieirs, 
 inchiiling p'.iiintili', wlio was tlien undei' age, 
 conveyed to \V. & K. all tlieir interest in the 
 property. In ISTO tlie plaintitV lirought s\iit for 
 a portion of the lands in (juestion, alleging that 
 the <lee(l heing executed during her minority, 
 was alwolutely void ai.d of no etl'ect. 
 
 //</»/, that although the possession of W. & K. 
 must he deemed to he adverse from the year 
 1847, when tlie heirs united in giving them a 
 deed, and that therefore plaintitt's right was 
 barred on that ground, yet that under see. 9 of 
 20 Vie., chap. I'i, having brought her action in 
 ISTlt, anil therefore within five years from IStiO, 
 she was entitled to i-ecover. 
 
 Jfi'Kiniton d al. v. liroilii', 
 •A'S. S. 1).,410. 
 
 27. Party in possession agrees to pur- 
 chase—Cannot be ejected except on proof of 
 breach and demand of possession— H. Mc I). 
 went on certain land as far back as IS'J.'i. In 
 1848 he entered into an agreement under seal 
 with A. IJ. McU., attorney ofG. Mcl>., who had 
 the legal title to the land in (piestion, to pay for 
 it. 
 
 H. McI). made payments under the agreement, 
 cleared some of the land, and built on it. .Sub- 
 secpiently, in 18.').S, A. R McU. took out letters 
 of administration of the estate of ({. McD. , ob- 
 tained license to sell from the Court of Probate, 
 in March, 1859, and in May, 1859, aohl the land 
 in question, under the license, to plaintitf, who 
 was aware of defendant's possession and of his 
 having made payments under the agreement and 
 improved the land. 
 
 Held, that assuming thivt defenihmt could be 
 treated otherwise than as a debtor to the estate 
 for the purchase money, the plaintiff, who had 
 brought ejectment, nnist shew clearly that de- 
 fendant having been lawfully in possession under 
 an agreement to purchase, he had become a tres- 
 passer by repudiation of the purchase or breach 
 of the agreement on his part and demand of pos- 
 session, and that in the absence of such evidence 
 the rule to set aside the non-suit must be dis- 
 charged. 
 
 A. McDonald v. H, McDonald et al., 
 2R. &C., 135. 
 
 28. Possession, adverse— The adverse pos* 
 
 session of a widow centui que truat, as against 
 the trustees, will enure for the benefit of her 
 children, being also ceatuu que trtufent, and can- 
 not be set up against their title. 
 
 Archibald v. Bloiji, Jamef , 307. 
 
 29. Possession, adverse Inipcrlul .id, 21 
 
 Jas. 1., c. 14, in force in Nova Scotia -The 
 ("rowii cannotgrant lands, of which a. subject iiiis 
 been in adverse po.Hsessicm for twenty yiais, 
 without lirst re-investing itself with tlie pci>si's. 
 sion l)y ortice fo\ind. 
 
 The Imperial Act, 21 James I., c. 14, is in 
 force in Xova Scoiia. 
 
 Wiierc a party who iias been put into pusses- 
 ."ion of frown lanils, by a Crown .survtym 
 whom he imid for the survey, and who ran \\\v 
 base line of the lot, sighted the side lines ;iiiil 
 nuirked two of the coi'neis, afterwards sells with- 
 out writing to a third (larty, who goes into pus- 
 session claiming the whole lot, such possession is 
 «(/iTrs(, to the Crown, and is co-extensive with 
 the limits of the h)ts, and not conlined to tliu 
 actual occupation. 
 
 Where a son of such third party went intn 
 possession of the lot two years after his fatiiei's 
 death, made improvements, and died on it, leav- 
 ing a widow and children ^some of whom were 
 the present defendants), who contitnied in jkis- 
 session, and extended the ;niprovements, 
 
 IIilil, that the [lossession of such son, iunl dI 
 his widow and children, was adverse to tlie 
 Crown, and co-extensive with the limits of the Int. 
 
 /\*- Dodd, J., that such possession being liy 
 dixniit, was a ])ossession under color of title. 
 
 Uiiiackt; v. Dick-<oii, .James, 287 ; ■>''■"" v. 
 Hcnder.'<on, 2 Thorn., 115; (li/>hoiii v. Kilihuj, 
 M. .S. M. T., 18til, reviewed. 
 
 Smyth V. Mr Donald it al., 1 Old., -74. 
 
 30. Possession, adverse -Interruption of 
 
 —Claim of title— W., under whom defendiiut 
 claimed, entered into possession of a lot of lanil 
 in 1834, under a judgment recovered against T. 
 in an action of ejectment, and continued in pos- 
 session for a period of thirty years. In 18401. 
 conveyed to the plaintiff, who in the followiiij; 
 year went upon the lantl and had it sin-veyeil. 
 
 Ihld, per .Johnstone, K. .J., Dodd, J., ami 
 Ritchie, J., that the entry and survey by tlie 
 plaintiff were not a sufticieut interruption of the 
 adverse possession of W. to prevent the opera- 
 tion of the Statute of Limitations. 
 
 /'erRitchie, J., Sir W. Young, C. J., donbliiuj, 
 T. having been out of possession and W. in pos- 
 session under his judgment when the former 
 made his deed to the plaintiff, no title pMseil 
 under it. Sir \V. Young, C. J. , while concurring 
 with the majority of the Court as to defemlant's 
 possessory title, reviewed the conflicting ilocu- 
 mentary titles of the plaintiff and defeiulant at 
 length, and referred fully to the tov/nship grants 
 in which the property in dispute was included, 
 He was of opinion, under all the circumstances, 
 that there should be a new trial. Wilkins, J., 
 
485 
 
 EJECTMENT. 
 
 486 
 
 Wiis also rif opinion tliiit there rIkiuM l>e iv new 
 
 ti'iiil. 
 
 I)islmm-<<t a/, v. Sluy, -2 X. S. I)., .TJT. 
 
 Oh (iji/iki/ /o fhi Prinj Cuniiri/, 
 
 Till! pliiintifT iind tl.e ilefemlant set up rival 
 i.lniiMs to lands under two separate sticsinis of 
 title, i'aoh<k'rived from a distinet grant fi'oni the 
 Clown. The plaintifTs grant was in 1708, and 
 the title fiipin that jMiint wan perfect; liut the 
 (inly material aet of ownership on whieh he relieil 
 was an entry upon j»art of the lands in IHS'J hy 
 T., against whom a judgment in ejectment was 
 iifteiwanls given, and who thereupon i'elin(iuish- 
 eil ])iissessioii. The defendant's grant (which 
 tlie plaintiir questioned as void for uncertainty) 
 was in ITtil. The title was in some respects de- 
 fective, hut under it there had lieen continuous 
 p(j.sse.vsion since ISO,"), uninterrujjted except I>y 
 the aet of T. 
 
 JI'/il, that even supposing the grant of 1701 
 hail for uncertainty, the evidence of possession 
 under the defendant's title was sufhcient to raise 
 a presumption of a valid grant. 
 
 titid, also, that the ejectment recovered 
 against T. and his sidjseipient giving up posses- 
 sion were evidence of adverse possession hy the 
 ilefenilant sutiicient to bar the plaintitT 's title 
 under the Statute of Limitations (Acts ISOO, 
 cap. I'i). Technical desseisin of the claimant is 
 not necessary to create adverse possession ; for 
 pos.se.ssi(in is adverse, for the purpose of limita- ' 
 tion, where an actual possession is found toe.xist 
 under cireuiiistances which evince its incompati- 
 bility with a freehold in the claimant. 
 
 DtsJiart-e.'^ <t a/, v. Shet/, 'iS L. T., o9'2 ; 
 ' 'i-i \y. R., 273. 
 
 In a case in which the facts and law appear to 
 be entirely one way, their Lordships will make 
 the presumptions which should properly be made 
 by 1 jnry, without sending the case down for a ' 
 new trial. 
 
 lb. 
 
 31. Possession, adverse, to defeat Crown 
 
 grant must be twenty years— Lien of judgment 
 on after acquired property— In 1807 the Crown 
 granted to one Scott a lot of land, of which defen- 
 dant had been in adverse possession for ten years, 
 and in 1870 Scott conveyed said land to defen- 
 dant hy deed, which was duly recorded. In 
 May, 1857, plaintiflFs recovered judgment, which 
 was duly recorded, against Scott, under which 
 the land in dispute was sold, and purchased by 
 plaintiffs at the Sheriff's sale. 
 
 Held, that the adverse possession of defendant 
 did not prevent the Crown from granting the 
 •and to Scott, as such possession, in order to 
 have such effect, must be defined, actual and 
 
 ' continuous for tirmiij i/iar", and that, although 
 
 Scott's deeil to defenchmt was duly recoriled, 
 
 the land, although aci|uired after the judgment 
 
 I recorded in lS."i7, was hound by the judgment 
 
 the moment it was granted to Scott. 
 
 Loidsliiirii Land t'oiii/taiii/ v. 'J'lif/i/, 
 4 R. &(;., 401. 
 
 32. Possession, adverse Verdict— Piain- 
 
 titl's sought to recover |M)sses'sion of a lot of land, 
 ])ortion of an island that had been granted to 
 sev<Mal ])ersons, their grandfather being one of 
 the grantees, but there was no evidence to con- 
 nect him with the particular lot in ((uestion. He 
 held no assignment of it and had never claimed 
 j it in his life time, though he had lived forty 
 I years after the i)assing of the grant, and many 
 years after those under whom defemlants claimed 
 had been living ui)ou it. T'he <l-jfendants had 
 been in possession of the lot for from sixty to 
 eighty years j)revious to action brought. 
 
 JI(/(/, that the verdict for plaintiti's should be 
 set aside and a new trial had. 
 
 Condon <■( al. v. Daclv. it a/., ',] N. S. 1)., 17'2. 
 
 33. Possession, adverse -Wilderness lands 
 
 — Conflicting gi-ants-In an action of ejectment, 
 plaintifl's claimed under a grant from the Crown, 
 which pas.sed in 177.S. The description in the 
 grant incluiled the land in (piestion in the action. 
 Defendant derived his title from a grant, which 
 passed in 1 784, and in which the land to be taken 
 under it was described as lying to the north of 
 the land in the grant of 1773. The land taken 
 possession of under the latter grant was within 
 the lines of the former grant. One of the original 
 grantees under the grant of 1784 conveyed by 
 metes and bounds the lot, which he had drawn 
 at the division of the grant, to a purchaser who 
 conveyed by the same metes and bounds to the 
 grandfather of the defendant. Defendant's title 
 was by descent from this grandfather. Original 
 grantee had, in 1793, occupied and cultivated a 
 portion of land in dispute. All the subsequent 
 possessors had also occupied and cultivated a 
 portion. Part within the metes and bounds was 
 still in a wilderness state. 
 
 Held, such an adverse possession, even of the 
 part in a wilderness state, as to bar claim under 
 grant of 1773. 
 
 Lemees of Lawtion et al. v. }Vhitman, 
 1 Thom., (2nd Ed.), 208. 
 
 34. Possession, as against wrong-doer, sur< 
 
 ficient to sustain ejectment — Occupation by 
 son, permissive — Evidence of mere prior pos- 
 session in the plaintiff affords a sufficient pre- 
 sumption of title in him to enable him to recover 
 in ejectment against a wrong-doer. 
 
487 
 
 EJECTMENT. 
 
 4h8 
 
 Possession ))y iluleiuliuit of a ))iirt ol llie liiiul tcil the arj,'iiimnit to l)o postpoiiuil imlil eviiluiici' 
 of Ills fiiflior-iii-liiw will li('])i-i'Humuil to lieiiiMT- upon Iho point could !po tiiken liefore a foninii.s- 
 missive oii'upiuu'v nnli'ss tliiMi- \)v vi'iy stionj; sioni;r. 
 
 cvidiMKc to siifw ;ui iulvcisf iiossossion. Mtiom y v. Stnijlk, I K. it ('., .'J71. 
 
 1.1111, 11/ Smith 1 1 III. V. MfKiir.ii , .laini's, 'J'JS. I 
 
 38. Possession, constructive Demand of 
 
 35. Possession by descent - Wliat proof possession Occupation by son premim.il per 
 nucessjiry in ejectment Rectification of deed missive— 'I'lic running of one of the side lines 
 
 - Where 11 plaintitl in ejei'tiueut claims the pos- of u large tract of land to which the plaintitFhad 
 session of lands liy descent from a deceased ten- ' no title, hut of a part of which he was in actual 
 ant for years, lie nnist jiroduce either letters of occujiation, hehl a sullicient act of possession to 
 proliateor of adndnistration.asheisnotentitled I enalde a jury, with other evidence, to infer a 
 to such poasession as heir. | constructive possession of the wlude tract. 
 
 'J'he Court will rectify an error in a deed where , Where the plaint itF and defen<lant in eject- 
 theie are clear identitication and i)roof of what nient resided together upon the land, and defen- 
 land was intended to he conveyed, and where the , dant iiad no occupation separate and distinct 
 error has l)cen causeil liy the fraud of tiie party from tiiat of tlie plaintitl", proof of demand of 
 seeking to defeat the deed. I possession previous to action ln'ought held not 
 
 Piitrl V. Piarl, '2 Old., IX necessaiy. 
 
 I The occupation hy a son of a part of lus father's 
 
 36. Possession by purchaser under asrce- ! land will he deemed, in tlie absence of evidence 
 ment - Refusal to accept deed tendered - ! to the contrary, as a permissive occupation. 
 
 Demand — A i)arty who has entered into pos- 
 .sessiou of land under an agreement to jiurchase, 
 and has refused to accept a deed of the land 
 teiidei'ed to him, on the ground that he does not 
 consider the deeil a proper one, has not by sucli 
 
 Plu'hin <•/ III. V. I'hilaii, .James, 184. 
 
 30. Possession -Demand of possession- 
 Verdict for part of land claimed -I'laintitfs 
 bnmght ejectment to recover possession of .'fOd 
 
 a refusal so changed the character of his position ,i^.,,^.j, „f j.,,,,,^ claiming under two deeds made 
 as a tenant at will, as to put himself in the j i,y the adnduistrator of one (J. McI). under a 
 position of a trespasser, and cannot be ejected iiei.„se to sell, granted by the Probate Court in 
 
 without demand of possession. 
 
 Leirer et a/, v. MrCiillorh, 1 R. & C, 315. 
 
 31. Possession— Ciaim of titie by— Argu- 
 ment postponed to obtain evidence on materi- 
 al point — One 1). ,M. occupieil certain lands from 
 
 October, 18.V). Defendants claimed, as to 'JK) 
 acres, under a deed made in April, 18.m, hy tlie 
 attorney of (!. McD., then living, or supposed to 
 be living, in Australia, and, as to ]W acres, by 
 pos.session, though they had gone upon llie lot 
 under a lease from (!. Mel). 's attorney, wliicii 
 18tt;{ to 183.S, when he left them by will to his : le^se exi)ired in May, 18,-i.->. 'I'he jury lindiiig 
 son, A. M., subject to certain life interests. The ' f,„. i),u plaiiitills as to the lot of IM) acres only, 
 son, A. M., mortgaged the property in 18.S8. /f,/,/^ Wilkins, J., illsimthin, that tiic vei- 
 The mortgage was foreclosed, and the property j jjct could not be disturbed under the evidence, 
 bought by plaintitl' under the order of fore- \ ff,/,i^ „/,„^ that no demand of possession was 
 
 closure and sale. The plaintitl' continued, by 
 himself and others, to e.xercise acts of owner- 
 ship over the property untd action (ejectment) 
 brought. The defendant claimed under a (juit 
 claim deed made in 1803 by one R. M., who had 
 gone on the property as a trespasser some 
 twenty-four or twenty-five years before action 
 
 necessary as to the 1(K) acres. 
 
 Iltlil, aim, that a verdict for a part of the land 
 claimed in the writ, specifying the part, was 
 
 good. 
 
 McDonald el al. v. McDonald <> al., 
 1 R. & C, 420. 
 
 brought, and had built a house on it and lived! 40. PosSCSSion — Evidence Of — VcrdlCt- 
 
 tliere some nineteen years before action brought . PlaintiflTs sister, C. J. , deceased hefoie trial, 
 
 anil also under a grant from the Crown made in 
 1870. 
 
 The Court, acting under a rule giving it the 
 powers of a jury, gave judgment in favor of 
 plaintiff. 
 
 It being discovered, when the rule first came 
 on for argument, that no evidence had been 
 given at the trial with regard to a certain point 
 material to the plaintiff's case, the Court direc- 
 
 let certain premises to J. 1)., one of the defen- 
 dants, in 1869. Her sister, Mrs. G., who was 
 present at the agreement to let, testified that 
 C. J. let the premises "as her brother's property.' 
 J. 1). testified that C. J. "did not let the 
 premises as the property of any one but herself. 
 A letter was put in evidence from plaintiff to 
 his sister, C. J., dated in September, 1868, 
 in which he wrote, " I want you to take posses- 
 
489 
 
 EJECTMENT. 
 
 490 
 
 sioii for me " of till! piviiiise^ in (|Uo.sticm, tlieii 
 ociiipiccl anil clainiiMl l)y otlicr i>iirtifH, and, " I 
 lu'ii'liy a|)])oiiit you my agent for tlie jmrpose 
 aliiivi' iiaiiail," It wan in cviilcni'e also that from 
 l.S.'idto l.sT- l>laintitr"ssiistt'r, t'. .J., lia«lcolk'utf(l 
 rents foi' lliis projierty, (iml acuounted to liim for 
 tlieiii. The juilge who tried tiie eause, in eharg- 
 iiijL,' thi! jiny, told tlieni that " If in tiii.s ease the 
 jilainlitfliad in jHiint of fact, by agent or other- 
 wist', lit the |)r(ii> \v in ([iiestion to the defen- 
 ilicnt, Hiid it' his title to-d ly was the same as at 
 tlif time of such letting, lie was entitleil to 
 recover in this action," ejectment. 
 
 //'A/, that the jury, in linding for the phiin- 
 titr. liMlst lie consideied to h.ive i)assed u])iin the 
 (juestion of letting, and that the verdict could 
 net he disturhed. 
 
 Wilkiiis, .1., i/itii iiliiii/. 
 
 ,/ox/ V. I)cri.-<il III., 1 H. &C., .SI!). 
 
 4t. Possession, requisites of, to maiiituin 
 
 ejectment -Mere iirior possession is sulHcicnt 
 til iiiiiiiilaiii ejectment against a wrong doer'. 
 .'<iicli |iiisse>sinn however, must lie clear and 
 uiici|iiiviical. 
 
 I'' r Wilkins .1. -Such iiossession nnisl he 
 (i]Hii, nutoridtis, exclusive and well delined, and 
 interfered with liy defendant hy force or fraud. 
 
 There nut lieiiig evidence of such possession 
 (111 tlie part of the plaintill's or liiiii under whom 
 they claimed (the mere running of two side lines, 
 the removal of a fence around the land which 
 was wild and uncultivated, the use of a way over 
 it for a cow ])ath liy a third party with the per- 
 iiiissjoii of the plaintilfs' devi.ser, and a eontin- 
 inms claim of title lieing held not to lie sulticient) 
 ainl they having failed to prove a documentary 
 title, the Court, the case having been twice 
 tried with the same result, refused to set aside 
 a seciiiid verdict for the defendant, thodgh he 
 siiov.eil no title whatever. 
 
 Diidd .J., ilis.si iifiiii/. 
 
 SiiiiHi V. MiK( irJi , .Fames, '2'2.S atlirmed. 
 Fmmriii ,1a!. v. Mini, '2 Old., I'O.S. 
 
 42. Possession under agreement to pur- 
 chase -Adverse giant from Crown — Attorn- 
 ment — Consideration for promise to give up 
 possession -Where a party entered into posses- 
 si'm (if land under agreement to purchase from 
 (iii'j rc'iiresenting himself as owner under an allot- j 
 nieiit (if ancient date, I 
 
 AV/i/, that ills title was good as against a gran- | 
 t€e liiilding under grant from the Crown, dated 
 f'liir years after his entry, and setting out fact of I 
 allotment having been made to individual of same \ 
 name as tiie person from whom defendant pur- 
 chased. 
 
 Ill Id y iilin, that defendant's attornment to the 
 les.sor of plaint ill' was, under the circumstances, 
 inoperative, defendant being under the iinpres- 
 sion tliat Miller had a title which, from facts 
 ilihors the grant, and iiiiknow n to the defendant 
 at the time, it appeared he had not. 
 
 Hilil, al<o, that the returning to d«.'fendant il 
 promissory note, given by him to lessor of plain- 
 titl', payable njioii getting a good title to the land, 
 was not a suflicient consideration on which to 
 found a promise to relin(|iiisli the possession. 
 
 Mllld-w Liintij, I Thoni., (1st Kd.), I.S'J; 
 C-'nd Kd.), Kil. 
 I 
 
 43. Possession Verdict sustained -I'lain- 
 
 tiir proved title to land inider two grants from 
 the Crown but never resided on or had actual 
 possession of it, the land having been occu])ied 
 and wdikcd for upwards of tw.enty years liy his 
 father who was ))ut on the place by plaintiH'and 
 partly supported by him. .\fter the death of 
 the father the land was occupied for two years 
 longer by a son who had lived with the father, 
 but was not (iroved to have had any jxissessioii 
 distinct Irom him. The son having died, plain- 
 tiff biduglit ejectment against his widow. A 
 verdict having been entered for plaintiff by con- 
 sent subject to the opinion of the Court, 
 
 //(/(/, that the verdict could not be disturbed. 
 If the possession of the father was not the ]ios- 
 session of the ]ilaintill' and the latter was not 
 entitled to succeed on that grouiid, he was en- 
 titled to recover as heir to his father, the only 
 I'iglit of the defendant being to dower in her 
 husbaiurs share of the land. 
 
 MrDomilil v. .1/c />«/«(/</, ."> R. & (i., •-'ItS. 
 
 44. Possession - Verdict wliere conflict- 
 ing evidence — In an action of ejectment defend- 
 ants relied for their title upon an alleged parol 
 transfer of the property to the husband of K. IX, 
 one of the defendants, and a continuation of that 
 transfer, also by jiarol, to the said E. 1)., at the 
 death of licr husband, about thirty-tive years 
 before action brought. Hut the evidence on the 
 part of the plaintiff went to show tliat the luis- 
 band of E. 1). entered into pos.session of the 
 property as servant to ])laintiff, that it was the 
 custom of ])laintiff to provide houses for some 
 of his servants, ai.d tliat at various times sub- 
 sequently plaintiff had exercised acts of owner- 
 ship thereon. 
 
 /Ii.ld, that the jury having found for the plain- 
 tiff, their verdict could not be disturbed. 
 
 The Judge, in his charge, directed the jury to 
 find for plaintiff, and also re(iuested them to find 
 whether plaintiff had verlwiUy transferred the 
 property, as stated by defendants. 
 
491 
 
 EJECTMENT. 
 
 492 
 
 //('/'/, that iif> olijeution could be taken to tliis 
 charge. 
 
 Collm.'i V. Dohirtyi't a/., 1 N. S. 1)., 164. 
 
 45. Presumption or acceptance of trust 
 
 — Evidence — Tiie (\)urt will not direct iv jury 
 to presume tiie acceptance of a trust created l»y 
 devise when there has been fifty years adverse 
 possession as aj;ainst the trustees, tliere being no 
 evidence of such acceptance, an<l all the facts 
 being opposed to such jiresuniption. 
 
 The Court will not send a special verdict back [ 
 to a jury to decide ui)on a presumption which 
 they would not be justified in finding. 
 
 The advci'se possession of a widow ccxliiin que. 
 
 frn-^f, as against the trustees, will enure for the 
 
 benefit of her children, beinj? also (•p><qiii'< que 
 
 trwiffiit, and cannot be set up against their title. 
 
 Arfhihald v. lilolt, James, 307. 
 
 40. rrcHumption of grant — Amendment 
 
 of writ after trial and argument — Costs — A 
 lot of land was allotted in 1767 to J. B.,' 
 as ajipeared by the drawing or allotment book 
 filed in the Registry of Deeds for the County 
 wherein the lot was situate, and the accompany- ! 
 ing plan, by a card alleged to have been drawn 
 l)y the said J. W. in 1 767 (the date of the allotment 
 book), the canl containing a description of the 
 lot corresponding with that in the allotment 
 book ; and by the certificate of the Registrar of 
 Deeds given by the Registrar to J. ]}., and 
 proved to i)e marked with the Registrar's [ 
 initials. This card and the certificate were j 
 proved to have been continuously and consecu- 
 tively in the possession of J. B., and those 
 claiming under him, and were produced by the 
 plaintifTs at the trial. The block of land allotted 
 by the allotment book contained in the whole 
 180,000 acres, being the whole township. 
 
 Nothing was known of this book but its 
 antiipiity, and the fact of its general acceptance. 
 A grant, which appeared to be a grant of confir- \ 
 mation passed in 17S4, conveying 71,406 acres of 
 the alwve 1 80,0(X). This grant recited a previous 
 grant in 176o of the whole 180,000 acres, and 
 the grantees under this latter grant (of whom J. 
 B. was not one) were all also grantees under the 
 previous grant, and their title and possession 
 were confirmed by this latter grant. This latter 
 grant, however, stated that the graiit of 1765 had 
 not been accepted, nor taken out of the secre- 
 tary's otfice. The plaintiffs were H. J. B. and 
 S. B., and they traced their title from J. B. as , 
 follow! : Deed, J. B. to J. G. B. ; Deed, J. G. B. ; 
 to H. J. B. (one of the plaintiffs) ; Deed, from 
 H. J. B. (the last-named plaintiff) to S. B. (the ' 
 other plaintiff). S. B., it appeared, had con-; 
 veyed the locus to one D. R. , and the deed to ; 
 
 1). R. had been executed and recorded before 
 action brought. The ]>laintiffs' counsel at tlie 
 trial alleged in opening that the action was 
 brought for the benefit of D.R. M., a surveyor, 
 had acted as agent for the plaintiffs, or one of 
 them, or those under whom they claimed, ami 
 the defendants iiad been put in pos.ses.si()ii )iy 
 him fifteen years l)cfore action brought. 'I'lie 
 defendants diil not attempt at tiie trial to prove 
 title in themselves, but relied wholly on the 
 alleged weakness of the j)laintitfs' title. 
 
 Hild, the Court being at liberty to draw the 
 same inferences as a jury might — First thiu 
 under all the circumstances a grant of tlie lot 
 to J. B. in or before 1765 might be presumed. 
 
 Secondly tliat as the possession of the defen- 
 dants was not a<lverso to tlie plaintiffs it diil not 
 prevent the operation of the deed from S. 1}. to 
 D. R. 
 
 Tliir<lly that as there was no pretence of title 
 in the defendants, and the plaintifl's would have 
 been entitled to judgment if D. R.'s, name Imd 
 been on the record, the record might now be 
 amended by adding 1). R. as plaintiff. 
 
 Fourthly, that the plaintifl's under all the 
 circumstances were entitled to the general costs 
 of the cause, neither party to the costs of the 
 trial, and that the plaintiffs should pay tlie costs 
 of argument. 
 
 lioulilkr ei al. v. Knock ct at., '2 Old., "". 
 
 47. Regularity of proceedings prior to 
 
 order to sell real estate under license cannot 
 be attacked in action of ejectment — M. D. 
 died insolvent, having by will appointed four 
 executors. He left a widow, who was iioii com- 
 pos, and five children, the eldest of whom was 
 of age. In 1819 prol)ate of the will was graiitcil 
 to two of the executors. There <lid not appear 
 to have been any citation to the executors or 
 renunciation by the two who were not named in 
 the letters of probate. The two executors, to 
 whom probate had been granted, obtained an 
 order from the Governor-in-Council to sell the 
 real estate for the payment of the testator's 
 debts. The order was granted at Halifax, April 
 28, and signed May 2, 1822, and recjuired thirty 
 days' notice of the sale to be given in I'ictou. 
 A bond was given by the two executors, but no 
 sureties signed it, although the law required two 
 sureties. At the sale which took place on June 
 2nd, 1822, the plaintiff purchased the real estate. 
 He immediately went into possession, and laU 
 off a portion of the land to the widow for her 
 dower. The eldest son took charge of tlie widovr 
 and the rest of the family, and they occupied tiie 
 portion so laid off. After the death of the 
 widow, the plaintiff, in 1856, brought this action 
 of ejectment against the children. The defend- 
 
403 
 
 EJECTMENT. 
 
 494 
 
 mils relieil on the following objections to pliiin- 
 tid's title : — 1st, Order niaile to only two of the 
 cM'outdrN !\))ii(iinte(l by the will. 'Jnil, InHiitii- 
 cifiit security given l>y the exeeutorH. .'h'tl, No 
 sutliciiiit evidence of notice by publication in 
 Ua'.i Hi or by handbills, since it was impracticable 
 t" j;iv(' the iei|uired thirty days' notice, when 
 till' (irder was signed in Halifax, May '2nd, an<l 
 sale toiik ])lace in I'ictou, .Tune 2nd. Tiiere was 
 a vtrdiut for defendants. 
 
 //«/(/, that it ought to be set aside, HuUibur- 
 tDii, ('. d., ilifsmtlini, 
 
 /'ir Bliss, d. The regularity of the proceed- 
 iiif.'s |)ri<>r to the order, it appears to nie, we 
 laiiiiiit here imiuire into. The (iovernor-and- 
 Cmiiicil iiail peculiar and exclusive jurisdiction 
 over the matter, and their order cannot be ini- 
 peuiiicd thus incidentally as long as it stands 
 uiiivvol<i'<l and not set aside. 
 
 Vhiskolm v. McDonald it al., '2 Thoni., 307. 
 
 48. Right to soil ad inedliim flliini vie 
 
 excluded by description in deed. — Verdict 
 cannot be supported on ground not left 
 to the jury — In an action of ejectment, the 
 jury, in answer to a question put to them by the 
 .ludgc, found that plaintitT, in selling the lots, 
 nw of which defendant j)urchased, announced 
 tliiit tiie colored places on the plan, one of wliich 
 wii.s the locus, were streets. 
 
 //'/'/, that the presumjjtion that defendant 
 held ad midiitm Jilum viif was rebuttable by 
 proof of the title being in plaintiff, and that under 
 llic description in defendant's deed designating 
 tiic land, as indicated on the plan, and specifying 
 the iliniensions, which were such as not to in- 
 duile tiie street, the title to the street or any part 
 of it, did not pass to defendant. 
 
 lli'fciidunt, at the argument, relied im a title 
 liy possession, but his pleadings set up only a 
 ilDcuinentary title, and the evidence of title by 
 possession was not submitted to the jury. 
 
 Ihid, that the verdict for defendant could not 
 Ijc sustained by showing that, iinder the evidence 
 dufcmtiuit had ac<piired title by possession. 
 
 Ermt V. Wata-matt, 4 R. & G., 272. 
 
 49. Settlement, acquiescence In -Laches 
 
 — I'liuntiffs, as trustees of public property for 
 Argyle, claimed to be entitled to land alleged to 
 have been granted for a Court House in Tusket 
 Village. The grant of the Village made in 1809 
 did not mention the Court House, but the lot in 
 dispute was set off for a Court. House on the ac- 
 companying plan. In 1858 the same lot was 
 granted to trustees of public property for Tus- 
 ket for public uses; and it was under these 
 grants and the statute, R. S. (4th Series) c. .'iS, 
 that plaintiffs claimed. In 1822 the adjoining 
 
 lot passed to one Crowell, who conveyed it in 
 1H.'{2 to .TanicH Hingay, who took possession 
 more or less of all the Court House lot not actually 
 used for Court House purposes. In 1 M.VJ ejcct- 
 ' nient was brought against him by trustees of 
 public property, Yarmouth, which was uom- 
 piomised, IJingay conveying to the trustees a 
 part of the land then in dispute and plaintiffs 
 paying his costs. This conveyance was recog- 
 nized by the Sessions in 18,")!) ; and in 18()4 after 
 the trustees had again agitated the (piestion the 
 Sessions resolved to reliniiuish all claims to the 
 so-called Court House lot. Defendants bought 
 the lands without knowledge of jdaintiffs' claim 
 at a public sale which was not forbidden by the 
 trustees, one of whom was a purchaser, and tive 
 buildings were erected on it before the plaintill's 
 brought their action. 
 
 Ill-Id, that the e(iuitable principles pndiibiting 
 the disturbance of settlements long ac([uic.sced 
 in and prohibiting a party from lying by and 
 rea])ing the benetit of the expenditure of 
 another's money on his property, applied to 
 the plaintitl's, anil that on these grounds as well 
 as upon others appearing in the evidence the 
 judgment of the Court must be for defendants. 
 Trunte.Hif of I'uli/ic Pro/tertj/ v. Gill Is c/ a/., 
 
 2R. &().,262. 
 
 50. Tenant In common ousting his co- 
 
 tenant. — Action of ejectment for an unilivided 
 moiety of certain lands, defenilant being legally 
 
 I entitled to the other half, but claiming the whole 
 
 and having actually ousted plaintiff therefrom. 
 
 The jury found for the plaintiff, on certain 
 
 I (|ueslion3 of fact submitted to them, their an- 
 swers constituiing a comjdctc ca.se for him, and 
 
 i entitling him to a verdict; but seven of them not 
 being able to concur in a general verdict after 
 four hours' deliberation, the Court f)rdered that 
 
 , a verdict be entered that the plaintiff was en- 
 
 I titled to the possession of one-half of the said 
 
 , lands. 
 
 Jle/d, duhifavfe, that the verdict for plaintiff 
 should be upheld. 
 
 I /'osY. »• V. Fosti-r, 3 N. S. 1)., 310. 
 
 I 51. Tenant in common -Right to recover 
 
 in ejectment — A plaintiff" in ejectment proved 
 to be entitled as a tenant in common, and with 
 a defined interest as such, has a right to recov- 
 er, subject to the rights of the other tenants or 
 their legal representatives, against a stranger, 
 although such plaintiff claims a right of jjosses- 
 sion to an entirety. 
 
 Scott V. McXuft e/ a/., 2 N. S. I)., 118. 
 
 52. Title not derived ft'om Crown, plain* 
 
 tiff must trace to some one who has been in 
 
4Do 
 
 EJECTMENT. 
 
 496 
 
 poaHenaion — Where a party claiming' laml in ! 
 I'ji'i'tnit'iit iliK's iKit (It'rive liix titli' from tlic 
 Crown, liL' is li(»iiiitl to trace it to sonic one wlio 
 liiiH liuen in poMsuMHion of tlic land. , 
 
 Ciiiiartl V. lrn'ii( , .lames, .'{|. 
 
 .W. TlllC - KfrOgnitiUII of— Where the 
 
 (li'femlant, lu'lnj; in poMscsHion of land, agrees, 
 for the sake of peace, to ])urehase any rij,'iit the | 
 plaintitr may have therein, and snlixeiiuently j 
 tinds tliat tlie phiintitt' lias no ehiini, 
 
 //(/(/, not a sutfieient recognition of jihiintiff's 
 title to enalile him to maintain ejeetmeiit. 
 
 MiLioil V. Il'-/.v/i, I'oeliran, S.'i. 
 
 54. Yerdlf t Tor Iniid not clearly described 
 
 will not be set aside — Plaintifl' left to enforce 
 at his peril —Wheie a plaintiff has recovered in i 
 ejectment some poition of the hinds described in 
 liis writ, but it cloes nut clearly iijipcar by the 
 verilict to what portion of the ])rcmises claimed 
 he is entitled, the verdict will not be set aside 
 for uiicertahity, as the Court will not assume 
 that lie will attcni)it tr) recover jtossession beyond 
 what he is entitled to. The verdict is ample 
 authority for tills, and tlie plaintiff must ascer- 
 tain the line at his jieril. 
 
 H(tiiii/fn,i V. /'/'•/./.>■, -A X. S. I)., ST. 
 
 55. Weight of Evidence In an action of 
 
 ejectment the jury found for the dcfcnilaut, and 
 the .Judge refusing a new trial, a rule Wius taken 
 out uni'er the statute. On argument, the 
 weight of evidence being clearly with the 
 defendant, 
 
 III III, that the verdict could not be disturbed. 
 McPhec V. ('ami roil, 3 X. .*<. !>. , 4t)7. 
 
 56. wni-Clalm under- Plaintiff In eject- 
 ment claimed under an alleged last will, a draft 
 of wliich was put in evidence. Assuming the 
 will to have been properly executed, which did 
 not clearly appear, there was no evidence that 
 it was ever seen or certainly known to be in 
 existence from the time at which it was made 
 down to the trial. A verdict having been found 
 for defendiint. a '".'.Ic ♦.tiken to set it asitle was 
 discliarged with costs. 
 
 Hunter v. McDonald, 3 X. S. D., 527. 
 
 57. Will — Mortgage by testator — Fore- 
 closure of — Suit to sell real estate for payment 
 of debts —Decree under— Conveyance by pur- 
 chaser at sale under decree — Assignment of 
 mortgage — Statute confirming title — A. M. 
 died in 183", and by his will left certain real 
 estate to his wife, M. M., for her life, and after 
 her death to their children. At the time of his 
 
 death there were two small mortgages on tlu^ »ai(l 
 real estiite, which were subse(|iu'nlly forednscil, 
 but no .sale was made under the decree in such 
 suit. In IH4I, the mortgages anil the interext 
 of the mortgagee in the foreclosiu'e suit wcii; 
 assigned to one .1. 15. I'., who, in IStit, assigui'il 
 and released the same to M. M. In lM4l, 
 M. M., the administrator with the will of A. .M. 
 annexed, filed a bill in Chancery for the jiiirii'ise 
 of having this real estate sold to piiy tiic dclits 
 of tlit^ estate, she liaving previously appliid in 
 the (iovciiior-in-Comicil, under a statute of tlu' 
 I'rovince, for leave to sell tiie same, wliicii Wiis 
 refused on the ground that siicii leave could iint 
 be granted for the sale of a jiarticidar part of llii' 
 estate, and if the whole estate was sold and tlicii' 
 should be 11 surplus, there woidd be no iiioilc i>t 
 apportioning such surplus among the devisirs, 
 A decree was made in this suit, and the laiiil> 
 sold to M. M. She afterwards couveyiil 
 said lands to the Commi.-sioners of the Luimlio 
 Asylum, aiul the title tiierein i)asseil, by viiriinis 
 Acts of the Legislature of Xova Scotia, to tlie 
 present defendants, a statute having been piisse.l 
 in 1.S74, lontirming the title to the said laiiil.i 
 in the Commissioner of Public Works lui.l 
 Mines, M. K., devisee under tiie will of 
 .v. M., brought an lution of ejectment agiiiii^t 
 the Commissioner of I'ublic Works and Mines 
 and the resident physician of the Liiniitic Asy- 
 lum, which was built on the lands, and in the 
 eoui'se of the trial contended that the sale uinler 
 the decree in the Chancery suit was void, inas- 
 much as the oidy way in which land of ii 
 deceased person can be sold in Xova Scotia i.-s 
 by petition to the (iovernor-in-Cwnicil. Tlie 
 validity of the mortgages and of the proceedings 
 in the foreclosure suit were also attackeil. The 
 action was tried before a .hidge without a jiiiy, 
 and a verdict found for the defendants. 
 
 JIi/il, that the plaintiffs coidd only recover mi 
 the strength of theii own title, and were bouiul 
 to show a title suju'rior to that under wliieh 
 defendants had ])ossession. As they hail not 
 shown such title the motion to set aside the 
 verdict must be discharged with costs. 
 
 Kearnty tt at. v. Cnilman (' n/., 
 
 «R. &(!., {>•-'; 
 6 c. L. T., u;). 
 
 On appeal to the Supreme Court of Canada, 
 Held, affirming the judgment of the Court 
 below, that even if the sale under the decree in 
 the Chancery suit was invalid, the title to the law! 
 would be outstanding in the mortgagee or those 
 claiming under her, and the plaintiff, therefore 
 could not recover in an action of ejectment. 
 
 Semhle, that such sale was not invalid, hut 
 passed a good title, Henry, J. , doubting. 
 
4!t7 
 
 ELECTION LAW. 
 
 49S 
 
 Hthh aUo, tlmt the Stattitc, 4th R. S., o. 3H, 
 ». 47, vistc'l tlie siiiil IiukIh ill tho ik'ft'iiihtiitH if 
 tliry iiiul licit 11 tith^ t(i till' Hiiino lu'fino, Ht'iiry, .1,, 
 
 ihlllhtilltl. 
 
 h'irtnii 1/ V. Crn/muii, 14 S. ('. H., 'A'A ; 
 (I C. F.. T., :«!•. 
 i.iini' til iipiifiil to till' Privy ('miiii'il was 
 rc'fiifieii. 
 
 ELECTION LAW. 
 
 1. l)rlbrr},<i-r.,coniiiiittC(] without know- 
 ledge of candidate or agents -I'lriln'iy, wiii'iv 
 I'liiniiiitti'd witlidiit tile l^iiowledge of the ciiiidi- 
 ilatc or Ills iigfiits, alleuts tlie iiiiin lirilied alone ; 
 it iloi'.' not iiH'i'ct till' eundiiliite ; it Ims* merely 
 the elleet of extingiiisliing tlie vote; mid if there 
 was a scrutiny for the purpose of aneertaining 
 will) had the majority of votes, that man's vote 
 ou^'lit to lie striielv oil". 
 
 Ihiil/ V. Cafuui'hail, it uL, Hns, Elee. Kep., 14. 
 
 2. Bribery and other rornipt nets -Not 
 
 necessary to allege that they were done to pro- 
 cure respondent's election— Acts, 1873, c. 27 8. 
 18, Dora. -Hrihery, intimidation, treating, per- 
 siiiiation, &e., arc terms well known to the law, 
 anil carry w ith them, wliiui used, ii clear iiitima- 
 tiini iif the several otVences at elections intended 
 1(1 lie charged; and the word "hrihery/'used in an 
 iloctiini petition, is construed indepeiideiitly of 
 any statute, to he the giving of money, or some- 
 tiling else "•///( iiili lit to comijit or hvilio an elec- 
 
 tOI'. 
 
 The Statute, LST.'i, c. ■_': s. 18, Doni., does not 
 materially affect what is the law without it. 
 That the acts were done "to procure resjxin- 
 ilent's election " is implied in the charge that 
 such acts were done. 
 Ihult V. Cariiiirlid,/ ft a/., Hns. Elec. Rep,, 14. 
 
 3. Constitution of Court — Contested 
 
 Municipal elections— County Court Judge 
 authorized to hear petition— One Judge, if dis- 
 qualified, may call in another— Power of Local 
 Legislature to define jurisdiction of County 
 Court Judges —Under the County Incoriwration 
 -■Vet of IH81, c. 1 sec. 18, a County Court Judge 
 who is ilisqualitied from trying a petition in a 
 contested municipal election, may call in another 
 County Court Judge to do so. 
 
 The jurisdiction of County Court Judges does 
 not depend upon their commissions, which are 
 only descriptive of the tribunal over which such 
 Judges are appointed to preside, but upon enact- 
 ments of the Provincial Legislature, which may 
 
 deline, enlarge and extend the districts within 
 which the .ludgcM sit, as it sees tit. 
 
 Ci-oin V, MrCnnhj, (t H. & (!., 301 j 
 »iC. L. T.,4,-..S. 
 
 4. Constitution ofEIection Court Right of 
 
 Dominion to constitute- Powers of the Court 
 — Preliminary objections /A A/, /«»• .lames, 
 Q. ('., Henry, (). C., and .lohnston, Q. ('., 
 .Tuilges ad lior, that the Dominion Parliament 
 has )iower under thel5ritish North America Act, 
 ' sec, (12, sub-sec. 14, to constitute a Court for the 
 •trial of election petitions within the Province of 
 Xova Scotia. 
 
 A/so, /«•»•. Tohnstoii, (). (.'., that the jurisdiction 
 of the Court is not the siibject of preliminary 
 olijectioii ; preliminary objections are contined 
 to legal i|Ucstions to be urged against the petition 
 or against any further proceedings thereon. 
 
 A/so, that the Common Law is in full force in 
 Canada, and that an elcctiim may be voided at 
 Common F^aw, although not voidable under the 
 Statute, Doni. Acts, \H~:i, c. 27. 
 
 A//isoii V. (loiii/tji', Rus. Klec. Rep., 8.S ; 
 Cunnron v. McDonm//, Id., 42. 
 
 3. Costs -Election petition set aside with- 
 
 out costs, as petitioner had succeeded on nearly 
 all of the eighteen grounds taken against him in 
 the rule nisi, and the two grounds on which he 
 had failed came fairly under the head of new 
 points of practice. 
 
 Wooilirortli V. Hon/ni, .S R. Sc C, .")71. 
 
 6. lists— Conclusive except Tor causes 
 
 arising after lists made up— Scrutiny confined 
 to such causes— The lists Hnally made up by the 
 Revisers in Nova Scotia appear to be conclusive 
 as to the ((ualificatiiui of the electors, there being 
 no review of their decision, ivs there is in England 
 of that of the Revising Barrister, and therefore 
 it would be only for cause of disijnalilication 
 arising after the lists were made up, that a judge 
 here could scrutinize. 
 Dotill v. Carmichael et a/., Hus. E/ee, Rep., 14. 
 
 7. Municipal elections— Corrupt practices 
 
 at — During a municipal election meals and liq- 
 uors were supplied to voters at a private house 
 in the interest of one of the parties. An appeal 
 from a judgment of a Judge of the County 
 Court refusing to set aside the election was 
 allowed with costs. 
 
 McMi//aii V. McLeod, 7 R. & G., Go. 
 
 8. Municipal elections — Candidate not 
 
 disqualified by being Secretary of School 
 
499 
 
 ELECTION LAW. 
 
 m 
 
 Trustees, tinder section 7, cap. 1, Acts of 
 1881— ,\ jiotitinii was |»ii'sfiiti'il to tlio County 
 Court .) ailgc iigiiiiiMt ttio I'li'i'tion of rexpoiuU'iit 
 as County CouiuMllor, on tlic ftronml that lie was j 
 dis(|ualitit'(I fi'imi lii-in^ ii'faniliiliitc liy virtut: of 
 hist otlii'f iiH .Socri'tury to .School 'rruMti'f.t, and at* 
 such, a I'olUiotor of ho1h)o1 rates in iii.s section. 
 
 Hi Id, rcvurHinj,' the decJMion of the I'ounty 
 Court .Tudj;e, tliat such an othce was not witliin 
 the diM((ualiticationM in .sec. 7, eap. I, Acts of 
 KSHl. 
 
 JMliiror/h V. Ilii-^ir/l, 4 R. iV:<i., 184. 
 
 0. Municipal election Improper conduct 
 
 of presiding otficer — Inconsistent clauses of 
 Municipal Incorporation Act~-.\t a municipal 
 election, at which the defendant was caiulitlate, 
 the election was held at tlefendant's house ; the 
 authorized repieaentative of the other party was 
 excluded. 'I'lie election was conducted hy de- 
 fendant's hcother as jn'esidiny odicer, and his 
 son as clerk ; and i)arties claiming to he voters 
 were excluded from the polling l)ooth. The 
 election was set aside. 
 
 Section 18 of chapter 1 of the Acts of IS.Sl, 
 makes the decisions of the iJudge hulow on (pies- 
 tions of fact linal. Section (i'.t gives ap]ieals from 
 every order and decision of the .Judge. 
 
 Hddy that the latter section nrist prevail. 
 McKllchit V. Morri-iou el nl.,' R. & (i., On. 
 
 10. Municipal election mi aside for Im- 
 proper conduct presiding officer— At a muid- 
 cipal election the presi ling otficer was the son 
 of the defendant. At the close of the poll there 
 was a majority of one in favor of the petitioner. 
 The presiding ofHcer took the iiallotdtox home 
 and counted the l)allots, no one hel.ig iM'esent to 
 represent the petitioner, and on the following 
 day declared the respondent elected. The elec- 
 tion was set aside. The Sheriff nuist he served, 
 if it is intended to proceed against him. 
 
 McNeil V. McNeil, 7 R. & G., 67. 
 
 11. Objections to votes should be stated 
 
 specifically— Allegation in petition that "the 
 votes of divers persons not entitled to vote, Ac, 
 were tendered, and recorded for the respondents 
 at said election, notwithstanding the same were 
 objected to by, and on behalf of petitioner." 
 
 Held, that there ought to have been such a 
 statement as would show, on the face of the 
 charge, cases of illeiially recorded rotes against 
 petitioner. Possibly some of the votes referred 
 to might be bad, some for one cause, some for 
 others, but whatever the cause is, it should be 
 alleged as a notice to the respondent. 
 Douil V. Camiichael et cU Rus. Elec. Rep., 14. 
 
 1'2. Petition description and residence of 
 
 petitioner — I'reliminai'y olijection lliat tli« 
 petition dill not show that the petitioner, wlio 
 was a candidate at the election, resi<led in the 
 1)ominion of Canada. 
 
 //(/(/, that liie ilescription of the petitioucriiH 
 "of I'ictou, in the County <if Pietou," was sutli- 
 cient. That his niidincr, either at the tinu' of 
 the election, or as a jjctitioner, was iniiii;iii'- 
 rial, as a residence in a foreign country wmM 
 not atl'ect his riglit to be returned, or to petitidii. 
 Doiu'l V. Carmirhdel it nl, Rus. Klec. Rep., 14, 
 
 13. Petition — Formal allegations uh to 
 
 election -Petition was headed " In the Klcitiiiii 
 Court. 'I'he Controverted Klection Act, iMT.'t, 
 Klection for the County of Pietou, holden on tlio 
 4th day of Feiiruary, in the year of our Lunl 
 one thousand eight hundred and seventyfniM'," 
 ' and the tirst clause set out that " IVti- 
 I tioner was a candidate at the ab<)vc election," 
 I and claims " that he ought to have been rctuni- 
 led, iStc." The only allegation that the elcctinn 
 I in ((ucstion was "for members for the lloiiso nf 
 I Commons " was contained in paragraphs of tiie 
 ! petition, com])laining that " no legal or piopur 
 alphabetical list of the electors of tiic saiil 
 ' County of Pietou, (jualified to vote at tiie elec- 
 tion of members to serve in the f/omr of Com- 
 mons of Canada, <(•(•., was ever prepaied, Ac." 
 and there was no statement in the petition to 
 'show that the Co\nity of Pietou was in the 
 ! Province of Nova .Scotia or in the Dominion of 
 \ ("anada. 
 
 ' Held, /ler Hon. W. A. Henry and Alex. Janios, 
 Q. C, Judges n(/ Itoc, overruling preliuiiiuiry nh- 
 jections to the petition on the ground of such de- 
 fccts; that the petition sufficiently indicated the 
 election intended to be contested. 
 
 Per James \V. Johnston, Q. C, Judge ail hoc, 
 
 that the petition was defective in not stiUing 
 
 facts to show that the sid)ject matter was witliin 
 
 the jurisdiction of the Court. 
 
 j DouH v. Camiichael et ul., Rus. Elec. Rep., 14, 
 
 I 
 
 i 14. Petition - Heading —Service -Exten- 
 
 ' sion of time— Validity of Controverted Elec- 
 . tions Act — A petition against the return of the 
 
 respondent headed "in the Election Court: 
 j Controverted Elections Act, 1874, &c.," was tiled 
 I in the office of Martin I. Wilkins, as Clerk of 
 
 the Court, and served upon the respondent by 
 
 the petitioner. The rules adopted by the C^ourt 
 I prescribed that the petition should be filed with 
 I the Clerk of the Election Court, and the Act by 
 
 sec. 40 reijuired the petition and notice " with a 
 I copy of the deposit receipt to be served as 
 i nearly as may be in the manner in which a writ 
 
501 
 
 ELECTION LAW. 
 
 502 
 
 of iimmona is servetl in civil nmltorH." Rpb- I 
 iiiHi 'lit (li'iiit'il timt iiiiy I'opy of tli« ilt'poHit 
 ii'icipt liiul lit'C'ii HiTvi'd u|)<iii liiin anil wuh con- 
 tnidiiU'il by tiie petitioiiufH utK<' vit. Mr. 
 Wilkiii'*' ii))p()iiitim'iit wan made liy a reconl 
 (tiilpstiiiitially in tiu-se It'inm : " Hi't'onl of tlio 
 pnitct'ilinyx of tlic Su|tii'iiu' I'onrt of Nova 
 Soiitia as constitutt'd a Coiirt for tiiu trial of 
 tuntiMviTti'd fli'itioiiM liy .STtii Viu,, f. 10, en- 
 titlfil, i'':i.'. Till' I'ouft opened and organized 
 prtsciit, iti', 'riie Court npixjinted tlie I'ro- 
 tliiiiiiitiiry, Martin I. Williins, to be the Clerk 
 (if tiic Court under tiie provisions of tiie statute 
 ill tliiit lieiialf." 
 
 }I<lil, tiiat the Aet -tiie Controverted Klec- ' 
 tioiis Aft of 1S74— was not ullra rin-t, that i 
 iiltliiiiij;li tlie petition would have been more \ 
 pr ijierly iieaded in tlie Supreme Court the 
 lieiidiiij; "in tlie Klection Court" followed by! 
 the words: "the Controverted Klectit-ns Act, 
 1S74," was unobjectionable (or, per Sir Win. 
 Vouiii,', if objec'tionalile, the objection was coin- 
 jili'ti'ly I'lired by tlie rule of the Court discoun- 
 ti'iiiiiuiiig merely formal objections) ; that the ■ 
 pi'titidii had been tiled with the proper otficer 
 luiil iiiuhl not, as the respondent contended, 
 have liecii properly tiled with the Clerk of the 
 Eli'ction Court, organized under the statute of ; 
 IST.'l, as that Court was defunct ; that the ser- 
 vit'o of tlie petition was bad, as it should have 
 been made by the Sheriff, and that the burden , 
 of pi'ddf of the service of the deposit receipt 
 rested upon the petitioner, and had not been ' 
 liiiiile out to the .satisfaction of the Court ; that 
 tiii'se defects were not remedied by the rule as I 
 to merely formal objections, and had not been ' 
 Wiiivod by the respondent ; anil that no circum- 
 stiiiucs had been shown to justify the enlarge- ' 
 mint of the time for service, even assuming ; 
 that the Couri had the power to enlarge it after ' 
 tlie expiration of the time for service limited 
 by the rules. 
 
 '1 he petition was set aside without costs, as 
 petitioner had succeeded on nearly all of the 
 eigiiteen grounds taken against liini in the rule 
 "Mi\ and tlie two grounds on which he had fail- 
 ed came fairly under the head of new points of 
 piuctice. 
 
 Woodworth v. liofden, 3 R. & C, 571. 
 
 IS. Preliminary objections - Disqualifica- 
 tion of petitioner — Recriminatory charges — 
 Ky iireliminary objections it was alleged that the 
 petitioner, who petitioned as candidate and elec- 
 tor, had been guilty of corrupt acts in connection i 
 with the election, and respondent prayed that i 
 evidence might lie taken upon this charge, and j 
 that if sustained the petitioner should not be 
 permitted to proceed any further with the peti- ' 
 
 tion nr take any objection to the evidence of the 
 respondent. 
 
 //(/(/, that preliminary objections arc contined 
 to legal objections and arc in fact in the nature 
 of deni'irrer ; that they are to b. objections to 
 the form and siibstanciMif the petition, objections 
 which, if they prevailed, would render useless 
 any eiiijuiry into tiie merits, and are therefo''e to 
 be urged in a summary manner to jirevent the 
 necessity, aiul avoid tiie exjiense at tending a pro- 
 tracted trial before a iludge in theCounty. The 
 only ijuestions to be witlidrawn from the Judge 
 at the trial are legal i|ue.stii)ns. He is the sole 
 judge of the facts and the merits, an<l with his 
 jurisdiction this Court may not iiiterfei'e. 
 
 'Pile Court, sitting to hear jireliminary objec- 
 tions, Ihw no power to call witnesses before it, or 
 to send a dudge into any County to try facts and 
 report for its adjudication. 
 
 Where the i'es|)ondent does not claim the seat, 
 recriminatory evidence is inadmissible. His 
 right to petition is not atlected by any course 
 pursued by him at the election, and cannot im 
 the trial be ini|iiireil into. 
 
 A candidate may also petition as an elector. 
 llihtiani V. Titji/iir, Kus. Klec. Rep., til ; 
 Don// V. Varmirhacl il al.. Id., 92. 
 
 10. Preliminary Objections -Illegal votes 
 
 — Objection to— Allegation in petition— The 
 petition stated that certain illegal votes were 
 recorded for and on behalf of the petitioners. 
 
 Objection " tiiat it is not stated that the 
 alleged illegal votes were counted for the respon- 
 dent." 
 
 Hi'itl, pir Hon. W. A. Henry, that the words 
 in the petition were sutlicient. 
 
 Further objected that it is not shown "that 
 they were not struck off." 
 
 Hihl, unnecessary to negative thus before 
 hand, what may be alleged and shown as a 
 matter fif defence. 
 
 //('A/, further, that the words "notwith- 
 standing the same were objected to by and on 
 liehalf of the petitioner" must bo construed to 
 mean oljjected to at f/ie iiroptrtimc. 
 Doiill v. C'armkhael et al., Rus. Elec. Rep., 14. 
 
 n. Preliminary objection Too general- 
 Preliminary objection in the foliiwing form 
 "As to the several paragraphs and ^'omplaints 
 of said petition there is not in any of Scid para- 
 graphs or all thereof any complaint sutfic'ently 
 and legally set forth to show any undue ret;'rn 
 or to entitle petitioner to the relief sought by 
 said petition." 
 
 Held, too general. 
 
 Objection "as to the 6th and 7th paragraphs 
 of said petition they contain no charge within the 
 
503 
 
 ELECTION LAW. 
 
 'M 
 
 law oi' Kiiit iitcs rt'liiting to flcctioiiH, and tlitre \h 
 IH) ('('iliiin legal Huflicioiit Htiituinuiit of any <,'oiii- 
 Itluint." 
 
 //<///, loo gfiioral. 
 
 I'icliiiiiii;ii-v iilijiMtion tliiit " tint petition ilif- 
 ffrs Miiitcrially in fmni an<l in unlislanue fioni tliu 
 rc(|iiii<'nients of cliaptcr '2S of tliu Acts of IHT.'J, 
 of tin; Cunaiiian I'arlianiont and tin; ndcM niadi^ 
 thcic'inidfi-and tlicotjitir act^and tin; law in that 
 licliidf, and is wholly insullicicMt." 
 
 Ill III, lo !)(• i(M> general, an it doi.'s not point 
 with siiliicicnt ciMlainty to I Ik; natnro of tin; 
 allrL;c(l ilc'fc'ts. 
 Dniillw Ciirinii-hiiil il (il., Pvus. KIcc. |lcp., \\. 
 
 IN. l>r(>s(>nlatloii of petition Special cir- 
 
 cuinstanct!M, or difliciilty in effecting service 
 Extendin{{ time— hi this ease Mr. .Iiisti((; Kigliy 
 granted an oi(|(;r extending the time of service 
 on an <x parii- application of the petitioner. Tin; 
 |)etition hail hien presented on tin; ."ith of 
 .August, and handed on the Sth of .Aiignst lo tin; 
 ,Sh(;riirio 1h; served. The application to exteinl 
 tlie time, whi(;h was niaile on the Kith .\ngiist, 
 tin; time for- service; having (;xpiied on the lOtli, 
 set ont thill diligent enquiries had lieen madi; for 
 the respondent after- thi; .Sth, hrit it did not ap- 
 ]j<;ai' Ih.il anythirrg had heeri done between the 
 otir Mrid the Slli of .August. On this gr'oiirrd the 
 or'dci' for e.vlernlirrg the time was :ittacked mk 
 havirrg Ihcii irir|)rovid(rrtly giarrled, and the 
 vali<Iity of the presentation also ipreslioned, the 
 petil. in havirrg heerr harrded tothe I'rot lionotary 
 orr tlr(; sti'(;et, who orr tlr(; sanr(; day filed il irr his 
 olliee. .Iirdgrrr(;rrt was delivered hy 
 
 Highy, .(., "ititlr Sept(;nrl)er', ISS-.'.— The orrly 
 grorrirds in the rrile vlsi which, if sirstaineil. 
 woirld entitle r'csporrilerrt to have the petitiorr 
 set asiile, are tho.se urnler' which it was conteri- 
 di'd l)(;for'e nre, that the words " jn-esented "and 
 " pr-eserrlatiorr " irr ss. 7 ^ S of the " l)orrririiorr 
 Coirlrovertcd I'Mectiorrs Act, 1874," had a pecu- 
 liar sigiriticariei;, arrd that the statnte was irot 
 conipli(;d with, rrriless the pelitiorrer, or at least 
 soirre jxtsoii si)et;ially (;ornmissioned l>y him for 
 that pur'pnsf;, attended with tlie petition within 
 the office of the clerk, within the specified time, 
 anil tlrer-e delivered it to the clerk; ami liecause 
 irr this ease the latter- had rei-eived it fi-orrr Mr-. 
 Henry on the street, it was not deliver-ed at the 
 otiice of the clerk, nor was .Mr. Heiri-y empowei-ed 
 to preseirt it, and it he was, that power conlil not 
 he ilelegati;d hy him to .Mr. Holmes, and, thei-e- 
 foie, it had never l<eeir " jrresented to the Court." 
 
 I am uiriilile to arrive at such a eonchrsion ; 
 for it ,s(;errrs to me that tire re(|irii-enieirtH of s-s. 
 3 of s. 8 of the Act have heeir litei-a!ly followed, 
 and the petitioir delivered at the office of the 
 clerk dirriirg office hours. If a petition signed 
 
 liy a ipralilicil |((;titiorier has with his eoriHint 
 heen so deliver-ed, I corrsidei- lK)lh the letter iirnl 
 the spirit of the Act have l>(;en fullilled. Tlii» 
 I constrirctiorr w-ould give a leasoniihle and ordi- 
 irar-y rrrearrirrg to the lairgirage used hy IJn; 
 h(;gislatirr-e, arrd if anything rrror'e forriral miis 
 intended, I tlrirrk irr. ir-e specific larrguagi; wuiild 
 have lieen rrsed. Mr-, Merrr-y when he haiidi;il 
 tin; p(;titiorr to thecl(;rk, idso harrded to him llio 
 rrolireof iris appoirrtmerrt as petit ioner-'s a;.'iiil 
 ' irndi-r- tin; !tth Krrle, iiird it has lieerr shown tjiiit 
 with tin; autlnu'ity of the petitioii(;r he was tinri 
 on his way to ilt;liver- tin; [retitioir at Ihcolliri; 
 of tin; clerk. The i-lcrk havirrg nrrdirlakni 
 hirrrself to he the lir(;arrs of eorrV(;j'irig to jiis 
 ollii-e, arrd .Mr. Ilerrry havirrg corrsenti-d In IiIh 
 doing so, arrd it lr;ivirrg l)e(;ri sliowrr that il w.is 
 really delivered tlrer-e hy Mr. Iloliires williiii 
 olliee horns of that day, it woirld he as urrri-asmi- 
 I ahle lo siiy that ther-e was rni pr-eseirtatiorr, as if 
 .Mr-. Ilerii-y had 'rarrdeil it to the clerk on llie 
 orrter side of tin; lailer's ofiii-e door-, iuid llii; 
 eleik had then retired withirr tin; olliee iirnl di;- 
 I livered il tlrer-e. 
 
 One of the gi-orrnds rrporr which tire oidiir 
 
 j rirade liy rrre on tin; Kith of .August last, Im- 
 
 lextemling the time for- s(;ivic(; of the jn-tilion, 
 
 etc., ami the service madi; tliei'eiiiril(;r- wi-i-e 
 
 attacked, is that "the said or-il(;r- was iiriprn- 
 
 viderrtly gi-iirrt(;d ami withorrt suflicieirt i-iinse 
 
 I sliowrr." This ground, it seenrs to rrre, must 
 
 I J)r-i;vail, rridess tin; aflidavits of the pi;li- 
 
 I tioin;r' and sherill' U|)on which the order- wns 
 
 gr-anted, estalilish tin; exist(;irc(;, duiirrg the 
 
 ' period within which tlr(; pajrei-s could have 
 
 originally heen served of "special cireuirrstarree.s 
 
 or diliiculty irr elleetiirg .servici; " hy which .ser-- 
 
 vice was prevcrili-d. 
 
 It a|ipear-s fr-om tin; aflidavits thai the petitioir 
 was pr-esented at the otlicc of tin; c-leik orr Sal Ml'- 
 day, the oth of .August, arrd handed to tin- 
 I .Sheriff' to he S(;r-veil oir the Stir day of the same 
 { rnoirth ; and that suhseiiuently lo lltf lalli r iliOi 
 diligerrt eiii|iriri(;s had lieerr irrade for the i-espnir- 
 dcirt, hut that he could rrot he fourrd, nor liis 
 wherealronts ascer-lained, arrd that jier-sonal ser- 
 vice coirld not irr consequeirce bo efl'ected. Tiie 
 aflidavits are silent in i-efererrce to the ))eri"il 
 wdiielr elap.sed hetweerr the day of pi-esenlatioir 
 and thedeliver-y to the .Sheriff for- .service. Jf tlie 
 papei-s had been delivei-ed to him for service on 
 Moirday itoii. ronxlal hut that they could iiave 
 been served within the five days. I do nut 
 think it was suflicient to show " special ciniim- 
 Mtances or difficulty in effecting service" on ami 
 after the Sth of August, more than on ami after 
 the lOtli of August ; nor do I see why if these 
 affidavits are suHicient, an order for exteiraimi 
 might not with eijiuil reason be upheld, where 
 
50.') 
 
 ELECTION LAW. 
 
 iOO 
 
 till' |i;i|)ir.M liiul Ktily li<:oii liiuiileil to tin; Slicrill' 
 on tin; lust day on which thi^y <;oul(l hi; mci'vimI ; 
 nr cvoii nfU'V lliu tiiiK; huil (ilapi^uil, iiinl iiu 
 I'l^fci'c'ijci: Jiiuilo ill the titliilavits on which it was 
 ffiaiilri! a.s to tlic iiitiMvciiiii),' tiiiic. For these 
 iiasiJiiM ] am of opinion liiat tiiu orih.'r of the 
 Hitii August, anil th(! .sciviijc Ihcruumhir must 
 111: .-ill asiilc, anil tin; orilcr iil.-<l to that (sxleiit 
 III, nil; ahsoliuc with costs. 
 
 Ill ri: KIik/'m (Joii.ii/i/ Kliftiiiii ('ii.-n', 
 •JC. LT., HH». 
 
 11). Presentation of petition Time Tor - 
 
 Election —On the '2~lU March, IH74, an onler 
 wa.'i olitaiiieil hy petitioner from Hon. >lames \V. 
 .liiliMsloii, one of the Juilges of the Klection 
 Ciiiirl, exteiiiling the tiiiK! for the service of the 
 petition for a perioil f)f foiirteen days from the 
 ilateofsiieh order. On the 'Jnd April responilent 
 olil.iiiii'il from the same .Jiidj^e an onU^r idt! to 
 Mlasiili; the (iist order on the ground, iiifirdliii, 
 that the petition was not presented or tiled within 
 the time rei(uired hy the Act. 'I'he petitioner 
 ill tlie allidavit on which he olitained the order 
 exteiiding time, swore positively that the peti- 
 tiiiii was tiled on the '2lWi\ Marcli, the last day 
 fill- presentation of any petition against respond- 
 eiil. 'I lie clerk of the ('oiirt promi.sed to return 
 to his iillicc after hours, and leiiiain until lialf- 
 jiast .seven. Ahout half-iiast .seven or twenty 
 iiiimiteM to eight the petition was put into the 
 ollicc of the ilerk hy shoving it iiiidei- the door, 
 the deik not heiiig in. The clerk .swore that the 
 IMlitioii was not tiled with him, nor, as he 
 lii-Heveil, wit li any person in lii.s olfioe on the 'J.'Jid 
 March, and tiie petition itself had the following 
 iiiiiiiDiandum initialed liy tlie elerk : -" Discov- 
 ered ill tlie drawer ajuiroiiriated to eleution pro- 
 ceedings in the clerk's otiice, about II a. in. 
 Marcii -.Mt.'!, IH74." 
 
 Ifilil, that the jietition was not jireseiitefl or 
 lijid williin the time re(|uireil hy the Act, and 
 was not ])rescnted in the proper manner, and 
 that tiiere was no petition before the Court at 
 tin; lime the order for extension of time was 
 iihivimI for. 
 
 J'urwiii V. Joiun, Rum. Klec. Rep. , 3. 
 
 'iO. Recriminatory charges In answer 
 
 struck out, where petitioner did not claim the 
 seat 111 tliis case a rule nisi was obtained to 
 strike out the tirst paragraph of the answer, on 
 the ground that it contained recriminatory 
 ciiargos against the petitioner, who had not 
 elaiiiieil the seat. 
 
 //':/(/, that the paragraph must be struck out 
 with costs, and that the practice adopted to 
 have it struck out was proper. 
 
 Hibhard v. Tuppe.r, llus. Klec. Rep., 94 ; 
 MacKay v. McDoua/'' . Id., 96. 
 
 '21. Kule rescinding I'x parte order ex- 
 tending time for service Res adjudicata — - 
 Second application after failure of the first — 
 Costs I'laintitf obtained an ij-jinifi order cx- 
 teinling tlie lime for service of an election peti- 
 tion on tlie respondent, which after argiiineiit of 
 a rule hm/ to lescind it, was rescinded because 
 the grounds on which the original order (extend- 
 ing the time had licen granted weie defeitive. 
 Petitioner then made a .second application, and 
 ■ obtained a S(!ci)nd ix /nrli- order for extension 
 ! of the time l)ased upon facts which were fully 
 known to the petitioner when he applied for the 
 tirst order. Respondeii' after the ordcir iiiti to 
 ! set aside the second extension and the service 
 thereunder had been obtained, tiled |ireliiniiiary 
 obj(!clions. 
 
 I Ifi'lil; that the second order for extension 
 ! could not bo made on grounds known to the 
 petitioner when he obtained the first order, and 
 that respondent was not jircvijiited by tiling 
 preliminary objections from conlendiiig that the 
 I sei'vice was bad, as tln;rc was no othci' coiltse 
 open to liiiii. The rule was made absolute witli- 
 ' out costs on the authority of the i^hin ii. v. Man- 
 I rhi's/rr anil. Lads Itaihrmi (Jo., S A. it K., 4l.'t. 
 I Dirtie v. \i'oodiror/h, 4 R. & (»., lOf). 
 
 i Jfc/d (Koiirnier and Henry, J.J., dixximliinj), 
 \ that the rule a)>pcaled from was not " a judg- 
 ment, rule, order or decision on a preliminary 
 oitjection " from which an appeal would lie under 
 section ID, 4'2 Vict. c. .'{!) (the Supreme Court 
 Amendment Act of 1S7!*). 
 
 h'iiii/x Co., X. .S'. , Klcrtioii Coup., 
 {DirLi,, V. lVood.,rorlll),HS. C. 11., I9'J. 
 
 22. Security Dom. Acts, 1K7:{, c. 2S s. 11 
 
 —I'l'.r Hon. \V. A. H<!nry, .Iiidge ad /tor. 
 
 Hi'ld, that the recognizance entered into by 
 only one surety was siitiicient under Dom. 
 Acts, 1 H7.'{, cap. 28 sec. 1 1 , sub-sec. 5. 
 
 milliard v. Tniiiitr, Rus. Klec. Rep., 9. 
 
 23. Service of copy ofpotitlon -Extension 
 
 of time— -Discretion of Judge— R. S.C., c. 9, sec. 
 10 — An order extending time for service of an 
 election petition tiled at Halifax from five days 
 to fifteen days, on the ground that the respondent 
 was at Ottawa, is a proper order for the Judge 
 to make in the exercise of his dincretion under 
 sec. 10 of c. 9, R. H. C. 
 
 Samhk, per Ritchie, C. J., and Henry, J., that 
 the Court below had power to make rules for 
 the service of an election petition out of the 
 jurisdiction. 
 
 Per .Strong, J. — An extremely strong case 
 shouhl be shewn to induce the Court to allow an 
 
507 
 
 ENGLISH BANKRUPTCY ACT. 
 
 508 
 
 appeal from the jinlynient of the Court below on 
 preliiiiiiriry olijections. 
 
 Holtir/ioii V. Ltiiric, 14 .S. V. R., '2'>8. 
 
 '21. Service of iietltlon Extending time 
 
 for Order ex parte— Setting aside A rule 
 nisi t<i set aside an order extendin),' tlie time to 
 serve a petition was granted liy the same elec- 
 tion .Judge (.lames \V. .lolmston, Ksij., i). C, 
 .Judge (III hoc) who had granted the order sought 
 to l)e set aside. 
 
 Ill III, l>i.r Johnston, .Judge ml hoc, that the 
 ,")lHt of the (Jeneral Hides of the I'^leetion Court, 
 referring all interlocutory (luestionsand matters 
 to one of the election judges, gave tlie .Juilge 
 juristlietion to hear and dispose of the rule «/.si\ 
 and that as the oi'der extending the time had 
 been made absolute in the <irst instance, and 
 granted ixfMrIf, the respondent was at lil)eity to 
 move the .Judge who granted it to discharge it, 
 provided he could show siillicient reasons why 
 the order shoidd not have been granted in tlie 
 first instance. 
 
 I'ariOHs V. ./oil", Ilus. Klee. Flep., .3. 
 
 25. Time for commencement of trial of 
 
 petition — Session of parliament — Extension of 
 time — Section 'I"! of tiic Dominion Controverted 
 Elections Act, Rev. .Stats, of Canada, provides 
 that " the trial of every election petition shall 
 be commenced witldii six months from the time 
 when such petition has been presented, and shall 
 be proceeded with from (hiy to day until such 
 trial is over ; but if at any time it appears to the 
 Court or a .Judge tluit the respondent's presence 
 at the trial is necessary, such trial shall not be 
 commenced during any session of parliament ; 
 and in the computation of any time or delay 
 allowed for any step or proceeding in respect of 
 any audi trial or for the connnencement thereof 
 as aforesaid, the time occupied by such session 
 of parliament shall not be hicluded." 
 
 Held, ptr Rite! ie, J., that the word *' such " 
 restricts tiie meaning of " session " in the latter 
 part of the section, and in tlie computation men- 
 tioned the only time to be deducted is that 
 occupied by the session of parliament, at which 
 it was contemplated to commence the trial, when 
 it was made to appear to the Court or a Judge 
 that the respondent's presence at the trial was 
 necessary. 
 
 The petitioner cannot deduct from the six 
 months allowed for the commencement of the 
 trial the period during which parliament had 
 been in session unless an application had been 
 made to commence the trial during the session 
 and it was made to appear to the Court or a 
 Judge that the respondent's presence was neces- 
 sary at the trial. 
 
 Qiuierc, whether the tinui witiiin which to 
 commence the trial c<Hild lie eidargcd after the 
 ex])iration of the six months, 
 
 //(•/(/, that the delay in commencing the trial 
 not having Iteeii accoinited for, the time liiiiiti'd 
 by the Act could not be extended even if there 
 was the power to extend after the expiration 
 of tiic six nionths. 
 
 liuriii et al. V. Joni.s, 
 Unreported, delivered Dec, 8th, 1S87, 
 
 EMBEZZLEMENT - 
 See CRIMINAL LAW. 
 
 EMPLOYEE. 
 
 1. Wlio an employee witiiin meaning of 
 
 Government Railway Act, Acts 1881, c. 25, 
 s. 109, (Dom.) 
 
 See GOVERNMENT RAILWAY ACT. 
 
 Kearney v. Oak-en et at., '20 N. S. R., 
 (8 R. & G.), .SO. 
 
 2. Employee of Customs House — Sub- 
 collector of Customs held an employee within 
 5th R. 8., c. 4, s. 67, (N. .S.) 
 
 Munro v. Elliott, 20 N. S. R., (8 R. & G.), 330. 
 
 See CUSTOMS HOUSE EMPLOYEE. 
 
 ENGLISH BANKRUPTCY ACT. 
 
 County Court Judge acting in aid of Eng- 
 lish Court— Appeal— A County Court Judge 
 was applied to to act in aid of, and as 
 auxiliary to the London Bankruptcy Court, in 
 relation to property of an English bankrupt 
 situated in his district, and made an order 
 accordingly. 
 
 Held, McDonald, C. J., dissenting, that no 
 appeal would lie from such order, to the 
 Supreme Court, either under the Insolvent Act 
 of Canada which had given certain powers to 
 the Judge in reference to insolvents, or under 
 the County Court Acts, inasmuch as his order 
 was not made by reason of any jurisdiction 
 conferred by those Acts, but by reason of the 
 Imperial Bankruptcy Act which did not give 
 such appeal. 
 
 Rt Carvell, ex parte Qliddon, 5 R. & G., 410. 
 
509 
 
 ESTATE. 
 
 510 
 
 EQUITY COURT. 
 1. roHcr of, over InRints' real estate— 
 
 The powt'i' <if tliu K((uity ('oiirt over the reiil 
 cstiitu iif iiifiints in this I'l-ovincu is more exteii- 
 sivi' than any snoh power wiiieii litis ever lieen 
 exeirised in Knghind. 
 
 If it he shown tliat hy the dinposiil of tlie 
 pnjpfity the interest of tlie infant will he snb- 
 siiuiti.illy pronK)te(l on aeeount of any portion 
 (if tlie property heing exposed to waste ordilapi- 
 (liitidii, or heing wholly nnprodiietive, or forany 
 (itiiur rea.sonahle eause, the Court has a disere- 
 tidiiary power to order a sale. 
 
 Wiiere the whole pro])erty yielded an iiieome 
 of (inly Sl(K», and the infants' undivided share 
 upon a sale woidd produec four or five times as 
 miiih as their share of the rental, 
 
 //'/(/, that the discretionary power of the 
 Court was wisely exercised. 
 
 //(/(/, also, tliat the discretionary power of the 
 Cduit to order a sale, was not determined liy the 
 appointment of a guardian, and that where the 
 guardian, who was the mother of the infants, 
 was opposed to tiie sale and neglected or re- 
 fused to lind security, as required hy the RevLstid 
 Statutes (.'hd series), chapter 124, section 51, 
 the Court had power to remove such guardian 
 and auhstitute in her stead a suital)le person as 
 next friend to tile the necessary hond and effect 
 the sale. 
 
 Ill re Estate o/Lawlor, 2 N. S. D., 153. 
 
 2. Equity Judge disqualified by profes- 
 sional connection with suit— Ritchie, E. J., 
 when at the Bar, had been professionally con- 
 sulted in reference to the suit wliieh was after- 
 wards instituted \>y bill in equity, and on that 
 account had at first declined to act in the mat- 
 ter, hut had afterwards, to facilitate matters, 
 undertaken to sign any merely pro forma orders 
 in the cause, and had, with this understanding, 
 signed an order to appoint an examiner to take 
 evidence. On appeal from this order, 
 
 Held, that under 4th R. S., cap. 95 s. 6, which 
 
 went further than the English rule, the Judge 
 
 was discpialified, and the order must be set aside. 
 
 Harrii, v. Wallace, 3 R. ,& C, 326. 
 
 EQUITABLE RIGHTS. 
 
 Held, tliat, after the passage of the Judi- 
 cature Act, the .ludgo presiding at the trial was 
 bound to give eU'ect to the efiuitahle rights of the 
 pai'ties, though the cau.se had been at issue pre- 
 viously. 
 
 MrPherxoH V. McDomihl, U R. & (i., 242. 
 
 : ESCAPE. 
 
 1. Arrest for disobedience of summons to 
 
 appear and testify — Escape and pursuit — 
 Entering house — 
 
 ! See CAJfADA TEMPERANCE ACT, 16. 
 
 i 
 
 ! 2. Measure ofdamages in action for -In an 
 
 I assessment of damages after default in an action 
 against a sheriff for an escape, the coroner direc- 
 
 ■ ted the jury that if the debtor had been allowed 
 
 1 to escape through any negligence in taking the 
 proper precautions to prevent such on his part, 
 
 I they were bound to find the full amount " or at 
 
 I least heavier damages. " 
 
 I Held, that this was a misdirection, the pro- 
 per measure of damages lieing the pecuniary 
 value of the custody at the moment of escape. 
 
 Mvliae V. Dunlop, 3 R. & G., 315. 
 
 EQUITABLE PLEAS- 
 Set PLEADINGS. 
 
 ESCHEAT. 
 Failure of inheritable blood- Where there 
 
 is a failure of inheritable blood by reason of 
 alienage, the lands do not escheat, but go to the 
 next heir. 
 
 Salter v. Hwjhen, 1 Old., 409. 
 
 ESCROW- 
 iS^ee DEED, 18 & 24. 
 
 ESTATE. 
 Intestacy— Time from which computed— 
 
 For the purposes of distribution among the next 
 of kin, intestacy will be computed from the death 
 of the testator, and not from the date of the 
 events which produced the intestacy. 
 
 J. C, by will, bequeathed to his natural 
 daughter, Mrs. B., a certain fund, and in event 
 of her death without lawful issue, it was to be 
 
511 
 
 ESTOPPEL 
 
 .')12 
 
 divided among liis iiiecoH in utjual proportionH. 
 Mrs. IJ. 1.:m1 cliildien, but sliii iin<l they peri.slu.'d 
 at sea in tiie same sliip, tiie ciiviinistances of tlie 
 calamity being utterly unitnown. Tliere lieing 
 no ])i'esunipti<)ii of law that tlie mother survis-ed 
 the ijjiildren, the nieces could not take uniler the 
 Mill, and tiie fund consequently went to,]. C's 
 next of kin. 
 
 Tlie(iuestion wasas to tlie division of this fund 
 among tlie lu^xt of kin. J. C. had a l)iotlier and 
 a sister who pre-deceased him, and a sister, Mrs. 
 W., who survived him, but died before the 
 occurrence of the catastrophe in which Mrs. B. 
 and iior cliildren perished, leaving two daughters, 
 whose children now claimed to share in the fund. 
 It' J. C's intestacy was to be computed from the 
 time of Mrs. IJ.'s death, they would ))e excluded as 
 ))eing collaterals too remote ; if from the time of 
 hid own death, they would be entitled to one- 
 third of the fund, i. e., their mother's share. 
 
 Ili'/d, that the intestacy must be computed 
 from tlie time of J, C's death, and therefore tiiey 
 were entitled. 
 
 Harlihorub tt al. v. IVilkim tt «'., 
 1 X. S. D., 128. 
 
 ESTATES TAIL. 
 
 1. 2nd R. S., c. 112, retrospective -Cf. 
 
 5th R. S,, c. 88— Tlie Provincial Act, ch. 112, 
 Rev. .S;.ats., (Second series) is retrospective, and 
 abolishes absolutely all estates tail, even al- 
 though a valid remainder be limited thereon. 
 In re Estate o/Simpxon, 1 Old., 317 it 7iii. 
 
 2. Estates Tail where valid remainder 
 
 limited — Estates tail abolished even where a 
 valid remainder was limited thereon. 
 
 In re Estate of Simpson, 1 Old., 317, affirmed. 
 JMcKcHziti V. McKenzie, 2 Old,, 178. 
 
 ESTOPPEL. 
 1. Action on bond for faitbrul discbarge 
 
 of duty by public official — Fraud— Negligence 
 — Liability of surety — Proximate cause — 
 Estoppel — 111 an action against defendant as one 
 of the sureties on a bond purporting to have 
 been given for the faithful discharge of the 
 duties of the agent of the Government Savings 
 Bank, at Annapolis, it appeared that the bond 
 and the affidavit of justification reipiired to 
 accompany it were signed by the defendant in 
 blank ; that the bond at the time was without 
 seals, date or amount, and that the affidavit was 
 
 never sworn. Tiie bond was subseipiently tilleil 
 in for (loul)le the amount authorized by defcnii- 
 ant, and the affidavit, after having been lilluil 
 in, was certified as sworn by u Justice of tlio 
 Peace. 
 
 //t:/(l, McDonahl, C J., ilixieiitlni/, tiiat tiie 
 bond having been accepted on the faith of the 
 certiticate of the Justice, and tlie certificate imt 
 iiaving lieen jirocured or made by defendant, tlie 
 latter could not be made liable for the default of 
 the officer. 
 
 Queen v. Chesley, 6 R. & <;., .113 ; 
 G C L. T., 4.-)4, 
 
 Ok appeal to the Suprxme Co\rt of Canada, 
 
 Held, reversing the judgment of the Court 
 below, that the making of the bond was the 
 real cause of its acceptance, and the defeiidiint 
 being estopped, the Crown was entitled to judg- 
 ment. 
 
 li. V. CheMey, 9 C. L. T., 21-2. 
 
 2. Agreement not to distrain — Mrs. M. 
 
 received from plaintiffs certain articles of fiinii- 
 ture, under the following written memoraMdum 
 signed by her : " Received from Messrs F. & 
 Son the following articles of furniture for wiiicli 
 I am to pay, &c. The said furniture to leinaiii 
 the property of W. F. & Son till paid for in full, 
 and in the event of non-payment the said \V. 1'. 
 it Son can take the furniture back." The de- 
 fendant who was Mrs. M's. landlord before the 
 furniture was delivered, signed the following 
 written memorandum : " The bearer Mrs. M. 
 being about to purchase some furniture from 
 W. F. & Son, and my rent being guaranteed, I 
 hereby agree not to take the furniture so to he 
 provided by \\ . V. & Son, for any rent that may 
 become due." 
 
 Held, that defendant was estopped from dis- 
 training on the furniture so supplied. 
 
 Fra.-<er et al. v. Wallace, 2 R. & C, 337. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, affirming the judgment below, that the 
 memorandum signed by defendant constituted 
 a binding contract or arrangement with F. & 
 Son not to distrain. 
 
 Wallace v. Fraser, 2 S. C. R., 522. 
 
 3. Bank shares-Transfer of-Estoppd- 
 
 Action was brought against defendant, as trans- 
 feree of shares in the plaintiff Bank, for calls. 
 There was no valid transfer of the shares under 
 the Act, but defendant had paid calls, given a 
 receipt for a dividend, combined with others in 
 appointing a proxy, and being present at the 
 trial and hearing all this evidence, had not pro- 
 
513 
 
 ESTOPPEL. 
 
 514 
 
 duced any evidence or offered his own testimony i 
 
 in reply. i 
 
 //(/(/, tiiat lie must be treated as a shareholder. 1 
 
 Bank of Live.rpool v. Bigeloic, 3 R. & C, 23«. ! 
 
 4. Bond given to Municipality as security ; 
 
 for officer — No seals aflixed by sureties — 
 Affixed by principal before delivery — Sureties ; 
 estopped from setting up want of seals after ■■ 
 acceptance of bond — Defendants signed tiieir , 
 iiajnc's lis sureties to an unexecuted bond for j 
 tlie faithful discharge by M. of his duties as ' 
 clerk and treasurer of the plaintiff Municipality, I 
 but affixed no seals. M. 8ul)se([uently attached j 
 seals and his own signature to the bond and i 
 forwarded it by mail to the Warden of the 
 Municipality. 
 
 //(/(/, /xr Weatherbe, J., and McDonald, J., 
 tiiat tiie bylaw under which the bond was 
 taken was ijiira rb-cs, and that the defendants 
 were estopped from denying their seals after 
 tiie plaiiitifl' had accepted the instrument from 
 M, us .security. 
 
 Per McDonald, C. J., and Ritchie, J., that 
 defendants were liable as guarantors on the 
 instnmient, having signed it with the knowledge 
 that it was to be used as security. 
 Mmki/iaUty of Shtllmrne v. Marshall el al., i 
 
 7 R. & G., 171 ; 
 7 C. L. T., 248. 
 
 On appeal to the Supreme Court of Canada, 
 III Id, Henry, J., heiitanlc, that as the res- 
 pondents had proved a jn-ima facie case of a 
 l)ond properly executed on its face, and neither 
 the subscribing witness nor the principal obligor 
 was called at the trial to corroborate the evi- 
 dence of the appellant who had not negatived 
 the due execution of the bond, it being quite 
 consistcrit with his evidence that it was duly 
 executed, the onus of proving want of execu- 
 tion was not thrown off the appellant, and the 
 respondents were entitled to recover. 
 
 Marshall v. Municipality of Shelbume, 
 
 14S. C. R.,737; 
 7 C. L. T., 130. 
 
 5. By conduct — One Mosher conveyed a 
 
 nundjer of horses and colts to the plaintitf by bill 
 of sale as security for an alleged debt. Plaintiflf 
 exchanged one of the colts for a horse. This was 
 afterwards, at plaintiflfs request, exchanged for 
 anoti'er horse which was delivered to plaintiflf, 
 but plaintiff requeoted Mosher to keep him. He 
 did so, and fed the horse with the hay transferred 
 to plaintiff by the bill of sale. The J udge of the 
 County Court considered the evidence of the 
 debt which formed the consideration of the bill 
 of sale unsatisfactory, but he negatived fraud in 
 
 17 
 
 the transaction. He also considered that the 
 estoppel, which could otherwise be relied on 
 against plaintitf, ceased to operate after notifi- 
 cation by plaintiff to the defendant of his claim 
 of property in the horse. 
 
 Held, that the decision of the Judge of the 
 County Court for plaintiflf must be affirmed. 
 
 Per DesBarres, J. — That the evidence of the 
 dealings l)etween defendant and plaintiflf did not 
 show any fraud. 
 
 Per Jume.3, J. — That there was no estoppel at 
 any stage of the transactions. 
 
 Per McDonald, J. — That even assuming that 
 the bill of sale was void, the horse could not be 
 levied (m, as it had never been the property of 
 Mosher, but was the property of plaintiflf, how- 
 ever obtained. 
 
 Weatherbe, J., dubitante. 
 
 AndrewH v. Bonnett, 2 R. & G., 313. 
 
 6. By conduct— John Brown died In 1817, 
 
 having devised land to his son, John Brown, and 
 his heirs ; but if he had no children, and should 
 die before his wife, Susannah, then to her for life, 
 and at her death to Janet West and her heirs. 
 Janet Wrist, a' id Isaac West, her husband, con- 
 veyed the land in 1848 to the John Brown who 
 in 1874 conveyed to plaintiflf, but Isaac West 
 having afterwardf obtained possession of the 
 land through his son, to whom it had been leased, 
 refused to deliver it to plaintiflf, who brought 
 ejectment. 
 
 Held, that the conveyance of Janet West's 
 interest, though it would not have been good if 
 made to a stranger, ft-as valid as having been 
 made to the plaintiflf, who had the fee, and even 
 if not so, the defendants W'ere estopped by their 
 conduct from claiming the land. 
 
 Fleming v. Weit et al., 2 R. & G., 294 ; 
 1 C. L. T., 709. 
 
 7. Consideration expressed in agreement 
 
 for loan of money — Borrower estopped from 
 setting up other considerations — Where a 
 plaintiflf under a written agreement, loaned 
 money to the defendant for certain considera- 
 tions expressed in said agreement. 
 
 Held, per Dodd and Wilkins, JJ., that plain- 
 tiflf was estopped from going outside of the 
 agreement, and showing that the money was 
 lent on other considerations than those expressed. 
 Barss v. Stro7ig, 1 N. S. D., 450. 
 
 8. Conventionalllne and estoppel thereby— 
 Sec BOUNDARIES. 
 
 0. Conveyance of land In fee simple, by 
 
 the mortgagee with consent of mortgagor. 
 
515 
 
 ESTOPPEL. 
 
 516 
 
 estops the latter — I'luintifTs father inortgiigeil a 
 lot of liiiid to defendant, and sul)3e(iuently 
 defendant, witli tlie consent and by the diiection 
 of Ilia father, conveyetl the U)t in fee tiiniplu to 
 N. M. After the (U;atli of tlie father i)laintiir 
 broiigiit suit under his will against defendant for 
 the land. 
 
 JIdd, that the father by consenting to the 
 conveyance of the land in fee simple to N. M. 
 was estopped from redeeming it, and as plaintiff 
 was in no better position tiian her father, judg- 
 ment fliiould be for defendant. 
 
 JfcLcod V. CmiijMl, ,3 N. S. D., 456. 
 
 10. Deed — Estoppel by inference ft-om 
 
 words in deed— An estoppel may be sustained 
 upon a direct and irresistible inference from the 
 words of a deed. 
 
 Archibald v. Blols, James, ,307. 
 
 11. Deed made to party who mortgages, 
 
 recorded but not delivered — Grantor and par- 
 ties claiming through him estopped from deny- 
 ing, as against mortgagee, execution of deed — 
 
 Sec DEED, 40. 
 
 12. Deed— firantor estopped ft'om denying 
 
 right of way over street shown on plan referred 
 to in deed — I'laintifl' and the two defendants 
 purchased a tield, divided the front portion into 
 lots according to a certain plan, laying off two 
 lots as proposed streets, connecting an existing 
 street with the undivided rear portion of the 
 land and furnishing the only access to that rear 
 portion from any existing street. The defen- 
 dant. P., purchased the undivided reapportion 
 and two of the front lots one on each side of one 
 of the proposed streets, the said lots being des- 
 cribed in the deed as bounded on the north and 
 south respectively by the street in question. 
 
 Held, that the plaintiff was estopped as a 
 grantor in the deed to defendant, P., from de- 
 nying that a, right of way was granted over the 
 land designated in the deed and on the plan 
 under which the sales were made aa proposed 
 streets. 
 
 Pugh V. Peters et al., 2 R. & C, 139. 
 
 13. Estopped by Statute — County of 
 
 Pictou held to be estopped by Chapters 66 and 
 70 of the Acts of 1879, passed after hearing the 
 Gustos of the County by counsel before a Com- 
 mittee of the Legislature from disputing the 
 appraisement of lands taken for Eastern Exten- 
 sion. 
 
 In Re Pictou Railway Damages, 1 R, & G. , 448. 
 
 For full statement of this case and decision on 
 appeal to Supreme Court of Canada, 
 
 .^ee ASSESSMENT, V. 4. 
 
 14. Evidence-Defendant reading note In 
 
 evidence. — The note sued upon having been 
 read in evidence at the instance and on the 
 motion of defendant's counsel, 
 
 //(/(/, that he was thereby estopped from 
 denying its validity. 
 
 The Bank o/A'bi'a Scotia v. Chi/»nan, 
 
 '2N. S. D.,4;i8. 
 
 15. Forged signature — Ratification of- 
 
 The defendant, Farnsworth, was sued as maker 
 
 of two i)romissory notes which purported to 
 
 have been made by Farnsworth and indorseil l)y 
 
 one (iraves, who was joined as cci-defundaiit. 
 
 At the trial defendant swore tliat he had ni'itlitr 
 
 signed the notes in ([uestion nor authorized any- 
 
 j one to sign them for him. This fact was aihiiit- 
 
 1 ted and was found in his favor, but it appcart'il 
 
 I that previous to the trial, when payment of the 
 
 ! notes was demanded, Farnsworth state<l tiiat lie 
 
 had signed the notes for the accomnuxlation of 
 
 I his co-defendant (Jraves, and made an oiler of 
 
 I payment provided time was given, and that in 
 
 consetjuence of this admission plaintiff refniineil 
 
 froiii taking proceedings against (iraves for 
 
 forgery. 
 
 Held, that defendant's (Farnsworth's) conduct 
 amounted to an adoption and ratification of the 
 signatures to the notes, and that he was liiible 
 tliereon. 
 
 Per Weatherbe, J., that the case on the point 
 of detriment or alteration of position came witii- 
 in the cases of Fitzrandolph v. Shanly el al., 2 
 R. & G., 199, and Knights v. li'hiffcu, L. R., 
 5 Q. B. , 660, and that on this point the plaintiff 
 was entitled to judgment. 
 
 The Union Bank v. Fammvorth el al. , 
 
 7 R. &(i.,8'2; 
 7 C. L.T.,141. 
 
 16. Judge of Probate lield not estopped 
 
 from opening accounts— The acting executor 
 of R. H. B. and the acting executor of E. A. B., 
 his wife (R. H. B. having been executor of C), 
 made a memo, as follows : — " It is mutually 
 " agreed between J. W., the acting executor of 
 "R. H. B., and myself, the acting executor of 
 " Mrs. R. H. B. , that the settlement made by him 
 "on the eighteenth day of December last, at the 
 "Probate Court at Annapolis, to abide the de- 
 "cree then made, by his paying over to iiii; one 
 "hundred dollars, part of the percentage or 
 "commission allowed in said settlement, which 
 " sum I have this day received." Sgd. "J. C.T.' 
 
 J. C. T., acting executor of E. A. i^., had 
 always objected to the settlement referred to in 
 the memo. 
 
 J/eld, that the memo, did not estop the Judge 
 of Probate from opening the accounts. 
 
 In re Estate of Bath, 2 R. & C, 403. 
 
517 
 
 ESTOPPEL. 
 
 518 
 
 t1. MortgaKe given by one party for 
 
 money advanced to another — Mortgagor es- 
 topped from setting up fraud on part of such 
 
 other — I'liiintitf liroviglit .suit ti) foi'uelose a 
 mnitgiigt' liiiiilf l>y iletfinliiiit, wlm allcj^i'd in 
 hiT iuiswur tliiit slit! luul lici'ii indiufil to sign it 
 by tlio fraud iif Thos. .S. Fouler. Her tt'sti- 
 inmiy as to the iiii|io.sitioii ullcp'd to liavu lieen 
 practised upon her was contnidieled liy Fowler, 
 and it was in prooi that she ha I re-exeeuted the 
 iiiatninient in the presence of the clerk of plain- 
 titf's solicitor, who had deferred paying over 
 the money in order to assure himself thai defen- 
 dant understood the tran.saction. There was 
 also evidence that defendant was aware of the 
 nature of the instrument shortly after signing it, 
 ami did not repudiate it, hut entered into nego- 
 tiiitions toohtain security from Fowler, who had 
 retained the money advanced on the security of 
 the mortgage. The t'ourt, in view of the evidence, 
 concluded that defendant when she signed the 
 instrument must have understood its nature, 
 .md held that, whether she did or did not under- ! 
 stand it, she was estopped, as against plaintiff, [ 
 from saying that she was not aware of its con- i 
 tents. ! 
 
 Kuniear v. Siln.r, R. E. D., 101. i 
 
 18. Must be pleaded— In an action against 
 
 the City for removing plaintiff's steps, it ap j 
 peared in evidence that when the City Engi- i 
 neercalled on plaintiff in reference to the alleged 
 encroachment on the street, plaintiff asked the , 
 Engineer to give him the line of the street, 
 whereupon the F'ngineer niarkeil it on the corner 
 of the steps with a pencil. Defendant's counsel : 
 contended that plaintiS' was bound by this pro- 
 ceeding under section 270 of the Act of Incor- i 
 poration, and that not having appealed under 
 section 271, he was estopped. 
 
 ffcM, that the defendant could not take advan- 
 tage of the estoppel, not having pleaded it. 
 
 Evann v. The City of Halifax, 3 R. & G., 321. 
 
 19. Must be pleaded — In an action to 
 
 recover consideration money expressed in a deed, 
 if estoppel is relied upon it must be pleaded. 
 
 McDonald v. Bloin, 3 N. S. D., 298. 
 
 20. Principal and agent — Undisclosed 
 
 principal— Representations by— Plaintiflfs, who 
 held a bill of sale on a quantity of lumber, 
 authorized its sale by M. & L., and assented to 
 a sale to the defendants, to whom they repre- 
 sented M. & L. as owners. After the sale and 
 part payment of the purchase money, plaintiflfs 
 disclosed themselves as owners, and demanded 
 the balance due, which defendants, notwith- 
 standing, paid to M. & I . 
 
 Hi/(l, reversing the judgtnent of the County 
 Court Judge, that plaintiffs were entitled tore- 
 cover as the real principals in tlie transaction, 
 and were not estopped by the representation. 
 
 Weatherbe, .1., illsioilltiii, on the ground that 
 M. iS: L. were not shown to have acted as agents 
 of plaintiffs. 
 
 Laylon it al. v. Smith <7 at., 5 R. & «., 331. 
 
 21. Receipt in deed Effect of-\o plea 
 
 necessary to take advantage of receipt as 
 estoppel — The recei[it of the con.°ideration 
 money in a deed is conclusive at Common Law, 
 but a Court of Kipiity looks to tiie real character 
 of the dealing, and gives the vendor a lien on 
 the estate. 
 
 /'i r Young, C. J., — It is not necessary for 
 defendant to have a plea in estoppel in order to 
 take advantage of the receipt in a deed. 
 
 Xelnon V. Connorn, I Old., 406. 
 
 22. Representations as to lands Included 
 
 in mortgage — Defendants, desiring to borrow 
 money on mortgage, took the plaintiff, wlio was 
 the solicitor of the mortgagee, ujwn the land 
 offered as security, and pointed out the boun- 
 daries of the land. Plaintiff drew up a mortgage 
 in which the land was described as that on which 
 defendants resided, but the bouiularics given 
 were shown by pai'ol evidence not to inchiile the 
 portion on whicli they r<!sided, although it was 
 clearly the intention of all parties that this 
 portion should be included in the mortgage. 
 Phiintiff having taken an assignment of the 
 mortgage, foreclosed it, and bought in the pro- 
 perty at the sheriff's sale, the description in the 
 sheriff's deed following that in the mortgage. 
 Plaintiff then brought action of ejectment, and 
 defendants, as to this portion, pleaded that 
 plaintiff had no title. 
 
 Held, per James J., that defendants were not 
 estopped from saying that the land in question 
 v,-a3 not included in the mortgage, but that 
 the verdict for plaintiff must be sustained, as it 
 was the clear intention to include the portion on 
 which defendants resided, and the ambiguity 
 had been cleared up by parol evidence. 
 
 Per Young, C. J., DesBarres and Smith, JJ., 
 that the defendants were estopped by their re- 
 presentation that the whole of the land, includ- 
 ing the part in question, was to be comprised in 
 the mortgage. 
 
 FiUkrton v. Ibhitson, et al., 3 R. & C, 225. 
 
 23. Representation as to ownership of 
 
 goods — Transfer of title by delivery — Plain- 
 tiff was in the habit of supplying H. with money 
 and goods for trading purposes on the condition 
 
619 
 
 ESTOPPEL. 
 
 520 
 
 tliivt all goods promired by H. by way of pur- 
 chase orexoliangc, were to Iks tlelivercd to plain- 
 tiff, wlio was to sell them to pay his advances. 
 (J. having obtained judgment against H., was 
 about to levy on a schooner belongnig to H., in 
 which ]>Iaintiff liad an interest, and whicli he 
 was aliout to sell, when he was induced to ab- 
 stain from doing so by plaintiff, who informed 
 him that the schooner Eaiteini Clipper was then 
 in Ouysboro', that the goods on board were those 
 of H., and that he could levy upon them there, 
 or wait nntil the vessel came to Halifax. O. 
 failed to levy on the goods then on board the 
 Ewitcrn Clipper, but caused a levy to be made 
 on a cargo wiiich arrived at Halifax four months 
 afterwards, and which had been procured in the 
 same way. On the evening previous to the IcN-y 
 H. had gone to plaintiff's office and there made 
 and delivered to plaintiff's bookkeeper a memo- 
 randum in the form of a bill of lading of the 
 goods, and had received instructions where to 
 land the goods. He went to the place indi- 
 cated, and was preparing to land the goods 
 wlien they were levied upon by the Sheriff. 
 
 Hdd, that what occurred in plaintiff's office 
 was a delivery of the cargo to plaintiff, anci that 
 the latter was not estopped by his rcpresei>ta- 
 tion to (!. from taking the transfer of the goods. 
 
 McDonald, C. J., and McDonald, J., dUieiit- 
 imi. 
 
 For.<ylh v. Bell, 6 R. & O., 374 ; 
 6 C. L. T., 489. 
 
 24. Representation as to ownership of 
 
 horse— Seizure by Sheriff — Plaintiff brought 
 action against the defendant, a Sheriff, for the ; 
 seizure and sale of a horse on an execution against j 
 one Nicholson, who had some time before the 
 seizure been the real owner, although when 
 taken the animal was in the possession of the 
 plaintiff, who claimed it under an alleged pur- 
 chase. Defendant's attorney testified that before 
 seizure plaintiff had told him the horse belonged 
 to Nicholson, and that on the faith of that state- 
 ment the Sheriff had been induced to seize. Be- 
 fore the sale, however, plaintiff notified the 
 sheriff that the horse was his. 
 
 Held, reversing the decision of the County 
 Court at Annapolis, that the plaintiff was not 
 estopped by his representation, and the defend- 
 ant's having incurred expenses in feeding the 
 horse, &c., in consequence thereof, from setting 
 up the truth as to the ownersliip of the horse. 
 
 McKay V. Bonneft, 3 R. & C, 137 ; 
 1 C. L. T., 566. 
 
 2.1. Representation as to ownership of 
 
 horse— Seizure by Sheriff^One Nicholson, being 
 indebted to plaintiff, gave him a horse to be sold 
 
 towards the satisfaction of the debt. Plaintiff 
 swapped the horse with one Hardwick for a colt, 
 informed Nicholson of the trade, fixed the value 
 of the colt at Si). 40 more than the debt, and paid 
 this amount to a creditor of Nicholson in tiiiul 
 settlement. Hardwick afterwards became dis- 
 satisfied with the trade, insisted upon plaintiff 
 giving back the colt, and applied to M., m 
 attorney, who wrote plaintiff. Plaintiff callod 
 on the attorney, and according to the evidence of 
 the attorney, declared to him that the horse was 
 Nicholson's. Accor<ling to plaintiff's evidence, 
 not contradicted, he .stated to him the arrange- 
 ment between himself ..nd Nicholson in reference 
 to the horse, as above set out. On the same 
 day, and previous to the ii\terview, M.,actingas 
 attorney of other parties, ha(" entered up a judg- 
 ment against Nicholson, and the Judge of the 
 County Court found that the attorney had, on 
 the faith of plaintitt''s statements that the liorse 
 was not his, but Nicholson's, caused the defend- 
 ant, the Sheriff, to levy on it in plaintiff's pos- 
 session, and that plaintitV had abstained from 
 looking after other property of Nicholson, who 
 was a mere transient emj)loyce. Before any ex- 
 pense had been incurred in keeping the liorse, 
 and before the sale, the plaintiff notified the 
 SherifT that the horse was his. 
 
 Held, in accordance with the previous ruling 
 of the Court (3 R. Sc C, 1.37), that the plaintiff 
 was not estopped from setting up his ownership 
 of the horse. 
 
 Per Weatlierbe, J., that the representation 
 was not made with the intention that the execu- 
 tion creditor or the Sheriff should act on it liy 
 seizing the horse, and it could not be reasoiuiljly 
 inferred that such was the intention ; and fur- 
 ther, that the assertion of plaintiff had not been 
 made baldly, but with a qualification explanatory 
 of tlie arrangement above referred to, from 
 which it seemed reasonable that the attorney 
 had acted rather on the belief that the horse 
 could be shown to be Nicholson's than upon the 
 mere assertion of plaintiff that it was so. 
 
 McKay v. Bonnett, 2 R. & G., 96. 
 
 26. Representations by debtor as to debt 
 
 due party — Garnishee process taken out by 
 reason thereof— Debtor estopped from deny- 
 ing indebtedness — Plaintiff held a judgment 
 against one George Cutten, and was about to sue 
 Ryerson and Moses, whom he understood to be 
 Cutten's partners. Before doing so he consulted 
 one of the defendants, by whom he was informed 
 that there was a balance of some $2,700 due 
 from the defendants to Cutten for work per- 
 formed for defendants on the Western Counties 
 Railway under a contract, and defendants sug- 
 gested that this amount might be made available 
 
511 
 
 ESTOPPEL. 
 
 522 
 
 to satisfy the plaintiff's claim if there was a 
 garnishee law. I'laintiflT's attorney, on the 
 strength of this representation, issued garnishee 
 process, when defendants plerr'ed, denying that 
 there wus any debt due. 
 
 Iltld, that the defendants were estopped by 
 their representations from denying their indebt- 
 ness to Cutten. 
 
 Previous to the garnishee process being issued, 
 Cutten had drawn an order recjuesting defen- 
 dants to piy all sums coming due to him under 
 the engineer's monthly certificate, to one Killam, 
 but there was no evidence of any indebtedness 
 of Cutten to Killam. 
 
 //(/(/, that this was not such an equitable as- 
 signment as would prevent the garnishee pro- 
 cess from operating on the fund. James, J., 
 disxrntinij. 
 
 Pir Smith, J. — The onus is on defendants to 
 show consideration for the order. This has not 
 been done. Xon constat that there are not suffi- 
 cient funds in defendants' hands to satisfy both 
 claims, 
 
 Fitzrandolph v. Shanhj et al., 
 
 2R. k(i., 190; 
 1 C. L. T., 705. 
 
 On appeal to the Stipreme Court of Canada, 
 Held, affirming tlw judgment of the Supreme 
 Court of Nova Scotia, Strong and (iwynne, .JJ., 
 dimutinij, that the defendants were estopped by 
 their representation from denying their indebt- 
 edness to Cutten ; and that there was not evi- 
 <lence of such an assignment as would prevent 
 the attacliment from operating on the fund. 
 Appeal dismissed with costs. 
 
 Shnnly v. Fitzrandolph, ~'Sfh April, 1SS2, 
 Cas. Digest, 159. 
 
 27. Res adJudicata-Practlce-Replicatlon 
 
 — Plaintiff brought action for the non-delivery 
 of certain goods. Defendant pleaded, among 
 other pleas, that plaintiflF was estopped by a 
 judgment in a former suit brought by the present 
 defendant against the present plaintiflF for the 
 price of the goods, to which action it was 
 pleaded that the goods had not been delivered, 
 which issue was found against the present plain- 
 tiff. Replication, among others, on equitable 
 grounds, in effect that the judgment pletided had 
 been recovered without plaintiflF having had an 
 opportunity, owing to unforseen circumstances, 
 of substantiating his plea by testimony. The 
 identity of the issues raised in the two suits 
 was clearly established, and, a verdict having 
 been found for plaintiflF, 
 
 atld, that the doctrine of estoppel applied^ 
 that the equitable replication, not setting out 
 
 the circumstances referred to, was insufficient, 
 and that the verdict must be set aside. 
 
 Marmaud v. McCready, 3 R. & C, 66. 
 
 28. Right of way— Obstruction of— Estop- 
 pel — PlaintiflF and one of the defendants divided 
 a lot of land, of which they were tenants in 
 common, into two equal parts, and executed a 
 bond or agreement in the penal sum of !J200, for 
 the purpose of securing to each of the parties the 
 free use of all roads existing at the time on either 
 of the lots of land. PlaintiflF having brought an 
 action for an alleged obstruction of one of the 
 roads referred to, and having proved no title 
 apivrt from the bond. 
 
 Held, that the action was wrongly brought, 
 plaintiflF's remedy being by action on the bond. 
 
 Al»o, that plaintiflF M'as estopped by the agree- 
 ment from setting up prescription, but defendant 
 was not estopped from saying that there was no 
 grant. 
 
 Per Thompson, J. — The words in the bond 
 did not amount to an easement, but, at most, to 
 a license or covenant not to obstruct the way. 
 
 Aluo, plaintiff might have proved a title to the 
 way, independent of the agreement. 
 
 Whitman v. Jones et al., 5 R, & Ci., 443. 
 
 ! 29. Sheriff's return— When the defendant, 
 
 ; as SheriflF, levied on certain goods under execu- 
 ! tions, and a writ of attachment in bankruptcy was 
 I afterward issued against the execution debtor, 
 but the SheriflF after the issue of the attachment, 
 proceeded to sell under the executions and paid 
 over the proceeds to the execution creditors, the 
 Court refused to set aside a verdict against the 
 SheriflF, at the suit of the assignee, for improperly 
 selling the goods, &c., and for his failure to duly 
 execute the writ of attachment and hand over 
 the property of the insolvent to the assignee. 
 
 Held, that the return to the writ of attach- 
 ment did not estop the plaintiflF in the present 
 suit from saying that the same had not been 
 duly executed. 
 
 Kinney, Ansiynee, v. Dudman, 2 R. & C, 19, 
 
 30. Tenant estopped from disputing land> 
 
 lord's title— Plaintiffs' testator, C. C, took a 
 conveyance of land from M. P. M., paying £\W> 
 for the land, at the request of defendants, J. L. 
 and R. L., who had previously occupied and 
 continued to occupy the land. PlaintiflF? having 
 brought an action of ejectment to recover the 
 land from the defendants, produced two wit- 
 nesses, who swore that defendants had paid 
 money to and worked for C. C. in payment of 
 rent ; while one of the defendants, J. L. , swore 
 that defendants never paid rent, but interest, 
 
623 
 
 EVIDENCE. 
 
 524 
 
 and that they were to repay the £100 to C. C, 
 but that no time for rc-paynient was fixed. 
 
 Held, Ijy the Court, acting under a rule nUi 
 to set aside a verdict taken by consent, with tlie 
 power of a jury to draw inferences from the 
 facts, that tlie relation of landlord and tenant 
 existed between C. C. and the defendants, J. L. 
 and R. L., and that consequently they were 
 estopped from disputing his title. 
 
 Crow et al, v. Lowdc.n et al. , 2 R. & C. , 78. 
 
 ESTREATING RECOGNIZANCE - 
 See RECOGNIZANCE. 
 
 EVICTION- 
 Sce LANDLORD AND TENANT. 
 
 EVIDENCE. 
 
 1. Aceonnt book— Only entries referred 
 
 to and read can be commented on to jury- 
 On the trial of issues of fact, an account book 
 was produced, kept by plaintiff, and the atten- 
 tion of tlie Court was turned to certain entries. 
 Held, that, although in going into an account- 
 ing every portion of the book could be referred 
 to by both parties, yet on the trial of the issues, 
 only those portions of the book could be com- 
 mented on to the jury which had lieen referred 
 to and read. 
 
 Ea/on V. Wea/ko.rhe, R. E. D., 48. 
 
 2. Action for wrongful dismissal— De- 
 fence of incapacity — Burden of proof — Defen- j 
 dants, in an action for wrongful dismissal, j 
 sought to justify the dismissal on the ground 
 that plaintiff was incapable of doing the work 
 he had contracted to perform. 
 
 Held, that the burden of proving incapacity 
 was in defendants. 
 
 Jeykcd v. Nova Scotia (r/a.s.s Co. , 
 20 N. S. R., (8 R. it G.), 388 ; 9 C. L. T., 60. 
 
 3. Admissions — Held, that the oral answers 
 of defendant before a commissioner under an 
 order of the Court were properly received against 
 him as admissions, although the interrogations 
 and prior examinations were not tendered. 
 
 Cochran v. Chipman et al., 2 R. & C, 254. 
 
 4. Admissions, evidence of— Effect of— 
 
 Plaintiff brought an action of trespass, claiming 
 
 to be entitled to the Iocuh under a deed from the 
 Inland and River Navigation Company, in 1870, 
 Defendant claimed to be entitled under a deed 
 from the executors of one Stanford, who had 
 accpiired a possessory title by more than twenty 
 years' possession. To meet this plaintiff gave 
 evidence, which was objected to, of admissions 
 by Stanford that he held the land under a sub- 
 lease from lessees of the Shubenacadie Canal Co., 
 who then owned the land, but no lease was pro- 
 duced, and no such lease had ever been recorded. 
 The Court having power under the rule to draw 
 inferences of fact as a jury, concluded tiiat the 
 plaintiff's documentary title did not include the 
 lorvjf, and even if it did, that the possessory title 
 of defendant's grantor could not be affected l)y 
 tiie alleged admissions of Stanford, the lease not 
 having been produced, and no satisfactory 
 reasons being given tor its non-production. 
 
 Q. Whether the evidence of the alleged ad- 
 missions was admissible. 
 
 Fairbanhi v. Kuhn, 2 R, & G,, 147, 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, affirming the judgment of the Court 
 below, that the plaintiff failed to show beyond a 
 reasonable doubt that the lonis iiiquov,a,n witliin 
 the boundary of the canal property and included 
 in tiie deed to plaintiff, but, on the contrary, 
 tlie Court below were justified in coming to an 
 opposite conchisifm ; and further, that the Court 
 below were quite justified in coming to the con- 
 clusion that if the property was ao included and 
 the company ever had a title to the Iocuk, there 
 was evidence of such an exclusive and continuous 
 possession that any such right or title was barred 
 by the Statute of Limitations. 
 
 Crei(jhton v. Kuhn, 13th May, ISSJ. 
 Cas. Digest, 514. 
 
 5. Admission of husband as to land of 
 
 wife— Not binding on her after his decease 
 — The admissions of a husband, as to the boun- 
 daries of land held by him in right of his wife, 
 are not binding upon his wife after his decease. 
 DesBarres, J., dimentiw). 
 
 Dill V. Wilkinx, James, 113. 
 
 6. Agreement- Conflicting evidence as to 
 
 terms— Plaintiff purchased a house from the de- 
 fendant, the consideration stated in the deed 
 being £2.50. Defendant had mortgaged the pro- 
 perty to the Building Society, and there was a 
 lialance due the Society en the mortgage of 
 £210, 16, which plaintiff agreed to assume. The 
 other conditions of the bargain were in contro- 
 versy, and defendant contended that plain tin 
 was to pay him all the sums that he had 
 paid to the Society for dues, in addition to 
 
525 
 
 EVIDENCE. 
 
 526 
 
 the boniiR and entrance fee, and the difference 
 between tlic consideration and the amount duo 
 the ISiiililiiig Society on the mortgage, while 
 pluintilf 8tatcd that ho was only to make good 
 to tlie defendant the payments he had made in 
 ohtaiiiing tiie loan. The evidence was conflict- 
 ing, Imt the plaintiff's statement was corrolwr- 
 atcd hy his wife. 
 
 Helil, tliat plaintiff could not be charged with 
 the amounts paid by defendant to the Society as 
 dues. 
 
 Daley v. Farrefl, R. E. D., 2.S2. 
 
 I. Award -ETidence of arbitrator as to 
 
 mistake — Hi-hl, that wlicre all the parties to an 
 arbitration, and the arbitrators themselves, ad- 
 mitted that a mistake had been niatle in requir- 
 ing one of the defendants, as part of the award, 
 to pay off a certain mortgage, which should not 
 have been ro(|uired, the evidence of the arbitra- 
 tors was receivable as to such a point, as well 
 as on the point of their having taken into con- 
 sideration matters not within their jurisdiction, 
 and tliat as tlie arbitrators luid inadvertently 
 made a mistake with reference to the mortgage, 
 the i'.ward sliouhl be sent back to them to be 
 corrected. 
 
 Tremain el at. v. Jfackiiifosh et al., \ 
 
 R. E. D.,447. 
 
 8. Bankruptcy in England — Proof of 
 
 discharge here— Order of discliarge or certifi- 
 cate sutlicient evidence in Courts in Nova Scotia 
 of liankruptcy in England. 
 
 J////.V v. Smifh,2 0l\.,^28. 
 
 9. Bigamy- Proof of marriage on Indict- 
 ment for— 
 
 See CRIMI\.4l LAW. 
 
 10. Bills of Exchange — Evidence affect- 
 ing - 
 
 See Bills OF EXCHANGE AND PROMISSORY 
 NOTES, IV. 
 
 II. Breach of promise of marriage -Action 
 
 for -Seduction— Evidence— //eW, in action for 
 breach of promise of marriage, that the state- 
 ment of a party to witness that he had had pre- 
 vious connection with plaintiflf was inadmissible. 
 Seduction of plaintiff and consequent pregnancy 
 may be given in evidence in aggravation of dam- 
 ages. 
 
 Oilmore v. Dewar, 1 Thom., {1st Ed.), 73 ; 
 
 (•2nd Ed.), 101. 
 
 12. Burden of proof-Weight of evidence 
 
 —Latter governs where coaflietiag evidence — 
 In an action for an assault, the defendant pleaded 
 
 son axmHlt dememe, and, there being evidence on 
 both 8i<les, the jury found for defendant. 
 
 Hi/d, that, on appeal from a decision refusing 
 a rule nUi, the plaintiff could not rely, on an 
 alleged misdirection by the Judge in not instruct- 
 ing the jury that the burthen of proof of the 
 prior assault was on the defendant, in view of 
 the fact that after minute instructions the jury 
 had believed the evidence of the defendant's wit- 
 nesses, to do wl'.ich they mnst have come to the 
 conclusion, not that the evidence was evenly 
 balanced, but that the evidence on the part of 
 the defendant preponderated. 
 
 Per Thompson, J.— Where there is testimony 
 on both sides of a case, the decision is to be gov- 
 erned by ti\e weight of evidence, and not by the 
 legal docti'ine about biuMlen of proof, 
 
 Andrews v. Landers, 4 R. & (J., 236. 
 
 13. Burden of Proof -New trial-P. Mc- 
 
 Donald, deceased, made a mortgage to plaintiff, 
 which plaintiff brought suit tc foreclose. Defend" 
 ants set out an agreement by which plaintiflf 
 agreed to release the mortgage oji receiving three 
 promissory notes made by one McKinnon, to 
 whom part of the land had been sold by tlie 
 mortgagor. Plaintiff replied that the notes were 
 only taken as collateral security, to lie credited 
 to the mortgagor when paid, and that nothing 
 had been paid on account of them. On the trial 
 of the issue plaintiff proved the mortgage, and 
 defendants produced no evidence whatever. 
 
 The jury found for the defendants. 
 
 Bekl, that the burden of proof of the issue 
 raised was on the defendants, and that as tlioy 
 had proved notliing, the finding must be set 
 aside. 
 
 Murray v. McDonald et (d., R. E. D., 142. 
 
 14. Circumstantial evidence in criminal 
 cases-&e CRIMINAL LAW. 
 
 15. Commission — Rule for commission 
 
 amended by adding permission to examine, in 
 
 addition to the witness specified in oviginitl rule, 
 
 any others. 
 
 Salter v. Hwjhe.i, James, 248. 
 
 16. Commission— The Court will grant a 
 
 commission to examine a witness who was out of 
 the Province when the suit commenced, but re- 
 turned after action commenced, and left again 
 secretly without the knowledge of the party 
 requiring his testimony. 
 
 Bank of B. N, America v. Keith, James, 56. 
 
 17. Commission— Assessment of damages 
 
 — Rule for commission grauteil when no appear- 
 
627 
 
 EVIDENCE. 
 
 528 
 
 ance, to obtain evidence in order to assess dam- 
 ages. 
 
 Wilnon V. Lyle, James, 183. 
 
 18. Commission— Delay in movins —Ap- 
 plication for commission by defendant must be 
 made without unnecessary delay. 
 
 Jones V. Williams, James, 303. 
 
 19. Competency of witness— Witness liud 
 
 no share in tiie vessel at time charter party was 
 made and the action was brought by the parties 
 wh o were owners at that date, subsequently to 
 that date witness became part owner, but sold 
 out to plaintiff a few days before his examina- 
 tion. 
 Held, that he was a competent witness. 
 
 MiUhafl et al. v. Barsn, 2 Thorn., 46. 
 
 20. Conditional acceptance of Bill of Ex* 
 
 change — Fulfilment of condition — Burden of 
 proof— I 
 
 See BILLS OF EXCHANGE AND PROHISSORT 
 NOTES, I., 1. 
 
 21. Conflicting evidence-Entry by party 
 
 — Plaintiff was book-keeper for defendant and 
 claimed a balance of salary due him alleging that 
 the hiring was for §1,600 a year. Defendant 
 contended the plaintifl''s salary was only §1,000, 
 which had been paid him in full. Their respec- 
 tive statements as to the terms agreed upon 
 between them were very conflicting, but in cor- 
 roboration of defendant's was the fact that at the 
 end of the year for which the salary was to be 
 paid the plaintiff entered it in the books as only 
 $1,000. The jury found for plaintiff. 
 Held, that there should be a new trial. 
 
 M'-Xutt V. McDonald, 3 N. S. D., 175. 
 
 22. Constructive delivery of goods to car- 
 
 riers— Evidence of— Where the plaintiff gave 
 evidence, uncontradicted, that defendant, tlie 
 captain of a vessel, told her to send her goods to 
 a certtiin wharf, and th;'.t she sent them there. 
 
 Held, that there was evidence of a constructive 
 delivery to the defendant, which imposed on him 
 the duty of looking after plaintiff's coods and 
 taking them on board. 
 
 Morrison et al. v. Thompson, 2 R. & C, 411. 
 
 23. Contract— Rescission— Evidence to 
 
 support verdict — Particulars of demand — 
 Instructions to Jury— Plaintiff and defendant 
 entered into a contract that plaintiff should take 
 defendant's mill for a period of five years, put 
 the same in repair, etc., and that defendant 
 should furnish supplies, etc., and pay for all 
 
 lumber cut at specifled rates in the months of 
 July and December of each year. Defendant 
 failed to pay plaintiff a sum of 8890 due him on 
 one of the December settlements, and plaintiff 
 having demanded the money of defendant's man- 
 ager, was informed that there was none for him, 
 Plaintiff thereupon said he would have to give 
 up the mill, in reply to which the manager said 
 that that was " what the old man expected." 
 
 Plaintiff and defendant's manager then went 
 over the books, and a balance was agreed upon 
 as due plaintiff, part of whi'cli was paid, and for 
 the balance of whicii the action was brouglit. 
 
 In addition to the above there was evidence 
 of a statement by defendant that he wished to 
 get rid of plaintiff, who was getting " phiyed 
 out," and of his instructing his manager to keep 
 81000 back from plaintiff. 
 
 Held, Weatherbe, J., dtihifanfn, that tliere 
 was evidence to support a finding by the jury of 
 a rescission of the contract, and a promise to pay 
 plaintiff the balance earned. 
 
 Held, also, objection liaving been taken to the 
 sufficiency of plaintiff's particulars, that the ver- 
 dict could be sustained under the item "To 
 amount due plaintiff from defendant for work 
 and labor, and under the common counts, 
 .«!1,131.28." 
 
 Held, also, that the Judge was right in in- 
 structing the jury that evidence was of no 
 importance of a conversation after tlie rescission 
 in whicli defendant said lie was urging pliiintiff 
 to go back to work, and plaintiff made no reply. 
 Tracey v. Young, 5R, & G., IWl, 
 
 On appeal to the Supreme Court of Canada, 
 Held, that for the reasons given in the Court 
 below, the judgment should be affirmed. 
 Appeal dismissed witli costs. 
 
 Young v. Tracey, 17th February 1SS5, 
 
 Cas. Digest, 82- 
 
 24. Conversations witli party, after he bas 
 
 parted with legal interest in property in dis- 
 pute, inadmissible — 
 
 See DEED, 34. 
 
 25. Deat'n of persons by same calamltj- 
 
 No presuription of survivorship— Where two 
 or Tiore persons, and especially where relatives, 
 perifch in the same calamity, the law recognizes 
 no presumption of survivorship ; but in tlie total 
 absence of all evidence respecting the particular 
 circumstances of the calamity, the matter will 
 be treated as if all of them had perished at the 
 same moment, and consequently none of the 
 parties will be held to have transmitted any 
 rights to the other. 
 Hartahome et al. v. Wilkina etal.,2 Old., 276. 
 
529 
 
 EVIDENCE. 
 
 530 
 
 26t De bene esse— A defendant about to 
 
 leave the Province may be examined de bene 
 
 esse, 
 
 Bamahy v. Fait, 2 Thom., 231. 
 
 27. Decree— Putting In evidence -Wbere 
 
 a party intends to avail himself of a decree, and 
 not merely to prove an extrinsic collateral fact (as 
 tliat a decree was made by the Court), he ought 
 regularly to give in evidence the proceedings 
 upon which the decree was founded. 
 
 Eaton V. Wriijht et at., 2 R. & C, p. 514. 
 
 28. Deed -Delay in recording— Evidence 
 
 for jury of want of bona fides — The fact of the 
 lessor of plaintiff having failed to record his 
 deed for seventeen years, together with acts and 
 acknowledgments by him inconsistent with his 
 title, subsequent to the making of the deed to 
 him, are evidence for the jury against its valid- 
 ity as a bonajtde conveyance. 
 
 A defendant in possession, under an agree- 
 ment to purchase the land from a third party 
 may defend his possession by showing fraud in 
 the deed under which the lessor of plaintiff 
 claims. 
 
 McKinnon v. McDonald, James, 7. 
 
 29. Deed of mortgage— Evidence of deliv- 
 ery— 
 
 See DEED, 18 & 24. 
 
 30. Deed — Recitals in — EBTect of — Tbe 
 
 Court will not favor objections taiien against a 
 sale of real estate by an administrator for pay- 
 ment of debts under an order of the Governor 
 and Council after the purchaser has been thirteen 
 years in possession, and will in such case receive 
 the recitals in the deed as presumptive evidence 
 that the sale was duly advertised. But where 
 the administrator's deed conveyed more land 
 than was described in the advertisement, the 
 variance held fatal to defendant's title to the 
 surplus. 
 
 Gillis V. Campbell, James, 48. 
 
 31. Deed— Registration of- Evidence of— 
 
 In an action for breach of covenant for title 
 contained in a deed from defendant to plaintiff, 
 the plaintiff put in evidence a mortgage on 
 which was indorsed what purported to be a 
 certificate of registration. The execution of the 
 mortgage was proved, \)Ut the certificate was 
 not proved to have been signed by the proper 
 officer, nor was it tendered as evidence indepen- 
 dently of the mortgage. 
 
 Held, that aa the plaintiff had had no notice 
 of the mortgage, his title was good unless the 
 mortgage was registered prior to the registra- 
 
 tion of the deed, and that in order to prove such 
 registration it was necessary to show that the 
 certificate had been signed by the proper officer, 
 the mere production or a paper purporting to be 
 a certificate not being sufficient under 4th Re- 
 vised Statutes, chap. 79, sec. 18. 
 
 Oo^Ud V. McGrefjor, 1 R. & G. 339. 
 
 32. Deed— Registry of— Certificate- Proof 
 
 of— To an action of trespass defendant pleaded, 
 justifying under an alleged grant of a right of 
 way. Plaintiff replied excess, and proved that 
 a gate on the property had been removed and 
 torn down in the exercise of the alleged right of 
 way. Plaintiff and defendant both claimed their 
 adjoining lots by conveyance from the same 
 grantor, and defendant relied on the fact that 
 his tleed, which comprised the grant of the right 
 of way over plaintiff's land, had been registered 
 long previously to the registry of plaintiff's deed, 
 but no evidence was given as to the registry or 
 the date thereof. 
 
 Held, per James, J., that under the decision 
 in Gould V. McGreijor, 1 R. & G., .S39, the cer- 
 tificate should have been tendered, and proved 
 if objected to, and further that plaintiff was 
 entitled, under the evidence, to hold his verdict 
 on the ground of excess. 
 
 Per Weatherbe, J. , that the locus of the tres- 
 pass had not been identified by defendant with 
 the way as described in his deed. 
 
 McDonald, J., dimentimj, 
 
 McCormack v. Denniaon, 3 R. & G., 71. 
 
 33. Deed - Registry of - Certified copy — 
 
 Affidavit— Where a certificate of the attestation 
 
 of a deed contained no date, 
 
 I Held, that the deed was properly recorded in 
 
 j the registry of deeds office, the words of the 12th 
 
 section of ch. 79, 4th R. S. , requiring the date 
 
 of attestation, being merely directory. 
 
 Where a certified copy of a deed was offered 
 
 in evidence under sec. 33 of ch. 96, 4th R. S., 
 
 without an affidavit showing that the original was 
 
 not in the possession, &c., of the party, but the 
 
 defendant, who offered the copy, was examined 
 
 as a witness at the trial, and proved that the 
 
 original was not in his possession, &c. 
 
 Held, that the certified copy was properly 
 
 received 
 
 McKemie v. Lamont, 2 R. & C, 517. 
 
 34. Deed— Secondai7 evidence— Founda* 
 
 \ tion for— Where a deed has been traced into the 
 j actual possession of a party, it is necessary to 
 j call him to account for it before secondary evi- 
 j dence can be let in ; but where doubt exists as 
 j to whether it was actually left with a party who 
 I has no interest in it, 
 
631 
 
 EVIDENCE. 
 
 632 
 
 Held, BuflBcient to prove a search amongst the 
 papers of the person who it was presumed had 
 last liad possession of it. 
 
 Barto V, Morris, Cochran, 90. 
 
 35. Defendant In possession may prove 
 
 fraud in plaintiff's deed from a third party. 
 
 McKinnon v. McDonald, James, 7. 
 
 36. Demand or possession — Proof of — 
 
 Proof of part of a conversation, tlie witness 
 having left before it was terminated, is not 
 sufficient evidence of a demand of possession. 
 
 Etter V, Copj), James, 344. 
 
 37. Deposition taken de bene esse remov- 
 ed from files — Foundation for admission of, 
 not laid —Where plaintiffs' attorney had taken 
 from the files of tlie Court a deposition taken 
 de he.ne e.-me on the part of the defendant, but the 
 defendant did not succeed at the trial in proving 
 tlie illness or absence from the Province of the 
 witness with sufficient clearness to entitle him 
 to havj (lie deposition read, if procured. 
 
 Held, that the fact of the deposition having 
 
 been removed from the files of the Court, did 
 
 not constitute sufficient ground for disturbing a 
 
 verdict in favor of plaintiffs. 
 
 McDonald et al. v. Merchants' Marine Ins. Co. , 
 
 2R. &C., 133. 
 
 38. Deposition taken for, but not U5ed at 
 
 first trial, may be used at second trial — Where 
 the deposition of a witness had been taken but 
 not used at the first trial, in consequence of wit- 
 ness being ^^ble to attend, but a new trial having 
 been awarded, and the witness dying previous to 
 such new trial, 
 
 Held, that the deposition was receivable in 
 evidence at such second trial. 
 
 Bron-nv. Boole, 1 Thom., (1st Ed.), 108 ; 
 (2nd Ed.), 137. 
 
 39. Discovery — Bill for - The plaintiffs 
 
 sought in this suit discovery of facts necessary 
 to enable them to plead to an action at law 
 brought againat them by the defendant, and the 
 ■writ contained a prayer for relief in respect of 
 the matters of which discovery was sought. On 
 taking out the writ, plaintiffs obtained an order 
 restraining defendant from further action in the 
 common law suit, and defendant, having filed his 
 answer, sought to have the restraini-ig order dis- 
 charged. 
 
 Held, that the plaintiff, having sought relief 
 in this Court, had "elected this tribunal, and 
 could not at the same time make the matters 
 referred to in their writ the subject of pleas to 
 the action at law ; that the evidence sought for 
 
 ' was, therefore, not pertinent to the defence in 
 
 the action at law, and that the restraining order 
 
 I having been granted solely on the ground that 
 
 ] discovery was necessary, must bo discharged, 
 
 j irrespective of the sufficiency of the defendant's 
 
 answer ; that the present suit, although it could 
 
 not be treated as a suit for discovery, still con- 
 
 tinned as a suit for relief, but that plaintiffs 
 
 1 might discontinue the su't and plead the facts 
 
 ■ set out in the writ as a defence to the action at 
 
 law. 
 
 The Cape Breton Co. (Limited) v. Gisborne, 
 
 R. E. D.,240. 
 
 40. Discovery of fresb— This was an appli- 
 cation made on behalf of plaintiff for a new trial, 
 upon the ground of discovery of material evidence 
 after trial. The suit was tried before Mr. Jus- 
 tice Wilkins, in April, 1873, and a verdict foii.'d 
 for defendants. 
 
 The suit was bi-ouglit to recover the amount 
 of an account for goods sold and delivered, and 
 the expense of a protest on a bill of exchange 
 which defendants refused to accept. 
 
 The defendants paid .S34.15 into Court under 
 a plea adapted to the case, and as to the balance 
 of plaintiff's claims, pleaded never indebted. 
 There was a special plea and pleas of set-oil', but 
 they did not affect the merits of the present in- 
 (juiry which arose out of the fact, as alleged by 
 plaintiff, that defendants purchased goods of him, 
 he residing in Montreal, for which he was to reiuit 
 I stock to be sold on commission, and not having 
 I fulfilled their engagements in this behalf, on the 
 ; 24th October, 1870, he wrote a letter to defend- 
 ants setting out the transaction and its terms, and 
 requiring immediate payment of their account. 
 
 The evidence on the part of plaintiff and 
 defendants as to the terms of the contract was 
 highly conflicting, and in order to secure a pre- 
 ponderance, plaintiff sought to prove out of the 
 mouth of William C. Brennan, one of the defend, 
 ants, the fact of having received a letter from 
 plaintiff. The Judge's minutes read as follows : 
 "Witness being under cross-examination, looks 
 at a paper shown by King, plaintiff's counsel, 
 ' I don't remember ever receiving a letter like 
 this from plaintiff.'" No dates or address or 
 description of the letter, or its contents, by 
 whom written, or to wliom addressed was given, 
 nor did the Judge's minutes show that any notice 
 to produce the original letters, if in defendant's 
 possession, had been given. The other defendant 
 "answered in precisely or nearly the same lan- 
 guaje. Looked at the letter. I don't remember 
 receiving a letter of which this is said to be 
 a copy." 
 
 Plaintiff's attorney, in his affidavit upon 
 which his rule ni4 for a new trial was grounded, 
 
633 
 
 EVIDENCE. 
 
 534 
 
 supplied a number of facts no*^ to be found in the 
 learned Judge's minutes. For instance he swore 
 tliat notice to produce the original letter had 
 Ijeen given defendants It is doubtful whether 
 the Court can look outside of the Judge's minutes 
 or receive proof by athilavit of any fact which 
 if proven at the trial should appear there. 
 Defendant's answer, as given in an uliidavit, 
 ia entirely different to what the learned Judge's 
 niiiiutes furnish. And plaintiff's attorney pro- 
 ceeded to show that since the trial he had 
 obtained from the assignee in insolvency of 
 Aimer A. Hremuer, one of the defendants, the 
 original letter of which he luul exhibited to ; 
 iiim a copy, with some slight exception. Upon 
 tills state of flic* 3, with the additional one, veri- ' 
 tied that tlie deponent did not know until after 
 the trial that the assignee liad th's letter, plain- 
 tiff sought for a new trial. The contents of the 
 letter were inconsistent with the version of the 
 contract as testified to l)y defendants, and it was 
 within a month or so after the goods were sup- 
 plied, and was not, so far as known, replied to 
 liy (U'fendants, anil that was the most that could 
 U'said in favor of i.laintiff's position. But none 
 of tlie court thought that this was a discoverj'of , 
 material and important evidence after a trial 
 had, siicli as to justify a new trial. Tlie want 
 of notice to pro<luce the original letter on the 
 trial is a fact of great inipoi'tance, and in the 
 al)sence of such a notice shown oji the Judge's 
 inimites, it could not be supplied dehors by affi- 
 davit. 
 
 The rule itisi foi- a new trial therefore dis- 
 charged, witli costs. 
 
 Siijmour V. liremiier it a/., unreported. 
 
 41. Documents, ancient — Search for— 
 
 W. re an ancient allotment book of a town- 
 ship referred to a writ of partition and plans 
 and what purported on their faces to be copies 
 of such plans, came out of the proper custody 
 and had for a long period of time been recog- 
 nized by the proprietors of the township as 
 innnimenta of their title, they will oidy be 
 le'i'ived in evidence after proof that search has 
 heen made for the originals and that they can- 
 not he found. 
 
 SoiKjKter V. Payzant, 2 Thom., 408. 
 
 42. Document-Secondarr evidence of- 
 
 Under the County Court Act of 1877, cap. 6, 
 sec. 'J,'), there is no appeal from the decision of 
 the County Court Judge on questions of fact. 
 
 Plaintiff sued defendants for work done for 
 the British Gold Mining Company, and together 
 M'itli other evidence produced a witness who 
 said he had been one of a deputation that had 
 Waited upon the manage' of the company to 
 
 ascertain of whom it was composed, and that 
 said manager had produced a document and 
 read it, stating that T. W. and J. W., the 
 parties sued (with others whom he named), 
 were the parties concerned in the company ; 
 that the document was tlien handed to witness 
 who read part of it to the company present who 
 were quite satisfied that there was such a com- 
 pany. This statement was held to lie admissi- 
 ble as secondary evidence of the document. 
 
 Lockhnrt v. Watwn et a/., ,3 R. & C, 54.3. 
 
 43. Document— Secondary evidence of— 
 
 Where the jdaintiff, the wi(h)w of fJ. Hazell, 
 suing fm a bond for maintenance made to her late 
 husband and herself, testified that she had the 
 bond in possession after her husband's death, 
 that .she gave it to her .son to be recorded and 
 had not seen it since, a id the son testified that 
 he had sent it by the magistrate to get it record- 
 ed and had not since seen it, and the document 
 was traced to the office of the Registrar of Deeds, 
 who testified that some one supposed to be enti- 
 tled to it had got it out of his possession, and 
 that he had searched in his office in vain for it; 
 a paper sworn l)y the Registrar to be an accurate 
 copy of the Registry was achnitted as secondary 
 evidence. 
 IleJd, that the evidence was properly received. 
 Haz'll V. Di/a.->, 2 R. & C, 36. 
 
 44. Document — Secondary evidence of— 
 
 Foundation— //«/(/, y*.r Wilkins, J., that where 
 one of the originals of an agreement between 
 defendants L. & F. had been in the possession of 
 L. and no evidence was giving of a search by or 
 with L.'s executors, or among the papers of de- 
 ceased for it, secondary evidence of the agree- 
 ment had been improperly received. 
 Johiiwii et at. V. Lifhiioiref al., 2 R. & C, .5()7. 
 
 4,5. Document — Secondary evld( nee of— 
 
 Proofofsearch— Misdirection— Plaint itis claim- 
 ing a certain lot of land under grant from the 
 Crown, passed during the past century, brought 
 an action of trespass against defendant for cut- 
 ting timber on the land. 
 
 At the trial plaintiffs produced their original 
 grant, and tendered as evidence to identify the 
 locHS with their lot, ancient copies of the allot- 
 ment book and plan of the township in which 
 the lands lay which had often been received in 
 evidence in other suits, the originals having been 
 lost. These copies were received iiy the Judge 
 who tried the cause (McCuUy J.), without proof 
 of a search for the originals. 
 
 Held, that they had been improperly received 
 in evidence. 
 
535 
 
 EVIDENCE, 
 
 536 
 
 Tho Judge directed the jur that plaintiffs 
 had proved a documentary title. 
 
 Held, that under the above circumstances, 
 there had been a misdirection on that point. 
 Church Wankiut of Falmouth v. Vawjhan, 
 
 2R. &C.,438. 
 
 46. Easement — Proor of — The plaintiff 
 
 claimed a right of way over land of the defend- 
 ant fr'oin a meadow lying in the rear of defend- 
 ant's land to tlie liighway. He testified on the 
 trial tliat T. Gourley, the previous owner of liis 
 lot of land, enjoyed an easement for thirty 
 years, adversely to the party from whom the 
 defendant derived title, but he produced no deed, 
 and did not show that the easement, if such 
 there was, had been conveyed to liiin. He also 
 claimed under a deed of the meadow from the 
 executors of T. Gourley in 1861 ; but as there 
 was no evidence, except that of the plaintiff him- 
 self, of a continuous user by (Jourley for twenty 
 years, and tlie evidence taken altogethei' nega- 
 tived such a user, it was lield that neither T. 
 Gourley nor his executors could convey any 
 right of way to tlie plaintiff, and that the verdict 
 for the defendant must lie sustained. 
 
 Tuiiptr V. Camjilnl/, "2 R. & C, 68. 
 
 47. Ejectment br order of Chancery to 
 
 obtain evidence — Parts of conversation — 
 Ejectment tried by oi'der of Chancery to obtain 
 evidence to be adjudicated on in that Court. 
 Verdict taken by consent, subject to the opinion 
 of the Supreme Court. The Court declined to I 
 consider the question otherwise than in accord. | 
 ance with the common law practice, and there- i 
 fore refused to decide upon matters of fact ] 
 which should have been but were not found by 
 the jury, and set aside the verdict, but without 
 costs. 
 
 Proof of part of a conversation, the witness 
 having left before it was terminated, is not suf- 
 ficient evidence of a demand of possession. 
 
 Etter V. Copp, James, 344. 
 
 4S. Evidence left to Jury as question of 
 
 law — An action of trover was brouglit for three 
 sheep, two of which plaintiff alleged that she had 
 brought with her to the residence of one McKay, 
 with whom she was living when they were taken, 
 and one of which she had purchased when there. 
 The sheep were seized as the property of McKay. 
 McKay and his sister, with another witness, 
 gave evidence substantially the same as that of 
 the plaintiff as to the property in the sheep, 
 and the mode in which they had been acquired. 
 There was evidence that the sheep bore McKay's 
 mark, and a witness for defendants testified 
 that the plaintiff had admitted that McKay had 
 
 appropriated to his own use her sheep, and said 
 he was to have given her others, but hud not 
 done so, and that he understood plaintiff's sheep 
 had been killed. The Judge, after referring to 
 the conflicting evidence, told the jury that if the 
 defendants' evidence was true, it was matter of 
 law that the sheep were not the plaintiff's, and 
 he recommended them to bring in a verdict for 
 defendants upon the ground, if they took the 
 same view of the evidence, adding that it would 
 be better for the parties that the jury ■should 
 follow the law, as a departure from the ruins of 
 the Court would only tend to prolong litigation. 
 Held, that the verdict must be set aside on 
 the ground of misdirection. 
 
 McLellan v. Ingraham tt al., 3 R. & G,, 164. 
 
 49. Evidence necessary to recover con- 
 sideration on failure of agreement for sale of 
 land — In order to recover back money i)iiiil l)y 
 plaintiff, under an agreement for sale of lamls to 
 him, on tlie ground of failure of consideration, 
 plaintiff must give evidence of the terms of the 
 
 agreement. 
 
 McDonald v. McDonald, James, 41. 
 
 50. Evidence of partial failure of consid* 
 
 eration for note — The defendant A. at an 
 auction of hay, bid off the unsold portion esti- 
 mated at twenty-five tons at Sl'2 per ton, and 
 gave to plaintiff his note for $.300 on tiie under- 
 standing that if the (juantity sold fell sliort of 
 the estimated amount, a proportionate deduc- 
 tion would be made from the face of the note. 
 The quantity having been largely over-estimated. 
 Held, that it was competent for the Court to 
 receive evidence of the circumstances under 
 which the note was given to show a partial 
 failure of consideration. 
 
 FUher v. Archibald tt al, 2 N. S. D., 298. 
 
 51. Evidence of execution of deed -The 
 
 subscribing witness to a deed need not be pro- 
 duced if the handwriting of the party making 
 the instrument can be otherwise proved. 
 
 Woods V. FroAer, 2 Thom., 184. 
 
 52. Evidence of seduction in action for 
 
 breach of promise of marriage — 
 
 See HUSBAND AND WIFE. 
 
 53. Evidence of witness at previous trial- 
 Effect of other side reading it at second trial— 
 On a second trial an objection made by defend- 
 ant's counsel to using evidence taken on a for- 
 mer trial was over-ruled, and plaintiff's counsel 
 thereupon read the evidence of several witnesses 
 
537 
 
 EVIDENCE. 
 
 538 
 
 on the former trial, including several witnessea 
 calltul for tlio ilefoiice. 
 
 The presiding Judge ruled that plaintifif's 
 
 On appeal to tiM: Sujireme Court of Canada, 
 field, artinniji,? the judgment of the Court 
 helow, that undor said section, in an action 
 
 counstil made the evidence of defendant's wit- against administrators made parties to an action 
 nesscH his own by reading it, and gave judgment i after issue joined, hut before trial, the plaintiflf 
 for defendant. I cannot give any evidence in hia own favor of 
 
 A new trial was ordered. I dealings with a deceased defendant. 
 
 Traver'* v, McMurray, 7 R. & <J., 509 ; ; Henry. J., dUHeutiiuj. 
 
 8 C. L. T., G3. i Chtdey v. Murdoch, 2 H. C. R., 48. 
 
 ui. Evidence put in below, but not re- 1 
 
 ported up — A cause will not be sent back merely j 
 because evidence was put in which was not 
 takvn down by the Judge below. The court 
 will only look at the evidence as it comes before 
 
 it. 
 
 Slocomb V. Morse, 20 N. .S. R., (8 R. & G.), 60. 
 
 i 
 
 I 
 
 35. Executors and administrators — 4th 
 
 R. S., c. 96, 8. 41— D. made a, mortgage to 
 defeiiilanls' testator, to secure the payment of 
 three jjromissory notes. The notes were paid, 
 andlmnded over to D., upwards of twenty years ] 
 before this action was brought by D. to compel 
 defendants to execute a release of the mortgage. 
 During' the subsecjuent period no payments were i 
 made liy 1). or demanded of him, and the estate 
 of testator was settled without any reference to \ 
 tlie mortgage as an outstanding debt due the 
 estate. After bringing tiie action, D. became 
 insolvent, a!id made an assignment under the ' 
 Insolvent Act, and his assignee intervening, ! 
 under an order of the Court, became pL'iutifl'in 
 the suit. 
 
 fftld, that defendants must be decreed to ex- 
 ecute a release of the mortgage, though without 
 costs, they not having opposed the proceedings 
 of plaintiff. 
 
 IleJd, alio, that D., not being a party to the 
 suit when evidence was taken, was not prevented 
 by section 41 of chapter 96, 4th R. S. from giving 
 evidence of tran^r-otions with defendant's tes- 
 tator, deceased. 
 
 Bdl, Aisirjnee, v. Brown et al., R. E. D., 20. 
 
 56. Execution and administrators— 4th R. 
 
 S., c. 96, 3. 41— Same as 5th R. S. , c. 107, s. 16— 
 The proviso in soction 41 of c. 96, Rev. Stats., 
 (4th series) "Of witnesses and evidence," applies 
 to evidence tendered in causes where the execu- 
 tors or administrators have became parties by 
 suggestion, after the death of the original party ; 
 the word "brought" in said proviso being con. 
 strued with the word "evidence" immediately 
 preceding and not with the words "action or 
 after proceeding. " 
 Wilkins, J., dissenting. 
 
 Ghesky v. Murdoch et al., 2 R. & C, 321, 
 
 57. Executors and admlnistrators-4th R. 
 
 S., c. 96, a. 41— Same as 5th R. S., c. 107, a. 16— 
 The agent of a life insurance company is not 
 competent * 'give evidence on behalf of such 
 company of any statements or acknowledge- 
 ments of the deceased insured in an action by 
 his executor or administrator against such com- 
 pany, under ch. 96, 4th R. S., sec. 41. 
 Wilkins J.. dixKentimi. 
 
 O'Donnell v. Confederation Life Ins. Co., 
 
 2 R. & C, 570. 
 Reversed on appeal to the Supreme Court of 
 Canada. 
 
 The Confedei'ation Life Association Comjiany 
 of Canada v. O'Donnell, 11th February, 
 1879, Cas. Digest, 208. 
 
 5S. Expert testimony— Definition of- At 
 
 the trial of an action for trespass by the over- 
 flow of water on plaintiffs' land caused by a dam 
 erected by defendant, evidence was rejected 
 which had been offered by the defendant to 
 prove the respective levels of water at the 
 point where the dam was erected, and at the 
 meadow alleged to have been overflowed in 
 consefjuence of the erection. The w'tness whose 
 evidence was rejected testified that he was a 
 practical mill builder, that he had erected water 
 power mills, and that in doing such work he 
 had to take levels to get a height, but that he 
 did not know how to use a theodolite. 
 
 Held, that the evidence should have been re- 
 ceived. 
 
 Per Ritchie, J. — The weight to be given to 
 the evidence was a matter for the jury under 
 the direction of the Court, and the competency 
 of the witness to take levels and to make meas- 
 urements should have been a subject of cross- 
 examination. 
 
 Expert evidence is an opinion by a qualified 
 person on facts already proved involving scien- 
 tific or technical knowledge, and is not evi- 
 dence of things done or measurements taken 
 which any one is competent to prove, the weight 
 to be given to his evidence depending upon his 
 ability. 
 
 Cain V. Uhlman, 20 N. S. R., (8 R. & G.), 148 ; 
 
 8 C. L. T., 373. 
 
539 
 
 EVIDENCE. 
 
 640 
 
 59. Facts within knowledge of defendant 
 
 — The C'ourt have a right to recjuire uii explicit 
 explanation of facts neccHsarily within the de- 
 fendants' knowledge on the pain of treating his 
 plea as fraudulently evasive or false. Facts not 
 80 within his knowledge may be stated less dia. 
 tinctly. In the latter case it may be proper to 
 admit statements of information and belief which 
 would be inadmissible to substantiate a fact 
 before a jury, the province of the Court or Judge 
 being not to establish a fact, but to ascertain 
 whether there is a fact to be tried. 
 
 The Bank of Xora Scotia v. Chipman et ai, 
 
 1 N. S. I)., 521. 
 
 60. Finding of Master sustained— Plaintiff, 
 
 as administrator, complained in his writ that 
 defendant wrongfully caused a vessel to be con- 
 demned and sold, and received the proceeds, 
 and appropriated them to his own use, refusing 
 to account to him therefor. The bill was dis- 
 missed, with costs, as to two of the defendants, 
 as there was no evidence of their havin^' received 
 anything. As to another defendant, the master 
 reported that he had received upwards of lf400, 
 but that he had disbursed a greater amount. 
 
 Exceptions were taken by plaintiff to this 
 report, which the Court held to be sustained by 
 the evidence, and the decree was for plaintiff, 
 with costs. 
 
 Metzler v. Spencer et al, R. E. D., 511. 
 
 61. Foreign law— Evidence of- A witness 
 
 must state some ground, professional or practical, 
 on which his knowledge rests, to qualify him to 
 speak of the law of a foreign 8*ate. It is not 
 enough for such a witness to say chat he is 
 familiar with the foreign law, without stating 
 the ground on which his knowledge rests. 
 
 Where a witness had i-esided in this Province, 
 as American Consul, for six years, during which 
 time certain currency laws were passed in the 
 United States, of which hi& only knowledge was 
 derived from having them transmitted to him. 
 
 Held, that this was not a sufficient qualifica. 
 tion, in the absence of an assertion that his 
 official duties required him to acquaint himself 
 with the currency laws vi his country. 
 
 McKemie v. Gordon, 1 N. S. D., 153. 
 
 62. Fresh evidence- Application for new 
 
 trial on ground of discovery of fresh evidence — 
 See KEW TRIAL. 
 
 63. Goods conveyed in contemplation of 
 
 insolvency — Assignee in action of trover need 
 not prove demand — The plaintiff, as assignee in 
 insolvency, brought an action of trover for goods 
 
 which had been conveyed by one Renwick to 
 defendant, in contemplation of insolvency. The 
 goods had been sold by defendant l)efore action 
 brought. 
 
 HM, that evidence was not necessary of a 
 denmnd and refusal. 
 
 Bliijh V. Darlinij, 3 R. & G., '248. 
 
 64. Improper reception of-Plaintlff sold 
 
 a mare to defendant for 8140, in part payment 
 of which he accepted an order drawn by defciul- 
 ant on Albert Graves, for $80. To an action l)y 
 plaintiff on the original cause of action, defumlunt 
 pleaded, among other pleas, "non-presentment 
 for payment, no notice of dishonor, and etlects 
 in the hands of Graves, to the amount of the 
 bill, at the time it became due." The issues 
 thus raised were not put to the jury, their atten- 
 tion being directed to issues on the count for the 
 original cause of action, and to conflicting state- 
 ments of the parties as to the terms or con- 
 ditions on which the order was received by 
 plaintiff. The evidence of plaintiff, for wliora 
 the jury found, was : " the order was not taken 
 as a payment. I said I'd take it, and try and 
 get it ; if so, well and good ; if not, I must iiave 
 my money. " 
 
 Held, that the effect of this evidence being to 
 vary the note, and control its legal operation, it 
 was improperly received, and that the rule for a 
 new trial, should, therefore, be made absolute. 
 
 Per Wilkins, J., dixsentinq. — It having been 
 found by the jury that plaintiff did not ac(;ept 
 the order on Graves in payment of his demand, 
 his remedy on the contract was not suspended 
 or affected by his taking the bill. 
 
 Iwjlis V. Allen, 1 N. S. D., 101. 
 
 65. Improper reception of— Improper 
 
 reception of testimony will not invalidate a 
 verdict for plaintiff when there is suliicient 
 additional evidence to sustain it. 
 
 Russell V. Marshall, James, .S30. 
 
 66. Informer-Sth R. 8., c. 103— Inrormer 
 
 renouncing claim — Defendant, the holder of a 
 " shop license," was convicted before the Stipen- 
 diary Magistrate for the City of Halifax on the 
 information of J. for having unlawfully allowed 
 liquor sold by him to be consumed on the 
 premises, in violation of the provisions of the 
 Liquor License Act of 1886. 
 
 In the County Court for district No. 1 the 
 conviction was quashed with costs on the ground 
 that the informer, not having renounced his 
 claim to the fine before being sworn as a witness 
 in the Court below, was incompetent as a wit- 
 ness and there was no further evidence to sup- 
 
Ml 
 
 EVIDENCE. 
 
 542 
 
 port the conviction. A further appeal being 
 Uikfii to the Supreme Court, 
 
 III Id, thiit the niiitter living one of a criminal 
 niitiire, there was no iippeitl from the County 
 Court to tlie Supreme Court. 
 
 .1^0, tluit the provisions of f)th R. S., c. 103, 
 excluding thn informer in certain cases from giv- 
 ing evidence, arc not applicable to suits brought 
 k'fiiif the Stipendiary Alagistrute of the City of 
 Hidifiix, but if they can be held to apply, the 
 Judge of the County Court on trying the case 
 rfe novo, should have received the evidence of 
 the informer, he having renounced all claim to 
 the penalty before being sworn. 
 
 Quaere, whether there was an appeal from the 
 Stipendiary Magistrate to the County Court. 
 
 Qiiwre, alxo, whether the provisions of 5tl) 
 R. iS,, c. 103, are applicable to prosecutions 
 under the Act of 1886. 
 
 Queen v. Shepearil, 20 N. S. R., (8 R. & G.), 476 ; 
 
 9C. L. T.,253. 
 
 67. Insurance— Breach of warranty — 
 
 Proof of breach — Protest — Defendant in an 
 action on policies of insurance relied among other 
 defences on an alleged violation of a warranty 
 that the vessel would sail on her voyage not later 
 than 3id Dec, 1882. The vessel set sail on that 
 day and was subsequently lost. The protest, by 
 mistake, stated the 4th Dec, 1882, as the day of 
 sailing. 
 
 Held, that even if the protest admitted a 
 breach of warranty it could not be given in evi- 
 dence to prove plea of breach. 
 
 liobertKon et a/, v. Pwjh, 20 N. S. R., 
 (8R. &G.), 15. 
 Affirmed on appeal to the Supreme Court of 
 Canada. 
 
 Roherhon v. Pwjh, 15 S. C. R., 706; 
 9 C. L. T., 17. 
 
 68. Insurance— Presumption as to notice 
 
 —The sixth condition of the policy required the 
 insured to give notice of loss in writing forthwith 
 to the agent of the corporation, at his office in 
 Halifax, and to furnish preliminary proof to the 
 corporation in fifteen days. The fire took place 
 January 17th. PlaintilF, residing at Sydney, 
 C. B., where the insured property was situated, 
 went on the next day to the sub-agents, who sent 
 a telegram to the agent, and on January 23rd 
 plaintiff sent the agent written notice, which he 
 received January 27th. The preliminary proofs 
 were prepared by the sub-agents, January 22nd, 
 and received by the agent early in February — 
 the agent could not tell the exact date. 
 
 Hdd, that the notice of loss was sufficient, 
 and that the jury might fairly presume that the 
 
 preliminary proof had been sent in within fifteen 
 days, wiiich did not exjjire until February 2nd. 
 Peppit v. N. U. it- Mtrvaiitile Inn. Co., 
 
 \ R. &(;.,219. 
 
 60. InterroKatories - Foreign companies 
 
 to answer — The Court will order a defendant 
 corporation doing business in Nova .Scotia, 
 though incorporated abroad, to answer interro- 
 gatories, under 4th R. S., c. 96. 
 
 The officers of such company can be interroga- 
 ted, though not mentioned by name in the com- 
 mission to interrogate. 
 
 Hart tt al. v. Wt.itfm Union Tel. Co., 
 
 2R. &C., 533. 
 
 70. Interrogatories — Order Tor delivery 
 
 of interrogatories and for discovery on oath 
 before defence filed— 5th R. S., c. 103, 0. xxxi. 
 R. 1 — Discretion of Judge — An order was made 
 by a Judge at Chnnibers giving defendant leave 
 to deliver interrogatories to a number of officials 
 of the plaintiff bank, and requiring such officials 
 to make discovery on oath of certain documents, 
 correspondence, Ac. At the time the order was 
 granted no defence to the action had been deliv- 
 ered. 
 
 Held, that unde/ 0. xxxi, R. 1, the Judge had 
 I a discretionary power to make such order before 
 the delivery of the defence. 
 
 Alio, that the objection to the order on the 
 groimd that it ordered discovery and inspection 
 as well aj the delivery of interrogatories, could 
 not be sustained. 
 
 The Covimtrcial Bank of ]Yindmr\. Bechi'ith, 
 
 7R. &G.,527; 
 8 C. L. T., 60. 
 
 71. Judgment by default— Proof of— 
 
 Defendant put in, as evidence of a judgment, the 
 so-called "record by default," in the form No. 
 11 of schedule A, cap. 94, 4th R. S., signed by 
 the plaintiff's attorney. 
 
 Held, that this was legal evidence of a judg- 
 ment. 
 
 McDonald v. Fergusson, 1 R. & G., 70. 
 
 72. Judgment on appeal from Magistrates 
 
 — Evidence of — No record being filed in the Su- 
 preme Court, of judgments in causes appealed 
 from Magistrates' Courts, the termination of the 
 proceedings under which the arrest vas made is 
 sufficiently proved, in support of an action for 
 malicious arrest, by the testimony of a compe- 
 tent witness who heard the judgment on the 
 appeal pronounced in open Court by the Judge. 
 Cox V. Gu7m, 2 R. & C, 528. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, reversing the judgment of the Court 
 below, that such evidence was inadmissible, and 
 
543 
 
 EVIDENCE. 
 
 544 
 
 was not proper evidence of a final judgment of 
 the Supreme Court of Nova .Scotia. 
 
 (hinnv.Cox, 'AH. C. R., '296. 
 
 73. Latent defect In grant -Parol evi- 
 dence to r'^medy — A latent dcfeol in a grant 
 cannot bo rcmodiud liy parol evidence. 
 
 In ordc- to correct an error in tlio descriptive 
 part of a grant by paiol evidence, the evidence 
 niuHt l)e Hucii aH to leave no doubt of the inten- 
 tion of the grantor. 
 
 Jirtniiofkw Frcwer, James, 178. 
 
 74. Libel— Evidence In actions for— 
 
 5tr DEFAMATION. 
 
 75. License to sell — Proof of— Proof of 
 
 the minute in the books of the Council author- 
 izing a sale, is sutHcicnt evidence of a license to 
 sell. 
 
 Clillin v. Campbell, James, 48. 
 
 76. Marriage — Proof of- The testimony 
 
 of tile minister who married the parties that he 
 had a marriage license which was brought to 
 him by one of the parties ; that he duly per- 
 formed the same ; that all the forms of law 
 were observed as required by the license, and 
 that the marriage was performed according to 
 the rites and ceremonies of his church, is suffi- 
 cient proof of the license having been issued 
 and returned, and of the marriage having been 
 duly 8(jlemnized. 
 
 Wilkins, J., didntante. 
 
 Queen v. Allan, 1 N. S. I)., 5; 
 2 Old., 373. 
 
 77. Minutes of evidence- Explanation of 
 
 them by Judge on argument of appeal — 
 
 Held, that the Court in banc could receive the 
 explanation of the Judge as to the nature of the 
 question to which a statement of defendant on 
 the minutes of evidence was an answer. 
 
 Royal Canadian Insurance Co. v. Smith, 
 5R. &G.,322. 
 
 78. Minutes of Halifax City Council — 
 
 Evidence ot — An action was brought against 
 the defendant for his share of the expense of 
 constructing a sewer on South Park Street, and 
 a book was tendered in evidence as the minute 
 book of the City Council, containing the resolu- 
 tion authorizing the construction of the sewer, 
 but was rejected. The City Clerk explained as 
 to this book, that notes were taken of proceed- 
 ings of the Council by himself when present, and 
 in his absence by his assistant, and were after- 
 wards transcribed more fully into the minute 
 
 book from the pencil notes taken in the (irat 
 instance, and certitied by the mayor at the 
 following meeting of Council. 
 
 ffeld, that as the resolution in question was 
 a public official act of the City Council registciccl 
 in the txxtk kept for tlie purpose, entered by the 
 proper officer and authenticated by the signature 
 of the mayfir, the book should have been receivcil 
 in evidence. 
 
 City of Halifax v. Komam, 1 R. ft G., 26.5, 
 
 79. Mortgage -Evidence of parol release 
 
 — Plaintiff, as administratrix, sought to fuio- 
 close a mortgage for I'iiOO made by defendant, 
 who, in his answer, set out a series of transac- 
 tions with the deceased in regard to the mortgage, 
 and further alleged that deceased mortgagee liad 
 delivered to him a memorandum, signed ))y iiini, 
 as follows: — "The mortgage which I hold of 
 W. J. W., bearim^ dale, (&c.), for l''20(), is not 
 payable to my heirs, executors or administrators 
 after my death. — I. W. W." The niemoranilum 
 was not produced, but on proof of loss, secondary 
 evidence was given, which the Judge considered 
 of a suspicious character. 
 
 Held, that the memorandum, even if there 
 were no suspicious circumstances about it, would 
 not operate as a release of the mortgage, eitlicr 
 at law or in equity, and that plaintiff was entitled 
 to a decree. 
 
 Woodworth v. Woodworth, R. E. D,,.337. 
 
 80. Note Indorsed by parties as president 
 and secretary of an incorporated company- 
 Company not incorporated at time of indorse- 
 ment—Evidence of subsequent incorporation 
 not admissible — In an action brought by miloi- 
 sees on a promissory note; si^'ned by defendauta 
 as presi<lent and secretary of a company, tiie 
 Judge of the County Court found that at the 
 date of the note the company was not incoi'pora- 
 ted, and rejected evidence'oflfered by plaintiff to 
 show that at the time of negotiating tlie note 
 the company was incorporated. 
 
 The judgment for plaintiff was appealed from 
 and the appt^al dismissed. 
 Jardine et al. v. Rowley et al., 3 R. & G., 244, 
 
 81. Notice— Proof of -Improper reception 
 
 of evidence— The plaintiff company in order to 
 prove a certain notice, called their secretary, 
 who testified to the loss of the original, and to 
 a sufficient search having been made for it. On 
 cross-examination he stated that he did not know 
 from whom he had received the original, nor in 
 whose hand-writing it was. The paper was ten- 
 dered, objected to and rejected, and the Judge 
 also refused to permit the plaintiff then to intro- 
 duce further evidence to prove it. The plaintife 
 
54o 
 
 EVIDENCE. 
 
 546 
 
 alHo ()irere<l ftiiswera to intcrrogatoriua by one of 
 till iK'fcndivntH, which were on file ; ami the 
 ftiiHVi r of luiotlicrof the ilvfundants, whiuti had 
 iKit lic'uii (ik'd, but wliiuli wuH adinittud. Thcsu 
 wtTu rejucted. The phiintitrii thorcupun becuinu 
 
 lIOII'Mllit. 
 
 Hi hi, WilkiiiH, J,, ilixxintiiiii, that the dis- 
 trttiim of tlie Judge, uh to the further exaiiiinu- 
 tion of the witiiosa had not l)eon properly exer- 
 ciai'il, tiiat the unawcra of tlie two defundanta 
 hIiiiuM Imve been received and that the non-auit 
 RhouUl be act aaide. 
 
 iVindsor Marine. Inn. Co, v. Laild, 
 2N. S. U.,493. 
 
 82. Objection, when too late -Where the 
 
 plaiiitiil'ahewa title in iiiniHelf, and atatea that 
 he li:iH a good title, it will l)c too late after the 
 jiliiiiitill's case iiaa .'losed to o))ject to the title 
 na not having been au/Uciently proved. 
 
 Lynch v. Hhuj, 2 Thorn., 418, 
 
 83. Parol evidence as to what submitted 
 
 to and conaidered by arbitrators inadmiBsible 
 -Sh AKBITRATIOX AND AWARD, 17. 
 
 81. Parol evidence to prove fraud where 
 
 contract partly in writing— 
 
 See CONTRACT, 33. 
 
 85. Parol evidence to show position and 
 
 Burveya of lands in grants— /'er Sir William 
 Young, C. J.— Under the usage of the Court, 
 parol evidence is admissible to show the actual 
 position and surveys of lands included in grants 
 of wilderness and wood lands. 
 
 Davinon v. Benjamin, 3 N. S. D., 474. 
 
 86. Party served same name as party 
 
 liable — Where the defendant nerved with pro- 
 cess bears the same name with the party obtiiin- 
 ing tiie goods, &c., it is prima facie evidence 
 that he was the party chargeable. 
 
 Thayer v. Vance, 2 Thorn., 269. 
 
 87. Perpetuating testimony— Evidence to 
 
 support bill for— Plaintiffs alleged in their bill 
 that one of the defendants accepted and execu- 
 ted a lease for fourteen years, determinable on 
 six months' notice, that notice was given, but 
 the period had not expired ; that said defendant 
 intended to contest the right of the plaintiffs, 
 and set up a title in th« other defendant to de- 
 feat the plaintiffs ; that while this litigation 
 was threatened no action could at present be 
 brought, and that the evidence of a certain wit- 
 ness would be necessary, and material to enable 
 them to establish this claim ; that he was aged 
 18 
 
 and about to leave the Province, and though 
 they could obtain his evidence now, they might 
 not bo able to do so at the time of an action 
 hereafter brought. 
 
 //(/'/, that sutticicnt had been set out to sus- 
 tain plaintiffs' bill to perpetuate teatimony, and 
 thit bill waa not demurrable. 
 Steel Co, Canada {Limited) v. Vance ft at,, 
 
 K. K. 1)., 428. 
 
 88. Plalntlir should go Into the whole ot 
 
 his case in the first instance— It ia not compe- 
 tent for plaintiff to rely upi>n n jirimafnrii' caao 
 in the tirat iiiHtanoe and then su])p<>rt it by fur- 
 ther evidence in reply. It ia in the discretion 
 of the Judge whether he will allow the plaintiff 
 to give evidence in reply, but such discretion 
 may be reversed by the Court. 
 
 .V«a>7/ V. Foirkr et al., 1 N. S. 1)., 495. 
 
 89. Plans-Admlsslbility of— The defen- 
 
 i dants tendered two plans in evidence which 
 
 came from the Crown Land Oflice, which the 
 
 witness who produced tiiem stated ha<l been 
 
 i there for at least thirty years, but neither their 
 
 1 origin nor history was given ; nor was it shown 
 
 I that they had been regarded in that otiice as 
 
 authentic. 
 
 Held, that the Judge did right in rejecting 
 
 them, 
 I Walker et al. v. Bayer.-,, 3 N. S. D., 270. 
 
 I 
 
 00. Plan rejected for want of evidence 
 
 I to connect it — iJefendant sought to set aside a 
 verdict for plaintiffs in an action of trespass for 
 cutting and removing the plaintiffs' wharf, on 
 the ground that a plan offered by defendant, 
 which was admitted to have come from the 
 Crown Land otiice and was signed by the Sur- 
 veyor-General, but was proved in no other way 
 had been rejected. There was no evidence be- 
 fore the Court, and, assuming that the plan 
 could be received for that purpose, there waa 
 none on the face of the plan to connect it with 
 the title of any of the parties to the suit. 
 
 Held, that the plan was properly rejected. 
 
 Esxon et al. v. Wood, 4 R. & G., 276. 
 
 Reversed on appeal to the Supreme Court of 
 Canada. 
 
 9S. C. R.,239; 4 C. L. T., 116. 
 
 91. Flan annexed to deed— How treated— 
 
 See DEED, 44. 
 
 92. Plea of right of way— Evidence of 
 
 way of necessity — Under a plea of right of way, 
 where evidence was received of way of necessity, 
 it is too late to object, after the trial, that such 
 evidence was not receivable. 
 
 Teed v. Beebe, 2 Thorn., 426. 
 
647 
 
 EVIDENCE. 
 
 548 
 
 M. Police offlcer — Juitlflcatlon — Plead- 
 ing- Under Doin. Htat». 32 and 'Mi Vic, c. 'JO, 
 B. \',i'2, thu iloftndant being a Huliouliiiate policu 
 otUuer, may give ovidunue tu ahow a jiiatiticiition 
 under the commiind of a gupcrior officer, with- 
 out pleading auuh justitication iipeuiully. 
 
 Peppy V. GroHO, 1 R.& C, 31. 
 
 94. PoRsesHlon — Evidence for Jury — 
 
 Wiero the plaintifT relied upon ii documentary 
 title and failed in tracing it to the Crown, and 
 gave doubtful evidence only as to the pobsession 
 of one of the prior owners, 
 
 //eld, that this evidence ought to have been 
 left t(» the jury. 
 
 Shey et al. v. Chiiiholm, James, S2. 
 
 95. Possession — Evidence of, in eject- 
 ment — When evidence wos given that the ances- 
 tor of the lessors of the plaintiff had cut wood 
 off a lot of land of which he subsequently ob- 
 tained a deed, held, that it was not sutiicient to 
 support an action of ejectment. 
 
 McDonald et al. v. Chhholm, 2 Thorn., 404. 
 
 iS'ee, alao, EJECTMENT. 
 
 96. Possession -Evidence of, in trespass— 
 
 See TRESPASS. 
 
 97. Power of Court to review evidence 
 
 on appeal — 
 
 See APPEAL, V, 29-40. 
 
 98. Probate- Evidence of settlement of 
 
 estate — The real estate of the intestate was 
 partitioned by commissioners appointed under 
 the Probate Act, who, by their report, left a 
 certain portion of the land undivided. This par- 
 tition was confirmed by order of the Court, the 
 estate having been previously settled Yy decree 
 of the Judge of Probate, which was in ')vidence. 
 Afterwards, W. Hawkins, husband of one of the 
 heirs of intestate, petitioned the Judge of Probate 
 for a partition of the undivided portion ; and a 
 large body of evidence of possession was put in 
 on bo'h sides, the whole of which this Court held 
 to be futile and unnecessary, as there was no 
 ground for sustaining any possession in either 
 party that could influence the decision. The 
 Judge of Probate dismissed the petition on the 
 ground that he had no power to settle disputed 
 questions of title. On appeal to the Judge in 
 Equity this decision was over-ruled, and the 
 Judge of Probate directed to proceed with the 
 cauE*!, which he did, and dismissed the petition 
 on the merits, dividing the costs between the 
 litigants. Both parties having appealed, 
 
 Held, that the final decree above referred to 
 
 was evidence with the other evidence bcforu tho 
 Court of the final settlement of the estate liy the 
 Judge of Probate. 
 
 In re Entate of John Simpnon, 3 R. & C, 3.^)7, 
 
 99. Promissory note delivered up as paid 
 
 by mistake- Evidence of mistake- In an lul- 
 justmcnt of accounts between plaintiff and defen- 
 dants a promissory note made by defeiuliinlH in 
 favor of plaintiff waa deliverod up to tlitni with 
 a receipt in full indorsed upon it and signed liy 
 plaintiff. Immediately after the adjuHtnient the 
 plaintiff discovered that a mistake had l)cen irmde 
 in tho settlement and at once applicil to have it 
 rectified. This was refused, and he llien brought 
 action on the note. On tho trial the defeniluiitH 
 produced the note under notice to produce, und 
 tho plaintiff having testified that he had put 
 the indorsement on under a mistake, teiulercd 
 evidence of tho mistake itself. The Judje re- 
 jected tho evidence and also evidence of whic 
 one of the defendants had said when informed 
 of the mistake, and charged the jury that plain- 
 tiff's only remedy, if any, was in Equity. 
 
 Held, Wilkins, J., ditsenting, that the evi- 
 dence should have been received and that plaintiff 
 could maintain an action at law upon the note 
 as well as proceedings in equity to rectify the 
 mistake. 
 
 AtUnaon v. Gould et al., 2 N. S. D., 482. 
 
 100. Promissory notes— Evidence alTect* 
 ing- 
 
 See BILLS OF EXCHANGE AND PKOMI880BT 
 NOTES, IV. 
 
 101. Proof of scienter In action against 
 owner for injuries done by animals— 
 
 See ANIMALti, 1 and 2. 
 
 102. Record -Filing of-Laches-PlalntllT 
 
 proposed on the trial to give in evidence a copy 
 of a record alleged to have been filed March 13th, 
 1878, to meet a plea of nul tiel record. The Pro- 
 thonotary of the Court, called by plaintiflF, t^ated 
 that no record of that date was to be found, and 
 on cross-examination said the first record he had 
 seen was filed August 18th, 187«, and that this 
 was the first record that had been sent to him 
 by the attorney whose duty it was to prepare it. 
 Held, that the Judge had properly rejected 
 the evidence, and that he was justified in refus- 
 ing to allow a record to be filed nunc pro tv.nt. 
 Hardy v. Smth, 1 R. & G., 351. 
 
 108. Record roll- Delay In llling- Where 
 
 the defendant offered in evidence a record roll, 
 in a previous action between the same parties, 
 
64!) 
 
 EVIDENCE. 
 
 550 
 
 wliich had been handed to the Prothonotary in 
 Court, and marked filed, only half an hour be- 
 fore it witR BO ton<lered in evidoncn, 
 Udd, that theiJud({u wan right in rejecting it. 
 Murdoik V. Orant, 2 Thorn., 100. 
 
 104. Record — Verdlet — Evidence of- 
 
 Plnintiff brought an action for uho and occupa- 
 tion, which wuH afturwardH amended by adding 
 a count for mesne proHta. DcfendantH pleaded 
 disputing plaintifT'H title and poHtieHHion, and 
 plaintitt', besides joining iMsuo, replied itetting out 
 tilt- fiict of un ejectment Huit against one J)avii, 
 tiic order of u Judge permitting defendanta to 
 appear us landlords and ilefend said ejectment 
 suit, the proceedings in said suit on the (itli May, 
 7'), before McDonald, J., when eami the said 
 William .Tost and the said Church Wardens and 
 Vestry and a jury, who found, etc. 
 
 On tiie trial, tht verdict in an ejectment suit 
 wnB tendered and received without objection. 
 It was signed by the foreman and Prothonotary, 
 and purported to bo between Jost, as plaintiff, 
 and Davis as defendant, and did not mention 
 the preHcnt defendants at all. A record signed 
 by the attorney and not authenticated by an 
 officer of the Court, was then tendered, which 
 recited an ejectment suit between Jost and 
 Davis, the order of a Judge allowing the present 
 defendants to appear and defend, in their own 
 name, tiie proceeding on April 27tli, '75, when, 
 before .Sir W. Young, C. J., and his associate 
 Justices, came the parties within mentioned 
 (being the plaintiff, Davis, and the Church VV'or- 
 dens), "and a jury, sworn," etc. The record 
 was rejected and the plaintiff non-suite.d. 
 
 Hdd, that the record should have been re- 
 ceived. 
 
 Weatherbe, J., dissenting. 
 JoHtv. Church Wardens amd Festry of St. George's, 
 
 1 R. &G.,451. 
 
 105. Recovery— Evidence of- The record 
 
 roll filed by the attorney in a cause on entering 
 judgment is the only evidence of a recovery. 
 Chesley, Adm'r, v. Bmmett, 1 R, & C, 112. 
 
 106. Residence of narty— Evidence of- 
 
 Plaintiff, as assignee under the Insolvent Act of 
 1869, brought action to recover $700 paid within 
 thirty days of the assignment by one Hamilton 
 to defendants, on a judgment entered up at the 
 suit of defendants, shortly before the assignment, 
 but not recorded, because, as one of the defen- 
 dants said, it would injure Hamilton's credit. 
 The jury found, in answer to questions put to 
 them, that the payment had been made within 
 the thirty days, that Hamilton was then unable 
 to meet his engagements in full, and that defen- 
 
 dant* had probable reason for iNilioving him to 
 bo so unable, and they found for plaintiff without 
 specifying any sum. Objections having been 
 taken to tho verdict by rule nisi, 
 
 field, that tho distinction of Hamilton in the 
 original writ in evidence as "of Bedford in the 
 County of Halifax," was evidence of Hamilton's 
 residence being outside of tho city, and that 
 judgment should bu entered for plaintiff for 
 iil!7<X) and costs. 
 
 Cochran v. Chlpmnn it al., 2 R. & C, 284. 
 
 107. Reviewing decision of County Court 
 
 on matter of evidence — 
 
 See APPIAl, V. 
 
 108. Sealing of Instrument-Pleading— 
 
 The bond contained the usual attestatKm clause 
 as to signature and sealing, and defendant had 
 acknowledged several times that ho had execu- 
 ted a bond to J. H., but plaintiff's son said he 
 did not think the original which ho saw was 
 sealed. The copy from tho Registry contained 
 no indications of seal, and tho defendant (whose 
 evidence on some essential points was inconsist- 
 ent with that of plaintiff's witnesses and the 
 proven facts of the case), denied that he had 
 ever delivered a sealed bond to J. H. 
 
 The question as to the sealing was left to the 
 jury, who found " that tho document in evidence 
 was identical in purport with that signed by 
 defendant, which he denied," and they found a 
 verdict for the plaintiff. 
 
 Held, that the question was properly left to 
 the jury, and that the verdict should not be dis- 
 turbed. 
 
 The sealing and delivery of a bond are put in 
 issue by a plea that the defendant did not 
 make and deliver any such bond aa that de- 
 clared on. 
 
 Hazell V. Dyas, 2 R. & C, 36. 
 
 109. Secondary evidence of letter to agent 
 
 of defendant, which had been shown to plain- 
 tifif, as evidence of contract — Plaintiff was em- 
 ployed by the manager of the defendant company, 
 in August, 1874, as an engineer, and on the 2l8t 
 of September, 1874, the manager wrote him that 
 his services would not be required after the 26th 
 of September, to which date his account was 
 made up and paid. On October 6th, 1874, the 
 secretary in London wrote to the manager in 
 Londonderry, instructing him to cancel the notice 
 to leave above mentioned, and stating that it had 
 been agreed that the plaintiff should receive pay 
 from the date of his predecessor's departure at 
 five dollars a day, " the term of his permanent 
 service to be fixed by the board when the salaries 
 of other ofiScers were discussed." This letter 
 was shown to the plaintiff by a clerk of the com- 
 
551 
 
 EVIDENCE. 
 
 552 
 
 pany, who gave plaintiff a copy which was 
 compared witli the original in the presence of 
 the manager. 
 
 Held, that the secondary evidence of this let- 
 ter, on non-production of the original, was pro- 
 perly admitted by the Judge, and that with a 
 letter of similar tenor, bearing the same date, 
 and addresse<l to the persons conducting the 
 company's establishment at Londonderry, it war- 
 ranted the verdict found for the plaintiff on the 
 basis of a permanent engagement. 
 
 Oray v. Tht Sled Co. of Canada, 
 1 R. & G., 434. 
 
 110. Secondary evidence of lost deed- 
 Where a deed has been traced into the actual 
 possession of a party, it is necessary to call him 
 to account for it before secondary evidence can | 
 be let in ; l)ut where doidjt exibts as to whetlier 
 it was actually left witii a party who has no 1 
 interest in it, held sufficient to prove a search j 
 amongst the papers of tiie person who it was \ 
 presumed last had possession of it. j 
 
 liarto V. Mon-is, Cochrau, 90. j 
 
 111. Secondary evidence of record —In 
 
 an actior. to revive a judgment secondary evid- 
 ence of the record was admitted on proof of loss 
 and of the entries in the hand of the late Pro- 
 thonotory in the judgment book indicating that 
 the roll had been filed and execution issued. 
 
 Graham v. Boak, 3 R. & G., 286. 
 
 112. Secondary evidence when not ob- 
 jected to— Presumption as to notices to pro- 
 duce, &c. — Where an objection to secondary 
 evidence of a deed is eithe-.- not taken or is 
 waived at the trial, it ca-mot be taken after- 
 wards ; and in such case the regularity of 
 notices to produce and matters of the like kind 
 is always presumed. 
 
 Smith et al. v. Smith et al, 2 Old., 303. 
 
 113. Shipping — Ownership of vessel — 
 
 Presumptive evidence of— Where the managing 
 owner and the master of a ship order necessaries 
 for the navigation of the ship on credit, the 
 owners are liable. The certificate of registry is 
 presumptive evidence of the ownership. (See 
 4th R. S., chap. 96, sec. 31.) 
 
 Smith V. Fulton et al., 2 R. & C, 225. 
 
 114. Slander— Evidence of rumors, not 
 
 known to defendant, inadmissible to show 
 aense in which words used — Defendant used, 
 in reference to the plaintiff, the words " stud," 
 and " mare-rider," for which plaintiff brought 
 an action of slander, with an mnuendo attrib- 
 
 uting to the words the meaning that plaintiff had 
 
 committed the crime of buggery. The Court 
 
 set aside the first verdict on the ground tiiat 
 
 the words were not actionable j/cr xe. Ou the 
 
 second trial the only evidence adduced by way 
 
 of foundation for the question as to the sense in 
 
 which the words were understood was tiiat of 
 
 rumors in the neighborhood that the plaintiff 
 
 had committed such crime, but it was not shown 
 
 that these rumors were known to the defendant. 
 
 He/d, that the evidence had been improperly 
 
 admitted, and that the verdict for plaintiff must 
 
 be set aside. 
 
 Grant v. iStm^won, 3 R. & C, 141, 
 
 113. Special Case -Power of Court to add 
 
 to— 
 
 On appeal to the Supreme Court of Canada, 
 
 In lioak el al. v. The Merchants' Marine In- 
 /mrnnce Company, 1 R. & C, 288, 
 
 Held, that when a case has, by consent of 
 parties, been turned into a special case, and the 
 Judge's minutes of the evidence taken at the 
 trial agreed to be considered as part of the said 
 special case, the Court has no power to add 
 thereto, except wit'' the like consent, and has 
 no power to order any ti.rther evidence to be 
 taken. 
 
 Jioak et al. v. The Merchants' Marine Im. Co., 
 
 1 S. C. R., 110. 
 
 116. Telegram-Proof of -Principle upon 
 
 which secondary evidence of, admitted— In an 
 action claiming damages for wrongfully procur- 
 ing the plaintiff's son to leave his service and 
 refusing to allow him to return, secondary evi- 
 dence was offered and rejected of a telegram sent 
 by plaintiff to defendant demanding the son's 
 return. 
 
 Held, on appeal that the evidence should have 
 been received. 
 
 A new trial was ordered. 
 
 The same principle that admits proof that 
 letters were deposited in the post office duly 
 addressed, as tending to show that they were 
 received by the persons to whom they are ad- 
 dressed, applies to telegrams.. 
 White V. Flemming, 20 N. S. R., (8 R. & G.), 335 
 
 See, also, DEFAMATION, 12. 
 
 m. Transfer of personal property - 
 
 "What necessary for defendant to prove before 
 he can dispute bona fides— A defendant dis- 
 puting the bona fides of a transfer of personal 
 property to plaintiff, must prove himself to be a 
 judgment creditor or an officer acting under 
 legal process. 
 
 McGUvray v. Gibbons, James, 15'- 
 
 
553 
 
 EVIDENCE. 
 
 554 
 
 118. Trust— Parrtl evidence of— Plaintiff 
 
 in his bill or writ, set out that John Blair 
 granted certain lands to defendant by deed, 
 whicii though absolute in its terms, was given 
 to secure ^600 advanced by defendant to cred- 
 itors of said grantor, and that defendant, at 
 the execution of the deed, promised to reconvey 
 to the grantor on payment witnin three years of 
 the amount due ; that the estate of the grantor 
 had hecome vested in plaintiff who had tender- 
 ed tlie ^600 and offered to pay any balance 
 found to be due defendant, who refused to 
 accept the money or execute a deed. Defend- 
 ant's answer set up a parol trust to pay in full a 
 debt duo by the grantor to defendant and apply 
 the surplus ratably among five other creditors ; 
 that tiie amount thus due was more than the 
 $6(10 tendered, and defendant offered to reconvey 
 the land on payment of the debts as security for 
 which it was given. A memorandum signed by 
 the grantor was delivered to the defendant at 
 the time of the conveyance, witnessing that 
 "the sums attached to the following names" 
 (the five creditors referred to by the defendant 
 in his answer) "are included as the considera- 
 tion money of .John Bluir to Robert Chambers." 
 The creditors referred to were at the time pres- 
 sing lilair for payment, and gave him time in 
 consideration of this conveyance. The claims 
 of several of them were bought at a reduced 
 rate by Blair's son-in-law in Blair's interest. 
 
 Hdd, thct there was a consideration moving 
 from the several creditors named in the memor- 
 andum to Blair, and a resulting trust in favor of 
 all the said creditors ; that parol evidence of 
 this trust could be given consistently with the 
 Statute of Frauds ; and that defendant held the 
 land in trust for the payment of his own debt 
 and the debts of the other creditors at their full 
 amount, notwithstanding the purchase of the 
 same for a reduced sum, which was held to be a 
 matter solely between those creditors and their 
 assignee. 
 
 Page V. Chamherx, 1 R. & G., 2,32. 
 
 119. Usage— Evidence of a usage con- 
 trary to a settled principle of law is not admis- 
 sible. 
 
 Hardy et al, v. Fairbanks et al., James, 432. 
 
 120. Water-course— Action for obstruct- 
 ing—Evidence to support — In an action for 
 obstructing a water-course, and thereby prevent- 
 ing the working of a mill, to entitle plaintiff to 
 recover, he must clearly show that the whole 
 obstruction is the act of defendant. If therefore 
 a wall be built by defendant narrowing the water- 
 course, and subsequently a freshet takes place, 
 
 which shallows the water-course, no action will 
 lie against defendant. 
 
 Foxier V. Fowler, 2Thom., 425. 
 
 121. Weight of Evidence— Plaintiff bad to 
 
 prove title. His place of beginning was Identi- 
 fied, and his description in the grant then read : 
 " running south 52 chains to a large pine tree 
 marked 'J. G.,' and thence west, &c." To 
 reach the locwi the line should be extended about 
 50 chains more. To that increased distance the 
 surveyor's line on the ground extended, but there 
 was no pine tree so marked either at the diitance 
 expressed in the description or at the end of the 
 surveyor's line. At the latter point, however, a 
 xpruce tree was marked " H. G." and " J. G." 
 The plan attached to the grant represented the 
 lot as a different shape from that claimed, and 
 the area expressed in the grant was inconsistent 
 with plaintifTa contention. 
 
 Held, per McDonald, C. J., and Weatherbe 
 .and Thompson, JJ., that the plaintiff had given 
 no evidence of title to the loam, and per Rigby, 
 J., that the preponderance of evidence was 
 against plaintifTs contention. 
 
 Verdict for plaintiff therefore set aside. 
 
 Gates v. Davidson et al., 5 R. & G., 431. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, that there was evidence for the jury 
 that the line claimed by the plaintiff was the 
 western line of his grant. The case, however, 
 was not so clear as to justify the Court in rever- 
 sing the decision of the Court below, come to on 
 a review of the evidence ; but was a proper case 
 for further consideration on a new trial, Henry 
 J. , dissentinfj, appeal dismissed with costs. 
 Oates v. Davidson, l£th May, 1SS5, 
 
 Cas. Digest, 516. 
 
 122. Weigbt of evidence -Reflisal to re- 
 view — Decision on — Rule to set aside a verdict 
 for defendant in an action tried before a Judge 
 without a jury, discharged with costs, where 
 there was a conflict of testimony on the main 
 question on which plaintiff's right to recover 
 depended, and no clear preponderance of evi- 
 dence for the plaintiff. 
 
 Boxcen v. Troop e< o^., 1 R. & G., 137. 
 
 123. Proof of by certifled copy— Attesta- 
 tion — A will is sufficiently proved by the produc- 
 tion of a certified copy, when the notice required 
 by 3rd R. S., c. 1.35, s. 36, has been given. 
 
 It is also sufficiently attested where the tes- 
 tator could see the witnesses sign, had he chosen 
 to do so, though there was no proof that he 
 actually did see them sign, and they were in an 
 adjoining room at the time. 
 
 Carrigan v. Carrigan, 2 Old., 8. 
 
555 
 
 EXECUTION. 
 
 556 
 
 124. Witness, when incompetent -A party ' 
 
 directly intcrestoil in a defence, who has indem- 
 nified the defendant on the record and who Htates 
 that the suit is defended on his individual behalf, 
 is incompetent as a witness under Lord Denman's 
 
 Act. 
 
 Johnntone v. Brenan, James, 14. 
 
 125. Agreement-Prior verbal agreement 
 
 — Evidence of, when admissible— Good will of i 
 business — When a party enters into a written ! 
 agreement, under seal, for the sale for a certain 
 amount of all his right, title, share and interest 1 
 in a certain business, evidence is inadmissible to ■ 
 prove a prior verbal agreement for the sale of ! 
 the " good will " of the business for a sum in ad- j 
 dition to the amount so specified in the written : 
 agreement. 
 
 Lind/fy v. Lacey, 1 1 Law Times Rep. , N. S. , 
 273, distinguished. 
 
 Anitin V. Boone, 2 Old., 149. 
 
 EIECVTION. 
 
 1. Appeal to Supreme Coun of Canada- 
 Stay of execution on— Where judgment is for 
 defendant, and plaintiff, appealing to the Su- 
 preme Court of Canada, wishes to stay exccu- | 
 tion for defendant's costs, he must give security 
 for §750 or §2r>0, in addition to the §500 pre- 
 scribed by " the Supreme and Exchequer Courts 
 Act." j 
 
 Kinney, Assignee, v. Dudman, 2 R. & C, 376. j 
 
 2. Attachment— Execution taken out on, > 
 
 without bond approved, set aside — Wliere an 
 execution is taken out on an attachment against 
 an absent or absconding debtor, without the 
 bond for such execution having been allowed by j 
 the Court or a Judge, the Court will set it aside 
 but without costs, though the bond l)e actually 
 made and filed before the issue of the execution, 
 and the sureties unexceptionable. 
 
 Allan V. Caswell, 1 Old., 405. 
 
 3. Binds fl-om what date-2nd B. S., c. 
 
 134, s. 127 — All execution binds the goods of a 
 defendant, as against himself or his personal 
 representatives, from the date of its issue, and 
 can be levied on them notwithstanding his 
 death. 
 
 Young, C. J. , dissenting. 
 
 Construction of section 127 of the Practice 
 
 Act. (Revised Statutes, 2nd series, chapter 134.) 
 
 Burrows v. Isener, 1 Old., 371. 
 
 But see 5th R. S., c. 104, O. xl., R. 32. 
 
 4. Bond conditioned to render defendant 
 
 to Sheriff of Halifax — Execution placed in 
 hands of Sheriff of Annapolis where was venue 
 of action — Held properly so — Amendment- 
 Indorsement of execution— The original plain- 
 tiff, who died after the commencement of the 
 suit, tlie suit being continued by his adminiiitra- 
 tors, issued at Annapolis a writ of capias against 
 one Cutler, returnable at Annapolis, directed to 
 the Sheriff of Queens or any other Sheriff, under 
 which Cutler was arrested by the Siieriff of 
 Halifax County, in his bailiwick, and held to bail, 
 defendant l)ecoming surety, and thecondi'ioii of 
 the bond being that Cutler sliould be rendered 
 into the custody of the Sheriff of Halifax. Tiie 
 declaration in the suit against Cutler was on a 
 bill of exchange drawn by Cutler and otliersaiul 
 dishonored, with pai'ticulars applicable to huoIi 
 a count, together with common counts laying 
 the indebtedness in Cutler and said others, hut 
 after issue joined common counts were aihlcd, 
 laying the indebtedness in Cutler only, and par- 
 ticidars accordingly. Judgment was recovered 
 against Cutler, and an execution issued directed 
 to the Siieriff of Annapolis in the usual form, 
 but without any indorsement especially directing 
 the Sheriff to take the body. No execution was 
 placed in the hands of the Sheriff of Halifax, 
 and tiie Sheriff of Annapolis, after holding tlie 
 execution sixty days, returned non est inmitut. 
 Held, that the execution had been properly 
 placed in the hands of the Sheriff of Annapolis 
 County, in whicli the venue in the original action 
 was laid, and not in Halifax, where the arrest 
 was made ; and that the objection as to the 
 amendment of the writ could not prevail, as 
 there was notliing before the Court to show the 
 nature of the debt sworn to in the affidavit on 
 which the capias issued, or that the plaintiff hud 
 not recovered on the declaration as originally 
 framed, but tliat in order to enable plaintiff to 
 bring action against the defendant as bail, a writ 
 should have been placed in the SherifTs liaiids 
 with instructions indorsed to take the body of 
 tlie principal. 
 
 Oamza v. Black; 3 R. & C, 129. 
 
 5. Execution against individual members 
 
 of corporation — Cumulative remedy not al- 
 lowed — Rule nisi for calling on individual mem- 
 bers of a corporation, against which an execution 
 had been issued for costs and returned not satis- 
 fied, to shew cause why execution should not 
 issue against them individually. The applica- 
 tion showed that the officers of the corporation 
 had been applied to for payment, but had refused, 
 although they had funds in their hands. 
 
 The rule was drawn, requiring them to si ew 
 cause why the execution should not issue against 
 
557 
 
 EXECUTION. 
 
 558 
 
 the individual members, and also, that proceed- 
 ings Ik! Stayed. 
 
 Pir Halliburton, C. J.— Take your rule for 
 the execution only, or else in the alternative. 
 You uunnot have a cumulative remedy. 
 
 Church Wardeiin, Avihemt, v. Davinon, 
 
 James, 106. 
 
 6. Execution against member of Club— 
 
 All iipplioation having been nuide for leave to 
 i.isuc an execution against an individual member 
 of tlie defendant Club, an execution against the 
 C'lul) iiaving been returned unsatisfied, 
 
 III III, tiiat section l.S of cliapter r)3, 4th R. S., 
 creatuil no liability on the part of members of a 
 corporation, but merely provided that tiiey 
 otiouhl not be relieved from any liability that 
 wouhl have attached to them as partners if unin- 
 corporated ; that the members of the defendant 
 t'hih would not, if unincorporated, have been 
 liiililo as partners, and the Statute was not inten- 
 ded to apply to such a corporation, and even if 
 this wore not tlie case, that tiie plaintiff could not 
 hohi an individual member liable, without prov- 
 ing that he was a member at the time of the 
 return of tlie execution issued against the Club. 
 
 Riilt nin for leave to issue execution dis- 
 charged, but without costs. 
 
 Scott V. Royal Halifax Yacht Club, 
 
 1 R. & G., 322. 
 
 1. Execution irregularly issued and in- 
 
 effective — Not sufficient ground for setting 
 aside an eflFective execution subsequently 
 issued — Costs refused to successful party 
 where incurred in consequence of his default- 
 On the Kith October, 1881, plaintiff rrooverei' 
 judgment against defendant, and on the 3rd 
 October, 1885, issued an execution for the 
 amount, describing the judgment as of the 18th 
 July, 1885. Finding his mistake, he directed 
 the Slieriff to return the execution as not satis- 
 Ued, wliioii was done, but not until a levy had 
 been made on defendant's goods. Plaintiff then 
 issued a second execution, correctly, following 
 the judgment, and untler the second execution 
 the goods were sold. 
 
 Defendant applied to set aside the first and 
 second executions and all proceedings of the 
 Sheriff thereunder, and an application was made 
 on beiialf of plaintiff to revive and renew the 
 first execution. 
 
 Held, that the first execution being irregular, 
 and not such an execution as when returned 
 satisfied, would be a bar to any future claim 
 for the amount of the judgment, and so protect 
 the defendant as well as serve the plaintiff, it 
 could not interfere with the issue of an effective 
 execution, or justify the setting aside of the 
 
 execution last issued, which answered the pur- 
 pose of both parties. 
 
 Costs were refused to plaintiff, though suc- 
 cessful in resisting the main application, as it 
 was through his default in irregularly issuing 
 the first execution that the difficulty arose. 
 McDouijall et al. v. Griffin, 7 R. & (••, 254 j 
 
 7 C. L. T., 347. 
 
 8. Execution, irregular— Justification of 
 
 constable — An execution was issued by two 
 Magistrates on a judgment after the amount 
 sued for had been paid to the judgment creditor, 
 and subsequent to the death of the creditor. 
 
 Held, that iiotwitiistanding these facts, the 
 constables to whom the execution was directed, 
 were justified in levying and selling thereunder. 
 A mere notice from any body of an alleged 
 defect in an execution is not sufficient to arrest 
 u sale by the constable. 
 
 McPhail v. McKinnon et al., 1 N. S. D., 168. 
 
 9. Execution within six years -EflTect of— 
 
 Appointment of Bailiff discharges Sheriff — 
 Where a first execution is sued out within six 
 years of judgment, it is not necessary to issue 
 the next execution within six years from tlie 
 issuing of the one last previously issued. 
 
 The appointment of a special I>eputy or Bailiff 
 by a party to a suit discharges the Sheriff from 
 all responsibility. 
 
 Cochran v. Bell, 3 N. S. D., 488. 
 
 10. Execution without positlTe instruc< 
 
 tions to levy — Attachment. — An execution had 
 been in the Sheriff's hands a little before an 
 attachment, but he did not receive positive dir- 
 ections to levy immediately under the execution, 
 but under the attachment he did. 
 
 Held, that this execution did not bind perso- 
 nal property against the attachment. 
 
 Mitchell V. Raymur, 3 Murd. Epit., 235. 
 
 11. Grass growing cannot be seized under 
 
 execution — (Jrass still growing and not yet cut 
 does not come under the description of goods 
 and chattels and cannot be seized and sold under 
 execution. 
 
 Late V. McLean etal.,2 N. S. D., 69. 
 
 12. Indigent Debtors' Act - Fraud In re< 
 
 spect of delay of payment and the disposition 
 of property — Execution continues in force 
 until payment of the debt or the discharge of 
 the debtor under the Act, or a valid order 
 for imprisonment for fraud — Application was 
 made to the Judge of the County Court for the 
 discharge of an insolvent debtor under chapter 
 118 of Revised Statutes (5th series.) The appli- 
 
659 
 
 EXECUTION. 
 
 3G0 
 
 cation was refused on the ground that the 
 debtor had been guilty of fraud in respect of 
 delay of payment and the disposal of his pro- 
 perty, and the learned Judge made an order 
 directing that he bo confined in jail for a period 
 of six months. This order was made on Satur- 
 day the '23rd day of January, 1886, but was 
 inadvertently dated as of the 24th (Sunday.) 
 The mistake being discovered the learned Judge 
 on Monday the 'Joth made a further order con- 
 firming the firbt order and directing that the 
 debtor be confined in jail for a period of six 
 monthi) from the 23rd of January for such fraud. 
 
 Application was thereupon made to the Court 
 for the discharge of the debtor under a writ of 
 habeas rorpiiii on the ground that he was illegally 
 detained, the imprisonment under the execution 
 having detcrniineil when tiie orders were made 
 by the County Court Judge in respect to the 
 imprisonment for fraud and such orders being 
 bad. 
 
 II(hl, that the prisoner was not entitled to 
 the relief sought, the execution under which he 
 was imprisoned continuing in force until he was 
 released by the creditor, or until the making of 
 a valid order for his discharge under the Act, or 
 for his further imprisonment for fraud. 
 
 //eld, aliio, thot the writ of halHOS corpitu 
 should have been directed to the Sheriff and not 
 to tile jailor. 
 
 Weatherbe, J., (lisMeiitiiii/. 
 
 lie G. Ji. Johnston, 7 R. & 0., 51 ; 
 7C. L. T.,90. 
 
 Affirmed on appeal to the Supreme Court of 
 Canada, but without costs. 
 
 Cas. Digest, 386 & 540. 
 
 13. Indorsement or writ of— 
 
 Semhle, it is not necessary that there should 
 be an indorsement on the writ of execution of 
 the mode in which it is to be executed. 
 
 Sutherland v. IFAifWcH, 2 Thorn., 410. 
 
 14. Insolvency— Suit commenced before 
 
 assignment — Plea inm darrein continuance — 
 Execution — Plaintiff recovered judgment against 
 defendant after plea pui» darrein continuance of 
 composition and discharge under the Insolvent 
 Act of 1869, the suit having been commenced 
 before the assignment of defendant under the 
 Act. The discharge was confirmed after plea 
 and before trial, but does not appear to have 
 been brought to the notice of the Court in any 
 way at the trial. On motion to set aside execu- 
 tion on the judgment. 
 
 Held, that the defendant must have the ad- 
 vantage of the general provisions of the law in 
 his favor, which cancelled the original indebted- 
 
 ness, and that the execution and proceedings 
 thereunder must be set aside. 
 
 Wal/nce v. Bosxom, 2 R. & C, 419. 
 
 On appeal to the Supreme Court of Canada, 
 Held, Strong, J. (di-i.tentim/), that the rule or 
 order of the Court below was one from which an 
 appeal would lie. 
 
 2. Reversing the judgment below, that de- 
 fendant having neglected to plead his disL-liiirije 
 before judgment, as he might have done, was 
 estopped from setting it up afterwards to dofoiit 
 the execution. 
 
 n'al/ace v. Bossom, 2 S. C. R., 48S. 
 
 15. Insolvent debtor— Execution against, 
 
 after discharge— Fraudulently assigned goods 
 — The insertion of the usual (•«///«■< ad ■-atln- 
 facieiidum clause will not vitiate an execution 
 against a party who has been discharged from 
 custody as an insolvent debtor. 
 
 The language of the Insolvent Debtors' Ai;t of 
 1846, which permitted a plaintiff to take under 
 execution property subsequently acquired by tlie 
 insolvent, held not to restrain a plaintiff from 
 taking under execution goods fraudulently its- 
 signed by the insolvent previous to his discluirge 
 
 under the Act. 
 
 Falconer v. Sawyer, James, 277. 
 
 16. Judgment— Interest on— Instructions 
 
 to Sheriff — Xo claim for interest ari.ses ui)on 
 tt recorded judgment until lands are actually sold 
 under execution and there is a surplus after jmy- 
 ing the debt and costs. 
 
 In instructing a Sheriff to levy an execution it 
 is irregidar to direct him to levy for interest on 
 the amount of judgment. 
 
 Fleiijer v. Taylor, James, 1.'17. 
 
 17. Judgment more than twenty years 
 
 old — To entitle a party to issue an execution on 
 a judgment more than 20 years old, there nnist 
 have been an execution regularly issued and re- 
 turned within a year after judgment. 
 
 White V. /)imor/l-, 2Thom., 2.U 
 See 5th R. S., c. 104, 0. xl., R. 23. 
 
 18. Judgment recorded in lifetime of 
 
 deceased— Estate declared insolvent in Pro- 
 bate Court — Execution may issue and be 
 extended on land bound by it — Balance due 
 on may be claimed out of personal assets— 3rd 
 R. S., c. 127, s. 70— Cf. 5th R S„ c. 100, s. 72- 
 Where a judgment has been duly recorded in 
 the life time of a deceased party, and his estate 
 has been declared insolvent by the Probate 
 Court, an execution may, nevertheless, be issued 
 on such judgment, on a proper suggestion of the 
 
661 
 
 EXECUTION. 
 
 562 
 
 facts on the record, uga'nst his executor or 
 administrator, but can be extended only on the 
 land liound by such ju<lgnient. 
 
 If any l)alance remain due to such judgment 
 creditor, after a sale of the iand under sucli 
 execution, he is entitled to claim therefor out 
 of the personal assets of the deceased, under the 
 pn)''isions of section 70 of the Probate Act, 
 (3rd Rev. Statutes, c. 127). 
 
 Bnrrotves v. Imior, 1 Old,, (38(J. 
 
 19. Landlord's Hen for rent-Meaning of 
 
 "Execution " in 4th R. S., c. 107, s. 7— Cf. 5tli 
 R. S., c. 125, 8. 14— Does not include attach- 
 ment—Section 7 of chap. 107 Revised Statutes 
 (4th scries), providing that no goods shall be 
 removed from the premises under execution, 
 until one year's rent or a ratable part thereof 
 he jKiid to the landlord, does not apply to goods 
 taken under attachment under the Absconding 
 Debtor's Act. 
 
 ^fiUer V. Liwj, 4 R. & «., 135. 
 
 But xfie oth R. S., c. I'J."), s. 14, which corre- 
 sponds with 4th R. S., c. 107, s. 7. The woril 
 "attachment" has been there specially inserted. 
 
 20. Levy cannot be set aside where exe- 
 cution and judgment unassailed — This was uii 
 apphcutiou to set aside a levy made under an 
 execution issued out of the Supreme Court, 
 reciting a judgment obtained and otherwise in 
 the usual form. 
 
 A rule nisi for the purpose had been obtained 
 at Amherst in June, 1874, but on iiearing the 
 affidavit read upon which the rule nimi was 
 granted, the 'iifficulty presented itself how, as 
 the Sheriff to whom the writ was directed was 
 a mere mini'.terial officer and bound to execute 
 the Queen's writ, as commanded, at his peril, 
 the Court could interfere in this summary way, 
 or take cognizance of any fact presented on 
 affidavits controverting one of its records. The 
 judgment upon which the execution issued was 
 not attacked by the rule 7ii,ii, neither was the ex- 
 ecution itself, but merely the levy. It must, 
 therefore, be assumed that everything prior to 
 the levy was right, for no affidavit can be per- 
 mitted to contradict a record of the Court, un- 
 less where fraud, or perhaps mistake, is alleged. 
 
 And if the judgment, were irregularly signed, 
 the summons, says Ch. Aroh. 987, should specify 
 the irregularity complained of, and the defend- 
 ant will not be allowed to go into any matter 
 not so specifietl. No precedent, authorizing a 
 rule to set aside a levy of a Sheriff, leaving the 
 judgment and execution intact and unimpaired 
 can be found. And it is laid down (Ch. Arch. 
 641) that although the writ be irregular, yet 
 
 I unless it be set aside, the party at whoso suit 
 j it issued, or his attorney, may justify under it. 
 I If there be no writ, or a bad writ, trespass lies. 
 I (2 W. Bl. 1190.) Under a rule jiini, to set aside 
 
 a levy merely, it would be most imsafe, and 
 
 without precedent, to investigate the merits of 
 ; a judgment recited in the Irody of the execution. 
 
 If such a precedent were once established, it 
 
 would supersede tije necessity of applying for 
 I netv trials, or giving lionds or security in the 
 I usual and accustomed way. It would introduce 
 
 a practice fraught witli danger and difficulty. 
 
 If the defendant has a grievance he has niis- 
 ; taken the means of remedying it. The rule 
 
 tii.ii should be discharged witii costs. 
 
 Kimjky v. Smith, iinrfjtorlrd, 
 
 delivered Jan. IS, 1S74- 
 
 I 21. Le>7-4thK.8.,c.97 8.5-t'r.5thR.S., 
 c. 104, O. 46, R. 4 — Levy under the attachment 
 under 4th R. S., c. 97, s. "i, may be made before 
 service on the agent. 
 
 The levy is effectual from the time of seizing 
 the property and not merely after aj)praisemcnt 
 and selection of the property to be held to re- 
 spond the judgment. 
 
 The Merchaiitu' Bank v. The Steel Co. of Canada 
 (Limited), "i R. & (!., 258. 
 
 The question settled by the latter part of the 
 above decision arose from the peculiar wording 
 of 4th R. S., c. 97, s. 5, which has been changed 
 in 5th R. S., c. 104, 0. 46, R. 4. 
 
 22. levy under execution on goods in 
 
 posseasion of a third party under lease — 
 Sale under levy will not pass goods — M. having 
 been arrested under a writ of capias issued at 
 the instance of the plaintiff out of the Justices' 
 Court, gave a confession of judgment for the 
 amount claimed and cotts, upon which judgment 
 was entered and execution issued. After the 
 giving of the confession and entry of the judg- 
 ment, but before the issue of the execution, M, 
 was released from arrest by plaintiff. Certain 
 goods of M., I 'der lease for an unexpired term, 
 were sold under the execution, after having been 
 levied upon and returned to the lessees. On the 
 same day that M. was released from arrest he 
 gave a bill of sale of the goods to C, who sold to 
 defendant. Plaintiff having claimed the goods, 
 after the expiry of the lease, under the levy and 
 sale, 
 
 Held, that the voluntary discharge of M. by 
 plaintiff operated as a discharge of the judgment 
 and that no execution could issue subsequently. 
 
 Also, that even if the discharg of M. did not 
 operate as a discharge of the judgment, the sale 
 
563 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 664 
 
 of goods, wliicli at the time were in the legal 
 posBession of anotlier, and not subject to levy, 
 wriB unauthorised and would not pass title. 
 
 Fra.ter v. Jenkinx, 20 N. S. R., 
 (8 R. & (!.), 494. 
 
 23. Levy on gold taken out of mine in 
 
 which defendant haa a share under parol 
 agreement — Equitable powers of Court — Plain- 
 tiff made an oral agreement with (J. the owner 
 of a gold claim, to work a portion of the claim, 
 plaintiff receiving two thirds of the profits 
 after paying all expenses. Defendant, acting 
 as Slieriff of the County of Hants, levied upon 
 and sold certain gold taken out of the mine by 
 plaintiff, on an execution against G. Plaintiff 
 having brought trover for the gold so taken and 
 a verdict having pa.ised in his favor, 
 
 ITe/d (1), that uniler the agreement to work 
 the mine for a share of the profits, no interest in 
 the mine was transferred to plaintiff within the 
 meaning of sec. 4 of the .Statute of Frauds. 
 
 (2.) That the Slieriff should have sold only 
 the execution debtor's share, leaving tlie pur- 
 chaser to settle with the plaintiff. 
 
 (3.) That though the verdict for plaintiff 
 might be set aside and a new trial ordered, it 
 not appearing that the defendant by tlie sale 
 put it out of tlie plaintitFs power to take the 
 property or pursue his remedy against the pur- 
 chaser, yet the plaintiff liaving an undoubted 
 right to a share, if not the whole of the gold, 
 under the equitable powers of the Court, it 
 ought to be referred to a Master to ascertain 
 the agreement between plaintiff and G., take 
 an account of the expenses of working the mine, 
 &c., and report the balance, if any, which was 
 due by the plaintiff to G. at the time of the levy. 
 The question of costs to be decided after the 
 making of the Master's report. 
 
 McDonald v. Geldert, 3 N. S. D., 551. 
 
 24. LeTy— The last cow cannot be taken 
 
 on an execution issued out of the Magistrates' 
 Court. 
 
 McLean v. IVatson et eU.,2 Thorn., 406. 
 
 25. Payment Into Court — An executor 
 
 may be required to pay funds of estate into 
 Court in certain cases — An executor and trus- 
 tee who has by his pleas admitted that he has 
 funds of the testator's estate in his hands may be 
 compelled, at the suit of his co-executor and co- 
 trust«e, on sufficient ground shown, to pay such 
 funds into Court, and also to lodge in Court all 
 securities representing such funds. 
 
 Duuphy el al. v. Wallace, 1 Old., 383. 
 
 26. Sheriff not ordered to pay OTer 
 
 money collected under, where conflicting 
 claims — The Court will not grant a rule iim to 
 compel a Sheriff to pay over moneys coUecteil 
 under execution, where there are conflicting 
 claims to the fun<ls, but will leave the parties 
 to tlieir remedy by action. 
 
 Scott V. Anrfw^, James, 183. 
 
 EXECTTORS AXD ADMINISTRATORS. 
 
 1. The account of an administrator who 
 
 \» a creditor of the estate must be filed at leant 
 a montli before distribution of tlie estate. 
 
 Eitatt of Catherine McDonald, James, 342. 
 
 2. Actions by and against — Set-off— The 
 
 Court threw out a strong opinion, that defend- 
 ants could not set up as a defence to an action 
 by a surviving executor, that they had agreed 
 to advance certain goods to the deceased exec- 
 utor in his lifetime, which were to be credited 
 and received by him as such executor in pay- 
 ment of the moneys to become due on the 
 bond sued on ; but the point was not formally 
 decided. 
 
 Bath, Executor, v. DennUon et al., 
 
 3 R. & C, .303. 
 
 3. Action on administrator's bond by 
 
 Judge of Probate — Equitable defence — An 
 action was brought at common lav by the Judge 
 of Probate against an administratrix Jind sure- 
 ties, for not faithfully administering. The 
 administratrix made default and the sureties 
 pleaded an equitable defence that the adminis- 
 tratrix had, with the knowledge of the creditors 
 at whose instance the suit was brought, contin- 
 ued trading, instead of settling the estate of the 
 intestate, and that the deficiency of assets had 
 resulted from such trading. The jury found the 
 issues raised by this plea in favor of the defen- 
 dants, and the cause was then referred to the 
 Equity Court, where the learned Judge held 
 that the creditors were estopped by their con- 
 sent, and a decree was made in favor of the 
 defendants, with costs. 
 
 On appeal from this decree, the Court held 
 that however this equitable defence might avail 
 against the creditors so assenting, it afforded no 
 answer to those, if any, who had not acquiesced. 
 And the cause was referred to a master, to as- 
 certain whether there were any creditors un- 
 affected by assent or knowledge who were 
 entitled to administration. 
 
 Sutherland et al. v. WiUon et al., 
 2 R. 4G., 354; 1 C. L. T., 95. 
 
565 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 566 
 
 4. Administration granted to a debtor 
 
 of (leceaaed— Asgociating huaband of next of 
 kin — Revoking letters of administration — 
 
 Tlie .Iiulgo o' Probate granted administration of 
 till! deceased to two sisters of deceased ami one 
 Shearer, the husband of one of the sisters. On 
 petition of a brotlier of deceased, the letters of 
 ailininistration were cancelled. Among the 
 griiunda f ot forth in the petition of the brother, 
 ■ttliich resulted in the cancellation, it was al- 
 leged that the petitioner had not been cited, 
 and that Shearer was indebted to deceased on 
 nil lit gages and otherwise. Other ground.'; were 
 get forth upon which no evidence was adduced. 
 
 JIiUI, that it was not necessary to cite the 
 petitioner when the administration was gi-.tiited 
 to the next of kin (of whom the two sisters were 
 a majority), and that there was nothing to pre- 
 vent the Judge of Probate, in his discretion, 
 from appointing a mortgage debtor of deceased, 
 and no objection to associating the husband of 
 one of the next of kin in the administration at 
 their retincst. 
 
 Qnneri', whether the Judge can revoke letters 
 of administration once granted for any reason 
 other than those mentioned in the statute. | 
 
 In re Hatdy, 5 R. & O., 375. j 
 
 5. Administration, letters of— How at-| 
 
 tacked — To an action of replevin brought by j 
 plaintitTs as administrators and administratrix \ 
 of.l. K., defendant pleaded among other pleas j 
 a plea that the letters of administration were 
 null and void, as having lieen granted by the 
 Judge of Probate for the County of Colchester^ 
 whereas J. K., as defendant alleged, at the time 
 of his death had his domicil in the County of 
 Cumberland. A verdict having been found for 
 plaintiffs, defendant moved to set it aside on the 
 groinid that the issue raised by the plea above 
 recited was not submitted to the jury. 
 
 HM, that the issue was properly withheld. 
 The Judge who tried the case was not at liberty 
 to admit any evidence to impeach the validity 
 of tlie letters of administration. If defendant 
 wislied to attack the letters of administration 
 his proper course was by appeal within the 
 time prescribed in the statute. 
 
 Kerr et al. v. McLellan, 3 N. S. D., 502. 
 
 6. €onTerslon — Unauthorized sale by 
 
 widow of property of intestate— The w idow of 
 an intestate disposed of a pair of oxen belong- 
 ing to the intestate's estate for "a barrel of 
 flour, cash and other things," and applied the 
 proceeds to her own sustenance. 
 
 Held, in an action of trover by the adminis- 
 tratrix, that the buyer should have known from 
 
 the manner of the sale that it was not made in 
 due course of administration ; that there was no 
 reasonable ground for supposing that the widow 
 had authority to sell ; and that a sale for such a 
 consideration was not a lawful one, or such as 
 the administratrix would have been bound to 
 perform in due course of administration. 
 
 Maker v. Huhl,y, 5 R. & O., '295. 
 
 7. Costs — When a decree of a Probate 
 
 Court is reversed, as against an executor, he will 
 not in ordinary cases be subjected personally to 
 costs. 
 
 Estate of Catherine McDonald, James, 342. 
 
 8. Costs-Llabllilr to pay costs out of his 
 
 own pocket— To make an administrator liable 
 to pay costs out of his own pocket the notice 
 reciuired by Acts 1853, c. 12, s. 10, must be 
 given, and fraud on his part must be shown. 
 
 In re Estate, of ItalMon, 2 Thom., 195. 
 
 0. Deed to-One David Archibald, dying 
 
 intestate in 1822, letters of administration were 
 duly granted to Hugh McDonald and William 
 T. Archibald, and under proper license the 
 intestate's property was sold in 1825, at public 
 auction, and bought by James McXab, who, on 
 the same day, re-conveyed it to Hugh McDon- 
 ald, one of the administrators, who subsequently 
 conveyed it to another, and after various trans- 
 fers it, in 1859, came into the possession of 
 defendant. In 1863 the heirs at law of the 
 intestate brought ejectment to recover the pro- 
 perty, alleging that the deed from McNab to 
 McDonald was absolutely void, the latter being 
 one of the administrators, and that therefore 
 defendant claiming through McDonald had no 
 legal title. 
 
 Held, that although undoubtedly voidable in 
 equity, the conveyance from McNab to Mc- 
 Donald was valid in law, and that a verdict 
 should be entered for defendant. 
 
 McCurdy et al. v. McDaniel, I N. S. D., 267. 
 
 10. Deed to-Purchase by— The plalntlflT, 
 
 as administrator to Hugh McLean, sold certain 
 lands at public auction to one Harding, giving 
 him a deed thereof, and, on the same day, 
 Harding re-conveyed the lands to plaintiff. 
 There was no evidence to show that the plain- 
 tiff did not act in good faith and for the benefit 
 of the estate. Plaintiff brought ejectment 
 against defendants, who were brothers of Hugh 
 McLean, and were in possession of the prop- 
 erty, and they resisted, on the ground of his 
 having no title, contending that he could not 
 acquire title through himself as administrator. 
 
067 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 66S 
 
 Iltlil, on the principle of McLiod v. OillieM 
 etal.,\ N. S. 1)., 2r)7, that phiintiff's title was 
 valid at law. 
 
 /imijth V. ^fcLMn et ul., 1 N. .S. D., 310. 
 
 11. Deeds to and from - The flittaer of 
 
 (Icfundants tlicd intcHtatc, and the adininiMtra- 
 tion waH taken out by Donald McLcod. Pre- 
 vious to intestate's deatli, a judgment had been 
 reconlcd against iiiiii, which was revived against 
 his administrator, and the real estate sold there- 
 under. At tlie sale, the administrator pur- 
 chased the land, and 8ubge(|Uently executeil a 
 deed of it to the plaintiff. Previous to execut- 
 ing this deed, tlie administrator obtained a 
 letter of license to sell the leal estate, un<ler 
 which the same lands were sold and bought in 
 by plaintiff, to whom the administrator gave a 
 deed. The consideration expressed in the deeds 
 was not actually paid by plaintiff. Both the 
 deeds to him bore ilate the same day and were 
 recorded the same day. Piaintiti' brought eject- 
 ment against the occupiers of the property, and 
 they defended on tiie ground that plaintiff had 
 no title, as he claimed through the administra- 
 tor, who was debarred by the relation he Iwre 
 to the real estate, from giving any title to it. 
 
 //eld, that although botli deeds could be set 
 aside in equity, on application of the heirs or 
 creditors, yet, until they were set aside, the 
 heirs could not resist a recovery in ejectment, 
 and that the verdict for plaintiff must be sus- 
 tained. 
 
 McLeod v. Gillien etcd.,! N. S. D., 257. 
 
 12. Derise to executors for purpose which 
 
 fails — Personal property devised to exefUitors 
 for a purpose which fails must be distributed 
 by the executors among the next of kin. 
 
 Entatc of Alexander McDonald, James, 123. 
 
 13. Evidence in action against— 4th R. S., 
 
 c. 96, 8. 41 — U. nuide a mortgage to defendants' 
 testator to secure the payment of three promis- 
 sory notes. The notes were paid, and handed 
 over to D. , upwards of twenty years before this 
 action was brought by D. , to compel defendants 
 to execute a release of the mortgage. During 
 the subsequent period no payments were made 
 by D. or demanded of him, and the estate of 
 testator was settled without any reference to 
 the mortgage as an outstanding debt due the 
 estate. After bringing the action, D. became 
 insolvent, and made an assignment under the 
 Insolvent Act, and his assignee intervening, un- 
 der an order of the Court, became plaintifif in 
 the suit. 
 
 Held, that defendants must be decreed to exe- 
 cute a release of the mortgage, though without 
 
 costs, they not having opposed the procccdingo 
 of plaintiff. 
 
 Htld, also, that D., not l)eing a party to tlie 
 suit when evidence was taken, was not preven- 
 ted by section 41 of c. 96, 4th R. S., from giving 
 evidence of transact i(ms with defendants' testa- 
 tor, deceased. 
 
 Bell, Ainiijne.e, v. Brown et al., R. K. D., 20. 
 
 14. Evidence produced against— 4th R. 
 
 S., c. 96., B. 41, same as 6th R. S., c. 107, s. 16 
 
 I — The agent of a Life Insurance Company is not 
 competent to give evidence on behalf of such 
 j company of any statements or acknowledgi.ients 
 I of the deceased insured in an action by his exc- 
 ' cutor or administrator against such company, 
 I under 4th Uev. .Stats., c. 96, s. 41. 
 i Wilkins, J., diKxenliun. 
 
 O'Doundl V. Confederation Life Inn. Co., 
 
 \ 2H. &c.,5:o. 
 
 I Reversed on appeal to the .Supreme Court of 
 Canada. 
 I Civs. Digest, 208. 
 
 15. Evidence produced against — 4th R. 
 
 S., c. 96, 8. 41, same as 5th R. S., c. 107, s. 16. 
 — The proviso in section 41, c. 96, Rev. .Stats. 
 (4th series), "Of witnesses and evidence," ap- 
 plies to evidence tendered in causes where the 
 : executors or administrators have become jjarties 
 by suggestion, after the death of the original 
 j party; the word "brought" in said proviso be- 
 ing construed with the word " evidence," ininic- 
 I diately preceding, and not with the words, 
 ! "action or other proceeding." 
 Wilkins, J., dlssfiitiny, 
 
 Chenky V. Murdoch et al., 2 R. k C, .321. 
 Affirmed on appeal to the Supreme Court of 
 
 Canada. 
 
 2S. C. R., 48. 
 
 16. Executor bound by settlement made 
 
 by co-executor — R. H. Bath died at Bridge- 
 town, having appointed Joseph Wheelock his 
 executor. His widow afterward died, having 
 appointed J. C. Troop and Fletcher Bath her 
 executors and trustees, to carry out certain 
 directions contained in the will. The executors 
 of Mrs. Bath in April, 1875, cited the executors 
 of R. H. Bath to appear in the Pi obate Court for 
 the purpose of a final settlement of R. H. Bitth's 
 estate, when it appeared to the Judge of Pro- 
 bate that a settlement had been made by the 
 executor of R. H. Bath and concurred in by 
 Troop, OS executor of Mrs. Bat,h («ee 2 R. & C, 
 403), and he decreed accordingly. 
 
 On reference to a master, further evidence was 
 presented upon this point, and the master re- 
 
£69 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 570 
 
 ported that such sottlemunt Imd bcon conuurreil 
 in l)y Tro'.p. 
 
 //«;//', that this scttlunient procluiluil the co- 
 
 iiig tluit T. J. W,, being a jtrinoipal creditor 
 ami tile Hrst npplioaiit watt leyally entitled to 
 adniiiiiNtratioii in default of ucceptanue by the 
 
 exec'itor and ce.«^ui.'< rjue <n(^/en< from opening up I (Mrtiea primarily entitled, and tliat it was in- 
 the eHtate thus Hcttled, as at the timuof tlie set- ounibent on the Judge of Probate to have 
 tleinenl Troop was acting as an executor, and ' appointeil him. 
 
 not in the cliaractei' >{ a trustee, which hud not 
 yet attiiclied. 
 
 In re Estate of Bath, 3 R. & C, 004. 
 
 17. Grant of administration— Discretion 
 
 of Judge of Probate— 'I'lie granting of admiu- 
 
 I'l.f •lolinMlone, K. J. — 'I'iie Court lieing ei|ual- 
 ly divided, the judgment appealed against nuist 
 stand. 
 
 //( n, Entatt Sojihia Braim , 1 X, S. 1)., .'{DO. 
 
 10. Inventory -Power to order additional 
 
 iatration ik honU non to "the widow of the items to be inserted— 'J'lie Judge of I'robalo 
 deceased was appealed from by his .laughter, on '"''* "'« P"wer, after hearing evidence on the 
 the ground tha^ tiie administratrix iui.l been f'^^'l-*' I" •"''«'■ '"' '-'xecutor or administrator 
 guilty of waste on the lands set otF to her as t" iiH'l'i'l'-' '" tlie inventory, as property of 
 dower. It appeared fiom respondent's allidavit, 'deceased, articles claimed by other parties, but 
 that, whether her acts amounted to waste or •'" eannot re.iuire the executor or administrator 
 not, she considered herself justified in the course to swear to an inventory thus amended by 
 she had pursued. •''** '"''''-■'•• 
 
 IIM, that as there was nothing to indicate '^-^'f'"'^' t''<^ "'sts of tlie proceedings on citation 
 sucli dishonesty on the i)art of the widow as to render an account can Ije allowed against an 
 slioiild preclude her from all right to the a.lmin- , administrator personally, the notice re.iuired by 
 istration, tlie Court couhl not c.mtrol the dis- ' auction 1(», chapter l-J, of Acts of lS.-);{, must be 
 creti.m conferred by the act on the Judge of K'^'^^"- """• ''^' '»"«t appear from the evidence to 
 Probate. have acted fraudulently. 
 
 In re Eitali: of Hoop, R. K. 1)., IG'J. ! /" rt E^tatt of lkll^ton, '2 Tliom., lO.'j. 
 
 18. Grant of Administration — Discretion 
 
 of Judge of Probate — T. J. \V., a barrister, 
 claiming to be a principal creditor of Mrs. H., 
 who died intestate, applied, by petition to the 
 Jud^e of Probate, praying for letters of admin- 
 istration on her estate. A citation was there- 
 upon issued and published calling upcm the 
 creditors, next of kin, and parties interested in 
 the estate to appear and shew i'ausc, if any, 
 why administration should not be granted as 
 prayed. On the day appointed a petition was 
 presented on behalf of a number of persons 
 cliiiining to be creditors of the deceased, praying 
 that administration be granted to \V. K., also a 
 creditor, but only to a small amount, claiming 
 that the appointment of T. J. \V. would be 
 prejudicial to their interests. The Judge of Pro- 
 bate made a decree granting the prayer of tlie 
 latter petition on the ground that a majority 
 of the creditors of the intestate had joined in it, 
 and that the amounts of their claims largely ex- 
 ceeded that of the first petitioner. From this 
 decree an appeal was taken to the Judge in 
 Equity, by whom the decree of the Judge of 
 Probate was affirn;ed. From this decision a 
 further appeal was taken to the full Court, 
 which was equally divided in opinion, Johnstone, 
 E. J., and Dodd, J., holding that the appoint- 
 ment was discretionary with the Judge of Pro- 
 bate, and DesBarres and Wilkius, JJ., hold- 
 
 20. Judgment recorded In Iiretime of 
 
 deceased — Estate declared insolvent in Pro- 
 bate Court — Execution against executor or 
 administrator— Balance due after sale of land 
 may be claimed out of personal assets— 3fd 
 R. S., c. 127, a. 70 —of. 5th R. S., c. 100, s. 72 
 — Where a judgment has been duly recorded in 
 the lifetime of a deceased party, and his estate 
 has been declared insolvent by the I'robate 
 Court, an execution may nevertheless be issued 
 on such judgment, on a proper suggestion of the 
 facts on the record, against his executor or 
 administrator, but can be extended only on the 
 land bound by such judgment. 
 
 If any balance remains due to such judgment 
 creditor, after a sale of the land under such exe- 
 cution, he is entitled to claim therefor out of 
 tl'.e personal assets of the deceased, under the 
 provisions of the Probate Act, 3rd Rev. fStats., 
 c. 127, s. 70, (same as 5th Rev. Stats., c. 100, 
 s. 7-2. 
 
 Burrowes v. Isnor, 1 Old., 686. 
 
 21. Legacy— Common law action for— 
 
 Held, that an action would lie at common law 
 against one of the executors of a will containing 
 the following bequest : " I give and bequeath to 
 my wife Elizabeth, a decent, suitable and com- 
 fortable maintenance, to be furnished and pro- 
 vided for her by my son, Elisha Ells, hereinafter 
 
671 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 /S7? 
 
 ilirecti!(l." Thcro was a Htibavqiiviit hcciuvHt and 
 (luvittv of 111! rcHidiiL' of purHonal iind rt'iil cMtatu 
 to KHnIiu, oliargi'il with tliat )i4M|iii'i<t. Kliitliu and 
 Jonathan KlU were appointc'd exi'cutors. Action 
 againwt KiiHiia. 
 
 An ai:ti(in for a certain legacy can bo main- 
 tained in Coininon Law (\iiirtH ugainKl any per- 
 son, wlio, under a will, is made lialilu to pay 
 BUcli legacy, anil receives under such will, funds 
 sutlicient to ]>ay it. 
 
 Eli- V. ElU, 1 Thoni., ('ind Kd.), 17.3. 
 
 '22. Letters of Probate — Executor nof 
 
 liable for moneys paid, though will afterwards 
 get aside- Notice of application to set aside 
 will — Defendant was appointed executor under 
 a will which after he had ohtainetl proliate and 
 had collected debts, paid legacies, &c., was set 
 aside for want of due execution. 
 
 Ill Id, that the granting of probate was a suf- 
 ficient defence to an action brought by the ad- 
 ministrators to recover the moneys paid. 
 
 Alf'O, that plaintitls' case was not strength- 
 ened by the fact that defendant l)efore paying 
 the legacies had notice that the will would be 
 attacked upon another ground than that upon 
 which it was set aside. 
 
 Randall tt at. v. Delap, R. & G., 106 ; 
 « C. L. T., 144. 
 
 23. License to sell— Whether creditor can 
 
 obtain grant of-2nd R. S., c. 130 ss. 13 & 17 
 —of. 5th R. S., c. 100 88. 26 & 30— 
 
 Per Young, C. J. and Dodd, J. — The grant- 
 ing of a license for the sale of real estate under 
 2nd R. S., c. 130 ss. 13 & 17, is discretionary 
 with the Court of Probate, and that discretion 
 was rightly exercised in the present instance, 
 by the refusal of such license. The application 
 for license was made by assignees of judgment 
 creditors of the intestate. 
 
 Per DesBarres and Wilkins, J J. — The Court 
 of Probate had no power whatever to grant 
 license to sell on such an application. 
 
 In re Estate of 0' Sullivan, 1 Old., 549. 
 
 24. Objection that administratrix cannot 
 
 bring ejectment — Must be taken before trial 
 — An objection that administratrix cannot bring 
 ejectment, or that infants should have sued by 
 their next friend, should be made before trial. 
 McRae el al. v. McRae, Cochran, 76. 
 
 25. Order for sale of lands made by 
 
 Governor in Council — How attacked — John 
 McDonald, the owner of certain real estate, died 
 insolvent, having appointed four executors, took 
 out Probate and obtained an order from the 
 
 Ciovcrnor in Council for the sale of the landi, 
 under which the lands were s(dd to Chisholni. 
 
 lltlil, that altiiough the other two executors 
 had not renounced, and the two wiio acted lunlcr 
 the order had not given the security rei|uinil liy 
 Statutt;, yet the order could not be impugneil hy 
 this Cour 
 
 Halliburton, C .1., dinxi'iitimj. 
 Chixholm V. McDonald tt al,, 2 Thom., ;jb7. 
 
 2ff. Personal contract terminated by 
 
 death of either party— Tiie plaintiff, by ugriu. 
 ment imder seal, contracted to • erve the testiilnr 
 in tiie business of bookseller and stationer, a» \w 
 siiould direct, for a term of three years, diily 
 two of which had expired at testator's deiitli. 
 It was also agreed that testator should pay tiio 
 plaintiff, in consideration of such services, a 
 lixeii yearly salary ; but no mention was iiiiule 
 in the agreement of the personal representative 
 of either party, nor any provision made therein 
 in case of the death of cither party before the 
 expiration of the term. 
 
 The testator by his will directed his executors 
 (the defendants), on his decease, to dismiss tlie 
 plaintiff, which they accordingly did. 
 
 Held, that the agreement was a mere personal 
 contract, determinable by the death of either 
 party, and that no action could be maintained 
 against the executors by the plaintiff for his ills- 
 missal, nor for the insertion in the will by the 
 testator of the clause directing it. 
 
 Grant v. Johnnon et al., 1 Old., 493. 
 
 27. RemoTal of executor — Suit for — 
 
 Interlocutory order to compel executor to pay 
 into Court the proceeds of sales in a suit brought 
 to remove the executor from office, refused, tiie 
 affidavits on which it was founded being an- 
 swered in every essential particular. 
 
 Smithers et al. v. Smithers, R. E. D., 483. 
 
 28. Submission and award— No estoppel 
 
 between other parties — The surviving executor 
 cited the parties interested in the estate of the 
 deceased to attend for the purpose of a final set- 
 tlement, and a preliminary question was raised 
 as to whether all matters in dispute had not 
 been settled by an award. The award in ques- 
 tion resulted from a submission to whicli the 
 executor and executrix alone were parties and 
 recited differences between those parties only. 
 It appeared that other parties than those were 
 interested in the estate, viz., the children and 
 the creditors of the testator. 
 
 Held, that whether the parties to the submis- 
 sion were or were not estopped, as there were 
 other parties interested, the Judge of Probate 
 
bVi 
 
 FEME COVERT. 
 
 574, 
 
 ihoultl have overrule*! the ptcliininury ulijuction I 
 liiiil (li'i'iik'il u[K)n tliu evidence independi-ntly of 
 tlie HuliiniHiiDii. { 
 
 In n i^.^tatt 0/ ihorye Smithen, 'A R. A (}., 3(Kl ; j 
 
 •-'t'. L. T.,00«. ] 
 
 '20. Substitution of executor - Practice — 
 
 Wliiri! Hniiie (if severiil fo-cxi'cutorH apply to lie | 
 
 ri'U'iiMt'(l friiiii the tniHt, the Court Hill n'<(uire 
 
 till! (itiier t'o-oxecutor8 to lie lirouyht lu'fore the 
 
 (.'(luit lifforo they will refer it to a Ma»ler to 
 
 rcpiirt on MuitultleneHH of perHonii to be subiiti- 
 
 tuted. 
 
 /« re Eiitate 0/ Tohin, '2 Thorn., 338. 
 
 EXTKADITIOX. 
 
 Power to try for other oflTences than that 
 
 for which prisoner extradited- 
 
 .svr CKIMINAL LAW, 7. 
 
 {'2.) That tho li((uidutor had no power to 
 interiKjie iu the lUit between the plaintitr and 
 defendant. 
 
 (3.) That even if tiie liijuidator could havo 
 HO iiiterpoBed, he niuit have failed on account 
 of laciiex. 
 
 McDonald, C. J., dii^umtimj. 
 
 Thi //a/i/ax Haukin\i Co. v. The Dominion 
 Sahayt «t Wrukimj Co., (1 K. & O., 3tt4 ; 
 6C. L. T.,490. 
 
 FALSE ABREST AND IMPRISONMENT- 
 Set ARREST, III. 
 
 EXTRA-TERRITORIALITT. 
 
 Courts of one Province cannot restrain 
 
 proceedings in Courts of another Province— 
 
 The plaintiff having commenced proceedings 
 against the defendant company, under the Act 
 of the Province of Nova Scotia relating to the 
 service of process on companies out of the Pro- 
 viiKc, obtained judgment and issued execution 
 under whicii the .Sheriff levied upon certiun 
 property of the defendant within the Province. 
 Tlie defendant company, which was incorpora- 
 ted under an Act of the Dominion Legislature, 
 and had its head otfice at Montreal in the Pro- 
 vince of Quebec, having become insolvent, was 
 placed in liquidation, and an order was obtained 
 by the liquidator from the .Superior Court of 
 Quebec restraining the Sheriff from proceeding 
 to sell under the execution. The order was 
 served after the seizure and before the sale, but 
 the Sheriff proceeded notwithstanding to sell. 
 Sul)se(juently the liquidator interposed in the 
 suit brought by the plaintiff against the defen- 
 dant company, and obtained a ruls to have the 
 execution and all proceedings under it set aside. 
 From the time of the issue of the execution, 
 with the liquidator's knowledge, down to the 
 application for the rule, two months had elapsed 
 (luri )g which time several steps had been taken. 
 Held (1), that the Quebec Court had no 
 power to enforce a restraining order to stay 
 proceedings in the Courts of this Province, but 
 that proceedings for that purpose should have 
 been taken here. 
 
 FALSE PRETENCES. 
 Judgment discharged by-The Court will 
 
 restore a judgment diHchargcd without consider- 
 ation upon faUe (iretences of tho defendant, upon 
 an affidavit a balance l>eiiig due, 
 
 J'oncia V. McDoniifll, James, .^S. 
 
 Ste, alM, FRAl'D AND MISREPRESENTATION. 
 
 FEES. 
 
 1. or Registrar of Probate — Proctor of 
 
 estate liable for— Plaintiff", a Registrar of Pro- 
 bate, was requested by defendant, a proctor 
 practising in the Court, to prepare copies of 
 certain papers. Before the papers were com- 
 pleted plaintiff ceased to be Registrar, but was 
 not aware of his removal from office when the 
 order for the papers was given. Tho work was 
 charged, not to the defendant, but to the estate 
 for which he was acting. The Magistrate's 
 Court ond the County Court, on appeal, decided 
 in favor of plaintiff. 
 
 Held, that the defendant was liable for the 
 fees 
 
 Bliss V. Dickie, 1 R. & G., 246. 
 
 2. Witness fees— 
 
 ^«e COSTS. 
 
 FELON T- 
 ^ee CRIMINAL LAW. 
 
 FEME COYERT. 
 ^ee HUSBAND AND WIFE. 
 
675 
 
 FISH AND FISHEUY. 
 
 576 
 
 FENCES. 
 Erection oi -TrmpAu Plnlntlff and de« 
 
 fciiilunt wvro uiljniiiiii^ pnipriutoi'M, thuir iiin- 
 ])ui.'tivu lolN liuing (liviiliMl l>y iiii oi'tlinary \»mt 
 unit Ixxinl fuiioe. 'I'liiii fmicu wiiit bluwii ilown, 
 itnti ilufi'iiilaiil L'iii|ili)yL'il pcrHoiiH to )>uilil ii 
 IK'W oiiu, wliii'li tlillui't'cl from tliu old in that 
 thv poHtM liail "hIiol'n," 'I'Iiv vxouvatioiiH iilviih- 
 nary fur tlic pontn and "hIioi'm" wrru made l)y 
 (k'fcixlant, partly on ,liiti own and partly on 
 plaintiirH lanil. 
 
 Jlilil, that dufundanl had no right to cxcavutu 
 or build upon )>laintitl"H land. 
 
 Iluiihr V. lioniic, 2 N. S. 1)., 113. 
 
 FILIATION- 
 See BASTARD. 
 
 FISH AND FISHERY. 
 1. Action for penally -DcRiuIt- Practice 
 
 — I'laintiil', an IiiHpoclor of Kivcr Fislu'rien, 
 brought an action for a penalty against di'fi'ii- 
 dant, and thu latlur not appearing, entcruil up 
 juilginont against hint for !?40.(Kj, the full amount 
 of the peiuvlty prescribed for the otl'ence, 
 
 III Id, that before doing so the plaintiflf should 
 
 have given some proof of the offence beforo a 
 
 Judge of tho Court, who would then decide 
 
 and direct what penalty should be imposed. 
 
 Mason V. Muhar, 1 N. S. D., 314. 
 
 2. Brand -Warranty -I'laintiflfs sold to de- 
 fendant a (juantity of tish, packed in barrels and 
 half barrels, inspected by one of the plaintiff's, 
 not being a sworn inspector, as provided by 
 Statute (3rd R. 8., c. 85), and by him branded 
 •'CJulf Herring, Split No. 1," the statutory 
 description of inspected herring. Before pur- 
 chasing, defendant examined a few barrels 
 which were opened, and saw none unsound. 
 The fish were shipped to Boston, and on in- 
 spection there they turned out bad, with the 
 exception of four barrels, and were returned to 
 Halifax, whore they were again inspected. 
 There was strong evidence that the fish, when 
 sold, did not correspond with the brand, and 
 the jury in answer to a question put to them by 
 the Judge, found that the fish, when sold, were 
 not, as a whole, properly cured and merchant- 
 able ; but to another question, whether the fish 
 
 were fraudulently put up for thu purponu of tie- 
 ception, they niiidu answer in thu ncgiitivu, A 
 verdict |>aNHed for thu plalntitln for #.'i.V), tint 
 claim being about I^IIIK). 
 
 Ililil, that Iho brand, "tiulf Herring, Split, 
 No. I," amounted to a warranty that the tinli 
 were of thu ijuality eominurcially known uiiili.>r 
 that denoniinatiiiii'; that it was not ncrci^Mary 
 for defendant to bring a cross-action on tlio 
 warranty, but that he could give evidi^mc df 
 tho breach of the warranty as proof of failure 
 of eonsiduration, and that thu verdict should lie 
 set aside with coMts, 
 
 Madir >.t al. v. Joitei, 1 U. & C"., S'J. 
 
 3. Crown cannot crant exclusive rljg;lit lo 
 
 AbH in navigable waters —The tVown liiiiimi 
 
 grant the waters of a navigable arm of the Ncii, 
 
 HO as to give a right of exclusive tisl'ing tiieieiii, 
 
 Mtlniier v. Faiinixij, 'JTIioni,, 1)7, 
 
 4. Deputy InHpector-Actlon agaln»i( b) 
 
 Inspector to recover costs of re- inspection, 
 &c.— Plaintiff, an inspector of pickled lisli umler 
 c. 49 of tho Dominion Acts of IH74, liiDiigiit 
 an action to recover from tho Deputy Ins[)ecti)i' 
 the cost of re-inspecting lish improperly bnmileil 
 by the Deputy and the ditFerence between tlie 
 value of tho fish as determined by tho lirat 
 inspector, and tho value as ascertained by the 
 re-inspection, which amounts the inspector liml 
 paid to the purchaser of the tisli, 
 
 //(/(/, alHrming the decision of the County 
 Court, tliat the Inspector's only remedy as to 
 tho difference in valuation was on the bond pro- 
 vided by the Statute to be given by the Deputy 
 Inspector, and tho ;cost of re-inspection, which 
 the County Court Judge had hold to be recover- 
 able, being under .?20, did not bring the case 
 within the jurisdiction of the Court. 
 
 liyaii V. Hawts, 3 R. & C, 595. 
 
 5. Fisheries Act, 1868, Dom. -An appeal 
 
 lies to the Supreme Court from a conviction for 
 
 penalties under the Dominion Fisheries Act, 
 
 1868, c. 60. 
 
 iiue.tn v. Todd, 1 R. & C, 62. 
 
 6. River Fisheries Act — Appeals under 
 
 the River Fisheries Act must be made to the 
 
 86BS1011S 
 
 Gough V, Morton, 2 Tlioni., 10. 
 
 7. Violation of Convention of 1818 and 
 Dominion Fisheries Act — 
 
 See CONVENTION OF 1818. 
 
«77 
 
 FORBEARANCK 
 
 878 
 
 rilTVRES. 
 1. D«maKeii tor removal of-In an action 
 
 liy plikiiititr to ruciivor <lutiiu|{uM for tliu reiiioviil 
 ol liMiiri'i' friiiii iirojHMty of tlio |iluiiititl', ocou- 
 pii'il hy ilffuinlaiit iih a ti'iiiiiit, lliv latti;!' rulitiil 
 on II liill iif Halu fi'Diii {.> , a fiiriiHT tunant, Ity 
 ulioiii tliu tixtiu'UM liail l)ui!ll plauuil u|i<iti tlio 
 lii'tMiiiriuH, ami uiiilui' wlioni tliu ilvfuiulai't had 
 giiiii' in. 
 
 Tilt' term for u-lilul< ij. Iiuld imviiig expired 
 iii'foiv thu runiDval of tliu tixturca, 
 
 III III, that |ilaiiititr iiiUHt rocover, ami that 
 tilt jiiilgiiiont for thu dufumhiiit iiiUHt lie net 
 aitiili'. 
 
 .Iu>l)jtiii'iit having huun givt'ii for dcfuiiihiiit 
 nil II fiii'tiiur trial, Judgtiicr\t waH now uiiturud 
 fur |>liiiiititr, rather than Mund thu uaHu iiauk 
 iigaiii, 
 
 Harrison v. Smith, 7 U. A (■., 510 ; 
 8C. L. T., 58 
 
 i. Trade fIxtures-Kemoval or-Plalntlff 
 
 let to tliu dufuiidant a dwulliiig hoUHu for tliu 
 term of tivu yuarn, with privilegu of renewing 
 uiidur a writtun leatie, in wliiuh tlufendunt cove- 
 niiiitt'd to Hurrender the prcniiHCH in as good 
 cuiulitioii as reasonalile wear and use would 
 permit, and the plaintiff agreud to permit the 
 (lefeiidaiit to remove t!ie lower front room win- 
 dows, lower the floor, substitute a shop front, 
 und make such alterations as he might require 
 for the completion of a shop. Defendant made 
 the alterations, and at thu end of the term (juitted 
 the premises, having removed the counters and 
 siielviiig and a lead pipe and sink. The Judge 
 of the County Court decided that the defendant 
 had a right to remove these articles as trade 
 Kxtures, and plaintiff appealed on the ground 
 timt the decision was against law and evidence. 
 
 The rule for appeal was taken Dec. 3, 1879, 
 mill on Dec. 14, 1880, defendant moved for leave 
 to amend the grounds so as to raise the (juestion 
 as to the right to remove these articles as 
 tixtiires. 
 
 Hilil, that the amendment could not be 
 allowed, and that the judgment below was 
 correct. 
 
 /Vr McDonald, J.— That the question as to 
 tile right to remove the articles was one of fact, 
 upon which the determination of the County 
 Court Judge could not be disturbed unless upon 
 "" 'Jverwhelining preponderance of evidence. 
 
 Pt)' Weatherlie, J. —That the Judge had 
 rightly determined that the articles were fix- 
 tures, which the tenant had a right to remove, 
 and this was the point upon which the case 
 turned. 
 
 Laidlaw v. Taylor, 2 R. & G., 155. 
 19 
 
 riAti or TRvci. 
 
 VeMel raptured In violation of flax of 
 
 truce, restored with full coiti and damage*. 
 Thi /(ulinrk, Stewart, X\'.\, 
 
 Sr.e, PRIZE. 
 
 FORBE.\RANCE. 
 1. Effect of delay In enlbrclng claim 
 
 against principal on liability of surety— H. L. 
 
 and dufuiidant being indebted to V. in the sum 
 of C'i,'J(NI, dufuiidant gave notes for his share, 
 which hu paid. H. L. aHHiimed the payment of 
 the othur half, and assignud to \, u mortgage o( 
 a property on which hu had laid out between 
 i.SlNXJ and £\i*%). In furtliur security, a bond, 
 dated 'M)i\\ June, 1844, was given to V., exe- 
 cuted by H. L. and dufuiidant in the penal sum 
 of i;'J(X)(). H. L. died in 1854, no payment hav- 
 ing buen made either of principal or interest, 
 but leaving thu property given as security in 
 good order. The property held as security hav- 
 ing been reducc^d in value to iJ400 or £500 in 
 consetiuence of a tire, and an action having l)een 
 brought against the surety for the principal sum, 
 with upwards of twenty-tive years' interest, 
 
 Hflil, that " notwithstanding the unexampled 
 and inexplicable delay," the surety was not dis- 
 charged from payment of the principal sum. 
 
 Quaere, as to the claim for interest. 
 
 Scmhle, that if the surety had requested the 
 creditor to sue and had accompanied his request 
 with an ofTer to intlemnify, he would have l)een 
 released in the event of the creditor forliearing 
 to sue. 
 
 Vans, As.iiijnee, v. Letson, 1 N. S. D., 375. 
 
 2. Forbearance to sue, good consldera* 
 
 tion — Defendant was indebted to plaintiff's as- 
 signor, and, upon demand of the amount by the 
 assignee, acknowledged the indebtedness and re- 
 quested time for payment, pi-oniising, in consid- 
 eration of the forbearance, to pa}' the amount to 
 plaintiff. Plaintiff suing for the debt, objection 
 was taken that he was obliged as assignee tj 
 give fourteen days notice under the statute. 
 
 HM, that the forbearance to sue was good 
 consideration, and that plaintiff could recover 
 on an account stated. 
 Parsons, Assiijnce, v. MacLean, 5 R. & G., 45. 
 
 3. Contracts of forbearance— 
 
 See CONTRACT, 36-43. 
 
579 
 
 FOREIGN LAW. 
 
 580 
 
 FORCIBLE ENTRY. 
 
 1. Absence of evidence of violence and 
 
 terror — Plaintiffs, as trustees of a school section, 
 had occupied since 1853 a lot of land reserved for 
 them by 8. O., who, however, had omitted to 
 give them a deed, lu 1871 defendant obtained 
 a deed from the heirs of S. 0., knocked down 
 the fence around the lot and ploughed the land. 
 Plaintiffs proceeded against him for forcible en- 
 try and detainer, but the Judge presiding at the 
 trial ruled that in the absence of evidence of 
 violence and terror the complaint could not be 
 sustained. 
 
 Held, that his ruling was correct. 
 
 BrimdUje el al. v. Thompson, 3 N. S. D., 356. 
 
 2. Application of statute, 4tta R. S., c. 
 
 105— Cf. 5th R. S., c. 126 - Defendant broke 
 open the door of a barn without any circum- 
 stances of terror or violence, and in the bona 
 fide assertion of an alleged right to the posses- 
 sion under a lease from plaintiff. Defendant was 
 arrested under a warrant issued under c, 105, 
 4th R. S., of " Forcible Entry and Detainer." 
 
 Held, affirming the decision of the County 
 Court, that the statute was not applicable to 
 such a case. 
 
 Bertram v. Bonham, 3 R. & C, 600. 
 
 by reason of ony jurisdiction conferred by tlinse 
 Acts, but by reason of the Imperial Bankruptcy 
 Act, which did not give such appeal. 
 
 Ee C'arrell, ex parte GHddon, 5 R. & (!., 410. 
 
 FORECLOSURE - 
 See MORTGAOE. 
 
 FOREIGX ADJUSTMENT- 
 See IjrSURAJfCE, MARINE. 
 
 FOREIGN BANKRUPTCY ACT. 
 
 County Court Judge acting in aid of Lon- 
 don Bank-'uptcy Court — Appeal — A County 
 Court Tudge was applied to, to act in aid of, and 
 as auxiliary to the London Bankruptcy Court, 
 in relation to property of an English bankrupt 
 situate in his district, and made an order accord- 
 ingly- 
 
 Held, McDonald, C. J., dinsenting, that no 
 appeal would lie from such order to the Supreme 
 Court, either under the Insolvent Act of Canada, 
 which had given certain powers to the Judge in 
 reference to insolvents, or uni'er the County 
 Court Acts, inasmuch as his order was not made 
 
 FOREIGN CORPORATION. 
 
 1. Attachment against — Service of pro- 
 
 cess on agent— Collusion — 
 
 See CORPORATION, 1. 
 
 2. Interrogatories — Foreign company 
 
 doing business in Nova Scotia — Ordered to 
 answer— See EVIDENCE, 69. 
 
 3. Jurisdiction over foreign companies- 
 
 See COMPANIES, 2. 
 
 4. Proceedings against— Want of service 
 
 of notice on agent — An application was made 
 by Wallace to rescind an order made for the 
 payment to the plaintiffs of the surplus pro- 
 ceeds of a sale of defendants' land on the ground 
 that the judgment under which plaintiffs claimed 
 the proceeds, and which was taken by defauU, 
 was based on notes given without any consider- 
 ation. Wallace had taken proceedings against 
 the defendants under 4th Revised Statutes, cap. 
 97, sec. 26, as a foreign company doing business 
 in this Province by an agent, but the agent had 
 not been served. 
 
 Held, that for want of service on the agent 
 Wallace was not in a position to make the ap- 
 plication. 
 
 Almon A Mackintosh v. Cole Harbor Land Co., 
 
 1 R. & G., 396. 
 
 5. Suit against— Service on agent-Con- 
 
 structlon of 4th R. S., c. 97, s. 26-Cf 5th R. 
 
 S., c. 104, O. XLVIL, R. 1- 
 
 See COMPANIES, 1. 
 
 6. Suits against- 2nd R. S., c. 134, part 
 
 II., s. 1— 
 
 See CORPORATION, 18. 
 
 FOREIGN LAW. 
 
 1. Cannot affect note dated and to bo 
 
 used in Nova Scotia — 
 
 See BILLS OF EXCHANGE AND PROMISSOBT 
 NOTES, V. 
 
 2. Decisions of tbe United States Courts. 
 
 although entitled to respect, are not binding on 
 
 our Courts. 
 
 Roberts v. Patillo, James, 367. 
 
081 
 
 FRAUD AND MISREPRESENTATION. 
 
 582 
 
 3. Offence on high sea — Foreign ship- 
 British subject — A Hritish Court lias no juris- 
 diction to punisli a foreigner for an offence com- 
 mitted on the high seas, in a foreign ship, 
 against a British subject. 
 
 Queeti V. Kiimmav, James, 62, 
 
 4. Foreign principal- 
 
 see PRINCIPAL AND AGENT. 
 
 5. Proof of marriage under— 
 
 See CRIMINAL LAW, 4. 
 
 6. Proof of— Qualification of witness- 
 
 A witness must state some ground, professional 
 or practical, upon which his knowledge rests to 
 qualify him to speak of the law of a foreign 
 state. It is not enough for such a witness to 
 say that he is familiar with the foreign law, 
 without stating the ground on whicli his know- 
 ledge rests. 
 
 Where a witness has resided in this Province, 
 as American Consul, for six years, during which 
 time certain currency laws were passed in the 
 United States, of which his only knowledge was 
 derived from having them transmitted to him. 
 
 Held, that this was not a su£Bcient qualification 
 in the absence of an assertion that his official 
 duties required him to acquaint himself with 
 the currency laws of his country. 
 
 McKenzie v. Gordon, 1 N. S. D., 153. 
 
 FORFEITURE. 
 
 1. Of goods for unpaid duties— 
 
 Sec REVENUE LAW. 
 
 2. Of grant for non-performance of con- 
 dition- 
 See GRANT. 
 
 3. Of lease - 
 
 Ste LANDLORD AND TENANT. 
 
 4. Of mining nreas- 
 
 Sae' MINING LAW. 
 
 5. Of prize of war- 
 
 Sec PRIZE, 
 
 FORGERI- 
 
 Stt BILLS OP EXCHANGE AND PROMISSORY 
 NOTES, XII., 5 -CRIMINAL LAW, 7- 
 WILL. 
 
 FRAUD AND MISREPRESENTATION. 
 
 1. Action for return of deposit on pur> 
 
 chase of land— All the estate, &c., of defen- 
 dants — Under an order of foreclosure and sale 
 pluintiH's advertized for sale "All tlie estate, 
 right, title, interest and ccjuity of redemption " 
 of the defendants. At the sale one M. became 
 the purchaser, and paid down the ten per cent 
 deposit required under tlie terms of the sale, but 
 refused n> complete the purchase, on the ground 
 that a good title in fee simple could not be given. 
 An order for a re-sale was made and the prop- 
 erty was sold for an amount less than the amount 
 of the mortgage. Plaintiffs applied to the Court 
 for an order for the payment to them of the de- 
 posit on the first sale. M. showed cause, con- 
 tending that he was entitled to the return of the 
 deposit, as a good title could not be given. 
 
 Held, that as the plaintiffs had only professed 
 to sell the title of the defendants, such as it was, 
 and had not been guilty of fraud or misrepresen- 
 tation, and the purchaser would, under his pur- 
 chase, have acquired all that he bid for, he was 
 not entitled to a return of the deposit. 
 Diocesan Synod, Nova Scotia v. O'Brien et al. , 
 
 R. E. D., 352. 
 
 2. Action for specific performance of 
 
 contract in writing — Verbal representations 
 made before contract admissible in evidence 
 — Plaintiff brought suit to compel the perform- 
 ance by defendant of a contract in writing for 
 the purchase of a house. During the negotia- 
 tions defendant asked expressly as to the drain- 
 age, which plaintiff assured him was perfect, 
 but which in fact was seriously defective. It 
 appeared that the representations had been made 
 by the plaintiff in good faith and in ignorance of 
 the facts, and the house being occupied defen- 
 dant could not insf ."ct it for himself. Nothing 
 was said uliout the matter in the written con- 
 tract. 
 
 Held, that in the suit for specific performance 
 the verbal representations made previous to the 
 written contract must be taken into considera- 
 tion, and that, being material representations on 
 the faith of which defendant entered into the 
 contract, they constituted a defence, although 
 plaintiff did not know them to be untrue. 
 
 Thomson v. Longard, R. E. D., 181. 
 
 3. Appeal dismissed where there was 
 
 evidence to auatain the judgment if the 
 Judge believed the defendant and his wit- 
 nesses-Fraudulent sale — Suspicious circum- 
 stances — Defendant, as Sheriff of the County 
 of Pictou, levied upon a horse under a writ of 
 execution issued on a judgment recovered against 
 
583 
 
 FRAUD AND MISREPRESENTATION. 
 
 584 
 
 G. Plaintiff ckimed daniages, alleging that he ! sold to plaintiff were levied upon. The sale to 
 had purchased the horse from (i. prior to the plaintiff took place eighteen months hefore the 
 
 receipt of the execution by defendant 
 
 At the trial judgment was given for defen- 
 dant, on the ground that no /loiia Jidt contract 
 for the purchase and sale of the horse was made 
 between plaintiff and (i. Plaintiff having ap- 
 pealed, 
 
 Held, that as there was enough evidence to 
 sustain the judgment, particularly if the learned 
 Judge believed the defendant and his witnesses, 
 and as he had an oppttrtunity of seeing and 
 hearing the witnesses and judging of their cred- 
 ibility, the appeal must be dismissed. 
 
 Weatherbe, J., diixentmij, on the ground that 
 there was no evidence that the alleged sale was 
 fraudulent, Imt merely of suspicious circum- 
 stances. 
 
 MeKcnzie v. Harrit, 7 R. & (J., 348; 
 7C. L. T.,407. 
 
 4. Assignments in. fk'aud of creditors — 
 
 See ASSIGNMENT, IV. 
 
 5. Badges of fraud — Suspicious cir- 
 
 cumstancea — Judgment below reversed — 
 Power of the Court to review erroneous 
 findings — T. W. and J. W., his son, resided 
 on a farm which they worked jointly and upon 
 which each had placed some stDck. 
 
 In March, 1880, T. W. assigned to J. W. and 
 J., another son, all his right and title to the 
 farm and all his interest in the cattle, sheep, 
 &c., upon it, including a horse which he had 
 purchased from S. a year previous, in payment 
 for which he had given his note. The consid. 
 eration for the assignment was the support and 
 maintenance of T. W. and his wife during the 
 remainder of their natural lives. 
 
 In June, 1880, T. W. was sued on the note by 
 S. and judgment recovered against him, ?nd an counting in the sum of £800, and also for non- 
 execution isHued on which he was committed to i payment of a promissory note for £100 Defen- 
 jail. He obtained his discharge under the Indi- ! dant pleaded fraud and misrepresentatif>n, and 
 gent Debtors' Act in June, 1881. After the as- j that the vessel, the subject of the contract, had 
 signment the cattle remained on the farm in the l not been completed by plaintiff according to the 
 custody of J. W. and J. until December 21st, 1 terms of the agreement between them, but was 
 1881, when J. W., having determined to leave [ unseaworthy, and also a set-off for expenses in- 
 the farm, sold the cattle to plaintiff and received ' curred in consequence thereof, 
 the price agreed upon. J. W. then left the farm i It appeared that plaintiff, being engaged in 
 
 j issue of the execution, and there was no evi- 
 dence to show that plaintiff, when he bought, 
 had reason to suspect that J. W. was not acting 
 f)07ia jidt in the matter. 
 
 He/d, per McDonald, C. J. — That there was 
 no evidence to sustain a finding that the sale to 
 plaintiff was fraudulent and collusive. 
 
 Per Thompson, J. — That suspicious circum- 
 stances having Iwen fully explained by the evi- 
 dence, there was no ground to infer fraud and 
 nothing to be left to a jury. 
 
 Per Rigby, J. —That there was slight evidence 
 of fraud ; Init in view of the whole testinuiny 
 the conclusion of the Jiulge below was erroneous 
 and should be reverse<l. 
 
 Weatherbe, J., dinseiitin;/. 
 
 Where the evidence on a trial is contradictory 
 tlie Court will be slow to disturb the finding 
 below ; but otherwise, where the (juestion is as 
 to the souiulness of a conclusion arrived at on 
 admitted facts, and it appears clearly that the 
 tinding is erroneous. 
 
 The Court will review a judgment founded on 
 an inference of fraud more freely than where it 
 is based on a conflict of testimony. 
 
 lirady v. Jhll, 7 R. & G., 336; 
 7 C. L. T., 408. 
 
 6. Bin of sale— Agreement not to record— 
 
 Per Weatherbe, ,/.— An agreement not to 
 record a bill of sale is not a fraud. 
 
 McAllixter et al, v. Fornyfh et at., 
 
 5 R. & G., 131. 
 
 See ASSIGNMENT, I, 6. 
 
 7. Bills ofjsale- 
 
 Fraud in— 
 
 See BILLS OF SALE. 
 
 8. Caveat emptor — Action for not ac- 
 
 and did not subsequently exercise any acts of 
 ownership over the cattle. Plaintiff, who was a 
 miner and worked away from home and was un- 
 able to care for the cattle, made an agreement 
 with J. to do so for him. 
 
 S. commenced proceedings in equity to set 
 aside the conveyance from T. W. to his sons, 
 
 building a vessel in July, 1864, transferred her, 
 while on the stocks, to defendant by bill of sale, 
 and at the same time gave him a lease of the 
 building yard. The vessel was completed by 
 defendant, and in July, 1865, was delivered to 
 him and he signed an agreement to pay for her. 
 There was no warranty required or given, and 
 
 and having succeeded in doing so an execution no proof of any fraud or misrepresentation on 
 was issued for the costs under which the cattle { the part of plaintiff. 
 
585 
 
 FRAUD AND MISREPRESENTATION. 
 
 086 
 
 Held, that as the defendant had had the fullest 
 opportunity of inspecting the vessel while in 
 progress of completion, and of exercising his 
 own judgment upon her, the maxim caveat 
 em/)for applied, and he was excluded from giving 
 evidence as to her being unseaworthy. 
 
 Alio, that it was not open to the defendant to 
 impeach the note unless there was a total failure 
 (if consideration, his proper remedy for his par- 
 tial failure l)eing by cross action. 
 
 Aim, that evidence under the plea of set-off 
 was properly excluded. 
 
 lirundifje v. Ddanty, 2 N. S. D., 62. 
 
 9. Construction of sec. 133, Insolvent Act 
 
 1875 — Simile, that even before the amendment 
 of sec. 1.3.3 of the Insolvent Act of 1875, by the 
 insertion of the words prima facie (cap. 41 of 
 1871), the presumption of fraud could be re- 
 butted. 
 
 Lotifjworth et al. v. Merchaiitu' Batik; 
 
 R. E. D.,256. 
 
 10. Construction of Statute of Limitations 
 
 —The Statute of Limitations sliould not be so 
 construed as to protect or be a means of fraud. 
 For.syth v. Griffin, James, 241. 
 
 11. Defendant in replevin witlidraws 
 
 pleas— Redress of surety on bond, if such 
 withdrawal fraudulent — In a case of replevin 
 the defendant withdrew his pleas and gave a 
 confession, upon wliich plaintiff regularly en- 
 tered up judgment. Sometime subse(juently W. , 
 who was not a party to the suit, but who claimed i 
 the goods replevied under an assignment from 
 the defendant, and was one of the sureties upon 
 the replevin bond to the Sheriff, souglit to have 
 the judgment set aside, on the ground that the 
 confession was a fraud upon him and tlie other 
 cre<litors of defendant, and also that he had 
 joined with defendant in the pleas, which had 
 l)een wi'Julrawn without his sanction. The lat- 
 ter allegation was denied, both by defendant and 
 defendant's attorney, whom W. swoie he had 
 instructed to act for him. 
 
 ffehl, that W., not being a party to the 
 record, had no /ocu>i utandi, his redress, if any, 
 being against defendant's attorney; and, also, 
 that he had been guilty of lache.s. 
 
 Hare v. Murphy, 3 N. S. D., 202. 
 
 12. Discharge in insolvency — Plea of— 
 
 Replication, that it was obtained by fraud, 
 held good — Where a plaintiff to a plea of dis- 
 charge under the Insolvent Act of 1869, replied 
 that the discharge had been obtained by fraud, 
 Held, that the replication was good, and that 
 
 the Judge who tried the cause had misdirected 
 the jury in instructing them that the question 
 of fraud was only for the Court that confirmed 
 the discharge, and could not be brought up ex- 
 cept by appeal. 
 
 Godkin v, Bfch, 1 R. & C, 261. 
 
 13. Evidence of — Plaintiffs obtained 
 
 85,000 insurance on a mill and machinery from 
 defendant company, in addition to ^,000 in- 
 sured in another office. In a letter from plain- 
 tiffs to their agents in Halifax, they described 
 the mill and machinery as a good risk for $10,- 
 000 (for which they were then instructing them 
 to insure it), and estimated that it could not be 
 replaced for 315,000, although they had pur- 
 chased it from a bankrupt estate for $3,500. 
 Plaintiffs' witnesses valued the property vari- 
 ously from §12,000 to §20,000, and defendants 
 called no witness as to the value. 
 
 //eld, that the verdict for plaintiffs could not 
 be disturl)ed under this evidence on the ground 
 of a "false and fraudulent representation that 
 the property insured was worth §15,000 when 
 its real value v/as much less." 
 
 McGihbon et al, v. Imperial Fire Ins. Co., 
 
 2R. & G., 6; 
 1 C. L. T., 192. 
 
 14. Evidence insufficient to support plea 
 
 of — Defendants purchased a quantity of growing 
 trees, and gave in payment therefor their prom- 
 issory note, which, after passing througli the 
 hands of two other holders, and after it became 
 due, was indorsed to the plaintiff for value and 
 without notice. 
 
 To an action by plaintiff to recover the amount 
 of the note, defendants pleaded, among other 
 things, — 
 
 That they were induced to make the note by 
 fraud ; 
 
 That there never was any consideration for 
 tlie note, inasmuch as the trees, in payment for 
 which it was given, were not of the character 
 and number represented, and were worthless 
 and unmerchantable. 
 
 It appeared from the evidence, that there was 
 no warranty as to the condition of the trees ; 
 that the defendants had an opportunity of 
 examining them before making the contract, 
 and that they asked to be relieved after the 
 contract was completed, on another ground than 
 the misrepresentation alleged. 
 
 Held, that the plea of fraud and misrepresen- 
 tation was not made out. 
 
 Mcintosh v. McLeod ct a/., 6 R. & G., 128 ; 
 
 6C. L. T.,449. 
 
687 
 
 FRAUD AND MISREPRESENTATION. 
 
 588 
 
 15. False representation In application 
 
 for insurance avoids policy— I'laintirt's' w ritten 
 application for inaiine insurance, made October 
 17th, 1870, to tlie St. Lawrence Marine Associa- 
 tion, of whicli defendant was broker, and in 
 whicli he was a shareholder, contained tiie fol- 
 lowing statement : "Insurance elsewhere not to 
 exceed .'S'JidOO." The application was accepted 
 Octo))cr 'Jotli, 1S70, and a jwlicy delivered to 
 the plaintiffs' agent, containing no proliil)ition 
 against insurance elsewliere. The vessel was 
 insured in another company to the amount of 
 92,0(K), on the day the application \vas made, 
 and was further insured for .?'2,0(X» in November 
 following. 
 
 On the 20th February, 1S71, tiie defendant 
 association, none of tiie parties having had any 
 intimation of the loss, cancelled tiieir policy 
 on account of such nthei' insurance, cliarging tlie 
 plaintitfs premium up to tiiat date and remitting 
 tlip premium imyable after date. The vessel was 
 abandoned as a total wreck on Fel>. 19th, 1S71. 
 
 Ill Id, that the statement in the application or 
 slip was a positive representation of a futme 
 fact material to tlic I'isk, and tiiat, being false, 
 it iivoided the policy. 
 
 Mr Donald ,f «/. v. DonU, .S H. k C, •270. 
 
 On afipial to th^ Siiprimc Court of Cauadn, 
 
 Held, reversing the judgment below, tiiat tiie 
 defendants could not l)c allowed to ccintend 
 that the cancellation operated, not fmm 'JOth 
 February, 1871, up to which date the premium 
 was charged, but from November previous. 
 Appeal allowed witli costs. 
 
 McDonald V. Doull, J.'fth Fihrunry IS^U, 
 
 C'as. Digest, 214. 
 
 16. Findings or fraud unwarranted — 
 
 Action of ejectment. Uefendaiit liiiiited his 
 defence to a portimi only of tlie land souglit to 
 be recovered, and pleaded an ecjuitable jilea to 
 the ell'ect that lie had olttaiued possession of the 
 land in quesstion in a verbal exciiange between 
 him and plaintitrs father, in consider ition of a 
 certain otiier piece of land transferred ))y him 
 to the father. I'laintiff re])lieil tiiat the ex- 
 change arose out of false and frautlulent misrep- 
 resentation of dcfeiidaiit, and was afterwards 
 repudiated and cancelled l)y iiis fatlier. 
 
 It appearing from the evidence tiiat after the 
 exchange both parlies immediately entered into 
 possession of their respective lots, tiiat defen- 
 dant exercised dominion over th< land in contro- 
 versy for fifteen years up to the time of action 
 brought, including five years sul'secpient to the 
 exchange, during which the fatlier lived ; that 
 the father died without ever having made any 
 attempt to reclaim it ; that the plaintifi' was in 
 
 possession of the land transferred to his father at 
 the commencement of the action, and that the 
 defendant iiad not in fact made any false or 
 fraudulent misrepresentations as alleged. 
 
 I Held, that his eipiitable plea was establisiied ; 
 that he was entitled to retain all the land trans- 
 ferred to him by plaintiff's father, and conse- 
 
 i (|uently that there should be a general judgment 
 in his favor. 
 
 The finding of fraud by the jury held unwar- 
 ranted. 
 
 j Bell v. CarriUhers, 2 N. S. D., 1. 
 
 n. Findinss of Jury as to -Plaintiff 
 
 insured in lefendants' otfice .*!,S(JO on a buiM- 
 
 ling and 81100 on merchandise, siiips' stores, 
 
 &c. , representing the value of the property in- 
 
 i sured to be .SlS(i(), The property being tf)tally 
 
 , destroyed by fire during tlic absence of plaint itl' 
 
 he notified defendants' agents of the fact, wlien 
 
 they said, "Olitain the information (required) 
 
 ' after you get home, as soon as possible, and that 
 
 ; will do," wiiich plaintiff did. 
 
 Ill hi, that on the (]uestioii of waiver of strict 
 compliance witli terms of policy as to notice the 
 jury were justified in finding for plaintiff. 
 I The jury iiaviiig, in answer to a written (jucs- 
 1 1 ion from the dudge, " Wlielher iilaintill' iiiiide 
 any false representations to tlie comjiany or its 
 agents respecting tiie value of the property in- 
 sured, or any part thereof, or respecting his 
 ; claim for tlie loss, or in any otiier respect," ir- 
 I plied, " Incorrect anil unguanled represeiila- 
 tions tiirougli ignorance respecting the value of 
 the building, ships' materials, puncheons, Ac 
 
 III III, that tills answer negatived fraud on tiie 
 part of plaintiff in the over-valuation of his 
 property, and that tiie verdict, which was for a 
 less amount liian the claim, must stand. 
 Crinn v. Im pi rial Fire Ins. Co., 1 H. .t C, 240. 
 
 IS. Fraud In roluntarj gift— Meaning of 
 
 — Who can attack gift — Effect of setting 
 aside — The question of fraud in relation lo a 
 voluntary gift is, in effect, a questitm of fraud- 
 ulent intention in the donor's breast existing at 
 the time of the gift. 
 
 A proved creditor alone can inipeacli a volun- 
 tary conveyance as fraudulent against creditors, 
 though, when it is so avoided, it is avoided for 
 the lienefit of all the creditors. The creditor 
 must put himself in a position to complain liy 
 obtaining judgment for his debt and showing 
 
 : that by the settlement he is defrauded. 
 
 I Clarh' V. FulUrton, 2 N. S. D., .348. 
 
 19. Frand - Justification for rescinding 
 
 I contract— 
 
 I See COXTBACT, 33 
 
589 
 
 FRAUD AND MISREPRESENTATION. 
 
 690 
 
 20. Fraud not presumed — On a note 
 
 (latfd May 2", 1873, the stump was cancelled 
 l)y writing tliereon '27,r),'73 It appeared on 
 the fiice of the stamp as if the Hgure "3" had 
 liftn written after the '"2," and a pen drawn 
 through it, hut the "7" appeared unerased. 
 It was in evidence, uncontradicted, that the 
 iiiitf, when presented to tiie plaintilT for dis- 
 count, was stamped as it aj)peareii on tiie trial, 
 anil tliere was no plea alleging a fraudulent 
 alteration. 
 
 I/il<l, that the Court could not presume that 
 till' stamp hail hcen previously used on an in- 
 .strunii'iit dated "JSrd May, and fraudulently 
 rc-used, and that the verdict taken for plaintiff 
 by lonsent must stand. 
 
 Murdoch V. Frastr el «/., 1 R. & C, 303. 
 
 21. Fraud on revenue — Smuggling — 
 
 riiiintilV's action was for tiie value of lumber 
 shipped under an agreement tluit defendant 
 should carry it and sell it as agent for plaintiti", 
 for cash or hills of exchange on France. De- 
 fendant could not sell wholly for cash, and 
 exchanged it for tobacco, wliich on its return 
 was snmggled into port and seized by the reve- 
 nue otlicers. The County Court Judge found 
 on the evidence, that plaintiti' was cognizant of 
 the fraud about to he committed on the revenue, 
 and gave judgment for defeiulant, which was 
 reversed by the Court, the evidence of the de- 
 fendant us to the plaintiff's participation in the 
 fraud being wholly uncorroborated and contra- 
 dicted by plaiutitt". 
 
 likthiin v. Gardner, 2 R. & G., 417 ; 
 2V. L. T.,203. 
 
 22. Fraud, question for the Jury— Where 
 
 a iiuestion of fraud arises on a bill of sale to a 
 creditor, it is exclusively for the consideration of 
 the jury. 
 
 Tarralt v. Sawyer, 1 Thorn., (Ist Kd.), '20; 
 
 (•2nd Ed.), ■Hi. 
 
 23. Fraudulently assigned property— At- 
 tachment of, sustained — Defendant applied to 
 set aside a writ of attachment, levy and sheriff's 
 return on the ground that this Court had no 
 jurisiliction because the property attached was 
 Hot that of the defendant, having been conveyed 
 to a trustee in trust for his wife some time pre- 
 viously. AlEdavits were read in rejily to show 
 that tlie trust deed was made fraudidently and 
 ill contemplation of insolvency. 
 
 The rule was discharged with costs. 
 
 Thompson v. Ellis, 4 R. & G., 307. 
 
 24. Fraudulent convcyance- 
 See ASSIGNMENT, IV-BILLS OF SALE- 
 DEED -MORTGAGE. 
 
 2.;. Fraudulent removal of goods to 
 
 avoid diatrefla — H. & M. McDonald made a bill 
 of sale of persimul property, dated July ;"), 1876, 
 conditioned for the payment of §400 on the Sth 
 July, 1877, and became insolvent '24th April, 
 
 1 1877. On the 8th June, 1877, to avoid leaving 
 
 i the property on the premises as a lien for rent, 
 which accrued on the l'2th June, the insolvent's 
 assignee and the holder of the bill of sale, after 
 each advertising a sale of the property to which 
 the other objected, agreed that it should be sold, 
 reserving the proceeds for the adjudication of the 
 
 I Court. 
 
 ' //(/(/, that the holder of the bill of sale was 
 entitled to the ])rooeeds, which were less than 
 tlie amount due him, but that the decree should 
 be without costs, as the controversy had arisen 
 out of an asserted right to sell, which did not 
 exist in either party. 
 
 Ill re 0' Midi in d- Johnittone, R. E. D., 157. 
 
 26. In insurance— 
 
 See INSIBANCE. 
 
 27. Misrepresentation, not made fhlsely 
 
 or with intent to defraud, &c.— In an action 
 on a promissorj' note given in payment for land 
 purchased by defendant from jdaintiff", the de- 
 fendant relied on an alleged misrepresentation 
 as to the quantity of land contained in one of 
 the lots sold. 
 I //(/'/, there being no evidence that the mis- 
 } representation, if made at all, was made falsely 
 or with intent to deceive the defendant, or to 
 induce him to do that which he otherwise would 
 not have <lone, that the defendant could not 
 
 succeed. 
 
 H!l! V. MrL.od, 5 R. & G., '280. 
 
 28. Parties in pari delicto— In an action 
 
 for money had and received, the defendant 
 pleaded, by way of set ofl^, a promissory note 
 i given by plaintiff to defendant. From tlie evi- 
 j dence it was apparent that the transactions be- 
 tween the parties out of which the present cause 
 ; of action arose were intended to defraud the 
 creditors of plaintiff, and that plaintiff and de- 
 fendant were in pari delicto. 
 j Held, that such being the case, the plaintiff 
 ' should not be aided bj* the Court in enforcing 
 his contract, and the verdict for him must be 
 
 set aside. 
 
 Blak-e v. Sfeirari, 2 X. S. D., 70. 
 
591 
 
 FRAUD AND MISREPRESENTATION. 
 
 5Q9. 
 
 29. Pleading- Fraud most be pleaded— 
 
 Verdict — Where a verdict waa found on the 
 ground of fraud, but there waa no plea of fraud 
 on the record, the Court set the verdict aside. 
 Unless fraud be specially pleaded no evidence 
 can be given of it. 
 
 Hill V. Archhold, 1 Old., 452. 
 
 30. Pleading — Frand reUed on as de. 
 
 fence — Must be pleaded — Where fraud is re- 
 lied on as a defence, or as an answer to defen- 
 dant's pleas, it must in all cases be specially 
 
 pleaded. 
 
 McOre(for v. Patternon, 1 Old., 211. 
 
 31. Pleading— Fraud— To be adduced In 
 
 evidence must be pleaded — In an action of 
 ejectment defendant pleaded an ccjuitable plea 
 setting out certoin deeds asjthe links in his title. 
 At the trial plaintiff sought to attack one of these 
 deeds on the ground that it was witliout con- 
 sideration and a fraud on third parties. 
 
 Held, that plaintiff should have replied, alleg- 
 ing the fraud, and not having so pleaded could 
 not adduce it in evidence. 
 
 Kiniuar v. Ilarrimi, 2 N. S. D., 78. 
 
 32. Pleading — Sufflcient declaration In 
 
 action for — Action for deeiiit on representation 
 with regard to the sale of a mining property. 
 The declaration alleged that the representations 
 were made by defendant falsely and fraudulently 
 to induce plaintiff to act upon them, and tliat 
 having acted upon them the plaintiff had thereby 
 suffered loss and damage. 
 
 Held, on demurrer, tliat the declaration was 
 sufficient, although it did not contain any allega- 
 tion that the defendant knew the representation 
 so made by him to be false. 
 
 McKay v. Campbtll, 2 N. S. D,, 475. 
 
 33. Pleading to raise question or f^aud 
 
 in action on policy of insurance— Plaintiffs were 
 insured by (lefen<lant company on machinery in 
 a spool tactory. At the time of the application 
 there was machinery in the building for the 
 manufacture of excelsior, which was not, how- 
 ever, used for tliat purpose till some months 
 after the policy was effected, thougli it was so 
 used before the renewal of the policy, and noth- 
 ing was said to the insurers about such use. 
 The jury found, in answer to questions, that 
 the more haztirdous risk of the two was the 
 manufacture of spools, and that the risk was 
 not increased by adding the manufacture of 
 excelsior to that of spools in the same building. 
 The Court refused to set aside the verdict for 
 plaintiffs entered on these findings, and held 
 that, even assuming that there was a warranty 
 
 against the manufacture of excelsior, it could 
 not be relied on under the plea that the occu- 
 pation of the premises waa not truly described, 
 and that plaintiffs had represented that said 
 building waa occupied as a spool factory, where- 
 as in fact the same was occupied in a much more 
 dangerous and hazivrdous manner, to wit, &c. 
 
 McDonald, C. J., dUsetUimj. 
 Moir et at. v. The Soverevjn Fire Insurance Co., 
 
 6R. &G.,5<r_>; 
 
 6 C. L. T., 541. 
 
 On appeM to the Su/treme Court of Canada, 
 
 Held, reversing the judgment of the ("oiirt 
 below, tliat as the manufacture of excelsior was 
 in itself a hazardous business, the iiitroductioii 
 of it into the building insured woulil avoid the 
 policy under the clause in the policy of in.iur- 
 ance whicli declared : " In case the above de- 
 scribed premises shall, at any time during the 
 continuance of this insurance, be appropriated 
 or applied to, or used for the purpose of carry- 
 ing on, or exercising therein any trade, business 
 or vocation denominated hazardous or extra- 
 hazardous . . . unless otherwise speeially 
 provitled for, or hereafter agreed to by tliis 
 company in writing, or addeil to, or indorsed 
 on this policy, then this policy shall beeoiue 
 void." 
 
 Aho, that it would so avoid the policy even 
 if the jury were riglit in their tinding tlial the 
 manufacture of spools was more hazardous tluiu 
 that of excelsior. 
 
 Held, also, that the addition of the manufac- 
 ture of excelsior to that of spools in tlie said 
 premises was a cliange material to the risk, and 
 avoided tlie policy under the clause which de- 
 clared : "Any change material to the risk, and 
 within the control or knowledge of the assured, 
 shall avoid the jwlicy, as to tlie part atfeeted 
 thereby, unless the change is promptly notitied 
 in writing to the company or its local agent." 
 SocertiijH Fire Iwmixince Co. v. Moir, 
 
 14 8. C. R.,(il-.'; 
 
 7 C. L. T., 129. 
 
 34. Rectification of error In deed caused 
 
 by party seeking to defeat deed — The Court 
 
 will rectify an error in a deed where it has l)een 
 
 caused by the fraud of the party seeking to defeat 
 
 the deed. 
 
 Peart v. PeaW, 2 Old., 73. 
 
 35. Seplevin for goods obtained by false 
 
 representations — Where an action of replevin 
 was brought for goods sold by plaintiffs to de- 
 fendant, and there was evidence to justify the 
 Judge who tried the cause without a jury in 
 coming to the conclusion that the defendant had 
 
593 
 
 FRAUDS, STATUTE OF. 
 
 594 
 
 ma<le false representations to the plaintiifs oa to 
 his solvency, knowing them to be false, the Court 
 refused to disturb the judgment for plaintiifs. 
 
 HoHKOck et al. v. Xeilty, 1 R. & <i., 388. 
 
 36. Representation as to credit — In an 
 
 iiction on the case for false representations by 
 defendant of the credit of one Higgins, plain- 
 tiff's only evidence as to defendant's knowledge 
 of the (losition of Higgins consisted of the fact 
 that he liad a trust dcect from Higgins of all his 
 real estate, and the statement of Higgins that 
 (k'feiidiint was aware of his position. The goods 
 were jjiirchased on a three months' credit, and it 
 WHS ill evidence that at the end of the time 
 Higgins had more tlian sufficient property to 
 meet the claim. The Court refused on appeal 
 to reverse the judgment for dcfen<lant. 
 
 TupjTer V. Crowe, .3 R. & (J., 261. 
 
 37. Shipping — Ownership of- W. 8. and 
 
 I{. & F. S. procured supplies from parties in St. j 
 John, N. 15., and Halifax, N. 8., to lie used in the ' 
 construction of a vessel, which, after her comple- 
 tion, was registered in the name of B. S. ; to the 
 parties in St. John, W. S., and to those in Hali- 
 fax, 15. S., whose name alone appeared upon tiie 
 register, was represented as owner. Actions were i 
 brought liy the St. John creditors against W. S. 
 for tlie goods supplied on his credit, and judg- | 
 ments obtained, and executions issued, under I 
 whicli the vessel was levied upfm and sold as the j 
 property of W. S. While the vessel was in cus- 
 tody of Sheriff, and prior to the sale, ]{. S. exe- 
 cuted a liill of sale in the form re(juired by the 
 .■\ct to tlie plaintiff, one of the Halifax creditors, 
 who immediately had the same registered, and ■ 
 received formal delivery of the vessel from B. S. 
 The Slieriff sold all the interest of W. S. in the 
 vessel to defendant, and delivered a bill of sale 
 <if tiie same, which was not recorded. Plaintiff | 
 thereupon brought an action of replevin, which 
 came on for trial, but, in consecjuence of the 
 lengtli of the cause and insufficient time, could 
 not be concluded. At the suggestion of the pre- 
 siding Judge a rule was entered into, by which 
 it was agreed that a verdict should pass for 
 plaintiff, with power to the Court to determine 
 and draw the same inferences from the evidence 
 that a jury might do, and either enter a verdict 
 for plaintiff or defendant or order a non-suit, as : 
 they might think fit, and also with power to 
 determine the equities, if any, and to order a sale 
 of the vessel and payment of the proceeds into > 
 Court to abide the judgment. i 
 
 HM, first, per Sir W. Young, C. J., Des- j 
 Barres and Dodd, JJ. (Johnstone, E. J., ! 
 doubting, and Wilkins, J., dissenting), that B. i 
 
 S. , being the regiatered owner, woa not preclud- 
 ed, by the levy of executions against W. S., 
 from giving a V)ill of sale to the plaintiff and 
 transferring to the latter a possession sutiicient 
 to support replevin. 
 
 A /so, under the authority of Lane v. Dorsay, 
 1 Old., .57<'>, that replevin would lie. 
 
 .Second, per Sir W. Young, C. J., Johnstone, 
 K. J., and Des13arrc8, J., that the registry of 
 the vessel being only prima facie evidence of 
 title, and there l)eing evidence of fraud and col- 
 hision between W. S. and B. S. in regard to the 
 registry in order to defeat the creditors of tlie 
 former, that under the e(juitable powers con- 
 ferred by tlie rule the parties affected by the 
 fraud should be restored to their just relations 
 to the vessel, and the St. John antl Halifax 
 creditors be admitted to a ratable participation 
 in the proceeds. 
 
 !'()• Wilkins, J., that to draw inferences of 
 fraud, unless they are irresistible in their char- 
 acter, for the purpose of annulling a registered 
 /rrima facie, title to a British ship, is beyond 
 any judicial competency. 
 
 Ptr Dodd, J., that fraud was not sufficiently 
 proved to avoid the prima facie title conferred 
 by the registry. 
 
 Uraiit V. Rohtrtson, 2 N. S. D., 247. 
 
 FRAUDS, STATUTE OF. 
 
 1. Agreement to give property In payment 
 
 of debt — A verbal agreement between A. and 
 B., that B. shall take a net in payment of his 
 debt, although intended as a final agreement by 
 the parties, is not a sufficient compliance with 
 the Statute of Frauds to transfer the property 
 toB. 
 
 McKenzie v. Robertson, James, 2.S4. 
 
 2. Agreement to work mine for share of 
 
 profits— No interest transferred within Statute 
 — Plaintiff made an oral agreement with ii., the 
 owner of a gold claim, to work a portion of the 
 claim, plaintiff receiving two-thirds of the pro- 
 fits after paying all expenses. Defendant, act- 
 ing as Sheriff of the County of Hants, levied 
 upon and sold certain gold taken out of the 
 mine by plaintiff, on an execution against G. , 
 plaintiff having brought trover for the gold so 
 taken, and a verdict having passed in his favor, 
 ffeld, that under the agreement to work the 
 mine for a share of the profits, no interest in the 
 mine was transferred to plaintiff within the 
 meaning of section four of the Statute of Frauds. 
 McDonald v. Geldert, 3 N. S. D., 551. 
 
595 
 
 FRAUDS. STATUTE OF. 
 
 5P3 
 
 8. Agreement too Tague and uncertain— ! a flxerl rate per nimnm, with a Bharc of prntitA 
 Dnft'iiiliiiit ilrt'U- lip mill plucuil in tiie iiamls of | on u Huparatf Wraiich of tlio buMiiifHH. On FiOi- 
 Allan, a real cstatu agent, a nieninraniluni in tlio [ riiary 14tli, IS77, tli'fondant asked for ami dIi- 
 followinj,' form : — " I will sell ten acres of land tained a fortnight's leave of almence, when an 
 (iui'liKJing tlie water lots), as alfo two and three- aix'ounting was gone into, and |)laintitr gave cle- 
 (juarter acres of land Itelonging to Judge .John- fenilant his prf)niis«ory note (which lie after- 
 atone adjoining, for the diiniof four hiimlreil and wards paid) for the halunce of iiis salary ii|i to 
 thirty dollars per acre, eipial to !«."»4S'.'. ,"»(», or ' the end of the year, A|)ril 1st, ISTT- Defendaiu 
 ■tl.'lTO I'Js. (id., and un which sum I will allow did not return, and ]ilaintitr lirought actinii fiir 
 you a coinniissioii of two percent." The memo- non-fultiliiient r)f Ids contract of service and fur 
 ranihiin then specified the terms of sale. Allan money had and received. 
 
 entered into a written agreement with plaintill' Ililil, tiuit although tlio plaintitl' could n<il 
 for the sale of the laud on the terms mentioned, recover on llie count for non-fultilment of ,\f. 
 Tiie agreement not liei ig carried out, piaintitl' fendant's contract, as that was not to he per- 
 brought a suit for specitic performance, setting formed within a year, he could recover on tiir 
 out tile two agreeiiieiits. money couiil, as tiie defendant had recciviil 
 
 //</'/, (1) that the memorandum handed to ' payment for services to lie performed witliin a 
 Allan was a power to sell on the prescrihed few weeks from the time of giving the note, 
 terms without restriction as to jmrchaser, if tlie which services defendant did not reniler. 
 terms could lie olitained. U'iiv v. Li/ioii, 3 R. iV ('., •.'()!). 
 
 (■J) That ])laiiitiH"s riglit to specific perform- 
 ance rested entirely on the dcfeii<lant's iiieiiio- : 6. FraUds, Statute Of, Wlll UOt aid dofen- 
 randum ; that defendant was no party to the dant in perpetration of a fraud— Plaint iff and 
 ngreeineiit entered info hy Allan, and that when defcinlaiit agreed orally that defendant should 
 the latter lirought into the agreement anything advance the cinisidcration money and lake ii 
 that went heyond the memorandum he exceeded ; deed of certahi lands for plaintitl', who .should 
 his authority. j have fourteen months to rcjiay thi c iiisideratiini 
 
 (.3) 'J'hat the agreement could not lie ini- ' liionej-, defendant occupying the lands ineiui. 
 ported into the meiiiiirandiiin, and the latter ' while, in lieu of interest for the money advanced, 
 lieing of too vague and uncertain a character and that defendant should execute a lioml tn 
 to satisfy the Stalate, and not suHiciently des- 1 re-convey the premises to j)laiiititr on payincnl 
 Grilling file lands, specific performance could not of the consideration money, defendant timk 
 he enforced. the deed, liut <lid not execute the 1m mil, v,\-m 
 
 fforuxhij V. Jolni-^loui , 3 N. S 1)., I, I into possession of the land and made iniprnve- 
 
 ' ments upon it ; and when jdivintifl', wilhiii the 
 
 4. Contrart of sale of buildins resting ] time stipulated, tendered the considcrafi-iii 
 on pillars — 3rd R. S.. c. lis, as. 3 and 4— I money and demanded a reconveyance of the 
 Cf. 5th R. S., c. 91, 88. 5 and 9— Action to re- i jiremises, refii.sed to execute a conveyance, 
 cover the price of a certain Iniilding, and plea claiming the premises as his own, under his 
 that the contract of sale was not in writing, ^ deed. 
 
 signed liy the ])laiiitit}'. j J/i/tl, that the Statute of Frauds could nut he 
 
 The plaintitl" gave in evidence that the build- i set up as a defence, to aid the defendant in the 
 
 ing in (juestion was erected on land to which perpetration of a fraud, but that the ])laintiH" 
 
 neither of the parties claimed title, and that it was entitled to a re-conveyance of the prciiiises. 
 
 rested on stone pillars, wliich the plaintiff built, i Ame.ro v. Amvro, R. K. 1)., fl. 
 
 //( Id, insuflicient to give the building the legal 
 
 character of a chattel, and that therefore the 7. Growing trees— Defendants purcliased 
 
 contract was void under the third clause of the a quantity of growing trees, and gave in pay- 
 Statute of Frauds. Had the plaintiff shown ; ment therefor their promissory note, which, 
 that the building rested on the pillars solely by after passing through the hands of two nther 
 its own weight, without being affixed to the pil- holders, and after it became due, was indorsed 
 lars or connected with the soil, the ca.se would to the plaintiff for value and without notice, 
 still have been within the fourth section of the I To an action by plaintiff to recover the amount 
 {Statute. 1 of the note, a defence was raised under the 
 
 McKenzie v. McDonald, 2 N. S. D., 11. Statute of Frauds on the grounds, — 
 
 1. That the trees were goods and merchan- 
 
 5. Contract not to be performed within dise, and there was no receipt or acceptance of 
 a year— Defendant, previous to the 1st April, the goods and no part payment. 
 
 1870, engaged with plaintiff by parol as clerk at ! 2. That the contract having been made in 
 
5fl7 
 
 FRAUDS. STATUTE OF. 
 
 508 
 
 reference to growing treos, rci|uirc(l a note or 
 nicnuiriincliiin in writitij,', 
 
 llilil, tlmt tiie ('ontriii't for the sale of the 
 trecH had no connection with nny intereot in 
 IiiikI. 
 
 Mi'l)oii, !(1, C. J., (/isseiitimj, on tlie ground 
 tlmt the contract was one on which the original 
 |i;iVtt'M could not recover under the Statute of 
 FraiiilH, and th(! plaintiirHtood in tlie Haiiie jHmi- 
 tioii, tlie note having been indorsed to him after 
 iimtiirity. 
 
 Mrlii/osh V. Mil.ioil ft n/., ti K. k (i., 128 ; 
 
 (i(", L T., 441). 
 
 H. (iiiarantpe - Plaintlir brought action In 
 
 ls7.'! tM (.iiforce payment of .'*4(«) and interest for 
 l,iiiil allij.'ed to have been purchaxed hy dufen- 
 ililllt. the deed lieillg made out to defenilaUt'H 
 limllicr ancl left with a tiiiid parly, to lie deliv- 
 I'l'cd til the defendant on his handing' him a note 
 fni the purchase money, signed liy himself and 
 his ludther. Defendant, in his answer, contra- 
 (lictecl all the statements in the writ and set out 
 tliiit the sale was made ilirectly to his lirother. 
 tliiuigli he admitted that lie woiilil have assisted 
 him hy jiiiniiig in a note for the purchase money. 
 Till' videiicc was contlicting, luit the alleged 
 a^'reeiiieiit having lieen made in liS(i(i, the Court 
 lii'lil that the delay in suing was itself a liar tri . 
 the iictiiiii, if, as plaiiititl' contended, the agree- 
 iiifiit was to lie considered as the original under- 
 taking of the defendant, whilc; on the other 
 hainl, if it was to lie viewed as i guarantee, the 
 Statute of Fraiuls prevented a recovery. 
 
 ll'dtiniiaii V. (IV//, R. K. 1)., lit?. 
 
 9. Lease — TwO'thlrds of the annual 
 
 value -I )efend!' 'It's wife entered into an agrce- 
 iiiiiit to lease fifim plaintitl' a portion of a house 
 at a stiimlated rental, for the jieriod of one year, 
 the tenancy to commence on the first -May, ISS.'i. 
 At the time the agreement was entered into the 
 premises were in the occupation of a third party, , 
 who leiiiaiiied in possession a <lay or two after 
 -May Ist, and liefore the date rm which defen- 
 ilam's tenancy was to commence, defendant told 
 plaintitl" that he could not move in on account of 
 his wife's ilhiess, hut that he would make good 
 any loss plaintitl' might sustain in conseijuence. 
 
 11/(1, i„r McDonald, C. J., that there was a 
 lea.se or estate at will created lietween the par- 
 ties which would enable the plaintiff to recover 
 the quarter's rent, though there might be doubt 
 wiic'tlier it would support a promise to compen- 
 sate him for any loss he might sustain in re-let- 
 ting the premises. 
 
 •^'>o, Ritchie, J., concurring, that the point 
 that the lease was bad, the rent reserved not 
 having been proved to be two-thirds the annual i 
 
 value of the property, was not open to defen- 
 dant, not iiaving lieen taken in the Court below. 
 I'tr .McDonald, .1., .Smith, .1., concurring, that 
 there was no proof of authority to ilefendant's 
 wife to make the contract, and that the |>roniise 
 by defendant to pay any loss incurred in re- 
 { letting the premises was not a Hutlieient ratili- 
 cation to turn the agreement into a lease. 
 I i-l/vo, that, assuming the wife's authority to be 
 ! proved, there was, at most, an agreement for a 
 lease. 
 
 .•I/.10, that the omission to prove the propor- 
 tion of the rent reserved to the yearly value of 
 the property was fatal to j)laintitl"s case. 
 /•<-»•.,• V. f. ')•///(■», •_'(! \. S. H., (S R. & C), 5'i. 
 
 10. Parol ovidenrc of trust may be siven 
 
 , consistently with, -I'laintitf in his bill or writ, 
 set out that John lilair granted certain lands to 
 defendant by deed, which though absolute in 
 terms, was given to secure !*(»(«( advanced liy 
 defendant to creditors of said grantor, and that 
 defendant at the execution of the deed, promised 
 to reeonvey to the grantor on jiayment within 
 three years of the amount dut; ; that the estate 
 of the grantor hail become vested in ]ilaiiitirt', 
 who had tendered the .•?(!()() and oU'ereil to pay 
 any balance found to be dui- defendant, who re- 
 fused to acce]it the money or execute a deed. 
 Defeiiclant's answer set up a parol trust to pay 
 in full a debt due by the grantor to defendant 
 and a])])ly the surjilus ratably among five other 
 creditors ; that the amount thus due was more 
 than the jSOOd tendered, and defeinlant otiered 
 to reeonvey the land on payment of the debts as 
 security for which it was given. A memoran- 
 dum signed by the grantor was ilelivered to the 
 defendant at the time of the conveyance, wit- 
 nessing that " the sums attached to the follow- 
 ing names" (the five creditors reft.'rred to by the 
 defendant in hi.-> answer) "are incluilcd as the 
 consideration money of .lohn lilair to Robert 
 Chambers." The creditors referred to were at 
 the time ])res.'=ing Rlair for payment, and gave 
 him time in consideration of this conveyance. 
 The claims of several of them were bought at a 
 reduced rate bj' Blair's son-in-law in Blair's in- 
 terest. 
 
 Hdd, that there was a consideration moving 
 from the several creditois nameil in the memor- 
 andmn to 151air, and a resulting trust in favor of 
 all the said creditors ; that parol eviilence of 
 this trust could be given consistently with the 
 Statnte of Frauds; and that defendant held the 
 land in trust for the payment of his own debt 
 and the debts of the other creditors at their full 
 amount, notwithstanding the purchase of the 
 same at a reduced sum, which was held to be a 
 
599 
 
 GAMING. 
 
 60O 
 
 matter lolely Iwtwfcn those crctlitori and their 
 assignee. 
 
 I'a(fe V. Chambtri, 1 R. & 0., 232. 
 
 11. Reaclndlns agreenent nnder — An 
 
 agreement for the salo of Innils good under the 
 Statute of Frauds may bo rescinded before 
 breach of it, by parol, provided tlieru is a total 
 abandonment of tliu wliole contract, and not 
 merely a partial waiver of gome of its terms ; nor 
 does the validity of such rescission depend on 
 the existence of a consideration. 
 
 Bare/ay v. Proax, R. K. I)., .317. 
 
 1*2. Sale or land — Part performance — 
 
 Defendant anil three others, proprietors of dyke 
 lands in Onslow, u^'reed to imild a breaitwater 
 in front of their lands for the purpose of reclaim- 
 ing certain land covered by navigable water. 
 The works having been destroyed by fresluts, 
 defendant, in consideration of the reimyment to 
 him by M. of the money expended by him, 
 agreed to transfer to M. his interest in the un- 
 dertaking. M. haviiig assented and pai.l the 
 amount stipulated, operations were renewed 
 in 18.")1, and shortly after, as the residt, land 
 began to form. In iHtt.-), M. conveyed his 
 interest in the new formation to plaintiff, wiio, 
 with the others, built a <lyke aroun<l it, and re- 
 ceived a (|uarter of the grass. Defendant allow- 
 ed the plaintiff and the other jwrties to expend 
 their labor in making the property valuable 
 without objection for eleven years after tiie 
 agreement made with M., when for the first time 
 he claimed an interest ui tlie new land allotted 
 to M. and conveyed by him to the plaintiff, and 
 committed the tresjMVSs complained of. It was 
 argued on behalf of defendant that the action of 
 trespass could not lie, as tlie fee was still in him, 
 the transfer to M. being invalid, as having lieen 
 made by parol, and there being no conveyance 
 in writing, as required by the Statute of Frauds. 
 Hthl, that though the Statute of Frauds re- 
 quires the transfer of an interest in lands to be 
 made in writing, the parol agreement for the sale 
 or transfer, having been partly perfoiniec!, was 
 enforceable in eijuity, there being an equitable 
 count requesting the defendant to execute to the 
 plaintiff a conveyance of all his claim or interest 
 in the lands in question. 
 
 Mahon v. McCully, 1 N. S. D., 32,3. 
 
 13. Verbal agreement for sale of land - 
 
 Where the consideration of a promissory note 
 was the purchase of land of which the maker 
 took possession, though there was no written 
 agreement for the sale of the land, and the con- 
 sideration was not expressed on the face of the 
 
 note, the maker cannot ret up ai a defence the 
 want of consideration. 
 
 Gray v. Whitman ft a/., 2 Thorn., 1.57. 
 
 14. Verbal agreement fbr lale of land 
 
 inadmiuible t" ahow consideration — Where 
 a note was given to plaintiff in part piiyinviit of 
 purchaso money of lands, under an agrevinvnt 
 I for sale and purchase not reduced to writing, 
 j hf/il, that evidence could not \hs given of the 
 ' consideration, and that plaintiff could not recover 
 j the amount of the note. 
 
 Ji/nck V. (Umier ft al,, 2 Thorn,, l.'i" ; 
 Lindmy v. Zwirker, 2 N. S. 1)., KM). 
 
 [NoTK. — In the argument of Gray v. IVhitman, 
 which wasjdecided after li/ack v. Oenmr it al., 
 the former case is distinguished from tliu latter 
 by the fact of the maker of the note going into 
 (Missession. The Court in the former merely 
 said that it was clear there must be judgment 
 for the plaintiff.] 
 
 FREIUHT- 
 Sce COMMON CARRIER8- 
 INSl'RANCE- 
 SHIPPING. 
 
 FRIVOLOUS PLEA8- 
 ^ee PLEADINGS. 
 
 FRl'CTUS NATURALES- 
 Cannot be seized under execution— Grass 
 
 still growing and not yet cut does not come under 
 the description of goods and chattels, and can- 
 not be seized and sold under execution. 
 
 Late V. McLean etal.,2 N. S. D., 69. 
 
 GAMING. 
 1. Horse race Involving infraction of 
 
 law — Plaintiff and D. G. entered into an agree- 
 ment to trot a race on the Wentworth Road, 
 for the sum of 850 a side, between the plaintiff's 
 horse " Charley " and a horse owned by W. G., 
 known as " Royal Harry." The money was de- 
 posited in defendant's hands as stake-holder. 
 
601 
 
 GAS. 
 
 G02 
 
 UAS. 
 1. dan Compan) not renponAlble to ocru- 
 
 pierH of property for in)urien ciiUHed by detec- 
 tive rtttinga not the property of the Company 
 — Tli«! fiiclH wuii- lliu mum' an in />(«/;/. v, llali- 
 j'lix Utu Co., 'A N. .S. 1)., .'W.'t, Iml in tiiiM i'umo ih« 
 plaiiititr wiiH tliu ti'iiunt (if tiif liiiimii, luul liin 
 
 III an nctinn l)r(mgiit l>y plaintitT in tliu County { 
 Cnnil III rucovt-r tlii^ ntaUfH, it ap|Kjareil that tlie 
 Wrntwiii'th Knail wuh a puliliu Htrui't within tiiu 
 llmitHipf the town of WiniUor. 
 
 //«/(/, tliat till! ('(intiiiot WttH taintt'il witli illu- ' 
 ^'iklity anil iniNipalilu <if liuing unforcoil, an lifing 
 miuii' in violation of thu pitiviMiuiiH of .">th K. S., 
 c, 4S, H. 7, which niakcM it pi'nal to drivo a horse 
 \\\. full H|K!L'd on thu pi;lilii! street or highway of ulaiin was foi injiirioii to liiit wife and damage 
 
 iiiiy tiiwn or village. 
 
 t^miin, wlietlier the Imperial Act, l.'i (Jco. 
 II., ('. It), Ih in force in tluH I'rovinue. 
 Ihmu V. Chamhers, •_>() N. .S. U., (S U. Ad.), :«)» ; 
 
 »C. L T., 7. 
 
 9. Horse race involving Infraction of 
 
 law-- Where a uontract \» ma<le to run a race, 
 involving an infraction of law, and o .e of the 
 (lepoititorH, heing a party to the wager, notitioH 
 the Htakeholdor while the money depoHited aa 
 u .stuke iH in IiIh hands and lieforv the race is 
 run, nut to pay it over to the other party to the 
 wiijjt'i-, the stakeholder in paying over the money 
 tliivH so in his own wrong, and is respoiiHilile for 
 it til the party so notifying, or his personal repre- 
 sentatives, wlio may bring an action to recover 
 
 it, 
 
 Byerion v. Derhy, 1 R. & C, 13. 
 
 3. Recovery from stakeholder— An action 
 
 ■wiiH lii'ought to recover $U)0 placed by plaintiff 
 in the hands of the defendant for the purpose of 
 Letting on a boat-race. The bet was made in 
 tlie plaintiff's name, but the money was contri- 
 liutcil liy several parties in small sums, and 
 although no arrangement was Uiade, plaintiff 
 stated in his evidence that the several parties 
 were interested to their respective amounts, and 
 if he had won they would have expected their 
 money, and he would have been obliged ii. pay 
 them. I'laintilf countermanded the bet, before 
 the defendant parted with the money, and there 
 was no clear evidence to show that defendant, as 
 Letting agent for plaintiff, had become bound 
 before the liet was so countermanded. 
 
 Hthl, that the contributors could not sue 
 jointly, but that plaintiff was entitled to recover 
 Imck, not the whole amount, but only his own 
 share of the money deposited, for which judg- 
 ment must be entered in the Court below. 
 
 i^ow v. Harriwjton, 3 R. & G., 325; 
 3 C. L. T., 44. 
 
 GARNISHEE- 
 Sit ATTACHMENT. 
 
 to his own goods resulting from an explosion. 
 Some further evidence was introduced to show 
 that plaintitf had drawn the attention of the de- 
 fendants' servants to the <uinilitiiin of the piped 
 some time befort! the explosion, and that they had 
 assured hini that they were all right and that 
 there was no danger. The evidence of contribu- 
 tory negligence on the part of plaintiff was 
 stronger than in Dodge's case. 
 
 lltlil, McCully, .1,, lUnMiiiiinij, that the notice 
 
 given even if as contended for was not suthcient 
 
 to bind the defendants, and the verdic* for 
 
 plaintiff must l>e set aside. 
 
 Tremaiiie v. Hali/ax l/an Co., 3 N. S. I),, 3(«). 
 
 a. Llabllltr of Gas Company -PlalntlflT's 
 
 wife was injured by an exphision of gus, caused 
 by some defect in the gus pil>c, in the room of u 
 house rented and occupied by plaintitf. The 
 room had previously been usetl as an otKce for a 
 factory adjoining, and received its supply of gas 
 from the factory. The factory had for some 
 time l>cen unoccupied, and the gas turned off 
 by the (>as Company. Subse(|uently and shortly 
 prior to the accident, gas was turned on again at 
 the factory. 
 
 J/tld, that the (!as Company was not liable for 
 the injury, not being liable for the condition of 
 the gas pipes inside of any private building. 
 Tremainc v, Halifax Gax Light Co., 
 2 R. & C, 394. 
 
 3. Liability of Gas Company for iiOuries 
 
 by explosion — The occupants of a factory and 
 an adjoining house had the defendants put gas 
 into both and in order to do so it was necessary 
 to have a branch pipe from the company's nuiiu 
 down a private lane leading to the buildings. 
 The only stop cock Iwtween the main and the 
 buildings was at the street. The buildings be- 
 coming vacant the company removed their 
 meters, turned off the gas and carefully closed 
 up all the pipes. Subsequently plaintiff pur- 
 chased the premises, and at his request defendants 
 turned on the gas again. While the house had 
 been vacant the pipe in one of the rooms had 
 been cut or wrepched off by some unknown per- 
 son and left open so that when the gas was put 
 on it had access into the building and coming in 
 
GO.T 
 
 GOOD WILL 
 
 fiC* 
 
 i-iintHct with a \\nUt an I'XploNiiin occtirri'il iluni- 
 a^iii^ tlii^ liiiilrliii^', and fur tliix |ilaliititTI>ri>ii|{lit 
 hin ai'tioii. The Htuti* of th« |ii|iu wan kiniwii 
 four hoiirit Iti'foro thu i'X|iliiiii(iti to tho wifu of 
 thu oct'iipici' of the luiuiiv, Tlut i1i'fi>ii<lanl odin- 
 paiiy hail nnthiii)^ to iln with tht< llttiii>,'N iiiNiiUi 
 thi> liiiililiii^H aH they lK'lnii){i'il to the oi'dipicr, 
 ami tlicir (inly itiity waH to hi'u that thu pipcH 
 were properly Heoiireii when thu luvlerM weru 
 taken away ami thiN they hail done, The learn- 
 ed J iid^e iiiHtriictud thu jury that tiiu plaintifT 
 waH not entitled under thu uvidencu to recover 
 liut they found a verdict for him neveitheluHH. 
 //(/(/, that thu venlii!t Mhoidd he Met UMidu. 
 JJodf/e V, The Halifax (la^ Com/Kiinj, 
 
 ;» N. S. I)., li-jr,. 
 
 GENERAL I88VE- 
 ^'•e PLEADINGS. 
 
 eiFT. 
 
 1. Donatio mortis caosa-Donor eserclB« 
 
 ing acts of ownership after gift— The delivery 
 of tho key of a chest containing money, with 
 the ex[trc8sion, "All the money in that chest 
 I give to you," when the donor subsequently 
 exercises acts of ownership over the chest, will 
 not constitute a donatio mortix causa. 
 
 In re I'Jstate of Hart man, 2 Thorn., 62. 
 
 2. Gin by wife -A wife In the presence, 
 
 and with the ajtparent assent, of her husliand, 
 gave a gold ciiaia (wliieh he had previously j)ie- 
 sented to lier) to a third parly, in trust for their 
 child, an infant six years (dd. I 
 
 Hi/il, a valid gift intir riroi landing the hus- i 
 hand, and that he cfiuld not after the wife's 
 death recover possession of it in un action 
 against the third party, either in his own right 
 or as the guardian of the child. 
 
 Tancrtd v. O'Mullin et al., 2 Old., 145. 
 
 8. Inter vivos— P. gave a young colt to 
 
 H. P., who lived in his family, but there was no 
 evidence of any delivery to H. 1*. , or of any pos- 
 session or use of the colt by him. On the other 
 hand, P. continued to feed and use the colt lis 
 his own until his death ; previously to which he 
 gave a bill of sale of it, among other things, to 
 the plaintiff. Some time after the death of P., 
 H. P. sold to the defendant, against whom the 
 plaintiff brought trover. The jury having found 
 in favor of t)ie gift to H. P. , 
 
 I //(/(/, on a iiioliim for a new trial, thiil tin' 
 faetH nielitioiieil wiie imt HUtliiiillt to conHtiliiti' 
 a gift inlir rirtm, and that the .hnlge hIioiiIiI 
 huvu told thu jury that no title paMMed to H, p,, 
 instead of leaving it to them to establiHli Hie 
 validity of the gift. 
 
 Mrt'arlant v. t'linn,\i'S. S. I)., I»|. 
 
 4. Ulft Inter vlToa -Action of trover ogalnit 
 
 adminiatrator— W, C, thu masier of a iiar< 
 chnnt vessel, made a voluntary gift to the pliijn. 
 I titr, his daughter, of a H]iy glass, Iinniediutuly 
 afterward hu proceeded upon a voyage and wiih 
 lost at sea. defendant obtained possessinn nf 
 thu glass from the plaintitf, promising to rt'turii 
 it to her, but, having been appointed adniiiiiii- 
 trator of \V. C, of whom hu was a creditor, in- 
 ■tead of returning the glass he had it appraisod 
 and sold it. Plaintiff thereupon brought trover, 
 to which defendant pleaded (Ist) denying the 
 conversion ; (2nd) denying the property in tho 
 plaintifT; and, (.trd) alleging that thu glass was 
 thu property of the deceased, of whom defuiid. 
 ant at tho time of the alleguil taking and run- 
 version was administrator, and that as sucli he 
 took and retained, &c. The jury found in favor 
 of plaintiff for $V)() damages. 
 
 //rW, /»r Wilkins and DesBarres, JJ., DoiM, 
 J., concurring, and Sir \Vm. Young, C. J,, uiul 
 McCully, J., diMninlinii, that plaintiff hiiiig 
 in possession at the time of the taking hcul a 
 clear right, even without title shown, to iiiiun- 
 tain thu action against the defendant, who wns 
 a mere wrong doer. That the defendant wag 
 not a creditor within thu meaning of l.'Uh Kliz.. 
 c, .'), but that even had he been srch, he, being 
 administrator, coidd not as such creditor be 
 permitted to impugn the gift, even if the estate 
 were insolvent, and other creditors uere proved 
 to exist. That could oidy be done by the latter 
 or some one of them acting for himself. 
 
 Chtrb: V. Fnlkrton, 2 N. S. 1),, 348.. 
 
 GOOD WILL. 
 Of business — Where a party enters Inta 
 
 a written agreement under seal for the sale for 
 a certain amount of all his right, title, share and 
 interest in a certain business, evidence is inad- 
 missible to prove a prior verbal agreement for 
 the sale of tho "good will" of the business for 
 a sum in addition to the amount so specified in 
 the written agreement. 
 Lindky v. Lacty, 11 L. T., 27.3, distinguished, 
 Axmtin v. Boone, 2 Old., 149. 
 
m GRANT. GOO 
 
 (iOVRRNMENT RAILWAYS ACT. 4. ConflirtlnK xronU In an action of 
 
 fjiMiiiu'iit, |iliiiiititrM clainu'il uiiilfr ii unint from 
 tlu' Ckiwm, which iiiiMNi'il ill 177;). 'I'huiU'Hirij)- 
 tion ill the ^riiiit iiiohnUMl thu Ijmil in i|ut.'itlii>i) 
 ill thu lutioii. iK'fi'inliiiit (U'livcil hiM title frmii 
 agniiif, which jMiMHcil in 17H4, uikI in wliich tho 
 litml til lit' tiiki'ii iinili'r it wun ilcHiiilKMl um lying 
 to ihf iK.rih of tho liinil in thu grunt of 177;{. 
 I '\'Uv luinl takuii |M)KNi'NMioii of tiiulvr thu latti-r 
 gniiit wiiH within thu litiuM of thu forniur grunt. 
 Diiu of thu original griintuuH uiulur thu grunt of 
 1784 (.'onvoyt'd hy rnututi and IioiiiiiIm thu lot, 
 which hu hud drawn at thu divitiion of thu grant, 
 to a iiiirchuHur who convuyuil liy thu huiiiu iiiutcH 
 ; and lioiindii to thu grandfather of the dufemlunt. 
 Defendiint'H title wum hy duHcent from thin grand- 
 father. Original grantee had, in 171W, occupied 
 I and (Uiltivated a jiortionof land in <liH[iiitc. All 
 I the Hul»<e(|iient itosBeMHom hud also occupied and 
 I cultivated u portion. Pari within the metes 
 and hounds was still in u wilderness state. 
 
 //(/(/, such an adverse posMCMsion, even of tho 
 part in a wildernusB state, us to bar claim under 
 grant of 177<'i. 
 
 LawKon ft al. v. Whilwnti, 
 
 1 Thom., (2nd Ed.), 208. 
 
 Acts l(«Hli c. 'ii, >. 109, Dom. - The Do* 
 
 tiiiniiiM (iovurniiu'iil Kailwayn ,\c', Acts of iMHl, 
 i\ '.'.'1, *. W), provides that " No ucticpii mIiuII hu 
 liiiiiij.'lit agaiiiKt any otliccr, eiiiploycu or servant 
 of tluMlcpartmeiil (of Kailways and CaiialM) for 
 ;iii\thiiig iloiiu hy virtue of his otiice, service or 
 iiM|i|iiyineiit, except within three months after 
 till' act committed, and upon one month'H pre- 
 vidiiH notice in writing, 
 
 DefeiiduntM untured into a contract with the 
 Crciwii, represented hy tho Minister of Railways 
 mill Cuiiuls, for the construction of a liranch of 
 llic Iiitcivoloniiil Railway at Dartmouth, X. .S., 
 .iiiil ill tiie prosecution of their work under tho 
 ciiiitiiict entered upon the pluintitF's land. 
 
 All action having heen lirought uguinst defen- 
 iliiiitH fur hreaking and entering, 
 
 Htltl, that defendants were employees within 
 tlio nicaning of the Act, and entitled to thu pro- 
 tectiiin jjiveii therein. 
 
 McDonald, C J,, diM/ttnt'.uij. 
 
 K'n:-Hf v. Oakfi it al,, 20 N. .S. R., 
 
 (8 R. &(.;.), 30. 
 
 GRANT. 
 
 1. (sphaltum an exception In certain 
 
 grants — AHphaltuin is includeil in the excep- 
 tidii, ill certain royal grants in the Province of 
 New liniiiswick of " all coals, and also all gold, 
 silver and other mines and minerals." 
 
 Thu words "mines and minenilM " in the ex- 
 
 cejition are to be understood in their popular 
 
 iiinl ordinary and not in their scientific meaning. 
 
 OV>/(i /• V. Ilax Com /III III/, James, 72. 
 
 2. Boimdarics, ^c— When the position | 
 
 "f tiic iialui'iil boundaries desciilied in a grant 
 liiiiiicit he ascertained, and there is no proof of j 
 the original survey, the limits of the grant can- 1 
 not he extended by implication l)eyond the i 
 courses and <listance3 mentioned in it. 
 
 Tmniuij V. Sttniix, 1 Old., .SOG. 
 
 3. Conditions — Forfeiture for non-per- 
 formance of conditiona of grant — Evidence 
 —The Crown sought to forfeit two grants for 
 non-pcrformimce of conditions as to improve- 
 ments, &c, , but none of the evidence on which 
 tiie Crown relied went further back than tifty 
 years, wliile the grants were ninety years old. 
 
 Hdd, that the evidence was not sutBcient to 
 forfeit the grants. 
 
 Queen v. /i!o&i?i et al., 4 R. & G., 91. 
 
 5. Crown may attack, for excess— Mon- 
 uments referred to control quantities — Sev- 
 eral Crown grants from which piaintiff deduced 
 his title purported to convey a specified number 
 of acres described us eontuined within lines com. 
 mencing ut a fixed point und running specitied 
 distances to other points indicated by marked 
 trees and other monuments which appeared upon 
 plans annexed to and referred to in the body of 
 
 the grants. 
 
 //</'/, that the monuments, being ascertained, 
 must control thu iiiiantities puijiorted to be 
 granted and the ilistances mentioned in the 
 grants, notwithstanding the fact that the num- 
 lier of acres included in that case would be enor- 
 mously in excess of the number which tlie grants 
 purported to give. The least objectionable of 
 all dithciilties is to make (luantities, whether too 
 great or too small, yield to actual monumbnts 
 on the ground. 
 
 J'lr .Sir \V. Young, C. J. — Tlie grants might 
 have been attacked by the Crown for excess, 
 but in the absence of such proceeedings thu land 
 included could not be regranted to a stranger. 
 Under the usage of the Court parol evidenc&iXt. 
 admissible to show the actual position and sur- 
 veys of lands included in grants of wilderness 
 and woodlands. 
 
 Davison v. Bctijamin, 3 N. S. D., 474. 
 
 6. Exclusive right of fishing on navigable 
 
 arm of sea cannot be granted by Crown— The 
 
607 
 
 GRANT. 
 
 60 
 
 Crown cannot grant tlie waters of a navigable 
 arm of t)ie sea, so as to give a right of exclusive 
 fishing therein. 
 
 Meimer v. Fannimj, 2 Thorn. , 97. 
 
 7. Falsa demonstratio — Natural monu- 
 ment controls description — Tiie description in 
 a grant of lanils gave one of tlie boundaries as 
 follows ; " Thence along sliore to a point due 
 nortli of a small pond six chains from an old 
 fort." This pond, ))y admeasurement shortly 
 before trial, was found to be at its eastern end 
 luue and at its western end eleven chains fron> 
 the fort. 
 
 Hi-ld, that this discrepancy must be rejected 
 as fa/sa demoiinfratio, and, the pond being a 
 natural monument, its actual position sliould 
 control and correct the description in the deed. 
 
 Wilkins, J., dnhitantc. 
 
 Archibald et al. v. Morrison, 1 N. S. D., 272. 
 
 8. Forfeiture of grant for non-perform- 
 ance of conditions therein — The Crown sought 
 to forfeit two grants for non-performance of 
 conditions as to improvements, &o., but none 
 of the evidence on which the Crown relied went 
 further back than fifty years, while the grants 
 were ninety years old. 
 
 Held, that the evidence was not sufficient to 
 forfeit the grants. 
 
 Queen v. Rohin et al., 4: R. & G., 91. 
 
 9. From the Crown — Condition making 
 
 void for non-performance — Necessity of in- 
 ouest of office — Where plaintiff claimed under 
 a grant from the Crown, containing a condition 
 that grant shall be void if not settled on within 
 a certain time, 
 
 Held, that a subsequent grant from the Crown 
 for the same loais, under which defendant held, 
 was void, there having been no inquest of office 
 previous to the issuing of such subsequent grant. 
 
 Wheelock v. McKown, 1 Thorn., (1st Ed.), 15 ; 
 
 (2nd Ed.), 41. 
 
 10. Grant to corporation — Mistake in 
 
 name — Where a grant was made to " The Gov- 
 ernors, President and Fellows of King's College, 
 at Windsor, in the Province of Nova Scotia," 
 and an action was brought by " The Governors 
 of King's College, Nova Scotia" (the real name 
 of the corporation), 
 
 Held, that the plaintififs might recover. 
 Governors of Kiiuj's College v. McDonald, 
 
 2Thom., 106. 
 
 11. Latent defect — Cannot be remedied 
 
 by parol evidence— A latent defect in a grant 
 cannot be remedied by parol evidence. 
 
 In order to correct an error in the descriptive 
 part of a grant by parol evidence, tlie evidence 
 must be such as to leave no doubt of the intention 
 of the grantor. 
 
 lirennock v, Fraser, Jame.i, 17s. 
 
 12. Of sea shore by Provincial Govern. 
 
 ment — Held not to pass title — Plaintiff re- 
 ceived a grant from the Provincial (Jovernnient 
 of the shore of a narrow cove or creek at .St. 
 Margaret's Bay. The cove or creek was one of 
 a number of small inlets abounding on the 
 shores of the Bay not having the name or cliar- 
 acter of a public harbor, but had been tised on 
 several occasions by small vessels for the purpose 
 of loading lumber. 
 
 Held, on the authority of Holinan v. Green, 
 6 S. C. R., 707, thai no title passed under tiie 
 grant. 
 
 Fader v. Smith, 6 R. & G., 4.S3! 
 6 C. L. T., 536. 
 
 13. Of water lot— The grantee of a water 
 
 lot, bounded on the shore, is entitled to take up 
 to high water mark ; and that line of his grant 
 changes with the gradual encroachment or re- 
 tirement of the sea. 
 
 Esson V. Mayberry, 1 Thom., (1st Ed.), 144; 
 
 (2nd Ed.), 186. 
 
 14. Parol evidence admissible to show 
 
 the actual position and survey of lands included 
 in grants of wilderness and woodlands. 
 
 Davison v. Benjamin, 3 N. S. D., p. 476. 
 
 15. Possession— Crown cannot grant land 
 
 held adversely- -Where there is a plena ])os'ie.siio 
 of land against the Crown, particularly under 
 color of title, the Crown must re-invest with 
 the possession before it can grant. 
 
 When a grant to A contained a recital that tiie 
 land had been formerly set off to B, and wliere 
 a party was in possession under agreement to 
 purchase from B, 
 
 Held, that the grant was void, the Crown not 
 being in possession. 
 
 Held, also, that defendant's attornment to the 
 lessor of plaintiff was, under the circumstances, 
 inoperative, defendant being under the impres- 
 sion that Miller had a title which, from facts 
 dehors the grant, and unknown to the defendant 
 at the time, it appeared he had not. 
 
 He/d, also, that the returning to defenilant 
 a promissory note, given by him to lessor of 
 plaintiff, payable upon getting a good title to tlie 
 land, was not a sufficient consideration on wliich 
 to found promise to relinquish the possession. 
 Miller V. Lanty, Thom., (1st Ed.), 132; 
 (2nd Ed.), 161. 
 
600 
 
 GRANT. 
 
 GIO 
 
 16. Possession - erant b} Crown or land 20. Possession under allotment-Where 
 
 held adveraely— lilt Crown cannot grant lands, i party entered into possession of land under agree- 
 of which a subject has been in adverse posses- I nieiit to purchase from one rei)resenting liiiiisflf 
 sioii for twenty yuars, without Jirst re-investing | as owner under an allotment of ancient date, 
 itself witli the j,-/js8es8i(.n by office found. The [ //,./,/, that his title was good as against a 
 Imperial Act, L'l, Janjes I., chap. 14, is in force ! grantee holding under grant from the Crown, 
 in tliis I rovuice. dated four years after his entry, and setting out 
 
 Smy'h V. MiDonald et al., 1 Old., 274. 
 
 fact of allotment having been made to individual 
 of same name as the person froin whom defend- 
 ant purchased. 
 
 Mi/In- V. Laiily, 1 Thorn., (1st Kd.), l.S'2; 
 
 (•2nd Ed.), 101. 
 
 U. Possession — Grant of Crown land 
 
 where held idversely to the Crown — In 1807 ! 
 
 the Ctowii gi^viitc 1 to one Scott a lot of land, of 
 
 wliieh defendant had been in adverse po.-^session 
 
 for ten years, and in 1870 Scctt conveyed said 21. Presumptlons as tO— ACtlon Of tres- 
 
 kiid to defendant by deed, which was duly re- ' P'"*s against a .Surveyor of Highways for cutting 
 cdiiled. In May, 18.57, plaintitf recovered ' * ditch through plaintiff's land to carry ott' 
 judgment, which was duly recoi'ded, against water from the highway, and for tilling up 
 .Scott, under which the land in disjjute was sold, another ditch in liie highway, and thereby 
 iiiid imrcluiseil by plaintitl's at the .Sheriff's sale. | causing water to flow over plaintiff 's land. 
 
 HfJd, that the adverse possession of tlefendant Defence. — To the rirst charge : That the for- 
 (liil not prevent the Crown from granting the I 'ner owner of plaintiff 's land helped to construct 
 liiiid to Scott, as such possession, in order to ' the highway, and agreed to the cutting of the 
 hiive such effect, must be defined, actual and i ditch for carrying off the water from the high- 
 continuous for twenty years ; and that although ■ ^vay ; that the ditch had lieen in use for that 
 .Scott's deed to the defendant was duly recorded, i purpose for thirty -seven years ; that occasional 
 the land, although acquired after the judgment \ ol)structions during that time had been removed 
 recorded in I8,")7, was bound by the judgment ' '>y tbe Surveyor for the time being; that the 
 the moment it was granted to .Scott. ditch followed the natural course for the flow of 
 
 LouUbury Land Co. v. Tutty, 4 R. & ti., 401. I w-ater from the highway ; and that the cutting 
 
 complained of was a clearing out of obstructions 
 
 18. Possession - Grant Ol land held ad- which plaintiff had placed in the ditch a short 
 versely— Office found — Where the fatlier of the ! '''"° before. The defence to the second com- 
 (kfendiint had a block of wilderness land, to ' pli"i>t was, that the other ditch was a ditch 
 wliioh he had no title, surveyed in J840, but I ''1""B^'''*^ t''^ highway, too deep to be safe, and 
 built no house except a house for lumbering, I '''"'' •'l'^ defendant, as such Surveyor, partially 
 miule no fences, and only cleared ten acres, and I filled it up, as he had a right to do. At the trial 
 iifterwards, in 1845, conveyed the land by a t''^ Judge excluded the evidence of defence to 
 recorded deed to his two sons, one of whom was ^l^^ ^^^^ complaint, and a verdict, under his 
 the defendant, who ploughed some, but not direction, passed for plaintiff. 
 
 mucli, iijjon it, and the land so conveyed was field, first, that the long use of the drain 
 iifterwtird granted by the Crown in two lots by through plaintiff's land was evidei'ce from which 
 grants dated 1854 and 1868, to a party from '<■ jmy miglit infer a dedication ))y deed, though 
 whom the plaintiff' derived title, and to the there was evidence of an assent to such use more 
 plaintiff himself respectively, I than twenty years ago. Second, that the defen- 
 
 H(ld, that the possession and the deed of the , '1'^"'' '^^^'l "• i"'fe'liti as such .Surveyor, to close or 
 defendiuit did not debar the Crown from so ' alter the ditches along the highway, as a private 
 granting the land without office founil. > proprietor of land in the same situation might 
 
 Smyth V. McDonald, 1 Old., 274, and Gibboiui Verdict set aside accordingly. 
 V. Kilday, distinguished and reviewed. The following propositions were affirmed : — 
 
 CoMin V. Chapi>ell, I R. & C. 40. That as to water not flowing in defined chan- 
 
 i nels, the flowing does not warrant the presump- 
 
 19. Possession — Necessity of ejecting tion of a grant. 
 
 party in adverse possession before Crown can That as the owner of the high land cannot 
 
 grant— W hen a person is in possession of Crown ' collect such waters in drains and precipitate 
 
 and, the Crown cannot grant the land so occu- them on the land of another proprietor IhjIow, a 
 
 pied to another, without first ejecting the occu- grant may be presumed where this has Ijeen 
 
 ' ' ■ done as of right for twenty years, and this not- 
 
 Hliss and Hill, JJ., dUsentiwj. withstanding the Prescription Act, c. 100, R. S., 
 
 Scott V. Henderxon, 2 Thorn., 115. 4th series, sec. 28. 
 
 20 
 
611 
 
 GREAT SEAL OF THE PROVINCE. 
 
 6i2 
 
 That evidence that use began prior to twenty 
 years by consent is merely evidence against the 
 presumption of a grant, and may be met by 
 counter-evidence that the use was afterwards as 
 of right, Ac, for twenty years. 
 
 That the consent by parol to the establish- 
 ment of an artificial course, made more than 
 twenty years ago, is not conclusive that the sub- 
 sequent twenty years' use was not by grant, 
 because such a right could not be conferred by 
 parol alone. 
 
 That a dedication to the public of an ease- 
 ment may be inferred from the like circum- 
 stances as warrant the inference of a grant in 
 the case of a private person enjoying such ease- 
 ment. 
 
 That the surface and ditches of a highway 
 may be altered without liability to an action by 
 the adjacent proprietors. 
 
 Harrinon v. Harrison, 4 R. & G., 3.38. 
 
 2'i. Presumption of— A lot of lanA was 
 
 allotted in 1767 to J. B., as appeared by the 
 drawing or allotment book filed in the Registry 
 of Deeds for the County wherein the lot was 
 situate, and the accompanying plan, by a card 
 alleged to have been drawn by the said J. B. in 
 1767 (the date of the allotment book), the card 
 containing a description of the lot correspoiuliug 
 with that in the allotment book ; and by the 
 certificate of the Registrar of Deeds given by 
 the Registrar to J. B., and proved to be marked 
 with the Registrar's initials. This card and the 
 certificate were proved to have been continu- 
 ously and consecutively in the possession of J. 
 B,, and those claiming under him, and were pro- 
 duced by the plaintiff's at the trial. The block 
 of land allotted by the allotment book contained 
 in the whole 180,000 acres, being the whole 
 township. 
 
 Nothing was known of this book but its 
 antiquity, and the fact of its general acceptance. 
 A grant, which appeared to be a grant of confir- 
 mation passed in 1784, conveying 71,406 acres of 
 the above 180,000. This emn* .ocited a previous 
 grant in 1765 of the whole 180,000 acres, and 
 the grantees under this latter grant (of whom J. 
 B. was not one) were all also grantees under the 
 previous grant, and their title and possession 
 were confirmed by this latter grant. This latter 
 grant, however, stated that the grant of 1765 had 
 not l)een accepted, nor taken out of the secre- 
 tary's office. The plaintiffs were H. J. B. and 
 S. B. , and they traced their title from J. B. as 
 follows : Deed, J. B. to J. (J. B. ; Deed, J. «. B. 
 to H. J. B. (one of the plaintiffs) ; Deed, from 
 H. J. B. (the last named plaintiff) to S. B. (the 
 other plaintiff). S. B. , it appeared, had con- 
 
 veyed the locus to one D. R., and the deed to 
 D. R. had been executed and recorded before 
 action brought. The plaintiffs' counsel at the 
 trial alleged in opening that the action was 
 brought for the benefit of D. R. 
 
 M., a Surveyor, had acted as agent for the 
 plaintiffs, or one of them, or those under whom 
 they claimed, and the defendants had been put 
 in possession by him fifteen years before action 
 brought. The defendants did not attempt at 
 the trial to prove title in themselves, but relied 
 wholly on the alleged weakness of the plaiiitifTit' 
 title. 
 
 I/eld, the Court being at lil)erty to draw the 
 same inferences as a jury might — First, that 
 under all the circumstances a grant of the lot 
 to J. B. in or before 1765 might be presumed. 
 Second, that as the possession of the defendants 
 was not adverse to the plaintiffs, it did not pre- 
 vent the operation of the deed from S. IS. to 
 
 D. R. 
 
 Boutilier et al. v. Knock et al.,2 Old., 77. 
 
 23. Question of title— This eanse came 
 
 before the Court on a rule granted by the Judge 
 who tried the cause, with the consent of counsel, 
 to dispose of a question of title depending uix>n 
 the construction of certain grants. The decision 
 tunied wholly upon matters of fact, and the con- 
 struction of certain grants. 
 
 Smith et al. v. Smith et at., 1 R. & C, '29. 
 
 Crowing— 
 
 GRA8S- 
 
 See FRVCniS NATVRALE8. 
 
 GREAT SEAL OF THE PROVDiCE. 
 Tbe old Great Seal of the Province - 
 
 that in use since 18.37— used on patents ap- 
 pointing Queen's Counsel and regulating prece- 
 dence at the Bar in 1876, ceased to be the Great 
 Seal of the Province on the transmission of a 
 new Great Seal to the Lieutenant-Governor in 
 December, 1869, though not adopted or pro- 
 claimed by the Lieutenant-Governor in Council. 
 James, J., dUnenlimj, Wilkins, J., agrrmg, 
 but expressing the opinion that the presence ot 
 a Great Seal on the document in question, affixed 
 by the proper officers, raised a conclusive pre- 
 sumption as to its validity. 
 
 In re Precedence of Ritchie, Q. C, 
 
 2 R. & C, 450. 
 
613 
 
 HABEAS CORPUS. 
 
 614 
 
 On appeal to the Snprtme Court of Canada, 
 
 The judgment below in this case was ntlirmed, 
 
 but the question of the validity of the Great 
 
 Seal of the Province was, on the argument of 
 
 the appeal, declared to have been settled by 
 
 legislation, 40 Vic, c. 3, l)om., and 40 Vic, c 
 
 2, N, S. 
 
 Lenoir v. Ritchie, 3 S. C. R., 676. 
 
 GVARANTEE- 
 Ste CONTRACT. 
 
 upon a sale, would produce four or five times as 
 
 much as their share of the rental, 
 //*/(/, that the discretionary power of the 
 
 Court was wisely exercised. 
 Held, aJuo, that the discretionary power of 
 
 the Court to order a sale was not determined 
 ; by the appointment of a guardian, and that 
 
 where the guardian, who was the mother of the 
 
 infants, was opposed to the sale, and neglected 
 ; or refused to find security as reiiuired by 3rd 
 I Revised Statutes, cap. 124, sec. 51, the Court 
 . had power to remove such guanlian, and substi- 
 I tute in her stead a suitable person as next friend 
 
 to tile the necessary bond and effect the sale. 
 
 In re Estate of Lawlor, 2 N. S. D., 153. 
 
 GUARDIAN. 
 
 1. or lanattc— Suit by, in his own name 
 
 —In an action by and in the name of the guar- 
 dian of a lunatic, for a debt due the lunatic, the 
 defendant did not go into his defence, contending 
 that the action was wrongly brought, and judg- 
 ment in the County Court was given for plain- 
 tiff. On appeal, the Court allowed plaintiff to 
 amend, and defendant contending that there 
 was a defence on the merits, a new trial was 
 ordered, but without costs, first, because the new 
 trial was an indulgence to defendant, as the 
 Court might in such a case give judgment for the 
 plaintiff on the amended record ; second, be- 
 cause, had the defendant entered on his defence 
 in the Court below, a new trial would possibly 
 have been rendered unnecessary by his success. 
 Seaman v. Porter, 4 R. & G., 292 & 495. 
 
 2. Petition — How signed by guardian- 
 No substantial distinction between the petition 
 of A by her guardian B, and that of B as guar- 
 dian of A. 
 
 McXiel, Guardian, v. McXiel, Cochran, 32. 
 
 3. Reai estate of InHints— Power of Court 
 
 over— Effect on such power of appointment of 
 guardian— The power of the Equity Court over 
 the real estate of infants in this Province is 
 more extensive tiian any such power which has 
 ever l)een exercised in England. 
 
 If it be shown that by the disposal of the 
 property the interest of the infant will be sub- 
 stantially promoted on account of any portion 
 of tlie property being exposed to waste or dilap- 
 idation, or being wholly unproductive, or for 
 any other reasonable cause, the Court has a dis- 
 cretionary power to order a sale. 
 
 Where the whole property yielded an income 
 of only 8100 and the infants' undivided share, 
 
 HABEAS CORPUS. 
 
 1. AffldaTlts in reply not allowed — Affl- 
 
 davits in reply not allowed to be produced, on 
 the ground that an application for habeas corpiis 
 could be renewed of right to any Judge. 
 
 In re James William Black. Unreported, 
 
 2. Application for discharge- Direction of 
 
 writ — Application was made to the Judge of the 
 County Court for the discharge of an msolvent 
 j debtor under Chapter 118 of the Revised Statutes 
 I (5th Series). The application was refused on the 
 I ground that the debtor had been guilty of fraud 
 in respect of delay of payment and the disposal 
 of his property, and the learned Judge made an 
 order directing that he be confined in jail for a 
 period of six months. This order was made on 
 Saturday, the 23rd day of January, 1886, but 
 was inadvertently dated as of the 24th (Sunday). 
 The mistake being discovered, the learned Judge, 
 on Monday, the 25th, made a further order, con- 
 firming the first order, and directing that the 
 debtor be confined in jail for a period of six 
 months from the 23rd of January for such fraud. 
 Application was thereupon made to the Court 
 for the discharge of the debtor under a writ of 
 habeas corptis, on the ground that he was illegally 
 detainer!, the imprisonment under the execution 
 having determined when the orders were made 
 by the County Court Judge in respect to the 
 imprisonment for fraud, and such orders being 
 bad. 
 
 Held, that the prisoner was not entitled to 
 the relief sought, the execution under which he 
 was imprisoned continuing in force until he was 
 released by the creditor, or until the making of 
 a valid order for his discharge under the Act, or 
 for his further imprisonment for fraud. 
 He/d, also, that the writ of habeas corpus 
 
615 
 
 HALIFAX. CITY OF. 
 
 GIC 
 
 ahoiild luive l)een direuted to the Slicritrmid nut 
 to tlu; .Iiiilor. 
 
 \Veiitlierl)t', .1., iliiimfiiKj. 
 
 Ill rv (•'. It. Johwtoii, 7 K. & (!., ')! ; 
 7C. L. T., !HI. 
 On (i/>j>ca/ to till Siiiirimi' Court of Canada, 
 
 Hild, tliiit the iippoiil inu»t he diHinisHud with- 
 out costs. 
 
 Xo costs are given in halnax cor/iH.1 appeals, as 
 a general rule, mfavorem /ilnrtalis. I 
 
 //( ri' (/, /;. Johnson, ..'Dth F'h. ISSH, | 
 
 fas. Digest, :W(> dt 540. 
 
 3. Conviction for violation of license laws 
 
 — Jfriliiai C'ory/ds motion for ^Judgment dis- 
 missing not appealable when prisoner ia dis- 
 charged before appeal— Costs — Tiie prisoner, 
 Simon Kraser, hail l>een convicted liefore F. A. 
 Laurence, Stipendiary Magistrate for the Town 
 of Truro, of violating the license laws in fi.'rce in 
 the town, and was lined .'?40 and costs as for a 
 third oB'ence. Kxecution was issued in the form 
 given in 4th R. S., c. 7.5, under which Eraser 
 M'as cojninittod to jail. While there he was 
 convicted of a fourth oH'ence and tineil .■?>«» and 
 costs, and was detained under an execution in 
 the same form. The matter came l)eforc the 
 Sujireme Court of Nova Scotia on a motion to 
 make alKSolute a rule «(vi granted liy Weatherlie, 
 J., under 4th K. S., c. 99, "Of Securing tlie 
 Liberty of the Subject." The rule was dis- 
 charged. 
 
 In rv Simon Fraser, 1 R. & (i., :i7i4. 
 
 On appeal to the. Supreme Court of Canada, 
 
 It appeared that before the institution of the 
 appeal, the time for which the appellant had 
 been imprisoned luul expired and he was at 
 large. 
 
 On motion to dismiss the appeal for want of 
 jurisdiction, 
 
 //i/d, that an appeal will not lie in any case 
 of proceedings for or uiwii a w rit of halnax 
 corpus when at the time of bringing the appeal 
 the appellant is at large. 
 
 Appeal dismissed. The question of costs was 
 reserved and subsequently the Court ordered 
 that the respondent should be allowed his gen- 
 eral costs of the appeal. 
 
 Frauhr v. Tupper, .'M June, ISSO, 
 Cas. Digest, 240. 
 
 4. Discharge of party re-arrested after ' 
 
 release — Certiorari to remove a conviction for 
 violation of the license laws in the city of Hali- 
 fax quashed, on the ground that a l>ond had 
 been filed instead of )>uil. 
 
 The defendant having been released on the 
 issue of the certiorari, and re-arrested on the 
 
 oi'iginal warrant after the rirtiorari was ((uashed, 
 the Court granteil a rule in the nature of a halif(u 
 ror/iu-i under the statute "Of .Securing the Lili. 
 erty of tiic Subject," on terms that defendant 
 should bring no action. 
 'J'hf City of llalij'ax v. Uakt, 2 R. i''. o., 142. 
 
 5. Discharge of prisoner under writ of, 
 
 where proceedings irregular — The Court 
 n\ade absolute a rule iiiii for a habeax corimt 
 where it ai)peared that the prisoner had lieeu 
 arrested on an execution for penalties under tlic 
 License Laws, tiie .Justices having pioceeiled 
 with the cause in the absence of defeuiliint, 
 without an athdavit of the service of summons, 
 althougli on the hearing of the rule nisi it was 
 made to appear that the sunnnons had actually 
 been served. 
 
 In re Donald McKarhern, 1 R. & (i., 3'Jl. 
 
 6. No appeal -Sec. 6 of Cap. 94, 4th K. 8., 
 
 giving an appeal from the decisions and judg- 
 ments of a Judge at Chambers, does not apply 
 to an order in the nature of a writ of hahen-i 
 rorim-s granted by a .Judge under sec. .3 of cap. 
 99, R. S., "Of Securing the Liberty of the 
 
 Subject." 
 
 //( re A. L. MrKeirJi, 2 R. & C, 4H1. 
 
 !. Sentence Dorchester one year -A mend. 
 
 ment of — A prisoner was convicted of larceny 
 and sentenced to one year's imprisonment in 
 Dorchester Penitentiary. The Warden refused 
 to receive him on the ground that the sliortest 
 period for which prisoners could be sentenced 
 to or received at the ])enitentiary was two yef.rs. 
 I'ri.soner was then taken to the county jail. On 
 a motion for haheas corpu.s, the jailor, in his 
 return, set out the conviction for larceny and 
 also returned that the prisoner was detained 
 under a warrant of a Justice for attempting to 
 escape by tearing up tiie floor of his cell. The 
 warrant annexed to the return was under the 
 hand of two Justices. The Court refused to 
 discharge him, and decided that he should he 
 sentenced to iniprisonmcnt in the common jail 
 for one year, inclusive of the period for which 
 he had already been <letained. 
 
 In re Wallace Rice, 2 R. & (J., 77 ; 
 1 C. L. T., 555. 
 
 HALIFAX, CITT OF. 
 1. Action against — Notice of action 
 
 against City, given by plaintiff's attorney, iield 
 
617 
 
 HALIFAX, CITY OF. 
 
 618 
 
 siiffioii'iit and miobjectionublt', idthnugh in the 
 
 lilttrnativu as to amends l)eing paid, 
 
 nalhr V. The Clly of II nl if ax, 4 R. & C;., 371. 
 
 AHirined on appeal to tlie Supreme Court of 
 
 CKiiada, 
 
 Cas. Digest, 98. 
 
 2. Artlon against— Notice of— Where plain- 
 
 tirt' in an action against the City of Halifax, for 
 compensation for injuries received through negli- 
 gi'iicc of the City's contractors, failed to give any 
 proof of notice of action heyond a minute of the 
 City Council, stating that a letter from plain- 
 tifTs solicitor, claiming damages, had Insen read 
 lieforu the Council, and a notice to defendants to 
 pnicluce the letter not complied with, 
 
 Hi Id, that the plaintiff could not succeed for 
 want of sufficient notice of action under section 
 •JTti of the City Charter. 
 Robinson V. Tht City of Halifax, 2 R. & C. , .375. 
 
 ft particular amount, of which he hrts had notice, 
 and that the amount is due and unpaid. The 
 certificate must go further, and show that the 
 amount has not been collected and paid over 
 under the warrant of distress provided for by 
 section 'MtQ. 
 Th> City of Halifax v. liowtr, 1 N. S. 1)., (59. 
 
 6. Assessment of vessels not registered in 
 
 Halifax — Under the laws in force in relation to 
 the City of Halifax, December, 1877, 
 
 H(l(l, that vessels, the owner whereof resided 
 and did business in the City, but which were not 
 registered in Halifax and had never been in the 
 port of Halifax, were not assessable for city 
 rates. 
 
 Kmvy v. Thr City of Halifax, 1 R. & C, .S9. 
 
 Artirmed on appeal to the Supreme (^'ourt of 
 Canada. 
 Tht City of Halifax v. Ktnny, 3 S. C. R., 497. 
 
 .1. Action for breaking soil of street in 
 
 City— By whom brought— Two actions were 
 liroiigiit in the lower court, for breaking the 
 soil of a street in Halifax without permission, 
 one action by the City of Halifax, the other by 
 the Comniissioncr of Streets, against one Quinn, 
 who had contracted with the defendant company 
 to crei't telegraph posts. Judgments for the 
 plaintiff in both actions confirmed on appeal. 
 Thi City of Halifax v. Xora Scotia EUctric 
 Tilii/rnph Co., Cochran, 83. 
 
 4. Alderman - Expulsion of, ft'om City 
 
 Council —Conviction for drunkenness, &c. — 
 Quo warranto — Where a party elected as alder- 
 man in October, 1862, had been several times 
 convicted of drunkenness, assaults and disor lerly 
 ooniUu't, between the years l8r)Uand 1862, but 
 there was no such conviction for six months 
 previous to his election, and no evidence that 
 he was a connnon drunkard, 
 
 //'/(/, that the City Council had no power to 
 declare his election a nullity, and to direct that 
 another alderman should be elected in his place. 
 
 A corjM)ration has no power to remove a duly 
 elected nienil)er of its own lK)dy for crimes com- 
 mitted previous to his electi(m. 
 
 Practice with regard to proceedings on appli- 
 cation for a quo warranto information discussed. 
 Su QIO WARRANTO. 
 
 In re. Thomax Spenee, 1 Old., 3.33. 
 
 •'>. Assessment — Certificate as to — Con- 
 viction— The requisites of section 370, of the 
 City Act, chapter 81, Acts 1864, are not suffi- 
 ciently complied with by a certificate stating 
 merely that the defendant has been assessed in 
 
 7. Building Act-Proceedings for viola- 
 tion of— The application to a Judge under 2.5 
 Vict., chap. 27, sec. U, now section O.'i.') of the 
 City Charter (27 Vict., ch. 81), should be by 
 inforniatiim or complaint under oath, stating 
 precisely and clearly the several grounds of 
 complaint, and the proceedings thereunder 
 should be similar to those under Rev. Statutes, 
 chap. 70, sec. r^Q. 
 
 No writ of summons is recjuired, and the in- 
 formation may be sworn to before a Commis- 
 sioner. 
 
 The City of Halifax v. Mc Leant, 1 Old., 689. 
 
 8. Building Act — Practice on proceed- 
 ings for violation of— Parties proceeded against 
 under the provisions of section 655, of tlie 
 City laws for the infringement of the regula- 
 ti(ms relating to buildings, are entitled to an 
 information as in the case of City of Halifax 
 V. McLfarn, 1 Old., 689, if they reijuire it, when 
 if the Court declares the structure to be a 
 nuisance, the Council may order its removal, and 
 it is not necessary to resort in the first place to 
 the Police Court under section 654. 
 
 The proceedings were ordered to be anjcndcd 
 by filing an information as against Seeton the 
 owner, omitting Brookfield the contractor. Costs 
 as to Brookfield reserved. 
 
 In rt City of Halifax and Seeton et al. , 
 
 3R. 4C., .365. 
 
 9. B}'-law— Power ot Council to make— 
 
 Ninety days and three months are not equi- 
 valent terms — The statute enabling the City 
 Council to make a by-law provides that im- 
 prisonment for ninety days may be annexed to 
 
619 
 
 HALIFAX, CITY OF. 
 
 620 
 
 the breach thereof. The by-hiw against Sunday 
 trading provided for an imprisonment of three 
 months. 
 
 He.hl, that the by-law was void, and a con- 
 viction thereunder was quashed accordingly. 
 
 The. City of Halifax v. C/iwen, 6 R. & O., 521 ; 
 
 OC. L. T.,54'2. 
 
 19. City Charter— Inspecting and weigh- 
 
 ing of flour — Chapter 81, of the Nova Scotia 
 Acts of 1864 (the Halifax City Charter), sec- 
 tions 450, 451 and 452, contained provisions 
 imposing certain tines and penalties on "every 
 person sending from or offering for sale, witliin 
 the City of Halifax, any barrel or half barrel of i 
 flour or meal deficient in weight, or without its 
 having been branded." 
 
 These sections were .sub,stantially incorporated 
 in Chapter 85 of tlie Revised Statutes (.'kd 
 series), by which provisions were made for the 
 inspection and weighing of flour and meal in the 
 Province generally. 
 
 Ildd, that the sections of the City Charter 
 were covered and repealed by the Dominion Acts ! 
 of IST.S, which contained provisions for the 
 weighing and liranding of flour and meal, anil 
 repeiiled "all Acts or parts of Acts or of any 
 charter or law now in force in tlie Dominion of 
 Canaila, or in any Province tiiereof, jH'oviding 
 for tiic inspection or tiie appointment of inspec- 
 tors of any of the articles the insj)ection of 
 whicl'. is hereby provided for." 
 
 'J'he City of Halifax v. Cuuninijham et a/., 
 
 7 R. & G., 14. 
 
 11. City Courts, Jurisdiction of-Conilc- 
 
 tion for ofifence different from that charged in 
 summons— Prosecution for keeping junk store 
 wrongly instituted in Police Court at the 
 suit of the City — An action was brought against 
 the defendant in the Police Court at the suit of 
 the City of Halifax, for an alleged violation of a 
 City ordinance in keeping a marine and junk 
 store without license therefor, and after trial 
 the defendant was convicted of keeping a rag 
 and junk shop without license. 
 
 Held, />€r Weatherbc and Rigby, JJ., that 
 the conviction was bad in that the offence for 
 which the defendant was convicted was different 
 from that charged in tlic summons. 
 
 Per Rigby, J. , that the criminal side of the 
 City Court had jurisdiction over the subject 
 matter and could afford complete redress, and 
 that the prosecution was wrongly instituted in 
 the Police Court at the suit of the City. 
 
 The City of Halifax v. O'Connor, 
 
 3 R. & G., 190, 
 
 12. Contract with City - Resolution of 
 
 City Council— Plaintiff offered to the City a site 
 on Lockman .Street for a City liall, to bo erected 
 under Act of 1874, cap. li't, for §35,000, payal)le 
 in City debentures. The City Council resolved 
 to accept the offer, and tliat the Mayor be 
 authorized " to have debentures issued" for the 
 purchase of the site, and that, on the necessary 
 documents being completed, such delientures be 
 handed over to plaintiff, a copy of the resolution 
 being enclosed to the plaintiff by the City Clerii, 
 but without any instructions or directions to tiiut 
 effect from the Mayor or City Council. At tlio 
 time the offer was made by the plaintiff tlic title 
 to the land referred to was not in him, and there 
 were mortgages over it to a considerable amount, 
 but plaintiff said in his evidence that he liud 
 made arrangements so as to be ready to have the 
 property transferred when the Mayor slioulil 
 perform his duty, and lie tendered to the Mayoi 
 an unexecuted deed of the lots which were to 
 form tlie site, and recjuired him to carry out the 
 resolution of the Council. Defendant rofu.sed to 
 sign or issue the debentures, and plaintitVprayeil 
 for a writ of mandamus to compel him to do so. 
 //«/'/, that the resolution of the Council did 
 not constitute a contract witii the defendant, 
 and that in order to tiie validity of such contract 
 a document under the seal of the corporation 
 was necessary ; that even had the agrei.'nient 
 been formal and binding, plaintiff had not a right 
 to require the Mayor to carry out the resolution 
 of the Council until he had tirst secured a title 
 to tiie lands to enable him to perform his part of 
 the agreement. 
 
 Jtnnelt v. Sinclair, 1 R. & C, ;?92. 
 
 I 13. Estoppel — Pleading — In an action 
 
 j against the City for removing plaintiff's steps, 
 ] it appeared in evidence that when tiie City 
 I engineer called on plaintiff in reference to the 
 j alleged encroachment on the street, plaintiff 
 ! asked the engineer to give him the line of the 
 '. street, whereupon the engineer marked it on 
 j the corner of the steps with a pencil. Defend- 
 ant's counsel contended that plaintiff was bouud 
 I by this proceeding, under section 270 of the Act 
 I of incorporation, and that not having appealed 
 ; under section 271, he was estopped. 
 
 Held, that the defendant could not take 
 
 advantage of the estoppel, not having pleaded it. 
 
 1 Eimis V. The City of Halifax, 3 R. & G., 321. 
 
 14. Evidence of leave and license— Re> 
 
 jeetion of — The Corporation of Halifax, in 
 making certain street improvements, pulled 
 down plaintiff's p ;h, which projected across 
 
621 
 
 HALIFAX. CITY OF. 
 
 622 
 
 the line of sidewalk, whereupon plaintiff sued 
 (Icfi'iidunt for damages, he being one of the 
 iililermcn under whose direction the iniprovo- 
 iiiuiitH were niude. Defendant pleaded in denial 
 iiuil juatilication. At the trial he sought to 
 iiitrodiiue evidence to show that, prex'ious to 
 tho ])orcli being pulled down, plaintiff had agreed 
 to remove it when requested by the City autiior- 
 itics, or to allow them to remove it theniHelves. 
 I'liiiiitiff objected, ond the Judge rejected the 
 cviduiicc. Verdict for plaintiff and rule to set 
 it aside. 
 
 Ihld, that there Iteing no plea of leave and 
 lioi'iisi', the evidence was properly rejected, and 
 tlie verdict should bo upheld. 
 
 llaijijarty v. Pryor, 3 N. S. D., .358. 
 
 15. Li(|uor License Act-Issue ofllcenses— 
 
 Provisions of Halifax City Charter respecting 
 —Repeal of the General Act— Express enact- 
 ment required to revive — Application for 
 license not recognized by law properly refused 
 —Action for a mandanui.s to compel the Clerk of 
 Licenses for the City of Halifax to sign and issue, 
 ami the Viayor of the City to countersign, a 
 license to the plaintiff to '♦ keep a saloon in the 
 simp or Imilding occupied by him, . . . and 
 to vend therein provisions or victuals, and sup- 
 ply f<)o<l or tobacco, and also to retail intoxi- 
 cating liquors therein conformably to law, until 
 the l.')th March, KSS7." 
 
 TlicCity Charter, Acts 1804, c. 81, ss. 19.3, 194, 
 as iiinended by the Acts of 1867, c. 87, s. 14, 
 authorized the issue in the City of Halifax of 
 three classes of licenses, viz. , tavern, shop, and 
 general licenses. The license applied for by the 
 plaintiff belonged to the latter class. 
 
 l>y the Acts of 1869, c. 2, s. 4, the general 
 License Act of the Province was amended so as 
 t(i prohibit the issue of any other than tavern 
 and shoj) licenses, and by s. 10 the amendment 
 thus made was made applicable to the City of 
 Halifax. By the Acts of 1873, c. 1, providing 
 for the publication of the Revised Statutes (4th 
 Series), all Acts not substantially incorporated 
 therein wore to be continued in force. 
 
 llild, that the amending Act of 1869 not 
 having been substantially incorporated in the 
 Revised IStattites, was not repealed. 
 
 Alio, that even if such Act had been repealed, 
 the clauses of the City Charter under which the 
 plaintiff claimed his license had never been re- 
 vived, and could only be revived by express 
 enactment. 
 
 Alxo, that the license which the plaintiff re- 
 quired to lave issued to him not being of a kind 
 recognized by the law, there was no authority 
 
 for granting it, and the plaintiff consequently 
 could not succeed in his action. 
 
 ImjlU V. Morria e< a/., 7 R. & O., 531 ; 
 8C. L. T.,6.3. 
 
 16. Loekman Street Extension Act-Under 
 
 the City Charter, section '26(>, the City ('ouncil 
 I took possession of certain lands of plaintiff and 
 ! others, for the extension of Loekman .Street, 
 I including a lane in which the adjoining proprio- 
 I tors had a perpetual easement. Appraisers were 
 I appointed who made an award on the 16th 
 ' April, 1869, of the compensation to be \vx\A to 
 I the parties whose lands were taken under that 
 I Act, but plaintiff being dissatisfied remonstrated 
 against the award so far as it affected his pro- 
 I perty. A few days afterwards the plaintiff took 
 I a deed of the fee simple in the lane. On Decem- 
 ' ber 16th, 1869, notice of action was served on 
 the defendant, and on April 4th, 1870, a writ 
 was issued. An Act was afterwards passed on 
 the 18th April, 1870, to facilitate the arrange- 
 ment of disputes in regard to proi)erties taken 
 for the extension, and under that Act the City 
 Council passed a minute, authorizing a fresh 
 appraisement to be made of damages to be paid 
 to the plaintiff " for such lands and buildings as 
 may be necessary to extend or widen Loekman 
 Street," etc. An award was made pursuant 
 to this minute of Council, and plaintiff accepted 
 the amount awarded and gave a receipt for the 
 same. Defendant then pleailed the payment 
 and acceptance of the sum in full satisfaction 
 and discharge of the claim, and recovered a 
 verdict on that plea. 
 
 Held, that the verdict should not be disturbed, 
 as it was not to be assumed that the appraisers 
 had overlooked the subject of the suit in (jues- 
 tion, and that as to the lane, the easement in 
 which had not been injured, but improved by 
 the proceedings of the Commissioners for extend- 
 ing the street, the damages for the fee simple 
 ought to have been, and probably had been, 
 allowed under the first award to the original 
 owner, who had made no objection to that award. 
 Hendry v. The City of Halifax, 
 
 1 R. &C., 146. 
 
 17. Mayor's Court of Hallfnx has exclu- 
 sive jurisdiction in certain cases— When the 
 plaintiff's demand has Ijeen reduced by cash pay- 
 ments below ten pounds in the City of Halifax, 
 the Mayor's Court has exclusive jurisdiction. 
 
 Donovan v. Mahar et at., James, 91. 
 
 18. Minutes of Hallfix Citjr Council — 
 
 Evidence of — An action was brought against 
 the defendant for his share of the ex|)ense of 
 
023 
 
 HALIFAX, CITY OF. 
 
 024 
 
 (•(instructing a newer on Sduth Park Street, and ■liulgniont of the Supreme Court of Novn 
 ii liook wa8 tcntlcroil in (jvideiice as tlie minute Scotia atHrmeil, anil appeal diannHHeil witli coNtH, 
 liook of the City ("oimcil, containing the reHolu- Tht Cihj of Halijax v. Wnlhr^ 
 
 tion authorizing tiie construction of tiie sewer, | ItUh Fihriiary, ISS'i, ("as. Digchi, (is, 
 
 lir.t was rejected. The City Clerk explained as 
 
 to this book that notes were taken of proceed- , jO. XeKllgCnCe-ActlOn OgUlnHt CIVIC CON 
 ings of the Council l.y himself when present, and p„,j^tj^,„__Sg^yi^g of notice on Mayor Non- 
 in his absence by his assistant, and were after- ^^.^ ^^f^^^,, _. judgment in accordance with 
 wards transcribed more fully into the ""uute ^^^jj^^^ of Jury austained^The Halifax City 
 book from the pencil notes taken m the first | Q^^,^,.^^^ ( .^^ts „f 1H()4, cli. 81, sec. 'iTti) provi.lcH 
 instance, and certilied by the Mayor at the „,_^^ ., j;,,^^,j„„ ^,,,^„ ,,^. ^,„„,„,^,,,^,^,, ,^^,.^i,,^, ,l_^^ 
 following meeting of Council. Cj^y _ _ _ till twenty days' notice in wiiting 
 
 //(/,/, that as the resolution in .luestion was ^j^^j, ^ g.^,^,^,, p,,^i„tirt- j,,,,,.^,,, ,, ,„„j^,^. 
 a public otHcial act of the City Council registered j ,^,,,,resst.,l to and served upon the .Mayor of the 
 in the book kept for the purpose, entered by the (^.j^y. ...p,,,^^ ^^j^^^ j,,^ expiration of twenty 
 proper otHcer and authenticated by the signature ,,,^y, f^,,,,, Uie service up.n you of this «„ti,r, 
 of the Mayor, the book shoidd have been received j,^jj ^^.^j^,, ,^^ j,^^^ ^^.j,, ,,^. ,,„„n„,„ee,l j,, ,i„, 
 
 in evidence. j Supreme Court against the City of Halifax, at 
 
 Th, City oflMifnx v. Komam, 1 R. & (i., 26.5. | j,^^ ^^j^ ^j _^,,.^ ().,j j„ ,.^,^,„^.p^ _ _ Amk,'^,, 
 
 for injuries sustained by her in falling over an 
 19. Municipal liability for nuisance in the unprotected embankment on Campbell K„a,l 
 highway - Special damages — Whether City „„.„j,,j ,,y ti,^ f.jty - 
 
 liable for non-repair of streets damaged by ice 
 or snow — Notice of action — Lawful traffic — 
 The principal streets of Halifax were in such a 
 condition from accumulation of ice and snow 
 
 Hild, that the notice was suflicient in all 
 respects. 
 
 Alw, that in the absence of any special iiro- 
 vision in the City Charter for service of ))i()icss 
 
 hardened into irregularities of surface, that the I „p„„ the City, the service upon the Mayor was 
 plaintiff, owner of a line of omnibusses, had his j sufficient. 
 
 vehicles injured and suffered loss of custom.' ^l/.so, that a motion to mmsuit plaintiff ..n tiie 
 The non-reiwir continued during the greater authority of llV/;//iC v. Thi' Midktinl Ihihnuj 
 jMirt of the winter and after full notice to the q^^^ -,i j^ q'^ >j s^ y;^t^ was properly refused. 
 
 City authorities. 
 
 H<l(l, Ist, that the City was liable for plain- 
 tiff's injury ; '2nd, that negligence had been 
 
 AUo, that the negligence of defendant having 
 been clearly established, and the (juestion iif 
 contributory negligence having been left to the 
 
 proved ; .3rd, that the plaintiff was not guilty j,„.y^ „.i,„ f,„„„i ;„ f^vor of tlie plaintitf, tin 
 
 of contributory negligence in not using other 
 streets instead of those complained of ; 4th, that 
 
 Judge presiding was obliged to enter judgment 
 in accordance with the findings, and tlie jncig- 
 
 O'liriin V. Thi-. City of Hnlifix, 
 
 7 R. &(;.,.tfl.S; 
 7C. L. T.,4r.. 
 
 notice of action by plaintiff's attorney was n,e„t g^ e„tg,.ed should not be diaturbed. 
 sufficient and unobjectionable, although in the 
 alternative as to amends being paid. 
 
 Where an individual or corporation is liable 
 to indictment for non-repair, an action will lit 
 at the suit of one who suffers special injury. 
 
 Liability is not, in all cases, to be inferred 
 from enactments placing the highway under 
 defendant's control. The ohltijation must have 
 been iwiposed on or transferred to defendant. 
 
 No distinction exists between nonftyisance 
 and malfeasance, in relation to such liability. 
 
 21. i\egiigence-Clt}' railroad, llabllU} of 
 
 for damages caused by rails— The Halifax City 
 Railroad ComiJfiny was bound by its charter to 
 keep its rails on a level with the roadway. The 
 rails were not so kept and damage having resulted 
 to plaintiffs while using the streets with llieir 
 
 . Hdd, that plaintiffs had a right of action 
 On appeal to the Siqrreme Court of Canada, ! against the company which was not defeated, 
 Htld, 1, Ritchie, C. J., disxtutiiKj, that it was .although the course adopted for avoiding the 
 the duty of the corporation to keep the streets damagemightnotbc the best, provided the efforts 
 in good repair; and, 2, Gwynne, J., dinxeiitinij, to escape injury were earnest and sincere and 
 that the plaintiff was entitled to retain his not grossly inappropriate, 
 verdict, having proved special injury, and the: .<4/^o, that authority given to the City Council 
 damages awarded not being too remote or ; to supervise and direct the repairs of the railroad 
 excessive. | was merely directory, and not of such a chttra(;ter 
 
625 
 
 HALIB^AX, CITY OF. 
 
 626 
 
 iiH to artVot tlie right of lutioii of individiiiilH 
 injuri'tl, directly iigaiimt the c'(ini])iiiiy. Dodd 
 iiiid WilkiiiH, .M., ili'-siiilini/. 
 
 Coii/on it III. V. Thf Clfif linilrond 
 
 Com/xiiij/, '_» X. ><. 1)., 'Jfttt. 
 
 2!2. XrgliKcnrc-Halintx Street Kailway 
 
 Company, Limited — Liability of City for in- 
 jury caused by rails of — Tliu Halifax Street 
 Kailwuy Coinpany was incorporated hy an Act 
 lu.dir wiiich t!ie City corjioration had power to 
 refuse to permit rails to l)e laid or to consent on 
 such ternm as tiiey thought tit to impose. 'I'iiu 
 Company discontinued their operations, leaving 
 the rails in many places protruding aliove the 
 level of the streets, and alioul a year after they 
 had ceased to operate their road the plaintiff's 
 carriage and horses were seriously injured in 
 ;ousc(iuence of one of the rails projecting from 
 the street, tlie wooden sleepers to which it had 
 been liolted heing too much decayed to retain 
 the fastenings. Defendants pleaded that the 
 rails wcie in the exclusive possession of the 
 Railway Company, that the accident had heen 
 caused by the passage of a heavy cannon dis- 
 turbing the rails, shortly j)revious, and that 
 tiu'y had lU) notice of their defective condition. 
 The verdict was for plaintiff. 
 
 Ilihl, that under the justification pleaded it 
 was necessary for the defendants to disclose the 
 permission given to the Company to lay the rails, 
 and that the ((Uestion as to the inmiediatc cause 
 of the accident and the want of notice had heen 
 disposed of ))y the verdict. 
 
 /'(/• Young, C.J. — That the defendant cor- I 
 poration was bound to cover up the rails after 
 the Company had withdrawn from the field, and 
 was liable for the damage resulting from its 
 neglect, 
 
 Adams v. The City of Halifax, 1 R. & (;., .S-44. i 
 
 23. Negligenee in leaving sewer open— 
 
 Liability for— The plaintiff and his wife, while 
 walking along one of the streets of Halifax, fell 
 into an open sewer and sustained injuries, for 
 which they bro\ight an action against the City, 
 and weie awarded damages. The City then ap- 
 plied for a new trial. 
 
 Held, that the City, although not provided by 
 the Legislature with funds for that purpose, 
 was liable for any acts of negligence on the part 
 of their servants or employees in and about the 
 streets. 
 
 Scroxdiy, that the plaintiffs must clearly show 
 that they have not been guilty of negligence 
 themselves. And this not having been done, 
 although the declaration contained averments 
 
 that tlie plaintiffs had employed ordinary cau- 
 tion. A new trial was ordered. 
 
 Ward tt iix. v. Thv City of lln/i/nx, 
 
 ;i\. S.J)., 'J(M. 
 
 24. Xegllgenre In regard to drain — 
 
 Where plaintitf's horse was injured by falling 
 into a deep uncovered ilraiii by the side of a 
 road ill the suburbs of the City, 
 
 Hilil, that the drain being proved to be well 
 constructed, and of a kind (uiuovered) usual ill 
 the suburbs, the City was not liable. 
 
 Mai'kinlay v. Tht- City of Halifax, 
 
 '2R. &C., .S05. 
 
 2.). Negligence - Liability of CItjr for- 
 
 Plaintifl' sustained an injury from earth left on 
 the street by V'., who had obtained permission 
 from P., a public officer (Suiieiiiitendeiit of 
 Streets) in the eniiiloy of defendants, to )>laco 
 th'.j earth there, but not to leave it there after 
 ten o'clock at night. The earth was left on the 
 street all night, but the accident occurred before 
 ten o'ch)ck. It did not appear that the defend- 
 ants were aware of the earth being so deposited 
 or left. 
 
 //»/'/, that as the defendants were a public 
 
 I body, discharging a jmblic duty gratuitously, 
 
 i and had no share or participation in the wrong 
 
 complained of, it having been done without 
 
 , their consent or knowledge, they were not liable, 
 
 and that the action could not be maintained. 
 
 EntiH V. Thr City of Halifax, 1 Old., 111. 
 
 ! '26. Nuisance -Removal of — Defendant 
 
 I removed phiiiititf's porch as a nuisance, and 
 justified as being a ccmimittee of the City Coun- 
 cil duly authorized to remove anything which 
 was a nuisance, encroachment or annoyance on 
 ; any of the streets. The evidence showed that the 
 porch, which encroached upon the public street 
 several feet, had been in existence, just as it 
 ' was when pulled down, for a period of sixty 
 years. There was no evidence as to the origin 
 or iledication of the street, and it did not appear 
 whether the porch or the street were the more 
 ancient. 
 
 Held, ill the absence of evidence as to the 
 original laying out of the street, its dedication 
 to the public should be taken as subject U> the 
 encroachment in question, and that the verdict 
 for defendants should be set aside. 
 
 Haijarty v. Prycyr et al., 2 N. S. D., 532. 
 
 27. Provincial Legislature — Power to 
 
 authorize the imposition of license fees on 
 insurance companies— Construction of British 
 North America Act, s. 92, sub. sec. 9— The 
 
C27 
 
 HALIFAX. CITY OF. 
 
 6S8 
 
 Provincial Acts of 1883, c. 28, «. 'J3, proviiled 
 tliat in tlio cliau of inHiirancu ci)ni|Nkniu)i doing 
 buMinuHH in tho City of Halifax, tlio jiroporty of 
 the ooinpanioH within tliu ''ty hIiouIcI he liahle 
 to uHMOHHniunt in the name way aH tlie jiroperty 
 of other ratepayers, anil aUo, that every «ncli 
 company Hhoiilit, in addition tliereto, pay an 
 annual license fee, and that wliere any uoinpany 
 WM cngiig'.'d in n\ore tiian one luanoh of hiiMi 
 neHH, it Hhoiild ])ay a licenHe fee for each branch 
 of its liUHineMM. 
 
 Hild, tliut tho right to empower the impo- 
 sition of Much license fees was witiiin the powers 
 of the Provincial Legislature, under section 92, 
 suli-section 9, of the British Nortii America Act. 
 The City of Halijax \. Thf Wii/irn Aiiitmiin 
 Comjiaiiy, K. & (i., 387. 
 
 28. Nuisance in the higliway -Special 
 
 damages— Whether City liable for non-repair 
 of street damaged by ice and snow — Notice of 
 action— Lawful traffic — The principal streets 
 of Halifax were in such a condition from accu- 
 mulation of ice and snow hardened into irrcg- 
 uhirities of surface, tliat tiie ))laintitr, owner of 
 a line of omni))Usses, had ids veiiiclcs injured 
 and suffered loss of custom. The non-repair 
 continue<l most of the winter and after full 
 notice to the City authorities. 
 
 Ile/il, Ist, that the City was liable for plain- 
 tifFs injuries ; '2nd, that negligence had been 
 proved ; 3rd, that plaintiff was not guilty of 
 contributory negligence in not using other 
 streets instead of those complained of ; 4th, that 
 notice of action by plaintiflPs attorney was suffi- 
 cient and unobjectionable, although in the 
 alternative as to amends being paid. Where an 
 individual or corporation is lialile to indictment 
 for non-repair, an action will lie at the suit of 
 one who suiurs special injury. Liability is not, 
 in all cases, to bo inferred from enactments 
 placing the highway under defendant's control. 
 The obligation must have been imposed on or 
 transferred to defendant. 
 
 No distinction exists between nonfeasance 
 and malfeasance in relation to such liability. 
 IValker v. The City of Halifax, 4 R. & G., 37 L 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, 1st, Ritchie, C. J., dinnentinij, that it 
 was the duty of the corporation to keep the 
 streets in good repairs ; and 2nd, Gwynne, J. , 
 diKnetitinrf, that the plaintiff was entitled to 
 retain his venlict, having proved special injury, 
 and the damages awarded not being too remote 
 or excessive. 
 
 The City of Halifax v. Walker, 16th Feb., 1885, 
 
 Gas. Digest, 98. 
 
 W. Recorder -Costa wbere City success. 
 
 fUl — The City ordinances authorized the Council 
 to apiM>int a Recorder at a salary in lien of ull 
 fees for services, and maile it his duty to act for 
 the City as counsel and attorney. 
 
 Hild, that notwithstanding the Recorder was 
 a salaried officer and could not have taxed cost* 
 against the City, oslMitween attorney and clii^nt, 
 the plaintiffs Mere entitled in a suit in which tht'y 
 had succeeded to his costs as attorney againut 
 the defendant. 
 
 The City of Halifax v. liomam, 2 R. & C., 'J71 ; 
 
 1 C. L. T., 708. 
 
 ! 30. Stipendiary Magistrate — Conviction 
 
 I by — The defendant having been convicted of a 
 violation of tho charter of the City of Halifiix, 
 Acts of lS(i4, chapter 81, section 227, by kcciiiiig 
 a disorderly house, was adjudged to pay tiie sum 
 of §40, aiul " if tlie said sum be not f-,)rtli\vitli 
 paiil, to be imprisoned in the City prison for the 
 
 space of ninety days." 
 
 Ill Id, tliat the alternative piniishmont imposed 
 was authorized by scctiim 13!) of the Act. 
 
 AUo, tiiat under the Acts of 1882, ciiajjU'r 2.'), 
 i section Ift, the penalty Mas clearly recoverable iii 
 the name of the City of Halifax before tho 
 Stipendiary Magistrate at tiie police court. 
 
 Th< City of Halifax v. liroim, R. & (J., Hi.l 
 i 
 
 31. Stipendiary Masistrate of City - 
 
 Certiorari of conviction made by — Where con- 
 ' victions by the Stipendiary Magistrate of the 
 , City of Halifax, under section 140 of the city 
 charter, aie brought up by certiorari, the court 
 can review any matter of law, but cannot inter- 
 fere M-ith the decision in respect to the facts. 
 
 t^ueen v. Lery et al., 3 R. & C., 51. 
 
 32. Street railway -Mandamus to compel 
 
 laying of rails even with the surface — The 
 I defendant company obtained an Act enabling it 
 , to maintain a line of horse cars in the City, l)Ut 
 : requiring it to provide rails of the most approved 
 ' pattern, and lay them even with the surface of 
 the streets, so as not to interfere with the pas- 
 sage of vehicles, and to keep the roadMay in 
 repair within the track and three feet on each 
 side. Defendants having ceased to operote the 
 line, the roads fell out of repair, and the rails 
 protruded. After the commencement of this 
 suit, which was for a mandamus to compel the 
 defendants to have the rails laid even witli the 
 surface, and to put the roads in repair as re- 
 quired by tho Act, the City authorities in many 
 instances covered the streets, on which the rails 
 were laid, with stones. 
 Held, that the City had a right to proceed by 
 
629 
 
 HALIFAX, CITY OF. 
 
 630 
 
 inanilitinuM, ami wan tint i)l)ligo<l to roanrt to an 
 in<li<'tiiiont of tho nuiKuiico, or to prncuutliii^H to 
 fine the (lofmuluiitH umler llio Act of 1870, c. W), 
 for violation of thu proviHion* of their Act of 
 Iiu'orporation, nuitluir of tliunu cniirHCH proHcnt- 
 iii^' II rcini'ily aH liuiuticial aH tliu proccuilinj; liy 
 niiiiiilainuN, Init timt tho maiidaiiuiH tnUHt hu | 
 liinitcil in itit opc'ratioti to thoao NtrxutH on wliich 
 til*' riiilway had not ixjun covered ItytliuCity 
 aiithoriticM, as thu action of tlio City in tliiM 
 ri'spt'c't luiil inipoNcd an iinrcusonalilo burden ' 
 upon thu company in removing the ntoncH. 
 The City of Halifax v. The City Unilimy Co., i 
 
 R. K. I)., ;{i». ; 
 
 33. Sewers In, - The Provincial Act of 
 
 IH'li, c. 14, 8. 1, omi)owured the Hoard of Com- 
 misfinncrs of City Works, under tlie mmctioii of 
 till' City Council, to order tlio construction of a 
 si'wiT along liny street, without the re(|uisition 
 of owners of property along the street, and the 
 Acts of 1H74, c. ',V2, 8. I, i)rovided that upon the 
 jH'titioii of half the owners of property on any 
 street, and the deposit with the City Treiuurer 
 of certain amounts chargeiilde under the Act, the 
 City Council should order a sewer to i>o con. 
 jitiucted unless for sutticient reasons to the con- 
 tiMiy. The Act of 1S74 further repealed a sec- , 
 tiiiii of the Act of 1S7.'1 and snhstituted therefor 
 a section, pointing out the manner in wliicii the 
 cost of construction should he borne and provid- 
 ing that all moneys chargcalile to property 
 owners under that Act 8hnul(l become due from 
 the order or resolution to construct a new 
 sewer, whether such sewer had been petitioned 
 for, or ordered by the Council for the benetit of 
 the City without petition. The owners of pro- 
 perty on South Park Street applied by petition ' 
 for 11 sewer from Victoria Road along Sf)Uth 
 Park Street to Inglis Street, 480 lineal feet. 
 Q'he City Engineer reported upon the petition ; 
 that, in order to provide a proper outlet for the 
 proposed sewer, it wouM ]ni necessary to build 
 850 lineal feet down Inglis Street ; upon which 
 • the Council passed a resolution, " that the peti- 
 tion of the ratepayers in South Park Street and 
 Inglis Street for the construction of a sewer 
 OH mid slreeJ.i, together with the report of the 
 Engineer thereon, be received and adopted, and 
 that the Board of Works be recjuested to have 
 such sewer constructed." The sewer was con- 
 structed, and a suit brought against defendant, 
 who lived on Inglis Street, for his portion of the 
 costs of construction on Inglis Street. 
 
 Md, that the Council had power to order the 
 construction of a sewer on Inglis Street without 
 any petition, to the cost of which property 
 owners on Inglis Street were bound to contribute, 
 
 and that tho ro*olution might be regarded, Hrst, 
 as authorising the construi'tion of a sewer on 
 South I'art Street, in compliance with the peti- 
 tion of tho property owner* on that street, and 
 secondly, as an order emanating from tho 
 Council itself for tlio construction of a sower on 
 Inglis Street, irre8)>ective of any petition. 
 The City of Halijax v. Sf.iloii, W R. & ('., '-'45. 
 
 34. Sewen In (he,— The Sewerage Act of 
 
 IH7.1, cap. 14, provided that wherever two- 
 thirds of the ratepayers in any street, &c,, 
 should petition for a sewer tho same should be 
 constructeil, and that one-fourth of the cost 
 shoulil be paid by a special assessment on the 
 owners of real estate, &c., such assessment to 
 be immediately payable on the completicui of 
 the sewer. Tho Act rif 1H74, passed May 7th, 
 repealed these provisions, and jirovided that 
 where one-half of tho owners of property on any 
 street, &c., petitioned and deposited the amounts 
 chargeable according to the Act, the Council 
 shoidd order a drain to Ik; constructed. Pre- 
 liminary steps having boon taken for the uon- 
 struction of a sewer past defendant's property, 
 on April 'i-Jml, 1S74, the report of the engineer 
 was accepted, and the Hoard of Works author- 
 i/cd to carry it into effect, but the teiuler and 
 contract bore date respectively June I'lth, and 
 .ftily 'Jnd, 1H74. Tho suit was instituted under 
 the Act of 1873. 
 
 Ilild, atHrming the decision of the County 
 Court, that there were no aci|uired rights on 
 the part of the City against the defendant under 
 the Act of 1873, and that the Act of 1873 hav- 
 ing been repealed, the plaintiff must be non- 
 suited. 
 The, City of Halifax v. Edwardn, 3 R. & C, KM. 
 
 35. Taxes, claim of City for-The City of 
 
 Halifax has no preferential claim for taxes against 
 the assignee under the Insolvent Act of 1875. 
 In re Frederick II. A". Marter, 
 
 3R. &G.,4P2. 
 
 36. Taxes, lien for — The City of HallHix 
 
 has no lion upon real estate for taxes, sectioti 
 342, of chapter 81, of the Acts of 1864, having 
 reference only to personal property. 
 
 Almon el al. v. Hutt, R. E. 1)., 426. 
 
 37. Taxes, lien for— Defendants' testator 
 
 mortgaged certain property to plaintiff, who 
 afterwards foreclosed, and the property was 
 offered for sale April 10th, 1876, and bid in by 
 John McDonald, who paid a deposit of 1^300, but 
 failed to complete the purchase. The property 
 was again offered for sale Novenilier 19th, 1877, 
 
031 
 
 nitmwAY. 
 
 {>'.]i 
 
 and ri>iili/(<il II Hiini wliii'li, with tli(> ilciHii'it {mid I nil it IhuhI wli(>ri'l>y liu linuinl liiiiiHclf iiiul liU 
 
 (III the tii'Ht Muli', MiitiMticd lilt' pluiiititr'M nmrt- lii'ii'H fur t lie nmiiitviiiiiicu, among otIierN, ii( tho 
 
 t;»i(*' <'"<l l*''t Ik Mui'idiiN of :*:<'.>'.'. VHI. LJ|i<iii iIiIh pluintiT. 
 
 HUi'|iliiN li claiiii wuM timdi' uiiili'i' H. S. cap. '.'I, Jftlil, tliiit the ri'iniiKni law {irinuiplu iiiidur 
 
 Hfi'. N|, for tiixi'H due liy tcHtiiior fur |H74-r>-(l". wliicli tin- lu'ir, liaviii>{ imm'ts from IiIm aiicfHtur, 
 
 Mi'lhiimld, who liitd did in the proju-rty iit tin- coiild lie made lialiltMni Miich a lioii<t, waKi'iitinly 
 
 hi-Nl Mtlt', lii'iil a m'cniid mortga(,'i' upon it to inapplii'iilik' to tlii^ position in wliioli tliu Mtatule 
 
 more than tin- amount ri'inaiiiinfj; in t)iu MhiTilfH of diNtriimtioiiH (iliui'd iiiin in thiH provincf ; that 
 liaiiclM, ' thi' Itoiid, aitlioiigli iiainiii); tliu hi'ir, waM imi a 
 
 //</'/, tiiat thi! Htatiltc wiiM not applicahjt' to ohargv on leal CMtatc, and tiiat thu actiun could 
 
 till' rant', iiM the Mali' rt'ft'rri'd to in thf tirxt hraiifh not lit' MiiNtaini'd. 
 
 of tlio Hi'otion wan a wall' hy thf pormpii ouing Mrl.illaii v. AfrLil/nn, 1 l{. fii't., S(». 
 tli«' lati's at the time of the nuIc, whi'i-eaH tlii' 
 
 ti'Htator had eonvcyt'd the property i.y the j. WIdow not Included In word liclrn- 
 
 inortKaneH lieforo the ratuH had hecoino duo, Testator'n brother included - A toxtatoi Ue- 
 
 and the property had not l.eeii taken under any ,,,„.jithed a certain hiiiii of money to his wife, 
 
 "proieHH of law" within the meaning of the wjiidi he Htated lie Hupposed to be one-third of 
 wordv ill the latter part of the Heotioii. 
 
 H/iiilc V. Mui-rny it (tl., K. K. l).,;ni. 
 
 IIAKBOK KEOl'lATIONS - 
 Violation of- 
 
 Su- SHIPPING. 
 
 the worth of \m property after the payment of 
 liirt delitx and iieieNHary expenneH. |{y huIinu- 
 (jiieiit clauHesi he devised a lot of lainl to one of 
 hia ehildren and be<|Ucatliod Hpeeitie huiiih to 
 •ilhei'H of lii» children, and to hin brother, these 
 Slims amounting in the whole, together with 
 the value of the lot of land, to the leliminiiig 
 two-thirds of the eHtimated value of his property. 
 In a further clauHe he said ;— " If after l)ayiiig 
 my debts and necessary expenses, there should 
 be a greater muiii than 1 have counted on or con- 
 veyed, my wife, with each and every of the 
 heirs, shall iiarticijmte in or receive of said sum 
 Fee Illegally Charged for license -Recover}' in the same projiortion as I have already idl..tted 
 of— A pedlar was informed that he would not lie j to them ; and if there should not be a sullicicut 
 allowed to sell oil in the Town of Uiirtmortli I g„ni to pay the sums conveyed or allotted to 
 without a license, and, rather than stop his ! each heir, each and every heir shall sustain » 
 business or contest the right, he jMiid the fee. ' i„8h in [iroportion to the sum already allotted to 
 The County Court Judge held that the money i them.' 
 
 having been jmid voluntnrily, could not be re- j The estate yielded a much less sum than was 
 covered. estimated by testator. 
 
 Hilil, reversing tliis judgment, that the money Hdil, that the widow was not included in the 
 could be recovered back under the count for word " heirs " and that therefore her legacy 
 
 HAWKERS AND PEDLARS. 
 
 money had and received, 
 
 Hancock v. The Town of Dartmouth, 
 
 2R. &(J., 129. 
 
 HEALTH. 
 
 Members of Board of Health are public 
 
 agents not individually liable for contract 
 made on behalf of public— 
 
 See CONTRACT, 61. 
 
 HEIR. 
 
 1. Liability or, on bond of ancestor— An 
 
 action was brought against the heir of an obligor 
 
 should not abate ; that the testator's brother 
 was so included ; and that after the payment in 
 full of the specific legacy to the widow, all the 
 other legacies should abate proportionally. 
 
 In ft KxlHte of Woodworth, 1 Old., 101. 
 
 HIGH SEAS- 
 Offence committed on— 
 
 See CRIMINAL LAW, 25. 
 
 HIGHWAT- 
 See WAT. 
 
«]:):i 
 
 HOSPITAL 
 
 an* 
 
 IIIKINU. 
 ronlrartor DhmlMalormrnlalNrnnnt 
 
 Niitii'c riaiiilitV liiiril with ili't'cuiliiiil us lit'inl 
 j{uiil('m'i', rt'('i'iviii|;{ h iritain Huliiry pri' yciiriiinl 
 u per triitikgc (III tliu fiuit of tliu gni|i(>ry, ami 
 lit llic tiiiir iif tlit> liii'iiitj waN ill Dociipation of u 
 
 lllll.lll llOllHC nil till' I'Nllltl'. A fl'lli ".■ Ht'lVllIlt llf 
 
 tlic iiliiiiilitl' wiiH oiiliTfil til n" •" ''' K''"l"'''y '" 
 ;;i't M)im^ vim; Iviivch, uml |iluiiitiii', kmiwiiijL^ tiiiit 
 III' liiiil livuii HI) mint, Inlil lU'fcliiliuit, wlimii lie 
 iiH't ^Imi'tly iifti'i'NViii'ilM, that if iu; riiil^'iit him 
 llii'ic ii),'iiiii ill* wiiiitil kii'k iiiiii iiiit, LiiiigiiaKi! 
 of tiiu Millie kiml wum iihlmI in ]ii't>MinL'u nf luiothir 
 Ki'ivaiit, ami witli a purMDiiiil ruffi'i'iicii tii tiu' 
 ili'fi'iiiiant liiiiiHt'if. After niiiiii' ihiyH, |ilaiiititr, 
 hiiviii;; rxplfMNi'il no ri'm'iit, wan toiil liy duft'iiil- 
 aiit that h(! inimt leavii at tiui L-ml of tiu'fu 
 iiiiiiiths, ami at tiiu t'xpiration of tiiat pui'i id 
 till' ili'l'i'inlaiit iiiMtriicU'il IiIm Holiiitnr to taku nil 
 hiMfiil sti'pK to turn pli'.iiititl'imt of the Iioiihu, 
 
 Ihhl, that tliu oonihict of tliu plaiiititV jimtiliuil 
 till' ilrfi'iiilant ill ttiMiiiiMHiiig him without iiotiuu, 
 mill lliiit his iii,'lil to oL'i.'iipy the Iioiinu cuaseil 
 with the tt'iiiiiiiatioii of his survii.'o. 
 
 ijiianr, Whutliur tliu Knglish I'lmtoni allowing 
 till' iliNiiiiHHal of a muiiial Hurvant on a month'H 
 nut ill', without eauHu, although liirud for a yuai', 
 I'xists ill this I'l'ovince. 
 
 Fl>'mi)i;i v. ffil/, 1 K. * ('., 'J«8. 
 
 .Si , r«/.o, COXTRAtT- 
 
 BIIiLS OF SALE, 17 ^: IH. 
 
 HORSE. 
 1. Injuries caused by-Liablllt}' for — 
 
 l)i'fi'iiiliuit's horses and carriage, driven by his 
 servant westerly along Sjjring fiarden Road, 
 met iippositu the gate of dufundant's stalilc yard, 
 ^itllilte mi tliu northern side of thu road a horse 
 iiml truck coining in the opposite direction, and 
 iiisteail of passing on thu southern side atteinpt- 
 cil to pass on the sidu nearest the stable yard, 
 the intention of the driver being to proceed to 
 a house a few yards west of thu stablus, when 
 the horses suddenly turned in towards the yard, 
 knot'kiiig down and injuring plaintifT who was 
 coming along the sidewalk near the gate. A 
 rule having been taken to set aside the verdict 
 found ill favor of the plaintiff for .*!400, 
 Hthl, that the verdict must be sustained. 
 
 Loinidi V. Rohimon, 2 R. & C, 364. 
 
 '2. Negligence of servant — Contributory 
 
 negligence — In an action brought to recover 
 damages for an injury done plaintiff's horse, 
 
 driven by liia Korvnnt, through the alleged 
 iiiiNkilfiil mill iicgligi'iit driving of a liiirni' and 
 Nli'igl, of di'l'emlaiit by his leivaiit, one of plain- 
 till's two witiiuHsuN tuHtilled that plaintilf'H itur- 
 vaiit was driving fast and defendant's servant 
 slow ly, and plaiiititf's .servant, his ntlier witiiesH, 
 admitted that he was driving pretty fast, that 
 liu saw defendant four or live lengths oil', thu 
 time wan evening and neither party carried 
 lamps, on the wrong side of the road ; that he 
 eiiiild have passed on the other side, but kept 
 on iiH hu wa« going. There was eontradiutory 
 I'viili'iicu as to thu situation of the parties at the 
 time of the accident. A venliil foiiml for 
 plaint ill' was set aside, thu Court holding that 
 the evideiicu of iiegligencu on the part of de- 
 fendant was not siitliciunt, and that plaintitl's 
 servant was guilty of contributory negligence. 
 Vonlmi V. Coiwlly, I |i, * (',, O.'i. 
 
 3. Misuser of Where a person hiring 
 
 \ fiiim another a hor.so and waggon, with seats 
 for two persons, places three therein, and the 
 
 I horse on the journey sickens and dies, he will 
 be liable because of the misuser. 
 
 Cam y V. Airhilia/il, '2 Thom., 4. 
 
 4. Part ownership of Right or set olT— 
 
 To a declaration by plaintitf for the price of one 
 half interest in a horse alleged to have been 
 sold by plaintitf to defendant, plaintitf retaining 
 the other half interest, defendani pleaded among 
 other jileaa a set off for the keep and care of the 
 horse, and expunacs connuctud with taking the 
 horse to and from 'i'ruro, while the joint owntr- 
 ship lasted. The Judge of the County Court 
 ruled that defendant could not off set his 
 account, aa that would bu off setting a partner- 
 ship matter, depending upon an adjustment of 
 accounts between the parties, plaintitf's claim 
 being for property brought into the partnership. 
 Ill Id, that thu rujuction of the set otf was 
 wrong, and that the juilgnient below must bu 
 reversed. 
 
 McDonald v. Power, 3 R. & C, 340. 
 
 HOSPITAL. 
 Liability of patient to pay for surgical 
 
 operation — Plnintifl', who at the time waa visit- 
 ing surgeon of the City Hospital, performed a 
 surgical operation upon the deceased of whom 
 the defendant was administratrix. Dr. Mc- 
 Fatridge had been attending deceaaed in his 
 illness with Dr. Parker as consulting physician. 
 The latter advised the deceased to have the 
 
635 
 
 HUSBAND AND WIFE. 
 
 63t> 
 
 operation performed in the hospital, telling him 
 that plaintiff, as house suigeon for the time, 
 would perform the operation, and he, Parker, 
 would assist. Deceased assented to the opera- 
 tion being performed by the plaintiff, and it was 
 performed successfully. 
 
 Hddf that although the hospital was primarily 
 an eleemosynary institution, yet as there was no 
 by - law prohibiting the house surgeon from 
 charging for services rendered to patients able 
 to pay, and who resorted to the institution for 
 the sake of better attendance, &c., the plaintiff 
 could recover on an implied assumpsit. 
 
 Farrell v. McLaren, 3 R. & C, 75. 
 
 HOVSE- 
 Attacbment of, to soil— 
 
 .^ee TROVEB. 
 
 HOUSE OF ASSEMBLY- 
 
 Powers of— 
 
 See ASSEMBLY, HOUSE OF. 
 
 HUSBAND AXD WIFE. 
 
 1. Admissions by Iiasband — Tbe admis- 
 sion of a husband, as to the boundaries of land 
 held by him in right of his wife, are not binding 
 upon the wife after his decease. DesBarres, J. , 
 dissenting. 
 
 Dill v. Wilkins, James, 113. 
 
 2. Ante-nuptial settlement— Power of the 
 
 Court to vary, after decree for divorce for 
 adultery— Effect of Act enlarging powers of 
 Court, passed after petition but before decree 
 — Innocent party to settlement- On the 3rd 
 November, 1884, plaintiff filed a petition in the 
 Divorce Court praying a dissolution of his mar- 
 riage with the defendant, B. S. M. , on the ground 
 of her adultery with W. L. On the 19th May, 
 1885, the decree prayed for was granted. After 
 the filing of the petition for divorce, but before 
 the making of the final decree, the Act of 1885, 
 c. 15 was passed, giving power to the Court to 
 " alter, vary or set aside any settlement made 
 by and between parties whose marriage shall 
 have been dissolved," with the same powers in 
 reference to the application of the whole or any 
 portion of the property disposed of by such 
 settlement as the parties thereto had at the 
 
 time of the execution of such settlement, und 
 providing that " the Court, on exercising such 
 powers shall have regard to the conduct of the 
 i parties to such marriage, and may exclude in 
 whole or in part from any benefit under such 
 settlement any party who shall have been found 
 guilty of adultery by the sentence or decree of 
 the Court." 
 
 Under this enactment proceedings were com- 
 menced on behalf of the plaintiff to set aside a 
 marriage settlement made by him in favor of 
 B. S. M., and a provision in favor of M. A., a 
 niece of B. S. M., as follows: — "To pay the 
 sum of 84000 toM. A., or to such other person 
 as the said B. S. M. shall by deed or by her List 
 will and testament name and appoint. " 
 
 Held, that the enactment having come into 
 force before the making of the final decree, 
 though after the commencement of the divorce 
 proceedings, the Court was invested with the 
 enlarged powers therein contained for altering 
 the settlements and directing the disposition of 
 the property. 
 
 In pursuance of such power, the defendant, 
 B. S. M., was excluded from all benefit or 
 power under the settlement, but in regard to 
 M. A., the niece, who was an innocent party, 
 it was directed that the settlement should be 
 carried out as if B. S. M. had died in the life- 
 time of the plaintiff without making any ap- 
 pointment, provided that if M. A. died in the 
 lifet-me of the plaintiff, the principal should go 
 to him on her death. 
 
 Church v. Christie et al., 20 N. S. R., 
 
 (8R. &G.), 468; 
 9 C. L. T., 254. 
 
 3. Breach of promise of marriage — 
 
 Action for — Evidence of seduction — Pleading 
 — In an action for breach of promise of marriage, 
 evidence of seduction before the promise was 
 received, although seduction had not been al- 
 leged in the statement of claim. 
 
 The evidence was objected to solely on the 
 ground that it was not alleged in the pleading. 
 
 Semble, that as the defendant entered into the 
 contract in consequence of the condition of the 
 plaintiff, all evidence iu relation thereto would 
 be admissible. 
 
 Held, ihat as the objection that the seduction 
 was before the promise was not taken at the 
 trial, and no reference was made by the Judge 
 in charging the jury to the seduction as an 
 agg 'avation of damages, the admission of the 
 evidence was not ground for new trial, particu- 
 larly as the damages were not excessive. 
 
 Held, also, that evidence of improper conduct 
 on the part of the plaintiff before the contract 
 
637 
 
 HUSBAND AND WIFE. 
 
 638 
 
 had been entered into, and of general reputa- 1 
 tion, was properly excluded, as such evidence ' 
 afforded no defence to the action ; and if oflfered | 
 in mitigation of damages, should have been so 
 tendered, and the attention of the judge directed 
 to it. 
 Embree v. Wood, 20 N. S. R., (8 R. & G.), 40. 
 
 4. Breach of promise of marriage — 
 
 Seduction — Where action was brought for 
 breacli of promise of marriage, 
 
 Ildd, the seduction of plaintiff and conse- 
 quent pregnancy, may be given in evidence in 
 aggravation of damages. 
 
 Held, also, that the statement of a party to 
 witness that he had had previous connection 
 witli her, was not admissible. 
 
 Oilmore v. Dewar, 1 Thom., (Ist Ed.), 73; 
 
 (2nd Ed.). 101. 
 
 5. Bigamy— 
 
 ^ee CRIMINAL LAW. 
 
 6. Contract by wife— Action against wife 
 
 on promissory note made by her— Plea of 
 coverture — Evidence — In an action on a promis- 1 
 ory note against a married woman defendants i 
 pleaded coverture to which plaintiff replied, | 
 Betting out an order for protection in conse- 1 
 qiience of desertion by her husband, made under I 
 Revised Statutes, c. 86. Defendants rejoined 
 that long before the making of the note she 
 returned to her husband and had since lived and 
 co-habited with him and was so living and co- 
 habiting at the time of making the note, and the 
 desertion had wholly ceased as plaintiff well 
 knew. The facts set out in the rejoinder were 
 fully proved. 
 
 Iltld, sustaining the decision of Johnstone^ J., 
 of the County Court, that the plaintiff could not 
 recover. 
 
 Weatherbe, J., dissenting. 
 Sinclair v. Wakefield et al., 1 R. & G., 465. 
 
 7. Clin by wife with consent of husband 
 
 —A wife in the presence, and with the apparent 
 assent of her husband, gave a gold chain, which 
 he liad previously presented to her, to a third 
 party, in trust for their child, an infant eix years 
 old. 
 
 Held, a valid gift inter vivos binding the hus- 
 band, and that he could not after the wife's 
 death recover possession of it in an action against 
 the tliird party, either in his own right or as the 
 guardian of the child. 
 
 Tancred v. O'Mullin etal.,2 Old., 145. 
 
 8. Judgment -Action on — Husband of 
 
 wife against whom judgment before her mar- 
 
 riage, like other defendants, cannot plead 
 matter of defence to original action — To an 
 action on a judgment the defendant cannot plead 
 any fact which might have been pleaded as an 
 answer to the original ai:tiou. Where a party 
 has obtained a judgment against another, he may 
 proceed upon it at common law, and is not com- 
 pelled to proceed by writ of revivor. The hus- 
 band of one of several parties against whom a 
 judgment has been formerly obtained, stands in 
 no better position than the other defendants, 
 and cannot plead matter of defence to the judg- 
 ment that was available in the original action. 
 Benjamin v. Campbell et al., 2 N. S. D., 320. 
 
 9. Liability of husband for support of 
 
 wife — Defendant having seduced plaint ii}''s sister 
 was induced to marry her by the solicitations of 
 her father, who professed his willingness in such 
 case to support her. Immediately after the 
 marriage defendant left his wife, who, without 
 notice to her husband, went to live with her 
 brother, the plaintiff, with the intention of charg- 
 ing her husband with her support. 
 Held, that plaintiff could not recover. 
 
 Manniwj v. De Wolf, 3 N. S. D., 261. 
 
 10. Liability of husband for waste com* 
 
 mitted before marriage by tenant in dower — 
 The tenant in dower of wilderness land having, 
 with the consent of C. R., one of the reversion- 
 ers, sold all the hardwood timber growing upon 
 the land to W. H. H., and allowed the same to 
 be removed by the purchaser, contracted a 
 second marriage with C S. After the death of 
 C. R., plaintiffs, as reversioners, without joining 
 the heirs of C. R., brought an action of waste 
 against the tenant in dower, C. S., her husband, 
 and W. li. H. , the purchaser, claiming damages 
 for the injury to the land by the removal of the 
 timber. The Judge who tried the cause having 
 non-suited the plaintiffs, and a rule having been 
 taken to set the same aside, 
 
 Held, (1) that all the persons entitled as 
 reversioners should have been joined as co- 
 plaintiffs, but, as non-joinder can only be taken 
 advantage of by plea in abatement, and no such 
 plea was pleaded, the non-suit, if ordered solely 
 on that ground, could not have been sustained. 
 
 (2.) That in such case the plaintiffs would 
 be entitled to recover, not the full value of the 
 injury done to the land, but only for such por- 
 tions of the damage as was incurred by them- 
 selves alone. 
 
 (3. ) That the tenant in dower was entitled to 
 cut down the trees on the land for fuel, fencing, 
 improvement and cultivation, and purposes 
 connected with such improvements, but not to 
 sell the wood for other and different purposes. 
 
630 
 
 HUSBAND AND WIFE. 
 
 040 
 
 to the perinaiicnt injury of the reversioners, 
 anil that for Hiich injury Aw was re.si)onsil)le to 
 the reversioner. 
 
 (4.) ( Dnhitauh-. ) Tiuit an action will lie 
 against a husWand jointly with his wife for 
 waste oomniitteil liy the latter liefore their 
 intermarriage. 
 
 (.').) That \V. H. H., the jiurohaser, acting 
 as he dill, untler the authnrity of the tenant, was 
 not chargealile for waste liy the reversioners. 
 
 Titm et a/, v. .>>'h/m >( uL, '.i N. S. 1)., 4!»7. 
 
 11. Marriage, proof of-In a prosecution 
 
 foi' liiganiy, where there is a foieign marriage, 
 the foreign law nmst lie stridly proved. 
 
 'i his, however, is not necessary, where the 
 marriage has been admitted hy the defendant, 
 and there are corroborating circumstances 
 strengthening the admission. The testimony of 
 the minister who married parties that he had a 
 marriage license which was brought to him by 
 one of the parties ; that he duly returned the 
 same ; that all the fornm of law were observed 
 as rei|uireil by the license, and that the marriage 
 was performed according to the rites and cere- 
 monies of his clmrcli is sufKcient ])roof of the 
 license having been issued and returned, and of 
 the marriage having been duly solenmixed. 
 
 Wilkins, J., donhtuiij. 
 
 In this case, the first alleged marriage was ' 
 contracted in Boston, Ma.ssacliusetts, and no 
 l)roof whatever was given of the marriage law of I 
 Massachusetts. There was evidence, however, i 
 by a witness present thereat, of a marriage cere- 
 mony, and of Hubseijuent co-habitation as man 
 and wife. Another witness testitied as follows ; 
 " I spoke to the defendant at Farrsboro, a wonuin i 
 clainiing to be his wife was looking after him. 
 She is now present. I asked him what made him 
 leave his wife in the vStates and marry another 
 woman at I'arrsboro. He said he did not think ; 
 his wife would follow him from the States. He 
 thought she never would trouble him, but as long 
 as she had followed him, he would take her and 
 support her as hjng as they lived. We were old 
 acquaintances, and I asked him about his wife 
 who was claiming him.'' i 
 
 HM, that there was no necessity for proof of 
 the marriage law of Miissachusetts, as the 
 nmriiage was sulficiently proved by the admis- 
 sion of the defendant and the corrolwirating 
 circumstances. 
 
 Qmen v. ffiiiry I'. Allan, 
 
 1 X. S. 1)., 5; 2 Old., 373. 
 
 12. Married Women's Property Act of 
 
 1884— Seizure of wife's property under at- 
 tachment against the husband— Averment of 
 
 performance of condition precedent Wages 
 or earnings --Pleading— The plaintitl', A. .1. 15,, 
 a married woman, was owner of certain Hats or 
 water lots on the Anna])(>lis Hiver, at (iranvillu, 
 in the County of Annapolis, upon which a weir 
 was erected for the taking of lish, l)ct'ehdaut, 
 as .Sheriff of the County of Annapolis, levied 
 upon a iiuantity of lish taken in the weir unih.'r 
 a writ of attachment issued against the husband, 
 •I. 1>. as an absent or absconding debtor. He 
 had been residing for several years in the United 
 Statea, having left the I'rovince for the United 
 States in ISSl. The property upon which tlie 
 weir was erected was acijuired by A. tj, 15, in 
 ISM'J or 1H8.S, and the attachment was issued on 
 the 'J.'lrd Sejjtendier, 1 884, the Married Women's 
 Property Act being then in force. 
 
 Iltld, /(f?* McDonald, C. J., that the tish taken 
 by the plaintiff, or by persons employed by her, 
 were "earnings" within the meaning of .")!h H. 
 S., e. 94, s. 5-_'. 
 
 Al'<o, that the statement of claim containing 
 an allegation that the "said properly was 
 aci|uired by the said A. J. 15., during covertuie 
 otherwise than through her said husband, and 
 l)elongings to her under and by virtue of the 
 Married Women's Property Act of I8S4, in her 
 own right, and to which she claimetl to be en- 
 titled mider said Act," the defendant was lK)und 
 to plead non- performance of the condition pre- 
 cedent ret|uiring the filing in the Registry of 
 Deeds of a consent in writing by the husband, if 
 he wished to take advantage of it. 
 
 Pir McDonald, J.— That the plaintiff's state- 
 ment of claim im]>lied an averment of the per- 
 formance of the condition precedent necessary to 
 maintain her ease, and that the defendant must 
 specify distinctly any condition, the jHirformance 
 of which he intended to contest. 
 
 Alxo, that tile words "wages or earnings" 
 covered the result of the plaintiff's labor and 
 industry as well as something acijuired under a 
 contract for services. 
 
 /'('»• Ritchie and Weatherbc, J J. — That !he 
 plaintiff's statement of claim pointed distinctly 
 to the third section of the Act, relating to the 
 real and personal properly of married women, 
 and contained no reference to wages or earnings, 
 or anything to suggest that the property was 
 claimed under section .">"2, which protects a u;ar- 
 ried woman s seimrate earnings with the has- 
 baiul's con.sent. 
 
 That, if the]daintiff had brought herself with- 
 in section .'»'2, she might have recovered, though 
 an amendment would have been necessary. 
 
 That, there is no distinction between lishing 
 and any other business which might have been 
 carried on on the land, the profits of which would 
 
641 
 
 HUSBAND AND WIFE. 
 
 G42 
 
 not 1)0 exempt from Huixure unless the uoiulitions 
 i,f .sectiim it- Imtl been coniiilied with. 
 
 liuhakti- a al. v. Morst, 20 N. .S. R., 
 
 (8 II. &(!.), '1\'2; 
 8C. L. T., SOS. 
 
 13. Married Women's Property Act — 
 
 Liability of wife's separate estate for costs - 
 Till' Miirrieil Women's Property Act of 1884, 
 ili;i|i. 1-, see. It), provides that any judgment 
 recovered by iv liusband and wife, in any suit 
 arising out of or in connection with the wife's 
 property, siiiill in\ire to her sejKirate benefit, and 
 tliat any judgment obtained against them (ex- 
 tijit for her tort) shall l)ind her separate estate 
 alone, etc. 
 
 In a suit brought by a married woman for 
 injury to her separate property, the husband, 
 who was insolvent and absent from the Province, 
 v.iiH joined as a party plaintiff, and an order 
 was obtained, reiiuiring the wife to give security 
 for the defendant's costs, or to appoint a next 
 fiieiid who should justify. 
 
 //(/(/, that, although there is no apjKal from 
 a discretionary order of a Judge, this should be 
 contined to cases that are purely disci;etionary, 
 where the discretion has l)een exercised on a 
 riglit principle, and where no question of law 
 is involved ; and, the order in the present case 
 having been granted under a mistake as to the 
 law respecting the liability of the wife's separate 
 estate for costs, the discretion was wrongly 
 exercised. 
 
 .l/vo, that the order was bad, as creating a 
 
 liability on the part of the husband to pay costs, 
 
 exceeding that imposed by section 16 of the Act. 
 
 Card V. Wttkx, 4 R. & (J., 9,3, dixtiinjuixhed. 
 
 Bohaktr et al. v. Morse, 7 R. & O., 165 ; 
 
 7C. L. T.,247. 
 
 14. Money depoaited in bank— 6. E. Bis- 
 set, by his will, bequeathed lo his daughter, 
 Maria Matheson, £2000, "for herself and her 
 children, issue of her nuirriage, now or hereafter 
 living, to be exempt from any debts or liabili- 
 ties of her husband, Donald Mathesou, should 
 he from accident or misfortune hereafter become 
 enikirrassed, with power in his executors to 
 invest the same at her desire in good securities 
 with interest for her and her children's Iwnetit." 
 subject to a deduction of £870 due the testator 
 by Donald Matheson. The plaintiff, together 
 with Matheson, testator's widow, and another 
 were appointed executors. The testator died in 
 1S61, there being at that time, and at the time 
 of the making of the will, children of his 
 daughter living, but the estate was not settled 
 until September, 1871, when Matheson deposited 
 
 21 
 
 in the People's Bank 86000, lieing the balance 
 of the bequest due his wife after deducting the 
 amount due by him to the estate, with in'.erest 
 to the date of the de|M>8it. In the same month 
 he maile an assignment under the Insolvent Act 
 of IStii). During the ten intervening years the 
 amount had been used by him in liis business, 
 and for his family, tliough without the knowl- 
 edge or sanction of his wife, and entries were 
 made by him from time to time in accounts 
 reiulered to the widow, who wit' liimself cliiefly 
 managed the business of the estate, of sums 
 received as interest on his wife's legacy, amount- 
 ing in all to the whole interest that would bu 
 due thereon. This was not authorized by his 
 wife, but she ilid not object to it, or apply for 
 the interest herself. Defendant Rhindress, as 
 assignee, having claimed the fund deposited in 
 the People's Bank, 
 
 //' III, that the children took an interest under 
 the will, but that, independently of tiieir inter- 
 est, as tliere was no evidence that Mrs. Mathe- 
 son had sani.'tioned the use of the money by her 
 husband, jdaintitr, as trustee for her and her 
 children, was entitled to an amount equal to the 
 Ijfilance of the legacy, after deducting the debt 
 due by Matheson ; but that the assignee was 
 entitled to the amount deposited for interest 
 thereon, as the Court must presume the ac(iui- 
 escence of the wife in the husband's receipt of 
 the interest from year to year, in the absence of 
 very clear evidence to the contrary. 
 llunttr V, Tht Peoples Bank of Halifax it al., 
 
 R. E. D.,91. 
 
 15. Possession of Widow— Tlie adverse 
 
 ' possession of a widow, cextui que tnutt, as against 
 the trustees, will inure for the benefit of her 
 I children, lieing also centuis que\tnuitenl, and 
 I cannot be set up against their title. 
 1 Archibald v. Blois, James, 307. 
 
 16. Trust Funds— Property purchased by 
 
 husband ostensibly for wife out of funds- 
 Liability of, to be taken under execution 
 against husband — Trust funds settled on a mar- 
 ried woman for the benefit of herself and chil- 
 dren were expended by her and her husband 
 contrary to the provisions of the deed of settle- 
 ment. The husband afterwards repaid to the 
 trustee, out of his own earnings, the amount so 
 expended, but while repaying it he said to the 
 trustee that he wished to make his wife a present 
 of a horse and waggon. The amount so repaid 
 was drawn by the husband a day or two after- 
 wards out of the bank, on a cheque given him by 
 the trustee, and a horse and waggon bought with 
 part of the money. The articles were used by 
 
643 
 
 HUSBAND AND WIFE. 
 
 0'4 
 
 tho wife, and ulao by tlio liu.sliaiul, who wan u 
 phyHiciiin, in IiIh piiictice. One vitnt's.-) wiid 
 that tho hoi'Hu aiiit wag^'oii wlmu phkoutl in liiti 
 cliai'j^u by tlie wife, witiiinHtniotionH not to give 
 thi'in to lier hii.shanil v.itliout lier onleis, whicli 
 inKtriictionx witnosH suid lie ()l)eyt'd. 
 
 Held, that the horse and waggon were not 
 
 trust property, hut the property of tlic liiistNvnd, 
 
 and coidd i>e taken on an exeeution against him. 
 
 (ii//iiii V. Sairyir, 1 Old., !)li4. 
 
 17. Warrant of attorney made by husband 
 
 and wife —Judgment on — Wlien a woman en- 
 tit luil to real estate joined with her hushand in 
 oxeeiiting a warrant of attorney on which a 
 judgment was entered and rei;ortled, in onler to 
 bind siicii real estate, tiie Court of I'rohate is 
 not justified in treating tiie judgment as a 
 
 nullity. 
 
 In re Enlate of Xelxou, 2 Thorn., I. 
 
 18. Widow consenting to investment of 
 
 funds to which she and her children are en- 
 titled — A testator, l)y ids will, devi.sed and 
 beiiueathed his real and personal estate to his 
 wife and another, as executrix and executor, in 
 trust to .sell tiie same and invest the proceeds in 
 the best securities they could obtain, and, upon 
 the coming of age of the testator's children, to 
 divide the money among the children and the 
 widow, in .specified proportions. The executor, 
 witii the con.seiit ami awjuiescence of the widow 
 loaned a part of the trust funds to nuirchants 
 engaged in ship-building, who afterwards be- 
 came insolvent and unable to reiwy tho money. 
 /ii/il, that the trustees were not justified in 
 investing the money on personal security, and 
 must make good the loss to the children ; but 
 that the widow could not make her co-trustee 
 liable to her for the loss she might sustain, 
 having acquiesced in the investment. 
 
 Perky et al. v. Snoio el al., R. E. U., 373. 
 
 19. Wife's equity to a settlement— J. C. 
 
 died about the year 1862, possessed of a fund 
 amounting to £8,638 28. 4d., which he devised 
 to trustees upon certain trusts in favor of his 
 daughter and others, and upon failure of such 
 devises, then to his nieces or their lawful issue. 
 The original devises in the will having failed, 
 a rule was passed in the Equity Court on a suit 
 instituted by the trustees by which it was ordered 
 that a portion of the fund should be distributed 
 and paid by the trustees in certain proportions 
 among the next of kin of the said J. C. 
 
 M. W. iMiing entitled as one of the next of kin, 
 with J. S. W. her husband, executed a power of 
 attorney to S. empowering him to receive the 
 money coming to her by virtue of the said will. 
 
 On the 3rd April 18tt8, S. received under .siiid 
 power the suin of .'?l,}>27, which on the same day 
 was attached in his liunds iiy K. IS. on pro(.'t'.s.s 
 
 , issued against J . >S, \V. , the husband, a.t an abiteut 
 
 ! or absconiling debtor. On the 23r<l Kcliruary, 
 previously, J. S. \\'. had been acljudicatcil a 
 bankrupt in Knghtnd, and a creditors' assiguev 
 was apjiointed. Notice of this was received i)y 
 .S. on May 21st, l8(iH, but no notice of the 
 
 ' bankruptcy had Ijcen received by K. 1!. at tiie 
 time of the issue of the attachment process. .S. 
 
 ! was notitied by M. W. on July 2t)th, 18()S, tiiut 
 
 ' she claimed tlie fund in (piestion in her own 
 right, and she followed this u|) by a suit in 
 
 I Equity. 
 
 Hi/il, on a case jirepared, that tlie creditors' 
 assignee was entitled to tlie fund as against K. 
 1!. tile attaching creditor. 
 
 Hi Id, also, that the l>aukruptcy of J. .S. \V. 
 determined the power of .S. to receive the fund, 
 that it had not been reduced into jMjssession, ami 
 that it, therefore, nuul be treated as if still 
 remaining in the hands of the trustees. 
 
 Uild, al-^o, that tiie creditors' a.ssignee wm 
 not entitled to the fund without making pro- 
 vision for the wife, and that the latter, iieiiig 
 entitled to the fund as a rhow in arlion, wiis 
 justified in coming int(. eipiity for her protection. 
 Hi Id, also, that as J. .S. \V., the husliaml, wua 
 a Ixinkrupt, and that, the sum in controversy not 
 
 ! being large, and M. W ., the wife, without any 
 
 ' i)rovision made before or at the time of her iniir- 
 riage, the taxable costs being first paiil, tlie l)al- 
 
 I uncc of the fund should l>c \m,\i\ or secured to 
 
 : her for her own benefit. 
 
 I Jiopi'f V. Shannon, 2 N. S. 1)., 14(j. 
 
 I 
 
 I 20. Wife's money used by husband with 
 
 ' her knowledge — I'laintiflT, the widow of C'liiis. 
 S. Silver, was entitled to certain projKjrty pluccil 
 j in trust, among other things, for the payment of 
 1 rents, etc., free from the control of her IiusImuiiI, 
 and not subject to his debts. She directed her 
 ; trustees to pay over to her husband the income 
 j for certain years. Her husband was at that 
 ; time in partnership with Wm. C. Silver, carry- 
 ' ing on a business in Halifax which was conducted 
 j by Chiis. S. Silver alone, Wm. C. Silver having 
 withdrawn from the management of it, and 
 taking no oversight of its affairs. When plain- 
 tiff directed the money to be paid to her husband 
 she knew he was in embarrassed circiunstances, 
 and he had then and long l)efore exhausted his 
 capital and become indebted to the firm, ids 
 family l)eing meanwhile supiwrted from the funds 
 of the firm. In those circumstances he had 
 ordered the money paid over to him by his wife's 
 trustees to lie paid to creditors of the firm, aiui 
 opened an account on the firm liooks, charging 
 
64.") 
 
 INFANTS. 
 
 G46 
 
 till- lirni iwnl crediting Mrs. Silver with tlie 
 iMoiiey 80 paid. L'hiw. S. Silver died iiiHolvcnt 
 in IM'O, wliL'ii Win. (', Silver ttr«t liccanie iiwure 
 (if tlu! I'ourse pursued l)y iii.s co-jmrtner. I'lain- 
 tiff in this suit claimed from Win. ('. .'Silver, as 
 ."urviviiig partner, the repayment <>f the money 
 Hci received liy ilie linn and credited to iier. 
 
 Hi III, tliat ('has. .S, .Silver was not justified in 
 crtMliliiig such moneys to plaintiff without her 
 cciiicurrence or that of Win. C. Silver, and that 
 llic liitter was not liable. 
 
 Sih-fr V. SUrcr, R. K. 1)., 1«9. 
 
 IDENTITT. 
 Part) served same name as defendant— 
 
 IftliejMirty wiio lias been served with process 
 iiiid appeared to defeml the action bears the 
 si.nic iiiuue as the jwrty proved to be liable, the 
 plaintiflT is entitled to a verdict unless the jwrty 
 80 served, &c., shows tluit he is not the projMir 
 defendant. 
 
 Thayer v. Vatire, 2T\wm., 269. 
 
 IMPORTATION. 
 What constitutes Importation under tbc 
 
 Revenue Laws — It has been decided over and 
 iiver again, that in order to constitute an impor- 
 iatidii, it is not necessary that vessela should 
 come to a wharf. 
 
 The mere fact of coming into port with goods 
 on Umrd is }>riina fark evidence of an importa- 
 tion, and is, consequently, clearly a violation of 
 sec. 9 of .11 Vic, chap. 0, where tiie port is not 
 « {wrt or place of entry, and the goods are 
 ilutiahle. 
 
 A vessel, while proceeding from the island of 
 St. Pierre, which is a colony of France, to New- 
 fimndland, put in at Aspy Bay, in the island of 
 CiilH; Hreton, the said Aspy Hay not Iwing a 
 (Hirt of entry, without necessity from stre.ss of 
 weather, and having dutiable goods on board, 
 some of which goods, the evidence went to 
 show, had l)een there landed, and no ihity at 
 any time paid thereon. 
 
 H'id, that, under sec. 9 of 31 Vic., cap. 6, 
 tile captain of the vessel had incurred the full 
 penalty of $800, iinjwsed by that section. 
 
 The Minnie, Y. A. D., 65. 
 
 INDIAN COMMISSIONER. 
 
 Action against Indian Commissioner for 
 
 arrest of a person treapasaing on Indian 
 Reserve - Verdict for plaintiflF set aside — 
 
 Plaintiff having continued to trespass upon a 
 portion of the Indian Keserve lands at Why- 
 oocomagh, Inverne.sH, by cutting hay, etc., after 
 notice to cease doing so, one of the defendants 
 as Indian Agent ami Justice of the Peace, issued 
 a warrant under which plaintiff was arrested by 
 the .SheriH', assisted by another defendant, who 
 was called upon by the Sheriff for that purjjose, 
 and after trial aixl conviction, was committed to 
 jail in default of the tine imposed, under chap, 
 ter 'JS of the Dominion Acts of 1880, sec. '27. 
 I'laintiff thereupon brought an action cluiming 
 damages for the arrest, and the jury having 
 found a verdict in his favor against the Judge's 
 charge, the verdict was set aside. 
 
 McLean v. J/«7<firtc ef aJ., 6 R. & (J., SM ; 
 
 6C. L. T., 453. 
 
 INDICTMENT- 
 .S^ee CRIMINAL LAW. 
 
 INDIGENT DERTOR- 
 See APPEAL, IV- 
 INSOLYENCT. 
 
 INDORSEMENT- 
 
 1. or Rills and Notes- 
 
 See RILLS OF EXCHANGE AND PROMISSORY 
 NOTES. 
 
 2. or Rills or Lading- 
 
 See SHIPPING. 
 
 INEVITARLE ACCIDENT- 
 See SHIPPING. 
 
 INFANTS. 
 1. Custody or— When Court will interfere 
 
 with parental right to— Father and mother 
 separated, the mother taking their infant of the 
 age of thirteen months. She kept the infant 
 until it was twenty months old, when the father, 
 seeing it on the street, seized it and retained its 
 
647 
 
 INJUNCTION. 
 
 €48 
 
 cuBtotly. The mother obtained a r«/c nini for a 
 writ of hahe.ns eorpxin. Objection was taken 
 that a court of common law and common law 
 judgeti had no jurisdiction in such a ciwe. 
 
 }lilil, that chap. 1"24, sees. 1 to 4 inclusive, 
 of Mrd R. S., invests the .Supreme Court with 
 all chancery jMiwers, and that under 3rd K. .S., 
 chap. ir>3, "Of the Liberty of the Subject," the 
 Supreme Court and its Judges have ample juris- 
 diction to grant the writ of halnas cor/nuH asked 
 for. The Court will interfere with the paternal 
 rights only in cases of very great misconduct. 
 None established in this case and writ refused. 
 In rt James William lilark: 
 
 At ChamhrrH, unrejtarttd. 
 
 2. Infant trader purchases goods and 
 
 appropriates them on account of his board- 
 Such appropriation does not render them 
 necessaries — An infant trader bought goods 
 from plaintiff, part of which were found by the 
 Judge to have been given by him to his board- 
 ing-house keeper on account of his board. 
 
 Htid, reversing the judgment of Johnston, J., 
 that the fact of the go(jds Iwing so applied did 
 not rciuler them necessaries so as to enable the 
 plaintitr to recover, and that the judgment must 
 be entered for defendant, with costs. 
 
 Jenkim v. Way, 2 R. & (J., 394 ; 
 2C. L. T., 108. 
 
 3. Real estate of inftints- Power of Court 
 
 over — EflFect on such power of appointment of 
 guardian— The power of the Equity Court over 
 the real estate of infanta, in this Province, is 
 more extensive than any such power which has 
 ever been exercised in England. 
 
 If it be shown that by the disposal of the 
 property the interest of the infant will be sub- 
 stantially promoted on account of any portion 
 of the property being exposed to waste or delap- 
 idation, or being wholly unproductive, or for 
 any other reasonable cause, the Court has a dis- 
 cretionary power to order a sale. 
 
 Where the whole property yielded an income 
 of only 8100, and the infant's undivided share, 
 upon a sale, would produce four or five times as 
 much as their share of the rental, 
 
 I/eld, that the discretionary power of the 
 Court was wisely exercised. 
 
 Held, aluo, that the discretionary power of the 
 Court to order a sale was not determined by 
 the appointment of a guardian, and that where 
 the guardian, who was the mother of the infants^ 
 was opposed to the sale, and neglected or refused 
 to find security as required by 3rd R. S., cap. 
 124, sec. 51, the Court had power to remove 
 Buoh guardian, and substitute in her stead a 
 
 suitable person us next friend to tile the nt'(X'g. 
 sary bond and i-tFcct the salt'. 
 
 In rt E*lttlt of Lanlor, '1 N, S. 1)., 153. 
 
 INJUNCTION. 
 1. Adequate remedy at law -Plaintiff wan 
 
 assignee of certain chattel mortgages given liy 
 the lirms of 1$. Ik, 15. and H. k. Co. .)n goods con. 
 taincd in the premises occupied by tliuni, iuid 
 had entered and taken possession of the gdmU 
 with the assent of tine IJlakeley who represent id 
 l«)th tirms. Blakeley subsequently executed 
 an assignment for the general benefit of credi- 
 tors and gave a confession of judgment to 
 Jenkins, one of the defendants, who entered up 
 judgment and issued execution, under wiiich tiie 
 Sheritr forcibly entered upon the premises and 
 di»p<j8sesse(l plaintitf. I'laintitF thereupon ap- 
 plied for and ol)tained a writ of injuuction en- 
 joining defendants from selling the goods or 
 removing the same, or attempting to enforce the 
 execution, and enjoining Jenkins from tiikiiig 
 possession under the assignment to him. I'lain- 
 tiff alleged in his bill that though he hail liaJ 
 possession of the goods, he had made no inven 
 tory, and did not know the (juantity of goods on 
 the premises ; that the members of the tiini ol 
 B. & Co. had no neans outside of the goodi* cov- 
 ered by plaintiff's mortgages, and that, unless 
 plaintiff's claims were realized out of the goods, 
 he would suffer irreparable injury ; that there 
 was no adequate remedy at law ; that the goods 
 covercii by the mortgages were insufficient to 
 satisfy the amount they were given to secure ; 
 that the mortgages were given to secure plaiutilf 
 for accommodation and advances represented by 
 negotiable paper, which was daily maturing; 
 and that unless plaintiff was permitted to sell 
 I the goods to meet said paper, he would be 
 i obliged to sacrifice his private property, and 
 I that the assignment and judgment to Jenkins 
 I were given fraudulently and for the purpose of 
 injuring plaintiff. 
 
 On appeal from the decision of the Judge in 
 Equity discharging a rule niti to dissolve the 
 injunction. 
 
 Held, that the entry by the defendants was 
 an act of tresposs for which plaintiff had a 
 complete remedy at law, and that plaintiff's re- 
 maining allegations were not sufficient to bring 
 the action within the class of cases where a 
 Court of Equity will interfere by injunction, not- 
 withstanding the existence of a remedy at law. 
 Creighton v. Jenkins el a/., 5 R. & G., 352. 
 
649 
 
 INJCNCTIUN. 
 
 G.)0 
 
 •2, AiMK'iil rroiii rtTiiMil to rcslraln a sMe 
 
 (liHiiii.i.st'd wlit'ii ailvertirted diiy of Hule paswed 
 /,'. . <(.//i('/'V'('(( - I'liiiiilillM lia.l (ilnaimil a lis- 
 ti ciiiiiiiL.' i'kI'I ti'oiii the fill iiicr •ludj.'c in Ki|iiity 
 llinlir a juil;.'iin'nl which wan li'Viisrd //( luiiini 
 ,ill>i whii h iilaiiil ill's ohtaiiicd frmii I hi' |)ivsfnl 
 .liiil.'i' ill Kipiily li'avi' to aiiii'iid tiicir hill, ami 
 iiiiiihi'd f>>i' II M'l'iiiiil iiijiiiK'tiiiii, whii'h was 
 iitiiMil "II 'III' ;;r<'iiiid that thi' cast' had imt 
 hiTii valii'd liy till' iiiiii'iidliiflit, and the .llld^,'c 
 ill Ivpiity was lnuiiid liy thir jndj,'iiii'iit of tiii' 
 Cniiit ill liniii-n. 'I'hi,' a|i|ii'al finni tiiis refusal 
 
 w,is dismissed, 
 
 /•')■ Mi|)niiahl and 'riiiiin|»s(iii, .1.1. - 'I'liat 
 tlini' was nil (jiiesticm t<i deeide, as the injiine- 
 tiiin was to ivsti'aiii a sale advertisiMl fur a day 
 Imiy siiiLi' jiassed. 
 
 /'. /• Wi-atherlie, .1. — That the matter was /i - 
 iiiljiiiliiiiln. 
 
 ■hiliu'g, .1., iidherecl to his jnd^'ineiit as .Judj,'e 
 ill Ki|iiity. 
 
 .h.hii^ .1 11/ . V. Hiiihtiiir ,1 ii/., ."i H. .t (;., i;k 
 3. Contract -Kcstraining breach or--Ue- 
 
 feiidantK assigned to plaiiititrs the exclusive right 
 til nianiifaettire iiiid sell, within the 1)(iininii>n of 
 Canada, the Island of Newfoundland, and the 
 W. I. Islands, a preparation designed for the 
 treatment and cureof pulnionary diseases, known 
 as " I'littner's Kinidsion of Cod Liver Oil." l)e- 
 fiiiihints reserved the right to manufaituiu and 
 sell the emulsion in the United States, hut agreed, 
 us part of the eonsideratioii for the jiurehase liy 
 lilaiiititfs, that they would not sell the einulsion 
 111 any other einnlsiou in the preparation of 
 whiiii rod liver oil was used, or wliieii was 
 isseiitially or snhstantially tlie same as that 
 assigned to plaintitl's, witliin any jKirt of the 
 ileseiilied limits. Siihseiiueiitly, the defendants 
 niiiimenieil the inanufaetiire and sale, in Canada, 
 'it an emulsion which, though sold under the 
 iiaiiie of " IJiidd's Kinidsion,'' was essentially ami 
 suhstaiilially the same as that assigned to plaili- 
 titls. and ill the preparation of whieii plaintitl's' 
 eiinijsiiin, tiiougli varied from so far as to create 
 ii .Hiciitilic, Imt, for trade purposes, an imma- 
 terial (lifTereiice, was largely imitated. Wliile 
 tile cojiyiiig (if any of the particulars specified in 
 tlie trade mark was avoided, appearances, name, 
 and other iiiilieia were adopted in such a way as 
 t'l have the effect of eau.«ing defendants' eiiiul- 
 ^iiiii to lie hougl.t as that sohl to plaintilTs, and 
 til lead the pulilic to helieve that defendant.s' 
 iiinilsioii, if not the tea! and only genuine , 
 " I'uttner's Kniulsion," was essentially and sub- 
 stantially the same. 
 
 •\ lierpetual injunction having is.-iued to re- 
 ^liaiii the nianufaetuie and .^ale of " Hudd's 
 KiiiiiLsiiin, 
 
 //./'/, (.11 .ippcal, that dilelidalils wei e uiiilly 
 of a clear \ inlation of their aj^leenielil . ainl I hat 
 the injlllit'tioii must he sustained, 
 
 ,l/«o, a large iiiimher of hiidiiig physiri.iiis 
 having testilied that they were in the h.ihil of 
 prescrihing cod liver oil eiiiiilsion for the use of 
 their patients, and that it was a highly iisi'ful 
 article, that the preiiaratioii loiild not he classed 
 with iiostriinis and i|iiaik remedies, uhicii the 
 Conn refused to iiiterl'en' to prutcct, 
 
 .|/«i, that the It sti ictinli iniilaimd in the 
 agleiliiellt lietweeli the parties in view of the 
 siiliject matter of the contrail, W.is imt uiiieasuii- 
 alileoi void, as in restraint of trade, 
 
 lil<ll •! III. V, I'lifliii I- <l III., 7 It. \ <•,, lil,"i, 
 
 I. i'roM'ii cannot bv sued or enjoined - 
 
 Remedy by petition of right I'laintiMs sonL'ht 
 toelijoili the defendants froiii selling the niadlied, 
 right of way, rails, slee]iers, rights, privileges 
 and franchises connected with a line of railway 
 lietweeii Oxford and New (ilasgow, etc,, and to 
 set aside a cniiveyaiice in trust made tor that 
 purpose. 
 
 It ap|ieaiiiig that the Crown was the princi- 
 pal party interested in the conveyance sought 
 to be declared void, and that the in jiiiirtion was 
 virtually against the Ciuwi:, 
 
 Hi III, that objections taken to the jurisdiction 
 of the Court on the grounds that the Crown 
 was not liable to be sued, or restrained by 
 iiijunction, and that plaintill's' remedy was by 
 pi'tition of right, and not otherwise, must pre- 
 vail. 
 
 7'/ii Moiilridl null Kiirojiiaii Slivrf Lim 
 
 liaitiiuy Co. 1 1 III. v. S/iirar/ ii iil., 
 •-flN. ,S. W., (S H. >V (i.) 1 1,-1, 
 
 5. Discovery — Bill for - KestraininK de- 
 fendant from pleading— The plaintitl's si night 
 in tlii.i suit discovery of facts iiecesssary to 
 enable them to plead to an action at law 
 brought against them by the defendant, and the 
 writ contained a jirayer of relief in resjiect of 
 the matters of which discovery was sought. On 
 taking out the writ, plaintiffs obtained an order 
 restraining defendant from further action in the 
 common law suit, and defendant, having tiled 
 his answer, sought to have the rostrainiiig order 
 discharged. 
 
 Held, that the plaintiffs having sought relief 
 in this Court, had elected this tribunal, and 
 could not at the same time nuike the matters 
 referred to in their writ the subject of pleas to 
 the action at law; that the evidence sought for 
 was, therefore, not pertinent to the defence in 
 the action at law, and that the restraining order 
 having been granted solely on the ground that 
 
O.'.l INJUNXTION. (;-2 
 
 clijxDvciy «,is luicswaiy, iiiiisi lif ilisc|i;ii-;.'iil iiltlicniuli il was iillt'gu.l in the lUi^wir, tlic cv iil 
 incipi'il Im' of llii' Milliiifiiry iif tlic di t'cndiiiit's i-ini' iliil not jilslify tin- ciiiuliiiiiiu tliiit |ilaiiititl 
 iili.^Wi'l ; lli.'tt till' |ili. sent .suit, iiltliiill'^li it t'lilllil h.'ld uliaiiiliiiH'cl liJH light lllnlil' tllc \vi\^f III 
 
 lint lir iri'iilt'd iis II suit fill' ilisi'dveiy, Ktill con- c'liiiteiiipliitcil lining mi, 
 
 liiimii us 11 xiiit fur nMvf, Imt flmt iilaiiitiffs //«/</, tliiit plaiiititr was ciniiUil to liavf mi 
 
 liiiglil ilisi'iiiitiiiiif the suit ami jdvail tlu' fiu'ts in jiiiujtiim to if.stiaiii dcfi'iidaiit fimii iniMci'diiiu 
 
 set iiiit III llic writ as a drtiiirr lu till' action at with tlic ciiH'tiun of liic Iniilding, as llic icnud> 
 
 ln«. at (.oiniiiiin law was nul full and adi'ijuatc, aial 
 
 Til' Cii/ii flr'tiiii Cii. ( l.'niiii'd ) \ . <i:,l,i>nii, it Wdiilil lie iiii|iim>iii>lu fiic a jiify ti) fstilnatf thr 
 
 it. M. I)., ".'4(1. diiniagts with ai'fui'ai'y. 
 
 Mu.so,, ,1 „l, V. Sloihl it III., \\. v.. 1)., 47s. 
 
 II. Ilissolvi-d nlii'ir all alU'KatloiiK on 
 
 uhi.li t;rant.a iitKativid by defendant- j>, InJlllHllon Afflrtavlts, m|UlslH'S Of 
 
 I'laiiiiiir liavin- iililaiiii'd an iiijiin.tiiiii til r.M Pnjetii-e Wheiu plaintillM had lin.nght an 
 
 I lain 111,, sal.' i.f a mining pn.iieity in wiiiLh lu.' ,j,,,j,,„ „g,ii„^, dofi'iidants for an all.'gnl tifsi.a.'..s 
 
 «a> iiil.'i-.'.st.'d, iIr' defendants inadf aiiswei „„ ,,„.(,, ,„|,„,^ ,j,„, ;, n,,,,,,,,,.,,,! ,i„i, t|,i, „,im' 
 
 under oath negativing all the allegations on „,,^ „i,i,j„ ,|„, ij,,,,,,,, ,,,■ ,, i,,, „..,si.,|,.d to tli,. 
 
 «hiili the idaintitr'selaiin to relief «as founded. ,,;,,, y. niidir whom |,!aintili; .hdiiied. on a survey 
 
 //./'/, that eredil must lie given to the answer ,i,i,.„ded l.y all tlie parlies tiien interested; 
 
 and the iujuni'tio.i must lie diss.dved, fraud not ,|,,„ ,,„. ]„; ,,,^,i ,„,,,„ ,„.,.„, ,ii,,i f,,,,,, ,i,,it tinu. 
 
 having liii'ii shown, under tiie iirinrjpl.. laid ,,^. ,,„. ,,i,ii,„i)f^ ,i,„i ti,,,^^ ,„„ie,,. „lioni they 
 
 down ill r/,.,/,//// V. //V,//.. S Ves.. ;{li7. ciaiiiied, liy sent of the proprietor of the 
 
 ll'imi'tnii K. Xnrili„i,,-2\. S. \^..MVX ,„ij„i|,ii,g 'h,l, iind.r wiioin llie defeiidiuits 
 
 elaiined ; and that no interruption of that oeeii- 
 
 t. Kalslly of statements in applleatlon patimi had heen attempted for a jieriod of nine 
 
 for - Adeiiuatf legal remedy Praying Hpeci- years, oi- until defendants interposed, 
 
 ally for .an injuiietion — I'laintiir, in his writ, The Conrl refused to dissolve an injunetiini 
 
 soiiglil to lri\e a judgiiieiit, entered against him whieh had lieen granted on i x /mr/i allidavil-, 
 
 ill t he ( oinity ( 'ouit ii|ioii a eonfessioii signed liy on liehalf of llie plaintitl's, lo restrain the de- 
 
 him x\ hell iiiider the aLC of twenty-one, declared feiidaiits fioiii working or interfering with ilie 
 
 null and \<'id, ami iiiovcd for an injunction to mine. 
 
 restrain a sale under execiilion, upon aflidavits The fact of the title liciiig in dispute, oi nf 
 
 verify iiig tlie statement contained in the writ, the opposite paity acting under a claim of riglil, 
 
 that llic warrint of confession on which the will not prevent the granting of an iiijunctiini 
 
 judgmeiil was entered had heen ])rocuri'd from wiiere tiie \alue of the inheritance is in jcopaiily 
 
 him liy di'i'eit and imposition. Xo foundalioii or irreparalile mischief is thre.ilelied. 
 
 wasslioui! for this statiUMil. ( hi an application for an in jnnetion '.<■ /''(('•, 
 
 Jl'lil, that the defendant could not lie re- all the fads should he fully disclosed ! lillt the 
 
 strained, tirst, hecause of ilic falsity of the ma- injunction will not lie dissolveil on the grmui'l 
 
 lerial si itciiicnts on wliicli tlie injunction was of the suppression of facts, if the faits snp- 
 
 iiioxcd toi ; secondly, liecaiise there was an pressed would not have altered the decision of 
 
 adei|iiale Kniidy at law liy setting the jinlg- the .ludge. 
 
 ineiil aside, and, thirdly, liecause the injunction l'rinii|)les on which injunctions are giantcil, 
 
 was not -pcciliially Jiiayed for, and could not and jiractice as to allidavits on apiilicatiniis 
 
 lie granti'd under the general prayer for relief. tiierefor, iliscussed. 
 
 .)/. k'hiiioii V. Mr/h,ii,ia/l, \{. K. I)., ;!4'_>. Hminlfon > i nl . v. liroiru ,1 n/., '.'Old., ■-'iH'. 
 
 s. <ii'anted where remedy at lommou ^ UK Injunction, attaciinient lor breath (if 
 
 Law inadeijuate and impossible for jury to — A rule niti for an attaelnneiit for hreach ot an 
 estimate damaj^es The owner of land leased a injunction need not state that it was granted on 
 parcel to plaiiititl', for the purpose of erecting a l reading the injunction. All that is ncce.s.saiy is 
 lolistor factory, for the term of five jears. Aboiil ! to jiroduce the injunction in Court. 
 a twelvemonth afterwards the defendant, Slieild, , S/mr Mniiiij)irliiriii;i Co. v. I'nirhitid:-. 
 
 ap[)lied for a lease of the .same land for a similar I •'* ^i- •^^ "■• "'• 
 
 pnr])ose. Defendant adinilted that when lie ■ 
 
 had part of the materials on the ground for the; n. Injunction shouid uot require |»arl} 
 
 erection of his building, plaintiff forbade him to to plead — When a i>arty applies to the ("ouit t'l 
 procee<l, and asserted liis right to the land, and prevent another from doing an act which will he 
 
653 
 
 INJUNCTION. 
 
 654 
 
 iiijiirioiiH til hJH riglitH, the iiijiitu tion iiMki'tl for 
 onjjlit not to rt'i|uirf tlie otlitT |)iirty to plcud. 
 Hidniinh V. 7'hfi City of HnliJ'nr, 
 
 iJTlioni.,'2'i7. 
 
 \i. Injunction sought to restrain parties 
 
 from applying for legislation— I'laintiir iliiiimil 
 Id lii^ cntitliMl to .<N(l,<)(XI lioniU on thu Kiuttern 
 Kxtinsidii Kdilwiiy, to l)e Hccured upon the 
 I'ji'tiiii Hraiuli Rnail in the event of its heinj,' 
 tiiiiinffiTed to tiic tlefemliint conipiiny iih u huIi- 
 \i'ii;ii>n in aid of tlit; I'on.struction of Kastern 
 KxttMision. The defendants were a]>plying for 
 l> 1,'islaiioii wliioli HJioidd pi'ovitle that in the 
 cveiil (if the road not lieing operated totheHatis- 
 faitiiiM (if tiie (lOvernor-in-C'ouncil of the I'ro- 
 viiii'i', it HJioidd hei'onie tiie projjerty of the 
 i'nivince free from incundirance. I'laintitt', t'on- 
 ti'Miiing that this woidd invalidate his liondsand 
 was a iireacli of a coniproniisu made with him, 
 smight to restrain the defendants from applying 
 |(ir »<iR'h legislation. 
 
 Ikkl, that, as the purp(jse of the eoncession 
 was tn secure the construction and continued 
 (iporation of the road, and the proposed legisla- 
 tiiiii (.'(intained a proviso that the trustees of the 
 liiiintli(ildcr8 should have notice liefore any for- 
 fuirure of the road, that was all that they had 
 a ligiit to expect, and llie plaintiff was not en- 
 titled to tjie injunction prayed for. 
 
 (Jrijunj V. Caiiaila Im/irofemuil Co. it a/., 
 
 R. E. D., .358. 
 
 13. Injunction to remove water pipes- 
 Highway -Dedication of— Plaintiff prayed an 
 iiijuiiution to compel defendants to remove cer- 
 tain water pipes laid through and under plain- 
 tiffs land, and also claimed (hunages for trespisses 
 ccjiiiniittcd in digging trenches and laying pipes 
 thcrehi. It appeared that the acts complained 
 of were connnitted on property covered by a 
 grant to plaintiff, but close alongside of the 
 travelled tract of a road which had been used 
 iis a public highway for over sixty years. 
 
 No dedication or laying out of the road was 
 proved, but it was shown by the records of the 
 Court of Sessions of the County oi Halifax that 
 proceedings were commenced in 1790 to lay out 
 the roiul, and that the Sessions made an order 
 directing the Sheriff to sunnnon a jury of the 
 next township to lay it out pursuant to law. 
 
 The Act under which the proceedings were 
 taken, 40 (Jeo. 3, c. 1, required that the return of 
 the SherifiF should, after notice to the owners of 
 the nature and course of the road to be made or 
 altered through their lands, be confirmed and 
 recorded by the Court of Sessions, and that the 
 road should be made or altered accordingly, and 
 should " thenceforth become a public highway." 
 
 ' //ltd, that under the lerniH of the Act, the 
 road would not become a public highway luitil 
 the return and notice had been contirnicd and 
 recorded and that in the absence of proof of thid 
 having been done the laying out of the road 
 tinder the statute could not lie presumed, even 
 in view of the long user, merely from the fact 
 that the Court of Sessions had ordered the 
 sheriff to summon a jury for that puriMise. 
 
 Also, that even if the road had been laid out 
 as contended the soil in the highway remained 
 in the owner of the property through which it 
 ran who could maintain trespass for digging up 
 the soil and laying pipes therein. 
 
 I /Vr Wealherbe, .1. — That as no irreparable 
 
 j injury was shown the injunction to compel the 
 removal of the pipes should not be granted, but 
 that the verdict for damages should stand if the 
 trespasses had been committed within the limits 
 of the plaintiff's grant. 
 
 Kmrwy v. Diclc.son, 20 N. S. K., 
 
 I (8R. &G.), 95. 
 
 On (i/i/tia/ to the Sui>rfme Court of Canada, 
 
 \ lit Id, reversing the judgment below, that 
 in the absence fif any evidence of dedication of 
 the road, it must be presumed that the proceed- 
 ings under the statute were rightly taken, and 
 K. could not recover. 
 
 Dickson V. Ktarmy, 14 S. C. R., 743. 
 
 14. Injunction to restrain action at law 
 
 granted — Mitchell sold property to Dodge for 
 ."jiHijfKX), which plaintiffs purchased from Dodge 
 for §'20,000. The property was subject to a 
 mortgage made by Mitchell to Davis, who 
 assigned it to Sterling, and it was agreed 
 ' between Dodge, Mitchell and the plaintiffs that 
 Mitchell should take up the mortgage, and that 
 plaintilfs should pay Dodge §,5000, give him 
 notes for §20(X), and make a mortgage to Mit- 
 chell for the balance of S13,000 payable in instal- 
 ments, for which notes were also given to 
 I Mitchell. In the mortgage made by plaintiff to 
 : Mitchell it was provided that the latter should 
 ' pay off the mortgage made by him and assigned 
 ] to Sterling, and that until it was pivid off Mit- 
 j chell should only receive from plaintiffs the 
 ! difference between the interest due on their 
 mortgage to him and the interest on Mitchell's 
 mortgage assigned to Sterling, and that until 
 Sterling's mortgage was paid, plaintiffs should 
 not be liable for anything but the difference 
 between that mortgage and their mortgage to 
 Mitchell. Defendants Wier and White obtain- 
 ed from Mitchell an assignment of plaintiffs' 
 mortgage and notes as security for a debt, after 
 which Mitchell became insolvent, defendant 
 Graham becoming his assignee, and Sterling's 
 
655 
 
 INJUNCTION. 
 
 656 
 
 inortgagu uivk fDrc^cloncd, ami the propurty f 'Id. 1 
 Wier uixl White olitainoil a re-nalo on giving a 
 bond to tlie aMH'gnec to hid thi' pri>i)i'ity up to 
 l!l|l,.'«N). Wior and White puroliaHud the pro- ; 
 pcrty for SS.VJO, and an action wan Itroiiglit on 
 tho hond, to wliiph tliey pluadod that tin; hal- 1 
 ance iiad heen oro<lit«d to Mituiiull, hy agree- ' 
 menl, on an ac;coiint due White. IMaintinVt paid 
 on tlic mortgage to Mitchell ^'JtJ.V) licttidex inter- 
 OBt, and took up tlirce notcH for 87'»<> each, 
 wiicn Wier and Wiiite oonunenccd action against 
 them to recover tiie amount nf two otiier notes 
 for .^iTiWand 8r)(K» respectively. | 
 
 //i/il, that Wier and White should ho res- 
 trained from further proceeding in tlio action to 
 recover the amount of tiie notes, and from 
 transferring the remaining notes, the ditl'erence 
 between plaintitFs' iiKirtgage and the mortgage 
 assigned to Sterling being more than covered by i 
 the amount paid by plaintitFM and tlie amount ' 
 credited l)y Wier and Wliito to Mitcliell on the 
 purchase at tiie sherilF's sale under foreclosure. 
 ShiihuiH if nl. V. Wiu- tt al., K. E. I)., 173. | 
 
 I 
 
 i 
 
 15. Injunction to restrain Common Law 
 
 BUit — Wliere an injunction fi'om the Kijuity 
 Court was outstamling restraining the plaintiffs 
 from ])roceeding in tiieir Common Law suit, the 
 Court refused t(j extend a 8ul)mission in the 
 Connncm Law suit, applied for to enable the 
 parties to i)roceed with the reference whenever 
 the injunction should be removed. ; 
 
 Oixh&rne. v. Gaiic Hre'on Co., '1 II. & C, .374 ; 
 
 •J C. L. T., 60-2. I 
 
 i 
 
 10. Injunction to restrain sale under exe- 
 
 cution — Conveyance by insolvent of all hia 
 property for benefit of creditors — Effect aa ' 
 respects judgment subsequently recorded — j 
 Injunction to restrain sale under judgment — 
 Cloud on title— Apparently good title— Rogers 
 & Co., on the 10th of May, assigned all their 
 individual and partnership property, both real 
 and personal, to a trustee, for the general benefit 
 of tlieir creditors, and executed at the .same 
 time a deed in trust to him of their lands, which 
 was recorded l'2th of May. Defendants entered 
 a judgment against Rogers & Co. on the l.")th of 
 May, which was recorded the next day. On 
 the 17th of May a writ of attachment was issued 
 against Rogers & Co. under the Insolvent Act of 
 187.'), and in June creditors' assignees were ap- 
 pointed, to whom the trustee subsequently con- 
 veyed the lands, which were afterwards sold to 
 certain of the plaintiffs, who conveyed to others 
 of the plaintiffs in trust to secure the purchase 
 money to the creditors' assignees. Defendants 
 proceeded to advertise and sell the land under 
 
 execution, and plaintiffs nougiit to restrain tiiein 
 by injunction. 
 
 Ifild, that as between the parties to it, ili« 
 deed from Rogers & Co. to tiie trustee was valid, 
 and that it wan open to the creilitors' asMigni'i>.s 
 if they considered it for the benefit of tlie estate 
 to have the jiroperty conveyed to them hy tiic 
 trustee ; that the judgment creditor nevir 
 obtained any lien on tiie property under his 
 judgment, but that, altlioiigli tiie Ctmrt wouM 
 restrain a judgment creditor from selling prop- 
 erty even under a judgment tliat would I'rmvcy 
 no title to the purchaser, and where the creditor 
 only proposed to sell the right, title and interest 
 of tlie judgment debtor, yet it was incuinliciit 
 on the plaintiffs to show tliat tlie cloud on tlicir 
 title was caused by what was apparently a good 
 title, though in fact defective, and that in the 
 present case defendants had not an apparently 
 good title, as the first deed from Rogers i Co. 
 appeared to convey the title. 
 
 Weatherbe, J. , roiinifriinj, limited his opinion, 
 with reference to tlie effect of the deeil from 
 Rogers & Co. to the trustee, to the case of a 
 naked conveyance by the insolvent for the bene- 
 fit of creditors. 
 
 Johii'< if al. V. liarhonr ef al., .3 R. & (1., 4.'{; 
 
 'JC. L. T.,t;o;i. 
 
 17. Injunction to stay sale until validity 
 
 of judgment settled —.Sanderson, one of tlie 
 defendants, liad been obtaining discounts fioin 
 the Hank of Nova .Scotia on paper indorsed hy 
 one or more persons, and the agent of the bank 
 becoming dissatisfied on account of the iuuh'M'oih 
 renewals, and referring to the possibility of the 
 indorsers being called upon to take up the 
 notes, .Sanderson, in .luly 18.)9, gave the Hank 
 a judgment for the exact amount then due on 
 the notes. In September l.SdO, the plaiiititl':* re. 
 covered judgments against .Sanderson, and ii 
 numlier of other judgments were entered up 
 against him by parties who were ma<le defen- 
 dants in the present suit. Sanderson continueil 
 'to get notes discounted until 1874 when his 
 affairs became embarrassed, and the bank 
 ceased to discount his paper. The notes tlien 
 at the Bank were taken up by the indorsers, 
 and Sanderson ceased to be indebted to tlie 
 Rank. In 1874, the parties who were then in- 
 dorsers on .Sanderson's paper discounted at the 
 Bank took proceedings to revive the judgment, 
 and issued and delivered to the Sheriff an 
 execution, with instructions to levy on .Sander- 
 son's real estate. 
 
 Held, that the judgment having been taken 
 for a specified sum ascertained at the time to lie 
 due the Bank and which had been long since 
 paid, neither the Bank nor the indorsers of 
 
657 
 
 INJUNCTION. 
 
 G58 
 
 8Anil(TH(in'H ])apor roiilil iniiko it availalilo for 
 uny HiiliNt'i|iii>iit lial>ilitii!H, SiiiiultanooiiHly with 
 iliu iMHuiiig of tlio cxuiMition ut the unit of tlio 
 ISaiik, tlic olliur itvfenilaiitN, whoNe jiiilginuuts 
 wpri> Hiii>HR<|UCiit tn tliono of thv plaintiirM, ha-l 
 pxt-ciilions placed in tiie SliurilV'H IuiikIh l)y Mr. 
 (irantliiiiii, wlio wiw tlio attonivy liy whom all 
 the (!Xi!ctitioiiH wort! iNHiU'il, with iiiHtructioiiH to 
 Invy for thi> ninouiit of tlu!in on Samlt'rHon'H I'oal 
 ORtate, anil tho land was ail vert iHod l>y the .SlioritT 
 h» one sale, tiic advertinetnent huing huaded in 
 all the cauHeHof the HevuralilefendantM, including 
 the Hank. 
 
 JIi/il, that under the circuinstancoH, the sale 
 Imnn under the direction of (irantliain, the attor- 
 ney in all the causes, the plaintittH were juMtitieil 
 in making the incuinhrancers HiihHeijiient to the 
 liiwik defendants in this suit. Otheiwise, possi- 
 Illy, if these MuliHei|uent iiicumhrancors hail not 
 connected themselves with the Hank, hut had 
 advertised sales under their respectivii judg- 
 ments, suhjoct to prior incumlirances. 
 
 Injunction to stay the sale until the validity, 
 or otherwise, of tho Judgment at tho suit of the 
 Dank was settled, continued, hut only on the 
 condition tliat the plaintitTs sho\ild give an 
 nndcrtaking to hring on tho case for trial at the 
 next term of the Supreme Court in tho County, 
 or that their hill bo dismissed. 
 
 Costs decreed against tho Hank, Imt not as 
 against the other defendants. 
 
 Moody rl nl. v. lianl- of Xovn Scolia it nl., 
 
 R. K. I)., 1-J9. 
 
 18. Injunction, when granted -The Court 
 
 will oidy grant a writ of injunction in ca.ses of 
 extreme necessity, where redress cannot he oh- 
 taincd in the usual legal mode. 
 Thi'. City of Halifax v. 77ii^ Nova Scotia EUctrii' 
 Ttkijraph Co., Cochran, 83. 
 
 1ft. LicenHe to search for minerals- 
 Practice as to — Injunction refused — Five li- 
 censes to aearch for minerals other than gold were 
 granted to the relators, all over the same area, 
 according to the practice adopted by tlie Mines 
 ■Office, under sees. 86 and 91 of cap. 9, 4th R. .S., 
 the first to expire 21st May, 1874, and the others 
 at intervals of about one, two, three and four 
 years respectively thereafter, the licenses having 
 been all granted on or about the same ilate. On 
 the 'JSth May, 1877, two days after the expira- 
 tion of the relators' fourth license to search 
 ■defendants having a license to search over an 
 area overlying in part the area covered by rela- 
 tors' licenses to search, applied for and obtained 
 a license to work one square mile partially over- 
 lying and including within its boundaries the 
 
 area under license to search to the relators, 'i'ho 
 latter applied for an injunction to restrain tlio 
 ilofcndaiitM from interfering, which was refused 
 by the Ki|uity Court on tho ground that over 
 tho area first aliovo referred to, which contained 
 only four and a ijuarter sijuaro miles, not more 
 than four valid licenses to search could li<- granted 
 —that the relators' fifth licenst' to search expiring 
 .May 'J7th, 1878, was invalid, and that on tho 
 ■J8ih May, 1877, there was no obstacle to tho 
 defendants obtaining their license to work. 
 On appeal from this decision the Court, 
 Ihfil, that tho practice of tho otlico was wrong 
 
 ■ in granting more than one license tn search with 
 right of renewal to the same party over the 
 .same area -that on this ground tho license to 
 search relied on by relators was invalid, and that 
 without respect to defendants' title the injunction 
 must be refused but without costs, as both piir- 
 ties had acted under an erroneous view of I la- 
 law. 
 
 , Attorney fie.mral v. Fraser, 3 R. iS: ('., ',i't\. 
 
 'iO. Material allegations on which grant- 
 ed denied by defendant -Injunction dissolved 
 on the ground, iiiti v alia, that all the material 
 allegations on which the writ was granted were 
 denied by defendants. 
 I ^f^•h'ay\■. Sutherland et ai, R. K. 1)., ;WJ. 
 
 '21. Practlce-An injunction must be spe* 
 
 citically prayed for, and will not be granted 
 under the general prayer for relief. 
 
 M>-Kinnon v. McJ)ou;/ull, R. K. D., 34'J. 
 
 22. Preservation of rights of party apply- 
 
 , ing for till determination of suit— No injury 
 from injunction to other party— /Vr Thomp- 
 son, .1. — The injunction a])plieil for seems neces- 
 j sary to tho preservation of tho right in dispute, 
 I i. e., the right of the plaintiff to obtain the 
 j insurance moneys under his so called e((uitable 
 : assignment.''. Such being the case I cannot 
 ' refuse it, as I was urged to do, on the ground 
 j that although that right might be lost, tho 
 ] plaintiff would not be wholly without remedy, 
 i nor do I think I can refu.se it on the other 
 ground that plaintiff cannot recover in this suit 
 for want of such an equitable assignment as will 
 sustain his bill. The time to determine this 
 latter point is at the hearing, and until it is 
 determined against the plaintiff, he has a right 
 to have the thing in controversy preserved. 
 Moreover I can see no injury which will result 
 from the injunction to the defendants who 
 oppose it, even if their defence should prevail, 
 excepting a delay, which need be but a very 
 short delay, for the suit can be brought to a 
 
659 
 
 INJUNCTION. 
 
 ooo 
 
 hi'itrini^ iiliiiont ut otico. On tho (ithor hand tliu 
 ivMiill cif rt'fiiKiii^ till' injiiiiction timy lie u very 
 Hfiidiitt iiri'jiulirf to tho pliiinlitrH lightn. 
 
 Thu UHiiiil interlocutory injunction or ri-ntruin- 
 in^ onltr, will tiivrvforu l)v t^runtfil. Costn will 
 
 uliiilc CVI'llt, 
 
 W'o/j'l V. Jolli X it III. \ 
 
 III. V. 1 1 ml, 
 Unrntorliil. Filtd Su/in mi Coitrf, it' //(i/ijhjc, 
 
 ill IIIIIMI 1,1,17.1(1. 
 
 *J3. KeniHcd where adequate legal remedy 
 
 at Cummon Law -I'liiiniiiruM uKHinnccof K. W. 
 CliipiiiaM, uiiilcr the liiNnlvcnt Act, olitiiincil an 
 • irdiT to ri'Htiain tlic ShcrilF of AnnupoliM from 
 KcUing under execution pertionul property of tlie 
 iuHolviint, which he chiiined iiad |)UNHed tu liini 
 under theaHHi({nnient, Huid property liaving heen 
 allowed hy the uHHiguee to remain in tiie handN 
 of thu iuMolvent, who had reniuvud it to Annapo- 
 liB, where it was levied iijMin. 
 
 //i/il, that aH the remedy of the anBignee by 
 action at law, a.sxuming the levy and propoHed 
 wile to l)e unjuHtitialile, was complete, the re- 
 nt raining order niUHt he diMcharged. 
 
 Tniii/i V. lioiiiii/l it a!., K. K. I)., INO, 
 
 24 . Refused where adequate legal remedy 
 
 at Common Law— I'laintilf a])plied for an in- 
 junction to restrain defendant fioni Helling or 
 otherwise diMpouing of lumber, of which he 
 claimed to be owner under an alleged purchase 
 from the company, the validity of whicli wiuB 
 disputed. The injunction wad refused, plaintiff 
 having an adetjuate legal remedy at Common 
 Law by action for damages. 
 
 Mortn V. Hhdhnrm Liimhir Co. flat., 
 
 R. K. 1)., 134. 
 
 m. Restraining defendant fk'om working 
 
 mining areas— What misrepresentations in 
 application for injunction will invalidate— 
 Thu defendant, Cameron, agreed to sell to 
 plaintiff a farm iu Charlotteburg, Ontario, for 
 f4r>,(K»0 subject to a mortgage for ?! 4,000. The 
 plaintiff, in consideration, was to assume the 
 814,000 mortgage, and convey certain gold 
 mining areas and other property to defendant 
 at the price of $20,000, and for the balance of 
 Sll,(KX) he was to convey to defendant his 
 dwelling house at Truro. The defendant ob- 
 tained a transfer of the areas under circumstances 
 as to which the affidavits were contradictory 
 but it was uncontradicted that the title to the 
 real estate which he was to convey to plaintiff 
 was encumbered to the extent of upwards of 
 $15,000 more than had been represented. Plain- 
 tiff having obtained an injunction to restrain 
 defendants from working the areas, 
 
 I //«/>/, that, aKMuming the utatements of the 
 i defemlant to be true as to the way in which hu 
 
 obtained the transfer, there was a serioiiN i|ueM* 
 
 ticm to bo Hidmiitted to the Court, whether the 
 i defendant wan justitied in recording it and 
 
 claiming the areas, and thai the injunttina 
 
 could not be dissolved. 
 
 J/i/il, further, that the injunction wonM not 
 
 be disturbed on account of^miHrepreHentalioUM Iu 
 I tl e alhdavits on which it was obtained unlexit 
 '■ the case were such that if the facts had been 
 
 stated accurately, the injnnctiim would have 
 
 been refused. 
 
 Ciifinj V. CnnuroH it «/., K. K. I)., 3"0, 
 
 26. Restraining f^om permitting waste 
 
 water to flow on plaintitl's property, &c - 
 Where the ilefemhiiit had no drain leading from 
 his jircinises to the common sewer on the street, 
 and the plaint itf jjreveiited all access to a drain 
 (Ml Ids own pro|)erty through which the water 
 might (low to the sewer from defendant's pro- 
 perty, but ilefendant proved no title or right 
 to use such tlrain, the Court granted an injunction 
 to restrain defendant not only from permitting 
 his waste water to (low on phiintilV's property, 
 but from receiving water from the city water 
 works until a suitable drain was constructed, 
 
 i the evidence showing that the introduction of 
 such supply, in the absence of a suitalde drain, 
 
 , occasioned an overflow on jilaintif! "s premises. 
 
 I Mott V. /iiirns, K. K. D., l.T). 
 
 27. Restraining order — Party applying 
 
 for must disclose material facts— Preliminary 
 injunction— Court influenced in doubtf\il cases 
 by relative convenience or inconvenience to- 
 parties — Plaintiff applied tx jtarte and obtained 
 an order to restrain the defendants from laying 
 . water pipes through her land for the purpose of 
 supplying the Provincial Asylum for the In.sar.o. 
 The facts uiwn which the order was obtained 
 were confined to a statement that defendants had 
 entered upon land of which plaintiff had been in 
 possession for several years, and had dug a 
 trench for the purjKJse of laying water pii)e8 for 
 the purpose mentioned ; that defendants claimed 
 to be acting under the authority of the Provincial 
 Government, but the Government had no right 
 to authorize said acts, nor had the defendants, 
 and the same were unwarranted ; that if the 
 work was not restrained, plaintiff would suffer 
 irreparable injury, as it was to be permanent, 
 and defendants were not able to respond to 
 damages to any considerable amount. It wa» 
 not disclosed, but subsequently appeared that 
 the land through which defendants were pro- 
 ceeding to lay the pipes had been used for uiany 
 
661 
 
 INLAND REVENUE ACT. 
 
 661 
 
 yean m a ptiMic highway, iiml that pipe* hml 
 Ih'im laid llicrriti twi-iity-tivo ywiPM pruvinimly 
 fur the Willie- purpoHit, iintl tliu tlieii priipriutorit 
 liHil Ix't'ii c'onipi'iiMut«!il for tho (hiniu(|(f. 
 
 //>/'/, nil iippcul froin IV ilui'iNidii of 'rhoinpNon, 
 .1., iliHMolviiii^ till' injiinctioii, tliiit tliv oiniHHioii 
 of pliiiiitltrH I'oiiiiNi-l, whi-n ho olituiiiotl the 
 ri'BtriiiiiiiiK onh'r, to lirin^ licfore tJio Court thu 
 cMHti'iici' of tlic hi^liwuy and itH ruliitioii to tiiu 
 injury roinpliiiiu'il of, wiih Hiitllciunt ground for 
 iliKiiiiNHing thu appuul. 
 
 Simh/i, that a liiHclomiro of the faotn referreil 
 to vMiiild havtt duttTiiiincd thu original applica- 
 tioiiiigaiiiHt till' pliiintitr. 
 
 Ill doulitful LiiHt'8 tho Court will gt'iicrally lio 
 ^iivi'riu'(l ii. granting or withholding a preliniiii- 
 iiry iiijiimtion liy a conHidi-ration of thu rt'lativu 
 riiiivt iiii'iu'i' or iia'onvcnieiiuo which may ruault 
 to the particM. 
 
 Kiuriiiy V, Dicknon O a/., H. & (1., (!') ; 
 
 lie. L. v., 140. 
 
 On (i/ijiKil to lh> Sii/iniiu. Court of Vaumla, 
 
 Ihhl, that tho order of the Siipitnin Court 
 (if Nova Si'otia was not one from which an appeal 
 world lie. 
 
 Appeal (|uaiihed with cotitx. 
 
 Kiantnj v. iJlck-oii, Ciis. Digest, '2'y(t. 
 
 '28. Restraining sale of Hsb- Plaintiffs 
 
 iliilined to lie entitled to tish in a certain licrth, 
 iiiuler regulations made hy tho SeKsioiiH on the 
 iiiithority of an Act of the LegiHlature. Under 
 the evidence t)ie Court inferred that ilefendants 
 were authorized by the plaintiiTs to shoot their 
 siiiie, plaintiffs to have half the tish caught, 
 and having done so the defendants secured a 
 catch of tish, of which plaintiffs claimed half 
 under the agreement. t 
 
 ffilil, that the plaintifTs were entitled to half 
 the tish caught, and that the relief which they 
 souglit, namely, that defendants should deliver 
 to them their share of the proceeds or account 
 to them, and in the meantime should be , 
 restrained from selling, etc., was properly 
 sought in this Court. 
 
 Doijtrty tt al, V. Power et at., R. E. D., 419. 
 
 29. Restraining sale under mortgage not 
 
 yet due— Terms— Where trustees, having power 
 to sell a mining property conveyed to them by 
 way of mortgage to secure the payment of 
 interest on bonds issued by the Mining Com- 
 pany, the principal of which was not yet due, 
 advertised the property for sal 3, instead of pro- 
 ceeding by way of foreclosure, and the plaintifTs, 
 who had the equity of redemption, although 
 aware of the intention to sell, delayed seeking 
 the information necessary to enable them to 
 prevent a sale to their injury, and applied for 
 
 1 an injunction only two day* before tho day o( 
 Hale the Court granted thu iujunctioii upon 
 
 I payment by the mortgagors of tho interest on 
 
 I the oiitNtanding boinlH, and their undertaking to 
 [Miy the fxpeuNeii incurred in preparing for tho 
 sale, 
 
 j Woofl tt al. v. Ifnr> ,1 n/., K. K. I).. 'JOl. 
 
 30. Shares- Right to transfer- Insolvency 
 
 —Perpetual injunction to restrain suit- I'lain- 
 titr, the holder of a niiniberof shares in the Hank 
 of Liveipool, sold tiio same to S. and forwarded 
 to him a power of attorney authorizing thu 
 registry of the transfer. At the same time ho 
 forwarded tn tho manager of the bank his stock 
 certitioates to be cancelled on the transfer being 
 registered and notilied the bank of the transfer. 
 8. paid tho consideration for thu shares, and 
 received the transfer, which he forwarded to thu 
 manager whom he reifuested ami authorized to 
 register his acceptance. The bank declined to 
 register thu transfer until after payment of a cer- 
 tain loan obtained by the Bank of Liverpool from 
 the Itank of Xova Scotia, which had been pro- 
 cured in pursuance of a resolution jiassed at a 
 meeting of shareholders at which plaintiff was 
 present, ami which purported to bind the share- 
 hidders to hold their shares without assigning 
 them until the principal and interest due on 
 such loan had been fully paid. In the mean- 
 while tho bank retained tho papers, promising 
 that when the loan was repaid the transfer 
 wouhl be duly entered. Subse(|uently the Haak 
 of Liverpo<d became insolvent and assigned to 
 the Hank of Nova IScotia. 
 
 H</(1, on the authority of Smith v. Thi' Hank 
 of Xoiu Srotin, 3 S. C. R , ")'>S, there being 
 evidence that tho loan wa.s affected on other 
 security than the resolution, and that the resolu- 
 tion was never acted upon, that the plaintiff was 
 not deprived by the passage of the resolution of 
 the legal right to transfer his shares and to have 
 the transfer registered in the books of the bank. 
 Bams V. The Hank ofXora Scotia, 
 
 6 R. & «., 254 ; 6 C. L. T., 443. 
 
 31. Suppression of material fiicts- In- 
 junction dissolved on tho ground of suppression 
 of material facts, and because the case on which 
 it was obtained was fully met by defendant. 
 
 Gnffin et al. v. Taylor, R. E. D., 427. 
 
 INLAND REVENUE ACT. 
 Pleading the general issue— Necessity of 
 
 such plea— To an action brought against defen- 
 dant, an auctioneer in the city of Halifax, to 
 
663 
 
 INSOLVENCY. 
 
 664 
 
 recover damages for the alleged wrongful sale of 
 a horse, waggon and harness, seized by officers 
 of the Inland Revenue while being usei'. for the 
 purpose of removing a quantity of spirits unlaw- 
 fully manufactured and liable to excise duties, 
 defendant pleaded twenty-nine grounds of de- 
 fence which were expanded at great length. 
 
 The Judge of the County Court for District 
 No. 1 holding that, under the Customs Act, 
 Acts of 1885, c. 12, s. 2*28, and the Inland 
 Revenue Act of 1883, c. 14, s. 7'2, the defendant 
 was bound to plead the general issue and give 
 the general subject matter in evidence, and that 
 the defences as pleaded were unnecessarily pro- 
 lix, and were unnecessary and embarrassing, 
 made an order directing that all the pleas be 
 struck out with the exception of tlie 4th, wliich 
 denied the allegations and issues in the plain- 
 tiff's statement of claim, and which he held to 
 be equivalent to the general issue. 
 
 Iltkl, that the order must be set aside with 
 costs. 
 
 McDonald v. Clarke, 20 X. S. D., 
 
 (8R. &G.), 254; 
 
 8 C. L. T., 401. 
 
 INSOLVENCY. 
 
 1. Act for Relief of Insolvent Debtors Is 
 
 intra rirei: — The Act of the Provincial Legisla- 
 ture 1878, ch. 8, providing for the relief of 
 debtors imprisoned on process out of the County 
 Courts is not idtra vires. 
 
 An action was tried in the County Court in 
 February, 1878, before the passage of the Act, 
 against Commissioners, for discharging a debtor 
 imprisoned on process out of the County Court, 
 but the judgment which was in plaintiff's favor 
 with eight dollars damages was not pronounced 
 until December 1878, the Act having passed in 
 April, 1878, one clause of which provided that 
 no action in any Court should be taken or sus- 
 tained by reason of proceedings theretofore 
 taken for the relief of such debtors being illegal, 
 invalid or void. An appeal from this judgment 
 was sustained with costs, each party paying his 
 own costs in the Court below. 
 
 Johnston v. Poyntz et a/., 2 R. & G., 19,S ; 
 
 1 C. L. T., 706. 
 
 2. Appeal — Insolvent debtor process— 
 
 Appeal from decision of Commissioners where 
 no County Court Judge in the County held to 
 lie to the Court of Sessions — An appeal from a 
 decision of Commissioners refusing to discharge 
 an insolvent debtor was taKen to the Court of 
 Sessions on the ground that there was no County 
 
 Court Judge in the County where the debtor was 
 confined. The Justices having refused to hear 
 the appeal, on the ground that they had •" i juris- 
 diction and an order having been appliea . jr to 
 compel them to do so. 
 
 Held, that the appeal was properly taken- 
 The debtor was held under an execution issued 
 out of the Supreme Court. Construction of 
 chapter 118 Revised Statutes (5th Series) section 
 
 27. 
 
 Armntrowj v. Trefney, 7 R. & G. 19. 
 
 3. Appeal under Insolvent Act of 1875 
 
 quashed, appellant not having " adopted pro- 
 ceedings on the appeal " — An order was miule 
 by the County Court Judge in an insolvent 
 matter under the Act of 1875, for the purpose 
 of appealing from which the insolvent, witiiin 
 eight days from the making of the order, filed a 
 bond approved of by the Judge, and o'hlaiued 
 from him an order giving leave to appeal to tills 
 Court. No further proceedings were taken in 
 this Court within the eight days. 
 
 Held, that the appellant had not " adopted 
 proceedings on tlie said appeal " within tlie 
 meaning of section 128 of the Act and that tlie 
 alleged appeal must be quashed. 
 
 In re David Buckley, 3 R. & G., l.')4. 
 
 4. Appeal In cases under Indigent Debt- 
 
 '. ors' Act — 
 
 j See APPEAL, IV. 
 
 I 5. Appointment of assignee — Invalidity 
 
 of, how attacked — Plaintiff, as creditor's assig- 
 nee, sought to set aside a judgment given l)y 
 i confession by two alleged co-partners, as made 
 1 in contemplation of insolvency. Defendant de- 
 i nied that plaintiff was assignee, and it appeared 
 ! that at the meeting of creditors there was only 
 I one person who had fileil a claim, and his claim 
 ] was without a voucher, yet, instead of abandon- 
 ing the meeting as a failure and calling another, 
 giving due notice, the meeting adjourned to 
 another day, on which the plaintiff was appointed 
 assignee. 
 
 Held, that the appointment was invalid, that 
 the proceedings could be impugued witliout 
 going into the Insolvency Court, and that tlie 
 defendant's denial that plaintiff was assignee as 
 alleged obliged him to prove it. 
 
 BeiUair v. Gilliatt, 3 N. S. D., 525, and referred 
 to in 1 R. & C, 264, questioned. 
 
 BroioH V. I'earmaii, R. E. D., 491. 
 
 6. Assignee's commission— The Assignee 
 
 in his final account charged commissions oQ 
 $7,400, the gross proceeds of real estate sold 
 
665 
 
 INSOLVENCY. 
 
 6G6 
 
 under foreclosure, the whole of which, with the 
 exception of S14 burplua, wiis paid over by the 
 Slieriff to tiio Attorney of the mortgagee. 
 
 //(('(/, tluit tlie asHignce was not entitled to 
 commission on the S7, 400 and that the judgment 
 on tlie order mn must be reversed. 
 
 In re Estate ofOruiU, Insolvent, 3 R. & C, 5.38. 
 
 7. Assignee of Indigent Debtor a trustee— 
 
 An assignment by the mortgagor of his e(juity 
 of redemption, under the Insolvent Debtor's 
 Act, maives his assignee a trustee for him, and 
 leaves in him a renuviuing interest, in the nature 
 of an eijuity of redemption, suttiuient to entitle 
 liii7i to be made a party to u foreclosure of the 
 mortgaged premises. 
 
 Mayhew v. Fen, James, 108. : 
 
 8. Assignee — Removal of— Power of 
 
 Judge — Tlie power given to the Court or a 
 Judge by section 125 of the Insolvent Act of 
 1875, to remove an assignee, is confined to the 
 case of an assignee disobeying an order made i 
 under said section, and does not extend to otlier 
 miscfmduct on the part of the assignee, the gen- 
 eral power of removal being committed to the i 
 creditors, under section 29. ■ 
 
 The Judge of the County Court removed an 
 assignee, and it appeared that an agreement had ; 
 been made without the knowledge of the cred- 1 
 iters generally, under which the assignee con- 1 
 veyed the estate to his father and co-partner, ' 
 the partnership guaranteeing thirty-three and | 
 one-third per cent, of the defendant's composi- 
 tion of forty per cent. , and receiving from the 
 insolvents one thousand dollars for their guar- 
 antee, the father to hold the estate as security 
 for payment of the §1,000. The Court reversed 
 the decision of the County Court on the ground 
 above indicated, but refused the assignee the 
 coats of the appeal and argument anu of the 
 proceedings in the County Court. 
 
 James, .J., dissenting »» to t\ie costs. 
 In re Estate of Ecans, ex parte Falconer, 
 
 1 R. &G.,326. 
 
 9. Assignee— Re*openlng order for dis- 
 charge of— The assignee in his final account 
 charged commission on §7,400 the gross proceeds 
 of real estate sold under foreclosure, the whole 
 of which with the exception of $14 surplus was 
 paid over by the SheriflF to the attorney of the 
 mortgagee. The order for the assignee's dis- 
 charge passed December 20th, 1877, and on Janu- 
 ary 3rd, 1878, the County Court Judge granted an 
 order nisi to re-open the order for discharge in 
 order that this sum of $7,400 should be deducted 
 from the amount on which assignee's commission 
 
 was charged. The Judge after argument dis- 
 charged the order nisi on the ground tliat the 
 eight days for appeal from the order discharging 
 the assignee having expired, the assignee was be- 
 yond the summary jurisdiction of the Court. 
 
 Held, that, apart from any legislative act 
 conf'.-rring it, the Judge liad power to re-open the 
 order for the discharge of the assignee for tiie 
 purpose of reducing his charge ; tiiat in addition 
 the Judge had the power under sec. 28, sub-sec. 
 /*, of the Insolvent Act of 1875. 
 In re Estate of Qrant, Insolvent, 3 R. & C. , 538. 
 
 10. Assignee under Insolvent Debtors' 
 
 Act, liability of — Surplus proceeds — Adverse 
 possession — In order to make an assignee un- 
 der tlu) Insolvent Debtors' Act liable for not 
 collecting the assigned debts, there must be dis- 
 tinct proof of neglect, or of positive forl>earance 
 on his part toward the debtors, without the 
 concurrence of tlie assignor, and of consequent 
 loss ; and also, that the debts assigned were of 
 real value. 
 
 The claim of an assignee of the equity of re- 
 demption in mortgaged premises for surplus pro- 
 ceeds remaining after the sale of premises on 
 foreclosure of the mortgage, is not barred by a 
 twenty years' possession of the premises by the 
 assignor, who claimed under the mortgagor, the 
 mortgagee havirig by the foreclosure suit asser- 
 ted a paramount claim to the possession, and the 
 premises being sold under that claim. 
 
 Sfmbk, the possession of the assignor of an 
 equity of redemption is not adverse to the as- 
 signee, unless shown to be in opposition to his 
 will. 
 
 Collins V. Reid et al., 2 Old., 252. 
 
 11. Assignment — Attachment under In* 
 
 solvent Act — Insolvent Act of 1869 inlni vires 
 — Sheriff, action against — Where the defendant, 
 as Sheriff, levied on certain goods under execu- 
 tions, and a writ of attachment in bankruptcy 
 was afterwards issued against the execution 
 debtor, but the Sheriff, after the issue of the 
 attachment, proceeded to sell under the execu- 
 tions and paid over the proceeds to the execution 
 creditors, the Court refused to set aside a verdict 
 against the Sheriff at the suit of the assignee for 
 improperly selling the goods, etc., and for his 
 failure to duly execute the writ of attachment 
 and hand over the property of the insolvent to 
 the assignee. 
 
 Held, that the return to the writ of attach- 
 ment did not estop the plaintiff in the present 
 suit from saying that the same had not been 
 duly executed. 
 
 Held, also, that a verdict for the net proceeds 
 
667 
 
 INSOLVENCY. 
 
 668 
 
 of the sale witli 1*2 per cent luUled, was not ex- was fileil witli tlic assignee of service of copy 
 cessive, the evidence justifying tlie tinding of on tiie ulainiunt. Insolvent Act of IH7.">, sec. 95. 
 the jury tiiat t!ie goods would have hrougiit that 
 amount if properly sold. Section TjU of the 
 Insolvent .-Xct, 1S09, is iiih-n rirex. 
 
 In ri: Morion (Colli, « daim), '.? R. & (J., 174 ; 
 
 1 C. L. T. 664. 
 
 Kiiiiny, A'<'<>tinee, v. Dwlman, "2 R. & C, 19. 
 
 12. Attachment under Inoolvent Act, 1875 
 
 —Affidavit for— Requisites of— Plaintiff 's atK- 
 davit for the issue of a writ of attauhniunt under 
 the Insolvent Act of 1S7."), followed the require- 
 ments of the .Statute, section !), setting out as 
 grounds for the Inilief that defendant was insol- 
 vent, the fact that he had called a meeting to 
 compoiind with his creilitors, had exhihited a 
 statement showing his iuahility to meet his lia- 
 hilities, and had otherwise acknowledged his 
 insolvency, (sec. .'J, a.) 
 
 Hthl, reversing the decision of Johnstone, J., 
 that the atiidavit was sutHcient. 
 
 Foster V. lioome, 3 R. & C, 344. 
 
 13. Certificate or discharge pleaded as 
 
 defence to action — Cannot be attacked for 
 irregularity — In an action to recover a debt 
 defendant produced a certificate of his discharge 
 as a JMinkrupt. 
 
 lli'ld, that it was not competent to the plain- 
 
 17. Claim on Insolvent's estate — Effect 
 
 of, on lien —1), X. Shaw stored a lot of tish wiili 
 defundants, which he afterwards sold to Riclmnl- 
 son giving him a memo, headed " \V. M. Richard- 
 son bought of I). N, Shaw," signed by the latter. 
 Richardson paid half in cash and gave Shaw a 
 note for the balance which was indorsed liy 
 defendants and retired by them at maturity. 
 
 Richardson after the sale became insolvent, and 
 plaintiff, his assignee, produced at the tirst meet- 
 ing a memo, of iwsets the tirat item of which was 
 "2.S6 bbls of mackerel stored at Black Brothers, " 
 defendants. One of the defendants attended the 
 meeting and saw this memo, remarking to tho.se 
 
 present that he was not aware of any fish of 
 
 Richardson's stored with them, but he gave no 
 
 such intimation to the assignee or insiNictor, and 
 
 long after the defendants made a claim on the 
 
 estate for the amount of the note, stating tliiU 
 
 they held no security, and a dividend was paid 
 
 them. The assignee having brought an action 
 
 of trover for the fish recovered a verdict, 
 
 HM, that the defendants had no right to 
 tiff in this action to shew irregularity in the pro- I ^^^^^i„ ^,,^ ^^^^ ,^^ ,^,,^i„, ^j ,i^,^ ^^^.j^^^ ,^^^,^ 
 
 ceedings in the Insolvent Court or to attack the , ^^^ „p^ ^,„i ^,,^t,,y holding the note and claiming 
 
 discharge on the ground that defen.lant was not j^^ the account on the insolvent estate they 
 
 a trader, an.l therefore not a legitimate subject . „.„„i,, ,„^^.^ j^^^ ^„ ^jg,,^ ^^ ^^^^^j,^ possession 
 
 of the jurisdiction exercised. 
 
 Ihulair v. (lilliatt, 3 N. S. I)., 525. 
 Questioned in Brown v. Ptarman, R. E. l').,491. 
 
 14. City of Hallflix no lien for taxes under 
 
 Act — The City of Halifax has no preferential 
 claim for taxes against the assignee under the 
 Insolvent Act of 1875. 
 
 In re Frederick B. K. Alarter, 3 R. & G., 412. 
 
 of the fish if they ever had any such right. 
 Hart, Anxiifnee, v. Troop tt a/., 
 
 2R. &(J.,351; 
 2C. L. T.,95. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, Strong, J., dissentiiuj, that the defend- 
 ants had failed to prove the right of property in 
 themselves, upon which they relied at the trial ; 
 I that the property was in the respondent, who 
 
 15. Claimants ranking; on firm and prl- j J'*^. '^ *«""'«* ^''« appellants, no claim for lieu 
 
 vate estates — Claimant held the joint and 
 
 several notes of Ladd, Porter & Co. as a firm, 
 and of each of the two partners in their indi- 
 vidual capacity, as security for a debt due by 
 the firm. 
 
 Held, on appeal from the County Court, that 
 luuler section 84, of the Insolvent Act of 1875, 
 claimants were warranted in ranking on the 
 firm estate and also on the private estates of 
 the co-partners. 
 
 I7i re Ladd, Porter d- Co. , Imolvents, 
 
 Hall et al., Claimants, 1 R. & C, 32. 
 
 16. Claims —Objections to claim against 
 
 insolvent estate dismissed where no evidence 
 
 having l>een set up, a right to the immediate 
 possession of the fish. 2. That as the fish had 
 not l)een stored with appellants by way of 
 security for a debt due by insolvent, appellants 
 could not at the same time make a claim on the 
 estate for the whole amount of insolvent's note, 
 receive a dividend thereon, and retain jwssessiou 
 of the fish. 
 
 Troop et al. v. Hart, 7 S. C. R., 512 ; 
 2 C. L. T., 251. 
 
 18. Commissioners releasing debtor-In 
 
 an action against a Sheriff for releasing a debtor 
 imprisoned under process out of the County 
 Court, an order having been made for his dia- 
 
669 
 
 INSOLVENCY. 
 
 G70 
 
 ulmryu by coininissioiiers for the relief of iiisol- ! sition notes, made for part of the diviileiul on 
 vcMit ilet)tors, the t'oiinty Court decided ill favor the chiinm of J. V. Oava/A for ?l,7iV), sijifned 
 of tlif phiintirt's on tlie ground tiiat previous to hy the other three <!avaza» ami hy Susan 
 Aiiril 4th, 1878, sucii noniniissioncrs hail no Marshall and Thomas W. Chesley, jMiyahle ti> 
 power to relieve in the case of execution out of the order of J. V. (iavaxa, and liy him indorseil 
 thi' County Court. After the argument of the to the plaintifls after maturity, 
 a])iH'al from this decision and before judgment, //(•/'/, McDonald, C. .1. '/mi( m'i'h;/, that J. V. 
 the Act of 187H, "for the relief of debtors im- Cava/u being one of the insolvents, was not one 
 prisoned under process issued out of the County of the creditors covenanted with, and therefore 
 Cimrt'" was jwssed, one clause of which provided was not entitled to composition notes under the 
 tlmt no action should be taken ov •ntstniiitd \>y deed. 
 
 rcajion of such proceedings l^ing void (i. e. ' That although he might have had a right to 
 proceedings Injfore the connnissioncrs taken rank in respect of the •*>1.7.V) against the separate 
 pri'vious to this Act.) estates of his co-insolvents, he had relinijuished 
 
 //'/(/, that this Act was retrospective ami the such right by consenting to the traussfcr of the 
 act inn could not be sustained, but that the assets to Chesley. 
 
 judgment for defendant should be without costs That the notes to be signed by Marshall and 
 as the action had been rightly brought in the Ciiesley were notes to the creditors of all the 
 tir.st instance. insolvents, and not notes from three of them to 
 
 The Court refused to grant a re-argument, ' the other, and that Marshall aiul Chesley were 
 applied for on the grounds that the Act of 1878 only indemnified as to the former, 
 was iilh-a riri-i, ami that it could not I. •; con- That J. V. (iavaza was not one of the creditors 
 strucd retrospectively. who relea.sed their claims by the deed. 
 
 Culli/i tf al. V. Caldwell, 1 R. & (i., 74. : That consecjuently there was no consideration 
 
 for the note sued on, as to Marshall and Chesley. 
 i That inasmuch as the note sued on had been 
 
 19. Composition and discharge -Notes for .lelivered only to the assignee to satisfy a mis- 
 compoaition-Principal and surety- rromis- ^.^ken notion entertained by him, that he was 
 sory notes, making, delivery, and considera- entitled to demand such notes, and with express 
 tion -Finding of County Court Judge on i„J,t,,„^.^i,J,ig Hj^i 1,^ ghould not jwrt with it, 
 facts-.!. V. Cavaza was in imrtnership with | ii,pj,e ^.^^ „„ delivery by the makers as a 
 tliiee other (iavazas previous to 26th February, contract. 
 
 1S77, when he retired, and the others continued , //^,/,/^ ^Ixo, that the weight of evidence estab- 
 tii« business as T. A. (iavaza & Sons. On re- ! ijshcl the defence that the claim of .' V. (iavaza 
 tiling he was to receive S2,00f» for 81,7r><» of f,„. hi^ dividend had been satisfied .y another 
 wliich he took the note of the new firm. Shortly „„te {„ which one Bonnett joined as surety, 
 afterwards all four were put into insolvency on Jx,,lg,nent of County Court reversed and judg- 
 debts of the old firm. J. \. (iavaza, although \ „ie„t entered for defendants, 
 one of the insolvents, prove.l as a creditor on Sttphm tt al. v. Oaraza, 4 R. & G., 514. 
 
 the note for 81,750, and acted as a creditor in all | 
 tlie insolvency proceedings. The insolvents, on 
 
 the 14th November, 1877, offered a compromise ■ 20. Contemplation Of Insolvencf — Deed 
 
 •)f .')() cents on the dollar, payable in 6, 12, and made in— Admissions — Sylvanus Morton, on 
 18 months, and to be secured by the joint and ' the 26tli day of April, 1873, made a deed of pro- 
 8e\end notes of the insolvents, and of .Susan perty without consiileration to his daughter, con- 
 Marsiiall and T. W. Chesley. The offer was ■ tinuing himself in possession of the property 
 accepted and a «leed of composition was made ' until October, 1875, when he failed. Previous 
 and confirmed. By the deed the four insolvents ! to the date of the deed the Liverpool and Acadia 
 
 covenanted to pay the composition and to secure 
 it by such notes, and the creditors released their 
 claims and authorized the assignee to return the 
 estate to the insolvents. The deed was dated 
 .10th Noveml)er, 1 877. On 28th December, 1877, 
 
 Biinks, of one of which Morton was president, 
 and a large shareholder, had suspended ; and a 
 firm in which he was concerned had failed two 
 days before the date of the deed. Previous to 
 the making of the deed, the in.solvent had 
 
 the four (iavazas joined in a request to the ' admitted to a creditor that if certain proceed- 
 assignee to convey the estate to T. \V. Chesley ' ings threatened against him, as president of 
 " to hold the same in trust, to convert the same said Bank, were taken, he would assign. After 
 into money to meet the claims of our creditors \ the making of the deed he was challenged in 
 on promissory notes signed by Mr. Chesley as ' reference to it, and said it was all he could do, 
 our surety." In an action on one of the compo- 1 under the circumstances, to save his property. 
 
G71 
 
 INSOLVENCY. 
 
 crz 
 
 //(/(/, tlmt tlie (li'i'd, having bei'ii inadu at n 
 titnc when tlic gruutor contvinplatuil a stalu of 
 thiiigH tliat iiiiglil rt-Mult in inHolvenuy, an<l which 
 (lid, in fat't, ho reault, must ho sot aside, even 
 had it not lieen shoun tluit the insolvent contin- 
 ued in iKissession, and a few days after inaking 
 the deed iidiiiitted to his creditor tliat it was all 
 he could ilo tt. savt' his jiroiierty. 
 
 Ford, Atsiijitte, v MiUs it uL, R. K. D., 3*23. i 
 
 '21. Contemplation of insolvency — Mort* 
 
 gage made in— Hindering and delaying credi- 
 tors -Howell & .Stewart, in .lune, 1S71, entered 
 into co-partnersliij) as ff>unders, itc, the former 
 to give lii.s skill and ability to the Ini.siness, and 
 the latter, who was a minor, to supply capital 
 and purcliase stock to the extent of $4,000. At i 
 the time of tiie agreement, a lot of land was pur- 
 chased for ji 10,(KK.», on whicii to erect Imildings 
 for the business, but nothing was {mid on account 
 of the purchase money, wiiich wivs secured by a 
 mortgiige. The deed was taken in the name of 
 Howell and Mrs. Ailams, the motiierof Stewart, 
 who advanced tile S4,0(H» to start the business. 
 Although plaintiff contended that this advance 
 Wiuj simply made by Mrs. Adams to her son, 
 there was some evidence to siiow that it was to 
 be repaitl by the partnership. Stewart became 
 of age in February, 1873, and in August of that ' 
 year the partnership was ilissolved, anil a mort- 
 gage made by Howell to Mrs. Adams to secure 
 the amount of her advances. The plaintiff, as- ' 
 signce, sought to have the mortgage declared 
 void, OS made in contemplation of insolvency. 
 At the time of making the mortgage the business 
 Wiis emlxirassed, but the jury found that the 
 mortgage wiw not made in contemplation of in- 
 solvency, and they negatived fraud in the trans- 
 action, though they found that the conveyance 
 had the effect of impeding, obstructing and de- 
 laying creditors. 
 
 The Court upheld the conveyance, 
 
 Franer, AnKujnee., v. Adanis tt al., 
 R. E. D., 2.35. 
 
 22. Contemplation of insolvency— Plead- 
 ing — The plaintiff, an assignee, proceeded by 
 bill in eijuity to procure the cancellation of a 
 conveyance made by the insolvent, charging 
 that the conveyance had been made contrary to 
 the provisions of Insolvent Act of 1809, with 
 intent to give an unjust preference to certain 
 creditors, and fraudulently to impede, obstruct , 
 or delay the creditors in their remedies, and ; 
 with the knowledge of the grantees, or retvson- i 
 able cause on their part to know and believe ! 
 that the grantor was unable to meet his engage- ' 
 ments. The jury found that at the time of 
 
 nmking the conveyance the grantor was in em- 
 barra.MHfd circumstances and unable to nufct lii.s 
 engagements ; but tliey found that the gran- 
 tees did not know, and iiad not reasonalije 
 cause to know or believe tliat such inaliiUty 
 existed, and they negatived any intent fraudu- 
 lently to imjK'de, obstruct or delay the creditors. 
 f/tid, atiirming the judgment of the Kiiuity 
 Court, that tiie jury having found as they had, 
 on ample evidence, the conveyance couhl not 
 be set aside under section 88, of the Acts of 
 1869, and tiuit plaintiff could not attack it 
 under section 89, as having been made in con- 
 tcmplati(m of insolvency, as that was not 
 charged in the bill. 
 
 Forrtut, AxKi'ipiie, v. Afuir ft aJ.,. 
 3R. &C.,4o7. 
 
 23. Contemplation of insolvency — Qucs* 
 
 tion for jury— Plaintiff, as assignee under liie 
 Insolvent Act of 18G9, brought an action of 
 trover against defendant for certain goods trans- 
 ferred by the insolvent thirty-nine days before the 
 assignment, the transfer being attacked in tliis 
 suit as void under section 89 of the Act. Plain- 
 tiff, on the trial, put in evidence a bill of sale 
 made by the insolvent about two months pre- 
 viously to the assignment, for the pur{W)sc of 
 proving contemplation of insolvency on the jxirt 
 of the insolvent at the time of making the 
 transfer in (question. The circumstances con- 
 nected with the said bill of oale were explained 
 so satisfactorily to the mind of the Judge, that 
 he withdrew the consideration of it from the 
 jury. 
 
 Held, on a rule nisi for a new trial, that it' 
 should have been left to the jury to say what 
 effect should be given to it. 
 
 Fomst, Amijnee, v. Almon tt al., 
 
 3R. &C., 110. 
 
 24. Contemplation of insolvency— Section 
 
 133 — Insolvent Act of 1875 — The insolvent 
 T. J. B., being indebted to the Merchants' liank, 
 made an arrangement in pursuance of which he 
 addressed a letter to the Accountant of the Rail- 
 way Department on October '22nd, 1878, instruct- 
 ing him to send any cheque coming to him from 
 the department to the care of McLean, Cashier 
 of the liauk. The cashier received the letter, 
 which was addressed to the insolvent, care of 
 Merchants' Bank, and having removed thechecjue 
 which he indorsed "T. J. B., per G. M., agent. 
 For Merchants' Bank. Guaranteed." G. y~., 
 cashier, drew the money without authority from 
 the insolvent and refused to pay it over. At the 
 time of the arrangement in 1878, T. J. B., wm 
 in insolvent circumstances, with notes lying 
 
C73 
 
 INSOLVENCY. 
 
 674 
 
 overdue at the Merchants' li<ink, hiuI jiulgmunts ' 
 rucoriluil ugiiiiiHt him. 
 
 //»/(/, tliat the arriingfincnt was made in con- 
 tciiiplation uf insolvency, and was witliin the 
 prdvisions of section l.'W of tiic Act of l!S7.'), and ' 
 tlwit the assignee was entitled to the full amount 
 received I'y tiie tlefcndant kvnk with costs. 
 Criiijhton, Anaijnte, v, Mtrchaitl.s' Hank it al., 
 
 3 R. 4 (i., 1.19. 
 
 'i'u Comteniplation of Insol vencj -Trans* 
 
 fer of notes to accommodation indorsera to pro- 
 tect other notes not yet due— l>»dge & Co. 
 
 lifing largely indebted to various creditors, and 
 luiving notes lying overdue at the bank to the 
 amount of .'*7, "<•♦•, with others maturing, took 
 fruiii one Mcl'herson four promissory notes, 
 dated October J6th, ISTO, for lum1)er8oId to him, 
 •hi'cc of which notes, to the aggregate amount 
 of .•?.'{, S.'),'! they indorsed to ilefendants, to 
 meet a note for .'?3,(MX) indor8e<l bj- defendants, 
 dated July'26th, 1x70. The notes so transferred 
 were discounted, and the j)roceeds a|)plied to 
 till' j)ayn)ent of the S;i,0()0 note, leaving a bid 
 aike of .'583."), which was retained by defendants, 
 tliougii nothing was then due them by Dodge & 
 Co., and was used to retire a note of Dodge & 
 Co. that subsecjuently became due. One month 
 after tlie S^.S.CHH) became due, Dodge & Co., on 
 Niiveniber 'JJtth, 1S70, made a voluntary assign- 
 nuiit, tlieir liabilities beir.g upwards of .'JlOO.fMM). 
 Tlie jury were instructed that if, when tho notes 
 tteic transferred, Dodge & Co. had reason to 
 believe and did believe that their affairs were 
 ill such a situation that insolvency woidd in all 
 prubability ensue, though there was a possibility 
 of tlieir tiding over their dithculties, the transfer 
 would 1h! in ccmtravention of the statute (the 
 Iiisiilvent Act of 1869), and lie deemed to be 
 made in contemplation of insolvency, and was 
 invalid if maile to give tiie defendants a prefer- 
 ence over other creditors. The jury found for the 
 assignee. 
 
 l/i/il, that this instruction was correct, and 
 tiiat the statute was applicable, although de- 
 fendants were not at the time creditors. 
 
 I/arrk v. If'ylde tt al., R. E. D., 515. 
 
 '26. Costs or application for discharge 
 
 of insolvent, where the discharge was refused 
 
 on appeal, ordered to be paid out of the estate. 
 
 In re Hxitchimon, Iiw<olvenf, 3 R. & C. , 40. 
 
 27. Costs-Liability of attachingr credi- 
 tor for costs of official assignee — The defen- 
 dant placed a writ of attachment in the hands 
 of the plaintiff, as official assignee under the In- 
 solvent Act of 1875, who after the creditorg' 
 
 meeting, gave defendant notice of taxation. 
 Defendant attended the taxation, and at his 
 instance some of the items were struck off. The 
 balance uf the amount, as taxed by the Judge 
 for the costs of the official assignee down to the 
 appointment of the creditors' assignee, defen- 
 dant promised to {my. An action was brought 
 by the plaintiff for the amount and judgment 
 was given for the plaintiff by the County Court 
 •Judge, which on ap|)eal was reversed, judgment 
 Ijelow being entered for defendant. 
 
 OretrfidU v. Yorke, 3 R. & O., 19; 
 '2 C. L. T., GOl. 
 
 28. Creditor, when a claimant -On an 
 
 a]>plication to confirm a deed of composition and 
 discharge under the Insolvent Act of 1875 a 
 creditor appeared to oppose the discharge, who 
 had not filed his claim, though he was mentioned 
 in the list annexed to the affidavit accompanying 
 the insolvent's petition and notice of the applica- 
 tion had been sent him. 
 
 He/il, that the creditor was a claimant within 
 tiie meaning of the Act, for the purpose of 
 opposing the ilischarge. 
 
 In re Crciijhfon, I R. & (J., 'ill, orerruled. 
 
 In n John Bauer, 3 R. & G., 149. 
 
 29. Contest between assignee and attach- 
 ing creditors under Absconding Debtor's Act 
 
 — Writs of attachment against the mortgagor, 
 as an absconding delnor, were issued, and de- 
 livered to the Slieriff on May 'JO. An appraise- 
 ment of the mortgaged premises was made, and 
 cojjics of the writ, with the appraisement and 
 description of the land, were regiatered on May 
 21. On the same day a writ of attachment, under 
 the Insolvent Act of 18(i9, was taken out against 
 the mortgagor, but was not delivered to the 
 Sherill' until after he had registered the docu- 
 ments connected with the proceedings under the 
 Absconding Debtor's Act. 
 
 //eld, that the claims of the assignee of the 
 estate, to the surplus proceeds, must prevail 
 over that of the attaching creditors. 
 
 Section 24 of chapter 79, 4th 11. .s., is con- 
 trolled by the Insolvent Act. 
 
 Almonet al. v. Gray tt al., R. E. D., 6 
 
 30. Courts of one ProTince cannot re- 
 strain proceedings in Courts of another Pro- 
 vince. — Proceeding by liquidator of insolvent 
 company to restrain sale of goods by execution 
 creditor— Laches — The plaintiff having com- 
 menced proceedings against the defendant com- 
 pany, under the Act of the Province of Nova 
 8cotia relating to the service of process on 
 companies out of the Province, obtained judg- 
 
675 
 
 INSOLVENCY. 
 
 676 
 
 nient ami iasued execution under whiuh the j 
 ISheriir levied upon oertiiin property of the 
 defendant witliin the Province. Tiie defendant 
 coni|>uny, wiiich wixn incorporuted under iin Act [ 
 of the Dominion Legisliiture and had iti) head ' 
 oHice at Montreal, in the Province of Quebec, 
 having lieconie insolvent, was placed in li(|uida- 
 tion, and an order was obtained by the liipiidator , 
 from the Superior (.'ourt of Quebec restraining , 
 the Sheriff from proceeding to sell under the [ 
 execution. The order was served after tiie I 
 seizure and before the sale, but the Slieriff pro- 
 ceeded, notwithstanding, to sell. Sub»e(iu<'ntly | 
 the li(juidator interposetl in the suit brought by 
 the plaint itr against tlic defendant company, and 
 obtained a rule to have the execution and all i 
 proceedings under it set aside. PVom the time i 
 of the issue of the execution, with the li(iuida- j 
 tor's knowledge, down to the application fo the 
 rule, two months had elapsed, during which time ' 
 several steps had been taken. 
 
 //</(l, (1.) That the Quebec Court had no j 
 power to enforce a restraining order to stay j 
 proceedings in tiie Courts of this Province, but 
 that proceedings for that purfxise should have j 
 been taken here. I 
 
 (2. ) That the liejuidator had no power to j 
 interpose in the suit between the plaintiff and | 
 defendant. I 
 
 (."?. ) That even if the liquidator could have j 
 80 interposed he must have failed on account of 
 laches. 
 
 McDonald, C. J., dinnentinij. 
 
 Tht Halifax Jianhimj Co. v. The Dominion 
 Saivaije <b Wreckiiuj Co., 6 R. & G., 364 ; 
 6C. L. T.,490. 
 
 31. Demand of assignment— Irregularities 
 
 in, how taken advantage of — Consideration 
 for mortgage — Contemplation of insolvency- 
 Plaintiffs, as assignees under the Insolvent Act, 
 sought to have certain mortgages decreed to be 
 void, which were made by the defendant Smith, 
 within thirty days of demand made on him to 
 assign, followed by an assignment. The evi- 
 dence was conflicting, but the Court drew from 
 it the inference that Smith fln<ling himself in 
 difficulties, applied to the Bank for $3,000, in 
 the belief that, if obtained, it would enable him 
 to arrange with his more pressing creditors and 
 avert the insolvency which must otherwise 
 ensue ; that the agent of the Bank first led him 
 to believe that the advance would be made, but 
 the directors refused, and, instead of making 
 the advance required the mortgages to secure 
 existing liabilities ; that defendant consented to 
 make them, encouraged by the agent to believe 
 that if he did so further accommodation would 
 
 be afforded, but the Bank having secured it- 
 self and considering that further accommodation 
 could not safely be afforded, declined to make 
 any further advances and insolvency ensued, as 
 .*<mith had anticiitated. At the time the mort- 
 gages were given, the insolvent's paper was 
 lying overdue in the Bank, and the agent of the 
 liiink, o)i the execution of the mortgage, told 
 him that he could not expect an advance till 
 after the expiration of thirty ilays. 
 
 I'laintitrs having sought relief first, on the 
 ground that the mortgages were made in consid- 
 eration that the Bank wouliladvanceS.'lOOO, wiiioh 
 would have prevented insolvency, and secondly, 
 that they were given in contemplation of insdl- 
 vency, and with intent fraudulently to iinpedo 
 and delay creditors, 
 
 Iltlil, as to the first ground that the consid- 
 eration must be ascertained from tlie language 
 of the instruments which referred to existing 
 indebtedness and not advances, and that Sniiih 
 could not be heard to alleged differently ; but 
 that on the second ground the mortgages must 
 be decreed to be void as against the plainlitTs 
 and creditors of the insolvent. 
 
 Objection was taken that the r-^iuisition upon 
 Smith to assign was infornuiUy made, the 
 affidavit on which it was bused being liable to a 
 technical objection. But an assignment having 
 taken place under it, and no objection having 
 been made to it in the Insolvent Court, wiiich 
 had proceeded to settle the estate. 
 
 Held, that it was not for a third party in a 
 different Court to call in question the regularity 
 of its proceedings. 
 
 Sembk, even before the amendment of sec. 
 133 of the Insolvent Act of 1875, by the inser- 
 tion of the words prima facie, (cap 41 of 1877,) 
 the presumption of fraud could be rebutted. 
 LoiKjworth et al. v. Merchants'' Bank of 
 
 Halifax et al., R. E. D., 255. 
 
 32. Discharge — Construction of Act — 
 
 T., an insolvent, made a voluntary assignment, 
 which he delivered to the interim assignee on 
 the Ist March, who called a meeting of creditors 
 for the 15th March, at which he wod appointed 
 assignee of the estate. On the 29th March the 
 insolvent filed with the assignee a deed of cow- 
 position and discharge, and an atlvertisement 
 was thereupon published and continued for one 
 month, giving notice of application for cor firm- 
 ation of the discharge. The application was 
 made on May 18th, and the discharge refused 
 on the grounds, 1st, that the insolvent had not 
 deposited the deed with the assignee for the 
 purpose contemplated, nor had the assi^aee 
 pursued the course prescribed by section 97) 
 
677 
 
 INSOLVENCY. 
 
 G78 
 
 Dominion Insolvent Act of IStHJ ; 2n(l, that one 
 mm til 'h notice luul not expired from the tirHt 
 meeting of creditors of insolvent before the filing 
 of and acting upon the deed of composition iind 
 disclmrge, us re(|iiired liy section 'Mi ; .'Jrd, that 
 no cliviilend could be declared until three months 
 after notice of the aiiiiointment of the assignee. 
 
 //</il, 1st, that the insolvent, if he saw tit, 
 might waive section 97, and jH'oceed umler 
 sei'tiiiu l(»l ; 'Jiid, that if the deed, when tileil, 
 had been executed by a majority of the creditors 
 under section 04, there was no reason for delay, 
 us the contirmation itself could not take jjIiicc 
 before the montii luid expired ; Urd, that it was 
 not tlie meaning of section ri;') that no dividend 
 iduM be declared until after the expiry of three 
 months from the appointment of an assignee, 
 but tliat a tlividen<l might be dedareil at the 
 end of one month if the assignee had funds. 
 
 //ihl, a/xo, that the objections taken being 
 merely of a preliminary character, the insolvent 
 was not entitled to his discharge on failure of 
 the objections, without further incjuiry. 
 
 In re E. I). Tucker, an Inw/nnf, 
 
 '2N. S. 1)., .300. 
 
 33. Discharge — Improperly granted — 
 
 Coats — The insol.'ent, having entirely disre- 
 garded the provisions of the Insolvent Act, as 
 to keeping proper books of accounts, had no 
 means of knowing his actual financial condition, 
 and being refused acconmiodation by parlies 
 from whom he had been accustomed to receive 
 it, gave them preferential security for their 
 existing and future advances, the result of which 
 was that the goods purchased from other credi- 
 tors, and not paid for, were levied on for the 
 exclusive benefit of the creditors so preferred. 
 
 The Judge in Insolvency having granted a 
 discharge suspending its operation for one year, 
 his decision was appealed from and reversed. 
 
 Costs directed to be paid out of the estate. 
 /« re Hutchinson, Insolvent, 3 R. & C. , 40. 
 
 34. Discbarge— Plea of— Reply of fraud— , 
 
 AVhere the plaintiff, to a plea of discharge under 
 the Insolvent Act of 1869, replied that the dis- 
 charge had been obtained hy fraud, 
 
 Hdd, that the replication was good and that 
 the Judge who tried the cause had misdirected 
 the jury in instructing them that the question 
 of fraud was only for the Court that confirmed 
 the discharge, and could not be brought up 
 except by appeal. 
 
 GodEn V. Beech, 1 R. & C, 261. 
 
 35. Discharge — Flea of — SchedoUng 
 
 claims— Plaintiff sued on a note made by defend- 
 ant to John T. Fraser for $70.86 and mdoreed to I 
 
 him. Defendant pleaded a discharge in insol- 
 vency, to which phiintitT replied that the debt 
 had not been scheduled in compliance with the 
 Act. The schedule contained the following, 
 "John T. Fraser's note 7'2.t)0." 
 
 J/i/il, that the schedide ilid not sutHciently 
 describe the note which being negotiable should 
 liave lieen scheduled as " negotiable paper, the 
 holder of which is unknown.'' 
 
 Hntt V. Huthtrluml, '2 R. & (J., 191 j 
 1 C. L. T., (i64. 
 
 36. Discharge Plea of- Claim on notes- 
 Scheduling -.ludgment .'or plaintitV sustained 
 where defendant pleaded a discharge in insol. 
 vency, and it appeared tliat the note sued on, 
 of which the present plaint itt' was tiie indorsee, 
 had l)ecn included in the amount scheduled as 
 the claim of the original payee, but no parti- 
 culars of it were given, as provided by section 
 ()1 of the Insolvent Act of 1H75. The plaiiititr's 
 name a]ipeaied in the schedule ; but no amount 
 was set opposite. 
 
 DeWo// V. Xul/y, 1 R. & (J., '243. 
 
 37. Discharge in insolvency— Schedule ot 
 
 claim — Designation of debt— Defendants were 
 sued on a promissory note made to the solicitors 
 of the plaintifT and by them indorsed to plaintiff. 
 They pleailed a discharge under the Insolvent 
 Act of 1869. Two of the defendants produced 
 a supplementary list of creditors alleged to have 
 been filed a few days before the date of the dis- 
 charge, which list did not give the residence 
 of the parties scheduled or state the nature of the 
 debt, or whether direct or indirect, but was 
 simply a bald statement of names and amounts, 
 and it was not shown that any schedule to which 
 it professed to be supplementary had ever been 
 filed ui the manner required by the Act. The 
 third defendant produced no schedule, bub 
 stated that he had sent it to his solicitor to be 
 filed. There was no proof that the solicitor had 
 received it or that it had been tiled ; and, on 
 secondary evidence being allowed, it was shown 
 that the debt had been scheduled as due to the 
 solicitors instead of being scheduled as due to 
 plaintiff. 
 
 Held, that the discharge in insolvency did nob 
 release the claim. 
 
 KnaxU V. Sponayle et o^., 4 R. & G., 193, 
 
 38. Discharge— Scheduling claims— De- 
 fendant and his co-partner became insolvent, 
 and plaintiffs filed a claim against the partner- 
 ship estate for the notes declared on, made by 
 the partnership and indorsed by the defendant, 
 without disclosing the security of defendants as 
 
679 
 
 INSOLVENCY. 
 
 cso 
 
 inilorHiT, or that tliuy luitl attiMiiptuil tn rank on 
 the inilividunl estate. Dufenilaiit ol.taiiiod tlie re- 
 qtiireil nunilicr of Hignatures to a deed of coiiipoMi- 
 tion anil dittcharye, and very shortly before lie 
 applied for it» crintirnmtion, plaintitTs attempted 
 tn amend their atiidavit of claim against the part- 
 nnrHhip ho as to diHuhme the Hecurity, liut the 
 affidavit was not re-sworn. At the same time tt 
 claim wax tiled against the individual estate, i 
 Defendant, hy his deed, covenanted in ccmsider- I 
 ation of the discharge to pay a composition, and 
 give to each of tlie creditors his promissory 
 uotes secured by names approved of by the in- | 
 upectors, but <lid not include plaintitls' claim in 
 his schedule, or make or deliver any notes to ' 
 them. ! 
 
 HM, that the claim wa.s a claim "provable' 
 ttgainst defendant's individual estate within the 
 meaning of the Act, although the right to prove 
 had been lost by the failure to disclose, but that 
 plaintiffs' claim was not disciuirged, defendant 
 having refused to make or deliver to tiiem the 
 notes, and having treated plaintitls as if they 
 had no valid claim against tiie estate. 
 
 .Tames, .1., dis.siiitiii<i, held, that tiie discharge 
 was not conditional on the notes being gisen, 
 but alisolute, and that it bound the plaintiB's. 
 
 I'idou Hank v. Fra^^tr, 2 R. & <!., 116 ; 
 1 C^ L. T. , 567. 
 
 .SO. Discharge - Sec. 101— Where an in- 
 solvent had not kept an account book showing iiis 
 receipts and disbursements of cash and the Judge 
 of the County Court, granted him a discharge of , 
 the second class, suspending it for four mouths ; ' 
 on appeal, the discharge was contirmed, Ijut sus- 
 pended for an additional period of four months. 
 
 Wilkins, J., dUxi'iilimj. 
 
 Held, that sec. 101 of the Insolvent Act of 
 18G9, made it imperative on the Court to refuse 
 the discharge. 
 
 In re A. Mooney, Insolvent, 2 R. & C, 563. 
 
 40. Discharge — Suit commenced before 
 
 assignment — Plea puis darrein continuance — 
 Execution— Plaintiff recovered judgment against 
 defendant after plea jmis darrein contimiance of 
 composition and discharge under the Insolvent 
 Act of 1869, the suit having been commenced 
 before the assignment of defendant under the 
 Act. The discharge was confirmed after plea 
 and before trial, but did not appear to have 
 been brought to the notice of the Court in any 
 way at the trial. On motion to set aside execu- 
 tion on the judgment. 
 
 Held, that the defendant must have the ad- 
 vantage of the general provisions of the law in 
 his favor, which cancelled the original iudebted- 
 
 ncHM, an<l that the execution and procecdingH 
 theremiiler must l)e set aside. 
 
 Wnlliw v. liosMin, '2 K. & C, 410. 
 On <t/i/M(i/ to I hi Sii/inmi: Court «/ Canada, 
 III Id, Strong, .1., (Ussentiiiij, that the rule or 
 order of the Court l>elow was one from which an 
 appeal would lie. 
 
 •2. Reversing the judgment below, that de- 
 fendant having neglected to plead Ids disciiarge 
 before judgment, as lie might have done, was 
 estopped from setting it up afterwards to defeat 
 the execution. 
 
 \\'a//ace v. lioisnm, 2 .S. C. R., 488. 
 
 41. Discharge— Suspended Tor a period- 
 
 The insolv'jiil iiaving determined to stop busi- 
 ness disposed of tiic stock of goods on hand to 
 his daugliter for tiie sum of SIOOC*, who continued 
 the business for the benefit of the family, the 
 insolvent assisting as clerk. No money was paid 
 by the daugliter for tiie goods at the time of 
 purciuvse, or subscijuciitly, nor was any security 
 taken, but at tlie time of the assignment, about 
 a year after, the insolvent handed to tiio 
 assignee a note of one A. for the sum of Sl'HJO, 
 whicli was never paid. It was admitted ))y tiie 
 insolvent tiiat after he ceased to do business lie 
 collected del)ts due him, and lived upon tiiem 
 and paid nothing to his creditors. No inven- 
 tory was taken or valuation made of the goods 
 at the time of the sale, Imt the insolvent said 
 that Jie sum of .«il()IK» was about tiieir value. 
 The Judge of Probate having granted a dis- 
 charge with a first class certificate, from which 
 the creditors appealed, 
 
 Ile/d, that tliougii the insolvent might not 
 have deprived himself of all right to a discharge, 
 under the circumstances it sliould be of the 
 second class and suspended for the period of 
 two years. 
 
 In re Donald Mathewn, an Insolvatt, 
 3 N. S. U., i538. 
 
 42. Discharge— Traders -Costs- T. A. and 
 
 J, A. made application for a discharge in insol- 
 vency under the Dominion Insolvent Act of 
 1869. The principal objection taken to the dis- 
 charge was that the Act applied to traders only, 
 whereas the insolvents admitted that at the 
 time of its passage they had ceased to he 
 traders. Before judgment the Act of 1871 was 
 passed, amending the Act of 1869, so as to in- 
 clude parties who having been traders at the 
 time of the passage of the latter Act had since 
 ceased to trade. 
 
 Held, that the insolvents come within tiie 
 latter Act and were entitled to the discharge, 
 but without costs, they havuig succeeded on a 
 
681 
 
 INSOLVENCY. 
 
 682 
 
 gnmnil that had no existenco when they entered i entered up against FairlumkH, an excoutiim was 
 
 their iip]i('al. isHuud, under which he waa arreHted and |ilucv(l 
 
 III n ThoM. Archibald and John Archil/aid, in ouBtody. While ho waa in custody, and aft«r 
 
 Iif<olvtiilM, '2 N. S. 1)., 303. I the prcHcnt suit waa drought by plaintilT oa 
 
 aaaignue of DeWolfe »% Co. against Fairluinks, 
 
 43. Discharge - Plea of, with protest, *■" foreclose tlie mortgage, anil after aaid Fair, 
 where fraud charged — I'laintiflf hrouglit an '""'ks had answered, iiia estate waa placed in 
 action, February •-'(Hh, 187(1, on two proniisaory inaolvency, and Creighton, his assignee, infer, 
 notes witii a count for fraud under section 1.1(1 vened and beoanio a party. Parker & (irant 
 of tiie Insolvent Act of 187.'). Defendant had ''Iso became jxirtiea aa interested in the subject. 
 bi'Cdine insolvent in December, 187.'), and ob- matter. 
 
 taiiu'd fffpui iiis creditors a deed of composition \ H'I'l, rtrat, that the inscdvency of Fairbanks 
 and <lischarge which waa duly confirmed Sep- 'l''l ""t prevent the plaintiff from proceedinjf 
 tembcr Kith, 187(5, previously to which date with the foreclosure ; and secondly, that I'arker 
 plaintiff liad accepted a composition on the notes & Grant had not lost their lien on the mortgaged 
 sued on ; but plaintiff liad not signed the deed, property in consetiuence <if their having arrested 
 
 Defendant having pleaded March 8th, 1876, Fairbanks under the judgment, 
 added a plea September '2iM\\, 1878, setting up \ Tucker, Amynee, v. Crtiijhton, As.iiiinef', tt ah, 
 the ileed and the acceptance of a composition, I "• K- I^m -61. 
 
 liul did not plead tiie discharge /n(M ilarrtiu i 
 
 roiitimtamr, his counsel apprehending that the { 46. Enlargement Of time for dOing Act — 
 
 ftfect of such a plea would be to confess the | Discretion of Judge — Appeal — At a meeting 
 
 fraud cliarged in the declaration. The cause of creditors of W. W. Riukards an inaol- 
 
 was tried in April, 1880, wheii a verdict was vent under the Insolvent Act of 1869, lield 
 
 found for the plaintiff for the balance of the notes in May 1873, olijections were filed to the claim 
 
 sued on, but the jury accjuitted the defendant of of .Josephs. Rickards and duly served, about two 
 
 the ciiarge of fraud. Defendant then took a years after wldch .Joseph S. Rickards himself 
 
 rule }ii.4 to stay the proceedings on the ground became insolvent. His assignee in 1878, Joseph 
 
 that the debt had been discharged. , ,S. Rickards iiaving died in the meantime, obtain- 
 
 Rule itisi discharged with costs. ed a rule granting him permission to file answers 
 
 Pi r Ritchie, K. J,, to the objections within fifteen days contestant 
 
 //»./(/, that the defendant could hax'e pleaded to have like time to reply. 
 
 the discliarge pttin darn in coiiti nuance with a He/d, that although under the Act of 1875, 
 
 simple protest that there was no fraud. the Judge of the Insolvent Court had the dis- 
 
 Harrington v. ]Vitttr, "2 R. & <}., 183 ; j cretion to grant an enlargement of the time for 
 
 1 C. L. T., 663. [ filing answers, and could make such an order 
 
 I even after the expiration of the three days pres- 
 
 44. niSdUaliflcatlOn of Judge- Insolvent ''"^^'^ ^'y statute, in the present case, in which 
 Act of 187.".-Undfir the Insolvent Act of 1875, Hie application was not made until more than 
 a creditor for an amount less than §100 cannot four ye'irs after the time when it shoul.l have 
 oppose the confirmation of au insolvent's deed ! l^een made to the assignee under the Act of 1869, 
 of composition and discharge. 1 the order could not be upheld. 
 
 Overruled in re John Bauer, 3 R. & U., 149. -^^ >■« -^"^'"'^ of Rickardx, Jt R. & C, 493. 
 
 Weatherlie, J. dissenting. 
 
 The fact that the insolvent was second cousin ^f^ Filing seCOnd Claim after receiving 
 of the Judge's wife, held not to discjualify the composition— Waiver— Plaintiff's being credit- 
 Judge from dealing with the matter. | ors of the defendant, an insolvent, executed a 
 In re Creighton, 1 R. &G.,211. composition deed under the provisions of the 
 
 I Insolvent Act and received their composition 
 
 45. Eifect of arrest on lien of Judgment— j payable in several instalments, on a claim tiled 
 Parker & Grant having recovered a verdict | in September, 1876, showing a balance of S'2. 0.16, 
 against Fairbanks, a rule nini w-as taken out to | after giving credit for a " note indorsed by T. 
 set it aside. T. & E. DeWolf & Co. became ' Coffin." After time for payment of the compo- 
 
 sureties to respond the final judgment, and took 
 a mortgage from Fairbanks to secure them from 
 loss on account of their bond, and also to secure 
 the amount of an existing indebtedness. The 
 rule nt«i having been discharged and judgment 
 
 sition elapsed plaintiff filed a second claim 
 containing substantially the same debits, but 
 omitting the credit of the note indorsed by T. 
 Coffin & Co. The total amount of the debits 
 in the second claim was $2831 from which plain- 
 
68.1 
 
 INSOLVENCY. 
 
 68« 
 
 tiffs (lodiioted $'i(».'W, the amount of tlio flriit 
 cliiini, leaving a luilaiiut! of ^'{Kt. IMiiintitrH 
 recovered a vonliot for tlio uoinjmHitioii on tliiit 
 anioniit. 
 
 //</(/, that in tilinj; tiio fu-Ht ohiini on which 
 the ( 'otKn note wasi credited, anil receiving a 
 conipoxitinn on the chiini as tliiw Hied, plaintiffM 
 had waived tlio ri^ht to demand a compoHition i 
 on llicHiim tiiat would have l)cen due if thuy had j 
 not given credit for tlie Coffin note. 
 
 Anilerion e.t a/, v, Snlherhinil fl a/., 
 .1 H. &«J., .•{•)«; 
 3 C. L. T., 43. : 
 
 48. Fraudulently assigned property taken 
 
 under execution —The language of the InHolvunt 
 Delitors' Act of 1846, which permitted a i>Iaintitr 
 to take under execution property luhHeque.ntly 
 tti'i/uir-ed hy the insolvent, 
 
 H'/d, not to restrain a plaintiff from taking 
 under execution goods fraudulently assigned l>y 
 the insolvent previous to his iliscluirge under I 
 the Act. [ 
 
 Falconer v. Sairyp.r, James, 277. 
 
 49. Funds Improperly obtained by credi* 
 
 tor — Recovery of— Practice — Tlie insolvent, 
 T. .7. IJ., heing indebted to the Merchants' Hank, 
 instructed the casliier of the Railway Depart- 
 ment by letter, dated Oct. 22, to send to (!. M., 
 the cashier of the hank, any cheque coining to 
 him from the Department. On Nov. 7 a ciie(|ue 
 for §091, 7(5, payable to the order of the insolvent, 
 was enclosed in a letter, addressed to the insol- 
 vent, care of Merchants' IJank. The agreement 
 between the insolvent and the cashier of the 
 bank, when the letter was written, was, accord- 
 ing to evidence of tlie former, that the bank 
 should have .$,S()0 of the money, according to 
 cashier's evidence, S3oO. The cashier opened 
 the letter and indorsed the cheque " T. J. B., 
 per (1. M., Agent. For Merchants' Bank of 
 Halifax. Guaranteed, (i. M., cashier." The 
 writ of attachment against the insolvent was 
 issued January 18, 1879. 
 
 J/ehl, that the cashier had no authority to 
 open the letter or indorse the cheque, but that 
 the bank was entitled to retain the $.300 as agreed 
 upon ; that this amo'.:r.t could not be recovered 
 by the assignee iinder the 1.30\h section of the 
 Act, which had no reference tc a case like this, 
 nor under the 134th section, as that was confined 
 to payments made within thirty days of the 
 insolvency. 
 
 Creighton v. Merchants' Bank of Halifax, 
 
 R. E. D., 437. 
 
 50. Insolvent prevented fh)m proceeding 
 
 with cause unless security given or assignee [ 
 
 intervened — Plaintiffs became insolvent after 
 an appeal was taken l)y defendant to the Mu> 
 proine Court from the judgment of the County 
 Court, setting aside pleas. The Court granted 
 an order preventing the cause from being pro- 
 ceeded with unless plaintiffs should give security 
 or the assignee should intervene. 
 
 Evam et ul. v. Foxfn; 1 R. & C, 0. 
 
 51 . Inspectors -Duties and liabilities of— 
 
 Section .'14 of the Insolvent Act of ISdO, pi'ovid- 
 ing that the inspectors shall superintend and 
 direct the assignee in the performance of his 
 duty uiuler the Act, Ac, does not render the 
 inspectors liable for the wrongful act of the 
 assignee, in the absence of evidence showing 
 that they authorized the act complained of. 
 Costs directed to be paid out of the estate. 
 
 Jhirket V. Cox et at., 3 R. & C, 17. 
 
 52. Judgment by confession to Indemnity 
 
 against future indorsements, which were 
 afterwards given— Not void as made in con- 
 templation of insolvency — Plaintiff sought to 
 set aside a judgment entered on a confession us 
 made in contemplation of insolvency ; but the 
 judgment creditor alleged and it appeared in 
 evidence that the confession was taken only to 
 iudenniify the judgment creditor against loss on 
 accommodation indorsements to be thereafter 
 given, which were given. 
 
 //e/d, that although the ju'lgment debtor was 
 in insolvent circumstances at the time of giving 
 the confession, the judgment could not he 
 impeached, section 89 of the Insolvent Act .)f 
 187.'>, referring (nily to securities given foi pre- 
 existing debts or liabilities. 
 
 Kinney v. liyir.ion et a/., R. E. I)., 488. 
 
 53. Judgment creditor flling claim for 
 
 whole amount of judgment without putting 
 a value upon it abandons his security — 
 Crowe, as judgment creditor of the insolvent 
 McLellan, filed a claim for the full amount of 
 his judgment, stating that he held such judg- 
 ment as security, but could give no estimate of 
 its value, and ranked on the insolvent estate for 
 the full amount of the judgment. Previous to 
 the insolvency he had assigned the judgment to 
 McDonald and Witt, who acted as his solicitors 
 in the filing of the claim. 
 
 Held, that by claiming for the whole amount 
 of the judgment without putting a value upon 
 it as required by section 60 of the Act, Crowe 
 had practically abandoned his security, and 
 McD. and W. could not succeed in the present 
 application, which was for surplus proceeds on 
 foreclosure and sale. 
 
 Sherlock v. McLellan, R. E. D., 165. 
 
6H5 
 
 INSOLVENCY. 
 
 686 
 
 34. Jodxment obtained »dTenely and re* 
 
 corded - Not doitroyed by Insolvent Act, 
 although obtained and recorded within thirty 
 days of ftHsignment -The usuignuo of nii iiiHul- 
 vent olitaint'it an order niii from a Hiiiglu iJintgu, 
 retiinialilo before tlie Court in hanco, to Hut 
 aMiik- a jiulgnivnt obtainuil ugaiiiHt the inHol- 
 vi'iit, not l)y confoBHion but udvurHely, on the 
 (itii April, \H~'2, and regJHtereil on tiio Hunio 
 day. On the 20th April, IH7'2, fourteen days 
 (ift'.T tlio judgment defendant made tiio assign- 
 mi'nt. On tiie .'Ird May, 1872, one Han-ey was 
 duly appointed creditors' assignee, 
 
 //</(/, that the Insolvent Act did iu)t destroy 
 tlie preference obtained by a hona_lide judgment 
 tri'ditor whose judgment had been recorded 
 lii'fiirc attachment or assignment. 
 
 (Quaere, whether the assignee could intervene 
 
 in a cause after judgment in this ortlinary way. 
 
 Munlork V. ira/.sA, Unri-portnl. 
 
 5.1. Meeting of creditors -Judge no power 
 
 to onler to be held out of his jurisdiction — 
 Wliure tile Judge of the County Court for Dis- 
 trict No. '2, Lunenl)urg, Ac, passed two orders, 
 one for postponing a meeting of creditors called 
 tn consider an offer of composition, and ordering 
 the assignee to retain the estate until discharge 
 applied for, and the otlier ordering a meeting to 
 be held at Halifax, tlie Court, holding that the 
 Judge could not order sucli meeting out of his 
 o\Mi jurisdiction, set aside both orders, as botii 
 liiul a connnon object, and directed the costs of 
 tiie appeal to be paid out of the estate. 
 
 In re Sutherland, 3 R. & C, 89. 
 
 56. Honey paid on promissory note with 
 
 forged indorsement — (irahani, tlie active mem- 
 lii-r of tiie insolvent tirm, made a number of 
 pioniissory notes in the firm name in favour of 
 one Tiiomas Fraser, by wliom the notes pur- 
 ported to be indorsed, but tiie indorsements 
 Were all of them forged. The notes were pre- 
 sented to the claimants and negotiated by (ira- 
 hani, wlio received the money on them, anil a 
 large part of the proceeds was appropriated to 
 partnership purposes. 
 
 Hftd, that, although the Bank could not 
 claim on the notes, it could rank for the amount 
 of them as money paid. 
 
 In the Matter of Graham cfc McKay, Insolvents, 
 and Ike Bank of Nova Scotia, Claimants, 
 
 3R. &C.,251. 
 
 57. Mortgage made in contemplation of 
 
 insolvency— By whom and how to be attack- 
 ed—Defendants, being added parties, resisted a 
 proceeding taken by plaintiff, as assignee of a 
 mortgage, to foreclose the same, on the ground 
 
 j that the mortgage wai made in contemiilation 
 of insolvency, and was void under the Insolvent 
 Act, the mortgagee having afterwards become 
 insolvent and assigned umler the Act. 
 
 Ilfld, that defendants, seeking as creditors 
 of tiie insolvent, to impeach the mortgage, solely 
 on tlie ground that it was in contravention of 
 
 I the Insolvent Act, should have called on the 
 assignee to take proceedings to set it asiile, and 
 upon his refusal, should have applied to the 
 Judge for leave to proceed in his name, and, 
 further, that defendants should have proved their 
 claims in order to entitle them so to proceed. 
 
 Quaere, whether the defendants could contest 
 the validity of the mortgage at all, without 
 bringing a cross action. 
 
 Grant v. Wheeler rt al., R. K. 1)., 388. 
 
 58. Mortgage made In contemplation 
 
 of insolvency void — The Messrs. I'ryor, in 
 I)eceml)er, 1873, of their own accord, signed and 
 sealed a mortgage, wliereby defendant was to 
 bo secured from loss on indorsements of their 
 paper ; but defendant did not become aware that 
 such a mortgage had been made until scmie time 
 in 1874, and his information then was not derived 
 from Messrs. I'ryor, or any person authorized 
 by them. The mortgage was not recorded until 
 Marcli 20, 187'), when the Messrs. Pryor knew 
 they woulil have to go into bankruptcy, and on 
 .March 22, 1875, they made an assignment under 
 the Insolvent Act of 1809. 
 
 Held, that the mortgage was void, being 
 made in contemplation of insolvency. 
 
 Lordly, Assignee of Pryor, v. Ytomans, 
 
 R. E. D., 113. 
 
 I 59. Motion In Supreme Court to set aside 
 
 proceedings in Insolvent Court — No certiorari 
 
 — Coram nonjudire — An order jiMi' was obtained 
 from a Judge of the Supreme Court to set aside 
 a writ of attachment in a suit depending in the 
 Insolvent Court. No certiorari or other pro- 
 ceeding had issued to bring the cause up to the 
 Supreme Court. 
 
 Held, that the proceeding was coratri noit 
 judice. The rule nisi was discharged. 
 
 Silver et al. v. Petitmaiire, 2 N. S. D., 5.51. 
 
 60. \otlce of meeting to appoint creditors' 
 
 assignee — 
 
 Held, that where the notice was published in 
 "Gazette" of the 19th, and the meeting at 
 which creditors' assignee was appointed was 
 held on the 29th, the appointment was irregular 
 and invalid, "at least ten days' notice" being 
 required by the Statute. 
 Parker, Assignee, v. Kenny etal., 5 R. & G., 457. 
 
 AflSrmed on appeal to the Privy Council. 
 
687 
 
 INSOLVENCY. 
 
 m 
 
 •1. Penalty Action tor undrr ler. tM 
 
 fiffil, uniicccMMury to iillcHi' in |iriK'«H'iliiig for 
 a [M>niilty umlur Hci'tioii O'J oi' the Iimolvt'iit Act 
 (if IHKO, and nuction \'M\ of tliii IiiMolvoiit Ai't of 
 |N7.'^, thiil thu (lofuiulant wai innolvuiit witliiii 
 the mciiniiii; of the Act. 
 
 J/arriiiylon v. W'itlir., '2 R. & ('., 34'J. 
 
 6*i. Pledfce or lien xlven In eontemplntlon 
 
 of innolvency- .(. T. F. * Co,, licing imlclili'il 
 to the phiintifT, gave, aH i-olhitcral nvcurity a 
 mortgage which they were to reci.'ive on a ven«cl, 
 being liuilt liy McK. & V'., liehtors of thcirM, 
 in P. K. iHlanil. The amingenient was iimde 
 October 19, 1H7.">, and <in llie same ihiy .1. 'I'. K, 
 & Co, wrote to plaintitrH, enclosing a draft on 
 H. iS[ (,"o., Liverjiool, at ninety dayM, for i'l,(HH», 
 itating that tlie sanu' wiih drawn againnt jjrocceiJH 
 of the veHsel, whi-.'h was to be (told in Liverpool, 
 (>. B., liy H. k Co., and conclmling : "The 
 above veK«el is herewitli pledged to you for the 
 due payment of said Uill of Kxcliange, aH well 
 as for payment of the oldigations of McK. & V." 
 J. T. F. & Co. then proceeded lol'rince Kdward 
 Island, to obtain the mortgage ; but previous to 
 its being delivered to |>laintiHfs, they had on the 
 I'ith Xovcnd>t:r, caused a demand of assignment 
 to be served (m .]. T. F. & Co., and the plaintiff's 
 manager, when the mort^'age was afterwards 
 tendered to him said it should have been made 
 to the Iknk, instead of to J. T. F. & Co., and 
 handed it back to J. T. F., who gave it to the 
 assignee. On the loth Novend)er, J. T. F. & 
 Co. made an assignment under the Insolvent 
 Act, and on the '27th Xovember, the bill of 
 exdiange for ,t'l,()0<) was presented I'nd dis- 
 honored. The vessel was sold for moi'e than 
 £l,CiOO, by the assignee, who retained the pro- 
 ceeds. Plaintiff claiming to have an ecjuitable 
 lien <m the mortgage for the amount of the bill 
 of exchange, and of an unpaid note of McK. & 
 v., indorsed by J. T. F. & Co., 
 
 Held, that although, if the proceedings were 
 between the plaintiff and J. T. F. & Co., alone, 
 the latter might be eato])ped from resisting the 
 claim of the plaintiff, on the ground that they 
 had no title to the vessel at the time they pledg- 
 ed her ; yet, under the provisions of the Insol- 
 vent Act of 1875, sec. 118, the pledge or lien, if 
 it could otherwise have been effective, was ren- 
 dered null and void, a demand of assignment, 
 followed by an assignment, having been served 
 within thirty days after the pledge was given, 
 and the plaintiff, upon whom the burden of 
 proof lay under that section, not having shown 
 that the pledge had not been made in contemp- 
 lation of insolvency. 
 Bank of B. X. America v. Worrall, R. E, D., 12. 
 
 (M. Practice Jurisdiction ConmliiHoncr 
 
 a]i]Miinled by the Insolvent Court - Who I'on. 
 sidereil nuch.- A writ of attachment under tlio 
 Insolvent Act of IN(ll) having been iNsued at 
 the intlanco of plaintitf agaiuHt defendant, tliu 
 latter, tliree days liefore llm return day of thn 
 writ, procured a rule nini to net the uttachmeut, 
 the writ and other proceedings thereon, aHido. 
 The rule was taken, among other thingH, on 
 reailing tlie allidavit of defendant sworn before 
 William Aikins, di'^dgmited as a t'otinniHsioiicr 
 for taking allidavitH to be uited in the .Suprcinu 
 CoiU't, County of Coli'lu'Mter, and the allidavit 
 of ,Jose|)h .Norman Kitchie, sworn at Halifax, 
 l)efore C. .M. N'utting, designated as a coin- 
 miHsioner of .Supreme Court, County of Halifax. 
 The rule having been made absolute, setting the 
 attachment aside, plaintitf a])pealed on tint 
 I grouml among others, tli.it the .ludge in IumiI- 
 I ve!icy had no jurisdiction to make the oidtr 
 that Mie atfidavits were improperly sworn, being 
 rcquireil by the Act to be sworn by olhcers ap. 
 poiiiteil by the court, and that defendant s peti- 
 I tion to set aside the w rit was prenuiture, in iieing 
 presented before the return day of the writ. 
 
 //»/(/, 1st. That the Judge possessed juris- 
 diction under section •_'(» of the Act which em- 
 powers him to entertain a jietitiou to set aiida 
 the writ under the provisions of section 26. 
 
 '2nd. That from the mere fact of the com- 
 missionei's acting, there was a presumption in 
 favor of their authority which must btand, mitil 
 destroyed by evidence sulficient to annihilate it. 
 
 3rd. That it was left by the Act in the dis- 
 cretion of the party petitioning, whether he 
 would await the return day or not, the words 
 being "may petition the Judge at any time 
 within three days from the return day of the 
 writ, hilt not ajttrirard.i." Dom. Acts, iSliit, 
 c. 16, .S. '26. 
 
 Quaere., whether the writ could be set aside 
 until actually returned. 
 
 The Act providing that the petition is to he 
 heard and determined in asumnuiry manner, "it 
 is for the learnejd Judge to decide what that 
 summary manner of hearing shall be, and as 
 regards the nature and effect of the evidence l)y 
 which his determination is to be governed, pro- 
 vided it be legal and sufficient evidence." 
 
 The learned Juilge having proceeded by order 
 7im, 
 
 Held, that the course was perfectly unobjec- 
 tionable, whether viewed in regard to the dis- 
 cretion 80 exercised, or to the nature of tlie 
 mode of proceeding itself. 
 
 A commissioner who is in practice and law- 
 fully recognized by the Court (as would be 
 Aikins or Nutting) as an officer legally exercis- 
 
0.s<J 
 
 INSOLVENCY. 
 
 (190 
 
 ini; 1 liiiiL'tion hh iniiH)rtuiit, Im within tliu inciiii- 
 i.f the woriU (if H"cti<in I'JH, "A ('(•iiiiiiiiiiiiiiiii'r 
 iipiMPJiiti'il liy till' ('(iiirt." 
 
 tMii>i V. riirnnnn, '2 N. S. I)., M8. ! 
 
 A4. I'roof by partner axalnNt Mpparate 
 
 fBtftte of co-partner L'mUr tliu IiihoIvi'IiI Act 
 (if IhT.'i, Nfrtiim HO, uH iiiiih'r thu i'iit'i'i'H))(iiiiliii^' 
 |iriiviHiiiriN (if till! Knt^liHli A'.'t, ii dtOit iliiu liy onv 
 partrn'r ill ii Hriii to his co-purtnerH I'liii |ir(i|i('i'ly 
 1)0 iirovcil ii(.';iiiiiHt tlio H('|iiinttu iHtiito (if the 
 (li!it<ir iiH Kddii an the joint di^lifH of tiii' piirtniT- 
 ship hiivu buen iliachartjcil, 
 M,idii>i(i.^h V. Aliiwii ii ill, Vt H. k (i., 41IS ; j 
 
 (15. Beplevin againHt asHlgnee In Insol' 
 
 vency • SfL'tion I'.'.') of tlie Insolvent Act of 
 I'-iT'i ildi's not pi'ov(!iit nil ai'tion of replevin 
 (lyiiinst an asnij;iieu in insolvency to recover poa- 
 8t'8iiioii of ^'oodo conveyed under a lull of muIo. , 
 The suiniiiary proceedings therein provided for | 
 ;irt' iilili;,'atory only in the case of duties devi.lv- 
 i;,g (III the iissiyiiee by virtue of the Act. j 
 
 PiiHo V. (lantzn tt nl, R. * (J., 487. 
 
 66. KesldenCC — Proof of- AdmlDmlonS- 
 riiiiMtillasassignee under the Insolvent Act of 
 IMi9 liroiight action to recover iJTfH* paid within 
 tliiity days of the iiHsignment liy one Hamilton 
 t(i the (k'feinliints on a judgment entered up at 
 till! yiiit of defendants shortly before the assign- , 
 meiit, Imt not recorded because as the defendants 
 siiiil it would injure Hamilton's credit. The 
 jury found in answer to questicms pu», to them 
 tlml the payment had been made wii'iin the 
 tliirty days, that Hamilton was then una'de to 
 iiic'ct his engagements in full and that defendi.nls 
 hud pniliable reason for believing him to be b.> 
 iinalile and they found for plaintiff without 
 s|itcifying any sum. Objections having been j 
 taken to the verdict by rule yiini, 
 
 Ihid, that the distinction of Hamilton in the i 
 original writ in evidence as "of Bedford in the ! 
 County of Halifax" was evidence of Hamilton's 
 residence being outside of the City, that the oral i 
 answers of defendant before a commissionerunder j 
 an order of the Court were properly received 
 against him as admissions although the inter- j 
 rogations and prior examinations were not ten- i 
 (lered and that the payment, although made on i 
 judgment was within the terms of the act. I 
 
 Cochran v, Chipman et al.,2B,. &C., 254. 
 
 67. Salary and wages— Special prlTlIeee 
 
 -Under sec. 67 of the Insolvent Act of 1869 
 and section 91 of the Insolvent Act of 1876, 
 Held, that a clerk and two employees who had 
 
 left or been diiniiiicd from the service of an 
 insolvent, sixteen, twenty-one, end thirty tivo 
 nioiitliN, reM]iectively, before hiiussignment could 
 not be collocated on the dividend Hliit't by 
 special ]>rivilegi) for arrears of salary and wages. 
 Ill rt Kxtdti of Milchtll, IiiKolrml, 
 
 'JR. *C..:<79. 
 
 OH. Shipping Innolvcncy of ownem of 
 
 ship as affecting the maHier The insolvency of 
 the owiicrs does not i/Mi/iuio put an end to the 
 functions of tiie master. He must be dismissed 
 by their assignee. 
 
 The Jiun Aiidn-iiOii, Y. A. 1)., 'J44. 
 
 00. Trader, definition of, under Insolvent 
 
 Acts of 1H76— An action of trcsjiass was bnuight 
 liy ])laintitf as assignee of L. ['. Fairbanks iiiider 
 the Insolven* Act of 187."). Defendants pleaded 
 denying plaiiitiHf 's possession and title and deny- 
 ing that the |ilaintilf was aasignee.as alleged. It 
 appeared tliat the business of the ins(dvelit had 
 reference only to the canal property, of which ho 
 had been the owner, and although on cross- 
 examination the plaintitr stated that Fairbanks 
 had bought and sold all sorts of thiiig.<4, and had 
 bought oats, wood, and iron, he added that there 
 were no assets of that kind ; that Fairbanks liad 
 handed him no books of account, books of busi- 
 ness, or cash book, and that his books had refer- 
 erence wholly to the canal property. 
 
 J/i/(l, that Fairbanks was not a trader within 
 the meaning of the Insolvent Act, and Cieighton 
 was not his lawful assignee, and therefore had 
 no title to the land ; that this defence had been 
 sufficiently pleaded, and that section 144 of the 
 Insolvent Act niakit.g the a8signiinmt/»-i»irt/a('(e 
 evidence of the regularity of all proceedings did 
 not apply, as the (juestion was not merely as to 
 ;lie regularity of the proceedings. 
 
 CrdijhtoH, Aitiijnee, v. Chittick >> ul., 
 
 •_'R. &(i.,90; 
 1 C. L. T., 568. 
 
 On appeal to the Supreme Court of Canada, 
 Held, Henry, J., dixnentimj, that by traversing 
 the allegation of plaintiff being assignee, the 
 defendants put in issue the facts implied in the 
 averment that the plaintiff was assignee in 
 insolvency, and that F. was a trader within the 
 meaning of the Insolvent Act of 1869, and as 
 the evidence did not establish that F. bought or 
 sold in the course of any trade or business or got 
 his livelihood by buying and selling, that the 
 plaintiff had failed to prove this issue. 
 
 Per G Wynne, J. — Assuming F. to be a 
 trader, still the defendants were entitled to 
 judgment upon the merits which had been argued 
 
691 
 
 INSURANCE. FIRE. 
 
 692 
 
 at length. That the agreement at nixi priw to 
 the effect that a verdict should be entered for 
 the plaintiff with .?10 damages, subject to the 
 opinion of the Court, that the parties should be 
 entitled to take all objections arising out of the 
 evidence and minutes, and that the Court should 
 have power to enter judgment for or against the 
 defendants with costs authorized the Court to 
 render a verdict for plaintiff or defendants, 
 according as they should consider either party 
 upon the law and the facts entitled ; that the 
 Court, having exercised the jurisdiction con- 
 ferred upon it by this agreement, and rendered 
 judgment for the defendants, this Court was also 
 bound to give judgment on the merits, and as 
 judgment of the Court below in favor of the 
 defendants was substantially correct to sustain 
 it ; and it having been objected that as the rule 
 nixi asked for a new trial, the rule absolute in 
 favor of defendants was erroneous, that such an 
 objection was too technical to be allowed to pre- 
 vail, and that the rule nid having, as it did, 
 recited the agreement at nt.se priiw, and the Court 
 below having rendered a verdict for tlie defen- 
 dants, it should be upheld, except as to tlie plea 
 of liberum tenementum, which should be found 
 for the plaintiff or struck off the record and that 
 to order a new trial could be but to protract a 
 useless litigation at great expense. 
 
 Crei</hton \. Chittick, 7 S. ('. R., 348 ; 
 2C. L. T.,248. 
 
 70. Transfer witbin thirty days in con> 
 
 templation of insolvency — Fraudulent prefer- 
 ence under sec. 1.33 — Merchants Shipping Act, 
 1854 — r., a ship owner in Yarmouth, N. S., 
 employed as his agents in Liverpool, J. & Co., 
 the defendant J. being a member of their firm, 
 and, as agents in New York, he employed the 
 firm of S. P. B., of which the defendant S. was 
 a member. In the course of iiis dealings with 
 these agents he l)ecame indebted to both firms 
 tor acceptances by them of his drafts made wlien 
 he was in want of money, towards the payment 
 of which they received the freights of his vessels 
 and remittances in money. On one occasion he 
 said that he would give to the Liverpool firm a 
 mortgage on the " Tsernogora " or the "Mag- 
 nolia," when they should require it, and, m a 
 subsequent conversation with a member of the 
 firm, he agreed to give such mortgages on cer- 
 tain conditions, which were not carried out. He 
 also promised the fivm in New York to give them 
 security "in case anything happened," and 
 mentioned as such security a mortgage on the 
 ' ' Tsernogora. " According to F. 's own statement, 
 he had sutfioient property to pay his liabilities 
 when these conversations took place. A few 
 weeks after these conversations F. executed a 
 
 mortgage of 20/64 shares of the " Tsernogora," 
 in favor of the defendants J. & S., and had the 
 same recorded, and within thirty days thereafter 
 a writ of attachment in insolvency was issued 
 agamst him. The plaintiff, who was appointed 
 assignee of F.'s estate by his creditors, tiled a 
 bill to have the mortgage set aside, claiming that 
 it was void under section 13.S of tlie Insolvent 
 Act of 1875. The defendant J. did not answer 
 the plaintiff's bill, and the other defcnilanta 
 denied that the mortgage was made in contem- 
 plation of insolvency, and also claimed that, a3 
 it was made under the provisions of " Tlie Mer- 
 chants Shipping Act " (Imperial), it was not 
 affected by the "Insolvent Act of 1875." Tlit; 
 Judge in Etiuity, before whom the cause was 
 heard, made a decree in favor of the plaintiff, 
 and ordered the mortgage to be set aside. 
 
 On appeal to the Supreme Court of Xoia 
 Scotia, 
 
 Held, that the provisions of the Insolvent Act 
 of 1875, with respect to conveyances made in 
 contemplation of insolvency, apply to mortgages 
 on ships, notwithstanding the provisions of the 
 Merchants Shipping Act as to such mortgages, 
 and the provisions of the said Act and the Im- 
 perial Act to remove doubts as to the validity 
 of Colonial laws. 
 
 Weatherbe, J., dissenting. 
 Kinney, Axxiijuee, v. Jonex et al., 5 R. & G., 244. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, affirming the judgment below, Henry, 
 J., dixxenting, that the promise to give security 
 "in case anything should happen," could only 
 mean " in case the party should go into insol- 
 vency," and that the transfer was void under 
 section 133 of the Insolvent Act of 1875. 
 
 Held, alxo, that the provisions of the Mer- 
 chants Shipping Act, did not prevent tlie pro- 
 perty in the ship passing to the assignee under 
 the Insolvent Act. 
 
 Jonex v. Kinney, II S. C. R., 708. 
 
 i 71. Voluntary conreyance, by whom to 
 
 be impeached— A proved creditor alone can 
 impeach a voluntary conveyance as fraudulent 
 against creditors, though, when it is so avoided, 
 it is avoided for the benefit of all creditors. Tlie 
 creditor must put himself in a position to com- 
 plain by obtaining judgment for his detit, and 
 showing that by the settlement he is defrauded. 
 Clarke v. Fulkrton, 2 N. S. D., 348. 
 
 INSVBANCE, FIBB. 
 
 1. Agency— Proof of— Notice of loss - 
 
 Waiver of condition— H. P. represented him- 
 
€93 
 
 INSURANCE, FIRE. 
 
 G94 
 
 self tq be the agent of tlie defendant company, i further that the condition as to payment of 
 
 employing sub-agents, effecting policies, and renewal premiums was never attended to, and on 
 
 paying losses in their name, and it was stated the previous renewal of this policy the premium 
 
 by one of the professed sub-agents of the com- 1 had Ixsen accepted after the commencement of 
 
 puny that H. P. was tlie agent. This was not the term. 
 
 iiontradieted by the alleged agent whose evidence j Held, that the contract for insurance was 
 
 was read at the trial, and who admitted that he I valid, the condition having been waived. 
 
 hml acted as agent of the company, and had sent The Court will, on the argument, be governed 
 
 the preliminary proofs in this case to the com- 
 pany. 
 
 Hfhl, that this was sufficient proof of agency. 
 
 The sixth condition of the policy required the 
 
 insured to give notice of loss in writing forth- 
 
 as to the pleadings by the issue used at the trial. 
 Peppit v. North British <t- Afercanfik 
 
 Iiix. Co., 1 R. & G., 219. 
 
 2. Agent, sub- Authority of— A sub-agent 
 
 with to tlie agent of the corporation at his office i "^ »• Fire Insurance Company has an implied 
 in Halifax, and to furnish preliminary proof to authority in the absence of notice to the contrary 
 the corporation in fifteen days. The fire took to receive renewal premiums, such a power being 
 place January 17th. Plaintiff residing at ; indispensable to the carrying on of the business. 
 Sydney, C. IJ., where the insured property was ^ sub-agent having received a renewal pre- 
 situated, went on the ne.xt day to the sub- ! ir.ium and given a receipt therefor, but acci- 
 agents, who sent a telegram to the agent, and on dentally omitted to remit the premium and 
 January 23rd plaintiff sent the agent a written notify the general agent and the premises having 
 notice, which he received January '27th. The ''^en subse((Ufjntly destroyed by fire, 
 preliminary proofs were prepareil by the sub- Hefd, that the insured was entitled to recover. 
 
 Home ct Colonial A'i'<nra7ice Co., 
 2N. S. D.,'204. 
 
 Gardner 
 
 3. Condition as to occupation of premises 
 
 Over-valuation, fraudulent — Plaintiffs ob- 
 
 agents January S-ind, and received by the agent 
 '' early in February," the agent could not tell , 
 tlie exact date. | 
 
 Held, that the notice of loss was sufficient, ' 
 and that the jury might fairly presume that the 
 
 preliminary proof had been sent in within the tained §5,000 insurance on a mill and machinery 
 fifteen days which did not expire until Febru- ' from defendant Company in addition to §4,000 
 ^'^ "-"'^- ! insured in another office. In a letter from 
 
 The fourth condition provided that no insur- ! plaintiffs to ttieir agents in Halifax, they des- 
 ance sliould be considered in force until the i cribed the mill and machinery as a good risk for 
 premium was actually paid, and that insurance ' §10,000 (for which they were then instructing 
 should expire unless the premium was paid on | them to insure) and estimated that the property 
 or before the commencement of the succeeding 1 could not be replaced for SIS.OOO, although they 
 term. The renewal premium was not actually had purchased it from a bankrupt estate for 
 paid until some days after the commencement of .^.^..^OO. Plaintiffs' witnesses valued the property 
 the term, which was from January 1st, 1875, to ; variously from §12,000 to §20,000 and defendants 
 January, 1st, 1870, but in December, 1874, a | called no witnesses as to the value. 
 post card was sent to plaintiff by the sub-agent j Held, that the verdict for plaintiffs coulil not 
 at Sydney, reminding him that his policy would be disturbed under this evidence on the ground 
 expire January 1st, and adding " If you wish it | of a " false and frau<lulent representation, that 
 renewed please notify us on or before that day.'" j the property insured was worth §15,000 when 
 Plaintiff notified them that he wished it renewed its real value was much less." 
 and received from them a letter dated January, | One of the conditions of the policy required 
 18M,statingthatthepolicywasmarked renewed, i the application to state by whom the property 
 Tlie letter, with the exception of the date and | was occupied, and whether any manufacturing 
 number of the policy, was in print, showing a ' was carried on within or about it, and plaintiffs 
 custom of the office thus to mark policies re- | had described it as a frame building occupied as 
 newed before payment of renewal premiums, and j a water-power saw-mill. It had been built about 
 one of the firm of sub-agents at Sydney swore 1870, and worked for about four months in every 
 
 year for three years, from which time until it was 
 purchased by plaintiffs, in December, 1877, it ap- 
 peared to have been unoccupied and unused as a 
 mill. When plaintiffs purchased they im- 
 mediately went into possession and put their 
 servants in charge ; but the mill could not at 
 
 that audi a practice had been recognized by the 
 agent at Halifax, and that renewals so effected 
 •were understood to stand subject to the agent's 
 disapproval, the sub-agents charging themselves 
 ^'th the amount of the premium in account 
 with the agent at Halifax. This witnoss stated 
 
695 
 
 INSURANCE. FIRE. 
 
 696 
 
 that season be worked for want of water even if 
 it had been in working order. Soon after pur- 
 chasing they set about repaii ing the dam, which, 
 when finished in April, 1878, was carried away 
 by a fresliet, after, which plaintiffs proceeded to 
 build another <lam, abandoning the idea oi 
 working the mill until the increase of water in 
 the autumn. The mill was destroyed by fire in 
 July, 1878. A furtlier condition rendered the 
 policy void for misrepresentation or concealment 
 touching the risk. 
 
 5. Condition -Breach of-PiaintlflT took 
 
 out a policy of insurance against fire, containing 
 among others, the following conditions ; that the 
 company should not be liable to make goo<l any 
 loss or damage if the property insured shoidd be 
 incumbered by mortgage, judgment, or other- 
 wise ; also that all applications for insurance 
 must be in writing, pre|)ared by an authoiized 
 agent of the company, and signed by the appli- 
 cant, or by his authority, and that all statements 
 contained in the application would be taken and 
 
 lltld, that the condition as to defining the deemed to be warranties on the part of the in- 
 occupancy and use hud been sufficiently fulfilled j sured, and that if the property were an eijuity 
 by the application which stated accurately the I of redemption, or if the interest in the property 
 purposes for which the building was erected and j were any other than the entire, unconditional, 
 intended to be used, and for which it was then j and sole ownership of it for tiie use and benefit 
 used as far as the season of the year would per- i of the insured, or if the same should be inunm- 
 mit, and that there had been no such conceal- j bered by mortgage, judgment, or otherwise, it 
 ment as to avoid the risk. ! must be so represented to the company in the 
 
 McGihhon t( al. \l Imperial Fire Innurance Co., application, otherwise the policy sliould be void. 
 2 R. & G., 6 ; 1 C. L. T., 192. | The agent of the Company put to plaintiff the 
 
 i questions in the form of application, and wrote 
 the answers down to and inclusive of No. 0. 
 ! " Does the property to be insured belong exclu- 
 sively to the applicant? The answer being, "it 
 does." Question No. 10. "If incuml)ered, 
 state to what amount," was not put, and thotigli 
 1 the word " no " appeared to have been written 
 i after this question in pencil, it did not appear 
 and solu ownership, it must be so expressed in ^^^^^^ ^^^ evidence that plaintiff had either 
 the written part cl the policy, otlierwise the | ^.^..^^^^^ ^^ authorized it. The application was 
 policy to be void. There was a mortgage to | ^.^^^^j j^^ ^^,^.^^^.g ^^ ..^.^uired. The property 
 secure the sum of 8800 on a portion of the j ^^^ mortgaged at the time for §400. A loss by 
 insured property, no mention of which wasjnade ! ^^^ occurring, plaintiflF brought his action upon 
 
 : the policy. There was no evidence of bad faitii 
 
 4. Condition as to ownersIiip-Overcbarge 
 
 on loss — Findings set aside— Plaintiffs obtained 
 a policy of insurance from the defemlants, con- 
 taining a condition that if the interest of the 
 insured was other than the entire unconditional 
 
 in the policy, but the policy had been effected 
 on the verbal application of one of the plaintiffs, 
 
 or fraudulent intent on the part of plaintiff. 
 
 who testified that he had told defendants' agent | ^^^^_ ,j^^^ ^,^^ plaintiff having accepted a 
 
 that there was a mortgage of §500 on the 
 property, (referring apparently to another mort- 
 gage, an assignment of which was held by two 
 of the plaintiffs, the equity of redemption being 
 in the plaintiff McLeod and another who was not 
 a plaintiff). The building was valued in the 
 claim at §2000, and four of plaintiffs' witnesses 
 
 policy containing the condilion referred to liad 
 violated those conditions, and could not recover, 
 Kennedy v. The Agricultural Ins. Co., 
 1 R. & C.,433. 
 
 6. Condition-Certificate of Magistrate- 
 
 testified that it was worth that amount, a fifth, i A condition in plaintiff's policy of insnrauce 
 that it was worth only $500, while ten witnesses [ required the certificates of the two magistrate* 
 for defendants valued it at sums ranging from j most contiguous to the fire, to be deliveicJ 
 §300 to §500. The verdict was for plaintiffs for j within fourteen days after loss, and provided 
 the whole amount of their claim, not allowing j that, if the claim should not for the space of 
 $149 for the proceeds of property saved. , three months after the occurrence of the fire be 
 
 Held, that as there was undisputed evidence 
 
 of an incumbrance not mentioned in the policy assured should forfeit every right to payment 
 
 and no evidence of fraudulent omission on the 
 part of the company, and further as the claim 
 had been wilfully exaggerated, and the verdict 
 was excessive in that no allowance had been 
 made for salvage, it must be set aside. 
 
 McLeod et al. v. Citizens' Insurance Co., 
 
 3 R. & C, 156. 
 
 in all respects verified in manner aforesaid, the 
 
 or restitution, and time should be of the essence 
 of the contract. A verdict was found for plain- 
 tiff, in April 1877, which kvas set aside after 
 argument had in February, 1878, on the ground 
 that the certificates of the nearest magistrates 
 had not been produced. Plauitiff then produced 
 certificates from the nearest magistrates. 
 
697 
 
 INSURANCE, FIRE. 
 
 698 
 
 Htld, that this was no compliance with tlie 
 conilition, and plaintiff could not recover. 
 O'Connor v. Cointmrcial Union A-^n. Co., 
 
 2 R. & (i., 338. 
 
 7. Condition— Certificate of Magistrate- j 
 
 Pleading — The policy of insurance issued by 
 defeiidivnts to plaintiff required, among other | 
 tilings, as a condition precedent to recovery 
 umler tiie policy, a certificate under the hand of 
 a magistrate or notary public most contiguous 
 tn tlic place of fire. The fire took place at Sable j 
 RivLT, a country district several miles in length 
 ftiid lireadth, and the evidence for plaintiff was 
 merely to the effect that the certifying Justice 
 rosided at Sable River. 
 
 Iltld, that even in the absence of countervail- 
 ing tt'Slimony, as the plaintiff had notice by the 
 pluailings and tlie motion for non-suit that proof 
 of compliance with this condition would bo re- 
 (liiireil, the evidence was not sufficient to sustain 
 the finding of the jury for plaintiff. 
 
 Hirkinx v. Proi'incial Inmrance Co., 
 
 3 R. & C, 176. 
 
 8. Conditions— Certificate or Magistrate- 
 Waiver — A policy of insurance contained a con- 
 ditiiiii re(iuiring the assured in case of loss to 
 procure a certificate as to the matters contained 
 in a statement of loss under the hands of two [ 
 magistrates most contiguous to the place of fire. 
 A further condition provided that no condition 
 should be deemed to have been waived unless 
 the waiver was clearly expressed in writing 
 inilorsed on the policy. The evidence was con- 
 clusive that the two magistrates most contiguous 
 to the place of fire were applied to for their cer- 
 titieate, Init refused to give it, and there was no 
 sutiiuient evidence of waiver. The jury having 
 found that both conditions had been waived 
 and a verdict having been entered on their find- 
 ing for the plaintiff, the verdict was set aside 
 with costs. 
 
 Caldwell \. The Stadacona Fire Insurance Com- 
 paiiy, 11 S. C. R., 212; 3 C. L. T., 94, dis- 
 tinguished. 
 Lo(/aH V. The Commercial Union Asa. Co., 
 
 6R. &G.,309. 
 Affirmed on appeal to the Supreme Court of 
 Canada. 
 
 13 S. C. R., 270. 
 
 9. Condition-Certificate of Magistrate- 
 Waiver - Change of possession — Plaintiff 
 brought his action on a policy of insurance 
 containing a condition requiring, in the event of 
 loss, a certificate from the two magistrates most 
 contiguous to the place of the fire. No such 
 
 certificate was produced, and plaintiff relied on 
 a waiver of the condition, the evidence of which 
 consisted of the fact that when plaintitTs attor- 
 ney handed to defendants' agent a letter forward- 
 ing a certificate from two other magistrates and 
 explaining why a certificate from the two nearest 
 had not been produced, the agent said nothing. 
 Defendants also pleaded a condition as to 
 vacancy of the premises and change in the 
 possession. 
 
 As to the first point, the Court held that the 
 silence of defendants' agent, who had on other 
 occasions expressly insisted on a compliance with 
 all the conditions of the policy, was no evidence 
 of waiver, and the evidence as to change of 
 possession and vacancy being clear, they set 
 aside the verdict taken by consent for plaintiflf. 
 O'Connor v. Commercial Union Insurance Co. , 
 
 3R. &C., 119. 
 
 10. Conditions — Construction of -Over- 
 valuation — Assured entitled to recover not- 
 withstanding, in the absence of fraud — The first 
 condition of the policy of insurance against fire 
 issued by tlie defendant company, provided that 
 "any application, survey, plan or description of 
 the property herein specified, made by or on be- 
 half of the assured, whether referred to herein 
 or not, will be considered a part hereof, and the 
 basis of insurance under this policy and a war- 
 ranty by the insured." The I8th condition read : 
 " Fraudulent over- valuation shall be a bar to 
 any claim against the company, and if the pro- 
 perty insured is found by arbitration or other- 
 wise to be over-valued in the survey and des- 
 cription on which the policy is founded, the 
 company shall only be liable in the absence of 
 fraud, for such proportion of the actual value as 
 the amount insured bears to the value given in 
 such survey or description." 
 
 In the application the property insured was 
 warranted to be of the value of §25,000, but at 
 the trial it was established that the value at the 
 time the application was made did not exceed 
 from 817,000 to $18,000. 
 
 Held, that both conditions must be read 
 together, and that in the absence of fraud 
 under the last condition the assured was entitled 
 to recover for the actual loss shown, notwith- 
 standing the over-valuation. 
 
 DouU et cU. V, 7'Ae Fire Insurance Co. , 
 6R. &G.,511; 
 6C. L. T.,541. 
 
 11. Condition in policy as to rateable 
 
 apportionment— Plaintiflf was insured by defen- 
 dant company under a policy which contained 
 a condition for apportionment of loss with any 
 
699 
 
 INSURANCE, FIRE. 
 
 700 
 
 other coinjNiny in which plaintiff should be 
 inHurcd. 
 
 I'laintiff was iusuii'd at time of \om in another 
 company to the same amount as in defendant 
 company, and defendant comjMvny contended 
 tliiit they were oidy liable for half the loss, and 
 took a rule to set aside a verdict found for plain- 
 tiff for ?191. 71 in excess of half the loss. The 
 first mentioned policy described tlie subject of 
 insurance as " stock and tools in building ami 
 yard to the extent of $10(K)." Under tlie last 
 mentione<l policy which apportioned the amount 
 insured thus : on stock in building, §'2()0 ; on 
 stock in yard, §700 ; on tools and benches in 
 building, §100; the plaintiff received $144.97 
 wliich amount was §191.71 less than half the loss. 
 
 Held, that the verdict could not be disturbed. 
 Ecam V. The Stadacona Fire and Life 
 
 Insurance Co., 5 R. & (i., 88. 
 
 12. Conditions — Limitation ot time for 
 
 bringing action — Verdict for plaintifiF set 
 aside — A policy of insurance issued by the 
 defendant company on plaintitf's house con- 
 tained the following among other conditions : 
 " Every suit, action, or proceeding against the 
 company for the recovery of any claim under or 
 by virtue of this policy shall be absolutely 
 barred unless commenced within the term of 
 six months next after the loss or damage occurs. " 
 The premises insured under the policy were 
 destroyed on the 4th October, 1883, and the 
 action was not commenced until April 18th, 
 1884. 
 
 Held, that under the condition mentioned, 
 notwithstanding another condition deferring the 
 bringing of any action until after the expiration 
 of sixty days from the completion of the proofs 
 of loss, plaintiff was precluded from recovering. 
 
 Also, that the words "loss or damage," in 
 the condition, must be taken to relate to the 
 time of the occurrence of the fire. 
 
 McDonald, C. J., dissenting. 
 
 Verdict for plaintifiF set aside and judgment 
 ordered to be entered for defendant, with costs. 
 Blair v. Sovereign Fire Lis. Co., 7 R. & G., 372 ; 
 
 7C. L. T.,410. 
 
 13. Conditions- Fleadlns-Commencement 
 
 of action — Plaintiff in an action on a policy of 
 insurance, referred in his declaration to " the 
 condition indorsed on the policy, and which 
 constituted the basis of said insurance," but he 
 only set out one condition referring to notice and 
 proof of loss, alleging that it was the only con- 
 dition material to his cause of action, and he 
 averred general performance of conditions. De- 
 fendant pleaded that the action was not 
 
 commenced within six months after alleged loss, 
 and the same was not sustainable under the said 
 conditions indorsed on said policy ; and, by 
 another plea, that by said policy the loss, if any 
 was made payable to one Anderson, ami liufore 
 the alleged loss the defendant company, by 
 notice to said Anderson, ternunated the iusur- 
 ance, and said Anderson agreed to terminiiti' the 
 insurance and deliver up the policy to lie am' 
 celled. 
 
 Held, that these pleas were bad under sees. 
 151 and 152 of the Practice Act, as they did not 
 allege or show that the policy contained any 
 conditions recjuiring the action to be brouglit 
 witliin six montlis, or enabling the Company to 
 terminate the insurance by notice, and tliat tlie 
 objections to the pleas were not such as could be 
 obviated by amending them under section 124. 
 
 Caldwtll V. Stadacona Fire tO Life Ins. Co., 
 
 1 R. & G., '.m 
 
 14. Condition requiring action to be 
 
 brought within six months — New party 
 allowed to be added after six months — Sub- 
 sequent insurance — Notice to Company- 
 Waiver — At the trial of an action on a policy 
 of insurance an amendment was granted more 
 than six months after the loss, allowing a party 
 to be added as plaintifiF, although the policy 
 required the action to be brought within six 
 months. 
 
 JJeld, that the amendment was properly 
 granted. 
 
 Doidl et al. v. The Western Assurance Co., 
 
 6R. &G.,478; 
 6 C. L. T., 539. 
 
 On appeal to the Supreme Court of Canada, 
 
 The question of amendment was not touched, 
 but the decision was upon the following facts 
 in the case : — 
 
 A policy of insurance against loss by fire con- 
 tained the following conditions : — In case of 
 subsequent assurance on any interest in property 
 assured by this company, whether the interest 
 assured be the same as that assured by this 
 company or not, notice thereof must be given in 
 writing at once, and such subsequent assurance, 
 indorsed on the policy granted by this company, 
 or otherwise acknowledged in writing, in default 
 whereof such policy shall thenceforth cease and 
 be of no eflFect. The assured eflfected subse- 
 quent assurance and verbally notified the agent, 
 but there was no indorsement made on the 
 policy, nor any acknowledgment in writing by 
 the company. A loss having occurred, the 
 damage was adjusted by the inspector of the 
 company, and neither he, nor the ageut, 
 made any objection to the loss on the ground 
 of non-compliance with the above condition. 
 
701 
 
 INSURANCE, FIRE. 
 
 702 
 
 Ii' a suit to recover the amount of the policy 
 the od.'ipiiny pleaded breach of the condition, in 
 reply to which the plaintiff set up a waiver of 
 the condition and contended that by the act of 
 the iigtnt and inspector, the company were 
 estopped from setting it up. 
 
 Hdil, reversing the judgment below, that the 
 assured not having complied with the condition, 
 the jxili! y ceased and became of no effect on the 
 siili!-e(|uent assurance being effected, and that 
 neither the agent nor the inspector had power 
 to waive a compliance with its terms. 
 
 Thk WtKlern Aixnrance Co. v. Doull el «/., 
 12 S. C. P.., 446. 
 
 1.5. Insurable interest— 
 
 l\r McDonald, C. J. — The interest insured 
 was that of a mortgagee ; the interest proved at 
 time of loss was absolute owner. There was no ! 
 insurable interest in the plaintiffs covered by the 
 policy, either when the policy was insured or 
 at the time of the loss claimed, and therefore 
 plaintiff must fail. 
 
 Howard tt al. v. LaHcanhire Inn. Co., 
 
 5R. &G., 172. 
 
 Affirmed on appeal to the Supreme Court of 
 
 Canada. 
 
 11 S. C. R.,92; 
 
 6 C. L. T., 26. 
 
 16. Insurable interest— Over-Taluation — 
 
 Preliminary proof — In an action for the amoimt 
 insured under a policy against fire, the defen- 
 dants pleaded over-valuation, want of insurable 
 interest, misrepresentation of title and false 
 swearing in the preliminary proof. The Judge on 
 the trial reserved the question as to the want of 
 insurable interest but submitted the other issues 
 to the jury, who found them all in favor of plain- 
 tiff, and brought in a verdict for almost the full 
 amount claimed. With regard to the interest of 
 plaintiff, the facts were that he was at the time 
 of the loss in possession of the premises under 
 an agreement to pay for the same by instalments, 
 covermg six years. He had paid a portion of 
 the purchase money and had improved the pro- 
 perty by various outlays upon it, yet under 
 the agreement he could not have demanded 
 possession until a few days after the policy was 
 signed. 
 
 H'M, Wilkins, J., dissenting, that the plain- 
 tiff had an insurable interest and that the verdict 
 should be sustained. 
 Humphrey v. London <Si Lancashire Ins. Co., 
 
 2 N. S. D., 39. 
 
 17. Loss-OTercharge f^andaleo'ly made 
 
 —Plaintiffs in their statement of loss by fire 
 claimed that a building constituting part of the 
 
 property destroyed was worth ?20()0. The evid- 
 ence as to the real value of the building was 
 such as to convince the Court that it was not 
 worth when new more than 8800 to SKXHI, and 
 that at the time of the lire it was not worth Uiore 
 than $500. 
 
 11(1(1, that the verdict, which was the second 
 verdict for the plaintiffs, must be set aside on 
 the ground of fraudulent overcharge in the 
 claim of loss, the policy providing tluit the 
 insureil should forfeit all remedies if guilty of 
 " any wilful misstatement with intent to deceive 
 the company as to the amoun of loss." 
 
 McLtod tl al. V. Citiztus' Iii.surance Co.f 
 1 R. &(;., 21. 
 
 IS. Loss — Over-valuation — Fraud nee;a> 
 
 tived — Plaintiff' insured in defendants' othco 
 8300 on a building and ?1 100 on merchandise, 
 ships' stores, ftc, representing the value of tlio 
 property insured to be 81800. The property 
 being totally destroyed by tire during tlie ab- 
 sence of plaintiff, he notified defendants' agenta 
 of the fact, when they said, "obtain the infor- 
 mation (required) after you get home, as soon as 
 possible, and that will do," which plaintiff did. 
 
 Hd(l, that on the question of waiver of strict 
 compliance with terms of policy as to notice, the 
 jury were justified in finding for plaintiff. The 
 jury having in answer to a written question from 
 the Judge, "whether plaintiff made any false 
 representations to the company or to its agents 
 respecting the value of the property insured, or 
 any part thereof, or respecting his claim for the 
 loss, or in any other respect," leplied "incor- 
 rect and unguarded representations through 
 ignorance respecting the value of the building, 
 ships' materials, puncheons," &c. 
 
 Held, that this answer negatived fraud on the 
 part of the plaintiff in the over-valuation of his 
 property, and that the verdict which was for & 
 less amount than the claim must stand. 
 
 Canii V. Imperial Fire Insurance Co.^ 
 1 R. &C.,240. 
 
 19. Loss — Over • valuation In proofs ot 
 
 loss — Pleading — Under conditions in a policy 
 of fire insurance for $400 requiring that in claim- 
 ing for a loss the whole actual cash value of the 
 property insured should be declared, and provid- 
 ing that any fraud or false swearing should viti- 
 ate the claim, defendants pleaded that plaintiffs 
 c'elivered a false and fraudulent ?.;oount of the 
 alleged loss, and that plaintiffs had declared the 
 building destroyed to be worth $600 to induce 
 the defendants to pay him $400, whereas the 
 building was not of that value and plaintiff had 
 not suffered damages to that extent, aa the in- 
 sured well knew. 
 
70;} 
 
 INSURANCE, FIRE. 
 
 704 
 
 ed. 
 
 Held, that tlie tlefuiio was sutticiently pluiid- 
 
 Qa^fonijiiay ft al. v. Soivreii/n Fire. Inx. Co., 
 
 A R. & (i., 3.S4. 
 
 '20. M jsrepr'^sentattons — Concealment — 
 
 Warranty —IMiiiiitiii's were iiisnred l)y defeiulunt 
 c()ni(.any on iiiacliiiiery in iv "spool factoiy. " 
 At tlie time of the apphuatiun there was mach- 
 inery in the huihling for the nianufauture of ex- 
 celsior, which was not however used for the pur- 
 pose till some montlis after the policy was 
 efTected, though it was so used before the re- 
 newal of the policy and nothing was said to the 
 insurers about sucli use. The jury found in 
 answer to questions that tlie more hazardous 
 risk of the two was the manufacture of spools 
 an<l that the risk «'as not increased by adding 
 the manufacture of excelsior to that of spools in 
 the same building. Tlie Court refused to set 
 aside the verdict for plaintiffs on these findings 
 and held that even assuming that tliere was a 
 warranty against the manufacture of excelsior, 
 it oould not be relie<l on under the plea tlint the 
 occupation of tlie premises was not truly descrilied 
 and that plaintiffs had represented that said 
 Iniililing was occupied as a spool factory, wliere- 
 as in fact the same was occupied in a much more 
 dangerous and hazardous manner to wit &c. 
 
 McDonald, C. J., dix.iiutiii;/ 
 
 Moirttal. V. The Sovvrtiijn Fire. In-niranco, Co. 
 
 OR. & (i., r)02; 
 6C. L T., 541. 
 
 Oil appeal to the Siqveme Court of Canada, 
 HM, reversing the judgment of the Court 
 below, that as the manufacture of exceli^ior was 
 in itself a hazardous business, the introduction 
 of it into the building insured would avoid the 
 policy under the following clause in the policy : 
 "In case the above described premises shall, at 
 any time during the continuance of this insur- 
 ance, be appropriated or applied to or used for 
 the purpose of carrying on or exercising therein 
 any trade, business, or vocation denominated 
 hazardous or extra-hazardous . . unless 
 
 otherwise specially provided for or hereafter 
 agreed to by thi.s company, in writing, or added 
 to, or indorsed on this policy, then this policy 
 shall become void." It would so avoid the 
 policy even if the jury were right in their find- 
 ing that it was less hazardous than the manu- 
 facture of spools. 
 
 Held, also, that the addition of the manufac- 
 ture of excelsior to that of spools, in the said 
 premises, was a change material to the risk, and 
 avoided the policy under the following clause : 
 " Any change material to the risk, and within 
 
 the control or knowledge of the assured, s i&ll 
 I avoid the policy aa to the part affected tiiereby, 
 unless the change is promptly notified in writing 
 I to the company or its local agent. " 
 
 Sovereiijii Fire Insurance Co. v. Moir, 
 
 14 S. C. R.,(il2; 
 ' 7 C. L. T., I2<». 
 
 I 21. Mortgagee— Insurance for benefit of 
 
 — Interpleader — Plaintiff mortgaged curtain 
 properly to C. for 8434.50, and covenanted in 
 the mortgage to keep it insured for §")()() in the 
 
 ■ name and for the benefit of the mortgagee. 
 .Subsequently plaintiff effected insurance to the 
 amount of Ijo/O on his own account, witiiout 
 
 I reference to the mortgagee, §180 of which was on 
 the personal property, not covered by tlit 
 
 I mortgage. After loss by fire, the mortgagee, 
 finding that the insurance was not in his naine, 
 demanded an assignment of the policy, offering 
 to secure to plaintiff' the amount due him, and 
 upon his refus.ll, claimed the amount from the 
 company. Defendants paid the S180, and upon 
 action brought for the balance, nn interpleader 
 order was made. 
 
 \ Held, that the insurance inured to the benefit 
 
 ' of the mortgagee, and that he was entitled to 
 interplead, although the claim of the mortgagee 
 was an Mjuitable claim, and the company was 
 
 , under a contractual obligation to the plaintifi', 
 and although tiie claim ot the mortgagee was 
 
 ' smaller than the amount insm-ed. 
 
 McKcnzie v. jF/iia luniranre Company, 
 R. E. I)., ,340. 
 
 22. Mortgagee -Insurance payable to, in 
 
 , case of loss— Preliminary prjof — Who may 
 
 maintain action— Where property was insured 
 
 , in the name of 0., but the policy contained the 
 
 j following clause ; " loss, if any, payable to tlie 
 
 ! order of B. , if claimed without sixty days ufter 
 
 j proof, his interest therein being as mortgagee." 
 
 Held, Dodd, J., di^ttentiwj, that JJ. iniglit 
 
 I brnig an action on the policy in his own name 
 
 I and that he must be taken to be the party 
 
 insured. 
 
 Held, aiio, that it was no objection to 15's 
 recovery, that the preliminary proofs were 
 furnished by him and not by 0. 
 
 Bruihv. /Etna Innurance Co., 1 Old., 459. 
 
 j3. Notice — Conditions - Waiver of- 
 
 Waiver of proof— Defendants resisted payment 
 of insurance on stock in trade of V. J. Gibson 
 on the ground, among others, that they had not 
 had notice of a subsequent insurance as required 
 by a condition of the policy. The subsequent 
 
 insurance was bargained for by Gibson as insur- 
 
705 
 
 INSURANCE, FIRE. 
 
 706 
 
 anuu ill the defendant company, but the agent 
 ap|)liu(l for it to another conifMny, of which lie 
 was aJKo agent, a!id tiihgon knew notiiing of tiie 
 ciiaiijjc until lie got his policy. When the los.s 
 occiiiriMl the defendants eni|iloyed an agent, who 
 took poBseiision of (tihHon'ii i>ookH, agreed to 
 leave to urhitratora as the only (luestion to be 
 decided the amount covered by the j)olicy, and 
 trt'iUed the policy throughout aH being in full 
 force. At tiie trial an amendment was granted 
 more than six months after the loss, allowing 
 (lilisdu to be added as plaintiti', although the 
 j)()licy rc(|uired that the action be brought within 
 six months. 
 
 Hdd, that the amen<lment was properly 
 gnuitcd, 
 
 Ilild, alio, that the conditiim as to subseiiuent 
 insurance was com[)lied with or waived, and that 
 the defective proof of loss was waived. 
 
 Doull ft al. V. The. WeKlKrn Aisurance Co., 
 6 R. & (}., 478 ; 6 C. L. T., .ISO. 
 
 On apiwxd to the Snprume Court of Canada, 
 
 The question of amendment was not touched, 
 liut the decision was upon the follov/ing facts 
 ill the case : — 
 
 A policy of insurance against loss by tire con- 
 tuiiicd the following condition : — In case of sub- 
 se(|Uont assurance on any interest in property 
 assured by this company, whether the interest 
 assured be tiie same as that assured V>y this com- 
 pany or not, notice thereof must be given in 
 writing at once, and such subse([uent assurance, 
 indorsed on the policy granted by this :;ompany, 
 or otherwise acknowledged in writing ; in de- 
 fault whereof such policy shall tlienceforth cease 
 and 1)0 of no cftect. The assured effected subse- 
 (lucnt as.surance and verbally notified the agent, 
 but there was no indorsement made on the 
 policy, nor any acknowledgment in writing by 
 the company. A loss having occurred, the 
 damage was adjusted by the inspector of the 
 company, and neither he, nor the agent, made 
 auy objection to the loss on th.e ground of non- 
 eonipliance with the above condition. 
 
 In a suit to recover the amount of the policy 
 the company pleaded breach of the condition, 
 in reply to which the plaintiff set up a waiver of 
 the condition, and contended that by the act of 
 the agent and inspector the company were 
 estopped from setting it up. 
 
 Held, reversing the judgment below, that the 
 assured not having complied with the condition, 
 the policy ceased and became of no efiFect on the 
 subsequent ass'irance being effected, and that 
 neitiier the agent nor the inspector had power 
 to waive a compliance with its terms. 
 
 The Wentem Assurance Co. v. Doull et al., 
 12 S. C. R., 446. 
 23 
 
 ai. Notice or other Insurance -Condition 
 
 — Defendants issued a policy to plaintiffs contain- 
 ing a proviso that it should cease and )>e of no 
 further effect if the plaintiffs effected any other 
 insurance on same property without notice to 
 defendants. Plaintiffs effected a second insur- 
 ance, without such notice. 
 
 Hfld, that plaintiff's could not recover. 
 
 Cainphdl et al. v. The j-Etna Ins. Co. , 
 Cochran, 21. 
 
 ' 23. Occupation or premises— Condition as 
 
 I to — One of the conditions of the policy recjuired 
 1 the application to state by whom the property 
 I was occupieil, and whether any manufacturing 
 ) was carried on within or about it, and plaintiffs 
 1 had described it as a framed building occupied 
 I as a water power saw mill. It had been built 
 about 1870 and worked for about four months in 
 j every year, for three years, from which time un- 
 I til it was purchased by plaintiffs in December, 
 ! 1877, it appeared to have been unoccupied and 
 i unused as a mill. When plaintiffs purchased 
 ' they immediately went into possession and put 
 I their servants in charge, but the mill could not 
 I at that season be worked for want of water even 
 j had it been in working order. Soon after pur- 
 I chasing they set about repairing the dam, which 
 I wlicn finished in 1878 was carried away by a 
 j freshet, after which plaintiff's proceeded to build 
 : another dam, abandoning any idea of working 
 j the mill until the increase of water in the 
 autumn. The mill was destroyed by tire in 
 I July, 1878. One of the conditions rendered tho 
 ! policy void for misrepresentation or conceal- 
 ment touching the risk. 
 
 t Hild, that the condition, as to defining the 
 occupancy and use, I'.ad been sufficiently fulfilled 
 by the application, which stated accurately the 
 purpose for which the building was erected and 
 intended to be used, and for which it was then 
 used as far as the season of the year would per- 
 mit, and that there had been no such conceal- 
 ment as to avoid the risk. 
 
 McGibbon et al. v. Imperial Fire Inn. Co., 
 
 2 R. & a., 6 ; 
 1 C. L. T., 192. 
 
 26. Overcharge without Intent to defraud 
 
 — Verdict set aside — Plaintiffs brought action 
 on a policy of insurance and the jury in answer 
 to a question whether the claim had been honest- 
 ly made replied ' ' being overestimated but not 
 with the intention of fraud." Butcher, a co- 
 plaintiff, gave very strong evidence to implicate 
 Longley first as being privy to the destruction of 
 the property, and secondly, as having made a 
 false and fraudulent claim. The whole evidence 
 
707 
 
 INSURANCE, F]RE. 
 
 708 
 
 in the opinion of the Court Hhnwed badges of 
 fraud, and altli<iugh tlie jury luid neyiitived in- 
 tentional fraud in tliu statument of thu claim, 
 iheir verdict was for only .^4()0, while the claim 
 had 1)11011 made for 8."i(i5.(M]. 
 
 Hi Id, tiiat the verdict must be set aside. 
 
 On the reading uf the minutes it appeared that 
 the rule nini for a new trial had been made re- 
 turnable in the November term. Olijection 
 having been taken, the Court allowed tiie rule 
 to be ainendeil by Mubstituting " December " for 
 " November " and the argument proceeded. 
 
 Lomjley et al. v. Xorthtru Ini^urnncf Co., 
 
 3 R. & C, 516. 
 
 27. Pleading — Nunquam Indebitatus — 
 
 Defendants in an action on a jjolicy of insurance 
 pleaded with fifteen other pleas nunqiiam iiulehi- 
 tatw, and two pleas alleging that the action had 
 not been brought within six months as recjuired 
 by a condition of the policy ; but there was no 
 plea denying the making of the policy. Plain- 
 tifif rslying on the want of a plea traversing the 
 making of the policy, did not put it in proof and 
 defendants failed to produce it to prove the 
 condition. 
 
 //dd, that the plaintiflf could not be put to the 
 proof of the policy by the plea 7iwiquam ind'.bi- 
 talus but that under such plea, though perhaps 
 demurrable, the defendants might have given 
 evidence of the alleged condition, had they been 
 in a position to do so. 
 
 Quaere, whether the plea of nunquam indebi- 
 tatus is not bad. 
 
 Barrett v. The Isolated Risk Insurance Co., 
 
 1 R. & G., 215. 
 
 28. Proof— Defective proofs of loss — 
 
 Waiver of condition — The condition as to proof 
 of loss specified nine distinct requirements, only 
 three of which were complied with by plaintiffs, 
 who relied on a waiver of the condition by de- 
 fendants' agent. The proof of the alleged 
 waiver consisted of a conversation between the 
 plaintiffs' clerk and defendants' agent, and 
 between the latter and one of the plaintiff. In 
 the first mentioned conversation all that was 
 said by the agent was that he would send up 
 an agent to investigate, and again that there 
 would be no delay in payment when the proper 
 papers were made out. In the conversation with 
 the T laintiflf the agent said that the papers had 
 been sent to England and uothiiig would be 
 done till their return. He said the fire was a 
 fraudulent one, expressed wonder the plaintiffs 
 would trust a man like Strong (the owner of the 
 insured goods which plaintiffs claimed by assig- 
 ment), and the plaintiff in his evidence as to this 
 
 conversation added : "He re(|uircd me to do 
 nothing more than what I did. He did not make 
 any objection to the proof of loss." 
 
 llild, that there was no evidence of waiver. 
 
 Pir Weatherbe, .1. — That the plaiiitifFH evid- 
 ence simply meant that nothing was said by the 
 agent as to the proof of loss, and not that any- 
 thing had been said to induce plaintiffs to under- 
 stand that ol>jectioii would not be taken to thu 
 proofs. 
 
 Howard tt al. v. The Lancashire Insuranrr Co. , 
 
 5R. &G., ITl'. 
 
 On appeal to the Supreme Court of Canada, 
 
 J., the manager of appellant firm, insuiccl 
 the stock of one S,, a debtor to the firm, in tlie 
 name and for the benefit of the uppuilant. At 
 the time of effecting such insurance, J. repres- 
 ented appellant to be mortgagee of the stock of .S. 
 The debtor S. becauie insolvent, and J. was ap- 
 pointed creditors' assignee, and the property of 
 the insolvent was conveyed to him by theolliei.il 
 assignee. On March 8th, 1876, S. made a bill 
 of sale of his stock to J., having effected a com- 
 position with his creditors under the Insolvent 
 Act of 1875, but not having had the same con- 
 firmed by the Court. The insurance policy was 
 renewed on August 5th, 1876, one year after ita 
 issue. On January 12th, 1877, the bill of sale 
 to J. was discharged and a new bill of sale given 
 by S. to the appellant who claimed that the 
 former had been taken by J. as his agent, and 
 the execution of the latter was merely carrying 
 out the original intention of the parties. The 
 stock was destroyed by fire on March 8th, 1877. 
 An action having been brought on the policy it 
 was tried before Smith J. , without a jury, and a 
 verdict was given for the plaintiff. The Supreme 
 Court of Nova Scotia set aside this verdict, and 
 ordered a new trial, on the ground that plaintiff 
 had no insurable interest in the property wheu 
 insurance was effected, and that no interest sub- 
 sequently acquired would entitle him to maintain 
 the action. 
 
 One of the conditions of the policy was " that 
 all insurances, whether original or renewed, 
 shall be considered as made under the original 
 representation, in so far as it may not be varied 
 by a new representation in writing, which in 
 all cases it shall be incumbent on the party in- 
 sured to make when the risk has been changed, 
 either within itself, or by the surrounding or 
 adjacent buildings." 
 
 Held, (1.) That the appeal should be heard. 
 Eureka IVoolen Mills Company v. Moss, 11 S. C. 
 R., 9, approved and distinguished. 
 
 (2.) That the appellant having had no insur- 
 able interest when the insurance was effected, 
 the subsequently acquired interest gave him no- 
 
709 
 
 INSURANCE, LIFE. 
 
 710 
 
 claim to tliu luiietit of the policy, the renowalof 
 the (ixixting policy being merely ii continuiiiico 
 of till' origiiiiil contract. 
 
 Howard v. The l.ancaxhire Akk, Co., 
 
 II S. C. K., »-2; 
 OC. L. T., L'ti. 
 
 'iO. Proof of I08H- lertlflcatc of Mugl8> 
 
 trate— When one of the comlitionH of a policy 
 requires a eertiticatc from tlie inagi»trato most 
 contiguous to tliu place where the lire oc- 
 curred, stating Buch lire to have been auciilental, 
 eti'., the furnishing such a certilicate is a condi- 
 tion precedent to iiis rigiit to claim for any loss, 
 A certificate signed by a magistrate ten miles 
 distant, where there are otiicrs within a mile of 
 the tire, will not be sutKcient. 
 
 The Court will not reciuire a rule nUi to set 
 fortli all the grounds on wiiich the party liopes 
 to obtain a new trial. 
 
 Moody V. yEtna Insurance. Co. , 
 
 2Thom., 173. 
 
 30. Waiver required by condition to be In 
 
 writing— Amendment refused— Insurable in- 
 terest of husband in wife's property — After a 
 general verdict for plaintiff in an action on a 
 policy of insurance, defenilant moved at the 
 argument to add a plea setting up the defence 
 thr.t the action had not been brought within six 
 months, as required by the conditions of the 
 policy. The amendment was refused. See 
 AMENDMENT, II., 3. The policy of insurance 
 contained a condition that no requirement as to 
 proofs of loss should be waived unless in writ- 
 ing. The proofs of loss were defective, and the 
 Court held that there had been a waiver, but as 
 it was not in writing the verdict was set aside. 
 Caldwell v. The Stadacona Fire <t' Life Ins. Co. , 
 
 3R. &G., 218. 
 On appeal to the Supreme Court of Canada, 
 The following facts in the case were involved 
 in the decision : — 
 
 A. effected insurance on C's property, on 
 whicii he held a mortgage, under authority from 
 and in the name of C. , with loss payable to him- 
 self. During the continuance of the policy the 
 company notified A. that the insurance would 
 be terminated, and advised him to insure else- 
 where. Such notice also stated that unearned 
 premiums would be returned, but no payment 
 or tender of the same was made according to 
 conditions of policy. A. took the policy to 
 the agent of insurers, who was also agent of 
 the W. Ins. Co., and left it with him, direct- 
 ing him to put the risk in the latter Company. 
 No receipt was given, and the property was 
 destroyed by fire immediately after. The 
 Company resisted payment on the ground that 
 
 the policy was surrendered, and contended 
 on the trial, in addition, that C. had parted 
 with iiis interest in tlie proj)erty by giving u 
 deed to one H, who had reconveyed to C's wife, 
 and that proper proofM of loss had not been 
 given, chiiming, in reply to a plea of waiver, 
 in regard to such proofs, that such waiver 
 should have been in writing, according to a 
 coiulition in the policy. Tliey had refused to 
 return policy on demand. 
 
 Hi III, reversing the judgment below, Fournier, 
 .1., itissi ntiiiij, that C. had an insurable interest 
 in tlic property at the time of the loss, as the 
 husl)and of the owner in fee and teiuint by the 
 curtesy initiate, and having hail also an insur- 
 able interest when the insurance was effected, 
 the policy was not avoided by the ileed to 15. 
 
 Tiiat the company, by wrongfully witldiolding 
 the policy, were estopped from claiming that 
 proofs of loss had not been given acc(M-ding to 
 indorsed condition, and were equally estopped 
 from setting up the condition requiring waiver 
 of such proofs to be in writing, if such condition 
 applied to waiv.^r of proofs of loss. 
 
 That the measure of damages, recoverable by 
 tenant for life of the insured premises is the full 
 value of such premises to the extent of the sum 
 insured. 
 
 Per Fournier, J., dissenting, that the sending 
 of the circular by the company, and compliance 
 with its terms by the assured in giving up the 
 policy to the company's agent, was a surrender 
 of said policy, and plaintiff therefore could not 
 recover. Under the practice in Nova Scotia 
 where the wife is improperly joined as co-plain- 
 tiff with the husband the suit does not abate, 
 but the wife's name must be struck out of the 
 record and the case determined as if brought by 
 the husband alone, 
 
 Caldwell v. The Stadacona Fire cfc Life 
 /;w. Co., II S. C. R., 212; 3 C. L. T., 94. 
 
 31. Writing— Assignment of policy need 
 
 not be in writing — 
 
 ^ce ASSIGNMENT, III., 5. 
 
 INSURANCE, LIFE. 
 
 1. Action for cancellation of policy ot 
 
 life insurance — Insurable interest — Wager 
 policy — 14 Geo. 3, c. 48 — Policy obtained 
 by insured on his own life for the benefit 
 of another having no interest held good — 
 E. F. B. made application to the plaintiff com- 
 pany for and obtained a policy of insurance upon 
 his life for the benefit of defendant. The 
 premiums were paid by E. F. R. , and defendant 
 had no knowledge of the existence of the policy 
 
711 
 
 INSURANCE, LIKK. 
 
 712 
 
 until after the deatli of lliu iimiircil. I'laintitf 
 uppliuil to huvo thu polioy lU'liviTijil up to bu 
 caiiuflltiil nil tliu grDiiiicl tliat ilcfeiidaiit liail no 
 inttfrcMl liuiiutii'ially, pecuniary or otlierwini! in 
 tiiu life of the iuMured. The policy having heen 
 applied for and the preniiuni» paid in good faith 
 by K. V. U., 
 
 //■'/'/, that defenilant was entitled to recover, 
 and that the rule where inHurance is applied for 
 on the life of another and no in^^urablo interest 
 did not apply. 
 
 'J'he Xorth Amtricaii LiJ'i' Axmirance Co. v. 
 
 Craifien, 6 R. & (i., 440; 
 fl ('. L. T,, MS. 
 
 On appeal to the SiijrrevK. Court of Canatla, 
 
 The statute 14 IJuo. 3, c. 48, enacts : 1. That' 
 no insurance shall be nuvde by any person or 
 persons, bodies politic or corporate, on the life 
 or lives of any person or persons, or on any other 
 event or events whatever, wherein the person 
 or persons for whose use or benetit, or on wliose 
 account, such policy or policies shall bo made, 
 shall have no interest, or by way of gaming or 
 wagering ; and that every insurance made con- 
 trary to the true intent and meaning of this Act 
 shall be null and \(iid to all intents and purposes 
 whatsoever. i 
 
 2. That it shall not be lawful to make any 
 policy or policies on tho life or lives of any per- 
 son or persons, or other event or events, without 
 inserting in such policy or policies the name or 
 nai7ies of the person or persons interested there- 1 
 in, or for what use, benetit, or on whose account, ' 
 such policy is so nuide or underwritten. i 
 
 3. Tliat in all cases where the insured hath 
 an interest in such life or lives, evont or events, 
 no greater sum shall be recovered or received 
 from the insurer or insurers in such life or lives, '■ 
 or other event or events. 
 
 Jle/d, affirming the judgment below, that this I 
 statute never was intended to prevent a person ! 
 from eflfecting a bonajide insurance on his own 
 life, and making the sum insured payable to 
 whom he pleases, such insurance not being ' ' by 
 way of gaming or wagering " within the mean- 
 ing of the first section of the Act. 
 
 Held, also, that section 2 of the said Act 
 applies only to a policy on the life of another, 
 not to a policy by a man on his own life. 
 The North American Life Am. Co. v. Craigen, 
 
 13 S. C. R., 278. 
 
 2. Agent of life Insurance Company — 
 
 Competency to give evidence of conversation 
 with deceased insured — 4th R. S., c. 96., s. 41, 
 same as 5th R. S., c. 107, a. 16 — The agent of a 
 Life Insurance Company is not competent to give 
 evidence on behalf of such company of any state- 
 
 ments or acknowledgmentH of tho doceaseil iimur- 
 ed in an action by his executor or administrator 
 against such coi,ipany, under 4tli Rev. Stats., c. 
 iMl, H. 41. 
 
 Wilkins, J,, ditxiutiwj. 
 O'Doiinill v. Coiij'i'dnralion Li/f Ini, Co., 
 
 2 R. &('.,. 170. 
 Rcverseil on appeal to the vSupreme Court of 
 Canada. 
 
 Cas. Digest, 'JOS. 
 
 3. life Insurance policy— Assignment of 
 
 policy directly to wife of insured — Title not 
 passed —New trial ordered — Amendment — 
 Costa — R, 1*. H. effected two policies of insur- 
 ance upon his life with the defendant company. 
 Tho first for JjKKHJ payable to his wife ami 
 children. Tiio second for $1, ;')()!) was payable ti) 
 his executors, a<lministrators, or assigns. Prior 
 to his death li. 1'. 15. indorsed the second policy 
 as follows ;— I liereby hand over to my wife, liur 
 maiden name being S. J. .S,, all the interest in 
 this policy for the benetit of herself and her 
 children. (Sgd.) R. P. P.. Plaintitf sued on llio 
 two policies on behalf of herself and her cliil- 
 (Iron. 
 
 Htld, that she was entitled to recover on the 
 first policy but not the second. 
 
 An imperfect assignment from a husband to a 
 wife cannct be regarded as a declaration of trust 
 in her favor. 
 
 The assigmnent of the second policy having 
 been made directly to the wife was invalid to 
 pass the title ; and if tiie policy was held by the 
 representative of tho husband in trust for tiie 
 wife, the title would Ijc solely in him and he only 
 would have the right to bring tho action 
 for the amount and give a valid discharge, as- 
 suming that a trust in favor of the children 
 could be created by such an instrument, litere 
 was no trustee, as the wife could not take a valid 
 title from her husband, and she could not siistaiu 
 an action as trustee for the children until slie 
 had been appointed by the Court. 
 
 A new trial was ordered on the second policy 
 the plaintiflF to have the right to add parties 
 within a time fixed without payment of costs. 
 The costs of the argument to abide the final 
 result. 
 
 Bliss V. The ^tna Life Insurance Co., 
 
 7 R. & G., 363. 
 
 4. Endowment policy— Amount of liisur> 
 
 ance payable to insured after 30 years, or in 
 the event of death to his father— Construction 
 of contract— Payment of premiums by insured 
 raises no equity in favour of his representa- 
 tives — J. A. M. applied for and obtained a policy 
 of insurance upon his life for the sum of ^2500, 
 
713 
 
 INSURANCE, LIFE. 
 
 714 
 
 thi* iinioiint insured under tlio tcrnm of tliu policy 
 bi'ing niiidt' {xiyiililc! to J. A. M. at tliu I'lid of 
 thirty yt'iun, if licHliould livoso long, otiiurwinu, 
 to liii* fatliiT, \V, n. M,, wlioHu niiniu wiiH Hignud 
 to tilt' apiilication. At tliu tinio tliu inHiirance 
 WHS flFi'Lted J. A. M. wus mnnairii'd, liut muIimu- 
 (|ucntly niai'i'iud tliu plaiutitF, l>y wliom liu Inid 
 i»8Uf. All tliu j)rt;ruiiimH wuic paid liy .J. A.M., 
 mill tliL'i'u WiiH no iiiilL'litL'diu'HH on hit* part to 
 liis father. 'I'hu lattiT dii'd in .luno, IH74, and 
 liiH estate wiiH adniiniHtured and tliu tinal 
 nct'ounts paiiHud in Xovx'nil)er, 1877. Aftor the 
 (U'afli of liiN father, d. A. M. had some cones- 
 jKiiidi'iiL'o with tho company with the \'icw of 
 having the policy altered ho ati to make tho 
 luiiiiiint insured payaMe to hix wife, hut the 
 c'lmii^'e was not completed, aa the company re- 
 quired a release from persons interestetl in the 
 father's estate, and some of these were infants. 
 On the death of the insured, the defendant, the 
 Biirviving administrator of W. 15. \V., denuuxled 
 and was paid hy the insurance company tho 
 amount of tho policy, and an action waa there- 
 ujMin hrought by the widow and atlministratrix 
 of .r. A. .M. to compel the defendant to pay 
 over the money so received, on the ground tliat 
 the amount l)ulonged to the estate of J. A. M., 
 anil not to the estate of liis fatlier. 
 
 Ill III, that there was a clear contract between 
 J, A. M. and W. H. \V. on the one part, and 
 the insurance company on the other, that in the 
 event which had happened the insurance should 
 be paid to the representatives of \V. B. W. 
 
 AUo, that the payment of the premiums by 
 J. A. M. raised no eijiiity in favour of the plain- 
 tiff as his representative. 
 
 Mumford v, Mumford, 7 R. & G., 210 ; 
 
 7C. L. T., :«.-.. 
 
 5. Mistake In amount of premium — 
 
 Reforming a policy of insurance— Where the 
 
 agent of a life insurance comjiany continued for 
 Boiiie years to receive, by his own mist.ike, 
 premiums from a party assured, at a mucli less 
 rate than that established in the published tallies 
 of the company, and the plaintifT had every 
 opportunity of examining and did e,\ainine such 
 tallies, and probably was aware of the mistake, 
 HiM, in an action by the insured for partici- 
 pation in the profits, that the plaintiff could not 
 recover, and that the company were entitled to 
 have the policy reformed. 
 
 Belcher v. International Life Anxurancc 
 Society of London, Cochran, .3.5. 
 
 6. Policy— Delivery of— Not countersign- 
 ed, effect of — An action was brought on a policy 
 of life insuriuce on the margin of which was a 
 
 blank printed a* follow* ; " Thiit p<iliey is not 
 valid unlesti countersigned by , , . agent at 
 . . . counterHigned this . . , day of . . . 
 187 .. . agent." The Act incorporating tho 
 defendant (Vimpaiiy made the tiigiuhture of the 
 President or V'ieel'rt'sident ami General .Manag* 
 er, with the common seal of tiie association n 
 sutlicient execution of the policy. The policy 
 was thus executed but not countersigned. Tho 
 agent swore that it had never been delivered aa 
 a policy, but had merely been handed to tho 
 parly on whoso life it waa to be ctFected for 
 perusal, and tliat the premiinn had not been ten- 
 dered until after the deatli liy the plaintiff, ffo 
 also swore that although the policy was executed 
 in October, 187'J, it had remained in his posses- 
 sion until .May, 187.1, but plaintiff swore that ho 
 had seen it in the hands of the deceased in 
 November, 1S7'2, and twc other persons gave 
 similar evidence, besides which, there were cir- 
 cumstances in the case favorable to plaintiff's 
 statement. The j)olicy recited that tho pre- 
 iniun) had been paid. 
 
 I/cld, that on tho weight of evidence as to 
 delivery of the policy tho verdict for plaintiff 
 must be sustained, that the condition as to coun- 
 tersigning was not warranted by tho charter of 
 the ('onii)any, and even if it were so warranted, 
 would be entirely inoperative being only a mean- 
 ingless blank form on the margin without signa- 
 ture or seal and not embodied in tho policy. 
 O'Donnell v. Confederation Life. lux. Co., 
 '2R. & U.,'2.'}1 ; 1 C. L. T., 711. 
 
 Hi.ld, on the evidence, Fournier and Henry, 
 JJ., diiHcntinij, that the policy had not l)een 
 delivered to the assured as a complete instru- 
 ment and, therefore, that the appeal should bo 
 allowed. 
 
 Per G Wynne, J., — The instrument was de- 
 livered as an escrow to the agent, not to be 
 delivered as a binding policy to W. O'l). until 
 the premium should be paid, and imtil the agent 
 sliould, in testimony thereof, countersign tho 
 policy, and there was no suHicient evidence to 
 divest the instrument of its original character of 
 an escrow, and to hold the defendants bound by 
 the instrument as one completely executed and 
 delivered as their deed. 
 
 Confedi-.ration Life Am. Co. v. O'Donnell, 
 10 8. C. R.,92; 2 C. L. T., 337. 
 
 On the new trial of this cause the jury found 
 that the premium had been paitl and the policy 
 delivered to the deceased insured as a completed 
 instrument, and a verdict was entered for the 
 plaintiff and atfirmed by the Supreme Court of 
 Nova Scotia. 
 
715 
 
 INSURANCE, MARINE. 
 
 716 
 
 On appeal to the Supreme Court of Canada, 
 Held, affirming the judgment below, Ritchie, 
 C. J., and G Wynne, J., dissenting, that the 
 necessity of cou'itersigninj by the agent was not 
 a condition prb^edent to the validity of the 
 policy, and the jury having found that the pre- 
 mium was paid, their verdict should stand. Th", 
 judgment on the former appeals in this case 
 was, on this point, substantially adhered to. 
 Confederation Life Ass. Go, v. O'Donnell, 
 
 1.3 S. C. R.,218; 
 9C. L. T.,211. 
 
 meeting of the company iu March, 1837, it was 
 resolved that the plaintiff had a good claim. 
 
 Held, that although plaintiff could not recover 
 on the policy, he "ould recover on a count added 
 by leave setting out that the defendants had 
 contracted to furnish a policy such as the com- 
 pany had been in the practice of furnishing at 
 the date of the application, and had neglected 
 and refused so to do and to insure his vessel 
 thereby. 
 
 Robertson v. Dudman, 1 R. & C, 50. 
 
 INSURANCE, MARINE. 
 1.. Abandonment — Total loss— When a 
 
 cargo of salt lish insured under a policy contain- 
 ing the ordinary memorandum clause, was 
 injured by salt water, and the vessel was so 
 damaged as to be forced into a port of refuge, 
 from whence she could not reach her port of 
 destination, without sucli a delay as would have 
 occasioned the total destruction of the cargo the 
 owners may abandon and claim for total loss. 
 The fact of the master being consignee and 
 selling at another than the port of refuge will 
 not destroy owner's claim. 
 Fairbanks et al. v. Union Marine Ins. Co., 
 
 2 Thorn., 67. 
 
 2. Action for not furnisbInK policy con- 
 tracted for — Plaintiff, wlio was a member and 
 director of the Commercial Insurance Co'y, 
 applied for a policy of insurance on the " Rising 
 DaMTi," and the application was entered 27th 
 Oct., 186.5, in the book kept by the company, of 
 which defendant was a member, and one Patch, 
 a broker, was Secretary. On the 31st Oct., 
 186.5, there was an entry in the books of the 
 following resolution, " not allowed under policy 
 to proceed to any port in South Greenland." 
 Plaintiff had called on the date of the application 
 to see if it was accepted, and asked the broker 
 if anything more was to be done, to which the 
 broker replied, " no, your vessel is insured," but 
 plaintiff did not get his policy until the winter 
 of 1866, and did not then open it, but upon subse- 
 quently examining it found that it contained the 
 Greenland clause, of which he had never before 
 heard. Notice had been given to him that the 
 directors would not insure a vessel to Greenland, 
 but not until after the vessel had sailed, and on 
 obtaining a copy, plaintiff remarked to the 
 broker, "that does not apply to my case," to 
 which the broker replied, " no it does not." The 
 vessel was lost in April, 1866, and at a general 
 
 3. Affreement— Insurance on voyage- 
 Insurance on time— An agreement contained 
 the following covenant: "And whereas, the 
 said R. I. Hart and W. Hart (defendants) have 
 agreed and do hereby agree, in consideration of 
 the said I. W. Young and I. Hart (plaintiffs) 
 executing and delivering to them a bill of sale 
 of their portion of said vessel (which was done) 
 to take from said Edward Vigneaux (who was 
 purchasing her) new notes for the said purchase 
 ; money, and also have agreed to keep the said 
 I brigantine insured for the full amount of tiie 
 purchase money, and to obtain from the said 
 Edward Vigneaux a collateral security or lien 
 on the said vessel in tlie shape of a mortgage 
 until the said purchase money shall liave lieen 
 fully paid," " and also in the event of the said 
 brigantine being lost at any time previous to the 
 I time of payment of the last instalment of pur- 
 I chase money, to pay over to plaintiff one luilf of 
 ! the insurance money due en said vessel free of 
 I conimissiona." 
 
 I Held, that an insurance on a voyage or an 
 
 adventure in wliich plaintiffs, who had ceased to 
 
 i own any portion of the vessel liad no interest^ 
 
 and which niiglit not be available to plaintiff did 
 
 not satisfy the covenant, but tiiat it called for 
 
 I " insurance on time." 
 
 Younij et al. v. Hart et al. Judijmeut of the 
 I Court delivered by Wilkins, J., 11th Awjiist, 
 
 1S75. 
 
 4. Average adjustment of-Foreign ad- 
 justment, proof of— Time policy, effect of— 
 Defendant, a British subject resident in this 
 
 ' province, insured his brigantine on a time policy 
 with the plaintiffs. Tlie vessel while on a voyage 
 
 [ from Liverpool, G. B. , to New York sustained 
 damage wliich was the subject of general average. 
 The average was adjusted at the port of destiii- 
 
 ' ation and was pleaded by <lefendant as a set off 
 to an action on the premium note. It appeared 
 
 ■ that the average as adjusted at New York 
 amounted to a larger sum than if adjusted in 
 Nova Scotia. 
 
717 
 
 INSURANCE, MARINE. 
 
 718 
 
 Held, that the underwriter is bound to reim ■ 
 burse all such general average charges aa have 
 been assessed on the insured by a foreign adjust- 
 ment if correctly settled according to the law 
 of the port of adjustment. 
 
 Alio, that a time policy unless there be special 
 restrictions confers the pover of sailing from 
 any port domestic or foreign and in this province 
 foreign employment must be understood to be as 
 much in the contemplation of the owner and in- 
 surer as domestic use. 
 
 Semhle, that the foreign adjustment to be 
 binding must be clearly proved to have been 
 made iu strict conformity with the laws and 
 usages of the foreign port and would doubtless be 
 set aside or corrected for fraud or gross error. 
 A von Marine Inn. Co. v. Barteaux, 
 
 2N, S. D., 195. 
 
 5, Broker, agent of plaintiff— Misrepre- 
 sentation of voyage— Notice of abandonment 
 necessary although suit is for not issuing 
 policy— Plaintiff applied to one Haley, who 
 acted as a broker for the .Shipowners' As- 
 sociation of Windsor, and also for the defen- 
 dant company doing business at Halifax, for 
 insurance on one-fourth interest in a vessel on a 
 voyage from Cochin to New York via Colombo 
 aud Alipee. The broker replied that the " Ship- 
 owners' Marine " did not care for the risk, but 
 lie thought he could place her. Plaintiff wrote 
 him, saying in substance : — " You may place 
 insurance on Charlie at your figures. I think 
 it sliould be done for tliree per cent, but do tlie 
 Ijest you can. Let me know as soon as possible." 
 Q'he broker then applied to the defendant 
 company for insurance on plaint iflPs vessel 
 " Cochin, Alipee and Xeio York." but tlie vessel 
 sailed aud was lost on a voyage from Cochin via 
 Colombo and Alipee to New York. 
 
 Held, Tiuvt the broker was the plaintiflPs agent 
 and inasmuch as the insurance he applied for 
 was on a different voyage from that on which 
 tlie vessel sailed and wa? lost, the plaintiff must 
 fail. 
 
 Httd, further, that notice of abandonment 
 was necessary, although the suit was brought, 
 not on the policy of insurance, but for not 
 issuing a policy. 
 
 Dickie v. Merchants' Marine Inmrance Co. , 
 4R. &G.,244. 
 
 6. Concealment — Knowledge of defend- 
 ants before issuing policy — Explanation of 
 minutes by Judge — When plaintiffs applied 
 throuijli their agent for insurance on goods, the 
 defendant was unaware of a disaster to the ship 
 known to the plaintiP.s, but not to the agent 
 
 who made the application. Befare the policy 
 issued, defendant became aware of the disaster 
 to the ship, and the Judge at nisi prius found 
 chiefly upon the defendant's own admissions 
 that he did not issue the policy because of his 
 supposed obligation under the slip, but elected 
 to take the risk notwithstanding the disaster, 
 of which he had become aware. 
 
 Held, Weatherbe, J., dissenting, that the 
 plaintiff could recover, notwithstanding the con- 
 cealment at the time of the application. 
 
 Held, that the Court in banco could receive 
 the explanation of the Judge as to the nature of 
 the question to which a statement of defendant 
 on the minutes of evidence was an answer. 
 Royal Canadian Ins. Co. v. Smith, 
 
 5R. &G.,322. 
 
 On appeal to the Supreme Court of Canada. 
 The appellant (defendant) was a member of 
 an insurance association, doing business at Hali- 
 fax, known as the Halifax Marine Insurance 
 Association. 
 
 On the 1.3th August, 1880, the respondent 
 company (plaintiffs) through J. Scott Mitcliell, 
 their agent, applied to the association for insur- 
 ance on the cargo of the steamship " W^alden- 
 sian," on a voyage from Montreal to Glasgow, 
 via port or ports, and the risk was accepted the 
 same day by the appellant and otlier under- 
 writers, but no policy was issued or pren;ium 
 paid at the time. 
 
 The " Waldensian " left Montreal on the llth 
 August, 1880 ; she got aground that afternoon 
 about four o'clock, but succeeded in getting off 
 the same day and proceeded to Quebec, where 
 she arrived about six o'clock, leaking badly, and 
 was there grounded to prevent furtlier damage 
 to cargo. 
 
 Tlie re.ipondent company knew on the r2th day 
 
 of August of the accident to the steamsliip, but 
 
 this fact was not disclosed to the underwriters 
 
 when the insurance was applied for on the 13th, 
 
 thi! day following. The appellant became aware 
 
 j of the accitlent a day or two after the application 
 
 for insurance, and a policy was after tliat issued 
 
 1 to respondent company, bearing date the 13th 
 
 : August, 1880, (the date of the application), and 
 
 I the premium settled in account with tlie broker 
 
 I of the association, of which appellant was a 
 
 member. 
 
 i Appellant contended there was no evidence 
 ; whatever that the appellant, or any of the under- 
 writers, or their broker, knew at the time that 
 the policy was issued or premium paid that the 
 ; accident was known to the respondent comjwny 
 at the time the insurance was effected, and con- 
 cealed from the underwriters. 
 This action was brouglit to recover for damage 
 
719 
 
 INSURANCE, MARINE. 
 
 720 
 
 done to the cargo by the leaking of the ateamship 
 in consequence of her getting on shore as above 
 stated. The appellant pleaded among other 
 things, that the respondent company conceiiled ! 
 from appellant a fact known to respondent and 
 material to the risk, and unknown to the appell- 
 ant, viz. , that the steamship iiad been on shore j 
 after leaving Montreal. j 
 
 The respondent replied that aftev appellant \ 
 became aware of the facts alleged in the said 
 pleas, he took the premium and issued the policy. ' 
 
 The cause was tried before Mr. Justice Rigby, j 
 at Halifax, on 7th Nov., 188.S, who found that 
 when the insurance was applied for, and the 
 contract therefor completed, the respondent \ 
 company was aware of tlie facts above stated, 
 and concealed them from appellant, also that i 
 they were not then known to appellant, and 
 were material to tlie risk. He also found that 
 before the policy was issued or premium paid | 
 the appellant became aware of said facts, and 
 elected to treat the contract as binding, and he 
 found a verdict for the plaintiffs (the respondents) { 
 for the amount claimed. j 
 
 A rule nisi to set aside the verdict was ilis- 1 
 chargedby the Court, Weatherbe, J., ditisentintj. 
 
 A rule absolute discharging the rule nisi was 
 granted on the '22nd day of April, 1884, from 
 wliich rule the appellant, Allison Smith, ap- 
 pealed. 
 
 Held, that the evidence showed that at the 
 time of payment of the premium the appellant 
 did not know that the accident was known to 
 the respondent company, and the policy, there- 1 
 fore, was void for concealment of material ftiots 
 and there could be no waiver of the omission 
 to communicate the information material to the 
 risk, for the appellant could not waive that 
 which l;e did not know. 
 
 Smith v. The Royal Canadian Inn. Co., 
 18th November, 1SS4, Cas. Digest, 217. 
 
 1, Commencement of risk— Indorsement 
 
 on policy construed with policy— Varying 
 risk — Under a policy to cover a vessel from the 
 " commencement of loading," and the goods 
 froni " the loading thereof on board" at a parti- 
 cular place the risk will commence at the sailing 
 from thai place, although the vessel was loaded 
 prior to her arrival at the terminun a quo, pro- ; 
 vided there is anything to indicate that a prior ! 
 loading was intended by the parties to the 
 policy. 
 
 Permission indorsed on a policy of insurance 
 subsciiuently to its execution <uul prior to the 
 commencement of the risk, permitting a vessel 
 for an additional premium to use a port out of 
 the course of the voyage previously insured in- 
 
 cludes permission to take in cargo at that port 
 but does not alter the termini of the original 
 voyage. Under such circumstances the policy 
 and memorandum will be taken together and 
 receive a reasonable construction according to 
 the circumstances and course of the voyage. 
 
 A transaction occurring prior to the arrival of 
 the vessel at the lerminun a quo, by which her 
 arrival at that termimifi was not delayed nor the 
 risk varied nor increased, held not to vitiate the 
 policy. 
 
 Bliss, J., and Uodd, J., dinxentiinj. 
 Creiyhlou v. Union Marine Inn. Co., James, 195. 
 
 8. Condition as to prior insurance — 
 
 Plaintiff's policy of marine insurance contained 
 a condition that if the insured had made any 
 other insurance on the property prior to the 
 date of the policy, the insurers would be 
 answerable only for so much as the amount of 
 such prior insurance should be deticient towards 
 fully covering tlie premises thereby insured. 
 It appeared to the Court that under prior insur- 
 ances the plaintiff had been fully indemnified, 
 and the verdict for the plaintiff was accordingly 
 set aside, with costs. 
 
 Kenny v. Union Marine Ins. Co., 
 
 1 R. &G.,313. 
 
 9. Conditions limiting time to bring 
 
 action— Time of filing claim — Proof of breach 
 of warranty — In an action on two policies of 
 insurance issued by the defendant con)pany, on 
 the hull, materials, &o., and on freight on board 
 the schooner " Marion Robertson," at and from 
 Charlottetown, P. E. I., to St. Johns, N. F., 
 the defendant relied, (1) on a condition that no 
 suit or action should be sustainable unless com- 
 menced within twelve months next after the 
 deposit of the claim for loss or damage at tlie 
 ofhce of the assurers ; and (2) on an alleged vio- 
 lation of a warranty that the vessel would sail 
 on her voyage not later than the 3rd day of 
 December, 1882. 
 
 The vessel set sail on her voyage on the 3rd 
 December, 1882, and was cast away on one of 
 the islands of Mifjuelon Group, and became a 
 total loss on the 9th of the same month. A 
 protest was prepared by the French officials 
 there, in which the date of sailing was incor- 
 rectly given as Decrmber 4th. Subse(]uently, 
 on January 22nd, 1883, a protsst was entered 
 by the master, before a notary, at B; c:ouch»;, 
 N. B., to which place he had returned, in 
 which, as it was partly prepared from the 
 French protest, the error as to date of sailing 
 was repeated. 
 
 The protest last prepared was received by the 
 
721 
 
 INSURANCE, MARINE. 
 
 722 
 
 company on January 24th, 1883, in support of 
 plaintiff's claim under the policies. A letter 
 was received by the company from plaintiffs 
 about the same time, in which the date was 
 correctly given. The defendant refused to admit 
 any claim, on the ground that the papers sub- 
 mitted allowed a breach of the warranty. 
 
 On the 26th October, 188.3, and on the 4th 
 February, 1884, papers rectifying the mistake 
 as to the date of sailing, which had been ver- 
 bally explained previously, were deposited with 
 the company. 
 
 The action was commenced on the 5th April, 
 1884. 
 
 Held, per McDonald, C. J., McDonald, J., 
 concurring — That the period of twelve months 
 from the deposit at the office of the insurers of 
 the claim for loss or damage, which concluded 
 tlie plaintiffs' right to recover, must be consid- 
 ered to date from the filing of the amended 
 proofs. 
 
 /'e»- Ritchie, J., Smith, J,, concurring — That 
 the company havmg been informed by letter by 
 the plaintiffs prior to February, 1884, of the 
 correct date of sailing, the statement in the 
 protest could not be considered misleading, and 
 tlie preliminary proofs at that time being suffi- 
 cient to enable plaintiffs to recover, the time 
 hmited for bringing the action had expired be- 
 fore the suit was commenced. 
 
 Aho, that defendant would have to prove, 
 and might waive a breach of the warranty. 
 
 Al-<o, that even if the protest admitted a 
 breach of warranty, it could not be given in 
 evidence to prove that plea. 
 
 liohtrUoH et al. v. Piujh, 20 N. S. R., 
 
 (8 R. &G.), 15. 
 
 On apjual to the Supreme Court of Canada, 
 Hdd, affirming the judgment below, that there 
 was a compliance with the warranty "to sail 
 not later than 3rd December, 1882," in the policy 
 on liie hull, but not with the warranty " to sail 
 from Charlottetown not later than 3rd December, 
 in the policy on the freight. 
 
 //(/(/, rt/.<o, that the protest was a claim for 
 loss or damage within the meaning of the condi- 
 tion in the policy, and the action was too late. 
 Kohertson v. Pu(ih, 15 S. C. R., 706 ; 
 9C. L. T., 17. 
 
 10. Construction of exceptions in policy 
 
 -" In" substituted for "of"- Defendants issued 
 a policy of insurance containing a condition that 
 the plaintiff was not to use the ports of Big Glace 
 Bay, Schooner Pond, Blockhouse Mines, or 
 Bridgeport, C. B., except during June, July and 
 August. The loss occui red in October, at a place 
 kno^v-n as " the Port of Caledonia," on the same 
 
 coast, and abovit three-quarters of a mile from 
 the workings of Big Glace Bay. The "port of 
 Big Glace Bay " had, at the date of application, 
 and of the issuing of the policy, ceased to exist 
 as a port for vessels, and the Port of Caledonia, 
 which was within the limits of the Bay, had 
 been substituted therefor. 
 
 Held, that the loss was within the risk ex- 
 cepted, and that the policy might reasonably be 
 construed as if the word " in " were substituted 
 for the word "of." 
 
 Campbell v. Canada /»(•■*. Union, 
 
 3R. &C.,21. 
 
 11. Construction of policy— A policy of 
 
 insurance on freight contained the following 
 words : — " Which insurance is hereby declared 
 to be upon freight on coal under deck, valued at 
 S6000, in the ship or vessel called the Maggie 
 P. S. Lord, whereof, etc., lost or not lost, at and 
 from Pictou, to and at Aspinwall. And these 
 insurers do promise and agree that the insurance 
 aforesaid shall commence at and from as above, 
 and .■ihall coiitimie upon the freight and goods, 
 or merchandise on board thereof from the 
 loadimj of the said fjooilx or merchandise on board 
 of the said ship or vessel as above, and until the 
 said (joods or merchandise be dinchari/ed and 
 safely landed at Anpinu-all ax above," — the poliny 
 being on a printed foriii, intended to be adapted 
 to insurance upon either freight or goods, or 
 both, an<l containing all the words necessary to 
 be used in separate policies upon either, the 
 words italicised above being printed. 
 
 Held, that the words, "shall continue, etc., 
 from the loading of the said goods," being in- 
 tended to apply to insurance on cargo, could not 
 govern the previous words, " shall commence at 
 anil from as above," that is, "at and from Pictou," 
 and that the vessel insured being under a charter 
 party, and having broken grounds at Pictou, 
 and taken in a part of her cargo when lost by 
 one of the perils insured against, the under- 
 writers were liable in an action upon the policy. 
 Lorn v. Grant ttal., 1 R. & C, 120. 
 
 12. Construction of policy— Warranty— 
 
 No other insurance — An application for a policy 
 of insurance on a vessel contained the words 
 written on its face, " No other insurance" and 
 ihe policy issued on the application so made 
 contained the words, " Warranted no other 
 insurance. " 
 
 Held, McDonald, C. J., dissentiwj, that these 
 words meant that there should be no other in- 
 surance ( n the vessel during the continuance 
 of the risk. 
 
 Bn.ler v. Merchants' Marine Ins. Co., 
 
 5R. &G., 301. 
 
V23 
 
 INSURANCE, MARINE. 
 
 724 
 
 On appeal to the Supreme Court of Canada, 
 Held, affirming the judgment below, that the 
 words "no other insurance," and "warranted 
 no other insurance," meant that there should be 
 no other insurance on tlie vessel during the con- 
 tinuance of the risk. 
 
 Butler V. Merchant s' Marine Ins. Co., 
 17th February, 1SS5, Cas. Digest, 221. 
 
 13. Construction of policy— Prohibition 
 
 of St. Lawrence— Meaning of word " port" — 
 The policy of marine insurance sued on contain- 
 ed a prohibition to use the Gulf of St. Lawrence 
 between the 5th December and the 5th of April, 
 without additional premium. A subsequent 
 clause ran "not to use the ports of Schooner 
 Pond, Blockhouse Mines and Chimney Corner, 
 except during the months of June, July and 
 August, the use of such ports not to vitiate this 
 policy, except during the time such ports are 
 used." 
 
 Held, that this exception referred only to 
 the ports named, and not to the waters of the 
 St. Lawrence, and that the use of the waters 
 of the St. Lawrence during the prohiliited 
 period avoided the policy. 
 
 Oiven V. Ocean Mutual Marine Int. Co , 
 
 6R. &G.,495; 
 6C. L. T., 540. 
 
 14. Construction of policy and Indorse- ' 
 
 ments on — Must be read together — An action 
 is not maintainable as for a total loss of freight 
 when it appears that the vessel might have been 
 repaired at a reasonable cost within a reasonable 
 time, and conveyed a portion of the cargo to the 
 port of destination. Where a policy of insur- 
 ance was issued on frieght on a voyage "at and 
 from Buenos Ayres to Matanzas, Cuba" and 
 there was an indorsement on the policy : Per- 
 mission granted under tlii." policy for "barque 
 Daniel " to proceed from Monte Video to Car- 
 denas, calling at Barbadoes for orders instead of 
 Buenos Ayres to Matanzas. " 
 
 Held, tliat the policy and indorsement must 
 be read together, and that so read the voyage 
 insured must be taken to have been a voyage 
 from Buenos Ayres to Cardenas with liberty to 
 go to Monte Video as an intermediate port. 
 
 Wilton V. The Merchants' Marine In». Co., 
 
 3 N. S. D., 81. 
 
 15. Constructive total loss— While on a 
 
 voyage from Boston to St Pierre, the vessel 
 insured by the defendant Company mis-stayed 
 and struck off Isle Madame. During the night 
 the tide fell and the vessel was thrown over on 
 her side and damiVgeJ. Surveyors reoomineuded 
 
 that she should i. stripped and sold. This was 
 done and the vessel realized $140. The purchaser 
 got her oflF and after an expenditure of 82,000, 
 more or less, including the price, ran her for 
 two years, at the end of which time she was sold 
 for $1800 ; but at the time of action brought she 
 was lying in Arichat Harbor (to which she had 
 been taken) locked in ice and unrepaired. There 
 was evidence of negligence and want of energy 
 on the part of those in charge but not amounting 
 to barratry. The Court, having power to draw 
 inferences of fact as a jury, sustained the finding 
 of the Judge in favor of plaintiff as tor a con- 
 structive total loss. 
 Almon et al. v. The Providence Washington 
 Insurance Company, 4 R. & G., .533. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, reversing the judgment below, Gwynne, 
 J., dissenting, that the vessel was not a con- 
 structive total loss. Providence Washimjtoti 
 Ins. Co. V. Corbett, 9 S. C. R., 256, approved, 
 The Providence Washington Ins. Co. v. Almon, 
 17th February, ISS:', Cas. Digest, 220, 
 
 16. Constructive total loss— A vessel was 
 
 stranded at the mouth of Shelburne liarl)or, 
 which she was seeking to enter under stress of 
 weather, being on a voyage from Sydney, C. B., 
 to Boston. The harbor was fi'ozen for four miles 
 from tlie town, and the hull, rigging and liaw- 
 sers were incumbered with ice. Her steoring 
 apparatus parting, she struck on the rocks and 
 became stranded early in the morning of Satur- 
 day, at nearly high water. Notice of abandon- 
 ment was given in Halifax on beluilf of tlie 
 owners on the evening of the following Monday, 
 to which the underwriters replied declining to 
 accept it without furtiier particulars, and the 
 vessel was sold on Tuesday after the master had 
 communicated with the owners. Evidence was 
 given that the tide did not suit on Saturday to 
 make any effectual attempt to float the vessel, 
 and that the drift ice prevented getting out 
 more than one anchor ; and there was evidence 
 that all that was useful had been done on that 
 day, that on Saturday night she filled with water, 
 and that on Sunday, a gale coming on, she was 
 bilged. On Monday a winter gale was blowing 
 with heavy sea breaking over the vessel, so that 
 the crew could not survive on board. The vessel 
 was grinding on the bottom and was in danger 
 of going to pieces, so that experienced people 
 thought she was in a hopeless condition. After- 
 wards, by the aid of a favorable tide and by a 
 vessel, not available when the notice of al)an- 
 donment was given, she was got off and repaired. 
 The Judge, who tried the cause without a jury. 
 
725 
 
 INSURANCE, MARINE. 
 
 726 
 
 found for plaintifif, and the Court refused to set 
 the verdict aside. 
 
 Corhett v. Providence Washington Ins. Co. , 
 
 3R. &G., 109. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, reversing the judgment below, 1. That 
 the sale by the master was not justified in the 
 absence of all evidence to show any " stringent 
 necessity " for the sale after tlie failure of all 
 available means to rescue the vessel. 
 
 2. That tlie undisputed facts disclosed no 
 evidence whatever of an actual total loss, and 
 did not constitute v.-hat in law could be pro- 
 nounced either an absolute or a constructive 
 total loss. 
 
 l\r .Strong, J. — The right to abandon must 
 be tested by the condition of the vessel at the 
 time of action brought, and not by that which 
 existed when notice of abandonment was given. 
 
 Providence Wanhinijton Ins. Co. v. Corhett, 
 
 9 S. C. R., 256. i 
 
 17. Constructive total loss — Plaintiffs' 
 
 vessel badly injured at sea was towed into 
 CJuaiitanamo, where there were no facilities for 
 repaiis, and where she would have had to remain, 
 exposed to the depredations of worms, until 
 spars, etc., were brouglit from New York. The 
 owners abandoned, but the underwriters refused 
 to accept and made the necessary repairs at a 
 cost greater than the value of the vessel restored. 
 Held, a constructive total loss of the vessel. 
 Troop et al. v. Jone.i, .5 R. & G., 230. 
 
 18. Constructive total loss — Notice of 
 
 abandonment — A vessel having dragged her 
 anchors in a violent gale, and having been 
 be.iclied ))y the master to save her and the lives 
 of iiis crew, was surveyed, and, in accordance 
 witli the reconnnendation of the survej'ors, sold, 
 witii tlie cargo, botli being insured under time 
 policies Ijy defendants, for the benefit of the : 
 underwriters. No notice of abandonment was ' 
 given, and no effort made with tlie means at ' 
 hand or easily accessible, to eave her, and the 
 sale was expressly prohibited by an authorized 
 agent of the insurers. The vessel was not ' 
 seriously damaged, and after lying on the beach j 
 all winter was sufficiently repaired in two or ; 
 three days by the master, who had purchased her 
 at the sale, to be taken to a port wliere she 
 could be completely repaired. i 
 
 Held, that a verdict for a constructive total 
 loss of vessel and cargo could not be sustained. 
 Le»lie et al. v. Taylor, 1 R. & C, 352, 
 
 19. Constructive total loss — Notice of 
 
 abandonment— The association of which defen- 
 
 dant was a member issued a policy insuring 
 plaintiff's vessel against total loss for the period 
 of one year. The vessel while on a voyage from 
 St. Domingo to Boston encountered a violent 
 storm in consequence of which si;e was obliged 
 to run for Bermuda where she arrived in a badly 
 damaged and leaky condition. A survey was 
 held on February 26th and again on March 10th 
 to ascertain the extent of damage, but in the 
 interim on the 'Jth March the master wrote the 
 plaintiff informing him that the expense of re- 
 pairing at Bermuda would be more than the 
 vessel had cost or was worth and stating that he 
 would abandon her to the underwriters and sell 
 her for the benefit of all concerned. The sale 
 was held on the 13th March and the result com- 
 municated to the plaintiff by letter dated the 
 15tli March. The plaintiff testified that the 
 contents of the first letter were communicated to 
 tlie underwriters and a verbal notice of aban- 
 donment given and a claim for a total loss made 
 but the evidence on these points was contra- 
 dictory. Tlie jury found a verdict for plaintiff, 
 and a rule was taken to set it aside 
 
 Held, )>er .Sir W. Young, C. J. — That the oral 
 abandonment by plaintiff, coupled with the 
 exhibiti(m of the master's letter of the fith 
 March, and his claim for a total loss, was enough 
 to satisfy the law. Also, that the notice was 
 in time, even though tlie sale on the 1.3th March 
 reduced it to a matter of form, and gave the 
 underwriters no option and no opportunity to 
 repair. 
 
 Per Johnstone, E. J. — The time at which the 
 notice of aban<lonment was giveii was essential 
 to plaintiff's right to recover, and it api)earing 
 that the sale was made before the abandonment, 
 or at least that it was doubtful, there must be a 
 new trial. 
 
 If the sale were made before notice of aban- 
 donment to the underwriters, the sale would be 
 the act of tlie agent of the owners, and inasmuch 
 as it would deprive the underwriters of the 
 option of repairing the vessel or otherwise 
 ilealing with her the abandonment would be in- 
 effectual. 
 
 The cost of repairing the vessel taken in con- 
 nection with her value when repaired, would 
 have justified abandonment but the vessel being 
 in a place of safety, and there being regular 
 opportunities for communicating with the owners 
 and underwriters the sale in the absence of such 
 communication was illegal. 
 
 Per Wilkins, J. — The case being one of construc- 
 tive total loss and no circumstance being proved 
 to take it out of the established rule of law due 
 notice of abandonment to the underwriters was 
 an essential condition to the plaintiff right to 
 
727 
 
 INSURANCE, MARINE. 
 
 728 
 
 recover. Notice being essential the onus of 
 establishing it was on the plaintiff. The notice 
 contained in the master's letter of March 6th, 
 supposing it to have been communicated to the 
 underwriters was inctfec^ual as it gave them no 
 opportunity of electing to repair the vessel. 
 Urgent necessity alone, the existence of which 
 was negatived, could have made the sale lawful. 
 ^fortoll V. Pafillo, 3 N. S. 1)., 17. 
 
 20. Constructive total loss — Notice of 
 
 abandonment — Acceptance of abandonment — 
 Plaintiffs insured tlieir vessel with defendants 
 on time, the policy being stated to be -'against 
 total loss but subject to general average," and 
 also containing the following special clause, viz. , 
 "that the acts of the assured or assurers in 
 restoring, saving and preserving the property in- 
 sured in case of disaster, shall not be considered 
 a waiver or acceptance of the abandonment." 
 The vessel was stranded in St. John Harbor, arxd 
 after a careful and competent survey declared to 
 be so much damaged os not to be worth repair- 
 ing, and the plaintiffs thereupon gave notice of 
 abandonnient to the defendants, and ordered a 
 sale of the ship. The defendants sent an agent 
 to the spot, who succeeded in a few days in hav- 
 ing the ship floated and placed in a situation to 
 be repaired, whereupon they notified the plain- 
 tiffs that they declined to accept the aband- 
 onment, and refjuired the plaintiffs to take the 
 vessel and repair her. The plaintiffs, however, 
 proceeded with the sale, and the ship was bought 
 in by the defendants, registered in the name of 
 their agent, and repaired and navigated at their 
 cost and for their benefit for two years. Plain- 
 tiffs claimed for a total loss. 
 
 Held, that although it was not an absolute 
 but €a constructive total loss, notice of abandon- 
 ment hiiving been duly given, the liability of 
 defendants attached. 
 
 That no special form of notice of abandonment 
 was re(juired, pi-ovided the intention to abandon 
 was clearly made out. 
 
 That, as the plaintiffs had acted upon the 
 judgment of competent surveyors, that the ves- 
 sel was not worth repairing, and upon their own 
 hona fide opinion, they weie tjustitied in the 
 abandonment and sale of the vessel. 
 
 And finally, that although if, under the special 
 clause in the policy, the defendants after repfiir- 
 ing the ship, had tendered her back to the 
 plaintiffs, the latter would have been bound to 
 accept her ; yet not having done so, but ret»vined 
 her for their own benefit, they must be held to 
 have accepted the abandonment, and must 
 therefore pay to plaintiffs the full amount of 
 their claim. 
 
 Baker et al. v. Sroivn, 3 N. S. D., 100. 
 
 21. Constructive total loss— Notice of 
 
 abandonment — The insured vessel was, ])y tlie 
 Imrratry of the master, pierced with auger holes 
 and abandoned at sea, but was afterwards found 
 by salvors sent out to search for her in tlie in- 
 terest of the insurers of the cargo, and was 
 towed into port, where she lay in such a condi- 
 tion that one of the witnesses described tlie case 
 as one of physical impossibility to repair. She 
 was, however, repaired, but at a cost far ex- 
 ceeding her value. 
 
 Held, that the case was one of construi;tive 
 total loss, requiring notice of abandonment. 
 
 McDonald, C. J., dinsenliiuj , held that the loss 
 was absolute. 
 
 Cossman v. Wext, 6 R. & G., 461 ; 
 6 C. L. T., 537. 
 
 On appeal to the Privy Council. 
 
 To constitute a total loss within the meaning 
 of a policy of marine insurance, it is not ne- 
 cessary that a ship should be actually annihilated 
 or destroyed. If it is lost to the owner by an 
 adverse, valid and legal transfer of his right of 
 property and possession to a purchaser by a sale, 
 under a decree of a court of competent jurisdic- 
 tion, in consequence of a peril insured against 
 it is as much a total loss as if it had been totally 
 annihilated. Where a ship had been deserted 
 by her master or crew, having been previously 
 placed by them in a sinking condition, but luul 
 been subsequently taken possession of by salvors, 
 towed into port, and there sold, together with 
 ,'.lje cargo, by order of the Admiralty Court, for 
 less than the actual cost of the salvage services, 
 
 Held, in actions upon policies on the ship and 
 freight respectively, that, assuming tlie posses- 
 sion by salvors of a derelict vessel to be only a 
 constructive total loss, the subsecjuent sale cjn- 
 stituteil an actual total loss of both ship and 
 cargo. 
 
 Cosifman :. H'ev^ ; Cosuman v. Britixh America 
 An>i. Co., Consolidated Appeal-:, 
 
 L. R., 13 App. Cas., 160. 
 
 22. Constructive loss of freiglit -Right to 
 
 recover for— Defendants resisted a claim for loss 
 of freigh'^ on the ground that freight had act\ially 
 been earned. The facts were that the under- 
 writers, to whom the vessel had been abandoned, 
 accepted the abandonment under protest, repair- 
 ed the vessel and earned the freight. It was 
 not contended that they did so as agents for the 
 plaintiffs. 
 
 //eld, that the plaintiffs could rot recover as 
 
 for a total loss of freight, freight having been 
 
 actually earned. McDonald, C. J., disnenting. 
 
 Troop et al. v. The Merchants' Marine Lik. Co., 
 
 6R. &G., 323; 6 0. L. T., 454. 
 
729 
 
 INSURANCE, MARINE. 
 
 730 
 
 On aji/iecU to the Supreme Court of Canada, 
 Ifi'/d, reversing the judgment below, that 
 there being a constructive loss of the ship, the 
 action of the underwriters in making the repairs 
 anil earning the freiglit would not prevent the 
 assured from recovering. 
 
 Troop V, Merchants' Marine Inx. Co., 
 
 13 8. C. R., 506 ; 6 C. L. T., 386. 
 
 23. Insurance on height - Constructive 
 
 total loss— Owner must give notice of abandon- 
 ment to recover against underwriter — Plain - 
 tiff sliipped a cargo of deals by the brigantine 
 John D. Tupper from Newcastle, N. B., to 
 C'oniiah Quay, Wales. In getting out of the Bay 
 of Fuiidy the vessel stranded, and the surveyors, 
 wlio were called to examine her, reported that 
 they found her entirely unseaworthy, and recom- 
 Moniled that she should be sold for the Ijenefit 
 of all concerned. A further survey was held, 
 and the surveyors further reported that tiiere 
 were no facilities for repairing the vessel where 
 slie lay, that she would require to be almost 
 entirely rebuilt, and that the cost would exceed 
 her vivlue when repaired. The vessel having 
 been sold where she lay, her cargo, with the 
 exception of a small portion which could not 
 be profitably carried by the owner, was re- 
 shipped to, the port of destination at a cost 
 exceeding the amount of the chartered freight. 
 
 The vessel was taken to St. John, N. B., by 
 the purchasers and repaired, and sailed for 
 Havana with a cargo. 
 
 Held, that in the absence of evidence to show 
 that the vessel was restored to a seaworthy con- 
 dition, and that the cost had not exceeded her 
 vahie when restored, this was not sufficient to 
 bring the case within the application of tlie 
 principle by which the right of abandonment 
 once accrued becomes divested. 
 
 //(Id, further, that the insurers were the 
 proper parties to decide whether to carry the 
 cargo forward or not, so as to earn any diflFerence 
 that could &^made between the charter value of 
 the freight, and what it could have been carried 
 for, and that plaintiff, having been in possession 
 of the cargo at the time of loss and in a position 
 to carry it forward, was bound to give notice of 
 abandonment in order to recover against the 
 underwriters. 
 
 Patch V. Pitman, 7 R. & G., 298; 
 7C. L. T.,374. 
 
 On appeal to the Supreme Court of Canada, 
 Held, affirming the judgment below, in view 
 that there never was any pressing necessity for 
 the sale, or any time wheu the ship was 
 unnavigable, without any reasonable hope of 
 repair; that the damage never was so great 
 
 [ that the owner could not have put her in 
 a state of repair necessary for pursuing the 
 voyage at a convenient and suitable place, and 
 at an expense less than the value of the ship, 
 and that the cargo was not in a perishable 
 condition, but in a place of safety ; there was no 
 
 I ground for saying there was either u total or 
 
 ' constructive total loss, or that there ought to 
 have l)een a loss of the voyage ; and therefore 
 no question of abandonment arose. 
 
 Patch V. Pitman, lOth February, 18S6, 
 
 j Cas. Digest, 219. 
 
 I 24. Deviation— A cargo of flsh was insured 
 
 i at and from Eel Brook, to Halifax. The vessel 
 I after partly loading at Eel Brook, proceeded to 
 j Tuskct Wedge, which was admittedly outside 
 I of Eel Brook, and to Morris Island, which was 
 I seven miles therefrom, and where she took in 
 I supplies. There was no evidence to show a 
 usage that Morris Island was considered the 
 I same as Eel Brook. 
 i Held, that there was a deviation. 
 \ Rodijers v. Jonex, 4 R. & G., 96. 
 
 I 25. Deviation and change of voyage — 
 
 I Distinction between— -Where a vessel insured 
 [ on a voyage from Halifax to Nassau and 
 ; back, arrived at Nassau and sailed thence for 
 I New York, having previously taken in cargo 
 ! at Nassau for New York, and none for Hali- 
 ; fax ; and the captain expressed his deter- 
 j mination before leaving Nassau to return there 
 1 or to some other West India Island from New 
 
 York, and his disinclination to return to Halifax; 
 
 and the vessel was wrecked while on the track 
 i common both to the voyage from Nassau to New 
 j York, and to that from Nassau to Halifax. 
 
 Held, a chamje of voyatje, and not merely a 
 I deviation, or intention to deviate, and that the 
 ; underwriters were not liable. 
 I Crowell V. Geddes, 1 Old., 184. 
 
 26. Deviation— Seaworthiness— A vessel, 
 
 insured from St. George's Bay, Newfoundland, 
 to Halifax, N. S., left St. George's Bay between 
 7 and 8 a. m., November, 18th, ostensibly for 
 Halifax, her ultimate destination being Mon- 
 treal ; was said by the master to have sighted 
 St. Paul's Island about noon of the same day, the 
 mate said twelve hours later, and about 8 or 9 
 o'clock the next morning was left by the crew 
 wrecked, on the north coast of the Island of 
 Anticosti. 
 
 Held, that the verdict for plaintiffs must be 
 set aside on the ground that it was impossible to 
 conclude that the vessel, from the time she left 
 her place of departure to the time of her loss, 
 was pursuing a voyage to Halifax. 
 
731 
 
 INSURANCE MARINE 
 
 732 
 
 HM, alxo, that the fact that the vessel had 
 put into St. George's IJay, disahleil, for repairs, 
 should have been eornniuniuated to the insurers. 
 
 Per Wilkins, J. — That the faut of the vessel 
 putting into .St. (Jeorgos IJivy, for repairs, and 
 the cirounistiinues under which she was wrecked, 
 raised a doubt as to her seaworthiness when in- 
 sured, which could tnly have been removed by 
 proof of a survey at that place. 
 
 Bo ik et al, v. Merchantu' Marine Ins, Co., 
 
 1 R. &C.,288. 
 
 On appeal to the Supremf Court of Canwla, 
 
 Held, under section 22 of the Supreme and 
 Exchequer Court Act, no appeal lies from the 
 judgment of a Court granting a new trial, on the 
 ground that the vertlict is against the weigiit 
 of evidence, that being a matter of discretion. 
 (But see S. C. A. A., 1880, sec. 4.) 
 
 Boak et al. v. Merchants' Marine Inx. Co., 
 
 1 S. C. R., 110. 
 
 27. False representation— Policy, cancel* 
 
 lation of— Premium, retention of portion of — 
 Plaintiffs' written application for marine insur- 
 ance, made October 17th, 1870, to the St. 
 Lawrence Marine Association, of which defen- 
 dant was broker, and in which he was a 
 shareholder, contained the following statement : 
 "Insurance elsewhere not to exceed $2,000." 
 The application was accepted October 25th, 
 1870, and a policy delivered to the plaintiffs' 
 agent, containing no prohibitionagainst insurance 
 elsewhere. T'^e vessel was insured in another 
 company to the amount of $2,000, on the day 
 the application was made, and was further in- 
 sured for $2,000 in November following. 
 
 On the 20th February, 1871, the defendant 
 association, none of the parties having had any 
 intimation of the loss, cancelled their policy 
 on account of such other insurance, charging the 
 plaintiffs' premium up to that date and remitting 
 the portion payable after that date. The vessel 
 was abandoned as a total \tTeck on Feb. 19th, 
 1871. 
 
 Jleld, that the statement in the application or 
 slip was a positive representation of a future 
 fact material to the risk, and that, being false, 
 it avoided the policy. 
 
 McDonald et al. v. Doull, 3 R. & C, 276. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, reversing the judgment below, that the 
 defendants could not be allowed to contend 
 that the cancellation operated, not from 20th 
 February, 1871, up to which date the premium 
 was charged, but from November previous. 
 Appeal allowed with costs. 
 
 McDonald v. D<nill, 24th February, 1879. 
 
 Gas. Digest, 214. 
 
 I 28. Freight, policy on— Necessity of no*^ 
 
 ' tice of abandonment — Plaintiff was insured on 
 freight on a voyage from Mexico to New York. 
 The vessel became leaky and was abandoned at 
 i sea, but was afterwards picked up by salvors 
 I and towed into Norfolk, Virginia. Plaintifl" 
 ' was aware of this, but gave no notice of abandon- 
 ment. 
 
 Held, that defendants were entitled to notice 
 of abandonment, and that it was no answer to 
 this to show that nothing would be gained liy 
 their interposing. 
 McDonald, C. J., disaentimj. 
 Patch v. Pitman, nupra, 23, followed. 
 Cosn)nan v. The Brit inh American Inn. Co., 
 
 6R. &G.,457; 
 OC. L. T., .5.37. 
 For appeal to Privy Council net Cossmau v. 
 Went, supra, 21. 
 
 29. Insurable interest— False represen* 
 
 tations to induce sale — Where goods delivered 
 vendor must disaffirm the transaction before 
 goods can revest in him— Plaintiff brought action 
 on a policy of insurance on certain goods pur- 
 chased from him by one McM., who gave his 
 promissory notes made payable to plaintiff in 
 payment. The goods were of the invoiced value 
 of about $1100 and were insured for $1400 which 
 plaintiff explained was to cover the anticipated 
 profits. By McM.'s directions the goods were 
 sent to the Cordelia for shipment and a bill of 
 lading was taken stating that they were shipped 
 by plaintiff in the Cordelia bound for Margaret- 
 ville to be delivered to McM. or his assignii, he 
 or they paying freight. Instead of being taken 
 to Margaretville they were landed at Moser's 
 Island, and the vessel taxen a few miles out and 
 sunk, all of which was at McM.'s instance. In 
 his writ, plaintiff set out that he and McM., or 
 one or other of them, was at the time of the loss 
 interested in the goods, and that the insurance 
 was made for the benefit of the person or per- 
 sons so interested, and on the trial evidence 
 was given tending to show that no sale or deliv- 
 ery to McM. had actually taken place, and that 
 McM.'s purchase was a fraud on plaintiff, and 
 that he was to have procured a second name on 
 the notes. The jury found these facts in an- 
 swer to questions put to them, and they found 
 a verdict for plaintiff, subject to the opinion of 
 the Court. 
 
 Held, that plaintiff could not recover without 
 showing that he was the owner of the goods ; 
 that the facts in proof showed an absolute sale 
 and delivery to McM. ; that even if McM. 
 had obtained the goods by false representations' 
 (•'. e., as to the additional name to be procured 
 
733 
 
 INSURANCE. MARINE. 
 
 734 
 
 on the notes), yet the property vested in the 
 veiuk'c until the i)hiintifiF liiul done somo act to 
 (h»affirn» the triinaaction, and that the verdict 
 must be set aside. 
 
 Outram v. Smith, 2 R. & C, 187. 
 
 30. Insurable interest- doods deliverable 
 
 to shipper's order, not conclusive evidence of 
 determination of vendor to reserve right to 
 transfer— Plaintiffs agreed with McF., of St. 
 George's Bay, Nfl'd, to sell him certain goods 
 wliicli were shipped on Iward a vessel bound for 
 that place, plaintiffs taking a bill of lading in 
 the usual form, but in which the goods were 
 made deliverable to the shipper's order, one of 
 the copies of the bill of lading being given to 
 McF., or sent to him by the vessel. Plaintiffs 
 insured the goods as their own property, but the 
 Court, Wilkins and McDonald, JJ., dimeiitiinj, 
 drew from the evidence the inference that both 
 the vendors and the vendee had recognized McF. 
 as the owner of the goods during the transit, and 
 at tlie time of the loss plaintiffs having taken a 
 note from McF.'s brother as collateral security 
 for payment of the account, and the plaintiffs' 
 testimony designed to show that the goods had 
 not been paid for or charged to McF. being con- 
 sidered doubtful and unsatisfactory, 
 
 Hdd, that although the fact of the goods 
 heing made deliverable by the bill of lading to 
 the order of the shippers }>rima facie indicated 
 that they intended to reserve the right of trans- 
 ferring the goods, it was not conclusive ; that 
 the sale was complete when the goods were 
 shipped according to McF.'s order, and that the 
 plaintiffs had no insurable interest. 
 
 Pwjh et al. v. Wylde et al., 2 R. & C, 177. 
 
 31. Insnrable Interest— Unpaid vendor- 
 Special property retained by vendor— Wher^ 
 insurance was effected on goods on a voyage 
 from Halifax to Labrador and back to Halifax 
 and in the "description of goods insured" the 
 words were, " merchandise under deck, amount 
 $2000, rate 5 per cent ; premium $100, to return 
 2 per cent if risk ends 1st October and no loss 
 claimed." 
 
 J/eld, that the risk could not be confined to 
 goods shipped at Halifax. 
 
 The insurance was not taken "on behalf of 
 whom it may concern " and it was contended 
 that plaintiffs could not recover being only un- 
 paid vendors, but it appeared that the plaintiffs, 
 had supplied the goods to one Tupper under a 
 special agreement by which they were to have a 
 special property in them. 
 
 Held, that they had an insurable interest, and 
 that, after verdict for plaintiffs it was not sufS- 
 cient cause to set it aside that one of the 
 
 plaintiffs, on cross-examination, had answered 
 that if the goods had been lost without insur- 
 ance the loss would have fallen on Tupper, such 
 answer being rather such plaintiff's view of the 
 legal effect of the agreement than a statement 
 of the terms of the agreement as a matter of fact. 
 Jiumnty et al. v. The Merchautu' Marine 
 
 /»M. Co.,4R. &(;., 220. 
 On a/tjieal to the Sujrreme Court of Canada, 
 Held, affirming the judgment of the Court 
 below, that the policy covered not only goods 
 put on board at Halifax, but all the mer- 
 chandise under deck shipped in good order 
 on board said vessel, during the period mention- 
 ed in the policy. 
 
 Held, alxo, that there was sufficient evidence 
 to show that the plaintiffs had an insurable in- 
 terest in all the goods obtained and loaded in the 
 vessel. 
 
 Merchant-i' Marine Ins, Co. v. Rumney, 
 
 9 S. C. R., 577 i. 
 4 C. L. T., 179. 
 
 32. Insaranee paid over and overvaIa> 
 
 ation then discovered — Action to recover — 
 Defendant was agent for the owners of a vessel, 
 and, acting as such, had her insured with plain- 
 tiffs in the sum of §800. On the vessel being 
 lost the plaintiffs paid him the full amount, and 
 then subsequently discovered that the policy- 
 had been void on the ground of over insurance, 
 the vessel being valued at §4,000 only, while 
 she was insured in two other companies for 
 $6,200 prior to being insured with plaintiffs, of 
 which fact they had no knowledge when they 
 insured her. When this became known to them 
 they sought to recover back the amount paid 
 defendant. The defendant had not been aware 
 of the over insurance, and had acted in perfect 
 good faith. Soon after reoipt of the money, 
 and before notice from plaintiffs, he had account- 
 ed with his principals for the full amount in a 
 settlement between them. 
 
 Held, that defendant could not be compelled 
 to refund the amount. 
 
 Union Marine Ins. Co. v. Metzler, 
 
 3 N. S. D., 331. 
 
 33. Joint or several contract— Barratry 
 
 of the master, being part owner — The case 
 stated for the opinion of the Court set out that 
 the schr. " Khedive " wm insured, by L. H. for 
 and on account of N. S. C, who ownsd eight 
 shares ; D. S., whoowned four sh<< res- U. S., who 
 owned four shares, ftc, and also on behalf of 
 Nathaniel Snow and Jeremiah Snow ; that while 
 said policy was in force the vessel became a 
 total loss by the barratry of Nathaniel and Jere- 
 
735 
 
 INSURANCE. MARINE. 
 
 736 
 
 miali Snow, who were rcBpectively the master 
 anil one of tho ciew, and were part owners of 
 the vessel. The policy was " oa behalf of whom 
 it may concern " and insured the sum in lolido 
 on an entire ship for one premium. 
 
 Ilfld, that the contract of insurance was sev- 
 eral, and that the innocent owners could recover, 
 notwithstanding the barratry of the other own- 
 ers. 
 
 Weatherbe, J., douhlimj, Rigby, J., dixneiithi!/. 
 C'rowell et al. v. Jones, 5 R. & G., '513. 
 
 84 . Loss, total or partial— Plaintiff's vessel 
 
 having run ashore, after ineffectual efforts to re- 
 lease her from the rocks whore she lay, he gave 
 notice of abandonment which the underwriters 
 refused to accept. 
 
 They in the interest of all concerned very soon 
 had her removed, and repaired at a total cost of 
 $1300, and then t<>;i(lered her to the plaintiff 
 who refused to take her, and brought suit for the 
 full amount of the insurance. The defendants 
 appealed from the verdict in plaintiff's favor. 
 
 Hfhl, that there should be a new trial in whicii 
 the inquiry sliould be limited to whether the 
 loss was Mai or partial, the question whether 
 there was or was not any loss having been set- 
 tled by the first trial. 
 
 Delmor v. The Prorincial Inn. Co. of Canada, 
 
 2 N. S. U., 20. 
 
 33. Loss— What determines whether It Is 
 
 total or partial — It is not the statu of the vessel 
 at the time the notice of abandonment is given, 
 but its conditions at the time of action brought, 
 that determines whether the loss is a total or 
 partial one. 
 
 The schooner "Joseph Albino" struck on rocks 
 in an exposed condition, on Nov. 11th, 18.39, and 
 notwithstanding exertions of crew and persons 
 from the shore, was abandoned by the crew on 
 the 15th ; notice of abandonment was given to 
 the underwriters by the assured, on the 19th. 
 On the 20th the underwriters accepted the aban- 
 donment. On the 21st a heavy gale lifted her off 
 the rocks, and she was brought safely into port, 
 whereupon the underwriters on the 27th gave 
 notice that they would not accept the abandon- 
 ment. 
 
 Held, that though at the time the notice of 
 abandonment was given and accepted, the aband- 
 onment was well made, yet, that subsequent 
 events having made that a par ;ial which was 
 formerly a total loss, the assured were only 
 entitled to recover as for a partial loss. 
 
 Kenny et al. v. Halifax Marine Ins. Co. , 
 1 Thorn., (Ist Ed.), 113; (2nd Ed.), 141. 
 
 86. Misrepresentation in contract ol- 
 
 Plaintiff applied for a policy of marine insurance, 
 stating in tiie application that the vessel was 
 to coast principally from Canso to Halifax, 
 using P. K. Island and Newfoundland. Tliu 
 policy differed from the application, cover- 
 ing other risks than those applied for, and con- 
 taining exceptions not in the application. The 
 vessel wan lost on a voyage from Baltimore to 
 St. Thomas, which was within the policy. 
 
 Held, that this was not a case of misrepre- 
 sentation, and that the insured was justitied in 
 sailing wherever the policy permitted. 
 
 Corhett v. McKemie e< o/., 4 R. & G., 50. 
 
 On apiteaJ, to the Supreme Court of Canada, 
 
 Held, reve sing the judgment below, that 
 taking the application and policy together, a 
 perfectly consistent contract of assurance could 
 be made out, namely, a contract to (.ssure tiie 
 vessel for the time named, provided she was con- 
 fined to coasting voyages, and did not, while so 
 employed, use any of tl»e prohibited waters. 
 
 Henry, J., dissentimj. 
 
 McKemie. v. Corhett, 19th June, 1SS3, 
 Cos. Digest, 215, 
 
 37. Mortgagee's interest— Insurance of- 
 
 Authority from owner — Trust for owner as to 
 surplus — Plaintiff being the mortgagee of a 
 vessel caused insurance to be effected to tlie sum 
 of .?5,000 in defendant's office in addition to 
 §5,000 insured in the Anchor Marine Insurance 
 Company. The amount due to the mortgagee 
 was §5,,S06 in addition to which he had adviiiiceil 
 for payment of premiums .?522, making in all 
 §5,828. Plaintiff had received from the sale of 
 the vessel .§1,207, and from the Anchor Marine 
 Insurance Company $4,493, in all §5,700 leaving 
 a balance of §128. The verdict was for §1,32,5, 
 and plaintiff claimed to rdtain it as trustee for tlie 
 owner. The policy was' expressed to be for "E, 
 P. Archbold on account of himself. " The only 
 interest he set up in his affidavit of claim was a 
 mortgage, and the only authority he proved 
 was that claimed in his statement : " The owner 
 authorized me to insure further for my own pro- 
 tection." 
 
 Held, that there must be a new trial unless 
 the parties should consent to reduce the verdict 
 to $128. 
 Archbold v. The Merchants' Marine Ins. Co. 
 
 4R. &G.,98. 
 
 88. Mortgagee— Bight to Insurance- 
 
 Plaintiff, a member of the firm of Black Bros, k 
 Co. , took a mortgage of a vessel which was given 
 by defendants for outfits supplied by that firm, 
 and a policy of insurance was effected to secure 
 
737 
 
 INSURANCE, MARINE. 
 
 73S 
 
 the payment for the outfits. The vessel was lost 
 and plaintiff received the insurance, which ho 
 creditcil in account with one Malcolm, u whom 
 he had agreed to sell 36/64 shares in the vessel. 
 
 Hfld, that the amount received from the 
 insurers must go to the credit of the mortgage. 
 Troop V. Montr el at., R. E. D., 189. 
 
 89. Mortgagee wbo asaigns a> collateral 
 
 has an inaarable interest — Voyage policy 
 —Total loss — Right to recover — Notice of 
 abandonment by mortgagee — Conatruotive 
 total loss— While the barque "Charley" was 
 at Cochin, on or about the 12th April, 1879, the 
 master entered into a charter party for a voyage 
 to Colombo, and thence to New York by way of 
 Alippce. The vessel sailed on the 22nd April, 
 1879, and arrived at Colombo, which place she 
 left on the 13th May, and while on her way to 
 Alippee she struck hard on a reef and was 
 damaged and put back to Colombo. The vessel 
 was so damaged that the master cabled to the 
 ship's husband at New York on the 23rd May, 
 and in reply received orders to exhaust all 
 available means and do the best he could for all 
 concerned. The repairs needed were extensive 
 and it was impossible to get them done there, 
 and Bombay, 1 ,000 miles distant, was the near- 
 est port. After proper surveys and cargo dis- 
 charged, on the 10th June the vessel was stripped 
 and the master sold the materials in lots at 
 auction. On the 21 st May the respondent, a 
 mortgagee of 46/64 in the vessel, which he had 
 assigned to the Bank of Nova Scotia by indorse- 
 ment on the mortgage, as a collateral security 
 for preexisting debts to the Bank of Nova Scotia, 
 being aware of the charter from Cochin to New 
 York, insured his int«rest with the appellant 
 company, the nature of the risk being thus 
 described in the policy : " upon the body, etc., 
 of the good ship or vessel called the barque 
 'Charley* beginning the adventure, the said 
 vessel being warranted by the insured to be 
 then in safety, at and from Cochin via Colombo 
 and Alippee to New York." 
 
 To an action on the policy for a total loss, 
 the defendants pleaded, irUtr alia, 1st, that the 
 plaintiff was not interested ; 2nd, that the ship 
 was not lost by the perils insured against ; 3rd, 
 concealment. A consent verdict for $3,206, for 
 plaintiff was taken, subject to the opinion of 
 the Court upon points reserved to be stated in a 
 rule ni'si, and upon the understanding and agree- 
 ment tf at everything which could be settled by 
 & jury should, upon the evidence given, be pre- 
 sumed to be found for the plaintiflf. 
 
 iTe/d, that the rule nisi for a new trial must 
 be discharged, that the transfer not being in the 
 form which the statute gave for an absolute 
 24 
 
 transfer, and taking the whole words of the 
 transfer together, it was only a mortgage whiuiS 
 left an interest in the party insured. 
 
 Keith V. Anchor Marine Inn. Co., 
 3R. &G.,402. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, 1st. That this was a voyage policy, 
 and that the warranty of safety referred entirely 
 to the commencement of the voyage and not to 
 the time of the insurance. 
 
 2nd. That the fact of the plaintiff having 
 assigned his interest as a collateral security to a 
 creditor did not divest him of all interest, so as 
 to disentitle him to recover. 
 
 3rd. That the vessel in this case being so 
 injured that she could not be taken to a port at 
 which the necessary repairs could be executed, 
 the mortgagee was entitled to recover for an 
 actual total loss, and no notice of abandonment 
 was necessary. 
 
 Per Strong, J. — A mortgagee, upon giving 
 due notice of abandonment, is not precluded 
 from recovering for a constructive total loss. 
 Anchor Marine Ins. Co. v. Keith, 
 
 9 S. C. R., 483; 
 4 C. L. T., 178. 
 
 40. Notice or abandonment— Amendment 
 
 — Plaintiff brought action on a policy of insur- 
 ance on goods supplied for a trading voyage. 
 The vessel was wrecked on the Labrador coast 
 at a place where there was no boat, no wharf 
 and no means of saving the goods, with the ex< 
 ccption of one vessel which had a cargo of her 
 own and could not be compelled to remain to 
 protect the property. To leave the goods in the 
 vessel all winter would have been extremely 
 hazardous and the master sold them without 
 notice. 
 
 J/eld, that considering all the circumstances, 
 the sale was justifiable and therefore notice of 
 abandonment was not necessary. Plaintiff was 
 permitted at the trial to amend his declaration 
 by all<iging the interest in the insurance to ho 
 in one M. along with the others originally 
 named. 
 
 Held, that the Judge had the right to allow 
 the amendment in his discretion. 
 
 Rumsey v. Providence Wcmhington Ins. Co., 
 
 1 R. &6.,393. 
 
 41. Partial loss— Master's aatborlty to sell 
 
 sea damaged goods — Plaintiff shipped a cargo 
 consisting of dry and pickled fish, pork, oats, 
 peas, &c., to Demerara, part of the cargo being 
 on deck, and insured it with defendants. By the 
 policy the latter were not to be liable for partial 
 loss or particular average, unless amounting to 
 
739 
 
 INSURANCE, MARINE. 
 
 740 
 
 five per cent., and m to the oats and dry fish to 
 be free from average unless general. 
 
 On the way the vessel encountered very heavy 
 weather, lost all her deck load, sprung a leak, 
 sustained damage to her rigging and so was 
 compelled to put in to Barbadoes for repairs, 
 where the cargo was landed and, after survey, 
 sold by the master. The cargo was all more or 
 less injured by water, and, according to the 
 evidence, the fish if reshipped would have been 
 of little value when it reached its destination. 
 The 7>laintifi'knew nothing of what had been done 
 until he received the account of sales of the cargo 
 with the protest and survey, and these he at once 
 sent to the defendants. He claimed for a total 
 loss. Defendants contended that the loss was 
 only partial, and that the cargo ought to have 
 been forwarded. From the evidence it did not 
 clearly appear that the cargo was, upon the 
 whole, so injured as that if forwarded to its des- 
 tination the expense would have exceeded its 
 value on arrival there. There was no question 
 but that the master acted in good faith, and just 
 as a prudent uninsured owner would have done 
 under the circumstances. 
 
 Held, that in the absence of conclusive evidence 
 that the cargo might not have been sent on to its 
 destination, at an expense less than its probable 
 value there, the loss must be considered partial, 
 and the defendants liable only for general average 
 thereon, with the exception of the deck load, 
 which was a total loss. 
 
 The proper test iu respect to goods which have 
 been sea damaged and taken to an intermediate 
 port, whether memorandum articles or not, is 
 not whether an uninsured owner would have 
 sold them there, but whether they can be sent 
 on to their destination at a less expense than 
 their value on arrival there, for when the whole 
 or any part of the cargo can be sent on, the 
 master has no authority to sell, nor can the 
 assured recover for a total loss. 
 
 IVatson V. Mercantile Marine Ins. Co., 
 
 3 N. S. D., 396. 
 
 42. Pnrttal or total loss— ArriTal of goods 
 
 in specie at port of destination — General ver- 
 dict — In an action on a policy of insurance on 
 potatoes in which it was stipulated that they 
 should be free from all average unless general, 
 the plaintiff obtained a general verdict by con- 
 sent. The potatoes arrived at the port of des- 
 tination damaged by sea water and very rotten, 
 and evidence was received that they were 
 worthless and would not repay the expenses 
 of taking them out of the vessel, yet 684 bushels 
 were taken out, and deducting charges for duties, 
 custom house, broker and commission, yielded 
 
 net proceeds amounting to $220.80. It was not 
 shown whether the cost of picking and sorting, 
 &c. , exceeded this sum or not. 
 
 Held, that in view of the general verdict by 
 consent, the Court must assume that the jury 
 had found that the potatoes were worthless, as 
 this was the only question for the jury, but that 
 finding was against the weight of evidence, as 
 there was nothing to show that the net proceeds 
 realized were not clear of all expenses, and the 
 burden was on the plaintiff to show that there 
 were expenses that exceeded said proceeds. 
 
 Almon v. British America Asa. Co., 
 4 R. & G., 43. 
 
 43. "Perils of the sea"— Meaning of- 
 
 The plaintiff insured in the office of the defen- 
 dants a cargo of supplies for railway contractors, 
 shipped from Halifax for Campbelltown, N. B. 
 On the voyage, heavy weather was encountered, 
 which obliged the vessel to put into Pictou, 
 where, on a survey being held, it was found she 
 was leaking badly and unseaworthy. After re- 
 maining during the winter at Pictou, she sailed 
 for Campbelltown next spring, where she arrived 
 in May or June. It was found on unloading 
 that a portion of the cargo v^as damaged, having 
 the appearance of being submerged in sea water. 
 The goods were surveyed and ordered to be sold. 
 An agent of the defendants was present when 
 some of the goods were opened, previous to the 
 sale, and did not prohibit it. The jury found 
 for the plaintiff, and the Court refused to dis- 
 turb the verdict, as the evidence had been read 
 to the jury, with the instruction that they were 
 to consider whether the damage was occasioned 
 by the leakage of the vessel from boisterous 
 weather encountered on the voyage, or from 
 some other cause not covered by the policy. 
 The phrase "perils of the sea," in a policy of 
 insurance, extends only to cover losses really 
 caused by sea damage, or the violence of the 
 elements, ex marinae tempestalis discrimine. 
 The words do not embrace all losses happening 
 on the seas, comprehended under the general 
 sweeping words in the policy, " all other perils, 
 losses or misfortunes, that have or shall come to 
 the hurt, detriment or damage of the property 
 assured." 
 
 Murray v. Nova Scotia Marine Ins. Co. , 
 
 1 R. & C, 24. 
 
 44. Policy KTOided by concealment and 
 
 misrepresentation — Plaintiffs applied for in- 
 surance on the cargo of their vessel, the " Albert 
 M," on a voyage from Porto Rico to Halifax. In 
 reply to a question "Where is vessel at present?' 
 the answer was ' ' Loading at last advices, " and in 
 reply to question ' ' When to sail or last advices f* 
 
741 
 
 INSURANCE. MARINE. 
 
 742 
 
 answer, "Latter part of March 20th to 26th." 
 Previous to making the application one of the 
 plaintiffs had a conversation with the mate of 
 the "Bessie Gracie," just arrived from Porto 
 Rioo, who informed him that the "Albert M " 
 sailed from Mayaguez on the 21st March, that 
 the " Bessie Gracie " left on the following day, 
 and had strong head winds on the passage, one 
 day very hea\'y and rough. 
 
 Hdd, that these fact^ should have been com- 
 municated to the underwriters to enable them to 
 make such inquiries as they might deem prudent 
 and necessary. 
 
 Aho, that the withholding of the actual date 
 of sailing was clearly a concealment, and that 
 the answer that the vessel was " loading last 
 advices " was a misrepresentation material to the 
 risk which would avoid the policy. 
 
 Eisenhavitr et al. v. The Provideiice 
 
 Washiw/lon /»w. Co. , 
 20 N. S. R.,'(8R. &G.), 48. 
 
 45. Policy— General words In, do not cover 
 
 barratry of master — The general terms ia a 
 policy of marine insurance, "all other perils, 
 losses or misfortunes that have or shall serve to 
 the hurt, detriment or damage of the aforesaid 
 vessel, or any part thereof," are not sufficient to 
 entitle the insured to recover for a loss occasioned 
 by the barratry of the master, where barratry has 
 not been expressly mentioned in the policy as 
 one of the risks insured against. 
 
 O'Connor v. Merchants' Marine Ins. Co., 
 20 N. S. R.,(8R. &,G.,)514. 
 Affirmed on appeal to the Supreme Court of 
 Canada. 
 
 9 C. L. T., 209. 
 
 46. Policy on behalf of whom it may 
 
 concern — Ratification — Defendant resisted pay- 
 ment of a claim under a policy on the ground 
 that plaintifiTs interest as mortgagee had been 
 satisfied from the proceeds of a prior insurance, 
 and also on the ground of concealment of the 
 fact that the vessel was sailing under the Hay- 
 tian flag. It appeared, however, thr^t plaintiff 
 had insured not only to protect his mortgage, 
 but on behalf of the owners ; or if not so, there 
 was ample evidence of ratification, and the Court 
 therefore discharged the rule to set aside the 
 verdict for plaintifis. 
 
 Seaman et riZ. v. West, 5 R. & G., 207. 
 On appeal to the Supreme Court of Canada, 
 Hdd, affirming the judgment below, that the 
 underwriters were liable, the owners having 
 authorized, or subsequently ratified, the insur- 
 ance efi'ected by the ship's husband, who was 
 under no obligation to disclose his individual 
 interest, in a policy for the benefit of all con- 
 
 cerned, nor to disclose the nationality of the 
 vessel, there being no representation or war- 
 ranty required respecting it by the policy, and 
 no circumstances within his knowledge attach- 
 ing to the national character of the vessel expos- 
 ing her to detention and capture. 
 
 West V. Seaman, 16th February, ISSJ, 
 Cas. Digest, 219. 
 
 47. Premium— Complying with terms of 
 
 policy as to — The insured gave a note for the 
 premium, which became due September 30th, 
 1878. On account of their failure in business 
 previous to this date the defendants demanded 
 and received a guarantee dated August 6th, 1878, 
 for the payment of the note, which they held at 
 the time of the loss, October r2th, 1878, having 
 never returned it to thj makers or demanded 
 payment of it from them. The policy provided 
 among other things that "should the person 
 liable for the premium or any note or obligation 
 given therefore fail in business before the time 
 for payment arrives, this insurance shall at once 
 become and be void, unless and until before loss 
 the premium be paid or satisfactorily secured to 
 the company." 
 
 ffeld, that the terms of the policy were ful- 
 filled and the policy was in force, the premium 
 having been " satisfactorily secured " to the 
 company. 
 
 Corbett v. Anchor Marine Ins. Co., 
 
 2R. &G.,375; 
 2C. L. T., 107. 
 
 On appeal to the Supreme Court of Canada, 
 
 ffeld, affirming the judgment below, that the 
 premium having, on the insolvency of the in> 
 sured, been satisfactorily guaranteed to the com* 
 pauy, the policy was thereby kept in full force 
 and efiect, and did not become void on non- 
 payment of the premium note at maturity. 
 
 Strong, J. , dissenting. 
 
 There was an arbitration clause in the policy, 
 by which arbitrators were to decide any diflfer- 
 ences which might arise between the company 
 and the insured " as to the loss or damage, or 
 any other matter relating to the insurance " in 
 accordance with the terms and conditions of the 
 policy and the laws of Canada, and the obtain- 
 ing of the decision of the arbitrators was to be 
 a condition precedent to the maintaining of an 
 action by the Insured against the company. After 
 the loss the matters in dispute arising out of 
 the policy were submitted to three arbitrators, 
 who awarded 1(6,769.29. 
 
 Held, that the award was binding on the 
 company, the question as to the payment or de- 
 fault in payment of the premium being a differ- 
 ence " relating to the insurance " within the 
 
743 
 
 INSURANCE, MARINE. 
 
 744 
 
 meaning of the policy, and the award not 
 appearing on ita face to be bad from any mistake 
 of law or otherwise. 
 
 Anchor Marine Ins. Co. v, Corhetf, 
 
 9 S. C. R., 73. 
 
 48. Prohibited waters- Saiing with Intent 
 
 to enter, discharges underwriters — A vessel in- 
 sured under a time policy, with a clause prohib- 
 iting her entering the Gulf of St. Lawrence or 
 Straits of Northumberland north of Cape Porcu- 
 pine in the Straits of Canso after the tirst of 
 October, set sail after that date from the end of 
 the wharf at Chimney Corner, C. B. , bound for 
 Montreal, and stranded about a quarter of a 
 mile from the end of the wharf, but before she 
 had cleared the harlwr. 
 
 He/d, that in view of tlie proved intention to 
 enter the prohibited waters, manifested by the 
 imequivocal overt act of setting sail from the 
 wharf at Chimney Corner bound for Montreal, 
 the risk insured against did not attach. 
 
 Ohitvr dictum, that for the purposes of this 
 suit, Chimney Comer ought to be regarded as a 
 port in Nova Scotia. 
 
 Hobertnon et al. v. Stair>f., 1 R. & C, 345. 
 
 49. Beformlng policy— Joseph Banks, one 
 
 of the plaintiffs, applied for a policy of insurance 
 on the brigantine Sophia by tilling up a printed 
 form. "J. Banks & others" were entered as 
 owners, and the "hull arid materials " filled in 
 as wliat was to be ins;urod ; and the application 
 after the printed words "effect the alx)ve on 
 account of," was signed "Joseph Banks." The 
 policy issued by the Company purported that 
 Joseph Banks did make assurance, &c., but the 
 words, " or whom it may concern," were not 
 inserted in the policy. The vessel being lost, 
 the plaintiffs as owners, brought action on the 
 policy, the claim being resisted on the ground 
 that there was not a total loss, but on the trial, 
 the objection was raised for the first time by the 
 defendant's counsel that the policy covered only 
 the interest of Joseph Banks. Plaintiffs then 
 brought suit in the Equity Court, to have the 
 policy reformed on the ground of mistake, and 
 issues were settled by the Eqnity Judge and 
 tried by a jury, who found that there was a 
 mutual understanding between the parties which 
 the policy, as executed, did not carry out, and 
 that to do so it would require to be altered by 
 inserting tlie names of the other registered 
 owners ; which finding there was evidence to 
 justify. 
 
 Held, that the policy must be reformed so as 
 to cover the interests of all the owners. 
 
 Banks ef, al. v. Wilson, R. E. D., 210. 
 
 50. Heformlng policy to make It agree 
 
 with memorandum — Plaintiffs filled up an ap- 
 plication for a policy of marine insurance, 
 describing the risk thus: "voyage at and from 
 Block House Mines to Montreal, vessel arrived 
 at Sydney 2nd August, on chartered freight 
 83000." The defendants l)eing authorized to 
 effect the insurance, inserted in the policy with- 
 out plaintiffs' privity the words, " beginning the 
 adventure upon the said freight from and imme- 
 diately following the loading thereof on l)oard." 
 The vessel was lost at Block House Mines I>efote 
 she commenced taking her cargo on board, and 
 plaintiff! first became aware of the insertion of 
 the last recited words in the policy on being in- 
 formed that the company did not hold them- 
 selves liable. 
 
 Held, by the Judge of the Equity Court, an 
 action having been brought to reform the 
 policy, that the plaintiffs had a right to as- 
 sume that the company in preparing the policy 
 would strictly adhere to the terms in the memo- 
 randum, that had the policy been so prepared, 
 tiie plaintiffs would have Ijad a right to recover 
 under it, and that it must therefore be reformed 
 accordingly. 
 
 Wylde et al. v. Union Marine Inn. Co., 
 R. E. D., 203. 
 
 On appeal to the Sui>reme Court in banco. 
 Held, that the powers of the Equity Court 
 were proporly exercised in decreeing the recti- 
 fication of the policy so as to make it conform 
 with the application. 
 
 Wylde et al. v. Union Marine Ins. Co. , 
 1 R & C, 20J. 
 
 51. Sale by master of ship — When al- 
 lowed— 
 
 On appeal to the Privy Coundl, 
 Held, that the master of a vessel has no power 
 to sell her so as to affect the insurers, except un- 
 der circumstances of stringent necessity : such 
 circumstances as, after sufficient examination of 
 her condition, after every exertion in his power, 
 within the means at his disposal, to extricate 
 her from peril or to raise funds for the repair, 
 leave him no alternative but to sell her as she is. 
 Gobequid Marine Insurance Go. v. Barteaux, 
 L. R.,6P. C. 319; 
 32L. T., 510. 
 
 5i. Seaworthiness— ETldence-The appli- 
 cation for marine insurance described plaintiffs' 
 vessel as "Al," the fact being that she was 
 classed " Al " American Lloyds. Defendanto 
 pleaded in effect that the vessel was unsea- 
 worthy, and that she " had been misrepresented 
 to be a sea-going ship claaed ' Al ' in Lloyds or 
 
745 
 
 INSURANCE, MARINE. 
 
 746 
 
 some similar institution for the classing of ship- 
 ping ; whereas said vessel was not a sea-going 
 ship, but was a centreboard canal boat, built to 
 navigate inland waters only, and was not classed 
 ' Al ' in Lloyds or any other similar institution, 
 but was of inferior quality and of no class what- 
 ever." Evidence was given that she was " per- 
 fectly tight for two days only after leaving port," 
 and also tc show that the classification of " Al " 
 American Lloyds did not give an ocean-going 
 vessel the same character as the corresponding 
 class in English Lloyds. The weight of evi- 
 dence on this point seemed to be with tht plain- 
 tiffs, and, as to unseaworthiness, the presump- 
 tion arising from the condition of the vessel 
 siiortly after leaving port as above described, 
 was rebutted by clear evidence that she was 
 "in good condition and seaworthy when she 
 sailed." 
 
 Tlie Court upheld the verdict for the plaintiffs. 
 
 Eicartet al. v. Mtrchantu' Marine Ini. Co., 
 
 1 R. & G., 168. 
 
 53. Slip— Action on, wbere plaintiff could 
 
 not recover on policy— Prohibition — Limita- 
 tion of action— Plaintiff insured his vessel with 
 certain underwriters, f>f whom defendant was 
 (ine, and among ihe conditions of the policy v ere 
 tliat the vessel should not proceed to South 
 Greenland, and tliat any action upon the policy 
 must be brought within twelve months after the 
 claim for loss had been presented. The vessel 
 was lost on a voyage to South Greenland, and 
 tlic action was not brought until nearly six years 
 after receipt of proof of loss. Plaintiff conten- 
 ilc<l that, independently of the ptdicy, they could 
 maintain an action on the " slip," and also tried 
 to explain away the prohibition as to .South 
 Greenland and to prove a waiver of the condition 
 limiting the time for bringing the action. 
 
 Held, that no action coul' '^c maintained upon 
 the " slip " after a policy had been executed in 
 pursuance of its requirements, and accepted and 
 acted upon by the plaintiff, and the plaintiff 
 having failed to remove the objections founded 
 upon non-futilmentof theconditions above stated, 
 that the verdict of the defendant should be sus- 
 tained. 
 
 Rohert»on v. Lovett ft al., 3 N. S. D., 424. 
 
 54. Time of sailing -Statement as to, in 
 
 application — //tld, that company properly 
 inserted a warranty in the policy in accor- 
 dance with the statement — Plaintiff, a com- 
 pany doing marine insurance business in Mon- 
 treal, were in the hubit of granting policies 
 of insurance on cargoes of grain, and of re-insur- 
 ing the risks in five Halifax offices. There was 
 an oral agreement on the part of the Halifax 
 
 companies to dn the business, " if the risks 
 suited them." On the 17th November, 1880, 
 the defendant companies accepted an application 
 for re-insurance containing the words, in answer 
 to the question " Where to sail ?" " on or before 
 the 20th instant." The defendanto inserted in 
 their policies a warranty that the vessel would 
 sail as stated. She did not so sail, but left sub- 
 se<|uently, and got on shore in the St. Lawrence. 
 It appeared that it was the practice of com- 
 panies to insert such statements in their policies 
 as warranties, and that when time was extended, 
 an increased premium was charged. In this 
 case an application for an extension of time was 
 made and refused. 
 
 In an action to reform the policies by striking 
 out the warranty. 
 
 Held, that the words in the application were 
 not a mere representation, but that there was a 
 mutual contract, by which, in consideration of 
 the defendants agreeing not to charge more than 
 a fixed amount for premiumr,, the plaintiffs con- 
 tracted that the vessel should sail within the 
 time specified. 
 
 That the statement in the application as to 
 the time of sailing was properly inserted as a 
 warranty. 
 
 Royal Canadian Insurance Co. v. I'wjh ; 
 Do. V. Merchant'!' Marine /»).•*. Co., 
 
 20 N. S. R., (8 R. & G.,) 133 ; 8 C. L. T., .378. 
 
 55. Time policy, «bat is covered by a— 
 
 A time policy, unless there be special restric- 
 tions, confers the power of sailing from any port, 
 domestic or foreign, and in this province foreign 
 employment must be understood to be as much 
 in the contemplation of the owner and insurer as 
 domestic use. 
 
 Avon Marine Im. Co. v. Bart faux, 
 2N. S. D., 195. 
 
 56. Total loss witboat notice of aban> 
 
 donment— Recovery for— Plaintiff" 's vessel was 
 stranded July 6th on the western side of Cape 
 (ieorge, in a sudden and violent gale, and on the 
 following morning lay on her side exixjsed to 
 all winds from the north-east and south on a 
 beach composed of sand and boulders, with a 
 reef of rocks outside, over which she had l)eaten 
 at high water the previous night. The master 
 employed surveyors who found her to be hogged 
 and strained, with butts started, rudder un- 
 shipped, anchor and chain gone, sails and rigging 
 damaged, and the tide flowing in and out through 
 an injury in her bottom, the extent of which 
 could not be liscertained, and on their recom- 
 mendation, confirmed by the judgment of the 
 master, she was advertised on the 7th and sold 
 on the 11th July for $200. 
 
747 
 
 INSURANCE, MARINE. 
 
 748 
 
 In a few days she was repaired and kept afloat 
 for eighteen months, when she went on shore, 
 uninsured, and, although she might have been 
 got ofif and repaired, the owners did not think 
 her worth the expense. It appeared that she 
 could never be repaired so as to \ie tight, although 
 she had been put on the marine slip three times 
 for that purpose. The captain went to Anti- 
 gonish, which was twenty miles distant, on July 
 7th, noted his protest, and telegraphed to the 
 agents of the vessel in Halifax, who informed 
 dt^fendant company, but did not give notice of 
 abandonment. The company telegraphed to their 
 agent at Autigonish, who, on the 8th July, pro- 
 ceeded to the wreck and examined her, and told 
 the captain "she was a hard looking sight to 
 try and get off. " The agent promised the cap- 
 tain that he would communicate with the 
 insurers by letter and telegrapli, and would be 
 present at the sale. He telegraphed, and could 
 have been instructed by telegraph in time for the 
 sale, but the insurers wrote instead of tele- 
 graphing, and the agent did not attend the sale. 
 
 J/ehl, that the plaintiff was entitled to recover 
 for a total loss without notice of al)andonment. 
 
 Weatlierbe, J., (U.Hneiilin;i. 
 
 Galloiihe.r v. Taylor, 1 R. & G., 279. 
 
 On appeal to the Sujn'eme Court of Canada, 
 
 Held, that the sale by the master was not 
 justifiable, and tliat the evidence failed to sliow 
 any excuse for the master not communicating 
 with his owner so as to recjuire him to give 
 notice of abandonment, if he intended to rely 
 upon the loss as to'AiI. 
 
 Per (iwynne, J. — It is a point fairly open to 
 inquiry in a Court of Appeal, whether or not, as 
 in the present case, the inferences drawn from 
 evidence by the Judge who tried the case with- 
 out a jury, were the reasonable and proper 
 inferences to l)e drawn from the facts. 
 
 Gallaijher v. Taylor, 5 S. C. R., 368. 
 
 57. Unseaworthiness — ETidence — Mew 
 
 trial — Action on a voyage policy. Plea — unsea- 
 worthiness. The vessel sailed from Halifax on 
 the 6th Octol)er ; on the 7th was found to be 
 leaking, but was readily freed of water ; on the 
 8th was repaired at a marine slip and pronounced 
 thoroughly seaworthy. Proceeded on the voy- 
 age next day, but recommenced leaking ; was 
 again repaired and resumed the voyage on the 
 13th. Arrived at the iishing grounds on the 
 19th, after passing through a severe gale, in 
 which she strained heavily. Was occupied in 
 fishing until the 18th of the following month, 
 when the vessel settled down so rapidly that 
 the crew were compelled to beach her, and she 
 was sold, bringing a very small sum. 
 
 Held, McCully, J., dinsenf.ing, that the e%'i- 
 dence of the gale not being well substantiated, 
 and under the other features of the case, the ver- 
 dict for plaintiff should be set aside and a new 
 trial ordered. 
 
 Conditions imposed in granting new trial as 
 to costs of first trial and of the argument. 
 
 Irvine v. The Xot^ Scotia Marine Iwi. Co. , 
 
 2N. S. D.,510. 
 
 58. Usage not known or acquiesced in by 
 
 underwriters does not bind them — Usage, how 
 proved — Where a cargo insured "at and from 
 Arichat to Halifax" was shipped at Petit de 
 (J rat, a port nearer to Halifax, and distant nine 
 miles from Arichat by water, and one and a half 
 miles by land, and which by the usage of trade 
 in Richmond, the county wherein both ports are 
 situated, appeared to be generally considered 
 and treated by merchants there and by the 
 masters of coasting vessels in Isle Madame, the 
 large island wherein said ports are situated, and 
 also partly l)y merchants in Halifax, as one and 
 the same port with Arichat ; the custom house 
 for both ports was at Arichat ; and the vessel 
 and cargo were lost shortly after the vessel left 
 Petit de (Jrat. 
 
 Held, that tliis usage <lid not bind under- 
 writers unless known to or acquiesced in by 
 them ; and no evidence of such knowledge or 
 acquiescence having beer, given, that the policy 
 never attached, and the underwriters therefore 
 were not liable. 
 
 Usage must be proved by instances, and not 
 by the opinion of witnesses. 
 Hennesxey v. yew Yo}'k Mutual Mar. Int. Co., 
 
 1 Old., 259. 
 
 59. Warranty— Misrepresentation on mate' 
 
 rial point in application— Plaintiffs, an insur- 
 ance company doing marine insurance busi- 
 ness at Montreal, sought to compel the de- 
 fendants, a company engaged in similar business 
 at Halifax, to add a re-insurance clause to 
 a policy issued by them on the ship " Bayue " 
 after the occurrence of a loss. The application 
 had been made for insurance in the ordinary 
 form without reference to re-insurance, but the 
 plaintiffs relied on a verbal agreement or under- 
 standing between the two companies that the de- 
 fendants would re-insure risks taken by the 
 plaintiff company 'f the risks suited them, and 
 on the fact that though this agreement had ter- 
 minated the course of dealing had been the same, 
 the re- insurance clause being added to all poli- 
 cies as a matter of course when returned to the 
 defendant company for that purpose. The ap- 
 plication dated November 6th, 1880, contained 
 
749 
 
 INTEREST ON MONEY. 
 
 750 
 
 the question, "When to sail?" and the answer, 
 " on or before 20th inst." 
 
 The vessel was prevented from leaving on the 
 20th by a snow storm, and application wm made 
 to the defendant company to extend the time for 
 sailing to the 22nd, and refused. 
 
 Hdd, that the defendant company had the 
 right to insert a warranty clause in the policy, 
 and had they done so the misrepresentation, 
 being on a material vital point, would have pre- 
 vented the policy from attaching. 
 
 That the re-insurance clause lieing overridden 
 by tiie warranty would not have enabled the 
 plaintiff company to recover even if added. 
 Royal Ins. Co, v. Jones, et al. , 
 20 N. S. R., (8 R. &G.), 123. 
 
 INTEREST ON MONET. 
 
 1. Claim to, Indorsed on writ— A special 
 
 inilorsenieut on a writ claiming interest, on a 
 sum named, from tlie date of the writ until 
 judgment, gives a plaintiflF no right to interest in 
 cases wiiere he is not otherwise entitled to it. 
 Where a demand is made in writing, under the 
 Interest Act (Revised Statutes, second series, 
 chapter 82, section 4), giving notice to the debtor 
 tluit interest will be claimed, it is still in the 
 option of the jury, or of the Court, when there 
 is no jury, to allow or reject the interest as they 
 shall think fit. 
 
 Xorris v. Taylor, 1 N. S. D., 491. 
 
 2. Determined by rate at place of pay- 
 ment—A verdict for plaintiff for $2670, " with 
 interest," is a verdict on which judgment m vy 
 be entered up, though the note on which the 
 action was brought, payable in Boston, U. S., 
 specified no rate of interest ; the rate of interest 
 at the place of payment, at the time of the trial, 
 to l)e ascertained by a Master of the Court. 
 
 SmUher ef al. v. Wallace, 2 R. & C, 548 ; 
 
 1 C. L. T., 556. 
 On appeal to the Supreme Court of Canada, 
 Held, reversing the judgment below, inter 
 
 alia that the jury should have been directed as 
 to interest. 
 
 2 S. C. R., 598. 
 
 3. No contract to pay— The affldarlt stated 
 
 the debt to be for goods sold and for interest, 
 without alleging a contract to pay interest, or 
 distinguishing the amount due for interest. 
 
 //"-Id, that this was a defect which might be 
 cured by waiver, and that it was so cured in this 
 case by lapse of time, and a step taken in the cause 
 (though the step itself was a nullity), as it ap- 
 peared that the attachment was issued in June, 
 
 1862, and the defendant, in July, 1862, by letter 
 spoke of the suit and admitted the debt, — that 
 judgment was entered in May, 1863, and that the 
 defendant filed an appearance and plea on ?rd 
 October without leave. 
 
 Allan v. Camoell, 1 Old., 405. 
 
 4. Interest added under power In rale 
 
 to increase verdict— 
 
 See CONTRACT, 31. 
 
 5. On Judgment— No claim for interest 
 
 arises upon a recorded judgment until lauds are 
 actually sold under execution, and there is a 
 surplus after paying the debt and costs. 
 
 In instructing a sherifT to levy an execution, 
 it is irregular to direct him to levy for interest 
 on the amount of the judgment. 
 
 Fleiijer v. Taylor, James, 137. 
 
 6. On goods sold— From what time re- 
 
 coverable — Interest is recoverable on goods 
 sold on credit from ihe date at which the credit 
 expired, where such is the usage of trade at the 
 place where the goods are sold, although there 
 may havfj been no previous dealings between the 
 parties, no engagement to pay interest, and no 
 notice under the statute that interest would be 
 claimed, 
 
 Bannerman et al. v. Fullerton, 
 
 1 Old., 200. 
 
 7. On money on deposit In Court— Under 
 
 31 Vic, c. 12, and 37 Vic, c. 13, the Minister 
 of Public Works of the Dominion of Canada 
 appropriated to the use of the Dominion certain 
 lands in Yarmouth County known as " Bunker's 
 I.iland." In accordance with said Acts, on the 
 2nd April, A. D., 1875, he paid into the hands 
 of W., prothonotary at Halifax, the sum of 
 $6,180 as compensation and interest, as provided 
 by those Acts, to be thereafter appropriated 
 among the owners of said island. This sum was 
 paid at several times, by order of the Supreme 
 Court of Nova Scotia, to one A., as owner, to 
 one G., as mortgagee, and to others entitled, less 
 ten dollars. As the money had remained in tlu 
 hands of W. , the prothonotary of the Court, for 
 sometime, H., attorney forG., applied to the 
 Supreme Court for an order of the Court calling 
 upon W., the prothonotary, to pay over the 
 interest upon G.'s proportion of the moneys, 
 which interest (H. was informed) had been re- 
 ceived by the prothonotary from the bank where 
 he had placed the amount on deposit. W. re- 
 sisted the application, on the ground that he 
 was not answerable to the proprietor of the 
 principal, or to the Court, for interest, but did 
 not deny that interest had been received by him. 
 A rule nisi was granted by the Court and made 
 
751 
 
 INTERPLEADER. 
 
 752 
 
 absolute, ordering the prothonotary to pay what- 
 ever rate of interest he received on the amount. 
 
 Held, 1. That the prothonotary was not en- 
 titled to any interest which the amount deposited 
 earned while under the control of the Court. 
 That, in ordering the prothonotary to pay over 
 the interest received by him, the Court was 
 simply exercising the summary jurisdiction 
 which each of the Superior Courts has over all 
 its immediate otficers. 
 
 Fournier and Henry, JJ., dixxentiiuj. 
 
 2. That the order appealed from, being a 
 decision on an application by a third party to 
 the Court, wos appealable under the 11th sec. 
 of .38 Vic, c. 11. 
 
 Fournier, J., dixieiitiiitj, and Taschereau, J., 
 duhitante. 
 
 Reported below as, Iti re Bunker'n Islniid, 
 
 a R. & C, 367 ; 
 On appeal as, WUkiiui v. Onldet, 
 
 3S. C. R.,203. 
 
 8. and Rev. Stats., c. 82— More than 
 
 legal interest— Penalty for taking— Plaintiff, 
 with his brother, the Rev. G. P., entered into a 
 promissory note Nov. ,SOth, 1867, by which they 
 agreed to pay to the order of D. & Co., the 
 defendants, S1400, with interest, in one year 
 after date. When the note fell due, interest at 
 the rate of six per cent, was paid upon it, and 
 the note was allowed to lie over. On Dec. 3rd, 
 1869, plaintiff paid another year's interest, with 
 two per cent, additional, which defendants de- 
 manded for extending the time. 
 
 Held, that the additional charge so made was 
 within the prohibition against taking n.'ire than 
 legal interest, contained in chapter 82, Revised 
 .Statutes (2nd series), and that defendants were 
 liable to the penalties therein imposed. 
 
 Patterson v. Dnffm etal.,3 N. S. D., 52. 
 
 9. Usury— Defence of— Evidence of usury 
 
 — To an action on a promissory note defendant 
 pleaded usury. The note was expressed to be for 
 the sum of £40, but the evidence went to show 
 that defendant actually received only £38, al- 
 though he paid interest upon the larger amount 
 for the spjice of two years. 
 
 Held, that the transaction was usurious, and 
 that plaintiff coidd not recover. 
 
 Hu ..'.'twon v. Dill, 2 N. S. D., 448. 
 
 10. Usury— Defence of -No evidence of 
 
 loan — Action by indorsee against maker on a 
 promissory note expressed to be for the amount 
 of £40 198. 3d. Defence, usury. The note ha<l 
 been transferred from the payees to the plaintiff 
 for the sum of £37, it being then overdue, and 
 
 defendant's liability upon it amounting, with 
 interest accrued, to £42 13s. 3d. There l>eing 
 nothing to show that the transaction partook in 
 any degree of the nature of a loan, and the jury 
 having found that it wac in fact a bona fide sale 
 of the note for what the parties considered its 
 marketable value, 
 
 Held, Wilkins, J., disitentiwj, that the Usury 
 Act had no application, and the plaintiff shoidd 
 recover the full amount. 
 
 Whedock v. Chedey, 2 N. S. D., 49. 
 
 INTERNATIONAL LAW. 
 See FOREIGN LAW. 
 
 INTERPLEADER. 
 1. County Court has power to srant 
 
 interpleader — The County Court has power 
 to grant relief under the sections of the Practice 
 Act, "Of Interpleader." 
 
 Cooittr V. Mylne, 2 R. & C, 382. 
 
 a. Ii! cases of Interpleader, the Court 
 
 may consider the equitable rights of the par- 
 ties — M. Brothers, prior to making an assign- 
 ment under the Insolvent Act, transferred cer- 
 tain policies of insurance to the plaintiff, to whom 
 they were largely indebted for advances. The 
 assignee having claimed the insurance, tiie insur- 
 ers applied for and obtained an interpleader. 
 
 Held, that though policies are usually assigned 
 in writing, a mere verbal assignment, witii de- 
 livery, gives tlie assignee an e(|uitable right to 
 the proceeds. 
 
 Alxo, that in cases of interpleader, a court of 
 
 law may consider the equitable rights of tiie 
 
 parties. 
 
 Maiming v. Bowman, 3 N. S. 1)., 4'2. 
 
 3. Interpleader -Replevln-Fresta secur- 
 ity — Where plaintiff had in the first instance 
 given the replevin bond in the form provided in 
 the statute and a new defendant had been substi- 
 tuted in the action as defendant in the place of 
 the original defendants tmder an interpleader 
 summons taken out by the latter. 
 
 Held, per Ritchie, J., at Chambers, that there 
 is no power to direct the plaintiff to furnish a 
 new bond or other security to the substituted 
 defendant. 
 
 Quaere, whether the bond afforded any secur- 
 ity to the substituted defendant. 
 
 McDonald v, Km-tosk, March 4th, 1S90. 
 
 Unreported. 
 
758 
 
 IN'^ERROGATORIES. 
 
 754 
 
 4. Mortgagee-CoTensnt by mortgagor to 
 
 insure for benefit of,— Mortgagor insures on 
 bis own account— Action brought by mort- 
 gagor for insurance— Right of mortgagee to 
 interplead — PlaintifiF mortgaged certain pro- 
 perty to C. for $434.{X), and covenanted in the 
 mortgage to keep it insured for S.'HM) in the 
 name and for the benefit of the mortgagee. 
 8ul)8e(iuently plaintiflF effected insurance to the 
 amount of $'uO on his own account, without 
 reference to the mortgagee, 3!180 of whicli was on 
 personal property, not covered by the mort- 
 gage. After loss by fire, the mortgagee, finding 
 that the insurance was not in his name, de- 
 manded an assignment of the policy, ofTering to 
 secure to plaintiff the amount due him, and 
 upon Ills refusal, claimed the amount from the 
 company. Defendants paid the 81 SO, and upon 
 action brought for the balance, an interpleader 
 order waf. made. 
 
 //(/(/, that the insurance inured to the benefit 
 (if tiie mortgagee, and that he was entitled to 
 interplead, although the claim of the mortgagee 
 was an equitable claim, and the company was 
 under a contractual obligation to the plaintiff, 
 and altliough the claim of the mortgagee was 
 smaller than the amount insured. 
 
 McKmzie v. yElna Iiimimnce Co., 
 
 R. E. D., 346. 
 
 3. Requisites of affidavits for, as to col- 
 lusion—Parties out of jurisdiction — Orders 
 wee granted by a County Court Judge to allow 
 two parties to interplead in an action of reple- 
 vin. The affidavit of the defendant set out that 
 he did not collude with the plaintiff, but not 
 lliat he did not collude with the parties sought 
 to be brought in as defendants. 
 
 Held, a fatjil objection. 
 
 Hdd, further, that the affidavits were defec- 
 tive in not showing that the defendant " claimed 
 no interest in the subject matter other than for 
 charges or costs," (5th R. S., c. 104, O., Ivi., 
 R. '2), and that so far from showing a prima facie 
 right in the parties sought to be brought in they 
 negatived such right. 
 
 Quaere, whether the orders coidd be upheld 
 where the parties sought to be brought in were 
 out of the jurisdiction. 
 
 McDonald v. McKenzie, 20 N. S. R., 
 (8 R. &G.), 527. 
 
 INTEBR06AT0RIE8. 
 
 t. Action for account- Order to ftirther 
 
 answer interrogatoriea — Facts material to 
 plaintiffs' case— Disoretion of Judge- In an 
 
 action for an account in relation to partnership 
 dealings between plaintiffs and defendant, re- 
 specting the purchase and sale of a mine, and 
 for payment of plaintiffs' share which was 
 alleged to have been improperly received and 
 retained by defendant, plaintiffs after the com- 
 mencement of the action, obtained an order 
 recpiiring defendant to answer certain interroga- 
 tories. Afier receiving defendant's answer, a 
 further order was obtained from a Judge at 
 Chambers, requiring defendant to attend before 
 a Master for further examination as to matter 
 contained in certain of the interrogatories. 
 
 Defendant appealed, on the ground that he 
 was not obliged to answer »mtil plaintiffs had 
 first established their interest. 
 
 It appearing that the facts sought to lie elicited 
 by the interrogatories, were essential to the 
 plaintiffs' case. 
 
 Held, that there was no ground for interfering 
 with the discretion of the Judge below, and that 
 the defendant must answer as required. 
 
 Jenkins et al. v. Tupper, 7 R. & O., 506 ; 
 8 C. L. T., 62. 
 
 2. Foreign Companies ordered to answer 
 
 — The Court will order a defendant corporation 
 doing business in Nova 'jcotia, though incor- 
 porated abroad, to answer interrogatories, under 
 4th R. S., c. 96. 
 
 The officers of such company can be interroga- 
 ted, though not mentioned by name in the com- 
 mission to interrogate. 
 
 Hart et al. v. Western Union Tel. Co., 
 
 2R. &C.,535. 
 
 3. Order for delivery of, Ac— An order 
 
 was made by a Judge at Chambers giving defen- 
 dant leave to deliver interrogatories to a number 
 of officials of the plaintiff bank and refjuiring 
 such officials to make discovery on oath of certain 
 documents, correspondence, &c. At the time 
 the order was granted no defence to the action 
 had l>een delivered. 
 
 Held, that under O. xxxi, R. 1, the Judge had 
 a discretionary power to make such order before 
 the delivery of the defence. 
 
 Aho, that the objection to the order on the 
 ground that it ordered discovery and inspection 
 as well as the! delivery of interrogatories, could 
 not be sustained. 
 
 The Commercial Bank of Windsor v. Beckwith, 
 7R. &G.,527; 8C. L. T., 60. 
 
 4. Practice on taking rule tor - In taking 
 
 out a rule for interrogatories, a rule nisi should 
 be taken and not a rule absolute in the first 
 instance. 
 
 Ckambera v. HwUer, 2 N. S. D., 144. 
 
755 
 
 INTOXICATING LIQUORS. 
 
 756 
 
 INTE8TATE- 
 See EIE€VTOBS AND ADMINI8TBATOR8. 
 
 INTOUCATING LIQUORS. 
 
 1. Charges for, in aceonnt-In an action 
 
 •on tlic coniinon counts, the County Court Judge 
 non-suited the plaintiff on the ground that items 
 for intoxicating liquors in quantities of less than 
 one gallon were in plaintiff's claim though not 
 included in the account sued on. Plaintiff on 
 the appeal claimed that he should have judg- 
 ment, having proved his particulars at the trial, 
 but the Court refused it and granted simply the 
 usual order allowing the appeal. 
 
 McOowan v. HoUkn, 3 R. & G., 266. 
 
 2. Druggist license— Right to sell, under— 
 
 Defendant was convicted before the Stipendiary 
 Magistrate for the police division of Yarmouth, 
 «f selling intoxicating liquors without license, and 
 .appealed to the County Court, contending t liat the 
 Stipendiary Magistrate had no jurisdiction, as the 
 Act for appointing Stipendiary Magistrates, and 
 thus creating a court, was xdtra vires ; iliat there 
 had been no statement of claim filed l)efore the 
 issue of the writ, as provided by 4th R. S., cap. 91, 
 sec. 3, and that he was justified in selling liquors 
 to be used medicinally by virtue of his l>eiug a 
 licensed druggist, although no appointment had 
 been made by the Sessions under 4th R. S., cap. 
 75, sec. 41 . The sales were made by the defendant 
 and his clerk, indiscriminately, and without a 
 doctor's prescription. The judgment of the 
 County Court dismissing the appeal was affirmed 
 with costs. 
 
 Gardner v. Parr, 2 R. & C, 225 ; 
 1 C. L. T., 710. 
 
 3. Imprisonment under couTlction for 
 
 violating law relating to sale of,— By an Act 
 of the Provincial Legislature, a Town Court was 
 constituted for the incorporated Town of Truro, 
 to be presided over by the Recorder or Stipen- 
 diary Magistrate, the two offices being filled by 
 the same person. It was enacted that the Town 
 Court should have and possess all the powers in 
 civil matters within the municipality conferred 
 on one or more Justices of the Peace or Stipen- 
 diary or Police Magistrates by an Act of the 
 Province. The prisoner was convicted of a 
 violation of the license laws by selling intoxi- 
 cating liquors contrary to law, as for a third 
 offence, and while in jail was again convicted 
 of a fourth offence, the aunimons issuing out of 
 
 the Town Court, and the executions, in the 
 form 4th R. S., cap. 75, Schedule F, being signed 
 by the Stipendiary Magistrate as the officer 
 presiding in that Court. 
 
 On a motion for a hahe<M corpus, 
 
 Held, that the matter came within the juris- 
 diction of the Town Court as above defined, 
 and that the imprisonment was lawful, although 
 the execution specified no definite period. 
 
 Weatherl)e, J., dinHenting. 
 
 In re Simon Franer, 1 R. & G., ,^54. 
 ^ee HABEAS CORPUS, 3. 
 
 4. Petition for license— New petition re< 
 
 quired each year — The Court of Sessions for tlie 
 County of Halifax granted a license for the sale of 
 intoxicating liciuors to \V. for the year 1875, on 
 tlie recommendation of the grand jury and on a 
 petition of two thirds of the rate-payers, whicli 
 had been presented and used as the basis of a 
 similar license in 1874. 
 
 Held, tliat under c. 75, s. 3, 4th Rev. Stata. , 
 the petition for 1874 was not sufficient, but thac 
 a new petition should have been presented to 
 support the new license, and that the proceedings 
 of the Court of .Sessions in granting the license 
 must be quashed. 
 
 In re Liquor License, County of Halifax, 
 
 1 R. & C, 257. 
 
 5. Practice on conviction for selling— 
 
 W here a summons for selling liquor contrary to 
 law was issued by two Justices of the Peace, 
 and the cause tried before one of them and a 
 Justice who had signed the summons, 
 
 Held, that the conviction must be set a^side. 
 Weeks v. Bonham, 2 R. & C, 377. 
 
 6. Subsequent offence— Meaning of, in 4th 
 
 R. S., C. 75, 8. 6 — The words, " every subsequent 
 offence " in 4th R. S. , chapter 75, section 6, and 
 " subsequent offences " in 39 Victoria, c. 1, s. 7, 
 means offences committed subsequently to the 
 last previous conviction. 
 Wilkins, J., disnentin;/. 
 
 McOreijor v. McArcher, 2 R. & C, 362. 
 
 7. Proceedings before Justices of the 
 
 Peace for violation of laws relating to— 
 
 .S^ee JUSTICES OF PEACE. 
 
 8. Removal of convictions for violation 
 
 of laws relating to, by certiorari— 
 
 See CBRTIOBABI. 
 
 9. Yiolatlons of Canada Temperance Act- 
 
 See CANADA TEMPERANCE ACT. 
 
757 
 
 JOINT STOCK COMPANIES. 
 
 758 
 
 JOINDER- 
 See. PKACTICE. 
 
 JOINT SPECULATION. 
 Where a partf has been authorized to 
 
 enter into a apeculatiou on the joint account of 
 liiniself and others, and the negotiation has been 
 l)rokei> oflF, he cannot afterwards renew it on 
 his own account, and purcliase for his own bone- 
 Jit, witho^it first notifying the other parties, so 
 as to give them an opportunity of uniting with 
 liim in the purchase, if so disposed. 
 
 Allan et al. v. Mcffefey, 1 Old., 120. 
 
 JOINT STOCK COMPANIES. 
 
 1. Bankruptcy and insolvency — Act of 
 
 Local Legislature to wind-up companies— Con- 
 iributoriea — Proceedings were taken under an 
 Act of the Provincial Legislature (Acts 1S79, c. 
 52), to wind up the company on the ground 
 that it was heavily embarrassed and could not 
 extricate itself without having recourse to the 
 duulile liability of the shareholders. The Act of 
 incorijoration provided tliat transfers of shares 
 should be valid and effectual for all purposes 
 from the time they were made and entered in 
 the books of the conii>any. Three of the share- 
 holders claimed that they were not contribu- 
 tories on the ground that certificates of stock 
 were never accepted by them, but it appeared 
 that tlie certificates were issued to them by di- 
 rection of the former shareholder froii| whom 
 they were transferred ; that this was approved 
 of by the directors, and the certificates were 
 handed to the transferor, and afterwards received 
 by two of the tra,nsferees, who were registered 
 as stockholders in the company's books and 
 never repudiated the transaction. The third 
 transferee waa also registered, and was elected a 
 ■director previous to his repudiating the transac- 
 tion, which he did not do until after it became 
 apparent that the affairs of the company were 
 embarrassed. Another class of stockholders 
 claimed to be exempt on the ground that they 
 had surrendered their shares to the company. 
 Tiiis surrender had been made and accepted by 
 the company, but the parties surrendering knew 
 that the afifairs of the company were embar- 
 rassed, and it was with a view of escaping lia- 
 bility that the surrender were made. 
 
 Held, that the provisions of the Act were 
 within the legislative authority of the Provincial 
 
 Legislature, and that neither class of stockhold- 
 ers could be exempted from contribution. 
 
 Held, alio, that where there was no registra- 
 
 ation on the Iwoks, and the pivrty sought to l)e 
 
 made liable had never deemed himself absolute 
 
 owner, nor acted as such, there was no liability. 
 
 In re The Wallace Huestui Grey Stone Co. , 
 
 R. K. D.,481 ; .3 Cart. , .374. 
 
 2. Club-Hallflix Tacht Club-WIndlns-up 
 
 Act does not apply to— The petitioner, as ad- 
 ministratrix, recovered judgment against the 
 Halifax Yacht Club, and issued execution, which 
 was returned unsatisfied, there being no assets. 
 She then resorted to the individual liability of 
 the corporators, under 4th R. S. , o. .'S.S, s. 1 3, but 
 the Supreme Court decided that the section did 
 not apply to such a corporation. Petitioner 
 then applied to have the afifairs of the company 
 wound up. 
 
 Held, that the Provincial Act in reference to 
 winding-up of companies, dififering from the 
 English Act in that it was expressly made ap- 
 plicable to clubs, could be invoked for the pur- 
 pose of winding up the Halifax Yacht Club, but 
 that, as there was no individual liability, and it 
 was admitted there were no assets, the prayer 
 of the petition should not be granted, as it 
 would only create needless litigation. 
 
 In re The Halifax Yacht Club, R. E. I)., 47.5. 
 
 3. Costs— Security for— Defendant com- 
 
 pany incorporated in Province, but registered 
 in England— Security for costs ordered where 
 the insolvent plaintiff company, though incor- 
 porated in the Province, was registered in 
 England, and had its directory and place of 
 business there, and the parties using the name 
 of the company in the suit were not in the 
 Province. 
 
 Cape Breton Co. (Limited) v. Dodd et al., 
 
 R. E. D., .326. 
 
 4. Distinction between membership In, 
 
 and part ownership of corporation property— 
 Plaintiff, in 1874, agreed with a number of 
 Halifax merchants to subscribe ?4000 towards 
 a steamship enterprise, and assist in getting a 
 suitable ship, provided he should be master. 
 He was appointed master, and the wages were 
 fixed at $1200. The company was incorporated 
 in 1875, by Act of the Dominion Parliament, 
 and the plaintiflF received stock to the amount 
 of his contribution. After running for some 
 time, it was found that the enterprise was sink- 
 ing money rapidly, and in 1876 a new arrange- 
 ment was entered into, by which the plaintiff 
 was to supply the ship with men, and provisions 
 for the passengers and crew, and sail her as 
 
769 
 
 JOINT STOCK COMPANIES. 
 
 760 
 
 commander, for $900 ii month, afterwards in- 
 creased to 8950. The ship had been originally 
 accustomed to remain at St. Pierre, forty-eight 
 hours, but the time was afterwards lengthened 
 to sixty hours by the company, yet the plaintiff 
 insisted on remaining only forty-eight hours, 
 against the express directions of the company's 
 agents at St. Pierre, and was otherwise dis- 
 obedient to the agents, and treated them with 
 gross insolence, in consequence of which he was 
 dismissed from the service of the company. 
 
 There was a verdict of $2000 for plaintiff. 
 
 Held, that tlie dismissal was justifiable ; that 
 the plaintiff was not a part owner of the ship, 
 and could not exercise, independently of the 
 corporation, any power whatever over the prop- 
 erty of the company, having no interest what- 
 ever in the ship, but only in the stock of the 
 company, and the case must therefore be con- 
 sidered as the ordinary case of a master dis- 
 missed by the owners. 
 
 Sir W. Young, C. J., diHHentimj, held, that 
 while the plaintiff would have had no redress 
 had he been in the ordinary position of a ship- 
 master dismissed by a majority of the owners, 
 his position was that of a part owner, and he 
 was entitled to compensation. 
 
 Guildford v. AiKjlo- French Steamnhip Co., 
 
 2R. &,(i., 54; 
 1 C. L. T., 554. 
 
 On appeal to the Supreme Court of Canada, 
 
 Hdd, 1st, that even if the dismissal had been 
 wrongful, the damages were excessive, and the 
 case should go back for a new trial on this 
 ground. 2nd, Per Ritchie, C. J., and Fournier 
 and Gwynne, JJ., that the fact of the master 
 being a shareholder in the corporation owning 
 the vessel, had no bearing on the case, and that 
 it was proper to grant a new trial to have the 
 question, as to whether the plaintiff so acted as 
 to justify his dismissal by the owners, submitted 
 to a jury, or a Judge, if the case be tried 
 without a jury. 
 
 Guildford v. Awjlo- French S. S., Co., 
 9S. C. R.,303; 
 2C. L. T.,260. 
 
 5. Mortgage of property of, by direc- 
 tors — Practice on making calls — The direc- 
 tors of a company incorporated under Acts of 
 1852, Chapter 2 (Rev. Stats., .Srd series, 750), 
 intituled " An Act for the incorporation and 
 winding-up of joint stock companies," have 
 power to mortgage the property of the company 
 to discharge obligations for which the sharehold- 
 ers are liable, and would continue liable in their 
 own persons, if there were no mortgage. The 
 power to borrow money impUes the power to 
 
 mortgage. In making calls upon contributoriva, 
 summonses will be granted by a Judge to the 
 several parties recjuiring the amounts for wliich 
 they are liable to be paid within a specified time 
 without costs unless resisted. 
 In re Xaith Brick A Pottery Manufacturimj Co., 
 
 3N. S. l).,2o4. 
 
 6. Sale by corporation— Neceuity of seal- 
 See CORPORATION, 17. 
 
 7. Serrlce on company out ofProTlnce- 
 
 Necessity of seal — Plaintiff entered on the 
 record a suggestion that the Canada Imj)rove- 
 ment Company, one of the defendants, was 
 absent out of the Province when the writ of 
 summons was issued, and on that account could 
 not be served with process. The suggestion was 
 not traversed and it was contended by defcn- 
 dants that it had not been proved at the trial, 
 and therefore, that plaintiff should have become 
 non-suit under 4th R. S., c. 94 s. 347 and ;{')0, 
 and, further tliat tlie defendant could have l)een 
 served under section 41 of the Canada Joiut 
 Stock Companies Clauses Act of 1869 (Acts 1869 
 c. 12, Dom.) made applicable to this company by 
 Acts of 1872 c. 119 s. 9. 
 
 Held, that the suggestion, if the trutii of it 
 was denied, should have been traversed by defen- 
 dants, and that the section of the Canada Joint 
 Stock Companies Clauses Act, referred to, did 
 not enable service to be made by any other than 
 the accustomed officer, nor beyond the jurisdic- 
 tion of the Court. 
 
 Defendants pleaded to certain agreements al- 
 leged to have been made by them imder seal, 
 that the alleged deeds were not their deeds, and 
 that they did not undertake and proiiiise, as 
 alleged. 
 
 Held, that under 4th R. S., c. 94, s. 152, an ob- 
 jection could not, under these pleas, be takci to 
 the authenticity of the seals affixed to the agree- 
 ment as the seals of the defendant companies. 
 
 Semhle, that under the Joint Stock Companies 
 Clauses Act, sec. 31, made applicable, as afore- 
 said, to the Canada Improvement Company, and 
 4th R. S., c. 53, 8. 15, which was applicable to 
 the Halifax and Cape Breton Railway and Coal 
 Company, another defendant, the contract sued 
 on would be valid and enforceable without seals. 
 Oreij&ry v. The Halifax and Cape Breton 
 Railway and Coal Co. et(d., 4 R. & G., 4.?6. 
 
 A£Bnned on appeal to the Supreme Court of 
 Canada, 16th February, 1885, Cas. Digest, 434. 
 
 Leave to appeal to the Judicial Committee of 
 the Privy Council refused April 3rd, 1886. 
 
761 
 
 JUDGE. 
 
 762 
 
 8. SDltsagalnRt-and B. 8., c. 184, Part 
 
 II., H. 1— The proviBioiis of the Practice Ac,t 
 y/h'wU enable proooetlingH to be taken in the 
 Supruine Court against a defendant abroad after 
 aervicu, do not extend to suits against corpora- 
 tions. 
 Ihlloni V. Sydney and Louinhunj Railway Co., 
 
 '2 N. S. D., 73. 
 
 0. Salts against — Serrlce on agent — 
 
 Attachment against companies — Levy and 
 appraisement— Construction of 4th R. S., c. 
 97, 8. 26 -Cf. 5th R. S., c 104, O. 47, R. 1~ 
 When the appraisement shows that the apprais- 
 ers were sworn, and the Sheriff's return refers 
 to tlie appraisers' warrant, the swearing of the 
 appraisers sufficiently appears. 
 
 "Service on the agent of process to appear," 
 in sec. '26, cap. 97, R. S. (4tii series), means 
 service on the company's agent of process re- 
 quiring the company to appear. Levy under 
 the (ittachment under that chapter may Ije made 
 before service on tlie agent. The levy is eflfec- 
 tuiil from the time of seizure of the property, 
 and not merely after appraisement and selection 
 of the property to be held to respond the 
 judgment. 
 
 The Merchantx' Bank v. The Steel Company 
 of Canada (Limited), 5 R. & G., '258. 
 
 10. WIndlng-up Act— Winding-up order- 
 Jurisdiction over foreign companies — 45 Vic, 
 c. "2,3, D. — Requisites of order — Held by Smitli, 
 Wetttherbe. Rigby, and Thompson, JJ., that a 
 company, though incorporateil in Great Britain, 
 can be made the subject of a winding-up order 
 in the Supreme Court of Nova Scotia, under the 
 Winilingup Act of 1882 (Canada), when the 
 company is carrying on business in Nova Scotia, 
 Anil has its management here altogether or in 
 part. 
 
 Per McDonald, J. — The Court has jurisdic- 
 tion to make such an order when an Act of the 
 Provincial Legislature has conferred on the com- 
 pany tlie right to hold lands in Nova Scotia. 
 
 McDonald, C. J., dissentiny, on the ground 
 that the Winding-up Act does not and could 
 not confer jurisdiction over foreign companies. 
 
 ffeld, by McDonald, C. J., and McDonald, 
 Smith, and Weatherbe, JJ., that a winding-up 
 order must name the permanent liquidator, and 
 could therefore only be made after notice to 
 creditors, contributories, &c. 
 
 Rigby and Thompson, JJ., dissenting. 
 
 In re Steel Company of Canada (Limited), 
 
 5R. &G., 17&49. 
 
 On appeal to the Supreme Court of Canada, 
 
 ffeld, reversing the judgment of the Supreme 
 
 Court of Nova Scotia, Foumier, J., diHMenting, 
 that 45 Vic, c. 2.^, D. was not applicable to such 
 company. 
 
 The Merchants' Bank of Halifax v. Oillespie et al. , 
 
 10 S. C. R.,312; 
 BC. LT.,276. 
 
 11. Wlndlng>ap order set aside on technN 
 
 cal grounds— N«w order granted upon same 
 petition held good — An order was made for the 
 winding-up of the company, and, under that 
 order, a provisional liquidator was appointed. 
 The order was set aside, as notice had not been 
 given as required by statute. Notice was there- 
 upon given, and a new order taken, without 
 any further petition. 
 
 Held, that no new petition was necessary. 
 In re Steel ComfHtny of Canada (Limited), 
 
 5R. &G., 141. 
 
 12. WIndlng.np local company under 
 
 Dominion Act — The Eldorado Union Store 
 Company, incorporated by Act of the Legisla- 
 ture of Nova Scotia, cap. 31 of 1880, is a trading 
 company and as such n. vy be wound up under 
 the provisions of the Dominion Act, cap. 23, of 
 45 Vic, if insolvent. 
 
 In applying for a winding-up order it should 
 be shown in the petition that the company is 
 insolvent, the general statement " that the com- 
 pany is insolvent within the Act " not being 
 sufficient. 
 
 In re The Eldorado Union Store Co. , 
 
 6R. &G., 514; 6 C. L. T., 542. 
 
 JVD6E. 
 
 1. Charge of Judge to Jury in action for 
 
 malicious arrest— What sufficient— On the 
 trial of an action for malicious arrest the Judge 
 is not required, when the evidence touching the 
 facts upon which the question of reasonable 
 cause depends is contradictory to tell the jury 
 whether or not there was reasonable or probable 
 cause for the arrest, but directs them properly 
 in telling them that, if they find one way on the 
 evidence, there is reasonable cause, if they find 
 otherwise there is not. 
 
 Cox V. Gunn, 2 R. & C, 528. 
 See ABBB8T, HI, L 
 
 a. Disquallfleatlon of Bqnity Judge 
 
 through retainer when at the bar — Ritchve E. 
 J., when at the bar, had been professixnally 
 consulted in reference to the suit which was 
 afterwards instituted by bill in equity, and on 
 
763 
 
 JUDGMENT. 
 
 76* 
 
 that account had at tircit declined to act in the 
 matter, but had afterwards, to facilitate 
 mattem, undertaken to sign any merely jnro 
 forma orders in the cause, and had, with this 
 imdcrstunding, signed an order to appoint an 
 examiner to ttike evidence. On appeikl from this 
 order, 
 
 Held, that under 4th R. S., o. 05. ■. 6, which 
 
 went farther than the English rule, tiie Judge 
 
 was diB<iualitied and the order must be set aside. 
 
 Harris v. Wallaee, 3 R. & C, 326. 
 
 8. DUqaallflcatlon of Judge tbronxh re- 
 lationship — The fact that the insolvent was 
 second cousin of the Judge's wife, held not to 
 dis(iua\ify the Judge from dealing with the 
 matter of an application by the insolvent for 
 
 discharge. 
 
 In re Creujhton, 1 R. & G., 211. 
 
 4. Daty or, to report charge— New trial 
 
 granted where the Judge made no formal charge 
 to the jury, and no charge was reported on his 
 minutes. 
 
 Beales v. Canada and Fire Marine Ins. Co., 
 
 1 R. & G., 401. 
 
 5. Explanation of minutes by Judge given 
 
 to Court on argument — 
 
 Held, that the Court in banco could receive 
 the explanation of the Judge as to the nature of 
 the question to which a statement of defendant 
 on the minutes of evidence was an answer. 
 
 Royal Canadian Ins. Co. v. Smith, 
 5 R. & G., 322. 
 See INSURANCE, MARINE, 6. 
 
 6. Judge of Probate— limit of power as 
 
 to costs— Testator's will was attacked by the 
 trustees of the Methotlist Church, Guysboro' (to 
 whom the testator had left the bulk of his estate 
 by a previous will), on the ground that undue 
 and improper influences had been used. The 
 Judge of Probate decided that such influences 
 had not been made out with sufficient clearness 
 to avoid the will, and directed the costs of all 
 parties to be paid out of the estate. The decree 
 as to costs having been appealed from, the 
 Court held that the Judge of Probate had no 
 power to decree the payment of costs out of the 
 estate, and could only award them to be paid 
 by the party against whom his decision was 
 made, but that this Court, on review, could 
 direct what costs should be allowed, and from 
 what fund. The parties were accordingly direc- 
 ted to pay their own costs up to the time of the 
 decree, and the appeal was sustained, with costs 
 to be paid by the trustees. 
 
 In re Hefffman Estate, 3 R. & C, 486 ; 
 
 In re Estate of Simpson, 3 R. 8c, C, 357. 
 
 7t Judge of Probate — Power to order 
 
 exeontor to Include certain property in in- 
 ventory, but cannot require executor to attest 
 to inventory so amended — The Judge of Pro- 
 bate has the power after hearing evidence on the 
 facts, to order an executor or administrator to 
 include in the inventory, as property of the do- 
 ceased, articles claimed by other parties, but lie 
 cannot re(juire the executor or administrator to 
 swear to an inventory thus amended by order 
 of the Court. 
 
 In re Estate of Ralston, 2 Thom., 195. 
 
 8. Power of Judge at Chambers to tram- 
 
 mit cause to Judge in Equity of his own 
 motion — In an action by plaintiff against defen- 
 dants on a policy of insurance, a third party 
 claimed to be interested in the insurance, and for- 
 bade payment to plaintiff. Defendants obtained 
 a rule nisi for an interpleader, upon argument of 
 which before a Judge at Chambers, the Judge, 
 of his own motion, transmitted the cause to the 
 jurisdiction of the Judge in Equity, under 4th 
 R. S., 0. 89, s. 6. 
 
 Held, that the Judge had power so to trans- 
 mit the cause, although he was not moved to do 
 so by the counsel on either side, and there was 
 no plea on equitable grounds. 
 
 McKemie v. jEtiia Ins. Co., 2 R. & G., 326. 
 
 2 C. L. T., 94. 
 
 9. Power of, to order extra panel— 
 
 10. Rule as to one Judge rescinding order 
 
 made by another — To what cases not applic- 
 able — The rule against one Judge rescinding an 
 order made by another Judge does not apply to 
 orders which are made absolute in the first 
 instance. 
 
 Chambers v. Hunter, 2 N. S. D., 144, 
 
 JUDGMENT. 
 
 1. Action tor penalty — Proof of oflTence 
 
 necessary even where defendant makes de- 
 fault — Plaintiff, an inspector of River Fisheries,, 
 brought an action for a penalty against defend- 
 ant, and the latter not appearing, entered up 
 judgment against him for $40, the full amount 
 of the penalty prescribed for the offence. 
 
 Held, that before doing so, the plaintiff should 
 have given some proof before a Judge of the 
 Court, who would then decide, and direct what 
 penalty should be imposed. 
 
 Jdason V. Mahar, 1 N. S. D., 314. 
 
765 
 
 JUDGMENT. 
 
 766 
 
 i. Action to reflTO Jadgnent— Matter of 
 
 defence anterior to the judgment cannot be 
 pleaded— "Special tiea" does not include "judg- 
 ment" in 3rd R. S., c. 190, ■■ 16— Matter of de- 
 fence cannot be pleaded to an action to revive a 
 judgment which existed anterior to the recovery 
 of the judgment. If a judgment be orroneous, 
 that circumntance will afford no answer to an 
 action of debt upon it. The only course for the 
 defendant is to reverse it by writ of error. 
 
 The word "specialties" in .3rd R. S. c. 190. 
 8. 16, does not include " judgment." 
 
 Lawrence v. McDonald, 1 N. S. D., 413. 
 
 3. Action on Jodgment— Hnaband of 
 
 wife against whom judgment before her mar- 
 riage—Like other defendants cannot plead 
 matter of defence to original action — To an 
 nctiun on a judgment the defendant cannot plead 
 any fact which might have been pleaded as an an- 
 swer to the original action. Where a party has 
 obtained a judgment against another, he may 
 proceed upon it at common law, and is not com- 
 pelled to proceed by writ of revivor. The 
 husband of one of several parties against whom 
 a judgment has been formally obtained, stands 
 in no better position than the other defendants, 
 and cannot plead matter of defence to the judg- 
 ment that was available in the original action. 
 Benjamin v. Campbell et al., 2 N. S. D., 320. 
 
 4. Award— Amount below $20— No Juris* 
 
 diction in Supreme Court to order judgment 
 entered— Submission "that judgment should be 
 entered thereon with cost for the party in whose 
 favor the award should be made." Award 
 (made a rule of Court under 4th R. S., c. 109), 
 contained the following findings : — 
 
 " 1. That it was not justifiable for Watson 
 Eaton to advertise doing business in the Colonial 
 Market. 
 
 "2. That Stewart's rent should be increased 
 one hundred dollars per annum. 
 
 " 3. That Stewart should deliver up to Eaton 
 any of Eaton's guarantees then held by Stewart. 
 
 "4. That the debts due and owing the late 
 firm of Stewart & Eaton, amounting to 189.94, 
 be collected by Eaton and retained by him for 
 his own use. 
 
 "5. That the balance due and owing by 
 Stewart to Eaton amounts to $16.76, which 
 Stewart is to pay to Eaton at once. 
 
 "6. That the expenses in connection with 
 the arbitration and law expenses should be borne 
 equally by Stewart and Eaton." 
 
 Held, that the Court could not enter judgment, 
 as the only amount directly awarded in money 
 to be recovered by Eaton from Stewart was 
 
 116.76, whi?h being under 920, was below the 
 jurisdiction of the Court. 
 
 In re H^erence Itehceen Eaton and Slewarly 
 
 2R. &C.,.392. 
 
 5. Certlflcate of— Recording- The record* 
 
 ing of a certificate of judgment gives the judg- 
 ment creditor such a lien upon the land of the 
 debtor as to enable him without having issued 
 an execution to proceed in chancery to set aside 
 a prior fraudulent conveyance of the land. 
 Caldwell et al. v. Kinnman et al. , 
 
 James, ,398. 
 
 6. Default- Affldarlt to set aside — By 
 
 whom to be made and what to contain— An 
 affidavit to set aside a regular judgment by de- 
 fault must, in general, be made by the defend- 
 ant himself, and not by his attorney. The de- 
 fendant in such a case must swear to a personal 
 knowledge of the facts, and not merely to hia 
 belief. 
 
 Malone v. Dwj<jan, 1 Old., 697. 
 
 7. Deflinlt — Amending rule to set aside 
 
 on appeal — Terms — On appeal from the judg- 
 ment of the County Court, refusing to set asidt 
 a default where the writ had not been personally 
 served, the Court, under Rule 14, Order 28, 
 amended the rule nisi in the court below, by 
 adding a ground setting out that the defendant 
 had a defence on the merits, and had satisfac- 
 torily accounted for his non-appearance, and 
 made absolute the rule on terms of a bond being 
 given to the County Court Judge to respond 
 final judgment, defendant to pay costs of argu- 
 ment and appeal, otherwise appeal to be dis- 
 missed. 
 
 Hayden v. McNiUt, 5 R. & G., 541. 
 
 8. Definlt— Judgment by, opened up and 
 
 defendant allowed to come in and defend — 
 Amendment — After the issue of the writ in the 
 cause defendant's solicitor demanded a state- 
 ment of claim, and agreed that plaintiff's 
 solicitor should have time beyond that allowed 
 by law to put it in, on condition that the defen> 
 dant should have further time to plead. The 
 statement of claim was filed on the 14th October, 
 1887, and defendant's solicitor was requested to 
 deliver his defence not later than the 29th 
 October. In consequence of illness he was 
 prevented from doing so until November 3rd. 
 A judgment by default having been entered the 
 previous day, application was made to the Judge 
 of the County Court, for the district in which 
 the writ was issued, to set the judgment aside 
 for irregularity. 
 Held, that the application was wrongly made, 
 
767 
 
 JUDGMENT. 
 
 768 
 
 there being no irregularity apparent on the 
 record. That the proper course under the cir- 
 cumstances would have been to apply to the 
 Judge, on aiiidavit, to open up the judgment, 
 and to allow the defendant to come in and 
 defend under Order 27, Rule 14. That the 
 Judge would have been justified in allowing an 
 amendment for that purpose if moved so to do. 
 That under Order 28, Rule 12, the defendant 
 might now be allowed to amend if he saw fit and 
 that, after such amendment, the judgment should 
 be opened up, and the defendant allowed to come 
 in and defend. 
 
 Devine v. McKenzie, 20 N. 8. R., 
 
 (8R. &G.), 417; 
 9C. L. T., 119. 
 
 9. Defbult— Judgment by — Opened up 
 
 where failure to appear accounted for — A 
 judgment by default was entered against defen- 
 dants in an action to set aside as fraudulent a 
 deed made by McD., one of the defendants, to 
 his co-defendant, O'B. The latter obtained an 
 order allowing him to come in and defend after 
 judgment, on an affidavit accounting for his 
 failure to appear previously, and alleging that 
 the purchase was made bona fide, and without 
 fraudulent intent. Plaintiff having appealed 
 from the order so granted. 
 
 Held, that the appeal must be dismissed. 
 
 McDonald v. McDonald et al., 7 R. & G., 22 ; 
 
 7 C. L. T., 51. 
 
 10. Defiiult — Judgment by, set aside — 
 
 Plaintiff, on the 25th of August, 1885, obtained 
 judgment by default against the defendant com- 
 pany, a company incorporated in the State of 
 Massachusetts, owning a gold mining property 
 at Isaac's Harbor, in the I'rovince of Nova 
 Scotia, the writ of summons having been served 
 upon S. as agent of the company. On the same 
 day an execution was issued, a writ of attach- 
 ment and summons to agent having been issued 
 on the 7th August preceding. The defendant 
 company applied on affidavit to set aside the 
 judgment and execution, and for leave to appear 
 and plead, on the ground that S. had acted in 
 collusion with the plaintiff for the purpose of 
 obtaining the judgment ; that the amount for 
 which judgment was entered was not due ; that 
 S. never instructed or informed the executive 
 or managing officers of the company that the 
 writ of summons had been issued, or that he 
 had been served with any process in the suit, 
 and the company had been kept in ignorance of 
 the proceedings taken against it. The defend- 
 ant further denied the right of S. to sign certain 
 promissory notes, which formed part of the 
 
 alleged cause of action. An order having been 
 made by the learned Chief Justice at Chambers 
 setting aside the default and allowing the de- 
 fendant to appear and plead, 
 
 Held, the affidavits being lengthy and contra- 
 dictory, and the Court being of opinion that 
 justice could be more effectually done between 
 the parties after a trial, that the order must be 
 affirmed and the appeal therefrom dismissed. 
 Reynolds v. Gallihar Gold Mining Oo., 
 
 7R. &G.,466; 
 8 C. L. T., 17. 
 
 11. DefiAult marked too soon— Not a nullity 
 
 — Judgment entered on fourteenth day prem. 
 ature — Where the plaintiff marked a default on 
 the twelfth day after the service of a writ, with 
 the particulars indorsed thereon, and entered up 
 judgment on the fourteenth day thereafter. 
 
 Held, that the default was not a nullity, and 
 even if it were, the plaintiff was not entitled to 
 sign judgment on the fourteenth day. 
 
 Masters v. Phinney, 2 Thom., 429. 
 
 Vi. Default of pleading— A pleading must 
 
 be served as well as filed before the Prothono- 
 
 tarj' is instructed to mark a default for want of 
 
 service. 
 
 Johnston V. Matheson, James, 92. 
 
 13. Defiiult, removal of— Discretion-Blglit 
 
 to reply to affidavit to set aside — Defendant, 
 against whom judgment by default had been 
 regularly entered up, applied within a year to 
 have the judgment set aside, and to be allowed 
 to come in and defend, disclosing a defence on 
 the merits. Plaintiff was allowed to controvert 
 the meritoriousness of this application, but tlie 
 Judge decided to grant it on terms. 
 
 Held, that having so exercised his discretion, 
 the Judge's decision would not be interfered 
 with. 
 
 Semble, it is not a matter of right for plaintiff 
 to reply by affidavit in applications of this kind, 
 and where he is permitted to do so, he should 
 confine himself to the establishing of such other 
 facts, exclusive of merits, as might he consid- 
 ered sufficient to defeat the application, 
 
 Woodworth v. Cutten, 3 N. S. D., 394. 
 
 14. Default set aside— Mistake— Jndg' 
 
 ment by default was set aside in an ejectment suit 
 where the affidavits disclosed a defence on the 
 merits without alleging in terms that the defen- 
 dant had a defence on the merits, and the want of 
 a plea was accounted for by defendant's attor- 
 ney swearing th^t in consequence of an appeal 
 from an order for security for costs in the cause 
 
7G9 
 
 JUDGMENT. 
 
 770 
 
 and of several [lapers in tlie cause being served 
 on his counsel in Halifax, he was misled as to 
 the position in which the cause stood, and was 
 not aware that the suit was in a position in 
 wliich judgment could be marked, until a levy 
 was made on defendant's property. PlaintifT's 
 attorney, in reply, swore that tlie rule absolute 
 setting aside the order for security had been for- 
 warded for service on defendant's attorney and 
 tluU for this and other reasons, which he 
 detailed, the statement of the attorney as to his 
 liaviiig been misled could not be true. 
 
 Hfid, Weatherbe, J., doubtiiuj, that the 
 a])peal from the judgment setting aside the 
 default must be dismissed. 
 
 De Wolfe v. Holme», .3 R. & G., 4 ; 
 2C. L. T.,600. 
 
 15. Default set aside— Where marked In 
 
 consequence of misapprehension of defendant's 
 attorney— Laches — A judgment by default will 
 be set aside as a matter of course and the defen- 
 dant lulniitted to plead where tlie default has 
 licen marked in consecjuence of a misapprehension 
 on tlie part of the defendant's attorney unless 
 tliere has been unreasonable delay in making the 
 ajiplieation. 
 
 Cook V. Sumner ct al., .3 N. S. D., 536. 
 
 16. Default— Setting aside -In an action 
 
 on i\rfrtiofari boiul, under chap. 7r),4tliRevised 
 Statutes, "Of Licenses," Schedule K, the defen- 
 dant olilaiiied an order nisi for the indorsation 
 on the writ of the name of a person to be liable for 
 costs, under the practice established by Queen v. 
 McKarrher, 3 R. & C, 337. Before the rule 
 was made absolute, the plaintiff indorsed the 
 name of the Clerk of License, and gave the de- 
 fendant notice. A rule was afterwards obtained 
 making the rule ?((.■••{ absolute and giving defen- 
 dant ten days to plead. Plaintiff, after the rule 
 was made absolute, indorsed the name of the 
 Cleik of License a second time, but did not give 
 the defendant notice of the second uidorsation, 
 and, after the expiration of ten days, marked a 
 tlefault foi- want of a plea. 
 
 Iltld, that the default had been regularly 
 marked. 
 
 ',"""•', as 10 tiic j>ractice establislied by the 
 Qu'iii V. McKardier. 
 
 Queen v. Carter, 1 R. Si (i., 307, 
 
 U. Estoppel by — identity of issues — 
 
 I'laintitr lirought acM'on for the non-delivery of 
 certain goods. Def^^ndant pleaded among other 
 pleas that plaiutill was estopped by a judgment 
 HI a former suit brought by the present defen- 
 dant against the now plaintiff for the price of 
 tlie goods, to vhich action it was pleaded that 
 
 25 
 
 the goods had not been delivered, which issue 
 was found against the present plaintiff. Repli- 
 cation, among others, on equitable grounds, in 
 effect that the judgment pleaded had been 
 recovered without plaintiff having had an oppor- 
 tunity, owing to unforseen circumstances, of 
 substantiating his plea by testimony. The 
 identity of the issues raised in the two suits was 
 clearly established, and a verdict having been 
 found for plaintiff". 
 
 Held, that the doctrine of estoppel applied, 
 that the equitable replication, not setting out 
 the circumstances referred to, was insuthcient 
 and that tlie verdict must be set aside. 
 
 Marmnud v. McC ready, 3 R. & C., 66. 
 
 18. Execution— Application to set aside, 
 
 on ground that judgment entered in breach of 
 settlement — Judgment was taken for plaintiff 
 in .lanuarj", 1874, on a promissory note of de- 
 fendants to one Steadman, indorsed to plaintiff, 
 who issued an execution, and afterwards iissigned 
 the judgment to Steadman, by whom a second 
 execution was Lssued. Defendants sought to 
 have this execution set aside, on the ground 
 that the judgment had been taken in violation 
 of a settlement with Steadman, who liad agreed 
 to accept, and had received a mortgage in full 
 payment. The evidence was conflicting, and the 
 Court, holding that there was no foundation for 
 the doctrine of Merger, whicli had been sug- 
 gested, discharged the rule nisi with costs. 
 
 Mf Donald v. Mitchell cl al., 3 R. & C, 274. 
 
 19. Foreignjudgment— Action on -Change 
 
 in currency — Departure — When an action is 
 
 I lirought on a foreign judgment, and the dcclara- 
 ! tion claims the eijuivalent in Nova Scotia cur- 
 rency of the amount of the judgment, it is a 
 I departure to claim in an equitable replication an 
 I increased amount, on account of the depreciation 
 of the currency of the foreign country, ecjuiv- 
 alent to the change in the value of the currency 
 since the cause of action arose, 
 
 J}on<l it al. V. Ires, Admr., 2 Old., 1 07. 
 
 I 20. Injunction to stay sale until validity 
 
 of judgment settled— Judgment for specified 
 sum, when sum paid, cannot be made availa- 
 I ble for subsequent liabilities— Advertisement 
 I of sale under several judgments— Sanderson, 
 I one of tlie defendants, had lieen obtaining dis- 
 counts from the Hank of Nova Scotia on paper 
 indorsed by one or more persons, and the agent 
 of the Hank lieconiing dissatistied on account of 
 I the numerous renewals, and referring to the pos- 
 I sibility of the indorsers being called upon to 
 ! take up the notes, Sanderson, in iJuly, 1S.">!), 
 
771 
 
 JUDGMENT. 
 
 772 
 
 gave the Bank a judgment for the exact amount 
 then due on the notes. In September, 1860, the 
 plaintiffs recovered judgments against Sander- 
 son, and a number of otlier judgments were en- 
 tered up against him by parties who were made 
 defendants in the present suit. Sanderson 
 continued to get notes discounted until 1874 
 when his affairs became embarrassed, and the 
 Bank ceased to discount his paper. The notes 
 then at the Bank were taken up by the indors- 
 ers, and Sanderson ceased to be indebted to 
 the Btmk. In 1874, the parties who were in- 
 dorsers on Sanderson's paper discounted at the 
 Bank, took proceedings to revive the judgment, 
 and issued and delivered to the Sheriff an 
 execution, with instructions to levy on Sander- 
 son's real estate. 
 
 Hdd, that the judgment having been taken 
 for a speciied sum ascertained at the timj to be 
 due the Bank and which had bf en long since 
 paid, neither the Bank nor the indorsers of 
 Sanderson's paper could make it available for 
 any subse(iuent liabilities. Siniultaneously with 
 the issuing of the execution at the suit of the 
 Bank, the other defendants, whose judgments 
 were subsequent to those of the plaintiffs, had 
 executions placed in the Sheriff's hands by Mr. 
 Grantham, who was the attorney by whom all 
 the executions were issued, with instructions to 
 levy for the amount of them on Sanderson's real 
 estate, and the land was advertised by the Sheriff 
 as one sale, the advertisement being headed In 
 all the causes of the several defendants, including 
 the Bank. 
 
 Held, that under the circumstances, the sale 
 being under the direction of Grantham, the attor- 
 ney in all the causes, the plaintiffs were justified 
 in making the incumbrancers, subsequent to the 
 Bank, defendants in this suit ; otherwise, possi- 
 bly, if these subsequent incumbrancers had not 
 connected themselves witli the Bank, but had 
 advertised sales under their respective judg- 
 ments, subject to prior incumbrances. 
 
 Injunction to stay the sale until the validity, 
 or otherwise, of the judgment at the suit of the 
 Bank was settled, continued, but only on the 
 condition that the plaintiffs should give an 
 undertaking to bring on the case for trial at the 
 next term of the Supreme Court in the county, 
 or that their bill be dismissed. 
 
 Costs decreed against the Bank, but not as 
 against the other defendants. 
 
 Moody t( al. v. Bank of Xova Scodn et al., 
 
 R. E. D., 129. 
 
 21. Interest on Judgment— When claim 
 
 for ariseB — No claim for interest arises upon a 
 recorded judgment until lands are actually sold 
 
 under execution, and there is a surplus after 
 paying the debt and costs. 
 
 In instructing a sheriff to !evy an executiuu, 
 it is irregular to direct him to levy for interest 
 on the amount of judgment. 
 
 Fkiyer v. Taylor, James, 137. 
 
 22. Issning eiecation on Judgment more 
 
 than twenty years old — Old rule — To issue 
 an execution on a judgment more than twenty 
 years old, there must have been an execution 
 regularly issued and returned within a year. 
 
 White v. Dimock, 2 Thoni., •2.S4. 
 
 23. Judgment, application to set aside 
 
 refused — Contradictory evidence — Defendant 
 gave plaintiff a warrant of attorney to secure 
 the price of a lot of land. Plaintiff entered up 
 judgment and issued execution, which defendant 
 sought to have set aside on the ground that 
 there was an indorsation on the warrant giving 
 him ten years' time, which had not expired. 
 Plaintiff admitted the indorsation, but claimed 
 that it had at the time of its execution been, 
 erased with the consent of the defendant. De- 
 fendant alleged that the erasure was accidental, 
 and had occurred subsequently. The evidence 
 corroborated plaintiff's position. 
 
 Held, that the judgment should remain and 
 execution issue. 
 
 Morie v. Ripley, 3 N. S. 1)., 461. 
 
 24. Judgment binding on property ac> 
 
 quired subsequently to recording — Pluintiff 
 recorded a judgment against defendant and ij^sucd 
 execution which was returned unsatisfied. Subse- 
 quently certain real estate came into defendant's 
 possession by devise from his father. After the 
 expiration of a year plaintiff ha'i this real estate 
 levied upon and sold by the Sheriff, purchased 
 it himself and brought ejectn;<!nt against a 
 grantee of defendant's, who had the possession. 
 He was non-suited on the ground that the sale 
 had not been duly advertised. He then applied 
 for leave to set aside the levy and sale and to 
 proceed anew. Defendant resisted the applica- 
 tion on two grounds : Ist, that the judgment 
 did not bind the property because it had been 
 acquired subsecjuently to the recording ; and 
 2nd, that the full amount of the judgment debt 
 was not due. This latter ground was supported 
 by affidavit and uncontradicted. 
 
 //tld, that plaintiff's application should be 
 granted, but the matter was referred to a Master 
 to ascertain the actual amount due, plaintiff to 
 have liberty to issue new execution for the 
 amount if not paid. 
 
 Bent v. Banks, 2 N. S. D., 504. 
 
773 
 
 JUDGMENT. 
 
 774 
 
 25. Judgment by confession attacked as 
 
 made in contemplation of insolvency — Ap- 
 pointment of assignee — Invalidity of, how 
 attacked — PlaintiflF, as creditor's assignee, 
 siiught to set aside a judgment given hy con- 
 fession by two alleged co-partners, as made in 
 contemplation of insolvency. Defendant denied 
 that plaintiff was assignee, and it appeared tliat 
 at the meeting of creditors there was only one 
 ])ers(in who had tiled a claim, and his claim was 
 without a voucher, yet, instead of abandoning 
 the meeting as a failure and calling another, 
 giving due notice, the meeting adjourned to 
 anotlier day, on wliich the plaintiff was appointed 
 assignee. 
 
 Held, that the appointment was invalid, that 
 the proceedings could be impugned without 
 going into the Insolvency Court, and that tlie 
 defendant's denial that plaintiff was assignee as 
 alleged obliged him to prove it. 
 
 Bfuhir V. Gilliatt, .3 N. S. D., 5'25, and referred 
 to in 1 R (& C, 264, questioned. 
 
 Brown v. Peannan, R. E. D., 491. 
 
 26. Judgment by confession to indemnify 
 
 against future indorsements, which were after- 
 wards given — Not void as made in contem- 
 plation of insolvency — Plaintiff sought to set 
 aside a judgment entered on a confession as 
 made in contemplation of insolvency ; but the 
 judgment creditor alleged and it appeared in 
 evidence that the confession was taken only to 
 indenniify the judgment creditor against loss on 
 accommodation indorsements to be thereafter 
 given, which were given. 
 
 Held, that although the judgment debtor was 
 in insolvent circumstances at the time of giving 
 the confession, the judgment could not be im- 
 peached, section 89 of the Insolvent Act of 1875 
 referring only to securities given for pre-existing 
 debts or liabilities. 
 
 Kinney v. Rytr-son it al., R. E. D., 488. 
 
 27. Judgment creditor entitled to notice 
 
 on foreclosure of prior mortgage— Priority of 
 judgment over subsequent trust deed— Benja- 
 min, Freeman & Calder purchased certain lands, 
 subject to a subsisting mortgage, each of tliem 
 receiving a deed of one undivided third part. 
 They had formed a partnership for milling and 
 lumbering, and Calder borrowed $2,000 for the 
 purpose of erecting a mill, for which he gave a 
 confession of judgment to the plaintiff, which 
 was duly recorded. The partnership becoming 
 embarrassed, assigned all their property to Tay- 
 lor and others, as trustees, and afterwards ae- 
 Bigned, under the Insolvent Act of 1869, to 
 Taylor, who procured the mortgage to be fore- 
 closed and bought in the property, which he 
 
 ; afterwards sold to Benjamin. The plaintiif was 
 
 . not made defendant in the foreclosure suit, aud 
 
 I received no notice of the sale, although Taylor 
 
 was aware of the fact that the plaintiff held a 
 
 judgment, and that it was recorded in the county 
 
 where the land lay, and Benjamin, when he took 
 
 , the deed, was aware of the facts. 
 
 Htld, that plaintiff was entitled to a resale, 
 
 with notice, and that the plaintiff's lieu under 
 
 his judgment must have priority over the deed 
 
 ; in trust. 
 
 j KanlbacJ: v. Taylor tt al., R. E. D., 400. 
 
 28. Judgment for defendant for want of 
 
 prosecution where both parties refuse to be- 
 gin, reversed on appeal— In an action hy phiin- 
 tiffs against defendant, as surviving covenantor, 
 for rent due on a lease, defendant pleaded a plea 
 i which was a substantial admission of plaintiffs' 
 I case. At the trial, plaintiffs' counsel took the 
 ground that on the pleadings defendant should 
 liegin, and rested. Defendant's counsel r';fused 
 to go on, and moved for a non-suit. Plaintiffs' 
 counsel having refused to become non-suit, the 
 learned Judge reserved judgment, and subse- 
 quently gave judgment in favor of defendant, 
 for want of prosecution. 
 
 //eld, that the judgment could not be sus- 
 tained. 
 
 Vickery et al. v. Price, 7 R. & (i., 513; 
 8 0. L. T., 61. 
 
 '29. Judgment for plaintlflr, wbere plea 
 
 of discharge in insolvency, sustained, because 
 claim had not been properly scheduled — Judg- 
 ment for plaintiff sustained where defendant 
 pleaded a disciiarge in insolvency, and it ap- 
 peared that tlie note sued on, of which the present 
 plaintiff was indorsee, had been included in the 
 amount sclieduled as the claim of the original 
 payee, but no particulars of it were given as 
 provided by section 61 of the Insolvent Act of 
 1875. The plaintiff's name appeared in the 
 schedule but no amount was set opjwsite. 
 
 Be Wolf V. Ntilly, 1 R. & «., 243. 
 
 30. Judgment founded on inference of 
 
 fraud — The Court will review a judgment foun- 
 ded on an inference of fraud more freely than 
 where it is based on a conflict of testimony. 
 
 Brady v. Bell, 7 R. & G., 356 ; 
 7 C. L. T., 408. 
 
 St. Judgment on appeai fk'om Magistrates 
 
 — Evidence of— No record being filed in the Su- 
 preme Court, of judgments in causes appealed 
 from Magistrates' Courts, the termination of the 
 proceedings under which the arrest was made is 
 sufficiently proved, in support of an action for 
 
776 
 
 JUDGMENT. 
 
 776 
 
 malicioua arrest, by the testimony of a compe- 
 tent witness wlio heard the jiulgment on tlie 
 appeal prononneed in open Court hy the Judge. 
 Cox V. Gxinn, 2 R. & C, .728. 
 
 On a)i/tial to the Supreme Court oj Canada, 
 Held, reversing the judgment of tlie Court 
 beh>w, tiiat suuh evidence was iuaihnissilde, and 
 was not proper evidence of a final judgment of 
 the Supreme Court of Nova Scotia. 
 
 Gunn V. Cox, 3 S. C. R., 296. 
 
 32. Judgment on warrant of attorney 
 
 made by husband and wife — Judgment valid 
 till aet aside in court where given — When a 
 woman entitled to real estate joins with her 
 husband in executing a warrant of attorney on 
 which a judgment i.s entered and recorded, in 
 order to bind such real estate, the Court of 
 Probate is not justified in treating the judgment 
 as a nullity. 
 
 I\r Dodd, J. — The general principle is, that 
 judgments are valid until set aside in tlie Court 
 in wliicii they are given. 
 
 In re Estate, of Mary Kelson, 2 Tiiom., 1. 
 
 33. Judgment recorded binds lands sub- 
 sequently acquired — In 180" the Crown granted 
 to one Scott a lot of land, of which defendant 
 had been in adver-se posses.sion for ten years, 
 and in 1870 Scott convoyed .said land to defend- 
 ant by deed, which was duly recorded. In 
 May, 1857, plaintiff recovered judgment, which 
 was duly recorded, against Scott, under which 
 the land in dispute was sold and purchased by 
 plaintiH's at the Sheriff's sale. 
 
 Held, that the adver.se possession of defendant 
 did not prevent the Crown from granting the 
 land to Scott, as sucli possession, in order to 
 have such effect, must be dedned, actual and 
 continuous for twenty years ; and that although 
 Scott's deed to the defendant was duly recorded, 
 the land, although acquired after the judgment 
 recorded in 18,57, was bound by the judgment 
 the moment it was granted to Scott. 
 
 Louislmrg Land Co. v. Tutty, 4 R. & (J., 401. 
 
 34. Judgment recorded in lifetime of 
 
 deceased — Estate declared insolvent in Pro- 
 bate Court — Execution may issue and be 
 extended on land bound by it— Balance due 
 may be claimed out of personal assets —3rd 
 R. S., c. 127, s. 70— Cf. 5th R. S., c. 100, s. 72— 
 Where a judgment has been duly recorded in 
 the life time of a deceased party, and his estate 
 has been declared insolvent by the Probate 
 Court, an execution may, nevertheless, he issued 
 on such judgment, on a proper suggestion of 
 
 I facts on the record, against his executor or 
 administrator, but can be extended only on the 
 land bound by such judgment. 
 
 If any balance remain due to such judgment 
 creditor, after a sale of the land under such 
 execution, he is entitled to claim therefor out 
 of the personal assets of the deceased, under the 
 provisions of section 70 of the Probate Act, 
 (;frd Rev. Stats., c. 127). 
 
 (.Srd R. S., c. 127, s. 70, same as 5th R. S., 
 c. 100, s. 72.) 
 
 Jiurroires v. Isnor, I Old., 68t). 
 
 j 35. Judgment restored when discharged 
 
 I without consideration on false pretences— The 
 
 I Court will restore a judgment discharged with- 
 
 I out consideration upon false pretences of the 
 
 defendant, upon an affidavit, a balance Ijeing 
 
 [ due. 
 
 Poncia V. McDonnell, James, 5"). 
 
 ' 36. Judgment— Right of plaintiflTto, where 
 
 : action settled before delivery of decision in 
 
 his favor — Plaintiff recovered a verdict on a 
 
 ' l)(jlicy of insurance for S2(KK), subject to the 
 
 I opinion of the Court. After the argument of a 
 
 rule nisi and before judgment pronounced on the 
 
 rule the parties entered into negotiations for a 
 
 .settlement, the result of which was tiiat plaintiff 
 
 about a fortniglit l)efore tiie delivery of judg- 
 
 ' ment accepted §1000 in full of his claim and 
 
 I delivered up his policy to the company. Judg- 
 
 I ment was afterwards given in his favor for tlie 
 
 j full amount of the claim, and a rule nisi was 
 
 taken by defendants to compel the plaintiff to 
 
 file a discontinuance, .r in the alternative that 
 
 all proceedings under the judgment should be 
 
 stayed. The C'ourt refused to interfere with 
 
 I tlie plaintiff's common law right to enter judg- 
 
 I ment, but stayed execution for thirty ilays, that 
 
 I defendants might take such steps as they might 
 
 be ailvised. 
 
 Peppit v. North British Ins. Co., 1 R. & (;.,48U. 
 
 37. Judgment cdt aside for irreguiarlties 
 
 — In an action on a bond for §400, at tlie suit of 
 the Crown against the principal and one of the 
 sureties, the defendants pleaded more than one 
 plea without leave, and the plaintiff's attorney 
 treated the plea as a nullity, on the ground that 
 the Crown was not bound by section 178 of the 
 Practice Act (allowing a second or 8ul)so(iuent 
 plea), marked default, and without filing any 
 record, entere>' judgment without any assess- 
 ment of damaj^es, upon which execution was 
 issued, indorsed to levy for a sum less than 
 eighty dollars. 
 
 Held, on appeal from the County Court, that 
 
777 
 
 JUDGMENT. 
 
 778 
 
 the judgment was properly set aside by the 
 County Court Judge. 
 
 Queen v. Hawea et al., 3 R. & G., 270. 
 
 38. Judgment to enable plaintiff to tax 
 
 costs set aside — Plaintiff brought action for 
 S84.33 for work done, Ac, for defendant, to 
 which defendant pleaded payment after action 
 brougiit. It appeared in proof that while plain- 
 tiff was in prison on a charge, the nature of 
 whicii was not disclosed, defendant obtained 
 from him a written acknowledgement, as follows : 
 " This day I ha\e settled all matters of account 
 and tlie suit brought against me by John McCabe 
 for 884.33," (Sgd.) " F. H. McNutt." The 
 signing of this was followed by the payment of 
 fifty cents by defendant to plaintiff, which the 
 County Court Judge held to be sufficient under 
 tlie plea. Yet he gave the plaintiff judgment 
 for ten cents to enable him to tax summary 
 costs. 
 
 The Court set the judgment aside and remitted 
 the case to the County Court. 
 
 McXult V. McCnhe, 2 R. & (i., 372. 
 
 39. Motion in arrest of, made for any 
 
 substantial defect on face of record — A motion 
 in arrest of judgment may be made for any sub- 
 stantial defect which appears upon the face of 
 tlie record. If the objection be valid, the whole 
 proceedings will be set aside, but the party may 
 be indicted again. 
 
 Queen v. BlacHe, 1 N. S. D., 383. 
 
 10. Non-suit — Judgment of, set aside 
 
 for irregularity — Plaintiff's solicitor entered 
 his cause for trial in the County Court, and 
 plaintiff was notified of the fact and requested to 
 attend, but was unable to do so or to notify his 
 solicitor on account of illness. 
 
 A judgment of non-suit having been entered 
 against the plaintiff under these circumstances, 
 with the consent of the solicitor, 
 
 ffelil, that the judgment was irregular and 
 must be set aside. 
 
 Plaintiff was allowed a new trial on payment 
 of the costs of the day ; other costs to abide the 
 event. 
 
 Walker v. Stewart, 7 R. &(J., 182; 
 7C. L. T., 247. 
 
 41. Plaintiff, after assignment of Judg- 
 ment, delivers satisfaction piece — Assignee 
 cannot set aatiafaction piece aside — Proper 
 remedy in Equity Court — The assignee of a 
 judgment recovered by the plaintiff against the 
 defendant duly recorded the certificate of judg- 
 ment and the assignment in the Registry of 
 Deeds. The plaintiff afterwards undertook to 
 
 deal with the judgment as his own, and signed 
 a satisfaction piece, which was also recorded, 
 
 A rule 7tMt was taken at the instance of tlie 
 
 assignee to set aside the satisfaction piece, but 
 
 the Court declined to interfere, considering that 
 
 the remedy must be sought in the Equity Court. 
 
 McXah V. ShorKand, 2 R. & G., 1. 
 
 42. Flea puis darrein continuance— Dis* 
 
 charge and composition — Judgment — Plaintiff 
 recovered judgment against defendant after plea 
 pui-H darrein continuance of composition and dis- 
 charge under the Insolvent Act of 1869, the suit 
 having been commenced before the assignment 
 of defendant under the Act. The discharge was 
 confirmed after plea and before trial, but does 
 not appear to have been brought to the notice of 
 the Court in any way at the trial. On motion 
 to set aside execution on the judgment. 
 
 Held, that the defendant must have the advan- 
 tage of the general provisions of the law in his 
 favor, which cancelled the original indebtedness, 
 and that the execution and proceedings there- 
 under must be set aside. 
 
 Wallace v. Bomom, 2 R. & C, 419. 
 
 Reversed on appeal to the Supreme Court of 
 Canada, 
 
 2 S. C. R., 488. 
 
 See APPEAL, X. 19. 
 
 43. Proceedings to revive must be in the 
 
 name of original parties or their legal repre- 
 sentatives — Plaintiff, as assignee of the original 
 judgment creditors of the defendant, issued a 
 writ of revivor in her own name against the de- 
 fendants. 
 
 Held, that the judgment must be revived in 
 the name of the original parties, or their legal 
 representatives in case of death. 
 
 Both practice and precedent require that a 
 judgment, once made a matter of record, should 
 not be afterwards varied in its essential features. 
 
 Construction of 4th R. S. , c. 94, s. 3,5.5. 
 Jost V. McNeill tt al., 
 
 20N. S. R., (8R. &«.), 159} 
 8C. L. T.,376. 
 
 44. Prothonotary signing, oat of term- 
 Judge delivering decision after court closed 
 and at another court — After notice of 7ion proa 
 a peremptorj' undertaking was given for the next 
 term at Fictou ; but plaintiff failed to try his 
 cause. Defendants' counsel moved for judgment 
 oi non prox, and the Judge took the papers and 
 reserved his decision. After the Court had 
 closed at Pictou, the Judge was applied to for 
 his decision at another Court, and initialed the 
 rule for judgment, upon which the judgment 
 
770 
 
 JUDGMENT. 
 
 780 
 
 was signed by the Prothonotary at Pictou. 
 Plaintiff, treating the judgment as a nullity, 
 proceeded to the trial in which defendant took 
 no part. 
 
 Hfid, that the plaintiff could not, under the 
 circumstances, proceed to trial, and the judg- 
 ment must be set aside. 
 
 Fraxer v. Fraser e< a/., 3 R. & G., 128. 
 
 43. Record by default, evidence of Judg< 
 
 ment — The so called " record by default," in the 
 Form No. 11, Schedule A, cap. 94, 4th R. S., 
 signed by the plaintiff's attorney, held legal 
 evidence of a judgment. 
 
 McDonald v. Fergmson, I R. & G., 70. 
 
 46. Record — Filing nnnc pro tunc — A 
 
 judgment had been entered up on verdict, there 
 was nothing to show that a record had been filed 
 excepting the fact that an execution had been 
 issued. More than thirty years afterwards a 
 rule lii-n was obtained for leave to file a record 
 therein mine pro tunc, in order tliat it might be 
 produced as evidence in a pending action be- 
 tween tlie sons of the original parties, the title 
 to land being in question — the rule was dis- 
 charged on tlie ground of the application being 
 made too late, and by a party in another suit. 
 Jieid V. Smith, 1 N. S. D., 20. 
 
 47. Recorded Judgment does not bind 
 
 land conveyed to defendant merely for the 
 purpose of re-conveying to third party — 
 Where a deed of real estate was prepared and 
 executed to give title to R., but R. failed to 
 complete the purchase, and subsequently H. & 
 G. purchased the real estate, and by agreement 
 between the parties, the deed to R. was recortled 
 simultaneously with a deed from R. to H. & G. in 
 action of ejectment by purchaser at Sheriff's sale 
 under judgment recorded against R., previously 
 to the recording of the above conveyances, 
 
 Held, that R. was a mere conduit pipe to 
 convey title from the vendors to H. & G. , and 
 that tlie judgment against him did not attach 
 to the real estate in question. 
 
 Owen V. Lynch, 2 R. & C, 406. 
 
 48. Record roll— Evidence of recovery- 
 Plea nul tiel record— Where in an action to re- 
 vive a judgment, defendant pleaded niU tiel 
 record, and plaintiff filed a record only five days 
 before tlie trial, and after plea. 
 
 Held, that the plaintiff could not recover, as 
 the matter alleged in the plea was true, and a 
 complete answer to the action. 
 
 The record roll filed by the attorney in the 
 
 ' cause on entering judgment is the only evidence 
 ' of a recovery. 
 
 Where plaintiff has died after recovering 
 I judgment without filing a record, it cannot be 
 filed by his representative without leave of the 
 Court or a Judge. 
 
 Che.4ey, Admr., v. Bonnett, 1 R. ft C. 112. 
 
 I 49. Record roll— Omission of declaration 
 
 I — Variance between date of judgment as 
 alleged and aa it appeared on record roll — 
 Objections not fatal — The omission of the 
 declaration from a record roll which set forth 
 the issue of the writ of summons, the names of 
 
 ! the parties, the particulars of claim, the plea of 
 
 j confession, &c., 
 
 I Hdd, not to be such a fatal irregularity as 
 would sustain the plea of nul tiel record, or pre- 
 vent the admission in evidence of the roll. 
 
 Held, further, that a variance between the 
 date of the judgment as alleged and as it ap- 
 
 , peared on the record was not fatal, as this latter 
 objection was not taken at the trial. 
 
 I McLearn v. Lytle, 5 R. & f!., .ST. 
 
 50. Record roll— Secondary evidence of- 
 
 In an action to revive a judgment, secondary 
 evidence of the record was admitted on proof of 
 loss, and of the entries in tlie hand of the lute 
 Prothonotary in the judgment book, indicating 
 
 I that the roll had been filed and execution issued. 
 
 ' Graham v. Boak; 3 R. & (i., 286. 
 
 51. Right of action taken away by Statute 
 
 after action brought but before judgment 
 delivered — Appeal allowed — An action was 
 tried in the County Court in February, 1878, 
 before the passage of the Act, against Com- 
 missioners, for discliarging a debtor imprisoned 
 on process out of the County Court, l)ut the 
 judgment, which was in plaintift''s favor with 
 eight dollars damages, was not pronounced until 
 December, 1878, the Act having passed in April, 
 i 1878, one clause of which provided that no action 
 i in any Court should be taken or sustained by 
 ! reason of proceedings theretofore taken for the 
 relief of such debtors being illegal, invalid or 
 1 void. An appeal from this judgment was sus- 
 j tained with costs, each party paying his own 
 costs in the Court below. 
 
 Johnxtoii V. Poyntz et al., 2 R. & G., 193. 
 I 
 
 I 52. Sale of land under second Judgment 
 
 passes good title — A sale of land under a second 
 I or later judgment is valid although there is a 
 
 prior outstanding recorded judgment, and passes 
 
 the title of the defendant subject to the prior 
 
 registered incumbrances. 
 I Smith et al. v. Smith etal.,2 Old., 303. 
 
781 
 
 JUDGMENT. 
 
 782 
 
 53. Satlsflictlon piece— Setting aside, as 
 
 fraud on plaintiff's solicitor — Collusion must 
 be shown — Appeal from a decision refusing to 
 set u.side a satisfaction piece alleged to have been 
 given in fraud of the plaintiff's solicitors for the 
 purpose of depriving them of their costs. 
 
 I'liiintiff had obtained a judgment against 
 dcfeiiilant, from which defendant appealed. 
 While the appeal was pending one E. T. without 
 the knowledge Of plaintiff's solicitors, and for 
 an ftp])iirently inadequate consideration, obtained 
 an assignment of the judgment from the plaintiff , 
 and a satisfaction piece, under the authority of , 
 which tlie judgment was discharged two days 
 later. j 
 
 It dill not appear that there was any collusion 
 on tilt' part of the plaintiff and defendant to 
 deprive the solicitors of tlie former of their 
 costs. 
 
 //(/(/, that the appeal must be dismissed, but 
 in view of the peculiar nature of the circum- 
 stances, without costs. 
 
 McFarlane v. iSmifh, 7 R. & G., 541 ; 
 8 C. L. T., 64. 
 
 54. Security for costs -Default in filing— 
 
 Not necessary to move for leave to enter 
 judgment — It is not necessary to move the 
 Court for leave to enter judgment under 4th R. S. , 
 cap. 94. .sec. Ill, where plaintiff has failed to 
 give security for costs within twelve months 
 after service of a rule therefor. 
 
 NtlsoH V. Fulton ; Gray v. McKeen, 
 2 R. & C, 402. 
 
 53. Setting aside Judgment as entered 
 
 against good faith— Laches — An application 
 to set aside a judgment on the ground that it 
 was entered against good faith, and contrary to 
 an undertanding between the attorneys of the 
 parties, must be made within a reasonable time. 
 Whei'e such an application was made nearly 
 eight mouths after the signing of the judgment, 
 the Court refused to entertain it. 
 
 McCiirdy V. Murdoch, 1 N. S. D., 409. 
 
 56. Setting aside Judgment — Costs — 
 
 Where ilefendant moved to set aside a judgment 
 obtained in the Supreme Court, one of the 
 groiinils l)eing that it was entered contrary to 
 good faith, and plaintiff resisted the motion 
 only to relieve himself of the charge of bad 
 faitli, which he did successfully, the defendant 
 obtained time to plead paying the costs of plain- 
 tiff's opposition in so far as it related to the 
 ground of bad faith. 
 
 Smithers v. Smith, 1 R. & G., 555. 
 
 57. Setting aside Judgment — laclies — 
 
 Rule to open judgment by default refused where 
 
 the defendant was fully aware of all the pro- 
 ceedings, and failed to account for his delay in 
 moving. 
 
 CummingH v. Oladwin, 4 R. & G., 168. 
 
 On appeal to the Sujtreme Court of Canada, 
 Held, not an appealable judgment. 
 
 Cas. Digest, 245. 
 
 58. Setting asidejudgment— Motion made 
 
 a year after entry — Defective notice of trial — 
 Appeal from refusal of Judge of County Court 
 to open, allowed — This cause being at issue 
 and for trial in the County Court at Antigonish, 
 it was agreed by the parties to refer it to arbitra- 
 tion, but no steps were taken to that end by 
 either party, and on the cause being called on 
 the docket on the first day of the sittings, defend- 
 ant's counsel not answering, plaintiff obtained 
 judgment under the practice in 4th R. S. , cap. 94, 
 sec. 202, which did not come to the knowledge 
 of the defendant until more than a year after- 
 wards. Defendant then obtained a rule nini 
 from the County Court Judge to set the judg- 
 ment aside, on the ground, among others, that 
 no proper notice of trial had been given, V)ut the 
 Judge discharged tlie rule nisi, on the ground 
 that it had not been moved for within a year. 
 An appeal was allowed on the grounds appearing 
 in the rule nixi. 
 
 Held, that an appeal lay from the decision of 
 the County Court Judge under the Act of 1878, 
 cap. 9, sec. 14 ; that the Judge of the County 
 Court had an inherent right to open up the judg- 
 ment, even after the lap.se of a year, to let in a 
 trial on the merits ; that the notice of trial was 
 bad, there being no place named where the trial 
 was to be held, and therefore, that this Court 
 must deal with the judgment as if there had been 
 no notice of trial. 
 
 Weatherbe, J., though concurring in the re- 
 sult, questioned whether the provisions as to the 
 appeal in the Statute of 1878 were applicable to 
 the case, as the action had been commenced 
 previous to 1878, and held that the provisions 
 in the Act of 1877 were not applicable, as there 
 had l>een no trial, but that there was an appeal 
 by sec. 53 of the Act of 1874, cap. 18, which he 
 held to be unrepealed. 
 
 Anderaon v. Taylor, 3 R. & C, 526. 
 
 59. Setting aside Judgment on ground 
 
 of fraud and breach of faith — Affidavits 
 answering new matter— Leave to use refused 
 —4th R. S., c. 96, 8. 15— Cf 5th R. S., c. 104, 
 O. x-Avi., R 18 — The Court has rarely per- 
 mitted affidavits to be produced under sec. 15 
 of the Evidence Act, 4th R. S., c. 96, and in the 
 few coses in which they have done so, such course 
 
783 
 
 JUDGMENT. 
 
 784 
 
 has been rendered irccessary to prevent the 
 grossest injustice or to vindiuute the standing of 
 members of tlie Bar. 
 
 On argument of a rule to set aside a judgment 
 obtained againHt defendant on the ground, among 
 otiiers, that the judgment had been entered in 
 fraud of defendant and against good faitli, the 
 Court refused to allow defendant to produce 
 affidavits in support of his rule when the affida- 
 vits of plaintiff contained no new matter except 
 in reference to the title of the defendant to the 
 land on which the judgment fornied a lien. 
 There was a variance between plaintiffs and 
 defendant's statements as to the consideration 
 for which the confession was given, plaintiff 
 having deposed that it was for the indebtedness 
 to him of defendant's brothers, who had become 
 insolvent, and that he had agreed to credit tliem 
 with further supplies of goods upon being suffi- 
 ciently secured. Defendant deposed that the 
 security was given wholly for future advances 
 of goods and obligations to be incurred by plain- 
 tiff on account of the insolvents, and that plain- 
 tiff had wholly refused to carry out his part of 
 the contract. Plaintiff, when confronted with 
 the facts as deposed to by defendant, admitted 
 that defendant's statements were true, but con- 
 tended that the judgment was not sufficient for 
 the purjwses for which it had been given, and 
 said that be held it as a security for the past in- 
 debtedness of tlie insolvents, for which he had 
 accepted a i'rtnpromise. The judgment was set 
 aside. 
 
 O'MulUn v. McDonald, 3 R. & C, 201. 
 
 60. Setting-offjudgments- Rigbt to, not a 
 
 legal, but an equitable right— Cases in which 
 order to set-off refused — Plaintiff obtained 
 judgment in an action of trover against the de- 
 fendant, <lefendant having at the time, and in 
 the same Court, two judgments against the 
 plaintiff outstanding and unsatisfied. Defendant 
 obtained a rule niin, calling on plaintiff to show 
 cause why one of defendant's judgments should 
 not be off set against that obtained by plaintiff. 
 On argument the rule was made absolute. 
 
 The right of setting off one judgment against 
 another is not a legal right, but is given by the 
 equitable jurisdiction of the Court, with refer- 
 ence to the circumstances of the case. The 
 cases where a rule has been refused are cases 
 where there has been an absolute judgment on 
 one side and not on the other, but a judgment 
 depending upon a contingency. 
 
 McDonald \. Lawrence, 1 N. S. D., 411. 
 
 61. Signing of, by Judge— A Judge, In 
 
 signing judgment, does so without responsi- 
 
 bility. The party who obtains it, takes it at his 
 own risk. 
 
 Johnstone v. lirenan, James, 177. 
 
 62. Stranger to record no locus standi to 
 
 attack judgment— Proper remedy— Laches— 
 
 In a wise of replevin, the defendant withdruw 
 
 his pleas and gave a c(mfeHaion, upon whiili 
 
 plaintiff regularly entered up judgment. Some 
 
 i time subsc(j[uently W., who was not a party to 
 
 the suit, but who claimed tlie goods replevicil 
 
 under an assignment from the defendant, iiml 
 
 I was one of the sureties upon the replevin ImhhI 
 
 [ to the .Sheriff, sougiit to have the judgment .set 
 
 I aside, on the ground tliat tiie confession was n 
 
 j fraud upon him and the otiier creditors of ilefcii' 
 
 I dant, and also tiiat he had joined with defendiuit 
 
 in the pleas, whicliiiad been withdrawn witlidui 
 
 his sanction. The latter allegation was denicil, 
 
 both by defendant and defendant's attorniy, 
 
 whom \V. swore he iiad instructed to act foe 
 
 him. 
 
 Hdd, that W., not being a party to the if- 
 cord, had no locwi standi, his redress, if any, 
 being against defendant's attorney, and also liiat 
 he had been guilty of /ach< i. 
 
 Hart V. Murphy, .3 N. S. 1)., •-VJ. 
 
 63. Suggestion when Judgment six years 
 oldanddefendant out of jurisdiction — Toentiile 
 plaintiff to enter suggestion on the record ot a 
 judgment, more than six years old, wlieii ile- 
 fendant is out of the Province, the rule iiuist lie 
 published thirty days in the " Royal (iazcltf." 
 
 Ktith V. Cunnimjham, 2 Thorn., 149. 
 
 64. Summary writ— Not necessary under 
 
 Acts 1882. c. 2, s. 87, to indorse notice of trial 
 — Defendant sought to set aside a defaidt on tlie 
 ground that there was no notice of trial indmseil 
 on the writ of summons, although there was a 
 notice to appear. 
 
 Held, reversing the judgment of the County 
 Court Judge, that the default was regular. 
 
 RincH v. Hermes, 5 R. & (J., .'i.VJ. 
 
 65. Supreme Court no Jurisdiction to 
 
 order judgment to be entered up in County 
 Court — The Court dismissed an appeal, for 
 irregularity in the form of the rule, and granted 
 a rule directing the Clerk of the County ('(Hirt 
 to enter up judgment in the County Court for 
 the plaintiff. On appeal from a decision <lis- 
 charging a rule nixi to set the judgment aside. 
 
 Held, that the order ot this Court for enter- 
 ing up judgment was in excess of jurisdiction, 
 and that the Clerk of the County Court had no 
 authority to enter up judgment. 
 
 HuestM v. Lyons, 3 R. & G., 284. 
 
785 
 
 JURISDICTION. 
 
 78G 
 
 66. Unrecorded deed avoided by a Judg- 
 ment recovered subaequently, but registered 
 first — Possession of grantee — Notice to 
 judgment creditors— Construction of Revised 
 Statutes (4th series) e. 79, s. 22 -Chapter 79, 
 (if tlie Kuvisetl Statutes (4th series), s '22, reads : 
 " A judgment duly recovered and docketed shall 
 liiiid the lands of the party against whom the 
 judgment shall have passed, from and after the 
 registry thereof in the county, or district, where 
 the lands arc, as effectiuilly as a mortgage, 
 whether such lands shall liave heen acfjuired 
 liefore or after tlie registering of such judgment ; 
 :in(l deeds, or mortgages of such lands duly exe- 
 cuted, hut not registered, shall be void against 
 the judgment creditor who shall first register his 
 judgment.'' 
 
 Tiie Bank t)f British North America recovered 
 a judgment against one Merriam and others, 
 January "Jlst, 1870, and registered the judgment 
 nn the ff)llowing day. 
 
 On tlie 'i.Srd April, 1873, Merriam conveyed 
 certain lands to one Fraser, under whom defend- 
 iuit claimed, who went into possession and 
 improved the lands, and was in possession at 
 tlie time of the recovery and registry of the 
 judgment, but neglected to rcjord his deed 
 until January '28th, 187(5, some days after tiie 
 registry of the judgment. 
 
 On May 5th, 1870, after execution had been 
 duly issued, the property was sold at Sheriff's 
 sale to plaintiff, the general mann.ger of the 
 Biink of British North America, who brought 
 ejectment. Neither the plaintiff nor the bank 
 of which he was manager had actual notice of 
 the conveyance to Fraser, or of the fact of pos- 
 session, until just previously to the sale. 
 
 Held, /(ir McDonald, J., McDonald, C. J., and 
 Smith, J., concurring, that the prior unrecorded 
 deed to Fraser was avoided by the registry of 
 the judgment, and the plaintiff was entitled to 
 recover. 
 
 Weatherbe, J., dinsenthuj. 
 
 Orindhy v. Bkikk, 7 R. & «., 27 ; 
 7 C. L. T.,50. 
 
 JURAT- 
 Ste AFFIDAVIT. 
 
 JURISDICTION. 
 1. Absent or absconding debtor — The 
 
 purchase and acquisition of real estate in this 
 Province by a party who has never resided or 
 
 done business therein, either by himself or 
 agents, is not sufficient to bring him within the 
 jurisdiction of the Court as an absent or abscond- 
 ing debtor. 
 
 Cochran v. Duncan, 2 Thorn., 80, affirmed. 
 
 MitU V. .SrmtM, 2 01d.,86. 
 
 See ABSENT OR ABSCONDING DEBTOR. 
 
 2. Arbitrators, Ming award beyond their 
 
 jurisdiction— 
 
 Ste ARBITRATION AND AWARD, 14. 
 
 3. Attacking regularity of proceedings In 
 
 one Court in another Court — In an action to 
 ! recover a debt, defendant produced a certificate 
 I of his discharge as a bankrupt. 
 I //dd, that it was not comjietent for the plaintiff 
 I in this action to show irregularity in the procccd- 
 i ings in the Insolvent Court, or to attack the ilis- 
 I charge on the ground that defendant was not a 
 j trailer, and therefore not a legitimate subject of 
 I the jurisdiction exercised. 
 
 lieu/air v. Gillialt, .3 N. S. 1)., ry2-t. 
 Questioned in Brown v. Pearman, R.K.D. ,491. 
 
 4. CityofHalinix-Hayor's Court-Claim 
 
 reduced by cash payments — Jurisdiction — 
 Where the plaintifTs demand has been reduced 
 by casii payments below ten pounds in the City 
 of Halifax, the Mayor's Court has exclusive 
 jurisdiction. 
 
 DoHOi'an v. Mahar et al., .James, 91. 
 
 5. Claim less than $20, in County Court - 
 
 Plaintiff entitled to recover in absence of plea 
 to the jurisdiction — Plaintiff brought an action 
 against the defendant for the price of a horse, 
 and the declaration contained also the cominou 
 counts. It appeared that the horse had been 
 sold, not to defendant but to a third party, 
 from whom defendant received .$65, to be paid 
 to tlie plaintiff. He paid only $52, used the 
 balance of $13 for his own purposes, and told 
 plaintiff he would give him the balance. He 
 afterwards claimed a set-oflF against plaintiflF, of 
 which there was no plea. 
 
 H(td, that in the absence of a plea to the 
 jurisdiction, as required by the County Court 
 Act, the plaintiff was entitled to recover the .?13 
 under the money counts. Judgment reversed. 
 
 McDonald, J., dUienlivfj. 
 
 Sharp V. Maxner, 3 R. & (i., 105. 
 
 6. Claim reduced by cash payments- 
 Plaintiff sued in the County Court on an agree- 
 ment that he should receive $800 as the full 
 amount due him on a settlement of partnership 
 debts collected. Defendant contended that none 
 of the debts were collected before November, 
 1881, so that nothing was due until then ; that 
 
787 
 
 JURISDICTION. 
 
 788 
 
 the payments credited by plaintiff Iwing previous 
 to that date, could not l>e connected with his 
 claim, which was therefore lieyond the jurisdic- 
 tion of the Court. 
 
 Ili'ld, that the payments were made on 
 ftCCDunl of the agreement, and that the debt 
 having been reduced ))y cash payments, the 
 plaiiititT's claim was within the jurisdiction of 
 the ( 'ounty Court. 
 
 Prefdy v. litMwin, 5 R. A O., 80. 
 
 7. Commissioner of Mines — Jurisdiction 
 
 of, to forfeit lease— 
 
 Sep. MINING LAW. 
 
 8. Common Law Courts-Jurisdiction to 
 
 entertain action for legacy— An action for a 
 certain legacy can he maintained in Common 
 Law Courts against any person who, un<ler a 
 M'ill, is made liable to pay such legacy, and re- 
 ceives under such will, funds suHiciunt to pay it. 
 Ells V. KlU, 1 Thorn., (Und Kd.), 17.S. 
 
 9. Contempt of Court— Wliole Court sus- 
 pends Barrister for, - Court not qualified to act 
 in or take cognizance of action against one of 
 the Judges for such suspension— Plaintiff, a 
 Barrister of the i^upreme Court, having commit- 
 ted a contempt of Court, was, by the act of the 
 whole Court, suspended from practice. I'laiii- 
 tiff, thereupon, brought an action against the 
 Chief Justice, alleging in his declaration that the 
 acts therein complained of were acts alone of the 
 defendant, in which the rest of the Court were 
 not implicated. Defendant pleaded that plain- 
 tiff's suspension was the act of the whole Court, 
 but plaintiff contended at the argument on the 
 ride to show cause why certain of defendant's 
 pleas .shouhl not be amended, that his complaint 
 was limited to a charge against the defendant for 
 having maliciously and without probable cause 
 instituted the proceedings which led to his sus- 
 pension, defendant having denied that he indi- 
 vidually originated the proceedings, 
 
 Htld, that as this denial brought the rest of 
 the Court directly into the contention, none of 
 the Judges then sitting on the Bench could 
 judicially act in or take any cognizance of the 
 cause even with the consent of the parties 
 thereto. 
 
 Wallace v. Young, 1 N. S. D., 173. 
 
 10. County Court— Claim cannot be di- 
 vided in order to give Court jurisdiction — 
 Defendant« entered into a bond to the plaintiff 
 and his co-executor, to secure a debt of 0810, 
 payable by instalments, the firsc of which, 
 amounting to 8161.40, was overdue ; but the 
 condition of the bond referred to a mortgage 
 
 ' given contemporaneously with it, which con- 
 tained a covenant that on default made in |>ay- 
 ment of any instalment, the whole sum unpaid 
 shouhl Iwcome due and payable. Action wag 
 brought in the County Court for the amount of 
 the instalment. 
 
 Held, that the judgment of that Court, which 
 
 was for plaintiff, could not be sustained for want 
 
 of jurisdiction, the debt being indivisible for 
 
 8810, ond recoverable only in the Supreme Court. 
 
 Bath, I.MCiUor, v. DennUon el a/., 
 
 3R. &C.,30.3. 
 
 11. Counter-claim for amount above the 
 
 {jurisdiction of the County Court cannot be 
 amended after plea objecting to it on that 
 ground — Jurisdiction of County Court as to 
 I such counter-claim — In an action brought i)y 
 I plaintiff in the County Court, on an award, to re- 
 cover the amount thereof, the defendant counter- 
 j claimed, besides other items, for the sum of 
 \ 8400, being the value of a machine wrongfully con- 
 ; verted by the plaintiff. Plaintiff replied to the 
 counter-claim, among other things, that it wm 
 I beyond the jurisdiction of the Court, which in 
 cases of tort was limited to 8200. The Judge of 
 the County Court iiermitted the defendant to 
 j amend the counter-claim for damages, so as to 
 bring it within the jurisdiction of the Court, ami 
 , gave judgment in his favor for 8200 and the other 
 I items, in all fur 8222.23, less the amount found 
 I to be due plaintiff. Plaintiff appealed. 
 
 Held, per James J., that the County Court 
 [ Judge was only authorized to give the defendant 
 i the l)enefit of his counter-claim to the extent of 
 ; the amount of plaintiffs claim, but that having 
 j allowed defendant more than that amount, tlie 
 j appeal must be allowed. 
 
 I Per McDonald and Ritchie, JJ., that, after 
 I the filing of a plea, objecting to the counter- 
 j claim as beyond the jurisdiction of the Court, 
 ! the County Court Judge had no jurisdiction to 
 j amend it, by reducing it to an amount within 
 ; the jurisdiction of the Court, the County Court 
 Act, 5th R. S., c. 105, a. 25, only permitting 
 ; such amendment to be made in the absence of a 
 plea to the jurisdiction. 
 
 Bate>i V. Craythvm*, 7 R. & fi., 250. 
 
 12. County Court- Plea that claim is In 
 
 excess of jurisdiction of, — Where plaintiff was 
 originally indebted to defendant in 8335.90 and 
 defendant sold plaintiff a vessel for 8600, thus 
 making the balance in plaintiff's favor 8224.10, 
 which was afterwards increased to 8290.78, and 
 then reduced by set-off of cash and goods amount- 
 ing to $179.05 to 8111-73, 
 
 Held, that there was no evidence to support 
 the plea, the burden of which was on the de- 
 
789 
 
 JURISDICTION. 
 
 790 
 
 feniluit, that the plaintiff's uluim was in excess 
 of tlie jurisdiction of the County Court. 
 
 i/cA'oy V. Allan, 6 R. & (1., 476 ; 
 6 C. L, T., 538. 
 
 13. County Court— Power of Local Legis- 
 lature to define jurisdiction of, — Under the 
 Cuiiiity Incorporation Aut of 1H81, c. I, a. 18, a 
 County Court Judge who is disiiualiiied from 
 trying a ]ietition-in a contested niuniciiml elec- 
 tion, may call iu another County Court Judge 
 to (111 m>. 
 
 Tlio jurisdiction of County Court Juilges does 
 not ilepund upon their commissions, which are 
 only ik'scriptive of the tribunal over which such 
 Judges lire appointed to preside, but upon enact- 
 ments of the Provincial Legislature, which may 
 dt'tint!, enlarge anil extend tlie ilistrictH within 
 wliiih the Judges sit, as it sees tit. 
 
 Crowt V. McCiirdy, tt R. & G., 301 ; 
 C. L. T., 4.J3. 
 
 14. County Court -Power to order inter* 
 
 pleader — The County Court has j)o\ver to grant 
 reliof under the sections of the Practice Act 
 •"of interpleader." 
 
 Cooper V. Mylne, 2 R. & C, 382. 
 
 13. County Court— Trover in -Claim for 
 
 $200 -Value of goods alleged to be $600 by 
 defendant's pleas — Jurisdiction of County 
 Court— An action of trover was brought against 
 defendants in theCountyCourt, at Halifax, N. S., 
 ■'to which tiiey pleaded a numljer of pleas, includ- 
 ing one to the jurisdiction of the Court. This 
 pleii was based on an allegation that the goods for 
 which the action was brought were of the value 
 of .?()(»(), the jurisdiction of the Court in actions 
 of tort being limited to §200. The plaintiff 
 ilcmiured to the plea of want of jurisdiction, and, 
 after argument, the demurrer was overruled. No 
 appeal was taken from the judgment overruling 
 the demurrer, but the plaintiff gave notice of 
 trial, and entered the cause for trial at Chamljers, 
 before the County Court Judge, who announced 
 his intention of trying the same on the remain- 
 ing pleas. The defendants obtained a rule nini 
 for a writ of prohibition to restrain the Judge 
 from trying the cause, on the ground that the 
 judgment on the demurrer dis|)osed of the whole 
 case. 
 
 Jfi-lil, that the plea was not a good plea, as 
 the damages claimed were only 18200, and the 
 measure of damages in trover was not necessa- 
 rily the value of the goods, and that, the Court 
 having jurisdiction, the writ of prohibition could 
 not lie granted. 
 CToote et al. v. IVallace e< o/., 4 R. & G., 357. 
 
 On appeal to the. Supreme. Court of Cana>la. 
 I/eld, Strong, J., di■^'^entinl|, that the effect of 
 the judgment on the demurrer was to quash the 
 writ, and the rule nisi for a writ of prohibition 
 should be made absolute. 
 
 J'tr Strong, J., diluent in;/, that the judg- 
 
 I ment of the County Court Judge on the demur- 
 
 I rer did not dispose of the case ; but he had a 
 
 right to re-consider the same on the trial of the 
 
 issues raised by the other pleas ; that the plea 
 
 to the jurisdiction, by attorney, was null and 
 
 void, and if judgment had lieen entered of 
 
 record on the demurrer, such judgment wouhl 
 
 { have lieen likewise null and void, and that the 
 
 I amount claimed by the plaintiff's declaration 
 
 ; being over (■<«■ in Cas. Digest, probably " only ' 
 
 ■ correct reading) §200, the Court had jurisdiction. 
 
 Wallace v. O'Toole, 10th February, IStio, 
 I Cas. Digest, 422. 
 
 I 
 
 16. Courts of one Province no power to 
 
 ! restrain proceedings in another— 
 
 //»-/(/, that the Quebec Court had no jKiwer to 
 
 I enforce a restraining order to stay proceedings 
 
 in the (\)urt8 of this Province, but that proceed- 
 
 ' inga for that purpose should have been taken 
 
 here. 
 
 i The Halifax Bankiwj Co. v. The Dominion 
 
 Salvaije and IVreckiw/ Co., G R. & O., 364 ; 
 
 6C. L. T.,490. 
 I See IXSOLVENCT, 30. 
 
 17. Oerendant cannot oust Jurisdiction 
 
 to try a claim involving no question of title 
 by pleading set-off involving such question — 
 Appeal to Supreme Court in such case — Where 
 i a Court has no jurisdiction to try a question of 
 title, defendant cannot oust the jurisdiction to 
 entertain a claim involving no question of title 
 by pleading a set-off that involves a question of 
 , title. 
 
 An action was brought in the Magistrates' 
 Court and judgment given for plaintiff. The 
 ' County Court Judge, on appeal, decided that the 
 ; question of title was involved, and the Court 
 '■ was therefore "excluded from jurisdiction." 
 i Held, that an appeal lay to the Supreme Court 
 ; from the decision. 
 
 Creighton v. Liiidnay, 3 R. & G., 243. 
 
 18. Equity Court— Power of, over real 
 
 estate of infanta— The power of the Equity 
 ' Court over the real estate of infants in this Pro- 
 vince is more extensive than any such power 
 which has ever been exercised in England. 
 
 In re Estate of Lawlor, 2 N. S. D., 153. 
 
 19. Extradition — Trying prisoner for 
 
 offence other than that for which extradited — 
 
7&1 
 
 JURISDICTION. 
 
 792 
 
 A i|iteHti(m having been raised at the trial by 
 (lenmrrer uh to the power of the Court to try or 
 convict the defendant for another otrcneu than 
 that for which he was extradited, and having 
 been decided )>y tlie presiding Judge against the 
 defendant. 
 
 Held, that it was too late to raise tl'e (luestion, 
 by ease reserved, for the full (Jourt. 
 
 Quetii v. CuiittiiKjham, (1 R. & (i., ;)1 ; 
 ttC. L. T., 130. 
 
 On apiieal to the Suprenu Cowl of Canada, 
 Per .Strong, J.— Tlie Court below rightly held, 
 ontheauthorityofR,v.Fadernian,I)en. C.C.,r)7'2, 
 that the ((uestion raised by the demurrer was not 
 properly before the Court, the presiding Judge 
 having given judgment on the demurrer, over- 
 ruling it at the trial. Moreover, there was 
 nothing in the law un<ler which the prisoner was 
 extradited to prevent the Court from trying 
 him for any offence for which he was, according 
 to the law of the Dominion, justiciable before it. 
 Qmtn V. Cumiiiiijham, tOth March, ISSS, 
 
 Cas. Digest, 107. 
 Str CRIMINAL LAW, 7. 
 
 20. Foreigner eommlts oflTence on high 
 
 seas in a foreign ship— British Court no juris- 
 diction—A British Court has no jurisdiction to 
 punish a foreigner for an oflFence committed on 
 the high seas, in a foreign ship, against a 
 British subject. 
 
 Queen V. Kimman, James, 62. 
 
 21. Inferior Courts -Jurisdiction must be 
 
 shown — In an action for the conversion of a 
 quantity of intoxicating liijuors the defendant, 
 P., justified as a constable, acting under a 
 warrant purporting to have been issued by a 
 Justice of the Peace under the provisions of tlie 
 Canada Temperance Act, 1878, and the defen- 
 dant M. as his assistant. 
 
 Tlie facts necessary to give jurisdiction did 
 not appear either in the infornitttion or warrant, 
 and the warrant was issued by one justice, con- 
 trary to section 108 of the Act. 
 
 Held, that the conviction was bad. 
 
 AIko, that the constable being a trespasser, 
 his assistant could not justify under him. 
 
 Nothing will be intended in favor of the juris- 
 diction of an inferior court. 
 
 Gallihew v. Pelerton et ai, 20 N. S. R., 
 
 (8R. &G.), 222; 
 8C. L. T.,.S97. 
 
 22. Insolvency— Jurisdiction of Judge In, 
 
 —Where the Judge of the County Court for 
 District No. 2, Lunenburg, &c., passed two 
 orders, one postponing a meeting of creditors 
 called to consider an offer of composition, and 
 
 ordering the assignee to retain the estate until 
 discharge applied for, and the other ordering :k 
 meeting to bo held at Halifax, the Court, luiM- 
 ing that the Judge could not order such lu'.utiiig 
 out of his own jurisdiction, set aside both orders, 
 as both had a common object, and directed tho 
 costs of tho appeal to be paid out of the estate. 
 Ill rt Suthtrland, 3 R. & C. , H9, 
 
 23. Insolvency— Jurisdiction of Judge In, 
 
 to net aaide writ of attachment— 
 
 Sec INSOLVENCY, B3. 
 
 24. Insolvent debtor Imprisoned under 
 
 execution out of Supreme Court— Commis- 
 sioners' decision — Appeal from, lies to session 
 when no County Court Judge in County — 
 An appeal from a decision of ComniiHsioners 
 refusing, to discharge an insolvent debtor was 
 taken to the Court of .Sessions on the ground 
 that there was no County Court Judge in tlic 
 County where the debtor was confined. The 
 Justices having refused to hear the appeal, nn 
 the ground that they had no jurisdiction and uu 
 order iiaving been applied for to compel them to 
 do so. 
 
 Held, that the appeal was properly tiikeii. 
 The debtor was held under an execution issiUMl 
 out of the Supreme Court. Construction of 
 chapter 118, Revised Statutes (5th Series l, sec- 
 tion 27. 
 
 Amxxiromj v. Tr^ney, 7 R. & (i., 19. 
 
 25. Mortgage — Foreclosure — Action 
 
 brought at Common Law — Waiver of objec- 
 tion to jurisdiction — A writ of sumuions wivs 
 issued commanding defendants to appear in the 
 Supreme Court at Truro at the suit of plaintitTs 
 who alleged thst defendants were indebted for 
 principal and interest on a mortgage, reciting 
 the proviso for redemption. The writ proceed- 
 ed to set out an amount due on a promissory 
 note of defendants for the same amount as the 
 mortgage, given as collateral security, and prayed 
 that in default of payment the equity of redemp- 
 tions should be foreclosed and a sale of the premise* 
 made. Defendant treated the suit as one brought 
 in this Court under 4th R. S. , c. 103, and not us an 
 equity suit, and pleaded various gi-ounds of de- 
 fence. The cause was twice tried and the verdict 
 for defendants was in each case set aside by tlie 
 Court in banco. Plaintiff then took a rule nid 
 to rescind the rules setting aside the verdict on 
 the ground that the Court had no jurisdiction, 
 the suit being an equity case. 
 
 Held, that although the writ was not in strict 
 conformity, with the procedure pointed out in 
 chapter 103, yet the Court had jurisdiction to 
 
793 
 
 JURISDICTION. 
 
 794 
 
 (leiil \y\tU tliu ciiHe, not iir nne brouglit for the 
 fnrt'i'IiiNiiru (if an oiiuity of I'odoinptioii, l)ut us 
 oiif ill wliicli (III n(>ii-]myiii(ii)t of tlio iimrtgugo 
 iUiil iiotu ivii (inlar of hiiIo of tlio prciniMUB wuh 
 Hdii^ht, luid tliat it wua too lute to rnitio tlt« 
 iliii'Mtiiiii of wivnt of jiii'i8(liotion grounded on un 
 infiiriiiitlily in tliu writ, wiiiuli liad l)coii waived 
 liy lU'tViiilantH pleading to and defending the 
 cuuHi' iiH an action at ('oinnion Law. 
 
 A(/;)(/i (t a(. V. Honr (I a/., '2 R. & G., 237 ; 
 
 I C. L. T., 710. 
 
 W, Mortgage -Power or Court to dlBpose 
 
 of purtions of mortgaged property— I'laintitf. 
 \\\\i> was mortgagee of certain coal uieaa, &c,, 
 liiiviiig t'oninienced an action of foreclosure 
 iigiiiiist the defendants, wlio were trustees of the 
 Millie, and obtained un order of Hale, H., one of 
 tliu ceilitlH que truMent, applied to tiie Court on 
 petitiiiii stating out tliat shortly before tlie date 
 of the (iiilcr there was ready for shipment at tlie 
 time a huge (juantity of coal wliicii, if sold and 
 the iiviicecils applied to that purpose, would be 
 iiioie than sutlicicnt to pay theuinountdueon t'le 
 mortgage, and claiming that the sale of tlie mine 
 miller tiie circumstances, would be a great 
 ilijiistiee. 
 
 lli.lil, tliat, where eijuity to the cestui que trust 
 rei|uires it, especially if tiie mortgagee be not 
 piejudiced thereby, the Court possesses the 
 power and will exercise it to dispose of sucli 
 purtions of tiie mortgaged property as will least 
 iiijiiie tlic mortgaged property and yet cxtin- 
 giii.sii tiie debt. 
 
 M unlock V. Laicson, 3 N. S. ])., 53'2. 
 
 27. Objection to want of Jurisdiction in 
 
 Justices of the Peace waived by certain steps 
 taken — Defendant was prosecuted under cliuptcr 
 19, Revised JStatntes (3rd series), for a violation 
 of the law relating to the sale of intoxicating 
 liciiKirs. There was no actual service upon hini 
 of tlie writ of summons. Defendant having been 
 couvieted in his absence, appealed, and tiled the 
 necessary bond under the Statute. 
 
 Hdd, that the defendant having appealc(i and 
 thus virtually appeared, and having avoided the 
 judgment below by having taken an important 
 step in the cause, it was not competent to him 
 to repudiate the jurisdiction of the Court below 
 on the ground of want of personal service. 
 
 Rand v. Rockwell, 2 N. S. D., 199- 
 
 2S. OITence committed at sea— Jurisdic- 
 tion to convict for — The prisoner having picked 
 up certain goods that had floated away from the 
 wreck of a steamer appropriated tliem to his own 
 use. He was indicted for larceny, the property 
 
 in the goods being laid in the captain of tiiu 
 steamer, and at tlio trial the judge instructed 
 
 ' the jury that they ould not convict him of lar- 
 ceny. The prosecution then claimed a conviction 
 
 ' for a misdemeanor and the jury found according- 
 ly. On a case being reserved for tiie full Court, 
 Held, Wilkins, J., ilisseuliinj, that under sec- 
 tion 110 of the Tjirceny Act, 32 and 33 Vic, 
 c. 21, s. 3, the conviction must be sustained, 
 and that although tho oHTence was probably 
 
 \ committed at sea, the Court had full jurisdiction 
 in tlie premises. 
 
 Queen v. Martin, 3 N. S. 1)., 124. 
 
 20. Pleas -Setting aside as fblse-Jurls< 
 
 diction of Court— The word " false " in tlie 7l8t 
 sec. of the Practice Act (Rev. .Stats. 3rd .Series), 
 
 ' is the foundation of a jurisdiction exercised by 
 the Court, more extended than any authority to 
 set aside pleas claimed by the Superior Courts 
 ill Kiigland. Hut the Court does not ii.ssert or 
 exercise a power to try a cause thus sutnmarily, 
 or decide controverted facts, 
 
 Tlie Court has a right to recjuire an explicit 
 explanation of facts necessarily within the defen- 
 dant's knowledge on the pain of treating his pleu 
 as fraudulently evasive or false. Facts not so 
 within his knowledge may be stated less dis- 
 tinctly. In the latter case it may be proper to 
 admit statements of inf.>rmation and belief 
 which would be inudmissiljle to substantiate a 
 
 I fact before a jury, the Province of the Court or 
 Judge being not to estalilish a fact, but to ascer- 
 tain whether there is a fact to be tried. 
 
 ' The Hank of Nova Scotia v. Chijmmn et al., 
 
 j IN. S. D., 521. 
 
 30. Probate Court- Claim on estate of 
 
 j deceased partner arising out of partnership 
 dealings — Jurisdiction of Court notwith- 
 standing surviving partner not made a party — 
 Held, that the Court of Probate had juris- 
 diction to decide on petitioner's claim for a part- 
 nership debt against the estate of a deceased 
 partner, notwithstanding that the surviving 
 partner was not made a party to the proceedings. 
 In re Estate of I vex, ex parte Campbell, 
 
 7 R. &G., 108; 
 7 C. L. T., 146. 
 
 Hi. Probate Court— Jurisdiction of— Tlie 
 
 real estate of the intestate was partitioned by 
 commissioners appointed under the Probate Act, 
 who, by their report, left a certain portion of 
 the land undivided. This partition was con- 
 firmed by order of the Court, the estate having 
 been previously settled by decree of the Judge 
 of Probate, which was in evidence. Afterwards, 
 
795 
 
 JURISDICTION. 
 
 796 
 
 W. Hawkius, husband of one of the heirs 
 of intestate, petitioned the Judge of Probate for 
 a partition of the undivided portion ; and a 
 large body of evidence of possession was put in 
 on both sides, jthe whole of which this Court 
 held to be futile and unnecessary, as there was 
 no ground for sustaining any possession in either 
 party, that could influence the decision. The 
 Judge of Probate dismissed the petition on the 
 ground that he had no power to settle disputed 
 questions of title. On appeal to the Judge in 
 Equity the decision was overruled and the Judge 
 of Probate directed to proceed with the cause, 
 which he did, and dismissed the petition on the 
 merits, dividing the costs between the litigants. 
 
 Both parties having appealed, 
 
 Hdd, that the final decree above referred to 
 was evidence, with the other evidence before tlie 
 Court of the final settlement of the estate by the 
 Judge of Probate ; that after such settlement 
 his jurisdiction over any unsold or undivided 
 shares ceased ; that the objection for want of 
 jurisdiction was rightly taken at any stage, and 
 that the appeal of the petitioner Hawkins must 
 be dismissed. 
 
 In re Estate of John Simpson, .3 R. & C, 357. 
 
 32. Probate Court- Jurisdiction in dis- 
 tribution of personal property devised to 
 executors for a purpose which fails— Personal 
 property devised to executors for a purpose 
 which fails, must be distributed by the executors 
 among the next of kin. Such distribution is 
 within the jurisdiction of the Probate Court. 
 
 Estate of Alexander McDonald, 
 
 James, 123. 
 
 33. Probate Court— Powers ol— The Court 
 
 of Probate have all ihe powers of the Court of 
 Chancery to enable them to settle the accounts 
 of an estate. 
 
 Estate of Catherine McDonald, James, 342. 
 
 34. Probate Court— Power to grant li- 
 censes to sell on application of creditors— A 
 testator by a clause in his will devised and 
 bequeathed, from and after the death of his wife, 
 all his real and personal estate, to, and amongst 
 his sons, of whom M. was one, their heirs and 
 assigns, share and share alike. 
 
 M. died intestate, his mother was appointed 
 administratrix of his estate, and application was 
 made to the Court of Probate by the assignees of 
 certain of his judgment creditors, his personal 
 estate being sworn to be insufficient for the 
 payment of his debts, for license under sections 
 13 and 17 of the Probate Act (Revised Statutes, 
 2nd series. Cap. 130), to sell his interest in the 
 real estate of the testator. 
 
 Held, ;)€r Young, C. J., and Dodd, J., that the 
 granting of a license for the sale of real estate 
 under Revised Statutes (2nd series), cap. 130,, 
 sections 13 and 17, is discretionary with the 
 Court of Probate, and that discretion was rightly 
 exercised in the present instance by the refusal 
 of such license. 
 
 Per DeBarres and Wilkins, JJ., that the 
 Court of Probate had no power whatever to 
 grant such license. 
 
 In re Estate Michael O'Sulivan, 1 Old., 549. 
 
 35. Supreme Court lias Jurisdiction to 
 
 make foreign company subject of a winding- 
 up order — Requisites of order — Held hy 
 Smith, Weatherbe, Rigby, and Thompson, JJ., 
 that a company, though incorporated in d'reat 
 Britain, can be made the subject of a winding- 
 up order in the Supreme Court of Nova Scotia, 
 under the Winding-up Act of 1882 (Canada), 
 when the company is carrying on busincs-s in 
 Nova Scotia, and has its management here alto, 
 gether or in part. 
 
 Per McDonald, J.— The Court has jurisdic- 
 tion to make such an order when an Act of the 
 Provincial Legislature has conferred on the com- 
 pany the right to hold lands in Nova Scotia. 
 
 McDonald, C. J., dissenting, on the gi'ouud 
 that the Winding-up Act does not and could 
 not confrr jurisdiction over foreign companies. 
 
 Held, per McDonald C. J., ard McDonald, 
 Smith, and Weatherbe, JJ., that a winding-up- 
 order must name the permanent liquidator, and 
 could therefore only be made after notice to 
 creditors, contributories, &c. 
 
 Rigby and Thompson, JJ., dissenting. 
 
 In re Steel Company of Canada (Limitfd), 
 
 5R. &G., 17&49. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, reversing the judgment of the Supreme 
 Court of Nova Scotia, Fournier, J., dissmlinj 
 that 45 Vic, c. 23., was not applicable to such 
 company. 
 
 The Merchants' Ba7ik of Halifax v. Gillespie d al.,. 
 
 10 S. C. R.,312j. 
 5C. L. T.,'276. 
 
 36. Supreme Court In banco had Juris* 
 
 diction to inquire into objections taken on 
 criminal trials — Where in a case of felony ob- 
 jections were taken by the prisoner's Counsel, 
 in arrest of judgment, but overruled by the 
 Judge trying the cause, the Court in banco have 
 authority to inquire into the validity of those 
 objections. 
 
 Queen v. Kennedy, 2 Thorn., 203- 
 
797 
 
 JURISDICTION. 
 
 798 
 
 37. Supreme Court- Jurisdiction of, in; 
 
 attachment proceedings attacked on ground j 
 that property attached was not defendant's — | 
 Defendant applied to set aside a writ of attach- 
 ment, levy and sheriff's return on the ground 
 that this Court had no jurisdiction because the 
 property attached was not that of the defend- 
 ant, having been conveyed to a trustee, in trust j 
 for his wife some time previously. Affidavits 
 were read in reply to show that the trust deed 
 was made fraudulently and in contemplation 1 
 of insolvency. The rule was discharged with ' 
 
 rosts. ; 
 
 Thompson v. Ellix, 4 R. & G., 307. I 
 
 38. Supreme Court in banco— Jurisdiction 
 
 to hear appeals in insolvent debtor cases — 
 Defendant was imprisoned in the County Jail 
 under process issued out of the County Court 
 and detained under an order of Commissioners 
 for the relief of insolvent debtors. An appli- 
 cation was made to this Court in banco for a I 
 summons to have the prisoner brought up by 
 way of appeal. | 
 
 Held, that the Court had no jurisdiction to I 
 hear the case, not having met within ten days 
 from the date of the order from which the appeal 
 was sought. 
 
 Brookjiehl v. SymtH, 3 R. & G., 17 ; 
 
 2C, L. T.,601. 
 
 39. Supreme Court in banco no Jurisdic- 
 tion to hear a ease referred by consent before 
 conclusion of trial at nisi prius — A cr.usc was 
 tried at Sydney and not concluded when the 
 Court adjourned. A rule was then made, consen- 
 ted to by the counsel and attorneys of both sides, 
 ordering that, in addition to the evidence taken 
 before the Court, further evidence should be taken 
 at Sydney before a Judge or person named in 
 the rule, and at Halifax before a master, in the 
 manner set out in the rule, that all the evidence 
 should be tiled with the Prothonotary at Halifax 
 and tlie cause should be heard upon such evidence 
 before the Court sitting in banco at Halifax, and 
 that the Court should have power to refer any 
 matter of account in said cause to a master or 
 referee for his report, which report the Court 
 might confirm, reject or utilize, as it should see 
 fit, and enter up judgment for either of the parties, 
 and it was further ordered that the Court should 
 have power to make all and any orders, and do 
 all things necessary for the purpose of finally 
 disposing of the cause. 
 
 Hdd, that the Court had no jurisdiction to 
 hear the cause under the rule. 
 
 (Jishome V. Cape Breton Co. (Limited), 
 
 3R. &G.,27. 
 
 40. Supreme Court in banco no Jurlsdic* 
 
 tion to hear evidence submitted as special 
 case — A rule of Court was made by consent of the 
 parties, that the evidence should form a special 
 case to be submitted to the Court witii jKJwer 
 to draw inferences of fact and enter judgment 
 for either party for such amount as the Court 
 should determine, the right of appeal in either 
 to be the same as if a verdict or judgment were 
 given by a single J udge. 
 
 Held, that under this consent the Court had 
 no power to entertain the case. 
 
 Per McDonald, J. — That the Court would not 
 entertain the case, as there were conflicting state- 
 ments on issues involving the question of fraud. 
 Hoivard v. Lancanhire Inn. Co. , 
 
 2R. &G., ;m; 
 2C. L. T., 108. 
 
 41. Supreme Court- Jurisdiction by cer. 
 
 tiorari not taken away by enactment that 
 proceedings of inferior Court shall be Anal — 
 An enactment that proceedings of an inferior 
 Court shall be final does not take away the 
 jurisdiction of the Supreme Court to review 
 their proceedings under writ of certiorari. 
 
 Barnahy etal. v. Gardner el a/., James, 306. 
 
 42. Supreme Court— Jurisdiction by way 
 
 of certiorari — Section 53 of Chapter 129 Domin- 
 ion Acts of 1874 does not takeaway the jurisdic- 
 tion of the Supreme Court by way of certiorari. 
 Hawes V. Hart, 2 R. & G.,427 ; 2 C. L. T., 312. 
 
 43. Supreme Court— Jurisdiction in cases 
 
 of attachment — SheriflTs return — Where goods 
 were attached by Sheriff, and the return made 
 was that he had attached them as the goods of 
 the absent debtor, held, not to be a return 
 warranting the Court in assuming jurisdiction. 
 The Court requires that the return should state 
 positively, to cnal)le them to have jurisdiction, 
 that the goods attached are the goods of the 
 absent debtor. 
 
 Ratchford v. Chipman, 2 Thorn., 235. 
 
 44. Supreme Court no Jurisdiction on 
 
 appeal from an order made by County Court 
 Judge in aid of London Bankruptcy Court — 
 A County Court Judge was applied to, to act in 
 aid of, and as auxiliary to the London Bankrupt- 
 cy Court, in relation to property of an English 
 bankrupt situated in his district, and made an 
 onler accordingly. 
 
 Held, McDonald, C. J., dinnenting, that no 
 appeal would lie from such order, to the Supreme 
 Court, either under the Insolvent Act of Canada, 
 
799 
 
 JURISDICTION. 
 
 800 
 
 which had given certain {wwera to the Judge in possesses all tlie powers with reference to suits 
 reference to insolvents, or under the County in partition with whicli the Equity Court in 
 Courts Acts, inasmuch as his order was not made Jingland is invested. 
 
 by reason of any jurisdiction conferred by tiiose 
 A'as, but by reason of the Imperial Bankruptcy 
 Act which did not give such appeal. 
 
 Re Carvell, ex imrle Oliddon, 7> R. & (i., 410. 
 
 LeCaiu v. Honterman, 2 N. S. 1)., 41S. 
 
 50. Supreme Court- Power of, to amerce 
 
 counties— Neither the Dominion Acts of 186S 
 
 45. Supreme Court-Xo Jurisdiction to: «•'•'«>' ""'^''f 's'-^. '-''•46, nor 4th r..s., ch. 21, 
 
 deal with summary causes brought up by empower the Supreme Court to amerce a couii- 
 certiorari since the summary jurisdiction of ^Y ^or fliarges incurred in calling out the active 
 Supreme Court taken away— Militia, under the Dominion Act of 1873, ch. 46, 
 
 See CERTIORARI. ' ••" '!»«" "^ '•'"^• 
 
 lure Amercement ■ ''CajK Breton Co., 
 
 46. Supreme Court no Jurisdiction by -K- & (' . ii<> 
 
 appeal in cases appealed to County Court from ' 
 
 Justices of the Peace—On appeal to the County 61. Town Court Of TrurO — Jurisdiction 
 
 Court from a judgment and conviction by two ' of,— Ry an Act of the Provincial Legislature a 
 Magistrates, under the License Laws, the Coun- Town Court was constituted for the incorporated 
 ty Court Judge without trying the cause de Town of Truro, to be presided over by the Re- 
 7ioro, (juashed the conviction, on the ground that corder or Stipendiary Magistrate, the two offices 
 it was a conviction simply for violating the ^ being filled l)y the same persim. It was enacted 
 License Law, without stating the particular act that the Town Court shouhl have and possess 
 of violation. An appeal was granted to the all the powers in civil matters within the Muni- 
 Sujireme Court. cipality conferred upon one or more Justices of 
 
 Jft/d, that the judgnicui lirdow must be the Peace or Stipendiary or Police Magistrate liy 
 atbi lued, on the ground that the convicticm had an Act of the Province. The prisoner was con 
 rightly been quashed, and further that, the ; victed of a violation of the License Laws by 
 summary jurisdiction being abolished, the doci- selling intoxicating li<iuors contrary to law, as 
 
 for a third otfence, and while in jail was again 
 convicted of a fourth otfence, the summonses is- 
 94. suing out of the Town Court, and tlic exccutidMs 
 I in the form of 4th R. S., Chap. 7'», Schedule 1'. 
 being signed by the Stijjendiary Magistrate as 
 the presiding otHcer in that Court, 
 On a motion for a habean cm^nm, 
 H(l(l, that the matter came within the juris- 
 diction of the Town Court as above defined, ami 
 that the imprisonment was lawful, although the 
 execution specified no <lefinitc period. 
 
 In re Simon Frat(r, 1 R. & (i., ,T)4. 
 
 S^e HABEAS CORPUS, N 
 52. Verdict against flndings of Jury 
 
 sion of the County Court was final. 
 Weatherbe, J., (li^si'M/iinj. 
 
 Hose V. liurkc, 1 R. & (i. 
 
 4i. Supreme Court, no power under old 
 
 Act to reverse decision of County Court on 
 questions of fact — Lender sec. '2.> of the Amend- 
 ing County Courts Act of 187", cap. (i, the Court 
 has no juris<liction to reverse tlie decision of the 
 County Court Judge on disputed ((Uestions of 
 
 fact. 
 
 irier V. Let son, 3 R. & C, •-'99. 
 
 48. Supreme Court no Jurisdiction to 
 
 order judgment to be entered up in County 
 
 Court — The Court dismissed an appeal, for I Jurisdiction of Court in banco to set aside -In 
 irregularity in the form of the rule, and grante<l ' an action for maliciously procuring an execution 
 a rule directing the Clerk of the County Court to be i»-.;. ' against the plaintiff, the Judge 
 to enter up judgment in the County Court for put to the jury the (juestion whether the defen- 
 the plaintiff. On appeal from a decision dis- j dant issued the execution knowing or believing 
 charging a rule niti to set the judgment aside, j that notliing was due to him by the plaintill'; if 
 
 Hilil, that the onier of this Court for enter- 
 ing up judgment was in excess of jurisdiction, 
 and that the Clerk of the County Court had no 
 authority to enter up judgment. 
 
 Hiif'iii.-< V. Lyom, 3 R. k (J., 284. 
 
 49. Supreme Court -Power of, in partition 
 
 suits — The Supreme Court of Nova Scotia 
 
 not the verdict to be for the defendant. The 
 jury answered the (juestion in the negative, but 
 found a verdict for plaintiff'. The Judge on 
 circuit, on motion, ordered a verdict to be enter- 
 ed for defendant with leave to move. After 
 argument of tlie rule nini to set aside the verdict 
 for defendant. 
 
 Held, that there was no authority, after the 
 
801 
 
 JURISDICTION. 
 
 802 
 
 verdict for plaintiff was rendered, to enter 
 
 verdict for defendant, and that the Court in 
 
 banco had jurisdiction to grant a rule ntti to set 
 
 it aside. 
 
 McKay v. Woodill, 4 R. & G., 55. 
 
 63. Vice-AdmlraUy— Jurisdiction In action 
 
 for seaman's wages — The Admiralty Court has 
 no jurisdiction in •% suit to recover seaman's 
 wages, unless the sum claimed amount to at 
 least fifty pounds sterling. 
 
 Dale V. The Ship " Velocity," James, 390. 
 
 51. Tlce-Admlralty Court— Jurisdiction 
 
 in c?.^e of collision where neither vessels 
 owned in British possessions — The question of 
 jurisdiction was raised in a case of collision on 
 tiie ground that neither of the vessels was owned 
 in the British possessions. 
 ffeld, that the Court had jurisdiction. 
 
 The. Clementine, Y. A. D., i86. 
 
 35. Vice-Admiralty Court — Jurisdiction 
 
 in cases of collision in Halifax Harbor — 
 Where a collision occurred inside Halifax Har- 
 bor, and therefore within the body of the 
 County of Halifax, 
 
 Held, that under the Statutes, 24 Vic. , cap. 
 10, and 26 Vic. , cap. 24, the Court had full juris- 
 diction in the matter. 
 
 The Wavelet, Y. A. D., 34. 
 
 56. Vice*Admiralty Court -Jurisdiction — 
 
 The legislation of the Dominion Parliament 
 (.3I Vic. c. 8,8. 156), giving the Vice- Admiralty 
 Court jurisdiction in cases for the collection of 
 penalties for illegal distilling, is ultra inrei, and 
 tlic Vice- Admiralty Court, as an inferior Court, 
 may lie restrained by the Supreme Court by 
 wit of prohibition. 
 
 Atl'y-Gen'l of Canada v. Flint et al., 
 
 .3R. &0.,453. 
 Reversed on appeal— 5ee ADMIRALTY, 11. 
 
 57. Vice - Admiralty Court — Jurisdiction 
 
 of, in relation to bottomry bonds — 
 
 See SHIPPING. 
 
 58. Vice'Admiraity— Jurisdiction to enter- 
 tain claim for salvage— Where the vessel saved 
 was brought into port in Newfoundland and then 
 sold ; hut a portion of her materials was brought 
 to Ilalifax, and then proceeded against by two 
 of the salvors who had not been paid in New- 
 foundland, 
 
 ^e/d.that the Court had full jurisdiction, 
 salvage constituting a lien upon the goods saved. 
 The Flora, Y. A. D., 48. 
 2fi 
 
 59. Vice-Admiralty Court — Jorisdietloii 
 
 to entertain proceedings to recover penalty 
 for illegal distilling — The defendant and three 
 others, being discovered in the i:iegal distilling 
 of spirits, the materials and apparatus used by 
 them were seized. No claim having heeu put 
 in for them, they were condenmed, and proceed- 
 ings then taken to recover the penalties imposed 
 by the Act. The defendant appeared under 
 protest, denying the jurisdiction of the Court. 
 ffeld, that the Court had full jurisdiction in 
 the matter. 
 
 Qtieen v. Flint, Y. A. D., 280, 
 
 60. Vice-Admiralty — Jurisdiction of— 
 
 Special contract for seaman's wages, what 
 constitutes ; cannot be enforced in Vice-Admi- 
 ralty Court — Two out of three promovents 
 shipped at Bermuda on board the ship libelled, 
 a blockade runner, for the round voyage from 
 Bermuda to Wilmington, North Carolina, and 
 thence to Halifax, Nova Scotia. The remaining 
 promovent shipped at Wilmington in room of 
 one of the others. No ship's articles were signed, 
 but there was evidence to prove that the master 
 had contracted to pay to each of the promovents 
 certain specified sums, in three equal instalments. 
 The contract was absolute as to two of the 
 instalments, and as to the third, there was a 
 condition that it was to be paid only if the 
 claimants' conduct were satisfactory. 
 
 Held, (1.) That this was not an ordinary en- 
 gagement for seamen's wages, but a special con« 
 tract. 
 
 (2.) That previous to the Admiralty Court 
 Act of 1861, 24 Vict. ch. 10, the High Court of 
 Admiralty had no jurisdiction over such con- 
 tracts. 
 
 (3. ) That this Act did not extend to the Vice- 
 Admiralty Courts, nor were the provisions re- 
 specting special contracts, embraced in its tenth 
 section, extended to those Courts by the Act of 
 1863, 26 Vict. ch. 24, sec. 10. 
 
 (4.) That, although the commission formerly 
 issued to the Vice-Admiralty Judge empowered 
 him " to hear and determine all causes according 
 to the civil and maritime laws and customs of our 
 High Court of Admiralty of England," yet this 
 power, like some others assumed to be bestowed 
 by the commission, is frequently inoperative, 
 and that, therefore, this Court has no jurisdiction 
 in cases like the present. 
 
 Held, also, that, although the responderts 
 were bound to have objected to the jurisdiction 
 in limine, by appearing under protest, still, that 
 where the Court is of opinion that it has no 
 jurisdiction, it will not only entertain the 
 
803 
 
 JURY. 
 
 804 
 
 objection at the hearing, but is bound itself to 
 raise it. 
 
 The City of Petersburg, 1 Old., 814 ; 
 Y. A. D., 1. 
 
 Pleas of- 
 
 JVSTIFICATION- 
 
 See PLEADING. 
 
 JVBT. 
 
 1. Appeal cause— Jory ordered where 
 
 question of Araud — Jury granted in an appeal 
 cause upon the ground that the cause turned on 
 the question of fraud. 
 
 Skinner v. Latie, James, 183. 
 
 a. Conduct of— During a recess vhlch 
 
 occurred in the progress of a trial, after all the 
 evidence had been put in, but the closing 
 addresses of the Counsel not yet delivered, one 
 of the jurors was heard to say aloud: "The 
 plaintiff has got to get his pay and he will get it." 
 The verdict being in favor of plaintiff it was 
 sought to be set aside for misconduct on the part 
 of the juror. 
 
 Held, that looking at the circumstances under 
 which the remarks were made there was no 
 ground for disturbing the verdict. 
 
 Thedibeau v. Everett, 3 N. S. D., 318. 
 
 3. Conduct of—Jury lodging with one of 
 
 the parties — Conversing with — Where pending 
 the trial one of the jurors went to the defendant's 
 house and obtained a night's lodging and break- 
 fast there, and defendant was seen with the juror 
 on the following morning on the land in dispute, 
 and also treated another juror who happened to 
 come into the bar-room, where he was taking a 
 drink, but the defendant swore that he held no 
 conversation with either of the jurors as to the 
 merits of the cause and that he did not attempt 
 to influence them in any way in giving their 
 verdict, and there was no other objection to the 
 verdict. 
 
 Held, not sufficient tampering to justify set- 
 ting aside the verdict. Hill, J., dinsenting. 
 
 Gould v. Gould, 2 Thom., 87. 
 
 4. Conduct of— Separation— Conversation 
 
 '^Venire de novo — Even in a criminal case the 
 separation of the jurors and their conversation 
 with strangers will not necessarily destroy the 
 verdict. 
 
 Quaere, whether misconduct of the jurors, 
 when there is no other irregularity, would in 
 capital cases be a sufficient ground for dircniing 
 a venire de novo. 
 
 Queen v. Kennedy, 2 Thom., 203. 
 
 5. Defects in jury list— The omission of 
 
 the residences and occupations of grand jurors 
 
 in the list and in the panel held sufficient 
 
 grounds for quashing an indictment for felony. 
 
 Queen v. Belyea, James, '2*20 ; 
 
 Qu£en v. Murphy etal., James, 158. 
 
 6. Defects In Jury Ust— Omission of resU 
 
 dence and occapation— Effect of— It is a matter 
 for the discretion of the Court whether a defect 
 in the jury lists or in the panel, which has nvo 
 been made a ground of objection at the trial, is 
 a sufficient cause for setting aside a verdict, 
 The omission of the residences and occupations 
 of the jurors in the lists returned by the Justices 
 held sufficient ground for quashing indictments 
 found by the grand jury and for setting aside 
 special jury panels in causes not tried, but not 
 sufficient to disturb verdicts in causes where the 
 objection was not made at the trial unless it be 
 shown that injustice has been done. 
 
 Lessee of Seaman v. Campbell, James, 94. 
 
 7. Extra panel— Ordered by less than a 
 
 majority of the Judges — The prisoner was tried 
 by a jury called from an extra panel, the order 
 for which, made under 4th R. 8., cap. 92, see. 37, 
 was signed by only three Judges. 
 
 Held, that the order was valid although not 
 signed by a majority of the Judges. 
 
 Qtteen v. Quinn, 1 R. & G., 139. 
 
 8. Juror connected by marriage with one 
 
 of the parties — The fact that one of the jurors 
 was nearly connected by marriage with the plain- 
 tiff, was held to be no ground for setting aside a 
 verdict for plaintiff, where it was not disclosed 
 that the affinity continued at the time of trial, 
 or that there was any issue of the marriage still 
 living, or anything else from which it could be 
 inferred that the mistake was productive of any 
 injustice, and where it appeared that the defen- 
 dant was aware of the connection before the 
 trial was over, but took no exception till he found 
 that the verdict was against him. 
 
 Hart v. Pryor etal.,in.& C, 53. 
 
 9. Jurors— DlsquallUcatlon of, In certain 
 
 cases not removed by 5th R. S., c. 109— 
 
 Semble, that ch. 109 of the Revised Statutes, 
 removing certain disqualifications of "Judges, 
 Justices of the Peace, or persons empowered 
 
805 
 
 JUS TERTII, 
 
 806 
 
 by law to exercise judicial functions," does not 
 apply to jurors. 
 
 Ki7ig V. The Municipality of Kings, 
 
 7R. &G.,68; 
 7C. L. T„ 119. 
 
 10. Jaror related to party— The foreman 
 
 of a jury which found a verdict for defendant 
 was a cousin of defendant's wife ; this fact was 
 not known to the plaintiff till after the verdict, 
 though his attorney stated to defendant's attor- 
 ney before the jury announced their verdict* 
 tliat if it was for defendant it would be set aside 
 on account of the relationship. The Judge who 
 tried the cause was satisfied with the verdict 
 found. 
 The Court refused to disturb the verdict. 
 
 LeBtanc v. McRae, 2 R. & C, 240. 
 
 11. Juror related to party— Where a 
 
 verdict was found unanimously in favor of the 
 defendant in an action brought by the plaintiffs 
 as executors, but two of the jurors were sworn 
 to be related to the defendant as second cousins, 
 a fact which was, until several days after the 
 trial, unknown to the plaintiff, at whose instance 
 the action had been brought and who applied to 
 have it set aside, the Court set the verdict aside, 
 although the jurors in question were shown to 
 be equally related to the deceased whose execu- 
 tors had brought the action. 
 
 Lynds tt al. v. Hoar, 1 R, & C, 327. 
 
 la. Jury de medletate llngoe— Alien Jurors 
 
 —Aliens are not entitled, in this Province, in 
 auy case civil or criminal, to a jury de medietate 
 linyute. An alien may be a juror. 
 
 Queen v. Burdell and Lane, 1 Old., 126. 
 
 13. Jury In County Court— General ver- 
 dict instead of findings on specific facts sus- 
 tained— Irregularity— Acquiescence of parties 
 —On the trial of an action on the common counts 
 before a Judge of the County Court a jury was 
 called by consent for the purpose of having cer- 
 tain facts in controversy submitted to them. 
 The learned Judge instructed the jury that the 
 case was one of conflicting evidence, and that on 
 every material fact the plaintiff and defendant 
 differed. After referring particularly to the 
 facts in dispute he left the case, without any 
 objection made, entirely with the jury, who found 
 a general verdict in favor of defendant. 
 
 Held, Rigby and McDonald, JJ., dissenting, 
 that while the verdict should have been a finding 
 on disputed facts and not a general verdict for 
 the plaintiff or defendant, such general verdict 
 was only an irregularity and should not be 
 
 treated as a proceeding coram non judice. The 
 objection might be fatal in some cases, but in 
 the present case was only formal, as on the facta 
 found for defendant he was clearly entitled to 
 judgment, and all parties acquiesced in the man- 
 ner in which the case was put to the jury. 
 
 Rhoiles et al. v. Patrick, 6 R. & G., 233 ; 
 6 0. L. T.,445. 
 
 14. Jury ordered by Court on circuit 
 
 instead of by a Judge— 
 
 Held, that the objection that the application 
 for a jury was made to, and the order granted 
 by the Court on Circuit instead of a Judge of the 
 Court, was obviated by section 52 of chapter 70, 
 providing that proceedings should not be set 
 aside upon any mere technicality. 
 
 In re Nictanx and Atlantic Railway, 
 
 2 R. & G., 252 ; 
 1 C. L. T., 707. 
 
 15. Jury ordered In summary cause when 
 
 — The Court will order a jury in a summary 
 cause when there will be conflicting evidence. 
 
 Uniacke v. Gardner, James, 59. 
 
 16. Not ordered simply because there 
 
 will be conflicting testimony — The Court will 
 not order a jury, simply because the affidavit) 
 states that there will be conflicting testimony. 
 Swa7i v. Pryor et ai.,2 Thom., 13. 
 
 17. Setting down Jury cause for day— A 
 
 petit jury cause on the docket of causes for trial 
 may be set down on a particular day upon special 
 grounds, and where the circumstances are pecu- 
 liar. 
 
 Phailen v. Phailen, James, 112. 
 
 18. Sheriff party to suit- No ground of 
 
 challenge — It is no ground for challenging the 
 jury that the Sheriff is one of the parties to the 
 suit. 
 
 Harris v. McKenzie, 2 Thom., 242. 
 
 19. Special Jury— Setting down cause for 
 
 day — The Court will grant a special jury after 
 an ineffectual trial, upon cause shown. 
 
 The Court will, under peculiar circumstances, 
 order a special jury cause to be set down for a 
 particular day, upon special grounds shown. 
 
 Stalker tt ai. v. Wier et al., James, 107. 
 
 JUS TEBTO. 
 Deffendant can set up, whe?o plaintiff 
 
 out of poaBeision, under plea denying plain- 
 
807 
 
 JUSTICES OF THE PEACE. 
 
 808 
 
 tiflF's property — In an action of trover for 
 quartz, &c., defendant plewled, denying plain- 
 tiff's property in the goods, and gave evidence 
 that the property had been seized under execu- 
 tion against tlie plaintiff, and sold to a third 
 party. The plaintiff at the time of the alleged 
 conversion was out of possession. 
 
 Held, that as the plaintiff was out of posses- 
 sion, defendant could set up the jw tertii under 
 a plea denying the plaintiff's property. 
 
 Camphdl v. Yeadon, 5 R. & G., 212. 
 
 JUSTICES OF THE PEACE. 
 
 1. AffldaTlt for attactament-Before wtaom 
 
 to be made — Wliere the affidavit on which an 
 attachment was grounded was made before a 
 Justice of the Peace, and it appeared that a 
 Commissioner for tlie County was, at the time, 
 at his usual residence, and within three miles 
 of the place where the affidavit was made, the 
 proceedings were set aside. 
 
 Knodel v. lient, 2 Thorn., 149. 
 
 2. Appeal— Action against Justice for re* 
 
 fusing — Plaintiff brought an action against a 
 Magistrate for maliciously refusing an appeal ; 
 but, on his direct examination, stated merely that 
 he had demanded an appeal, and that nothing 
 further was said. Defendant swore that he did 
 not hear the appeal demanded. Plaintiffs attor- 
 ney swore that in the defendant's presence he 
 had asked plaintiff if he had not offered to make 
 the affidavit and demanded [an appeal, to which 
 plaintiff replied that he had done so. The jury 
 in answer to the question whether the Justice 
 had been required to prepare an affidavit said 
 " yes," and in answer to the question whether 
 the Justice had acted with malice replied, 
 "apparently:" and they found a verdict for 
 plaintiff. 
 
 A rule being granted the verdict was set aside. 
 McKenzie v. McKay, 3 R. & G., 122. 
 
 3. Appeal— Affldavit for— Power of Judge 
 
 of County Court to allow amendment of affi- 
 davit — The affidavit for appeal from the Magis- 
 trates' Court was defective, not being headed in 
 the cause, and the words " before me " being 
 omitted from the jurat. The Judge of the 
 County Court was satisfied that the defects 
 occurred through inadvertence, and without the 
 fault of the appellant, and without any inten- 
 tion to evade the requirements of the Statute, 
 
 but dismissed the appeal on the ground that he 
 had no power to amend the affidavit. 
 Held, that he had such power. 
 
 Woodii.'orth v. Iimi)!, 6 R. & G., 295; 
 6 C. L. T., 440. 
 
 4. Appeal-Certiorari-Deposit of traTel< 
 
 ling fees in Magistrates' Court, where summons 
 issued to be served out of County — Effect 
 of non-compliance with Statute — Construction 
 of 5th R. S., a 102, a. 2— R. S., c. 102, s. 2, 
 enacts that in all cases where the defendant does 
 not reside in the county where the summons ia 
 issued, it shall be incumbent on the Justice !«• 
 fore issuing the writ to require the plaintiff to 
 deposit witli him a sum equal to ten cents per 
 mile each way of the distance l)etween the real- 
 deuce of the defendant and the place of trial, 
 and in case such deposit shall not l)e actually 
 paid in as aforesaid, and indorsed on Ijoth 
 original and copy, the said writ and service 
 shall Ik) void. 
 
 Plaintiff issued a summons in the Magistrates' 
 Court against defendant to recover an amount 
 claimed to Ikj due for goods sold and delivered, 
 but omitted to deposit or to have indorsed on 
 tlie original and copy of the writ a sufficient 
 amount to cover defendant's travelling expenses, 
 as required by the Statute. The Magistrates 
 admitted that the amount was insufficient, but 
 permitted the plaintiff to cure the deficiency by 
 depositing a further amount, and proceeded witli 
 the trial. Defendant made no defence, ami 
 judgment was given for the plaintiff. 
 
 Defendant appealed, and in the County Court 
 application was made on affidavit for judgment 
 in his favor on the ground stated. The applica- 
 tion having been refused, the case was tried on 
 its merits, and judgment given for plaintiff. 
 This judgment was not appealed from, but a 
 case was stated by the learned Judge for the 
 opinion of the Court on the interlocutory appli- 
 cation as to the power of the Magistrates to 
 permit the defect in the summons to be cured at 
 the trial. 
 
 Held, per Weatherbe, J., that the question of 
 the insufficiency of the amount did not come 
 properly before the County Court Judge on the 
 appeal, but should have been brought up by 
 certiorari while the case was before the Magis- 
 trates. 
 
 Per Smith, J., that defendant should have had 
 judgment before the Magistrates. 
 
 Per McDonald, C. J., that the summons and 
 all the proceedings before the Magistrates were 
 void for non-compliance with the Statute, and 
 the appeal from the void proceedings could 
 not give the County Court Judge jurisdiction 
 
809 
 
 JUSTICES OF THE PEACE. 
 
 810 
 
 to adjudicate on the subject matter of the 
 causb. 
 
 Moffatt V. McRitchie, 7 R. & G., 228 ; 
 
 7 C. L. T., 322. 
 
 5. Appeal from Jndgment in an action 
 
 by a warden of river fisheries for recovery of 
 
 penalty for infringement of regulations made 
 
 by Sessions under cap. 95 Revised Statutes (Ist 
 
 scries), must be to Sessions. (See 16 Vic. , cap. 
 
 17, under which the proceedings in this case 
 
 were taken.) 
 
 Gowjk V. Morton, 2 Thorn., 10. 
 
 6. Appeal firom— Allowance of— When 
 
 one of the Magistrates before whom u cause was 
 tried stated that all the papers necessary for 
 perfecting the appeal had been filed, accepted 
 the bond, telling the party it was all right, the 
 Court allowed the appeal, though no affidavit 
 had been filed. 
 
 McKay v. McKay, 2 Thorn., 75. 
 
 7. Appeal from— Conviction— Amendment 
 
 of— In an appeal from a conviction for selling 
 li(luor, the Judge who tried the cause has power 
 to allow the conviction to be amended. 
 
 Taylor v. Marshall, 2 Thorn., 10. 
 
 8. Appeal from County Court to Supreme 
 
 Court in cause originating before Justices — 
 The Court declined to entertain an appeal from 
 the County Court in a cause originating in the 
 Magistrates' Court, where the rule for appeal 
 was taken upon filing security and not " granted" 
 by the Judge within the meaning of sec. 8 of 
 cap. 20, 1879. 
 
 Matheson v. McLean, 2 R. & G., 176 ; 
 1 C. L. T., 664. 
 
 9. Appeal from decision of Justices of tbe 
 
 Peace— Defendant was prosecuted under chap. 
 19, Rev. !St«ts. (.3rd Series), for a breach of the 
 law relating to the sale of intoxicating liijuors. 
 There was no actual service upon him of the 
 writ of summons, and the affidavit of the con- 
 stable verifying the return was informal in 1)eing 
 intituled with the surnames only of plaintiiT and 
 defendant. Defendant having been convicted 
 in his absence, appealed and filed the necessary 
 bond under the Statute. 
 
 Held, that when an appeal is ttiken and per- 
 fected from a decision of Justices of the Peace, 
 in a summary cause, the judgment below is 
 thereby ipso facto vacated, and the case stands 
 for a new trial. Also, that defendant having 
 appealed, and thus virtually appeared, and 
 having avoided the judgment below by having 
 
 taken an important step in the cause, it was not) 
 competent to him to repudiate the jurisdiction 
 of the Court below, on the ground of want 
 of personal service. Ha<l he wished to avail 
 himself of such an objection, he should not have 
 appealed, but should have sued out a writ of 
 certiorari. 
 
 On a second trial, no amendment adding or 
 substituting a new cause of action or ground of 
 defence will be allowed. 
 
 Per Wilkins, J., dinsenting. — A judgment 
 given as the judgment in this case was, forms 
 no exception to the privilege of appealing con- 
 ferred by the Statute, and to issue a certiorari 
 would have been unnecessary. Judgment by 
 default having been given, defendant, not having 
 1)«en duly summoned to appear, is entitled to an 
 appeal. The want of service of the summons 
 alone is ground for reversing the judgment 
 below. A dissatisfied party appealing from a 
 judgment so entered cannot be held to waive 
 his right to contest the validity of the judgment 
 not having had an opportunity of opposing the 
 claim which the judgment recognizes. 
 
 Hand V. Rockwell, 2 N. S. D., 199. 
 
 10. Appeal from Justice of the Peace- 
 Affidavit — The affidavit for appeal from a Jus- 
 tice of the Peace, in civil cases, must be made 
 before the Justice who tried the cause. 
 
 Curry v. Lecran, 4 R. & G., ,31. 
 
 11. Appeal from Magistrates' Court— Mis* 
 
 conduct of Magistrates — Affidavit for appeal 
 — Before whom made — Defendant demanded an 
 appeal from a judgment given against him by 
 two Justices of the Peace and tendered the 
 proper fees to one of the Justices for preparing 
 the statutory affidavit for an appeal. The af- 
 fidavit was prepared but was sworn to without 
 having been (signed, and the Magistrate at once 
 issued execution under which defendant was 
 arrested. 
 
 Defendant made an affidavit for appeal before 
 a Magistrate who had taken no part in the trial, 
 and the Judge of the County Court District No. 
 1, set aside the judgment of the Magistrates and 
 quashed the summons and all proceedings there- 
 under. Plain tiflf having appealed, 
 
 //eld, that the appeal must be allowed. Mis- 
 conduct of the Magistrates cannot give an appeal 
 independently of the Statute. 
 
 The Statute gives no authority to any Magis- 
 trate to prepare the affidavit other than the one 
 who has heard the cause. 
 
 Moir et al. v. Ramsay, 6 R. & G., 126. 
 
 12. Appeal flrom- None direct to Supreme 
 
 Coart — No appeal lies directly to the Supreme 
 
811 
 
 JUSTICES OF THE PEACE. 
 
 812 
 
 Court from an order of Justices for the removal 
 of paupers. Even in a regular appeal new evi- 
 dence cannot be taken in this Court. Construc- 
 tion of Rev. Stats. (2nd series), c. 89, sec. 14. 
 Overseers of the Poor for Oreti\fidd v. 
 Overaura of the Poor for Goahen, 
 1 Old., 695. 
 
 13. Appeal from — Objections by appel* 
 
 lant to the regularity of proceedings before Jus- 
 tices must be brought to the notice of the Court 
 during the first four days of the term, and before 
 the cause comes on for trial, 
 
 Oraham v. Lapierre, James, 139. 
 
 14. Appeal- Noii'Salt— If o wltnesies below 
 
 — The Court will not allow an appeal from a 
 judgment of non-suit in Justices' Court when 
 no witnesses have I>een produced by the plaintiff 
 on the trial below. 
 
 McCtdly V. Bamehill, Cochran, 81. 
 
 15. Appeal — None to Supreme from 
 
 County Court, when cause originates before 
 Justioes— Cases appealed from the Magistrates' 
 Court to the County Court cannot be brought by 
 appeal to the Supreme Court. 
 
 Cochr.in V. Larcom, 3 R. & C, 480. 
 
 16. Appeal — None to Supreme ttom 
 
 County Court in Magistrates' cases — The 
 Court will not hear an appeal from the County 
 Court in a cause originating in the Magidtrates' 
 Court. 
 
 Coolan V. McLean, 3 R. & C, 479. 
 
 17. Arbitrators— One, being a Justice, 
 
 may administer oath to others — The appoint- 
 ment of a Magistrate as an arbitrator will not 
 disqualify him for administering the oath of 
 office to the other two arbitrators. 
 
 I7i re Thomcts Kenny, 2 Thom., 14. 
 
 18. Assault, unproved or trifling— Appeal 
 
 — Plaintiff instituted an action under section 23, 
 cap. 147, 3rd Revised Statutes, before two 
 Justices of the Peace against defendant for an 
 assault, and the Justices on hearing the evidence, 
 dismissed his complaint, either deeming the of- 
 fence not proved, or so trifling as not to merit 
 punishment. Plaintiff thereupon appealed to 
 the Supreme Court, and the Judge presiding 
 at Annapolis dismissed his appeal, but gave him 
 a rule nisi to bring the case for argument before 
 the full Court. 
 
 Held, that in a case of tiiis nature, plaintiff 
 was not entitled to appeal from the decision of 
 the Justices of the Peace. 
 
 Construction of section 8 of chap. 1, 3rd Rev. 
 Stats. 
 
 Chesley v. Orassie, 1 N. S. D., 191. 
 
 19. Capias -Affldavit for— Capias Issued by 
 
 Magistrates set aside on the ground that it was 
 issued, and the defendant arrested under it, 
 without an affidavit of the grounds of plaintiff's 
 belief, as required by chapter 22 of Acts of 1879, 
 sec. 3. 
 
 McLean v. McKay, 1 R. & O., 383. 
 
 See, also, ABBEST. 
 
 20. Certiorari— Notice to Justice— 13 Geo. 
 
 2, c. 18 — The certiorari was attacked on tlie 
 ground that no notice had been given to the 
 Magistrate as required by Imperial Statute, 1,3 
 Geo. II., cap. 18, but no such ground was taken 
 in the rule. 
 
 Held, that the ground could not be taken at 
 the argument. 
 
 Quaere, whether the rule requiring notice ap- 
 plied to this case where the Justice acted as a 
 special statutory Court, and not simply as a 
 Justice of the Peace. 
 
 Tupper v. Murphy, 3 R. & G., 173. 
 
 21. Certiorari -Notice, &e. — k writ of 
 
 certiorari to remove a prosecution for selling 
 liquor contrary to the provisions of the Pro- 
 vincial License Act, from the Magistrates' Court 
 into the County Court, was quashed by a Judge 
 of the latter Court, on the grounds — Ist, that 
 the parties applying for the writ did not give tiie 
 six days' notice of their intention to the Justices 
 required by 13 Geo. II., c. 18, s. 5 ; and 2nd, 
 because they did not swear that they did not 
 sell liquor contrary to law. 
 
 An appeal from the decision of the County 
 Court Judge was dismissed with costs. 
 
 McDonald v. Jionan, 7 R. & G., 25. 
 See, also, CEBTIOBABI. 
 
 22. Clerk of Licenses -BIgbt to compen- 
 sation under 4th R. S., c. 75, s. 28, for costs- 
 No right to, where Justices no jurisdiction- 
 Plaintiff, as Clerk of License for one of the dis- 
 tricts of the County of Cumberland, brought an 
 action before two Magistrates to recover a penalty 
 for the illegal sale of intoxicating liquors. The 
 Magistrates rendered a decision in plaintiff'sfavor 
 which was quashed in the Supreme Court, where 
 it was brought by certiorari, for want of juris- 
 diction, on the ground that one of the Magis- 
 trates was related to plaintiff. The Municipal 
 Council having refused to allow plaintiff his 
 costs, application was made under cap. 75, 
 
813 
 
 JUSTICES OF THE PEACE. 
 
 814 
 
 Revised Statutes, 4th series, sec. 28, to amerce 
 the county. 
 
 He.ld, that there being no jurisdiction in the 
 Justices to issue process or try the cause, plain- 
 tiff ha<l acquired no right under the Statute to 
 be compensated for his outlay. 
 Smith and Thompson, JJ., dUsenling. 
 Jackson v. The Municipality of Cumberland, 
 6R. &G., 119; 6C. L. T., 442. 
 
 93. ConTletlon— Appeal to Connty Court- 
 None thence to Supreme Coart— A conviction 
 by a .Stipendiary Magistrate was removed by 
 appeal to the County Court and there quashed. 
 
 Held, that no appeal .ay to the Supremo Court 
 as none was expressly given by the Act creating 
 tiie offence and giving the appeal to the County 
 Court, although the Acts creating and organ- 
 izing tlie County Courts gave a general appeal to 
 the Supreme Court. 
 
 McDonald v. McCtiixh, 5 R. & G., 1. 
 
 24. CoDTlctlon— By-law must be set out 
 
 in conviction — Grounds in rule — Defendant 
 was convicted of allowing iiis cattle to go at large 
 in the township of Cornwallis. 
 
 //■('/(/, that the oonviction was bad in that it 
 did not set out the by-law or ordinance of the 
 Sessions creating the offence ; and that the ob- 
 jection was covered by the ground taken in the 
 rule that the conviction did not show any offence 
 for which it could lawfully be made. 
 
 Starr v. //ealea, 4 R. & G., 84. 
 
 25. ConTlction — Essentials omitted— In- 
 formation and warrant cannot be looked at to 
 see that an offence has been committed — A 
 
 conviction for selling intoxicating liquor con- 
 trary to the provisions of the Canada Temper- 
 ance Act contained no reference to the Act, did 
 not show where the offence was committed, and 
 merely adjudged that the defendant pay $100 
 for selling intoxicating liquors. 
 
 Hdil, bad. 
 
 Tlie information and warrant cannot be looked 
 at to see that an offence has been committed. 
 
 Woodhckv. Dickie, 6 R. & G., 86 ; 
 6C. L. T., 142. 
 
 26. ConTlction for fonrth oflTence without 
 
 notice— Previous conviction — Defendant hav- 
 ing been summoned for selling intoxicating 
 liquors without license made a written confession, 
 upon which the Justices inflicted a penalty upon 
 him as for a fourth offen>.;e. Defendant was not 
 present at the trial, nor was any intimation given 
 him of any intention to proceed against him 
 except as for a first offence. The original con- 
 
 victions in the three previous actions against the 
 defendant were produced and read at the trial, 
 but no other evidence was offered. 
 
 Held, on certiorari, that the conviction should 
 be quashed. 
 
 McOillivray v. McDonald, 3 N. S. D., .320. 
 
 27. Conviction for tiiird oflTence— Defiend- 
 
 ant was convicted in her absence of a third 
 offence against the Canada Temperance Act, 
 1878, and was fientenced to imprisonment for 
 sixty days in the County Jail at Annapolis, and 
 to pay the sum of 89.33 costs to the prosecutor, 
 and in default to be imprisoned for a further 
 term of fifteen days. 
 
 Held, that the Magistrate had exceeded his 
 jurisdibtion in making the conviction in the 
 absence of the defendant, and that the convic- 
 tion must therefore he set aside. 
 
 Alw, that under the Canada Temperance Act, 
 sec. 107, it is imperative upon the Magistrate to 
 adopt the procedure specially made for cases 
 under the Act, the express provisions in that 
 section taking the matter out of the ordinary 
 course laid down in the Summary Convictions 
 Act. 
 
 Queen v. Sailer, 20 N. S. R., (8 R. & G.), 206 ; 
 
 8 C. L. T., 380. 
 
 38. Conviction for violation of City Cbar< 
 
 ter — Alternative punishment — Penalty— How 
 recovered — The defendant having been con- 
 victed of a violation of the charter of the City 
 of Halifax, Acts 1864, chapter 81, section 227, by 
 keeping a disorderly house was adjudged to pay 
 the sum of $40 and " if the said sum be not paid 
 forthwith, to be imprisoned in the city prison for 
 the apace of ninety days." 
 
 Held, that the alternative punishment im- 
 posed was authorized by section 1.39 of tlie Act ; 
 also, that under the Acts of 1882, chapter 25, 
 section 19 the penalty was clearly recoverable in 
 the name of the City of Halifax before the 
 Stipendiary Magistrate at the Police Court. 
 The City of Halifax v. Brown, 
 
 6 R. &G., 103; 
 
 6 C. L. T., 144. 
 
 29. Conviction— Irregularities in— In an 
 
 action for breach of the License Laws, where 
 the plaintiff is described in the writ as clerk of 
 the County of Colchester, and he is only clerk 
 for one of the districts therein, and where the 
 process was served by a person not a sworn con- 
 stable, and the conviction did not follow the 
 exact words of the Statute, 
 
 Held, not sufficient irregularity to quash the 
 
 proceedings. 
 
 McCully V. McKay, Cochran, 82. 
 
815 
 
 JUSTICES OP THE PEACE. 
 
 816 
 
 80. Conviction under License Law void 
 
 where defendant not present at the trial, &c., 
 and no affidavit of service — The Court made 
 absolute a rule nini for a habean corprm where it 
 appeared that the prisoner had been arrested ou 
 an execution for penalties under the License 
 Laws, the Justice having proceeded with the 
 cause in the absence of defendant without an 
 affidavit of the service of the summons, although 
 on the hearing of the rule nxKi it was made to 
 appear that the summons had actually been 
 served. 
 
 In re Donald McEacheni, 1 R. & G., 321. 
 
 31. ConTiction— Offence In, different fh>m 
 
 that charged in summons — An action was 
 brought against the defendant, in the*pGiice 
 Court, at the suit of the City of Halifax, for an 
 alleged violation of a city ordinance in keeping 
 a marine and junk xlore without license there- 
 for, and, after trial, the defendant was con- 
 victed of keeping a rwj and junk nhop without 
 license. 
 
 Held, per Weatherbe and Rigby, J J. — That 
 the conviction was bad in that the offence for 
 which the defendant was convicted was different 
 from that charged in the summons. 
 
 Per Rigby, J. — That the criminal side of the 
 City Court had jurisdiction over the subject 
 matter, and could afford complete redress, and 
 that the prosecution was wrongly instituted in 
 the Police Court, at the suit of the city. 
 
 The City of Halifax v. O'Connor, 
 
 3R. &G., 190. 
 
 32. Criminal Information against— Notice 
 
 of — A Magistrate is entitled to six days' notice 
 of a motion for a criminal information against 
 him for a violation of his duty. 
 
 The motion must be made in sufficient time to 
 enable the party accused to answer the same 
 term. 
 
 Queen v. Huestix, James 101. 
 
 33. Disqualification by Interest— Appeal 
 
 from order of Sessions of Kings County setting 
 aside an order of settlement by Overseers of 
 Poor for Granville, after notice of preliminary 
 objection by the latter. 
 
 Per Sir William Young, C. J. — Evidence hav- 
 ving been given before the Court on the prelimi- 
 nary objections in the notice in proof, that sev- 
 eral Justices of the Peace residing in the Town- 
 ship of Cornwallis, and liable to be assessed 
 therein for the support of the poor, took part 
 in the appeal against the order of the Overseers 
 for Granville, and voted on the determination 
 thereof, and it appearing to this Court that in 
 
 consequence of such interposition the Court of 
 Sessions was not duly constituted for the hear- 
 ing of such appeal, decision therein is horvhy 
 reversed and judgment given for the respond- 
 ents therein. 
 
 1' corn's Legal Maxims, 118, 127; 1 Q. B.,267 ; 
 6Q. H.,75.3. 
 
 OvemeerM of Poor for Comwallin v. Oversten 
 of Poor for GranviUe. Unreported, 1S71. 
 
 34. Disqualification by Interest- The de* 
 
 fendant was convicted before F. A. Laurence, 
 Stipendiary Magistrate presiding in tlie Town 
 Court of Truro, of selling intoxicating liijuon) 
 contrary to law. The Stipendiary Magistrate 
 was a ratepayer of the Town and received a tixc<l 
 salary as Stipendiary, payable out of the funds 
 of the Town to which half the penalty imimsed 
 became payable. 
 
 Held, that the Magistrate was disqualified liy 
 interest from acting in the matter. 
 
 Tupper V. Murphy, 3 R. & G., 173. 
 
 35. Disqualification by relationship -Con. 
 
 viction quashed — Conviction for cruelty to 
 animals quashed, one of the Justices being the 
 father of the complainant. 
 
 In re D. Bary Hobnan, 3 R. & C, 375. 
 
 36. Execution— Last cow cannot be taken 
 
 — The last cow cannot be taken on an execution 
 issued out of the Magistrates' Court. 
 
 McLean v. Watson et al., 2 Thorn., 406. 
 
 37. Fine and imprisonment In alternatlre 
 
 — Plaintiff was charged before the Stipendiary 
 Magistrate for the City of Halifax vt itli lewd 
 conduct and keeping a room or house of prosti- 
 tution, and was lined $50, and, in event of non- 
 payment, ordered to be imprisoned two months. 
 There was evidence that the Magistrate ordered 
 him into custody, where he remained till the 
 fine was paid, but this was not put to the jury. 
 
 Held, per McDonald, C. J., and McDonald, J., 
 that the Magistrate was not liable to an action 
 for false imprisonment. 
 
 Per Rigby and Smith, JJ.— That the convic- 
 tion in the alternative was bad, and the im- 
 prisonment thereunder mdawful. 
 
 Marter v. Pryor, 4 R. & G., 498. 
 
 38. Jurisdiction— Information andwar> 
 
 rant must show facts giving jurisdiction- 
 Constable — In an action for the conversion of a 
 quantity of intoxicating liquors, the defendant, 
 P., justified as a constable, acting under a 
 warrant purporting to have been issued by a 
 Justice of the Peace under the provisions of the 
 
817 
 
 JUSTICES OF THE PEACE. 
 
 818 
 
 Canada Temperance Act, 1878, and the defen- 
 dant M. as his assiBtant. 
 
 The facts necessary to give jurisdiction did 
 not appear cither in the information or warrant, 
 and the warrant was issued by one Justice, con- 
 trary to section 108 of the Act. 
 JIM, that the conviction was bad. 
 AIko, that the constable being a trespasser, 
 his assistant couhl not justify under him. 
 
 Nothing will be intended in favor of the juris- 
 diction of an inferior court. 
 
 Oaltihtw V. Ptttmon t< a/., 20 N. H. R., 
 
 (8R. &«.), 222; 
 8 C. L. T., 397. 
 
 39. Jurisdiction-Right Of Supreme Court 
 
 to look at evidence to determine jurisdiction 
 below — Defendant was convicted l)efore the 
 Stipendiary Magistrate for the Police District of 
 Yarmouth of having unlawfully sold intoxicating 
 liquor contrary to the provisions of the Canada 
 Ttmpwrance Act, 1878. A writ of certiorari 
 having issued, the Magistrate sent up the min- 
 utes of the evidence taken before him as part of 
 his return, instead of returning the facts. 
 
 Hdd, following Hawen v. Hart, 6 R. & CJ., 42, 
 that the evidence being liefore the Court it might 
 be looked at to determine the question of juris- 
 diction. 
 
 Queen v. McDonald, 7 R. & G., .3.36 ; 
 7 C. L. T., .376. 
 
 10. Mandamus to Justices, £c.— Canada 
 
 Temperance Act— Proclamation of— Applica- 
 tion was made to the Court for a writ of man- 
 danuis to compel two Justices of the Peace for 
 tlie County of Cumberland to issue a warrant 
 against defendant for a violation of the Canada 
 Temperance Act, 1878. 
 
 The Justices had declined to issue the warrant 
 on the ground that the notice to the Secretary 
 of .State referred to in sections 5 and 6 of the 
 Act, and recjuired to be filed in the office of the 
 Sheriff or Registrar of Deeds of or in the 
 County, was not regularly filed, there being two 
 Registrars of Deeds in the County of Cumber- 
 land, one at Amherst and one at Parrsboro, and 
 tlie notice having been deposited only with the 
 former, as a consequence of which the Justices 
 considered that the subsequent proceedings were 
 irregular and that the Act was not in force in 
 the County. 
 
 The proclamation having issued and the elec- 
 tion having taken place and resulted in the 
 adoption of the Act, 
 
 Hdd, that as the effect of going behind the 
 election would be to create difficulties and mis- 
 chief, the language of the Act must be regarded 
 
 as directory and not mandatory, and that the 
 mandamuH applied for must issue. 
 
 Per McDonald, C. J., and Ritchie, J.— That 
 the (Governor in Council being constituted the 
 judicial authority to determine whether the pre- 
 liminaries directed by the Act had been complied 
 with, and having determined in the affirmative 
 and issued the proclamation, the regularity of 
 the preliminary proceedings could not be ques- 
 tioned. 
 
 iimen v. Hick^, 7 R. & G., 89 ; 
 7 C. L. T., 14.3. 
 
 41. Record in Police Court— What sufll- 
 
 cient — 
 
 Hdd, that the following record of the Police 
 Court was sufficient evidence of the termina- 
 tion of the proceedings: "J. J. Backstrom, 
 charge, stealing two rings (pros. J. Beck) ; dis- 
 charged." 
 
 Bachitrom v. Beck, 5 R. & G., 538. 
 
 42. Road— laying out of— Freeholders - 
 
 Three Magistrates, forming a part of the Court 
 of Sessions, by whom the return of a precept 
 issued under cap. 62 of the Revised Statutes, 
 3r<l series, for laying out a road, is to be decided, 
 are not the three disinterested freeholders con- 
 templated by that Act. 
 
 Queen v. Chifrman, 2 Thorn., 292. 
 
 43. Rule to compel Magistrate to act— 
 
 Ruleapplied forunder4th R. S., c. 112, sec. 13, to 
 compel a Stipendiary Magistrate to make an 
 order for the commitment of defendant under 
 Dominion Act of 1869, c. 20, sec. 25, for not pro- 
 viding necessary food, etc., for his wife, refused 
 on the ground that the] Justice in declining to 
 make the order exercised a judicial discretion. 
 Queen v. Shortis, 1 R. & (i., 70. 
 
 44. Stipendiary Magistrates — Act creat- 
 ing not ultra r^re«— Druggist selling intoxicat- 
 ing liquors — Defendant was convicted liefore the 
 Stipendiary Magistrate for the Police Division 
 of Yarmouth of selling intoxicating li(]Uors with- 
 out license, and appealed to the County Court, 
 contending that the Stipendiary Magistrate had 
 no jurisdiction, as the Act for appointing Stipen- 
 diary Magistrates and thus creating a Court was 
 ultra viren ; that there had been no statement of 
 claim filed before the issue of the writ as provid* 
 ed by 4th R. S., cap. 91, sec. 3, and that he was 
 justified in selling liquors to be used medicinally 
 by virtue of his being a licensed druggist, 
 although no appointment had been made by the 
 Sessions under 4th R. S., cap. 75, sec. 41. The 
 sales were made by the defendant and his cleric 
 
819 
 
 JUSTICES OF THE PEACE. 
 
 820 
 
 indiaoriminately and without a doctor'* pre< 
 acription. 
 
 The judgment of the County Court, diimiu- 
 ing the appeal, waa affirmed, with costs. 
 
 Gardner v. Parr, 2 R. & O., 225 ; 
 1 C. L. T., 710. 
 
 45. Stipendiary Magtitnte held within 
 
 13 Geo. 2, 0. 13, ■. 5— Defendant waa convicted 
 before the Sti{iendiary Magistrate for Cornwaliia 
 Police District of a violation of the Canada 
 Temperance Act, 1878, and the conviction 
 having been brought up by certiorari, the Court 
 waa moved to aet the conviction aaide on the 
 ground that tbe Act waa not in force when it 
 waa made. 
 
 The order for the ceWiorart waa not moved for 
 until after the lapse of twenty-two months from 
 the date of the conviction. 
 
 Held, that in making the conviction the Sti- 
 pendiary Magistrate waa exercising the f unctiona 
 of a Juatice of the Peace, and consequently that 
 the Imperial Act, 13 (Jeo. 2, c. 18, a. 5, limiting 
 the granting of the writ of certiorari to six 
 months after the date of the conviction, applied. 
 The motion waa refused with costs and a proce- 
 dendo ordered. Rigby, J., dissenting. 
 
 The question was not raised whether the Act 
 of 13 Geo. 2 was in force in this Province, but 
 merely whether the Stipendiary Magistrate was 
 within the Act. See Queen v. Porter, 20 N. S. R., 
 
 Queen v. McFadden, 6 R. & G., 426 ; 
 6 C. L. T., 538. 
 
 46. Stipendiary Magistrate— Jurisdiction 
 
 concurrent, with two Justicea— The jurisdiction 
 
 of the Stipendiary Magistrate under 3rd Revised 
 
 Statutes, <:hapter 75, is concurrent only with 
 
 that of two Justices of the Peace and not 
 
 exclusive. 
 
 Anderson v. Mason, 1 N. S. D., 1 ; 2 Hd., 36ft. 
 
 47. Stipendiary Magistrate — Seamen's 
 
 wages — Jariadiction in actions for — What 
 neceasary to show to give jariadiction — Plain- 
 tifif contracted with one Feltmate, who professed 
 to be the owner of a vessel, to sail her as master 
 at a stipulated rate of wages. After the lapse 
 of six moriths Feltr.iate, who had up to that 
 time been on board, left the ship, and plaintiff 
 discovered that he waa not the owner, the poa- 
 eeasion of the ship having been demanded by the 
 deferdant, the real owner. Plaintiff then sued 
 defendant for wages as master before the .Sti- 
 pendiary Magiatrate under the Canadian Statute 
 of 1873, cap. 129, aeca. 52 and 59, which enable 
 a master to aue for wages due him, not exceeding 
 f200. 
 
 Held, that the Stipendiary had no juriadiction, 
 and that the judgment could be reviewed on 
 certiorari. 
 
 McDonald, C. J., and Rigby, J., disscntinr). 
 
 Per Weatherbe, J. — That the oaco came within 
 the principles aa to a jurisdiction given to try 
 cases l)etween persons of a specified class or 
 classes, and the Magiatrate had no evidence of 
 either of the two claaaea auing and being sued 
 respectively in this cane 
 
 Hawes v. Hart, 6 R. & O., 42 ; 
 6 C. L. T., 140. 
 
 48. Stipendiary Magistrate who Is also a 
 J. P. can act aa such under Canada Temper- 
 ance Act— The Stipendiary Magiatrate of New 
 Glasgow sat aa a Juatice of the Peace with 
 another Juatice to try a caae under the Canada 
 Temperance Act, which provides that triala may 
 be had before a Stipendiary Magistrate or any 
 two other Justicea of the Prace for the County. 
 
 Held, that no disqualification waa intended 
 by the word " other," and that the conviction 
 waa good. 
 
 Weatherbe, J., dubitante. 
 
 Queen v. Graham, 6 R. & G., 45.); 
 6C. L. T.,537. 
 
 49. Sammons— Direction of- Jurisdiction 
 
 of Stipendiary Magiatrate concurrent— Tlie 
 directing of the writ in a suit before a Stipen- 
 diary Magiatrate for seaman'a wages, to any of 
 the conatablea of the county, instead of to tlie 
 sheriff or his deputy, ia not a nullity, but a mere 
 irregularity, which ia waived by appearance. 
 
 The jurisdiction of the Stipendiary Magistrate 
 under 3rd Revised Statutes, c. 75, is concurrent 
 only with that of two Justicea of the Peace and 
 not excluaive. 
 
 In this case the writ waa signed by and made 
 returnable liefore the Stipendiary Magistrate, 
 but two Justicea of the Peace were substituted 
 for him on the trial by the request of the defen- 
 dant. 
 
 Held, that the irregularity, if any, was cured 
 by the assent of the defendant. 
 
 Construction of 3rd Revised Statutes, cap. 75, 
 sec. 25, and of Provincial Acta of 1865, cap. 1, 
 sec. 13. 
 Anderson v. Mason, 1 N. S. D., I ; 2 Old., 369. 
 
 50. Snmmons— Indorsement— Act of 1865, 
 
 c. 1, 8. 5, construction of— A Magistrate's sum- 
 mons not indorsed with the notice required by 
 the Provincial Act of 1865, chap. I, sec. 6, is 
 abaolutely void. 
 
 McDonald v. Mills, 2 Old., 165. 
 
821 
 
 KINGS COLLEGE. 
 
 822 
 
 51. Sammont tuoed br two JmUcm— 
 
 Tried by one of theie and a third Juitioe— 
 Conviction bad— Where a aummons for aelling 
 liijuor contrary to law waa isaued by two JuaticeN 
 of the Peace, and the cause tried before one of 
 them and a Juatice who had not aigned the 
 aummona, 
 Held, that the conviction muat lie aet aaide. 
 Weeks v. Bonham, 2 R. & C, 377. 
 
 53. Htlpendiarj Maglatrate-Jnrisdictlon 
 
 —The defendant was brought before the Stipend- 
 iary Magistrate for the County of Halifax, and 
 tried and committed for an assault on the high 
 soas. The trial and conviction took place at the 
 office of the Stipendiary Magistrate in the City 
 of Halifax, which waa outside the limits of the 
 County. 
 
 HM, that the conviction having been made 
 outside the territorial limits of the Magistrate's 
 jurisdiction, was bad. 
 
 Quaere, whether if made at the dwelling house 
 
 «f the Magistrate, though outside the limits of 
 
 his jurisdiction, the conviction might have been 
 
 covered by the Imperial Act, 9 Geo. 1, cap. 7. 
 
 Queen v. Hwjhes, 5 R. & G., 194. 
 
 53. Summons — Want of notice on — 
 
 Waiver — The objection to the want of the 
 notice on a Magistrate's summons required by 
 the Provincial Act of 1865, cap. 1, sec. 6, is 
 waived by the defendant when he goes into his 
 evidence at the trial before the Magistrate. 
 
 Belloni v. Murphy, 2 Old., 166. 
 
 54. Warrant — Execution of — Action 
 
 against constable— No action lies against a 
 constable for the execution cf a warrant, how- 
 ever defective, where the Magistrate issuing the 
 warrant has jurisdiction. 
 
 McGregor v. Patterson, 1 Old., 211. 
 
 5a. Warrant— Protection under— Execu< 
 
 tion substituted for warrant — The Provincial 
 Statute, .34 Geo. 3, c. 15, protecting officers and 
 others, their assistants, acting under the warrant 
 of a Justice, extends to and includes them, 
 "'hen acting under an execution substituted for 
 such warrant. 
 
 Seaman, 2nd, v. DeWolf, 1 Thorn., 193. 
 
 56. Witness, arrest, Ac— Plaintiff was 
 
 summoned to appear as a witness for the prose- 
 cution on the trial of an information for a 
 violation of the Canada Temperance Act of 1878. 
 He was served with the summons, and was paid 
 the regular fees for travel and attendance, but 
 disobeyed the summons and made no excuse. 
 The Magistrate, before whom the information 
 
 waa laid, iaaued four warrants in aucceaaion to 
 have plaintiff arreated and brought before him 
 to teatify, and adjourned the hearing of the 
 cauae from time to time for that purpose. Plain- 
 tiff evaded arrest under the first three warrants, 
 but waa arretted under the fourth. Having 
 eacaped, he waa re-arreated by defendanta, who 
 gained acceaa to a houae in which he had taken 
 refuge, by ra' ug a window. On hia refuaal to 
 give bail, hr waa placed in jail. 
 
 Held, (1.) That aa the Magistrate had juris- 
 diction to enter on the inquiry aa to the fact of 
 the proclamation of the Act, and whether licenses 
 were outstanding or not, he had authority to 
 compel the attendance of witnesses. 
 
 (2. ) With regard to defendants opening the 
 window and entering the house to make the ar- 
 rest, (a.) That the prosecution being a crimi- 
 nal proceeding, the warrant was not subject to 
 the limitations which attach to civil process, 
 but had many of the characteristics of an attach- 
 ment for which it was a substitute, (b. ) That 
 the evidence showing a previous arrest and an 
 escape, the defendants might lawfully enter the 
 house in fresh pursuit. 
 
 (3.) That the placing of the plaintiff in jail 
 under the circumstances was justifiable. 
 
 (4.) That section 46 of the Summary Con- 
 victions Act is not intended to prevent more 
 than one adjournment, or, if so, the plaintiff 
 could not take the objection. 
 
 Messenger v. Parker et al,, 6 R. & G., 237 ; 
 
 6C. L. T.,444. 
 
 KING'S COLLEGE. 
 
 1. Dismissal of a Professor— Powers of 
 
 the Board of Governors — Powers of the visi- 
 tor — An application was made for a mandamus 
 to compel the governors of King's College, 
 Windsor, to restore W. E. W. a professor of 
 the College, to certain offices from which he had 
 been dismissed for having published in a public 
 newspaper, a letter "incompatible with the 
 relation of a professor to the governing body, 
 and the superior officers of the university and 
 manifesting " a contempt of authority likely to 
 lead to subversion of discipline, &c. The college 
 was incorporated under an Act of the Legislature 
 of Nova Scotia in 1789, and a charter was ob- 
 tained from the Crown. Thirteen years later 
 letters patent were issued by the Crown, appoint- 
 ing the Bishop of Nova Scotia visitor of the 
 college. In 1853 a Provincial Act was passed 
 repealing the former Act and re-appointing and 
 re-incorporating the Board of Governors, giving 
 
828 
 
 LANDLORD AND TENANT. 
 
 824 
 
 them power to make laws and ordinances for the 
 regulation and management of the college, and 
 providing that the Bishop of Nova Scotia, for 
 the time being, should be ex officio a Governor 
 of the college. President of the Board, and 
 visitor. 
 
 By the original Act an annual charge was 
 made upon the revenue of the Province for the 
 purpose of purchasing lands and erecting build- 
 ings, and certain public officials were made ex 
 officio members of the Board of Governors. 
 
 No notice was given to the professor of the 
 proceedings which terminated in the sentence of 
 removal. 
 
 The affidavit upon which the application for 
 mandamus was made was headed "In the mat- 
 ter of an application intended to be made to the 
 Supreme Court for a mandamus," etc.. 
 
 Held, per Thompson and Rigby, JJ., and 
 McDonald, C. J., that the mandamus should 
 issue ; that the professor was entitled to notice ; 
 that the College being a public corporation estab- 
 lished by public statute and the visitor being 
 deprived of the power to dismiss, the wide range 
 of powers incident to the office of visitor at 
 common law were not conferred upon him, and 
 the Court therefore had power to hear the 
 motion ; that the office of professor was one in 
 relation to which mandamus would lie. Also, 
 that the heading of the affidavit upon which the 
 application was made was mere matter of de- 
 scription, and was distinguishable from the 
 heading of the affidavit in /n re Peter Ross, 
 2R. &C., 596. 
 
 Weatherbe and McDonald, JJ., dinsented on 
 the ground that the sole appeal from the decision 
 of the board was to the visitor, and the latter 
 on the further ground that tl^e heading of the 
 affidavit was bad. 
 
 He Wilson, 6 B,. &G., 180; 
 6C. L. T.,447. 
 
 2. Grant to— Where a grant was made 
 
 to " The Governors, President and Fellows of 
 King's College, at Windsor, in the Province of 
 Nova Scotia," and an action of trespass was 
 brought by "The Governors of King's College, 
 Nova Scotia,'* (the real name of the corporation), 
 Held, that the grant was prima fucie made 
 to the corporation. 
 
 Governors of Kimfs College v. McDmudd, 
 
 2 Thorn., 106. 
 
 LABEL. 
 
 misled and the plainti£P injured will be restrained 
 as a fraud upon the plaintiff, and though an 
 imitation will be deemed colorable if it be such 
 that a careful inspection ^°, required to dis- 
 tinguish it, yet a Court will not interfere when 
 ordinary attention would enable a purchaser to 
 discriminate. It is not enough that a careless, 
 inattentive or illiterate purchaser might be de- 
 ceived by the resemblance, 
 
 Johnston et al. v. Parr, R. E. D., 98. 
 
 LADING, BILL OF- 
 See SHIPPING. 
 
 Imitation of, restrained — Tbe imitation 
 
 of labels and wrappers whereby the public are 
 
 LANDLORD AND TENANT. 
 
 1. Demand of possession— Proposed par* 
 
 chaser refuses to accept deed after going into 
 possession— Cannot be ejected without de- 
 mand — A party who has entered into possession 
 of land under an agreement to purchase, and has 
 refused to accept a deed of the land tendered to 
 him, on the ground that he does not consider the 
 deed a proper one, has not by such refusal so 
 changed the character of his position as a tenant 
 at will as to put himself in the position of a 
 trespasser, and cannot be ejected without de- 
 mand of possession. 
 
 Lewer et al. v. McCiUloch, 1 R. & C, 315. 
 
 2. Distress before rent due -Second dig* 
 
 tress for same rent— Plaintiff was tenant 
 defendant who tlistrained for the first quarter's 
 rent before the expiration of the first month. 
 There was no evidence to show tliat the rent was 
 payable in advance. Defendant's wife gave se- 
 curity for the month's rent. About the middle 
 of the second month the defendant distrained 
 again for the first month's rent. 
 
 Held, thai even if the first distress was legal 
 the defendant was not justified in the second, as 
 the plaintiff had committed no act to prevent 
 him from getting the benefit of that distress. 
 
 Harris v. mer, 2 N. S. D., 466. 
 
 3. Distress for rent— Abandonment of— 
 
 Plaintiff through his bailiff distrained on goods 
 of his tenant Bryne, April 5th, but no attempt 
 was made to sell until twelve days afterwards. 
 No appraisement was made, and the tenant was 
 left in possession. One reason given for the 
 delay was that the tenant's children were sick 
 and could not be moved, but there were other 
 
825 
 
 LANDLORD AND TENANT. 
 
 826 
 
 circumstances connected with the delay that 
 pointed to an abandonment of the distress by 
 the bailiff. The goods were seized April 16th, 
 under writ of replevin, by defendant, as Sheriff, 
 at the suit of a chattel mortgagee, upon which 
 this action was brought, to recover damages for 
 the removal of the goods. The County Court 
 Judge found that the plaintiff must be consid- 
 ered as having abandoned his distress, and he 
 gave judgment for defendant. 
 
 Held, that the appeal must be dismissed with 
 Costs. 
 
 Per Smith, J. — That the goods had not been 
 sold in reasonable time, and that although the 
 agreement between the landlord and the tenant 
 for delay would obviate this difficulty had the 
 question arisen between those parties, there was 
 no pretence to hold that as against the Sheriff 
 the goods were in custodia legis. 
 
 Per McDonald, J. — That the Judge of the 
 County Court having found that the distress had 
 been abandoned, this Court had no power to 
 interfere with the finding, and that the Court 
 could only reverse his decision, if at all, on the 
 ground, not that it was against the weight of evi- 
 dence, but that there was no evidence to support 
 it, tlie appeal not having been taken on the ground 
 that it was against the weight of evidence. 
 
 Per Weatherbe, J. — That the evidence in 
 support of plaintiff was of so suspicious a char- 
 acter that the Judge below was enabled in the 
 exercise of an intelligent discretion to find as 
 he had done and had properly done. 
 
 James, J., dissenting, 
 
 Held, that there had been no abandonment, 
 and interpreted the finding of the County Court 
 Judge that there had l)een, not as a conclusion of 
 fact, but as a conclusion of law, which he held 
 to be erroneous. 
 
 Naylw V. Bell, 2 R. & G., 444 ; 
 2C. L. T.,263 
 
 4. Distress for rent— Agreement not to 
 
 distrain — Mrs. M. received from plaintiffs 
 certain articles of furniture, under the foUowinf 
 written memorandum signed by her : "Received 
 from Messrs. P. & Son the following articles of 
 furniture for which I am to pay, &c. The said 
 furniture to remain the property of W. F. & 
 Son till paid for in full, and in the event of non- 
 payment the said W. F. & Son can take the 
 furniture back." The defendant, who was Mrs. 
 M's. landlord, before the furniture was delivered, 
 signed the following written memorandum : 
 " The bearer Mrs. M. being about to purchase 
 some furniture from W. F. & Son, and my rent 
 being guaranteed, I hereby agree not to take the 
 
 • furniture so to be provided by W. F. & Son, for 
 
 ■ any rent that may become due." 
 
 Held, that defendant was estopped from dis- 
 training on the furniture so supplied. 
 
 FroLser et al. v. Wallace, 2 R. & C, 337. 
 
 0» appeal to the Supreme Cmirt of Canada , 
 
 Held, affirming the judgment below, that the 
 memorandum signed by defendant constituted 
 a binding contract or arrangement with F. & 
 Son not to distrain. 
 
 Wallace v. Fraaer, 2 S. C. R., 522. 
 
 5. Distress for rent— Goods prlTlleged 
 
 from — Defendants let to a tenant certain prem- 
 ises, the upper portion of which was used as an 
 inn or hotel for farmers, and a part of the lower 
 flat provided with stalls for the lodgers in which 
 to sell produce to all buyers. Plaintiff occupied 
 a stall in which, along with goods brought there 
 by himself, he offered for sale a quantity of 
 apples bought in this same market or outside. 
 The apples were seized under a distress for rent 
 due defendants by their tenant, and plaintiff 
 replevied, claiming that tlie goods were privi- 
 leged from distress, being in a public market for 
 sale. The County Court Judge held that the 
 goods were so privileged. 
 
 Held, that the exemption could not l)e claimed 
 on the ground set up in this defence, as plaintiff 
 was not using the premises as a market, but 
 simply as a shop in which to offer, in the ordi- 
 nary way, goods purchased to be sold for a profit. 
 Be7U v. McDotujall e< o^., 2 R. & G., 468 ; 
 2 C. L. T., 262. 
 
 6. Distress— Notice of sale under— Deren< 
 
 dant made a distress upon plaintiff for rent 
 lawfully due, but did not give him the five days' 
 notice of the sale of the goods distrained pre- 
 scrilied by statute. 
 
 Held, that he was a trespasser ab initio and 
 liable in damages. 
 
 Comelim v. Burton, 3 N. S. D., 337. 
 
 7. Distress— Warrant of— Sale under— 
 
 A constable seized a horse under a warrant of 
 distress, and endeavored to sell the same before 
 the return day of the warrant, but was prevent- 
 ed from doing so chiefly by the party from whom 
 the horse was taken. Subsequently to the re- 
 turn day the constable sold the horse. 
 Held, that the sale was valid. 
 
 Wheaton v. Franchemtle, 2 N. S. D., 288. 
 
 8. ETidence of relation of landlord and 
 
 tenant — Estoppel — Plaintiffs' testator, C. C, 
 took a conveyance of land from M. P. M. , pay- 
 ing £100 for the land, at the request of defend- 
 ants, J. L. and R. L., who had previously occu- 
 pied and continued to occupy the land. Plain- 
 
827 
 
 LANDLORD AND TENANT. 
 
 828 
 
 tiffs having brought an action of ejectment to 
 recover the land from the defendants, produced 
 two witnessea, who swore that defendants had 
 paid money to and worked for C. C, in payment 
 of rent ; while one of the defendants, J. L., 
 swore that defendants never paid rent, but 
 interest, and that they were to repay the £100 
 to C. C, but that no time for repayment was 
 fixed. 
 
 Held, by the Court, acting under a rule nisi 
 to set aside a verdict taken by consent, with the 
 power of a jury to draw inferences from the 
 facts, that the relation of landlord and tenant 
 existed between C. C. and the defendants J. L. 
 and R. L., and that consequently they were 
 estopped from disputing his title. 
 
 Crow et al. v. Loicden et al.,2'R. & C, 78. 
 
 9. ETlction — Acts not anttaorlted by 
 
 landlord, held not to constitute eviction — 
 In an action for rent of land of which the de- 
 fendant entered into possession under a tender 
 made to Her Majesty's Principal Secretary of 
 State for War, defendant contended that he had 
 been evicted, first by a lease made of part of the 
 premises to the Directors of Point Pleasant Park 
 and by permission given by the Colonel of the 
 Engineers to the French Cable Co. to erect a 
 building on part of the demised premises. The 
 lease referred to was made subject to existing 
 leases, and it did not appear that the Colonel of 
 the Engineers had authority to give the per- 
 mission complained of. Accordingly the judg- 
 ment of the County Court was for plaintiff. 
 
 ffeld, that the judgment was rightly given 
 for plaintiff on the grounds taken, and that it 
 was too late on appeal to take the ground not 
 taken in the Court l)elow that the action should 
 have been in the name of the Secretary of War 
 
 as plaintiff. 
 
 Quet7i v. Miller, 4 R. & G., 361. 
 
 10. Fixtures— Removal of— Damages for— 
 
 In an action by plaintiff to recover damages for 
 the removal of fixtures from property of the 
 plaintiff, occupied by defendant as a tenant, the 
 latter relied on a bill of sale from Q., a former 
 tenant, by whom the fixtures had been placed 
 upon the premises, and under whom the defend- 
 ant had gone in. 
 
 The term for which Q. held having expired 
 before the removal of the fixtures. 
 
 Held, that plaintiff must recover, and that the 
 judgment for the defendant must be set aside. 
 
 Judgment having been given for defendant on 
 
 a former trial, judgment was now entered for 
 
 plaintiff, rather than send the case back again. 
 
 Harrison v. Smith, 7 R. & G., 516 ; 
 
 8C. L. T.,58. 
 
 11. Fixtures — Trade fixtures — PlaintUT 
 
 let to the defendant a dwelling house for the 
 term of five years, with privilege of renewing, 
 under a written lease, in which defendant cove- 
 nanted to surrender the premises in as good 
 condition as reasonable wear and use would 
 permit, and the plaintiff agreed to permit the 
 defendant to remove the lower front room win- 
 dows, lower the floor, substitute a shop front, 
 and make such alterations as he might re<|uire 
 for the completion of a shop. Defendant made 
 the alterations, and at the end of the term quitted 
 the premises, having removed the counters and 
 shelving and a lead pipe and sink. The Judge 
 of the County Court decided that the defendant 
 had a right to remove these articles as trade 
 fixtures, and plaintiff appealed on the ground 
 that the decision was against law and evidence. 
 
 The rule for appeal was taken Dec. 3, 1879, 
 and on Dec. 14, 1880, defendant moved for leave 
 to amend the grounds so as to raise the question 
 as to the right to remove these articles as 
 fixtures. 
 
 Held, that the amendment could not be al- 
 lowed, and that the judgment below was correct. 
 
 Per McDonald, J. — That the question as to 
 the right to remove the articles was one of fact, 
 upon which the determination of the County 
 Court Judge could not be disturbed unless upon 
 an overwhelming preponderance of evidence. 
 
 Per Weatherbe, J. — That the Judge had 
 rightly determined that the articles were fix- 
 tures, which the tenant had a right to remove, 
 and this was the point upon which the ciue 
 
 turned. 
 
 Laidlaw v. Taylor, 2 R. & G., 155. 
 
 12. Lease— Not forfeited by couTeyanice 
 
 in fee — Plaintiff made a lease for lives. The 
 lessee conveyed to tlie defendant in fee simple 
 and afterwards assigned to liini the lease. 
 Defendant paid rent to the plaintiff both Ijefore 
 and after action of ejectment brought by plain- 
 tiff. In this action plaintiff relied on the for- 
 feiture of the lease by the making of the deed 
 in fee simple, but it appeared that plaintiff was 
 not aware of this fact until after action brought. 
 The Judge recommended a non-suit which was 
 accordingly entered, but the Court set it aside, 
 as there was some evidence that plaintiff had 
 treated defendant as a yearly tenant, and not 
 merely as holding under the lease. 
 
 Per James, J. — That the conveyance in fee did 
 not create a forfeiture. 
 
 Berry v. Berry, 4 R. & G., 66; 
 LeCain v. Wieland, 4 R. & G., 71, ». 
 
 18. Lease — Verbal agreement fl>r - 
 
 Statute of fVands— Aathority of wife to con- 
 
829 
 
 LANDLORD AND TENANT. 
 
 830 
 
 ^i^ct — Yearly value of tenancy — Defendant's 
 wife entered into an agreement to lease from 
 plainti£f a portion of a house, at a stipulated 
 rental, for the period of one year, the tenancy 
 to commence on the 1st May, 1885. At the 
 time the agreement was entered into the prem- 
 ises were in the occupation of a third party, 
 wlio remained in posseesion for a day or two 
 after the Ist May, and before the date on which 
 defendant's tenancy was to commence, defendant 
 told plaintiff that he could not move in on 
 iccount of his wife's illness, but that he would 
 make good any loss plaintiff might sustain in 
 consequence. 
 
 Hdd, per McDonald, C. J., that there was a 
 lease or estate at will created between the par- 
 ties wliich would enable the plaintiff to recover 
 the quarter's rent, though there might be duubt 
 whether it would support a promise to compen- 
 Eute him for any loss he might sustain in re- 
 letting the premises. 
 
 AUo, Ritchie, J. concurriiuj, that the point 
 that the lease was bad, the rent reserved not 
 having been proved to be two- thirds the annual 
 value of the property, was not open to defend- 
 ant, not having been taken in the Court below. 
 Per McDonald, J. Smith, J., concurring, 
 that there was no proof of authority to defend- 
 ant's wife to make the contract, and that the 
 promise by defendant to pay any loss incurred 
 in re-letting the premises was not a sufficient 
 ratification to turn the agreement into a lease. 
 
 Alxo, that, assuming the wife's authority to 
 be proved, there was, at most, an agreement for 
 a lease. 
 
 Also, that the omission to prove the propor- 
 tion of the rent reserved to the yearly value of 
 the property was fatal to plaintiff's case. 
 
 Power v. Griffin, 20 N. S. R, 
 (8R. &G.), 52. 
 
 14. Lien for rent— Sec. 7 of chap. 107, 
 
 Revised statutes (4th series), providing that no 
 goods sliall be removed from the premises under 
 execution, until one year's rent or a ratable 
 part thereof be paid to the landlord, does not 
 apply to goods taken under attachment under 
 the Absconding Debtor's Act. 
 
 Miller v. Ling, 4 R. & G., 135. 
 But see 5th R. S., c. 125, s, 14, which corres- 
 ponds with 4th R. S., c. 107, s. 7. The word 
 "attachment " has been there specially inserted. 
 
 15. Mesne proflts— Non-Joinder of tenant 
 
 in common aa plaintiff in action for use and 
 occupation— J. H. and C. H. were tenants in 
 common of an undivided parcel of real estate. 
 Plaintia bought C. H's interest under a judgment 
 
 duly recorded against him. C. H. and his 
 widow after his death remained in possession of 
 the land, and some time afterward plaintiff 
 brought an action for use and occupation adding 
 a count for mesne profits. No contract express or 
 implied between plaintiff and the widow of C. H. 
 was proved. 
 
 Held, that no action would lie for use and 
 occupation, the widow occupying adversely; that 
 no action would lie for mesne profits as there 
 had been no previous recovery in ejectment by 
 plaintiff ; and that even if a contract had been 
 proved to sustain use and occupation the non- 
 joinder of J. H., as plaintiff, was fatal to the 
 action as brought. 
 
 LeCain v. Hoaterman, 2 R. & C, 229. 
 
 On appeal to the Supreme Court of Canada, 
 Held, 1. An action of trespass for mesne 
 profits is consequential to the recovery in eject- 
 ment. 
 
 2. Even if such an action would lie under 
 some circumstances without ejectment brought, 
 the plaintiff could not recover without satisfac- 
 tory evidence of actual entry and possession. 
 
 3. After entry there is a relation back to the 
 actual title as against a wrong-doer, and an 
 action may be maintained for trespass prior to. 
 such entry. 
 
 But in this case, besides a deficiency of evi- 
 dence of entry, there was some evidence that 
 the defendant remained in possession subsequent 
 to the 12th August, 1873, the day the plaintiff'a 
 title accrued, with the assent of the plaintiff. 
 
 Strong, J., doubt imj. 
 
 4. In any event the action for mesne profits 
 would not lie, the defendant having been pre- 
 vious to the I2th August, 1 873, in possession with 
 the consent of J. H. , the co-tenant in common^ 
 and being, therefore, entitled to a notice to quit, 
 
 I or demand of possession, before her possession 
 could be considered tortious. 
 LtCain v. Hosterman, 2Sth January, 1S78, 
 
 Cas. Digest, 504. 
 
 16. Notice to quit— Notice by tenant to 
 
 quit in April next, the tenancy actually termi- 
 nating on the 8th of the month, and served 
 three months before the actual termination, 
 Htld, sufficient. 
 
 Broim v. Boole, 1 Thorn., (1st Ed.), 108; 
 
 (2nd Ed.), 137. 
 
 17. Notice to quit— Tenancy at Increased 
 
 rent — The following written notice was served 
 on a tenant on the 1st February, 1864 : "Dart- 
 mouth, Feb. I, 1864. Mrs. L. will please take 
 notice that the rent of the house she now 
 
831 
 
 LANDLORD AND TENANT. 
 
 832 
 
 occupies will be twenty-five pounds per annum, 
 commencing May 1, 1864. Respectfully, P. F." 
 The tenant had previously paid a rent of £20 a 
 year for the house. At the time the tenant was 
 served with this notice, she said that she would 
 not pay that rent ; that she would give up the 
 house. The landlord subsequently told her that 
 if she would not keep the house, it was let, to 
 wliich she replied that she certainly would not 
 keep it. 
 
 Held, that the notice was not, even under all 
 these circumstances, a notice to quit. 
 
 The fact of a tenant remaining in the house 
 after receiving such notice, does not prove a 
 tenancy at the increased rent, although she 
 stated while she so remained and admitted 
 by one of her pleas and at the trial that she 
 actually occupied half the house under an alleged 
 agreement to pay half the increased rent, which 
 agreement, however, the jury found not to be 
 proved. 
 
 Ladd v. Elliott et (d., 1 Old., 703. 
 
 IS. Notice to quit — Where an official 
 
 person occupies a house merely in virtue of his 
 office, when he ceases to hold the office his right 
 to the possession of the house expires and he is 
 not entitled to notice to quit. 
 
 Lessee of Bigelow et al. v. Xorton, 
 
 2 Thorn., 283. 
 
 19. Possession under oral agreement for 
 
 lease — A person in possession of land under an 
 oral agreement for a lease has against all others 
 than the owner the right to do all things which 
 the owner could do to enable him to have the 
 full enjoyment of the property. 
 
 McMidlen v. Kendrick e< a/., 5 R. & G., 308. 
 
 20. Repairs — landlord undertaking to 
 
 make, without notice to tenant — Damages 
 — Plaintifif was tenant of a shop in a building 
 owned by defendant, the upper portion of which 
 was occupied by other tenants. It having 
 become necessary to make certain repairs to the 
 roof of the building, a portion of the roof was 
 removed at defendant's instance without notice 
 to plaintiff. Owing to the negligent manner in 
 which the work was done, rain fell into the 
 building and ran through and injured the plain- 
 tiff's goods. 
 
 Held, that the work was done by defendant 
 at his own risk, and that he was responsible to 
 the plaintiff for the injuries sustained by her in 
 consequence of the damage to her goods. 
 
 Semble, there being a count in which such a 
 claim was made, that it might properly have 
 been left to the jury to ascertain the damage 
 
 sustained by plaintiff in consequence of tiie 
 breaking up of her establishment and the loss of 
 her business. 
 
 Ervjlet/ V. Mcllreith, 3 N. S. D., 511. 
 
 21. Bight to distrain lost when goods 
 removed by landlord under other claim than 
 for rent — Defendant, with a view of securing 
 §50 rent due to him by one Scott, purchased a 
 lot of furniture from the wife of Scott, in iiia 
 absence, and removed it to his own premises. 
 Previous to this Scott had given plaintiffs, from 
 whom he had purchased the goods, a chattel 
 mortgage on them as security for the price. 
 Plaintiffs having demanded the goods from 
 defendant, who refused to give them up except 
 on payment of $50, brought an action of trover 
 to which defendant pleaded setting up a lieu for 
 rent and a distraint on the goods after tiieir 
 removal to his own house. 
 
 Held, the right to distrain ceased upon the 
 removal of the goods from the demised premises 
 to defendant's house. 
 
 Fraser et al. v. McFatridije, 1 R. & G., 28. 
 
 22. Tenancy at will— When entitled to 
 
 demand of possession before ejectment — 
 Where the defendant goes into possession of laud 
 as tenant at will under a third party, but upon 
 the invitation and with the concurrence of lessor 
 of plaintiff, he is entitled to a demand of posses- 
 sion before he can be ejected. 
 
 Lesxee of McKinnon v. McDonald, James, 7- 
 
 23. Tenancy by the curtesy— Conveyance of 
 
 — The purchaser of a tenancy by the curtesy is 
 not estopped, by accepting a conveyance, from 
 disputing the existence of that estate as against 
 the heir of the deceased wife, but the acceptance 
 of the conveyance, unless explained by oilier 
 testimony, is a very strong admission of the 
 existence of the estate which it professes to 
 convey, and of the title of the heirs after the 
 termination of that estate. 
 
 Lessee of Archibald v. Blois, James, 307. 
 
 24. Tenancy, determination of— Surreii' 
 
 der by re-letting premises— Defendant, being a 
 yearly tenant left before the end of his term, and 
 plaintiff re-let the premises to another. Plaintiff 
 then sought to recover rent from defendant for 
 one of the quarters of the unexpired portion of 
 the term, giving credit for the amount received 
 from the tenant to whom he had re-let. There 
 was no evidence or finding of a consent or 
 request from the defendant to the plaintiff to 
 re-let. 
 Held, that the plaintiff could not recover. 
 
 Matthias v. Pace, 3 R. & G., 366. 
 
833 
 
 LEASE. 
 
 834 
 
 i5. Tenant's flxtures— Removal after ex- 
 
 pirj- of term by party holding bill of sale- 
 Action by landlord— Judgment for defendant 
 reversed — In an action by plaintiff to recover 
 damages for the removal of fixtures from prop- 
 erty of the plaintiff, occupied by defendant as 
 tenant, the latter relied on a bill of sale from 
 Q,, a former tenant, by whom tlie fixtures had 
 been placed upon tlie premises and under wlioni 
 defendant had gone in. 
 
 Tlie term for which Q. held having expired 
 liefore the removal of the fixtures, 
 
 ffddt that plaintiff must recover, and that 
 judgment for defendant must be set aside. 
 
 Judgment having been given for defendant on 
 a fiirnier trial, judgment was now entered for 
 plaintiff rather than send the case back again. 
 
 Harrison v. Smith, 7 R. & O., 516 ; 
 8C. L. T.,58. 
 
 26. Use and occupation— Action for does 
 
 not lie against pai ty who goes into possession 
 under contract which fails — Where a vendor 
 lets a vendee into possession of lands on a con- 
 tract whicli afterwards goes off, he camiot re- 
 cover for use and occupation. 
 
 Temple el al. v. McDonald, 2 Old., 1.55. 
 
 '21. Yearly tenancy —Evidence of— Plain- 
 
 tiff testitied that defendant entered his premises 
 as a yearly tenant at £9<) a year, anil that there 
 never was any agreement that he was to be a 
 monthly tenant. Defendant testified that the 
 premises were engaged verbally at §30 per 
 month. Defendant also put in evidence two 
 receipted accounts from plaintiff, one for one 
 month's rent of office from 1st November to 1st 
 December, 1871, S30, and another for four and 
 a ijiuirter months' rent. 
 
 Hdd, that the evidence so largely prepon- 
 derated in favor of defendant in the absence of 
 explanations b-, the plaintiff of these accounts, 
 that the verdict for tlie plaintiff' must be set 
 aside. 
 
 Ritchie, E. J., and Wilkins, J. disHentimj. 
 
 O'Ntil V. Wells, 2 R. & C, 205. 
 
 2S. Yearly tenancy — Payment of rent 
 
 (juartcrly is net conclusive evidence of a yearly 
 tenancy. 
 
 //alliburton v, Molloy, James, 246. 
 
 lABCENT- 
 See CRIMINAL LAW. 
 
 LAW STUDENT. 
 
 Filing articles— Tbe Court reftased to allow 
 
 a law student's articles of apprenticeship to be 
 filed, nunc pro tunc, where they had not been 
 filed at the time of their execution. 
 
 In re Application of Weeks, 2 R. & C, 383. 
 
 LEASE. 
 
 1. Covenant for quiet enjoyment— Oefen* 
 
 dant demised to the plaintiffs for a certain 
 period a mill and mill machinery with a water 
 privilege, the water power to be of the same 
 extent as that enjoyed by the then lessee of the 
 mill, the lease containing a covenant for quiet 
 enjoyment. The evidence showed that a water 
 privilege to the extent provided for had not 
 been actually enjoyed by the plaintiffs, and that 
 injury and loss had resulted from the deficiency, 
 which was due to acts either of defendant him- 
 self or of the .S. M. Co., his tenant. 
 
 Held, that the plaintiffs were entitled to re- 
 cover, the defendant having failed to show that 
 the deficiency of water power was occasioned by 
 causes that reiidered it impossible for him to 
 perform the covenant in question. 
 
 Parke'- el al. v. Fairbanks, 1 R. & C, 215. 
 
 2. Lease made in foreign country— Re- 
 
 moval of property leased, contrary to agree- 
 I ment— Bills of Sale Act, 5th R. S., c. 92, s. 3, 
 I not applicable to foreign contracts — The 
 ' plaintiff company leased a sewing machine to 
 ; McH. at Belfast, Maine, taking a bill of sale by 
 way of security. The lease was made upon a 
 j written undertaking that the machine was not 
 ! to be removed from the house in which it was 
 \ placed without the written consent of the com- 
 pany, McB. subsequently removed to Truro, 
 N. S., takinj^ the machine without having ob- 
 tained such written consent, and pledged it at 
 Truro to the defendant. 
 
 Plaintiff having brought an action claiming 
 the return of the machine and damages for its 
 detention, the ground was taken that the plain- 
 tiff's bill of sale had not been registered in this 
 Province in compliance with the requirements 
 of 5th Revised .Statutes, c. 92, s, 3. 
 
 Htld, that the provisions of the Act relied on 
 were not applicable to a bill of sale made be- 
 tween parties and in respect to a subject matter 
 out of the Province. 
 
 Also, that the removal of the machine to this 
 Province without the plaintiff's consent was an 
 act of trespass, which precluded any subsequent 
 
835 
 
 LIBEL. 
 
 836 
 
 dealings with it on the part of the lessee from 
 affecting the plaintiff's right. 
 
 Singer Sewing Machine Co. v. McLeod, 
 
 20 N. S. R., (8R. &G.), 341; 
 9 C. L. T., 60. 
 
 3. or mining areas— 
 
 4. Beglstratton of— 
 
 See MINING LAW. 
 
 'S'ee DEED, 33. 
 
 5. Verbal agreement for- 
 
 See LANDLORD AND TENANT, 13. 
 
 LEAYE AND LICENSE- 
 ^ee TBESPAS8. 
 
 LEGACY. 
 
 1. Action at common law lor— 
 
 Held, that an action would lie at common 
 law against one of the executors of a will con- 
 taining the following bequest : "I give and 
 bequeath to my wife Elizabeth, a decent, suitable 
 and comfortable maintenance, to be furnished 
 and provided for her by my son, Elisha Ells, as 
 hereinafter directed," and a subsequent bequest 
 and devise of all residue, of personal and real 
 estate to Elisha, charged with that bequest. 
 Elisha and Jonathan Ells were appointed execu- 
 tors. Action against Elisha. 
 
 An action for a certain legacy can be main- 
 tained in common law courts, against any 
 person, who, under a will, is made liable to pay 
 such legacy, and receives under such will funds 
 sufficient to pay it. See 5th R. S., c. 113, a. 4. 
 Ella V. Ells, 1 Thom., (2ud Ed.), 173. 
 
 2. Liability of real estate to pay— The 
 
 real estate of a testator is not liable for the 
 payment of legacies, unless it is manifest from 
 the will that such was the testator's intention. 
 
 Construction of the Probate Act (Chapter 130 
 
 Rev. Stats. (2nd series), sees. 13 and 18, settled. 
 
 In re Estate of McKay, 1 Old., 131. 
 
 LEGAL TENDER. 
 By the terms of a lease of property situate 
 
 in Nova Scotia, it was provided that certain pay- 
 ments should be made periodically in "dollars 
 
 and cents of United States currency." After the 
 execution of the lease, the Congress of the 
 United States passed a law authorizing an issue 
 of Treasury Notes, not bearing interest, and 
 provided that they "shall be lawful money and 
 a legal tender in payment of all debts public and 
 private within the United States, except in pay- 
 ment of duties on imports and interest on United 
 States bonds or notes." 
 
 JTeld, that the tender of United States treas- 
 ury notes, issued under this Act, was not a legal 
 and sufficient tender of the payments due under 
 the lease. 
 
 Nova Scotia Telegraph Co. v. American 
 
 Telegraph Co., 1 Old., 426. 
 
 LEGISLATITE AUTHOBITT- 
 See BBITISH NOBTH AMEBIGA ACT. 
 
 LEVY. 
 
 1. Levy and appraisement— From what 
 
 time levy effectual — When the appraisement 
 shows that the appraisers were sworn, and the 
 Sheriff's return refers to the appraisers' warrant, 
 the swearing of the appraisers sufficiently ap- 
 pears. 
 
 " Service on the agent of process to appear," 
 in 8. 26, c. 97, R. S., (4th series), means service 
 on the company's agent of process requiring the 
 company to appear. Levy under the attachment 
 under that chapter may be made before service 
 on the agent. The levy is effectual from the 
 time of seizure of the property, and not merely 
 after appraisement and selection of the property 
 to be held to respond the judgment. 
 
 The Merchants' Bank v. The Steel Company 
 of Canada (Limited), 5 R. & G., 258. 
 
 2. What necessary to constitute - To 
 
 constitute a levy, the officer must do some act 
 to enable him to deliver possession of the pro- 
 perty to the purchaser. 
 
 See EXECUTION, 22. 
 
 Fraser v. Jenkins, 20 N. S. R., (8 R. & G.), 494. 
 See, also, EIEtUTION, 20-24. 
 
 LIBEL- 
 See DEFAMATION. 
 
837 
 
 LIEN. 
 
 838 
 
 IICENSE- 
 
 1. Licensing Insurance Companies— Val- 
 idity of Act of Local Legislature authorizing 
 impoBition of license — 
 
 See BRITISH NOBTH AMERICA ACT, 10. 
 
 2. License Law -"Agreements'* does not 
 
 include "account stated" — Provincial Act of 
 1863, c. 17, not retrospective — The Provincial 
 Act of 1863 ch. 17, sec. 8, which provides that 
 "accounts stated" shall be included among the 
 securities made void by the 16th section of 
 chapter 22 of the Revised Statutes (2nd series), 
 does not extend to actions commenced before its 
 
 The word "ogreements" in the last named 
 section does not include "account stated." 
 
 Smyth V. McNeil, 2 Old., 75. 
 
 3. License Law relating to sale of Intoxi* 
 
 eating liquors — Procedure under — 
 
 ^66 CERTIORARI- 
 
 JVSTICES OF THE PEACE. 
 
 4. License to sell real estate of deceased— 
 
 -S^ee PROBATE COURT. 
 
 5. License — Parol revocation- Plaintiff 
 
 derived title to a mill through his father, 
 who, forty-five years before action, cut a canal 
 through the land, which at time of action be- 
 longed to the defendant, and through which canal 
 the water flowed to the mill until nineteen 
 years before action, when B., the then owner 
 of the land, gave verbal permission to the 
 plamtiif to cut a new canal in substitution of 
 the old one, and though he gave no express 
 leave to the plaintiff to make a dam on said 
 land, did not object to it when made. The 
 plaintifiF, shortly after the permission thus given 
 cut the new canal, which was 200 yards north 
 of the old one, and erected the dam. Defendant 
 derived title under B., and there were no reser- 
 vations in any of the deeds. Ten years after 
 this, and after he had been privy to the plaintiff 
 repairing the dam, defendant abated it, without 
 tendering to plaintiff the expense of its erection. 
 Held, that the permission thus given for the 
 cutting of the new canal, and the erection of the 
 dam, not being under seal, was to be accounted 
 only a parol license, revocable at any time, and 
 that the defendant might lawfully abate the 
 dam, and, ;)€r Dodd, J., that the conveyance to 
 defendant was a revocation. 
 
 Bipley v. Baker, 1 Old., 23. 
 
 6. Party acting nnder, must conform 
 
 strictly to it — A party acting under a license 
 must conform to it, and if the act done be not 
 fully covered by the license, the party commit- 
 ting it is responsible. 
 
 Dickie v. Spanh, 1 N. S. D., 446. 
 
 7. Qnalifled license— Defendant bailt a 
 
 stone wall between his land and that of the 
 plaintiff, of which three feet at the bottom and 
 one foot nine inches at the top, were on plaintiff's 
 property. At the time the wall was erected 
 plaintiff said to defendant's builder : " You're 
 building on my land ;" he said further, that he 
 had no objections, but "I caution you that in 
 the case of my selling, the purchaser may put 
 you to trouble. " 
 
 ffeld, that this was a qualified license justi- 
 fying the erection of the wall but going no 
 further. 
 
 Peters v. Frecker, 3 N. S. D., 67. 
 
 8. Revocable- Defendant made and de- 
 
 livered to plaintiff a memorandum, not under 
 seal, in the following terms : "I do hereby 
 agree to lease to you, William Hendry, the 
 privilege of light in the west side of your build- 
 ing, Ac, for the term of ten years from this 
 date, at a yearly rent of twenty-five cents per 
 annum." 
 
 Held, that the memorandum constituted a 
 
 mere license, revocable at defendant's pleasure. 
 
 Hendry v. Scott, 3 N. S. D., 215. 
 
 LIEN. 
 
 1. Crown— Hen of, upon real estate of 
 
 certain public officers — Imperial Statutes — 
 The Statutes of 33 Hen, 8, c. 39, and 13 Eliz., c. 
 4, which gave the Crown a lien upon the real 
 estate of certain public officers as a security for 
 the fulfilment of their bonds, are not in force in 
 this Province. 
 
 Uniacke v. Dickson et al., James, 287. 
 
 2. Destroyed by tender— Defendant con> 
 
 tracted with the plaintiff to make and iron a 
 track sulky, for a price agreed upon. 
 
 On completion of the work defendant tendered 
 the amount agreed upon, but plaintiff refused 
 to accept it or deliver the sulky unless he was 
 paid a larger amount. Defendant thereupon 
 broke open plaintiff's workshop and removed 
 the carriage. 
 
 ffeld, inter alia, that the tender destroyed 
 plaintiff's lien. 
 
 Willis V. Sweet, 20 N. S. R., (8 R. & G.), 449; 
 
 9C. L. T.,232. 
 
839 
 
 LIEN. 
 
 840 
 
 3. Mortgagee of ungranted lands applied 
 
 for has a lien on the lota granted on such ap- 
 plication, although different from those indi- 
 cated in application — Thomas and John 
 Arcliibald nirn-tgaged to plaintiff two third parts 
 of several lots of ungranted Crown lands applied 
 for and paid for hy K. and others, the riglit 
 to receive whicli was by them transferred to the 
 .St. C-roix Manufacturing Company, said Archi- 
 balds having become interested therein to the 
 extent of two third parts. 
 
 Before the grants were taken out the Archi- 
 balds became insolvent, and defendants, as trus- 
 tees for the creditors, jjrocured said grants of 
 land based on the original application, Init they 
 selected the lots in localities somewluit different 
 from those indicated in sucli application. 
 
 Held, that plaintiff had a lien on two thirds 
 of the land comprised in the grants for tlie debt 
 intended to be secured l)y tlie mortgage, and 
 that an order must pass that tlie amount thereof 
 should be paid to him, otherwise said two tliirds 
 of the land to be sold to satisfy plaintiff's claim. 
 Stephenn v. Twiiiiii<j tt al., R. E. D., 170. 
 
 4. None upon goods of the Sovereign— 
 
 The goods of the Sovereign cannot be detained 
 under a claim of lien. 
 
 A defendant cannot plead double or several 
 matters in tlie case of the Crown. 
 
 The Queen can bring replevin under 4th R. S. 
 
 c 94 sec. 329. 
 
 ' ' Queen v. Fmscr, 1 R. & C, 431. 
 
 5. Of Judgment on after acquired pro* 
 
 perty — 
 
 Set JUDGMENT, 24 and 33. 
 
 6. Of master for wages— The tUct that the 
 
 master has accepted a promissory note from two 
 
 co-owners in the vessel for watjes due him, which 
 
 note was not paid, does not take away his lien 
 
 although the vessel has been sold to a bona fide 
 
 purchaser. 
 
 The Aura, Y. A. U., 54. 
 
 7. Of master ui.on ship— 
 
 See SHIPPING. 
 
 8. Of solicitor for costs- 
 
 See ATTOBNET. 
 
 9. Rent— lien not created, before rent 
 
 due, by insolvency of tenant — Distraint — 
 Until rent falls due the landlord has no lien on 
 property on the premises. On sale and removal 
 of such property the landlord cannot look to it 
 for payment of rent which subsequently accrues 
 due. The only right which the landlord has is 
 
 to distrain on whatever property is found on tlie 
 premises at the time tiie rent falls due. Tiiere 
 is no obligation on anycme to keep the property 
 on the premises till the rent falls due to erahle 
 the landlord to distrain on it. No lien is tre- 
 ated under the Insolvent Act, 1875, in favor nf 
 the landlord for rent not due at the time of 
 insolvency. 
 
 In rt O'Midlin A Johnstone, R. K. D,, b", 
 
 10. Vendor's lien on land, for unpaid 
 
 purchase money— S. l*. bought land from H, 
 
 F., and paid for it, but did not take a deiMl of 
 ; it. .Subsetjuently S. P. agreed to sell to M. C, 
 
 Sr., but by agreement among the parties tlie 
 ] deed was made out to M. C., Jr. S. 1'. was 
 ' never paid for the land, but took notes fmrn 
 ! M. C, Sr., wiiich he subseiiuently assigned ;iiiJ 
 
 indorseil to the father of J. 1*. 
 
 Hild, in an action of ejectment brougiit forty 
 
 years afterwards against J. 1'., who claimed tliu 
 
 land by virtue of an assumed lien, that no lien 
 : ever existed in 8. P., as he never had a title, 
 t and that even if tiiere bad been a lien, and even 
 ; if it could have been transferred by the indorse- 
 
 ment of the notes from 8. P. to the father of 
 ! J. P. , it would not pass to J. P. , but to the execii- 
 1 tors of his father. 
 
 Mewjher et al. v. Paidin tl al., I R. & C, 79. 
 
 11. Vendor's lien on land-Surrender of- 
 
 Defendants, husband and wife, purciiased from 
 plaintilf a house and land, and a large portion of 
 i the purchase money arising from funds to wliicli 
 j the wife had been entitled in her own right, a 
 j deed was executed by plaintiff to the wife's 
 brothers in trust fc • her, and, by a bond of the 
 same date, both husband and wife bound them- 
 selves to the plaintiff for the payment of the 
 balance unpaid of the purchase money. A 
 ! further sum was afterwards paid on account, iinJ 
 subsecjuently plaintiff recovered judgment against 
 the husband for the balance still unpaid, hut 
 issued no execution thereon, as the defendant 
 was insolvent. The Plaintiff then sought to 
 establish his lien upon the land for what was 
 still due of tlie purchase money. The defendants 
 pleaded that it was fully understood between all 
 parties at the execution of the deed that plain- 
 tiff was to be satisfied with the bond and not to 
 retain his equitable lien, and that it was upon this 
 express understanding that the wife advanced 
 the money out of her private estate. Tlie jury 
 having found in favor of the defendants on the 
 issue thus raised, 
 
 Held, that the plaintiff must be considered to 
 have surrendered his lien, and that the verdict 
 for defendants should be confirmed. 
 
 Broim V. Chesley et al., 1 N. S. D., 315. 
 
S41 
 
 LIMITATION OF ACTIONS AND SUITS. 
 
 842 
 
 12. Waiver of lien— Defendants, in an 
 
 action of replevin for fish claimed to have a lien 
 for storage anil wharfajje. A waiver of the lien 
 was pleaded and plaintiff swore that when he 
 tirst presented an order for the fish to defendants, 
 (k'fcndftuts claimed only storage. It appeared, 
 however, that when plaintiff first disposed of 
 part of the fish, defendants' claimed both storage 
 and wliarfagc, and refused to deliver any of the 
 tish until the claim was paid. On th3 same day 
 plaintiff wrote to defendants that ' ' he presumed 
 tiie amount for storage and wharfage was cor- 
 rect and be enclosed a cheque for the amount." 
 Plaintiff testified that this amount was paid 
 iiniler protest. 
 
 Held, that defendants could not be precluded 
 from showing that their lien remained, and that 
 the verdict for plaintiff must be set aside. 
 
 Latcson v. Corbett eC al., 2 R. & G., 32*2; 
 2 C. L. T., 94. 
 
 13. Watcbmaker — Lien for repairs— A 
 
 chronometer was left by the plaintiff witii the 
 (lefciidant a chronometer and watch maker and 
 repairer in Halifax, with instructions as sworn 
 to liy defendant to put the instrument in order. 
 Defendant on examining it, found that it requir- 
 ed repairs of such a nature that he was obliged 
 to scud it to Boston to have it made right. 
 Plaintiff refused to pay the amount charged by 
 tile 15oston mechanic, and, on the defendant's 
 refusal to deliver up the instrument, brought an 
 action of trover. On the trial plaintiff stated 
 that he had not ordered any repairs to be made 
 beyond polishing, &c., for the price of which an 
 ample tender made before action was proved. 
 The jury found for defendant stating that they 
 accepted his version of the instructions given 
 when the instrument was left with him. 
 
 He/d, that the defendant had a lien for the 
 cliarge made by the Boston mechanic, and was 
 justified in refusing to deliver up the instrument 
 until the bill was paid. 
 
 Wilkins J., ditmentiwj. 
 
 Webber v. Cogsivell, 2 R. & C, 47. 
 
 On appeal to the Supreme Court oj Canada, 
 
 Held, affirming the judgment below, that the 
 rule nisi for a now trial should be discharged, 
 and, as no fault was found with the work done, 
 the respondent had a lien until he was paid his 
 charges. 
 
 Webber v. Cogswell, 2 S. C. R., 15. 
 
 14. Wliarfage— Lien for— Tender— Plain> 
 
 tiff sued for damages for the unlawful detention 
 of certain lumber ; defendant pleaded a lien for 
 
 wharfage and plaintiff replied a tender of an 
 amount sufficient to cover the defendant's claim. 
 
 It was contended that the latter plea was 
 insufiScient, as there was no payment into court 
 to satisfy the dabt in respect of which the lien 
 was claimed. 
 
 Held, that the lien was discharged by the 
 tender. 
 
 Davinon v. Mulcahy, 7 R. & G., 209 ; 
 7 C. L. T., 324. 
 
 LIMITATION OF ACTIONS AND SUITS. 
 
 1. Aclinowledgment — Tlie acltnowledg- 
 
 ment, in reference to a debt due by the firm, of 
 one partner after the partnership has been dis- 
 solved is sufficient to prevent the operation of 
 the Statute of Limitations. 
 
 Bank of Nova Scotia v. Haliburton, 
 
 James, 350. 
 
 2. Aclinowledgment — Wlien a deed of 
 
 land is given for the balance of an account, the 
 deed will not be an acknowledgment in writing, 
 nor will it operate as a part payment. 
 
 McKeen v. McDowjhU, 2 Thorn., 403. 
 
 3. Aclinowledgment by payment— What 
 
 necessary — When a payment is made, but 
 nothing is said at the time respecting any bal- 
 ance, such payment will not be a part payment 
 to take the case out of the Statute of Limita- 
 tions. 
 
 McKeen v. McDougall, 2 Thorn., 403. 
 
 4. Acknowledgment in bar— Where a 
 
 party, in answer to an application for payment 
 of certain notes, said, " if he must pay the notes 
 he would if he had time given him." 
 
 Held, not to be a suflScient acknowledgment 
 to take the case out of the Statute. 
 
 Billinys v. Rwtl, 1 Thom., (1st Ed.), 61 ; 
 
 (2nd Ed.), 88. 
 
 5. Acknowledgment- Where to an appii. 
 
 cation for payment of a note, defendant said, 
 " I have had considerable dealings with plaintiff, 
 and if, upon those dealings, there is anything 
 due him, I am willing to pay him;" it was held 
 not suflScient to take the case out of the Statute. 
 Keys v. Pollok; 1 Thom., (1st Ed.), 81 ; 
 (2nd Ed.), 109. 
 
 6. Acknowledgment in bar— Simple con* 
 
 tract debts — What sufficient — Defendant made 
 a note of hand to S. which was indorsed to plain- 
 tiff who received payments on account of it from 
 
843 
 
 LIMITATION OF ACTIONS AND SUITS. 
 
 844 
 
 time to time from the indorser. Defendant 
 made no payments, but after six years from the 
 date of the note, made a new note to plaintiff for 
 the balai 'e due on the original note, the stamp 
 on which taring date identical with the date 
 of the note, was for the single duty and was 
 affixed by plaintiff on the day subsequent to the 
 delivery of the note to him. 
 
 Held, that the stamping was insufficient, and 
 that the note could not be received on the trial 
 as an acknowledgment to take the case out of the 
 Statute of Limitations, that the payments by the 
 indorser did not inure to prevent the operation 
 of the Statute aa against the maker, and that the 
 mere striking of a balance as between the parties 
 did not constitute an account stated to take the 
 case out of the Statute. 
 
 McFatridge v. Hunter, 3 R. & C, 289. 
 
 7. Acknowledgment to take case oat of 
 
 Statute — Proof of a promise to pay as " soon as 
 possible " is not suiUcient to take a case out of 
 the Statute of Limitations without proof of 
 defendant's ability to pay. 
 Hi^Iiburton, J. dis-ienling. 
 
 Murdoch v. Pitts, James, 238. 
 
 8. Acknowledgment to take out of 
 
 Statute — Where, in a settlement of accounts 
 between plaintiff and defendant, the former took 
 as part payment an order drawn by the latter 
 upon a third party, which was not accepted by 
 him, but by his son, who made payments under 
 it, 
 
 Held, not to be sufficient payment by the 
 defendant to take the case out of the Statute of 
 Limitations. 
 
 Symth V. McDonald, Cochran, 86. 
 
 9. Action for non-delirery of policy— 
 
 When right of action accrues — Plaintiffs 
 insured a vessel in the office of defendants on 
 Oct. 27th, 1863, by means of the usual application 
 slip leaving the broker to fill up the policy in the 
 usual way. On the .3l8t October the directors of 
 defendant company made an entry in their 
 record book in the following words "not allowed 
 under the policy to proceed to any port in South 
 Greenland," which they inserted in plaintiffs' 
 policy. The policy was not delivered to plain- 
 tiffs till the first of June, 1866. The first inti- 
 mation plaintiffs had of this new condition was 
 a notice served upon them on the 12th June, 
 1866, after the vessel had sailed to a port in 
 South Greenland. The vessel was lost on the 
 12th August, 1866, aud proof of loss exhibited on 
 the 22nd Sept., 1866. Plaintiffs brought action 
 on the policy on the 20th Sept. , 1872, with added 
 counts for the non-delivery of a policy in accord- 
 
 ance with the original contract. Defendants 
 pleaded the Statute of Limitations to these 
 added counts. 
 
 Held, that as the action for breach of contract 
 would have lain after the delivery of the policy 
 in June, 1866, and before the loss, it was barred 
 by the Statute. 
 
 Kohertnon et al. v, Lovett et al., 
 
 2 R. & C, 250. 
 
 10. Actions on policies of Insurance- 
 Condition in policy limiting time for bringing 
 action — 
 
 See INSUBAJfCE. 
 
 11. Adrerse possession of a widow, 
 
 centui que trwt, as against the tnistees, will 
 inure for the benefit of her children, being alao 
 cestuin que Irustenl, and cannot be set up against 
 their title. 
 
 Lessee o/ Archibald v. Blois, James, 307. 
 
 12. Adverse possession— W., under whom 
 
 defendant claimed, entered into possession of a 
 lot of land in 1834, under a judgment recovered 
 against T. in an action of ejectment, and con- 
 tinued in possession for a period of thirty years. 
 In 1846, T. conveyed to the plaintiff, who in tiie 
 following year went upon the land and had it 
 surveyed. 
 
 Held, per Johnstone, E. J., Dodd, J., and 
 Ritchie, J., that the entry and survey by the 
 plaintiff were not a sufficient interruption of tlie 
 adverse possession of W. to prevent the opera- 
 tion of the Statute of Limitations. 
 
 Per Ritchie, J., Sir W. Young, G. J., douhting, 
 T. having lieen out of possession and W. in pos- 
 session under his judgment when the former 
 made his deed to the plaintiff, no title passed 
 under it. 
 
 Sir W. Young, C. J., while concurring with 
 the majority of the Court as to defendant's 
 possessory title, reviewed the conflicting docu- 
 mentary titles of the plaintiff and defendant at 
 length, and referred fully to the township grants 
 in which the property in dispute was inclutleJ. 
 He was of opinion, under all the circumstauues, 
 that there should be a new trial. VVilkiiis, J., 
 was also of opinion that there should be a new 
 trial. 
 
 DesBarren et al. \. Shey, 2 N. S. D., 327. 
 
 On appeal to the Privy Council, 
 
 The plaintiff and the defendant set up rival 
 claims to lands under two separate streams of 
 title, each derived from a distinct grant from the 
 Crown. The plaintiff^s grant was in 1768, and 
 the title from that point was perfect ; but the 
 only material act of ownership on which he relied 
 
845 
 
 LIMITATION OF ACTIONS AND SUITS. 
 
 846 
 
 was an entry upon part of the lands in 1832 by 
 T,, against whom a judgment in ejectment was 
 afterwards given, and who thereupon relinguish- 
 ed possession. The defendant's grant (which 
 the plaintiff questioned as void for uncertainty) 
 was in 1761. The title was in some respects de- 
 fective, but under it there had been continuous 
 possession since 1805, uninterrupted except by 
 the act of T. 
 
 Hi^ld, that even supposing the grant of 1761 
 bad for uncertainty, the evidence of possession 
 under the defendant's title was sufficient to raise 
 A presumption of a valid grant. 
 
 HM, cUao, that the ejectment recovered 
 against T. and his subsequent giving up posses- 
 sion were evidence of adverse possession by the 
 defendant sufficient to bar the plaintiff's title 
 under the Statute of Limitations (Acts 1866, 
 cap. 12). Technical desseisin of the claimant is 
 not necessary to create adverse possession ; for 
 poasesainn is adverse, for the purpose of limita- 
 tion, where an actual possession is found to exist 
 under circumstances which evince its incompati- 
 bility with a freehold in the claimant. 
 
 In a case in which the facts and law appear to 
 be entirely one way, their Lordships will make 
 the presumptions which should properly be made 
 by a jury, without sending the case down for a 
 new trial. 
 
 DesBarrea et al. v. Shey, 28 L. T., 592 ; 
 22 \V. R., 27.*J. 
 
 Set, also, EJECTMENT-TRESPASS. 
 
 13. Cause of action arising in Ireland 
 
 six years before action — Action brought 
 within six years after arrival here — Where 
 an action was brought in February, 1874, and 
 tried in November, 1874, to recover certain 
 sums of money alleged to have been advanced 
 by the plaintiff while residing in Ireland, to and 
 on account of the defendant, more than six 
 years before action brought in this country. 
 
 ffeld, that the debt was barred by the Stat- 
 ute of Limitations, notwithstanding the action 
 was brought within six years after the plaintiff's 
 arrival in this country. 
 
 Johmton v. Johnston, 1 R. & C, 128. 
 
 14. Claim barred by the Statute— Plaintiff 
 
 brought action in 1873 to enforce payment of 
 ?400 and interest for land alleged to have been 
 purchased by defendant, the deed being made 
 out to defendant's brother and left with a third 
 party, to be delivered to defendant on his htmd- 
 ing him a note for the purchase money signed by 
 himself and his brother. Defendant, in his an- 
 swer, contradicted all the statements in the writ 
 and set out that the sale was made directly to 
 
 his brother, though he admitted that he would 
 have assisted him by joining in a note for the 
 purchase money. The evidence was contiicting 
 but the alleged agreement having been made in 
 1866, the Court held that the delay ic suing was 
 itself a bar to the action, if, as plaintiff conten- 
 ded, the agreement was to be considered as the 
 original undertaking of the defendant, while on 
 the other hand if it was to be viewed as a 
 guarantee, the Statute of Frauds as well as the 
 Statute of Limitations, prevented a recovery. 
 
 IVattrman v. mU, R. E. D., 197. 
 
 15. Claim in InsolTency— A claim less 
 
 than six years old at the date of a writ of attach- 
 ment is not barred by the Statute of Limitations, 
 because the six years expire before the declara- 
 tion of a dividend. 
 
 In re Leake tfc Laidlaw, Insolvents, 
 
 3R. &C.,484. 
 
 16. Claim of assignee of equity of redemp* 
 
 tion not barred by twenty years' possesaion of 
 aaaignor who claims under mortgagor — The 
 claim of an assignee of the equity of redemption 
 in mortgage premises, for surplus proceeds 
 remaining after the sale of premises on fore- 
 closure of the mortgage, is not barred by a 
 twenty years' possession of the premises by the 
 assignor, who claims under the mortgagor, the 
 mortgagee having by the foreclosure suit 
 asserted a paramount claim to the possession, 
 and the premises being sold under that claim. 
 Collins v. Reid etal.,2 Old., 252. 
 
 17. Construction of Statute— Accretion— 
 
 The Statute of Limitations should not be so 
 construed as to protect or be a means of fraud. 
 
 The plaintiff exchanged mud flats not capable 
 uf actual occupation for sedge banks bearing 
 grass, into which plaintiff entered and retained 
 possession for 25 years, no conveyances being 
 executed on either side and, subsequently, as the 
 mud flats became productive by accretion the 
 plaintiff entered and took grass from them also, 
 at the same time claiming title by possession to 
 the sedge banks. 
 
 ffeld, that if the exchange was completed by 
 a mutual surrender of the lands, there was 
 mutual adverse possession, but if not, the parties 
 held permissively from each other and the 
 Statute of Limitations could not apply. 
 
 Held, also, that the fact of such surrender 
 being made is a question for the jury. 
 
 Forsyth v. Griffin, James, 241. 
 
 18. Debt barred by Statute of Limitations 
 
 — No judgment for, against absent debtor per- 
 mitted — The Court will not allow judgment 
 
847 
 
 LIMITATION OF ACTIONS AND SUITS. 
 
 848 
 
 to be entered up against an absent debtor for a 
 debt barred by the (Statute of Liinitutioni. 
 Wilkins, J. disHtnting. 
 
 Smith V. Cvff, 2 Thorn., 12. 
 
 19. Reason fbr rule In aboTe— 
 
 Ptr Ualiburton, J.— "As the Statute of Lim- 
 itations to be taken advantage of must be 
 pleaded, and in this form of action, there being 
 no defendant in Court to plead, it is the duty of 
 the Court to confine the plaintiff to proof that is 
 not affected by the Statute of Limitations." 
 
 McRae v. Woodward, 3 Murd. Epit., 141. 
 
 20. Disability — RemoTal of-R. M., in 
 
 1835, conveyed a portion of his land to his sons 
 W. & K. , and about the same time allowed them 
 to enter into possession as tenants at will of the 
 balance of his property including the house in 
 which he had resided. R. M. died in 1844 
 leaving several children of whom plaintiff was 
 the youngest. In 1847, the rest of the heirs 
 iuoluding plaintiff, who was then under age, 
 conveyed to W. & K. all their interest in the 
 property. In 1870 the plaintiff brought suit for 
 a portion of the land in question alleging that 
 the deed being executed during her minority 
 was absolutely void and of no effect. 
 
 Held, that although the possession of W. and 
 K. must be deemed to be adverse U nm the year 
 1847, when the heirs united in giving them a 
 deed, and that therefore plaintiff's right was 
 barred on that ground, yet that under section 
 9 of 29 Vic. , chap. 12, having brought her action 
 in 1870 and therefore within five years from 
 1 866, she was entitled to recover. 
 
 McKinnon et ux v. Brodie, 3 N. S. D., 410. 
 
 21. Foreclosure suit brought over twenty 
 
 years after mortgage given — Recovery in 
 ejectment meantime — Foreclosure not barred 
 by Statute — Allan McKay conveyed property 
 to plaintiff by a deed, absolute in its terms but 
 admitted to have been given as a security for a 
 debt. Nothing was paid on account of principal 
 or interest by the mortgagor or his heirs, for a 
 period of over twenty years before suit to fore- 
 close, but within that period an action of eject- 
 ment had been brought to recover possession, in 
 which a judgment was obtained, a record filed, 
 and a writ of hab. /ac. pas. issued but not 
 executed. 
 
 Held, that these proceedings prevented the 
 Statute of Limitations from operating except 
 from the judgment. 
 
 McKeen v. McKay, R. E. D., 121. 
 
 29. lex ftorl-Plaintlff; a resident of this 
 
 Province, sued defendant, who carried on IhihI. 
 nnsB in Newfoundland, for a debt contracted 
 there in 1849, A suit had Insen commenced for 
 the recovery of the debt in Newfoundland, but 
 the defendant had obtained a certiticutu of 
 bankruptcy, which by the law of that Colony, is 
 a bar to all suits brought there for debts con- 
 tracted within the Colony. In 1855 the defend- 
 ant promised to pay the plaintiff £50 in thut 
 summer, and the rest by instalments, but no 
 payment was made. The Statute of Limitations 
 was pleaded, to which there was no replication, 
 Per Curiam. — We think judgment ouglit to 
 be entered for the plaintiff. 
 
 Smith v. Stewart et al., 2 Thorn., 417. 
 
 28. Lex fori governs — Plaintiff sued on 
 
 four bills of exchange drawn by himself at (lliis- 
 gow, Scotland, in 18.S6and 18.37, upon the defen- 
 dant, accepted payable four months after date, 
 at the defendant's shop in Glasgow. PlaintifTs 
 right of action was barred in Scotland by 12 
 Geo. 3, c. 72. He was not in Nova Scotia when 
 his right of action accrued, but came for the 
 first time to Nova Scotia within six years of the 
 day of the commencement of this action. 
 
 Held, that 12 Geo. 3, c. 72, does not extinguish 
 the debt, but the remedy only and that there- 
 fore plaintiff could maintain his action here, 
 
 Bri/son v. Graham, 2 Thorn., 271. 
 
 24. lex fori governs— Plaintiff sued for 
 
 goods sold and delivered. Defendant pleaded 
 the Statute of Limitations. Plaintiff replied 
 that at the time tho action accrued defendant 
 was absent from the Province, and that suit was 
 brought when defendant came within the juris- 
 diction of the Court. Defendant demurred. 
 The cause of action had accrued in Prince Ed- 
 ward Island, and it seemed that according to 
 the laws of that Province the debt was barred 
 by the Statutes, but was not barred by the 
 Statutes of Nova Scotia. 
 
 Held, that admitting the debt to be out of 
 date in Prince Edward Island, the plaintiff 
 might nevertheless recover in Nova Scotia, as 
 only the plaintiff's remedy was thereby barreil, 
 and the debt was not extinguished. 
 
 Carvell et al. v. Wallace, 3 N. S. D., 165. 
 
 25. limitations, Statute of— 1866, c. 13, 
 
 8. 9— Omission of in 4th R. S.— Plaintiffs' tes- 
 tator took a deed from the father of defendants 
 in 1846, but the grantor continued in possession 
 until his death, and his children after him down 
 to the time of action brought in 1869. 
 Held, that the Statute of Limitations was a 
 
m 
 
 MAGISTRATES. 
 
 860 
 
 bnr to the action of ejectment, and that section 
 nf the Act of 1860, cap. 12, giving parties five 
 years after the passing of that Act to bring action 
 notwithstanding the expiration of twenty years, 
 did not apply, having ceased to exist and been 
 oniittfd in 4th R. 8., which came into operation 
 in May, 1H74. 
 
 Pattermn ft al. v, McPhenon et al., 
 
 1 R. &C., 116. 
 
 26. N. S. Railway Act of 1880, c. 26- 
 
 Limitation therein cannot be extended to 
 breach of contract — Plaintiff delivoied a plan- 
 ing machine to defendants to be carried between 
 two stations. In placing it on board the oar for 
 tlint purpose, defendants' servants injured the 
 machine by negligence or want of proper appli- 
 ances, and plaintiff brought action for damages. 
 Held, that this was not a suit "for indemnity 
 for any damage or injury sustained by reason of 
 the railway," under sec. 26 of the N. S. Railway 
 Act of 1880. 
 
 Whitman v. The Western Counties By. Co., 
 
 5R. &C1., 405. 
 
 it. Pleading — The debt sued fbr was 
 
 contracted in 1849 ; in 1853 defendants promised 
 to pay. Defendants pleaded the Statute of 
 Limitations and there was no replication. 
 
 Per Bliss, J. — If a party does not reply to a 
 plea, he takes issue upon it ; but when there is 
 a new plea to be given in evidence, there must 
 be a replication. 
 
 Smith V. Stewart et al., 2 Thorn., 417. 
 
 28. Wild lands— Possession of- A party 
 
 claiming wild lands under a deed and having 
 actual possession of a part, has a sufficient con- 
 structive possession of the whole land described 
 in his deed, to bring him within the Statute of 
 Limitations. 
 
 A person who has paid consideration and 
 occupied for twenty years without a deed obtains 
 title by possession, otherwise if consideration was 
 nor paid. 
 
 Lessee of Cunard v. Irvine, James, 31. 
 
 LIQUIDATED DAHAGES- 
 See CONTRACT, 12. 
 
 LIS PENDENS. 
 Notice of, as affecting title— Plaintiffs par* 
 
 chased from W. M. a quantity of hay, described 
 to be growing on a tract of land specified. The 
 
 hay when cut was deposited, by permission of 
 W. M., in a barn on the premises. At the time 
 of the purchase a law suit in reference to the 
 ownership of the land was depending between 
 W. M. and the defendant. One of the plaintiffs 
 knew of the suit, and the other that the title 
 was disputed. A verdict having been found for 
 the plaint'ffs a rule was taken out for a new 
 trial which, it appearing on argument that the 
 defendant had a clear legal title and possession 
 in law, was made absolute with costs. 
 
 McDonald et al. v. Brodie, 2 N. 8. D., 402. 
 
 LOAN SOCIEIT- 
 See BUILDING SOCIET. 
 
 LUNATIC. 
 
 1. Prisoners acquitted on ground of 
 
 lunacy— Custody of—It is the duty of the 
 
 Executive Government of the Province to assume 
 
 the custody and care of persons acquitted of 
 
 criminal charges upon the ground of insanity, 
 
 which by the common law of England is vested 
 
 in the Crown. 
 
 Queen v. Martin, James, 322. 
 
 1. Salt by guardian of, In his own name- 
 In an action by, and in the name of the guardian 
 of a lunatic, for a debt due tht lunatic, the de- 
 fendant did not go into his defence, contending 
 that the action was wrongly brought, and judg- 
 ment in the County Court was given for plaintiff. 
 On appeal, the Court allowed plaintiff to amend, 
 and, defendant contending that there was a. 
 defence on the merits, a new trial was ordered, 
 but without costs, first because the new trial 
 was an indulgence to defendant, as the Court 
 might in such a case give judgment for the 
 plaintiff on the amended record ; secondly, be- 
 cause, had the defendant entered on his defence 
 in the Court below, a new trial would possibly 
 have been rendered unnecessary by his success. 
 Seaman v. Pwter, 4 R. & G., 292 & 495. 
 
 MAGI8TRATES- 
 •.^ee JUSTICES OF THE PEACE. 
 
851 
 
 MANDAMUS. 
 
 862 
 
 MiI5TENANCE AND CHAMTEBTT. 
 
 Tlie doctrine of maintenance and cham- 
 perty are largely modified by the modern cases. 
 Allan et al. v. McE.'ffey, 1 Old., 120. 
 
 MillCIOVS ABBEST- 
 See ABBEST. 
 
 MALICIOVS INJUBT TO PBOPEBTT- 
 Stt CBIMINAL LAW, 19. 
 
 MANDAMUS. 
 
 1. Dismissal of a Professor— Powers of 
 
 the Board of Governors — Powers of the visi- 
 tor — An application was made for a mandamus 
 to compel the governors of King's College, 
 Windsor, to restore W. E. W. a professor of 
 the College, to certain offices from which he had 
 been dismissed for having published in a public 
 newspaper, a letter "incompatible with the 
 relation of a professor to the governing body, 
 and the superior officers of the university and 
 manifesting a contempt of authority likely to 
 lead to subversion of discipline," &c. The college 
 was incorporated under an Act of the Legislature 
 of Nova Scotia in 1789, and a charter was ob- 
 tained from the Crown. Thirteen years later 
 letters patent were issued by the Crown, appoint- 
 ing the Bishop of Nova Scotia visitor of the 
 college. In 1853 a Provincial Act was passed 
 repealing the former Act and re-appointing and 
 re-incorporating the Board of Governors, giving 
 them power to make laws and ordinances for the 
 regulation and management of the college, and 
 providing that the Bishop of Nova Scotia, for 
 the time being, should be tx officio a Governor 
 of the college, President of the Board, and 
 visitor. 
 
 By the original Act an annual charge was 
 made upon the revenue of the Province for the 
 purpose of purchasing lands and erecting build- 
 ings, and certain public officials were made ex 
 officio members of the Board of Governors. 
 
 No notice was given to the professor of the 
 proceedings which terminated in the sentence of 
 removal. 
 
 The affidavit upon which the application for 
 mandamus was made wes headed " In the mat- 
 ter of an application intended to be made to the 
 Supreme Court for a mandamus," etc., 
 
 Held, per Thompson and Rigby, JJ., and 
 McDonald, C. J., that the mandamus should 
 issue ; that the professor was entitled to notice ; 
 that the College being a public corporation estab- 
 lished by public Statute, and t. visitor being 
 deprived of the power to dismiss, the wide range 
 of powers incident to the office of visitor at 
 common law were not conferred upon him, and 
 the Court therefore had power to hear the 
 motion ; that the office of professor was one in 
 relation to which mandamus would lie. AUo, 
 that the heading of the affidavit upon which the 
 application was made was mere matter of de- 
 scription, and was distinguishable from the 
 heading of the affidavit in In re Peier Rom, 
 2R. &C.,596. 
 
 VVcatherbe and McDonald, JJ., dissented on 
 the ground that the sole appeal from the decision 
 of the board was to the visitor, and the latter 
 on the further ground that the heading of the 
 affidavit was bad. 
 
 Re Wilson, 6 B.. &G., 180; 
 6 C. L. T., 447. 
 
 a. Contract with City of Halifax— Besola- 
 
 tion of City Council — Mandamus to compel 
 Mayor to carry out the resolution— Plaintiff 
 oflFered to the City a site on Lockman Street for 
 a City hall, to be erected under Act of 1874, cap. 
 35, for $35,000, payable in City debentures. 
 The City Council resolved to accept the offer, 
 and that the Mayor be authorized "to have 
 debentures issued " for the purchase of the site, 
 and that on the necessary documents being com- 
 pleted, such debentures be handed over to plr.'j)- 
 tiflf, a copy of the resolution being enclosed to 
 the plain tiflf by the City Clerk, but without any 
 instructions or directions to that eflPect from the 
 Mayor or City Council. At the time the offer 
 was made by the plaintiff the title to the land 
 referred to was not in him, and there were 
 mortgages over it to a considerable amount, but 
 plaintiff said in his evidence that he had made 
 arrangements so as to be ready to have the 
 property transferred when the Mayor should 
 perform his duty, and he tendered to the Mayor 
 an imexecuted deed of the lots which were to 
 form the site, and required him to carry out the 
 resolution of the Council. Defendant refused to 
 sign or issue the debentures, and plaintiff prayed 
 for a writ of mandamus to compel him to do so. 
 Held, that the resolution of the Council did 
 not constitute a contract with the defendant, 
 and that in order to the validity of such contract 
 a document under the seal of the corporation 
 was necessary ; that even had the agreement 
 beon formal and binding, plaintiff had not a right 
 to require the Mayor to carry out the resolution 
 
853 
 
 MANDAMUS. 
 
 854 
 
 of the Council until ho had first secured a title 
 to the lands to enable him to perform hia part of 
 the agreement. 
 
 Jennett v. Sinclair, 1 R. & C, 392. 
 
 3. Demurrer to return— Preliminary ob< 
 
 jection, that by the practice of the Supreme 
 Court of Nova Scotia there can be no demurrer 
 to a writ of mandamus, overruled. 
 
 Queen v. The, Warden and Toion Council 
 
 of Dartmouth, 5 R. & G., 311. 
 
 See ASSESSMENT, VI. 4, 5 & 6. 
 
 4. Discretion ofCourt— A mandamus was 
 
 applied for at the instance of the Sessions for the 
 County of Halifax, to compel the Warden and 
 Council of the Town of Dartmouth to assess, on 
 the property of the town liable for assessment, 
 the sum of $15,976 for its proportion of county 
 school rates for the years 1873-78, under section 
 52 of 4th Rev. Stats., c. 32. 
 
 Hdd, that the Warden and Town Council 
 ouglit to have assessed in each year for the pro- 
 portion of the county schoul assessment payable 
 by tiie Town, but that in view of the Act to amend 
 the Act to incorporate the Town (Acts, 1877, 
 c. 40), section 30, of which provided that the 
 sum to be voted at the annual meeting of the 
 Town for the estimates, including ordinary and 
 extraordinary expenses, should not exceed in 
 any year the sum of i$15,000, there was a diffi- 
 culty in the way of issuing the mandamus, as 
 asked for. 
 
 Quaere, whether there should have been a 
 relator. 
 
 Per James, J. — The City of Halifax is not 
 exempted by chapter 32, 4th Rev. Stat., from 
 contribution to the county school rates, but is 
 equally liable with the Town of Dartmouth. 
 
 The Supreme Court of Nova Scotia, without 
 determining whethei" the required assessment 
 was possible, and was obligatory when the writ 
 \tas issued, made the rule ni>ii for a mandamus 
 absolute, leaving tliese questions to be deter- 
 mined on the return of the writ. 
 
 Queen v. Town Council of Dartmouth, 
 
 1 R. & G., 402. 
 
 On appeal to the Supreme Court of Canada, 
 Held, Strong and Gwynne, JJ., dintenting, 
 that the granting of the writ in this case was in 
 the discretion of the Court lielow, and the exer- 
 cise of that discretion cannot at present be 
 questioned. 
 
 Per Ritchie, C. J.— That the Town of Dart- 
 mouth ia not, but that the City of Halifax is, 
 
 exempted by 4th Rev. Stat., c. 32, from contri- 
 bution to the county school rates. 
 
 Queen v. Warden and Council of the Town 
 of Dartmouth, 9 S. C. R., 509. 
 
 5. Intoxicating liquors— Mode of testing 
 
 validity of clause of Act imposing conditions 
 on obtaining licenae- Enactments of the Legis- 
 lature of Nova Scotia prohibiting the retail of 
 intoxicating liquors by unlicensed vendors, and 
 prescribing penalties for such unlicensed vending 
 are within the power of that Legislature by 
 section 92 of the B. N. A. Act, sub-section 9 ; 
 and it would be no defence to an action for such 
 penalty to show that the legislation under which 
 the Sessions were authorized to refuse to grant 
 licenses was ultra virex. The proper course in 
 such case would be a mandamus to the Sessions 
 to compel the granting of the license. The 
 legislation contained in 4th R. S., c. 75, sections 
 32 and 33, is not ultra vires, although it may to 
 a certain limited extent affect trade and com- 
 merce. 
 
 Keefe v. McLennan, 2 R. & C, 5 ; 
 
 2 Cart., 400. 
 
 6. Justices of Peace— Mandamus to com< 
 
 pel them to issue a warrant against defendant 
 for violation of Canada Temperance Act, 1878— 
 An application was made to the Court for a 
 writ of mandamus to compel two Justices of the 
 Peace for the County of Cumberland to issue a 
 warrant against defendant for a violation of the 
 Canada Temperance Act, 1878. 
 
 The Justices had declined to issue the warrant 
 on the ground that the notice to the Secretary 
 of State referred to in sections 5 and 6 of the 
 Act, and required to be filed in the office of the 
 Sheriff or Registrar of Deeds of or in the 
 County, was not regularly filed, there lieing two 
 Registrars of Deeds in the County of Cumber- 
 laud, one at Amherst and one at Parrsboro, and 
 the notice having been deposited only with the 
 former, as a consequence of which the Justices 
 considered that the subsequent proceedings were 
 irregular and that the Act was not in force in 
 the County. 
 
 The proclamation having issued and the elec- 
 tion having taken place and resulted in the 
 adoption of the Act, 
 
 Held, that as the effect of going behind the 
 election would be to create difficulties and mis- 
 chief, the language of the Act must be regarded 
 as directory and not mandatory, and that the 
 mandamus applied for must issue. 
 
 Per McDonald, C. J., and Ritchie, J.— That 
 the Governor in Council being constituted the 
 judicial authority to determine whether the pre- 
 liminaries directed by the Act had been complied 
 
855 
 
 MASTER. 
 
 856 
 
 with, and having determined in the affirmative 
 and issued the proclamation, the regularity of 
 the preliminary proceedings could not be ques- 
 tioned. 
 
 Queen v. Hich, 7 R. & G., 89 ; 
 7 C. L. T., 143. 
 
 7. Nuisance— Right to proceed by manda- 
 mus instead of indictment — The defendant 
 company obtained an Act enabling it to maintain 
 a line of liorse cars in the Tity, but requiring it to 
 provide rails of the most improved pattern, and 
 lay them even with the surface of the streets, so 
 as not to interfere with the passage of vehicles 
 and to keep the roadway in repair within the 
 track and three feet on each side. Defendant 
 having ceased to operate the line the roads fell 
 out of repair and the rails protruded. After 
 the commencement of this suit, which was for 
 a mandamus to compel the defendants to have 
 the rails laid even with the surface, and to put 
 the roads in repair as required by the Act, the 
 City authorities in many instances covered the 
 streets on which the rails were laid, with stones. 
 
 Held, that the City liad a right to proceed by 
 mandamus, and was not obliged to resort to an 
 indictment of the nuisance, or to proceedings, to 
 fine the defendants under the Act of 1870, cap. 
 99, for violation of the provisions of their Act 
 of Incorporation, neither of these courses pre- 
 senting a remedy as beneficial as the proceedings 
 by mandamus, but that the mandamus must be 
 limited in its operation to those streets on which 
 the railway had not been covered by the City 
 authorities, as the action of the City in this re- 
 pect had imposed an unreasonable burden upon 
 the company in removing the stones. 
 The City of Halij'a?: v. The City Railu-ay Co., 
 
 R. E. D., 319, 
 
 8. Rale to qnasb, too late aner return 
 
 day — Res adjudieata — Defendants obtained an 
 order to quash a writ of mandamus on grounds 
 appearing on the face of the writ together with 
 other grounds appearing by affidavit. On the 
 return day of the order defendants obtained 
 from the court in banco, a rule discharging this 
 order, giving defendants leave to moi'e the court 
 on the grounds taken in the order nim. Defend- 
 ants moved the • nrt accordingly and obttvined 
 a rule to quash the vr .it which provided that the 
 defendants should have ten day.^ after the dis- 
 charge of said rule to make their return to the 
 writ. 
 
 //eld, that the motion to quash should bo 
 made before the return day, and that the pro- 
 vision in the rule nisi giving time could not be 
 said to have extended the return. 
 
 //e/d, as to the other grounds taken in the 
 rule, viz : that the application should have 
 been made promptly, that no sufficient matter 
 appeared in the writ, tliat other legal remedies 
 existed, and that the writ required defendants 
 to do an act exceeding their authority, that 
 these grounds could have been taken in showing 
 cause to the rule nixi for the mandamus, and 
 therefore could not form the ground of a motion 
 to quash. 
 
 The further ground was taken that no valid 
 order existed for the issue of the writ as the 
 order was for a peremptory mandamus and the 
 writ was in the alternative. 
 
 Held, that as the court understood in grant- 
 ing the rule, that they were making a rule for a 
 mandamus alternative the matter was re.s adju- 
 dicata. 
 
 Queen v. The Wnrdeii and Town Council 
 
 of Dartmouth, 4 R. & G., 173. 
 
 MANSLAVGHTER- 
 See CRIMINAL LAW. 
 
 MARINE INSURANCE- 
 See INSURANCE, MARINE. 
 
 MARRIAGE LAW-FOREIGN, PROOF OF 
 See CRIMINAL LAW, 4. 
 
 MARRIED 
 
 WOMEN'S PROPERTY 
 
 1884- 
 
 ACT or 
 
 Set HUSBAND AND WIFE. 
 
 MASTER. 
 1. Duties of master In taking an accoant 
 
 — Plaintiff having become insolvent, made an 
 assignment for the lienefit of creditors, whereupon 
 one of the defendants was appointed assignee. 
 The business was reconveyed to plaintiff on his 
 undertaking to |)ay a composition on the amount 
 of his indebtedness for the payment of which 
 another of the defendants became surety, and 
 plaintiff subsequently executed several assign* 
 
857 
 
 MASTER AND SERVANT. 
 
 858 
 
 The. James Fraser, Y. A. D. , 159. 
 
 or vessel- 
 See SHIPPING. 
 
 MASTER AND SERVANT. 
 
 mcnts to defendants to secure advances. De- | satisfy the mind of the Court that it ought not 
 
 fendants liaving taken possession under the last | to be maintained. 
 
 mentioned assignments, the matters in difference . 
 
 between plaintiflF and defendants were referred ! 
 
 to a Master, with instructions to " take an I 4. 
 
 account and report the sum due from either ! 
 
 party to the other of them." 
 
 The Master having reported inter alia that tlie 
 defendants, after paying the other creditors of 
 plaintiffs their respective claims at tiie rate of 
 sixty-two and a half cents on the dollar, iiad ..„..., , .... ,.. 
 
 paid to themselves the full amount of their ^ J- Contract for wopk and labor-M rong- 
 
 claim, and that being of opinion that defendants ^^l dismissal - Measure of damages -Res 
 were not entitled to any greater rate of dividend ^^J^^^^^f * " Incapacity-Burden o proof- 
 . , , . ^, ^, ^ • 1 i ii 4i 1 liiintiil was cncageil by defeiulants through an 
 on their claim than that paid to the other , . , . , • , . 
 
 1 1 1 1- 11 1 .1 „„ „i„„ ,..;*! agent at Prague, Jsohemia, to work in their em- 
 crcditors, he had disallowed the surplus with ; f . , ° . , . 
 
 , , , i-i 1 4i t *u ploy m the capacity of journeyman and assistant 
 
 inteiest, and had credited the same to the ! i ■> , ' • .f ■ i , , xr ,., 
 
 . ' ; superintendent in their glass works at rs ewGlas- 
 
 P ',,,', ^ , ^, ., ... ITT- ; gow. Nova .Scotia. The engagement was made to 
 
 IhUls that under the authorities (Htiigim \. >= \ . , r f 
 
 ' , , , .-, ^ Ti J tr • I. 1 1 \ continue for a period of three years from the 
 
 />^V^4Exuh., 112, and/^o»-rfe« V. /ra(</A, 11 A. .,,,,,..•«., x- r-i 
 
 , ,,„.., .< -Kt ^ • i.'c 1 • I • 'arrival of the plamtitl at Jsew dlasgow at a 
 
 & E., lO.^S, the Master was justified m making, i ,, ,. 
 
 , , si)ecined rate of wages, payable bi-monthly, 
 
 the deduction. ! ' . ° \ / / 
 
 , ^ ., , , , f ., , . . , 11 v Plaiutiff commenced work May 1st, 188.}. JJe- 
 J /.<o, that if he had failed to act as he did It . . ., , .•',., 
 
 ,, , , ., , . e ^\ r< ^ 1 fendants having failed to give him the work 
 
 Wduld have been tlie duty of the Court under . , , . , , . 
 
 ... c 1 <. » • »i 1 ■ , a- contracted for, or to pay wages as agreed, plain- 
 
 the authorities referred to, to give the plaintiff ' ^\ » J= 'i 
 
 tin Ijrought an action and on the 29th November, 
 
 1884, recovered judgment for the amount of 
 
 wages due him at that date. In Feliruary, 
 
 188,"), defendants dismissed plaintiff from their 
 
 On appeal to the Siqn-eme Court of Canada, ] employ, and, on the expiration of the period of 
 
 Htld, that the decision of the Supreme Court three years, he brought a second action claiming 
 
 of Nova Scotia, confirming the report of the ; wages at the rate agreed on from the date of 
 
 Master on the reference must be reversed on | judgment in the former action to the date of 
 
 tliu ground that the Master had exceeded his ' his dismis.sal, and damages at the same rate from 
 
 authority and reported on matters not referred the date of the dismissal to the expiration of the 
 
 to him. period for which tlie original contract was made. 
 
 Doull V. Mcllrtith, 14 S. C. R., 739. | //,i,i^ that if the first suit had determined 
 
 I any issues raised in the second it would be fatal 
 2. Findings of- Requisites to overrule— to any attempt to raise the same (juestions again. 
 The findings of a Master on a matter of account but that as in the first suit plaintiff had only 
 referred to him will not be overruled, unless it | claimed for wages due him up to that date the 
 is clearly made to appear that they cannot be principle of »v s wljudicafn did not apply, plain- 
 sustained by the evidence before him, or tiiat tiff having the right under the contract provi- 
 he has proceeded on some erroneous principle, ding for payment of wages twice monthly, to 
 or mistaken view of the law in making his | sue whenever defendants failed to pa}- at the 
 rt'pwl, ' times or in the amounts agreed on. 
 
 McKay v, Cum7ning.s tt at., '20 is. S. K., I Defendants having sought to justify the dis- 
 
 (8 R. & G.), 537. missal on the ground that plaintiff was incapable 
 
 of doing the work he had contracted to perform. 
 
 the benetit of the amount overcharged. 
 Mcllrcitk V. Doull a al., 7 R. & G. 
 7 C. L. T 
 
 341; 
 , 40t). 
 
 3. Master of the Vlce-Admlralty Court- 
 Report of Where in a (juestion of accounts 
 
 anil disbursements a thoroughly competent per- 
 son has Ijeen selected as referee with the approval 
 of both parties, and he reports thereon after a 
 full examination, those who would take objec- 
 tions to such a report are Iwund to prove their 
 objections by clear and satisfactory evidence. 
 
 Held, that the burden of proving incapacity 
 was on defendants. 
 
 It appearing that the system and appliances 
 ill use in New (Jlasgow for producing glass were 
 different from those to which plaintiff had been 
 accustomed in Bohemia, 
 
 Held, that plaintiff was not guilty of a breach 
 of the implied covenant that he was reasonably 
 
 for it will not be overruled unless there be an skilled and competent for the work he had en- 
 overpowering case made against it which shall | gaged to do. 
 
859 
 
 MASTER AND SERVANT. 
 
 860 
 
 Diunages having been allowed plaintiff in the 
 full amount of the wages agreed to be paid him, 
 and it appearing that he could not speak or un- 
 derstand the language of the country and was 
 incapable of doing any other work. 
 
 Held, that there was no reason for disturbing 
 the verdict. 
 Jeyked v. Xova Scotia Glass Co., 20 N. S. R., 
 
 (8 R. & G.), 388 ; 9 C. L. T., 60. 
 
 2. Contract of mining— Evldence-PIalB* 
 
 tiff had been Lm the employ of the defendant 
 company under Gould, their Chief Engineer, at 
 the rate of $5 a day for the time he was actually 
 engaged. On the 6th Oct., 1874, Tremayne, the 
 London Secretary of the company, wrote to 
 Harrison, then manager in Nova Scotia, in these 
 terms : " It has been agreed that Gray shall 
 receive pay from the company as from the day 
 of Mr. Gould's departure from the works, at $5 
 per day, the terms of his permanent service to 
 be iixed by the board, when the salaries of other 
 oificers are discussed." This letter was shown 
 to plaintiff by a subordinate servant of the 
 company, but without the consent of Harrison, 
 who swore that the whole matter had been left 
 in his hands to deal with by the Board of 
 Management in London. Harrison repudiated 
 the terms contained in the letter of Tremayne, 
 and between the 6th October, 1874, and the 4th 
 Jamuary, 1875, by himself, and through Dudgeon, 
 the treasurer, wrote to plaintiff, informing him 
 that he was to be paid only for the time that he 
 was actually employed. The jury found for 
 plaintiff, allowing $5 per day for every day from 
 August 3rd, 1874, to April 30th, 1875. 
 
 Held, per Young, C. J., with whom Smith, 
 J., concurred, that the letter of Tremayne not 
 having been intended to be seen by plaintiff, did 
 not constitute a contract with him, or if it did 
 that it had been formally repudiated afterwards, 
 and that the verdict must be set aside. 
 
 Per Wilkins, J., with whom McDonald, J., 
 concurred, that the plaintiff having seen the 
 letter of Tremayne without any fraud on his 
 part, and having adopted and acted upon it, was 
 entitled to the amount awarded by the jury. 
 
 Quaere, whether, the Court being eciually 
 divided, there could be any judgment. 
 
 Gray v. The Steel Company of Canada, 
 
 3 R. & C, 24. 
 
 8. Dismissal Of mental servant— Contract 
 
 of hiring — Plaintiff hired with defendant as head 
 gardener, receiving a certain salary per year and 
 a per centage on the fruit of the grapery, and 
 at the time of hiring was in occupation of a 
 small house on the estate. A fellow servant of 
 
 the plaintiff was ordered to go to the grapery to 
 get some vine leaves, and plaintiff, knowing that 
 he had been so sent, told defendant, whom he 
 met shortly afterwards, that if he caught him 
 there again he would kick him out. Language 
 of the same kind was used in presence of anollier 
 servant, and with a personal reference to the 
 defendant himself. After some days, plaintiff, 
 having expressed no regret, was told by defend- 
 ant that he must leave at the end of three 
 months, and at the expiration of that period 
 the defendant instructed his solicitor to take all 
 lawful steps to turn plaintiff out of the house. 
 
 Held, that the conduct of the plaintiff justified 
 the defendant in dismissing him without notice, 
 and that his right to occupy the house ceased 
 with the termination of his service. 
 
 Quaere, whether the English custom allowing 
 the dismissal of a menial servant on a month's 
 notice, without cause, although hired for a year, 
 exists in this Province. 
 
 Fleming v. Hill, 1 R. & C, 268. 
 
 See, also, COUTBACT— 
 
 BILLS OF SALE, 17 & 18. 
 
 4. Liability of master for injury to serrant 
 
 — Where plaintiff was injured by an explosion of 
 gas in defendant company's mine occasioned by 
 an erroneous plan of the workings, but it was 
 not proved that the company had employed 
 incompetent men to superintend the mining, and 
 plaintiff was not employed under special agree- 
 ment. 
 
 Held, that he could not maintain an actioa 
 against the company for the injury. 
 
 Smith v. The Intercolonial Coal Mining Co., 
 
 2 R. & C, 556, 
 
 5. Liability of mine owners for injury to 
 
 employees — Owners of mines are not liable for 
 i an injury to a workman in their employ, caused 
 1 by the negligence of their foreman or superin- 
 tendent, if they have selected proper and com- 
 petent persons to superintend the work, and 
 have furnished them with adequate materials 
 and resources for the work. The negligence of 
 the persons so selected is not the negligence of 
 the master. (See judgment Lord Chancellor 
 Cairns, IVilson v. Henry et al., 19 L. T., N. S., 
 33.) It is not indispensable, though proper, in 
 such case, that the defendant should plead that 
 the negligence was the negligence of a fellow 
 servant of the plaintiff. (See Seale v. Lindnay, 
 11 C. B., N. S. 429.) The party asserting the 
 negligence must prove it, and the negligence of 
 a servant in such a case is not the negligence of 
 the master. 
 
 Campbell v. General Mining Asaocialion, 
 
 IN. S. D.,415. 
 
861 
 
 MEDICINE AND MEDICAL PRACTITIONER. 
 
 862 
 
 6. Porchase by serrant, who misappro* 
 
 priates cash given him for payment — Vendor 
 cannot recover price from master — Where 
 defendant's servant purchased a quantity of cop- 
 per from the plaintiff, for cash, and, having 
 received the money to pay for it, fraudulently 
 retoined it U> his own use, 
 
 Udd, that plaintiff could not recover the price 
 of the copper, it having come into the defen- 
 daut's possession without his being aware of the 
 fraudulent conduct of his servant. 
 
 Almon V. Trem/et, 1 Thorn., {1st Ed.), 89 ; 
 
 (2nd Ed.), 117. 
 
 1. Salary — Action for— Conflicting evi* 
 
 dence— Entry by party — Plaintiff was book- 
 keeper for defendant and claimed a balance of 
 salary due him, alleging that the hiring was for 
 91,600 a year. Defendant contended the plain- 
 tiff's salary was only $1,000, which had been 
 paid in full. Their respective statements as to 
 the terms agreed upon between them were very 
 conflicting, but in corroboration of defendant's 
 was the fact that at the end of the year for 
 which the salary was to be paid the plaintiff 
 entered it in the books as only $1,000. The jury 
 found for plaintiff. 
 Htld, that there should be a new trial. 
 
 McNutt V. McDonald, 3 N. S. D., 175. 
 
 8. Servant not liable for loss or property 
 
 of third party hired by master where loss 
 arose from inevitable accident — Plaintiff was 
 in the habit of hiring horses and waggons to 
 persons requiring them. During his absence 
 from home his wife, contrary to instructions not 
 to hire horses or carriages in hia absence, though 
 the evidence on this point was of a doubtful 
 character, hired to C, one of the defendants, a 
 waggon and several horses, to be used in con- 
 veying a gold crusher from Port Hood to River 
 Dennis. While the team was crossing the 
 bridge, driven by D., an experienced driver, 
 who was joined as co-defendant, and against 
 whom alone the action was prosecuted, one of 
 the horses received injuries by getting a leg 
 through the bridge, in consequence of which he 
 died. The plaintiff's writ contained counts in 
 trespass and trover, but the action was treated 
 throughout as one of trover. A verdict havuig 
 been found for plaintiff, 
 
 Hdd, that there was no evidence of conversion 
 hy the defendant, D., and that he, being merely 
 the servant of C, ought not to be held responsi- 
 ble for an injury which was admitted to have 
 been an inevitable accident. 
 
 Murphy v. Dvihxnty etcU.,2 N. S. D., 294. 
 
 9. Wrongfkil dismissal — Action for— 
 
 Defence of incapacity — Burden of proof- 
 Defendants, in an action for wrongful dismissal, 
 sought to justify the dismissal on the ground 
 that plaintiff was incapable of doing the work 
 he had contracted to perform. 
 
 Held, that the burden of proving incapacity 
 was on defendants. 
 
 Jeykal v. Nova Scotia Glasa Co., 
 
 20 N. S. R., (8R. AG.), 388; 
 9 C. L. T., 60. 
 
 10. Wrongftal dismissal — Measure of 
 
 damages — In an action for wrongful dismissal 
 plaintiff obtained a verdict for the whole aniount 
 of wages from the date of dismissal. Defendant 
 contended that the verdict should have been 
 reduced by whatever sum the plaintiff might 
 have earned. 
 
 Held, that as the verdict disclosed that 
 plaintiff could not speak and did not understand 
 the language of the country, that he was from 
 life long habit incapable of doing any other 
 labor than that of his trade, to engage in which 
 he had come to this country under contract with 
 defendant, and that in fact he could not obtain 
 any employment, there was no reason for dis- 
 turbing the verdijt. 
 
 Jeykal v. Xova Scotia Glass Co., 
 
 20 N. S. R., (8R. &G.), 388; 
 9 C. L. T. 60 
 
 .S'ee, a/£o, NELIdBNCE. 
 
 MEDICINE AND MEDICAL PBACTITIONER. 
 
 1. Assumpsit implied — Surgeon's Fees- 
 Plaintiff, who at the time was visiting surgeon 
 of the City Hospital, performed a surgical 
 operation upon the deceased, of whose estate 
 defendant was administratrix. Dr. McFatridge 
 had been attending deceased in his illness, with 
 Dr. Parker as consulting physician. The latter 
 advised the deceased to have the operation per- 
 formed in the hospital, telling him that plaintiff, 
 as house surgeon for the time, would perfornn 
 the operation, and he, Parker, would assist. 
 Deceased assented to the operation being per- 
 formed by the plaintiff, and it was performed 
 successfully. 
 
 Held, that although the hospital was primarily 
 an eleemosynary institution, yet as there was 
 no by-law prohibiting the house surgeon from 
 charging for services rendered to patients able to 
 pay, and who resorted to the institution for the 
 sake of better attendance, etc., plaintiff could 
 recover on an implied assumpsit. 
 
 Farrell v. McLaren, 3 R. & C, 75. 
 
863 
 
 MERCHANT SHIPPING ACT. 
 
 8G4 
 
 2> Patent medicine— Assignment of right 
 
 to manufacture and sell — Restraining breach 
 of contract — Defcnflaiits assigiisd to plaintiffs 
 the exclusive right to manufacture and sell, 
 within the Dominion of Canada, the Island of 
 Newfoundland, and the W. I. Islands, a prepara- 
 tion designed for the treatment and cure of pul- 
 monary diseases, known as " I'littner's Emulsion 
 of Cod Liver Oil." Defendants reserved the 
 right to manufacture and sell the emulsion in 
 the United States, hut agreed, as part of the 
 consideration for tiic purchase by plaintiffs, that 
 they would not sell the emulsion, or any other 
 emulsion in the preparation of which cod liver 
 oil was used, or wliich was essentially or sub- 
 stantially the same as that assigned to plaintiffs, 
 within any part of the described limits. Subse- 
 quently, the defendants commenced the manu- 
 facture and sale, in Canada, of an emulsion 
 which, though sold under the name of "liudd's 
 Emulsion," was essentially and substantially the 
 same as that assigned to plaintiffs, and in the 
 preparation of whicli plaintiffs' emulsion, though 
 varieil from so far as to create a scientific, but, 
 for trade purposes, an immaterial difference, was 
 largely imitated. While the copying of any of 
 the particulars specified in the trade mark was 
 avoided, appearances, names, and other indicia 
 were adopted in such a way as to have the 
 effect of causing defendant's emulsion to be 
 bought as that sold to plaintiffs, and to lead the 
 public to believe that defendants' emulsion, if 
 not the real and only genuine " I'uttner's Emul- 
 sion," was essentially and substantially the same. 
 
 A perpetual injunction having issued to re- 
 strain the manufacture and sale of " Budd's 
 Emulsion," 
 
 Iltld, on appeal, that defendants were guilty 
 of a clear violation of their agreement, and that 
 the injunction must be sustained. 
 
 Also, a large number of leading physicians 
 having testified that they were in the habit of 
 prescribing cod liver oil emulsion for the use of 
 their patients, and that it was a highly useful 
 article, that the preparation could not be classed 
 with nostrums and quack remedies, which the 
 Court refused to interfere to protect. 
 
 Al^o, that the restriction contained in the 
 agreement Ijctween the parties, in view of the 
 suljject matter of the contract, was not un- 
 reasonable or void, as in restraint of trade. 
 
 Irish et al. v. PiUtner et al., 7 B,, &0., 405. 
 
 3. Physician residing abroad may sue 
 
 here for services rendered abroad although 
 not registered here — The plaintiff a physician 
 practising in Newfoundland, performed medical 
 services for the defendant also resident there. 
 
 Hf.ld, that the plaintiff could recover in this 
 Court notwithstanding he was not registered 
 under 4th R. S. cap. 8, sec. 22. 
 Wilmot V. Shaw, 2 R. & (J., 343 ; 2 C. L. T., 96. 
 
 4. Practitioners of Medicine and Sur- 
 gery—Act requiring registration— Prosecution 
 for infraction — Construction of R. S. (5lh 
 series), chap. 24, sec. 26— Defendant was prose- 
 cuted by the Provincial Medical Board, a Ijody 
 corporate, for an infraction of the provisions of 
 chapter 24, R. S. (5th series), "Of Practitioners 
 of Medicine and Surgery," by " professing by 
 public advertisement, card, circular, sign, or 
 otherwise to practise physic or surgery." the 
 defendant nov being at the time properly regis- 
 tered under the Act. 
 
 The section under which the proceedings were 
 commenced read : "If any person not registeieil 
 or licensed under the provisions of this chapter 
 practises physic ... or professes by public 
 card, circular, sign, or otherwise, to practise 
 physic, . . . or to give advice therein, or in 
 anywise to lead people to infer that he is quali- 
 fied to practise physic ... in this Province, lie 
 shall forfeit and pay the sum of .?20.00 for each 
 day that he so practises, or leads people to infer 
 that he is so practising." 
 
 Held, affirming the decision of the County 
 Court Judge for District No. 1, that the inten- 
 tion of the Act was to prevent persons not 
 registered under it from practising, and that the 
 defendant having professed to practise and 
 give advice, and having actually practised and 
 given advice as a piiysician and surgeon, although 
 not qualified to do so by registration, was liable 
 to the penalty imposed. 
 
 Weatherbe, J., dissentin;/. 
 
 Provincial Medical Board v. Washiiujton, 
 
 7R. &G.,470; 8 C. L. T., 16. 
 
 MERCANTILE LAW AMENDMENT ACT, 1865. 
 Section 7 ofthe Mercantile law Amendment 
 
 Act of 1865 (28 Vict., ch. 10) has a retrospec- 
 tive operation as regards rights of action ; but 
 does not apply to actions commenced ))efore its 
 
 passage. 
 
 Coidson V. Samjster et al., 1 Old., 676. 
 
 MERCHANT SHIPPING ACT- 
 See SHIPPING. 
 
865 
 
 MINING LAW. 
 
 866 
 
 MESNE PROFITS- 
 Ste USE AND OCCUPATION. 
 
 MILITU. 
 1. Called out in aid of cItH power— The 
 
 Militiii Act, Acts of 1868, c. 40, as amended by 
 tlie Acts of 1873, e. 46, and the Acts of 1879, c. 
 Xi, authorizes the culling out of tiie :nilitia hy 
 tlie senior otfiuer present in any locality, in aid 
 uf the civil power, for the purpose of preventing 
 or siii)prcssing riots when thereunto reciuiretl, in 
 writing, whicii writing shall express on the face 
 tiiercof the actual occurrence of a riot, disturb- 
 iint'c or emergency, or the anticipation thereof. 
 When so called out the liability to pay for the 
 services of the militia is imposed upon the Muni- 
 cipality for which such services are re(|uired. 
 
 Several companies of militia in the Munici- 
 piility of Cape Breton were called out in pursu- 
 ance of a requisition, which rcail : "It having 
 been represented to us that a disturbance has 
 occurred and is still anticipated at Lingan, be- 
 yond tlic power of the civil power to suppress, 
 you arc tlicrefore hereby ordered," &c. 
 
 //'/(/, tiiat in order to make the Municipality 
 liable for the nuvintenance and pay of the 
 inililia, tiie requisition must comply strictly 
 with the Statute, and that as it failed to ex- 
 press on its face the actual occurrence of a riot, 
 disturbance or emergency, or tlie anticipation of 
 any, but only set out a representation that a 
 disturbance had occurred and was still antici- 
 pated, which representation might have been 
 found on investigation to be unwarranted by 
 the circumstances, the Municipality was not 
 lialde. 
 
 Haul v. The. Municipality of Cape Bretmi, 
 
 7 R. &G.,260; 
 7 C. L. T., 349. 
 
 On appeal to the Supreme. Court of Canada, 
 
 Held, that the requisition was sufldcient. 
 The Statute also provides that the Munici- 
 pality shall pay tlie expenses of the service of 
 the militia when so called out, and, in case of 
 refusal, that an action may be brought by the 
 officer commanding the corps, in his own name, 
 to recover the amount of such expenses. 
 
 llttd, Strong, J., ditmentim/, that where the 
 commanding officer died pending such action, 
 the proceedings could be continued by his per- 
 sonal representative. 
 
 Crewe- Read v. County of Cape Breton, 
 
 14 S. C. R., 8. 
 28 
 
 2. Power to amerce County for charges 
 
 for militia called out to quell a riot- -Neither 
 the Dominion Acts cf 1868, c. 40, and of 1873, 
 c. 46, nor 4th R. S., c. 21, empower the .Supreme 
 Court to amerce a County for charges incurred in 
 calling out the active militia, under the Dominion 
 Act of 1873, e. 46, to quell a riot. 
 
 In re Amercement of Cape Breton Co., 
 
 2R. &C.,410. 
 
 MINING LAW. 
 
 1. Agreement to work mine Tor share or 
 
 profits — Plaintiff made an oral agreement with 
 (i., the owner of a gold claim, to work a portion 
 of the claim, plaintitl' receiving two thirds of the 
 profits after paying all expenses. Defendant, 
 acting as Sheriff of the County of Hants, levied 
 upon and sold certain gold taken out of the 
 mine by plaintiff, on an execution against (1. 
 Plaintiff having brought trover for the gold so 
 taken, and a verdict having passed in his favor, 
 Held, that under the agreement to work the 
 mine for a share of the profits, no interest in the 
 mine was transferred to plaintiff within tiie 
 meaning of section four of the .Statute of Frauds. 
 McDonald v. Gtldtrt, 3 N. S. D., 551. 
 
 2. Appeal flrom Commissioner of Mines 
 
 — Affidavit for — \V. H. made application for a 
 lease of certain gold mining areas, which was 
 opposed, and a contestation took place before the 
 Commissioner of Mines as to the rights of the 
 contending applicants. Pending the contest and 
 before the decision, W. H. died. The decision 
 being against the deceased, his widow, who was 
 appointed sole executrix, gave notice under the 
 Statute of her intention to appeal, and made an 
 affidavit embodying the re(juirenients of the 
 Statute, and filed the bond recjuired. The 
 affidavit was made in Toronto before a Notary 
 Public for the Province of Ontario, 
 
 Held, that the affidavit was not made in 
 accordance with the requirements of the .Statute, 
 and that the appeal must be set aside for irregu- 
 larity. 
 
 Construction of 5tli R. .S. , c. 107, s. 5. 
 
 Re Hedley, 20 N. S. R., (8 R. & G.), 130; 
 8C. L. T., 376. 
 
 3. Appeal from Commissioner of Mines- 
 Cross-examination of witness stopped— Party 
 aggrieved — In re Sjiehnan distinguished — One 
 of several applicants for a mining area produced 
 evidence at the hearing before the Commissioner 
 of Mines to prove that he was the first applicant. 
 
867 
 
 MINING LAW. 
 
 868 
 
 In tlic course of the invcHtigution a witness 
 agiiinst the appellant was examined, and while 
 he was being cross-examined on a subject of 
 importance to the inquiry his cross-examination 
 was stopped by the Conunisaioner. 
 
 Hdd, that this was sutticient ground on which 
 to sustain the appeal, and that the appellant 
 was the party aggrieved ; tlie case diticring from 
 the case in re Spelman in that there the applica- 
 tions were sinniltaneous. 
 
 I'tr Rigby, J. — Costs do not follow, as a mat- 
 ter of course, in such cases, but should be given 
 in such a case as the present. 
 
 Ptr Weatherbe, J. — Costs of appeal follow, 
 as a matter of course, 
 
 III re Appeal Stejthen Sireet, 3 R. & G., 397. 
 
 4. Application for mining areas— Condi- 
 tions precedent to entry — Leases in unpro- 
 claimed districts— Limitation of number of 
 areas— Irregularities in application- Signature 
 of Commissioner to lease — Construction of 
 terms in Mines Act— Conflicting applications 
 — Errors in description— The provisions of the 
 Mines Act for the appointment of arbitrators, 
 the making of an award and the payment of 
 damages where a mining lease is obtained over 
 private lands, and no agreement is made with 
 the owner, are conditions precedent to the 
 right of entry. 
 
 Leases may be granted in unproclaimed as well 
 as proclaimed districts. 
 
 The provisions of the Act limiting the n ..mber 
 of areas to be included in a lease is directory 
 only and disregard of it by the Commissioner 
 will not invalidate a lease. 
 
 It is too late to take exception to defects or 
 irregiilaritiee in an application for a license to 
 search, or in the license itself after the appli- 
 cation for the license has been received and 
 acted upon and a lease issued, unless fraud is 
 shown upon the part of the licensee in respect of 
 a matter material to his right to get a lease. 
 
 Where application is made for a license to 
 search and a lease is subsetjuently obtained, 
 without the license to search having actually 
 issued, the non-issue of the license to search is 
 no objection to the lease. 
 
 In signing a lease it is not incumbent upon the 
 Commissioner of Mines to attach to his signa- 
 ture his title of office, if the capacity in which 
 he signs appears sufficiently from the body of 
 the document. 
 
 The expressions "district" and "gold dis- 
 trict " in the Statute do not necessarily mean a 
 "proclaimed gold district." 
 
 The fact that an application for a license to 
 search conflicts with a previous application, will 
 
 I not invalidate cither the application or the suhsc- 
 
 I (juent lease, if at the time of the granting of ihu 
 lease the first application has expired witiiout 
 
 ! having been acted upon. 
 
 I Defendants' application described the areas 
 applied for as "commencing at a bircli iiee 
 
 ; marked A. D., and being on the cast side nf 
 Salmon River alntut five miles above the bridge." 
 It appeared that the tree was about '21HHJ feet 
 distant from the river, and considerably less 
 than five miles from the bridge in a direct line. 
 //eld, that the tree being otherwise sufiiuieiit- 
 ly identified, the description was not vitiated Ijy 
 the errors as to locality ami distance. 
 FieUUnij et al. v. MoH el al., G R. & «., 3.39; 
 
 6C. L. T., 491. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, affirming the judgment of the Court 
 below, that where a mining lease is obtained 
 over private lands in Nova Scotia, the lessees 
 must obtain from the owners of the land permis- 
 sion to entei' either by special agreement or in 
 accordance with the provisions of the Mining 
 Act, 4th R. S. c. 9. 
 
 Mining leases may be granted in all districts 
 whether proclaimed or unproclaimed. 
 
 A mining lease is not invalid because it in- 
 cludes a greater number of areas than is xn'ovideil 
 by the Statute, such provision being only direc- 
 tory to the Commissioner. The issue of a lease 
 cures any irregularities in the application for a 
 license, or in the license itself in the absence of 
 fraud on the part of the licensee. 
 
 Fieldinfi et al. v. Mott et al., 14 S. C. R., •254, 
 
 5. Aspbaltum— Meaning of "Mines and 
 
 Minerals" — Asphaltum is included in tlie ex- 
 ception in certain royal grants in the Province 
 of Xew Brunswick of " all coals and also all 
 gold, silver, and other mines and minerals. " 
 
 The words "mines and minerals" in the 
 exception are to be understood in their popular 
 and ordinary, and not in tiieir scientific meaning. 
 
 Trover will lie in this Province for minerals, 
 which have Ijeen taken from a mi*:d out of the 
 Province and removed here. 
 
 Genner v. Gan Company, James, 7-- 
 
 6. Forfeiture of mining areas— Notice- 
 Service of— Intituling aflidavits and rule urn 
 for certiorari — Filing affidavits — Proceedings 
 were had before the Deputy Commissioner of 
 Mines at Halifax to obtain the forfeiture of a 
 mining property at Montague, owned by defen- 
 dant. The defendant resided at Londonderry anil 
 had agents at Montague, but no service of notice 
 was made on either him or them, and neither he 
 
869 
 
 MINING LAW. 
 
 870 
 
 nor they knew anything of the proceedings until 
 iifttT tlic iirens were forfeited. The notice was 
 jKisted l)y a person wlx) appeared to lie interested 
 in procuring the forfeiture, and who swore that 
 iicitlifr Toliin nor any agent or person employed 
 on the premises coultl he found in the tlistrict on 
 wlioin personal service could be made. The 
 matter heing brought up by artiorari, 
 
 III hi, tiiat in order to disj>ense with perscmal 
 service, evidence should liave been given of a 
 lionaMt search or that defendant was out of the 
 Province. 
 
 The parties applying for the forfeiture entitled 
 the process below, " Th<i (Jmtii v. Tohin," 
 
 Htld, that the applicant had a right to use 
 the same title in the subsecpient proceedings in 
 iliis Court. 
 
 A rule was granted to compel the parties sus- 
 taining the forfeiture to tile their affidavits on a 
 (lay, previous to the hearing, to be named by 
 
 the Court. 
 
 Quetn V. Tobin, 2 R. & (J., 305. 
 
 1. Forfeiture of mining areas— Notice to 
 
 mortgagee — Proceedings were taken to forfeit 
 certain gold mining areas, and the notice pursu- 
 ant to Statute was addressed to the defendant, 
 wlio was the mortgagee and not the owner of 
 tlie areas. 
 
 Htld, that the Commissioner of Mines had 
 
 no jurisdiction for want of notice to the owner. 
 
 Queen v. Eke, 4 R. & G., 130. 
 
 8. Forfeiture— Proceedings to forfeit gold 
 
 areas — Sufficiency of pleadings — The Com- 
 missioner of Works and Mines, to an action of 
 trespass, pleaded proceedings taken to forfeit 
 the areas in question. 
 
 Htld, that the allegation that "no person could 
 be found upon whom to make service of the 
 notice " of process to forfeit was sufficient with- 
 out alleging that no person could be found in the 
 gold district within which the areas were 
 situated, and that a plea setting out the proceed- 
 ings taken in substantially the terms of the Act 
 was sufficient. 
 
 Wallace v. Creelman, 6 R. & G., 546. 
 
 9. Injunction to restrain from working or 
 
 interfering with mine— Where plaintiflFs had 
 brought an action against defendants for an 
 alleged tresp.-iss on their mine, and it appeared 
 that the mine was within the limits of a lot 
 assigned to the party, under whom plaintiffs 
 claimed, on a survey attended by all the parties 
 then interested ; that the lot had been occupied 
 from that time by the plaintiffs and those under 
 whom they claimed, by consent of the proprietor 
 
 ' of an adjoining lot, under whom the defendants 
 i claimed ; and that no interruptiim of that occu- 
 pation had been attempted for a [)eriod of nine 
 ' years, or until defendants interposed. 
 
 The Court refused to dissolve an injunction 
 ' which had been granted on tx imrlc. affidavits, 
 ; on behalf of the plaintiffs, to restrain the de- 
 fendants from working or interfering with the 
 mine. 
 
 HamiltOH ft al. v. liroini i.l nl., '1 Old., 260. 
 
 10. Jurisdiction of Commissioner to forfeit 
 
 lease — Sufficiency of allegations — In an action 
 brought for trespasses to plaintiff^s mining 
 areas, defendant justified as Commissioner of 
 Mines under a forfeiture, and set out in one of 
 his pleas, iutir alia, that all proceedings recjuisite 
 by law to be taken to effect a forfeiture of said 
 lease were taken, and all necessary notices set- 
 ting out defaults and breaches were duly given, 
 and the <lefendant being such Commissioner duly 
 gave judgment forfeiting said lease ... in 
 the form and manner prescribed by law. 
 
 Held, that this plea did not set out with 
 sufficient particularity the steps taken to give 
 the Commissioner jurisdiction to forfeit the 
 
 lease. 
 i Wallace v. Creelman, 5 R. & G., 418. 
 
 I 11. Lease— Contemporaneous applications 
 
 for lease of mining area. — Priority. — Appeal 
 allowed on the ground that material point was 
 not considered — After investigation before the 
 Connnissioner of Mines to <leterniine which of a 
 ' number of applicants for a lease was entitled, 
 ' the Commissioner decided in favor of one O'Toole 
 ; on the ground of priority. The several appli- 
 i cants were all present at the Mines Office on the 
 morning on which the areas were presumed to 
 be open for application, an<l on the market 
 clock commencing to strike, a struggle took 
 place between them in the endeavor each to be 
 the first to bring his application to the notice 
 of the Commissioner. O'Toole had entered the 
 area under a lease from Wallace the original 
 lessee and the present appellant, but had 
 claimed that the agreement between himself and 
 Wallace had terminated sometime before the 
 application. The lease was in writing and was 
 not put in, and there was nothing to show that 
 the proviso for terminating it was one of which 
 O'Toole could avail himself. The Commissioner 
 in his decision intimated that he had nothing 
 to do with this branch of the inquiry. 
 
 Held, that the Commissioner was wrong in 
 deciding the matter on the mere question of 
 priority, and should have considered the point 
 that, as the holder of a chattel interest under 
 Wallace, O'Toole could not lawfully do any act 
 
871 
 
 MINING LAW. 
 
 872 
 
 to defeat the title nf his lessor ; and as this point 
 had not been considered the appeal must he sus- 
 tained with costs. 
 
 He. Gold Miniwj Areax, H^arerley, 
 
 4 R. &<i.,'2«0. 
 
 12. Lease -Forfeiture of— Setting aside- 
 Notice of forfeiture — A lease of certain coal areas 
 granted to S. was declared forfeited by the Com- 
 missioner of Mines on the ground that the areas 
 had been abandoned and not etf'ectively and con- 
 tinually worked for the space of one year. IS. 
 was absent from the prf)viuce at the time the pro- 
 ceedings M'ero taken, and the only notice given 
 him was by means of a paper posted upon a cliff 
 near tlie sua siiore, tlie areas being under water. 
 Tlie notice was defective for want of detiniteness 
 tts to the charges against S. , and moreover, there 
 was no evidence given before the Conuniasioner 
 that the Sheriff wlio posted the notice had made 
 any inijuiry to ascertain wliether there was any 
 agent or person employed in connection with the 
 premises upon whom, in tlie absence of S., the 
 notice could have been served, nor was any evi- 
 dence given as to the locality of the cliff upon 
 which tiie paper was posted, or its contiguity to 
 the areas in ((uestion. 
 
 Hdd, that the preliminary notice being de- 
 ficient in so many points all proceedings founded 
 upon it were void, and therefore the forfeiture 
 must be set aside. 
 
 In re Sword's Lease, li N. S. 1)., 389. 
 
 13. Lease-Forfeiture of— Parties seeliing 
 
 forfeiture— Lachea—Tiie relators in this case 
 souglit to have a lease granted by the Crown 
 of certain gold mining areas set aside on tiie 
 ground that it had been granted improvidently, 
 and in derogation of relators' rights. They 
 had taken out a lease in April, 1862, but were 
 in arrears for rent thereon in February, 1863, 
 when a new lease was taken out and some rent 
 paid on its account, but none of the rent then 
 overdue paid. After working on the areas for a 
 month all operations were discontinued, and in 
 October of the same year the Gold Commissioner 
 declared the lease forfeited, and granted the 
 areas to other parties. This lease also being 
 forfeited, another lease was granted to third 
 parties in 1866, aid in 1868 the relators sought 
 to have this lease set aside, alleging that they 
 had been misled as to the law by the Deputy 
 Gold Commissioner, but this was contradicted. 
 Held, that the relators had not shown any 
 ground for the lease being set aside, they having 
 forfeited all claim to the areas, and that, in any 
 event, they were too late in applying for relief. 
 Queen v. Snoio etal,,3 N. S. D., 373. 
 
 14. Lease— Right to lease— Priority of 
 
 application - 
 
 On appeal to the Priin/ Council, 
 
 Held, that 4th Kev. Stats., c. 9, contemplates 
 the grant of both licenses and leases in all dis- 
 tricts, whether proclaimed or unproclaimeil. The 
 first applicant, whether for u license or u leasf, 
 is entitled. Applications must bo made in 
 writing to the Commissioner or Deputy Com- 
 missioner. A licensee is entitled to a leu^<u 
 under s. 4'2. " Occupying and staking off" is not 
 a condition precedent to all leases in an unpro- 
 
 claimed district. 
 
 yot reported heloir. 
 
 Molt V. Lock-hart, 8 App. Cas., 568; 
 
 .-)2 L. J., P. C, 61. 
 
 13. License to search— Application for- 
 
 Deacription— 5th R. S., c. 7, s. 39— The appli- 
 cati(m for a prospecting license over certain 
 mining areas detiued the locus : " Heginning ut 
 a stake marked \V. M. L., standing about one 
 mile westerly from Malega Lake, in the County 
 of Queens." At tiie time the application was 
 made tiiere was no stake marked as described at 
 the locality indicated, from which the descrip- 
 tion could start, but a stake marked as described 
 was put down soon afterward. 
 
 Helil, that the application was bad as not 
 accurately defining by metes and bounds the 
 lands applied for, within the meaning of the 
 Mines Act, oth R. S., c. 7, s. .S9. 
 
 Per McDonald, J.— That the reference hi the 
 Statute to a description by metes and bounds, 
 referred to metes and bounds existing at tiie 
 time of the application. 
 
 Quaere, per McDonald, C. J. — Whether the 
 stake having been subsequently placed, the appli- 
 cation, in the absence of fraud, was valueless as 
 between the applicants and the Crown. 
 
 He Maleija Barrens, ex parte McLeod, 
 
 20 N. S. R., (8R. &G.), -14. 
 
 16. License to search assignable — A 11' 
 
 cense to search for minerals granted under 
 chapter 9, R. S. {4th series), is assignable. 
 
 In re Milner's Ajipeal, 2 R. & C, tyil 
 
 n. Licenses to search-Only four valid 
 licenses can be granted over area — A license 
 to search for minerals, other than gold, was 
 granted to the relators under Sec. 86 of Chap. 
 9, 4th R. S., to expire 21st May, 1874. Previous 
 to iis expiration, four other licenses, to search 
 over the same area, were granted to the relators, 
 which were to expire respectively, 22nd May, 
 1875 ; 23rd May, 1876 ; 26th May, 1877 and 27tli 
 May, 1878 ; the area containing only four and 
 a quarter square miles. On the 28th of May, 
 
873 
 
 MINUTES OF JUDGE. 
 
 874 
 
 1877i defendants having a licenBe to search over 
 iin urea overlying in part the area of the relators, 
 iipplied for a license, which was afterwards 
 granted, to work one square mile partially over- 
 lying and including within its boundaries the 
 area under license to search to the relators. An 
 order iiiti having l)een taken to restrain defend- 
 ants from interfering. 
 
 J/(l(l, that over the area of four and a quarter 
 miles first above referred to, not more than four 
 valid licenses to oearch could be granted under 
 R, S., Caj). 9, Sec. 91, that the relators' fifth 
 license to search, which was to expire May 27th, 
 1878, was invalid, and that on the 28th of May, 
 1877, there was no obstacle to the defendants 
 obtaining the license to work granted to them. 
 
 Oliittr Dictum, that it was no objection to the 
 license to work, tliat it was taken out in the 
 name of one only of the defendants, Fraser, for 
 their joint benefit, all the defendants having 
 had an interest in the licenses to search, although 
 taken out in the name of Fraser only. 
 
 Attornfy -General v. Fraxer et al, 
 
 R. E. D.,275 
 
 On appeal from the Judge in equity to the court 
 in hanco, 
 
 Iltld, that the practice of the office was wrong 
 in granting more than one license to search, 
 villi right of renewal, to the same party over 
 the same area, that on this ground the license 
 to search relied on by relators was invalid, and 
 that without respect to defendants' title, the 
 injiuiction must be refused, but without costs, 
 as both parties had acted under an erroneous 
 view of the law. 
 
 Attorney-General v. Fraser, 3 R. & C, .Sol. 
 
 18. Partnership — Interest in mine — 
 
 Agreement as to— Evidence — 
 
 On appeal to the Supreme Court of Canada, 
 Held, affirming the judgment of the Supreme 
 Court of Nova Scotia, that in a suit for a share 
 of the profits of a gold mine where the plaiutiflF 
 relied on an agreement by the defendant for a 
 transfer of a portion of the latter's interest in 
 such mine for valuable consideration, the evi- 
 dence was not sufficient to establish a partner- 
 ship between the parties in the working of the 
 mine, and the suit was dismissed. 
 
 Unreported below, 
 Stuart V. Matt, 14 S. C. R., 734. 
 
 19. Proclamation of gold district— Pre* 
 
 requisites to applications for area— Cochran's 
 Hill, Sherbrooke, was proclaimed a Gold Dis- 
 trict on June 3rd, 1868. On the 13th of the same 
 
 month the relator, not being awaro of the pro- 
 clamation, made application for ten areas, in 
 accordance with the terms of chapter 25, R. S. 
 (.Srd series), section 36, describing the same 
 by metes and bounds. Previous to this several 
 applications for areas had been made, but none 
 of them gave a description of the areas applied 
 for by metes and bounds. On the 19th June, 
 the areas in question were located and given to 
 defendant. 
 
 ffdd, that something more than a mere pro- 
 clamation is required before applications for areas 
 can be made under any other section of the Act 
 than section 36. Areas must be laid ofif in a 
 particular way — plans prepared, &c. 
 
 Held, alio, that the application of the relator 
 was made so in accordance with the spirit and 
 provisions of the Act, as to give him a right to 
 claim a lease as against prior applicants whose 
 applications failed to comply with the provisions 
 of the law. 
 
 Per Wilkins, J. — The defendant being in {ws- 
 session under lease from the Crown, is not to be 
 regarded as a trespasser or intruder on the lands 
 of the Crown. 
 Attorney-General v. McDonald, 2 N. S. D., 125. 
 
 MINOR, DEED BY- 
 'S'ee DEED, 35. 
 
 MINUTES OF JUDGE. 
 
 1. Appeal flrom reftisal of Judge of County 
 
 Court to amend his minutes — 
 
 See AMENDMENT, IV., 3. 
 
 2. Are conclusive as to the eridence- 
 
 Halifax Banking Company v. Worrall et al. , 
 
 4 R. & G., 482. 
 
 3. Certiorari set aside where taiien on 
 
 ground that Judge of County Court had 
 refused to take down certain evidence— Court 
 refused to amend the minutes — 
 
 See CERTIORARI, 59. 
 
 4. Counsel moving on bis own notes of 
 
 trial, in the absence of the Judge's minutes, 
 must verify them by affidavit. 
 
 Stephenson v. Dulhanty, James, 339. 
 
 5. Duty of Judge to report charge in 
 
 minutes — 
 
 See JUDGE, 4. 
 
875 
 
 MONEY COUNTS. 
 
 876 
 
 6. Evidence put In below, but not re- 
 ported up— 
 
 Sef. EVIDENCE. 54. 
 
 7. Eiplanatlon of minutes by Judge given 
 
 to Court on argument — 
 
 Ste JPD6B, 5. 
 
 8. Motion for new trial must be on 
 
 Judge's Iminutes — The Court will not uUow 
 
 counsel to move for new trial upon leave granted 
 
 upon circuit, except on Judge's minutes of trial. 
 
 Copp V. Etttr, James, 304. 
 
 MI8DEMEANOK8- 
 Ste CRIMINAL LAW. 
 
 MISDIRECTION- 
 See NEW TRIAL. 
 
 MISFEASANCE- 
 See NBOLIGENCE-TRESPASS. 
 
 MISREPRESENTATION- 
 See FRAUD AND MISREPKESENTATION. 
 
 MONET COUNTS. 
 
 1. Accommodation note - Recovery of 
 
 money paid to retire, under common counts 
 for money paid — Plaintiff, O'C, brought an 
 action to recover from defendants, W. and E., 
 money paid to retire an accommodation note for 
 $6.38.17, made by O'C. in favor of W., and in- 
 dorsed by W. and E., and negotiated by E., 
 dated January 9, 1874, the declaration contain- 
 ing the common coinits and a count on a guar- 
 antee. The note was afterward renewed for 
 $4.S8, April 13th, 1874, plaintiff having paid the 
 difference, and a memorandum was produced 
 dated April 13th, 1874, signed by both W. and 
 E., certifying that the $438 note was mere 
 accommodation to E., but at the maturity of the 
 note for $438, plaintiff was obliged to retire it. 
 
 Defendant E. withdrew his pleas at the trial. 
 Defendant \V. admitted signing a paper dated 
 May 10th, 1873, certifying that a note for *77S 
 of that date was made by plaintiff for aceoiiuno- 
 dation, and that ho, \V., was to pay the same 
 without recourse to plaintiff. W. admitted alno 
 that the origin of the note for $038. 17 was a noto 
 for $778 or $780, but thought that the memoran- 
 dum of May 10th, 1873, referred to a different 
 note from the one last mentioned. The jury 
 found that the $778 noto referred to in the 
 memorandum of May 10th, 1873, was the origin 
 of the transaction out of which the suit arose, 
 the $0.38.17 note and the $438 note being simply 
 renewals of the $778 note, and the jury found 
 for plaintiff for amount claimed. 
 
 Held, that the evidence of the memorandum of 
 May 10th, 1873, was admicsible, that the liability 
 of W. under that undertaking was not dis- 
 charged by the fact that both he and E. after- 
 wards signed a certificate inconsistent with it, 
 and that the verdict could be upheld under tiie 
 conunon counts for money paid. 
 
 O'Connor v. Wallace et al., 1 R. & C, 92, 
 
 2. Account stated — Memorandum— Con- 
 sideration— Promise to pay the debt of another 
 — Plaintiff had a claim against defendant anil 
 had also a claim against defendant's brother. 
 Defendant having agreed to assume both debts 
 signed a memorandum as follows : " 1881, Oct. 
 21. To balance per settlement at this date §S0. 
 I acknowledge the above amount to be correct, 
 and promise to pay it forthwith." 
 
 ffeld, that an account stated must be in rela- 
 tion to an antecedent debt or dealings betMeeu 
 the parties, and so far as the account against 
 the brother was concerned, it was not so. An 
 account stated cannot be made out of an original 
 contract. 
 
 A/w, that to enable plaintiff to recover as on 
 an original contract, consideration for assuming 
 the brother's debt should have been shown. 
 
 Fraser v. McLeod, 6 R. & O., 286; 
 6 C. L. T., 452. 
 
 3. Account stated— To make, not sufficient 
 
 merely to strike balance — Defendant made a 
 note of hand to S., which was indorsed to plain- 
 tiff, who received |>ayments on account of it 
 from time to time from the indorser. Defen- 
 dant made no payments, but, after six years 
 from the date of the note, made a new note to 
 plaintiff for the balance due on the original note, 
 the stamps on which, bearing date identical witli 
 the date of the note, was for the single duty, and 
 was affixed by plaintiff on the day subse(j(uent to 
 the delivery of the note to him. 
 
877 
 
 MONEY COUNTS. 
 
 878 
 
 Hfld, that the Rtaniping wan inaiittkiont, and { A pe<llar was informed that he would not Im 
 thiit the note uouhl not l>e received on the trial | allowed m sell oil in the town of Dartmouth 
 M M\ licknowledgment to take the caHO out of without a license, and rather than stop his 
 tliu Statute of Limitations, that the payments business or contest the righl ho paid the fee. 
 liy the indorser did not inure to prevent the The County Court Judge held that the money 
 upcriition of the Statute as against the maker, i having been paid voluntarily could not be 
 mill that the more striking of a balance as be- j recovered. 
 
 twven tlie parties did not constitute an account Held, reversing this judgment, that the money 
 Btivtcil to take the case out of the Statute. could lio recovered back under the count for 
 
 McFatridijt v. Hunter, 3 R. & C. , 289. j money liad and received. 
 
 Hancock v. Town of Dartmotith, 
 
 2 R. k (!., 129. 
 
 4. Action for money paid — PlalntllTs 
 
 assignor giving note for defendant's benefit 
 — liarHay v, (looch — Plaintiff's assignor gave 
 his promissory note for the amount of a pro- 
 
 7. Court will not aid partj to recover 
 
 money paid, in fVaud of creditors, to third 
 initiiii on a policy of marine insurance on a | party — In /mri delicto — In an action for money 
 vcxscl of which said assignor and the defendant , had and received, the defendant pleaded, by way 
 witli otiicrs were part owners. The note M'as i of set off, a promissory note given by plaintiff 
 never paid and the policy stipuliited that in the ' to defendant. From the evidence it was appar« 
 event of the premium not being paid the com- | ent that tlie transactions between tlie parties out 
 Jinny might cancel it. Plaintiff as assignee in j of which the present cause of action arose were 
 Ihinkiiiptcy sued tlie defendant for his share of intended to defraud the creditors of plaintiff, and 
 the premium as money paid. i the plaintiff and defendant were in pari delicto. 
 
 //t/'/, that whatever might bo plaintifTs rights ' Htld, that such being the case, the plaintiff 
 Imil tiie note been accepted as a payment and ; should not be aided by the Court in enforcing his 
 tlie defendant releosed, there could be no action [ contract, and the verdict for him must be set 
 for money paid in the present case. | aside. 
 
 V. Oooch, 2 Ksp., 571, dis- 
 
 liarclay tt al. 
 tingiiished. 
 
 Lickie V. Bknkhom, 3 R. & (»., 387 ; 
 3 C. L. T., 43. 
 
 Blake v. Stewart, 2 N. S. D., 70. 
 
 8. Money deposited with betting agent- 
 Action for— Joinder— Payment made jointly 
 _ . .. ^ ,. , but from individual funds — An action was 
 
 5. Action to recover money paid under , ,. . „ „„ o,nn „i„ i i ^i. ;„♦;»;„ 
 
 ... „ , , /. / 1 i i • J, . brought to recover SilOO, placed by plaintiff in 
 
 mistake— Knowledge of facts at time of pay- .,, , , , ^, , r i \ r .u c 
 
 L ,.. . ..^ , , r , . • .. . . the hands of the defendant for the purpose of 
 
 ment—rlaintiff and defendant m settling their , ^,. , . n^u i ^ i ■ 
 
 ,_ . , . , . r , . , . betting on a boat race. 1 he bet was made in 
 
 uttiiira on dissolution of iheir co-partnerslup, , ^, ,.,.«., i ^ ., 
 
 , . . , , . , . the plaintiff s na-^\e, but the money was con- 
 
 entereil into an accounting by which it was , ., ' , , , ^. • ,, , 
 
 , , ,..«.,,, ^„,„ ■>„ f I ' tributed by several i-arties in small sums, and, 
 
 shown that plaintiff had drawn .?318.86 from the 
 pivrtnersliip funds in excess of the sum drawn by ; 
 ilefeiuhiiit, which defendant contended was due ' 
 from plaintiff to him, but which plaintiff insisted ' 
 was due to the partnership, so that only half : 
 the amount was due to defendant. I'laiiitiff 
 finiUly yielded to defendant's contention, and paid 
 over the money. Becoming satislied afterwards 
 that his own view was correct, he brought 
 action, after the lapse of about a year, to recover 
 the amount improperly paid over. 
 
 Held, that having paid over the money with | 
 full knowledge of the facts, the very point now 
 m controversy having been discussed at the 
 settlement, the plaintiff could not, after the 
 lapse of a year, during which he had carried out | 
 m all respects tho settlement agreed upon, apply 
 to have tiie mistake corrected. 
 
 Mitener v. Oanton, R. E. D., 125. 
 
 6. Count for money had and received 
 
 to recover money p.aid under compulsion — 
 
 although no arrangen.ent was made, plaintiff 
 stated in his >.vidence tl.at several parties were 
 interested to their respeotiv •^ amounts, and if he 
 had won they would have expcited their money, 
 and he would have l)een obliged to pay them. 
 Plaintiff countermanded the bet before the de- 
 fendant parted with the money, and there was 
 no clear evidence to show that defendant, as 
 betting agent for plaintiff, had become bound 
 before the bet was so countermanded. 
 
 Held, that the contributors could not sue 
 jointly, but that plaintiff was entitled to recover 
 back, not the whole amount, but only his own 
 share of the money deposited, for which judg- 
 ment must be entered in the court below. 
 
 i?o.s.« V. Harri'ii/ton, 3 R. & G., .325; 
 3C. L. T.,44. 
 
 9. Money had and received— Findings of 
 
 jury — Defendant took a mortgage for $11,402 
 from one John Werner on certain gold mining 
 
879 
 
 MONEY COUNTS. 
 
 880 
 
 property, and signed a memorandum acknow- 
 ledging that in the mortgage was included a 
 debt of 1500 due by Werner to plaintiff, to be a 
 second charge after defendant's debt. Plaintiff 
 testified that defendant afterwards told him that 
 he had received $7469.18 in payment of the gold 
 mining property, and promised to pay plaintiff 
 the $500 mentioned in the memorandum. The 
 defendant denied this admission, but the jury 
 found for plaintiff. 
 
 Held, that under the evidence the plaintiff 
 could recover on a count for money had and re- 
 ceived, and that the verdict could not be dis- 
 turbed. 
 
 UNoir V. Wallace, 1 R. & C, 247. 
 
 10. Monej paid— Action for— Defendant, 
 
 by letter dated at Sydney, C. B., asked the 
 plaintiff to send him a specified quantity of 
 liquor in bond which plaintiff accordingly did, 
 executing a bond in the usual way under the 
 Customs Act of 1867, conditioned to deliver the 
 goods without alteration or diminution at the 
 Port of Sydney within ninety days. The goods 
 were shipped under a bill of lading by which the 
 master undertook to deliver them at the Port 
 of Sydney Bar, w-hich although in the same 
 harbor, is a different port from that of Sydney. 
 The goods were never entered and plaintiffs 
 were obliged, under their bond, to pay the 
 duties. 
 
 Held, that the request of the defendant in his 
 letter was to be understood as a recjuest that 
 plaintiff shouhl enter into the bond ; that plain- 
 tiff could recover on a count for money paid, 
 without proof of any subsequent request, and 
 that it was no objection that the bill of lading 
 made the goods deliverable at Sydney Bar, as 
 the defendant could have paid the duties at 
 Sydney and had them landed at the Bar. 
 
 Fooler tt al. V. Lamie, 3 R. & C, 269. 
 
 11. Money paid by mistalte— Liability to 
 
 refund — Privity — R., of Yarmouth, having 
 consigned fish to Antigua, instructed his agents 
 to transmit proceeds by cable to tlie Bank of B. 
 N. A. in Halifax. The agents, tlirough their 
 ckik, applied to plaintiff bank for a cable 
 draft for §.S,0(tO on New York, for which they 
 gave their own cheque, and received an order in 
 cyj)lier to Maitland, Phelps & Co., in New 
 York, to pay the amount to credit of Rogers to 
 tlie Bank of B. N. A. The latter bank then, 
 with the consent of Maitland, Phelps & Co., 
 communicated with tlie defendant bank that 
 their account "was credited with $3,000, pay- 
 ment by Maitland, Phelps & Co., advised from 
 Colonial Bank of Antigua, account Rogers." 
 
 The defendant bank at once charged the amount 
 to the New York agency of the Bank of B. N. 
 A. , and credited the amount to Rogers on ac- 
 count of overdue bills. 
 
 Held, that although the money had come into 
 the hands of the defendant bank owing to tlie 
 mistake of Rogers' agent in not transmitting the 
 money to the Bank of B. N. A. at Halifax, as 
 instructed, the plaintiffs had no title to it, hav- 
 ing been paid by Rogers' agent for their draft, 
 and not being liable to return the money. 
 The Colonial Bank v. The Exchange Bank; 
 
 5 R. & G.. 215. 
 
 On appeal to the Privy Council, 
 
 The plaintiff bank, being under instructions 
 from R. to remit his moneys to a bank at Hali- 
 fax, through the mistake of its agents, piiiil 
 them to a New York bank for transmission to 
 the defendants, who, on being advised thereof, 
 debited the New York bank, and credited R. in 
 account with the amount thereof : and l)eing 
 afterwards advised of the mistake, claimed to 
 retain and use the moneys in reduction of R.'s 
 account with them. 
 
 Held, that on being advised of the mistake, 
 the defendants were bound to repair it, iiml 
 that the plaintiff bank had a sufficient interest 
 in the moneys to recover them as moneys re- 
 ceived to their use. 
 
 Colonial Bank v. Exchamje Bank of Yarmouth, 
 L. R., 11 App. Gas., 84. 
 
 12. Money paid— Recovery of considera- 
 tion for notes on count for money paid— 
 The notes sued on were given in renewal of a 
 previous note which was given in consideration 
 of plaintiff retiring a bill of exchange on which 
 the defendant was liable as drawer. 
 
 Held, that if the plaintiffs could not recover 
 on the notes they could recover on the count for 
 money paid, which was the original considera- 
 tion. 
 
 Sotilhtr ct al. v. Wallace et al., 20 N. S. R., 
 
 (8 R. & G.), 509. 
 
 Aftirnted on appeal to the Supreme Court of 
 Canada, Wallace v. Sou/her, 9 C. L. T., 210. 
 
 13. Money paid under mistalic of facts- 
 Want of knowledge of the facts must be 
 pieaded and shown — Judgment was given in 
 the plaintiff's favor in the County Court in an 
 action to recover a sum of money paiil on a 
 contract for the purchase and sale of a qu.mtity 
 of trees, which it was alleged defendant hail 
 failed to deliver. 
 
 The sale of trees was made in August, 18$'2; 
 
881 
 
 MONEY COUNTS. 
 
 882 
 
 they were shipped to plaintiff in November of 
 the same year, bnt were never received by him. 
 The defendants were partners at the time of sale, 
 but dissolved partnersliip in November or De- 
 cember, 1883. 
 
 Plaintiff alleged that he had paid defendant 
 $•280, on January '2nd, 1884, but the only pay- 
 ment appeared to have been by setting off pri- 
 vate debts due by King, one of the partners to 
 plaintiff against the price of the trees. It was 
 urged on behalf of the plaintiff at the argument 
 but not pleaded, that at the time he paid the 
 money lic had no knowledge of the failure to 
 ship the trees. 
 
 HM, that the plaintiff in order to recover 
 
 must show that he was not aware at the time 
 
 lie j)aid the money of the failure to ship, and that 
 
 there must be a new trial with leave to plaintiff 
 
 to anund. 
 
 Culhert v. McKeen et nl., 20 N. S. R., 
 
 (8 R. & G.), 1. 
 
 14. Money received— Action for— By a 
 
 bill of lading, a certain (juantity of lumber was 
 stated to be shipped by C. & J. M. & Co., the 
 plaintiffs, on board bngantine "Annie" (the 
 property of plaintiffs) lying at Port Medway, 
 bound for Demm na, to be delivered to defend- 
 ant or his assij^us. Together with the bills of 
 l.uling, defendant received a letter, instructing 
 him to sell the cargo and remit proceeds to 
 T. & C. J. & Co., to credit of account of plain- , 
 titl's. The letter was unsigned, out there was 
 evidence that it had bee)i written for and on 
 account of plaintiffs alone, and it was indorsed, 
 "letter from C. & J. M. & Co." There was 
 conflicting evidence as to the property in the 
 (.'oods, the weight of evidence preponderating j 
 for plaintiffs, who had purciiased the lumber , 
 from C. it S., and the invoice accompanying tiie ; 
 bill of lading and letter oi instructions was 
 liciuled " invoice of cargo of lumber sliipped by 
 ('. & S.," etc., and was signed by C. & S. IJe- 
 fciidunt sold the cargo and remitted tlie proceeds 
 to C. & S. , and action was brought by plaintiffs 
 on tlie common counts as for money received to 
 their use. 
 
 fJdil, that, after the sale, the defendant held 
 the proceeds for the benefit of the plaintiffs, and 
 in remitting them to C. & S. did so in his own 
 wrong, and that the verdict, which was for 
 ilefcndant, should be set aside. 
 
 Morton €t al. v. McLtoil, 1 R. & C, 71. ! 
 
 i 
 
 15. Money received- Action for, against I 
 
 Sheriff— Plaintiffs iiaving recovered a judgment 
 and issued an execution against the judgment I 
 debtors were about bringing action against the | 
 
 defendant, the Sheriff, for negligence in the 
 execution of the writ, whereupon defendant, by 
 his attorneys, wrote plaintiffs, asking permission 
 to be allowed to issue .">n execution against the 
 debtors in order that the Sheriff " might be able 
 to find sufficient property to save himself from 
 loss." 
 
 Plaintiffs gave the permission to defendant to 
 issue the execution "on his own responsibility 
 and to be considered totally irrespective and 
 apart from the suit we are now about to bring 
 against the Sheriff." The execution was accord- 
 ingly issued and ^200 collected which the Sheriff" 
 declined to pay over until the suit for damages 
 was determined. An action was brought for 
 money had and received. 
 
 Held, that the verdict for defendant must be 
 sustained. 
 
 Per Weatherbe, J. — That under the cor- 
 respondence the money collected was to be 
 held for the purpose of indemnifying the defend- 
 ant from loss in the proceedings to be taken 
 against him, and that until the matt< r was 
 settled plaintiffs were estopped from rlaiming 
 the money so collected. 
 
 Bank of British Xorth America v. Btll, 
 
 4R. &(i., 121. 
 
 16. Recovery on common counts for 
 
 money paid where party could not recover 
 on agreement not complying with Statute — 
 Plaintiff, who had purchased defendant's stock 
 in trade and leased his premises at S., gave de- 
 fendant his note for §200 in consideration that 
 defendant would sell the good will of his busi- 
 ness to plaintiff, and would not interfere with 
 him for the term of five years. This agreement 
 was not in writing. Defendant, within the 
 period of five years, returned to S. and set up 
 business there, so as to interfere with plaintiff. 
 Hdil, that while plaintiff could not recover 
 for breach of this agreement, not l)eing in 
 writing, and not to be performed witliin (me 
 year, he could recover under tlie common count 
 for money paid, and that his verdict for !?200 
 must be sustained. 
 
 Meek v. Gass, 2 R. & C, 243. 
 
 17. Sale of lands— Recovery of consider* 
 
 ation on failure to complete — Evidence — 
 In order to recover back money paid l)y plaintiff, 
 under an agreement for sale of lands to him, on 
 the ground of failure of consideration, plaintifT 
 must give evidence of the terms of the agree- 
 ment. 
 
 McDonald v. McDonald, James, 41. 
 
S83 
 
 MORTGAGE. 
 
 884 
 
 MORTGAGE. ; 
 
 1. Administratrix with will annexed,' 
 
 purchase of real estate by, when personal ; 
 assets of testator sufficient to pay off incum- I 
 brance— Subsequent parol agreement to sell i 
 part of said land null— Compensation money | 
 for land, right to and how to be treated — 4th ' 
 R. S., c. 36, s. 40— i 
 
 See CONTRACT, S. ' 
 
 i 
 
 2. Amount due on mortgage -Calculation | 
 
 of, where other dealings — A. held tliree mort- i 
 gages, amounting to £6tK), of property tlie e<iuity ' 
 of redemption in wluuh was purchased by IJ. in i 
 1814. There were various dealings between A. j 
 and B., who were brothers— cash paid by B. to '■ 
 
 A. and cash advanced by A. to B., and also i 
 professional accounts by A. against B., but no j 
 regular account made till 18,3.3. In that year 
 an account of all transactions between A. and 
 
 B. since 1814 was made and signeil by B. This 
 account commenced l)y charging B. with a balance 
 of £40 due by him to A. in 1814, and in the debits 
 of that year B. was also charged witli £900 as 
 the amoimt due by liim on the mortgages. The 
 payments made by B. were regularly credited 
 in each year, and the professional items and 
 advances charged against him. The Ijalance 
 was struck once a year anil was made to bear 
 interest. Interest was allowed on eauli pay- 
 ment from its date and interest on the charges 
 was debited only from the close of the yearly 
 accounts. On the account tlnis adjusted and 
 settled in 1833, tiiere was a balance against B. 
 of £1400. A. agreed to take certain lands from 
 B. at the price of £.5(X). A. also agreed to de- 
 duct £100. The balance was tlius reduced to 
 £800. B. acknowledged this balance to be 
 correct and promised to pay it. By a subse- 
 <|uent memo. A. agreed to give up a further sum 
 of £M leaving tiie balance £750. In 1834 the 
 three mortgages were assigned to plaintiff as a 
 security for £i)(JO, and no subsequent payments 
 appeared to hax-e been made. In 1854 a bill was 
 filed to foreclose tliese mortgages, and on the 
 <leath of tiie plaintiff was revived. Decree was 
 )iad for plaintiff and the Master was ordered to 
 report tlie amount due on the mortgages. The 
 Master finally made report in wliich certain 
 sums were credited as having been paid in dis- 
 charge of the mortgage, and us to certain other 
 sums also claimed to iiave been paid in discharge 
 thereof, reported that he could not decide there- 
 on and returned the evidence. 
 
 Held, tiiat it remained for tiie Court to make 
 that certain whicli the Master had left unsettled. 
 
 Held, uIko, that the balance £7.50 ought to be 
 considered as consisting of the sum of £690 for 
 
 principal, and £60 for interest on the niortgages, 
 
 and that therefore plaintiff was entitled to 
 
 £7.50, and interest on £690 from 18.33 to time 
 
 of sale. 
 
 Uniacke v. Brundiije el al. , 2 Thom. , 57. 
 
 3. Assignee under Insolvent Debtors' Act 
 
 — Liability of— Surplus proceeds — Adverse 
 possession — The claim of an assignee of the 
 equity of redemption in mortgaged premises for 
 surplus proceeds remaining after the sale of 
 premises on foreclosure of the mortgage, is not 
 barred by a twenty years' possession of the 
 premises l)y the assignor, who claims under the 
 mortgagor, the mortgagee having by tlie fore- 
 closure suit asserted a paramount claim to tiie 
 possession, and the premises being sold uiider 
 that claim. 
 
 Semble, the possession of the assignor of an 
 equity of redemption is not adverse to the as- 
 signee, unless shown to l)e in opposition to iiis 
 
 will. 
 
 Collins V. Reid et al., 2 Old., 252. 
 
 4. Bond accompanying mortgage-Mort- 
 gagor sells equity of redemption— Foreclosure 
 
 — Action on bond — Parties — Defendant, a 
 member of the Nova Scot!.'. Building .Society, 
 obtained an advance and gave his mortgage and 
 bond, after which lie sold his equity of redemp- 
 tion, and a suit was brought to foreclose tlie 
 mortgage without making him a party or giving 
 liiiu notice. The land was bouglit in by the 
 Society for a sum less than the costs in tlie fore- 
 closure suit. An action was then brought 
 against the defendant on his bond. An ecjiiit- 
 able plea was pleaded, under whicli defeniUint 
 gave evidence tliat the Secretary of the Society, 
 upon defendant asking for a release of his l)onil, 
 replied that it would be a good deal of expense 
 and nothing would ever come against him, luid 
 no application was thereafter made to him iot 
 dues or fines, the notices being sent to the pur- 
 chaser. 
 
 Held, that the Secretary liad no power to 
 make the arrangements alleged, to which llie 
 Directors had not assented, and that tlie defen- 
 dant, being a member of the Society, was bound 
 to know the limits of the Secretary's authority ; 
 that, although the rules of the Society restricted 
 them to the advancing of money upon real estate 
 security there was nothing to prevent them 
 from taking the defendant's bond in additimi, 
 even if tliey could not take the bond of a 
 stranger. That the fact of a sale under foreclo- 
 sure did not prevent the Society from suing on 
 the bond, so long as they liehl the land. That 
 tlie decree against the defendant could uot in- 
 
885 
 
 MORTGAGE. 
 
 886 
 
 cliule the costs of the foreclosure suit, to which 
 he was not a party, but that he was not entitled 
 to credit for the proceeds of the foreclosure sale, 
 as they did not amount to the costs in that suit, 
 and that the trustees were the proper plaintiffs. 
 Almon et al. v. liu'«:h, R. E. D., .362. 
 
 5. Consideration for,— Contemplation of 
 
 insolvency— Plaintiffs, as assignees under the 
 Insolvent Act, sought to have certain mortgages 
 decreed to he void, which were made by the 
 defendant Smith, within thirty days of demand 
 made on him to assign, followed l)y an assign- 
 ment. The evidence was conflicting, but the 
 Court drew from it the inference that .Smith 
 finding liimself in difficulties, applied to the 
 Iknk for ?.S,(X)0, in the belief tluit, if obtained, 
 it would enable him to arrange with his more 
 pressing creditors and avert the insolvency which 
 must otherwise ensue ; that the agent of the 
 Bank first led him to believe that the advance 
 would be made, but the directors refused, and, 
 instead of making the advance reiiuired tiie 
 mortgages to secure existing liabilities ; tiiat 
 defendant consented to make them, encouraged 
 by tlie agent to believe ihat if he did so further 
 actomniodation would be afforded, but the Bank 
 hining secured itself and considering the further 
 acconunodation could not safely be afforded, 
 declined to make any further advances and in- 
 solvency ensued, as Smith had anticipated. At 
 tlie time the mortgages were given, the insolvents 
 paper was lying overdue in the Bank, and the 
 agent of the liank, on the execution of the mort- 
 gage, told him that he could not expect an ad- 
 vance till after the expiration of thirty days. 
 
 Plaintiffs having .sought relief first, on the 
 ground that tlie mortgages were ma<lc in consid- 
 eration that the liank would advance iJSOOO, 
 which would have prevented insolvency, and 
 secondly, that thej' were given in contemplation 
 of insolvency, and with intent fraudulently to 
 impede an<l delay creditors, 
 
 Ihlil, as to the first ground that the consid- 
 eration nnist be ascertained from the langiiagt; 
 of tin; instruments which referreil to existing 
 indebtedness and not rulvaiices, and that Smith 
 could not be heard to alleged differently ; but 
 that on the second ground the mortgages must 
 1)6 decreed to be void as against the plaintiffs 
 and creditors of the insolvent. 
 
 Lowjii-orth ft al. \. Merchants' Bank of 
 
 Halifax cf al., R. E. D., '25.'). 
 
 6. Construction of agreement to release 
 
 mortgage— Plaintiff brought action to redeeni 
 a mortgage, setting out an agreement in writing ^ 
 by the defendant to release it on being paid one ' 
 
 half of the principal of the mortgage and interest 
 in twelve months, plaintiff agreeing to give up 
 certain claims against the defendant. The 
 Master construed the agreement, according to 
 plaintiff's contention, as requiring payment of 
 one half the balance due at the time of the 
 agreement while defendant contended that it 
 meant one half the original principal. Evi- 
 dence was given in support of both construc- 
 tions. 
 
 Held, that, independently of any evidence, 
 the Master's view of the agreement was incorrect 
 and that there was no necessity of referring the 
 case back to the Master, as the court had the 
 materials for ascertaining the amount due. 
 
 Spinney v. Puijdey, R. E. D., 398. 
 
 7. Deed absolute In terms— Claim to baye 
 
 it decreed a mortgage— Defendant took a con- 
 veyance of land from A. F. LeBlanc in the form 
 of an absolute deed, dated 26th July, 1864, and 
 at the same time executed a bond to reconvey 
 upon repayment of the consideration money of 
 the deed within two years. At the expira- 
 tion of that period defendant asked LeBlanc 
 whether the money would be repaid, or he 
 should keep the land, to which LeBlanc replied 
 that he would prefer that defendant should keep 
 the land. The bond was given up to defendant 
 and he look the land, allowing LeBlanc to live 
 on it, but neither rent nor the principal or the 
 interest of the money advanced by defendant 
 was paid, who afterwards sold the land for 
 a larger sum than the amount of his advances. 
 LeBlanc afterwards became insolvent, but at 
 the time of his giving up the property he was 
 not indebted to any of the creditors who had 
 claims against him when he went into insolvency. 
 His assignee sought in this ."iction to have the 
 deed decreed to be a mortgage. Decree for 
 defendant with costs. 
 
 Henderson v. Come.au, R. E. 1)., 87. 
 
 8. Deed absolute in terms — Decreed a 
 
 mortgage— Plaintiff, being indebted to several 
 persons, conveyed property to his son, under an 
 agreement that the sou should li(iuidate the 
 debts, and the plaintiff should have six years to 
 pay him such amounts as he should advance, 
 plaintiff to remain in possession in the meantime, 
 and if he failed to repay the amounts, the laiul 
 sliould become absolutely the property of the 
 son, who, contemporaneously with the execution 
 of the deed, delivered a bond conditioned for 
 the fulttlment of the agreement. The son after- 
 wards conveyed the property to Dunn, who was 
 aware of the terms of the agreement. 
 
 Held, that the transaction was in effect a 
 mortgage, and that Dunn could not claim to 
 
887 
 
 MORTGAGE. 
 
 888 
 
 hold the land as security for an alleged claim 
 against the plaintiff, which he had discharged, 
 and which was not mentioned in the original 
 agreement, but should reconvey the land on 
 payment of the amount due on the agreement 
 between plaintiff and his son, less any income 
 derived by Dunn from the land. 
 
 Knotrlan v. Dniiii tt al., R. E. 1)., flOi. 
 
 0. Deed absolute in terms — Decreed a 
 
 mortgage -Defendant, on March 22, 1861, con- 
 veyed to J. .1. Marsliall certain real estate, by 
 an instrument in the form of an absolute deed, 
 but which defendant contended was given as a 
 mortgage to secure a debt due Marshall. On 
 January!, 1861, Marshall signed a memorandum 
 acknowledging the receipt of £78 18s. 4d., 
 from defendant on account of the property, 
 "leaving a balance of £171 12s. lid., which, 
 when paid to me, and the interest thereon, I 
 bind myself to re-convey the said property," 
 etc. , and there were other memoranda showing 
 ihat Marshall had treated the conveyance as a 
 mortgage. In January, 1868, defendant, having 
 omtinued in possession of the land ever since 
 the execution of the conveyance, became the 
 tenant of Marshall under a lease then entered 
 into. After tlie death of J. J. Marshall, plain- 
 tiflf, claiming under his will, brought an action 
 of ejectment against the defendant. 
 
 H(ld, an equitable plea having been pleaded, 
 that the conveyance from defendant was a 
 mortgage, and tliat the relation of mortgagor 
 and mortgagee was not altered by the fact of 
 the lease being made in 1868. 
 
 Marshall v. SUd, R. E. D., 116. 
 
 10. Deed in Tee simple made to party 
 
 by mortgagee, with consent of mortgagor — 
 Estoppel— Plaintiff 's father mortgaged a lot of 
 land to defendant, and subsequently defendant 
 with tlie ccmsent and by tiie direction of the 
 fatlier, conveyed the lot in fee simple to X. M. 
 After the death of tlie fatiier, plaintiff lirought 
 suit under his will against defendant for the 
 land. 
 
 Hdd, that the father by consenting to the 
 conveyance of the land in fee simple to N. M., 
 was estopped from redeeming it, and as plaintiff 
 was in no better position than her father, judg- 
 ment should be for defendant. 
 
 McLeod v. Camfhdl, 3 N. S. D., 406. 
 
 11. Deficlenc}' on sale of mortgaged 
 
 premises — Practice to recover balance — When 
 the hind foreclosed and sold does not bring the 
 amount due the application should be for an 
 order to show cause why an execution should 
 
 not issue for the balance, and not for an order 
 absolute in the first instance. 
 
 Northup V. Jmu, 2 Thorn., 2,32. 
 
 12. Delivery, presumptlTe evidence of- 
 
 See DEED, 18 and 24. 
 
 13. Equitable mortgage— Proposal unac> 
 
 icepted— Defendant had mortgaged a vessel to 
 
 ; Smith, and as a number of creditors were pressing 
 him, he wrote a letter to .Smith consenting that 
 this mortgage should be held as security for such 
 creditors on condition that they should give 
 time and assist in selling the vessel, and that 
 the vessel should not be sf)ld for less than a 
 stipulate<l amount. Tiie conditions were r.ot 
 accepted, but one of the creditors named in the 
 letter in which the proposal was made got a 
 separate mortgage of the ecjuity of redemption 
 to secure his own claim. 
 
 Held, that the letter was at the most a i)ro 
 posal unaccepted, and not an equitalde nicirt- 
 gage in favor of the parties named, and that 
 plaintiffs' title must prevail over any interest 
 
 , created by the letter. 
 
 I Quaere, whether even the acceptfvr.ce of the 
 terms would have created an ecjuitable mort- 
 
 \ Hart i-l a/, v. Maijnm et al., 6 R. & (J., .'141. 
 
 14. Estoppel — Fraud — PlaintiflT brought 
 
 suit to foreclose a mortgage made by defemlant, 
 : who alleged in her answer that siie had lit'en 
 I induced to sign it by the fraud of Thos. S. 
 Fowler. Her testimony as to the imposition 
 j alleged to have been practised upon her was 
 \ contradicted by Fowler, and it was in proof that 
 she had re-executed the instrument in the pre- 
 I sence of the clerk of plaintiff's solicitor, who 
 : had deferred paying over the money in order to 
 assure himself that defendant understood the 
 transaction. There was also evidence tliac 
 defendant was aware of the nature of the instru- 
 ment shortly after signing it, and did not repu- 
 ■ tliate it, but entered into negotiations to obtain 
 security from Fowler who had retained tlie 
 : money advanced on the security of the mortgage. 
 I The Court in view of the evidence, concluded 
 that defendant when she signed tiie instrument 
 i must have understood its nature, and lieUl that 
 I whether she did or did not understand it, she 
 was estopped, as against plaintiff, from saying 
 that she was not aware of it contents. 
 
 Kmnearv. Silver, R. E. D., 101. 
 
 15. Execution of— Presumption of pay* 
 
 ment — Rebuttal of— A document forty-live 
 years old, in terms a mortgage of real estate, 
 
889 
 
 MORTGAGE. 
 
 890 
 
 WHS witliout a seal, and liad no trace, mark or 
 impiession of any seal ; Init it contained the 
 usual fcKtalum clause before the sign;.*,'"-': of the 
 parties, and the usual form, " signed, sealed, and 
 delivered in the presence of," before that of the 
 wiuic'.sses. In the registry of the alleged niort- 
 jjug'', two years after its date, the registrar had 
 pliiL'i'd opposite the signatures Iwth of the alleged 
 mortgagor and his wife (who signed by marks), 
 tin' usual mark, [L. S.] The wife of the alleged 
 niortgiigor had also acknowledged her release of 
 dower, before a Justice of the Peace, and 
 the ii^jsignment of the alleged mortgage, two 
 years after its date was under seal. The 
 alleged mortgagor, fifteen years before action 
 liroiiglit, verbally acknowledged that the debt 
 seeiued by the alleged mortgage was a just 
 <le1it, but declined to give any further security 
 r)r to pay the money, alleging poverty as a 
 reiisim, and asking time to consider, and 
 shoitly afterwards positively refused to sign 
 any papers, or to take any other course in the 
 mutter. No payment <;n account of tlie alleged 
 iniirtgage had been made for more than forty 
 yeiirs befoie action bi'ought, except six dollars 
 fur interest thirty-one years before the issue of 
 tlie writ, which was immediately returned on 
 the alleged mortgagor pleading poverty, and 
 was not credited on the back of the alleged 
 mortgage, nor in the account book. 
 
 //eld, in an action for foreclosure of the alleged 
 mortgage, Young, C. J., and Dodd, J., dixstntiwi, 
 tliiU the existence of seals to the alleged mort- 
 gage at the time of its signature might be pre- 
 sumed. 
 
 Pir Bliss, DesHarres, and Wilkins, JJ. — That 
 the verbal acknowledgment by the alleged mort- 
 gagor of the justness of the debt rebutted any 
 legal presumption of payment. 
 
 Martin tt al. v. liarnes ef al., 1 Old., '291. 
 
 16. Foreclosure and ejectment— Practice 
 
 —In foreclosure oi mortgages in the .Supreme 
 Court by ejectment, the ejectment and fore- 
 closure are distinct proceedings, and the latter 
 may be set aside for irregularity without dia 
 turl)ing the former. 
 
 The declaration in ejectment must be served 
 upon the tenarit in possession, and the order of 
 foreclosure and sale upon all the parties having 
 equitable interests in the premises. 
 
 All assignment by the mortgagor of his etiuity 
 of redemption under the Insolvent Debtor's Act, 
 makes his assignee a trustee for him, and leaves 
 in him a remaining interest in the nature of an 
 equity of redemption sufficient to entitle him to 
 be made a party to a foreclosure of the mort- 
 gaged premises. 
 
 The rule or order to sell must bo annexed to 
 
 the mortgage or else contain a description by 
 which the premises intended to be sold nuiy be 
 known. 
 
 Mayheii- v. Ftn, James, lOS. 
 
 17. Foreclosure and sale— Description ot 
 
 property — Under an order of foreclosure anil 
 sale, plaintiffs advertised for sale "all the 
 estate, right, title, interest and eijuity of re- 
 demption " of the defendants. At the sale one 
 M. became the purchaser, and paid down the ten 
 per cent, deposit reijuired under the terms of the 
 sale, but refused to complete the purchase, on 
 the ground that a good title in fee simple could 
 not be given. An order for a resale was made, 
 and the property was sold for an amount less 
 than the amount of the mortgage. I'laintiffs 
 applied to the Court for an order for the payment 
 to them of the deposit on the first sale. M. 
 showed cause, contending that he was entitled 
 to the return of the deposit as a good title could 
 not be given. 
 
 fli'ld, that as the plaintifTs had only professed 
 to sell the title of tlie defendants, such as it was, 
 and had not been guilty of fraud or misrepre- 
 sentation, and the purchaser would, under his 
 purchase, have acquired all that he bid for, he 
 was not entitled to a return of the deposit. 
 Dioceaan Synod, Nova Scotia, v. O'lirimi (t al., 
 
 R. K. I)., 3.V2. 
 
 18. Foreclosure and sale — Mortgagee's 
 
 rights on bond — 
 
 Held, that a mortgagee who has foreclospd 
 and sohl and bought in the land at ISheriff' s s;ile 
 and is in possession of the land can rank upon 
 the estate of the mortgagor for the i)alance due 
 on bond after deducting tlie proceeds of sale, 
 and cannot be compelled to give credit for the 
 actual value of the land. 
 
 Ih Extatt of Chandler, o R. & (i., 78. 
 
 19. Foreclosure and sale — Purchase by 
 mortgagee and sale to third party — Action 
 on bond for balance due — Plaintiff held en- 
 titled to recover — At a sale of mortgaged 
 property held pursuant to an order of foreclosure 
 and .sale, plaintiff', the mortgagee, became the 
 purchaser for a sum less than the amount of the 
 mortgage. 
 
 Plainlift' conveyed the property to a third 
 party and subsequently sued on the bond given 
 1 collaterally with the mortgage to recover the 
 balance due after crediting the net sum for 
 which the property was si Id at the Sheriflf's 
 sale. 
 
 Held, McDonald, C. J., and Weatherbe, J., 
 
 duhitante, thai, plaintiff was entitled to recover. 
 
 Kenny v. Chi'iholm, 7 R. & Ci., 497 ; 
 
 8C. L. T.,62. 
 
891 
 
 MORTGAGE. 
 
 892 
 
 Ofi appicU to the Supreme Court of Canada, \ 23. Foreclosure and sale— Kesale ordered 
 
 Htld, that the mortgagee wus not prohibited ' 0° ground of misapprehension- Defendam, a 
 
 from proceeiling on tlie bond to recover the mortgagor, churned a resale of premises sold by 
 
 residue of his debt. tlie Sheriff under foreclosure process and bought 
 
 Chuholm V. Ktnny, 10th Fthruary, ISSC, \ "> '>y the plaintiff, the mortgagee, on the grouiul 
 
 Cas. Digest 298. ■ °f "• misunderstanding at the sale, arising out of 
 
 the fact that the properties were described 
 
 'iO. Foreclosure and sale — Powers of 
 
 Court in controlling— Postponement of sale— 
 Where an order of foreclosure and sale of a coal 
 mine was made, K., one of the largest sharehold- 
 ers in the company owning the mine, applied 
 for an order directing certain coal to be sold be- 
 fore dealing with the mine itself. The Judge 
 refused to give the order, and B. appealed. The 
 day of sale was fixed subseciuent to the term. 
 
 differently in the advertisement, from the way in 
 which they were described in the mortgage aiul 
 writ. In the latter documents only three par- 
 cels were enumerated, two on the peninsula and 
 one on t^ueen Street ; in the advertisement they 
 were described as four lots, the Queen Street 
 property being divided into two lots, each separ- 
 ately described, so that when purchasers vere 
 told that the last lot was excluded from the sale 
 they would naturally infer that the whole Queeu 
 
 and with the understanding that if the cause ^^^^^^ ^^^ ^^^ excluded, and there was clear 
 was not reached on the last day of the term 'i ; evidence that such an understanding had preju- 
 further postponement might be moved for. The : Jicially affected the sale. 
 
 cause not being reached and argued, ^^^,;^ that the defendant was entitled to a 
 
 Hdd, that the sale should be postponed on ^^^.^.^1^^ j^„j t,,^^. the fact of plaintiff having, 
 
 terms being given by li. . j^f^^j, ^j^^ p,„.yijase, agreed to sell one of the lots, 
 
 Murdoch el al. v. Lairsoii et al, | ^jj^j ^^^^ .^q^^^ t,,,^^ ^i^j^^^ ^^^ ,,g j,,^j| obtained no 
 
 ' I deed, and the sale had not been conhrmed by 
 
 the Court. 
 
 21. Foreclosure and sale — Powers of 
 
 Bi<jdow V. Blaiklocli, R. E. D., 23. 
 
 Court in controlling — Sale of mortgaged ] 
 
 property in portions — Plaintiff, who was the j 24. Foreclosure Commenced after twenty- 
 mortgagee of certain coal areas, &c., having years— Ejectment meantime prevents opera- 
 commenced an action of foreclosure against the tion of Statute— Allan .McKay conveyed proper- 
 defendants, who were trustees of the same, and ty to plaintiflf by a deed, absolute in terms, but 
 cbtainedanorderofsale, B.,oneof theffc.>7Hj'«(/Me admitted to have been given as a security for a 
 trmttnt applied to the Court on petition setting j^bt. Nothing was paid on account of principal 
 out that shortly before the date of the order (,,. interest by the mortgagor or his heirs, for a 
 there v/as ready for shipment at mine a large period of over twenty years before suit to fore- 
 quantity of coal, which, if sold, and the proceeds ■ dose, but within that period an action of eject- 
 applied to that purpose, would be more than ^ent had been brought to recover possession, in 
 sufficient to pay the amount due on the mort- ' which a judgment was obtained, a record tiled 
 
 gage, and claiming that the sale of the mine 
 under the circumstances would be a great in- 
 justice. 
 
 Htld, that where equity to the cestidn que 
 trwtent requires it especially if the mortgagee be 
 not prejudiced thereby the Court possesses the 
 power and will exercise it to dispose of such 
 portions of the mortgaged property as will least 
 injure the mortgaged property and yet extin- 
 guish the debt. The case was referred to a 
 
 and a writ of hab. /tic. /»o.s'. issued but not 
 executed. 
 
 Held, that these proceedings prevented the 
 Statute of Limitations from operating except 
 from the judgment. 
 
 McKeen v. McKay, R, E, D., 121. 
 
 25. Foreclosure decreed In spite of And- 
 
 ings of jury that mortgage was without 
 
 Master to take evidence on the subject of the I consideration, &c.-Defendauc, in his answer 
 
 coals alleged to have been raised and report. 
 Murdoch v. Belloni et al., 3 N. S. D., 532. 
 
 22. Foreclosure — Regularity of proceed- 
 ings — It is for the plaintiff in foreclosure to see 
 that the proceedings are regular, at his own risk 
 of having them set aside, if irregular. 
 
 houtilier v. Harshman, James, 338. 
 
 to a suit for foreclosure of a mortgage, set out. 
 that the mortgage had been given to secure the 
 payment of a note from defendant to plain titf 
 for £68 10s., and an advance of §200 to l« 
 made by plaintififto defendant, which was made 
 and repaid by the defendant before the fore- 
 closure suit was brought by plaintiflf, as executor 
 of the mortgagee. In his evidence defendant 
 made an entirely different case, — that the note 
 
893 
 
 MORTGAGE. 
 
 894 
 
 had been rcpiiid Wfore the execution of the 
 mortgage, and tliat tlie $2((0 to lie paid by plain- 
 tiff to defendant was soon after returned, in the 
 very same money that had been received, having 
 been only intended to strengthen the transac- 
 tion ; defendant contending that the mortgage 
 had been given without any hoiiajidi. considera- 
 tion, but merely to protect his property from a 
 claim of \V. & tJ. A jury, to whom issues were 
 submitted, found, first, that the object of the 
 mortgage was to evado payment of the debt to 
 \V. & (J. ; that the mortgagee was iiware of that 
 f;ict wlien he received the mortgage, and that 
 the mortgage was given without consideration. 
 Htld, that notwithstanding these findings, the 
 ])laintiff was entitled to a decree of foreclosure. 
 McLdlan v. Fidmorc, R. E. D., 453. 
 
 26. Foreclosure — Defcn re of breach of 
 
 bond given by mortgagee at time of mort- 
 gage—No time of payment in mortgage — To a 
 
 suit brotigbt to foreclose a mortgage, defen- 
 dant relied chiefly upon two grounds of defence 
 —first, that, concurrently with the making of 
 the mortgage, jdaintifif gave defendant a bond, 
 whereby he bound himself to erect a double 
 house on the land within ten months, which de- 
 fendant contended had not been built in sucli 
 a manner as contemplated by the agreement ; 
 secondly, that the principal was not to become 
 payable until ten years after the date of the 
 mortgage. The number of years was left blank 
 in the mortgage. Defendant swore that it was 
 t(. be ten years, which i)laintifF tlenied, and there 
 was no other evidence. 
 
 Hdd, that vhe first defence could not prevail, 
 as, assuming the defendant's statement to be 
 true, it only formed the ground of an action for 
 damages, and that, as to tlie second, as there was 
 no satisfactory evidence to supply the omission 
 of the number of years, the Court must construe 
 the mortgage as if no time was mentioned, and 
 plaintiff had a right to foreclose. 
 
 Hiijijins v. McLachlan, R. E. D., 441. 
 
 27. Foreclosure, notice to Incumbran- 
 cers — benjamin, Freeman & Calder purchased 
 certain lands, subject to a subsisting mortgage, 
 each of them receiving a deed of one undivided 
 third. They had formed a partnership for 
 milling and lumbering, and Calder borrowed 
 ?2,000 for the purpose of erecting a mill, for 
 which he gave a confession of judgment to the 
 plaintiff, which was duly recorded. The partner- 
 ship, becoming embarrassed, assigned all their 
 property to Taylor and others, as trustees, and 
 afterwards assigned under the Insolvent Act to 
 Taylor, who procured, the mortgage to be fore- 
 
 I closed and bought in the property, which he 
 afterwards sold to Benjamin. The plaintiff was 
 not made a defendant in the foreclosure suit, and 
 received no notice of the sale, although Taylor 
 was aware of the fact that the plaintiff' helil a 
 judgment, and that it was recorded in the county 
 where the land lay, and Henjamin, when he took 
 the deed, was aware of the facts. 
 
 Hdd, that plaintiff was entitled to a resale, 
 with notice, and that the plaintiff's lien under 
 
 ! his judgment must have priority over the deed 
 in trust. 
 
 Kaulbach v, Taylor tf «/., R. E. D., 400. 
 
 28. Foreclosure — Writ of possession- 
 Question of title — Summary decision at 
 Chambers — Laches — J. A. \V. applied at 
 Chambers for and obtained an order for a writ of 
 possession of lands and premises purchased by 
 
 ; him at a foreclosure sale. An appeal from the 
 order was taken on behalf of M. J. B., widow 
 of F. T. B., the mortgagor, on the ground that 
 
 ; the lands in (]uestion were held by her under 
 lease from the Crown, and that, a (question of 
 
 I title having been raised, such question could not 
 
 I be decided in a summary way, but that posses- 
 sion must be sought by action at law. 
 
 1 A'dd, that the SheriflFcouldonly put J. A. \V. 
 
 I in possession of the lands actually described in 
 
 i his deed, and that M. J. B. having shown that 
 the land she occupied and claimed under lease 
 
 I from tlie Crown was outside of that description, 
 she had no ground for opposing the issue of the 
 writ. 
 
 Further, that M. J. B. having been made a 
 party to the foreclosure suit, and having failed 
 to appear, could not, without opening up the 
 decree of foreclosure, which barred her estate and. 
 interest, oppose the issue of a writ of possession 
 by setting up a claim which existed, and which 
 could have been raised as a defence if the descrip- 
 tion in the mortgage covered the land held by 
 her under lease from the Crown. 
 
 Weatherbe, J., duHenttd, on the ground that 
 
 a question of title had been raised which could 
 
 not be decided in a summary way at Chambers. 
 
 Ke G. W. Stuart, 7 R. & G., 444 ^ 
 
 7 C. L. T., 437. 
 
 '29. Injunction to restrain action at law 
 
 where claim raised therein had been adjudi- 
 cated upon on application for writ of assist- 
 ance— The defendant, J. C. S. Miller, mortgaged 
 certain property to VV. C. King, whose executors 
 foreclosed the mortgage, J. \V. King, the sur- 
 viving executor of the mortgagee, becoming the 
 purchaser at the Sheriff's sale. Defendant re- 
 maining in possession of the mortgaged premise* 
 
895 
 
 MORTGAGE. 
 
 896 
 
 a riilo itixi wiis granted for a writ of uasistance I 
 to put the purchikser in possession. No cause 
 being shown the rule was made absolute and a i 
 writ issued, under which the property was de- 
 livered to J. VV. King. Defendant then brought 
 an action of trespass against the .Sheriff and J. I 
 W. King, wherei'j:o!i a rule nisi wa.s taken for I 
 an injunction to restrain ihe action. Defendant 
 opposed the rule, conten<ling that the property, 
 of wliieh he had been in possession, was not in- ; 
 eluded in the mortgage ; but, after a full hearing 
 of tlie cause, the rule for the injunction was 1 
 niaile absolute. J. W. King tiien put the plain- 
 titt", Mosher, in possession of the Uuid, and the 
 defendant, J. C. S. Miller, brought an action of 
 ejectment, setting up tiie claim which this Court 
 had previously decided against him, namely, 
 that the lands claimed were not included in the i 
 mortgage. The present suit having been insti- 
 tuted to rcstniin the action, 
 
 /fild, that the defendant could not resort to 
 the actisn of ejectment at connnon law, and 
 tliere claim the land to which this Court had 
 decreed that lie was not entitled, and that the 
 action must be restraineil. To allow an eject- 
 ment to be brought Ijy Miller against King, 
 would be inconsistent with the order of this 
 Court, which be had not thought proper to 
 
 <|uestion by appeal. 
 
 Mosher V. Mill,,; 11. K. D., 279. 
 
 30. Insolvency does not prevent proceed- 
 
 ings to foreclose— Effect of arrest on lien of 
 judgment— Parker & (irant having recovered a 
 verdict against Fairbanks, a rule nisi was taken 
 out to set it aside. T. & E. DeWolf & Co. became 
 sureties to respond the final judgment, and took 
 a mortgage from Fairbanks to secure them from 
 loss on account of iheir bond, and also to secure 
 the amount of an existing indebtedness. Tlie 
 rule nisi having been discharged and judgment 
 entered up against Fairbanks, an execution was 
 issued, under which he was arrested and placed 
 in custody. While he was in custody, and after 
 the present suit was brought by plaintiff as as- 
 signee of DeWolfe & Co. against Fairbanks, to 
 foreclose tha mortgage, and after said Fairbanks 
 had answered, his estate was placed in insol- 
 vency, and Creighton, his assignee, intervened 
 and became a party. Parker & (irant also be- 
 came parties as interested in the subject-matter. 
 Beld, first, that the insolvency of Fairl)anks 
 did not prevent the plaintiff from proceeding 
 with the foreclosure ; and secondly, that Parker 
 & Grant had not lost their lien on the mortgaged 
 property in consequence of their having arrested 
 Fairbanks under the judgment. 
 Tucker, Amijnee, v. Crei'jhton, Assifjnee, et al., 
 
 R. E. D., 261. 
 
 31. Insolvency— Mortgage made In con. 
 
 templation of— Howell & .Stewart in June, 
 1871, entered into co-partnership aa founders, 
 kc, the former to give his skill and ability to 
 tiie business, and the latter, who was a minor, 
 to supply capital and purchase stock to the ex- 
 tent of .^.(KX). At the time of the agreement, 
 a lot of land was purchased for §10,(XWon which 
 to erect buildings for the business, but nothing 
 was paid on account of the purchase money, 
 which was secured by a mortgage. The deed was 
 taken in the name of Howell and Mrs. Adams, 
 the mother of .Stewart, who advanced the !?4,0<J(j 
 to start the business. Although plaintiff con- 
 tended that this advance was simply made liy 
 Mrs. Adams to her .son, there was some evidence 
 to siiow that it was to be repaid by the partner- 
 ship. .Stewart became of age in February, 187.'t, 
 and in August of that year the partnersliip was 
 dissolved, and a mortgage made by Howell to 
 Mrs. Adams to secure the amount of her advances. 
 The plaintiff, as assignee, sought to have this 
 mortgage declared void, as made in contemphi- 
 tioii of insolvency. At the time of making the 
 mortgage the liusiiiess was embarrassed, but the 
 jury found that the mortgage was not made in 
 contemplation of insolvency, and negatived fruinl 
 in the transaction, though they found that thu 
 conveyance had the effect of impeding, obstruct- 
 ing and delaying creditors. 
 
 The Court upheld the conveyance. 
 
 Fraser, Assiijnet, v. Adams et al., 
 
 R. E. D., 235. 
 
 32. Insolvency— Mortgage made in coD' 
 
 templation of — Defendants, being added parties, 
 resisted a proceeding taken by plaintiff, as assig- 
 nee of a mortgage, to foreclose the same, on the 
 ground that the mortgage was made in contem- 
 plation of insolvency, and was void under the 
 Insolvent Act, the mortgagee having afterwards 
 become insolvent and assigned under the Act. 
 
 /fetd, that defendants, seeking as crtditois 
 of the insolvent, to impeach the mortgage, solely 
 on the ground that it was in contraventioii uf 
 the Insolvent Act, should have called on llie 
 assignee to take proceedings to set it aside, nui 
 upon his refusal, should have applied to tlie 
 Judge for leave to proceed in his name, and, 
 further, that defendants should have proved their 
 claims in order to entitle them so to proceed. 
 
 Quaere, whether the defendants could contest 
 the validity of the mortgage at all, witliout 
 bringing a cross action. 
 
 Grant v. Wheeler et al., R. E. D., 3S8. 
 
 33. Insolvency— Mortgage made In con. 
 
 templation of, void — The Messrs. Pryor, In 
 
897 
 
 MORTGAGE. 
 
 898 
 
 Deceiiilwr, 1873, of tlieir own accord, signed and 
 seiiled !i mortgage, whereby defendant was to 
 l)c secured from loss on indorsements of their 
 paper ; hut defendant diil not become aware that 
 such a mortgage had been made until some time 
 ill 1H74, and his information then was not derived 
 ficjiii Messrs. Pryor, or any person authorized 
 liy tliem. The mortgage was not recorded until 
 March 20, 1S7">, when the Messrs. Pryor knew 
 thuy would have to go into bankruptcy, and on 
 Marcii "i'i, 187"), they^made an assignment under 
 liic IiLiolvent Act of 18GII. 
 
 Hi III, that the mortgage was void, being 
 iiiaile in contemplation of insolvency. 
 
 Lordly, A'lsi'jin.t of Pryor, v. i'eomaiis, 
 
 R. E. D., 113. 
 
 34. In.solvency-Pledge or lien given In 
 
 contemplation of— J. T. V. & Co., being in- 
 cklited to tlie plaintiff, gave, as a collateral 
 security, a mortgage which they M-ere to receive 
 on a vessel, being built by McK. & V., dehtor.s 
 (if tliuirs, in P. K. Island. The arrangement was 
 made October 10, 187">, and on the same day J. 
 T. I'. & Cn. wrote to plaintiffs, encloaing a draft 
 on H. 1% Co., Liverpool, at ninety days, for 
 t'lifMK), stating that the same was drawn against 
 piocc'ods of the vessel, wliich was to be sold in 
 Livorpool C. B., by H. k Co., and concluding ; 
 " The aliove vessel i.-s herewith pledged to you 
 f'lr the due payment of said bill of exchange, 
 as well as for payment of the obligations of McK. 
 k v.'' •!. T. F. & Co. then proceeded to Prince 
 Eilward Island, to obtain tlie mortgage ; but 
 previous to its being deliverer to plaintiffs 
 lliey liad, on the I'Jth November, caused a de- 
 mand of assignment to be served on J. T. F. & 
 Co., and the plaintiffs' manager, when the mort- 
 gage was afterwards tendered to him, said it ' 
 should have been made to the Bank, instead of j 
 to.]. T. F. k Co., and handed it back to J. T. : 
 F., who gave it to the assignee. On the 15th ' 
 November, J. T. P. & Co. made an assignment 
 'nulcr the Insolvent Act, and on the •27th 
 Noveniljur, the bill of exchange for £1,000 was 
 presented and dishonored. The vessel was sold 
 for more than £1,000, by the a.ssignee, ^vho re- 
 tained the proceeds. Plaintifls claiming to have 
 an eipiitable lien on the mortgage for the amount 
 of tlie bill of exchange, and of an unpaid note of 
 ileK. & v., indorsed by J. T. F. & Co., 
 
 ffil'l, that although, if the proceedings were 
 Wtween tlie plaintifT and J. T. F. & Co. alone, 
 tlie latter might be estopped from resisting the 
 claim of tlie plaintiffs, on the ground that they 
 Iwil no title to the vessel at the time they 
 pledged her ; yet, under the provisions of the 
 Insolvent Act of 1875, s. 118, the pledge or lien, 
 
 en 
 
 if it could otherwise have been effective, was ren- 
 dered null and void, a demanrl of a-ssignment, 
 followed by an assignment, having been serveil 
 within thirty days after the pledge was given, 
 and the plaintiffs, upon whom the burden of 
 proof lay under that section, not having shown 
 that the pledge had not been made in contem- 
 plation of insolvency. 
 Jiaii/c of B. N. America v. Worrall, R. E. V., 12. 
 
 I SS. Insurance for benefit Of mortgagee - 
 
 Interpleader— Plaintiff mortgaged certain pro- 
 I perty to C. for .§434. 5(J, and covenanted in the 
 I mortgage to keep it insured for .§500 in the name 
 i and for the benefit of the mortgagee. .'•Nubse- 
 I (juently plaintiff effected insurance to the amount 
 I of .^570 on his own account, without reference 
 I to the mortgagee, -SKSO of which was on the per- 
 ' sonal projierty, not covered by the mortgage. 
 After loss by tire, the mortgagee, finding that 
 I the insurance was not in his name, demanded an 
 ' assignment of the policy, offering to secure to 
 plaintiff' the amount due him, and upon his re- 
 fusal, claimed the amount from the company. 
 Defendants paid the i?l80, and upon action 
 brouglit for tlie balance, an interpleader order 
 was made. 
 
 I III /(I, that the insurance inured to the benefit 
 I of the mortgagee, and that he was entitled to 
 interplead, although the claim of the mortgagee 
 was an uquitalde claim, and the company was 
 under a contractual obligation to the plaintiff, 
 ' and althouglj the claim of the mortgagee was 
 smaller than the amount insured. 
 
 McKenzie v. ^Eliia lumtranri- Company, 
 
 R. K. 1)., 346. 
 
 3«. Insurance -Right Of mortgagee to— 
 
 Plaintiff, a member of the firm of Black Bros. & 
 Co., took a mortgage of a vessel which was 
 given by defendants for outfits supplied by that 
 firm, and a policy of insurance was effected to 
 secure the payment for the outfits. The vessel 
 was lost and plaintiff received the insurance, 
 which he credited in account with one Malcolm, 
 to whom he had agreed to sell .36/64 shares in 
 the vessel. 
 
 Hdd, vhat the amount received from the 
 
 insurers must go to the credit of the mortgage. 
 
 Ti-oop v. Mo:ikrct al., R. E. 1)., 189. 
 
 37. Joint stock company— Dlrectorsof— 
 
 Power to mortgage implied from power to 
 borrow- -The directors of a company incorpor- 
 ated under Acts of 1862, chapter 2 (Rev, Stats., 
 .3rd series, 750), intituled " An Act for the incor- 
 poration and winding-up of joint stock com- 
 panies," have power to mortgage the property 
 
899 
 
 MORTGAGE. 
 
 900 
 
 of the company to lUschurge obligations for which j that the cugtonmry renewal receipt shoiilil lie 
 the shareholilers lire liable, and would continue given, but in conHcciuenie of a change in dcftiul- 
 liable in their own jjerBons, if there were no j ant company's business a new ixdicy was i«Hutd 
 mortgage. The power to lx)rrow money implies ■ instead in the name of T., as before, but having 
 the power to mortgage. In making calls upon indorsed uiwn it an assignment of T's interest 
 eontributories, summonses will be granted by a to the plaintiffs 
 
 Judge to the several parties requiring the 
 
 Ilflil, that plaintiffs could not recover undtr a 
 
 amounts for which they are liable to be paid renewal of tlie original policy as there was no 
 within a specified time, without costs, unless [ privity of contract between them and the dfftn- 
 resisted. I dants, or under the second policy, as, having no 
 
 In re Xanh Brick it- Pottery Manufacturimj Co., interest in the property at the time it was luiule, 
 
 3N. S. D.,254. 'the assignment by T. was ineffectual to pass 
 ^ anything to the plaintiffs. 
 " Mortgage effected by trustee on prO-l /'oWeatherbcJ.-That there having been a 
 
 perty of vestui qui trust— Snii to recover bal. 
 ance due — Notice of trust to mortgagee. 
 
 mutual understanding that, in consideration of 
 the premium paid, a policy should be issued piiy. 
 
 ance aue — ixoiice oi irusi lo muiv^aiicc, • , . r^ \ ■ ■• -c .\ ■ » 
 
 -. , , T •» • n o I.V „it« rm.rt to ivWe to the plaintiffs, to indemnify them agmnst 
 
 effect of— In a suit in the Knuity I ourt to .,,.,. , , i ^ \ 
 
 , , , . , , „ „i„i„Hff n« ,l„p nn ' 088. ^ the pleadiiigs could be construed of 
 
 recover a balance claimed by plaintiH as due on ' » => » i 1 1 1 
 
 a mortgage, judgment was given in that Court -'e"<l«'l t° cover the case, judgment should be 
 
 in plaintiff's favor. On appeal, it appeared B'^en for plaintifls. 
 
 that the defendant, J. C, had received a sum of 
 money belonging to his infant son, A. M. C, to 
 invest in real estate. He appropriated a con- 
 siderable portion of the money so received to 
 
 Wyman tt al. v. The Imperial Fire In/t. 
 Co. et al., 20 N. S. R., (8 R. & G.), 487. 
 
 40. Mortgage executed In blank-Plain. 
 
 other purposes. .Subsequently he purchased a tjffg' claim for relief was based on the charge 
 property from McD., taking the deed to him- \ that a mortgage of a vessel, executed in blank 
 self as "trustee of A. M. C, of the City of H., | and delivered to one of the defendants to be filled 
 an infant." For the purpose of raising the pur- 1 up, had been filled up for a greater number of 
 chase money of the property so bought, he gave j shares and a larger amount than was warranted, 
 a mortgage to the plaintiff, in which he described ; ^nd that the other and real defendant, to wliom 
 himself as "trustee of A. M. C, of the City of ! ^he mortgage had been transferred, was nut a 
 H.. an infant." I honajide purchaser, and had notice of the fraud. 
 
 Held, (1.) that as between the trustee and the | There was no evidence to impeach the honajidii 
 cestui que tru.it, the deed to the former gave ^f the defendants, and, as to notice, the evidence 
 the latter an interest in the land purchased 
 
 ■which would be protected, and rights which 
 would be enforced by the Court. 
 
 (2.) That the words used in the deeds, " trus- 
 tee," &c., justified a legal inference of knowledge 
 on the part of the plaintiff of the existence of the 
 trust for the beneiit of A. M. V., which placed 
 the plaintiff, with respect to the rights of the 
 infant, in no better position than the trustee. 
 
 The appeal was allowed 
 
 was such as to lead the Court to the conclusion 
 
 that when he purchased he had no notice of any 
 
 adverse claim, or that the title was questionable. 
 
 Held, that the plaintiffs were not entitled to 
 
 relief. 
 
 Stewart et al. v. Boak et al., R. E. D., 46/. 
 
 41. Mortgage given In ft-aud of purchaser 
 
 who, to protect himself, in effect pays it off- 
 
 ,f^ Purchaser's rights— Plaintiffs purchased certain 
 
 Fitch v. Currie et al., 7 R. & 0., .'522 ; | ^^^^ estate, subject to a mortgage held by W., 
 8 C. L. T., 59. g^g guardian, for S.5,840, and sold a portion to 
 defendant, who was aware of the mortgage, for 
 S7,000. Defendant paid §1,400 in cash, and re- 
 ceived a deed, with an absolute warranty and 
 covenants for title, without reference tn the 
 mortgage. On the same day plaintiffs gave a 
 mortgage of the whole property to K. for S.S,760, 
 of which defendant had no knowledge when lie 
 made his purchase, and which was recorded lie- 
 fore plaintiffs' deed. Defendant gave plaintiU's 
 a mortgage for the balance of the purchase 
 money. The mortgage to W. was foreclosed 
 and the property sold by the Sheriff, and defen- 
 
 39. Mortgagee cannot sue on policy issued 
 
 in name of mortgagor— The defendant company 
 issued a policy of fire insurance in the name of 
 T. on property of T., of which the plaintiff 
 company were mortgagees. T. having release* 
 his equity of redemption to plaintiffs in satis- 
 faction of their debt, plaintiffs continued to pay 
 the premiums upon the policy, but without 
 having received any assignment of T's interest 
 in it. When the last premium became due it 
 was paid by plaintiffs as usual, and it was agreed 
 
901 
 
 MORTGAGE. 
 
 902 
 
 (lant was obli/u'ed, in order to protect himself, to 
 Iwciime the purchaser, paying for the wiiolo pro- 
 perty inchitletl in the mortgage, $8,85(1, which 
 was appHed to tlie payment of tlie amount due 
 on the two mortgagcH to \V. and K., and to a 
 judgnient recorded agaiiiHt tlie property. I'lain- 
 tiffs tlien brought an action against the defend- 
 ant on the covenant in his mortgage. 
 
 Htid, that they had no eijuitahle right to call 
 for payment of the purcluise money until they 
 had cleared defendant's title ; that defendant 
 was entitled in equity to pay off the mortgages, 
 and liad in effect done so, and to recover from 
 the plaintiffs the amount so paid, over and above 
 the purchase money, and that before plaintifl's 
 could repossess themselves of the portion not 
 included in the conveyance to defendant, they 
 would be obliged to pay him the difference be- 
 tween the amount at which he had purchased 
 and the amount he had been t)bliged to pay, 
 
 (Juacre, whether the defendant could be com- 
 pelled to convey, even ou the terms mentioned. 
 Barton tt al, v. Baldwin, R. E. D,, 366. 
 
 42. Mortgage giren priority over an 
 
 unrecorded deed— Concealment— .1. R. McL. 
 being entitled by right of his wife to an interest 
 in certain real and personal property, being an 
 estate of which M. the wife was one of the heirs, 
 they joined in a mortgage to plaintiff of all their 
 said interest. On plaintiff seeking repayment 
 of the amount loaned, defendant, one of the 
 executors of the said estate, resisted the claim on 
 the ground that, six years previously, J. R. 
 McL. and his wife had conveyed all their inter- 
 est in said estate by deed poll to her mother. 
 This deed was never recorded, and the plaintiff 
 did not know and had no means of knowing of 
 its existence. The mother, although aware of 
 plaintiff's mortgage at the time it was made, 
 concealed from him the fact of the deed to her. 
 Held, that having so concealed from plaintiff 
 what it was her duty to reveal to him, the 
 mortgage should be given priority over the deed, 
 and plaintiff's claim satisfied out of the estate. 
 West v, Mathesm tt al., 3 N. S. D., 429. 
 
 43. Mortgagee- Insurance of bis Interest 
 
 in vessel— 
 
 See INSURANCE, MARINE. 
 
 44. Mortgagee— Insurance payable to, In 
 
 case of loss- Preliminary proof— Who may 
 maintain action — Where property was insured 
 in the name of 0. , but the policy contained the 
 following clause : " loss, if any, payable to the 
 order of B., if claimed within sixty days after 
 proof, his interest therein being as mortgagee." 
 
 H((d, Dodd, J., ditxinliii;/, that B. might bring 
 an action on the policy in his own name, and that 
 he must be taken to be the [wirty insured. 
 
 Hdd, alio, that it was no objection to IVa 
 recovery, that the preliminary proofs were 
 furnished by him and not by O. 
 
 Brunh V. ^■Etiia Inxxirance Co., 1 Old., 459. 
 
 45. Mortgage not yet due- Restraining 
 
 sale under— Terms — Where trustees, having 
 power to sell a mining property conveyed to 
 them by way of mortgage to secure the payment 
 of interest on bonds issued by the Mining Com- 
 pany, the principal of which was not yet due, 
 advertised the property for sale, instead of pro- 
 ceeding by way of foreclosure, and the plaintiffs, 
 who had the equity of redemption, although 
 aware of the intention to sell, delayed seeking 
 the information necessary to enable them to 
 prevent a sale to their injury, and applied for 
 an injunction only two days before the day of 
 sale the Court granted the injunction upon 
 payment by the mortgagors f)f the interest on 
 the outstanding bonds, and their undertaking to 
 pay the expenses incurred in preparing for the 
 sale. 
 
 Wood tt al. V. Harett al., R. E. D., 201. 
 
 46. Mortgage of personal property — 
 
 Right to sell— H. & M. McDonald made a bill 
 I of sale of personal property, dated July 5th, 
 i 1876, conditioned for the payment of §400 on 
 ; the 5th July, 1877, and became insolvent 24th 
 I April, 1877. On the 8th June, 1877, to avoid 
 [ leaving the property on the premises liable to 
 ; be distrained for rent, which accrued due on the 
 ; r2th of June, the insolvent's assignee and the 
 j holder of the bill of sale, after each advertising 
 I a sale of the property to which the other oi>iect- 
 I ed, agreed that it should be sold, reserving the 
 proceeds for the adjudication of the Court. 
 
 ^eld, that the holder of the bill of sale was 
 entitled to the proceeds, which were less than 
 the amount due him, but that the decree should 
 be without costs as the controversy had arisen 
 out of an asserted right to sell which did nob 
 exist in either party. 
 
 In re O'Mullin and Johnstone, R. E. D., 157. 
 
 47. Mortgage of property, to wblcb mortga- 
 gor has reversion, by him — Foreclosure before 
 property vests — Hon. James Tobin, by his will, 
 devised lands to his executors to their use during 
 the natural life of his son, Michael Tobin, upon 
 trust to permit his said son to occupy the said 
 premises and receive the rents, after certain de- 
 ductions, for his own use and benefit, and from 
 
903 
 
 MORTGAGE. 
 
 904 
 
 and immediately after tiie decease of his said 
 son Michael, in trust to convey and assure said 
 premises unto the child or children of his said 
 son Michael, living at the time of the decease of 
 his said son Michael, and to their -sue. Defend- 
 ant, 0. son of said Michael Tobin, mortgaged his 
 interest to plaintiff, and in answer to the writ 
 of foreclosure, set out the above facts, adding 
 that said Micliael Tobin was still living, and 
 that some of his children were married and had 
 lawful issue. 
 
 Held, that defendant, having mortgaged his 
 interest to plaintiff, could not repudiate the 
 transaction, and ask to have the mortgage de- 
 clared inoperative, while retaining the amount 
 received as consideration for it ; and further, 
 that plaintiff was not bound to wait until the 
 title of the mortgagor became complete, before 
 
 foreclosing. 
 
 Law-sou v. Tohin, R. E. 1)., 111. 
 
 48. Mortgages of two properties-Fore- 
 closure and sale of one— Deticiency — Right to 
 redeem other without paying such deficiency 
 — Building Society rules— Where a mortgagor 
 by two distinct transactions has mortgaged two 
 properties, one of w liich on sale under foreclo- 
 sure lias not realized the sum for which it was 
 nortgaged, the mortgagor will be allowed to 
 redeem the other property without payment of 
 the l)alance due on the first mortgage. 
 
 Where there is a discrepancy between the 
 rules of a Building Society and the tables annexed 
 thereto, and referred to in them, the tables will 
 govern, and a mortgagor of the Society will be 
 allowed to redeem on payment of the sum indi- 
 cated by the tables. 
 
 Slayttr v. Johmton et al, 1 Old., 502. 
 
 1 9. Mortgage of ungranted Crown lands- 
 Thomas and John Archibald mortgaged to plain- 
 tiff two third parts of several lots of ungranted 
 Crown lands applied for and paid for by Eller- 
 shausen and others, the right to receive which j 
 was by them transferred to the St. Croix Manu- 
 facturing Company (said Archibalds having 
 become interested therein to the extent of 
 two third parts). Before the grants were taken 
 out the Archibalds became insolvent, and de- 
 fendants, as trustees for creditors, procured said 
 grants of land based on the original application, 
 but they selected the lots in localities somewhat 
 diflferent from those indicated in such application. 
 
 Held, that plaintiflF had a lien on two-thirds 
 of the land comprised in the grants for the debt 
 intended to be secured by the mortgage, and 
 that an order must pass that the amount thereof 
 
 ' should be paid to him, otherwise said two-thirds 
 
 of the land to be sold to satisfy plaintiffs claim. 
 
 Stephens V. Twiniim et al., R. E. I)., 176, 
 
 : 50. Mortgage recorded - Then attach. 
 
 ment— Then assignment of mortgage— Attach- 
 
 ' ing creditors do not acquire priority over 
 
 assignee— The defendant, holding a mortgage 
 
 on certain real estate which was duly recorded, 
 
 assigned the same to the plaintiffs, after wiiicli 
 
 I defendant purchased the ecjuity of redemption, 
 
 and the deed was duly recorded. Attachments 
 
 ' were then issued against the defendant as an 
 
 ' absconding debtor, and the attachments, as 
 
 well as the judgments entered thereon, were 
 
 ' placed on record before the assignment of the 
 
 mortgage. The attaching creditors claimed, 
 
 under 4th Revised Statutes, c. 79. sees. 19 and 
 
 22, to have priority, a.v against the assignee of 
 
 the mortgage. 
 
 Held, that the mortgage remained a lien ou 
 the property, whether tlie assignment was re- 
 corded or not, and tliat the attaching creditors 
 luid not the priority claimed. 
 
 Raijmoml et al. v. liuhards, R. E. 1)., 4'23. 
 
 51. Mortgagee, rights of, as against the 
 
 mortgagor's assignees— T. A. and J. A. were 
 ' entitled to receive grants of Crown lands uiion 
 I whidi the price had l)een paid to tlieCioveni- 
 ment. liefore taking out their grants tliey had 
 mortgaged their rights to plaintiflF. Suhse- 
 (juently they became insolvent, and made a 
 ' general assignment to defendants for tiie benefit 
 i of their creditors. The defendants, as sucii 
 ' assignees, applied for the grants and had tliem 
 ' made out to themselves, selecting lots in differ- 
 ' ent localities from tiiose indicated in tlie origi- 
 I nal application, but the money paid for tlieni 
 j was that paid on the original application. On 
 I the plaintiflF seeking repayment of the amount 
 loaned by him to T. A. and J. A., the defen- 
 dants refused to satisfy his claim. 
 
 Held, that as assignees of the A's, they had 
 only succeeded to such rights as tlie A's posses- 
 sed at the time of the assignment, and those 
 rights having been mortgaged to plaintiff, his 
 claim should first be satisfied before they could 
 deal with the land granted to them. 
 
 Stephens v. Twiniwj et al., 3 N. S. D., 445. 
 
 52. Mortgagee-Right of entry-A mort- 
 
 gfagee, in the absence of any express covenant or 
 stipulation to the contrary, is entitled to enter 
 upon and take possession of the lands and prem 
 ises conveyed in the mortgage at any time, 
 although as an almost invariable rule in tins 
 country, the mortgagor remains in possession 
 
905 
 
 MORTGAGE. 
 
 906 
 
 until default in fulfilmeiit of the conditions of 
 the mortgage. 
 
 Dhhh v. Mi/kr, 3 N. S. D., 347. 
 
 53. Mortgagor cannot maintain eject< 
 
 ment after failure to perform conditions in 
 mortgage without re-conveyance — The plain- 
 tift' in ejectment claimed under a .Sheriff's deed 
 to liim as trustee of his sister M. and her child- 
 ren. On the same date on which the deed was 
 executed plaintiff executed a mortgage of the 
 same lands to C. H. M. B., the condition of 
 wliich was that if the principal and interest were 
 paid in one year, the mortgage should be void. 
 The principal and interest were not jiaid until 
 after the expiration of the year, when they were 
 puid by M., and an assignment of the mortgage 
 made to her children, J. M. and F. M. 
 
 Letters of guardianshir of the children were 
 granted to the defendant, who collected the 
 rents of the property. 
 
 ffttd, that the conditions of the mortgage not | 
 
 having been fultilled, in the absence of any i 
 
 re-convpyance to the plaintiff, the latter could j 
 
 not maintain ejectment. | 
 
 Mahon v. Gannon, 7 R. & (1., 218 ; 
 
 7 C. L. T., 325. j 
 
 51. Partial release-itule as to, in rules , 
 
 of Nova Scotia Building Society — Reference 
 clause in such rules — Usury— Plaintiffs as 
 Trustees of the N. S. Permanent Benefit Building 
 .Society, advanced to defendant a sum of money 
 on the security of five mortgages, the foreclosure 
 of which was sought in this suit. Defendant, 
 in his answer, claimed that he was entitled to a 
 release of a portion of the mortgaged property 
 under the 6th rule, providing "that the Trus- 
 tees sliall be empowered, by direction of the 
 hoard, at any period, to release any portion of 
 the property mortgaged, on being satisfied, in 
 manner before mentioned, • * * that the 
 remaining portion of the property is of sufficient 
 value to secure the Society. " Defendant alleged 
 that tjie directors had refused such release, 
 although the amounts due under the mortgages 
 had been largely reduced, and had further re- 
 fused to submit the matter to arbitration, as 
 (leuianded by him under the 29th rule, provid- 
 ing "tiiat the board, for the time being, * * * 
 shall determine all disputes concerning the 
 affairs of the Society, * • * which shall or 
 may hereafter arise between the trustees, offi- 
 cers, or other shareholders of the Society, * * * 
 and, if the decision be not satisfactory, refer- 
 ence shall be made to arbitration." Defendant 
 ftlso pleaded usury, as invalidating the mort- 
 gages, the Society having taken, by way of a 
 
 bonus or premium, a sum exceeding the legal 
 rate of interest. 
 
 //eld, that the rule providing for the partial 
 release of the property left the matter to the 
 discretion of the directors ; that the demaiul 
 and refusal of such roWse did not constitute a 
 "difference" or "dispute," wliich defendauu 
 could insist on having referred to arbitration 
 under the 29th rule ; that, even in the absence 
 of legislation, plaintiffs were justified in taking 
 the bonus or premium in addition to interest, 
 the transaction being in the nature of an 
 advance of partnership funds, in which defend- 
 ant was interested in common with other mem- 
 bers of the Society ; and, were it not so, as the 
 evidence showed that the plaintiffs were entitled 
 to the benefit of an Act enabling them to take 
 such premiums, although their right to do so 
 was not sufficiently set out, they would be en- 
 titled to amend thi declaration or reply. 
 
 Defendant having alleged that the law had not 
 been complied with in the organization of the 
 Society, relyiuj; on the objection that the rules 
 were not duly ce.'tified as recjuired by law. 
 
 Held, that, assuming the objection to be prop- 
 erly pleaded and sustained by the evidence, it 
 would not be available, as the plaintiffs could 
 sustain the action on the mortgage without 
 the aid of the Statute. 
 
 Almon et al. v. Fairbanks, 1 R. & C, 407. 
 
 55. Parties to foreclosure suit— Matthew 
 
 Chisholrn mortgaged land to Archibald and 
 James Chisholrn, the former of whom assigned 
 his interest to plaintiff, who brought suit to 
 foreclose the mortgage against Matthew Chis- 
 holm alone. Subsequently the writ was amend- 
 ed by making Archibald and James Chisholrn 
 and John T. .Smith defendants, the latter having 
 taken an assignment of the mortgage from Archi- 
 bald and James Chisholrn, subsequent to the 
 assignment by Archibald Chisholrn to plaintiff. 
 //ehl, that Archibald Chisholrn, having a 
 separate interest, had a right to assign it to 
 plaintiff; that aUhough plaintiff could not sus- 
 tain his suit as originally bi'ought against the 
 mortgagor alone, the writ, as amended, brought 
 all the parties interested before the Court, and 
 that although the onlinary course would have 
 been to make Smith a co-plaintiff, yet as he 
 denied plaintiff's rights under the assignment, 
 he had been properly ma<le a defendant. 
 
 Sihky v. Chixholm et al., R. E. D., 167. 
 
 56. Partition suit — Outstanding mort- 
 gages no bar to — The plaintiff brought suit 
 for a partition of certain lands under the follow- 
 ing, among other circumstances : the defend- 
 
907 
 
 MORTGAGE. 
 
 908 
 
 ant and his brother were doviseea under their 
 father's will of a large tract of land which they 
 held as tenants in common. They executed two 
 mortgages thereon which were outstanding at 
 the time of action brought. 
 
 Held, that the outstanding mortgages were no 
 bar to the partition sought. 
 
 LeCain v. Hosterman, 2 N. S. D., 413, 
 
 57. Payments by instalments-Computa- 
 tion of amount due — Tlie plaintiff company 
 was registered under the Imperial Act, 25 and 
 26 Vic, cap. 89, and claimed to do business in 
 Canada under 37 Vic, cap. 49. The object of 
 the Socioty was expressed to be to advance 
 money in various sums to such members as were 
 desirous of receiving it, the repayment to be 
 secured on real or other security ; and in the 
 Article of the Constitution entitled " Foreclosure 
 and Redemption," it was provided that if any 
 member should desire to pay in advance all or 
 any portion of an appropriation or premium, he 
 shall be at liberty to do so, and shall be entitled 
 to such discount as the actuary may recommend. 
 The writ alleged that, the mortgagee having be- 
 come a member of the Society, £300 was ad- 
 vanced to him at a premium of £379 6s. 8d., the 
 advance and premium to be repayable in quarter- 
 ly instalments in twenty years ; and that, 
 according to the regulations of the Society, if 
 any instalment or fine remained in arrears for 
 three months, the whole sum advanced, together 
 with the premium, should become due. The 
 proviso and covenants in the mortgage were to 
 this etTect, and the plaintiff claimed £675 7s. 
 8d., although the mortgagor had only had the 
 sum of £300 for nine months. 
 
 Held, that the plaintiffs were only entitled to 
 the quarterly instalments up to the time of 
 foreclosure and sale, and that the amount of 
 principal due should be ascertained by com- 
 puting how much of the quarterly payments 
 represented principal, and how much interest. 
 
 Matferwn v. Elderjield, L. R., 4 Ch., 207, dis- 
 tinguished. 
 
 The. Alliance Society of London v. Chisholm., 
 
 R. E. D., 414. 
 
 59. Property Included In -Mistake — 
 
 Estoppel — Defendants desiring to borrow 
 money on mortgage, took the plaintiff, who was 
 the solicitor of the mortgagee, upon the land 
 offered r.s security, and pointed out the Ixtun- 
 daries of the land. Plaintiff drew up a mcrtgage 
 in which the land was described as that on which 
 defendants resided, but the boundaries given 
 were shown by parol evidence not to include the 
 portion on which they resided, although it was 
 
 clearly the intention of all parties that this por- 
 tion should be included in the mortgage. Plain- 
 tiff having taken an assignment of the mortgage, 
 foreclosed it, and bought in the property at 
 Sheriff's sale, the description in the Sheriff's 
 deed following that in the mortgage. Plaintiff 
 then brought action of ejectment, and defend- 
 ants, as to this portion, pleaded that plaintiff 
 had no title. 
 
 Held, per James, J., that defendants were not 
 estopped from saying that the land in questioD 
 was not included in the mortgage, but that tlie 
 verdict for plaintiff must be sustained, as it was 
 the clear intention to include the portion on which 
 defendants resided, and the ambiguity had been 
 cleared up by parol evidence. 
 
 Per Young, C. J., DesBarres and Smith, J J. 
 — That the defendant was estopped by his 
 representation that the whole of the land, 
 including the part in question, was to be com- 
 prised in the mortgage. 
 
 Fuilerton v. Ibbitaon et al., 3 H. & C, 225. 
 
 59. Puisne mortgagee— Foreclosure by- 
 Practice — Where puisne mortgagee forecloses, 
 there should be a reference to a Master to find 
 what is due on prior mortgage. If the first 
 mortgagee does not go before the Master and the 
 amount due him cannot be reported, then tiiere 
 may be an application for an order of sale, sub- 
 ject to prior mortgage. 
 
 fer Wilkins, J. — I think that bf fore puisne 
 mortgagee forecloses, he ought to give notice to 
 prior mortgagees of his intention to do so. 
 
 Creiijhton v. Moore et al, 2 Thorn., 227. 
 
 60. Receipt Indorsed — Evidence — The 
 
 body of a deed acknowledged the payment of tlie 
 purchase money in the usual form, and a receipt 
 therefor signed by plaintiff was also indorsed, 
 but subsc(iuent to the sale a dispute arose as to 
 
 j whether the amount stated in the deed included 
 
 ! a mortgage existing on the property, or whether 
 
 ^ the purchaser M'as to pay that also. 
 
 I Plaintiff having sued for the amount of the 
 
 I mortgage, 
 
 i Held, that in the face of the indorsed receipt, 
 
 i and of certain evidence adduced in confirmation 
 
 j thereof, he could not recover. 
 
 ! McDonald v. 5/ow, 3 N. S. D., 283. 
 
 I 61. Registration of— Proof of- In an action 
 
 for breach of covenant for title contained in a 
 deed from defen((ant to plaintiff, the plaintiff put 
 
 j in evidence a mortgage on which was indorsed 
 whai purported to be a certificate of registration. 
 
 j The execution )f the mortgage was proved, but 
 the certificate was not proved to have been 
 signed by the proper officer, nor was it tendered 
 as evidence independently of the mortgage. 
 
909 
 
 MORTGAGE. 
 
 910 
 
 Held, that as the plaintiff had no notice 
 of the mortgage, his title was good unless the 
 mortgage was registered prior to the registration 
 of the deed, and that in order to prove such 
 registration, it was necessary to show that tlie 
 certificate had been signed by the proper ofiBcer, 
 tlie mere production of a paper purportimj to be 
 a certificate not being sufficient under Revised 
 Statutes, chapter 79, section 18. 
 
 Gould V. McGregor, 1 R. & G., 339. 
 
 6a. Release— Action to procure execution 
 
 of— D. made a mortgage to defendants' testator 
 to secure the payment of three promissory notes. 
 The notes were paid and handed over to D., 
 upwards of twenty years before this action was 
 brought by D. to compel defendants to execute 
 a release of the mortgage. During the subse- 
 quent period no payments were made by D. or 
 demanded of him, and the estate of testator was 
 settled without anj' reference to the mortgage 
 as an outstanding debt due the estate. After 
 bringing the action D. became insolvent and 
 made an assignment under the Insolvent Act, 
 and his assignee intervening, under an order of 
 the Court, became plaintiff in the suit. 
 
 Hdd, that the defendants must be decreed to 
 execute a release of the mortgage, though with- 
 out costs, they not having opposed the proceed- 
 ings of plaintiff. 
 
 Bell. Aiiiijnee, v. Brown et al, 
 
 R. E. D., 20. 
 
 63. Release of— Evidence of memo, by 
 
 testator to effect that mortgage was not pay- 
 able to heirs, executors, &c., not evidence of 
 release— Plaintiff, as administratrix, sought to 
 foieck-3 a mortgage for £200 made by defend- 
 ant, who, in his answer, set out a series of trans- 
 actions with the deceased in regard to the mort- 
 gage, and further alleged that deceased mort- 
 gagee had delivered to him a memorandum, 
 signed by him, as follows :—" Ths mortgage 
 wliichlhold of W. J. W., bearing date, &c., 
 for £;?00 is not payable to my heirs, executors 
 or administrators after my death,— I. W. W." 
 The memorandum was not produced, but on 
 proof of loss, secondary evidence was gfiven, 
 which the Judge considered of a suspicious 
 character. 
 
 Held, that the memorandum, even if there 
 were no suspicious circumstances about it, would 
 not operate as a release of the mortgage, either 
 at law or in equity, and that plaintiff was 
 entitled to a decree. 
 
 fVoodworth v. Woodwwth, R. E. D., 337. 
 
 W. Release— Burden of proof- 
 
 Se^ NEW TRIAL, 30. 
 
 65. RIgbt to selie chattels under mort- 
 gage — The plaintiff E. entered into a contract 
 with Her Majesty, represented by the Minister 
 of Public Works of Canada, for the construction 
 of certain public works at Mabou, one section 
 of the contract providing in substance that it 
 should be in the power of Her Majesty to make 
 payments or advances on materials, etc., to 
 be thenceforward vested in and held as collateral 
 security by Her Majesty for the due fulfilment 
 of the contract, but to remain at the risk of the 
 plaintiff E., until finally used and accepted as 
 part of the work ; the plaintiff, however, to 
 exercise no acts of ownership or control over 
 the said materials without the permission of the 
 Minister in writing. A mortgage of a dredge, 
 etc. , was afterwards made by the plaintiff E. to 
 Her Majesty, purporting to be in consideration 
 of $20,000 advanced, and conditioned for the 
 repayment of the sum of $20,000, with interest, 
 in one year from date of execution. May 24, 
 1872. The dredge, etc., were seized by defend- 
 ant, acting collector of customs, under orders 
 from the Commissioner of Customs, Ottawa, 
 some time in June, 1874, and an action of 
 replevin was brought by plaintiffs to recover the 
 same. It was proved on the trial by the admis- 
 sion of the plaintiff E. that a sum of at least 
 $8,000 had been advanced under the mortgage, 
 but the plaintiffs claimed that a balance was 
 due from the department on account of work 
 done under the contract and specification, and 
 for extras, exceeding all sums advanced or paid 
 to the plaintiff E. by the department. 
 
 Held, that under the contract and the mort- 
 gage, an advance having been proved, the Crown 
 had a right to authorize the defendant to effect 
 seizure of the property, and that the evidence 
 given of work done under the contract was 
 against the policy of the Public Works Act, 31 
 Vic, c. 12, and furnished no answer to the 
 claim of the Crown upon the materials. 
 
 Evam et al. v. Has, 1 R. & C, 163. 
 
 66. Sale — Order Of— Discretion — The 
 
 granting of an order of sale of mortgaged premi- 
 ses after foreclosure, where the interest of the 
 mortgagor is only contimjent, is discretionary 
 with the Court of Equity ; and that Court hav- 
 ing refused an order of sale in such a case, when 
 the mortgagor made default, the Court dismissed 
 the appeal therefrom. 
 Wilkins J., dissenting. 
 
 Hutchinson v. H'itham et al., 1 Old., 640. 
 
 67. Sale of premises sought, on non* 
 
 payment of mortgage, under 4th R. S., c. 103 
 —Practice — A writ of summons was issued 
 
911 
 
 MORTGAGE. 
 
 912 
 
 commanfling defendants to apj. r in the Su- 
 preme Court at Truro at the suit of tlie plain- 
 tiffs, who alleged that defendants were indebted 
 for principal and interest on a mortgage reciting 
 the proviso for redemption. The writ procee<led 
 to set out an amount due on a promissory note 
 of defendants for the same amount as the mort- 
 gage, given as collateral security, and prayed 
 that in default of payment the equity of redemp- 
 tion should be foreclosed and a sale of the prem- 
 ises made. Defendants treated the suit as one 
 brought in this Court under 4th R. S. cap. lO.S, 
 and not as an equity suit, and pleaded various 
 grounds of defence. Tlie cause was twice tried 
 and the verdict for defendants was in each case 
 set aside by the Court in banco. Defendants 
 then took a rule iii-ii to rescind the rules setting 
 aside the verdict on the ground that the Court 
 had no jurisdiction, the suit being an equity 
 case. 
 
 Hfld, that although the writ was not in strict 
 conformity with the procedure pointed out in 
 cap. 103, yet the Court had jurisdiction to deal 
 with the case, not as one brought for the fore- 
 closure of an equitj' of redenij tion, but as one 
 in which on non-payment of vhe mortgage and 
 note an order of sale of rhe premises was 
 sought and it was too late to raise the question 
 of want of jurisdiction grounded on an infor- 
 mality in the writ which had been waived by 
 defendants pleading to and defending the cause 
 as an action at common law. 
 
 Lynds et al. v. Hoar el a/., 2 R. & G., 237 ; 
 
 IC. L. T.,710. 
 
 68. Surplus proceeds— Claim of lien Tor 
 
 taxes — Defendants' testator mortgaged certain 
 property to plaintiff, who afterwards foreclosed, 
 and the property was oflFered for sale April lOth, 
 1 876, and bid in by John McDonald, who paid a 
 deposit of $.300, but failed to complete the pur- 
 chase. The property was again offered for sale 
 November 19th, 1877, and realized a sum which, 
 with the deposit paid on the first sale, satisfied 
 the plaintiff's mortgage, and left a surplus of 
 $322.29. Upon this surplus a claim was made 
 under R. S., cap. 21, sec. 81, for taxes due by 
 testator for 1874-5-6-7. 
 
 McDonald, who had bid in the property at 
 the first sale, held a second mortgage upon it 
 to more than the amount remaining in the 
 Sherifif's hands. 
 
 Held, that the Statute was not applicable to 
 the case, as the sale referred to in the first 
 branch of the section was a sale by the person 
 owing the rates at the time of the sale, whereas 
 the testator had conveyed the property by the 
 mortgages before the rates had become due, and 
 
 the property had not been taken un<ler luiy 
 "process of law" within the meaning of the 
 words in the latter part of the section. 
 
 niack v. Murray tt al., R. K. D., 311. 
 
 69. Surplus proceeds -Contest for-Rej;. 
 
 istration of instrument not contemplated by 
 the Registry Act— No notice— Mitchell, wlio 
 had been the owner of three lots upon wliicli the 
 plaintiff held the mortgages foreclosed in the 
 present suit, conveyed one of the lots, known iia 
 the Chebucto Foundry lot, to Montgomery iiml 
 Budd, by deed registered in 1866. lu 1 871, 
 Budd became insf)lvent, and his assignee con- 
 veyed his interest in the lot to Montgomery, liy 
 deed registered in 1871, after which, in Octoljur, 
 1872, a mortgage was made by Montgonifiy to 
 Stairs, which was recorded in November, \S''2. 
 Previous to Budd's failure, Montgomery ami 
 Budd had entered into an agreement witli 
 Mitchell, reciting that plaintiflf held mortgages 
 on certain property of Mitchell, on which tliere 
 was due .?Ui,000, that Montgomery and Biiilci 
 had purchased part of said property, and as 
 part of the consideration therefor agree<i to 
 assume the said mortgages and relieve Mitchell 
 therefrom, and the instrument contained cove- 
 nants to indemnify Mitchell, his heirs, &c. , frcmi 
 all actions which might arise in con8e(iuence of 
 the said mortgages covering more laiul than that 
 purchased from him, or in consecjuence of the 
 bonds given with the said mortgages. This 
 agreement was registered, previously to the 
 mortgage to Stairs, but was tmknown to him 
 and to Wylde, Hart & Co., who were interested 
 with him in the mortgage, until after the iiiort- 
 gage was recorded. The Master, reporting as 
 to the disposal of the surplus proceeds, treated 
 Stairs as the first incumbrancer, after the plain- 
 tiff, on the property over which his mortgage 
 extended, and exception was taken to the 
 report on the ground that effect had not been 
 given to the agreement registered previously. 
 
 Held, that, although Montgomery, if lie iiad 
 not given the mortgage, and those claiming luider 
 him, if they had knowledge of the existence of 
 the agreement when they took conveyance from 
 him, would have been deprived of any rigiit to 
 the surplus funds, the agreement in queatiou 
 was not an instrument, the registration of whicii 
 was contemplated by the Registry Act, and 
 therefore the registration of it could not lie 
 deemed to be notice of its existence and con- 
 tents to a party claiming under a deed or mort- 
 gage for valuable consideration, and that Stairs 
 and those claiming with him, not having 
 received actual or constructive notice of its 
 existence when the mortgage was te.ken, were 
 
913 
 
 MORTGAGE. 
 
 914 
 
 to be consiilered as bona Jide mortgagees, unaf- 
 fected by it. 
 
 Cotjswdl V. Uraham, R. E. D., 30. 
 
 70. Surplus proceeds -Right of assignee 
 
 who has advanced amounts to prevent fore- 
 closure— Contest for — R. M. & Co. sought to 
 have surplus proceeds arising out of a sale under 
 foreclosure applied to a recorded judgment held 
 by them against the mortgagor. The judgment 
 was recorded in May, 1874. Plaintiff's mort- 
 gage had been recorded in 1809, anil a prior 
 mortgage of the same property had been re- 
 corded in 185"). Defendant having become 
 insolvent, his assignee, in order to prevent the 
 sacrifice of liie property, paid off the mortgage 
 last mentioned and the interest on plaintiff's 
 mortgage, receiving from the liolders of the 
 mortgage which he paid an instrument in which, 
 after reciting payment of the prineiptvl and in- 
 terest, it expressed that the bond was delivered 
 up to be cancelled (which, however, was not 
 cancclletl, but was produced witli the mortgage), 
 and that they remised, released, and (juitted 
 claim to him, as assignee, x\vi land therein 
 mentioned, and all the right whiui they had as 
 executors, and all sums mentioned therein, to 
 have and to hold to the said K., as assignee 
 as aforesaid, his successors and assigns. 
 
 Hdd, ^-hat this instrument, though inarti- 
 ticially drawn, was open to the construction that 
 it was a satisfaction of the debt as between the 
 executors and tlie assignee, but conveyed to the 
 latter all their interest in the mortgage as 
 against subsequent incumbrancers ; but that, 
 even assumin- 'hat it was a release of the mort- 
 gage, and not an assignment, the assignee had a 
 prior claim to the surplus proceeds for the 
 amoiui'.s lie liad advanced on the mortgage to 
 pre ent foreclosure ind sale, subject to a credit 
 for any amounts received by him for rent of the 
 mortgaged premises. 
 
 Bond V. Hiitchimon, R. E. I)., 443. 
 
 of the house to the soil was conflicting, but it 
 had been occupied as a dwelling Inmse, had n, 
 cellar under it in which vegetables were protected 
 from the winter, rested partially on stone, and 
 had a drain to the depth of five feet to a neigh- 
 boring brook. Plaintiff brought trover for the 
 house, and the jury found for defendant. 
 
 Htld, that the house was part of the realty, 
 and on being severed iiecame the personal 
 property of the plaintiff; that the phiintitf was 
 the proper party to bring the action, as the 
 mortgagee could not do so before entry. 
 
 Smith, J., htnitante. 
 
 McDonald, J., diosentimj, held that the mort- 
 gagee had the legal title to and constructive 
 possession of the property, and therefore plain- 
 tiff could not sustain the action. 
 
 Reynoldx v. Dechman, 2 R. & (!., 459 ; 
 2C. L. T.,261. 
 
 12. Tessel, mortgage of— 
 
 Ste SniPPIXG. 
 
 73. Widow's right to dower In equity of 
 
 redemption — A widow is entitled to dower in 
 her husband's equity of redemption in a case 
 w!iere she was a party to a mortgage for the 
 purpose of releasing her dower, under the Pro- 
 vincial .Statute, and her claim will be protected 
 by the Court of Chancery in distributing the 
 surplus left after foreclosure and sale of the 
 mortgaged premises, and after payment of the 
 incumbrances to which she was a party. 
 
 CoUint V. Story, James, 141. 
 
 74. Writ of assistance -When reftased— 
 
 The Court of Chancery will not grant to the 
 purchaser uniler a foreclosure a writ of assistance 
 to turn out a party who has been long in pos- 
 session of the premises, and claims title by pos- 
 session and who has not been made defendant in 
 the foreclosure suit, but will remit the purchaser 
 to his action of ejectment at common law. 
 
 IVooden v. Rwihen, James, 429. 
 
 71. Trover for bouse— Mortgagee cannot 
 
 bring, before entry— Plaintiff, in July, 1870, 
 agreed to sell certain land to one Reynolds, who 
 entered into possession under an agreement to 
 pay the purchase money in October, 1870. 
 Reynolds removed a house to the land and con- 
 tinued in possession for a period of about eight 
 years, after which he left the land and sold the 
 house to defendant, who assisted in removing it 
 from the land. Plaintiff, subsequently to the 
 agreement to purchase, executed a mortgage of 
 the property, the date of which does not appear, 
 hut the mortgagee never entered into possession. 
 The evidence as to the nature of the attachment 
 
 75. Writ of dower -When A. purchased 
 
 lands subject to a claim of dower, and mortgaged 
 in fee to B. , 
 Jleld, that writ of dower would not lie against 
 
 A. 
 
 Mc Arthur v. McOilcmy, 2 Thom., 427. 
 
 76. Writ of possession —Refused against 
 
 a party occupying under contract to purchase 
 — On appeal from the refusal of a Judge of the 
 Supreme Court to grant a writ of possession 
 under .'JthR. S.,c. 124,8. 21,itappeared thatthe 
 plaintiff held a mortgage on defendant's prop* 
 erty, and that the property was sohl under 
 
916 
 
 NAVIGATION. 
 
 916 
 
 foreclosure proceedings, and l)ought in by the 
 plaintiff, who rcceivoil a deed from the Sheriff, 
 but that the defendant continued in possession 
 subsequently under an alleged contract to pur- 
 chase. 
 
 Held, that the writ was properly refused, 
 and that the appeal must be dismissed. 
 
 KatUbach v. Sindk, 20 N. S. R., 
 
 (8R. &0.), .S.'W; 
 
 9 C. L. T.,56. 
 
 See, also. Supra, 28 and 74. 
 
 MORTIS CAUSA- 
 See DONATIO MORTIS CAVSA. 
 
 M0TI0X8- 
 See PRACTICE. 
 
 MUNICIPAL CORPORATION- 
 See CORPORATION-HALIFAI, CITT OF. 
 
 MUROER- 
 See CRIMINAL LAW. 
 
 NAVIGATION. 
 
 1. Arm of the ser., nsTlgable— Crown 
 
 cannot grant tlie waters of a navigable arm of 
 the sea, so as to give a rignt of exclusive fishing 
 therein. 
 
 Meisner v. Fannintj, 2 Thom., 97. 
 
 2. Certificate of probable cause for the 
 
 prosecutors seizing a ehi)) or cargo must be 
 granted upon the facts ap|)earing upon the trial 
 of the cause, and not upon subsequent affidavits. 
 
 It is not necessary to prove the facts, which 
 created a probable cause to have been known at 
 the time of seizure. 
 
 False papers, probable cause. 
 
 The Fame, Stewart, 112. 
 
 3. Change of master not indorsed on the 
 
 register, and no bond given by new master ; 
 vessel liable to forfeiture under 26 Geo. 3, c. 60, 
 88. 15, 18 and 27, and 27 Geo. 3, c. 1, s. 97. 
 
 The Friends Adventure, Stewart, 200. 
 
 4. Free Port Act — 97 6eo. 8, c. 27- 
 
 None but the enumerated goods can be ini- 
 ported. Not suspended by war with Spain, by 
 the order in Council, 23 Sept., 1803. Non- 
 enumerated articles only forfeited, not the vessul 
 and the enumerated articles. 
 
 Xuentra Senora Del Carmen, Siawart, 83. 
 
 5. Importation — Putting Into Philadel. 
 
 phia in distress, without landing or entering a 
 cargo, not an importation from thence. 
 
 Touching at Cork for a convoy, and at 
 Madeira, no deviation from a license to sail from 
 Bristol to St. Domingo. 
 
 The Active, Stewart, 169. 
 
 6. Importation— To afotd American em. 
 
 bargo, no excuse for importing into Nova Scotia. 
 The Dart, Stewart, 301. 
 
 7. Importation under 33 Geo 3, c. jO. 
 
 a. 14 — Spirits of turpentine not importable 
 under 33 Geo. 3, c. 30, a. 14, which enacts 
 " that it shall be lawful to import pitch, tar and 
 turpentine, being the growth or production of 
 the United States, from any of the territories of 
 the United States into the Province of Nova 
 Scotia and New Brunswick ; provided siicli 
 pitch, tar and turpentine shall not l)e imported, 
 except by British subjects and in British built 
 ships, owned by Her Majesty's subjects, and 
 navigated according to law." Owners or pro- 
 prietors are the importers meant by the Statute. 
 British subjects resident abroad cannot import 
 
 under it. 
 
 The Nancy, Stewart, 48. 
 
 8. Importation— What constitutes —Clear- 
 ing out to Boston, entering, trading and clearing 
 out from thence to Halifax, an importation from 
 
 Boston. 
 
 The Union, Stewart, 99. 
 
 9. Importation— What constitutes impor- 
 tation under the Revenue Laws— It has lieen 
 decided over and over again, that in order to 
 constitute an importation it is not necessary 
 that vessels should come to a wharf. 
 
 The mere fact of coming into port with goods 
 on board is prima facie evidence of an importa- 
 tion, and is, consequently, clearly a violation of 
 sec. 9 of 31 Vic, chap. 6, where the port is not 
 a port or place of entry, and the goods are 
 dutiable. 
 
 A vessel, while proceeding from the island of 
 St. Pierre, which is a colony of France, to New- 
 foundland, put in at Aspy Bay, in the island of 
 Cape Breton, the said Aapy Bay not being a 
 
917 
 
 NEGLIGENCE. 
 
 918 
 
 port of entry, without neceflnity from atrosa of 
 wciither, and having dutiable gooda on Imard, 
 somn of which goods, tiie evidence went to 
 show, had heen there landed, and no duty at 
 any time paid thereon, 
 
 //(/(/, that, under sec, 9 of 31 Vic, civp. 6, 
 the captain of the vessel had incurred the full 
 penalty of ^8(X), imposed by that section. 
 
 The. Minnie, Y. A. D., 65. 
 
 10. Obstruction in naTlKable water, below 
 
 low water mark — Nuisance — Treapaas— K. 
 
 et a/, brought an action of tort against W. for 
 having pullet' up piles in the harbor of Halifax 
 below low water mark, driven in by them as 
 supports to an extension of their wharf, built 
 on certain land covered with water in said har- 
 bor of Halifax, of which they had obtained a 
 grant from the Provincial (lOvernnient of Nova 
 Scotia, in August, 1861. \V. pleaded inter alia, 
 that " he was possessed of a wharf and premises 
 in said harljor, in virtue of which he and his 
 predecessors in title had enjoyed for twenty 
 years and upwards before tiie action, and had 
 now tlie right of having free and uninterrupted 
 access to and froni Halifax harl)or, to and from 
 the south side of said wharf, witli steamers, &c., 
 anil because certain piles and timbers, placed 
 by the plaintiffs in soid waters, interfered witli 
 his rights, he (defendant) removed the same." 
 At the trial there was evidence that the erec- 
 tions which E. tt al, were making for the exten- 
 sion of their wharf did obstruct access by 
 steamers and other vessels to \V. 's wharf. A 
 verdict was rendered against \V. , which the full 
 Court refused to set aside. 
 
 A^iott et at. V. Wood, 4 R. & G., 276. 
 
 On appeal to the Supreme Court of Canada, 
 Held, reversing the judgment of the .Supreme 
 Court of Nova .Scotia, that, as the Crown could 
 not, witliout legislative sanction, grant to E. 
 e^ al. the right to place in said harbor below low 
 water mark any obstruction or impediment so 
 as to prevent the free and full enjoyment of the 
 rigiit (if navigation, and as W. had shown special 
 injury, he was justified in removing the piles 
 which were the trespass complained of. 
 
 Wood V. E»Hon et a/.,9 .S. C. R., 239 ; 
 4G. L. T., 116. 
 
 11> Offences against law relative to trade 
 
 or revenue may be tried in any Court of Record, 
 or Vice-Admiralty Court, 49 Geo. 3, c. 107. 
 
 Aliens forbidden to act as merchants in the 
 colonies, 12 Car. 2, c. 18, sec. 2. 
 
 The Providence, Stewart, 186. 
 
 la. System of navigation laws in force in 
 
 1813— Utility of that aystem, particularly to the 
 colonies diacuaaed. 
 
 The Economy, Stewart, 446. 
 
 13. To avoid the embargo of the Amerl* 
 
 can government, no excuse for entering a liritish 
 port with non-importable cargo. H it could be 
 admitted aa a juatitication, the embargo lawa of 
 the United .States would in fact operate as a 
 repeal of the laws of Great Britain. 
 
 The Patty, .Stewart, 299. 
 
 See, alHO, SHIPPING. 
 
 NECESSARIES. 
 
 1. For infiint— 
 
 2. For vessel— 
 
 See INFANT. 
 See SHIPPING. 
 
 NEGLIGENCE. 
 
 1. Action against civic corporation for— 
 
 Service of notice of action on Mayor— Non- 
 auit refuaed— Judgment in accordance with 
 findings of jury sustained — 
 
 See HALIFAX, CITY OF, 20. 
 a. Attorney — Liability for negllgence- 
 
 The Court will not, on a summary application, 
 
 hold an attorney liable for costs for negligence, 
 
 unless such negligence is clearly and imequivo- 
 
 cally proved. 
 
 Elliott et al. v. Laddii, 2 Old., 170. 
 
 3. Carriers— Defect that could not be 
 
 discovered— Finding of jury on disputed fact — 
 Plaintiff was a passenger on defendants' steamer 
 to Liverpool. On the voyage the rudder post 
 was carried away, disabling the steamer, and 
 plaintiff returned to Halifax and was carried to 
 England by another of defendants' steamers. 
 The defect in the rudder post was incapable of 
 discovery before leaving port. 
 
 Held, that the plaintiff could not recover 
 damages for delay on the ground of negligence. 
 
 Plaintiff swore that he was ordered out of the 
 steamer and prevented from proceeding in her to 
 Liverpool, as other passengers did. Defendants' 
 captain denied this. The Judge found generally 
 for plaintiff, and there was no contention that 
 the finding was against the weight of evidence. 
 
 Held, that as this was a pure question of fact, 
 the verdict should not be disturbed, and that 
 
919 
 
 NEGLIGENCE. 
 
 020 
 
 the jilaintiff hIumiM ^le allnwcd to anii'iiil hin 
 count, iiiiirtiNticivlly di'iiwii, to cover his cluiiii. 
 iMc'l>(inal<l, ('. il., ilisst iitliiij, 
 
 Xaif V. Allan il u/., « R. & «i., 449 ; 
 
 (ic. L. T., rm. 
 
 4. Carriers — NoKllscnce of— Liability 
 
 for- 
 
 S,: CARRIERS. 
 
 5. City onialinix Liability ol, for ncgll. 
 
 gence of party leaving earth on the street— 
 
 Sll HALIFAX, CITY OF, 25. 
 
 6. Collision -Caused by negligence - 
 
 SV' 8HIPPIN0. 
 
 7. Contractor— Siilll or want of Nklll or 
 
 —Question for jury— Where the jury found a 
 verdict for plaintiff in an action ex contractu 
 against a profcHHional house mover for damages 
 sustained in conse(|uence of the defendant's 
 unskilful conduct in I'emoving a house, and it 
 had been left to the jury on the trial to discern 
 whetlier tjie defendant had displayed ordinary 
 skill and was or was not chargeable with mis- 
 management of the operation, the Court dis- 
 charged with costs a ride ntsi to set the verdict 
 aside, the jury being the proper judges of the 
 skill or want of skill exercised by the defendant. 
 VicLi V. Chute, 1 R. & C, 1.59. 
 
 8. Contributory negligence -Use ofwtaarr 
 
 — Defenilant iiired to plaintiff, for two dollars, 
 a wharf at Whycocomagh, for the purpose of 
 shipping cattle. The wharf was in bad repair ; 
 two fif the stringers were defective, one of 
 them being rotten, which, however, could not 
 be seen until it was broken. Plaintiff drove over 
 the wharf eighteen or twenty cattle, a much 
 larger number than had usually been driven 
 over it, and defendant said he would not, if 
 present, hive allowed such a number to go over 
 at once. The cattle becoming frightened on the 
 wharf ran back to the shore, and in doing so 
 broke the imperfect span of the wharf. The 
 ease having been properly left to the jury, they 
 found that the injury was not occasioned through 
 any insufficiency in the whaif, but by the negli- 
 gence of the plaintiff in using the wharf as he 
 did, and they found for defendant. 
 
 Rule refused, Smith and .Tames, J J. , dissenliv;/. 
 McDowjall V. McDonald, 3 R. & C, 219. 
 
 9. Contributory negligence— 
 
 *\€ Suiira 8, and Infra, 17, 18, 24, 
 
 25, 27 & 28. 
 
 10. Damages- Measure of, in action for- 
 
 .V" DAMAUE8, 10 .t il. 
 
 11. Gas Company not responsible to oc« 
 
 cupiers of property for injuries caused by dcfoc- 
 five fittings not the property of the ('oni|)any. 
 
 .SVr 0A8, \,'lkX 
 
 12. Gratuitous bailee MI.>re.tRan('o or 
 
 negligence— I'lainlitf and defendant held notes 
 of 1). S. &.Co., of Philadelphia, for J««I,(MMI iuid 
 ij^.fKK) respectively, liefore uuiturity of the notcn, 
 defendant uutlertook, with consent of the plain- 
 till', who indorsed the note helil by him for that 
 pur|MiMe, to present thu notes to the nmkers in 
 Piiiladelpliia for discount, but there was no 
 agreement exjjressed or implied for any cdni- 
 mission or reward to be paid to defendant. 'I'lie 
 makers declining to discount the notes, defendiuit 
 left tiieni both with Van H., to be retained *\\\\- 
 ject to order of the owners. Van H. deposited tiie 
 notes in a sealed envelojie in the Corn Kxchanye 
 National liank, but afterwards, becoming em- 
 barrassed, fraudulently took the plaintiff's iKJtc 
 from the envelope, got it discounted liy tlie 
 makers and appropriated the proceeds to iiis 
 own use, and afterwards failed. Defendant 
 ascertaining the fact of tjie failure, or fearing it, 
 went on to Philadelphia and secured his own note. 
 
 Hthl, that defendant, being a numtlatary, or 
 bailee without reward, had not been guilty of 
 such negligence or misfeasance in dealing with 
 the plaintifTs note as to render him liable in an 
 action for the loss resulting from Van H. 'a bieach 
 of trust, there being no evidence that tiieailviui- 
 tage he gained in saving his own note resulted 
 from collusion with Van H., and the evidence 
 showing, although tlie fact was not brought out 
 in the pleadings, that the defendant had put his 
 own note in the same hazard with that of tiie 
 plaintiff. 
 
 Wilkins, ,h,<litf<tn/iii(j, held that the defen<lant, 
 in depositing the plaintifTs note with Van H. , was 
 not acting within the scope of his authority as 
 bailee, and was liable for the consequences of his 
 act, but that, as the verdict was in U. S. cur- 
 rency, it should be set aside. 
 
 ffarru v. Sheffield, 1 R. & C, 1. 
 
 13. Halifax City Railroad Company, lis> 
 
 bility of fo:f- d jctages for injuries caused by 
 rail — 
 
 See HALIFAX, CITY OF, -1 
 
 14. Haliflix Street Railroad Companj, 
 
 Limited — Liability of City of Halifax for 
 injuries caused by — 
 
 ^ee HALIFAX, CITY OF, 22. 
 
921 
 
 NEGLIGENCE. 
 
 922 
 
 15. Hirer of property -MlHUKer-When a 
 
 pcr'tciii hiroM ii liorxi! witli u waggon Huutuil foi' 
 lwi> pi'i'MoiiH and takuH thruu, liu in liablu aH for 
 a iniHiiMur if the horsu die. 
 
 Caxfi/ V. Ari'hilutlil, 'J Tiioin., 4. 
 
 in. Landlord undertaking repairs with- 
 out notice to tenant - Injury— Action— I'lain- 
 titV was tenant of a Hliop owned l>y defendant, 
 the tipper portion of wiiiuli was ocuupicd by 
 otluM' tenants. It liaving lieconie neeenmiry to 
 make certain repairs to tiie roof of tlie Imilding, 
 a portion of tiie roof wiw removed at defendant's 
 iiiHtaiifc witiiout notice to tiie plaintitl'. Owing 
 t(i tile negligent inaniiur in wiiieii tlic work was 
 (lone, rain fell into tiie building and ran through 
 ami injured the jilaintilt "s goods. 
 
 //'/(/, that the work was done by the tlefen- 
 daiit at his own risk.aiul that he M'as responsible 
 to the |)laintitl' for the injuries sustained by her 
 ill L'onse(|iience of tlie damage to her goods. 
 
 Simlili, there being a count in wiiich such 
 a claim was made, that it might jiroperly have 
 Iji'wi left to the jury to ascertain the damage 
 Hustained by plaintitV in conse([uence of the 
 liivakiiig up of her establishment and the loss of 
 her l)usiiiess. 
 
 Kii<i/fy V. Mcl/rilth, '.i N. .S. D., 511. 
 
 n. Master and servant— Fast driving— 
 
 Contributory negligence— In an action l)roughl 
 ti) recover danuiges for an injury done plaintifl's 
 horse, driven by his servant, tlirough the alleged 
 unskilful and negligent driving of a horse and 
 sleigli of defendant l)y his servant, one of plain- 
 tilfs two witnesses testified that plaintiti''b 
 servant was driving fast and defendant's servant 
 slowly, and plaintitFs servant, his other witness 
 admitted that he was driving pretty fast, that 
 he saw defendant four or five lengths off, the 
 time was evening and neither party carried 
 lamps, on the wrong side of the road, that he 
 cciiild iiave passed cm the other aide, but kept on 
 as lie was going. There was contradictory evi- 
 dence as to the situation of the parties at the 
 time (if the accident. A verdict found for plain- 
 titf was set aside, the Court holding that the 
 evidence of negligence on the part of defendant 
 was not autiicient, and that plaintiti''s servant 
 Was guilty of contributory negligence. 
 
 Conlon v. Connolly, 1 R. & C, 95. 
 
 IS. Master and sen ant- Fast driving- 
 Right of road — Contributory negligence — 
 Defendant's servant, while driving at a rapid 
 pace on the wrong side of the road came into 
 collision with plointiflf's horse, whereby plain- 
 
 tiff was injured. There being no contributory 
 negligence on the part of plaintitf, 
 Ildd, that defendant was liable. 
 I Martin V. Taylor, 'A N. S. 1),, 94. 
 
 19. Master and servant Liability of 
 
 matiter for injury to servant Where plaintitf 
 was injured by an exphision of gas in defendant 
 company's mine, occasioned by an erroneous 
 plan of the workings, but it was not proved that 
 the company had employed incompetent men to 
 ' ^superintend the mining, and plaintitf was not 
 employed under any H]iecial agreement, 
 
 lli'ld, that he couhl not maintain an action 
 against the company for the injury. 
 Sniitk v. Thi Iiihrroloniul Coal Miiiiiiij Co., 
 
 20. Master and servant — Liability or 
 
 mine owners for injury to employees— Owners 
 of mines are not liable for an injury to a work- 
 man in their employ caused by the negligence of 
 their foreman or superintendent, if they have 
 selected proper and competent persons personally 
 to superintend and direct the work, anil have 
 furnished them with adec^uate materials and 
 resources for the work. The negligence of the 
 jiersons so selected is not the negligence of the 
 master. ( Siu judgment Lord Chancellor Cairns, 
 I WilHOH v. Ihury tt nl., 19 L. T., N. S., p. 33.) 
 ' It is not indispensable, though proper, in such 
 case, that the defendant should plead that the 
 negligence was the negligence of a fellow servant 
 of the plaintitf. 
 
 I (Sk' Stale v. IJndMy, 11 (\ K, N. S.> 429). 
 
 The party asserting the negligence must prove 
 
 it, and the negligence of a servant in such a cafe 
 
 is not the negligence of the tnaster. 
 
 I Campbell v. General Minimj Annociation, 
 
 \ i N. S. 1).,415. 
 
 21. Master and servant — Negligence of 
 
 servant — Defendant's horses and carriages, 
 driven by his servant westerly along Spring har- 
 den Road, met opposite the gate of defendant's 
 stable yard, situate on the northern side of the 
 road, a horse and truck coming in the opposite 
 direction, and instead of passing on the south 
 side, attempted to pass on the side nearest the 
 stable yard the intention of the driver l>eing 
 to proceed to a house a few yards west of the 
 stables, when the horses suddenly turned in 
 towards the yard, knocking down and injuring 
 plaintiff, who was coming along the sidewalk 
 near the gate. A rule having been taken to set 
 aside the verdict found in favor of the plaintiff 
 for S400, 
 Held, that the verdict must be sustained. 
 
 Lownda v. Robinson, 2 R. & C, 364. 
 
028 
 
 NEGLIGENCE. 
 
 924 
 
 it. Municipal liability for nolianre In 
 
 the highway- Special damages— City of Hali- 
 fax liable for non-repair of Btreets damaged 
 by Know or ice- -Notice of action— Lawful 
 traffio- 
 
 S\, HALIFAX, CITT OF, 10. 
 
 23. Nexllgence of carriers— 
 
 Ste CARKIEKS. 
 
 24. Negllsent drivlnK-ColllHlon-Contrl* 
 
 butory negligence — I'liiintitf iiiul ilefendant 
 were driving in opposite directiona ivlong the 
 publiu iiighway after dark, when a colliHion 
 occurred by whicli plaintiff 's carr'ige was over- 
 turned and the plaintiff seriouHJy injured. At 
 the time uf the collision defendant's team was 
 being driven slowly along the middle of the high- 
 way, but it appenred that there was suftiuient 
 room at either side for plaintiflFto pass and also 
 that plaintiff saw defendant's team approaching 
 in Buthcient time to have drawn up and thus 
 avoided the collision. 
 
 Iltld, that in an action brought by plaintiff for 
 negligence, the jury were justified in finding a 
 verdict for defendant. Where the highway is 
 used in the customary way, or in such way as 
 circumstances may make necessary, evidence of 
 actual negligence must be given. 
 
 Jiamk V. milker, 6 R. & (!., 175; 
 
 6 C. L. T., 448. 
 
 25. Negligent driving— Contrlbntorj neg- 
 ligence—Driver liable notwithstanding such 
 negligence, if he could have avoided accident 
 by exercioing ordinary care — In an action to 
 recover damages sustained by plaintiff's son, in 
 consequence of the negligent driving of defend- 
 ant's servant, the learned Judge submitted two 
 questions to the jury : — 
 
 1. Was the injury to the boy the result of 
 the negligence of the defendant or his servant 
 in driving the horses or team, and 
 
 2. Could the boy, by the exercise of ordinary 
 care, have avoided the injury. 
 
 The jury, having found a verdict for defend- 
 ant, under the directions of the learned Judge, 
 as the result of their findings on the questions 
 put to them, the verdict was set aside and a new 
 trial ordered on the ground that the question 
 should have been put to the jury, whether 
 assuming negligence on the part of the boy, 
 the injury could not have been avoided by the 
 exercise of ordinary care on the part of the 
 driver. 
 
 West V. Boutilier, 6 R. & G., 297 ; 
 6 C. L. T., 441. 
 
 ! 26. Power of Court to review evidence 
 
 on appeal -Demand and ref>iHal — I'luintilT 
 J brought action of trover and trespasH for lu'tt 
 alleged to havolieen run over by the M. A. Stiirr, 
 of which defendant was niaHtcr, and judgiiu'iit 
 was given in the County Court for plaintiff. 
 
 IJild, that the presence of the steamer at the 
 place where the nets were fouled was no cviil- 
 encc of negligence, as there was uncontradicted 
 evidence that they were not fouled in the phwe 
 where they were set, but had drifted. 
 
 IIilil, /urlhrr, that a demand of satisfacti<in 
 for the nets destroyed was not u sutlicieiit de- 
 mand on which to base an action of trover for 
 t)i(! remnants of the nets taken on board tlie 
 steamer and saved. 
 
 /'ir Thompson, J. — That even if there was 
 evidence from which the County Court .Judge 
 had drawn an inference of ncglig'mce from the 
 vessel being out of her usual course, such inftr- 
 ence was open to review on appeal. 
 
 Weatherbe, J., dixntntimj, found that tiicre 
 was evidence enoi gh for plaintiff to prevent a 
 non-suit, and the Court could not on appcnl 
 review the finding of the Judge on the facts 
 where the only ground in the rule for appeal was 
 that the judgment was against evidence. 
 
 liarrttt V. SiUtix, 5 R. & 0.,262. 
 
 27. Public street — Liability of party 
 
 excavating, for negligence — Obligations to 
 
 observe conditions of permit — Contributory 
 
 I negligence — Plaintiff need not disprove — 
 
 I Questions submitted to jury— Judge's charge 
 
 — Plaintiff was injured by falling into a trench 
 
 opened by defendant, under a permit from tlie 
 
 I City, across the sidewalk of a public street, for 
 
 the purpose of connecting his premises witli the 
 
 ' main drain. 
 
 I Held, that there was no onus on the part of 
 
 I the plaintiff to disprove contributory negligence, 
 
 I but that the defendant must maintain his ile- 
 
 ' fence independently of the plaintiff's case. 
 
 I Also, that defendant having been guilty of 
 
 negligence in not having a watchman present, 
 
 and nut having observed the conditions upon 
 
 which the permit was granted in that respect, 
 
 the verdict for plaintiff must be sustauied. 
 
 Also, that the character of the evidence justi- 
 fied the Judge in submitting the questions set 
 out in the case to the jury, and that the charge 
 was a proper one. 
 
 Shannahan v. Byan, 
 20 N. S. R., (8 R. & G.), 142; 
 8 C. L. T., 379. 
 
 28. Railway company — Crossing — Em- 
 ployees— Injury caused by a locomotive- 
 While plaintiff was passing over the track of the 
 
92:) 
 
 NEGLIGENCE. 
 
 920 
 
 railway np<Tatccl in cnnncction with <lefetulaiitH' I 80. B«llw«y CrOMinx— Obligation Of COD* 
 
 miiii'M ho wiiH knocktid down l)y a lotonuitivo ' pany running train*- IMiiintifT won leading hi« 
 iiiiil crippled for lifu. At the point whuru phiin- ! hurtiu along a puhliu thoroughfaru which was 
 riff wan injured tht-re were four traclcH, inuluding , crosHod hy the track of defendant*' railway, ai d 
 Bidin^jM Itetwecn the workmen'* hou»e8 and the had reached a jMiint a few feet distant from tho 
 workH widch the men wore ohliged to urotitf j croHHing when an engine, under the control of 
 twice a day, and over which children fre(iucntly ' defendantii' servant, approache<l Buddonly .xtul 
 cnwNed to carry food to men working in the pit. | frightened the liorHe, which Injlted, and threw 
 
 The croHHing had lieen so used for itixteen years, 
 anil at the time of the accident was used as a 
 mad for horseB and carts. The common practice 
 M'liH to lilow a whistle when engines were moving 
 abi>\it, hut on this occasion no whistle was hlown, 
 and the view of the track was obstructed hy 
 8(iiiie hox cars which had l)een left standing U|M)n 
 a stilling close to it. The instant phiintiir passed 
 the hiix cars he was warned of his danger, but 
 he was struck by the engine before he had time 
 t(i escape. 
 
 //(('(/, that the damage was the direct result 
 of the negligence of the servants of defendant 
 lonipany for which the company was liable, 
 and that tliere was no evidence of negligence on 
 the jMirt of the plaintiff. 
 
 Daviy v. London and S, H'. Railway Co., 11 
 Q. li, 1>., '213 distinguished. Verdict for plain- 
 tiff sustained. 
 
 Kiith v. The Intercolonial Coal Minimj Co., 
 « R. &G.,226; 6 C. L. T., 446. 
 
 39. Railway Company Liability for defec* | 
 
 tive condition of cattle guard at intersection j 
 of railway with highway— Cattle unlawfully 
 on highway — Onus of showing negligence in 
 such case on owner of cattle — iiailway Act of 
 1880— Plaintifl's cattle were turned out upon the 
 public highway for the purpose of lieing driven 
 to pasture, and while there unattended, got upon 
 defendant company's line of railway in conse- 
 quence of the defective condition of the cattle 
 guard at the intersection of the railway with the 
 highway and one of the cattle was killed by a 
 passing train. 
 
 fftld, (1.) That the clause of the Act (Rail- 
 way Act, 1880) requiring guards at crossings 
 could not be construed to render the company 
 liable to owners of cattle unlawfully on the 
 highway. 
 
 (2.) That the damage not having been done 
 at the point of intersection, plaintiff was not 
 absolutely precluded from recovering, but was 
 subjected to the onus of showing that defendant 
 might, with the exercise of ordinary care and 
 diligence, have avoided the mischief, and having 
 failed to do so, the verdict in his favor could not 
 atanJ. 
 
 Whitman v. W. di A. Railway Company, 
 6 R. & G., 271 ; 6 C. L. T., 451. 
 
 plainti£r in front of the engine, by which he was 
 run over and sciously injured. I'laintitTdiil not 
 see or hear the train until it was close beside him, 
 and hoard no whistle or bell. The defendants 
 did not plead nor attempt to prove any legislativo 
 authority to cross tho thoroughfare in question 
 with their railway and itsh)comotivesand trains. 
 Defendants were reipiircd by Statute to erect a 
 waridng post at crossings, and to cause a bell to 
 t>o rung or whistle to be sounded continuously 
 from eighty rods beyond the crossing. Neither 
 re(|uirement having been complied with, 
 
 Htld, that defendants were guilty of negli- 
 gence. 
 
 Ritchie, J., dinnentimj as to the facts. 
 
 HolHtUon V. The Halifax Coal Go. , 
 
 '20 N. H. R., (8R. AG.), 517. 
 
 31. Sewer- NeBllsence In leaving open- 
 Liability for — 
 
 Set HALIFAX, CITY OF, '23 & 24. 
 
 32. Sollcltor-Sklll and diligence In ln> 
 
 vesting money — Search of title by Registrar 
 of Deeds— Defendant, a solicitor, practising at 
 Bridgetown, invested money of the plaintiff on 
 a property which was afterwards proved to have 
 been incumbered, in consequence of which plain- 
 tiff sustained loss. The defendant did not per- 
 sonally search the title, and the evidence was 
 conflicting as to whether he had requested the 
 Registrar of Deeds at Weymouth to search it or 
 had relied on a certificate of the Registrar, 
 which was afterwards found to be a forgery. 
 
 The Judge who tried the cause, without a jury, 
 found that defendant was not guilty of negli- 
 gence, and gave judgment for defendant. 
 
 On appeal, the Court in banc differing, semble, 
 in their view of the evidence from the Judge, 
 found that defendant had been guilty of negli< 
 gence in relying on the certificate, instead of 
 having the title searched by the Registrar. 
 
 Per Ritchie, J.— Even if the defendant had in 
 his letter requested the Registrar to search the 
 title, be was to blame, as the reply of the Regis- 
 trar contained no reference to the title, and did 
 not t how that a search had been made. 
 
 Semble, defendant would have acted with 
 reasonable diligence had he caused a search to 
 
927 
 
 NEW TRIAL. 
 
 928 
 
 be made by tlie Registrar, notwithstanding 
 want of diligence by the Registrar. 
 
 Sancton v. Morne, '20 N. S. R., 
 
 Vessel, negligence on part of- 
 
 See SHIPPING. 
 
 pretence of title in tlie defendants and the plain- 
 tiffs would have been entitled to judgment if a 
 third party's name had been on the record, tlie 
 (8 R, &({.), 542. record might now, after argument, be amended 
 by adding such third party as a plaintit)'. 
 
 lioutilier tt at. v. Knock ef at., 2 Old,, 77. 
 
 NEW GLASGOW - 
 ASSESSMENT UNDER BT-LAW. 
 
 See ASSESSMENT, IV. 
 
 NEW TRIAL. 
 
 1. Action on life insurance policy— Judg- 
 ment in favor of plaintiff— New trial with 
 right to amend— A new trial was ordered in an 
 action on a policy of life insurance, in whicli 
 plaintiff had obtained judginunt, the plaintiff to 
 have the right to add parties within a lime fixed, 
 witliout payment of costs. The costs of the ar- 
 gument to abide the final result. 
 
 See INSURANCE, LIFE, 3. 
 
 Mts V. The ^tna Life Im. Co., 
 
 7 R. & G., 363 ; 
 7C. L. T.,409. 
 
 2. Amendment— Adding parties — Bouti- 
 
 lier V. Knock, 2 Old., 77, distinguished — A 
 special verdict in ejectment had been taken for 
 plaintiff by consent, subject to the opinion of 
 the Court. It appeared at the argument that 
 the action had been brought in the name of some 
 only of the individual members of a corporation, 
 and not in the name of the corporation itself. 
 
 Held, Young, C. J., disnentmj, that the ver- 
 dict must be set aside, with costs of trial and 
 argument, and that an amendment without a 
 new trial, as granted in Boutilier v. Knock, 2 
 Old., 77, would not be allowed, the amendment 
 in that case without a new trial being granted 
 solely on acuount of its peculiar circumstances. 
 
 A new trial was granted, with leave to the 
 plaintiffs to amend by adding the names of other 
 plaintiffs. 
 
 Battleman et cd. v. McKenzie et al., 
 
 2 Old., 159. 
 
 3. Amendment— Adding party as plaintiflT 
 
 after argument of rule for new trial — Held, in 
 an action of ejectment that as there was no 
 
 4. Amendment of rule— On tiie reading 
 
 of the minutes, it appeared that the rule nUi for 
 a new trial had been made returnable in tlie 
 November Term. Objection having been taken, 
 tlie Court allowed the rule to be amended by 
 substituting " December " for " November," and 
 the argument proceeded. 
 
 Lonijlf.y et al. v. Northern Imuraucc Co. , 
 
 3 R. &. C, .^)16. 
 
 5. Amendment of rule nisi for,— Rule 
 
 nisi for new trial granted by Judge on circuit, 
 allowed to be amended by inserting grounds 
 brought to the notice of the Court by aflidavit 
 on the first day of term. 
 j McCully V. Dykeman, 3 R. & C, 482. 
 
 6. Amendment — Reftisal of, at trial- 
 
 What necessary in order to make refusal 
 ground for new trial — Defendant was sued as 
 maker of a promissory note drawn by him pay- 
 able to the order of L. J. H. , and indorsed by 
 the payee to the plaintiff. At the trial defendant 
 moved to amend by adding pleas setting out 
 that the note was made for the accommodation 
 of the payee, &c. The motion was refuse<l and 
 jiulgm.ent given for the plaintiff on evidence of 
 the making and indorsement of the note, in the 
 absence of any testimony on the part of defend- 
 ant in support of his pleas. 
 
 Held, on appeal, that the Judge below was 
 right in refusing the amendment moved for, in 
 the absence of any evidence to show that the 
 defendant would be in a position to estalilish 
 the defence he sought to introduce. 
 
 Also, that the rejection of the amendment 
 might have been good ground for a new trial if 
 it had been made to appear from affidavit, or 
 from the evidence given in the cause, that de- 
 fendant would probably be in a position to estab- 
 lish the defence sought to lie set up. 
 
 Halifax Banking Co. v. Gillis, 
 20 N. S. R., (8R. &G.), 406. 
 
 7. Amendment of rule nisi for, allowed 
 
 adding new ground to rule — The Court will 
 allow a rule nisi for a new trial to be amended 
 by the addition of a new ground, 
 
 Elliott V. Smith, 2 Thorn., 8, 
 
 8. Amendment— Unsatisfactory verdict- 
 Defendant contracted in 1853 to purchase sev- 
 
929 
 
 NEW TRIAL. 
 
 930 
 
 erftl lots of l.vnd, and, as being part of one of 
 these lots, took possession of the land in dis- 
 pute, erected fences on it, and built a house in 
 wliich he reside<l for several years. 
 
 At an early period he pointed out to Forbes, 
 tlif adjoining proprietor, the line by which he 
 
 Quaere, whether tiie addition of a deponent ia 
 indispen-sable in an affidavit of justification. 
 Acadia Co-optraliou Society v. Ft:i.ti;r, 
 3 R. &C., 100. 
 
 , , . ,, **'*• Ball on taking out rules to set aside 
 
 ohiiimd, and explained the reasons and evidence ' verdicts— Practice-A verdict was brougiit in 
 on which he did so. After defendant had con- | for plaintitJ' late in the afternoon of the la,st day 
 timied in undisturbed possession for six years, | of the Term. Defendant took out a rule under 
 Foil)es executed a deed of land, embracing that , tiie St .lute to set it aside, putting in bail to the 
 occupied by defendant, to plaintiff, the latter | anionut fixed by the Judge. Plaintiff, objecting 
 beinj. cognizant of all the facts. Plaintiff then i to the bail, served defendant with' a noti.;e 
 brought ejectment. On the trial a ([uestion ! recjuiring tiie bail to justify the same evening 
 mm whetlier tiie piece of land of whicli Forl)es ; This not being attende.l to, the Judge, on the 
 was disseised passed under tiie deed to plaintiff, ^ day following, allowed the plainti'^ enter up 
 und the presiding Judge, on motion, permitted ; judgment. Under tliesc circumstances tlie 
 
 tliu iiiiineof Korlics to be added as a co-plaintiff". 
 A verdict having been found for plaintiff, a 
 rule was taken out to set it aside, and for a new 
 
 t'ourt granted defendant tlie rule for setting 
 the verdict aside. 
 In taking out rules to set aside verdicts, the 
 
 trial, on the ground that tlie land of which ; Ixiil may ho filed without notice, but must 
 I'orbes was disseised could not pass under his ; justify when they enter into the recognizance. 
 (Iced ; tliivt the amendment at the trial, by add- | The justification may he oral before the Judge 
 iiig the name of Forbes as a plaintiff, was made (u- Protlionotary, and, when made, should lie 
 iiiipioperly. and on other grounds. j noted in the recognizance. The justification 
 
 There liaving been conflicting evidence as to , may be dispen.sed witli l>y tlie opposite party, 
 a. conventional line, and there being reason to ' and the substitution of one bail for two may be 
 believe that the whole case niiglit be more tho- | in like manner assented to, and no notice of 
 rouglily brought out on a second trial, for this ^ such bail having been given shall bo required. 
 cause, as well as the other principles involved, Itockii-ell v. lloxs, 1 N. S. 1) I83 
 
 tile rule for a new trial was made absolute. 
 
 Wheelocl- v. Morrison, 1 N. S. D., 332, 
 
 9. Appeal from Justices— Amendment— 
 
 Htid, that when an appeal is taken and jier- 
 fected from a decision of J ustices of the Peace in 
 a suiuiiKiry cause, the judgment below is thereby 
 ip^o facto vacated, and the case stands for a new 
 trial. 
 
 On a second trial, no amendment adding or 
 substituting a new cause of action or ground of 
 defence will be allowed. 
 
 Rand v. Rockwell, 2 N. S. D., 199. 
 
 10. Appeal ft'om Justices to Supreme 
 
 Court— No new evidence can be taken — 
 Kven in a regular appeal from an order of Jus- 
 tices, new evidence cannot be taken in the 
 Supreiiie Court. 
 
 Orer-ieers of Poor for Greenfield 
 
 V. Overseers of Poor for Oonken, 
 1 Old., 095. 
 
 11. Ball, notice of— Rule nisi for new 
 
 trial discharged, no notice of bail having been 
 served during the term or sittings, as required 
 % Rules of Court. 
 
 13. Bond Instead of bail-piece flIed-Rule 
 
 nisi under the .Statute for a new trial discharged, 
 on the ground that a bond was filed instead of a 
 bail-piece. 
 
 McKenna v. Tracy, 1 R. & (J., 392. 
 
 14. Breach of promise of marriage — 
 
 Action for— Evidence of seduction— Pleading 
 —New trial— In an action for breach of promise 
 of marriage, evidence of seduction before the 
 promise was received, although seduction had 
 not been alleged in the statement of claim. 
 
 The evidence was objected to solely on the 
 ground that it was not alleged in the jdeading. 
 
 Scmble, that as the defendant entered into the 
 contract in consecjuence of the condition of the 
 plaintiff, all evidence in relation thereto would 
 be admissible. 
 
 Held, that as the objection that the seduction 
 was before the promise was not taken at the 
 trial, and no reference was made by the Judge 
 in charging the jury to the seduction as an 
 aggravation of damages, the admission of the 
 evidence was not ground for new trial, particu- 
 larly as the damages were not excessive. 
 
 Held, also, that evidence of improper conduct 
 on the part of the plaintiff before the contract 
 had been entered into, and of general reputa- 
 
931 
 
 NEW TRIAL. 
 
 932 
 
 tioii, was properly excluded, as sucli evidence | the same in practical operation " was concerned, 
 afforded no defence to the action ; and if offered but that the shares were not such as were con- 
 in mitigation of damages, should have been so templated by the agreement. New trial ordcrwl 
 tendered, and the attention of the Judge directed unless plaintiffs consented to reduce their vcr- 
 to it. diet to such an amount as the Court considtied 
 
 shares under a Provincial Act, with the uauiil 
 statutory provisions, would be wortli. 
 Durar el a/, v. Burkmr el a/., '2 N. S. U., 460. 
 
 Emhrecy. Wootl, 20 N. S. R., (8 R. & G.), 40. 
 16. Conditions imposed In granting new 
 
 tiiiil as to costs of tlie first trial and of the 
 argument. 
 ■ Irvint v. The Xora Scotia Marine Inn. Co., 
 
 2N. S. D.,510. 
 
 16. Continuance-Dlscretlon-At the trial 
 
 tlie cause was continued a day to enable plain- 
 tiff to get a deposition which could not be found. 
 //ttd, that ' his was no objection to the verdict 
 foi' plaintiff, as the Judge had discretion under 
 R. S., c. 94, sec. 210. 
 
 Foster et al. v. Lamie, 3 R. & C, 269. 
 
 17. Criminal case— Venire de novo— 
 
 See CBIMIXAL LAW, 22. 
 
 18. Damages excessive— \ew trial ordered 
 
 unless plaintiffs consented t" reduce their 
 verdict— The defendants entered into the follow- 
 ing agreement with the plaintiffs : " And the 
 
 said L. Burkner and Francis Ellershausen do , ^i^^g^^.j^g ^^^^ jt was unnecessary to (kcLle 
 hereby, in consideration of the premises, promise , ^^^^jj^j. ^^e verdict was objectionable on oilier 
 and agree, on or before the first day of July, 
 A. O., 1868, to form a company to work a coal 
 mine within said area and elsewhere, and for 
 other purposes, and to deliver to said I. Hunter 
 Duvar and Thomas R. Fraser, at that date, paid 
 up shares in such company to the amount of 
 S8,000 ; and, further, that in the event of said 
 L. Burkner and Francis Ellershausen not form- | 
 
 19. Damages excessive— Discretion -Sec. 
 
 22, C. S. Act, 1875— Sec. 4, Sup. and Ex. C. Am. 
 Act, 1880— Costs— The plaintiff declared on a 
 j special contract for the sale of a vessel '-y the 
 plaintiff to the defendant, averring the perform- 
 ance by the appellant of all conditions precedent 
 necessary to entitle the plaintiff to the paynieni, 
 by the respondent of the agreed price of the said 
 i vessel, and assigning as a breach the non-pfty- 
 j ment of the said price by defendant. The 
 plaintiff further declared on the common counts. 
 The defendant pleaded non-assumpsit, non-de- 
 livery of the vessel, payment and set off. The 
 cause was tried before the Chief Justice of Nova 
 Scotia, and a jury at Amherst, in June, 1.S78. 
 The jury found a verdict for plaintiff for S.3,0()U. 
 A rule nixi was thereupon taken out to set aside 
 this verdict, and this rule was made absolute hy 
 the Supreme Court of Nova Scotia on the ground 
 that the damages were excessive, the Court 
 
 . grounds. 
 
 i McGoivan v. Mockkr, unreported heloic. 
 
 On appeal to the Supreme Court of Canada, 
 
 I ffeld, on motion to quash, Henry, J., dttln- 
 
 tante, that the judgment of the Court ordering 
 
 a new trial on the ground of excessive damages, 
 
 _ _ _ _ _ _ proceeded upon matter of discretion only, and 
 
 ing such company, and having the same in | that such judgment was not appealable, 
 practical operation according to law, and deliver- \ But .see Sup. and Ex. C. Am. Act, 1880, sec. 4. 
 ing such paid up shares as aforesaid, at the date ; Appeal quashed with tlie general costs of appea 
 aforesaid, that then the said L. Burkner and ; to hearing. By fiat of Toschereau, J., a counsel 
 Francis Ellershausen, their heirs or assigns, shall j fee of §50 on motion was taxed. 
 at that day pay to the said I. Hunter Duvar and j Mcaowan v. Mockler, 13th Ocloher, 1S7'J, 
 
 Thomas R. Fraser the sum of §8,000 in cash." ; ^'^- ^^^*'^^' -'^^' 
 
 The defendants obtained an Act of incorpora- 
 tion in the State of Maine, and also anotlier in 
 the Province of Nova Scotia, but they did not 
 
 20. Damages excessive— Excess must be 
 
 outrageous or the jury must have acted under 
 
 comply with the terms of the latter Act, which \ undue motives, gross error or misconception, 
 consequently never took effect. They formed before Court will order new trial— 
 a company, issued stock, and went into opera- | Per McDonald, J.— This was an action for 
 tion under the Maine Act. Plaintiffs declined false imprisonment, and the defendant allowed 
 to accept the stock issued under the Maine Act, ' judgment to go by default. Damages wcfe 
 and brought this action for the purchase money assessed before a Judge of the Supreme Court 
 as payable in cash. Verdict for plaintiffs for by a jury who found for the plaintiff «370, and 
 full amount. ' a rule nisi was obtained to set aside their finding 
 
 ffeld, that defendants had fulfilled the agree- , on the ground of excessive damages, and on the 
 ment as far as " forming a company and having i grounds mentioned in an affidavit. 
 
 It is not 
 
933 
 
 NEW TRIAL. 
 
 934 
 
 necessary to refer to the latter. The declara- 
 tion does not contain a count for certain special 
 damages of S300, which were proved witiiout 
 any objection at the trial, although the defend- 
 ant had counsel engaged. What is more, evi- 
 dence of the amount of the special damages wiia 
 elicited \\inni the cross-examination of the plain- 
 tiff liy tilt defendant's counsel. It does not 
 aj)pear that the learned Judge who presided 
 instructed the jury as to their duty under the 
 pleadings and evidence. IJy the evidence itself, 
 irrespective of the pleadings, it is (juite clear 
 that tlie damages were not excessive, but if 
 exception had been taken to tiie reception of 
 evideiiceof special damages under the declaration, 
 it is more than likely that such exception would 
 have prevailed, and in case it had not prevailed, 
 tlicn, if the rule nisi to set aside the inquisition 
 had buen taken on the ground of the reception 
 of improper evidence, and also on the ground 
 that the learned Judge did not instruct the jury 
 as to tiie special damages, it would be difficult 
 to iipliold their finding. But the ground of 
 excessive damages is negatived by the evidence, 
 and I cannot look beyond the rule nisi for other 
 grounds than those chosen by the counsel who 
 acted for the defendant. The Courts do not 
 favor the setting aside of verdicts in cases of 
 torts for excessive damages, unless such excess, 
 to use tlie words of the authorities, be out- 
 rageous, or unless the Court be satisfied that 
 the jury acted under the influence of undue 
 motives or gross orror or misconception. 
 
 The case of Kniijhl v. Eijcrton, 7 Exch., 407, 
 was brongiit before the Court in an entirely 
 different manner from this. There the rule nisi 
 for a new trial was taken on the ground of mis- 
 direction, here it is not. I think the rule nisi 
 for a new trial ought to be discharged. 
 Foa-lc V. Smith, uiireiwrfed, delivered, Dec. 1S73. 
 
 '21. Damages excessive -Xew trial ordered 
 
 unless consent to reduce verdict — Plaintiff 
 being tlie mortgagee of a vessel caused insurance 
 to be effected to the sum of S5,000 in defendants' 
 office, in addition to §,5,000 insured in the Anchor i 
 Marine Insurance Company. The amount due i 
 to the mortgagee was $5,306 in addition to which I 
 lie had advanced for payment of premiums $5-2:2, i 
 making in all §5,828. Plaintiflf had received I 
 from tlie sale of the vessel $1,207, and from the 
 Anchor Marine Insurance Company §4,493, in 
 all §5,700, leaving a balance of §128. The ver- 
 dict was for §1,325, and plaintiflf claimed to 
 retain it as trustee for the owner. The policy 
 was expressed to be for " E. P. Archbold on 
 account of himself." The only interest he set 
 up in his aflSdavit of claim was as mortgagee, and 
 
 the only authority he proved was that claimed 
 in his statement : " The owner authorized mc to 
 insure further for my own protection." 
 
 Held, that there must be a new trial, unless 
 the iwrties should consent to reduce the verdict 
 to §128. 
 
 Archbold v. The Merchants' Marine Ins. Co., 
 
 4 R. &fi., 98. 
 
 22. Damages excessive-Remedy— Discre- 
 tion—Where the damages awarded by the jury 
 are excessive, but the plaintiff is entitled to 
 recover, the Court, in the exercise of their 
 control over the verdict, may suggest a reduc- 
 tion of the damages, or when the suggestion is 
 
 i declined, may order a new trial on the ground 
 ' of excessive damages alone. 
 
 Clarke v. Fullerton, 2 N. S. D., 348. 
 
 23. Damages excessive — Remittitur or 
 
 new trial— Where the verdict is for a larger 
 ! sum than that claimed in the writ, the Court 
 
 may allow plaintiff to remit the excess or grant 
 
 a new trial. 
 I Mulhall et al, v. Barss, 2 Thorn., 46. 
 
 I 24. Damages excessive — Remittitur or 
 
 new trial — Discretion of Court — Costs— 
 I Where a verdict is found against the charge of 
 
 the Judge, and the uncontradicted evidence of 
 
 the only witness examined at the trial, for a 
 I larger amount than the evidence warrants, the 
 j Court will either order a new trial, or, if the 
 
 plaintiff consent, reduce the damages to the sum 
 i warranted by the evidence. 
 I The Court have power so to reduce the 
 
 damages, with the consent of the plaintiff alone, 
 
 and against the will of the defendant. 
 The (juestion of costs in such cases will depend 
 
 on the particular circumstances. 
 
 Jiisser et al. v. Hart et al., 1 Old., 727. 
 
 25. Damages— Trespass to land- Assess. 
 
 ment of damages — Verdict for plaintiff set 
 aside and new trial granted where one of two 
 grounds of claim not sufficiently proved and 
 verdict found generally— Improper rejection 
 of evidence — Expert evidence — Plaintiff 
 claimed damr.ges for trespass committed by 
 defendant's cattle on his lands, and damages 
 sustained by reason of the overflow of water 
 on plaintiff's land caused by a dam erected by 
 defendant. 
 
 The jury found for plaintiff on both grounds 
 of his claim, assessint; the damages generally 
 
 As to the first claim the Court were of opinion 
 that the evidence sustained the plaintiff's allega- 
 
93c 
 
 NEW TRIAL. 
 
 93C 
 
 tion, but, as the diuiiages were assessed generally, 
 ant) there was sonie doubt whether the liability 
 of the defendant for the overflow of the water 
 was established, the finding of the jury was set 
 aside and a new trial granted with costs. 
 
 At the trial of the claini for trespass by the 
 overflow of water on i)laintirt"8 land caused by a 
 dam erected by defendant, evidence was rejected 
 whicli had been offered by the defen.lant to 
 prove the respective levels of water at the 
 point where the dam was erected, and at the 
 meadow alleged to have been overflowed in 
 conseiiuence of the erection, 'i'he witness whose 
 evidence was rejected testilicd that he was a 
 practical mill builder, that he had erected water 
 power mills, and that in doing such work he 
 luid to take levels to get a height, but that he 
 did not know how to use a theodolite. 
 
 Hi'ld, that the evidence should have been le- 
 ceived. 
 
 Ptr Ritchie, J.— 'I"he weight to he given to 
 the evidence was a matter for tiie jury under 
 the direction of the Court, and the competency 
 of the witness to take levels and to make meas- 
 urements should have been a subject of cross- 
 examination. 
 
 Expert evidence is an opinion by a (lualitied 
 person on facts already proved involving scien- 
 tific or technical knowledge, and is not evi- 
 dence of things done or meas-irements taken 
 which any one is competent to jn-ove, theMciglil 
 to be given to his evidence depending upon his 
 ability. 
 
 Cain V. Uhlman, 20 N- vS. K., (S K. & (i.), 148 ; 
 
 8C. L. T., 373. 
 
 26. Damages-Verdict set aside for excess 
 
 and disregard of Judge's instructions— Remit- 
 titur only eflectual where excess is the result 
 of mistake— In an action for the malicious issiie 
 of a writ of execution, under which certdin | 
 cattle of the plaintiff were taken and sold, the ' 
 jury, contrary to the instructicms of the Judge j 
 that they must find simply for damages, returned , 
 as their verdict a paper awarding the plaintiff 
 the full value of the cattle, together with §100 
 as damages. 
 
 I'he verdict, notwithstanding the entry of 
 remittitur, was set aside with costs, and the 
 cause sent for a new trial. Where a verdict is 
 excessive, the entry of a remittitur will be suffi- 
 cient if the excess is the result of mere mistake 
 and not of an intentional disregard of the in- 
 structions of the Court. 
 
 McKay v. Woodill, 6 R. & (}., 88 ; 
 6C. L. T., 143. 
 
 27. Effect of reserrlng a case for the ftiU 
 
 Court— Plaintiff recovered a verdict for §3,000 
 
 against the defendants, for injuries caused by 
 falling over an unrailed bridge, under a charge 
 l>y which the jury was instructed that the acci- 
 dent resulted from the umloubted negligence of 
 ' those on whom the duty lay of keeping tlio 
 bridge in a safe conilition, anil that the liability 
 of the defendant was a nmtter of law which he 
 , would leave to the full Court. 
 \ Held, i>tr Rigby, J., that the only (luestiou 
 reserved for the Court was whether, as.sumiiig 
 the accident to have resulted from negligeucu, 
 as put to the jury, the defendants were liablf, 
 ' ami that if the defemhvnts were dis.satiHtie(l with 
 ! the charge as to negligence, they should have 
 reiiuired that issue to be put to the jury, and 
 should have included mis>lirection in the ground 
 for setting aside the verdict. Weatherbe, J., 
 coiinirrinii. 
 
 Tliompson, J., dinsentinij, hid, that thi.s was 
 a reservation of a mixed (juestion of law ami 
 fact, and that in the absence of evidence lo 
 satisfy the Court as to the negligence of the 
 defendants, the veniict could not be upliuKl. 
 McDonald, C. J., roiintrriiiii. 
 j Wattoii v. TliL M iirii'-l/ali/i/ of Colch(i.iler, 
 
 ] ti R. & C., 549. 
 
 i 
 
 On appeal to the Siipreim Court of Canada, 
 III Id, that the i>laintiff was entitled to retiiiu 
 his verdict. 
 
 /'(/• strong, J., (Z(W»'n/;/, that there was not 
 sutiicienl evidence of negligence to warrant llif 
 verdict, and the case reserved for the Court 
 being on (juestions of fact as well as law, a nuw 
 trial might have been ordered, notwithstaiuliiig 
 the objection was not taken either at the triiil 
 or in the rule 7iixi. 
 
 Cokhtsltr V. Watson, IGlh March, ISS'j, 
 
 Cas. Digest, 98. 
 
 28. Equal division ofCourt on argument- 
 
 On an eijual division of the Court, the moileiii 
 practice seems to be, that the party who luus oIj- 
 tained a verdict, as a general rule, retains it ; 
 that the Court has a <liscretionary power to 
 order a new trial or re-argument ; that the Cimit 
 may refuse the costs of argument where neither 
 party prevails, and that on appeal from inferior 
 tribunals, the decision below is affirmed. 
 
 Oray v. Steel Co. of Canada, 3 R. & ('■, •'06' 
 
 29. Equltj-EJectment by order of t'lian. 
 
 eery to obtain evidence— Partial findings of 
 jury —Practice— Ejectment tried by order oi 
 Chancery, in order to obtain evidence to k 
 adjudicated on in that Court. Verdict taken by 
 consent, subject to the opinion of the Supreme 
 Court. The Court declined to consider tlie 
 
937 
 
 NEW TRIAL. 
 
 938 
 
 (|ue8tion otherwise than in accordance with the 
 common law practice, and therefore refused to 
 (k'cide upon matters of fact, which shouhl liave 
 lK.'en, but were not found by the jury, and set 
 iinide the verdict, but witliout coats. 
 
 Etter V. Co//p, James, 344. 
 
 30. Equity— Suit to foreclOHe mortgage- 
 Defence of release — Burden of proof — New 
 trial — F. McDonald, deceased, made a mortgage 
 t(i plaintiff which plaintiff brought suit to fore- 
 close. Defendants set out an agreement by 
 whicli plaintiff agreed to relsase the mortgage on 
 receiving three jiromissory nfites made by one 
 McKinnon, to whom part of the land had been 
 sold by the mortgagor. I'laintiff replied that 
 the notes were only taken as collateral security, 
 to lie credited to tlie mortgagor when paid, and 
 that nothing had been paid on account of them. 
 On the trial of the is.sue, plaintiff proved the 
 iviortgagc, and defendants produced no evidence 
 wliatcver. The jury found for defendants. 
 
 N<!il, that the burden of proof of the isstte 
 niisi'd was on tlie defendants, and that as they 
 hud proved nothing, the finding must be set 
 aside. 
 
 .Uiirmy v. McDonald et id., R. E. D., 142. 
 
 31. Equity— Taking out rule under Statute 
 
 —Laches — Where the trial took place in Hali- 
 fiix Ipcfore the Judge in K<iuity, and the verdict 
 WHS found on .September 'J")tli, and the rule, 
 having been refused by the Judge, was not taken 
 out until October .SOth, 
 
 Hdil, that, assuming the plaintiff to have 
 liiid a right to take out a rule under tlie 
 Stiittite, he liad allowed too nuich time to elapse, 
 and liad by the delay lost his right to do so. 
 
 Eaton V. mialhcrlK., R. E. 1)., 48. 
 
 32. Equity -Trial of issues— Practice on 
 
 setting aside verdicts and obtaining new trials 
 —The practice of the Supreme Court on the 
 common law side, in relation to setting aside 
 verdicts and granting new trials, is peculiarly 
 applicable to the trials of issues in Kijuity, on cir- 
 cuit, ami a party dissatisfied with a verdict in an 
 Kcpiity suit, tried on circuit, should apply to the 
 Judge before whom it was tried for a rule ?(;•<(, 
 or, in the event of his refusing a rule, should 
 take it out tinder the Statute, and cannot, 
 having ignored that practice, move tlie E(]uity 
 Court at Halifax to set aside the verdict. 
 
 Chipman, Executor, v. Garazn tf «/., 
 R. E. D.,26. 
 
 33. Evidence -Where the evidence In a 
 
 case is conflicting and contradictory, and two 
 verdicts have been given in favor of the same 
 party, the Court will not disturb the verdict. 
 
 FoMcr V. Fowkr, Cochran, 70. 
 
 34. Evidence — Action against SheriiT— 
 
 \ Failure to give material evidence — Ni?w trial 
 on terms — On appeal from a judgment in favor 
 of plaintiffs, in an action against the Sheriff to 
 recover goods taken by him under execution, 
 it appeared that the defendant at the trial had 
 \ omitted to prove that he represented execution 
 , creditors. 
 
 Hdd, that he could not succeed in his appeal. 
 . A new trial was allowed on payment of the 
 costs of the argument and costs of the day at the 
 trial. 
 
 Johnson tt at. v. Arrhiliald, 20 N. S. R., 
 
 (8R. ltd.), 321; 9C. L. T., 56. 
 
 3.). Evidence— Deposition—Where plain* 
 
 tiff's attorney had taken from the tiles of the 
 Court a deposition taken de IjtHee.xtK on the part 
 of the defendant, but the defendant did not 
 
 ' succeed at the trial in proving the illness or 
 absence from the Province of the witness with 
 sufHcient clearness to entitle him to have the 
 
 j deposition read, if procured, 
 
 H<('d, that the fact of the deposition having 
 been removed from the files of the Court did not 
 constitute sufficient ground for disturbing a 
 verdict in favor of ])laintitf. 
 MfDonald f.t al. v. Mtrch(tnt>i' Marine /«•-■. Co., 
 
 I 2 H. & c, i;w. 
 
 I 
 
 36. Evidence - Discovery of new -New 
 
 trial— In an action against defendants for dam- 
 ages, a verdict was found for plaintiffs, and 
 subseriuently defendants applied for a new trial 
 on the ground of new and important evidence 
 having been discovered, which was unknown to 
 them at the trial, ami which their agent in his 
 attidavit stated was such as he believed wouhl 
 entitle them to a verdict. 
 
 Hi/d, that a new trial ought to be granted on 
 the ilefendants pt-^ing the costs of the first trial. 
 Renner v. Halifax Steamboat Co., 
 
 3 N. S. D., .336. 
 
 37. Evidence— Discovery of new evidence 
 
 — Trespass — New trial ordered— A{)plication 
 was made to set aside a ver<lict for defendant in 
 an action for trespass to land, and for a new 
 trial, on the ground of newly discovered evidence 
 favorable to the plaintiff. At the trial the point 
 submitted to the jury was, whether the defen- 
 dant occupied as tenant of W. or in assertion of 
 
939 
 
 NEW TRIAL. 
 
 940 
 
 his own right. The isHucs submitted to the 
 jury on this point were found in favor of defen- 
 dant. The newly discovered evidence went to 
 show that defendant, on several occasions, had 
 admitted the title of W,, and, if believed by 
 the jury, wouhl be material, if not conclusive, 
 upon the point upon which the case turned. 
 A new trial was ordered. 
 
 Garland v. Cun-y, 20 N. S. R., 
 (8 R. &().), 4. 
 
 38. Eridence — Improper rejection of- 
 
 The plaintiff company, in order to prove a cer- ] 
 tain notice, called their secretary, who testified ' 
 to the loss of the original and to a suliicient i 
 search having been made for it. On cross-ex- 
 amination, he stated that he did not know from 
 whom he had received the original, nor in whose 
 handwriting it was. The paper was tendered, ■ 
 objected to, and rejected, and the Judge also 
 refused to permit the plaintiffs then to introduce 
 further evidence to prove it. Tiie plaintiffs also | 
 offered answers to interrogatories by one of the 
 defendants, whicli were on tile, and the answer 
 of another of the defendants which had not been 
 filed, but which was admitted. These were re- 
 jected. The plaintiffs, thereupon, became non- 1 
 suit. 
 
 Helil, Wilkins, J., (lisieuliiifj, that the dis- '■ 
 cretion of the Judge as to the further examination 
 of the witness had not been properly exercised ; 
 that the answers of the two defendants should 
 have been received, and that the non-suit should ! 
 be set aside. 1 
 
 Windsor Marine Insurance Co. v. Ladd, ; 
 
 2 N. .S. D., 49.3. 
 
 39. Evidence— Improper reception of— 
 
 Improper reception of testimony will not in- 
 validate a verdict for plaintiff, when there is 
 sufficient additional evidence to sustain it. 
 
 RiihM v. Mar'fha/l, .James, .3.S0. 
 
 40. Evidence— Improper reception of evi- 
 dence varying note — Plaintiff sold a mare to 
 defendant for the sum of §140, in part payment 
 of which he accepted an order, drawn by defend- 
 ant on Albert Graves, for $80. 
 
 To an action by plaintiff on the original cause 
 of action, defendant pleaded, among other pleas, 
 •'non-presentment for payment, no notice of 
 dishonor, and effects in the hands of Graves, 
 to the amount of the bill, at the time it became 
 due." The issues thus raised were not put to 
 the jury, their attention being directed to issues 
 on the count for the original cause of action, 
 and to conflicting statements of the parties as to 
 the terms or conditions o.i which the order was 
 received by plaintiff. 
 
 The evidence of plaintiff, for whom the jury 
 found, was ; " The order was not taken as a pay- 
 ment. I said I'd take it, and try and get it ; if so, 
 well and good ; if not, I must have my money." 
 
 Jlttil, that the effect of this evidence being to 
 vary the note, and control its legal operation, it 
 was improperly received, and that the rule for a 
 new trial, shoulrl, therefore, be made absolute. 
 
 Per Wilkins J., dinsenlinfi.— It having been 
 found by the jury that plaintiff did not accept 
 the order on (Jraves in payment of his demand, 
 his remedy on the contract was not suspended 
 or affected by his taking the bill. 
 
 Im/lU v. Allen, 1 N. S. D., 101. 
 
 41. Evidence Justifying a verdict either 
 
 way— Verdict stands — Action of ejectment 
 between adjoining proprietors, the (luestions 
 being entirely matters of fact, and tlie jury 
 having found for plaintiff, although there was 
 sutheient evidence to justify a verdict the oilier 
 way if they thought fit. 
 
 //eld. that the verdict should not be disturbeil. 
 Walker e' at. v. «a.ve»-.<, .3 N. S. I)., 270. 
 
 42. Evidence not taken down by the 
 
 Judsje— No ground for new trial — 
 
 Per McDonald, C. J.— I regret that counsol 
 state that there was evidence on a crucial point 
 which does not appear, Itut we cannot send the 
 cause back merely because evidence was put in 
 which was not taken down by the Judge. We 
 can only look at the evidence as it comes before 
 us. 
 Slocomb v. Morxe, 20 N. S. R., (8 R. & G.), 60. 
 
 43. Evidence of fraud, but no plea of- 
 
 Wliere a verdict was found on the ground of 
 fraud, but there was no plea of fraud on the 
 record, the Court .set the verdict aside. 
 
 Hill V. Archbold, 1 Old., 452. 
 
 44. Evidence of witnesses on previous 
 
 trial — On a second trial an objection made l)y 
 defendant's counsel to using evidence taken oa 
 a former trial was overruled, and plaintifTs 
 counsel thereupon read the evidence of several 
 witnesses on the former trial, including several 
 witnesses called for the defence. 
 
 The presiding Judge ruled that plaintiff's 
 counsel made the evidence of defendant's wit- 
 nesses his own by reading it, and gave judgment 
 for defendant. 
 
 A new trial was ordered. 
 
 Travers v. Mc Murray, 7 R. & G., 509 ; 
 8 C. L. T., 63. 
 
941 
 
 NEW TRIAL. 
 
 942 
 
 43. r vidence— New trial refused, where 
 
 conflict of evidence and no preponderance in 
 favor of unaucceasfUl party— Rule to set aside 
 a vcnliut for dofeiulants in an action tried before 
 a iludge without a jury discharged with costs 
 where tliere was a conflict of testimony on the 
 iiiain (|UCstion on which phiintiff's right to re- 
 cover depended, and no clear preponderance of 
 evidence for the plaintiff. 
 
 lioiren V. Troop et al,, 1 R. & (J., 1,37. 
 
 40. Evidence— New trial reftased where 
 
 evidence to sustain findinga—In an acti'^n of 
 trover for a pair of oxen the learned Judge of 
 the County Court found the following fads : 
 r. H. I)., the owner of the oxen in dispute, de- 
 livered them to H. under an agreement that the 
 latter was to have their use for a year or more 
 for tlieir keep. H., pretending to be the owner 
 of the cattle, executed a bill of sale of them to 
 the defendant, who permitted H. to remain in 
 possession. H. afterwards returned the cattle 
 to (.'. H. 1)., the owner, 'vho then sold them to 
 phiiiitiff, who was a honajtde purchaser for value 
 without notice. 
 
 Ill III, /)(>• McDonald, C. J., that there being 
 evidence to sustain the findings of the Judge 
 l)el()W, or the evidence on the part of the defen- 
 dant not Iming of a character to induce the 
 Court to reverse them, the arrangement nuide 
 by C. H. 1). with H. was not a hiring lease or 
 agreement for sale within the letter or the spirit 
 of the Hills of Sales Act, 5th R. S., c. 92, s. .3. 
 
 I'll- Weatl.erbe, .T., that though the evidence 
 for the defendant as to the terms upon which 
 tiic cattle were held by H. was of a suspicious 
 character, it would have necessitated the grant- 
 ini; of a new trial had not the defendant, ))y 
 permitting the cattle to remain in the possession 
 of plaintiff for 18 months after the purchase, 
 caused the latter to alter his |>osition by incur- 
 ring expenditure in regard to them and by l)eing 
 prevented from taking steps to secure the return j 
 of iiis money. I 
 
 Lewix v. Denton, 7 R. & <}., 2.S5 ; 
 7 C. L. T., ,323. j 
 I 
 
 47. Evidence-Practice on Hetting aside | 
 
 verdict as against— Where a verdict is sought 
 to be set aside solely on the ground of its being 
 ftgaiiist the weight of evidence, the Court will 
 seldom disturb it, unless the weight of evidence 
 largely prepon<lerate8 against it. 
 
 Dewar V. Peardon, 2 N. S. D., 102. 
 
 48. Evidence— Rejection of- Where evld- 
 
 ence is rejected at a trial, the Court will not set 
 aside a verdict, if, had the rejected evidence 
 
 l»een received and a verdict found in favor of liie 
 party offering it, that verdict would have been 
 cleivrly against the weight of evidence. 
 
 Allan V. I'elern e' a/., 1 R. & C, .305. 
 
 49. Evidence - Specific performance - 
 
 Conflicting evidence — Verdict auatained — 
 Amendment — Power of Court to interpose to 
 protect intereata of third partiea— In an action 
 to enforce the specific performance of an agree- 
 ment alleged to have been entered into by the 
 defendants in relation to certain property as- 
 signed to them by one of the plaintifl's, the jury 
 found in plaintifl's' favor. 
 
 The evidence being of a conflicting character, 
 and the case having been fairly submitted to the 
 jury, tho Court refused to disturb their findings. 
 
 The statement of claim prayed that certain 
 money should be paid to the Pictou liunk, but 
 the ju<lgmcnt as entered authorized the plain- 
 tiffs to enforce payment to themselves, it appear- 
 ing that an amendment to that effect had been 
 permitted by the learned judge before whom the 
 case was tried, 
 
 field, that the amendment so allowed cured 
 the objection, but, if it appeared that the inter- 
 est of the Bank, or of other parties interested in 
 the disposition of the fund, required the inter- 
 position of the Court, the Court had the power 
 to make such order in reference thereto, as tiie 
 rights of parties or the justice of the case re- 
 tjuired, without necessitatmg a new trial, if not 
 rcijuired by the facts of the case. 
 
 Kitchin f.l n(. v. McDonald et al. , 
 20N. 8. R., (8 R. &CJ.), ISO; 
 8C.L.T.,380. 
 
 50. Evidence — Telegram — New trial 
 
 ordered where secondary evidence was refused 
 — Principle upon which secondary evidence 
 admitted — In an action claiming danuigcs for 
 wrongfully procuring the plaintiff's son to leave 
 his service and refusing to allow him to return, 
 secondary evidence was offered and rejecte<l of a 
 telegram sent by plaintiff to defendant demand- 
 ing the son's return. 
 
 Held, on appeal, that the evidence should have 
 been received. 
 
 A new trial was ordered. 
 
 The same principle that admits proof that 
 letters were deposited in the [wst office duly 
 addressed, as tending to show that they were 
 received by the persons to whom they are ad- 
 dressed, applies to telegrams. 
 
 White V. Fleminiwj, 20 N. S. R., 
 (8R. & (!.), 335. 
 
 See, also, DEFAMATION, 12. 
 
943 
 
 NEW TRIAL. 
 
 044 
 
 51. EvidenCO— Verdict against evidence— i thia was tlio only (lucstinn for tlie jury, l)Ut tliiil 
 III an iiction for (liiinagi's to iiLiiiitifT'it mill pro- gtiuli timling whh iigiiinHt tiie weight of uviiliMU'c, 
 pcrty iHul privilege liy a dam erected lower as therewaHiiotliiiig toHhowtliat the net procit'dfi 
 down the strcani, and the diversion of a lirook reivlized were not clear of all exjienses, and tliu 
 in such a manner as to raise t lie surface of the burden waa on the plaintiff trt ttliow that tiiero 
 water in the pool below plaintitr'a mill and b(» I were ex|)enses that exceeded 8aid proceeds, 
 interfere with the working of his mill wheel, the j Almon v. Iii'itinh Amtricau A>"i. Co., 
 jury found for the defendant. The Judge who I 4 H. & (1., 4.'{. 
 trie<l the cause after a lengthy analysis of the 
 
 evidence concluded that there was not a single I .M, Evidence— Vcrdlct against Weight Of- 
 material fact in the case in favor of jilaintitf, Where there is no objection to a verdict except 
 which was not conclusively shown by tlie wit- that it is found in the opinion of (he Court 
 nesses for the defence. against the weight of evidence the Court ought 
 
 }[<:hl, that the verdict must be set aside. ' to exercise not merely a cautious, but u strict 
 
 /'(r Rigby, J., that the conclusion arrived at ! and sure judgment before they send the cause to 
 by the jury was not a conclusion at which a second jury. 
 
 reasonable men ougjit to have arrived on tlw lianko/yoraScofiav. Halihiirloii, >hiii\oii, 'X>U, 
 evidence before them, and they hail decided the I 
 
 issues submitted to them without giving sulli- [ 53. EvIdCnCC -VcrdlCt SCt aside by Court 
 
 cicnl weight to the uncontradicted testimony in on review of the evidence— Order fornew trial 
 
 favor of plaintiff. not interfered with by Supreme Court of 
 
 Dinjir V. (r'lK/nr, 3 R. i^ (!., 344 ;, Canada — Plaintiff was obliged to prove titlf. 
 
 •J C. L. T. , 605. His place of beginning was identitied, imd 
 
 his description in tlie grant then read: " run- 
 
 52. Evidence— Verdict against evidence •'•"« s"»t'' •"'- ehains to a large pine tree 
 and Judge's charges— New trial ordered— markcil 'J. (J.,' and thence west, Ac, " To 
 Plaintiff brouglit suit for use and occupation of a reach the loms the line should be extended al)out 
 wliaif. Defendants pleaded never indebted and -''O chains more. To tliat increased distiiiicc x\w 
 gave evidence that part of the wharf was built surveyor's line on the ground exten<lcd, but tlieie 
 on a public landing over which the public had , was no pine tree so marked either at tlie distiiuce 
 for a long period been accustomed to pass for expressed in the description or at the end of the 
 the purpose of landing fish from their boats, surveyor's line. At the latter point, however, ii 
 Defendants contended also that plaintiff couhl /■/"•"(.•t tree was marked " H. (i."aud ".I. (1." 
 not build a public wharf, without leave from the i 'i'be plan attaclied to tiie grant represcntuil the 
 Crown. The Judge charged for plaintiff and the lot as a different shape from that claimed, iuul 
 jury found for defendant. Verdict set aside the area expressed in the grant was inconsistcnl 
 with costs and new trial ordered. ! with jilaintiff's contention. 
 
 Linihay v. Cniijhtona uL, 3 R. & (i., 290. HM, /ter McDonald, C. J., and Weatlieibe 
 
 and Thompson, JJ., that the plaintiff had given 
 no evidence of title to tiie /ocni, and pir Rig'iy, 
 53. Evidence- Verdict against weight of J., that the preponderance of evidence waa 
 evidence-New trial ordered — In an action ! against plaintiff's contention, 
 on a policy of insurance on potatoes in wiiich it j Verdict for plaintiff therefore set aside, 
 was stipulated that tiiey sliould lie free from all (,-„,,,., v. narlilsoii et al., 5 R. & ()., 431, 
 
 average unless general, the plaintiff obtained a 
 
 general verdict by consent. The potatoes arrived On appeal to the Supreme Court of Canada, 
 at the jiort of destination damaged by sea water ITfl<l,, that there was evidence for the jury 
 and very rotten, and evidence was received that that the line claimed by the plaintiff was tiie 
 they were worthless and would not repay the ! western line of his grant. The case, however, 
 expenses of taking them out of the vessel, yet was not so clear as to justify the Court in revcrs- 
 ()S4 bushels were taken out, and deducting ing the decision of the Court below, come to oil 
 charges for duties, custom house, broker and | a review of the evidence ; but was a proper case 
 commission, yielded net proceeds amounting to for further consideration on a new trial, Henry, 
 $'220. SO. It was not shown whether the cost of J., dixitntimj. Appeal dismissed with costs. 
 picking and sorting, &c., exceeded this sum or Oaten v. Davidson, 12th May, ISSo, 
 
 not. Cas. Digest, 516. 
 
 Held, that in view of the general verdict by 
 consent, the Court must assume that the jury 56. EvIdCnCC — VcrdlCt set aside— Pre* 
 had found that the potatoes were worthless, as ponderance of evidence — Plea of set off— In 
 
945 
 
 NEW TRIAL. 
 
 946 
 
 iin action on a bill of rxchan^'c drawn hy jjlnin- 
 titfH anil arocy)tctl liy defcndaiitH the lattor reliod 
 upon a pli'a of Hot off for j,'oods Bold and deli vered. 
 The pieponderaiico of evidence showed that the 
 goods ill (jucHtion were forwarded to i>laintiffn 
 to lie Hold liy them on coininiMMion. 'I'he jury 
 ImvJMj,' found a venlict for defendantn, tiie 
 verdict wan set aaide. 
 
 Mott tt (U. V. Eureka U'oolien Mill Co., 
 
 OR. &(i.,'J74; «C. r..T., 4.^.1. 
 On tii'iKdl to /he Siijirdiic Court oj Canadn, 
 
 Ihlil, that where the Court below in the 
 oxcrciHe of it8 diHoretion lian ordered a new trial 
 <iii the ground that the verdict ia against the 
 wciglit of evidence, the .Supreme Court of Can- 
 iiila w ill not hear an appeal therefrom. 
 
 r.iirvka Woolhti Afilln Co. v. J/oiv, 
 
 11 .S. C. R,,«J1; 6C. L. T.,L'«. 
 
 Hut where new trial granted on (|uestioiia of ' 
 liiw ii» well as of fact, the appeal will be heard. 
 
 Kunka IVoottui Mills Co. v. Moss, 11 .S. C. H., | 
 fll, approved and distinguished. 
 
 Ifoimrd V. The Lninnshirf: Ins. Co., 
 
 11 S. C. H., 92; «C. L.T., •->(!. 
 
 b1. Evidence -Verdict against -Verdict 
 
 set aside as being against the weight of evidence 
 and the .Judge's charge. 
 
 Voxitttr V. Horusliy U al., '^ N. ,S. D.,'J46. , 
 
 58. Evidence — Verdict against, and 
 
 against charge of Judge— Where a verdict is 
 
 fduiid against uncontradicted evidence and the 
 
 tlidi'ge of the Judge, the Court will set it aside. 
 
 Thome v. Shan; \ Old., 542. 
 
 59. Evidence-Verdict against weight of— 
 
 riaimili" testified that defemlent "entered" his 
 premises, as a yearly tenant, at t'90 a year ; , 
 and that "tiiere never was any agreement that 
 lie was to be a inontlily tenant." Defendant 
 testiticd that " the premises were engaged ver- I 
 lally at .'«30 a month." Defendant also jnit in | 
 evidence two receipted accounts from plaintitl', 
 one for "one month's rent of office from 1st 
 Nov. to 1st Dec., 1871, 8.30," and another for 
 four and a (juarter months' rent. 
 
 Mil, that the evidence so largely prepondera- 
 ted in favor of defendant, in the absence of ex- 
 planations by the plaintiflF of these accounts, 
 that the verdict in favor of plaintiff must be set 
 aside. 
 
 Ritchie, E. J., and Wilkins, J., disHentinij. 
 
 O'Xeil V. nWs, 2 R. & C, 205. 
 
 60. Evidence - Verdict against weight of— 
 
 New trial ordered where the testimony of the 
 
 parties was contradictory and the writingH cor- 
 ridiorated plaintilf against whom the verdict was 
 found. 
 
 FiUkrloH v. Chdiminii, 2 N. S. D., 470. 
 
 01. Evidenco-Verdict against weight of ~ 
 
 Practice— Misdirection— At the trial the evi- 
 dence was so conHicting as to have justitied a 
 verdict eitli'^r way. The jury having found for 
 the plaintilf, defendants moved to set the verdict 
 aside, as against the weight of evidence, and for 
 misdirection. 
 
 Ihlil, adopting the rule in Millin v. Taylor, 
 .'{ IJing. N. C., lOft, that where there is no 
 objecticm to a verdict, except that it is found, 
 in the opinion of the Court, against the weight, 
 of evidence, the Court ought to exercise not 
 merely a cautious, but a strict and sure judg- 
 ment, before they sentl the cause to a second 
 
 ': jury. 
 
 A .Judge has a right to express an opinion to 
 a jury as to the merits of a case. 
 
 , A misstatement of a legal jjroposition is not a 
 misdirection unless it touches the very point of 
 the case, going directly to the point which the 
 jury has to determine, limiting and directing 
 their verdict. 
 
 An omission or misdirection by the .Judge is 
 ground for a new trial only when it produces a 
 verdict against the evidence. 
 
 Pilirs V. Silrtr, 1 N. .S. 1)., 7.5. 
 
 62. Evidence— Verdict, setting aside, as 
 
 against — The Court will review a verdict 
 negativing fraud in an assignment of personal 
 property and set it aside when contrary to a, 
 strong preponderance of evidence. 
 
 Falroiii r v. Sairi/i r tt al., James, 277. 
 
 63. Evidence— Verdict« setting aside, as 
 
 against — When— A new trial will seidom be 
 granted upon the ground of the verdict being 
 against evidence, when tlie verdict has any evid- 
 ence to support it, although the evidence 
 strongly preponderates against it, provided the 
 Judg.' who tries the cause is not dissatisfied with 
 the finding of the jury. 
 
 Fraser v. Camtron, .James, 189. 
 
 64. Evidence) weight of- Verdict against 
 
 — Althougli it ia not sutfiident to induce the 
 Court to set .aside a verdict, that the jury have 
 given credit to a single witness on the part of 
 the plaintiff, in opposition to several produced 
 by defendant, yet where a verdict was found 
 for plaintiff on the evidence of one of plaintiffs 
 witnesses, against the evidence of all the defend- 
 ant's witnesses, and against the evidence of one 
 of the only two witnesses produced by plaintiff 
 
•947 
 
 NEW TRIAL. 
 
 048 
 
 on the point in question, the oviilenee o( the I 
 latter not hii\ iiig taken plaintiff by miipriso, an , 
 he hail previously been exaniinoil ile Une ense by 
 defendant. 
 
 //till, that the verdict must \to sot aside. 
 
 SiKHCe V. Wimlxor d' AnHai>ofii li'y, 
 1 R. AC, 106. 
 
 65. Evidence, wi^fht of - Verdict agalnHt 
 
 — Where defendant in an action of trover 
 pleaded accord and satisfaction, and produced 
 in evidence a written receipt in full, which he 
 testified plaintiff had signed on receiving certain 
 goods pursuant to agreement, ami plaintifT testi- 
 fied, " I never signed sucli a receipt as this. It 
 looks like my signature ; I don't tiiink it is. It 
 is very like it. I'd say tiie signature was mine 
 if I didn't see the writing above it," ami again, 
 after hearing defendant's evidence, "he (defend- 
 ant) produced a receipt similar to tiie one pro- 
 duced which I refused to sign. I read the one 
 I signed before doing so," but did not produce 
 any witness to e.\amine the signature as proved 
 by defentlant, and express, if he could, a doubt 
 as to its genuineness. 
 
 Held, that tiie verdict for plaintiff could not 
 be sustained. 
 
 Monliiomery v. Harl, 2 R. & C, 53.3. 
 
 06. Judge giving his opinion of the Diets 
 
 to the jury — It is no ground for setting aside 
 
 averdict that the Judge gave Ins opinion on tlie 
 
 facts to the jury, and recommended them to give 
 
 small damages. 
 
 French v. Wallace, James, 3.37. 
 
 67. Judge who tried cause disapproving 
 
 of verdict— Rule ni4 for new trial— Non-suit— 
 
 In case of a verdict for plaintiff. Court wUl 
 
 grant rule nUi for a new trial if the Judge who 
 
 tried the cause consiilers that a rule ought to 
 
 pass, but not a rule nixi for a non-suit, except t)y 
 
 consent. 
 
 Copi> V. Etler, James, 304. 
 
 68. Judgment for want of prosecution 
 
 where both parties refuse to begin, reversed 
 on appeal — In an action by plaintiffs against 
 defendant, as surviving covenantor, for rent due 
 on a lease, defendant pleaded a plea which was a 
 substantial admission of plaintiffs' case. At the 
 trial, plaintiffs' counsel took the ground that on 
 the pleadings defendant should begin, and rested. 
 Defendant's counsel refused to go on, and moved 
 for a non-suit. Plaintiffs' counsel having refused 
 to become non-suit, the learned Judge reserved 
 judgment, and subsequently gave judgment in 
 favor of defendant, for want of prosecution. 
 Held, that the judgment could not be sus- 
 
 tained. The ])leadings were struck out, and the 
 cause sent back for a new trial ; but, inasnuu'li 
 as tlie Court were of opinion that plaintitfH' 
 counsel should have moved to amend the record, 
 without costs, 
 
 Vkkery el al. v. Price, 7 R. & C,., 51.3! 
 8C. L. T.,61. 
 
 60. Juror related to party -Where a 
 
 verdict was fouml unanimously in favor of tii« 
 defendant in an action brougiit by tiie plaintiffs 
 as executors, but two of the jurors were swoiii 
 to be related to the defendant as second cousinn, 
 u fact which was, unt'l severvl days after the 
 trial, unknown to the plaintiff, at whose iiistiiULe 
 the action had been brought, and whoapijlicd to 
 have it set aside, the Court set the verdict aside, 
 althouj^h the jurors in question were sliown to 
 be equally relatetl to the deceased whoso exeiMi- 
 tors liad brought tlie action. 
 
 Lyiult et al. v. Hoar, 1 R. & C, .3'J:, 
 
 70. Jury-Case wholly for-PIalntlff, a 
 
 passenger from Halifax to Tortland by one of 
 defentlant Co.'s steamers, sued for tlie value of 
 her trunk, wliich she alleged had been placed in 
 the hands of the Co.'s servants and a cliuck given 
 her tiierefor. Defendants denied receipt of tiie 
 trunk, and gave evidence that plaintitV li:id 
 received the clieck, not from them, but from tlie 
 cabman who had <lriven her to the wharf. At tlie 
 trial the learneil Judge was inclined to grant a 
 motion for a non-suit, but consented to hear de- 
 fendants' evidence, and take a verdict suliject to 
 the opinion of tlie Court, whereupon a verdict 
 was rendered, by consent, for plaintiff for tlie 
 full amount claimeil. The question was purely 
 one of facts, the only point of law involved be- 
 ing as to whether the plaintiff ought not to have 
 been non-suited. 
 
 Held, that there should be a new trial, as tlie 
 I case was one for a jury only, and not for tiie 
 Court to decide. 
 
 Stimpson v. The Xew Emjland d- X. S. 
 
 Steatmhip Co., 3 N. S. 1)., 184. 
 
 71. Jury -Case withdrawn from -New 
 
 ! trial— On the trial a motion was made for non- 
 
 i suit. The Judge inclined to the opinion tliat 
 
 ' plaintiff had tailed to establish his case, but not 
 
 j so decidedly as to grant the motion, and it was 
 
 j agreed to withdraw the cause from the jury and 
 
 I refer it to the Court. The evidence was very 
 
 indistinct, and as in view of the pleadings and 
 
 circumstances a judgment could not be given for 
 
 either party. 
 
 Held, that there should be a new trial. 
 
 Campbell v. Halliburton et al., 
 
 2 N. S. D., 111. 
 
949 
 
 NEW TRIAL. 
 
 050 
 
 Vi. Jury -Chance of Judfce to Jury-New 
 
 triiit Kriinteil without CDHtn wlioro thu iluilgu 
 iiiKilo no fornml ulinrgu to thu jury and no uhargu 
 wi\* rcportoil on hix niinutoH. j 
 
 III aim V. Caaaila Fire and Marine. Im. Co. , , 
 
 1 K. k a., 4UI. 
 
 M. Jury- Conduct or-Durlnfc a recemi 
 
 whii'li occurred in tliu progrcnit of ii trial, after 
 nil tiic evidence had l>cen put in, hut the uhming 
 uddrc.iHt's of the CouuHel not yet delivered, one 
 of till' jurors wrtH heard to miy aloud: " The 
 ]iUiiitilT liHH got to get his {Niy and lie will got 
 it." The verdict heing in favor of plaintifT, it 
 wa.H Hiinght to lio Met a.siile for misconduct on the i 
 purt of the juror. 
 
 ///(/, that looking 'it the ciruunistancus under 
 which the remarks were made, there was no 
 gniuiid for diHturliing the vcrdic-t. 
 
 'fhfdih^au V. Em-,-//, 3 N. S. 1)., 31S. 
 
 «t. Jury— DIsoharsc of Jury and Judg- 
 ment ordered by Judge where legal queations 
 only are to be decided— New trial refused — 
 I'kiiiliff liecanie owner hy purchase of all the 
 riglits and property of several companies incor- 
 porated l)y various legislative cnactnionts, for 
 the purpose of constructing or completing a canal 
 between Halifax HarlK)r and the IJasin of Miiuts, 
 and as such owner, brought an action of trespass 
 Rgaiiist defendant for cutting and carrying away 
 a (|uiuitity of ice from the surface of a portion of 
 tlie first Dartmouth Lake, iKiing a portion of the 
 ciuiiil projjerty. 
 
 The learned .Judge before whom the case was , 
 tried, after hearing the evidence for the plaintiff 
 and the defendant, discharged the jury, and 
 ordered judgment to be entered for dcfemlant, 
 on the grounds that the place where the acts of 
 trespass were alleged to have l)een committed 
 had never l)een legally expropriated, that the 
 corporations through which plaintiff claimed 
 had no riyht to the ice but only an easement in 
 the waters, and that the title to the locus 
 involved legal questions only, leaving no nnvtter 
 of fact upon which it was necessary to take the 
 opinion of the jury. j 
 
 fff-lil, on appeal, that the action of the learned '■ 
 Judge in discharging the ji>ry was not groiuid 
 for a new trial, especially as plaintiff's counsel 
 at tiie trial, had been asked if he could sug- 
 gest any matter of fact to ))e submitted to the 
 jury and had admitted that he could not. 
 
 Per .lames, J.— That the Acts of incorporation 
 conferred upon the companies under which 
 plaintiff claimed no title to the soil or bed of the 
 lakes, and that, even if defendant's title had 
 been expropriated, it would have been only to 
 
 the extent nocosMary for the purponon of the 
 canal and would not have interfered witlutefen- 
 dant's title to the l>ed of the lake nor his right 
 to use the waters either in a Huid or congealed 
 condition. 
 
 /Vr McDonald, .1.— That the ease was one in 
 whiuli, under the old practice, the .Judge woulil 
 have been justitied in leaving nothing to the 
 jury, liut, on the contrary, non-suiting the 
 plaintiff, and that, under the present rules, a 
 venlict and judgment could be entered instead 
 of a non-suit as formerly. 
 
 Fairliniil:'* v. Cre'ujhton, U<) N. S, R., 
 
 (8K. &(J.), 83. 
 
 7ft. Jury dlnresardlns Instruction of 
 
 Judge— The legal riglits of the i)artie8 were 
 entirely dependent upon an agreement under 
 seal, and the Judge presiding at the trial in- 
 structed the jury that under the terms of that 
 agreement, anil the facts in proof, there should 
 be a verdict for defendant, nevertheless the jury 
 found for the plaintiff. On a motion tor a new 
 trial, 
 
 Ilild, that as the construction of the agree- 
 ment was a matter for the Court, the verdict 
 .should be set aside, and the rule for a new trial 
 made absolute. 
 
 Whitehead v. Howard, 3 N. S. D., 4.')8. 
 
 76. Jury — General verdict Inconsistent 
 
 with answer to question — The jury found a 
 general verdict for plaintiff ; but in answer to a 
 ijuestion put to them by the Judge, found one 
 of tlie issues raised by the pleadings for the 
 defendant. 
 
 Ili/d, that the general verdict for plaintiff 
 must be set aside and a new trial had, 
 
 J'er James, J., that it could be amended. 
 McKinnou v. McXeill elal.,4R.& (i., 25. 
 
 77. Jury having found on all the fiict, 
 
 Court refused to disturb verdict — Defendant 
 took out a rule under the .Statute to set asi.le the 
 verdict, and for a new trial, upon the ordinary 
 grounds, but the jury having found for the 
 plaintiff ui)on all the issues of fact, the Court 
 refused to disturb the verdict. 
 
 Leonard v. Coijuwell, 1 N. S. D., 121. 
 
 78. Jury— Irregularities In drawing— 
 
 Discretion of Court — A verdict will not be set 
 aside on the ground of an irregularity in the 
 drawing of the jury, where the attorney of the 
 complaining party had the means of knowing of 
 the irregularity at the trial, andmadenoobjection 
 then ; and it ^vas not shown that the verdict 
 was otherwise improper, or that any injustice 
 
051 
 
 NEW TRIAL, 
 
 0.^2 
 
 wftii (lone then liy, <ir that the ofHcor who tlrew <|ucitinna of fact which hn wim r«'i|Uo«tcil hy tliu 
 the jury wuh iiiflucru'ud )iy cornipl or iniiirojK-r fniinwl for thu ilefomlniit to mihiiiit. 
 inotivc'M. I //(/</, thwro U'iiig uiicmitriuliutuil uviiluiuii of 
 
 The griiiitin« of new triuln on account of iiuo}i jKiKneHHion in »liu iihiiiitiflTH favor, tlial tlin loiimu 
 irreguhirities iH entirely in thu diacretion of the |iurHiie<l l>y the Jiidm) wum jimtilieil \mi\vv thu 
 Court. 
 
 CoH'liiKj V. LiCaiii, I01il.,7l7. 
 
 teriMH of M\ K. S., c. 104, S. '.'(». ■-•. 7. 
 
 Where (|ueMtionH of fact are Muhinitteil U> tliu 
 
 jury liy the preHidinnJuil^e wliicii aiiiply covnr 
 
 19. Jury IIMS-DefPt't* In-Not ObJCrted all the Imhiux raine-l liy the |ilea.lin«H, aii<l l.avu 
 
 to at trial— DiHcretion It Im a matter for the nothiiiK lieieMHary to he determined afterwanls 
 
 disi'ietion of tliu Oiurt whether a defeet in the to nettle the inMue» of fact involved in thepkml- 
 
 jury li8t, or in the panel, which Iuvh not lietn ingti, he nmy decline to put any furlheniii.»tjipii<. 
 
 IkHliarn^ it a/, v. lUlliI nl., '.1» N. M. |!., 
 
 (s U. ltd.), IS'.'. 
 
 made a ground of ohjcction at thu trial, i!< a 
 sutticicnt lauHc for nutting anide a verdict, 
 
 The omiHHion of thu rcHidenceH ami jiccujmv- 
 tions of thu jurors in thu lintn retiwned by the 
 .Iu»ticen, 
 
 //(/(/, Mutlicient grounil for <|uaMhing indict- 
 mentB found l>y thu (irand .Jury, and for Netting 
 
 §'2. Jury - Verdict of Jury suHtnlned, 
 
 although againat Judge'H charge, wheru two 
 previous verdictn same way - Contradictory 
 evidence— Receipt for money— On a H\iit to 
 
 anide !.|H;cial jury paneU in cauHes not tried, hut recover a HUin of money claimed l.y plaintitlH to 
 iK.tmitlieicul to dintuil. verdicts in caUHCs where he due from defendantH, the latter jnnduc.Ml a 
 the objection was not made at thu trial, uidess receipt for thu amount which phiintiirs swore 
 it lie shown that injuatiijo haa been done, 
 
 A(ii(e ofSiamaii v. Cniniiliill, .lainus, 94, 
 
 was given under the impression that a bill piiiil 
 
 with others by one of thu ilefendants was a tlo 
 
 bill, whereas it proved to have been a bill for 
 
 oidy ,*,').(!<». The learned .Judge charged the jury 
 
 80. Jury -(lUCStlon for Jury-Wlthdrnwal ^,„^t ^|„, ,„.,.iK.nderan.;u of evidence was with the 
 
 of, by Judge I'laintitr, as assigueu under the p,,^i,„jff,^ ,,„, the jury having f.iund for the de- 
 
 Insolvent Act (.f iStiO, brought an action of f,,,,,,,,,,^^,^ ,i,„i t.^-o previous trials having resultc.l 
 
 in thu same way the Court refused to set tlie 
 verdict aside. 
 
 Lyiuhit Hi. V, Jlonrif nl., ."> H. it (!., I4!<. 
 
 trover against defendant for certain goods trans 
 ferreil by the insolvent thirty nine days bu.'ore thu 
 assiginnent, the transfur buing attacked in this 
 suit as void under section SO of the Act. I'lain- 
 tifT, on the trial, put in evidence a bill of sale 
 
 83. Misdirection A rule for new trial 
 
 made by the insolvent about two mouths pi'c- will be refused where the Court can sec cleiiiiy 
 viotisly to thu assignment, for thu jiurposu of ^\^^^^^ ,.^,1! aiul substantial justicu has been chme, 
 proving contemplation of insolvency on the part \ wrong observation by a .Jutlge on a matter 
 of thu insolvent at thu time of making thu 1 of fm.t, which is left as a matter of fad for llie 
 
 jury, is no ground for a new trial. 
 
 transfer in i|Ucstion. The circumstances con 
 
 nected with the said bill of sale were explained Lordly if al. v. McRw. i-t ft/., .S N. i'^. D., ''- 
 
 ao satisfactorily to the miml of the .Judge, that 
 
 he withdrew thu consideration of it from the 
 
 jury. 
 
 84. Misdirection — Conflicting evidence 
 
 left to jury as matter of law — An actio., of 
 Hi III, on A rule nin for a new trial, that it trover was brought for three .sheep, two of wliii.li 
 should have been left to the jury tfi say what plaintiff alleged that she had brought with hiM- 
 
 effect should be given to it 
 
 Forrtnl, Atiiijnte., v. Almoii il al., 
 
 3R. &C., 110, 
 
 to the residence of (me McKay, with whom she 
 was living when they were taken, and one of 
 which she purchased when there. The sheep 
 were seized as the property of McKay. McKiiy 
 81. Jury- Refusal of Judge to submit andhissister, with anotherwitness.gaveevideme 
 questions to jury— New trial refused — 5th R. substantially the same as that of the plaintiff as 
 8., C. 104, 8. 20— In an action for trespass to land to the property in the sheep and the mode 111 
 by cutting and removing timber, the amount of j which it had been acquired. There was evi- 
 damages having been agreed upon, the .Judge ! dence that the sheep Iwru McKay's mark, ami •> 
 presiding being of the opinion that there was no ■ witness for defendants testified that plaintin 
 other question of fact to l)e submitted to the had admitted that McKay had appropriated to 
 jury, <lirected judgment to be entered in the | his own use her sheep, and that he was to have 
 plaintiffs favor for tlie amount of damages agreed ■ given her others, but had not done so, and that 
 ut-on, and refused to submit to the jury certain i he understood plaintiff's sheep had been killeu- 
 
o.vi 
 
 NKW TRIAL. 
 
 054 
 
 Tliu •IiiiIkii, iiflur rufurriiii^ to tiiu uoiiHiotiiiij; 
 t'viilriii'c, tiilil tliu jiiiy tliut if tliu tlvft'iiilaiitN' 
 cviili'iii'i' wikN triif, it wiiN iMivtlcl iif law tiial the 
 nlii'i'li wt'i'o tml till' iilaJiitiU'M, uinl I") ruoom- 
 iiii'ikU'iI tliuiii to l>i'iii^ ill li vi'i'ilii'l for (U'fuiiil- 
 ,uil-< iipim tliiN gniiiiiil if tlicy timk tliu hiiiiiu viuw 
 iif till' cviilriii'i', iitliliiij; tliiit il woulil 111! liL'tliT 
 fdi till' |iiii'tit'N tliivt tliL'JKiy mIioiiIiI fi)lli>w the 
 liiu, uH it ilupui'tuiu from the tuluit of the Court 
 wiiiilit iiiilv ti'iiil to |iiiitiiiig litigjitioii. 
 
 //.A/, that till! vciilii't must lie net UHiile on 
 till' ^'roiiiiil of iiiiHtlii'tu.'tioii, 
 
 .liUlll'M, J,, ll'uMI IllilllJ, 
 
 Mih/laii V. Iinjtnhiim ,1 a/., '.i \{. ic (i., |(I4. 
 
 h.i. Mlitdlreillon Defendant, aner a 
 
 tiiurse of dealing with |ilaiiititr, who kept a 
 pnriiil Htore, caiiii' to a Hettleiiieiit in uliieli, 
 uitli his eiiiiNent all chargeN for Hiiii'ituoiiH 
 liijiiniH were deducted from IiIn auuount, and an 
 i'(|iiid aiiiDUiit deducted from the creditM to 
 wiiirii he was entitled, then, a halunce lieing 
 strmk, he gave hi.s note for the aiiioiiiit thereof, 
 wliieh was the note Hueil upon. These facts ap- 
 piiuiiig from the plaintiirM own testimony at 
 tilt' trial, the Judge was of opinion that under 
 Hv. l(i of H. S., chap, lit (.'hil Series), the 
 liliiiiititl' should hecomo non-suit, and on Ids do- 
 Lliuiiii,' to do HO, the jury were directed that 
 pliiiiiliir was not entitled to recover, and found a 
 viidict iiccoidiiigly. A rule nisi heing taken 
 to set the verdict aside, 
 
 lltld, that it being clearly shown that the ap- 
 piopriutioii of defendant's credits to the payment 
 »f I'lmrges for spirituous li'iuors had been made 
 witii his full knowledge and consent and without 
 (luii'ssof any kind, there had lieeii a misdiruc- i 
 timi, and a new trial was ordered. I 
 
 Smifh V. McEachrm, 3 N. S. I)., '_>79. ' 
 
 $0. Misdirection In not leaving question 
 
 to jury— I'laintitf was ejected from a building ' 
 in iiiissession of defendant by dropping him from ' 
 a (Idor or window upon a platform below, in 
 coiHwiucnce of which plaintiflfs wrist was frac- 
 tmoil. The jury in answer to questions, found 
 tliiit the injury was occasioned Ity defendant's 
 act ; that defendant, before removing him, had 
 reiniuated him to leave, and that in eflfecting his 
 removal defendant did nothing more than was 
 ncceasary for his removal. 
 
 Held, that there should be a new trial on the 
 ground of misdirection in not leaving it to the 
 jury to say whether the place at which plaintilT 
 «M ejected was a lit and suitable place for the 
 purpose. 
 
 Wcatherbe, J., dissmtiwj. 
 
 Kelly V. Rhodes, 6 R. & G., 524 ; 
 6 C. L. T., 542. 
 
 I 87. MiRdirection, miKieadinxJur) Wlien 
 
 the Judge has miMdirecied \\w jury upon a point 
 of law, ami such niisdiivitioii may have niishd 
 the jury, the verdict will lie aet aiiidu und u new 
 trial granted. 
 
 Liiiti' of Di/i V, lI'Mi'/cr, ■lames, li;t, 
 
 HH. MiHdirertlon MiHMatement of legal 
 
 proposition A misstatemeiit of a legal pro- 
 jiosition is not a misdirection unleds it timches 
 the very point of the case, going directly to the 
 point which the jury have to determiiif, limiting 
 and directing their verdict. 
 
 I'ttifi v. m/nr, 1 N. S. I)., 75. 
 
 HO. Misdirection ofJudge in not eliarging 
 
 jury aH to eflect of certain evidence— 1*. gave a 
 young colt to H. P., who live.l in his family, 
 but there was no evidence of any delivery to H. 
 r. or any possession or use of the colt by him. 
 On the other hand, 1'. continueil to feed and use 
 the colt as bis own until his death, previously 
 to which he gave a bill of sale of it, among other 
 things, to the phiintifl". Some time after the 
 death of P., H. P. sohl to the defendant, against 
 whom the plaintitf brought trover. 'I'he jury 
 having found in favor of the gift to H. P., 
 
 //(/(/, on a motion for a new trial, that the 
 facts mentioned were not sufficient to constitute 
 a gift !ii/ir riros, and that the .ludgo should li.ive 
 j told the jury that no title pas.sed to H. P. instead 
 of leaving it to them to establish the validity of 
 tile gift. 
 
 McFarlam v. Flinn, 2 N. S. I)., 141. 
 
 00. Misdirection -Omission to put ques. 
 
 tion to jury— In an action to recover damages 
 sustaineci by plaintiflT's son, in consecjuence of 
 the negligent driving of defendant's servant, the 
 learned Judge submitted two questions to the 
 jury :— 
 
 1. Was the injury to the boy the result of 
 the negligence of the defendant or his servant 
 in driving the horses or team, and, 
 
 2. Could the boy, by the exercise of ordinary 
 care, have avoided the injury. 
 
 The jury, having found a verdict for defen- 
 dant, under the directions of the learned Judge, 
 as the result of their findings on the questions 
 put to them, the verdict was set aside and a new 
 trial ordered on the ground that the question 
 should have been put to the jury, whether 
 assuming negligence on the part of the ))oy, 
 the injury could not have been avoided l)y the 
 exercise of ordinary care on the part of the 
 driver. 
 
 West V. Boutilier, 6 R. & G., 297 ; 
 6 0. L. T.,441.' 
 
955 
 
 NEW TRIAL. 
 
 956 
 
 91. Misdirection — On tbe trial of an 
 
 action for iiialiuiuuii arrest, the Judge ia nut 
 required, when the evidence touching the facts, 
 upon wliich the question of reasonable cause 
 depends, is contradictory, to tell the jury wliether 
 or not there was reasonalile or probable cause 
 for the arrest, but directs them properly in 
 telling them that, if they find one way on the 
 evidence, there is reasonable cause, if they lind 
 otherwise, there is not. 
 
 Gunn V. Cox, 2 R. & C, 528. 
 The judgment in tliis case was reversed on 
 appeal to the Supreme Court of Canada, on 
 ground of improper reception of evidence. 
 
 a linn V. Cox, 3 8. C. R., 296. 
 
 92. Misdirection — Plaintiff brought an 
 
 action of trover for logs cut and piled by him 
 for his own use on land formerly belonging to 
 John Lytell, who had died intestate, leaving 
 three heirs, among whom were the plaintiff's 
 wife and one of the defendants. A general ver- 
 dict for the full value of the logs was found for 
 the plaintiff, under the direction of the Tudge. 
 
 Held, that the verdict must be set aside on 
 the ground of misdirection, so far as it aflfected 
 the damages, as, even regarding the defendants 
 as wrongdoers, the plaintiff was only entitled to 
 one-third. James, J., dubitante. 
 
 Quaere, whether the plaintiff having admitted 
 
 a tenancy in common with defendants, the latter 
 
 could avail himself of that defence without a 
 
 plea. 
 
 Brittain v. Parker, 3 R. & C, 589. 
 
 93. Misdirection — When the Judge In 
 
 charging the jury told them that "putting out 
 of consideration all admissions that had been 
 contradicted, which on that account he thought 
 they should dismiss from consideration, the 
 plaintiflfa were in his opinion clearly entitled to 
 recover." 
 
 Held, that this was not a misdirection. 
 Morriion et al, v. Thompson, 2 R. & C, 411. 
 
 94. Misdirection — Where the learned 
 
 Judge who tried the cause instructed the jury 
 that the only contract was that expressed in a 
 telegram, and defendant's reply thereto, and that 
 this was a contract upon which the plaintiff 
 could not maintain an action, and withdrew from 
 the consideration of the jury the evidence as to 
 a contract between plaintiff and defendant, and 
 the question as to the reasonableness of the 
 delay, the jury found for defendant, and a rule 
 for a new trial was taken under the Statute. 
 
 Held, per Sir W. Young, C. J., Johnston, 
 E. J. and DesBarres, J., (Dodu and Wilkins, 
 
 JJ., dissentimj), that tlie rule for a new trial 
 must be made absolute. 
 
 Pitts v. Taylor, 2 N. S. D., M78. 
 
 95. Money paid under mistake of focts - 
 
 Want of knowledge of facts must be pleaded 
 and shown— New trial ordered with leave to 
 amend — Judgment was given in the plaintiff's 
 favor in the County Court in an action to re- 
 cover a sum of money paid on a contract for the 
 purchase and sale of a quantity of trees, whicii 
 it was alleged defendant had failed to deliver. 
 
 The sale of trees was made in August, 1882 ; 
 they were shipped to plaintifif in November of 
 the same year, but were never received by him. 
 The defendants were partners at the time of siile, 
 but dissolved partnership in November or De- 
 cember, 188.3. 
 
 Plaintiff alleged that he had paid defeniknt 
 .?280, on January 2nd, 1883, but the only pay- 
 ment appeared to have been by setting off pri- 
 vate debts due by King, one of the partners to 
 plaintiff against the price of the trees. It was 
 urged on behalf of the plaintiff at the argument 
 but not pleaded, that at the time he paid the 
 money he had no knowledge of the failure to 
 ship the trees. 
 
 Held, that the plaintiff in order to recover 
 must plead and show that he was not aware at 
 the time he paid the money of the failure to ship, 
 and that there must be a new trial with leave t« 
 plaintiff to amend. 
 
 Culhert v. McKeen et al., 20 N. S. R., 
 (8R. &G.), 1. 
 
 96. Motion for, must be made on Judge's 
 
 j minutes— The Court will not allow counsel to 
 ' move for a new trial upon leave granted on cir- 
 cuit, except on Judge's minutes of trial. 
 
 Copp V. Etter, James, 3(M. 
 
 97. Motion for, on minutes of counsel- 
 Minutes must be verified — Motion for rule 
 nini for new trial on the minutes of the attorney 
 who tried the cause, the Judge's minutes not 
 being accessible, must be verified by affidavit. 
 
 Stephenson v. Didhanty, James, 339. 
 
 98. New trial ordered as more Just to 
 
 appellant than judgment in his favor— Where 
 judgment in favor of tiefendant was appealed 
 from, and the Court considered that the evid- 
 ence showed a certain amount due plaintiff, and 
 also that he might be entitled to something more 
 than such amount, a new trial was ordered as 
 more just to plaintiff than to give him judgment 
 for the amount shown merely. 
 
 Jmies V. Locke, 5 R. & G., 198. 
 
957 
 
 NEW TRIAL. 
 
 95» 
 
 99. New trial renised-Cause referred to i 
 
 Judge before whom tried for final judgment — 
 Action ngaiiist defendant as indorser of a pro- 
 missory note made by E. B. & Sons. Two issuea ; 
 cif fact were submitted to tlie jury at the trial 
 iiiul found in favor of the defendant. Plaintiff 
 iippealed from the findings. ] 
 
 The evidence lieing in some respects contradic- 
 tory, but the preponderance being in favor of ' 
 iltfendant, tlie Court dismissed the appeal with 
 costs, anil referred the cause back to the Judge 
 before wliom it was tried for final judgment. 
 Tht Commercial Bank of Windsor v. Borden, 
 20 N. S. R., (8R. &G.), 345; 
 9 C. L. T., 58. 
 
 100. Non-Joinder— Objection on account 
 
 of, must be taken by plea in abatement — 
 
 //ltd, that there being no plea in abatement, 
 the objection taken at the argument to the non- 
 joinder of the co-trustees could not prevail. 
 
 Zwicker v. Zi7ik, 2 N. S. D., 291. 
 
 101. Non-8uit entered by consent of soli- 
 citor set aside, and new trial ordered — 
 Costs— Plaintiff's solicitor entered his cause for 
 trial in the County Court, and plaintiff .vaa noti- 
 fied of the fact and requested to attend, but was 
 unable to do so, or to notify his solicitor, on 
 account of illness. 
 
 A judgment of non-suit having been entered 
 against the plaintiff under these circumstances, 
 with tlie consent of the solicitor, 
 
 Held, that the judgment was irregular and 
 must be set aside. 
 
 Plaintiff was allowed a new trial on payment 
 of the costs of the day, other costs to abide the 
 event. 
 
 Walker v. Steioart, 7 R. & G., 182 ; 
 7 C. L. T., 247. 
 
 102. Objection must be talten at trial— 
 
 The Court will not, on a motion to set aside a 
 verdict, give effect to an objection not taken at 
 the trial, and which might have been remedied 
 had it been then taken. 
 
 //(dliburton v. Molloy, James, 246 ; 
 Gdlis V. Campbell, James, 48. 
 
 103. Objection talieu too late— Attorney 
 
 subscribing writ— Chapter 134, Revised Statutes 
 (3rd series), " Of Pleadings and Practice in the 
 Supreme Court," section 197, in reference to the 
 filing of bail in oases where the Judge has refused 
 a rule nid for an appeal, and an appeal is taken 
 under the Statute, is confined in its operation to 
 private parties and does not extend to the Crown. 
 The proceedings having been instituted in the 
 
 name of the Attorney -General of Canada, a rule 
 nisi was taken out to set them aside, on the 
 ground that the Attorney-General of Canada not 
 having been admitted a barrister or attorney 
 under Revised Statutes (3rd series), chapter 130, 
 was not qualified to subscribe a writ in this 
 Province. 
 
 Held, that the objection, not having been taken 
 until after a plea pleaded and a new trial, had 
 been waived. 
 
 Semhle, thai the signing of process in the 
 manner excepted to, if objectionable at all, was 
 merely an irregtilarity and not a nullity. 
 
 Queen v. Ryerson, 2 N. S. D., 276. 
 
 104. Plea of right of way — Evidence or 
 
 way of necessity — Under a plea of right of way, 
 where evidence was received of way of necessity, 
 it is too late to object after the trial that such 
 evidence was not receivable. 
 
 Tetd V. Beebe, 2 Thom., 426. 
 
 105. Reftased and Judgment entered for 
 
 plaintiff where former judgment for defend- 
 ant had been set aside — In an action by plain- 
 tiff to recover damages for the removal of fixtures 
 from property of the plaintiff, occupied by de- 
 fendant as tenant, the latter relied on a bill of 
 sale from Q., a former tenant, by whom the fix- 
 tures had been placed upon the premises, and 
 under whom defendant had gone in. 
 
 The term for which Q. held having expired 
 before the removal of the fixtures. 
 
 Held, that plaintiff must recover, and that 
 judgment for defendant must be set aside. 
 
 Judgment having been given for defendant on 
 a former trial, judgment was now entered for 
 plaintiff rather than send the case back again. 
 
 Harrison v. Smith, 7 R. & G., TAQ; 
 8 C. L. T., 58. 
 
 106. Refused and Judgment ordered by 
 
 Privy Council — 
 
 On appeal to the Pricy Council, 
 Held, that in a case in which the facts and 
 law appear to be entirely one way, their Lord- 
 ships will make tlie presumptions which should 
 properly be made by a jury, without sending 
 the case down for a new trial. 
 
 DtsBarres et al. v. Shey, 28 L. T., 592 ; 
 22 W. R.,273. 
 
 107. Refused, where all fbcts before 
 
 Court — M. R. being about to make a convey- 
 ance of land to V. R., went on the land in com- 
 pfiny with V. R. and fixed the starting point 
 from which the line was to run. A deed was 
 made accordingly. After the death of M. R., 
 plaintiff, his widow, with the consent of V. R., 
 got a surveyor to run the line, which was done 
 
959 
 
 NEW TRIAL. 
 
 960 
 
 from the starting point indicated by M. R., Imt, 
 in conseiiuence of an error ()f the surveyor, on a 
 course five degrees ditferunt from tliat mentioned 
 in the deed. V. R. was not present wlien tiie 
 survey was made, liut sul)se(|uently assented to 
 the line as run, in ignorance of tiie fact tliat a 
 mistake liail ))een made. V. K. conveyed to 
 defendant according to tlie description in Ilia 
 deed. 
 
 II>-ld, that tiic assent given l>y V. H. to the 
 line as run by tiie surveyor was not sutJicient to 
 establish a conventional line. 
 
 All the facts being before the Court, and it 
 
 appearing tliat the plaiiititi' could noi succeed if 
 
 the case was sent to a new trial, judgment was 
 
 ordered to be entered for the defendant with 
 
 costs. 
 
 Miller V. Toulml)!, 17 Q. 1$. D., (JO.*} followed. 
 
 lioarfi V. War,, 7 H. &.ii., .'WO; 
 
 7C. L. T.,377. j 
 
 108. Replevin -Mixture of articles -Jiew 
 
 trial to find which belonged to plaintifT and 
 which to defendant— Wheic phiiutitl' replevied 
 ccrlain logs from defendants, under a bill of , 
 sale, and among those rightfully belonging t(j 
 him were a number belonging to defendants, 
 which tlie la'ter had mixed up with tliem under 
 tiie belief tliat they were all their own, 
 
 Jldd, that there siiould be a new trial, in 
 order that defendants might have an oppor- 
 tunity of proving what part belonged to them 
 and what to the plahiliff. 
 
 Stewart v. Wluckr tt at., 3 N. S. 1)., 414. 
 
 109. Rule nisi for— The Court will not 
 
 reijuire a rule nixi to set forth all the grounds 
 
 on wliich the party liopes to obtain a new trial. 
 
 Moody v. yEtiia I><>: Co., '2 Thorn., 173 ; 
 
 Stanford v. Itdaiul Xariijatloii Co., Itl., 185. 
 
 110. Surprise — Negligence liability of 
 
 attorney for— Affidavits not referred to in 
 rule — Coats — Where a cause which stood num- 
 ber 65 on the docket of jury causes marked for 
 trial on the first day of the sittings was tried on 
 the first day of the jury trials in the absence of 
 the defendant (who swore to surprise) and her 
 witnesses, though her counsel was present 
 throughout the trial and addressed the jury, and 
 her attorney was present at the close thereof, a 
 new trial was granted, the costs of the first trial 
 and of the argument to abide the event. 
 
 Elliott et al. V. Laild'i, 2 Old., 170. 
 
 HI. Surprise — New trial granted on 
 
 ground of— The Court granted a new trial on 
 the ground of surprise, when defendant unex- 
 
 pectedly denied ever having signed an agree- 
 ment which plaintiff swore had been signed liy 
 defendant and 8ulwe(iueiitly lost, on tiie plain- 
 tifl"'8 affidavit to this effect, and also stating liiat 
 one of his witnesses at the trial had since in- 
 formed him that he had once seen the agreement 
 with the defendant's signature on it, and tiiat 
 he was not aware at the trial that sucii uitne.fs 
 knew of the existence of the agreement, 
 
 Stdyy. Purdy, 2 Thoiii., 414. 
 
 112. Title -Evidence of, for Jurj -Where 
 
 the plaintiff relied upon a documentary title and 
 failed in tracing it to the Crown, and gave 
 doubtful evidence only as to the possession of 
 one of tlie })rior owir.'rs, 
 
 //('/(/, that this evidence ought to have lieen 
 left to the jury. 
 
 Lciscx of She y tt al. v. Chisholm, James, 'fl 
 
 I 
 1 
 
 113. Title -Proof Of -Plaintlir claimedto 
 
 liefiwnerof certain logs under a bill of sale limii 
 his fatiier, (!. -M., wlio was tenant in coniiiiDii 
 with the defendant of the land on wliicli tiicy 
 were cut. Tiie trees from wliich the logs were 
 cut had been felled by persons employed liy de- 
 fendant to perform that service, and tiie loys 
 bore his mark. I'laintiff relied largely on an 
 agreement which, he contended, was made lie- 
 tweeii the workmen of both parties and agreed 
 to by defendant, to the effect that wliatcvcr lugs 
 each of the parties "fixed" lliey were respec- 
 tively to retain. Defendant and his .son denied, 
 and tliere was no evidence to shew that he ever 
 had made or sanctioned any such agreement. 
 
 Held, that as defendant's right to tlie logs cut 
 on the land by his laborers could not be atl'ucted 
 l»y an agreement between the workmen, plaintiff 
 derived no title under tlie bill of sale, and Iwv- 
 ing had no legal possession of the logs sued for, 
 the rule for a new trial must be made al)S()lute 
 
 with josts. 
 
 Mitchell V. Lniitz, 1 N. S. 1),, 5IS. 
 
 114. Title-Proof of- Where the plaintiff 
 
 on the trial stated that he had a good title, and 
 nothing was shown liy defendant to inipencl! 
 such title. 
 
 Held, that defendant could not obtain a new 
 trial on the ground that the plaintitl' had not 
 proved a good title. 
 
 Lynch v. lliii'.i, 2 Tlioni., 4l!i. 
 
 115. Trial, short notice of-Where short 
 
 notice of trial was given and a verdict taken for 
 
 plaintiff, subject to objection, the verdict was 
 
 Rpt divide 
 
 Drummond v. Carritt, Jwnes, 26S. 
 
961 
 
 NEW TRIAL. 
 
 962 
 
 116. Verdict entered by Judge Inconsls- 
 
 tent with findings of jury on fact set aside— ; 
 Findings of jury set aside as against evidence ' 
 —Amendment after argument — New trial 
 ordered— 5th R. S., c. 104, s. 21. s-s. 8— Tlie 
 .liidicature Act, sou. '2\, suli-sfc. 8, unuuta thivt, ' 
 ii|i(>ii a trial hy jury in certain eases, the .ludge 
 '•iiisti'ail of directing the jury to give eitlier a 
 Hi'iifial or special verdict, may direct the jury 
 tn answer any t|ue3tions of fact stated to tiieni 
 
 Ijy the Judge for Mlicii piupose ; 
 
 1111(1. on the tinding of tlie jury upon the (jues- 
 ti(jns which tiiey siiall answer; tlic Judge shall 
 enter the verdict," &c. 
 
 PlaintifT, as .Sliuriff of the County of Lunen- 
 liiii';:. levied upon a vessel on the stocks as the 
 pinpeity of one .McKeeii an ahsent or ahscond- 
 iiig (k'l)tor. Defendant, after the levy, took the 
 vussfl ott' the stocks and disi)f).scd of her, claim- 
 ing \niiler a liill of sale from McKeeii executed 
 liffdic the attachment. I'laintitf thereupon 
 liidught trover. 
 
 The evidence on the trial showeil conclusively 
 tliat tiie hill was executed fraudulently, and 
 till' jury having found all the (juestions of fact 
 >iiliiiiittc(l to them in favor of the defendant, 
 till' .ludge, disregarding tiieir findings, entered 
 a vunlict for plaintitl' with costs. 
 
 /A/il. that the words of the Act, "on the tind- 
 iiigs of the jury," etc., mean consistently with 
 "ikll tilldillgs. 
 
 Uefeudaiit gave notice of motion "on ap- 
 peal from the judgment" of the Judge, "aiul 
 that juilgment he entered for the defend- 
 ant, on the groun<l that, upon the findings, the 
 jiiilgiuent is wrong." I'laintiH' up to the close 
 lit tile argument did not nu)ve to set aside the 
 timling!!, l)ut ohtaine<l leave to move to amend, 
 N' as to leave that course open to liini, and he 
 niuved accordingly. Dcfeiulant after the argu- 
 ment moved to amend his notice so as to cnahle 
 liini to move to set aside the verdict. Both 
 iimendments were aHowed, there hcing no sur- 
 prise to either party, aiul neitlier having com- 
 plained of any such thing, or given any valid 
 leason why such amendments should not he 
 idliiwed. The Court set aside hotli verdict and 
 tiiidings at the same time at which they gave 
 iuilgnicnt allowing the amendments. 
 
 Creii/hloii v. S/iinmi/, 7 R. & <i., lO'J ; 
 7 C. L. T., 14.-). I 
 
 lit. Verdict set aside as unsatisfiictory- ! 
 
 New trial confined to one issue— The note in 
 suit iiad heen given hy defendant's father to 
 pluintitfout of affection and regard for plaintiff's 
 motiiei. Defendant pleaded that the note was 
 "litaiiied l>y fiaud, that at the time it was made 
 l»9 father was in a state of mental indtecility, 
 
 81 
 
 and that there was no good or valuahle consider- 
 ation. On the trial, the defence of want of 
 consideration was not urged, and the jury foun I 
 for plaintiff on the other two i.ssues. 
 
 J/i'til, that there nuist i)e a new trial, confining 
 the in(juiry thereat to the iiuestion of consider- 
 ation. 
 
 liaker v. Hiad, 1 N. S. D., 199. 
 
 118. Verdict set aside-New trial confliied 
 
 to trial of one issue — l'laintitt"'s vessel having 
 run ashore, after ineffectual efforts to release her 
 from the rocks where she lay, he gave notice of 
 ahandonment, which the uiulerwriters refused 
 to accept. 
 
 They, in the interest of all concerned, very 
 soon had her removed, and repaired at a total cost 
 of .«!1;{(H), and then tendered her to the plaintitl', 
 who refused to take her, and hrouglit suit for the 
 full amount of the insurance. The defendants 
 appealed from the verdict in i)laintiff's favor. 
 
 //(/</, that there should i)e a new trial in whicli 
 the inijuiry should he limited to whether the 
 loss was total or partial, the (juestion whether 
 there was or was not any loss having heen set- 
 tled hy the first trial. 
 
 JJili-isor V. Thi: Prorindal Ins. Co. of Canada. 
 [ 2 N. .S. ])., 'JO. 
 
 119. Verdict-Setting aside-Where there 
 
 is evidence on which the jury has passed, ami 
 no principle is involved, the Court is not dis- 
 posed to grant a new trial in matters of miiuir 
 importance. 
 
 I'laintiff was a shareholder in defendant com- 
 pany. A call of .'?3 per share was made, which 
 plaintiff refused to pay, contesting its legality. 
 .Suhsecjuently he sold his shares, hut the com- 
 pany's otiicers would not nmke the transfer until 
 the call was paid. I'laintiff thereupon hrouglit 
 an action against the company for such refusal. 
 The jury found for the defemhmt company. 
 
 //'/'/, that the verdict could not hedisHwhcd. 
 Whiti V. Yarmoutk (las Liijht Co., 
 
 1 N. S. I)., 204. 
 
 120. Verdict -Tlie Court will not send a 
 
 special verilict hatjk to a jury to decide upon a 
 presumption wliich they would not l)e justified 
 in finding. 
 
 Le.isee of Archibald v. lilois, James, 307. 
 
 121. Verdict— The question in this case 
 
 was simply one of fact, and the jury having 
 found for plaintiff, the Court refused to set the 
 verdict aside. 
 
 O'Mullin cl al. v. McDonald et al., 
 I R. & C, 46. 
 
963 
 
 NON-SUIT. 
 
 964 
 
 122. Verdlct-Wbcro the question at is- 
 sue was puri'ly one of fiat, involving no legal 
 point whatever, an<l the Judge left the whole 
 iliarge open to the jury, who found for plaintiff, 
 
 //(/(/, that the verdict could not be disturbed. 
 Lyon V. Morton, 3 N. S. 1)., 4'>(). 
 
 123. Verdict - Where the verdict was 
 
 given in favor of the plaintiff, with the approval 
 of tlie Judge who tried the cause, the only ques- 
 tions involved being matters of fact, the Court 
 refused to set the verdict aside, seeing nothing 
 in the case that obliged them to do so. 
 
 Mooily v. Fuulkuir, 1 R. & C, 154. 
 
 NON.JOIXDER- 
 Stt PKACTllE. 
 
 NON-PROS. 
 
 1. Notice Of non-pros may be given at the 
 
 close of the second sittings after the cause is at 
 issue, although the cause has not been called 
 and passed. 
 
 irtneral Mininij Anxociufioii v. Victoria 
 
 Coat Miniiuj Co., 3 R. & C, 479. 
 
 2. The Court will not grant a rule for 
 
 non-pros for not proceeding to trial, even after 
 a peremptory undertaking to try entered into 
 by plaintiff the previous term, where there ia a 
 serious intention to try tlic cause on the part of 
 
 tlie plainlitl'. 
 
 O'Connor V. Fi^htr, James, "269. 
 
 NON-SllT. 
 
 1. (ilrounds In rule not sufflclert-ZA/'', i" 
 
 an action of trespass where the jury ,o\nid a ver- 
 dict for plaintiff, that the verdict settled the 
 issue of possession in favor of [jlaintiff, and that, 
 if not, the defendant could not ask for a new 
 trial in onler that the jury shouM pass upon this 
 ((uestion, the only grounds in the rule being that 
 the verdict was against law and that the plain- 
 tiff had no title by deed to the land to which 
 that claimed was an accretion. 
 
 Ihirnham v. Dari'Xh . 5 R. & O., 388. 
 
 Affirmed ou appeal to the .Supreme Court of 
 
 Canada, 17th Ftbruury, lUSo. 
 
 Cas. Digest, 515. 
 
 2. Judgment for defendant, Ac. In an 
 
 action by plaintiffs against defendant, as surviv. 
 ing covenantor, for rent due on a lease, defen- 
 dant pleailed a plea wiiicii was a substaiili.il 
 admission of plaintiffs' case. At the trial, pliiin- 
 tiffs' counsel took the ground that cm the pleiiil 
 ings defendant should begin ami rested. Delen- 
 ilant's counsel refused to go on, antl moved fcjrii 
 non-suit. Plaintiffs' counsel iiaving refused In 
 become non-suit, the learned Judge reseiveil 
 judgment, and sulisc(Hiently gave judgnieiii in 
 favor of defendant, for want of prosecution. 
 Hthl, that tile judgment could not be s\is. 
 
 taincd. 
 
 Vickiry U at. v. I'ricn, 7 R. & <!., 5I.'{; 
 
 SC. L. T,, 01. 
 
 3. Notice of action held sufficient -Non. 
 
 suit properly refused -The Halifax City Chiu 
 
 ter (Acts of 1864, e. 81, s. •J7(j), provides tiiiit 
 
 " No action shall be conunenced against tlu' 
 
 City . . . till twenty days' notice in writing 
 
 shall be given." Plaintiff proved a notice ail- 
 
 dressed to ami served upon the Mayor of the 
 
 City : " That after the expiration of twenty 
 
 days from the service upon yim of this mitiLe, 
 
 an action at law will be commenced in tlie 
 
 j Supreme Court against the City of Halifax, ui 
 
 ! the suit of Mrs. O'B. to recover . . . damages 
 
 j for injuries sustained by her in falling over an 
 
 ' unprotected embankment on Campbell Knaii 
 
 1 owned by the City." 
 
 Hdd, that the notice was sufficient in all 
 respects. 
 
 ,-1^0, that i; Jie absence of any special pro- 
 vision in the C;ity Charter for service of prixtss 
 upon the City, the service upon the Mayor was 
 sufficient. 
 
 AJ^o, that a motion to non-suit plaiiititl'on the 
 authority of Wri<jht v. Tin Midland Huiluwj 
 Co., 51 L. T., N. S., 539, was jiroperly rcfiiseil, 
 ,1^0, that the negligence of defendant haviiiL' 
 been clearly establislied, and tiie iniestinn nf 
 contributory negligence having been left to tht 
 jury, who found in favor of liie plaintilf, thu 
 Judge presiding was obliged to enter jui'gnieiu 
 in accordance with the findings, ami the jnilg" 
 ment so entered shoidd not be disturbed. 
 
 O'liriin V. Till City of llali/'ix, 
 
 7R. &<i.,:W3; 
 7 C. L. T., 4;ia. 
 
 1. No witnesses below called by plain- 
 tiff - Non-sui^. - No appeal— The Court will 
 not allow an apjieal from a judgment of non-suit 
 in Justices' Court when no witnesses have beiD 
 produced by the phiintiff on the trial below. 
 
 McCul/y V. liarnthiil, Cochran, SI. 
 
905 
 
 NON-SUIT. 
 
 966 
 
 .1. Ordered by Court in banco on areu> 
 
 ment of rule to set aside verdict - I'laiiit ill' lifl.l 
 ;i liiU iif Hiile !if 11 jiiiir (if oxen from McL., tlie 
 (iM'iier, who continued in |io8!»e.sMion, the bill of 
 siilo l>eing duly rei'imled iinil upheld as valid l)y 
 the jury. After niakiu),' the Itill of sale, McL. 
 HUM anesteil at the suit of defendant, and, on 
 NWiaiing out of jail, assigned the oxen to the 
 chfi'iidant, who sold them at auction to W. ; 
 nln'ieu|)on the ))laintitr, under ii writ rif replevin 
 ajiaiiist defendant, took the oxen out of the pos- 
 sts.»ion of \V., who was no jmrty to the suit, 
 riaintitf having olitained a verdict, the Court 
 set the verdict aside with costs, non-suited the 
 |ilaliitiff', giving the defendant the costs of action, 
 liiit iiipt of trial, and directed the replevin Ixmd 
 til lie put on tile, subject to the order of tlie 
 Coiiit or a Judge. 
 
 Frrmr v. Ih-wy, S R. & C, (il. 
 
 0. Plaintiff may become non-suit at any 
 
 time iiefore the delivery of the verdict. 
 
 (f'ruitt V. l'ro(u-lion Ini. Co., 
 \ Thorn., (1st Kd.), 10; (2nd Kd.), I'J. 
 
 t. Set aside on account of improper re' 
 
 jection of evidence— I'laintitf lirought an action 
 fill- use and occupation, which was afterwards 
 luiuiiileil liy adding a count for mesne jirotits. 
 Dcfiiiilants pleaded, disimting plaintitl's title 
 iuiil possession, and plaintitl', besides joining 
 issue, replied, setting out the fact of an eject- 
 ment suit against one Davis, the order of a 
 •bulge permitting defendants to appear as land- 
 Ifirds and defend said ejectment suit, the jiro- 
 ceeiliiigs in said suit on the (ith May, '7.">, before 
 McDiiiialil, ,J., when eatnt the said William 
 Jdst and the said Chnrcli Wardens and Vestry, 
 iinil a jury who foimd, *e. On the trial the 
 vnilict of an ejectment suit was tendered and 
 riitivcil without objection. It was signed liy 
 the foiiiuan and ,1'rothonotary, and purported 
 tnlif between Jost, as plaintiff, and Davis, as 
 ilifi'iiilaut, and did not mention the present de- 
 femlaiits at all. A record signed by the attorney 
 iiiul lint authenticated by an otticer of the Court, 
 was then tendered, which recited an ejectment 
 suit lietween Jost and Davis, the order of a 
 •Jmlge allowing the present defendants to appear 
 and ilefend in their own name, tile proceedings 
 on April L'Tth, 73, when " before 8ir W. Young, 
 (• J., and his associate .Fiistices, came the par- 
 tics within mentioned" (being the plaintifl', 
 Ilavis, and the Church Wardens) "and a jury 
 sworn,"' &c. The record was rejected, and the 
 pliiintiff non-suited. ; 
 
 //'/'/, tliac the record should have licen re- 
 ceived. 
 
 Weatherbe, J., <liss, iiliini. 
 
 Joxt V. Chnri-h W'nnli ii.t ami Vmtry of 
 
 SI. (;,Qnii\, ! R. &(;., 4.5!. 
 
 I 
 
 8. Submitted to in deference to the 
 
 Judge's opinion, which was erroneoun — 
 
 Although the .Judge does not direct ti iionsuit, 
 yet, where the iilaintiff, in deference to the 
 •Iiidge's oi)inion, choses to become non-.suit, he is 
 entitled to a new trial, when it appears that the 
 Judge took an erroneous view of the law. 
 
 j Domrllh. V. Mic/.,., 1 R. & (J., l.-,9, fidlowed. 
 
 I Wi-i<jht V. Mornimj Hindd Co., 'J R. & (J., 398 ; 
 
 j 2C. L. T., lotj. 
 
 j 9. Submitted to in deference to Judge's 
 
 opinion which was erroneous — Not voluntary 
 
 [ —Action was biougiit on a bill of exchange 
 I drawn by defendants. The bill with the accep- 
 tance was proved and read without objection, 
 when plaiiitiH' rested, whereupon defendants 
 , moved for non-suit on the ground that there was 
 no evidence of stamping, and because of an alter- 
 1 ation 'uicxplained on the face of the bill. Plain- 
 tiff was then recalled and gave evidence as to 
 double stamping and cancellation. Defendants 
 gave evidence as to alteration in the bill, con- 
 tending that the date had been altered fronrJ/th 
 .\ugiist to 17th August. After the plaintiff' had 
 been cuUeii to rebut, the .Judge proposed to 
 submit to the jury the view that if plaintiff' had 
 received the bill from the acceptors he would be 
 entitled to recover, because it would be impossi- 
 ble for the alteration to have taken jilace after 
 the liill had left defendants' hands and before 
 it reached the plaintitf and liecanie an available 
 bill, but if from the defendants, lie could not re- 
 cover. Plaintiff's counsel then said he would 
 submit to a non-suit, and the Judge gave him a 
 rule to set it aside. 
 
 H'ld, that the view whicli the Judge pro- 
 posed to submit to the jury was incorrect, that 
 plaintitf was not precluded from moving to set 
 the non-suit aside and that the evidence as to 
 alteration of the date and cancellation of the 
 stamps was for the jurj'. 
 
 Domril/e V. Dnri.s ,t al., 1 R. &(!., 159. 
 
 10. Variance between declaration and 
 
 proof— Judge's minutes conclusive -Non-suit 
 cannot be set aside on ground of refusal of 
 amendment— Plaintiff sued on a money bond. 
 There was a variance between the declaration 
 and the proof, the declaration setting out the 
 words of the condition uiion performance of 
 
967 
 
 NON-SUIT. 
 
 (»(],S 
 
 wliiuh the Imml was to liocoine void iiiHtuail of I 
 the r)liligivt(>iy |)iiit of tliu lioiitl, iiiiil tlif jiliiin- 
 till' WHS iioii-Huilfil with u rule to sut asiili- tiie , 
 non-suit. On tiiu first ihiy of turni phkintitl' oli- 
 tainud a ruhi iilii for ivn iiini'iiclnient of tlie «U'- 
 chviatiiin, ami tiiat a nuw trial lie grantfd.liucause 
 the Jmlyo r)n the trial had improperly refuseil to 
 grant the amendment. At the argument plain- 
 tiff moved to di.si liarge this rule with leave to 
 move for another similar to it, hut adding the 
 words "on reading the minutes." The attiilavit 
 of plaintill's eotinsel stated that the Judge had 
 refused leave to insert, as one of the grounds in 
 the rule, that the amendment had lieen lefused. 
 This was eontradieted. | 
 
 //lid, that the iide «/</ must he iliseharged, ' 
 us tlie Judge's minutes weTe conelusive as to 
 what took place at the trial, and the i»lainlitl' 
 had his remeily under the .Statute for the alleged 
 refusal to grant a rule; that the jjlaintiff' was 
 j>roperly non-s>iited on account of the variance, 
 and that the non-suit could not be set aside for 
 the alleged refusal of the Judge to grant the 
 amendment, even assuming jjlaintill's account of 
 the matter to lie correct. 
 
 Halifax /iaiihiiiij Company v. Worrall il at., 
 
 4 K. &.«;., 482. 
 
 11. Verdict Tor plaintiflT Disapproved by 
 
 Judge— Set aside- No non-suit, exeept by 
 consent -In ca.se of verdict for plaintiff" the 
 Court will grant a rule ni'ii for new trial, if tlie 
 Judge who tried the cause considers that a rule 
 ougiit to j)ass, liut not a rule nisi for a non-suit, 
 except by consent. 
 
 Copp V. Etter, James, 304. 
 
 V2. Verdict for plaintilf set aside wliere 
 
 point reserved was whether plaintiff" should 
 have become non-suit— Plaintiff", a passenger 
 from Halifax to I'ortland by one of defendant 
 ('o.'s steamers, sued for the value of her trunk, 
 which she alleged had lieen placed in the hands 
 of the t.'ompany's .servants and a check given 
 her therefor. Defenilants denied receipt of the 
 trunk, and gave evidence that plaintiff had 
 received the check, not from them, but from the 
 cabman wiio had driven her to the wharf. At the 
 trial tiie learned Judge was inclined to grant a 
 motion for a non-suit, but consented to hear de- 
 fendants' evidence, and take a verdict subject to 
 the opinion of the Court, whereupon a verdict 
 was rendered, by consent, for plaintiff for the 
 full amount claimed. The question was purely 
 one of facts, the oidy point of law involved lie- 
 ing as to whether the plaintiff" ought not to iuive 
 been non-suited. 
 
 J/eld, that there should be a new trial, as the 
 
 case was one for a jury only, ami not for tiie 
 Court to decide. 
 
 Stiiiii'ioii V. Tin Xi II' Kiiijlaiiit <(• X. S. 
 
 Shamxliii' Co., .H N. S. I)., IhJ, 
 
 13. Voluntar) Cannot beset aside- Tlie 
 
 iludge having refu.sed a non-suit ]ilaintill' emi- 
 
 sented to become non-suit on condition that tiiu 
 
 Judge woidd gran; leave to set it aside, to 
 
 which the Judge agreed, reserving the (|uestioii 
 
 whether he had legal power to do so. 
 
 //i/(l, that the |)laintitt", having consenteil to 
 
 the non-suit, could not afterwards move t'l sul 
 
 it aside. 
 
 SmlHi V. McDoiialil, 1 U. & C, iM.-i. 
 
 U. Voiiintary -Excusabie-Set aside - A 
 
 witness for jilaintitt's was alhiwed to leave the 
 
 Court on the understanding that he would iiii- 
 
 nu'diately return if sent for. The cause lieiii;,' 
 
 called, the witness was sent for and jirocceiltMl 
 
 toward the Court, but returned home on lieiiig 
 
 informed by some of the jurymen in the jjreviims 
 
 case that tlie Court had adjourned for tlie day. 
 
 The witness not apiiearing, i)laintilfs apjilieil tn 
 
 have his evidence taken at a future day. Tills 
 
 lieiiig refused and tlie evidence being mateiial, 
 
 they became non-suit. Under the circumstiUKes, 
 
 anil it appearing that the plaintiff did all tliat 
 
 was necessary to olilain the attendance of tlie 
 
 witness, a new trial was granted on jKiyinuut uf 
 
 costs. 
 
 dnni (I al. v. //fin , .'{ N. S. 1)., ."i.'i. 
 
 15. Voliintarj-New trial-On tiie trial ot 
 
 an action tiie ])laintiff' was non-suited, and mi 
 the argument of a rule to set such non-suit usiile, 
 and for a new trial, it was contended that the 
 non-suit was voluntary. The minutes of the 
 Judge wlio tried the cause merely stated that a 
 non-suit was moved for, that the plaintiff's 
 counsel replied, and that judgment of non-suit 
 was entered, and the Judge himself said that he 
 believed the understanding to be that a rule was 
 to be granted, 'i'lie .Supreme Court of Nuva 
 Scotia held the judgment of non-suit to he vol- 
 untary, and discharged the rule. 
 
 Xot nporkd beloir. 
 
 On appeal to /he Svpreme Court of Cnnwhi. 
 
 Held, that as there was a doubt as to wiiat 
 took place at the trial, the parties were entitleil 
 to the benefit of that doubt, and the rule to set 
 aside the non-suit must be made absolute. 
 Levy v. Halifax and Cape Breton IV y A- Coai Co., 
 2Mh February, ISStJ, Cas. Digest, 310. 
 
 16. Voluntary non-sult cannot be disturbed 
 
 —On a motion for non-suit the learned Judge 
 
909 
 
 NOVA SCOTIA. 
 
 970 
 
 txpressed tho opinion tliiit the plaintiff's rvi- 
 iltiK'f WI18 I'xtrcmc'ly weak, Imt <li<l not suggest 
 tliat there was nothing for the jury. The phiin- 
 titr'H counsel having thereujton ofTered to become 
 iKJii-Huit if with leave to set it aside, whiuh leave 
 was given, 
 
 fitid, that the non-suit was voluntary, and 
 C(Jii!il not lie tlisturlieil. 
 
 0(tkin V. KkiIhhi it nl., 4 R. k CJ., 554. 
 
 17. Voluntary noii'Suit entered by consent 
 
 of solicitor set aside — I'laintiff "s solicitor en- 
 ttifd his cause for trial in the County Court, 
 ami jilaintitr was notified of the fact ami re- 
 (|Ui'8ted to attcntl, hut was unable to do so, or 
 t(i notify his solicitor, on account of illness. 
 
 .\ judgment of non-suit having been entered 
 iij;.iinst the plaintiff under these circumstanccH, 
 with the consent of the Holieitor, 
 
 /AW, that the judgment was irregular and 
 nnist lie set aside. 
 
 i'laintiff was allowed a new trial ou payment 
 (if ilie costs of the day, other costs to abide tiie 
 
 evi'iit. 
 
 Walhi- V. Stiwart, 7 R. & «!., 182 ; 
 7 C. L. T., •J47. 
 
 t^. Voluntury non-suit submitted to on 
 
 account of wrong ruling of Judge — The 
 
 [ilaiiLtitf company in order to prove a certain 
 niiticc, called their secretary, who testified to 
 till' liiss of the original, and to a sufficient search 
 having been made for it. On cross-examination 
 lie stated that he did not know from whom he 
 hail received the original, nor in whose hand- 
 writing it was. The paper was tendered, ob- 
 jected to and rejected, and the Judge also 
 lefused to permit the plaintiff then to introduce 
 further evidence to prove it. The plaintiff com- 
 |);uiy also offered answers to interrogatories by 
 iiiio iif the defendants, which were on tile ; and 
 the answer of another of the defendants, which 
 hail nut been filed, but which was admitted. 
 These were rejected. The plaintiff company 
 theicupou became non-suit. 
 
 Htlil, Wilkins, J., ilixneutiiiij, that the discre- 
 tiiin (if the Judge, as to the further examination 
 iif the witness had not been properly exercised, 
 that the answers of the two defendants should 
 have been received, and that the non-suit should 
 lie set aside. 
 
 Wind-ior Marine Ins. Co. v. Ladd, 
 
 •2N. S. 1).,493. 
 
 NOTICE OF ABANDONMENT- 
 Stt INSl'RANCE, MARINE. 
 
 NOTICE OF DISHONOR- 
 
 S,f. BILLS OF EUHANfiE AND PROMIS- 
 SORY NOTES. 
 
 NOTICE OF TRIAL- 
 Stc TRIAL. 
 
 NOTICE TO QIJIT- 
 Stt LANDLORD AND TENANT. 
 
 N0TE8- 
 
 PromiKsory - 
 
 "^ e BILLS OF EXCHANGE AND PROMIS- 
 SORY NOTES. 
 
 NOVA SCOTIA. 
 1. Cape Breton, annexation of to Nova 
 
 Scotia— By the treaty of Paris, of the l(»th 
 
 ' February, 17(5.1, the Island of Cape Hrcton (which 
 had been invaded and taken by the British forces) 
 
 , was ceded by France to the King and Crown of 
 Creat liritain. By a proclamation, issued by the 
 
 i King in Octoljer, 17(>.'l, the Islands of Cape 
 Breton and St. John's were annexed to the gov- 
 ernment of Nova Scotia, and the proclamation 
 
 ; autliori/.ed the (Jovernor to call (Jeneral Assem- 
 blies, in the said governments respectively, as 
 soon as the circumstances of the colonies would 
 
 I admit. In the year 1784, the Crown, by a 
 commission to the (!overnor-in-Chief of Nova 
 Scotia, and the Islands of St. John's and Cape 
 Breton, granted a constitution to the Island of 
 Cape Breton, to consist of a Lieutenant-tiovernor, 
 Council and Assembly, distinct from that of 
 Nova Scotia. The government of the Island 
 continued, however, to be regulated by a Lieii- 
 tenant-dovernor and Council, but no Ceneral 
 Assembly was convened, as directed by the 
 commission of 1784. In the year 1820, the 
 Crown, in the commission to the (Jovernor-in 
 Chief of Novft Scotia, annexed Cape Breton to 
 Nova Scotia. The inhabitants of Cape Breton 
 petitioned the Crown, complaining of the ille- 
 gality of the re-annexation by the Act of the 
 Crown alone, without their consent, or by an 
 Act of the Imperial Parliament, as contrary to 
 the proclfimation of 1763 and the commission of 
 1784. 
 
 Held by the Judicial Committee of the Privy 
 Council, that such re-annexation was legal, and 
 
D71 
 
 ORDERS IN COUNCIL. 
 
 072 
 
 tliat tlic petitionee wore not entitled to a Hepar- 
 nto uoMHtitution timler tlic coinniiHHion of l7St. 
 C'ajie Union, In rr The li/niiil of, 
 
 n Moore, P. C.s.m 
 2. Legislative Assembly of - Power to 
 
 puniHli for contempt — 
 
 Set ASSEMBLY, ilOlSE OF. 
 
 JfOVATIOJf. 
 
 3. or tOth or November, 1S06 - Trade to 
 
 St, Domingo witii lit'cnNt;. 
 
 Thf C'/ydr, Stewart, Kki, 
 
 4. or 24th or June, 1803-€olonla! trade, 
 
 outward cargo contraliand. 
 
 Th> UniftdStaiM, Stewart, IKi. 
 
 5. or Ijith or Jul}, 1807-A qualllled 
 
 license to traile to St. Domingo; and I4tli De- 
 
 cenilter, IHOS, trade to St. Domingo laiil (ipcii. 
 
 Thi' JUarer, Stewait, I7;t. 
 
 Plea sufflrlenil} setting; rorth a novation - 
 
 A pica, netting fortii an agrfi-meiit lietwuen 
 
 jilaintift' and defendants, that plaintitt" siiould ''' ' '^'*I: 
 
 aucept third parties as paymasters for tiie ' ' " '"' ' 
 
 amount of his ilaini against defendant.^, that 
 
 said tliird parties agreed to i>ay tlie same to 
 
 ])laintitr, and tiuit plaiiitilF acceptetl tiie said 
 
 tiiird parties and released defendants, is good. 
 
 Covjis V. irirrtfn/., 1 Old., 1 •_'.'<. 
 
 6. or 26th or April, not revoked In con* 
 
 .seipienoe of the Duke du {'adore 's letter of .\iig. 
 
 a)!.* I'aiht, Stewart, '.'(io. 
 See DECREES OF BERLIN AND MILAN. 
 
 7. Of 2nd of October, 1807 -Blockade of 
 
 tiie Kyder discontinued, ];{th July, 18)Mt. 
 
 S,r, ai.o, BILLS OF EXfHANfiE AND PROM- 
 ISSORY NOTES, III. 1 & -Ml. IS. 
 
 NIISANCE- 
 
 8. Ot 3lHt or May, 180ft-Trade to Heligo- 
 land. 
 
 Stewart, Index, xuh Orders in t'ouiuil. 
 
 9. or nth November, 1807 - Trade In 
 
 enemy's produce, revoked, '-'(ith April, iSdIi. 
 
 Till Tho7iias ]\'i/soii, Stewart, •-'(ifl. 
 
 1. Municipal liability ror nuisance in the ^^ ^^ „„, jf„,ember, 1807-Certmcates 
 
 nignwav — 
 
 See HALIFAX, CITY OF. 
 2. Rule nisi for precept to sherlflT com* 
 
 mandiug him to abate a nuisance. 
 
 (^u-.eu V. Htmlry, James, 105. , tweeu enemy's ports, 
 
 of Origin, revokeil hy "JOtli April, ISO!). 
 
 The American, Stewart, '1%. 
 
 11. or 7th January, 1807-Tradlng be- 
 
 OFFICERS OF THE CROWN- 
 Action agalnst- 
 
 See. EJECTMENT, 19. 
 
 The Express, Stewart, 'J!*'.'. 
 
 12. or 31st July, 1810 -To detain Anierl- 
 
 can vessels — Vessels and cargoes detained iimlei 
 this Order in Council could not he sold or Iniiled 
 previous to adjudication unless perisliable. 
 Pelition of Sir John Warn it el aJ.. 
 
 Stewart, .'t'JT. 
 
 ORDERS IN COl'NCIL. 
 
 13. or 26th April, 1800-Suspended b) 
 
 Order 23rd June, 1812, conditionally. The 
 
 condition not having lieeii ci)mplie<l witli, tiie 
 
 1. Allegations contained in an Order in [ first Order held in full force again. 
 
 Council may he questioned in a suit, without 
 making the Crown or Oovernment a party to 
 the suit. 
 
 W. d- A. H'y Co. V. W. C. li'y Co., 
 
 3 R. & C, 376. 
 
 2. Order in Council or 23rd or Septem- 
 ber, 1803 — Trade with the free jiorts to continue, 
 notwithstanding hostilities with Spain. 
 
 Niientra Senora Del Carmen, Stewart, 83. 
 
 The Georfie, Stewart, 38!t. 
 
 14. or 8th April, 1812 - Permission to 
 
 import and export, from Halifax to United 
 States, meat, etc. 
 
 Stewart, Index, tmh Orders in Council. 
 
 15. or 13th October, 1812-DittO, not- 
 withstanding hostilities with the United States. 
 
 7'he Economy, Stewart, 446. 
 
973 
 
 PARTICULARS. 
 
 974 
 
 lA. or 26th October, 1812-Connrmlns OVERHOLDING. 
 
 Ailiniml S(iwyer'n licenHost. 
 
 7Vi« Jiiirani, Stewart, 470. 1. OveHioIdinx process — Service of the 
 
 affidavit with the notice— Waiver of irrej;- 
 
 II. Of '26th April, 1809-For prohibiting ularity— Ti-.c aHiiliuit on wiiicli tlit; application 
 
 commerce with France — Tho priiiuiplv of it was intcndud to ho made was served sepivrateiy 
 
 ciiiisiikTud and jiistitied. | from the notice, altiiougii Imth were served 
 
 Nut a l)loci<ade, properly speaking, hut a do- ' in due time. The .Statute Imd the words, "witli 
 
 f.Mi.iive measure of another kind. the notice." 
 
 Th' Orion, .Stewart, 497. Hi'/d, hy McDonald, C. J., and Thompson, .!., 
 
 that tiie service need not he concurrent, m 
 
 18. or 2l8t April, 181'2 On Berlin and "with' meant "als.). 
 
 Mil, III Decrees. JI>hl, )>y Weatherhe, Righy and Thompson, 
 
 iStewart, Appendix, III. .IJ., that the irregularity, if any, was waived hy 
 
 I tiic defendant reading an affidavit in answer to 
 
 10. or 23rd .lune, 1812 -Suspending Or- t''" ""« «° »«''^cd. 
 
 (Uis, Tth .lanuaiy, IS(>7, and '-'(ith April, I SIM). '*""""' "•• ■*''""'"'. ''» R- * ''•. -»-■ 
 
 Stewart, Appendix, V. 
 
 2. Motion on aflldaTit on behair of de- 
 fendant to discharge his recognizance entered 
 into hefore two .Justices for overholding the 
 Sfuvart, Appendix, VII. |daintift"s premises, the plaintiff not having 
 
 entered the cause on the summary list for trial, 
 »« ^nAt n J. t. jc^a ry I wi "or comuiencod an action of ejectment. 
 
 21. or 13th October, 1812 General Re* ., ., i n < n,. 
 
 .,,,,. V, Sir '2nd R. S., c. 140. 
 
 (iiisiils against tlio United States. 
 
 20. or loth August, 1812 -To detain Ante 
 
 liLiiii vessels. 
 
 Stewart, Appendix, VIII. 
 
 22. Order respecting return cargoes or 
 
 licensed veaaels— 
 
 Stewart, Appendix, IX. 
 
 23. or 26th October-Admiral Sawyer's 
 
 licenses— 
 
 .Stewart, Appendix, X. 
 
 21. or 8th April, 1812 -Trade ofXova 
 
 Scotia, &c., with the United States— 
 
 .Stewart, Appendix, XI. 
 
 25. or 13th October, 1812 -To continue, 
 
 notwithstanding hostilities — 
 
 Stewart, Appendix, XII. 
 
 26. or 13th February, 1813-Order relat- 
 ing to the sale of American ships— 
 
 Stewart, Appendix, XIV. 
 
 21. Privy Council-Order or Her Majesty 
 
 in Council allowing an appeal from the judg- 
 ment of the Supreme Court of Nova Scotia to 
 herself in Her Privy Council— 
 
 See APPEAL, IX., 1. 
 
 28. Proclamations or Governor in Council 
 
 bringing Canada Temperance Act into force— 
 
 See CANADA TEMPERANCE ACT. 
 
 Rule granted without costs. 
 
 littiier v. Gnnn, James, XM. 
 
 OVERSEER- 
 See POOR LAW. 
 
 OVERVALUATIOy- 
 See INSURANCE. 
 
 PARLIAMENT OF CANADA- 
 Jurisdiction or- 
 
 Ste BRITISH NORTH AMERICA ACT. 
 
 PAROL EVIDENCE 
 
 See evid'=:nce. 
 
 PARTICUIARS- 
 See PLEADING. 
 
975 
 
 PARTITION. 
 
 976 
 
 PANEl- 
 Sie JUBT. 
 
 PARENT AND CHILD 
 St, INFAJiT. 
 
 PARTIE8- 
 1 . Adding or striking out- 
 
 2. Xon-Jolnder How objected to— 
 
 Set PLEADING. 
 
 i. Partition Suit for ArquloHrenre — 
 
 Adverse poBseiiiion — •laincH Aylward liy IiIh 
 will (liriH'teil iiH followH ; " I .ucoininuiiil In my 
 wife, wliiiiii I onluin my executrix, niitl .1. it, 
 fttnl A. P., exCMitord, thivt at tlio lUNoretimi nf 
 my wi(lr)W wlifii hIic nmy tUu'iii pniiuT, tlicy, 
 with licr, may iliH|><mtt (if my real (mtate, in 
 which of my hoiim may iiicliim to j,'ivu thu ln'Kt 
 price ami to aHHiHt her in making an e(|ual ilivi- 
 Hion thereof aiii(in>{ my tivenonH." 'riuu-xecutniH 
 reMdiinceilanil tlie wiilow conveyed the propcily, 
 Deeemlter Ist, IH")((, to John Aylward, wlm 
 conveyed it to one Duncan, Deeendier '.Mill, 
 IS.V), Moth the deeds were recorded .luiuiiiiy 
 ntli, IH.VJ. The iieir« of Ihnican conveyil it ill 
 iNdS to Merritt and Uligli liy deed recorded in 
 iSflO. In October, IHTI, Kdward Ayhviinl 
 •SVf AMENDMENT, 'commenced proceedingH for a partition, cliiiiiiiiig 
 that the widow iiad conveyed the land hci rctly 
 to John Aylward, ami in his evidence >tati'i| 
 that he liad never lieen anked hy the widow or tiio 
 executors to offer for the land, and wan not ii« iiru 
 of the deed to .lojni Aylward until aliout a year 
 after its date ; hut it did not a|)pear tliat liivhiul 
 ever olijeeted to the title of John Avlwiinl 
 under the deed, or called in i|ue«tion tlie title nf 
 Duncan or thosie deriving title from his IicIph; 
 and he ilid not assert thai heorany of hislirotliiTK 
 was willing to give more than ■lohn had given, 
 or that the laml was worth more. 
 ^-. ui*» i».4#_ n Hf/(L that in view of the lapse of time and 
 
 1. Lands subject to right of way — Par- ^, , . ., ',. . 
 
 ^.,. „ ,,, . '.„. , T , , f 1 . the adverse possession. It was too late to at tempt 
 
 tition of — I'laintifl and the two defendants _ ,<.,., _.., r ,, •_ , i„. , ., 
 
 purchased a Held, divided the front portion int( 
 
 3. Practice as to— 
 
 Sec PRACTICE. 
 
 PARTITION. 
 
 to defeat the title of Merritt and Hligh mi tlie 
 
 lots according to a certain plan, laying off two 
 lots as proposed streets, connecting an existing 
 street with the undivided roar jKirtion of the 
 land and furnishing the oidy access to that rear 
 portion from any existing street. 
 
 The defendant 1*. jjurchased the undivided 
 rear portion and two of the front lots, one on 
 each side of one of the proposed streets, 
 the said lots being described in the deed as gages no bar to— The j)laintifr bronglii 
 
 verbal evidence of petitioner that an option hail 
 not been given. 
 
 Quaere, whether title can be tried in pmci'i'il. 
 ings for partition. Sen LtCai'ii v. llonli rinnii 
 
 »r «/.,'_» X. s. D.,4i:i. 
 
 Aylivnrd v. Ayhrnrd el a/., '2 R. fi (i., •.'4.S; 
 
 I ('. L. T., 7(iti. 
 
 3. Partition suit — OutstandlnK mort- 
 
 ■iiiil 
 
 liounded on the north and south respectively by 
 the street in questioi.. 
 
 for a i>artition of certain lands under the fuilciw- 
 ing, among other cireumstances : the dcfcml- 
 
 ffelti, that the plaintiff was estopped as a ] ant and his brother were devisees under their 
 
 grantor in the deed to defendant P. from deny- father's will of a large tract of land wliich they 
 
 ing that a right of way was granted over the held as tenants in common. They executed twn 
 
 land designated in the deed and on the plan nuirtgages thereon which were outstanding at 
 
 under which the sales were nuult as pioposed the time of action brought, 
 
 streets. A judgment was subsefjuently obtained against 
 
 Held, also, that although the land designated the brother and an execution issued under wliicli 
 
 on the plan as proposed streets was subject to his undivided half was offered for sale and jnii- 
 
 a right of way to the rear and to any portion of chased by plaintiff, who received a deed frum 
 
 the adjoining lots yet that as the title to it the Sheriff. 
 
 remained in the plaintiff and defendants, it was After the execution of the deed it was discov- 
 
 subject to partition under chapter 102 of 4th ered that the description therein, as well as in 
 
 Revised Statutes. 
 
 Pwjh V. Petern el al, 2 R. & C, 139. 
 
 the advertisements of the sale, was erroneous. 
 The plaintiff seeking partition, the defendant 
 
977 
 
 PARTNERSHIP. 
 
 978 
 
 rt'NiNtcil and pUmkIimI (I) that thu lirothvr wait 
 Kiill ill iMiHMfHMidii uilvcrNcly to thu plaintiir, and 
 tli.it tlit> lattLT ciiiild not maintain an action for 
 |iiii'titinn, not )iaving thu poMHOHMion, and ('2) 
 tiiiit plaintiff oii^lit not to luivc |Mirtition, inaii- 
 iiiiii'li UH hiH application, if ^'I'antud, woid<l )k> 
 iiiily nugatory and inoperative, and Hiilijeut ilu- 
 
 tt'llillint to COHtM, 
 
 If I Id, tlint the Shuritf'H deed gave mitficiunt 
 Ht'ii-iii for a procui.'din^ of partition ; tliat on thu 
 tii.il the titlu of the juilginuiit duhtor nii^'lit lie 
 iiivrHti(,'atud ; that thu urrorH in thu duMcription 
 iiiiilil Ik! corructcd l>y refuri'Mcu to tliu other |)or- 
 tjoiiiiif thu duNcription, and that tlii! oiitNtanding 
 iiii>it.{a>,'('H wuru MO liar to thu partition Noii^'ht. 
 
 Till' Siipruniu Court of Nova Scotia ikwmchhuh 
 .ill the powers with referuncu to Huits in parti- 
 timi with which the K<|Uity Court in Kn^dand 
 is iiivuKtud. 
 
 LiCaln V. //oifirintni, '2 X, S. I)., 4!.'<. 
 
 4. Kcturn orComniiNslonrrN Application 
 
 to net aside — I'laiut ill' xriught to sut asidu thu 
 it'tiirn iiiadu in an action of partition hy thu 
 CiuiiiiiiNNionurti didy a|)point('d, on thu ^Tound 
 tli:tt tlicy had iin]iro|iurly allottud to onu of thu 
 |i.irtiti<inurs a lot of land liulow its valiiu and 
 liiliiw thu pricu plaintiff had notified thuni hu 
 wdiilil pay for it. Thu uviduiicu in support of 
 till' plitiiitiff'H claim conMiHtud Kiniply in tiiu fact 
 (liitt liiiving liy Home niuauH olitained a knowledge 
 .if the decision of thu CoiiiiniHKionurtt liufore they 
 Myiied their return, he had offered them S'2(MNI 
 mine for the lot in ({uestion than the value tiiey 
 hiiil ))liued upon it. 
 Hftil, no ground for disturhing thu return. 
 Li Cain V. /loslirmnn tt al., W N. S. ])., 17H. 
 
 .1. Writ or Partition — The common law 
 
 'viit of ]i:irtition extends to joint tenants and 
 tiiiaiits in common, and the expression ",.• the 
 iiniiiiiiiti law" in cap. l.SO, sec. 1, Rev, .Statutes, 
 rtluis to the existing state of the law in this 
 I'loviiice hefore the passing of the Rev. Stats. 
 
 Doam: v. MnKaiiiy, James, 328. \ 
 
 PARTNERSHIP. 
 
 1. Account, claim for, on dissolution- 
 Costs— Where plaintiff prayed for an accoinit on 
 the (ILssohition of co-partnership between him- 
 self anil defendant, alleging that a balance wat 
 line him, hut the Master's report, showing a 
 liirge kdance to lie due to defendant, was sus- 
 tained, except as to a comparatively small item. 
 
 Hi Id, that the defendant was not entitled to 
 a decree with costs, as the plaintiff had succeeded 
 
 in uMtabliNhing hiH right to one half intcruHt in a 
 mill, which was dis|mted. 
 
 iioda V. LiHIaiir, R. K. D., "f*. 
 
 '2. Acknowledxmrntt by one partner after 
 
 disMolution, to bar Statute 'I'hu acknowledg- 
 ment, in reference to a debt diu- by the firm, of 
 one ])artMer, after thu partiu^rship has been 
 disMidved, is sutlicient to prevent the ()i>c!'atioii 
 of the Statute of Limitations. 
 
 Haul: of X. S. v. Ifiilihiirfnii, 
 
 James, 850. 
 
 3. Action for half IntercNt In horse — 
 
 Right to offset expenses paid on account of 
 horse— To a declaration by pluintilf for the 
 price of one half interest in a horse alleged ti> 
 have lu'ensold by ]daintitf to dcfendai't, plaintiff 
 retaining the other half interest, defendant 
 j)Ieaded among other |>leas a set-off for tht^ keep 
 and cure of thu horse and expenses coiniected 
 with taking the horse to ami from Truro while 
 the joint ownership lasted. Thu Judge of tlu> 
 County Court ruled that defendant could not off- 
 set his account, as that would be offsetting a 
 partnershij) matter de)M'nding u|H)n an adjiist- 
 nieut of accounts between thupartius, plaintiff's 
 claim being for jiro|)erty brought into thu [Kirt- 
 nurshij). 
 
 //'/(/, that the rejection of the set-off wa» 
 wrong, and that the jnd/,'nient below must be 
 
 reversed. 
 
 Ml Donald v Pomr, .S R. & C., :U(>. 
 
 4. Agreement of partnership — Right to 
 
 terminate— IMaintiff and dufundant untered into 
 a co-partnershii> for five years under a written 
 agreement, containing a provision that " it shall 
 be lawful for the said K. H. (the defendant) to 
 terminate the same at the end of the first year 
 witlumt any notice, if the business shall ii.t 
 prove satisfactory to him." 
 
 Defendant termiiuited thu co-partnership at 
 the end of the year on the ground of the business 
 not having proveil satisfactory to him, where- 
 uixui plaintiff brought his action for non-fultil- 
 ment of the agreement, alleging that the busines-s 
 was satisfactory. The jury found for plaintiff, 
 with large damages, and found, in answer to a 
 <|uestion put, that the defendant when he ter- 
 minated the co-partnership was not dissatisfied 
 with the business. 
 
 Held, that the agreement gave an uncontrolled 
 discretion to defendant, and that the verdict 
 must V>e set aside. 
 
 Wilkins, J., disKentimj. 
 
 Whitehead v. Howard, 2 R. & C, 4:J2. 
 
•079 
 
 PARTNERSHIP. 
 
 f)sO 
 
 i. Drbt due by partner of InHOlvcnt flrni 
 
 to co-partner can tie proved at{ainitt Nuparate 
 eNtate when joint debtfi paid I'mlcr llic liimil. 
 vi'iit Act (if I.SH,'\, Hci'. MO, UK under tliu cfirri'n- 
 pniiilin^ pr<>\ JMKiiiH (if ilic Kiiuii^li Act, ii dclit 
 due liy line part ncc ill a tirni to iiix en |i:irliiciM 
 cm pmpci'ly In' pnivcil iij^uinxl I lie i»e|>iinkte 
 i'Niiitc (if the dclitnr UH Hiiiiii a-* tlie .j<iint delilM 
 of tlic purtnci'ithip iiiivc lieeii di.icliai^'cil. 
 
 MarknifoMh v. Alinnii ,t nl, tl K. A <i., 41ts. 
 
 6. Debt due by onr partner rannot be 
 
 ■et off' againHt debt due the firm A He|iaratc 
 delit due iiy mic incinlicr nf a liini in Imm iiiiliviil- 
 ilal capacity cuiiiKit lie Hct ntl'. either at hiw, nr 
 in eijiiity, a);aiiiNt a joint deht due tn t!,e tinii, 
 iiiiU'sn liy ajjrecincnt witli all the ineiiilieiH 
 thereof. 
 
 i.oyiihj V. nidiriifi, I Old,, »;»•.». 
 1, ExrIiiNlon of partner Artlon for 
 
 Measure of damages — Where three partner!* 
 filter into a cmitract tn perfdini a certain work, 
 iiH pai'tiierH, and two of ihein, after the work liaH 
 lieeii ooiiiuii'licvd, exclude the third from all par- 
 ticipatiiin in it, the partm^r hh excluded may 
 8UHtain an action agaiiml thtun for such exclu- 
 iiion, >\ hilu the W(irk is still in progress. 
 
 'I'he measure nf damages in such case will he 
 the protits that might reasonahly lie expected to 
 result frnm the undertaking. 
 
 (Irani v. Crt^lmnii it at,, '2 Tlioin., 37. 
 
 8. FlHhln;; partnership -Construrtion of 
 
 — I'laintiff and defendant entered into a contract 
 to tisli, each in a distinct lierth, and (uich party 
 tinding his own seine, lioat, and fishing gear. 
 The evidence was conflicting as to the contem- 
 plated duration of the agreement, liut the Court 
 arrived at the conclusion that it was confined to 
 the taking of a school of fish in each berth. 
 Evidence was given as to the meaning of the 
 term .school, as used in such contracts, but it was 
 vague and contradictory and such as to oblige 
 the t'ourt to construe the agreement independ- 
 ently of any alleged usage. Defendant caught 
 fourteen barrels of mackerel in his liertli of which 
 he gave defendant seven, and plaiutitF, shortly 
 fifter, caught ten barrels in his berth of which he 
 gave defendant five. Plaintiff then abandoned 
 his berth and went elsewhere to fish, and never 
 returned to it. Defendant, in his Iterth, caught 
 two hundred and fifty barrels, of which plaintiff 
 claimed half. 
 
 Hi'ld, that the plaintiff was not entitled to 
 participate in the defendant's catch of fish. 
 
 Fawaon v. Xoonaii, R. K. D., 377. 
 
 0. Mlnlnit partnenthip Plaintiff and 
 
 (lefelidalitH entered into a CO iNtrtel'ship to Wnlk 
 certain mining areas, a lease being taken nut in 
 the name nf the defenilants, but for the U'lutii 
 (if idl the parties. I'laintilV's share nf tlu^ I'x- 
 pelises (if Wdrking the mine, as they bocaiiu- 
 due from month to month, wum paid by the di'- 
 feiidant, lienrge tfainiltnli, and, only a sinilj 
 pnrtinn being refunded, the latter wrote tn pliun' 
 tiff, (hat if his indebteilness was not |iaii| li\ ^ 
 day naiiieil, he Wdidd consider that he inteiiili'4 
 to withdraw from the adventure, Keo.'iviiig ii>i 
 reply, htMifterwards wrote to plaintiff, eiicliHMi^' 
 the aiimunt received frnin him on account of hii 
 contributions, to which plaintiff replied, accept- 
 ting the money, and concluding, "now thai I 
 am no participator with you in tli(! tribute, Ivt 
 your mind rest (|uiet, and let the past ri-i/iiiisin/ 
 in /nifi." The mine having subseiiuently tiirncil 
 nut well, plaintiff, claiming to be a partiiei', 
 lirniight ai^tiiin for an account, I've, wliicli w;is 
 dismissed with costs. 
 
 Distinction between mining and ordinary ti id- 
 iiig partnership as to iIi-Ih-Ihi /k rioiia-. 
 
 Hamillim v. Ilami/loii if a/., H. K. I),, 7S. 
 
 10. MiMapproprlatlon by Arm - Award 
 
 against one partner for whole amount, both 
 having shared in misappropriation— Dcfeiul- 
 
 ant, a liarrister, being in partnership with .1. (!, 
 T., the tirni, as snlicitnrs fnr Mrs. McS,, cnllci't- 
 ed certain large sums of money, whicli, insti iil 
 of paying over toiler, they a])propriated to tlu'ir 
 own use. I'laintiff having brought action fur 
 the amount the matter was referred to arliifni- 
 tinii, and an award made in her favor wliicli 
 defendant now sought to set aside mainly on 
 the grounii that the award was unjust and in- 
 correct, Ix.nause defendant was held lialilc fur 
 the total amount received by the firm insteail (if 
 as he contended only foi' the amount he had in- 
 dividually misappropriated. 'I'here were ntlii-'r 
 olijcctions taken by defendant to the award nf i 
 t(?chnical character. One of these was that the 
 other defendant hart not signed the reference. 
 He had, however, attended the reference. The 
 other objections were successfully met by 'itti- 
 davits, 
 
 //itlil, that the award should be sustained. 
 
 McSireenty v. Wallare H al., 2 N. .S. D., s;). 
 
 11. Note made by member of firm and 
 
 indorsement forged by him— Proceeds aijpro- 
 priated to partnership purposes — Right ot 
 holder to rank on estate of firm insolvent- 
 (traham, the active meml)er of the insolvent tirni, 
 made a number of promissory notes in the tiini 
 name in favor of one Thomas Fraser, by whom 
 
!».Hl 
 
 PARTNERSHIP. 
 
 982 
 
 il'i' iiutfH |)ur|Hirti'<l to Ik) iiiilnrNril, liiit the in- | 
 ildi -xriK'UlM Mci't' all of tli*'tii fiir^i'il. Tim iintL'it 
 VM'ii' |ii'('Hi'iitfil til till) I'likiiiiiiiitM, uml iic'gotiati.'il . 
 Iiy <Miiliiitii who riiovivvil tlif iiiDiioy on tliuni, 
 uml ii liiiXf purt of till' proc'i'i'iU uiin u|i|ii'ri]iriati-il 
 I.I |i.irtii('i'Nlii|) |)iii'|>iMi'M. 
 
 Il'lil, that, iiltlioiiKh thf Hank toiihl not 
 < l.uni on thf notfit, it I'oiilil tank for thu uiuount 
 I if tiiuin aN nionoy paiil. 
 
 Ill ilii Mnllirof llraham nml AffKni/, Iinoln ul-<, ' 
 
 ;< K. k ('., 'J.'.!. 
 
 \i, Purlnrr npitroprlalinx lo iihc of part> 
 
 nerrihip truHt funds, and crediting riHini i/in 
 /(•H«' -Liability of co-partner i'lainlltr, the 
 
 uiijiiw of CliiiM. S. .silver, wuN eiititleil to certain 
 |ii'ii|ii.'rty plaeeil in tniHt, among other thhif^N, for | 
 till' |iaynient of reiitH, etc., free from the control 
 i.f iiii huslianil, and not iiutijecl to hix delitn. .She ' 
 (lireL'ted her truHtuoH to pay over to her huHlHind 
 till' iiH'onie for certain yearn. Her hiiHliand wan 
 lit tlial time in partnership with \Vm. (.', Silver, 
 tiirrying on a liUNinen.s in Halifax which was con- 
 (liictcil hy Chax .S. Silvi^r alone, Wni. ('. Silver 
 liaviiii; withdrawn from the management of it, 
 iuid t;iking no oversight of its atl'airs. When 
 |)liiiiilifr directed the money to lie paid to her 
 lui.sliaiid she knew he wan in einbarrauMt'd cir- 
 ciiMi>liinces, and he had then and long before 
 I'xiiiiiixted his ca))ital and become indebted ^i 
 till- tinn, his family being meanwhile supporteil 
 fiiiiii tiie funds of the tirm. In those circum- 
 suuiics he had ordered the money, paid over to 
 liiiii liy his wife's trustees, to be paid to i i-editors 
 <i[ ijje tirm, and opened an account on the tirm 
 li'Hiks, charging the tirm and crediting Mrs. 
 .■Silver with the money .so paid, t'has. ,S. .Silver 
 (lied insolvent in I.S70, when Wni. (". .Silver 
 tiist became aware of the course pursued by his 
 i'ii])iirtner. I'laintiH' in this suit claimed from 
 Will. ('. Silver as surviving partner, the repay- 
 iiioiit of the money so leceived by the tirm and 
 tieihted to her. 
 
 Jfilil, that {'has. S. Silver was not justified in 
 cieilitiiig such moneys to plaiiititf without her 
 tiiiiciirrence or that of \Vm. C. Silver, and that 
 tile latter was not liable. 
 
 Si/rn- v. Si/rer, R. K. 1)., 160. | 
 
 I 
 
 13. Partnership property — Execution 
 
 against, for individual debts— -I'laintiff made an 
 mill iigieement with (i., the owner of a gold 
 tliiiin, to work a portion of the claim, plaintiff 
 receiving two-thirds of the profits after paying 
 (ill expenses. Defendant, acting as Sheriff of 
 the County of Hants, levied upon and sold cer- 
 tain gold taken out of the mine l)y plaintiff, on 
 an execution against O. Plaintiff having brought 
 
 trover for the gold »o taken, and a verdict hav- 
 ing panned in liif* favor, 
 
 Ili/il, that the Sheriff hIiouIiI have sold only 
 the execution debtor's Mliiire, leaving the pur- 
 chaner to Mettle with the plaintiff. 
 
 Mi-l>onnlil v. (•■•/tint, U N. M. I)., fi.M. 
 
 14. Payment to member of Arm at plare 
 
 of buHiness Presumption as to I'laintilt and 
 >lajor cntereil into an ugreement disHolviiig a 
 business co-partnerHhip which had existed be- 
 tween them, and providing tliat each party 
 should account with the other for, and pay to 
 him, the proceeds of any co-partnership goods he 
 might have sold, and the amount of any co- 
 partnership delits or money he might have 
 received, or discharged, or given receipts for, or 
 offset against his own ])ersomil debts, but which 
 he had omitted to pay into the co-jiartnership or 
 to enter in its books. It .mis further provided 
 that Major should convey to plaiutilf all his 
 interest in the co-partnership, its stock and 
 effects. This conveyance was made, and de- 
 fendiiiit, as a jiart of the arrangement, enttreil 
 into a bond to plaintiff, in the sum of i'HMi, of 
 which the condition was that Major should make 
 the jiayinents, and )>crform the obligations, etc., 
 ill the agreement, etc., provided. It having been 
 ascertained that ii numlier of persons who 
 appeared to be indebted to the tirm, had paid 
 the debts due by them to Majcn', in money, 
 which moneys were paid to him in the place of 
 business of the firm, and that others had settled 
 debts due the firm, i>y offsetting against them, 
 claims against Major personally, and defendant 
 having been called upon, under his bond, for 
 payment of these amounts, 
 
 //ilil, that to the extent of moneys actually 
 paid to Major in the store of the firm, it might 
 fairly be j)re8umed that such moneys were paid 
 into the till, ami not retained and applied by 
 Major to his own use, and that for such moneys, 
 a jury might well hesitate to make defendant 
 responsible. 
 
 Ikdinlh V. Lordly, 1 N. 8. D., 72. 
 
 13. Ranking on Arm and private estates 
 
 — Claimants held the joint and several notes of 
 
 Ladd, Porter & Co. as a tirm, and of each of the 
 
 two 'partners in their individual capacity, as 
 
 security for a debt due by the firm. 
 
 Hdd, on appeal from the County Court, that 
 
 under section 84, of the Insolvent Act of 1 S7a, 
 
 claimants were warranted in ranking on the firm 
 
 estate and also on the private estates of the 
 
 co-partners. 
 
 In re Ladd, Porter db Co., Iimolvents, 
 
 Hall et at., Claimants, 1 R. & G., 32. 
 
983 
 
 PAYMENT. 
 
 984 
 
 16. Rights or partners — Limit to — One 
 
 partner cniinot enter on his partner's land and 
 remove a building, though tiiat building be 
 merely on blocks and hiis been built by partner- 
 ship funds and intended for a store to carry on 
 the partnership Imsiness. 
 
 McKenzie v. McKenzie, 
 
 1 Thorn,, (2nd Ed.). 198. 
 
 17. Suit by a partner against co-partner 
 
 — On a dissolution of a co-partnership between 
 defendant and plaintiff, defendant agreed to 
 assume the liabilities of the firm. Plaintiff and 
 defendant were sued jointly by one of the part- 
 nership creditors. Defendant agreed with plain- 
 tiff that the latter should pay tlie debt, and that 
 he would repay him the whole amount. Plaintiff 
 paid the debt and sued defendant in u.immpi<it. 
 
 Hi Id, tliat plaintiff could recover, notwith- 
 standing the former relation of partnership. 
 
 Foyh V. BhKjham, 4 R. & (i., 404. 
 
 1$. Wliat constitutes — Tlic defendants 
 
 McL. and F. entered into an agreement whereby 
 F. undertook to " carry on and engage in the 
 business of an auctioneer and commission mer- 
 chant in the city of Halifax, commencing said 
 business at and from tiie day of 
 
 and to continue the same for four years, 
 to conduct it in such a manner to the best of his 
 ability, as to make it remunerative, and to pay 
 over to the said McL. one-half of the net profits 
 made upon all transnotions." It was further 
 stipulated that if at any time during said term 
 tlie said McL. should become dissatisfied with 
 said business, he might demand that the said F. 
 should wind up and bring the same to a termina- 
 tion ; that stock should be taken and the books 
 and accounts submitted to the said McL. when- 
 ever re(inired by him. In consideration of this 
 the said McL. agreed to advance the sum of !?500 
 to be wholly put into and invested in the said 
 trade or business." Likewise " to procure to be 
 discounted for the said F. different notes of hand 
 at different times, being at such times as the 
 said F. may require in sums not to exceed .§2000. " 
 A further advance of §40 per month was to be 
 made by McL. to be expended in paying for 
 the services of a man to assist in carrying on 
 said business. 
 
 It was furtlier stipulated that the said F. was 
 to carry on said business "in his own name 
 alone, and not to connect with it or use in any 
 way whatever the name of the said McL. either 
 in general business or in any transactions con- 
 nected therewith," and further, " that the said 
 agreement is not to be in the nature of a part- 
 nership nor for any other purposes or acts than 
 
 those specified and set forth. Nor is eitiicr 
 party to be responsible for the debts contractyd 
 by the other in a business or private capacity.' 
 Hdd, that the relationship thus established 
 between McL. and F. was not that of partners 
 nor of principal and agent, and that McL. was 
 not liable for goods purchased by F. in iiis 
 capacity of auctioneer and commission merchiint. 
 Darlinu v. Mt-Ldtand tl a/., 2 R. & C, l(i4. 
 
 19. Wliat constitutes — A communion of 
 
 the profit and loss of a business between two 
 parties constitutes a partnership between lliem 
 as to that business. 
 
 Jiaiik of Nova Scotia v. Halihnrloit, 
 
 James, .S.')0. 
 
 20. Wliat constitutes— To make a part- 
 nership it is not necessary that all the partntis 
 
 ' should contribute money, or in eijual prupDi'- 
 
 j tions. It is sufficient if they contribute wlmt 
 
 is e(|uivalent to money. Nor is it required tliiit 
 
 all the partners should share ecjually in the 
 
 profits and loss. 
 
 j Where one party found the trading license and 
 allowed the use of ids name, the other the ciugn, 
 and the profits were to be ecjually divided, but 
 the former was not to share the losses, 
 HM, a partnership. 
 
 The Herkimer, Stewart, 17. 
 
 PART OWNERS- 
 See SHIPPING. 
 
 PARTY WALLS 
 See FENCES. 
 
 PASSENGER- 
 See CARRIERS-NEGLIGENCE. 
 
 PAIJPER- 
 See POOR LAW. 
 
 PAYMENT. 
 1. Appropriation of payments— A creditor 
 
 has a reasonable time to decide to the credit of 
 
9S5 
 
 PEACE OFFICER. 
 
 98G 
 
 Nvliicli of two accounts lie will place a sum of ! 
 money that has been paid to him, without 
 iipplifftlion of it by his debtor. An instant 
 (luuision is not retjuired ; and where neither 
 iiiirty has made an appropriation, the Court may 
 exercise the power to do so. 
 
 MvKenzie v. Uonloii, 1 N. S. 1)., loS. 
 
 '2. Bond for snle of land — Failure to 
 
 complete purchase — Agreement to apply 
 money paid on account of purchase to rent- 
 Recovery back of money paid on purchase in 
 excess of rent— Defendant entered into a l)oud 
 to iiliviiitirt' under seal, in which it was recited 
 thill plaintiff had agreed to purchase from ; 
 defeiiilaut a tract of land for .*1,'2(K> with 
 iiiteiest, as follows : One year's interest to l)e 
 [iiiil in one year from date of bond ; one year's 
 iiiitiest in two years ; and one year's interest, 
 tiigcther with the principal, in three years. It 
 «:is further specified that if default slumld lie 
 iii;iile in the payment of the princii)al or interest 
 it< iigieed upon, plaintiff should become a tenant 
 t(i ilefeiidant at an annual rent of .'*7-, and that 
 all ]i;iynients made by plahititfs, or upon certain 
 siiecified notes of hand indorsed by way i>i 
 SfLiuily for the jjurchasc money, should be 
 ii|iiilied to the interest or rent as the case might 
 lie. Another part of the agreement stated that 
 wlKilever sums were applieil, as aforesaid, the 
 reiMiuiider should be applied to reducing the 
 liiiiicipal sum. And, further, that in the event 
 (if jilaintitf failing to pay as aforesaid, and 
 smrundering up the premises at the end of the 
 tlueu years, all payments made in that case 
 heiiLg applied towards rent at the rate aforesaid, 
 tlie said note and the said indorsed note shall be 
 t'iven by the said defendant, &c. 
 
 //(/(/, that the ])laintift' was entitled to 
 recover the amount that he had paid defendant 
 over and above the amount apjjropriated towards 
 tlie rent for the period for which he (jceupicil. 
 
 Holmtn V. JJnrisoii, 3 R. & <!., (il. 
 
 3. Payment, after notice by party In 
 
 whose hands money attached — Liability to 
 pay party attaching — The defendant's bar(|ue 
 viuiglit fire, and was scuttled and sunk in Halifa.x 
 liuiljor. She was raised by the Columbia Coast 
 Wrecking Company and sold to one (!. Wilson, 
 at pulilic auction, on l)ecend)er 22nd, 1865, for 
 tlie sum of ii6'>2 10s., he paying a deposit of £56, 
 Mill letaining the balance. On the 16th January, 
 IStiU, Wilson received a bill of sale of the barque, 
 hut did not register it until the 25th of May. 
 On the 14th of March, previous, the plaintiff 
 cnninienced proceedings against defendant as an 
 aljscnt or absconding debtor, under which the 
 
 barijue was attached, and, on the lOth of the 
 same month, Wilson was served with a sum- 
 mons, as defendant's agent, in tn'der to bind the 
 balance still remaining in his hands. 8ub.se- 
 (juently to the service upon him of thesunnmins, 
 Wilson, out of the funds in his hands, paid to 
 the agents of tlie Wrecking Company the sum 
 of 5<83;1.67, for their demand for salvage services. 
 Hild, iii/i r alia, that having done so with 
 notice of phiintifl''s interest in the fund, and 
 without enabling him to contest the Company's 
 claim, in whole or in jiart, he must be regarded 
 as having made the jiaynient of his own wrong, 
 and that plaintiff's right to the fund could not 
 be jirejudiced thereby. 
 
 Oxiuj V. Sjiisartnilir, 1 N. S. I)., 144. 
 
 4. Payment by mistake —Reeovery of — 
 
 Sec MONEY COUJiTS. 
 
 5. Payment Into Court, no admission of 
 
 liabilty beyond the amount paid in — 
 
 Iki'ird V. Aiiilirsoii it at., .'{ N. S. \)., 18I. 
 
 0. Payment to member of lirm at iilaee 
 
 of business — I'resumption as to — 
 
 St PABTXERSHIP. 
 
 7. Payment to talie ease out of Statutes 
 
 of Limitation- 
 s'. LIMITATIONS OF ACTIONS AND SlITS. 
 
 8. Priority of payments -Equitable doe- 
 
 trine — The note sued on, with others, was given 
 to M., to assist him in his business in Halifax, 
 and was indorsed by him in blank and given to 
 the plaintift's, not for discount, but to be held by 
 them as security for advances. Accounts were 
 put in showing advances amounting to ^95,<K)0, 
 and resulting in a bahince of 618,(KX) due by M. 
 to the plaintiffs. The notes were not mentioned 
 in the accounts at all. 
 
 Hdd, tliat the eijuitalde doctrine as to priority 
 of payments did not ajiply so as to discharge the 
 notes as elder obligations. 
 
 Mnrhauts Bank v. S/irlliii/, 1 H. & O., 4;W. 
 
 PEACE OFFICER. 
 
 "Peace olUcer In due execution of his 
 
 duty," in Dom. Acts 1869, c. 20, s. 39, held to 
 include constable serving civil process— 
 
 See CONSTABLE, 3. 
 
9S7 
 
 PENALTY. 
 
 988 
 
 PEDLAR- 
 MOXEY COUNTS, 6. 
 
 PENALTY. 
 
 balance olaiinoil to be tliie hiin under the con- 
 tract. 
 
 The (lefeiiiliuit puiil 1?1S4.'2."» into (\)uit and 
 cluinieil to set off .^i") per week for eight weeks' 
 (lehiy in eonipleting the eontniet. 
 
 Tiie leiirneil Judge below found the ;*•_'.") per 
 week mentioned in tlie agreement to be lic|ui- 
 dated damages, but held that the «ork was sub- 
 stantially done at the expiration of three >ietk.s 
 
 1. Appeal ft'om conviction for, under 
 
 Fisheries Act— An ai)i)eal lies to tiie Suprejne , 
 
 Court from a conviction for penalties under the ; from the date mentione.l in the agreement, aii.l 
 
 Dominion Fisheries Act, 18(iH, cap. (iO. | therefore only allowed the defendant A2.-) per 
 
 (hum V. To<l<l, 1 R. & C, (i'2. i week for three weeks. The defendant appeiikd 
 
 from that part of the judgment apportioning tiie 
 
 i. Keeping disorderly house— By whom | damages. On ai)pea1 'o a Divisional Court the 
 
 penalty recoverable — //'/'/, that nntler tiie jmlgment of the lower Court was sustained. 
 
 Acts of 188'_', chapter '2'*, section D), the penalty Defendant appealed to Full Court. 
 
 imposed for violation of the City Charter by 
 keeping a disorderly bouse, was clearly recover- 
 
 Held, that ilefendant was entitled to oHk't 
 the ?'2.'> per week for the full period of eight 
 
 able in the name of the City of Halifax before j weeks, it appearing from the evidence that ccr- 
 the Stipendiary Magistrate. : tain portions of the repairs were incomplete 
 
 City of Halifax v. Brown, 6 R. k (}., 10.3 ; until the expiration of timt period. The fiut 
 
 C. L. T., 144. tbat the defendant moved into the house, before 
 ' the repairs were complete, was not a waiver nf 
 
 3. Penal Statute - Construction of - ; ,,j^ ^j ,,^ ^^ ^j^^i,,^ f^„. ^,,^ f^n p^,i„,i ,,,„,i„j. 
 
 Plaintiff supplied defendant with merchandise, i ^^.j^.^,^ ^,^^ ^^^^^^.^.^ remained incomplete, 
 and among other things, with intoxicatnig liquors [ j„,,g„,g„t ,y„g ordered to be entered for tiie 
 in <iuantities of less than one gallon delivered at | ,,gfe„,,j^„i f„^ ,^11 the ccsts, including those in 
 one and tiie same time. Defendant, on the other I ^j^^ ^.^^^.^ 1)elow. 
 
 hand, supplied plaintiff with articles which were 
 placed to his credit in plaintiff's books of account. 
 On a settlement of accounts, plaintiff struck out 
 of his ac(;ount all charges for liquors supplied as 
 above and, with defendant's consent, deducted a 
 like amount from the latter's credits by way of 
 payment for tlic li'iuor. Defendant having given 
 a promissoiy note for the biilance. 
 
 Horton v. ro/^iH, '20 N. S. R., 
 
 (8R. &0.), 169; 8C. L. T., 377. 
 
 5. Penalty by contract — Plaintiff was 
 
 sub-contractor to defendant, wlio was engiit'ctl 
 
 in the erection of a large building. Defendant 
 //'/(/, that the note so given was not void was under agreement with the owner of tiie 
 under Revised Statutes (.Srd .Series), cliapter building to have it finished within a certain time 
 19, being neither for nor to secure intoxicating or to pay a penalty for each week thereafter, ami 
 liquors in any (juantity as forbidden by the when contracting with plaintiff, it \\as agreed 
 .Statute. The Statute being lesliictive of the upon l)etween tiiem that, if the penalty slioiild 
 common law and of a penal character must re- , be incurred through the dilatoriness of tlie plain- 
 ceive a restrictive construction and on no account tiff, the amount of the penalty shoultl lie dediie- 
 sliould be construed to mean anytiiing other than ted from the sum to be paid by defendant to 
 the plain onlinary meaning the words would plaintiff under the subcontract. The coiniile- 
 
 tion of the building was ilelayed for scvtriil 
 M<:Ka<:hi,n, 3 N. S. D., 3.") k "279. j weeks, and the defendant, alleging that this was 
 
 the fault of tlie plaintiff, withheld the anioniit 
 
 convey. 
 
 ,S';/i'V/^ v. 
 
 4. Penalty by contract -'building con- 
 tract, &c.— IJy a written agreement between 
 plaintiff and defendant, plaintiff i greed to repair 
 a buililing owned by defendant, the work to be 
 completed by a certain day under a penalty of 
 §'2."> per week for every week that the Iniilding 
 remainc'l untinisbed after that date, said §'25 
 per week to be settled and stijuilated damages 
 for delay. The contract was not completed at 
 the date specified, nor for some time after. The 
 plaintiff sued the defendant for .*384.'2r>, the fuIJ 
 
 of the penalty when settling up with him, uni, 
 upon being sued tlierefor, pleaded that fact, to 
 which plaintiff replied that the 'elay was not 
 caused by his dih-toriness, but by defeiulant re- 
 •luiring him to do extra work, and also by 
 defendant not being ready for him when he began 
 to work. 
 
 The jury found for the plaintiff on all the 
 issues thus raised. 
 
 Htld, that the verdict should not be disturbed. 
 Scotl V. Hrniitou, .3 N. S. D., 405. 
 
998 
 
 PLEADING. 
 
 yoG* 
 
 6. Penalty for taking usurious interrst 
 
 -I'hiiiitit!', with liis liiotlier, tliu Hi'V. (i. V., 
 cMitretl into a promissory note Nov. .SOtli, 18(i7, 
 liy wliicii tliey agreed to jiay to the order of 1). 
 ,\; Co., the defendants, .'?1,4CI0, with interest, in 
 (UK' year after date. Wiien the note fell due, 
 iiiti-rest at the rate of six per cent, was paid 
 ii|i(in it, and the note was allowed to lie over. 
 (Ill Dec. .Srd, IStift, plaintiff paid another year's 
 iiitiiest, with two per cent, additional, which 
 (lefi'iidaiits demanded for extending the time. 
 
 Ih/(l, that the additional charge so made was 
 within the prohibition against taking more tiiun 
 legal interest, contained in chapter H"_', Revised 
 Statutes ('2nd series), and that defemlants were 
 liidile to the penalties therein imjiosed. 
 
 I'athrson v. Dvffax t( a!., 3 N. .S. I)., 52. 
 
 1, Power of Provincial Lei^islature to 
 
 prescribe penalties for retail of intoxicating 
 litiuors by unlicensed vendors — 
 
 V ' BRITISH NORTH AMERICA ACT, 8. 
 
 8. Recovery of, before Justices of the 
 Peace— 
 
 Ste JUSTICES OF THE PEACE. 
 
 and transferred from place to place," but "does 
 not include choses in action, notes of hand, 
 bonds, and securities for money loaned or due 
 which may be realized by action or suit or 
 othi: .,se. " 
 /« re The Bank of Yarmouth, 2 X. S. D., 308,. 
 
 PEW HOLOER- 
 
 Interference witli riglits of— 
 
 Stc ASSAl'lT, 4. 
 
 PILOTAliE- 
 
 *Vt SUIPPINe. 
 
 9. 
 
 of- 
 
 Revenuc Laws, penalties for violation 
 
 PERFORMANCE. 
 Of contracts— 
 
 PIRATES. 
 Practice of Admiralty Court as to property 
 
 taken by — It is the ordinary practice of the 
 i Court of Admiralty to direct property taken by 
 ! pirates to be returned to the owners without 
 
 delay, ai;d, except where there is a strong 
 fite REVENUE. ' '"^'^essity requiring it, without requiring bail 
 I for latent claims, taking care to protect the 
 
 riglits of the salvors, and the droits of Admiralty. 
 
 Qtieen v. The Chtmjuakt and Canjo, 1 Old., 797.. 
 
 See CONTRACT. 
 
 2. Allegations of, in pleadings— 
 
 sv PLEADING. 
 
 3. Speeillc- 
 
 Su: SPECIFIC PERFORMANCE. 
 
 PERJURY- 
 Ste CRIMINAL LAW, 14. 
 
 PERPETU.ITING TESTIMONY 
 >:tc EVIDENCE. 
 
 PLANT. 
 "Plant," when used in reference to a 
 
 manufactory was pioliably applied in the first 
 ins-tance only to such apparatus or machinery as 
 wa.s artixcd to the pieiiiise.s, but a more extended 
 nieuniiig seems now to be given to the word, and 
 the plant i>f a manufactory embraces all the 
 apparatus or machinery, whether fixtures or 
 olluTwise, liy mcaii.s of which the business is 
 carried on. 
 
 //( /•( Moiiiijoiimy, K. E. 1)., 154. 
 
 PLEADING. 
 
 PERSONAL CHATTELS. 
 
 1. Action to recover amount claimed for 
 
 professional services — Special agreement — 
 Drflnition of - The phrase "personal Delivery of bill not necessary— Pleading — 
 
 tliiittels '' means "<inly such things as animals. Practice — In an action brouglit by plaintiS's to 
 Imusehold stuff, money, jewels corn, garments, recover an amount claimed to be ilue for profes- 
 aiiil fveiytliing else that can be put in motion , sional services as solicitors for the defendant^ 
 
991 
 
 PLEADING. 
 
 902 
 
 the jury found that the defendant diil not ci.n- 5. AHHlgnce brillKin}; action In name of 
 
 tract witli the plaintiH's \>y retaining tlieiii to assignor- Assignment pleaded— Replication - 
 
 exuciite professional business for him us alleged. J'tr 'I'lionipson, .).— Where an action is lnouglu 
 
 It apjHiared clearly from the evidence that in by an assignee in the name of the assignor, and 
 
 two cases tlie plaintiH's liad liecii so retained, the assignment is pleaded, a replication is go<iil 
 
 iind in a tiiird case the relair,er was admitted, setting up that the action is l)r()ugnt l)y the 
 
 but defendant swore tluit at the time his aH'airs assignee. 
 
 were in the hands of C, his a.ssignee, and that llnimiy <7 al. v. C'iiiiniti<iham,ii K. & (i., 'A')'; 
 
 he said to ,S., one of the jdaintitls, " I am not (J (.'. L. '1'., 41H». 
 acting personally, nor am I going to pay any 
 
 money personally, but it must come by and «. AVOWF} Or fOKnizanfC — Not a picu 
 
 through the assignee and inspector and out of within 8. 243, P. A.— When the i)lainlitl' in 
 
 the funds in their haml.-i," and, further, " I told replevin proceeds to trial without pleading to 
 
 hiui distinctly tliat no jiersonal oliligation was the avowry or cognizance of defendant, it is ii 
 
 to attach to me. ' I niistrial, an avowry or cognizance not being a 
 
 Jllil, that tile denial of the retainer was not jdua witiiin the meaning of section 'J4.S of tiie 
 
 .•sustained by proof of the sjjecial agreement Practice Act. 
 
 ivlk'gcd. 
 
 -•t/>o, tliat the sjjccial agreement should have 
 been pleaded, au<l threw the burden on defen- 
 
 SL-iiiiur V. Clarb: t/ al,, \i 'riioni., jv.l 
 
 7. Bill or I'xclianv;!' — Stamping aricr 
 
 daut of proving atlirniatively, not only the acceptance and indorsement— Replication - 
 .source from whicii the funds to pay plaintitis IMendant pleaded asa set-oflto plaintitl'scbiin 
 Merc to come, but also that such funds had not ,^ ,,in „f exchange accepted by i)lainlitV and in 
 
 conic into defendant's hands. 
 
 Ritchie, •)., ili-^.-tniliiiii. 
 
 Under the practice in this Province, the de- 
 livery of a bill of costs as rc(|uired by 3 dames, 
 1, cliapter 7, is not necessary, costs being recov- 
 erable as any other delit. 
 
 SidijKwirlc (t al. V. Fairliankx, 7 K. it (i., .S99 ; 
 
 7 (". L. '1'., 435. 
 
 ti. Admission — The admission on tlir 
 
 records that ])aities are alive precludes the 
 presumption of fiieir death arising from con- 
 tinued absence. 
 
 dorsed to him. I'laintill' replied that tlie liill at 
 the time of its acceptance and indor.seiiiciil was 
 not stamped according to law. Defendant 
 demurred. 
 
 Htlil, that the replication was good, and tliat 
 if the stamps were altixed after the acceptance 
 or indorsement, it was for defendant to njnin 
 the facts which justified him in sul>sei|iKiitlv 
 atHxing them. 
 
 BulUr d al. v. Emus, ;{ N. .s. D., 171. 
 
 8. Bond— Oerencc to action on— neiinir- 
 
 DoaiK V. MtKi nuy, James, .'{28. rer —To a declaration on a bond to Her Majujiy, 
 
 conditioned for the performance by one of tlit 
 defendants of tiie duties of Collector of i^ito. 
 and the iuunediate payment over to the (iiiiuty 
 Treasurer of such rates whenever the siiiiis iv- 
 ceived amounted to 8HH), defendants jilciuli'd, 
 on e(|uitalile grounds, that while tiie .said fnl- 
 lector was travelling on the t^tiieeu's highway 
 with the sum of i^.XSti lawfully in his ])os.sessioM 
 for tlie i)urpo.se of paying it over to tiie Cniiiity 
 Treasurer, he was, witiiout any fault or want nf 
 
 3. Answer In equitable suit— The defen* 
 
 •lant in an eijuitalde suit will not be compelled 
 to answer under oath on the ordinary writ. 
 
 Mi:l'hii' V. Qirmaii, ■JTliom., S. 
 
 4. Arrest-Action for -Malice- Plaintlf.s 
 
 declaration alleged that the defendant had fraud- 
 ulently represented to B. H. & Co. that plaintiff' 
 was about to leave the Province, and that there 
 was reason to fear that B, B. & Co. would lose 
 
 a debt due tliem jointly by plaintitt'and defend- : 'l'l'g«'^'«''. f"i'oil'ly and feloniously robbed of «ii. I 
 
 ant unless the now plaintiti' were arrested. 
 Whereupon B. B. & Co. caused ])laiiititi' to be 
 iirrested, Ac. The declaration contained no 
 allegation that defendant had maliciously insti- 
 gated B. B. & Co. to arrest plaintiff, or that 
 
 sum. 
 
 Hdd, on demurrer, that the plea was good. 
 (Jtiitn V. Camtron it al., 3 K. & I'., •''•'' 
 
 9. Breach of promise of marriaso 
 
 they had no reasonable cause for so arresting Evidence of seduction may be given although 
 him, or that defendant knew that there was no ; seduction not alleged— 5th R. S., c. 104, 0.. 
 
 reasonable cause. 
 
 Hihl, that the declaration disclose<l no cause 
 
 of action. 
 
 Phdan v. Ktlly, 2 N. S. 1)., 529. 
 
 I XIX., R. 4.— Construction of — Milliiiiiidii v. 
 Lor'nii), G Q. B. 1)., 19<», which is authority fm 
 the proposition that evidence of seduction can 
 not be given in an action of breach of pioniist' 
 
993 
 
 PLEADING. 
 
 99+ 
 
 (ifniiirriage unless the seduction is alleged in tlie //-A/, tlmt these pleas were l)ad under aecs. 
 
 stiittiiiont of claim, was decided upon the follow- I")! and 1;VJ of the Practice Act, as they did not 
 
 iiig rule: " Kvory pleading sluill contain, as allege or show that the policy contained cuv 
 
 (oiiuiscly as may he, a statement of the nuvterial conditions re(iuiring the action t<. !,c Drought 
 
 fiuits on which the party pleading relies, l.ut within six mcmths, or enabling the company t.. 
 
 not thccvidence l>y which they are to he proved." terminate the insurance by notice ; and that the 
 
 This rule has since heen amended by inserting objections to the pleas were not such as could be 
 
 the wonls, " for his claim or defence as the case obviated by amending them under section Il.'4. 
 
 iri;iy be," between the words "relies" and Caldwdl v. Stculacona Fire I- Life Im. Co., 
 
 "Imt." nth R. S., c. 104, O. XIX. U. 4 con- 
 tiiiiis the rule in its amended form. 
 
 /'■»• Ritchie, .),, delivering the judgment of 
 \\w Court, the amendment materially alters 
 the rule, in my opinion contining the facts re- 
 i|uinil to be stated to those material to the 
 o;iiise of action or defence, and it would not now 
 lie necessary to plead the seduction, which is 
 not iiiateiial in that view. 
 Kmh-'i- V. Wooil, •J(l N. S. Fi., (M R. & (!.), 40. 
 
 10. Change Of venue— 
 
 I R. *(i., 'j.m 
 13. Confession, but Insufficient avoidance 
 
 — When the defendant puts in a plea containing 
 a confession of a cause of action, and an insufli- 
 cient reason for avoiding it, and the plaintiH" 
 joins issue and obtains a verdict on the immate- 
 rial issue, the Court will not award a repleader, 
 but will aUow plaintitl' to enter judgment upon 
 the confession. 
 
 Aftoruci/'O'eneral v. Paije, "JTIiom., 2Cf2. 
 
 Stc TRIAL. ! 
 11. Charter party — Construction of 
 
 14. Consideration— General plea of want 
 
 of — A general plea of no consideration, or no 
 Demurrer to declaration for freight— A cliartcr value, not stating the particular facts which 
 IMity contained the following clause :— "It is show the want of consideration, is good in this 
 yireil that the responsibility of the charterer Province. 
 
 iTiises as soon as the cargo is on board, the I Chipmaii v. Ritchie, I Old., 710. 
 
 vessel holding a lien on the cargo for freight and ' 
 
 .leimiiTOgc." PlaintifTs sued defendant (tlie 15. ConstructlOUOf plea-Equitablerepll- 
 tlmiterci ) for the freight, setting out in tiieir , cation — Departure -A plea though in the 
 'leiliuiition that the vessel was loaded and pro- present tense refers to the time at which the 
 cceilcd to sea with her cargo, and delivered the writ issued and nr)t to the time at whicii the 
 w.ign, Sec. Defendant demurred. j plea is pleaded. 
 
 ^tW, that the deniurrcr should be sustained, j Where an acticm is brought on a foreign judg- 
 
 w the declaration showed that defendant was ; ment, and the declaration claims the wjuivalent 
 
 ""''"'''''^' in Xova Scotia currency of the amount of the 
 
 Cook et- al. v. McLtod, .3 N. S. I)., ,'}07. , judgment it is a departure to claim in an ecjiiit- 
 
 j able replication an increased amount, on account 
 
 12. Conditions precedent — Averment - "f tl'e depreciation of the currency f)f the foreign 
 Denial- General issue— PlaintitF, in an action ' country, e<iuivalent to the change in the value 
 "11 a policy of insurance, referred in his declara- ; of the cuirency since the cause of action aro.se. 
 ii"» to " the conditions indorsed on the policy, lioml I't al. v. Ins, 2 Ohl., KiT. 
 
 Mv\ which constituted tlie basis of said insur- ' 
 
 ■nice," but he only .set out one condition referring 16. COUnter-Clalm bClOW Jurlsdiction- 
 t'l notice and pri.of of loss, alleging that it was ' Held, that defendant couhl not recover any 
 'lit- only condition material to his cause of action, | thing on a counter-claim pleaded by him, except 
 •111., lie averred general performance of conditions. ; money paid into Court, tlie amount being below 
 li«.femluut pleaded that tiie action was not : the jurisdiction of the Court. 
 
 I'immeiiced within six months after alleged loss, 
 wi'l the same was not sustainable under the said 
 "■iiilitioiis indorsed on said policy ; and by 
 '""'lii-'l' i>lea tliat by sahl policy the loss, if any, 
 « " niiiile payable to one Anderson, and before 
 'lif alleged loss the defendant company, by 
 •>"iiLe to said Anderson, terminated the insur- 
 ■;»"«'. luul said Anders.m agreed to terminate the 
 '"I'liianoe and deliver up the policy to l>e can- 
 fclleil. 
 
 Per McDonald, C. .1., diixenlituj.—A counter- 
 claim under the Judicature Act is in the nature 
 of a set -off, and the plaintilT having admitted 
 the amount to the extent of the payment into 
 Court, the defendant was entitled to the costs 
 of proving his claim, although the amount set 
 up was below the jurisdiction of the Court had 
 the defendant sued for it. 
 
 Hur/haii v. McCoUnm, 20 N. S. R., 
 (8R. &0.), 202. 
 
095 
 
 PLEADING. 
 
 •I9G 
 
 II. Deceit Not necessary in action of, to asi.le the (Icmuner (m the fe'n.mi.l that .Ifiiniirtr 
 
 allege that defendant knew the repreaenta- will not lie in summary units. 
 
 tion» to be false — Declaration Action i»r H<ld, that he was right in doing ho; uls.,, 
 
 deceit on representations of defendant with re- that defendants were properly refused coMs, on 
 
 gard to the sale of a mining property, the declu- the judgment in tlieir favor on liie denuimi , as 
 
 ration alleged that the representations were they had contributed to tlie error t.y pleiidiny, 
 
 made hv defendant falsely and fraudulently, to and in other ways. 
 
 in.luce plaintiff to act upon them, and that, Woodloi-k v. Dickie U at., (I K. .V (i., -.'IKI; 
 
 having acted upon them, the plaintitl had there- : ( '. L. I ., 4.)'.'. 
 
 'v;t::i ii::;:;:i;l" i;::r;,» ,.„i.,„«„n ... «. »er.«ee, .r..nd, »r. ,,«, demumw. 
 
 .I- . 1.1 I ;. li 1 ■„ 1 ,.,.nf.iiii iiiiv alle- —Costs not allowed, for irregularity --(.n.iiiiilx 
 siiliicient, altlKuigh it tlid not contain anj aut- 
 
 gation that the defendant knew the representa- 
 tions so made by him to be false. 
 
 McKay v. CampMI, '2 N. S. 1>., 475. 
 
 of defence tiled and served in tiie County ('nun 
 ' are not subjects of demurrer. Where tlie n- 
 t spondent succeeded on appeal, but there appeanil 
 I to have been some irregularity on his part in Uiu 
 proceedings below, the extent and importanctoi 
 which were uncertain, costs were not allowwl. 
 Mahon v. (iaminon, 4 K. & (i., l';i.'. 
 
 18. Declaration, defect In — Cured by 
 
 pleading over— The declaration set out that 
 the ilefcndant company falsely and maliciously 
 
 printed and published of the plaintiff, in relation ^^ Defence Of agreement With payee 
 
 to a certain office held by him as Deputy 1 ro- , ^^.^^^^^ ^^^^ .lefendant, in an action on a pnm.i. 
 vincial Secretary, in a certain newspaper, <'^«m I „j,^,. ^ j^y indorsee against the iiiiiker, 
 
 and ichich mid article appeared in the editorial ,. ;.,. .i, „ ,„ 
 
 columns of the Mornimj Hu-ald, &c., and was as 
 follows (the article being set out at length) 
 
 relies on an agreement with the payee as a de- 
 fence, the plea should allege that the note was 
 indorsed after it became due. 
 
 Chi}nnan v. Ritchie, 1 Old., 710, 
 
 23. Defences under Customs and Inland 
 
 Revenue Acts— Construction 5th R. S., c. 104, 
 O. XIX., R. 2, and O.XVIIL, R. 21, and 0. XIL, 
 R. 19— Unnecessary prolixity— General issue 
 — To an action brought against defendant, an 
 auctioneer in the city of Halifax, to recover 
 damages for the alleged wrongful sale of a horse, 
 waggon and h'.niess, seized by officers of the 
 
 Held, that although no "article" had been 
 mentioned in the count to which the words 
 " which said article "could refer, the defect was 
 cured by pleading over and particularly by jus- 
 tifying the publication. 
 
 Croniikill V. The Mornintj Herald Printiiuj 
 dt Publixhiwj Co., 4 R. & G., 200. 
 
 19. Deflnmatlon - Special declaration- 
 Demurrer— Demurrer to two counts of plaintiff's . ..^^ 
 
 writ in an action of slander, the innuen<lo in both i Inland Revenue while being used for the purpose 
 counts being that the plaintiff had been guilty of 1 of removing a quantity of spirits unlawfully 
 wilful and corrupt perjsry. The demurrer was 1 manufactured and liable to excise duties, defeiiil- 
 on the ground that the words were not action- I ant pleaded twenty nine grounds of defence 
 able on themselves, and did not support the which were expanded at great length, 
 innuendo. The Judge of the County Court for District 
 
 Hfld, that the counts were good, and that it No. 1 liolding that, under the Customs Act, 
 
 wasfor'the jury to say whether the plaintiff was Acts of 1885, c. VI, s. •-'•28, and tlic Inlana 
 
 warranted in putting the meaning upon them Revenue Act of 1883, c. 14, s. 72, the defciulant 
 
 get o„t. was bound to plead the general issue and give 
 
 Fer'jw^on v. Inman, 2 N. 8. D., 135. j the general subject matter in evidence, and tiiat 
 
 I the defences as pleaded were unnecessarily pin- 
 
 20, Defence, grounds of, not demurrable Hx, and were unnecessary and embarnissiiig, 
 — Costs— A bond was given as security for costs , made an order directing that all the pleas be 
 
 on an appeal to the County Court from the 
 Magistrate's Court. An action was brought on 
 the bond, and pleas were pleaded as to a declar- 
 ation cause. Plaintiff demurred to the pleas, 
 and defendant joined in demurrer. The de- 
 murrer book showing on its face that the amount 
 actually in dispute was under S40, the County 
 Court Judge treated the suit as a summary suit, 
 and the pleas as grounds of defence, and set 
 
 struck out with the excepti<m of the 4tli, whidi 
 denied the allegations and issues in the piaiu' 
 tiff's statement of claim, and which he held to 
 be equivalent to the general issue. 
 
 Hdd, that the order must be set aside with 
 costs. 
 
 That the pleas, though expanded at great 
 length, were not necessarily, on that account, 
 embarrassing. 
 
91»7 
 
 PLEADING. 
 
 998 
 
 That uiHlcr the Judicature! Rules, unnecegKiiry miilcl finin lkil.a<loeH to Trinidad, and tlicnue 
 
 Ici.L'tli in ii matter whicli can \<v oiri'ttiially dealt to Sf. Tiioiiian, in hearoli of a market. 
 
 with on taxation of costM, as provided liy Order 
 XIX, Ilulu'-'. 
 
 I)()iil>tfid whether the auctioneer who Bells 
 yiKPils seized under these Acts can avail himself 
 (if the protection the Statute gives to revenue 
 ('dicers. 
 
 Not Ixjund to plead the general iKsue even if 
 
 //'/'/, tliat the plea was had for duplicity, as 
 diHclosing sevend distinct acts of deviation. 
 
 A party who prefers to answer a jdea to w hich 
 he might have demurred for argumentativenesM 
 or duplicity, is liound to answer any material 
 allegation contained in the plea. 
 
 I'Ica in answer to an allegation of constructive 
 
 licM to he an oflicer entitled to the protection of total hi.ss ami ahandonment, shewing ii deviation 
 
 the >tatutc. hefore al)andonment and a re8umi)tion l»y ,,:.iin- 
 
 It is a privilege which the ofJicer may or may tifl' of the voyage after the ahandonment, and 
 
 not make \isu of. 
 
 I Ik 
 
 also of the control of tlie property and its sale 
 riiat Die learned Judge was wrong in holding at another jx.rt hefore reaching destination, 
 ic »th ground of defence to be equivalent to ■ }hld, that plaintitr was hound either to dLmur 
 the general issue, as it was not so pleaded and for duplicity or to answer the deviation and 
 (lid not comply with the requirements of Order the suhsequent resmnption of the voyage, and 
 .Win., Rule 21, and would have been a viola- 1 also the sale of the cargo and abandonment of 
 tioii of Order XII., Rule 19. the voyage at St. Thomas, each of these being 
 
 That some of the pleas struck out were good material averments. 
 ,19 containing distinct denials of material facts I'lea of deviation does not answer a partial 
 
 set (lut in plaintitTs statement of claim and 1 loss occurring previous to the deviation. Dechir- 
 ess.'ntial to his case. | ation, alleging a partial loss iKjfore going to 
 
 That others were good as asserting title in the Harbadoes, followed by a subswiuent total loss 
 (kfendant and in Her Majesty. That others after arrival there. (Jeneral plea of deviation, 
 were good as justifying defendant's action under 
 the provisions of the Inland Revenue and the 
 Customs Acts, all the defences being such as 
 defendant was clearly entitled to make use of. 
 
 S'liihk, 'chat the Judge of the County Court 
 migiii have directed the substitution of a state- 
 ment in a sununary form of the material facts 
 
 Held, that the plea should have stated that 
 the deviation took place before any loss occurred. 
 
 (Jeneral plea of deviation in answer to a count 
 stating that vessel went to Barbadoes as a port 
 of necessity, where there was a constructive total 
 loss and abandoumeni;, must aver that the devi- 
 ation took place before any loss occurred, or 
 
 ortimtthe parties prepare issues or have them otherwise must controvt *he alleged necessity 
 
 settled by the Judge. 
 
 McDonald v. Clark,, i>0 N. S. R., 
 
 (SR. it (i.), 254. 
 
 24. Demurrer— Wbere the demurrer Is to 
 
 the whole writ, if there is any part of it which 
 entitles the plaintiff to relief, the demurrer must 
 be overruled. 
 
 Eaton v. IVtatherbe, R. E. D., 48. 
 
 25. Demurrer — Where part only of a 
 
 declaration is bad, the demurrer should be to 
 thiit part and not to the whole <leclaration ; and 
 if in such case the defendant demur to the whole 
 declaration, the Court will give judgment on the 
 demurrer for the plaintiff. 
 
 Tohin V. Symondsetal., 2 Old., 141. 
 
 26. Demurrer — Answering demurrable 
 
 plea-Plea of deviation— Plea not a denial- 
 Action oil policy of insurance covering voyage 
 from Halifax to Pernambuco, ami a market. 
 ^'cssel put into Barbadoes, as plaintiff alleged 
 to repair damages. Plea of deviation ; that 
 vessel put into Barbadoes not for the purpose 
 alleged, but to seek a market, and afterwards 
 
 The count alleged that .■..) vessel could be pro- 
 cured at Barbadoes to carry on the goods. I'lea, 
 that plaintiffs made no iiKjuiry and took no 
 means to send on goods, held bad, as not amount- 
 ing to a denial. 
 
 Whether, in case of shipwreck, the master is 
 bound to send the goods to an intermediate port 
 to reship them, when there are no means of 
 transport direct to destination of cargo, if any 
 obligation exists, is a ((uestion depending on 
 special circumstance.s, and the possibility of such 
 means of transport existing need not be specially 
 negatived in a declaration to recover insurance 
 for loss of goods. 
 
 FairhauLs ft al. v. Union Marbit Ins. Co., 
 
 James, 271. 
 
 27. Demurrer- Defence raising no issue 
 
 —Accord and satisfaction— Plaintiff brought an 
 action on the case setting out that he had made 
 a contract with defendants, and had been pre- 
 vented by them from completing it. 
 
 Pleas that he had failed to carry out the con- 
 tract, hild, bad on demurrer. 
 
 Plea setting up a new agreement between the 
 parties respecting the same subject matter before 
 
900 
 
 PLEADING. 
 
 l(;()0 
 
 action, liiilil Koiiil, tlioiigli not avori'iiig tliat tlic 
 
 lU'W iigrcfiniMit WiW hufofu l)ri!iii.li of tlii^ tirst 
 
 )in<l not iillujj'ing lu-eonl ami satiHfaotion of the 
 
 lircai'li. i 
 
 (iillix V. TruitctH of School Svciion !U. i 
 
 •2 H. A:('., ."WK. 
 
 a». UemurriT book - Filing of- Depurt< 
 
 lire— Special deniuner -Wlieie (k-fendanl <U'- 
 nuirrcd to jilaintitl'M replication ami plaintitT 
 moved to strike tlie nause oH'tlie docket, on tiie 
 j^ioiilid tliat defendant had not tiled tiio demur- 
 rer book at Halifax on the Tiienday preceding 
 the term, tiie Court refused to strike oil' the 
 cause, hoMing that the carriage of the demurrer | 
 was with tlie plaint ill', who iiad a right t<i say 
 whether he wouM iiring on the demurrer or the i 
 pleas tirHt. 
 
 To a declaration for carrying away and con- 1 
 veiting goods of the plaintiff, ilefendant jileailed, < 
 justifying the taking as a distress. l'laintitr| 
 replied that the ilistress was excessive, and \>y 
 other replications alleged indifferent forms, that 
 tlie auHuint of the rent had heen satisfied l)y 
 rejiairs, the cost of which defendant had agreed 
 to deduct from the rent, 
 
 H>ld, on demurrer to the replications, that 
 the replication alleging an excessive distress was 
 a departure and therefore had, and that tiie 
 demurrer thereto must he allowed with costs ; 
 that the other replications would be objectiona- I 
 blc on special demurrer only, and that as re- 
 spected them each party should pay his own , 
 
 costs. 
 
 Utiijamin v. Tobin, 2 R. it i'. , 04. 
 
 29. Demurrer— Joinder In -Power of the 
 
 Court or a Judge — Neither tlie Court nor a 
 Judge has the power to authorize a party de- 
 murring to join ill demurrer, unless, as a condi- 
 tion for some favor to the opposite party. 
 
 Oarric v. Ptnii:', 2 Old., 71. 
 
 30. Demurrer — Parties - Pleadings — 
 
 Plaintiff in his writ, set out among other things 
 that defeiulaut and himself were engaged in a 
 co-))artnorsliipas attorneys, &c. , from September, 
 IMIH), to December, 1H71, that in 1867 one Kirby 
 informed them that a certain coal area would be 
 vacant, and asked them to join with him in 
 applying for it, as he anticipated trouble in 
 getting it, and wanted assistance, to which they 
 agreed, the license to search being taken in the 
 name of defendant, who held it for the benefit 
 of said Kirby and the said firm (the respective 
 proportions being set out in the writ) ; that 
 afterwards defendant obtained with the same 
 consent, and for the benefit of the same parties. 
 
 a license to work, the fee therefor being paid out 
 of the partnership funds ; that a renewal of lliu 
 license to work was aflerwardw obtainecl by de- 
 fendant, anil before the expiration of the re- 
 newal, and after tlie dissolution of the co-pdil- 
 nership, defemlant without <iiiisulting plaintitr 
 and without his knowledge, obtained a lease nf 
 the area in conjunction with said Kirby and re- 
 fused to rocogni/e plaintiff's claim to any intere.si 
 therein. 
 
 JIi/il, on demurrer, that it was not necessary 
 that the agreement in respect to said area he 
 alleged in the writ to have been in writing ; tlmt 
 Kirliy mentioned in the writ was not a nece.'tsiiy 
 party, as no complaint had been made against 
 him, no relief was sought from him, ami n<> 
 decree could be made against iiini, and that the 
 facts set out constitulecl a good grounil fur 
 the relief sought for by iilaintiff, as a.ssuming the 
 statements in the writ to be true, the detViicl.aiit 
 was a trustee for the jilaintitl' to the extent ot 
 plaintiff's interest in tlie area. 
 
 Katoii v. H'lnlhiilii, H. K. 1)., 4N. 
 
 31. Demurrer -Pleading SheriflT's rcturn- 
 
 //(/(/, in an action against the Sheriff for sel- 
 ling jilaintitl's goods under a writ of attachmrnt 
 against the L. Mining Co., on a demurrer to ile- 
 fendant's plea, wdicli set out the attachnieutaiiii 
 levy of the goods, "as and being the goods nf the 
 L. Coal Mining Comiiany," and the sale r)f the 
 goods, " beuig the property of the L. Coal Mill 
 iiig Co.," that the plea was bad, as it did nnt 
 allege that the goods were not the goods of tlic 
 plaintiff. 
 
 Wilkins, J., fli-ssciiliinj. 
 
 liradby v. MrUaii, 2 H. & ("., M. 
 
 Reversed on appeal to the Supreme Court nf 
 
 Canada. ,, ,, ..,. 
 
 McLean v. limdhy, 2 8. ( . K., .i.i>- 
 
 Sti CORPORATION, 1 7 
 32. Demurrer-Plea to several counts 
 
 Not meeting allegations in writ— I'laintirt'* 
 tirst count alleged breach of an agreement on tiie 
 part of one of the defendant companies to deliver 
 to him on certain conditions, the perforiiiance ol 
 which was alleged, §80.000 of tirst inoitgage 
 bonds of the Halifax and Cape Breton Kiiil««.v 
 and Coal Co., which bonds could long since hw 
 been delivered. The second count alleged thai 
 defendants had contracted to use diligence t" 
 procure the issue of said bonds so that they 
 might be delivered and attach and be a tirst lun. 
 The third count proceeded as the Hrst, iwidm^ 
 that defendants had so delayed work on the rail 
 way that sufficient thereof could not lie cmii 
 pleted to entitle them to issue said boiida, aim 
 
1001 
 
 PLEADING. 
 
 1002 
 
 im.i iTfiite.i ixTiiiin otiiir lioim wiiiiii w..iii<i 35. Double pleading A derendaiit Cannot 
 
 (iitvi'iit tliL'iii fiDiii giving,' pliiiiititr lliu fust lifii jileail doiililu i<v hcvoiuI iiiiittiTN in the luse of 
 cdiilriicted for. Tliu fourth ooiiiit set out tliut the Crown. 
 
 (Icfiiiiliuits liiul agreed to reliii(|uisli their righlH | (Jimii v. Framr, 'J H. k ('., 431, 
 
 ii|iiiii tlie I'ictoii Hraiich, upon which phiintitfH' 
 
 iiuiiiis worn to attach in the event of itH heing 36, Ejectment - Dercnce as to part- Wlion 
 
 Iminifil over, and cliarged <k'fen(huit.s witli pro- '" ejeetnieni the di-fi iidant hy Iiim plea purpoiis 
 curing certJiin legishitiou of the Dominion ax well to defend for a part of tiie land claimed in ilu' 
 us iif the Local I'arlianieiit, incouHiHtent witli p'lvintitF'H writ, hut in fact dewerilieH a didricnt 
 llicir iigret'Mient with plaintiff which plainliir lot, the plaintitF will he entitled t<i judgment. 
 n'M--ted, while defendants opposed his action and /'"* Uliss, .1., in MrMarsttrn v. Uraham — If 
 insisted that the legislation should pass without such a |)lca he jtnl in with the design of mislead- 
 itlVrt lice to his rights. The sixth count alleged '"g'> I will eiuleavor to make the attorney pay 
 tVaiid. Defendants' third plea to the first, second <!>« t'osls out of his own pocket, 
 liii.d, fourth and fifth counts, alleged that said | 
 iimrtgage honds could not legally lie issued, al- 1 
 tliciigh defenduMls had used every ililigence. j 
 The fourth i)lea to the same counts set out that 
 tile (iovernnient of Nova .Scotia had withheld its title to relief must be alleged in — 4th R. S., c. 
 cciisiiit to the i.ssut! of i(ai<l bonds as it was 94, a. 16'-' - I'laintitt' lirought action for the non- 
 aiitliorized and empowered to do. The fifth 
 [ilia alleged that defendants had used every 
 
 Hadly V. Shirnmn it al., '2 Thorn., 41G; 
 MrMarKtirt v. (I'rnhnm, Id., 417. 
 
 37. Equitable defence Facts which en* 
 
 ililiucnce to procure the issue of said lionils, 
 wliii h, so far as defendants could make them. 
 
 delivery of certain goods. Defendant pleade<l 
 among other pleas that plaintiff was estopped 
 liy a judgment in a former suit hrought hy the 
 present defendant against the now plaintiff 
 
 siiunld attach and lie a first lien. The sixth jilea fortius price of the goods, to which action it 
 til tlic same counts alleged that defendants \>cre was ])lcaded tluit tlie goods had not been dcliv- 
 iini untitled to have the Pictou idad transferred, j ered, which issue was found against the present 
 aiiil ileliveicd to defendant company as alleged, i plaintiff. He|)lication, among others, on e(|uit- 
 Tlic ninth plea to the fourth count ilcnied tiiat iil'ln grounds, in effect that the judgniciit 
 (It iVinlants had agreed to relin(|uish their rights ; pleaded had been recovered without jilaintitf 
 III I he I'ictou branch, or applied for or obtained having had an oi>]ioitunity, owing to nnfor.seen 
 iui Act of the Nova .Scotia Legislature as alleged, I eircumstances, of substantiating his plea by 
 iirii|i|i(ised plaintiff's action in reference thereto, i testimony. The identity of tiie issues raised in 
 Till- tenth plea alleged that the Acts referred to 
 Wile jiassed to carry out the public policy of the 
 I'l'iivincc, and defendants had no power to pre- 
 vent their passage. 
 
 ll'lrl, that lliese pleas did not meet the allega- 
 tions in plaint ifl's writ. 
 
 V'"" )■' , whether the defendants could plead a 
 jilia to iicveral of plaintiff's counts without sng- 
 gisting tiierein that they were for one and the 
 sii'iie cause of action. 
 
 (•riijory v. Canada Improntw iit Co. it al., 
 
 •2 R. k (i., .SSI. 
 
 33. Demurrer - Statement nf mutter of 
 
 law— The only matter of law to be argued in a 
 ilonuirrer was contained in a note on the margin 
 nf the demurrer. 
 
 Hild suflicient to satisfy the Statute, cap. 94, 
 section i;j|. Rev. Stats., 4th series. 
 
 Gourley v. Carter, h R. & (J., S.S. 
 
 34. Demurrer to whole writ -Ground of 
 
 demurrer being to whole writ, even if appli- 
 cable to part of writ, must be overruled, as it 
 
 the two suits was clearly established, and a 
 verdict having been found for plaintiff, 
 
 III Id, that the docti'ine of estojipel applied, 
 that tlie eiiuitable lejilication, not setting out 
 the circumstances referred to, was insufhcient 
 and that the verdict must be set aside. 
 
 Marmaud v. MrCnady, ii R. it C, (Ki. 
 
 38. Equitable defence must be pleaded 
 
 as such— Plaintiff in ejectment claimed the title 
 
 under a deed from his father. Defendant 
 
 claimed under an unregistered agreement for a 
 
 twenty years' lease, prior to the deed, of which 
 
 he alleged plaintiff hail notice. The deed was 
 
 recordeiL 
 
 //'III, that the defence, if good, was an e<|uit- 
 
 j able <lefence only and couhl only be pleaded as 
 
 I such. 
 
 Ho,j,j v. Shtdd, ") R. k a., 490. 
 
 39. Equitable defence-Replication to - 
 
 When the defendant pleads a plea on equitable 
 grounds, the replication need not allege that it 
 is on equitable grounds, as no replication on any 
 
 could not be good in part and bad in part- ; other grounds can be pleaded 
 
 BRITISH NORTH AMERICA ACT, 13. 
 
 Barton it al. v. Baldicm, 3 R. & C, .302. 
 
1003 
 
 PLEADING. 
 
 11)04 
 
 40. Estoppel Xi'cewUy of plea of In ' N<)v«MniMT, mM tUv \<\\\ f..r full value tn ii,« 
 
 nil aitiiiM a^aiii.tt llu' ( ity for reniox iii^' plaint ill "» plaiutitT, wlii> ruinitled it the ftaiiH! day. 'I'lif lull 
 Https, it appoaifl in I'viileuco thai whi-n Iho wan accepted, hut the aL'i:ept(>i« having fmlid 
 City Kiigineer called on plaintitl' in reference to j heforu it matured, <lefendanta were Nued hm 
 the alleged encroachinoiit on the street, plaintiff indorHer«. Deteiidaiitu pleaded, among othir 
 iwked the Kiigineor to gj him the line of the i thingn, that they were diHoharged of tluir 
 Btreet, whereupon the Kngi.ieer marked it on lialiility, hy the delay in putting the hill m 
 
 circidation. A motion having been niaile to net 
 asiclo the pleaH, it waM contended on heliult of 
 dofendantu, that the (|ueHtion of undue delay or 
 negligence hIiouM he left to a jury. 
 
 Jlild, netting auidu the pleaH, that the lioiclera 
 of the hill, being entitled to reasonable time, 
 there was no such delay as to constitute a defiiue 
 in law. 
 
 Johnstone, K. J., was of opinion that theoase 
 was one which did not come within the 7l«t 
 
 the corner of the steps with a pencil. Defen- 
 daiit'H counsel contended tiuit plainlitf was bound 
 by this proceeding, under section '270 of the Act 
 of Incorporation, ar.d that ntit having appealed 
 under section ■2~\, he was estopped. 
 
 //</</, that the defendant couhl not take ad- 
 vanliige of th(! estoppel, not having pleaded it. 
 
 Km 11.1 V. Tlip City of Halifax, W K. it «i., .'J-M. 
 
 41. False -Pleas clearly shown by afll* 
 
 davit to be false will be set aside as being section of the Practice Act (Revised .Statutes, 
 
 vexatious. I .3rd series), and that the defendants were entil led 
 
 Emm,s ,t al. v. Taylor, .lames, 444. | ^^, ^,,,,^,j^ j,,^;^ defences to a jury. 
 
 1 Willde et al. V. Wetmore et al., 1 N. S. 1)., :m. 
 
 42. False-Costs of unsuccessful appllca> 
 
 cation to set aside picas as — Where there is an | 
 
 applicatiim to set aside i)leiis as fidse, and nth-' 4.?. False, frlVOlOUS, £C.— Affidavit in all* 
 
 davits in reply, alleging that the pleas are true, swer to application to set aside pleas al- 
 though the .ludge will discharge the rule, he 1 Allegation in defenilant's affidavit "that the 
 Mill in general direct the coats to be costs in the ! pleas are not false, frivolous and vexatious ami 
 j,ni,8L., , are not pleailed solely or principally for delay, " 
 
 Donohoe v. liotilin, '2 TUoni., '2',]3. f/ild,iAwi etlect in opposing motion to set 
 
 ' aside pleas under 4th H. S., c. 04, s. l.'W. 
 
 43. False, frivolous, Ac. To an action on ^.))(rt.'»v, whether tliat or the contrary allcgu- 
 a promissory note brought by the indorsee, tie- tion in plaintitT's atfidavit on such motions is 
 fendant pleaded on etjuilable grounds, that the necessary. 
 
 note had been made merely to enable the payee, | Pord v. lirovm, 2 R. & C, 408. 
 
 who had iiulorsed it to plaintiff, to raise money 
 
 on it, and the plea net out other circumstances 46. Frtlse, 4c. -Allegations Of fulslt) de- 
 connected with the note byway of e(iuitable de- nied by defendant— Where in an upplicati.m tn 
 fence, alleging that plaintiff had knowledge, set aside pleas as false the defcn.lant makes an 
 riaintiff, in his affidavit to set aside the plea, i affidavit, denying everything alleged in plauititf's 
 denied knowledge of the fact relied on, and de- 1 affidavit, on which the order to set aside the 
 fen.lant in reply asserted his belief that plaintiff pleas was granted, the Court caimot make the 
 
 had knowledge, and that plaintiff and said payee 
 had been very much mixed up with each other, 
 and "he considered it almost impossible, but 
 that plaintiff should have known the true history 
 of the note. 
 
 order absolute. 
 
 DuCaen v. />«»»*■, "2 Thom, 77. 
 
 47. False, frivolous, Ac. -Setting aside 
 
 pleas— Rides to set aside pleas will be <li* 
 
 Held, that the plea must be set aside, the j charged, and the matters in issue left to abide a 
 
 essential allegation of scienter being denied by ^ trial whenever, from the pleas filed and the facts 
 
 plaintiff, and that denial not controverted by '■ disclosed by the affidavits, it is not perfectly 
 
 the defendant. j clear that no legal defence exists. On the other 
 
 Kandick v. Arthur, 2 R. & V,., 367. , hand, pleas will be set aside whenever it is clear 
 
 j that in any possible view of unconlrortrtal facts 
 44. False, frivolous, &C. -Defendants, on I brought before the Court by the parties, the 
 the 8th October, 1868, indorsed a bill of exchange i plaintiff would be entitled to a verdict if the 
 drawn by S. S. on E. & Co., of Liverpool, Eng., \ case went to a jury. 
 
 thinking, but not stipulating, that it was to be . Sevihle, coats in a cause cannot be added to the 
 forwarde<l by the mail which closed on the same i amount claimed, for the purpose of bringing it 
 day. The drawer overheld the bill on that day, I up to the appealable amount, 
 and also on a following mail day, and, on theStli | numn et al. v. Rickardx, 1 N. S. D., 509, 
 
lOo:. 
 
 PLEADING. 
 
 lOOfi 
 
 4S. Falne, MvolouN, Ac. SeltlnK »»lde SI. Fahe, frivolouit nnd vexatious -Settlnic 
 
 plfn^ nit III an uctioii )iy tliu iiiilorMi't^n iiguiiiHt aaicle plea* rh -An aliiiliivit to Hut luiidii pleas 
 
 till' iiiilorHtT of a proiiiinHoiy nolo tlitj ilfft'iiilant hh falMi', fiivnliiiit, ami vrxaf imiH, iiuimI in j,'cni'r il 
 
 ])l(,iili'cl, trav«i'Hinj{ tlio allegation of prt-Honl- liir inailo hy tlio plaintiff iiiiUHcIf, ami niii»t nlaii' 
 
 ijiciii. 'I'lic nii'MHi'iigur of tliu liank that Ih'IiI tint /art.i Nlinwing that thu pluuR aru ho. 
 
 imic Hwort' that liu pt'UHcntuil it at tlefcmlant's An alllilavit niailo liy plaintiff's counsel, aw- 
 
 cilli.i' whtTc it was payalilu, liotwuen .'{ ami 4 taining a inert' gt-nrral Htatfint'iit that the pleas 
 
 ]i. Ml., when said olhce wan ehmeil. Defemlant are false, frivohm-s ami vexatiouH, as he has hfcii 
 
 litimil the preHentnicnt and denied that the informed hy tlie plaintiff, and verily lieli'neB, 
 
 (irtiie was closed, liut did not deny that he though uncontradicted hy any atlidavit on the 
 
 hail IpfCM informed of the presentment next part of defendant, is not suUicient. 
 
 li.iy. mill he did not deny or refer to the 
 
 fitiiti'inent of one of the plaintiffs that on his 
 
 nIhiw lug tiie defendant the notice fif dishonor I 
 
 the ilifeiidant had promiHed to give a good note pl^as -3rd R. S., c. 134, a. 71 -The word "fals.. 
 
 (iHiHon V, Kilty, I Old., 7-4. 
 
 52. Fahe, MvolouR, Jcc- Setting aside 
 
 in (iliice of the dishonori'd one, or else sujiply 
 pimls to the amount of it. The County Court 
 .(uil>,'e set aside the plea as false, .^'c, on the 
 
 in the 71st section of the Practice Act (Revised 
 .Statutes, .'Jrd series), is the f<uindation of a jur- 
 isdiction exercised liy the Court, njore extended 
 
 str.n>.'lli of the uncontradicted evidence of this •'>"" ""'.V authority to set aside jileas elainiod liy 
 pioimse. the .Superior Courts in Kngland, luit the Coiiit 
 
 Hi hi, on appeal, that the only question for ; <l" ""* "ssert or exercise a power to try a 
 tlie Cimrt under the pleadings was whether the fm^e thus summarily, or decide controverted 
 
 had heen actually presented, and thai facts. 
 
 '"'''■ 
 
 phiiiitifts could not 1.0 said to have estal.lished ''"''t' <""">■♦ '>''^''' '^ '"'fe'l't to reiiuire an explicit 
 
 the fai t of presentment as there was a contra- explanation of facts necessarily within the 
 
 ili^lj,,,,, defendant's knowledge on the pain of treating 
 
 EvauH ft a/, v. Fo^titr, \ R. & (i., (iO. his plea as fraudulently evasive or false. Fads 
 
 not so within his knowledge may he stated less 
 distinctly. In the latter case it m.vy he pro|)er 
 to admit statements of information and belief 
 which would 1)0 inadmi.ssil)le to substantiate a 
 fact before a jury, the powers of a Court or 
 Judge being not to establish a fact, but to 
 ascertain whether there is a fact to be tried. 
 The. liank of Xora Srotia v. Chipmnn <l at., 
 
 1 N. .S. a,.V.>l. 
 
 40. False, frivolous and vexatious -Setting 
 
 aside pleas as— I'leas which are only demurrable 
 caiinnt be set aside as false, frivolous and vex- 
 .itiiiiis, under Revised .Statutes, c. l.'J4, sec. 71. 
 
 .All application to set aside pleas under this 
 seLtiiin siioulil be made promptly. 
 
 In iipplieations of this kind the falsity of the 
 plras is always the main imjuiry. 
 
 Chipman v. Ritrhii', 1 Old., 710. 
 
 50. False, frivolous, &c. 
 
 53. False, h'lvolous, &c. — Setting aside 
 
 pleaa as— 3rd R. S., c. 134, a. 71— Under He- 
 vised Statutes (3rd series), c. l.'J4, s. 71, pleas 
 will be set aside when assailed on atlidavit, and 
 Setting aside I where thoy appear upon argument to be false. 
 
 pleas as— Plaintiff sued on a promissory note for j though a part of the pleas may lie sustained. 
 
 •*70.'.','), and defendant pleaded the usual pleas, 
 ilciiyiiig the making, consideration, &c. Plain- 
 tiff iipplied at Chambers to have the pleas set 
 asiilc as false, frivolous and vexatious, and, in 
 opposing the motion, defendant produced an 
 iffiilftvit in which he admitted indebtedness to 
 the amount of 84"2.7"2, but no more, and alleged 
 tiiat Ilia pleas were not pleaded for purpose of 
 ilelay, hut that justice might be done. The 
 Juilge at Chambers set the pleas aside, and 
 (lefcinlaiit appealed. 
 
 Hf^ld, that his appeal would be sustained, 
 provided the sum of !j42.72 was paid into Court 
 within ten days, otherwise plaintiff should retain 
 'lis jutlginent. 
 
 Hi/l V. Culman, S X. .S. D., 352. 
 
 The defendant (unless in exceptional cases) shoiilil 
 pay the cost of setting aside such pleas as are 
 false, leaving the cost of moving to set aside 
 such pleas as are sustained to abide the event. 
 Sfephen.ioii v. Col/ord ; Boi/iji v. lieumlt, 
 
 3 N. S. D., .'Vt. 
 
 54. False, fk'ivolous, &c. — Setting aside 
 
 pleas as false, &c.— Practice— Applies to fore 
 closure suits — NVhere on an application to set 
 aside pleas as false, frivolous and vexatious, 
 facts showing the pleas to be essentially false 
 are positively sworn to and are only partially, 
 but not directly and explicitly denied in the 
 affidavits on the other side the Court will set 
 the pleas aside. 
 
1007 
 
 PLKADING. 
 
 1008 
 
 Thnii«li 111! iitfi'lnvit t.i Nft a»i(lu |>U'imi an 
 fiilii*' niiiHt ill KfiKTiil be niiiiU' l>y tho iiliiintiH 
 hiniHi'lf, tliiH rulr .Imn ii..t iipjily wIh-it tlu-fiicm 
 im whicli tlie |)liiiiitiff iclifH arc in lli«' kiiowlfdgf 
 .if ihf attuiiify and ii"t nf the jilaiiitiff. 
 
 A mot inn to ml uhI.Ic faUu ami vi-xaliou* pli'ii* 
 .ipplii'H iM|iiiilly to a foiTcloHiin! aKtoa coiiiiiioii 
 law unit. ., -»i 1 .•...< 
 
 Oil npiital to Ihr Vriry Coiiwil, 
 Hi III, 'liat Hiicli orilerwan irri'>!iilar aiitl inuHt 
 !«■ M't aHJ.lc, tin- .Imlifial Coiimiittcf (without ik- 
 li.liiij? the mi'iits) Iwiii^ of njiiiiioii tliat, tlioiigii 
 I he pleas were iiicoiihiMtciit , mullifarioiiK aiul em- 
 hill niHMiiy, the Supieme Court waH liouiul l»y llie 
 pi.,vi»i..iiN of :h.l Kiv. StatH., e. 134, bh. 62* (13, 
 ill respect (if amemlineiil of pleailiii;{n. The wuit 
 was remitted haek to llie Court hehiw, with 
 iili.rty for the defendant to apply to amciiil his 
 pUuH, or ill default, that the plea« HJioilld be set 
 asiile. 
 
 Wallace v. McSinuny, L. H., 'i 1'. C., 180. 
 
 55. False reprcsenlatlons AHcgHtlons of 
 
 facts— Demurrer -I'laiiicitl'H fourth couiit wuk 
 MS followH: "That the bill of exchange and 
 [irniiiisHory notes* above declared upon were 
 discounted by the jdaintifTK, and the money 
 advanced to tlui deien.lant tiierefor was ho 
 advanced upon the representation of the said 
 r. (J. Ihnld.tlmt tlic said tiiiii of Wm. L. Dodge 
 .^s Co., the defendants, had assets to a large 
 ;imount over and above all their indebtedness 
 at the time said advances were made, and the 
 lilaiiitifTs say that in triitii and in fact the said 
 Will. L. Dodge ife (,'()., the defendants, had no 
 such assets, as the saiil T. (i. Uudd well knew, 
 and the said defendant obtained the discount and 
 advances ileelared upon by false and frivohius (•</.■) 
 
 representations and under false pretences. 
 
 llfhl, bad on demurrer, 1st, ;'i':cause it did not 
 .illege that Hudtl oi.taineil ti.u discount and 
 advances on the bill and note declared upon, 
 with intent to defraud tiie plaintiffs ; '2nd, be- 
 cause it did not allege tliat the debt had not j 
 been paid ; and 3rd, because it did not allege 
 the offence charged against or act committed by 
 Hudd to be contrary to the .Statute. 
 Banl{ of British North America v. Bwhl <t nl., 
 
 3N. S. D.,97. 
 
 56. Fraud must be pleaded -Replication 
 
 —In an action of ejectment defendant pleaded 
 an eiiuitable plea setting out certain deeds as 
 the links in his title. At the trial plaintiff 
 sought to attack one of the deeds on the ground 
 that it was without consideration and a fraud 
 on third parties. 
 
 //(/(/, llial plailililf ►hoiild liave uplieil 
 alleging the fraud, and not having no pleaded 
 could not adduce it in evidence. 
 
 Kiiiiinir V. I/iirriivii, '2 N. S. D., 'H. 
 
 57. Fraud must be pleaded Where a 
 
 verdict was found on tiie groiimi of fraud, Imt 
 there was no plea of fraiul on the record, Uiu 
 
 i (^lurt set the verdict aside, 
 
 I Unlesw fraud lie specially jileaded no evidence 
 can be given of it, 
 
 mil v. Aichlmlil, 1 Oid,,4.V.', 
 
 58. (Guarantee Aellon on Plea of per. 
 
 formanee of contract by principal Dcini.liim 
 gave pluintilf a guarantee for certain clcciits m 
 be given liy jdaiiititV to 1», d, M, To tiir |iliiiii- 
 tiff's declaration on a guarantee, dcf.iidaiil 
 pleadid, among other things, that D, .1, M. 
 fiiltilleil to (daintilf tiie contract for whidi difiii- 
 dant liecanie iiis suicty. 
 
 Ildil, that tiie defence set uji in tlic plci \\m 
 sutliciently pleaded, 
 
 Mchouiilil V, McDonald, '2 N. S. 1)., b'!(). 
 
 60. Guarantee Consideration Doniiirrer 
 
 —Action upon a sjiccial contiact in tlic nature 
 of a guarantee, alleging that defciidiuil ^avc ii 
 special iironiise, and made a sjacial iigKHiiiiil 
 to pay the plaintiff the amount iluc fmin oiiu 
 D. McI., the father of defendant. Iletiiidniil 
 demurred, because, among otiier groinids tlif 
 consideration for making «u' giving tlic spicial 
 promise or agreement was not set fortii in citlur 
 count of plaiiititrs declaration, 
 
 IltM, tliat there should be judgiiieiit im- du- 
 fendant upon the demurrer. 
 
 Cami'hill V. Mclsaac, 3 X. S, D., •Js:. 
 
 «0. lllghway-Plca of, not divisible The 
 
 plea of highway is not divisible, and nuist In' 
 made out as pleaded. 
 
 Ltury V. Saiinikrs ct at., 1 Ulil., IT. 
 
 j 61. InJunctlon-Not necessary to plead to 
 
 —An application to compel plaintiff to aiuciid a 
 writ of injunction iireveiiting the City of Hahfax 
 from filling up a dock on the north of pliiiiititl's 
 wharf, on the ground that plaintiff's claim was 
 
 I BO indefinite that it was impossible for tiie de- 
 fendant to plead to it, was discharged «it'i"iit 
 costs. 
 
 i Per Bliss, J.— I do not see that you arc com- 
 pelled to plead at all. 
 
 I do not see that a writ was necessary in this 
 case. The affidavits are in the nature of ii writ. 
 
 I Beamish v. City of Halifax, 2 Thoiii,, '2:21 ■ 
 
1009 
 
 PLEADING. 
 
 1010 
 
 tCJ. Inoolvent Art Suit for pcnnlty 
 
 llilil, iiimci't'HHary tuiilU'gi', in |»i'(K't't'(liiij{M foi' 
 
 II pt'iiulty tiinU'r Nt'ctioii Ih.' of tlio IiiMolvciit Act 
 I.I IM(i|), mill Ncotioii \'M\ (if lliu IiiMolvuiit Aut of 
 |h7,'i, that tlui ilrfi'iiiliiiit wiin iiiMdIvt'lit within 
 tliu naanintj of tlio Act. 
 
 Jlai-riiiiilon v. Withr, '2 K. iS: (',, :W'_». 
 
 M, Initohcncy Uefenre of d' harge In 
 
 Replication of fVaiul WIiltu t! o plaintillto 
 a jilca of iliNi'hai'gt', umli'i' ihu liiHolvi'iit Act of 
 Istil), ruplivil that tliu iliMcliargu ha<l liucii oli- 
 taiiK'il liy fiauil, 
 
 Hi'il, tliat the rt'|ilication wiih gooil, and that 
 tlic .liicl^.'!' who tiicil the cansu hail niimliii'ctcil 
 til*' jury in instructing thoni that the (|iR'Mtion 
 (pf fraiiil was only for the (.'onit that contirnieil 
 ihc iliscliaigis anil coiilil not he lirought np 
 vxcipl lpy a|ip('al. 
 
 do'lUu V. Hurl,, I K. it ('., 201. 
 
 (14. Insolvcnc) Plea uf dlttcharKc In In- 
 
 Bolvency— Replication necesHary to raise queH- 
 tion of defect in Huheduling- -To an action on 
 n proniissoiy note, ilefeiidiint j)k'aile(l iii/i r tih'd 
 a iliscliarge nnder the Insolvent Act of |H7,'). 
 
 III the Kcheilnleof lialiilitieH a delit due plaintifl's 
 was net out " W. A. \. aliout .'j'TiiCt." 
 
 Hi III, that this was a sutlicient compliance 
 witli the Statute, hut that if otiieiwise the de- 
 fi'cl in the Huliudule Hhould have lieen made the 
 )<iilij('('t of a replication which in this case had 
 ii(pt liceii pleaded. 
 
 NmiJ}}.t It (U. V. Mnskrl/, 7 R. & ()., ')47. j 
 
 0.1. Insolvency -What sufficient to put In 
 
 issue question whether aaaignee a trader - 1 leu 
 tliat ))liiiiititl' was not assignee as alleged hold to 
 put in issue the (piiistion whether assignor was 
 11 trailer who could assign under the Insolvent 
 Act. 
 
 Crfifihtoii V. Chit/irk ft ti/., '2 R. & <;., JM» ; 
 
 1 C. L. T., .-.08. 
 Attirined on appeal to the Supreme Court of 
 Canada. 
 
 7 S. C. R., 348; 
 2V. L. T.,'-'48. 
 
 66. Insurance— Plea of over-valuation In 
 
 proof of loss— Under conditions in a policy of 
 tire insurance for S'400 requiring that in claini- 
 iiig for a loss the whole actual cash value of the 
 property insured should be declared, and provid- 
 ing that any fraud or false swearing should viti- 
 iite the claim, defendants pleaded that plaintifls 
 ilelivered a false and fraudulent account of the 
 ftlleged loss, and that plaintiffs had declared the 
 building destroyed to be worth lJ600 to induce 
 
 the ilefendantH to pay him 9-t()(), whereaM the 
 linilding wiin not of that value and plaintitf had 
 not Hutferi'd damage to that extent, uh the in- 
 Miu'cd well knew. 
 
 /li/il, that the defence was Miitfii'iently 
 pleaded. 
 (/nttoiiiiiiay it ul. v. Sorrrtiiin Fin I in, t'i>., 
 
 :« I!. A (i., .s:«4. 
 
 07. Issue Joined on Insufficient defence - 
 
 Repleader awarded 'I'lu^ plaint itf took issue 
 u)ion a plea which was held todiNclosu a defenie 
 iiiHutlicient in Hubstance. Verdict for defendiuit 
 Hut aside, and a repleader awarded. 
 
 Milaiicnii v. ( Vk/kkh, .lames, :{7.'J. 
 
 08. Joinder of counts 3rd K. S., c. 134, 
 
 8. 110 Pleading - Section 111), chapter l.'M, 
 Revised .Statutes (.'Jrd series), in reference to 
 joinder of different ca\iseH of action in the same 
 suit, applies only to civil suits, and not to pro- 
 ceedings of a mixed civil and criminal nature. 
 Hank of H. X. A. v. limldit a'., 
 
 •.\ X. ,S. 1)., !I7. 
 
 OU. Judgment -Action on Husband of 
 
 wife against whom ju ".'Tient before her mar- 
 riage—Like other defendants cannot plead 
 matter of defence to original action— To an 
 action on a judgment the defendant cannot (ilead 
 any fact which might have been pleaded as an an- 
 swer to the original action. Where a party lias 
 obtained a judgment against another, he may 
 proceed upon it at ccmnnon law, and is not com- 
 pelled to proceed by writ of revivor. The 
 husband of one of several parties against whom 
 a judgment lias been forinei'ly obtained, stands 
 in no better position than the other defendants, 
 and cannot plead matter of defence to the judg- 
 ment that was available in the original action. 
 Ikujnmin v. Cnmplx-.ll e.l ah, '2 N. S. I>., .'Wtl. 
 
 70. Jud^^mcnt reversed where Issues on 
 
 which given was not raised by the pleadings 
 —The defendant .Society, a company doing life 
 insurance business, was sued by plaintiff, as 
 widow of .J. R. L. W., to recover an amount 
 payable to her under a bond of niembership 
 issued to the deceased in his life time. 
 
 The main defences raised were concealment, 
 an error in the statement of the date of birth of 
 the deceased, misrepresentation as to the nature 
 and severity of an attack of apoplexy by which 
 he had been seized, and the date of its occur- 
 rence. At the trial, judgment was given in 
 favor of the defendant on the sole ground that 
 the attack in question was proved to have 
 occurred four years before the date of appliea- 
 
1011 
 
 PLEADING. 
 
 1012 
 
 tioii, ami not five years, as represented, the ' 
 medical testimony allowing that the greater tiie 
 lengtli of time elapsing after such an attack, tiiu 
 less likelihood tliere would he of its recurrence. 
 
 On appeal, the judgment below was reversed, 
 and jiulgnient ordered to he entered fr)r plaintiff ; 
 with costs of tlie appeal and of the trial l)elow, 
 on the ground that tiie issue on which judgment 
 was given for tiic defendant was not raised hy 
 the pleadings, aiul that the other issues were 
 properly found in favor of plaintiff. 
 
 Tlie defence also set uj) an express condition 
 of the bond of membcrsliip on wliich tlie action 
 was brought, that the bond should be null and 
 void if any of tlie answers in tiie application 
 sliould be untrue or evasive, or if the applicant 
 should conceal any facts. 
 
 'I'iiere was no such warranty in the bond, but 
 the application contained a condition to that 
 effect. 
 
 Quaere, whether this was not a variance. 
 
 Wehs/cr it a/, v. The Mulunl Rdii/ Sori'i /}/, 
 20 N. S. R., (8 R. & O.), Ml. 
 
 11. Jurisdiction— Plea to -Agency— Plain- 
 tiff brought an action against the defendant for 
 the price of a horse, and the declaration contained 
 also the common counts. It appeared that the 
 liorse liad been sold, not to defendant, but to a 
 tiiird [larty, from whom defendant received §(5.5, 
 to be paid to the plaintiff. Ho paid only 1S!52, 
 used tlie balance of SI.'? for his own purposes, 
 and told plaintift'he would give him the balance. 
 He afterwards claimed a set-off against plaintiff, 
 of which there was no plea. 
 
 Hehl, that in the ab.sence of a plea to the 
 jurisdiction as recjuired by the County Court 
 Act, plaintiff was entitled to recover the .SI,"? 
 under the money coinits, and that the judgment 
 for defendant should be reversed. 
 
 McDonald, J., diMtnliiui. 
 
 Sharp V. Maxner, 3 R. & (i., 105. 
 
 72. Jus tertii — Defendant can set up, 
 
 where plaintiff out of possession, under plea 
 denying plaintiff's property— In an action of 
 trover for quartz, &c., defendant pleaded, deny- 
 ing plaintiff's property in the goods, and gave 
 evidence that the property had been seized under 
 execution against the plaintiff, and sold to a 
 third party. The plaintiff at the time of the \ 
 alleged conversion was out of possession. i 
 
 Held, that as the plaintiff was out of posses- \ 
 sion, defendant could set up the ^'im tertii under ' 
 a plea denying the plaintiflF's property. j 
 
 Campbell v, Yeadoii, 5 R. & G.. 212. ! 
 
 73. Justification, pleas of- Pleas of Jus- 
 
 tification under authority of the Crown sus- [ 
 
 tained. Decision in Knt,ii.i v. A'o<.< (1 R. & (;., 
 16.')), sustained. 
 
 Wallace et al. v. //oi-s 2 R. & C, 10(1. 
 
 74. Justification- Police officer may give 
 
 evidence to show, without pleading specially 
 — Two assaults— Plaintiff cannot waive one — 
 The plaintiff having been arrested on view, and 
 imprisoned by defendant, a police constable, iunl 
 his superior otlicer brought an action of trespass 
 against the former and recovered a verdirt. 
 The dcclaralioti contained only one count fur 
 an assault and false imprisonment, while twi> 
 distinct assaults were proved at the trial, tliu 
 second being the one connected with tlie 
 imprisonment ileclared on. 
 
 Held, that this was a fatal objection, liiu 
 plaintiff not being at liberty to waive the asisaiill 
 first proved, and give evidence of another. Uiidtr 
 Dom. Stats., 32 and Xi Vic, c. 29, s. 132, tlie 
 defenilant being a subordinate police officer, may 
 give evidence to show a justification under tin; 
 command of a superior officer without plcadini,' 
 such justification specially. 
 
 Peppy v. Grono, 1 R. & C, .SI. 
 
 75. leave to reply refused— Appeal -Tlie 
 
 County Court Judge refused to allow plaintitl, 
 after the expiration of thirty days from the tiling 
 of defendant's plea of payment into court, to 
 reply that the amount paid was insutficiuiit. 
 Defendant appealed under the County Coiiit 
 Amend' lent Act of 1877. 
 
 Held, that the rule had been wrongly refustil, 
 and further, that as the refusal to allow a rcjili- 
 cation was decisive against the plaintift"'H claim, 
 and therefore a final judgment, it could be ap- 
 pealed from. 
 
 The provisions of the County Court Act of 
 1877, as to appeal, supersede altogether those 
 of 1874. 
 
 McCahe v. McKay, 3 R. & C, s.t. 
 
 76. Libel-It is sufficient to specify tbe 
 
 defamatory sense of libellous words in the form 
 of an innuendo, without other averments. 
 
 Hoherln V. Patillo, James. 'MVi. 
 
 77. libel- Averments — Innuendoes — In 
 
 an action for libel, the third count of the deilai- 
 ation alleged that the defendant falsely ami 
 maliciously published of the plaintiff, in relation 
 to his calling as a minister of the gospel, tlie 
 words following: "Notice. — All persons who 
 have at any time paid Mr. William Bowers 
 (meaning the plaintiff), formerly of the Lutheran 
 Church in Nova Scotia " (meaning that plaiiitifl 
 at the time of such publication was falsely pie 
 
1013 
 
 PLEADING. 
 
 1014 
 
 tending to ho a LutluTiin Minister in Xova 
 Scotiii) "(iny money for funeral services, will 
 cont'er a great favor npon the piihlic generally 
 hy handing in tlieir names to the editor of this 
 papt'i- as early as they jxjssihly can, and before 
 the close of the first week in Octoher next." 
 
 ILUl, on demurrer, that the count as contain- 
 ing proper averments and innuendoes was good. 
 Boiri'TH V. HuH'hinson, 1 Old., 070. 
 
 78. Libel — Innuendoes — Justiflcatlon - 
 
 Dcfi-ndiint admitted pulilication f)f an alleged 
 liht'l, and denied that the alleged defamatory 
 matter was ]>u))lishei1 of and concerning the 
 plaintiff with the sense set out in the iiinuendo, 
 
 //'/'/, that it was the duty of tiie .ludge to 
 tell the jury whether the words used were 
 capable of the construction put on them by 
 plaintiff, and to leave it to the jury whetlier the 
 words were in fact used witli such meaning. 
 
 Held, further, that under the plea in which 
 defi'iidant justified the ])ublication as a legiti- 
 mate criticism, the .Tu<lge should liave told tiie 
 jury wliether or not the occasion created a priv- 
 ilege, and if so, should have left it to the jury 
 to siiy whether the defendant was actuated by 
 malice in fact, wiiicli, if it existed, destroyed 
 his ])iivilege. 
 
 liny v. Corhtil, 4 R. kV.., 4(»7. 
 
 79. Municipal corporation — Action for 
 
 negligence — Defence that the defective bridge 
 which occasioned accident is on highway must 
 be pleaded— VHnoe, whether a defence at all- 
 Plaintiff while crossing, on horseback, a Initige 
 witliin the municipality, received injuries found 
 to have resulted frf)m the negligence of the cor- 
 poration and its officers. 
 
 Hi Id, that the defendant corporation was! 
 lialik ; that the fact of the bridge being on a I 
 highway was no defence, or if a <lefence should \ 
 have been pleaded ; and that no notice of action ] 
 was necessary. I 
 
 Mcijuarrie v. The MunkijHility o/Sf. ^fu)^l/'■■t, : 
 
 5 R. &0., 41):J. 
 
 SO. Name of parties — Identity — Plain- 
 tiffs' declaration contained a count upon a guar- 
 antt'c to a firm given by defendant, and on the' 
 faith of w.iich goods were alleged to have been 
 supplied to the person therein nameil. Defend- ' 
 ant demurred to the count, and it was adjudged 
 bad l)ecause it did not thereby appear that the 
 plaintiffs were the persons who composed the 
 firm when the goods were supplied under the 
 guarantee. 
 
 Xeal et al. v. Henry, 2 N. S. 1)., 46. 
 
 81. Name of parties Party served same 
 
 name as dufendant—If the party who has been 
 served witii process and appeared to defend the 
 action bears the same name as the partj- proved 
 to be liable, the plaintiff is entitled to a venlict 
 unless the party so served, Ac, shows that he is 
 not the proper defendant. 
 
 Thayr v. Vaiirf, '2 'J'lioni., 'JtiO. 
 
 82. \on-Joinder of party as delendant— 
 
 Objection must be taken by plea in abatement 
 — Action was brougiit on a joint and several 
 promissory note made by four promissors, one 
 of wiiom was dead. The action was brought 
 against the three survivors, the declaration set- 
 ting out the note as made by the three defend- 
 ants, naming them, "together with one John 
 Xass," the deceased promi-^^sor, but it di ( not 
 add that he was dead, or show any ;c.-..m why 
 he had not been made a defcu'l.^.n,. A verdict 
 was taken for plaintiff by consent, and a rule to 
 set it aside. 
 
 H'ld, that the objcctioii was one that should 
 iiave been taken by plea in abatement, and could 
 not l)e made a ground of objection to the ver- 
 dict for plaintifV. 
 
 McKeen v. .Vavf, 3 R. & C, 2m. 
 
 83. \on -Joinder of party as defendant 
 
 Objection need not be taken by plea in 
 abatement or raised by demurrer — Wheie 
 ])laintiff sued two out of three makers of a joint 
 and several promissory note, alleging the making 
 by the third, Imt not alleging that he was out of 
 the jurisdiction of the Court, 
 
 //i Id, that this was a fatal ol)jection to plain- 
 tiff's declaration, and that it did not re<iuire to 
 be pleaded in abatement or raised by demurrer. 
 Russell V. Grant et al., 2 R. & C, 409. 
 
 84. \on-Joinder of party defendant-Pica 
 
 in abatement — Pleading— Where one of several 
 
 trustees was sued alone, and there was no plea 
 
 in abatement. 
 
 Held, that an objection taken at the argument 
 
 to the non- joinder of the co-trustees couM not 
 
 avail. 
 
 Zwicker v. Ziuk, 2 N. S. 1)., 2!) I. 
 
 85. Non>Joinder — Plea In abatement — 
 
 The tenant in dower of wihlerness land having, 
 witli the consent of C. R., one of the reversion- 
 ers, sold all the hardwood timl)er growing upon 
 the land to \V. H. H., and allowed the same to 
 be removed by the purchaser, contracted a 
 second marriage with C. S. After the death of 
 C. R., plaintiffs, as reversioners, without joining 
 the heirs of C. R. brought an action of waste 
 
lOli 
 
 PLEADING. 
 
 101(> 
 
 agi'iinst the toiiant in lUiwer, C. S., Iter Iiusbaiid, ' 
 unci \V. H. H. tlie purchaser, claiming damages j 
 f(ir the injury to the land l)y the removal of tlie ] 
 timber. Tlie .Judge who tried the cause having i 
 non-suited the {ilaintitFs, and a rule having been i 
 taken to set tiie same aside, I 
 
 III Id, (1) tiiat all the persons entitled as | 
 reveisioners, should have been joined as co- 
 plaintiffs, but, as non-joinder can only be taken j 
 advantage of by jdea in abatement, and no such 
 j)lcii was ])leaded, the non-suit, if ordered xol'lii | 
 on tiiat ground, could not liave been sustained. 
 TituM (I a/. V. SuHh ft aL, .S N. S. 1)., 497. 
 
 86. Xon-Jolnder— Suit by two out or three 
 
 obligees — No allegation of the death of the 
 third— A bond was made to three obligees, one i 
 of wliom had died before tlie action, whicli was ! 
 brought by tlie surviving ol)ligees, antl tlie 
 executrix of the deceased oliligee. At the trial ( 
 jjlaiiitifTs' counsel obtained leave to strike out 
 the name of the executrix. Tliere was noallega- 
 tifiii in the writ of tlie death of one of tiie i 
 obligees, but evidence of the fact was given at 
 tlio trial. 
 
 Hi /(I, that the omission in the writ was fatal, 
 
 and tliat the verdict, by consent for plaintiffs, 
 
 must be set aside. ■ 
 
 Jilai-k (.1 (tl. V. Bai-Ks, .S R. & <i., .S,") ; 
 
 2C. L. T.,60.S. 
 
 S!. Notice of non-acceptance— Demurrer 
 
 for failure to allege— I'laiiititfs, as indorsees, 
 sued defendant as drawer of a foreign bill, al- \ 
 IcL'ing tiiat the bill was iluly presented for ac- , 
 cciitance and clisiioiiored, and defendant had 
 not any effects in the liands of tiie drawees, nor \ 
 any reasonable ground for expecting that he 
 would have, or tliat the bill would be honored, j 
 and tiiat defendant had sustained no damage by 
 reason of having no notice of the non-acceptance, ■ 
 Defendant demurred on the ground that plaintiff 
 was bound to give notice to defendant of non- 
 acceptance, or hold the bill till due and again \ 
 present it for payment before suing, and to 
 allege accordingly. Demurrer overruled. 
 
 S'ayntr tt al. v. Hoira/f, 3 R. & (J., 267. \ 
 
 8S. Nunquam Indebitatus— What put in 
 
 issue by — Defendants, in an action on a policy 
 of insurance, pleaded with fifteen other pleas 
 iiiinqiinm iiKtiKita/ni, and two pleas alleging ! 
 tliat tiie action had not been brought within six ; 
 months as re(|uired by a condition in the 
 policy ; but there was no plea denying the mak- 
 ing of the policy. Plaintiff, relying on the 
 want of a plea traversing the making of the 
 
 policy, did not put it in proof, and defendants 
 failed to produce it, to jirove the condition. 
 
 //till, tiiat the ])laintitf could not be put to 
 the proof of the policy by tlie plea of numiuum 
 iiidehi/alu-1, but that, under such plea, though 
 perhaps demurrable, the defendants might liave 
 given evidence of the alleged condition liad tiiey 
 been in a position to do so. 
 
 (^huiin, whetlier tlie plea of minquam iiidild- 
 /a/us was not bad. 
 liarn// v. I<ola/id liixk Ins. Co., 1 R. & (i., •21.->. 
 
 80. Discovery of new defence after picas 
 
 pleaded — Defendant pleaded to an actimi 
 brought against him as maker of a promissoiy 
 note, and an applicaticm was made to set aside 
 liis pleas. Defendant subsequently becunie 
 aware of tlie existence of evidence whicli would 
 show payment of the note sued on by the payee, 
 and ajiplied on affidavit to the learned .Judge, 
 before whom the motion to set aside his picas 
 was heard, for leave to examine a witness (Hi 
 this point. The aiiplication was refused, and 
 the pleas were set aside. 
 
 On a]>)ieal, an onler was granted for the 
 examination of the witness, and the evidence 
 when taken going to prf)ve payment of the mite 
 sued on, as stated, the order setting aside the 
 pleas was discharged ami the cause sent to trial. 
 Costs to abide the event. 
 
 Mirchanls Hank v. JJcWo/f, G R. & (i., 'JS8 ; 
 
 6 C. L. T., 452. 
 
 90. Payment into court-EITect of-Pay- 
 
 ment into Court does not admit the full claim of 
 plaintiff, but only the liability of defendant to 
 the amount so paiil in, and if the plaintiff would 
 recover beyoml that amount he must prove that 
 he is entitled to do so. 
 
 nodije v. ir. ,t- A. li. Co., 2 X. S. 1)., "137. 
 
 91. Pay ment -Plea of-A plea of payment 
 
 does not admit the plaintiffs claim, as set out in 
 the particulars indorsed on the writ. 
 
 Muli'aly v. JJUloit, 2 Thoni., 420, 
 
 92. Payment-Plea of-When the plain- 
 tiff, in his particulars, omitted to give defendant 
 credit for a payment, and thus claimed a larger 
 balance than was actually due, the defendant is 
 not justified in putting in a plea of payment, 
 without, at the same time, confessing the amount 
 he admits to be due. 
 
 Chipni'in v. Shaw, 2 Thorn., 428. 
 
 93. Payment Into court— Wlthdrawing- 
 
 The Court may allow a plea of payment into 
 Court to be withdrawn when pleaded under 
 
1017 
 
 PLEADING. 
 
 lOl.S 
 
 inisiako. In granting a rule to witluliiiw a 
 
 pU'iiiling, tlie <"(>uit may inipo.su ioa!sonal>le 
 
 ti.'rnis. 
 
 MrKny v. Ilumiltnii, .lanics, I'l.S. 
 
 04. Payment, plea of— Accord and satis- 
 faction not sufficient to support — I'laintiti' 
 lii'Dnght action for §84.33 for work done, itc, 
 fill- defendant, to which <lefendant pleaded pay- 
 iii<:iit after action hrougiit. It appealed in proof 
 that wtiile phiintifV was in prison on a ciiarge, tiie 
 nature of whicli was not disclosed, defendant 
 iililained from iiim a written acknowledgment as 
 fi)!lo\vs: "This day I have settled all matters 
 of account and the suits brought against me by 
 Joliu McCabe, for §84.33." (.Sgd.) " V. H. Mc- 
 Nutt." The signing of this was followed by 
 the payment of fifty cents by the defendant to 
 plaintitf, wliicii the Cou'ity Court Judge held to 
 he sutKcient under the plea. Yet he gave the 
 plaintilf judgment for ten cents to enable him to 
 tax sunnnary costs. The Court set the judgment 
 aside and remitted the case to the County Court. 
 
 /'<)• Ritchie, K. J.— 
 
 I do not think the defendant can possibly 
 succeed under a plea of payment. It is only a 
 payment of a part and seeina to bo rather a case 
 of accord and .satisfaction. 
 
 JAcAVC V. MrCahf, 2 R. A: (i., T,-?.. 
 
 95. Particulars— Sufficiency of— 
 
 Held, objection iiaving been taken to tlie 
 Kutliciency of plaintiff's particulars, that the 
 verdict could be sustained under the item, "To 
 amount due plaintiff from defendant for work 
 and labor, and under the common counts, 
 
 Traay v. Youii;/, o R. & (!., 381. 
 AtBrmed on appeal to the Supreme Court of 
 
 Canada, 17lh Fihruary, 1SS5. 
 
 Cas. Digest, 8"2. 
 
 96. Perpetuating testimony — Sufficiency 
 
 of bill— Plaintiffs alleged in their bill that one 
 of the defendants accepted and executed a lease 
 fur fourteen years, determinable on six months' 
 iiiitii.e, that notice was given, but the period 
 hiul not expired ; that said defendant intended 
 to coiitest the right of the plaintiffs, and set up 
 a title in the other defendant to defeat the plain- 
 tiffs ; and while this litigation was threatened 
 no action could at present be brought, and that 
 the evidence of a certain witness would be 
 ncuessary and material to enable them to estab- 
 lish tills claim ; that he was aged and about to 
 leave the Province, and though they could 
 ♦ilitain his evidence now, they might not be able 
 to do so at the time of an action hereafter 
 Itrought. 
 
 //('/'/, that sufficient had been set out to sus- 
 tain plaintitVs' bill to perj)etuate testimony, and 
 the bill was iu)t demurrable. 
 
 Sleil Co. Caiiaila, ( l.lil. ) v. I'atiri'. vj ((/, , 
 
 R. K. 1)., 4-.'s. 
 
 97. Pleading before expiration of time 
 
 for — Trial — A defendant pleading before the 
 expiration of the period allowed by law will not 
 entitle jdaintitf to place the cause on the trial 
 docket within the period allowed the defendant 
 ti'j plead, 
 
 Hutrhinion v. Wilham, .lames, 387. 
 
 98. Pleadings — Refusal of non-suit — 
 
 Judgment for want of prosecution set aside 
 — Cause sent back for new trial— Amendment 
 of record— Costs — In an action by plaintiffs 
 against defendant, as surviving covenantcjr, for 
 rent due on a lease, defeiulant pleaded a plea 
 which was a substantial admission of plaintiffs' 
 case. At the trial, plaintiffs' counsel took the 
 ground that, on the pleadings, defendant should 
 begin and rested. Defendant's coun.sel refused 
 to go f)n and moved for a non-suit. Plaintitl's' 
 counsel having refused to liecome non-suit, tiic 
 learned .fudge reserved judgment, and sid)se- 
 <iuently gave judgment in favor of defendant 
 for want of prosecution. 
 
 //*/'/, that the judgment could not be sus- 
 tained. 
 
 The pleadings were struck out and the cau.se 
 sent back for a new trial, but inasmuch as the 
 Court were of opinion lliat plaintiti's' coun.sel 
 should have moved to amend the record, witiiout 
 costs. 
 
 Vifktnj t> al. v. Prire, 7 R. & C, r)13 ; 
 
 8 C. L. T.,(il. 
 
 99. Plea "not Indebted as alleged" Ir- 
 regular — A plea that "the defendant is not 
 indebted as alleged " is irregular under the new 
 
 ' Practice Act which ie(iuires the particular de- 
 fence on which a party relies to be pleaded. 
 j liroii'H V. Wallaci:, James, 'J04. 
 
 100. Plea of documentary title-Proof of 
 
 possessory title — Defendants, at the argument, 
 relied on a title by possession, but their plead- 
 ings set up only a documentary title, and the 
 evidence of title by possession was not submit- 
 ted to the jury. 
 
 Held, that the verdict for defendant could not 
 be sustained by showing that, under the evi- 
 dence, defendant had acquired title by posses- 
 sion. 
 
 Emiit V. IVatermav, 4 R. & (;., •2,~'>, 
 
1019 
 
 PLEADIiNG. 
 
 1020 
 
 101. Plea of IndorHcment- Replication to 
 
 —Tender df " balam-e due " held bad — A bill 
 (if I'xcliiiiigi- (liiiwii liy tlie Aniiifist IJoot I'c Shoe 
 <'<). (Ill the liiiii (if I), it Co. WHS iiulorst'il " I'liy 
 to tilt; onk'i' of tlir Bunk of \ova Scotia, 
 Ainliurst," and by the agent of the Hank at 
 Amherst " Pay to tlie order of the Hank of Nova 
 Scotia, Halifax, for collection." The bill was 
 acccjitcil by 1). it Co., but was not jtaiil, aiul was 
 n'tunu'il to Ainheist. While the bill was still 
 in the hands of the agency of the bank there it 
 was purcliased by defendant antl was handed 
 over to him, but without any indorsement being 
 made other tiian tliose already on the liill. De- 
 fendant being sued by jdaintitf as assignee of 
 l>. & Co., wlio had become insolvent, for a bal- 
 ance of account due that (inn, pleaded the bill 
 by way of set-otl' ami tendered an amount as the 
 balance due the estate of 1>. & Co. 
 
 As to tlie plea of set-ofl' plaintitf joined issue 
 without replying specially. 
 
 HM, per McDonald, Smith and Weatherhe, 
 J.T. — That the bill having been specially indorsed 
 to the bank could not be transferred to the de- 
 fendant except by indorsement. 
 
 Per McDonald, C. J., and Ritchie, J. — That 
 if plaintiff wished to deny the indorsement he 
 should have replied specially, and that by merely 
 joining issue he could not put defendant to proof 
 of tlie indorsement. 
 
 Pfr Smith, Weatherbe and Ritchie, JJ., 
 McDonald, C. J., concurring, that the tender 
 made by defendant was bad. 
 
 Forsyth V. Lanruirc, 7 R. & G., 148 ; 
 7 C. L. T., 174. 
 
 102. Plea of nul tiel record— Production 
 
 under tlie Statute," was not suiiieient pniof of 
 tlie <leclarati(m. 
 
 It being admitted tiiat no execution had ever 
 been issueil. 
 
 Jfil'l, <i/x>, tliat if defendants could avail 
 themselves of that defence, plaintiffs could iidt 
 recover ; but that the defence was not available, 
 not having been plcade.i. 
 
 McdiK a id, V. Ptrk'uK <t a/., 20 N. S. K., 
 
 (8R. &(i.), l.-)4: 
 S C. L. T., .ST.-,. 
 
 103. Plea or payment— A part payment 
 
 does not support a plea of payment and .satis- 
 faction. 
 
 Boudrot V. Donomn, 2Thoin., 78. 
 
 104. Plea of release of action -Novation 
 
 —A general plea of release of action is Lad, if 
 the release is not pleaded as being made under 
 seal. 
 
 A plea setting forth an agreement between 
 plaintiflF and defendants, that plaiiitilF sliuuld 
 accejit third parties, as paymasters, for the 
 amount of his chiini against defendants, that said 
 third parties agreed to pay the same to plaiiitifl', 
 and that plaintiff accepted the said third par- 
 ties and released defendants, is good. 
 
 Cozem V. Witr a uL, I Old., lL'3. 
 
 105. Plea of right of way— Denial that 
 
 party claiming is entitled to, sufficiently puts 
 in issue the claim — In order to actniirc a right 
 of way by enjoyment for twenty years, it must 
 be proved that the claimant has enjoyed it for 
 the full period retjuired, nx ofriijhl, and if there 
 lias lieen unity of possession for all or any part 
 
 of bail-piece is not a sufficient answer to a plea i of that time the claimant will not have enjoyed, 
 of nul tiel record — In an action on an alleged «< of r'njhl the easement, but the soil itself. A 
 recognizance of bail, set out in jdaiiitiffs" dcclara- ! defence on this ground to a claim of right of way 
 tion as entered into by the defendants to resjjond I is sulhciently put in issue by a plea that the 
 a judgment to be finally given on a rule nixi, I claimant is not entitled to such right of way, as 
 
 taken under the .Statute under the former prac- j alleged 
 tice, the defendants admitted the making of the 
 bail-piece, which was signed by them before R, 
 J. U., as Commissioner, admitted to be such, 
 who also took their affidavits of justiucation, 
 and, being I'rothonotary, had them tiled with 
 the bail-piece, but tlie recognizance was not re- 
 duced to writing, nor did it appear upon any 
 record of the Court. 
 
 Defeiulants pleaded, among other tilings, that 
 there was no record of the alleged recognizance 
 of bail remaining in the Court as it was set out 
 in the plaintiffs' declaration. 
 
 JIM, that the production of the bail-piece 
 alone, worded " to respond the judgment to be 
 
 Smith v. McDonald, '.i R. iV. C, L'83. 
 
 106. Plea of tender- Statutory plea of 
 
 payment into court — Distinction — I'laintiff 
 claimed in his writ .^100. Defendant pleaded a 
 tender of .SJ8.'23 in the usual form, alleging that 
 it Mas sufficient. I'laintiff replied, denying the 
 tender, denying that the amount was sutlicient 
 and denying that plaintitf was always ready, 
 alleging a demand and refusal of the aninuut. 
 No evidence was given that the money had been 
 paid into Court, though it was so alleged in the 
 plea. The Judge of the County Court found 
 that .?58.'23 was due and that the tender was not 
 
 finally given herein on a rule m'n for a new trial { good, not having been made to a person autiio- 
 
1021 
 
 PLEADINCf. 
 
 1022 
 
 n/ii\ to I'l'L'i'ive it. lK'feii<liiiit ai)pi'iik'il on tlic 
 ^'iiiiiiid that the pliiiiititF hiiviiig dfiiit'il that tliu 
 {iijioiiiit |iai(l ill was siitlicit'iit, am) tiiu ilmlge 
 having found tliat it \va», tliu jutlgnient slunild 
 iiiivi' liirii for tlif defendant. 
 
 //■/(/, that tlie j)lca was properly treated as a 
 plea of tender, and the Judge having found that 
 no valid tender was made judgment was prop- 
 erly given for the plaintitT and the appeal must 
 lie dismissed with eosts. 
 
 Oiiimm V. Tdijlor, W H. AC, 158. 
 
 111. Possession or land Defendants 
 
 pleaileil 1st " tiiat the land is not the land of 
 the plaintili's" and L'nd "that the land is the 
 land of the defendant.'' I'laintitl's gave no proof 
 of possession of the land in ipiestion. 
 
 JIi III, that under the jileadings there being no 
 plea expressly denying plaintifl's' possession, the 
 plriintiffs were relieved of the burthen of proving 
 possession. 
 
 Church W'arih 11" of Fnhnoiilh v. Vawjhau, 
 
 •_>H. & (•.,4:tii. 
 
 lOt. Plea offender without payment Into 
 
 Court— I'laintitr sued for damages for the un- 
 liiwful detention of eertain lundier ; defendant 
 pleaded a lien for wharfage and plaintitT replied 
 a ten<ler of an amount sutlieient to eover the 
 defendant's elaim. 
 
 It was contended th.it the latter plea wns 
 iiisiitlieient, as there was no payment into eourt 
 to satisfy the debt in respeet of which the lien 
 was claimed, 
 
 //(/(/, that the lien was discharged by the 
 tender. 
 
 JJat-inon V. Mulcahy, 7 K. & (t., 209 ; 
 7 C. L. T., 3'-'4. 
 
 108. Pleas In bar— Pleas in abatement- 
 Verification — Defendants having pleaded, that, 
 although plaintiffs formerly possessed a corpo- 
 niie existence and character, they had lost that 
 cliaracter and existence before the connnence- 
 meut of the action, plaintitTs obtained a rule ' 
 ui-it to set aside these pleas as being unverilied 
 pleas in abatement, and iniprojierly pleaded, 
 but the Judge at Chambers discharged the rule. 
 Fniui this onler the plaintiffs appealed. 
 
 Hi III, that the pleas were not in abatement, 
 hut in substance and effect pleas in bar. 
 Atho/c Loili/i- of Fr< imayoii", Halifax, 
 
 V. IVilliamson tt uL, 1 X. .S. I)., 171. 
 
 109. Pleas, subscribing -Appearance In 
 
 person — When pleas were pleaded by defendant 
 in person, and the pleas tiled were subscrilied, 
 but the ones served were not. 
 
 Hi Id, thougli an irregularity, it did not make 
 the pleas a nullity and entitle plaintiff to judg- 
 ment by default. Notice of appearance not 
 necessary when a party apjiears in jierson. 
 
 C)-os'<klll v. Allison, 'J Thorn., "288. 
 
 110. Plea that defendant after tbe cause 
 
 'if action accrued, being a trader, became insol- 
 vent within the meaning of the Insolvent Act of 
 IWill, and made an assignment under the Act. 
 
 HM, bad on clemurrer. 
 
 McCully J., ilixsi iitinij. 
 
 Murray tt al. v. Jiosi, -J R. & t". 154. 
 
 112. Proceedings to forfeit gold areas- 
 Sufficiency of pleading — 'I'he Commissioner of 
 works and mines to an action of trespass pleaded 
 proceeilings taken to forfeit the areas in (juestion. 
 
 7/i/(/, .that the allegation that " no per.son 
 could be f(nind upon whom to make service of 
 the notice'' of process to f(,rfeit was sufficient 
 without alleging that no person could be found 
 in the g«dd district within which the areas were 
 situated, and that a j)lea setting out the pro- 
 ceedings taken in substantially the terms of the 
 Act was sufficient. 
 
 H'alluct V. Vrttlmuii, K. i*c U., 040. 
 
 113. Prolixity, unnecessary, matter for 
 
 taxation — 
 
 Hi Id, that, under the Judicature Rules, un- 
 necessary length is a matter which can be 
 effectually dealt with on taxation of costs, as 
 provided by Order 19, Rule *2. 
 
 Alio, that the pleas, though expanded at great 
 length, were not necessarily, on that account, 
 embarrassing. 
 
 McDonald v. Clarkt, I'O X. S. K., 
 
 (8 R. &(;.), 254; 
 8C. L. T., 401. 
 
 114. Promissory note— .4ctlon by Indorsee 
 
 — Allegation as to time of indorsement — In an 
 action on a jjioniissory note, by the indorsee 
 ag.'iinst the maker, the declaration should allege 
 that the note was indorsed before it became due. 
 Chi/iiiian V. liitrhii-, 1 Old., 710. 
 
 115. Puis darrein continuance and protest 
 
 that there waa no fraud— I'laintiff brouglit an 
 action, February "iOth, 1S70, on two promissory 
 notes, with a count for fraud, under section 136 
 of the Insolvent Act of 187."). Defendant had 
 become insolvent in December, 1875, and ob- 
 tained from his creditors a deed of compositiou 
 anil discharge, which was duly coutirnied Sep- 
 tember Uith, 1870, previously to which date 
 l)laintifl' had accepted a composition on the notes 
 sued on ; but plaintitf had not signed the deed. 
 Defendant having pleaded March 8tli, 1870, 
 
1028 
 
 PLEADING. 
 
 1024 
 
 Wnllaa v. lioxxovu -^. *'. R.,4HS, 
 
 added ft plwi ScpU'iiibor '-Tuli, IHTS, .selting up ' onU-f of \\w Coiut IhIow was one from wlikliaii 
 
 the deed and llie acceptance of a ompositnm, appeal would lie. 
 
 Iiut did not plead the <lisclmrge y-»/.i ilarn in \ ■_>. ReveiNinj; the judgnu'nt helow, that de- 
 
 (■oii/iiivaiiir, his uonuHel apprehending that the j feiidant having neglected to jilead Iuh dis.^liarge 
 
 etl'ect of .such a plea would he to confeNS the i hefore judgment, as he might have done, wa.s 
 
 fraud charged in the declaration. The cause estopped from setting it u)> afterwards to defeat 
 
 was tried in April, 1SS(», when a verdict was the oxeci'.tion. 
 
 found for the phiintifT for the lialance of the 
 
 notes sued on, hut the jury aciiuitted the di?- 
 
 fendant of the charge of fraud. Defendanis then 
 
 took ft rule »/.<i to slay proceedings, on the 118. Release Of actiOII- Plea Of— A gen- 
 
 grouiul that the debt had lieen discharged, eral plea of release of action is hail, if the releasr 
 
 Uule nil! discharged with costs. ! is not pleaded as being made under seal. 
 
 /'()• Ritchie, K. t)., that the defendant couhl A plea, setting forth an agreement l)etwecM 
 
 have pleaded the discharge ;)»M (/«»rei« fO)i^JH«- plaintiff and defendants, that plaintiff sIkiuIiI 
 
 anir, with a simple protest that there wa.s no accept tiiir<l pnrticsi, as paymasters, for l\w 
 
 fnuiil. amount of his claim against defendants, thiit 
 
 Harrin;i>un v. //'(V/- )•,•_> R. & (!., IH.S; said third parties agreed to pay the same td 
 
 1 V. L. 'r.,(3fi,S. I plaintifl", and that plaintiff accepted the siiiij 
 
 third j)arties and released defendants, is goml. 
 
 11((. Puis darrein continuance— Costs — 
 
 I'laintiffs, as executors, brought action for rent, 
 claiming .'?.S8, there being less than !?.S0 due, even 
 supposing the claim to be valid. Defendant 
 pleailed, among other.s an eipiitable plea, setting 
 out facts on which judgment was afterwards 
 given by the Ki|uity t'ourt, and the judgment 
 was then pleaded puis ilarriiii con/inuaiice. 
 I'iaintiff confessed the plea and moved for costs 
 down to the plea pais durri in, d-c, to which 
 defendant assented, and declaration costs were 
 taxed. The (V.urt allowed the taxation to be 
 reviewed and ordereil sunnuary costs to be 
 taxed, although the facts allowing that less than 
 $H0 was <lue could be gathered only from atli- 
 davits introduced after the taxation. 
 
 Marsha// il a/, v. S/ee/e, 1 R. & C, '284. 
 
 in. Puis darrein continuance— Discharge 
 
 — Suit commenced before assignment— Plain- 
 tiff recovered judgment against defendant after 
 plea puis (lam-.iii ivn/innonn. of composiiion and 
 disdiurge under the Insolvent Act of bStiU, the 
 suit having been conunenced before the assign- 
 ment of defendant under the Act. The discharge 
 was contirmed after plea and before trial, but 
 did not appear to have been brouglit to the 
 notice of the Court in any way at the trial. On 
 motion to set aside execution on the judgment, 
 
 Iltld, that the defendant must have the ad- 
 vantage of the general provisions of the law in 
 his favor, which cancelled the original indebted- 
 ness, and that the execution ami proceedings 
 thereunder must be set aside. 
 
 Wal/act V. Bosmm, 2 R. & C, 419. 
 Oh nppea/ to the Supreme Cowl of Canada, 
 He/d, Strong, J., diwentimj, that the rule or 
 
 Cozent v. Wiereta/, 1 Old., I •.',(. 
 
 Utf. Keplevin — Avowry for rent-Kepli- 
 
 cation necessary — Defendant in replevin avowtil 
 for rent, and plaintiff did not rejdy, relying on 
 the statutory replication denying the fuct.^ 
 alleged in the plea. 
 
 Hi/d, that a replication was necessary to put 
 the cause at issue. 
 
 Leave given to the plaintiff to (ile a rejilica- 
 
 tion. 
 
 Jiremner v. Ifa/Zace, 3 R. & C, 4Sl. 
 
 120. Replevin— Declaration in Tlie writ 
 
 alleged oidy an unjus'.. detention, and no unl;u\- 
 
 ful taking. 
 
 //(/(/, that tlie possession of defendant being 
 
 wrongful no demand was requisite to sustain 
 
 replevin. 
 
 ]Va//ace v. Laidlaw, '2 R. & (i., 4'-'ii; 
 
 •_'('. L. T., •.'().•!. 
 
 121. Replevin - Pleadings in-Piuintlfr 
 
 brought an action of replevin for certain guoiis 
 seized under a warrant of distress for water 
 rates claimed by the city, and the writ allcgLiI 
 an unjust detention, but contained no allegatinii 
 of an unlawful taking. Defendant denied tiic 
 detention, and pleaded a secoiul plea, justifying 
 under a distress for water rates, to which plain- 
 tiff replied, disputing the liability. 
 
 //lid, that as there was no complaint in tlie 
 writ of an unlawful taking, and no proof of a 
 demand of the goods by plaintiff, ho could not 
 recover in this form of action. 
 
 Iwi/ii V. Greemi'ood ct a/., 2 R. & (i., 2 ; 
 1 C. L. T., 192. 
 
102.') 
 
 PLEADING. 
 
 102G 
 
 I'i'J. Kvplicntlon - When IIOCCHMary I'n- MoDonalil, C. J. -It pliiintifY wueks Ici 
 
 will 11 Ihf pliiiiitiff wisliuM totiviiiil thf t.'fffft >pf reuovtT mi the ground tliiil when lit- paid the 
 
 ill fill. lint's pleas liy new matter he iinist reply, liiuney lie was not aware of farts wliieh he siili- 
 
 Siiiiili V. Sh irnri ii III., •_• 'riioin., 417. .>.,'( | lien tly <liseovereil, lie must eoiiie in and show 
 
 that. He is Ipiiiiiid to way .so. It eaniiot lie lid 
 
 H'.\. ItCVCIIIH' -lets Action for penalty for '" ''L-y'llected fn.m infweiue. 
 (iolallOII Of--l'laiiititr, as eoUector of colonial 
 ii'Vi'iiiie.s for the I'ort of .Sydnoy, lirouglit an 
 
 .Iiiilgm"!it for plaintifTset aside and new trial 
 ordered with leave to |)laiiitill' lo anii'iid. 
 L'nllnrt V. MiKiiii ii al., 'JH) X. ,S. ]{,, 
 
 {H K. &(;.). 1. 
 
 VHU Seal Absence of, must he pleaded 
 
 Defendants were createil a liody rorporate for 
 the jnirpose of Ih'Iul,' invested with the tit le of 
 the County Court Ifoiise, Halifax, with power 
 to eiilarge and improve the Imildinf,' for the puli- 
 lie use and to provide all lieeessary aeeomnioda- 
 tioii for the ( 'ourt.s, the .Muiiieipal Couneil, ete., 
 and to make.sueh eontraets as were neeessaiy for 
 that purpose from time to time. 
 
 Defeudaiits employed plaintill's verlially. to 
 make eertain alterations and improvements in 
 the Imililiiig, eominj,' within the class of woik 
 that they were aiithori/ed liy the Act of Iiiior- 
 poration to perform. 
 
 //'ill, following ClriH-i V. Cni-kfiihl Union, 1 
 II. C. ('., ,S1, that as the work doiuj was within 
 the ordinary range of duties of the defendants a 
 eontraet under seal was not rei|uired. 
 
 Al"!!. that if the alisence of a contract under 
 seal uiiiild have lieen a valid defence it iniist 
 li.ive lieen pleaded in oidci- to eiialile defendants 
 to avail themselves of it. 
 
 Mflniu^li it III. V. ('onuniiitiomrx of Coiiri 
 IIoii-i, IIiii:iii.r, •_'() X. .S. R., (S H. \ (;.), 4;j(l; 
 
 !»C. L. 'I'., 1I.>S. 
 
 iirtiuii against defendant for the (leiialty incurred 
 uiiiliT Revised .Statute.s (,Srd series), c. I "J, see. 
 II. liy a violation of the revenue laws, and oh- 
 t.iiiii-.i a V(M'dii.'t. 
 
 A rule ///'•/, in arrest of jiidgnieiit, was granted 
 In ilctcndalit, on the following i^rounds : 
 
 I'li'-t, liecause it was not alleged in thedeclar- 
 iitidii that the action was lirouglit at the inslaiice 
 lit till' hoard of revenue; secondly, liecause the 
 |i;iitiriilar olleiice alleged to have lieen coniiiiit- 
 liil. was not s|iecitied in the writ and declaration. 
 
 //'/'/, that neither olijeetion could prevail. 
 Till' .Statute provided that this action, thouyh i , 
 liiiiiiLllit for a penalty, should lie Jirosecuteil in 
 thesiiiiic manner in all respec'ts iw an action for 
 t!if iciovcry of a debt, and the defendant if he 
 wisliiil to take advantage of the tiist ground, 
 >!ioiilil have pleaded it as a matter of defence, 
 wliiK- the second ground of olijeetion, although 
 iiiii|iii.stionalily fatal, if this were a ci-imiiial 
 lUMsiiciitiiin or indictment, was of no avail in a 
 |iiirrly civil action. 
 
 Iti'toinluiit also took out a rule under the 
 st.ilute to set aside the \-erdict, and for a new 
 nil! upon the ordinary grounds, liut the jury 
 hiving fiiiuid for the plaintitl' upon all the issues 
 iiftMrt. the Court refuseil to discharge the verdict. 
 Liiiiiiiril V. C'li'isii-'ll, 1 X. S. 1)., PJl. 
 
 127. Scaling and delivery of hond -How 
 
 1'24. KlllC of pleading -Every pleading P»t "i i«»'le--'riie sealing and delivery of a l.ond 
 HUM lie an answer to the whole of what i.s ad- '^'^' 1'"^ '" ''*'*"'-' '">' " I'''-''' ''"'* ''"^ defendant 
 veiM-ly alleged, and profcsseil to lie an.swered | " '^''' "^''^ '"'^'^'^ '^"'^ deliver any such bond,'" as 
 tliticliy ; and this principle is not affected liy *''''' ''^-'^'l'''^''! ""■ 
 |«>yiiK.nt into Court under a particular jileiL ^^""" '• ^^''"'' - '^- ^^''^ •""■ 
 
 I luistn, K. .]., iiouutinij. I28. Sealing -Plcas to put in issue-De- 
 
 l.iib V. Laii-.-iOii, 1 Old., (iti.S. feiidauts pleaded as to certain agreements alle- 
 ged to have lieen made liy them under seal that 
 
 125. Sale of goods — Action to recover the alleged deeds were not their deeds, and they 
 piice paid on ground of non-delivery -Mu.st did not umlertake and promi.se as alleged, 
 be plea of want of knowledge of non-delivery llild, that under 4th H. ,S., cap. 'J4, a. 1.V2, 
 at time of payment — Plaintiff .sued to recover an olijeetion could not, under the pleas, lie 
 money paid fur trees which he alleged had not ' taken to the authenticity of the seals atiixed 
 I'ten ili'livered according to eontraet. His conn- to the agreement as the seals of the defendant 
 •^il ciiiitciiilcd that at the time the money was ' company. 
 
 l«i'tpliiiMtitl' had 11(1 knowledge of the failure to 'fr'n.'/ori/ v. Tlit Halifax and C. Ii. liailmiy it- 
 '''■''^^'^'i- Coal Co. ct al., 4 R. & (i., 4.W. 
 
 ''■'• Ritchie, .).— That is not alleged. The Affirmed on appeal to the .Supreme Court of 
 '■'"111 1^ lor the non-delivery of the trees, but | Canaila, HMh Fi In-nary, ISS.h Cas. Digest, 4.'U. 
 'lie eviilenee is that the bill of lading was not : Leave to appeal to the Privy Council refused 
 
 tiiken. 
 
 33 
 
 I 3rd Ajiril, Ib'OO. Cas. Digest, 544. 
 
1027 
 
 PLEADING. 
 
 1028 
 
 Vi% 8et-oflr-('annot be pleaded to ouhI 
 
 juriHiUetion WIicit iiCoiiit li.i« no jiirisilioliini 
 to tiy a i|UeHti(in of titlo, ikfciHlunt ciinnot. oust 
 till' jiiriHiliction to I'lilortaiii ii (.laiiii iiivolviiin 
 no c|ii<nti(iii <if titli', l>y pU'ailiii;.; a set-off tliat 
 involves a (Hiestion of title. 
 
 Ci-'ii/fUon V. Liiidsiiy, .'{ K. & <i., -43. 
 
 ISO. Sel-oir - JiMl^'ment recovered by 
 
 third party after eoinmeneement of action and 
 aHsigned to defendant — To an aetion on a pro- 
 missory note defenilaiit pleaileil, l)y way of net- 
 off, a judgment for a greater amount recovered 
 against jilaintiff l.y a third party and as.signe<l 
 to defenilanl after the connneiRenient of plain- 
 tiff's aetion. 
 
 ///'/, that the i)lea wan had. Kven if pksul- 
 ahle the plea could only l>e to the further main- 
 tenance of the action, and not in har to the 
 whole action. 
 
 Assuming the assignment to have heen made 
 in good faith, defendant might possihly have got 
 the henetit of it on apphcation to the Court in 
 the exercise of its eiiuitahle jurisdiction. 
 
 McDonald v. X' rill. , 4 K. At;., 191. 
 
 131. Set-off rie a of Defendant pleaded 
 
 a set-off to |)laintiti"s claim for goods sohl ami 
 delivered, ami under that plea gave evidence of 
 a sale of goods to ])laintiff liy the defemlant and 
 ids co-partner, anil an agreement made lictween 
 plaintiff, defendant and ilefendant's co-iiartner, 
 that j)laintiff's claim should he paid in goods 
 from the ])artnerslni) store. The County Court 
 Judge gave judgment, for defendant on this evi- 
 deu.e, and the appeal from his judgment was 
 (lisuiissc(l with I'osts. 
 
 Ci'i'ii'-Ik r V. (Initit, "J \\. k. (1., 37". 
 
 i:{'2. Sct-off-Kepllcatlon -Where no rep- 
 lication ha(i licen put in to a i>lea of set-off', and 
 one had heen tendered at the trial, 
 
 // Id, tl)at the Judge ought to have received it. 
 
 (Jiduri:, if a replication is necessary to such a 
 
 plea. 
 
 Tol/in v, /.*(ui//, '2 Thorn., 4(fJ. 
 
 //'/'/, that there was no need ot alleging nr 
 proving special damage. 
 
 I'niiif V. Mail. nil, :\ .\. S. 1)., ;il(i. 
 
 131. Stampings Illcgal-Xo plea of, but 
 
 evidence of received - 
 
 //«/'/, that, although theie was no plea of in- 
 sutlicieiit or illegal stamping, yet, as evideii.r i,l 
 illegal stamjjing had heen received at tlic tilid 
 without ohjection, the<iue»tion of the h'galily.it 
 the stamping was for the consideration of tlif 
 
 Wni.r^ v. McCullorh, 2 K. HC, 74. 
 
 13.1. Statement of claim -Condition pre. 
 
 cedent— 
 
 //(/(/, that the statement of claim coiitainin^; 
 an allegation that the " said property w.is 
 ac(|uired hy tiie said A. J. 1'.., during coveituic 
 otherwise than through her sai<l hushaml, iiml 
 hehmging to her under and liy virtue uf thu 
 .Married Women's Property Act of 1S.S4, in lar 
 own right, anil to which she claimed loin- vn 
 titled under said Act," the defendant washdim.l 
 to plead iion-performanee of the condition |pre- 
 cedent recpiiring the tiling in the Registry "I 
 Deeds of a consent in writing hy the hushainl, if 
 he wished to take advantage of it. 
 
 /'.;• McDonal.l, .l.--Thal the jilaintiff's >l.it. 
 ment of claim implied an averment of tlic |iir 
 formance of the condition (irecedenl nccessinytM 
 maintain her case, and thai tiu' defendant niiM 
 specify di.stinclly any condition, the perfoinwii' 
 , of which he intended to contest. 
 
 r.r Ritchie and Weatherhc, .1.1.— Tliat tin 
 plaintiff's statement of claim pointed distiiKtlv 
 to the third section of the Act, relating tn tin 
 real and i>crsoiial property of married wniniii. 
 anil contained no reference to wages or eanuii.-. 
 or anything to suggest thai thu property wa- 
 claimed under section .VJ, which protects a nwr 
 ried woman's separate earnings with tlie h.i- 
 haiul's consent. 
 
 That, if the plaintiff liad hrought her.'^clf win. 
 in section .")'_', she might have recovered, lli"U^^: 
 an amendment woidd have heen necessary. 
 liohabr a al. v. Mor.-«, ■_'<> N. S. I!., 
 
 (^\\.kv,.),iVl. 
 SC. L. T.,.11"v 
 
 136. Statement of claim - Omission of 
 
 133. Slander- Special damages need not 
 
 be alleged or proved in certain cases— I'laintitt' 
 claimed damages for slander, alleging in his 
 declaration that defendant had spfiken certain 
 
 woids ahout him in relation to his Ijusiness to ,„„. ,j.„.^„..>.... «. 
 
 the effect that he wa.-^ guilty of frau.lulent con- ! essential facts-Defendant need not deny sue.- 
 iluct in said husiness, and was untrustworthy facts when not alleged -In an action hidu.-'i:^ 
 and unprincipled in his way of carrying it on, [ by plaintiff, as in.lo.see, against del'encliint^.|- 
 whereby plaintiff was injure<l in his credit and I indorser of a promissory note, it appciuec 1 1 1 
 reputation, and his customers were caused to , the note was made payable "'at ' "^ " ^ 
 ■iiiiit their dealings with him and to withhold i chants' Bank, Hawkesbury." There was n' 
 business from him. < -^... » .. 
 
 I chants lianK, nawKeaoui^. ^' 
 
 1 allegation in the statement of claim to show tlw- 
 
mi) 
 
 PLEA1)IN(}. 
 
 lo.W 
 
 llir jkjIc \v.i« iriiidi! payiildi! iil Unit |>lii(t', m|' 
 tli.ii It wiiM iluly iiifsciitiMl f(ir jmyniLiii tlioii-, 
 di ilmi any notii'c of ilJMli<iii<>r wiin given to 
 >li'li'ii(liiiit. 
 
 IliM, ill. it ill I lie iilisciirc (if hihIi iivcriiiflits 
 ,in<l |iiiHi|, |iliiiiilitr udiijil iKit ifcdvci. 
 
 .|/'i, ilmt, iiiiiUt tlic picsi'iit system of plcacl- 
 illg, it wuH nut iiK'iiiiilii'iit iipoii ili'li'iiiliiiit to 
 ili'iiy fiKtH tssciitinl to iiliiiiit ill's ri),'lit to 
 li.over, iiiilesH siicli liitts wiic .iilc;,'ccl in tiic 
 Ktiiti'iiU'lit of cliiiiii, 
 
 />'ir/(n;/ V. <!illiis, •_'<! N. S, K., 
 (H H. ltd.), 4-_':ii 
 
 y ('. T. r., 1 •.'<». 
 
 \\1, tiuflicicncy ofullcgations In an udion 
 
 liriiiiglit for tiispii.-s to pliiiitid's iiiiiiiiij; areiis, 
 (Itfi'iiilaiit justifioil as ( 'oiiiiiiissiom'i' of Mines 
 iiiiijci' a forfeiture, ami set out ir one of iiis 
 [pIius iiiii r alia tliat all proieei line's ir|misite liy 
 lim Id lie taken to etleet a forfeiture of saiil 
 liiisf were taken uml nil iieeessiiry iiotieen .set- 
 lin,' iiiit defaults ami lireaelies were clnly given 
 ami tli(^ (lefemlaiit lieing sucii ("oniniissioiier 
 iliily L'ave jiKlgiiieiit forfeiting saiil lease * * * 
 ill tlir form anil iiuinner jireseriljed liy law. 
 
 //'Ill, that tlii.s pleii did not set out with suf- 
 tiiiiiit |iiiitieularily tlie steps taken to give the 
 ( 'oniniissioiier jurisdietion to forfeit the lease. 
 
 l\'>il/iir, V. Cr-'fiiiriii, .'» |{. & (;., 4|S. 
 
 13H. Sureties Declnration on behalf of 
 
 surety against cosurety Deimnrer to declar- 
 iiliim hy oliligeo on liond assigned to eo-siireties 
 wlidliiid piijil defeiiilant"s delit, overruled. 
 
 tlxrli<ii„j,: llaiiL- V. Ilroini, '2 H. A: (,'., Xi't. 
 
 13!>. Tender and piiynient into court 
 
 Effect of aeeeptanoe of money by plaintiff— 5th 
 R. S., .■• 104, O. XXII., R. 6-To an action for 
 11 lIkIiI alleged to he due for the earriage of goods 
 'Icfcndaiit pleailed two pleas, the one alleging 
 UikIlt litfore aetion hrought, and the other pay- 
 iMtnt into Court in satisfaction of the plaintiffs 
 tUiin, 
 
 Plaintiff having accepted the money paid into 
 t<imt in full .satisfaction of tiie claim in respect 
 "f which it was paid, in accordance with Order , 
 Kii, Rule 6, defendant contended that the plea of 
 temler involved the costs of the action up to the 
 'iiiif of piiyinent into fourt, and left an issue ' 
 «ill 'luistauding which he was entitled to have j 
 tiii-'il, or to have the action dismis.sed with costs. ■ 
 
 "'M, that the acceptance of the money paid 
 "ito Court in full satisfaction of the plaintiff's 
 •laim was a determination of the action, leaving 
 
 only the (|iustion of costs or tender to he dis- 
 poned of liy tli»' .fudge. 
 K<ul,i,<i V. AV/m, •.'(» \. ,S. |{., (,s K. kV,.), •J.-JS ; 
 
 sc. L. T.,;m9. 
 
 140. ToriN I'lea denying eonverition 
 
 Evidence under 4th R. S., c. 94, hh. 144 & 14G 
 ll'lil, in action of tiover, that, under 4tli 
 I!. S. cai). !I4, sees. 144 and 14(1, defendant could 
 not under a plea denying the conversion, avail 
 hiniself of the defence that the goods Were not 
 the property of the plaint ill'. 
 
 Morrison V /''ishirirk-^ | It. ,1; C., .",!). 
 
 141. Traversing or eonfesslng and avoid* 
 
 ing necessary -I'laintill 's first count set out 
 that he was |)ossessed of a messuage known as 
 Knieiiild Hall, which he had lieeii accil.stomeil 
 to let for hire to soldiers of the garrison, to lie 
 used as a dance hall, and that defendants well 
 knowing the premises, and contriving to injure 
 plaint ill', unlaw fully and iinjiistly persuaded, 
 procured ami induced the (leiieral commanding 
 the forces, liy an order, to prevent the soldiers 
 from assemliling in said hall. The secoinl count 
 dillcred only in alleging thai, the hall was occu- 
 pied in a legitimate, orderly and proper manner, 
 and that clefcndant, knowing and contriving as 
 liefore wrongfully and falsely represented to the 
 (leneial that it was a nuisance, liy means of 
 which fidse rejiresentations the (ieiieral was iii- 
 I duced to prohibit the use of said hall liy the 
 soldiers. Defendant [ileaded that plaintill' at 
 the time nientioneil occupied said premises, and, 
 conti'ijy to law, kept a disorderly house, fre- 
 ipieiited liy soldiers and citizens, who liy tlieir 
 riotous and disorderly coiidiiot, disturlieil the 
 peace of the citizens, and that the (ienerul, in 
 coiise(|iieiice of the disorderly house ho kept liy 
 the plaintif}', placed the said hall out of bounds 
 for the military, ito. 
 
 //(/'/, on dcniiiirer, that the plea was bad, as 
 it neither traversed nor confessed, and avoided 
 plaintitr's allegation, the gist of which was that 
 the f.'ity, contriving to injure the plainlitl", 
 wrongfully, unlawfully, and falsely represenled, 
 &c., but that the dechiration did not disclose a 
 good cause of action, as althougli the city could 
 be held liable ffjr intentional acts of misfeasance, 
 it did not appear that there was any binding 
 agreement conferring rights or interests upon 
 the plaintiff which had been violated by the 
 procurement of the defendant. 
 Laiisoii V. The City of Halifax, 3 R. & C, 108. 
 
 142. Trespass — Pleading In— Denial of 
 
 plaintiff'a possession— Sufficiency of plea that 
 the land is not plaintiff's as alleged — To an 
 
lOSl 
 
 PLEADINO. 
 
 UY.Vl 
 
 iiulioii of tn'.^|)aH.<i til liiiiil, ilcti'iiiliiiit |)lt'aili'il, 
 iilnimi; iitli(.-i' plt'iiN, tliiil till' liiiiil wiiH iKit |ilaiii- 
 titr's iiM iill('i<c(l. The xfiilii't xvii« fcpi' |)liiiiiliH'. 
 
 J/''i/. i»r McMoliuM, r. ,1., and W.atlui he, 
 .)., tliiit till' |>laiiitil)',i ))i>.-«»('N.siiiii was |)iit ill 
 iMHiic liy till' [ilcii. 
 
 /'i /' .Mi.'hiiiialil mill •liuiit'N, ilil,, lliiit till' poH- 
 m'.HMioii hIkiuIiI liavi' ln'cii HiK'ciriuivUy (U'liiuil, ami 
 till' plia wiiH lint HUlHi'ii'iit. 
 
 Till' Court lii'iiiL! i'i|ually iliviiU'il (III ilic riiU' 
 fill new trial, tiic riili' iliniiiu'il. 
 
 A'//)/./'.. V. Xoi/.^, ;{ I!, it (i.. .S'_». 
 
 lt:i. Trespass I'lva of oxtliislvi' pos^ 
 
 Ht'MHion -Evidence of joint iiosscssion— Verdict 
 HUHtained — Wlicrc ilcfiiiilaiit plcailcil, in juHti- 
 tiiation til trespasn, an i'Xi'lii>iv'-' |iii.sst'.ssion, ami 
 till- I'viiU'lice slioweil a joint |iiwNeHHiiiii with the 
 pliiiititr, anil lliiTf was a vi'iiliil fur the plain- 
 till', the ('oui't lefuseil to ilistlll'li the vel'ilict. 
 
 Moon \\ J/iniiiiiii, li 'I'lioni., -id. 
 
 114. Trespass Pleais in In an action of 
 
 tfespass, wliere the only pleas are ; first, that 
 (li'feiiilant did not enter plaiiitilf's close ; second, 
 that the land and soil were not the land and soil 
 of iilaiiitiH'; and third, leave and license; the 
 defi'iiilanl will he preclndeil from proving that 
 the plaintitl' had not the ii;iht of possession. 
 
 <;r(,//o V. /'ro'*>7(, •_' Tlioni., -Jitl. 
 
 145. Trespass-Plea «!' rifilit of waj - Ik'- 
 
 claiation for several trespasses including the 
 
 lilariiig of rnliliish on the soil. I'lea, right of 
 
 May. 
 
 JIdil, on deimnrcr, that iht jilea should have 
 
 Btated the particnlar trespass inteniled to lie 
 
 justified. 
 
 Tohiii It al. V. O'Xrl/, .lames, 00. 
 
 146. Trover — Defence In County Court 
 
 that the value of the goods la over $200— 
 Writ of prohibition — jlefemlants were sued in 
 the (.'ounty t'ourt in an action of trover for 
 goods and pleaded that the goods alleged to have 
 ))een converted were of the value of J^OiW and 
 upwards and the County Court had iin jurisdic- 
 tion. The plea was demurred to and held to he 
 good by the County Court Judge, who was 
 about jn-oceeding to try the case -when a rule 
 ni-'i was taken at the instance of defendants for 
 a writ of prohibition. 
 
 //eld, that the plea was not a good plea, as the 
 damages claimed were oidy 8200, and the meas- 
 ure of damages in trover was not necessarily the 
 value of the goods ; and that, the CVuirt having 
 jurisdiction, the writ of prohibition could not 
 be granted. 
 
 0' Toole v. IVallace et al., 4 R. & G., 357. 
 
 On iiiii>iiil III Ihi Siijiii nil Ciniif nl' (''iiniil'i, 
 //i/il, Stroiij», .1., iliiii nilnij, that the cll'i'ii i,| 
 the jlldgmt'lit on the demiiri'er was to i|Ua»li till' 
 wilt, and the rule niii for a writ of piiihiliiljuii 
 should be made absolute. 
 
 I'll- Strong, .1., ili'"^! nlimi, that the jiiilj; 
 meiit of the County Coiirt .Judge on ihr lU'inui' 
 rer did not dispose of the ease; hut he liail u 
 right to rei'oiiHider the suliie on the trial nf tlii' 
 issues raised by the other pleas ; that the pit';! 
 to the jurisilii'tion, by attfirney, was null aii<l 
 void, and if judgment had been eiiteriil ui 
 record on the demurrer, such judgment wmilil 
 have been likewise null and void, and tlmt the 
 aniounl claimed by the plaintitrs deelaiatiiiu 
 bi'iiig over (</'• in ("as. Uigesi, probably "only'' 
 coriei't reading) .S-fMI, tlieCiiuil had juiisilictinii. 
 H'd/Ziiri V. O'Tiioli , /il/lt /■'< liriKiri/, ISS.',, 
 Cas. Dige.-t, \±. 
 
 147. Variance The notes sued on \\m 
 
 lU'ilared on as payable in United Stales iiir 
 reiicy, while the evidence sliowed that tliiv 
 were payable in "currency." 
 
 //(/(/, that as they were made payalile in llic 
 Cniteit States, and the word "currency " in tli.il 
 cast' would he held to mean currency of the 
 United States, the variation was not matiriiil. 
 
 l''nrthcr, that the objuctiun to he aviiilaUo 
 should have been pleaded. 
 
 Sdiiilii r il III. v. Wdlldi'i il ill., 
 
 •-'ON. s. H., (s H. iV <;.). .'Oil. 
 
 Atlirmed on appeal to the Suiireiiie Cnurt mI 
 
 Canada. 
 
 !IC. L. T.,'Jlo. 
 
 148. Variance The language of a pien wa» 
 
 "if any of the answers made in the applicaliHii 
 for the same (/. ' ., for a policy of life insiinuicc) 
 should be untrue, evasive, or if the appliciints 
 shonhl conceal any facts." The language nf llu' 
 application was, "if (here be in any of iln' 
 answers herein made any untruth, eva.sioii I'l 
 concealment of facts." 
 
 Hi III, that this was a variance whicli ]prcveiiti'il 
 the defendant Society from taking advaiitiigi' "l 
 the misstatement. 
 
 Wthsta- tt al. V. Tht Mutual lid'n/ Sodiiij, 
 
 20 N. s. K., (8R.it (;.),;«:: 
 !) c. L. T., yy 
 
 Affirmed on appeal to the Supreme Court "f 
 Canada. Gwynne and Patterson, .].)., (/i"'i"' 
 
 '"■ 9C.L.T,m. 
 
 149. Variance between declaration and 
 
 evidence— Though the declaration on a proinis 
 
1 ();{:{ 
 
 POOR LAW. 
 
 I():i4 
 
 wHV lintr illU'^'cil liiitict', mill l lie fVidclKi' only 
 iiiiivnl Muivj'i' III' iiiitiic, tliii ('(lint ii'fiisi'il III 
 (lir<tiiili tilt! vt'i'ilict, III' til ilcprivu |iliiiiititrH uf 
 ilii'ir li^Ut f'l c'liHlH. 
 
 IViifi roii.i h'liiiiiii Co. V. ('hri'>i\i , 
 
 tl K. &(i., I(«l; (IC. L T., 441. 
 
 I'lO. Vnrlnnro Demurrer The deelar- 
 
 iitiiiii wn* rxi fniHUHl iiH til iilicgo llmt ili'lVinliintN 
 asHuri'tii-i* U'cri' lliililu tn piiy to |ilaiiititi' in onu 
 ^lllll, nil tin- ■-'■Jiiil Mi'cc'iiilii'i', wimt liy tlio ii^reu- 
 
 Ml ili'cliiri'il iipiiii mill wliiisi! |it'i'fiii'iiiiiiaT tliuy 
 
 hill ^iiiiiaiitL'iil (', their principal wax IihiiihI to 
 iii;, ill twii siiiiiM III! JMt of AugiiHt anil JHt (if 
 Niiviiiilifr, ix'Kpcctivfly. It iilxo eontiiinuil ii 
 I'iMiiit nil all lux'iiiiiit Htiitt'il, Dcft'iiiliintH ile- 
 nnirii'il to the wlmli' ili'iliiiiitiim. 
 
 Ill III, that tlieri' hIidiiIiI In, jii(l^,'nu'iit fur ilcfen- 
 il, lilts (III the tii'Ht (.■mint, ami f(if the plaiiititi' (in 
 
 till' Sl'Cllllll. 
 
 A<li,,ii'> V. .Vrtur/diir ,1 II/., ;< \. s. 1)., ;<:». 
 131. Variance- Kecord roll— OmIsNion of 
 
 declaration from record roll -The iiiiiin(*i(iii of 
 till' iliilaratiiiii frnni a lecoril roll wliieli set 
 t'lirtli the isaiiu of the writ of Hiiiiiinoiitt, the 
 iiiiiiis (if the parties, the partieulars of elailii, 
 till' ]iU'a (if eonfession, ite,, hehl nut to lie siieli a 
 filial irregularity as would Huctain the plea of 
 mil tifl reeonl or jirevent the inliiiission in evi- 
 ikiKc of the roll. 
 
 Hi III, further, that a varianee lietweeii the date 
 iif till- jinlgiiieiit as alleged and as it ajipeared on 
 till' iiiiinl, wa.s not fatal, as tlii.s objection was 
 iiiit tiiki'ii at the trial. 
 
 Mcl.,iarii V. Ijijtli, 5 R. & (i., .'{7. 
 
 1.V2. Waiver Party relying on mu8t 
 
 allege and prove— Where it was contended that 
 till' ])liuiititrs, liy lapse of time, were delMirred 
 fiiiiii liiiiigiiig their action, 
 
 ///'/, that it was for the defendants to plead 
 it. ami to establish it affirmatively by facts 
 ]iriivtil. 
 
 FUh il III. V. Frmir <t al., W N. S. 1)., r)l4. 
 
 153. Way of necessity —Plea of- When 
 
 il tenant liy the curtesy of one lot, who is the 
 owner of an adjoining lot, pleads ii way of neces- 
 sity in himself, there being a convenient access 
 liy the lot of which he is owner, 
 
 Hihl, that such a plea will not be a good de- 
 feiioe. The plea need state no more than that 
 it is a way of necessity. 
 
 RatchJ'ord v. Kiiinmr, 2 Thorn., 407. 
 
 154. Wharfage-Indebitatus assumpsit— 
 
 <i harfage is recoverable under counts of iiidtbi- : 
 
 liihiM insiiiii/i-l/, that liciny the prii|)er fniiii in 
 which to proceed. 
 
 JJi llulf V. J'nifhiiril >t nl., ;t \. S. ])., '.••J4. 
 
 an. WilhdrawinK Terms In ffrantiniic 
 
 a rule to withdraw a pleiidiiig, the t'oiut may 
 inipoMu reuMoniiblu terniM. 
 
 Mi:Khij v. llnmilloii, diimeH, \7>'\. 
 
 >",'./", PKAITICE. 
 
 PLEDOE- 
 Si. LIEN. 
 
 I. Flre- 
 '2. Llfe- 
 3. Marine- 
 
 POLItT- 
 
 S" INSlRANt'E, FIRE. 
 
 AVe IJfSl'RANtE, LIFE. 
 
 SVc INSURANCE, MARINE. 
 
 POOR LAW- 
 1. Expenses Incurred previous to removal 
 
 of pauper — A pauper having a settlement in 
 defendants' district was seized with fever in 
 pliiintiH's' district. I'laiiititfs gave her relief, 
 gave notice to defendants and had the pauper 
 removed as soon as it could properly be done. 
 They then brought action for the expenditure 
 incurred previous to the removal. 
 
 Hi III, that the Statute was not sutiicicntly 
 clear and unnmbiguous to impose on defendants 
 the expense of sustaining the i)auper previous 
 to removal. 
 
 Or'rsiirs of Poor, lirkliji natrr, v. Ovtrsiir^ of 
 Poor, Port Miilimij, 4 R. & (i., 88. 
 
 'i. Notice of action to Overseers of Poor - 
 
 A., R. and C, describing themselves as Over- 
 seers of the Poor for North. River, brought 
 action against 1)., E. and F., described as Over- 
 seers of the Poor for Brooktield, for the mainten- 
 ance of a pauper. The Act of 18"6 reduced the 
 number of Overseers to be appointed for town- 
 ships from five to three, but the .Sessions of the 
 defendants' township appointed five, and notice 
 was given to one of the five so appointed, who 
 was not made defendant in the action. 
 Hild, that notice was necessary to enable 
 
\o:\:i 
 
 POSSKSSION. 
 
 lOSfl 
 
 lilailltilVx to I't'i'civi'l', unci tli.it the IKiticr ill tlllM 
 
 CilM)' WIIM lint t<iVI'll to till! |ll'0|ll>r ]llll'til>l4. 
 
 AfrCnrihf' III. V. Ihrnii ,l iil., ."I 1{. A <i., '.'40. 
 
 /lifil, tliiil lilt' iipitfiil inilMt lit' ilimillnwi'cl, in 
 
 tilBI't) WIW no UVillollOO of till' llllttt of llolliu fflHIl 
 
 wliiili tlif ('(lint I'oiiM liinc «niil how iiiii> li 
 |iliiiiitill' wii-i i'htitli-<l to t'l'i'ovt'r, liiil ili.it till' 
 
 3. Order of nilallon MoanliiK of wonl» '""'^ ofo|,|,nMJn« tii.Mi|>|M'ai hI.ouI.i nm i„. i.i 
 
 InWi'il, IIM till' Collllty ('olll't lliul ili'i'iill'ij nil 
 
 ilill'i'ii'iil mill unti'iiiililr ^loiiiuiw. 
 
 JlJil, n/iii, lliiit till' fai;l of till' |iilU|ir|- li'flls. 
 
 "To hefionie char^fealile " Urfi'iiclniit nlijiTicii 
 to an onli'i' of tiliiitioii, iiiiiili' lit till' iiiMtiiiH'i' of 
 till' Ovi'iMi'i'iH of till' roor for Miu'i'iiii, on tlii' 
 
 Kionn.l timt iiltlioui;li tin' inotluT «.im r.'.siil.nt '"K f> "i.iki' iin atli.lavit an to the jiiiUniity nf 
 
 al Mai'.an, Nihin tlir riiihl was n tin- h'u'al tin- chihl wan not MitKduiit to wariant liu'()v..|. 
 
 Hi'ttli'iiu'litof ti,.' inothi'iuas till' ToMiiMiiip of '*<•<•'■"'" uithholilinn ivlii'f, oi- r.'fiiHin« to ..'ini 
 
 1 ... .1 . 1 .:. . L.I- I 1 ;. 1....I I tf... 1 1 
 
 I'iiiIhIioi'ii 
 
 //i!il, tlial tlii'faliii'i wiiM lialili' totlu' lilailltifT 
 'roMiisliip, till' woiil.s "likily to lii'conic ilmrgi!- 
 alili' to any 'rii\Mi>»lii|i " lii'iri^' ('(inivali'iit to 
 " likrly to iK'i'il ri'lii'f fioin any 'rowiiMliip." 
 
 Oi; )•■« I )■* III' I'li'ir V. I ><t rill 1011, 4 K. & (!., •"»H. 
 
 .s.f. (//«', BASTAKII. 
 4. Overseers of Poor Aellon nKaliist 
 
 riailUill' I'laiinrcl, llllilil ali ligri'i'llli'llt llliiili' iiS 
 
 liiirHi'thi' |ilaintitr liy wimni it hail lii'i'iiatVnrili'i 
 Shrills V. On rill rt of Ihi I'mir, 
 
 I It. \ <;., tll.-i. 
 
 «. Overseers of llie I'our are not liable for 
 
 iM<mr>' iliii' liy thi'ir |(ii'ili'i rM»ors in ollirr tor tin- 
 
 krrpof a iiaii|n'r, iiltlioiij;li .•<iiih iiii'iloci'nsoisli.hl 
 
 flilL'ti'il into an a(,'li'i'liic'lil to pay foi' biiiIi kii'li 
 
 Hiirrllf it nl. v. llitljiihl >> n/., '2 Tlioin., jiil, 
 
 7. Overseers of Poor lilnbllily of, unM 
 
 oni' of thi' ( )vc'rHf tTH of tilt' I'oor, who hail \>vvi\ agreement- -Wlii'ie a ili'fi'iiilant, an OviT.si'i'i' nf 
 
 iU|)iiti'il liy till' iithiT Ovcrst'ir.s to attuiiil to tin- tl^. I'ckh , tnaili' a \i ritti'ii ajirci'iiii'iit to mi'i- tint 
 
 ii|iii'>«t of till' plaiiiiilV's fithiT, rlaiiniiiu' to 111' a plaintilV ri'oi'ivi'il pay for .■-I'lx ii.i's rcmli'ii'd tu 
 
 1 : 1 K..; 1,.,. 1 ;.. , • . _ ^ . 
 
 paiipri' who ii'i|iiiii'il nii'ilirini' a in I alli'inlaini' in 
 lii.s la.st illncMi*. 
 
 It appoaroil that jilaintilf' wa.-* a |ii ison of no 
 iiii-ans wlmtt'viT, lnit tliat oiiu of tin' jiaiipi'i's 
 otlii'i' HoiiM, aftiT the I'liiitiact wa.s inailt' Mith 
 plaint ill', notitii'd tliu ( )vi'r.'<i'er.s of his willins.'- 
 ni'KM to sn|)poit hi.'< father at lii.-< hiMise, liiit at 
 the time Maiil notice was ttiveii the iian]>er was 
 not in a loniliiion to lie leinoveil. 
 
 //</(/, that lU'feiiilaiits, the silceessors of the 
 Overseers who hail ilealt with the matter in tiie 
 tirst iiistaiiee, were lialile ninler the emitrai'l, 
 altlioiijj'h the'rowii meeting had ileiliiieil to vote 
 a sum to meet the charge, their renieily lieilig 
 liy amereement of tiie Towiishi|). 
 
 Si nihil , that apart from the eontraLt, the 
 Overseei'H woiiM lie lialile iiinler Mevised Stat- 
 utes, eliajiter .'W, for attenilaiice furnisheil liy the 
 plaiiititf, lieing a per.son not liable liy law for 
 the pauper'.s sup]ioit. as he was not of suttieient 
 aliility to relieve and maintain him at his own 
 charge, ami no direction had lieeii given by the 
 sessions that he should do so (.sections 11 k IS). 
 Minifo V. Onr^KVi o/iIk: Poor, Wiillwi , 
 
 1 R. & <;., .'lOl. 
 
 I transient pauper, 
 
 111 hi, lialile, alt hough his ( 'o-()vci'.si'er.s re- 
 imdiated the oliligatioii. 
 
 ]>' iiiii^iiii V. I>ill, Cncliraii. .'in. 
 
 8. Removal of pauper No appeal lies 
 
 directly to tiie Supreme Court froiii .in niiiir 
 of tlu.stices for the removal of paupers. 
 
 CoiLst ruction of Rev. Stats. CJnd series), e. SH, 
 s. 14, 
 Orirstiv i</ >lii I'lmr /or <lni iijiihl v. flnr- 
 
 uriri oj'rhr /'nor fur llu^ln n, 1 Old., (iO.'i. 
 
 ». Kemoval of pauper - Order of Sessions 
 
 - How sustained — An order of Session.s I'li 
 removal of a jiauper, granted iiiioii iiisutliciiiil 
 grounds, cannot lie sustained liy atlidaviis ni 
 facts omitted to he vcritied hefore the unlii 
 passed. 
 
 /hr'inhi/ il III. V. (litnliinr ii <il., .laiuc.-i, 'M. 
 
 POKTS- 
 
 Ports of the Donilnlon, home porls In rola- 
 6. OverseersofPoor- Action by, to recover tion to each other - 
 
 expenses — Plaintiff brought his action in the 
 County Court to recover an aniouiit expended 
 for the support of a female pauper and her 
 illegitimate child, but failed to show when 
 notice was given, and request made to the Over- 
 seers. The judgment of the County Court was 
 for defendants. 
 
 Si'p SIIIPPI>«' 
 
 POSSESSION. 
 Disseisin -There can be no disseisin b) a 
 
 party holding possession, without title, of par' 
 
I(»:l7 
 
 PRACTICE. 
 
 lO.'lS 
 
 iif It lilt iif land, ni^iiiiiKt liiin wlm liivn pimNCitKii ii 
 
 nt llltl lltlll'l' pHI't, mill the ll'glll titll' til tlltl 
 
 uliiilu. 
 
 Ilnllitlny ii itl. v. Ihfiiini/, Cnulii'uii, Wt, 
 
 s EJECTMENT LIMITATIONN OF ACTIONS 
 AND 8inN-TKK8l'A8K. 
 
 I'OINO KEEPEK. 
 round krriirr ObilKallon to receive rnllle 
 
 hroii^'ht to him to be inipoundud whether 
 piuperly brought or not Entitled to payment 
 of t'eeH before releaiie 'I'wn nf i)liiiiilill"n uivltlu 
 wirr ilistiuiiit'il lis iliiniM;;r fiNiHiuit mill pliu'cil in 
 ilir riiNtdily iif ili'fciiilmii iiH ki'i'pc!' of II pulilif 
 |iniiiiil. I'liiiiitilf ili'inmiiU'il IiIh cuttle Inil ilc- 
 iliiinl til piiy dcfi'iiilimt'.M climges nii the ^.'nmnil 
 lli;U till' ciittlt; wi'ic wiDiiHfiilly iinpimiiilcil mul 
 liny wviv tiiiiilly mdIiI tn pay tin i.lim').'i'H. 
 
 H'lil, tliiil (It'fi'iiiliiiit was liiimiil til rt.'ciJM' 
 ilir c.ittlc, mid wlu'tliiT jiroperly iiiipoumU'il m 
 lint iu' wiiM I'lititli'd tn lie jiiiiil hit Icu'id (.limj^cs 
 
 ill lispi'Lt tn their tVi'il allil ilrtcntiiill lirfiile tliov 
 
 Hill' I'l'lraxeil. 
 
 IHarl: V. Sh „■(,,■/, 1 U.k {■..." ;H\ I. 'I'., IIS 
 
 till' pouerN witii rsfartiiM t<> MuitK in partition, 
 nitli .vliii'h the Kijiiity Court in K.iigluiid u 'u\- 
 vested. 
 
 LrCniii V. //iM^ »•»)'(», •_• \. S. 1>., tl.'J. 
 
 (I, LImllatlon ofpowerM orrnllway vtm- 
 
 pany — |)i ffliilalitH ucir inipnMrli'il by Statute 
 to enter mid take po.sMeHHiuii of lainlK reijuireil for 
 the trauk of their railway, MtatinnM, &<:., the 
 Imiils taken to bu laid olC by iiieteN mid lioundN 
 ami a plan mid desi'iiptinii ri'i'iuded in the liegis- 
 try iif l>et'ilN fur the ciiiiiUy where the Imid wan 
 «itliate. The .Statute jirexeribed the extent of 
 Imid tn lie taken. 
 
 //«/</, that the ('onii)any could imt, by nuking 
 11 Miirvey 111' tiling a de.seriiitinn, aei|iiire a title to 
 jirivate prii|)erty lying beyond tiie .statutory 
 liniitM. 
 
 Wharfage is reenverable lllliler nilints of in- 
 ililiihitiiM iii>iiini/ni> that being the jiroper foiiii 
 
 in wliii'h to |)riM' 1. 
 
 I). Ilu/r V. I'lni'-h't,;! <i ill., .'] X. s. I)., •.'■J4. 
 
 PRUTKE. 
 
 POWERS. 
 
 1. or ANstciiiblj of Nttva Scotia - 
 
 S"^ .ASSE-MBLY, IIOISE OF. 
 
 *2. or (lirectorH of comiian)' to niortKiise - 
 
 Till' ilirectnr.sof a I'onipany inuoiporated under 
 A. t> nf bSd'J, cap. ■_', Rev. Stats, (.'hd series), 
 iiitinilecl "An Act for the incorporatinii and 
 «iiiilliig-iip nf .Iniiit Sinck Coir.panies," have 
 \w\\v\- to iiinrtgage the plopeity of the cniiipaiiy 
 t'l iliscliarge obligations for which the share- 
 ImliliTH are liable, and would continue liable in 
 liii'ii' own persons if there were no ninrtgag'j. 
 Till' |)iiwer tn borrnw implies the jinwer tn 
 iiKiitgage. 
 
 In n yash ISrhl; ,(• Pottery M '/'',/. Co., 
 
 .3X. S. l).,L'.-.4. 
 
 3. Of Equity Court over (iuardlan— 
 
 .'? ' GUARDIAN, 3. 
 
 4. Of executors to sell lands - 
 
 SV. EJECfMENT, '21. 
 
 1. Absent or absconding debtor Second 
 
 Huminon.'i may issue for same agent— It is no 
 
 nlijectinn tn u siiuimniis tn bring in an agent 
 tuider the aliscnnding ilebtnr juncess, that a 
 privimis >iinimnns has been issueil fnr the same 
 agent. 
 
 Ilali/dX Ihiiik'nui Coiii/irnn/ v. WorrttH, 
 
 .■)R. & (!., Tli. 
 
 2. Absent or Absconding Debtor pro- 
 ceedings—Practice in — 
 
 S' ABSENT OR ABSCONDING DEBTOR. 
 8. Accounting Case where entitled to an 
 
 accounting, but not to recover on common 
 
 counts— I'laintitl' levied upon the interest nf 
 
 shaiesiiien in fish secured as the result nf a tisii- 
 
 iiig voyage, and purchased the said interest at 
 
 .sale. Defendant having sold the fish under a 
 
 bill of sale, which was found by the County 
 
 Court to be fraudulent, 
 
 //(/'/, that the jilaiiititf cniild recnvcr nothing 
 
 from defendant under thecoiiinion counts, as the 
 
 most he was entitled to under his purchase was 
 
 an accounting. 
 
 Collk V. Ihll, 4 R. & t;., 134. 
 
 3. Of Supreme Court in partition suits - 4. Action -Commencement nf- The Judge 
 
 1 lie Supreme Court of Nova Scotia possesses all who tries a cause may Innk at the writ, even 
 
1039 
 
 PRACTICE. 
 
 1040 
 
 when not put in evidence, to inform iiiiiiself of , 
 tlie (late of the cotninencenient ol tiie iii'tion. 
 Ji'ohi.r/soii d ul. V. Pnijh, '_*(» N. S, H., 
 
 (« K. &(i.), 1.'). 
 
 Attirmcd on appeal to the Supreme Court of 
 Canaila. 
 
 1") S. r R., 70(5; 
 9C. L. T., 17. I 
 
 ! 
 
 .1. Admission to tlic Bar-Motion for— 
 
 Acts 1880, c. 13, 8. 6 -Order of Court, Slst 
 May, 1881 — Under an order ]iur.suaut to tlie 
 Act of 1880, c. l.S, 8. 6, providing that a session 
 s'muld he held for " calling, arguing, and dis- 
 jiosing of tiie causes I'emaiiiing on the docket," 
 
 //(/(/, tiiat the only mf)tiou that could lie en- 
 tertained, except motions relating to causes on 
 the docket, was a UKjtion for admission to tiie 
 r.ar. 
 
 I'e AdmUsioii to /he Bar, '1 K. it (i., 301) ; 
 
 '2C. L. T., HG. 
 
 6. Affidavits in answer — Discretion — 
 
 Defendant against whom a judgment by default 
 liad been regularly entered up ajjplied within 
 a year to have tlie judgment set aside and to 
 bo allowed to come in and <lefend disclosing a 
 defence on the merits. I'laintifl" was allowed to 
 controvert the nieritoriousness of this applica- 
 tion, but the Judge ileoided to grant it on terms. 
 
 Hi Id, that having so exercised Ids discretion 
 the Judge's decision would not be interfered 
 with. 
 
 Simhh', ii is not a matter of right for plaintiff 
 to reply by affidavit to applications of this kind 
 and wliere he is ])ernutted to do so lie sliouhl 
 confine himself to the establishing of such facts 
 exclusive of merits as might be considered 
 !<utticient to defeat the ai)plication. 
 
 Woodworth \. Cnlteii, li X. S. D., SQi. 
 
 7. Affldavits -Filing of— W'liereu rule 
 
 iiini for a new trial is grante<l on affidavits, tlie 
 opposite side is not bound to file his affidavits in 
 reply before producing and reading them on tlie 
 argument. 
 
 Set/i/ V. Pitrdi/, •2Thom.,4I4. 
 
 8. Affidavits in reply, J:c.— Tlie Court has 
 
 r irely permitted affidavits to be produced under 
 8. 15 of the Evidence Act, 4th R. S., c. 96, and 
 in the few cases in which they have done so, 
 such course has been rendered necessary to pre- 
 vent the grossest injustice or to vindicate the 
 standing of members of the Bar. 
 
 On argument of a I'ule to set aside a judgment 
 obtained against defendant on the ground, among 
 others, that the judgment had been entered in 
 
 fraud of defendant antl against good faith, tin. 
 Court refused to allow defendant to prinhicu 
 affidavits in support of his rule when the utii. 
 davits of plaintiff contained no new lunttLi 
 except in reference to the ti'''s of the defcinlaiit 
 to the land on wiiich the judj^ment forimil u 
 lien. 
 
 O'Mullin V. Mi' Donald, H H. v\: ('.. •Jul. 
 
 I 
 
 I 
 
 9. Affidavits-Intituling, for attaeiinunt 
 
 — A rule for attachment lor contempt of ('uuit 
 
 committed during an adjourned Term (adjoin iitil 
 
 under 4th R. S., c. 04, s. 11), can be moved for 
 
 on the last day of such Term, and it is no u\i\w- 
 
 tion to the rule that it is made returnable at 
 
 the next Tei-Hi. A rule uiki for an iittacliniont 
 
 can be moved for on the last day of Term fur 
 
 a contempt committed during the Teiiii. lint 
 
 the rule will be discharged if heailed "//((V," 
 
 &c., when there is no such nuitter depending ji> 
 
 the Court. 
 
 //( /•( /'./,,• A'oss •_> R. & C, ,V,Hi. 
 
 10. Affidavit- Intituling of, for attach- 
 
 ment--A writ of nrtiomri having been isMicil 
 out of the Supreme Court to the Ciiief Coiniiii.v 
 sioner of Mines, the Commissioner declineil lu- 
 turning or olieying tiie writ for reasons wliirlitlie 
 Court held insufficient, .iinl a rule iii-ii fur mi 
 attachment was tliereupon granted. This rule 
 was oj)])o.sed on two grfptiiids, the second liiiiij; 
 that the affidavits f>n whicli the rule was giaiittil 
 were intituled in the cause. 
 
 Held, Wilkins, J., dlwiuliiKj, that althmigli 
 the writ of n rliorari had not yet been returiicil, 
 the matter was already in the Court, ai.d tliiri,- 
 fore the affidavits were rightfully intituU'd. 
 Ill re Clydi Coal <L' Miiihui Co.. 
 
 •_'X. S. ]).,.■>(!. 
 
 11. Affidavits on which a rule is obtiiincd 
 
 must be read at t!ic argument ; and affidavits in 
 rei)ly may be used in showing cause against it. 
 ThoriK. V. Shair, 1 Old., :M. 
 
 12. Affidavits-Parties ordered to lile- 
 
 An application was made, and a rule giaiitnl, 
 to compel the parties sustaining tlie forfcitiireij 
 mining property to file their affidavits on a day 
 previous to the hearing, to be named hy tln' 
 Court. 
 
 Qnnn v. To}>in, 2 R. &(;.,m 
 
 13. Affidavit— Practice as to - 
 
 Ste AFFIDAVIT. 
 
 14. Amcndment- 
 
 Stt AMENDMENT. 
 
1041 PRACTICE. 1042 
 
 1.1. Appeal (IlKnilNSed Tor irrOKIllarity- Court hiul an inherent I'iglit to open u{) tliu 
 
 A iiile «/•>■( was taken April "ind, ISSI, to strike judgment, even after the hipse of a year, to let 
 
 ii lii.ise off the (locket on the grounds that the in a tiial on the inei'its ; that the plainlill's 
 
 |M|ieis were not on tile, and that the cause had notice of trial was had, there being no place 
 
 iiiii.'iiiated in the ("ity Court and the amount in named where the trial was to be held, and, there- 
 
 ili-])ute was less than .*4I>, being only .SIO,.")^. fore, that this Court nuist deal with the judg- 
 
 It was sl'(\\;i liy athdavit on the argument of nient as if there had been no notice of trial, 
 
 the rule tiiat the reason why the papers weie not Weatherlie, ■)., though concurring in the re- 
 
 en tile was that an ap])lication was pending in suit, (juestioned whether the provisions as to 
 
 the Court below to amend the minutes. The appeal in the Statute of IST.S were applicable to 
 
 nile iii"! was, after argument, discharged, the case, as the action had lieen connnenced pre- 
 
 .•\iinther rule nisi was taken out, December 14th, . vioiis to IS7H, and held that the pi'ovisions in the 
 
 l><s|, to strike off the cause and dismiss the ap- Act of 1H77 were not applicable, as there had 
 
 |iid on the same grounds as before. The pajiers lieen no trial, but that there was an appeal by 
 
 were not f)n file at the time of tiiking out the sec. .").S of the Act of 1S74, cap. IS, which he 
 
 tiilf »/</, but were tiled before the argument. held to be unrepealed. 
 
 Ifi/il. that this was not suthcient, and that Aiidirsoii v. Taylor, ',i K. & C., o'iU. 
 tlic iijijieal must be dismissed. 
 
 nos..(m V. Coomhis, ,s K. ,t (i., iv, ; 20. .Appeal from toiintj Court iiinlcr Act 
 
 2 C. L. T., (iOl. „f \^--^ L.itp. (i, dismissed, tlie cause not being 
 entered on the docket, and no certified papers 
 
 1«. Appeal from Count} Court Appeal on file. 
 
 lii.iu County Court dismissed, on the ground Whvtlo'-k v. liroirn, 1 H. & (i., \\i. 
 tiiiU i)apers were not certitied. 
 
 Fix.mau V. Moran, .} K. & c., i(i(i. ^j. Appeal from Couut} Court-Practlce 
 
 on — 
 
 n. Appeal n-om County Court dismissed, '^ " APPEAL, v. 
 
 tile rule for appeal not having lieen served. 
 
 .Mniimuiiw Oi-ir.-<,,:r.tof roor,^\i.&v.,K-,. 22. Appeal froHi Jud^c at Chambers— 
 
 Appeal from the decision ofaJu<lgeat Cham- 
 
 18. Appeal from County Court -Notice of '"^i-^ «^'"i>'i=' 'i«'<l'^ I'l'-''^" allowed with costs. 
 
 iiMilion for, must be headed in County Court. 'f''^»' v. /CaMu-, '_' R. & (i., l(i."). 
 Wlii'ie it was headed in Su])reme Court, the 
 
 Ccui t i)i haiiro allowed it to be amended. 23. Appeal trom Judge In Equity -Points 
 
 McDoiKthl V. /{oiinii, 7 H. & (i., '-'."» ; of practice— Under 4th Rev. .Stats., cap. !)."), sec. 
 
 7 C. L. T., .VJ. 78, an order for the hearing of an appeal from the 
 
 decision of the .Judge in Kijuity in vacation need 
 
 19. Appeal from County Court — This not be given by the Court ill kuiro, but may be 
 cause lieiug at issue and for trial in the County signed by the Judges individually, and the 
 Court at Antigonish, it was agreed by the par- appeal may be heard by the same (jiiorum that 
 ti's to refer it to arbitration, V)ut no stejjs were would be re(iuired for the regular term of tlie 
 tiiken to that end by either party, and on the Court. 
 
 cause being called on the docket on the first day The allegations contained in an Order in 
 
 "t the sittings, defendant's counsel not answer- Council nuiy be questioned in a suit, and with- 
 
 ing plaintiff obtained ju<lgnient under the prac- out making the Crown or (iovernment a party 
 
 ticein4thR. ,S. , cap. 94, sec. 202, which did not to the suit. A ground of appeal setting out 
 
 cfiiiie to the knowledge of the defendant until that the judgment is contrary to law, and the 
 
 mure than a year afterwards. Defendant then allegations and statements appearing in the bill 
 
 "htaiued a rule nixi from the County Court and dennnrer and the Statute therein referreil 
 
 ■bulge to set the judgment aside, on the ground, to, and also a ground setting out that the judg- 
 
 umiiiig otliers, that no proper notice of trial had ment should have been in favor of the defendants 
 
 en given, but the Judge discharged the rule for the reasons and grounds raised by the de- 
 
 iti4 on the ground that it had not been moved murrer, "which said reasons and grounds said 
 
 f"r within a year. An appeal was allowed on defendants" (appellants) " here repeat as fully 
 
 the grounds appearing in the rule ni.si. and to the like effect as if they were set out at 
 
 Held, that an appeal lay from the decision of length," held to be of no avail as being too 
 
 the County Court Judge under the Act of 1878, general and indefinite to satisfy 4th R. .S., cap. 
 
 rap. 9, sec. 14 ; that the Judge of the County 95, see. 73. 
 
1043 
 
 PRACTICE. 
 
 1044 
 
 A ground of appeal setting out tliat tlie .ludye 
 cnoneously deuided tliat the dunuirrer being liad 
 in ])art was l)ad altogetlier, and tiiat under tlie 
 practice of tiie Court tiie said .Judge siiould 
 have given judgment upon tlie whole reeonl, 
 
 llilil, bad as relating only to practice, aiul 
 coming within the exception in 4lli R. S.. cap. 
 !).">. sec. 7.3. 
 
 W'iiiilsor <t' Ainiapo/i-i liaihruy Comjininj v, 
 Witttrn Coiuilii-t Rnihraij Com/iain/, 
 •A R. &('., .S7(l. 
 
 24. ApiienI from Justices - Effect on 
 
 Judgment below — Defendant was pro.secuted 
 under chap, li), Rev. Stats. (3rd Series), for a 
 liicach of the law relating to the sale of intoxi- 
 cating li(|Uors. 'I'iiere was no actual service 
 ii))on him of the writ of summons, and tlie 
 atliilavit of the constable verifying the leturn 
 was informal in being intituled with the sur- 
 names only of plaintiff and defen<lant. Defen- 
 dant having been cfinvicted in his absence, 
 a])|)ealeil and tiled the necessaiy bond under tiie 
 Statute. 
 
 Ill Id, that when an a])])eal is taken and j)er- 
 fected from a decision of Justices of the Peace, 
 in a sunniiary cause, tlie judgment lielow is 
 thereby lp.<o facia vacated, and the case stands 
 for a new trial. Also, that defe^idant having 
 a])))ealed, and thus xirtually ajipearod, and 
 having avoideil the judgment below by having 
 taken an important step in the cause, it was not 
 coiii|)eteiit to him to lepudiate the juiisdiction 
 of tiie Court below, on the ground of want 
 of jiersonal service. Had he wislie<l to avail 
 himself of such an objection, he should not have 
 appealed, but should have sueil out a writ of 
 <•( rliorari. 
 
 On a second trial, no amendment adding or 
 substituting a new cause of action or ground of 
 defence will be allowed. 
 
 P' r Wilkins, .T., ilissciitimi. — A judgment 
 given as the judgment in this case was, forms 
 no exception to the pi ivilcge of ajijiealiiig con- 
 feiied by the Statute, and to issue a ci W/o)"fi)v 
 would have been liunecessary. .Judgment by 
 default having been given, defemlant, not having 
 lieen duly summoned to appear, is entitled to an 
 a])])eal. The want of .service of the summons 
 alone is ground for reversing the juilgment 
 below. A dissatisKed party a])pealing from a 
 judgment so entered cannot be held to waive 
 his right to contest the validity of the judgment, 
 not having had an opportunity of opposing the 
 -claim which the judgment recognizes. 
 
 Ha lid V. liorkird! , 2 X. S. !)., lit!). 
 
 '25. Appeal in Insolvent matters— Appeal 
 
 from an order of the County Court sustaining a 
 
 claim against an insolvent estate dismissed with 
 costs, where j)rocecdings were not taken within 
 the eight days limited by Statute. 
 
 In i-f Morton' H Eslatn, 2 R. fcC.., .'Ul ; 
 1 C. L. T., (iiU. 
 
 26. Appeal -Practice on - 
 
 S>-<- APPEAL. 
 
 27. Appearance— Effect ofappearuiice on 
 
 question of jurisdiction— I'laintitl's, cloing busj. 
 ness in the State of New York, issued an attach- 
 ment against defendant, a dsaler in preserveil 
 goods, residing in Maine, as an absent debfoi'. 
 It appeared that defendant had for several years 
 continuously carried on business through agents, 
 at Sable Island and other places in Nova Scntia 
 which defendant admitted that he occasionally 
 visited in jirosecution of his Imsiness, remaiiiiiii; 
 a few days. One of the plaintitVs swore tiiat a 
 considerable jiortion of the claim was for mnm y 
 advanced to enable defendant to carry on hi- 
 business in Nova .Scotia, and that he veiily 
 believed that a large part, if not the whole 
 claim, arose in Xova .Scotia. Defendant swoie 
 that no part of the claim in suit coidd be fm 
 indebtedness contracted in Nova Scotia, iiii.l 
 that he liatl not carried on any business with 
 plaintitl", within the Province, since the ilatc nf 
 the tiist item in the |)articulars of demand. 
 
 Jli/d, jii-r Desliarres, .J., (who dcliveinl tht 
 judgment of the Court), that facts had liciii 
 sworn to l)y plaintitl", which, if true, gave the 
 Court jurisdiction, that it was not for tlit 
 Court to look at conflicting statements in tin- 
 affidavits, and further, that defendant could not 
 raise the ((uestion of jurisdiction after having 
 tiled an ap])eaiance. Wilkins, .J., f//.«i ;''u/;/. 
 
 Ditd/n/ <t ul. v. Joins 1 H. k ('., »I6. 
 
 28. Appearance — Jiotlce of appearance 
 
 not necessary when a party appears in iieisoii. 
 Crossk-i// V. Allixoii, -1 Thorn., '-'ss, 
 
 29. Appearance -Promise b} atlorne) l« 
 
 appear — Failure to — Action was brougiit l^y 
 phiintiff against defendants, a company incni 
 porated in Nova Scotia, but resiiiing in thi 
 United States, and not Hiitish subjects. .\\\ 
 attorney in Halifax was retained by them t" 
 defend the cau.se and took some procecdin^- 
 therein, and according to the affidavits of plain 
 tiff's attorney promised to ai)pear and ])U',iii. 
 This, however, defendants' attorney ikiiici. 
 Plaintiff's attorney, after some years' ilela\. 
 applied to the (/ourt for an order reciuiriii: 
 defendants' attorney to enter an appearance hi 
 order that the Court might have jurisdicthm. 
 
lOio 
 
 PRACTICE. 
 
 1046 
 
 //</'/, that if tlcfendanls' iittornoy ha<l given 
 11 sigiie<l uiulertaiiiiig to appear lie would l)u 
 ciiinpelled to do so ; lint that otherwise the 
 ('(iiirt had no jurisdiction, and could not grant 
 tlie desired onler. 
 
 Ilillnni V. Sydney nud Loui--hur<j liaihray Co., 
 
 3N. S. 1)., 137. 
 
 30. Appellant moved one Term to traii.s- 
 
 mil the papers to the County Court at I'ort 
 Hii'id to he certified, which wa.t refused. 
 
 'I'he motion was niii'weil next Term under the 
 Statute of IMSO j)as.sed .since the former Term. 
 The Court refused a rule. A])pellant tlieii moved 
 tiidismiss his ap])eal, and a rule was gi'anted dis- 
 iiiissJMj.' the appeal with costs to the time the 
 iriotioli was i(ia<le. 
 
 MrDamihl V. Mrf)„ii;in//, '2 U. fc C, lOS ; 
 
 I c. L. T., am. 
 
 'M. A rsiinir lit, application forininu'diato 
 
 ~-.\n ii))|)lication to order the innnediate ar,i;u- 
 iiiciil of a I'ule nisi for .setting aside the ])ro- 
 tee<linj;s on the grouml of irrej^'ularity imd 
 illcLMlity rcfu.sed, then' l>ciiig only two days to 
 tlic cud of the Term, and the othci' side not lieini.' 
 jiicjiiircd for argiunent and o])posing tiie a))i)li- 
 <'iitinn. 
 
 •J X. .s, I)., :',■;. 
 
 ;{'2. Argument Canse not properly before 
 
 the Court for argument— l)cfendant's |)roj)eity 
 Mas attached liy Cordon iV Keith umler the 
 Alisconiling Debtors" Act and suliseijuenlly liy 
 ])l;iiiitill undei' tlie Dominion Act. C. iV K. 
 ii|iplied to have plainlitl's attachment set aside 
 <iii certain technical grounds. At the arg\nnent 
 iif tiie rule visi it wasdiscoveied that it hadheen 
 giiintcd hy a.ludgeat Chandlers, ami was return- 
 iililc at Clwunhers, and had Keen lirought on for 
 iUL'iiiiient before the Court hy agieement lictween 
 the attorni'ys. 
 
 //'/(/, tliat the ap))lication slio\dd he refused, 
 tiie cause not being projierly before the Court, 
 luid tiie applicants having no /ockn sfaiidi there- 
 in. 
 
 Jniniil v. rifitiiioihr, '2 \. ,S, ])., r,-24. 
 
 33. Argument — Issue used at trial 
 
 governs on —Tlie Court will on the iirgumcnt be 
 g'Vciiied as to the pleadings by the issue used at 
 tiie trial. 
 
 /''/'/""' V. X. B. i-iid Mtnrontih Lis. Co., 
 
 1 R. & <i.,i'19. 
 
 34. Argument -No one appearing for 
 
 appellant, j)laintitrs counsel was directed to 
 argue the ca.se on behalf of respondents. 
 
 Chi/nnaii v. Utintyt, ii ul, '2 II. & (J., ISl. 
 
 35. Argument Objection not enter- 
 tained at, where not taken below — 'I'he Court 
 
 i will not, on the argument of a motion to set 
 ' aside a verdict, entertain an rdijection \\ liicii was 
 not taken at the trial, where the objection might 
 iiave been I'emedied, if taken at the trial. 
 
 A(.«.«( o/(ill/li v. Cumpfiill, James, 4!S. 
 
 36. Argument - Postponement of — The 
 
 Court will postpone an argument, after it lias 
 comnicnced, where it appears to their satisfac- 
 tion that iuiustice uill otherwise lie dune for 
 I want of evidence in theatiida\ its upon a material 
 
 jioint. 
 
 O'Jlrii II V. Yviiiiii, James, 57. 
 
 37. Attachment for contempt -^ iches in 
 
 moving Jurisdiction of Court — I >cfciidaiit 
 was committed fo',' trial for having ]iiililisl!ed in 
 his newspaper ccrt.iin libellous maltei- concern- 
 ing M. .*>lioitly afterward defendant published 
 three other libellous aitiiles conceiiiii.g M., 
 w Inch were calculated to iiirtueiice the minds of 
 the jieople from whom the grand and petit 
 jiuiiis Wduld have to be drawn, and thereby 
 prevent a fair and inijiartial investigation of the 
 charge against him. When the last mentioned 
 libels weie pulilished, the depositions taken on 
 the former complaint had been returned to the 
 .Sujiii'iiie Court and were on tile tlieie'iii, and it 
 wiiuld be the duty of the piesidiiig Jiid..'' at the 
 next sittings of the Court to sulnuit the niattei 
 to the graml jury. 
 
 Hilil, that defendant had committed a punish- 
 able otTeiice, and that the )iroceediiigs weie at 
 the time so far pending in the Court as to enable 
 it to act .summarily by attachment, to jiiinish, 
 if necessary, the otl'eiicc committed. 
 
 Tlie libels complained of were ]niblishcd on 
 the .'iOth December, 1H,S,"), and the '^Kh January, 
 ISSC). The motion for the attachmeiit was not 
 ! made until March •27tli, KSSti. 
 
 Ill III, notwithstanding the la])se of time, that 
 the rule should be made absolute with costs. 
 The main object of the ai>plication was to pre- 
 vent further ])ublica.tious of a similar character, 
 and not to punish for the jiast otlence : other- 
 wise the Court Wduld have hesitated to grant 
 
 the rule. 
 
 V""/' v. U'oodirorUi, 7 H. .<: C., ISli; 
 7C. L. T.,'24ti. 
 
 38. Award — Enforcing obedience to - 
 
 Court and not Judge at Chambers can enforce 
 
1047 
 
 PRACTICE. 
 
 1048 
 
 —The iiower conferred on tlie Court liy 4th Rev. 
 Stuts., c. 109, 8. 22, to enforce ohedience to (in 
 award made under a voluntary siilnnisfsion can- 
 not he exercised hy a Judge at t'lianil)ers. 
 Sir William Yoinig, (\ J,, diixcntinii, 
 
 Co/ti,: V. Mori, I, 1 R. .<t C, 4'-'7. 
 
 30. Award, practiro on sottliis aside- 
 s'' ARBITRATION AND AWARD, is to 24. 
 
 40. Bail-bond — MIsrccital or Jndsnient 
 
 in -I'laintitV sued in tlie ( ounty Court on a hail- 
 hond given liy the three defendants, wlio pleaded 
 and proved that the execution had heen returned 
 hefore tlie expiration of tlie sixty days within 
 whicli it was made returnalile. The County 
 Court .luilge iield that this was a mere irregu- 
 larity, not touching the merits, and could not l)e 
 taken advantage of hy plea, and he gave judg- 
 ment against the tliree defendants. Defendants 
 apjiealed, and in tlu' appeal liond recited the 
 judgment as a judgment against two of the de- 
 fendants. 
 
 //'/(/, that the ajjpeal was irregular, and that 
 a motion was properly made in this Court to set 
 it aside, though the papers had hoen certified 
 and the hond ajjproved hy the (\mnty Court 
 . Judge. 
 
 n'nt'<on V. Hnin/, S R. & <i., i;?l. 
 
 41. Bail -Objection to, too late- A pre- 
 liminary ohjection was taken at the argument 
 that tile hail was defective. 
 
 //i/il, that under the ]iresent system of printed 
 cases the ohjection was too late. 
 
 Pir Righy, J. — That as the material neces- i 
 sary to enahle the Coui't to cfinsider the ohjec- 
 tion was not included in tlie ease as furnished, 
 the olijection was not o])en tfi the plaintiflTs. 
 MrDontKll <i (d. V. .l/<JAf(.s/' /•, .S R. & C, Tt2. 
 
 See, also, BAIL. 
 
 42. Capias-A second original capias may 
 
 issue upon the same attidavit. 
 
 lltilhind V. liorycr, .Tames, 4.5. 
 
 43. Capias Release of debtor arrested 
 
 under capias — Effect of— 
 
 St ARREST, I, 13. 
 
 44. Cause— 
 
 Qu(ure, whether an arhitration is a "cause" 
 within the meaning of s. 42 of c. 9."), R. S., 4tli 
 series. 
 
 In re Frcvtr and Paint, .3 R. & C, 10. 
 
 45. Certificate for costs where damages 
 
 in action for libel less than $8— In ar action 
 
 for liliel, the jury found a verdict in favor of 
 the plaintiff for .•*.") damages, and the presiijiiig 
 Judge thereupon ga\e a certificate that the lilnl 
 complained of was wilful and malicious, so ,is 
 to entitle the plaintiff to costs. 
 
 Ill Id, on appeal, that as the evidence clcaily 
 showed malice, the eeitilicate was jirupciiy 
 given. 
 
 />'«rs.s V. ira//(('<, 20 N. S. ][., 
 
 (S H. & <;.), ."i(i4. 
 St,: CO.STS. 
 
 4«. Certlorarl- 
 
 (^H'liri, whetiier, umler the j)ractiee, the writ 
 of nriiornri should not have heen allowed in the 
 first instance wititout any rule nii^i. 
 Queen v. Ward, 20 N. S. R., (S R. & (i.), Jos, 
 
 See, aho, CERTIORAIM. 
 
 41. Change of place of trial - 
 
 S'l TRIAL. 
 
 48. Commissioners— Control of Court over 
 
 — On a motion to set aside an order of aCcpiii- 
 missioner refusing to ilischarge a dehtor held to 
 hail undei' the order of another CounnissioiiiT, 
 the Court claiming a controlling power over its 
 Commissioners, passed a rule ahsolute discharg- 
 ing the defendant without costs. 
 
 Jioijiri V. Itoijiri, 2 R. & (i., 4il."i. 
 
 40. Commission to examine witness - 
 
 The (Viurt will grant a commission to exaiiiiue 
 a witness who was o\it of the Province wiieii tlie 
 suit conuuenced, hut returneil after action com- 
 menced, and left again secretly without tlu- 
 knowledge of the party re'juiring his testiimiiiy. 
 Hank of n. X. A. v. Kiith, .lames, .")ti. 
 
 See EVIDENCE. 
 50. Consent rule for submitting evidence 
 
 as special case— A rule of Court was made hy 
 consent of the parties, that the evidence should 
 form a special case to he suhmitted to the Court 
 with power to draw inferences of fact and enter 
 judgment for eitiier party fr)r such amount iis 
 the Court should determine, the rigiit of appeal 
 in either to he the same as if a verdict or judg- 
 ment were given hy a single Judge, &c. 
 
 Held, that under this consent the Court had 
 no power to entertain the case. 
 
 Per McDonald, J. — That the Court wnulil 
 not entertain the case as there were conflicting 
 statements on issues involving the (|uestion "f 
 fraud. 
 
 Howard v. Lancashire Insurance Co., 
 
 2R. &(i.,374; 
 2 C. L. T., 108. 
 
1049 
 
 PRACTICE. 
 
 lo.-.o 
 
 m. Consolidutliis artlonH — Ai'tlniis Tor 51. I'ontiiiiiaiuo of summary caiisr 
 
 iiiniiey mill laiiil iiie mo distiiut in tlu'ii' iiiituri' which has been referred to jury - - 'I'lic (iniit 
 
 lliiit thi'y (.'1111111)1 Ik! coiisiiliiliitt'cl. 
 
 A'l ;•/' V. Xi/si)ii, Jiiiiiis, .")7. 
 
 ,12. CoiiNtriictioii of sec. 127 or the I'rac- 
 
 tii:t' Act, Rov. Stilts. ("Jiul series), cap. l.'U. 
 
 /illfroir-( V. Iti IK I-, 1 Olil., ,'i7l. 
 
 «ill orili'i'ii jury in asuiiiniaiy cause where tiu'ie 
 will 111' ciinllictiiig evjiliiice. 
 
 A suiniiiiuy ciuise wliicli liiis lieeii referreil tn 
 ii Jill V cannot he ccmtiiuuMl l)y pliiintitf vitlimit 
 spcciiil iiKPtioii, 
 
 L'liinrh V. (Uinbuv, Jiinies, ."ill. 
 
 .i;J. Coiistriu'flvc service - The Court will 
 
 iinl (irder i)iil)licatii>ii or constructive .service of 
 ii writ of revivor, where the ilefemliint has lieeii 
 iilwciit from tiie Province for u])\\iirils of .«eveii 
 yiiU's, iilid it iloes not iippcar tlial In; has hecii 
 liciiil of in tiie nieantinie. I 
 
 Tiippiv V. Lirhiii-'<tnii, 1 Dlil., (iCiT. 
 
 54. ConstriicUve service, aflldavit for 
 
 I'liiinlirt'ohtaincil in the County Court an onlir 
 uiiciij- 4th I'l. S., cap. 04, sec. 44, for constructive 
 service of a writ of suinnions on tlie defendant 
 wlio was ahsciit at the time in Knglaiul. The 
 atlidavit on >\hicli the order was taken was I 
 .sulislantially in these terms: "That said defcn- 
 diiiit is alisent from this I'roviiice ami is as I am 
 informed ami verily helieve in Creat IJritain, so 
 that iieisonal service cannot lie etFected u|ion 
 him, if at all, without great exjieiisc and incoii- 
 viMiience ; that I have a good and available cause 
 of action against defendant ; that H. 1*. is the 
 agent and partner of the defendant in this 
 I'lnvince. 
 
 Hilil, reversing the decision of the County 
 ''ipiut, that the atlidavit Mas not siitticiciit, l)iit 
 that it should have set out the facts and ciictim- 
 stances necessary to make it "I'ppear to the 
 siUisfaetioii of the ijiidge," exercising his own 1 
 judgment in the matter that the case came within ; 
 the terms of the Statute providing for construe- | 
 live service. 
 
 Fostirw Itoomi , 'A H. & C., .■U4, clisiinguished. , 
 MvLi'l/aii V. liablirlii, W W. k ("., rw4. i 
 
 55. Continuance -Discretion— At the trial ' 
 
 tile cause was continued a clay to enalile ]ilain- 
 tirt' to get a deposition, which could not he 
 fi)imd. 
 
 Ilild, that this was no ohjeetion to the verdict 
 fill iihiintiff, as the Judge had discretion under 
 4th K. S., e. !U, s. 'JIO. { 
 
 /Wee tt al. v. LamU, ,S R. & C, '2(i9. ' 
 
 5((. Continuance Obtaining— The deien. 
 
 tliuit, in order to obtain a continuance on the 
 ground of a coinniission not being returned, ' 
 must shew that he has used due diligence to 
 ohtain its return in time. 
 
 Landry v. Joins, .lames, 341. 1 
 
 58. Continuance The atlidavit for a con- 
 tinuance on the ground of the absence of a 
 material witness, ought to show when he is 
 ex])ected to retuili. 
 
 /JiiCwii V. y>i</(/(i, - 'I'hom., |,'{, 
 
 59. Continuance — The non-iia} inent or 
 
 the costs of the day to defeiulant, even « here he 
 produces an atlidavit that he will be unable to 
 ]iinduce his witnesses again in coiisecpience f>f 
 his inability to pay, is not sutlicieiit to entitle 
 him to a continuance. 
 
 Cosi )/ V. I)V///«;»N, ■_' Thoni., I.S4. 
 
 (iO. Continuance to procure evidence - 
 
 Discretion of County Court Judge to grant 
 — An application to a Judge of the County 
 (.'ourt for a continuance, in order to enable 
 plaintiff to procure the evidence of a material 
 witness, was refused on the ground that a con 
 tiniiaiicc had been previously granted for the 
 same purpose, and the Judge had no jiowei to 
 order a second continuance. 
 
 I/i/il, that the Judge hail a discletioii which 
 he shoulil have exercised. 
 
 C'o.r V. t'roik'i i\ 7 It. \' <>., "Jl ; 
 7C. L. T., .V.'. 
 
 01. Continuance -Wliat to be shown to 
 
 procure — In order to procure a coiitiniiance, on 
 the ground of absence of a witness, defendant 
 must shew that he has used all jiossible dili- 
 gence. 
 
 S/iii'h V. MttxHir, James, .S4I. 
 
 62. Continuance -When refused— Where 
 
 a material witness for defendant gave notice, 
 after action brought, to tl;e defemlant's attor- 
 ney, of his intention to leave the Province 
 without stating the precise time, and afterwards 
 went away suddenly, the Court refused a con- 
 tinuance on account of his absence. 
 
 Kvith V. lladlty, James, 17(i. 
 
 63. Continuance — When refused —The 
 
 Court will not grant a rule xisi for a continuance 
 on account of the absence of a witness, when the 
 application is not made sutiiciently early in the 
 
1051 
 
 PRACTICE. 
 
 1052 
 
 Term to allow |ihiiiitiH to iinswtr the lule the 
 
 siiiiie 'I'fi 111. 
 
 Kiilh V. Tiiiimiii, Jiiiiifs, 177. 
 
 64. lontributoricN Culls upon- Pruitlcc 
 
 — In milking culls ihkhi contriWntDiies snm- 
 nionses will lie giiinted liy ii Judge to the several 
 parties, re<iiiiriiig the iiniounts for which they 
 are lialile, to lie paiil witiiin a Kpecitied time, 
 without costs, uiikss resisted. 
 
 Ill IX Xwh Brii.Ici: I'otu.nj M'/'ij. Co., 
 
 3 N. S. ])., ■_>o4. 
 
 «5. Costs- Dell viTj of bill of- liuler the 
 
 practice in this I'rovince tlie delivery of a bill 
 of costs, as rei(uired hy 3 James 1, c. 7, is not 
 necessary, costs being recovei'able as any other 
 debt. 
 Stdijijcick tl al. V. Fa>.iliuiik-<, 7 H. & (!., 399. 
 
 66. Costs refused when point not taken 
 
 below— On appeal from County Court— Judg- 
 ment for plaintiff set aside and judgment 
 ordered for defendant — Judgment was given 
 ill the County Court in favor of plaintiff, from 
 which defendant appealed. 
 
 On the hearing of the appeal, a point, not 
 raised below, was taken. Tiie Court set aside 
 the judgment, ordered judgiuent for defendant 
 with costs of trial, Ijut without costs of argu- 
 ment. 
 
 The East 1 1- a JJi nJojuntiit Co. v. MiKai/, 
 
 •JUX. «. R„ (S H. &(;.), 3-2rt; 
 9C. L. T.,63. 
 
 See COSTS. 
 61. Counsel— Klght of to be heard -The 
 
 appellant's junior counsel opened in support of 
 the appeal and the Court announced that they 
 would decide after consultation whether it was 
 necessary to call on the other side. Tlie senior 
 coiuisel then claimed a right to be heard in sup- 
 port of the appeal, but the Court refused to 
 
 hear him. 
 
 Jltili/iy V. Boak; 4 R. & (;., Sl'. 
 
 68. Counsel— RlRht to be heard- Associ- 
 ated counsel has no light to be heard if on the 
 opening the Court deems it unecessary to eall 
 upon respondent. 
 
 Iliihky V. Do(d; 3 R. & (}., "239. 
 
 69. County Court- Appeal from— Supreme 
 
 Court no power to order judgment to be en- 
 tered up in County Court — The Court dismissed 
 an appeal for irregularity in the form of the rule 
 and granted a rule directing the Clerk of the 
 County Court to enter up judgment in the County 
 
 Court f(»r the plaintitf. On a]i])eal from a de- 
 cision discharging a rule ;(('.<( to set the judgiuent 
 aside, 
 
 ll'lil, that the order of tliis Court for ciilcr- 
 iiig up judgment was in e.xcess of jurisdirlinn, 
 and tiie Clerk of the County Court had no 
 authority to enter up judgment. 
 
 Ilue.ntU V, Lyons, 3 R. & 0., •_'S4. 
 
 70. Crown Remedy against Practice - 
 
 Cannot be sued or enjoined-Reraedy by peti- 
 tion of right — 
 
 Su: CKOWN. 
 
 71. Crowi:- Suit by-Second plea without 
 
 leave— Entering judgment on default without 
 assessment -Default —Execution —In an actiuii 
 on a bond for .'?4(X) at the suit of the Crown 
 against the [iriiicipal and one of the sureties, tlie 
 defendants pleaded more than one plea without 
 leave and the plaintifl"'s attorney treating tiie 
 plea as a nullity, on the ground that the Crowii 
 was not Ipoitnd by section 17S of the I'racticu 
 Act (allowing a second or subse(|uent plea), 
 marked default and witliout liling any record 
 entered judgment without any assessment of 
 damages upon which execution was issued in- 
 dorsed to levy for a sum less than eighty dollars. 
 Ihid, on appeal from the County Court, that 
 the judgnieiit was ]iroperly set aside by the 
 County Court .Jiulge. 
 
 Queen v. Haireit it al., 3 R. it (i., '-'TO, 
 
 72. Default — Indorsing name of relator 
 
 on bond— Notice — In an action on a ctiiivrari 
 bond under chapter 75 Revised Statutes, " Of 
 Licenses," schedule K., the defendant ol)taiiiuil 
 an order iii4 for the indorsation on the writ (if 
 the name of a person to be liable for costs 
 under the practice established by the ijaan 
 V. .\frKarcli( r, 3 R. iS: C. , .337. Refore the rule 
 was made aVisolute the plaintitf indorsed the 
 name of the Clerk of License, and gave the de- 
 fendant notice. A rule was afterwards obtained, 
 making the rule nisi absolute, and giving tiie 
 defendant ten days to plead. Plaintitf, after the 
 rule was made absolute, indorsed the name nt 
 the clerk a second time, but did not give tlie 
 defendant notice of the second indorsation, ami 
 after the expiration of ten days marked a detaiilt 
 for want of a plea. 
 
 Held, that the default had Ijeen reguiiiiiy 
 marked. 
 
 Quaere, as to the practice established by tlie 
 Queen v. jIcKurclur, 3 R. & C, 3.37. 
 
 Queen v. Curia; 1 R. &G., ;iU7. 
 
lOj:} 
 
 PRACTICE. 
 
 1054. 
 
 73. nerault, removal or Ju(l{;ment by 
 
 A jiiilgnii'iit liy (lefiiull will lie stl aside as ii 
 iiiiitlt'i' (if coiirHu, iiiiil the <lefeiuliiiit iiilinitted to 
 pltiul, where the default has lieeii inaiked in 
 ci'iiM'i|iieiice of (I iiii»a|i|it'elienNi(iii on the part of 
 tiic defendant's attorney, iinless there has lieen 
 iiiiii'iisoiialile delaj' in uiakingtlie applieation. 
 
 Wiiat \s rea.^^onalile time nniHt depend upon 
 •.III' lircmnstaneeH of eaeh particular cane, 
 
 Couk V. Shiiiik r it uL, .'{ X. S, I)., '),'{(). 
 
 S,<; uU, JIDGMEXT. 
 
 «4. Defence — Lettin;; defendant in to 
 
 (let'eiul in appeal causes- In appeal causes de- 
 
 iVndiint will be let in to ilefend after judgment 
 
 ic'ainst iiini, under section "JO of the Practice 
 
 Act of IS'iS. 
 
 Doyle V. Timm/ii<, '2 Thorn., 'MS. 
 
 ;.i. Demurrer Application of Practice 
 
 Act to— Sees, (il to 70 of the Practice Act, cap, 
 l.'H, l!cv. Stat.s. (.Srd series), apply eijually to 
 ilciiiiirreis in eiinity as at connnon law. 
 
 //or 11.^1 11/ V. ,/ofiiiifoiii , 'A X. S. ]),, 1. 
 
 »«. Demurrer - Practice as to — Defen- 
 
 ilaiits, liy tlieir third jilea to plaintitl's writ and 
 ikclaralion, said, " that licfore the issuing of 
 tiit; wiit, and since the delit alleged in the same 
 Ipfcanie due, plaintitl' caused a writ to li,; issueil 
 against ilefenilant for his claim, and had already 
 iirovered judgment therefor.'' I'laintift" dennir- 
 ivil to this plea, on three grounds : because it 
 ili'l not allege that the judgment therein 
 alleged to have been recovered was foi- the same 
 cause of action ; because it did not allege tiiat 
 tlic juilgnienl was still in foice ; and lieeause it 
 'li'l not allege in what Court or country the 
 juilgnient was rtjcovered. 
 
 Ih!(l, that the <lemurrer nnist prevail. 
 
 Snnlih , that according to tiic Practice Act, 
 [iliiiititr should have applied to have the plea 
 aiiKiiileil, rather than have demurred, wiiicli 
 laitcr course should only be adopted in event of 
 tiic anicndment ordered by the Judge not being 
 iiiade within the time prescribed. 
 
 McJJoiiidd V. Lukt Mujor O'o/d Minimj Co., 
 
 1 X. S. 1)., 2W. 
 
 U. Demurrer -Practice on— Plaintlfi set 
 
 "ut ill his writ that he had recovered judgment 
 against defendant as administrator, and that, to 
 the execution thereon, the Sherifl" had returned 
 that defendant had no goods or chattels which 
 WLic, etc., but had paid the costs of the suit 
 (tile return being set out verhalim) and the 
 iletlaration proceeded, "■ IVhtrthy il appears that 
 tlie defendant hath eloigned, wasted and conver- 
 
 ted to his own use the goods," etc. Defendant de- 
 iimrred on the grounds that no ili laslnril was 
 alleged or suggested ; that while it was alleged 
 to appear by the return that the defendant had 
 eloigned and wasted the goods ol the intestate, 
 the return which was set out v^rhatim did not 
 allege or suggest a ili i(i\tiirif ; that il did not 
 follow as a legal inference from the rettirn that 
 defendant had been guilty of a dcra.itari/, and 
 further that the ili rci.i/uri/ should be alleged as 
 a fact and not stated as an inference. 
 
 llild, that the rule iiiiti to set aside the de- 
 murrer as irregular must be made absolute, and 
 that defendant, if embarrassed by the declara- 
 tion, should have applied imdcr 4tli K. S., c. !I4, 
 s. I'J4, to have it amendeil, and was preclude<l by 
 the Statute from demurring except after the 
 non-comj)liaiice liy plaintitl' with a Judge's 
 order to amend, 
 
 Ritchie E, .1,, ilisii -.i/iiiii. 
 
 Morrison v. Kaiidirk, I \\. Sc C, I4.S, 
 
 Allirmed on appeal to the .Supreme Court of 
 Canada, -J .S, C. H., l->. 
 
 •SVi; Iiij'ra, l(»l>. 
 
 «8. Demurrer to writ of mandamus- 
 Preliminary objection tiiat by the practice of 
 the Sujueme Court of Xova Scotia there can be 
 no demurrer to a w rit of mandamus, overruled. 
 
 V»"'( V. '/'/(( Wardi II niid Toini Coitiiri/ of 
 Dartmouth, .") K. it (i., .'^ll. 
 
 Atliiined on apjieal to tlie Supreme Court of 
 
 Cana<la. 
 
 Cas. Digest, •_'«,->. 
 
 t9. Deposition taken dc bene esse re- 
 moved from tiles- Foundation for admission 
 of, not laid — Wheie plaintitl's' attorney had 
 tid<eii trom the Hies of the Court a deposition 
 taken '/( In iii * >m on the part of the defendant, 
 liut tile defendant di<l not succeed at the trial in 
 jiidving the illness or absence fruiii the Province 
 of the witness with sutiicieiit clearness to entitle 
 liim to have the deposition read, if procured, 
 
 Hdd, that the fact of the deposition having 
 
 been renifived from the tiles of the Court, did 
 
 not constitute sulhcient ground for disturbing a 
 
 verdict in favor of plaintitl's. 
 
 McDonald it at. v. Mi rrltaiits' Marine Iii.s. Co., 
 
 •2K. &c., i:w. 
 $0. Deposition taken for, but not used at 
 
 first trial, may be used at second trial— Where 
 the <lep(isition of a witness had been taken but 
 not used at the first trial, in consequence of wit- 
 ness being able toatteml, but a new trial having 
 been awarded, and the witness dying previous ta 
 such new trial, 
 
105.-) 
 
 PRACTICK. 
 
 lo:.f; 
 
 III Id, that lilt; deposition wils ii'ci'iviiliic in 
 t'viili'iici' lit such si'cMind tiiiil. 
 
 Iir<in-ii V. /;■»!/., I 'riiolM., (1st Kil.l. IMS; 
 
 C.'nil I'M.), i:i:. 
 
 Si. niscretloii Matters of No apiicnl 
 
 All a])l)ciil was tiiki'li fidiii iiii older of a Couiity 
 Court .liiilgo (liHL•illll■gin;^ an oniei' ((/»/' for 
 .security for costs, wlieie it was sliow ii liiat tlie 
 plaiiitiir, alliioiijih lesident out of tiie I'roviiice, 
 was 11 native and a iiiitish suiiject and had coii- 
 xideiahle real and ]iur.s(>iuil estate witiiiii the 
 jurisdiction, and there wa.s .some evidence that 
 .she intended to return. 
 
 //i/'/, that tlie granting or refusal of the 
 order Ity the County Court Judge, was a matter 
 uf discretion, and that the discretion liiid heei: 
 rightly exercised liy the .ludgi,'. 
 
 Cnnl V. II'm/.., 4 I!. ^ C. !i;{. 
 
 S'i. Discretion Matters of-Kiile that no i 
 
 appeal in, eonlined to cases that are purely 
 discretionary— 
 
 •vm costs, :i». 
 
 83. Uismissins action Motion to dismiss 
 
 plaiiitifl's cause for waul of prosecution refused, 
 plaiiititr having been lestrained hy order at the 
 instance of defendant from i)r(wecuting the suit. 
 lidiil: uf Xoi'it Sroiiu \. liari.y, 
 
 (i K. & (i., 4!I4; 
 
 () C. L. T., .")4(t. 
 
 84. English practice When to be resort- 
 ed to — The case of a .ludge refusing an a])pcal is 
 not provided for hy our Statute, and in such 
 cases the Knglish practice is to he resorted to, [ 
 
 III ri' Caini roll' •< Clrni'<, '2 H. & C., '-'48 ; 
 I C. L. 1'., 70!). 
 
 83. Enlargment of rule nisi -On the day 
 
 when an order »/</ tii set a.side pleas was return- 
 ahle at Halifax, the defendant residing at New 
 Clasgow, his counsel moved at Chanihers for the 
 enlargement of the rule on liis own affidavit, 
 setting out that the law tirm, of which he was a 
 nieinher, had been informed hy the attorney of 
 defendant that they would receive by the mail 
 of the previous evening an affidavit showing cause 
 against the rule, but that no such athdavit had 
 been received. It was not shown that intiuiries 
 had been made at the Post Office at Halifax for 
 the letter said to contain tl e affidavit, or that, 
 in fact, it had ever been mailed at New (ilas- 
 gow. 
 
 Hi Id, that the decision of the Judge at Cham- 
 bers, refusing to enlarge the rule, should be sus- 
 tained. 
 
 McLm-M V. McNeil, 2 R. & C, 161. 
 
 HO. Entry A|)pcai dismissed Htr noii. 
 
 payment ot'cost.s under rule to enter .\pp. il 
 ilisliiisscd, wliere appt'liaiit iiavillg lle^dcl'ted In 
 enter the appeal in time, olitained a rule tocntii 
 the cau.se on payment of costH which a]ipelliiit 
 faih'd to pay. 
 
 ,/(-/('// ^/.lH V. Mr/., 11,1, 4 H. >V C.,!)| 
 
 St. Entry Ciuise slruclt of for non>oiitr} 
 
 W'iierc a cause was not entered with lin 
 I'rothonotary on the 'I'uesilay preceiliiig iiic 
 'leriii in accordance w itli tiie rule, 
 
 J/il(l, that it must be struck oil' the docket nt 
 causes for trial. 
 
 II'. v/ V. Mi/:l,r, •JThoiii., •.".m. 
 
 SS. Entry of cause Motion to re-enter 
 
 Security held a matter for separate applicatiun 
 -On a motion for leave to re-enter a cause mi 
 tile docket, made on behalf of the defeiiditiit, 
 plaintitr.s counsel applied for security on tiic 
 ground tiiat the clefemlanl, who was caiiyiiiL' 
 tile a])peal, was absent finni tiie Province. 
 
 Ill III, that tliere must be a .scliarate apphci- 
 tion. 
 
 MiLiuhlniiw K'liiiiili/, '2i)'S.S. l!., 
 
 (S 1!. k C), .Sl'l); !)C. L. T., .-iii. 
 
 89. Entry -Non-entry of rule— Where a 
 
 rule is not entered for argument by the p;iity 
 wlio obtained it within the tiist four days of ilic 
 Term in which it is returnable, andno allidavits 
 accounting for tlie delay are tiled liy iiiiii williin 
 the time, llie ruh^ w ill, on motion of the o|i|iii- 
 site party, be discharged with costs. 
 
 Morion v. Cniii/iliill, I Old., (ilis. 
 
 90. Entry Ke-entry allowed on terms 
 
 Appellant allowed to enter cause, on payiiifiit 
 of costs of rule to dismiss a])peal for non-eiitiy, 
 wiiere the failure to enter it resulted froiu ini»- 
 understanding between counsel engaged. 
 
 JohuMoii V. Mi'LiMii, .S H. k. (i.. .'il ; 
 'IV. L. T.,(i(i;i. 
 
 91. Entry— Re-entry— Cause allowed to 
 
 be re-entered on payment of costs, the diliiy 
 having been accounted for. 
 
 Potti')->< it al. V. Taylor, ~, \\. k i^., ;tS,"). 
 
 92. Entry— Re-entry of cause on payment 
 
 of costs -Application to be heard after cause 
 called and passed — Argument ex parte— 
 The appeal was called in its turn on the docket, 
 but was not ready for argument, the case having 
 only been settled the same day, and papers were 
 ready very shortly after. 
 
 No injury having been shown to have resulted 
 
10.)7 
 
 PRACTICE. 
 
 1058 
 
 finiri tliu ilflay, uiiil tlio {>urtif.'8 atandiug in tlic 
 saiiK.' |Kwitioii, for uiiytliinj{ thivt appeared iiot- 
 ttitiiMtiiniliiig tlie ladicH of the appellant, leave 
 wiis giaiitcil to re-enter liie cause on payment 
 l)f ccists. 
 
 When a cauxe or matter is ealleil cither party 
 ims n ri>;ht, if the oilier do not appear, to argiio 
 it i.</*a»7p, and judgment will in due course bo 
 
 pi ounced suhjeut to an application, hased on 
 
 |iio|)tT ground-s, liy the other party, to l)e heard. 
 
 PiiyMiit V. Itujdow, (i K. & (J., 85 ; 
 
 6C. L. T., 142. 
 
 It;). Entry-Kule nisi not entered cannot 
 
 he heard -A rule hi.<« returnahle at L"hamlier.s, 
 liiit not entered on the list of causes for argu- 
 iiu'iit, cannot ho heard. 
 
 Jtnitelf V. h'oHs, '2 Thorn., 231. 
 
 »4. Equal division of Court— Where the 
 
 Omit was eijually divided on a rule for new 
 trial tiie rule dropped. 
 
 Emhrc.e v. Noikn, 3 R. & G., 82. 
 
 05. Equal division of the Court — On an 
 
 i.i|iial division of the t'ourt the modern practice 
 sueiiia to he that the party who has obtained a 
 veiilici as a general rule retains it, hut the 
 CiMut lias a discretionary power to order a new 
 iiiiil i)r a re-argument, that the Court may re- 1 
 liise liie costs of argument where neither party j 
 prt'viiil.i, and that on appeal from inferior tribu- 
 nals the decision l)eh)w is affirmed. 
 
 flnuj V. The Sled ComiHiny of Canada, 
 
 3 R. &C., 506. 
 
 06. Equitable considerations should be 
 
 given effect to by the Court— 
 
 S'litlitf, that under sec. 3, cap. 124, Rev. 
 Stats. (;<rd series), the Court is required to inter- 
 fere when e(iuita1>le considerations arise in a 
 legal suit (even though no exercise of its equita- 
 lile i)i)wer8 has been solicited by the parties, or 
 (alltil forth by the pleadings), and to provide 
 siicii lelief as the circumstances of the case 
 ileniaiul. 
 
 ■Uel-iaac et al. v. McLeod, 1 N. S. 1)., 2.32. 
 
 9!. Equitable replication without leave- 
 Departure -In an action of trover for logs, de- 
 fenilaut pleaded denying plaintiff's properly and 
 possession, and plaintiff replied setting up an 
 e'luitahle right to the logs. The Judge at nl.^ 
 priw< ruled that there was a departure in the 
 pleadings on the part of the plaintiff, who had in 
 "is repliciition set up an ecjuitable interest in the 
 property instead of the legal right asserted in 
 lii'< 'ledaration, and he directed the jury to find 
 ^ verdict fur defendant, which they did. 
 34 
 
 The Court refused to set asiile the verclict, 
 •Smith •)., liolding that there was no evidence of 
 property in the plaintiff. 
 
 Weatherbe, J., that the replication wuh only 
 
 a reply to a bad plea as shown by the pleadings, 
 
 ChrUtit V. Thomax, 3 R. & <i., 2(»;{. 
 
 98. Equitable rights aRer Judicature 
 
 Act— 
 
 He/(l, that after the passage of the Juiiica- 
 ture Act, the Judge presiding at the trial was 
 bound to give effect to the eiiuitable rights of 
 the parties, though the cause had been at issue 
 previously. 
 
 Mi-PhevHon v. McDonald, 6 R. A V,., 242 ; 
 
 6C. L. T.,443. 
 
 The judgment in this case was affirmed on 
 appeal to the .Supreme Court of Canada. 
 
 OC. L. T.,3S5j 
 12 .S. C. R., 410. 
 
 99. Equity and Common Law Courts — 
 
 Electing tribunal -Restraining proceedings 
 elsewhere — The plaintiffs sought in this suit 
 discovery of facts necessary to enable them to 
 plead to an action at law brought against them 
 by the defendant, and the writ contained a 
 prayer for relief in respect of the matters of 
 which discovery was sought. On taking out 
 the writ, plaintiffs obtained an order restraining 
 defendant from further action in the common 
 law suit, and defendant, having filed his answer, 
 sought to have the restraining order discharged. 
 
 Hdd, that the plaintiffs, having sought relief 
 in the Etjuity Court, had elected this tribunal, and 
 could not at the same time make the matters 
 referred to in their writ the subject of pleas to 
 the action at law ; that the evidence sought for 
 was, therefore, not pertinent to the defence in 
 the action at law, and that the restraining order 
 having been granted solely on the ground that 
 discovery was necessary, must be discharged, 
 irrespective of the sufficiency of the defendant's 
 answer ; that the present suit, although it could 
 not be treated as a suit for discovery, still con- 
 tinued as a suit for relief, but that plaintitfs 
 might discontinue the suit and plead the facts 
 set out in the writ as a defence to the action at 
 law. 
 
 The Cape Breton Co. (Limited) v. (lishorne, 
 
 R. E. D.,240. 
 
 100. Equity- Appeal ft'om Judge In — 
 
 Not certified by counsel — Amendment refused 
 — The allowance of an appeal by the Judge in 
 Equity does not dispense with the .statutory 
 requirement of a certificate by counsel. The 
 
lo:)0 
 
 PRACTICE. 
 
 \m) 
 
 aliMMii! of MUch ccrtitii'iite in not ii dtrical onor 8(i by ttii; iiuinncl on I'illuT HJiic, mid llu'ic mis 
 
 wliiili can \>v iiint'nilril. no picii on ciiniliilili' f^roiimlM. 
 
 (Jimn V. Iknwniii, (I R. & *!., M» ; Mi'KurJi v. ^AV/ia //o. Co., "J K. k <;., .'f.'ii ; 
 
 11 (". L. T., 1.S7. '-'(". L. T.,!i» 
 i 
 
 101. Ediillj -Appeal from JiiUkc In In. 103. Eqult) Practice as to HcttinK out 
 
 terr.retation of expreswon " matters of prac- admismons, &c.. in Bill Tliu Knylinl. rule iImu 
 
 tice" in R.S., cap. 95," Of procedure in Equity" c.mverwitionB with and iidniiBHionH l.y .Kfin.i. 
 
 -Tl,.. ..xprcHsion, .ittciK of pnicticc," u«..m1 "•'!« nmnot \m given in cvi.U'mc without Imving 
 
 in stction 7.'* of nip. !»."», K. .S., 4tli suricH, "Of 
 
 procedure in Equity," as not lieing sulijcct t<> 
 iijipt'iil, ref<'rH only to tiioHe matters of mere pro- 
 cedure in which tlie iludge Iwin h discretion, Imt 
 not involving any legal princijile. 
 
 The decision of tlie .Judge in K<iuity on the 
 following ])oiiit was helil not suKjcct to ajipeal 
 
 heen set out in the hill of conqtl.iint is ncit 
 a])|>iica1)le to the practice of tiie Couri of ('limi- 
 eery in this I'rovlnce. 
 
 Cii/ilirell il ul, V. KiiixvKUi (t nl., .lames, Sits. 
 
 104. Evidence - Account books Only 
 portions referred to and read can be com- 
 That the answer to the plaliitltral.illiirof'essed mented on to jury-On the trial of Is.su.h ..t 
 to be the persona! answer of the defendant, but f'li-'t, an account book was produced, kcpi l.y 
 was not signe.! by him. ] plaiutitf, an.l the attention of the Court Wiis 
 
 The following grounds of apjieal were disul- turned to certain entries, 
 lowed, as involving mere matters of practice : \ fl<''l, t»"'«. although in going into an acc.i.nt- 
 
 1. That no exceptions can be taken to an i'lg, tvcry portion of the book could lie refciicd 
 answer in the E(iuity Court of Nova Scotia, but [ to by botii parties, yet on tlie trial of the is.miis, 
 all objections must be taken by demurrer. ""ly those portions of the book could be icin 
 
 2. That none of the exceptions to defendant's ] mented on to the jury which had been reftrif.l 
 answer were taken In time. t'> ""'1 read. Where the trial took placi' .t 
 
 3. That the exceptions were not set down for Halifax before the Judge In E(|ulty, and the vir- 
 argument in the time allowed, an.l could not be diet was found on September '-'."itli, and the rule, 
 so set down afterwards without an order. having been refused by tlie Judge, was not tuken 
 
 4. That the parts of the bill alleged to be out until October 3()th, 
 
 insufficiently answered were not set forth in the //fW, that assuming tiie plaintitr to iiavc luul 
 exceptions, nor referred to with certainty. , a right to take out a rule under the Statute, i- 
 C round of appeal that the judgment is contrary 
 to law and eiiuity hc/d too general. 
 
 H(l(l, that defendant, iiavliig undertaken to 
 make an account part of his answer, could not 
 be heard to .'•■iiy that the bill did not ask for it. 
 
 Where" plaintiil' took thirty-one exceptions to fendant about to leave the Province may In 
 defendant's answer, on four of which defendant \ examined de halt e.s,sf;. 
 
 succeeded on appeal, plaintiff was ordeied to | Bamahy v. /W^, 2 Thoin., 'J.'il. 
 
 pay four thirty-firsts of defendant's costs of ! 
 
 appeal and defendant twenty-seven thlrty-firsts ! ^^ ExCCUtlon irregularly IsSUCd and 
 of plaintiff's ; the costs to be set off. | i„j,ffective-Not sufficient ground for setting 
 
 ^Mvteer V. )r«//ncp, 5R. &(!.,504. ^gj^^ ^^ effective execution subsequently 
 See mirra, 77. jggued — Costa refused to successful party 
 •where incurred in consequence of his default 
 102. Equity Court, transmitting cause to- -On the 16th October, I«S1, plaintiff recoverol 
 In an actio:-, by plaintiff against defendants on a ; judgment against defendant, and on the .'fr'l 
 policy of insu-ance, a third party claimed to be : October, 1885, issued an execution for tin 
 interested in the insurance and forbade payment j amount, describing the judgment as of the ImIi 
 to plaintiff. Defendants obtained a rule nid \ July, 1883. Finding his mistake, he (lircitnl 
 for an interpleader, upon argument of which the Sheriff to return the execution as not siitis- 
 before a Judge at Chambers, the Judge of his tied, which was done, but not until a levy li'i ■ 
 own motion transmitted the cause to the juris- 
 diction of the Judge in Equity, under 4th R. S., 
 c. 89, 8. 6. 
 
 Hdd, that the Judge had power so to trans- 
 mit the cause, although he was not moved to do 
 
 had allowed too nnich time to elapse, and liinl 
 by the delay lost his right to do so. 
 
 Eaton V. Weathtrh, R. K. l).,4v 
 
 105. Examination de bene esse -A de* 
 
 been made on defendant's goods. Plaiiititf thtii 
 issued a second execution, correctly, foUowiii; 
 the judgment, and under the second executi ':i 
 the goods were sold. 
 
 Defendant applied to set aside the first aiil 
 
1061 
 
 PRACTICE 
 
 1002 
 
 mi'driil ixcriilioiiM and all piinri'iUnKii of tlif action for aHHault anil laJHc ini|iriHonnit'nl di'lVii- 
 
 SliciitT iliiriiinilcr, ami an apiiliiatinn wiio nuuli- <lant pk-ailfil juHtifying thu nrr«»t umlor an ux- 
 
 oti liilialf of plaiiititr to nvive ami Viuvw lliu ciMition jhhiu'iI l)y a Slipcniliury MagiHliatt! ami 
 
 HtKl cxirutiiin. plcadrd npj-cially that ixtriilion had hufii iHHiii'd 
 
 //./'/, that thf tiitt cxcfntinn lii'iiij,' irrcKiilar, coniinjindiu),' him to levy for the aniotiiit fioni 
 iitiil rmi suili an I'.Xfiiition ax, u hen irtiirned otf iho floods and chattclN of the dulitor, and for 
 witistinl, would 1)0 a har to any fiitnru claim want of Koodn to taku tho Imdy ; and thu plain- 
 fur tin- amount of Ihi- judgment, and HO protect till' licicin not having any j^omcIh or ohattdn to 
 tilt ilifciidant UH well an hcivc the plaintiff, it Malinfy thu wuno thu defendant huiein att and 
 cdiiM not interfere with thu ixMiiu of an uffuetivu heiiij,' mucIi consttvhlu aH aforuHaid hy virtue of tho 
 i'xcciiticiii,<)r jnntify thu nutting aMidu of lliu exu- Haiil writ coniniittud thu phiinti,., Ac, 
 intiiiii liiNt iHHiiud, which annwurud tiiu purjiosu //,A/, that thu Htatutory replication unahlud 
 of hiith partiuH. the plaintifr to avail himsulf of thu ground that 
 
 ('(Wis wuru refiiHcd to plaintiff, though huc- he had goodH whuruon the constahlu could have 
 
 ccwful in resiHting the main application, as it levied. 
 
 wiw thnaigii his default in irregidarly ittuuing I MiKtnzit v. Oldimi, .'J K. & (;., WM. 
 thu tir»t execution that the diliicidty arose. | 
 
 MriJowjai/ tt ai. v. Unffni, 7 K. & (i., i^Aj ' \\\, Executlon wllhiii 8ix ycars - Time 
 
 7 V. L. T., ■S47. for issuing a «euond— When a lirst execution is 
 sued out witliiu six years of juilgment, it is not 
 
 101. Execution -Alias —Second original nucusaary to issuu the nuxt execution within six 
 
 --Wlure the original and alias writs are not years from the issuing of the one last previously 
 
 siilKiienlly connected, the Court will reject tlie issued. 
 alias clause as surplusage, ami sustain the writ 
 aa a second original. 
 
 JMland v. Boryer, Jainea, 45. 
 
 Cochran v. Bell, 'A N. ,S. 1)., 488. 
 .?.e, also, EXECVTIOBT. 
 
 iau V *i 1 ^ . .. , **2' Exhibits, Identincatlon Of- Where a 
 
 OS. Execution-Indorsement on writ of deed was referred to during the argumuntheforc 
 
 - t >s not necessary that there should he an »,„ p,,,, Hench of a rule -on' for a new trial, and 
 
 m,lo,8e,ncnt on the writ of execution of tho was ol.jecte.l toon the grou.ul that it did not hear 
 
 mcKle n. winch it is to be executed. j,„ (..i^j,,,, „f ^j,^ ,,„,,j,^ ^^,,,„ ^^-^^^ ^,,^ ^.,^^,^^ ,^^ 
 
 Snthtrland v. Whddtn, •_' Thorn., 410. ^ ,„•„• ^„-,^, tut the minutes described the deed 
 
 and mcntione,; it as being tendered and read, 
 
 109. Execution put In evidence — When the Court decided that the identification was 
 judgment also should be put in — To an action sutlicient. 
 
 lor cdiivciting goods of the plaiutitF taken by ' Tupptr v. Camphull, 2 R. k C., p, 70. 
 
 the ilefcuilant, a .Sheriff, out of the possession of 
 
 plnimirt"s father, who had formerly owned the I 113. Extending rule— Where an Injunc- 
 gfioils, ikfeudant, attacking the transfer on the tif)n from the Kquity Court was outstanding 
 groiuiil of fraud, pleaded a justification under an I'ustraining the plaintiffs from proceeding in 
 execution, and on the trial put in evidence the i their common law suit, the Court refused to 
 execiitidu, hut not the judgment. extend a submission in the conunon law suit, 
 
 Tlie .Judge instructed the jury that if a trans- applied for to enable the parties to proceed with 
 
 fer had taken place to the plaintiff, the defendant 
 slioidd have shown the judgment as well as the 
 execution. 
 
 lldd, that this was no misdirection. 
 
 Ilaniion v. McLean, 3 R. & C, 101. 
 
 On upjiKti to the Snpnme Court of Canada, 
 
 the reference whenever the injunction should be 
 remov ed. 
 
 (liihome V. Cape Breton Co., 2 R. & C, 374. 
 
 114. Foreclosure— Reference to master- 
 Where puisne mortgagee forecloses, it must, in 
 
 HM, that the Sheriff was entitled nnder his l''*", !!'!!/"'^'"A'!' L'^!''^^"'"\^°_" ;^'"'^'""' *** 
 pleas to have it left to the jury to say whether the 
 plaintift' had shown title or right of possession to 
 'he goods in ijuestion, and therefore there was 
 
 iiisiliret ion. 
 
 McLean v. Hannon, 3 S. C. R., 706. 
 
 find what is due to prior incumbrancers. 
 
 Crtujhton v. Moore et al., 2 Thoni., '2'27. 
 
 See, also, MORTOAGE. 
 115. Foreign companies — Proceedings 
 
 against— An application was made by Wallace 
 to rescind an order made for the payment to the 
 
 110. Execution to take the body for want , ^ ., 
 
 ofgoods— Plea— statutory replication— To an | plaintiffs of the surplus proceeds of a sale of 
 
locn 
 
 PRACTICE. 
 
 l()i;4 
 
 di-fnniliuitu' liiiiitK on tlif kiouihI flint tl.i' jiiilj;- 
 iiifui miiU-r wlii.:li iiliuiilillH iluiiuud lliu pin- 
 vwih, luul which wiiH takfii l)j tl'jfault, wuh 
 ImHfrl on notim (jivt-ii witlioiit uiiy ciiiisiilfnitiiin. 
 AViilliicu luul taken prcKX'i'ilinK" ii^ainiit the ilo- | 
 fcndiintM under 4th H. S,, ". 1(7, h. '-'(l, as a foreign j 
 company doing ImsinenH in thin l'rovini:«! hy an ! 
 agonl, l)iit tho agent had not been served. i 
 
 //<Ai, that for want of m-rvico on the agent | 
 Wallace wa« not in a position to make the' 
 application. 
 
 Ahiion it- Mavkintoxh v. Coh llarhor Laud Co., ] 
 
 1 H. &(}.,.M9«. 
 
 See FOREIGN COMPANIES. 
 
 116. ForelKii corporation)!- Proceedings 
 
 against —'I'll'-' proviHioiiM of the Practice Act, 
 which <nal)le proccedingH to he taken in the 
 Supivnii! Court agaiimt a defendant abroad after 
 service, do not extend to suits against corp<ira- 
 tionti. ] 
 
 liel/oni V. Sydney <(• LotiMurii It'y Co., 
 
 •2N. .S. 1).,7.3. 1 
 
 117. Grounds In rule -The ground was 
 
 taken in the rule to quash the irrfiomri that the 
 bond liled was irregular and bad in substance 
 and form. I 
 
 H<ld, that under this ground the objection' 
 could not be taken that a bail piece should have 
 been liled, instead of a bond. 
 
 Tu]>i>er \ Murphy, .S R. & (i., 173. 
 •SVe CERTIORARI. 
 
 118. Guardian of lunatics — Suit by the 
 
 guardian in his own name— In an action by 
 and in the name of the guardian of a lunatic, 
 for a debt due tho lunatic, the defendant did 
 not go into his defence, contending that the 
 action was wrongly brought, and judgment in 
 the County Court was given for plaintiff. On 
 appeal, the Court allowed plaintiff to amend, 
 and, defendant contending that there was a 
 defence on the merits, a new trial was ordered, 
 but without coats, first because the new trial 
 was an indulgence to defendant, as the Court 
 might in such a case give judgment for the 
 plaintiff on the amended record ; secondly, be- 
 cause, had the defendant entered on his defence 
 in the Court below, a new trial would possibly 
 have been rendered unnecessary by his success. 
 Seaman v. Porter, 4 R. & G., 292 & 495. 
 
 119. Injunction dissolved -Plaintiff hav« 
 
 ing obtained an injunction to restrain the sale 
 of a mining property in which ho was interested, 
 the defendants made answer under oath, nega- 
 tiving all the allegations on which the plaintiff's 
 claim to relief was founded. 
 
 H'/il, that credit luUHt be given lo tin; 
 
 answer, and the injunction inust 1)« dinMoKiil 
 
 (frauil not having been uliown) under I lie piiiMi- 
 
 pie laid down in Chaidin v. Whiii, S Vik., M'. 
 
 JInmilton v. Xorlhup, 2 N. ^^. D., Jii.l. 
 
 130. Il\|unCtlon Principles on which la- 
 junctions are granted, and practice as to athiluvitu 
 on applications therefor discnssucl. 
 
 Hamilton tt al, v. Uronn et al., 2 OM., 'im. 
 
 Sen INJIMTIOS. 
 
 I'Jl. Insolvency — Judge no power lo 
 
 order meeting of creditors to be held out of 
 hi8 jurisdiction — Where the Judge of ihu 
 County Court for District No. 2, Luncnljuii,', 
 Ac, passed two orders, one for postponing ii 
 meeting <if creditors called to consider an otfeiiif 
 eomposition, and ordering tiie assignee to return 
 the estate until diseharge applied for, mid the 
 other ordering a meeting to be held at Ihilifax, 
 tho Court, holding that the Judge touiil m 
 order such meeting out of his own jurisdiction, 
 set aside both orders, as both had a coiiiiiioii 
 object, and directed tho costs of the appeal to lio 
 paid out of the estate. 
 
 /(, >f. SnIhM-land, ,T R. & C, 8!l. 
 
 See INSOLVEXCV. 
 122. Indorsement of claim for interejit 
 
 on writ— A special indorsement on a writ cluim- 
 
 ing interest, on a sum named, from the date ii 
 
 j the writ until judgment, gives a plaintiff >") \%\\^ 
 
 to interest in cases whore he is not otiierwi^' 
 
 ! entitled to it. 
 
 j NwriH V. Taylor, 1 N. S. 1).,4!)1. 
 
 ' 123. Interlocutory order— Appeal flpom- 
 
 ' An order was made for a commission to ..Au'iiiiie 
 j a witness dated on a day when the Court mm 
 I sitting i« banco and signed by the Prothmiotary 
 i in the usual form of orders granted Ijy tlie 
 , Court. 
 
 Held, that as the order was granted hy t!f 
 
 ' Judge before whom the cause was tried, aii'l 
 
 ! signed by the I'rothonotary at his instance, ' 
 
 must be considered as an order made liy tlir 
 
 Judge in the course of the trial, and the mw 
 
 to set it aside was premature. 
 
 Rigby, J., disHbutin;/. 
 
 Quirk V. Twinimj et al., 5 R. & G.,'^' 
 
 124. Interlocutory order, to compel ei- 
 
 ecutor to pay into Court the proceeds of sale-'. 
 in a suit brought to remove the executor fron' 
 office, refused, the affidavits on which it «»■' 
 founded being answered in every essential l«r 
 ticular. 
 
106." 
 
 PRACTICE. 
 
 1060 
 
 Suniiimry rt'ineily proviUfil liy I'rohiite Act i Notice nf u|>|)i<iii'uik'(- nut iiccuHMiiiy w hen a 
 rt'i'iiiMiiii'iKlcil, party iipiiuiirM in pt'iHon, 
 
 Siuith<r.i tl nl. V. Smilhirs, K. K. U., iKl Croi.ikill v. Allison, '2 Thoiii., 'JHM. 
 
 1*25. Interpleader- Tbe County Court has 
 
 |iii«fr t" i^taiit iciiff iilnler tliu Ht'ctioim of tlic 
 IW'tice A'Jt "Of Interpliuilcr." 
 
 Cooi>ir V. My/w, '2 R. & C, 3H-.'. 
 
 I'iA. Interpleader- Prartlrc as to— 
 
 SVe INTEKPLEADEK. 
 
 127. InterroKatorleH — Tbe Court will 
 
 (ink'i' a <k'fuii(laiit corporation doin^ buhiiivHk in 
 Ni)va Scotia, tiiou^'h incorporated aliroail, to 
 iiiiswtT intorrogatorit'8, luidei 4th K, S., u. Ott. 
 The cid'icerH of siicli company can liu interro- 
 pttt'il, tiioiigh not niuntioneil )>y naino in tliu 
 coniiiiiKKiou to interrogato, 
 lUirtiiiil. V, Wistirti Union Tt/fi/ra/ih Co., 
 
 '2 K. A C, 535. 
 
 See INTERROGATORIES. 
 1'2S. IrreKUIarIt) AttackInK proceedings 
 
 for— Where tiio fntficiency of the attidivvit to 
 liiild to liail i.M attacifcd, tlie rule is to set aside 
 till' iinler. and not tiie capias, 
 
 N'o sv.ppleinental affidavit will he received 
 after a party appears to show cause against the 
 iinler iiiii. 
 
 A piirty cannot ^hjoct to the suHiciency of the 
 uttidiivit to iiold. to hail, unless it is expressly 
 rtiited as a ground in his onler nini. 
 
 Miir/ihi/ V. Trenholm <J a/., 2 Thorn., '228. 
 
 129. Irregularity In replevin writ - No- 
 tice on writ— Amendment— A writ of rcplev'n ; 
 hiiviii^; hecn issued without the notice re(|uire(i 
 to lie indorsed thereon liy tiie Practice Act, I 
 
 flilil, tliat it was irregular, hut might he 
 iiiiiendod on payment of costs, ! 
 
 Cameron v. Cameron, 1 N. S. 1)., 170. j 
 
 130. Irregularity In writ — Waiver-^ An 
 
 appeiiiiiuce and plea, under protest, served Imt 
 lint tiled, held no waiver of tiie rigiit to move 
 til miilie ahsolute a rule uim to set aside the writ 
 olitaiiied before the appearance. i 
 
 Carty v. Boniitit et re/., .3 R. & C, 293. 
 
 131. Irregularity— Nullity — Appearance 
 
 — \Mieii pleas were pleaded l)y defendant in 
 person, and the plea tiled was suhscribed, and 
 tiie one served was not, 
 
 ^tW, though an irregularity, it did not make 
 thi-'pleaa miUhy, and entitle plaintiff to judg- 
 ment Ijy def-'ut. 
 
 13*i. Irregularity - Waiver -The writ of 
 
 summons will not lie set aside for any defect 
 
 I therein aftei appearance and plea, whether the 
 
 defect makes the writ a nullity, or only irregidar. 
 
 A defect which makuH a proceeding a nullity 
 
 will bo considered as waived when the cause 
 
 has gone to another stage in which the validity 
 
 of the proceeding has eeaNed to be important. 
 
 Rank of Xora Scotia v. AtvKerrow, 
 
 ft R, *(;.,'.'7.1. 
 
 138. Irregularlty-Walver of - The affl* 
 
 davit on which the ap|)lication was intended to 
 be made was served separately fnmi the notice, 
 although both were served in due time. The 
 Statute had the words " with the notice." 
 
 Hdil, by .McDonald, C J., and Thompson, .J., 
 that the Eervice need not be concurrent, as 
 "with" meant "also." 
 
 II)'ld, by Weatherbe, Rigby and Thompson, 
 .1.1., that the irregularity, if any, was waived by 
 the defendant reading an affidavit in answer to 
 the one so served. 
 
 Smith V. Smith, 5 R. ki'<., 42. 
 
 134. Issues— Framing In equitable rausc 
 
 —When issues for a jury are to be framed in 
 e(|uitable cases, the proper course is for either 
 or both parties to take out a summons fir rule 
 niti, setting out the issues they desire to have 
 tried before a jt'ry, (in<l ujion argument lieforo 
 him the Judge will determine whether such 
 issues are proper. 
 
 Humphrey v. Jonen, 2 Thom., 7. 
 
 135. Judgment, application to xet aside 
 
 — An application to set aside a judgment, on the 
 
 ground that it was entered against good faith, 
 
 and contrary to all understanding between the 
 
 attorneys of the parties, must be made witiiin a 
 
 reasonable time, Where such an applicaticm 
 
 was made nearly eight months after the signing 
 
 of the judgment, the Court refused to entertain 
 
 it. 
 
 MrCurdy v. Munlod; I N. S. D., 409. 
 
 136. Judgment— Action on, or revivor- 
 
 Where a party has obtained a judgment against 
 another he may proceed upon it at common law, 
 and is not compelled to proceed by writ of 
 revivor. 
 
 Benjamin v. Campbell et al., 2 N. S. IX, .320. 
 
1067 
 
 PRACTICE. 
 
 1068 
 
 137. Judgment, arrest of- A motion in 
 
 arrest of jiiilgmeut may lie iiiaile for any sul)- 
 staiitial defect wliicli appears upon tlie face of 
 the reoord. If the ohjeutiou he valid, the wliole 
 proceedings will he set aside, hut the party may 
 be indicted again. 
 
 An indictment is clearly had wiiere two 
 offences are charged in a single count. 
 
 Wiiere the names of third persons cannot he 
 ascertained, it is sufficient to state, " a certain 
 pei'son or persons to the jurors aforesaid un- 
 known." 
 
 Queen v. niack-i>; 1 N. .S. 1)., .SS.*}. 
 
 See CRIMINAL LAW. 
 
 138. Judgment by — Defoult for penaity 
 
 — riaintitf, as Inspector of River Fisheries, 
 brought an action for a penalty against defen- 
 dant, and the latter not appearing, entered up 
 judgment against him for .*!1(), the full amount 
 of till! penalty wiiich could l)e imposed. 
 
 // Id, tliat before doing so, tiie plaintiff sliould 
 have given some proof of tlie ott'ence before a 
 Judge of the Court, who would then ilecide, and 
 <lii'ecl what penalty should be imposed. 
 
 Mason V. Mahar, I N. .S, I)., 314. 
 
 he entered for plaintiff, rather than .send the case 
 
 back again, 
 
 Harrison v. Smith, 7 R. & < !. , 510 ; 8 C. L. T., TiS. 
 
 143. Judgment -Riglit of piaintilTto, wbere 
 
 action settled before delivery of decision in 
 his favor — I'laintitf recovered a verdict on a 
 policy of insurance for S'2000, subject to the 
 opinion of the Court. After the argument nf u 
 rule jji'.si, and before judgment pronounced on ilie 
 rule, tiie parties entered into negotiation.s fm u 
 settlement, the result of which was that plaintirt', 
 about a fortnight before the] delivery of jmlg- 
 ment, accepted 81(XX> in full of his claim and 
 delivered up his policy to the company. .Imig- 
 ment was afterwards given in his favor for the 
 full amount of the claim, and a rule nini Wiis 
 taken by defendants to compel tlie jilaiiititl' in 
 tile a discontinuance, or in tlie alternative tiiat 
 all proceedings under the judgment slioiihl la- 
 stayed. The Court refused to interfere with 
 the plaintiff's common law right t(j enter jmlg- 
 ment, but stayed execution for thirty days, lluit 
 defendants might take such steps as they might 
 be advised. 
 Peppi/ V. Xor/h British Ins. Co., 1 11. & ( !., 4Sii. 
 
 Ste, also, JUDfiMEXT. 
 
 139. Judgment by default-Setting aside 
 
 — An affidavit to set aside a regular judgment 
 by default must, in general, lie made l)y the 
 defendant himself, and not by his attorney. 
 
 Tlic deponent in sucli a case must swear to 
 a personal knowledge of the facts, ami not i accounts, said amount to be paid from pr 
 merely to his belief. 
 
 144. Jurisdiction as to amount - Debt 
 
 reduced by cash payments — I'laintitf sutfl 
 in the County Court on an agreement tiiat 
 he should receive 88CK> as the full amount 
 due him on a settlement of jiartneisiiip 
 
 ; ceeds of partnership debts to l)e colliicted. 
 
 Malom v. Di'tn/nn, 1 Old., «97. 1 l^efendant contended that none of the debts wer. 
 
 ; collected before November, 1881, so that iiotiiing 
 was due until tlien ; that the paynient.s creilileil 
 by plaintiff, being previous to that date, cnulii 
 not be connected with his claim, which \va< 
 therefore beyond the jurisdiction of the Court. 
 Held, that the payments were made on account 
 
 140. Judgment — Date of — The date of 
 
 pronouncing tlie decision of the Court is lield to 
 be tlie date of judgment in cases of appeal to 
 the Privy Council. 
 
 Burton, Adtn'r v. Burns, 2 R. & C, 349. 
 
 141. Judgment 
 
 of the agreement, and that the debt having iuiii 
 reduced by cash payments, the plaint itf'.s claim 
 Entry of, ordered in „.,is „ithin the jurisdiction of tlie Court. 
 
 favor of appellant —All the facts being before 
 the Court, and it appearing that the plaintiff 
 could not succeed if the case were sent to a new 
 trial, judgment was ordered to be enteied for 
 the defendant with costs. 
 Roach V 
 
 Preedy v. Baldwin, 5 R. & (i., n" 
 See JURISDICTION. 
 
 145. Jury-Application for, on clrcull- 
 
 i Held, that the objection that the applicatim! 
 
 Ware, 7 R. & (i., 330 ; ! for a jury was made to and the order giaiitol hy 
 
 7 C. L. T., 377. tiie Court on circuit instead of a Judge of tin 
 
 Court, and the objection tiiat the venire «aj 
 
 142. Judgment on appeal from County , not Hied within thirty days were obviated h.v 
 
 Court ordered for appellant— On appeiil from , section 52 of chapter 70, providing that piocted 
 
 a judgment given by the County Court for defen- ings should not be set aside upon any niire 
 
 dant, j technicality. 
 
 Held, judgment having been given for defen- ! lHreXictafixandAtlanticPailu-ay,2V..k(':-'''-j 
 dant on a former trial, judgment should now j ^ 1 C". L. T.,iii 
 
lOfiD 
 
 PRACTICE. 
 
 1070 
 
 14<(. Jury discharged where legal tiucstlons 
 
 only are to be decided— New trial refused— 
 I'laiiititr beuame owner l)y purcliaso of all tiie 
 lights ami property of several companies iiicor- j 
 porafpil l>y various legislative enactments, for 
 the piir])os(! of constructing or comjjletinL' a canal 
 lictwoen Halifax Harbor and the IJasin of Minas, 
 aiiil as sucli owner, brougiit an action of trespass 
 iigainst (lefentlant for cutting and carrying away 
 a i|iiiuitity of ice from the surface of a portion of 
 the first Dartmoutii Lake, lieing a portion of the 
 cuiuil property. 
 
 The learned .7 udge before whom the case was 
 tried, after iiearing tlie evidence for the plaintifl' 
 (iiul the defendant, disciiarged the jury, and 
 (iidured judgment to be entered for defendant, 
 (111 the groiuids that tlie place where the acts of 
 trespass were alleged to have been committed 
 ii:i(l never l)een legally expropriated, that tlie 
 corporations tiirough which plaintiff claimed 
 liail no light to tiie ice but only an easement in 
 the waters, and that the title to the locus 
 involved legal (piestioiis only, leaving no matter 
 of fact upon which it was necessary to take the 
 opinion of tiie jury. 
 
 Hil(U on appeal, that the action of the learned 
 .Tiitlgc in discharging the jury was not ground 
 for a new trial, especially as plaintitT's counsel 
 at tlie trial, had lieeii asked if he could sug- 
 gest any matter of fact to be submitted to the 
 jury, and had admitted that he could not. 
 
 Pir .James, .J. — That the .-Vets of incorporation 
 cniifeiTcd upon the coinpanies under which 
 |ilaiiilitT('liiiiiied no title to the soil or bed of the 
 lakes, and that, even if defendant's title had 
 lieen expropriated, it would have been only to 
 the extent necessary for the purposes of tiie 
 liii'.al and wcnild not have interfered with defen- 
 ilaiii's title to the bed of the lake nor his right 
 to use the waters cither in a fluid or congealed 
 ennilitioii. 
 
 /'•(• .McDonald, J. — That the case was one in 
 wlii'h, under the old practice, the Judge would 
 have been justified in leaving notliing to the 
 jury, but, on the contrary, nonsuiting the 
 [ilaintitT; and that, under the present rules, a 
 verdiot and judgment could l)e entered instead 
 of a non-suit as formerly. 
 
 Fairhankt v. Crcii/hfon, 20 N". S. R,, 
 
 (8 R. &(;.), «:?. 
 
 Ste, rt/.so, JURY. 
 
 U1. lache.s— Motion to rescind order- 
 Accounting for delay — Rule iiin to rescind an 
 "iilcr of a Judge at Chainljcrs, fr()in which 
 there was an appeal, discharged ^yliere the 
 motion was delayed, and the affidavits read on , 
 
 the argument did not, in the opinion of the Court, 
 suffic'iently account for the delay. 
 Crilteriden v. Tht Municipality of OuysUordinjh, 
 
 4 R. & G., 0-_'. 
 
 148. Laches- Must he accounted for — 
 
 Rule to open ju<lginent by default refused where 
 the defendant was fully aware of all tiie pro- 
 ceedings and failed to account for his delay in 
 moving. 
 
 Cumminijx v. Gladwin, 4 R. & (J,, IDS. 
 
 On appeal to the Sujrreme Court o/ Canai/a, 
 Hfhl, tiiat the judgment appealed from was 
 
 not a final judgment within the meaning of sec. 
 
 \\ of the .Supreme Court Amendment Act of 
 
 1S"9, and was not appealable. 
 IIi:lil, also, that if tiie Court could enlfilain 
 
 the appeal the matter was one of procedure, and 
 
 entirely within tiie discretion of the Couit below, 
 
 and the .Supreme Court of Canada would not 
 
 interfere. 
 
 (iladiriii v. Cinnminiji, Cas, Digest, '2-H>. 
 
 149. Laches -Waiver of objection by — 
 
 Plaintiff brought suit against defendants as ad 
 ministrators of the estate of John Heaton t(. 
 recover an amount due on an account stated and 
 interest, and obtained judgment by default, no 
 answer having been put in ; after which it was 
 referred to a Master to ascertain the amount due. 
 At the investigation all the parties were repre- 
 senteil by their respective attorneys, and the 
 Master rejMjrtcd a sum due by defendant. .Some 
 of the defendants having objected to the report 
 on the ground that many of the charges com- 
 prised in the settlement had been originally 
 entered against another party, and that no right 
 of acti(m existed against John Beaton's estate, 
 
 Ili/d, that the objection was not now open, 
 but should have been taken in an answer to the 
 
 writ. 
 
 McXiil V. liiatoii el at., R. E. D., 14.4. 
 
 *:' SITR.1, 104. 
 
 150. Levy -Instructlons-In Instructing a 
 
 sheriff to levy an execution, it is irregular to 
 
 direct lum to levy for interest on the amount of 
 
 judgment. 
 
 FU.iiji-r V. Taylor, James, \'M. 
 
 151. Levy - Remedy where Sheriff has 
 
 improperly omitted to levy— -If a Sheriff has 
 
 improperly omitted to levy, the remedy is by 
 
 action against him and not by rule to amend ids 
 
 return. 
 
 Crei<ihton et al. v. DanitU, James, 304. 
 
 152. Levy-When It may be made -From 
 
 what time eflectual— When the appraisement 
 
 i 
 
1071 
 
 PRACTICE. 
 
 1072 
 
 shows that the appraisers were sworn ami the 
 SherifPs return refers to the appraisers' warrant, 
 tiie swearing of the appraisers siiHiuiently ap- 
 pears. 
 
 " Service on the agent of process to appear," 
 in sec. 26, c. 97, of 4th Rev. Stats., means 
 sei'vice on the company's agent of process 
 re(|niring the company to appear. 
 
 Levy uniler the attachment under that chap- 
 ter may he made before service on the agent. 
 
 The k'vy is effectual from tlie time of seizure 
 of the property, and not merely after appraise- 
 ment and selection of tiie property to be held to 
 resjwnd the judgment. 
 
 The. Mtrchaitt'i' Hank v. The Sfed Company of 
 Caiinila ( Limit nl ), ."> R. A (t., '2.5S. Stt 5th 
 Rev. Stats,, c. 104, O. xlvi, R, 4. 
 
 Sec LEVY. 
 
 lo3. Merger— Doctrine of- Judgment was 
 
 taken for plaintiff in .lanuary, 1874, on a pro- 
 missory note of defendants to one Steadman, 
 inihirseil to plaintiff, who issued an execution, 
 and afterwards, assigned the judgment to Stead- 
 man, by wiioni a second execution was issued. 
 Defendants sought to have this execution set 
 a*'ide, cm tlie ground that the judgment had been 
 taken in violation of a settlement with Steadmai?, 
 who had agreed to accept, and had received a 
 mortgage in uill payment. The evidence was 
 conflicting, and tlie Court, holding that there 
 was no foundation for tiie dortrinc of merger, 
 discliarged the rule with costs. 
 
 McDonald v. Mitchdlet al., 3 R. & C, "274. 
 
 134. Minutes of Judge— Explanation of, 
 
 given by Judge — 
 
 H<:lil, that the Court in hanco couhl receive 
 the explanation of the Judge as to the nature of 
 the (jucstion to which a .statement of defendant 
 on the minutes of evi<luiict; was an answer. 
 Royal Canadian Ins. Co. v. Smiih, 
 
 .-)R. &(!., 3-22. 
 
 Tlie judgment in this case was reversed on 
 
 appeal to the Supreme Court of Cana<la, ISth 
 
 Xorcmhcr, ISS.'f. 
 
 Cas. Digest, 216. 
 S,:t MINUTES OF JUDGE. 
 
 lo3. Motion to rescind Judge's order— 
 
 CompanieR Winding-up Act— Application to 
 rescind winding-up order — Necessity to 
 move Judge first — Affidavit as to information 
 and belief (before the Judicature Act)— State- 
 ment of Judge — Before an application is made 
 to the Court to rescind an order of a Judge, ap- 
 plicati(m should be made to the Judge who 
 granteil the order, and the Court will require 
 positive proof that such application has been 
 
 made. Affidavit of information and belief, and 
 
 statement of the Judge in Court, held not sutli- 
 
 eient. 
 
 In re Stael Company of Canada (Limited), 
 
 5R. &(;., 17. 
 
 150. Motions- The Court will not lioar 
 
 motions npon days set down for arguniiiiis, 
 except in special circumstances, 
 
 Scott V. Awpis, James, ]H;i, 
 
 157. Motion to rescind Judge-s ordcr- 
 
 Hilil, that an appeal from the order of Young, 
 C. J., having been refused, a motion to rescind 
 the order was properly made. The 1'ractii.c 
 Act, 4tli R. S., e. 94, s. 8, provides tliat in idl 
 cases appeals shall be allowed wliere jiartits 
 think themselves aggrieved by Judge's orders. 
 The case of a Judge refusing an appeal is ikjI 
 provided for by our Statute, and in siicli cuses 
 the English practice has to be resoiteil to. 
 
 In re Cameron's Circus, 2 K. I'c (i., 24S. 
 1 C. L. T., Toil. 
 
 158. New trial -When granted— 
 
 Set NEW TRI.ll. 
 
 150. Non-.|oinder of parties entitled us 
 
 tenants in common--Verdict sustained -TliKr 
 of tlie plaintifl's in an action of ejectnieiil wiiv 
 (dearly shown to be entitled to the possessidn nf 
 the land claimeil, as tenants in coiiininn \t'illi 
 others who were not joined in llie action iis 
 plaintiffs. 
 
 IIc/il, that the verdict, which was for jiliiiii 
 j tiffs, could not be set asiile <m the grouml tlwit 
 ' the other tenants in common were not joined, or 
 j that the venlict did not state the proimrtinn ::i 
 I which plaintiffs were entitled, tlie practiit; at 
 \ this Court ilitferiiig in this respect fnjin tlif 
 English practice. 
 
 Ellis (t al. V. Colonial Market Coin/iuiii/, 
 
 3 R. & C, lilii. 
 
 See PIE.UIINC. 
 
 160. Non-suit on argument -riaintllflirld 
 
 a bill of sale of a pair of oxen from Mcl.end tlit 
 owner, who continued in possession, the bill "t 
 sale being duly recorded, and upheld as valid hy 
 the jury. After making the bill of sale, Mibcml 
 was arrested at tlie suit of defendant, and, on 
 swearing out of jail, assigned the oxen to tlio 
 defendant, who sold them at auction to Wiidc; 
 whereupr)]) plaintiff, un<ler a writ of replcviii 
 against defendant, took the oxen out of the 
 possession of Wade, who was no party to the 
 suit. Plaintiff having obtained a venlict, the 
 Court set the verdict aside, with cost.s, iioii- 
 
1073 
 
 PRACTICE. 
 
 1074 
 
 suiied the plaintiff, giving the defendant the 
 oostR of tlie action Imt not of tlie trial, and 
 iliii'cted tlie replevin bond to he put on file, 
 siihject to the order of the Court or a Judge. 
 
 /V«.s«^r V. Ilrnre, 3 R. & ('., 01. 
 
 See NON-SUIT. 
 
 161. Notice of examination of wltneHs - 
 
 Wiiere a notice for the e.xaniination of a witness 
 ill Imii (sue. at seven o'clock, p. m., was left at 
 the otBce of the opposite attorney shortly after 
 tour o'clock in tlie afternoon of the previous 
 iliiy, it was helil sufficient. 
 
 Tohin V. Dunn, 2 Thorn., 4(C2. 
 
 102. Notice of motion— InsufB lent notice 
 
 of motion— Party appearing under, entitled to 
 costs though not bound to appear and not 
 called upon— A motion on liehalf of defendant 
 for judgment for want of prosecution was refused 
 'III tlie ground tiiat plaintiff had heen restrained 
 finin prosecuting the suit at the instance of 
 tlie defendant. 
 
 A rule having been moved for disniis.sing the 
 luntidii with costs, defendants' counsel sought to 
 tiike iulvautage of the fact that he liad fuily 
 given two days' notice of his motion instead of a 
 month's notice, and that consequently his notice 
 M.is insufficient, and plaintiff was not bound to 
 .ilipciir. 
 
 Ill Id, tiiat plaintiff was not bound to take tlie 
 lisk (if not apjiearing and, although not called 
 iijion, was entitled to costs. 
 Bank oJ'Nom Scotia v. Bnrxs, 7 R, & G., ISl ; 
 
 7 C. L. T., 247. 
 
 163. Notice of motion— Length of tlme- 
 
 5th R. S., c. 104, O. LX., Rules 2 and 7, and 
 Order LIL, Rule 5 — The notice of motion for 
 an urcler .setting aside a replevin order, was 
 strved at fi.HO, p.m.., Friday for the following 
 i'lR'sday. An ajipeal from the order made on 
 sutli notice was allowed. 
 
 ill' Donald v. McKciizip, 20 N. S. R., 
 
 (8R. & O.), 282; 
 8C. L. T., 4.-10. 
 
 164. Notice of motion to set aside order- 
 Irregular in omitting to state grounds — 
 Security for costs -Order for, must fix time 
 within which security to be given— 5th R. S., 
 c. 104, 0. LXVIII., R. 3— An order for security 
 fur c(wts, and staying proceedings in the mean- 
 time, was obtained from a Judge at Chambers, 
 A]Mil, 1st, 188fi, but without fixing any time 
 witliiii which the security was to be given. On 
 ilie 8tli Jidy following, an ex parte order was 
 
 I granted dismissing the action for want of 
 I prosecution. 
 
 Ihid, that, no time having been limited for 
 
 putting in the .security, the order dismissing the 
 
 ' suit was irregular, and should not have been 
 
 made, but that pLiintiff could not succeed in lii.s 
 
 i motion to set aside the order for irregularity, 
 
 : because he had not complied with Order Ixviii., 
 
 Kule .■}, by stating in liis notice of motion the 
 
 objections intended to be insisted on. 
 
 No costs were allowed, as the ground was not 
 taken below. 
 
 McKee.n v. Poa-elt, 2(» N. S. R., 
 
 (SR. &0.), 104. 
 
 165. Notice of non.pros may be given at 
 
 I the close of the second sittings after the cause 
 I is at issue, although the cause has not been 
 ' called and passed. 
 OeiKrnl Mining Aswriation v. Victoria Coal 
 
 Mininij Co., 3 R. & C, 479. 
 
 166. Notice of trial not indorsed on writ 
 
 — Defendant sought to set aside a default on the 
 ground that there was no notice of trial indorsed 
 on the tlie w-rit of summons although there was 
 a notice to appear. 
 
 Held, reversing the judgment of the County 
 Court Judge, that the default was regular. 
 
 Riuen V. Hermes, 5 R. tS: (>., 552. 
 
 i 167. Notice of trial— The time for serving 
 
 I notice of trial not being fixed by the new I'rac- 
 I tice Act is to be regulated by the Practice of the 
 I .Superior Courts of Common Law in England. 
 
 Where short notice of trial was given and ver- 
 dict taken for plaintiff subject to the objection, 
 the verdict was set aside. 
 
 DrumiHond v. Carritt, April .JOlh, lSo4, 
 
 James, 2(58. 
 
 168. Notice of trial 
 
 See TRIAIi. 
 
 160. Nullity- After notice of non-pros a 
 
 peremptory undertaking was given for the next 
 term at Pictou ; but plaintiff failed to try his 
 cause. Defendant's counsel moved for judgment 
 of non pros and the Judge took the papers and 
 reserved his decision. After the Court had 
 closed at Pictou, the Judge was applied to for 
 his decision at another Court and initialled the 
 rule for judgment, upon which the judgment 
 was signed by the Prothonotary at Pictou. 
 Plaintiff, treating the judgment as a nullity, 
 proceeded to the trial, in which defendant took 
 no part. 
 
 //lid, that the plaintiff could not under the 
 
1073 
 
 PRACTICE. 
 
 1070 
 
 circumstances proceed to trial, and the verdict 
 must be set anide. 
 
 Fra-.er v. Frnnfr ff a/., 3 R. & (i., 1'2S. 
 
 170. yulllt} — DeAiuU marked too soon 
 
 not a nullity — Wliere the plaiiititt' nmrked a 
 defiiidt on tlie twelfth day after the service of a 
 writ, witii the particulars indorsed tliereoii, and 
 entered up judgment on the fourteenth day 
 thereafter, 
 
 Ili/d, that the default was not a nullity, and 
 even if it were, the plaintiff was not entitled to 
 sign judgment on the ftnu'teenth day. 
 
 Maiitirt v. Phinmy, '2Thom., 429. 
 
 111. Order for appeal - Couniy Court 
 
 Judge restricting gfi'ouuda of appeal — An order 
 for appeal was signed liy the Judge, setting out 
 a numher of grounds, Init the Judge in his certi- 
 ficate left it to the Appeal Court to say wliether 
 an appeal could he allowed in an action of tort 
 when the judgment was under $40. 
 
 Hi Id, that the appellant could not he confined 
 to this single ground of appeal, the Judge having 
 a discretion under the Act of 1878, c. 9, s. 14, 
 to allow an appeal on any point of law or prac- 
 tice in any matter tried or argued before him, 
 and liaving granted an order .setting out the 
 grounds on which appellant wished to rely. 
 
 McDonald v. SfiMri/, 3 R. & C, -f20. 
 
 112. Order for the delivery of interroga- 
 
 tories, and for discovery on oath before 
 defence filed sustained— Discretion of Judge— 
 An order was made by a Judge at Ciiambers 
 giving defendant leave to deliver interrogatories 
 to a number of officials of the jilaintifT Hank, and 
 requiring such officials to nutke discovery on 
 oath of certain documents, correspondence, etc. 
 At the time the order was granted no defence to 
 the action had been delivered. 
 
 fff/d, that under Order xxxi. Rule 1, tiie Judge 
 had a discretionary power to nuike such order 
 before the delivery of the defence. 
 
 A /so, that the objection to the order, on the 
 ground that it ordered discovery and inspection 
 as well as the delivery of interrogatories, could 
 not be sustained. 
 
 The Commercial Hank of Windsor \. Beckwith, 
 
 7 R. &G.,527; 
 8C. L. T., 60. 
 
 173. Particulars in trespass— Order for 
 
 particulars of trespasses — Action dismissed for 
 non-compliance or evasive compliance with an 
 order requiring plaiutifT to furnish particulars of 
 alleged trespasses. 
 
 Fairbanks v. Hartshorne, 6 R. & G., 493 ; 
 
 f)C. L. T., 540. 
 
 174. Parties-Caleb Putman conveyed a 
 
 lot of land to the persons named in the deeil ii,\- 
 the purpose of building a Presbyterian chuirli, 
 and for a burial ground, to hold to the >aii| 
 grantees for the aforesaid purpose only. 
 
 Hehl, that even siiould the grantees iniani- 
 mously concur in ciianging the u.se of the propci ty 
 from that of a I'resbj'terian church, etc., siu.ii 
 cliange coulil not be effected, but the pro|R'i ty, 
 on being applied to other uses than tho.^e fur 
 which it had been conveyed, would rtviit. 
 Objections having i)een taken that the pro( tul- 
 ings should have been by information in liit 
 name of the Attorney-General, 
 
 Hi'lil, tliat tiie plaintiffs had riglitly piu- 
 ceeded by the writ substituted in this Court liy 
 .Statute for the bill in Cliancery, and, iliai 
 although the writ stated tliat jilaintiffs wcic 
 acting on behalf of all the Presl>yterian ineiiilitis 
 of the congregation, even that was not necessary, 
 
 j as they might, under 4th R.S., c. 95, s. 19, liavt 
 
 ! maintained the suit on their behalf alone. 
 
 The statement was made in botii writs tliai 
 by certain legislation the title to the lands in 
 (juestion was vested in the l'rcsl)yterian Chuiih 
 
 ! of Canada, but the legislation referred to (IM 
 not aflect the title to the property in <iuesti(iii 
 
 I in these suits. Defendants not having deiiuineil 
 
 I to the writ, 
 
 Hild, that they could not reasonably ask tn 
 
 '■ have plaintiff turned out of Court becaii.se tiii' 
 Presbyterian Church was not a party to the 
 suits when the Court was satisfied tliat it coulil 
 not be made a party, and that tlie proper par- 
 ties were before the Court. 
 
 JJmKjlas et al. v. //aires ct uL, R. K. 1)., 147. 
 
 175. Parties -Cliose in action — Rlgiit to 
 
 I sue in name of assignor of— 4th Rev. Stats.. 
 
 1 c. 94, s. 356— W. C. A. made a bill of sale of 
 
 \ goods to S. & M., and shortly after made a con- 
 
 , veyance of the same property to plaintiffs in 
 
 I trust to pay off the debt secured to S. & M. 1 v 
 
 ! their bill of sale, and to pay off' also all other 
 
 ' creditors signing the deed, among whom wen- 
 
 S. & M. Plaintiffs had before suit assigned the 
 
 debt for which they were now suing to tlit 
 
 original assignor, W. C. A. The J udge before 
 
 whom the cause was tried gave a verdict Im 
 
 defendant. 
 
 /Inld, that the rule nisi for a new trial slmuM 
 be discharged. 
 
 Ptr McDonald, C. J., and McDonald, J., that 
 I the prior assignment of S. & M. was no defeiia, 
 j as S. & M. had joined in the deed to pluintitii. 
 I but that plaintiff's could not maintain an action 
 in their own name under 4th Rev. Stats., cli. fl4, 
 ; s. ,356, having assigned the cause of action tu 
 
1077 
 
 PRACTICE. 
 
 1078 
 
 W. C. A., nltlinugli it appeared that the suit was 
 hnmglit for the lienetit of \V. C. A. 
 
 Pit Tlioinpaoii, J., that the property and 
 iiiniiey sued for were not tlie property or iiioncy 
 of phiintifTs, hut of S. & M., who were not 
 estopped hy joining (as creditors) in tiie con- 
 veyance to phiintitl'it. 
 
 Per Rij;l)y, .1., that tiie defen(hint had sus- 
 tained his statutory j)lea tluil liefore action 
 the ilel)t had been assigned to \V. C A., l)ut 
 tiiat it would iuive heen competent to phiintilTs 
 to reply that they were suing for the henetil and 
 with tlic consent of \\ . ('. A. 
 
 Thomjiton ct al. v. Ackhiirii, (i R. «fe (!., 1 ; 
 
 6C. L. T., 13(5. 
 
 no. Parties — Co-tenants -The omission 
 
 to insert the names of co-tenants is a fatal oli- 
 jei'tion when taken at the trial, and need not l)e 
 pk'ftded in abatement. 
 
 Doaiif V. McKi nil)/, .lames, :i2H. 
 
 1J7. Parties -Ejectment against ofHcers 
 
 of the Crown— 15y Revised Statutes, chapter 
 .^(i, section l.'i, " The Hnancial and general man- 
 agement " of the Nova .Scotia Hospital for the 
 Insane is "vested in the Commissioner of Public 
 Works and Mines," and, by section 47 of the 
 same chapter, the title to the property, and the 
 lauds belonging or attached to the same, " is 
 coMtirnied and vested in the Comniissiouer of 
 Piililic \Vorks and Mines, for the time being, 
 and his successors in othce, in fee simple for the 
 pm'i)oses and uses of such hos])it.'.l." An action 
 of ejectment having been brought To lecover 
 possession of the premises, a motion was made 
 to set aside the writ and proceedings, or for a 
 perpetual stay of proceedings, on the grounds : 
 l.st. Hecause such action will not lie against 
 the otficcrs of the I'rown or (Jovernment, and 
 cannot he maintained against them in respect of 
 such jiroperty as that sued for. 2nd. Hecause 
 suo)\ action and proceedings cannot be taken 
 against the Crown and its otiicers. 3rd. Re- 
 cimse the defendants hohl the property sued for 
 herein as the otticers of the Crown and (Jovern- 
 ment, and not otherwise. 
 
 The motion was refused. 
 
 Semhli;, that where the Act vests the property 
 in the otHcers of the Crown, ejectment to test 
 ■tlifi title will lie. 
 
 Kfarneij v. Cree/maii ef al., 4 R. & (J., 228. 
 
 178. Parties — Insolvency - Attacking 
 
 fraudulent instruments — Defendants, being 
 adilt'tl parties, resi. ted a proceeding taken by 
 plaintiff, as assignee of a mortgage, to foreclose 
 the same <m the ground that the mortgage was 
 
 nuide in contemplation of insolvency, and was 
 voiil under the In.solvent Act, the mortgagee 
 having afterwards lieconie insolvent and assigned 
 under the Act. 
 
 IIkIiI, that defendants, seeking as creditors 
 
 I of the insolvent to impeach the mortgage, solely 
 on the ground that it was in contravention of 
 the Insolvent Act, should have called on the 
 assignee to take proceedings to set it aside, and 
 
 'upon his refusal, should have applied to liie 
 .Judge for leave to proceed in his name; and 
 further, that defendants should have proved their 
 claims in order to entitle them so to proceed. 
 
 j Qimtn, whether the defendant.'i could contest 
 
 i the validity of the mortgage at all, without 
 
 i bringing a cross-action. 
 
 (I rant v. Whivhr el al., R. E. 1)., .'{HS. 
 
 i 
 
 119. Parties— Insolvency— Kiglit of cred. 
 
 i itora to attack fraudulent instruments — 
 McDonahl and Raker having a lien on propeitj- 
 of the insolvent defendant, under a recorded 
 judgment, a suit was brought l)y them as co- 
 plaintitls with the assignee to set aside a jiulg- 
 mcnt next j)revious to theirs, alleged to have 
 been fraudulently obtained. 
 
 //(/(/, on dcmuiic)', that .said McDonald and 
 Raker had been properly nuide parties to the 
 suit, and that although under the Insolvent 
 Act (187.">) the assignee had the exclusive rigiit 
 to sue for the rescinding of instruments made in 
 fraud of creditors generally, and should then l)e 
 the only phiintitf in the suit, it was otherwise 
 where the instrument was nuule in fraud of 
 certain individuals irrespective of the other 
 creditors. 
 Pafti-rsoii, .■l.v.s/(/;((( , (/ al. v. Archibald ff al., 
 
 R. K. 1)., .31. S. 
 
 180. Parties — Joinder - Payment made 
 
 jointly but from individual funds— An action 
 was brought to recover -^ICK), placed by plaintiff 
 in the hands of the ilefem'lant for the purpose of 
 betting on a boat race. The bet was made in 
 the plaintitTs name, but the money was contrib- 
 uted by several parties in small su'ns, and, al- 
 though no arrangement was nuvde, plaintiff 
 stated in his evidence that several parties were 
 interested to their respective amounts, and if he 
 had won they wouhl have expected their money, 
 and he would have been oldiged to pay them. 
 Plaintiff countermanded the bet before the de- 
 fendant parted with the money, and there was 
 nil clear evidence to show that defendant, as 
 betting agent for plaintiff, had become bound 
 before the bet was so countermanded. 
 
 Held, that the contributors could not sue 
 jointly, but tiiat plaintiff was entitled to recover 
 back, not the whole amount, but only his own 
 
1079 
 
 PRACTICE. 
 
 1080 
 
 slmre of the money (U'posrteil, for wliich jtiilg- 
 iiient must lie enturcil in the I'oiirt l)eh)w. 
 
 tioxn V. J/arrinijtoii, 'A K. & G., 325; 
 3C. L. T.,44. 
 
 181. Parties -Joinder of Surplusage- 
 
 Tlie tnistees of j)iililic property for tlie (^omity 
 of C'umlierhmil hrriuglit an notion of ejectment, 
 and at tlie trial ohtiiineil an oriler to amend tlie 
 <leelaration, and added as plaintiffs tlie trustees 
 of Amherst Court House grounds. The verdict 
 was for j)laintiffs, but after argument in ba.7ico 
 it appeared that only the trustees of public 
 property, etc., were entitled. 
 
 //f/fl, that the joinder of the trustees of Am- 
 hirst (^ourt House grounds was mere sm'plusage. 
 
 Truntf (.K of I'lihlic J'ro/iirfy, ttv. , v. Kirr, 
 
 3R. & C.,317; 
 1 C. L. T., 708. 
 
 182. Parties — Mailing party defendant 
 
 instead of co-plaintiff — .Matthew Chisholm 
 mortgaged land to ArchibaM and James C'liis- 
 liolm, the former of whom assigned his interest 
 to plaintiff, who brought suit to foreclose the 
 mortgage against Mattliew Chisholm alone. 
 Su')se(juent!y the writ was amended by making 
 Archibald and James Chisholm and John T. 
 Siiiiih defendants, the latter having taken an 
 assignment of the mortgage from Archibald and 
 James Chisholm subsequent to the assignment 
 by Archibald Chisholm to plaintiff. 
 
 Ilfild, that Arciiibald Chisholm, having a 
 separate interest, had a riglit to assign it to 
 l)laintiff; that altliough plaintiff could not sus- 
 tain his suit as originally brought against the 
 mortgagor alone, the writ, as amended, brought 
 all the parties interested befoie the Court, and 
 that although the ordinary course would have 
 been to make Smith a co-))laintiff, yet as he 
 denied plaintiff's rights under tlie assignment, 
 he iiad been properly made a defendant. 
 
 Sihky V. Chisholm it al, R. K. D., 167. 
 
 183. Parties — Non-Joinder of tenant in 
 
 common as plaintiff in action for use and 
 occupation — Mesne profits— J. H. and C. H. 
 wero tenants in common of an undivided parcel 
 of real estate. Plaintiff bought C. H.'s interest 
 un<ler a judgment duly recorded against him. 
 r. H., and his widow, after liis death, remained 
 in ])ossession of the land, and some time after- 
 wards plaintiff brought an action for use and 
 occupation, adding a count for mesne profits. 
 Xo contract, express or implied, between plain- 
 tiff and the widow of C. H. was proved. 
 
 Hddy that no action would lie for use and 
 occupation, the widow occupying adversely ; 
 that no action would lie for mesne profits, as 
 
 ! there had been no previous recovery in ejectment 
 
 by plaintiff; and that even if a contract iuid 
 
 j been proved to sustain use and occupation, the 
 
 ' non-joinder of J. H. as u plaintiff was fatal to 
 
 the action as brought. 
 
 UCain v. Uottfrman, 2 R. & C, 'JSO. 
 On apptal to the Sujyremc Court of Cnnudn, 
 Hi Id, 1. An action of trespass for iiitMie 
 protits is consequential to the recovery in 
 ejectment. 
 
 j 2. Even if such an action would lie iimler 
 some circumstances without ejectment brougiu, 
 the plaintiff could not recover without satisfac- 
 triry eviilence of actual entry and possession. 
 
 •S. After entry there is a relation back to the 
 actual title as against a wrongdoer, and an 
 action may be maintained for trespass prior to 
 j such entry. 
 
 Rut in this case, besides a deficiency of evi- 
 
 clence of entry, there was some evidence tliat tiio 
 
 j defendant remained in posses.sion subseciuent to 
 
 ' the 12th August, 1873, the day the iilaintiti'? 
 
 title accrued, with tiio assent of tiie jilaiutitL 
 
 .Strong, J., duhitaiili'. 
 
 4. In any event the action for mesne protits 
 would not lie, the defeiulant having been, 
 previous to the 12th August, 187.S, in poasessidii 
 with the consent of J. H., the co-tenant iii 
 common, and being, therefore, entitled to a 
 notice to quit, or demand of possession, before 
 her possession could be considered tortious. 
 Li-.Cain v. HoMcrman, JSth January, IS7S, 
 
 Cas. Digest, :m, 
 
 184. Parties- Plaintiffs shipped goods on 
 
 defendants' vessel to be delivered at Halifax to 
 the consignees, "he or they paying freiglit." 
 After the shipment, and before action lirotigiit, 
 the consignees paid plaintiffs for the goods. 
 
 //eld, that the consignees were the proper 
 persons to bring the action for damages, oeoii- 
 sioned by non-delivery of the goods, aoconling 
 
 I to the terms of the bill of lading. 
 
 i Adnnii tt al. v. Crosby el al., 2 R. & (!., .'t.'il ; 
 
 ! 2C. L. T.,!I4. 
 
 185. Parties -Service on one defendant 
 
 but not on others — Where a writ was servuil 
 upon one of tiiree <lefendants, but not upon tlie 
 , other two, and upon the day of trial tiie at tor- 
 I ney of the two defendants not served indorsed 
 ! upon it an acceptance of service, dated back 
 '. more than fourteen day.- and marked nunc pro 
 I tunc, filing no appearance or plea. 
 I //eld, that thei'o was no irregularity in tiie 
 i trial against the defendant who was scrvcil, of 
 ! which he could take advantage, 
 i Alla7i v. Peterx tt al., 1 R. & C, .Ifio. 
 
lOMl 
 
 PRACTICE. 
 
 \0S'2 
 
 isu. Parties— Trustees of school can only 
 
 be Hued in corporate capacity for liabilities at) 
 such -Plivintitf brouglit action ajijaiiist defeii- 
 iliiiitM for a inaiuluniUN to compel thciii to provide 
 for a debt due liy the trustees of a school section. 
 Tlif writ was against the dcfemlants personally, 
 l)iit contained a statement that tliey were trus- 
 tci'H, &c., and that defendant 1). was secretary. 
 Evidence was taken as to the existence of the 
 del)t, and tiie case came on for hearing under 
 the pleadings and evidence. 
 
 JMl, that the trustees could only be sued in 
 their corporate name ; and that tiic amendment 
 to that eflFeci, asked for by plaintitf at the hear- 
 ing, could not be permitted. I 
 Cook- V. Daridsoti et al., R. E. D., 37. 1 
 
 187. Parties— Waiver of objection — The ; 
 
 original plaintitl' died after writ issueil and 
 lit' fore answer, and tiie suit was revived by her 
 executor. Defendants, in their answer, did not ! 
 call in question tiie death of tiie original plain- 1 
 titr, or the appointment of the present plaintiff ' 
 as her executor, and raised no objection to ids ' 
 not lieiiig t)ie proper person to revive tiie suit. 
 But after the issues raised by tiieir answer were 
 found against them, the oljjection was taken at 
 tiio iiearing that other parties should have been 
 ))efore the Court as plaintifTs. 
 
 Held, that tiie objection should have been 
 raised by demurrer or plea, or defendants should 
 iiave insisted (m it in their answer, and that, 
 although such an objection might be taken at 
 the hearing, if it were made to appear that the 
 rights of other parties not before the Court 
 would be prejudiced by the decree sought for, 
 yet, if the Court could make a decree which 
 would do justice to all parties, it would not 
 .allow the objection then to prevail. 
 
 Chipman, Executor, v. Garazaet al. 
 
 R. E. D., 28. 
 
 188. Party entitled to sue— Amendment 
 
 by adding plaintiff — L. \V. brought an action 
 to recover damages for the breacii of a contract, 
 miule bj defendant, for the supply of a quantity 
 of canned lobsters. 
 
 It appeared that in making the contract plain- 
 tiff was merely acting as agent for M. L. W., 
 and that he had no pei'sonal interest iu the 
 transaction beyond the fact that his remunera- 
 tion was dependent upon the amount of profit. 
 
 Ill Id, that the understanding between plaintiff 
 ami M. L. W. as to the mode in which plaintiff 
 was to be remunerated for his services, could ; 
 not enable the latter to recover in his own name 
 for a breach of the contract. 
 
 Leave having been granted, on an application 
 
 made for that purpose, to amend, by adding tlie 
 name of M. L. W. as plaintitl', 
 
 Jlt'ld, that under the wording of Order .W., 
 Rule 10, such an amendment could not )>e made 
 in tiie absence of a written consent by the party 
 to be joined. 
 
 mirzburg v. Wthb, 7 R. & C, 414. 
 
 189. Party to action -Death of-ElTect- 
 
 An action was brougiil on a promissory note 
 against the two makers, one of « lioin was dead 
 at the time of the trial. A verdict was found 
 in favor of the deceased defendant, but against 
 the other maker of the note, and a rule to set it 
 aside was taken out on the part of the plaintitf, 
 naming both the makers as defendants. As 
 there was no such cause in existence, one of the 
 original defendants being dead, the rule was 
 discharged with costs. 
 
 Oarnza et al. v. Xeily et al., 2 R. it G., 180, 
 
 190. Point of practice— Appeal— A cause 
 
 being tried before the Judge without jury, a 
 finding for defendant was filed December oth, 
 and a rule being refused was taken out under 
 tiie Statute December 11th, whicii rule was, <m 
 January ". ii, discharged, the bail-bond being 
 defective Plaintiff gave notice of appeal Janu- 
 ary 12th, and on the same day obtained a rule 
 nisi for a double appeal from the decision refusing 
 to grant a rule 7(iVi', and the decision pronouncing 
 tiie bail insufficient. (January 4th.) The Court 
 discharged the rule on tlie ground, — as to the 
 first appeal, tliat tiie notice was too late under 
 the Dom. Act of 1875, c. 11, s. 21, — and, as to 
 the second, that it was an appeal on a point of 
 practice, involving, it was true, a final judgnient, 
 but a judgment given December 5th, and left to 
 its operation by plaintiff's default. 
 
 Forsyth V. Symomlx, 3 R. & C, 97. 
 
 191. Power of Court to interpose to 
 
 protect interests of third parties interested in 
 fund — The statement of claim prayed tiiat 
 certain money should be paid to the Pictou 
 Bank, but the judgnient as entered authorized 
 the plaintiffs to enforce payment to themselves, 
 it appearing that an amendment t& that effect 
 had been permitted by the learned Judge before 
 whom the case was tried. 
 
 Held, that the amendment so allowed cured 
 the objection, but, if it appeared that the inter- 
 est of the bank, or of other parties interested in 
 the disposition of the fund, required the inter- 
 position of the Court, the CJourt had the 
 power to make such order in reference thereto, 
 as the rights of parties or the justice of the case 
 
]083 
 
 PRACTICE. 
 
 10N4- 
 
 ri'iiuirotl, without nrci'HHitating a new trial, if 
 not rt'ijiiiri'il liy tlic fiictH of tlie ciimc. 
 
 Kilfhiii it III. V. McDiiiialil it al., 
 
 2(> N. S. R., (H R. it (i.), 1H9; 
 HC. L. T., ;JS(». 
 
 102. Power or Judge to enter verdlet 
 
 inconsistent with findings of jury — ThuiJudi- 
 ciiturt' Act, sec. '21, Hul)-Nec. S, cnHcts that, iijHin 
 a trial by jury in ccrlaiii ciiscn, the Jutlgo "in- 
 stead of dii'ectinji the jury to give either a 
 general or Hjiecial verdict, may direct the jury ; 
 to answer any questions of fact stated to them j 
 
 hy the Judge for such puipose ; 
 
 and, on the finding of the jury upon the ques- 
 tions which they shall answer, the Judge shall j 
 enter the verdict," etc. 
 
 I'laintifT, aa Sherilf of the County of Lunen- 
 burg, levied upon a vessel on the stocks as the 
 property of one McKeen, an absent or abscond- 
 ing debtor. Defendant, after the levy, took the 
 Viissel off the stocks and disposed of her, claim- 
 ing under a bill of sale from McKecn executed 
 before the attachment. Plaintiff thereupon 
 brought trover. 
 
 The evidence on the trial showed conclusively I 
 that the l)ill was executed fraudulently, and j 
 tlie jury having found all tlie questions of fact 
 submitted to them in favor of the defendant, 
 tlie Judge, disregarding their findings, entered 
 a verdict for plaintiff with costs. 
 
 Held, that the words of the Act, "on the find- 
 ings of the jury," etc., mean consistently with 
 such findings. 
 
 Defendant gave notice of motion "on appeal 
 from the judgment " of the Judge, " and tliat 
 judgment be entered for the defendant, on the 
 ground that, upon the findings, the judgment is 
 wrong." I'luintiff up to the close of the argu- 
 ment did not move to set aside the findings, but 
 obtained leave to move to amend, so as to leave 
 that course open to him, and lie moved accord- 
 ingly. Defendant, after the argument, moved to 
 amend his notice so as to enable him to move to 
 set aside the verdict. Both amendments were 
 allowed, there being no surprise to either party, 
 and neither having complained of any such thing 
 or given any valid reason why such amendments 
 should not be allowed. The Court set iiside 
 both verdict and findings at the same time at 
 which they gave judgment allowing the amend- 
 ments, 
 
 Crciijhton v. Spinmy, 7 R. & G., 102; 
 
 7 C. L. T., 145. 
 
 103. Practice in proceedings for viola- 
 tion of City Building Act— Parties proceeded 
 against under the provisions of section 655, of 
 the City laws for the infringement of the regula- 
 
 tions relating to l)uililingH, arc entitled to un 
 information as in the case of Tin: City of Halifax 
 V. MrLiarn, 1 Old., tiMlt, if they re(|uire it, when 
 if the Court declaresthe structure to be a nuisance 
 tlie Council may order its removal, and it is nut 
 necessary to resort in the first place to the Police 
 Court under section 054. 
 
 The jirocoedings were ordered to be amended 
 by filing an information as against Seeton tlie 
 owner, omitting Hrookfield the contractor. Costs 
 as to Rrookfield reserved. 
 
 In re City of IluUj'ax and Sitton, t.t uL, 
 ',\ R. & C, 3(1,-). 
 
 101. Proceedings under 4th K. S., c. 103 
 
 — Foreclosure — A writ of summons was iss'u^l 
 commanding defendants to appear in the Su- 
 preme Court at Truro at the suit of the plain- 
 tiffs, who alleged that defendants were indebted 
 for principal an<l interest on a mortgage, reciting 
 the proviso for redemption. The writ proceeded 
 to set out an amount due on a promissory note 
 of defendants for the same amount as tlie mort- 
 gage, given as collateral security, and jiiayed 
 that in default of payment the equity of redemp- 
 tion should be foreclosed and a sale of the prem- 
 ises made. Defendants treated the suit as one 
 brought in this Court under 4tli R. S., c. lO.S, 
 and not as an equity suit, and pleaded various 
 grounds of defence. The cause was twice tried 
 and the verdict for defendants waj in each case 
 set aside by the Court in hanco. Defendants 
 then took a rule nini to rescind the rules setting 
 aside the verdict on the ground that the Court 
 had no jurisdiction, the suit being an equity 
 case. 
 
 Hi Id, that although the writ was not in strict 
 conformity with the procedure pointed out in 
 cap. 10,S, yet the Court had jurisdiction to dcid 
 with the case, not as one brought for the fore- 
 closure of an equity of redemption, but. as one 
 in v.liich on non-payment of the mortgage and 
 note an order of sale of the premises was sought, 
 and that it was too late to raise the question uf 
 want of juris(Mction grounded on an informality 
 in the writ which had been waived by defen- 
 dants pleading to and defending the cause as an 
 action at common law. 
 
 Lynd.'i tt al. v. Hoar tl al., 2 R. & G., 237 ; 
 
 1 C. L. T., 710. 
 
 I 
 
 I 103, Receiver — Tlie order for appoint' 
 
 ; ment of a Receiver can only be made wlicre a 
 i suit has been instituted. 
 
 Ez parte Peillon, 2 Thorn. , tO">. 
 
 106, Recognizance discliarged — Recog* 
 
 nizance entered into before two Justices for over- 
 
1()S5 
 
 PRACTICE. 
 
 ]08(J 
 
 liililiiij; the pliiiiitiir'H jircniiMi'H ilixfliiirged, the 
 
 |i|.iiiititr not liaving untiTcil tliu ainm: on the 
 
 Miriiiniiry liHt for trial nor coniinetu'ud iin action 
 
 III" (jtclMiunt, 
 
 lUiiii r V. (I'liini, iJanieH, 3.S7. 
 
 lilt. Kccognlzaiu'c— Est renting -Deren- 
 
 iliiiit, having liei'n conviitcd in tliu I'olicu I'oin'l 
 
 (it all atisanlt, fntfit'd into a ricognizance witli 
 
 twii sureties to kuep the I'eace. Afterwards he 
 
 was fonvicted of a weeond aHsaidt, and the 
 
 Atloriiey-(!enenil liad tiie jiroceedings brought 
 
 n\) liy rirliorari. Whereupon, 
 
 The Court, liohling that tlie mode of proceeding 
 
 ill Kiiylaiid to estreat recognizances was wholly 
 
 iiiapplicalile to this Province, sanctioned the 
 
 cmirHe pursued in the Qiieni v. Thompxon, 
 
 •J 'I'hom., 9. 
 
 (Jiwtii V. Brown, 1 H. & tl., M. 
 
 1»8. Recognizance -Estreallns — In or- 
 
 cUr to estreat a recognizance taken un<ler cap. 
 
 .'ill, of the Dominion Act of ISliO, all that is 
 
 ifquircd is a certiticate from the proper officer 
 
 luiider sec. 4.") of the Act) that it is forfeited. 
 
 Upon that a rule nisi is taken out on athdavits 
 
 'if the facts, and if no cause is shown, judgment 
 
 fiilldws, ))ut without costs. 
 
 Practice in the Queen v. Thompwn, 2 Thorn., 
 
 !), affirmed. 
 
 Queen v. Hickman, 3 R. & C, 255. 
 
 199. Recognizance -Judgment on-Judg- 
 
 iiant will lie entered on a recognizance against 
 imth principal and sureties, where the jirincipal 
 has not appeared in accordance with the condi- 
 lii'ii of such recognizance, and where a rule ni^i 
 i"i- siiL-li judgment has been served on the sure- 
 tics, iiiul the principal has left the Province, 
 ftiul they have failed to show cause, 
 'iwni v. Thomjison, 2 Thom., !t, atfirmed. 
 
 Queen v. Cadilay, 1 Old., 701. 
 
 200. Recognizance -Judgment on-Prac- 
 
 tiue as to entering up judgment on a recogni- 
 zance—The (Terk of the Crown made an afiidavit 
 'it tlip fact of a recognizance having been entered 
 int'3 by the defendants, of the signature of the 
 •Justices of the Peace thereto, and its return into 
 tilt' Supreme Court, and the non-appearance of 
 till- party to plead to the indictment. On this 
 atiiiluvit a rule nid to enter judgment was ob- 
 tained, A copy of the rule and of the affidavit 
 was served on each of the defendants. By cap. 
 Ill", l.st Revised .Statutes, s. 17, the Justice on 
 laking bail is required to give notice in writing 
 t') the party accused, of the time and place of 
 ti'ial. .Such notice had not been given. 
 
 /'<;• Haliburton, C. J.— As there appears to 
 be no settled practice relative to these escheats 
 here, I can see no objection to the proceedings 
 taken on the part of the Crown, Rule made 
 absoiute. 
 
 QuiiH v. 77i'/;/i/wo;(, 2 Thom., !). 
 
 201. Record, fliing of .\ Judgment had 
 
 been entered up on verdict, but there was noth- 
 ing to show that a record had been filed excepting 
 the fact that an execution had been issued. 
 .More than thirty years afterwards a rule iiiii 
 was obtained for leave to tile a recird therein 
 nniic iiro lunr, in order that it might be [)i')- 
 duccd as evidence in a (lending action between 
 the sons of the original parties, the titl") to land 
 being in (]Uestion, the rule was discharged on 
 the ground of the application being made too 
 late, and by a party in another suit with the 
 object of producing the reconl as evidence on 
 his own l.iehalf. 
 
 Jii-i'l V. Smith, 1 N. S. |)., 2(1. 
 
 202. Record - Proof of - Defendant put 
 
 I in as evidence of tiie juilgment the so- called 
 ;" record by default" in the form No. 11 of 
 ' schedule A, cap. !»4, of 4lli R. .S., signed by the 
 plaintiffs attorney. 
 
 Ill Id, that this was legal evid»'nce of a judg- 
 ment. 
 
 McDonald v. Faywotou, 1 R. & (1., 7<). 
 
 203. Record-Proof of-FllIng nunc pro 
 
 j tunc -Plaintiff jiroiiosed to give in evidence a 
 I copy of a record alleged to have been filed 
 j March 13th, 1878, to meet a plea of nul tiet 
 I record. The Prothonotary of the Court, called 
 1 by plaintiff, stated that no record ')f that date 
 'was to be found, and on cross-examination .said 
 the first record lie had seen .viis tiled August 
 j 18th, 1870, and that this was the first record 
 I that had been sent to him by the attorney whose 
 duty it was to prepare it. 
 
 //(/'/, that the Judge had properly rejected 
 the evidence, and that he was justified in re- 
 fusing t'j allow a record to be tiled nunc pro 
 
 tunc. 
 
 Hardy v. Smith, 1 R. & (i., 3.')1. 
 
 204. Record — Where, in an action to 
 
 revive a judgment, defendant pleaded nul tiel 
 record, and plaintiff filed a record only five days 
 before the trial, and after plea. 
 
 Held, that the plaintiff could not recover, as 
 the matter alleged in the plea was true, and a 
 complete answer to the action. 
 
 The record roll, filed by the attorney in a 
 cause on entering judgment, is the only evidence 
 of a recovery. 
 
10>^7 
 
 PRACTICE. 
 
 loss 
 
 Wlicro pluintiir hiix iliod iifter recuveriiig 
 jiiilgiiieiit witliout tiling iv ruconl, it oiiimot lio 
 tilfd liy Itin ruptfuontativc without leave of tiiu 
 ("oiiit or u Juilgv. 
 
 Chenky V. lioimctt, I K. & C, 112. 
 
 20.). KoFeree, report of- Objections to, 
 
 how to be taken — Wiicru in u (|iu'stiiin of 
 auciiiints and diBlmrHcnivntH a tliorougldy com- 
 petent perHon has been Hclucted as rufci'uu, with ■ 
 the approval of 1>oth partieH, and lie reportn 
 thereon after a full examination, thmie who would 
 take objectioUH to 8uuh a report are bound to I 
 jirove their objections by clear and mitisfactory j 
 evidence, for it will not be overruled uuIchh there 
 be an overpowering case made against it, which 
 shall satisfy the mind of tlie Court that it ought I 
 not to be maintained. 
 
 Thi; Jaini.1 Fmxn; Y. A. I)., 160. ; 
 
 206. Reference hy Judge at Chambers 
 
 to Court in ham: — A conviction under the 
 Canada Temperance Act was removed to the 
 County Court by certiorari. The prosecutor 
 applieil to a .Judge of the .Supreme Court at 
 Chambers for a writ of prohibition, to prohibit 
 the County Court from further proceeding on 
 the cirtiorari, and the order nini for the writ of 
 piohibition was, by a Judge presiding at Cliam- 
 ))ers, referred to the Court in banc. Defendant's 
 counsel objected that the Judge at Chambers 
 could not so refer the applicati(m. 
 
 Hi Id, that the writ of prohibition must be 
 allowed, but without costs. 
 
 Queen v. O'Stil, 20 N. S. H., (8 R. & (J.), 530. 
 
 207. Reference, order for— Defendant 
 
 pleaded and paid money into Court. Plaintiffs' 
 attorney took the money out, but did not reply 
 until after thirty days, when he applied for an 
 order to reply and for a reference. It having 
 appeared that after the money was paid in, 
 negotiations for a reference had taken place, and 
 the plaintiffs' attorney having sworn that he 
 acted on the belief that the reference was agreed 
 to, and the mode of settlement by reference being 
 an appropriate one, the order was nuide absolute. 
 Wyldt et al. v. Trtmaim, 1 N. S. D., 49.3. 
 
 208. Benisal of presiding .'fudge to sub< 
 
 mit questions to jury where questions already 
 put by him cover all issues raised— In an action 
 for trespass to land by cutting and removing 
 timber, the amount of damages having been 
 agreed upon the Judge presiding being of the 
 opinion that there was no other question 
 of fact to be submitted to th3 jury, directed 
 judgment to be entered in the piaintifiF's favor 
 for the amount of damages agrted upon, and re- 
 
 fused to submit to the jury certain (picHticiii.'* uf 
 fact which he was rf(|UeHteil by the coiniHel fur 
 the defendant lo submit. 
 
 //(/(/, there being uncontradicted ovideliuf (if 
 posHemtion in the phiintilf's favor, that the courw 
 pursued by the .Fudge was justitied under tlii' 
 terms of ■')th K. S., c. 104, s. "JO, ss. 7. 
 
 Where ((uestions of facts are submitted to tlii' 
 jury by the presiding Judge which amply uovci 
 all the issues raised by the pleadings, and leave 
 nothing necessary to be determined afterwiuil. 
 to settle the issues of fact involved in the pltiid 
 ings, he may decline to put any further i|Uestii>iii. 
 IkxIiarrM et al. v. litlhtai, 'JO N. ,S. M., 
 
 (8 R. & G.) 4W. 
 
 209. Relator -Indorsing name of -The 
 
 declaration set out a bond to Her Majesty cnh- 
 ditioned for the due perfornuvnco by defeiniiim 
 of his duties as guardian of the estate of a luiiii' 
 tic. Defendant pleaded an equitable plea, ami 
 asked for the equitable interference of tlie 
 Court. A verdict having been found for the 
 defendant and a rule taken to set it aside, tlii' 
 Court held that before proceeding to give jmlg- 
 ment as to whctlier there should be a new iiiiil 
 or not the name of some person should be intro- 
 duced as relator to be responsil)le for costs, lunl 
 gave leave to the Attorney-General tounicml tiu' 
 proceedings accordingly. 
 
 Qmtn V. Humphrey, 2 R. & C., (ilHi. 
 
 210. Relator— Indorsing name of -In uii 
 
 action on a bond to the Queen under chap. To, "f 
 4th R. S., "Of Licenses," etc., an attorney «iis 
 named on the writ, but it was not sliowii at 
 whose instance, or for whose advantage tliu 
 action was l)rought. The Court passed an oriicr 
 staying the action until plaintiff's attornuj 
 should indorse on the writ the name of the Cierii 
 of License, or such other person at whose in- 
 stance the action was brought to respond thu 
 
 judgment. 
 
 Queen v. McKarcher, 3 R. k C. .S.iT. 
 
 211. Replevin — Goods cannot be re> 
 
 plevied from Sheriff--Sec. .330 of cap. 94, H. S. 
 (4th series), prevents the replevying of goods 
 seized by and in the custody of the .Slieritl. 
 under process, out of the Courts therein reterri'd 
 to, though such goods are those of a thii il piuty, 
 a stranger to the cause in which the proci-ss 
 issued ; and where other defendants, acting i" 
 the Sheriff's aid and under his authority, un- 
 joined, the writ will be set aside as to all the 
 defendants. 
 
 Carty v. Bonuett et al., 3 R. & C, '-W- 
 
10. . I 
 
 PRACTICE. 
 
 1090 
 
 ai'i. Kepli'Tin - Where plalntlflT dlsfon* ki-fpiMK t\w hM^v in a mifo cfMi.liti.m, aii>i tliut 
 
 tiiiiinl an lutidn of ivplivin, t\w ili^fumlant tliu lial.ility of the clvfcndant wan a iiiattiT of 
 hiiviiijj |M.HMi'»«i..n of tlio «oo(U un.kT a iftuin ' law wliicli ho woiil.l U'avu to the l'"ull ('.uiit. 
 \m\u\, tlie Court .loclined to allow ilefemhint to //,/,!, /,.,■ HmUy, .1., tliat the only <|iieMion 
 try the eauHe, or to enter up jn.JKnient U, removed for the Court wa.t whether, a.sHuniing 
 vinnii) li(i';i,ilt,,\mt jHiMMd a rule for ju.lgnient the aecideut to have re-sulted from negligenee, 
 fur the defendant with eimtn. I hh put to the jury, the defendant*, were liaMui 
 
 h'rnii.1 V. Itois, ;< H, & C, W. I and that if the defendantM were diHHUtislied with 
 
 I the eiiarge uh to negli^jenie, they hIiouM have 
 
 'il.'J. KVSClndIng JudKCN order The rule recjuireil that issue to he put to the jury, and 
 iifeMiiial one Judge re.seindiuK an order made liy should have included misdirection in the ground 
 iiiiotlier Judge docit not apply to orders which for setting asiile the verdict. Weathcrlie, .!., 
 iiii- Miade nlisoliite in the tiist instance. | concuri'ing. 
 
 Tiulics against whom such orders are obtained /'» »• Thompson, .1.— 'i'hat this was a resurva- 
 ix iKirh may apply to havo them set aside if j tion of a mixeil ((uestioii of law and fact, and 
 iiTiKularly or improperly obtained, especially that in the al.sence of evidence to satisfy liie 
 wluic tiiey had a right to he heard liefore the Court as to the negligence of the defendants, 
 nnlcis were gninled. the verdict could not lie uphehl. McDonahl, 
 
 111 taking out a rulo for interrogatories) u rule C, J., concurring. 
 1/m/ should bo taken, and not a rule nhioliilt in, ll'd/wy; v. T/u Muuifi,>ality of Colcla ^i< ,-, 
 
 till' lii'st instance. 
 
 Cliamhi r-i v. Iluiittr, 'J N, ,S. I)., H4. 
 
 '214. Ke.solndlnR order - A|iplirutlon for 
 
 the purpose of, where no appeal -Defendants 
 
 liuviiig been convicted of an oH'enco under the 
 
 l)(pniiiiii)n Statute in relation to cruelty to 
 
 iiiiiiiiiiis, an apiilication was made to a Judge of , 
 
 ilR. Supremo Court for an order for a writ of ' '"'",*'' "." 'I"t'«ti""« "f fnct a.s well as law, a new 
 
 () K. & (;., .'im 
 
 On npjital fo the Siipremt Court ofCamulu, 
 
 III III, Strong, J.,ilixs,,i/liiij, that theplaintifl" 
 was entitled to retain his verdict. 
 
 I'l r Strong, J., iliiHiiitlinj, that there was not 
 sutKcient evidence of negligence to warrant tiie 
 verdict, and the case reserved for the Court 
 
 rn-iiomri to remove the conviction into the 
 Sii|ireiiie Court. An order having been made 
 lufiisiiii,' the order applied for with costs, 
 
 //t/'/, that the ofl'ence being clearly of a crim- 
 iiiiil nature, in the absence of any authority 
 autlioii/.iiig the Judge to impose cosu, or of any 
 Imil or recogiii/ance to pay them, the defendants 
 cmilil nut lie made to pay the prosecutor's costs 
 'if iiliposing the order for the cer/iorai-i. 
 
 All apjilication was made to the Court to 
 
 trial might have been ordered, nolwith.standing 
 the objection was not taken either at the trial 
 or in the rule ni.ii. 
 
 Cokhis/ir V. Watxoii, lOth March, JSSJ, 
 
 Cas. Digest, f»S. 
 
 216. RevlvliiR .liidsment, Ac. -Plaintiff, 
 
 as assignee of the original judgment creditors of 
 the defendant, issued a writ of revivor in her 
 awiiul that portion of the order relating to I "^^■" '""'"^ against defendants. 
 ciLsts, a similar ajiplication having been previ- I ■'^''''' ""^' ^'"^ judgment must be revived in 
 oiisly made to the .Judge and refused. I ^'"^ '"""^ "^ ^'"'' <"''fc'i"'il parties, or their legal 
 
 H'hl, that there being clearly no appeal j,, ' rei«'«sentatives in case of death. 
 siicli a case, un.ler the Judicature Act and \ ""'^'' f'^^ti'-'i^' 'i"'l precedent rcijuirc liiat a 
 Knks, tile course adopted by the defendants' ' J"'lfc'"'«"t. '^"^« """Ic a matter of record, should 
 
 <"iii,scl of applying to the Ccmrt to rescind i ""''"-' '^^"''''"■'"''^'* ^■'"'''''' '"''** •-'*'*<-'"t''^^ f'-'"''"'"'^«- 
 was the proper one! j Construction of 4th R. S., c. 94, s. Xw. 
 
 Ill' RU-e, 20 N. S. R., (8 R. & ({.), 4.37 ; "'"'' ^'- ^^^<^''^'^<" '■' «'•■ -^ ^- «• l^.. 
 
 Set Siiprn, 1.55 and 157. 
 
 !»C. L. T., H)8. 
 
 215. Ke.scrvlnj; ease for Court — Mixed 
 
 queation of law and fiict— I'laintifl" recovered 
 ^i verdict for .S.SiXK) against the defendants, for 
 injuries caused by falling over an uurailed bridge, 
 miller a, charge by which the jury was instructed 
 that tiie .accident resulted from the undoubted 
 negligence of those on whom the duty lay of 
 
 35 
 
 (8R. &(i.), l.-,9; 
 8C. L. T.,376. 
 
 217. Revivor of Judgment - Matter of 
 
 defence cannot be pleaded to an action to revive 
 a judgment which existed anterior to the recov- 
 ery of the judgment. If a judgment be erroneous, 
 that circumstance will afford no answer to an 
 action of debt upon it. The only course for the 
 defendant is to reverse it by writ of error. The 
 
1091 
 
 PRACTICE. 
 
 1092 
 
 word "specialties" in chapter 19, R. S., (3rd 
 
 series), section 16, does not include " judgment." 
 
 Laivrence v. McDonald, I N. S. D., 413. 
 
 218. Revivor of Judgment— 
 
 Set JUDGMENT. 
 
 219. Bight to begin — If the afflrmative 
 
 of one of the issues at the trial rests on the 
 plaintiff, he has a right to begin. 
 
 Furlowj V. Cooper, James, 181. 
 
 220. Rule abandoned by notice— Motion 
 
 necessary to obtain costs — Though notice of 
 abandonment of a rule be given to the opposite 
 side, yet he must move to have it discharged in 
 order to obtain his costs. 
 
 Swan V. Pryor tt at., 2 Thom., 13. 
 
 221. Rule— A rule returnable on the first 
 
 day of Term is the same as a four days' rule and 
 must go on the docket, unless special circum- 
 stances are shown. 
 
 McDonald v. Mitchell et al., 3 R. & C, 274. 
 
 222. Rule — Motion to rescind — Pleas 
 
 were added by defendant just as the cause was 
 going to trial in 1876, to which plaintiff, there- 
 fore, had no opportunity to reply. The verdict 
 was for plaintiff, and a rule to set it aside was 
 discharged in 1877. An appeal was taken to 
 the Supreme Court of Canada, the result of 
 which was that a new trial was granted in 1878 
 on the ground of improper rejection of evidence 
 and misdirection. After this decision was given, 
 plaintiff obtained an order absolute in the first 
 instance for leave to amend his declaration, and 
 reply and demur to the added plea, on payment 
 of costs, if any. Defendant asked for a rule to 
 rescind this rule on the grounds, among others, 
 that the application was too late, that it should 
 have been a rule 7iisi in the first instance, and 
 that the amount of the costs should have been 
 settled in the rule. The rule to rescind was 
 refused, and the appeal from such refusal dis- 
 missed with costs. 
 
 Scu/her v. Wallace, 2 R. & G., 80. 
 
 223. Rule nisi at Chambers returnable 
 
 in Term — 
 
 Held, Weatherbe. J. , disaentimj, that notwith- 
 standing the omission from R. S., 4th series, 
 cap. 94, sec. 5, of the words contained in R. S. , 
 3rd series, cap. 134, sec. 238, a Judge at Cham- 
 bers can make a rule nisi returnable in Term. 
 
 Oakea v. The. City oj Halifax, 1 R. & G., 98. 
 
 The judgment in this case was reversed on 
 appeal to the Supreme Court of Canada. 
 
 4 S. C. R., 640. 
 
 224. Rule nisi below amended and made 
 
 absolute on terms— On appesd from the judg- 
 ment of the County Court refusing to set anitle 
 a default where the writ had not been peisim- 
 ally served, the Court under Order XXVIiI., 
 Rule 14, amended the rule nisi in the Court 
 below by adding a ground setting out that de- 
 fendant had a defence on the merits, and had 
 satisfactorily accounted for his non-appearance, 
 and made absolute the rule on terms of a bond 
 being given to the County Court Judge to re- 
 spond final judgment, defendant to pay costs 
 of argument and appeal, otherwise appeal to 
 be dismissed. 
 
 Hayden v. McNait, 5 R. & G., 541. 
 
 225. Rule nisi* discharging-Where no 
 
 one appears in support of a rule nini for a new 
 trial when the cause is called for argument, the 
 rule imi will be discharged after reasonable time 
 for the party who took it out to make such 
 application as the circumstances call for. 
 O'Connor v. Royal Canadian Ins. Co. , 
 
 2R. &C.,373. 
 
 226. Rule nisi for new trial granted by 
 
 the Judge on circuit allowed to be ameiiiled by 
 inserting grounds brought to the notice of the 
 Court by affidavit on the first day of Term. 
 
 McCully v. Dyktman, 3 R. & C., 482. 
 
 227. Rule nisi may be modified on being 
 
 made absolute— A party moving to make a rule 
 
 nisi absolute, may ask for a modification of that 
 
 rule. , 
 
 I Uniacke v. Brundiije tt al., 2 Thorn., oT. 
 
 228. Rule nisi obtained without producing 
 
 document— Right to produce on argument of 
 the rule— When obtaining a rule nisi from the 
 Judge in Insolvency the claimants did not pro- 
 duce the original agreement of the insolvent 
 with them, 
 
 Htld, that they were not thereby precluded 
 from producing it at the argument of the rule, 
 or accounting for its non-production. 
 
 In the Matter of Charles Pyke, an Insolrent, 
 
 3 N. S. D., 342, 
 
 229. Rule nisi unopposed - The Coart 
 
 will make absolute without a; gument a rule nw, 
 which having been duly served and entered for 
 argument, is unopposed. 
 
 Bissett v. Cordeau, James, 344. 
 
 230. Rule of Court-Extension of- Plain- 
 tiff obtained an order nisi to set aside defen- 
 dant's pleas, and, subsequently, an order absolute. 
 
1093 
 
 PRACTICE. 
 
 1094 
 
 From the latter order defendant appealed to the 
 Fuliroiirt, who directed that the order absolute 
 be set aside, and that the order »(i.st be sent back 
 to, and be re-heard before, a Judge at Cham- 
 bers, naming, with the assent of the Judge, the 
 14th August for such hearing. The defendant's 
 attorney attended on the day fixed, to resist the 
 application, but the pluintiff 's attorney, having 
 mistaken the day, failed to appear. The Judge 
 not being sure himself that it was the day fixed 
 upon, declined to proceed, and appointed the 
 hearing to be held on the '21st August. The 
 hearing was further adjourned to the 22nd 
 August, on which day the attorneys of both 
 parties attended, and, liy further postpone- 
 ments, to the first Tuesday of October, when 
 the order was again made absolute. The defen- 
 dant appealed from this order on the ground 
 that the Judge, sitting ;ilone, and acting upon 
 an order made by the Full Court, had no power 
 to extend the time for the hearing to the 22nd 
 August, or to modify the rule or judgment of 
 the Court in any way. 
 
 Hdd, that the Court, in naming the 14th 
 August as the day for the hearing of the matter, 
 did not intend to confine the hearing to that 
 day, or to deprive the Judge of the power to 
 extend the time to any future day, 
 
 Ildd, aim, that plaintiff, having had an oppor- 
 tunity of proceeding to trial since his application 
 was first made, of which he had not availed 
 himself, the order netting aside defendant's picas 
 must be set aside. 
 
 TowHsend v. Pye, 1 N. S. D., 23. 
 
 231. Rule referring to Court evidence to 
 
 be taken before Master — Jurisdiction to hear 
 cause— A cause was tried at Sydney and not 
 concluded when the Court adjourned. A rule 
 was then made and consented to by the counsel 
 and attorneys of both parties, ordering that, in 
 addition to the evidence taken before the Court, 
 further evidence should be taken at Sydney 
 before a Judge or a person named in the rule, 
 und at Halifax before a Master in the manner 
 set nut in the rule, that all the evidence should 
 be filed with the Prothonotary at Halifax, and 
 the cause should be heard upon such evidence 
 before the Court sitting in banc at Halifax, and 
 the Court should have power to refer any matter 
 of account in said ccuse to a Master or Referee 
 for his report which report the Court might 
 confirm, reject, or utilize, as it should see fit, 
 and enter up judgment for either of the parties ; 
 and it was further ordered that the Court should 
 have power to make all and any orders, and do 
 all things necessary for the purpose of finally 
 disposing of the cause. 
 
 Held, that the Court had no jurisdiction to 
 hear the cause under the rule. 
 
 O'txbome v. Cape Breton Co., 3 R. & ()., 27 ; 
 
 2C. L. T.,602. 
 
 232. Rule returnable before presiding 
 
 Judge on circuit — A rule to set aside pleas was 
 made by a Judge returnable before " the presid- 
 ing Judge of this Honorable Court at (iuysboro 
 on the first day of the ensuing October Term 
 there," and was argued on the first day (,'f the 
 Term after the opening of the Court. Judgment 
 was reserved, and, afterwards, at Halifax, the 
 learned Judge who heard the argument, made an 
 order absolute, setting aside one of the pleas, 
 and then resigned. 
 
 Held, that the order must be rescinded on the 
 ground that it was made returnable in CViurt. 
 
 McDonald v. McDonald, 3 R. & 0., 29; 
 2C. L. T., 602. 
 
 233. Rule returnable on circuit —A Judge 
 
 at Chambers has no power to make a rule nin 
 returnable before the Court on circuit. 
 
 Elliott v. McDonald, 3 R. & G., 283. 
 
 234. Rule taken without notice— Rescind' 
 
 ed — PlaintifT obtained a garnishee order which 
 was made absolute on the I8th June, without 
 notice to the defendant, to attach the salary 
 payable to th*? defendant as school teacher in 
 the town of Pictou, for the quarter ending 
 August 1st. 
 
 Held, that there was here no debt, but only a 
 portion of a salary, and that salary not attach- 
 able under the English rule and the policy of 
 the Provincial Statute ; and that as the rule of 
 18th June had been passed without notice to 
 the defendant, and without argument, it must 
 be rescinded with costs. 
 
 /'ra.ser v. Mc Arthur, 3 R. & C, 498. 
 
 235. Rule to refer- Defendant appealed 
 
 from an order referring a cause to arbitration at 
 the instance of plaintiff, on the ground that 
 there was a plea of negligence in the conduct of 
 the services for which the action was brought ; 
 but it was not shown that the defence would 
 really be raised. It was also argued that the 
 Judge had no jurisdiction to refer the cause to 
 arbitration after a demand for trial by jury, but 
 this ground was not taken in the rule for appeal. 
 The appeal was dismissed, 
 
 Eaton v. Roue, 3 R. & G., 274. 
 
 236. SatUfiiction piece— Setting aside— 
 
 The assignee of a judgment recovered by the 
 plaintiff against the defendant duly recorded 
 the certificate of judgment and the assignment 
 
1095 
 
 PRACTICE. 
 
 1096 
 
 in the Registry of Deeds. The plaintiff after- ] than the accustomeil officer, nor beyond the 
 wards undertook to deal with the judgment as jurisdiction of the Court. 
 
 his own and signed a satisfaction piece, which 
 was also recorded. A rule nisi was taken at tlie 
 instance of tlie assignee to set aside the satisfac- 
 tion piece, but the Court declined to interfere, 
 considering that the remedy must lie sought in 
 the Equity Court. 
 
 McXab V. Shortlaiul, 2 R. & 0., 1 ; 
 1 C. L. T., 191. 
 
 237. Security for costs— Where oue of two 
 
 plaintiffs is absent, and tlio other insolvent, 
 defendant is entitled to security for costs. 
 
 McDowjall V. Gddert, James, 59. 
 
 238. Security for costs-Entry of Judg- 
 ment for failure to give— It is not necessary to 
 move the Court for leave to enter judgment 
 under R. S. (4th series), cap. 94, sec. Ill, where 
 plaintiff has failed to give security for costs 
 within twelve months after service of a rule 
 therefor. 
 
 Gray v. McKecn ; Nchon v. Fnhon ; 
 
 2 R. & C, 402. 
 
 Sen infra, 252, and COSTS. 
 
 239. Service at last place of abode— 
 
 Hdd, that where the debtor was an attor- 
 ney, a notice of assignment of the debt served 
 upon him by leaving it at his office instead of 
 " at his last place of abode," tlie words used in 
 the Act, was within the spirit of the Act. 
 
 O'Connor v. Weeks, 3 N. S. D., 71. 
 
 240. Service on company out of Province 
 
 —Plaintiff entered on the record a suggestion 
 that the Canada Improvement Company, one of 
 the defendants, was absent out of the Province 
 when the writ of summons was issued, and on 
 tliat account could not be served with process. 
 The suggestion was no<- traversed, and it was 
 contended by defendants that it had not been 
 proved at the trial, and, therefore, that plaintiff 
 should have become non-suit under Revised 
 Statutes, cap. 94, sees. 347 and 350, and further, 
 that the defendant could have lieen served under 
 section 41, of the Canada Joint Stock Companies 
 Clauses Act of 1869 (cap. 12, of 1869), made ap- 
 plicable to this company by cap. 119, of 1872, 
 sec. 9. 
 
 Held, that the suggestion if the truth of it 
 was denied should have been traversed by de- 
 fendants, and that the section of the Canada 
 Joint Stock Companies Clauses Act referred to 
 did not enable service to be made by any other 
 
 Greijonj v. 7'he Halifax <0 C. B. 
 IV y <t- Coal Co. et al., 
 
 4 R. & 0., 4.%. 
 
 Affirmed on appeal to the Supreme Court of 
 Canada. Cas. Digest, 434. 
 
 Leave to appeal to the Privy Council refused, 
 3rd Ai>ril, ISSC. Cas. Digest, 544. 
 
 241. Service-Waiver of personal service 
 
 — Attachment— Personal service of a rule /(/</ 
 is waived by appearance. 
 
 A demand is only necessary before applying 
 for attachment where something is required to 
 be done as money paid, deed executed, &c. 
 
 A rule niM for an attachment for bleach of an 
 injunction need not state tliat it was grauted 
 on reading the injunction. All that is nece-ssiuy 
 is to produce the injunction in Court. 
 
 The Starr Man ufaclurinij Co. (Limit'-d) 
 
 v. Fairbanks, 3 N. S. D., 4G. 
 
 242. Service— Wliat necessary to show to 
 
 dispense with personal service — Proceedings 
 were had before the Deputy Commissioner of 
 Mines at Halifax to obtain the forfeiture of a 
 mining property at Montague, owned by defen- 
 dant. The defendant reside<l at Londonderry and 
 had agents at Montague, but no service of notice 
 was made on either him or them, and ncitlier lie 
 nor tliey knew anything of the proceedings until 
 after the areas were forfeited. The notice was 
 posted by a person who appeared to be inlercsteil 
 in procuring tlie forfeiture, and who swore that 
 neither Tobin nor any agent or person employed 
 on the premises could be found in the district on 
 whom personal service could be made. The 
 matter being brought up by certiorari, 
 
 Held, that in order to dispense witii personal 
 service, evidence should have been given of a 
 honafdt search, or that defendant was out of the 
 
 Province. __ „, . 
 
 Queen v. Tobin, 2 R. & «., 30,). 
 
 243. Setting aside proceedings— Who maj 
 
 move — Plaintiff having proceeded against de- 
 fendant as an absent debtor, an application was 
 made on behalf of one Willis claiming to be 
 owner of the property attached to set aside the 
 proceedings. It appeared that defendant hail 
 two otheu in partnership with him in the busi 
 ness in connection with which the debt arose, 
 one of whom was . i the Province at the time 
 the process was issued. 
 
 Held, that, neither defendant nor eitlier of his 
 partners having moved, there was no one lieforc 
 
1097 
 
 PRACTICE. 
 
 1098 
 
 the Court who could be heard in support of the 
 contention tlmt defendant when sued was not 
 sul)juut to the law authorizing proceedings against 
 absent or absconding debtors. 
 
 liobtrtson v, Camtron, 2 R. & C, 261. 
 
 244. Setting down cause for day-A petit 
 
 jury cause on the docket of causes for trial may 
 1)0 net down on a particular day upon special 
 gronnds and where the circumstances are 
 peculiar. 
 
 Le.''.ific. of Phailen v. Phnilen, James, 112. 
 
 '.'43. Setting-oflr Judgments-Right to, not 
 
 a legal, but an equitable right— Cases in which 
 order to set off refused — Plaintiff obtained 
 judgment in an action of trover against the de- 
 fendant, defendant having at the time, and in 
 tiie same Court, two judgments against the 
 plaintiff outstanding and unsatisfied. Defendant 
 obtiiincd a rule )i/.i/, calling on plaintiff to show 
 cause wiiy one of defendant's judgments should 
 not be set off against that olitained by plaintiff. 
 On argument the rule was made absolute. 
 
 The right of setting off one judgment against 
 anotlier is not a legal right, but is given by the 
 equitable jurisdiction of the Court, with refer- 
 ence to the circumstances of the case. The 
 cases where a rule has been refused are cases 
 where there has been an absolute judgment f)n 
 one side and not on the other, but a jutlgment 
 depending upon a contingency. 
 
 McDonald v. Lawreiwe, 1 N. S. I)., 411. 
 
 246. Stieriff's return- Amendment of— 
 
 The Court will permit the Sheriff to amend his 
 retnin to a writ against an absent debtor, so as 
 to state thi'.. the property attached was the 
 properly of the absent debtor. 
 
 Murixon it al. v. Boyd, 2 Thom., 247. 
 
 247. Special case- Court no power to add 
 
 to— After evidence on both sides was concluded, 
 a juror was withdrawn, and it was agreed that 
 the Judge's minutes should be returned to Hali- 
 fax and the cause treated as a special case, the 
 Coun having power to draw inferences as a jury 
 ami enter judgment for the party entitled. It 
 being discovered when the cause came on for ■ 
 argument that no evidence had been given at : 
 the trial with respect to a point material to 
 plaintiff's case, the Court directed (defendant's 
 counsel protesting) that the argument should be 
 postponed until further evidence was taken 
 before a commissioner as to the point in question. 
 Mooney v. Smyth, 1 R. & C, ,S71. 
 
 Reversed on appeal to the Supreme Court of 
 Canada. 
 
 Smyth v. McDowjaU, 1 8. C. R., 114. 
 
 218. Special case stated by the Sessions- 
 Motion for the opinion of the Court on a special 
 case stated by the Sessions of the County of 
 Halifax inquiring whether they could tax the 
 plaintiffs' costs on an order confirming an order 
 of affiliation made by two Justices of the Peace 
 and appealed against. Objection taken that no 
 rule iiixi had been served. The cause had been 
 regularly entered for argument. 
 
 Per Bliss, J. — The proper way is to apply 
 upon the case for a rule nid and serve it. 
 
 Per Haliburton, C. J. — The rule will be 
 headed in the cause. 
 
 Oftrftkr^, ike, v. Bi'y.son, James, 152. 
 
 240. Speeding cause — Equitable suit — 
 
 In equitable suits, the Court will compel the 
 plaintiff to speed his cause. 
 
 Scely V. Gilhtrt, 2 Thom., 14. 
 
 250. Stating case or preparing issues in 
 
 County Court— 
 
 Semhle, that the Judge of the County Court 
 nuiy direct that instead of the pleadings, a state- 
 ment in a summary form of the material facts be 
 substituted, or that ttie parties prepare issues or 
 have them settled by the Judge. 
 
 McDonald v. Clarke, 2() N. S. R., 
 
 (8 R. &G.), 254; 
 8 C. L. T., 401. 
 
 2.;i. stay of proceedings— A rule staying 
 
 proceedings until tiie ])arties had mutually 
 delivered plans will not prevent defendant, who 
 has complied with the rule, from moving for 
 costs of the Term against plaintiff for not pro- 
 ceeding to trial, the plaintiff not having com- 
 plied with the rule. 
 I O'Connor v. Fiiher, James, 269. 
 
 252. Stay of proceedings by rule for 
 
 seciu'ity of costs, operates against the plaintiff 
 
 only. 
 
 McDoHijal' V. McDonald, James, 91. 
 
 253. Stay of proceedings on appeal to 
 
 Supreme Court of Canada— Security — \\here 
 judgment is for defendant, and plaintiff, appeal- 
 ing, wishes to stay execution for defendant's 
 costs, he must give security for §750, or .?2.')0 in 
 addition to the S500 prescribed by "The 
 Supreme and Exchequer Courts Act." 
 
 Kemiey, Amynee, v. Dudman, 
 
 2 R. & C, 376. 
 
 254 . Stet processus— Leave to enter a stet 
 
 processus on account of defendants' insolvency 
 will not be given, unless applied fur immediately 
 
1099 
 
 PRACTICE. 
 
 1100 
 
 after the plaintiff has become aware of the insol- 
 vency and before he has taken other steps in tiie 
 cause. 
 
 Darlinij v. McLdlan et al., 1 R. & C, 256. 
 
 235. Stet processus -Grounds for— The 
 
 insolvency and permanent absence of the defen- 
 dant is a sufficient ground for a rule to enable 
 the plaintiff to enter a xlel procemu'i. 
 
 Heffeman v. Lacy, James, 267. 
 
 256. Suggestion on record of absence of 
 
 party— Traversing— Service — Plaintiff entered 
 on the record a suggestion that the Canada Im- 
 provement Company, one of the defendants, 
 was absent out of the Province when the writ of 
 summons was issued, and on that account could 
 not be served with process. The suggestion 
 was not traversed, and it was contended l)y 
 defendants that it had not been proved at tlie 
 trial, and, therefore, that plaintiffs should have 
 become non-suit under 4th Rev. Stats., cap 94, 
 sees. 347 and 350, and, further, that the defen- 
 dant could have been served under section 41 of 
 the Canada Joint Stock Companies C'Uiuses Act 
 of 1869 (cap. 12 of 1869), made applicr.ble to this 
 Company by cap. 119 of 1872, sec. 9. 
 
 Hi Id, that tlie suggestion, if the truth of it 
 was denied, should have been traversed by de- 
 fendants, and that the section of the Canada 
 Joint .Stock Companies Clauses Act referred to 
 did not enable service to be made by any otlier 
 than tlie accustomed officer, nor beyond the 
 jurisdiction of the Court. 
 
 Greijory v. The Halifax and C. B. R'y and 
 Coal Co. e/ al., 4 R. & G., 436. 
 
 Affirmed on appeal to the Supreme Court of 
 Canada. 
 
 Cas. Digest, 434. 
 
 257. Suggestion— To entitle plaintlfT to 
 
 enter suggestion on the record of a judgment 
 more than six years old, when defenilant is out 
 of the Province, tlie ri'le must be published 
 tliirty days in the Royal Gazette. 
 
 Keith V. Cnnninijhavi, 2 Thom., 149. 
 
 25S. Suggestion — Wliere the plaintiff . 
 
 recovered a verdict, and a rule nid was granted i 
 to set it aside, but the plaintiff died before t)ie 
 time for the entry of causes for argument, an<l 
 the defendant did not enter the same, the Court 
 refused to discharge the rule imi and allow the | 
 plaintiff to enter judgment nunc pro tunc, as of I 
 the last day of the sittings in which the cause • 
 was tried, holding that the defendant was not | 
 bound to enter the cause until the plaintiff's ' 
 representative became a party, and that although ] 
 
 plaintiff's rcjiresentative was not precluded from 
 having the rule nini disposed of, he must as pre- 
 liminary to that end enter a suggestion on tlie 
 record and liecome a party to the suit. 
 
 Shepherd v. /FAiVe, 1 R. & C, 1."). 
 
 259. Suit for proceeds by subsequent 
 
 attacher where earlier att.achmeiit set aside- 
 Grounds set out in order visi, but not in order 
 absolute — Jurisdiction amply shown — Tlie 
 defendant R., on the 5th June, 1880, sued out a 
 writ of .summons and attachment against M., 
 under which the Sheriff attached certain proper- 
 ty of M., which was sold as perishable property. 
 In December following, defendant obtained un 
 ex parte order, on default of appearance ))y M., 
 permitting him to enter judgment against M. for 
 the amount of his delit and costs, and directing 
 the Sheriff to pay the amount of the debt anil 
 costs out of the proceeds of the sale in iiia 
 hands. 
 
 On January 14tli, 1882, plaintiffs as subse- 
 quent attachers, obtained an order, making 
 absolute an order niu previously granted re- 
 scinding and quashing defendant's summons and 
 attachment, and all suliseiiuent proceediiigri, in- 
 cluding the order for the payment of the proceeib 
 of the sale on the grounds that the debt claimed 
 was not due or payable wiien the action com- 
 menced ; that the affidavit stated no proper 
 cause of action, and was irregular and defective ; 
 that the summons was not properly iiidoisud ; 
 that there was no order for the issue of the 
 summons or attaciimeut, and on otlier grounds. 
 Defendant having refused to repay tiie amount 
 received from the .Sheriff after demand, and the 
 Sheriff having declined to commence an action 
 against him to recover the amount or to allow 
 plaintiffs to do so in his name, plaintiffs com- 
 menced proceedings by bill in Equity, praying 
 that an account lie taken, and that defendant be 
 ordered to pay the amount realized to the 
 Sheriff or to plaintiffs. The prayer of the 
 petition having been granted with costs on the 
 ground that the judgment obtained liy defen- 
 dant against M., had been set aside, and the 
 decision not appealed from or reversed. 
 
 Held, that the ground stated was sufficient to 
 support the judgment. 
 
 Alio, that as all the necessary facts were con- 
 tained in the order imi of the 15th January, 
 which was made absolute by the order of the 
 14th January, 1882, the latter order was suffi- 
 cient, and the jurisdiction of the Court was not 
 only ample but was amply shown. 
 Corbitt et al. v. Robinxon et al., 7 R. & G., 480. 
 
 260. Supplemental bill — PlalntiflT, as 
 
 official assignee of M., took proceedings to re- 
 
1101 
 
 PRACTICE. 
 
 1102 
 
 cover bftck money paid to defendants in fraud ' 
 of creditors. Hubsecjuently tiie creditors' assig- [ 
 nee, on being appointed, obtained a rule niii 
 cnlliiig on defendants to sliow cause why he 
 slintdd not be allowed to tile a supplemental bill 
 anil become plaintiff. 
 
 //i-ld, that the plaintiff was entitled to file a 
 supplemental bill. 
 
 niii/h V. Kenny et al., R. E. D., 344. 
 
 261. Supplemental bill — The firm of 
 
 Rogers U Son made a deed of lands to a trustee 
 for tlie benefit of creditors. Three or four days 
 ftfterwards defendants obtained a judgment 
 against the firm, which tliey recorded to bind 
 lands. The next day, or the day following that, 
 an attachment issued under the Insolvent Act of 
 187">, by virtue of which plaintiffs became assig- 
 nees of liie firm, and as sucli assignees took a 
 conveyance of tlie lands in question from the 
 trustees under tiie first deed. 
 
 The defendants being about to sell the lantls 
 under their judgment, plaintiffs applied to the 
 Court for an injunction to restrain them from so 
 doing, but the injunction was refused on the 
 grounil that the title to the lauds was in plain- 
 tiffs under the conveyances aii'! t).vt defendants 
 acquiied no lien under their judgment. 
 
 Defendants having again proceeded to sell, 
 plaintiffs paid the amount of tlie judgment under 
 protest and applied to a Judge for leave to file 
 u supplemental bill praying tliat defendants be 
 decreed to return the money so paid. 
 
 Htid, on appeal from an order allowing the 
 anienilnient asked for, 
 
 Pit- Weatherbe, J., that the amendment should 
 lie allowed, as the most direct metliod of testing 
 tiie sol'3 question l)etween the parties and put- 
 ting an '/-nd to litigation. 
 
 Per McDonald, C. J., that the relief prayed 
 for in tlie supplemental bill was rendered neces- 
 sary l)y circumstances arising out of subse(]uenl 
 dealing.s with the subject matter of the original 
 suit, and as the supplemental bill appeared to 
 be necessary to place tlie parties properly before 
 the roiirt, the order appealed from was rightly 
 made. 
 
 Pit Ritchie, J., the amendment should be 
 made as clearly in furtherance of the original 
 cause of action. 
 
 McDonald, J., dissenfiny, on the ground that 
 nil the ([uestions, upon which the application to 
 file tlie supplemental statement proposed de 
 pended, had been fully adjudicated. 
 
 Alao, that since the payment of the money 
 defendants had signed a saitiafaction piece and 
 tlierehy released their lien. 
 
 Johii'i et (d. V. Barbour et al., 7 R. & (i., 121 ; 
 
 7 C. L. T., 172. 
 
 262. Supreme Court of Canada— Agents- 
 Appointing — Conducting business witli the 
 Registrar's office by correspondence is an irregu- 
 lar practice. A solicitor should appoint an 
 agent as required by the Supremo and Ex- 
 chequer Court rules. 
 
 Wallace v. Burkner, 2nd May, 1SS3, 
 
 Cas. Digest, 380. 
 
 Supreme Court of Canada — Case, 
 
 adding fcrmal rule of Court to— AppeM placed 
 at foot of list for hearing to permit the rule of 
 Court below appealed from to be added, ooun- 
 sel for respondent consenting. 
 
 Wallace v. Souther, 6th Fehruary, 1878, 
 
 Cas. Digest, 383. 
 
 264. Supreme Court of Canada -Case on 
 
 appeal Supreme Court of Canada— Adding for- 
 mal judgment belovir — Hearing of appeal to the 
 Supreme Court of Canada allowed to stand over 
 till case perfectci' by the addition of the formal 
 judgnjent of the Court below . 
 
 Kearney v. Kean, 4th Fehruary, 1878, 
 
 Cas. Digest, 3S3. 
 
 2(Wi. Supreme Court of Canada— Costs— 
 
 Between solicitor and client — Application for 
 an order directing registrar to tax costs between 
 solicitor and client refused. The Chief Justice 
 stated that tlie question was duly considered by 
 the Judges at the organization of the Court, and 
 it was not thougiit advisable to regulate costs 
 between solicitor and client. 
 
 Boak et al. v. Merchants' Mar. lux, Co., 
 3rd June, 1879, Cas. Digest, 387. 
 
 266. Supreme Court of Canada -Costs- 
 Increased counsel fee— Quashing appeal— An 
 application for increaseil counsel fee is not one 
 for the Full Court, but should be made to a 
 Judge in Chambers. When an appeal is 
 quashed for want of jurisdiction, the Court may 
 order the taxation and payment of costs. 
 
 Be.amiih et at. v. Kaultiack, '>th June, 187',>, 
 
 Cas. Digest, ,387. 
 
 267. Supreme Court of Canada — Costs 
 
 not given in haheax corpnt matters —No costs 
 given in haf'eas corpw* appeals, as a general 
 rule, in fai'orem lihertatU. 
 
 In re Q. R. Johnson, 20th Fehruary, 18S'l, 
 
 Cas. Digest, 386. 
 
 But where an appeal in a haheax cor/mx matter 
 had been proceeded with after the discharge 
 of the prisoner and for tiie mere purpose of 
 deciding the question of costs, the appeal was 
 dismissed with costs. 
 
 Fraser v. Tupper, 21.it June, 1880, 
 Cas. Digest, .386. 
 
1103 
 
 PRACTICE. 
 
 1104 
 
 268. Supreme Court of Canada -Counsel 
 
 —Foreign, not heard— Counsel, ifsidinj; in tlie 
 State of New York wished to be heard on ))ehalf 
 of appellants in an appeal pending heforo the 
 Supreme Court of Caiiada. Refuseil. 
 
 Halifax Ci'y IVy Co. v. The. Quhu, 
 
 Dth May, JSS.}, ('as. Digest, 380. 
 
 260. Supreme Court of Canada-Factum 
 
 — Irrelevant matter in factum, reflecting on the 
 conduct of one of the Judges of the Court below, 
 ordered to l>e struck out. 
 
 irnllacii V. Sou'htr, ,'ith Fihriiary, 1S7S, 
 
 Cas. Digest, 301. 
 
 270. Supreme Court of Canada-Factum 
 
 — Point not raised by — A point is raised at the 
 hearing not in factum, ami counsel for respon- 
 dent therefoi'e objects that he is not prepivred to 
 argue it. The Coin-t adjourns hearing for a 
 week. 
 
 ]\'e>itt)-ii Conulkt li'y Co. v. IViudxor and 
 Aiiiiapolin R'y Co., (!/k Fthruary, 1S7(), 
 
 Cas. Digest, 301. 
 
 271. Supreme Court of Canada -iiearln;;, 
 
 notice — Affidavit of service — When appeal to 
 Supreme Ctiurt of Canada heard tx parte, the 
 Court requires an affidavit proving service of 
 notice of hearing, ■ 
 
 Ktarnty v. Ktan, olxt Jan., IS70, 
 Cas. Digest, 303. 
 
 272. Supreme Court of Canada- Judi;- 
 
 ment — Xunn //ro /uiii: — The respondent, the 
 
 assignee of an insolvent estate, having died 
 
 between the day of hearing of the appeal and 
 
 the day of remlering judgment, on motion of 
 
 counsel for appellant the Court orders the order 
 
 in appeal to be entered viiiic pro tunc as of the 
 
 date of hearing. 
 
 Mtrchanta' Bank v. Smith, Slrd May, 1SS4, 
 
 Cas. Digest, 306. 
 See Supra, 2,")3. 
 
 273. Surpri.se— Judicial discretion - Ap> 
 
 peal— The County Court Judge gave judgment 
 for defen<lant on appeal from .he Magistrates, 
 and afterwards granted a new trial, on tlie ground 
 of surprise and the discovery of new evi<lence. 
 The only element of surprise consisted of the 
 fact that a witness not examined in the Magis- 
 trates' Court had given evidence in the County 
 Court. 
 
 ife/d, that the discretion of the Judge had 
 been unwisely exercised in granting a new trial 
 and hat there was an appeal under section 99 of 
 the County Court Act, 1880. 
 
 Orcrxeerx of the Poor v. McKenzie, 
 
 3 R. &G., 259. 
 
 274. Term — Attendance on — After the 
 
 first day of Term gentlemen of the bar iiri' not 
 expected to be in attendance in Court, unless 
 they have particular business. 
 
 Skinntr v. Lane, JamcH, '.MT. 
 
 27.1. Time -Answer to amended wr*t - 
 
 When to be put in— I'laintitrs, having aniein'i'ii 
 their writ, served it on defendant, with a notice, 
 ' indorsed, re(|uiring him to answer witiiin fnur- 
 teen <lays, otherwise, plaintiffs to be at lil)erty to 
 sign final ju<lginent by default, and have tiiewrit 
 taken }iro confesno. Defendant, who had duly 
 put in his answer to the original writ, diil not 
 within the time limited in the notice answer the 
 amendment, and plaintiffs obtaine<l a rule iilsl, 
 calling upon him to show cause why the writ 
 should not be taken /H'o ronfe<in, etc., before tlie 
 argument of which rule defendant ])ut in ii 
 answer, not denying the statements in tlie anieml- 
 ment but leaving the proof of them to the 
 plaintiffs. 
 
 Ill fit, that the rule nisi must be discliiirged 
 with costs, defendant having a right to p'U in 
 his answer at any time before the marking nf ii 
 defaidt. 
 
 L,an:ion 1:1 a!, v. lielloni, R. K. 1)., 10". 
 
 276. Time— Enlarsenient of— Tiie time 
 
 for ajjpearing and jdeadiug having been enlaigeil 
 by several successive orders granted on iiearing 
 affidavits urging the necessity for further time 
 and accounting for delay, which orders wcie 
 also appealed from. 
 
 Held that under Order LX, Rule .'), the Jndge 
 at Chambers had power in his discretion to 
 extend the time even where the ap])licatinn was 
 not made until after the expiration of the time 
 previously appointed or allowed. 
 
 lieynold-i v. ilallihar (laid Minimj Co., 
 
 7R. &(i.,4()(); 
 8 C. L. T.. 17. 
 
 277. Time- Extension of— Ex parte order 
 
 — An order allowing plaintiff an extension of 
 time for appeal hiiving been granted ex jmrh, 
 where the plaintitf was out of the jurisdiction, 
 and defendant might have applied for further 
 security for costs, the order was quashed. 
 
 Plaintiff, not l-aving received notice of tlie 
 decision from the Prothonotary in time in 
 enable him to appeal, was allowed time for tliiit 
 purpose on giving security. 
 
 Barclay v. Duttan, 7 R. & G., iWl 
 7 C. L. T., 52. 
 
 See TIME. 
 
1105 
 
 PRACTICE. 
 
 1106 
 
 2J8. TreHpaNH— Writ In— II Is not ennen- \ the agrtfinent ami nwanl, and was not Hied 
 
 tially iit'ffHHiiry that the writ in trettpasH Hhould 
 (li'stiil)e all the IxiuiidariuB of tlie plaint it!"!) 
 Iniid. 
 
 T>,d V. Unlit, '2 Tlinni., 4*-'«. 
 
 Set TRESPASS. 
 
 until Home time after tiie ))rin||,'ing of this s<dt. 
 
 //(/'/, tliat tlie record was inadniiHsilile. 
 Hdhj'nx liaukiwj Company v. Wormll ct a/., 
 
 4 R. &<!., 4H-2. 
 
 281. Verdict excessive 
 2Ift. Trial - Practice on - A plaintiflT new trial— 
 
 shoiilil go into tiie wliole of his case in tlie tirnt 
 instance. It is not coni|ietent to him to rely 
 upon a /irima Jhrii: i.-me in the tirst instance 
 iiml then support it l>y further evidence in rcjily. 
 
 SV' PLEADING. 
 -Remittitur or 
 
 sm new trial. 
 
 282. Where an Individual or corporation 
 
 is liahle to indictment for non-repair, an action 
 
 It is in tlie discretion of tlie Judge whetlier he ^vill lie at tlie suit of one wlio suffers special 
 
 will iillow the |)Iaintiff to give evidence in reply, ' injury. 
 
 Imt such discretion may l.e reviewed l.y the ] „.„/^, ,. ,. (_'i,y „/ Hu/lfax; 4 R. & d., ;171. 
 
 L'nurt. 
 
 X<(ti'!/ V. Foii-lif ft nl., I N. S. 1)., 49.">. ! Atfinned on appeal to the Sui)renie Court of 
 
 Canaila. 
 
 3<:e TRIAL 
 
 280. Varlance-Non-sult-Record-Plaln- 
 
 titf siiccl on a money bond. There w as a var- 
 iiinue between the ileclaration and the proof, the 
 ilcclaratioii setting out the words of the condi- 
 tion, upon performance of which the liond was 
 to liocome void, instead of the oliligatory part of 
 the hdiid, and the plaintiff was non-suited with a 
 rule to set aside the non-suit. On the first day 
 of Term plaintiff obtained a rule nisi for an 
 iunindmeiit of the declaration and that a new 
 liiiil be granted, because the Judge on the trial 
 liiul improperly refused to grant the amendment. 
 At the argument, plaintiff moved to discharge 
 this rule with leave to move for another similar 
 to it, but adding the words "on reading the 
 minuteii." The affidavit of plaintiff's counsel 
 stated that the Judge had refused leave to insert, 
 as one of the grounds in the rule, that the amend- 
 ment had been refused. This was contradicted. 
 
 Hi III, that the rule »in must be discharged, as 
 the Judge's minutes were conclusive as to what 
 took place at the trial, ami plaintiff had his 
 lemeily under the Statute for the alleged refu- 
 sal to grant a rule ; that the plaintiff was prop- 
 erly non-suitetl on account of the variance, and 
 tliat the non-suit could not be set aside for the 
 alleged refusal of the Judge to grant the amend- 
 ment, even assuming plaintiff's account of the 
 matter to be correct. 
 
 The declaration also contained a count on an 
 award in a prior suit on the same bond. The 
 said suit was brought for the first instalment, 
 hut the arbitrators to whom the matter was 
 referred by agreement awarded the whole 
 amount of the bond to the plaintiff. The 
 present action was for the third instalment. A 
 record was made up in the first suit setting out 
 
 Cas. Digest, 98. 
 
 i 283. Witness, recalllnK-The defendant's 
 
 counsel desired at the close of plaintiff's case, to 
 recall a witness to examine him as to what he 
 meant when he spoke of the delivery of the deed, 
 * having already had the opjiortunity of cross- 
 examining him upon the point. The Judge who 
 tried the cause declined to allow the witness to 
 l)e re-called for that purpose. 
 
 Hf/il, that it was a matter within the discre- 
 tion of the Judge, and that he had exercised the 
 discretion wisely. 
 
 Graham v. (Iraham, '2 R. & C, '265. 
 
 284. Winding-up order-Notice -Second 
 
 application on same petition — An order was 
 made for the winding-up of the company, and, 
 un<ler that order, a provisional li(]uidator was 
 appointed. The order was set aside, as notice 
 had not been given as re(|uire<l by the Statute, 
 Xotice was thereupon given, and a new order 
 taken without any further petition. 
 
 Hdd, that no new petition was necessary. 
 In re. Steel Company of Canada (Limited), 
 \ ,5R. &(!., 141. 
 
 On apiiial to the SH/rreme Court of Canada, 
 Held, reversing the judgment of the Supreme 
 I Court of Nova Scotia, Fournier, J., dimentiwj, 
 ' that 45 Vic. , c. 2.3, was not applicable to such 
 company. 
 
 ] The Merchnntu' Bank of Halifax v. Gille»pie, 
 I lOS. C. R., .312; 
 
 5 C. L. T., 276. 
 ! 
 
 285. WIndlng-up order-Petition for— 
 
 Insolvency must be shown— In applying for a 
 winding-up order it should be shown in the 
 petition that the company is insolvent, the 
 
1107 
 
 PRACTICE 
 
 1108 
 
 genornl sutcmcnt "that the company ia insol- 
 vent within the Act " not Injing 8iirticient. 
 
 A rcHtraining order to prevent tho exeuution 
 of process ftt the instiinoe of juilginent croilitors 
 ciMi only he iippliotl for after prunentation of tlio 
 I>ctition anil such petition can only ho presenteil 
 after four tlays' notice. Any earlier presentation 
 or application is irregular. 
 
 fn re /hf Eldorado Union Sti.re Co., 
 
 V. R. .^ (J., r)14 ; 
 6 (\ L. T.. 542. I 
 
 286. WIndins-up order Publication of, 
 
 notice — Notice of application to wind-up an 
 insolvent hank, under the Dominion Act of 1SS2, 
 by puhlication in the Canada (lazflte and 
 lioiitd Ouvtlc of the Province, anil two Halifax 
 and two Liverpool papers, hild sutheient. 
 
 Re. the. Dank oj Lirerpool, 6 R. & C, 531. 
 
 The judgment in this case was reversed on 
 appeal to the Supreme Court of Canada. 
 
 14 S. C. R., 6.'>(). 
 
 287. Winding-up order, requisites or— 
 
 Held, per McDonald, C. J., and McDonald, 
 Sniitli and Weatherhe,, J.I., tiuvt a winding-up 
 order must name the permanent liijuidator, and 
 coulil, therefore, only be made after notice to 
 creditors, contributories, &c. 
 
 Rigby and Thompson, JJ., dU^entimj. 
 
 In re Steel Company of Canada (Limited), 
 
 5 R. & (i., 49. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, that 45 Vic, c. 2.S, D., was not applicable 
 to such company. 
 The .Merchants' Bank of Halifax v. Oillespie, 
 
 10 S. C. R.,312; 
 5 C. L. T., 276. 
 
 288. Writ -Attorney subscrlbing-Chap- 
 
 ter \:U, Rev. Stats. (3rd series), "Of Pleadings 
 and Practice in the Supreme Court," sec. 197, in 
 reference to the filing of bail in cases where the 
 Judge has refused a rule nixi for an appeal, and 
 an appeal is taken under the Statute, is confined 
 in its operation to private parties, and does not 
 extend to the Crown. 
 
 The proceedings having been instituted in the 
 name of the Attorney-General of Canada, a rule 
 niiii was taken out to set them aside, on the 
 ground that the Attorney-General of Canada 
 not having been admitted a barrister or attorney 
 under Rev. Stats. (3rd series), cap. l.SO, was not 
 qualifled to subscribe a writ in this Province. 
 
 Held, that the objection not having been taken 
 ^intil after a plea pleaded and a trial had, had 
 l>een waived. 
 
 Semhle, that tlie signing of the process in tlie 
 manner excepted to, if objectionable at all, wm 
 merely an irregularity and not a nullity. 
 
 Queen v. Hyernon, 2 N. S. D., 276, 
 
 289. Writ, direction of-Constructlon of 
 
 Rev. Stats., c. 75, 8. 25, and Prov. Act of 1863, 
 c. 1, 8. 13— The directing of the writ, in a Hiiit 
 before a Stipendiary Magistrate for suaiiiiurs 
 wages, to any of the constables of the Couiity 
 instead of to the Sheriff, or his deputy, is nut 
 a nullity, but a mere irregularity which is wiiivetl 
 by appearance. 
 
 The jurisdiction of the Stipendiary Magistrate 
 under Revised Statutes, chap. 75, is concurrent 
 only with that of two Justices of the Peace ami 
 not exclusive. In this case the writ was signeil 
 by and made returnable before the Stipi'mlimy 
 Magistrate, but two .Tuatioes of the Pciite were 
 substituted for him on the trial by the re(iiiest 
 of the defendant. 
 
 Held, that the irregularity, if any, was ciireil 
 by the assent of the defendant. 
 
 Construction of Revised Statutes, chap. 7."), 
 sec. 25, and of Provincial Act of 1865, chap. 1, 
 sec. 13. 
 
 Anderton v. Maxon, 1 N. S. D., 1; 
 2 0M„.TO. 
 
 290. Writ-Irregularity-A writ prima 
 
 facie regular will not be set aside for an irregu- 
 larity in the return day appearing upon affidavit. 
 Cutlip v. Cook, James, 445. 
 
 291. Writ — Irregularity of -Plaintiff 
 
 brought an action against defendant, declaring 
 
 ; in form and substance upon a judgment obtaineil 
 by plaintiff's intestate, and duly recorded almut 
 twenty-three years previously. Defendant cti- 
 
 ; tered an appearance to the writ, and 8ul)se(|uent- 
 ly thereto plaintiff obtained an order for leave tu 
 amend his declaration by adding to tlie second 
 count the words "and also for execution tliere- 
 
 I of." Defendant then applied to set aside for 
 irregularity the writ and proceedings, on the 
 ground, first, that the judgment sought to Iw 
 recovered, being more than twenty years old, 
 
 I an order or rule authorizing the issue of tlie writ 
 should have been obtained before it was issued ; 
 second, that the writ was not in the form pre 
 scribed by law ; third, that the whole proceed 
 
 , ings were not in accordance with the provisions 
 of the Revised Statutes relating thereto. 
 
 Held, that although the writ was not, either 
 in its direction or its form, framed in accordance 
 with the statutory provisions, yet regarding tiie 
 spirit of the Act, and the circumstances of the 
 case, the defendant was as fully apprized of the 
 
1109 
 
 PRINCIPAL AND AGENT. 
 
 1110 
 
 pliuntifTn purpose a« he would have huen if the j 
 
 ffiMii |ircHLTil>eil h.ul hccn exiiutly adopted, and 
 
 tlivrnletoset unidetlie proceedings wa.i tliorefore 
 
 (li.iclmrged. 
 
 Craiii' V. Jai-oh'i, 1 N. S. 1)., 1S7, 
 
 392. WrltN or replevin -Beturn- Writs 
 
 of I't'pluvin ahoidd he made returnahle under the 
 Act of IS,")4, eaji. 7, and not on a special day. 
 
 Johiisnii. V. A'oii, Janie.'*, 446. 
 
 293. Writs -Return of-Writs Issued and 
 
 servfil in I'ictou and returnahle in Ciipe lireton 
 liuiiiM he made returnahle in thirty day.s after 
 service ; hut the defeut will he unieiided upon 
 })iiyiiH'nt of costs. 
 
 Oirroir v, Di<'kion ft ah, James, 445. 
 
 29t. Writ of summons — Practice — Ser* 
 
 vice after six months — Wiiere a writ of sinn- 
 mmis was served more than six months after 
 iasuu, and the defendant entered into negotiu- 
 tioiiJ for a settlement with knowledge of the 
 service, and did not apply to set it a.^ide for 
 several weeks. 
 HM, that the application was too late. 
 
 Symondx v. lierlcttt et al., 4 R. & (i., 390. 
 
 295. Writs -Signing of by Deputy Clerk 
 
 —The Deputy Clerk of the County Court held 
 aiitlKiiizcd to sign writs, although the Clerk he 
 nnt ill, ahsent from home, or otherwise unahlc 
 to attend to his duties. 
 
 Bank of Xora Srolln v. MrKr.rroir, 
 
 5 R. i\; (!., 27r). 
 
 296. Writ -Signed liy Deputy Clerk - 
 
 A writ of sunnnons was signed in tlie name of 
 the Clerk of the County Court hy a Deputy 
 appointed hy the Clerk, who, it was contended, 
 could only appoint a deputy to act for him when 
 he was " ahsent from home, sick, or otherwise j 
 unable to attend to his duties." | 
 
 Hi^lil, that the onus was on the party seeking 
 to avoid the writ to show that when it was 
 signed Ijy the Deputy the Clerk was neither 
 " sick, ahsent from home, nor otherwise unahle 
 to attend to his duties." 
 
 Kandick v. Arthur, 5 R. & C, 28'J. 
 
 297. Writ — Issued witliin tlie period 
 
 limited by Statute of Limitationa— When a ' 
 Bumniary writ was returned unserved, and after 
 tlie lapse of a year an alias writ for the same 
 cause of action, laying the damages, however, 
 at more than £20 was sued out, neither the 
 lapse of time nor the variance in the amount of 
 ges will destroy its character as an alias. 
 
 As tlie first writ was the commencement of 
 the action, no replication was rei|uired to the 
 pleu of the Statute of Limitations. 
 
 Smith v. Gillifs, 2Thom., M\. 
 
 PRECEDENCE, AT THE B.\R 
 Se^. (tIJEEN*S COUNSEL. 
 
 PRESCRIPTION - 
 
 EJECTMENT-LIMITATIONS OF ACTIONS 
 AND SUITS -TRESPASS. 
 
 PRESENTMENT- 
 
 ■SV' BILLS OF EXCHANGE AND PROMISSORY 
 
 NOTES. 
 
 PRINCIPAL AND AGENT. 
 
 1. Agency-Power of attorney given to 
 
 insurance agent — Company not liable for 
 transactions outside their ordinary business— 
 The defendants, an insurance company, gave a 
 power of attorney to their agent, whereby they 
 constituted him their true aadhiwfnl attorney 
 to act as the agent and receiver of the said com- 
 pany, and for that purpose to effect insurances 
 on ))ehalf of the company, and the power of 
 attorney conferred other powers necessary to 
 the ordinary working of such a company. The 
 defendants deposited with the plaintitT, a hanker 
 !Mid broker, and bought exchange, etc., the ac- 
 count l)eing kept in the name of the company, 
 and in the course of the trans.action he became 
 indebted to the plaintiff in the sum of S.SI4.18, 
 for which action was brought. 
 
 Held, that defendants were not liable, the 
 transactions being outside of their ordinary 
 business. 
 
 McDonald v. Royal In.-<. Co., 3 R. & fJ., 428. 
 
 2. Agent accounting to Ills principal- 
 Receipt not conclusive — Plaiutiflfa hired a vessel 
 to N. & Co. to carry a full cargo from Halifax 
 to Liverpool, the freight to be £850, and the 
 plaintiffs to take the freight and primage, as per 
 hills of lading, to the extent of £850, in final 
 
nil 
 
 PRINCIPAL AND AGENT, 
 
 1112 
 
 jwyineiit at Halifax, without rei-ourso on N. A 
 Co., wlioHc ri'HiMiiiMiliiiity wan to cuiuio aM hooii 
 as tiiu gooilM wcru on lioaiil, tlio vchhoI holilint{ a 
 lien on the cargo for freight. 'I'lio deficiency, if 
 any, wan to l»e jwiid liy N, it To., mm\ tlieexcenH 
 over t'H."i(» to lie i)rfiviileil tor l>y numter'H ilraft 
 agaiiiHt freight. Of the freight on the cargo, 
 tM.Vi wuH payable liy third perHonn, ami tdO.'i la. 
 8<l.l)y X. it' Co., making in all ill, 047 7h. H.l. being 
 an cxccNHof tin; 7h. Hil., for which the niattter 
 accepted a draft payable at the otlice of defend- 
 ant, who, in this tranwiction, was the agent of 
 the idaintitTs. The acceptance was indorsed 
 before maturity to V. k H., for value. At Liver- 
 pord the master gave an order in writing to 
 defendant's house to pay the d-aft out of the 
 freight first collected. Defendant onl> admitted 
 having collected ir)17 Ss. <»d., f)f which ho paid 
 to the captain Ci') l.')s. 7d., the balance being 
 accounted for thus : " Disbursements, t''2S4 4s. 
 Od. ; paid acceptance of N. k Co., fllt7 7s. 8d.'" 
 The captain, after learning the items of the 
 account, some of which were professedly un- 
 settled, being stated as " about " the sums set 
 down, gave a receijit for the t.V) ITw. 7<1., but 
 shortly after wrote defendant, disputing the 
 correctness of the acccmnt, and expressly notify- 
 ing the defendant not to part with the €197 7s. 
 8d. deducted from the freight. 
 
 He!(f, that the receipt could not be relied on 
 as conclusive in an action by the plaintiff against 
 the flefcndant for money had and received, and 
 that the items of disbursements could only be 
 gived under a plea of set-ofT. 
 
 IlfM, fnrlher, that the indorsement of the 
 acceptance to P. i% 15. gave them no lien on the 
 fund in Liverpool, and that they could not com- 
 pliiin of the revocation of the captain's order to 
 pay the draft ; and that, apart from this ground 
 altogether, the defendant, as the agent of ti'd 
 plaintiff, was Iwund to account to his principal, 
 and could not set up the rights of third persons 
 in an action by the principal. 
 
 Held, afso, that the action for money received 
 was properly brought by the plaintiff as princi- 
 pal against the defendant as his agent. 
 
 McFalridije et at. v, Carvill, 4 R. & G., 286. 
 
 3. Agent— Authority of-Bankruptcy of 
 
 principal determines authority of agent. 
 
 Roper V. Shannon, 2 N. S. D., 146. 
 
 4. Agent-Anthorlty of-Defendant drew 
 
 up and placed in the hands of Allan, a real 
 estate agent, a memorandum in the follow- 
 ing form : "I will sell ten acres of land (includ- 
 ing the water lots), as also two and three- 
 quarters acres of laud belonging to Judge John- 
 
 stone adjoining, for the sum of four hmi<lr<?il 
 and thirty dollars pet acre e(|ual to ?'.'i4S'.>.,'ii» 
 or t;i37(» 12s. 6d., and on which sum I will 
 allow you a commission of two per cent." ihe 
 memorandum then specified the terms of hA: 
 Allan entered into a written agieenient with 
 plaiutitr for the cale of the land .,n the ttTiiis 
 mentioned. The agreement not being canii'd 
 out the plaintiff brought a "uit for specitic puv- 
 forinance. setting out the two agreements. 
 
 Ifi/il, that the memoraiid\nn handed tn .Minn 
 was a pf)wer to sell on the prescribed tfiiiis 
 without restriction as to purchaser, if the teniis 
 coidd be obtained. 
 
 Honi'<hy V. Johnxfow, 3 X. S. I)., 1. 
 
 5. A«ent-Aiithorlty of -Where the plain. 
 
 tiff, having merely an authority as agent of tho 
 patentees of a certain invcn*ion to make jmi- 
 posals or ofl'ers to such jjorsons as he sliould see 
 fit, to bring the invention into use, receiving 
 from the i)atcntees one-fourth of the royiilties 
 or profits for his services, entered into an agree- 
 ment with defendant wherein it was recited limt 
 thei)atentce8 had disposeil of one-fourth iiilcTent 
 in the patents to plaintiff, and whereby ])I linliff 
 disposed of one-half his interest in the patents to 
 the defendant in consideration of tlie sum of 
 .*000, !?4n(» of which was afterwards paid. 
 
 H>f(l. that the verdict in favor of the lOaintiff 
 in an action brought to recover the balance of 
 the consideration nicmey coulil not be snstiiineil 
 without proof that the defendant assented to the 
 agreement with full knowledge of the only in- 
 terest to which plaintiff could lay claim in rehi- 
 tion to the patents. 
 
 Quatrc, whether the plaintiff could succeeil 
 even after bringing home such knowledge to 
 defendant. 
 
 Wilkins, J., (li'*''ent!nij, although his opinion 
 did not necessarily conflict with the above pro- 
 position, as he considered that "the parties, 
 when they contracted, had the same knowledge 
 of all the facts." 
 
 Harrinf/ton v. Heynoldii, l R. & C, 134. 
 
 6. Agent-Llablllty of principal -fleneral 
 
 agency— Special — Defendant obtained » loan of 
 £200 on mortgage from Cogswell through » 
 solicitor doing business at Wolfville, who made 
 a charge of £10 for conveyancing and commis- 
 sions, and a furthe.- chaige of £10 for guaran- 
 teeing the defendant from loss, in case the prin- 
 cipal was called for within five years. The 
 mortgagee did not authoi ize the taking of any- 
 thing beyond the legal rate of interest, was not 
 cognizant of it, and did not participate in it; 
 the rate of interest stipulated for was six p«f 
 
1113 
 
 PRINCIPAL AND AGENT 
 
 1114 
 
 cent., wliiiili wiiH all that tlic mortgagee received. 
 Till! siiliuitor Htateil in evitleiice tliat wiien tiiu 
 iirfL'tiiliiiit applied to liiiii for money ho wrote to 
 tliu tiKirtgaget , who agreetl to lend it on tiiu 
 KcciU'lty oti'ered, and Kent a sum wiiich, together 
 with an amount already in hia ImndH, made up 
 lilt' i'.tH) ; that he wax not the agent of the 
 mni'tgii^'<!e in any caHe to invcHt IiIm money, and 
 tliikt ill remitting the intere.st he deducted 
 iiiithiiig for commiHHion. Hut defendant Hwore 
 that (III the tirHt ouciiHion when he applieil to 
 tliu Niilicitur, the hitter trdd him he had t:2(N> to 
 lend, tiiat ho had advertised it, and that it wuh 
 tlio nioi'tgagee'M money. 
 
 Ildd, that the wrong done tu defendant wax 
 nut done liy the mortgagee, liut l)y the Holicitor, 
 nut us iiiortgageeV agent, hut while acting on 
 his own hehiilf, and further, that iiHHuming him 
 to lit' the agent of tiie mortgagee, a,n he \\i\n not 
 a general agent, liut a particular agent, defen- 
 (hint could not aHMume that he had been author- 
 i/.eil to do an illegal act. 
 
 Alinou It nh V. Foot, K. E. IX, l. 
 
 'u Agent or Insurance company-Proof 
 
 of agency — H. P. represented himself to he the 
 iiguiit of the defendant company, employing suli- 
 ugents, elfecting policies and paying losses; in 
 their name, and it was stated by one of the pro- 
 f(;ssed .suli-ageiits of the company that H. P. 
 wii.i the ajjont. This was not contradicted by 
 the alleged agent, whose evidence was read at 
 the trial, and who admitted that he had acted 
 as agent of the company, and had sent the pre- 
 liminiiry ])roofs in this case to the company. 
 Ihkl, that this was sulhcient proof of agency. 
 Pe/ijiit V. X'orlh liritiKh ct- Mtrcantik 
 
 Iiu*. Co., 1 R. & G., 219. 
 
 8. Agent suing as principal - Amendment 
 
 by adding principal as plaintiff— L. W. brought 
 un iictiou to recover damages for the breach of 
 a contract, made by defendant, for the supply 
 of a (juantity of canned lobsters. 
 
 It appeared that in making the contract, 
 plaintifl" was merely acting as agent for M. L. 
 \V., and that he had no personal interest in the 
 tninsaction beyond the fact that his remunera- 
 tion was dependent upon the amount of profit. 
 
 Htlil, tliat the understanding between plaintiff 
 ami M. L. \V., as to the mode in which plaintiff 
 was to 1)6 remunerated for his services, could not 
 «nal)le the latter to recover in his own name for 
 a breach of the contract. 
 
 Leave having been granted, on an application 
 made for that purpose, to amend, by adding the 
 name of M. L. W. as plaintiff, 
 
 Hdd, that under the wording of Order XVI., 
 
 Rule 10, Huch an amendment could not be mado 
 in the absence of a written consent by tlie party 
 to be joined. 
 
 \\'Hr~Mr<i V. I(VW>, 7 R. & (1., 414. 
 
 0, Auctioneer — Authority of- An auc« 
 
 tioneer was instructed to sell laud in lots liy 
 auction for three defendantH, and after selling 
 Home of the h)ts announced in the presence of 
 two of the defendants that if any one wanted to 
 j iiuy he should come to his othce and he would 
 be prepared to treat for the purchase of the 
 balance. Phiiiititr fjurchased a lot ut private 
 sale from the auctioneer, and a memo, of the 
 transaction was signed by the auctioneer and 
 the purchaser. 
 
 Htld, that even assuming an ac(iuiescencc of 
 the two defendants, who were present at tlie 
 invitation given by the auctioneer, bidding upon 
 themselves and the other defendant, yet as that 
 invitation was only to come to his ofiice, when 
 hu would be prepared to treat as to tht balance 
 of the lots, the uc({uiescenc« did not give him 
 any authority to bind the defendants by a pri- 
 vate sale. 
 
 Hurt V. I'ryor et uL, 1 R. & C, 53. 
 
 10. Broker effecting Insurance -Agent of 
 
 insured — Plaintiff applied to one Haley, who 
 acted as a broker for the Shipowners' Associa. 
 tion of Windsor, and also for the defendant 
 company doing business at Halifax, for insurance 
 on one-fourth interest in a vessel on a voyage 
 from Cochin to New York via Colombo and 
 Alipee. The broker replied that the " Ship- 
 owners' Marine " did not care for the risk, but 
 he tiiought he could place her. Plaintiff wrote 
 him, saying in substance : " You may place in- 
 surance on Charlit at your figures. I think it 
 should be done for lliree per cent., but do the 
 best you can. Let me know as soon as possible." 
 The broker then applied to the defendant com- 
 pany for insm-anceon plaintiff's vessel, "Cochin, 
 All pet and New York," but the vessel sailed and 
 was lost on a voyage from Cochin via Cokmibo 
 and Alipee to New York. 
 
 Held, that the broker was the plaintiff's agent 
 and inasmuch as the insurance he applied for 
 was on a different voyage from that on which 
 the vessel sailed and was lost, the plaintiff must 
 fail. 
 
 Held, further, that notice of abandonment was 
 necessary, although the suit was brought, not on 
 the policy of insurance, but for not issuing a 
 polic;. . 
 Dickie v. Merchants' Marine Insurance Co., 
 
 4 R. & G., 244. 
 
1115 
 
 PRINCIPAL AND AGENT. 
 
 1116 
 
 11. Common carriers — Contraet made 
 
 with agent— Agent's employees— Power to do 
 certain acts— Ordinary course of business- 
 Liability of principal in case of loss— A num- 
 ber (if cases of wine were delivered to 8. & Co., 
 defendants' agents, at the port of Antwerp, to 
 be forwarded to plaintiff at Halifax, N. S. Tlie 
 bill of lading was signed by S. & Co., pp. (1. K., 
 and described the goods as shipped in good order 
 and condition. The goods were shipped from 
 Antwerp by a steamer running to Liverpool G. 
 B., and on their arrival at that port were re- 
 shipped on board one of tlie defendants' steam- 
 ships for Halifax. On their arrival, plaintiff 
 was notified of the fact by C. & Co., defen- 
 dants' agents at Halifax, and was recjuired 
 to pay the freight and take delivery. C. & Co., 
 also demanded and received from plaintiff his 
 share of a general average loss consequent to an 
 accident to the ship on the voyage. On examin- 
 ation of the goods previous to delivery, it was 
 found that several of the cases had been tam- 
 pered with, and a number of bottles of wine 
 emptied of their contents, (i. K., by whom the 
 signatire of S. & Co. was affixed to the bill of 
 lading at Antwerp, had no written authority to 
 do so, but was the f^hief clerk and proxy of the 
 firm, and acted in the usual course of business. 
 
 Htld, per James, J.— That the bill of lading 
 having been produced by the plaintiff at the 
 retjuest of defendants' agent at Halifax, and 
 having been recognized by them, and they hav- 
 ing demanded and received from plaintiff his 
 proportion of the general average loss, the 
 papers, whether properly signed or not, must 
 be treated as the contract under which defend- 
 ants received iiud carried the goods ; that 
 defendants were bound by the admission in the 
 bill of lading that the goods were received in 
 good order and condition, and the goods hiving 
 been tampered with while in their possestion, 
 in the absence of evidence to bring them within 
 the exemptions in the bill, defendants were 
 liable. 
 
 Per McDonald, J.— That the appointment of 
 S. & Co. as defendants' agents authorized them 
 to perform all things usual in the line of busi- 
 ness in which they were employed, and involved 
 power to do particular acts by others within the 
 scope of their business. That G. K. as their 
 chief clerk was competent to sign the name of 
 the firm to bills of lading in the ordinary course 
 of business, without any written authority to 
 do so. 
 
 That the signature to the bill of lading having 
 been proved to have been made in the usual 
 course of business, must be taken to have been 
 authorized by the defendants, especially as the 
 evidence showed that it was afterwards adopted 
 
 and acted upon both by .S. & Co. and by the 
 defendants' agents in Halifax ; that defeniliiiits 
 were bound to bring themselves within the 
 exemptions contained in the bill of lading, aiul, 
 having failed to do so, were liable. 
 
 Honne v. The Montreal Ocean S. S. Co., 
 
 7 R. &G.,.S12; 
 7 C. L. r., .STo. 
 Affirmed on appeal to the Supreme Court of 
 Canada. 
 
 12. Foreign principal — Liability of-i 
 
 foreign principal is presumptively entitled to 
 sue and be sued upon contracts made Ijy his 
 agent here, although the name of the principal 
 was not disclosed by the agent at the time of 
 making the contract. 
 
 Hardy tt al, v. Fairbanks tt al., James, 432. 
 
 13. Liability of agent to third persons 
 for misrepresentation or assumption of autho- 
 rity — Plaintiff brought an action for the price of 
 goods furnished to defendant, who professed but 
 without any valid authority, to be acting for the 
 estate of a deceased person named Riciiurda. 
 Plaintiff and defendant were equally aware of 
 the death of Richards but yet the account was 
 still kept in the name of Richards, who had in 
 his life time had dealings of the same nature 
 with the plaintiff. 
 
 Held, that if plaintiff could recover at all 
 under the evidence, which was doubtful, he could 
 only do so on a count for the breach of defen- 
 dants' implied warranty of his authority to act 
 
 for the estate. 
 
 Outram v. Doyle, 1 R. & G., 1. 
 
 14. Power and authority of agent as to 
 
 sale and purchase— General obligation and 
 duty- Plaintiff left the Province in 1838, having 
 ' appointed M. his agent, and returned in 1842, 
 gave a confession of judgment to B., then left 
 again and did not return until 18.'')5. M. ob- 
 tained an assiginnent of the judgment and in 
 I 1852 issued execution. Under that execution 
 : the Sheriff sold the land to M. Defendant had 
 I gone into possession under an agreement made 
 by M. in 1846 to sell the land to defendant. 
 I After a special verdict, a new trial was ordered 
 to see if M. had, whilst acting as plaintiff's 
 agent, purchased the plaintiff's land. 
 
 Sviherland v. Whidden, 2 Thorn., 410. 
 
 15. Principal - Liability for fraud of 
 
 agent— Notice to agent— Defendants contracted 
 with plaintiff for the purchase of a steamboat, 
 the negotiations for the purchase being carried 
 on partly by letters between the defendant* on 
 the one hand and the plaintiff and his agent 
 
1117 
 
 PRINCIPAL AND AGENT. 
 
 Ills 
 
 on the other, and partly liy verbal eoiniminica- 
 ticiis between the defendants and the plain- 
 titf's Hgert. The boat was delivered at 
 .Suimiierside, Prince Edward Island, to the 
 pliiiiitiff's agent (who was authorized by the 
 (lefi'iidanta to take delivery of lier there for 
 them), and by liim taken to Pictoii, the doniicil 
 of the defendants. Tlie defendants examined 
 lier immediately on her arrival at Pictou, and 
 finiling lliat she did not answer the representa- 
 tions made of her by the plaintiff's agent, 
 forthwith notified both the plaintiff and his 
 agent that they would not take delivery of her. 
 An action was brought for the price, to wliich 
 the (k'fei\dant8 pleaded never indebted, nevei 
 delivered, and misrepresentation and fraud on 
 tlic part of the plaintiff and his agent, etc. 
 Tlie learned Judge who tried the cause permitted 
 fviilence to be given of the verbal representa- 
 tiona of the character of the boat made by the 
 plaintiff's agent to the defendants, and the jury 
 found a verdict for the defendants on the pleas 
 of fraud and misrepresentation, etc. (jross 
 misrepresentations by the plaintifiF's agent of the 
 character of the boat were distinctly proved, 
 but there was no proof that the plaintiff himself 
 maile any false representation, or was aware at 
 the time of those made by his agent. , 
 
 Hdd, that the jury were justified in finding 
 fraud, as the principal is bound by the declara- \ 
 t'ons of his agent, and the fraud of the agent j 
 ftoa, therefore, in law, the fraud of the principal, j 
 
 Ptr Young, C. J. , Johnstone, E. J. , Dodd and I 
 DeBiirres, JJ. , Wilkins, J. , dUnentimj, that the j 
 notification given by the defendants to the plain- 
 tiff and his agent was a sufficient rescinding of, 
 the contract, and that it was not necessary in , 
 order to rescind it that the defendants should 
 return the boat to Summerside, or offer to return 
 her thither. 
 
 Pope V. The Pictou Steamboat Co., 2 Old., 18. > 
 
 16. Principal-Obligation of principal to 
 
 third persons— For misconduct of agent— The 
 captain of defendant's vessel purchased a quan- 
 tity of copper from plaintiff to be paid for on 
 delivery. Plaintiff, however, delivered the cop- 
 per to the captain without receiving payment- 
 The defendant's agent, either before or immedi- ! 
 Mely after delivery of the copper, advanced to 
 the captain cash to pay for the purchase. The 
 captain fraudulently retained this cash. ' 
 
 AeW, that the owner (who had received the 
 copper without knowledge of the captain's, 
 fraud and had repaid his agent) was not liable. , 
 Alvioii v. Tremtet, 1 Thorn., (Ist Ed.), 89; 
 
 (2nd Ed.), 117. i 
 
 17. Public agents -Individual liability 
 
 for breach of contract— Board of Health-- 
 Special finding set aside— At a meeting of the 
 inhabitants of .Syilney defendants were appointed 
 a committee to act as a Board of Health, in con- 
 sequence of an outbreak of smallpox. They 
 were subsojuently appointed as such Board by 
 the Lieutenantiftovernor, under chapter '29, R. 
 S. (4th series), and made a contract with plain- 
 tiff for medical services while the disease should 
 continue in the place, at a fixed rate per diun. 
 They dispensed with his services before the dis- 
 ease had been eradicated. In an action for 
 wrongful dismissal the jury found that _ ^,tiff 
 did not know, at the time of the contract, of the 
 appointment by the Lieutenant-Ciovernor of the 
 defendants to be a Board of Healtli, and that the 
 contract was made with them in their individual 
 capacity. 
 
 Jltld, that the action was ex cmitractu, that 
 defendants, whether acting intra rires or ultra 
 rires of their authority as a Board of Health, 
 were to be regarded as public agents, not indi- 
 vidually liable on the contract which they had 
 made on behalf of the public, and that the find- 
 ings of the jury were not warranted by evidence 
 that the contract was made by defendants with 
 plaintiff in the ordinary way in which a contract 
 would be made by public agents. 
 
 Verdict for plaintiff set aside. 
 
 McKay v. Moore et a/., 4 R. & G., 326. 
 
 18. Purchase of goods ft-om agents — 
 
 Bills rendf:red in name of agents — Suit by 
 principals— Defendants had dealt with H. & Co. 
 for some time, not knowing them to be agents 
 for plaintiff, but considering them as principals, 
 the bills rendered to them by H. & Co. being 
 always in their own name. Having purchased 
 a quantity of plaintiff's goods from H. &. Co., a 
 bill was rendered to them in H. & Co.'s name, 
 but subsequently another bill was sent in the 
 name of plaintiff. H. & Co. became insolvent 
 after delivery of the goods, and defendants did 
 not pay them for them, as they had a contra 
 account. On being sued by plaintiff, they 
 pkaded the contra account, and paid the differ- 
 ence into Court. 
 
 The evidence at the trial was contradictory and 
 conflicting, but the jury found for defendants. 
 
 Held, that the verdict should not be disturbed 
 and that the jwyment into Court was no admis- 
 sion of defendants' liability beyond the amount 
 paid in. 
 
 The joint payment of money into Court by 
 two defendants, under the indebtedness counts, 
 is no acknowledgment of their co-partnership as 
 alleged in a special count. 
 
 Baird v. Anderson et al., 3 N. S. D., 181. 
 
IIIP 
 
 PRIVY COUNCIL. 
 
 1120 
 
 19. Belease, by agent without authority 
 
 — Defenilunt, I). McU., being part owner, with 
 plaintiff and the other defendants, of a ))ar(juc, 
 was authorized l)y the other owners to sell her, 
 and did so, depositing plaintitl"s share of the 
 proceeds to his own credit, in the I'ictou liank. 
 I'laintiflf wrote to one S. C. in these terms : " 1 
 want you to put my share of the money in the 
 bank, to my credit ; I have written 1). (mean- 
 ing D. Mel).), stating that I have autliori/.ed 
 you to do so." .S. L'. hatl, before liiis letter 
 came to him, drawn the money from the bank, 
 the manager having advanced it to him on liis 
 own cheque; but defendant, 1). Mel)., upon the 
 letter being shown to him by .S. C. signed a , 
 release to the bank from any claim on account of 
 the payment of the mi ney to .S. C. I 
 
 JJtld, that D. McD. was not justified in 
 releasing the bank, that in doing so he assumed , 
 the liability which the l)ank had incurred !)}• the 
 unwarrantable ])ayment to .S. C. of tiie money ! 
 placed to his (McD's) credit, and that plaintiff j 
 was entitled to a decree for tiie amount of his ', 
 share deposited in the bank. : 
 
 Jitijij-1 V. McDonald tt al., R. E. 1)., 17. ; 
 
 20. Undisclosed principal — Defendant ; 
 
 bought goods belonging to plaintiffs from A., j 
 their agent, A. being indebted to the defendant i 
 al the time ; defendant testified that A. did not ] 
 disclose at the time of sale that the goods were ; 
 not his own ; A. and his bookkeeper testified 
 tliat the principals were disclosed at the time the 
 goods were ordered, and produced a memoran- 
 dum, headed with plaintiffs' name, containing the 
 order signed by defendant, but declined to pro- ' 
 duce their books. Defendant denied that plain- 
 tiffs' name was on the memorandum, when signed 
 by him. The jury found for defendant for .•*"'), 
 the excess of his oftset. The 875 was subsequently 
 remitted by defendant. 
 
 //ikl, that the verdict could not be disturl)ed. 
 Bowmanrilk Machint Co. v. Ihmiintir, 
 
 2R. &C.,273. 
 
 On appeal to Iht Snjn-etne Court of Canada, 
 //eld, that the defendant having purchased 
 the goods without notice of A.'s being an agent, 
 and A. having sold them in his own name, could 
 set off tlie debt due to him from A. personally, 
 in the same way as if A. had been the principal ; 
 and that the verdict should ))e sustained. 
 The Bomanfille Machine Co. v. Dcmjister, 
 
 2«. C. R.,21. 
 
 21. Undisclosed prInclpal-Rlght to sue— 
 
 Sale — Misrepresentation — Estoppel — Plain- 
 tiffs, who held a bill of sale on a quantity of 
 lumber, authorized its sale hy M. & L., and 
 
 assented to a sale to tht defendants, to wIkuii 
 they represented M. & L. as owners. After tiie 
 sale and part payment of the purchase nioncy 
 plaintiffs disclosed themselves as owners ami 
 demanded the balance due, which the defendants 
 notwithstanding paid to M. & L. 
 
 JIM, reversing the judgment of the County 
 Court Judge, that plaintiffs were entitled to 
 recover as the real principals in the transiictioii, 
 and were not e.stopped by the representatidii. 
 
 Weatherbe, J., dis-toi/id, on the ground tliat 
 M. & L. were not shown to have acted as agents 
 of plaintiff's. 
 
 Layton et al. v. Smith it al., 5 R. & C, .Tjl, 
 
 PRISOXER- 
 Stc CRIMINAL LAW. 
 
 PRIVILEGED COMMUXICATIOXS- 
 .Ste DEFAMATION. 
 
 PRIVY COIXCIL. 
 
 1. Appeal to —Appealable amount-In 
 
 order of Her Majcsty-in-Council allowed an ap- 
 peal from the judgment of the Supreme Couit 
 of this Province to herself in her Privy ('inuKil 
 "in case such judgment, decree, order w sen- 
 tence shall involve directly or indirectly any 
 claim, demand or question to or respecting 
 property in any civil right amounting to or of 
 the value of t'.'lOO sterling (i!37") currency)." 
 
 The sum to recover which the action was 
 brought was l'.')40 currency, but adding interest 
 on this amount from tiie date of the writ until 
 judgment, togetiier with tiie costs of the sia- 
 cessful party, increased the sum to over £'M) 
 sterling. 
 
 Leave to appeal was granted, the resjionilenl 
 being at liberty to raise any (juestioiis with 
 regard to the appealable amount before the I'rivy 
 Council. 
 Popi. v. The I'ictOH Steamboat Co., 2 01il., I7(i. 
 
 2. Appealable amount— Costs cannot be 
 
 added to make up appealable amount— 
 
 Si-mhit, costs in a cause cannot be adileil to tia' 
 amount claimed for the purpose of bringinj; it 
 up to the appealable amount. 
 
 Burnxet al. v. lilckardx, 1 N. S. 1).,M 
 
U-21 PRIZE OF WAR. 1122 
 
 3. Ordering Judgment — In a case in natidn, Imt us the property of niaiikiud at large, 
 whitli the faut.s and law appear to lie entirely an.l as lieloiiging to tlio eoininoii interest of the 
 on.' way, their Lordships will make tlie pre- whole species. Restitution of the i)roperty, 
 sumption.'^ wiiieh siiould properly lie made l>y a decreed. 
 
 jniy, witiioiit sending tiie ca.se down for a new j The Marquis <l, Somu-uihs, .,',i,/ Cas, , 
 
 '''•''■ .'Stewart 4S'' 
 
 J)e.H/iar,-c, ,,/ a/, y. Sh, y, -JS L. T., .".(fJ ; ' 
 
 .,...,»«.,».« Ji' u . K., JT.j. 4. Blockadc- 
 
 V . EJECTMEXT, ». s., SHIPPIXC 
 
 4. The I'riv) touncll will exercise its 5. taptors Misconduct of - Belligerent 
 
 ,h..,.tMm n, deeding a ease on its merits, bringing prize into neutral port-Ti>e rid.t of 
 
 It p e.u nigs. conduct in regard to the captured vessel, lie 
 
 Mch'u< V. Mrhay, not r, iM Mo.;^ ^^_ ,,l,.,l,y i,„t, a,„i the vessel therel.y forfeited to 
 '•'• '^•' ■> ' • ^ •) •^-< ; , the Crown ./»*v roronw . 
 
 •J!l L. I., ;),)'2. ; Alleged lielligerents who have violated Her 
 . „, „ , .Majesty'.^ jiioclanialion of neutrality ; grossly, 
 
 .1. The Privy Council heard an appeal wilfully and stealthily violated her territory- 
 
 ' ' "" '■'■'''•''• "f ^'"-' •^"I'''i'"it. Court of Nova ! resisting witii force her ottieers .seeking to exe' 
 
 .Vntia, setting aside pleas ami allowed the appeal eute the process of her Magistrates, are guilty 
 (iiiiilitionally. ,,f ^^^^^^ ml.sconduct as rcmlers any prize taken 
 
 (J/..V.V, .,,y V. Walla... •_' Old., ;»J), , ,,y t,,,,„, ,,.,„ jf -^ ,,.^,,,^. ,,^„.f^,,, ^.^^^ ^^ 
 
 II a/Inn V. JfrS>n. ,„;,, h. R., 2 V. C., 1S(.. to forfeiture to the (Vown. 
 
 I'di; MST OF CA.SHS Al'l'KALKl) TO THK "^''' ^ '""'' ^*''" ^^'"'1^^'''"'" "<' I'lca on l.elialf of 
 ritlVV C'OUNCIL-.SV, AI'l'KXDlX. persons .so acting. 
 
 The act of a belligerent in l)ringing an umon- 
 
 dtniHul prize into a neutral port, to avoid lecap- 
 
 ture, is an ofl'ence so grave against the neutral 
 state that it i/iso Jar/o suKjecls tlie prize to for- 
 PRIZE OF WAR. feiture. 
 
 Till (Jill III V. 7'li< Clu^iipiriLi mill Cxi'i/i), 
 
 1. A claimant cannot recover property i oid., Tjt;. 
 
 tiiiijloycil in a course of trade whicli is against 
 
 lhehnvs,,f humanity and in deliance of the laws «. Capture ~ LO.SS Of VCSSCl Capturcd- 
 
 '.tiiisown country. Claim for dama-i-s upon loss of vessel Ky shii)- 
 
 Till S.-ini, .Stewart, •.',S4. ,,,,,,,^ ,^f,,., ^.,,,,t,„.^,_ ,ej,,,tc.d. there Im'iol' no 
 
 misconduct on tlie jiart of the captors, 
 
 •>. Ambassador's ijoods Captured articles 77,, /.„,,/o, .Stewart, .-,.-,( ;. 
 
 lii.liiii!.'iim to iiii Amlia.s.sador wiiicii had lieeii 
 
 Am>^d in the name of an enemy's c.m.signee ;. Certlllcates Of Origin -French CCrtlfl- 
 
 i.>loivd. \s nere ca,.tors refused to consent to ,.,,^,, „f ....j^,;,, ,,^,,,, y..^,,,,,, ^,j ....nliscation. 
 R.tit«tu,n the Court .hrecle.l an appeal to l.e ,,rdcr in Council llth Xovemher, ls.,7, not 
 HitHcd on lichalf „t the claimant, and intimated ,,.,„.,i,,.i i,,. „,,u.,. „f April •."(i.h. Iso-). 
 ti.:.t. upon an application, it would deliver the , " yy,, .,^,„ ,.- .^,^,^ ,>,,^,„.,,,.,_ ._,^,, 
 
 liHipeity to ids agent upon hail. ! 
 
 Tin .l//n)/('/r(, .Stewart, 44'_'. I!y the sul).se(|uent ilecisit.ns in the Court of 
 
 Aiijieals, in this and some other cases, 
 
 i' Arts and sciences protected— Petition JI'/'I, that tiie order relating to certilicates of 
 pMyiiif.' tiiat certain paintings and prints, \vhich origin was repealed liy the order of -JOth Ajjril, 
 "ere captured on hoard the American vessel and therefore in all sulise.juent eases, though 
 wlkd the ".Mariiuis de Somerueles," might he , certilicates of origin were fre.jUently fomnl, they 
 iWureil I,, the petitioner on behalf of a .scientiHc , were not eimsidered as affording gnmnd for 
 Wiihlislnnent ut I'hiladelplii.i | con<lemuation. Stewart, '2!)2, ;/. 
 
 Il^lil, that the arts and suiences are admitted, | 
 
 ""i"»«st all civilized nations, as forming an 8. Concealment Of enemy's interest— 
 
 M'.iptinn to the .severe rights of warfare, and as Enemy's interest concealed, Shi)) ami cargo 
 
 'iititlcd to favor ami protection. They are eon- ! condemned. Th> !'(«»., Stewart, ]'2 ; 
 
 ^"'•■rcd not as the i.eeulium of this or of that j Tin. Hn-kimu; Stewart, 17. 
 30 
 
1123 
 
 PRIZE OF WAR. 
 
 1124 
 
 Theciweof 7Vi, I'i;m(s was uifirniuil on iipiaul 13, Contraband -Iroii, uiulcr tlic Swcdhh 
 
 to the L<inls of Appfiil, iiiid tlio upiiuUuiUs cdii- trealy, not toiitial.iinil, llioiigh ik'stiiud to a 
 (leiiiiiutl ill costs, Uh FiliiHUi-ii, ISc',. iwt of imval fiiuiiniiciit. 
 
 The case <if Th(. lln-l.iiinr was aiiiiialeil, Imt i Tlit Ai'in, Stewart, .'.Til. 
 
 tlie appellants did not pioceedand tlieiiiliiliiti -n 
 
 was relaxed, January icih, iSoS. 14. Contraband Of War Ship and fiirso 
 
 njHiii return voyaj,'e condenmeil wliere iniiti.i- 
 
 tt. Concealment of papers -A letter was i.and goods wiucii comiiosed a jyart of iiie nu. 
 
 discovered written in synipatlietie ink on boaril ward cargo were coneeulcd liy false i)a])ers, and 
 a vessel liotind from Halliinore to Hourdeaux tlie relnrn cargo was ol)taine<l from tlie pnnwl^ 
 witii a cargo of sngar and otiier articles. <if tlicontwanl cargo. The ontward and rtUini 
 
 On aitplying the proper coinposiition the let- voyages were one unliroken transaction in wlinh 
 ters liecanie legilile, and it was fonnd to he the owners of the vessel, and of the wliole ciign, 
 tiierein stated, that a paper was concealed in were eiinally imidicaled hy the charter party, 
 the liead of a sugar cask. No. 'M'u in which the j Tli< Aramiiitha, .Stewart, 47. 
 
 real state of the property would he found. The 
 
 paper was fonnd and sliowed that the cargo did jj^ Contraband -Ship and rctum carjJO 
 II. >t belong to the claimant, hut to a Frenchnmn : ^.,„i,ii.,„„i.(l, ship having on <mlwaid voyage 
 it stated various fran<lH in accounts current, and ^.^,.,.i^.ll contraband to a l''rencli colony iiiiiki' 
 as to the proceeds) of cargoes, ivnd it appeared fuj^y papers. 
 
 that the jjioceeds of one cargo were to be used i Tht Smmis, .Stewart, 77. 
 
 as the colorable funds for several retnrn cargoes. I 
 
 It also sjK.ke of the vigilance of the abominable jg^ Contraband — Unmanufactured cop- 
 Court of Halifax, per going to a port of naval eciuipincnt, contia- 
 
 Cargo condemned. The siiip, with freight and l,iin,l, condemned, but sliip restored with t(i>t,s 
 master's adventure, lestored, tlie master not ;i,„i expenses to owner, as being a new tiiioli'ii. 
 appearing privy to the concealment, and the Tht Eu/ihiinia, StiiWiul, M.i; 
 
 vessel being only on general freight and without j 'j'hi: Jtriimkm, Id., .■)7n. 
 
 ''''" ''"'"^' ^'''^''^' ^^- ' n. Contraband-Vessel carrying out any 
 
 Affirmed on appeal, ^Uth Fthruunj, 1S09. contraband articles npoi. her outwar.l voyage 
 
 is subject to confiscation on her return voyage. 
 Till. Uiiiliil Stalt.x, .Stewart, llti. 
 
 10. Concealment -Slave trade-American 
 
 vessel concealed under Spanish character en- 
 gaged in slave trade condemned. 
 
 Appeal taken, after which cajjtors abamlune'l 
 their case and the sentence was reversed by niii- 
 
 Thi: Mticid, ^Stewart, 205. gent. 
 
 11. Contraband-Copper in pigs going to 
 
 a [lort of naval equipment in the enemy's coun- 
 try is contraband. 
 
 Tht Exiirtss, .Stewart, iOiJ. 
 
 12. Contraband - Colonies of enemy In 
 
 rebellion— Carrying contraband on the outward 
 voyage under false papers, condemnation of 
 vessel and return cargo. 
 
 ArmiiKj for defence against French cruisers 
 lawful. 
 
 St. Domingo, held to be a French colony in 
 1805, as nothing had been declared or done by 
 the Briti-sh (iovemment that could authorize a 
 British tribunal to consider this island gener- 
 ally, or parts of it (notwithstanding a power 
 hostile to France had established itself within 
 it) as being other than still a colony, or parts 
 of a colony, of France. 
 
 The Happy Couple, Stewart, 65. 
 
 Affirmed on appeal, J7th March, ISOS. 
 
 18. Contract with enemy- Commanders 
 
 may enter into contracts with subjects of the 
 
 enemy, for the sujjply of their forces, and grant 
 
 passports to protect them in such traiisacti"iis. 
 
 The Tivo Brothers, .Stewart, .wl. 
 
 19. Declaration of war by the United 
 
 States— EflTect of seizure of vessel for infraction 
 
 t of customs law before declaration — Cannot 
 
 I after be detained as enemy's property-Tlie 
 
 I declaration of war by the United States diil not 
 
 [ place the two countries in a complete state of 
 
 war till the order for reprisals by the Britisli 
 
 (Tovernnient. Order for reprisals, 13th October, 
 
 IHl'i. An American vessel, together with her 
 
 cargo, was seized in the port of Halifax by the 
 
 collector of customs uiwn the 7th June, 18l2,l"r 
 
 an importation into Nova .Scotia contrary to law. 
 
 On the 20th June, 1812, the government of the 
 
 United States declared war against (!ieat 
 
 Britain. The owners of the ship and cargo 
 
112.-) 
 
 PRIZE OF WAR. 
 
 U-2(J 
 
 fliiiniiMl tlii'ir rcspci'tivo j)i<i|ii rtii's. It was 
 I'lmtfiiilfil lit tin- lu'iiriiij:, wliicli tdnk pliut; nu 
 the ;{|>-l .Inly, ISI'J, tliiU tlif iliiiiiiiiiits, who 
 Hfic AiiK'riciiii citi/i'iis, wcix', liy tlie ('.• jlurii- 
 lidii of will', lic't'diiii' fiu'init't", ami lliu sliiji and 
 LiUf.'ii I'lieiiiy's iniipi'ity ; tliat, tlieiffnie, tlit- I 
 pull its were ilis(|ualitieil from ii))i)eariiij; in a 
 British cdint of jiistiie, ami that the eollector was 
 lutitli'd to retain the ship ami earjio, of whieii 
 ho hud the Ixniii n'l/i possession, I>y the title of 
 occiipaney, as lielonj^ing to an alien enemy. ! 
 
 Hdil, that until the King, either liy express I 
 (krlaration, or liy some other iiiaiiifestation of: 
 lii>j iiiistile intentions, has [daeed his dominion 
 ill a state of warfare, the state of nnitnal and 
 ruii|iidi'al hostilities hetween any eountry and , 
 tlu! Jiritish doiiiiiiions oaniiot legally eom- 
 iiR'iite. When such manifesiatioii is made, and 
 iidt liefore, the complete legal state of iiostilities 
 exists with all its eoiiseiiucnces, and since tlie 
 iiKiiMiiit a man lieconies an enemy all his ante- i 
 a'ckiit ligiits are annihilated, it must of coiiise I 
 npi'iate upon all preceding transactions. 
 
 Tlie suhjects of America cannot now (."ilst 
 .Inly, 1,SI2) lie considered as alien enemiej to 
 Lvery puriiose of law ; it cannot be said that 
 they are disiinalitied from appearing in a IJritish 
 eoiirt of justice, or that their property is liable 
 to he treated as enemy's property witlioiit a 
 sanction from tiie i'.ritish government. Tliey 
 may possibly be declared to be enemies in 
 fiitiiic but their present situation is ambiguous. 
 If tlic whole of this ease turned upon this point 
 the Court would direct that it should stand over 
 till His Majesty's instructions had been received 
 tioiii Kngland. 
 
 The slii() entered tin port and was seized ' 
 liefoic the declaration of war by the United 
 States, the subseijuent detention was involuii- 
 laiy nil the part of the owners. Therefore, if 
 the seizure prove to have been made without 
 ivasdii tiie parties wnulil be entitled to have 
 tiieir property restored in the same state in 
 which it was at the time of seizure. If the seizure 
 «as improperly made the owners by such tortious 
 possession cannot be injured in their rights. 
 
 All alien enemy can appear to claim property, 
 where tiiu property, as in this ease, is not liable 
 iis enemy's property. 
 
 The Dart, Stewart, ,S01. 
 
 20. Enemy- Colonies of, in rebellion— 
 
 ■^t. Domingo, though in possession of persons 
 wiio renounced their allegiance to France, 
 
 fftid, still a colony of France, the British 
 '•overniiient not having declared otherwise. 
 
 The Hap/nj Cou/ife, Stewart, 65. 
 
 Affirmed on appeal to the Lords of Appeal, 
 i^lh March, ISUS. 
 
 21. Enemy's properly- Wlicrc tlie pro- 
 
 perty of an enemy is under the King's protection 
 ' he may ajipear in a Court of law lo claim it. 
 
 ■/'/(- Darl, Stewart, ;«)1. 
 
 I '-''-'. Flag of truce .i KrltLsh slilp of war 
 
 sailing under a passport from the American 
 (Joveinment captured an American vessel. 
 Kestitutioii of vessel and cargo decreed, anil 
 captor condemned in damages and costs. 
 I y/d Zo'liwk, Stewart, .'{.'W. 
 
 2.'{. Fiirtlier proof A cargo totally desti- 
 tute of proof of properly, and without any 
 directions, not allowed to go to further proof. 
 I Thi Ai'firi, Stewart, 579. 
 
 '24. Furtiier proof can never be allowed 
 
 when tiiere is no ground laid for it in the original 
 ;,videiice. 
 I Till Johuuiia, Stewart, !i'2l. 
 
 1 
 
 25. Further proof — Fraud — Further 
 
 proof not allowed to a claimant who had been 
 guilty of fraud and perjury, in a recent case, 
 which seems to extend to the case in hand. 
 
 'Thi' Thnx Jiroihirs, Stewart, 99. 
 
 Attiiincd on appeal, Xori mhi r ;JOIh, ISOS. 
 
 26. Further proof not sufficient when it 
 
 did not explain the whole transaction. 
 
 Th<: Fly, Stewart, 171. 
 
 Artirnied on apjieal to the Lords of Ajipeal, 
 ISth July, 1S09. 
 
 27. Greenwich Hospital— The Provincial 
 
 Law of Xova Scotia for attaching the goods of 
 absconding debtors, no excuse to prize agents for 
 not paying unclaimed shares to fireenwich Hos- 
 pital. 
 
 Till Bi rmuda, Stewart, 'I'M. 
 
 See ABSENT OR ABSCON&IXG DEBTOK, I\ . 7. 
 
 28. Joint capture-Allegation on behalf 
 
 of claimants, joint captors, conjunct expedition 
 also actual and constructive assistance pleaded. 
 Jidil, not proved. 
 
 La Furieune, Stewart, 177. 
 
 Affirmed on appeal to the Lords of appeal, 
 9th May, 1811. 
 
 29. Joint capture — Vessels associated 
 
 for a blockade entitled to share in captures of 
 the enemy's property, though driven on shore 
 and seized there. 
 
 Tht FlUjht, Stewart, 559. 
 
1127 
 
 PRIZK OF WAR. 
 
 1128 
 
 »0. LCttCrM of marque n^alnst one COUn- ■ --patrlu.^ ..f mi Aml.ii.vsM(lur ..f tln' .■unny in a 
 try, III) luitliDiity to tiikc fnnii iiiicilliff. MiiMt iiiMitiiil numtiy tn liir* nwii < HivtMiiiiuMit, luv ii 
 lit' iiiiiiniiHsioiied liy tliu AilliiifHlty. (■.(iiiiiii.>(- j violiitioii "f a liieii> 
 KJrms friiiii the (lovi'tiior of n I'lnviiifn, vciiil. 
 
 Tin l.illli Joe, .'ml tVivi, Stuwiut, M!I4. 
 
 77(1 J/i iini, St. •Willi. Isll. 
 
 «tl. Li'ttrrs of marque and reprisal Veft- ^. 
 
 scl.s fomrni.HsiciiU'il )iy llif ( iovciiioi' of iv I'l'ov- 
 iiiff, witlioiil Wiii-iiiiits fioiii tlie Ailiiiinilly, not 
 
 ciititk'il to iniw iimlci tlif pi limiiilioii for 
 
 (liNtril>iitioii. 
 
 Th' l.iitl, J,„, 1^1 ('nil, Stcwiirt. .'IS'J. 
 
 30. LicenseH no protection to parties not 
 
 liiUllfil ()!■ il»;.>ii'iili('il ill lIuMii. Xo ii\ci'|)liii|i ill 
 favor of liiitisli siilijcL't.s. 
 
 Till Johiiiiiiii, Stowail, .VJI ; 
 Thi Ai'ili. 1,1., .-((i; 
 Tin CiiliH, III.. .VJ.V 
 
 40. Llten.se Tlie eflTect of licenses is tu 
 
 lie (ludiici'il fioiii till' iiili,'iitioii> of thf (mimiii- 
 
 32. License -A vessel taklns In a cars© ^ ,,,^,,,j ,,.,,^,y .^,.^, ,„„ „„,,^,,„i^.,i uy ,„ ,„.,i,,, f,,, 
 
 at it |)oit on liiT iftiiin f.-.m LisWon, not pro- |,i,„.i.,^,,i., nvIrmv siuli .loo.- not aiipiur m 1,, His 
 
 tfc't.'.l liy a liuen.Hu, f.irfeilL.,1 for .leviatioii from ;^,,jj,,^,y.„ i„ti.„ti,,„. 
 
 tlie voyage. ' 'I'll' 0//o/(, Stc« ,irl , 1!I7. 
 
 'I'll! I:' II II I'li , .StewiUl, .V.'S. 
 
 :W. License Excuses for deviation from /«• ^^''*^'''' The want of water is .,,, 
 
 {."'itinmte cvfils.' for a ileviiition troiu a liiwtul 
 li(-eii>ifil v.iyiiLje not proxcii. , ■ . . . . , i i 
 
 ■ - ' ,„, ,, ,, . ..,_ v.iViiLTi', wlifH' it inli'lit liiive liei'ii iiriv.nt.il hv 
 
 J In /.'.//., .Stewart, .).<,. • . •" " • i., , 
 
 oiiliiiiiiy priiiU'iKi', or the inastel niiglit have (ili 
 
 :t4. License granted by an Ambassador 
 
 loan eiii'iiiy to tra.le willi the Krili.xli iloiiiiii- i 
 
 ion.s, fur the .'iupiilv <if troops, is voi.l. , , . ■ ^ .. i 
 
 Till sniii, A,iii, .Stewart, .((IT. ^'-J- ''It'enses to trade between two ports 
 
 ',♦' the enemy Void ( laimaiit.s e\|i.UM- al- 
 lowe.l iiiuler iiartieiilaiU fax .iralili- .■iniiiiislaiice.s 
 
 :Lj. License sranted under the order in ,, ,|„, ,..^^^, 
 
 Couii.il, Sth April, l.spj, aulliori/inj,' eertaiii 
 exports and iin])orts froiii Halifax to tlie I'liiteil 
 States, not vali.l after tli.. war .■oiiiniei,.-..,! witii ^^^ ^^^^^^^^ _ ^^^ ^^,^^^ ^^^ j^,_ „^,,„,„„„ 
 
 laiiu.l a stip|)ly \\itliout Muli .U'viatioii. 
 
 Tin I'ilnrliil, Stewart, .'A'i. 
 
 '/'//. K.iliiilil'niii. Stcuall, 4SS. 
 
 the I'niteil States, nor reiiilereil vali.l by the new 
 
 oilier of the {."{'h t)(tolier, ISll', wiiieii diieeted 
 
 licenses to lie j^raiiteil not w ilhstaii.liiig stieh war. 
 
 Ijeeiises fr.iiii the (ioveriior of N'ova .Seolia to 
 
 the eiieiny voi.l. 
 
 mil, .Stewart, 44(i. 
 
 Tin !■:• 
 
 iHi.ler onlers ill ( 'ouiieil, I'.llli Nuveiiilnr. iNHi. 
 
 the license ealiliot !»■ di-spensed with. Ki|iiiiaMf 
 
 .•iiviiinstaines .■aiinot alone for the want d a 
 
 license. 
 
 Tin L'/i/ili, Stewart, \<*i. 
 
 .. . ., ... . ...#.„ 44. Lic«nse Where the license liart l)f en 
 
 :i«. License -It Is not necessary that the ,_^__,^_^,,,^ ,___,,^,,. ,^ „ .^,,^,^^, „|,„„ |„.,„„ .„ „,„ ,,,,, 
 
 IK'is.iii who ohtaiiie.l the lieeii.se to e.xport from , 
 
 .. ■ • 1 IT •. 1 ^.. . I ill the ve.s.sel was restore. I. 
 
 (.ivat Ihitaili to the United .States .should he | ,^,^^_ /.y, -/,,•/./,. I »;/i,>7»s, St.wait, Ml. 
 
 owner or actual la.ler, if Ik^ ha.l the inanageiiient | 
 an.l .lirection of the ves.sel with respect toiler' ^. j|j,rshal - taUKOt giVC up pHZf jOT- 
 
 eniph.ynieiit. ,,crty without an onler from the Coin t. 
 
 //(. Alin.i'i'l, Stewart, .{.».). • •' ,, ,. ,, . . ^, , .,,- 
 
 .S,(oo/,'«- /'i^/.'0»s Slewait. I-.. 
 
 37. Licenses $;ranted by Mr. Allan, the , . 
 
 British Consul in the United States, /„/,/, voi.l. 46. Marshal -Entitled to seven and six- 
 
 Tin ill iraril, Stewart, 470. l'«l>i-i-' '^ il'iy f'"' tl'^' eiistody ot vessels. 
 
 Tin- Hi rum, Stevait. .i>l 
 In the case of Tin Ho/n , the High Court of 
 Admiralty conHnnod the validity of Mr. Allan's ; ^^^ Possession Of Capturcd gOOds -I|t011 
 licenses 19/li Fihrnar,,, ISI-l, a decision which ^„„„„i^^i^,„,^ „f j^,,i,.,,j, it ,en,aiiis with lh> 
 was not known at Halifax when the case of Tin , ^.^^^^^.^ ^^^ ^^^^^^^.^^^^ ^,,^ j,,,^^.^. j^,. ^t,,,,;,,, „,, j,,„„K 
 Reward was decided. | ,j,,^^. ^^^^^^^^ ,,f ^,,^, ^,^^|,t^,.,, ^„j claimants are not 
 
 entitled to have prize gr.ods deposited in tli'ir 
 
 38. License - Neither carrying common ^^^^.,| ,„,i^ .^^ 8toie.s. 
 
 letters, extracts from newspapers, or the de- /,« Mcrad, Stewart, -1!' 
 
ll'll 
 
 PRIZE OF WAR. 
 
 ll;JO 
 
 4K. I'rUc Act Thr n>Kulnlion!t in the 
 
 I'ri/c Act t'Xtfiici cxinixily I" tlie ('"liPiiicH. 
 
 ■/7(> III nniiiUt, StfWiirt, -.SI, 
 
 lf». I'rlzc Court Instanrc Court Vlee- 
 
 Adminilty Court Respective jurisdictions - 
 
 .\> .1 i'li/c t'liuit, no Cniiit (if Acliiiiriilty hiiH 
 juii^'liitiiiii in rc\oniif I'a.ifs. As an Instiincc 
 (unit, wiiiili is tlu' ])rii|icr triliniiiil fm' lauscs 
 (pf that iiatuii', A ( 'cmrt uf VictvAiliniiiilty lias im 
 aiitlii'iity til tai<c cuj^nizani'c (if nfl't'iut's I'lun- 
 iiiititil imt within tin' limits of its Imal jnris- 
 iliitiiiii. ('rill' jniisiliciinn uf I lie Instani'(.'( 'dint 
 li,i< ^iiii'c ln't-'ii I'Nti'iiilcil liy Act (if I'ailiaini'nt. I 
 V'/i' Xio 'if'i Si ii(ir'( l)il C'triiii II, 
 
 .•^tcwail, s;t. 
 
 'lO. Prizes (Ivlained u|)oii tlit> declaration 
 
 (if war liy tile I'niti'il Status, anil innli'l' tlif 
 Oiiliiin Ciinncil, .'ilst .Inly, ISl'J, ami nltiinati'ly 
 npiuli iiinid ti) the Kili^K', ,/'»*■' 'o/n/o' , as haviiii; 
 liii'ii taken ln'fiili' the ih'iUm' fm' :t|)risals, cdnM 
 iiiit lie siiM Of liailcil, witlidiit an atithdiiiy frimi 
 tlif l\iii_', iinli'ss in a |iiiislialilf >latf. 
 
 MraMnt's taken foi' theif preseiv at inn. 
 /'f '.V/i./( (ii'Sir .liiliii Wiirr< ii ii '(/,, ."<ii'Wait, .'{•.'T. 
 
 .)l. i'ri/,e rorroitcd Tor non-compliance 
 
 with His Majesty's instructions Tiiis \vasan 
 ii]i|iliiatidn fur edinlcnniatidn uf a vessel whieli 
 liinl lieiii seized, the a)i|ilieatidn lieiiig niaile nut 
 "II liehalf <if llie eajitdr, Imt uf a persiin tn 
 «iii.iii he had sdlil it. N'one uf His Majesty's 
 iii^lriictidii relatini; tn ^iriieoedings uiinn pii/c 
 hil'l lieeii dliserved. 
 
 //•/'/, that as lietween (iieat ISlitain and 
 iither eiiuntiies, whethef enemies nr neiitial 
 piiwris, Courts of Adniifulty are estalilislied 
 iiiiiler the general c'onventiiinal law of nations, 
 iiiiil of parlieiilai' treaties, and arc liijiiml to 
 i-'Xfnite the same impartiality as if tliey were 
 iiMii|iosed of persons entiicly independent and 
 iiiKniiiKited witii either party, and wiie sitiia- 
 ti'il ill an indiU'erent eonnti'v. Thotigh liierigiit 
 til ]iii/.e is given liy His Majesty in his pro- 
 '•IcUiiiitioii to tlie ea))tors, yet as that iiroclania- 
 tii'ii is always followed liy Aets of I'ailiaineiit, 
 iiiiil iiistriK'tions proceeding ffoni the same 
 'iiitliHiity, it is held that the (lireelions fur pro- 
 LWiliii^ ill ease nf j>ri/.e are a sort of ednilitioiis 
 iiiiiU'Xed to the original grant, and, tlieiefoi'e 
 llliU the iiiiii-oliservaiice of His Majesty's diree- 
 l'"iH, and other niiseondtict, anionnt to a for- 
 fi'itiiiv of the general right to prize. Vessel 
 >'"iii|(iiiiied, not for the nst of the captor or 
 piiiiiiaser, Imt to His Majesty alisolutely, not as 
 ii 'Imit and peri|nisite of Admiralty, lint jurr 
 "iirmii, as a portion of that original rigiit to all 
 
 captnri'N, which, in this case, from a lireach of 
 ! the conditions of the grant, have not lieeii 
 ] divested out of him. 
 I Aft Hiiiii ill's Aiiiii", .Stewart, !l. 
 
 ] 
 
 'ii. I'rizc forreiled for miNConduet - 
 
 i Taking aw.iy a prize from the custody of the 
 I Marshal. 
 
 I I'rize forfeited for misconduct of the captors 
 { in so doing, 
 
 '/'/(. f 'o<M(</-, Stewart, ,"i I. '<. 
 
 53. I'rize money - Attuclinient or, in 
 
 ; hands of prize agent- 
 s' ABSENT OK ABSl'ONUINU DKBTOK, 
 
 IV. 7. 
 
 51. I'rize i{iglit to A prize, before con- 
 demnation, is ,1 trust, and cannot lie alienated, 
 j withont the consent of all parties, or unless 
 perishalile. 
 
 The Kinii has no vcstcdriglit tillcondemuation. 
 
 'i'lic King's otlicers and lioards of service, 
 
 have no right to purchase w here other persons 
 
 have not ; and have no pre-emption where 
 
 sales can lie made. 
 
 Cases of pnlilic necessity for defence of the 
 ' ooMntiy form an exception. 
 
 '/'/(. Ciir'iir, Stewart, .'il'J. 
 
 an. Prizes tnlten l)erore tiic order for 
 
 reprisals, l.'ith Octolier, InI'J, not given to the 
 , ca|)tors liy the order for dist lilmtion. 
 
 I Til' M'l/rn'iii, Stewart, 'M'.l 
 
 I 
 I 
 
 50. Prizes taiien nnder commissions I'roni 
 
 the ( lovernor of a I'lovincc, without a warrant 
 from the Admiralty, not given to the eaptois 
 liy the proclamation for distrilmtion. 
 
 '/'/(' /.///A .All, Is/ Cn-i , Stewart, .'«•_'. 
 
 51. Privateers No private vessel can 
 
 cruise against the enemy Imt under a lawftil 
 commission. The right of granting such com- 
 niission is the right only of the Sovereign, or of 
 those to whom lie has deputed it. 
 
 '/'/(. Ciirii ir, Stewart, 'M-l. 
 
 5H. Probable cause Captors entitled to 
 
 costs where they were held justitied in liriuging 
 in the vessel for examinatidu. 
 
 Thi- Sloi-khnlm, .Stewart, .'{7i). 
 
 59. Pr<»bable cause - Captured vessel 
 
 released — Costs and damages — Captors not 
 lialile to costs and damages for tiring at a vessel 
 which had shown an hostile ajipearance of 
 resistance. 
 
 Till Frii nil"" Ailn ii/un, .Stewart, 07. 
 
1131 
 
 PIIOBATE coruT. Iin2 
 
 llicilf lpclictiri:il 111 llilll^<(•lf, it jx lllcilf (•'insi.stnit 
 
 60. I'nibable caiiHe ierllllralo of pro 
 
 Idililf fiuiHi' fi>r tin |ir.wciit(iiM .Hci/iii^' It Mliip <>v willi the pDlJcy of wiir ami tlic Ipcii.'lit nf il 
 
 cargo iiiUMt lie giiintfil ii|i<in tlif facln iiii|iiMriiig romitiy li> llt■^.1ll>y it. 
 uiMin the trial nf tin? ciuisc, ami m't uiimi Mil) 
 8CM|iii'iit ivtJiilavits. 
 
 It i« nut lu'ci'ssiiiy ti) prove llic fact-* u liitii ^ _. 
 
 CTcatcil a ])Volial>lc laiisi' to have licfii UmiWM at lalti-r nwoiv that lie wii.s not aKle to .-^lure 
 
 the liiiir of Mci/uic. liny of his Huilois to iiiiiii the ini/.f, \vitliniit 
 
 Wlieif a vi'ttKt'l wiiich hml waili'il out of out! 
 f the lilockadi'cl poitM nmc raptuicd l>y a vom'I 
 (!ii>;ai,'fil in the Mockacle, ami the captain of the 
 
 l'"alsL papi'i't, pi'olmlilc lalisi'. 
 
 Til' Fiiiil', Stcwait, ll'J 
 
 wcakfuinm hi« citw so imuh an to injinr tiic 
 KiTvice of his ve.HMfl, ami lieiiij;, theiffori;, iiiiiltr 
 I he lifi'i'ssity of aliamloniliji llif prize, he arccplid 
 
 61. Proceeds of prlste .IiirlMllHlon of - -•" '■' ;'"";•>■ "' '''"•7;"' ^''7""' "^'^ '""■ 
 
 .1.....11...1 .1 l'i\l tltl tll'IVK til till' I'Mlirill'M. 
 
 ileiiilieil a lawful pli/.e to the ea)itof«. 
 
 'J'lii rniiin/ mill Tlu /'lainjll lli'ij, 
 
 Stewart, ,".',♦. 
 
 m. Ke-ra|itiire ilijrlit of owners A(oiirt 
 
 Court — The Court of Ailiiiiialty has the power, 
 
 vhieh il has repeateilly exerti.seil, of i>.-*iiiiig 
 
 n\onitionM to ixMjiiiii' ptMMons toliriiigin .so iiiueh 
 
 <if the proceeil.H of prize as remain in their 
 
 Immls, as havini; the posse^^ion of the pioeeeils . 
 
 , , . ,1, , ,, 1,.,..,. 1 ,, ,,1, <if prize in a neutral eountry has 110 authority tn 
 
 ))V wiiatever lueims they nia_\ lia\e been on- 'I • 
 
 , , !■ II . .t.. lU'liver a vessel lllMHi oail to per.sons, nut tlie 
 
 lained. Captois have not a (hsiiosahie property 'K-i'^i^' axt.... ..| . i ' 
 
 , ., 1 f.i . ., 1 reDrest'Utatives of t he o\\ tiers ; anil the rij-'lit in 
 
 ill thiiiL's eaptureil, or the proeeeils ottheni, lUiil it.pi«-»i-'o""» ^ • ,, ,, 
 
 agetits have .... right to selll.efo.e li.ial ailjuili- <1>^' """^■'■^ "I""' n-..aptu.v is .,ot defeated hy 
 
 cation. Parties can lU.ly acini.e possessio.i of -'"'1' 'Ud.ve.y. ^^^^^ ////,/„,/.. .Stewart, 4(1. 
 
 oaplured ship a.id cargo npo.i hail oi' a.s pur- 
 
 chase... If they aci,ni.e as pu„ha.se.« they ^, ^^ ^^^^ j,^^,^,^^, ^^ . ^^^^ ^.^,„^ 
 
 a. e aii.swe.il lie fo.' the im.'ciase money. As to , en . ;i ., 
 
 uiL uii.s«. 1,1 I .- upon the ,'ross amount of all .iio.iey pn.l iiil.p 
 
 Iiossession of the p.oceeds, they aie not entitled ' . 
 
 * . , • the .eglslrv. 
 
 to it, either as part.es, agents or |iu.vliiiseis, .n '^ 
 
 any case whatever, hut are hound to pay them 
 
 into the registry. 
 
 TIk /Aiilmo; Stewart, P-'S. 
 
 'I'll' //ninii. Stewart, ."iS.'i. 
 
 62. ProceedliiRs resportinv: agents ap- 
 pointed liy the (.'row. I to receive Anierican 
 
 property. 
 
 Siiiiol.'" /'i'/V/o/;s Stewart, 4'J7. 
 
 «:{. Pure liasc from enemy Nationality of 
 
 vessel— Ve.s.'^el and cargo ])iiiciia.sed from the 
 enemy in the name of a neutral, li.it leally foi- a 
 r.ritish subject, held lialile to co..tiscatio.i. 
 
 It is estiililished as an inviolalile rule that any 
 vessel to he conside.ed as the property of the 
 country w hose Hag it carries, must have o.. hoard 
 tlie pape.'s a.id passiiorts in due and pe.fect 
 form, and that every vessel wliioh shall not oh- 
 serve this .'ule shall hise all right of inolection. 
 Tin liir^fara, Stewart, 'A\ . 
 
 64. Kansom Act, 22 Geo. 3, c. 25, and 
 
 Pi'izo Acts do not exte.id to .■epu.chase.s of 
 
 ve.«sel.s not seized as ]irize. They extend only 
 
 to vessels captu.ed in war, not to those seized 
 
 for other causes. 
 
 Thi Pdh-iot, Stewart, .S.'iO. 
 
 65. Kansom when JustiHable under Prize 
 
 Act— When a civptor is unable to secu.-e ii prize 
 and send it into port, though to ransom may he 
 
 PKOB.iTE lOlHT. 
 
 1. Accounts Power of Judge to rc-open 
 
 — Theactingexecutorof U. H. II. and tlic ^aliniJ! 
 executor of K. A. r.., his wife (II. H. 1!.. iiaviug 
 been executoi' of ('.), made ii memo, as fulliiws: 
 — "It is mutually agreed between ,1. W., ilif 
 "acting executor of K. H. 1'.., and niysilt'. tin 
 "acting executor of Mis. K. H. Ii., tlut the 
 "settlement made by him on the eighteenth ihiy 
 "of December hist, at the rrobate Coiirt iU 
 " Annaliolis, to abide the dec.ee the., iiiiulo, lij 
 "his paying over to me one hundred iliiUais. 
 "part of the |)erceiitag" or commission allciweil 
 " in said settlement, which s.n.. 1 have this day 
 received." Sgd. "d. ( '. T." 
 
 ,1. C. T., acting executor of K. A. H., had al- 
 ways objected to the settlement .efeiicil tn m 
 the memo. 
 
 Hilil, that the memo, did not estop the •Imli.'i' 
 of Probate f.-om ope.ii.ig the accou.its. 
 
 In >•'■ l-Ui<il> of lUiih, -1 H. ct ('., ■*(«. 
 i 
 
 2. Adjnlnlstratlon, letters of How iU- 
 
 tacked— To an action of replevin brought hv 
 plaintiffs, as administratois and administ.atnx 
 of .1. K., defendant pleaded, anioiig other pli-a*. 
 a jilea that the letters of adininistratimi were 
 
li:!.*} PROBATE COURT. 1134 
 
 null iiiiil vipjcl, ;\M liiiviiig lici'ii graiitt.>(l liy tlip st.itfiiii'iit lilcd in tlic ii'i;iniry of tlic i'ri)l)iitu 
 
 .lii.l.'i' of I'niliiitf fill' tlic Ciiiiiity iif ('iik'lu'Htcr, ('niiit. 
 
 vliiiias .1. K., n^ ilrf..|l.|iilil iilli'Kt'il, lit llictiiiii- I" '■' /-'''"'' i>/ Hoo/', K. K. I).. lli'J. 
 
 lit III-* ili'iith liiul IiIh ilniiiiril ill tlie (..'oiiiity of 
 
 ciiiiiiiriiiiiiii. A v.Tiiiit iiiiviii,!,' in'.^ii foiiiiii for fi. Appoal from In nn appeal from a 
 
 |iliillll Ill's, ili'ffllillUII luovcil to .set it ll>iili' oil tllf ilcilff of llii' Court of I'lolilltf, till' SilpH'llli- 
 
 u'loiiiiil tliiit tlio JHsiit' iiiiM'il lij till' jiluii iiliovL- Coiiit limy allow an iiiiuiiiliiu'iit, inMiiij; ii new 
 
 ii'iitcil wuH not Huliiiiitti'il to tliL' jury, yroiinil of uppfal, 
 
 //«/'/, tliivt tilt! JHHiie WHS iiir^|ielly witliliulil. In k Ktlnli i;/' /,V(/.-^.j(, "J 'riioiii., ,*?, 
 
 Till' .IiiiIl'I' wIiii trifil the ciisf wiis not at liliiTty 
 
 l..,„l,„it any rviil..,,... to in.|H.uuli the valiility j^ ^,,„p„, fp„,„ j,.,. jy^^g „f PfObale 
 
 i,f tl,.. IfttiTH ot ailnuniMiatnm. If lU^fciiiliiiil ,,,,f„^^^^., ,„ ^,,,,„„ ,^„ ,,,,,,,.,^, ,•,.,„„ i,;., ,i,,,,|,i„„, „„ 
 
 Hi>li.M to attack till- IfttciH of ailinini.itiation ,|„, g,,„„„i ,|,,,i tli,. I.oinl, altlimi^'li in the fuiin 
 
 hi- i-miiiT c.iir.s,. was l.y apiiral within the j^,;,.^.,, j,, ,i,e Statute, ili.l not state what ■.•auso 
 
 tiiiir prescriheil in tiie Statute. ^,.,,^ peinliiig. The appeal wa» then graiiteil l.y 
 
 A'mt ,1 „l. V. MrL,lh„i, W X. S. 1).. -,(.■_'. ,, _,,„,^,^, „f j,,^. s,i))ivi>ie Coiiit at C'lmiiilieis. 
 
 Ill III, that the luiiiil was in the propei' form. 
 
 ;{. Adniliilstradon Kriiiitod to a debtor of /» " A'"/' Av^r, , j R. \- c, isj; 
 
 (li-ct'aHed Associating husband of next of kin 1 ('. I-. T. , (iti.'l. 
 
 I'Ih' .liiilyi' of I'loliiiti' j.'1-aiiteil ailiiiinistratioii 
 .if Ihe ileeeaseil to two sisters of tleeea.seil ami 8. COStH III PrObatC COIirl -I'pOII prOOl' Of 
 
 I'll" "^hearer, the liusliaml of one of the sisters. testator's will, in .solemn form, the .Iinlge of 
 
 I III petition of II lirother of ileeeaseil the letters I'roliate deureeil that it hail heen duly exeeiited 
 
 iif hhninistratioii were I'liin/elleil. Anionn the and he mnde the eosts payable o'lt of the estate. 
 
 ;'niiiiiils set forth in the petition of the lirother, On a|)|H'al, the ('oiirt held that the will had been 
 
 wliirh re.siilteil in the eaiirellation, it w as alle;.'eil .shown to have been duly e'veeiited, and thai the 
 
 tliiil the jietit inner had not been lited, and that due exeeiitioii had lieeii proved of a codicil 
 
 Slii'iuer was indelited to deceased on iiiortgaj,'es w liich operated as a reiiiililication of the will. 
 
 iiml otherwise. Other grounds were set forth The appeal was therefore dismissed, but without 
 
 iipnii which no evidence was adduced. eost.s. 
 //'/(/, that it wa.s not necessary to cite the W'eatherlie, .)., (//sm //'''//;/, as to the i|',iestioii 
 
 liftiliiiiier when the administialinn was uiiiuted uf co.its, considered that the appeal .should be 
 
 to tlie next of kin (of whom the two sisters were dismissed with costs. 
 
 II niajority), and that there was nothing to pre- lu n Ktlnti of llorh , .'! H. X' ('. , ."i.")(». 
 
 Vint the •Judge of Probate in his discretion from 
 
 :i|ilioimi.ig a mortgage debtor of decea.sed and ,,^ (.„j.,j. „„ cOlltOStatlOII Of Will, directed 
 
 11.1 iibjection to a.ssociating the husband of one ^^ ,,e j,j^ij q^^ qj- g.state. 
 
 "f till' next of kill in the iidmiiiistration at their j^ ^., I'.^tttli ai' /'im ,S 11 .V (' .Sn7. 
 
 ll'l|lU'Sl. 
 
 '."'"■»•', whether the .liidge can revoke letters Costs of appeal from Probate C.mrt given to 
 
 "f ihliiiinislration luioe granted for any reason ^,,y j,,^,.jy j„„,^.^,.,.,f,|i j,, that Court, exce|.ting 
 
 "thci than tho.se nieiitioncd in the Statute. ,.,,^(^ um'iecessarily incurred. 
 
 1,1 n Ilatihi, .-. R. \ <;.. .ST.-.. /„ ^., !.•,,„,, o/Shur-^iHi. .-i R. >*e C., .T.T. 
 
 4. Appeal Itom - Costs where appellant »«• ^"s'** ""'«'• »"»"'"» »P«'«"l f»"' » 
 
 partly suece.saful-Appeal from the Judge of Judge of Probate in a matter relating to, set 
 
 1'iol.iU,. havinu been dismissed, costs were with- a.sido- -Probate Act, 5th R. S., c. 100, .^. 64- 
 
 lit'1.1 liecau.se ^he .Judge had improperly con- i *'^» '•^' /'«'•'<' <"''ler was made by a Ju.lge at 
 
 'Icniiu'il the party who appealed in costs us to t'li'i'"''^'-''' allowing an appeal from the decision 
 
 tlK" testation l".elow. In r, Simp^ov.WK. kV., "*' '^'''"'^'^' "^ '''"'•^^t'-- ''I'l^'^"'.^ '" '^ '"^'"'^'' "f 
 
 -:. and In ri: Hiirmmn, 3 R. & C., ;W(i dis- '-'"^t-^ = ^he attenlioii <,f the .Judge who grante.l 
 
 tiiimiii-heil 
 
 the order not having been called to the Probate 
 
 AV A,V. 11'. McKilli.ian, 4 R. & (1., 49G. •^^•^- '''^' '^- •^- ^'^ '"•*•' ^- "•^' "'"'»-■'• "■''''^'' '' 1"^'^ 
 
 I dissatistieil with a taxation of eost.s, or order 
 
 relating to a matter of costs, is enabled to apjily 
 
 •"»• Appeal from — On appeal ft*Oin the to the Court or a Judge at Chambers for a review 
 
 I'loliiUi. Court the Court will not consider other of such taxation or order without perfect'.iig an 
 
 gioiiiiils of appeal than tho.'^e contained in the appeal. 
 
Ill'ill, 
 
 11 a:, PKOHATK CX)URT. li:it; 
 
 Tlif finlcr ii!lM«inK tlit>iii>|H.Mil wiv« ni't ivhIiU' ii-t K.. hIhoh .ii'iiit.ir, Init mily ii> a miiiuII aiiioiini, 
 
 imiiri.vi.U.iitly Kiaiitnl. cluiiiiiiij,' timi tl.r apiM.iniiii.ni nf T. ,1. W. 
 
 /,'- /,Mn/o.i', •Jil N. S. U., (M |{. \ (;.), ;f.'<i: wcMilcl lie j.ifjii.lii'iiil tc. tli.'ir intfri'-ttH, llu' 
 
 IM', L. 'I'., 7. .Iiiilni' (if I'lolmtu iimili! ii iltrruu grimliii^ tliu 
 liiiiyw nf fill' Iiittor |)ctilii'ii,iin tlii' Ki<iim,l ilmi 
 
 11. CoslH In Probiite procwdlnKH Tt'sln- '^ M.aj..rit,v ..f tiw cvv.Uwvh ..f ii,.. imvMat,. i,„i 
 
 tin'H will was atta.k.'.l l.y llif IiusI.vh ..f tlif joim..! in it, .iii.l llmt tiir .uii..iiiitM ..f tluir , innn 
 
 .M..|li."list Chuivli, »;u:;^l.nr.. (to uln.m tiii' la.Hfly oxcfi-.l.'.l that ..t liiu liixl pHit i. 
 
 t,.Htal(.r l.a.l li'fl tlio ImlR nf Lis ••Hliil.' I'Y a Krom tiiis .li'iiw an ap|.eiil wan liik.ii In il„. 
 
 pnviniis xsill), nn the K'-'iii.! Hmt un.luo an.l .Fu.Iko in lv|iiity, l.y wli'.n. tl.f .Uhut n| tl„. 
 
 in,,,rn|Kr inllm.iKTK ha.l lim, nM.M. Tl.u .Iu.Ik.. .Iu.1«c nf IVnUati^ was amniu.ci. I'rnni il,i. 
 
 nf I'lnUatc .Uri.lr.l that s.u h inlliii'noc Im.l nnt .K-iHJnn a fmtlur appual wan tivkon In ihr full 
 
 hern nm.lonnt with Hiilliuifnt .■Ivamrss tn avni.l Cnuil, which was ,..|nally divi.lf I in npj 
 
 tho will, an.l .liiTctcl the co«ts nf all paitic^s tn .Inhnstnu... K. .1., an.l D.hI.I .1.. UnhUu^: ih: 
 
 I... pai.l ..ut ..f tho uBtato. Tlu' .lofivo as I.. app..intMU'nl was .lisLTcli..naiy with the .1 
 
 ...sts JiavinK l..>i'n appralnl tV th.'C.urt lu'l.l "f I'mhat... an.l Dosltanvs an.l Wilknis. .1 ,1.. 
 
 that tiu' Ju.lgi' .if lV..l..iH> ha.l n., p..wur tn .U- l...hliii« tl>"t T. .1. W., h.'inw a piinripal ri.Milnr 
 
 creuthuvayniunl.if ..•..sts ..iil ..f tlu' .'statf, an.l an.l tho liist applicant, was h;.'ally .•ntit:.,l i„ 
 
 cniil.l nnly awar.l thcni t.. I.c pai.l hy thf party a-lininisiiali..!. in .Icfanlt ..f a.vcpian.v hy tl;. 
 
 a^,'ainsl wh..ni his .h.isinn was n.a.K', hut that parties pfinmfil.V fntitlf.l, an.l that il wiis in- 
 
 this C.mrt .m review .•.ml.l .liiivt what f..sts cnnihent ..n th.' .hi.li;.' ..f I'mhat.' I.. 1m\.' 
 
 shniil.l li.' an..wi!.l, an.l iVnui what fiin.l. Thf app.Miitnl him. 
 
 paiti.s wcfo aucnnlinfe'ly .li.wte.l to pay their /'. /■.Iniuist.me, K..I. •riielSant l.einu ..lu,,!. 
 
 ..wn .'nsts up t.. th.' time ..f the .leeiee, ami the ly .livi.le.l, ihe ,in.lf4ii..nt app.'al.M ai,'anis| hum 
 
 app.al was siistaine.l with e.ists tn li(^ pai.l hy stan.l. 
 
 the trustees. ^" ''' ''''''"'' -"^"l''''"' /''■'"■'". I N'- ■'^- 1>. ■'■!'"■ 
 
 1(1 ;•' llijl'i niiiii L'^tiih, :< 1{. »^ ('., 4.S((. 
 
 U. EslaU' of (h'ceast'd parlin'P lu'ld lia- 
 
 12. DlscrelltHl of JiI'IkC of I'roblllC The l,le for unpaid balance after lapse of tbuivtais. 
 graiitinj.' nf a.hninistratinn 'A IkuiIi nun t.> the the cHtate not liaviny heeii settled and na pre- 
 wi.l.iw ..f the .lecease.l was appealed fmni hy his judieeaiipearin^f -Laches Novation I'arties 
 ilauglitef, nn the ^I'.iun.l that the a.lministiatfix to proceedinyx in Court of Prohate DctiiU'f 
 ha.l lieen ^.'iiilty nf waste nu the lan.ls Mt ..tf t.> of non-presentment must be rai.sed by answer 
 her as .l.iwcr. It ajipearcl frnm respnmlcnt's (,,. counter allegation I'lainiill' .le|insiii.l tin' 
 
 alli.lavit, that, whetlier her acts ainnuute.l tn ;,„,„ ,,f S!I4!I..V> with the lirm .if W. I. ^ N'li mi 
 
 waste nr not, sh.' c.iusi.leied herself justitie.l hi which intci'cst wiis pai.l annuidly, ami i.rcivi.l 
 
 the c.iarsi' she ha.l pursueil, .i.s mi a.'kunw !e.l,Limeut the |)rniiiiss.iry nnii' i.t 
 
 //./(/, that as there was untiling to in.lic.ie ,|„, li,.,,, f,„. the am. Mint, ital.'.l .luly Isl, |s7i;. 
 
 siuh lli^il.luesty nn the part .if the wi.l.iw as |,„yalile niie mniith after .late. \V. I. .hi.l iii 
 
 shniil.l jireclii.le her frniii all right tn tiie a.liiiiii- ),ily. |,sst», after which the business nf tlic tinii 
 
 tratinn. the Cnuit cumI.I imt cnntrnl the .liscrc- ^^--i^, ,.,,iiijinic.l byC. I. the suivi\ iiig |Mitii.i. 
 
 tinn c.iiiferre.l by the .\ct nn the .lu.lge .if wim was als.i executnr .if the estate nf llic .!.• 
 
 rrnbate. ceasc.l. In .Inly, IsS'J, ( '. I. wrnte in ihc \u\\w 
 
 In rr l-:.l„h n/ l,'no/,, 1!. K. D., UV2. _j. ,|,^, ,i,.,„ t„ ,',l„i|,iitr euchiHiig the ain.Mint ,.l 
 
 interest then i\nr nn the mite and siigj.'i>tiii.' 
 
 i:{. nisCrCtlOII <»f .IllrtgC of Probate -T. J. that if plaintilV c.mclu.le.l t.. aUow the ui.imv 
 
 W., a bairister claiming t.i be a principal cre.li- t.i remain in their iiaii.ls he had better liiive tln' 
 
 tnr ..f .Mis. 15. , wiin .lied intestate, apjilie.! by note renewe.l as it wnuhl be running six yivu- 
 
 petiiinii t.i til.! .Imlge .if I'mbate, praying f.ir the fnilnwing duly an.l there was some <M<l 
 
 lelt.;rs nf admiiiistrathiu <m her estate. .\ whether .ir m.t the payment of interest w.uiM 
 
 citation was thereupon issue.l an.l puldishe.l keep the imtc in f.irce over six years, 
 
 oalliiig upon the eru.litors, next nf kin, an.l par- In eoiise.iuence of tiiis plaiiilitf .lelivciLMl u|i 
 
 ties interested in the estate, t<i ajipear ami sh.iw the .iriginal ii.ite ami receive.l in retmn ^ m« 
 
 cause, if any, why a.lmiuistratioii .sli.mhl not be note similar in all respects except the .liitc ^lU'l 
 
 gnmted as piaye.l. On the .lay ai)pninte.l a a slight .liflerence in the amount. In Fehnwry 
 
 petiti.m was presente.l .m b.'half nf a number nf 1SS4, C. I. faile.l in business an.l plaiutilfliM 
 
 persni.s claiming to be credit.irs .if the. leceased, an attested claim against the estate <if W ■ I- 
 
 praying that adniinistrati.m be grante.l to W. the .lecease.l partner, for the balance .hie Im". 
 
ll:«7 PROMATK COFRT. HMS 
 
 t'l.iir yi'iiiH li.iviiij; .liiiiMcl Niiirc thr ili.ith ,,f rinliMt.- is imt jiiHtilicd in lif,itin>; the ju.lgiiuiil 
 
 ^^ • '■ .iH ,1 iiiillily. 
 
 Ihhl (\). TImt iiLiiiiiitlwiiH ciititlril tiM'ljiiiii /'w Doilil, .1, - •I'll,, jinifnil pt iiu'iplc is. thai 
 
 iiUiuiict flif I'HtJitf ..f ihc ilcToiwoil partner, not jihlt'iiifiilH aio valiil nntil hcI uhIiIc in the Ci.iirl 
 
 wiilistHiiilin^' \\\v il.liiy, llir cMtMtr ni'l liiiviii).' in wlii.li ilicy mi' ).'iv«'ii. 
 
 liiiM ■..ttlfil ill tlif I'lciintiiiK', Mild it nnt iippiMi lit ,-• H^tui, v/ Mmy y,l^iiit, '1 'I'l i., I. 
 
 liii; tliitt tlliiHi' iiitfii'.'-tcil IiikI Iii'i'ii ill iiiiy uay 
 
 '",',',"!■!'; ... , , . n. .liKlk'nicnt m-ftrdiMl In lin>tliiM> or 
 
 I.I. I iiiit III till' iilisciici' III iH'iiiil lit an rxnioH ,i . „ . i v a. ^ i i i. ■ . . ,. 
 
 , .„ , ', , ' (Ifci'ftMfd Estiite (lei'laivii lUHolvfiit in Pro- 
 
 T;""" """;;"'■•••. tli.'f-tHand.. 1,1... h„te Court Exec-ution tnav iHHue a„.l ».e 
 
 . 1,.' par.U's wnnd not wamint tlu' infi'ivn, .' ..f-nd...! on land hot.n.l hv it- Balan...- du.- 
 
 .1... |. utmrt ,n .ak.n,' ,hi. iilw M„t.'. infmli'd ,„^,. ,„. ..j^j,,,,.^, „„^ „,. :^„„,^, ^^^^,.^^ ,,,.,, 
 
 '";';"';,"■*■"' ' '•""" "f ""• ""^•■'' I-'""'"'' R. S,. ... 127. H. 70 -Cf. Bth R. H.. <•. 100, h. 72 - 
 
 (.11. llial tlii'ii' wax nil siirli iiitini hut imi nt ii ii-i i. i ,. . , i i i i i i . 
 
 , . 11 I ,1 \\ |,,.|,,. II jiHij/nii'iil liMH iii'i'ii iliilv iri'iirdi'd in 
 
 "iniiij^cr mtii till' iiiiitiai't, or ni'w ti'iiii III run- .i... iji' , ii... t i i . ' ii- . . 
 
 .... , . till' litr linii' .it a ili'icascil pail v, and Ins r.-tati' 
 
 ililinii iin"irpiiratii mln il ,im tn I'li'ali. a i i i i i • i i i ., , 
 
 ' has lii'cn ili'iland insnlvi'lit hv thi' I'lnl.ali' 
 
 iiiiviitiiin. ,, . ,' , , 
 
 ,,, ,,., , ,, , • "Mil. an t'Xi'riitiiiii niav, ni'Vi'i'thi'li'ss, 111' isMit'd 
 
 III. I lial thi' ( iiiiit lit 'ill lati! had inrisdii'- i • i , " 
 
 , ., ' I'll siiili iiidj..!int.nt, mi a pnipii' siil'l'csIiiiii nt 
 
 tiiiii t" ilciidi'iiii plamtitt s I'laini, niitwithstaiid- ,•.,„, „ ',,, „ ., . . ,. 
 
 , , I . tarts i.n tn«. rcrniil, aL;aiiist Ins cxciiitipr or 
 
 111- that till' siirviviiij; partner was lint iiiadi' a ., i,,,;,,: , i „, i . i i i .i 
 
 , ,. ' ailiniiiistialor, Imt laii In' I'vlriiili'd milv mi tlit' 
 
 |iillly 111 till' pliiri'i'din.'s. 11111 1 • 1 
 
 ,, ,' , ^ land limind hv siuh iinUiiii'iil. 
 
 ',''"('/•'. Willi hi'i' I hi. siirvivim,' pail iiir iiiiild ,,• ,„,. , , '„ . , ■ i . i • i 
 
 I , ,, "" ' It any lialaiii'i' ri'liiaiii iliii' In sii.h nidL'iiiiiit 
 
 I'l' mull' a jiaiiy 111 iiriicfui iiii;,s 111 lis iiwn liLrhl. ,. i;. „ j. ., i f .i i i i i 
 
 ., ,,,, , ' ,. . '^ . I'li'ditor, aftff a sale uf tlir land iiiidir muIi 
 
 (.11. I hilt there uas.siillni,.|it evidiiiri'liii'stali- .....il.. i ; .-.i i . i ■ . i .■ 
 
 ,■,.,,. . , exeeiitiiiii, he is eiilillid In claini llieietnr mil 
 
 Ibll the elaini Wllhnlit i t nt pi i'mIiI nielil ut f.i . i . .• . i i i i i 
 
 ,, . . .1 , , . ' lit the pelsnnal assets lit the deieased, niidei the 
 
 till' liiite at tlie pluee where It was made iiaval.le. .■ .'-,,{,1,1 
 
 I .... . ' . ' • • pri'MM'.lls nt seetion ,0, nf the rinliite An. 
 
 I'lil It that were iieeessarv and the e.xeeiitms ,.,,., •, ,. ^, . ,,,-1 
 
 . I , , , • (.liil lve\. .>lats., I'. !'_',). 
 
 \VI»liid In rely nil siieh a detellie it shnllld have ,.,,.) i. ^ i.i- -i> -.1 1. . 
 1 , . , , ., (.il'l l>. >.. ■'. l-i, s. ,M, same as .ith !!. .•>., 
 II liilseil liy an answer nr eniinler alle,i.'al imi ,, ■,„, ^ -., , 
 
 wlii.li llie praeliee nf the Ciiiiit nf j'rnliate '' ' ^' '"' ,. , ,,,,, .... 
 
 11 1,111-riiiri 1 V. l*iiiii\ I Old., (iSd. 
 
 lllnws. 
 
 I!' Iv^tiil, In 1, i.r /nirfi ( 'iiw/i/n //, 
 
 7 1;. .V (i, MIS; IH. .rtirlsdicHoii .\|)|H>itl — Costs IVr- 
 
 TC r.. '!"., I Hi. ^mial pln|ieity devised In exei'iitnis fnr a piir- 
 pnse whii'li fails iiiiist lie di^l riliiiled liy the 
 
 l.». liiV(>iitor.v Power to order addilioiial ''^""""'i'^ " n,' iiu' next nf kin. 
 
 items to be inserted - The .liidu'e nf I'rnliate '^"'''' 'l'«>ii'i<ni"i> i-* within ihe jmisdii'iinii . if 
 
 liiis till' pnwer, afler hearing' evidence mi the ''"' l'i"liate Cniirl. 
 
 t'.i'ls. In mder an exeeiitnr nf administi atnr The .><ii)ireiiie Conrt mi n]iiie,il finiii a i'mliate 
 
 til imliide in the iiiveiitory, as |iiiiperty nf • '"""'t "iH t'M'i'<'i**<' 11 «li-''i'i'i'ti'iii as to ensts, and 
 
 ilt'iTiisi'd, aitii'les elaimed liy other parties, Imt ^*''" '" >-'«'"f''il j-'ive eosts against a party tinnee- 
 
 li>'tii t reiiuiru the exeeiilnr nr adminislralnr ''■'*-'""''.\' ""I'kini.' or resistin../ a elaim. 
 
 t" swear to an inventory thus amended Kv I'^^'d'' «j Ah xniiih r MrDoiialil , Amwh, \'2:\. 
 \\\* iinler. 
 
 I'lt'fi.re the eostsnf theprneee.liii.ij;snn eitatinn 10. .nirlsillctloil ill psirtltloil Of lillHl — 
 
 til ii'iiiler an aeennnt eaii lie allnwed aj^aiiist an 'l"he real estate nf the intestate was parlitinned 
 
 Hiliiiiiiisiratm' personally, the notice reipiired liy liy ( 'oniiiiissimiers appointed under the IVoliatc 
 
 ■I'ltmn 1(1, ehapler V2, of Ads of IS.nS. inust he .Ael, wlm, liy their report, left a certain |)iirtioii 
 
 -'ivfii, and he must ajijiear frmn the evidence to of the land nndivided. Tiiis partilimi was coii- 
 
 Iwvi' acted frniidniently. lirined liy order of the ('luirt, the estate having 
 
 /// ;•!' K-ilul, «/ Unlstdti, 'JTIioni., 10."). lieen |)revioiisIy .settled liy decree of the .Iiidgo 
 
 of I'rnliate, wliicli^asin evidence. .Afierward.s, 
 
 t«. JlKliflllOIlt on warrant of attornry W. Hawkins, Imsliand of one of the heirs of 
 
 made by husband and wife -Judgment valid intestate, iietitioned the Jndi.'e of I'roliate for a 
 
 till set aside in Court where given-When a partition of tlio nndivided portion, and a large 
 
 «|'inaii entitled to real estate Joins with her hmly of evidence of lossessimi was put in on liotli 
 
 liiil'iaiid in executing a warrant of attorney on sides, the whole of .vliicli this Court held to ho 
 
 «hiL'lia judgment is entered and recorded, in futile and unnecessary, as there was no ground 
 
 order to hind such real estate, the Court of for sustaining any possession in either party 
 
113!) 
 
 PHOnATK COURT. 
 
 1140 
 
 timt cdiild iiitliHiii'f till' clicJHiim, Till' .Fiulu't' 
 
 of I'l'iiliilr ill->liliK-.i'cl till' prtitliin nil llli' u'l'iillllil 
 
 llmt ill' Imil nil pi iw If lo Hi'iili'ili'<piili'il inirKiimit 
 4if titli'. (Ml iippi'al to till' .lililt^t' ill l<'.<|Uity thin 
 (Ii'i'Imjiiii wiiK iiM'i luliil, mill till' .IiiiIk"' "f I''" 
 
 liiili' iliii'ftt'il til pii'i' 1 uitli tlif I'liii'*!'. ulii'li 
 
 ht) iliil, iiiiil illi»iiiii«Ht'il till' pi'titi.iii <>u till' iiii'iits, 
 ili\ iiliiiU till' iiiHtH lit'twi'i'ii till' litiKiiiils. 
 
 Until p.ll'tirM lilivill^' llppi'illril, 
 
 //«///. that till' tilled iliiii'i' iil"i\ I' ii'fi'iii'il ti> 
 was iviilrliri' witll llif iillirr I'vidrlii r lirfmi' lln' 
 ('unit of till' tiimlm-'ttltiiiriit III till' iHtuti' liy tlif 
 .llld>.'i' iif riMlHiti", that aftir siiili M'tt'i'liii'lit 
 his jiiriHilii'tii'ii oviT liny iiiiwild nr iiiidividrd 
 porliimm't'iiMil ; that tlii' i)li.ji'Ltiim fur want of 
 jiii iwdictiiiii wan ri>;litly taki'ii iit any stunt', "ml 
 that ihi' iippi'iil "f till' pi'titiniii'i' Haw kins iiinst 
 thi'ii'tiMr 111' ilisliii.>>ril. 
 
 Till' riiMtH of lioth Hppi'als Mill' ,y;ivi'ii In tin' 
 ducoussful party liifini' llii' .linlKf "f I'mliati', 
 I'Mi'pl till' rusts (if till' I'VidrllL'i' aliiivi' ri'fiiri'd 
 
 tu, ri'laiiiin t<i till' titlf l>y iiosHi'ssimi. 
 
 //) /•, Iv-il'th III' SlllllMIII, .'t 1!. iV ('.. .'(."iT. 
 
 •iO. I,«'Kao.v-Iilal»llllj ofn-iil (Slate t(M»i>.V 
 
 — Tin.' real I'sliitr nf a ti'stiitnr is not liaMi' Inr llu' 
 jiaynii'iit nf li';.'a('ii's, iiidcss it is inanifrst fiiun 
 till' will that sinli was tin- ti'statni's inti'litinli. 
 ('<iii>liiiitinii "f till' I'liiliati' Ai't, iliaptur ll{(l, 
 KfV. Slats. cJiid si'iii'sl, si'i's. l;t and IS, 
 
 III n K-h,i. I,/ MiKiiih 1 OM" !•■<'• 
 
 •21. Letters of i'robate Exetiitor not 
 
 liable fov moneys paid, though will at'teiward.s 
 set anidi' Notice of application to set aside 
 will -i)L'ft'iidaiit was ajipiiintt'd exui'litov lilidcr 
 a will whii'li aftur lu' had iilitaini'd proliatu and 
 had idlliTffd di'lils, |iaid li'j,'ai'ii's, itt',, was set 
 aside fill' want nf due execiiliini. 
 
 //«/'/, that the {planting of proliatu was a siif- 
 ticient defence to an action lironi^ht liy the ad- 
 niini^tiatois to ici'iivef the inoneys ]iaid. 
 
 ,l/<f), thai iilaintitl's" case was not strength- 
 ened liy the fact that defendant liefole paying 
 the legacies had notice that the will woidd lie 
 attacked iiixiii another gioiind than that upon 
 ■which it was .set aside, 
 
 HatidnUil nl. v. D'hi/i, (i H, k<'., Hl<» : 
 (I C. (.. T., 144. 
 
 •22. Linbility for ReRlstrar's fees in 
 
 Probate Court -I'laintiff, a Registrar of I'm 
 Itate, was reiine.sted hy the defendant, a proctor 
 practising in the Court, to piepare copies of 
 certain papers. Hefore the jiapers were com- 
 pleted plaintiff ceased to be Registrar, hut was 
 not aware of his removal from office when the 
 order for the papers was given. The work was 
 <;harged not to the defendant but to the estate 
 
 for which he was actiliK. The Manistriitf'ii 
 Colllt and till' Coiinly ('ollll, on nppi m1, decjilr.l 
 
 ill favor of the plaint ill. 
 
 //'/'/, that the defendant Was liable for till' 
 fees. 
 
 /;//■". V. hirkn, I K. \ (...'.'111 
 
 2!). LleenNe to well A testator tle^hiMl 
 
 his leal estiile to his wife, " ill illlst to »ill ,iii.! 
 dispose of the same, at such times, and in hiiiI; 
 niaiiiiei', and in such portions, as she might 
 deem suitable and pnidellt, and to iiiM'sl tlir 
 proceeds arising from such sale in Honie safe uiiil 
 prolitable security, and to apply the pioii'i'il. 
 arising from such investments in the support iiml 
 inaiiiteiiaiice of herself, and ill the support, c.li, 
 cation and niainteiiaiice of such of his cliilihi'ii 
 as shoidd be under age at the time of his iliilli, 
 and until such sale to receive, take and enjoy tlic 
 rents and prolits arising from such real e>tati'. 
 during the term of her iiatnial life, and |o apply 
 the same as almvu directed." 
 
 IJy a snliMe(|iielit clause he ileviM'd ami \n- 
 i|iieatlieil, from and after the death of his witi', 
 all his real and iiersonul estate, and the iiioiii'Vi" 
 so invested as aforesaid, to and amongst liis 
 sons, of whom M. was one, their heirs mul 
 assigns, share and share alike. 
 
 M. died intestate, his mother was appoiiiti'il 
 administratrix of his estate, and iijiplication «;i> 
 made to the Court of I'lobate liy the assiglU'i'sot 
 certain of his judgment creditois (his peiMiiiiil 
 estate being sworn to he iiisiitiicieiit for the p;iy- 
 nieiit of his debts), for license under sectieli.i l.'t 
 and 17 of the I'robate Act (I'.ev. Stat>., ilii'l 
 series, c. l:«l), to sell his interest in the li'iil 
 estate of 'he testator. 
 
 //.Ill, 1st, /"/• Voung, C. .1., Dodd and IV"- 
 liiirres, .1,1., (Wilkins, ,1., (/m.s« y,///*;;), that llic 
 wife of the testator look an estate for life miiIv, 
 with a contingent remainder in fee to his soli-. 
 I'd- Wilkins, ,1.— That the wife took an cstit. 
 ill fee. 
 
 •Jiid. /''/• ^'ouiig, C. .1.. and Dodd, .). -Tluit 
 the granting of a liceii.se for the .sale of ic:it 
 estate under Revised Statutes Ciiid stiiosi, 
 chap. l.SO, .sees. 1,1 and 17, is discretional V with 
 the Court of Probate, and that thai discietioii 
 was rightly exercised in the present iiistaiue I'V 
 the refusal of such license. 
 
 /',,• DesRarres and Wilkins, .I.T, — That tlu' 
 Court of I'robati.' had no power whatever t'l 
 grant such license. 
 
 Ill Ihi' K-iiati: of Miihrul O'.Snllirnn, 
 
 10M.,.'W- 
 
 '24. Lleeiise to sell-Wlien .lohii Mf Don- 
 ald, the owner of certain real estate, died iiH"!- 
 
1141 
 
 pRoiiiniTroN. 
 
 114-2 
 
 vi'tit, liiiviiix u|i|iiiiiiii'il tiiiii lAi'i'iititm fif IiIm litNl 
 will, anil Iwiiiif till' I'Xi'iiitnix liMiU mil I'mlmlf, 
 mill iililuiiii'il all iiiili'i t'lniM till' I liiM'i iHii' ill 
 ( iiiiiK il t'ltr till! Nulf of tilt' liiml, iiinlir wlijiji 
 llic I Mill wiiH Niilil til ( IiImIioIim, 
 
 //■ /'/, timt tl|illl;,'ll till' utlll'l t Wll ('VI'llllnlM llilil 
 
 Mill ii'iHMiiii'i'il, mill the Iwii will! ai'tt'il iiiiilii 
 llii' iiiili'i' liiiii mil jiivi'ii till' st'i'iiriiv H'i|nin'il liy 
 Statiiti', yi't till' iii'ili'i- iiiiilil iiiit 111' iiii|iiimii'il 
 liv tliii ('mil t. 
 Ilililiiirliiii, ( '. .1., '//'ill iifiini. 
 I'hi^liiiliii V. .\/rlh„ifihl il „/., •_• Tlimii., ;jli7. 
 
 'I'u Power (if The ( diirt of I'nihiilc Iiiim 
 
 III! till |in\vi'i' lit' till' ( 'mil I iif ( 'liaiii't'i'v til cnalilii 
 II 111 si'ttit' tilt' ai'i'iilllit* iif all I'stalf, 'I'lii' 
 ui'i'niiiii lit an ailiiiiiiiHtraliir, wlin i.i ii I'l't'ilitnr 
 iif llii' cxtati', liilLst III' llUil at li'asl a liinlitli 
 lii'fiiii' lilsli'iliiitimi of tilt' I'.itiiti'. 
 
 Wlii'ii a ilt'i'i'i't' (if 11 I'i'iiliatc ('milt i-i li'Vciscil 
 lis au'aiiift III! I'xuciitm', lit' will not in milinaiv 
 caiti'i )ii< Mulijt'clt'il iH'iftiinally tn I'liHts. 
 
 Iv'f'il' It/ I'lilh. riiii Mil)iiiiii/(/, .laliii's ',i\'2. 
 
 W, I'riM'tlci' ill A will iiavliii; liccii pro- 
 
 il.iiiii fur •noliati' in t'miiiiinn fmiii, iimliatf wns 
 nfii.iril III! ariiiuiit of ilt'ft'i'lM mi tlif fai'f uf it, 
 mill tiu'it'ii|imi tlif I'liiiiHt'l prt'st'iii cttiiMunti'il tu 
 liniiii'il with an invi'MtiLtatimi tn t("<t llit; will in 
 sniciiiii fiiriii witlimit tilt' ii.tual fitiitimis anil 
 iitlii'i' iiri'liiniiiai'ii'H iiccoiiling to tiiu prai'tii't.' 
 iif till' ( 'milt. Till' .Imlui' iif I'liili.iti' ili'i'i'ueil 
 till' will tn 111' invaliil. A iii'i'iiiiiaiy Ifuateo ] 
 uiiiji r till' will, wliii liiiil nut lii'i'ii a iiarty in tlu' 
 I'liii-^i'iit, was niif (if tilt' a;)iii'llaiit.-i frmii tliii ilf- 
 i;i'i'i'. 
 
 If'lil, that till' a|)|it'al niiist lit- allnwtiil Imt 
 witliiiiit I'liMts, as tlii'it' hail ln'on a i-mist'iit tn tin.' 
 IHiiii't'iliiigs lic'liiw liy all the L'mili.sul that hail 
 ii|i|)i'aioil at tliL' liar in this Couit, whn wt'ie thu' 
 ciiiii' (ii'dC'toi'H iintl ailvnt'atus whn had a|i|i('aii'il 
 1."1mv. 
 
 //( )■( KsNt/i Ilf Coil iiul/i/, •_* It, it (;., 7.'< ; 
 I c. r.. ■]'., .V).-.. 
 
 -t. Qiiuntiim Meruit Attrndaiue on and 
 
 care of (leceaaed- H. K. dii'd at a very iid- 
 ViiiU'i'il ago hiuiiig hfen faithfully iiiiil kindly 
 curt'il fill' (luring the last tlireo years of lii.s life 
 liy lii^ *'iiu .1. K. and his smi's wife. He had 
 priiiiiiscil in cnnsideiatinn nf this atteiitimi and 
 eare to devise one of his houses tn a smi nf ,1. K., 
 Imt iliiil intestate. No liargain appttared to 
 I'lvu heuii made lietween H. K. and .1. K. as 
 '"tlif rt'iiuiueration .1. K. and his wife were to 
 itftive for taking care of him. 
 
 H''l'l, that J. K. was entitled to reneive 
 riM.SDiiahle compensation for the .services ren- 
 ik'rcil mit of H. K.'a estate which was consider- 
 
 alili'. •). K. had lived III nllinl II. K.'m hniriCK 
 
 diiiiii'.,' till' ilnii' III' tniik I'll!' lit till' n|i| niin, 
 willimit paying reiil, and the ('mm aljnueil hini 
 six hundred dnllars, mi appeal finin the I'm 
 liate ( 'mirl, w liii'li had allnwi'd liini .'^.'llill, and 
 mdeied the I'Osts of the ill\ •'<! i'.Mt imi and appeal 
 In lie p.lid out of tht^ l"<tate. 
 
 til <■. /:\/ii'i <>/ II. K'liii'ihj. •_' II. &. C, .•i.'lll, 
 
 'iM. Siibinl.HNlon and award No esiopiiel 
 
 l)etween other parties 'I he surviving e.'.ei utm 
 eitt'd the parties ilitui'UHted In the cHtiite of the 
 ili'iiased In attend fur the piirpnse of a liiial set • 
 lleliietit, and a pi t'liiiiiliary i{ii('stiii|i was raised 
 as to w hetlier all inattt'iN in dispute had not lieeli 
 settled liy nil award. The award in t|liestion 
 resulted from a sulililissioli towhieh lliee.\eeutor 
 iiinl e\t'iutli\ alone were parlies and leeiteil 
 ilitlelelU'es lietWeeli tlinse parties only. It up- 
 peareil that ntiier parties tiiuli timse wi'lf inter- 
 ested in the estate, viz., t he ehildreii aiiil the 
 ili'ilitms (it the testatiii . 
 
 Il'l I. that whether tiie parties tn the Mihmis- 
 simi were nr Were imt estnpped, as there wcie 
 ntlier parties interested, the .lllilge nf I'rnliale 
 slimild have nverruled the |iieliiiiiii!ii'y iilije. limi 
 and ilei'ided upon the eviiU'liee independeiitly of 
 the sulinii.ssinli. 
 
 /// /•. i:st(ili i,/t,\i,r,f Siii:'li. ,•.. ;t R. & (i., .'illll ; 
 
 •-' ('. L. 'I., (ilMi. 
 
 PIMMIiAMATION. 
 
 1. or Kold district 
 
 s MIMXi LAW. 
 
 t!. Of Uor('rnor-O(>n«'ral - 
 
 s ' CANADA TKMI'EKAXE A(T, 4 X ,.. 
 
 TKOtTOK. 
 Liability of, tor HcuristrarN fees In Pro. 
 
 bate Court - 
 
 s PKOBATE (01 RT, -'-'. 
 
 PKOIIIBITIOX. 
 
 1. Count} Court iiroliibltcd Trom pro- 
 ceeding with rirfiomri to remove conviction 
 under Canada Temperance Act — Reference 
 by Judge at Chambers to Court in hanr — 
 A conviction under the Canada Temperance 
 Act wa.s remnvetl to tlie t'ounty Cnuft by 
 
114:1 
 
 PKOTHONOTARY. 
 
 1141- 
 
 virtinrnri. '\'\n- |iii«s((iiliii- ii|i|ili<Ml to u .liid^jit nmy Ix; I'l'HtiiiiinMl liy I lie Sii|iriiin: < 'oiirl l.y \M il 
 of Ihf Siipicnio Court at ('liitinlii'rH for ii of pidliiliilion. 
 
 writ of |M'oliiliitioii, to proliiliit I In: Comity 
 ('oiirl from fiirllicr iirocM'cding on llic f r/iomri, 
 iiricl llir' oilier (//i/ for tlii' writ of |iroliililt ion 
 was, liy a .) iiil).'i' incsidiiiL; at ClianilicrM, ri'trrrrd 
 to the Coiirl ill liiiiir. jlcfi'iidaiit'H coiiiimiiI oIi- 
 jcilcd that till' diidv'i' at ( 'liaiiilii'is could not ko 
 irfcT tllc a|i|iliratinii. 
 
 //'/'/, that tlic writ of |iroliiliitioii iiiiisl lie 
 iillowi'd, liiit willioiit cohIh, 
 
 ijiiiiii V. o'.w;/, -JO N. s. }{., (H K. &(;.), .'•:)(». 
 i. Trover Di^rnicc In County Court 
 
 (liJit thii value of (he },'()odH Ih over $20(t i 
 Writ, of prohiViition hefcMilanis weic sued in 
 the County Court in an action <if trover tor 
 foods and pleaded that the ^fdnds alleged to have 
 lici'ii converted were of the value of S(i<K( and 
 upwards and the ('oniity Coiiit had no JMiisdic- 
 lion. The plea was dcminrcd to and lu'ld to he 
 ;.'ood liy the Coimly Court .llid>.'e, who was 
 aliout proceeiliii;; to t I'y the' case when a rule 
 »/v/ was taken at the instanci' of iJefeiidantH for 
 a writ of prohiliit ion. 
 
 //(/</, that the plea Was not a ^'ood plea, as I h(! 
 daiiia).'es (daiiried \vcic only .^''-'IKI, and the liiean- 
 lire of ilainaj^es In trover was not necessarily the 
 value of the: f.'oods : and that, the Court having 
 jurisdiction, the writ of prohiliilion could not 
 h(t L'tatlted. 
 n'Tuoh 1 1 <il. V. Ifiilliir, ,1 III., I H. .V <;., ,'{.-.7. 
 
 Oil iijijiiiil III III! Siijiri nil ('mill III' ('iiiiiiilii, 
 III III, Si roll!.', .!., ili^xi iilhiij, that the eflect of 
 the jud^'inenl on the demurrer was to ipiash the 
 writ, and the rule /(/-/' for a writ of prohiliilion 
 should lie made alisolute. 
 
 /'<;• Strong', .)., ilisii iilimi, that the jui|>.'meiit 
 of the ( 'oiinly Court ,luilj.'e on the deiniirrer did 
 not dispose of the case; liiit he had a rij.'ht to 
 reconsider tin,' same on the trial of the issues 
 raised )iy the other pleas ; that the plea to thr- 
 jurisdict ion, liy attorney, was null and void, 
 and if jiidj^inent had hcen entered of record on 
 the demurrer, sudi jiiil).'iucnl would have heen 
 likewise null and void, and that tin; lunount 
 (•lainied liy the plaint iH"s declaration lieiiif; over 
 (fir in Can. Di^rest, prohalily "only" correct 
 readinu) i*'-'*"!, the Court had jurisdiction. 
 
 W'lilliiii V. (yTiiiili , li;ih Filivwirn, IS.^l, 
 
 All'i/fii mriU o/IJiiiKiild v. /•'//'/// iinl., 
 
 •.i H. & •;., i:.;(. 
 
 On nji/iiiil III Ihi- Sii/iri iin Cuiiil n/ Cniiiiiln, 
 III hi, that so much of sec. 1,'ptl of .'(I Vic, c, S 
 (l)oiniiiion Inland Itevenue Act, IXti"), as ;;i\is 
 t he ( 'oiirt of N'ice-Admiralty jurisdiction in cases 
 for the collection of penalties for illegal ilistill- 
 inn, i** iiili'ii I'ii'i". The judLfinent ol the Siipnini- 
 Court of Nova Scotia reversed. 
 
 .lll'l/ 'I'l III I'll lij I 'llllllilll. V. I'lilllil III., 
 
 mill Jiiniiiii!/, /.w;, Cas. Digest, .'fJI ; 
 \ C. I.. T., IHI. 
 
 .s'«< 
 
 PKOMISStlKY NOTES 
 
 ItlliLS ttV KXCIIAX^K AMI PIMIMISSOKY 
 NOTKS. 
 
 I'ltOSI'KtTINti lilCKNSKS 
 s >II>|N<; l,AU. 
 
 iM(()TII<»OTAI{V. 
 
 Till' 
 
 I, it-. 
 
 1. Authority lluiitnl to County 
 
 power granted hy .ji ■ptei- 111 ot the l!c\ 
 (•Ith series), to I'rolhoiiolarieH, to giveoiiliisti.r 
 security for costs, for licllcr part iculars, and l"i 
 further lime to plead, is limited to the cniniiy 
 where the writ is retninalilc 
 
 (JiimniiniiH V. /lio'iii, - I!. iV C.,.'i'i''l. 
 
 2. Interest on money deposited hIIIi- 
 
 L'ndei ;{! X'ic, >■■ I'-', and :(" N'i'-., c l.'l. il"' 
 .Minister of I'ulilic Works of the I .iiujii'.n "t 
 Canada appropriated to the use of the |)iiiiuni"n 
 certain lands in ^■arml>uth County kiinwii ii* 
 " I'.iiiiker's island." In accordance with -li'l 
 Acts, on the L'lid April, A. !>., IST.'", he iinl 
 into the hands of \V., prothoiiolary at lliilil^i'^ 
 the sum of .■*(!, ISO as compensiition and iiiliii-'. 
 
 as provided hy tlio.se Acts, to he tlnlf^itl'i 
 Cas Digest CJl' appropriated among the owners of said islaii'i. 
 This Slim was paid at several times, hy ofilii' "I 
 
 ;». VIee-Adinlralty Court rroliihlllon lo H"- Supreme Court of Nova Scotia, to one .v. a' 
 
 —The legislation of the Dominion Parliament owner, lo one ( 1., as mortgagee, and toutli'i- 
 
 (31 Vic, c. S,s. l.-itil. giving the Vice Ad.miralty entitled, less ten dollars. As the iiinni V I'"! 
 
 Court jurisdiction in cases for the (M.llection of remained in the hands of \V., the I'rolhi.iin'.'i) 
 
 penalties for illegal distilling, is »//m 'vVr.s and of the Court, for .some time, H., attorney l"i 
 
 the ViceAdniiralty Court, as an inferior Court, C., applied to the Supreme Court for mi "I'l'' 
 
1 1 45 
 
 QiKK.y, Till: 
 
 s ' SOVKKKIli.N, TIIK. 
 
 1140 
 
 <|IKKVS <0I \SKI.. 
 
 ul llii- ('(Hill ciilliiij,' ii|iiiii W'., ill): I'nitlioiiot.iiy, 
 III )i,iy DViT the IIiIcIi'nI ii|ii>ii ( I.'h |imi|mi|'I jiin ul 
 llii iiiDiifyx, wliii'li iiitricMl (II. wiiH iiiloiiiicil) 
 li;iil lif(!ii nHjcivi'il liy ilic I'l'DtliiiiiiitHry t'i'iiiii ilio 
 liiiiik ulitrrc In: liiiil iiliiccil till! I'uiiiiiiiil on il)!|i<isil. 
 
 W . ichiNl(!il tin; U|iplii;Ht.iii||, (III Ihf ),'|(Mlliil llliit 
 III wus not iiiiMVMTiilili; III llir |)r(i|iii<;lcir of tlin 
 |iiiiiri|ial, III to I he ( 'diiii , fur iiilcitrsi , lilll iliil 
 
 hi.i ii.iiy iiiiii iiii.MVMt iiiiiiiHfiir.M'i.ivi'.i iiy iiiiii. 1. ()uvcn*.s <'ciiii.s<'l I'owcrh of Local 
 
 A iiilc »/.-/ wiiM i^iaiilfil l,y III.' ('..nil, mill iii!ul<: Lt;giHlatnre to apj i-inl l,,tatcr.i jmlunt of piv- 
 
 ,il,-i.|iit(;,i)iilciili«llii; I'li.lliiiijoliiiy lii|iiiy wiml, (tcduniri; ( Ii.iiiIit.i •_'(» iiml -Jl i.t llir N. .S. Arts 
 
 (Ml liiliM.t intcrcNi III' icicivnl mi tlif iuiinniii. of IS7», ic.m|«.,:1 ji,;.- ihi' a|i|ii.niiiiii'iii uf «.»iiii-ii .s 
 
 //./(/, I. 'I'liitl till' I'lDllioiioliiiy Wii.M iiol en ('(.llliM'l and till' ir;-illiilii.ii (il ihciiiI.ikx- al (lie 
 
 lilliil loaiiy iiitciCMt wliicli tli(taiii(.iinlili'po«ili!il Uar of \. S. I.y tin- l.i.Mit.haiil ( iovci nor of I lie 
 
 inijiid wiiili; iiiiiirr till' I'oiitrol of tilt! ('oni't. rroviiici; in ('oi.ncil, iiif inhn. ri,;.., Inn, i\,r la- 
 
 Tli.il, in oiili:iin>^ tint I'lotlionotiiiy to pay over li^r in not to Ih' roiiMtincil a.s ri'tin.^pii'iivi' in its 
 
 llii- iiili'ii'st icrcivi'il liy liini, iIjc ('unit was t^ll'tMt, 
 
 .-iiiipiy i'Xi!l('i.Min.Li till' .siiininal'y Jiiii.silidlion .laiui-.s, .1., «/ms, /,///,,/, a^ i,, i In- laltrr Ail not 
 
 mIihIi larli of till' Siipiiioi' ( 'oiirt.s lias over all l.i'iiiv' i<lrospi'i'ti\ c. 
 its iiiini<!(li!lt(! oIliiiiM, I Til.! olil (iicat Seal of ;lii' I'lovn,,-,' llialiii 
 
 foililiit!!' anil II. 'iiiy, .),)., i/mw, «//;,,/. usr Hinr.' IS.'IT n.^..,! i,n pat.ntM appoinliuM 
 
 '.'. 'I'liat th.' oi.l.'i app.'al(!.l from, lii!iii^ a (,»ii.'('ii'.s ( 'oiin«.'l ami H!j^iilalin;^ pH'(!i!(|i'm'(! al 
 
 ilin-ion on an apiilicatimi I.y a tlijiil parly io llic liar in JHTH, iias.!.! lol„'tln' C.ny.a S.al ot 
 
 llii Coiiil, waM appcalahlc iimlii lln! Iltli «.'.,'. tli(! I'rovimi! on III.! Iniii.smiH.'iion of a new < lifat 
 "' '''"^ ^ '''•• '■' "■ ; Si!al to tht! Lieiilciialil -Covi'inoi in Ucc'iijlici , 
 
 I'liiirMirr, .)., inssniliiiij, ami 'raMi'lii!ri'aii, .1., I,S(;!(, tlioii^jli not ailopti-ii or pi (.claimcil l.y iIjc 
 
 ''"'"'""''• l.i.'iiti.'Maiit(io\iiiior in (■|.iim!il. .lain.'.s .1., 
 
 Ill poll. '(I ln!|.)W a,s, //( /■! Iliiiibr\ liliinil, i/is^,i,lii,i/. 
 
 .'t It. i^c ( '., ."ifiT ; U'ilkin.s, .1., a;,'r.'.!iii>,', Init ^;.\p|•.■.^,^inJj Ilic 
 On app.:al, a!s H'i//:liis \-, <li,l,l,s. 
 
 rUOVIMI.lli KAILWAVS - 
 V liAlliW.WS. 
 
 I>l liM( liOIIIKS - 
 
 pinion llial tli.! pr.'.i.:!..'.! of a (ileal Seal on I hi! 
 if 'S. ( '. It., •JO.'i. (loiiimcnl in i|iir.sti(,n, allixi'il I.y ijat prop.!!- 
 j olli(!.;iN, rai.-ii'd a (■omIiiNi\(' pii'!'.iimpl ion a^ to 
 its valiilily. 
 /// II I'riiiilriiri (,/■ Hihliii ^ <j. r. , L' l;. .V ( '., I,")(). 
 
 Oil U/i/ii III /ii /III Sii/'fi nil I 'mill III' Ciiiimlii 
 
 liy .'(7 \'ii:., c. •_'(), N. ,S. (I.nTI), till! i.i,uii,.|,ant- 
 (io\(iiior (.f till' I'roviiiL'i' of .Nova .Scotia wa.s 
 aiillioiizcil to appoint l'ro\ incial olliccr.^ iindii 
 tlic lialiii' of Hit .Majcsly V ('iiiins.'l l.'ariii'il in 
 till' l.iu for tin: I'mvimi'. liy .'{7 \'ii'., r. 21, 
 \. .S. (1.^71.1, till! i.ii'iili'iiant (iovcriioi wa.s 
 lUltliorizi'd to ;,'r.iiit to any iiiiinln'r of llic l.ar a 
 j)atcnt of pii'iiilciiic in iju' ( 'onri.s ot tin- I'ro- 
 viiii'.' of .\i.\ a .Scotia. It., tlic n-sponil.'nl , wiim 
 
 Lliihilil) or, for torts 
 
 V II A I I n V i'lTV i^r ' ■"""''' "•^"'" »'■)""'' ■"I'"ii 'Hill ,« it; 
 
 -V! IIAIjIIM.V, ( ITl OK ,j,,,,„i„,,.il I.y llie(;..v.!i'iior-(;i'm,'ial on ll„'-_'7t| 
 
 I).'C(!iiil).'r, I.ST-, iindi!!' tlii';,'r.!at .seal of ( 'ana'Iii, a 
 (,liii'(!nV Coiiiincl, and liy the iinifoiiii piaclicu of 
 tiif ( 'oiirt lie liad pi.!ii'ili'iii'i' o\(r all liifinl.ur.s 
 of till! l.ar not lioldiiij,' iiat.nts prior lo Ids own. 
 I!y li'tt<!is pat. 'Ill, ilatiid '-'(itli .\I,iy, |S7(», niid.'r 
 111.' Hiiiii-I ''i*!:!! of til.' I'id\iii(;.', and ,sij,'m!il I.y tln! 
 Lii'iitfiiaiil ( Ii.v.'inor and I'lovincial .Sccruiary, 
 Hi;V(!i'al in.'inl.er.s of tlit! l.ar wi'ru appoinlt'd 
 (.Mifcn'.s ('oiinH.!l for NovaScoli.'i, and pruccluiice 
 was granu'.l to tliciii, a.s well as to other (,»in;i'n'n 
 CoiiiisL-l iippoiiited l.y the (iovernor-C teiieial after 
 the Ist of .Inly, I.S(i7. A list of (,>ii.;en'.s ('onnsel 
 to wh.iln preecdeiice had I.eeii tliii.s given l.y the 
 
 PlBLIt tOMI'AXY 
 s ' COMPAMKS tCMtl'OKATION, 
 
 PlBLIt STKKET- 
 V" WAY. 
 
1147 
 
 RAILWAYS. 
 
 lUS 
 
 U.ut..Miu>i.<;ov.n.or, was ,m\,li.lu..l in the either from tl.e Covoiiior-iJemTal or tl,- l.,.u. 
 I'„„ul <!>r.tl. ..t th.. •-•Tth M.iv, ISTti, „ii,l tl.e , teiumt-CoveriH.r, W. in.Ae.l f. liave his caise 
 nanu' ut I!., th.' Rspunaei.t, was inchuUM in tlie futoie.! on the .locket i.nor to thul ot K. 
 list l.iit it <Mv.! ,.i.-c'e.lence and inx- - au.lieno..' i Tl'c n.otion wan .lisnilssnl. 
 ,,et.'.e hi-n ."o sevcal i-e.-sons ind.uHn.^ ai-pel- Lonlhj v. K,.ly, .S N. S. I)., :,.«i. 
 
 hints, wlio (li<l nut onjoy it hefore. 
 
 Upon atlhhivits disdosiny; the above ami otlier | 
 facts, iiikI on pioilucinj; the originiil commission | 
 
 ami letters patent, It., on liie Mr.l .lanuai-y, ; QIOKIM. 
 
 1H77, (.hlained a rule iii-i to K'ant him rank aii.l ' 
 
 precedence over all (,)ueeii'.s Counsel appointed in Of Bank dlrCClOfS, pOWCP tO IliakC Cillls 
 and for the Province of Nova .Scotia since the —Hy the Dominion Acts of 1H7I, c .'i, s. :)•.', mt 
 '•'('.til l»eceiMl)er, IST'J, ami to set aside, so far as less than three direct(.rs were constiimcd a 
 t'hev all'ected K.s ](rece.leiKe, the letters patent, «|norum for the transaction of Imsiness. i;y s. 
 dated the --'lith May, ISTti. Tiiis rule was made »» it was provided that directors sliould lie 
 ahsolute l.y the .Supreme Court of Xova Scotia ele.'ted l.y the sharehohlers at the annual incK- 
 on llie •Jlith March, ISTT. .\ preliminary ol.jec- in^;, and that vacancies should be tilled in the 
 tion was raised to the jurisdiction of the Supreme manner provided l.y by-laws which by anutiier 
 CVmrt of Caiuula to hear the appeal. \ section, a majority of the directors for the tinu; 
 
 //(/(/, 1. That the judgment of the Court ! being, was empowereil to make, but which liail 
 lielow was one from which an appeal would lie i never in fact been made. In .March, IH74, time 
 to the Sujirenie Court of Canada (Fournier, J., of the directors apjiointed one Innes a diiectcr 
 ,liss,nliii<i). t" fi'l '^ vacancy, and in .September, 1S74, a will 
 
 •> /\c Strong, Fournier and Taschereau, J J. 1 was made by four directors, one of wlioiii wiis 
 
 -That c -Jl of%7 Vic., (Acts 1«74 of N. .S.) Inncs, who seconded the resolution. 
 
 l,.,s m,i a' retrospective effect, and that the, //,/,/, that although Innes was not legally a 
 
 letters patent is.sued under the authority of that director, the call was valid, three of the .liiec- 
 
 \tt could not atlect the precedence of the : tors who made it being legally .pialitied. 
 
 (,»ueen"s Counsel appoinle.l by the Crown. 
 
 ' S. Pa- Henry, Taschereau and (iwynne, JJ. 
 
 — That the H. X. A. Act has not invested the 
 
 Legislatures of the Provinces with any control 
 
 over the appointment of t^»ucen's Counsel, and as 
 
 Her Majesty forms no part of the Provincial 
 
 Legislatures, as she does of the Dominion Par- 
 
 liimient, no Act of any such Local Legislature 
 
 can in any manner impair or affect her preroga- 
 tive right to appoint Queen's Counsel in Canada 
 
 directly or through her repre-sentative, the (iov- 
 
 ernortieneral, or vest such prerogative right in 
 
 the Lieutenant-(;overnors of the Provinces: and 
 
 that :<7 Vic, c. -20 and -21 , N. S., are nUm rin-< 
 
 and void. 
 
 4. l\r Strong ami Fournier, J J. — That as 
 
 this Court ought never, except in cases when 
 
 Hank of Linr/iool v. liiijiloiv, ;\ It. .*c C.. •-'»). 
 
 QUO ttAKKANTO. 
 1 . Relator - AMdavit - The English rule 
 
 of practice, in the Queen's IJench, rccpiiies, in 
 
 cases of qm irarvaiito, an allidavit to be tiled hy 
 
 a relator, stating that the motion is made at his 
 
 instance. 1>ut this rule was made in Mieluiel- 
 
 mas, 3 Vic. {XH'.:*)), and is not included in mir 
 
 own Practice Act (1S(W), by which oui own 
 
 practice in other respects is directed to I'.ilbAV 
 
 that of the Knglish C<mrt8 in force previous to 
 
 1 Will. IV., so that this rule does not affect us. 
 
 In IX Sjiiiin, 1 OKI., .m 
 
 this lourt ougnt nexv., ...^m- - "■— •■;-, „.,,«.iY riTY OP 4 
 
 such adjudication is indispensable to the decision j Act HALltAA, till Of, +• 
 
 of a cause, to pronounce upon the constitutional 
 
 power of a Legislature to pass a Statute, there 
 was no necessity in this case for them to express 
 an opinicm upon the validity of the Act in 
 
 (luestion. „. , . „ ^ /-. t> — - 
 
 IaXoIi- v. Ililclw, .3 S. C. R., o/o. 
 
 2. (tueen's Counsel - Precedence of — 
 
 R. having been appointed a (Queen's Counsel 
 under a commission from the (iovernor-tieneral 
 of Canada, his precedence was (lueationed by W., 
 who was his senior at the bar of Nova Scotia, 
 but held no appointment as Queen's Counsel 
 
 2. Rule nisi for- It Is a fatal objection to 
 
 a rule ?t!.<s for a quo irarranfo that no gmiimls 
 
 are set out. 
 
 J a re John Boinr, 2 R.-& <i., .'M'J: 
 Jie Hoii-K Estate, 2 C. L. T., 9''. 
 
 RAILWAYS. 
 1. Crossing-Injury to employees by loco- 
 
 motive— While plaintiff was passing over the 
 
'•^^ RAILWAYS. 1150 
 
 tia.knf.lu. n.ilvvuy<.|K.nitt..Iinc..niKrtion with ,U.l,.n,lant C.nii.iiny cuM uut iv.oit to the 
 ,Uftn,l,.ni .s nuia.« \w was kiiockf.l ,l„wn l.y a pr..visi,„i.s „f ca]). 7(t, K. S. (.Snl sorii's) u, 
 l„..,in..tive an.l c.ipple.l f„r litV. Ai the ,,.,i„t a.,|Mi,e land ncccHHa.y for tlinr milr-.a.l,' l,ut 
 «hm. plaintili was iMJiin.,1 Uuto weiv tour must ..l.tain it un.lcMh.. l;Uh an.lUth M.,ti..i,.s 
 tnuks, ,ncIu,liMgs,.lingsl.elwv,.ntlii.w..iknR.ns .,f tlioir .,wn Act, nn.l,..' which they w.mv >x- 
 l„.>,M.san,lth.-w.;.k,swhi,h.heuu.<,Wf,e..l.lipMl ,,„i,.tMl t.. teiuUT or pay the appiai....! value 
 t., cK.ss twice a .lay, au.I over which ciiil.lren l.cfoiv lieiMg cntitlc.l t.. p<,sscs.si.,n 
 tminciitly cn.HHe.l to carry f.KMlt<.mcu working //,/,/, that the |,rnvisio„.s i„ the Act incr- 
 m the pit. The cr...ssiug had l.een so used for poraling the Con.pauy (sees. i:<, 14, etc.) relate.l 
 s.xtnn years, and at the time of the acci,leut to the ohtaining of lan.l for the mining opera 
 was nscd a.s a road for horses an,l carts. The tjons conten.plaled l.y their Act, l.ut that for 
 c..,M>Mo„ practice was to l.low a whistle when ,1,,. purpose of ol.taining land f.,r the line .,f 
 .nviMcs were moving al.ont. l.ut on this occasion railway an,l stations, which was a matter of 
 .,„ whistle wa.sldown. and the view of the track pul.lic interest, they could resort to the pro- 
 was olistrucled l.y some l.ox car.s which had l.een visions .,t cap. 7(», i:. S. Chd series,, that no 
 kit standing up<.n a si.ling close to it. The in- inference against this view could l,e .Irawi, lr.,m 
 ^um p ain.Kl passed the l.ox cars he Was warned Uie fact that see. '2i of cap. 7(., making a certain 
 .t h.s.angei hut he was .struck l,y the engine class of .lamages a county charge, was indude.l 
 l,cl.,,e he Kul time to escape. ,,,„..„^, „,^, ,.,^.,,j,^^„i ^^,^.,i„„^_ ,^^ ^,^^^^ ^^._,^.,^^^ ^,.^, 
 
 //./,/, that the damage was the .lirect result not refer lo lan.ls required for the track and 
 ol the negligence of the servants of defendant stations, which were made a county charge l.y 
 cnipaiiy tor which the c.mpany was liaKle, sec. .VJ and following sees, of cap. 7(. not included 
 and tiiat there was no evidence of negligence on ,^,„„„g ,1,^ cxcei.te.l sections. 
 
 ilic i.iut of the plaintitr. v v <;./) , i.- ) ,■ /. .,., rr ■■ ■ 
 
 ,' , , , , „. A. S. Sail i\- h.ci>l(,mln,ji I'n. y. fit, Hahiax 
 
 ,, ,, I, .,,., ,. . , , ,, , i unit tail' I,, -I lull I! 1/ d- Coci/ Co., 
 
 ',1. 1.. 1>., I'l.} di.stinguished. \ enlict for phiiii- ,, ,. ,, „.. 
 
 . ,r . . , ' l\. r,. 1)., lit).). 
 
 till sustained. 
 
 Kn'ii v. 77,. Iiii-rro/oiiini Coal Miiiiiiii Co., 5J. I)amiii;es -- Costs Of rc - apprai-sciiiciU 
 
 ti R. ct <;., L>-.>0; ti C. L. v., 44t;. of land-Acts 1878, c. 35-(oiiiinissioners were 
 
 , „ ajipoiiited under c. .T., .\cls of 1S7.S, k. re- 
 
 i. Maniages -Appraisement of -The dC- appraise lands taken t..r railway purposes in 
 
 leiidaiit tompany was incrporate-l l.y cap. 74 I )igl,y County and it was provided l.y the \ct 
 
 '.1 the Acts (.f KS7<i, .see. I.S ..f which j.n.vided that the re-appraisement, •' f.gether with the 
 
 taat whenever tl should l.e necessary f<.r the costs heret..fore incurred " should l.e a county 
 
 cdiisiriiction, &o.,of the Comiiany's w(.rks, &c., charge. 
 
 tiiat the C.mpany should l.e invested with any ///,/, n.at the c.sts for .services l,ef..re tile 
 
 lands, and n.. agreement cml.l l.e made for tiie (•..mmissh.ners for re-appraisement could not he 
 
 innciiase therec.f, the Company might apply l.y taxe.l, as the Act provide.l only for those incurred 
 
 petition to a Judge of the .Supreme (ourt, who, pn,,,. to its passing. 
 
 It satisfied that the lands were necessary, should y,, ,., \y,,„,„ Coniifi. v /tailira,,. 
 
 le 
 
 .Urtct an appraisement ; an.l l.y sec. 14 it was ,., /,,,,/, Har,hj, I H. .t (;".,' 17(i. 
 
 provi.Ied that on payment or tender (.f the coni- 
 
 peiisuti(.n awarded, the lan.l should vest in the 4. Dama|;es for breach Of COIItrart tO 
 I'lnipaiiy with right (.f immediate pos.session. construct- Pleading — Impossibility— I'lanitiir 
 ll.v tile thirty-sixth secti(.n tlie i.rovisions of set <.ut in his declaration an agreement heiweeii 
 lap. 70, H. S. (;}rd series), were made applieal.le one Harry Abbott and the (iovernnient of X(.va 
 to tlie line or lines of railway to l.e l.uilt l.y the Scotia for thee(.nstruction and eijuipnient of the 
 tfnnpany, "as far as the same may l.e appli- s(.-called Eastern Kxteiision Railway from Xew 
 liible," certain sections of said chapter 70 being (ilasgow to the .Strait of Canso, a traiusfer of 
 excepted, among which was section 24. The 1 1th Abbott's interest in saiil contract to the Halifax 
 secti(,n ..f this chapter authorized this Ct.mpany \ and Cape Hreton Railway and Coal Company, 
 to lake possession of lands recjuired for the a contract between the company last mentioned 
 tiack of railways, or for stations, and under those and the Canada Improvement Cc.mpany by which 
 prdvisions the defendant Cc.mpany entered upon the latter were to construct and equip the road, 
 antl took p(.sses8ion of laiul of the plaintiff' and a eontiwt between said Cana.la linpn.yement 
 Company (incorporated in ISOfi), (.n wliich bor- Cr.mpany and the plaintitf', under which the 
 mgs for salt had been nuule, and buildings plaintiff was to construct and e.iuip the road, re- 
 erected with machinery, etc. Plaintiffs obtained ceiving, as the wt.rk pn.gressed, payment in cash 
 a rule ((,■,,(■ for injunction, claiming that the , and bonds of the Halifax and Cape Hreton Rail- 
 
1151 HAILWAYS ll.-)2 
 
 Wiiy iilliH 'iiiil Coliili.mj-, as ill till' iiijrccliMliI M'l iniiililiDii \>,is violilcil, 'I'lir Cinill, liaviiii; 
 
 fciitli. 'riuMlcvliir.ilioii llioii Ncl out ii Miii's of |iiiwt'i' iiikUm tlit; iiili' to ilclfiiniiu' tlif fuct, 
 
 liiiiisiict JOHN, incliiiliii;^ 11 suit liy llu' plaiiililV to t'oiiliil tliiit the |iliuiititl ".s vriNioii of tlii' ii'^ici'- 
 
 iciiivcr (liiiiiagfM for iillc^fd liruiiuli ot tin: HKife- iiu'iit to ii.ssigii wiix mistiiiiu'il liy the f\ iilciiif, 
 
 iiicii* iiiiidc liy liiiii fill- llif i-oiistiiictioii of the and j,;iivc jiKl^jMuMit for llu- plaintiH', iiddiim- 
 
 roiiil, mil H liiiul loiiiproiiiisu ami .sfttli'inriit fill- under liic power j.'ivi'ii in tlie rule lo incruuH- 
 
 liiiclic'l II the agiffiiicnt upon wliiili till- presi'iit the verdiil interest from tiie date of tlir 
 
 aelioli was l)ri)ii;,'lit. liy tills ajiieeiiieiil tlie n;,'reemenl lielweeii (h'feiidants and tlie ( Joviin 
 
 Caniida Impiovuiiieiit Conipaiiy eonliaitedlode lit, uliirli lesiilled in llie ie>,'islatioii umlii 
 
 liver to plaintiir, MO soon as tiie sameeoiiii) h';,'aiiy w iiieli it heeaine iiiipos.silile to |)erforiM llif 
 
 lie issued (to whiih end tile tworoiiipanies, Imtli loveiiant to deliver the liomls. 
 
 lieiiiU parlies to tlie agreement and ih'feiidaiit.s (/nynri/ v. '/'/n Ilti/ijiu: ami C'ti/ir /liulm, 
 
 in tile aiiioii, i oveiianted to use eveiy dili- h'td/iruj/ ami Con/ Co. i > til., 4 K. iV < i., Ilili 
 
 geiiee),eiglity tlioii.sand dollars in good, Millieieiit Allinned on appeal to the Siijirenie Couil nt 
 
 and availalilelirst mortgage lioiids of said Halifax Ciinada, /',//( Fil'iiary, ISS.'i. I'as. Digest, i:i4 
 
 and Cape llretoli Hallway and ( oal Coliipaiiy, Leave to ajipcal to the .liidicial Co Itleeut 
 
 whieliMliotildliea first lien on the I'ietoii l!raiieh, die privy Coiiniil refused, Ain-il :h-il, ISSi;. 
 — to lie lianded over Ky i]\v Uoniiiiioii (loverii- 
 
 meiil in aidof theeonstriietl mi the Kastern ■;. HailiaKOS — lilllbllll}' Of U inilllU-i|liliit) 
 
 I'Aieiislon, and also oil the said Hallliix and to pay damages on account of a railway niii- 
 Cape I'.retoii jJailway and Coal Company, and ning wholly through another municipality in 
 the property nieiiiioiied In the Company '.s Aet of the Hanie county Construction of chajiter 70, 
 iiieoiporalioii. The Halifax and Cape llreloii R. S. (3rd series) -Lands for stations and i hmI- 
 Railway and Coal Company also eoveiiaiited for «ay for the Ivisteiii Kxteiision Railway wen- 
 thehaiiding o\er of said honds liy the Canada expropriated under the provisions of ehaplii T'l. 
 Impiovement Company at the time and manner of ||ie Itcvised Stat mes (.'iid series), whiehueic 
 ami of the cliarai'li'i' and description sllpulaled. made appliralile liy chapter 74, of the Acts uf 
 'i'lie agreement conlaiiieil covenants and coiidl- |s7(). ( 'liaptci 7ll proxldi'd, among ol her ihiniis, 
 tioiis on the part of plaintlll'as to the |ierform for the expropriation of lands for railway |iiir- 
 aiiee e' w lili'h there was no dispute. The poses and for compeiisal Ion to the owners tlnirnf, 
 hreaclies alleged were that the defendants fa'led tiieamount payaliie for luilldiiigs destroyed. I iinl- 
 to delivei till' lionds as stipulated, that they ilid taken, etc. Iielng made a eoiiiily charge. Sir- 
 not use due diligeiiei: as stliuilated, and that they |ioiir)4 provided that the ( 'iistos of the cniinty 
 had entered into agreements and sought and pro- should deliver to each party a eertillcale of llic 
 cured legislation which rendered it iiiipossilile aiii'iuiit to wlilcli such party was eiitil led lunli-i 
 fill- iheiii to hand over lionds of the cliai cter t he a|ipraisemeiit , which should autlimi/i' sii'li 
 slipulated. defendants relied on one of the party to receivi' I he ■iiiiouiit with interest, ainl 
 •Statutes so procured, namely, the .Act of the which should lie a charge upon the eoiiiily f"! 
 Legislaliiif of \o\a, Scot i,-i, cap. (i(i ot I.S7!'. all tlii' moneys payable thercuiidci' until fully 
 
 //ilil, that the Aet all'orded no defi'iiee to the discharged. Section ">.") pro\ldeil tliil tin- 
 
 ]ilaliitill"s action for damages for the iion-fiillll- damages appraised and estalillshed .slmnlil lie 
 
 iiieiil of the agret'inciit. ,ipport loued Ky the .Sessions amongst tlict'AMi- 
 
 .\flcr pleading to the declarat loll, defendants >hlps. disti icts and plai'es in each county ami 
 
 added pleas as to one-half the amount if the iHstriet, and that the proportion of each t'i«ii 
 
 iiioi tgage lioiids claimed, setting out. Ill dl I'ereiit slii|i, district and place, should lie assessed iiiinii 
 
 forms, that plaint 111' had assigned the same to the their inhaliilanls, and should he levied ami i"! 
 
 ( iovcrnnicnl of No\a .Scotia, and given Hon, I', Iccieil and paid ovei' on the same prliici|ili' ;i- 
 
 C, Hill, then I'rovinclal Secretary, aulliorlly to county rates, 
 
 leeiive them, and that the Canada luiprov eiiieiit My chapter •_'!!, of the .-Vets of IS-ld, (he Tnui 
 
 Conipaliy had aceejited the order and liecome sliiji of St. .Mary's was set oil' out of the Ceiiiiiy 
 
 liound to deliver said lionds to the (ioverniiient of ( liiyslioro as a separate and distiiiit scssiniii! 
 
 of NovaScolia, and that thesiiit was not hroiight ilisli let, and liy chapter I of the .Acts of \\\'. 
 
 on liehalf of the salii ( oivernnieiit, or with their the district of St. Mary's, and the rein liiiin:' 
 
 consent. I'laintitl' replied, denying the fact of part of the County of ( iuyslioro, weie |iliiiril 
 
 the iissigiiment, alleging that there was no eon- under separate Municipal Coiineils, ainl "in 
 
 sideralion, and that the assigniiHMir was made known as the .Municipalities of ( liiyslioni aiii 
 
 sulijecl to a eoiidition that there should he no St. .Mary's. 
 
 legislation by the Legislature of Nova Scotia; 'I'lie lauds approjiriated for the luirpox'." »' 
 
 adverse to the iinerests of the plaintiff, which the Kastern K.xtension Railway lay wlinlly i" 
 
"'•■^ RAILWAYS. ll.H 
 
 III.' MMriiripality uf ( luy.sl.nr.,, ,u„l the .laliiiigf.H //,/,/, /,n-lhn; tliat lli.. oLjoiticii, lliil pUni 
 
 Hri.;ip|,nuM.Mlai„l|.iii.lt..||i,. |,n,,,rielnrs..f ihu iii.,1 .Mp,.,ili,itti,„i.s «,.,.• n..l .'hi tilr iis r,.,|uiir.| 
 
 Im.ls tiikeii, liy ni.siiis ,,hii: H»:s.'.-.siu.-iit iiiipc.^iMl |,y «,.,tiun 47 ..t cliaptur 7(», wlini tlio Mnl.T 
 
 l.y ilml Muniiipality iipnii tlir riUtpayris rvsi- piLssnl, even if it coul.l l.e nu.iu.l l.y I lu: p.iiti.M 
 
 '''"' ""'"" 'I- '"'•" ''ii«'^ "<•'■'■ tl'i'" ti^k''" I" wlin.se IiumI.s ha.l lifrri .sei/f.1, n.ul(rn..l I,,. ImIumi 
 
 .nllrrt frnrii Ihr M i.uicipality of Si. Mary's ,i l,y th.. Cnunty iiutliuritk... al wli,,.s.,. in.^taiir.. 
 
 '""I""""" "*' ""■ "'•""•W« •■"• I'^'i'l. |.ro,. in-s l,a,| I„.,.m taken, an,l timt tlu, .sainu 
 
 //•/'/, lliiU tin; inhaUitaiits .,f the plaiiililV pi iii.iplc appli..,l t.. llic coMtfiitiun timt the A.'l 
 
 Miiiii. ipality, l,y ivason nf iii,.ir l„.ii.g iniml... cnnleiiiplut.;.! ,,„lv om- appiai.si.iiioiit, ami tlmt 
 
 tun. of tl... Cmnty of ( ii.y.sl.oio, wcu lial,!.. to all tl>,. plans an,l .sprcilirations for tlir « holr 
 
 III' a-s(.'N.sr,l in ctMiiiMon Willi ilu; otlirr inlial.i- lin.' nm>l I,.. III,., I l.ifoi,. 1 1,,. oi,I,t. 
 
 I.mts of the County for tli.. payment ,.f tl„- l„n Xhm,,.,- n,„l Mlnni,.- I!,,;!,,-.,,/, 
 
 il.ii.i 
 
 -.)! 
 
 1 
 
 i:i'.,'t's, liul that tlicie was no lialiilitv to n ■ .i |> .. , 
 
 tiiiMl to the plaintill Miiniijpality any portion IC | -j' -|,- 
 
 i.t tlie aiMonnt ailvancecl l,y thai Mnnieipality, , 
 'I'll' M iliiii-ijitililif i,l' llmi^liiiiii \. 'till Miiiii. 
 
 r'iii„r,i,, 'ufsi. M,iri,\, 7 K. \ (;., i.ii ; ^' "i"**' '»"«•'* lilabilKj of W. ii .1. |{. 
 
 -,■ I ■!. ' |-.j' t^'o. to help niiiintiiin Act.s 18(i8, <•. 24-4th 
 
 " '" Kev. StiiU, e. 21, .s. 16; cf. 5tli Huv. Stats., L-. 
 
 fi. Dniliagl'H '2(> Vic, «'. I.'{, X. S. - Jury ^^' '^^ -'^ •I'^'i l^ev. stats., c. 40, .s. 15, Hiimu as 
 
 iisse.isilig oil wroiiij principle Where a paity •''^'' ^"^'- ^tats., c. 42, s. l.'i— I'ndei Acts IstiS, 
 
 iiiuiiii,' aparol lie.nse to cMit t rees, appeiileil from *-■■ -■*' -^- '^•' ""' ^^'inllso| \ Annapolis Kailua) 
 
 ilie appraisement maile nnilei- the .U.t, '_'(• X'ici.. '"nipaiiy are lialile to hu assessed for the main- 
 
 1.111. I.'{, to authorize assessnjents for railway '''"i'Hce of the dyke proteelin^' the mai'sh over 
 
 iliUiiages, and a JLuy on that appeal assessed "''i'li the track of their road passes, owned hy 
 
 iLiniages on a wiipuj,' priiiLiple, them, section 111 of chapter '_'!, Itll Rev. Stats., 
 
 Idlil, that the Court would set aside the ver- ''I'l'L^ '">- '"I'y to Comity as.su.s.sineiits ; and re 
 
 ilict on the ^'round of excessive damages haviiJ:; '"i"^'' "eed not lie had to the land itself under 
 
 hiiii },'iven. section l."> of chapter 4lt, 4th itev. .Stals., .as that 
 
 /'■'"<■'// V. 77(1 Coiiiifi/ III' //ii/i/iiy^ -J 'ilviin., i\'2. ■■^'■''i"" lefers only to the original construction 
 
 ot the dyke where the owner has not consenteil. 
 
 I. UaiUaKV.S->'tr(l It. S., l'« 10, N,S. 14 ,11) A'/-o"Vi v. Wimhui- ^ Ainmimlis Hi, ;/„■„, j Cn., 
 
 Ohjections to as.se.s.smeiit -'('lie Aot ineorpora- - l^- ''^ C., 4:{i» ; 
 
 ims the company for the eonstrtictioii of the -('■ I... 'I'., -111.'. 
 Niitaiix and Atlantic Railway provided that 
 
 till- laud re(iuired for the load, .tc, should lie ». GOVCrilinCIlt KailHiiyS Aft .t«'ts iHSl, 
 
 tiirni:.hed gratis to the company, who were c. 25, H. 109, Dom. 'i'he Kominion I .ov.'rnnient 
 
 .iiitli'irized toexerci.se all the powers nece.s.sary Uailw.iys Act, Acts of I.SSl, c. •_'.'), s. IIHt, pro- 
 
 tiilncatiiig and completing the railway; and vides that " Xo action shall lie liroughl against 
 
 liiiM.,ii,p;uiy was empowered to Imild the loa.l any otiicer, employee or servant of the depart- 
 
 "uii.ler the powers, authorities and provisions nient (of P.ailways and Canals) foranything done 
 
 lit this Act," (the Act of Incorporation) ",ind liy virtue of his otlice, .service or employment, 
 
 iil>ii 'if chapter 70, K. S. , .Srd .series, ' Of I'rovin- except uilhiii three niontlis after the act com- 
 
 luiHioverninenl Railways,' .so far as the .same milled, and u|)on one month's previous notice 
 
 i^iiiill he applicalile to such railway." in writing." 
 
 ^ //•/'/, that although .sections 44 to .■)!» of chap. iKfendants entered into a coiitrael with the 
 
 I'l. luiividing tor appraisement of the lands Clown, represented l.y the Minister of Railways 
 
 1'ki.u, and a.s.se.s»ment of the County, were not and Canals, for the construction of a l.ranch of 
 
 '\|iiessly emhodied in the A.t of Incorporation, the Intercolonial Railway at Dartiiioutli, N. S., 
 
 lliiy Were availal.le for the piiriiose of making .mil in the prosecution of their work under the 
 
 llii' ii|)prai.semeiit and as.se.ssmeiil. contract entered upon the plaiiitiU"s land. 
 
 Il^lil, Jnrllur, that the olijection, that the An action having l)cen hroiight against defenil- 
 
 ■'|i|'l"-''ti.,ii for a jury was made to, and the ants for lireaking and entering, 
 
 •"'111' granted liy, the Court on circuit instead //</./, that defendants were emplojees within 
 
 "tii'liidgeof the Court, and the ohjection that the meaning of the Act, and entitleifto the pro- 
 
 llic iv/«oi was not tiled within thirty days, were lection given therein. 
 
 "I'viiitiMl l,y section .V.' of chapter 70, provhling McDonald, C. .1., i/lMsinfhi./. 
 
 'Ii'it iMuceedings should not he set aside upon Kkuiihi v. Oah •* ' > nl., •>{) S S R 
 
 ''"y...m.leclmicality. , (S K. & u!'), ao. 
 
1155 
 
 RAILWAYS. 
 
 11. ■)6 
 
 10. Injunction Crown cannot be sued or highway, uu.l .piuj nf th.' imuK' wns kiih.l i.yn 
 
 enjoined riiiintitl's s(iii;;ht to fiijuiii tlif ilf- iiassint,' train. 
 
 fiMi.iaiit.s fn.iii sfUing the n.a.l-lKMl, ngiit of way, ll<ld ( i). Tiiat thf daiisf of the .\.t (l;,u|. 
 
 rails, sli'i'piTs, ligiits, i.rivilogeH and fiaiichlM^.s way Ai't |SS((), i(M|uiiiiig guards at cicsmi^,, 
 
 .uiiia'ctc-d with a liiif of railway iK-twetii Oxford coidd not hu construed I.. rtMidfr th.' n.ni|,,iiiy 
 
 and New (llasgow, itf., and to si't asidi'ai'on- liahlc to owners of .attle unhiwfully on iIr. 
 
 veyance in trust made for that imriiose. highway. 
 
 it iijipeariug that tiie Crown was tlie iirimi- , C-'l. Tliat the damage not having heen .lui,,. 
 
 l)al party interested in tiie eonveyiinfc Hoiiglil at the point of interseetion, plaint i(T wa- not 
 
 to hedeelau-.l void, and tiial the nijnneti.in was ahsolutely preeluded from recovering, hut u,i> 
 
 virtually against the Crown, snhjeeted to tlie onus of sliowing tiial defeh.l,.m 
 
 //./'/, that ol.jeetions taken to tiie. juri-sdietion might, with the exeivise of ordinary care aii.l 
 
 of the Court on the grounds that the Crown was diligenee, have avoided the miseliief, ami hiuiiiL' 
 
 not liahle to he sued or re^traiiu'd l.y injunction, faile.l to do s,., the verdiet in his favor eouM iini 
 and that plaiiitiUs" remedy was l.y petition of , stand. 
 
 right, ami not otherwisie, must prevail. 
 Th Moiilritil mill Eiiro/iiait Sho)' Lim 
 
 lUiiliritij Co. <i id. V. Shiriirl il ii/., 
 
 •.'(»X. S. R., (S l\. k {■'.), 11.'). 
 
 11. Injunction sought to restrain parties 
 
 from applying for legi.slation — I'laintill' claimed 
 to he entitled to .'*S<>,(MM) lionds on the Kastern 
 Kxtension Hailway, to he secured niion the 
 rietou Uranch Road in the event of its heing 
 transferred to the defendant eoinitany as a suh- 
 vention in aid of the construction of Kastern 
 Kxtension. The defendants >vere applying for 
 legislation which shouhl |)rovide that in the 
 event of the roa<l not heing operated to the satis- 
 faction of the (iovernor-in-Couneil of the Pro- 
 vince, it should hecome the iiroperty of the 
 
 Whiimuii v. ir. il'-l. Ji'iti/irii!/ Coni/i'iin/. 
 
 (i H. ct«;.,-j:i. 
 
 13. Liability for negligence- Riglit ol 
 
 railways to restrict their liability - In iln' 
 ahsence of legislative enactments of a restiaiiiing 
 character, a railway orsteam-hoat cmnpany iimy 
 impose such terms upon the public as to extiiiin 
 the company from iesi)onsil>ilily for injury lum- 
 ever caused, including, therefore, gross iicgli- 
 geiiee, and even fraud or dishonesty on the pari 
 of their servants. 
 
 Doil'iOH v. Tht llmii'/ Tniid- It'y. Co., 
 j 2 X. S. ])., m. 
 
 14. local Legislature- »I Vic, c. 104- 
 
 I'rovince free from incumbrance. Plaintiff, eon- Bankruptcy and insolvency - Plaintitls lui.i 
 ten.ling that this would invalidate his bonds and security on an undertaking of the defend.uit 
 wi..s a lireach of a compromise made with him, company, future calls on shares and all tolls 
 sought to restrain the defendants from applying and money arising from the undertaking, toi 
 for such legislation. OKt.tKJCJ as a first lien. Messrs. Rohtrl*. 
 
 Hihl, thai,a.s the purpose of the concession Lubbuek & Co., an Knglish firm, hada lieiK.ntlk' 
 was to secure the construction and c.mtinued rolling stock for i;2.^(XK», and there wcical«.ut 
 operation of the road, and the proposed legisla- CTO.fKK) .lue to unsecured creditors. DettM 
 tion containe.1 a proviso that the trustees of the ' dants, under c. 104 of the Acts of 1«,4, ot tl.f 
 b<.ndholders shouhl have notice before any for- , Legislature of Nova Scotia, intituled -'An .Vl 
 feiture of the road, that was all that they had to facilitate arrangements between Kail«-iij 
 a right to expect, and the plaintiff was not en- Companies and their creditors,^' (see Acts lS,o, 
 titled to the injunction prayed f..r. page 1), Hied a sche.ne, whereby preferential 
 
 Ureiiory v. Canada Im,,rorun,nt Co. ,t at. , stock to the extent of i;7r.,0<X) was to be ci eatf.l, 
 
 R. E. U, 358. ' to be a first charge on both the undertaking, 
 i calls, tolls, &c., and the rolling-stock, and tins. 
 12. Liability for defective condition of or the money coming from it, was to be appla<i 
 cattle guard at intersection of railway to the payment in full of Messrs. Kdlwts, 
 with highway — Cattle unlawfully on high- Lubbuck & Co., ami certain unseciired dtlit* 
 way— Onus of showing negligence in such specified; stock to the extent of t;r)O,0(KJ was 
 case on owner of cattle — Railway Act of then to be created, to be a sidiseqnent cluugiHiu 
 1880— Plaintiflf's cattle were turned out upon the the undertaking, c!kc.,aud rolling-stock, and « as 
 public highway for the purpose of being driven to be issued at par to the existing debenture 
 to pasture, and while there unattended, got upon holders in lieu of the debentures they then litM. 
 defendant company's line of railway in oonse- which were to be delivered up to be caiicelki 
 (juence of the defective condition of the cattle Plaintiffs obtained an order for the appointnidit 
 guard at the intersection of the railway with the ; of a receiver, which defendants obtained a mlf 
 
157 
 
 RAILWAYS. 
 
 1158 
 
 in^l to ir«i'iii.l. Tl.f lomt, o,ii»i.l.iing ihat iliu AuMH|»,li,s l!iiilw„y is ,i I'loviiuiiil Hiiihviiy with- 
 
 ait was ii//m rins, ii« it ili'iiit with tiii' siilijcct in tliu riit;uniiig ot ilmptor 4.'), Kevisud Stiitiitea 
 
 nl iiiM,lv«iuy, iiikI fiirtiiiT, tliiii tiie ncIiuiiiu tiltMl (.'liil mtIl'sI, "Of tVumty Assi'ssincnts," Mfc, 1({, 
 
 was iiiiiciisiniiilplc, am its dlijuct wiis to suciiru mid i.s exeinpt fniiii ii.sisi'.ssiiiiiit im<U'i' tlif Aft. 
 
 MtliiT ciiilitdiHiit tlii'f\|)eiisc of (lcli(iitiiif iiojd- 'I'lii' tiiii' test (if cxfiiiiit ion ik'|)fiiil.s tt|M.ii tile 
 
 ers liavini.' a first lifii, (liscjiaiyi'il tlic ink' nisi fai't, wlicllii'i' tlit- mad i.s or is not a portion of 
 
 to Kojinl l.ut, in view of tliu possiltlu rfvirsal tiic I'roviiKial Hailway. 
 
 ol till' jinliiinfiit on appoaj, oti'ired to modify t lie '/'//' Coiiii/i/ <,/ Anii't/io/is v. Tic H'iiiil->or d- 
 
 (initr appoiiiliii^; tiie receiver, l.y direeliiig liini 
 to pay tlieaniomit to lie received to the Heceiver- 
 (iiiicial, to aliide the further order of tiieCourt. 
 Miii-'/'it-h V. Wiii'lior ,1- AiiiKijJo/lx liuihray 
 
 Co/ii/xon/, H, K. I)., \:\~ ; 
 
 Aiiuii/iii/ii /I'lti/imi/ Co., •_> X. ,S. D., .•i<J7. 
 
 18. Kallway .lets of Nova Scotia - KaiN 
 
 way, appraisement of lands for Order lo set 
 .•J Cart., aO(S. ''^''''''* P™i-'««ding8 -Estoppel -Judgment not 
 appealable— This was an application to the 
 Siijiruiiie Court of Xova Scotia, asking it to set 
 asiile, in a suniniary niannei, the whole appraise- 
 iiii'iil of land damages awarded to he paid hy 
 the County to the several jiroprietors of lands 
 in I'ictou County, wlioselantls hud liecn expro- 
 priated for the line of railway extending from 
 Xewtdasgow, in I'ictoii County, to the Strait 
 of Canso, and known as the Kasterii Kxteiision. 
 This apiiraisenieiit was niailc on the assumption 
 that under the contfiict with the Xova Scotia 
 (Jovernment for the eonstruclion of this line of 
 railway, and the .Statutes relating tliereto, and 
 providing for theexjiroitriationof lands for rii;lit 
 < if way, &c., appraisement of damages or com- 
 pensation to the proprietors, and payment 
 thereof, the right of way was furnished to the 
 comjiany free, and the compensation for land 
 damages was to be paiil after appiaiseinent in 
 tile manner prescribed, by the Custos of the 
 vaiious Counties through which the line ran, 
 issuing debentures for tlie amounts due to the 
 proprietors, which debentm-es were to be le- 
 deeined by means of local taxation. 
 10. Xegligence— Conveyance of persons Before the I'lovincial (iovernment of Xova 
 -Injuries— I'laintitF, a passenger travelling by Scotia had entered int(j the contract for the con- 
 tlii' \\ iiidsor * Annapolis Railway from Anna- struction of the Kastern Extension line, and 
 liiilia to Richmond, fell while alighting from the while they were negotiating therefor, the Xova 
 iniiii at the latter place, and sustained injuries, Scotia Legislature, on the 4th April, ISTO, 
 to recover damages for which he brought an passed c. 3 of the Acts of 1876, to enable the 
 iictinii against tiie Company, cluirging them (!overnment to enter into a contract for the 
 with negligence in respect to the lighting of the construction of this line of railway, and made 
 station and the provision of safe means of transit provision thereby for the payment of a subsidy 
 "f passengers from the cars to the platform, and grants of land to those undertaking it, and 
 The evidence on these points being contradic- for the expropriation of land for the right of 
 '"ry, and the jury having found for the defend- way for the line. 
 
 Mt, the Court refused to disturb their verdict, i On the same date, c. 74 of the Acts of 1876 
 t'linria V. ll'imlior li; Annapolix IVy Co., was passed, and, in order to incorporate and 
 
 3 N. S. 1)., 493. j give any contractors wliose tender for construc- 
 
 Sec also riRRirRS I *'"" ''"'"''* thereafter be accepted the same 
 
 . , VAnnicna. corporate powers and jirivileges as those men- 
 
 : tioned in c. 74, e. 4 of the Acts of 1876 was 
 
 ii. Provincial Railways exempt from passed. 
 
 assessment -3rd Rev. Stats., c. 45, s. 16; cf. \ By sec. 36 of c. 74, and also by sec. 6 of c. .3, 
 3tli Rev. Stats., c. 58, s. 5 — The Windsor & of the Acts of 1876, certain sections of c. 70 of 
 
 IJ. local legislature »I Vic, c. 104- 
 
 riiilcr the provisions of an Act of the Legis- 
 lature of Xova Scotia '"to fai'ilitale arrange- 
 inciits between Hailway Companies and tiieir 
 iicditors." the Windsor and Annajiolis Hailway 
 Coiiipany projiosed an arrangement whereby 
 llie so-called H delientuie stock of the Company, 
 tliiii bearing interest at the rate of (i [ler cert., 
 «as '• abrogated and determined," and in lieu 
 laereof the holders of said stock were to receive 
 allotijiciits of new stocks thereby created, bear- 
 iiii; lower rates of interest, and otherwise dirt'- 
 ciiiig from the stock for which tliey were sub- 
 stitiiteil. 
 
 H<ld, Weatherbe, .J., ({/'.■isKiitiiii/, that so much 
 "I the Act as was necessary to the confirmation 
 lit the proposed scheme, was witliin the legis- 
 huivc authority of the Legislature of Xi>va 
 >ciitia. 
 
 /."' Ii7/((^y;- ,0 Aiind/io/is A''//, 4 R. (fc (i., •,U'2 ; 
 
 3 Cart., 387. 
 
11.-)!) RAILWAYS. II 00 
 
 Hl'il K. S,, iiic iiiriii|Miriiti'il ill thi'.-iL' I'liikctiucnt.'* in IsT'.l, on tiif urmiii'l lliat tlu' Halifiix aiiil 
 unci iiiiiilu ii|(|ilii'iiliU' til llii.-> liiii' of niilwiiy, ( apu liri'ton Knilway ainl ( uaH iiiiipiuiy had im 
 wliiili Houtiiiiis iiniii' pal'tiiiilaily rolato Id tin' legal tAistfiiif. Attt/i' tlic iiigiiiiH'iii nf tliiii 
 iixiclu i»f uci|uiiiiig lands fur tlit- right <if way, rule, luid liutDiu jiidj;nit'nt, chapti'ii* (Iti ainl 'u 
 «tatii(ii», Sic, tlu' idKti'iliire for appiaiMiiig dam- of tin; Arts of ISTIt wvrv paxsfd ]>y thi' Lr^jisjii. 
 n^fs. and ihu liiodf of asscs.iiiij,' tiie \alinii.s tiili' of Nova Suotia. After licai'ili},' the ( uslcm 
 ('oiintieMfortliepaynieiitdf tlieaiiiountsiiwiirded. of the Coiinly \>y eoiiii.iel liefore a Loniiiiitlii' of 
 C. 70 of :trd It. S. e.mipri.ses in eonsolidated ''"-' Legi-slatnie, two .■^eetioiis of the A.I were 
 form all ena.tnieiits in foreo in N-iva .Srotia at i"''!*^^"' '" '''i' i'Ufix'Ht of the Counly. 
 that date, relatinj,' lo I'rovineial Itailways. For ''''i^' Supreine Cmrt of Nova S.^otia h,/,l tint 
 convonienuf, the various railway eonipanies in the Coiinty of I'icton was oMopped hy tlifse 
 Nova Scotia, siieli us the Wiiid-sor una Annapolis Statutes |,,si mentioned from disputing the up. 
 Hallway CoMipany, the Wc.nern Counlies Kail- pmiseiiient of the lan.ls taken, and l,y tiie i>Mu. 
 vay Company (<"-. e. ;U, A.Ms of IMI.S; e. SI, ..f .leUeiitures l.y the County to parties t.) wimm 
 A'As of JSTII), have.in ..l.taiiiiiig iheir Aets of .lama-es In.lI.een awar.le.l f..r the laii.K appn. 
 ln...rp..iati.m, availe.i themselves of similar pi iate.l t.. the railway, .s.miu of which ha.l l.eoii 
 elauses fr.mi .-. T'l ..f :ir.l U.S., l.y exjiress enaet • in.l.Plse.l to third J.arties. 
 inent. without repeating them "in tiie A.t ..r /" '■ f"'"" llx^hnui Dmnn.,^, 
 
 jirovi.ling .itiier m.iihinery for the expropriati.in ''• '^ ''• ^'''' 
 
 of lan.ls an.l the aseertaining of laml tlamages. ^^^^ „^,^„„/ /„ H,. S,ii„;m> (uiiri nf fm.n.l;, 
 
 When tlie 4tli series of tiie l!ev. Stats, was ^ij^ ,|^,^, ,l_^, j,,,!^,,,,,.,,, ,,f tj,,. (outl h-Lm 
 j.repare.l, certain Acts of the I'rovinee n..t re- ^^..^^ ,|,,^ ,„,^. f,.,,,,, „,|,j,,|| ,^„ ,^|,|„.,,| „,,„i,| [j,,^ 
 enacted were continue.l in torce, and am..ng ti„.,.i. |„.i„;^ „.. tinalily al.oiit tiie or.lcr made l.y 
 them so much of c. 7(»of tiie ;trd series as was ^^^^_ (hivf Justi.e ..ftiie Cmrt hel.iw in is", 
 tlierein specilie.l (>-. the Act I., jin-vnle f..r tlie ^^.,^1^.,^ ^^.^^^ ,^^|,,^, ,|,j^ appeal .s.Migiit f. set a>i.l>'. 
 I'ul.liciitioii ..f tlie C.n-^.didated Statutes, .•((llli //,„./,.,„ v. /fii/!j(i.r 'i,„l ('<!/„ Jir,i,„i It'uh'-nij 
 
 April, IH7.S, 4tli H. S., page ■_')- „„,/ f„„/ (\„i,/,nii!/, ::ith OrloUr, ISS'i, 
 
 Mr. Harry Alilmtt, having entere.l into the Cas. digest, '.Ui 
 
 contract with the Covermneiit for the constrm;- ' 
 
 tion of this line, sought uii.ler c. 4 ..f the Acts ^q^ KallWl)}' CrOSSllIK Obllj^UtlOII of COni. 
 
 of ) 70, inorp.nation ami the lienelit of the pany running trains I'laintitt' was lea.iing liis 
 
 provisioiLs of c 7-1 of Acts of lH7(i, and olitiiine.l i,,,rse ul.mg a jmlilic ihorouglifare wliicli Wii.< 
 
 a ceitilicate of inc.iriiorati.iti under the name of ^'rosseil liy the track .>f defen.lants' railway, iiml 
 
 the Halifax an.l Cape llreton Railway ami Coal \^.^,[ leache.l a ii.iinl a few feet distant fr.iiii tht 
 
 Company. crossing when an engine, under the cuitrtil nf 
 
 The Company was organized un.ler this Act, defen.lants" servant, aiipr.iache.l sud.lunly ami 
 
 and tl:c riglit of way having huen olitained fi.ighteiie.I the Imr.se, which li.dte.l, ami tlinw 
 
 limlei the Statutes, the .lamages were ajiprai.ie.l jdaintilV in fr.uit .if the engine, liy whicii lie wiis 
 
 an.l the w.irk of constriictiou hegaii an.l wa> luii over and seri.uisly injured. I'lainlitl'.ii.l ii.it 
 
 carried on. see .ir hear the train until it was close hesidu iiim, 
 
 In I S77 an order was made liy the (.'liief .lus- n,|,j |n^,|i,-d no whistle or hell. The .lefeii. lints 
 
 tice of the Supreme Court of Nova Scotia, on diil ii. it plea.l nor attempt t.) i>rove any legislativi' 
 
 the jietition of a numlier of the property owners .i,|ti,ority to cross the thoroughfare in .|iii'tti.iu 
 
 whose lands would lie affected liy the Imil.ling ^^iil, their railway and its loc.imotivesan.l imiiis. 
 
 of the railway, directing the IVothonotary of D^.tVuilants were re.piire.l hy Statute to iiect a 
 
 the County t.i draw an.l strike a jury, under the ^varning post at crossings, an.l to cause ,i hell to 
 
 pr.ivisions of c. 7t>of 'Md K. S., to apprai.se the ],^, ,.„„g „i- whistle to he s.mn.le.l oiiliiiii'iusiy 
 
 laml and property taken f.ir the imrjiose of the f,.oiii eighty rods iieyond the crossing. Neithfi 
 
 Eastern Kxleiision Railway. re.iuiretnent having lieen eomplie.l with, 
 
 In 1H7S a rule visi was taken to set aside the Jfilil, that defen.lants were guilty .if ik'^'i 
 whole proceedings, but a year later it was dis geiice. 
 
 charged .m motion of the party \\\w had oh- Ritchie, . I., f//''.«-»^(/.'/ as to the facts, 
 taine.l it. liuhi}-t'<oii v. Tin Ilnlijhx' Cmtl Co-, 
 
 A (|uestion having lieen raised as to the valid- -<> N. S. R., (S It. A: •■■). •'!' 
 
 ity of the incorporation of the Coini)any un.ler 
 
 c. 4 of the Acts of 1870, l.y the L.jcal Covern- 20. WllldSOr ii AniiapOliS KllllWaj t'O.' 
 ment, and legislation heing alniut to be pas.sed Appraisement of lands — Funds to pa.v - 
 to remove such (l.iubts, another rule was obtained I'laintiff's property, with that of many "tlll■r^ 
 
11(11 
 
 RAILWAYS. 
 
 11G2 
 
 tt;is tiikcii fnr iiiilwiiy |iiii|iii.s,.h, iiinl an a|i|iriiiMr- 
 iiii lit wan iimilu iiihU'r t'liajitiT 41 of tin.' Ai'tn of 
 |h77. 'I'lic ilcfcmlaiit, who wan CiiNtoN cif iIk- 
 ('(iiiiity, fiinl two otlifi' .[iisticcs, wiTt' appointnl 
 liy tlic ScHHJoiiH II t'Miiiiiiittt'c to carry out tlu' 
 |ll■(lvl^^ioll«of tliu Ai.'t,cliii|itfr4'_', of Is77, for tin- 
 lidrrowinj,' of money to jmy thi.. Iund ilaiiia).'tn. 
 Tliiy airiin^'cil witli tlic I'liion liuiik for tin- 
 iiK.iiiy, at tlu: rati! of intfrt'Mt liniiti-d in tlu' Act, 
 liiit Moiuf ik'Iiiy occurring Ituforo tlio iiwiinlH wci »■ 
 tilfii, till' ratu of iiitcri'st rose no tliiil llicy were 
 iiMii,'(il to suliinit, to a iliMcomit of two ami a 
 hiilf per Cfiit. on the Coiiiity ilelH'iituii's. at 
 wliirli rate tiicy toojt the money, wiiicii was 
 |il,ictil to till! joint creilit of tlie CustoM anil 
 'I'liM-iiier. For I'oiiveiiieiiii' in payiii;,' it out, it 
 was iliawn )ty a joint ilieck ami jilaeeil i.) tlie 
 iTiiJif of tlic ilefeliiianl, the Ciistos, wlio pin- 
 ciTiJiil to pay llw aiiuiiiiits awanleil, ileilurliiiL' 
 tlirtwoMiiila lialf per rent. A Ipalance reiiiaiiieil 
 after payini.' oil' all tlie claimantB, wliicli tlie 
 iKliiidaiit paid over to tiie County liefore tl is 
 :iitiiiii was liroiigjil, in the Magistrate's ( 'oiii t, 
 til lerover from defendant the two ami a iialf 
 IKTiiiit. The CiMiiity CiMirt .IndLTe, on appeal, 
 IliM lliat tlicre was iiii privity nt rulltluet lie- 
 tHirii dit'eiidaiit and plaintill', ami iinii-siiiled 
 tile plaiiitiir, lait granted an appeal under seetimi 
 II lit iliapter !», .Acts of i,s7S. 
 
 Tile Court held that tlie.)ild).'e liiid power to 
 
 t'liiiit till' appeal, Imt disiiiissed it on the merits. 
 
 Thonin^ V. I!(iij, •_' H. ^t < :., 1. •).">. 
 
 -.*1. Windsor Branch B. N. A. Act, ISIU, 
 
 3. 108 Power of Dominion Legislature — ! 
 (Ill tile hearing of this cause on tin.' evidence an 
 iilijertiiiii was taken on liehalf of tlic Altnriiey- 
 • iiiitiai of Caiinda tiiat the agreeiiieiit of Scpieiii- 
 Iw'i. Is7l, priividing that the company siiuiiid, 
 with ceiiain exceptions, have the exclusive use 
 iif tlie Windsor llranch, with station iiccomiiio- 
 iliitimi, itc, and the use, as far as rei|nii'ed, of 
 till' Trunk line from Windsor .lunclion to 
 Halifax (\ii /(. .1'^ .ffw j, was not liindiiig mi the 
 I'liiiiiiiion liovernnient, heciinse the railroad froin 
 Halifax to Windsor was a ])rovincial jiuldic 
 wiirk, and as such passed to the Dominion 
 •'iivi'iiiiiicnt under the H. X. A. .■\ct, not as 
 iiriliiiaiy Coveriiinent jirojierty, Imt subject to 
 ii tnisi which tlietiovernment was linund strictly 
 t" fulfil and which reijuired that it should he 
 wiiikfd for the public benefit in accordance 
 Willi the terms of the Act uniier which it wiis ' 
 '"lilt and subject to tlie engagements which had j 
 'wen entered into by the Provincial fJovernment ' 
 ■Wil Legislature, and that the terms of the ■ 
 i'gri'i'iiu'iit did not carry out this trust, as by 
 'lie pnn-isions of the Provincial Act of 18G7, j 
 
 embodying the contract lietweeii the (ioverii- 
 
 mentaliil the promoterH of the plaintitle paiiy, 
 
 it was mutually agreed that jirior to the opening 
 of the road a tratlic arrangement should be 
 made for the mutual use by the (iovernment 
 and the comjiany of their res|>ective lines, 
 which stipulation had not been carried out in 
 the agreement, lis there was no provision in it 
 for a tratlic arrangement. 
 
 //'/(/, that the agreement embodied all the 
 essential provisions of the original contract, and 
 that the Coveimneiit not having insisted on 
 having running [lowers over plaintitl's' road was 
 no reason why plaintitrs sliontd be deprived of 
 ninning powers over the Halifax and Windsor 
 line, but that on the other hand the ground 
 stated applied with great force to the action of 
 the Dominion Legislature under the .Act of |s74, 
 iiiasiiiucli as the Dominion < Iovernment having 
 taken the road, under the provisions of an 
 Imperial Act, clothed with a trust, the Domi- 
 nion Legislature was thereby restrained from 
 acting in violation nf that trust. 
 
 I'lii WiiiilsDi' mill . {null iiiilit Hnihritji Co. 
 v. I'lh tl'i st, rii (,'iiiiiit'ii t I'lii/iriii/ (Jii., 
 
 it. K. D., :is:\. 
 
 Oh ii/i/i'ii/ III l/ii Sii/ii' nil ('niii-/ III' Xnrn S<-(il'(i, 
 II' III, that the agrecmciil was nevcrt lieless 
 valid and binding upon the Doiiiinion (inverii- 
 nieiit, the public interests having been proteited 
 by its provisions to the ^,^tisfactioll of the (oiv- 
 ernnieiit. 
 
 ir. .t'.l. /I'lilii-iii/ Co. v. ir. C. Iltiilmiii Co., 
 
 •2 I!. .*c C, -JSO. 
 
 ()/( ii/i/i<ril to till /'rill/ Crmiiril, 
 
 I'lidcr the I!. X. A. Act, KS(i7, s. ll»S, read ill 
 connection with the .'hd schedule thereunto, all 
 railways belonging to the Province of Xova 
 ."Scotia, including the railway in suit, passed to 
 and became vested on the 1st duly, l.SUT, in the 
 Dominion of Canada; but not for any larger 
 inteiest therein than at that date belonged to 
 the Province. 
 
 The railway in suit being, at the date of the 
 statutory transfer, subject to an obligation on 
 the part of the Provincial Covernment to enter 
 into a tratlic arrangement with the resjiondeiit 
 company, the Doniinion (iovernment, in pur- 
 suance of that obligation, entered into a further 
 agreement relating thereto, of the 'il'nd of .Sep- 
 tember, 1871. 
 
 (Jiiatri'y whether it was iil'ni rin-.i of the 
 Dominion Parliament, by an eiiactinent to that 
 effect, to extinguish the rights of the respondent 
 company under the said agreement. 
 
 15nt, hilil, that Dominion Act, 37 Vic, c. Ki, 
 did not, iipi,n its true construction, purport so 
 
1103 
 
 RAILWAYS. 
 
 1104 
 
 to ilc), and iiUliciuuli it uulliori/<'il n tniiinfcr I'f 
 (he railway to I In' a|>|)i'iliiiit, it iliil not iiiiut 
 Kuoli tiaiiNfiT ill (Icmpitioii of tlir ii'Npoii.li'iit'.'* 
 ri^litH iiikIit till! anii'i'inciit of tin- '.'•Jiiil of Si'|i. 
 
 tclllliiT, IH7I, Of otliflwiMi', 
 
 Tki H'l-'iirii Coiiii'in I'liilii-iii/ Coin/i'iiii/ v. 
 
 Thi Wiinhnr d- Alliia/Mi/ii Itiiiliniii Co., 
 
 7 Aiip. (.11.. ITS; r.l L. .1. I'. ('.. «; 
 
 Hi ].. '1'., :r.i ; 1 Curl., ;«»:. 
 
 2-i. Windsor Branch nhpute m lo-Ile. 
 
 murrer -Legislative authority I'liiiiititln' liill 
 Kot out the Aft of till' I,i'>;i«latiiiv of Nova 
 .Scotia (lS(i."i. <-'. i:i), provicliiiK for the I'onstriif- 
 tioiiof the WiiiilHoi iiinl Aiiua|)oli.s l{ail\\ay ; the 
 ai,'rt'fiiieiit of Novtiiiln-r •_>•.', IStUi, lietween the 
 Coininissioner of liailwiiyn for Nova Sootia, and 
 yU'HHVH. I'niuhard, liaiiy \- Clark, for its con- 
 stniftion, loiitainiiig a stiimlalion Miat prior to 
 tlie opening of the road, a tratlie arrangement 
 should lie made between the parties for the 
 mutual use liy the I'rovinee and the eompaiiy 
 of their respeetive lines of railway from Hali- 
 fax to Windsor, ami from Windsor to Anna))o- 
 lis; the Act of the I'lovimial Legislature 
 incorporating the eonipany (IStiT e. H(i), of 
 whiili the Aet lirst mentioned and the agree- 
 ment in ))ursuaiiee thereof were made a part 
 anil the agreement of the < lovernment of (.'anada 
 (successor to that of Nova .Scotia in relation to 
 the line from Halifax to Windsor), with the 
 plaintiHs, made .Sejitemlier •_»'_'nd. 1S71, provid- 
 ing that the company shouhl, with exceiitions 
 not touching the matter in hand, have the ex- 
 clusive use of the Windsor Hramdi, with station 
 accommodation, etc. anil the use, us far as 
 rc(|uired, of the Trunk Line from Wind.sor 
 .) unction to Halifax, the company to pay over to 
 the Covetnment monthly (me-third of the gross 
 earnings of the gf)vernmeiit lines, the agreement 
 to continue twenty-one years, then reiiewalile, 
 hut to terminate in the event of the company 
 failing to operate the railways between Halifax 
 and Annapolis. I'lainlitrs allegeil that, having 
 certain eiiuitaltle claims against thetJovernment 
 of Canada, they allowed their payments due 
 under the agreement of Septemher, 1871, to fall 
 in arrears, Imt paid them oil' in Novein'ocr, 1S72, 
 after which, under similar circumstances they 
 again allowed them to fall in arrear, in cnnse- 
 (jueuce of which the (iovernment threatened to 
 resume possession of the road, unless iiayment 
 was macle on or before October 1st, LST.'l, which 
 period was afterwards extended to November 
 1st, 187.3; that on the 'J-ind October, 187.3, a 
 Minute of the Privy Council of Canada was 
 passed, of which no notice, otiiciul or otherwise, 
 was given to the plaint itfs, by or on behalf of 
 
 t he < iovernment , reciting that the company owed 
 the (Jovermnent !?;«», INK), and liad fulled t.) 
 
 operate the Windsor liram h. and r mini ii.iuii; 
 
 that the (loveninieiit shouhl iunni'diiiteiy piu 
 ceeil to operate the load between llalilax oiid 
 Windsor; that afterwards, on the iMlli .Imic, 
 |h7."), un agreement was entered into beiwrcn 
 Her .Majesty the (^Ueeil, represented by the 
 .Minister of Public Works, and the pliintitl 
 company, whereby the company agriid tn 
 change the gauge of their railway and rele,i-c all 
 eiainis against the Oovernment to.luly 1st, hT.'i, 
 and in considiratiou thereof, the lelits alN i^.d 
 to be due to the ( Iovernment by tiie coiupiiny ii|) 
 to.lanuary 1st, l87.'i. «ere extingnislieil. and il 
 was declareil that the agreement under wlmli 
 the comjiany hehl and worked the liraiicji Luu- 
 continued in full force and etVect, except »^ tliii^ 
 moditied. Plaiiititl's alleged that they hail . uii 
 tinned in possession of said Windsor I'.iaiuli 
 until August. 1877, when the Superintendent 
 of ( Iovernment l^ailways took forcible pusses 
 sioli, and prevented them from using the r.nim.li. 
 The road was afterwards transferred by tiie li-i 
 minion ( Iovernment to the defendants ou tin' 
 •J4th Septemlier, 1877, such transfer being base! 
 on the authority of the Dominion Act ot |s74, 
 e. 1». Defenilanta deimirred to this writ. 
 
 Hn'il, that by the agreement of Septeiuhei', 
 1871, the Windsor llranch was in fact leased Id 
 
 the plaintiH's for twenty-one years, that tlit ly 
 
 event upon which the (Iovernment was autimr 
 
 ized to reenter was a failure to operate the nwl 
 
 lietween Halifax and Aniiiiiiolis ; that the state 
 
 inent in the Minute of Council that pliintiH's 
 
 I had failed to operate the road could be coiitm 
 
 verted in this suit, and that without U'uking tlu 
 
 , Crown or the ( Irivernment, represented by the 
 
 Attorney-deneral of Canada, a jiarty t" tin' 
 
 suit and' having been denied by the plaintiff.-, 
 
 must be taken for the purpose of the argument 
 
 on the demurrer to be untrue; that, iiidr|ieii 
 
 deiitly of the Act of 1874. the only inteiest that 
 
 , coul.l be iransfcrred to the defendants by the 
 
 (Iovernment was tiie (iovernment's reversionary 
 
 i interest in the road, .subject to the i.laiiitirt> 
 
 j lea.se ; that the Act of 1874 did not directly ami 
 
 i in terms, divest the plaint itVs of their rights, ami 
 
 must be held as intended simply to .sanction tiie 
 
 I transfer to the defendants of such interest as the 
 
 i (Iovernment itself had in the road; that the 
 
 ■ plaintiffs had no adeiiuate retnedy at law, liv 
 
 v,vV./arm-i or petition of right, as they did nm 
 
 seek redress against the Crown or the ( ioverii 
 
 ineut of Canada, and it was not in the power"! 
 
 the (Iovernment of Canada or the Crown tngive 
 
 them the relief sought for,— nor by ejectment, 
 
 because, assuming that ejectment would he m 
 
iir,.i 
 
 RECEIPT. 
 
 iiGd 
 
 i,>|.r,t t.. th.' lights I'laiinuii i,y piaiiititr^ t- 2. Not concluitive PlalnllirN hired a vPMPi 
 
 „|Mi;it.' tlic niihviiy iiiMirr tlif iiKiffiiiriit of to N. * ( '... Ic .iinv u full ciii^o tV..iu Kalitax 
 
 IsTI, |)laiiitil!« (.•iMilil lint l.y tliikl lu'tiiMi nlitititi ic r,ivcr|>.Mi|, tlir fivijjlit to Im- t;H:.(t, im,! tlu' 
 
 mv iclii'f ill ifMiif.t to (lir oii^iiml ugiv.'iiiciit i.luiiitill'rt to livku tlu) fioiKht uinl |>riiim«f. iiih por 
 
 with tlic IVnviiiciiil (Jovfriiiiuiil m to iiiiiiiing l>j||^ of Iiulinj;, to tlu' fxt.'iil of Csr^t), in tiiml 
 
 puMfis. anil tliiH gromi.l ..f ilnniuir.T l.fing to payin.'iit tit Halifax, willioiii ifLimr ii N. * 
 
 thr vvlinl,. writ, fvrii if a|>|.liial,l.. to pail of thf Co., wlio.sc iDHpon.sil.ility wan to ueimu m noon 
 
 Hill. iiiiiMt III' ovfiiulcil, UM it coilM not 111' gooil an thti kooiIh welt) on lioaiil, the vcsxel Iml.liliKa 
 
 11, put anil liail in part. lien „n tlio eiugo for frei^lit. 'I'lie -Ivluieiiey, if 
 
 U'iiiiliiir mill Aiiiifi/iii/i'i llnihi-tni v. any, wan to lie paid liy \. it Co., anil tlii' i'X(e»» 
 
 ll'i 1^ CH Ci'iiiiiii^ /I'liilii-di/, K. !•;, I)., •.'ST. over t'M.'iO to lie proviileil for liy nia!Hter'.s ilraft 
 
 (hi 'iji/iiiil >i>l/ii Sii/itiiiii ('niii'l ti/' Xniii Siiitiii, 
 
 a),'ain.<(t freight. Of tlie freight on the earj,'o, 
 f.'J.VJ waM payalde liy third per.sonn, and t'ti'.t.') 7h. 
 
 //./'/, /■»/./• n/in, thai the po«er of leKiNJation Mil.l.y N.^t Co., makiliK in all fl.<»47 7h. Hd. I.eing 
 ii!< In the Windsor llraneh, ,. .„ the line of rail- an exee.ss of flit; Is. ,sd., for whieli the iniiHter 
 way hetween WiiidMor and WindNor -liiiation iiecopted a draft iiayaMe at the otiico of defend- 
 l«lniig.>( exoliiHively to the I.egiHlature of Nova ant, who, in this liansa.tioii, wan the agent of 
 
 Sn.tia, under Ihelfindsee. of the IJ. \. A. Art, the plaintitK The a ptaiiru WilH indorsed 
 
 :<uhMr. Id, that road lieing a local work and liefoie maturity to P. & I!., for value. At I.iver- 
 noi ruining within any of the ela»«es excepted pool the master gave an order in writing to 
 l.y the .section r.'ferred to, and therefore the Ai't defemlant'n houMe, to pay the draft out of the 
 "f the Dominion I'arliament, l,H74, cap. Ill, i.s freight tir.st collected. Defendant only admitted 
 >iliri, ririi (.lames, ,)., ill,.-., ,ili,i<i a.s to this having collected f.">l7 «s. (»d., of which he paid 
 •""""• _ to the captain t'.'t.'i l.'is. 7d., the lialance lieing 
 
 Itit.iiie, K. .1., adhered to the views emiiodied accounted for thus : " Dislmrsemeiits, t'JSl 4s. 
 ill the judgment appealed from. d.l ; ,,iid acceptance of X. .t Co., fl!)7 7s. Sd." 
 
 nii,'l'<or ,V Aiiiin,.o/ii /;in7ir„i, Coni/irtii!/ v. '!'},„ captain, after learning the items of the 
 
 llVifirii Coiiiifii.> llailii'tiy Coiii/fiii!/, acoount, some of which were professedly iin- 
 .'{ K. it ('., ;{7l>. settled, heing stated as "aliont" the sums set 
 down, gave a receipt for the t'.'J.") l.')s, 7d., hut 
 i shortly after wrote defendant, disputing the 
 I correctness of the account, and expressly notify- 
 ing the defendant not to part with the t"l!l7 7s. 
 Sd. deducted from the freight. 
 I //«/'/, that the receipt could not lie relied on 
 I as conclusive in an action liy the plaintitf against 
 the defeiiiUmt for money had and received, and 
 that the items of disliur.senients could only lie 
 
 KANSOM - 
 Si' PKIZE. 
 
 R.*TE- 
 fff ASSESSMENT. 
 
 RECEIPT. 
 1. Effect of, in evidence-The body of a 
 
 (lied acknowledged the payment of the piircha.se 
 money in the usual form, and n, receiiit therefor 
 signed hy plaintiff was also indorsed, hut suhse- 
 <\»mt to the sale a dispute arose as to whether 
 thf luiKiunt 8tate<l in the deed included a mort- 
 gage existing on the property, or whether the 
 puiclmser was to pay that also. Plaintiff .hav- 
 ing sued for the amount of the mortgage, 
 
 ^fW, that in the face of the indorsed receipt, 
 and of certain evidence adduced in confirmation 
 tlicrcof, he could not recover. 
 
 McDonald v. lilois, W N. 8. D., 283. j 
 
 given under a plea of .set-oft'. 
 
 MrFairiil:/!' il nl. v. Carrlll, 4 R. & C. 'JSU. 
 
 3. Not conclusive Plaintiff and defendant 
 
 entered into an agreement, liy which defendant 
 contracted to finish a certain vessel lielonging to 
 the plaintiff". Hefore the completion of the con- 
 tract tile vessel was Imined, and a difference 
 having arisen as to the amount defendant had 
 earned under the contract, plaintiff" and defend- 
 ant entered into arliitration honds, in which, 
 after reciting the agreement, and that the vessel, 
 hefore her completinn, had lieen consumed hy 
 fire, the subject of the submission was stated as 
 foUows ; " In conseijuence of which, dift"erences 
 have arisen between the said J. I{. (the plaintiff"), 
 and the said A. M. (the defendant), as to their 
 arrotints, anil the amount the naiil A. M. in en- 
 titled to recelre under faid ai/re.emenf.'' Two of 
 the three arbitrators made an award, in which, 
 after stating that they had investigated the 
 
iir,7 
 
 RECEIVER. 
 
 lies 
 
 mutter miltniittcil for ilirir I'diixiilftiiiioii, tliry 
 iiM'iinU'il "'I'lmt tin- Niiiil .1. |{, (tlir pluinlitri. dn 
 piiy til the Willi A. M. (the ili'ft'iiiliiiit I, tlir i-lilil 
 i>f L'lll.'i, linilcT llJN ll^l'CtMllrilt, mill tlir niltlti'l'N 
 
 Nlllllllittl'lj III IIH." 
 
 I'illilltill' llilil, |irr\ inilM til till' HIlliliiJNMiiiM, |litiil 
 (li'frliilalil l'l,S4 mi iiiriililil nf tlic uink lllliliT 
 the riiiiti'art, ami HiiliNi'i|ii('iit tii tin- awanl lir 
 piijil llilil u fiirthci'Niiiii iif t','i, iiiiil tiiiik a ri'i'i'i|it 
 frmil liltll tlirrcfiir, « llilil Wiih rX|iirxHi'il tn lie 
 " ill full nf all iliii's aiiil liciiiainlN tn ilatr," imt- 
 witliHtaiiiliii^' wliicli tlio ilcft'iiilaiit hml nut lip 
 tlir aiiioiiiit I if tlnMiwaiil mh a Nrlnirtn a Koparate 
 ilcliiaiiii of tlic (tlaiiitiir. 
 
 //(/»/, tliat till' li'i ri|it, altlliill^'ll fiillllil liy tlir 
 jury tn liavr licni pii'paii'il liy tin' plaint ill' in 
 gniiil faitli, anil Ni^'iii'il liy tlii' ilt'fciiilaiit with a 
 klinwlril^'c nf its I'liliti'lltn ami nf all till' I'iirillll- 
 HtaiircH, WMH nn liaf tn llii' ili'fi'liilant 'i rlailll nil 
 till' awanl, 
 
 IkniK'f V. Miiimii, I Olil., (iU. 
 
 I. Proof or receipt Where tlereiidant In 
 
 an act inn nf tinviT plcai'ril ai'inl'il anil satisfai- 
 tjciii, ami piniliiouil ill I'viiloiK'tMi wiitti'ii roi'i'ipt 
 ill full, wliirli 111' tcstiliiMl plaiiitiiriiail si^'iicil mi 
 rcrcivinj,' rirtaili ;,'nnils pursuant tn at;ii't'iiieiit, 
 anil plaiiitilf tuNtilii'il, " \ nivt'r Mij.'iioil siicli a, 
 rciiipt as this. It Innks liki' my si>;iiatiii'i' ; I 
 ilnn't tliiiik it ix. It is wvy liki' it, IM say tlii' 
 Hij,'iiatufp was iniiif if T iliiln't seu the writiin; 
 alxivc it," ami a;;aiii, aftii' hearing ilofuiiiliiiit's 
 I'viiU'iu'f, "he (ilifciiilant ) ])riiiliii'fil a ice'i'ipt 
 siniihll' tn till' nlii' pinillK'iMl w liiill I Iffusoil tn 
 sign. I ivail the fine I signeil liefnio lining sn," 
 liut iliil nut priiiliice any witness tn examine the 
 signature as pniveil liy ilefemlant, ami express, 
 
 if he eiuilil, a ilmilit as tn itsgeiiiiineness, 
 
 Jlilil, that the veiilii't fnr jilaintitr rniiM nnt 
 
 lie sustaiiieil. 
 
 M(ii(l(i(iiiv rij V. llnri, '1 W. k ('., "iJiS. 
 
 h. Receipt In deed The receipt of the 
 
 cnnsiileiatinii niniiey in a ile< il is enneliisive at 
 eiinininn law, Imt a Cnurt nf Kijuity Innks to the 
 real ehaiacter of the ilealing, and gives the ven- 
 dor a lien on the estate, 
 
 Xihon V. CoKiwrx, 1 (Jld., 4(K), 
 
 A. Weight or, as evIdence-PlaintllT testi- 
 fied that defendant " entered. " his jireniises, as 
 a yearly tenant, at t'tKI a year ; and that " there 
 never was any agreement that he rt-as to he a 
 monthly tenant." Defendant testified that "the 
 premises were engaged verbally at !*,S0 a month. 
 Defendant also put in evidence two receipted 
 accounts from plaintiff, one for "one month's 
 rent of office from 1st Nov. to 1st Dec, 1871, 
 
 .^,'llt," and annthrr fm fmu and a i|iiiiiti'i mmitliH' 
 rent, 
 
 llilil, that the I'vidriiri' so largely iirepmnliiu. 
 ted ill favor of dtfi'iidaiii. In the iiliN<<neL> of i>x. 
 planatinlis l>y the plaintltl' nf these aeeoiintH, 
 that the verdict ill favor nf plaintill' iiiuiit he st't 
 aside. 
 
 |{|ti-liie, K. .1., and Wilkins, .!,, iIIhii i,iiini. 
 
 trXil/ V. ir.//-, '.' II. fi (•.,•.•(1.-,. 
 
 KECEIVRK. 
 
 1. Appointment of, modlfled I'lalntilTi* 
 
 had sei'iii ity nil the iinileitaking nf llie di li ml 
 ant I ninpaiiy, future calls mi NhareN and all t>ilU 
 and money arising frnin the nndeitakiin.', inr 
 t''J<HI,(MI»l as a liisl lien. .Messrs. Mnjifits, huh. 
 Iii.rk fi ('•>., an Knglish linn, had ii lien nn tli" 
 inlliiig stuck for t'J."i,lMMI, and there wen.' aliuiil 
 t'7ii,<HMliliie In unsecured creditors, Defeinliiiitu, 
 iimlei' c. HM nf the .\cts nf ls74 nf the l.i':;isi,i 
 lure nf .Nnva Scotia, intitiiled, " .\ii .\rl in 
 facilitate arrangenielits lift ween lliiilway Ciim- 
 panics and llicir credilois " (""' .Vets of IsT.'i, 
 piigc I ), tiled a sclicme, wliereliy piefeiciitMl 
 stock to the extent of t'7">,<KM) w as to he I'l'iiilt'il, 
 to lie a first charge on linlli the imdcrtakiiig, 
 calls, tolls, i^c, and the rnllilig-stnck, and this, 
 nr the niniiey cniuing frniii it, was to lie iipiiliril 
 to the li.iyiueul in full nf .Messrs. Knlicits, 
 Lulilmck iV Co., and certain unsecured ilclil.'; 
 specilicd ; stuck tn the extent nf .iXiH.IKKI wim 
 then tn 'le created, tn he a siiliseiniciit char^i'nii 
 the undertaking, »*i:c.,and rnllingstock, and wis 
 to he issued at par to the existing delieiitme 
 holders in lieu of the deheiitures they thenliclil, 
 which were ti. lie delivered iili tn lie caii.illiil. 
 I'laiiititl's nlitained an order fnr the apliniiitiiiiiil 
 nf a receiver, which defemhints ohlainoil a nilu 
 (/('.<(■ to rescind. 'I'lie Court, considcriiig ihiil tlif 
 Act was ii/lra rini, as it dealt with the snlijt.i.t 
 of insolvency, and further, that the scheme liieil 
 was uiireasonahle, as its object was to seciiic 
 other creditors at the exjjeiise of dehciiture 
 holders having a first lien, discharged the rule 
 nisi to rescind, Imt, in view of thepossihlc reversal 
 of the judgment on appeal, ofll'ered to modify the 
 order appointing the receiver, hy directing lii"' 
 to pay the amount to he received to the KcceiviT- 
 (ieneral, to abide the further order of the ('mirt. 
 i Murdoch v. Wiiuhor d- Ainia/'olii h'^iliidi/ 
 Comjiuiii/, K. K. I)., 1S7; 
 .3 Cart., ;fliS. 
 
 2. The Court will not appoint a receiver 
 
 except when a suit has been instituted. 
 
 Ex jiatie Ptillon, i Thoiii., Wo. 
 
UOO RECORD. 1170 
 
 KKdMiMZAXCEi tiiUdl XII t||i> pint i.f til.' Cinuil. Itlllc iiiiiili' 
 
 I. K»ln'fttlnK III oriliT to Mroal » ''""" *' v»,-„ v. 77«.//./m„„, •jTlium., ii. 
 
 ri'i M^iii/iiiii')' lakrii iiiiilcr ('ii|i, .'10, nl' the |)ii- ^ 
 
 iniiiioii Ad i<( IH(HI, ull timt in ii(|iiircil Im ii | •"*'" REt'ORD. -• 
 
 ii'itilii'iito friiiii till' in'iipcr iillicci' (iiinlcr nco. I 
 
 4.'iot till' Act) tliiit it in foifiitcil. I'lMPii that ' 
 
 <i mil' lii-i Im tiikcil out nil iltliiliu ilM nt t lir fai'tN, 
 illlll if Mil CIIIINU in tllOWII, jllll^'IIU'lIt fnllnws, |j||t 
 (\itll(illt CdHtH. 
 
 I'l'iii'liue ii) till' \hiiiii V, Tlidiii/i'iiii, ■_' 'riidiri., 
 !l, iilliiiiii'il 
 
 KE(OKI>. 
 
 1. PIIInK of A JiKlKnipnt had bren 
 
 I'litcri'il tip (III vt'i'iliut, liiil llii'ic wiiH iioihiiig 
 
 the fait that an fxt'culion hail ln't'ii ixNiicil. 
 Mdic than thirty ycaiM aftciwanU ii. nih' /(/'•/ 
 
 2. Eitlrcntinu; Dcrcnilant, hnvlns been waH ohtuiiu'ii for leave t<> tilu a rccoiil tiuii'iii 
 
 I'ciiviilril III till' I'lillit' ('iiiiil of an awxaiilt, iiunr pro hiin', in iH'tlcr that it ini;,'lit )"■ pi'n- 
 
 cntiTi'il into a iccofjni/ani'u with two Hiiit'tii's cliu'cil iih cviilcncc in a pcmlin^' articpii lirtMcfii 
 
 'HJiftptln' I'caci'. Aftci'wardM li<^ wan coiivic- tht; sons of i hi! original parties, ihi' litli' to laml 
 
 til! cif a si'i'oiiii assault, ainl thi> Aftoincy- Iwiiiy in iiui'stion. The ink' was ilisfhaiu'i'd on 
 
 (ii'iii'i'iil hail till' proi'i'cillii^'s lii'oii^'lit lip liy the grouinl of tliu itpplleation liein^' ininh' too 
 
 I'iri'dfiirl. Will reiipoii, j.ite, anil hy a jiarty In another suit with tlie 
 
 TlieColll't, hojiliiii; that the llioileot' pi'oi'eeililiL' olijeit of proihuing the leiolil as eviilellie nil 
 ill Kiii.'lanil to estreat rt'eogiii/anres was \v holly his own lielialf. 
 
 lIMlipliialile to this IVoviiiee, saiiitioneil the ''"'"' '^' • •**'""'''. 1 N' ■'''■ I'-, -'». 
 
 iniM-ii' piirsiu'il ill the Illlll II V. Tliiiiniiiiiii, 
 
 .11,,,,, 1). 'i. FllliiK Must b( IlkMl I'rodiicllMii or 
 
 \hiii II V, /li/iini, I It. ,^ i;,, .">|, hail-|)ieee not a mitheienl answer to a |)lea of 
 
 /,(// //. / nriiril —No execution isuiied before 
 
 action- In an aetion on an alleged reeogiii/aiue 
 
 ■t. .hl(l;;ilient on — JllllKinOnt will be of hail, set out in plalntill's deelaratimi as 
 
 iiildvil nil a reciignizatiee against liotli piiii- eiitefed into liy the defendants to lespmid a 
 
 tlpal and sureties, where the prineipal has judgnient to he finally given on a rule ;n.v/, taken 
 
 ml ippiared in aeeoidanee with the eoiuli- under the Statute under the former praeliie, 
 
 timi iif Mieh leeogiii/anee, and where a rule nisi the defendants adiiiitted the making of the liail- 
 
 fiirsikli judgiiieiit lias lieeii served on tile sure- |iieoe. wliiih was signed liy tlieiii liefore K, ,1. 
 
 tits, and the prineipal liiiM left tlie I'rovinee, U., as Coininissioner, luiniitted to he siieli, who 
 
 iuid they have failed to show cause. also took their athdavits of jtistiHeation, and, 
 
 V'"'" v. 77(o//)/,w((, •_' Thoni., », artirnied. lieiiig I'lotlionotary, had them tiled with tlie 
 
 fjniiii v. Cin/ilii I/, I Old,, 7<M. hailpieee, hut the reeogui/anee was not rediRed 
 
 to Wilting, nor did it appear iijion any record of 
 the Court. 
 1. JudKltlt'nt on — Praellce as to en* Defendants pleaded, among other things, that 
 tering up Judgment on a recognizance — there was no record of the alleged recogni/anec 
 Tlie Clerk of the Crown made an affidavit of of Ixiil remaining in the Court, as it was set out 
 till' filet of a reeognizanee having lieen entered ' in the plaintiff's declaration. 
 into liy the defendants, of the signature of the Ifi/d, that the production oi the hail-piece 
 •lustices of the Peace thereto, and its return into alone, worded " to respond the judgment to he 
 the Siipi'enie Court, and the non-appearance of finally given herein on a rule ;i/.</ for a new trial 
 the puny to jilead to the indictment. On this under the .Statute," was not suthcient proof of 
 afhiliivit a rule nix! to enter judgment was oh- the plea. 
 
 taiiicil. A copy of the rule and of the affidavit It heing admitted that no execution had heen 
 was served on each of the defendants. Ky cap. issued, 
 
 hin, 1st Revi.sed Statutes, s. 17, the Justice on , //t/rf, a/io, that if defendants could avail 
 tiiking hail is required to give notice in writing themselves of that defence, plaintiffs could not 
 to the party accused, of the time and place of j recover ; but that the defence was not available, 
 trial. SiR'h notice had not been given. not having been pleaded. 
 
 Pir Haliburton, C. J. — As there appears to McOee et al. v. Ptrhiim (./ ah, 20 N. .S. R., 
 lie no settled practice relative to these escheats j (8 R. & (.i.), l."')4 ; 
 
 here, I can see no objection t the proceedings | 8 C. L. T., H15. 
 
1171 
 
 RECORD. 
 
 1172 
 
 3. Filing - Delay in flUng - Where the 
 
 (k'feiidiilit otl'oied in fi-viilenut! a reconl mil, in a 
 previous action liutween the same parties, wliirli 
 luid been luuxled to the I'rothonotary in Court, ' 
 and marked tiled, only lialf an hour before it 
 was so tendered in e\ idenee, 
 
 IkUl, that the .ludye was right in rejecting it. i 
 Mimlock V. Gran/, 'JThoni., M). 
 
 4. Judgment — Application to set aside 
 
 by stranger to the record — In a case of 
 replevin, tiie defendant withdrew his pleas and 
 gave a confession upon which plaintiff regularly 
 entered up judgment. Sometime subsecjuently 
 \V., who was not a p'lrty to the suit, but who 
 claimed the goods, rejdevied under an assign- 
 ment, from the drrendant, and was one of the 
 sureties upon the replevin bond to the SiieriH, 
 sought to have the judgment set aside on the 
 ground that the confession was a frau<l upon 
 him and the other creditors of defendant, and 
 also that he had joined with defendant in the 
 pleius which had been withdrawn without his j 
 sanction. The latter allegation was denied both 
 by defenilant and defendant's attorney, whom 
 W. ?wore he liad instructed to act for him. 
 
 //lid, that W. not being a party to the record 
 had no lorii>^. sianili, his redress, if any, being 
 against defendant's attorney, an<l also that he 
 had been guilty of laches. 
 
 Hare v. Murphy, 3 N. S. D., 202. 
 
 5. Judgment on appeal from Magis- 
 trates—Evidence of — No record being tiled in 
 the .Supreme Court, of judgments in causes ap- 
 pealed from Magistrates' Courts, the termination 
 of the proceedings under whicli the arrest was 
 made is sutficiently proved, in support of an , 
 action for malicious arrest, by the testimony of \ 
 i\ competent witness who heard the judgment on 
 the appeal pronounced in open Court by the 
 
 Judge. 
 
 Cox v. Gunn, 2 R. & C, .528. 
 
 On appeal /o the Supreme Court of Canaila, 
 Held, reversing the judgment of the Court 
 l)elow, that such evidence was inadmissible, and 
 was not proper evidence of a tinal judgment of 
 the Supreme Court of Nova Scotia. 
 
 Gunn v. Cox, 3 S. C. R., 206. 
 
 6. Nul tiel record— Where, in an action 
 
 to revive a judgment, defendant pleaded nnl tiel 
 record, and plaintiflF tiled a recor<l only five days 
 before the trial, and after plea. 
 
 Held, that the plaintiff could not recover, as 
 the matter alleged in the plea was true, and a 
 comjdete answer to the action. 
 
 'I'he record roll, filed by the attorney in a 
 
 cause on entijring judgment, is the only eviilcnw 
 of a recovery. 
 
 Where plaintiff has dieil after reoovciiiii.' 
 judgment without tiling a record, it cannnt In- 
 Kled by his representative without leave nf tin. 
 Court or a Judge. 
 
 Cheslnj V. Honnilt, I R. .t C, 111 
 
 7. Police Court - What sufllcient record 
 in- 
 
 Held, that the following record of liii; I'uliii' 
 
 Court was sutlicient evidence of the tortninatinii 
 
 of the i)roceedings : "J. J. Backstrr)ni ; iliai^e, 
 
 stealing two rings (i)ros.,.I. Reck) ; dischai'^'e.l." 
 
 Jiartitrom v. /i'ek; '> R. & (i., .'^'is. 
 
 8. Proof of — Filing nunc pro tuiu- 
 
 Rlaintitf j)ropose(l to give in evidence a ('ii|>y uf 
 a record alleged to have been tiled, March l.'flli, 
 1878, to meet a plea of nnl tiel record. Tlie 
 Prothonotary of the Court, called by plaintift', 
 stated that no record of that date was to In- 
 found, and on cro.ssexamination said the tiMt 
 record he had seen was tiled August ISth, ISTfl, 
 and that this was the first record that had hfuii 
 sent to him by the attorney whose duty ii wns 
 to prepare it. 
 
 //(/'/, tnat the Judge had properly njecicl 
 the evidence, and that he was justified in re- 
 fusing to allow a record to be filed iiiiiic jiro 
 
 tunc. 
 
 Hardy v. Smith, 1 R. &(;.,. Til. 
 
 9. Proof of - Defendant put in as evi- 
 dence of the judgment the so-called " recurilln 
 default " in the form No. 11 of .schedule A, caii. 
 04, of 4th R. S., signed by the plaintitf "s attDi- 
 ney. 
 
 Held, that this was legal evidence of a \wk- 
 
 ment. 
 
 McDonald v. Feriju-^son, 1 R. \' Ii., > 
 
 10. Proof of record to support plea of 
 
 res adjudicata — Plaintiff brought an actirai 
 for u.se and occupation, which was afterwanl.* 
 amended l)y adding a count for mesne i)Mitit5. 
 Defendants pleailed, disputing plaintitl's titli- 
 and possession, and plaintiff, l)esides joining 
 issue, replied, .setting out the fact of an eject- 
 ment suit against one Davis, the order of a 
 Judge pernutting defendants to appear as land- 
 lords and defend said ejectment suit, the ])i'"- 
 ceedings in said suit on the Gth May, '7'), liufniv 
 McDonald, J., when came the said \Villiiiiii 
 I Jost and the said Church Wardens and Ve.-itry, 
 ' and a jury who found, &c. On the trial tiw 
 verdict of an ejectment suit was tendered and 
 received without objection. It was signed liv 
 ; the foreman and Prothonotary, and purpDrtC'i 
 
117.3 
 
 REGISTRATION. 
 
 1174 
 
 td 1p(,' liutweeu .lost, an |ilaiiilit}', and Davis, as 
 (li'fciiilimt, anil did not niciitiDii the ))resent cli;- 
 fiMiiliiiits at all. A rt^ciird signed liy tliu attorney 
 and not aiithentiuatud liy an officer of the Omit, 
 \v,f tiien londert'il, wlii<h recited an ejectment 
 suit Iputween .lost and Davis, the order of a 
 .Jiid;;!' allowing tlie present defendants to a|)])ear 
 and di'fenil in their own name, the proceedings 
 (III April "iTth, '7'), when " liefore Sii' \V. Voinig, 
 ('. .1., and his associate . I iistices, came the ])ai'- 
 Uv-i witidn niiiitioned" (liijing the plaintiff, 
 l)ivl> and theClnncli Wardens), " and a jury 
 .sHHiii." itc. The recoid was rejected, and the 
 |iiiiiiitifT non-suited. 
 
 //'/'/, that tlie record .■should have been re- 
 ceive! i. 
 
 W'eallierhe, .!., ilissin/iiii/. '■ 
 
 Josl. V. C/nirrli Wurili ii'< rniil I'litfijof 
 St. (;,or;ii'.^, I R. A: <;., 4,')I. 
 
 KECOKDEK - 
 OF IITV OF ll.iLIF.4X- 
 
 SV' IIALIF.tX, tITY OF. 
 
 KEFEREXCE- 
 ORDER OF - 
 SV, ARBITRATION AM) AWARD. 
 
 REGISTRAR- 
 
 OF VKE-ADMIRALTY (OIRT- 
 
 S,-e PRIZE. 
 
 REGISTR.ATIOX. 
 1. Attestation tertlfloate of -4tli R. S., , 
 
 C.79, s. 12 — Cf. 5th R. S., c. 84, s. 11 -Where 
 ii cerliticate of the attestation of tlie execution 
 of a ileed contained no date, ! 
 
 //'''/, that the deed was j)ro|)erly recorded in 
 tlie Registry of Deeds office, the words of the 
 l'2tli sec. of cap. 79, H. S. (4tli .Series), reipiiring 
 tlicilateof the attestation heing merely directory. 
 MrKen-if, v. Lamont, 2 R. A. ('., .")I7. 
 
 2. Crrtiflcatc of Rcsintrar of Dceils - 
 
 Affidavit of .search - Estoppel ~ Action of 
 ejectment -The action was twice tried. Plain- 
 tiffs, executors of original plaintit)', claimed title 
 under a deed dated the IStli.luue, 1.S.">ti, wliich 
 Hiigli Mc.Master, deceased, the former owner of 
 the land in (|iiestioii, was alleged to have exe- 
 cuted, conveying said land to his .son, Ronald 
 .McMaster, who, on tlie l!»th AjH-il, IS(i!», niorl- 
 gagi'd to the oriiiiual plaintitf. This mortgage 
 having lieen foreclosed, tiie land was pui'ciiased 
 l)y the mortgagee at .Sheriff's sale. At the trial 
 l)laiiitilfs' counsel tendered a copy of the deed 
 of the ISth .luiie, IS.'iti, certified to lieatnie co])y 
 liy the Registrar of Deeds, anil aucoinpaiiicd hy 
 an atlidavit of one of the plaintitVs to the etVect : 
 "Tliat tlie original deed, of wliicii the paper 
 writing hereunto annexed, marked A, is a copy, 
 certified under the hand of the late Registrar 
 of I )eeds, in and for the said County of Inverness, 
 is not in my or my co-plaintifT's ))ossessioii, or 
 under our I'ontrol ; and I fiirtiier say that we 
 have iiii|uireil for, and lieeii unahle to procure, 
 tlie same." 
 
 I)oii,ild McNhister, a son of the original owner, 
 and one of the witnesses to the deed, gave the 
 following evidence : — 
 
 " I went to the Registry of Deeds ottice and 
 proved the deed from my father, Hugh Mc- 
 Master, to Ronald McMaster, his son. It was 
 registered 17th June, IS.'iO. I took the deed to 
 the Registry Office, and left it there. 
 I am not aware of Ronald's knowled.;e of the 
 deed from my father," 
 
 Ronald swore that he never saw the deed, and 
 never heard of it until a few years liefore the 
 first trial, in Octoher, ISSII. 
 
 It was agreed that plaintiff should liecome 
 non-suited, with leave to move to .set tlie non- 
 suit aside, and in case the Couit .should think 
 tiie nonsuit wrong, the t'ourt to enter a verdict 
 for plaintiff. 
 
 The .Supreme Court of Nova .Scoti.i (McDon- 
 ald, C. J., and Rigliy, .Smitii and Weatherlie, 
 .1.).) were divided — Rigliy and Weatherlie, J.]., 
 heing of opinion that the presumption was that 
 Hugh McMaster, the original owner, having 
 signed the deed, delivered it to Donald to take 
 to tlie Registry Office to lie proved and regis- 
 tered ; that by tliis registration he gave notice 
 to all the world that he had conveyed the land 
 to Ronalii, and that there was evidence for a 
 jury : that by his conduct in I'elation to the con- 
 veyance to Ronald he had induced the original 
 jilaintiff to accept the mortgage from Ronald, 
 believing the title to be vested in Ronald, by 
 virtue of the deed. Therefore the defendant, 
 who also claimed through his father, was 
 
1175 REGISTRATION. 117ty 
 
 CKtoppi'd firiiii (Iciiyiiig tlu' diK' (.'Xci'Ulidli (if tin: //</'/, lliat, iis tlic |iliUiititl' liiul liail ii<i nnti.c 
 
 ik'tMl. of the mortgage, liis title \Nas good iinU'ss the 
 
 McIVmald, ( '. .1., and Smith, .(., were of mortgage was registered juior to tlie registration 
 
 opinion tliat there was not sutfieient evidence of of tlie deed, an<l that in order to [)rove su.h 
 
 tlie exeeutioii of tlw deed. registration it was neeessary to show that tlic 
 
 MrI)oii(thl it (il, V. MvMaiii r < I a/., certitieate had lieen signed l>y tlie jiioper otlirir, 
 
 "i K. vt ' ;., 4.SH. tlie mere produetioii of a paper inir/ioriiiiii to \v 
 
 a eertitieate not lieing siitiii;ient umler 4lh 1{. S. 
 
 On II nii'itl to till Sii/iri ,111 Coiii-f III' Citii'iiln, _,, ,., ,., -., ■, ^ „, ,- , 
 
 '' ' • e. ,'.) ». IS. (Name as .It h li. N., e. .S4, s. li.) 
 
 //•/'/, tiiat there was sutKeient eviileiiee to (Unilit \ . M<(1 n ifor, 1 R. & (i , .Tiil. 
 
 estal.lish tlie due execution and delivery of the Followed in Mi-Curnuu-k v. Dniiiiioii, 3 H. & 
 
 deed to I'oiiald. The eoj)y having lieen received (; -| 
 
 in evidi'uce without olijection, it was too late to 
 
 ohject to its ad.Missihiiity. ^ CoiiU'st bctwoeii Jisslsnco Jiiirt jKtacli.. 
 
 Mr.,.,,', .J., ilHhitiuiti. Appeal allowe.l with j^^, ^.^^aitors under Absconding Debtors' Ait 
 
 costs, and vcidict directed to be entered foi' w ■. c .. \ . • . .i 
 
 — Writs rif attai'hiiiciit against the iii(irtj.ML.'iir, 
 
 plaiiitif!. , I'll. 1 II 
 
 ' as an aoscoiiiliiig dclilor, were issueil, and ilu- 
 
 ' ' liveri'il to the Sheriti on .May "JO. An a))pi;iisc. 
 
 ('as. Digest, 141. . f.i . 1 • .. 1 1 
 
 '^ mciit of the mortgaged premises was madr, ainl 
 
 ., ^,„ ^ „..,., .. .. « collies of the writ, with tlic aiiiiiaiseliieni in.l 
 
 .{. (ertificato of Kesjislrar Trool «»f- , ' . .. , , , , , , ,, 
 
 r>- 1,^ !• iir T-i r> ^ e ^ description of the land. Were registered on M.y 
 
 Right of Way — Excess -Removal of gate — ., , , • <• i , 
 
 P, V . ^ • r, i, .■ i ,. i -ir '-'I. On the same ilav a writ of attachment, liihlir 
 
 Prior registry — Proof ol eertihcate — var- , . , .■,,.„ . 
 
 ,., ," ,r .. 1 Ti !> r. oor. r 1 the Insolvent Act ot I Ml!), was taken out aL;,iiii-t 
 
 lunee — ^"((/(/ V. .l^'./v ./.,/•, 1 R. & G., 339, fol- , , , i , i 
 
 , , ,„ , r 1 the niorti'a;;or, but was not delivcrcil to the 
 
 lowed— lo an action ot trespass dctcudaiil ,.,..?, , , , . , , , 
 
 , , , . .^ . , n 1 - Shcrirt iiutll after he had registi'l'ed the dipiu- 
 
 lileaded, ustitvim: under an alleged grant ot a , . , , ,. , , 
 
 . , ,' ■ ',>, . .,,. ,.', , luciits coniH'ctcil with tlie iiroceedings under tlic 
 
 riL'iit ot wav. I laintid replied excess, and ,. , , . , 
 
 ' , , ■ , , , , .Abscoliilllli,' Dcbtor.s Act. 
 
 iH'ovcd that a L'atc on the iiioiicrty hail liccu . , . . , . . , 
 
 ' , , , .,'■.., //'/'/, that the claims ot the assiiiiicc ot ;lic 
 remnved and torn down in the exercise o! tiie 
 
 ,, , . , ,. ,„ . ■.,. 1 , .- 1 ^ estate, to the surplus iirncccds, must pivv.iil 
 
 allcL'ed light ot wav. I'laintill and dctemlant ^ , ' , . ' ,. ' 
 
 , ,' 1 ■ , , . ■,- • • 1.1 over that of the attacliiUi,' ciiMlitors. 
 
 liotli cjamied tlicir adioining lots by convevance ,. .. , _,.,,,.,• 
 
 , , 1 , .■ ,' !•' 1 Section •_>4 of cliapter ,!), 4lli I!. S., is .uii- 
 ironi the same itrantor, and delendant relied on 
 
 ,1 , , 1 . , , , . I • 1 , trolled liV tlie Insolvent .\i-t. 
 
 the fact that lis deed, which comiirised the ',, , . , ,, ,. ,, . 
 
 grant nt thi^ right ot way over jilaintill s land, 
 had been registered long |ireviously to the regis- 
 try of plaiiiiitr's deed, but no evidence was <». Di'llvery to K<'Kistrar at his house- 
 given as t<i the registry or the date there<if. ff''''^ <lii't »'"' 'Icliveiy of an instrument ;U 
 
 IIi/il, 1,1 r .lames. .1., that under the decision the Registrar's house with instrtictioiis to tile 
 
 in (;i„il'l V. .Vr(;,;,ioi; 1 R. >\: C, .'«!», the cei- "!'« stitiiiient. 
 
 titicate shoiihl have been tendered and proved, Fl-^lin- v. /H-^liu/i it n/., ."> R. A C, VA. 
 if objected to, and further, that plaintiff was 
 
 entitled, under the evidence, to hold his verdict 7, GfTcct Of n'SislOrillS ilistrilllieilts, tllC 
 
 on the ground of exce.«s. registration of which is not contemplated hy 
 
 Pi r Weatherbe, .1.— 'Chat the locus of the the Act — .Mitchell, who had been the owner nt 
 
 trespass had not been identitieil by ilefendaiit three lots upon which the ])laiiitiff held imirt- 
 
 with the way as described in his deed. o''*?'-'^ foreclosed in the present suit, coiivcyi"! 
 
 McDonald, .1., (//-m iitiiii/. one of llie lots, known as the Chebucto F<iiiiiilry 
 
 Mi-Cvi-mm-k v. Ih iiiiitou, .'{ R. & (J., 71. lot, to Montgomery i^ Hudd by deed regislcieil 
 
 in l.S()(i. In IS7I liudtl became ins'-'vent, ami 
 
 4. Ccrlllk'ateof ri'Sistratlon "Pro:»f of - his a-ssignee conveyed his interest in t) I'lt to 
 
 In an action for breaidi of covenant of title Montgomery, by ileed registered in 1S7I, alter 
 
 contained in a deed from defendant to plaintiff, which, in October, IH7"-', a mortgage was iiiaile 
 
 the plaintiff put in evidence a mortgage on which by Montgomery to Stairs, which was recnnleil 
 
 was indorsed what purported to be a eertitieate in Novenilier, 187'-. Previous to lindd's failure 
 
 of registration. The execution of the mortgage Montgomery and Budd had entered into ni^ 
 
 was proved but the certificate was not proved agreement with Mitchell, reciting that pliiiiitifi 
 
 to have been signeil by the proper officer, nor held mortgages on certain ])r<ipcrty of -Mitclal'. 
 
 was it tendered as evidence independently of on which there was due .* Hi, (KK), that Moiitgnni- 
 
 the mortgage, ery and Hudd had purchased part of said l>nip- 
 
1177 REGISTRATION. 1178 
 
 oily, anil iis jHUt ot tlif cinisidciiitioii tlificfix- Liml to Scoit, as .■^lu•ll |hi-^i'.ssj.iii, in oidrr to 
 
 ■,i:.'rifil to assiimi! till' .-aiil luiirtgages and iflii'vy liavu nhuIi ertfot, nniMt lii' lU'tinfcl, actual and 
 
 MitcluU tlioittVoin, and tlit- inntiiuucnt con- <'ontiniioiis fof twenty yiMis ; and that all lionnh 
 
 t,iiiiLd(;c)Vunaiil.st<> imleinnit'y Mitclioil.liis iiuiis, Scott'.-i d.-. il to the dutLMidimt wasdidy icrnidcd, 
 
 ft.-., fi-t.in all anions wliifli might arise in uon- the land, allliongh ai-iniiicd after the jiid-nient 
 
 si'.|iienee of the said inoitgages (.oveting mole fe ilid in IS.'iT, «as hound l-y the jiid-nienl 
 
 liiid than that |)iiiehased fiom him, or in the moment it «as gianteil to .Srott, 
 eoii>ei|ilenee of the lionds giveiL with the said /.miiJiin-',/ l.iind Cn. v. '/'ii/'i/, l |;. i^- (,., |()| 
 
 iiiuitgages. This agreement was regisleicd, 
 
 ,H,.viouslytothe,nortg<^,etoSt,u..,l.nt.as ,„^ .M„,.,„,„t mw.lnl ill lilHiim' Of 
 
 tn,knownloh,mandtoUy!de,Hart.V(o.,who ,,,.^,^.^^^^„, Entate declare.l .nscdvent tn ITo- 
 
 wer- interested w.thhuu>nti,en.ortgage.nntil i,^^^, Court Execution may i.sue and be 
 
 .ft.Mthe mortgage was recorded The Master, .^tended on land bound by it -Balance due 
 
 liiiMiting as to tile disposal ot the siirii lis iiro- ,„ i i i i ^ . 
 
 ' , , , . ' ' "i'\v "e claimed out of personal assets - 3rd 
 
 ct'iils, treated .Mairs as the tiist iiRiiiiilnamei , n y „ -lo- ^ -n nf -»i u u ,r.,» 
 
 , ,. .... , , . ; K. »., c. U'/, s. (0 Ct. oth R. S.. e. 100, sec. 72 
 
 atliT the plaintitt, on the property over whic i \\-i • i .11 11 , . 
 
 ' 1 \» licre il indgment has been duly recorded il 
 
 111 t L'iven the iimrtgaui', and those claiming iindcr 
 liiiii il they had had. know ledge of theesisteiice of 
 tlic iiiirecMient when they took I'onvevance from 
 
 Ills mortgage extended, and exeeplmn was taken ,1,.. i;i' .:, ( 1 1 . 1 i- 
 
 ^ " , , , ^. , , the lite time ot a decea.seil party, and Ills estate 
 
 tu the report on the ground that etteet had imt 1,.,. ■ 11..!: 1. . 1 .1 i, 1 
 
 ' " has lieeii dcclaied insulvenl li\- the I'roliale 
 
 111 111 u'iveii to Iheagreemeiit registered plevionsU. ,. ,,,., ,,, ■ . , .i" 1 1 . 
 
 ,, ,, , , , , .. ' ' ""I' • 'i" execution may, mvertheles.,, be issued 
 
 Jl'ltl, that, although Montgomery, it he had , ,, 1 :, i . . . , 
 
 '^ o ." on such judgment, on a proper suggestion ot the 
 
 tacts on the record, against his executor or 
 
 administrator, but can be extended only on the 
 
 land bound by such judgment, 
 liiiii. uoiild liave been deprived ot any riuht to the u'.,,,,. 11' . . • 1 . , • , 
 
 , , , . ■ . '■ '"i.\ halaiice remain due to Mich liidi'iiieiit 
 
 Sill plus tuiids, the agreement 111 iiiiestion was not ,.„..);, ., ... 1 t .1 . 1 , 
 
 . , . . ' , creililor, alter a sale ot the laud under such 
 
 an iiislrumelit, the registration ot wliicii was .,v,„.„n,.„ 1,. ;. ...,»i 1 . i ■ 1 
 
 ,,,,,. . , e\eciition, he is entitled to claim tlieretor out 
 
 ciiiiUiriplateil by the Ivegistry Aet.nndthe: jtore ,,.• ,1,.. ,..„.., „ 1 . , .-.i 1 , , , 
 
 I ... ,, , , , ot the iieisonal assets ot the deceased, under the 
 
 tin- leuistratlon ot It could not be deemed to lie ,.,„,.; : . ,■ ,• -,. t .1 ■, , 
 
 proMsions ot .section ,(» of the I'robate Act 
 
 iioticc ot lis existence and contents to a jiarty /;{,.|| |{j,^. stits c I-'") 
 
 chiiiiiiig under a deed or mortgage for valuable , •),■.! li < . lo- -,, -., ,, . 
 
 ... , , ,. . ," , , '•>i'' '^- >., c. I_',,s. ,l», .same as .)th I!. S., 
 
 <..iiii?lilvratioii, and that Stairs and tlio.se elaimiiic . i,ui -.> , 
 
 ~ L. M W ', .S. t ^> I 
 
 with him, not having received actual or con- /iii,-n»r,> v. /.y,io,; I Old., (i.Sii. 
 
 ^tiiictive notice of its e.xi.-teiice when the 
 
 iimrtgaL'e was t ikeii. were to lie eonsidered as 41 »i,._4 . , „. 
 
 l,i„i,t lull inortgaL es unaffected by it. ,„ .,. t,, ^ .. . •"•" " 
 
 ° ,, ^, , ,, ,. , nient - Then assignment ot mort<iage -At- 
 
 taehing creditors do not acquire priority over 
 
 assignee -The defendant, hohling a mortgage 
 
 8. EITt'Ct of n'.U:lstrati<>ll The reCOrdill!; on certain real estate which was duly recorded, 
 
 iif a curliticale of jinlgmeiil gives the judgment a.ssigned the same to tli.> plaintitl's, after which 
 
 cifilitiir such a lien upon the land of the debtor defendant puicha.sed the ei|uity of redeiii|jtion, 
 
 il" til enable liiiii, without hiiviiig issued an exe- and the deed Wiis duly recorded. Attachments 
 
 eutiuii to proceed in Chiincery to set aside ii were then issued agidiist the defeudiuil ius iiii 
 
 ]in..i fiiuidiilent conveyiiiice of the land. iibscondiug .leblor, and the iHtachments, iis 
 
 OililirJI ,f al. \ Kiii-iiiinii II (il , well as the jiidgiiienls entered thereon, were 
 
 .liiliies, .{Its. placed 011 recoiMl Ix'fore the assignment of the 
 
 mortgiige. The attiiching creditors cliiiined, 
 
 «. .liMl.ijmt'iit rocordert binds iaiids miI)- ';';''■ -*i'' ^'^^^'^^^'^ siiUutes, c. 711, .sees, i-t and 
 
 se(,ueiitly acquired -111 Isti7 the ( rown granted "' '" '"'''' l"""'l.V' ''■* "g-'i»*l Hie i.ssignee of 
 
 t" i.iic ,Scotl a lot of kind, of which defendiint ^''^' '"•"■'o''o'*-'- 
 
 iMii hueii in adver.se po.ssession for ten years, ^'''''' ""'' ''"•' '"""■ttf'g^ ren.iiined ii lien on 
 "inl ill 1870 Seott conveyed said land to defend- ^'"' l""l>»='ty. whether the assignment Wiis re- 
 am by deed, which Wiis duly reconled. In ^'"'l^-''! '"■ <">t, und tliiit the attaching creditors 
 M.iy. IS.->7, plainlitV recovered judgment, which '""' ""' ^''"' 1"'"''^>' '^'"""'^^''• 
 Wits duly recorded, against Scott.'uuder which Haymo,„l,l „l. v. I.'hhnnl., \X. K, 1)., 4l.'.S. 
 the liuid in dispute WiW sold and jmrchased by 
 
 I'l'iiititls iit the Sheritl s side. 12. KiHonlcd Jti(i$;moiit dot's iiot bliid 
 
 /'/i/, that the adverse po.ssession of defendant land conveyed to defendant merely for the 
 
 <li'l nut prevent the Crown from granting the purpose of re-conyeying to third party — 
 
1179 
 
 REGISTRATION. 
 
 llhO 
 
 WluTfii .ku,l of r.iil LsliiH. wiis iiiqmif.l iiii.l an iustruintiit ifquiriiit! ivgislrali.m uihU r llif 
 
 ••xi'vMt.Ml t.. Kiv till'' to 1!., Imi K. fiiiU-l to jirovisions of tlif N"Vii .Votiii Ki'gistiy An (4tli 
 
 co,n,.lftc tlu. puivlmse, iin.l sul«t.,,ut.ntl.v H. .S: Kev. Stats. N. S., o. 7!), su... it an.l l!l| a..,! «u, 
 
 «;. puirlmsi-l ih.. ifal estulis and l.y ugRfim-nt .lufeati-.l l.y tlit- i>iior ifgislnUlon of the sMl.>f. 
 
 l.etwiHMi the iMitifs tluMl.'iMlto K. xvasrtc-nU'.l (|iR'iit [mivliasiu's coiiveyaiifu for viiluahk. .nii- 
 
 MinultaMfouslywitha.leiMlfron.U.toH. .M;.,iri suU-iation, an.l liiat, llifivfor.-, from the .lal,- „t 
 
 an aotion of fjoetinent l.y iniichaser at Sheriff's the registration of the eonveyante from i M- 
 
 sale un.lerjn.ignientreeor.le,! against K.,iuevi- well to the party through whom plainutl 
 
 ou>lvtotherer.,nliMgoflheal.ove.onveyanees, claime.l, the -lee.l of grant to .letemlant l.t- 
 
 //,/(/, that K. was a mere eon.luit j.ipe to eanie voi.l at law against the grantee m >.w\ 
 
 eonvey title from the vemh.rs to H. &(i., an.l eonveyanee ami all parties claiming throngh hii,:. 
 
 that ihe jn.lgment against him .li.l not attach .S. That to .lefeat a registered .lee.l liKiv 
 
 to til., real estate in ....esti.m. must he actual n.,tice or fran.l, an.l there wa. 
 
 O.nn V. l.t/iirli,-2 li. .'t C, 400. no actual notice given t.. plamlitl ni this case 
 
 such as to .lisentitle him t.i insist in e.juity <'i\ 
 
 ..« .. I . .1 . ....<i.»» »<• Kh u w ,> his legal priority ae.iuire.l under the Statute. 
 
 13. KoKUIratlon, notice of 4th R. S., t. ^ ..,„„._That up.,n tl,. 
 
 79, ss. 9 and 19 - Easement, constructive ' ' ">""■ ' ,; „ ', ,,. 
 
 .... ,^,_., Dlea.hiiL'H as tliev stoo.l .>n tlie recoiil, tlii' 
 
 notice of- I'lainlitlpuicha.sed in 18<'_» a pr..i>- P'^a.i ng>. a u j ,:,,„,..,.:„, ,„ 1 
 
 ,.,.,, . 1 , ,i,„ iiueslwu of the Registry Act .li.l not all.'^c, ami 
 
 ertv a. II niiL' dctemhints property anil t.) the I""- ■•' " •' . • i ,• i i i , 
 
 •^ ' b ,,,,,, 1 I that as the nenmlirance complame.l.)! hail Imn 
 
 n.irth .pf it. In «.>!»( a. Iwel, wli.i liien owned umi as ini- i . . i 
 
 " . , , , , , le;/ailv created n 1S..!», Its mere continuaiiaMlM 
 
 the northern property, granted l.y .leed to "•«""> 
 
 n.it conslitute a trespass, and that the action as 
 framed sh.iuld n.>t he snstaine.l. 
 
 AVs V. Hiintn; 7 S. ('. H.,-'s!l. 
 
 14. Rt'Klstratloii of deed not prima lack' 
 
 ilcfendaiil tlie privilege of piercing the soutli 
 
 wall of his huihling, carrying his st.>ve pij.es 
 
 into the tlucs, anil erecting a wall ah.ive the 
 
 s..utli wall ..f the huihling to form at that 
 
 heiuhl the north wall ..f .lefendaiit's huihling, --- ;--;■ .■•,,; 
 
 *= , , , • „• ...1 ■ ' 1 nroof of deliverv— lie .aiustion in an actm 
 
 which was higher than plamtitls. Ihis .lec.l prooi "' uciivcij. i f , , 
 
 1 1 .1 1V-I .,,,,1 tlw. „lM.>tit|-s of ejectment turned on the execution of a .1ml 
 was not recorde.l until IS. 1, an.l tlie piiiiniiii s j 
 
 wasn.ii iLcoi.ie.i imii . , i from one H. M. to H. M. L'laintirt pro.luc.aii" 
 
 solicit.ir in seare i ng did n<.t search under in'ni one n. . i. i i 
 
 S01UU..1 sea.... fc, f ,1 1 1 other evi.leiice to the jury than the ceititieil 
 
 Cal.lweirs name after the registry ..f the .lee.l «- J •> , , ^ 
 
 1 f /• 11 . 11'. c.nv of the Ketiistry, uinler ueviaeii ."muiuus, 
 
 hv which the title passe.l out of ( aldwell s ^"VS '■'"' ^ \ , .i . i 
 
 oy wnicn mu i se..;. SS ; and the grantee swoic tliut liu 
 
 possession in IWii, an.l did not therefore ol.servo ^ap .m, . b 
 
 r ' ^ ■ c s ha.l never seen the .lee.l from Ins tatlici. liii- 
 
 the deed cleat iiL' the easement m favor of na.i ne\ei sctuv 
 
 till .ittii cieamifc .hulu'e wlio tried tie ciuise left It to the jury to 
 
 defen.lant. Defendant s northern window was '"'"b^ "" '""- ■ ,• • '; i „ „ 
 
 '*" .,,,,. , . , tiiid fr(.m the recistrv as i.jvmrt /ftfit evuluiice, 
 
 so closet., plaintitrs wall that it was plain t.. nm,, , om ine y \ ',..•' 
 
 , . , 1 t 1 . 1 1 that the .lee.l hail lieeii execute.l. 
 
 one narrowly ...serving It that defen.lant ha.l mat uie .icc . . . , ,,,„ 
 
 " •> b , .,,„ i„f,,„].„„'„ //,/,/, that thl.> was a niis.lireetK.n, ami llwl 
 
 no separate northern wall, ami the defendant s " ' ; l..liv..,.v .,t the 
 
 ' , , . .,r- 1 1 1- .:, , there was n.. evi.lence of the .lelneiy .it me 
 
 mirthern wa ahove phimtiir s l.uilding resting Y, , ,, ., ,. ...■ .,,, 
 
 tipon plaintirs s..uthern wall, was ..hvious t,. 'lee.l. Oa.unon v. Jodr.y, 1 K. .V t ., .m. 
 
 anyone lo..ki.ig from the ..pposite si.le of the ''^^^^;^^^i ^^ ^^^ ^^ ^i^^u.^^,,^^^^, ^...^Xcl. 
 
 street. \ 
 Utid, that the deed creating the easement 
 came within the Registry Act as "attecting 
 
 Svt EJEtTMEM, 
 15. Registration of Shipping 
 
 S>.t SlllPPlXi. 
 
 16. Registration of transfer of shares In 
 
 lands," that plaintiff, however, was not l.oun.l 
 
 l.y the registry ..f it in 1H71, although previous 
 
 to his purchase, the title having passe.l ..nt ..f 
 
 Caldwell in KSC."_>, but that plaintitt' must he 
 
 held to have had notice of the easement as the company-^^^ ^^^^^ ^^^^^ COMPANIES, 1- 
 
 encroacliinents were plainly visible. 
 
 A'oss v. Hnnttr, •_> R. & ( i. , 44. ^^ Registry Of a deed is not equivalent to 
 
 Oil ajipiul to fh(. Siii>rum Court of Canada, \ enrt.lment under the Statute of Uses so as to 
 //, Id that the continuance of illegal t.ur.lens , transfer the possession. ^ 
 
 on plaintiffs property since the fee had been j Sh^y ^> «^- v. Chishotm, James, ..•.. 
 
 aciuireil by him, were in law fresh ami distinct .^ ^ .. ■ ,j„ 
 
 trespasses against him, f..r wiiich he was entitled 18. Unrecorded dccd avoided hy a jud,- 
 
 to recover .lamages, unless he was bound by the ment recovered subsequently, but regwt«rett 
 
 license or grant of laldwell. I first- Possession of grantee-Notice to ju g^ 
 
 ■_'. That the deed creating the easement was ; ment creditors - Construction of Ke\isea 
 
lisl 
 
 RELEASE. 
 
 1182 
 
 Statutes (4th «eriea), e. 79, s. 22 -C liiiimr 7!t, 
 ol till' Iti'visfd Statiiti's ( nil sfi ii'>). s. •_'•_', iviuU : 
 " A jiiil>,'iiii'iit duly ii'j.'i.sloiiMl iiiiil dxiki'tcil sliuU 
 liiiiil tlif liiiids ol till' piiity a^'iiinst wlimii tlit^ 
 jllil;.'liiclit ^Iliill liiivf liiisM'd, fiiiiii and atliT lllf 
 rei.'i>try tlii'ifot in tlif (.•diinty, nr dif'tiitt, wlieie 
 the liiiids arc, as fired iially as a liicil'tgugi', 
 MJHtliir mirIi lands slisU have liccn ati|uin'il 
 liflnriMir iiftt'i' the regiHtciing ofsueli jiidgnient ; 
 ami deeds, or nic)itj.'aj;es of such lands duly exe- 
 iiitud, liut not registered, shall lie V(pid against 
 the judgtncnl creditor who shall first register his 
 jilill.'liient." 
 
 Tlie IJank of Uritish \oitii Anuiica recovered 
 II judgnient against one Merriani and otiiers, 
 .liiliiiaiy iMst, IHTii, ami registeied tlie judgment 
 I'll tiif following day, 
 
 0)1 the 23rd Ainil, IST.'J, Merriani conveyed 
 ccilain lanils to one Fraser, under whom defend- 
 ant claimed, who went into possession and 
 iinjiiiived the land, and was in possession at 
 the time of the recovery and registry of the 
 jiidj^'iiient. hut neglected to record his deed 
 until January 2Sth, ISTO, some days after the 
 icgii^tiy of the judgment. 
 
 Oil May .Ith, 187!), after execution had lieeii 
 iliily issued, the property was sold at Slieritl''s 
 >.ili' to plaintiff, the general manager of the 
 Hank (if Uritish North America, who hroiiglit 
 ijtvtiiiciit. Neither the plaiiitiU" nor the hank 
 of wliich he was manager had actual notice of 
 the cmiveyance to Fraser, or of the fact of pos- 
 M<siiiii, until just jireviously to the sale. 
 
 H'hl, j„r McDonahl,.!., McDonald, ('. J.,and 
 >initli, .1., eonenrring, that the jirior unrecorded 
 ileuil to Fraser was avoided hy the registry of 
 the judgment, and the [ilaintitl' was entitled to 
 I'fCdver. 
 
 Wfntlierhe, .J., (//.«xr /(^i»(y. | 
 
 ilriitiUiy v. /1/ukli , 7 R. & ('•., 27 ; 
 7 V. L. T., ,■)(». 
 
 in tlieir view of the evidence fioin the .liidge, 
 found that ilefendant had heen guilty of n-'^li- 
 geiice in relying on the certificate, instead of 
 having the title searcheil hy the Kegistrar. 
 
 /''<• Mitchie,.!. — Kveii it the .lefeiuhmt had in 
 his letter rei|nested the itegistrar to seanli the 
 title, he was to hlame, as the reply of the Kegis- 
 irar contaiiieil no reference to the title, and did 
 not sho\\- that a search had lieeii made. 
 
 Si nihil , defendant would have acteil with 
 reasonahle ililigence had he caused a search to 
 hi,' made hy the Hegistrar, notwithstanding want 
 of diligence hy the {Registrar. 
 
 ShikIoii v. J/c/m , 2<l N. .•<. K., 
 
 (S It. & (i.), .-.42. 
 
 20. rnrci-ordcd deed - Subsequently 
 
 recorded mortgage given priority over— J. K. 
 .McL. heiiig entitled, l>y right of his wife, to an 
 interest in certain teal ami personal juopcity, 
 heing an estate of wliiili M., the wife, was one 
 of the heirs, they joined in a mortgage to plain- 
 tiff of all their said interest. ( Jn plaintiff seeking 
 leiiayment of the amount loaned, defendant, 
 one of the executors of the said estate, resisted 
 the claim, on the groinid tliat six years previ- 
 ously J. R. McL. and wife hail conveyed all 
 their interest in said estate hy deed poll to hei* 
 mother. This deed was never recorded, and 
 the plaintiff did not know and had no means of 
 knowing of its existence. The mother, although 
 aware of idaiiitiff's mortgage at the time it was 
 made, concealed from him the fact of the deed 
 to her. 
 
 Jfi/il, that having so concealed from the 
 lilaimiff what it was her duty to reveal to him, 
 the mortgage should he given ])riority over the 
 deed jioll, and plaintiff's claim satisfied out of 
 the estate. 
 
 Wi^l »■. Mai III "OH 1 1 (il., ;{ N. S. I)., 429. 
 
 1». Solicitor- Skill and diligence in in- 
 vesting money— Search of title by Registrar 
 of Deeds -Defendant, a solicitor, jnactising at 
 iiiidgetown, invested money of the plaintiff on 
 I innperty which was afterwards j)roved to have 
 'ii'tii iiicumhered, in conseipience of which plain- 
 tiff sustained loss. The defeinlant did not per- 
 "'iiiilly search the title, and the evidence was 
 ^t'litiicting as to whether he had rennested the 
 Kegistiiir of Deeds at Weymouth to search it or 
 'lii'l relied on a certificate of the Registrar, 
 ^*hi(.li was afterwards found to he a forgery. 
 
 Hie .Judge who tried the cause, without a jury, 
 f'liiiul that defendant was not guilty of negli- 
 S«ice, and gave judgment for defendant. 
 
 On uppeal, the Court in banc differing, -ewiWi , 
 
 REL.4T0R- 
 SVt PKACTICE. 
 
 RELEASE. 
 1. Appeal bond on appeal n'om Justice of 
 
 Peace— An Attorney one of the sureties— 
 Waiver of claim against surety— An appeal 
 heing taken from a Magistrate's decision, the 
 defendant and one W., an attorney of the 
 Supreme tourt, became sureties on the appeal 
 bond. On the giound of W. being a surety the 
 
11, ^:{ KKLKASE. IIM 
 
 lioihl Mils litia im:;iilai' .iiid the iipixMl tlis- from iloffiiiUiit> llu- ImI.uhc iliic oh tlir f.nr nf 
 
 iiii»!toil l>y tlic SiiiMciii.' Coiut. I'liiiiititV tli.-ii the iiotuH iiftur ciu.liliii),' llif i'l'J'J Kn. 
 n.soil.d to liis o!i;j;iii;il jinl^'mriit . lUul tlif cxr //./«/, )»•>• Yomi^. ('. .)., Desliiiiivs aii.l Wil 
 
 .•uiioiiliciiiKi<aiiinf.liiiisiiti.-<liiMl,«ii.MliU'f<'ii(liiiit kiii.s. .1.1. (lilis.s iiiid Do.ld, .1.1. dU^>iil,,ni,, 
 
 Hut 
 
 ,„, ,1,,. |„,|,,1. tllL. H. IJ. Co. Imil lllisohllely ilisrliiii:,'r.l th,. 
 
 //</(/, lliiil III' fould not ircovci, US |p\ llic ilffciiiluiits ffoiii nil lialiility on ii.coiiiit ol the 
 
 (.•oilf.se he hull tilkfli he h.i.l >.\iii\ r.l ;ill liyht of notes, ami 'hiit ihf iirtion eoiii,! not !»■ iiniii 
 
 cliiini iigiiilist (U'fenil.mt nielei the ii|ipf:il hond. taiiied. 
 
 MrX.'il V. Moi-'/k'Ii-', :i N. >>. I'.. ;{I4. /'./■ Wilkiiis, .1. 'I'liiit hy the ai(e|itiiiirc ,,i 
 
 the iiiinposition, the H. ii. Co. Iieiaine viitiwlly 
 '2. ('OinpOslUoil deed At'tT|>tailCt' of |„„.ti,,H to the .omiioiitioii dee.l, and liouml 1,\ 
 
 eonipo.sition Ertfct of Defendants weie the .iH it„ tcinis. 
 
 inakefs of two pfoinissoiy notes to A. iV Co., /,f/,c.o// . / ft/, v. Sulli r 1 1 nl., lOld., T'.I.VT.H. 
 whi'li the lattcf indorse.l to the Halifax iJaiik- 
 
 in.L; Company. I'.efoie the notes l.ecame due, .j^ EXPCUtlOIl Of -EffCt't Of llOtC aU|HMMl('(l 
 lioth defendants and A. .V Co. lieeaine iii.solvent. ^^ aigiiature -Receipt of composition- Tin. 
 A eoiii|io>ilioii died was exeeiited lietweeli de- |,|||j|n|)y ,.x,.,iited a release to the iiiikil uf ii 
 feiidaiits and their i-redilors, hy which the latter |.,,,.),(j|| promissory note, on which defeiidaiil wis 
 a-ived to leceive ei;j;hl shillings and liiliepeiice ^^^^,^^ as indoisef. 'I'lie release was in tlie iin.M 
 in the l)i>uiid, ill full of their respective delits. j,L,m,,.ni terms, which were iidmittedly wi.K' 
 'I'l.is deed Wiis not executed hy the H. 15. Co., ^,,„, „,_,], to imhide the note sued on, hut it \v:is 
 hut the Coiiipaiiy took new notes from the de- „jy,u.,i j,, the following fiirin :—" 'I'he Kxcliaiigi' 
 feiidaiils, eiiil.raciiig at this ratio all their clailn^s y^,^^^^ ,,f Varmouth. X. S., for and in lespeet (,f, 
 auaiiist the defendants, on proniis.>oiy notes, ,^,„i ,,„iy f,,,. ,i,|,l i,, n...<|,ect of the several claiiih, 
 including the two note.- in ipieslion, and gave ,„,t^„,^ j.onds and .securities for inoiiey mentiumil 
 the following receipt: " Hiilifax Hanking Co.'s ,i,„i ,.^,fi.,.,.ed to in the schedule of tiie Kxcli.uigi' 
 Otiicc, Halifax, •-'4th April, 1S.\S. — Keeeived p,,,„k ,,f Viirmoiith, X. .S." The notes sued nn 
 ffoin Messrs. .Salter & Twining the sum of onu ^^.^^.^ ,,,^, inelud.ed in the schedule, 
 hundred and twenty-two pounds, ten sliillings, jj^^^/^ ^^^^^^ jli^, j,,,.,,,^ ,,f ji,^, „iu„atuie diil imt 
 currency, lieing the composition of eight shil- ^,„„t,.,,l the general provisions of the ielea.su, ami 
 lings and iiinepeiice in the pound, on their two ^j^.^^ j,lainlills could not .set u]) that their e.xoiii 
 notes of hand, in favor of Messrs. Allison A Co., ^j^^^^ ^^j. ^j^^, i„^tniiMent was void, after having 
 uniountiiig to i'.'SII, and discounted l.y Messrs. ,.^,^.^.i^.^,,i ,„„||L.y from the estate on the stiength 
 Allison .S: Co. at this l.ank, the iiotes l.cing „f tlie assignment. 
 
 retained for the purpose of receiving a divi- y/j, ;,xch(ui<jr Hank v. ISbihi', 
 
 delid from the estate of Alli.son & Co.— X. T. r, 1^, ^ifc ( I . , .'aS. 
 
 Hll.i., Ca.v/nV,-." , ! 0„ npi.nhnl'n,-,, Cmmil, 
 
 The cashier of the H. h. ( o. stated, tluit " 
 
 the lu.tes were left in the bunk l)y defendants, Xot every attemi.t l.> a form of executi.m to 
 of theif own accord: that had the notes l.een restrain the full operation of a deed ,;u, In 
 reouired l.y the defendants, they would have treated as a non-execution of it. Where imIwI 
 been delivered to them, the bank consiilering of assignment by debtors to a trustee tor the 
 llie defendants whollv discharged of any further benefit of all creditors who should execute tin- 
 elaimson then, on account of these notes." He deed was executed by the ,.hiintirts, who im 
 als., stated that there was m. reservation. It pcnded a note that they executed only m rt^pi' 
 appeared, however, that one of the defendants, of certain claims scheduled to the deeil ;ii 
 at the time the notes were so left, .said: "The amounting to 17:<,.-..S1, and it appeared that-ii 
 
 bank is fully entitled to receive the whole .seiiueiitly thereto they received a sum ot 
 
 amount of the notes, and with that considera- from the trustee by virtue of their execut 
 tion I leave them with you for the purpose of the deed, 
 
 iccoveriu'r from Messrs. Alli.son (A .t Co.) the HM, that the idaintitfs were b..u 
 dirterence^ffoin their assets." note did not amount to a refusal to execut.': 
 
 The H. 15. Co. .subsequently obtained ten and the plaintitfs having received paymeiiniinlii 
 shillings in the pound on the face of the notes the deed coidd not be heard to repudiate it au'l 
 from the estate of A. & Co. (neither A. & Co., deny their execution. WUklnsoi, v. Awjln-di' 
 nor their assignees, it wouhl appear, being jhniian (lohl Muiii„j Comimiiii (\^ ^i. V>; >-'' 
 aware, at the time, of the transaction between held to be inapplicable. 
 
 defendants and the bank), and the action was; Th Exrhawj, liauk of Yarrnvnth v. /i'•'J•«• 
 brougllt by the assignees of A. & Co. to recover ! •'» Ai.p. t ^i^-. - 
 
 ■lo ilp 
 
 ■d 
 
 lillii 
 
 ■uh- 
 
 imliiv 
 
 idli »t 
 
 mil. Till- 
 
UN.-. 
 
 RELKASE 
 
 118U 
 
 4. (luarantee KelcaMc by vuriins terniN /till hoi.iiny tiic inifwai note, whidi was ,i 
 
 of a;;reenient guaranteed H. K. K., having j iic),'(.tial)le iiiHtruim-nt. 
 
 ' I' <iii|)!..y.!.l l.y .Iffi.ndant to l>uil.l a vessi'l //-A/, r«'Vci«inK the .l.'cisioii of .(,,|,nstom., .1., 
 
 fni him, uniidoy..,! plainlitl' as a «ul.contnu'tor that the plaintitf coiilil not mov.T on tin- note 
 
 t(. plank iii'i-. Ik'fcmlant fxeiMitt'd ami ileliv- hiuhI on. 
 
 iicl III plaintitr a gnai'antue, lia.-cil npoii an 
 
 au'ii'iiiiunt lictween the latter and !f. K. |{,, 
 
 fur tin; pi'ifoi'niance of the Nulicontract, whieh 
 
 iiiiil heen ilra«n uj) liut not siyneil. A elaiise 
 
 vaiyiiij,' its terms havin),' heen added to the 
 
 aj.'ieciMent .siihseipient to the ^'ivinu' of the 
 
 L'ualantee, 
 
 Miirraif v. fla^loiniHiiij el nl., \ \{. & (;., ;!»•». 
 
 H. Kclcasf by agiiit without authority - 
 
 Defendant, I). Mel)., l„.i,i^ part owner, with 
 piaintitl and the other defendants, of a hanpie, 
 «as anthori/ed liy the othrr owners to sell her, 
 md dill so, depositing,' plaintiU's share of the 
 
 ,/ ,, ,, , ,, ... . f ., ■"• ""' ••^|"'-"i"'o |iiainun s snare or tne 
 
 //■/'/, that the ellect of the variation was to nioeeeds to l.w ,.wi. ,.i-,..lif ;. .1 i.- . i> . 
 
 I 1 t 1 . r 1- 1 i- , pioteeds to nis own eredit, in the I'lelou liank. 
 
 1('\t' I l>rciljl:iMt iif It:il,llll f ..II tl.. *.... „ 
 
 nliive defendant of liahility on the guarantee 
 ThilH-tlmii V. /'i/irioii, '.i N. .S. {)., •j-ji, 
 
 5. or cause of action Attorney's llvn for 
 
 cosU The (.'oiirt will not set asi<le a release 
 (il.taiiied, jjending suit, hy defendant from plain- 
 litf. nor compel the defendant to pay plaintitl's 
 iiltiMiiey his costs, where tiiere has heen no 
 ("llu>iciii. 
 
 Jnliiis/oii V. Miilhixoii, dames, !CJ. 
 
 «. Ofcausc ©faction Solicitor's llcn for 
 
 I'laintitr wrote to one S. ( '. in these teiins: — 
 " 1 want you to put my share of the money in 
 the hank, to my credit. 1 have written 1). 
 (meaning I). Mel).), stating that I have author- 
 ized you to ih)so." S. ('. hiid, hcfore this letter 
 lame to him. drawn the money from the hank, 
 the manager having advanced it to him on his 
 own ehei|ue; liiit ilefendant, I). .\!cl)., upon the 
 letter lieiiig shown to him l.y ,S. (\, signed a 
 relea.se to the hank from any claim on account 
 of the j)ayment of the money to S. ( '. 
 
 //'/'/, that I). Mel), was not justitied in re- 
 leasing the hank ; that in iloing so lie assumed 
 
 „ . „ . " a '"^ ......r. , i,Mt, ,,, iiDiiig wo lie assumeil 
 
 costs -Satisfaction piece alleged to have been tl,,. liahility which the hank ha.l ineurre.l hy the 
 given in fraud of-Held good in absence of nnwarrantahle payment to ,S. ('.of the money 
 proof of collusion - Co.sts -- Appeal from a I placed to his (Mcl).'s) credit, and that plaintitV 
 u.-riMon refusing to .set aside a satisfaction i.iece was entitled to a decree for the am.mnt of his 
 allej-'ed to have heen given in frau.l of the ; sha.v deposited in the hank. 
 
 |4iii)ilitr's .solicitors for the purpose of depiivin^ 
 lliiiii of their costs. I'hiintitl' had olitained a 
 iiiilgiiieni against defemhint, from wliich defend- 
 imt had appealeil. \Vhile the appeal was pend- 
 ing, one K. 'I'., without the knowledge of plain- 
 mlV solicitors, for an apparently inadeciuale 
 ^"ll^ille|■ation, olitained an a.ssigninenl of the 
 jiiiliriiieiit from the plaintilf, and a .satisfaction 
 inite, under the authority of which the juth'- 
 iiiiiil was discharged two days later. 
 
 It did not aj.pear that lliere was any collusion 
 '11 the pa.l of the piaintitl' and defemlant to 
 'Iti'iive the solicitors of the former of their 
 
 ttiSt.<. 
 
 /AW, that the a]ipeal must he disnii.s.sinl, liut 
 'II view of the peculiar nature of the circum- 
 KiiiKX's without costs. 
 
 MiFnrlaiii v. Smi'/i, 7 K. it «i-, .■')4I ; 
 SC. L. T., 04. 
 
 •• or right of action on note by accept- 
 
 anct of renewal — At the maturity of defen- 
 •laiifs note to plaintiff for !?-_'(j;{.7.-) the defendant 
 gwe plaiiititta renewal note for jSI'iO and prom- 
 I'lii to p,iy the balance in cash next morning, 
 "lii'.li plaintiff said was all right ; hut on the 
 saii-.e day the original note was sued, plaintiff 
 38 
 
 /I'-mi" V. M f Donald It al., K. K. 1)., 17. 
 
 I 0. Release, decree to execute - D. made a 
 
 I niortgage to defendant's testatoi' to .secure the 
 I payment of three promissory notes. The notes 
 I were j)aiil and handed over to I)., upwards of 
 i twenty years before this action was brought by 
 1). to eomj.el defendants to execute a release of 
 the mortgage. During the sui)se(|Ueiit period 
 no payments were made hy 1). or <lemandeil of 
 I him, and the estate r)f testator was settled 
 without any reference to the mortgage as an 
 outstanding debt due the estate. After bring- 
 ing the action 1). became in.sidvent and made 
 au assignment under the Insolvent Act, and his 
 assignee inter vening, under an order of the 
 t'ourt, became ])laintiff in the suit, 
 
 f'lhl, that the defendants must he decieerl to 
 execute a release ofjthe mortgage, though with- 
 out costs, they nf)t"having oj)posed the jHoceed- 
 ings of plaintiff. 
 
 IMI, A-'xii/Hfj:, V. Jlrowtiel riL, 
 
 R. K. \\, 20. 
 
 10. Release of mortgage -Evidence of 
 
 memo, by testator to eftect that mortgage was 
 not payable to heirs, executors, &c., not evi- 
 
1187 
 
 REPLEVIN. 
 
 \M 
 
 deni'e of releaae -I'laiiititr, ^i.s iitlniiiii»tnitiix, Kiiilwiiy m Hnlifix, wlio, at tlu; inHtuiuc nt ||., 
 
 mmglil to foiril.isc ii iiioit>.Mv;i' for fJIKI iim.li' rffiisi'd K. .Ifliv.T tlif ^oods. 
 
 l.y .U'tfiidiiiit, who, in liis nmwvi; Htt oiu a //,/,/, W.iitlii'il.i-, . I. ,»//».-" /i/i/i./.tlial uu'l.iilif 
 
 HerifHof tl•aIlHactioll^^\vitlltlllMU•cl■a^'l•llilll•^•«aI■.l ugii'i'iiii'iit aii.l (omsc of .UmIIiih l>ftw.iii tliu 
 
 to the iiiortfe'UK*', and fmthiT alligi-d that dt- |.artifs M. ha.l an f.inital.le tilh> to tin 
 
 itasfd inoimajjeL' had dclivt'ifd to liini a niiiiio- 
 lanihiin, si^ini'd \>y him, as follows; " T hi' 
 nioitgagu which I indd of W. .1. W., iK-aiing 
 dati', itf., for i-'tKt, JH not payaliK' to ni.v ln'iif, 
 I'Xi'iiitors, or adniinistialois after my dvat 
 
 which waH ti'auHf erred liy the indoinfmtni loihi. 
 plaint ilf. 
 
 •_'. That H. in [mrsnance of the agrctnanl 
 havinj,' taki-n stejm to put the ^oods in thi pn,. 
 .se.Hsion of M., the fftft't of the whipnitMil ami 
 
 I. \V. \V." The memoian.hnn was not pro- other acts taken to>,'ether, gave M. the leyal as 
 
 diued, l.ul on pr.xif of h>8» secondary evidence well as the e(iuital.le title, and placed tiieil.tcii.l 
 
 was given, which the Judge considered of a sus- ant in the position of wrong-doer, 
 picious character. -I/-", tl'^t after the passage of the .hidicatnio 
 
 //«/(/, that the luem.irandum, even if there Act the dudge presiding at the trial was ImmiimI 
 
 were no suspicious circumstances aliout it, would to give etVect to the cpiitalde rights of llie [mi- 
 
 not operate as a release of the mortgage, either tiesthcnigli the causehadl.een at issue prcvi(ai>iy. 
 
 at law or in eipiity, ami that plaint ill' was en 
 titled to a decree. 
 
 U'diidiror'h V. W'odilirorfh, K. K. 1).,."W7 
 
 REM- 
 •s c L.\>DLOR» AND TENAM. 
 
 REPLEVIN. 
 
 Mtrhr^nu V. Mrhoiialil, (5 II. it C, •.'4'.' ; 
 
 C. ('. I,. T,, UX 
 
 Oil ii/i/iKi/ fo Ihi Siijii-i nil Court (ifCaiiii'lii, 
 //•til, atiinning the Judgment helow, Ilniiy, 
 .J., iliMiii'iiiii, that the goods were .■sent to liiu 
 agent at I'ietou to be forwarded, and that lie imd 
 no other interest in them, or right or duty c(jii- 
 nected with them, than to forward them to llicir 
 d'istination, and could not authorize the agent iil 
 Halifax to retain them. 
 
 IIilil, (ilw, that whether or not a legal title 
 to the goods passed to M., the position of tlie 
 agent in retaining the goods was simply lliat nf 
 , , . <.„i„ a wrong-doer, and M. had such an eciiiituhle 
 
 1. Agreement to forward goods for sale \^ ^„^.,, ,.„,,, ,„„i ,ight to the posse. 
 
 topayadvances-Equitabletite Transferor - -'-^^ a.s would prevent the agent f,on, 
 
 -Replevin - Bill of lading - Judtcature Act ^ ^,^^^^^ 
 
 —Enforcement of equitable rights under— " 
 
 H. \ M. entered into an agreement, under which j 
 
 M. was to sui)]i!y H. with tin plates, money, 
 
 etc., to carry ou the business of packing lobsters, 
 
 and H. was to forward to -M. all the goods which 
 
 he should pack, in order that the supplies might ^.^^^^ ,^,„i plaintiff did not reply, relying mi 
 
 be paid for out of the proceeds of the sales of , ^j^^ statutory replication denying the facts 
 
 the goods, M. being paid a conunission for sell- , ^Yl^^^,^\ j,, the plea. 
 
 ing. This agreement was acted ::pon for six, Htlil, that a replication was necessary to put 
 
 years, nt)t only in relation to lobsters, but also j ^j^^ ^.,^,,3^ ^^^ issue. 
 
 in relation to beef, which H. was packing during ^eave given to the plaintiff to tile a replica 
 
 the latter part of this period. At the end of , ^.^^^^ 
 
 1882,H.wa8indebtedtoM.from!?7,000to$9,000 Breniuer v. IVttUuct, .S R. &l.,4Sl. 
 
 (JC. L. T., :iS.-p: 
 V2 .s. (,". R., 417. 
 
 *2. Avowry for rent -Replication neces- 
 sary — Defendant in replevin avowed fur 
 
 on the account between them. In the month of 
 December of that year, H. shipped 180 cases of 
 beef, of the value of .*1,(KI0, on board a schooner 
 
 3. Avowry or cognlzance-Not a plea 
 
 within 8. 243, P. A.- When the plaintitf m 
 
 beet, ot tne value 01 .7i,uviu, on ooaiu a BVIH.U1.C. t..- — , ^ „io.„li„,r to 
 
 bound to I'ietou, consigned to the freight agent , replevin proceeds to trial ^^ ^^Pf '*;;, 
 of the Intercolonial Railway at that place, but ; the avowry or cognizance of/lef""^'"';' ' 
 addressed to M. He wrote M. informing him mis-trial, an avowry or '^°H;"^''"?« ".^. '^ '^l,, 
 of the shipment, and forwarded to him a bill of j plea within the meaning of section M 
 ladingof the goods, on the margin of which M.'s Practice Act. ^, , , , 9 xhoni isn. 
 
 name wivs indorsed. M. transferred the bill of | Skinner v. Clarke el al., 2 Ihon.., 
 
 lading to plaintiff as security for accommodation j -pnlpvln- 
 
 indorsements, and plaintiff brought replevin 4. CommOH laW 'e'n**^ ?Vs , 104, 
 against the station master of the Intercolonial 1 2nd R. S., c. 134, s. 171-Ot. oin xv. ., • 
 
llfS!) 
 
 REPLKVIN. 
 
 1190 
 
 0. XLV., R. 1. riiiiiiiitr, wlio «,(>,,« ti.Tcn.ii timl "hv imvsuih.mI i|„. ,,ninuiit f.iiHK.nijjir.iii.l 
 Amrn.iiii li-l.iiiK vr>s,.|, ,.Mr..|l,.,i „t ll,,. pmi ,,t wImitaL'.' wa.s c„it..,I, ;.h.l Ir. ,.iKl,mi..l ii .•l.n,ue 
 Vin,.l Haven, it, the Stan- ..t Maiiir, put llir.l.- f.,r il„. ai.i.mnt." I'laintiU' tf.stifiu.l tli.U this 
 fHHlanl in p<>^M■sKir,ll ..f her as luasttT, for a ainniini wiiH piiiil iiiidrr pi..tcsl. 
 
 //'/'/, llmt ilffi'ii.laiit- (iiiil.l not l)f privluili'il 
 from Hliowilij,' tlial tlicir lini i.iiiaiiieil, itml that 
 ilu' vi'idiit for pliiiiititf iniiNt lie wt-t iwiile. 
 
 L'lirsf.ii V. (•(jrluft ,t III., •_» K. i<c (i., ;(•_'•.» ; 
 '2 C. L. T., !»4. 
 
 «. Ilrmand nnil riTiisal not rniiilNlte 
 
 where posseHHion wronfjlul Tlic writ h11.m,'ciI 
 only an nnjiist (Ivttnticjn, ami no unlawful 
 
 tisliinK voyajji! from tliat port. 'I'liu whipping' 
 
 iiiiidcs iiri.viilcil that the (lefenihint ami tin> 
 
 ricw shoiilil lie paid with, and inturcstcd in tin- 
 
 ri-!i to lie eiuii.'ht in the prosecution <>{ the 
 
 V(>yii;,'e, in certain speoifiud pfoportioMH thereof. 
 
 I'liiiiititf, lieeoniinu' dissati.stjed with the deten- 
 
 iliiiit, through an ai.'ent demanded possession of 
 
 the ve.isel and lish. Defendant replied ; -- 
 
 "There is the ves.sel on the flats, you can take 
 
 her; hut an for the fish, neither yon (the agent) takiuL'' 
 
 iK.r Lane (plaintiff) shall have it. I am going //,/,/ ,i,,, ,i .• i t i , ■ 
 
 ,, I, , ,, , .. , , - //'''/, tliat the possession ot defenilant lienig 
 
 III M'll It to pay myselt and erew. ' a ntitl' „„. , „■ ■ i , . 
 
 .hereupon l.rought replevin for hoth vssel anil ;.::;';:;,"' "" ''"""'"' ""^ '■'"""^"" '" ^"■^^"'■' 
 
 Hsh Defendant, in his pleadings an.l at the j " „,,/,„., ^. /_„,,,/„, ., ,. ^, , ^.,„ 
 
 tnni, msisted on a right to retain possession of 
 
 tht vessel from the date of the writ (!lth Oet 
 
 i«;/A that there must he a new tiial. 
 
 /'"• N oung, C'. .)., tliut the action wu.s main- 
 taiiiidile for hoth vessel nnd fish. 
 
 I'n- DesHarre.s, J., that it wa.s inaintainal.le 
 for the vessel, Init f/"/' Diuhl and Desliarres, 
 
 iiiT) until the 3i,si Decendier, when the lishing ^' "emjind Unlawful takins Plalntlir 
 
 season chi.sed for the year. liroiight an action of replevin for certain gooils 
 
 The jury found for the plaintitr. '*'-''''•*''' ""''*''' '' ^^i"''"" "f <li«tress for water 
 
 Hil.l, lirst, i„r Johnstone, K. ,J., Dodd, Des- ; '""'''" '■''''''"^■'' ''>' '''^' ^''ty' '^'"1 the writ allege.l 
 
 lliures, and Wilkins, .1.1. (Voung, C. J., f/L. »<- "" ""J"**' "'''t^'"" '"" '-""tained no allegation 
 
 .....I .I... .1...- - 1 . ■ . ' ! "f i"i uidawful taking. Defenilant denied the 
 
 detention, and pleaded a second plea, justifying 
 under a distress for water rates, to which p'ain- 
 titr replied, disjmting the lialiility. 
 
 //'/'/, that as there was no compla' it in the 
 
 U->'i(,t for the fish, "the parties l.eing tenants ' "'" "^ '"' ""'"''^"' »'''^"'K. '""1 "<• l"""f "t a 
 in Lunimon of the ti.sh, ami tiie plaintitl' never '^''""""^ "^ t''" t"""lH ''V I'laintilT, he could m.t 
 iLiving heen in actual possession thereof '"*''■'"■'■''' '" ^'''' ^"''"' "^ '^"-'l'""- 
 
 Stroudly, /„/• Voung, C. .1., Dodd and Des- j ^'"'"^ ''■ ">■'"> "'"'"I ''"''^ -' «• * <i- -'• 
 
 fones, .1.1. (.lohiLstoiie, K. J., and Wilkins, J,, I 
 
 'ti.'Miii;,i;i), that section 171 of chap, i.u. Re i 8. Discontinuance- Entry of Judgment 
 
 viseil Statutes (second series), evteiided the '"'"' defendant— Where plaintiff discontinued 
 tiiininou law remedy as regards the action of '^" ''^'li"!' "f replevin, the defendant liaving 
 ^liliviu. jiossession of the goods under a return Imnd, 
 
 /''/• Johnstone, E. J., and Wilkins, J., that *''^' •-'"•"'^ declined to aUow defendant to try 
 the said section was merely declaratory of the ' '•'''^ cause, or to enter up judgment dt nfnriio 
 iiiinmon law, that the "taking"' mentioned i '"'''■"''"' '""• I«'-^si^'il 'i rule for judgment for 
 tliweiii was, therefore, a taking against the will 
 
 of tiie owner, and there heing no such taking in 
 thi.-, ciise, that the action could not he main- 
 tained. 
 
 Lane v. Dorsay, 1 Old., oTo. 
 
 the defendant with costs. 
 
 £miis V. Hoss, ti R. .t C, 50' 
 
 9. Evidence sufficient to maintain — 
 
 Plaintiff transferred his horse and truck, itc, to 
 
 5. Defence of llen-Walver of-Defend- ■ ^If' "f "' ," 'T*"'' '^«!'^*""«"* ^■''*'''' ^'^^ 
 
 an.., in an action of replevin for tish, clai.ned "o 'T .71' f r"',"^' T' ^''^^""''"^•y 
 
 kve a lien for storage and wharfage. A waiver | '^''^T "\? ^? '^""'"^ "" l"'*^ '* "f Property in the 
 he lien was pleaded, and plaintfff swore that, ' f ?''", ^'f' ^"''"^^^"•^•^. ^''^"^ ''^ '"» "^ ^'^^ *<> 
 
 cf the lien was pleaded, and plaintiflF swore that 
 when he first presented an order for the fish to 
 Ji'fenilants, defendants claimed only storage. 
 It appeared, however, that when plaintiff first 
 Hosed of part of the Hsh, defendants claimed 
 hoth storage and wharfage, and refused to 
 ^«liver any of the fish until the claim was paid. 
 On the same day plaintiflF wrote to defendants, 
 
 defendant from whom plaintiff sought to replevy 
 them, and at the trial offered in evidence his 
 agreement with McC, which was rejected by the 
 Judge on the ground that it was not properly 
 signed. 
 
 Held, that plaintiff could not prevail in this 
 action. 
 
 Carr v. Cany tt a/., 3 N. S. D., 213. 
 
ll!)l 
 
 IlKI'LKVIN. 
 
 ll!f' 
 
 10. UoodN 4ann«)t he r«>|>le«le(l fnmi 
 
 Sheriff — Sw. ;UM of i:i\}. !»4, 1!. S. (ttli 
 
 m'liiM), iin;vc'iiti* tin' icplcvyiiiK of « It, Hi'i/fil 
 
 l.y iiikI in ttii! fUKtocly »i tlu' Slu-iirt' iiiuler 
 prmTSH Dill iif tlif lour ■ llii'iriii iftViniI 
 to, though Miich ^t,,„iU lire tlios of ii tliinl i>aity, 
 li HtmiiKiT lo ilif liiiiHc ill wliicii till' proffMH 
 
 JHH I; mill wlinv other .Ifttinliiiils, iictiii),' in 
 
 till- Shcrill':* iii<l iiii'l iiiKifr liis iiiilliority, iiif 
 joiiu'il, llie writ \m1I !»■ "ft i'lnli' i''* <" "" •'"' 
 ilufi'iiiliintH. 
 
 Cnriy v. Hifuih/ i' '(/.. .'« li. iS: •'-. -"•••<• 
 
 11. (JO(ulH lonni'd to InHolveiit Ueniaiid- 
 
 Wlicii' K !■< well' li'iii '" 'li'' in.tolvi'iit liy 
 
 plaiiitiiriincl rctiiinnl liy tlir iiH«i;4iitf. 
 
 //././. timt tiify couM )..■ ifplrvicd witlioiii 
 (U'liianil. 
 
 l>i iiiiiiiiii V. (iiirtiji 1 1 '(/., (i K. iV '••. -*"" ; 
 
 lie. I.. T.. .-.41 1, 
 
 \i, (JoodN not in poMsrsslon of defendant, 
 
 hut of bin assignee I Vfendaiit, liaviiig ilis- 
 soKf.l Ids coiiiiL'ctiDii witii till' linn of <'. & U . 
 Aiidfison. orderi'il tiiu goo.ls in c|iu'.-*tioii from 
 plainlitl'. 'I'Ir! agunt forwardi'cl llii' ordt-r in liiu 
 naini' of ('. W. Andt-i'-son in.stead of \V. ('. 
 Aiidcisoii (the dfffndaiit'i* iiaiiif). ""'l lilaintitf's 
 .sent tile goods addlfssi'd to ('. iV W. Alidfl>on, 
 who rt'fiist'd to ri'i'fivf tluMii. 'i'liey afterwards 
 I'aiiiL' into ])ossi!»«ion of difeiidant, anil at the 
 tiiiiiof tliL sui/nii; wtnv in t ho store of defen- 
 dant, where tlie liusiness was lieing eondlieted 
 liy assignees, under a liill of sale eonveyiiig all 
 defeiidaiU's iirojierty. Wlien the demand was 
 made defendant was merely a salcsnian for tlie 
 assignees, and told the jilaintitF's agent tliat he 
 
 could not give up the g l>. as they were not 
 
 his. 
 
 ffi^l'l, that the plaintitf loiild not siiceeed in 
 replevin, as llie goods were not, at the lime of 
 the seizure, in the possession of the defendant, 
 or at lea.st that there was not sutticieiit evidence 
 to tlie contrary to enalde the Court to set aside 
 tlie verdiil found liy the Judge without jury for 
 the defendant. 
 
 Weatherhe, .)., ilisHeiiHu;). 
 
 Marsha// v. Aiidifson, 4 R. & <;., 4.S1. 
 
 |». (joods obtained on credit by false 
 
 reprfesentations — Replevin for - Where an 
 action of replevin was brought for goods soM 
 by plaintiffs to defendant, and there was evi- 
 dence to justify the Judge who tried the cause 
 without a jury in coming to the conclusion that 
 the defendant had made false representations to 
 the plaintiffs as to his solvency, knowing them 
 
 to lie fiilse, the Conrl refilled to duliilh tin. 
 jiidgn.eiit for plaint ills. 
 
 n„H.i,rl; ,1 nl. v. .V' ///,'/. 1 K. it <■., .'ISS, 
 
 It. (jioodN replevied from pervin not 
 
 a party to suit — I'lainlitl liel.l a lull ni 
 sale of a pair of oxen ♦foni McL., the owiar, 
 who iiintinued in pimsession, the lull of milt 
 being duly reiorded and Upheld as valid liy 
 the jury. After making the bill of Mde, M. L 
 was arresteil at the suit of defendant, ami, on 
 swearing out of jail, assigned the o\eii to tin.' 
 defendant, who sold them at atKliuli In W. ; 
 w hereupon the plainlill', under a w rit of lepltviu 
 against defendant, took the oxen out of the pus- 
 session of \N'., wliii was no jiarty to the Miit. 
 I'lainlitV having obtained a verdict, tlie ('mut 
 set the verdict aside «ith costs, lion-Miited tlif 
 plainlill', giving the defendant the costs ol iiction, 
 but not of trial, and directed the replevin l»iii.| 
 to be put on tile, subject to the order ol ih'' 
 Couil or a Judge. 
 
 /•';'f(.M/- V. I>iii'' , :i K. >^ t'., til 
 
 15. IrreKHlarlt) In replevin writ Notice 
 
 on writ Amendment— A writ of replevin liav 
 ing been issued without the notice iei|uiri'ci t" 
 be indorsed thereon by the I'ractice Ait, 
 
 //./</, that it was irregular, but might !«.■ 
 amended on paymeiil of costs. 
 
 Ciiini ri)n V. Cnmi-rou, 1 N. S. I»., IT'i 
 
 1«. Joint detention Property not talieii 
 
 out of plaintiff's possession -Chamiierty- 
 Chatlels were .sohl by phiiiiliff l<i one S. Hi 
 fendant, McK., claiming a right to them, tnnk 
 them from .*>., who demanded and received li.iik 
 the purchase money from plaintitf. 
 
 11,1,1, that plainlilT could recover in if|il«;viii, 
 notwithstanding the sale to S., and a!tli"ii|;ii 
 the goods were not in his possession wheiitakdi, 
 McK. having seized the goods and dcpwit<"l 
 them with -M., who liehl them on account "I H ■ 
 the other defendant. 
 
 Hild, McDimahl, V. J., tlU., iiih,;i, that Iwtii 
 defendants were liable. 
 
 Dohxoii v. MiKay d a/., .■> K. ^t ''■■' 
 
 1«. Justiflcatlon of taklng-ffhere the 
 
 ilefeiidant in replevin justilies the takiiiiJ «* ' 
 distress for rent, the aUeged tenancy niiii<t l«^ 
 . clearly proved precisely as hiid in his avowry. 
 /.adds v. E/lioll el a/., I UM., 7'* 
 
 18. Mixture-Common law doctrine as w 
 
 —An action of replevin was brouglit with counts 
 iu trover and trespass for a large iiuantit.V "' 
 spruce and pine logs cut from lands in the lowf 
 
1193 REPLEVIN. IIJH 
 
 ^Iii|int Hen toil. I'ljiintiff»iliiitnc<l(unl liiiiliictiml jinixcil up witli ilinii iiuilrr tlii; Iwliff ilmi ilicy 
 
 |K.-c -■.Kill iif ilif liiml iiinii'i' ail agrfciiu'iit iiiiicic were all tlicir own. 
 
 Ill is:;) with a purly to wIkhii the IkIh liuil linn //,/,/, that iIi.K' hIioiiIcI \>v a ni'W trial, in 
 
 iiinvcyt'd by ilueil in iN.Vt. The iltfi'iiiliint j i>nh>r that ilifcmlantM iiiiulit havn an opjM.r- 
 
 iiittiiiptfil to HvX up a title under procecciinKM tunity of proviiiK what purl l.elonneil to them 
 
 ;iilii|ite(I at a i>ieelinj< of the inhaliiluntM of the ami what to the plaiiitilf. 
 
 TiiHiiMliipiii lH-17. hehl fortlie piirpoHeof niakilig I Sl^ intrl v, ll'/i' «/,;■(/ n/., ;< \, S, 1)., 411. 
 
 imiMxioii for the poor, hy whieh etrtaiii com- 
 
 «-.ioiieiN wtire authori/.eil to Nell vaeaiit lanilN, 
 
 , , . 1 , , , , *''<'• ^ov"* «<•»>"* Inlervenlcns Plaintiff 
 
 liMlinllliifaH It waselaliiieil the laiicl.s in iiuestloii, ,.„,.i,„.j„ i ,„ ., ,., o. ..a e ii if << 
 
 , ' repleviuil from the .Sheriff of Halifax ( oimty 
 
 lut I le ( oiiit jielil that their proceeilinuN were r ■> ■ i ' i , ■ , ■ , 
 
 , , . , , , ' , , , property of one hahUviii, and eliiiiiied title 
 
 iiitiiily willioiit legal warrant, and further, ,i„.„„,, „,. i ., , i n » i . ■ 
 
 ■' , ' tliereto uiiiler certain Inlli of nale eoiitaiiiinir 
 
 tliiil there wan no aileqiiate proof that the andn ,.,.,,■ ; ,i . i .i i ii 
 
 ,,.,,,,; .' ,, JiioviMioiiM that made the (oiivevaiioeM applicatile 
 
 nil SI. 1 iiiilinleil tilt lotN 111 (iiieHiioii, rain- , ,t, • i . '.i.i , 
 
 , , , , . , , , '" iifli'i'-iici|Uired property. Ihe l'ooiIm wen^ 
 
 lltf rill a liirjie llllllllier of loiiM irolii the am M in : .,11 ..,.,!,, ... 1 1 ., 11,1 1. • t. .i i . r.i I'll 
 
 '\ nil ordered liy Haldwin aft<'r the date of the IhIIh 
 
 21. Plea that goodH In public market not 
 
 liable to distress for rent— DefendantM let to ii 
 
 Npiite, and put them with others cut fniiii other I ,c „,.i, „ i . ,i • i ii i i , • .■.,. 
 
 ' , ' , , , , . . "' «"■»', and nothing; had lieeii done hy iilaintifl 
 
 liiis III a iKMiin on the ice, and defenduiit cut i.., ....... ,f ..; \, c '■ 
 
 . , , , , ,, ,, , oy way (it aKserting a right of iKWHeHHion. 
 
 hvf hundred trees on the disputed lot and put jt i.i <i. .> :„ .i i t 
 
 ,..,,' ' /I'M, that in the absence of any moium nrhis 
 
 I HIM partly iiiMiile and partly oiit><iile of the ;.., ,. . • . . ..a-i , . ., ■ , ,.., , 
 
 ' ,,• ,' .■' , i«''>/'f(/i. //.I, jdftllitift had not the Will title, and 
 
 iiliiiiititfs boom, iiiixinL' them III Mucli a way that ,1, ,, i ii . »i • •. i 
 
 ', ,, ,,...,, , , , . , ""^l '" t''iiild not. 111 this Hint, rely on an 
 
 ihtyroiild not be diMtinguiNhed.and then claimed ■■....itiil,!-, title 
 
 the whole lot an his own. I'laiiititrH then seized ' 0' K>/1 v. lii/l 4 ]i, & {',. 4|!), 
 
 uniliT his wiit of re]ileviii all the logs that he 
 
 miilil identify and enough more to iiiaki- up the 
 
 nniiiliiT cut by himself on the disputed laud. 
 
 //'/'/, tliat even if part of the logs replevied 
 
 liail lieen cut by .lefendant on hii.d to which ^•'"''"' '''^^''^"'" ("■'■'"'•''••^' t''^' "I'l'^"'' I'"'ti'-" of 
 
 liLuiititfshadnocIaiin, the common law doctrine ""'^'f' "''*' "^•■'' "'' "" '"" '■'' '""^'' ^"' f'""'"'"' 
 
 nf mixture differing from that of the civil law, '""^ " »""' "' ''"" '""'■'' "'^^ l""vi.a-.l with stalls 
 
 twihewluileof them without account to hiin ^"'' *'''' ^"^^''"' '" ''''*^'' '"' •'^'^ J""'"'"^'" '" "" 
 
 wli„H property had been invaded, and that the ''">'''''''- ''''iintitf occupied a Mail in which, along 
 
 v..,lict for i.laiiitiH-s, which was taken only ..ii '""' «'""''' '"""^''^ "'^■'■^' "'>■ ''""«•-■''• ''^' ""''^'■'•'' 
 
 the rq.levin count, could not be .set asi.le, as the ^"'' "'''" '^ 'l'""'t«ty of apples bought in this same 
 
 IKi,,s...sion of plaintifTs was sullicieut to entitle ""^'k'^^t or outside. The apples were seized under 
 
 him to recover against defendant, a wroiig-doer. " '^'^^''''' ^'" ''''"^ "•""' ''•-■f'''""l'"'t« ''>' their tenant, 
 
 Lant V. Mv Donald, '2 R. & (i., .S7 ; ■ '""' I'l'^"'""" '-iTl'-^U'd, claiming that the goods 
 
 IC L T '140 were privileged from distress, being in a ]>ublic 
 
 market for sale. 'I'lie County Court .)udg(? Ar/(Z 
 
 0(1 Hi,/»u/ 10 tl,.. Surn m, ConrI o/Canmln. ^,„^j ^^^^ ^„„„,^ ^^.^,,^. ^„ j,,i,.i,,,y^,,,_ 
 
 H'ld, that the possession of L. rf n/., plaintiff's, //,/,/, that the exempt hm could not be claimed 
 
 "f the lands in (juestioli, was sufficient t<i entitle on the ground set up in this defence, as plaintiff 
 
 ihiin tci recover, in the iircsent action against was not using the premises as a market, but 
 
 Mcli., who was a wiong-doer, all the logs cut simply as a shop in wliicli to ofTer, in the ordi- 
 
 ™ ilie la. ds in i|uestioii. nary way, goods jmrclmsed to be sold fora profit. 
 
 /'■'•Strung, .1.— When one jiarty wrongfully /I, ,il v. Mchowjall <l a/., •_» I{. & (J., 4(i8 ; 
 
 intermingles his logs with those of another, all •> C. L. T. •2('y2. 
 
 ihe ]i,irty whose logs are iiitermingled can re- 
 
 |imix. is. that he should be permitted to take o,. possession Sufficient to malntain- 
 
 tr..n ,1,0 w u.le an e.,mvalent in number and p,,,i„jiff ,„,„„^,,,^ ..^j,,^,^.;,, ^^^.^^.^^^^ .lefei.dai.t, a 
 
 l-miity for those which he originally posses.sed. .Sheriff, for goods taken on execution, but claimed 
 
 .VcDouald V. La„<, 7 S. C. K., W2; , ,„i„^iff ,„„,^.^ ,^ registered bill of sale from 
 
 - . -. .,.1. o. jIj^, piirty against wluim the execution issued, 
 
 and who was suffered to remain in possession. 
 
 W. Mixture of articles -New trial to And The principal <iuesti(m on the trial was the hoiin 
 
 which belonged to plaintiff and which to de- ^liden of the bill of sale, and the jury having 
 
 fendant- Where plaintiff re|)levied certain logs found for the plaintiff, 
 
 from ilefendants, under a bill of sale, and among Held, notwithstanding suspicious circumstan- 
 l^ii'se rigiitfuUy lieloiiging to him were a iiuiii- ces, that their venlict could not be set aside. 
 i*rl)eloiigingto defendants, which the latter had ; Alio, that the plaintiff", who had had a syin- 
 
no.') RKPLKVIN. llOtj 
 
 liiilii' ili'livriy, mill linl ;i iiulil l" imiiu'iliiti' l.nii' v. Iiiii''ii/, I Ol.l., .'iT'., Ilmt irpliMii 
 i><>Hit('<*Nii)n, llitil Hiitliiji'iit |i'i4'.i'«n|iiii til inaiiitiiin umilil lii'. 
 
 thi'iiction, .Sri'c.iiil, /»'/• Sii' W, N'.miiK, ('. .)., .ImIhi^Iuiii', 
 
 .]f, y,ih V. Sinr,/,r, ;i N, S, |),, :W. |,' j _ n,.,, ||,,slJ,i|f,M, ,1., Ilmt till- li'niK'iy'if tlie 
 
 M-iMi'l liciiiLj iiiilv I'riiiiii t'liiii cviilt'iirc of iillf, 
 
 •-•:». Krplevin luiiliiHt aMixnec In \\\m\. , ,|,„,, ,„.|„j.'..vi,u. ."..f fmn,hiM,i -nii,, , 
 
 vene.v Snti.m P.V. ..( tlu- In.uK.Mt A.t ..t ,„.,„.„,„ ^y. S. un.l l». S. in r..«,ml tn tl,f legU. 
 
 IHT.-.. -Icf. I..I pivvrnt un ii.tl t irpl.-vu, ^^,^^ ^^^ ^^^.^,^ ^, ^^^ ^,^,f^,^^, j,^,, ,,,,,.,it,„,, „f „„, 
 
 UK.iii.Ht .ill u-.Hi«n.... Ill .u.Mlv..n,y to .•.•.■ovf ,, ;^.^^^^,^._ „^^^, ^^^^,,^,,. j,^,, ,.,|„i,^j,,,. ,„,,„,,,, ,„„ 
 ,„.H«..,HloM ot g lH,o„v..y..l.incl,.|iililllofsHl... j^^.^,^,^j ,^^. ji^^ ^,^_,^, ^,_^, i^^^^.^j^.^ ^^„..^.,,„, ,,^ „^^, 
 
 ''■•" """""'"ly I'"" '"'«'* '>"•'•"" l""vi'l''-t »">■ f,.H,„l Hhoul.l ).f r..Mio,v.l to tlu'lr .jUHt tvl.ti,,,,, 
 
 are<.l.lig.it..ry..i.lyiiitluMaHt.of.luii...-U.volvinK ^^^ ^j^^^ ^.^,^^^,,^ ^^,^^, j,^^, ^^ _,,,,,,, ^^,,,, „,^,,,^^ 
 
 i.ii tlif iiMHiKiu'i- l.y virtue of tli.. Act. ...clitoiM Uc n.liiiitt.'.l to M iiiiiil.U' i.iirii,'i)i;iiiu,i 
 
 I'inn, V. (larnv, ./«/.. (I li. & ti.. W. .^^ ^,_^_ ,,,„,,,,„ls. 
 
 /•'(■ Wilkins. .1., tli'.t 111 diiiw infcii'iiii« nf 
 *24. KrplCVllI «r Vl'SM'I H'. 8. and B. fniinl, unli's* tliry aiv incMi>til.l.' in tlirii ili:,i 
 anil I'. S. |iroiiirril NU|i|ili(s fioiii iiarlics in St. |,|,t,.|., for liic iiurposc of niiiiiillliii; ii n lm-Iiic'I 
 .lollll, \. 15., mill ll.llifllX. \. S., to lie Usfcl ill y„.;,;/r( I'lir'n title ton liiili-ill Nliip, is liiMHiiLiiiy 
 
 till' I'oimtructioiiof II vrisd wliiiliiiftcr licr coin- j||,ii,.i„l roiupcifiu'y. 
 
 plctioii wiiH riij^intiMcii ill till' iimiu' of U. S. 'I'o yi, ,. |),„|,1_ ,|._ that fiaml was not siitliririiiiy 
 
 till- parlies in St. .lojin, \V. S., mul to tlmse in pioveil to avoiil the yrini" /"•ii title eunfiriiil 
 
 Halifax, 15. S., whose name alone appeal e.l upon |,y (i,^. it.gistry. 
 
 the rei,'istry, wiiM rfpreseiiteiliiHowiior. Actions U'nnif v. A'.-'i' c/w)//, •_' \. S. ll.,'.'47. 
 
 were liroii>,'lit liy the St. .lohii creditors a>.'aiiist 
 
 \V. S. for the ^'ooils sii|iplieil on his credit, ami •2.1. l{C|)l(>Vln niU}' be NIlMnlncd ll) tllC 
 
 jiiil,i,'nieiitH olitaineil ami executions issued, un- owner of goods, taken under a Marraiit in ilif 
 
 (ler which the vessel was levied upon and sold nature of an execution, not heiiig the puty 
 
 as the property of W. s. While the vessel was against whom the warrant was issued. 
 
 in the custody of the SheiitV, ami prior to the 'I'lu. replevin iu such case may lii' hriiii;ilit 
 
 sale, li. S. executed a liill of sale in the form uyiiiiist the coiistalile « Im inide the levy hiilii; 
 
 reipiired liy the Act to plaintitl', one of the jn possession of the uoods. 
 
 Halifax creditors, who immediately had the: A''";/ v. //(« /ifn;, .laiiiis, 'Jl. 
 
 Manic registered and received a formal delivery I 
 
 <if the vessel from I!, s. The sheiitv sold all >n\. Keptovin Will Mot lie ngulnst u con- 
 
 the interest of \V. S. in the vessel to defendant stalile for property .sei/ed liy him iiiidei a wai 
 
 and delivered a hill of sale of the same, which rant of distrcsM for the non-payiiient of srlmnl 
 
 was not recorded. I'laiiititV tliereu]ion lu'oiifiht rates, under Revised Statutes (second .■.eiiei), 
 
 an action of replevin, which came on for trial, e. (id, sec. Ill, although .hiicIi warrant he ikfcc- 
 
 Imt, in conseiiuence of the length of the cause tive in not reciting that the collector had niinli' 
 
 :r' 
 
 and iiisiilKcient time, could not lie concluded, the oath reiniired to lie made previous t 
 At the suggestion of the iiiesiding .Tndge a rule issue of such warrant, which oiith. however, liiul 
 was entered into liy which it was agreed that a in fact liceii made. 
 
 verdict sliouhl pass for plaintiff, with power to /', r Young, ('. J. —The only remedy in such 
 the Court to determine and draw the same in- a case is liy nrtlomvi, or appeal to the Siwinii.". 
 fercnces from the evidence that a jury might do, j MrUrciinr v. /V'i/no/(, I OM, '211. 
 
 and either enter a verdict for jilaintifl'iir defeii- \ 
 
 dant or order a non-suit, as they might think 21. Replevin Will IlOt lie fOf lOJtS f Ut bj 
 fit, and also with power to determine tlie eipii- defendants on lands jnirchased liy plaiiitiH mi 
 ties, if any, and to order a .sale of the ve.ssel their joint account, and of which they have Irul 
 anil payment of the proceeds into Court to aliide a joint possession which has not been rcgiiliniy 
 the judgment. '' terminated, althougii the deed of the liiml wii" 
 
 H<l<l, first, )iir Sir W. Young, C. J., Des- ' to jilaintiff ahme, and defendants had not puiil 
 liarrcs and Dodd, d.I. (.lohnstone, K. ,T., doulit- their .share of ihe purchase money, acconliiig t" 
 ing, and NVilkiiis, J., ditsntlituj ), that li. S., jiie agreement. 
 
 being the registered owner, was not precluded Frumati v. Hnyr'nu.itoii ff nl., 1 Old., H'''- 
 
 by the levy of executions against \V. .S. from 
 
 giving the bill of sale to the plaintiff and trans- 28. Substituting ncw defend a nt-Fresh 
 
 ferring to the latter a possession sutlicient to ; security— Where plaintiff had in the first m- 
 support replevin. Also, under the authority of I stance given the replevin bond in the form pio- 
 
11!)7 
 
 RKVENUE. 
 
 IIDS 
 
 vjilcil ill I lu! Stat nil' mill II iirw (Icfi'iidniit liml tiiul ii|i>iii tlii< iinliimiy urniinil-, Imt tlif jury 
 
 l,<>ri Hiilmlitutnl in ilic iKJtioiiiis ilcffii.laiit in having tiiiiinl lur tin' plitintilF n|i<in all tlii' iMNiit'N 
 
 thr |)liiif >>f lliu nrij^iiml (li'ft'ndaiilN mnli'i' un of fact, tlii'( 'nnrt rcfuni'il tiHli>tcliaigi! tliu vi'iilii'i. 
 
 intti|iltiu(lfr nuiiiiniiiiH taken out l>y tlio lattor, Lroiiartl v. ('mi^inll, | N, S, 1)., |-J1. 
 //■/'/, /"/• Hiti'liif, .?., at Chainlii'iM, that tlicif 
 
 i, iin poxt'i' tniiiic't the piaiiititi' to turniNii a -• Dpfi'iircH under I'UHtoniH and Inland 
 
 ni» lioinl or .itlirr Mciiiiitv to tlii' Miilmtitutt;il Rnvenue A(!tH Conntniction nth R. S., c. 104, 
 
 ,l,t, M.liuit. O. XIX., K. 2, mid O. XVIII., R. 21, and O. 
 
 V"""', ulu'tlicr the lioiiil affoiilud m\\ ^loiir- ' X"- ^- ^^ Ur.nece8«iiry prolixity Oenernl 
 
 Ity 111 iIk' MiliNliiiitfil ilcfi'iiilant. iMiie 'I'o an ai'tion l)roiij.'lit a;;ainst ilffi'inlant, 
 
 Mi/)(iiia/il \\ h'oi'iiih, Miiyrh .'/Ih, IS'.m, an aiictioiit'fi' in tlir City of Halifax, to it'covor 
 
 Ciiri iiorli'd, <lainagL>H for tliu itllogtiil wrongful Halu of a liorHO, 
 wagv'"" I'liil liaiiii'NM, Nfi/i'il liy otIicfiH of tlm 
 
 W. The Queen I'lin brInK replevin under '"'"'"' H''vt'nni^ whii.,. iMinK'usnifortiu'puipoM,. 
 
 tth I!, S., cap, 1(4, Huu. .'WK. of rfiiioviiij^ a ipiantity of NjiiritM unlawfully 
 
 l,>ii<iii V. /'/riv ;•.•_' U. iVC. 4;il, iii'ii>"'"L'tureil and lialili' toL'Xl•i^^l■ ilutii'N, ilffi'iiil- 
 
 ant pleadiid tut'iity-iiiiu' Ki'oiiiid» of dcfi'iici' 
 
 30. WrItN or replevin Ketuni Writs wliirh wm. .•xpamlfd at j;icat Inigtli. 
 
 (if II |ili\ ill NJioiild lie iiiailr let uriialili! iiiiiliT tlic 'l'l'<' "luiJKf of tlic County Court for I)i«tri>'l 
 
 Alt iif iM.'il, I'ap. 7, and not on a Hpi't'ial day. N<>. 1 liolding tiiat, iiiiik'i' tlit- CiixtoniM Act, 
 
 .liihiisnii \. /;ti>., .)niini.H, 44tl. Acts of iHM.'i, o. I'.', x. 'J*JS, and the Inland |{t;vc- 
 
 nuti Alt, Alts of IMM.'J, i: 14, H. 7'J, tlif dtaViidant 
 was liound to plead the general Inmuu and givu 
 
 KESTKAIMMi OKIIKK 
 V" IXJIMTIOX. 
 
 KEVEXIK. 
 
 the gL'iieral Miilijectniatter in evidfiicc, and that 
 the di'ffiici'M iiH pluailud were unncri'HNurily pro- 
 lix, and Were uiinmcsttary and cniliarraMniiig, 
 made an order direetiiig tl r all the j)lea« lie 
 dtruck out with the exception of the 4th, which 
 denied the allegations and issues in the jilaiii- 
 tin's stateiiieiil of claim, anil w liicli he held to 
 he o(|iiivalent to the general issue. 
 
 /hill, that the order inust lie set aside with 
 
 1. Action for penalty fur violation of eosts*. 
 
 Revenue Acta— I'laintitl, as collector of colonial 'I'liut the pleas, thougii expanded at great 
 uvwiiies fur liie I'ort of Sydney, liroiight an length, were not necessarily, on that account, 
 iiitimi against defendant for the penalty incurred emliarrassing. 
 
 iiiiik'r Hevised Statutes (.'hil series), c. I'J, sec. That under the Judicature Rules, unnecessary 
 iUiy a violation of the revenue laws, and oh length is a matter which can he eU'ectiially dealt 
 titiiit'il a Verdict. with on taxation of costs, as provided liy Order 
 
 A nilu tilsl, in arrest of judgment, was granted ; XIX, Hule '2. 
 tiMlefeiidant, on the following grounds; ' Doulitful whether the auctioneer who sells 
 
 First, liecause it was not alleged in the declar- i goods seized under these Acts can avail himself 
 atiimtiiat the action was hrought at the instance of the pidtectimi the Statute gives to revenue 
 'if the hoard of revenue ; second, because the otticers. 
 
 particular oflfenee alleged to have lieen coiiiniit- Xot liound to plead the general issue even if 
 ted, was not specified in the writ and declaration, held to he an othcer entitled to the protection of 
 
 tf'lil, that neither ohjectiou could prevail, the Statute. 
 llie Statute ])rovided that this action, though It is a privilege which the otficer may or may 
 I'lmight for a penalty, should he jn-osecutcd in not make use of. 
 
 tliesiuiie manner in all respects as an action for That the learned .Iiidge was wrong in holding 
 the itcovery of a deht, and the defendant if he the 4th ground of defence to he eiiuivalent to 
 Mished to take advantage of the first ground, the general issue, as it was not so pleaded and 
 sliimlil have ])leaded it as a matter of defence, ' did not comply with the reiiuirements of Order 
 while the second ground of ohjectiou, although XVIII., Rule 21, and would have heen a viok- 
 "iniuestionably fatal, if this were a crhniiuil i tion of Order XII., Rule 10. 
 I'rosecntion by information or indictment, was That .some of the pleas struck out were good, 
 cf no avail in a purely civil action. as containing distinct denials of material facts 
 
 "efendant also took out a rule under the | set out in plaintiff's statement of claim and 
 Matute to set aside the verdict, and for a new : essential to his case. 
 
1199 
 
 RIOT. 
 
 1200 
 
 Tlie others were good as asserting title in the j Hdd, that the vessel was forfeited witli tlwt 
 defendant and in Her Majesty. Tlmt others portion of the caigo whicli belonged toCook; 
 were goo.l as justifying defendant's action under \ but as Conrod was innocent his case was rtioiii- 
 the provisions of tlie Inland Revenue and tlie mended to the (iovernnient that his int.iost in 
 Customs Acts, all the defences being such as the vessel might, if poisible, be protected, 
 .lefendant was clearly entitled to make use of. Tht Stan-ay, Y. A. 1). , •-'(J7. 
 
 Simhh, tliat tlie Judge of the County Court 
 niigiit have directed the substitution of a state- 
 ment in a summary form of the material facts, 
 
 6. Forfeiture and penalties for violation 
 
 of Revenue Laws— Tiie Schooner (llud'tatur, 
 
 or that the parties prepare issues or have them i whereof one Davis was master, was engaged in 
 settled by the .Judge. 
 
 McDonald v. Clarh , '20 N. S. R., 
 
 (SR. &(!.), 254. 
 
 3. Breacli of Revenue laws— Suit for 
 
 penalties— Jurisdiction of Court— Tlie defend- ' antiiorities revealed the fact tliat tlie siiiii<.'g 
 ant and three others being discovered in tlie : „f keposeiie oil had been systematically •lurit.l 
 illegal distilling ot spirits, the materials and j ^^ \^y means of false outward and inward nwiii- 
 apparatus used by them were seizeil. Xo claim i^^^^_ 
 
 having been put in for them they were con- //,/,/, that the vessel with her appaiel ami 
 demned, and proceedings then taken to recover fm-niture was forfeited to the Crown, and tliiii 
 
 the trade between Roston, U. S. A., and Yiu- 
 mouth, N. S., making regular trips littwotn 
 those ports. Suspicion liaving been aroused as 
 to there being smuggling operations, an investi- 
 gation oil llie jiait of the Custom HmiM^ 
 
 the penalties imposed by the Act. Tlie defend 
 ant appeared under protest, denying tlie juris- 
 diction of the Court. 
 
 //(W, that the Court had full jurisdiction in 
 
 the matter. 
 
 Qmtn V. Flint, Y. A. 1)., '280. 
 
 S<f PROHIBITION, 3. 
 
 4. Fine and forfeiture for vioiation of, 
 
 Revenue Laws— Action for forfeiture and pen- ; 
 alties against a merchant doing business at , 
 
 the master was liable under the Uominiou Cus- 
 toms Act, 31 Vic. cap. 6, in eighteen penalties as 
 follows :— .Six of .'*4(K) each for making an uutn.u 
 report of goods on board ; six of .*'2(Kt eacli f(.r 
 being concerned in the landing and reiUDval ot 
 goods liable to forfeiture and six of .?4(X) euoli for 
 making untrue declarations. 
 
 Tht alaiViator, Y. A. 1)., liHi. 
 
 1, Vioiation of Revenue laws This 
 
 vessel, while proceeding from tlie Island nf .><t. 
 
 Halifax, the goods seized under tlie charge of j pig,.,.^^ ^^.l,i^,h is a, colony of France, to New 
 duties being unpaid thereon, consisting of wat- ! fo„„tiia,ul, put in at Aspy Ray, in the Islaiulnf 
 
 1 Cape Rreton, tlie said Aspy Bay not 
 
 ches and other jewelry. The claimant alleged 
 
 that he had not imported the goods himself but ^^^^^ ^^j entry, without necessity from stress- 
 purchased them in Halifax, but failed to estab- ; ^ygather, and having dutiable goods on Inianl, 
 lish liis <lefence, the dealings between him and g„„,e„f which goods, the evidence went to slum, 
 his alleged vendors being exceedingly compiica- j^.^^j ,^^.g„ j,,^.,.^ hmded, and no duty at any time 
 
 ted and suspicious. In addition to this, certain 
 statements of his own were brought in evidence, 
 
 paid thereon. 
 
 Hi hi, that under sec. 9 of .'ll Vic, cap. (i, tlie 
 
 admitting that he had not paid duty on two of y.^ptain of the vessel had incurred the tull 
 the watches seized. ; penalty of ^HOO imposed by that sectin 
 
 The Minnk, Y. A. 1>., ti'>. 
 
 RIOT. 
 
 Hi Id, that the goods should be forfeited, and 
 that the claimant should pay a tine of .'?1()0 with 
 costs of suit. 
 
 Qmtn V. Oold IVatchei and John Baldirin, 
 Claimant, Y. A. D., 179. 
 
 5. Forfeiture for violation of Revenue 
 
 Laws— The Schooner Sean-ay, owned liy Conrod 1. Expenses Of militia Called OUt tO quell 
 
 and Cook, and trading between Cape Rreton and , riot— Neither the Dominion Acts of 18ti8, c. 40, 
 Halifax, fell under the suspicion of the customs or of 187.'), c. 46, nor 4th R. S., c. '21, s. ,"14, em- 
 authorities, who set a watch upon her, and a ! power the Supreme Court to amerce a C(niiiiy 
 systematic course of smuggling w. ■; discovered, ] for charges incurred in calling out the active 
 the smuggled goods being taken to Cook's pre- militia under the Dominion Act of 1873, o. 4ti, 
 mises. to <l"»-'ll "• riot. 
 
 There was no evidence implicating Conrod in In re Amtrcemmt of Cape. Breton Co., 
 
 o R t r 410 
 
 a'ay of the transactions. - '^- '^ ^■' 
 
1201 
 
 RULES OF COURT. 
 
 1202 
 
 Shy V. .\t<:H<ffnj, 1 N. S. 1)., '.U\. 
 S" TRESPASS. 
 
 KOAI). 
 
 2. Mllltia called out In aid of civil power of tiim', it must be considered as alluvion l.y 
 -Tlie Militia Act, Acts of 1868, c. 4(», aa amend- slow and impercejitiMe degrees. 
 i<l l.y tiic Acts of 187;{, c. 4«, and tiie Acts of 
 1870, c. .SI), a>it)iorize» the calling out of the 
 militia liy thesenior officer present in any locality, 
 ill ai<l of the civil power, for the purpose of pre- 
 venting or Nujjpressing riots when thereunto 
 rtM(uircd, in writing, which writing shall exjiress 
 (in the fiice thereof tiie actual occuirence of 
 ii riipt, (listuibance or emergency, or the antici- ^» Rule Of llie FOad -In an aCtion brought 
 piition thereof. Wlien so called out the liuiiility '" recover damages for an injury done plaint itf* 
 to pay for tlie services of tlie militia is imjiosed ••"''««> driven l<y his servant, tiiroiigii the alleged 
 iipju the Municipality for wliich such services iin>'kilful and negligent driving of a iioise and 
 are reijuired. sleigh of defendant l>y his servant, one of plain- 
 
 Several companies of militia in the Munici- ^^^'^ two witnesses testitied that plaintiff's 
 pality of Cape Breton were called out in puisu- **«rvant was driving fast and defendant's servant 
 aiioo of a fe(juisition, which read : " It liaviiii; slowly, anil plaintifTs servant, liis otlie'- v.;»ne ■ 
 been represented to us that a disturhaiice luw ii<linitted tiiat he was driving prett;- U^\ , \\vaX. 
 fjccurred and is still anticipated at Lingan, lie- '"^ **'i^^' defendant, four or five lengtlis orf, on 
 yoiid the power of the civil ])ower to sui)preHs, ^^^^ wrong side of the road ; the time was even- 
 yrm are tiiereforo iierehy ordered," itc. '"fe' '"'"l neitiier party carried lamps ; tliat lie 
 
 H'ltl, that in order to make the Municipality <-'ould liave passed on tiie other side, lint ke))t on 
 iiatile for the maintenance and pay of tlit; as he was going. There was contradictory evi- 
 militia, the rei|uisition must eom])lv strictly '1<''"'''e as to the situation of the parties at tlie 
 with the Statute, and that as it failed to ex- time of the accident. A verdict found for plain- 
 press on its face the actual occurrence of a riot, tiff was set aside, tlie Court holding tliat the 
 disturbance or emergency, or the anticipation of evidence of negligence on tlie part of defendant 
 liny, but only set out a representation that a "''''' ""* sufficient, and that i)laintitrs servant 
 disturbance had occurred and was still antici- , ^*''*** guilty of contributory negligence. 
 
 piited, which representation might have been 
 found on investigation to be unwarranted by 
 the circumstances, the Municipality was not 
 iicilde. 
 
 Ikad v. The MunicijKtlity of Cain. Breton, 
 
 7 R. &<;., --'60; 
 7 C. L. T., 349. 
 
 On appeal to the Supreme Court of Canada, 
 
 Hild, that the retjuisition was sufficient. 
 
 The Statute also provides that the Munici- 
 pality shall pay the expenses of the service of 
 tlie militia when so called out, and, in case of 
 refusal, that an acticm may bo brought by the 
 nffietr commanding the corps, in his own name, 
 to recover the amount of such expenses. 
 
 Hdd, Strong..!., dUst-nthi;/, that where the 
 commanding officer died pending sucli action, 
 tiie proceedings couM be continued by his per- 
 sonal representative. 
 
 Crtive-A'ead v. Count;/ of Cape Rriton, 
 
 14 S. C. R., 8. 
 
 RIVERS. 
 
 Con/on V. Connolly, 1 R. & ('., !).">. 
 
 2. Rule of the road -Defendant's servant, 
 
 while driving at a rapid pace on the wrong side 
 of the road, came into collision with plaintiff's 
 horse, wherehy plaintiff was injured. There 
 being no contributory negligence on the part of 
 plaintiff, 
 
 IJild, that <lefendant was liable. 
 
 Martin v. Taylor, .3 N. S. 1)., 94. 
 
 .bV. , aho, WAY. 
 
 RULES OF COURT. 
 
 [The following Rules of Court comprise all 
 that Iiave been enacted since the proclamation 
 of the Rev. Stats, (otli series), on the "i-Sid 
 April, 188."), except (1), Crown Side Rules ; 
 ("2), Rules under Dominion Controverted Elec- 
 tions Act, and (.3), under Nova Scotia Contro- 
 verted Elections and Corrupt Practices Preven- 
 tion Act {.sec '2 R. & (J., Appendix) ; and (4), 
 Rules rel.iling to costs. These have not been 
 included, (is being already printed in convenient 
 form.] 
 
 Ownership and boundaries-Accretion- 1. Attachment of debts-Foreclosure - 
 
 Where an accretion lias not occurred so rapidly j Rules of April 11th, 1890 -Rule five of Order 
 as to liave been perceptible at any one moment i XXXVII of the .Supreme Court, 1884, is hereby 
 
1203 
 
 RULES OF COURT. 
 
 1204 
 
 repealed, iunl the folluwiiiL; rule substituted 
 tliiTefor : 
 
 " .'>. No Judge shall sit on tlie heiirini; of any 
 ii])i)eal from his decision or judgment iu Court or 
 at ("hand)erH, or on any motion for a new trial 
 in a cause or matter tried liefore iiim with a jury, 
 tnilesa at tiiu request of the majority of tiie 
 dudges of the Court." 
 
 Rule nine of Order XLIII of the Rides of the 
 Sui)rcme Court, 1SS4, is hereby repealed, and 
 the following rule suhstituted therefor ; 
 
 "9. 'I'iic costs of any apjdication for an at- 
 tacinnent of delitsand of any proceedings arising 
 from or incidental to such application, siiall l>e 
 in the discretion of the Court ora.ludge, l)Ut 
 the jiarty obtaining the order for attachment 
 siiall not lie entitled to any such, costs, if the 
 amount attached does not exceed tiiirty dollars." 
 
 Form 4, Part III, of Appendix A, to the 
 Hides of the .Supreme Court, 1S,S4, i.s hereby 
 rei)e!iled, and tlie following f">rm substituted 
 tiierefor : i 
 
 "The plaintiff's claim is for the foreclosure j 
 of ,■» mortgage made by to and 
 
 dated tlie of lands at and foi- 
 
 tile sale of said lands at pulilic auction in pay- 
 ment of tile amount due on the mortgage. 
 
 Amount of principal due 8 
 
 Interest to date of writ 
 
 Piemiums of insurance paid (if any). .'" 
 
 2. Controverted Elections, Dominion Act 
 
 —Death of respondent. &c.— Rule of July Ist, 
 1887 — If the respondent dies, or is summoned 
 to Parliament as a member of the Senate, or if 
 tlie House of Connnons have resolved that his 
 seat is vacant, any person entitled to l)e a peti- 
 tioner, under the Act in respect of the election 
 to which the ])etition relates, may give notice of 
 the fact in the Klectoral District, l)y causing 
 such notice to lie published in at least one 
 newspaper publisliod or circulating therein, if 
 any. and by leaving a copy of such notice signed 
 by him, or on his behalf, with the Returning 
 Olticer, and a like copy with the Cleik of the 
 Court. 
 
 [The Rules under the Dominion Controverted 
 Elections Act were revised and published in 
 pamphlet form in IHST.] 
 
 3. Controverted Elections, Local Act- 
 Service of petition, &c.— 5th R. S., c. 5, s. 6- 
 Rule of July 15th, 1886— It is ordered by the 
 Court that service of the notice and copy of the 
 petition made in accordance with the provisions 
 of section 6, chapter 5, Revised Statutes, 5th 
 series, shall be deemed a suthcient service of 
 
 the petition mentioned in section "21 of the same 
 cha))ter. 
 
 [For Rules now in force under al)r)ve Act, «»> 
 '2 R. & C, Appenilix, and oth R. S., c. ."), s. -JT.] 
 
 4. Crown side -Costs -Taxation -Kuie of 
 
 April 11th, 1890— The costs of all proceeding.^ 
 on the Crown side r.f the Supreme Court, (.limi- 
 nal as well as civil, may lie taxed at Ihdif.ix 
 before the taxing otticer, in accordance with the 
 provisi(ms of (h-di^r L.XIII. of the Rules ot the 
 Supreme Court, KSS4, as amended (Costs). 
 
 [Tile Crown side rules were enacted Deieininr, 
 1st, 1SS!», and were then published.] 
 
 5. Defences, Ac. -False, frivolous, Ac- 
 Rule of May 5th, 1885 — Defences ..r oilier 
 pleadings which are false, frividoiis or vexalimin, 
 may be .set aside, in whole or in part, on such 
 terms as to costs or otherwise, as the Court or 
 Judge shall think Ht. 
 
 6. Foreclosure - Parties to - Rule of 
 
 May 5th, 1885— When a mortgagee is dectaseil, 
 the. proceedings m foreclosure may be taken 
 ' and carried on by his executors or adniiuis- 
 ' trators. In foreclosure suits, except when 
 j otherwise ordered, it shall not be necessary t" 
 make the heirs-at-law, or devisees, or widow of 
 I a deceased mortgagor, parties, but the execuKns 
 ' or administrators may be proceeded agaiii.'-t, 
 and if there be no executors or administrators 
 within the jurisdiction, except when olherwin- 
 ordered, the cause may be commenced by petition 
 setting forth the facts of the case, and piayinL' 
 foreclosure and .sale ; and the Court may appoint 
 a party to defend, and may direct sucii pioeeeil 
 ings as may be necessary for promoting or [no- 
 tecthig the claims and rights of any jiersoiis wlm 
 may be interested in the mortgaged premised, or 
 the proceeds thereof ; nor shall it be necessary 
 to mako any ri'.stiii qw tniM or subseiiueiit in- 
 cumbrancer a party, but the Court may diied 
 such proceedings as may be deemed necessary to 
 protect their rights. 
 Set, also, link o/A/>ri/. lUh, iSSn, s,ii,m, L 
 
 1. Issues to be settled or agreed upon- 
 
 Form— Rule of March 28th, 1887-lst. The 
 
 issues for trial re(iuired to be decided by the 
 
 Judge under the provisions of section D of chap 
 
 ter 50, of the Acts of the Legislature of N'"" 
 
 Scotia, passed on the llth day of May, A. 0., 
 
 j 1886, .shall in all cases be agreed upon hy the 
 
 ' parties or settled by a Judge before the trial 
 
 j and a copy of the issues so settled or agreed 
 
 I upon shall be attached to the copy of the plead- 
 
1205 
 
 RULES OF COURT. 
 
 1-200 
 
 inys, delivered to the proper otticer, for tlie use 
 <if tlie .Fudge at tlie triiil. 
 
 •Jnd. iSuL'li copy of issues shall lie written on 
 (iiif side of the pa])er, with a s|)aee left Mank 
 liciciw r'aeli issue suffieienl to contain the clecision 
 iif tiie .Judge on tiiat issue. 
 
 3ril. Unless the uliove rules are coni])lied 
 witli the .Fudge who tries the cause will de.ide 
 (111 liiose i.saues only whicii he considers material. 
 
 s. Taxing Master Fee of Kule of 
 
 November 1st, 1886 -'I'he fee for the Taxing 
 .\lii~trr a|)])ointed under the jirovisions of elia]). 
 .•(t;, ot tlie Acts of l,SH.'», and the Act in ainend- 
 1111 lit thereof, shall he one ilollar (!?1.(NI) for tax- 
 in.' ca.il liill of costs, and certifying the same if 
 reijiiirfd. 
 
 The taxing iiiastei' may reijuiie payment of his 
 foi' hefore taxation. 
 
 I). >Vin(lini;-iip Act Kiiles of Court, enact- 
 ed September 17th, 1888, under Rev. Stats, 
 of Canada, chapter l'2d, section 92, Winding- 
 up Act— 1. Kvery petition for the winding up of 
 ii ci>iii])any under said chapter may he intituled 
 ill the matter of " The Winding-up .Act " and of 
 the company to wliicii such (letilion relates, 
 (lescril)ing the company liy its most usual style 
 or Hi'iu. 
 Eii:ili.</i <•'< III rii/ Ordi i-<. Xori mill r. ISi:.', Huh I. 
 
 •J. I'A-ery such jietition shall he advertised at 
 least ten cleai' day.s lietore the licaiing, once at 
 least ill two Halifax daily morning news])apers, 
 iuiil ill cases in which the ottice or principal or 
 last known place of business, as the case may 
 I'C, of such company is or was situate outside of 
 Halifax, then once at least in a local newspaper, 
 if any, circulating in such district. 
 
 //-., Hull .'. 
 
 X Kvery notice of application by petition for 
 winding up the business of a company, under 
 saiil chapter, nuiy be served at the othce, if any, 
 of the company, and if no oHice, then at the 
 piinciiial or last known principal place of busi- 
 ness (if the com])an3', if any such can be found, 
 upon any meuil)er, officer or servant of the com- 
 pany there, or in case no such inendter. officer or 
 seiviuit can be found there, then liy being left at 
 sucli (itlice or principal jdace of )>usiness, or by 
 lieiiig served on such member or members of the 
 flonipany as the Court may direct. 
 
 //-., Hnh 3. 
 
 articlavit rcferiing thereto in the form or to the 
 effect folhjwing : 
 
 " In Tin; Sll'KKMK CdII'.T. 
 
 " In the matter of, kc. 
 I, of , make oath and 
 
 say that such of the statements in the ))etition 
 now produced ami shown to me, and mai keel 
 with the letter 'A,' as relate to my own acts 
 and deeds, aie true, and such of the said state- 
 ments as relate to the acts and deeds of any 
 other person or ])ersons, I believe to be true. 
 
 " .''iworii to, &e. ." 
 
 Such atlidavil shall be madeliy the petitioner, 
 or by one of liic petitioners if more than one, 
 or, in case the petition is presented by a rom- 
 pany, by a director, secietary, or otiier ])riii- 
 cipal otlicel' thereof. It may be sworn befoie 
 the said petition is presented, and sucli atliilavit 
 shall lie sufficient /irlmn /urii evideine of the 
 statements in the jietition. /'/., A'/;/, -i. 
 
 .'). Kvery coiitrilaitory or creditor of the 
 
 coinpany sliall be entitled to lie furnished by 
 
 the .solicitor to the iJctitiouer with a cnjiy <if 
 
 tlie petition within twenty-four hours after re- 
 
 ijuiring the same, on paying at the rate of ten 
 
 cents per folio for such copv. 
 
 II,, Hull .;. 
 
 <). livery oi'dcr for the winding-up of a lom- 
 pany, and the appointment of li(|uidators, shall 
 lie advertised in sucii manner as the Court shall 
 direct. III., Hull -■ <; unit !.}. 
 
 7. ( Under s. "24. ) Tiie form of security to be 
 given by a liquidator, on his appointment, shall 
 lie a bond to the <i»ueen, to be made by two or 
 more siilhcieiit sureties, or such other form as 
 tiie Court shall order. Vl, lUili 10. 
 
 S. (Under s. 4'i.i 'I'he lii|uidator shall, witli 
 all convenient speed aflei- his appointineiit, make 
 out ami leave at the ottice of the I'rotliouotary 
 at Halifax, a list of the contrilmtories of the 
 company, ami such list shall lie verified by the 
 athdavit of the linuidator, or one of the li(iiiida- 
 tors, if there are more than one, and such list 
 shall, so far as is practicable, state the respec- 
 tive addresses of and the number of shares or 
 extent of interest to be attributeil to each such 
 contributory, and distinguish the several classes 
 of contrilmtories, and such list may fnmi time 
 to time, by leave of the .Fudge, be varied or 
 
 added to by the official liiiuidator. 
 
 Ih., linl" ,'.9. 
 
 4. Kvery petition for the winding up of any i 9. Ujion the list of contributoriea being left 
 eompiuiy by the Court shall Ije verified by an j at the office of the Prothonotary at Halifa.x the 
 
1207 
 
 RULES OF COURT. 
 
 120S 
 
 li(|iii(liitr>i'H mIiuII oKtaiii iin itiiiioiiitniciit fur tlie ' 
 Judgi- ti) Mi'ttlo the Hiiint', ami mIuiU give notice 
 in writing of siidi appoint nient to cveiy person ' 
 incluiled in siiili list, ami stating in wliat fiiar- 
 ai'ter and for wliat ninnluT of sliares or interest 
 8Ueh person is iiu'luded in tlie list, and in ease j 
 liny variation or addition to such list nhall at | 
 any time he made hy the li(|uidatoi', a similar 
 notice shall he given to every j)erson to whom 
 such variation or addition apj)lics. All sueli I 
 notices shall liegivtn ten clear days liefore the ' 
 day a|)poiiitcd to settle such list or sudi varia- 
 tion or addition. 
 
 ///., Hull. M. 
 
 10. (L'nders. 4!».) The result (.f the settle- 
 ment of the list of contriliutories shall he stated 
 in a certificate hy the I'rothonotary, and certi- 
 ficates may ho made from time to time for the 
 purpose of stating tlie result of such settlement 
 down to any particular time, or as t'o any parti- 
 cular person, or stating any variation of tiie list. 
 
 Ih., Ilnl, .It. 
 
 11. (UiKler s. 4!l.) Kvery application to the 
 Judge to make any call on the contriliutories or 
 any of them shall he made hy summons stating 
 the proposed amount of such Ciall, and such 
 summons shall he served four clear days at the 
 least hefore tile day appointed for making the 
 call on every contrihutorj' proposed to lie in- 
 eluded in such, call ; or, if tlie Judge shall so 
 direct, notice of such intended call may he given 
 
 by advertisement. 
 
 //*., Rule 33. 
 
 \'l. WJieii any order for a call has heeii made, 
 a copy thereof shall lie forthwith .served uj)on 
 each of the contriliutories included in such call, 
 together witli a notice from the li(juidator 
 sjiecifyiiig the amount or halance due from such 
 contrihutory in respect of such call, hut such 
 order need not he advertised unless, for any 
 sp<'cial reason, the .Judge shall so direct. 
 
 Ih., Huh. .Li. 
 
 l.S. At the time of making an order for a 
 call, the further proceedings relating thereto 
 shall he adjourned to a time suhse(|uent to the 
 day appointed for the payment thereof, an<l 
 afterwanls from time to time so long as may be 
 necessary ; and at the time appointed by any 
 such a<ljournnieiit, or upon a summons to enforce 
 payment of the call, duly served, and upon proof 
 of the service of the order and notice of the 
 amount due, and non-payment, an order may 
 be made for such of the contributories who 
 have made default, or of such of them against 
 
 whom it shall he thfiiight proper o make siuli 
 order, to pay the sum which by such former 
 order and notice they were respectively ic- 
 <|iiired to pay, or any less sum which luiiy 
 appear to be due from them respectively. 
 
 //'., Kill. .;.;. 
 
 14. Notices of met'tings of creditors and ii.n 
 tribiitories held under the said Act may be given 
 by mailing the same to the creditors and eun 
 tributorie.-: to tiieir last known aililress within 
 such ]icriod as to admit of their lieiiig delivfiecj 
 at '.east ten clear days hefore the meeting, ami 
 by advertisement in two Halifax daily luiniiiiig 
 newspa])ers at least ten clear days before the 
 meeting. 
 
 I.'i. \o contributory or creditor shiill he 
 
 entitled to attend any jiroceedings in Court ni' 
 
 before the Judge, unless and until he has tiled 
 
 witii the I'ldthonotary an appearance in the 
 
 matter, giving his name and address, ami the 
 
 name and ad''res» of his solicitor, if any, luiil 
 
 upon any change of his address or of liis sojieitur 
 
 his new address and the name and address <if 
 
 his new solicitor. 
 
 Ih., I!„h i;:. 
 
 It). (Under ss. '.'(» and 98.) Services ii]imi 
 contributories and creditors shall be efTccteil, 
 except when personal service is expressly le- 
 <|uired, by sending the notice, or a copy of ihe 
 summons or onler, or other proceeding, thiuiigh 
 the post in a pre-jiaid letter, addressed to the 
 solicitor of the party to be served, if aiiv, "r 
 otherwise to tiie jiarty liimself to his last kmnvn 
 address or place of abode ; and such notice er 
 copy, summons, order or other proceeding siinl! 
 be considered as served at the time the siiino 
 ought to he delivered in the due course of 
 delivery by the post office, ami iiotwithstainiiiij,' 
 the same may be returned by the post otfiec. 
 
 1 //-., RnhJlJ. 
 
 17. No service under these rules shall lieile- 
 cree<l invalid by reason that the Christian iiiiiiic, 
 or any of the Christian names of the person on 
 whom service is sought to be made, has heiii 
 omitted, or designated by initial letters, in the 
 
 . list of ecmtributories, or in the summons, (uder, 
 notice, or other document wherein the name nf 
 such contributory or creditor is contained, pro- 
 vided the Judge is satisfied that such service is 
 in other respects sufficient. 
 
 : ih., link (;i 
 
 18. (Under s, 77.) In these rules the expres- 
 sion " Court" shall include " Judge." 
 
1209 
 
 SALE 
 
 1210 
 
 NABBATil- 
 .SV( SIMIAY. 
 
 SAILOR 
 S' SHiPPINIw 
 
 SALE. 
 
 I. SALK OK (iOODS, |-_>(i!t. 
 II. SALK OK I.AN'DS, I'J-js. 
 
 I. SAI.K OK (KMJDS. 
 
 1. Action Tor goods sold and delivered 
 
 Oft'riet -Contract made by agent-Authority 
 of agent-— Judgment of County Court Judge 
 reversed — Appeal from a judgineiit i)f the 
 Cipiiuly Court .Judge for District No, I, in favor 
 of ik'fundant, in an action l)y plaintiffs for the 
 ])riir or value of goods ordered Uy defendant 
 tiirmigli an agent employed |py plaintiffs to 
 siiliiit orders, in the coiu'se of tlieir Inisiness. 
 IV'ffiiilant set up, as an ott'set, a contra account 
 i'lV nn advertisement of plainlitfs' liusiness in a 
 newspaper of which defendant was proprietor. 
 riaiiititfs had previously advertised in defen- 
 iliiiit's paper, Init the time hail e.xpired, and the 
 oi'iliT for the goods sued for was ol)tained liy 
 tliu agent agreeing to continue the advertise- 
 menl. 
 
 It apjiearing tiiat tiie agreement was made 
 without uuthority, tiie appeal was idlowcd witii 
 co^ts ;uid the judgment lu'low reversed. 
 
 Olaiid t't a./, v. Ihrtram, 7 R. i''C (i., 512 ; 
 >SC. L. r., ()l. 
 
 'i. Liability of a^ent to third persons 
 
 for misrepresentation or assumption of autho- 
 rity -I'laintiff lirouglit an action for tile price of 
 gDDils funushed to defendant, who professed, but 
 witliiiutany valid authority, to be acting for the 
 e.'itute of a deceased person named Richards. 
 Plaintiff and <lefendant were e(|ually aware of 
 tliii death of Richards, but yet the account was 
 still kept in the name of Richards, who had in 
 Ills life time had dealings of the same nature 
 witii the plaintiff. 
 
 Hi III, that if plaintiff could recover at all 
 tinder the evidence, which was doubtful, he could 
 niily do so on a count for the breach of defen- 
 
 dant's implied warranty of Ids authority to act 
 
 for tiie estate. 
 
 Oiitimii V. Doijl' , I R. \- <i., I. 
 
 3. Agreement as to payment for goods - 
 
 A vessel was l>uill and registered, twenty shares 
 I in the name of K. X. Crandall, a plaintiff, 
 ! twenty in the name of H. V. Cranilall, a ilcfen- 
 < dant, twelve in the joint luiines of K. Rigclow, 
 i Sons it Co., ))laii)tills. The oiitlits \\v\i\ pur- 
 chased by K. iJigclow, Sons iV: Co.. ami V.. V. 
 I and H. V. < 'randall, composing the tirm of ( 'ran- 
 dall liros., under an alleged agreement that they 
 should be paid fr>r out of the first earning liefore 
 ' any division was made among the owners. The 
 [shares of Crandall ISros. were afterwards tians- 
 ! ferred to ,1. K. & K. Rand, wlioclaiined a right to 
 divide the earnings before jiaying for thcMmttits. 
 The evidence wiis contradictory, both as to the 
 original agreement and as to the knowledge of 
 it, on tlie part of the Rands, but tiie Court diew 
 from t lie evidence tlie iiifereiue tliat tliere was 
 such an agreement, and that tlie Itands were 
 a«aie of it, ,ind decreed an accounting as prayed 
 for. 
 
 niijiliiir il III V. Unnil if nl., R. K. I)., 4!t.'). 
 
 4. Agreement to forward goods for sale 
 
 to pay advances— Equitable title— Transfer of 
 — Replevin — Bill of lading —Judicature Act 
 —Enforcement of equitable rights under — 
 H. it M. entered into an agreement, under whicli 
 M. was to supi)ly H. witli tin plates, money, 
 etc., tocariy on the Imsiness of packing lolisters, 
 and H. was to forward to M. all tliegoods which 
 he should pack, in order that tlie supplies might 
 be paid for out of the proceeds of the sales of 
 the goods, .\l. being paid a c(.iiimission for sell- 
 ing. This agreement was acted upon f.ir six 
 years, not only in relation to hdisters, litit also 
 in relation to l)eef, which H. was packing during 
 tlie latter part of this juMiod. At the end of 
 bSM-J, H. was indel)ted to M. froiii.s7,<KM»to.'<i»,(HJ<> 
 on the account between them. In the month c>f 
 Decenilier of that year, H. sliii)ped ISO cases of 
 beef, of the value of i*!,!!*!*!, on lioaril a .schooner 
 liound to IMctou, consigned to tlie freight agent 
 of the Intercolouiid Railway at that jdace, but 
 addressed to M. lie wrote M. informing him 
 of the shipment, and forwarded to him a bill of 
 lading of the gooils, on the margin of which .M.'s 
 name was indorsed. M. transferred Mie bill of 
 lading to plaintiff as security for aecomnioilation 
 indorsements, and plaintiff" brought replevin 
 against the station master of the Intercolonial 
 Railway at Halifax, who, at the instance of H., 
 refused to deliver the goods. 
 
 Held, Weatherbe, J., (ii-(')»;H/(H.7,that under the 
 agreement and course of dealing tietweeii the 
 
1211 
 
 SALE. 
 
 1212 
 
 piiitifM M. Iiiiil iiii «.|iiitiilpli' titlf to till' iiiii>t\s the price iij.'iii'il iiiMiii. .1. \V. tlicii U'fi tlic tiiiiii 
 
 wliii'h was tiiiiL-fiiiiil liy llic iiiil'iiKfiiifiit tcitlic mid ilid not siilisi.i|iifiitly cxcivisi' any a.'ts uf 
 
 |,lnji,,iU\ (iwiiiTsliip nvir tlif ciitllf. I'laiiitill', wlmwaMv 
 
 •J. 'I'liat n., ill jiursuaiuf nf tin' a^'iviiiifiit, iiiimr iiiiil wmkud away trinn lioiiic ami wa:^ iiii- 
 
 iiuviii^' taki'ii sti'ps t(i iMit till- yiHuls ill tiif jios- aiilc to caru for tlu' rattli', iiiaiU' an agrciiiiciil 
 
 session of M., till' ftirtt of tlu^ sliiiiiiR'Ht ami with .1. to do so for iiiiii. 
 
 otiiti acts tak.'ii together, giivo M. tiic legal as S. ininiiifiuiMl pioctedings in eipiily to set 
 
 well as the e(Hiitalple title, and placed the defeml- aside tlie eoiiveyance from T. \V. to his sons, 
 
 ant in the position of wrong-doer. and having Mieeeeded in doing so im exeeiition 
 
 .1/..'), that after tiie passage of the .linlieature was issued for the ecpsts under which the . attle 
 
 Act the .Indge iM-esiding at the trial was houiiil sold to |)laintitl' were levieil upon. 'I'lie sale to 
 
 to give etl'ect to the ec|uital>le rights of the par- |.laiiitilV to.ik place eighteen nioiilhs liefoie the 
 
 ties though the eaii.sehad l>eeiiat issuepreviously. issue of the exei'iition, and there was no evi- 
 
 J/.7V/. r-'/» V. M,-l)oml<l, ti It. iS: <'•, -4- ; deuce to show thai plaintitf, when he hniigiit, 
 
 (i (', L. '!"., 44.S. had leason to susiiucl thai .). \V. was iii>i acting 
 liniiit n'lli in the matter. 
 
 //>/<!, /,(,■ McDonald, ('.. I.- riiat IIriv Wiw 
 no evidence to sustain a finding that tiie side \u 
 (ilaintiti' was fraiidident and collusive. 
 
 /'((• Thoni)ison, .1.— Tiial susjiicioiis eirciuii- 
 staneus having lieen fully exiilaiiied hy the evi- 
 dence, there wa.s no ground to infer framl and 
 nothing to l)e left to a jury. 
 
 /'o'Rigby, J.— That there was slight evidence 
 
 Oh n/i/iKil III III' Siiiinni' Coiirl nf Ciniiiila, 
 
 Hi III, artirining the judgment lielow, Henry, 
 .1., (/;»</(///(;/, that the goods were sent to the 
 agent at IMctou to he forwanled, and that he had 
 no other interest in tlieni, or right or duty con- 
 nected with them, than to forwanl ihem to their 
 destination, and could not authori/e the agent 
 at Halifax to retain them. 
 
 11,1,1, a/so, that whetlier or , lot a legal tUle ^^^^^^^^^^ ^^^ j,, ^ .^.„. „^ „,^ ^^.,,.,J^, ,,,,; „y 
 
 to the goods passe. t<. M the pos.t.on of he ^^^^ ^,,,,^^,,,,^j,„^ „f ^,,^ ,„., ,,^.,„,,, ,,,,„,,,,„..„„„ 
 aLTcnt in retaining the goods was siinidy that ot , , ,,, , 
 
 ^^ , M , 1 1 „;f.,ll.. and slvmld he reversed. 
 
 , w,ong.doer, and M. had such an e.,.utal,le ^^^ _ ^,.^^^ 
 
 interest it. such goo. s, attd nght to the posses- ^^.^^^^ ^_ ^^^^_ ^^,^^^^^ ^^^^ ^^ ^_,. ^^ .^ eontra.li...l<.ry 
 sion thereof as would prevent the agent fn.n. ^^^^ ^, ^^^_^ ^^.^^ ^^^ ^^^^^^. ^^^ ^^.^^^^_,,^ ^,^^. ,, _,,. ,^ 
 wilhhol.hng them. ^_ ^, ^^ ,|,^ .^^. _ ,^^,^^^^. . ,^^j^ otherwise, where the .luesti.m is iis 
 
 V2 S. (". R., -417. ! t" t'lo smuidness of a conclusion arrivei'. at nii 
 
 adinitteil facts, and it appears clearly that liif 
 
 tin. ling is errone.ius. 
 
 .1 BadSeS of fraud - Sllspk'IOUH CirClini- The ( '.mrt will review a jii.lgment f.ain.le.l .m 
 
 j,t,aneea -Judgment below reversed- Power of an inference of frau.l m..re freely than where it 
 
 the Court to review erroneous findings -T.W. is hase.l on a contlict of testimony 
 
 llmily v. Ill//, ~ K. &.i',.. :W>: 
 7C\ L. T.,4(iS. 
 
 6. Bargain and sale- Condition -Mrs, M. 
 
 and .1. W., his s(m, reside.l on a farm which 
 they worked jointly an.l upon which eacii ha.l 
 place.l some stock. 
 
 In March, 18H0, T. W. assigned to J. W. and 
 
 .1 .another son, all his right and title to the „. „„.„„ „ - 
 
 firm an.l all his interest in the cattle, sheep, receive.lfn.iu plaintiffs certain articles ol tunu- 
 e'tc uiK.n it, inclu.ling a horse which he had ' ture, under the f.-Uowing written nieinorui..hiin, 
 nurdiased from .S. a year iiievious, in payment , signe.l l.y her, "Received from Messrs. F . .V >on 
 for which he had given his note. The eonsid- the following articles of furniture, for wliuli 
 eration for the assignment was the support and am to pay two hundred and twenty .hiUais aiul 
 maintenance of T. W. and his wife during the twenty-five cents or more, in monthly payiiients 
 remain.ler of their natural lives. of twenty dollars each month from date Hie 
 
 In June, 1880, T. W. was sued on the notehy : said furniture to remain the property of . • 
 ,S. and judgment recovered against him, and an & Son, till paid for in full, and in the event ot 
 execution issued on which he was committed to non-payment monthly, the said W. Iniser . 
 i-iil He obtahied his discharge under the Indi- Son can take the furniture back." 
 gent Debtors' Act in June, 1881. After the as- i Held, that possession delivered on coiuhlion 
 signment, the cattle remained on the farm in the I till payment shoul.l be made does not pass t "t 
 ciistody of J. W. and J. until December '2l8t, ' property, and the part payment made will > 
 1881 when J. W., having determined to leave forfeited, if the agreement be not fulliUed. 
 the farm, sold the cattle to plaintiff and received | Fraser tt al. v. Walluci:, 2 R. & C, 3Jk 
 
I2i;} 
 
 SALE. 
 
 ]'2\4- 
 
 Oil ii/i/iiitl hi /III Si(j,,,„i> C'ciiil I'/ CiiiKiilii, httiitcl Ijy liim in uny Ijuildiiig, wiiitlHUisi' or 
 //•III, iittiniiinj,' tlie juilgiiu'iit l.tlnw, tliiit the "loitK'oiu of II. I • in his lutping." 
 
 iiuMioiiiniliini sijint'd liy cK'tViKlunt const it uti'cl 
 ,1 I'iiiilinj; fontnut or aii'iingtint'nt with K. .& 
 SiPii not to ilistiiiin. 
 
 Wullaii. V. /-'ills,,; •_» S. C. i;., .-)•_••_'. 
 
 Thi' (U'fi'iicliint iiiivinj; .-ouj^'iil to hold jiluin- 
 titf ".s hidi's iinih;r tlif hill ot sulf, 
 
 //(/'/ t hill llit'io liuil lii'fii nci sikIi iui'i'|itaiKe 
 of till' goods liy •!. L. with the intention of 
 taking iiiwsi'ssion as owmr as to jia.ss tlif jdi)- 
 
 7. Broker selling shares of his own to )'*"■> 
 
 customer —When ii stock hrokci' .leils shiuus on 
 liis own account ami not in tlie oi-diiiary conisc 
 (if liiisincsM to a cnst<init'r with whom he has 
 liiiil previous dealings as a liroker, and who may, 
 tlierefoif, rely on his judgment, it is his duty to 
 
 J/ur, 
 
 cdtniuiniicate the fact to the pui'chasef. The 
 .ilistiice of such a coniinunication is sullicient 
 ground to set aside a verdict. 
 
 Sairyir v. 'irtii/, 'A N. S. 1)., 77. 
 
 '1/ V. Tilt /'i'iiiii /Iniik ii III., 
 
 7 K. & <i., lilii. 
 
 i^ii (I /•/mil to ffli Sii/in III' Ciiiirl nj Cdiiitilil, 
 //ill/, attirining the judginenl of the Court 
 lielow, that the contract of sale lietweeii .1. L. 
 and H. was rescinded l>y tlie action of .1, |„ in 
 refusing to take posses.sion of the goods when 
 they arrived at his place of husiness, ami hand- 
 ing them over to I). L., with directions to iudd 
 them for the consignor, and in notify'. ig the 
 S. Conslsnce, action by, for non-delivery consignor who acquiesced and adopted the act 
 — I'laintitl's ship])ed goods <in ilufendant.s' ves.sul, of .1. L., whereby the jiroperty in and posses- 
 to he delivered at Halifax to the consignees, sion of the goods became revested in H ; and 
 ■'lie or they i)ayiiig freight." After the ship- tliere was consei|Uently, no title to the goods 
 mini, and before action brought, the consignees in •!. L.,onAngiist I'.'th, when the bill of sale 
 piiid plaintiffs for the goi>ds. was made to the hank. 
 
 //'/'/, that the consignees were the proper i Tin /'ii'fon liankildl. \\ //arny, 
 
 jKisoiis to bring the action for damages occa- 1 14 ,S. (.'. R., (il7 ; 
 
 7<'. L. T., I. SO. 
 
 sidiieil by non-deliveiT of the goods according 
 t" tile terms of the bill of lading. 
 Ailniiis <l (il. V. Croshy a nl., •_' Ii. & (!., ;W1 ; 
 
 •J(". L. T., !»4. 
 
 10. Defendant pleaded a set*off to plain- 
 
 litis claim, for good.s Mild and delivered, and 
 under that plea gave evidence of a sale of goods 
 to plaintitt'by the defendant and his co-i)artner, 
 and an agreement made between plaintitf, de- 
 fendant, and defendant's co-partner, that plain- 
 till's claim should be paiil in goods from the 
 liaitnership store. The County Court Judge 
 gave judgment for the defendant on this evi- 
 lence, and the appeal from his judgment was 
 
 '.■mill, 2 R. & ti., ,S70; 
 ■JC. L T., 107. 
 
 9. Consignor and consignee- Rescission 
 
 of contract— Non-acceptance— Bill of sale — 
 
 On the 14lh July, ISSd. plainlitf forwarded a 
 
 lilt of hides to J. L., I'ictou, to whom he had 
 
 lieiii ill tlie habit of making sales for a number 
 
 I'f yciirs. The hides were not ordered by J. L. ,but 
 
 were shipped on the presumption that he would ,ii„„i^^^^j.|j ^^.jji,' cost's^ 
 
 a'LX'ive them as on previous occasions, subject to I /.. , >, 
 
 ' I C;oi((7i. ■• V 
 
 inspection and approval. On the .'ith August, | 
 sonic days after the arrival of the hides at I'ic- 
 tou Landing, one of the servants of J. L., find- 11. Delivery -Evidence of—Action brought 
 
 iiig them tilt-re, and without any special instruc- by assignee in name of assignor— R. & J. 
 
 lions to that effect, conveyed them to the Ian- assigned to ti. &T,, who assigned toplaintiff. The 
 
 iii'iy. J. L. being in financial dilKculties at the assignment included a debt <lue by defendant 
 
 time, ordered the hides lobe placed in aware- foi goods sold and delivered. Plaintiff sued in 
 
 house belonging to 1). L., to be held for the the name of R. & J. To prove delivery, a paper 
 
 lienttit of the consignor. At the same time he watt put in evidence, which purported to be a 
 
 telegraphed plaintiff as follows; "In trouble; bill of lading of the goods, but there was no 
 
 have stored hides; appoint some one to take sufficient evidence of the signature. An account 
 
 diaige of them." I'laintiff at once proceeded to was rendered defendant of the amount due R. 
 
 Picldu and saw J. L., who told him that he & J., together with a demand of payment by 
 
 might make himself easy about the hides, that ii. k T., the assignees. A copy of the account 
 
 he had placed them in D. L. 's store for him, and I and notice, and a, letter written by defemlant to 
 
 that he would get them. T., one of the assignees, in which he acknow- 
 
 On the I'ith August, 1886, J. L. executed a ledged receipt of the notice and made an offer 
 
 wllofsaleto the defendant Bank, covering all to compromise, were also put in. 
 the hides, etc., "owned by the said J. L., or, H'.ld, Thompson and Rigby, JJ., disKenfing, 
 
121.-) 
 
 SALE. 
 
 1210 
 
 tliiit lliero Wiis iKi HUlliiiont I'viduiici., cilliiT cif 
 
 glHldft Mulll illlll llt'liVt'll'll, or of llOCOUIlt Mtiltl'll, 
 
 to iiiiilde plaiiititl' to iccovcr. 
 
 I'll- 'riioinpiioli, .1. -- Wlii'ic iiii lalioii in 
 linaij,'lit liy iui ii.ssigiii'o in tlu^ imiiu' of tlic 
 iisMigiHir, iiiid till" iin.sigmiifiit jm ])li'ii(k'd, u 
 t'o]diciilii>ii i.s )j<Mid, Ht'ttiii^' u|i tli.it tho action 
 is l)iciiigiit liy the aNsij;iioi'. 
 
 /i'(imi((/ (/ al. V. Cviiuinijhain, (i 11. ilt (i., .T»7 ; 
 
 (iC. L. T., 4}K». 
 
 12. False roprescnlations to Induce sale 
 
 *^ Where goods delivered, vendor must dis 
 attirm the transaction before goods can revest 
 in liiin— I'hiiiitiH' lnoiiyht lutioii on u policy of 
 insuiHuee on eertain j,'oodM piiichiised from iiiin 
 liy one McM., who gave ids jnondsHoiy notes 
 iiiaile ])ayalih^ to plaintitf in payment. 'I'lie 
 goods weie iif tlie invoiced vahie of aliout 
 1J1,1(M> and were insured for ."<I,4(H», widcli plain- 
 titV expUiined was to cover tlie anticipated 
 prolits. I'>y .MeM.'s directions tlie goods were 
 sent to tiie Conli/in for shipment, and a liill of 
 lading was taken staling liiat tiiey were shipped 
 liy plaintiH'in the Corihl'ni, liouiid to Maigarel- 
 villc, to l)e delivered to McM. or his assigns, he 
 or they paying freight. Instead of licing taken 
 to Margaretville they were landeil at Moser's 
 Islaml, and the vessel taken a few miles out and 
 sunk, all of which was at McM.'s instance. In 
 his writ, plainlift' set out that he and McM., or 
 one or other of them, was at the time of the loss 
 interested in the goods, and that the insurance 
 was made for the lieiietit of the person or per- 
 sons so interested, and on the trial evidence 
 was given tending to show that no sale or deliv- 
 ery I') MeM. had actually taken place, and that 
 Mi-M.'s purchase was a fraud on plaint it!', and 
 that he was to have ))rocured a second name on 
 the notes. The jury found these facts in an- 
 swei to questions put to tiiem, and they found 
 a verdict for plaintitl'. sutiject to the opinion of 
 the Court. 
 
 //(///, that iilaintiir could not recover without 
 showing that he was the owner of the goods ; 
 that the facts in jnoof showed an al)S(dute sale 
 and delivery to McM. ; that even if McM. 
 had obtained the goods by false representations 
 (i. «., as to the additional name to be juocured 
 (m the notes), yet the property vested in the 
 vendee until the plaintiff' had done some act to 
 disaffirm the transaction, and tiiat the verdict 
 must be set aside. 
 
 Ontmm v. Smifli, 2 U. & C, 1H7. 
 
 18. Fishlne venture-Injunction -Plaln- 
 
 tiflfs claimed to be entitled to fish in a certain 
 berth, under regulations made by the Sessions 
 
 , on the authority of au Act of the la'gisl.uiuc, 
 Under the evidence, the Court inferred tii;it 
 defendants wtue aiithori/ed liy the piaiiilitis Id 
 shool their seine, 'plaintitl's to have half llic tisli 
 caught, and having done so, thtr defi'ihlints 
 secured a catch of lish, of whiili [ilaint ill's ciiiiiiu'd 
 half under the agreement. 
 
 y/«/«/, that the plaintitl's were entitled to lialt 
 the lish caught, and that the relief whiili they 
 
 I sought, namely, that defendants shotilil dtlivii 
 to them their share of the proceeds, or arcoiiiil 
 
 I to them, and in the meantime sluuild lie re 
 strained from selling, itc, was jiiciperly smiglit 
 in this Court. 
 
 Itoiinlij it al. V. l'oii;r ,1 ii/., ]\. ]•]. !»., lilt 
 
 14. Fishing voyage Sale or Interest In 
 
 the result of — I'lainliff levied upon t!ie iiitir 
 est of sharesmen in lish secured as the result nf 
 a fishing voyage and purchased the said iiilere.'*! 
 at the sale. Defendant having sold tiie saiil 
 interest tmder a bill of .sale whicli was fmind liy 
 ' the County Court to be frauiluleut, 
 
 Ht/d, that j)laintilf could recover notliiiig 
 fi'om defendant under the common counts, as 
 the nuist he was entitled to iindei- his piirchusf 
 was au accounting. 
 
 Co/llr V. /{,//, -I K. \- (;., i;u, 
 
 1 
 
 ; 15. Fishing vo) age -Setting aside rerdlct 
 
 ; —New trial— Evidenee—I'laintitlshipped tiiiu 
 
 fishing voyage on what is known as 1 lie "hall 
 
 cleai' lay," under which the master or owner lit' 
 
 I out the vessel, the crew supply a portion of tln' 
 
 provisions, pay the cook, etc., and the |iiiiccciis 
 
 I are divided in certain jirojiortions. Alter tlic 
 
 I voyage had been partly piosecuted, and bcfun; it 
 
 ! was completed, plaintilV was dismissed. In :iii 
 
 1 action to lecover the amount of plaiiitill's sliari' 
 
 I there was evidence by lheca)itaiu and liy eiittiis 
 
 in defendant's! ks of admissions of an iiiiiimit 
 
 due plaintiff, though it was contemleil lliiil 
 there had been no settlement, .ludgnietu liiiviiig 
 been given for the defendant, an uppcil wa.< 
 allowed and the cause ordered to be retried, a.^ 
 it might appear that jilaintitf was entitled (o 
 .something further than the amount adiiiitled as 
 due him. 
 
 Co/li< v. /Si//, 4 H. & (i., i;U, distiiigiiislied. 
 Joiii" v. Lorke, 5R. & (!., m. 
 
 16. Fraud - Suspicious circumstances - 
 
 Defendant, as Sheritt' of the County of I'icUiu, 
 levied upon a horse under a writ of exeoutimi 
 issued on a judgment recovered against d. 
 Plaintiff claimed damages, alleging that he liaJ 
 purchased the horse from C. prior to the receipt 
 of the execution by defendant. 
 
Ill 
 
 In ( 
 
 1217 SALE. 121H 
 
 At till' triiil ju.lgnu'm was given f..r (U-K^ii- /A/,/, that althoiigli tin- fact of the g<>,nU 
 ,l,iiit, (.11 til.! gi(.im,l that iin l,„mijl,l, .'.MUimt Iwing iiiadi- .lolivt'iul.li! l.y the hill ..f huliiig to 
 f(,i tiif iHiivhtiHiMiiiil salu of thu hoiM! was inadt' thi- ohUt of tiio shipptTs /.r/wia /«./.■ iiidiciit.'d 
 lictwfcn plaiiitiH" and (!. I'lainlitl' having ap- tliat thuy intfiidcd to rwivu thi- right of trans- 
 l"''''^'''' ft-'rring the goods, it was not conclusive ; that 
 
 //■/</, that as there was enough evidence to the sale was complete when Hih goods were 
 mixtain the judgment, partiuidarly if the learned shipped according to McK.'s order, and that the 
 .iiiilge helieved the defendant aiul his witnesses, phiintiH's had no insural.le interest, 
 (iii.l as he had an opportunity of seeing and I'uuhifal. v. Wyhh it al., '2 R. *('., 177. 
 
 heiuing the witnesses and judging of their crud- 
 il.iiity, the appeal must he dismis.seil. 
 
 \Vi.atherhe,.l.,,/M.„«^/„,,, on the ground that ™' """'''' "»'<* *» '"' delivered In tt 
 thm. was no evidence thai the alleged sal« was '' "^''^f'^^^^^^y condition" -I'laintill" contracted 
 fraudulent, hut n.ercly of suspicious circuni- ""'''''^•''••- t" ••'^f'""''"'t '^ •""«'"«{ ""V'-'I'inf, to ho 
 ^,,jin.^,j, delivered in a satisfactory working condition, 
 
 MrKi'iizii: V. Ilnrrii, 7 K. & (i., .'US; '""' hrought the nuichine to defendant's field 
 7 ('. L. T. 407, ^■''^'''''' '" tl'B L'ourse of a trial which he pro- 
 ceeded to make, a wheel hecame liroken, which 
 
 l(. Freight— Insurance of— To an UCllon I'l"'"t'"' promised to replace. Five witnes.ses 
 ill' goods .sold defendant pleaded that plaintitl's «^'>''t-' tliat tlie wheel was a material part of the 
 liiiil taken in payment a draft drawn by the ""ii^hine, and there was some evidence that it 
 iiuister on the consignees for freight, which draft ^*''^*' ""'• 
 
 liliiiiititls liad agreeil to insure. The plaintiffs //'■/'/, that the plaintiff could not recover the 
 cliaigcd tile premium to defendant, hut did not I"'''-'»^i 'i>* the machine was never delivered in a 
 insure, and the freight was lost. The County '^'itisf'i'^tory working condition. 
 Cmuii Judge found on the evidence that, al- f.airlor v. MHinihril, \ R. & (J., ;},">, 
 
 tlmugli defendants had intended plaintiHs to 
 
 •uie tiie draft, plaintiff's luid never undertaken 20. Infant trader purchases gOOds and 
 tlo so, and had not taken the draft in full appropriatea them on account of his board — 
 .-atisfiiction of tlie debt. Such appropriation does not render them 
 
 -Appeal dismissed. necessaries — An infant trader' Ijoughi goods 
 
 •lames, .1., ilissiitiiwi, hchl that in charging from plaintitf, pari of wliicii were found by tiie 
 tln-Mlefindants with tlie premium plaintiHs had Judge to have lieen given by him to liis l)oard- 
 Iwl liiem to assume that the freight was in- iiig iiouse keei)er on account of liis board. 
 •*"™' H<lil, reversing the judgment of Johnstone, 
 
 Covlnli ,1,0. V. Sfromirh H al., 4 R. & (i., 109. J., that the fact of the g(.(>ds being so applied 
 
 did not render tliem neces.saries so as to enal>le 
 
 18. (iOOdS deliverable to shipper's order, tlie plaiutitr to recover, and that the juilgment 
 not conclusive evidence of determination of; niust l)e entered f(.r defendant, with costs, 
 vendor to reserve right to transfer — I'lainiitJ's j Juikin^ v. Way, -J R. ki,., '.\\)\ ; 
 
 wei'd with McF., of .St. (ieorge's Ray, X'H'd, to \ ' '2 V. L. T., lOS.' 
 
 sell him certain goods wliicli were shipped on 
 
 l«Mr.l a ves.sel boun.l for that place, plaintill's 21. Interest on prlcC Of gOOdS SOld- 
 tikmgabillofla.ling in tlie usual form, ))ut in From what time recoverable- Interest is n-- 
 «iiidi tile goods were made deliverable to the coveiuble on goods sold on credit from the date 
 |liipiiM':..,ider, one of the copies of tae lull of at which the credit e.vpire.l, where such is the 
 "luig'-i-'ing given to .McF., or sent to hin. by usage of trade at the jdace where the goods are 
 
 l"^ vessel. I'laintitt's insured the goods as their sold, although there may have been no previous 
 
 *u property, but the Court, Wilkins ami Me- dealings between the parties, no engagement to 
 
 l'""iaM, JJ., '//.w/i//»;/, drew from the evidence pay interest, and no notice under the .Statute 
 
 ' le infeience that both the vendors and the ven- that interest would be claimed. 
 
 'Iw W recognized McF., as the owner of the lianiK rmai, tf al. v. Fuflerfoii, 
 
 »'""!s(luiiiig the transit, and at the time of the i 1 t)l,i., -t^m 
 
 '"«. plaint ills having taken a note from McF.'s I 
 
 '"'tl'er as collateral security for payment on the 22. Merchantable Character Of gOOds SOld 
 
 * 'j'lnt, and the plaintiffs' testimony, designed -I'laintitt's were the consignees for sale of a cargo 
 
 ;"^l"iw that the goods ha.l not been pai.l for or of oats, consisting of upwards of O.tXMt bushel", 
 |'*getl to McF., being considered doubtful an<l i imported from New York by parties residing at 
 ""tisfaetory, ^^ | Cornwallis. The oats were stored in bulk on 
 
1219 
 
 SALE. 
 
 1220 
 
 liounl u vcHhfl lyiii),' iit ilir MiiiUit W'li.ni. 
 l'liiiiititr« liml i'ii>{a>,'i'il iin iiuctininii' to xill ilif 
 I'lir^icp lit iinition, 1111(1 a Hull' Intil Ih'cii mlvi rtir-oil. 
 Sulw«i|Uflllly til lIliHiilir I'f till' lU'lrllilailtM liilliil 
 
 upon pliiiiitiffn :iiiil iiiiulu mimu m-iioiiil iiniuiriiH 
 in ii'^iiiil to till' rlmniftiTof tlif <iMtN, tlii-irtolm 
 
 ill |iiiynirllt fill' I'll tilill hIiiiiI'M ill a VChhcI . .ijlnl 
 till- " Uiwi'i'ii''i' l>rla|>," thru ilitrliar^iiij{ (ai'),'ii 
 lit N'fW ^■|•l'k. I'liyiiii'iit lit tlic liill wiiK itki^icI, 
 ■ III the ^riiiiiiil tliat, lit till* tiiiif iif tilt' iiiiii|ilt'- 
 tiiiii of till' iiililliiit .iiicl till' ti'iiiiKt'i r lit \\». 
 Hliiili'M, till' vifHHi'l hail lii'fll totally ili'Mtinynl liy 
 
 ami \vii^;ht, ami filially ajjict'il tn laki; tlii'in nH' fin- luul hml l'WihuiI to i-xint, ami tlial tlii'ii' Hii», 
 plaint id's' liamlH. 'riii'in wan im »ali' iiy naiiipli', iht'ii'fiu'i', im cniixi'lfiatinn fur tlu' hill at llii' 
 itml III! Ktipulatiiui mi the purl i if tiit- vi'IhIium, tiiiii' it uun ilrlivi'ii'il. 'riir i'\ iiliiuc sIiumkI 
 wlloM! eoiulnct WiiH fair iiml npt'ii, that thi' nalK that mi the iiimiiiiiK uf tlii' ilay mi wliirli tin. 
 ■ - • hill waH ili'liviTi'il iiml thf traiiMfor inaili', tlie 
 
 vi'SNi'l liiok lilt', ami that htfmi' tlii' trmi.tir 
 u'liH iiiaile lu'l' iiiiiHtH liail falli'ii, tlit' iiiNiili' li,i<l 
 lu't'ii f^ntti'il, till' ilt'okw l>iii'iii.'il mill part of tlie 
 diili'H. Ill thin (.'iiiiilitimi tin- vosKfl wan tn\ii-.l 
 lilt into thf harhnr aiul sriittk-il. 'I'lu' liiiil \i,n 
 
 ui'ii' tit fur any particular piirpuMi 
 
 Dtft'iiilants, mi thf t'vi'iiiiig lii'fm'f tlu' appniii- 
 till ilay of Halt', iiitt'i'vt'iifil iih piiit'liaKi'rN, ami 
 jjavi' till' aiutimii't'i' iiiKtriKtimH iimU'r whiili lie 
 iiotfil. Afti'r a lai'jri' iiuaiitity nf tlii' nats (smiif 
 l,,"i(HI hushi'ls) hail lift'ii ili^piiKt'il nf, tlir lialaiifL' 
 
 reiiiaiiiiiig in the vusct-'lV, holil wt'i'u tliscos ernl Hulpsi'i|iU'ntly raixiil ami snhl, tlu- priir nah/t'il 
 
 1 . !.. . .^•JU, 1 1 I t ,.( ....iul,..* :, 'I'l,.. 
 
 til lie iiiiiHty. 
 
 Til an lU'tion fur tlir iinpaiil halaiiee nf tin 
 
 pui't'liase nimit'y, ileftnilaiits pleaileil Miilistaii- liarge. 
 
 Iit'iiig !*r)(K) leMx than the inst nf raining it. Tlit 
 hulk was HuliNi'i|iU'ntly fiuiverteil iiitn ii oniil 
 
 Ht/il, Rigliy, .1., ilii-nitiiiii, that there wan 
 
 tiiilly that the I'liiilr"'* wax fur a cargo nf /;« < , ...^ ^, .. 
 
 rhdii/iili/i nats, lain n the linlil nf the vessel not such a tntal failure of emisiileratinii ii« ti 
 
 anil iiicapahle of iiispiition. A verilii't having form a ilefeiiee tn an actimi nii the Inill 
 lieeii fiuiml for ilefemlaiits, 
 
 //«/</, that the nature of the transactimi pre- 
 elilileil the iilea that a iiiercliaiitahle eharactei 
 was an iiiulerstninl cnmlitinn of the contract. 
 Both iiarties hail eiiual op|)ortuiiities of inspect 
 
 The iiegotiatinlis fnr the sale were cninliU'tiil 
 liy cnrresponilence. On .July Otli, ISH.'t, plain- 
 titr wi'fite that he was prepareil to iiiiike thf 
 transfer on payment of a specific price. On 
 the 11th, ilefemlaut telegraphed plaiiiliir, •'will 
 
 noiii |iaiLiun umi ^.-tjiiin .'|.|.-', 1 %i.iiv.^« ". |.^-w n,^ ..V.., ■, - — o- I k 
 
 ing the cargo, ami the vemlors solil ami the see you first next week ; pay for ten sliiut's 
 
 . . . . , 1 .1 • . 'iM. 1. , 1 »_i. . i:.l.. " 'l"l... C... .,•..1 .lol:,'!.,-,' ..t 
 
 liuyers limiglit the specific visilile thing. Tlu 
 rule for a new trial was therefme niaile aliso 
 lute. 
 
 Delap ami take title." The tire ami ilelivcry of 
 the hill sueil on took place mi the littli. 
 
 I'lr Weiitherhe, .J. — That the contract wis 
 
 Fm^r't al. v. Snlhnt ii/., 1 N, S. 1).,4'24. comiileteil liy telegram of the Uth, ami that the 
 
 property woiilil pass, notwitlistamling the pnst- 
 
 ii. Misrepresentations made verbally 
 
 before written contract— riaintiiriimught suit 
 to compel the performance hy ilefenilant of a 
 contract in writing for the purchiuse of a house. 
 During the negotiations ilefemlaut askeil ex 
 
 lionemeut of the time of payment liy the defin- 
 
 ilant. 
 
 /'(/' Rigliy, .J.— The postponement of the lime 
 
 of payment introdiiceil a new eleiiu'iit, which 
 
 o -o woiilil reipiiie acceptance to constitute a com- 
 
 pressly as to the ilrainage, which plaintiff assured • ^^^^^ contract 
 
 Whifman v. Pnrb r ./ a/., (i H. & C, h"'! 
 
 «C. L. T.,44S. 
 
 25. Purchase of goods fl-om agents- 
 
 hini was perfect, but which in fact was seriously 
 defeetivf, It appeared that the representations i 
 hiitl been niaile by the plaintiff in good faith and 
 
 in ignorance of the facts, and the house being _„. „ - , 
 
 occupied defendant could not inspect it for , rendered in name of agents-Suit by prin- 
 himself. Nothing was said about the matter in cipals— Uefemlants had dealt with H. .^ I ". H 
 the written contract. some time, not knowing them to be agents M 
 
 Hdd, that in the suit for specific performance pliiintiif, but considering them as i)iiiK'ipal>, 
 the verbal representations made previous to the the bills rendered to them by H. & I o. w"i|j 
 written contract must be taken into considera- ^ always in their own name. Having piu'chani 
 tion, and that, being material representations a iiuantity of plaintiff 's goods from H. &C'i.,ii 
 on the faith of which defendant entered into the bill was rendered to them in H. & Co.'s i>a'"*'i 
 contract, they constituted a defence, although but subsequently another bill was sent m t le 
 plaintiff did not know them to be untrue. name of plaintiff. H. & Co. became n.se^en 
 
 'llwmmi V. Lonqard, R. K. D., 181. j after delivery of the goods, and defentlanl .H' 
 
 not pay them for them, as they hail a contLi 
 
 24. Partial destruction ofsubject-matter: account. On being sued by pil'i"'"^' ^|J^^ 
 
 of contract of sale before acceptance-Defen- j pleaded the contra account, and pud tlie a 
 dant was the drawer of a bill of exchange given i ence into Court. 
 
1221 
 
 SALE. 
 
 1 2-22 
 
 Tlif »vi.liii,f,a llif iiimI was very .■.iiiliiiclic- '21), SillC b> t'OnMUble UlllIlT (lIMrCHH 
 
 ti.ry aiitl oimHicliiijj, Imt tlii' jury IuiiikI tci warrant -A coiiittiilili' wi/.i'il a lu.riii' iimlfr n 
 
 (IctfiidalitM. uaiiaiit (if ilintifMH aiiil ciiileavnrt'il to mi-11 tliu 
 
 H<l<l, tlial llic Midi, t i-IkhiIiI iioI ln^ .li^tllllK■.l, naiiir l.ili.ri; tin; litiiiii .lay ..f tliu Wiiinilil, lait 
 
 iiiiil that till- |iayiiiiiil iiilcp ( 'mil wan no a.liMJM Wiis |ii«'\tiitf.l fidiii .loiii^' ho, I'liit'dy liy the 
 
 sum ot ilftviKlantst' lial'ility li.yoii.l the aiii.nint party troiii whoiii tliu Iioih.' wuh takfii. Siilmt'- 
 
 Ml. 
 
 lid! I'll V. 
 
 AiiilifHoii if III., ;i N. S. 1>., Isl. I 
 
 (iit'iitly to tlic I'i'tuni titty tl.u coiiotiililL' hoIiI tliu 
 
 OISI'. 
 
 lltlil, tliat tl;t!halu waMVailtl. 
 
 U'hin'iin V, /'ninrli, ri//. , •_» N. S. I)., '.NS. 
 
 MK Kald b) iiia»U>r of ship Hhcii ul- 
 
 20. Kt'prrscniutloii m lo onncrKlilii of 
 
 gotxU TrnnHt'er of title by delivery - Entop- 
 
 \m\ Tradiny voyages i'lainiiti' wan in tlic 
 
 haliit tif f<ii|i|ilyiii^ II. with ninnt'y aiitl ^tioilx fia- lowed 
 
 liii.linis' iiui|MinfM till the I'oiulition that all On (i/i/mi/ to tin I'rinj Ciiitinil, 
 
 pititls prooure.l l.y H. l.y way .if piinliuse or //,/,/_ thai the inantfr of a vuhNi'l haw no power 
 
 vxriiaiiK.- were t.i lie tlelivere.l In plainlitl' who t,. Nell her m. aH to allect ih.; InHnreix, except un- 
 
 «a:t t.) Hell then, to pay hin a.lvaiueH. ( ;, having .j^,,. i.j,vuinHtaneeH of HtriiiKent neceHnity : Hlieii 
 
 ..litaine.l ju.Ignient agaii.Hl H. was alMiut to levy ...jmunHtanfeH an, after Hutlieient examination .if 
 
 "" '' '"■I" >■ •"•I"i'Ki"K '" H. in which plaintill' |„.,. ,,,„„li,i,„|, ,if,,,,. ,,v,.ry ex.rti.m in hin power, 
 
 im.lan inlerent an.l whi.li he was almut t.i Hell within the nieaiiH at his .linp.isal, t.i extricate 
 
 wli.ii he was in.lu.'e.l t.ial.Htain fr-mi .loing so i„.r fr.mi peril or to raise fuii.ls f..r the lepair, 
 
 hy iiiainlitr who iiif.irine.l him that the «clio.inei j^.^ve iiim n.. alternative liut to sell her as sh,. is. 
 
 Kaslcrn Clipper was then in t ;uy8li.ir.), that the tW../y»/./ Mu/nn. Iiisiimnr, Co. v. Haiti itii.r, 
 
 g.Miii^ .m lioar.l were liiose .if ll. anil that lie 
 tinilil levy upon them there or wait until the 
 Vfssel came to Halifax. (!. failed to levy on 
 till' g.iii.lM then on lioar.l the Kastern Clipper, luit 
 cuusiil a levy on a cargo which arrive.l at Halifax 
 fdiii' niontliM afterwar.ls an.l wliicii ha.l lieeii 
 (iniciire.l in the same way. 
 
 On the evening previous to the levy H. ha.l 
 gime to plaintill's otiice an.l there ma.lu an.l .le- 
 liveic.l toplaintirt's lio.ik-keepera memorandum 
 
 L R., (I 1'. (J., :<l!); 
 .TJ L. T., .■)!(). 
 
 31. Sale of buNlncsH .i|i;recnicnt Prior 
 
 verbal agreement for sale of "good will" 
 inadmissible — Where a 'larty enters int.) a 
 written agreement, under .seal, for the sale f.ir a 
 certain amount of all his right, title, siiare and 
 interest in a certain business, evidence is inad- 
 
 ., , t 1 'll t 1 !• t.i 1 1 niissilile lo prove a iiri.ir verbal agreement for 
 
 III the form of a l>ill of lading of the guuds, and , , r ! , ■,, ,, , . , 
 
 L. , . , , , ,; ., .11., the sale of the "goo.l will of the business for 
 
 ha.l received instructi.)ns where to land tiie 
 
 , „ » . .1 I • 1- . 1 1 a sum in ad.lition to the amount su spueified in 
 
 L'oo.ls. He went to the place indicateil and was , '^ 
 
 . 11111 , ihe written agreement. 
 
 IJuilhy V. Laciy, II L. T., N. S., 'iT.S, dis- 
 tinguislie.1. In that case the prior collateral 
 agreement was not interfered with by tiie sub- 
 setjuent written agreement. It was a parol 
 condition on which the written agreement .le- 
 pended. 
 
 Austin V. /JooHe, 2 Old., 149. 
 
 [iiTparing to land the go.ids when they were 
 levit.l ii))on by the Sheriff. 
 
 Hdd, that what occurred in plaintiff's ottice 
 wiis a delivery of the cargo l.i plaintiff, and tiiat 
 the latter was not estopped by iiis representa- 
 tion to (J. from taking the transfer of the goods. 
 .McDonald, C. J., an.l McDonald J. lUsxi iitinij. 
 Forsyth v. Bill, <> R. & (;., ;{74 ; 
 (jC. L. T., 489. 
 
 32. Sale offish in storage -Bight to hold 
 
 21. Sale by agent— goods by bailee for unpaid purchase money — 
 
 Delivery of part — 1). S. stored a lot of Hsh 
 See PRINCIPAL AND AGENT, ^ith defemlants, which he afterwar.ls sold to 
 
 R., giving him a memorandum headed " R. 
 '28. Sale by bailee without authority— bought of l). S." signed by the latter. R. paid 
 Irover is niaintainalile by the owner of property half in cash, and gave I). .S. a note for the bal- 
 •igiiiiisi the purchaser, where a thinl jMirty to ance, which was indorsed by tlefendants, and 
 wliom the owner has given the use of the property retired by them at maturity. R. , after the sale, 
 has sold it without authority. The rule is that became insolvent, and plaintiff, his assignee, 
 where there has been a misuser of the thing ' produced at the first meeting of creditors a 
 Itnt, there is an end of the bailment and trover \ statement of assets, the first item of which was 
 18 maintainable. j "236 bbls. mackerel stored at Black Brothers," 
 
 Sihlty V. SihUy, 2 N. S. D., 325. i defendants. One of the defendants attended 
 
122n 
 
 SALE. 
 
 1221 
 
 tl... in.M.lii.K im.l «.iw 111.' Mtat.'iu.nt, .I'luiiikinK .Irni.-l lmvm« i.-fiiMMl to .luliviT tliu l-K- will, 
 
 I.. tlioH.. i.r.-«M.t timt !.•• w.iH i...t iiwai« ..f any -mt ..-urity ; but thu I'vi.l.'iu'.^ an t.. tl.v .Iwiml 
 
 lUh of |l.'MHl..r.'cl with lliuMi. l.iil li.' «avi- ii.> wan i.'Kar.l.Ml m uiiHaliNfa.tnry. Tlirr.. win ii,. 
 
 Hi.d. ii.timali..M to tlir ,.H«iui..'.. or iiih| tor. .,v1.1.m..v that .I.-frii.laiil ha.l .'mt rauH..,l a Mir 
 
 liii.l, loii^ aftur, tlie .l..ffii.hint» ina.lu a oUiin on v«y of tli.- lo«s or that any Hurv.-y iiia.lr hy 
 
 t\w .'Htatr for th« amount of th." notf, ntating phiintiH' ha.Ux-.Mi .•ouununifatnl to Inui. 
 
 tliat thoy hfhl no ntvurity, aiM a .livi.lfU-l wan On Huh., nv.niudn thu appeal from th.' ju.J^ 
 
 paiil Ihfui. Thf aH.Hiyni'u luiviug l.rou«ht an mrnt of th.> County Court in favor of pliuiiul' 
 
 action of trover for thu li«l>, rm;oviMf.l a vunlict. wan HUxtaiiifd. 
 
 //./-/, that thi' .Iffi'ii.hintH had no right to n- 
 lain tlu! t'lHli, no I'laini of lifii hi viliK hftui m-t 
 up, ami thai l>y liohliiiK tli« notu iiiul tlaiming 
 for tho amount on tliu insolvent Mtato, th«y 
 
 iJftinuH, .1., ilisitntinij. 
 
 Fullmov V. Yoniiij, I It. it ( i . , .'mII. 
 
 ,„r u». 84. sale of goods No nureement or 
 
 wouM have loHi all riuht to ivlain posHCHMion of delivery IMiiintiH' l.rought an a.;tiou ag.uii.t 
 
 ■ I If I . . iti.t <>1li..rii<l 1.. Lit 
 
 thf Hih, if they had uver hail any nuoh right 
 Harl, Ai^i'iii"'< v. Troo/i tt nl., '.' K. .V C, ,V>1 ; 
 
 •_>(•. L. T.,»:). 
 
 On nppiat lo Hn Supn mi- Coiirl of Cniituin, 
 Held, Strong, .1., iii-»<ntHwj, tiuit tlie appel- 
 lants Imviiig failed to prove the right of jnoperty 
 in theiiiselveH, upon which they relied at the trial, 
 the leHpondent had, us against the appellants, 
 a right to the immediate possession of the tish. 
 
 •J. That S. had not stored the tish with ap- 
 pellants hy way of Heeiirity for a deht due hy 
 him, and as the appellants had knowledge that 
 the tish sued for were inuluded hy the insolvent 
 ill the statement of his assets, to which state- 
 ment they made no ohjection, hut proved against 
 the estate for the whole amount of insolvent's 
 lutte, and received a dividend thereon, they 
 could not now claim the lish or set uji a claim 
 for lien thereon. 
 
 Trooi> v. Hart, 7 S. C. K., :A'1; 
 •JC. L. T., •_».-> 1. 
 
 a3. Sale of goods -Ilcllvery- Plaintiff 
 
 agree.l to haul logs for the defendant and deli- 
 ver them on the hank or l.row of a river and j 
 have the same surveyeil, iiayment to he made hy 
 the middle of May then following. He and his 
 son swore that the logs had heen delivered at the 
 proper place an.l put in the position most fav- 
 
 .lefeiiilants to recover an amoiuit alleged tn In' 
 df! him for sleepers sohl and ilelivercd hy liiiii 
 to them. A verdict was found in his favor, Imt 
 there wan no evidence of any agreement on tlu' 
 part of plaiiititl'to sell to defenilants, or of tla' 
 latter to purchase, or of any delivery of gooils 
 to defenilaiils hy plaintiff for and on his owii 
 account. 'I'lie venlict was accordingly set aside. 
 Mi'l'hi, V. I'l'lorla Coal Minimj Co., 
 
 ;»N. S. 1),. (14. 
 
 3.-». Sale or hiring with right to purchase 
 
 -Not a bill of sale Does not require to be 
 tiled— Usury — C. I', olttaiiied a piano fnnii 1'. 
 & ,S, on hire, with the privilege of iiuichasiiig it 
 for ;*:<.■)(), by liaying certain instalments williiii ii 
 certain time. Among other conditions of u 
 written ii;,'reeliient entered into liy C. I', ut the 
 time of receiving the piano were, that it .sIkhiM 
 remain the pro|)erty of 1'. & S. until fully |micl 
 for, that in default of any instalment they might 
 resume possession without previous dciiiiiihl, 
 and that C. I', should pay interest upon the 
 purchase money at 7 per cent. C. 1'. paid wily 
 two instalments amounting to .*«1,')<), and tlieii 
 lecame insolvent. On 1'. & S. claiming the 
 liiano, they were opposed by H. L., a ciiMlitor 
 of C. 1'., who claimed under an assignment niinle 
 to him l>y C. P. as security for his debt, .iinl 
 received by him without any knowledge nf thi' 
 
 propel [.nil.;.; <i.i'» !'»»• »•• .-..- i - receiveo o^ iiii.i .in.n"tii. .*»v --c- 
 
 orable to the defendant. The defence then called ^g,.t,enient with 1*. .t S. This as.signiiient v; 
 
 fy -1 _ _ - i ^..,. ♦ln.f il*** \f\{t\i xct^vi* ti*»t , • .^1 1 1 • » 1 Tlw. Iii.l.rii ill Fn.mi 
 
 duly Hied and registered. The Judge in IushI- 
 veney decided against the claim of 1*. 4 •'<■ 
 
 five witnesses to prove that the logs were not 
 
 placed in the proper position. Defendant, al- ^ 
 
 though contending that he was not bouml to i ^^^^^ jj^j. gi.„m„i8 that the agreement v, itli them 
 accept the logs, was at)out disposing of them to ^^.^^^ ^.^jj f^„, „s„,.y^ interest at 7 per cent, being 
 one Thompson, aiul called upon plaintiff with a j„.ovided for ; that having left the piano in C. 
 view to carrying out that arrangement; '>ut ; p. '« possession after the time for his paying fw 
 
 1 .1- rl'l »„„ .....1 .lufn.irlllllt BWOrfi that tllB .. , . ; 1 ^U„.. ......1.1 i...» oi.f ,111 flll'll' clililll 
 
 tiieir 
 1 agreement snouiu nave ueeii mcou...-. .ogisterei . 
 
 On mmeal to the. Supreme Court of Xora Si:oUa, 
 peatert hisevKlenceasioine pioiicL ..c..,^., ... i' ii„„t„nnlv 
 
 the first instance, which the Court held to be ! HeM, that the Usury btati.te d.d no a ) 
 improperly received. Previous to the defendant at all, as it was not the case of a oan bn c ^ 
 being called he had, on cross - examination, 1 ditional sale ; that the claim of I .*: ^ «asn 
 
 both Thompson and defendant swore that the , ^ j^^^^^ expired, they could not set up their 
 plaintiff refused to deliver them without security. I j^gj^jug^ ^ f,ona fde purchaser, and that 
 The plaintiff, although recalled, did not give any | agreement should have been tiled and regis 
 
 evidence to contradict this statement, but re- 
 peated his evidence as to the proper delivery in 
 
\'2'2^ 
 
 SALE. 
 
 122({ 
 
 Iir.jiKliif.l liy iluii iKit hiiviiiK tiiktii hmk tlir lion, the ii.ptu htivin« Lffii iinlorMd t., liim uficr 
 
 piiiM" ax hodii iiH ilif tjiiu. wiiH ii|i; timi ('. |','m tnatiirity. 
 
 ivi^iiriiii'iit will) tlit'iii, nut liciri^ in (lit! niitiitc 
 
 iif II liill of Miklt', iU<l not i'('i|uii't! tolK! rt'iJiiHtcrcil, 
 
 mill llmt V. h S. hIiiiuM Iiiui- the |iiiiiiii on pny 
 
 iiiK' I" II. L. tliu liiiioiini tlii'y liail rcuuiviHl on 
 
 Jin iiri'ounf friiin ('. V. 
 
 MiliilO'ih V, M< 1,10,1 ,1 ii/., (i U, fi (!,, I'js ; 
 
 «C. L. T.,4m 
 
 .17. StoppaKe in tranNitu PlalntlflTii, mer. 
 
 cliimtM, doing liuMincHH in lUwton, U. >S., MliipiKil 
 
 W'lun olitiiiiiing tlic nilf /(iii from tl:i} .IikIku 'v i|imntity of oil to A. & Co., iiifnliantN in 
 ill liiMiilxfiiiy, I'. .V: S. iliil nut iirdiliiit! tin- Halifax, \. .S. Ik-twccn tliu Mhipniont of tliu 
 
 niKi'ii'l i'K'«'<'"i''i>t <'f ''• I', with tliL'Tii, 
 
 oil anil itH ai rival at the latter port, A. .V Co, 
 
 //i/'/, th.U they \vi'r« not tlififliy preiluiUil l«'ciinic iiinolvent, Init pinvioiiH to their asNign- 
 
 (iMiii ptoiluiiiig it at tin- argiinient of iho ruli', ""-'"t. '"i" <li« pui'lMtHt! of prottiuting tlie Hhippcrn, 
 
 iir aii'oiinting for itH non-proiliiution. ami without any intention of accepting or tak- 
 
 lu ihi Mnitn- rif I'yh, ."J N. K. D., ;«'«'. '"M 'l«'Iivery of the oil, or exeiriMing any control 
 
 j over it on their own account, liy a cuHtoniliouHO 
 order made liefore tlii! goodH were diMcharged, 
 
 3(1. Statute Of Frauds Fraud and mlii' traiiMfern.i the oil, together with iiie i.iii ..f 
 
 repreHentfttion l»efeiiilant« piiivliawd a <iuan lading, to {',. ft Co., to l.e lield for and on ac- 
 
 lity Iif growing treet., and gave in payment count of tiie HJiipperH. The oil having l.een 
 
 ihiief.ir their proininHory note, which after claimed hy the creditorH of A. & Co. under the 
 
 |)iiK>iiig tjirough tile liaiidM of two otiier lioliiers, aNsignnieiit, 
 
 mill after it liecame due, wii« indoi'Med to the //,/,/, tjiat the tnuiHitUH had not heeii com- 
 
 liliiiiilitr for value and without notice. To an pleted, and that the stoppage by (!. * Co., 
 
 ii.nnii iiy jilaiiititr lo recover the amount of the acting for the plaintitrsi, wiih good. 
 
 iKilr, ill feiiiiaiitH pleaded, among other thingH,— Itlrhnnl^on <l rtl. v. Tifiiilii;/ <' fi>., •2'S. S. 1).,'.>M1. 
 I. 'I'liat they were induced to make the note 
 
 liy fiiiiid ; 
 
 HN. Supplier and outflts for veHsel - 
 
 '.>. That there never wan any conNideration Liability for— I'laintiflk liad, for some years, 
 fur the note, JiiaNmuch as the trees, in payment furnished outlits and sujiplies for a fishing ves- 
 fiMwliicii it was given, were not of the cliaracter sel, of which defendants were part owners. In 
 iuiil immlier reiiresented, ami were worthless Istitl it was agreed among tiie owners tiiat J. 
 iiiiil uiiiiierchaiital.le ; McC, one of thum, should manage the vessel on 
 
 ;t. That the note was not properly stamped. : his own account, paying all exjienses, and that 
 
 A defence was also raised uinler the .Statute ■ the others slioulil receive certain proportions of 
 Iif Fiiiuils, on the grounds,- - the proceeds, l.ut of this agreement plaiiiiitl' had 
 
 1. Tliat tlic trees were g<MnlH and merchan- . no notice. 
 
 ilisc, and tlicre wa.s no receipt or acceptance of 
 the goods, and m. jiart payment ; 
 
 Hfdf, that defendants were liable for goods 
 supjilied by plaintifl's to J. McC. in the usual 
 
 That the contract having been made in j way after the agreement. 
 
 iffiTi'uce to growing trees, rciiuired a note or 
 meimiiiinilum in writing. 
 
 It iippcarcd from the evidence that there was : 
 no Wiuianty as to the cotidition of the trees ; ! 1 
 
 llyirsoi) 1 1 nl. v. Lyon^ tt a/., '_' N. S. 1)., 4.")8. 
 
 39. Undisclosed principal — Defendant 
 
 •ought goods belonging to plaintiffs from A., 
 
 tlwt tlie defendants had an ojiportunity of j their agent, A. being indebted to the defendant 
 
 exiiiiiiiiiiig tlieni before making the contract, and 
 tlwi tlu'v iisked to be relieved, after the contract 
 Wiis ciiiiipleted, on another than the niisrepresen 
 tution alleged. 
 
 Hi hi (I.) That the plea of fraud and mis 
 rtprt'.seiilation was not made out ; 
 
 at the time ; defendant testified that A. did not 
 disclose at the time of sale that the goods were 
 not his own ; A. and his bookkeeper testified 
 that the princijMils were disclosed at the time the 
 goods were ordered, and jiroduced a niemoran- 
 ; dum, headed with plaintiffs' name, containing the 
 
 (2.) That the contract for the sale of the order signed by defendant, but declined to pro- 
 trees had no connection with any interest in land ; j duce their books. Defendant denied that plain- 
 
 (3.) That the defendants could not set up tiffs' name was on the memorandum, when signed 
 Hunt (if consideration for the note as a defence ' by him. The jury found for defendant for §75, 
 
 toiin action by an innocent holder. 
 
 the excess of his offset. The $75 was subse- 
 
 McDoiiald, C. J., ,l!.ise)i/lii(i, on the ground | quently remitted by defendant. 
 that the contract was one on which the original I //eld, that the verdict could not be disturbed. 
 
 payees could not recover under the .Statute of j 
 Frauds, and the plaintiff stood in the same posi- 
 
 The Bowmanvilk Jfachine Co. v. Dempnter, 
 
 •2R. &C.,273. 
 
1227 
 
 SALE. 
 
 1228 
 
 On appeal to the. Supreme Court of Canada, 
 Held, that the defeiulant, hiivint; ijiuchased 
 the goods without notice of A. 's being an agent, 
 and A. having sohl tlieni hi his own name, could 
 sot otf tlie debt due to him from A. personally, 
 in tlie same way as if A. iiad beentlic princi^ial ; 
 and that the verdict shouhl bo sustained. 
 The RowmanrUk Machine Co. v. l)emp>it^r, 
 
 2 f*. C. R., 21. 
 
 40. Vendor of cargo renders account, 
 
 including charges foi- insurance — No insur- 
 ance effected— Cargo lost— Vendee liable for 
 price of cargo — Defeiidants, being owners of 
 the brigt. Koderick Dhu, addressed a letter to 
 plaintiff, owner of the Camjibelltoii Coal Mines, 
 requesting him, in case their vessel proceedc<l 
 to Big Bras D'Or to load, to furnisli a cargo of 
 coal to the captain, taking his note, or selling in 
 such nuvnner as plaintitl' was accustomed in sucli 
 cases. Defendants, as owners, guaranteed piiy- 
 ment, and re(iuestcd plaintiff' to insure amount 
 of cargo. Plaintiff, in compliance with defend- 
 ants' reijuest, supplied the coal, and took a 
 promissory note for the price, covering, also, a 
 charge for premium of insurance and policy. 
 On tiie same day he mailed a letter to his agents 
 at Halifax, enclosing the note of hand and ))ill 
 of lading of cai'go, ami rciiucstiug the agents to 
 effect insurance for the amount of the note, j 
 This letter was proved to have been received, 
 but no insurance was efl'ected. The vessel 
 sailed two days after the mailing of the letter, 
 and was lost on tlie passage. Tlie master, in 
 his testimony, said : "I told McKenzie (plain- 
 tiff's manager) I wanted something to show the 
 coal was insured, and he gave me this paper 
 (the bill of parcels). 1 asked where it was 
 insured. He said that was Mr. Campbell's 
 business. I told Mr. Campbell al)out my desire 
 for insurance. He said he would give no one a 
 cargo of coal unless ho insured it himself." 
 Witness also said he would not have signed the 
 note unless he supposed the cargo was insured, 
 and would not have sailed. Defendants having 
 refused payment of the note, and a verdict 
 having been found in their favor, 
 
 Held, on a motion for a new trial, tiiat though 
 the master of the vessel might not unreascmably 
 have supposed that plaintiff had undertaken to 
 efl'ect insurance, there was no such contract as 
 to vary plaintiff's rigiit to payment for his pro- 
 perty sold and delivered to defendants at their 
 request and order. 
 
 To constitute a contract there must be the 
 mutual agreement of l)otli parties, and not the 
 notion of one party (mly ; and there must be a 
 mutual and common apprehension of the subject 
 
 matter, They must not honestly differ in their 
 meaning ; without such mutual agreeniiMit and 
 understanding there is no contract. 
 
 Cawphell v. McCad-e. >al.,l N. S. 1)., :W. 
 
 41. Warrant) Of goods Breach Of -E>i. 
 
 denes- A contract am<uinting to a warriinly of 
 goods sold is violated if the articles, owing to a 
 secret defect existing at the time of sale, aftcr- 
 wanls liecome deteriorated in value. 
 
 The sale of No. 1 .salmon witliout expres.s 
 warranty amounts to a warranty tliat tlie ti.-sii 
 are in the condition prescribed by law for tish of 
 tliat brand. 
 
 Hard;/ <■> a/, v. /-'nr/c/.rD^Aw f n/., .lames, 4;!'2. 
 
 II. SALK OF LANDS. 
 
 I 
 
 1. Agreement for sale of land good 
 
 under the Statute — How rescinded by parol 
 —An agreement for the sale of lands good iindei 
 the Statute of Frauds may be rescinded licfoie 
 breacli of it by parol, provided tliore is ii total 
 abandonment of tiie whole contract, and iiul 
 merely a partial waiver of some of its tcniis ; 
 nor does the valiiiity of such rescission dii)enil 
 on the existence of a consideration, 
 i linn/aij v. I'rnn«, R. K. !>., SIT. 
 
 2. Agreement for sale of land -Part 
 
 payment — Rescission — Recovery of amount 
 paid — Wliere A. entered into an agreement m 
 purciiase land, and paid part of the purdiase 
 money to R., and it was subseiinently agiewl 
 between the parties that the bargain should lie 
 rescinded, and nothing was said at the time 
 relative tc the return of the money paiil liv .A., 
 A. is nevertheless entitled to recr)ver the anioimt 
 
 back from R. 
 
 Camphill v. Hi-ndir.iou,'l'\'\wm.,'X& 
 
 I 3. Bond for sale of land - Failure to 
 
 complete purchase — Agreement to apply 
 ' money paid on account of purchase to rent- 
 Recovery back of money paid on purchase in 
 excess of rent— Defendant entered into a Iwml 
 i to plaiiitifl" under seal, in which it was icoiteil 
 , that plaintiff" had agreed lo purchase from ile- 
 ; fendant a tract of land for 81,200 with interest, 
 as follows : One year's interest to be paid in mic 
 year from date of bond ; one year's intere.ist m 
 two years ; and one year's interest, together 
 with the principal, in tiiree years. It «as 
 further speciHed that if default should he iiwie 
 in the payment of the principal or intereift, as 
 agreed upon, plaintiff should become a tenant to 
 
1221) 
 
 SALE. 
 
 1230 
 
 (lefi'iiilant at an tinmial rent of 872, and that all The defendaiita wore partners at the time of sale, 
 iwyiiientsmadeliyplaintitf, or upon certain speui- hut dissolveil partnership in Noveml)er or De- 
 tied notes of hand indorsed hy way of security cend)er, 1H83. 
 
 for tlie purchase money, sliould ))e applied to the PlaintitT alleged that he had paid defendant 
 interest or rent, as tiie case inigiit l)e. Aii')tlier !<2H0, on January 'Jiid, J SSI, hut the only pay- 
 part of the agret'inejit stated tiiat wlmtever sums nient appeared to have ))een hy setting off pri- 
 wort' ajjplied, as aforesaid, the remainder sliould vate del>ts due hy King, one of the partners to 
 lie applied to reducing the jH'inciiKil sum. And, plaintiff against the price of the trees. It was 
 fiiitlier, that in the event of plaintiff failing to urged on Itehalf of the plaintiff at the argument 
 |)iiy. as aforesaid, and surreiulering up tlie hut not pleaded, that at the time he paid tlie 
 piemisus at the end of tiie three years, all jiay- money he had no knowledge of the failure to 
 Hunts made in that ca.ie heing applied towards ship tiie trees. 
 
 rent at tlie rate aforesaid, the said note and the ffc/d, that the plaintiff, in order to recover, 
 
 sail! indorsed note shall lie given hy the said must sliow that he was not aware, at the time 
 
 (leftiidaiit, itc. he pr,id the money, of the failure to ship, and 
 
 //./'/, tiiat the jilaintiff was entitled to recover that 'here must he a new trial with leave to 
 
 the amount tiiat lie hail ])aid defendant over and plaintiff to amend. 
 
 aliiivf tlie amount approjiriated towards the rent CttlUr' v. McKeen ef at., "JO X. ,S. K., 
 
 fiirtiic period for whicii lie occupied. (S R. & (i.), I. 
 
 Holmis V. J)arisoii, 3 R. & {',., (il. ' 
 
 8. Part performanee of contract for -- 
 
 4. Failure of consideration -In order to 
 
 Thougli tlie .Statute of Frauds requires the irans- 
 
 iiriiVLT liack money paid hy iilainlitt', undi'r an r c • .. .. • i i i. i i • 
 
 ' ' •' • ' fer of an interest in lands to he made in writing, 
 
 iii'ieiineiil for saleof lands to iiim, on the I'round ,i , ,., i „ . . » t ti i ^ r 
 
 ' r 1 ' o ' tlie parol agreement tor tlie sale or transfer 
 
 f failure of consideration, idaintiff must j-'ive i, ,,.:„ , i ,.,i r .„„ i • t i i ■ 
 
 ' " having hecii partly perlornied, is enloiceal)le in 
 
 equity. 
 
 Mnhoii V. McCul/i/, 1 X. iS. 1)., 'A-2;i. 
 
 iviilciice of theter'MSof the agreement. 
 
 McDoiiall V. MrDoiiahl, James, 41. 
 
 3. Measure of damages— Wlien lands are 
 
 liiiiLrained and srdd, tlie measure of damages is 
 till' price for whicli tliey were sold. 
 
 Li/iirh V. I'iii'j, - 'I'hoiii., 41.S. 
 
 6. Misrepresentation- In an action on a 
 
 promissory note given in paynieiit for land pur- 
 ehaseil liy defendant from plaintiff, the defend- 
 ant lelicd on an alleged misrepresentation as to 
 tlif i|uaiitity of land contained in one of the lots 
 
 >ul,|. 
 
 //'/'/, tiiere lieing no evidence that the mis- 
 ii-pii^eiitation, if made at all, was made falsely, 
 (II witii intent to deceive the defendant, or to 
 iiiiluce liini to do that which lie otherwise would 
 nut iuive done, that the defendant could not 
 suochmI. 
 
 ///// V. MfL'od, ". R. vSc (;., 2m. 
 
 I 
 
 «. Money paid, on price of goods sold, 
 
 under mistake of facts -Want of knowledge 
 of the facts must be pleaded and shown in 
 action to recover — Judgment was given in the 
 pliiintitr's favor in the County Court in an action ' 
 til I'l'cnver a sum of money paid on a contract for 
 tlie purchase and sale of a riuantity of trees, 
 «iiiiii it was alleged defendant hail failed to 
 (Iflivt'r. 
 
 I'iie sale of trees was made in August, 1S8'2; 
 tiicy were shipped to plaintiff' in Novemher of 
 tlie same year, hut were never received by him. 
 
 0. Purchase at auction — Deposit — Re- 
 covery of — Plaiiilitf gave his note foi' tiie dei>i)sit 
 required on a purchase at auction, l)ut suhse- 
 (juently refused to carry out tlie contract, and 
 sought to recover the amount of iiis note. 
 
 Hi 111, on the authority of lilaik v. (,'i'iiier and 
 (•'nty V. Whilman, '2 Thoni., 157, that he could 
 not recover. 
 
 J.iiiil<ni/ V. Xirid-ir, 2 X. S. 1)., 10<>. 
 
 10. Sale of land -Autliorlty of agent — 
 
 Speciflc performance — Defendant drew up and 
 l)laced in the hands of Allan, a real estate agent, 
 a iiiemorandum in the following form : "I will 
 sell ten acres of lands (including the water lots), 
 as also two and three-quarter acres of lands 
 hclonging to Judge Jolinstoiie adjoining, for tlie 
 sum of four liundred and thirty dollars jier acre, 
 equal to .?.'>,482.r)0, or til, 370 12s. (id., and on 
 which sum I will allow you a coinmi.ssion of two 
 per cent." The niemorandiim then specified the 
 terms of sale. Allan entered into a written 
 agreement with plaintiff for the sale of the land 
 on tlie terms mentioned. The agreement not 
 heing carried out, plaintiff brought a sjiit for 
 siieciric performance, setting out the two agree- 
 ments. 
 
 Hi'lil (I.) That the memorandum handed to 
 Allan was a power to sell on the prescribed 
 terms without restriction as to purchaser, if the 
 terms could be obtained, 
 
1231 
 
 SALE. 
 
 1232 
 
 (2.) Thivt plaintiff's right to a specific per- 
 formance rested entirely on the defendant's 
 memorandum ; that defendant was no j)arty to 
 the agreement entered into by Allan, and tliat 
 when the latter brought into the agreement any- 
 thing that went beyond the memorandum he ex- 
 ceeded his authority. 
 
 {'A. ) That the agreement could not be imported 
 into the memorandum, and the latter being of a 
 vague and uncertain ciiaracter and not suthcient- 
 ly describing the lands, specific performance 
 could not be enforced. 
 
 Sections (>1 to 70 of the Practice Act, chajjter 
 1.S4, R. S. (,Srd series), apply eijually to demur- 
 rers in e(juity as at common law, 
 
 Hormhy v. Johiixloiii', 3 N. tS. 1)., 1. 
 
 11. Sale of lands Condition precedent- 
 Action for consideration money — In an agree- 
 ment fur the wale of lamls, where it was stipu- 
 lated, that when the land was surveyed the 
 plaintiff should give the defendant a liond for a 
 <l'-'e<l, or a deed on being secured the purchase 
 money, 
 
 Held, that tlie survey was not a condition 
 precedent which would prevent the plaintiff 
 from recovering tlie consideration money. 
 
 Jfoivi^ V. Hutxlon, Cochran, 61. 
 
 12. Sale of land— Payment of moiety of 
 
 purchase money — Foreclosure by vendor, 
 who buys and sells at an advance— Relief — 
 Where a bargain was entered into between the 
 I)laintiff ami defendant, for the sale of lands, 
 and the <lefendant, after ])€iying a moiety of tlie 
 purchase mcmey, (juits the country without com- 
 pleting liis purchase, leaving the plaintiff in 
 possession, and, in his absence, the plaintiff 
 takes out proceedings as in foreclosure of mort- 
 gage, under which the projierty is sold and 
 bought in by him f<pr a n'.uch less ])rice than tiie 
 original jiurchase money, and soon aftoiwards 
 re-sold to third parties at a large advance. 
 
 Ht/il, in an application by defendant to be 
 allowed to come in and defend, that he is en- 
 titled to relief in eciuity, and tliat the plaintiff 
 must be considered as his trustee, and, as such, 
 bound to account to him for tlie jn'otils arising 
 from such re-sale. 
 
 Spurr v. Eldtrkin, Cochran, 47. 
 
 13. Specific performance -Sale of lands— 
 
 T., by written contract, agreed to sell to 1). a I 
 farm for il'iOO, but subsecjuently refused tfi ' 
 execute the deed, and forcibly ejected 1)., who 
 had been put in possession. I), brought a suit 
 for specific performance to which T. pleaded ; 
 several pleas, attacking the agreement on | 
 
 various grounds, but raising no distinct issue nf 
 circumvention or fraud, though by way of nciinl 
 in his fifth plea he stated tiiat he had lieon 
 over-reached, and tliat I), had by undue iulviui- 
 tage endeavored to obtain his projierty for an 
 inadequate consideration. The jury found tlmt 
 T. was not incapable of making a proviileut 
 bargain, that the agreement was dulj- exjiliiiiicd 
 to him at or before the execution, that I), iliil 
 not depreciate the value of the farm tn liini, 
 knowing it to be of greater value than tlio 
 amount of the purchase money ; but they also 
 found the value of the farm to be .*!'J.")<), ami that 
 1). had enjoined on T. secrecy as to the liiiiiriun. 
 
 JIdd, Bliss, J., dixsf ii/iii'i, tlnit 1). wiis 
 entitled to a decree for specific perfonnamc. 
 
 /'(V Hliss, .1. — That he should rather lie left \'< 
 his remedy by action for breach of contract. 
 
 Jhd'iii V. Turin, \ 1 01.1., 1. 
 
 S" .tlCTION, 4-ASSICiSME.\T, li 
 
 14. Statute of Limitations - Statute of 
 
 Frauds — Plaintiff brought action in lS7.'{tii (.ii- 
 force ))ayuient of .'*4(KI and interest for lainl 
 alleged to have been purchased by dcfemlant, 
 the deed being made out to defendant's lniitlur 
 and left with a third ])arty, to be delivered tn 
 the defendant on his handing him a note for the 
 purchase money, signed by himself ami his 
 lirother. Defendant, in bis answer, cmitra. 
 dieted all the statements in the writ and set mit 
 that the sale was made directly to his brothii, 
 though he admitted that he would iiave ii5;si.-.ttil 
 him by joining in a note for the purchase inniuy. 
 The evidence was conflicting, but the iilkgLil 
 agreement having been made in ISWi. thefcunt 
 held that the delay in suing was itself a \m- to 
 the action, if, as plaintiff conten<led, the ayiie- 
 ment was to be considered as the original umlti- 
 taking of the defendant, while, on the other 
 hand, if it was to lie viewed as a guarantee, the 
 Statute of Frauds prevented a recovery. 
 
 ll'dhrtmn v. 117//, R. K. D., 1!):. 
 
 15. Terbal agreement for sale of lands 
 
 inadmissible to show consideration — Where 
 a note was given to ])laintiff in part payment 
 of purchase money of lands, under an agrcciiieiit 
 for sale and purchase not reduced to wriiinj;, 
 held, that evidence could not be given of the 
 consideration, and that plaintiff could not re- 
 cover the amount of the note. 
 
 lilafk V. (•'(■itnr ,/a/., 2 Thoni., !•": 
 Lindsay v. Zirirktr, 2 N. S. 1).. H*'. 
 
 16. Verbal agreement for sale of land- 
 Vendor takes poBsession- Where the coiisiilei- 
 ation of a promissory note was the purchiise at 
 land of which the maker took possession, 
 
1233 
 
 SCHOOL LAW. 
 
 1234 
 
 tlimigh thero was no written agreement for the [ validity of tlie mortgages and of the proceedings 
 sale of the land, and the consideration was not in the foreclosure suit were also attacked. The 
 expressed on the face of the note, the maker action was tried heforc a Judge without a jury, 
 tnnnot set up as iv defence the want of consider- i and a. verdict found for tiie defendants. 
 
 (•my V. Whilman ft a/., 2 Thom., 1.57. 
 
 [XoTK. — In the argument of (I'ray v. Whi/maii, 
 wliifh was decided after li/rirk v. (iisin r <t at., 
 the former case is distinguished from the latter 
 liy the fact of the maker of tl>e note going into 
 |)(istit'ssion. The Court in (iray v. Whitmuii 
 iiiiTely said tiiat it was clear there must he 
 judgment for the plaintiff.] 
 
 II. Win — Mortgnge by testator - Fore- 
 
 i'tion. Hibi, that the plaintiffs coidd oidy recover on 
 
 the strengtli of their own title, and were hound 
 to show a title superior to that under which 
 defendants had [Kisscssion. As they had not 
 shown such title the motion to set aside the 
 verdict must he discharged with costs. 
 
 Kiariuy <f «/. v. Crrihimii it ciL, 
 
 (i(". L. T., 14:{. 
 
 0/1 appinl to thi- Suprnni' Court of Cniinila, 
 
 Hi III, affirming the judgment of the Court 
 closure of- Suit to sell real estate for payment ' below, tliat even if the sale umlcr tlie decree in 
 (if debts— Decree under— Conveyance by pur- tlicClianccrysuit was invalid, the title to the lan<l 
 chaser at sale under decree —Assignment of would be outstanding in the mortgagee or those 
 mortgage — Statute confirming title — A. M. ; claiming under her, and the phiintiffs therefore 
 iliid in 1S.S7, and by his will left certain real ] could not recover in an action of ejectment, 
 cstalclo his wife, M. M., for her life, and after I Snntih-, that such sale was not invalid, but 
 her death to tiieir children. At the time of his passed a good title, Henry, J., iloiililiiii/. 
 ik'iitli tiiere were two small mortgages on the said //, /il, a/.-,o, that the Statute, 4tli It. S., c. M, 
 rwil estate, which were subseiiuently foreclosed, s. 47, vested the said lan<ls in the defendants if 
 hut no .sale was made under the decree in such tlicy had not a title to the same before, Henry, ,1., 
 suit. In 1841, the mortgages and t.ie interest • i/oulitin;/. 
 
 iif the mortgagee in tlie foreclosure suit were! Kiurmy v. Cr< i/iiinn, \4 S. C. H., IVA ; 
 
 assigned to one J. I>. U., who, in 1849, assigned <i ('• I- T., 839. 
 
 and released the same to M. .M. In IS4I, i^,,,^,.^. („ .^j.^^^.^^j j„ ^,,^ j.^.j^.y (.„^,„^.ii ^„, 
 M. M., the administrati'ix, with the will of A. .M. i^.f^gi,,] 
 .iniiexed, tiled a bill in Chancery for the ])uri)ose 
 I'f liaving this real estate sold to pay the debts 
 iif the estate, she having ])reviously a])plicd to 
 the (Idvernor in Council, under a .Statute of the 
 I'nivince, for leave to sell the same, wiiich was 
 afused on the ground that such leave cfudd not 
 lie granted for the sale of a particular part of the 
 estate, an<l if the whole estate was sold and there 
 shduld be a surplus, there would be no mode of 
 a])p(irtioning such surplus among the devisees. 
 X decree was made in this suit, and the lands 
 scilil to M. M. She afterwanls conveyed said 
 lands to the Connnissioners of the Lunatic 
 Asylum, and the title therein passed, by various 
 .\cts (if the Legislature of Nova Scotia, to the 
 present defendants, a Statute having been passed 
 in 1874, confirming the title to the said hinds 
 in the Commissioner of Public Works and 
 Mines. M. K., devisee under tiie will of 
 A. M., brought an action of ejectment against 
 
 'he Commissioner of Public Works and Mines SCHOOL LAW. 
 
 iiml the resident physician of the Lunatic Asy- 
 lum, whieh was built on the lands, and in trie 1. ACtS 18«5, C. 2S, S. 8 — 
 >^^imrse of the trial contended tiiat the sale under Held, that " all future assessments " in Acts 
 tlic decree in the Chancery suit was void, iiias- ISO"), cap. 28, sec. S, referred to assessments 
 iimch as the only way in which land of a made after the assessments contemjdated in sec. 
 Jeceased person can be sold in Nova Scotia is 7 should have been completed. 
 ^' petition to the (iovernor in Council. The : In n Pimo it al., '2 Old., 178. 
 
 SALVA«E- 
 Su SIIIPPINU. 
 
 SATISFAtTIOX - 
 
 I. RY WAY OF ACCORD — 
 
 s ' ACCORD AXD SATISFACTION. 
 
 II. OF dUDCi.MKXT — 
 
 sa JUDGMENT. 
 
1235 
 
 SCHOOL LAW. 
 
 123G 
 
 2. Assessment Appeal from to Sessions : 
 
 — Power of Sessions to set aside assessment- - 
 WiieiL' the groniiils (if iiii iippual from an assess- 
 nicnt for school rates are simply matters of detail 
 tlie appeal should lie piiiiiarily to the Court of 
 Sessions and not to tile Supremo Court. 
 
 Tlie Court of .Sessions has power to set asiile 
 a wiiole a.sse.ssment where it manifestly api)ears 
 tliat it lias liuen irregularly and therefore ille- 
 gally made. 
 
 //( r> Ax.ii.t.iiiiiii/ School Italf, 
 Sir/lnii >,:, Aii/!<ioi,i-<fi, :i N. S. 1)., 1'2'_'. 
 
 3. Cy pres -Testator, who died in 1830, 
 
 devised jiroperty to the Kirk .Session of .St. 
 Matthew's Ciiureh, in trust to tit it up for a, 
 school under tlie charge of the .Session. The 
 property went into the jKisseasion of the devisees, 
 but no steps were taken to carry out testator's 
 intoiitions. Proceedings were instituted in the 
 name of tlie Attorney-Ciencral to ohtain a decree 
 aiitiiorizing the adoption of a scheme to carry 
 out testator's intentions, the devisees and tile 
 heirs-at-Iaw lieiiig made parties. None of the 
 defeiKlauts appeare<l and a default was entered. 
 C)n application lieing made for a reference to a 
 Master, tlie Court allowi'd the defendants to 
 raise the i|ucstion wiietiier, the devisees having 
 taken no proceedings, tiie jiioperty did not 
 revert to tlie heir-at-law, wiio then appeared by 
 Counsel and had a day appointed for the argu- 
 ment ; but on the day appointed for argument 
 none of tiie defendants appeared, and the cause 
 was referreil to a Master, who rejiorted that the 
 funds should be appropriated towards tlie erec- 
 tion of a Higii .School r.uilding in Halifax, the 
 Kirk Session to have the power of nominating 
 two free sciiolars, tiiey iiaving concurred in the 
 rec.'iiniiiendation with tliat condition. No oppo- 
 sition being made to tliis report, and no counter 
 scheme being suggested, tlie report was con- 
 fiiiiied and the scheme adopted. 
 
 Altoriiey-Gfiif'ra/ v. Arrri/ f> nl., 
 
 R. E. 1)., 253. 
 
 4. Dartmouth -Liabiiit} of, for school 
 
 rate - 4th Rev. Stats., e. 32, s. 52 ; of. 5th 
 Rev. Stats., c. 29, a. 43 — Act incorporat- 
 ing Town of Dartmouth — 1873, c. 17, as. 
 27 & 28, N. S. — The Act incorporating tlie 
 Town of Dartmouth provided that the Town 
 Council shoulil have jurisdiction over the support 
 and regulatirm of the public schools, regulating 
 the as.sessnients and collecting the assessments, 
 and that they should vote, assess, collect, receive, 
 appropriate and pay whatever moneys were 
 refjuired for oounty assessments, poor, school, 
 and other rates ami assessments, and should 
 
 have within the Town all the poweis relating 
 thereto vested in the S(^ssioIls,(irand.)llI y,S( lioul 
 .Meeting and Town Meeting. Hy anollier sentimi 
 it was enacted that, after the passing of tiie 
 Act, tiie Town should be set oft' into a se]);irate 
 scho(d section, and slionld have tlie exiieiidiiiiic 
 of all rates raised within its limits for tlie 
 schools of the Town, as also of all govermiieiit 
 and school grants for such schoids, which giants 
 should be paid to the Town. 
 
 //'Ill, that notwithstanding these enactiiieiit-^, 
 the Town Council was bound to assess and pay 
 over to the County Treasurer its ratable iiroiim 
 tion of the a-ssessment of thirty cents jier lieail, 
 provideil for liy 4tli Rev. Stats., c. 32, s. .'rj. 
 //( n: Ikirlmonlh Siliool .4<i»'>.«;h<'/(^ 
 
 3 R. vt ('., 147. 
 
 .i. Dartmouth - Mandamus - 4th liev. 
 
 Stats., 0. 32, s. 52— A inniiilamiis was apjilinl rm 
 at the instance of the Sessions for the County of 
 Halifax, to compel the Wanlen and Couiiuil of 
 the Town of Dartmouth to assess, on the ]iin]i. 
 erty of the Town liable for assessment, tl j sum 
 of i*!."),!)?!) for its proportion of County si.lioi>l 
 rates for the years 1873-7H, under section .V.' nf 
 4tli Rev. Stats., c. .3'2. 
 
 //I'/il, that the Warden and Town Couiuil 
 ought to have assessed in each year for the jii'i- 
 portion of tlle(^n^nty school assessment |)ay.ilile 
 liy the Town, but that in view of the Act to 
 amend the Act to incorporate the Town [Arts 
 I.S77, e. 40), section 3(»of which provided tluit 
 the sum to be voted at the annual iiieetiiig of llii' 
 Town ft)r the estimates, including ordinal y aipl 
 extraordinary expen.ses, should not excecil in 
 any year the sum of .'?1.'>,(X)0, there was a ilirti- 
 culty in the way of issuing the maiiilamn<, ii« 
 asked for. 
 
 <piatrc, whether there should have been a iv 
 lator. 
 
 /Vr .lames, J.— The City of Halifax i> iwi 
 , exeni]>ted by chapter 3'2, 4tli Rev. Stat.s., fnmi 
 contribution to the County school rates, hut i- 
 eiinally liable with the Town of Dartnioutli. 
 
 The Supreme Ccmrt of Nova Scotia, wilhou! 
 
 determining whether the reipiired assessment 
 
 was possible, and was obligatory when lli>' "'i' 
 
 was issued, made the rule iii"! for a win'l'i"!"' 
 
 ■ absolute, leaving these questions to be diti'i 
 
 j mined on the return of the writ. 
 
 I (^)nl'e.n v. Ton-n Covn'-il of JMrtiiioii'li, 
 
 ' 1 R. &<;.,4"'.'. 
 
 On appeal to thf Sitjinme Court of Civuvhi. 
 
 Held, .Strong and (iwynne, J.I., di^'^'^nHwu 
 that the granting of the writ in this case was iii 
 the discretion of the Court below, ami the e.wi 
 
^'2^7 SCHOOL LAW. 1238 
 
 fisccif that cliscretion cuiinot ;it pips.Mit l>ei|U(;s- hold (hiring their loiitimiaiKc in tiie said offices, 
 
 ''"'"'''• respeutively, fur the convenience and lienefit of 
 
 /'')• Ritcliie, ('. ,J.— TJiat tiie Town nf Dait- all the inhabitants of saiil Townshiii : and in 
 
 oiniith is not, hut that the City of Halifax is, trust that all schools in the Township furnished 
 
 exiiiipted l>y 4th Rev. Stats., c. :<•_', from contri- witii teachers (lualitied agrceaMy to law, ami con- 
 
 hiilioM to the County school rates. tracted with for a term not less than a year, 
 
 l,hi,.ii V. Wdfihii fiiiil CoiiiirU 0/ th Toiri, shouhl be entitled to an eiiual portion of the 
 
 (;/' Dfirhnoiitfi, US. C. R., .■>((!). rents and protits, provided surii masters should 
 
 receive, free of expense, such jioor cliihlren as 
 
 «. nartmoiltll liiablllity of, to the Muni- uiiuditliesenttotheni by thetru-stees. Down to 
 
 cii)ality of County of Halifax for .school rates I.ST.'J tiie rents and protits were divide.l among all 
 
 -Assessing present ratei)ayers for rate,s of the .schools of the Township coinplying witii the 
 
 previous years -//r/il, Ritchie, C. J., ili.^sHtt- terms .set out. After that date tlie funds were 
 
 /»;/. that the Town of Dartmouth is not liable to allowed to accumulate, until lH7!t, when the de- 
 
 cniitiiliute to the assessment for the support of fendants, being trustees, ptoposed to ai)proi)iiate 
 
 siiinnls in the .\Iunici])ality of the County of the proceeds to the erection of a schonl house in 
 
 Hiilit'ix. a particular sciiool section, on land wliicii did 
 
 //'/'/, a/vo, that if so lia))le, a wilt of /;(rf(/(/r(W((>' not belong to the To« iisiiip, liut of which the 
 
 cdiild not i.ssue to enforce tiie i)iyiiient of such trustees expected to get a deed. I'lio section in 
 
 (oiilribiition, as the amount of liie same would which it was proposed to erect tiie sciioolhouse 
 
 111' uncertain and dithcuit to be ascertained. was twenty miles distant from one end of tiie 
 
 //'/'/, al.to, that tiie latepayers of ISMi could Township, 
 
 imt lie a.-<sea.sed for school I ates leviable in previ- //-A/, tiiat the laiiils were held subject to a 
 
 ""■' .^■•■■^i'''- trust, for the beiietit of all the scliools comply- 
 
 /*'/■ Ritchie, C. .1., (//v,. ,,/,';„^, that only iiig willi tiie terms, and tliat the proceeds must 
 
 the City of Halifax is exemi)! from siicli contri- hi' divided among them all, and that the action 
 
 liiitinii. and tliat tiie Town of Dartmontli is "as liglitly brought in tiie name of tlie .Vttoruey- 
 
 '''''''^■- < o'lieralof the Province, and not of the Attoiney- 
 
 77c Irani, II ainl Coniirii of thi 'J'oirn 1,/ (Iciicial of Canada. 
 
 l)'trfmou/h v. T/k' (^hi-iii, on flu nhtl'iDii At''!J-<!i mral w Axfoiil it al.,\\..V.. \)., \-l\). 
 
 11/ > III Miiiii'ri/ifiliii/ o)' fill- Conii/i/ of' Jfii/i- 
 
 fn.,: (Xof n/..o'>..i l„/o,rj, U.s.'c. i;., On 'i/,,„nllo fh, Snrnni, Court of Xora Srofiii, 
 
 4."i. //'/'/, that the jjlaintirts Were not entitled to 
 
 tlie decree and di.-triliiition for wliicii the suit 
 
 IN'nTK —This case was three times befoie the was l.rou'.'lit 
 '""'"'■""■ ''"'"'^ of Cana.la. /., , .i,„„^,, j,^ ,/;,.,„/;„,,. tliat tlie bill slioul.l 
 
 hi. On appeal from the de,isi,.n of the Su- )„, sustained ami its praver granted for an 
 jimiie Court of Xov,-< Scotia reporU'd, I R. AC, accounting with an injunction. 
 4ii:> Ai.peal reported, !t S. C. R., M). | At'oniiy-O. «rm/ v. Axfhrd i-t a/., 
 
 -Mil. On appeal from decision reported, ;") R. 5 j.{ ^\^ ^■ |,,- 
 
 *: •■.. .'til. Not reported on ajjpeal, exccjit in 
 
 Ciis. Digest, "Jh"), when it was lii-lil, that the On apjiral fo flu Sii/iniiu Covii 0/ Cnnnila. 
 piviiniinary objection that a demurrei; would //-A/, reversing the judgment of the Supremo 
 nut he to the return to a nmmlamii^ must be Cuirt of Xova .Scotia, and icstoriiig tliat of tlie 
 wi'iruled.and it was decided that the case must Court of Hist instance, that the trustees had no 
 iHieard on the merits. discretion as to the application of the trust 
 
 'M. Two appeals, heard together, from de- funds, but were bound to distribute them among 
 oisions not rei)orted below. Appeals reported all the schools of the Township, which would be 
 
 •'^- C R., 4.).] entitled to particijiate under the terms of. the 
 
 trust, however wanting in utility such a disposi- 
 
 I. «irant to Toirnslilp of land for school tion of said funds might be. 
 
 -Charitable trust -Acceptance of, by trustees Ihhl, n/>o, that notwithstanding the ab.sence 
 
 -Discretion of trustees -Doctrine of cy pres of words of inheritance in the grant, it was 
 
 -liy letters patent in ITtil, the school lands in sufficient for the purpose of this suit that the 
 
 "if township of Cornwallis were grante.l to the defendants had acted as trustees, 
 
 •lien Hector and Wardens, and the Rector and Hdil, also, that the Attorney-CJeneral of the 
 
 ^alliens for the time being of St. John's Province was the proper party to liring this 
 
 'luiith, Cornwallis, in trust for the use of the suit. 
 
 ■"•linol „r .sell )ols in Cornwallis, to have and to Ppi- Strong, J. --Under the doctrine of cy pres, 
 
1239 
 
 SCHOOL LAW. 
 
 1240 
 
 .1 tcftTcnce Tni>,'ht lie made to the Master, to 
 report a scheme for tlie fulnre administration of 
 the cliiirity. 
 
 the third TriiHtec, removed the school innisc 
 from its tiieii site. No Hciio(d was miiiiitaincd 
 during the winter, though efforts were made Ky 
 
 Attorii<y<lniirul v. Axford, 13 S. V. R., 294. I the Trustees to maintain one. In June, 1874, 
 
 the Commissioners of .Schools for the diKlnCt, 
 
 8. School asseSHment — Construction 4th j i'l^-duding secti(m Hi, dismissed the three Tnis- 
 Rev. Stat., c. 32— M., Son & Co. carried on | tees and aj)jM)inted three others, assumiiij,' the 
 business in the City of Halifax, and also at ' power to do so under chap. .'«, 4th F^. S,, sec. •_'(». 
 Hedford, in tlie County of Halifax, owning and The newly apixiinted Trustees hrought an aciidii 
 occupying projierty liable to assessment for of trespass against the two Trustees, who h.id 
 school ])nrposes in both places. The meudiers removed the scliocd house, antl their servants, 
 of the firm resided in the City of Halifax. Tre- for such removal. 
 
 vious to the assessment of ISS'2 the firm made 
 an iissignment for the general benefit of their 
 creditors to |)laintiff wlu) was carrying on busi 
 
 JI'liI, that \inder the circumstances the Coin- 
 missioners had no right to dismiss the origimd 
 Trustees and appoint others, and that even if 
 
 ness at Bedford under the tirm name at the time [their appointees had been legally appoiniwl 
 of the assessment, but al.so resided in Halifax, j Trustees, no action woul.l lie at tlicir -iiiit 
 A portion of the property at Bedford assigned i against ilefendants for acts conniiitled <hii irif; 
 to plaintifT having been levied upon for rates 1 their term of office. 
 
 claimed to be due for the su]ii>ort of schools in 
 that section, 
 
 Hflil, Weatherbe, J., iliss<iiliv<i, that after 
 the assignment, un<ler Revised Statutes (4th 
 scries), chapter .TJ, sections .')4 and (i4, the pro- 
 perty levied upon was only liable to assessment 
 in the section in which the original owners last 
 
 resided. 
 
 Grnhnm v. Monniihuii, .'> K. k <!., lS(i. 
 
 9. School rates -Collection of-Excluston 
 
 of female ratepayers — Replevin will not lie 
 against a constable for pi'opeity seized by him 
 under a warrant of distress for the non-pay 
 
 Trii-vtii.i (if Si'honl Sfctioii lH v. C(iiii< foii, 
 
 •2R. »fe ('., 32s. 
 
 On fi/i/if(i/ to thi' Siiprinie Com-' of CniKidc, 
 
 J. C. and .1. A. C, while Trustees of Sclmul 
 
 I Section No. Hi, Stuith District of I'iclou Ccitiiiiy, 
 
 ' anil N. V. as theii' servant, entered upon tlio 
 
 sclio(d jdot belonging to their section, rciimviMl 
 
 ! the school liouse from its foundat.on, and 'le- 
 
 ; stroyed a jmrtion of the stone wall. S'l'ise- 
 
 (juently the Trustees of said s-chool .'tctioii 
 
 brought an action of trespass (/iinn f/inismii 
 
 frujit ami d< houix nx)iortali< against the saiil 
 
 .T. C, J. \. C, and N. C., for injury done to 
 
 ment of .schord rates, under Revise.l Statutes i the sclio.d lumsc, the property of the section. 
 (second series), c. (i(», sec. 1(», although such ; The .lefen.lants pleaded iiihr alia justilicatjun 
 warrant be defective in not reciting that the ' "f the acts comi)laincd of, asserting that liie 
 c.dlector liad made the oath re,|uired tf> be ma.le ! acts were legally i)erformed by them in tluMr 
 previous to the issue of such warrant, which •■ capacity of Tiuslees. Sub-sec. 4 of s. .SO, c. .'f.' 
 oath, however, had in fact been ma.le. "f 4th Rev. Stats., declares that the sites for 
 
 P,r Young, C. .T.— The ouly remedy in such j scluxd houses shall be defined by the Titistws, 
 a case is by .rrHontrl, or a])pea! to the Sessions, subject to the sanction of the three nearest C-nn- 
 A 8cho<d rate is not vitiate.! by the exclusion of 1 missioners residing out of the section. In this 
 female ratable inhabitants from voting against case the sanction of the three nearest Comniis- 
 the rate. sioners was not obtained. 
 
 McGrojor v. Paihrson, 1 Old., 211. //,/</, on appeal, that under 4th Rev. Smts., 
 
 c. :«, J. ('., .1. A. v., and N. C. were not 
 
 10. Trustee -Certiorari will not He to— authorized to remove the school house from its 
 It is a fatal objectitm to a writ of <•( rliorari that site in the manner mentioned. That defendants 
 it is not addressed to parties having judicial having subsecjuently abused their right to enter 
 functions to perform, and a claim to exercise upon the lands of the cor[)oration liy an uvcrt 
 the office of School Trustee cannot, therefore, act of spcdiation, the plaintiffs, who are a cm]'"' 
 be testeil by tlds writ. rate body and are identical with the corimratioii 
 
 Lire AsKHHxmtntof Caniiiron,'!^^.. &(!., 177. which existed at the time of the trespass, cm 
 
 maintain trespass against the defendants for the 
 
 11. Trustees OfSChOOlS-Dlsmlssal Of, and injury done to the corporate property. Ita 
 appointment by Commissionevs— Two of the when an action is brought in the name of a ^"f- 
 defendants and another were duly elected poration without due authority, it is not snth- 
 School Trustees in October, 1873. In Decern- cient for the defendants to plead that the plain 
 ber the defendants, without the concurrence of tiffs di<l not legally constitute the corporatioiw 
 
12+1 
 
 SEA. 
 
 1242 
 
 liiii ill Miurli ii cMst! ilcfuiidaiits oiiglit to ajjply to 
 till' MUiiiiniiry jiiri»iliutii)ii of tli<j Court to stay 
 piiMi'i'dings. 
 
 I'irtoH School Trustfi'H v. Cameron, 
 
 2S. C. R.,tt90. 
 
 I'i. Trustees of school, liability on 
 
 agreement- H. L., onu of tliret' SulioolTrustft's, 
 tiiiitiacteil with tlie othei' two, M. MoL. tiiul .J. 
 M., wiio iluMcril)U(l tllulll^4elvell as " 'I'runtee.i of 
 .Sulidiil Section No. .5'i, S. ,S. IJoulaidiiiiu," to 
 liiiilil a suliool liousu, and tlie agreeniunt con- 
 tuiiii'd tlie following clause: "The afore-tuid 
 .\I. McL and J. M., as TrusteeH for the school 
 .section, do hereby l»ind themselves to pay tlie 
 afdiesaid If. L. the snni of $1(5(1," itc, &c. The 
 agioeiuent wiw signed hy all three Trustees, not 
 .SL'iik'd, and the word " Trustees " was wi'itten 
 oppipsite tlie names. H. L. having hrought his 
 action against the other two Trustees person- 
 iillv, I 
 
 H>>ld, reversing tlie decision of the County 
 ( "iMt, that the defendants were not personally 
 liill.ie. 
 
 LiriiniMfoiK: V. Schoo/ Ti-nstits, lioiilanlarii:, 
 
 I K. &(;., ,-).'},-). i 
 13. Trustees, personal liability of- The 
 
 liijiird of Trustees of Lunenburg Academy, by 
 agriiiiiuiit among themselves, ordered through 
 pl.iiiitiff, a iiieniber of the Hoard, from a party 
 in Mosion, U. IS., furniture for the Academy. 
 The ]iur.-ioii from whom the furniture was pro- 
 cuiuil forwarded it to plaintiff and drew on him ' 
 for liie amount. Plaintiff advaiiceil S|<)0.4l' to; 
 niielthu draft, and delivered the furniture upon I 
 the ii:*8urance that the sum so advanced would | 
 he lepuid to him. The amount re(|uired to 
 lii|ui(lii.te the bill was assessed upon the section 
 iinil collected to the extent of SiI4(i.()(» by defeii- , 
 'lint, ii Trustee and Secretary of the Hoard, but 
 iil'liiifd by him to other uses. 
 
 //'/'/, that defendant was liable for the sum 
 "(•"•IW, "it being money assessed and collected 
 i"iil in his hands for the very ])iirpose of liijui- 
 il'itiiig tjiis demand." 
 
 •J'<o, that there being no plea in abatement, 
 the objection taken at the argument to the iion- 
 Ji'iiiili'V (if the co-trustees could not avail. 
 
 Wilkina, J., dUienJin;/. 
 
 Zirirbn- V. Zink, •> N. S. IX, '-"J I 
 
 otherwise, for the purpose of, I'tc, ami for any 
 other necessary purpo.se. Section .S7 retpiired the 
 Trustees, upon the rei|uisition of a majority of 
 the ratepayers, to convene a special meeting of 
 the ratejiajers for the purpose of voting money 
 oi- adding to any amount previously voted. At 
 the annual meeting of School Section 'J'.t the 
 iiKuiey required for schools was not voted, ami 
 the meeting instructed the Trustees tr) call 
 another meeting for the puri)o.se, which they 
 did, but acted under the impression that the 
 iiH.eting must be calleil under a leijuisition, us 
 provided by sec. T,. The matter was brought 
 up by rerHornri, and a rule )(/.m' taken to set 
 aside the assessment, the affidavits on both 
 sides being drawn on the assumption that the 
 meeting could only be called under section 37, 
 retjuiring a re(|uisition from a majority of rate- 
 payers. 
 
 Hi hi, that no such reijuisition was nece.s.sary, 
 that the Trustees could call the meeting of their 
 own motion, and that, whether the itMiuisition 
 was signed by a majority of ratepayers or not, 
 the action of the meeting was legal and valid. 
 Ill re Si'hool Sec/ ion, Xo. .."■>, ',\ H. & C, 'JOT. 
 
 I 
 
 SE.4. 
 
 1. Boundaries or water lot -The grantee 
 
 of a water lot iHUinded on the shore, is entitled 
 to take up to high-water mark ; and that line of 
 his grant changes with the gradual encroachment 
 or retirement of the sea. 
 
 ICmoii v. Mayhirry, I Thorn., (1st Kd.), 144; 
 
 {•-'nd Kd.), IH(). 
 
 2. Crown cannot grant navigable arm of 
 
 — The Crown cannot grant the waters of a navi- 
 galile arm of the sea, so as to give a right of 
 exclusive fishing therein. 
 
 Mi'isiier V. Faniiiiiij, ■_' Tliom., !»7. 
 
 3. Urant of sea shore by Provincial 
 
 Government— Title held not to pass— Plaintiff 
 received a grant from the Provincial (Joverii- 
 ment of the shore of a narrow cove or creek at 
 St. .Margaret's Hay. The cove or creek was one 
 I of a number of small inlets abounding on the 
 shore of the Hay, not having the name or char- 
 acter of a public harljor, but had been iiseil on 
 several occasions by small vessels for the pur- 
 »■ Trustees -Power of, to call special pose of loading lumber. 
 
 meeting-Section 34, sub-section 8 of the chap- ^,7,/_ „„ n.e authority of Holmnn v. (h-teu, (i 
 
 I" of Public Instruction, 4th R. S., cap. 32, s. C. H. 707, that no title passed under the 
 
 ■"■•■'viiled that it shouhl be the duty of the grant. 
 
 Inistees to call a special meeting of the sec- : Fader v. Smith, 6 R. kV,., 433; 
 
 "»", due notice being ^iven by the school or' 6 C. L. T., 536. 
 
1243 
 
 SESSIONS. 
 
 124+ 
 
 4. The oHiier of land on the sea shore <»r I NESSH>>S. 
 
 on a ii.iviuiihU' ii\«.'iis iniitk'il lo fife inyrusH 
 
 im.l fjiivMs tiuTftci mill tiifiviVcmi. 1. An Order of Sessions Tor removal (if a 
 
 //(/(/, thai lU) leiijitli lit' tiiiii' .lining wliiili dc- |iiiii|ifr ymiiteil ujm.m iiimillicRiit groumU, .ni- 
 
 liisiuiiiil acts of nlislniiii..ii wtiv laMiiiimMl ii.ii lio NustiiincMl liy allidiivils <if fiuls oinitt.il tc 
 
 would tli'liar him "f xUosv ligiitB. I't' vtritif.l lirfoif the ..nl.r i)ii»sf.l. 
 
 Colliii'< V. /.'ric-s -2 TIkhii., •-'Si. Ilnriifiliy il (il. v. Hiii'iliin- <' ill., .Jaiiits, ;;(Mi, 
 
 SEAL. 
 
 1. Ureal Seal of Provlnee - The old tireat 
 
 Seal of ilu' I'lovimc, that in use siiiLC ls;{7, 
 used on piitentH appointing Queen's (."ounsel and 
 rfgulaliiig pii'cedeiKO at the Har in 1>S7(J, ceased 
 to lie the Croat Seal of the I'lovinco on the 
 transmission of ii new <lreat Seal to the Lieu- 
 tenant-(;ovcinor in Dccemher, IS09, though not 
 adojtteil or judclaiined hy the Lieutenant- 
 (iovemor in Council. 
 
 In re Pn.cidi iifi of llih-hii, (J. C, 
 
 •2 H. .t v., 4.-)0. 
 Set BAKKISTER-AT-LAW, -i. 
 
 •2. School rates Collection of- ExrhiHJoii 
 
 of female ratepayer!* — Keiilevin will imi Uv 
 against a coiistalile for property seized iiy liini 
 under a warrant of distress for the imu. pay- 
 ment of school rates, under Revised Si.ilutts 
 (second series), c. W, sec. H», although mrIi 
 warrant be defective in not reciting tiiat the 
 collector had made the oath reipiired to !"■ iiia.le 
 previous to the issue of such warrant, whirli 
 oath, however, had in fact been made. 
 ' I'd- Young, ('. J.— The only remedy in su'li 
 a case is by r,r/iornri, or a])peal to the Sessjcuis, 
 A 8ch(H>l rate is not viliateil by the exclusjcm ,if 
 female ratable inhabitants from voting against 
 
 the rate. 
 i M<(lr<u<>i- V. rnttif^un, 1 ()ld.,'Jll. 
 
 2. Of corporation— 
 
 3. Want of, on writ- 
 
 sv CORPORATION. 
 
 See PRACTICE. 
 
 SEAMAN- 
 Su SHIPPING. 
 
 SECURITY FOR COSTS- 
 Set COSTS. 
 
 SEDiCTION- 
 See HUSBAND AND WIFE, 3&4. 
 
 SERVANT- 
 See MASTER AND SERVANT. 
 
 SERVICE- 
 Set CONSTRUCTIVE SERVICE -PRACTICE. 
 
 3. The Commissioners and Sessions can. 
 
 not lay out a road substantially diflerent ficiii 
 that petitioned for by the freeholders. 
 i (,>i«'« V. Chi/iinHH et a/., '2 Thorn., \W. 
 
 4. Three magistrates, forming a part uf 
 
 the Court of Se.ssions, by whom the return oi .t 
 
 precept, issued under cap. O'J, of the Rev. .'^tats,, 
 
 for laying out a road is to be decided, are ii"t 
 
 the three disinterested freeholders conteinpliittil 
 
 by that Act. 
 
 Quieu V. Chi/iman, '2 Thorn., •2'.i± 
 
 5. When the General Sessions conflrmcd 
 
 the proceedings to establish a pent way whiili 
 had been duly laid out, 
 
 Httd, that before such way could be used the 
 proprietor of the land through which it nuis 
 must be paid damages awarded to him hy 'I't 
 jury who have assessed the same. 
 
 Cameron v. McLean, 2 Thorn., S'-'ft. 
 
 6. Where the grounds of an appeal from 
 
 an assessment are simply matters of detail, the 
 
 appeal should be primarily to the Court uf 
 j Sessions and not to the .Supreme Court. The 
 i Court of Sessions has power to set aside a whole 
 
 assessment where it manifestly appears tlwt 
 ', it has been irregularly and therefore illegally 
 
 made. 
 
 In re Aii)<e.i>imenl School Hate, Sec. 4~, Anti!ioni'<h, 
 I 3 N. S. l>.. '--• 
 
124.- 
 
 8EWER.S. 
 
 1246 
 
 set-off. 
 
 \. Acll(>n fiir half liitercMt In horse 
 
 Ri^jht to oH'Het exjjenat'H paid on account of 
 
 hor«e- 'I'll a clecliinitioii liy |iluintiti' tnr the 
 piiic ot' niit' liiilf intt-ri-Ht ill H liiii'Hi' iillcgi'd to 
 liaM.' lift'ii Null I l,y pliiiiilitT to ilctViiilant, plaint ill' 
 iitiiiiiiiijj! the ntiicr half inlciust, iliffinlaiit 
 liltiiilcil iiliiDiig (itlier plcaM a mcI-dH' for the ki'cp 
 ,iMil 1 iiie iif tlie hnisc anil t'X|)fiist'.s cipniiccti'il 
 wilh taking Ihi' lioi'sc to ami from 'riiiio while 
 the joint iiwiu'ixhip lastcil. 'I'lic Juilgc of the 
 Ciiunty Court nileil that ikfenilant coiihl not otf- 
 si'l liin account, as that would lie uH'seltiiiij! a 
 |iiiiini rship matter ilepemling upon an adjiist- 
 n.enl of aceuunts lietween the parties, plaintill'.s 
 iliiiiii licing for prii]ieity liruiiglit into the part- 
 iitiship. 
 
 H'/il, that the rejection of the setoll' was 
 wriiiij.', and that llie judgment lielow luusl lie 
 iiversed. 
 
 MrDoimhl V. l'oin,\ .S K. vt ('., ;{4(<. 
 
 i. Ilefendant cannot oust Jurisdiction 
 
 to try a claim involving no question of title 
 by pleading set-off involving such question 
 -Appeal to Supreme Court in such case— 
 
 WJRie a ("iiurt has no jurisdiction to try a ([ues- 
 lidii of title, ilefendant cannot oust the jurisdie- 
 linn to entertain a claim involving lui ijuestimi 
 (if title liy pleading a set-off that involves .i 
 i|iiestion of title. 
 
 An action was brought in the Magistrates' 
 Cuuri and judgment given for plaintiff. Tlu: 
 L'dunty Court Judge, on appeal, decided thai the 
 iiufstion of title was involved, and the Court 
 w;is therefore "excluded from jurisdiction." i 
 
 Hi III, that an appeal lay to tlie .Supreme Court 
 from the decision. 
 
 Cri-iijhtoH V. LiiKUny, 3 K. & (i., 24;i 
 
 3. Judgment recovered by third parly 
 
 after commencement of action and assigned to 
 
 defendant — To an action on a promissory note 
 iltfemlant pleaded, by way of set-off, a judg- 
 ment for a greater amount recovered against 
 pliiintiff by a third party and assigned to de- 
 icniliuil after the commencement of phiintiff's 
 action. 
 
 Hild, that the plea was bad. Kven if plead- 
 :Ale the plea could only be to the further main- 
 teiiiURc of the action, and not in bar to the 
 whole action. 
 
 .\siiuniiiig the assignment to have been made 
 m good faith, ilefendant might possibly have got 
 ilie benefit of it on application to the Court in 
 ilie exercise of its eijuitable jurisdiction. 
 
 McDonald v. Ntville, 4 R. & G., 191. 
 
 4. .Money due by a member of an aHso* 
 
 ciation cannot be set off against money due to 
 the Association — I'hiintitl's, an incorporati.d 
 .Marine Insurance Associalion, paid a sum of 
 money into the defendant Itank to indemnify 
 the latter for guaranteeing payment of costs of 
 an appeal |)eiiding in the Kiiglish Admiralty 
 Court. The appeal iiaviug been decided in the 
 plaintiff's favor, the defendant liaiik repaid all 
 but one-fortieth of the amount ilepo.sited with 
 them, and claimed the right to set off against 
 the amount retained as being the share of one of 
 the nieniliers of the .Association, u delit due tlie 
 bank by such member. The bank having pre- 
 viously acted throughout the transaction in sueli 
 a way as to show that their intention was to deal 
 with the members of the Association collectively, 
 and the money having been paid in to the credit 
 of the Association, 
 
 III III, that the plaintiffs wen; entitled to re- 
 cover. 
 
 StiJoii 1 1 III. V. Tin Ml nliants liniih, 
 
 •i H. & <;., 113. 
 
 5. riea of- Defendant pleaded a set-off 
 
 to jilaintiff's chiim fur goods soM and delivered, 
 and under that plea gave evidence of a sale of 
 goods to plaintiff by the defendant and his co- 
 I)artiier, and an agreement made between plain- 
 tiff, ilefendant and defendant's co-partner, that 
 jdaintiff's claim should be paid in goods fioni 
 the partnership store. The County Comi .Judgo 
 gave judgment for defendant on this evidence, 
 and the appeal from his judgment was dismissed 
 with costs. 
 
 Ci-omhir V. dniin, '2 R. & (J., 370. 
 
 6. Replication — Where no replication 
 
 had been put in to a plea of set-off, and one Inul 
 been tendered at the trial. 
 
 Hi III, that the .1 udge ought to have received it. 
 
 V"«"v, if a replication is necessary to such a 
 plea. 
 
 Toliin V. Dmn, '2 Thom., 4(>2. 
 
 SETTLEMEXT- 
 Stt BAST.iKD-POOK I.IW. 
 
 SEWERS. 
 I. Commissioners of Sewers— Appoint^ 
 
 ment of — Plaintiff and defendants were, by 
 commission from the Lieutenant-Governor, ap- 
 pointed Commissioners of Sewers for the Town- 
 ship of Falmouth. Plaintiff had been selected 
 
1247 
 
 SEWKRS. 
 
 124H 
 
 l,y iMopri.'t-.rH, n-prfHci.tiiigtwotl.ir.lM in ii.t.T- l.ut from nTuiving wattT from llu- City'^ « itiT 
 est, Commi.-iHi.ii.cr of the vilUgf dyki-. ! work« until a Huitiil.i« .Iniin w.w .jon..triKir,|. 
 
 H.lil, thiit pluintitl' aloni' fould maintain an tin- i-vi.li'nco Hliowing tliat the introiliictlon „f 
 
 at'lion against .ll■f.■n.lant^ altiiougii at tlir tiinu .sii.li Niipply, in tho a).«fnc.' of a «uitalp|.> .Iriiii, 
 
 of liiA Hfloction, an.l when the work wan ilone. occasioned an overHow on piaintiH« prtMiiiH... 
 .l.'fendantH were name.l with liini in the execu- .'/"" v. lUmiM, H. K. D., I.TV 
 
 tive connnis.Hion. 
 
 Conxtruction of Urd II. S,, c. 7'i, 
 
 KiKht to maintain dralnii leadlnv n-oni 
 
 l)ar„hou V. La,n:uc. '.'f al.'\ N. S, I)., :«. Private property to drainH on tlie public high- 
 way-Liability of Municipality for negligeniie 
 . „ _ of surveyor of highwaya -Obligation of Muni- 
 
 a. I'ommlssloners of Sewers -Presuinp. ^.^^j.^^ ^^ ^^^^^^^^ private rights-Remedy 
 
 tion as to appointment 3rd R^S.. e. 7^8. ^^- ^^^j^tory injunction - I'laintitV was tia. 
 
 Eflect of not being sworn into oftce-la.nt.ffs , „ .^^,„, ,„. ,,^,„, ^,,,i^,, f,„, „ ,,„,.iod of thirty 
 
 a«Con.missioner.s..f Sewers for the district of I ^^^^^ ,^^^^^ j^,^^.^^^^j .^^^^^ an open drain 
 
 K & M., bronghl acti.m against the defendant ^^^^,^„^j ^^^ _^^^^j ^..^,^.^^ ^,^^ ,.,,,.^^ ,,f ^,^^ j,,,,,,,^. 
 
 for certain .lyke rates assessed on the owners of , ^.^ ,^,„i ^,,^.„^,^. , ^ ,„,.,,.„, ,i,„i„ „,,„,, 
 
 nuush lands in thai district, for constrnctmg ^,_^^ |^.^^^^^,_^^. ^^^ ^^ ^.^,^^, ,,,,^^ .lefendanfs sur- 
 
 and repairing necessary dykes, etc. Defen.lant ^^^^^^^^^ ^,^^_ ^^^^^.^^ ,^^, ^„„,.^,,,i„j, |, 
 
 i>l<.HiU'i1 tliiLt itlaintitfs were not ( oinmissioners ; . •' , i . i- i i .1 
 
 plcadui in.u piaimui.i «d I i into a covered dram, which was no larger tiiiiii 
 
 of Sewers for that district. 1 he Act regulating 
 
 one of plaintiff's drains running into it. As tiiu 
 result of the change two of plaintiff's drain* 
 were entirely stopped up and the drainage nf 
 his house and land seriously impaired. 
 
 //(A/, that a sullicient prescription was provcil 
 to entitle plaintiff to the use of the open dniiii, 
 either as against the Crown or a private pcrsmi, 
 for the purpose claimed, consistently with tiii' 
 
 the appointment of such Commissioners pro- 
 vided that on being appointed tliey should be 
 sworn into office by a .lustice of the I'eace, and 
 that such swearing should be entered in the 
 Connnissioners' book of record. It ai)i)eared 
 that only one of the plaintiff's had fidtilled this 
 reiiuirenient, but all three had acted as Commis- 
 sioners for several years. ' .^^^^ J^ ^jj^ ,^.^ ^^ ^,^^. „,„,y^tricted u.sc of 
 
 Hehl, that in thus directing as to the entry of | ^_^^^__^^^^^ ^^^ ^^^^, c.rrespon.ling right U, 
 
 the swearing it was not intended by the Leg.s- ^^^^^^ ^^^^ efficiently upheld, 
 
 haure to shut out all other proof of ,,ual,t,cat.on. ! ^^^^^^ ^^^^^^ .^ ^^,_^^ inound.ent upon defendutu. 
 an.l that there was sufficient evidence aside from ] ^^^ ^,_^^^^. ^,^^^^ ^,^^_ ^_^^j ^^^.^^^^ ,,^. ^,,^„, ^.„,,j,, ,,,„ 
 this to atTord the presumption that the plaint.rts j j^^^^,^ ,^^^^^ efficiently secured without trenciiiiig 
 were legally appointed and duly authorized to I ^^^^^^_^ plaintiff's rights. 
 
 act in this assessment , ^, , ,. „ ,! .lAo, that under a prayer for the decree t. 
 
 nakvr,lal.y.Mctarlan,,'2^.^.h.,\>i. ,,^,^^^^^^^^ ^^,,,, reconstruct the said drain 0, 
 
 ; gutter, and said drain under the highway iif'nu- 
 
 3. NegllKCnCC In regard to drain — I jj.ij.i^ s„ tlmt it „.ill drain the lands of the philn- 
 Where plaintiff's horse was injured by falling ' ^jj^- jj, .^^ fj,ii ,^,„i ,i,„j,iu ^ manner as it did lie- 
 into a deep uncovered drain by the side of a f„i.e the grievance complained of," plaintill' was 
 road in the suburbs of the City, I entitled to a mandatory injunction to rcstoiv 
 
 Hc/(/, that the drain being proved to be well j,i,j, ,.„ ^^^^ condition in which he was lieforc tla- 
 constructed, and of a kind (uncovered) usual in | g,.ievances complained of took place, 
 the suburbs, the City was not lialde. McDonald, C. .)., <littiiiiin<j. 
 
 Mai-kinlay v. Thf City of Ilalijax, 
 
 •2 R. & C, 30,-) 
 
 JeiDiisoii V. Mniiirijialih/ 0/ Eaxt U(uiti, 
 
 6 R. i^C'., 71; 
 
 4, Restraining from permitting waste I 
 
 water to flow on plaintiff's property, &c.— 
 Where the ('.efendant had iio drain leading from 
 his premises to the common sewer on the street, 
 and the plaintiff prevented all access to a drain 
 on his own property through which the water 
 might flow to the sewer from defendant's prop- 
 erty, but defendant proved no title or right to 
 use such drain, the Court granted an injunction 
 to restrain defendant not only from permitting 
 his waste water to flow on plaintiff's property. 
 
 H C. L. T., Ul. 
 
 6. The Provincial Act of 1873, c. 14, s. 1, 
 
 empowered the Board of Commissioners of City 
 Works, under the sancti.m of the City Coiuicil, 
 to oriler the construction of a sewer alniig any 
 street, without the re(iuisition of owner.-' of pro- 
 ])erty along the street, and the Acts of 1^74, i'- 
 ,3-2, s. 1, provided that upon the petition of iialt 
 the owners of property on any street, ami tiie 
 deposit with the City Treasurer of certam 
 amounts chargeable under the Act, the Cit) 
 
1241) 
 
 SHKKIFF. 
 
 12o0 
 
 I oiiiK'il hIiiiuM iikU'I- II Mwcr til III' inn-.|iui tnl wuH ui'ifpt.'il, mill llic I'.i.unl i<( Work.* iiiitlKH • 
 
 iiiili'Kh fiir nutliciuiil iijiisciiiN to tlif oiiiitraiy. i/fit to ciiy it into iH'iti, Inn tluj toinlfi uikI 
 
 Hie Aft iif 1.S74 filltliiT ii'|ii.'iili'il a .■.t'l.tiiiii (if coiitiiicl liiiri' d.iic it'.M|KMti\cly .Imii' l,")tli. ami 
 
 tlifAot<if IH7:» mill Hiilistitutcil thciffor ii .•..■.■■ .Inly •.'n,l, |h74. 'I'Ik. .Hiiit \vii.s iiistitiilnl iiihIit 
 
 ti |iniiitiiii{ out tlif iiiuniirr in MJiich tin' in»t llic Act nt' |.s7;i. 
 
 „f cnii^lniftion Nhnnlil Kc Imhui', ami |)n>viiling //.///, alliiniing the ileoisjiui nf tlif ('lunity 
 
 ihiit all MKini'yn eJiiiiufaMi! to propuity ownuiM Comt, that tlierc wure no ac(|iiiicil rijjtlits mi 
 
 lauliT that Act nIii.iiIiI licconic iliif from the the part of tin- City a^ain.-it the ilcfcmlanl iimlei' 
 
 .iiiliT III' rc'soliiliiiii to coiihtiiu't a ni'W ni'Wlt, llio Ai't of I,s7;j, unil that liic A.l of l,H7;t hav- 
 
 ulu'tlirr such ML'WiT had lii-un putilionuil for or iiij; liccn rcpcaU'd, the pliiiitill' iniiM Kc noii- 
 
 ii'li'i'i'il liy the Coiiiicil for thu ht-nufit of tlii' xiiiti'd. 
 
 ( ity without pt'titioii. The owners of property T)i< Clfi/ <,/ llalijux v. Kiln;,, ■•I,-,, H It. \ C. |()4. 
 
 ..Ii Sdiilh Park Stii't'l applied liy petition for a 
 
 wHir fiiiiii X'icidiia Itoad alon^' South I'lirk 
 
 .vrcel to hiKlis Street, 4S(I lineal feet. The 
 
 I ilv I'llinineer reported upon the |)etitioli fliat, , 
 
 iliiiiili'r to provide a proper outlet for the pr 
 iHiii"! sewer, it would lie neeessary to Imild M,")(» 
 liiii'iil feet down Iii^jlis Street ; up<iii which the 
 C'lmicil passed a resolution, "that tiie petition 
 ■ if llie ratepayers in South I'ark Street and 
 lii.;li» Street for the construction of a sewer on 
 
 '''' 
 
 Kiijliieer thereon, lie received and adopted, and 
 tliiil llie Itiiard of Works he reiiuested to have 
 'iidi sower constructed." The sewer was con 
 •mictwl, and a suit hrought aj,'ainst defendant, 
 nh'i lived on Inglis Stieet, for his portion of tin 
 •tsiif eoiisiructioii on Inglis Street 
 ll'lil, that the Council had power to order the 
 "iHtiiict.lon of a sewer on Inglis Street without 
 iiiy |iititioii, to the cost of which property 
 ■«i;miiii Inglis street were hound tocontrilnite, 
 iii'hluit the resolution might he legarded, Krst, 
 IS iuitlinrizing the construction of a sewer on 
 >'''ath i'luk Street, in comiilian 'O v/ith the peti 
 
 SIIKKIFF. 
 
 1. Action ngnlnst PlnlntllTliavIn;,' recov- 
 ered judgment against his delitur placed an exe- 
 cution in the Slieiit!"s hands, with instructions 
 
 :<l s>r..l., together with the report of the '"'l'"'^^"! "• l^'^T' '■' H'f g-ods of the del.f.r, and 
 
 1 1 . . , , , . . fi'r want thereof to take his liody. The Siierit!" 
 
 returned " no goods," hut did not take the liody. 
 Tlie residence of the judgiiR'nt dehtor was with- 
 in the liailiwick, and there was nothing to show 
 whether he was or was not actually in the liaili- 
 wick while the execution was in the SheritT's 
 hands. 
 
 //'/'/, that the iilalntiH"s verdict in an action 
 against the Slieritl, taken hy consent for nomi- 
 nal damages, must stand. 
 Wilkins, .T., ili.i.iiiitiiii/. 
 
 'Hiorjn V. MrL<nn, L> R. & C, 'JtMi. 
 
 2. Action asalnst- Execution of writ of 
 
 ti'niif the projierty owners on that street, luid 
 
 wmilly, as iiu order emanating from the I attachment — Abandonment of seizure — 
 ' midl itself for the construction of a sewer on : Estoppel — A writ of attachment against the 
 l:.lisStrL.t.t, irrespective of any petition. ; goods of M. in the possession of S. was phiced 
 
 ''i' Ciiii of Haiij'ax v. .SV(.-/o«, 3 H, & C, L'4,'). | '•> t''e Sherift"'s hands and goods seized under it. 
 
 j After the seizure the goods, with the consent of 
 . ' the plaintifl's solicitor, were left by the Sheiitt' 
 
 '■Tie Sewerage Act of 1813, cap. 14, in charge of S., who undertook that the same 
 I I '"led that where two-thirds of the rate- should be held intact. The Sheriff made a 
 l")«sin any street, &c., should petition for a , return to the writ that he had seized the goods. 
 rf»':r the same should be constructed, ami that i The Sheriff subseiiuently sold the goods under 
 l:|f'iurth i.f the cost should be paid by a spe- ' execution, but paid the proceeds over to other 
 '■■.'las.<essnient on the owners of real estate, &c., ' creditors. In an action against the Sheriff, 
 h-hwssnient to be immediately jiayable on the | Held, reversing the judgment of the Supreme 
 |-'9|tomn„fthesewer. The Act of 1874, pas.sed ^ Court of Xova Scotia, that the act of leaving 
 |-\Wti,repealedthe.seprovisions, and provided, the goods in the possession of S. was not an 
 r| where (niehalf the owners of property on abandonment by the plaintiff's solicitor of the 
 L *^'"'^\ *''•• petitioned and deposited the seizure, ami if it was, the Sheriff was estopped 
 I TOs chargeable according to the Act, the by his return to the writ from raising the (lues- 
 Ip *" "'"'"■'1 -^x'tler a drain to be constructed. \ tion. 
 
 I '^ iminaiy .steps having been taken for the con- , Held, aha, that the fact of the plaintiff's 
 |:Ad'T'>> '^ ^*^^*-'''' ^'^^^ I'efeiulant's property, ; solicitor acting as attorney for S. in a suit con- 
 I-pri '-nd, 1874, the report of the engineer I nected with the same goods was not evidence of 
 ■ 40 
 
12:)1 
 
 SHERIFF. 
 
 \'2:>i 
 
 an inti'titiiiii m iliHi'iintiiiiii) pripot'i'ilini^n uniler 
 
 till' llltllrlillicllt. 
 
 OiijI'iiM V. Cniijli/oii, not II I'lu-liil lii/iiir, 
 
 14 S. V. K.. 74(1; 
 7('. L. T., MNlt. 
 
 .1. Action b), «m bttnil IMiiinllfr, nn 
 
 Sliciitr >if till' Coiiiity iif AiniiiiH'liM, hiumI ihu 
 (lircii;ljiii»H Kii II jiiiiil luiil MuviTiil liiiiid of in- 
 (U'ni'iity givfn l<y tlicni to indiimiify liini 
 iigiiinKt all loHXfK, fic, ini.'niTi'il in iL'spcil of tin.' 
 Miilc of cfitiiin jiropc'ity tiikoii liy liiui nndei' ii 
 writ of I'M'i utiiiii, isMiiid on ii jmlnni a rci'ov- 
 I'liil liy ilctVuiliuitH iigiiiiist W. I'. S., till' iirop- 
 tity liiiving lii'un cliiinici liy l>. !'•. iiinltr a Kill 
 
 of Mill'. 
 
 'I'lii' jiro[)fily having lii'fn solil liy iiliiiiitill 
 iiniler tlio fxt'cntion, bi- wii« mu'il ly D. I!., iuul 
 jiiilgincnt I'L'coVfi'fd iigiiinut liiin. 
 
 Till- lionil of indi'innily iviitcd ;i "liill of 
 wide, diitud the day of AngU!<t, 1>SS:{," 
 
 wliik', liy nil anuiidnit'Ut aftur the idinint'noo- 
 tncnt of the suit, jiidgtiu'iit was recovered <>n a 
 "hill of wale dated the ha August, IS.Sl, or, in 
 the iiltenmtive, tindir iin assignment dated on 
 the I'Jtli .January, IMM." 
 
 The eondition of the liond of indemnity hound 
 the deteiidants " from time to lime, and at all 
 times hereafter, well and sutlieiently, to save 
 harndess and keep indemnified the said .Sheritl' 
 * * * from and against all losses, costs, charges, 
 damages and expenses • • • hy reason of ; 
 selling the said property so seized ♦ * • and 
 also from and against all actions * * * or any 
 procedure at law or ii' e-juity, which now, <ir 
 shall or may at any time lie lirought, connnenced 
 or prosecuted rij.ditfnlly or wrongfully against 
 the said Sheriff * * for or liy reason or 
 
 means of the selling of the said property." 
 
 //i/il, that the words of the ciiiulition were 
 surticient to protect the plainlitl', and were not 
 controlled by the words in the recital, in such a 
 way as to limit the liability of the defendants to 
 a claim under the particular bill of sale therein 
 mentioned. 
 
 Ali'O, that the recovery of the judgment in 
 respect to the matter against which plaintitf had 
 been indemnified, gave him a right of action, 
 and that he was not obliged to wait until pay- 
 ment of the amount of the judgment had been 
 enforced before commencing his suit. 
 
 Jjoiiuv't V. Kitchk tt al., 
 20 N. 8. R.,(SR. &U.), 228; 
 8 C. L. T., 376. 
 
 4. Action on bond conditioned to render 
 
 defendant to Sheriff— Execution placed in 
 hands of Sheriff of Annapolis where was venue 
 
 of action— Held properly ito— Anieiulment- 
 IndorMement of execution- The on^,'iiiiil plain. 
 
 till', who dli'il alter the eonmieneeMli'li' iif tlic 
 
 suit, the action being lontiinied by IiIh luhniniii- 
 trators, iHsued at .VnnapoliH a writ of r,i|iiiiii 
 against one Cutler, returnable at .\iiiiii|iii|j«, 
 direitecl to the Sheiill' of (,tueens or iiiiy utlin 
 .Sherill', under wiiieh Cutler wan arresteii hy ihr 
 .SheriU'of Halifax County, in his bailiw iilt, nnil 
 held to bail, ilefendant becouiing Hiiicty, ainl 
 the eondition '>f the bond being that Cutler 
 nhoidd be relideicd into the custody nf the 
 Sheritl" of Halifax. The deelaiation in tluhiiii 
 agaiiiHt Cutler was on a bill of exilmiige liruwii 
 by Cutler and others and dishonored, with pur- 
 ticidiirs ap|ilieable to such a count, tugctiitr 
 with common counts laying the indeliteihiiNHiii 
 Cutler and said others, but after issiu' jniiu.l 
 eonnnon counts were added, laying the iiiili'lii- 
 edness in (.'utler only, and particulars iicciii'<l> 
 ingly. .ludgmenl was recove/ed agiiiiist Ciilin, 
 and an execution issued diieeted to the SIicmiI 
 of Annapolis, in the usual form, but witliniiimiy 
 iiulorsement especially direciing the Shiiirt' i" 
 take the body. No executi.in was plineil in the 
 hands of the Sheritl' of Halifax, ami lliu Mifiirf 
 of Ainia])olis, after holding the exccutiiMi si.\ty 
 days, returned iioii is/ liiniihiM. 
 
 //'Ill, that the execution had been ]iiii|jiiK 
 placed in the hands of the .SheriU'of .Viiiiiiii-li* 
 C()unty, in which the venue in the original iictiiii 
 was laid, and not in Halifax, where the iini>! 
 was made ; and that the objection as tn tlie 
 amendment of the writ could not ]ireviiil, u 
 there was nothing before the L'ourt to sIiom tk 
 nature of the debt sworn to in the iillidavit uii 
 which the capias issued, or that the plaiiililf li.il 
 not recovered on the declaration as originally 
 framed, but that in order to enable pliiiiitili' vi 
 
 ' bring action against the defendant as liiiil, iiwrn 
 should have been placed in the Sheritl's Iwiil'. 
 
 'with instructions indorsed to take tiie liuily 1 
 
 the principal. 
 
 (lavaza v. «/«-•/•, Ii R. & C, & 
 
 1 
 
 ; 5. Appointment of special doput) Toe 
 
 appointment of a special deputy or iiaiiitl' I'y i 
 
 party to a suit discharges the Sheriff fimii 'H I 
 
 responsibility. 
 
 [ Cochran v. Bd/, 3 N. .S. D., <!"•• I 
 
 I 
 I 
 
 ^ 6. Attaclinient against-No attachnidii 
 
 can be issued against a Sheriff in tiiis Prfivia* j 
 j for not bringing in the body of a party whom | 
 I ho has enlarged on bail. 
 : This was a motion to make absolute a '«'j 
 j against the Sheriff to bring in the bo'ly »i »| 
 i party against whom a capias had issued, 
 
•iy.\ 
 
 SHERIFF. 
 
 1254 
 
 «liH li.ul lii'fii fiilaixi . Iiy till' Shciiti on Kiiil. iittinliiiiciit, j^'cmmU in th,. |)i,>Hc»Hi.iii rif tlic plaiii- 
 
 l^aliilit'iHirty uIikIiikI ln'ciiiuitMinl iini|lii«l)iii' titt, t" wIhuii iluy liml li.m tiiin»l'firfil liy tho 
 
 li,i>l iilihidiiih'il, ulU't{cil jilmLoiiiliiig ililitcir, iiuil tlie IniiiMti r uim, 
 
 If'I'l, tlmt tliuniloudulilnnt lie niiulcaliNnluti'. in ii Kiiit liy the pliiintiU iiniiinHi tlio SlicrilV tor 
 
 >Vm'-/., ai'tion nonld lio uKanist llic Sli.TJtr fur tlif iillr^cd fiinvfriHiim, iittiu'kt'il hh fniuihilcnt, 
 
 tiikiiiL' iMMUIIicicMi liail. //,/./, ilmt tlif jii.siiticatinn of till' Nfi/.nio 
 
 .A,./,.,,/, V. C'liiii,!,,//, I 'I'liorn., C.'n.l Kil.), l!S. line ler t lie wilt wiih nut ii.niiili'tu uitliimt pntof 
 
 •pf iin inik'l)t(Mlni'HH fnmi tin- iilli'tjt'il iilwccmilinj^ 
 
 I. romp(>lllllK ShtTlfftO p«}' over nionoy ''*■'•''"' »" <'"' I'^nty mt.i.liinK, ami llml the pio- 
 
 -Till' ( 'mill will lint giiuit a nilu »m/ to loinpi'l 'l"'''i"i> "f thf iith<Iavii mi wliich tho iittnohint'iit 
 
 ,1 Shciitf to pay oviT ni(piiif« lolU'ittil inuh'i' i'*""^'' ^vuh not mitlicii'iil for that purj)osi). 
 
 ixiTiitioii whuic thiM)^ aro contlicting tlaiins to 
 the fiiiiils, hut \y\\\ k'HVi! the puitit-s to their 
 renu'ily liy action. 
 
 ,. Si'iiit V. Aiii/in, .laiiu'H, l,s,'{. 
 
 H. Escape MciiNureordainugONliiuctioii 
 
 foi' CHoape— In an aHUfssnu'iit of (hiiiia^i'« after 
 ilet'aiilt in an action aj,'ain.st a Shciill' for an 
 iwipc. the coroner ilirected the jury that if the 
 (k'ltiii had heeii allowed to escape thi'oiigh any 
 
 12. .riiMtinratlon under writ of execution 
 
 -An execution under which a .^licrilt juwtilies 
 liiu>t lie proved hy hilii. 
 
 MrUiiifiiij V, (lihlifiiii, JaniuN, l.VJ. 
 
 tn. Money collected by, and not paid over 
 
 —Negligence of judgment creditojH —Debtor 
 
 m;,'ligiiice in taking the jiniiicr precautioiiH on relcined— Action on a proiniM.sory note. Dcfcnco 
 lii«|iiirl to prevent such escape, they were hound no coiiHideratimi. \V. & McC. ohtained a judg- 
 til tiiiil the full aiiimml "or at leaHt heavier melit against S., and under an execution in^tued 
 iliiiuiges. " on this jiidgnient and a prior execution tho 
 
 H'ld, tliat tint was a misdirection, tho pro- /'^herifT, in Feliruary, IS.MI, levied on the goods 
 [nT measure of damages licing the pecuniary "f ■'*"• ""d sold them at a great sacrifice. After 
 v.iliieiif the custody at the moineiit of escaiie. .satisfying the prior execution there remained in 
 Mr/'w V. Uiiii/o/i, :i K. it (i., .Sl,'>. the . Sheriff's hands a halance of i'()(», which ho 
 
 did not pay over to \V. & McL'., and it appeared 
 
 it. tioods could no'„ be replevied from ''"^'^ *'"^y "''^■*"' '•""'* '"'y "^"1'" ^" '^'""i"'"' ''"" ^^ 
 
 Sheritr under 4-i,h R. S.— .Sec .*«() of cap. !)4, K. | ''" ""• '"^^ "" ^'t'^'*^''"'! occasions attempted to get 
 \ (4tii .series), prevents the replevying of goods, '"' ''''''"""t f''<"'> tlie .Sheritf, hut failed. S. sub^o- 
 M.iztil hy and in the custody of the SheriH' i,,,. , 'l>'«"tly ">'V'1« several payments on account of the 
 lev imiccss out of the Courts therein referred i"'l«"'Wit <Je'>t- I" Septemher, 1864, S. was ar- 
 iMlKiugii such goods are those of a third party, ' '■'-''''''''' '''^ *'"■' •"st'i»<-'e "f W. & McC, and, to 
 ijtmiiger to the cause in which the process i "'^'"''^*''""'8 '"J'"^' I""'' ■^'"f>'n'-"i«''.'"»l«'*vo two 
 I'suid ; and where other defendants, acting in ""*'^^' ""** "^ ^^''''^'> ^*'''* ''"* ""^'^ *'"'^'' "I'""- '^^^ 
 the Siierill's aid and under his autlunity, are • '''^f'^'X-'e '^''t up was, that the notes were witlumt 
 jwneil, the writ will be set aside as to all the | *^""''''''-"'''**"'"' ''" "^ '*""' ^"•^'''^ credited with the 
 'Irf.'ntkntd. j balance in tho Sheriff's hands, the judgment 
 
 C<trty V. Bourn tf a ul., 8 R. & C, 293. ' '''*'•* w'^»^<^^ be more than paid, 
 
 ' Held, that as through the negligence of tlie 
 judgment creditors the remedy against the 
 Sheriff had been lost, they, and not the debtor, 
 must suffer the loss, and that therefore the note 
 was without consideration. 
 
 Coleman v. Dnnlap >:/ al., 1 N. S. D., '216. 
 
 10. Justification under execution— On 
 
 lipial from a judgment in favor of plaintiffs, in an 
 iili'iii iigiiinst the Sheriff to recover goods taken 
 •'V iiiin under execution, it appeared that the de- 
 iendant at the trial had omitted to piove that 
 te rtprfsciited execution creditors. 
 //'W, that he could not succeed in his appeal. 
 Johmmit al. v. Archibald, 20 N. S. R., 
 
 14. Money received -Action for, against 
 
 Sheriff— Plaintiffs having recovered a judgment 
 
 (8 R. A ft.), 321 ; and issued an e:-;ecntion against the judgment 
 
 9 C. L. T. , 56. debtors were about bringing action against tho 
 
 , defendant, the Sheriff, for negligence in the 
 
 •1. Jastlflcatlon under writ of attach- execution of the writ, whereupon defendant, by 
 
 Mnt-Must prove indebtedness— Affidavit | his attorneys, wrote plaintiffs, asking permission 
 
 'M attachment not sufficient proof— Where i to be allowed io issue an execution against the 
 
 "i« uefemlaut, as Sheriff, seized, under a writ of i debtors in order that the Sheriff " might be able 
 
125i 
 
 SHERIFF. 
 
 1250 
 
 t<> find miftiuiuui piopLTty lo f^uvu himself fioin , U, RHurii -Amending -Actuiil sclzurp 
 
 l(,s,H." of lnojKTty l)uli)iigin<,' to tin; deffiiiliuil. uiidn- 
 
 I'laintiffs gave tlie pLTiiiisMioii to (kfuiiiliHit to I tlieiittiiclmiunl or tlic siiiiinioiiiiig of nn iiuuiit 
 issue t!i'j execution "on liis own rewpoiisilnlity j who lias goods, &c., of tiie defendant and imt the 
 and to l)e considered totally ii'respective and ' Sherirt"s return merely gives tlie (•i)urL jiiii>.li.' 
 U]>art from the suit we are now al)out to hring 
 against t.lie Sheriff." The execution was accord- 
 
 ingly issued and S'2fX) collected, which the SheriH' 
 declined to pay over until the suit for damages 
 was determined. An action was brought for 
 money had and received. 
 
 //'/(/, that the venlict for dcfeiKhint must he 
 sustained. 
 
 /'()■ Weathcrhe, J.— Tiiat under the cories- 
 pondence the money collected was to he held for 
 the purpose of indenniifying the defenchint from 
 loss in the pioceeilings to l)e taken against him, 
 and that until that matter was settled plaintiffs 
 were estopped from claiming the money so col- i 
 lected. 
 
 Bankqf lii-ilixfi Xorth America v. lUU, 
 
 4R. &(i., 121. 
 
 tion in process against ah.seiit or idistomliiig 
 dehtors. 
 
 The Court will pernut the Sheritf to iiint'iiil 
 his return to a writ against an ahsent diOjtoi. 
 .so us to .state that the property attached was tin- 
 property of the ah-sent dehtor. 
 
 lialrhforil V. Chi/»ii(ui, "J Thom., •_•.'{.'), ih.-tin- 
 
 guished. 
 
 Miirixoii i> at. V. /loyil, 2 Thorn., '.'47. 
 
 18. Return -Where Sheriff's return stated 
 
 that he had attached goods "ri.s" the property ni 
 the ahsent dehtor, 
 
 Ilild, not tolie a return warranting lhi-(oiiil 
 in assuming jurisdiction. 
 
 To give the Court jurisdiction the reluri] 
 should state positively that the Sluriti' has 
 attached goods or estate of the ahsent dilitur. 
 I'alrhjbril v. C/i/ywifc/, "2 Tlinm., i'!,V 
 
 1ft. Seizure hj Sheriff- Kepresentation 
 
 as to ownership of property seized — Dm 
 
 13. Return -Estoppel- Where the defen- 
 
 danl, as Sheriff, levied on certain goods under 
 
 executions, and a writ of attachment in hank- 
 
 ruptcy was afterwards issued against th'.; execu- | Nicholson, heing indehted to plaintiff, gave iiim 
 
 tion dehtor, but the Sherifl', after the i-ssue of I a horse to he sohl towards the satisfaction nf the 
 
 the attacliment, proceeded to sell under the exe- | debt. Plaintiff swapped the hor.se with niie 
 
 cutions and paid over the proceeds to the execu- 
 tion creditors, the Court refused to set aside a 
 verdict against the Sheriff at the suit of the 
 assignee for improperly selling the goods, eti;., 
 
 Hardwick for a coll, informed Nicholson cif tlu- 
 trade, fixed the value of the colt at .'?.").4i) lunrt- 
 than the debt, and paiil this amount to ;' cr-4 
 itor of Nicholson in final settlement. Hiinlwick 
 
 and for his failiae to duly execute the writ of j afterwards became dis.satistied with the tia.'.i 
 
 attachment and hand over the property oi the , insisted uptm plaintiff giving back the coll, iiinl 
 
 insolvent to the assignee. applied to M., an attorney, who wrote phuntiit. 
 
 Hild, that the return to the writ of attach- j Plaintiff called on the attorney, and acconliiii: 
 
 ment did not estop the plaintiff in the present , to the evidence of the attorney, declared to him 
 
 suit from saying that the same had not been | that the horse was Nicholson's. According t" 
 
 duly executed. j plaintiffs evidence, not contradicted, he stati-a 
 
 kdd, al.-<o, that a verdict for the net proceeds : to him the arrangement between himself ai^l 
 
 of the sale with 12 per cent, added, was not ex- [ Nicholson in reference to the horse, as ulmveset 
 
 cessive, the evidence justifying t!ie finding of i out. On the same day, and previous to thi 
 
 the jury that the goods would have brought that ' interview, M., acting as attorney of other iwitii". 
 
 amount if properly sold. Section 59 of the ' had entere.l up a judgment against Nl.holsftii. 
 
 Insolvent Act, 1869, is intra rirts. \ and the Judge of the Couiity Court fouiid ilut 
 
 Kmmy,AmiiHM,\.Dwtnmn,2K.kC.,\'d.\Ahe attorney had, on the faith of plaintitl' 
 
 : statements that the horse was not his, hut XkIi- 
 ! Olson's, caused the defendant, the .Sheriff, t.. 
 10. Return-Notice to amend return- ' levy on it in plaintiff's possession, and tli»t 
 Costs of opposing-A mere notice to a Sheriff plaintiff had abstained from lookmg after otiw 
 of an intended motion to amend his rotim. will \ property of Nicholson, who was a mere trar,- 
 not entitle him to costs of afiidavits to oppose sient employee. Hefore any expense had l)«'i 
 motion for a rule nki. i incurred in keeping the horse, an.l before t « 
 
 If a Sheriff has improperly omitted to levy j sale, the plaiutiflf notified the Shentl that 
 the remedy is by action against him, and not by 1 horse was his. 
 
 rule to amend his return. Held, in accordance with the previous ruii% 
 
 Greighton ct at. v. Dani'M James, 304. of the Court (3 R. fc C, 137), that the iilaimi 
 
1257 
 
 SHERIFF. 
 
 125.S 
 
 was not estopped from setting iiii his (iwiu'i'MJiip 
 iif till' Imise. 
 
 /'. /• Wuiitherlic, .1., tlii'.t tlio ri'piv.sfiitiitiiiii 
 was nnt iiiiiikMvitii the iiiteiitinn timt tiie exeou- 
 ticjiurt'ilitor or tiie Shuiifr mIkuiIiI nut on it liy 
 m/AUii tiu! horse, ami it ucuild not ho re;iso;iiil)ly 
 jnffirt'il tiiiU such was tlie intention ; iind fur- 
 thi-r, that the a.ssettion of piaintitf had not l)ecn 
 iiiiidi' lialdly, hut witii a (|ualifieation explan- 
 iitmy of tlieaii'angenient al)ove inferred to, from 
 wiiii'li it seenieil reasonahle that the at,.ornt'y 
 hiul acted ratlier on tlie l)elief timt tlie horse 
 cnuiil lie sliown to lie Xieiiolson's tiian ii])on tiie 
 mere assertion rpf plaintitf tliat it was so. 
 
 MiK'iij V. lUiiiiiitl,-! It. ,t (;., !Mi. 
 
 20. Seizure b.v Slieriif Kepreseiitations 
 
 as to ownership of property seized -I'laintitl' 
 liii)U>,'ht action ayainst tlie defendant, a Sheritl', 
 fi'r tlie seiznri; ancl sale of a horse on an exeeii- 
 timi iiiiainst one N'ieholson, who hi.d some lime 
 liture tiie seizure been the real owner, althoii'_'li 
 liiiii taken the animal was in the [MPssessiou of 
 till' |il;iiiititr, who daiined it niuler an ailcLfcd 
 imicliiise. Defendant's attorney testified that 
 Vli'ie seizure plaintilf had told him the horse 
 t'tloiiged to Xieholson, and that on the faith of 
 that stiitenieiit the Sheritl' had lieeii indiieed to 
 MiZf. IJefoie the sale, however, plaiiititl' not- 
 ilit'l tlie Sheritf'that the horse was his. 
 
 //"■'/, leversiiii^ the decision r)f the County 
 l'"iiit at Aimapc lis, that the plaintitf was not 
 isKipiied Ipy his reiuesentation, and the defend- 
 lilt's having incurred expenses in feeiling the 
 lior>e, \e., in eon.se<iuence thereof, from setting 
 iptlie tiuth as to the ownership <if the horse. 
 
 Mrh'ui/ V. HonniJi, W H. & ('., l;!7 ; 
 i ('. L. '1'., .-.()(!. 
 
 -1. Slierlff cannot purchase at his own 
 
 sale-Objection to secondary evidence— Sale ' 
 of lands under second judgment- As a geneial 
 nil( a Slieritr (like an auelioneer or attorney or : 
 i;iy ntlier person holding a fiduciary character) 
 siiKapalile of purchasing property sold uiicler 
 rttrtitioii hy himself or under his authority or i 
 'lifation, and such purchase is ahsolntely void. I 
 The transaction, however, in this case lieinga : 
 fair line (the Sheriff, although he purchased the [ 
 lain] of the execution delitor through ii third j 
 iwrty at his own sale under execution, having ' 
 ''iiiglit the judgment from the execution creditor, ! 
 M'l having paid him in full therefor, and no I 
 •>m litiiig shown hy the defendants to repay '' 
 '''•■"^lieiiffthe amount so jiaid), the Court uphehl ■ 
 'I't sale and set aside, in an action fif ejectment 
 •'Jthe Sheriff to recover the land, a verdict in 
 
 favor of the clefendants, who cluimed under the 
 execution dehtor. 
 
 Smith <l (d. V. Siiii>li It «/., 2 Old., :«i:t. 
 
 22. Sheriff's deed Defendant In eject- 
 ment elamieil through a Sheriff's deeil and gave 
 in evidence the execution in the suit jirior to the 
 deed. 
 
 Ill hi, that he was not hound to prove the 
 whole proceedings in such suit to have heen 
 regular. 
 
 Sitt hi 1-1(1 III/. V. HVi/'/'/««, "2 Tlioni., 410. 
 
 2;{. Sheriff releasing debtor discharged 
 
 by Commissioners—Action against Sheriff - 
 In an actitin against iv Sheriff for releasing a 
 delptor iniprisone<l under process out of the 
 Ciiunty Court, an order having heeii made for 
 his discharge liy Commissioners for the relief of 
 insolvent ilehtors, the County ( 'ourt decideil in 
 favor of the plaintiffs or, the groiin.i that previ- 
 ous to .Ayiril 4th, ISTs. .-uch ' oniinissioiiers had 
 no pcpwer to I'elieve in t'le case of executions ipiit. 
 of the County Court, ifter the argument of the 
 ajuieal from this decisi 111 and Ipcfppi'e judgment, 
 the Act of 1S7S, "for tlie relief of ildptois im- 
 prisoneil under process issued out of the County 
 Court " was passed, one clause of which Jiiovided 
 that no action should lie taken or sustained l>y 
 reason of such ]iroceedings lieing void ( i. e. 
 proceedings hefore the Commisiiiouers taken 
 previous to this .\et. ) 
 
 //'/'/, that this Act was retrospective and the 
 action could not lie sustailieil, hut that the 
 judgment for defendant should he without costs, 
 as the action had lieeii rightly lirought in the 
 first instance. 
 
 The Court refused to grant a re-argument, 
 ap])lied for on the grounds that the Act of ISTS 
 was ii/ti-a rlri-s, ami that it could not he con- 
 strued retrospet^tively. 
 
 Cntlip it nl. v. Calilinll, I R. ^ (;., 74. 
 
 21. Sheriff's sale - A purchaser at a 
 
 Sheriff's sale may a)ipoint a third p('rson to re- 
 ceive the deed. 
 
 Scott v. Mi-Xiitl It !■(/., 2 X. S. 1),, IIS. 
 
 lit. Trover against -In an action for con- 
 verting goods of the jilaintiff, taken hy the 
 deftndant, a Sheriff, out of the possession of the 
 plaintiff's father, who had formerly owned the 
 goods, defendant, attacking the transfer on the 
 ground of fraud, pleaded a justification under 
 an execution, ami on tlie trial put in evidence 
 the execution hut not the judgment. The Judge 
 instructed the jury that if a transfer liad taken 
 
1259 
 
 SHIPPING. 
 
 1200 
 
 place to the plaintiff, the (lefeiulant siiouM luive registpred in tiie County in whicli they witc 
 
 sliown tlie jiulgnient iw well us the execution. assexseil, and the County Court Judge, on tlu'iui- 
 
 Htld, that this was no misdirection. thority of Kenny v. Thf City of Halifax, deciileil 
 
 Hnnnon v. McLean, ,S R. & C, 101. that they were not liaUle, hut as it was shiiwii 
 
 on the trial of the appeal that the appellant Imil 
 
 On appeal to the Smn-eme Conri of Canada, ,■ ., . , ,• n., i , -u i i i 
 
 ' '^ ' • ' a ship on tlie .stouk.s partially l>uut, he iiiiiciiileil 
 
 Ihid, that the Sherift' was entitled under his ^\^^ assessment to cover half the value .if t!ie 
 pleas to have it left to the jury to say whether said sliii). 
 
 the plaintiff had shown title or right of posses- 7/,7,/_ that the judge was correct in his jiulj,'- 
 sion to the goo.ls in (iuestioii, an<l, therefore, ,„ent as to the nonliahility for shipiiiiig out of 
 there was misdirection. the County, hut that he could not on the trial i,f 
 
 McLean v. ffaiinon, ,S S. C. R., TIMi. that appeal consider a different item of assess- 
 ment, not suhmitted to the Court at all, as in 
 
 the ship on the stocks, and the appeal iiiiist 
 
 therefore be allowed. 
 SHIPPIXW. /" '•' Assr-i.-onrnf ofJamf" Crom , ,S R. & ( ;., :t(il; 
 
 '2 C. L. T., DiNi, 
 
 1. Appraisement of ship and carso — 
 
 Directions given )>y the Court as to the proper 
 method of executing sucii ai)praiseiiieiil. 
 
 77a Rn/iiia, V. A. 1)., 107. 
 
 5. Assessment of sliippins— Ship regis- 
 tered at H3.1ifax— Owner in Guysboro County 
 — Ship absent at time of asse.ssment— 
 
 //(/d, that a vessel registered in the poit nf 
 2. Appraisement - When conclusive - Halifax, and owned by a trader resident at l.saacs 
 Where an a])praisemciit is oiJeied Ipy tiie Court Harbor, and not at the time of the assessment in 
 at the instance of the salvors, witli a view to a the District of Isaac's Harbor, or the County of 
 decree, and has been duly made l)y reliable ( luysboro, was not as.sessable in the District (if 
 parties, the Court will not allow it to be (|ues- Isa ic's Harbor for county rates. 
 
 tioned. 
 
 TIk S. /!. Hiiii,, , Y. A. I)., -J-iS. 
 
 James, J., dis.-:(_!ifiii,/. 
 
 In re Efiie Sinif, .'j R. v<c (;., .'Nil: 
 .SC. L T..44. 
 
 G. Assessment of vessels titj of Hallfas 
 
 •Vessels not registered there— Owner resul- 
 
 3. Appraisement, when too hi^h -After 
 
 two commissions of apjiraisemeiil had been is- 
 .sued and the returns in Ixitii cases found too 
 high, so that no sale could be effected, the Court 
 fi.\ed an upset price, ordered a sale at short ing there - Not assessable for City rates - 
 notice, and made a decree of salvage upon the Halifax City Charter, 1864-37 Vic, c. 30. 
 proceeds thereof. «• 1- ^nd 27 Vic., c. 81, ss. 340, 347, and 361, 
 
 T/f Ccmliriil;;' , \. A. 1),, (i:{, N. S.— K. resiiled and ilid business in the fily 
 
 of Halifax, and owned slii])s which were not n- 
 
 4. Assessment of Sllipping-Appeal to gislered at the City of Halifax, and wliieii lia4 
 County Court from Municipal Council— Power never visited the port of Halifax. Umler the 
 of County Court on appeal as to different authority of 37 Vic, c, 3i», sec 1 , and 'J7 ^ ii.. 
 items of assessment than those appealed from c 81, sees, .340, .")47 and 301, the assessors of tin- 
 —By the Revised Statutes (4th .Scries, 1874), an | City of Halifax valued the property of K., m''\ 
 a])peal from an assessment was given to the ! incluiled therein the value of said vessels. 
 Court of Sessions, In 187f) it was enacted that ' Under the laws in force in relation to tlieCity 
 any party aggrieved by the decision of the Ses- j of Halifax, December, 1877, Held, that vpssel*. 
 sions could appeal to the County or Supreme ' the owners whereof resided and did Imsiness in 
 Court. In 187!) the powers and authorities of ' the City, but wiiich were not registeieil in Hali 
 the Sessions were " given to the Municipal fax, and had never been in the i)ort of Hr.iifiN. 
 Councils." were not assessable for City rates. 
 
 Held; that the power given to the Councils to Kenny v. The City of Halifax, 1 H. & •■■• ■'"• 
 hear rppeals from the assessment uinler this [ 
 Statute was subject to the condition that an On appeal to the Suprem" Com-l of Cnnwh 
 
 Held, tliat vessels owned by a resident, Init 
 never registered at Halifax, and always sailm? i 
 
 appef.1 should lie to the County Court in the 
 
 same manner as formerly from a decision of the 
 
 Sessions, The appeUaiit appealed to the County j abroad, did not come within the meaning of m 
 
 Court against an assessment of 8.')000 on " .ships I words, " whetlier such ships or vessels lie ii' I 
 
 in other districts " which had been built but not i home or abroad at the time of assessment, aiiJ 
 
1261 SHIPPING. 12G2 
 
 thereforu wure not liiil)le to lio asaesseil for City I l)enefit of tlie underwriters. It is not necessary 
 
 tiixM. for ii plaintirt' in trover to iiave a right of pos- 
 
 TluC'ify of Ilalijhx V. Ktiiui/,^S. ('.li.,W~. iitjiiiiioii in tlie goods at the time of action 
 
 Itrouglit, provided he liad sucii right of pos.ses- 
 
 7. mil Of lading -Action against master «'"" '^^ the time the cauHe of action accrued. 
 
 for short delivery of cargo — In an action 1 «i<>"ds assigned in tmiislfu i.y indorsement of 
 
 l.mii^'lit l)y plaintiffs, as assignees of a l.ill of a ''iH of linUiig may l)e revested in the assignor 
 
 lacliiij.' against defendant, the master of a ves- ''>' cancelling the indorsement on the l)ill of 
 
 sei, for tlie short delivery of a cargo of pro- hiding. ... 
 
 , .1 • 1 , 1 ii ,. i.1 1 Stalkvr et at. v. lVi(r et ciL, James, 248. 
 
 iliK'e, the evidence siiowed that the cargo was I ' ' 
 
 the proiierty of '!'., and was merely shipped to ,„ „,., ., „ „ .„„ „ ., 
 
 , ,, , „ , , wi . ,1 10* Bill oflading, labllty Of slipowners 
 
 plaiiitilts to sell on Ills account, and that the , ... ,„ . .~ , . , 
 
 , ^ , ,. lit 1 1 r .1 under exception in — Piaintiff shipped a (luau- 
 
 slioit I lelivery complained of resulted troiii the .. ,r, , , ,, 
 
 , 1 1 ir ■ 1 1 I 11 1 tity or iron on (letendants steamship and took a 
 
 Mies made oy H., witli tlie knowledge and con- , .,, , , ,. ... , 
 
 ,, ,„ bill of lading containing these words: "Loss 
 
 ,,,,., ^ , . .„, ,, I or damaj'e resulting from * * * leakage, 
 
 //■A/, that plaintitts could not recover. , , , , ... 
 
 .,,,.,,, r ,,, , breakage, rust, decay, frost, ram, injury to or 
 
 oo X- w u /on (■<■> .)~o ' soiling of wrappers or packages, liowevercauseil, 
 
 ^\} i>. >. K., (« Iv. iX '■.), .1(.1 ! » » , ^ , r.i, 111..! r 
 
 , I ,., <•( excepted. J he goods to be taken troiii 
 
 alongside Ijy the consignee immediately the 
 vessel is ready to discharge, or otherwise they 
 
 8. Bill Of lading -By a bill of lading, a ^.^ j.^ ^.,,^ae,\ l.y tiie master and deposite.l at 
 «it;iiii -luantity of lumber was stated to be j|,^, e^j,^.,,,,^ of tlie cf.iisignee, an.l at his risk of 
 ^hippnl by C. .S: .J. M. & Co., the plaintiffs, on ,i,.^,^ ,„^^ ,„, i„j„,,y^ ;„ i|,^, ^-arehouse provided 
 l„:ua the biigantine "Annie" (the property ..f f„, ,|,,^t p,„.p„se, on the company's wharf at 
 pbiiitiffs), lying at Port Medway, bound for Halifax, or sent to the public store, as the Col- 
 liemenu-a, to be delivered to .Icfcndaiit or iiis jg^,^,,,. .^^ t,,^ j,,,^,^ „f Halifax shall .lirect." The 
 aligns.- Together with the bill of lading, de- steamship proceeded on her arrival in port to 
 f.mlaiit received a letter, instructing him to .sell i,,^ RaiUvay Wharf, an.l in or.ler to get at goods 
 ihf uatgo and remit the proceeds to T. ^\: C. .1. to be there discharged the plaintiff's goo.ls were 
 iCo. to credit of account of plaintiffs. The taken out and deposited in a shed on the wharf, 
 ktter was unsigned, but there was evidence that pi.^i„tiff „as aware of the arrival of the .ship. 
 It lui.l been written for an.l on account of plain- ,^,„, ^^^^^ ^^^^ freight, but could not obtain de- 
 titVsal.me an.l was i,„l.,rsed, "letter from C. ij^.^,,,^. ,,t tl,e Railway Wharf, as the appr..acli 
 X- .T. M. & Co." There was ..■.inflicting evi.lence „..^^ \,„t^t for teams, ami the agent .)f the ship 
 i,M.i the ;)r.)perty in the go..ds, the weight of ^ifterwar.ls .sent the goo.ls in a lighter to Cor- 
 -vikiice preponderating f..r plaintiffs, wh.. lia.l , ,,ytt's wharf. The g.)..,ls were injuie.l by rain, 
 liuichase.l the lumber horn C. .V .S., an.l the in- ' yit,,gj. „„ ^,,3 i>.,ii„.ay Wharf or in the shed. 
 v-ia'acc.impanyingthcbiUofla.ling an.l letter I ^..^ „f j,,e plaintiff's witnesses gave evi.lence, 
 .it instnicti..ns was hea.le.l, " invoice .)f ..arg.. of : ,,,,t objected t.), that a clerk of the agent for 
 li'.ralier shippe.l by C. & S.'" kc, aii.l was signed .lefen.lants ha.l state.l to him that the goo.ls had 
 ly C. >S: S. Defen.lant .sohl the carg., and re- ^,,„„j. „„t of the ship in the rain, and the .Ju.lge 
 mittcl the pn.cee.ls t.) C. .S: ,S., and action was ^^.,,„ tne.l the cause with..ut a jury f..uii.l tlml 
 
 vmglit by plaintirts <m the ommon cmnts tl,o goods ha.l been .lamage.l in being lau.lcd, 
 
 - for iiK)n.;y received to their use. .^,,,1 ,^.^^.^ judgment for jilaintiff 
 
 tfW, that after the sale the .lefen.lant licl.l yy,/,/ thai" the lan.ling .)f the g.)o,ls at the 
 
 IM i)imuc.lsf.)r the benerit..f the plaintiffs, ami Railway Wharf did not" discharge the defen- 
 
 III remitting them t.) C. & S.. .li.l so in his .,wn .^.^^j^^ ,^„j that defen.lants «ere liable, notwith- 
 
 «™g, and that the verdict, which was f.,r .le- j^tan.lmg the excepti.ms in the bill ..f la.ling for 
 
 i^i.lant, sh.)ul.l be set asi.le. the injmy t.) the g.x.ds by rain, whether caused 
 
 .Vortoii ,t nl. V. MrUod, I R. X" C, 71. ,„ the act of lan.ling or from the .Irippings from 
 
 the she.l, over which plaintiff had no control. 
 
 9. Dill of lading— Indorsement of— Trover Weithcrbc, .1., dU'<>:nfimi, lu/d that the on- 
 
 -Wrecke.l pr.)pertyabaiidone.l to underwi iters signee n.it having taken the goods from al.jiig- . 
 
 wi'l assigned to them by indorsement of the bill si.le they had been landed by the master and 
 
 "! lulling by tlie owner of the goo.ls may not- deposite.l in the company's warehouse at the 
 
 'itlistaiuling be recovere.l in an action .if trover consignee's risk of injury from rain, there being 
 
 W'Higlit against parties illegally in possession in nothing in the bill of la.ling to limit the sliip- 
 
 tl't^ name .if the owner .if the g.iods for the .iwner as to the place in the port .if Halifax at 
 
1263 
 
 SHIPPING. 
 
 12G+ 
 
 which the goods* woio to lie hiii«k'.l lieforo liring ' 'li-r ii vi).;oroiis lilockade, \\n' only .iiirstidii was 
 .U'lHisited in the coniimny's wiiii'house. An<l, ! Iw.w fiir tin- I'mployniunt in wliioli Hit vismI 
 further, tluit the verdict sliould he set aside, | was engaged was* ff ii t'avorahle nature, luid muIi 
 
 as to form an exception to tlie strict niU< nt 
 hhickade. A vessel hired tr) carry hoiiic tiif 
 enemy's suhjects, who compose the slrciigtli nt 
 his country and form his fleets and armies, <iii<l 
 whose impoitance to him is manitesled Ijv tin- 
 1 R. it <;., 140. • peculiar protection granted them hy the (niv 
 ei'ument itself, is a material service perfnniiivl 
 ..• • 1 ■>-..„„k «r u'i.«>» o to the enemy, ami as such certaiidy ciiimnt 
 
 11. Blockade — Breach of— Where a . •" . 
 
 blockade has lieen notilied jmhlicly, no further 
 
 bccau.se there was no legal evidence in support 
 of the ground on which it was based, namely, 
 that the goods were injured in the act of land- 
 ing them. 
 
 liohirtson V. Dominion S. S. Coni/xini/, 
 
 atl'ord to a neutral any plea which c;in jii>lifv 
 
 infoiinution is necessary ; and if a vessel, know- 
 ing of such notification, sails to the ])ort, ami 
 linds It bliickadcd, it is a breach of the blockade. } 
 Thi Car/of/n, .Stewart, .■).'<!». 
 
 the breach of a blockade. 
 
 Till TanKi'iliiiinli, Slcuait. '.'."■l. 
 
 14. Blockade E.u'use for breath of 
 
 Order (if Till .lanuary. lN<»7, furbiddiiig tniilc 
 12. Blockade - Cargo brought from a between two enemies' ports, ap|ilics,..,ly t-. v.,. 
 blockaded port by land, and shipped in an ; sels taken between the two i.-.rts. and i.nt ;„ 
 open port, not liable to confiscation - IJy order ; those merely inten.ling so l.> tia.lc 
 in Council of -.'(ith April, ISOf), all ports and -^ bl„cka.le cannot be cNtendcd by infcmi.v 
 places under the (iovernment of France, were m"! supposition. It is one of tiie severe nj;i,i> 
 placc.1 in a .state of blockade. "»' "■"■• "''i^''' •'>■'• l'''''^^' '" '' ''^''^^ '""' ''-"' 
 
 A vessel was only at Tonningen, and in tlic intcriaetation. •Die Order cannot lie prc>>nl 
 RiverEyder, which were neither of them within lieyon.l tiie jilain and dctinile words, 
 the compass of any blockading order; but a Tiie l)lockadc of the port of Copeidmguii iina 
 great part, nearly the whole cai-go, was f:ent the other p<.rts of Zealand is not a lilocka.ic 
 from Hamburgh, whicli was a port within tiie generally of all Denmark, oi' .,f tlie eMtriiuce.! 
 said Order in Council. 
 
 //-/(/, that all such goods as may have been 
 brouglit from Hamburgh, or any other blockade 
 port, to Tonningen by sea, were liable to con- 
 demnation. That all such goods as may have 'de necessity, shall lie admitted as an a.lu.uMt.' 
 been brought from Hamburg, or any other justilicafion for a vessel proceeding t- a Mmk- 
 blocka.led port, by land or inland navigation, iided jiort. Wliatevcr other reason is assii^in.!, 
 and such as may have been brought from ports it is ))re.sun,cd she is going there to trade. 
 not blockaded, or from the interior of the conti- ] ''''<' /^•O"'' --■. •Stewart, 'X. 
 
 nent, whether hostile or neutral, provided they 
 
 belong to neutral pr.iprielors, were entitled to 15. BlOCkadC (iOOds, brought froill IllC 
 
 restitution. blockaded ports by water, to ports not iniiiin" 
 
 The Thoniat liV/«);(, .Stewart, "JOO. jiendeil in the Oi'der in Council, coiistitut. i 
 
 ' breach of the blockade. 
 
 tlic r.allic. 
 
 It has l)ccn laid down as a general luk' in 
 liroisli Courts of I'i'i/.e, tliat no excuse nr piv- 
 tence wiiatever, siiort of llic most insuriiKiiiMl i- 
 
 Blockade of Leghorn broken by bringing:.' \* 
 
 from titence by sea to Civita Vecchia. 
 
 Thr .]fttri/iiii ill'. Soiiii rin/i ", Stewart. 44V 
 
 1«. Blockade -Knowledge of Kdaxal 
 
 13. Blockade -Conlraband-It has been 
 
 decided in several cases that carrying soldiers 
 anil sailors to France, though not regular corps, j 
 and not intended for any particular service, is 
 eii"aging in a tvade of a contraband nature. 
 Though a few straggling or accidental persons , — Tiic Xaiicy was captured by the Bestoii .* 
 might innocently be permitted on board a gen- account of having broken the blricka(k' 
 eral passenger vessel, yet when a vessel is em- Martinitiue. Siie was uu American vessel cl 
 ployed for tiiat purpose only, and carries a tered by one Inkel of New York to carry iUiiii;'» 
 whole cargo of the ciiemy'.s subjects, w ho may of provisions to that island, where siie uitivpI 
 immediately be hostilely employed against (4reat March iOth, 1804, at the port of Triiiite, iV"!" 
 Rritain, such a cargo can scarcely be considered whence she proceeded to Saint Pierre on tiie.ii'l 
 as of an innocent nature, especially when sailing April, sailed out again on the l.'ith, on lienaiini 
 under the peculiar protection and passport of , to New York, and was taken upon tlie iWi 
 the French (iovernment. '■ Further proof had been directed to he ohtaiiiel 
 
 In this case the port of destination being tin- i upon these points ; first whether the kiiowii'Ii.''-' 
 
1265 
 
 SHTPPrNG. 
 
 12GG 
 
 111' ii strict l)l()i'kii(lf of .Miirtiiiii(iic, uiul jiiiiti- 
 ciiliirly iif CiiimniMldii; HimhI's notiticiitidii "f the 
 Ttli Ki'ld'iiiiry, lf^U4, liiul ri'iiclu'il Xuw York 
 liefiii'i' tlie XiiiK'y Hiiilod fi-diii tlit'iici-, mid 
 HCiMincUy, wlietlitT tlio lildckiiile df tliat isilimd 
 had lii'cii riiisjiuiided froiii alidul "JSth Miirch till 
 after Ajnil l.'itli, 1.S04. 
 
 'Phi! I'liitisli fdi'cu WHS withdniwii fr-oiii the 
 i^lalld iilidut .Miu'cli "JStli, and a resident of the 
 i>laiid deposed tliat it was the jj;eiieral opinidii 
 there that the liloekade hail ceased. 
 
 UiM, tiial stieliaii opiiiidii will go a very little 
 way to eslalilish a siispeiisioii, unless it is proved 
 to have lieeii foiwu'.ed upon facts, wiiich would 
 >ii](pdit such a Cdnclusioii. 
 
 \o vessels, it was said, had heeu seen from 
 the island, except that tile llleiiheiui liad once 
 junked into St. I'ierre, and another vessel or 
 twd liad oecasidnally appeared. 
 
 Ill III, no proof of a rehixation. Tlie vessels 
 iniirht have taken their stations further oil'. 
 l»i.-tanee is iiuiiiaterial, and iiothinj^ can he con- 
 sidered as evidence of a suspension which is con- 
 «istciit witii an actual hlockade. 
 
 //■/'/, lireach of the liloekade fully proved, and 
 that the lej,'al iicnalty of conliscatioii must attacli 
 upon the parties who are privy to it, up<in tln' 
 >liip from the eoiuluet of the master, and U])on 
 the ^'eneral earyo claimed hy Tnkel, as the 
 wliole liusiness wa.s conducted under the iiniiie- 
 iliate direction of his clerk aiid agent. 
 
 Till Xiiiiri/, Stewart. '2S, 
 
 lU'versed on ajijieal to the Lords of Appeal, 
 f\(.c])t as to Inkel's goods which were con- 
 'Iciiiiicd, SUt Mnnh, ISI'i. 
 
 Stewart, .SS. 
 
 n. Bloekiule of (iipaeo.i — Excuses for 
 
 breach — Loose information that a liloekade has 
 liccu raised aflfords no excuse foi- a lireach. 
 Want df water and ])i'i)visions, 
 
 H'//, not proved in tliis case and insutticient 
 if it were. The failure of excuses shows plainly 
 tliat tlie voyage was premeditated. 
 
 Till: Elr-ahith, Stewart, SO. 
 
 IS. Blockade of Martlnl(|uc— Vessel and 
 
 i.argo seized l.Stli August, 1S04, ahout two 
 mmuhs after liloekade had ceased, ordered to be 
 icstiired, an<l the captors condemned in costs. 
 
 Till' Ship IhtMfy, Stewart, 39. 
 
 19. Blockade-Proof Of- Burden of proof 
 
 —Where a blockade has been known to exist the 
 lilaiiitiff must prove the relaxation ; but where 
 it is not known that a blockade has been com- 
 menced, it is for the captors to establish it by 
 fviilence. Licensed vessels are not affected by 
 
 an Order in Council for bhurkade, where such 
 does not ajipear to luive bieii His .Majesty's in- 
 tention. 
 
 A block. ide is not a ineasuru which legally af- 
 fects the enemy at all ; it iiperates, in point of 
 law, only ujion neutrals. Upon them it has 
 a real legal etlect. It gives new rights t<i the 
 blockaders. Without it neutrals might trade in 
 .safety to the jiort. It is the blockade alone 
 which creates the light of ca)ituring the vessels 
 of neutrals. .Since a blockade creates no right 
 of capturing eneniy's property wiiich did not 
 before exist, if tiiis general right of capturing 
 his property has been suspcnd(!d by a license it 
 cannot be revived or renewed by a blockade, 
 and cruisers cannot acijuire from the liloekade 
 a light to capture the enemy's property, in a 
 case where that right has been susiiendcd liy the 
 act of the cruisers' own ( iovcrnnient. 
 
 Tin Oriim, Stewart, 4!I7. 
 
 '20. Blockade — RctiiiisHes — .4 blockade 
 
 must be ill jhrlu. Xotitication alone is not 
 suliicient. The blockade of New N'ork com- 
 menced on •J'Jnd dune, ISKi. .After a public 
 iiotilication, the actual investment constitutes a 
 complete blockaile witlmut further notice. 
 
 Thi /i'l /iiili/irmi, .Stewart, ."iT 1. 
 
 21. Blockade -Vessels associated for a. 
 
 block.ide are entitled to shares in ca])tiircs of the 
 oneniy's property, though the pri/.e was a wreck 
 on shore and not captured aHoat. 
 
 Till F/i;ili>. Stewart, ."i.-i!). 
 
 22. Bottomry bond, action on -Ports of 
 
 the Dominion— Home ports in relation to each 
 other— A vessel belonging to (Quebec havitig 
 saileil from Halifax bound for ("ow l!ay, iiiCajie 
 iJreton, encountcreil heavy gales and was coni- 
 jielled to put back after having been at sea for 
 forty-three days. A survey having been held, 
 she was pronounced to be totally unlit to jiro- 
 ceed on her voyage, unless refitted and repaired. 
 The owner was then at Halifax, and being un- 
 able to procure funds, applied to one (i. 1!. F. 
 for a loan on bottomry, and (i. R. F. advanced 
 the sum reipiired, Tlie vessel was already 
 mortgaged to (i. H. 15. in Quebec, but of this 
 fact (i. R. F. had no notice. (J. R. F. took 
 proceed'iigs to recover the amount due on the 
 bond and was opposed by O. H. R., who set up 
 liie priority of his mortgage, ami denied the 
 validity of the bond. 
 
 Hdd, that all the ports in the Dominion must 
 be accounted home pi'rts in relation to each 
 other, and therefore that the bond could not be 
 enforced in Admiralty. 
 
1267 
 
 SHIPPING. 
 
 12C,S 
 
 iStrioturojt mi tlie want c)f juiisiliction in llji; 
 Vift'-Adniiralty ("luiit iiiul tlu- c()n»i'<(iieiit fail- 
 urt's i)f justii-e in thu Coloiiies. 
 
 Th>' 77in« .S'M/,rs, \. A. D., 149. 
 
 '13. Charterer nelentlon of vessel by- 
 Loss during detention —Wiieri' ii vusscl is de- 
 tiiinud liy liic cliiii'terets lifjiunl tiio aij;i»'ed tiint' 
 for loadiiij,' and is limt in a sti.riu iluiing siioli 
 dctt'iitiiin, tlie loss of tlie vessel is tiii> roniote a 
 i'')nst.M|U('ni'f (if tiie detention to form tiit; suliject 
 of an aet ion against tlif i/liarteieis. 
 
 Tohm V. fii/moiifls ,i i,/., -2 Old., Ul. 
 
 24. Charter-part} A charter-party con- 
 
 tiiined the following elaiise : " It is agreed tlmt 
 the I'esponsiliility of the eliarterui' ceases as soon 
 as tlie cargo is on Uoard, the vessel holding a 
 lien on the eai'go for freight and demuriage." 
 I'laintifTs sued defendant (the uharteiei) for tlie 
 fioight, setting out in their deelanitioi; that the 
 vessel was loaded and ])ideeeded to sea with her 
 cat'gf) and delivered the cargo, kc. 
 
 Defendant dciimrred. 
 
 Hi/<!. tliat the deniiM rei' sliould he siistidned, 
 
 as tic declaration slioweil that defendant was 
 
 not lialile. 
 
 Cook ft a/. V. Mi-L<o<l, :< X. S. 1)., 307. 
 
 2.1. Charter-party— Agent's authority - 
 
 Ratification of agent'a acts— Defendants iii- 
 slnicted their agents at New York to charter a 
 shii) to carry certain goods thence to Sydney, 
 ('. B. The agents chartered plaiiititlV;' ship, and 
 the voyage was carried out, and tile good.s duly 
 delivered and received liy defendants. On the 
 way to Sydney the vessel called at Halifax, 
 where one of the defendants, wiio had pri viously 
 received the charter-party, visileil lier. He 
 was also present at Sydney when the goods were 
 delivered. On neither occasion did he make 
 any olijection to tlie freight jiayahle nnder the 
 charter, lint sul>se(iuently refused to jiay it on 
 tile ground that tlui rate was too iiigh. and tliat 
 his agents had exceeded tlieir autliority in enter- 
 ing into the charter-party at that rate. 
 
 Hilil, that not liaving made any ohjection 
 either at Halifax or Sydney, though fully 
 ac'iuaintcd with tlie rate of freight agreed to he 
 paiil, and having received the full lienefit of the 
 contract, lie had thereby ratified it, and must 
 fulfil his obligations thereunder. 
 
 r.oomn- it al. V. Starr (t al., li X. S. 1)., 430. 
 
 20. Charter-party — Entire voyage — A 
 
 vessel was chartered hy defendants for the fol- 
 lowing voyage, viz. : From Halifax to M.mtreal, 
 here to discharge the cargo laden on hoard and 
 
 to load a leturn cargo, and thence to proceed (u 
 St. .John's, Newfoundland, or to Halifax, at tlie 
 option of liie charterers. If ordered to Si. 
 John's, Newfoundland, theii at said port to dis- 
 cluirge cargo and load a retui'n cargo of dry tisii 
 in hulk for Halifax, and on linal delivery of 
 return cargo al Halifax to eml tiie voyage, tiie 
 charterers to pay on tiie return of vessel id 
 Halifax the siiU' of Is. 4d. per net cwt. fm 
 sugar to .Montreal ; "Js. per hhl. for llour in 
 Halifax or St. .John'.?, and from the lattei' pnit 
 !)d. per ijuintal for Hsli to Halifax. After I lie 
 plaintifl", who was master and agent of the 
 vessel, delivered the cargo at Montreal it was 
 agreed lietween the plaintiff ami defendant.-., 
 and such agreenieiit was indoiseil on the charter- 
 party, that in consideration of tlie sum of I'l.'i 
 the jijaintitf wouhl proceed from .Montreal in 
 Harhor (iraee, N'tl'd., and load his return cari;ii 
 tliere, or at St. John's, as the charterers shoiilii 
 direct. 'I"he vessel loaded at St. John's and was 
 lost on her voyage from thence to Halifax. 
 
 //ilil. that it was an entire voyage andlhal 
 the plaintiff was not entitled to recover. 
 
 Wilkins, .1., ilisMintiiiti, 
 \ Liratti. V. S'(l''rit a/., '2T\\i<\t\.,:\^'. 
 
 i1. Collision at sea -While two vessels, 
 
 the (•'tiwn and the £lliu, were approaching llic 
 harbor of New York, they collid-jd at an eaii.v 
 hour in the morning, about twelve miles finin 
 the shore. I'>oth had their lights burning briglit- 
 ly and w ere visible to each other. The A'/'Vi 
 was seriously damaged, but succeeded in reac'.i- 
 iiig New York, where she was owned. Tlif 
 diiioa was only slightly injured, and instead nf 
 continuing her voyage turned about and nia^Ic 
 for Halifax, where she was proceeded against li.v 
 the owners of the E/hu. The evidence was vei.v 
 voluminous ,uid contradictory, but the mass nt 
 it went to show that the EUm was blameless. 
 
 H'/'i, that the 0% iioa should be liable for i\k 
 damages caused to tlie Ellia. 
 
 The auioa, Y. A. U., '-T.'). 
 
 28. Collision — Both parties In fault - 
 
 Where both colliding ves.selsare in fault, iieitl.fi 
 is entitled to recover damages or costs from the 
 other. 
 
 A brigaiitine was heating up the ohamiel k' id- 
 iiig to Halifax Harbor between daylight ami 
 sunrise, showing no ligi. s, and it being veiy 
 dark. A steamer was coming out of the liaili'H' 
 at full speed, not blowing her whistle, nor ring- 
 ing the bell. A collision occurved, resultiiii: i" 
 damages to both vessels, for which damage^ 
 actions were brought on behalf of each vessel 
 against the other. 
 
12G9 SHIPPING. 1-270 
 
 Ihlil, that tliL' hriuiiiitiiii' wax, in tlif wkiiii.' iiiiiiuti'x liffoie tlif ciillisinu t'l avniil a scliiHUifi- 
 in »;xliil)itin^' no lij,'lit.s, luul tliat the sti'atiRT that \\a.-i licualiiii'il near liy tin; lli'in. The lnok- 
 wiw also ill fault ill going at full hi»t'fil, ami lliat, out oii hoard the stfaiuui' tliil not puicfivi' the 
 thiireforo, iieitliur vessel was entitled to recover , Hero until it was too late, 
 damages or costs from the other. //</'/, that althoii>,'li it was one of those cases 
 
 Coiistruclion of Merchants' .Shipping Act, in wiiicli tiie two colliding vessels occupied siuli 
 
 section 'JOS. relative positi-jus that tiie lights of the schooner 
 
 Thf. Cortlilin awl Tin Os/n-i i/, \ Old., 77-. could not lie seen hy the steamer, yet the speed 
 
 of tlie steamer heing too great and iier lookout 
 
 •29. t'ollLslOn - Int'Vltable accident The ''^•f^''-t've, in that tlic schooner herself was not 
 steamer /.'/./((/(o//,/ whih'.-cekini.' shelter from a ii'>ticed in time, the steamer was lial.le in 
 
 damages. 
 
 Til' Alhnwlm, V. A. 1).. --Mil. 
 
 fearful storm, and using every possible pre- 
 caution, unavoidalily ran down and sank a small 
 schooner. (In an action lieiiig In ought for 
 
 damages, SU. (OlllsiOII - JtirlsdlCtiOII - WIU'Il IWO 
 
 //'/'/, tiiat jtldgnieiit sliould lie for defendant, vessels, the Wavelet and I )iuidce, were attemiil- 
 
 each party jiaying tiieir own costs. ing to pass one auotlier in Halifax Harlioi, they 
 
 Till ItiihiiKHiil. \'. \. 1)., 1(14. came into collision under circiiiiistancs for wliicli 
 
 tiie former alone was accountalile, and siie was 
 
 30. Collision - Incvltabh' accident - .Vn H'^'-^t'"'^' i'»-'i'' "''''i^' '" '^'in^iges. The fact that 
 
 iiicvilalile accident in ).oint of law is tliis, vi/ :- 'l'^' Wavelet at the lime of the collision \Nas in 
 
 that which the party charged with the ottence charge of a pilot, /(-/'/, no grouml for exemption 
 
 could not possilily prevent" liy the exercise of f''"'" lii'''il'ty- |>ih-tage not heing compuU.ny 
 
 ordinary caution, "care and maritime skill. »"'l^'' ''"-' l'i"viucial Stuiuie. 
 
 Till Cli'ixi V \ 1) 11.'? Tile collision occurred inside Halifax Hailior, 
 
 and llicrefore within the lioily of the County 
 
 31. Collision - Damages to wharves -"*' """f"^- ''", 'l^'>"ndant put in an al.solute 
 Jurisdiction of Court -The steamer C\,<v, was appearance wuhoiil protestor declinatory plea, 
 Ivinu- at her wharf in the Harhor of Halifax. '"'» ^'"-' 'i"^-tion as to the jurisdiction ot the 
 when a storm .,f unsual violence arose .vith ex- *'"'"' "''^ ''''^''-"'^ ''>' '"'" "' ""-' '"-■'"''"-■ 
 traordinary suddeness, there having, l.een no ^^''''- ^''^^^ "■"'^•■- ^1'^' '^^^^'"t^^ -^ ^''^'l- ^'^'I'' 
 nther indication of its approach than . falliiez '"• ^'■"' -" '^"''-■^- '-"l'- -^- "'" *'""•' ''"'' '"" 
 harnmeter. .Some a.lditional iirecauthms were .i"nsdiotion m the matter. 
 
 taken so to moor her that she miglit ri^lc out "" "'"'''''' ^ -^^ '*•"■'■*• 
 the storm .safely, Init these clid not prove ade- 
 
 • laate, and hreaking away she came into col- .^^^ CoUlslOH -- Parties liable - On tbC 
 
 lisinu with several wharves, among them tiit! ,|,,,ining of tiie ■J;{rd .laiiuary, ISSO, the .Sarah 
 
 pliiintilT's, causing serious damage tiierelo. It ].; ]■\■;^^^.^■ „as lying to, about eighty miles south 
 
 iiliiicaicd in evidence that other ami more etlici- ,,f (;,_,orge"s shoal, iieading northeasterly, the 
 
 cm methods might have heen used to .secure the „.i„4 \,^.^^^,^ southea.sterly and lilowing a frcsli 
 
 .steamer, and that had they lieeii employed the ,_,.^\^. J]^^, ,,y.^u:\\ hail lieeu changed at 4 a. m., 
 
 prolialiilities were strongly in favor of her j,,iii i,.„| \,^.^.^^ sliortened, a man stationed .it the 
 
 remaining fast to her wharf. l„,^v .i,, l,,„kout, and one at the wiieel, whicii 
 
 ffil'l, tliat she was liable for the damage was lashed liard to port. Tiie clouds liad begun 
 
 ''"'"-'• to break overhead, but it wa.s c|uite ilark on the 
 
 Till Clia.<i, V. A. 1)., U.S. j^,„,|^„„ -|.|,^. Sarah K. Fraser had her regula- 
 
 Affirmed on appeal to tlie I'rivy t'ouncil, tioii lights in their proper jilaccs brightly buiii- 
 
 V. A. 1)., I'J.'i. iug, and two lamps Imrning in a skyliglit near 
 the stern. A liglit was reported astern a mile 
 
 32. Collision In port -While the schooner distant accor.ling to plaintitl's witne.s.ses, and 
 Hero was drifting ilowit Halifax Hailior with five or six minutes befru'e the collision took place, 
 tiic tide, bound for a ]i(irt along the coast, all As soon as it was seen a glass lantern witli kcro- 
 lier sails being set and tlio regulation liglits duly sene lirightly burning was exhibited at the stern 
 Imrning, she was run into liy the steamer Alham- of the Sarah E. Fra.ser, but this was not seen, 
 Ina, which had just eiueved the harbor. The nor was the ve.ssel itself seen by those onboard 
 niglit was tine and cleai, and the harbor perfect- the steamer until .she approached at a rate of 
 ly calm. The steamer was coming on at a good twelve or thirteen knots an hour to witliin five 
 rate of speed, and had altereil her course a few or six hundred feet, when the helm was iinmedi- 
 
1271 
 
 SHIPPING. 
 
 1272 
 
 iitfly put him! tn |)(iit iinil I'liginuw MtDpiu'd, Imt 
 tfio Into to iivnid tlif L'olliHioii. 
 
 Hi III, that the Simliiiian nIkiuM liavo Heen 
 tilt' liulitH (if the Sarah K. Kiasur in time t" 
 avdiil a colliNioii ; that thu rate nf Npceil was 
 t'Xci'NKive iiiiik'i' tlio circtiinstaiR'i'N, i'N))et'ially ax 
 tlie vessel was in tiie track of vessels hound to 
 iinil from Atiicricaii jMirts ; that the engines 
 should have hecn reversed \ that the Saidiuiiin 
 was scdely at fault for tile eollisinn, and that tlie 
 Sarah K. F'raser was hlameless. 
 
 Th< Siirillinidi, •_» I!, .t (!., 40!) 
 
 a.i. rolllNion rnrtlos liable - The Ran- 
 
 neiet I'aiiu' to author north of < leor^'e's Island on 
 Oc'tolier "Jlst and there remained until Oetolier 
 •il'ml. On Oetolier "J'Jnd the Alhamlira eanie to 
 anchor several hundred yards north of the liau- 
 iieret. l)urinj,' the ni^'ht a j.'ale eoniini,' on tlie 
 latter dragged towards tiie Alhainhia, lull after 
 luitting out a second and third anchor was riding 
 safely to vviuduard of the Alhanihra and not 
 drauiriiig towards her. The Hortou also eaiue 
 lonnclior (ui tlie L'2nil also to windwanl of the 
 .Mhamhra, and liegan to drag dangerously near 
 to liie .Alhauihra which then paid out ten fathoms 
 of faille, hut the vessels got so close together 
 tiiat as they sheered with the force of the wind 
 they toni'iu'il or nearly so. The captain fif the 
 Alliamlira then feeling his jxisition to he danger- 
 ous, determined to change iiis herth hy steam- 
 ing \\\i to Ijis anchor, ami at the same time 
 hoisting in the chain with the steam winch. In 
 doing so he collided with hotli the other vessels, 
 and the evidence was clear that when weighing 
 anchor lie ovcriaii his cahle. and in the o])inion of 
 the assessor the whole of the sheering that led to 
 the collisi<in might have hecii avoided l>y keeping 
 a steady strain on the cahle while weighing. 
 
 ILH, that the Alhamlna was not justified in 
 steaming up on her cahle to get her iinchor at 
 the risk of damage to the neighhoring vessels, 
 and that she was wholly to Idaine for the collision. 
 Haiuii rit, Hortoii iiml AUnunlini, 2 R. it (!., '<\'2. 
 
 m. Col!ls!on-Pllotage-The fact that the 
 
 vessel to l)lame, in a case of collision occuriug 
 within the Harhor of Halifax, was at the time 
 in charge of a pilot, 
 
 IL III, no ground of exemjjtion from lialiility, 
 pilotage not heing compulsory under Statutes of 
 Xova Scotia. 
 
 Thi: Wavilit, Y. A. I)., 84. 
 
 37. Collision -The French harqiie Clem- 
 entine, on her way to Halifax, collided with 
 and sank an American fishing schooner on !Si, 
 George's Rank. The schooner was at anchor 
 
 anil the haniue sailing at a fair speed. Tiie n.l- 
 lision occurred soon after siinriso, and there was 
 conflicting evidence as to the state of the wealjur, 
 the plaintill's alleging that it was clear, the di'. 
 fendants, that there was fog and mist. A 
 sutticient look<iut hail heeii maintained on hoind 
 the liari|ue until within a few minutes hefore the 
 collision, when the man on the lookout \vas 
 called down to assist in working the vessel, and 
 hefore he had returned to his post the schooner 
 WHS struck. 
 
 //'/'/, that the hari|Ue was in fault ; that a 
 sutiicient lookout should have hcen niaiiitaiiicd 
 throughout, and that she was therefore lialile in 
 damages and costs of suit. 
 
 Tlu' i|Uestion of jurisdiction having heeii rai-.i d 
 iis neither of the vessels were owned in lirili.-ii 
 ])ossessioils, 
 
 //'/'/, that the Court had full jurisdictinii in 
 the matter. 
 
 Till- Cli nil ii/iiii , V. A. D., Isii, 
 
 :\H. Collision in |)ort The S. H. M. A. 
 
 Starr, while jiroceeding down the hailior of 
 Halifax, came into collision with the scIioiiiut 
 Kditii Wier. The schooiuM' was lying at a wharf 
 ill sucii a ]iosition that thehowsprit and jili'iuuni 
 projected some twenty-tivc feel licyoml tlie tad 
 of the wharf, thereliy violating the Harhor regii- 
 lalious. The collision would prohiihly not liiivo 
 occurred hut for another schooner which had 
 been lying outside the Kdilli Wier, and uliicli, 
 just previous to the collision, had broken ground 
 and thus narrowed the channel down whicli the 
 steamer had to pass. 
 
 Ifilil, nevertheless that as tlie Kdilli Wiur's 
 jiositiou was contrary to ihc Harbor regulations, 
 she shiaild be liable for all ilauiages to the .M. 
 A. Starr, with costs of suit. The rule as to 
 inevitable accidents slated. 
 
 Si i: .sii/irn, -Ui. 
 
 Till Hiliil, Wiir, V. A. 1)., •-•:!:. 
 
 3ft. Collision -The We're Here came to 
 
 anchor in the Harbor of Halifax on the night nt" 
 November oth, using only one anchor. On t lit' 
 fith the Ren Nevis ancliorod beside her, ami it 
 was allpged in too close |)roximity. On t'lt- 
 morning of the 7tli both vessels were apiiareiitly 
 securly moored, and the ca])taiii of the former 
 went ashore leaving six men on board, lu I'lC 
 cfiuise of the morning a gale sprang up and the 
 \Ve'rc Here not being adeiiuately moored she 
 collided with the Ren Nevis. The men on hoard 
 the former vessel did not act as experienced 
 seamen should have done under the circum- 
 stances, and her captain made no attempt to get 
 on board, while no neglegence or want of sea- 
 manship was proved against the Ren Nevis. 
 
l'27'.i 
 
 SHIPPING. 
 
 1274 
 
 //'III, tliHl jiiclgliiclit •■liiiiild III' flili'lid t'ciitliii 
 lliii Xivis fur tliu cliiiiiiit't'M iiml cii.st.H. 
 
 Tlo II'. V. ll>n, V. A. I)., I. IS. 
 
 4U. I'unvcniloii or 181H imcs relating 
 
 to- 
 
 Sn (OWKMIOX OF 1S18. 
 
 41. l'08tii Nceiirlty Tor In Vlee-Adiniralty 
 
 Court—Wlifi'f llic |(laiiititl', in iiii iictimi on it 
 liiittiiinry ImmicI, was lusiileiit nut nf tliu juris- 
 ilitliou of thu C'duit, iiltli'iugli pri'sunuilily a 
 Hi'itish sul)joc't, 
 
 //(/(I, that iiu apijlioalidU lifiiig niadu tlieiofin 
 111' should liu lecjuiifil to givu sucurily for costs 
 nil till' (It'feiuhiiit uiaking an atlidavit of merits, 
 ami of tilt' (k'foUL'f lioiiig lionajiih. 
 
 Th< Ahlui Alio, Y. A. 1),, 111'. 
 
 42. Importation-Clearing out to Iiost<»n, 
 
 L'liUriiig, tia<liiig, .incl cluariiig froui tiicucc to 
 Hidifax, h'iil au iuiimitation from IJostnu. 
 
 Thi. Union, Stuwart, SVS. 
 
 43. Importation -Wliat conNtitiitcs im- 
 portation under the Revenue Laws— It lias 
 lii'cii decided over and over again, that in order 
 111 constitute an imjiortation, it is not necessary 
 tliiit the vessels should come to a wharf. 
 
 The meie fact of coming into |)ort with goods 
 on hoard is [irima Jhrii evidence of an importa- 
 tion and is, eonsutiueiilly, clear'y a viohitiou of 
 SL'i'. 'I of ,Sl Vic, c. 15, where the port is not 
 a port or place of entry, and the goods are 
 <liUialile. 
 
 A vessel, while proceeding from the island of 
 .St. I'icrre, which i.s a colony of France, to New- 
 fiiiuidland, put in at Asjjy Hay, in the island of 
 Ciipe Hreloii, the said Aspy Hay not lieiiig a 
 lioit of entry, without necessity from stress of 
 wi'ather, and having dutiable goods on boaril, 
 Minni of which goods, the evidence went to 
 .■•how, had been there landed, and no duty at 
 any time paid thereon. 
 
 //(/(/, that, under sec. !) of 'M N'ic, e. 0, the 
 ajitain of the vessel had incurred the full pen- 
 iilty of i!S(IO, imposed by that section. 
 
 Tilt Minnie, Y. A. D., Go. 
 
 44. Jurisdiction-A British Court lias no 
 
 jurisdiction to punish a foreigner for an ort'ence 
 CDinniitted on the high seas, in a foreign ship, 
 against a Hritish subject. 
 
 Queen v. Khimian, James, 62. 
 
 45. Jurisdiction Of Court — Two out of 
 
 tlifee proniovents shipped at Bermuda on board 
 
 the ship lilielh'd, a blni.kade iiiniii'r, for the 
 round voyage from Heiiuuda to Wilmington, 
 Nortli ( 'aidlina, and theme to Halifax, N'ova 
 .Scotia. 'I'he lemaiuiiig promovenl shipped at 
 Wilmington in room of one of the otheis. No 
 ship's articles were signed, but there was evidence 
 to show that the master had contracted to pay 
 toeadi of the promovents certain specilied sums 
 in three ei|Ual instalments. 'I'iie contract Wi'.s 
 id)sohlte as to two of the instalments, iind as to 
 the third there was a condition that it was to be 
 paid oidy if the claimants' conduct were satis- 
 factory. 
 
 liihl, 1. That this was not an ordinal} en- 
 gagement for seamen's wages, but u sjiecial 
 contract. 
 
 '1. That previous to the Admiralty L'ouit Act 
 of lS(il, -lA Vic, cap, Kt, the High (.'mirt of 
 Admiralty had no jurisdiction over such con- 
 tracts. 
 
 .'). That this Act did not e.xteud to the Vice- 
 Admiralty Court, nor were the provisions re- 
 specting special contracts, embniceil in its tenth 
 section, extended to those (.'ourts by the Act of | 
 l.SO;), ;{(( Vic, c '2\, sec 10. 
 
 4. 'J'hat although the commission foinierly 
 issued to the \'ice-Ailmiralty ,Judge empowered 
 him "to hear and determine all cau.ses accord- 
 ing to the civil and maritime laws and customs 
 oi our High Court of Admiralty of Kugland," 
 yet this power, like some o hers assumeil to be 
 bestowed by the coliiuiission, is freciuently in- 
 operative. 
 
 And that therefore this Court has no jurisdic- 
 tion in cases like the present. 
 
 Htlil, alio, that allhougli tlie lespondents 
 
 were bound to have objected to the jurisdiction 
 
 ('/( limine hy appearing under protest, still that 
 
 where the Court is of opinion thai it has no 
 
 jurisdiction it will not only entertain the olijec- 
 
 tion at the hearing, but is Ijouml itself to raise 
 
 it. 
 
 The Cilij of PihrstiHiy, Y. A. 1)., 1 ; 
 
 1 Old., 814. 
 
 46. Jurisdiction— Possession, suit for— 
 
 J. H., when building a small vessel, was fur- 
 nished with supplies therefor by DeL., who put 
 into the vessel on the whole a larger sum than 
 J. H. did. Afterwards it was agreed that Del... 
 should own half the vessel, aiul in addition to 
 this he took a mortgage from J. H. previous to 
 tlie completion and registry of the vessel. It 
 was filed at the Custom House, but could not be 
 registered, as there was no registry of the vessel. 
 On her completion the vessel was registere<l in 
 the name of J. H., and no mention made of DeL. 
 as part owner. DeL. subsequently sold her to 
 
12 
 
 07 
 
 <•» 
 
 SHIPPING. 
 
 1270 
 
 iiiiil',, «liii it'^i»ti'i'«il UH ipwiicr iiiidfi' lii'< liill 
 lit «iili', 1111(1 tlii'ii .1.11. iiistitiitrd |iriuiicliiigH 
 
 II^MillNt tlll'lll lllllll to ri'^llill IMIHITINilill, 
 
 //'/'/, that tlif ('(imi iMiiiM nut (.■uiuol tlio 
 i('i.'i»<tiit'M, ii()i' Di'ik'r II mill.', no the paitii'M liiul 
 ;i|i|ilii.'cl til till' wrong Cimt'l ; Imt J. U. aimI 
 l)i'l.. Wirt' strniij.'ly iulvisi'il tli.ii tlicy hIhuiIiI 
 li.ivt' nil mc'dunt laki'ii, to asci'itiiin tlif imioiiiitM 
 ri'upfctivt'ly <liu' tliiin, ami ^limilil !>ell tliu Vfs- 
 Ntl to tlic lii'st ailvaiitiif,'!!. 
 
 Th li: /■:. Wio; V. A. 1)., 14.'.. 
 
 47. ,liirlK(lkll()ii of Vice - Adinirall) Court 
 
 — Siilvaye a lien U])on jjoodrt sold-^WIu'ic tliu 
 
 V('«M'l saM'il was Inoiinlit iiilo ii poit in Nuw- 
 
 t'nuniUanil, ami tlit'ii sold ; lint a iioition ot' lii't' 
 
 niati'i'iuls wait lii'oiiglil li. Halifax, and tliuru 
 
 jn'oi'i'i'di'd against liy two of tim salvors who 
 
 liad not lii'fn jiiiid in Xt'M foiimlliind, 
 
 Jl'lil, that till' Court had full jurisdiction, 
 
 salvage constituting a lien upon tiie goods 
 
 saved. 
 
 TIk Florii, V. A, I)., 4s. 
 
 48. Jurisaivtioii ui' Vice-.idmiralty Court 
 
 No seaman who is em|iloyed for a voyage or 
 enuife'i'i''^'"' wliicli is to tcrniinate in the United 
 Kingdom can sue in a ("olonial Vice-Admiralty 
 Court for his wages, unless discharged as directed 
 by the (ieneral .Merchant .Seaman's Act. The 
 Admiridty Court has no jurisdiction in a suit to 
 recover seaman's wages, unless the sum claimed 
 amounts to at least fifty poinids sterling. 
 
 Dull. V. Skill Vt/ocity, James, .S'JO. 
 
 40. Jurisdiction of VIce-.idiniralt} Court 
 
 —Suit for penalties for breach of Revenue 
 
 L,.^^vs_The defendant and three others being 
 
 discovere<l in the illegal distilling of spirits, the 
 
 materials and apparatus used by them were 
 
 seized. Xo claim having been put in for them 
 
 they were condemned, and proceedings then 
 
 taken to recover the penalties inijiosed by the 
 
 Act. The defendant appeared under pnjtest, 
 
 denying the jurisdiction of the Court. 
 
 //lid, t'nat the Court had full juriadiotion in 
 
 the matter. 
 
 Qiifii V. Flint, Y. A. D., 280. 
 
 .50. Jurisdiction of Yice-Adniiraity Court 
 
 —Supreme Court issuing prohibition to — 
 
 Xhe lei'islation of tlie Dominion Parliament 
 
 (.31 Vic, c. 8, s. 156). givinj; the Vice-Admiralty 
 Court jurisdiction in cases for the collection of 
 penalties for illegal distilling, is ultra mrts, and 
 the Vice- Admiralty Court, as an inferior Court, 
 
 may be rent rained by ilic , "Supreme Court by wiit 
 of prohibition. 
 
 .ltt'i/-tii III rnl ii/<-'iiiiiii/ii V, Flint 1 1 lit ., 
 
 ;« u. & (i., 4.-i;(. 
 
 Oil ft/ijiinl to Ihi' Sii/inini Court o/ L'liiiinl/i, 
 III III, that NO much of Hei'. \M\ of ',U Vic, c. s 
 (Mominion Inland |{evi'nue Act, IS<I7), as glvcH 
 the ( 'om t of Viie-Adniiralty jurisdiition in casoH 
 for the collcrtjon of penalties for illegal distdl- 
 iiig, is iiitrr. rin i. The judgment of the .Supriiuf 
 Comt of Xova .Scotia ri'versed. 
 
 A/l'i/l/i III ml i{/' Ciniiiiln v. Flint it nl,^ 
 
 li:th Jiniiiiirii, ISS), Cas. Digest, ;t'J4 ; 
 4C. L. T., 117. 
 Si I siijirii, .//, .;,;, .;/", uml infra, ')'.i. 
 
 31. Master also part owner The fact of 
 
 a master being also a piii I oMiitr does not aliicl 
 
 his right to recover against the vessel for wum'H 
 
 due him. 
 
 TIf Aiii-it, V. A. l».,.-)4. 
 
 'ii. Master Autliorit) to bind owners- 
 
 I'laintitl'sued defendant for the price of a li.iml 
 of lieef sup))lied by him to the niaslur of defeml- 
 ant's vessel. The beef was shown lol)e necessary 
 for the vessel, but it a|)peared that defendant 
 had an agent at the place where it was pii.- 
 cured who might have been re((Uested by the 
 master to 8up])ly or procure the beef for liiiii. 
 
 Ill III, that in the absence of evidence to show 
 that the master had made such a reipiest to the 
 agent, or that he had ;-.]iecial authority to hind 
 the owner, plaintiff could not recovei. 
 I'ltiiiniH \:Croil>!/,'20 N. .S. K., (S R. & (i.), 44(1; 
 ! C. L. 'i'., 197. 
 
 53. Master - Dismissal of — Plaintiff, In 
 
 1S74, agreed with a number of Halifax mercliants 
 to subscribe !<4^HJ{) towards a steamship enter- 
 
 . prise, and assist in getting a suitable ship, pro- 
 vided he should be master. He was appointed 
 master, and the wages were fixed at .*1.2(W. 
 The company was incorporated in 1875, by Act 
 of the Dominion Parliament, and the plaiutitf 
 
 ' received stoirk to the amountof his contribution. 
 
 i After running for some time, it was found that 
 the enterprise was sinking money rajiidly, and 
 in 1870 f. Jiuw arrangement was entered into, liy 
 which the plaintiff was to supply the ship with 
 men, and provisions for the passengers and crew 
 and sail her as commander, for !?9(K) a iiiontb, 
 
 : afterwards increased to .S930. The ship had 
 
 ! been originally accustomed to remain at St. 
 Pierre forty-eight hours, but the time was afier- 
 
 : wards lengthened to sixty hours by the company, 
 yet the plauititf insisted on remaining only forty- 
 eight hours, against the express directions of tlic 
 
I -277 
 
 SHIPPlNt}. 
 
 127s 
 
 ('ciiii|iiiiiy H iiK<'iitH III St. I'ii'iii', and wiin ntlii'i- 
 \Ms(> (liMiilii'ilii'iit til the iigcntM, luiil ti'i'iiU'il tlii'iM 
 witli ^I'liNu iiiMolfiH'c, in i'iinHi'(|UL'nct' of wliiili lu' 
 WiH ilJNniiMML'il friini tlii! Hitrvicn of tlie t'onipiiny, 
 
 TluTc WiiH 11 viTiliit iif .><'_',(HH) foi' pliiiniitr. 
 
 //'/'/, that tliL- iliH)iiih<Niil waM jiiHtitiiililc ; lliiit 
 tlic plaint ill' wax not a part ownur iif tliu Mliip, 
 iiiiij I'lmlil not t'Xi'iciHc, inilopcniU'iitly <if tliu 
 ml poratiiin, any powtT wliatt/Vff uvit tiic piii|)- 
 I'lty lit' the rimipany, iiaving iki intiTt-'nt what- 
 I'vci' in tliu Nhip, Imt only in tlif Htoi'i< o| thu 
 company, uiid tiiu caite iniiNt tlii-ruforu lie con- 
 siiK'lt'il an thf oiilinary ^■a>^^.^. of a iiiaNlcr ilw- 
 iiiInsi'iI liy tin.' owiii'iM. 
 
 >ii' W. N'ouii),', ('. .1., (I i HI, III ill' I, III III, ihiit 
 vvlilli' tho pl.iintitr woiiM liavo had no it'iliLv-iM 
 Ii.kI iiu lifiii in i\w onliiiaiy position of ii sliip- 
 iii;i>lrr diHinisMed by a majority of tiic owiii'is, 
 his position was tiiat of u part owner, and iii' 
 Mii» riilitlfil to I'oiiipi'iisation. 
 
 Iliiililjhril V, Amjlo-Fri ni-k '■>lniiiiHlil/i Co,, 
 
 •J n. & (;,, '>4 ; 
 1 ('. L. '!'., .Vi4. 
 
 Dii fi/i/iiiit h) till .Sii/ii-i iin Ciiitii o/ Cdiitiiln, 
 Hi III, l.st, that I'VL'ii if the di.siiiissial had iicuii 
 wmiij^fni, thu daniagu.s were I'xce.sxivc. and the 
 ca>e Nhould go liaek for a new trial on this 
 ground. LJnd, /« /■ Uitehie, (.'. ,J., and Kouinier 
 iind (iwynne, .J.)., that the faet of the master 
 lii'iiig a sliareholder in the eor]ioration owning 
 the vessel, had no hearing on the ease, and that 
 It wiis proper to grant a new trial to have thu 
 nmstioii, as to wiielher the plaintitl'so acted as 
 til j\istify his dismissal hy liie owners, stiliniitted 
 to a jury, or a Judge, if ease he tried without 
 a jury. 
 
 Ci'uilil/onl V. Aiii/lo-FniK'h S, .S'. Co., 
 
 9 s. c. R.. ms ; 
 
 2C. L. T.,'2i)U. 
 
 U. Master— Dismissal of master or ship 
 
 —Insolvency of the owners — The ship .Jean 
 •Anderson, owned at Cliarlottetown, P. E. I., 
 was sold by the agent of the owners at Liver- 
 p'l'il, Kiigland, to the claimant, who agreed to 
 g'l out to Charlottetown,' take charge of the 
 vessel as master and bring her to England, for a 
 I'titain monthly rate of wages. .He accordingly 
 cunie out, and having been put in ciiarge, pro- 
 ceeded in her to Pietou, N. S., where, on the 
 "til October, 1878, she was attaclied by the 
 official assignee, the owners having gone into 
 iusdiveiioy. The claimant remained on board, 
 not being recognized by the assignee, yet not 
 lioiiig dismissed until the '22nd April following. 
 On bringing suit for his wages up to that date, 
 it WHS contended that the insolvency of the 
 owners had ip^o facto put an end to the fimc- 
 
 tious of the master, ind was ri|Uivaleiit to a 
 dismissal. 
 
 //«/»/, that tile master having bei'U in legal jios- 
 MeHMioti of the ithip lioth as inaHter and )>urchaser, 
 and, not having lieeii dismissed liy the assignee, 
 was entilled to his Wages to tile full extent of 
 his claim, with costN of Huit, 
 
 '/% Jkiii Aiiitn-^oii, \. A. I).. '-'H. 
 
 5.1. Master Immoralit} orintemiieraiu-e 
 
 of Master not alone siilliiient ground for dis- 
 missal. 
 
 Thi III /la M nihil, \. A. I)., •_••_••_', 
 
 .10. Master of vessi>i (letaiiiint; one ol' tlie 
 
 crew -Action for fal.se imprisonment 'I'lie 
 master of a steamer lying in Halifax harbor, 
 iiaviiig cause to suspe<'t plaint itl' of steiliiig, and 
 having |irociiied warrants to lie issued against 
 him, confined the jiliiintill' while the search was 
 being made, in order to prevent him from eom- 
 municating with the rest of tlii' ciew. .\ii 
 action for false imprisonment waslironght. 
 
 Ilflil, that the master had acted within tlie 
 scope of his authority. 
 
 l.iiih V. Ti-oti, 4 K. .'c (;., l'_'i». 
 
 57. Master-Sale of vessel by— 
 
 On appcnl la ihi. I'riri/ Coniiril, 
 Hild, that the muster of a vessel has no jjower 
 to sell her so as to atl'cct tlie insurers, except un- 
 der circumstances of stringent necessity ; such 
 circumstances as, after .sutlicicnt examination of 
 her condition, after every exertion in his power, 
 within the means at his disposal, to extricate 
 her from peril or to rai^c funds for the repair, 
 leave him no alternative but to sell her as she is. 
 Cuhijjuid Marina Intur uirt Cu. v. liartiaux, 
 L. R., 6 1'. C, 310; 
 82 L. T., .-JlO. 
 
 .58. Master Sale of wrecked vessel by— 
 
 j Moral necessity is sutlicient to justify a master 
 in selling a sliipwrecked vessel, and the exist- 
 
 j ence of such necessity is a (]uestion of fact for 
 the jury. 
 
 It is not absolutely necessary in such a case 
 that there should be a survey of the vessel be- 
 fore the sale, nor that such sale should be by 
 auction, though both, when they can be had, are 
 
 ' prudent and proper steps. 
 
 \ The title to a shipwrecked vessel can be trans- 
 ferred without bill of sale. 
 
 Oranije ct al. v. McKay, 1 Old,, 444. 
 
 59. ^Master's wages and disbursements- 
 
 The plaintiff claimed a sum for wages up to the 
 term of his dismissal, and a further sum under 
 
1279 
 
 SHIPPING. 
 
 12h0 
 
 a special contract, whicli he alleyed had heen 
 made 111)011 Ids entering into tlie service of 
 defendant, but of ivhicli lie failed to produce any 
 evidence. The defendant paid tlie Hrsi sum into 
 Court, having tirst tendered it <.•> plaintiff. 
 
 Held, thiit there should be judgment for de 
 feiidant, with costs. 
 
 <^t(ai:r< , as to the jurisdiction of the Court to 
 
 in(|uire into the special contract if the plaintiH' 
 
 had In-ought forward any evidence in support of 
 
 it, tiie contract, if any, having.; been made in 
 
 Kn"land. 
 
 The Pe&ris^, Y. A. 1)., 'HiT^. 
 
 60. Master-Wases of -The master of a 
 
 vessel having brougiit an action against the 
 owners, claiming a large lialance due him for 
 disbursements and wages, they pleaded inaccur- 
 acy in the charges, fraud and misnianagement of 
 the vessel, but produced no evidence in support 
 of their charges against him. The master's 
 accounts l)eing very complicated were referred 
 by the Court to competent persons with the 
 concurrence of lioth parties to the suit, and the 
 referees after a thorough examination reported 
 in favor of the master to the extent of two-thirds 
 of his claim. To this report the owners tiled nu- 
 merous objections, alleging fraud, etc., as before. 
 H(l(l, that in the absence of direct proof of 
 collusion or fraud on the part of the master 
 the report must be contirined. Where in a 
 (piestion of accounts and disburjements a 
 tliorougldy competent person has been selected 
 as referee with the approval of both parties, 
 and he reports thereon after a full exami- 
 nation, those who would take objections to such 
 a report are bound to prove their oljjections 
 by clear and satisfactory evidence, for it will 
 not l)e overruled unless there be an overpower- 
 ing case made against it which ohall satisfy the 
 mind of the Court that it ought not to be main- 
 tained. 
 
 The Jamt'< Fraser, \. A. D., 159. 
 
 61. Master— Wages of -The master of 
 
 this vessel, who was also a part owner, instituted 
 proceedings in the Court of Vice • Admiralty 
 against the ship, to recover a balance of wages 
 due him. 
 
 Held, that the Court could entertain his 
 claim, and that the fact of his being a part 
 owner did not affect his right to recover. 
 
 The plaintiff had accepted a promissory note 
 from three of his co-owners for the amount he 
 now claimed, the note never having been paid. 
 
 Held, that this did not take away his lien 
 upon the ship, although sold to and paid for by 
 a third party in ignorance of the debt. 
 
 The Aura, Y. A. D., 54. 
 
 62. Master's wages -Promos ent riaiiiifd 
 
 a balance due for wages and disbursciiient.s, tn 
 which the defeiulant.-* pleaded a set-oti' for nioiiev 
 dejiosited liy promovent with agents of tlie 
 vessel, which was lost to the owners tlirougli 
 the absccmding of one of the agents and tiiuii- 
 failure. There was no charge against him of 
 corrupt motive or improper dealing, but tiio 
 owners sought to make him responsible for tlu 
 default of the agents, who had theretofore lietii 
 employed for the ship. 
 
 //'-/(/, that the deposit of the money while in 
 port with the known agents of his emplnyci', 
 was not only justifiable, but what the master, 
 ill common prudence, was bound co do, and tiiat 
 the judgment shouhl lie for him with costs. 
 The cases as to the forfeiture of wages and tlie 
 liability of masters reviewed. 
 
 Th< Alixaiidtr Williams, Y. A. I)., •JIT, 
 
 63. blaster's wages-Thc master of this 
 
 vessel brought action for an alleged balance due 
 him for wages and disbursements. It ajipeareil 
 
 ' from the evidence, though it was not alleged in 
 the pleadings, that he had an interest in the 
 vessel as part owner. While in conimand, he 
 had been guilty of gross immorality and iiitcin- 
 
 ' perance, evidence of which was produced at the 
 
 . hearing on the part of the defendants, but tlie 
 immediate cause of his dismissal was dissatis- 
 faction as to his dealings witii the vessel's earn- 
 ings. The matter finally resolved itself into a 
 mere iiuestion of account, and, upon an adjiist- 
 
 ■ nient of accounts, it was held that judgment 
 
 i should be for the ilefendants. 
 
 ' Semhh, that the plaintiff's dismissal couM 
 
 '1 not have been justified on the ground merely "f 
 immorality or in :eniperance. 
 
 The IMIa Miulije, Y. A. D., •-'-'•.'. 
 
 64. Necessaries— Arrest of vessel for- 
 
 The Emma, a small vessel owned in New Unin 
 ' swick, being much out of repair wlien in Nova 
 Scotia, and her captain having neither iiiniiey 
 , nor credit, the plaintiff agreed to furnisli sup- 
 plies, which were accepted by the workmen in 
 payment of their wages, and the reiiuired repairs 
 I were thus effected. 
 
 j Subsequently, not having Ijeeii paid, he ai- 
 ; rested the vessel for necessaries supiilied, w 
 owner being domiciled within the I'roviiice. 
 /feld, that he was entitled to recover tlie 
 
 amount of his claim. 
 
 The Emma, Y. A. 1).,2>S1' 
 
 65. Owner -A party taking a register of 
 
 a new vessel in his own name as owner for tiie 
 purpose of securing a debt is not lialde for sup- 
 
1281 
 
 SHIPPING. 
 
 1282 
 
 (.lies fiii-iiislied to the vessel on the credit of the 
 lit'iittiuiiil owner and while in jiis possession. 
 
 Ii'u.s.se/i V. Marshall, Jiuiies, 330. 
 
 m. Ownership-Evidence of-Xecessarles 
 
 -U'iiere tlie managing owner and the master of 
 a .sliip order necessaiies for tiie ship on credit, 
 tlif owners are lial)le. I'lie certificate of regis- 
 try is presumptive evidence of the ownersiiip. 
 (Set' 4th R. .S., cap. 06, sec. 31.) 
 
 Smith V. Fnlfoit ^/ nl., 2 R. & C, 22ri. 
 
 sails when tiiey were puichased, but stated that 
 he had settled with MuR. for them aliout a year 
 after, although he had never authorized McR. to 
 procure them. Defendant called no witnesses, 
 and the jury found for liiin. 
 
 fff/il, that there was no ground for disturliing 
 tlieir verdict. 
 
 /i/nrk ff nl. V. Hallilinrfoii, W N. S. I)., 'JOT. 
 
 «4. Owners-Liability for necessaries— 
 
 Necessaries supplied to a ves.sel fitting for sea on 
 the order of one of several pait owners, 
 
 H<l<l, that the other owners are liable, unless 
 they show that an e.xclusive credit was given to 
 the part owner ordering the goods. 
 
 Action against seven defendants as part own- 
 eis. Verdict against two only sustained under 
 i'riiot. Act, s. 40, tile evidence of ownership of 
 tlie leniaining defendants being insufficient to 
 satisfy the jury. 
 
 Cohl, V. Turutrtt at., James, ;{32. 
 
 68. Owners-Liability of-In the absence 
 
 I'f legislative enactments of a restraining char- 
 HCter, a railway or steamboat company may 
 impiise such terms upf)n the pul)lic as to exempt 
 tiie (.oinpany from responsibility f(jr injury, 
 lidwever caused, including, tlierefore, gross neg- 
 lii'eiioe, and even fraud or dishonesty, on the 
 |iii't of their servants. . 
 
 Dndioii V. The Grand Trunk H'y Co., 
 
 •2N. S. I)., 405. 
 
 ««. Owner— Fart owner-Where a part 
 
 I'wiier of a vessel sold iiis 8hare to the other 
 rk'iit owner, l)ut no liill of sale was executed, 
 ii"i was any entry of the transfer made on the 
 iiL'i.^ter, 
 
 //'/'/, ill an action brought against liini for 
 
 l'*s and non-delivery of iion shipped on boani 
 
 tlie vessel after such sale, that he was not lialile. 
 
 Foir/ir V. /ioriten, ("ochran, 7J). 
 
 tO. Owner-Part owner, liability of, for 
 
 goods supplied vessel— Action for the cost of a 
 •tt of sails furnisiicd a vessel of which defendant 
 «iis part owner, and one McR., master. Plain- 
 'itl> had a private account with McR., and in 
 liitir leilger the charge for the sails appeared in 
 'liiit account. They had no separate account 
 i'amist tlie vessel, and it seemed that, on McR's 
 wnning insolvent some time subsequently, they 
 '*1 received a dividend upon his whole indebted- 
 '**8, including the charge for the sails. I'lain- 
 'ilfs called defendant as a witness, and on exam- 
 *'i'm he denied that the vessel required the 
 41 
 
 71. Keplevin of vessel-U. S. and B. 
 
 and F. S. procured supplies from parties in .St. 
 John, N. H., and Halifax, \. S.. to be used in 
 the construction of a vessel wiiicli after her com- 
 pletion was registered in the name of 15. S. To 
 tlie parties in (St. John, \V. .S., and to those in 
 Halifax, H. ,S., who.se liame alone appeared upon 
 the registry, was representeil as owner. Actions 
 were brought by the St. Jolin creditor.s against 
 \V. .S. for the goods supplied on his credit, and 
 judgments obtained and executions issued, un- 
 der which the vessel was levied upon and sold 
 as the property of \V. S. While the vessel was 
 I in the custody of the Sheriff, and prior to the 
 , sale, B. S. executed a bill of sale in the form 
 required by the Act to plaintiff, one of the 
 Halifax creditors, who immediately had the 
 same registered and received a formal delivery 
 of the vessel from B. S. 'i'he Sheriff sold all 
 tiie interest of W. .S. in the vessel to defendant 
 and delivered a bill of sale of the same, which 
 was not recorded. Plaintiff thereupon brought 
 I an action of replevin, which came on for trial, 
 [ but, in consequence of tlie lengtii of the cause 
 and insufficient time, could not be concluded. 
 At the suggestion of the presiding Judge a rule 
 was entered into by which it was agreed that a 
 verdict should pass for plaintiff", with power to 
 the Court to determine and draw the same in- 
 ferences from the evidence tliat a jury might 
 do, and either enter a verdict for plaintiff or 
 defendant or order a non-suit, as they miglit 
 think fit, and also with power to determine the 
 eiiuities, if any, and to order a sale of the vessel 
 and payment of the proceeds into Court to abide 
 ; the judgment. 
 
 Hi/il, fiist, /iir Sir \V. Young, C. J., Ues- 
 Barres and Dodd. J J. (Johnstone, K. J., tloiiht- 
 [in;/, and Wilkins, J., flisseutimj), that B. S., 
 lieing the registered owner, was not precluded 
 by the levy of executions against \V. S. from 
 giving the bill of sale to the plaintiff and trans- 
 ferring to the latter a possession sufficient to 
 support replevin. Also, under the authority of 
 : Lam- V. Dormy, 1 Old., .'>75, that replevin 
 would lie. 
 
 Second, j^tr Sir W. Young, C. J., Johnstcme, 
 K. J., and DesBarres, J., that the registry of 
 the vessel being only prima facie, evidence of 
 
1283 
 
 SHIPPING. 
 
 1284 
 
 title, and there being evidence of fiiiud iind j the voyage with (ill possihle ilenimti.li. i'liu 
 follusion between \V. S. and 15. S. in regard to owners of tlie ^ngar, however, sold it in Hiditax, 
 the registry, in order to defeat the creditors of and then the shipowner refused or neglectid to 
 the former, that under the equitable powers con- proceed with the voyage, although notified l,y 
 ferred by the rule the parties affected by the the owners of the iron to do so, and the liittii' 
 fraud should be restored to their just relations | were compelled to forward it toils desliiiiition 
 to the vessel, and the St. John and Halifix , themselves. Afterseltlemcnt of the salvage suit, 
 creditors be lulnjitted to a ratable paiUcijjation the shipowner tiled a claim against the owiiera 
 in the proceeds. of the cargo for freight uniler the ciiarter-iiiuty, 
 
 Ar Wilkins, J., thai to draw inferences of and a general average contribution towards tiie 
 fraud, unless they are irresistible in their char- | damages sustained by the vessel previous to tlio 
 acter, for the purpose of annulling a registered abandonment. 
 
 /(Wma/rtfie title to a British ship, is beyond any Hfid, as to the freight on the authority ot 
 judicial competency. ' The, Cathhtu, '2 Asp. Mar. Cas., 3G7, that by the 
 
 Ptr Dodd, J., tliat frautl was not sutticiently ■ abandonment the contract of affreightment \v;is 
 
 proved to avoid the prima J'avk title conferred abrogated, and conse(juently no frcigiit wiis 
 
 by the registry. recoverable. As to the claim for general iivci. 
 
 (Imut V. Jiobertsou, 2 N. S. 1)., '247. age, which was opposed (m two grounds (1), tliiU 
 
 the Court had no jurisdiction ('2), that the sliip- 
 „ n . ni..i„4iir>o ..« owner's lien having been lost by the abaii'ldii- 
 
 12. Revenue-Fraud on-Plalntirs ac- ^^^ J^^^^ ^^^ ^^^^^^^^ 
 
 tion was for the value of lumber sh.pped unde - ^^^^^ ^^^ ^.^^^^^^ ^^^^^^ ^^.^^.^^.^^^ ^^^ 
 
 au agree„.ent that defendant shoula carry I an, . ^.^^^ ^^^ general average 
 
 sell it, as aaent for p aintifif, for cash or bdls of : """"- i .■,.„• ^i , 
 
 sell 11, afe 1. , , , „.,, 1 .,„. „„ii when it arose incidentally in the progress ol a 
 
 exchance on France. Defendant coulil not sell, , . , ,, ,^ \, i ■ • r .■ 
 
 e-xciuuifec I , ^, 1 1 r„,. cause over which the Court had jurisdiction. 
 
 whollv for cash and exchanged the lumber for '"""' » i i ■ i i 
 
 wiiujij- lu. b , 1 •» .Second, that although the master had nuleeil 
 
 tobacco, which, on its return, was smuggled into , , ' i . ;. „,„„ ,i„„o „nU,. 
 
 ' . ' . ^ .^„^ ,p. ^ abandoned the vessel, yet as it was done solely 
 
 ixirt and seized bv the revenue oiticers. iiie ..... , , , • 
 
 port ana seizeii oy ine leveiiue purpose of saving life, and on her lieuig 
 
 County Court Judge found on the evidence that , ' , *^. '^ . ., i i .„; i „ . 
 
 ' L • . f *i f 1 ai>„„f f^ ho 1 brought into port the owner had received pos- 
 
 plaintiff was cognizant of the fraud about to be . , , , , r .u r- ,.. t „^,.o..„i lo,.. 
 
 l^ b session of her by order of the Court several days 
 
 committed on the revenue, and ga'-e judgment,' ="='"' •' . ,. •» ,. „ i 
 
 ^ , , /, ,1 * before the cargo was restoretl to its owners, iU;il 
 
 for defendant, which was reversed by the Court, /"^'""^ ""^ ^ .*> u „ .i „ cui,..,. ini 
 
 ., ' . , , , , ^ . „i„: .;«■.„ 1 as the possession of the vessel by the salvoia liait 
 
 the evidence ot the defendant - ^^ 1^-"^ ^^ ^ „„, ^ee^ ,^^^^^^^^ 
 
 participation ,„ the fraud bemg wholly uncor- . ^^^^ .^^ ^.^ ^^^^^ ^^^^ ^^^^^^ ,^^^^ ^^^^.^_, ,,^^,^ 
 
 roborated and contradicted by plaintiff. , ^^^ ^^ ^^^^ ^^^^^,^ .^^^ ^„ ^^ 
 
 Blcthen V. Gardner, 2 R. 5. G.. 4n . | ^^ ^^J^^.^^ ^.^^^ ^^ ^^.^ ^.^^^ ^^^^^ ^,^^ ^,_^_,^,^ ^,„, 
 
 " ■ ■ ■' ■ therefore his claim for general average sliouM 
 
 73. 
 
 be allowed. 
 
 The Annk M. Allen, 3 C. L. T., lUS. 
 
 Revenue laws— Violation of- 
 
 Ste REYEME. 
 
 15. Salvage, a Hen upon the propcrt) 
 
 I saved— The schooner Thistle found the ship 
 74. Salvage— Abandonment of vessel- ; ^,^,^5^ water-logged and abandoned in the (iull 
 Non-completion of voyage— Right to freight , ^^ j^^. Lf^^,.e„ee, and after much meritorious 
 and general average — The Annie M. Allen 1 ^^^^.^^j^^^ ^^j,^^^j^,jj^ j,gj. ju^p (^ po^ in New foiui.i- 
 on a voyage, from Cuba to New York, laden with j j^^^^^j^ y^heve she was sold, and realized the sum 
 sugar and old iron, encountered heavy gales, j ^^ ^g.^ ^ portion of her materials was broiighi 
 and after every exertion to save her, in which i ^^ jij^uf^x, and was there proceeded against liv 
 
 two of the salvors. 
 
 she sustained great damage, was abandoned 
 by her master and crew. Subseiiuently, a 
 steamer fell in with her and brought her into 
 the port of Halifax. On giving security for the 
 payment of such salvage, general average, etc., 
 08 might be decreed, the owner of the ve.' sel 
 was allowed to resume possession, and some days 
 afterwards the owners of the cargo obtained their 
 property on the same terms. The owner of the 
 vessel notified the owners of the cargo that he 
 intended to repair her forthwith, and complete 
 
 Held, that the Court had jurisdiction on the 
 ground that salvage constitutes a lien on the 
 goods saved, and the portions coming to the 
 salvors were therefore set-off to them ami 
 directed to be paid out of the proceeds of the 
 goodf brought to Halifax. 
 
 TheFlora,\.A.D;i^ 
 
 16. Salvage — Appraisement of (lerelic| j 
 
 set aside— An appraisement of a derelict r " 
 
1285 
 
 SHIPPING. 
 
 128G 
 
 wiis i)l)jec'tf(l to on the younds : Ist, that the I 
 ii|)piiiisers lm<l been chosen by the Proctor for 
 the .sulvors ; 'Jnd, ihiit tlie writ had not been 
 iliiected to tlie Miirslml or to CoinmisisionerH, 
 lull to tlie appraisers themselves. 
 
 HtUl, that on these gronnds the appraisement 
 could not be sustained. 
 
 Tht CumhridijK, Y. A. D., 03. 
 
 T7. Snlvaj^e by nian-ofiWar-One of Her 
 
 Miije^ity's men-of-war rendered salvage services 
 to ii derelict ship, but was not allowed by the ■ 
 government autliorities to make any claim 
 therefor. 
 
 The Htrmau, Y. A. D., Ill, ' 
 Sit infra, 70 and U'J. 
 
 18. Salvage by passengers- This vessel, 
 
 wiiile on a voyage from 8t. Pierre to Halifax, j 
 stranded on Sable Island. Only a fresh breeze ', 
 was lilowing at the time and she received no ' 
 serious injury, bnt her situation was one of con- 
 sidcrable danger i* not speedily rescued. Under ' 
 the master's direction the crew and passengers 
 killed with all their clothes, provisions, etc, 
 Ijiit the vessel was not stripped, and the master 
 iltiiied any intention of abandoning lier. They 
 .ill left her for the night, and the following 
 iiiiiiniiig the six passengers, taking a boat from 
 the Island, boarded the vessel, and without 
 much difficulty and at no personal risk succeeded 
 ill tioating her off ; when the master and crew, 
 joining her in their own boat, they completed 
 the voyage in safety. The passengers having 
 taken proceedings to recover salvage as in case 
 't derelict, the owner of the vessel paid the sum 
 I'l i.'40 into Court, which they refused. There 
 «iis much conflicting testimony upon the points : 
 first, whether tlie master really intended to 
 aliaiiilcin her or not ; and second, the merit of 
 'lie salvage services renderetl. 
 
 H'ld, that the tender of £40 was sufhcient, 
 lilt that, in view of the conflict of evidence, the 
 l«'ties should pay their own costs. 
 
 The SttUa Marie, Y. A. U., 16. 
 
 9. Salvage by troopship — One of Her 
 
 ^lajesty's troopships having picked up a dere- 
 lirt harijue with a valuable cargo and brought 
 kw into port, was not allowed by the Admiralty 
 Mthorities to recejve any allowance by way of 
 ''ilvage. 
 Ilirections given by the Court as to the proce- 
 '"re in cases of derelict in order to ascertain the 
 proportion of charges and expenses to be con- 
 'riljuted by the vessel and c.irgo respectively. 
 Thej3hn,\. A. D., 129. 
 
 80. Salvage — Conduct of salvors- The 
 
 Rowena, a brigantine owned in Prince Kdward 
 Island, after passing through the Strait of Canso, 
 went aground on the east point of the Island, at 
 low tide. After remaining in that position all 
 night, and having pounded somewhat when the 
 tide rose, but not so as to cause any serious 
 ilanger, the Captain anil crew, in the morning. 
 Went ashore to procui'e assistance. A part of 
 the crew returned to her during the day, but 
 did not remain <m board. During tiie night the 
 vessel floated oft', and the following morning was 
 fallen in with Viy the Reff)rm, who sent a crew 
 on Ijoard and lironght her to Halifax as a dere- 
 lict. The Captain of the Kowena, having pro- 
 cured the assistance he sought, returned to where 
 he had left her, after both vessels had gone out 
 of sight. It was contended on the part of the 
 respondents that the Rowena was not a ilerelict ; 
 that the salvors had acted improperly in taking 
 the vessel off to Halifax, when they knew she 
 belonged to tlie Island ; and tliat they had for- 
 feited all claim to salvage by embezzling some of 
 the vessel's property. 
 
 Hdd, that the Kowena waa not a derelict, but 
 only a case of ordinary salvage ; that there was 
 not sufficient proof of the alleged embezzlement ; 
 but that the salvors had not acted rightly in 
 takinj;- the vessel so far from her home ; and 
 therefore only !*5(K) was awarded on an appraised 
 value of $5,<;K)0. 
 
 The Hoirtna, Y. A. D., 255. 
 
 81. Salvage -Derelict— A Ashing schooner 
 
 while returning from the grounds with a full 
 cargo, fell in with a derelict, and taking her in 
 tow brought her into port, remaining in posses- 
 sion until relieved by an officer of the Court. 
 A delay of twelve days wap thus occasioned on 
 her home voyage. 
 
 H'td, that one third the value of derelict and 
 cargo should be awarded as salvage. 
 
 The Tidier, Y. A. D., 1(J6. 
 
 82. Salvage — Derelict — An abandoned 
 
 vessel was discovered by the keeper of a light- 
 house who hailed a steam-tug and directed her 
 to the vessel. The steam-tug then brought her 
 into port. The value of vessel and cargo was 
 agreed upon at $2,250. 
 
 Held, that the steam-tug should receive jS450, 
 and the lighthouse keeper $25. 
 
 TheAfton, Y. A. D., 136. 
 
 83. Salvage -Derelict— A schooner found 
 
 by fishermen floating on lier beam ends and en- 
 tirely deserted, was, after considerable exertion 
 requiring the united efforts of thirty-two men, 
 successfully brought into harbor. 
 
1287 
 
 SHIPPING. 
 
 12S8 
 
 The sale of wliip and oarg" luuli/ed S!t.")4.(Mt. 
 
 H<:ld, tluit tlic milvoiH shoultl lie paid out of 
 that sum, J?!.').'! for thi'ir lahor, and !?» a piece aa 
 milvugc, making •'?44l in all. 
 
 Th> S. V. Cooiinit, V. A. I)., 10!t. 
 
 S4. Salvage - Derelict - No claimant - 
 
 \N iieie no owner appeareil to claim goods found 
 derelict and their value was not great, 
 
 H</if, that the salvois should have the full 
 amount they realized after payment of necessary 
 
 Tiro lidlisn/CoHoti, V. A. 1)., 135. 
 
 83. Salvage -Derelict -One-half of the 
 
 net proceeds of sale awardeil to salvors where 
 
 no appearance or claim was entered on behalf of 
 
 the ow'ners. 
 
 Thi Arrhifec/, Y. A. D., 110. 
 
 86. Salvage-Derelict, order of proceed- 
 ings against — The salvors of a derelict ship 
 should in the first instance give notice to the 
 Proctor for the Admiralty, who will forthwith 
 extract a warrant, i^fter the issue of the dere- j 
 lict warrant the salvors should move for leave j 
 to intervene. If the case be one of only trivial 
 iuiportance, the Court will then direct the tiling ; 
 of afiidavits in proof of claims, &c. In cases of 
 greater moment, it will sanction an act on 
 petition, with the usual pleadings and proof 
 under the Rules of 1859 ; and when there are 
 claims represented by several Proctors, or sub- 
 sefiuent to each other, a consolidation will be 
 ordered, as in other cases of salvage. 
 
 If a private warrant be extracted in the interim 
 between giving notice to tlie Admiralty Proctor 
 and his taking proceedings, it will be disallowed 
 
 on taxation. 
 
 The Smuh, Y. A. 1)., 102. 
 
 fuKcil to l)iiy the amount awarded, tliercliy nml 
 ering a sale necessary, and it clearly iippi iiiuy 
 1 that a sum far less than the appraisement «iu;lil 
 be realized at such sale, anil that tliercforij tlic 
 award would be excessive and unjust, tin- ('(lurt 
 set aside its judgment and ordered a sale to lif 
 had. At the sale the vessel and cargo rcidi/i-il 
 only ii4,12H, instead of 8!t,00(J, as had het'ii 
 appraised. 
 
 HJil, that the decree should he le-opeiicd, 
 and that the Court should take the S!4,1'J,S aii4 
 not the 89,000 as tlie basis of its award of sil 
 vage, the same proportion being awardeil to tlic 
 salvors as before, with their taxable costs. Kat ■ 
 of allowances for charges determined. Wliure iiii 
 appraisement is ordered by the Court ai the 
 instance of the salvors, with a view to a decree, 
 and has been duly made by reliable parties, the 
 Court will not allow it to be (luestioned. 
 
 Tfi, S. li. HiiiiK, Y. A. 1).,'.''.'H. 
 
 8J. Salvage-Derelict -Re-openIng a de- 
 
 cree— The .S. B. Hume having been picked up 
 derelict by the («. P. Sherwood was, after much 
 risk and arduous exertion, brought into port. 
 The values of vessel and cargo were appraised 
 by competent persons, in whose estimate the 
 Proctors f<ir both salvors and owners acquiesced 
 at .*9,(»iX.t, and the service having been one of a 
 highlj meritorious character, one half, viz., 
 84,500, was .warded as salvage. Subseciuently 
 the Proctors for the owners of the vessel ob- 
 tained a rule to set aside the judgment and 
 awavd of salvage on the ground that their 
 acquiescence in the appraisement had been given 
 under a misapprehension of the facts and of the 
 purpose to which it was to have been applied. 
 The appraisement had not been made at the 
 instance of the Court. The owners having re- 
 
 88. Salvage - Derelict — The schooner 
 
 Finance, while on a fishing voyage, fell in with 
 the schooner Sylph, the wind blowing lieiivily 
 ai\d the sea being very rough. The latter liiul 
 both masts gone, her rigging on her deck, ami 
 was lying helpless in the trough of the sea. In 
 response to signals of distress, the Finance lay 
 to, and, at great risk, took otl' the captain, crew 
 and passengers of the Sylpli, with all their 
 effects, and the schooner's papers, chronometers, 
 flags, charts, etc. Tl'.e captain had no iuteiitiwi 
 of returning to the vessel. The wind being tot. 
 high to do anything then, the Finance stood In 
 until it had abated, and then taking the Sylpli in 
 tow, brought her into .Shelburne Harbor, a ilis 
 tance of 90 miles. 
 
 Hrlil, that the Sylph was practically derelict, 
 and the value of vessel and cargo having lieen 
 appraised in Shelburne at 81,800, that the kiI 
 vors should receive one-half that sum, viz.,8» 
 The Sj///);i,'2C. L. T.,Wi:. 
 
 89. Salvage-Derellct-The ship Scots- 
 wood, meeting with tempestuous weather, !«■ 
 came water-logged and completely disahle.l, lli> 
 provisions, compasses and charts being wasiit'l 
 away. In this condition she was found by tlit 
 J. \V. Brown, a fishing schooner, which, ni it 
 sponse to signals of distress, came aloiigsiile 
 and took off the captain and crew of the shiii. 
 putting nine of her own men on hoard iu tlieir 
 place. The captain and crew of the ship nevd i 
 attempted to rejoin her again, luit reinaiiieiH 
 board the schooner until port was reached. Uif 
 heavy weather still continuing, the sehooiierwa.-l 
 unable to manage the ship, and the foUoMiugl 
 day, on another schooner, the Laura, comiuSI 
 
12S9 
 
 SHIPPING. 
 
 li>!>0 
 
 near they hailed one another, and after conHulta- 
 tidli, it was decided tiiat each seiiooner NJiould 
 sfiiil seven men on board tiie Hhip and that then 
 Imth should take lier in tow. After great 
 exertion on the part of lioth crews, tiieMliip was 
 nil the next day Itroiiglit into port, The evi- 
 dence was not conclusive as to the intention of 
 the iimster of tlie Scotswood to finally abandon 
 her, l>ut tiie salvage services rendered being 
 hi|i.'iily nieritoi-ious, this wa.s not considered a 
 |i(]int of nuieh importance. 
 
 Hi Id, that two-fiftiis of the appraised value of 
 siii)) iuid cargo should be awarrled as salvage, to 
 lieilivided e'jually lietween the two scliooners, 
 the owners of tlie scliooners to receive onedialf 
 iif tlie amount falling to each. 
 
 Tlie cases reviewed a.s to the rate of salvage 
 ill enses of derelict and the vitiating of insur- 
 .ince by deviation to save property. 
 
 Thi'. Srofswond, Y. A. 1)., •->"). 
 
 90. Salvage — Derelict — The ship was 
 
 iiiunil derelict by the Mail Steamship Abyssinia, 
 mil the third officer, with fifteen of the steamer's 
 iRW, after two day- cvtrenie exertion and con- 
 siileralile personal ri.<k, succeeded in bringing 
 her sately into the port of Halifax. 
 
 Aiijiraised value of ship and cargo .SlOl,!);^!, 
 S'!0,(KMI awarded as salvage. 
 
 Thf. i:. h'ohiiisoii, Y. A. 1)., l(jS. 
 
 91. Salvage — Derelict — The steamer 
 
 Najiles, with a valuable cargo bound from Pliila- 
 'kiiiiiia to Liverpool, fell in with the Ida Barton 
 lerelict, abc it 3'20 miles from Halifax, and towed 
 her til that i>ort in forty-eight hours, breaking 
 iiiilsiMiiliiig several hawsers in so doing. There 
 was no special merit in the services rendered. , 
 
 fifid, that the salvors should reoeive one half | 
 if tlie appraised value of ship and cargo, all ! 
 msts anil charges to be deducted from the other 
 wlf, and that the owners of the steamer should 
 !iike line-half of the salvage awarded. The rule 
 
 ■ til salvage on derelict stated and cases re- 
 viewed. 
 
 The Ida Barton, Y. A. 1)., '240. 
 
 9'i. Salvage — Derelict — Re-opening a 
 
 decree— The steamer Zealand, bound from Ant- 
 •eip to I'hiladelphia, fell in with the Royal 
 Arch abandoned, and in twenty hours, with but 
 little ditticulty, towed her into Halifa :. The 
 hihtu] was valued at S27.'>,0()0 for vessel and 
 atp anil the Royal Arch at !58,3(K». 
 
 Hd,l, that .^-2,800 should be awarded. Sub- 
 'P|iieiitly it was disco ered that the appraise- 
 "ifiu iiad been misunderutood, and that it should 
 nve been construed so as to make the total 
 >*ie of tiie Royal Arch only .*!7,r)00. , 
 
 Held, that although the counsel for tiio 
 Royal Arch had acquiesced in the appraisement 
 and decree until the error was discovered, yet 
 that they were not shut out from ajiplylng for 
 relief — that the decree should be re-opened and 
 award made upon the basis of •'?7,")IH), the same 
 proportion being allotted to the salvors. 
 
 Reoent cases upon the i|uestion of the re- 
 opening of dec 'ees cited. 
 
 The exercise of authority to ic-open a decree 
 shoidd be used with the greatest caution. The 
 limit proposed is this, to make such an alteration 
 of an error arising from defect of knowledge or 
 information upon a particular point, as the jus- 
 tiee of the case reijuires. It must lie an en or 
 instantly noticed and lirought to the attention 
 of the Court with the utmost diligence. 
 
 The lioyal Arch, Y. A. D., '200. 
 
 93. Salvage— Derelict -Elements to be 
 
 considered in computing salvage — The \V, <;. 
 Putnam, bound from tjuebec to Marseilles, was 
 abandoned off the coast of Cape Breton, being 
 completely water-logged. Her crew reached land 
 the same <lay, and the day following a small 
 steamer, manned by the salvors, wentout in search 
 of the derelict. They found her about forty 
 miles frfim North .Sydney, and with little diffi- 
 culty towed her into that port. The value <if 
 slii]), cargo and freight was estimated by agree- 
 ment at S'2tl,<J(M>, and the value of the salving 
 steamer was alleged to be >'4,(MM). 
 
 Hild, that the salvors should receive .'?2,.")»K). 
 
 The receiver of wrecks at .Sydney put in a 
 claim for the possession of the ship, as against 
 the salvors. 
 
 Hild, that there was no ground for the 
 claim. 
 
 .Salvage is not always a mere compensation for 
 work and labor ; various circumstances upon 
 public considerations, the interests of commerce, 
 the benefit and security of navigation, the lives 
 of seamen, render it proper to estimate a salvage 
 reward upon a more enlarged and liberal scale. 
 The ingredients of a salvage service are, first, 
 enterprise in the salvors in going out in tem- 
 pestuous weather to assist a vessel in distress, 
 risking their own lives to save their fellow-crea- 
 tures, or to rescue the property of their fellow- 
 subjects ; secondly, the degree of danger and 
 distress from which the property is rescued, 
 whether it were in imminent peril, and almost 
 certainly lost, if not at tlie time rescued an<l 
 preserved ; thirdly, the degree of labor and 
 skill which the salvors incur and display, and the 
 time oc ipied. Lastly, the value. \Yhere all 
 these circumstances concur, a larga and liberal 
 reward '■ ight to be given ; but where none, or 
 
1291 
 
 SHIPPING. 
 
 1202 
 
 Bcarcely any take place, the compeiisatiim can 
 hardly be denominated a Halvage compensation ; 
 it is little more than a mere rennineration pro 
 opere et lahorc. 
 
 The W. (1. Puimm, Y. A. l).,27l. 
 
 94. Salvage- Derelk't-Thls vessel, hav- 
 ing l>een abandoned at sea while on a voyage 
 from (,>uebec to London, was found in a water- 
 logged condition by the A. W. Singleton, off the 
 coast of Newfoundlanil. The male and four 
 Beamen of the latter vessel took charge of the 
 derelict and brought her into the port of Syd- 
 nev. It was a very meritorious case, the salvors 
 having run considerable risk anil enduretl great 
 hardship. Tiie value of the derelict was ap- 
 praised at !?3(»,(KK). 
 
 Held, that the sum of ?«,fKt(> should be awar- i 
 ded as salvage, of which the master and mate 
 received .«l,tKK) each, and the four other salvors : 
 ^:M) each ; .SM,'2(»(» lieing allowed to the owners 
 of the ship, the balance to those, oiher than the 
 master, who remaineil on the salving vessel. 
 
 Tin Ccnitirliiiri/, Y. A. D., .'>7. 
 
 ft.i. Salvase -Dt relict -This vessel, while 
 
 passing <lown the«lulf of St. Lawrence, struck 
 on a reef, lost her rudiler and became utterly 
 unmanageable. In this condition she was found 
 by tlie salvors, who, resj)on<ling to signals of 
 distress, took the crew otl' and landed them in 
 Sydney, Cape Hreton, then returned to the , 
 Regina, and after considerable exertion brought 
 her into the same port. The net proceeds of 
 shi]), stores and cargo were !?7,10.">. 
 
 Ill /'I, that the salving schooner should receive 
 8,")(K». and the ten seamen on board her 8"2(M> each. 
 Directirtns giv.-n as to proper method of execut- 
 ing appraiseiuen; of sliip an<l cargo. 
 
 Thi li'ii'nia, Y. A. I)., 107. 
 
 m. Salvage -For restiie by the erew, 
 
 one-sixth. King's ships not entitled to, for per- 
 forming their ordinary duty. 
 
 Tht Wn/ker, Stewart, 103. 
 
 97. Salvage ft*oin lire -Services of float. 
 
 ing fire-engine and fire department— The two 
 baniues M. ,1. K. ami Magnolia were lying out 
 in the stream in Halifax Harbor, the former 
 being ready to proceed to sea, and only awaiting 
 orders, the latter laid up for the winter, and 
 having only one man on board as watchman and 
 ship-keeper. At about 2.40 a. m. on the morning 
 of 4th February, the look-out on board the M. 
 ,1. K. discovered fire issuing from the Magnolia, 
 and aroused the captain, who immediately called 
 all hands up, and sent a boat off with the mate 
 and five men. They found the vessel on fire 
 
 aft, and took away the watchman to their own 
 vessel. The captain himself with the niiilciunl 
 all the men that could be spared from tlie M. ,1. 
 K. returned to the bui:''..!g ship and put fi)rtli 
 every exertion to subdue the flames. Tiny 
 succeeded in retarding their progress, l)ut (.niilil 
 not have saved tlie vessel from r.ltimate destruc- 
 tion had not the fire been observed fiom tiic 
 shore, and after the lapse of more than an liour 
 a number of the city firemen came otT in a stiiiiii 
 tug specially fitted up with fire pumjis, by whuw 
 eflPective assistance the fire was soon put out. 
 The owners, master and crew of the M. .1. K. 
 and the owners of the steam-tug claimed renin 
 ' neration as for salvage services. The fiicnun 
 made no chiim. 
 
 Hi III, that the services rendered were salvage 
 services, that the owners of the M. .1. K. wire 
 not entitled to receive anything as their vessel 
 had not been in anywise imperilled, and tii;it 
 the amounts awarded to the otliers slioidd lie its 
 follows; the Magnolia having been sold inidei 
 directions from the Court, realized S12S'2..->!t ; tn 
 the owners of the steam-tug, !*"2<lO ; to the nias 
 ter of the M. J. K., 8WM) ; to the unite of tlic 
 M. .1. K., •S40 : 810 to each of the eleven men, 
 fSllO ; total 8450 with costs to be taxeil. 
 i Th< A/nuiwIia, .SC. L. T., 107. 
 
 98. Salvage-llen for-In awarding sal- 
 vage, the actual salvors, and not the owners nf 
 the salving vessel, receive the largest uniuunt. 
 
 (living advice to a master as to locality, even 
 to a foreign vessel, is not a salvage service. 
 
 Salvors must not sleep on their lien on the 
 pro])erty saved. 
 
 Where salvors, who have a claim for a nioikr- 
 ate reward, set up an influenced and exaggerate' 
 statement of their services, tlieir claim will I 
 wholly dismis.sed, and themselves condenuie.l in 
 eosts. Thi AImn, 1 Old., ML 
 
 99. Salvage not iliie for rescuing a ship 
 
 which had been seized for a lireach of the lii»- 
 of its own country. 
 
 Enemy's property protected by a liceii.se, \iM'- 
 to i)ay salvage for sei'vices rendered by Biiti>l' 
 ships. Thf Ahiijail, Stewart, .'!■>■'. 
 
 j 100. Salvage of life -A foreign ship he- 
 
 coming disabled in the <iulf of St. Lawrence her 
 crew were taken off by one set of salvors an) 
 safely landed at a port in the Island of Ca|Hr 
 IJreton. Subsecjuently another set of salvors ff il 
 in M-ith the ship anil brought her into an adj'H" 
 ing port. The services in both cases were liigl'l) 
 meritorir)Us and rendered while tlie disal'leJ 
 vessel was about sixty miles from the nearest 
 land. 
 
1293 
 
 SHIPPING. 
 
 1294 
 
 //'/'/, that \v)t\\ sets of salvors were entitled ] due form was proved. Tins value of the Marino 
 tn salvage, and a mile of tlie sliip having Iteeii was appraised at 80,1 MN). 
 
 efftfted for !!l'J,5H(), tlie Court awarded the sum 
 
 (if ijillrtO to 1)0 diviiled among the salvors of the for salvage 
 
 I'i'C'W and !^0(N) among the salvors of the ship. 
 
 Thi: H'iudnll, V. A. !),, I.'W. 
 
 Hdil, that the sum of .*,S(H) shouhl he paid 
 The Marino, Y. A. 1)., ol. 
 
 101. SulvuKe of life-Awards mtule in the 
 
 nature of life salvage to fishermen who had been 
 iiistnimcntal in saving many lives from a pas- 
 Bi'Dger steamer wrecked upon the coast. 
 
 TlieAf/niitlr,y. A. 1)., 170. 
 
 lU'i. Snivuge— Payment of award to sal* 
 
 10.1. SalvaK<' — Tlie Aususte Andre, a 
 
 Belgian :4teamer sailing between Antwerp and 
 N'ew Vork, enoountered severe weather and had 
 fier rudder carried away. She continued her 
 course in that crippled condition until fallen in 
 with by the Switzerland aliout 17."> miles distant 
 from Halifax, who took her in tow and brought 
 her into port, after three days towage. The 
 
 vors -Directions as to the proper method of weather was moderate during all that time, and 
 
 |Ki\ iiicnt to salvors of tiie amount awarded them the services rendered, « hile extremely opportune 
 
 liy the ( ourt. n„ij valuable, were not of a higldy meritorious 
 
 Till- I'roctor for the owners of the salve.l character. The values of the respective steamers 
 
 vissel had paid into the hands of the Proctor, ami their cargoes, freights, etc., were as folh.ws : 
 
 f(.i' the salvors, the amount awardeil to the 'i'i,u Auguste Andre, vessel worth .'jiil'J7,.')fH» ; 
 
 silvors, which, having been paid by him to the ^.,^,.J,n^ .* !■_»•-',")(«» ; freight, .'riH,")!)-.'. The Swit/er 
 
 agents of the salving sliij), had been by them i^,,,!, vessel, .^.'W,5,(HK» ; cargo, 8'-V.<»,<K>tt. 
 
 iiiiMe subject to a commission of five per cent. //,,/,/^ tl„it .^Jl^iMKI should be awarded as 
 
 its iigainst the salvors. The Judge intimated salvage, of which .'>i!2,(HH) slumld go to the 
 
 liiMipinion that this should not have been done, owners, S\,mi to the master, and the balance 
 
 liiit that the whole of the salvage money should among the crew according to their ratings. The 
 
 Imvc been paid into Court, an.l then paid out ,„„jern decisions cited and reviewed. 
 
 uikIc!' its authority to the salvors in person, if 
 they applied therefor, or if not, to their duly 
 iiiitliori/ed agent. It was further directeil that 
 the ivcuipts of the salvors or their agent, with 
 procif of his authority, should be filed in the .' 
 
 Th< liimd,irii,\'. A. 1)., A'l. 
 
 T/ih Awjusft Andrr, Y. A. 1)., 201. 
 
 cause. 
 
 103. Salvage, (lunntiim to salvors -Ke- 
 
 106. Salvage -The baniue Martha, hav- 
 ing run ashore near the mouth of Halifax Har- 
 )or, was assisted by three neighbouring fisher- 
 men in getting off again. Substantial service 
 extending over three days was rendered. The 
 salvors, being as they considered inade(iuately 
 
 duction— Case in which, on a/>/>fn/ to ly /'riry ' remunerated, applied to the Cimrt, 
 
 Vviniri/, salvage remuneration was re.luced from ffe/d, that the amount was not sufficient, and 
 
 sl'.'.iKKi to S7,'>(K>, their Lordships being of that the sums of .*3.">, mt and .S-T) should be 
 
 Mljinidii that the difference between the sum added to the respective amounts paid into Court 
 
 awiiiilcd and that which would be lil)eral was 
 
 Ml laiLte as to rec^uire correction. 
 
 Th' (iliuilufor, L. R., 3 1'. C., 580, approved 
 "f liiiil followed. 
 
 (loir ct al. V. Alltn, not reportnl luloir, 
 
 Oi'-inrn of 7'hi- Thomat Allen v. iloir et al., 
 L. R., 12 App. Cas., 118. 
 
 for the three salvors with costs. 
 
 The Martha, Y. A. 1)., 247. 
 
 101. Salvage -The Charles Forbes sailed 
 
 from a port in the Uni*i,d States bound for 
 Portland with a cargo of coal. Kncountering 
 heavy weathci', her cargo shifted, but not to 
 '' such an extent as to throw her on her beam 
 104. Salvage— The brlgantine Marino, ends, nor did she become unmanag»'<ble. In 
 '111 a voyage from Boston to Sydney, encoun- ' this state she was found off the American coast 
 itred a heavy gale, which carried away her by three American schooners, and abandoned by 
 ri5'ging and rendered her almost unnuinageable, her master and crew without there being any 
 111 which condition she drifted along the coast circumstances whatever to justify such a cour.se. 
 "f Xova Scotia for several days, until fallen in Although many American ports were much 
 «ith hy the steamer Commerce, which took her nearer, the salvors lirought her into Halifax. 
 11 tnw, and after eight or nine hours brought After the vessel had been taken possession of by 
 I'er into Halifax Harbor. There was some evi- the salvors her master made efforts to return to 
 'lence of an oflfer of §.'500 having been made for her, but was prevented by one of the salvors. 
 the services rendered, but no actual tender in! He then asked them to take the vessel into Port- 
 
1295 
 
 SHIPPING. 
 
 12'J(i 
 
 laiiil, liiT (k'HtiiiatidiiJ'iit tluM wmh ivtuxfil. Tlic j clainmntH ciiim; on lioiinl iukI tlic iiiiTitN nf ilnjr 
 vcsHfl wiiM iippmiMud iit ."ii-."!..'!!!.'!!!!!!! lliu oiigo iit st'rvict'H, tliu (lufciiiliiiitH (liHputin^,' their claiin tn 
 
 5'4.44tl. 
 
 //»/>/, tlmt tliu vt'HHi'l wiiM nut iKii'lict ; tliut 
 the Hiilvors Imd not lU'teil a» tliey mIiouM have 
 
 the cliaractcr of huIvoi'h. XevurthelfHH tlic ilc 
 fenthintH ])iU(l the Hiini of >*Wt into Court, umi 
 the weight of evidence weenieil to lie with ilic 
 
 ilnne umiUt tlie I'iruuniMtaucex, and tliat as tliere chiinnintH. 
 
 was no (tulmtantiul Bervioe rendered l>y tiieni, //«/-/, that t lie mnn of •*'J<Kt shotdil lie ii|-.i.illy 
 
 the total salvage hIiouM only lit .'<'J,S4ll, to lie | divided among the five chiinmnts. 
 
 divided among then., with lo^ih <:f nuit. The | The Sltrn- lUII, Y. A. 1)., 4.1 
 
 Captain of one of the salving schooneiw, who | 
 
 had taken connnand of the Charles l-'oilies, was ; HI. SalVaKC - Valuation Of Hlli|), Cliri;)) 
 
 helil to have mo niiHCoiidueled himself us to for- and freight 8(i.">,(HH», salvorti awarded !>i|;<,(MHi. 
 
 feit his share of the salvage. The law upon this 
 point reviewed. 
 
 Th< Churl's Furh,s,\. A. D., IT'-'. 
 
 Th> Syl,,lilih, V. A. 1).. 1,17, 
 
 112. Seamen -.IrtU'leN -SiiliiK lorwa^is 
 
 —Jurisdiction of Vice-Admiralty Court In 
 
 108. Salvage— The Herman LihIwIR, on a shipping articles the following is a sutlicifinly 
 voyage from New York to Antwerp, iiroke her pu'cise descrijition of the voyage : " Knnii l.c.ii- 
 shaft when two ilays out, and the California, don to any port in S])ain, thence to Newfoiiihl- 
 anoiiicr steamer, coming \\\>, an agreement was Imid and IJrilish North America, United .States. 
 entered into liy tlie master of the disaliled West Indies, Mediterranean and Continciil nf 
 steamer to lie towed into Halifax, and to pay Kiirope,l)aekwards and forwards, in the pioMcii- 
 foi the service such amount as should lie settled tion of the Newfoundland trade, and hack to tlio 
 liy the Admiralty Coiu't at that i)ort. This final port of discharge in the United Kingilmii, 
 was accomplished within twenty -four hours, such voyage not to exceed two years, 
 without any mishaji, e.\cc])t the breaking of two j No seaman who is employed for a vuyiigc ni 
 hawsers. engagement which is to terminate in the Uniti-.j 
 
 H'/'l, tliat the service rendered was not a Kjngilom, can sue in a Colonial Vice-.Adniiialty 
 mere towage, luit a salvage service, and 81'»,(KMI Court for his wages, uidess discharged as diicc- 
 was awarded tlierefor, of which .^iT.tHMt went ted l>y the (ieneral Merchant Seaman's Act. 
 to tlie owners ami !?7'')(t to the master, the The Admiralty Court has no jiuisdictioii jii 
 lialance to the crew according to their ratings, n suit to recover seamen's wages, unless the sniii 
 The law as to deviation for the saving of prop- ; claimed amount to at least fifty |)onnils stciliiii;. 
 erty reviewed. | />«''; v. 7'lit Vilonty, .laiiics, 'Ml 
 
 The. Hn-man Lndin<i, Y. A. 1)., -Ml. ' 
 
 109. Salvasc-Tlic sehooner Maigaret, »3. Seamen -Correction of, bj master - 
 
 when in a helpless condition, was fallen in with The common law right of the master (,f a vc.hI 
 l.y the Alfred \Yhalen, and the captain of the to moderately correct and Hog a seaman i-< n"t 
 latter vessel persua.led the Margaret's crew tr, taken away by the necessary operation M 
 ilesert her and take to his vessel. He then Imperial Statutes. 
 
 sailed otJ- but soon returned, and taking her in Defendant, master of the ship I'lctuu. m 
 tow, brot'ght her into port. Pi^'f". N- •"^- ^^hile in the Hay of Canlenas, 
 
 mid, that this .lid not constitute the Mar- W- U being about to leave the ship for a tni.e, 
 garet a derelict, and, therefore, somewhat less ordered an anchor watch to be kejit. On In^ 
 than one-half the amount claimed was awarded, return at night, he found that the order luul hed. 
 The Maiyanf, Y. A. I)., 171. <lis<'l'«ye'l. '""I that the plaintifl', to whom the 
 
 ! duty had been assigned, was asleep liclim. 
 
 110. Salvage — This vessel, while on a Plaintiff, on being ordered up, used insolent 
 coasting voyage, put itito harbor for the night. ; language and struck defendant, for which lie was 
 (m account of heavy weather. During the night ! placed in irons. Plaintiff then renewing tlie 
 the wind increased and the vessel dragged her | use of insolent and threatening language, iiiid 
 anchors until she struck on the rocks and was soliciting the crew to interfere on his lieliult, 
 placed in circumstances of considerable danger. I defendant caused him to be tied up and floggfl 
 At this point the claimants ten.lered their ser- ; him with a piece of rope until he became (jinet. 
 vices, and after two hours' labor succeeded in I Plaintiff brought an actior for daniages, and f'e 
 
 rescuing her from her perilous position and 
 securing her in a pla^.e of safety. The evidence 
 was exceedingly contradictory as to how the 
 
 jury finding for defendant, on a, motion to 5« 
 the vertlict aside, 
 //M, Wilkins, J., ditsmtimj, that the facts 
 
1207 SHIPPING. 1298 
 
 havin^r l.cen Curly ,mt t,. tl,. jury, tlu.jr v.nli...t UH. SCiinim'H wajJPS - .hirlMlKllOII of 
 
 "";;'''"",• ,,. I Vice- Admiralty -Special contract for sea- 
 
 "'"''■• ''•• ''"'"'""''• man'8 wagea. what constituteH - Cannot bo 
 
 <iu,:/o„ V. i.w/on, I X. s. !>., SO. enforced in Vice-Admiralty Court -Two nut 
 
 , "f tliri'f juiiinovi'iit* slii|)jic(l at IJerimiilii mi 
 
 111. Sraincn-CONtHrrniMMltoplililltlirH- l».anl tlu- Ml,i|, lil.i.lk.,l, ,i l.ioc.ku.h. rmm.r, fnr 
 
 U h.R. tlio].laiutitIs,.euin..n.roc..vi.nMl f„r ^u^^,0H tlio romwl v..yn«f from HermiKk to Wil.niiiKt 
 
 ■luf tlirm an ain..nnt in rach ohhu below 840. Xo,,|, Can.ljna. and tlicncf to Halifax. Nova 
 
 H'/'l, that aH their ulaiinH might have I.een Scotia. The remaininK P"'i'"<'vent Miippe,! at 
 
 Mi,.,l f.,r hefore a .Stipen.liary Magistrate or two Wilmington in room of one of the othern. No 
 
 .luHtices, they Hhoul.i n..t have their costs. ,!,),,•« articles were Hih'ne.l, hut there Mas evi- 
 
 I hi Ann, \..\. I)., 104. .lence to jirove tliat the master hail uolitraeteil 
 
 to )iay tr) eauh of the proniovents certain 
 
 ll.i. Scamoil - Injur)' to, In servlCP- spe.iHe.l sums, in three e,|ual instalmenlM. 
 When a seaman who has shipped for a wliole The eontraet was al.solnte as to two of tlie 
 vnyane is injured in the service of the ship, ami instalments, and as to the third, there was a 
 
 i" left at an intermediate port, he is entitled to c lition that it was to he luiid only if the 
 
 wu'.s for the whole voyage. elainmnts' conduct weie Hitisfactorv. 
 
 \Micre the master furi.i.shed such seaman at //,/,/, {].) That this was not an' ordinary en- 
 tile intermediate |)ort with surm'ieal aid and gagenient for seamen's wages. Imt a special" con- 
 with maintenance, the sums e.vi)ended tlierefor tract. 
 'imint he set oil' against hi.s wages. (2.) That previous to tl- Admiralty Court Act 
 
 (,hmin, whether the master is hound to fur- of l,S(il, '24 Vict. c. 10. the High Court of Ad- 
 nisli snch a.ssiHtance. ,„i,„lty had no jurisdiction over such contracts. 
 
 l!'i'-'o„ v. AVf,xs «/ f,/., 1 Thorn., (1st Kd.). 4S ; (.•{.) That thi.s Act did not extend to the Vice- 
 
 ('2iid Kd.), 7."). Aclmiralty (^mrtH, nor were the provisions re- 
 ])ecting s])ecial contracts, emhraced in its tenth 
 
 n«. Seaman -Mt'dloal attendance for- section, extended to those Courts l.y the Act of 
 ilie (letendant's vessel, the (Uengarry. left ISti.S, 'Jrl Vict, c •>4 sec 10 
 Liverpool. UK, with a full crew, hound for (4.') That,'alth..ugh the commission formerly 
 .MiniMiichi, N. 15. After she had heen .ome issued to the Viee-Admiralty .Judge empowere.l 
 liHUis at sea a stowaway, known on hoard l.y i.j,,, " to hear and determine all cau,se.s according 
 the imine of .Sterns, appeared on deck. As he to the civil and nuiritime laws and customs of our 
 couM not he put on shore he was permitted hy High Court of Admiralty of Knglan.l," yet this 
 the master to sign the ship's articles, at nominal p„„.t.r, like .son.e others assume.l to be bestowe.l 
 wages, after which he performed the duties of a i,y the commission, is fre.|uently inr.perative, 
 -emnun until severely injured hy a fall from a and that, therefore, this Court has no jurisdiction 
 yanl .,f the shii). In the ccmrse of her voyage j,, ,.ases like the j.resent. 
 
 thevesselputinto.Sy.lneyHar, and .Sterns, who //,/,/, «/.vo, that, although the respon.lents 
 ws then suffering fr<un disease resulting from „.ere boun.l to have objected to the jurisdiction 
 .inn,Hre8 and want of proper attendance, was ;„ /;„,;,,,, by appearing un.ler protest, still, that, 
 hroiiglu by the master to the plaintiff, to wh.,n. ^here the(\,urt is .,1 opinion that it lins no juris- 
 the iimster represente.l that Sterns was a .sea- .lietion, it will not only entertain the objection 
 i.mn who had been injured in the .lischarge of at the hearing, but is boun.l it.self to raise it. 
 Mduty. and pledged the credit of theownerfor y/,. Cifi/ of P't.rhur,,, 1 Old., S14 ; V. A. 1).. 1. 
 Ills siip]Hirt and maintenance. 
 
 H'I'I, that the contract made by the master 119. Seamen -Wages Of— Actlon by mas- 
 
 "ithplaintiff was within the scope of his author- ter and three seamen for their wages. The 
 
 ity as master of the vessel, and was binding upon accounts |>ro<luced by the master, who had al.so 
 
 'lie imiier. acted as ship's husband, were extremely unsutis- 
 
 IVu/xh V. McDovntd, 1 X. S. 1)., 87 factory and unreliable. He claimed a balance 
 
 due him of .S317.SO. but failed to establish his 
 
 llj. Scamen-The owner of a wrecked right to more than .*i34.S0. There was nothing 
 
 nwel m not bruind to defray the return passage against the demand of the other proniovents, 
 
 " le seamen. and the amounts claimed were awarded them. 
 
 I he transfer of the materials of a wrecked The sums so recovered were all under 84(t. 
 vessel hy the master for that purpose held not and as therefore they might have been sued for 
 t'l change the property in the goods. before two Justices of the Peace or a -Stipen- 
 
 Mtlancon v. Comeaii, James, 37;^. diary Magistrate, 
 
1299 
 
 SHIPPING. 
 
 1300 
 
 /M/, tliat tlic proinoventH iIkiuIiI not have 1876 — Merchant Shipping Act, 1854 — !•., u 
 
 tlieir costs 
 
 Th Auii, Y. A. IV, 104. 
 
 HJiip owiioc ill Yiiiiiioiitii, N. >S., eiiiplnytd 
 iiH \m agents in Liverpool, ■]. .& Co., tln' 
 (lefeiiilant .1. l>einn a iiieuilier of tlu'ir tirin, 
 
 ._ . . anil, iiH agents in Xe» York, lie employed iIk 
 
 aH'ected— The title to a IWitish »liip is not (j,.,,, „f s. p. 11., of which the defenilanl .S. wa» 
 
 I'iO. Title to BrItlHh tthlp - B) what 
 
 atl'ecteil liy the delivery of a writ of execution 
 to the Siieritt' against the owner of tjic ship 
 
 a nieiiihev. In the course of his dealiii;,'-* with 
 tliese agents he hecanie indebted to hotli tirin 
 
 Nothing will ufl'ect such title except registry, as f„r acceptances hy tliein of \\\i drafts niuile wlan 
 
 refjuirud hy the Merchant Shipping Act of IS,'>4. \ 
 Cnfiooii (I III. V. Marvoii-, I Old,, 14S 
 
 121. Transfer of -PurcliaMe of IntcrcHt In 
 
 shipping by alien— I'laiiitiff, being an alien, jiur 
 
 tie v.-iis ill want of money, towards the p:iyiiii'iii 
 )f which they received the freights of hit vc-ihiN 
 ami remittances in money, On one occatiDii Ik 
 said that he would give to the Liverpool tinu ii 
 mortgage on the "Tsernogora" or the " Mai; 
 
 chased from A. S. one-fourth of the .schooner nolia," when they should require it, and, In ;i 
 
 Anaconda. The purchast nioiicy was paid, but subsequent conversation with a iiienilitT of tin 
 
 there was no contract in writing, nor any bill of jj,,,„^ j,^, ngceed t(, give such mortgages on hi 
 
 fcale executed, nor was any bill of sale or transfer j^j,, conditions, which were not carrieil out. Hi' 
 
 ever demanded by plaintirt", but it was agreed nin„ piomiseil the firm in New York to give tliim 
 
 that, in the event of A. .S, (who was still to be syeupity "in case anything happened.'' and 
 
 considered sole owner as regarded third parties) nn-ntioned as such security a mortgiige on tin 
 
 Hclliiig the three remaining fourths, he sliould "Tsernogora." According to F.'s own stair 
 
 also sell the plaiiititTs foiirtli. nient, he had sutticient property to p,iy IiIm liii 
 
 A. .'^. having died, his executors sold his ),iiitit,s ^yhen the.sc conversations took place. A 
 
 interest, but did not sell that of plaintitl', « ho few weeks after these c(mversations K, exieuteil 
 
 then brought his action for breach of the agree- ^^ mortgage of •_'(»/04 shares of the "Tseiiiognia," 
 
 ment. in favor of the defendants J. & S., and had tlu' 
 
 Hfhl, that plaintirt', as an alien, being dis(iuali- j„j,„g pecorded, and within thirty days their 
 
 fied from taking a bill of sale or transfer of a ,ifte,. jj ^^rit of attach'.nent in insolvency wa> 
 
 British vessel, under IT and is Vic, c. 104, and issued against him. The plaintirt', who wa- 
 
 the agreement sued on being an attempt to appointed as.signee of F.'s estate by his citMlitoi 
 
 , ,. .,. . . , 1. .1 c 1 J. . ., ._ ..i .. .: 1 .. .1.,;. 
 
 filed a bill to have the mortgage set aside, eklin 
 ing that it was void under section l.'J.S of tin 
 Insolvent Act of 1S7.'). The defendaiii ,1. ilil 
 not answer the plaintitt"8 bill, and the dtlui 
 
 as made 
 
 evade the Statute, could not be enforced. 
 
 Cnllai v. Mi-Farlam: et a/., I N. S. I)., 468. 
 
 122. Transfer of shares In vessel-Mer- ..„, „..„ ^ , _ 
 
 chant Shipping Act — AV. H. M. made an ' ,ipfg„(iants denied that the mortgage was 
 assignment to plaintirt', for the benefit of his j,, contemplation of insolvency, and also elainieil 
 creditors, of his entire property, including a ^\^g^^^ ^s it was made under the provisions of 
 iiumlicr of shares in the schooner O. \V. Moore, t],^ Merchant Shipping Act (Imperial), it wa> 
 but no bill of sale of the shares, as reciuired by „„t affected by the Insolvent Act of l!S7."). Thi' 
 the Merchant Shipping Act, was tither execut- ■ Judge in Kiiuity, before whom the cause was 
 ed or delivered to plaintirt". 1). & ^L, having heard, made a decree in favor of the plaintiff. 
 obtained a judgment against \V. H. M., issued and ordered the mortgage to be set aside. 
 Ik writ of execution under which defendant, as , ^^^ „^y,ga/ /o the Suin-emt Court '^f Korn Srotiti. 
 Sheriff, levied upon the shares and proceeded to ^^ ^^^^ ^^^^^ ^ji^. provisions of the Insolvent Aft 
 sell. Prior to the sale plaintiff appeared before ^^j ,j^..'^ ^^.j^jj ,.egj,ect to conveyances made In 
 
 the Registrar of .Shipping, and, after making a . . -• . -— -i ►..•. 
 
 declaration of ownership, was entered upon the 
 register as owner of the shares. 
 
 //M, that plaintirt" had no ei|uitable right 
 which could he so asserted, or which could pre- 
 vail over the judgment creditor and the levy 
 made by the defendant. 
 
 Moffat v. FeriiiisoH, 6 R. & (f., 217 ; 
 6 C. L. T., 322. 
 
 123. Transfer within thirty days In con- 
 templation of insolvency— Fraudulent prefer- 
 
 contcmplation of insolvency, apply to mortgagf- 
 on ships, notwithstanding the provisions of thv 
 Merchant Shipping Act ns to such mortgage'^. 
 and the Imperial Act to remove doubts as tn 
 the validity of Colonial laws. 
 
 Weatherbe, J., ilitxentiiKj. 
 Kinney, An^ignee, v. Join letal., 5 R. & (1..2W 
 
 On appeal to the Supreme Court of Caita'la, 
 Held, affirming the judgment below, Heiiiy. 
 J., (lU'<entlmi, that the promise to give security 
 in case anything shouhl happen," couUl only 
 
 ence under aection 133 of Insolvent Act of j mean "incase the party should go into insui 
 
ISOl 
 
 SOLICITOR. 
 
 1302 
 
 vi'iu'y," anil tliiit tliu traimfcr win void iiiidt'i' 
 K'ltioii |;J3 of thf Insolvent Act of 1S7'>. 
 
 //»/(/, n/so, that tiio provinionst of the Mor- 
 chant Shipping Act did not prevent the prop- 
 erty in tliu Nhip passing to tiic axHigneu under 
 till' luNolvciii Act. 
 
 Joii'x V. Kiiuinj, II ,S. C. K., "OH. 
 
 124. TraiiNfpr of vessel -34 Oeo. 3, c. 68, 
 
 Bcc. 14, " No tran.tfer, contract, or agreement 
 for tranHfer of property, of any Hlii[) or ve».sel, 
 aiiiiU lie valid oi' eft'ectual, for any purjio-se w luit- 
 ever, either in law or in eijuity, iinlens it shall 
 lif made hy hill of sale, or instriunent in 
 wiilinj.', etc." 
 
 'I'lif preainhle nientionH only Nhi[).t tiansferred 
 tn liriti.>(Ii suhject.'*, hut tlie enacting part makes 
 i;ii rcfei'enet' to the preanilile. 
 
 Hi III, that the regulation.^ of the .-Vet applied 
 tip fonigneis. 
 
 Thi Frii iitl'i Ailriiihifi , .Stewart, '-'(K). 
 
 1'2.>. Uliarfage recoverable under In- 
 
 dehitatua assumpsit —Wliarfage i.s recoverahlc 
 umlcr CDiintH of iiiih liiiatn < uiiiim/i^if, tiiat heing 
 the proper form in w hich to jiroceed. 
 
 J)i ll'o//" V. Puiiihiiyil It a/., :i X. S. ])., •_>-_>4. 
 
 BliANDEK 
 
 Si- DEFAM.ITFON. 
 
 SL.WE TRADE - 
 1. I'll cumstances to prove vessel engaged 
 
 in trade— The general princijilen of tlie law of 
 imtions, and the fact that the slave tra<le u pro- 
 liiliittd by the laws of the United State.'i have 
 W'li established ii> the cases of the Aniedie 
 and the Fortuna. A claimant cannot lecover 
 jH'ojierty, employed in a course of trade which 
 is against the laws of humanity, and in defiance 
 of the laws of his own country. 
 
 It ir< not necessary to have slaves actually on 
 lioard. It is sufficient if the unlawful trafbc was 
 cither incipient, progressive, or complete. All 
 tiiat is necessary to do is to establish the fact 
 of trading. This may l>e proved l)y direct evi- 
 dence, or by circumstances. Where the slaves 
 «re not actually on board, it may often be diffi- 
 cult to find direct proof. Little attention can 
 lie [aid to the evidence of men suspected of 
 liciiig engaged in the trade, when the circum- 
 
 Htance.s are deciHivcls against their teHtimony. 
 There are Mi^ven charai'teristie I'lrciimit'inci'* of 
 a slave voyage. Five of them occur in th ^case. 
 There have been fouml on board a number of 
 small arms, a great ijuantily of water, rice and 
 slaves' provisions, mess kits .md shackels. Tliif 
 two other circumstances, namely, bulk heads 
 anil main-deck grating.*, would be unnecessary in 
 a small vessel like tlie present. If this vessel 
 Was going for gum, ivory and the other innocent 
 articles stated, wiiat can account for their hav- 
 ing on board so many things pecidiar to the slave 
 trade, but totally nmiecessary for tlie other 
 species of commerce. N'essel and cargo con- 
 demned. 
 
 Th Sfi'iTH, Stewart, 'J.S4. 
 
 2, I'onecalmont of American property un- 
 der Spanish character — Vessel and cargo were 
 lioth claimed as .Spanisii jjroperty. The cargo 
 Was shipped at I'hiladelpiiia, from whence the 
 vessel sailed upon the I7th day of July, \HU>, 
 for Santa Cruz, in Tenerifte, intending to sail 
 from that island to the coast of Africa to pur- 
 cliase slaves. 
 
 Hy the decision of the Lords of Appeal in the 
 case of the Amedie, it was established tliat this 
 trade was unlawful in itself, and that claimants 
 cannot recover property emi)loyed in it, unless 
 they can show a special justiHcation, that it is a 
 permitted trade under the hiws of their own 
 countiy. It follows, therefore, that if this pro- 
 perty siiould prove to be American, it would be 
 coiulemnable under the authority of that case 
 directly. Hut if it belonged to Spaniards, as it 
 has l)een claimed, it remained for the parties to 
 sliow the legality of the trade by the laws of 
 Spain. 
 
 //■( III, from a large mass of evidence, that the 
 real property in this case was ni an American 
 citizen. Vessel and cargo condemned. 
 
 La Morrd, Stewart, 205. 
 
 SMUGGLIXG. 
 Conviction for -Forfeits the vessel, though 
 
 the owner be innocent. 
 
 rh< SSniirni/, V. A. I)., 267. 
 
 Se, REVEME. 
 
 SOLKITOB- 
 S^e ATTORNEY. 
 
1303 
 
 SOVEREIGN, THE. 
 
 1:10+ 
 
 Queen's Counsel and tlio ii'unliition of \nxxv- 
 deuce ivt the liar "f N. S. liy the Lieiileiiaiit- 
 (Invernor of the I'lovince in Council, are infra 
 riris, l)ut the latter i.s not to he eouMtiucd ,ia 
 retrospective in its eti'ect. 
 
 .Janien, .1., ili-d-ntliii',/, as to tlie latter Act imt 
 '2. frown OfBCCrs-CommlSSlons of AttOr- being retro8])e(tive. 
 nev-'Jeneral and Solicitor-(ieneral ordeied to l)e 
 
 SOVEREItiX, TIIE- 
 1. Crown cannot be sued or enjolned- 
 
 Remedy by petition of right— 
 
 Sft CROWN, 1. 
 
 irded. 
 
 James, IS'i. 
 
 3. Crown property - Right of Crown in 
 
 expect of tre.--i)asse.s not limited by 4tii R. S., 
 '- * CROWN, 3. 
 
 The old (;reat Seal of tlie IVovince— that lit 
 use since 1S37 — useil on patents appointing 
 (^tueen's Counsel an<l regulating precedence iit 
 tlie Har in IStJT, ceased to be the (ireat So.'l nf 
 the Province on the transmission of anew (iicut 
 Seal to the Lieutenant-! nivernor in Deccmlicr, 
 1S60, though not adopt eil or proclaimed iiy tlu> 
 Lieutenant-(!overnor in Council, .lames, .1., 
 (//.<>•« ii>iiii/. 
 
 Wilkins. .1., agreeing, but expressing tile 
 
 111 tlie 
 
 4. Crown-SuHbj -Second plea without 
 
 leave— 111 an action on a bond for ?^4IH» at the 
 
 suit of the Crown against the principal and one opinion that the ])resence of a (ireat Seal 
 
 of the sureties, the defendants pleaded more dnounient in <iuestion, atiixed by the proper 
 
 tlian one plea without leave and the plaintitTa ntticers, raised a conclusive presumption as to 
 
 attorney treating the plea as a nullity, on the \^g validity. 
 
 groun<l that theCnnvn was not bound by section 
 178 of the Practice Act (allowing a second or 
 subse(|uent plea), marked default and without 
 tiling any record entered judgment, without any 
 
 In r> rr-riihiin n/Rllrlil', O- C'.,-JH.&('., 4.")(l. 
 On (iji/i'dl to thi Siiimmi Court of Canmla, 
 By 37 Vic, c. -20, X. S. (1S74), the Lieutenant- 
 
 assessment of damages, upon which execiitifin (Jovernor of the Province of Xi'va Scutia, 
 
 was issue<l indorsed to levy for a sum less than 
 eighty dollars. 
 
 H'/il, on appeal from the County Court, that 
 
 was authorized to appoint Provincial otticers 
 under the name of Her Majesty's counsel learnid 
 in the law for the Province. P>y 'M Vic, c. 'Jl, 
 
 the judgment was properly set aside by the X. S. (1S74), the Lieutenant-(ioveruoi 
 
 County Court .Judge. 
 
 V«';"( V. Bain.-< tj ril., 8 H. & <i., '.'7lt. 
 
 5. Ejectment against officers ofthe Crown, 
 
 authorized to grant to any member of the bar a 
 patent of precedence in the Courts of the I'lo- 
 vince of Xova Scotia. R., the respondent, uas 
 appointed by the (;overnor-<ieneral on the •JTtli 
 December, under the (ireat .Seal of Canada, a 
 
 S,,nU.,^ that where an Act vests the property ^^^^^^^^,^ ^^^^^^^_^^^ ^^^^^^ ,,y ^,^^ ^„^if^„.„, ^^^^^-^^ .,, 
 
 in the otticers of the Crown, ejectment to test 
 the title will lie. 
 
 Kmnny v. Crnlmaa it uL, 4 R. i.t (i., ~.S 
 
 «. iirants by the Crown - 
 
 the Ciuirt he hail preceileiice overall nieinbers 
 
 of the bar not liolding patents prior to his hmii, 
 
 By letters patent, dated 'JOth \'ay, isTfi. under 
 
 the (ireat Seal of the Province, and signed liy 
 
 *' OR-iNT. the Lieutenant-( Governor and Provincial Slvii' 
 
 tary, several members of the bar were ai)p<iiiite>l 
 
 1. Llen-None on goods of- Queen may Queen's counsel for Xova Scotia, and precedence 
 
 bring replevin — The goods of the .Sovereign was granted to them, as well as to other (^Uieen's 
 
 cannot Ik; detained under a claim for lien. A counsel appointed by the (iovernor-(ieneral after 
 
 defendant cannot plead double or several mat- , the 1st of .July, 1S67. A list of Queen's counsel 
 
 ters in the case of the Crown. \ to whom precedence had been thus given by the 
 
 The Queen can bring replevin under 4th R. .S., 1 Lieutenant -(iovernor, was published in the 
 
 c 94, S.329. i iioyal accJtt of the •27tli May, 187(5, and the 
 
 Qmtn V. Fruftr, 2 R. & C,, 431. i name of R., the respimdent, was included in the 
 
 list, but it gave precedence and preaudience 
 
 8. Right to seize chattels under raort- '. l^efore him to several persons, including appell- 
 gage— ^nis, who did not enjoy it before. 
 
 Stt CROWN, 4. I Upon affidavits disclosing the alwive ami otiier 
 ' facts, and on producing the original comniissinn 
 
 9. Sovereign forms no part of Provincial' and letters patent, R., on the 3rd Janimry, 
 Legislatures as she does ofthe Dominion 1877, obtained a rule /(Mi to grant him rank ami 
 Parliament— Cliapters 20 and 21 of the X. S. precedence over all (Jueen's counsel appointeil 
 Acts of 1874, respecting the appointment of i in and for the Province of Xova Scotia since the 
 
i;i05 
 
 SPECIFIC PERFORMANCE 
 
 1800 
 
 •Jtith Ueufinljur, H7'-', and t<i set iiniilf, so far as 
 lliry iitt'cctod K.'.s pifcfdence. tlie lettuis patent 
 I'.iitL'd the -.'(itli May, IfSTti. Tliis rule was made 
 alisoliiti! liy the .Sniiit'ine Conrt of Xova Scotia, 
 on the •Jtith Marcli, l.sTT. A preliniinaiy ol.jfc- 
 tion was raised to tiie jurisdiction of the Supreme 
 ('(lurt of Canada to licar tie appeal. 
 
 //'/c/, — I. That the judyinent of tiic Court 
 hclow was one from which an appeal wouhl lie 
 t(. tlie Supreme Court of ( anada (Fournier, .1., 
 dis^i iitiiiij). 
 
 •J. Ptr Strong, Fournier and Taschereau, J,). 
 -Tiiat e. -il, of .S7 Vic. (Acts 1S74 of X. .S.) 
 h;i> not a restrospective etlect, and tliat the 
 li'ttcrs piitunt issued under the authority of that 
 Act could not affect tlie prccedeUee of the 
 (.•iicen's counsel appointeil liy tiie Crown. 
 
 .S. /'if Henry, Taschereau and (iwynne, JJ. 
 -That t:;e 15. \. A. Act has not invested the 
 Lei.'islatures of the I'lovinces with any control 
 o.ir the appointment of t^Uieen's coun.sel, and as 
 Her Majesty forni.s no part of the I'rovincial 
 Ltjiislatures, as she does of the Dominion Par- 
 liament, no act of any such Local Legislatuie 
 e;iii in any manner impair or atFect her preroga- 
 tive right to ai)point Queen's counsel in Canada 
 <liiectly or through her representative, the (Jov- 
 tiiinr-Oeneral, or vest sucli prerogative riglit in 
 till- Lieutenant-Covernorsof the Provinces ; and 
 tliiU ,S7 Vic, c. •_>(» and iM, X. S., are ultra -vV..s 
 iViii! void. 
 
 ■|. fi^r Strong and F..urnier, -J.J.— Tliat as 
 tiiis Court ought never, e.vcept in cai^es when 
 Muli adjudication is indispen.sahle to the de- 
 cision of a cause, to pronounce upon the consti- 
 tutional power of a Legislature to pass a 
 ■Stiitute, there was no necessity in this case for 
 tiioni to express an opinion upon the validity of 
 tlif Act in (juestion. 
 
 f.iXoir V. li'ifchi(, ;< S. C. H., ti7(i. 
 
 SPEIIFIC PERFORMAXE. 
 
 1. Action to fonipel the dillvery of an 
 
 insurance policy— Plaintili' hroughi tiiis suit to 
 compel defendants to deliver to hin. a policy of 
 insurance for .SWH*, alleging that they had" re 
 ceived his premium m the •27th Xov., I,sti7, anil 
 unilertaken to insure his hou.se for ;•. year from 
 tliat date, and to deliver a policy to that etlect. 
 The liuihling was destroyed hy lire in I)ecemlier, 
 1.S77. Defendants alleged that they had heen 
 induced to enter into the contract l.y the mis 
 rep;esentati(.n of plaintitt, -that the liuihling 
 .Society were ahout to advam.'e .S(i(H) on the pro- 
 perty, and that they h..a ...idertaken to insure 
 it, not for the plaintitf, luit for the .Society. 
 After the hearing plaintift".s counsel asked for a 
 decree for a policy, and aliso foi' the payment of 
 the money. 
 
 ffil'I, that even if .such relief could l>e granted 
 it could only lie upon a hill asking for it, where 
 as plaintitl' had, in his writ, only asked for a 
 policy; and further, that as the evidence was 
 directly in contlict on the point as to misrepre- 
 sentation, and as to the terms of the contract, 
 plaintiff should he left to his remedy at law. 
 .Vini/hfr V. 77(1 (,)iiii-ii /«.<. Co., 
 
 H. K. 1)., .•}J7. 
 
 2. Contract in regard to after acquired 
 
 goods so uncertain that specific performance 
 refused — 
 
 S' ASSIGXMEM, I. (i. 
 
 3. Damages already obtained — Where, 
 
 in an action for specific performance of a con- 
 tiact, the phiintiftclaimed and ol)taineil damages 
 for the non-fulhimei!t thereof, the Court re- 
 fused to decree specific performance. 
 
 Mr Ami V. a mi/, Cochian, .V_'. 
 
 SPECIAL DAMAtrES- 
 
 SPECIALTIES. 
 Tlie word «' Specialties " In chapter 19 
 
 ^- ^- (3rd series), section 10, made void when 
 
 given for intoxicating liijuors sold in (|uantities 
 
 Im.s than one gallon, does not include judgment. 
 
 Laicrtiia v. Mchouald, 1 X. S. D., 41,S. 
 
 4. Puffer -Employment of- Suit for spe- 
 cific performance— The fact of putters heim.' 
 emiiloyed liy a vendor at a puMic sale of a 
 nu!iilier of lots, although none were proved to 
 have hid on the particular lots which the vendee 
 OAMAGESi "'^''^''^''^ to purchase, was held to he a good ground 
 of answer to a hill hy the vendor for specitic 
 performance ; and a Court of Kijuity, in such a 
 case, instead of recjuiring defendant to prove 
 that some of the organized puffers had hid on 
 the particular lots, might well call upon the 
 plaintiff to prove that none had hid or heen in- 
 stiiictedto hid thereon. Kven though defend- 
 ant sign the conditions of sale, a Court of Eijuity 
 will not necessarily compel him, in a suit for 
 specific performance, to complete his purchase, 
 where a mistake made by the plaintiff or his 
 agent in plans circulated and used at the .sale 
 
1307 
 
 STATUTES, DOMINION. (1867, Ch. (5-9.) 
 
 130s 
 
 liiul itiisltMl luul pifjudicud liiiii, Imt will Ifiive 
 
 the iiliiiiitiff to liis remedy in aCouit of Com- 
 
 iiioii Law. 
 
 J( iiiiliiiis V. ffart, 1 11. iSc C, I'l. 
 
 .5. Sale of lands -T., by written con- 
 tract, ayreed to sell to D. a farm for i."'-»(»<», l)iit 
 sul)se(|ueiitly refused to execute the deed, and 
 forcilily ejected 1)., who had heen put in posses- 
 sion. I), brought a suit for specific performance, 
 to wliich T. pleaded several pleas, attacking the 
 agreement on various grounds, hut raising no 
 distinct issue of circumvention or frauil, though 
 hy way of recital in his fifth plea he stateil that 
 he had been over-reached, and that 1). had by 
 undue idvantage endeavored to obtain his prop- 
 erty fo. an inadequate consideration. The jury 
 found that T. was not incapaV)le of making a 
 ()rovident bargain, that the agreement was duly 
 explained to him at or before the execution, that 
 1). did not depreciate the value of the farm to 
 him, knowing it to be of greater value than the 
 amount of the purchase money ; but they also 
 founil the value of the farm to be i'JoO, and 
 that 1). had enjoined on T. secrecy as to the 
 bargain. 
 
 H(:l<l, Bliss, J., ilisstntiiKj.—Thiit D. was en- 
 titled to a decree for specific performance. 
 
 Po- Bliss, J., that he should rather be left to 
 his remedy by action for breach of contract. 
 
 Doilijt v. Tiirnir, 1 Old., I. 
 
 Ste, a/so, COXTR.it'T. 
 
 ST.iKEHOLDER 
 s (iAMI\e. 
 
 SIATITE8, DOMINION. 
 Power of Dominion to repeal Local .ict— 
 
 Hdd, that the Parliament of Canada has 
 power to repeal so much of the Local Act relat- 
 ing to Absent or Absconding Debtors as is 
 inconsistent with the provisions of the Insol- 
 vent Act. 
 
 Ramsey v. Hare, .3 R. & C, 4. 
 
 1867, c. 6, 8. 9- (Act respecting theCus- 
 *"°"^~ See SHIPPING, 43. 
 
 1867, c. 8, s. l.)6-(Inland Revenue)- 
 
 " All peudltm and forfeit arts, incurred under 
 this Act or (1111/ other law relating to ccvme. //Kiy 
 he prosecuted, sued for end recovered in iht 
 Supi rior Courts of Law, or Coourt of Vici-Admi- 
 ritltji hiivinij Jurisdiction in that I'roviiut- in 
 Canada, where the cause of proaecul ion migcs, ur 
 n herein the defendant is served with prtwe^^t." .yi. 
 
 Per Sir William Voung in the Vice- Admiialty 
 Court— 
 
 If a Dominion Act were to attempt to i;ive 
 this Court a jurisdiction analogous to that of 
 Admiralty Courts in the United States, ami 
 excelling that of the High Court of Adiiiiiahy 
 in Kngland, I would have no difficulty iu huld- 
 ing that such an Act was ultra vires. I am oi 
 opinion that section 15(5 is not ultra vires. 
 
 Queen v. Flint, V. A. I)., •JSd. 
 
 On an application for a writ of prohiliitiun, 
 the Supreme Court of Xova Scotia 
 
 Held, that the Supreme Court could pmliiljit 
 the Vice-Ailmiralty Court, and that the section 
 was ultra vires. 
 
 Att'y-Oisu'l of Canada v. Flint U (d., 
 
 3R. &(l.,4.i3. 
 
 On apptul to the .'injirtnit Court of Canada, 
 
 Held, intra rirtx. 
 I Cas. Digest, 324 ; 
 
 I 4C. L. T., 117. 
 
 1867, €. », s. 11- 
 
 (Imposes penalty for not affixing tiie proper 
 stamps to promissory notes, drafts or dills of 
 exchange, and declares that for want of tiie 
 proper stamp "such instrument shall be imudui 
 ' and of no effect in law or in equity.") 
 I //. /(/, that where a note had been read in 
 evidence at the instance and <m the motion of 
 defendant's counsel, he was thereby estoppe.l 
 from denying its validity. 
 
 The Bank of N. S. v. Chipmnn, 
 
 ■2N. .S. D.,4as. 
 
 Whore a promissory note is defective for want 
 of a stamp the plaintiff uuiy recover the aniouiit 
 of the consideration on a count for account statuil 
 notwithstanding that the consideration is for an 
 interest in land. 
 
 Fro^l v. Brninan, 3 N. S, 1) , 4i). 
 
 1867, C. 9, s. 12 — 
 
 (Provision in favor of innocent party by whicii 
 the penalty f'lr defective stamping may he reme- 
 ' died by double stamping " as soon as U ncquirei 
 ' such hwwledye.") 
 
 I The plaintiffs, aa soon as defects in the stamp- 
 i ing of the note sued on was discovered, aftise^l 
 ' stamps of double the proper value in open 
 I Court. 
 
180!) 
 
 STATUTES, DOMINION. (LSG7-l.SGy.) 
 
 1310- 
 
 //'/'/, Wilkii'..", J., '/i'-— /(/(';/</, ihiit iiiidef sec. 
 IJ tiny liiiil f-iitistieil the rt'i|uii'ement8 of tlie 
 Statute. 
 
 Tie ltai<kiij' X. S. V. Chijunuii, 
 
 •-'X. s. 1). 4:w. 
 
 Svt BILLS OF EICH.\N(iiE .\ND PKOMIS- 
 
 SORT NOTES, XI. 
 
 1S«1, 1'. 11, s. II— (.ict respecting Bnnks- 
 
 Kxeiiipling the Imiiks fioni any iieimlty nv 
 ("itfitiiie for usury, iiiul iiermitting them to 
 c\iict seven per cent, wlien tlie mercantile eom- 
 iniuiity could only take six. 
 
 ('(infiiseil state of interest and usury hiTs 
 '.■(iiniiiente<l on. 
 
 /i«/-ss V. Slroii'j, 1 N. S. D., 4,")0. 
 
 im, c. 40-MilUia and Defence- 
 
 Tlic Militia Act, Acts of l!Sti8, c. 4<l, as amend- 
 ed liy the Acts of 1S73, c. 40, and the Acts of 
 IsTit, c. .So, authorizes the calling out of the 
 i]iiliti;il>y the senior officer present in any locality, 
 in aid of the civil power, for the purpose of pre- 
 venting or suppressing riots when thereunto 
 rci)Uired, in writing, which ivriting shall express 
 •n the face thereof the actual occurrence of 
 ,1 riot, disturbance or emergency, or the antici- 
 IKitiiiii thereof. When so called out the liability 
 til pay for the services of the militia is imposed 
 upon the Mitnicipality for which sucli services 
 are itiiuired. 
 
 .Several companies of militia in the Munici- 
 piility of Cape Hreton were called out in piirsu- 
 iike (if a reijuisition, which read : " It having 
 lieeii represented to us that a disturbance has 
 occurred and is still anticipated at Lingan, be- 
 VDinl the power of the civil power to suppress, 
 villi are therefore hereby ordered,"' &c. 
 
 H'lil, that in order to make the Municipality 
 liiilile for the maintenance and pay of tlie 
 militia, tlie reipiisition must comply strictly 
 «itii the .Statute, and that as it failed to ex- 
 press nil its face the actual occurrence of a riot, 
 iisturbaiice or emergency, or the anticipation of 
 «iy, but only set out a representation that a 
 ■listurbance had occurred anil was still antici- 
 iwied, wliich representation might have been 
 iijiind on investigation to be unwarranted by 
 '.he circumstances, the Municipality was not 
 liiilile. 
 
 Hi.ad v. The Muitu^ijmiUy o/Cn/tc Bixtoii, 
 
 7R. * G., -260; 
 7 C. L. T., 349. 
 
 On (tiijitiil to the Stiprtmt Court of Canada, 
 
 fid'l, that the re'juisition was sufiicieut. 
 
 llie Statute also provides that the Munici- 
 
 pality shall pay the expenses of the services of 
 tlie militia when so called out, and, in case of 
 refusal, that an action m ly lie brought liy the 
 officer commanding the corps, in his own name, 
 to recover the amount of such expenses. 
 
 H'ld, .Strong,.!., <U-:-<iiilii(ii, that where the 
 commanding officer died pending such action, 
 the proceedings could lie continued by his per- 
 sonal representative. 
 
 Cnirt-Ji'iad v. County of Cujk linton, 
 
 U.S. f. K., s. 
 Xeillier the Dominion ,\cts of 1H6S, c. 40, or 
 of IS7.3, c. 4tj, nor 4tli H. S., c. •_»!, s. oA, em- 
 jKiwer the Supreme Court to amerce a County 
 for charges incurred in calling out the at;tivo 
 militia under tlie iJominion Act of 1873, c. 4(), 
 to (juell a riot. 
 
 /)/ re Ainerceintiit of Cape Breton Co., 
 
 •-»H. &C.,41(). 
 
 1868, f. (to, 8. 23 - (Fisheries Act)-tf.. 
 K. S. C, c. »3, s. 20- 
 
 •■ In other respects the Inns relntintj to siim- 
 nuiry convictions and orders, sh(dl apply to cases 
 under this Act.' 
 
 Hi Id, that under this section an appeal lies to 
 the Supreme Court fiom a conviction for penal- 
 ties under the Act, notwithstanding that sec. 
 1(1, sub-sec. (j, gave an appeal to the Minister of 
 Marine and Fisheries, 
 
 Qveen v. Todd, 1 R. tV C, «•_'. 
 
 1808, c. 60-Cf. R. S. C, c. 95- Violation 
 
 Of 
 
 Ute COXVEMION OF 1818, 
 
 1869, e. 12, 8. 31 - Cf. R. 8. C, C. 118, s» 
 
 35 — (Canada Joint Stock Companies Clauses 
 
 Act)— 
 
 "h'rtry i:outract, tiijrumint, tnijaijunenl or 
 hanjain tnudt, and fnry hill of txchamjf. drau-n^ 
 uccipttd or indorsed, and trery promissory note 
 and cheque made, drau-n or indorsul on hiha/f 
 of the Company, hy any a-jent, ojictr or strrant 
 of the Company, in ijineral accordance with hi.* 
 pon-trs as such under the liy-laics of the Company 
 "hall lie liindimj upon the Company ; and in no 
 case shall it lie n>-Cessary to hare the stal of the 
 Company aMxed to any such contract, aijreementf 
 enijai/emcnt, liarijain, liill of exchumje, promissoiy 
 note or cheque, or to prore that the same wa-t 
 made, draicn, accepted or indorstd, as the case 
 may be, in pursuance of any JJy-lair, or special 
 rote or order." 
 
 See CONTRACT, 31- 
 
 Quaere, whether under Acts 1869, e. \'2, s. 31„ 
 and 4th Rev. .Stats., c. 53, s. lij, the contract 
 there (CONTRACT, 31,) sued on would be valid 
 and enforceable without seals. 
 
1311 
 
 STATUTES, DOMINION. (1809, Ch. 12-lU.) 
 
 \:n-> 
 
 1809, C. I'i, 8. 41-Cf.K.S.l'., f. 11S,8.4'2- gnMiml that liiul iki oxi^ti-iu'e « lit;ii tlioj inlcu., 
 '•StrricK of all inuniar of ■mminviit or n-ril tlii'il' iippeal. 
 
 ii-hatn-tr upon Ih: Comjxiiiy, may '" maih hy 
 liarl,.., u u,-y 'htnof at th< otfiir or chii-j' i<liiiy. 
 o/ hifliuxs o/'ht Com/iuiiy, n-iih any i/roirn jn r- 
 io/( //( rhanii t/i< no/, or il-inrhin: iriffi Ih I'n si. 
 iloit or Stcri-Jnry Ih rtof : or ij Ihi Comjiuiiy fair, 
 no kiioirii ojfin or chiif /ilan of l>ii->iiiis.i,uii(l han 
 no k-iioirn Priiiili.iH or Sirntary, Ihtu, u/ion rcltirn 
 lo thai iftd •Inly iirnd' , thi Court shall onlir 
 .such iiuhliealion as it mayilum niiuisiii lo !>•■ 
 mnili in tht jrre.miM-.-, /or at hast om month, in 
 at lias' oni iii irsjiain r ; anil such /mliltration 
 shall In h'I'l tolii iIhi sirriui ii/ion th< Company." 
 I'liiiiitiff eiitereil on the rucunl a suggestion tluit 
 
 the e'iinuila Iminovenient Company, one of the 
 .lefeniUmts, was absent out of the I'rovinee wlien 
 
 the writ of sumuions was issued, and on tliat 
 account couhl not lie served witli process. Tlie 
 
 suggestion was not traversed, and it was eon- ^j^.^j , .^^ ,^ 
 
 tended hy defendants tliat it liad not been proved ^.^^^ ,^f jj^^jj 
 
 at tiie trial, and tlierefore, that plaintitt' should 
 
 have become non-suit under 4tii Kev. .Statutes, 
 
 ea)). 94, sees. ;U" and .'{.")(), and furtlier, that tlie 
 
 defendant coidd liave been served under ■section 
 
 41 al)ove, nuule applical>le to tliis company l)y 
 
 cap. lUO of 187-', sec. !). 
 
 //I'.ld, that the suggestion if tlie truth of it 
 
 was denied sliould have been traversed by de- 
 fendants, and that the section of liie Canada 
 
 Joint .Stock Companies Clauses Act referred to 
 
 did not enable service to l)e made l>y any other 
 
 than the accustomed otticer, nor l)eyond the 
 
 jurisdiction of the Court. 
 
 //( /•< 7'hos. Arrhilinlil ami Jiiltn Ar'iiilitilil^ 
 Insolri iits, •_> X. s. i)., ;(ii;j 
 
 (Iriijory v. Tlu. Hali/ax it C. li. 
 
 li'y A- Coal Co. tt «/., 
 
 4 R. &(i., 430. 
 
 1800, c. 10, s. '20 and 20 - 
 
 A writ of atlai'inneiit underthe Insulvfiil .\it 
 of IS(i!t iiuving been issued at the iiistaini' dt 
 plaintiff against defendant, the latter, thuiil;iy> 
 before tile return day of the writ, prniinvil a 
 rule nisi to set the attaciiment, the writ .iiid 
 otiier proceedings tliereon aside. The rule wiis 
 taken, among other things, on leading tlii' iitti 
 davit of ilufendant sworn befoie William Aikiii>. 
 designated as a commissioner for taking atiiiliivit.- 
 to lie used in the Supreme Court, CoiiMty dt 
 Colchester, and the affidavit of Joseph Xnniian 
 Ritciiie, sworn at Halifax, ))efore C. M. Xiutiiig, 
 a commissioner of .Supremt^ Cnuit, 
 ty of Halifax. The rule having lieen iiiiidt 
 absolute, setting the attachment aside, pliintitt 
 appealed on tlie ground, among otliers, that the 
 Judge in Insolvency had no jurisdiction tu make 
 the order, that the affidavits were impmiKMh 
 sworn, being retjuired by tiie Act to be swdin 
 by officers appointed by the Court, uml fliat 
 defendant's petition to set aside the writ wa> 
 premature in being presented before the tutmn 
 day of the writ. 
 
 Ill III, 1st. That the Judge possessed jiiiis 
 iliction under section "iO of the Act wIiIlIi um 
 powers iiim to entertain a petition to set usiilt 
 the writ under the provisions of section 'id. 
 
 ■Jnd. That from the mere fact of tlie cciiii 
 missioneis acting, there was a presunii)ti(Jii in 
 favor of their authority which must stand, until 
 Affirmed on appeal to the Supreme Court of .lestroyed by evidence sufficient to annihilate it. 
 
 Cas. Digest, 434. 3rd. That it was left by the Act in the dis- 
 cretion of the party petitioning, wlietliei li-.- 
 Leave lo appeal to the i'rivy Council refused, «<)uld await the return day or not, tiie word? 
 
 Canada 
 
 .inl April, ISS'J. 
 
 Cas. Digest, .')44. l,eing "may petition the Judge at any tiiiif 
 j within three days from the return day nf the 
 ! writ, I'lii not a/tn-iranls." Dom. Act.<, \M<. 
 
 1809, c. 10 -(Insolvent Act.) 
 
 T. A. and J. A. made application for a dis- c. 19, s. 'JO. 
 
 charge in insolvency under the Dominion Insol- Qmin, whether the writ could be .-'et aside 
 
 vent Act of 1869. The principal objection taken until actually returned. 
 
 to the discharge was that the Act applied to T'jie Act providing that the petition is t(i 1* 
 
 traders only, wiiereas the insolvents admitted heard and determined in a summary mamier, "it 
 
 that at the time of its iiassage they had ceased is for the learned Judge to decide what tli.it 
 
 to be traders. Before judgment the Act of 1871 summary manner of hearing shall be, and ib 
 
 was passed, amending the Act of 18(59, so as to regards the nature and etfect of the evidence li) 
 
 include pivrties who having been traders at the which his determination is to l)e governed, jh" 
 
 time of the passage of the latter Act had since viiled it be legal and suHicient evidence, 
 
 ceased to trade. The learned Judge having proceeded hy uidei 
 
 Held, that the insolvents come within the nisi, 
 
 latter Act and were entitled to the discharge, Hi:lil, that the course was perfectly iiiiolija' 
 
 l>ut without costs, they having succeeded on a . tionable, whether viewed in regard to tlie dis- 
 
 Ifi 
 
i:]i:{ 
 
 STATTTTES. DOMTNTON 
 
 IlltUI'l! (if tll( 
 
 (iHoo, Ch. in.) 
 
 l.MH 
 
 CITlillll HO I'M'Icisnl, (IP to till 
 
 liimlc (if |)l'(ic('('(lilij,' itself, 
 
 /.(iiKi V. Fori iiKiii, '2 \. S. !>., ."(4(1. 
 
 IHiMi, c. 1«, s. :t4 
 
 I'luv iilcH (hut tlif iiispcciois " it/iiil/iiiif}friiifrml 
 mill ilirrif llir nsKti/iiie in llic pnforiiiinwv of /ii'm 
 iliilil iiiii/rr lliix Art." 
 
 Nilil, thill llii.s (hies iKit iciidcf the iiiHpoclors 
 liiKIc for the wi'oiigfiil net of the iissij^ncc, in 
 ihc iiliN('iic(' (if (■viih'iici' showili),' Ihal they 
 iiillmi i/cil thciutt (^oiiiplaiiKMl of. 
 
 Ihirhec V. Cor rl «/., :! U. X- ('., 17. 
 
 is«ft, c 10, ss. 3r> and 41- 
 
 S, ."i.'i. " //' (il siirh inn /I III/ till fiisn/rnit shall 
 limb nil nffir nf ■■nmimsi/lnii, ami xnrli ofl', r In 
 niiiiriii-iil III/ till rrnlilnrs, /In 1/ niai/ miih xnrli 
 ■•nhr nx tin;/ may iliim rT/nilii nt, 1 it In r for 
 •»«/" inliin/ tlir ili-K/iosal of thv mliitr ami nil or 
 ninj iiritriiiUmjx li inllmj thiritn, for mirh timr at 
 mij III Ji.riil III/ sm'h mritimj, or for any olln r 
 
 lUll'jltlSI'/' 
 
 f>vr. 41 j)rovirlc.s for salo hy assii^iicc, with 
 ■iiiitiiiii of (!voilit(ir.s. 
 
 W'licic Il\n iiiKdIvciit was allowed Iiy the assij,'- 
 iiic, acliiif,' at the re(|ue.st of the creditors, to 
 nsniiie possession of the estate and to sell it 
 I"!' llie lieni'tit (il the ereditor.t, 
 //'III, that the assij,'nee still retained the right 
 I iHdperly in the ^stat(^ 
 
 /farni/ v. Ooltrr, :i N. ,S. I)., |(il 
 
 lSfi!», 0. 1«, s. ;{« Notice! by nsslgiieo of 
 
 li^ appointment — 
 
 S" INSOrVEWY, .W. 
 
 ISflO, C. 1«, s. .M - 
 
 "/'/«)» //)( xjiiration of tin jxrloif nf om 
 milh from tin Jirst hixirliou of the adrrrlixi- 
 ai'K'f ijiriini noliri of tin n/ijinintnnnt of an 
 iiimr, nr as soon as viai/ In afti r/ln (r/iira.tinn 
 ''! mi-h iiirioil, anil afli nrarils from /inn to timi 
 ■I' iiilirmis of not ninri than thru months, tin 
 "I/"" shall iiri /lari ami bi /i ronstantlij arrrs- 
 ■■Ut In ihi rriilitors, nri'nuntx and s/a/rmtnts of 
 iii'itniiiiis as siirli assiipnr, and of Ihc position 0/ 
 '■'• '1I11I1, ami nt an;/ similar intirrnis shall /in- 
 i«rt iliriiliinis of the rstati'. of tin insolrrnt." 
 II' III, that, it waH not the nieanini' of sc(.^ ">."> 
 w no dividend could he dculared until uftei' 
 111' I'xpiration of three months from the ap- 
 "mtnieiit, of an iissigneu, Imt that a dividend 
 "light 1)0 di'clared at the end of one month, 
 f I'ie assignee had fund.s. 
 
 In ri Tnrkir, '1 N. S. 1)., .W). 
 
 ///(' amount of awijudijinonf dphl, or of the i^ifprest 
 thereon, In/ the initno or ilrlircri/ to the Stheriff nf 
 unij writ of e.reiutiim, or hi/ leri/itir/ n])on or 
 seizimj luidir such writ, the vflectn or estate tflhr 
 Imtolrent, if In fore the /uii/nieni orer to the jilnin 
 1(11' 0/1 f"' iiiimri/K inlnallj/ leried nmler xnih writ, 
 the enlale of the delitor nhall hare heeii (ntKianeil to 
 an interim asuii/iiee, or ahull hare been /dm id in 
 eom/inlsiiri/ lii/uidn/mn under thin Art : hnt thii 
 /iroriiion xhall not njfeel tin;/ lien or pririlet/e 
 aiqnired hefoti the /nmfiini/ of thin Ait or ani; 
 pririlei/e for routs which the /dnintiff /mssesses 
 under the liw of the I'rminre in vhieh smh writ 
 shall hare issued In/ r-'iison of snrh issue, delireri/ 
 levj/ or Seizure." 
 
 This section is intra rires the Dominion 
 I'Mrliameiit. 
 
 Kinuei/, Assii/nee, v. Dndmnn.-l 11. k V., Ml. 
 
 isflft, c. ifl, s. m - 
 
 " Xo elaim or /inrt of a r/aini shall In- /irr- 
 mittid to lie ranked n/mn tnnri than nnei , irhithi r 
 the elaim so to rank In maili In/ /hi sann or to/ 
 ilijl'i rent /iirsnns," 
 
 Plaint ilFs were holdci's of a ni>U\ made liy 
 II. ('. Si Co. and indorsed liy .M, li. & Co. M. 
 II. it ("o. liecame insolvent and ellected a com- 
 position at fifty ccnlH on the dollar, indiuling 
 their indorsement for R. V. Ik Co. R. C. .t Co. 
 also lieconiing insohent, the plain! ifTs sought to 
 IM'ove against their estate for the fidl amount of 
 the note. 
 
 //'/'/, that tlu-y coidil oidy prove for the lial- 
 ance after deducting the composition riH'eived 
 from .\I. R. .><: Co. 
 
 Hunk of Hrltish Xorlh A mi rien v. Ilarrnj, 
 
 .'f N. .S, 1)., 4111. 
 
 1S«9, 0. 16, 8. r.«- 
 
 'A()//(» or pririlei/e upon either the personal 
 '•"ml estate of the lusolmd shall hs created. lor 
 42 
 
 ISOft, c. 1«, s. 01 - 
 
 " Clerks and other /wrsons in the em/dot/ of the 
 iusolreut in and altont his hnsitu-ss or trade shall 
 he eolloeated in the dividend sheet, hi/ special priri- 
 kf/e for any arrears of salary or wayes due and 
 nn/niidto them a; 'he time of the e.iecution of a 
 deed of nssii/nment or of the issue of a writ of 
 atiarhmeut under this Act., not e.rceediny four 
 months of such arrears; hut such pririleyrd 
 amount mni/ he inerea.ted hy order of the credi- 
 tors " 
 
 Field, thai a elerk and two employees who 
 had left, or Iteen dianiis.sed from the service of an 
 insolvent, sixteen, twenty-one, and thirty-live 
 months respectively Ix^fore his assignment, could 
 not. be collocated on the dividend shei^t liy 
 .special privilege for arrears of salary and wages. 
 In re Estate of Mitchell, Insoluetd, 
 
 2 R. it C., ;{7!). 
 
131 T) 
 
 STATUTES, DOMINION. (ISfi!), Cii. l(i-10.) 
 
 i:n(i 
 
 180W C U\ 8 W'2 — iniiiiiiiiij iif thv pntvinitim o/ t/im Ad in tlmi 
 
 " Anil pi'isim ir/io purihasen i/uotl» o)i credif or hilinh\ ahull Iw null und roiil." 
 prorur'cs mlrumcH in niiuwi/Jaiviriu!/ or hrlirviuij WIumt llif, phiiiililV, to a pl.si d .lisclianj,. 
 /liuinvirto Iw luuihl,' lo mvvf //M t'ui/ui/rmrnl.f, ami im.lcr tlu' Insdlvfiit Act.of l,S(i!t, irpli.d WvM l|„ 
 conrvuliwillivfuct from the. prrMU llivrvlni hvconi- ,lis.liaij,'c l.ad Ikt.i .plilaiiir.l liy fraud, 
 hui hix crvilUor. irilh the inleut lo <lvjruu,l surh IIM, thai ll..' ivi.li.ation was -,h„|, ,.,..1 tli,,i 
 lwrm,,or u-hohyumi /uhc /nelnurohluinK u l,rm llic .Imluf who tiicl the .aiis,. h.u\ iiiis.liirri,,! 
 ofvrc'lif lorlhv fmiimrnl of urn/ uilrumr or loan \hv jiiiy in inslni.lin- ihcin Ihal ih.' ,|ih>ii„n 
 
 ofnumoii^or of Ihv price ormu/purfofthvprirr^i fiau.l was (mly for Ih.. Co.iil tl huuA 
 
 of ami ;/<Ws, vmmor merchmulisi; with intent to , \hv. .lisuliai'«iN and .■■mhl not he hioiiuht u|. ,x 
 
 ilefrauil the person therehij heroinim/ ln» vreilitor. \ ci'])! I.y appeal. 
 
 and irho shall mil ufterirarth hare puiil the dehl 
 
 or dehlKsu iwurred, shall he held to he iptdtji of a 
 
 fraud, and shall he liahle to imprisonment for 
 
 surh time as the Court mail order, not e.ieeidim/ 
 
 tUulkiu V. lieerh, I I!. \ ('..•JCI, 
 
 \m% f. i«, s. 12a - 
 
 ,\ Coiiimis.sioiu'r for takin;; allldavils, itc. 
 
 suili tune as (he Loun niai oiiiei , ii'K ':>>'• '"•'•! , . . ,. 1 1 i- n 11 
 
 , , ,. ,1 ,. ,.„.w . w 10 s ni I'lactici', am awlidly nMoj,'ni/((l I 
 
 /uo i/ears uii ess the deht or costs he sooner uiul;'''"" '"I •' . ." , 
 
 and if mch debt or dehls he Incurred hij a part 
 uership, then event vieudier thereof irho shall 
 hare known of the incurrini/, and of the inten- 
 tion to incur, such deht. ordehts, shall he similarlji 
 liahle ; provided always, that in the suit or pro- 
 ceedimj taken for the recorerij of such deht or 
 debts, the defendant he charijed H //// such fraud, 
 and he declared to he iiuillii of it hii thejudiiment 
 rendered in such suit or proreedimj." 
 
 Held, unnL'(os.saiy to allege, in proceeding.^ tor 
 penally under tlii.s .section, that Ihe defendant 
 wax insolvent within the meaning of ihe Act. 
 
 Jfarrliiijlon v. ir(V/( ,•, '2 K. >V ( ". , :U-'. 
 
 l-'or a count drawn under tiiin Mcelion, and 
 hold had on demurrer. 
 
 Sec BILLS OF EX€I1AN«E AND PROMISSOKY 
 
 NOTES, IX., «. 
 
 18fi«, c. 1«, ss. 91 aiHl 101- 
 
 //-/(/, that the insolvent if he saw lit might 
 waive sec. 07 and procc(Ml undi^r si'i^ Mil. 
 
 In ri Tiirhr,'2 N. S. I)., :{IM). 
 
 A. 1815, ('. 1«, s. 5«. 
 18«», c. 1«, s. «8(liisolvciit Act)- 
 
 Ililil, that the s\ipi>lenientary list of creditors 
 anlhoriy.ed hy .section !tS nuist he as full and ex- 
 plicit in the information furniMhed hy it as is re- 
 c|nirod in the original statement or schedule. It 
 ninst allbrd the information renuircd hy form 15. 
 KnanI v. Spouwili <> al., 1 11. \' <i., l!•■■^• 
 
 I the. Court as an ollicer legally exercising a fun 
 tioli so important, is within the meaning of lln 
 words of section I'J.'l, "A ('oinmissionti up 
 pointed hy the Court.'" 
 
 Lami V. Fori mini, '2 N. .'^. 1).. .'illi 
 
 18«», c. 1«, s. 108- 
 
 " l-Jrerji consent to a dischariie or compusiUon, 
 and everii diseharije or conjirmation, of any dis- 
 chartje or composition, which has heen ohtained 
 hi/ fraud or fraudulent preference, or hy means 
 of the consent of any creditor procured hy the 
 pai/menf or promise of payment to such creditor, 
 of anil miluahle consideration for such consent, 
 or hi] any fraudulent confrioance or practice 
 whatever lendiny to defeat the true intent and 
 
 1800, ('. 1», 8. 20 iX. I{. S. (' UW, s. '2!» 
 
 " W'ho'iOd-i r foriji s, or alli r<, or o/A' />, /i"u-. 
 
 ilinpnii.x of, iir pnl-tojf, hnoirlmj I hi -oiiik Ui I« 
 
 frtriji d, nr nlliriil, anij niid.i rliihiinj, inirranl. o/v/i , . 
 
 onthorilji, or r<<iiii«l, for thi pnyim nl if nKmnj. 
 
 or for Ihi ihlinry or Iraiisfr of nni/ ijiunl" m- 
 
 chiit/ils, or if innj note, hill, or olhir sn-nriiii/i'i 
 
 llii piiynniil if nioinii, or for pronirinii or ;ii'-iii;i 
 
 erulil, or iinij iinlor"! im nl on or ii'^iiiiininil I'l 
 
 anil vK.-.'i iinilirlid-inij, irnrrani, oril< r, iiiilhiinlii. 
 
 or rnpiixl, or any arnii iilali/i rinipl, iiniiiilt- 
 
 unci or rieilpl, for mom y or for iiond-i, o<- jm 
 
 any noli , tiill or ollur simrlty for Ihi piiiiiiinii 
 
 of mom y, or any inilorxi mi nl on or f(.-.<(;//iHioi' 
 
 of any such ai-ronnlnhli ricii/il,iir nny innmiii. 
 
 Iiook or I hi III/ irrilirn or prinlnl or o/Zuc/n.. 
 
 miidi ciipnlili of In imj ridil, n'ilh iiili nl, '" "".'/ 
 
 of tin rnsis ((forixaiil, lo difrand, is ijii'iHil ".' 
 
 filony, ami shall In liidili to hi iinprlionnl in ili' 
 
 I'l niliuliary for life or for any U rm mil hs.i Ihiii, 
 
 tiro yiiir.i,orlo hi inipri<omil in any oUnr i,i»f.l 
 
 or plan of rohfm mint for anil li rnl h ss llm 
 
 tiro yiart, irilh or irilhoiil hard lidionr, innl m'li 
 
 or irilhoiil sniilnry ronfnemml." 
 
 Defendant was found guilty on the Hi si uii.l 
 third counts of an indictment, the last .1 mill "I 
 which charged him with uttering a forgcil ""i 
 dt^r for the payment of money." The cviilcin' 
 was, that the defendant forged the uaiiicnf U 
 McK. on the hack of a cheijuc drawn payaMH' 
 W. McF. or Older, and ohtained the jinninl-. 
 which he ajijiroiiriated to his own use. 
 
 //(/</, that the cIkhiuc, when iiidoisc.l, 1» 
 came an " order for the ])ayment of niuiiey '' 
 any one who should present il, ami tlwil 'I" 
 conviotion 011 the last count was siistiiiin''! hy 
 the evidence. 
 
1317 
 
 STATUTIiS, DOMINION. (ISO!), Cii. 20.) 
 
 i:{|.s 
 
 .McDuiiiilil, ('. ,),, ;ni(l Weiithuilie, .J., iUsm nt \ 11,1,1, ilmt the intention ni.iy W iiifiriid Inmi 
 
 Till' lii'Hl c:i)iint cif till' inclic'tnicnt cli.ifijt'il 
 ihr (|i'fclii|;inl Willi iiltcl'ini,' a t'()rj;c(l cln'tnic. 
 
 //'/'/, tliiit tilt! (loiiiit wan not Hlistiiilifil liy 
 |irciiif of t'or;;cry of the iiKlorMcnii'iil, ami that 
 !lii' iniivifticiii on lliirt roiiMl must In: set aNiili;. 
 
 A i|iicstion liiiviiii; liciii laiscd at tin; li'ial, liy 
 IciiHiirii, as to tlif |(owci' of tlio Coiiit to try 
 .11- iiiiivict the licfi'iiilaiit for anolliuf oH'oiici! 
 lliali llial for wliiiOi hi' was cxtraditiMl, and 
 hiiviiii,' licuii ilci'idtid liy till' ])icsidin^' .liid;,'u 
 !.;.iiiist llio ilcfciidani, 
 
 ll'I'l. that it wan too iato to laisf tliu ihium- 
 imii, liy ease r(;.s(trvod, for tin: full ("oiiit. 
 
 ','""" V. Uiiiiiiiinjliaiii, li K. it (i., ;{l ; 
 
 (ic. h. r., i;{<i. 
 
 Oil iiji/Ha/ /i) /III Sii/in nil Court iij' C'luiinln, 
 
 //ilil. III r jAniiniur, lltniiy, and 'rasrlu'ivan, 
 I.I., (Ititrliif, ('. .1., and Stroiij,', .!., i/i.ssi nlinii), 
 lliiU rvidtiiii.; of tint iilt"liiij,' of a foi'i,'fd iiidoi.su- 
 mciit of a ni'^otialilii l'Iiui|UI' or oidm' is iiisiilji- 
 n?il to sustain a uonvictioii on a count of an 
 imlictiiH'iil L'iiai'i^ing tliu nttci-iiii; of a f(irL,'eil 
 ilii'i|iR' or (inU'r. 
 
 (Ill llii; sfcoiid (jucslion ri'survcd, wliiili was 
 ■wliillicr tliu uvidi'ncu on the part of tlu; Cidwn 
 1- Mitlicirnt to sustain (I conviutiiin on the liist 
 ml lliiid loiints of thc! indietiiient, or on oilhei 
 ■llliiiseeoiints," the judgment of the Couit lielow 
 ■lioiiM lie reversed, and the prisoner ordeied to 
 !'! iliscliarged. 
 
 /''/■ Kitchie, ('. .J. — The ((iiestion raist'd hy 
 'inMliniiurrer was not pioperly liefore the Court 
 "II ii|i])eal, the Court helow having lieeii uiiaiii- 
 iimus with ruspuct to it. 
 
 I'll- Strong, .1. — Thc Court lielow rightly 
 iidd, (111 tiic authority of A', v. Faili rmini. Den. 
 '■ ('. ."iT'i, that thc ijucHtion raised liy thc 
 Miiui'ier was not properly lieforc thc Court, 
 'lif .ludgc at the trial having given jiidg?ncnt 
 n till' demurrer, overruling it at the trial. 
 ^I'lreiiver, tlicre was nothing in the law inider 
 ■fliifli thc prisoner was extraditcil to prevent 
 
 iio ('unit from trying him for any oU'encc for 
 I'll lie was, aecording to thc law of thc Du- 
 'mm\, justiciahlc before it. 
 
 Aplieal allowed. 
 Villi /( V. Cuiuuiiiiliam, llilli Mntrh, /SSo, 
 Cas. Digest, l(»7. 
 
 the 
 
 <,hlnii V. Ai />it«^ , •_' N .S. I)., Mil. 
 
 W9,c.'2«,R.lI-Cf. U.S. C.,c.l«a,s.l3- 
 
 " H'hiK ri )■ niilairj)(//i/ ami, iiKt/irioiis/i/, liy fUii/ 
 "fii" irliaf.'.mrri; iroiniil'<, it-i:, irllh iii/i nl . . . 
 '' "I'lJW, i/isjii/urc or disahli aiii) jiirwn, or lo 
 
 > <oine olhc.r ijrktroil-'i hoilili/ harm, .... is 
 !''>"y 0/ felony, and shall lit liahk," .t-c. 
 
 inm, c. w, H. :{» ir. k. s. i., v. tm, s. ;<i 
 
 *' Whusoi nr iis.iuii/Im any . . . juaci ojlin r 
 III I hi iliii I xiciili'dii (>/ his ilii/y iir Us- 
 
 ^iiiills any jiirsoii irilh iiilml hinsisl ur /in n ii/ 
 till liiirfiil n/i/in hi iisiiiii iir ih /aim r nf hi nisi If ur 
 of iiiiy olhi r jii I'soii for iiiiy ofi iin is ijiiilty of a 
 niisilr.nii Hiiiii; ami ^haU In liiilili ," itv. 
 
 Ifilil, .McDonaM, C. .!., and McD.inald, J., 
 ilissi ii/im/, tiiat a " eonstalile," though serving 
 civil process, came within the meaning of thc 
 words " peace oIliciM," 
 
 V""" V. Laii/ ., 7 U. iV <;., I ; 
 7 C. L. T., TiO. 
 
 tnm, c. 20, H. .IS IT. It. s. €., f. m, h. 4 - 
 
 liigamy made a felony and luiMishmenl pro- 
 vided, with the following proviso, among others : 
 " I'niridi'il I hilt nothliiy in lliiii mtHuu shall 
 I'llrml ..,./<) any /arson niiirryinif a 
 svcuml linic whose husbaml or wife has been con- 
 tinually absent from such jwrsoHfov the s/xice of 
 seven years then lust /last, and was not known by 
 such /lersoii to be liriny within that time," etc. 
 
 (jhiesfion snlimitted for opinion of the Court ; 
 Whether the piesiding .Judge rightly instructed 
 thc jury that the evidence adduced on thc trial 
 of the prisoner, who was indicted for liiganiy 
 in marrying one (ieorge Carr, in the lifetime of 
 hci' hnsliand, William Deliay, did not raise any 
 presumption of thc death of Deliay, and that the 
 ]iii.soner w;is not aware when slu: married Carr 
 that Deliay was living. 
 
 t)n the i)art of tlie |)roseoution Deliay was 
 liroveil to have lieen s(!cn in the United States 
 after thc second marriage, ahout three weeks 
 liefore the trial ; and on the part of the defence 
 that eight years liefore trial the prisoner and 
 other husliand separated, he having turned her 
 out of doors, and never lived with her since. 
 
 Held, that the al).sence contemplated hy the 
 Statnte is not necessarily an ahsenee from the 
 country. It is sullieient for the prisoner to 
 prove the ahsenee of Dehay from her, such an 
 alisencc as would lead to the inference that she 
 did not know of his residence, and whether he 
 was alive or dead. 
 
 Held, that an ahsenee of this kind wa;s shown 
 in this case. At any rate such evidence was ad- 
 duced as shoui<l have lieen left to the jury, and 
 from which they certaiidy might have found 
 such an absence. 
 
 Held, that the burden of proving that prisoner 
 knew of Debay's being alive during the seven 
 years was on the prosecution. 
 
l.'il!) 
 
 STATUTKS, DOMINION. (lH(i!M.s7l.) 
 
 vcniirl. Tilt' ilcchiraljiiii iiiiiliiiiiiil mily iiii( 
 I'liiiiit fur an iiKMiiill iiml falsi: iiii|ii imiiiiim ni, 
 while two iliNliiiii auMRiilt.H wcic |iicivi(l .ii 
 the tliiil, till- .si'i'iiliil lii'ilij,' the niic i iiiincilid 
 witli tlu: iiii|ii'i>4i>iiiiR:nl lUii'laicil <in. 
 
 Ililil, llial this \sa« a fatal (ilijfrliiiii, I In 
 
 llild, liy all till' .Imlj^iH, llial the i-.invii linn 
 liitlHt III: <|iia.slR'il. 
 
 (jiu.in V. Aiiiiii Jtiliiii/, :i N. S, l»., ."iK). 
 
 IMW, c. 21, NN. 3 iind 110. IT. K. M. Cm 
 
 c. 1G4, H. 4. amlc. 174, h. 2U1 - 
 
 S. ;». " iniii^iii ri r liiiiin a l)ui/< I, qfuiiy rhntli I, [ plaint ill' not lifinj{ at lilnity to waive the ;i,-.>,uili 
 111111111/ or idhuildi s, niri/i/, j'rainlii/i iilly /akis or ^ liint proveil, ami n'wt; e\ iilenee of anotlii r. I'l, 
 roiinr/s llii saiin Ui his on-u iim or Io /In ifi of 'li'i' Mom. Stat., ;»•_' and .'U Vie., e, •.'!!, ^. l;;:', 
 (1111/ /II rwii nlhi r Ihitn (hf oirmr tlu riof, ulihoinjli 
 h< ilo tiot firiiik liiiJk or olhirn'ixi ililiriniin tlu 
 liailmiiil, l-i iinillij of larrtny, luiil may hi ran- 
 rir/iil Ihiriof n/iim mi liiih'rhin ii/ /or /ari'iiiy: 
 liii/ this sif/ii-ii shall 111)1 ix'iiiil Io any uji iin 
 /mnlxhnlili. on stimniary roiirii-lion." 
 
 The piisdiier liavinj^ piekeil up eertain ^'oihIh 
 that hail lloaticl away from the wreek of a 
 Htuiunur, approi)iialctl them to IiIh own use. 
 He waH indieted for laieeny, the propeity in the 
 gooiln heing laid in the captain of the steamer ; 
 1ml at the trial the .Inilge instnieteil the jmy 
 that they eoiild not eonviet him of larceny. 
 'I"he ])iosecutioii then claimed a conviction for a 
 mi.sdemeanor, and the jury found accordin>,'ly. 
 On a case heini^ le.sefved fof the full Court, 
 
 Htlils Wilkins, J., ill.i.ti ntiiiij, that, uiulei'secs. 
 
 3 aiul 11(1 of the Larnny Aii,\\'l and 3.'} Vic, 
 
 chap. '21, the conviction must he sustaiued, and 
 
 that although the oirence was prolialily com- 
 
 milted at sea, the Court had ftdl juiisdiclion in 
 
 lilt! pi'cniiscs. 
 
 V'-e)/. V. Mar/ill, li N. .S. I)., P_»4. 
 
 lHUi>, V. 21, s. m (KvNtltiition of stolen 
 
 property) Cf. R. S. C, e. 174, s. 250 - 
 
 Dofcudant was convicted of having received 
 certain jilatcs covered with amalgam, stolen 
 from a crushing mill, knowing them to have 
 lieen stolen. An application was made hy the 
 Napier (lold Mining Company for restitution to 
 them of a bar of gold extracted hy <lefeiulanl 
 from the amalgam. It hoing uncertain whelliur 
 the Company, or one SlialFer, were the parties 
 properly entitled to the gold, it was r)rdered 
 that the gold 1)u handed over to tho Company 
 ami .Shalfer on their joint receipt, or to the Com- 
 pany with the sanction of Shaffer. 
 
 Qiiveu V. n/atk, li N. S. ])., li.'U. 
 
 1869, c. 2», 8. 1»2 -Cr. K. 8. C, C. 185, 8. 3 - 
 
 " In any such aclioii /lit ili'JhiilaiU iimy /iliail 
 /he ijiuiral issue, and ijirt /his Ar/ and /he s/ie- 
 cial ma//er lu emdcncv a/ any /rial to he had 
 thercxqiou. " 
 
 The plaintiff having heen arrested on view, 
 and imprisoned hy defendant, a ]>olice conslahle, 
 and his superior ofiicer, brought an action of 
 trespass against the former and recovered a 
 
 tlu^ defi'udant being a suliordiliale pnliic ullin i, 
 may give evidence to show a justilic'alion iimld 
 the conmuiml of a superior odici'r witiiuui |ili,i,| 
 ing justitlcation specially. 
 
 I'< l'l"J ^'' ''''"""i I l^. iV.('.,.'fl 
 
 I8(m, e. :iU, N. 15 cr. K. S. I'm I. Ill, 
 
 8. 68 
 
 in order to estreat a recogni/ance taktii iiinlii 
 cap. ;I0 of the Dominion Act of l,S(i!l, all tliat i.- 
 rci|uii'ed is a certilieate from the proper olliar 
 (under sec. 4."i of the Act) that it is forfcitnl. 
 Upon that rule nini is taken ruil on atlidav its ci 
 the facts, and if no cause is shown, judgiuwii 
 follows, but without costs. 
 
 I'lactice in the (iuein v. T/iuiiiimin, 2 Tlimii,, 
 
 !), allirmed. 
 
 ()aveti v. Jlirkintin, .'I U. i\; ('., v!.J.'i, 
 
 isou, c. ai, N. Id cr. k. n. c, c. iiH,s, 
 
 48 - (Summary Convictions Act) (Jiistiw 
 may adjourn hearing, " Im/ no such inljiiiiiu- 
 nil n/ shall In for mon /haii. one inik")~ 
 Is not intended to prevent more than cine iul 
 journnu'iil, or, if so, thai a witness, who ImIiil^ 
 an aclioii for a.s.saidl against the conslaliK' wlin 
 arrested him under a warrant, he having faik^ 
 to obey a sinnmons to appear as witness iit i 
 trial for the violatif)ii of the Caiiiida Teuipcniiia 
 Act, cannot in such action raise the olijiiiinn 
 that the trial, to testify at which he w.i.s ane.-t 
 ed, was a.djourned more than once. 
 
 Mesnem/tr v. I'arhr el aL, (5 U. & (i., -•>'; 
 
 (i C. L. T., 411 
 
 1811, C.5, 8. 11 (The Banking Act, isil 
 
 Cf. R. S. C, c. 120, s. 39- 
 
 "77tc IJaiik shall always hold, us n^arhj ■!■ 
 may he /tract ieahit , oni-half of i/s oish n-^u-r" 
 in Dominion, Notes, and the /iro/ior/iiin oj •««'* 
 resnrres held in Dominion yotcs shall ntni-l' 
 less than one third then of." 
 
 Tho Local Legislature has authority to kuA 
 a law imposing a tax on the Dominion notes hiH 
 by a bank as portion of its cash reserve, umlff 
 the Dominion Act relating to "IJanksamt Hunk 
 ing" (.'J4 Vie., c. 5, s. 14), and under Hit '') 
 laws of the Town of Windsor audi property tfi' 
 
l.'Sl^i 
 
 STATIITKS, DOMINION. J.S7I 1874.) 
 
 IM22 
 
 ImI'I I- I" |.in,„.,iv n„lu.U',l l.y il.u a„H,.«m)rs ii. |Nj;{, «.. |j>, s. 'iO, rcpnilN Al1» of Noia 
 
 iliiii v.iluiiliiiii. 
 
 /'/)(■ 'I'oini III' n'iiii/siir V. /'/iri'nniiiiirriiit 
 
 Jliin/i of W'iihlAor, ;t 1{. \ (I,, I'jo, 
 
 ISIl, f. .1, N. I»- 
 
 " .Vk (is.^iiiiiiiii III ((/■ Iriiiixj'i r ■ifial/ In ni/iil. iiiifi .is 
 
 il III iiKlili mill i-iii'ish rill mill inn /i/ul hy III, I 
 l,niii/ III ii/iiiiii i/n iriiiiMji r /> ininli , //, n l„j(,{- ,„■ ' 
 'i(iii/,w III III hill liji Ifii i/iriiiiirs/iii- I lull /mr/iosi^ 
 
 SiMiliii, isdt, ciii, ,S| (lliililiiv City Cli.iiur). 
 
 Xl'CN. l.'lK, J."»l \ |,V_' Wllilll Mil! ill/Ill. 
 
 Till (Jiiil of I/(ill/a.i: V. Ciiiiniiiiiliiiiii il iil,, 
 
 7 W. fii-., II. 
 
 1S73, c. I'itt, sees. Tii imd .i» IT. K. S. ( ., 
 
 I'. 74, HM. 52 \- 59 
 
 (Ac'liiiii iH'fiirc .Mii^'iKiriili; tdiscaiiiiiii'.i uii;,'iN) 
 
 V' I'KKTIOKAIU, -il). 
 
 '((('*/ fill /Il rtoit or /Il iMiiiiM iirdiiii) llii miihi 
 'linll.il'niiii!i;i/li!/l/iil„ni/,;/i,;riou.^l!/ii;ir/iitri,,\ ISW, €, Vi% N. Sii (MllkillK OfdCr Of 
 
 nil il, Ills III- linlii'lllii.s iliii III/ liiiii^ III I- ur I hi III to 
 'II' liiiiik, irliirh 111(1.1/ I .iriii/ ill uiiiiiiiiil llii ri niiiiii- 
 iiiij Jiiik\ if mil/, III liiin/iiii/ lu Miir/i /Il rsijii i,r 
 
 //K'.iOH.I. " 
 
 •V" BANKS, i(», II, 1-2 fc \:i. 
 
 ISIl, f. 3, ». 58 If. R. 8. t'., c. 120, Ns- 
 
 70 & 72 - 
 
 (Liiiltility of .sliiui'lioldi'in in cusf of iimulli- 
 I'icMcy of iisHiits to iiicci lialiilitif.s ; culls on 
 sliiiniiolilur.'i,) 
 
 .All iiulion wits la'oiigiit hy the pliiintifl" luink 
 iis iis.sijrni'u, uiiilor Ihi! lii.solveiit, Ata of INT."), of 
 tlio liiiiik of I.iverpool, :ij,',iiii.st tlic ilffiMidant, 
 f'lr a rail of l(K» piM' ci'nt. on lii.-s stork in tlif .said 
 lliiiik of Mvcrpool. 'riic' oidy uviduncc of tliu 
 iiiiiklMf,' of thf call wa.s a notico pul.li.siiud in lliu 
 HtKilii of ihu I7t-li of .January, and foll(.\iing 
 ixsilL's, a« well 11.S in tliu loi'al |)api;i'.s dated tlu; 
 H'lli of J.innary, liy uliicli a nunilii'i- of eall.s 
 Muc niadi', payable at intervals. 
 
 Il'lil, that the ealls eonld not all lie legally 
 iiiuilf at one time, and none eould legally l)e 
 miiilc 1)111 within ten days after the expiration 
 'I' .SIX months from the siinpension of payment 
 li,Vllif l)ank. And further, that in eompiiting 
 till' statutory intervals between ealls, the time 
 "iiist lie reekoned uxeliisively of the day on 
 wliifli the previous eall was jiayalile. 
 
 /'■(■ Weathorhe, J. -That the ins<ilveney of 
 llif Liverpo(d IJank and the insiillieieiiey of 
 main shoidd lia>e been alleged, and further, 
 tliMl a eertilieate of the County Coiirl Judge, 
 il'lir the alleged making and notiee of the ealls 
 •tlHiiving of the plaiiititF bank .so acting through 
 i"t'ii' eashier, wiw not a siitlieient uoinpliaiice 
 «itli.see. (I, e. ;il, of ;{<) Vic. 
 
 /'"• .McDonahl, ,1. -That the declaiation was 
 ^iiliitienl, but the ealls were irregular for the 
 ii'iWon.s above stated. 
 Tli'. Hunk of Norn Scotia, Amii/nu, v. Forhix, 
 
 4 U. it (i-.-JiJo. ! 
 
 1873, c. 46- 
 
 Sec 1868, C. 40. 
 
 Jiid(,'L', &i!., final.) 
 
 This see'ion held not to lake away the juris- 
 diction of .Supreme Court by \\ay of certiorari. 
 Jliwnt v. Jliirt, ti K. it (i., •»'.•; 
 (iC. L T., 140. 
 
 1S74, c. 10, N. » tf. K. 8. I'm c. », ». 10 - 
 
 " ..Vo/Zri iif till /in Ml iitalinii iif (I /iitilioii iniili r 
 this Alt, mill ()/' Ihi SI iiirili/, iirrniii/iniili il irilh (t 
 ri)/ii/ n/'lhi /iitilioii, shall, irilhiii tin iliii/s ii/ti r 
 Ihi ilay oil ii'hiih Ihi /iititiini shall hnn In i n /m ■ 
 siiitiil, or irithiii till /in srriliiil liiiii', or irilhin 
 siii-h lovijir timt as thi Court, or aiii/ Jiiili/i thi ix- 
 (if, llKliJ, mull r sjii rial rirniiiislmiris or illjllriilli/ 
 ill. ijlirtiini .sirrio, alhiir. In ^irnil lnj Ihi /idi- 
 tiiiiiiruii thi ris/ioiidnit or n s/iomli nls. In rasi. 
 SI rrin niiiiiiil In iffirlul on tin n s/ioiiili lit or n ■■■• 
 /loiiili Ills, I iihi r /iirsoiiitlli/ or lit his or thi ir ilmni- 
 rill, irithiii thi linn ijrmitnl lii/ thi Ciiiirl or 
 .liiiliji, thm it Ilia;/ III ijl'irtnl n/mi siirh nthi r 
 /Il rsoii, or ill siirh otlii r man in r as thi Cinirt or a 
 Jinli/r, on thi a/ijiliration of th' /n titioin r, ni'i;/ 
 a/)/ioiiit." 
 
 S'l. ELECTION LAW, II, bs, •-'.•J^ '-'1. 
 
 1874, c. 16 TranNrcr of Windsor Braiuii 
 
 to Western Counties Railway Company - 
 
 Sec RAILWAYS, •-•! iV •-'•-'. 
 
 1874, c. 45 IT. R. 8. t'., c. »J>- 
 
 rii'.intiir, an inspi!ctor of pickled lish under 
 e. 4."> of till' Dominion Acts of l,S74, brought an 
 action to recover from the de])iity inspector the 
 cost of le-inspecting lish improperly braniled by 
 the deputy, and the ditTerence between the 
 value of the lish as determined by the deputy 
 iiisi)eetor, and the value as ascertained by the 
 re-inspeetion, which amounts the inspector had 
 paid to the purchaser of the fish, 
 
 Hilil, allirming the deeisir)n of the County 
 Court, that the inspector's rjnly remedy as to 
 the difference in valuation was on the bond j)ro- 
 vided by the .Statute to be given by the deputy 
 inspector, and the cost of rc-inspcction, which 
 the County Court Judge had held to bo recov- 
 
]'.\'2'.\ 
 
 STATUTKS, DOMINION. (IM?:.. Cii. 1(1.) 
 
 I. •Ill 
 
 oralili', Initio mill. ■!• .•<".'ii, iliil noi lniiiL.' ilic (■.!«■ \Vilkiii.-<, . I. ,'/'"' »'»»;/. 
 
 williiiMlii' jiiii-iiliiijciii 111' III.' ('mill, //'''/. ili.ii '*<■>■■ l'»l "I III'' lii>"U.iii .\.i u| 
 
 Hi/illi V. //(Ml',,, ;| I{. iV ('., ."iil.'>. |S(i!» III4.I.' il illl|i.'l llivt 111.' ('.Mill Ik ii'Iiih 
 
 llic .liMi'lmi';(i'. 
 
 Ill rt A. Miiiiii'!/, hi-n'rnil, '_' I!. >\. ('.,,'i(;;i. 
 
 |H7.'i, c. 10, N. 10 
 
 (I'lir.'i'l III' riiiillriiialiiili lit' .Jis.'liiU'u.' ; \sli,ii 
 .liiiiiis iin'i'.'lc.l.) 
 
 .Iiiil;,'iii('iil fur iiliiiiitilT Mii«l:iiii('ii wIi.t.' iI. |i n 
 iImiiI pli'iiili'il 11 ilisi'liiiii,'.' ill iiis(.i\.'iii',v, iiml ii 
 ii|i|i.'ari'il llml llic ii"ti' hii.'.I mi, of uliirli lln' 
 Sii|ii'('iii.' Cipiiil, .'illi.'i luiiU'i' ill.' Iii.'<iilvi'iit .\.'t iH'csciit |ilaiiilill' wiim the iii.lm'.><.'i', liml linii 
 of Caiiiiila wliirli liiul uivcii (.ilaiii pnw. rs Id iiu'lu.U'il in tlic niiimiiil H.'lii'ilnii'.l iis tlii' il.niii 
 the .lii.l;,'.' ill I'.f.'i't'iii'i' to iii.inlvi'iilH, iir tiii.iiH' of llic miLjiiial piiyc.', lull iiii |iarlii'iilai.^ nf il 
 llic Cmiiity ('mill A.'t.s, iiiamiiiicli iik liin mil. t I were ijivcii, an |iriiviili'.l l.y MtTlimi til nf tin 
 wan II. il iiia.lc Ity rcaMiiii of any jiiiiHili.'limi Inwolvi'iit Act nf 1M7">. 'I'ln' pliiinlill "^ ii.uiii' 
 
 innfcrrc.! liy IIi.i.hi: Acts, lint Ky ri'asmi .il the , a|t|icai'cil in tlic mcIuiIiiIc, lull im a mil Mii> 
 
 liii|)ci'ial liaiikiii])l('y Act wliicli iliil nnt ;^ivc ^ set iipiMisitc. 
 siit'h ii|i)ii.'al. 
 
 lsr» «'. 10 (Insolvent \<t, 1M7.I) 
 
 .\ Cmillly ('mill .lllil},'.' WiiH a|i|p|ici| In In .Ict 
 in aiil nf, ami ii.>< aiixiliaiy In llic limnlmi Hank- 
 riiptcy Cm. (, in riliilimi in |iin|ici'ly nf an 
 l''.ii;.:li.-<li liaiiki'ii|il Hiliiatcil in liis ilisliict, iml 
 mail.' ill! ni.l.'i ai'i'm'iliii){ly. 
 
 //i///, McDnlialil, ('. .1., ili^Miii/hi,!, tlial nn 
 appeal wmilil lie frmii .miicIi milcr, In llic 
 
 hi Will I' V. Xiil/i/, I It. .\: ( :.,'.' III. 
 
 A'. Cirn/I, ..,' /iiir/i <!r„liliiii, T) I!, k (!., H(». 
 
 ISM, c. 10, xs. 2/' and 5:t 
 
 //.'/(/, that a ci'cilitnr fur an ainminl l.'.ss than 
 ."SJIKt caiinnl iipp.i.se the I'milirmatimi nf an iii.snl- 
 vent's ilee.l anil (lischai'>,'e. 
 
 //( rv Crrii//ifini, I W. fi (1., 'Jll. 
 Overriilcil III ikMiii liiiinr, WM. k (!., l-»!l. 
 
 1875, c. 10, ss. :t ". aiHll) 
 
 A ilclitm' shall tic ilc.'iiicil insnlvelit — 
 
 ,'li'. '• //' /(( Ikis nilhil II nil I UliiJ nf liin en ''/- 
 
 liifK I'lif tllr jiiiriiii.ir iif viiiniiiililiililiij ii'illi /III III. 
 
 iir if lir /inx i.fliihiliil II sliiliiiinil shinu'ini Ih'k 
 
 inilliilillj hi llli'il Ill's- liilhilitirs. nr if III IlKS 
 
 iilhvrii'ixf iivkiiiiii'liiiijiil liix iiisiilmirii." 
 
 Ifi/it, that an iilliilavit for ii writ nf atl.icli- 
 niciit iin.ler see. !) of the .\eL was siiHii'iciit, 
 which .set nut the fact that the dcldnr hail 
 calle.l a meeting to ennipmiml with his credi- 
 tms, hii.l exhiliite.l a stalcnicnl shnwini; his 
 inaliility to meet his lialiilities, an.l hail nllicr- 
 wisu aukiuiwledj,'.^.! his insnlveiiey. 
 
 FoUi'er V. Uooiiii'i '\ \\. k ('., .'144. 
 
 18M, c. 10, 8. 5«- 
 
 " Thf iiixolri'iil thdH iiol hi. iiillHul lo rt I'oii- 
 Jlniiatioii of lii.t iHsrliii.riji" . . . . if he 
 . . . . " has III)/ ki III an iiri'iiillil lionl- shnir- 
 iiii/ lii.i riniiil.s and di-flinrsiiin iil.-i of rash, anil 
 siirh liook.-* ofnccouiU as an: snilnlih for lii.t Inuli."' 
 
 Where an insolvent hail not kei)t an aeeoiint 
 book Hliowing his receipts and dislnirsemeiits of 
 cash, and the Judge of the (^ounty Court grant- 
 ed him a .lischarge of the second class, suspend- 
 ing it f')r four months ; nn appeal, the di.scharge 
 was continued, but suspended for an ad.litiimal 
 period of lour months. 
 
 ISM, c. 10, N. HO - 
 
 •' All ill hi.s iliii mill iiiiijiilili III/ /III iiL-iiiln III 
 11/ /lir /iinr iif /III- ixiriitiiiii nf n ilnil nf iissiijii- 
 mill/, nr 11/ /III /iini nf /In i.ssin- nf n "'rii nf 
 ii//iirliini 11/ iliiili r /liix .!'•/. mnl nil ililil.i ihn 
 hill no/ /Inn nr/iinllij iniiinlili-. .siihjiii, to Vihnli 
 nf iii/rri'x/. xliiill liiiri /III rii/lil /n riinl:- nimii 
 
 till' ix/illr of /III' inxnirril/ ; mid niliJinrxnii lliiii 
 lirilli/. itx Xliri/il or n/lirrii'ixi'. linhlr for iiinj 
 drill nf /lir ilixolnii/. mid ii'lm xillixniiii iillij 
 pinix xiirli drill, xlinll /liirriif/rr .i/mid in Ho 
 jiliiri nf /hr nriijiinil rridi/nr. if xlirli rrnUlnr 
 liiix jirnriil Ilix rlniiii nu xiirli ilrht ; or if In li'"^ 
 not jiroriil, xnrh iirrxmi xlinll hr in/ilhd in 
 jirnrr iiijiiiiix/ mid, milk iiinni tin i xtnlr fur 
 xiirll dill/ /n llir xmilr r.rlilll illliI n'i/li /In sniiu 
 ifirt nx llir rrnlUnr liliijlll Imrr do)ir." 
 
 /Md, that under this section a debt iliic hy 
 line partner of a iirni to his cnpaitiicrs cmii 
 pinpeily be jirnviMl against the seiiaratc estate ni 
 the .lebtoi as soon as the joint dcbls nf iIh 
 partnei'shii> have been discharged by tlicsnhciil 
 partners. 
 
 Mnrhwtoxh v. Alinon vt id., Ii 11. .\: <i., V-^"^- 
 
 18M, C. 10, 8. 84- 
 
 (.'Vs lo creditors holding security.) 
 Claimant hehl the jniiit and several imlcs ut 
 Laild, I'orter & Co. as a liini, an.l of each nf tlu' 
 two partners in their in.lividual capacity, ii- 
 1 security for a debt due by the linn. 
 
 //(/(/, mi appeal from the County Coiiit, tlml 
 
 I under section S4, of the Insolvent Act of IS?.'). 
 
 \ claiuiunts were warranted in ranking mi tlii' 
 
 firm estate and also on the private estates nf tin 
 
 CO- partners. 
 
 In rr Liiilil, I'orlvr >.y Co., Imolveiih, 
 Hull lit id., Cliiiinunls, I H. .t (i., •''-' 
 
I;i21 STATUTKS, DOMINION. (I,s7r), Cii. Id.) 
 
 \hVu «'. Ui, N. Ill 
 
 l'.\'2C, 
 
 Till' jiiiNMi ^ivi'ii ici I hi' ('iiiiii iir a .liiilgc liy 
 
 >^<- IHOU, (*. I((, N. nj, ' M'l'lioll r.'.'i ol IIk' Iii.-xiUi'IiI .\< I uI I.ST.'i, in I'U- 
 
 I limvi' Uli iin.si^liiT, JH ciilililii'il til llii' ru.li' lit nil 
 
 I itNNigiii'i' iliMiiliryiiij.; an niilri hiililr llllilrl H.iiil 
 
 Hrulillll, mill lIlii'M lint rsll'llil III III lll'l llljsriillillli't 
 
 nil llll' |iai't III lllf ilf.si;{lici', llii' ;;i'Miliil |iii\M'r 
 
 III niiiiiViil \iv\uii i'<iiiiiiiii|ril III llll' I'li'ililius, 
 
 lllnlri M'i'tiiiii '_*ll. 
 
 rilc .lllilf^r (if llir ('iillllly Ciilllt I'l'llMivcil llll 
 
 iiHsi^ni'i', mill it ii|i|ii'm'('i| tliiil mi ii^rccinciit liml 
 
 lici'ii iiiiulc witliiiiii till' kiiiiNv Ii'iIl;i' III llir I'l't'ili- 
 
 liiin ;,'('iii.'riilly, iiiiili'r « liii'li I hi' UM.sigiici' cmi- 
 
 vcycti till! iiNtato til IiIh t'litln'i' iiml iMi-|iai'tii('i', lliu 
 
 |im tii('iMlii|i ^iim'mili'i'iii;..; llihi y I hii'i' iiml iiiii'- 
 
 ,,11,1,, .1 ,. ,,■,,. ; I hiiil lll'l' ('('111. Ill III!' ilclriiiliiiit « I'liiiiiiiiHitiiiii of 
 
 //i/il, Iiml whi'li- (he lliitli'c Wil.s iMilili.-dnil iii i ,. ' i . • .. , . , 
 
 ., ,, .. ,. ,, ,,,.. , , tlllly IHTl'l'lll., mill ICi'CIVIIlJ' lllllll till' lllHllVllltlH 
 liii/i'llr ot llll' jillh. iiiii H' liii'i'llliL' al "^ .' . ° 
 
 iMt.i, <•. in, N. m 
 
 (rl.lilllH nil ilivjili'hilN, nliji'i'liniis In). 
 
 Uliji'il imiM III I'Liiiii an.iiiisl iii.inlvt'nt I'.slnli' 
 i|i-iiii^-*ril « hi'ii' iii> i'\ iili'iH'i' WIS lili'il with till' 
 ilx^i'^lli I si'i'V ii f i'n|i\ 111 nliii'i'l jniis nil 
 
 rj.lilll.lhl. 
 
 Ill II' Miiiliiii, CiiIIii'h C/iiiiii, •_' 11. \' (i., 171 ; 
 
 I •'. I,. I'., iilll. 
 
 IS».». f. W, H. 101 (MotU'O orilHM'tlllJJS, J'lC, 
 
 llDW {liVDll) 
 
 ■llii/i'llr" nf ihi' Jilih, ami lln' iiu'i'liiiK ul 
 «liiili llir I'li'ililnis' ,issii,'iii'i' was a|i|)iiiiil('il \v,i>< 
 iii'lil nil llll' '-'".Mil, till' a|i|iniiiliiii'iil was iiii'HiiliU' 
 :iiiii iiivaliil, "ill least li'ii ilays' iinlii'i'" liciiii,' 
 iri|iiiii'il liy till' .Statiili'. 
 
 I'lirb r, As-iii/iK I ^ V. A'( (/»// «/((/.,."> I!. \' ( I., |,'i7. 
 .Mliriiu'il nil appeal tn ihi' ri'i\y Cniiiicil. 
 
 IHI.-., {-. U\, s. IW 
 
 " l\iin/ iiKsii/nrf s/iii/l he Huhjvcl litlhi' niiiiiiiiiiiii 
 iin.iilic/iiiii (>/ lliv Coin/ or Jiidi/v in the mimv 
 mmiiirr mid In the hiiiiic vaIviiI iik IIiv onliiidii/ 
 iijliiria III' llll' Ciiiiil iiri' suhji'il III i/KJiiriii/ir/idii ; 
 'lull llll' /irriiniiiinii'i' of ///.i ilnlirx 1:1111/ hr rom- 
 ;ii'//((/, mill till ii'iiiiilii's S11111//1I or ili'iiiiiiiili'il lor 
 'iiiurciiii/ mil/ i-liiiiii for 11 ili'lil,/ii ivili'i/e, iiiorl;/iii/i\ 
 Itijiuilln'r, lii'ii or riijlil III' /iiii/iirli/ ii/iini, in or lo 
 'lull fji'i'il.i or /iro/ierli/ in thr limnh, /inKsi-.-sioii or 
 • Hiliiih/ of mi iiHHii/iii'i', mill/ III' olihiiiii'il III/ mi 
 "'■lll'l' 11/ 1 /ic Jiiili/f nil xiiniiiiiiry /itJilioii in riirii- 
 I'diuor 0/ l/ii' Cinirl iin a riilr in leriii,mnl not 
 'I'l mill mill, n/liir/iiiii'iil, nji/ioHilion, uriziin or 
 "ilii'i- iiriiii'i'illni/ of mil/ kiml ir/uiliTir ; 11111/ 
 "kilii'iirr 1,1/ l/if ,isnii/ni'i' to unr/i orilir niiijl In 
 
 niic ihiiiismiil iliilliii'H fill' their ^{iia.i'iiiitee, the 
 liilliei' tn hiilil I he estate a.s Neeiiilly fur payiiieiil 
 nf the .':«I,(MM). 'I'lle ( 'nllll reveiMi'il the ileeislnll 
 lit iheCnillily ( 'nlll't nil the i^iniiiiil alinve iliili- 
 eali'il, lull ii'fllseil the assignee the ends nf till! 
 appeal ami ar^iiiiieiii ami nf the prniieiliiiL^s ill 
 the ( 'nilllly < 'iilll't. 
 
 .lanieH, .)., ilisnenliiii/ as In the eiistN, 
 /;( I'c KkIiiIi' of J'!rmi.i, rx jiiiriK h'lilconvr, 
 
 I It. kiu, ;j'j(i. 
 IK45, r. t((, M. 12s (Apiieal in iiiattcrM of 
 
 illHolveiiey) 
 
 All nriler vas made liy tin.' Cnuiity ('null 
 •linlge ill an iiisnlvent iiiatler iiiuler the Aet nf 
 I.ST.'i, fill' tlu' |illl'pnse nf appealing' fl'niil whieli 
 the iiiHiilveiii, within ei;^ht days finiii the makiiii; 
 nf the iil'iler, tiled a linlid applnved nf liy the 
 .lmlj,'e, and nlitained finni him an nnlei' yiving 
 leave tn appeal tn this Cniilt. Nn fill'lher pro- 
 leedings were taken in this Cnnrl within the 
 ei^ht days. 
 
 Held, thai tlio uppellanl had nnt " ailiipt(Ml 
 
 ■"'irr/,ic 1,11 ,,,r iinnii/nrr ,i, sum oriiir 111111/ lie ■ ■' .■-,...... 
 
 'il<>r'i'ill,i/\'<ni'/i(\,iii'lor./,iil!/riinili'rl/ii'/ii'nidn/]\''^^^^^^^^ "" ""' •^'^''' iip|'''iil " " itiiin the 
 •I'min-ixiinnii'iit. iis ihr riin/i'in/i/ orCiniit or ili's- ''"'■^"'"K "»' -^''t^lion i-'.S nf the Ael and that Iho 
 , ,. . ' . ' I ..II 1 1 I I... I 
 
 Jn rv David Jinrkli'i/, .'i II. (.V (;., ir>|. 
 
 'iiiiiiisonnii'ii/.iiHiorconfi'ni/i/,,, .„„,,.„ ,,,.,- 
 "Ui'iii'i' f/irrrlo, or liv nun/, //' not i,n „//,•,■/«/! '^I'^'b'""' ''I'l";'' '"";< •«■ 'jiiHshed 
 "'iiiliii'i', hi' ri'niuiH'd In tliv ilisiri'lion of the Court 
 '" ilililili:" 
 
 lliit's lint pi'ovi^iit an aetidii of replevin ajLjainst 
 ii :is.'<l;^iiee ill iiLsiilvciiey tn recover poN.se.ssimi nf 
 :'""ls I'diiveyed niider a I till of .sale. The .sniii- 
 "I'Hy |irnee('din^;s therein iiroviiled for are nlili- 
 -ii'iiy "Illy in the ea.se nf duties devnlvini; nn 
 'lif :i»sij,'nec liy virtue of the Aet. 
 
 I'inio V. Ciirir.ii it nl., (i H. i>t <i,, ts7. 
 
 \\ll('i(' ^rnnds wi^re lent tn llu! insnlvenl liy 
 I'l'iiilil! 'and di'tained liy t he assignee, 
 ll'lil, thai they eiiiild lie replevied wilhniit 
 
 I'llUllll. 
 
 It'iiiiiioii V. Ciinrjt It III., {\ \l, ,\; (;., |<)i); 
 
 (iC. L. T., .-)»(). 
 
 1SI.1, C. 1«, s. 1»3- 
 
 "//■ any sale, di/iosil, jilidiji or Irunfir In 
 iimdi of liny prnjii riy rial or pc.r.ioiiitl hy am/ 
 /iirson in ronli ni/ihitioii of iiisoln iiry, liy iray ,)/' 
 •<! I'lirilyfor jiayiin lit lo any rrtditor; or if inn/ 
 /nii/ii rIy riii.l or /n rsonal, iiiornlili or iiinnoriihli , 
 ijoijils, ijl'ii'l-1, or raliiahli' minrily. In i/irin In/ 
 ii'iiy of /laynn III hy sinh /iirson, to any rrnlilor 
 ii'lii nhy siirli I'l'iditor ohlaiiit or irill ohiain an 
 iinjnst /in /in lll'l on r thi ollii r militors, xiwh 
 sail , ill fiosil, /iliiliji , triinnfi r or /myini nt ■fliall lie 
 null and. niid, and, till tnhjirl thi nof may lii' ri:- 
 I'on red hark for th' In in Jit of Iki 1 stall In/ thi 
 
i:i27 
 
 STATin'KS, DOMINION. (IS?:.. On. Ki) 
 
 i:i2H 
 
 luiiijui I , ill mil/ l^iniii iif riiiii/ii I' III jitr'niliiiiiiii : 
 itiiil ij'lhi' otlllli III iiinili iri'hiii lliirljl ilni/'' m if 
 III I'lii'i II ill inn ml nl' iiii a ■aiiiiiiin iil, nr I'nr I In crifd 
 (//■(( icrll iif iilhii'liiiii III mull I' Ihii Ai't, nr ill iiiiji 
 linn II I'll ririi rill, irlninnr iiii'h iliDliiiiil thiill 
 linn III I II fiilliiii'iil liji nil nxiiiiiimi ill iw liif lln 
 imiii of iiiiit ii'i'il of nllnrliiiii III, il xhnll In jin- 
 xiiiiliil lo linri III I II "ii iiinili in finili iniilnliini »;/' 
 iiiiolri nri/." 
 
 I'),, 11 Hliip iiwiirr ill VuriMciulli, N. S,, .'di- 
 liliiycil iiH IiIh jL)^'('iit.H ill Iii\'i'r|ir)iil, •!. \' Cn., Ilic 
 ilrl't'iiiliiiit .1. tiring II iiii'iiilii'i' of llit'ir liriii, 
 
 mill, llH nielli H ill Ni'W S'lilk, lir cllllilnyt'il (lie 
 
 linn of S. I*. It., iif wliicli llir ilctViidaiil S. uaH 
 a iiii'iiilii'r. Ill the I'oiii'Mi' of liiM ili'iilin^'H with 
 tln'sc 11^,'4'mIh III' lirciiliic illilt'liti'il to Imtli til'lliN 
 for iici'('|iliinwM l)y t linn of his drafts iiiiuU' whi'ii 
 III! was ill waul of iiioiit^y, lowartls the jiayiiK^iil 
 of which they ri'i't'ivi'd tlif frcinhls of his vcMsrls 
 
 and rciiiittaiiccs in money. On oiii casioii he 
 
 said that hi- would ^ivi' to thi- Livcriiool linn a 
 niortijaj^con the " 'rHi'nio),'ora " or tlu! " Maj^- 
 iiolia," when they should re(|iiir(! ft, and, in a 
 siilisei|ii<'iit iu)ii\'ei'satioii with a ineinher of the 
 linn, he a>,'reed to give siiuh niortjjaj^e on eei- 
 tain I'oiiditioiiH, whii^li wore not curried out. Me 
 also proiiiised the linn ill New York lo (,'ive llieiii 
 seeiirily "ill ease anything,' haiii»eiiiMl," and 
 mentioned aH sueli Hoeurity a iiiort^jage on the 
 "'rsenio^,'(ira." Aeididiiij,' to l"'.'s own slate- 
 ini'lit, he had siiHicit'iit proiierty to pay his liu- 
 liilities when these conversations took plain'. A 
 few weekK after these (ronverMalion.s V. executed 
 a inortf^ageof "JO/IU shares of the "'rsernoj^ora," 
 ill favor of the defendants .1. Hi S., and had the 
 same recorded, and within thirty days there- 
 after a writ of attachment in iii.solveiicy was 
 issued a;j;aiiist him. The plaiiilill', who was 
 appointed assignee of K.'s estates l»y Ins creditors, 
 liled a liill to have the mortgage set aside, claim- 
 ing that it was void under section \',i'A of thi^ 
 Insolvent Ait of IHT.'i. The defendant .1. did 
 not aiiswn' the plaintill's hill, ami the other 
 defendants denied that the mortgage was made 
 ill contemplation of insolvency, and also claimed 
 that, as it was made under the provisions of 
 the Merchant Sliipi)ing Act (Imperial), it was 
 not affected l>y the IiiHolvent Act of IS7">. The 
 .Jiiilge in Kquity, btsforc whom the cause was 
 heard, made a decree in favor of the plaintiff, 
 and ordered the mortgage to be set aside. 
 
 On appeal to Ihf Siiin-tvu Court of Nora Srotia, 
 
 Ile/d, that the provisions of tlio Iimolvent Act 
 of 1875, with respect to conveyance!! made in 
 contiMiiplation of iiiHolveney, ai>ply to mortgages 
 on ships, notwithstanding the in-ovisiona of the 
 Merchant Shipping Act as to such mortgages, 
 
 and llie lllipi'lial \<'l to IciiiuM' doiililx iih In 
 the '-alidily of I 'oloiiial laws, 
 
 W'eathellii', .1., (//'i-r nlinih 
 Kiiinijl, A^xiijiiii , V. •Iiiiii 1 1 1 nl., ."i U. \ (1,,'JII, 
 On ii/ijiiill In lln Sil/ni iin I'mul ul' < 'niiinlii, 
 //i/(/, alliniiiim ihc iiidgmeiil ImIo« , ||iiii\, 
 .1., ili-iii nlliiij, that the promise to give •.(•iijrii\ 
 "in case anyljiiiig shoiilil happen," loiiM i.njy 
 mean "iniasethe parly shouM go inin iii.ii| 
 veiicy," and that the Iraiisfcr was voiil iiiiijii' 
 sei'tion l:i:i of the Jnsolvelit Act of lH7,"i. 
 
 //(/(/, iiliii, that Ihc provisions nf ilic Mir 
 cliaiil .Shipping Act diil not pieveni ilic |ii<>|i 
 crly ill Ihc ship passing to I he aHHignec mhiIii 
 the Insolvent Act. 
 
 ./()»( >! V. Kiniiiji, II S, (', l!.,7iis 
 
 The insolvent T. .1. I!., being iiidcliicd in ih.' 
 Merchants' Hank, made an arrangcmcni in |iiii 
 siiaiicc of whicli he addressed ,i, Icllci' In lln 
 Accoiintaiil of the llailwa.y Dcparliiiciil mi 
 ()ctob(U"J'2iid, IH7S, instructing him toseiidaiij 
 che(|iie coming to him from the depart iiiciil ii. 
 the care of .McLean, Cashier of Ilic liaiik. Tlic 
 cashier reccivi'd the letter, which was addicsMd 
 to the insolvent, care of .Merchants' liank, aini 
 having removed the eheiiiie which he iiiilciistil 
 " T. d. I'.., per «i. M., agi'iit. For Mi'Vclianh 
 Hank, (Inaiaiiteed. (!. .M., cashier," drew tin 
 money, without authority from the iiLsnlvint, 
 and refused to pay it over. At tlit^ time cl tlic 
 arraiigcinent in IS7S, T. d. I!., was in iiiMiilvciii 
 circumstances, with notes lying overdue at llii' 
 .Merchants' Hank, and jiidgmeiitsrecoidedayaiii!'! 
 
 him. 
 
 //(•Ill, that till' anaiigi'iiient was made in I'liii 
 lemjtlation of insolvency, and was williiii lIu' 
 provisions of xoetion l;t3 of the Act of 1,S7.'>, ami 
 that^ till! assignee was eiit it led to the full aniiiiini 
 received by the defendant bank with I'osls. 
 Cn^ii/lilini, Ami/iiri; v. Mrrc/iiiiifM' liniil; i-l «/.. 
 
 ;{R. .';•(;., i.B 
 
 1875, C. 1«, 8. I»«- 
 
 (I'lirchasing goods on credit by persons know 
 ing themselves unable to pay, to be fiiiml, iiml 
 how ]>iinishable. ) 
 
 l/ilil, unnecessary to allege, in proceediiiu' f"i 
 
 penalty under this neution, thal^ thi! dcl'ciiiliiiii 
 
 was insolvent within the ineaning of the Ail. 
 
 llurri union v. iViltir, '2 K. fc ('.,.'»-' 
 
 .Sf« 1869, C. 1«. s. !«. 
 
 I 187.'», c. 1«, 8. 144- 
 
 j " '/'In ilidh of n.sslijnnniil anil of Imii'^fi 
 
 .... xhnll III' prima farle ei'iiknn in nV 
 
 \ Courts, whilhirriril or rriminal, of xnrli ap)m«' 
 
i:12!i 
 
 STATI'TKS, noMINFON, (I.s7(i Isso.) 
 
 IMMO 
 
 iiinil ( I. I . llii' >i|i|Mi|||l iiH'iil Of I III iiHnl^iM'i), fi ml 
 iif ill' rnjii/nri/jf uf nil /niii'i nlimis ni lln imn 
 iiniiifniiil Htilii'iili III I III 1 1 III." 
 //'/'/. t hut lilt' Hi'i't inn iiiiik<'N llii' liMMJ^iiiiit'til 
 
 .\iililMi' iif Ihi' ri'yiilalily (il tll(> IH'iii'i'i'ilill^'H 
 
 iikiii with a \ ii'w III ill lii'iim iMiiili', mill iiiiili 
 
 iiii; iimii'. Il (liii'M iiiii iii;iki' I III' MNNi^iiiiii'iit 
 
 ivlililirc III till' liiHiilvi'iil liiU ilii; liri'li ii Iniiln. 
 
 I'll nililiiii, /Isiiijii,,, \, I'hiHir!: 1 1 iil., 
 
 •_' K, Hi <;., !H» J 
 I (', L. r., .-itiS. 
 
 Alliilili'il nil ;i|i|ii';il tollii' Sii|ii'i'iiii' ('ninl ul 
 I III III I. 
 
 tN««i, r. :tl,s. n 
 
 7 s. r. K.. ;t(M; 
 
 •-'('. I., r., •jis. 
 
 >'",'</", INSOIiVKNrV. 
 ^ ' IHJJ.i'. .1, H. .VS. 
 
 wlii'li III' IN Milt Milt III;; mill ii('tiii){aN ,S|i|H'iii|iiiiy 
 Mii^'iNtiiili' till' \Milil "mIIii'i" III HIX'. |ti:i l|llt>M 
 lint I'M'lllili' till' 'S| i|M'iii|j{iiy M,i;;iMtntli', >\ lln Im 
 It illlylii'i' III till' I'i'iiri', tl'niii sit tili^ UN nlir n| tin' 
 lUn .liiNtiriN lii'lnl'i' wlinlii llir |il'nHi'i'lllinll lii.iy 
 III' lilnll^'lit. 
 
 i,iiiiiii \. iliiihiiiii, (1 It, ,\ <i., •:».!: 
 lie. L. I'., :.;«7. 
 
 >'".'/< A\AIH TKMI'KltiMK KM. 
 
 Ih;o. c. :n 
 
 Vm imim, v. 10. 
 
 Ih;s, c. 10 (raiDMla T(>m|M>raiin> Act) 
 
 I'l il. S. C, I!. l(»l>— 
 
 Nil ;i|l|ii';tl Irnlii Ciiimty Ciiml In S|||i|'('|iu' 
 
 "lui, ill II i.'iisc iiiiiici' ihiH Aiif, I'dinnvKil liy up- 
 ]'i illiiiiii till' Miij,'iNiiivlc'M Cimit In tlic Ciiuiity 
 
 I 'lilt, :illlinii^'!i till' Loi'iil Act, ninmii/illf,' I lie 
 iillily ('nulls, f,'ivt'M It ^'('licntl llpliriil tn till' 
 iijMi'Mir Cnlirt. 
 
 Miltniiillil V. AfrCltis/i, .") II. ,^ (;., I. 
 
 A writ 111 n liliirdri wiiH isMiuil In rt'iiinvc a 
 "ii\iilioii iiiiilcr till' Ciiiiitila 'IViiipcnmof Ai^l. 
 Ilii'Wiil WHS ullnwi'il liy a ('nliiiiiissiniior, itiiil it 
 »!!» lint slinwii I hat tlii'ii' was im Siipri'ini' nr 
 I'l'iiMly I'liiirt .liiilj,'!' ill the L.Minty. (Acts nt 
 'u|i, 10, SCI'. 2.) 
 //'III. lliat the wiil iiiiist he s('t asiilc, as it 
 u-iiiii sliiiwii that liic ('iiiiiiuissiniicr had jiiris- 
 ii'iiiiii tn issiu^ ii.. 
 
 /''/■ .Mi'Dnnalil, ( '. .1., ami Wt'atlicrlic, .1., 
 lilt llic iiKliiisciiuMit "allnwcil, scciiiity liaviiit; 
 'iilirst ijivcii ami lilcil," was not siilliciciit. 
 
 (Whill V. (y/lill, » |!„ & (i., 114. 
 'Jmn-i, wild her the dccisinii in dtn-liill v. 
 I 'WW/ is ci)iisi<tciit with MrhiiiKihl v. J/iCiilsli, 
 it(i., I, ami /i'< Cnmll, (X jtiirli iHidilim, 
 
 I'l!. iH;., ii(». 
 Ks, ( . i», s. loii rr. K. s. I'., V. 100, 
 
 103 
 
 I'l'iviili'sthat, proHccii lions iimlcr the Act may 
 
 I • l'iiiii!,'hl , " /;) Xdi'ii. Sriiliu. Ill I'ltri iiSliiii iiiliiini 
 11 ' ' * .' 
 
 '*/i>/c(i/( nr III fori aiii/ lirn olhi r Jnslin ^ of I Ik 
 
 I''""' <if Ihi Connli/," <(r. 
 
 '/'W, tliat, alt,|i<)iij,'li wJK'u the Stipcmliary 
 
 ''a-'liMIc sils ami nets as sucii, sei'. llll, pro- 
 |'«is iin^ nth,,,. Jnstiec frniii siltiiii,' with him, 
 I" i< to avniil ills lieiiiy nver-riihul liy otlu'i' 
 
 lii<iii.t!s i-laiming In fni'in part of the (Joiirl, yet | qfltrir or pirxon hi/ him (hjmliil . 
 
 4a 
 
 ISSO, <•. 0, s. '.* 
 
 (I'l iNiilieiN Ni'iiteneeil tor teilils less thai: two 
 yeui'H cannot he seiiliMiccil In Dnrchesler) - 
 
 A prisoner WHS convicii'ii ol larceny ami sen- 
 Icliceil III line year's illlprisolinielit ill Dolihester 
 I'ciiileiil iaiy. Tlit^ Wanleii refuNcil tn receive 
 llilll. I'risniier was then taken tn the Cniinly 
 Uaol. 
 
 N'n Kii;^lish case ill poinl is to lie fniiiiil, lull 
 l\t'n Aiiiei'ican cases were cited in which it witH 
 held I hat a iiieriMtccidenlal error in pronoiiiiciii).' 
 sclilelice was not a sllllicieiit grnlind for (lis- 
 cliaii;iiii; a priMoiicr. Sentence was aniiMlded on 
 reiiirn {it /nihi'iis cor/nis tn nne year's inipriNnii- 
 iiiciit in the cniiimnii ^iml, 
 
 //( re JiiiT, '_' II. i^ «i., 77 ; 
 I ('. L. T., r.,v.. 
 
 ISNO, c. 2K, s. 22 aiHl n { The liullaii Act, 
 
 1880) CI'. K. S. CV, c. 4:i, HH, 21 and 26 — 
 
 Sec. Ihi enacts that " Jio /n rioii or Itiitlnn, 
 iillii r iliini (III liiilliiii oj'llii liiinil, iliiill xiUli ,ri- 
 ■<iili , or III! Ill ii/ioii, orrii/ij/ nr ih^i niiij Itiiiit or 
 iiiar^li, nr sknll m llli , rixiili. ii/iov or omi/iif iiiii/ 
 riKul, nr iillnirniiri for rntiili, riinuiiiii thruiii/h 
 mil/ ri SI rri In loiii/iiu/ to or nrni/ili il hi/ siirli litiiiil." 
 Sec. 'J7 enaiits that " //' uiiij pi rsoii nr Inilinii 
 iilfii r iliiiii till Indian of the hand In irhirh Ihi 
 nxirri In loiii/s, irilhniil liriiisi in irriliiii/ of Ihi 
 Sii/ii ri III I lull III ill III ral, nr nf sniiu nllin r or pi r 
 son. difiiilid III/ him for Ihat pnr/iosi-, Iris/mssi.i 
 n/ion iini/ of Ihi said, lands .... hi/ nil- 
 linij, riirri/ini/ nirai/ or nmorimj tin ri from 
 . . . . limhi'' or haij thin on, .... 
 //(( /Il rsnii or Indian sn Irisjiansini/ shall, on con- 
 ririinn tin ri of hi fore any Sli/irndiuri/ Miii/i.-lrnli , 
 . . . forfi il and. pai/ Ihr -van of tin nil/ 
 
 dollars .... nr, i/'ani/ part of it rnnnins 
 iui/iaiit,lhisaiilSiip(rinl<nilint-(iiiin'td . 
 
 niai/ rommil thi jnivon in difanll fo Ihr romnion 
 
 i/oal." 
 
 ('. 17, sec. {», Dom. Acta, ISSl, enacts - 
 
 "All Slurijl'i, dr., to irhom any snrh /ironss is 
 
 dirirlid hi/ the SuprrinlcHiknl-Gencrnl, or by any 
 
 . shall 
 
1331 
 
 STATUTES. DOMINION. (1,SH1-IS82.) 
 
 \m 
 
 obey till; siimi ; (mil ii.ll otliir (ijlln ri shall, ii/inii 
 riUKOiiahli riijiiisilinii, ussis/ in /In iririitimi 
 thiriofV H. S, ('., c:. 4;<, s. -J!). 
 
 Sec. 3 of c. SO of lilt; Doni. AuIh, ISS2, (ex- 
 tends all powers givon to Slipi'iiiliai'y MiigiH- 
 tiiites, Poliui! Miigist rales, kc, to dispose of 
 oases of infraction of the Act cif l,SS(», to tlie 
 Indian agents. 
 
 IMaintiir having uontinntul to trespass ii)ioii a 
 portion of the Indian Uesi'rve land:-, at Why- 
 cocoinagli, Inverness, Ity cutting hay, etc., afler 
 notice to cease doing so, one of the defendants, 
 as Indian Agent and .fustice of tlu! Peaces issued 
 a warrant under which plaiiitill' was arrested liy 
 the iShcriir, assisted hy anotjicr defendant, who 
 was called upon hy the Slierill' for thai jjuipose, 
 and, after trial and conviction, was coniuiitled to 
 gaol in <lcfault of the line imposed, under chap- 
 ter L\S of the Dominion Acts of ISISO, .see. 'J7. 
 I'laintifT thereui)on brought an action claiming 
 damages for the arrest, and the jury having 
 found a verdict in his favor against Ihe.ludge's 
 charge, the verdict was set aside. 
 
 McLian v. Mclsaar il (il., (i R. iS: (i., .'KI4 ; 
 
 (i ('. L. 'I'., 4,');{. 
 
 18S1, C. \1, 8. »- 
 
 .V', 1880, C. 2H, s. -i'i. 
 
 1881, ('. 25. s. 10» < f. K. S. r., c. ;{8, s. .W 
 The Dominion (iovernment Railways A('l 
 
 provi<leH that " Ao act ion i^/iii/llw l>roui//il ai/aiiid 
 mil/ officer, emploi/ee or sermmt of the dcpar/meiit. 
 (of Jidilwai/s mid C'muds) for miijt liimj done by 
 virtue of his office, seroicc or employment, 
 except within three mmiths after the net com- 
 mitted, mid upon one month's prcviouH notice in 
 writinji" 
 
 Defendants entered into a contract with the 
 Crown, represented hy the Minister of Railways 
 and Canals, for the construction of a branch of 
 the Intercolonial Railway at Darlmouth, N. S., 
 and in the prosecution of their woi-k under the 
 conti'act entered upon the plaintitl"s land. 
 
 An action having licen brought against defend- 
 ants for breaking aiul entering, 
 
 Held, that defendants were employees within 
 the meaning of thcx\ct, and entitled to the pro- 
 tection given therein. 
 
 McDonald, (!. ,]., dinxcn/uiii. 
 
 Kearney v. Oakrs if ai, "JO N. S. R., 
 
 (S R. kV..), ;{(». 
 
 1882, c. as (Till' Windins-iin Act) (f. 
 
 R. S. C, c. 129- 
 
 Jli'ld by Smith, Weatlierbe, Rigby, and 
 Thompson, .1.1., that a company, though incor- 
 pom,ted in Creat Hritain, can be made the sub- 
 ject of a winding-uj) order in the .Supreme Court 
 
 I of Nova Scolia, under ilic Winiliiig up Aii u\ 
 I l!SS"J (( 'anada), when I he company is carry iiij; un 
 busine.s.s in Novii Scol ia, and has ils niaiiiiucimni 
 here altogellier or in pari. 
 
 I'l r McDonald, .1. The Courl has juiJMlii 
 lion lo mak(^ such an order when an Act nf iIk 
 Provincial Legislature has conferred on llninrii 
 pany the righl lo hold lands in Nova Siuljii. 
 
 McDonald, ( '. .1., dissDilhiij, on the >.'r(JiiiMi 
 that the Winding-up Act does not and cdiilil 
 not confer jurisdiction over foreign conipiinics. 
 Hi Id, by McDonald, ('. .1., and M( ltiiii;i|,|. 
 Smith, and Wealherln!, .1.1., that a wiiidiiii' 'iii 
 order unisl name llie permanent lii|Miil;it>ii, iiml 
 could Iheri^fore only be made afler noijcc in 
 crcclilois, conlrilMilories, clc 
 
 Rigliy and Thompson, .1.1., dlssDitiiii/. 
 Ill ri Sill I CiDii/iiiiiy nf CaiKula ( /Jiiiitiil), 
 
 o R. & »i., 17 kVX 
 On iiji/Kii/ Id flu Siipmiii C'oiirf of flii.iiiiilii, 
 JIilil, reversing ihe judgment of tlic Siipninc 
 Court of Nova Scotia, lAmrnicr, .)., (//«iH^'m/. 
 that 45 Vic, c. 2.'{, was not appliciible In such 
 company. 
 'J'lii Ml rrliiiiif"' Ikuik of IfiiUfiix v. (!illi<]iii, 
 
 IMS. C. M. ,;!!•.'; 
 .-.('. L. T.,'.':ii. 
 
 The Kldorado Union .Store Company, ihcur 
 porated by Act of the Legislature of Ni>v;i 
 Scotia, caj). (il of ISSO, is a trading coiiiiwiiy, 
 and as such may be wound up under lliciiin- 
 visions of the Dominion Act, cap. 'l',\, of 4."i \'it'„ 
 if in.solvent. 
 
 in a]iplying for a winding-up order it sluiiiiil 
 be shown in tiie petition that liic coniiiaiiy i> 
 insolvent, \\w. general statement "that the iniii 
 ])any is insidvciit within the Act" not luiii;: 
 sullicient. 
 
 /(( /■( Till /'J/ilornilo Uiiiiiii Sloii Co., 
 
 (I R. >S:(;.,."pl4; 
 (iC. L T.,.il'.' 
 
 An order was made for the win(iingii|) "f tin 
 comi)any, and, under that order, a iirovisicniil 
 li(|uidalor was api)oinled. The onlcr Wiis mI 
 aside, as notice had not been given as i('(|uiml 
 by Statute. Noti(T was thereui)on given, iiml > I 
 new order taken, without any further pelilii'ii 
 //(/'/, that no 1U!W petition was necessiiiT, 
 fn ri Sfiil Company of (Umailn {/.iinilnl}. 
 
 ,-> R. Hcii.ny 
 1882, «'. 'ill, ss. 8(» and 81 It. S. (.. • i 
 
 120, ss. 84 and 85- 
 
 S. 8<). " Till rarion.tConrf.sofflii /VociHrt «,"*'' 
 //(, diidijix of till ■■<aid(^onif.i rispirfirilij, .>7(ii/'''| 
 anxiliary to one another for the pnrjmxii i,l '*"| 
 A<f : the inndinijnp nf the Imxini ><■< of ih i 
 
\:m 
 
 8'1'ATIITICS, DUM1NI(;N. (I.S.S2-1N.S7.) 
 
 VSlii 
 
 1,(1111/ iir III! II iiiiiili r i,r jiritri , iliini ,■( liiliiiij I In n la 
 null/ III fniii.sfi rrn/ ihimoiii Cmirl liiiniiilln r in'l/i 
 'III i-oiiriirri iin , or lii/ tin ai-ili r in- mih /••<, n/' llti 
 urtiCiiiir/-', or 1, 11 nil nvili r a/ lli< Sn/in nn Court 
 iij Cniiiii/d." 
 
 S. ST. "H'lini iiiiji iirili r iiuiili hji uin Ciiiiri 
 .- miiliriil lohi t lij'iiirni liji niiullii r Can r/, nil iijliri 
 •"I'll "/III' iirili r 111 iiinili , n rlijiul Inj Ihi rli rk or 
 "iliir jiro/H r ojlin r of llii ConrI ir/iirli iiinili lln 
 ■<imi, mil/ iiiii/ir l/ii. ■<in/ of sin-h C'oiirl, iiiiis/ In 
 priiil Ill-Ill lo /III in-ofiir oj/lnr of lln Ciiiir/ ri- 
 ■jiiinil lo I'll forn ilir "(11111 : lln iiroilinliini of ^inli 
 "I'll '" ■<",//''■""' I riili nil III' siirli iirili r liariiii/ 
 'I'tii iiiaili ; anil lln rinintii snrh Inxl iiniilioinil 
 I'liiirl iM lo Inki tiirh xli jis in lln niaiii r ns mail In 
 f.ijiii.iili for iii/'orriiii/ iiirli onli r in lln tnini 
 imiimr as if il in ri lln orihr of lln dunrl ni- 
 iiimini lln sanii . " 
 
 Tim |)liiiiitiH' liiiving coiiiiiuMiceil procoediiijis 
 iL'ainst tliu (k'fi:ii(liiiit uoiiipaiiy, iiiidei tliu Aut 
 lif ilii! I'roviiiL'i; of Nova Suotiii relating to tin.' 
 wvicc of ])|-o(;esK on uoiii|)aiiics oul of the Pro- 
 vince, olitainud juilgiiioul and issiUMl oxciMilion 
 iiiiilor wliicli thu Sheriff levied ui)oii eertaiii 
 limiieily of the defendant witliin the I'idvinee. 
 
 Ill' ilcfeiidant company, which was ineoipoiat- 
 'I iindei' an Act of tlie iJoniinion Legi.shiture, 
 imlliail it.s liead ofliue at Montreal, in the I'ro- 
 viiiiu of (,)neliee, having heeonie insolvent, was 
 ilii-oil in li(|nidation, and an order was ohtained 
 liy the li(|uidator from the Siijierior Conrt of 
 |)iii'l]i!c restraining the Sheriff from prooeeding 
 st'll niider the execution. The order wa.s 
 ■irvcil after the seizure and before the .sale, hut 
 
 III.' Sheriff proceeded, notwithstanding, to sell. 
 NilwL'(|iiontly the liijuidator interposed in the 
 ■nil lii'Dtight liy the plaintiff again.st the defend- 
 ciiiiipany, and ohtained a rule to have the 
 iM-iulion and all proceedings iindei' it set aside. 
 Fn'iii the time of the i.ssue of the execution, 
 «itli the li(|uidator's knowledge, down to the 
 i|||ilii.:ition for the rule, two months had elaj)sed, 
 
 'ii'ing which time several steps had been taken. 
 
 II'I'I, that the (Juebec Court had no i)o\sei' to 
 
 •iifiiice a restraining order to stay proceedings 
 
 ■II the Courts of this Trovince, hut that j)ro- 
 
 wilings for that jmrpose shouhl have been 
 
 -iki^ii here. 
 
 Tin. Halifax liankimj Co. v. Tin Dominion 
 
 Salrai/i: tt- IVrtvMwi Co., (i K. & C, ;«U ; 
 
 tJC. L. T., 4»(». 
 
 "*H'i, c. 23, 88. IM) 102 
 
 -liiitiue of application to wind up an insolvent 
 iMkiiiulur the above Act by publication in the 
 fi'iw/a (,'a-MI,. and h'oyal (,'iKillt of the I'ro- 
 ^ii«'::uiil in two Halifax and two Liverpool 
 i^Ki's, held sullicieut. 
 
 //'/'/, that .sees. !»!! !()•_' inclnsivedid not ajiply 
 to a cast' where the proceedings weie to wind up 
 ail iiicorporalcd liaiik deciaied insolvent under 
 the Act of l,S7.">; and that the appoinlmeiit of ii 
 li(|iiidator rested wholly with the Court. 
 I h'l lln /lank of Lin rjnml, )i H. k(\., .'i.'tl. 
 
 1HS2, c. m, s. :{ 
 
 S" iss«, c. as, 8. 22. 
 
 tSHIJ, «•. 12, s. 22N (I'listoms Act) - 
 
 V< KKVKME, -■ 
 
 IHS:{, c. !.'», 8. 72 ( Inland Kevviiiiv Act) 
 
 V' KKVKME, -' 
 
 1SS«, c. 4«, 8. » (f. It. S. €., c. IIS, 8. »a 
 " A'o orili r, ronrirliuii or vllnr /iron nliini nhall 
 III iiiinslnil or ■■« I asidi-, anil nu ilifi inlani shall 
 III ilisrliari/iil Inj nason ofani/ ohjirlion llial I'ri- 
 ili nn has iiol Im.u i/iivu ofaiirorlamaliunor onlir 
 of Ihi- <lonrnor-(hni:ral in Gonnril, hul such 
 liroi'lamalion or orih.r of lln (lonruor-iltwralin 
 Coiinril shall hi ■jnilirialli/ nolinil." 
 
 Under this section the Court is liound to hold, 
 wilhoiil any jiroof whatever, that the (Canada 
 Ti^mperance Act is in force in any County in 
 which it has been pioelaiined to be in force, 
 exactly as the Court is Ixiund to notice any 
 general Statute, that it is the hiw of the land, if 
 so declared. Since this Act, it is unnecessary to 
 alh'ge in the sninmons or information that the 
 Canada Temperance Act is in force. 
 (Jntin V. Salli.r, '20 N. S. K., (>S K. \ (1.), -JOG. 
 
 KKVINEi) STATUTES OF CANADA. 
 
 (Came into force March 1st, ISS7.) 
 C. 1(>, 8. «- 
 
 ('. 3S, 8. ;»;{ 
 
 V" 1S74, C. 9, 8. 10. 
 
 ■V' . ISSI, c. 25, 8. 109. 
 
 C. l;t, 88. 21 and 20 
 
 Si.i isso, c. 2S, 8s. 22 and 21. 
 
 C. 71, 88. 't'i and/iO 
 
 C. 9.5- 
 
 €. 95, 8. 20 - 
 
 S,'.c t'EUTIUKAKI, ■«) 
 .SV< REVENUE. 
 
 Slc 1868, c. 60, 8. 23. 
 

 STATUTES, IMl'lilllAL 
 
 STATUTES, IMPKKIAL. 
 
 i:i:{(i 
 
 Vm iSil, f. 1.1. 
 
 ( . tm 
 
 \ . ISIH, i; 1«. 
 
 KiikIIsIi Slaliidvs How liir in lurif lin-r 
 
 Till! rcvi'iiiii' lii«s ot Miigliuiil .iif iiiii ijipli 
 I'iiMf liufc cxft'iil ill sd I'lir iis our Lf>,'is|i(tiiic h,,. 
 
 . ., . . . _... ..,.,■• x.m f't'i'ii lit to iidiipt ilu'ir iinivisioiis. 
 
 Xm, '//../. I'AXAIIA TK.M'KlANrH ACT. ,,,, , , ', ,, '. i /. i 
 
 (. US, s. I'i 
 
 i:. I'id, sN. lO and VI 
 
 {. 12»- 
 ('. 101, s. I - 
 
 1'. Ui'2, s. ;ti 
 
 C. l(>i,.s. i 
 
 ('. Il»i,ss. H.l and SO 
 
 I'. !«."», s.'i»- 
 
 i;. 171, s. (W 
 
 (!. 114, s. 201 
 
 C. Ill, s. 2.-10. 
 
 ii'diyiii/ril iiN ill fitri'ti lit.'i'i:, I'xci'ptiiifi sii.li |Mri 
 ,i.s lire i)l)vi<m.sly iiicoiisifslfiit witii llif liicnin 
 Sii. 1SU}>, C. I'i, S. II. .stiiiioi's i)f the cDiiiitiy ; wiiilc on tlu'nilid li.uid 
 iKilU' of tlir Statiitu Law will ln! I'CM'iivcil i'\ii|]| 
 MlK'li parl.s as air u!iriiiii-<h/ iijijillriihh mid invu. 
 
 s.< lSIl,f..i,s.,W.j «'"•.'/• 
 
 I I'i r llallilmrlnii, ('. J. -" l'',vciy yiMi' slidiiM 
 <uu» .• »'i I i'i"'"Ier tli'j Coiirts iiiori! uaiilious in llic iidcipiliiii 
 
 r\tl |>nZ, t» 4.1. ' r t .1,1 1 ■ 1 ■ 
 
 <ii laws thai have never heeii |iii'Viiiiis|y miiu 
 
 , (liieeil into tlie eoliiiiy, for piiiilent .linlj^issliuiili 
 
 i I'eineiiilier that it is the pniviaee of the Cimmi 
 .S-. . IMMI, V. 'i«, S. .W. ^„ ^\^.^.\.^y^. ^^.l,,^, \^ i),,, \.^y;^ .„„] ,,f ,|n. i^^..|,|., 
 
 ture to cleeide what it shall lie." 
 
 Ullitirki V. l>irkst)ii 1 1 III., •\A\m-^,'l>'~ 
 
 S, . 1S(»», C. '2<», S. II. 
 
 I'i r llitehie, .1, - " If this caution was laif- 
 
 sary forty years aj^o, there is niiieli iiicue in 
 
 cessity for eaillion now, in view of the fmi 
 
 tliiit, «inee then, very many .\els have linn 
 
 passed rej^iilatiny the praetiee and proeiiliiii 
 
 I....... .i< •» "f this t'oui't, and the removal of eaiiscs finii; 
 
 .^" IM)!K C. ii, S. •>. I . , . , ,, ,„. ■ ,• 
 
 inferior Courts. I he i|Uestioii lii this ct.-i 
 
 'was whether, l.'{ (leo. '_', e. IS, was in fma in 
 S.. 1S«W, f. 21, s. 110. "•'« l''"vii>i;f. ,^,^^^,^^ ^, /.^^^,,,^. 
 
 •JoN. s. II., (s K. kv,.), p. :;,■,: 
 
 S, , 1«0», f. 10, s. 20. 
 
 >> I 1800, c. :(0, M. I.I. 
 
 /'(/• I'diss, .). "The operation of an I'lli.iilhli 
 Statute may he eonlined, I take il, williiii 
 ! various lionnds hy the eireunistanees ami silii.r 
 tionof the eolony to which it has lieeii hiiiii;;iil: 
 Imt it can never, a.s it a|ipears to inc, hicniin . 
 Statute of j;reater elTeel and more eiilariiei! i"ii 
 ■S'm ISOO, C. -I, S. 110. striiction than was given to it in the iiittiili" 
 of tliose hy whom it was passed." 
 
 Fminaii d al. v. Murinii, '1 'I'lioiii., p. .')V.' 
 
 V- isoo, c. il, s. n». 
 
 1'. Kl, ss. 2.->0 and 'im 
 
 17 .lolin, 1. :{0 (.>la;;na Ciiarlni 
 
 ■'.!// iiirri'lmiils. if lliiij in fi mil iii«ii"i\ 
 
 Si, .'trdlt. S.,(\.S.i,c. 17l,s!s.00and; i>i-"i'ii>"<'' '"/"'•-•. >/'"'/ /""■- Unir snj 
 
 Si.. ISOO, c. ;{1, s. 10. 
 
 ■-■■ «■ m.. r^.y y.. -»- , «. - " - " 7 ---,- | - 
 
 IIIII Stirr ritfttftdfs. fit nth r inul tfrfnU't. lit ij" '""'I 
 
 STATITKS, niTKItlAL, 11 and 12 Vie, c. 78. ''"''V/ '" ""■ '•'"'<" "" '"•" '"J '""•' '" ''•'' "'■"" 
 
 In lull/ illlll, sill irilllnil/. iltnj il'll hills, hil til' "'''j 
 
 iniil ni/lilfiil ruslniiis. i .n-iiit in tiiiu' nf ""'■ 
 Anil if lliiij III' iif II liiliil innhiliij "•'()' K;/""'''! 
 ((.V, iniil, lir I'liiniil ill iiiir rinlin nt tin hvijiw"'}\ 
 iifthr n'lir. Illi-ij slmll hr iiUni'luil lijillfiiilt ll'''~ 
 III' hiiilij. Ill- iiiiiiils. iiiilil it. Ill' kiiiiii'ii III "■' 
 Sii 1880, C. 10, S. 0. ,;,^^. rhirf .liislii-i'. hiiir iiiir mi'irhiiiits I'I 
 
 lriiiti:il thi'fi ill till' land iiuikinij ifnr i(;;'"'''| 
 «s, niid if our nti irhiuUx In: null inUnikiltli'i- 
 Sti, 1809, C. 20, 8. 132. theirs shall be likcioisi; with us." 
 
 C. 178,8.48- 
 C. 178, 8. 02 
 C. 185, 8. JJ- 
 
I. {.'J? 
 
 STATUTES, IMI'KltlAL. 
 
 I.'WS 
 
 /A/'/, til, It ,1 VOM'I MJ/llI luflllC Will' ll\ tllC killll. \\'( IMIllMll ,ll|ll|ll till' Sllll. Ill \\'r.-.|lll. 
 
 (rillcciiii lit ('iisliiiMN at ll!ilila\ ciiMiinl 111' ]■!■ anil uivi' il I fni'lliii' cxliii.siim ! Iiaii it in rivril 
 
 l.iiiH'il aftfi' llu: loiiiiiH'iiriiiii'iii lit' war as ciH' ill llii' laiiil nf lis iii'iu;iii, 
 
 niy's |»i'ii|H'il y. 'I'ln' jiiilLiiiiriil in waste ilivulviil, al t lic ilci:- 
 
 •/7h />.'/'/. Sli'wai'l, ;i(l|. ,i,,„ ,,,' ,1,,, ,l,.|',.||,l;„ii, a pai'litinM nf Ihr l.iiuls, 
 
 ■'>'" I'ld/K UK ''ii'. lii'I'l 'II ('1)1111111111. 
 
 Fntiiinii iJ nl. v. .1/i;;'/(j/(, "J I'lioiii., ."{Mi. 
 Till' Ciiiwii raniKit ^lalil a f,'uiR'i'iil llMlii'i'y, ii 
 
 yraiil to siiiiiiiii't that iniiNt lie as iilil as the rciLtii .,_ „, „ ._ .,. . . ...i .. ui .. i,., 
 
 ... ., ,,i . , ,, , 'iJ KUw. ;{, i. II (Statute oltli«Sta|)lel 
 
 lit lliiii'V -, ami till rcliii'c licyiiiHl U'''al iiu'iiiiir\', , . , i ni 
 
 , ', ,, , ; '^ , , ,/, III I'iisi' lit w.ir, iiiiiiliiinl ■.ll'iiii'^i'is sliiill havi' 
 
 till' liy .Mairiiii ( liiirta, iiiiil llm sticnnil ami tliiiil . ,., . , , , .i .i 
 
 ',,.,. , tn'i' lllicl'ty 111 ilupiil't till; I'l'iillii Willi tlli'll' 
 
 1 liai'li'i'K 111 IKiirv .{, lilt' Kill'' IS I'xpi'i'ssly ni'L'- , , , 
 , , , . , . r , -^ ' ; giiiiils h'l'uly. 
 
 I'lllllUll tl'OIII lllllkllll' fl'l'sll LMUIltS. 
 
 !>,' iri'sii ^'1 
 .\fijsiii r V. Faiiiiiiiii, '2 'I'Ihmii., !t7. 
 
 \i KjIw. !,<•. IX KU'sIt) 
 
 (III' tlial rc'i'iivi'i'ctli ik'lit luiiy sue ('xcciitiini 
 
 ''.V,'" II JKI'KI" Of '/"ji'} - 
 
 Tliis .\ft, wliioli jinvv tlu' writ nf rl'.',i,'it in liii' 
 irnlitni, iliil lint ciiiict thai a jllilj^liiciit , /n r m, 
 slimilil altiU'll In, nr, ill nllicr Wnlils, lie il liull 
 ii|iiiii till' I'ciil (.'Slate of till' ilclitiir. 'I'lic .SiiUnti 
 :^;ivi' till! cii'ililnr :ui n|ilinii hy wliiili, if lie 
 i'.\('r('isi;(l it, III' iiii,i,'lit nlitaiii a lien. 
 
 TIlU I'i'OV. Act nf ,S'J (k'O. "J, I'. I."l, J,'ilV(' n 
 
 siiiiiliir ii|itiiiii In the Nnva Suoliiiii cn.'ilitdr. 
 This I'liiiliiiiU'il In lie till' law llfic fnl' liinl'i' than 
 tliii f i|iiarleis of a ('ciiliiry until 4 \'ic. c. I!l 
 liruviili'il thiit I'cyisliy nf the eci titii'iilc nf ii 
 |iiilL,'iii('nl shniilil colistillllc ii lien ii|i(in tiic itclit- 
 'ir'.-i liiliils. 'riil'niiiilioiil this .'stilt nil' the Icj^islii- 
 live intention to make the rej^isli reil jinlL.'ineiit 
 III iiK'iiinlii'aiiet! similar to a iiiiiit >{ii^e is appart lit . 
 Cdhliri II 1,1 III. V. Kilisiiinii 1 1 III.., .lames, .'{U.S. 
 
 i:t K(in . 1 , c. i'i (Stat. »! U isliii. '.>, c. i'lj 
 
 ■■ will fills, tii'ii nr iimrr tin Ih'IiI, iniiiil. liirj' 
 liiiiil. iirihliiiiij, iiriitlnrsiirli lliiin.i in riiiiiiiiini. 
 "■Iiii'iin. iiniii Iniiiirilli liix sin rul. "//</ sunn uf 
 ihi III ill) inisli- iiijiiinsl llir miiuls nf (In utlnr, 
 'III III (inn 11011.1 lir III/ li-ril nf n-iisli-." 
 
 ■' ir/i'H It isriniic In .jiiiliinnnl, Un ili fiiiilnnl 
 aliiill rlinnsr litlni' In liiki his /inrt, in ii jiliii'r 
 I'lHnin hi.i a Shfri.lY. and in.i tlir rim', nnl/t. mid 
 
 "ssiiiinilrilt n.f his liriilhlinrs. sii-nrii iind Iriiil 
 'ill' Un siiiiir illlrnl, nr ilsr hi slinll ifriilil In tnk'i' 
 iiiilliiini I'mni hinrij'nrl.h, in lln sunn n-nml, l.iirf- 
 liiiiil. nr siirh nllii r lint ns his inirlmrs n'ill 
 iiiki ; mill i.f hi dn i-lmnsi' In lukr his inirt in o 
 liliifr virtiiiii, thr iitirt inistrd, shull /ii iissiiiiiid 
 '" hint I'nr his inirt ns it n-ns lii/nri hr rniiunillid. 
 lln: wiistr." 
 
 All iii;tii)ii of wasle will mil lie exeept for that 
 "liiuh is (lone upon tin; land, .-si nee the teiiiint 
 '■"ulil never he supposed eii|)al)le of withstanding 
 wliiil is done oil it. 
 
 Tile words '■'■ olhi r snih Ihiwit,'' hiii/ii^ inmii, 
 '■•miiut iuuhule mills whiuharuuf a very diirecoiit 
 
 'I'hi Diiri, Stiwiirl. :M. 
 > I'IMZK, 1!K 
 
 'i'S Kdtv. :t, «■. l;{, aiiO H llciiry 0, <-. 2t) 
 
 \Vliieli};ave aliens light In ii jury ih nmlii/'ih 
 ' lini/iiiii , and the oilier Stiiliites with lliiil olijeel 
 iiie not in force in this I'loviiice. 
 I V""" V. Ilnnlilh/ III., I Old., !•-'«. 
 
 'i lien. (,(-. i - 
 
 I'aiacled, " Ihnl ii'hi mis iiiinii ri I'dirt fninid 
 
 J hifnri- 11111.1 ■liislii'i ill iissi::i' nf imrrl dissiisin. 
 
 i nmrt il'iinn sinr nr niifl nlln r miinn H'linli ri r. 
 
 i ///( /inrliis III I'nrr this linn Iniri In in iiiljniirin d 
 
 iijinii tl,'[}}riil/il in lull', iijinn Ihr ninlli r sn Inn lid . 
 
 It i.s nrdiiinid, II nil. I sliililisln d . llinl if lln n rdirl 
 
 jiiin.s iiiininst tin iilninti.lf. lln jilninti.ll sinill ""' 
 
 '/( nnn-siiit.^' 
 
 ■ I'icfore this .Statute, the pliiintilV iiii.L!iil liecnme 
 
 null-suit even iifter verdict against liiiu. 
 
 ilrniil V. /'mill 'inn Ins. Co., I T'hniii., 
 
 (1st Kd ), l(»: CJiid I'M), I--'. 
 
 S llni. 4i, c. 14( 
 
 Recites •■ Ihiil Un In nils nnd. liniunnls nf 
 
 inn III/ nf till Kiin.l's liii/r liiiijilr In sii.Vid 
 inin till Kiiiij's Innids ii/inii sin'li iiniinsl" 
 Ii. r. of eschcators;, ■•</)• lit In fnrni Inj Ihi 
 (Jlnnirvllnr nr 7'ri nsnri r In I'nrisiirh iii'jiiisis In 
 ritnrnid. in thr Vhinirrrn ;" nuA to remedy tlii.'^, 
 it provides "Ihiit im Innds nnr li innnnls sii.-jid 
 intn Ihi Kini/'s hnnds. ii/inii iin/insl Infnri is- 
 rlit'iilnrs nr mnnnissininrs. hr in nnjiirisi lit or 
 ijriintid In firm In.i lln I'linnnllnr nr Triiisiiri r 
 nnlil Ihr siinir iiniiirsls hi fiilh.i rrlnrind inln 
 tin < 'hmirrri/ nr h'.irlniiin r ; hut nil snrh hinds 
 nnd. trnrnnnts slnill rntirrh.i nnd. rinitinnnllii 
 riiiinin in Ihr l\ im.fs Innids until Ihi snid, in- 
 i/ili.sts hr rrturnril. illlil hij ii lUnnth iiftir Ihr 
 
 .snid rrlnrn, inilr.ss thr fnirlii iii/i/rirnid jirn.fi'i r 
 
 tn Irnrrrsr till iiniiiisl in Chinirrrii. mid n.lVi rtn 
 
 i tnkr thr liiiids In firm ; mid. if mill li'ttirs juiirnt 
 
 lie mitdr to thr rnntrnri/ thri/ shall hithnldrn fnr 
 
 llnnr." 
 
 The Court liiis tinifornily decided that when 
 there is a jili;na iiusscssin liehl agaitiat the 
 
i;3;{!) STATUTES, IMI'ERIAL 
 
 CiDWii, |Kiiliiiiliirly iiinltr inloi' of title, lliiit 
 till' Cinwii iiiii.-l Id iiiM'Hl ilsfir with till' |)i)M!<i'M- 
 r.iciii ln'l.pic it cm i^iaiit ; iiiiil if il gniiit wliik' 
 it if* iml lit' pii.sHf.s.siiin lliiil gi'iiiit i« voiil under 
 
 il if* mil lit' pii.sHf.s.siiin llnil gi 
 ihiM Staliiti'. 
 
 Millir V. Lnittn, I 'riioiii., (1st Kil.), I-*'- 
 
 (•iiid Kil.), It'll 
 
 Snitt V. //(•»(?( csi;)*, •_' 'riiiitii., iir> 
 H Hen. ((, c. 1», uiHl IH llt'ii. <t, V* 0- 
 
 Tlie liitltM' Act I'l'i'iti's till' |)i'iivisiniis of S Hull, 
 li. <'. Hi, mill ^liilc.'. lliMt 
 
 • '/'ii irmli it. ilin rs //( /'.sn/o liiid sili il In 
 
 iihhilii iiii'Is. f/rinil.s mill t'linns. lii/ /mli iil ; /in- 
 h iiilhiij siirh ii'irr mil riiiniifhi il m' I'lim iliiil 
 III) till I'lirmi r All. iliuiiiili ii-illiiii Ihi snini 
 iiiisrliii f ; mill Ihiri/nrr /irnnili s Ihnl im lilli rs 
 jiiihiit sliiill III' iiiiiili' III 11111/ iiirsiiii. iit'mi'i Imiiln 
 iir II III nil !,/.■<. liii'iirr iinjiiL'^iliiiii iif llir h'iiii/'x 
 li/li ill /III smiii III fiiiniil ill I 'limii'i r;/. m' in liis 
 l-'.iilii i/iii r riinriiiil. if iln liim/'.s lith in lln 
 tiiiiiii- III nut fiiiniil iif fimril. imr n-illiin lln 
 iiiitiilli iij'lir l/ii- siiiil riliii'ii. if il III iiiil III him 
 iir III! Ill ii'liirli II lull r II / riinrai- us In fm-r imn- 
 /iiuiiil ; iiliil if mil/ li'llrrs /mli lit hr liliiili- Inlllr 
 riin/rnri/. Iliiij sliiill In- mill, ninl llulili'li fnl' 
 lliilir." 
 
 'I'lif very jiiiuviinuos iiitcmluil In 1>l' rciiu'ilii'il 
 iitiil M'llii'sst'il liy tliust' Stiitiili's, are llmsi' 
 iiiidi'i' which tho MiilijoutM i)f tiiis I'liiviiici; might 
 wt'll say Ihoy lahnruil if it \wtv held that land 
 Uiaiited with a eiinditiiiii that the grant shiinld 
 he vnid if the land wei'e nut settled on within a 
 eertain time, eoiild ln' siilisi'(|in'iitly granted 
 without ini|iiest of oliiee. 
 
 Whiiloik V. MiKiiim, I Thoni,, (1st Kd.), 1."); 
 
 C.'nd Kd.), 41 ; 
 Sri)// V. //(»'/()•>()/(, 'i 'rimni., ll.'t. 
 
 'Hi IICII. <(, C. » - 
 
 (Directed the Slu'iitl' Ik let In hail all persons 
 ari'esti'd hy any writ, hail or warrant in any 
 peisiinal aelion, and ujioii oli'er of reasonalile 
 siirety of snllieieiit persons having within the 
 coniily, iVe.) — 
 
 Although the Slatule thus ohliged the Sherill' 
 to enlaige those he had arrested upon their 
 giving hail reijuired, it still eonipelled him to 
 have the hodies at the return of the writ. 
 
 4 Anne, c. Hi, hound the .SiiuiiH' to make an 
 a.ssiginneiit c(f the hail-hond to the plaintilt', hut 
 he was still hound to have the bodies. 
 
 1 R. S. e. i;W, s. 10 V II (N. .S.), have not 
 given the plaintiff the 80,'urity eonlemplated by 
 •_';{ Hen. (i, e. H). 
 
 If special hail is put in and perfected in 
 Kngland, the risk of the continued solvency 
 of the sureties rests with the pluintiff, and why 
 
 IMI'ERIAL i:VK) 
 
 should it not also rent with him ni tin i ,im' nt 
 coninion liail. The inipeiative \miiiU nl ili, 
 .Slatule '_';{ Hen. (i, throw the respniisilnlily 
 upon the SheiitV in Kngland ; hut iIiom' wiphIs 
 are not to he found in onr own .Slatule, Mini 
 
 ■• ..1 I :....;.... il ; 
 
 e not to he found in iMir own .Slatule, inn 
 I'lefore neither law nor jusliee throws il ii|hi 
 in here. 
 
 iliill, I 'I'hom., cJiid ivl.). Is. 
 
 th 
 
 him lieriv 
 
 .liifksiiii V. Gnini 
 
 7 ll(>ii. V,, c. I 
 
 'I'hi: defendant (in replevin) is eiililieil ii. 
 damages for llu' unjust detcnlion, and ulini 
 the cause eomes to trial the jiny assess thi'sf 
 damages, and they form part of their veiiliil. 
 (I Saunders I!)."), note X) These rules aiei|iiiU' 
 consistent with section 17") of 'ind K. S., c. I.'t4. 
 Friittuni V. l/m-riiiiiloii it ill., 1 Old., p. .'i."i,S. 
 
 il llvii. H, c. 10 iSliiliitc ofl'scsi 
 
 Kcistry of a deed is not eiplivalent to eiiidl 
 nient under the .Statute of Uses, so as to traii^fir 
 the |)ossessioii. 
 
 .S7((// 'I III. V. Chi-'holm, .lames, ."fj. 
 
 I'll- Young, i'. .1. — I look upon the SiiitiiU', 
 •Jl .lac. 1, e. 14, as peeidiarly suited to our ciiii- 
 ditioii and circuinslances, anil to have the .siuiie 
 title to l)e considered a part of our law, ami cm 
 the same principle, on which "v luiii nliniij' 
 11 rill/ III -.CI I the Statute of Uses, or the .Slalilti' 
 ill iloni'<. till the recent enactments aholisjiiii^- 
 estates tail. 
 
 Smi/tli v. MiDmiiiIiI 'I III., I OhI., \h '.'Tit. 
 
 •21 Hen. H, c. I<( (Statute of Kiirolnu'iitsi 
 
 /'(/• ,Iames, J.— We have adopted in tiii^ 
 rrovinee the modernized deed of feotlimiit, 
 hut without that which alone makes it a finll- 
 iiieiit, the livery of seisin, inilor.sed on tia' oM 
 charter, and provided for by the attormmiil in 
 the more recent deed. It is in form a deed ol 
 feoffment, but without livery of seisin, a ilnd 
 of bargain and sale without (neces.sarily) any 
 eonsideration, and without the enrolment in tin 
 Court of Chancery, provided for in '21 Hen. S, c. 
 Hi, a deed of lease and relea.se, without tin 
 lease, and a deed of conlirmation without iiny 
 jirevious estate to be conlirined, and a deuil nl 
 grant without there being necessarily any incm 
 poreal hereditaments to convey. 
 
 It has never been held that the .-lUautcs 
 of Uses and Knrolments art; in force in tiii* 
 I'rovince, and under the principles atlirnied 
 in Unkirkt v. Dirkxoii, James, '2Hl, it niiiy 
 almost be affirmed that they are not, imis- 
 much as our Legislature has not seen fit to 
 re-enact them, or to provide the facilities fm 
 enrolment witlnnit which they would he iiioptr 
 alive. In New Brunswick the Registry Act u 
 
v.m 
 
 STATUTES, IMPKIU A li. 
 
 1:H2 
 
 lii'ld lo supply that (Iclicicncy. '"'• ""'• SiaHilc 
 niiiki'M no .such pniviHiiiii. 
 
 Till' I'linvi'yiinrc liy lively of seisin reeeiveil its 
 iliMlli Mow from the Slallite of Uses, 'JT Hen. 
 S c. I(». Its sutlieionciy as a eonveyuniH' without 
 ;i (Ict'il was taken away liy tlie Statnle of I'lauds, 
 •.'!l Car. '2, e. .'{. Tin- wlioie lioeliine was vir- 
 liially exploileil long, ))rnlialily ii eeiilnry. I>e- 
 tdic the settlement of this I'rovinee. 
 
 />V ;■/•// V. AV /•(•//, 4 11. X' <;., (id. 
 
 :M Hen. H, o. I 
 
 I lie writ i/i jiiliii/ 1(1111 J'liiiiiiilii in \iy 'M lien, 
 S. I'. I and ,'i'J Ken. S, e. ,S'J, made applieulile lo 
 ilii'iasesof joint-tenantsand tenants in common. 
 
 1st II. .S. (N. S.), e. l.'t!», s. I, ('na.ite.l that 
 ■'.^1// iiirsunn liiililiiiti Imiils us juinl-lciidntK, 
 iii-iHii'liirrs, iif liHinitu ill riiiiiiiuiii. iiiiiij 111- 
 iiiiiiiiilli'it to lUi'iili- t/ir siiiiK , I illiir III/ iffil III' 
 l«lfliti(ill lit llir I'lililliliiii liiir, nr ill llir tilii II liir 
 lifiii'iiliil ill tills rliiijitrr." 
 
 .'ilii K. .S. e. I'J*.', s. I is the .same. 
 
 //'/'/, that the Leyislalme in i)assiny Isl K..S. 
 I'. I.'i!), s. I, intenileil, in piovidinganew remedy, 
 t(i leave the former remedy as it stood, ami 
 • liil not mean to I'estore \\u: writ of partition to 
 Its old position hefore the Stalnte of Henry. 
 
 Douiii V. .l/<'A'(H«y, .lainits, ;1'JH ; 
 Li Cain V. Ilosti riiiiui, '1 X. .S. ])., 4l;{. 
 
 (.\tier reciting the great evils whiili arise from 
 liuyini,'of titles and [jietended >ighls of per.sons 
 ii'it liein<j in posse.ssion, prohiliited the sale of 
 tiiy lanils of which the seller hail not lieen in 
 pcisMssion for one year lii'fore the salt's, and 
 |iwiiislied Ixith the hnyer and stdler liy a foifei- 
 iiiif of the whole value of the lands .so hought 
 mil sold) — 
 
 Until seller and huyer forfeited tiie value of 
 till' iiiiid to the King. 
 
 Will 1 1 (Ilk v. .'i/orrisiiii, I \. ,S. I)., p. .•{;{7. 
 
 Ilf/il, that the Crown is not exempt from the 
 "|ii'i';itiiiii of the principle to uiilmld whiuh this 
 "'talule was pa.s.sed. It eannol lie presumed 
 llmt the King intended to lii> at lilierty to do 
 ilit^ inisehief he eondennied in thi^ Statute. 
 
 Sroll V. //i mil isuii, '2 'V\\i>\u., 115. 
 
 W Hen. S, f. ill 
 
 V" :J1 IIKJf. s, «'. 1. 
 
 does, in as full and ample a manner as tliey had 
 lieen pos.sessed for I lie live piereding years) 
 
 Si nihil , thai a seizure of the lands liy I he 
 Crown was still neii'ssary, and that theelliil of 
 the Act, ,'l.'l Hen. S, was only to aMiid llie neres- 
 sily of an oHii'e. 
 
 Siiili v. //i lull i-^iiii. 2 'i'Uiiiw., Il.'i. 
 
 n ih'ii. s. <•. :{i» 
 
 l'"naits, " '/'liiit nil iililiifiiliniis mill sinriiil- 
 lii's ii-ln'rli sliiill hr iiitiili fiiriiiHi riiiisr iir rn usi s 
 liiiirhiliij III' ill iiiijiirlsi' ri'iiri fiilmi tin h'iiii/s 
 Must lliiiinl Miijisli/ nr his hiirs. or in his nr 
 
 tliiir IISi\ rniiiiiinililij. nr liihnnf. slinll In liiiiili 
 tn His llii/hiiiss mill III his hi irs l\ iinjs in his 
 nr Illiir liiiiiii-nr iniiins In/ Ihisr imnls Itnniiiin 
 Itriji. mill In limir nllii r /iirsini nr III rsnils tn 
 his iisi', mill tn III' jiiliil tn 1/is Iliijliiii ss lii/thi si 
 irnrils. snip, villi iii Dniiiilin Itiiji liiind. nl 
 r.i-iriUnriliils silis, U'ilh nthi r irnnls llsiil iiiiil 
 iirriistniiii'il in rniiiiunii nliliiiiiliniis ; mill Ihnl 
 nil sitrli nlilii/iitiniis mill Sjiirinitiis sn In In- 
 iiiiiili-, shnll III- i/niiil mill iffii-liiul ill thi Inir in 
 nil /iiirjinsis mill iiili'iils mill shnll In- nf Ihi sinni 
 lliltliri', k'illil. ijlliiliti/, j'nrrr mill rjl'irl. In nil 
 illtrllls mill iniriinsrs, iis thi irritiiii/s nliliijnlnril 
 tnkiii mid iirklinii'li'dijiil nrrnrdiiii/ In llii 
 Slittiltr nf till- iStiljilr ill W'lSliiiiiisti r, hint, nl 
 mil/ liiiu- lii'fnri- the niiikiinj nf Ihnl Art, Ini u 
 titkiii, IISI d, iM'irrisi'it, mid i-.ririili d ni/iiinst mni 
 hijl jiirsniis." 
 
 The .Statute lilt H. S, c. .S!l, and l;{ Kli/., e. 4, 
 which gave the Crown a lien upon the leal 
 estate of certain pulilic ollicers as a security for 
 tile fulfilment of their Imnds are not in furce in 
 this Province. 'I'lie levenue laws of Kiiglandare 
 not aiiplicahle luue except in so far as our Legis- 
 lature has seiui til lo adopt their provisions. 
 
 The whole of the Knglish ( 'oinmoii Law will he 
 recognized as in force here, excepting siuli parts 
 as are oliviously inconsistent with the (tiicum- 
 stances of the country ; while on the other hand 
 none of the Statute Law will he received exccipt 
 such parts as are nlirioiislij np/iliiidili ami iiiri.<- 
 Kit ;■(/. 
 
 'riii^ increasing lapse of time since the set I le- 
 nient of the Province should render the Court 
 more eautiouH in recognizing ICnglish .Statutes 
 which have not been previously inliodiiced. 
 
 Uliiurki V. lUiksuii it at., dames, I'.ST. 
 
 :<:i llni. S, c. 20 
 
 (IViliires that forfeited lands shall lie in the 
 "luid and real posst!ssioii of the King wilhoiil 
 'I'ltii-c, hut does not add, as I Kdw. (I, c. 14, 
 
 M lil'll. H, 1-. :<», s. -»4 
 
 Ihld., ill an action on a lioiid to the (,)neen 
 given on t.-iking out a n rlinriiri that the (,hieen 
 was entitled to costs under this .Sluiiitf. 
 
 Qmm V. (Uiitir, I \i. & (i., ;t()7. 
 
i:un 
 
 STATHTKS, IMPKRTAL. 
 
 m[ 
 
 m lion, s, v. « (AKUiiisl Ifsiirj) - 
 
 l:» KHz., «'. S '2i .llH'. 1, «'. II 
 12 I'ar. 2, V, l;{ 1*2 Anin'. «'. I« 
 And '211(1 1(. S., (>. V2, H. I. 
 
 I Edn. », c. II 
 
 sm :v.\ ||«>n. H, r. 'iCI. 
 
 i:t v.m. «-. I 
 
 h'.ii.iri.-. lli.il "Fur ilii liiliii- ■i(ciiriti/ (>/ Ihi 
 IJiii I //"•; Mnji v///, III r In ir^ '""/ -'"''■' --'"■'. iiiiniii"' 
 siirli n-< ^liiil/ liiiri 'li' i-inif' '""' •■li<"':l' ".'' ''" 
 1111,111 !l iiii'l Inii^iin III' //i r IH'iliin ■"^. In f li'if^ 
 mill ■■<iiri-i •'^iir<, '■! '- ilii-lm-iil mi'l • iiii''"l< '''"' "'' 
 liiiiil^, l( III nil III -^^ I'mlil^, cniiiniiiilii'ii-' "ml liinili- 
 liiiiinils irliii-li 11111/ 'I'll iKii I'll' '"' lii''>irii- in nr 
 iHlniiijiinl liiiimji'/ lln V'"'"'-' M<>.'r "'U'" ('"nrls 
 .;/■ lln /Crrlmiin i\ Wnnh inni l.inriii, nr Ihirli,/ 
 <,)' l.iiiirnxlif, TrKi-iiirir III' lln ('liiiniln r, t'n/- 
 I'ti'ir iif lln //iiifi hiilil III 'In <,lii"ii'- Miijii'lh 
 l,f r In iri nr ^//l■'•■ <m)»s '/'rnfiin r /or lln H'nrx, 
 Triiixiinr 0/11111/ Fmi, Tmrn or Casll, irin n 
 11111/ ijiirrisini i^ or xinill In l.'' I'l, Tnii-^iin r of lln 
 Ailiniriilli/ or Xori/, Triifiiri r, I'inlir Sirri- 
 liiri/ ornllnr /n r-'oii iirroniiliilili '" '/" ','"""'- 
 Majfli/, In r h'ir^ or .s/„V(. •<«);•>■, for ninj ojlin or 
 rlinri/i 0/ or irllliiii lln Mini, Tn o-^iin r or Hi - 
 n in r 0/ (till/ "iiDix 0/ iiniiK !/ ini/irixl or oiln rn-i^i 
 for lln iixi 0/ lln (Jinni'-^ Afajisl,/, Inr Inir-or 
 v,/(Vi ssors ')/• ,/'"■ iirori-<io)ii </ rirliitil or /or 
 fi,rliliriilioii<, loillillinjs or irorl:-, or /nr 0111/ 
 nllnr /rrniuxloiiH lo In iisnl In lunj 0/ lln 
 ojllrrs n/ lln (.hniii'i Majixlif" Onhiaiin iiinl 
 Arllll' ri/, Armoiiri/, Wnnlroli' , T, ni-< ninl I'ar- 
 III Ions nr /.'.(•./-.•, Ciiilonn r, Colli rior, h'arnn r 0/ 
 Ciiiloiii^ '^iilisiillK, liiiiioxl" or nihi r iliilii^ irllhiii 
 11111/ I'orl 0/ lln Hnihil, Colhrlor 0/ lln Imlli- 
 of lln ( 'li /■;///■ ('"III i-lor of any xilhilili/ nr /i/li 1 11, 
 l!,n Irir-l.'ini ml 0/ Ihi l!iiriiins 0/ nni/ I'oniili/ 
 or roiiiiln" (uiiinralili hi lln rinljil 0/ Hn lix- 
 rl„<iiirr,frr In III! Court 0/ Wants ami LInrli.-, 
 or lh( Ihuhij 0/ Lain-asli r, Cli rl: o/lln I lam in r, 
 iioir lialh, or ant/ linn In na/hr shall Inin , irllliln 
 III,' turn ii-hllst In or Ihnj or "111/ 0/ lln m shall 
 rrmaiii arronnlalili , shall /"■ tin rai/ninil ami 
 salls/ai-tlon In Ihi (,>wi n's Mnjisli/, Inr Inirs ami 
 siirnssori, nf his or Ihi Ir arnnrai/is n.t aiiji I Inn 
 hi na/hr. In In lan/nthh anonlimj In lln lairs 
 nf litis rialiii, ailjmliinl ami ilili rmimit npnii 
 ii-is nr lltilr nrroiiitl (all his ilitr ami nawtahlc 
 ptlilintts hihn.i aJIniriil) Iw liahli lo Ihi iiai/mi nl 
 therm/, a.tnl In' /ml "nil hinl In inriilioii /or Ihi 
 paymntl of suih arnaraijis or <l<lils In In sn 
 ailjitiliiiil ami ill li fill I mil' iil>"ii< "".'/ •""■'' '/''■'"■-'- 
 nnr/llii'ili-'i; Tilhr, Cnslonnr, dollnlor. Far- 
 itiir, Ojlinr or ArroiutlattI, as is In/on ttaiiinl, 
 ill III; ami In as lariji uitil In m/rial iiiattin r to all 
 
 iiilitil- "nil jiiirfiinn^ as 1/ I hi ^iiiin I'mi^nrii, 
 1,'ii-iinr, Tillir, Cnslomir, Farim r or I'olhiU,, 
 it/niii irhoiit "III/ ■'iiili arnitrini' s nr il'lil^ ^linll I" 
 ,11 oiljinl'/'il or ih I' riillin il, liilil lln ilililln Inninn 
 Fir-I OlJhiror Ai'i'oiiiitiiiil sinoil In, unit 1,1/ n-ril 
 iiiij ohliiialor!/, hiirliiii Ihi ijl'irl 0/ 11 Sliihih i.j 
 Ihi Sla/,/, III III r M'lji <///. In r hi Irs or mi'<< «mi-s 
 for I hi Inn nn^in riinj "ml j,ai/liliiil 0/ Ihi •tiim 
 ti I'riiirioii - or ili l,t^. 
 
 A ('(illiHttiii' lit Inipiist anil K\t'isc Diiiii's lilN 
 
 Willlill till' ili'Silipl imi lit lilllilii- ntlirrls liiillicil 
 
 ill this Siiitiiti'. 
 
 //./«/. imt ill fiini' ill I Ili-" rrnviiiri'. 
 
 I'niinhi \. /)ii'liSi,ii, ,\d\\ws, •2S',. 
 
 r.i Kliz. «'. 5 lAn A<i a^alnsl Kriunliiltnl 
 
 Di'iils, Gifts, Alii'iiatioiiH. iVc) 
 
 Will rriuiiiMsiniiiiiciit iHiittiiiki'il us fiiimliiiriii. 
 if a .liiilLif wiilii'M tti fiilliiw iiiiiiiiti'ly aiiil ^tlirlly 
 ilii' Statuti', ill instnu'tiiij; llu' Juiy, Un is In iill 
 tlii'iii tliiit fci^'iicil, riiviiiDiis ami fiiiinliilriii 
 iiHsi^'iiiiiriits iU'i' viiiil ill liiw, lliiil lliiiM' a>sii;n 
 llli'llts arc sii til lie fiilisiilcii'il wiiirii lia\r liiiii 
 ilcvi.siMl nf iiiaiii'c, fiaiiil. I'liviii nr iMiliiisimi, tu 
 ilclay, liiiiili'i 111- ilcfiaml cri'ilitnis nf llirir jiiM 
 
 anil iiiwfnl arlimis, to llii' liimlraii f tlir iliir 
 
 cninsi' nf law anil jii.stiii', ami tn tlir nvcitlmnv 
 nf triif ami |ilaiii ilcalin.U, tliat im ihiIiiht m 
 cnlnr, nr fci.!,'n('il I'liiisiilcfatiiiii nr i'\|iri'.-fiii,L' I'l 
 
 use, nw ntliiT such limlltr, will lllilinlil lliilll, it 
 iiiailc with the iiforcsaiil ilcsii^'ii ; Iml lie will ini.l. 
 
 that if imlccil the assi.u'iiiiiciit lie iiiiulc ii| 1 
 
 ;,'nnil cniisiilcialinll, '""(" ./''/', f'lr lintll .Hi' 
 csscnlial, then llicy arc valiil. The i|iicsli.iii nl 
 fad which he iheii has In leave with them Im 
 them alone In ascertain, is this; Wiis tlii- 
 assii^miient nf a fi'iyneil, envinons ami framhiliin 
 character, iiiaiU' with that |)lir|inse ami iiilnii. 
 
 anil with a cnhiralile anil fei<,'iieil 1 siihial : 
 
 (If, nil I he Clint rary, was il iiiailc /«.//r( //lA .hmI 
 on a jiiiml cniisiilerat inn '' 
 
 Tarriitl v. ."^iiin/ir, I 'i'lmni., (Isl ivl.), -'I'; 
 
 (•Jiiil I'M.). Ill 
 
 M. & Son, heiiif^ in insulvi^nt circiiiiislaiiiT>. 
 execiiteil a ileeil of trust tor the henelit nf siuli 
 
 'ereilitors as shouM jnin in the ileeil, wliinl') 
 they vesteil all theireslale in a trustee willi |ii" 
 visions thai llu trustee shiiulil have a enniiiii- 
 sion of live |)er cent, mi all moneys, ami sln'iil'' 
 canyon the Imsiness, if ileeineil eNiieilient, f'" 
 
 I a iHuioil that nii.nht cxteml to three years, iNiiu 
 so much of the inoiierly as ini>,'lit Ix- nerossiiiy 
 for the purpose of repleiiishin.L; stock ; iiml 
 that he shouiil sell such portions of tin' "■'' 
 estate as shoulil be necessary to carry on 'I" 
 hiisiness ami pay laxeH, etc, payini; instalin<'Mi> 
 aiiinuiitiiiL In forty cents in twenty innntli^.:'"'' 
 tliviilin,!,' thi^ resiilue among all the other iw'li 
 
i;{4.) 
 
 STATUTES, IMPERIAL. 
 
 134G 
 
 t(ii> lit' tlif j,'iimtors. Till' .luilge, hefoix' u Ihmii 
 the liiMO WHS tlicci, t'diiiicl as to fuft tliat llie 
 iriiiisCi'i' WHS iiitfiicUil f(ir tlii' jiciu'iiil lifiii'lit nt'i 
 crnlitoi'H « itlimit any fniiiiliileiit intfiit tn clolVat 
 111' iKlay uri'ititiii's, ami that the |inp\isiiiii as tn 
 liinvin;,' on tlii' Imsinuss was sulisiiliaiy in tlic 
 Himliiig-iip cif tlic l)ii>iiic'ss ill fulliliiii'iii nf the 
 niisis, 
 
 //■'''/, tliat iiiiitt'r tliis liiiiliiiu, wliicli «as 
 jli.-'ljlii'il liy till' tuiiiis (if till' traiislVr, iIil' liiis- 
 Ii'f «as eiititluil to till' gcMjils iiKliKk'd in tliu 
 tiansftT, 
 
 iii'iih'dii V. /;>//, ,"> II. & (;., !t(i. 
 l:{ Kllx. €. .1, iimi Ti Elix. c. 4- 
 
 (Tin; lattLT Ai-'t was niailo lor tin; |i:(iti'('tiiin 
 »t imicliasers. It niakes vciiil, as a;,'aiiisl siilisc- 
 liUfiit ))Ui'ciiiisers of the same lands, tfiii'iin'ms, 
 nr iitliei' liel'eiUtanionts, all conveyanrcs, t'ti,, 
 niiiilu witli tilt" inti'iition of ilcfeatinu' liii'in, or 
 o'litaiiiing a power of lexoiation) — 
 
 Tlif owiiiT of a liorsf iiiarlc a frauiluk'iit Kill 
 lit siilf of it to liis son, tin; ili-fuliilanl, for tlio 
 |ini[)i)st' of protituting it from lliu (.'laims of (.-ii'ili- 
 t"is. Itufciiilaiit took ik'livery of tliu liorsu ami 
 iitti'iwaiils sold it. .Sul)sui]iiuntly to tliu con- 
 viyainu to tlio dofumlanl, Imt lii'fore tin.' said 
 ■li', the father conveyed the horse, by a hill of 
 siilu, to his daui.'liter the plaintitl', for a delit 
 '■'mil jiili due frnni him to said (ilaintifr. In an 
 
 tjiiii of trover liy the daughter against the Mon 
 I"r the alleged eonversion of the horse, 
 
 ll'lil, reversing the deeisi m of the County 
 (iiiul, that although tiie til'st conveyance was 
 tMii.luIently made to defeat the rights of eredi- 
 tMiniuid was void as against them, under I.') Hliz. 
 
 •">, the grantor could not !in))art any title to 
 liiu iilaiiiliti', who could only ap]ropriatc it to 
 t!if satisfaction of her claim liy virtue of some 
 li-.'il process, and that the plaintill' could not 
 
 ttia-k the con\eyaiice under 'Si Hliz. c. 4, tus j 
 iiiil ilid not apply to personal property. ; 
 
 Vmiiig, (.'.,1., and Desliarres, .1., i/issiiillin/, ' 
 Miidi-i \. Muiiii , 1 H. & (i,, .VJ."). 
 
 !lii' inmiiion law could have att'orded creditors 
 '■:'*:. ei|iially extensive, if these Statutes liad 
 ' 't lieeii made. 
 
 '''.dihrill 1 1 (i/. V. Kiiiiiiiaii if (il., dames. .•JDS. 
 
 N ' ASSI«\MEXT, IV. -(ilFT, 4- 
 HEED, -s .u 
 
 Uac. 1, c. I— I 
 
 lielivery of a liill of "osts as reipiired by 
 ■''iif. 1, c. 7. is not necessary in this Province, 
 Ms liciiig recoveralile as any other debt. 
 ^•ihjKiriik il rt/.v. Fairhuids, 7 R. ^i;- (;., ,S<)9. 
 44 
 
 'ilJac. l,f. 2- 
 
 (Tlie right of the Crown limited with respect 
 to land, it lieing restrained from suing oi' claim 
 ing by reason of any tight oi' title accrued for 
 sixty years previous to that time) — 
 
 !l( ieo. ;{, c. It) put the same limit to the Crown 
 ill res|)ect of any right of title accruing sixty 
 yiars before action commenced by the Crown. 
 
 Snif V. //'(('/i ;«o/i, -J 'I'hom., 115. 
 
 Ill all o])inioii gi\iii by Sir A. Cockburn, A. 
 <i.,aiid Sir K. I'.ethi'll.S. (;., August, I.S,')4, they 
 say that neither "Jl .lac. 1, c. •_', nor !• (ieo. ,S, c. 
 I(). extending and amending that Act, ajiplies to 
 I'riiiie Kdwiinl Island; not tlictiist because it 
 only applies to lands which had been enjoyed 
 fill sixty years at the jiassing of the Act ; nor 
 the sei'ond, liecause at the time it was passed 
 I'rince Mdwaid Island was part of the I'rovinceof 
 \o\a Scotia, which had a legislative constitu- 
 tion of its own ; and the Act not being extend- 
 ed to the colonies, it would not apply to Xova 
 Scotia or I'liiice Ivlwiml Island. 
 
 .s'<i Forsyth's Constitutional La\\ , p. l!l. 
 
 'ilJac. l,c. 14 - 
 
 " //'/(' ifiii I'l r /III Kiiiij, /(/.< //( if" or Siiri'i sso;'s, 
 Km/ xiir/i from or iiin/i r n'liom /In Kiiiij I'l'iiniiih, 
 mil/ ii/l o/hir-< I'lahn'nni mull r /III lUini fil/i ninl' r 
 ii-lili'li /hi Kiiii,! r/alim /II, lin/h In i ii or ^litil/ In oii> 
 q/'/io<si.sv/o)i hy/hi .i/ian of /in ii/ij i/Kiri, or haili 
 vol or ihall nol hnri /ah ii /In firoji/s ol'aiii/ /iiinl, 
 iti\, iri/lii'ii /Ilk s/inn of /iiun/i/ yiurs Inj'on anif 
 Information of iulnisioii lirowjlit or /o In lirowjh/, 
 /o rirorir /hi: "ami, /lin/ in i ri ri/ ■mrh rrtsi /hi 
 i/i/'i in/riii/ or ih/'i inlrni/" mrti/ pliail /hi iiniiral 
 i""!!! , if' III or III' II ^11 /liiiil: /it , mill ^Inill no/ In 
 jirisxiil In itlidil xf,i i-iii'l ij : mill ///«/ in snrh ntiis 
 /hi ill fi nihin/ or ill fi niliiii/i shall ri /fin /In jiox- 
 .SI ssion In or /In 11 hml n/ /In /inn if ^mh infor- 
 mn/ion lyhilii/nl, nn/il /hi /i/lt In. trinl, finiinl or 
 U'ljiiilijiil fur tin h'ini/." 
 
 Prior to this Statute the pos.sessioii of the 
 Crown was not considered one of law merely, 
 for the jiurpose of a remedy, but was an actual 
 possession for all purposes. 
 
 Since this Statute and !) (ieo. 'A, c. Hi, it 
 seems iiniiossible to contend that there may not 
 be an adver.se ])o.s.session to the Crown in point 
 of fact, whatever may be its construction in 
 point of law. 
 
 (Jiiairi, wlietlur "Jl .lac. 1, c. 14 is in force in 
 this Province. 
 
 Sco// V. Ill iiilf rsiiii, 'J 'riiom., Il.l. 
 
 /''(■ Young, C. J. — It "as the opinion of the 
 late Judge Hill, who alistained in Sm// v. 
 Hi mil rson, 2 'riiom., 115, from giving a decided 
 
1347 
 
 STATUTES, IMPERIAL. 
 
 um 
 
 "jiinidii, tliiit llu' Siututf, •_'! .Iiif. I,i'. 14, minlit 
 til III! lii'ld an fxtciiiliiig l'< tliis I'liiviiKf, and 
 
 t'Dlllt'irill),' on tllO S\llpil'(.t, llfti'l' 11 IMPSHL'.ssillll (if 
 
 twenty ycui'B, n, riglil td lniM tliu j)ii»si'«siiiii till 
 ilii' title lie imIjikIki'iI for the Crown. Tiio liitf 
 Cliii'f .luMlicf Hiilliliiiiton si'L'niL'd to iiciiuiesci; in 
 this view, nnil .hidge iJliss to have nn doiilit tlial 
 the Statute was in force with um, 1 look niion 
 tiiis Statute as jieculiaily siiitetl to our comlition 
 and eiiTtinistancfs, and to have the same title to 
 lie considered a part of our law, and on the same 
 prineiiile, on which we have always recognized 
 the Statute of Uses, or the Statute (/- </«///<, till 
 the recent enactnie'its aliolishing estates tail. 
 
 IJliss, l»odd, Desliarres, and Wilkins, ,1.1., 
 eoii'iirrxl in hohling the Statute, '-'I Jac. 1, c, 
 14, in force here. 
 
 SiiiyHi V. McDonald •! nl., 1 Did., "274. 
 
 *21 Jac. l,c. 10, s. ; 
 
 12 1 iir. 2, f. l.J 
 
 V. l;j (ieo. :J, c. «3. 
 
 .Ml 12 ANNE, Stat. 2,1". 1«. 
 1'2 Car. 2, e. 18, s. 2 - 
 
 " Xo ulhii, or iiirion not horn wilhiii the 
 uUiijiuiiri of till. Khiij, d-r., shall, dv., txt/r/.«t tin. 
 tradt or occujiation of a mtrchuiit, or factor, in 
 uin/ " island, ])lantatioii or territory, thereto 
 heloi.^ing, or which may herciifter beUing to His 
 Majesty, his heirs and successors, in Asia, Africa 
 or America, " n/ion jiaiii of fi>rfiilnri oj all hit 
 tiood" and cluittds, ur n-hU-h ari In hii j>oii( t.iloii.'' 
 
 American treaty dissidveil all connection with 
 the suhjects of tile United Slates. 
 
 Persons horn under the King's allegiance there, 
 
 not entitleil to the privileges of IJritish sultjects. 
 
 Thi. Prorld.tnci , Stewart, 18G. 
 
 n Car. 2, c. 8, s. 1 - 
 
 4th K. S., c. 94, s. W-2, ij. v., reproduces this. { 
 
 '1 Will, and M. Scss. 1, c. .5 - 
 
 V STATUES, NOVA StOTIA, 8 «eo. 3 
 
 (l4«S', c. 4. 
 
 7 A' 8 Wm. 3, c. 22, 88. i and 11- 
 
 S. •!. ■• \<i ijoodx, A<.. xh'dl tic . . . car- 
 ried from any one ]ii,rt or jilacc, in the t'ldu- 
 nii'S, *tv., to ainj other, . . . in an;/ )<hip 
 or bottom tint ichat is or t<h(ill be of the build 
 (f Enijland . . ■ or the Colonies, Ac, and 
 wholly owned by the people thereof." 
 
 S. 17. " -Vo vessel, itr., to be deemed, itc, 
 such a cesscl unless rcijistered, upon pain of 
 forfeiture of ship and yoods." 
 
 "Teople" means •' inhaliilanls." Scttli,! I,y 
 •Jti (ieo. .'t, c. liO, s, S, 
 
 '/7ii Frii iidt Ailci idiirt , Stcw.u i, 'Jiki. 
 
 % ii 8 Wm. », V. -'•-», ». »- 
 
 •'All hncs. tic. //( mnj if till .toiJ j,hii,i,i. 
 tloiis. which lire in aniju'ise rc^iminnnl in 'imj 
 
 lairs tn lie lilidle in tirmt Uritilili. xn r'.ii' ".< 
 
 .s(((7/ law shall relate tn uml mintinn Ihi s^iiil 
 
 lilantatinns, arc Uhijnl, null and i-nid. in nil 
 
 intents and puriiosi s." 
 
 If under the Act of Nova Scotia, 1 (Ieo, H. r. 
 
 S, piize money lan lie attaihed in liamls of \n\/v 
 
 agents, then thai Act is void undei' 7 i^: H Win. 
 
 :{, c. •.".', M. !». 
 
 The Inrninda, Stewart, [i. '.M.'i. 
 
 1) Si Kl Win. 3 
 
 (I'.y this Statute tlie poor were to he ni:iiii- 
 tained liy taxation of every inhaliitant, uinl nl 
 
 j all lands, houses all stocks aii.l 
 
 ■ estates in tlie said 'I'own)— 
 
 Ships registered at HiUl, w hicli usually trii'kil 
 
 to and from that port, were within the TowiinI 
 
 Hull at the lime when the rate was made, ami 
 
 ! had made several voyages to and from that \m\ 
 
 ' during the year. They were properly wtuil 
 
 1 there. 
 
 Kenny v. The CHy of Halifax, 1 U. & ti., :!!•. 
 
 1 10 Win. 3, c. 15- 
 
 (Motiou to set asiile an award must he nwilu 
 before the last day of the next term after liio 
 making and pulilisiiing of the award)— 
 
 Held, hy the .Judge in Eiiuity, that iliU 
 Statute, in the absence of any legislation of our 
 own on the sulijecl, governs our practice. 
 
 In re Frasi r ,V I'aini, U.K. l).,ii\ 
 
 Atlirnied on appeal to the Supreme {'nurtul 
 Nova Scotia. 
 
 4 Anne, c. l(i 
 
 4 Anne, c. 10. s. It) 
 
 .s , 23 Hen. 0, 0. 9- 
 
 13 Geo. 3,0. a 
 
 J Anne, c. 20-iRegl8tr) Act)- 
 
 The terms useil in this Act are so ditt'iTiiit 
 
 from the language of ours, as regards the ill^tl«• 
 
 ments to be recorded, that on this point ileus- 
 
 ions under it are not in all cases a guide to us. 
 
 i Coijswdl V. aruhum, R. E. D,,.% 
 
 8 Anne, e. 14- 
 
 Sie STATUTES, NOVA SCOTIA, 8 (ieo. 
 
 (1708), C. 4. 
 
i:{+!> 
 
 STATUTES, IMPERIAL. 
 
 1;}.jO 
 
 \i Aniif , Stat. 2, c lA- I 
 
 |Saiiit' iiH ]'2 ( 'ar. "J, c. I,'{, with tlic i'\if|itiiiii ut' 
 the iiiluctioii lit iiitfiot t'idiii six per ifiii, t(i 
 tivi>. Until Stiltlltrs illi' tulllliltil on ■_•! .liiO, ! 
 Ir. 17)- 
 
 II tlie It'iuk'i' I'liiiti'iicl tor gifiiti-r iiitiTi'st lliiiii 
 ihe Stiitiiti) iiUowM, N(, ilmt tliti iigii't-nii'iit is 
 (in\iiit at tlif tiiiii' of till- loan, all liio a>.s\n- 
 iinT." all' voiil ; l)iit if lliu I'onti'iiL't lit.' foi' no nioii' 
 tliiiii tile Statute iillowH, lint iniylil iiftiTWiirds, 
 'ilmt is ii|)on II suliscinii'iit agivi'mcnt, take inoTV, 
 the assiiiaiift'.s all' not voiil, Imt the jiarty sliall 
 fi'rtcit tl'i.'l)lu the viiliio. 
 
 I'itHi i-xoii V. hiql'iiH 1 1 ii/., ;{ X. S. I)., ,V_'. 
 
 li (icu. 1, r. 20- 
 
 > ' STATITES, >«VA SCOTIA - 
 IS Veo. :t, t*. 0. 
 
 •-' tieo. 'i, f. iM - 
 
 ll WHS iu>,'i'il thai till' li^'ht of luocli'iaci'ly 
 I'oiii'itiiig and llo^'niiiL' a Mainan, licaiin^ a i:er- 
 t.iin analogy to that of a paivnl, 1ml not per- 
 hiijw HO exti'iisivi' as I hi' parental power, liiiil 
 ln.'eii taken from the master liy the necessary 
 operation of the Imperial Stiilntes, litieo. "J, c. 
 ."Iti and 17 iV IS \'ic, r. lilt (Miivliaiit Shipping 
 Art of |,s.->4.) 
 
 JI'/il, that siu'li iii;lit iiad not lieen so taken 
 
 '.'ml R. S., e. S'2, s. I is almost a transeript of ' ^' 
 \\m Act. This section was re|iealed liy Doni. , 
 
 Alts, is7;i, "I, s, ,-(. 
 
 /<V(/.w V. S'roiiij, I X. S. I)., ;.'i4. 
 
 ildfihiii V. li(iri/iiii, I X. S. I)., SO 
 
 l» (ieo. 1, c. 7, s. » — 
 
 ' //' (1111/ -■/('■/t Jii.^iici (,/ P(nci ili'il/ lt(t/i/ii II til 
 '"■'ll ill any vlli/ or of hi r ///•< rim-/ thai /■>■ a Count ij 
 
 'imtf, "itiinte. irithlii thi Comity nl l(ir'ji-,/ur 
 Wl/r/i hi- nh(t/l l)K (iji/ioiiili d Jiisfli-i: of I't an , 
 
 4 (ico. '-», f. 21 and I'J tJco. », c. 21 - 
 
 •• .1// rhilili'i II litini iiiiliif thi' K iiiifuliijiiniri; 
 vlin.if I'athir.i III' iii'idiilfiithci'n III/ thi' fiithi r's 
 niilr n-iri' iiiiliii'iil-liiini snlijifts iii'i' tin nn-il to 
 III' iiiitnrnl-liiini sillijfrl.stliriiisrlci'S to 1(11 iliti'llt.H 
 itiiil /iiii'ji'isis, inilrss Ihiir sin'il, inii'i'Ktoi'n vrfi' 
 iitliiiiitnl III' liiiiiishiil liiiioiiil xi'ii flit' hiiih 
 
 Motiiih not irllhin th' sam- Coiuity, it ihn/t ami ti'msnn. -./• n'lrr ut thr liirth of mirh rhihlnii 
 nmj III. laii'ful for any siirh Justin- of I'laii. to '"" ""' •■"'''('''■c of ii /iriiiri; ut •■niiiU'J n'ith thi'. 
 imiii ii'arrantf, tah ixainliiationi and mab '-'i'"i''ii "flhis nuliii." 
 
 f'l' i':<, fur (tnymnttiri n-hirh any onr or man ' '1"!"-' children and grandchildren of natural- 
 ./ii«/i>. orJnslli-isofthi I'larc may art in, at hti 1 1""'" I'litisli siitijects, though born in a foreign 
 
 ''■II ilinllinij hoiifi, althoiiijh -such ilwcllimj hoim\*^"^^^^^'-'y^ "''<-' ""'• iili»-'ii"<i ini'l 'irt', therefore, 
 out of the County ii'hin he. it anthoriud to ail ' capable of transmitting real estate in this Pro- 
 
 'uJiixtii'i: of I'laci , and in som rity or othtr i vinee by descent, and otherwise. 
 
 '■iiirt adjoinini/, that /< a County of it-<i/f.'' 
 Thi' defendant was brought before the Stipen- 
 ii.iiy .Magisti'ate for the County of Halifax, and 
 •rinl uiid coniinitted for an assault on the high 
 
 Saltir V. //injht.^, 1 Old., 409. 
 
 11 Geo. 2, C. 19- 
 
 Ilild, that the portions of 11 (Jeo. "J, c. 19, 
 
 Tiie trial and conviction took place at the 1 not incorporated in the Local Act of 17(JS (SfSeo. 
 
 itict'of the Stipendiary Magistrate in the City 
 ■iHulifux, which was outside the limits of the 
 
 "iiiity. 
 
 //'/</, that the conviction having been made 
 Misiilu the territorial limits of the .Magistrate's 
 ]aiisiliution, wan bad. 
 
 'I'rni n, whether if made at the dwelling house 
 
 3, c. 4), are not in force in this Trovince. 
 
 Sii, aUi, STATITES, SOVA SCOTIA, 8 (ieo. 
 3 (1«68), C. 1. 
 
 Corni/iiii V. Burton, .S N. S. 1)., ,'}.S7. 
 
 11 Geo. 2, c. 10, 8. 23- 
 
 (Compels Sheriti's, for the benefit of landlords, 
 
 ■! the Magistrate, though outside the limits of t„ take jiroper rei)levin bends) 
 
 /'( ;• liliss, .1. — This Statute may have been 
 adopted by our Legislature as their guide in 
 
 s Jiiiisdiction, the conviction might have been 
 vm'<l liy the Imperial Act, 9 (ieo. 1, c. 7. 
 
 Qimn V. Hiiijhix, o R. & (!., 194. | fraining our Act with regard to Sheriffs taking 
 
 bail, IS (!eo. 3, e. (i. 
 Jarkson v. Campliil/, 1 Tlioin., ('2nd Ed.), 18, 
 
 12 Geo. 1, c. 20- 
 
 Rfiinired that before the issue of a writ of 
 
 1 i^pias, an affidavit should be made and tiled of 
 
 '"« "cause of action.'' Decisions as to sutti- 
 
 13 Geo. 2, c. T- 
 
 Knacts that " all /it rsornt honi out of the 
 
 "ity of atliilavits of causes of action under this lii/eance of Hii Maji sty, who shall hare inhabited 
 I ^tJtiite reviewed. and resided for the space of seven years in any of 
 
 McDonald v. Frasi r, 3 R. & (}., p. "290. His Majesty's Colonies in America, and nhall take 
 
1:1.-) 1 
 
 STATl'TKS, IMPERIAL 
 
 ]Vyl 
 
 Ih' uitih^ihii /.v»;,m/, .;,/(///» ,l.,wl,(iiljiiil;i"l A writ ..f . ■ W/ocrn-/ \Viif.«|UiiMlu;.l(,ii the j-inniM, 
 ami tnbii luh, lli> .\/iii,s/,i\s „alii,nl-l»>iii "iil'- iiliiiMiK '>tli»'i ". t'li'' tlif hix "liiys' iiotiiv ni|Uiiii| 
 JM'N „ffl,l.i Kni'jiloiiiji' (tU iiil. iii->,iou-tn,ri,i,„^, \<y Ihix Stiitiitr «iiM not givon. 
 
 Ml Ihiiiiilil V. HuiKiii, 7 I!. \- I'., •.'.'). 
 
 Hi hi, not in fi'i'i' in tl"i« I'mv inif. 
 
 (^hiii ii V. I'iiiii,\ •.'<! N. s, I;., 
 
 (H K. &«..). ;!•'•-'; 
 !»('. L. T..." 
 
 .Vm.„/.„, CERTIOKAKI, 7. I-', W ^ \X 
 
 ttiiil /iiiriio'd ■<.'' 
 
 //i/il, that 11 \nrni<H Ihuii mi tin I'nilcd 
 
 Stiitfs in 177."), luiil who liail ic.-iili'il tiuir till 
 
 the latter iiid nf ISOS, cnMlil ni>t in ISIKI cliiiiii 
 
 the licnilil lit' tliin Art. iiltliimu'li imldin;,' ii 
 
 li(«ii.'«i' fiipiii ilif (idMiimr 111 ri'-ic'u' in Nnva I 
 
 .Sii.tiii gi.mtfil iindcr tlic l'rii\ imial Ail, 'M 
 
 Cio. .'J, I', I. 
 
 V7(. I'ri.riiliiin, Stiwart, |). IIM). 
 
 1.3 Ct'«». *2, «'. IS, N. 5 - 
 
 ",Vi< "■'•'' "/ II i-l 'null I'l ^hiill III iiii/iii-lli III 
 i/nnihil, :^iiiiil I'lii'ili I,,- iilliiii'iil III I-' iiiiii-i 'iiii/\ 
 iirili r, i-iiiirii-iiiiii, (iru'lin- /irdn < illnn ln/nn a\ 
 ,lii<lii-i III- III Ihi .SV««/ii;/s '(((/ivs il III it/iiilliil /or 
 ill ■/'.(■ i-nhiiiliir iniin'li-, tin'l ii/'i"' "iilli niiuli 'lin' ' 
 till /Kirhl liil-' ijin II il.r ilili/^' iiiihi'i in n'rihinj In 
 III! Jilslin (11- .hi'.liri «, (/(■ /irii nj lIu ill, if -n iiltiiii/ 
 llli ,-i III." 
 
 It is an c^talplislitd rnic ct |ir,utii;e, ll>at no 
 ii|i|)lication t'nr a criminal intorniation lan liu 
 moved against a Maui.-lraK' tor anytliin>; done 
 ill tlif course ot his olli-e w itiioiit |irc\ ions notice. 
 Six days' notice nuisl lie ;,'iven. It is rc((iiired 
 )py Statute in cases of n r/ioniri, and it is roason- 
 alile tiial the sanic rule »dionld iirevail in tile 
 case of notices for a criminal iiifoinialioii. 
 
 (,'((11// V. y//(( •</('<, .lames, it»l. 
 
 l:{ lii'o. 2, c. W ' 
 
 (All Act to restrain and ple^enl ihi' cxci'itnivi' 
 increase of horse rai'es, cti',) - 
 
 tjiiaui, wlietlur in force in tiiis Province. 
 Ihiiiiii \. Cli'iiilli' 1'^, -•' N. S. !!.. 
 
 (s u, \ (;.),;j(iii 
 
 '20 lii'O. '2, f. 3S - 
 
 (An Act for the relief of niiiinied and disildi 
 seainen, and widows and cliilcheii of siicii ic 
 shall he killed, slidii or drowned) - 
 
 Tlie ohject of the Statute was to pioviilc 
 fund for the )ierinaiieiit relief of the ikimiii- 
 naine.l ill the title ; Iml it h'ft the right of tli 
 sailor to siipiiort and medical aid aliroad. wjiiii' 
 the voyage was n it terminalcd, iinloiu lad. 
 
 'I'he sailor was hound to pay so much ijennulilli 
 towards the fund contemplated hy the Sliituti, 
 and in coiisiderutionofsuc.il paymeiii he whmii 
 titled to certain advantages and relief iniilur il, 
 lilil there Wiis no intention of eiiauliiig aiiyiiial 
 The ririiorari was attacked -m thegroimd UT interfering with the then exi.sling light- 
 that lotice h.id heeii L'iveii to tiie Magistrate | hetweeii master ami manner. 
 
 as required hy the Imperial Statutes, I.S (ieo. •-', j Unlsloii v. /;„/» il al., I Tholii., (1st IvU 4^« 
 c. IS, hut no .such ground was taken in the rule. | *-'" ''' '' '' 
 
 llilil, that this ground could not he taken at i 
 the argument. 24 GCO. 'i, f. 40, S. l*J - IT. SnI U.S.. 
 
 '."""/■', whether the iiile rei|uiriiig notice u. 19, h. 16^ 
 
 a|(plied to this case where the .Instice acte.l as \ Kmicts that no person " iIkiH '" nilillnl "iilo. 
 
 a Hpecial slatiitoi\- Court, and not simply as ,„• iiitiiiiHtin (iiii/ '■itiisi , action, or •<iiil )or, <« 
 
 a .Instice of the IVacc. riranr (Hhn- in Ian- or in i llilil ijuuij "lun or '■m 
 
 Tii/i/xr v. Mnrplii/, .'{ K. .V <i., I7.S. of moiuy, ihl'l^ or ilnnaiiiU n-haltirr for or » 
 
 j ni-i-oiiiil of mil) ■■<jiiriiiioin liijiior-i, iiiil> ■« "nd (!• ' 
 
 ,,,,,. ,. • .• 1 »i 'ihallhariliiiii yiallu nml lioiio. liili nmirif'"! ''' 
 
 //////, that 111 making a '_..i;victioii under the ••>"""""■" ' ' ./ . ^ 
 
 1 ■!• \\ iv-v .1,,, s;,i,.„„li.,,.v oiii lime lo ihi nmoniil of lin III 11 -li,lliii;t^ 'III 
 
 ( anada 1 emper.ince Act, IS/.S, the .stipendiary 
 
 Magistrate for C'ornwallis I'olice District, l.y I'l'"-"'-'!"-" 
 
 wl...m it was made, was exercising the functions ^)">' Act, :Jrd K. S., e. I!., s. 10, goo m 
 of a .lustice .,f the Peace, ami, co,ise,,uently, , tl«U' the Kngh«h, masmueh as .t avo U .i 
 that the Imperial Act, l.S (leo. 2, c. IH, .s. .5, -curity given or made, ;>' -'"''^•;';' ' ' 
 
 limiting the granting of the writ to six months «''^'"'--' '"'>■ -''-'•«\ f'"', '■'l"'"'. '"'■ "'"^" "■ 
 
 r , 1 i r ^T • i- 1-1 Ti ' action cannot he iiiaintaineil. 
 
 after the date of the conviction applied. Ilie ; "'^""" . „ ,, , .v < n ., ini 
 
 II rtiornri, which had not hcen moved for until 
 after the lapse of twenty-lwvp months from the 
 
 (hite of the conviction was therefore nuashed ; 24 GCO. '2, C. 24— „„„-,i 
 
 Mith costs *' STATl'TES OF NOV.i Sl'OTIA, 
 
 'Queen v. MrFaddm, C R. & (!., 426. | 54 CiCO. i,t''^' 
 
1 ;!.):{ 
 
 STATIJTKS. IMPKUIAL. 
 
 i:m 
 
 ■iMiro. '2, ('. II, SM. ihiiul 8- 
 
 ■jlhl I!. S., ,•. |,-.|, rt. :.tli H. S., c. lit, i^. 
 
 'ikni liiiiii '_'t (ini. ■_>, I'. (I, xN. tl mill M. 
 
 Mrtirxjor w I'liihr^iiii, I 0|il., •.Ml. 
 
 H (ico. 'i, c. 14, N. 8- (f. 5lll It. S., (>. Ill, 
 
 '. ;j - 
 il'ruv. AlI, W (Jcii. ;<, I', l.'i, H. 10, in II cii|n 
 
 '.( iliiM - 
 
 ".V') r(i-liiiu i/lil/l hi liiiiliilli/ (lijuill^l llity Jlt^/iit 
 ,i'>h' I'l'iii fur ri III/ III hill ilniii iulhi IXI-' iltiiiii 
 ■./Am ".//''■', nr iiiiiiiii"! (iiiji iiiiixliilili , or ulhir 
 f,^nriir jii fioii iirtiini in ii/hri siiiil, hii/imi rimi- 
 n\iiii-iil irllliiii a'lx inli iiilur iiuiiilln tifli r lli' ml 
 miiii""/." 
 
 The wdi'iIm "iirlliiii 111 II Jon sitiil " woic lnlil 
 •0 ii|i|ily to till! lust iinti'ii'ili'iil wold jiirson, 
 iiiil til iiit'iin iti:tiiig ill iiiil of till' c <iiHtiilile, 
 
 iir.'iiil H. S., c. I.'il, H. M, this Hectioii i« I'xiutly 
 will ."illi 11. S., c. I!), H. M, " ..Vrt Ill-lion hIiiiII I,i 
 htiiiiijlil fiiiniiisl II roiiMliilih , or ol/ii I' ojlin r or 
 j.'f'iiii iirlimi ill lii-iiiii/, ini/is.s l/ii .1111111 In foul- 
 miinit irilfllll -i/j.' llloiilliH III jl II I'll r III' run -(I 
 •1' iirllnii xliiiH liiiri iirrriiiil." 
 
 1I'!<I, tliiit .'il lifii. :i, f, 15, proti'its ii «iii|. I 
 
 •l.llilc illlll Ilis ll^'si^tilllt^^ ill'tillj,' IMIlll'l' nil CXlTll- ! 
 
 •:"ii HiilistitiUc'il fur ii wimiiiit. 
 
 S< Illlll II, .'ml, \. I>i Will/. I 'i'lliilil., 
 
 C-'iiil I'M.), 1 !•••(. 
 
 Hioo. 3, c. 1.1, s. I«- 
 
 Kiiiirts tiiiil ^' III riix' Hill/ iiiformiiiinii i/mll h, 
 
 'Mniiiii'iil mill liromihl lo Ir'id in Annririi, on 
 
 'Illlll III' (1111/ tl i:iiri' of mill x/i/jit or ;/o(«/< 111 
 
 ■'.ihiiiil 1,1/ ihiM or (1111/ o'litr An of I'lirliiinii ni 
 
 ■■I'liiiiij In Ills M(tjcnli/'s riisloiiiM, irlii ri in 11 n r- 
 
 ''', oc iiiiliiiri, sIkiI/ III ijinii for i/u flniim r 
 
 'I'l'io/'; mill it sIkiII (i/i/ii (trio lln .Imhii or Coiiri, 
 
 •1 ii-lioiii III! iiaiii ihiill Ii, iri<il,ili ■ linn 
 
 "K (1 jiriiliithli' ritii-xK q/' 11 i:iin , lln Jinliji or 
 
 <Mi-i III fori' irliom fill -1(11111 "hull In' irlnl, sludl 
 
 ■i''<fil III! llii' ni'oril,or ollnr /ironnlliiii-i, ilinl 
 
 '• init (I /irolidlili niii.ii for llii /iron riilori 
 
 iiiij III' irilil tliijt orijooils ; mnl In siirli mii 
 
 'lifniildnl iIkiII iioI III iiililliil lo any ro-il-i 
 
 ' -III' irlidl.ioi n r : nor -iIkiII IIh' /h noiii irlio 
 
 '".■'' Ill' xiiiil sliiji or iinoils III liiilili lo mil/ iirlloii 
 
 ' '''lln- -ikV or jiro-iinilion on (in-c unl of ■•nirli. 
 
 The ut'ititioate must Iw gnintetl upon the 
 
 ■"'s iipiiuiiring ill the cause, It is not neces- 
 
 I *!')■ to prove them to have heeii known at the 
 
 ■ime of si'i/.ure. False papers, prolmhle cause. ' 
 
 The. Fdiif, .Stewart, 1 12. 
 
 Heo. 3, c. 16- 
 
 •Vm 21 jac. 1, c. '2. 
 
 I'i lien. :t, c. Ji, n, .11 — 
 
 I'lliintfil that " lilt hill III' I I'llimiiii ur hilninl 
 hill III- iiriiiiiissiirii null ii-nnlnl uflir lln l.'illi 
 
 illlll iif Mini, I 77- , shilll III of fufi'i III' ifi'i I Illlll 
 
 III /iruiliirr mill ililiiji iirr ur nrliun ill Illlll jiiirl 
 iif lii'iiit Ih'iliiiii riilliil Sriitliiiiil, iinli.s.'i kiivU 
 ililiiii'iii'i' ulinll hr I'liimil Illlll I. i'i villi il or ui'tioii 
 riiinini iii'i il llnri'iin n'ithiii llif s/nirr uf sir 
 in 11 s fruiii mill ufUr llir lirnl.t ut li'llirli Ihr 
 
 .llllllH ill Ihr Sllill hills ur null S hi I'llllll' f.l'illihll'." 
 
 I'liiiiititr .siii'il oil lour liilli ol' fXiOiaiij,'!' iliawii 
 iiy liiiiisclt' at (llasgow, .ScoiIiuhI, in IM.'KI uiiil 
 |S.'{7, upon the ik'fuiulaiit, ai'i.eptiMl ]iayalile four 
 MiolitilM after iliitf, at lll<' ilcfciulaiit's nliop in 
 filiis^fow. IMaiiititl's ri^'lit of aclion was liarrcil 
 ill SL'otlaiiil liy I- (ieo. .S, r. 7-. (If was not in 
 Nova .Scotia when his right of action accriicil, 
 liiit caiiic for the first time to \ova .Scotia within 
 six years of the ilay of the coiiinienceiiient of 
 this action. 
 
 //-/(/, that I'J (Ieo. ;!, c. 7-', s, :)7, ilois not 
 extinguisii the ileht, Imt the rcliieily only, ami 
 tliat therefore plaintill' ciilllil liiaintiiill iiis aetinll 
 liere. 
 
 ISri/soii V. ili'ilimn, 'J 'I'liom., •J7I. 
 
 13 IJco. 3, c. 03- 
 
 'I'lie SiipreiiK' ( 'oiirt at Calcutta was aiilhoi- 
 i/cii to exercise the MUiie jurisdiction in civil 
 causes as was exerciseil hy the Court of King's 
 lieiich in Knglaiiil liy the coniinon law, ami it 
 was assumeil that hy such authority the piovis- 
 inns of the Statutes of Limitations, '21 .lames I, 
 I'. Iti, s. 7, ami 4 Anne, c. lli, s. lit, were trans- 
 feircil to Imlia as part of tlie law of KiiL;lanil, 
 auxiliary to the common law. 
 
 Cnn-ill <l III. V. n'dlldo, ;{ N. S. I)., |(i.-). 
 
 14 (Jeo. 3, f. 48 - 
 
 (An Act for regulating insurances uiioii lives, 
 ami for ))rohil)iting all such insurances, exce])t 
 in eases where the jpeisons insuring shall have 
 an interest in the lift- or ileath of the person 
 insiireil ) — 
 
 S". INSlR.lXfE, LIFE, 1. 
 
 22 Geo. 3, c. 4«- 
 
 Knacteil that it shoulil he lawful for His 
 Majesty to conclude a peace wiili the Colonies, 
 any law to the contrary notwithstanding. The 
 treaty was suhseiiueiitly, though indirectly, 
 confirmed hy other Acts. 
 
 Thi Proriihni'i-, .Stewart, 191. 
 
 20 diCO. 3, C. 60, s. S- 
 
 " Xo subject of His Miije.itij, it'c, ichose vsunl 
 residence is in dmj fon-iijn country, sliull he 
 
i:}.-,:, STATl'TKS. IMPKRIAL mc 
 
 (lr,lllfl.nrinlill,il.'liini,;llii> r< si<li lin. In I., tioll. iTIir jliri^.iliitloli nt \\\r Ih-lMl.M (,,uit 
 
 i,inu'ri>finnj Itrilish f„H<ir "'"• iifiri«ai.U .■stni.lnl l.y A.i .,| l',(ili„i,M.|it.i 
 
 fliM, tlmt 11 i)fi»nii, wliM Hulil liJH litml in Tin \,n n/rn S.,i„rii /^/ Oim- »,, M..w«it, Ji.i 
 
 Novii Mciiliii, mill wi'iil Ic llii' I'liiti'tl Stiiti'H tfi 
 
 «1i«|npNf iif pliiMici' mill |iui<liiiH(' 11)111, mill ill- jjji jjj,jj^ .| j,^ ,^^ . 
 
 t..n,lnl 11. H,ay h Mmr. ti.ii.. iiml i.t.un an it J^^^ ^ ' ^, ^^ ^^^^ „„,,„„,.Ki,i« new m.,.1..,> „, 
 
 van alU.K.'il, Im. tli.-lu «,l» hn ..v,.l...l..i. ot h„..1, ^^^^ ^,„j,„,^..^ ..„,„„i.,, i,. .^,„..,i,,, 
 
 iM,i.|„i.,„. anil 111. r-HiiU.il ... il.c I .i.lci Ma.Ls ^^ ^^ _^. • ^ n'.lrr oli.n .ha. if a.,v ,...,.,„.. 
 
 U„h i,i. fa.iMlv, ki.,,.i.,U a,. .,,.1. >u,H il...,..al.. ^,, ',^,^ .,,. „„. fniuM Slat.., sl,„i,l,l , „ni. ,„„„ 
 
 fifil tiiilll lici.lU "Wlirl I't a rillt.sh ^<lllll llinlif ' . « .i ii. ..i„ t v , .i .i 
 
 " Ml I ^ 1 ilic.ti |i> ii.iy ]ia.t «>f tl.n r.'iiv.iiii' lit ^|.\a.V'l)till 
 
 "'" ■^'''' V7,. /V;,,-/. .I,/,-.,,/.-/.. Sl,.«:i.., •.•<«.. '"'• '!"• I""!"'^^' "f i'"'i'li"K tl"'i'^'. ••'■' «'"'" '" 
 
 hni'i'iil t'i,r mill ,'<iii'h jiiriiiiii ")• inrHiiiin. Iim-iiiii 
 
 *i(M« I'O. H f. 00, H. 18— llr.-'f "litiiiiii i> II lln'li>'i I'm- tliiir imriinur t'l-iim 
 
 Ciiaiiyc i.f lllii'^lf.' ti. I..' i.iiliilxi'il 1..I ifltiti- fin )inri fliiif. ilr., In iiiiiniff hiln llir mini ill 
 
 latr. TviiaLy f...' faii.iiv pioviilcil l.y -JT (Ifu. liriH.-'li .-/////x. d'''.. »';/,'/ iiiiii'«in. Ii'iiimlinlil /",•• 
 
 S (■ 1(1 s. in. iil'iifi . iih nxlh iif liiinliiniih'ii. Ill- iliilliiiiii. ffii 
 
 '/'/(. /■',•;.)-</.. I '/'■'//'»/•', Str wall, •-'('. Ill' ihihi. jirnriiliil iiln-inis lli'il ."""A ImiiKihuUI 
 
 I'll I'll il II rr. A r.. ."lull I linl.ih llli ii'linli.ii'ni.l 
 
 W (lOO. ;{, C. W), H. l.*i, niMl 'i't Gt'O. :), C 10, //,,• r<//»c nj' Jiflij iiiiiniilx for rnrii iHiih i„f^ 
 
 H, 7 smi llinl sllllll III llillll In XIII'll J'inililll." 
 
 \\ liiiifViT .111' iiiaxti'i in rlimiL'fil, till' pi'lsi." liy inmtiii'.- .^I'l'tin.i, "nil "iil, ■, nf sm-h itrlirl' 
 
 lit'Lulilillg liiaMti'l- xliall ^ivc M'liivity l.y l.oinl. niiuli u-illiiii /in In niniilll' -hull In I'o'nl." 
 
 Till i'rii ml" Aili-i iiiin-i , .'^ti'wa.t, -(HI. \|,t inii.niU'il li. I'Diiipirlii'iiil any n.iiiiiHiiiil 
 
 ji.'ivilfgt'w, iKif to I't'iiiovf gi'iioi'iilly till' >li«iiliili 
 
 '2« (ieo. 3, »'. <M>, s. 40 - tii's i.f .'*iK'li Hfttlei's hh iilii'.iH. 
 IliilMifiiii),' i.i'iial.y nil (illiccrM wilfully lifgli'ct- Tin /'rorlilnii', Stewait, ].. I!«l. 
 
 i.ig or I'c'fusi.m til |nrtniiii any ait leiiiiifi'il l.y 
 
 """'"'""'■, „.;,,, V, ,..,„, 33 «eo. 3, €. -.0. s. 14 - 
 
 Tin /•.'/.</. /^ .1'/. •'//'/<('., Stewart, '.'(Ml. ... 
 
 Knat-'t.s, " //("' '' •'li'ill I" /(("[liil III iini'iii'i i"''». 
 
 '2J lleo. 3, c. 10, s. 13- '">' ">"' i'in»»'!ii'J"!":i "<' W'-^'Hi III- r>'"'i'< 
 
 , !■ , ,1 liiiii nl' Ihi L'liil'il SUili ", I'liiiii iiini oflltiln; 
 
 "All nxsih mil n ilisln-nl iiirui'ihiiil In lln """'■' "• ' ■ ■' ' 
 
 ., , , . ,. ,, .,,.,. .. ,. lorn " of lln liiiliil Slnti-f iiilo lln I'lvnin'i ^ ij 
 
 ihi-iilimiK ninl fiiliilnlloiix <ij till -'>'•>■"■•'•' • ,, • .. , »- ., ■; .■ i i 
 
 ', ,..,., i. , 1,111 XovH Seoul fiiiil 2\' II- liniii-ii'ii'l' : I'li'iiiiiii • 
 
 m.iillhi.iiniiiiniiit I'll lli'itixlif^i'ijii'tx^xlm^l '"' -'"'"''• ,-,,., 
 
 •,,... , iilii, itr am liirin iilnn xhull iiol I,, iniiion 
 
 hihl. mill lb ihiiil. Ill III! hiti'iitii mill i>nriio»ix, l< "< "' „..',., , , . ,..■,•.,„•,, 
 
 ,,,,.,, I r.ii I XII III In/ Iri'f'h xiili/irl.^, iiinl iii linhili hii'h 
 
 (,s iiliin SI ,"<; "liil siiill III nil i-iiSfS III- lliilili' *.' •' „•,•,. ;•,,.;,„■ 
 
 ', ..... ,. I.- .. shiiuoii-inil liii lli^ Mii,ii"lil " ■■'iii'.lii'isiiiiii Ml" 
 
 In Kllill jiilliiltiiniiinl tnrtillliri'SilSillli'll xliljiK. /' ,. , , 
 
 . . , ■ 1 • . 1 . t ,1 iinliil arroviliiiif In Itiir. 
 
 Hilil,n nua..'.al ami ..itegni part i.f if '' ., .^^ .,f ^„ („, ,,^,, „„H,„poi„il,U'U>„i.., 
 
 „l,i.ct ..f tl.e.su re«tilat.o.i.s. tluU tli. .lan.c of the ^J^^^^^^^^ \ ^^ .^ ,. „,^,,.„^ ,„„ ^,,..,,, 
 
 nmstei' should l>e (.'orrectly iiscei'tiuiiei I. , , ,i ;.»,„.., I'.iti.li 
 
 „,, „.,,,, « , orui «iu.ii'L's, l.ut the (iwiiL-rs 1.1' pn.piifti.i.". I.inwi 
 
 Tn Fvniiilx .1 <//■()//»)•(, .stewat't, '-'(K). * . ' ,, , i . ■ , ,, „„i., 
 
 sul.juc'ts, resident al.fi.ad, eamii.t imiinil iiiuUi 
 
 21 Cleo. 3, c. 2», ss. 3 and 0-(Frcc Port *'"" *^'''- y/,, Xainit. st.'wmt. w 
 
 Act)— 
 
 ,Seu. 3 e.iaets that no i.lliei' niunh, l.esiile.s 
 those which are eninneiated, .'un l.e imported 34 fceO. ,i, C. «», S. 14- 
 
 under pain of fo.-feitnie, together with the " -V" In nisi',;; nnitrnrf .„■ nitrnunid ;■' 
 the vessel. tmiisfir nf iirnjiirtif, ill iiiiif xlii'ti or rinsilA''" 
 
 See. enacts that all forfeitures under the xlinll In' rnliil or i-ffi-i-finil. for innj \m 
 
 Act shall l.e prosecuted and sued for in the same n-liiitxni'VH; lilhi-r in liiv or in i-i,iiilil. ii>'''^>^ 
 maimer as l.y the laws of revenue, t.ade, and xiirli Irmisfrr, iVw.. slnill In- imiili' h,, hill '■ 
 iiiiviKation. •*"'''• '"' iiixtriiiiuiit. in vriliiiij." 
 
 As a /•/•/;« Coiirl no Court of Admii-alty has The preanil.le to the Act mentions i.iilj >lii|' 
 jurisdiction in revenue cases, and as an Instance ti-ansferred to ISritish sul.jects, Imt tlie enwt:" 
 Court, which is the proper tril.unal for causes piut makes .lo reference to the i)rcaiiil>le. 
 of that nature, a Cou.-t of Vice- Admiralty has Held, that the regulations of the Act aprlvi 
 no authority to take cognizance of offences com- sales to foreigners. 
 initled not within the limits of its local jurisdic- Th> Fritmh Adrailurc, Stewart. '■< 
 
 I, 
 ■I. I 
 
i:t.'.7 
 
 STATITES, IMPKRIAK. 
 
 1:J.>n 
 
 .\,\ ti) ciii'ry iiitii I'Xt'uutloit till' pi'iiviNiiitm nf 
 till' Ainoi'ii'iui 'I'lvaty, (iiivi- im li^'litn nr 
 |iii\ ilc^i'N to Anii't'iciuiN, 
 
 TIk /'rnrlihiir. , SU-WM-l, ll»7. 
 
 :< t (iro. :i, c. lOll, n. (I ( I'rlxr Art) - 
 
 Itv tlii.'4 Act till' |ii'i''i'iii|it jdii n|' |iri/t> mIiIjis 
 «,ii tn III- iill'i'ii'il to till' Niivy I'liiiml, mill nf 
 .11113, iii'iiiH, uiiil oi'iliiaiiuf Htmi'H, to tlu" Onl- 
 
 mil JlcMii'il, ti> 1)1' |iHiil for liy liilln or (Icliciitiirfx 
 
 ui'i'iiiiliiiK to 1^ viiliiiitioh. It i'\t('iii|('il only to 
 
 l<lll("<, llftt'l' coMili'liinittioii, iiikI it in to lie ('oil- 
 
 rlii'li'cl from it, tliiit r\i'ii tluii, llif MiiJL'Mty'N 
 
 ottiirix ill tliosi' ill |mrtiiii'iitM, \\oiilil liuvu no 
 
 liL'lii iif |)ri'.i'iii|itioii uitlioiit Niicli |iii\Mr iiiviii 
 
 tlii'iii. 
 
 77(1 f '»,/. ir, Sti'Wiiit, .■(•_'!. 
 
 :(1t A \n (ico. a, c. 01 - 
 
 lllr(|llilrK till' jlliy, ill c'llMi'S of felony, t'ti'., 
 ulii II c'Vicli'iict' of iiiMiinity luis Ihtii ;.'i\ill at till' 
 tiiiil, to liiiil I'spt'cially wlii'tliir the [.iiity was 
 ili*iiu' « lii'ii till' ui't was I'oniniitli'il, ami pin. 
 viilfx fdi tlii^ I'liNloiIy, if foiinil insane, until tlio 
 |ili.'ii»iiri' of the Crown uliall ln' known) -- 
 
 //'/'/, tliiit the Crown as \\n- /ntn ii" imtriii is 
 iiiiitli'il, liy ItM inlici'i'iit ])ri'rojj[ativt', to tlio cum- 
 I"ily of all iiisiint' persons, for the ]iuipose of 
 ]init('itini,' tlie eoimniiiiily. 
 
 It is the duty of the Kxeeiitive Coveiiiinelit 
 if the I'lovince to assiinie the eiistoily anil eiire 
 of iKTsoiis aei|iiitti'il of criniiiial eliarges on the 
 groiniil of insanity, wliieli lUity, hy the eoninion 
 lawiif F.nnlanil, is vesteil in the Crown, 
 
 V""'' y. M'trtlii, James, S'iiJ. 
 
 41 Geo. », c. IMJ- 
 
 I'mver given to His Majesty to regulate the 
 
 fees til he taken in theConrt of Vice-Ailiiiiralty. 
 
 'J'hi' H'lmm, Stewart, r)i)0. 
 
 Tlie lightH anil powers of eaptnra anil prize 
 .igfiits, ovei' captures anil jirooei'ils liefore final 
 seiiteime ilefiiiuil. 
 
 77ii //i;'A/»iM', Stewart, VIS. 
 
 tSlieo. 5J, c. 40- 
 
 Wheru the enactment is that the motion is to 
 I'O iiiaile in open Court, it is clear that the Jiiilge 
 is not to have any power in the matter. 
 
 CoUit V. Morni, 1 H, & (i., 4-27. 
 
 43 Geo. 3, c. 99, 8. 24 and r. 161, s. 10 — 
 
 All appeal was given by these Acts to any per- 
 >"ii \\\\u shouhl think himself overcharged or : 
 "wniteil. A party who had )>een, hut b'lould 
 'I'll have been rated at all, had an appeal under 
 lliesc Acts. 
 
 McGreijor v. /'aferioii, 1 Old., 211. [ 
 
 ' 45 (ieo. !l, V, Vi, ». 'iH - 
 
 " 7Vii imi'til riihrilliini liitiifih nv i m/iiiir, !■■ il 
 It, i,iirihn->i iiiii'hI itiifi 1 j'diiinl nii himril j'ltn i'lii 
 'lli/11 irilhtiiil lifiii'i iiliinj III iiiiiili iillin>inii," 
 
 'I'hiH is limited liy the woriU of the Act to 
 
 Xessels liiniight into the ports of (Jreat lll'itain 
 It was not the intention of the I.egislatllle til 
 extend this power to the Colonies, Without 
 
 siR'li express atithorily they loiild not he pin 
 chased or sold liefoie coiideiniiation. even in 
 Cleat Itiitain. 
 
 77/1 C'lirlnr, Stewart, .TJI, 
 
 4.1 Geo. », c. Vi, NN. at, l!i niHl .Vi 
 
 Sit, .'II cliiii'ls lliat •• iiri:i sliiill, ii'illiiilil 
 lil'i nliiini liiilli, slmi iiiilil llii sunn nlmll. Iii/jiiinl 
 XI nil iii'f, hiii'r liiiii lilliii' iliiii'iil iiiiil ills- 
 ilmrili il. nf ililjililiii'il mill fiiiiilriiiHi'il iin lilU't'iil 
 , jivl.ti," or sui'li order as is there directed •• slmll 
 llili'i liiill }ililili fnr ri II iishl'l II)' ill liri n'lni tin 
 miiiii ." 
 
 S, V.i. Cpoii fiirtliei proof, the .liidge shall 
 cause, if he shall think lit, the goods to he nil- 
 laden, and shall cause tlieiii to lie put ill piopci 
 warehouses, villi sepaiate links of the Collec 
 tor mill the agents eiiiploycd by the captors and 
 claimants. 
 
 S. ,VJ, relating to ajijieals, the orders are 'Mo 
 [ have the capture ajipiaised as aforesaid," 
 
 'I'liese are the only two cases where unlivery 
 is directed by the Act, on further proof and on 
 appeal. 
 
 'riioiigh the jiartics who ii])]ily for the order 
 
 of ap|iraisenient are to bear the expenses, this 
 
 gives them no additional right or control over 
 
 the ])ro])erty. The custody is still to be joint. 
 
 I.'i Miriiil, Stewart, •2I!I. 
 
 4.1 Oeo. :), i>. t2, 8. 31— 
 
 \o luithority whatever is given to the (.'oiiit 
 to release or deliver the cajiture, eithei' on bail, 
 by sale or by any other mode, before the hearing 
 of the cause, except where there is danger of 
 perishing. 
 
 Thi Curb II-, Stewart, .SI."). 
 
 45 Geo. 3, c. 12, s. 32- 
 
 ( Providing for condciuiiation of prizes to His 
 Majesty for breach of His Majesty's instruc 
 tions) — 
 
 This case was decided upon the common law 
 of the Court of Admiralty, and the vessel con- 
 deinneil, not for the use of the captoi- or pur- 
 chaser, but to His Majesty absolutely, not as a 
 droit and peniuisite of Admiralty, to which it 
 bears no resemblance, but to His Majesty, jure 
 roronai , as a portion of that original right to all 
 captures which, in this case, from a breach of the 
 
1359 
 
 STATUTES, IMPERIAL. 
 
 13(i0 
 
 ormditioiis ot the giant, luivu not lieen divested | 
 
 out of him, hut in sulise(iuunt rrize Acts, as tiie ' 
 
 4.') <;eo. 3, uap. 72, see. .S'2, it was expressly 
 
 enacted, ''tliul it iliall In- lan-ftdfor /lit JikIiji: of j 
 
 ih Jlliih Court of Admiraltji, . . . itpon \ 
 
 I'voof of /lie linnrk of (uiij of ///- M<iji ■•<>!/'■■< ^ 
 
 lii-ifrnrtio)ii rilaliinj to jifii< s, or of any ojfi-nn. 1 
 
 (niaiiix/ the ln\r of natioiii, . . . to rondunn 
 
 Utt jiriu to Hi-< M(i,h ■■'tfi "-t iiihI tll.iji0''(d." j 
 
 Ln /i(iii< dis .l)i;/«s Stewart, !) ; 
 
 Tilt Htrkhivr, Stewart, 141. 
 
 i 
 
 t5 Geo. 3, C. 1% s. 84— 
 
 (Relating to unclaimed or forfeited shares of 
 
 prize money) — 
 
 Tin B( rminln, Stewart, "i.')!. j 
 
 15 Geo. 3, c. 72, s. SI — 
 
 •■ Eccru iiijrnt .... sli<dl 
 
 ii-i(Iii)t four iiiiiiitli.1 .... riiiiit all iin- 
 chiiiiii'il liiiliiiin.i iiiid .ihcroi. (i)id id! sliiiri-s 
 if run mill Co tin; TrrKisiirir of (trii-iii'-irlt 
 
 UoKllWtl." 
 
 Such prize money is not a suhject matter for 
 the law of the I'lMvince to act upon. 
 
 Tin Bi rmiidd, Stewart, •J4II. 
 
 48 Geo. 3, C. 123— 
 
 Knacts that the api)lication must be ma<le in 
 
 term time to one of the Superior Courts, which 
 
 shews that the Lt^'islature intended that the 
 
 power should he exercised l>y the Court, and not 
 
 hy the Judge. 
 
 Collit V. Mori II, 1 K. i>c(i., 427. 
 
 49 Geo. 3, c. 49, ■■oiitiiiiK d hij 
 52 Geo. 3, c. 20- 
 
 ( Lawful to import into any port in Nova 
 Scotia, etc., whicii His Majesty shall appoint, 
 certain goods, etc.) — 
 
 Till: Eroiioiiiij, Stewart, 44(i. 
 
 49 Geo. 3, c. 101- 
 
 ".■1// /luialtiis ami forfitiiri-t irliirh may In.. 
 iiwiirrtd iindir any Acl< for junaltii-s, inrnrrtdl^ 
 ill till British Coloniis iindi r any Imr rdntin- to 
 traih or rtrtnm, may he jirosirutid or smd for 
 in any Court of Record, or Vict-Admiralfy 
 Court.'' 
 
 Hi Id, that under this Act the Vice-Admiralty 
 
 Court, at Halifax, had jurisdiction to decree 
 
 forfeiture of goods under 12 Car. '2, c. 18, s. '2. 
 
 Tilt Proridenrt, Stewart, 199. 
 
 49 Geo. 3, C. 123, s. 13- 
 
 (Provides mode of demanding and receiving 
 prize money)— Provisions discussed. 
 
 Tht Btrmudu, Stewart, '236. 
 
 52 Geo. 3, C. 20- 
 
 (Continues 49 <ieo. 3, c. 2.'> and c. 4it, ami .",i| 
 
 <ieo. 3, c. 21, till -March 2.->th, 1.S14. Th.^. 
 
 Acts permitted certain importations into Nuva 
 
 Scotia) — 
 
 S'. 49 Geo. 3, c. I"J. 
 
 51 Geo. 3, e. 97— 
 
 (Sale of livnd of Crown hy Commissioners) — 
 //(A/, not to authorize them to sell lain! oi 
 the Ci'own which had heen in actual tiiiiiiL'h 
 wrongful pos.sessicm adverse to the Crown Im 
 upwards of twenty years. Intruders jiidtiridl 
 hy 21 .lac. 1, c, 14, until judgment in iiitrii>ioii, 
 Watt v. Morrl-s 2 I'.ing., X. ('., lS!t. 
 
 Smtt v. //' »</'/•-»)'/, 2 Tlmni., Il.'i. 
 
 11 Geo. 4, c. 20, s. S2-t f. 17 A is Vltt 
 c. 104, !3. 211- 
 
 (If hy shipwreck, cajdure, or any cause \\h:(i- 
 ever, any .seamen are cast away, or left, orhu in 
 distress in foreign ])orts, the governor, niiuisitr 
 
 I or consul, or if none, two I'.ritish nu'iciuuits, 
 are required to sulisist them and In scud tln'iii 
 home) — 
 
 i //ilil, tiiat as ilie Statute had failed In exiiiess 
 the ultimate liahility of tiie owner to disclmrgo 
 this duty, or to hear the hurtheii rif it, it oie- 
 ated none and recognized none. 
 
 The Statute not merely "hows that tiierc i> ii" 
 duty on the owner, hut tlial it '\as nni niio 
 thougiit proi)er to impose on iiini, hiil r.ulni :i 
 public charge. 
 
 Miiaiii-on V. C'o;;('«", .Jaiiics. ."7:!. 
 
 3 A: 4 Win. 4, c. 27- 
 
 Abolishes writ of pai-tition at cnimnou law. 
 UCaiii V. Hoxiirman, 2 X. S. 1).. 41:!, 
 
 3 A; 4 Win. 4, c. 27, s. 2« - 
 
 Abolishes writ of waste as a distinct f<irni "1 
 action, and the action of waste is nnw in the 
 form of an action on tiie case for damages, lii 
 I an action for waste, 
 
 ' /'. )• Desliarres, .T.— I may remark that thi> i- 
 a form of action which has hmg heen disused in 
 Kngland, and one which, so far as my kiinwloLf 
 ', extends, has not been resorted to here. 
 
 Titwi It al. V. .S'k/m it al, 3 N. S. D., 4!i:. 
 
 3&4Wni. 4, c. 42, s. 3- 
 
 (Limits the right to sue on bonds, or to iniii.' 
 action to recovei any land, to twenty y«u*> 
 and any acknowledgement to take the case 'ii:t 
 of the Statute, must be in writing)— 
 
 This Statute had not been adopted in il"' 
 I Province (1863) and prior thereto it was in'Vtr 
 
l:5(U 
 
 STATUTES, IMPERIAL 
 
 13G2 
 
 1 Jfc-.» Viet. €.110- 
 
 Fipiiiit'il tlio iiumU'1 fur tliu ))i()visiniis relating 
 
 neL'f>siuy tliiit llic iiukiiuM kHlgiiK'nt, wliicli Wiis 
 til relmt tlie presiiiiijitidii of piiyiiu'iil, slioulil hv 
 
 111 \\ ritiiig. tr) ai'ii'st III! //ii >//( /ixirissiu tlio " XfW l'i'iicti(.'e 
 
 Marliii il ul. V, llariif^ it n/., 1 Old, 3it;$. ■ .\^.^ •' f|f jsi,-,;) ^._ 4_ 
 
 M>-I)oimlil V. Fm-or, .S I{. & C, '.'Mit. 
 
 .{ X 1 Will. 4, c. 42, s. 28- 
 
 I'liiiii tliis •Jiicl I'. S., I'. 8'J, s. 4, is IxiiTowetl. 
 
 •Jiiil H. S., t-. S'2, SI. 4, is preserved at page .'?.'{ 
 of .\|)iK'iiili.\ A, to r)tli R. S., and enacts — 
 
 •■ I'/iim 111} ih Ills III' siiiii.i iiiiijuhh' lit II I'irliiiii 
 h'liii. III' iitlii rn-i'si'. tlir jiii'ii. iitiii till- Ciiiirt 
 
 ii'hi I'r tlii'i'i- Is iiiijili'il. ml till li't'iil III' iiiiij I'ssiii' 
 'II' I'll'lllisitilill iif ihliiiilijrs, lllilil, if till II think 
 III, iilliiii- iiiti nst J'rntii till' tiiili' vliiii siirli 
 ilihls III' sums I'li'tiiili ii'ii'r iiiiijiilili'. if siii'li 
 ihhls III' Slliiis III- iiiiijiihir III/ I'ii'tlli' I if SI I III I' 
 ii'i'lllill iustl'llllinit lit II I'fl'lilin fillir. III' if l"'!l- 
 
 ./',/. iiiliii'ii'isi . tliiii fi'iiiii till- linn ii'lnii III!' 
 'Iiiiiiiiiil iif piiiiiiii'iit sliiill liiirr liii-ii iiimli- III 
 'i-riliiiij. siliii ilriivniils ijirilHJ imtii-r In llir 
 ,1,1, till' flmt iiili'i'ist ii'ill III- rliiliiiiil fi'iiiii llir 
 
 .l.llr tin , ■inf." 
 
 ;{ .V 4 Win. 4, c. 4'2, s. "is, imitaiiis a pro- 
 viso declariiif,' "that interest sliiill he ])ayiilp|i' 
 in iill eases in whieii it is now payalile liy law,'' 
 niiirli is oiiiitteil in the Xova Scotia Act. It 
 Wiis contended that its omission excluded evei'V 
 .use not within the Statute. 
 
 //'/'/, that it was ini])ossil)le to ado])t tiiis 
 ciiiistniction, which would ))ievent the reeoveiT 
 "f interest in a multitude of cases, which our 
 I,t'i.'islatuie never could liave intended to aliro- 
 L'iUc. rile more rational construction is, tiiat 
 tiie jiroviso in the Knglisli Act was omitted in 
 iinr Revised .Statutes because it was tliouglit to 
 lie, iis it really was, unnecessary. 
 
 Interest is reeoveralile on goods .sold on credit 
 Imm the date on which the credit expired, 
 wjicic sucli is the nsage of trade at the place 
 »iii'ie the goods are sold, although there may 
 liiivc hcen no jnevious dealings lietweeii tiie 
 piiitics, no engagement to pay interest, and no 
 miticf under the Statute that interest would lie 
 claiiiiiMl. 
 
 Tiie object of the Statute wa.s to extend the 
 
 right to recover interest to those eases nien- 
 
 tiiiiifil in the Statute, in which ])revious to the 
 
 Statute interest cfinld not have liccn recovered. 
 
 Ikinmrman c( al. v. Fiilkrtoii, 1 Old., "JW. 
 
 n A; I Vict. c. 85- 
 
 1st Rev. .Stats., e. l.S.">, " Of Witne.s.ses and 
 Kvidence and the Prfiof of Written Documents " 
 s. 11, is a transcript of fi & 7 Viet. c. !S."> (l.oid 
 Deiiiuan's Act). 
 
 L'lider 1st Hev. Stats, c. i.T), s. 11, a party 
 directly interested in a defence, who liad iiulcm- 
 nitied the defcmlant on tiie record, and who 
 stated that tiie suit was defemled on ids indi- 
 vidual liehalf, was jicld inconipeteiit as a wit- 
 ness. 
 
 JohiisloHi V. /I'/v //f(/(, , James, 14; 
 
 /,'/(>>•.// V. Miir^liiill, .lames, .S.'iO. 
 
 1 & 8 Vict. c. 0«, s. 3 - 
 
 ■• Kn-I'll ,l('l'.Siill Hull' liill'll. Ill' lll'l'lilftl-)' tn III- 
 hiil'li iillt iif Hi-)' Milji-stifs iliihlillinilS. lif II 
 iilntlli-l' liiillij II ililt ili'ill-liiii'a snlijii-t III' till- 
 r nihil K illi/iliiiil, sliiill III- nijiiililr Iif till, iliij Id 
 liliii. Ills liiirs. i-.i-i rutin's ur uihiilliistl'iitni's. ninj 
 
 \cStlltl-. I'llll III' jll I'Slllllll , lllj llll'isi- III' /llll'I'llHSI-, 
 
 ' III' iiilii-ritiiiii'i- III' sum ssinii." 
 
 Sii ALIEN, 1. 
 I liiH Vict. c. 101, .s. 3- 
 
 I It is enacted Iiy this section and liy S & 9 
 Vict. c. 1(1, s. (i, that before an order of filiation 
 can be made, the evidence of the mother must 
 be corroborated in some material particular by 
 other testimony, to the satisfaction of the 
 .Justices. 
 
 .Srd R. S., c. !)!, cf. .")tli H. S., e. '27. has to 
 some extent adopted the same principle. It 
 does not in terms re(|iiiie corroborative evidence 
 of the charge, but it permits 'he reputed fatlior 
 to give evidence, and it directs in sec. !l {sec. H) 
 in 5th series) that on appeal "the whole matter 
 may bo heard and triecl by a jtiiy as a civil 
 action.'' Where the mother, tiierefore, an<l the 
 le'aited father are both examined and directly 
 contradict eacli other, and tliere is no sufficient 
 corroboration of the charge, the ordinary rule 
 to some extent would seem to apply. 
 
 Onrsi.i rs of Poor v. McLillan, 
 
 3N. S. I)., 9.-.. 
 
 6 k 1 Win. 4, c. 32- I & 8 Vict. c. 112, s. 15- 
 
 Omiparison of this Act under which Ruilding Is founded on 5 & H Wm. 4, c. 19, s. 1,">, and 
 
 ^"oieties are constituted in Kngland, with 12 was the model for .Srd R. S. (\. S.), c. 7o, s. 24. 
 
 ' itt. c. 42 of Xova Scotia under which they are It was the object of the Legislature in pass- 
 
 wnstituted here. ing 5 & G Will. 4, e. 19, to assist mariners in a 
 
 Slaytf.r v. JoIuikIoii it nl., 1 Old., 302, speedy recovery of tlieir wages, and for that 
 
l.Sfi:} 
 
 STATUTES, IMPERIAL 
 
 13(i+ 
 
 piirpHse to givr U> Mii,i.'istiiitfs a simiiiiiiry jiiiis- puali'il, wliiiOi iirc uiipli.Mlik' U< C.nxtiil.li- and 
 
 tiiotiim when the (|iif»tioii of w ages was merely otlier siil">nliiiale otlKeis. Tliese two .s.m|i,,i,, 
 
 ill ilispute; but it «as< not iutelHleil to eiialile are tlie <.iij.'iii of "iir law, -Jail U. S., e. I.'.l, >.iim 
 
 tliciii to ileeide upon intricate nuestioiiM of for- as .')th H. S., e. I!», "Of tlie I'roteilion ,,t ( m 
 
 feiture, whether aiisiiii.' from imimteil ik'seitioii. stahU-s." 
 
 (lis(.heilieiieeof(,raeis. or from any oilier eause. ■Jml U.S., e. loll, thoil-h it does not ful!,,« 
 
 C-rtirlni v. AmhrsoH, 1 X. S. |)., ;{s:.. hterally, very closely pursues 11 and I'.' Vj... ,, 
 
 44. 
 
 •2nd 1-t. S., c. l.'iU, is lu produeed in ."nh K. >., 
 , Idl, Ks. V2 ■_'.") iiulusive. 
 
 Midtxijor V. Puii>v-^on, 1 Old.. '.Ml, 
 
 11 k 12 Ylct. c. »S - 
 
 •M-a II. N., e. !71, ss. !i!»anil l(K» (,f. W. S. ( .. 
 174, ss. 'J.'iit and •Jlilt), are foundeil on II an.l 
 .' Viet. e. 7S. 
 I'reviouH to that Act a praetit 
 
 ; JL' 8 Vict. €. 112, s. 11- 
 
 (Wheii a ship is sold at a foreign port the 
 crew must he sent home at the expeii.se of the 
 master. Or whenever the services of a seaman 
 .«hall terminate at any place ahroad, the 
 maste"- is reipiireil to give him a certificate 
 of discharge, and hesiiles his wages, either tind 
 him einphiyment on hoard of some other British 
 vessel homeward hound, lU' furnish the means of 
 
 sending him hnek to his ,,ort of shipping, or istcd where any ol.jecti.u. was taken on li,.. i,;,,, 
 otherwise provide for his passage home. And "f a .lefendant, or oecurrcd to the .lu, Ige ,„, a 
 in all cases of wreck or loss of ship every sui- erhninal trial, which the.ludge deemed w„rtl,y 
 vivin.' .seaman shall he entitled to wages up to "f more mature consideration, to take the „,mi. 
 the time of loss, whether the ship shall have i-n of the jury upon the facts proved, and f. 
 
 1 1 f.. ; ,i,f ,.!• ,.,,f i.r,.vi,l..rl that reserve the (luest loll for the consideration ot all 
 
 iireviously earnetl freight or not, (HON Hit II mat , -r , i i ■ , 
 
 Le shall pro.luce a certificate of the master that Uie Judges : and if the .ludges, or a ma,,nt.v ..t 
 h.. had exerted himself to the utn.o.s, ,., save them, were of opinion that the oh,,ect,oi, ,,the, 
 the ship, and car.., ami stores)- ^o the indictment or the evi.lence wa- w.h 
 
 n,M that the crew had no right, where f""'"l-l t'"-' defendant was recmmeiidnl ,., 
 there had heen a salvage, to have their passage , the Crown for a pardon, 
 home provided out of the proceeds thereof. ] • ' .' - i 
 
 Milfim-oii V. ("'()»)( f(/i, .lames, .S7.'{. 
 
 i 12 A- 13 Vict. c. 10« - (Ensllsli Bunk- 
 
 8 i 9 Vict. C. 10, S. «-- o I A iiartv cannot attach dehts due an K.nghsl, 
 
 .S'm IAS >ICt. C. 101, S. i. ,,.^„|.,,„j,;,^fi^^^,.ti,e„V,/of l.aiikrui)tcyhasissue,l. 
 
 ///// V. (loo'lall, 3 Mur.l. Kpii.. IW; 
 Fm-^ir V. Morroir, -J Tlioiii., •J.'i'J. 
 
 8 1- VIct. c. 80, s. »4- 
 
 Kiiacts. •■Hull >i-h<ii (i»i' s" I'fli-n nx (Ik I'ro- 
 pi-rhj ill ini>i uln'ii nr vikkiI, nr ninj jmrt tlnnnf 
 hihniijiiiij til innj "f III I- M'ijint!l'.i sulOi'i'l"- 
 shall, iiftir riijiMi-ij thivifif, '"• .>"'/(? ^. niiij 
 othir nr (ithirn nf Jl/r -V<(./c.s7//".n milijirts. tUi- 
 siiiiH- shiill hi' iriiiiKfirri'd hij hill <•/ >"''• oc 
 of III r iii.itndHinit in vritimj. i-nutniniiiij a rc- 
 <:itnl of tin- i-orlljh-iiti' uf niiixtrii of xiirli shiji 
 or Vf'ssr-t, or tin- prini'ijuil cuntintx thinnf. 
 othrrifii'i' siirli triiiisfi-r skull mil hr rnltil in 
 pffi'i-tmil fur invj jinrjioni- 
 
 Itnr iir iijuit'l." 
 
 12 & 13 VIct. C. 106, s. 182- 
 
 Forhids the proof of a deht or the entry uf any 
 claim against an insolvent's estate, without Hi-t 
 reliiKpiishiiig any action or suit hrouglit ;,y a 
 creditor. There is no douht hut the civilitiT 
 then may make his election, llut neither tin 
 ■Statute of 1S(>9 nor that of 1H7.') has iutio.lnceJ 
 this provision, which would seem to have liteli 
 , recognized hv the earlier Knglisli Statutes. 
 ^|■hl,tl■^■l■r. ,Hh,r in ^.^^^ even "this .Statute does not pn.vi.le for 
 actions non-existing a. he date of the assign 
 
 It follows from the.se wcids, that where there 
 
 I meiit. ., 
 
 is a sale it must he followed iiy a transfer con- | Murray tt al. v. AVs, '2 R. & C, l-'-t 
 
 taining the recitals in the Act. 
 
 Cullai V. MiFarlnm d al., 1 N. S. 1)., 4fiS. 
 
 11 & 12 VIct. c. 44 - (Protection of Jus. 
 
 tices) — 
 
 Repeals so much of 24 (ieo. '2, c. 44, as relates 
 to actions against Justices of the Peace, leaving 
 
 12 A 13 VIct. C. 108, 8. 33- 
 
 15y this section no motion for a re-hearing <i' 
 any order under that Act shall he iwtiveil. 
 when three weeks shall have expired afier il"' 
 order complained of sliall have been nimle. h- 
 a case where the order of the Master of tla' R"!'^ 
 
 the sixth and part of the eighth sections uiire- i was pronounced on the 'ilst of Dec, IS.h »" 
 
l.'JOr. STATUTES, IMPERIAL. l.MOO 
 
 h;i^ 111 It iliiiwii u)> till siiiiictiiiU' iifU'lvvai'cls iiijil il<' not iipply to tlic liiso nf |iii.icfiliiii.''< nuMinst i\ 
 
 iiuticf i)f appeal iiai) licfii t-civi'd witliiii tluti' foreign (•cpiiii)aiiy carrsinL' <>u Im-iiii'^s alnnail. 
 
 wifk?" afliT the diilei' Was ilrawn lip, Imt ii'ii Mtlici' do ss. I and '_' nf ."tnl ];. S. i-. KU. 
 
 witliiii tliieo weeks from the time it was pi'i- part II. 
 
 imiiMied, tlie Lonl Clialieellof held it was too /,'«//(./// v. Si/ihi' 1/ <iiiil l.miiJnirii H'lid,.. 
 
 lute. "Aiiofder of tiie Coiilt of Clianeeiy," lie •_• \. s. 1)., 7;{. 
 said. " iiowover loiij,' a lime may elapse in the 
 
 iiiiiii>teiial duty of iliawini; uj) that older and 15 A' 10 Vlft. f. Ifi, S. 1'2S aiUl 121»- 
 coiiiiriittinu; it to paper, is made to hear date 'I'hese sections were the model for >eis. l.'i.'Jaiid 
 nil the <hiy when it is iiioiioiiiued hy the Court." |;i4 of 3l'd H. ,•>;,. e, \:\\. W'jiilst the Kngli-h 
 'I'lie order must Ke eoiisldeieil as made when Aet emlio.lied t he provisions of JUu. ( ieu. of tin- 
 it is ilelivureil. K. 11., ('. I>. and K\eh. U. T.. lehitive to the 
 l'„nlo„ V. /;»*■-/..•-' I!. \C..:U!t. j.^.^.j^..^, „f j,„|^„„.„„ ,,f ,„„,,, ,!,.,„ ,„„ ,„„i 
 
 fifteen years old, and whilst the enaelnieiit of 
 
 VMi 14 VICf. C. 03, S. 04 - that rule stood prominently hefore the eyes of 
 
 •• .Vo si-diiuni I'-li" is I iniiiiiril fur II rniimii our legislators when legislating on this partieii 
 
 (n- I iiijiiijiiiinit I'-liiili is til Irriiiiii'ih ill tlir I'll' suhjeet, our legislature, copying word for 
 
 /■/(//'■'' Kiiiijihiui. slmll '.< iiililUil In sue wold the provisions of the K.nglish seetioi>aiiove 
 
 III. , •mill fi,r ii-iiijis ill ini'j Ciiiirt m- l,if,ii-r •m:/ mentioned, has thought |)ro])er not to adnjit into 
 
 .luslii-i-. liiiJiss hr is ih'srhiiri/ril ill tin in, nun r 0111 Statute ) k the ])rovi.-,ions of .sertion i;U, 
 
 ri'jiiiriil III/ Nil ■■ tiiiiinil Ml rrlnnil Sriiiiiuirs wlih-li expressed the rule ahove referieil to, 
 
 ,1.7." iiikI ii-ilh till- ii-riffi-ii riiiisiiif >,/ Ihr l-'nmi this eireiimstanee we eaiuiot hut infer that 
 
 „t'istii\ III- //cores siirh HI iisiioi- "ti Ihr /"irf nf "I "'>•* tin' intention of our legislature to impose 
 
 till hiuslir. nr hi/ his iiiillini-ilit. IIS In irn m' II I "" •'"•'• "f 'i"ii' "" t'"-' t-'xeivise of the right eon- 
 
 r.iisiiiiiilih- iiii,irih''iisinii n/iliniiirrtn thrii/' nf fi'ifed l.y sv-aion i:U, relatively to ol.taining 
 
 surh xiiimiin liii frhxiitiiiiii en liniiril: Imt if e.\eeutinn.s of ii .judgment in the mode preserii.ed 
 
 (I inj Kill mil 11 nil his Viliini In llii I'liiliil Kili'J- "y ''''■" ''I'l'tlon. 
 
 *'..)/( jirni-is thill Ihi iiiiislir nr iiinnr hiis hnu Cratu \. .far,,l,<. | N". S. I)., |,S7, 
 
 ijiilllil nf miij fniiiliirt nr ilifnill. I'iiich. Ii'l this 
 
 1 liiliilllilll. Ii-nlllil lini-r I lititliil thi Sl-iliil ■/ In 15 A' Ifi \M, ('. «0, S. 130 — 
 
 sin fir I'-iii/is liifnri Ihr ti riiu'iKitinii nf ,iii i4t!, K. S,, e. !t4, s. l(Mii|. \, is identical \\ it h 
 
 Vinliiili' nr iiniiiiinin III. hi- slnill In i iilith il In this; -- 
 
 rifiifir ill nihlitimi (n his n-nijis. Slirh iniiiinii- 
 
 siitinii. lint i.i'rriililiil .£'JI), iis Ihr CnlU't nr 
 
 Jiisliri , hiiiriinl Ihr riisr. iiimi think rnismi- 
 
 iil.l, ,- 
 
 Where sliipj)ing articles were in the lollowing 
 til 111.- : "From London to any jiort in Spain. 
 thence to Newfoundland and I'.ritisii North 
 
 .\,Mciica, United States. \Vest ludies. M.-di- ^. ^ ^^ ^.,^.,^ 104 - ( MerCliailt Sllip|llllS 
 
 tci laiiean ami ( 'ontmeiit ol Kurope. hackwards • . iq-i> 
 
 iuni forwards, in the prosecution of the New- ... ■ ■ ,, i . ., ,.; „ ,i , 
 
 ' ' i racing .t up, there can he no r|iiestlon that 
 
 fc.mdland trade, an.l hack to the li.ial port of ^^.,_^,^^ ^^^.^ ^^^ ^,^^^_^^, .^^^^^ .,,,,,,,„(„„, j, ,,-,,, t|,., 
 
 di>, harge in the United King.loin, such voyage ,,,,,^. y,^..^^^^,.y ^,t i„ f,„,,,. 
 
 not to exceed two years. ^j^j_^_.^. _^f j,^^ ^.,^^,.^^^^^ enactments relating to 
 
 ll.hl, that the .seaman couhl not sue in the ,,.j,i,i,^,tf„„ „f ,,i,i« .,f .^^es of ships from their 
 
 \ i.e-Admiralty Uourt, not li.ivmg heeii dis- ,jrst origin, give,, and -liscussion at great length 
 
 iliaiL'ed as directed liy the '" (Jeiieral Merchant r ., . i. . i , .. » ,- ,, , f .i \ ,, 
 
 oi the jiolicy ami construction ot the Act. 
 
 Nuiiiaii's Act. Thetitle'to a IJriti.sh ship is not atfecteil hy 
 
 Dak V. Th, Shiji Vilorili,, .lames, :m. ^,,^, ,,,.,;,.,.,,. „f ,, „.,;, „f execution to the Sheriff 
 
 against the owner of the ship. Nothing will 
 
 15 & 16 Vict. C. 16, SS. II and 18- iirtVct such title except registry, ii8 reiiuired by 
 
 These sections, to which ."nl H. S., c. l.'U, the Merchant .Shipping Act of I.S."(4. 
 
 I'iirt II, SS. 1 and 2 correspond, were introduced Cdhonii it al. v. Morroir, I Old., 14S. 
 
 H." a sulistitute for the (dd jiroceedings to out- 
 
 luwry which could only he against natural per- Disiiualiries aliens from having and holding 
 
 SUMS. iiny share or interest whatever in a British ship. 
 
 Sections IC), l.S and lit of l."> ct l(i Vict. c. Tti, Plaintiff, heiiig an alien, purchased from A. 
 
 II A ISVIct. e. »1- 
 
 One of the Acts regulating the right and 
 ainoiint of tolls to he taken for goods and trat'.v 
 on railways. 
 
 Jkii/soii V. 1 1 mini Trunk li'ij Co., 
 
 •1 N. s. 1)., 4(is. 
 
:V>7 
 
 STATUTES, IMPERIAL. 
 
 i;{tis 
 
 S. ciiic fdiirtli lit till' M'licMiiur Aiiuoiiiiihi. The 
 imii'licisi' iiiiiiK V wMfi piiiil, liiit tliiTc NViiH nil 
 t'linlract in writiiiL', nnv wiis iiny liill nf salt' nr 
 IransfiT I'Vir ilcniamU'il liy ]ilaintiH', lnit it was 
 agieeil tliat, in tliu I'Vtnt of A. S. (wIki wan still 
 to 111' I'diisiiluri'il sole owner as ri'^'aiili'il tliiiil 
 putii's) si'Uinj.' tlie tlirt'o ri'niaininn fourths, he 
 shoulil also si'll till' plainlill's fointli. 
 
 A. S. Iinvih),' ilii'il, his cxi'i'iitins suM his 
 intiTcst, lint iliil not sell that of ))liiintill', who 
 then liroii,i.'lit thisaetion for lireaeli of tiie ai,'rei'- 
 int'iit. 
 
 11' III, ti at iilaintitf, as an alien. Iieini; 'lis- 
 ipialitieil from taking a liill of sale oi' tiansfi r of 
 a r.iitisli vessel, uniler 17 & IS Viet. e. Iii4, 
 an 1 the ai;ieenient sneil on liein^r an atlenipt to 
 evaile the Statnte, eoiiM not lie enl'oiceil. 
 
 Ciilfni V. JfrFarldiK ■fnl., 1 \. S. 1).,4(JS. 
 
 //'/'/, tlial the ligilt of nimlel'ately eolieetilig 
 anil tlogging a scatnan was not taken away fi'oni 
 the master liy 'JOco. '2, e. 'Wl, or 17 't IS Viet, 
 e. 1(14. The power of the master, so far as it is 
 necessary for jiieserviiii; the due sulioriliuation 
 of till' erew ami the ilisei])line of t)ie ship, has 
 not lieeii aliroL' ited liy reeent enai'tments, 
 
 (loi-'liiii V. t;r,ril<fii, I X. .'■i. 1)., Sit. 
 
 II A; IS Vict. f. 104, ss. IS, 38, ;W, .»«, 
 
 102 ^- 103 ^ 
 
 It follows from thesi' seetions, eoujileil with 
 others, that no nni|ualitieil jierson or limly of 
 |)ersons is entitleil to any le;.'al or lienetieial in- 
 teiest in the shi]) or any share therein, ami that 
 no niii|iialilieil ])erson may aei|iiiie anyeipiity in 
 respeet of the ownership of a liritisli ship. 
 
 Theie is lint one way liy whieli a person 
 Ipialitieil til lie can hecriine an owner of a IJritish 
 ship miller this Act. ami that is hy a transfer or 
 Iliil of sale inaile ainl execiiteil in the !"■ .m pre- 
 seriliecl, 
 
 Ciii/ni V. McFnrhuK >'al., 1 X. ."<. 1)., 4SI ; 
 (IfHiil V. liohirfsoii, '2 X. S. 1)., 1^47. 
 
 n k is Vict. c. 104, p. 10»- 
 
 (4lh R. .S., e. !(li, s. ;{], 7. /•. is foiimleil on 
 this)— 
 
 Certificate of registry of I'ritish ship must lie 
 receiveil as /irinid I'ncii , or, as our Statute ex- 
 jiresses it, as presumptive proof of all the mat- 
 tei-H containeil or citeil in such registry. 
 
 Siiii'li V. Fiil/f)H If (il., •_' H. a ('., •22."). 
 
 Makes a eertitieil copy of the register of a 
 mortgage /iriiiia farli jiroof of all the matters 
 containeil fir reciteil in such register. 
 
 Oxh y V. Sjiiarird/ir, I X, .S. ])., ]), l."(l. 
 
 II ii IS Vict. C. 104, s. 189 
 
 The Ailmiralty Court has no jurisilictimi in a 
 
 suit to leeover seaman's wa^es, unless the siiiii 
 
 claimeil amoimt to ai least tifty iiouiuls stei liii::. 
 
 /)il/' V. '/'/(• Shijt ViUirilij, .lames, ;!!ili. 
 
 II Jk IS Vict. c. 104, s. 101- 
 
 .Any legiil claim of master for his wages wni.M 
 miller this section constitute a maritime lii 11 
 oil the ship. 
 
 O.f/i.V V. S/nai-ii-'if, r, I X. S. 1)., p. ||;i. 
 
 II & 18 Vict. c. 104, s. iftO 
 
 " ll'lf III '•' ;■ (iiii/ -iliiji, ii'hi '/(I /• (I "iKiiii' r or n 
 
 ■■'iii/iini s/iip^ jii'Oi'i iilhlij ill ('III: iliri I'liiiii, iih'li 
 (Hint III r •ilii'/i, irhiilur nnlidimr or iiiiHiiii ''''/'. 
 j.riiri I iliiiil ill fiiintliir ilirirtloii, so Ihiil if I'^ili 
 .sliljis in ri >o roiitiiiiii /III if n ■i/iir/ii'i roiirsi ^ iln 1/ 
 iroiilil /I'l-"' 10 iii'irfi-i lo iiiriilri /lii rixk Ol'iiiii/ 'd'- 
 
 lisiiill, llli ht llil.< iifhiilll n .«■>. /x v/iri// '11 jflll td iiln-l 
 
 \o d'i lit /id.-^i III! /Ill jior/ litli dl' iiirli dflii r, mill 
 /liis riili ^lidll III olii j/iil III/ nil .itrdiiislii/,.i dial hij 
 dU ■idiliiiij ■■<lii/i-:, irlii Uii r on fill jorf nr .</((, '.ivi,./ 
 
 fllrh, dilil irhi III! r rliiii lldlll'il orliof, )(;)/'>> '/|. 
 rirriiiil-ifiliiri .1 of III' rd'<i d ri xiirli d" fo r' ml' r n 
 ill jid riiiri j'rrnii flii riili inn ■■"'dri/ in oril' r '0 
 iiroiil iiiiiiii ilidfi ildiniir, 'iinl xiihjirf dlio in '/ii 
 jirori.10 llidl iliii ri ijiiril -hull III li'iillollii iliiinir^ 
 of' lldrii/dlioii, dllil f(< ;■';/((/•'/■< ,<diliiiil s/ii/im oh 'hi' 
 siirrliodril iitrl' ■•/o.<. hniilnl, in ilii bijilin/ -"•■// 
 •i/(///< iiiiili r inmnmiul." 
 
 To a charge of violating this sertimi thij 
 answer was niiiile that it Wiis not only pi'iipei 'n 
 starlioanl the helm muler the circmustain'cs, Imt 
 the only emirse. 
 
 III III, that the o//"-- jirnhiiinli was on tlu' 
 vessel making the cliarge. 
 
 Tin Conlili'i ami Tin Os/in;/, 1 CM.,:?.'. 
 
 II A 18 Vict. C. 104, s. 201- 
 
 '• '/'lint iri rif xtiiiiiisliiii. ii'lirii iiiiriijiiliioi 'i 
 linri-iii- rliiiiiiitl, .ilinll. ii-hcinrii' it is so/i ninl 
 jtrortiriilili'. kfi i> til Hint siilp nf till- fiiii'-ii'n;! 
 nr iriinl-rlliunnl vhirh lii-s iiii till' stin'^mii'd 
 siilc nf snrll xtiniiisliip." 
 
 Xot neci.'ssary to imperil steamer hy kee|jiiii,' 
 to starlioanl. 
 
 Till' i'lirihlin niiil Oxjiroij. 1 OM., ji. 7711. 
 
 II and 18 Viet. c. l-'5, ss. 85 and 80 
 (Common Law Procedure Act)— 
 
 These sections have, lieen partly re-enacli.il 
 here. The jiroviso in sec. 8(i was purposi-ly 
 oinitteil, anil the whole character of the two 
 legislations is essentially ilitfereiit. By the Act 
 of lS.'i4 the Courts in Knglaiul hail power to 
 strike out any eipiitalile pleatliiig where il cmilil 
 
1 ••!')() STATUTES, IMPEIUAL. 1:370 
 
 lint !„■ -Lull «iiii i,y a c.iiit „i i;.u. wii.Tius |o 1 'iO Vlct. f. »», s. 3 (Mt'rt'aimii' Law 
 
 ciiii Aol c.f |,S,V>, c. •_'.■), iilpulisliiim lliu CliaiiLoiy Amendment Act of 18561 - 
 
 C'lllll luft tllL' liilltil'S l|(i nlliel' liUl tills ('uilll ill .. \- • ; . ; i i 
 
 I ....V witi 111 •• .\ii !<pniiil /iitiiiii.^c fo he iiiililr 1)1/ mil/ /ursiiii 
 
 « liidi jii.tic. cniM 1„. .l.me. In I S,-,;t ..,„ L..gi,s. ,„y,,, ^/,,, ^,„^, ■ ,,^ „,. ,;^ -^ ^j,,, ,,^ ,^^, ,„M,or»/,A. /o,- 
 
 lit lire |.ass.,.l l(i Vi,n. c. 7, ii.itl...,i/i,ig t.,|uital.le ,/,^ ,/,,4,^ ,/,,,;„,/^ „, /„Mrwrt,/y,- o/' miollnr /icr- 
 
 ilir.iices II. ..jectiiuMU. In Ki.gl; •,.!, fop tlu' vofy ,„,,^ ,,„ • „^ „, ,,., •,,,,,^ ,„,,/ ,,;^„;„/ ',, ,/,,, ^„„.,,^ ,,^ 
 
 ticliniLiil ri'iioiin that tlici't' iiri' no |)k'iulin''.s, it i , i ... .„i ii . ,.ii ... .; _ ; 
 
 ' - ' lie c/iiiii/eil tlierciritli, ur su/iir o/irr /iriatni hi/ 
 
 li.is liufii liclcl that Mil ciinitaliU' ilt'tViicu cuiiiol i ,i i i ,■ n ii • i i n i i i 
 
 I .> .1,111 L, Mill Iniii tlii'iviiiito unriuUji tiHlhonze(t,!<li(ill Iw iltiiiiril 
 
 ' _"^ "^ ' . iiiiiil/d /u Kii/i/iiirt nil ii(/iuii,siiil ur ut/irr piodti/ 
 
 Itiiiil: dl' Stifii Sniilii V. /■'I'riii'iii '' «'.. ■ , I ii II I 
 
 ' iiiij to v/iiii\i/i' t/ii' /icrnuil III/ ir/iuiii siic/i /ironilst 
 
 ■' ■ ■ ' ■chilli liiii-r hcfii iiiii(le,bij re isoii vii/i/ t/iiil t/ii- loii- 
 
 liihrntiuii for kiic/i /irutiiine dues tiot a/i/witr in 
 
 & IW >ICl. f. il, S. »1 — irriliiii/,ur III/ necesufiri/ iiil'creiice fruiii <i written 
 
 I'l r S\y Win, \'oiiiig, ('. i), — This section 1,'ivo.s instniiiiriil." 
 
 jiuisiliftion toany Coiiit ofJnsiicuiii iliiMajfs- li, ;inl H. S., v. lis, s. .'{, wliicli sfLlion t..i 
 
 ty > (loiniiiioiis ovfi any liiitisli ^<lll)juL•t charged pespond.s with .'nli It. S., v. Ill, s. :>, thu ollirt ot 
 
 with any ciiiiif or (itioiLJi.' on hoard any l!riti<li |<| jt •_>() Viot. c. HT, s. .'{, was .sonu'hl to \)v in 
 
 .•"liip on thf high sfus, Of in any foirign iioit or ,oipoiatoil l>y adding lliu following proviso to 
 
 ''"'""'• s. :< : " I'liniiied nhnii/n tliut it slndl not be neces- 
 
 ."i'l \- ;{l \'ii,l. c. •_'». s. 1, shows the disposi- .^,„i/ iJm/ nuc/i tii/revnient, nieniornndnni or note 
 
 tmii of thf IiiiiR'iial I'ailiaiuciil to cxtfiid still s/i,dl s/ieci/i/ the euimderntion n/ion ir/ile/i if. ini.i 
 
 fmlht'i' the jurisdiction of such Coiu'ts, and i/ictn." 
 
 thnutoi-L' I am of opinion that the power of this 'I'lii^ proviso was (.mitled in the fourth series 
 
 (niirt to give judgnienl on the defendant's i - ;,,|,l l^s lieeii omitted in .'nh K. S., e. HI, s. .">, 
 
 vi.'tioii for a niisdeineanor eaiuiot Ke siieeessfully ;,,id section (i of that chapter is almost identical 
 
 »^^''i'i^^''' with I!) 1.V L'd Vict, c, U7. s. ;{. 
 
 I'or facts of ease, V" CKIMIXAL LAW, i>. I'lie consideration for m.iUing or giving the 
 
 Onnii V. Mar'rii li \. ,s. 1). p_>4. special pidiiii.se or agreement iiiiist lie set forth 
 
 in the ])leailing aiiil ploved at the trial, notwith- 
 
 1^ A i[\ vid. c. ;{«-(f. r>(ii R. s., c. «'2 - -'^^i"i'"y "'^' '^t^'O't^'. 
 
 (Iiir Act ot ISIrJ, repealing that of IS(il and ' 
 li'iiiiing chapter I 111 of .'{id 1!. .*>., is taken from 
 
 In \ 111 \'icl. c. .•{(!. h is simpler, however, IS A' 1« VICt. C. U»- 
 
 laid omits .some of the provisions on which scv- I'laintitr lnoiighl action to recover ilaniages 
 
 c:- d cpicstioiis have arisen in Mngland. The tirst for injuries caused to her luggage on defendant's 
 
 section of the Hnglish Act, giving twenty-one slcamshii), in eonsc(iiienee of the lireaking of a 
 
 days for the registry of the hill of .sale (which dummy or sidediyht, which, although not con- 
 eur Act does not give), makes the unregistered , structed acconling to the latest patents, was 
 
 I'ill of sale " null and void, to all intents and , such as liacl lieeii in use for vessels of that class, 
 
 imiposcs, as far as regards the pid|perty in or The ticket for the ])assage was issued iimler the 
 
 right to the possession of any jicrsonal chattel Imperial Act, 1"< iV: l!l\'ict. c. IIJI. which re- 
 
 CHiiiprjsed in such Kill of sale," while our Act i|uiied e 'iidilioiis forming part of the contiact 
 
 iiieiely postpones the operation till the tiling, to a])])ear on the face. On the face of plaiiitili's 
 
 (lur second suction, again, is framed as if \\c ticket was a direction to " .see hack of ticket," 
 
 liiid adojited the expressions " null and void " ill and on the hack was printed a condition that 
 
 .In lirst, and our ninth section gives the mean- defendant was not to lie responsilile for loss 
 
 iiiL' of the words "ap])areiil possession," .so well resulting from shipwiei'k or disaster of the seu. 
 
 known in hankriiptcy law, and used in the tirst The carpenter swore that he had examined the 
 
 .■section of the English Act, hut omitted in ours, dunnny every day liefore the day w hen the 
 
 It is to lie noted, also, that the lirst section of injury was discoveied, and had seen it at ten 
 
 lliu Act of I.Stil and of the Hnglish Act siieaksof o'clock on the iiiorniiig of that day. The only 
 
 mi assignment for the lieiietit of the creditors; evidence of negligence on his })art consisted of 
 
 I'lit our Act of 18G'2, in the tirst section, inserts unsworn statements of the captain and other 
 
 till- words "general lienetit." 'J'he same dis- officers, as testified to by one of the witnesses, 
 
 tinctioii is formed in the clauses of exception— that the ilamage had heen caused I ly the ncgli- 
 
 M'ltiiinOof our Act and section 7 of the Kng- genee of the otiicer whose duty it was to visit 
 
 lisli. See ASSIO'MEXT, I., ><• and in.spect the htggage room. 
 
 lilinl: v. .S'«i'7/( ;', '2 Old., 1. Hi Id. that the jilaintitr was lioiind liy the con- 
 
i:57l 
 
 STATUTES, IMPERIAL 
 
 l:}7: 
 
 ilitimii, and tliat tliu vonlitt fni' pliiiiititr, bascil cliiim or iltiMiiinl innvulilo iiiiclcr liiuikriipt h 
 ii]iiiii ilic iiiiiK'i ttit cciiistruc'tidii (it iliu (luiimiy luiiikriipti'v) - 
 
 iiud tlie iu')L,'lij5'Liue of tlie (k'tViicliiiil'H si'iviiiit, //(/(/, llmt the mdw tui' iliscliaigi; was -utti. 
 must liu sft iL>i(li'. cit'iit evitleiKuipf tliu iMiiikniptcy, iiml that \iliiie 
 
 cli'fciiilaiil .-liowcil tliat the dflit tcir wliiili lit- 
 
 '20 ic 21 Victi C. S5 — ^^i^** ani'sti'il iiluliT laiiias in Nova Suotia w.is ii 
 
 Sfo. •_'! ipf this Ait coiTL'siHmds with «rs. 1, «li'l)t " jnovahlu umler liiu l.ankniptoy," ii.' u,.s 
 
 •_'. ;t, 4 and ."> of 4th 1!. S., c. Mi. Sees. S and II fiititli,'.! to lie discliaiKiMl from arrt'.st, 
 
 ni .mr Act are identiod with .■. IDS of -.M .t •-'•_' -^l'"" "■■- ■'>"i"l'< - t»l'l-. -'i--^- 
 
 Vitt. Sec. Ktof our Ait is same as !l of -1 vN: 
 
 •.-.' Vict. e. IMS, and see. 1 1 of our Act with see. ', 24 & 25 VICt. C. 134, S. 203 - 
 Id of last named Knj^Usii Act. (Proof of petitions and other proeeeilinys in 
 
 Siiirlnlr V. ll'aL\H\lil. 1/ a/., 1 1 1 . .>C < i . , 4(i."). liankrnptey) — 
 
 Same evidence snlhcient in Xova Scotia as it 
 
 .V' 
 
 5th R. S., (N. S.), c. 8tf. 
 
 Westminster. Jf not under s. '.'(J.'tof above Act, 
 then under ;^rd K. S., e. l.T>, s. I'S. (Same ,is 
 5 R. .S., e. KIT, s. ;5.) 
 
 ^Jua^:r^, wiiether the words " «/i Coiu's n-lint- 
 nrr," which oec\ir in tliis section, are conipru- 
 liensive enough to inchule the courts of the 
 Nova Scotia. 
 
 MilU V. Smilli, -2 Old., .T.N. 
 
 24 VId. c. 10-(Extcn(Iliis Jurisdiction of 
 
 Admiralty Court) — 
 
 'I'wo out of three proniovents sliipped at l!er- 
 nnida on Imard tiie sliip lilielled, a lilockade 
 runner, for tlie round voyage from I.ernuida to ^^^^^^^^ .^^ , 
 Wihnington, N. C, and tjience to Halifax, j "^ 
 N. S. The remaining pvomovent shipped at 
 
 Wihningt.m in ro.m. of one of the others. No ' ,^. ^ .^^ ^.^^^ ^^ ^^ .^ _ 
 ship's articles were signeil, but tliere was evi- , . , 
 
 ,lence to prove that the n.aster had contracted ■ It is declared that the expression ' bemlK.:.! 
 to my to each of the pr.m.ovents ,,,tain : interest,- whenever used .n I'art II. ot \,X 
 specified smus, in three e,,ual i„.ta!n,ents. I« Vict. c. 104, includes interests arising mM.r 
 The contract was absolute as to two of the , contract and other e-iuitable interests, 
 instalments, ami as to the third, there was a| .SYc SHIPPINti, 71. 
 
 condition that it was to be paid only if the 
 claimants' conduct were satisfactory. i -'5 k M VIct. C. 8»-(EngIlsll Jolllt StOCk 
 
 //'A/, (1.) Tiiat this was not an ordinary en- i Companies Act of 1862)— 
 ,Mgemenl for .seamen's wages, but a special con- , The Dom. Act, 'M Vict. o. 49, authorizes tl,u 
 f' Secretary of State for Canada to grant a hccii-e 
 
 '(•2.) That previous tot he A.lmiralty Court Act l" a company duly incorporated un.ier the laws 
 of l"s(il -'4 Vict. c. 10, tiie High Court of Ad- -f <:iL':a I'.ritain and Ireland for the puriK.se .,t 
 niiralty'had no jurisdiction over such cmtracts. lending, to transact business in the Dominmn. 
 (.•{.) Tiiat this Act did not extend to tiie Vice- Foreclosure of a mortgage sought by a coiiiiMiiy 
 A.lmiralty Courts, nor were the provisions re- registere.l under lV. it -M Vict. c. S<t. and chiiiii- 
 pecting special contracts, embraced in its tentii ing to <lo business here under HI Vict. c. 4!Hl).) 
 section, extended to those Courts by the Act of | Stc MOKTO.iliE, ''7. 
 
 ISU.S, •.'(■) Vict. c. '24, sec. 10. ! 
 
 Tfit Cif>i of r,.iu:sl.H,y, 1 Old., 814 ; . 25 & 20 VIct. C. 89, s. 35 — 
 
 V. A. D., 1. l>n)vided Uuil " 1/ lilt itaiiK o/ (1)11/ j>< /-"Oil i<, 
 
 irillioiit ■iiilil'-ii iif rail"!-, I nil nd ill or oniiU'd 
 
 A collision occurred inside Halifax Harbor, f^.^^^^ /f^, r<iii<if.r of iinni/n i-< <>/ (iiiij '-oinimij 
 
 and therefore within the body of the County „„,/,,.//,;.< Art, or if ilifaiill is iiuuli- or uiiiwi^"- 
 
 of Halifax. The defendant put in an absolute ^„,.y ,/,7„y ,^^|.,,.^ j,i,„., /,, , ,il< riiKj on Ih: (■';/('*-■ 
 
 appearance witiiout protest or declinatory plea, //^,. yj„.^ ^y „„y j,trson hariii;/ cmieil- to In a 
 
 but the ipiestion as to the jurisdiction of the „„„,/„^ g/ Hit romiiaiii/, the. person or mnnhf 
 
 Court was raised by iiim at the hearing. «;/;/>•/< rtil, or uuy m<ml>tr of the. romiiaiiy, ortk 
 
 Hi III, that under the Statutes, '-M Vict. cap. ,.o,„^,f(„y ilstif, umij . . . hy motion in uii'J 
 
 10, and '20 N'ict. cap. "24, the Court hail full ,,^- //,,. ^^fajisty's Sii/iirior Courts of Lau- w 
 
 jurisdiction in tiie matter. J-Jfjiiity, or hy ajiiiliralion to a ./(«/;/< ■litliinj ni 
 
 Tilt W'anlil, \'. A. l).,M. Chumlurs . . . n/ij/fy for an. onln- of iht 
 
 Court that the rnjistir iimy he nttilinl.'' 
 24 k 25 VIct. C. 134, S. 101— Per McDonald, C. J.— This summary process 
 
 (Order of discharge relieves from a debt, i is not available here in respect to banks coiisli- 
 
i:!7:{ 
 
 STATl'TES, NOVA SCOTIA. 
 
 1374 
 
 tutnl iiihUt till' proviMidiis (if iliu IJiiiikiiig Ait 
 I'i |s7I, anil tlu' I'liuuily kd roinlily proviili'il 
 iiiiilcr tilt- Kii).'lisli ludct'diin- is lUtaiimlile lii'if 
 diily liy liill ill fc|uity, or, |(erliii|i.-', in nnini' imm's 
 liy writ (pf iiiiiii(laiiitis. 
 
 //'(;(/,• of Xor'i Srolin V. Siilil/l, 4 K. .'« (J., I -Hi. 
 
 Tlio (k'cisidii in lliis ciise was ri'ViMscd im 
 ii|i|)i',il ti) tlif .'>ti|)ivin(j Coiiit (pfCanaila, Ijiit imt 
 ,is tip tliu aliiivu expiussiiPli. 
 
 S ."<. ('. I;., .VpS. 
 
 •W A: M Vict. f. n, s. IH\~ 
 
 Is viry similar tii llif |nip\ isimis In mir Iiimil- 
 Vint .Act of JsT.'i rilatiiii,' to ilisciiaigf Ipy foiii- 
 pipsition. Derisions u|iip|i .si'ction I'Jii of the 
 Kngli.sh Art ifvii'Wuil. 
 
 .l//i/< /Mj// ./ t(l, V. Siitl,, rlidiil 1 1 1(1., 
 
 ;{ ii. kv,., p. .S(i4. 
 
 :.'(} Vkt. f. i\, s. 10 
 
 V' BANKS, 12. 
 
 > '.M VId. e. 10. 
 
 (0 JL :{1 Vkt. c. :t Krltlsli \ortli Aimrka 
 
 Act) - 
 
 > BIJlTlSil XORTII AMEKRA ACT. 
 
 m A; :n Vkt. c. '24, s. 4 
 
 > IS A; 1» Vkt. 0. it, s. »1. 
 
 to JL 31 Vkt. «'. n, s. I- 
 
 HiiaLts that no (.ontract of marine insnianoe 
 :< to liavi; valiility if not uxpi-L'S.suil in a poliiy, 
 uliicii must also Iiu stampcil. 
 
 /'• '• Ititfliie, K. J. — \Vf have no such .Staliile, 
 and I know no reason why here, as in the United 
 Stiitfs, all at'tion eould not lie lnougiit on a dncu- 
 iiiiiit initialled as this was liy the directors, 
 uliiih ill Knghind is tailed ii slip or label, if no 
 |iohcy liad Ipeen contemplated, or the insurers 
 iiuil refused to execute one. 
 
 Wyhl' i7 ((/. V. Union Marine. Iif. Co., 
 
 W. K. 1)., •JM.S. 
 
 W A; :{1 Vkt. c. 48- 
 
 >ittled tile coiiliii.t hetween tile practice of 
 Ci'iuts of K(|uity and of Law on tlie subject of 
 UKti'ineers iiistnuted not to sell under a certain 
 liriue selling uiiiler that price. 
 
 Mdxon V. Chniiihirluin, 1 Thoni., 
 
 (1st Ed. .t •Jiid Kd.), 1. 
 
 :n Vkt. c. 9, s. 10 - 
 
 Kiiiuts "that (III iiiMniim lit not 'lull/ •^t((iniiiil 
 •h'l/l not In: ///((((li.il or i/iri n in i cidi iiri , or a<l- 
 mt'iil tij }„ i/ooil, icij'iil or ((railahli. in Ian- or 
 /iii'.V.' Our Act says tiiat such a ili)cument 
 " •hn'l III: inraliil, and of no 'Jict in lair or 
 ■I"''!/." 
 
 I'' r .laines, J., delivering judgment of tlie 
 '"lut— Tile English Act and ours are strictly 
 I'tri mall ria, and I think it would be undue 
 reLixatioii of the language of our Act to recog- 
 nize any difference between tliem. 
 
 McFalrid'it v. Ilnntu; .'i R. & C, 'JS9. 
 
 STATUES, NOVA SIOTIA. 
 
 'I'lii- tirst Scssinn i.f (icmial .Vssembly lirld 
 in the Province met on the second day of Octo- 
 ber, A. I>. 17.")S. 
 
 In ;> Cart. .V_'l, .t s, ,/., will lie found ,i letter 
 dated Deo. •_>(», ISS'.', from Ijeuteiiant-( ioveiiior 
 .Aichibiild to the .'<ecretMry of .Stute for Canada, 
 on tlie sulpject of the ('oiistitution of N'ova 
 I Scotia. In it occurs tlie foljowiiig pa.ssage : 
 "So far as I am able to ascertain the facts, no 
 formal Charter or Constitution ever was con- 
 feriid. either on the I'rovime of Xovii .Scotia, 
 or upon Cape iJivton, while that Island was a 
 separate I'lovince. The Constitution of Nova 
 Scotia has always been considered as dciived 
 from the terms of tiie lloyal Coinmissions to the 
 <;overiiiprs and Lieutenant-( Jovernors, and from 
 the instructions which accompanied the same, 
 moulded from time to time by despatches from 
 Secretaries of State, conveying the will of the 
 .Sovereign, and liy Acts of tl.e Local Legisla- 
 ture, assented to by the Crown; the whole to 
 some e.xtent interpreted by uniform usage and 
 cust.)ni in the Colony." 
 
 N'ova .Scotia was ceded Ipy Kraiiee to the 
 Crown of England by the Treaty of L'trccht, in 
 I7I.S. 
 
 The preamble to an Act jjassed by the Legis- 
 latiue of Nova .Scotia, in 17">it (."« Ceo. •_>, c. 'A), 
 declares tiiat "this I'lovincc of Nova .Scotia, or 
 Acadie, and the pro[)erty thereof, did always 
 of light lieloiig to the Crown of England, both 
 by priority of discovery and ancient possession." 
 The Island of Cape Iheton was, with Canada 
 and other Kleiich Colniiies in America, ceded 
 by Fiance to England in I7(l.'t. 
 
 On October 7tli, 17<i.'^, Cape Ibeton was by 
 I{i>yal I'roclamation annexed to the (iovernnient 
 of Nipva .Scotia. 
 
 In 17()(), the (iovernnient of Nova .Scotia 
 passed an Act declaring tliat the laws of Nova 
 extended to the Island of Cape IJreton. (Statute 
 printed at large in the Ajipendix to .Journals of 
 Nova Scotia As.seinbly for IS4I, p. l.'iO.) 
 
 In 17S4, Nova Scotia was divided into two 
 govei'iiments. New Hrunswick and Nova Scotia, 
 and Cape Breton was inehuleil in Nova Scotia ; 
 but the Lieutenant-«iovernor was appointed for 
 
IMT', STATl'TES, NOVA SCOTIA. 1:{7(1 
 
 iiiiit i>i;ui.i, «iiM.s,r..iniiii»-i"iigiivi'liimtlii'xuiiii' 3rd Keilst'd Sfntiitrs 
 
 |i(i«iT.s ii.-* txplcsXMl ill tl\t' crillllllisNioli of till' I Prm'llilliK'cl Miilili •JTlli, I'^li"). |>UI^\lalil l.'.'l 
 
 Lifiitfiiiuittiovrriinr "of tlii' I'mvincf of Novii ' Viut. (iHtil), i'. S. 
 
 Scotiii, anil till! IsIuikIm of St. .loliii iiml Ciilif 
 
 lilul..i.,tlii'iiiiii.l for till' tlliii'lieilig." Tlii'ioiii- 4«ll Kl'VlstMl StatllU'S- 
 
 niis«i.morli!ttiTsputL'iit oftliu(iovuinoiofN,,vi. I'rocliiinuMi Mi.y Txli. ls7», piii.-iiiint K. ;;ii 
 
 Suotiii spoke of "our reMiici'tivi' coiiiicils iiml N ii't- (I^T.'i), c 1. 
 
 assuiiililii'M of our I'liiviurr of Nova Scot ia ami 
 
 om Mail. is of St. .loiiu anil Cap.' I'.ri'l uuilcr 5||| KCVlsOd StlltlllJ'S - 
 
 your j,'ovtiiiiiiiiit ;" iiiiil, witlioiit cxiuvssly I'roLlaiiiit'cl April •J.'tnl, |ss,'), ))iir.Mi,iiit I > 17 
 
 uutliori/iiij,' liiiii, iiu])li(il that lii' liail tin- power Viet. (I.SS4), >■. 'Jli. 
 
 to oall nil AsKi'iulily of ( 'ape liri'ton. A Couinil , 
 
 was foniiuil, Imt no ( liiiiial Asscinlily was i-vor .j^j ^.^j^^ ^^ e. -i S. I — 
 
 coiiveiii-il forCapu llietoii. In IS'JO a new uom- ; ^ ^^^ ^^^,^ ,.^^|, ^.,„|,i|.,„j„g liii^.^ i,> IiimI aii.l 
 
 mission was ^i\ I'll to tliftJovrnior of Nova Scotia, ,j„i^,,i„j^, ,„,ssfSsion) - 
 
 auJ that (iovi'iniiH'lit was ik'scrilH'd "as inclu.l- /•, ,. ,|aiiiu.s, J.— 1 think this Slaliitu aiiiouiil> 
 
 in- till- Islaiiil of Cape I'.r.toii (\vlii.ii we do ^^^ .^^^ .^l,s,,|ute ruiiunciatioii of llic doitriliu of 
 
 I'xpri'ssly aiivot ami (kilaiT shall in future form ^,,,„^.^.y.^„^,,, i,y Hyery of seisin, without wliidi 
 
 pari of said Province of Nova Scotia)," and no ^^ torfeitiire liUinot lie sustained. 
 
 mention was nmde of a Couneil or As.semlily, or /;, ^.,.,^ ^ /;, ,.,.,^_ j ); ^i^ (, _ ^^,^■ 
 
 any .separate Lofc'islature for Cajio IJreton. The 
 
 (lovernor of Nova Scotia, in accordance with his .^.^ ^.^^^ .^^ ^ ^^^ ^^ ^^ ^^f .„, ^^ ^^^ ^. ,,.(^ 
 
 instiuelions, issued a proclamation declaiinji ^ ^__ 
 
 Cape liret.m to l,e ii County of the Province of " y^^^.^^^^^ „ „,„, ,,;,,^,, ni,,/ r.rlaii, I'uw,, :•,„>■ 
 
 Nova Scotia, to l,e rep.esontod l.y two memhers ^^^^^^^ ^^^ Uqiunlhn/ ai„l ;/mv« h,, «,////»,■ ;. 
 
 in the Ceiieral A.sseiul.ly of Nova Scotia, and ^^.^ ^„. h, ,. Inst ,nll rtii'l h .<>(,ninif, n^ a'... ,-•/,.,. 
 
 dissolving' the Council of the Ishiiid. ^^^^^^ ,><iilmirii („■ ,„i,;rtahi h<i<inj h, ,„■ >//"//, /.// 
 
 Ill the letter al.ove referred to (.S Cart. p. .V.'S) ^^^ ' ,,,,,,^^,,^,, ,;,• „,„^ ,.f,,.„/o,., /„ ,;,lwul t., „ ,-.,■■ 
 
 ill dealing with the ciue.stion of the legality of ^ ,;„,,^_ ,,,,,.,/,,„./, },,,,t,.,,„,„/ /,,„(,./> s «.so.rt.P -«;-/, 
 
 the re-annexation in IS-_'() of Cape UreKm to ^,,,„^' /„ ,„;,/ for fu,<i r<<vr, ml „l lh< V<mm<,i, 
 
 Nova Scotia by the Crown, without the consent ^ ^;^^. ^^^^^^ /^^^;^ ,,,^^,^,^^^^ ,,^, ,,,.,„^, ^ ^,, „^, ronhvni. 
 
 of the inhaliitants of Ca,,e I'.reton, and without ,,,,,„.;,/,,;,„„/;„,/.'• 
 
 an .Vet of the Imperial I'arlialiieiit , reference is ^^^^^^^ ^,^.^^ ^^^^ .^^.^j^^^^ ,._^j. ,^ ^.^.^.^.^j,, ,^.„„^.,^. ^,.,„ 
 
 ma.le to a petition from certain inhal.ilants of ,,j^^ ,„,^i„i,^i„^,,i i„ the Common Law Courts a-aiiW 
 
 <^,pe Hretou which was in ISW lodged lii H't^ .^„y ,,^^^j..,„„ „.i,„, u„,lor a will, is made liahle m 
 
 otticeof the Privy Council in London, eoniphun- ^^^^^ ^^^^,^ j^,^,^^^,y_ .^,^,, ,,,^.^,i,.,,, ,„„i,,, ,„,i, „ill 
 
 ing of the annexation, etc., ami the .statement is , ,,^^-^,^ Milliciei.t'to pay it. 
 
 made that " it does not appear that any further j^^^^^ ^j^,^^ .^ ,^„_^^.^^,y ,,f .^ ,\^.^^.^^x^ suitahle iumI 
 
 steps, l.eyond the lodging of the petition, ^^ W'u , ^^J^^j^^^.'^.^j^,^. maiiiU-naiice is in its nature sulH- 
 
 taken in the matter." eieiitly certain to siLstain ivii action. 
 
 The case /.'. '/'If I^lnml <;/' 0(/" /!r>/oii, .") ' j,-//^ ^. jr/i,,^ \ ■[•\um\., C-'ud Kd.), l^'i 
 Moore, P. C, •-'.')!> (.S'", «"'-, NOV.l St'OTLV) 
 
 has apparently heenoverh.oked. .,.n'on '»(17-.»*' <• 11 s l'» - 
 
 In IS-'O an Act (I .t •-' ( leo. f. e. .".) was pa.s.sed '^^ ^*^^- ' ' 17.>S , \'_]^'^' »" 
 
 , , , ^ , - . ^ .■ ... . ) /'. /•d.>linstoiie. In l,..,s, I'rov. Laws. v.ii. 
 
 1)V the Le.'islalure ot Nova Scotia " to extt'liil . i, , . .,;,„lt, 
 
 "•> ,"^ " "' . ,,. 1(1, the .Judge ot Prohate was ilm pill cl tn 
 
 the laws and ordiuanees of the Province ot Nova ' ,•■..■ . n ,..i,i„„. „r .,..vt .iI 
 
 , ,,,./. I. •■ uraiit adnuiiistration to the \\l(low oi iii.xt "' 
 
 Scotia to the Island ot ( alie l.retoii. f . ■ i r i.. r.. »i ;..,t;,„, t,, 
 
 ' kin, ami, on their default after the eitatiim, t" 
 
 I such jierson or persons as he should jii'li.''-' •!'• 
 
 1st KeVlsCd statutes— : in l,S4'_' the principal creditors were iiitKuliKvl. 
 
 < 'ame into operation .Scplemlier l.st, 1S.")1, .,,„] ti,^^, i^^v took its present form, hut tin 
 
 being brought into force by a certificate of the j,|,\vcr to grant administration to siuh "''"' 
 
 Commiasiouers, pursuant to 14 Viet. (ISol), person as the Judge should think til: "a.'* ""' 
 
 c. 14. then (lualilied by re.iuiring the appli<ati'iii "la 
 
 creditor. This re.«triction was adiled in tlaHi' 
 
 2nd Revised Statutes- vised statutes (1st series), in KSol, iind the «""' 
 
 Were declared in force August 17, 1S59, by " shall " was changed to " may •' in the aiuli"iiij 
 
 Proelaination of the flovernor, pursuant to 21 to grant administration to the principals fiht 
 
 Vict. (1838), c. ;15. i "IS i" the third series of the Revised stututi' 
 
1 i)ka M 
 
 STATIITKS, NOVA SCOTIA. 
 
 137S 
 
 Tills cliun^'t' Hill) iIiIn ir.st lilt inn mt' Ixitli hI^'- 
 
 lilllriilit, \Vi- ran Ullili'r.slllllil llir iiliji'i't iif IT- 
 
 i|iiji iii^' llii' ii|i|ilii'iitiiin of II I'i'cililiir lii'tuic llu' 
 .liiil;;!' nliiiiilil III' iilliiwi'il tiipiisHliy lilt: pi'iii('i|iiil 
 ri'i'iliiorH, linl lint it' his iidwit whh only to lio 
 ivciriHcil iiftrr fitiliirc nf i'i)iii|M'lcii( mill willing 
 
 ili'ililiiI'M, lliiil till' Li'j^'isliitlll'i' tlillH illlriiilcil 
 liiiiirtiiil II piiwci' gi'iiiitiMl til the >liiilg)' of I'ln- 
 L.ili' lit till' lii'Ht .si'ttlriiii'iit iif the I'liiintry, luiil 
 ivi'irisi'il fur iiiipic tliiiii Ni'vriily yi'His iit'ii|i|iiiiiit 
 iiiriii on t'liiiiii'i' of willow iiiiil iii'xt of kill, wo iirc 
 I'uiiiiil to lii'licvi' tliiil tlioy wniilil liavi'cxpi'rMsi'il 
 ijiiil iiitt^ntiiin when a fc^w wor.ls woiilil Imvi' 
 ■iilliiiil wlii'ii llu'y liiiil iilrciiily ^iiiirilnl llir 
 |iiiiiiily of I III' lii'Nt class of I'laiiniintM liy ri'slrir- 
 livi' liiii^'iiiigi', mill wlii'ii till' fi'iiino-wni'k of tlirir 
 iiiiirliiu'iilH hIiows that tlirir inti'iition was cs 
 pi'iiiilly ili|i!rti'il to \\u\ oilier of |iiioiity, ami 
 ihiit they iiilii|ili'il tlic liicthoil (.'iilciiliiti'il in \\h'. 
 |il:iiiii'Nl mill strictest iiimiiii'r to iiiilicato that 
 
 Ill ;•< /■^/ii/i of Iti-dini, I N, S, 1)., .'I'HI. 
 
 ^ , "/ ', Srd It. 8., r. 121, m. 11 iinil \1. 
 
 M lico. i (ir»S), «'. 1.-. 
 
 (All Act for inakini^ laiuls anil tciuMiU'iits lialilc 
 itlii' payint^nt of ilehls)— 
 
 s STATUES, IMrKltl.Ui, 
 
 \'A K(iu. l,c-. IS. 
 
 Wlit'O. 'J (liiiS), c. 18, s. ir> 
 
 S" 2ml|{. M., r. i:ii,s. l'i». 
 
 :|;m;po. '-» (17->»), C.I 
 
 Fiisi \ova Scotia .liiry Act. In this Act 
 lie was no provision for a jiiiy (h imilii /ii/i 
 liiiijnai , uiir has there lici^i any in siilisciiiii'iit 
 Acts, 
 
 Ililil, ill IStil, that tlie lonj,' course of lei,'isla- 
 ':"ii, I'liupleil with the fact that such a jury lias 
 Tier hcfore lieen elaiineil in our Courts, though 
 !!«■ iilra ami usage in the mother country were 
 imiiliiir to every lawyer, is .strong eviilence of 
 !!«■ iipiiiion helil by ourJuilges ami legislators 
 lilt nil right to such a jury existeil hviv. 
 
 Qiiriti V, Ihirdill It at., 1 (Mil., I'Jti. 
 
 H <Jeo. 2 (i;«0), c. 5, s. 2- 
 
 ■ Thill I'Virij ci'i'vutnr nr inliiiitiislrulur irlio 
 
 '■'il. Ill/ n'rliii' iij' tills Art, lir (iitthiiriviil tnid 
 
 uiimircrril to tiltlki' Xdh- (if iniij mil istntr. 
 
 MU, liifiifc siiiii siih' VKiilf, ijiri' tiniiil hij 
 
 »mi'lf(ir his hiv'fnl iittnrtiiii, ii'ith tirn siin- 
 
 |«". '(( the (ijjirc of thv lliijistcr of Ihv Court of 
 
 IMiiitcn, ill the nniiitii vlit-n' siirh reiii cstnti- I 
 
 I'"''/ /('(•,/()/' till' just mill Ill/Ill ilistrlhulioii of \ 
 
 ''" iiiniiivs iirlsiin/ from siirli s(il)\ in tlw full 
 I '"■ !■•/(((■/(, hij the report of the roinmissiniifrs 
 45 
 
 for Unit /iiiriiiisi iiiijiiiiiiliil. shnll III ri rlifiiil III 
 III- liirissiiril III III- rilisiil III/ sill h siili ," 
 
 I'l r llalliliiirton, ( '. .1. 'I'hal the piireliaMer 
 was hiiiiiiil to .sec that the seciirity liiiil liceii 
 given miller tliis Ad cannot he ilispiiteil. 
 
 Chiiliiiliii v. .\ti- hoiinlil 1 1 III., '1 'I'lioin., ;Mi7. 
 
 1 (Jeo. a (KUI), <>. S IT. .jlh M. S., c. l»l, 
 
 O. XLVI. 
 
 (.\n .\ct to I'liahlc cicilitors to receive their 
 just ilelils, out of th • ellccts of their aliseiit or 
 iiliscoiiiliiig ilelilors) 
 
 111 III, (I) I'ri/e iiiomy in hamls of a prize 
 agent is not "gnoils, etFccts or creilits" within 
 the ineaning of the Act which gives attachineiit 
 against the gooils, ell'ei'ts, or ercilits, of any per- 
 son ahscomling or alisent out of the Province, in 
 the hamls of his atlorncy, factor, agent or trus- 
 tee." 
 
 (■_') A prize agent is not an "attorney, factor, 
 agent or trustee" within the incmiing of the 
 Act. 
 
 (.'1) .S'l »(/i/( , a sailor, coining iiere for a short 
 liiiie, ill Mis .Majesty's ser\ ice, can scarcely he 
 the person inteiiilcil liy the Act, illiiler theiles- 
 cri]itioii of mi iiliiiul or nliiioiiiliinj ilihlnr. 
 
 (I) If such jiri/i! money in the hamls of a prize 
 agent is inteiiileil to he niaile siiliject to attach- 
 ineiit iiniler tin.' Act, tiie Act is repugnant to llu! 
 I'lizo Acts. 
 
 In the jiiilgnient in this case- Dr. Croke, IIk; 
 .liiilge, cites a cas(^ ili^ciileil in the Supreme 
 Court of Nova .Scotia in which it was helil that 
 jiri/e iiioney in the hamls of prize agents coiilil 
 he attauheil umlur this Act. 
 
 Till ISivniwIn, Stewart, 'J.'II. 
 
 To eiialile plaintilT to procceil iimler this 
 Statute against a ilefemlmit as an ahseiit ilelitor 
 the ilefemlant niiist have resiilcil or thi' ilelit 
 have heeii contracted within the I'roviiice. 
 
 Cnrhmii v. Diiiiraii, '1 Tliom., .SO. 
 
 This Act authorizes the gooils of the ahsent 
 ilel)t<)r to he attaeheil, the writ ilirects theSherill' 
 to attach the gooils ami estati? of the ah.sent 
 ilelitor mill the return of that oflicer that he has 
 attaeheil the goods or estate of the ahsent ilohtor 
 can alone lay a foundation for the plaintill' pro- 
 ceeding one step or tiie Court taking jurisilie- 
 tioii; wauling that return, all is mere assump- 
 tion and I'oram non jmlin.. Not siinieicnt for 
 return to state that the .Sheritl' has attached 
 goods "ax" the jiropcrty of the ahsent dehtor. 
 Rntrkjhrd v. Chl/imav, '2 Tlioin., '2',i') ; 
 Miiviion it ul. v. lioyil, "2 Tlioin., 247. 
 
 I'lr TIallihiirlon, V. J.— The defendant's coun- 
 sel contended that the whole ohjcct of t he Act was 
 
I.*i7!) 
 
 STATUTES. NOVA SCOTIA. 
 
 IMSO 
 
 lo I'diiipi'l an ii|HM'uiimci', uiiil lliiil lluii'ti'ic, 
 wlii'ii III! ii|i|HiUiinii' in I'lilrri'tl, llial nlijict i« 
 Kiiiiicil, iiiiil III! llu) i;iiiiH<M|iU'mfH (if llii' ili^ftuil 
 illil's jilcviiiUN .lmfiu:i' lU'f ullliullt'il, Jlllil llu' 
 ciiiiMc i.s 111 |iiii. 1 unci 111' liiiili'il iiH line llial 
 lull) lomnitiiiiil liy a |iiin(>ii,iI HiTviir in tlu' 
 nsual manner. 
 
 'I'll.' liiHl ilaunc iif I r.vih ;i, I'. S, lcmliT« 
 till' j,'iiiiil.s alluiluil lialiif III ifH|Hinil llif juilj.; 
 mint, to lie rucovend iinilcr hiuIi |iriKtxH ; ami 
 till' liflli ilaiiHc rciulfis till- kimiiIm, ctlfits <ii 
 crnlil.H in llir lialiiln of llir a^^ciil iif till! aliwlitcf 
 aJMii lialilc 111 till' jiulnmi'iil, ami makes tlieayi'iit 
 ln'isnnally lialili' if he iIdcm not itiinluci' llii'in. It 
 innMl 111! I'l'ini'mliii'cil that until llic yar IM'J4, 
 till' |irii|ii'ily iif priMiinH |iri!«i'nl, aH well aw nf 
 tliiisc wliii were almeni, eiuilil lie altaeheil liy 
 mesne pioeuHM ; anil HUeli priipLTty nf liel'minH 
 pieseiit Wi.M lielil ti> I'l'Mpnml the jmlKmelil, ami 
 the plaint itl'miKht leenver, allhiiu^ih theilefeml- 
 ant enteieil an appeaiaiiee ami eiinle«ti'il the unit. 
 When the Li').;i«latine Jiasseil the Ael.in IH'JI, 
 ruNtiaininm' the iMHiie of altachmenlw, they ex 
 I'l'pti'd the easi'.s of alwenl niahHuiimlin)^ ilehtiiiM, 
 
 which theiefiiie I'emain tn lie ileeiileil ii| as 
 
 they wimhl havo lieun hail that le.stiaininj,' Ael 
 nut passeil. Uniler inir praetiee, priof tii the 
 pa-sxing cif the 4 ami ."> tie". >, lH-4, neither 
 the filing of the upeeial liail mir the remlei' nf 
 the ilefemlant wmilil have ilepiiveil the plain- 
 till' nf the security he hail gained to respoml 
 the juilgnient umler the writ nf attachment. 
 The poHSesHion nf the gonils altaeheil cnillil only 
 Ik! regained l>y giving security In the .Sheritt" to 
 jiay the amount nf the appraised value in ease 
 the plaintilT shnuhl recover iudgnu'iil. As the 
 Act restraining Mu) iasueof atlaehniei>ts does not 
 extend to the eases of ahsenl or .iliscouding 
 delitors, there can he no doulil that the goods 
 taken luider the attaehineiit must likewise lie 
 retained to respond the plaintill's judgment, 
 should he reenver in this action. 
 
 fi/iirr 1 1 aJ. v. Mitmiif, '2 Thorn., "244. 
 
 1 flco. » (HOI), C. S, H. 1 
 
 " That it fhall and may In luirfiU for any 
 /iirsnn in/illitl lo any action for any ddilx, diieit 
 or Uimanils n-huhoirir, aijainsl any inrsou nli- 
 trondinii or ahscnt out of this Prorinrt. to causi 
 thf ijoodt awl estate of »uch ahscondimj or ahseni 
 /lerson to III. altaeheil, in irhose liunils or iiossis. 
 sion sotnr the. same are, or may In found : and 
 the uttaehinij of any purl thereof ^halt secure and 
 make the whole, that is in such person's hands, 
 liable in the law to re.tpond the jiuli/ment to he re- 
 rorered upon such procc.ts, if so much there he, 
 and no further, and shall he suhjtcted to he taken 
 in execution for salisfadion thereof, or so far as 
 the value thereof will extend, and the jmrson in 
 
 ichim hitnili ihiy an ^hall ixposi ihnii iiniinl 
 iiiijly." 
 
 When the atlidavit under which the \miI w^h 
 iiisued wuM parlly for delit and partly fm .ti l.uin 
 for negligence as a liiiilee, and the \\t\\ \\.\.^ m 
 diirsed for the whole smu sworn lo in the ;iili>|;i 
 \il, 
 
 llihl, thai the process ciiidil mil he suMl.iiiiicl. 
 
 Muri^on V. Murisnn, I 'I'lioni., (Isl Kd.), Ill-j; 
 (•Jiiil Kd.), i:»l ;l'Th ..•.'.VJ. 
 
 1 Uco. iKHOI), c. 14 - 
 
 sv, % Geo. 4 (1S'2«), c. '.». 
 
 :» ii I ««'o. ;j (ii«;»), <•. 5 -cr. .uii it. s. 
 
 c. IIH 
 
 (An .Alt for relief of Insidvenl Dehluis) - 
 /'•/' Johnstone, K. .1. It was argued lliil 
 under this chapter the assignee of an insolviiit 
 delilnr Innk a perfect title in the pnipirl) 
 a.ssigneil, and cnuhl liy the terms of llie Ail 
 sue in his own name in like manner as llu 
 assignee nf a liankrupt. There is, however, ii 
 marked distinction, fur hy the seveulh Miitiuii 
 the creditor may, nntwithslandiug the as.si^M 
 nient, take the del>ti»r'» laniU and goods in cxi' 
 cutioii, and, I think, the assignee must lie lii'lil 
 Intake the properly suhject to a li ust fur tlii' 
 dehtiir, should it reali/.e nuire than eiimiuli tu 
 satisfy the delil, and the assigmueiit iuii>l Ik' 
 regarded as in legal etrecl a nmrtgage cri'iililif! 
 but a specitic lien upon the prnperly. 
 Sii,also, INSOIiVKNCY, 1(». 
 
 Cull ins V. A', id et at., -'01,1., •.'.VJ. 
 
 5 (jco. 3 (n«5), c. '2, s. ;» 
 
 Private rnads to he laid out hy the siiiveyin* 
 of highways — 
 
 " I'roriiliil that no damaiji he doni Iniunj i«f 
 ticnlar person in his land or properly, icilhmi (/«• 
 ricompence to he made hy the town, us llu ^mrnj 
 ors of hiijhicays and the parly inh n -lul mh 
 aiirie,oras shall he ordend hy the .liisiin^,i» 
 tleneral Sessions, upon inquiry into llu miiv '■//" 
 jury to he summoned for that purpofi ." 
 
 .SV. 4 WM. 4, c. «», s. 1. 
 
 ««co.:J(n<MI), c. 8 - 
 
 I'er lili.ss,.l.-Firt*t Act which gives tlu' f""" | 
 nf the writ of attachment. It is to a teinixiM) 
 Act, long since expired, that the writ owm H" 
 
 nrigin. . . 
 
 Murisonv. Mnrison, 1 Tluun., (1st Ivl), 1>."'' j 
 (•2ndKd.), p. i:i(5; '-'Thorn, " 
 
 ©Geo. 3(t7«H, c. 10- . 
 
 (An Act coneerning hail, the title mil) "I 
 which is printed)— ..f 
 

 STATUTKS. NOVA SCOTIA. 
 
 I. '182 
 
 ^ iM'HMiiinl |iuii| "ViriiMiiHilialcly In I lii^ Hinvcydr. 
 (^|"'i.il ImII ill thr r.Miiiiy npoii ai'lidtm .1,.. j Hut \>y llif i:i A || (i,... ;i, ,•. ;i, ili, law wuh in 
 
 |»inliii>,'iiitlic,Sii|iriim. ('(.ml of tli.' |'i..viiici') IIiIm i«'m|m'c| allciv.l hn it hiaii.l-. In llir An m 
 
 >'" IS (iCO. ;i (inS), f. 0. plfHriit ill fnivi! (7 (!,... |, ... •_»), ,iii.| tli.w for 
 
 fciliiitH me now " lo Im' hiiiiI for uinl ivcovdroil 
 
 ' ii"! Act wliiili ri'i|niri'il any iilliilnvit lo hii|i- 
 
 |»iM "lit of iitliii'linirlil. 
 
 Miiil-ioi, V. .)r„n\„„, I 'riioiii., (Ist |.;,|.), 1(17; 
 
 C-'nil I'M.), i;tll: •JThoni. '.'.VJ. 
 
 •V" 1H««0. ;» (U7K ),('.«. 
 
 'ta;<»Uvo.:i (1708), (.1:1 
 
 Vm IhOco. a (177M), r. 0. 
 
 1*1 lUUeo. :((17imi, <;. » 
 
 V" 18«C0. ;» (177N), f.O. 
 
 KMa-o. 3(1770), f. 3 
 
 (All Act for cNtuliliHliiiij,' tin. riitc of intiicst) — 
 V" 'ilMl K. N., ('. M'i, N. 1. 
 
 II iim. » (1771), c. «, 8. I Cf. .llh K. S., 
 
 c. 94, H. 22 
 
 •■ 77('(« )'•/,,/•, „ siili sh'ill !„■ iniiili i,f hniils 
 "t Inn minis hijihr hiislnnul niul. Iiis irif,, /„ - 
 
 '")•( siir/i ihiii s/in/l he niliil mi'l .siijllci,iil tii ,,„ 
 
 '■<>rthi wifv fvinnthi ri fori vij III' hi f ilnmriij'tir '"'">"' •'''"'" '■''•"<' Ihn, iiniiinln. lln rnirihsl 
 'III iliiYiiMf of hir liKuhitHil. shi shiill h, r.t-- ■yi'rx/inl. iif Ill's Dijiiiiii, uimj nrnsl. iwiin.snn 
 
 liy llif .SiirvcyoiH of Ili^liwiiyH licfopf .liiHli.iH 
 of till) IViii.'i! in like niiuiiiir a» .IcI.In me Mini 
 for iiiid id'ovciTil " iiiiil ulii'ii rniivcil lo Im' 
 iippiicil to lilt! rt'iiiiiiM of the lii>iliway«, ((c. 
 Sininiiii, .'ml, v, /), U'olj; , 
 
 I Thoni., CJnil K.I,). IIW, 
 
 14<I;I.>U«(>. :{(i77l), c. I 
 
 (Kxiiininiitioii of a^'cil ami indrni witiicMNCN, or 
 of tlii.Hc iilioiii to . I. .pari from tin, I'luvincc) - 
 WitiiinN waM piTMcni at Hint trial and .Nainiiud 
 lira run, IiIh ilcpoNiljoii liaviiii,' prcvionHly Ih-i'm 
 l.ikc'ii iiiukr liif .Statiilf. licfoic ihu hccoiuI 
 trial llu (lieil. IVponitioii litlil adiiiiNsil.lc at 
 Hccond trial. 
 
 Uroirii V 
 
 /ioii/i, I Tlloln., (iNt Kil.), lOM ; 
 
 C-'iid Kd.), I,'J7. 
 
 ir» ii 10 «i'o. 3 (177.1), c. I- 
 
 (In aMieiidnu'iit of \\iv. Hevrral lawN .onicrniiig 
 >ail) - 
 
 '/'lull ill nil niiisis irlii n llii sum hi ilr- 
 
 uiiiiiiil 1,1/ ,,,i,. of /lis A/iiji sill's Jiislins uf llu 
 I'liin. irhithir shr hiitli lion, llir siimiirnhi. 
 
 ..)• hold lo liiiil ,11111 ilihlor onlililors," upon alii 
 davit of till' plaint jir, etc, •■ nuil Ihr sum s/iiri- 
 
 'liiiiiiin'hi, mill irithout romimlsion from hir' .''''' '" ••""''' ".pi'luril. ilr.. shall hr imlorsnl on 
 
 ''«.«'"'«(/, itlld if liifoir sKch .liislirr shr shnll 
 ■'■'■''irr ihiit shr hiith fnrlij mid i-olinilnrilii 
 ^'■jniil siirh drrd, mid Ihrniii ussiiiiird hrr 
 '■'•ihl of down; Ihr Jiistirr shall Ki'rordiiiiilij 
 '•rtif'J siirh iirktioii'liijimilit. mi Ihr ihrd, 
 "■Ml shnll firrrrr }„„• hrr from Uir rrroi-rrn 
 ■.'li<r riijhl of ilotnr to siidi lands so roii- 
 ■■'joir 
 A wiil(.w iH entitled to dower in her hiiHhand's 
 'liiily «f redemption, in 11 ease where she was a 
 l^'ity to the mortgage for the purpose of n.le.iH. 
 111!! litr dower, under the Provincial .Statute; 
 <ii'l liir claini will he proteeted l.y the Court of 
 'liinitiy in <li8tril>utinH the surpliw left after 
 !'Wil,)Hiirc and sale of the inortyaged prenii»e,H, 
 W'laftir [Kiyinent of the iiicunibianeea to which 
 'lie Hiis a party. 
 
 Collins V. Slory a al., James, 141. 
 
 l:J4UOeo.3(1773),c.3- 
 
 ''"• l!li,s8, .J., delivering the judgment of the 
 
 "iirt-Korinerly under the ohl A<;t, 1 Ceo. 3, 
 
 '4, tile forfeitures imposed for neglect of 
 
 ^W on the highways, were, ufion the complaint 
 
 'ihe siiiveyor, to be levied by warrant of dis- 
 
 Ihr irrit. rtr.. for irhirh sum. ,lr.. Ihr /•roroul 
 Mnrshnl. Shrri.tr, I'oroiirr. or Ihiir drpi,ii,s. 
 shall lalir Unil. mnl for im iimrr." 
 I .V" 18 «co. 3 (1778), c. «. 
 
 l8«co.8 (1778), c. «- 
 
 (An Act to amend, render more elTectual, ami 
 reduce into one Act the several Acts of t|i,. 
 Province concerning hail) - 
 
 /'ir I'.liss, J. — What was our earliest .Statute 
 <m this subject I have not been able lo ascertain. 
 An Act concerning bail was piw.sed in tiie (i (ieo. 
 ."{, the title of which only is printed. The first 
 now to be found in our Statute liook is (1*. Law, 
 vol. 1, p. 140) S (ieo. ;{, e. 7, intituled : "An Act 
 for taking special bail in the county upon actions 
 depending in the Supreme Court of this I'ro- 
 vince," which authori/.es the appointment (»f 
 Commissiimers to take allidavits, to hold de- 
 fendants to bail, and to murk tlie writs for Iwiil 
 accordingly. 
 
 Two other Acts were pissed soon after this, 
 viz : 8 & 9 Oeo. a, cap. Vi, and 9 & 10 (ieo. 
 .'}, cap. 6, concerning bail, of which the titles 
 only are printed. Then follows the 15 & 16 
 
vw.\ 
 
 STATlfTKS, NOVA SCOTIA. 
 
 i:isi 
 
 «ii<>. ;i, c;i|i I, (I'. I,iiwH, vi.l. I, II, l!W, liiUni 
 fniMi Kiiy. Slut., I-Jdcii. I, cip. 'Ji») •'iiiimii'iiil 
 iiHiil iif llici Mvcriil luwN fiiiiit'iiiiiiK liuil, "wliicli ' 
 ciiiii'Im lliiit in nil niliNi'H wlii'i'i' till' Miini ni' (Iciiiiilicl 
 hIiiiII cxci'id I line |iiiiiimIh, iIu' I'mviml MuimIi.iI 
 iir IiIm itcputy iiiiiy iirrcNt, iiii|ii'iMiiiii>i' liolil tn Imil | 
 any ilt'litor, iir ili'litinN, u|iiiii alliiliivit nf llu' il<' j 
 friidiiiit.iinil tlirNiiin N|M'i'ili<'il in t!ir itllii^iu it hIiiiII 
 lie iinlniNcil (III till' wi it fill' wlii'li tlif I'riivwt | 
 MminIiiiI, Sliiriir, ('(iidiKT, 111 tlu'ii i|('|iiii iis, slnill 
 tllkt! Iiuil, anil fur no innl'i'. NnW, tlu'Hr tWnAi'lH 
 a|i|ii'ai' plainly lnn'rnnni/.i' tin- law iih iiiliniliiiiil 
 liy tlir Staliilt'iif lli'ii. 0, vi/: lliiU it wan nliligii- 
 tiiry (111 till! Mhuiiir to take liiill ; luit yil that 
 Statiilf Im in'illii'r ciiactcil lii'ii' up tn tlir prriml tn 
 whii'li the aliiivi' Ait icfciM, nnr wcri' any nllu'i' 
 Htaliitory rcfiulaf imiN in fmci', imiIi'hm iniitainril 
 in Honic of tlioHi' I'.Npircil lawH, 'I'lu' Kn^liNli 
 Statute tlicn, anil the prai'tii'f f.iiiiulnl upon it, 
 may have ln'cn I'onMiilrrcil to have liri'ii liioii;,'lil 
 to thin I'loviiicf; at all cvriitH, tln-y iiiiiHt, in 
 boine iin-ivsure, have licrii ailojiteil from neocn- 
 aity, or kohii! otlifr exprcsN ri'jiiilatioiiN iiiiiNt 
 Imvo liwn inaile wiiicL' Slicrill'w liere loiilil no 
 longer, iiftor tlm two Acts aliove muiitioneil, lie 
 eoiiHiilereil an having; the eoininini law rij^lil of 
 taking or rejecting liail at I heir pleaHiire. IJut, 
 however tlie law may at that time have lieen 
 helil.anil whatever may have lieun the I'mviiieial 
 praetiee iinilcr it, uh it then Mtooil (if any set- 
 tleil praetiee imleeil iliil exist, which is rather 
 (picHtionalile) all iiiicertaiiily with ref^pect to 
 tliiH particular Hultjecl wiiN Hoon removed liy an 
 ex picNM Statute, that of IS ( ieo. .'{, e. (5, which 
 was pasMt'il alioiit three yearn afti'r the one last 
 meiilioneil ; "to ameiiil, reiuler more ell'eetiial, 
 anil reilnee into one Ai'l the several Acts of ihc 
 1'roviiiee eoncernilig liail." The first ami seeoliil 
 sections iif tliis Act are of similar iiiiporl with 
 the then existing Act of lo & Hi (leo. 'A, c. 4. 
 The third seutioii is exeecdingly important. To 
 a certain extent it in fact ri'-enacts and incorpor- 
 ates togetlu'r the suhstance of the Kiiglish Sta- 
 tute of ii.'l Hen. (i, relative to taking liail, and 
 that of 4 Anne, relative to the assignment of the 
 liail-lioml. It certainly, however, ditleiH from 
 both, and from the former in several respects, 
 not, perhaps, wholly unimportant to the pri:- 
 seiit imjuiry. Hut the chief and most reinark- 
 alile j)oiiit of ditrereiice lietween this and the 
 Statute of Hen. ti, is that ours wholly omits 
 that identical clause which makes it impera- 
 tive on the SlierifT to have the liody at the 
 return of the writ, and under which he is pun- 
 ishahle liy the Court in Kngland by attach- 
 ment for a breach of that duty. In framing 
 the Provincial Act the Knglish Statute must 
 have been had in view, for substantially in 
 other respects it is borrowed from it. The 
 
 iimiNHinii III' a I'liiiiHi' Hii im|Mirtanl cmilil iIhh 
 fore have only been fliilo ilimgii. .\iii| iImi 
 intention, it appearn In me npially iliin, iini.>l 
 
 have I II to alter the respoiiMiliilil ii -. nf iji, 
 
 Shelid' which resillteil from the nmillril i Uii-c, 
 liiNtead of eiiinpelling him lilHt to lake hiiil 
 and to return ri /il ciir/iii- as if he had iml ilnni 
 Ml, and then making him liable In piiiii>li 
 mint as for a bieaili of duty and iniili iii|ii. 
 which would nut, I tilink, be the most iilisimi. 
 meaiiM of giving the plaintilV redresH against llu 
 Shelid' if a lemedy by .Statute wile now foi iJi. 
 lirsl time to be provided, our .\cl h;is piMMii'il,! 
 more plain and dirc^ct course. It piewiiln!. 
 alone the eonduct which the Sheritrs must piiiMii 
 ill taking bail, namely ; that the sureties iiiii>i 
 be siitlicieiit, leaving to the |il,iiiil ilT, if lie i- 
 injiired by a neglect of duty in this part iml, u 
 on the part of the Sheriff, the remedy by actimi 
 which necessarily ri^siilts to him tlierifidin. 
 Nor was it without a piecedi'iit directly in 
 point derived from tliii Knglish Statutes I linn 
 selves (II (!eo. '.», e. H», s. L'.'t). Tlu! SliiliMr 
 of II tleo. '2, which compels Sheritl's fur iIh' 
 beiictit of landlnrds, to take pinper ic|iIivim 
 bonds, may have been adopted by oiii' l,c;;i.-l.i 
 lure as their guide on this occasion, umlir whii li 
 the SherilT is not piinisliable by attachiiii til fnr 
 taking insutlicii'iit seciiiiticsj but the plainllll"- 
 remedy is by action. 
 
 Jiirk-<oii v. C'lniiilii//, I Tlioiii., ('Jiiil I'M.), Is. 
 
 /'()• I'.liss, . I. -This Act authorizes no spiciiil 
 order, invests the.liidge with no diMcretioiiiuy 
 power either to Imld to bail or to attach; ami if 
 he eaimot indorse the writ as the Act iliivcts, 
 he cannot indorse it at all. If he can make .i 
 special order under this Act, so can a .liisticenf 
 the I'eace in the absence of a .linlge, fur tin 
 same power is given to one as the other, ami tin 
 latter would then be authorized cipially In miUi 
 a defendant lobe held to bail in special ciisiv. 
 We can never suppose this could have lieeii imi 
 templated by this Act. Our I'rovincial Ait i- 
 substantially like the Knglish Statute of I'.M.V". 
 I, ca|>. '2'.), which rei|uired an allidavit lufim 
 bailable process ciiulil issue, and wiiiili wiimM 
 have limited that process to cases wliiic llu 
 debt or damage was certain if the .)ml(;e li.nl 
 not a power of holding to bail inilcpeliili'iiliy 
 of the Statute. And so he may do iicic, f"i 
 the same reason, notwithstanding the I'l" 
 vineial Act. But the process of attafliiiu'ii 
 owes its origin and support altogether tn <iiii 
 Statutes, and by those alone it can therefore h 
 regulated. He has, consnipiently, no autiiority 
 in respect of this wliieh the Acts do imt givi 
 him ; and as they have intrusted him with n" 
 discretionary jwwer, but have liniitcil his m 
 
I.SH.J 
 
 STATIITKS NOVA SCOTIA, 
 
 i:iM({ 
 
 oi-M'liirlit I if .III mM.ii liMii Ml I CI II ili'lil, I'll liiiiily liciii lili il ('\i'<'|)lili); t lir I'lii'l lll.il nil i'\i rill lull llilil 
 
 I 1.1 II rvrni.sr tin ni liir, liri'ii Immiii'iI, Miht iIi.iii lliii I \ y'''"" iilli rvviinlH 
 
 Miiriinii V, MiiriiDll, I Tlinlll,, (hi. Kil.), Ml'.'; n mlr iii^i was nlilujlinl fm IciiM' III lilc a ii'cnnl 
 
 CJllil l'',il.), I.'tl. {\n'yr\\\ iiiiiii fiiii hiiic ill iinli'i' tlliil il llli^lil III! 
 
 IH'iiilllrcil iiH ('\ iilrlH'i' ill II |ii'llilill>{ lli'tinll lir- 
 
 it) (irOi i( 1 1171)), ('• N, M. I Iwci'li I lie HiiliN (if I III' ii|'j|{iiiiil pai'lirM, llii' til In 
 
 '• Thill ill II// nn,,, irh'n <iili<r priffih or /Hill >'• I'l'i'l '"'iiiK •" i|llrHtiiili, tilt! riilo wiih (Un- 
 
 li'- lii^i/tiiiii/'' ilin/l III /nil/ mil i i' iiiii/ illiinili 
 • hull ili'i-i /iihniii l/ii /iiiiliis I . I, run/, mill llii 
 .'fiirri i/iifi III' I III //iilllii'ilifs, /'or /In lini-ii irlii ri 
 till >iimi sliiill III liiiil mil, iir /irii/ii).'<iil lulu Inii/ 
 •ml, rilnliiiii III Ihi i/niiniiji ^iijli rnl, nr /Iki/y lulu 
 >iijliriil III/ sinh /iiiriii ■<, llii sniin >liiill In ililir- 
 
 'liiii'p'il nil till' Ki''>ii>iil that till' ii|i|ili>'atiiiii wiih 
 iiiivilt' tiMi lute, mill liy ii |iiiity in aiinllii'i' Hiiil. 
 
 Ii'iiil V. Siiilili, I N. S. I»., ','(1. 
 
 :tM Urn. :i inoNi, c, I, xn. t and :i 
 
 S I. " '/'/('(' /'rum niiil iij'li f Ihi imlilli'iiliDii of 
 
 mini il III/ n jiiri/ In In iirih nil Inj llu J nil in ■< mil l/ui ,lrl,iii,iilli ii iiiiir rm'iliili/ irilhill Ihit I'liiriiin , 
 
 oj'llii iiixi liiinn, irliii >hall III iii'itm iiiiiiarliiillij or who iliiill Inniiflir, iliiriii;/ llii nmliiniiiiin nf 
 
 'nilili riilliii llii s/im'." Ilili All, n,mi Innsiih III! riiii illiill III /iiniiiUnl 
 
 ■'^" I Win. \% V> Oil, N. I. ,,, 1,^ ^iiiif ,.,,„„;„ irilhlu litis I'riiriiin , irilhmil a 
 
 M/iiriiil /iiriiiil, iiiiili r llii liiiiiil anil inil of' iln 
 \\){iV». l\ (inOt, «'. 10, N. !| Cf. .Ilh K. S., <!onriii>i\ l.ii nil mini lliinnwr, or Coinniiimli >■■ 
 i: 125, H, 1 I int'liiif, for llu liini Inimj, it'''." 
 
 KiiiictH, >'lhal irhin nin/liunsi or h m mi iil shall \ ''"'"^'^ I" "''''^'" •""='' l'^"'"'"'- '"' "'"^" "l"'" '" 
 hililhif llu !/iar,ilmi monih.' inirniinj chilli In ^vritliiK liin iiiiino, iikc pla.T nf nativity, rank 
 ■ilrni,iniilii'li,n li!,iihi monlli, on, mw///i's -ao'/r '""' ""'"I'"''"", pniviilnl li.i shall I'nt.T into ii 
 
 liniiil for his ^nnil licliavinr, aiiil cninply will) 
 curtain iilliur rcgiilalioiiK. 
 
 S, ,'J. ".t(/'/ il ' I'nrlhi r I iiitr'nl Ihiil if mi if 
 iiliin, iisiiforisiiiil, iliiill Hill ohliiin it /n niiil, il'C, 
 III shilll, on roiirirlion llu mil'. In si iili in'nl to 
 iin/irisoiimi III, it'c., or /imj sioii fm as shall In: 
 ini/iosiil OH him III/ llu t'onri In fori irhom hi shall 
 III roiiriiiiil, ami In iraiis/iorlnl In i/mnl lli-t 
 Miijishfs ilnniiiiioiis In Aimrini, li> siirh /ilnri 
 as Ihi' lion rnor, li-c. , tniii/ iliink /mi/n r lo ilin i:l," 
 
 llilil, inui'cly II Ifx'iil pnlii'u n'jiiilatlnii to jilauo 
 alii'iiH uikUt till! »yi' and cniitinl of the liovcni- 
 mi!nt, Imt that it gavi: tlii'iii no now riyhts or 
 priviluguti anil ruinovcd iid (UHi|iiallliuiilion. 
 
 Till. I'roriilniii, Stewart, ]). IHS. 
 
 i» (jco. ;i (IMNI), c. 1, .s. 1 - 
 
 ( Mode of pro(.'i:i!iliiij,' wlii'ic it is ni!ci's.sary to 
 initial' frniii landlnrd to tt'iiant i.s in ijiu year i iiiaki: or alter a road tliroii^'li tliu improved landH 
 l'""k l.'l or II Ifi'ii. .S. The Court lielil I hat I of any persons provided) - 
 
 The jury is " <o iiukii^h .swlt ilnmnijis to Ihr 
 
 i iiwnrr III' ownirs, mid linniU iirti'iiidits, if Kiivh 
 
 laniln, iKi'imUiiij In thiir sivintl iiitrnsts, an 
 
 iiiij, mill irhni Inj Ihi irnk, om irn k's irariiini/ 
 •hull III ijiri II lo Ihi li iinitl in /nissi sslon," 
 
 I'tr llalliliui'lon, ('. J. -This .Statute iillowH 
 l.iiiiiliiids to teriniiiati! the tt!iian(!y upon Ki^''"t' 
 tlii'i'i.' months' iiotiee to the tenant, I, lit dnes not 
 i\pit's,s|y say that tenants may give a similar 
 notice In the landlnrds, and it is, theiefori', con- 
 ti'iiilcil that they (the tenants) must still gi\e si.\ 
 inmitlis' iintieu as eominoii law rei|uireH them to 
 llu ill Kiigland, 1 would only s,iy that the uniform 
 |iriU'tiri! Iioili in l<]ii^dand and this eouiitry has 
 |iiiiic('iled upon a principle nf reciprocity in this 
 |Mitii'iiliir ; the j,'eneral rule in l'ji;^laiid is si.\ 
 iiioiilli.s' iii>tice liy and from lintii landlord and 
 icniuil ; hut in all cases where particular customs 
 «iiK'tiiiii a less or reijiiire a longer notice it is 
 ilwiiys reeijiroeal. 
 
 /'ic I'lliss, .1. -The earliest mention made of a 
 
 liiiiiliiiil and tenant stood on eipial terms. 
 llruini v. liuulc, 1 Thoin., (I.'il Kd.), lO.S ; 
 
 (•Jnd Kd.), 137. 
 
 2H lieo. :{ (17S7», c. 1.5, s. 5 - 
 
 KiLuted, " In fori /(»: (the attorney) •</(«// issiir 
 ■rii'iiliiiii in any ransi^ he .shall fli, a ro/ii/ of Ihi: 
 •'liil Inxi il lull of coats ill the dcrk'i ofin, of the 
 'Jmrl out if which snch ixrculion shall issm . 
 '>iid ill cases irhiri. ix^calioni* issue out of the 
 •^'"/icfHic Court, he iha/lfrstjile the judifmeiit roll 
 "I ihe. jirojier ojlice, and shall, n/ion the execution, 
 "iitorsii the realdeht due." 
 
 Ajiulgmeiit had hecn entered up on verdict, 
 tlitre was uuthing to show that a record lunl 
 
 lliv said JHi'ij slinU think nanonuhlc fir the 
 viditc of the lundx and improvements miule on 
 xHch landx to he tnkcn into such hiijhu'inj ns 
 (duo for the c.rjn use to he ihiinmed, upon the 
 owner or tvnunl fir niakimj feiieen or ditches 
 on the siile of such hiijhimtii." 
 
 S'l 1 Vlin. t, c. Utf, s. 1. 
 
 40«co.»(1880), c. 1,». 3- 
 
 (Keijuires that the return of tlie Sheriff should 
 after notice to the owners of the nature and 
 course of the road to be made or altered through 
 
1387 
 
 STATUTES, NOVA SCOTIA. 
 
 l.'',S8 
 
 their laiidR, lie eoiilirinetl and recorded l)y llie 
 Court of Sessioiis, iind lliat the road orliigliway 
 slioiild 1)0 made or altered accordiiij;ly, ami 
 thenceforth become a public road or highway 
 for all His Majesty's subjects) — 
 
 /Vr Ritchie, J. — Under this Act tlie road 
 docs not become a public liighway until the 
 return has been continned after notice recorded, 
 and, in my view, the laying out of a road 
 could not, even in view of the long user, be pr(v 
 sumed from the fact that tiic Court of Sessions 
 merely onlered a Sheriff to sunnnon a jury for 
 that purpose. 
 
 Kmniey v. IJickmn cl al. , '20 N. S. R. , 
 (8R. &(J.), 95. 
 
 On appf'.al to the Supreme Court of Canada, 
 
 Ilild, reversing the judgment below, that in 
 the absence of any evidence of dedication of tlie 
 road, it nnist be j)resunied tliat the proceedings 
 under the Statute were rightly taken. 
 
 Dkkwn V. Kutrmy, 14 S. C. R., 743. 
 
 41 Geo. 3 (1801), c. 5- 
 
 (An Act for the repairing, etc., streets in the 
 Town and Peninsula of Halifax, etc.) — 
 
 Sa. 21 Vict. (18«4), c. 81. 
 
 50 Geo. 3 (1800), c. 11- 
 
 (An Act rc(|uiring the inhabitants of Halifax 
 to kcoj) the gutters and streets in front of tlu'r 
 premises free from nuisances of every kind) — 
 
 .SV(; 21 Vict. (1804), c. 81. 
 
 52 Geo. 'l (1812), c. » 
 
 Per Halliburton, C. J.-If the effects of the 
 testator arc .suflicient, after disciiarging tiic debts 
 and funeral expenses, tlie executors will be com- 
 pelled to pay the legacies by tiie Court of 
 Ciiancery or the I'Jcclesiastical Courts in Kngland 
 whether he has formally assented to the legacies 
 or not ; nor do I sec any diiiiculty in the way, 
 when sued at law, to pleading whatever would 
 amount to a defence. If ho has no assets he can 
 plead that. H ho has fully administered, he can 
 plead that. H the estate is insolvent and cannot 
 even pay the debts, he can plead that ; and if ho 
 has reason to apprehend that it will prove so, 
 he can apply to tho Court for lime to plead until 
 ho ascertain tho fact, as has been the constant 
 practice of executors when sued under such 
 circumstances, for the recf)very of rlebts since 
 the passing of the Provincial Act, 5'J (ico. 3, 
 cap. ,S. If owing to any peculiar circumstances 
 the estate is so situate as to render it necessary 
 to S'esort to the Court of Chancery, tlie executors 
 can take that course,and upon stating a sufficient 
 
 case, tiiat Court would enjoin tiie legatee frcim 
 proceeding at law. 
 
 Kllx v. AV/,1, I Thorn., ('Jnd Ivl.), 17;j, 
 
 52«co. :J(1812), c. », 8. 3- 
 
 " Thai it fhall not In lau-ftil to iiraiii llrm.ic in 
 I any ixirutor or admiiiiflrittur for tin sali ,,/ 
 rial (Htati: until mii'h executor or adiiiiiii.'iirntor 
 i ihall_fili in. the SiiTilary'n ojfiir th< rirlijirali df 
 the Jiiilije of Proliate for the county or dislrlri 
 where the landx lie, that full anil nmiile m.cnrihj 
 han liceu ijirin to account for thi iiroccntx of x»'7i 
 xalt accori/inij to Ian:'' 
 
 Wiien John McDonald, tlic owner of ccrtiiin 
 real estate, died insolvent, iuiviug a])pt)iiiit(l 
 four executors of his last will, and two of tin; 
 executors took out Probate, and ol)taim(l uii 
 f)rder from tiie (lovernor in Council for the sali 
 of tile land, under which the laiul was sold id 
 Ciiisholm, 
 
 IIi'/il, that though tho other two executoro liml 
 not renounced, and the two who acted miiloi 
 the order had not given the security rc(H(>ik.;.riiy 
 Statute, yet the oriler could not be iinpiigiod 
 by this Court. * 
 
 Halliburton, C. J., ilixxi.ntini/. 
 Ghiiholm v. McDonald et at., 2 Thorn., 'MM. 
 
 54 Geo. 3 (1814),c.l5 (r.5tiii{.8.,c. 1» 
 
 Protecting olHccrs and otiiurs tlicir as.si.-.liuil.-, 
 acting under the warrant of a justice, exl4!iiil> 
 to, and includes tiiein, when acting uiidcr an 
 execution sulistituled for such warrant. 
 
 This Act is a transcript of Imperial '24 ( Ico. '.'. 
 c. '24. 
 
 A Surveyor of Highway wlio levies under cxi- 
 eutioii for forfeitures for neglect of lalior on tin' 
 highways under 7 ( !eo. 4, c. '2, is protected liy 
 54(!eo. 3, c. 15. 
 
 Seaman, 2nd, v. DtWolf, I Tlioin., 
 
 (2nd Kd.), i'J.i. 
 
 55 Geo. 3 (1815), c. 14 
 
 (History of enactments to abolisli csl.itw 
 tailed) — 
 
 Ry the Provincial Act, .55 (Ico. 3, c. 14, 
 after reciting that tho method tiieii in use for 
 barring estates tail by common recoveries, win 
 liable to many objections, it was enacted tliat 
 the tenant in tail might convey tiie lauds so liuld 
 by indentures of lease and release, wliicli, being 
 duly enrolled, should be sufficient and effectual 
 in law to bar all estates tail in the lands so eon 
 veyod. Indentures under this Statute, tlioii);li 
 by no inoans fret[uent, were occasionally i" '"'i'' 
 they afforded a simple and effectual ineaiis f"i 
 converting the estate tail into a fee simple ; and 
 
1389 
 
 STATUTES. NOVA SCOTIA. 
 
 1300 
 
 Ihiil without tlic iwscnt of the lioir in liiil, cx- 
 |ii'i'M.s, or iiiipliud. 
 
 In /•( Kslnu. ofSimi>so,i, I t)l.l., ;{17. 
 
 l&2Geo. I (iS'iO 21), C.IH 
 
 ('I'liis (jliupter i» wrongly iiiiiiiln:i(!(l "J.'l in tiic 
 AclH.) 
 
 Nut a (liicluriitory Act to remove donlits as to 
 till' naluie of the aution.s to whicii I (iuo. .'J, c. S 
 ixlcndi'd, lint was paHHcil to renuidy an evil 
 iiri^ini,' nndcr S (leo. ;{, ». 2. whicii tuialtlud umli- 
 tills, hy the niitro Keivici; of a suininons on an 
 iigiiit, to attacli the gooiLs, eflbuts or credits of 
 uiisciit persons in tin; iiands of siicii agent to an 
 iinhniited amount, without making any atlida- 
 vil lluit a dclit was actually due lo them liy sucli 
 iilisfut person. 
 MiiiiyoH V. Mnrinoii, I Thorn., (1st Kd.), p. !().■); 
 
 ("iiid K.I.), p. i;t4. 
 
 3 (Jco. 4 (1822), c. 32, s. 21 - 
 
 /■'/■ Hliss, .1. - l!y thi.s Act if any per.son siiall 
 lilt 1)1- injure ai>y trees planted or left growing on 
 tiic sides of any puMic .squares, streets, or pulilic 
 iiiylnvays in this Province, he shall pay 40 cents 
 liir each, to he recovered in the King's name. 
 Hliv is no limiting to ohl roads, or exclusion of 
 tKw, the penalty extends to all. Nor can it he 
 siiil that the renuidy is cumulative, or that the 
 iiwiicr's right of action is not taken away, for 
 Miiilfr these Acts the former owner him.self may 
 liii prosiicuted for these injuries. Tlune is no 
 ixit|)ti(m, nor shouhl there lie, if as I suppo.se, 
 the laml itself is transferred to the ("rown. 
 
 V" 4 Will. 4, c. «0, s. 1. 
 
 4 Jt i» Geo. 4(1824), c.»- 
 
 (.Aii Act to authorize the incorporation of a 
 imipiiny for making a canal l.y the Uiver and 
 Likis of the Sliid)enacadie) — 
 
 i'liis Act and the foHowing Acts (l.S'JT, e. 17 ; 
 I"*'-'!!, c. 4S, and ls;J7, c.77) are the various Acts 
 iiiatiiig to this company. 
 
 Tile cases concerning the company ami their 
 "(flits and privileges are 
 
 Fitirhauks V. A'«A«,'2H. &(!., 147; Ca.s. Digest 
 •'U ; Crriiihlou v. C'liiNirk; 2 R. & (i., !M( ; 7 S. 
 L'. K., :t4S ; Fairhaiikx v. Cnii/htoii, ;20 N. S. K., 
 (»«.&(;.), S3. 
 
 U 3 Geo. 4 (1824), c. 7, 8. 3 
 
 I'.iKicied, "//«(< lunajhrno writ of allarhmnt 
 'hall l,i> umtd in any ratip, exccfit aijainst nlismt 
 w iihxrondin,) dihfm-s, and for the rcrorn-i/ of 
 'I'l'tfi-nii/racti'd /oinr lo I hi /Hissiiiti of litis Ar/." 
 
 I'wUm; this the property of persons who were 
 I'lfsi'iit, a.s well as of those who were absent, 
 '^^"iilil he at tached hy mi-iui: process. 
 
 Si I 1 Geo. 3, C. 8. 
 
 I Geo. 4 (182«), 0. 2, s. 30 (T. iilli B. 8.. 
 
 c 47, a. 29- 
 
 (forfeitures for neglect of lahor on the high- 
 ways to lie sued for and recovered hy the Sur- 
 veyors of Ffighways liefore Justices of the Peace 
 in like manner as dehts are sued for and 
 recovered) — 
 
 'I'his procedure was stdistituted for that under 
 I «ieo. ;{, e. 14, hy which, upon complaint of the 
 surveyor, such forfeitures were to he levied hy 
 warrant of ilistress and paid over immediately 
 to the surveyor. 
 
 Surveyor levying an exoeuticm in case under 
 7 (Jeo. 4, e. 1», held protected hy M <!eo. ."J, e. I"), 
 which protected ollii'ers and others, their assist- 
 ants, acting under a warrant of a Jiislii e. 
 Siumaii, hill, > . /'.'. ^ ' .if 
 
 1 Ti .- .t::ndi':d.), i<j:{. 
 
 7 Geo. 4 (1820), 0.2- 
 
 •lury to lay out or alter such highway or road 
 with most convenience to the pulilic, an<l least 
 prejudice or damage to the owner or ov\ ners of 
 the hind in which the .said highway is to he hud 
 out or alteied, and to a.s.se.ss the damages to the 
 owner or owners of such lands as the said jury 
 shall think reasonabli! for the value of the land, 
 and improvements maile on the same, and also 
 for the making of fences on the sides of such 
 highways (sec. \l\). All jjuhlic highways here- 
 after to he laid out as aforesaid, shall not lie less 
 than (10 feet wide (sec. I.S). Commissioners, 
 hefore making alteration at the expense of the 
 Province, to make return to the (ioveriuir and 
 Council of the probahle amount of any special 
 damage which it may he neccs.sary to pay for 
 carrying road through waste and unimproved 
 lands (sec. 17). .S'<< sec. M), relative to v<dun- 
 tary surrender of laml without chiirge to the 
 owner, for a pid)li(; road or highway, owner .so 
 voluntarily surrendering to have the whole of 
 the land of the old road, in fee simple, in lieu of 
 the land so given uj). 
 
 S" 4 Win. 4, c. «tt, 8. 1. 
 
 7Geo. 4 (1826), C. 3- 
 
 ( An Act relating to Commi.ssioncra of highways 
 in Halifax, etc) — 
 
 A' 27 Vict. (18«4), c. 81. 
 
 N Geo. 4 (1827), C. 17- 
 
 (An Act in addition to the Act to authorize 
 the incorporation <if a company, for nuiking a 
 canal hy the river and lakes of the Shulieii- 
 aeadie) — 
 
 s''< 4 JiSGeo. 4(1824),c. 3. 
 
1391 
 
 STATUTES, NOVA SCOTIA. 
 
 1392 
 
 S liCO. 4 (tS'27), 0, 2J{, S. !J I ^oilaiiil iiiliiron iin iil^, ava/.-o llu <rli lit of J) ucini, 
 
 I'luvi.U.s t,.i thr ui.iminluu.hl of iippnusois, I ""''■^•"KV '" '" ''"'" I'll ramm lhnoj\ Ih s„;,l 
 
 1 tlirii I'riihnliliri shall iirofii d In mah ii jii^l iii"l 
 
 who iiro • . 
 
 "Tou,.,.,-aisr„ii,l rain. I h, laml^ imiilnl for "I"""'''- '■alimfioii and a,./,rai.s,m, id, ammliiui 
 III. road, and ll„ diuna,,..^ lo v»,/< oini, r or "> »" r.rnunslaiin s of /hi ras, , of th, daiii,,;,, . t„ 
 ,. //( iiiild iiiih III rsdii lliroiiilh irlioii land ■mcli m ,c 
 
 oiriii )•<. ' ' ■ I , 
 
 "To rain, and ai<,.rais, snrh lands; and ,n road or haihirnil, or alt, ration oj an old ui„ , dnilt 
 nsHisH Ihv da,na,i,s lo Ih, oirmr or I, naiil of sn,h \ '■"". si„,ili,;dl!,, /.arlonhirli, and s, ,.ar,il,l,, „-h,ii 
 lmi,ha,;'ordiiiijlo Ih, j„sl and nasomdil, ralii, >' '" '" I'"''' '"""■'' J'rorr<,'''rjhrda,,i,oi, t„...,l, 
 
 for iiii/irnri'wi ids and for J, iiiiinj.' 
 
 if th, xam, , 
 
 /'(■)• Hiillilmrton,(".il. , Doild,. I,, coHOdviHi;- 
 
 I Now, in lliuHd AlIs (i. e., 5 (Joo. ',i, i: 'J, s. .1; 
 
 10 «C0. I (1S20), C. IH - I in <!i"'. ••<. »-■• S, «. I ; «<> «lo.). :{, .•. I. s. I ; s 
 
 (An A.t to iii.l tho SU..I..-nii.',i<lio and Ciniil <'''"• ■♦• "-•■ ~'^< ' ''•■"• ■*• ''■ -' » ^^■"'' '• '• 
 
 , (111, H. I ; r> Viol. (!. ;{(>,) wi! Unci till! li'L'ishtliiif 
 C onipiiny)— , ,, , , 
 
 S,, \ Ai ."l Ii0». I (1S2I), V, 2. usinj,', in.lisciirnmiitcly, liie words, daiiiai;.' t.i 
 
 llu'owni'i"-" Valium of liif land "- " i'xiilmsi- (.1 
 2 Will I ( 1S;{2) eft- I pii'''l'ii«'".t< l'"'' 1'1'kI." ii'l ^^'i'l' l'"' *"""" "''J'''' - 
 
 (All lo antlioii/.(! Ilir Coniniissioncvs of Sticcts 
 at Halifax lo lioirow money foi' ('('I'lain \iw- 
 
 JIOMl'S) — 
 
 to oompensalo tlu' owner whose land is aiiniiicd 
 and taki'ii for a highway. These Sliihilis, 
 therefore, made in /ifir/ maliria, nuisl lie ciui 
 
 N" 27 Vict. (IWHl f. SI. ' •'*'''"•''' '"!,'<'""'''> '""' I eonsider that the siiiiic 
 
 2\Vm. 1 (18.12), <•."»! 
 
 (An Aet resjieeling jndj,'meiils and exeentions 
 olilained and levied against lands) 
 
 First Ael inlrodneing I ho eh^inent of registra- 
 tion of judgments liy which to Itind lamls. 
 
 Ciddinll it id. V. Kinsman ,1 ft/,, .lames, .'{OS. 
 
 :i Will. I {is;w), cr»2 
 
 (power vested in Court of Chanecry tr) catab- 
 lihh rules of praetiotO — 
 
 If, Id, that the Knglish rule, that conversa- 
 tions witii and adndssions liy defemlants cannot 
 he given in evidence, without having lieeii set 
 out in the liill of eoni|ilaiiit, is not apidii^ihle to 
 the practice of the Court of Chancery in thisl 
 Province. I 
 
 Caldwill ,1 (d. v. Kinsman 1 1 al., .lames, .S9S. 
 
 I Will. 4 (lH:i4), c «ft, s. 1 (f. illi U. S., I 
 
 c. 45, ss. 2 and 3 — 
 
 Directs the three freeholders "in n/iair to and. 
 riiir anil ixaniin, into tin in-ojiriity anil ni,;ssi/i/ 
 of such jirojiosid ni ir roail nr hiijhn-ay, or alli ra- 
 tion of an old onr, ns I hi' rasr may In, and if in 
 thiir opinion Ihr same shall In pro/iir and vii-is- 
 sary, Ihm In /irornil to lay ont and. murkoffsmh 
 ■neir rami or hi<ihirny, or all,ralion of an old nnv, 
 in sitrh iray as may In 7nosl for Ih, pidilir ,jnod, 
 and of till' liasi possdih damaii,: lo th, /nrsoH or 
 jiirson^ thrnnijh irhosv /iropirty it may In ni'i-is- 
 sary lo run Ihi- sami', anil Han upon harimj asnr- 
 taini'd the (xti'td ofsurh ww mad. or hii/hiray, or 
 alti ration of an oldoni', ami In in;/ madi avquain- 
 till with Ihv dislanrr the. sami shidl or may run 
 throwjh any pe.r.'ion't property, the nalnn of tin 
 
 meaiMug should he attaelied to languages tluis in 
 discriminalely used, wliich meaning is well ( nl 
 culated to ellect the olijeets the legislature had 
 in view when it usc^d them, and that object was 
 evidently to compensate the owner for the dam- 
 age he sustaineil )>y allowing the |iul)lic to use 
 his laliil as a highway, without divest iiii; I lie 
 fornuu- |)roprietor of the owiu'iship of the snH 
 
 /'(/• Pdiss, DesHarres and Halilmrton, .1.1.- 
 'I'he title to the soil of highways laid oiil under 
 the .Statut('S of this Piovince through the lands 
 of private individuals, and for which they have 
 received comjjensation, is divested out uf llif 
 owner of the adjoining land, ai:d alisuhilely 
 i vested in the Crown for the use of the iiuhlic. 
 Knrh V. />aiiphinii , .lames, 1,'p!I. 
 
 4 w III. 4 (18:ji), c. n 
 
 (.An .Act for increasing the cajjital stock of the 
 Shidienacadie Canal Company, and the miniliii 
 of shares therein, for eonft^rring further |io\\er< 
 on that corporation, and for other purpcises) - 
 
 .sv. 4 Jt'HJoo. 4 (lH24l,c.:{. 
 
 I Will. 4(lS;JI)C.ft;^- 
 Copied from 9 (ieo. ;{, e. 1(1, wlii(^h aincndi'd 
 ■21 .lac. 1, c. '2, (Nullum Teinpus Aet) restrainiiiL' 
 Crown from suing or claiming Ity reason of any 
 light or title accrued for si.xty years i)revieiis lo 
 that time. Sroll v. Ilmdirson, '1 Thoiii., ll'>- 
 
 a Vict. (1«40), c. 12 
 
 (.Sipiatters on Crown land cmabled to ohtaiii 
 title on paying reaaonalile piirehaso money) - 
 
 Shows the cd<'ineni;y of the Crown Inwaids 
 intrinlers on Crown lands. 
 
 Sroll V. Ilmdirson, '2 'riiiini., II"' 
 
1393 
 
 STATUTIiS, NOVA SCOTIA. 
 
 13!)4 
 
 :t Vict. (IS40I, (•.'.'» 
 
 (An Act to iliviilc mill .■scl ud tl 
 
 ! H Vid. (iSl.i), c. 'ilJ 
 
 I'liwiLsliii) (it Ji |ii(iviili'.s iliiil the tifi'liiililiT.s, ill liiyiiij^ ntl' 
 
 Saiiil Miiiy's, ill III,' Ciiiiiiiy of (inysliiiiniiuli, ii.s 111,, new n>.u\, .sliiill |iiii ii .■.•iiiiiii viilu,' ,iii tlii! 
 
 isipiiiiitc iiiiil ili.stiiiit hisiijii 
 
 I Vi<'l. (ISMi, clft 
 
 /'. /■ SI, Will t, M. II. I!y 
 (i\ii|il as ii!,Miiisl laiiils in ]Miss,'s.siiin nf I lie li, i?' 
 nf a i|,.|)liii- liy liiiiiil, to which luir rral iisscl.'^ 
 Ii:iil (Ir.'iiH'iiiU'il), the crcilitor liiul nn ncuni-.s,' 
 Mil ihc real estate iif his delilor. The llli In llie 
 KMli KiM'tidii.t, inclusive, of the (irsi Act of the 
 \\fsl (Jeiieiiil As.s,.MiliIy ((invt'iieil ill the eiiliiiiy, 
 <lii'« that this law prevaileil at that early iieiiml 
 ill this i'rovinee. 
 
 Ill Kii>,'laiiil (until tluM-eeeiit A(,t itf I'ailiameiil, 
 I .^ 2 Viet. ,:. I 10) the Statute i;{ K.lw. 1, c. Is, 
 was that uiiiler which iheereiUtfir iniule his del if - 
 Hi's laiiils iivailalile. NdW until he had .sued nut 
 ihi'i'legit, li,!i),i.ssc.ssedii(irij,'lil In them which li,' 
 ■ niilil eiifdicMii aCdurt i)f Law, and lheii'fi)re 
 i(|i!ily, accdidiiij; U> the niaxiiii, followed the 
 l.iw. 'I his rule of ('(iiiity is the j,'ovi'rninj,' piiii- 
 ipliMif I.,(ii(l Cottenhaiirs judgiiieiit in A', ft/ v. 
 Till l)iiL( of Marlhorowih, for in that case, 
 uiiiisel unavailiiigly urged that as the coin- 
 |il;iiiiaiit's oltject Was merely to reach e,|uital)le 
 
 lis, suing forth an elegit (which could not 
 illni iheiii, mill which it was admitted need nol 
 III' ivtiinied liy the Sherill), would have lieen 
 niilliiiig Imt a useless form ; i<iiii/(i«, suiitiiiir, 
 ■1,1' m. 15ut in this Province, registralion of 
 till' certificate comformalily to the Statute, 4 
 Uiliiria, of itself gives the creditor a specilic 
 li'ii ii|ioii all th,' ,lelitor's lands, and the right 
 iiiilicai:li as fraudulent any conviiyance of 
 
 o|,l road, and lay it oil to the owner as a coiii- 
 >>'" l{.\FliWAVS, .I, I"''"*'^''"!'- i" wholi'iir iiiparl, for the land taken 
 
 I for the alt, Mali "and the land of thi-old 
 
 road shall lieeonie the sole and alisoliite |irii|ii'i ly 
 
 the common law , "*' '''"' ""' *^""' '** Ix'l'L'liy vested in the |iersons 
 to whom it shall lie .so laid oil'." 
 
 /'ir IJIiss, ■!.— Here, then, again we have the 
 expression of v;iliiiiig Ihey are to put a value 
 on the old and lieyniid a doiilit, it is now used 
 for valuing the land itself, for that is thereupon 
 given iiji alisolntely to the party anil vested in 
 him. NVIiy should not the valuation [>ut upon 
 his laml hear the same moaning"? The Statute 
 exchanges tlu^m, jtays the land of the olil road 
 as the price of the new, and does it liy an .ihso- 
 lute transfer of the fnriiier. Docs not the whoh; 
 tran.saction clearly indicate a reciprocal trans- 
 fer'.' a giving and taking to the same extent? 
 What there is in tlu; language to limit it, or 
 «lial in ihe niasoii of tji,' thing, I ,iinfess my- 
 self iiiialilc to disi'ovel. 
 
 V' nvm. I (1,s;m ,c«j», s. 1. 
 
 11 VIof. (ISIS), c. »» 
 
 s 1 21 VUt. (1S«I), «•. SI. 
 
 li VI('t.(lSJJ»,c. 42 (KiiimiiijiSodoties) - 
 
 l!orrow,d from li \ 7 Wm. I, c. :{•_• (imperial). 
 Discussion of the two Ads. 
 
 Shujtir v. Ji)hii-</nii d a/., I Old., fitfJ. 
 
 11 Vl€t. (lS.il), 0. 17, ss. 14 ami U 
 
 (Act to incorporates the Nova Scotia Kleclric 
 Telcgralih ('oiiipany) - 
 
 /'n- I'di.ss, .1. |5y the I Uli .section of this Act, 
 
 ■u.li land which may stand in the way of his i full authority is given to this telegraph eomi)any 
 I'luiiiiiig .sat isfai'tion of his judgment. ' lociiti'r inloany lands, ami set oll'such jiartsof it 
 
 TLiiMighiiiit this Statute tin: legishitive inteii- ; as may lie deemed necessary for the lines of ti'Ic- 
 ■m til make the registered judgment an iiicum- | graiih.and to take any posts or liuihling materials 
 
 nece.s.sary to make or repair t lie lines, making the 
 owner due eompcnsation ihi'i'efor; and liy the 
 l."illi section, in ca.se of disagreement lietween the 
 company and the owner as to the value of any 
 land, |)osts or Imilding materials whiuli the 
 conipany may have taken for the purpose afore- 
 said, such di.sagrecsmcnt shall lit; .settled liy 
 arliitration. This language is certainly very 
 strong, and seems to me altogether imperative. 
 If we should construe the Act as permiissivc! only, 
 it would take away its whole force and effect, 
 and reduce the clause reiiuiring arliitration to a 
 dead letter. 
 
 MrKiir.i! V. ;I/,'AV(//, •JTlioin.,;{'2l. 
 
 i'liiiiLC similar to a morlgagi' is appai'ent. Sec- 
 
 'I'lis I and ;< more especially sustain this view. 
 
 Cnlilirill 1 1 III. V. Kiiisniini if itl., .lames, ,'i!),S. 
 
 I VU'l. (ISM), f. .W - 
 
 l.\il III incorporate the Town of Halifax)— 
 
 S" 27 Vicl. (1S«1), c. SI. 
 
 • Vlrt. (1S42), c. 8«- 
 
 il'uiiimissionerH authorized to make liargains 
 "iih pi'iipri,.t„rs, through wliosts lanihi th(> new 
 iiii' i>f mail shall run. I'rolhonotary to give 
 i-rtiticale u> the i)erson entitled to eompensa- 
 '"'11 fur the land taken from him for t\w use of 
 •lii's^iiil riiad — 
 
 ir» vin. (is,i2), f. i.'j 
 
 I I") Vict. (IS.Vi), ir. i;{, as amended l»y 10 Viet. 
 •S'l' 1 Win. 4 (1S;M), C. Oft, S. 1. ! (IM,-);{), e. '24, creates a corporation called "The 
 4(i 
 
139-) 
 
 STATUTES, NOVA S(X)TTA. 
 
 \m\ 
 
 (.'(•niiiiissioiuTs of llu' LiimUii: Asyliiiii," ic lake 1(( VU't. (IS.M), V. I, s. 200 - 
 
 a .•onvcyii.iK'.' of a mif iUi.l fivi'l a l-iiiiali.' " In (illra<, ■. in n'hirh an;/ r'ir'i<'ilii> mnnUr 
 
 Asvliiin <\l' 'I"!!"' ""' I i'/ii'i ""III III III rliiir ilii;/^. i\ /./•( 
 
 |{y •J4 Vict. (IS(il), c. 7, tlic j^'.'iu'ial iiiaiia>,'f- yrrilml lii/ Hiin m' luii/ nllur Ail i-iijiihiliiKj iln 
 iiuml of tim hospitaUvas vMnl in ill.' iloanl of I ,^;uli,; , or Inj 'hi villi s or /.rartin of llu Cn,;. 
 \\„..\.^ \lhi tami sliii'l In rirkonfl i.rrliiilrih/iij th jir^i 
 
 \\y:\n\ K. S., ..•. '-'I, H. 1, the liu'al til'*' "' ''"' i ''",'/ '""' im-liixirili/ of llu last ihiij, W<'." 
 hospital ai.'.l imun.i vstr-l in'tl.f Uoar.l of] /V H'.liss, J. -W.Tr it not fo, tl». i.tii, ••,lr;,r 
 Works, wlii.l. wa.s<'onslitul.Mlal.o.ly.(Ml.oratf. hlays" having Immi. intnulnr..,! ml., llw A. I, I 
 
 I'.y ;{(! Viil. (ISCT), c. 1, s. •_' : " Instcail of a ; wonlil liavf no ditlii'iilty. I ilo not sec Imw i, 
 Uoar.l of Works . . . ami Clii.'f Coniinissioucr j parly can lie .•nlitlcl to have a .••■rtaiii luiiiiK.i 
 
 ..f W. irks anil Mines," it Wiis .•na.l.'d that th.Mv 
 shoiil.l 1)1' "aConnnissi.incrof I'lil.lif W.U'kHaii.l 
 Mines," who sh.ml.l " perform lh>' iliiti.'s of i.lit 
 Iloanl of Woiks an.l Chii'f Coinniissioncr .if 
 Minus. " 
 
 r.y n Vii^l. (ISTS), o. II), a new .•.iriiorali.m, 
 oalle.l "The Conniiissioiier of I'lililie Works ami 
 Charities," was ereet.Ml, in whi.h the manage- 
 ineiit of the hospital was vesl.'il. 
 
 Kiurni 1/ 1 1 'il. V. Cmlnian ii nL, 
 
 () H. .<•(;., !»•-'. 
 
 10VIH. (18.M), C. "i, s. 10 
 
 When a Statute .lireets that eaeh party shall 
 choose an appraiser, ami tlie tw.i appraisers 
 shall sel.rt a thir.l, ami the three so appointe.l 
 shall (leteiniine the matter in (;.):itroversy, it is 
 a complianee witli the Stat lit.' if after a disagree- 
 nienl as to the matter in eontroversy, the two 
 select a thirtl. 
 
 /// ;■( Thomas Kinmj, ■J'i'h.iin., 14. 
 
 10 Vkt. (isr»:{), V. 1, s. 20 (New ITuctUc 
 
 Act)— 
 
 In appeal causes .Icfcntlant will he let in t.i 
 (lefen.l after judgment against him, umler this 
 secli.in. y,,y, .^. 7V„„„/„s, -i'l'lKini., '-'SS. 
 
 of days unless they he clear days. 
 
 Mush rs V. /'/(/»/((//,- Thiiiii 
 
 i'.'!l. 
 
 10 Vict. (1S.W), c. I, s. 40 
 
 " l(7«c< liii) iniinii ilifinilanis an joinid in an 
 iiHioii o/ronlrail, I hi iihiinlif shiill In iil lihirty 
 lo rerorir aijaiiisl snrh di/imliini or ilifiniliinls as 
 a)>i>iar lo In liahli , nnil llu olhir dij'i nilanl'<shnll 
 In' wiinilliil n-ilh lib'- provixiom raxini-limj m/o//; 
 and iridinri as in I hi: msf of loo mani/ /i/ainlifs, 
 and Ihi di/illdunls so aiqnillid shall In inlillid 
 lo Ihcir costs. " 
 
 Necessaries supplied to a vessel tilting for sea 
 on the order of <ine of several i)art owners, 
 
 //lid,, that the other .twnei's ate lialile, unless 
 they show that an (exclusive credit was given to 
 the part owner ordering the goods. 
 
 Action against s.^ven defen.lants as j)art own- 
 era. V'er.lict against two oidy sustained under 
 I'raet. Act, .s. 40, the evidence of ownership of 
 the remaining .h'fendanis lieing insnltieient to 
 satisfy the jury. 
 
 Colli) V. Tnriur tl al., ,]iinwa, X\2. 
 
 lOVUt. (I8.W),<'. I- 
 
 s STATUTES, IMPKKUI,, 
 n i: IS Vict. c. 12.-1, ss. s.'i and si;. 
 
 10 Vict. (tS.M), c. 12, s. 10 
 
 " 'J'hi rosis of I'll /irin'i I dinijs mi rilalion In mi- 
 ill r anaironni ihiill nol In alloinil lujaiiisl Ih in- 
 i-iilor Of (ulmiiiislralor, iiidiss Ihi /larli/, ui n-lin" 
 inslnnrf swh iirorndimjs shall han Imii Iml, 
 shall frsi han ijii'cv l<ii days' iioliir lo swh ire 
 nilor or (idministralor ruiiiirimi him in mnlir 
 siirh iirronnl," 
 
 Where in the absence of such notice llic.lihlL'f 
 of Tniliate ordered the administrator t.i pay 
 costs, the order was wet aside anil the tnst- 
 ordere.l to he paid .)iit of the estate. 
 
 /;( re Esliilr of llalston, '2 'I'limii., Ilt.'i. 
 
 10 Vict. (1S"»;J), c. 17 {Kivcr Kislierics AcD 
 
 I Appeals under uuist he made to llie Sessimis. 
 Uowjh V. Morion, 2 Tl i.. Iii 
 
 l«Vicl.{lH-|3),c. 24- 
 
 (( 'ommissioners f.unatic Asylum) — 
 
 s'm l.ivict. (is:.2i,f.ll 
 
 1« Vict. (ls.->:5), c. iw 
 
 Sr, 2IVict. (IS«li,O.Sl. 
 
 10 Vict. (1S5:{), c. m, s. I 
 
 ''All Ihi jioinrs mill, dnliis noir In hi iw'i 
 irnrisril. hi/ Commissioiii'rs o/Slnils, or irlii'i 
 mail hiri'iijhr Inj anij Ian- In ronfirnil on ««''' 
 Commissioiiirtorolhir lib ojlinrs in llu -no"' 
 loinis of this rroriiur, shall In hild ami if iri-'l 
 in flu Cily of Halifax, hy swh sni„ri\,i<ii'\"''- 
 n-ho shall III rirlhiliss xirris,. Ihi saim >»/;/•'"" 
 any ordir of Ihi- Cily Counril." 
 
 This section transfers the powers ami iliUi'- 
 hel.l and exercise.l liy C.nnmi.ssioners of Slmi> 
 
 to such superintundenla, wh evert ImI.*".;'!"' 
 
 to exercise the sanus sul.je.;t to any imiUt of li"' 
 City Council ; aiul upon reftren.:.' to llii'il'i'"'* 
 of C^omuiissioncrs .)f Streets, as presciibiil i'V 
 
;{!)7 
 
 S'I'ATIJTKS, NUVA S(J0T1A. 
 
 i;ws 
 
 l.iw, we liinl llicir duty is Ik icninvi! all iiiciiiii ^(iniii tin iiiirl.iis.iinnuil rmiri iiii nll'i In ruinnl 
 liiMiMcs ii|Miii III!' .sliccis, |ii('viiil 4iiiiinii'liiiu'lil.s ' iiiiil I'lil ill iKsiir III/ llif II IIII iiihiii III ff'llii /I/I rittit.' 
 lliciiMii as ni|iiir('(|, ilr, etc; with |iii\vcf in iilniiliiHis ; mnl niufi (In i; is iin ri liliriilinii. 
 illailicasi'M tn ;,'raill lifniiis.sioii to |)cis.m.H {II [till iiliiiiilillslin'l 1,1 Inliiii, to hilCi' jnilK il IkkiIi 
 |il,i.r ill the Hli'cuU liiiiU.'riiilH for Imililin^'s, tic ; ,,» lln ih fi inlnid's iilms." 
 
 ■,iil.ii'.'l of coiil-Hi', to tlu'onU'i'of Iho City ('onn I Wluii the |ilaiiiliir in icpliA in |.iimcc.Is to 
 ■il. Here, tliiMi, we liavu the Sii|k rink'iiii.nl I iii.ii witlioiil pleading,' to lliu avowry or in^ni- 
 
 1 /anctMil (U'fi'iiclanl, it is a niin-lrial, an avowry 
 or I'M^'iii/.aiici' not licin^' a plra williin tin; incan- 
 iiij,' of sci'iioii •_'!.'! of the I'railici' Ai'l. 
 
 Sk-iiiiiii' V. t'liiib '/(//,,•_• 'I'lioin., IS'l. 
 
 IM VUt. (IS.W), C. », s. 2« If .ilh K. S., »•. 
 
 107, s. 13 
 
 'I'lii! siiliscriliiiiK witness to a cIlimI mcd not lie 
 liiodiiCL'd if the liandwritiiiLjof tlif parly inakin;,' 
 the instriiinunl can lie ollu'rwisc proxid. 
 
 IVooilx V. /'/•(/«/•,•_> 'I'ljoiri., I,S4. 
 
 IH VId. (lH.|-», c. .»;{, s. IS (1. nil K. s., 
 
 c. 94, H. 35G 
 
 (Assii^nnu'iit of clioscs in action) — 
 
 The Slututi; never intended to take away the 
 
 riijht of the assignor to siic witli tiie consent of 
 
 the assij;nee. 
 
 llWs/i V. /A/;7, •_• Thoni., |(K». 
 
 Tile notice under the Act must s|iecify the 
 exact interest of the iissijjiiee under the assijjn- 
 iiieiit. 
 
 ll'iii-il V. MiDonnlil, -1 'Ihoni., 4l'L'. 
 
 1!» VUt. (iS.iO), c. '20 
 
 ("oiisolidated in .'ird !!. S., c. 4.*!, c|. v. 
 
 'i)>Vid. (1S5J), c. i;{ 
 
 (Assessment of Railway daina;,'es) — 
 
 Wliere a jury on appeal from appraisement of 
 
 damages under this Act assessed damages on a 
 
 wrong prineiple, 
 
 III III, that the ("oiirt had pownr to set aside 
 
 their vi'rdiet. 
 
 FiHi ill/ V, Coinilj/ of lliili/iix, "JThoin., 4 1 "J. 
 
 21 Vid. (ISOI, f. I, s. 12 
 
 ■' W'hil'i II ilij'i liiliilU ilihliih In sit ilji 
 fruilil lis II ilifriirr, nr ii iihiiii/ill' In n lij iijiiin 
 friniil. ill iiHSiri f tn till jiliii nf tin ilrfi'iiiliint . 
 
 it must I If /ili'iiili'if." 
 
 This section extended the ]»rovisions of the 
 IVactice Act, 'Jiid H.. S., c. I.S4. s. 74. 
 
 MHIrii/or V. I'liltirsoii, I ()ld.,LMI. 
 
 H Vid. (ISOI), c. .1 (imis orsnic) 
 •S' ' STATUTES, I.MrKKIAL, 18 ii 1» Vict. C. 3U. 
 
 21 VId. (18«l),c. 7 
 
 (Managuiiiciil uf HospiUiI veMted in lioard of 
 -.vorks)- .s',. 15 VId. (1852), c. 13. 
 
 u| Streets not only anthori/ed to remove all 
 iiiriiinliraiices llieri^froin, hut his particular duty 
 ^ IH cause iiieiiinhnineeM to he removed ; and for 
 iiiy nc,i;lecl or injury that may arise to a party 
 imipi a failure on his part in the iK'rformance of 
 liis iliil ies, redress niiiy properly lie had from liiiii ; 
 I'.il how the defendants can lie made lialile for 
 .1 111 each of duty on his part, I am at a loss to 
 I'liiiccive. 
 
 I'Jnii.s V. Thi.Citi/ii///iili/n.i-, I Old., III. 
 
 Iti VId. il.sri:{i, c. (Mi liuoriHtrnlion of 
 
 Kinji's College, Windsor DismiH.sal of pro- 
 
 le.ssor - 
 
 A'l ll'//s.)», (i K. ,'t (;., ISO. 
 
 KVId. (1S5I), ♦■• I 
 
 ("iisolidated in .'{id K. S., c. 7<>, i|. v. 
 
 I« VId. (1851), ('. I{>, IS.S. 2 UIKl 3 
 
 S. I. ■• .\liilis mini tiilr. Iiiilil. riiiiviij. mnl 
 tr'tiisiiiit ri III isliiti ." 
 
 . ■_'. " \'ii titli In mil I stuli slinll III iiiniliil 
 Mil iirriiinit I if till' iiliniililr nf ii ml fni'iili I' mi'lii r 
 
 ■ hnlili r tlnri'iif." 
 
 S. ;!. ■• Xntltiini ill this .[•( sinill Imri tin 
 ■ ihi'l nf I'liiijiriaiinj nr rrinliriiiii rnliil tin titli 
 •n-liiiiii nfiiiiij iilirii iiiiin iiiviilid iiv iiiriiiiiilili 
 •I Iniini nifniTi'il mi iirviinul nf ulii limji ." 
 
 I'll- Sir Will. Young, C. J. — I would have no 
 litliciilly in holding that the plaiiitill's, though 
 iliciis, and not coming within 17 \'icl. (IS,">4), 
 III, s. ;{, ccmld have inaintained ejectment. 
 i |«iii principle, il would seem that so long as a 
 -nlliiiciit estate remains vested in the alien, 
 ji;h/i/(( iiriiliii, until otiiee found, he may niain- 
 Miii ejectment. .J fortiori, he may niainlain it 
 ■iimiiri. droit, nn executor, adininistrator, liead 
 'liii corporation, or the like. 
 
 ll'illiams It id. V. Mj/irx, •_' N. S. I)., Mil. 
 
 IH Vid. (1855), e. 4, s. 243 - 
 
 ■ Till rr sliiill hr nil fitrtlnr itlindiinjs iifti r 
 '" iiliii nf tlir di'J'i'iiditnt, ijrijil n, diiiinrrrr 
 ■'"ii(ii. or a rijdirfttiiiii to a plm nf si'l-nff, nr 
 r'"' ",/' tiiuttrr nrriirriinj snhsriiniiiUij tn tin 
 ''•nmi' iifi'mnU nf thr nclinii. iiiihss Inj tin- 
 V'iid li-nvi'. nf till' Cniirl nr a •liuhjv, nr nn 
 'fiMi'iitinii In itlliiw surh fiirtlnr jdiiidiiiii, 
 'Mill sliidl null/ III' nllnwid in rusr tin: rial ijitcs- 
 '''J" or ijueslioHs, wlitllur nf fact or bun, be- 
 
i;jui) 
 
 STATUTES, NOVA SCOTIA. 
 
 1 10(1 
 
 21 vii-t. (isnii, c. :u> 
 
 MVId. 0Mi'2),«'. i 
 
 'I'lic ilircilms (if ii iiim|)iuiy incniiMiiitiil iiiiilir 
 Acts of iSCi'J, I'liiiplcr •_' (Ki'V. Stilts., ."iiil series, 
 T.'iO), iiititiiled " .\ii .\et f(pi' <.!it' ine(>iiiiiriilii>ii 
 iiihl \viiiilin;{-iip iif ji>iiit stock coiii|iaiiies," Inive 
 |iowel' to iiioi'tj,'Hf,'c the propeity of tlii' compuny 
 to (liseliiilj^e olili^ations fi:r wliicli tlie sliait- 
 Iiolili'is HIT liiilile, and would loiil iiiiie lialile in 
 tlieir own persons, if there were no niortj,'a,L;i'. 
 The power to liorrow money implies the power 
 to inortga;,'e. In making calls npor coiitrihn- 
 toiies, s\iniinonses will he granted liy a ilmlge to 
 the several parties ic(|uiring the amounts for 
 which they are lialde lolie paid within aspi'cilied 
 time, without costs, unless resisted. 
 Ill re Xtuli Brick A: I'olhry Atduiijhrluriini Co., 
 
 'A N. S. I)., •_'.-)4. 
 
 W Vict, ami), t. 7 (Bills otSale) 
 >M STATI'TKS,IMI'KKI.\1,1S A; l»Vld. V.M. 
 
 '_»■} VIcl. (18«*i), t. ;n, s. 11 IT. 21 Viet. 
 
 (1864), c. 81, K. 655 - 
 
 ■•'/'III ('ill/ ('iiiiliril iiiiiij ih'rnl. Iiilililiinis 
 ilii mill iiiiisiiiin s ili'ili r tln''< .1''/, »//</// iiin.sH- 
 iliiliiiH III' llii- flirts mill I'lilii'irliiiii nf tin nn'inrx 
 iir hiiililirn hifnrr II .Iniliji nf tin Siipn nir 
 ('iiiirt. Ill lir i>iillid (liiKH," tki:. 
 
 The alliclavit upon wliicli the application 
 \inder this section to i du<lgc was madu, was 
 helil to have licen rightly sworn liefore a Com- 
 missioner. 
 
 Vm il,iLli<A.\, CITY OF, 7. 
 
 Till City 1)/ //n/ij'ii.i: V. MrLmni, I 01d.,()!(fS. 
 
 •-'« vii'i. (iww), f. n, N. «- 
 
 •• Airiiitiils uliiliil slniU In inrlinlnl iiiaiiinj 
 .\ii-iiriliis iiniilr riiid lnj 'Jinl JliiK Sluts., r. 'J'J, 
 mi. 16." 
 
 This lilies not extend to actions commenced 
 
 before its passage. 
 
 Sniltli V. MiXiil, '.'Old,, -:■>. 
 
 'iOVU'l. (ISIW), f. 8», s. 7 - 
 
 (Act of liieorponition of .Street Railway Com 
 pany) — 
 
 ■' 'I'lir jiituriui'lll iir iillnr Slirfiin- nf llir riiitd- 
 
 ii'Kij is tn III' kijii iilifin/s in lliiiminjh riimir l»j 
 llir riiiniiiiii'l ii'iihiii tlir lrni:k. mnl tli m-feH nn 
 iiirli. siile thi'rciif." 
 
 I\r Young, C. J.— What is the meaning of 
 thorough repair V The defendant's counsel say 
 it has nothing to do with the rails,— that if the 
 track within them, which the horses travel, and 
 three feet on each side of it, be in perfeet order, 
 
 the rails themselves may protrude to ,iny i \Uiii 
 without violating the charlei-. In other umils, 
 they may lie in such condition as to ntnlii .i 
 passage across them lia/ardous or impossiliii , uhI 
 if a carriage attempts it and is iliiniii;:ii| (.i 
 liroken, thi're is no liahilily on the part nl tin 
 eom]iany, and no rediess to the owner. Siirli ,( 
 construction appears to me to involve a |Hifiii 
 absurdity, and looking to the olijects and .■mu|ii 
 of the Act, and reading the three seetimi- 
 together, as we ought to read them, 1 have imi 
 a doubt that the company are bound to k(i|i .il 
 all times their rail«, iis they weie laid, level wiih 
 the sui'face of the street, so that carriage.^ ciiii 
 safi^ly and snuiolhly pass over theiii. 
 
 I'liiiliiii ' I III. V. Till Ciiy I'ailroail Co., 
 
 •_• N. S. 1)., •Jill). 
 
 /'((• .lohnstime, K. J.— The authority kivim 
 to the City Council to supervise and direct tin 
 repaiis of the horse railway is but directciry, 
 and confers no |niwer to alter or mmlify tin 
 law. Its plain intention is but to sec lli.il 
 the law is carried out, and were the lily 
 Council or its ollicers to .sanction a prnjcclidii 
 of rails above the level of the street, the law 
 wcudd be paramount, ami the raihoad cinii 
 pany would, I think, find that the act nf lln 
 City Council adbrdcil it no ju'iitection agiiiiL-i 
 the claims of those who siill'ered in consec|iiciiiT 
 of this deviatimi from the obligation.s liny 
 assumed when they accepted their cliaitei'. 
 Coition I.I III. V. Tilt CiliJ h'uihiKiil t'n., 
 
 •JN. S. l).,'.'li'.i 
 
 27 VId. (ts«l), c. SI llalirax Cllj liiarliT 
 
 City Ordinance 4 provides that lines or lun.il 
 ties may be enfoiced in the I'olice Conn iit llit 
 prosecution of any per.son whomsoever. Tlii-'ilnt- 
 not autlioi'i/.e the prosecutor to bring a .Miit in 
 his own name, as jilaiiititr, as the former iiiiil "f 
 the ordinance does, where it provides foriiclinii 
 in the City Court for the same subject, to liuiit 
 the suit of the City. Ordinance •_»!) directs lliai 
 prosecutions for the jienalties thereunilcr .shall 
 be in the name of the City, at the I'olice ('"ini. 
 before the Stipendiary Magistrate. This ini.^liii 
 mean either the I'olice Court or the City t'oiirl. 
 Ill tit, idlni rirc-t the City Council. 
 
 The City of Hid'ifax v. O'Cunnw, 
 
 311. &(l.,il»' 
 
 (History of the eimctinents relative t" ll" 
 streets of Halifax, from which the lialiilily "' 
 the City for injuries caused by obstnictimis- 
 itc, ill the streets, is deduced) — 
 
 I'l.r Thompson, J., delivering the jmlginciH 
 of the (^ourt, — 
 
1401 
 
 STATUTKS, NOVA SCOTIA. 
 
 1402 
 
 ( 'liiilitti ."» of the Ai'lN III ISdl, Mas Mil All fill 
 K |i,iii'iii;;, kr('|iiM;{ in i'('|i.'iii', I'li'.uiiii;^ ami |iaviii'; 
 llir ilrii'ls ill iIk' 'I'liw II ami I'ciiiii.-^ulii nf lf,iiifa\, 
 ill-., I'll'. (I'Ik: 'I'liwii ami I'l'iiiiiNul.i liiiMi; llic 
 ,nva iif I 111' iiicKi'iil ( 'ily.) 
 
 il I'liai'ti'il Ihal I'crlaiii |H I'siiiis lluifiii iiaiiu'il 
 >liinilil 111' " CiiiiiiiiiNsiiimi', fur llu! ii|iiiiiiii^', 
 piviii^' ami kci'iiiii;^ in rc|ia;i', llu- slircls, lanes 
 iiiil alleys in tliu 'I'liwii ainl nii the I'l'iiinsiila of 
 liiilifaN, 1111(1 f<ir asccitainiiiH anil iciiHivinj,' 
 iilistiiu'tiiiiiK therein. " 'I'hese ( 'iiiiiiiii.ssiniier.s 
 «(ie alllliiirizeil to leeeive .siuli inoiieys ami pel- 
 fiiiiii .siiuh hi^^liway wink aw the inliiiliilaiits 
 wire, miller fi)riiier law.s, or liy that Aet, (iliii^'eil 
 111 |iay iir fiiniish "fur the iiieiiiliii;,' or repair 
 ill;; (if streets, lanes, roads or liigliways." They 
 Hire investeil with all the powers, within the 
 I'liiiiisiila, of the .Surveyor of IliLtiiways, whose 
 ciliiees and (lilt ies were similar to those of such 
 nllicers ill the eouiitry distriels ; they had various 
 iillier powers ooiiferred on them to enalile them 
 III carry out their work, iiiid had authority to 
 ixpi'iid on the sirei'ts oiiethird of the money 
 lU'isiiii,' from tlie duty colieeted on lieeii.siMl 
 liiiiises, etc., on the reiiiiisula. Noliee of aiiioii 
 liiiil to he j^iveii them liefore suit. I>y eiiaplei- 
 II uf 1S((!), all the inlialiilants were expressly 
 iviliiired to keep the f^uttiifs and streets in front 
 iif their prcniiises free from nuisance of every 
 kind. Hy eliapter .'{ of I.S'.'ti, these two Acts 
 were consolidated and iin])roved. The C-'oiii- 
 iiiissioiiers were continued in ollice, their juris- 
 liji'tidii was extended and their funds inereasi'd. 
 I'hi' provisions oliligiiii^ the inlialiilants to keep 
 llic streets free from iiui.saiiees were re-eiiiicted, 
 iml tlie f(dlowinj,' new enaetiiient was made : — 
 "It shall . . . he lawful for the (*om- 
 iiiissiniiers to order . . . the iiilialiitaiits 
 . . as often as they diall deem necessary 
 luriii;.' the winter to work on thepiililic highways 
 witli their horses, oxen and sleds, in order that 
 till' Iliads may be made pas.sal lie, . jirovided 
 
 iiiiiiiliahitant sliall be reiiuirod to furnish more 
 lluiii line day's labor of himself and cattle for 
 my line fall of snow, or to work in any case 
 wli.'ic a fall or drift of snow shall not exceed 
 Uwlve inches." C'liaiiler !) of IS.'t'J, gave tlie.se 
 I'liniiiissioners borrowing jiowers. In IS4I the 
 lily was incorporated by chapter .Vi of the Acts 
 'if tiiat year, and section 07 of the Aet gave to 
 till: Mayor and Aldermen and Council the ex- 
 clusive power to regulate tin; rejiairs, etc., of the 
 struct s, and to appoint Coiniiii.ssioner.s of Streets 
 '"I- the City, and it was provided that the Com- 
 'iiissidiicrs .so to be ajipoiiited should have all the 
 mtliority conferred on the Comniissioiiers by the 
 •Vets before referred to. Authority was also 
 jiven to assess for repairs of streets. Coiisolida- 
 "011 Acts followed in 1848 and 184!), but these 
 
 pro\ isions Were conliniied. In Is.'il there w.ih 
 .inotlier ( 'oiisolidatioii ,\ct, but il did not alter 
 the piiivi>-iiiiis last I'liiimcriiteil. Chapter ,'tlt 
 of Is.'i.'l provided that there should annually 
 be chosen a Snpd inicinlcnt or .Superintend- 
 ents of Streets, whose duly it should be, 
 under the diiccliiui and control of the City 
 Cmiinil, to siipi'i intend the general stale of 
 the streets within the whole Cily, and to 
 " attend to the , . . repairs of I he same . . . 
 and to give notice to the Mayor or City N!aishal 
 of any miis.iiice therein." .\ll the powers and 
 duties of the Comnii.ssiiiiiers of .Streets Were 
 Ir.ilisferred to the new otlicers, subjci'l to the 
 aforesaid direction and cuntrol. Chapter .'(!• of 
 I.SOI enacted that all sums rei|iiireil for the 
 street services should be borne by and taken 
 from the giMieral revenues of the City ; it placed 
 the streets and expenditures thereon under the 
 control of the .Street Coiiiiiiittee, who should 
 havi' the direction of the Superintendent of 
 .Streets ; and it also gavi^ to a coinmittee of 
 three alderiiieii, "tolie called the Internal nealth 
 Comniittee," the duty of attending to sweeping, 
 cleaning and watering the streets of the City, 
 clearing away snow, and other like duties. 
 
 Clia]iter SI, of I.StU, was the last Consolida- 
 tion .\ct. Sections •_'(i4 and •J(i.") provide that 
 the City Council or llieir coniiiiiltee shall " ru- 
 niovc all inciimbraiices on the streets . 
 and cause to be observed the laws touching 
 streets and bridges, or the work to be performed 
 thereon, and shall cause the streets ... to 
 be cleaned, repaired, »S:e., as they may deem 
 projier." The early eiiactiiiciit.-<, obliging the 
 inhabitants to kee|, the streets before their 
 properties free from nuisances, were re-enacted, 
 and tlie Committee of Streets was armed with 
 jiower to eoinjiel their .ib.servanee. The autho- 
 rity of Surveyors of Iligliways was given to the 
 City (.'oiiiicil, and the ]ir(ivisions of the Act of 
 Is.").'}, ill vefereiice to the Superintendent of 
 .Streets, were substantially re-enacted, as als.i 
 those of the Act of IHIil, in reference to the 
 Ciimmittees of Streets and of Internal Health. 
 I>y chapter ,'{4 of IS""-', all business connected 
 with "the making and repairing of the streets 
 and street expenditure . . . and all duties 
 connected with . . . clearing away snow 
 and other like duties," were jilaced under the 
 control :)f the Hoard of Coinmissioners of City 
 Works, as established by that Aet, consisting 
 of si.x Aldermen ; and it was declared by sec- 
 tion ',i to lie the duty of such Coiiiiiiissioiiers to 
 do all tilings which sliotild be necessary, con- 
 nected witii (among other things) the street ser- 
 vice. The Conimissioiiers were given power to 
 apiioint all necessary otlicers, and were clothed 
 with all the powers and authority of the former 
 
14(K{ 
 
 STATUTKS. NOVA SCOTIA. 
 
 K)t 
 
 ( '>iliiliill Ill's lit Sli'i'i'l.s illiil lit hili'l'lHil llriillll. 
 liy Hirtinii S nf iliiiptlT .'«>, ill' IST", llli' Cil.V 
 Ciilllliil WrIC aililNlill alt! nlilijinl In srl il^il|l•, 
 fill' till' si'ivii'r nf mIiti'Im, a sum lint li's.stliaii 
 !*'_'■">, (KH( aiiiiiially, ami this i.i iiiailr a tiiMl clmi'j^c 
 on tin: City ii'vcmir. 
 
 'rinsi! cniii'lnii'lilM may llirn lie siiiiimaii/i'il an 
 fnlliiws; 'I'hi' AetK nf ISOj, ISd'l, IS'.'tS, ami 
 IS.'fJ, I'KialiliMlicil a linanl nf ( 'nminissiniicis, 
 wIliiMC illlly il was, amnll.l,'s| nllirr- lllili;,'S, In 
 
 krrp the slii'fts nf till' I'liiinsiila in li'|iair, nilt 1 „,(),(,. „/' ij,, Ctlil," 
 
 'il vici.dsni), 4-. si,s. lOK 
 
 ■■ /■'hiiK nil/. I .in I iliiHi liiihhi iliilhn-.y inf nm 
 ill)'rllfi mill jillllinllllli III ill llli jilil nf rihi 
 /irLliill fur II 1 1 I'm lliil i.ii'l I ilillij lliinhi ihni.t, 
 
 iiniij III miiii.iiil III till lifiiiili iifuiiii till, -I, III- 
 /)//.y.s((/ /// iirnirilniir ii'illi /Ilin I'lnijih r, nc ,,( 
 iillillnii' iiilUliiri.:i il liil mil/ jil'i XI III nr I'lilm-i hm- 
 nf lliix I'l'iiriiir' ; mill nil iiiiimis nr yio/Mc//- 
 liiiiis ill irliii'li llii Cilij III' iiini 11/ ilsili iHifliiii III.-. 
 Is III' ni'r I'lilii'i I'liiil. xlinll III I'liiitiiii iin il In lln 
 
 nf fnnils whiili ucri' llirriOiy |)in\ iiliil fur llnin. 
 Till! Iinriliii nf kri'pin;; tlic sticrts fici' finni 
 nnisaiii'i's was fxpri'ssly iiii|insi'il iipnii tlic iii- 
 li.iliitiints, with particular icfiTcriri! tn |lu' niak- 
 in;; nf lii),'liways jiassalik' afti'f snnw ilrifts. 
 The All nf IH4I tnalili'il the City Cmincil nf the 
 City, tlii'ii iiu'iirpnialfi], tn ajipnint thu Cnni- 
 inisHinncrs. Thr Act nf ISo.'J liansfci'iTil the 
 piiwi'is ami ilutii's nf thu CnMliliis,sinm.'l'.s In thi' 
 City Cnuni'il ami tn their Supdi'inti.'iiiU'ntK. 
 Till' Act nf IStil niailc the streets expressly 
 eliai\i,'ealile tn the ( 'ily revenues generally, ami 
 transferrtMl all jinwers tn Cnnunitlues of Streets 
 mill nf Iiitei'iiiil Health, with special referenet! 
 iijjtaiii to the clearing' away nf snnw, Sic, The 
 Act nf \Si\l a;,'ain impnseil ex|)licitly nii the City 
 the iluty of eloaninj,' anil rejiairinj,' the stri^ets, 
 ami re-eiiaotc'il the cIiiuhc of IS(li), with refer- 
 ence In the iluty nf the inhaliitant«. The Act 
 nf i.S"'-' transferreil the powers ami ilulies of 
 the Cnniinittees nf Stria'ts ami Inli^riial Health 
 to the CnMiniissinnels nf Wnrks, W lln shnulil 
 "ill) all that ini;j;ht lie necesHary in I'niinectinn 
 with the Klreet sci'viee." The Act nf IS77 niaili! 
 8'J.">,<HH) a year for streets a first cliai;,'e on the 
 City r<!vcinie.s. 
 
 These refeiences ap|>car to show that, hefore 
 the incorpnratinn nf Halifax, tliere resleil nn 
 the iiihaliitantu the nhli^alinn to keep the 
 streets free frnni iniisances, anil tn clear away 
 the snnw whieli niiu'lit fnrni an incnnihrance, ami 
 tofiirni.sh lalmraml money to the Connnissioners 
 of Stre(!ts, who were charj;eil with the iluty of 
 seein;^ these oldigations perfoimtMl, ami nf mak- 
 inj,' all uecessaiy repairs on the streets ; they 
 appear to show likewisi!, that while the olilij^a- 
 tions (after the incorporation of the City), were 
 kept virtually intact, the powers nf enfnreinj,' 
 till!!!!, the ilnty nf seeiny them carrieil out, anil 
 the mciUiH nf suppleinentiii<^ them by lahor anil 
 niniiey were yiven to the City Council anil its 
 otlicei's, who were conimamleil to iln all neces- 
 sary repairs, jirevent nuisances, clear away snow, 
 etc., etc., in the highways of the City. 
 
 IVa/kw V. The Cilij of I/aliJhx, 
 
 4 11. &(!.,.S7I, 
 Set HALIFAX, CITY OF, 19. 
 
 The liyelaw a;,'ainst .Sumlay Irailin;,' piiniijul 
 fur III inipi'isnnment nf three mnnlhs, 
 
 //'/'/, iillrii rh'1.1 the Cily Cnumil, auil a cnii 
 viclinn Ihereiimler ipiasheil accnrilini^ly. 
 
 77(1 (,'//(/ nf llall/nx v. Cliisn,, ti I!. .V C, ,VJI 
 
 27 Viet. (IMIii, f. Kl,ss. 1:{»-II» 
 
 These sectinus refer tn " Ciiminal ami I'l ii.il 
 I'rosucntions."' 
 
 S. I.'l.'l prnviilcs "that the .Mayor, or mie nf 
 the Ali'.erineii, in rntalinn, shall ilaily alliinl ;il 
 the pulilic ollice for that purpose appniiilnl. 
 anil constantly lietween the hours of ten n'l linl> 
 in the forenoon anil three o'clock in tiic aftir 
 noon, shall ])erfnrm every act appcrlaiiiiiiu In 
 the ntliec nf .Justice of the Peace, necessary |ni 
 the a])|>rehension, cnniinittal, cnnvictiiiu, ami 
 punishment nf criminal nll'eiiilers, ami fur cany 
 ing iiitn cll'ect the laws in fnrce ami tlic mill 
 nances ami hye-laws nf tiie City, as set fnrtli in 
 the fniegning sectinn." The latter wnnls, " ii- 
 set forth in the foiegoing section," are meaning' 
 less, as tile sectinn I'cferieil tn niily prnvidis ,i 
 limitatinn within which prnsecutimis in the City 
 Cniirt, at its criminal sittings, shall he c(i;;iiiza- 
 lile. This Cnurt of the Maynr or Alileriniii i- 
 afterwarils referieil tn as the " I'niice Cmiil' in 
 .sections l.Sit, 14.'{, l.")0 ami otheis, ami also in 
 section .') of chapter H7 of the Acts of ISIuwIiiit 
 its jurisiliction is further iletineil. l>y chapter 
 S'2 of the Acts of 1S()7, as ainemlcil liy clMptir 
 37 of the Acts of 1.S70, the appointment nf * 
 .Stipemliary Magistrate is j)roviileil for, wii" 
 hesiiles having In cnnilucl the liusiness nf llii 
 City Cnurt, has to perfnrm all the iluties ami 
 functions which hefore hail lieeii |)erfiiiiiii'il liy 
 the .Mayor anil Alilernieu in the ailministiiitinM 
 of the Police Court. While the Act nf I«i4 
 empowers the City Court to make orilcr.s ami 
 regulation respecting the practice therein, aiiii 
 to presciihe ami atlopt forms of writs ami pr"' 
 ceeilings for cnniluctiiig the civil ami crini 
 inal liiisiness nf that Court (.see. I.'(l), iin'l 
 lixes the fees payable in criminal cases in iImI 
 Court (sec. 141), no jn'ovision whatevei is maili 
 in relation to the proceiliire ami forms I" '"^ 
 {olloweil in the Police Court, in any section of 
 
140;-) 
 
 STATHTKS, NOVA SCJOTIA. 
 
 140() 
 
 till All III itH IIIIU'IhIiIICIIIm, I'\CC||I illllll' CllHC 
 
 lit |ii'iisr(MitiiiiiM fur |u'ii,'iliii's lor violating tlic 
 Ihiiisc law (hccm. 'JIN anil L'MI) ; ami a clause 
 II i|iiii ili|; lliat a liiiok sliall lie Ucpt in wliicli 
 riiiiiiiial cliai'^t's iiiiulc al (lie iitlict' ai'f tii lie en 
 in III, ami (•citaiii ;,'fin'ial riiiU'lincntM in iflrr 
 ili'i' III I lie isHiif lit' waiiiiiilH ami priircMH nt 
 -iiiiiiiiiiiin IIP aiicsl, ami |ii(i\ iilin^^ liclurc wlinin 
 ,illjila\ its arc 111 lie MUiHii, (seen, I I.'! uml III.) 
 All aeliiiii was liiiuiglit ai,'aiiisl I lie ilcfcmlaiil 
 
 '2i Vict. (Isni), ('. SI, HM. mt and 2(11 
 
 /'< )■ Sir Will, ^■llllll;,', (', .1, 'I'licsc .Mciliiiii.s are 
 eerlaiiily of a iiiiihI amiliialiilis iliaraclei . Three 
 eiiiii|ietciil |icrsiiii.x, rml licinj^ iiitcrcsieil in ihe 
 mail 1(1 lie laid mil m iiii|ini\cil, are In lie 
 il|ilniillteil liy Ihe Cily ( 'nlllicil, wliii ale In 
 a|i|iriii.Me Ihe iliiiiia^'CM In lie jiaiil In limse w hn.se 
 laiiils may lie taken ii|i, nr ulm.se liiiililiii|;,s may 
 lie reninveil nr ile.sl rnyeil ill w linle nr ill pari Inl 
 Ihe iiiiprnveineiil nf any street, si|iiare, lane nr 
 
 III the I'lillee ( niirt at the suit nt I le (itv nf ,.,,| i: . ■• ,■ „,, , 
 
 ,, ,., ,. II , . , . . '. , l"il'l"' pi'f'NiW. liy seel inn •_'(»!, the appraiser.^ 
 
 Ilihtax, tnr an alle^,'ei| vinlatinii nt a ( itv ,„.i i- ■ i . i \ , „ 
 
 ,. .... •' IMli'i are mil even ilireeleil In he .swniii) shall 
 
 "iiiinaliee in keepill;,' a iiiarilie ami llllik stnre ,„.,:?,, ,i„. ,..,,.,; ^ , , , ,, 
 
 , , ,. ... , ,. . iintit^ the parlies interested, ami hear them il 
 
 wilhiiiit lieen.st! theretni', ami alter trial I le I ,., :,., i. ,,. i.i ., ■ , , 
 
 . ' ; H'Mlllleil ; ami the aiiraiseliielit liilli'' iiiaile liy 
 
 ■ lileiitlant waH cdiiviutL'd nt keeniiiL' a raL' aiiil I ii. ,i.. . . .• , 
 
 I 1^ h "•' tile three iippraisers, nr any I wn nt Ihelil, llnl lee 
 
 sliall he yiveii tn eai'li per.snii \\ Im.se land is 
 taken, nr w linse Iniildin^'s are In he reiimved in 
 whnle nr ill part, nr In his agent, ten days al 
 least lii'fnre the nu'elingnf Cninieil at uliieli il 
 is In he eniilirined, The Cnlineil shall ;;ive any 
 party nlijeetiiig tnlhe appiMisi'inent an npimi- 
 liinily nf heinj,' lieanl and prnvini,' hisnlijeetiniis 
 liy lestininiiy. If Ihe expenses and damages 
 appear tn the Cniineil exeessi\c, when eniiipared 
 with the utility nf the wnrk, they may suspend 
 111 aliamlnii the iimlerlaUiiig at any iierind, enni- 
 peiisaling fill any daiiiiige aeliially iloiu). 
 
 //( (V h'x'i ii^liiii nf L<jil:iiinii S/n 1 1, 
 
 •2X. s. I)., ;t:. 
 
 ! 21 Vid. (IMM), f. HI, ss. mt, 2«.», 2IS and 
 27)) 
 
 Under tiiesi' seetiniis the City nf Halifax and 
 its nllieers ,ire hniiml tn keep the streets under 
 their ihaige free nf iueiinihiaiices and in gond 
 repair. 
 
 //lid, thai it was their duly, when the street 
 i.iilway negli'eled their duty, wliiili wasei|iially 
 ineumheiit upnii tliinii, and withdrew finni the 
 tield, tn have the rails envered up iiiiiiiedialely 
 and tn have lirniighl the streets iiitii a sale enii- 
 dilinli. 
 Ailaiiix y. Th, Ci/y II/ I/n/1/ii.r, I K. iVd.,.'!!!. 
 
 2J Vict. (1S((t), c. SI. s. 2;() 
 
 " Xo ii.r/idii Khali III nimmi iiriif ni/niiix/ I In 
 Cilji nf /falifax 01- l/iiir roinmilli,- n/' .•i/m Is, m- 
 /iirsoiis ncliiiii Illllll r Hit in, iiiilil liniifi/ iliiiis' 
 Holicc ill irriliin/ iliall III' ijiriii lo t/um, nor itj'li i- 
 six mmillis nixl aj'li i- /fii arf rommiUul for irhiih 
 till' nvlinn s/ia/l In lirniii/ht, ami iriri/ sw/i urtloH 
 sliall III /a 1,1 milt Irinl irilliin Ihr Cili/of //a/ifnx." 
 
 The iiiiliei! may he given liy an attnrney nr 
 agent duly autliori/ed. The iintiee was that 
 aetiiin wnnhl he liinnglit unle..^ amends should 
 hi' jiaid, 
 
 //ilil, sullioieiit. 
 ll''///</- v. T/ii Cihj <if Halifax, \ K. & (;., ;{7|. 
 
 jiiiik simp w ilhoiit lieeiisi 
 
 /'</• llighy, ,1. That ihe ri imiiial side nf ijie 
 lily ('oiirt had jiirisdiei ion over I he siilijeel 
 iiiiiller and eoiild atlnrd eniipleie redress, and 
 liiMt I he prn.seeutinii Was wrniigly instil iileil in 
 ilic I'nliee Court at the suit of the City. 
 
 '/'hi i'ilij <if //al'l'n.i- V. O'Ciiiiiiiii; 
 
 :i U. \(i., 1!MI. 
 
 -J! Vict, (istti), c. si,K. lai 
 
 ■• \ii rnurirliiili liifni'i lln Miii/iii' nr iiii 
 
 Mill riiiiiii. iir III fun Un t'iiij ('miri. slinll In 
 
 'iKiisliiil fur li'illll nf fiiriil. mill lln irnrrniil nf 
 iiiiiiiiiiliiiiiil shall III- liilil mill III) riiismi nf 
 mill ilifirls Ihiniii. sn ns il In tlnriiii illlnlvil 
 lliiit Ihr /III rill has liiiii rniirirli il nf snnir nfi nn 
 
 iiiiiiii il ihiri ill." 
 
 Ililil, that wlu'ie the defendant was eoiiviited 
 it a ililleieiil oU'eiiee Irniii thai eliarged in the 
 
 -mill s, this was a mailer nf suhslame and not 
 
 "t liiriii, and did not fall within this .seel inn. 
 Till iViltj of //a/ifax v. O'Cmiiiiir, 
 
 :{ II. .t C, l!IO. 
 
 27 Vict. (1S«4), c. Sl,s. \'A\) 
 
 ■ill 11111/ riisi irhrrr lh< I'ihl Cniirl nr Nil 
 
 Miiijnr nr aiiij Alilirmiti in Ihi ilnil;/ /'olin 
 ''"iiii, Ihiiik fl. Iliiij miiij iiniinsi Ihi nlli riinlii-i' 
 "I II jiiir nr iiiiiirisninninl." 
 
 > " 27 Vict. (1S«I), c. SI, s. 227. 
 
 -'7 Vict. (1S«I), c. SI, s. 227 (Kccnlns dis- 
 "iilerly house, etc.) - 
 
 ''"iiviulion for keeping disnrdirly house in 
 wliiili defendaiit was adjudged to pay the sum 
 "'•'!'4lt, and "if the said sum lie not forthwith 
 I'liil. to he imprisoiied in the City I'lison for the 
 liiii'i'of IHI days." 
 
 //'/'/, good, the alternative! ]iiinisliment heing 
 '"lliorized liy .see. i;t9 of the Ac^t. 
 
 '>'h' Ci'i/of //alifar v. /Iroini, ii R. vt C., lo;t. 
 
1407 
 
 STATUTES. NOVA SCOTIA. 
 
 1K)S 
 
 Alliriiu'd (III a|i|H'iil tn llu' Sii|ir)'iiii' ('oiiit of 
 ('iilliiilii. <'iiH. lH;<i«l, OH. 
 
 Ilihl, lllill lllf WiUll of iiipl ill' llllili'l lliis ,Sc(' 
 tinii vvaH fiiliil. 
 
 lliiliiii^Kii \. 'I'll' Citji III' llnlifiix, 
 
 •-' K. \' (!,, ;i7.-.. 
 
 '21 VIH. ilHOl), V. SI, HH. ;»ii», ;j:u, :i:i», 
 :<l»,:tl7, :(.*><», :mmi ami :t«(l 
 
 SiM'iiiiii :i:i()iif ill)' IIiiIII'mx lni'iir|iiiriiliiin Ait 
 iliitilM lliiil "Ilii'Cily ('r.iiiu'il mIiiiII Imvc ixiwcr 
 tiiiisscsH III) till' iiilialiiliuitK mill on tlir |ii'ii|)i'riy 
 within till' City, iiiiniially, Hiirli .huiii uf inniiiy 
 ii.s may he iirri'HHiiiy." . . Scrtioii 
 
 .'I.'IT |iriPviil('M fill' HWcaiiiin City Ahsi'ssiii'i* "to 
 iiiakf a fair ami impaflial asscMHiiiriit nf the 
 City." Si'iliiiii .'l.'ttl, uitli the amcmlmciit, ilt- 
 rcrtM " a.ssi'MHim'iit ii|iiiii the ri'M|)t'it ivc waiils 
 fur all HtllllH of iiioiii'y iif,'ally aiil liori/cil," to lir 
 (■aifiril on Himuitaiii'ously. I( is niartt'il liy 
 HiTtioii .'MO that " tlic asHCM.sim'iit MJiall lii' latcil 
 on tlm oci'iipaiitH of real estate, Iwinj,' yearly 
 ti'iiaiitH, ami in all other eascH on liie owners 
 of itropei'ty, liy an eipial jioiiml-rivtf uiioii 
 liie value of the real ami personal estate 
 within till! City, whether hucIi real ami jier- 
 fonal estate nliall lie poHHCHHed, oocupiiMl or 
 owneil by Imliviiluals, or liy any joint stock 
 eonipany or eorporatioii, ami whether owiieil liy 
 parties resident or aliseiit, acuording to the liest 
 kniiwleilj^e ami diseretion of the City and Ward 
 Assessors." . 
 
 Section 347 is introduced for the purpose of 
 interpreting and delininy the words, " personal 
 estate," aiid enacts that nnih'r the term " per- 
 sonal estate" shall lie included all househohl fur- 
 niture, mollies, ^oods, chattels, wares and iiier- 
 ehandise kejit in private or pulilic premises, or 
 in the (iuecni's or other warehouses ; all ships 
 and vessids, or shares in ships and vessels, 
 owned l>y persons residing, or having otlices, or 
 doing businiss within the (*ity, whether such 
 ships or ves.sels lie at homo or abroad at the 
 time of assessnu^iit." .Sections .S.'i!) and 'MM) jirii- 
 vide for ruled blanks to form valuation books 
 for the assessors of the respective wards, con- 
 taining places respectively for the number of 
 the ward, names of parties to be as.sessed, value 
 of real estate, value of personal estate, and total 
 amount on which assessment is to be levied. By 
 Hectioii ,'l(il it is provided that when the whole 
 ainiuiiit of property on which any person is t<i 
 be assessed in any ward is determined, he shall 
 be served with a notice upon a blank similar to 
 that provided in the two previous sections. In 
 the form of the prescribed notice tht! City 
 Assessor is recjuired to state the valuation of 
 real and i)ersonal estate of the party to lie 
 
 assesm-d, " within Ward No. , ul lliiCiiy 
 
 of llalifav,iin wliiili asscssmiiil for tlie iiiimii 
 year i.s to be levied," and lie is also lo Hlalr Ijni 
 any objuelion to lie iiiade is leijiiiieil in writing 
 aiteordiliL; to a finiii to be verilied by allidavit. 
 This statement is headed for *' Ward No. - " 
 
 and rei|uires from (he peiHon assiwHi'd a hihm in 
 be tilled ill a blank opposite the following; ilnii : 
 " Shijis or vessels, or sli.ilesaiid interest ihriiin, 
 whether at home or abroad ;" and it iseiinhfl 
 by this elaii.se that the n'lnrii of ships, or \(^ 
 He|,4, or shares, shall be made by (lie party in ilir 
 ward ill which such person shall reside. Tin- 
 fill III ol airnlii.vit direi'ls the depiiiieiit tovinl^ 
 the value lo be therein spieilieil of tlie pin 
 perty iiielildilig " personal estate" for wliirli 
 he was liable to be liived "within Wiml 
 
 No. ." 
 
 //(///, l!iat vessi'ls owned by a resiileiil, Imi 
 never registered at Halifax, and always s:iiliiiL' 
 abriiad, did not come within the meaniiiu' nf llir 
 words, "whether such ships or vessels lie ,il 
 home or abroad at the time of assessiiieiil," ;iiiil 
 therefore were not liable to be assesseil I'm rilj 
 
 taxes. 
 Tin i'iiii of lliilifiix \. h'liiin/, 1 K. i*t <;., .'ill; 
 
 ;ts. c. K., lit;. 
 27 VIcl. (1S.1I), <•• SI, s. ;mi- 
 
 •• 77/e iirrmiiiiil jirninrtii uf nil /n rsnnf 
 11SS1.1S11I iiiiilir lliis All fir I'i/il I'lili'S, slmll /.i 
 Hiililf fur lllf full iiiiiiiinil uf rnlis iliu . iml- 
 irillisliniih'iiil mill iis.sliiinniiiln ur ulln r nuiri'ij- 
 iniri iiiihir hij Ihi' iiii-iiir uf siirli iiru/ii rlij. uf 
 uf iniij jiiilijiiiiiil I'liliriil iiijiiiiisl llu iiii'mr 
 Ihiriiif. ur mill i.ririlliiDi issilnl In liiiid llu 
 liriijii rlij." 
 
 'The City of Halifax has no jjicfereiilial iliiiin 
 for taxes, under this sci'tioii, against the ;is 
 signee, under tlu! Insolvent Act of ISTI. 
 
 McDonald, C. .1., ilixninliiii/. 
 
 Ill rr Marlir, .'HI. & C, li'-'. 
 
 U Viet, (isni), c. SI, ss. MW and :ttO 
 
 S. .'Itiil provides for warrant of distress tn I"' 
 i.sHued without delay, for City ratios, and gives 
 form of warrant. 
 
 S. .'171). " If (hi- mnupji ns.irssi'il hi' iml ''"'• 
 lirti'il mill imiil nvcr tn the (Jitij TrniKiini' 
 viiili-r till' imirrmit, uf ilislrrss. hr ulinll n-illn'iil 
 ilrlini Kill- fur llii' mituiuit, inrlitniri' uf llu' '"' 
 pi-r riiil.. ur fur su witch ns is not rullirtitl. iif 
 ill I'lini' uf ilrht, the iivl.iuii tii lie hi tlir muin 
 uf Ihr <.'it!i; III!' Tri'iisiirir's rvrlifiriUi- hi "■'''■ 
 itiij ahull In- iinxinnptivc vvidvni'f of thr mh 
 hihiij dm mid inijinid, mid slmll hf siiffn'i'i'' 
 til itilitir llir (Will III II jlldipnilll irilhuill fiirlli'i' 
 prouf, vnh'SS n ijuud mid jiixt difnirr '"" '" 
 mitdr Ihvrvtu." 
 
i4o;> 
 
 STATUTES, NOVA SCOTIA. 
 
 1410 
 
 •i7 VIrt. (iMOli, c. SI, N.SDI- 
 
 TliM io(|iiiHiir.si.f NiM'iion ,')7t), (if till' City Aul, 
 cl,.t|.t..r«l A.t. ISdt.un. no, Hutlicic.ntly o..,,.- : ''Wh. r, n ,,nn,/n,o,' ror,'. inn. .hrtlH.. i,.,,.o.nl 
 
 , >-. w.tl. I.y a ,...„il„.,u.. H,a,in« ,n..r..|y ,lmt ,,, ,;,;, ,.,,,, „„, „„,,„,„•,,;/„, „,„,,, ,, if,„i 
 
 .!,.• .I.f..nl,u.t luH 1,....,, u.s..s..,l in i,„..„lar ,;,, ,h, r,ro,:„j fhn',n,\ >h. sam. ma„ l„ r.ror. 
 
 .innuMt. of uln.h 1,.. Um Inul Motifu, an.l that ,,„, ,•„ ,a. ,mm. o/' .A,: ('If,, of H„n,}u; U,hr. 
 the iiMiDUiil 1.1 (liif unci uii|mi(l. 'I'lif ciTtitiiatf ,i,, ia„ »«.•«,.,...; r. . i/; ' ,' ,i '/• 
 
 inii->l f{(i fiiitliiT, mill Slow thill the uiiioiinl has ,;• t i .■ , , . , . 
 
 ,, ,, , , ., uii. um lias f,jlir, ; nil'/ ir/i'iu no />(irfiiii/,tr mnih' nlnini/i/iii'i 
 
 iiiii Ip.'i'n ooIUmHi'iI anil piiid over iiiiiliT tit.' war- ,„,,,,,„„„/,., ,i,„// I i i ,l ' " ' ,' 
 
 . f ,. . . , , , , "".V l» »("'!/ xhall III jirisifi'ini, Ihr. innn', n-hm 
 
 milt ot illHtlL'NN pioviileil for liy Huflloil ;<tlll. ,.,,•,;,■,,/ .h..ll l . .■ I < ,i n-. 'I' 
 
 ' ' n II ii'iii, s/id/f III jiiiii/ on r to /hi CV;/ / naiiin r, 
 
 Tin ('III/ oJ'/Mijhx V. /ioi/T/-, 1 N. N. I)., 0». luimrili //n I'limh of lh> C'lhj." 
 
 III a iHiial niattor it cuniiot he I'onuludod that 
 
 •21 VUt. (ls«4), €. SI, Hs. 4.10, l.il and 
 
 l.»'2 
 
 IVovisions iiiiposing ucrtain tiiu's mul punal- 
 tilt on •'I'l'orji prrsmi svinlinii Jhnu ur nffiyiinj 
 
 "^ ^ • » .7 t'l I t^'iii niiifiiitif ji iiin lit i\iiirtiiif ' — *..v. ..,»,,,*. ..t I. 
 
 :„t' mill- iKitliin l/ii' Cihi lit' Ifiill/ii.f. muj Imrvil "" ""'•I'iiiiul'c of tlie ('it> 
 
 thowi.nls "Mayor or prcsiilinj,' AlcliMniar.," in 
 this Hoctioii, ix inti'iicU'il to refur to tlii' I'oliuo 
 Court. It cannot, thi'ivfoiv, he hi-ld to mitiio. 
 ri/.o tiu! hringiii),', in ihu I'olicc Court, of an 
 action in the naniu of tiio City for violation of 
 
 uf /mil' hiiriU'l III' jlniir i,r tuml ihjiriinl in 
 >'ii[ilit. iir ii-itliiiiit its liiiviini liiin liVKwh-il." 
 
 Tlicsi' jirovinioiis were .siili.staMtiuliy iiicorpo- 
 Littil in :h-d I{. .S., c. ,S,'), liy which pi'o\i.-iions 
 wiiv made for the inspection and weighing of 
 'mi and meal, in the rrovince generally 
 
 Thi City of Halijax v. O'Connor, 
 
 3 R. &«!,, nxt. 
 
 ai Vict. (is«4), c. SI, s. «.M- 
 
 " Till City Council tnni/ illri ri huiUliini^ihi mi il 
 
 V.,.., ... w.^ ■ ...wiiwL- gum.iiviij. .nnimiii'is nmliv /his Ac', ii/ion inn s/ii/n/ioii of 
 
 ff'/'l, that the sections of the City Charter i ""'/'"''''"'"' '"'""'"'''O" fi'"" oirni is or Imilili i->, 
 uvic covered and repealed liy Dominion Act, '"./"'"'' aJinfi/i o/ /hi- Sii/inmi' Coiir/," i /i\, i fi: 
 ICt, c. 4!), s. •_'(»: "All Acts or (larts of Acts, i I'lU'ties proceeded against under this section 
 'I "f any charter or law now in force in tho p''*-' entitled to an information, if they rei|uire 
 '"million of Canada or in any Province thereof, •'■ '^">l it i>* U'>t necessary to resort in rlie first 
 iinvidiiig for the inspection or the appointniuiil ^ iuslmiee to the I'clice Court, under s. ti.'it of the 
 ■! inspectors of any of the articles tlie inspoc- '^'i'"'^' ''^'-'^• 
 I'll! of which is hereliy provided for." Tiie Act 
 
 In 
 
 piiAiiJed for the weigiiiiig mid liranding of tlour 
 .iinl meal. 
 
 Th> Ciijiof Halifiix V. Ciinnini/hnm 1/ al., 
 
 7 U. ^;(i., 14. 
 
 •-•; Vkt. (1804), c. «1, s. 54»- 
 
 ■ Ml jinrs and /imnltii's innniintinij ri'sper- 
 '"■''.'/ til liijhlij il.iilhirs. or lulon- thai sum, lnj 
 'hi.i Art, iir liij amj lnji'-htw or dViUnnncc nf (he 
 
 Gil 11 of Hal i fur. aivi Si i ion i-t nl., 
 
 St I 
 
 HALIFA.Y, CITY OF, 
 
 28 Vkt. (18051, c. 1, 8. - 
 
 " Thi nuliri' jinsirilii-il in thr arlu'ilnlv to thin 
 Act skull III inihirsi'd nu nil .sitmmonses and 
 cd/iin.i issnril III) Jnnticin of thr Piiirc in civil 
 rums, rrt/nirini/ thr ilr/inil.anl In file vHh the 
 Muijistrdtr issninij nnij such summons his srt-nff 
 
 ''i':i (.'onncil mmh' under the iinthnritij nf this <" the jdnintiff's chiim, u. cop)/ of trhich notice 
 
 k'<.i..i .1 1. .. .1.111 1 .< -. . .. 
 
 >'"("/»', or iini/ other Act of the Produce, fur 
 On- nriirrri/ vhrrenf no provision is nthrrv.'isc 
 <'*'"''■■ shifll Iir sued for and, recovered in the 
 
 >'"iiii: I 
 
 [fthe Citij of IlnUfii:i\ hefurc the Manor's ] ivhsolutcly void. 
 
 '■•'iirt, in the some manner as ainj drhts can ha 
 "'■"verrd in the said Court ; atid all such Jiues 
 "'"' pi'ialties, P'hcn recovered, shidl liehma to 
 "■•■ C'it'i." 
 Ildd, that this section did not justify the 
 '•'iiging of an action in tiie name of the City 
 '•>t violation of a City ordinance in keeping a 
 fwiiie and junk store without license. 
 
 shall he served on the defendant fith a cop;/ of 
 such summons." 
 
 Hi Id, that a summons not so indor.sed was 
 McDonald v. Mills, •_> Old., Hi."). 
 
 ^Vant of such notice is waived by defendant 
 going into his evidence at the trial. 
 
 Billoni V. Murphy, '1 Old., 16G. 
 
 28 Vict. (180,1), C. 1, s. 13- 
 
 -- — — "I'rociss nndir" chapter 70 of .3rd R. 8., 
 
 Iliis section cannot he intended to refer to c. 7."), "shall he diroc/cd to the Sheriff or his 
 
 ■""lis 111 the Police Court. : Deputy, or u-hrre the Sheriff is interested, to the 
 
 The City of Halifax v. O'Connor, \ Coroner." Though il may he true tiiat, in some 
 
 3 R. & G., 190. i instances, a writ directed to any other person 
 
 47 
 
un 
 
 STATl'TES, NOVA SCOTIA. 
 
 141; 
 
 tlmi. \Uv ShiTltr would It v.,1.1, uh « .• xvnuM y/././. that tl.i> A.t -I Istillwan nol np.,,|,,| 
 
 pn.lpal.ly lu'l'l wluiv i wain.iit to K'V.V tlu' l-y tliu |ml.linUiniM.t tl..' »tl. K. S., un.l .v, ,mI 
 
 iiin..iint l.y .liHti.-H an.l milo of tlu' .U'f.ii.laufH it wi^if, lli.^ .Iuuhch of tl.« (.'ity Cliaitcr wl.i. 1, it 
 
 i.li.TtH. aii.l a poitioi, l,y nali' of I.ih v.«m.|. was iui-cuUmI would not l.y hulIi i..|.fal Ihj revivt.l, 
 
 Uiiiii'il uihUt ilia|i. 7."> of the Ui'viMfil StatutcM, 
 fhiM ilocH not a|ij)Iy to ii Hunmioiis followiMl l>y 
 an uiiiicarancu. 
 
 .!/('/• »No/( V. MdHoii, '■' Olil , .'Kill ; 
 I N. s. 1)., 1. 
 
 '2H Vict. iiHU), f. 10, ». 7- 
 
 liiijlii V. .)/(»/i'i '' "'., 7 H. v*ic •!., "Lil. 
 
 •2H Vicl. (1M«I, C. HI, «. «- 
 
 "A// /II iiii/li' i/<i>' llti lii-'Hih iij Ihi lii'Di-i- linri, 
 
 ilti'iirnd III/ iilliii',! liiinnr-i irilliiml lin iiv ,niiil nil 
 
 \ prOMifiilioiit (iiiftiiiil iiiiiti'i biirlini /ill 11-11 './ill' 
 
 n'n/dtidii tif/lti Idir.i, mill, nil III null ill j'lif lii'ii'h 
 
 '■ \i, ,.. rxnn ,i.-,„r.i,i,is n-hn xlmll '"■ niliilid "/ '"'.'/ /""' "/ "'• ''"'""' '"""' '"" %'•'■'">. "'' 
 to inii, iii'liiia 1,1' unit ,nlh ,:s,iiil ^. n-hH, Ihr onlimiios o/lhi VHy o/ IMijhu: u, nfnnin 
 
 un-ii.hnfliniiMliuii irilliiii irliirhthri kIoiU IIh n Io, or fo,- In-iwhuj an,, h,. -laii'. oroiH,,. 
 
 Ulirnliilla h lii-nl liil xirti"ll nin-'".'- '■''"I't"- 't"'''- of llu CV/// ,v ,/'</"'",;/ /.-■./M.rUo,,.. ../,./. 
 „.,. Inniilriil'.niil m-l'mr of lln' lti>-m<l >'-h'nlhi of, i.n lur^ hin, rnnnniNid ,n>hi,.'h. 
 .SMt,aisithiMxirii's].Vli.in hi- iiiUnidliiiuni^Cilij of Halifax, 1,1 hruylil, in Hi. nanw nj >h. 
 tiiiu ,nVii,,,i-lii<li to riiiiiiiiiiiri- iind >iin< Hitrh rilt/,atth,',i.^^^^^^^ 
 
 arti.i, .nil hi;ii,id tlu' in dud m jM fn- the \ This Heot.on must l.o taken to refff to .uits 
 
 «,<»..., /-'/ r,n.,ia iiiiUj If mi-h pi;-si.„, m- .-.,.« , before the City Court. It .annol 1- tak,.„ to 
 „„e iiv min'v nf.nrli ,iirsi.,i., hd,,,, at tin Ihnr 'vuthori/.u the l.rn.g.ng o an action ... the I Mi.e 
 I "•■ ,■ , .,.!t ,i,;-,-,i,,l mil iif Court, in the iiaine of the ( ify, for violatiun i,t 
 
 of mirlt ridinr iij luiinii m' ■■""' nci'i'in i<- mn ui voviii,." 
 
 ihc I'foniia; in- in tin ni.,s in n-liidi I'll dHii>' '"■ <■'''>■ '"■'l''""'^'^'- 
 
 of the ofimmid Hcrtimi iniiirimiiniii'iit is imi" n 
 
 iUsaliilit>l, liij fiiimti of mirli jiirsmi. ur niiiini 
 
 ,,nv III' inori' if xni'li inrsons Iniinj iiiiiii'imiiiifd 
 
 III Ihf tiinr if siirh raiixf if lu-linn nr miil 
 
 ai'cnii d." 
 
 Seetio.i 7 of the Mereantile F^aw A.nendincut 
 
 Act of 1S65 {'28 Viet. c. 10), has a retrospuetive 
 
 ojieration as regards rights of aelioii ; hut (haus 
 
 not apply to autio.is eoiniueneed liefore its 
 
 passage. 
 
 ConlxoH V. Saiii/'tlir it ft/., I Old., 0(0. 
 
 7'hi t'ilij of Halifax v. O'Couiinr, 
 
 29 Vict. (1800), C. 1 
 
 Si I- 3rd K. 8., c. lO. 
 
 ! 29 Vict. (18WJ), C. 11- 
 
 si, ;{ni K. S.,c. 121. 
 
 I 
 
 ' 29 Vict. (1800), C. 11, s. 10 - 
 1 I'rovides, in eoinieetion with the Otli sectimi, 
 I "but, nevertheless, in all aclio.is at law in th..' 
 ' Supreme Court, on the trial or argument "I 
 which mattei's of eiiuitahle jurisdiction arise 
 that Court has power to investigate and deter 
 ini.ie both the matters of law and enuity, or 
 either, as may be ncee8sa.-y for the conipkte 
 
 .Mliiitiilile 
 j defences shall he set up in virtue of the sections 
 of this chapter, under the head eciuilalile 
 /« .eiVneoeU./., 2 Old., 178. i fences, from section 4:i to section 50, Uh 
 
 28 Vict. (1803), C. 28, 8. 8- 
 
 •■ .III fntui'i: ii.isi'ss,iii:iil!i, under the chajitur 
 hirihij umitidid, fir the support of svhools, d'c, 
 shall he madi:, itf., under the provision of the 
 
 third scctiiiu if this Act," i&c. \ udiudicatio.. and decision of the whole mattir 
 
 Hi III, that ^^ all future a.^.ie>iment.i" referred , ^^^^^^ ^^^^^^ ^^jj ^^^^.^^^^^ ^^^ j^^^. ^^ ^^.j,;^,, „j„i,,,,,, 
 to assessments made after the assessments c(m- ' 
 teniplated in the 7th section should have been 
 completed. 
 
 inclusive, are, and shall continue to he tried 
 
 considered and adjudicated by the .Siiiireme 
 
 28 Vict. (1806), C. 87, 8. U— Court and its .Judges, in the same iiianiiev as 
 
 (Form of tavern and shop licenses in the City regards the said several cases respectively, as the 
 
 of Halifax)— i .Supi-eme Court or the .Judges thereof lia.l tho 
 
 This Act amended c. 81 of 1804, and three 1 power to do when the Act for appointing a Ju'lge 
 
 classes of licenses were authorized in the City of ' in Ef|uity was jmst. But it shall be lawful lor 
 
 Halifax, tavern, shop and general. By Acts I the Supreme Court, or any Judge of that Umi., 
 
 1869, c. 3'2, 8. 4, the General License Act was , before whom the consideration, trial, or heuriiig 
 
 amended, and it was provided that no other | of any question of equitable jurisdiction, or any 
 
 than tavern and shop licenses should thereafter j such mixed questions of law or c(iuity ma) 
 
 be granted. By section 10 this ain^udment was I come, if they or he shall deem it expedient ana 
 
 made applicable to the City of Halifax. | conducive to the ends of justice to do so, to 
 
Ui:} STATUTKS. NoVA f^COTlA. 1414 
 
 ..plrr tin- c'iiMi (if iiiiy Miiliji'ii iiiiilttr aii«iii^< I'iimii ipiiuii Aut, •_' it ;« \Vm. 4, ilmpUT 7l, piT. 
 
 ilirifiiii to III- tiuimffrred to the jurUiliilimi ot iiiittiiijj; u Ki'iiiTiil ullcj^ution of iluMiijiijiiuiil of 
 
 till' Ki|iilly .liiilp', to lie ilciilt with lU'conliiiK In u way tuxl Hiinphfyiii^ the foini of ph'iidiiij,', hioi 
 
 till' pllliripli'M of t'i|iiitiihh' jlllinpniihliri' lUnl lii'i'll oliiilltMl liy Ndiiii' iii i iih'iil, foe it coiilil iioL 
 
 till' i\i>{t'iioii'i« of thu riiHu," '|"hu lOtti n«jitioii havu liofii iiitfiitioimlly done, in onr Act of 
 
 iiMM tht'Hi) woi'iIn : "All iictioim at liiw, on thu I8(ttl, clmpter IL', thon^'h hoth tlu' pit'ecilinu 
 
 ll'iiil or iii'^'iniictit of whiih iniitti'lH of I'lHiiliilih' ami follow in^' scei ions have hei'n adoiiteil in it. 
 
 jinindietion jiiise ;" and iiIni , "All aiticpiiM iil I'laetiti ih muxt licwaru of thin in fniiniliii 
 
 liiM to whii h ei|nitiililu (U'ffiic'i.'s nliall Ik^ wet up their pleiiH, and follow' the eoininoii law form. 
 
 Ill virtue of eiip. l'_»4, HecM. 4.S to ."lO." What is Coinmu v. h li/nw, "J \. .S. I)., I.'J. 
 
 nu'iiiit here? It nieaiiM all aetioiiH at law rei|uir' 
 
 ili^ adjudieation for the endx of ju.stiie or 
 
 ii|iiitalile priniipU'd, and aw \vu huvu licM, in- 20 Victt (18IMI), C, 1*2, h, 1— 
 
 vdkiiii,' that adjudication liy iilea or replication <>/.',■,.,„„,„/„,> .<( /;■,,•,/ .' ;. 
 
 mi ri|iiitalile grounds- iiot the inartilicial and /,, ,. ,,,,, ii,,,„^„,„i . .i i i...'.i i i ■ . 
 
 ' " . '">< "11' ihowniiii I Hint niinuntl and Mxtiz-six, 
 
 iiliKiUil pleas Honietinies preNcnted touN, ilainiiiiL' „,,,„,.„,.,,„;,„//„,„;., . ,„.. .• . ', • 
 
 ' ' ' h ii<>t"i''onH/inifm(iki(iiii.n(ryor(lmfri:nn,(irliriiiij 
 
 I'MUlly where there is neither law n..r e,,uity to „„ ,„,,,'^„ ,„ ,.,,,,^,.,,, „,,,^ /,^^^,, ,^^, ^,, ^^,_ ,^^^^ ^^..^^^.^^ 
 
 Mi.iiiin them, l.ul pleas really depemliiig on nn .h, y,urs ,>,x/ „f/.r »i, /Imr nf .-/urh >h, rl;hl 
 
 luiiii i|)leH of ('(luitv, which the Common Fjiw in jnril,„,„l, /.,/..., «.. .i.\,> . , i ■ ' l 
 
 ' ' 1 . ' rn iiKihi' xHifi I iirry or (liKtfisx or fo liniK) mirn 
 
 0.urlsin\\eBtminsterH<dl ,'annotasyetrecog- ,^,,;,„^ ,,,^11 hart fir.t ucnud lo ^o,w.' ,„ rson 
 
 nizf ami act on, Imt which, by virtue of this ,/„.o„,,a ,,'hom he vtnImM, or if mu-k ri,,hl .hall 
 
 a'clio,,, are transferred hodily and as a whole to ,,„, ,,„,, „,.,,.„,,, ,„ ,„„^ ^„ ,.,.,^,^ ,,,,.^,,„,^ j,,,^,^^^^ /^^ 
 
 tins Court. And how are they to I.e tried, rlnl,ns,th,n within hmi/y ,/„tr. u,x/ uf'tr the 
 cons,dere.l and adjmlicat.,'d ? In the same ,i„„ „, „.,,;,,, „„ ,,,',,,,^ ,„ ,,„;^.^ ^.,„./^ , ,,^ ^^, ,,.^, 
 nmiiMcr as this C.urt or the .h.dges thereof had ,,,,, ^, ,„ ,„.,■„,, ,,,^^ ,„.,,'^,, ,/,„/^ ,,,,,.„ ,.,.^^ 
 IK.wcr to do from the year IS.",, when the Court ,,,,,,,„,; ,„ f,„, ^„ ,.,,,„ ,„„^,',„^ „,. /,,..^,,^,.,,,^ ^,^^ 
 if ( h.incery was aliolished, to the year IS(i4, ,,((„„,_" 
 
 ulu'M the .Judge in K-iuity was appointed. This This section is similar to section •_> of :{ .V 4 
 Court may transfer M.ch cases if they think Ht, w„,. 4, ,.. -JT (Itnperial), and un.ler that it Ims 
 I. the juris.l.ction of the K,,uity Judge : hut if 1,,,,, ^^ as a general rule that the acthm must 
 ik-y do imt, they have all the powers of the he hr.,ught within twenty years after the original 
 ..luity .Judge in framing ami enforcing their right of entry of the plaintitf, or the party under 
 .lanes, '['he narrow h.mnds of the Common | ,vhom he .■laini. accruc.l, whatever he the nature 
 Lav no longer restrain them in the forms of its of the defendant's possession, hut the Statute. h,es 
 inmd. and its jmlgmenta, they have the ,„.l apply to eases of want of actual possession 
 ainiu.nty ami the freedom of an K.iuity Court. i,y the phiintitf, hut to those ojdy where he has 
 All the secti.ms of thu K.p.ity Act, chap. li'T |,een .mt of it, and another hasheen in for tho 
 •-'■Ml «enes), which are substantially the .same as prescribe time, for there must be both absenco 
 ihnsc of dull,. |-.'4 (.'hd series), then apply to of possession in the pers(,n who has the right, 
 tlum, an.l in the language of one of the sections, | p,j„i actual possession by another, whether ad- 
 ■; The Court, on the tinal hearing of such cases, verse or not to his possession, to bring tho caso 
 uiiU give judgment according as the very right -.viiiii,, the Statute. 
 
 ■i tlie cause and matter in law shall appear unto ; Dt^Uarrts v. Shty, 2 N. 8. I)., 327. 
 
 liii'iii, and so as to atford unto the parties a com- 
 plete remedy upon the principles which prevail I Ste EJECTMENT, 30. 
 ill (.'oiuts of Eijuity and may be applicable to ' 
 
 ;he particular ease." , 39 yjct. (jggg)^ ^ 2g^ ^^ |3_ 
 
 liuiih 0/ Xova Scotia v. Forman it uL, 
 
 3 N. S D 141 "'^If i"'>'soi)s shall be entitli'd at all reasoii' 
 able hours to search these records and to re- 
 
 nWct (IfiOA. ^ 19 '^""■'^ "'"' '^ receive extracts duly certified by 
 
 mi. tiSOO), C. \i- ,,^g Chairman of the Board of ^Statistics, ichich 
 
 hr Young, C. J.— This road, under the evi- shall be evidence of the entry certified, and 
 ™ce, is a public way, common to all the Kings prima facie evidence of the facts asseried or 
 Mbjects, and would more properly have been claimed in the entry, and be accessible for ex- 
 pleailed as such, but I confess myself not at all aminatiou on payment of twetity cents, and 
 'wry that one refinement can be met by another, shall be prima facie evidence of the facts there- 
 ^hich enables us to sustain the riglit. I may as | in stated." 
 *ell remark that the 5th section of the English | Although the certificate is prima facie evi- 
 
1415 
 
 STATUTES, NOVA SCOTIA. 
 
 1410 
 
 denoe, the Act (loos lu.t make it tl.e Hole nor Chaptfr S.i of Iht Art, of ISO,!, >■»,•/( rom,mny, 
 
 even the l)est evidence of the fuct.s to he proved, d-r., v,>on roHrirtwii, shall forJ<ut and pa,, a .»,« 
 
 Qmen V. Alliii, '2 Old., 37.S ; o/nol l(ss than tm dollars, ■•• , to In- nror, nil in 
 
 1 N. S. 1)., 5. the vame of the. City of Halifax," lir. 
 
 35 Vict. (1812), C. 34- 
 .SVe 2T Vict. (1864), C. 81. 
 
 36 VICt. (1813), C. 14- 
 .S( r 21 Vict. (1864), c. 81, ss. 310 and 3U. 
 
 30 VICt. (1867), c. 1, s. 2- 
 
 Stt 15 Vict. (1852), C. 13. 
 
 30 Vict. (1861), C. 16, 8. 1 - 
 
 ''After Iht passimj of this Act it shall not Ix: 
 laiifttlfor any /lerson exrijit thi oirncr or wjcnf 
 ofiniiiinii claims then hdmj icorktd, or unless by 
 iht authority in icritin;! of the Deputy Commis- 
 sioner of Mints of the district, to sdl orj/urchase. 
 
 36 Vict. (1873), C. 17- 
 
 (Aii Act to iiicoiporiite the Town of Dait- 
 
 except from mich owner or authorized jnrson, any j '""" ''"7 
 
 quart-/, contalnimj '/old or sm< licit 'jold, at o) 
 within three miles of any (/old di.-lrict." 
 
 This section creates two distinct offences, 
 that is to .lell or /turchtisi quartz, except from 
 the person mentioned in the first part of the 
 
 Per Sir \V. Young, C. J.— 
 
 Our common schools, under chapter :«, 
 derive their support from three sources ; tirst 
 from the Covernment grant of SllT.WW under 
 section 41, secondly from an addition uiuler 
 
 the person u.entionea .n ine nrsv pa., o. "- , ,,^ annual vote of the Session.s in 
 
 section. Where an .nd.ctment .n .me count ^^^j ;,,^,,. f„ ,„,,,, County purpo.es, of a 
 charged that the defend.u.tdul sell an.l purchase ^ '^„ " ' .,. af^r certain deductions, to yiel,! 
 
 quartz, it was held clearly bad 
 
 sum sutHcient, after certain deducticms, to yiuW 
 
 Queen v. lilacbt, I N. S. 1)., 3SA. ; ^^^^^^ ^^^ ^^^^ ^l^^^^^^^.^ ^,^^ ^^^^^^ ^^^ _,^^^^^^.,^ ,,, f,„.,„ 
 
 and l)e a porlicm of the County rates ; tliinlly, 
 under section 73, from the sums voted at the 
 annual meetings of the sections held for the 
 election of Trustees, and for deternnning tiie 
 amount that shall be raised in each to supple- 
 ment the sut-s provided by the I'rovince luid 
 County. The Act also creates the machinery by 
 wiiich the business of public instruction is 
 carried on. Sections 84 lo KKJ provide a spcciiil 
 system for the City of Halifax. Special pro- 
 vision, too, was needed for the incorporated 
 Towns, but this has been left to their own 
 choice, and it is difficult to say how mueli or 
 
 ^nuer ^..» .o„o, .. .„ how little of the Act remains in force witim. 
 
 Annapolis Railway Company are liable to be their respective limits. The Dartmouth Act, 
 assessed for the maintenance of the dyke pro- | 1873, c. 17, ii> the -27111 section, gives tlie 
 tectiiv the marsh over which the track of their ; Council jurisdiction over the support an<l regu- 
 road passes, owned by them, section 16 of chapter lations of the public schools, and the appoint. 
 21, 4th Rev. Stats., applying only to county 1 ment of the teachers, and, by the '.Stli suction, 
 assessments; and recourse need not be liad to I the Council shall vote, receive and pay wluUeNCi 
 the land itself under section 15 of chapter 40, 1 monies ar(! re(iuired, inter alia, for schoo. rate.^ 
 4th Rev. Stats., as that section refers only to and shall have within the Town all the iKmei. 
 the original construction of the dyke where the ! relating thereto vested m the Sessions, (.um. 
 
 ° , -. c._i iM .;.,,,o oiwl Tnvvii Mei!tlllL'. 
 
 owner has not consented. 
 
 Broirn V. Windsor it- Annapolis Jiailway Co., 
 
 2R. &G.,430; 
 2C. L. T.,262. 
 
 30Vlct. (1867),c. 19, s. 2- 
 
 Kepeals sec. 11 of 3rd R. S., c. 13,"), and pro- 
 vides instead that in all causes in tiie Supreme 
 Court, where discovery is sought, interrogatories 
 in writing may be served on persons competent 
 lo be witnesses. Neglect to answer to be deem- 
 ed a contempt of Court. 
 
 Set 3rd R. S., c. 135, ss. 11-14. 
 
 30 Vict. (1867), C. 36- 
 
 See KilUVAIS, 21. 
 
 31 Vict. (1868), C. 24- 
 Under Acts 1868, c. 24, the Windsor & 
 
 32 Vict. (1869), C. 1, s. 110- 
 
 Sce MINING LAW, 12. 
 
 33 Vict. (1870), C. 99- 
 
 Provided that "upon the Halifax City Rail- 
 road Company, diC, via'ating the provisions of 
 
 Jury, School Meetings and Town Meeting. lli« 
 powers of the Commissioners of Schools iuv 
 thus transferred to the Town Council, um 
 Trustees are no longer to be appointed, by 
 the 3.5th section the then school house hecaiuf 
 the property of the Town, and by tlie .'iOtli 
 section it is declared that the Town shall lie at 
 off into a separate school section, and the lown 
 shall have the expenditure of all school vm 
 raised within the limits thereof for the scliook 
 of the Town, as also of all Govennueut aiui 
 
1417 
 
 STATUTES, NOVA SCOTIA. 
 
 1418 
 
 scluiol grants for such schools, which shall be poses, iiiul proceeded under it to oxpropriiUe land 
 paid to the Council— grants, let me ask, from \ of the plaintiff. The bye-law provided for the 
 what funds, and by and to wiioni paid ? From : appraisement of lands taken by tliree appraisers 
 the (iovernment, drawn from the Treasury under appointed by the Town instead of by one 
 section 41, and from the sections, drawn from appraiser appointed by tiie Town, and one by 
 the asbessment equal to liiirty cents a head, the owner, as under the Statute. 
 
 under section 5'J. 
 
 Qiian V. Toini Council of Dutimonlh, 
 
 1 K. &<i.,4(»2. 
 
 36 Vicl. (1873), c. 40 - 
 
 (An Act to incorporate tiie Xictaux and At- 
 lantic Kaihvay Company)— 
 
 *t RAILW.\Y8, 7. 
 
 37 TIct. (1874), c. 18, s. 27- 
 
 (Sunnnary jurisdiction of Supreme Court 
 ahdlisiied) — 
 
 //'/(/, tiiat the decision of the County Court 
 (in an appeal from Magistrates who had made a 
 conviction for violation was final, since the 
 summary jurisdiction of the Supreme Court liad 
 been abolished. 
 
 Cooinn V. .}fcL<(ui, :i R. & C, 479 ; 
 
 Cochran v. Larconi, 3 R. & C, 480; 
 
 AW V. Jinrkt, 1 R. i'fc<J.,94. 
 
 Ht/il, that notiiing could be done with a 
 summary cause removed into the Supreme Court 
 liy c( riiornri since its summary jurisdiction had 
 been abolislied. 
 
 Ewjur V. Carey, 1 R. & (1., 49 ; 
 IVallacc V. Kln,/',-20'S. S. R., 
 
 (8R. & C), 283; 
 SC. L. T.,449. 
 
 fftlfl, /irr Smitli, Weatlierbe and Ritchie, JJ. 
 — That the bye-law was ii/trn rin.s the powers 
 of the Council. 
 
 McDonald, J., dixsenlinii. 
 
 I\r Ritchie, J.— Tiie making of bye-laws for 
 the expropriation of land is an extreme power 
 and should not l>e held tol)e given by implication 
 unless (li)solutely necessary to enable the Coun- 
 cil to {'erform the duties imposed upon tiiem. 
 In the present case no such necessity apjie^ireil. 
 
 iJill'M V. 77ic Town of Pic/oit, 7 R. &.('•., 128 ; 
 
 7 C. L. T., 147. 
 
 37 Viet. (1874), c. 104- 
 
 (An Act to facilitate arrangements between 
 Railway (\)mpanie9 and their creditors) — 
 
 The Act is published in the Acts for 187.'i, as 
 chapter 104 of Acts of 1874. As to validity of 
 Act, 
 
 Sw. BRITISH XORTII .iMERICA ACT, 2 & :i- 
 
 RAILWATS, 14. 
 
 38 Vict. (1873), c. 47, s. 1- 
 
 " The. inhahitaiits of Iht Toicn of Truro, 
 within the limits hereiiiafti r ihlimd, f"'c connti- 
 tuitd a tiody corporate and politic hy the name 
 of the " Toicn of Truro." 
 
 Stipendiary Magistrate of the Town hdd dis- 
 , (lualified, because l)y this section he was a 
 37 VICl. (1874), C. 20 and 21— I member of the Corporation, which was to benefit 
 
 These Acts were borrowed from the Ontario by the prosecution. 
 
 Acts, ;{(} Vict. c. ^^ and 4. ' 
 
 *c QUEEN'S COINSEL. 
 
 37 Vict. (1874), c. 54- 
 
 Ciiapter 54, of the Acts of 1874, incorporating '■ Glasgow) 
 Ihe Town of Pictou, conferred upon the Town | 
 Council " power to control the making, maintain- 
 ill),', improving and altering the roads, streets,'' 
 &c. . . . " of the Town, and tiie laying out 
 of new ones if necessary," and also to make 
 bye-laws touching all matters within their 
 authority, but gave no express autiiority to 
 expropriate lands for street purposes, or to 
 make liye-laws in relatirm thereto. The Act of 
 Inccirporation gave the Council the same power 
 in reference to the expropriation of lands for 
 street purposes as were formerly vested in the 
 Sessions. 
 
 Tlie Town Council passed a bye-law for the 
 fxpropriation of lands retjuired for street pur- 
 
 Tupptr v. Murjihy, 3 R. & (J., 173. 
 
 38 Vict. (1875), c. 49- 
 
 (An Act to incorporate the Town of New 
 
 See ASSESSMENT, IV. 
 
 39 Vict. (1876), c. 3- 
 
 39 Vict. (1876), c. 4 
 
 SV' RAILWAYS, 18. 
 
 Set RAILWAYS, 18. 
 
 39 Vict. (1876), c. 11- 
 
 (Act to regulate the sale of drugs and medi- 
 cine) — 
 
 A person holding a diploma and registered as 
 a member of "The Nova Scotia Pharmaceutical 
 Society," cannot indiscriminately vend intoxi- 
 cating liquors in violation of the clear provisions 
 
1419 STATUTES, NOVA SCOTIA. 1420 
 
 of tlie license laws, mid excuse liiiiisolf on the or art' hj'i to a jiirij, or n'ilh hi-i ilirisioii xijictn 
 
 plea of being a ilniggi.st. motion for a iioii-kiiI/ or uki' trinl, or in ttrnsi 
 
 fi'fir<hi<r V. I'cirr, 2 K. itfLji^"). of jfnli/nunl, or for jit'lijminl non oh^iniifi- 
 
 reredii'/o, or upon the. admiiiiou or rijifiimi 'it 
 
 soviet. (1870), f. 49, 8S. 1,2 and 4— l"// n-iili'nn-, he mny njtiihi to th>' Jml.i, .r/io 
 
 Hy leutiuii l,a ("oiirl for tiie trial of civil/'"'"'""- '■m"" M a ruM .jrantiwi him In,,: i„ 
 
 canses in the Town of Truro is constituted, to be «/'/"'«' >o ""■ Sitpnme Court, vhl,h s,,;,/ ml, 
 
 known as tlie "Town Court," to he jjresided "*"''' "'"■''' '*« ohju'lions or iirouwls o/' r,i,/,.ul, 
 
 over l.y tlie Recorder or Stipendiary Magistrate. «'"' "•'"''''' "f"''^ '""'' '*' ''"''.'/' "''"'''. '" '"- '''<■ 
 
 l{y section 2, it is provided, that the olHces of '-'-./ion, >irant or nfwo." 
 
 Recorder and Stipen.liary Magistrate may he ^^''''^ ''"^^ >""''-''■ this section, tlierc wiis ii„ 
 
 filled by the stvuie person, appointed by the '^PF'iil f'""> tl'C 'lecision of the County Conn 
 
 Mayor and Council, and who is to be a Justice on (luestions of fact. 
 
 of the Peace ; and tiiat in case of his inability, Lochhar/ v. IFm-'on ,1 n/., 'A R. kV., :,i:i 
 Ihrongh sickness or otiierwiae, to perform his 
 
 duties, tiie (^)uncil are empowered to ajipoint a 40 VICt. (18*1*, C. 0, SS. 25 and *U - 
 
 suitable person to fill such olHce during his Section .S4, read in coiinection with sect ion •.>:,. 
 
 absence or iiicajiacity. Section 4 provides that in the Act to amend tiie Act to establish Coiuity 
 
 all tines, costs and fees are to form a fund out of Courts (1S77, e. 0), repeals tlie jirovisiou of .sec- 
 
 wiiicli the salary of the Recorder and tiie ex- tion 'I'A, of the Coimty Court Act of lsT4, c, IH, 
 
 penses of tlie Court are to be defrayed, any allowing an appeal from tiie decision of tin- 
 
 deficiency to be paid out of, and any l)ahince ; Judge upon a ([Ucstion of fad. 
 
 remaining after defraying such expenses to lie Din-ar v. Min-jihi/, 1 R. it C, ^4. 
 paid into, the general funds of tlie Town. 
 
 T!ie ilefendaiit was convicted before F. A. 40 VIct. (18J«) 0.40 — 
 
 Liuiience, Stipendiary Magistrate, presiding in , ^„ j^^t to amend the Act to incorpoiaii' tlic 
 
 the Town Court of Truro, of selling intoxicating 'p,,^^,, „f Dartmoutli) 
 
 liquors contrary to law. The Stipendiary Magis- ,^,, ^q y^f^^ (18»;{). C. 1». 
 
 trate was a I'atepayer of llie town, and received 
 
 a fixed .salary as Stipendiary, payable out of tlie |q \•^„^ (\^11) f, 57^- 
 
 funds of the Town, to whicli half the penalty , ^„ j^^l to amend'the Act to incorpoiiitc tii. 
 
 imposed became payable. r,,,,^^.,^ ,,f j^-^,^^. ,;i,^,g„„.) _ 
 
 Nilil, that the Magistrate was disqualitied l)y ,^«« ASSFSSMFVT IV 
 interest from acting in the inattei'. | 
 
 rui>i„r V. Mnrph,,, li R. & (1., m. ^j y^.^^ (jg-^,^ ^^ g^ S, g_ 
 
 „„ ... ^ ,^„_„ wv - .... "Xoiirllhslnniliini mil/ iloiihlxnti'ii'l hirin/on. 
 
 30 ^ let. (18I6),_e. 40, S. .1 and 13- j ^, ,„ ,,, ^,^„., ,. „/„„,; ^onnti, Com-t Ju,i,, or 
 
 (.Furisdictifiu of Town Court of Truro) — ^ . . <■ ,i r ,•„.•• „/.,„/ ,;)(„,.^ /„ 
 
 ^ ' CoDimit-iioiirr for fhf rdut of iiiiolnnt ihiiior^ to 
 
 Section •_'.■{ of 4th R. S., c. T."., .lirects the ^.,,,^^.,, i„,ol,;nt ihhtor^ 'in 'all mv,,- ,rh.,r .urh 
 
 penalties under that cliajiter to be reeovere.l in ,,^,^,^,., ,,^,.,, ,,^^„ ,.^,,,^^.,,, ;,, ,,„ c"^,,,,,,^ Co»rf.s-, 
 
 the same mannrr and with the like costs as if ^,.^^,.,, ^,,„ ^,„„„,,, „,-,;„, ^,,,.^ /^ ,.taUish C.„<i,ii, 
 
 they were private debts. The byedaw of .Ith Courts, Ih^'yonJiwis in .virh rr,..,-.^ shall h, hid 
 
 March, IHTH, approved by the Covernor in Conn- ,^ ,^^, ^.^/., ^^^^^, ,,;„,,,-„,,^ „„,, „„ „,,;„„ /„ „,,, 
 
 cil, and having the foice of law under s. 13ofc. ^,^,^,., ^f^^j/ ,„.,., afltr I.,- tnbi, or siist„in,,l, Uij 
 
 49 of 187(5, recognizes the jurisdiction of tlie ,.^^^^„ ^j. ^,^,^ ^.„,;, pror„,liii;,s h.i,,,, ilhijal, 
 
 Town Court over offences in violation of 4tli • ,■ i «•;" 
 
 III ml III or roiil. 
 
 R. S., c. 7o. , t> , ,, 0-. JMI, that the Act was not iillrn nV.^tiie 
 
 In ri frasfr, 1 R. & (.., .S,)4. . , ' . , , , 
 
 Local Legislature, and that sec, was retro- 
 
 30 Viet. (1876), C. 74- , '*^'^''^'' Johnston v. Poi/ntz et al., 2 R. & <i., !!«; 
 
 *^ RAILWATS, r> & 18. ' Cuir,i> et al. v. Caldm-.U, 1 R. «: (i., 74. 
 
 40 Vict. (1877), c. 6, 8. 25- | 41 Vict. (1878), c. 0, s. 14- 
 
 "/« rase, either ]>artij, in a cause in any of ''Xothintj in the 2iitli, 26th or 29th seetimis 
 said Courts where the jud<jme.nt obtained is orer of the Art hi'vr.htj amended shall hr cniistriim 
 forty dollars, nhall he dissatisfied vith the deci- to prevent the Judge in his discretion nUoirinil 
 aion of the Judije upon any point of lair, or with an appeal upon any point of law or praetice "i 
 the charye to the jury, where any fart or facts is any matter tried or argued before the VdmH of 
 
1421 
 
 STATUTES, NOVA SCOTIA. 
 
 1422 
 
 jH(liir,riHlin)itih thf fimouiit ill coiitrovt')'s>imnii 
 
 hi h SK tllllH flirllj lldlllirx, such jlllhU (if lllH' to 
 
 hi' siirriiirtlij .sliitnl hij hhii fur tliioiiiniuii uf 
 (hi Ciiiirt of Ap/iciit ; tniil tlic Jinliii' h hinhij 
 iiuUinfiziil to i/rmit mirli (iji/wdlK in liis dixrri- 
 limi iijinn Kiirh tm'ms (ID to sn'Hn't>i o)' iitlicnnisr 
 
 IIS III' Xllllll .Sll' jit." 
 
 l)ufL'ii(laiit ol)tiiiiie<l a rule iiist to set asiilc a 
 jiulgiiit'iit, l)Ut tlie (.'(lunty Court Jiiilge dis- 
 cliiirgi'il tlic rule on the grouml that it had not 
 litcii moved for witliiii a year. 
 
 JI'liI, that an appeal lay from nueh deci.sion 
 uiiilir the ahove section. 
 
 Aiiilirsoii V. Tat/lor, 'A K, & ('., .ViO.. 
 
 There must he something; to indicate to tlie 
 Court c)f A])i)eal that the a|)peal is sent u\\ hy 
 till- .liidge in Ills discretion. 
 
 MiKii-du V. Oiih-(i),i, .S R. Cm (;., 'JO!). 
 
 41 Vict. (1818), c. 1«- 
 
 s < 15 Vict. (1852), c. 13. 
 
 11 Vict. (ISIS), c. 35 - 
 
 (nnnnissioners were appointed under i'. .'{.">, 
 Acts of 187s, to re-appraise lands taken for 
 iiihvay purposes in I>ii;liy ('ciunty, and it was 
 pinvided hy the Act tliat the re-appraisement, 
 "together with the costs heret.lore incnrred," 
 .siioiild be a County charge. 
 
 Hilil, that the co.sts for services hefore tiie 
 Coiiitnissioners for re-appraisenienl could not he 
 tuxfd, as the Act pioviiled only for tli.>se incurred 
 piinr to its i)assing. 
 
 In ri !!'« >Vr m Co)iiitiiss linilimy, 
 (X pari I Ha nil), 1 R. A- (i., 170. 
 
 I'iVlct. (18J9),C.l 
 
 Acti- 
 
 (County Incorporation 
 
 /■'/• Weatherhe, .1. — Confers upon tile Muni- 
 cipal Council and their oiKcials, the power and 
 iuitliority which the Orand Jury and Sessions, 
 aiiil their ollicers, formerly had. 
 
 l!y sec. 1 of cliap. 'Jl R. S. (4th series), the 
 liraiid .Jury shall nominate three persons, one 
 of whom shall he apjminted hy the Se.ssions, 
 Ticiisurer, "who shall give a hond to Her 
 Miijesty, with sureties, to he approved of hy the 
 Ciistos, in a sum to he named hy the Sessions, 
 and siiall he hworn into otBce." The contention 
 is, tliat hy this legislation, the hond is reiiuired 
 to he to Her Majesty. By .section H4 of the 
 County Incorporation Act, read with sub-section 
 30, tiie Municipal Council may make regulations 
 for the management and g(H)d order of their pro- 
 ceeiliiiga, and may make bye-laws for, among 
 other things, defining the duties of Municipal 
 officers, and the manner in which they shall 
 
 account for money received or exiiended by 
 them. 
 
 And, hy another section, all Acts, and parts 
 of Acts, inconsistent with the Count}- Incorpora- 
 tion Act, arc repealed. 
 
 One of the bye-laws of the Municipality in 
 force, read as follows : — 
 
 " The clerk and treasurer sluill, eadi year, 
 give bonds to the Municipality by two suHicient 
 sureties, in Clie sum of !*.'{, 'K^l for the faithful 
 |)erforinance of tlieir duties, 'j'he bonds herein 
 mentioned shall be subject to tiie approval of this 
 Council." 
 
 1 am of opinion tliat this bye-law is not ultra 
 ririi, as was contended for defendants. And 1 
 do not think that the wonls "give bond to the 
 Municipality," are to be construed, as was con- 
 tended at the argument, as rei|uiring that bonds, 
 in which Her Majesty is the obligee aic to be 
 J lodged with the Municipality merely, but the 
 words indicate that the Municipali' " is to be the 
 obligee. It is to be observed in this connection 
 that the Sessions, not possessing a corporate 
 existence, was inciiiiable of hecoining a party to 
 a bond as the Muiiicijiality is. 
 
 Mnnir'iiul'ily oj Shillnirni \. .^f.iriliall, 
 
 7Pv. & <;., 171. 
 
 Sii BOXD, -24. 
 
 42 Vict. (1819), C. 1, s. «0- 
 
 T/ip Muiiiripiil CuunciU shall appoint n mfficient 
 ntiiiiher of pound kecperx, fence vieirers, overseers 
 uf the hi(jhira!is, road surveytns, and of sueh and 
 [ as tnani/ officers as may he necessary for carryiny 
 into effect any of the provisions of thin Act, or of 
 \ any other Act of theLeyislature confuininy any of 
 \ the sn'y'ecfs placed under the Jurisdictions of the 
 ' Conncils or of any hye-law of the Municipality ; 
 and in like manner to displace any of them and 
 ap/)oint others in their room, and to (uhl to or 
 . diminish the numher of them as often as the cor- 
 '■ porafion shall see fit, and to reyulate their powers 
 and limits wherein they sh(dl he exercised; and 
 shall re(julate and prescrdie the duties of all 
 officers actiny under the authority of the corpora- 
 tion, and the penalty of their makiny default in 
 the performance of such duties, and shall settle 
 the remuneration of (dl such officers, in alt cases 
 ichere the same is not settled hy an Act of the 
 Leyislature, and the providiny for the payment of 
 the remuneration which, by Act of the Leyis- 
 lature, or by the bye-lnws of the Municipality, 
 may he provided for such officers ; and shall 
 reyulate the bonds and recognizance, or other secu- 
 rities, to be yiven hy such officers for the faithful 
 (lischarye of their duties, the penalties for refusing 
 to serve in any office, and for the infringement of 
 any hye-law of the Municip(dty." 
 
1423 
 
 STATUTES, NOVA SCOTIA. 
 
 1424 
 
 Ptr Rigby, J.— The Councils have not power | Affiilaviiof ilefendant contained the followinj,': 
 
 iindtr this section to limit the term of ojRce of i " I am not and never was intleltted to tlic pliun- 
 
 County officials, indeiu'iidenlly of tiie term of tifT, us alleged, and that I have a gooil ilcfinco 
 
 office ua it existed under former legislation. | \\\mn the merits, and I believe 1 will he aijlf lo 
 
 Lttlntdj v. Dillon, li R. k, <i., 14C. ! sulistantiate a good defence on the trial heruiif," 
 
 //(A/, that defendant had not " inailf it 
 
 42 Vict. (18J9), c. 1, 8. 16- 
 
 (Actions l>y or against Municipality to he 
 brought in corporate name, method of service, 
 &c.)- 
 
 This section removes what the .Judicial Com- 
 mittee in the case of llorow/h of IMhnrst v. 
 J/'7'Air.soH, 4 Appeal Cas., •_'.")(), held to be the 
 principal objection lo tlie maintenance of the 
 action in h'lisxill v. The Men of Ih ron, '2 T. R., 
 liHT and some other cases in jiari mttl> rin. 
 Mi(Jiinn-ii: v. Thi AIiuiirijKilifi/ of St. Mary'*, 
 
 .-. R. & (i., 4!).3. 
 
 42 Vict. (ISIfl), c. 2, 8. 3 - 
 
 "/« (til cdsis irlii ri (I 'ti/enilant sha/l lie arri\(- 
 III on (I idjiiun issuiil hy « Jn'<iiri or Jiislins of 
 the Piai-f, it nhallhe vci'ismri/ for the /ilaintiji', 
 in thi rijfiildril on irhirh said iitpiwt niiiy lie < 
 i/rantiil, to s(t forth /lartirularly the i/rounili for' 
 his lieliij that dejendnnt is aliont to hare the j 
 Cnnntij, in irhirh msi it shall lit disrri.tionary 
 with thi .histirr to issne a summons or cajiias " 
 
 Capias issued ity Magistrates set aside on the 
 ground that it was issued and the defendant ar- 
 rested uniler it witliout an atlidavit of the 
 grounds of plaintiff's belief, as re(iuircd by tiiis 
 section. 
 
 appear " that he had a good ileftiiee. 
 
 Litres V. Jhirliw/, 4 R. & C, I'.'s, 
 
 42 Vict. (1S79), C. 39 - 
 
 Htld, intra riris the Local Legislature. 
 
 .S^" BRITISH NORTH AMERICA ACT, I. 
 
 i Pir Hitdiic, K. ,1.— Such a corporalimi is 
 the Halifax Vacht Club would not conic iimifr 
 
 ' the operation of the Knglish Winding up Act 
 and neither that Act nor ours seem« as iqipli- 
 cal)le to clul)s such as this as to iorporali(iii> in 
 
 I general ; but the wording of our Act differs Iri.m 
 the Knglisii, an<l in teruis seems to embrace tliis 
 club. The second section is, ^^this Aft slmll 
 a/i/ily to nil inror/inraled rom/ianii ■<, assoriaiimii 
 or fliihs inrorpwated liy the l^niislalnre of ih> 
 
 , Prorinre o/\orn Sco'ia, or niidi r the aulhorliij 
 of any Art of this Prorinn ," it-''. 
 
 //'/'/, that the l'rr)vincial .\ct in reference to 
 winding-uj) of companies, differing from tiic 
 
 < Knglish Act in that it was ex])ressly maile ap- 
 
 I plicable to clubs, could be invoked for tiie pur- 
 pose of windinguj) the Halifax Yadil Club, I'lit 
 that, as there was no inilividual liability, lunl it 
 
 I was admitted there were no assets, the i)riiyti' 
 
 ^fcL,au v. Jh-Kay, 1 R. &(;., 383.1"^ *''« l'*^^"^'"" "'"'"''' ""^. '* b"'""*^^''- ^'^ '' 
 
 would only create needless litigation. 
 
 In re The Halifax Yarht Chili, R. K. j)., \::, 
 42 Vict. (1819), C. 66 
 
 S" RAILWAYS, 4 
 
 42 Vict. (1879), c. 69 and c. 70- 
 
 S.I RAIUV.ilS, 1^ 
 
 43 Vict. (ISSO), c. 2, s. 8 - 
 
 •'And the Clerk ahull hare pinrer, in enxe >if 
 
 42 Vict. (1819), C. 12, .s. 1- 
 
 " In no canw instituted for breach of the 
 License Law for the sale of into.vicaliny liquors 
 shall a writ of certiorari issue, unless the jitirty 
 applyiny therefor shall make the same affidavit j 
 required in case of appeal, viz. : ' That he dtd 
 not by himself, or his ayent or clerk, with his 
 hnowledye or consent, sell the liquor contrari/ to 
 law, as charytd in the summons.' " 
 
 Held, that the .Statute did not apply where 
 
 the Magistrate before whom the proceedings ! «''•"''«'•£ f>-<»'t ^'onu', sickness, or l.eimj othr- 
 
 were had, was dis.jualitied by interest. i '"■«'' ««""'' <" "«''«'^ ^" '"■■" ''""■'•"• '" "'''"""' 
 
 Tapper v. Murphy, .3 R. & (i., 17.3. ' " '^''/"''i/ ^' <ict for him, for whose comlm-l he 
 
 _ I shall he responsible." 
 CERTIORARI, .31. . j^^^ Deputy Clerk of the County Court liciil 
 authoi'ized to sign writs, although the Clerk be 
 not ill, absent from home, or otherwise lumlile 
 to attend to his duties. 
 
 Hank of Nora Scotia v. McKirroie, 
 
 .') R. &<l.,i75. 
 
 Held, that the onus was on the party seeking 
 
 .SV. 
 
 42 VIct. (18«9), c. 19, 8. 21- 
 
 " When security for costs is applied for upon 
 the yroutul that the plaintiff is beyond the Juris- 
 diction of the Court, no such security shall he 
 ordered unless it be made to appear by aff^lacit 
 at the time of such application that the defendant 
 
 lias a (food defence to the action on the merits, to r.void the writ to show that when it wiis 
 rtjirf that such application is not made for delay." \ signed by the Deputy, the Clerk was neitliir 
 
1425 
 
 STATUTES, NOVA SCOTIA. 
 
 142G 
 
 " Slick, iihsent from Ikhiu', ikh- (itlicrwitie unaMe 
 t<j iittentl to his ilntics." 
 
 Kamlirl: v. Arthur, "i H. & (i., ■J.SO. 
 
 43VICt. (1880), 0.2,8. II 
 
 (Dt'finus jurisdiction of ("omity Court) — 
 '•The Count;/ Cnurtuhull huri' Drdjinal juris- 
 'U'li'iH inul hiihl jilriis ill (ill iirti'ius tr vniitrnrtu 
 
 irhi re thr ilrht iir (hniidi/r (liiis IKit I'tCiril j'liltr 
 
 Itiniilrnl iliilhirs, tnul in nut Ii-kk than lirrnty 
 ihilhirx ; mill in 'ill other (Vtionn whirr thi' 
 'hiiiiiiijcn vhiiincd do not cj-rml two hundred 
 'ii'lhirti," tt"'-. 
 
 *' PKOIIIBITION, -'. 
 
 43 Vict. (ISHO), c. 2, s. 43- 
 (l'roccc(liii{,'s in cii.su of ovcrliolding) — 
 
 ^ v< oth K. S., c. lOi, 8. 43. 
 
 43 Vict. (1880), c. 2, S8. .11, 32, 53 mid .15 - 
 
 Cf. 5th R. S., 0. 105, 88. r.2, 55 and 56- 
 
 /'';• Hig1)y, .). — In tiiu caso of Alidriirs V. 
 IMiidirx, 4 R. & (i., 'i.'JO, I took occasion to sug- 
 gest lliiatit WHS worthy of cousidoratioii wlicthcr, 
 in trials witii a juiy in County Courts, other 
 tliiui those spuciticd in section "i") of tiic Act, the 
 pi'iiicchire wliicli was adopted in this case was 
 tl'.c |iro|)er one. The hmguage used in section 
 .'i,') is in marked contrast to that employed in 
 -eition ")!, wliicli, instead of providing, as tlie 
 fiiriiier section ch>es, tiuit the cause shall l)e 
 tried hy a .Jndge with a jury, enacts, that a jury 
 is to he empaimelled when the .Judge deems it 
 pioper to have any fact or facts coiitroverte<l in 
 the case tried hy a jury. And, in the earlier 
 part of that section, it is provided that, when 
 there is no jnry, the .Judge shall "decide the 
 tacts as well as the law." From which, it is 
 .ippart'iit, that the Legislature intemled to mark 
 the distinction hetwcen a decision ii])oii the facts, 
 itnd a decision upon the law. .So sections .VJand 
 "lS refer to the jury as emjmnelled to try the fact 
 or facts, the former section providing for the 
 posti><)ning of the further trial of the cause to 
 tiie (lay for which the jnry has heen sunmioned. 
 It seems to me very necessary that this limitation 
 "f til'.' power of the jury to pass only upon con- 
 troverted (jnestions of facts, should lie kept in 
 >ie\v. It is important that the .Judge Iielow, 
 as Well as this Court, upon appeal, should know 
 precisely what view the jury took of each coii- 
 trciverted fact. Unless the .Judge hchiw had 
 ■Hell information, I do not see how he could 
 «ell exercise the power of setting aside their 
 tiiiiliugs on any fact or facts suhmitted to them, 
 «heii dissatisfied with such finding, as provided 
 i"r in section 50. 
 
 Rhoiks tt al. v. Pntrid; 6 R. & (i., '2r,i. 
 
 j 43Vlct. (1H80),C. 2, 8. .15- 
 
 j Qiuure, whether juries, in eases in the County 
 
 I Courts, other than those mentioned in section 
 
 ' ■"> of the Act, should Ik^ instructed to give gen- 
 
 I eral verdicts, and whether the projier procediu'e 
 
 is not tfi olitain their tindings on the controverted 
 
 facts which the .Judge ilcenis it proper to snli- 
 
 init to them, after which tht! judgment in the 
 
 cause shoidd lie given liy the .Judge irrespective 
 
 i of the jurv. 
 
 j ", J (,(/;-. »'.s v. iMiidu-s, 4 H. it (I., •_•;{«. 
 
 I 43 Vict. ( 1880), c. 2, s. 50- 
 
 ••All (iffld'icit.i to lie nsi-d in the Conntij Court 
 or lii'J'ori: mil/ Jiidiji' thereof, mmj hi' sworn he,- 
 I fore any Judi/e. of the ('onntij Court. A'r. . . . 
 ! mill when sueh njUdnrits ore uinde hij imrlii s 
 residinij without the I'rurinee, they shull l-e 
 swio'ii us jirorideil in sielion ■'>■'{ of ehupter .'>■/, 
 li'erisiil St'ltutis." 
 
 An atiidavit to .set aside pleas was sworn 
 without the Province before a commissioner ap- 
 ]iointed to take attidavits for use within the 
 Province, hut was not authenticated liy the seal 
 of the connnissioncr. 
 
 //i/d, that the atiidavit could not he read. 
 
 Lirin if al. v. Ilrlniid, ."> R. & (i., L'lW. 
 
 43 Vict. (1880), c. 2, 8. ;«-.1th R. S., c. 105, 
 
 8.75- 
 
 (Motion to (|uasii ajipeal to Comity (^ourl) — 
 Ilild, that a County Court . I udgtMiad power 
 to amend an atiidavit for appeal finni the .Magis- 
 trates' (\)urt which was not headed in the cause, 
 and hail not the words " liefore nie" in the jurat. 
 The .Judge of the County Court was satisfied 
 that the defects occurred through inadvertence, 
 and without the fault of tlie appellant, and with- 
 out any intention to evaile the re()uirement of 
 the Statute, Imt dismissed the appeal from tlie 
 Magistrates' Court (ui the ground that he had 
 no power to amend the athilavit. 
 
 IVoodirorth V. /;(«/<, ti I^ & (J., •_'!)."). 
 
 43 Vict. (1880), C. 2, s. 83 -Cr. .1th K. S.» 
 
 0. 105, 8. 81- 
 
 (Summary causes must lie so marked) — 
 .Moaning of the word " del)ts " discii.s.sed. 
 
 " Actions for the recovery of debts '' comprise 
 
 all actions ex eoiitrwtii. 
 
 IVomlloek v. Diekin ti al., R. & C, 290. 
 
 43 Vict. (1880), C. 2, 8.86- 
 
 (Xo pleadings in summary cause)— 
 (irounds of defence cannot he demurred to. 
 
 Ste 4tb R. 8., C. 94, 8. 121. 
 
1427 
 
 STATUTES, NOVA SCOTIA. 
 
 142.S 
 
 4»Vlct. (1«80),c. 2, s. 81- ] 
 
 •• '/'/((' I'V/V slnill hitri- iinlnrnid thcvrnn or 
 (Uini-.i-ei! thi'i'itn a unticc "/ //•("/. iniil n nntirc 
 rfiiuiriiiij thr ih'/riiihnit. vithiii tin' prriod 
 thiviiii Kiiirijlril. Ill jtic <ni(l Kirrt' IiIk iiriiinnlti 
 iif ilifinri- ( vhirh hiinj hf in tlir fiiriii nf the 
 niitii-i' In iijijifitr mill pjiuil Ini'iln/in'r nsi'il), 
 mill til)' ilifiiiilmit kIiiiII wd hv ohUiiiil tn pn- 
 pm'i' fur triiil. '•/• ^' jUr i>r sr-rrc thf ijronnds 
 of his ih'fi'licf, nvtil xiirh imtiris linrv In'rlt 
 ftorrcil the rnjiiiKitr liiiii'." 
 
 l)ufi'ii(liint sought ti> set iiside a (li-fiuilt on tlu' 
 gi'i)\niil lliiit there was ud notiee of tiiiil iiichir.sed 
 on the writ of sumiiioiis iiltliough tliere wiis 
 H notice to iipj)eiu'. 
 
 Ifi/il, leveising the juilgnient of the County 
 Court .Judge, tiiiU the default was reguhir. 
 
 Iliii"( V. ILrim^, .") It. iV: C., ."i,V2. 
 
 43 Vict. (ISSO), c. 2 s. 09 -Cf. .i»l R. S., 
 
 c. 105, 8.91- 
 
 (. Judge's decision in County Coiut may ))0 
 apijealeil from) — 
 
 //'Id, tliat under this section tiu' Supreme 
 Court, on appeal, liad tiie right to decide ai)peals 
 on the weight of evidence. 
 
 Miirphij V. Homo, •_' W. k (;., 17."). 
 
 43 Vict. (1880), c. 2, s. 100 and 103 
 
 S. KHi. '■ ft' Hii' Jiidiji- .sliiill rr/iisi' In ijrmit 
 such ridi-. or nrdir (i.e. for appeal), und the pm't'i 
 dfsiriiii/ to iijipfol nhidl vithin fir/ht dKi/n from 
 thr dii'i on vhirh tlu' di'dsiun. jiidijmciit. ror- 
 dirt. rnlc. order, or rhnnji'. or rnJinij uppi-ilrd 
 froiii slodl hiirc heen miole, or KiirJi ixti-iolid 
 tiiiii' thcri-fifter ok the Koid Jiuhji- shull in liis dis- 
 rrition olloir, jili' a Imiid tn thf other purt'i in 
 sii^firient aurcties. in siirh riiiKonidilr mnoiint 
 OS the Judi/c liioij diri'Ct. to respond thr judij- 
 rncnt on such njipeol. no jndijmint shall he 
 fntiri'd up. hut II rule or order stidinij the 
 ohjeetions or i/rounds of nppo(d shall puss." 
 
 ■S. lO.S. " Upon such appeal heiu'i perfected, 
 and the hand, inhere a hond is ijiren. heimj by 
 hihi approved, the Judi/e sh'dl certify to the 
 Supireme Court iinder his hand the pleadinijs 
 in the cause," 
 
 Where the hond given was merely to pay the 
 
 costs of appeal, and not to respond the juilgnicut 
 
 on appeal, so as t(j cover costs below, on motion 
 
 to dismiss the appeal the Court ordered a new 
 
 iiond to he filed, appellants to pay the costs of 
 
 the motion. 
 
 Taylor v. Gavin, G R. & (i., 296. 
 
 Per McDonald, C. J.— 
 
 The " apin-oval of the Judije" could extend only 
 to the amount to be secured by the bond, to be 
 fixed by him as re(|uired in s. 100, or at most 
 
 I to the further approval (<f the sureties nthri'il. 
 
 ' It is no i)art of his functions to see tii.it iliu 
 
 i security is given in due time, or tlmt tin- 
 
 ' bond is jiroperly drawn or executed, or tli.il ii 
 
 ' embodies the recitals and j)rovisions necessiiry tn 
 
 make it a valid seeuiity. Until ii sutlici iil iiikI 
 
 valid bond be tiled, the .ludge below ciMiiut 
 
 grant the certificate required by the .St;itiitc, 
 
 and without that certificate the Court of Aiijieal 
 
 has no jurisdiction. A motion to set asidf tin 
 
 appeal on the grouiul of defects in the Imnd. cm 
 
 pro|)eily be made in the Supreme Court, althoiiL'li 
 
 the |)apers have been certitied and the IhhhI 
 
 approved by the County Court .Judije. 
 
 j W'arson v. Ifnoy, .S K. ,!. C.. i;i|. 
 
 I 43Vlct. (1880),C. 2, s. 101- 
 
 " // shall he the duly of i lie ap/ellaiii /r, n,, 
 
 I that uH the papers and doeiini' nis und> r /c- fou. 
 
 I trol, ntcessary to the hrarlmj of the appi nl. ',. 
 
 ' fili'd in the Coiiiily Court in the Connltj n-hi v Ih 
 
 ' eaiisi tens trial, or the riili:, ord'r, or dfi^iui, 
 
 ijlvi n, and Ihi Cli rl: shall immediately rc(».s. //(./» 
 
 to If fled in the Supn m< Court In Hrdinix-, 
 
 1 The Sujirimf Court may ami ml the onhrfnr 
 
 j appeal, or etrtiricao of appeal, in any },iii-ii>'\h 
 
 I lars irhivh the Justice of th< ease may reijuin, ur 
 
 j wift?/ return thf appeal papers to Ihi- Judiji from 
 
 ' lehom sneh apjual is niaih for amindmmi, nn'l 
 
 such Jiidiji' shall Art''' pon-ir in siifk ewi In mnl:- 
 
 any "iieh amenilnn n>, and to ri-lranind> 'le 
 
 /mpi rs to thi Supn nil Court.'' 
 
 The rule for appeal should be certitied. A|> 
 peal papers sent back for that ])uri)ose. 
 
 U'inchisin- V. Ilohlei , '_' H. .'v: (.., >v 
 
 /'(.)• Wcatherbe, J.,— I do not think tlie Ad 
 allowing amendments was intended to liivc an 
 IX po^i faelo application. 
 
 Moiton 1 1 al. V. liriiinan, '1 R. il' (i.. MiJ 
 
 43 Vict. (18801, c. 2, s. lOI-Cf. 5lli R. S.. 
 
 c. 105, 8.96- 
 
 (Appcal niay be granted by County Cmiit 
 Judge in any matter tried or argued liefme 
 him) — 
 
 Appeal allowed from decision refusing to 
 
 amend the atiidavit for appeal from Magistrates' 
 
 Courts. 
 
 S(;t43Vlct. (1880),C.2,s.;». 
 
 Woodworth v. Innis, 6 R. & (i., •-'!•.■). 
 
 43 Vict. (1880), c. 2, s. 111- 
 
 (Court of Appeal in Indigent Debtor matters) - 
 
 See APPE.U, IV 
 
 43 Vict. (1880), c. 13, s. 6- 
 
 " In case, at the end of said session any caw" 
 remain vpon the docket of causes tuttred f "' 
 
1429 STATUTES. NOVA SCOTIA. UHO 
 
 ivVinnnil llnrfnl, iur/vilhi,/ th rmi.i.s , ,ih ,■<</ 44 Vll't. (1881), €. 1, S. t (f. 4» VICt.(lHS«i, 
 
 (liiriii'j ■idiil SI .iiimi ir/iii'/i linfi not Im n (iriiin.il or c. 25, ». 1- 
 
 Olhiririsi'ilisjioiiil of, n tissinii or si'tiloni o/ sal)/ " Xo jur^oii shall In ilir/.iln I'lmiirlllor )'7io 
 
 Court shall /ifxuh'nqui iil/i/ III III af /fall fax from hohls thi ojliri o/ Coinih/ Cluk, Coiiii'i/ Tnni- 
 
 linn lo limi' lii-Jwi flu in rl rii/iilnr sissloii fhirmf, un r, nr Collir/or of Hal i^ >'/ 'iii,'/ khnl, rnnl if 
 
 irhi II a siijliflinf tniniliir of Jiulijis an nrnilnhli' ant/ snch im-son Im iiomiiinlnl j'rr Ihi ojliri of 
 
 fur ^iirh /iiir/io-ii, ii-hi n Ihi i-iinsis rmirtininii n/ion Coiiiifillor his uomiiinlion shall In roiil, iinliss 
 
 ■mill iloiki I shall III rnlliil ami ari/inil or olhi r- In fori Ihi rxiiiration of Iht linn far tiiakiiiii siirh 
 
 irisi i/is/iosiil of; <(((•// sission or sissions to In vominalion hi risii/ns siirh ojh'n so hi Id liij him. 
 
 riilliil III/ an;/ /onr of saiil Jinli/is as hirn'nln. Any CoiinriHor irlio shall am/il an;/ siirh ojlln 
 
 I'v II /iroriiliil for." iiniliran;/ M iiniii /ml Coinn-il shall tin rilnj ranili 
 
 I'ikIlt ail onlcr ]nirslliilit to tlio Aft of I8S0, his sml as sm-h Coiini'illor, :inil /(/< /iliin shall In 
 
 |iicivicliiig tliiit a sfs.siciii slioulil lie lielil for sii/i/,lii,l in Ihi sani, wanm r as if h' hinl n siijiiiil 
 
 "calling, aigiiiiiL', and ilis|posing of tlic causes his s,al." 
 
 miiaining on the ilocket." A Seerelary to School Trustees is not ills- 
 
 //'/(/, that the only motion that eould Ipe en- (|ualitie(l liy tiiis secti'Ui. 
 
 ti-itained, except motions relating localises (jn Huhlsn-nrih v. /.'»>«//, 4 li. k<''., 1^4. 
 the docket, was a motion for admission to tlie 
 
 Hu 44 Vlft. (1881), c. 1, s. 18 and «ft - 
 
 III A'hnissini, In th. liar, •_' H. .V ti., .'{(It); .\FaUes the decisions nf the Judge ImIow in 
 
 •_ ( . L. l.,!Mi. iiiiiniiii)al election trials final. (Ainendi'd, 
 otli l!ev. Stats, c. '',, sec. !t.) Sec. (»!» gives 
 
 43 Vict. (1880), C. 20, S. 26 - apjieals " from every order and decision of the 
 
 ■•All .suits for inih-hinitij for anij ihimiKjr r,r .liidge." (.\niended .")tli lU'v. Stats, c. .^T, 
 
 iiijm'i' .vintahii'il III/ riiisoii of the railvnii .vhull •''cc. tilt.) 
 
 In inxtililti'il in'thili .th- luinilhs licrtaftir thi !f''<'< tl'^'t the latter .section must prevail. 
 
 ti nil of .siirh siipjio.sriJ (hiniai/c .xii.ilaiiiid, or if When two sections of an Act conflict, the 
 
 lliin- III' roiithiuiilion of ilinniiiir, then vithhi latter must prevail. 
 
 ,v(/ moiitlis ncyt nftir thi- iloinij or i-onimittimj M'lliiihn v. Morrison ft al., ~ R. i<i (;., 00. 
 sui'h ilamaiji' rcasix. and nut nfli rn'iirds." 
 
 If'ld, that whether or m.l this .section 44 VICt. (1881), f. 45, S. 1 - 
 
 cnuld hee.xten.led to include acti<.ns for hivach '•^'•t to amend the Act to incorporate Town 
 
 of contract in I'e.specl of injuries to gooils con- of \\ ind.sor) — 
 
 tiacted to be carrie.l, the limitation had no effect •'^- ' ■ disorderly driving. i)enalty for. &c. 
 
 on the present case, in which the l.reach was the Contract to race <m street in contravention of 
 
 iR".'lect to provide proper appliances, or to use ''''» section unenforceahle. 
 
 pnipir care, in the hainlling of luoperty intended ' W-*-"*-^"* '• 
 
 ... he placed on the company's ear.s. ^. ^.,^,^ ^^ ^ ^^ ^^ ^^^ .„, ^ ^^^ ^ 
 
 Whitman v. 1 hi Ihsti-rn Conntn-s I! y. Co., 104 O T TX R 17 
 
 ') R. .\: (i., 40.'). , ' ■..'", ^ „ 
 
 (( onnmssioner s power to allow cfrfiorari) — 
 
 A writ of nrtiorari was allowed by af'ommis- 
 
 43 Vict. (lS80l, C. 20, S. 70 and «8-(l{all- sioner, Imt it was not shown that there was no 
 
 way Act) .Supreme or County Court dudge in the County. 
 
 (Cattle at large on highway killed l)y passing Hi id, that the writ must lie .set aside, as it 
 
 tiiiiu) — was not shown that the Commissioner had juris- 
 
 'S''( KAIL^f AYS, 1-. diction to issue it. 
 
 : /''*• McDonahl, C. J. and Weatherhe, J., that 
 43 \ let. (1880), C. 22, S. 2— [ the indorsement, " allowed, security having ))eeii 
 
 ".!// thi h;/i -lairs and ordinaiins of tin City first given and filed," was not sufficient. 
 
 of Ifali/ax, a/iprorid li;/ thi florirnor in Coiiiiril Corlult v. O'lhll, 4 R. & ••., 144. 
 
 j'fi rioiis to thi: jiassini/ of this Art, nrr hi^rili;/ 
 
 raiifiil ami i-onfirm'd." j 45 VICt. (1882), f. 25, 8. 19— 
 
 "This section cannot he held to have a retro- I Penalty or forfeiture imposed hy chapter 81 
 
 active effect, so as to confer jurisdiction upon of Acts of 1804, or by any ordinance of the City 
 
 'lie Police Court to entertain a suit over which Council, may be recovered in the name of the 
 
 it had no jurisdiction when the suit was insti- i City of Halifax before the Stipendiary at the 
 
 fiited. I Police Court. 
 
 Th( City of Halifax v. 0'CoH«or,3R. &(i., 190. i The City of Halifax v. Broim, 6 R. & (i., W.i. 
 
U31 
 
 STATUTES, NOVA SCOTIA. 
 
 14:{2 
 
 46 Vict. (IH83S C. 11, ». l-5lh R. 8., C 02, //'/''. '''"•'« '•'>'•' "f '•'« I'n.vinuml LegiHlaturo 
 ^^ 4 _ uiiiUt sec. Hi', sulisi'o. !» of tlif 1{. N. A. Act. 
 
 " E,;ry Ml of ml> or .halld morl;,w,e of prr- The City of /Mi/ax- v. inMu-n .|.s.»m».v To,, 
 .■<oiial />ni/iirfy, olfur than mortijiuii s to .vciire', " '^' 'v<.., .Is,. 
 
 fuhtrf adrnncfJi, of mnrliini/fn for leruriuij thr. \ 
 
 mnrtiiwifi winiint lh< iinlnrs, iii< iit of any hi/lx or 48 VICt. (1885), C. 28 — 
 /iroiiii.'nory iioh x, or nihi r linliility iwnrrnl for (,\ii Act to eimlile tlie (Jovi'i'iiiiiciil nf N'nvii 
 ih> morfi/ni/rir, shall hnaflir I" wfompaiiiid Inj Sciitia toiiiiproju'iiitel.iiiils for ])ul)lii; |)iii|MiNf.j) — 
 an nllhlaril of I hi /larly iiiriii'i Ihr sniiii, or Am />,,■ /{itrhii , ./. -C'liupti'V '2'.\ of the Ails «i 
 ai/cHt or ntformy iliily aiilhoriznl in Ih'it hilinlf, 1S85, wliicli wiih ])as«fil nftor tlii« ivitioii h;is 
 ih'it ihi nmoiiiif sii forth thin in at luimj th I'on- coniiiu'iiceil, is not iiiikU' rotroHpeutivo, iiml ilncrt 
 siili ration thin of, irai or m )u*ily and honistiy not in my opinion ii])ply. 
 dm and owimj hy the ijranlor to the. ijrnntt'f, and Kiarmy v. Dirkson ft ul., 'id \. S. H., 
 
 that thf lilllof.i'ili orrhattil mortiimji n-a-^txinitid \ 
 in ijood faith and notforthi /mriiosi of protn-tinij \ 
 lh<: /irojiirty mrntionnl Ihinia wjain-'t thi rndi- 
 tors of till i/rantor or mortijai/or, or of jm n ntinij 
 till rredilori of inch grantor or mortijaijor from 
 olitainin;/ jiaymi nt ofanyrlalm-'* aiKilnut him.' 
 
 4S Vict. (18S5), c. 35, 8. 1- 
 
 (An Act to iinienil tliii])ttr \'2 of the Actscif 
 IH.S4, "Of the .Sfpiiriite I'loptTly ami Hi^'lit.- cf 
 
 The iiHitlavit attached to a liill of sale, muler Properly of Marrieil Women) - 
 whiclj plaintiff claimed the return of cert<iin , •' 7'/,, Snimmr Court "hall han' jiomr, irlmi 
 cattle taken hy the ShcrifT under execution, ptn'- , „„y marriniji shall han Imn du-laml null nml 
 Iiorteil to he sworn hefore a .lustice of the I'eace ,-oiil^ or ihall hare Iiku dissoind hy thi Court for 
 and was signed hy the .Justice, hut not hy the i J)!,-orr(> and Matrimonial Causis, to altn\ i-nnj 
 grantor. Tlie hill of sale having hcen executed or srt aside, any nnti-nu/itial or jiost-nui'il'il 
 under the Acts of 18S.S, sitthvvnt or srtflimnit.t niadr liy and hitmni iln 
 
 Ifild, that it was not avoiiled hy reason "f p,trii,s whosr man-iaiji shall han hti n so ih chin it 
 defects in the atiidavitoi' hy want of an atlidavit. „,^/ nud raid, or dissoind, as afonsaid, nml 
 
 S'loi-omh V. .l/o»N' , '20 X. .S. R., (S R. &(!.), 60. shall hare the. same poirers, irllh rifrenreto ih' 
 
 apiilicafion of thi n-hoh or any portion of ih 
 
 This section now appears in M\ Rev. Stats, propirty disposid of hy surh s,iil,ni<iit ors,iih- 
 cap. 9'2, sec. 4, with the addition of the following ments, as the respirtire parties tlureto had at th 
 words; "otherwise such hill of sale or chattel /('mc of the. exemtion of surh settknuul or s,ith. 
 mortgage shall he null an.l void as against the ' ments, and the Court, on exircisinu surh pinrirs 
 creditors of the grantor or mortgagor." xhall hare rnjard to the eouduet of fin parti. - lo 
 
 Hi Id, that the wor.ls of sec. 1, cap. 11, Acts , .si/r/i marrimje, and may exelude, in n-lwh or In 
 ISS.S, were merely directory. Also, uiat even if | part, from any henejil under surh setthmnif, nun 
 the hill of sale, upon which the defendant relied, party who shall hare hn n found i/nilty ofadnh. rij 
 was fraudulent, that would he of no avail to the /'(/ the deeree or sentence of the Court for Dimn,- 
 ])laintiff, who was a purchaser, he not being a , and Matrimonial Causes." 
 
 creditor. 
 
 Mcliriih V. Ward, 7 R. & C.., 11.5. 
 
 46 Vict. (1883), C. 28, s. 23- 
 
 (An Act to amend c. 81, of the Acts of 18(54, , 
 entitled "An Act concerning the City of I 
 Halifax, and the Acts in amendment there- j 
 
 of ••)- I 
 
 .Section 2."? provided that, in the case of insur- 
 ance companies doing business in the City of 
 Halifax, the property ot the companies within 
 the City should be liable to assessment in the 
 same way as the property of other ratepayers, 
 and also, that every such company should in •■ 
 additon thereto, pay an annual license fee, and ' 
 that, when any company was engaged in more 
 than one branch of business, it should pay a j 
 license fee for each branch of its business. 
 
 Ste HISB.iND AND WIFE, -' 
 49 Vict. (1886), c. 3-(LI(iuor License Act 
 
 of 1886) - 
 
 No ai)peal from County Court to the Supreme 
 Court in prosecutions under the Act. 
 
 See APPE.AL, V.,-21. 
 
 But see 52 Vict. (1889), c. 17, s. 1."), which 
 gives such an appeal. 
 
 49VICt. (1886), c. 34,s.9- 
 " Jn all actions an appeal shall lie to Ik 
 Supreme Court sittiny in hanco (from the 
 County Court) . . . The appeal shall he l»j 
 notice of motion . . . The notice sluiU he 
 served icithin ten days from the time ichcn (he 
 
1418 
 
 STATUTES, NOVA SCOTIA. 
 
 14.'H 
 
 iHt K. 8m ('. U'i, N. *i (f. 'lilt K. S., r. 4.1, 
 
 piili/iiiiiit. mil', urihr nr ilii'isiun irns jirn 
 iKiiiiifiil or iniiilr. i>r /rum tlir liini' ifln n Ih^ 
 til^liiUnnl jb'st hud Hiilicc thifiiif . . ." (Mmlu of liiyiiii; iMit new or iiltLTiiin i<\<\ 
 
 WliDii tho iiolicu wild not given uitliiii ifii roail.H) — 
 (lii,v^ iifli'i' judgliu'iit, tlii' ii|)|K'iil Uiis* clisMiisNi.'il, Till! ('imiiiii.sMininTs iiiid SussioMs liumiit hiy 
 hut, iiiiisiiniL-li lis tliL'if was cUlay in moving in nut a rnul sulpstantiaily dilluivnt fmni that 
 (lisiuiHw, without costs. |)i'tition('il for hy tliu fiveliohleri*. 
 
 /•■/■'(>«(• V. .]/,L,()il, '2*> \. .S. H., (H II. \ (i.), 7(1. t^hiiiii V. Chii.iiKii, It a/., •_' Thoiii., Ifiit. 
 
 I» Vict. (IHMM, c. .»«- 
 
 (An Act concerning the collection of fi eight 
 iiiiil wliai'fagc and warchou.su charges) — 
 
 I'll- 'rowiishcnil, .r., in juilgnient appealed 
 tiiiMi and revcrseil on appeal, on another ground, 
 however: "It seems \ery clear that the Act 
 (iHStJ, c. .')(!), wa.s nitru rin^ the )Mnver of the 
 [.Ileal Legislature, as directly legislating on 
 matters within the exclusive coiitiol of the 
 linMiinion Parliament. Independently of this, 
 the Act was disallowed ))y the Dominion (lovern- 
 imnt on the iVird April, ISST." 
 
 Thi Eaifini l)i n /ojiiiii lit Cn. v. MfKmj, 
 
 •_'() X. S. K., (S K. & (i.), p. ;w<). 
 
 Kcv. Stals., 1st scries, lainc Into rorce 
 .Sept. 1st, 1H.11. 
 
 1st R. 8., c. 22, 8. 2H- 
 
 ^'Ap/H'tila from the declsiou of the Justices for 
 (1111/ pintal/i/ or forfviturv hiciirri'd under this 
 ihiijiter !i/iidl be (jranlcil in the siinie iniiiiiier os 
 Under the vhnplev res^iectinij suinniiiri/ triuh 
 Iwfurs ■/usfues of the Peace ; hut hefure a iieir 
 (riid shall be i/ranted the appellant shall show hi/ 
 (ijfi'larit some error in the proceedini/s hrlmr 
 either in lair or in fact, and a/ioa his failure so 
 III do the Court shall conjirni the Jiuhjment with 
 cufis ; and in case of i/rantin;/ such neir trial the 
 Cmirt nan/ ini/iose such terms on either /xnti/ as 
 mint best /tromute the ends of justice." 
 
 Ihlil, where one of the Magistrates hefore 
 whom a cause was tried stated that all the paper.s 
 necessary for perfecting the ap|)eal were tiled, 
 acce|)ted the liond, telling the party it was nil 
 right, that the appeal should he alloweil, though 
 11(1 afhdavit had l)cen filed. 
 
 McKay v, McKay, -J 'I'honi., 7.'). 
 
 IstK. S., C. 02- I 
 
 When the (ieneral Sessions confirmed thei)ro- • 
 cccdings to establish a pent way which had been 
 iliily laid out, held, that before such way could ! 
 k' used the proprietor of the land through which ' 
 it runs must be paid the damage awarded to 
 him by the jury who had assessed the same. 
 
 Cameron v. McLtan, '1 Thorn., 329. i 
 
 I Three MagLstrates, forming a part of the 
 Court of .Sessions, l)y whom the return of a pic- 
 cept issued under 1st lie v. Stats, cap. ti'J, for 
 laying out a road is to be deciiled, are not the 
 three disinterested freeholders contemplated liy 
 liiat .Act. 
 
 l^'mni V. Chi/iniaii, 'l'\'\\i>u\., '2\^'l. 
 
 1st K. S., c. 80 -Cf. .Itli R. 8., c. 3.1 -(Of the 
 
 settlement and support of the poor) — 
 
 Overseers of the poor are not liable for money 
 due liy their predecessors in ollicc. 
 
 /'</■ Desl'.arres, .1.— It is oidy necessary to 
 consider what are the ordinary incidents of a 
 corporation, to see that ()ver.seers of the Poor 
 have not, and were not intended by the Legisla- 
 ture to have, any corporate privileges, except 
 for the limited and special ol)ject expressed in 
 the law . They have no corporate name by which 
 they can sue and be sueil, nor can they j)urchase 
 and liohl lands and chattels ; they have no com- 
 mon seal, nor can they make liyedaws for their 
 own goverinnont, and it will not surely be pre- 
 tendeil that they have (leipetual succession, 
 without which they cannot be a corjiorate Iwidy. 
 They have not in fact, any one of the incidents 
 essential to a corporation, and cannot sue or be 
 sued for or in respect of any contracts or oliliga- 
 lions but their own. 
 
 nnrrit <t al. v. Hatliild it «/., •_> Thom., Kil. 
 
 1st R. S., c. Si), s. (I 
 
 Sessions made final) — 
 
 (Decisions of the 
 V ' CERTIORARI, .Ss. 
 
 1st R. S., c. 11.1, s. Ift-Cf. 5th R. S., c. 00, 
 
 ». 18- 
 
 ".■!// such estate, reid and /lersonal, as is not 
 devised in a will, shall be distributed as if the 
 testator had died intestate." 
 
 Per Hliss, .1.— The effect of this clause is to 
 give to the Court of Probate that jurisiliction 
 over any undevised portion of the estate, which 
 it has where there is an intestacy as to the 
 whole estate, and to prevent the necessity of 
 resorting to a Court of E([uity to obtain a dis- 
 tribution in such case, where the only necessity 
 before for resorting to it sprung from the 
 
l+.'^'> STATUTES. NOVA SCOTIA. 
 
 I4;j() 
 
 ■ Incli iiif that llio i'\icilt..r Kink thi.s |■t•^ill^lu a« Ist R, 8,^ f, im, ^, >i\ fl ,||,_ 
 
 '"" '^' ;■ /•,,/ ,• 1/ /. ;/ I .. i.).| <'(»iiiiKfl «»•,'//„/('/'< -|!y liiv. Stills. ,,i|i. 1,(1 
 
 M. •_'!, I'xoi'iitiini ix til isMiii' ajiaiiist tlic ^j 
 
 ut K. s., €. I'ii, s. \ IT. .itii K. s., c. »i, ;!':";:''^'.;;;;' '"'';"" ;';r"' "'-"'":' "■*■ '"■''>■ 
 
 „ liy 'III' '-Mtli .ti'ftuiii (it tliu ttuMiu tlio foii.-talili' 
 
 "..V , , . ,1 Is- I ..• ji i'* 'liii'i-'tL'il to tuku Niitlii'ioiit l'ooiIn t(i Natisfv ilii. 
 
 ■' ^o luii/iacf for tin: Kiilv of iiiii/ i/otx/s for t/ii' . , , • ._ , • 
 
 ... ; I ' ] II 1 I •-•xfcutidii, and liy Mi'ctiou •_'/ for want nf .mkIi 
 
 /*/•/(•(• of /ill iiiniiiils or Hiiiviirdii s/uill lie i/ooil, , , . ■ , , 
 
 . ,; / < , ^ ,1 1 ' II fe"""l« I"' I-* ti) takitthf lidilv. IliiTu is nil IV • 
 
 , , ,, ■ ., ■ ' ,; • ■ i'i'I>tiiin in till' All lit any kiinl ot ukoiI.s, T|,,. 
 
 iiKil (i<nicil/i/ riri'irr t/ii' Mdiiicor yivi'Hoiiiit/iiiiif III . . , , , o • • i m 
 
 ,,,'■;,,; ... ■ l'.\<-l|lt|ll|l Willi ll'.'<|H'<.l to tllO lllHt COW <ll(.ll|>l ill 
 
 fiuiiiHl to liiiiil lliv liariiiitn or III iiiirt of iiiiiiiitiiit, , , , ,', ,. , , n m 
 
 ,, , , ■ , . .;. . iHt l!fv. .stilt.-*., o. I;t4, wliR'li icL'iiIatf.s ijic iilia.i. 
 
 ()/• tliiit goiiiv note ur iiieiiioriiiiilum in irrittiiii oj . . ■ , , , ' 
 
 ,, , -I. I 1 ■ I I ,1 .'■ i ingsaml piiiclicfut tlK'Siiliiciiiu ( (iiiit.aii.l ill hi 
 
 Uiv Imriiiiin It iiii'de iiiul nufneil In/ tin' /iiirfiin to ..? ■ , . , I , . 
 
 , I ' 1 I I , ' , 'i .. ■ , > ift. wip. 4, wliii;li rt'iifalH till' tormcr Siatiilf. 
 
 /;(' vhiinii'il III/ siir/i colli ruit, or In/ t/.iir iii/viiU „„ , , . , ,, 
 
 ,, ;;;■)•. ' 1 lie IliNfiivfiit All, l.sl Rev. Stilts., 1.'. I.'JT n- 
 
 tlivrvuitlo iia'lwriziil. . . .,,.,,,,, 
 
 . , , . , . . 1 1. .1 . taiiiH no e.xcfiitioii of the kiinl. If I loii-foii. tin. 
 
 A vei'ltiil agri'uiiR'iit liftwefii A. iiinl II. that i i i i 
 
 ,,,,,., , • ..ill. '-'"^^' "-'""hi not liu taki'ii on I'Nt'Liition, the nwiur 
 
 15, shall take a net in pnyinciit oi hi.s dtlit, ,, , , , . . ., , , ' 
 
 , , 1 • . 1 1 .-1 . 1 .1 eoiild lie iiliifi'il III jail; and w hen liu ciiine t.p 
 
 .ilthoiiL'li intended a.s a tinal aL'ivfiiifiit liy tiie , , f „ - , . . 
 
 ... . .,• • . !■ -.1 .1 'iil^e the heneht (if the Insulvent Act ho wipiiLI 
 
 iiarlies, is not u .siithcient i'oni|)|iain.e with the , ,, , . ,, , . 
 
 ,,,,.. ,. ., , . I. ''<-' eoiiiiK'lled to assign all t he jjoods spi'L'itiiil in 
 
 statute of rniuds to tninster the iiidpuity to I!. , , , , .... * ' 
 
 ,, ,, . ,.1,1 ,„, the .seheilnle to hi.s pftitioii. 
 
 McKi.iiin: V. /io'/»(V.«ti«, James, ".'.U. ,, ,,,. , , ' 
 
 J'lr IsIkss, ■). — Jt was never intended that .m 
 
 The coiitiiiet is sutiicieiitly anthenticated if it exeeution of ii .Magistrate should hiivu gifaiir 
 
 has lieeii recogni/cd in writing by the party sued foreu than that issued out of this Court, As to 
 
 iilioii it. It is no (ilijection to the niiiinleiiance the olijcction lelative to tin; jirisonur's sclu'ijiilf 
 
 of tiie action that the ilefendunt liiinself i.aniiot under the Insolvtnt Aet, that winild ei|iialiy 
 
 enforce the same contract against the plaintill' »Pl>ly to an u.xeentioii out of this I'mnt. A 
 
 liccause the plaiiititl' has never signeil it. prisoner cannot lie eoiiipelled to assign his lii.st 
 
 J'ojii. V. TIa J'irlva Shaiiilioat Co., cow, for that would lie to deprive him liy mi 
 
 ■J Old., p. i'.i. indirect way of that which the Legislature will 
 
 not allow to lie taken directly from him. 
 
 1st R. S., C. 130, S. 50 -tf. oth K. S., /'"• Wilkins, ,J.-If the greater Court caimot 
 
 c. 100 s. 19 take the cow neither can the lesser ; for uimii. 
 
 " //■ (//)// real or personal estate of the deveaml ^ "'"!/"••• ''O"''"' ' '" ■•"- ""'""-■■ 
 s/iall come to the possession or kiioirleih/e of the i MeLmn v. Watson iJ nl., L' 'riioiu., 40(i. 
 
 r.vecutvr or administrator after he shall hiire 
 
 filed such inventorif, he shall within a reasonable ■^^^ |{^ g^ f^ |3;{ gjj^ jq jjm| jj 
 
 time thereafter Jile in the lieyistrars ojfice a 
 
 further inventor;/ of the same, upon oath:' '^' ' STATUTES, IMPEKI.U, 23 IICII. «, C. 9, 
 
 I'lr Wilkins, J.— This obviously relates to 
 
 property of the deceased coming to the posses- I j^t H S C 134 S 01 
 
 sion or knowledge of the executor or adminis- 
 trator sulisenueiitly to his e.xhiliiting the tir.st 
 
 " So new trial shall be i/rnnted on account of 
 
 , . , , . evidence haviiii/ been imnrotierli/ received on aw/ 
 
 inventory, which his cfjiivictions recogiiue as ..,....,•. , ' '. ., ., , ., , 
 
 .,.,,, trad, ij III the nulamcnt of tlie Court there be 
 
 inilisiiutalily such. ., ., ,,.■. ., . • ., ,..., 
 
 ,.„ * ,,,..., , , . other evulence sumcieiii to sustain the cerdut 
 
 Ihe .Judge ot Probate has the power, utter „,, . "^ . , ... , . , 
 
 ., 1 r . 1 lliis wasat one time theiirniciple updii whicli 
 
 hearinL' evidence on tlie tacts, to order an execu- , „ , , , , , 
 
 ... . • 1 1 • .1 • ; the Courts acted and the very laiigaiige of our 
 
 tor or administrator to include in the inventory, , , , . , ^ ,. .. , i 
 
 ,. , , ^. , , . ,, ., Act seems borroweii trom that ot Mansheld, 
 
 as propei'tv of deceased, articles elaimed by other ,, ^ ,, . , ,„■, , „. 
 
 . ., \ , . • .1 \ C. J., Hirjord v. II dton, 1 Jaunt., 14. 
 
 pa: lies, but he cannot recjuire the executor or > ^ 
 
 administrator to swear to an inventory thus 
 
 amended by his order. 
 
 Before the costs of the proceedings on citation 
 
 to render an account can be allowed against an I 1st K. 8., C. 134, 8. 63— IT. 5th K. 8., C. 104, 
 
 administrator personally, the notice reijuired by Appendix, N., page 1143 — 
 
 section 10, chapter I'i, of Acts of 1853, must be ' " If the plaintiff in any action of trespass, or 
 
 given, and he must appear from the evidence to i trespass on the case other than assumpsit, shall 
 
 have acted fraudulently. recover less damages than forty shillings on the 
 
 In re Ettate o/L'aUton, 2 Thorn., 195. | trial of any issue, or an inquiry or default, he 
 
 Johnilone v, Brtiinn, Jamea, 14; 
 liu-isfll V. Marshall, James, .SSO. 
 
li'n STATUTES, NUVA SCOTIA. IWS 
 
 "li'" ""' ''' v.T liny loxtM. unli'HM thu .lu.lge ^/«,jt,' i/u<.i(tiv(l to «,-n;, ,i» i/rnwl Jtirorit, t/ifir 
 
 K.I..if whc.iii tlu^ iHMiie U liif.l »|iall at llic trial pl(„rg of rvtiihiHt; iraiifi, cdlliiiys or nn/ilui/- 
 
 ..titit'y oil llif l)aok of tliu JNHiif roll that tliu iiieiilK, iiiid irhvllifv senior or /iiiiiur, or l.if ,i„i/ 
 
 notion wiw lii'ouglil to try a ii«lit. liesi.luH i\w otinr ajiiiMitiim hi) ivhirh thiii moi/ he usiuiliif 
 
 ihfif light to rucoviT ila.imgi'M tor tliu tifspa»s (•(///(■(/ or known." 
 
 1.1' i^riiiviiiK'.^ for which tlio action wuh l.roiight, S. :{|. •• The Court or /iretidin;/ Jnilije mnij 
 
 nr that till) tivM|iaH8 or grievance for which the amend the liii/» o/ Jurors by gtrikinij out the 
 
 viiiif was hioiighi wa» wilful ami nialicions ; l.iit wimet of /lemonH not linhle to nerve, or insertin;/ 
 
 iinthilig ill thiH section Khali lie coiiHtruc.l to the trite name (n- aili/ilion of (in;/ person therein 
 
 .li'|.iive any iihiintitl' of coxtx in iiny aitioii for a im/nv/itrli/ i/enii/noled or descriheit, or hi/ mliliny 
 
 trespass on any lands, or for entering into any the name of any qiuiUjiiu person hroiti/ht to their 
 
 tiiieinent, in rt'siiuct of which any notice not to kiioirleilye, and the I'rothnnolnry shnll keep a 
 
 tiespass tliereon shall have heen previously meinorandum of all siieh on,en,linent»,,ind annu- 
 
 served on or left at tile last place of aliode of all;/ return the same to the Clerk of the I'eaee to 
 
 the defendant, hy or on l.ehalf of tlie owner or be laid before the revisimj Justiees.'' 
 
 '"^yi'I"*-''"' Tlie omission of the residences and occupations 
 
 The grunting of a certificate thai an action of „f grand jurors in the list and in the panel liel.l 
 
 trespass was hrougiit to try a right so an to en- sullicient groundH for <iuaHliing iin indictment for 
 
 title the plaintiti' to costs, is a matter for the felony. 
 
 ■ liscretion of the preniding Judge, with which V""" v. Ihhjia, .James, l.'-.'!) ; 
 
 tlie Court will not interfere. V""" v. Murphy ii al., .lames, 1,")8. 
 
 Mi'HUirary v. Jlclmm; .James, l.V). ., , n.,,.. ,. 
 
 ht It. 8., c. I;{4, s. 102- tr. .itli R. S., c. l8t R. 8., c. 130, s. 1- 
 
 104, O. XL.. R. 40 - y„ sLiTlTES, IMPERI.iL- 
 
 •• The necessary iveaniiy apparel and heddiny 
 
 uf the debtor and of his family, and the tools or '"^"* ^' *'' '• 
 
 Mlruments of his trade or calliny, ami his last t^t u a ^ tt4 ,.• 
 
 ^a,r shall be exempted f,om e.iecntiou.- ^ ''f "l f\^- "* - '-^"^^'''t ""^ Absconding 
 
 ' Debtor.s Act) - 
 
 S" 1st R. 8., ('. 131, S. 21. /',,• Hai:ilmrton, C. .J. -An attachment .loes 
 
 not bind property upon mere delivery to a 
 1st R. S., C. 133, 8. 11— .Sheritf, as i>,n execution does. Jn the tirst case 
 
 "So person shall he an incompetent witness l.y I evei decided I was of opinion that where there 
 reason of incapacity from crime or from interest, were two concurrent writs of attachment, uuo 
 t;.\cept a party indivi.lually named as such on from the .Supreme and the other from the Infe- 
 the record, or the lessor of the pluintitr or tenant rior Court, the rirst levie.l under would hind the 
 .It the premises sought to he recovered in eject- property. In that case the Court were divided, 
 meiit. or the landlord or other person in whose l,„t I am clearly of opinion that a writ (if attach- 
 light any defendant in replevin may make nient does not hind property until a levy is nia.le. 
 logmzance, or any person in whose iimne.liate | Crti.jhton tt at. v. Danieh, James, .S04.. 
 
 .111(1 individual behalf any action may he brought i 
 
 ..r defen.led, or the husband or wife of such ^'"' ^^^^^^' J.-Tlie words of the Act aro 
 persons respectively; but any defendant in a " '^'^'*^'"n<l'"fc' <"' 'i'«^'»t ""t of the Province." 
 cause pending in the Court of Clian<;ery may he *^'^' ""I"i-'s«'<"i '» that absconding, without 
 examined as a witness on behalf of the plaintiff ''''**^''"-''-' f'"'" '■'" I'lovince, would be sullicient 
 or of any eo-defendanl in the cause, saving just '" ''"''^'"" "" ^"''"^ ' ''""^ ""''• '^''«L''"'i'ii'g "i"st be 
 exceptions." clearly shown. 
 
 A party directly interested in a defence, who Stapk'< a at. v. Taylor, James, .320. 
 
 lias indeninitied the defendant on the record and 'i''e'=, aUo, ABSENT OR ABSCONDING DEBTOR^ 
 who slates that the suit is defended on his | 
 iiulividual behalf, is incompetent as a witness I 1st R. S., C. 141, S8. 2 and 3- 
 
 umler this Act. ' u .i .I'/v , / ■ .<• i 
 
 T , , „ , .S. 2. " 7 he party apply my for such wrtt (i. e. 
 
 Johnstone v. lireuan, James, 14. „f attachment) shall make an affidavit in the usual 
 
 form for holdiny a party to had." 
 1st R. S., C. 136, SS. 7 and 31-Cf. oth R. 8., «. 3. " The sum set out in the affidamt shall 
 c. 106, SS. 15 and 54— he indorsed on the icrit in ivords at length, and 
 
 ^. 7. " The list of grand furors shall contain shall be signed by (he person before ivhom the- 
 nil the Christian names and the surnames of all , affidaiit is made" 
 
I4:w 
 
 STATrTES. NOVA SCOTIA. 
 
 1440 
 
 ThiM pruutii.o wu« iHi'Heivuil In tliu '-'ml HuiifH in which he reniilfn, /«' mni/ np/wir nwl ftU hi» 
 
 (if tliu Ki!vi»fil Stiiluti'i*, mill wiiH Himilivr In tlir thrlnnifioii in th« Vouiih/ ii/irrr hr ilitm i'rviti',iit 
 
 |ni.vi«i(.iiH fiHini'rly i'xi»tiii« in ri'Ltiun Ici iippli- i thv /ir»t tfiin mtlimi/utiit tu thr Ai-rrice of' y»(jc,.« 
 
 tatiiin for a nipiiiH, wliioli uImo ii'<|uiitMl that lliu on him, anil thull mlnnit fn cnuiiinntiiiii niiuii 
 
 iiiilipisoniunt (in thai writ Nhcmld la' Hiniilaily o'lfh. if irt/uiird, itt Ihv mini in- Ihr iieil Kiilnf 
 
 Hij^iii'cl. .SV( ImI Kcvisi'd Sialiitc.i, iliaptcr yHc/// Iviin." 
 
 i;iH, Hcction .'i. In IM,"i;{, JHUVi'VtT, anil I'hn'en {{ffmu llu^ jtuHxing (if 11) Vict. c. '24, tju; Cumi 
 
 VHiM piidi' III liic Hill Mciit'H (if thi! KuviHi'il hail pnWHT tu dini'liaiKu a pvrmin as agonl nt an 
 
 Siatuti'M, till! Hii-calliMl " New I'lactici! Ai't " wan aliHconiliiiK ilolilnr', the tii'Ht tiTui, wiifii ihr 
 
 paMSL'il (I'haptor 4), which I'xpifsuly icpcali'il thu iicilitor iliil nut give any miliio nf hi« iiiliiiiiHii 
 
 fdiniur .StaliitL'M rulating tii arruxt (in nicxne pi(i- in ii;(|uiru a puiMimal exaniinatidii. 'IT.i' .imnt 
 
 iiHw, and intriidiiced llie pri!H«nt «y.stuin, which in hucIi ciiHu ih cntillud t(i hit) (!0»t8 of inotioii ul 
 
 «aH taken frnni tiic Imperial Statute, 1 X: 'J N'iet. diitchargo. 
 
 chapter I H». TliiH .Statute, allhnugh it lefcrs tn , 
 
 the HUni inddlHud nu the capian, has nn pidvisiou | 
 
 rei|uiring that hucIi indnrnenieut Nlinuld he 
 
 nigned, nnr do tiie fiuiUM indicate it. I'liilialily, 
 
 an it bocaino reiiuisito tn have an (iider tn hnld 
 
 t(i hail, the sigiiatiiru (if the .hidgu nr C'liiu- 
 
 inis.Hinner to the indnrHeinent was not di^eniijil 
 
 t'SHuntial. 
 
 Mrpimalil v. rms, r, 'A II. fi C, '-'DM. 
 
 Cftiiihlon V. Cook il iil., '2 'riLiiiii., 7^. 
 
 Rev. SInts., 'ind series, eamc Into roroo 
 August llth, 1H.W. 
 
 •2nd Kcv. Stilts., ('. 'i'i, s. lU - 
 
 '•.\'ii iiirxiiii sIkiII riciivir, ur //<■ nlhin'id in 
 
 ml iifl\ innj rliiiri/r fill' iiitii.i'ii'iitiii'l lii/iU'ri. in 
 
 iiinj ijiiiiiiUlii li'xn Ihiiii mil' iliilliiii, ililiri fill III 
 
 mil' mill till Kiiinr liiiH', ")/'' "// k/h riiiliir.s. 
 
 1st K> 8», C. in, s. K— t'f. iitll Ut a<, C. 104, /,,•//,,_ „,,<,..y ur luirri'inints, i/in'ii in fhfiv m- in 
 
 O. XLVI., R. 6 - 
 
 " When nny jwrmm shall have iinii title or inter' 
 flit in anil real estate, i/ouds ur credits altiuhed, 
 as a siilisei/neiit nt/acher or otherwise, he mini tie 
 allowed to disjiule the validity and effect of the 
 attachment, on the iji-Mind that the sum demanded 
 was not juttlji due, or that it was not paiiahle 
 when the action commenced," 
 
 Wiieii T., a Huli-<ei|Ueiil attaclief, iu his alii- 
 
 davit in sujipoit nf a motion to set aside process ^^ ,,,^^....5^ j -- 
 
 of liivcedii-.g attacher, slated that the ]ilaii\titr ,((,^ j,_ ^^^^ .^^ which ten nude r.itahle iuiudiitaiits 
 was .fecuied, in part, liy a mortgage and that, if ,,f ^\^^, iHsnicl voted for assessment, auil live 
 the diroctiiiusof the Court of Chancery had lieeii ^^^^.\^ jnlialiitants against it ; four males ami fmii 
 complied witli, security had lieen given for the ti;iiiales who wished to vote against usscssiuuiil 
 wliole amoinit, were rejected, the former on the ground of tlicii 
 
 //</(/, that T. had shown a right to interfere. „„j possessing ratalile property, and tiie latlci' 
 The Court directed a jury to imiuire wliether „„ nucount of their se,\. At tlie meeting wliicii 
 plaiiititf had any and what gO(jd and sulHoient iij,p„i„ted the trustees, two of these rcjcctui 
 
 /iiir' III siciirc mi;! ■■""•/! clmrijc, shull '" rnlil." 
 The word "agreements" does not iiiciiulc 
 " accounts stated." 
 
 Snti/lh V. .1/,'.Vm7/, •-'Old., ",. 
 
 2ml K. S., C. 00, s.l0-('r.5tli B. S., ('. '2«, 
 S. 45— 
 
 (Assessments for schools where a mainrity 
 
 agree) — 
 
 A meeting was duly held under '2ud K. S., c. 
 
 uecurity 
 
 Xaxli V. McCurlniij, "2 Thom., 1(J7. 
 
 males acknowledged that they had no property, 
 and no right to vote, and tiie oilier two iiiul 
 
 Per miss, J. -Two cases are specified in which ' never been assessed for, nor paid rates or taxes 
 a suhaeiiuenl attacher or other person interested "f any kind, and were not known to possess ai.y 
 may apply to set aside the proceedings, and they properly. A copy of the assessment roll, ami 
 are the two strongest cases that can be imagined, ; not the original, was returned to the .Sc.iniis 
 andinwhioh, if in any case, no enactment, would 'four months after the assessment was iiiadc. 
 
 be reijuired. We may, therefore, reasonably 
 infer that the Statute did not intend that any 
 other objection should be taken. 
 
 CreiijhIOH tl al. v. Danidt, James, .347. 
 
 1st K. 8., C. 141, s. le-Cf. Stta B. S., c. 101, 
 
 O. XLVI., R. 17 
 
 //(/(/, that the scliool assessment was valid. 
 McOi^i/or V. ra'itr-<on, 1 Old., •Jll ; 
 Pi mo V. Shaw it al., 1 X. S. 1)., %'l- 
 
 '2ndB. 8., c. 82, s. 1- 
 
 '•Ni> person upon, any contract slmll t"l<'' 
 directhj or indirectUj, for the loan of iimiv:* 
 
 W. .«».*J « ^., ^«. .>.■ I ./ - .. ■ 
 
 ''Where the supposed ayent or trustee is sum- ] or goods, ahove the rate of six per cint. />(''• 
 7noned to appear in an;/ other County than that \ annum. All contracts loherelij a ijrealer rak 
 
1441 
 
 STATUTES, NOVA SCOTIA. 
 
 1442 
 
 of intervH U nm-n-xl, .,i,iill I,, cut; iiinl nil, proporty Muize.l l.y liim uiuUt a wamuit of ili^. 
 jirrsi'iiM tiikinij <»• rmichiij ii/ion iiii'j noitfun Ii'i'mh for tliu iii)ii|Miyrnunt of hcIiooI riitfii, umlt'i' 
 
 II,- mnirUij n (inittir fati\ »h(tll furfiil (fvhli: 
 thr vuliic iif till- )urj»i(i'« or (IdihIh in Hiu'h ciiw 
 tnii't or mriiriln roiitnirtnl j'ur or mruniL" 
 
 Ve. BILLH UF EXIIIANUE AND 
 
 PKUMIS80UY X0TK8, ViI.,J, ;» & 4, 
 t'OMKAlT, H.-)- 
 PBIXtlPAL AND AUEXT, 0. 
 
 'iiid K. S., c. K'2, N. t-dnlcrcHt)- 
 
 A Hpuciiil iii(lori,c'iiinil (111 ji writ, ulaiiniiig 
 liiliruMl, (111 a mini iiaiimil, from tlio ilalc of ilio 
 «iil until jiidgiiient, given ii plaititillno ligiit to 
 iiileruat in ca«u.i wiiere he in not otiiuiwisu ciiti- 
 (ltd to it. WiiL'io a iluniaiKl is inailu in wii^jiig, 
 iiiiik'i' tliu Iiitcrt'Ht Act (lluvisuil Statutes, second 
 
 KuviHi'd StatliteH (Mcuoiid wrieM), u. (HI, nee. |l», 
 altlioiigii niiuli wairani lie defective in not 
 reciting tii.it the collector hail made the oath 
 iciiuiied to liiMiiade previoiin to the inMiic of hucIi 
 warrant, which oath, however, had in fact lieen 
 niailc. 
 
 I'lr Voung, L'. .I.-Tlie only remedy in BUcii 
 a ca8o iH hy in'iomri, or appeal to tiio .SuHHionH. 
 A school rate in not \itiatcd liy the excliwionof 
 female ratal)le inhaiiitaiits from voting agniiiMt 
 the rate. 
 
 Midnijin- v. I'dlhr^on, I Old., '.Ml. 
 
 'ind K. Sm c. S9, h. as-ir. till K. B., c. 3.1, 
 
 8. 23- 
 
 " If any /urioii think himxfl/onr-rahd hi may 
 
 scries, chapter H'2, section 4), giving notice to ' a/>/)w/ to thu mxl Sisiioni or fo 'hi: iiixl S/iirial 
 
 tiic debtor that interest will lie claimed, it is 
 still in the option of the jury, or of the Court 
 wlicii there is no jury, to allow or reject the 
 iiilciest as they shall think tit. 
 
 Xvnis V. Ttiy/oi, I X. .S. I)., 491. 
 
 2nd K. 8., c. 80, H. n-lf. .Itll K. S., c. 35, 
 
 s. 18— 
 
 C-'iid Uuv. .Stats., e. 80, s. li, same hh utli Kev. 
 Stilts., c. 3,") s. :i, renders townjhijis lialile to 
 tile maintenance of the poor who iiave gained a 
 settlement tiiere)— 
 
 Sisiiuiin to he hi III for hturiiii/ surh ajijimls. in 
 Ihi Cuiiiiiy (!)• Dintrii't ii-hnnin fhi (is.-n.^^inni/ w(m 
 ntciiii' ; (iiiil ihi: ovikr of nai:h Courl of AjijikU 
 ihall hi'., film/." 
 
 It was contended that the appeal did not 
 extend ti. a party wiio oiigiit not to liave lieeu 
 rated at all, hut was so rated, 
 
 //t/il, that it (lid. 
 
 Mi-llriijo)- V. I'Hlh.rson, 1 Old., 'Jll. 
 
 2nd R. S., c. 112 -Cf. 5tll K. 8., C. 88- 
 
 "All vatntoi tail ari: "holishiil, nnd ci'erij 
 S. 17 en,,cts that '' wu-y loirmhir sluUlhtliuUt i ,,tut<i which u'imid hitlurtu hair hrni Kiljmhjed 
 
 lo fiay any ix/nnif: n'hu-k ihall nuxssarily lit in 
 cm-nil for Iht reliifofajiaiijiu- hy any ptmon 
 ii-ho 
 
 n fee tail shall hvnaftii- In: adjuili/rd u /(.e- 
 ninijdv, and, if no valid remainder be limited 
 /.. not tmhk hy inw for hi.s .support, f^^cH ^/jercoH, s/K(/n>e « ?<■« .s,m;</« «/,.s,;/«<e, ,/Hr? ,««» 
 noureand rtqmd made to tht Oi:rs,tr. of the \ i,, conveyed or devixed In, the tenant in tail, or 
 M,p, and untd provision shall o- made hy utherwise shall descend to his heirs as a fee 
 them. 
 
 Ill hi, that Overseers of the Poor are not liable 
 in Ml action brought against them as such O/er- 
 seen to recover an amount expended to suppor.'^ 
 a pauper belonging to that township, some years 
 licfme the defendants came into olHce. 
 
 lliirrilt el al. v. Hatfield et al., 2 Thoni., IGI, 
 
 'ind K. S., c. 89, s. 25- Cf. 5tll K. 8., c. 35, 
 
 8.20- 
 
 " The collector shall make oath iu n-ritimj be- 
 fore such Jmtice,settinij forth the name ofertry 
 lUfmilter, the sum. a.s.ses.ied, that the demand has 
 km made, and that the rate is unpaid ; and { 
 th'j-eiipon Slick Justice shall forthwith issm a yen- 1 
 (ml warrant of distress aijainst the several de- j 
 fmlturs in the form in the .schedule, directed to a \ 
 m.-,tal)le not beiwj such collector, commandimj 
 
 . simple." 
 
 When a testator devised lands to his son R., 
 
 "for and during Ids natural lifetime, then to 
 
 devolve to his eldest child lawfully begotten in 
 
 j a line of succession forever," and the testator died 
 
 ^ before the pass-ing of the Act abolishing estates 
 
 , tail, it was oontonded that II., who died child- 
 
 ! less, under his father's will took an estate tail 
 
 which the above chapter converted into an 
 
 estate in fee, and that, therefore, the defendant, 
 
 to whom R. had conveyed the land in fee, and 
 
 not the heirs of the testator, were entitled to 
 
 the land ou the death of R. 
 
 Held, that the rule in Shelley's case did not 
 
 apply, and that R. took only an estate for life. 
 
 McKay et al. v. Annand, 1 Old., 247. 
 
 The Act is retrospective, and abolishes abso- 
 
 l>m to levy upon the ijood-s of each person named lutely all estates tail, even although a valid 
 in the warrant the sum due hy .such person, with j remainder be liniite<l thereon. 
 
 mMahle's and Justice's fees." 
 Replevin will not lie against a constable for 
 48 
 
 In re Estate of Simpson, 1 Old., 317 & 745 ; 
 McKenzie v. McKcnzie, 2 Old., 178. 
 
1443 
 
 STATUTES, NOVA SCOTIA. 
 
 1444 
 
 2nd R. 8., c. 113, s. 0-Cr. 5th K. S., c. H4, 
 
 8.8- 
 
 "All (IcpOh, jiKhjments, and ultuchmcnts 
 affectimj lands, shall he raf/istered in the office 
 of the County or District in which the lands 
 lie." 
 
 See 2na K. S., C. 113, s. 20. 
 
 2nd R. 8., c. 113, s. 19-Cf. 5th R. 8., 
 
 c. 84, a. 18— 
 
 " Deeds or morltjaijes of lands duly executed, 
 but not reyislered, shall he void ayainst any 
 suhsi'ijuent purchaser, or mortijui/ee for valu- 
 ahlc consideration, ivho shall first reyister his 
 deed or mortyaye of such lands." 
 
 One Hazel, on the 19th August, 1809, executed 
 a deed to plaintiff of .a certain lot of land, and, : 
 on the '24th, another deed of a second lot, both i 
 of which deeds plaintiff had recorded on the \ 
 25th. On the Srd May previous. Hazel had ' 
 given a deed of the same two lots to defendant, I 
 which, however, was not recorded l)y him until 
 after plaintiff's deeds. Plaintitl' had notice of 
 this deed wh'^n he received his second deed, but 
 not when he received the first. The jury found 
 that the deeds to plaintiff were liona, fde and 
 for good consideration ; whereas the deed to 
 defendant was made for the purpose of <lefraud- ; 
 ing Hazel's creditors. i 
 
 Held, that under these findings plaintiff must 
 succeed, his knowledge of the existence of de- j 
 fendant'sdeed at the time he received his second i 
 deed having no effect upon his title, as that ! 
 deed was fraudulent. I 
 
 Fleldimj v. Acktrly, 2 X. S. D., 526. I 
 
 .Set, a/so, 2nd R. 8., C. 113, s. 20. 
 
 2nd R. 8., c. 113, s. 20 -Cf. 5th R. 8., C. 
 
 84, s. 19— 
 
 " No mortyaye, jiidyment , or other iucumbrance 
 ajlhc/iiiy lands, .shall hare any priority or fjTeet 
 by reason ofhi'iiiy held f>y or rt.sltd in the same 
 person with another mortyaye or incumbrance of 
 prior date and riyislry." 
 
 Where a mortgagor by two distinct transac- 
 tions has mortgaged two properties, one of 
 whicli on sale under foreclosure has not realized 
 the sum for which it was mortgaged, the mort- 
 gagor will be alhvwed to redeem the other prop- 
 erty without payment of tlie balance due on the 
 first mortgage. ! 
 
 Upon the sort of tacking here referred to, 
 this sect.if)n can have no effect. It is affected 
 by the ninth section of the Registry Act, where 
 the lands mortgaged lie in different counties, j 
 How far it is affeeted l)y the nineteentli section, 
 or by the doctrines of implied or express notice, 
 are points of more difficult and subtle inquiry. 
 
 which I throw out for the consideration of tliu 
 Legislature ; but as they are not directly in 
 issue here, I forbear from expressing wiiat 
 would be only an extra judicial opinion. One 
 thing is certain, that the sooner the rule is 
 determined and known, the better will it \n; for 
 all parties. Thousands of titles have Itccn 
 searched, and numerfnis securities have liccn 
 taken without reference to such a ri.le, ami no 
 cla.ss of transactions w ill be more affe :teil l)y it 
 than those of the defendants themselves. It is 
 notorious that in many cases the same ndivid- 
 ual has borrcjwed from the Building So'nety dis- 
 tinct sums on distinct properties, and if tliey liave 
 the power they now claim of using the mortgages 
 as guarantees for each other, the rights of tiie 
 mortgagors in dealing with their property, ami of 
 purchasers from them, willbetrannnelledinaway 
 of which hitherto they have had no conccptiuii, 
 Slayler v. Johnston el al., 1 Old., oU'J. 
 
 2nd R. 8., C. Ill, 8. 5-t'r. 5th R. 8., C. 89, 
 
 s. 4— 
 
 "No ifilf shall tie ralid nnlis.s it shall In: in 
 lori/iny, -siymd at the < nd or fool by Iht leslaior, 
 or by .sonit othi r person in his pj-tstriice and by Am 
 dirtction ; and sr.ch siynalnrt shall be mailr or 
 acknowledyed by the testator in the pre-sewi 'f/irn 
 or more ici/ne-ssM present at the .same tinir, ami 
 ■such teitne.sseH shall altist and shall suliscril.n: thr 
 will in the presence of the lf;stalor, but no form of 
 attestation shall be necessary." 
 
 Held, that a will is suificiently attested where 
 the testator could see tlie witnesses sign, had 
 he chosen to do so, though there was no proof 
 that he actually did see them sign, and tliey 
 were in an adjoining room at the time. 
 
 This Act differs from the English in that tlie 
 testator need not sign in the presence of wit- 
 nesses. It is sufficient if he either sign the will 
 in their presence or acknowledge it in tlieir 
 
 presence. 
 
 Garriyan V. Carz-iyan, 2 Old., S, 
 
 2nd R. 8., c. 121— 
 
 Per James, .J. — Up to the passing of the Re- 
 vised Statutes (2nd series), in 18.59, this (.'oart 
 had no equitable jnrisdicticm, except a summary 
 process for the foreclosure of mortgages. Tiie 
 Chancery jurisdiction was until that date admin- 
 istered by the Master of the Rolls, witli an 
 appeal to the Lieutenant-Governor, who was 
 the Chancellor, and who sat on appeals with the 
 Master of the Rolls and a Judge of this Court; 
 but this Court, as such, had no equity jur'silic- 
 tion. By chapter 127 of the 2nd series, the 
 Court of Chancery was abolished and the whole 
 e((uity junsdiotiou given to this Court, and from 
 
1445 
 
 STATUTES, NOVA SCOTIA. 
 
 1446 
 
 that (lay to this the Siipronie Court has been 
 iKit only a Court of K(juity, but the highest and 
 indeed the only Court of Equity in tlie land. 
 The powers tiien given to tliis Court iiave never 
 Ijeen withdrawn or repealed, and without ex- 
 press words they eould not be withdrawn or 
 repealed. Tlie.Indge in Equity is a Judge of 
 ilii.-i Court, and liable to perforin all tlie func- 
 tions of a Judge of this Court when it may be 
 necessary for him to do so. And the Judges of 
 the Court are all Judges in E<;uity wheiiever 
 the necessities of the ease reciuire tliem to exer- 
 cise tlieir powers, which necessity is occurring 
 every day. 
 Bank of Nova Si'olia v. Smith, 4 R. & <,'., 14G. 
 
 2nd R. S., c. 127, h. 2- Cf. Srd K. S., c. 124 
 
 3. 4— Cf. 4th R. S., c. 95, a. 7— 
 
 •• III all cases heretofore deteriainahle Ui 
 Cliiinrery, and henceforth to be cond-tcted in 
 (III- Supreme Court, the practice of the Supreme 
 Oiurt nolo, or hereafter to be established, as 
 fur as it is applicable thereto, shall be observed, 
 excejit in so fur as the practice is altered or 
 madiried by this chapter; and in any (V(»'e to 
 irhich such pjractice, and the provisions ol' this 
 chujiter shall not apply, but in no other, the 
 iiructice of the L'wjlish Chancery shall be 
 rnhpted." 
 
 I'(r DesBarres, J. — We are, it seonis, to exer- 
 cise all the powers, and apply the same princi- 
 ples of e(juity as a Court of Chancery, liut we 
 .irc to do tills, as far as can be done, according 
 to the practice of the Supreme Court. In a 
 mixed jurisdiction like this, of law and e(£uity 
 combined, it may not be easy, at all times, to 
 iliscover whether the practice of one Court or 
 the other ought to be adopted, and whenever 
 any difficulty of this kind occurs, .ve must ueces- 
 Mii'ily shape and mould a practice for fmrsclves, 
 to unable us to discharge the functions of ai; 
 Ei|iiity Court, as far as may be according to the 
 course and practice of a Court of Common Law. 
 Mi'Aijy v. ilruy, Ccjcliran, 5"2. 
 
 2ml K. S.. C. 127, s. 13- 
 
 (Decreeing specific performance) — 
 
 See SPECIFIC PERFORMAXCE, 5. 
 
 2nd R. S., c. 130, 88. 13 and 18-Cr. oth R. 
 
 S., c. 100, sa. 26 and 31— 
 
 S. l.S. " In case the personal estatu of the 
 kf.msed shall be found by the Judge on affl- 
 'I'lvit insufficient for the payment of ?iis debts 
 "ltd Icyucies, such Judye upon security being 
 [ih'enfor the proceeds of the sale or the sum oh- 
 imcd by mortgaging or leasing the same, may, 
 
 nt his discretion, grant a license for the sale oj 
 the whole or such part <f the real estate of the 
 1 deceased as he shall ileem necessary, or for the 
 mortgaging or leasing thereof, provided such 
 lease be for a term not exceeding tioenty-one 
 years." 
 
 S. 18. IVhoi any iiart of the real eihtte of the 
 testator htm been undtriMed, and the personal 
 enlale ahull beiiMufficii.nt for the /taymeut of debit, 
 Ifgaciex and expiufis, tht uuderised rial estate 
 shall be first sold, nn/ess it shall appear from the 
 will that a diffirent arrangement of his assets for 
 the payment of his debts or legacies was intended, 
 in irhich case they shall be applied for that pur- 
 jiose in rouformity irith the prorisions of the will," 
 
 Held, that the real estate of a testator is not 
 liable for tlie payment of legacies, unless it is 
 manifest from the will that such was the 
 testator's intention. 
 
 Real estate devised to one cannot be sold for 
 the payment of a legacy given to another, unless 
 the testator has clcary shown such to have 
 been his in) ention. 
 
 In re Estate of McKay, 1 Old., 1.31. 
 
 2nd R. S., C. 131, 8. 127-Cr. .itli R. S., 
 c. 104, O. XL., R. 32— 
 
 Per Young, C. J. — Our original .Statute of 
 Fniuds (Provincial Laws, vol, 1, fol. 27, sec. lo), 
 was in the words of the English Act, and our 
 present Act, Revised Statutes, chap. 1.34, sec. 
 127, means the same thing ; " no writ of execu- 
 tion shall bind the goods of the defendant, but 
 from the time the writ shall be delivered to 
 the Sheriff to be executed," words sufficiently 
 plain and sufficiently ample. In this case it is 
 contended that the writ of execution did bind 
 the goods of the defendant, not from the time 
 when it was delivered to the Sheriff to l)e exe- 
 cuted, — that is, from the 9lli of January, — but 
 from its teste or date, that is, l.'lth December. 
 Now, I contend that it took effect only from 
 delivery, and I find sufficient authorities for 
 this position, which is clearly within the letter, 
 and, as I think, also within the spirit of our 
 law. In 2 Equ. Cases Abr., .381, Lord Hard- 
 wicke said : " IJefore the .Statute of Frauds, the 
 defendant's goods were bound in the Slieriff's 
 hands from the teste of the writ of execution. 
 To avoid this, the Statute was made, whereby 
 it is enacted, that the goods shall only be bound 
 from the delivery of the writ to the Sheriff; 
 but neither before this Statute nor since, is the 
 property of the goods altered, but continues in 
 the defendant till the execution if. executed. 
 The meaning of these words, that the goods 
 shall be bound from the delivery of the writ to 
 the Sheriff, is, that if, after the writ is so deliv- 
 
1447 
 
 STATUTES. NOVA SCOTIA. 
 
 144S 
 
 erert, the clefmidant make an assignment of liis tion, Rltliough the original taking niay liavi- 
 goods, unless in maiket overt, the Sheritt' may heen lawful. 
 
 take them in execution.^' I Fra.mau v. Harriw/lnii if a/., 1 OM., Xti. 
 
 llnnoir.'i V. Iftntr, 1 Old., 371. 
 
 and R. S., c. 134, 8. 144 -If. 5th K. 8., 
 
 c. 104, O. XIII., R. 8.- 
 
 "/)t rnsi- thin '" no aii/iearwm and pita 
 V'i'hin tht /imeniifoinlxl, or if an appearance hi: 
 
 2nd R. S., c. 135, 8. 28 -IT. 5th K. S., c. 
 
 107, s. 9— 
 
 " The prohntc of a icill, or a copij thircuf, 
 carlifii'd niider the hand of the Judiji- or Jiiijis- 
 
 tntored but the dffevv, limiledto part only, the. tmr of Prolate, or proved to he a true n,p;, of 
 plainflir Shalt IH- at Hherty to .vjnjudument tha> the oriyinul will, when sneh will hus hion 
 
 ', , ,-,;.• ^. .,>./,,/.■„/;„. i/..-.'/ shtdl recorded, shall he received Hit evidence ; h}a ih: 
 
 the pirxon irho-<i- tilte i.i anserfta virntntii ■•>naii > 
 
 „/- (». /,.,.,; n>. ni' ihp unri Court mnti, npon due cauao shown iiunn offi- 
 reronr ?)0<.s».><(oh of I In tana, or oj ihk paii ^ " ." / ; .; 
 
 ., J., 1 • 1 .; ; .•„,., ,/o/^ 1./-,/ ^.,,m/j/ " diirit, order the orii/ind will to he prndnreAin 
 
 Iheriof to which the iliJiHiidoix nor apply. . „ 
 
 Where a defendant in ejectment first pleaded \ evidence." 
 
 denying the plaintirt"s right to the possession of It w'i« contcn.led that m an action for iIr. 
 
 the irhole. of the land claime.l, Imt afterwards recovery of real estate, the original will slmuia 
 
 obtained leave to amend his plea, so as to limit li^ive l.een produced at the trial, as the al.me 
 
 his defence to a part of the laud only, aiul the ««^t'<>» uppl"-"! "''b' to eases where personal 
 
 plaint itr then signed judgment for the lesidne, property was involved, and also that under tia. 
 
 and discontinued as to that part covered hy the application made during the trial, fouudul upon 
 
 1 an aihdavit tliat the original will was reciuired, 
 
 plea, f '■ ' 
 
 If. Id, that the plaintifTis entitled to his judg- it slu.uld have heen produced, 
 nienl for that, part of the laud to which the ff'''l< that in tUe construction of the seclioii, 
 defence does not apply, l.y virtue of section 144 there was no such excepti.m as tliat contendea 
 of the Practice Act (Revised Statutes, '2nd f"i'- Also, that as the .lefendaut lia.l hcen 
 series, c.i;U), with costs; for though that clause ' served witli notice of intention to producer 
 of ti;c Act is in Itself silent with respect to the copy of the will and give it in evidence nearly 
 costs, the form of judgment in tlie Appendix, f<'"i- "mnths before the trial, he should have 
 No 15, is given with costs, both where no ap- applied earlier for the production of the ongi- 
 pearance has been entered, and where there is a ' nal, and that the Judge exercised a sound .lis- 
 defence as to part of the lands only. The de- ' ci'i-'tion in refusing to adjourn the trial for thai 
 fendant is entitled to costs for that portion 
 for which he defended. 
 
 Fairhmd-s v. Jlolt", 1 Old., 13. 
 
 ' 2nd R. S.. c. 141,8. 23-Cf.5th R. S.,c. 
 2nd R. 8., C. 134, ss. lll-lW-Cf. 5th R. 104, 0. XLVI, R. 14- 
 
 purpose. 
 
 Carriijan v. Carrin'iii, 2 Old., S. 
 
 S., c. 104, O., XL V. -(Replevin) 
 
 Per Young, C. J.— These sections were re- 
 ported by the Law Commissioners to our Legis- 
 lature in 185'2, but the rough drafts having been 
 lost, none of us can recollect from what (piarter 
 they were derived. That they are of American 
 origin is clear ; and my own opinion is, from a 
 perusal of Morris' Treatise on Replevin, that 
 they were borrowed from the law of Pennsyl- 
 vania; they differ toto coelo from the English 
 law, and adopt the "claim property bond," as 
 it is called, permitting the defendant, on secur- 
 ity, to retain the possession of the goods reple- 
 vied, which defeats one of the main objects of 
 the writ. It is unknown to English practice, 
 and, in the Union, is confined to the States of 
 Pennsylvania and Delaware, although the isew 
 York Code of I'rocedure has introduced h, very 
 similar proceeding. Section 171 of our Act 
 permits the writ to be brought and the form of 
 the writ No. 2 is given as for an unlawful deten- 
 
 " Xo execution shall ismt aijaviM an ahsuii or 
 ahsrondimj debtor until the plaintiff shall ijin 
 security, to the satisfaction of the Court or n 
 Juilije, for the re-payment of all monies kritd 
 thereunder, in case the judgment should U re- 
 versed." 
 
 \Vhere an execution was taken out without 
 such bond having been allowed by the Court or 
 a Judge, the Court set it aside, tlioiigli the 
 sureties were unexceptionable. 
 
 Allan W.Caswell, 1 Old., 405. 
 
 2nd R. 8., c. 144, 8. 7- 
 
 " In all causes broiiijht up hy appial and con- 
 tested, the Court shall try the same anew." 
 
 Held, Rliss, J., dissentin;/, that no apFal 
 from a judgment of non-suit before a Justici' 01 
 the Peace lies where the plaintiff produced no 
 witnesses below. 
 
 McCully v. Barnehill, Cochran, 81. 
 
144!) 
 
 STATUTES, NOVA SCOTIA. 
 
 1450 
 
 2iHl K. 8., 0. liiO, 8. a-tr. nth K. S., c. 
 
 101, s. 16— 
 
 " \[7i(:r(', (I j)o(i)' or cnuHtij rale shaU he latcdc, 
 mid n warrant of distress shall issue aijuinst a 
 liirsiiH rated therein, nnartion shall he hranijht 
 lujiiinst the Justice irhn (/ranted the nytrnint 
 for an;/ irreijularity or defect in the rate, or hy 
 misoH of any such jierson not heini) liable to he 
 ruled." 
 
 I'd- Young, C. J.— It iippeiirs from the lan- 
 guiigu of the first sectif>n tliiit tliiscoin|ireliensive 
 Mid novel in-ovision in tlie tiftii must extend Xc. 
 actions of replevin, as well lis to any other action ; 
 iuiil in an action of tort, where the constable lias 
 c(iinplie<l witJi a demand made, and given a 
 peiusal and eo|)y of his warrant, lie is also 
 exempt, although the Magistrate may have iiad 
 iKi jurisiliction, so tiiat tlie party, distrained on 
 liy a warrant issued in good faith Imt illegal, has 
 IK) redress against eitiier. Here comes llie 
 peculiarity and tlie hardship of this case. It is 
 iui action of replevin, and heing so, it is urged 
 tliiit the usual demand not lieing re<|uired and 
 not iiaving been made of a perusal of any copy 
 of the warrant, tlie constaljle loses the 1)enetit of 
 the Statute. Assuming tliis to lie law (as it has 
 Ijtcii held in the most recent cases, wliich admit, 
 Itiiink, of some doubt), it follows that when tlie 
 warrant is irregular or defective, tlie constable 
 is lial)Ie in replevin when the Magistrate is 
 iKit. Chapter loO, it is clear, protects the 
 su|ii'rior, who has all tlie advantages of a higher 
 ]lo^iIion, and is presumed idso to have higlier 
 mti'lligence. And chapter l.")l, it is said, does 
 not jiroteot the inferior otticer, whom tiie law 
 compels to obey the warrant and indicts for 
 nfiising to execute it. It would be a violation 
 "f tlic first principles of justice to hold that the 
 Liinstable, who was compellable to execute the 
 warrant, was liable to an action of replevin when 
 neither tlie party wlio set the Magistrate in 
 inotion, nor the ^lagistrate himself can be 
 touclied. 
 
 McOrt'/or v. Pai/er.io», 1 Old., 211. 
 
 See STATUTES, IMPERHL, 
 
 24 Geo. 2, c. 44. 
 
 iiul K. S., c. 151 — (Protection of Con> 
 
 stables) — 
 
 SVt STATUTES, IMPERIAl, 
 
 '24 Geo. 2, c. 44. 
 
 Kev. Stats., 3r(l series, came into force 
 Marcli 21th, 1805. 
 
 iul R. S., c. 12, 8. 9- 
 
 ' If any declaration or oath required to be 
 >ii'i(k under the revenue hncs, shall be untrue 
 
 in any partiexdar, or if any person required 
 under such laws to ansieer unestions put to him 
 hy offlcers, shall not truly ansiccr such qnes- 
 
 I tions, the person ruakin<i such declaration, or 
 
 ! refusin(j to an.^mer or nut truly answerimj such 
 questions, shall forfeit a sum not exceeding 
 two hundred dollars over and above (dl other 
 penalties to v'hich he may he linhle." 
 
 Plainlitf, as collector of colonial revenues for 
 the I'ort of Sydney, brought an action against 
 defendant for tlie penalty incurred under Re- 
 
 I vised Statutes (.'Jrd series), e. 12, s. 9, by a 
 
 I violation of the revenue laws, and obtained a 
 
 I verdict. 
 
 I A rule niKt, in arrest of judgment, was granted 
 to defendant on tlie following grounds : 
 
 First, because it was not alleged in the declar- 
 ation that the action was lirought at the instance 
 
 j of the board of revenue ; second, because the 
 particular ofTence alleged to have been comniit- 
 ted was not specified in the writ and declaration. 
 Held, tliat neitiier objection could prevail. 
 The Statute provided that this action, though 
 brought for a penalty, shouhl be prosecuted in 
 tlie same manner in all respects as an action for 
 the recovery of a delit, and the defendant, if he 
 wished to take advantage of the first ground, 
 should liave pleaded it as a matter of defence, 
 while the second ground of objection, although 
 uii<|uestionably fatal, if this were a criminal 
 prosecution l)y information or indictment, was 
 of no avail in a purely civil action. 
 
 Leonard v. Co<isi-eH, I N. S. D., 121. 
 
 Srd R. S., c. 19, .s. 16 - 
 
 " Xo person sludl recover or he allowed to 
 set off any charye for intoxicatinfj liquors in 
 any quantity less than one yallon, delivered at 
 one and the sa.me liuie, and all specialties, hills, 
 notes, ayreements or accounts, stated, yiven, or 
 made in vhole or in part for or to secure any 
 suefi charye, sliedl be void." 
 
 The word '■'■ KpicJalfii s" in this section does 
 not include "judynii-nf." 
 
 Lnicrence v. McDnn(dd, 1 X. S. 1)., 41.3. 
 
 I'laintitF supplied defendant with merchandise, 
 and among other things, with intoxicating licjuors 
 in r|uantities of less than one gallon at one and 
 the same time. Defendant, on the other hand, 
 supplied plaintiff witii articles which were placed 
 to his credit in plaintiff's liooiis of account. On 
 a settlement of accounts, plaintiff struck out of 
 his account all charges for liquors supplied as 
 above ami, with defendant's consent, deducted 
 a like amount from the latter's credits by way of 
 payment for the li(juor. Defendant having given 
 a promissory note for the balance, 
 
 TIM, that the note so given was not void 
 
1451 
 
 STATUTES, NOVA SCOTIA. 
 
 14o: 
 
 under Revised Statutes (3rd series), olmpter 19, 
 being neither for nor to sectn'e intoxicating 
 liquors in any (|uantity as for'oidden \>y the 
 Statute. Ti>e Statute being restrictive of the 
 Common Law and of a penal character must re- 
 ceive a restrictive construction and on no account 
 should be construed to mean anything otiier tiiau 
 tlie plain ordinary meaning tin; words would 
 convey. 
 
 Smith v. McKachn-n, 3 N. S. 1)., 3.') & 279. 
 
 Action on a promissory note. Defence, that 
 the consideration for the note consisted in part 
 of ciiarges for intoxicating lii|Uors sold by plain- 
 tiff to defendant, in (luantities less than one 
 gallon. 
 
 J/tl(l, that under the provisions of the License 
 Act, Revised Statutes (3rd series), c. 19, s. 16, 
 the note was void, the effect of the Act being to 
 render such sales of liijuor illegal. 
 
 Held, that the law would not permit payments 
 made by the debtor on account to be appropria- 
 ted by the creditor to charges for li(iuor thus 
 sold, even though the appropriation be made with 
 the debtor's consent. 
 
 Smith V. McEachren, 1 N. S. 1)., 299. 
 
 3rd R. S., c. 10, s. 23- 
 
 "Appeals from the (/.(.'risioufi of the Justices 
 for any penalty or forfeiture incurred nnder 
 this Chapter, shall he granted in the same 
 manner as in the case of summary trials" Ac. 
 
 The effect of the appeal is to vacate the judg- 
 ment l)elow. Tlie case stands for a new trial. 
 Ry appealing, the defendant waives want of 
 personal service. 
 
 Hand v. Rorkirdl, 2 N. S. D., 199. 
 
 See 3rd R. 8., C. 128, S. 33. 
 
 3rd Rev. Stats., c. 25, ss. 14, 15, and 36— 
 
 Something more is re(iuire.l than a mere pro- 
 clamation before applications for areas can 1)6 I 
 made under any other section of the Act than I 
 section 36. Areas must be laid oft" in a particu- ! 
 lar way and of a particular size ; a plan must • 
 be prepared with the areas laid off distinctly ■ 
 marked thereon ; and as each applicant tiles his 
 ■written application, and pays for a mine, the i 
 name of the applicant must be written on the j 
 area or areas applied for. When the relator j 
 made his application, areas had not been laid j 
 off, and no plan had been prepared, so that j 
 applications, if made at all, could only be made j 
 under the 36th section. As I read the Act, 
 applications are to be made under the 14th and 
 J5ih sections, when the areas are within a gold 
 district laid off as described, so as to enable the 
 
 jjrovisions of those sections to be carried dut, 
 otherwise, under the .Sfitli sectinn, wliidi inu- 
 vides that when the mine is not witiun any pin 
 claimed gold district, the rights of parties ami 
 the proceedings to be taken with rffi'iiiiLu 
 thereto, shall be governed as far as possihli- liy 
 the spirit and provisions of the chapter, mul 
 that parties occupying and staking olV iul;i> 
 corresponding in size with those presentecj, 
 simll be entitled to priority in the order <it ilaii 
 nuiking applications, and, in case the laud ,-o 
 applied for shall afterward be included ui luiy 
 j'.old district, and laid off as thereinbefore ilu- 
 scribed, the rigiits of the occupants sli;dl \iv 
 r-ispected, so far as is consistent with the terms 
 of the chapter, in adjusting the boundary lino 
 between the parties in occupaliou. This setitinii 
 i of the Act shows the intention of the Leglslii- 
 ■ ture to have been, that applications iov leases 
 i might be made at any time for areas wheievoi 
 situate, whether within or without the limits of 
 a gold field, the applications to be governed liy 
 the spirit of the Act when it was not pnssilile 
 to comply with the letter of it. 
 I Atlorney-Gtiieral v. McDonald, 2 N. S. 1)., l'2'i. 
 
 3rd R. S., c. 45, s. 1 - (Appointment of 
 
 ; County Treasurer) — 
 
 It has ever been the policy of our Legislature 
 to limit all County and township appoiutinents 
 to one year, and on reading this section we see 
 nothing in it to warrant the presumption tluit 
 as regards the office of County Treasurer tlmt 
 policy was intended to lie departed from. 
 
 So: BOND, :): 
 
 3rdR. 8., C. 45, s. 15- 
 
 Ry chapter 4,-), R. S. , (3rd series,) " Of CouiUy 
 Assessments," section 15, it was enacteil tliut 
 the words " per.sonal estate" and " persoiwl 
 property," for the purposes of the Act, should Ik' 
 understood to include all such goo<ls, ehatteU. 
 and other property, as were enumerated in 
 Schedule A, thereto annexed, and no otlier, ilie 
 only portion of Schedule A applicable was ii- 
 foUows : " All personal chattels of every kiivl 
 and description at their actual cash value." 
 
 The l?ank of Yarmouth having been assessi i 
 under the above enactment, as personal estutf. 
 for $!20,000, the average amount of cash on haiul. 
 and for §100,000 cash lent out. 
 
 Held, that the bank was liable to he asses>. i 
 for the average amount of stock on hand an' 
 the value of personal property, exclusive "i 
 stock, but not for the amount of cash lent out. 
 
 The phrase "personal chattels" means only 
 such things as animals, household stuH', money, 
 
1453 
 
 STATUTES, NOVA SCOTIA. 
 
 1454 
 
 jewels, corn, garments, and everything else tliat 
 can 1)0 put in motion and transferred from place 
 to place, but does not include clioses in action, 
 notes of hand, lionds, and securities for money 
 loaned or due, which may he realized upon by 
 action or suit, or otherwise. 
 
 of Sessions has no right to set aside the whole 
 assessment, but we think that if, on an appeal 
 by any party complaining of the assessment, it 
 were made to appear that tiie rate was irregu- 
 larly, and therefore illegally made, that Court 
 would have the power of so declaring, and give 
 
 In re. The Bank of Yarmouth, '2 N. S. 1)., ,ms. the relief sought. 
 
 In rf. A'tics-immif Srhool Ihtfcs, SirHou 4?, 
 
 3rd R. S., c. 45, s. 16-t'f. 5th R. 8., c. 58, 
 
 s. 5— 
 
 The Windsor & Annapolis Railway is a Pi'o- 
 vincial Railway within the meaning of chapter 
 
 Anthionish, 3 N. S. 1)., \'21. 
 
 3rd R. 8., C. 41, ss. 3, 4 «L' 5 - 
 
 S. 3. " Tltc, liriind Juries in the several 
 
 4."), Revised Statutes (3rd series), "Of County i Sessions of the IWire shnll Hnnunlbj nontinate 
 Assessments," sec. 16, and is exempt from assess- s"*"/' numlier of persons for Town offlrers os 
 
 nient under the Act. 
 
 the Justices shnll dirert, out of ri'hoin the 
 
 The true tost of exemption de])onds ujMn the Justices shall appoint such number <ts ViO'j he 
 fact, whether the road is or is not a portion of | deemed expedient. 
 
 the Provincial Railway. 
 
 S. 4. ' ' //■ the Grand Junj and. Sessions shall 
 
 The Connty of Annapolis v. The irindxor and hiot cipprjint ft Surveyor of llighicnys or other 
 
 Annapolii Raihray Co., 2 N. .S. 1)., 307. 
 
 3rd R. 8., c. 45, 8. 6!- 
 
 Per Ritchie, K. J.— 
 
 ISy this section, no certiorari to remove rates 
 
 usual County or Tou'nship oxlicer for a par- 
 ticular district, any tvo Justices of the Peace 
 of the Township or Settlement may make such 
 appointment." 
 
 S. 5. " The officers so appointed shall be 
 respectively sworn to the faithful dischare/e of 
 or orders, or other proceedings of tlie Sessions j their duty before a Justice 'before entering 
 touching rates, shall be granted, but upon mo- ^;,,,,.^oh ; and upon refusal to accept (-i«''e or 
 lion in the first week of the next term in the veijlect to be sworn in within fourteen dat/s ; or 
 County, after the time of appeal \^^» c}im-<i'\, \misbefmviour therein, every such officer for each 
 and before its being made to appear by affidavit ^,^^„,.p gJ^„^ f„^.f^n ^,v//,« dollars." 
 that the merits of the (luestion will by sucli ^yhcrc the Custos under sec. 4 summoned a 
 removal come properly in ju.lgmcnl, and no , ^^^^^^-^.^^ Sessions to appoint a constal)le for a 
 rates or orders shall be quashed for matter of , ^y^^^^.^^^ „^,„g,|^ ,^.1^^.,.^^ .^, t,,^. j,^^;^^. ^^^^^^i^ 
 
 form only, nor any general rate for any illegality! there was a deficiency of constables, and the 
 m^ the rates of mdividuals, e.xcept as to such | Special Sessions pursuant to such notice met 
 
 and appointeil two constables. 
 
 Held, that the two constaldes were duly 
 appointed under sees. 3, 4 and 5. 
 
 Pineo v. Shaw ft al., 1 X. S. I)., ,3G2. 
 
 3rd R. 8., c. 48 -Cf. 5th R. S., C. «J- 
 
 (Of fences and fence viewers, and impounding 
 of cattle) — 
 
 The contention that tlie rule of the Common 
 Law in relation to partition fences has been 
 virtually .<;uperceded ))y the provisions of this 
 chapter cannot be supported, for there is nothing 
 in this Act to alter or affect in any way the 
 Common Law principles applicable to the making 
 of such fences. 
 
 A fence viewer under this Act has no power 
 or authority to fix and establish any line of 
 division or boundary between tlie adjoining 
 owners of land. He is merely re(iuired to de- 
 cide what proportion of fence each proprietor is 
 to make when the boundary or division line is 
 fixed or assented to, and to make the fence 
 
 individuals. Without taking away from the 
 Supreme Court the right of reviewing the pro- 
 ceedings cf the parties making the school rate, 
 or tliose of the Sessions on an appeal to them, 
 the Legislature contemplated that in ordinary 
 eases the appeal in the first instance should be 
 to the Sessions, and the case before us is one 
 wliich that Court could well have dealt with, as 
 tlie (|uestion raised liy the parties objecting to 
 the rate ir»vohed for the most part matters of 
 detail, such as the regularity of the calling of 
 meetings, the appointment of a secretary, 
 wlictlier certain persons were or were not 
 resident within the section, and wlielher cer- 
 tain other provisions of the School Act had or 
 had not been complied with by the trustees, 
 &.C., all of which could very perfectly be inves- 
 tigated by that tribunal, and under such cir- 
 cumstances the p. I'ties dissatisfied with the rate 
 should not pass by the appeal given them by 
 the Statute, and resort to this Court by remov- 
 ing the proceedings to it by certiorari. It was 
 urgeil before us at the argument, that the Court 
 
1455 
 
 STATUTES, NOVA SCOTIA. 
 
 145(j 
 
 thereon in case titlicr of tlio proprietors, after 
 due notice, nlial! neglect to make it. 
 
 Hnntn- v. Itoiim,'!^. S. 1)., 11.^ 
 
 3r(l R. S., e. 58, 8. '2«- 
 
 *" '2ml R. S., c. 60, 8. 10- 
 
 3Pd R. S., c. 00- 
 
 s.c CERTIORARI, G4. 
 
 3rd R. S., c. «2, ss. 2, 3, 4, and «- 
 
 Tilt language of section "i is as follows : "A'n ry 
 mate lutirun Iht wjct of Ki and Ud, Iiuikj uh/i fo 
 do a reaxoniih/e day's irork; xhall hn Uahh to ;)< r- 
 form firo days lahor at a j>oll-tax." Section .S : 
 '^ A// 7,ift/i s irfio-si liumi'i an iwlitdid in. fin 
 niisexmiHiit roll and. «.<«.>■«'// /o*' any turn onr 
 .$•■200 (liy Acts ISO."), c. 1, s. 4, reduced to .^KKt), 
 Khali III llahli lo jirrform, in addif'on, wrordimj 
 to the folloirin;/ xmh " : then follows a scale 
 graded to meet the exigencies of the case and 
 the circumstances of the population. Section 4 
 provides for the case of males over (iO years | 
 holding properly over .'*1,(XH), and section G of j 
 this chapter (02) regulates and makes liable j 
 " y/co/'( ;V)/ (■/( Ihi lianil-i of exi rntorx, adminix- 
 Iralorx, truxtn-x, aijintx, <iitnrdi(inx and n'onHn," 
 where property is over .*>I,(Kl(> in value, for taxes ' 
 to make and repair highways. Corporations, i 
 it is true, are not named in section (> of the Act, ■ 
 but the intent fif the Legislature so clearly ex- 
 pressed, to tax, not persons only, but property, ; 
 and that in the hands of trustees, agents, and [ 
 <itliera in fiduciary relations, brings a corpora- 
 tion like the Bank of Yarmouth clearly within 
 its purview and within the scope of the decision. 
 
 //( w riii Bank of Yarmoutii, 2 N. S. I)., .-^08. 
 
 3pd R. S., c. 63 and c. 65- 
 
 Stt ASSIGNMENT, II., -'. 
 
 3rd R. S., c. 10— An Act to authorize the 
 
 Construction of Railways in this Province — 
 
 P,r McCully, J.— 
 
 The preamble is as follows ; " \\'h<rfn!i.i&c.,th(', 
 constrw'tinn ami min'nti'nanrr of a trnnk line 
 of railnaij from the harhor if Halifax to the 
 frontier of New Brunswick, with branch lines 
 cxtendinfi to the harhor of Pictou and to 
 Victoria Beach," (a place in the direction of and 
 beyond Annapolis,) " mv7/ ijrealhj ficilitate the 
 internal trade of Xova Scotia, will develope 
 her resources, enlnri/e her revenue, and open 
 more frequent and easy communication with 
 the neighhourimj Province and States: — " 
 
 In this preamble the policy and object of 
 constructing railways in this Province from and 
 
 to the points <le«cril)ed, are clearly set fditli, 
 and the railway between Windsor and Anna|.iili.s 
 constitutes, as will be hereafter seen, a scctiim 
 of a branch from Halifax to Victoria lieacli. 
 Section 1 declares that "the lines,"— in tlic 
 plmal number — of railway to be constructed 
 under the provisions of this Act shall be jiublio 
 provincial works, &c. Section 2 (U'signates 
 the line to be first completed and constiluu.s it 
 a common trunk. It was to liegin at tlie iiarlinr 
 of Halifax and extend northerly, and this tnuik 
 was to be common for all the lines to be there- 
 after made under the provisions of said Act, 
 It is the trunk line for thi^ \V. & A. Railway ut 
 the present time. .Section 3 provides that after 
 the comnum trunk shall have been so complctcil 
 "tlie railways," — in the jjlural iiuml)er— "sludl 
 be carried on in such directions as .sliall be up- 
 proved of by both Houses of the Legislature,'' 
 &c. The remainiler of the Act is devoted to 
 details jiroviding for the manner of construct iiii,' 
 tiiose railways, maintaining, repairing and u.-iiig 
 them. 
 
 In the year IS.'^ti was passed an Act of the 
 Provincial Legislature, entitled, "An Act to 
 establish a more eijual and just system ot 
 assessment," wliicli, amended and consolidateil 
 with other legislation, constitutes chapter 4.') of 
 the Revised Statutes, .Srd scries. Under it tlie 
 present assessment is made and sought to be en- 
 forced. Section 16 of chapter 4.5 (being a trans- 
 cri])t of section 4 of chapter 20, Acts l.s.'itl, 
 slightly altered in some jjarticulars) exeniiits 
 from tax " the Provincial Railway njlling stotk 
 and railway stations and lands attached tiieieti) 
 or to the railway." 
 
 The contention o;i the nart of the aiipellants 
 was that the railway was a Ijranch of tlie trunk 
 line described in 18o4, and that it is a Proviiaiid 
 Railw iiy "within the exemption clause of cliapler 
 4.") above mentioned." On the part of tlie 
 respondents it was contended that this railway 
 being constructed by a company incorporated liy 
 chapter 1, Acts of I8(i6, by the name of the 
 Windsor &■ Amiapolis Railway rompaiiy, ami 
 under an Act passed on the 2nd day of May, 
 ISO,"), and the agreement set out in the Act of 
 1806, it was not a Provincial Railway within the 
 exemption of chapter 4.5, and was therefore lialjle 
 to be assessed and rated as the property of an 
 incorporated company. 
 
 To entitle the appellants to the exemptimi 
 sought it mil t be clearly made to appear tliat 
 the Windsor iS: Annapolis Railway is a Provin- 
 cial Railway. Now the agreement set out in 
 chapter 1 of the Acts of 1866, in its very tir<t 
 clause refers to the Act oi 1865, and sets out 
 its own title as " An Act to provide for the con- 
 struction of two other sections of the Provincial 
 
1457 
 
 STATUTES, NOVA SCOTIA. 
 
 U58 
 
 Hnilways." .S'k also flmp. 7, Acta of l%7. In 
 the view nf tlic Legislature there iicnxt has been, 
 I tliiiik, anil tlicre in not at present, Iiut one 
 I'lovint'ial Railway in Xova Suotia, tlu)\igli 
 wiicre referred to tin trunk and branuhen, it is 
 siil>se(|uently spoken of as tlie Provinrial Rail- 
 ways, composed of a trinik running northwardly 
 with two braiu-'hes, one ruiniing from Truro to 
 Pictou, the otlier from Windsor towards Vic- 
 toria Reach, and the Act of lH(i,"» makes provisif)n 
 " for the construction of the followin;,' sections," 
 (using the language of the 1st clause): "of tiie 
 IVovinci.'il Railway, that is to say, from Truro 
 to tlie boundary line of New Ri'unswick, and 
 from VVindscjr to Annapolis," etc. (^in language 
 make it clearer that the Windsor & Annapolis 
 Railway is a section of the Provincial Railway? 
 County of AmmiioUx v. W. li; A, li'y Co., 
 
 •-'X. S. "l).,.S97. 
 
 -SV. RAILWAYS, •■> and IS. 
 
 3r(l R. S., 0. 10, s. n- 
 
 Dofcndants were empowered by Statute to 
 inter and take possession of lanils recjuired for 
 tlie track of their railway, station, kc, the 
 lands taken to be laid otF by metes and bounils, 
 and a ])lan and (lescri])tion of it recorded in the 
 Registry of Deeds for the county where the 
 land was situate. The Statute prescribed the 
 extent of land to be taken. 
 
 //'/'/, that the company could not, by making 
 a survey and tiling a description, acNpiire a title 
 to private property lying beyond the statutory 
 limits. 
 
 DeWolf V. Punrhanl, 3 X. S. D., 224. 
 
 3r(l R. S., c. 10, ss. 44-59- 
 
 i^te RAILWAYS, 2. 
 
 3r(l R. 8., c. 72, s. 2- 
 
 " The Governor in Counril at the rtquent of 
 •my of the propreitor» of any inurth, xiramp, 
 or mindow-land may appoint am or mori Com- 
 miasicintrs of Seirers for the Connty, Ton-n^hip, 
 w place where mich lauds lie, u-ho shall he sn-0)-n 
 inlo office hy a Justice of the Peace, and such 
 -wenrinij shall he entered in the Commissioner's 
 Book of Record, which shall he erielence of the 
 /net, and the Commissioners shall appoint a 
 Ckrk; who shcdl he sirorn into office hy any of the 
 Commissioners," d-c. 
 
 Plaintiffs, as Conimissioners of Sewers for the 
 'listrict of B. and M., brought action against the 
 ilffendant for certain dyke rates assessed on the 
 wners of marsh lands in that district, for con- i 
 ^inictiiig and repairing necessary dykes, etc. I 
 r>efendant pleaded that plaintiffs were not 
 
 Commissioners of Sewers for that district. The 
 I Act regulating the appointment of such Com- 
 missioners proviiled that on lieing appointed 
 they should be swoin into olfice by a Justice of 
 the Peace, and that such swearing shoulil 1)0 
 entered in the Comuiissioners' Rook of Record. 
 It af)pearei' that oidy one of the |)IaintitfH had 
 full:!!od this reijuirement, but all threi^ had 
 acted as Conniiissioners for several years. 
 I III Id, that in thus directing as to the entry of 
 the sweating it was not intended by the l.egis- 
 ' lature to shut out all other ])ioof of (|ualitication, 
 ; and that there was sufficient evidence aside 
 'from this to afford the presumption that the 
 plaintiffs were legally a|())ointe(l and duly 
 authorized to act in this asscsstnent. 
 I Jiaker et at. v. McFarlaw, 2 X. S. D., 94. 
 
 3nl R. 8., €. 72, ss. 2, 3, .i, 7, and 12- 
 
 The 2nd section empowers "the (iovernor in 
 Council to appoint one or more Conniiissioners 
 of Sewers for the County, and they are required 
 to be swf)ru, the swearing to be entered of record 
 in manner prescribed, which shall be evidence 
 of ihc fact ; and the Cominissioneis shall ap- 
 point a clerk, who shall be sworn, and the 
 sweari. >,' entered of record in manner prescribed, 
 as ev deuce." The '.\vA section authorizes X.\\r>- 
 thirds in interest of the proprietors to select 
 one or more Coininissioners to carry on any 
 work, &c. ; they may add to or diminish the 
 number of Conimissioiiers so selected, or super- 
 cede, (fee , and the choice or dismissal shall be 
 in writing, recortled in the prescribed manner." 
 By the 7th section the " Commissioneis " so 
 chosen may assess, &c. Hy the 12tli section, 
 "all fines, rates, and assessments shall be re- 
 covered by and in the names of the ' Conunis- 
 sioners ' so appointed and chosen, with costs, as 
 if the same were private ilebts." The Act is 
 loosely and ungrammatically penned, and " rel- 
 atives" have in many places no clear relation to 
 the "antecedents" to which they are probably 
 designed to defer. Singular and plural numbers 
 iire also blended together in confusion. On the 
 whole, however, we think that the selection 
 referred to in the .Srd section has relation to 
 "a Commissioner or Commissioners appointed 
 by the Lieutenant-Oovernor," and that if one 
 only be so appointed, the selection must be con- 
 fined to that one, although many other provi- 
 sions of the sections will, in that case, there- 
 fore be inoperative. We think, also, that 
 wherever the appointment by the Lieutenant- 
 Oovernoi' is of one only, the word " Commis- 
 sioners " occurring in sections 7 and 12 must be 
 read ' Commissioner ' in the singular number. 
 We think, also, that the word "Commission- 
 
1459 
 
 STATUTES, NOVA SCOTIA. 
 
 i4f;o 
 
 CIS," in section 12, relatively to the case before 8rd R> 8.» C. 83 — 
 
 m, which presontn na ii fact, tlmt *\i\» pliiiiitiff Uoiu'uUmI iiy Duiuinioii Acts IST.'J c. 40, so fm 
 
 was selcctfil C'dinniiMsiontT of tlie Villagf Dyke as it relates to tiic rt'j<ulation or insiHvti.m of 
 
 l)y two-thirds of the proprietors thereof, might " fish and oil, tlour and meal," itc. 
 
 ho read " ("ommissioner," and that the words 
 "n])pointed and chosen" must lie read in tlie 
 sense of participles of the verhs "select" and 
 "choose," which are used in the thiril section. 
 We are, therefore, of opinion tiuit the action 
 can l)e inaintaineil liy Davidson ahmo, although 
 at tlie time of liis selection, and wlien the work 
 was (lone, the defendants were named with him 
 in tlic Executive connnission. 
 
 Dariilion v. Lairri iif if al., 1 N. S. D., 3'2. 
 
 3rd K. S., 0. M, 8. 24— 
 
 (Founded on 7 & H Vict. c. 112, s. 1")) 
 
 Su Acts 1S(U, c. Si, s. 450, &c., siijiffi. 
 Tin City of I[iilifiix V. Ciiiniliniliiiiii, 
 
 1 K. S:*..,V^. 
 
 SrdK. 8., c. 8ft, s. 14- 
 
 " //" iitn/ On rti I r-i on In liai/ of llti 'J'lurii'liij: 
 or any other pi-rwu ■iliull j'nl wjiiriinil hy niiij 
 l>rori.ali)iii niidir this Chajili-.r, siirh OrerHftrt or 
 /iiTiuii mriy nppial to tin: next Si tsioiix to li- liiUI 
 for fhr County irhm tin Toiriiihip /i or ih 
 pernon tihaU rrsidc., and tht SLiiionx xhnll hnr 
 and detirmuie tht mme ; but in caien of dix/miiil 
 Hftthmintx an ajiprat xlinll I" from thi-ir derision 
 to thi: mxt term of tht Sn/irtrnt Court in flu 
 
 " That the award of flit Jnsfiox shall l,t fnal County or to n Jadijt at Chaml>trx." 
 and rourhmri'." Hild, tliat no appeal lies directly to tlie 
 
 Tlieso words do not wrest from tlie Supreme Supreme Court, from tlie decision of twu 
 Court its) jurisdiction hy nrfiorari, and do not JuMiicos ordering the removal of a i)auper. 
 apply wliere tlie rules of natural justice have />, ,. Hliss, ,J.— If even tlie aiipeal had coiuf 
 been plainly violated, as if a party were con- regularly before this Court, the duty of tlic 
 deiniied on insutficiciit notice, or without being (ji,\\n is not to try the case, but merely to say 
 heard at all. i whether on the evidence given before the two 
 
 Criiirhy V. Andirson, 1 N. S. D., 3S5. Justices, their decision was correct. We luivf 
 
 \ no power to take new evidence. 
 I Ortrxttri of tht Poor for Oreenticid v. 
 
 von- 
 
 I'lnn. 
 
 3rd R. S., c. 4.1, 8. '24 - 
 
 .S" ; JL'8 Vict. e. 112,8.13. 
 
 3rd K. S., c. i:i,^.i9 — 
 
 The Stipendiary Mai/istrntt at Halifax . . . 
 •ihall, irithin tht County of Halifax, . . . 
 hare, and extrri.ie. tht samt juri-tdirtion as i 
 ftrrtil hy this rhnpti r on tn-o Justin s ofth 
 The jurisdiction of the Stipendiary Magistrate 
 uniler 3rd Revised Statutes, c. 73, is concurrent 
 only with that of two Justices of the Peace and 
 not exclusive. 
 
 In this case the writ was signed by and made 
 returnable before the Stipeailiary Magistrate, 
 but two Justices of the Peace were substituted 
 for him on the trial by the request of the defen- 
 dant. 
 
 Htld, that the irregularity, if any, was cured 
 by the assent of the defendant. 
 Andtrxon v. Mason, 1 X. S. D., 1 ; 2 Old., 369. 
 
 3rd R. 8., c. 82, s. 1— 
 
 To an action on a promissory note defendant 
 
 Ovtrxters of tht Poor for Goihtii, 1 Old., 09."). 
 
 3rd R. 8., c. 91 -Cf. Sth R. 8., C 37- 
 Stt STATUTES, IMPERIAL, 
 
 1 & 8 Vict. C. 101, 8. 3. 
 
 3rd R. 8., c. 95, s. 5, 8 and 18- 
 
 Stt JIDOMEM, 1. 
 
 3rd R. 8., c. 112, s. 23-Cf. 5th R. S., c. 
 
 89, s. 25— 
 
 " When any rtal estate shall he dtvistd, to any 
 person without any words of limitation, swh 
 derise shall lit construtd to pass tht ftt sinipit or 
 other, the whole e'ltate or interest whirh tk 
 testator had power to dispose or hy will in sitfh 
 real estate, unless a contrary intention shall appKir 
 by the will." 
 
 Quaere, whether this section is not retro- 
 spective. 
 
 In the Act concerning wills passed in 1840 
 pleaded usury. The note was expresserl to be (c. 2.")) and borrowed almost literally from tlic 
 for the sum of £40, but the evidence went to | English Act of 1838, it was provided by section 
 show that defendant actually received only £38, j 30 that it should not extend to wills made be- 
 although he paid interest upon the larger ' fore Oct. 1st, 1840 ; but this limitation has not 
 
 amouiil for the space of two years, 
 
 Held, that the transaction was usurious, and 
 that plaintiff could not recover. 
 
 Hutchinson v. Dill, 2 N. S. D., 448. 
 
 been repeated in any of the third series of the 
 Revised Statutes. 
 
 A mere devise of lands, previous to the enact- 
 ment of the above section, was insutiioieut to 
 
14G1 
 
 STATUTES, NOVA SCOTIA. 
 
 1462 
 
 pass a foe ftiinpU;, Imt if tlio tostatrir, in iimkiiig 
 tin; (lovise, at the Hame IIiir' iiniMiHt'd ii uliai'gu 
 upon tlic (leviHcu, tlicii tlio (w woulil pan«. 
 
 Chisholm V. Marlfonnill, \ \. S. 1)., 137. 
 
 3rdR. S., c. 115, 88. 2 -lU- 
 
 Hchl, that these 8cction8 lire directory for the 
 iiiiiHt part. 
 
 SmiiU V. Mrhar. fl al., 3 \. S. !>., 11(1. 
 
 »rd R. 8., c. 115, 8. 3 and 10 -CT. 5tk R. S., 
 
 c. 124, a. 9 - 
 
 " Whin (I jiiilijinint fifty hri'n ko r<;iisf,'ri'l for 
 Ihi /itrlod of one yiar, and no livy /ia» liuv lUcuh 
 on (he real < state hound thereby, any jmhjminl 
 rndl/or irhote jtidinnrnt hit'* h'ln snlmiini )il/y 
 riijiili'rcd, may, Inj <i irrillut notic, rifinir^ tin 
 ]irior jndijmint creditor to levy on Ih real entatf 
 v'ithin thr«i montlit. The Shi riff shall diUra-to 
 thi jiurchasir a diid of snih lands, irhich shall 
 III snff'rii.nt to ronriy to thf jinrrhasir all thr 
 interest of the difindant in the lands tlurtin 
 described, mibjectto prior incumbrances." 
 
 Tiii? notice is not indispen.sahle to ynalile the 
 SiieritT to give a valid deed where he .«elU under 
 a second or third judgment. The general scope 
 oftiie Act, and the language of section 10 i.s j 
 inconsistent with the idea that sucli notice is 
 indispensalile. Tlie right of a second mortgagee 
 to foreclose was recognized hy the Court in 
 Kaster sittings in Barss v. Chase, March, ISO'i, 
 although the right may be .subject to fjualitica- 
 tion, and can in no wi.se affect the interest rif a 
 fust mortgagee. A second or subsecjuent judg- 
 ment creditor can also sell the land of the 
 (lefendiint, whose interest will pass to tiie pur- 
 chaser, " mOjjtct to ]irior inrumbrann s." 
 
 Smith et al. v. Smith et al., -J Old., Mi. 
 
 3rd R. S., c. 118, s. 3- i 
 
 See STATITES, IMPERIAL, I 
 
 19 & 20 VIrt. c. 07, 8. 3. 
 
 j 
 
 3rd R. S., C. 119, s. O-Cf. 5tli R. S., C. 92, 
 
 s. 10— 
 
 " The expression ' ///// of salt ' shall include bills 
 of sale, assii/nnients, A-c. ; but shall not include 
 the followiny docttmentu, that is to say, assiijn- \ 
 mtntsfor the i/eneral benefit of the creditors of the 
 jvi'son makin;/ or f/irini) the same, mai-^-iaije .st^ 
 llements, «It." 
 
 A preferential assignment, no matter how slight 
 
 or meritorious the pieference may be, is not an 
 
 "assignment for the general benefit of all the 
 
 creditors," within the meaning of this section. 
 
 niack V. Sawyer, 2 Old., 1. 
 
 See STATUTES, IMPERIAL, 
 
 IS ii 19 Vict. C. 36. 
 
 3rd R. S., c. 124- 
 
 /'<;• .Sir Wm. Young, ('. J.— 
 We have a facility and advantage in e(|uity 
 cases in this Court which they do not enjoy in 
 j Kngland. Although the Chancery Courts there, 
 ' under recent enactments in the years IS.IS and 
 l.S(t,S, may call in the aid of a jury to settle dis- 
 puted facts, it is rarely resorted to, because it 
 is alien to tlio habits of thouglit and the pre- 
 possessions both of Bench and Uar. Itut here 
 it is the familiar practice, and 1 must take occa- 
 sion to reiterate my strong conviction and desire 
 in the interest of suitors, that the practice of 
 the Knglish Courts of Chancery should never be 
 intioduced into this t'ourt, except by legislative 
 enactment, when our own Common Law prac- 
 tice will avail. Under the Rev. .Stats., c. I'J4, 
 and the Acts of iHOfi, c. 11, equity causes shall 
 contunie to be tried liefore a jiu'y to whom 
 issues of fact shall be submitted." How is their 
 verdict when rendered to be treated, ami on 
 what principle is a new trial to be granted or 
 withheld ': In my opini(m, precisely on the 
 same principle as on the Common Law side of 
 this Court. 
 
 Hanks it al. v. ll7/>0((, R, K. D., '-MO. 
 
 3rd R. 8., C. 124, 8. 43- 
 
 Wlien either party in a cause has invoked 
 equit}', whetlicr by plea or ajjplication, so far 
 as my e.vperience goes, this Court has hitherto 
 granted all the relief to be obtained from a 
 Court of E(juity previous to the enactments 
 contained in c. 1'24, Revised Statutes, sec. 4.S. 
 Hank of Xora Scotia v. Forman et al., 
 
 3N. S. ])., 154. 
 
 3rd R. 8., c. 124, ss. .11 and 53 -Cf. 3th 
 
 R. S., c. 104, O. LL, R., 1 and 5- 
 
 The power ovei- the real estate of infants, 
 conferred by chapter 124, which was first passed 
 in the Chancery Abolition Act of ISuo, far ex- 
 ceeds any ])owcr that has ever been exercised in 
 England. 
 
 //(•/(/, that the discretionary power of the 
 Court to order a sale was not determined by 
 the appointment of a guardian, and that where 
 the guardian, wIk) was the mother of the infants 
 was opposed to the sale, and neglected or refused 
 to find security as required by 3rd R. S., cap. 
 124, see. 51, the Court had power to remove 
 such guardian, and substitute in her stead a 
 suitable person as next friend to file the neces- 
 sary bond and effect the sale. 
 
 In re Estate of Lawlor, 2 N. S. I)., 153. 
 
 8rd R. 8., c. 127, ss. 11 and 12- 
 
 S. 11. Enacts that "administration of an 
 intestate estate shall be fjranted to some one or 
 
UO:} 
 
 STATUTES, NOVA SCOTIA. 
 
 14G+ 
 
 iiirin (it ihi /ni-'oii'i hii-iiiinjhr mnitioiitil, iiml attorney, thoiigli duly utlvtrtiHfil, lunl in tliu 
 
 Ihii/ "hdH In riMp,i'tlr,h/ oilitlid thinio in Ihi^ L'omt Iicmimo in tliu imvmciu'i' of lliivc |MrH(inH 
 
 fn/hirlii'i ofilir :—Fli:i/, th. iriiloir, or nixl of (inly, ami with no mil (diniii'tilidii, Mlidiild liiml 
 
 kill, or liotk 11.1 /hi Jiiiliji of I'rolinli may think the widow niul cliildri'ii of thu dfciMiHed and all 
 
 fl. If Ihiij ilo iiol i-uliiiilftrily lab. or nnoiiurv \\\n tTi'ditorH ; lait tlio roniody, if runicdy inn Im 
 
 aihui>ii'<lrali<iii Ihy xlml/ In rihil. Siromlly, if had, nuiHl he with tliu LcgiMlaluio. Knowing, 
 
 irithin ffii ilayx nftir Ihc lilation Ihnj ilo not /iro- an wo do, thi' hahits of tin; I'ountiy, it wdiiM \:i- 
 
 mil to laki (ul mini "I ml ion the Jiiil<j< of Prohah. too dangfiims, I think to hold such a Half ///<f> 
 
 may rommil it to ouv or more, of the jirinei/ial /aWo void, liy cruatin),' or ri'(|uiringclicck» which 
 
 eriilitriri, if com/ II tint ami irillinij to ninli r/akr. the Act dot'H not iiui'post!. 
 
 Iht trnsi, or to any othi r /» rxon on the a/i/iUfitlion 
 of one or more of the. vreililor*, iirond to In .iiifh, 
 rw Ac shalt think ft. Thirilly, if th' itinasnl. 
 in re a marvinl iroman, ailmiiiiitra/ioii of her 
 (state ■*hall lie. ijranled to htr hutliand, <lr,, il-c." 
 
 Mr /.(Oil V. liilliiH it at., 1 N. S. I)., •.',•(7. 
 
 3r(l It. 8., C. 127, H. 31- 
 
 " Ereriji'iinreijance hkkIh lunlirthe iiriivi.ti'in.t 
 of this rhfipter, and reijixterid in the C'nunt'j 
 
 S. 1:]. Kuacts that " in ea.iii -ineh of the. next ^i-here the lundK lie, shull In' luken "s premiiii,i- 
 of kin an shall he eonsidind liy the Jndije lie.-<l (i,-,. ,.,-,;i,.,i,;, that all the, jirnreedinijs mi n-liieh 
 qiialijled til ad mi nisi rati in any (-"tali .thdl ih-^ire ^^j,, ,y,^,j,(, is fnnnded n'ere rii/hthj had." 
 it, the Jniliji. may assoeiate leith him in the ad- wiifcc a tluud of land made hy au adniini!<tr,i- 
 miniHlratiou snrh person m may think Jit ami „„. „|„l^,,. ,i Hccumi! to sull and n^gislurud in the 
 pro/nr fir thai /inrpo.ie." County wheru thu lamln lay sul out that lliu 
 
 On tht! question whether the alternative in |,i.ii„titv was administrator and the ileed wa» put 
 the seeond i)aragrai)h of s. II is discretionary, jn (.yidence 
 or whether the Judge can only act on it in the //, A/, tlmt this was presuiniitive evidence if 
 
 event of no creditoi' lieiiig found coni])etent ami 
 willing the Court was e(|ually divided. 
 
 .Johnstone, R. .T.. and Dodd, .1. holding that 
 the appointment was discretionary with the 
 .Judge of IVoliate, and DesHarres and Wilkins, 
 .J.J., liolding that the princijjal creditor, being 
 first applicant was legally entitled to ailministra 
 
 plaintitl' lieing administrator. 
 
 Smith v. Mel.ian il ft/., 1 N. S. ])., ;U0. 
 
 3rd R. S., C. I'll, H. 10 -Cf. 5tli K. 8., e. 
 
 100, 8. 72- 
 
 " Xiithinii in the preredlmj section runtained 
 
 tion in default of acceptance by the parties I «''"'' "/'"'^ ''"'''•" ''"" "« """•'.'/".'/'■^ '>f ^•'■"\"' 
 primarily entitled, and that the .Judge of 1 i^'-^'y'| ''''<«f';; '^'^'^^ •'"'l^'";;''';' ';;^'^^^'';;;;,;,'^ 
 
 I'robate had n 
 him. 
 
 iliscrelion, but must appoint 
 
 the lifetime uf the deeeiined pernon, so far an the 
 
 been realized ;" 
 
 nine of the ])ri>pertii so mortijai/ed nr himh 
 In re E--^tate ofBraim, 1 X. .'^. 1)., .S90. j hunnd hij swh jmhiment Hindi eHend ond no 
 
 more, leavinrj the mortijaijea ur iudijment ereiH- 
 
 tur at Ulicrty to claim as any other creditor fur 
 
 3P(1 R. 8., C. 127, S. 28— I ^^^^^ i,„i„ure that may remain dne to him n/ler 
 
 " Eri ry linnse shad he entered in the h'u/is- \^j^^ ^.^^^^^^ of .vtrh property or lands shall have 
 
 Irar'.i hook, and a copy thereof duly certijied hy 
 
 the, Judije or Jiei/istrar shall lie reijistered in the 
 
 office of the lUylslrar of Deeds for the County 
 
 or Di-^trirt in n-hieh the real i.itati may lie, and 
 
 snch artifed copy, or a copy thereof from the 
 
 ReijiMry certijied. under the hand of suck Reijistrar 
 
 of Deeds, shall he, eridenct of such license in all 
 
 Courts, icithout j'urther proof. '' 
 
 Per Young, C. J. — Where the license has 
 
 See PROBATE COURT, 
 
 Srd R. S., C. 128, 8. 27- 
 
 " The constahle to irhom the execution shall lie 
 deltrered shall proceid jhrthirilh to lecy J'or tk 
 ■w.m due, and shall lake sufficient ijoods of the 
 party, aijainst whom the execution is issuiil, to 
 ■•<atisfy the same, and shall came an advertisemmt, 
 been didy granted under the '26th section, it is i ,;,,„.;,;7„„,^ /^g ,/oo'/.s taken, and specifyiwj the 
 safer, I think, to hold the registries under the I ^.^^^^ and place of the sale, to he posted up in tin 
 
 or more puhlic j^laces in the Township or place 
 wherein such sale is to he held, at least Jive dny.i 
 hejore the time appointed for snch sale." 
 
 An execution was issued by two Magistrates 
 on a judgment after the amount sued for liaJ 
 been paid to the judgment creditor, and suhse- 
 
 28th section as directory only, very proper to be 
 done, but not indispensable to the title. 
 
 McLeod V. Gillies et al., 1 N. S. T)., 277. 
 
 3rd R. 8., e. 127, 8. 32- 
 
 (Sale under license of Probate Court) — 
 
 Per Young, C. J,— It is certainly a strange quent to the death of the creditor, 
 thing that a sale by the clerk of the plaintiffs \ Held, that notwithstanding these facts, the 
 
14G5 
 
 STATUTES, NOVA SCOTIA. 
 
 UG(i 
 
 <'iiii.stul)li!>t to whom tlio execution \vii.-( iliiuctiMl, 
 were jiistitied ill Ifvyiiiy iiml Moiling tliuieiiniUi-, 
 A mere notice from iinyhoily of un ullegeil 
 defect in un execiiliun U nut sutUcicnt to arreat 
 u mile l)y the coiiMtulile. 
 
 Mrl'lmil V. Mi'KiiiiioH itnl.,\ N. S. 1),, Kjs. 
 
 3rd K. 8., e. I'is, s. »;)- 
 
 l!y section '_'.') of cluiptcc l!» " AiipeuN ffcir. ; 
 the (leciHion of the Justices for any iieualty or 
 forfciiture incurred under said chapter hIiiiII lie 
 granted in the nanie manner iih in the case of 
 tiuiiimary trials," &u. "And in case of vtrtiorari 
 instead of hail re((uired in such cases (see chap- 
 ter 14S), the same liond shall lie given as in ordi- 
 nary ajipeals. And in case of granting a new trial, 
 tiie Court may impose such terms on either party 
 as may liest promote the ends of justice." "By 
 section "J.VJ, chapter l.'i4 ; " It shall lie the duty 
 of an appellant in all cases, whether plaint ill' or 
 defendant, to enter the cause for trial or argu- i 
 uient and give notice of trial." And liy section 
 '-'.")" : "In a|.ipeal causes the appellant shall cause 
 his appeal to lie entered on the docket of sum- 
 mary causes, and in case he shall neglect to , 
 enter the same, the original judgment shall lie I 
 altirmed at the instance of the opposite party 
 with costs," liy section "i.iS : "In all causes 
 hrought up by appeal and contested, the Court 
 siiall try the same anew." The condition of the 
 appeal lioud is as follows : — " If tiie appellant at • 
 the next sitting or term of the Supreme Court for ( 
 the County shall duly enter and prosecute his 
 appeal, &e., or render the body of the appellant 
 and pay the costs, &c. , or shall, previous to tiic 
 Krst day of the sitting of such Court, pay the \ 
 full amount of judgment and costs, then. Sic." I 
 The first point to be ascertained in this case is, ' 
 what was the effect of the appeal thus demanded ( 
 hy defendant and perfected ? Hy the uniform | 
 piuctice in this Court, when an appeal is taken 
 from the decision of Justices of the I'eace in cases ' 
 of summary trials and perfected, the judgment 
 below is thereby, j'ywo facto, vacated, and the 
 case stands for a new trial. And by section 33 
 of ciiapter 128, referred to in section '23 of chap- 
 ter 19, " the Judge before whom the trial de 
 noro takes place shall confine the parties to the 
 particulars and set-off filed before the Magistrate 
 and shall permit no amendment thereof." In 
 other words, there shall be no new cause of ac- 
 tion or defence allowed on a second trial. 
 
 Hand v. Rockwell, 2 N. .S. I)., 199. 
 
 3rd R. 8., c. 134, s. 3- 
 
 " Provided ulwai/s that nothiwi in thix section 
 contained sha/l operate to prereiit a defendant no 
 amsted from negativiwj, under affidavits before j 
 
 ti Jiiiliji or (^'iiiniiii-'iliiiii r, Ih' furl of hi-t In iiiij 
 iiliDiit lit hari Ik, I'rovince ; uiid. ii/ion such 
 ajlii/ftrii, if ihi mini i< not ronlrndiriid on the 
 /mrtofthr plaintiff, siirh Jwlije or Commitiionir 
 xhall, ill hii diirri lion, iinlir hii iVurhiinji from 
 rilsliidl/ irilh or irilhonl runts'" 
 
 (^htaere, whether the defendant can also nega- 
 tive the plaintitl's cause of action, tiie Statute 
 only enabling him when arrested to negative 
 un<ler allitlavit the fact of his being about to 
 leave the I'rovince. 
 
 O'Donnill V. flonnjinau, I N. S. !>., 1(J1. 
 
 3rd H. 8., c. 134, 8. 20- 
 
 '• It nliiill hr hmfid fur (I Court or Jmlijn un- 
 ihr siirli ti riiis an to rusts or utltcrwisi: us thnj 
 sliidl think, lit, lU iini/tiine icithin one >jmr after 
 Jhinl judgment, to let in the defendunt in any 
 
 iictiiill iir ilpinid til difrnd the siUiie, 11)11111 iiii 
 
 <ippUrntiiin siijipiirteil liij satisfiirtorij (qHilitvits 
 accounting for the non-appeurunce, and diselos- 
 inij a defence upon the merits vith the purtien- 
 hir i/roiiiids thereiif, iiml offlilitcits shall not he 
 rereiced in reply, unless the Court or it Judge 
 shall otheririse order." 
 
 Held, that under this section " verily believes' 
 alone in an athdavit is nut sullicicnl, th.it the 
 deponent must have personal knowledge. 
 
 Malont V. Diujijan, 1 Old., (J97. 
 
 3rd K. 8., e. 134, s. 38- 
 
 " The Hon-joiiidtr of a pi r ion as plaintiff in 
 any action shall In. a variance to he aiiuiidid al, 
 or al any lime hifort, the trial hy the Court or a 
 Jndije, if it shall appear that such non -joinder 
 icas not for the purpose of ohtaiuimj an nndut 
 adrantaije, and that injustice would not he done 
 hy amendinij, anil that the omitted party consent 
 to he joined as a co-plaintiff." 
 
 Per Johnstone, K. J. — I think this section 
 only applies to cases where the omitted person 
 is a party with the plaintiff on the record to 
 make out a common right to the matter claimed 
 in the suit, and of whose non- joinder it was 
 competent to the defendant to have objected at 
 or before pleading. 
 
 Wheelock v. Morrison, 1 N. S. 1)., 345. 
 
 3rd K. 8., c. 134, ss. 51, 32 and 33— 
 
 Provides for trials of causes after writs issued 
 by leave of a Judge in this Court with plead- 
 ings, and also that a (| uestion of law, after writs 
 issued, may be stated for the opinion of the 
 Court without pleading. This seems to be a 
 consolidation of the .Statute of \Vm. 4., 
 though not exactly a transcript. By sec. 251, 
 chap. 134, Practice Act, a case entered into by 
 real parties, plaintiff and defendants and signed 
 
14G7 
 
 STATUTES, NOVA SCOTIA. 
 
 r.468 
 
 by counsel, may be filed, entered and agreed upon 
 without a writ, and judgment and execution 
 follow. The 15 & 16 Vict. chap. 70, seems to 
 have been the basis of our enactment on this 
 point, but they materially differ in several 
 retipects. 
 
 .■itimpmi V. .V. E. it- X S. Sfeamnhip Co., 
 
 3 N. S. D., 184. 
 
 3r(\ R. S., c. 134, ss. «2 & «3- 
 
 Ste FLEADINU, 54- 
 PKACTICE, 76. 
 
 3rd R. S., c. 134, s. 10- 
 
 Applies equally to demurrers in Equity as at 
 Common Law. 
 
 Ilormby v. Johnitoni:, 3 N. S. D,, 1. 
 
 3rd R. S., c. 134, s. 71- 
 
 Stt PLEADINO, 53. 
 
 3rd R. S., c. 1S4, s. H— 
 
 " The Court or a Jmbjt .shall, in all c'a«e.<, have 
 power oil nick terms as to co-its or otherwise as 
 they xhall think fit, to set aside, in irhole or in 
 part, false, friroloiis or rexatious pleadiw/s, and 
 /ilcadiinjs colourahly amended in pretended com- 
 pliance with a Judije's order to amend." 
 
 Ptr Bliss, J.— I think that to be " frivolous," 
 within the meaning of this section, a plea must 
 be false. 
 
 Per Young, C. J., delivering the judgment of 
 
 the Court— The facts showing the pleas to be 
 
 false, frivolous and vexatious should be stated 
 
 in the affidavit on which the rule is granted. 
 
 The affidavit must be made by plaintiff himself, 
 
 unices soiiiu sufficient cause is shov,-n \vh) he 
 
 should not make it. 
 
 Gibson v Kiky, 1 Old., 7'24. 
 
 See PlEADIX'tt, 41—54. 
 
 3rd R. S., C. 134, s. 80- 
 
 " Where a defendant intends to set npf-and as 
 ft defence to the declaration, or a plaintij) to rely 
 on fraud in answer to a plea of the defendant, it 
 must he jileailtd." 
 
 The defendant insisted at the trial upon what, 
 if true, he knew before the trial, and when he 
 pleaded that the telescope, to recover which 
 the action was brought, was not plaintiff 's, he 
 should have gone farther and alleged that she 
 claimed property in it under a gift fraudulent 
 by virtue of the Statute. Of course such mat- 
 ter of defence could not be entertained without 
 violation of a statutable rule of pleading. 
 
 Clarke v. Fullerton, 2 N. S. D., 348. 
 
 3rd R. Sm c. 134, ss. 70 & S3- 
 
 Fer Wilkina, J.— But let us now enquire what 
 position this defendant occupies when asserting 
 his right to contest the claim of the plaintiff to 
 the chattel in (juestion, arising out of a transfer 
 to her by her father, since deceased, and taken 
 out of her possession by defendant. He appears 
 only as the personal representative of the intes- 
 tate who was the donor of the chattel in ques- 
 tion. Section 79 of the Practice Act requires all 
 matters in confesiion and avoidance to be plea- 
 ded specially. So section 83 enacts that in all 
 actions for wrongs independent of contract, the 
 plea "did not do whai is complained of, ' shall 
 operate as a denial only of the wrongful act, ami 
 no othe.r defence than such denial shall be ad- 
 missible under that plea. And then follows: 
 " all matters in confession or avoidance shall Ije 
 pleaded specially, as in actions on contracts." 
 Turning to the only special plea on the issue, we 
 will find defendant confessing the taking and 
 ! rei.uning possession of the telescope, and alleg- 
 i ing his right to so on the sole and single ground, 
 i viz., " that it had been the property of Clarke, 
 ' deceased, and that defendant at the time of the 
 ! alleged taking and conversion, and at the time 
 I of pleading, was administrator, &c., of Clarke, 
 ! and as such took and retained," &c. So that 
 j whether he at those times, and whether any 
 other person was a creditor of the estate, is a 
 subject of insiuiry that is not before us under 
 the pleading. 
 
 Clarke v. Fullerton, 2 N. S. D., .348. 
 
 3rd R. 8., c. 134, s. 102- 
 
 "//t actions of libel and slander, the plaintiff 
 may aver that the words or matter complained of 
 were used in a defamatory sense, specifyimj such 
 defamatury sense, without any prefatory aver- 
 ments to show how such words or matter were 
 used in that sense, and such avernmds shall be 
 put in issue by the denial of the alleyed slander or 
 libel; and when the words or matter set forth, 
 with or without the alleyed meaniny, shew a cause 
 
 1 of action, the declaration shall be sufficient." 
 
 j Under the old practice, the colloquium was 
 
 ' indispensable. 
 
 I Under the above section the declaration nsed 
 no longer state any colloquium, but, after setting 
 out the words complained of, may put any con- 
 struction upon them by innuendo that the 
 pleader thinks fit. The most innocent words 
 may be alleged to be libellous. It is a ques- 
 
 ! tion wholly for the determination of the jury 
 whether the words alleged to be libellous can be 
 
 I 80 considered or not. 
 
 I Bowers v. Hutchinson, 1 Old., 679. 
 
1469 
 
 STATUTES, NOVA SCOTIA. 
 
 1470 
 
 3rd R. 8., c. 131, 8. 119- 
 
 (Dirt'ercnt causes of action may lie joined) — 
 Applies only to civil suits, and not to a mixed 
 
 proceeding, partly civil and partly criminal. 
 
 Bonk ofB. y. A. V. Budd et al., 3 N. S. D., 97. 
 
 3rd R. 8., c. 134, ss. 133 and 131- 
 
 See STATUTE8, IMPERIAL, 
 15 & 16 Vict. C. 76, ss. 128 and 129. 
 
 3rd R. 8., c. 131, s. 136- 
 
 " The Supreme Court and every Judge thereof, 
 'hall (it all timci have the power of amemliuij all 
 (k/ectn and trrori in all procudiniji in civil eauieK, 
 whither there lit anythiwj in rvritimj to amend by 
 or not, and trhtther the defect or error be that of 
 'he party or not, and all such amendvientH may 
 he made with or without costs, as to the Court 
 or a Judije shall seem jit ; and all such amend- 
 mints as may be necessary for the pmrpose of 
 ihltrmiuiiiij in the exiflimj suit the real ques- 
 tion ill controversy between the parties, shall 
 k made," 
 
 This section is, with some omissions which 
 impair its explicitness and force, tlie same as 
 •-'•-'•J of the Common Law Procedure Act. The 
 tirst i)art relates to disputes and errors in 
 proceedings, and would be applicable to such a 
 case as Cahoon v. Morrow, 1 Old., 148 (Set 
 AMENDMENT, 1, 5), if .Statutes were required 
 ill such a case. The latter part of the section 
 is of wider significance. 
 
 Wheelock v. Morrison, 1 X. S. D., 345. 
 
 3rd R. 8., c. 134, ,s. 131— 
 
 "Tlic party against whom such amendment 
 shall be made, if dissatisjied therewith, may 
 'ipplij to the Court for a new trial on that 
 [inmnd, and the Court shall thereupon make 
 mch order as to a new tried, and the terms on 
 "■hich such new trial shall be grunted, or such 
 iiiher orders as they may deem reasonable." 
 
 A discussion of tliis and the otlier sections 
 relating to amendment in chapter 134, and of 
 the suliject of amendment generally. 
 
 Wheelock v. Morrison, 1 N. .S. D., 3.32. 
 
 3rd R. 8., C. 134, s. 173- 
 
 '• The Court and the Judges thereof may 
 ■'X-rcise over the proceedings in the action the 
 ^ame jurisdiction \chich is at present exercised 
 'n the action of ejectment, so as to insure a 
 'ml of the title, and of actual ouster when 
 iimssary." 
 
 This section reserved the then existing juris- 
 liction of the Courts in relation to actions of 
 
 ejectment, so as to insure a trial of tiie title,, 
 and of actual ouster when necessary. 
 
 Wheelock v. Morrison, 1 N. .S. D., 343. 
 
 3rd R. 8., c. 134, s. 174- 
 
 Per DesHarres, J. — 
 
 The case of Lane v. Dorsay, and other cases 
 [ which have been decided and reported, must, it 
 ■ appears to me, until overruled, settle the princi- 
 ple involved in this objection. In these ca.sea it 
 j has been held, as I think correctly, under chap- 
 ter 134, section 174, of the Revised .Statutes, 
 third series, that replevin will lie for goods and 
 chattels that have been in the possession of the 
 plaintiff and wrongfully taken, or when lawfully 
 taken or received have been unlawfully with- 
 held. 
 
 Cf'rant v. Robertson, 2 X. ,S. D., 247. 
 
 3rd R. 8., c. 134, s. 197- 
 
 " IVheti the Judge shall refuse to grant a rule 
 nisi for a neic trial, in a cause tried before him, 
 and the counsel for the party shall, on or before- 
 the last day of the term, or the sittings after term, 
 in which the cause has been tried, jile sufficient 
 bail in such reasonable amount as the Judge shall 
 direct, to respond the judgment to be finally given 
 in the cause, no judgment shall be enteral up, but 
 a lule 7iisi specifying the objections s'all pass, 
 under which the party shall be at liberty to enter the 
 case, and it shall stand for argument in the same 
 manner as if the rule 7iisi had been granted by 
 the Judge presiding at the trial." 
 
 In taking out rules to set aside verdicts, the 
 bail may be filed without notice, but must jus- 
 tify when they enter into the recognizance ; the 
 justification may be oral before the Judge or 
 Prothonotary, and when made should be noted 
 in the recognizance. The justification may be 
 dispensed with by the opposite party, and the' 
 s'lbstitution of one bail for two may be in like 
 manner assented to, and no notice of such bail 
 having been given shall be reijuired. 
 
 .'^ntficient bail means substantial bail, either 
 accepted by the opposite party or prepared to 
 justify. 
 
 Bockwell V. Boss, 1 X. S. D., 183. 
 
 This section is confined in its operation to 
 
 private paities, and does not extend to the 
 
 Crown. 
 
 Queen v. Ryerson, 2 X. 8. D., 276. 
 
 3rd R. S., C. 134, ss. 252, 257 & 258- 
 
 See 3rd R. 8., C. 128, 8. 33. 
 
 3rd R. S., c. 134, 8. 270-5th R. 8., c. 104» 
 
 O. XIX., R. 30— 
 " In case of any action founded upon a bill of 
 
1471 
 
 STATUTES, NOVA SCOTIA. 
 
 1472 
 
 excfmvf/e or other nei/utinhle imfrument, it shall 
 he lawful for the Cjurt or a Judije to order that the 
 loss of such instrument shall not he set up— pro- 
 vided an indemnity is ijivvn, to the satisfaction of 
 the Court or Judtje, at/ainst the claims of any 
 other person upon such neijotiahle instrument." 
 
 Held, tliat the indemnity need not be tiled at 
 any fixed time before tlie trial. The loss in 
 some cases might occur just before the trial, so 
 it might not be discovered till after the com- 
 mencement, and no wrong could be done to the 
 defendant if he had sutiicient security. In this 
 case as the note had never been indorsed, and I 
 without indorsement could never rise in judg- i 
 ment against the defendant, semhk, the plaintitT: 
 could have recovered although no indemnity 
 had been given. 
 
 Smith V. McEachrtn, 1 N. H. I)., '299. 
 
 3rd R. 8., c. 134, part *i, ss. 1 & 2- 
 
 (S. 1. 1'rocee.lings against ^ ^^^-^^^f ^^^^^ ,, appoint Commissioners for the 
 resident out of the Provn.ee. S. 2. roeeed- : ^^^.^^ ^^^ ^^^^^^^^^^^^ ^^^,^^^^,^_ ,^^^^ ,^y ^^ ,,,\,,,,,u.^.r 
 ingsagamst foreigners resident out of the l"'"" | ^^^,^j^,,^ j,,.^^.^i„,, i3 „„,y „,,ae in term., for 
 
 '^■'"'^'^^ , w .. J applications by persons imprisoned under pro- 
 
 These provisions do not extend to suits against n -*.... ^. . ,, 
 
 corporations. 
 
 taken under commission ''. Or sliall the filing of 
 the answer purporting to be under the luiml- 
 writing of the deponent and tlie officer be hc- 
 counted enougli, prima farit. My own opiuiuii 
 inclines to this latter view, and I cannot regani 
 the case of F/tal v. Pe.rrini, h. R. 3 tj. 15., iVJii, 
 as inconsistent with it, 
 
 I'Vindsor Marine Ins. Co. v. Ladd, 
 
 '2N.S. D,,4!i;i. 
 
 3ld K. S., c. 133, s. 28 - Cf. 3th B. S., c. 
 
 107, a. 3— 
 
 ( Documents admibsible in evidence in Engliunl, 
 etc., without proof of signature, etc., aduiissililf 
 here) — 
 
 Order of discharge in bankruptcy in Eiighuul 
 held 2»rima facie evidence of the bankruptcy. 
 
 Mills v. Smith,2 0k\.,»2^. 
 
 3rd R. S., c. 137, s, 1- 
 
 liy this section the (lovernor in Council was 
 
 Btlloul V. Sydney it- Louisbunj H'y. Co., 
 
 2N. S. D.,73. 
 
 3rd R. S., c. 135, s. 11 ■ 14- 
 
 Pir Young, C. J.— I have said that the same 
 principle extends to the affidavits filed in a cause, 
 and the answers put in under oath to interroga- 
 tories. The latter, however, stand on a differ- 
 rent footing, and depend on the true construc- 
 tion of our own Statute, chapter 135, sections 11 
 to 14, and of the Act of 1867, chapter 19, section 
 2. These difler considerably from the English 
 C. L. P. Act, 1856, on which they are founded. 
 Section 57 of that Act is the origin of our section 
 11 in the Act of 1867, as may be readily seen on 
 comparing the two. One remarkable feature in 
 ours is, that the answer may be sworn to before a 
 Justice of the Peace, as has been done, I perceive, 
 with one of the answers in this case. Section 52 
 of the English Act is not in ours ; section 53 is 
 nearly the same as our section 12 ; 54 bears some 
 analogy to our section 14, but this and section 
 13 may be considered as peculiar to our practice. 
 The former declares that the answers to the in- 
 terrogatories in the oral examination, under sec. 
 12, shall be held to be taken absolutely (there 
 being no such phrase in the English Act), and 
 unlesi otherwise specially 
 
 cess issuing out of the Supreme Courts, the 
 County Courts not being then in existence. 
 Since these Courts were established no Act had 
 passed in relation to persons imprisoned umler 
 them, and the Act establishing such Courts 
 is silent on the subject. Chapter 8 of Acts of 
 1878 provided for relief of deljtors imprisoned 
 on process out of the County Courts. 
 //ild, intra vires the Local Legislature. 
 
 Johnston v. Poyntz et a/., 2 R. & (i., 1G.3. 
 
 3rd R. S., c. 140- 
 
 Plaintififs, as trustees of a school section, had 
 occupied since 1853 a lot of land reserved for 
 them by S. 0., who, however, had omitted to 
 give them a deed. In 1871 defendant olnaiued 
 a deed from the heirs of S. 0., knocked down 
 the fence round the lot and ploughed the laud. 
 Plaintiffs proceeded against him for forcible en- 
 try and detainer, but the Judge presiding at the 
 trial ruled that in the absence of evidence of 
 violence and terror the complaint could not 1)« 
 sustained. 
 
 Held, that his ruling was correct. 
 
 lirundige et al. v. Thompson, 3 N. S. D., 359. 
 
 3rd R. 8., C. 141, s. 8- 
 
 By this section a subsecjuent attacher may in 
 a cause in the Court dispute the validity of the 
 previcus attachment on the ground tiiat tlie 
 
 * _ 1 1 _..i 1 1... 
 
 not de bene e-sse, 
 
 ordered ; and section 14 declares that they may j,-- - --- - , 
 
 be used. Is it necessary, then, efore using i sum was not due, or not payable, when llie 
 them to prove the signature of the deponent, | action was commenced. Defendant's property 
 which is not necessary in case of a deposition j was attached by G. & K. under the above Ait 
 
1473 
 
 STATUTES, NOVA SCOTIA. 
 
 1474 
 
 and subsequently, by plaintiff, under the Do- 
 minion A:!t. G. & K. applied to liave plain- 
 tiff's attachment set aside on certain technical 
 grounds. 
 
 i%W,that G. & K. could not attack plaintiff's 
 proceedings under s. 8. 
 
 Jennett v. Petitmaitre, 2 N. S. D., 524. 
 
 3rd K. 8., c. 145-Cf. 5tb R. 8., c. 125- 
 
 Ptr Wilkins, J.— In 1768, Nova Scotia first 
 legislated in the matter of enabling the sale of 
 goods distrained for rent. It is certain that 
 tills was done in view of the Imperial Acts then 
 In force in England, viz., William & Mary, Sess. 
 1, c. 5 ; 8 Anne, c. 14 ; and 11 Geo. 2, c. 19. 
 
 We find that the first four sectiops of our old 
 Stcitutes, 8 Geo. 3, c. 4, are transcripts of the 
 Acts of William & Mary ; the 5tli, 6th, 7th, 
 8lh, 9th, and 10th sections are taken from 
 8 of Anne, c. 14, as is also substantially 
 the 13th section, whereas the 11th and 12th 
 sections are not foimd in either of those 
 two last mentioned English Statutes, but are 
 copied from the 8th and 9th sections of 11 
 George 2, c. 19. It is observable, also, that 
 wliile the Legislature deemed it expedient to 
 enact in terms in section 12 of our Act, the 
 first part of section 9 of the Act of George 2, 
 which requires that the tenant shall have notice 
 of the place where the distress is deposited, it 
 omitted to enact the remaining part of that sec- 
 tion, although it is very important and entirely 
 applicable to our colonial condition, but enacted 
 no other of its provisions. It must, therefore, 
 oe taken to have said that the remaining sec- 
 tions, including of course those that toned down 
 the severity of the former law, which made 
 trespassers ah initio those who, after legally 
 making a distress for rent, were guilty of any 
 subsequent irregularity in relation to it, were 
 inapplicable to the circumstances and condition 
 of this colony, and therefore not proper to be in 
 force in it. This necessarily implied view of 
 legislative opinion has been thrice manifested in 
 this Province, viz., first when the old Statute 
 of 1768 was passed, and secondly and thirdly, 
 when the two consecutive series of the Revised 
 Statutes were enacted. Our present law, c. 
 U5, Revised Statutes, 3rd series, contains no 
 provision that was not in the Statute of 1768. 
 
 Such, then, being the Statute law which 
 governs the case before us, it follows that this 
 defendant, having entered on the premises of 
 the plaintiff to distrain for rent, confessedly due 
 though it was, and having sold the goods of 
 plaintiff distrained on without having given the 
 notice -equired by the Statute, was a trespasser 
 49 
 
 in his first act and in every subsequent act of 
 his proceedings. 
 
 Cornelim v. Burton, 3 N. S. D., 337. 
 
 3rd R. 8., c. 146, 8. 11 -Cf. Sth R. 8., 
 
 c. 115, s. 11- 
 
 " In case of any such arbitration or reference 
 as aforesaid, tAe Court or a Judye shall have 
 power at any time, and from time to time, to remit 
 the matters refened, or any or either of them, to 
 the re-consideration and re-determination of the 
 said arbitrator or referee, tipon such terms, as to 
 costs and othenvise, as to the said Court or Judye 
 may seem proper." 
 
 Held, to extend to references by consent of 
 parties as well as to compulsory references. 
 
 Annis et al. v. Cook et al., 2 Old., 163. 
 
 3rd R. 8., c. 147, s. 23- 
 
 " Two Justices of the Peace may hear and 
 determine in a summary way, all complain's for 
 common assaults and batteries, and upon conviction 
 the offender shall forfeit a sum not exceediny eiyht 
 dollars, to be paid over, when recovered, to the 
 County Treasurer, and the Justices shall forthicith 
 fie the receipt of the County Treasurer with the 
 Clerk of the Peace." 
 
 Plaintiff instituted an action under section 23, 
 c. 147, 3rd Revised Statutes, before two Jus- 
 tices of the Peace against defendant for an 
 assault, and the Justices on hearing the evidence, 
 dismissed his complaint, either deeming the 
 offer.ce not proved, or so trifling as not to merit 
 punishment. Plaintiff thereupon appealed to 
 the Supreme Court, and the Judge presiding 
 at Annapolis dismissed his appeal, but gave him 
 a rule iiisi to bring the case for argument before 
 the full Court. 
 
 Ifeld, that in a case of this nature, plaintiff 
 was not entitled to appeal from the decision of 
 the Justices of the Peace. 
 
 Chedey v. Grasnie, 1 N. S. D., 191. 
 
 3rd R. 8., c. 147, s. 25 and 28- 
 
 S. 25. " If the Justices upon the heariny shall 
 deem the offence not proved, or so tri/liny as not 
 to merit punishment, they may dismiss the com- 
 plaint, and if required shall yive the party 
 acquitted a certificate accordingly." 
 
 S. 28. " If any person shall have obtained a 
 certificate as above, or, having been convicted, shall 
 have paid the tvhole atnount adjudyed, or shall have 
 suffered the punishment awarded for non-payment 
 thereof, he shall be thereby acquitted of all crim- 
 inal proceedings for the same offence." 
 
 Held, that there was no appeal in a case which 
 the Justices of the Peace had pronounced too 
 insignificant to occupy their attention and to 
 
1475 
 
 STATUTES, NOVA SCOTIA. 
 
 1476 
 
 which the production of the certificate of the 
 Justices wouhl have been a complete answer. 
 
 Chedty v. Orassie, 1 N. S. D., 191. 
 
 3rd R. S., c. 148, s. 1— 
 
 (Provides bail to be filed before issuing a writ 
 of certiorari', indorsement required on the 
 writ) — 
 
 Held, that no certiorari should issue in a civil 
 suit, without an affidavit showing sufficient 
 grounds in the estimation of the Judge or Com- 
 missioner who grants it, and which may be 
 controverted on other affidavits and motion to set 
 the certiorari aside. 
 
 Crawley v. Anderson, 1 N. S. D., 385. 
 
 3rd R. S., c. 169, ss. 12, 13 and 22- 
 
 S. 12. " Whosoever shall maliciously kill any 
 cattle, or cause any harm to any cattle, with intent 
 to kill such cattle, or retuler the same useless to 
 the owner, either permanently, or for a time, shall 
 be committed to jail for a term not exceeding one 
 year, or fined in a sum not exceeding Jorty 
 dollars.'" 
 
 S. 13. '^ Whosoever shall wantonly and cruelly 
 hem, abuse, or ill-treat any cattle, shallbe punished 
 byjine or imprisonmeixt in jail, at the discretion of 
 the Court:' 
 
 S. 2*2. " Whosoever shall maliciously damage 
 or destroy any real or personal property, either of 
 a public or private nature, for xuhich no remedy 
 or punishment is hereinbefore provided, shall be 
 committed to jail for a term not exceeding two 
 years, or fined in a sum not exceeding eighty 
 dollars" 
 
 Defendant was convicted of having, in a secret 
 and clandestine manner, cut off the hair from 
 the manes and tails of two horses, the property 
 of one William Ballam. 
 
 Held, that the offence did not come within 
 
 sees. 12 & 13, but was covered by sec. 22, chap. 
 
 169, R. S, 3rd series, under which defendant 
 
 was indicted. 
 
 Also, that the offence having been committed 
 
 wrongfully and intentionally, without just cause 
 
 or excuse, and with full knowledge as to the 
 
 ownership of the property, malice might be 
 
 fairly inferred. 
 
 Queen v. Smith, 1 N. S. D., 29. 
 
 3rd R. S., c. 171, s. 71— 
 
 "Every objection to any indictment for any 
 formal defect apparent on the face thereof, shall 
 be taken by demurrer or motion to quash such 
 indictment, before the jury shall be sworn, and not 
 afterwards; and every Court before which any 
 such olgectima shall be taken, for any former 
 defect, may, if it 6e thought necessary, cause the 
 
 indictment to be forthwith amended in such par- 
 ticular, by some officer of the Court or other 
 person, and. thereupon the trud shall proceed as 
 if no such defect had appeared." 
 
 An application to the Court on the part of n 
 defendant to (juash an indictment will be refused 
 unless the defect is clear and obvious. Tlio de- 
 fendant, by pleading to the indictment, will 
 exclude himself from having his application en- 
 tertained. 
 
 Where the defendant has had an opportiuiity 
 to move to quash the indictment when the cause 
 was called for trial, and before the jury was 
 sworn, but has neglected to avail himself of it, 
 he is put in no better position, as regards iiis 
 application, by the jury failing to agree on a 
 verdict and being discharged in consequence. 
 
 Queen v. Wallace, 1 N. S. D., 382. 
 
 A motion in arrest of judgment may be iniule 
 for any substantial defect which appears upon 
 the face of the record. If the objection be 
 valid, the whole proceedings will be set aside, 
 but the party may be indicted again. 
 
 An indictment is clearly bad where two 
 offences are charged in a single count. 
 
 Where the names of third persons cannot be 
 ascertained, it is sufficient to state, "a certain 
 person or persons to the jurors aforesaid un- 
 
 Queen v. Blackie, 1 N. S. D., 383. 
 
 3rd R. S., c. 171, 88. 99 and 100-Cf. R. S. 
 
 C, c. 174, ss. 259 & 260— 
 
 S. 99. " When a person has been convicted of 
 criminal treason, felony, or misdemeanor, befi :e 
 any Court of Oyer and Terminer, or Jail Delivery, 
 the Judge before whom the case teas tried may,m 
 his discretion, reserve any question of law which 
 arose on the trial for the consideration of the Jus- 
 tices of the Supreme Court at Halifax, ami there- 
 upon may respite execution of the judgment on 
 such conviction, or postpone the judgment until 
 such question has been considered and decided ; and 
 in either case the Court at which the trial took 
 place shall in its discretion, commit the persons 
 convicted to prison, or take a recognizance of baU 
 with one or tioo sufficient surely or sureties in 
 such sutns as the Court thinks /U, conditioned for 
 his appearance at such time as the Court directs, 
 to receive judgment, or to render himself m 
 execution, as the case may be." 
 
 S. 100. " The Judge shall thereupon state, in a 
 case to be signed by him, the question or question! 
 of law so reserved, with the special drcutnstancet 
 upon lohich the same arose ; and such case shall 
 be transmitted by the Judge to the Prothmotary 
 of the Supreme Court at Halifax, an or before 
 
1477 
 
 STATUTES, NOVA SCOTIA. 
 
 thejirst dny of th$ term of such Supreme Court, 
 at Halifax, next after the Term when luvh trial 
 was hml" 
 
 Per Young, C. J.— Looking to the general 
 scope of the earlier cases, I tan find no assertion 
 of a right, nor any inclination on the part of the 
 Judges, to control or interfere with the verdict 
 of a jury, where there was conflicting or circum- 
 stantial evidence, and the cise had been legally 
 tried and properly and fairly submitted to them. 
 The Judges seem to me to have recognized the 
 well known boundary line between ijuestions of 
 fact and questions of law, and to have interposed 
 only when the law had not been satisfied or had 
 been misunderstood. 
 
 Qiieeii V. Downey et al., 2 Old., 93. 
 
 1478 
 
 4th R. 8., C. 9, 8. 6I-Cf. 5 R. S., c. 7, 8. 65— 
 
 (Lessee to receive thirty days' notice of in- 
 tended forfeiture of lease) — 
 
 Held, that, where the notice was addressed to 
 the .nortgagee and not to the lessee, the Com- 
 missioner of Mines had no jurisdiction to forfeit. 
 Qme)i V. Ehe, 4 R. & G., 130. 
 
 96 
 
 4tli R. 8., c. 9, 88. 86, 87, 00, 91, 93, and 
 
 See, also, STATUTES, IMPERUl, 
 11 & 12 Vict., C. 
 
 78. 
 
 3rd R. S., c. 171, 8. 101- 
 
 When after verdict of guilty i;i a prosecution 
 for bigamy, no judgment had been given at the 
 trial, the Court having decided that the prisoner 
 had been rightly convicted, ordered that judg- 
 ment should be given on the conviction at the 
 next term of the Supreme Court at Amherst, 
 where the prisoner had been tried, he in the 
 meanwhile to be detained in custody. 
 
 Qtieen v. Alla7i, 2 Old., 373 ; 
 1 N. S. D., 5. 
 
 Rev. Stats., Ith series, came into force 
 Mar Stta, 1874. 
 
 4th R. S., c. 1, s. 7-Cf. 5th R. S., c. 1, 
 
 s. 7 (0- 
 
 " All wordi purporting to (live a joint authority 
 to three or more persons, .shall be construed as 
 ijivimj authority to a majority of such persons. 
 
 Per DesBarres, J., delivering the judgment of 
 the Court, 
 
 I am decidedly of opinion that this latter sec- 
 tion was never intended to apply or control, and 
 it does not apply to and cannot control the 
 Judges in the discharge of their judicial duties. 
 It was, I take it, intended to apply to cases 
 where three or more persons were jointly em- 
 powered to perform some specific Act. 
 
 Qu^en V. Quinn, 1 R. & G., 139. 
 
 4th R. S., c. 9-Cf. 5th R. S., c. 7- 
 
 (Of Mines and Minerals)— 
 A license to search for minerals under this 
 chapter is assignable. 
 
 In r", Milner's Appeal, 2 R. & C, 522. 
 
 S. 86: "The Commissioner of M tries may, 
 upon application, yrant licenses to search, to he in 
 force for one year from the date of application 
 therefor, to enter upon any lands in this Province* 
 not already under license or lease for mining pur- 
 poses," ^-c. 
 
 S. 91 : " When a license to search for mines 
 other than gold has been granted, it shall be lawful 
 for the Commissioner of Mines to grant other 
 licenses to search over the same area ; provided, 
 that he shall grant no more licenses than there ai e 
 areas, of one square mile each, contained within 
 the area so first licensed ; and after thejirst licen- 
 see has chosen his one square mile, the others shall 
 select theirs in the order of their licenses— provi- 
 ded, that the right of search of the second licensee 
 and his license shall commence immediately after 
 the expiration of the license or renewed license of 
 the first licensee, or on the selection of his square 
 mile by the first licensee ; and the third license 
 shall commence at, the end of the right of search 
 of the second, or his selection of his square mile, 
 as aforesaid, and so on until the whole area is dis- 
 posed of. " 
 
 Per Ritchie, E. J.— The S6th sec. of the 9th 
 chapter of the Revised Statutes, " Of Mines and 
 Minerals, "authorized the Commispio-if^rof Mines 
 to grant licenses to search to be in force one year 
 from date of application, to enter upon land not 
 already under license or lease, and to dig and 
 explore for minerals other than gold. By the 
 87th, no such application shall be valid, unless 
 accompanied by a payment of §20, and the li- 
 cense to search may cover any single tract of 
 ground not exceeding five square miles in extent, 
 but not more than two and one-half miles in 
 length. 
 
 Sec. 90 allows the license to be renewed 
 under special circumstances, subject to approval 
 by the Governor in Council. The 91st section 
 provides that when a license to search has 
 been granted, the Commissioner of Mines may 
 grant other licenses to search over the same 
 area, provided that he shall grant no more 
 licenses than there are areas of one square mile 
 each contained within the area so first licensed ; 
 and after the first licensee has chosen his square 
 mile the others shall select theirs in the order 
 
1479 
 
 STATUTES, NOVA SCOTIA. 
 
 1480 
 
 of their licenses, provided that the right of searcli 
 of the second licensee and his license shall 
 comincnco immediately after the expiration of 
 the license, or renewed license of the tirst 
 licensee, and so on, till each in order has sel- 
 ected liis square mile, and the whole area is 
 disposed of. 
 
 Tiie 93rd section enacts that the holder of a 
 license to search may, at any time before the 
 expiration thereof, select from the land covered 
 by such license, an ai'ea of one sfjuare mile, for 
 the purpose of working the mines and minerals 
 therein, and may make an application in writ- 
 ing to the Commissioner of Mines to work the 
 same, whicli shall be accompanied by a payment 
 of 850 ; and the 94th section provides that on 
 such application and payment, tiio Commissioner 
 of Mines shall cause the portion so selected to 
 be surveyed and laid off, &c. 
 
 The 9ttth section enacts that upon complying 
 with the reijuirements of the chapter, the appli- 
 cant shall be entitled to a license to occupy and 
 work the one square mile applied for. 
 
 A license to search for minerals, other than 
 gold, was granted to the relators under section 86 
 of chapter 9, 4th R. S., to expire 21 st May, 1874. 
 r.evious to its expiration, four other licenses to 
 search over the same area, were granted to the 
 relators, which were to expire respectively, '2'2nd 
 May, 1875 ; 2.3rd May, 1876 ; 26th May, 1877, 
 and 27th May, 1878 ; the area containing only 
 four and a quarter square miles. On the 28th 
 of May, 1877, defendants having a license to 
 search over an area overlying in part tiie area of 
 the relators, applied for a license, which was 
 afterwards granted, to work one square mile 
 partially overlying and including within its 
 boundaries the area under license to search to 
 the relators. An order nixi having been taken 
 to restrain defendants from interfering. 
 
 Held, that over the area of four and a quarter 
 miles first above referred to, not more than four 
 valid licenses to search could be granted under 
 R. S., cap. 9, sec. 91, that the relators' fifth 
 license to search, which was to expire May 
 27th, 1878, was invalid, and that on the 28th of 
 May, 1877, there was no obstacle to the defend- 
 ants obtaining the license to v/ork granted to 
 them. 
 
 Obiter Dictum, that it was no objection to the 
 license to work, that the license to search on 
 which the license to work was obtained, was 
 taken out in the name of one only of the de- 
 fendants, Fraser, as it appeared that they were 
 all interested in the license to search and it was 
 taken out for their joint benefit. There is no 
 objection to the course which has been pursued. 
 Attorney-OenercU v. Fraser et al, 
 
 R. E. D., 275. 
 
 Oil apixat from the Judije in Eqtiity to the 
 Court in banco, 
 
 Held, that the practice of the office was wrong 
 in s'oiiting more than one license to searcli, 
 with right of renewal, to the same party over 
 the same hrea, that on this ground the license 
 to search rtlied on by relators was invalid, and 
 that without respect to defendancs' title, tiiu 
 injunction must be refused, but without costs, 
 as l)oth parties had acted under an erroneous 
 view of the law. 
 
 Attorney -General v. Fraier, 3 R. & C, 331. 
 
 4th R. S., c. I'i-Cr. 5th R. S., C. 9- 
 
 (Of trespasses to Crown property) — 
 The right of the Crown, in respect of tres- 
 passes to Crown property, are not limited ))y 
 
 this chapter. 
 
 See CROWJT, 3. 
 
 4th R. S., c. 21, 88. 6 and 54- 
 
 S. 6. (Amercements for certain purposes, 
 when Crand Jury neglects) — 
 
 S. 54. (Amercements by Supreme Court on 
 neglect of Sessions) — 
 
 These sections do not empower the Supreme 
 Court to amerce a County for charges incurred 
 in calling out the active militia under the Do- 
 minion Act of 1873, c. 46, to quell a riot. 
 
 In re Amercement of Cape Breton County, 
 
 2 R. & C, 410. 
 
 4th R. S. c. 21, 8. 16 — (Exemptions ffom 
 
 taxation)— 
 
 Held, that this section applies only to County 
 assessment. 
 
 Brown v. Windsor d: Annapolin R'y Co., 
 
 2 R. & G., 430. 
 
 4th R. 8., c. 21, 8. 17- 
 
 " One-fourth and no more of all local and 
 direct taxes shall be levied and assessed by an 
 equal rate as a poll tax on all male jmsons 
 living xoithin the district, of the age of twenty- 
 one years, and not being paupers, and the other 
 three-fourths shall be levied and assessed «j)oh 
 the whole taxable real and personal property 
 of the locality." 
 
 Hdd, that a vessel registered in the port of 
 Halifax, and owned by a trader resident at 
 Isaac's Harbor, and not at the time of the as- 
 sessment in the District of Isaac's Harbor, or 
 the County of Guysboro', was not assessable in 
 the District of Isaac's Harbor for county rates. 
 
 James, J., dissenting. 
 
 In re Effie Sweet, 3 R. & G., 380; 
 3C.L.T.,44. 
 
1481 
 
 STATUTES, NOVA SCOTIA. 
 
 1482 
 
 4tb K. 8., c. 21, 8. 61- 
 
 " Any person oijifrieved by the asBeiiment, SfC, 
 may appeal to the tuxt fiesiioni, Sfc.,and the Court 
 of Appeal, without prejudice to the whole or any 
 part of the assetiment, may either let aside or 
 lower the rate on such person or finally determine 
 the appeal, as they shall see fit." 
 
 1876, c. 29, enacted: " The following clause is 
 added at the end of the si.ity-Jirst section of the 
 chapter hereby amended, that is to say: Any party 
 af/yrieved by the decision of the general or special 
 ■Sessions, may appeal therefrom to the neat term 
 of the County or Su/n-eme Court for the County," 
 etc, 
 
 1879, c. 1,8. 79, enacted : " The powers and 
 authorities which in chapters 15, 21, etc., etc., of 
 the Jieiised Statutes, fourth series, , , . are 
 ijiven to Grand Juries, Justices in Session, genera/ 
 or special, etc., for the carrying out of the pro- 
 linions of those chapters are given to the Muni- 
 cipal Councils," etc. 
 
 I/eld, that the power ot hearing and deciding 
 appeals from asaessmenta waa transferred and 
 legally veated in the Municipal Council ; but 
 subject to the limitation and appeal provided by 
 c. 29 of 1876. 
 
 In re Assessment of Crowe, 3 R. ft G., .301. 
 
 4tb R. S., C. 22, 8. 7-Cf. 5tb R. S., C. 20, 
 
 s. 7— 
 
 " The Supreme Court in the different Counties 
 thall from time to time make and publish rides 
 and ordtrsfor Jiximj and ascertaining the limits 
 and boundaries of jail yards, and for directing 
 and controtlinij the conduct of Sheriffs, Jailers and 
 officers having the charge or custody of prisoners, 
 and for their safe keeping and protection." 
 
 The defendant having been arrested on an 
 execution, obtained the privilege of jail limits, 
 as fixed by an order of Court under 4th R. S., 
 c. 22, 8. 7, and gave a bond with a surety to the 
 Siieriff, who assigned it to plaintiff. 
 
 Held, that the bond could not be transferred 
 by indorsement as a bail-bond so as to vest a 
 right of action in the transferee, and that four- 
 teen days' notice of action must be given by the 
 assignee. 
 
 Quaere, as to legality of the bond. 
 
 Roue V. Prendergast, 1 R. ft G., ,385. 
 
 4th R. S., C. 28, 8. 22- Cr. 5th R. 8., c. 24, 
 
 s. 22— 
 
 "JVb person shall be entitled to recover any 
 (harye in any Court of law for any medical or 
 turgical advice, or for attendance, or for the per- 
 fomtance of any operation, or for any medicine 
 which he shall have both prescribed and supplied, 
 unless he shall prove upon the trial that he is 
 registered under this chapter." 
 
 The plaintiff, a physician practising in New- 
 foundland, performed medical services for the 
 defendant, also residing there. 
 
 Held, that the plaintiff could recover iu this 
 Court, notwithstanding the fact that ho was 
 not registered under 4th R. S. , c. 28, s. '2^2. 
 
 IVilmot V. Shaw, 2 R. & G., 343; 
 2C. L. T.,90. 
 
 4th R. 8., €. "0-(Board8 of Health, etc.)- 
 See BOARD OF HEALTH. 
 
 4th R. 8., c. 32-(Or Public In8truction)- 
 A>e 36 Vict. (1813), C. 12- 
 8CH00L LAW. 
 
 4th R. 8., c. 32, 8. 20- 
 
 " Inhere any section at the time fixed for the 
 annual meeting fails to elect three trustees, or to 
 Jilt the vacancy occurring in the trusteeship, 
 or vacancies from other caiises, the trustee 
 or trustees shall lie appointed upon the written 
 requisition of seven ratepayers in the sectioti, by 
 the Commisioners of Schools for the district in 
 which the school house is situate, or in which a 
 majority of the ratepayers of the section reside, 
 and where any trustee or trustees have been elected 
 and refuse to act, or shall neglect the performance 
 of duly for twenty days after such eler'ion, the 
 Board of Commissioners shcdl appoint trustees or 
 a trustee in place of the person or persons so 
 refusing to act," 
 
 Held, that, wliere no vacancy had occurred 
 and no proof was produced of any refusal or 
 neglect by and on the part of the trustees, to act 
 or perform their duties as such, their dismissal 
 by the Board of Commissioners was tdtra vires. 
 Trustees School Section 16 v. Cameron, 
 
 2 R. & C, 328. 
 
 4th R. 8., c. 32, 88. 34 and 37— 
 
 See SCHOOL LAW, 14. 
 
 4th R. S., C. 32, 8. 64-Cr. 5th R. 8., C. 29, 
 
 8.54- 
 
 ^' Property held by executors, administrators, 
 trustees, etc., shall he liable to be assessed, etc , in 
 the section in which the original oioner of such 
 property resides or last resided." 
 
 See SCHOOL LAW, 8. 
 
 4th R. S., C. 32, 8. 76, 8Ub-8ec. 1— 
 
 " It shall be the duty of the inspector to act as 
 clerk of each Board of School Commissioners 
 ^cithin his county, and to draw in November 
 and May in each year from the treasury, upon 
 the order of the chairman, the Provincial money 
 
1483 
 
 STATUTES. NOVA SCOTIA. 
 
 14S4 
 
 n« provided by this chapter, and promptly de- 
 liver to licensed t>'<irhers personally, nr upon 
 their written orders, their Provineiid allow- 
 iinees and drafts upon the county or district 
 treasurer." 
 
 Held, tliat inspectors could not pay those 
 allowances on a garinshee cider without contra- 
 vening this section of the Act. 
 
 Fraser v. Mc Arthur, 3 R. & (J., 498. 
 
 4tb R. S., c. 33, 88. 8, 9, 10, and 18- 
 
 Cf. 6th R. S., c. 35, 88. 8, 9, 10, and 18— 
 
 (Proceedings in regard to removal of paupers 
 and liability for expenses incurred in connection 
 therewith) — 
 
 A pauper having a settlement in defendants' 
 district, was seized with fever in plaintiffs' dis- 
 trict. Plaintiffs gave her relief, gave notice to 
 defendants, and had the pauper removed as 
 soon as it could properly l)e done. They then 
 brought action for the expenditure incurred 
 previous to the removal. 
 
 Held, that the Statute was not sufficiently 
 clear and unambiguous to impose on defendants 
 the expense of sustaining the pauper previous 
 to I'cmoval. 
 
 Overseem of Poor, Jiridi/eirater, v. 
 
 Overneer.i of Poor, Port Medway, 
 4R. &(;., 88. 
 
 4th R. S., C. 35, 8. 1 -Cr. 5th R. S., C. 37, 
 
 8. 1 — 
 
 " If any woman shall hecome prefjnant with a 
 buKlard child likely to become ehanjeable to any 
 Toirnnhip," il-c. 
 
 Defendant objected to an order of filiation 
 made at the instance of the Overseers of the 
 Poor for Maccan, on the ground that, although 
 the mother was resident at Maccan when tiie j 
 child was born, the legal settlement of the | 
 mother was the Township of Parrsboro'. 
 
 Held, that the father was I'able to the plain- 1 
 
 tiff Township, the words ' ■ likely to become 
 
 chargeatjle to any Township " being equivalent j 
 
 to " likely to need relief from any Township." 
 
 Overseers of Poor of Maccan v. Davidson, 
 
 4 R. & G., 58. 
 
 4thR. S., c. 36, s. 2and4- 
 S. 2. Provides for the appointment of guar- 
 dians for lunatics '* with the poioers and duties " 
 in said chapter thereinafter specified. 
 
 S. 4. Enacts that the guardian "shall also 
 settle all accounts of the ward, and shall sue for, 
 recover and receive all debts due to him." etc. 
 
 Held, on appeal that the right of the guardian 
 of a lunatic to bring au action in his own name 
 
 for the lunatic's chnses in action, is doubtful, 
 notwithstanding the language of the Statute, 
 and that the proceedings in an action brought 
 in his own name for a debt duo the lunatic shoulil 
 be amended by substituting the lunatic us 
 plaintiff. 
 
 Searran v. Porter,', 4 R. & G., 292 and 49.'). 
 
 4th R. S., c. 40, 8. 4-5th R. S., r. 42, 8. 4 - 
 
 (Powers of Commissioners of Sewers and of 
 Dyked and Marsh Lands, to carry on works ; 
 new works, how begun) — 
 
 Per McDonald, C. J.— The intention of the 
 Legislature in this Act would appear to be to 
 empower the Commissioners of Sewers to act 
 in making ordinary repairs, or in any sudiluii 
 emergency, without consultation with or tlie 
 consent of the proprietors, but that these pro- 
 prietors should not be taxed for the construi;- 
 tion of any new work not immediately esHcntial 
 to the preservation or interests of common pro- 
 perty, without their consent to such work being 
 first obtained. 
 
 Bumham v. Davison, 5 R. & G., 388. 
 
 On appeal to the Supreme Court of Canada, 
 The al)ove expression was adopted and ap- 
 proved. 
 
 Cas. Dig., 516. 
 
 4th R. S., c. 40, s. 27-5th R. S., c. 42, 
 
 8.27— 
 
 (Outer dykes protecting lands enclosed Ijy 
 inner dykes ; how kept in repair) — 
 
 See ASSESSMENT, IIL, 4. 
 4th R. S., C. 47, s. 13 -Cf. 5th R. S., c. 48, 
 
 8.13 — 
 
 " Perwnn, in dririnij upon the hir/htuay, xhall 
 leave the centre of the road on their riijht hand." 
 
 The strict enforcement of this would render 
 impossible the use of three-fourths of the higli- 
 ways of this Province. The roads are narrow, 
 and the travelled track in the centre, simply 
 because there is not room for two tracks. While, 
 therefore, a party may be liable to the penalty 
 imposed by the Statute for disobedience to its 
 requirements, it would be a strict application of 
 the principles of law to impute such a user of 
 the road as circumstances make necessary and 
 use familiar, as negligence which would make a, 
 party prima facie liable for the results of a col- 
 lision, in the absence of evidence of actual neg- 
 ligence. 
 
 liamie v. Walker, 6 R. & G., 175. 
 
 4th R. S., c. 49, 8. 16— 
 
 Providing for the retirement of Street Com- 
 missioners by rotation, appli 3S to the appointment 
 
1485 
 
 STATUTES, NOVA SCOTIA. 
 
 1486 
 
 of CommitsionerB by the Municipal Council 
 mufatiit tnutaudin. 
 
 McDonald, C J., dinHentinij. 
 
 Letteney v. J)iUon, 6 R. & O., 146. 
 
 Ith B. S., c. 53, s. 13-Cr. Sth R. 8, C. 78, 
 
 8. 13 - 
 
 " Xu memher of any corporation shall he re- 
 liereil from individual liability for its debts or 
 ohliiintions; but each member thereof shall be 
 liable as a partner to the same eirtent as if no 
 corporation existed; and in case any execution 
 isnucd on any judgment against the corporation 
 shall be returned nnsatis\,fied, the individual 
 real and personal estate of every member of the 
 corporation shall be liable to respond such 
 judi/ment, xtnder execution issued thereon in 
 the same manner as if the same vere a priiute 
 di'M due by such member, nnless the special Act 
 creating the corporation shall exempt its mem- 
 bers fro7n such liability ; and any member who 
 shall be so compelled to pay any moneys on ac- 
 count of the debts of the corporation shall be 
 entitled to credit therefor in the books of the 
 corporation" 
 
 An application having been made for leave to 
 issue an execution against an individual member 
 of the defendant club, an execution against the 
 chib liaving been returned unsatistied, 
 
 //eld, that section 13 of chapter 53 of 4th 
 R. fS. , created no new liability on the part of 
 members of a corporation, but merely provided 
 that they should not be relieved from any lia- 
 bility that would have attached to them as pra't- 
 ners, if unincorporated ; that the members of 
 defendant club would not, if unincorporated, 
 have been liable as partners, and the Statute 
 was not intended to apply to such a corpora- 
 tion ; and, even if this were not the case, that 
 the plaintiff could not hold an individual mem- 
 ber liable without proving that he was a mem- 
 ber at the time of the return of the execution 
 issued against the club. 
 
 Rule m$i for leave to issue execution dis- 
 charged, but without costs. 
 
 Scott v. lioyal Halifax Yacht Club, 
 
 1 R. & G., 322. 
 
 See, also, CLIJB« 
 
 4th R. 8., C. 53, 8. 15-Cr. 5th R. S., C. 78, 
 
 s. 15— 
 
 " The acts of incorporated companies performed 
 within the scope of their charters or Acts creating 
 them Hhall be valid, notioithatanding they may not 
 be done under or authenticated by the seal of such 
 corporations." 
 
 Held, that under this section the sealing of a 
 
 bill of sale by the corporation making the same 
 was not necessary. 
 
 Hradley v. McLean, 2 R. * C, 684. 
 
 See CORPORATION, 17. 
 4tb R. 8., c. 75- 
 
 Held, that a violation of this Act is not an 
 indictable offence, and can Im) prosecuted only 
 in the mode prescribed by the Act. 
 
 In re Fra.ier, 1 R. & G., .334. 
 
 "Whore the words "convicted" and "con- 
 viction " are used in this chapter, they are used 
 in the most extensive sense, in which they 
 signify giving judgment against a defendant, 
 whether in a civil or criminal case. lb. 
 
 On appeal to the County Court from a judg- 
 ment and conviction by two Magistrates under 
 tiie license laws, the County Court .Judge, with- 
 out trying the cause de 7ioro, quashed the con- 
 viction on the ground that it was a conviction 
 simply for violating the license law, without 
 iitating the particular act of violation. An 
 appeal was granted to this Court. 
 
 Held, that the judgment below must be 
 atBrmed on the ground tliat the conviction had 
 rightly been quashed, and further, that the sum- 
 mary jurisdiction being abolished, the decision 
 of the County Court was final. 
 
 Wcatherbe, J., dissenting. 
 
 Hose v. Burke, 1 R. & G., 94. 
 
 4th R. 8., c. 75, 88. 2 and 3- 
 
 S. 2. " JVb intoxicating liquors shall be sold in 
 quantities less than ten gallons, to be delivered at 
 one and the same time, unless in the original 
 package in which imported," dr., <fcc. 
 
 S. 3. " Licenses for the sale of intoxicating 
 liquors shall oidy he granted by the Sessions upon 
 the recommendation of the Grand Jury, concurred 
 in by ttvo-thirdt of the members of the Grand Jury 
 present, accompanied by a petition from two- 
 thirds of the ratepayers of the polling district in 
 which the tavern t» to he established, praying for 
 such license. The genuineness of the signatures 
 of such petitions shall he established to the satis- 
 faction of the Court, and such petition and re- 
 commendation from the Grand Jury may be re- 
 jected in whole or in part by the Sessions." 
 
 Held, not ultra vires, the Legislature of Nova 
 Scotia, although it may to a certain limited 
 extent aflfect trade and commerce. 
 
 Keefe v. McLennan, 2 R. & C, 5. 
 
 Held, that a petition of a previous year could 
 not be used as a basis of a new license, but that 
 a new petition should have lieen presented. 
 
 />» re Liquor License, Co. of Halifax, 
 IR. &C.,257. 
 
U87 
 
 STATUTES, NOVA SCOTIA. 
 
 14S8 
 
 4tb R. S., c. 75. s. 6- 
 
 " The ptnnltiet for viulatiny th$ law relatinij to 
 the tale of into.> icaling lii/iiurg ihnll hereafter he: 
 forthefrtt offence ten dollars, or iniprtionmetit 
 for twenty day$ in the county or tlutrict gaol in , 
 the event of non-pai/menl of th$ Jint : for the 
 ■second offence twenty dollars or forty days' im- 
 prisonment ; for the third offence forty dollars or 
 eiijhty days' itnprimmnejtf ; and for every subse- 
 quent offence ciyhty dollars or three months' im- 
 prisonment." 
 
 Thi! wonls "every 8ubHC((uent offcuco" in 
 thin <;liai)tcr ivntl 8iibHe(|Ui'iit otlunuea in h. 7 i>f c 
 1, Acts of 1876, nieiui otFcncoH coinniittud Hul)Be- 
 (|iicntlv to the last previous conviction. 
 
 WiiKins, J., di^ieulhiij. 
 
 McUreyor v. ^fc Archer, 2 R. & C, 302, 
 
 Kach of the three last imprisonmonts depends 
 on the same contingency as the first, and they 
 are imposed only in the event of nonpjvynient of 
 the tine. The penalties are money penalties, 
 and the nonpayment is visited with increasing 
 and fixed periods of imprisonment which can 
 neither be diminished nor extended nor miti- 
 gated by admission lo the limits. 
 
 In r« Frostr, 1 R. & G., .S54. 
 
 4tll R. S., C. 75, 88. 4, 25, 26 and 30- 
 
 S. 4. Any one who violates the provisions of 
 this section " shall be linhlc on conviction to a 
 penalty of twenty dollars for every such offence, 
 to he pvnuecHted in the name of the Crown, or 
 any person who shall prosecute therefor." 
 
 .S. 25. "In cases of appeal the defendant 
 shall become bound with tico sufficient sureties 
 in a sum double," itc. 
 
 S. 26. " The bond to be yiven on such appeal 
 or on issuiny t icrit of certiorari shall be in the 
 same form as that in Schedule E, unto Her 
 Majesty Queen Victoria, her heirs and succes- 
 sors." 
 
 S. 39. " The Clerk of License or any private 
 prosecutor may bring an action on such appeal 
 bond without special leave obtained therefor." 
 
 Held, that the party who instituted a suit 
 under the authority of this Statute in the 
 Queen's name, could not be compelled to pay 
 the defendant's costs. 
 
 Queen v. Murray, 1 R. & C, 58. 
 
 The name of a relator should be indorsed on 
 the bond before action. 
 
 5ee CERTIORARI, 9-11. 
 
 4tll R. S., C. 75. 8. 28- 
 
 "7ft suits instituted by the Clerk of the Li- 
 censes, where the Justice before whom the trial 
 
 is had shall ylve judgment for the prosecutinn, 
 or if he ijlve Judi/ment for the difindant, ulinll 
 cirtit'y there was reasonable yround for C'lin- 
 menciny the suit, the prosecutor shall be fnlbj 
 indemnified for all costs and rxpenses on hath 
 sides, to be taxed by a <Jnd(je of the Supvihu; 
 Court," &c. 
 
 Iltlil, that this provision was appli'iablo only 
 tr) suits tried before a Justice, and had no 
 reference to actions brought and prosecuted in 
 the iSuprome Court. 
 
 Queen v. Murray, 1 R. & C, SS. 
 
 (Amercement of County for costs certitiud 
 under sec. 28) — 
 
 I'laintitf, as Clerk of License obtaineil a (■on. 
 viction for penalty before two Magistrates, 
 which conviction was set aside on certiorari for 
 want of jurisdiction. On application lo ainerco 
 the Municipality for plaintilT's costs, of whiuli 
 payment was refused, 
 
 Iltld, that there being no jurisdiction in the 
 Magistrates to issue process or try tlie cause, 
 plaintifT had ac(|uired no right under the Statute 
 to 1)0 compensated for his outlay. 
 
 Smith and Tiiompson, J.T., dinxenfin;/. 
 Jackson v. Municipality of Cumberland , 
 
 6R. &.(.':, 119, 
 
 4th R. 8., C. 75, 8. 41- 
 
 (Sessions siiall appoint member of temperiuiee 
 organization to sell licjuors) — 
 
 The omission of the (irantl Jury and Sessions 
 to follow tiie provisions of this section cannot 
 confer upon a druggist the right to sell liquors. 
 Gardner v. Pair, 2 R. & (i., •-'•25. 
 
 4tli R. S., C. 79, 8. - Cr. 5th R. S., C. 84, 
 
 s. 8— 
 
 "All (kedx, judgmenlH, and allachmentu afftH- 
 iwj lamh shall be registered in the office oj tk 
 County or district in which the lands lie. " 
 
 Per Ritchie, E. J. — (Jrants, leases and moi; 
 gages are mentioned in subsequent sections, but 
 no other instruments are referred to. 
 
 The only section in which any general words 
 are used, is that to prevent the tacking of 
 mortgages, section 20, where the words "other 
 incumbrance " occurs. Registration of the docu- 
 ments enumerated, and of these alone, is con- 
 templated by the Act, and the registration of 
 instruments not within the provision of the 
 Statute cannot be deemed to be notice of their 
 existence and contents to a party claiming under 
 a deed or mortgage for valuable consideration, 
 whereby such a presumption of knowledge is 
 raised that the Court will not allow it to be re- 
 butted by evidence to the contrary. 
 
 Cogswell v. Graham, R. E. D., 30. 
 
1489 
 
 STATUTES, NOVA SCOTIA. 
 
 1490 
 
 4tb R. S., c. 29, H. t'i Cr. 3th K. S., C. 84, 
 
 ». 11- 
 
 " Sitrh oath may he adminislfred hy Ihf. Hfijw- 
 Irnr of thi: roniify or diitrir/, nint xhall he m rer- 
 tiftr.tl upon the dud ; or it may he admiiiifitfre.il 
 hy a Jmli/e of the Sn/treme Court, or n JiiAiIre of 
 the /Vrt.v, or hy any olhir Itniintrar who ithnll 
 niijn a eert{ficnle thereof declarimj the dale of the 
 nttentation on the deed, and the name thall he 
 rii/iMtered thereupon alovif with mcch re.rtijhnte," 
 
 Wliero IV eortiHudte r)f the att.oHUtion of the 
 uxcuiitidii (if n (locil containoil no diito, 
 
 Held, that tho deed wrh properly recorded, 
 the wordH of this Hection iMsing merely directory, j 
 McKkutie V Lamonl, 2 R. kV., SI?. 
 
 4th R. 8., c. 79, H. 18-Cr. 5th R. S., C. 84, 
 
 s. 17— 
 
 " The certificate of rei/iHlry indorxed on any 
 deed, docket of judijment, or attachment, and 
 lii/ned hy the lieijistrar, shall he taken and allowed 
 in all Conrtu an evidence of the reijlxtry." 
 
 This Bfcction only makes tho contents of the 
 certificiite legal evidence, not when it purports 
 to he signed by the Registrar, but when it is 
 [iroved as a fact to have been so signed. 
 
 Oould V. McGreijor, 1 R. kV,., 33f). 
 
 4th R. S., c. 79, 88. 9 and 19 -Cf. 5th R. 8., 
 
 c. 84, 88. 8 and 18— 
 
 .S. 19. "Deeds or mortijagen of lands <lnly 
 exicnted hut not rei/istered, shall he roid wjainst 
 any snhseqnent purchaser, or morti/aijce for vnliia- 
 Itle consideration, who shall Jirst reijister hi* deed 
 or mort'iaf/e of such lands." 
 
 Plaintiff purchased, in 1872, a propei ty ad- 
 joining defendant's property, and to the north 
 of it. In 1859, Caldwell, who then owned the 
 northern property, granted by deed to <lefend- 
 iHit the privilege of piercing tho south wall of 
 his building, carrying his stove-pipes into the 
 flues, and erecting a wall above the south wall 
 of the building to form at that height the north 
 wall of defendant's building, which was higher 
 than plaintiff's. This deed was not recorded 
 until 1871, and the plaintiff 's solicitor in search- 
 ing did not search under Caldwell's name after 
 the registry of the deed by which the title 
 passed out of Caldwell's possession in 1862, and 
 did not, therefore, observe the deed creating the 
 easement in favor of defendant. Defendant's 
 northern window was so close to plaintiff's wall 
 that it was plain to one narrowly observing it 
 that defendant had no separate northern wall, 
 and the defendant's northern wall above plain- 
 tiff's building resting upon plaintiff's southern 
 wall was obvious to any one looking from the 
 opposite side uf the street. 
 
 Held, that the deed creating the easement 
 
 came within tho Registry Act ai "affecting 
 lands," that pliiintiff, however, was not IkiuuiI 
 by the registry of it in IS7I, although previous 
 to his purchase, tht. title having passeil out of 
 Caldwell in IS()2, but that ]ilaintiff must Iw 
 held to have had notice of the casement as tiie 
 encroachments were plainly visible. 
 
 Uoss v. Huntir, 2 R. & (i., 44. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, that the continuance of illegal burilens 
 on plaintiff's property since the fee had boon 
 acquired by him were, in law, fresh and distinct 
 trespasses against him, for which he was entitled 
 to recover damages, uidess he was Imund by tho 
 license or grant of Caldwell. 
 
 2. That tho drcd creating tho easement was 
 an instrument reciuiring registration under tho 
 provisions of tho Nova .Scotia Registry Act (4th 
 Rev. Stats. N. S., o. 70, ss. 9 and 10), and was 
 defeated by the prior registration of the subso- 
 <|Uent purchaser's conveyance for valuable con- 
 sideratiim, and therefore from the date of the 
 registration of the conveyance from Caldwell to 
 tho party through whom plaintiff claimed that 
 ta^e deed of grant to defendant became void at 
 law against the grantee in said conveyance, and 
 all parties claiming through him. 
 
 X That to defeat a registered deed, there 
 must be actual notice or fraud, and there was 
 no actual notice given to plaintiff in this case, 
 such as to disentitle him to insist in equity on 
 his legal priority acquired under the Statute. 
 
 Per Wynne, 3., dissentlmj.—'Wa.t upon the 
 pleadings as they stood on the record, the ques- 
 tion of tho Registry Act did not arise, and that 
 as the incumbrance complained of had been 
 legally created in 18.50, its mere continuance did 
 not constitute a ttespnss, and that the action as 
 framed should not be sustained. 
 
 Hoss V. Hunter, 7 S. C. R., 280. 
 
 -cr. 5th R. 8., c. 84» 
 
 i 4th R. 8., c. 79, 8. 
 
 I B. 21— 
 
 j "A judijment didy recovered and docketed shall 
 I hiiid the lands of the party aijainst whom the 
 judi/ment shall have passed, from and after the 
 registry thereof in the county or district wherein 
 the lands are sitnnte as effectually as a mortgage, 
 whether siich lands shall have heen acquired before 
 or after the registering of such judgment ; and 
 deeds or mortgages of such lands, duly executed, 
 hut not registered, shall he void against the judg- 
 mentcreditor, whoshallfrst register his judgment," 
 
 The words "whether such lands shall have 
 been acquired before or after the registry of such 
 Judgment" are in amendment of the law as it 
 stood before the 4th series, R. S. 
 
 Louisburg Land Co. v. Tutty, 4 R. & G., 40U 
 
1491 
 
 STATUTES, NOVA SCOTIA. 
 
 1402 
 
 •Iiiilgmcnt rof^iHlured takos iireciidiiiu^o of a 
 (Ittud iiiado [)rcvi()UHly to a party '.vlio Iiuh yono 
 iiilo pOHHCHHion of till! laiiil at tliu ilatii of tlie 
 lived, continued in |ioHHeHHioii lor hoiiiu yuaru, 
 hut who liaH liot rccordoti IiIh duud till after tliu 
 regiHiry of tho jiidgiiiciit. 
 
 llnmlley v. Jihdie, 1 K. it <!., '27. 
 See MOKTilAilE, r>(»- 
 JIUUHENT, '-'7. 
 
 4(li K. 8., c. 79, N. 'iter, fith K. S., c. H4, 
 
 8. 2;j - 
 
 livid, that this nectiim is cfintrollud liy the 
 IiiHolvont Act. 
 
 Alinoii it a/. V. (''rdy, ct al., K. Iv I)., (5. 
 
 4thR. S. c. H3- 
 
 See FUAIDS, STATUTE OF. 
 
 4th R. S., c. 84, NS. 1 and IT. 5th K. 8., 
 
 c. 92, HS. 1 and 10 - 
 
 An aHHigninent wau made to ])laintifl° for thu 
 b(in(!lit of cri'dilorH, whicli thi! aH.signue, liaving 
 taken poHHeHHion of tlie (.-Htatu and etl'euts, deliv- 
 ered to the HegJHtrarof Deeds at iiis house, at 
 3 A. M., vvitii iuHlruetirjuH to record it as a deed, 
 and lile it as a liill of sale. Tiie llegistrar did 
 not murk it "Hied," or file it aH a hill of nale, 
 or iniiuher, enter, or index it in the liook kept 
 ))y liiui for entry of lulls of sale, hut recorded it 
 in tiie \isual way as a ileed of land. It remained 
 in liisollice until Decendier ."), when it was, with- 
 out any instructions from jilaintill", sent hy nuiil 
 to the residence of the plaintifl', who was not 
 then at home, and who did not personally learn 
 that the deed had heen returned until the (ith 
 Januiiry. On the 0th January plaintiff returned 
 the ileed to the Registrar. Jn the interval, the 
 goods w(!re seized under an attachment issued 
 'i'inil Uecemher, and an execution ujKin a judg- ] 
 menl ohtained 'Jn<l .January against the assignor. 
 
 Held, that the assignment was of the class | 
 reiiuiring to he tiled under caj). 84, H. S., 4th ] 
 series, that the delivering of the instrument al i 
 the Kegistrar'a hou.se, with instructions to file, I 
 was Hufiioient ; that the removal of tiie deed 
 from the office could not, under tho circum- ! 
 .stances, he taken advantage of hy an attaching 1 
 or execution creditor, who knew of its having '■ 
 lieen in the office ; and that replevin for the \ 
 goods could ho maintained hy the assignee 
 against the Sheriflf. j 
 
 Fisher v. liUhop el al., 5 U. & (J., 451. | 
 
 4th B. 8., c. 86, s. 11- 
 
 " All persons (aid corporations icho shall, i7i 
 reliance on any such order or decree, as afore- 
 said, make any payment to, or permit any 
 transfer or act to be made or done by the wife. 
 
 who has obtained the same, shall, nolxnithslnnil, 
 inij such order and drrrie vunj then hun' In in 
 disehanjrd, rerersrd, or vnrird, or at .iniiic U'lni, 
 since the makimj the order or derree hn'n 
 discontinued, be jirotictrd and indemiujhd in 
 the same iray in all resjteets as if at Ihr timi 
 of such payment, transfer, or othvr art, umii 
 order or decree vjere valid, and still snbuistiiiij. 
 without variation, in full force and effect, mul 
 the separation of the wife from her hiinlnniil 
 had not ce(u*ieil or been discontinued ; viihun nt 
 the time of such payment, transfer, or othir 
 act, sticli persons or corporatiovs had noiicf i,f 
 the discharge, rariation, or rever:-,al of sitrh 
 order or decree." 
 
 I'er James, J. — This section corresponds wilii 
 sec. 10 of the Knglish Act, '-'I k 'J-J Vict. c. lOH, 
 with the excejition that the words "or al some 
 lime mice I he tnakinn of the order or been divon 
 tinned," and "and the. neparation of the wife f rum 
 hir hU'thand ha-i not cented or /teen disi'ontiiitieil." 
 which do not occur in the Knglish Act. 'I'ln' 
 .Statute makes no provision for registry of iiny 
 discharge of the order as it does in respect to tiie 
 order itself, so as to affect creditors with ion 
 structive notice that they are no longer to ileal 
 with the wife as a feme sole, and this claiisi: i.s 
 inserted to provide that they shall he entitled to 
 actual notice. Itut notice of what V And why 
 did the .Statute depart from the iMiglisii Ai.t Ijy 
 the insertion of these most significant wnnls'; 
 The Knglish Act did not rei|uire them hi.'iaiise 
 the terms of the Act m.ide the order tantaiiioiiiil 
 to a " decree; of separation " which is teuiiinalilu 
 hy re-cohahitation. Hut the framers oi" our 
 .Statute had used the term, " decree of divorie," 
 and these words were evidently iiiseitid u(iiiii 
 the consideration that this expression iiiighl \k 
 understood as referring to the continuity of t'le 
 separation ; therefor they meant hy this sect inn 
 that it shall not he so understood. The lan- 
 guage of the first interlineation is, "nolwilli- 
 standing such order or decree may then have 
 heen discharged, reserved, varied or discun- 
 tinned," and the second interlineation uses tiie 
 same word in connexion with the wor<l " Ne[)ara- 
 tion " ; " in full fori:e aiul effect, and tlie 
 separation of the wife from her hushand had nut 
 ceased or heen discontinued," showing tiial the 
 "discontinuance" of the "order" in tiie iir.fl 
 interlineation means the " discontinuance " of 
 the "separation," and that notice of this dis- 
 continuance was etjuivalsnt to notice of reversal. 
 Sinclair v. Wakefield et al., 1 R. & (J., 40.'). 
 
 I 4th K. S., c. 89, s. 6. 
 
 " Tt shall be lawful for the Supreme Court. 
 : or for any Judge of that Court, before wlium 
 
1498 
 
 STATUTES, NOVA SCOTIA. 
 
 1494 
 
 tin: rotmiilcratiini , trinl, nr hvnrinij of <niy i/iti h- 
 lion iifcijuitiihli' jurLHiUctioH, or (tnijuucli inij'id 
 (lurntii)ns (if liiw or I'ljuiti/ m<iij rmni', i/ Uuij or 
 hi- ahttU di'fin it rxpcitifnt (tint rundurivit to the. 
 ciiils ofjiistici' to ilo so, to orilcr till' vdHf or any 
 nulijfrt iiiiUtrr arininij thcnoii to liv triinxfrm-d to 
 the jurindirtion of the. h'ljiiity Judiji', to he dealt 
 irith iirrordinf/ to the ]irini'ii>lvn of iijnilulih' jii- 
 riKiiriidrnre, and the cxiijini'iiH of th<' ritKi'." 
 Ill (111 uctioii liy plaiiitiir ii^'aiiiHt <K'fi'iiiliiiilH, 
 
 4th K. 8., c. 90 -Cr. 5th K. S., i*. 100 - 
 
 111 lliin I'lovinci- till- t?xi'(nitiirn iiml iidtniniH- 
 tnitorH iiDl i.'ily rrpicscnt |iiTH(iiiully the tie- 
 (-•(ninimI, )ml rf|i,fMt'iil lijin ccniiilly in rcfiMt'in'c 
 to tlic fiiltiliiit'iit <{ all iihli^atiiiiiii clmr^'t.'il u|)<iii 
 his real fstatu. 'i'o lioM olIicrwiMo would In' to 
 violate liotli the letter uiul the nj>iril of caii. '.M( 
 of the Uevim'il StatutcH, 4lh hcrieH, liy which the 
 (liHtrihiitioii anil niaiini'i' of dealing with the 
 eHtales of deeeased parties an; rej^iilaled. In 
 
 on a policy of insiiiam.e, a third party claiine.l , t|,j„ ^x^.^ ,)„,re is no recognition of any (•harge 
 lo he interested in the insurance, aixl forl.ade | „,„,„ l^,^,\ „f ,l,.,eas.'d as heing preferential, 
 payment to plainliir Defendants ol.taiiie.l u | ,,xcept as to "dehls <luc on mortgages of real 
 ride iiln for an interplea.ler, upon urgumeiil j ,.„tate and on judgimjiits registered in the life 
 
 lime ^ '.e deceased," and it particularly pro- 
 viil(;s that this charge sliall oidy cxteml so far 
 as the value of tin; lamls so mortgaged or hound 
 liy such jtidgmont, leaving the mortgagee or 
 
 of which hefon; a .liidge at ('hamliers, the 
 .iiiilge, of his own motion, transmitted the 
 cause to l\w jurisdii'tion of the iJudge in Ivjuity, 
 under 4tli It. S., e. HiJ, s. (i. 
 
 J/ild, that the .ludge hud power so to trans- i judgment creditor lo claim as others after \.U< 
 nut the cause, allh<mgli he was not moved to do ; vulue of such pioperty shall have hem rcali/.iMl. 
 
 NO liy the eoiiiiMel on either side, and there waH 
 MO plea on e<|uitalile grounds. 
 
 MrKnrJi v. .h'nia liis. Co., 'J II. iV (J., :{-'(;; 
 
 •_•('. I.. 'I'., >M. 
 
 Siiidi/i-, that uniler section ,'{, ciiapter l'J4, 
 Revised .Statutes (,'lrd scries), whiih corre- 
 sponded with Ith R. ,S., c. M<», s. (), the Court is 
 iiM|uireil to interfere when e(|iiitahle consii'iMa- 
 tious aris(! in a legal suit, (even thougii no exer- 
 cise of its eciiiitahlc powers has heen solicited hy 
 tlic jiarties, or called forth hy the )ileadings), 
 Mu\ to |)rovide such relief as the cireumstaneeH 
 of the case demaml. 
 
 Mchiiiw H a/. V. McLcud, 1 N. S. I)., -J.-fJ. 
 
 .SV«r IIEPLEVIX, -'<> 
 
 /'' /■ Young, ('. .1. — 
 
 'I'liis section calls again into heing the iinre- ■ 
 Htriited eciuitalile powers hcdd hy the Supieme 
 ('unit and the .ludges thereof hctwecii the years 
 IS.V) and IH(i4, when the Ai't for appointing a 
 •Judge in Kcjuity was passed. "All actions at 
 l:iw," is its language, " in tlu; Supreme Court, 
 III! the trial or arguineiit of whicii matters (jf 
 iM|iiitahle jurisdiction arise," and " all actions at 
 liiw to which eiiuitahle defences shall lie set up 
 ill virtue of chapter !t4, section l'i'2 to 1()4, and 
 friPMi section '2{)(i to ,'{0(). " In all such actions the orilcr, neufi'.nri', iln-rie, or di'itial of th' Jiutiin oj 
 J^ii|Meine Court siiall have power to investigate Proliati',diri'rlly tothi.Siiprniu Conrl in IlaliJ'tix, 
 mill determine holh the matters of law and , irhirh Court ■■ihall knn: poirer lo conjiria, altar or 
 tiiuity, or either, as may he nece.s.sary for the riri^rm the Hiitm- : and Ihf n/i/ii'llatil ihidl, iri/hin 
 complete (idjiulicatioii and decision of the whole thirty dayn from Ihf makiiuj of luch onUr, i^li-., 
 mutter, a comprehensive, and 118 I think a most I ««/er AMa/)/>(:a/ . . . and, also, irilhin ttn dayi 
 W'liDlesonie j)rovisioii, extending to every com- thertafter, xhall file a hond lo the, Jiulje, withtiuo 
 moil law case, where ecjuity principles are duly Hure.litn to hf ai>i)ro,".il hy hivi, in thf />i'nat niunof 
 invoked hy plea or replication, and legitimately ^ tiro hundred and forty dollari, londitione.dfor the 
 »pply. Punch v. Chinhohn, 'A N. S. I)., 4b9. ' payment of inch co'it-t at may he awarded aijainnt 
 
 I Mrl.vlliin V. Mrl.vltnii, I U. iVC., H(l, 
 
 4th K. S., c. UU, H. II, sub-sec. I and 'i -IT. 
 
 5th R. S., c. 100, H. 11 
 
 j (Admiiiistratioii, lo whom granted and in 
 
 , what order) — 
 
 ! iSiih-seclions I &•_' expressly rei|uiiiMi citation 
 when the widow or next of kin, or hoih, do not 
 voluntarily take or renounce administration, 
 and hcforc a creditor is appointed ; hut there is 
 no provision fm the citation of the next of kin 
 as hetween theiusclvcs. 
 
 j //( re Ihitihi, .^i K. &(;., .ST.'.. 
 
 4th B. 8.. r. IM), K. VI cr. .ith K. S., c. 100, 
 
 H. 12 - 
 
 (.ludge of I'n.hate may associate anoliicr willi 
 next of kin in the adminislralion) — 
 
 Coverture is no disijiialilication when the hiis- 
 h.ind consents, and the hiisliand may under this 
 section he associated with the wife in the admin- 
 istration. 
 
 In re Iliililji, 'i K. & (i., 'M7\. 
 
 4th It. S., €. 00, 8.S. 7 « and HI IT. 5lh K. S., 
 
 c. 100, «8. 79 and 84— 
 
 .S. 77. " Any jternon may a/ipia/ frum any 
 
1495 
 
 STATUTES, NOVA SCOTIA. 
 
 1496 
 
 Under 5th R. S., c. 102, s. 33, "for want of 
 goods whereon to levy, " the constable, if in. 
 structed so to do, shall commit," etc. No exe- 
 cution to commit shall issue without express 
 order therefore to the Justice or Justices from 
 the party requiring the same, instructions to take 
 the body to be indorsed on execution. 
 
 A constable acting under execution issued 
 under 4th R. S., c. 91, held a " peace officer" 
 within tiie meaning nf Dom. Acts, 1869, c. •_'(), 
 8. .S9. 
 
 McDonald, C. J. , and McDonald, J., tlissevfiinj. 
 Queen v. Lantz, 7 R. & O., 1. 
 
 4th R. S., C. 91, 8. 31-Cf. 5th R. S., c.10'2, 
 
 8.34— 
 (Attidavit for appeal from Justice)— 
 Held, the attitlavit for appeal must be made 
 
 before the Justice who tried the cause. 
 
 Curry v. Lecras, 4 R. & (1., HI. 
 
 him on mch appea/, and such appeal, u-hen so 
 perfected, shall be a slay of proceedinijs," 
 
 .S. 81. " The Suprane Court or any Judije at 
 Chambers, upon special cause shewn at any time 
 within six months after the time limited for enter- 
 in;/ and perfectiii) an appeal, may allow an 
 appeal upon such terms as may seem just, in 
 n-hich case the same proceediwjs shall be had as if 
 the apptal had been oriijinally entered in the 
 Court of Probate." 
 
 The Judge of Probate refused to grant an 
 appeal from his decision, on the ground that the 
 bond, although in the form given in the Statute, 
 ('id not state what cause was pending. The 
 appeal was then granted by a Jiulge of the 
 .Supreme Court at Chambers. 
 
 Hdd, that the bond was in tiie proper form. 
 
 The appeal need not be argued within six 
 months. 
 
 In re Bath Estate, 2 R. & (i., 182 ; 
 1 C. L. T., 66.3. 
 
 4th R. S., C. 91, 8. 38- 
 4thR. 8., C. 91, 8.11— Cf.SthR. 8.,C. 192, _ " in all suits triable before tioo Jus- 
 
 8. 7— tices the summons and capias shall be signed 
 
 ''Any person arrested on any swh irrit shall ! j^^ ^^^^ Justices, and the execution in sttch case 
 he admitted to bail by the officer in the same I ^^^^^ J^^^^^ ^^^^ g^^jg^ „,j,2 g/j^,;/^ ^^,f^fyf prtixti- 
 mann-- as in other cases of arrest ; but in case I (.^^g^ ;,£ siejncd by the two Justices icho issued 
 the party arretted .■^hall be committed to jail, the : ^^^ mesne process and tried the cause," t£v.. itc 
 constable who committed him, or the Sheriff on j j^^f^^^ ^■^^^^^ unless some specuil reason is slio\ni 
 demand of the prisoner shall take him befov: the i ^ ^^^^^^ ^^^^^^ ^^^ ^^i^j ,,y ^j^g g^me two Justices 
 Justice or Justices, when and where the cause is to \ ^^^^ gjgned tlie writ. 
 
 be tried as often as may be necessary for the trial \ Weeks v. Bonham, 2 R. & C, ,^77. 
 
 of the ca\Lse, that he may be present during such I 
 
 trial, and attend to the same, and shall hare him j m, u, g,j e. 92, s. 31 — 5th R. S., C. 106, 
 in his custody during such time ; and the constaUe ' g_ 39_ 
 
 or other officer soconceyimj him shall, if judgment .. xhe Judges shall have pencer to direct thai 
 be against him for any sum, unless he shall forth- ^„ extra panel of petit jurors shedl be drawn al 
 with pay the same, re-conrey him to jail ; but any sittings in Halifax before a Judge in eq^cn 
 should the party so ai-resfed appecd from any Qourt" &C. 
 
 jiulgment, he shall, on perfectiiig his appeal, be | jhe prisoner, charged with feloniously reoeiv- 
 forthwith discharged from prison." jng stolen goods, well knowing, &c., was tried 
 
 There is no provision in the Act for the issue g_^^^\ found guilty by a jury ca'led from an extra 
 of execution or other further process, but the panel, the order for which was signed by only 
 party remains imprisoned by virtue of the Act, three of the Judges. 
 
 and under the judgment until discharged by the , JJeld, that the order was valid, although not 
 plaintiff, or due course of law. A voluntary signed by a majority of the Judges. 
 
 discliarge of the imprisoned debtor operates as 
 an extinguishment of all right to proceed against 
 him in any form under the judgment. 
 Frater v. Jenkins,20yi. S. R., (8 R. &;fi.),494. 
 
 4th R. S., c. 91, 8. 39, has been consider- 
 ably altered in 5th R. S., c. 102, s. 33 — 
 
 Under the former, the constable to whom 
 an execution issued out of Magistrates' Court 
 was delivered, was bound for want of goods 
 whereupon to levy, unless otherwise directed, to 
 commit the person against whom the execution 
 was levied to jail. 
 
 Queen v. Quinn, 1 R. & G., 139. 
 
 4th R. 8., c. 94, 8. 5— 
 
 " ]Mien a Judfje has power to grant an order, 
 he may in place thereof grant a ride nisi, re- 
 turnable at Chambers." 
 
 3rd R. S. c. 134, s. 238 reads exactly the same 
 down to the words "at Chambers" instead of 
 which are the words " in Term " and then follow 
 these words, which do not occur in s. 5 above, 
 " and the Court in term may make a rule return- 
 able at Chambers. " Probably in the 4th series a 
 line was accidentally omitted. In spite of the 
 
1497 
 
 STATUTES, NOVA SCOTIA. 
 
 1498 
 
 omission a Judge at Ciinmbers can make a rule 
 returnable in Term. 
 
 Oakea v. Tht City of Halifax, 1 R. & G., 98. 
 
 4th R. S., c. 04, 8. 6- 
 
 " The. ikciiiom and judijmentH of a Judi/e at 
 Chamhern shall hi all cast-i he nuhje.ct to np/teal to 
 the Supreme Court in Term, security for the coifs 
 o/^nrh appeal beiuij ijiven by the party appealiiiij 
 in the ,mm of forty dollars by a bond to the satis- 
 faction of the Judije who shall hare ijiren the 
 judi/ment, and irilhin a time to be limited by 
 him." 
 
 Does not apply to an order in the nature oi 
 a writ of heiheas corpis granted by a Judge 
 midur4th R. S.,c. 99, a. 3. 
 
 Ih re A. L. McKemit, 2 R. & (;., 481. 
 
 Where a Judge makes an order and considers 
 tluit he cannot grant an appeal, the English 
 ])i'actice is brought into operation, and there the 
 practice of moving to rescind the order of a 
 Judge in Chandlers is of constant occurrence. 
 Our Statute provides that in all cases such 
 appeals shall be allov^ed where parties think 
 themselves aggrieved by Judge's orders. The 
 case of a Judge refusing an appeal is not provided 
 fnr by our Statute, and in such case the English 
 practice is to be resorted to. 
 
 In re Cameron's Circus, 2 R. & (j., 248. 
 
 4th K. S., C. 04, s. 44- 
 
 (Constructive service of writ of summons) — 
 Plaintiff obtained an order under this section 
 for constructive service on defendant who was at 
 the time absent in England. The affidavit on 
 which the order was taken was substantially in 
 tliese terms, " That said defendant is absent from 
 the Province, and is as I am informed and believe, 
 in (Jreat Britain, so that personal service cannot 
 be effected upon him, if at all, without great 
 cxi)ense and inconvenience ; that I have a good 
 and available cause of action against defendant ; 
 that H. P. is the agent and partner of the 
 defendant in this Province." 
 
 Held, that the tvffidavit was not sufficient but 
 that it should have set out the facts and circum- 
 stances necessary to make it "appear to the 
 satisfaction of the Judge " exercising his own 
 jiulgment in the matter, that tlie case came 
 within the terms of the Statute providing for 
 constructive service. 
 
 McLtllan v. Baldwin, 3 R. & C, 554. 
 
 4th B. S., C. 94, s. 53- 
 
 See 4th B. S., C. 96, 8. 39. 
 
 4th B. S., C. 94, 8. 57- 
 
 " Previous to insuing a writ of certiorari the 
 
 I Judge or Commimoner shall require the person 
 
 applying therefor to file sufficient bail, in such 
 I reasonable amount as the Judge or Commissioner 
 ! shall direct, to respond the judgment to be finally 
 i giren in the cau-te ; and the Judge or Commissioner 
 
 shall indorse on the writ the amount for which bail 
 
 is filed, with the names of the bail, and also the 
 ' date when the writ ivas allowed, and shall jnit 
 
 his signature thereto.^' 
 I The ground was taken in the rule to (juash the 
 
 certiorari tiiat the bontl tiled was irregular and 
 
 bad in substance and form. 
 I Held, tiiat under tliis ground the objection 
 
 could not be taken tiiat a bail-piece should have 
 
 l)een filed instead of a l)ond. 
 I Tupper V. Murphy, 3 R. & G., 173. 
 
 4th R. S., c. 94, 8. 68-(Judgment by de- 
 fault)— 
 
 Per James, J. — 
 ' Whatever may liave iieeu the intention of the 
 Legislature in authorizing plaintiff to " sign final 
 judgment " in this form, there is no doubt tliat 
 ever since this clause was originally inserted in 
 the Practice Act, at least twenty years ago, — 
 for we find it in tlie second series of tlie Revised 
 Statutes, — it has been treated by the legal pro- 
 fession, in their ordinary practice, as authorizing 
 a cheap and convenient form of record ; and if 
 we were to come now to a contrary conclusion 
 we would invalidate numerous sales of real and 
 personal property effected under executions based 
 on records exactly similar to this. This considera- 
 tion should make us very careful not to adopt a 
 contrary construction of the clause except upon 
 strongest and clearest grounds. But, ajiart from 
 this consideration, I have no doubt that such 
 was the intention of the Legislature. We must 
 suppose that it was intended to effect some good 
 purpose, and I can conceive of no other purpose 
 it could serve except to promote convenience 
 and save expense to suitors. These objects it 
 effectually accomplished, and for any other 
 purpose the enactment is useless. That the 
 Statute should call the paper a "judgment" 
 instead of a " record," which is the legal evidence 
 of a judgment, when a record was intended, is 
 far more probable than that the Legislature 
 should have inserted in the Statute book a wholly 
 useless clause. 
 
 McDonald v. Fergmson, 1 R. & G., 70. 
 
 4th B. S., C. 94, 8. 102- 
 
 " The death of a jilaintiff or defendant shall 
 not caiMe the action to abate, but it may be con- 
 tinued in manner and under the restrictions 
 hereinafter mentioned." 
 
 Copied from 17 Car., 2, c. 8 (Imperial). 
 
U99 
 
 STATUTES, NOVA SCOTIA. 
 
 loOO 
 
 4tb R. 8., C. 94, 8. 106- 
 
 " The death of either party, beticeen the ver- 
 (h'rt and the jitdfiment, shall not hereafter be 
 aliened for error, so as such jud/jment be enter- 
 ed vrithin tieo terms after such verdict, or such 
 other time as the Court may allow," 
 
 Where the plaintifif recovered a verdict and a 
 rule nisi was granted to set it aside, but tlie 
 plaintiff died before the time for entry of causes 
 for argument, and the defendant did not enter 
 the same, the Court refused to discharge the 
 rule nisi and allow the plaintiff to enter judgment 
 nunc pro tunc, as of the last day of the sittings 
 in which the cause was tried, holding that the 
 defendant was not bound to enter the cause until 
 the plaintiff's representative became a party, 
 and that although plaintiff's representative was 
 not precluded from having the rule nisi dis- 
 posed of, he must, as preliminary to that end, 
 enter a suggestion on tlie record and become a 
 party to the suit. 
 
 Shepherd v. White, 1 R. & C, 155. 
 
 Ith R. 8., C. 94, 8. Ill— 
 
 ' ' Where the plaintijT shall fail to (jive security 
 for costs icithin twelve months after service upon 
 him or his attorney of a rule or order therefor, 
 he shall be deemed o?(« of Court." 
 
 Held, that it was not necessary to move the 
 Court for leave to enter judgment under this 
 section where plaintiff has failed to give security 
 for costs within twelve months after service of a 
 rule therefor, 
 
 dray v. McKeen; Xelson v. Fulton, 
 2R. & C, 402. 
 
 4tb R. 8., c. 94, S8. 64, 110 and 111- 
 
 .s. 04. "-1 fummom for particulars and order 
 thereon may be obtained from a Jxidije or the Pro- 
 thonotary, by either party, u-ithout the production 
 of any a^^davil," d-c, li-c. 
 
 S. 110. '* Any Prothonotary, in (he absence 
 of the Judge from the County, Khali have power to 
 grant orders for the stay of proceedings in a cause 
 until security for cosLi be Jikd, upon sufficient 
 grounds," d:c., itc. 
 
 g, 171. . , . "the Prothonotary in any 
 County . . . may grant an order for further 
 time to plead," Ac, A-c. 
 
 Held, that the power granted by these sections, 
 to Prothonotaries to give orders, is confined to 
 the C'cur.ty where the writ is returnable. 
 
 Cummings v. Brown, 2 R. & C, 303. 
 
 4th R. 8., c. 94, 8. 121— 
 
 "Either party may object by demurrer to the 
 pleadings of the axlverse party, on the ground that 
 
 I »uch pleadings do not set forth sufficient ground 
 of action, defence or reply, as the fa.se may he; 
 and H-hert the issue is joined on drmurnr, 
 the Court shalt procenl ami give judgmtnt ac- 
 cording as the very right of the cau-tt ami mn'- 
 , ter in taw shall appear unio them, without nganl- 
 [ iug any imjierftclion, omission, deject in or Iwk 
 ofj'orm, and no judgment shall be arresti'!, 
 : stayed, or reversed, for any imperJ'ection,cnnissiou, 
 dej'tct in, or lack ofj'orm." 
 
 ! Here end all special demurrers, and all 
 
 ' attempts to revive them must and ought to full. 
 
 Wallace et al. v. Ross, 2 R. & C, I'Jd. 
 
 This authority for objections by way of de- 
 murrer refers only " to the pleadings of the 
 adverse party," while sec. 86 o* the County 
 I Courts Consolidation, Act of 1880, prescribes 
 ithat ''there shall be no pleadings in a. sum- 
 ; 7nary cause, but the defendant or his attorne'j 
 [shall, tcithin the time specified in the notice 
 ; therefor, Jile with the clerk or deputy clerk oj 
 ! the Court, and serve on the plaintijf, a brief 
 \ statement of the grounds of his defence." iCc. 
 i The section as to demurrers is made applioal)le 
 ! to the County Courts, but affords no authority 
 ' for demurrer in a summary cause to the grounds 
 of defence. 
 
 Mahon v. Gammon, 4 R. & G., 2.32. 
 
 4th R. 8., c. 94, 8. 131- 
 
 (Mattei of law to be stated on demurrer)— 
 The only matter of law to be argued iu a 
 
 demurrer was contained in a note on the margin 
 
 of the demurrer, 
 Hild, sufficient to satisfy the Statute. 
 
 Gourley v. Carter, 5 R. & 0., 83^ 
 
 4th R. 8., C. 94, 8. 138- 
 
 i "7)1 action on specialties and covenants, the 
 
 \ defendant's plea that the alleged deed is not his 
 
 deed shall operate as a denial of the execution 
 
 I of the deed in point of fact only; and all other 
 
 [ defences shall be specially pleaded, including 
 
 matters which make the deed absolutely void, 
 
 as well as those tchich make it voidable." 
 
 Per Smith, J. — Under a, plea, that the 
 defendant "did not become bound by said 
 bond, nor did he make and deliver any such 
 bond," the plaintiff would be bound to prove 
 the execution of the deed "in point of fact 
 only," viz., the sealing and delivery thereof. 
 These essential facts he must prove. I cannot 
 regard the absence of a seal, or want of delivery 
 as rendering a deed " void or voidable," as con- 
 templated by the SUtute. These are the essen- 
 
1501 
 
 STATUTES, NOVA SCOTIA. 
 
 1502 
 
 deed is not executt-il " in point of fact 
 
 Haztll V. Dyax, 2 K. & C 
 
 tial elements of a specialty without which a made payable to one An.lcrson, and before the 
 
 alleged loss the defendant company by notice to 
 36. i "tti'l Anderson terminated the insurance, and 
 said Anderson agreed to terminate the insur- 
 ance and deliver up tlie policy to be cancelled. 
 
 Hdd, that these pleas were bad under sees. 
 151 and 152 of the Practice Act, as they did not 
 allege or show that the policy contained any 
 conditions reijuiring the action to be brought 
 within six months, or enaliling the company to 
 terminate the insurance by notice ; and that the 
 objections to the pleas were not such as could be 
 obviated by amending them under section 124. 
 
 Caldwdl V. Stadaconu Fire A Lift Inn. Co., 
 
 1 R. & (;., 2.-)9. 
 
 4tb R. S., C. 94, 88. 144 and 146- 
 
 (Plead;..g8 in actions for wrongs and in actions 
 for taking goods, ho.) — 
 
 Hild, in action of trover, that, under 4th 
 R. S., c. 04, ss. 144 and 140, defendant could 
 not under a plea denying the conversion, avail 
 himself of the def-snce that the goods were not 
 tlie property of the plaintiff. 
 
 Morrison v. FiKhwick, 1 R. & G., 59. 
 
 4th R. S., C. 94, 8. 145— 
 
 •' In actions for trespass to land, a plea that 
 (he dc/endaut did not commit the trespass com- 
 jibdned of shall operate as a denial that the 
 defendant committed the trespass alleged in the 
 jilace mentioned, hut not as a denial of the 
 j'lnintiff's possession or right of j^ossession of 
 that place, which, if intended to be denied, must 
 he traversed speiially." 
 
 To an action of trespass to land, defendant 
 pleaded, among other pleas, that the land was 
 not plaintiff's as alleged. The verdict was for 
 plaintiff. 
 
 Held, per McDonald, C. J., and Weatherbe, 
 J., that the plaintiff's possession was put in 
 issue by the plea. 
 
 Ar McDonald and James, JJ., that the pos- 
 session should have been specifically denied, and 
 the plea was not sufficient. 
 
 The Court being ecjually divided on the rule 
 for new trial, the rule dropped. 
 
 Emhree v. XoiU'i, 3 R. & G., 82. 
 
 4th R. 8., c. 94, ss. 151 and 152— 
 
 S. 151. ",4 plaint ij' or difendant may aver 
 
 4th R. 8., C. 94, 8. 152- 
 
 " The general ivsiw, and all general plea.'<, a»-« 
 abolished, and every pleading shall specify, par- 
 ticularly and concisely, the facts intended to be 
 denied." 
 
 Defendants pleaded as to certain agreements 
 alleged to have been made by them under seal 
 that the alleged deeds were not their deeds, and 
 they did not undertake and promise as alleged. 
 
 Held, that under 4th R. 8., cap. 94, s. l.Vi, 
 an objection could not, under the pleas, be 
 taken, to the authenticity of the seals, affixed 
 to the agreement as the seals of the defendant 
 companies. 
 
 Gregory v. The Halifax a7id C. B. Railway tt- 
 Coat Co. el al., 4 R. & G., 436. 
 
 Affirmed on app«al to the Supreme Court of 
 Canada, ICth February, ISSo. Caa. Digest, 4,34. 
 
 Leave to appeal to the Privy Council refused 
 3rd April, 18S6. Cas. Digest, 544. 
 
 Per .Sir \Vm. Young, C. J. —The plea of 
 nunquatn indebitatus in all cases, as I think. 
 
 ptrformance of conditions ptrecedent generally ; and a fortiori when pleaded to a policy of in- 
 md the opposite party shall not deny such aver- 
 ment generally, but shall specijy the condition or 
 conditions precedent the performance of which he 
 intends to contest." 
 
 S. 152. C;eneral issue abolished. 
 
 Plaintiff, in an action on a policy of insurance, 
 referred in his declaration to "the condit- ns 
 indorsed on the policy, and which constituted 
 the basis of said insurance," but he only set out 
 one condition referring to notice and proof of 
 loss, alleging that it was the only condition 
 material to his cause of action, and he averred 
 general performance of conditions. Defendant 
 pleaded that the action was not commenced 
 within six months after the alleged loss, and the 
 same was not sustainable under the said condi- 
 tions indorsed on said policy; and by another 
 plea, that by said policy the loss, if any, was 
 
 surance, is not only demurrable, but is abol- 
 ished, and may be struck out as of no avail. 
 Barrett v. The Isolated Risk Ins. Co., 
 
 1 R. & G., 215. 
 
 4th R. 8., C. 94, 8. 188-Cf. 5th R. 8., c, 
 
 104, O. XL., R. 23— 
 
 ''During the Uvea of the parties to a judg- 
 ment or those of them during ichose lives execu- 
 tion might formerly issue within a year and a 
 day xcithout scire facias, execution may issue 
 without a revival of the judgment, at any time 
 within six years after the judgment." 
 
 Under this section a plaintiff has six years, 
 instead of the year and day at Common Law, in 
 which he may issue execution upon a judgment 
 recovered ; nor is a judgment void if more than 
 six years were to elapse before execution sued 
 
1503 
 
 STATUTES, NOVA SCOTIA. 
 
 1504 
 
 out. Having suetl out a first execution within 
 six years of judgment, tlie law haH not declared 
 that it shall become necessary to issue the next 
 execution within six years from the issuing of 
 the one last previously issued. 
 
 Cochran v. Bell., 3 N. S. D., 488. 
 
 4th B. S., c. 94, 8. 189- 
 
 ( Reviving judgment and entering sugges- 
 tion) — 
 
 /Vr Ritchie, K. J.— The party desiring the 
 execution may obtain leave to enter a sugges- 
 tion, but there is no autliority for his making 
 the suggestion without leave, and such leave is 
 not granted as a nuitter of course, nor ex parte. 
 Barton et al. v. Baldivin, R. K. I)., 39'-'. 
 
 4th K. S., C. 94, 8. 191- 
 
 " The Su/nvme Court, and trtry Judijt thtrto/, 
 nhidl at all timex have the power oj'aimndiiuj nil 
 de/ecti and trrorx in any jironcdini/i in civil 
 camex, whether there he anythimj in writinij to 
 amend or not, awl whethi r the defect or error he 
 /hat oj the party or not." 
 
 In an action for trespass to real estate and tres- 
 I)ass to personal property, the jury found for 
 defendants on one material issue as to trespass 
 to real estate, but also found a general verdict 
 for plainti5. 
 
 J'er James, J.— Under above Statute the 
 Court, on appeal, could amend by directing a 
 verdict for defendant on the claim for trespass 
 to real estate. 
 
 Per Curriam.— Verdict must be set aside. 
 McKinnon v. McNeill et al., 4 R. & O., 25. 
 
 Equity ; he hears the application for the t dv, 
 
 and if, on application so made and unopjM)aeil, 
 
 he thinks that no sufficient grounds arc shown 
 
 to induce him to grant it, I do not see any good 
 
 reason why he should be called upon to hear llic 
 
 same arguments again addressed to him, witii 
 
 the only difference that tlien the other parly 
 
 should be heard in oppoiJtion, and at ("ommoii 
 
 Law tiie Statute gives an appeal from the ruling 
 
 of the Judge who tried the cause to the (.'oun 
 
 I in hanco, where the rule is made returnable ; 
 
 \ but in Kiiuity the rule is made returnable before 
 
 the Judge in Ecjuity liimself. The right to take 
 
 I the rule at Common Law, where the Judge lias 
 
 I refused it, is strictly statutory, and the terms 
 
 of the Statute must be strictly complied with, 
 
 whicli, it appears to me, can only be done al the 
 
 Sittings, or on Circuit in Common Law or Iviuiiy 
 
 cases tried there. See sec. 212 of the Practice 
 
 Act, as to the time and mode of taking out the 
 
 rule. There are no terms or sittings, so called, 
 
 in the E(iuity Court, which is always open, and 
 
 if in this case we overlook the letter of tlie 
 
 Statute, which requires that the rule should be 
 
 j taken out the last day of the Term or Siltings, 
 
 ! or such extended time as the Judge shall allow, 
 
 J and as far os possible act upon its spirit, we 
 
 j must come to the conclusion that the plainliff 
 
 allowed too much <'me to elapse before lie did 
 
 I so. The issues were tried and the verdict 
 
 i found on the 25th September, 1875, and the 
 
 1 rule was not taken out till the 30th Octol)er 
 
 I following. I think, therefore, that if the plain- 
 
 I tiff' had the right of taking the rule under the 
 
 I Statute, he has lost it by the delay. 
 
 Eaton V. Weatherbe, R. E. 0. , 48. 
 
 4thB. S.,e. 94, 8.210 - 
 
 " It shall be lawful for the presiding Judge 
 at the trial of any cause ichen he may deem it 
 right for the j)?()yoses of justice, to order an 
 adjournment for such time during the Term or 
 t''>ittings, or to the next Term or Sittings, and 
 subject to such rules and conditions, as to costs 
 or otherwise, as he may think fit." 
 
 At the trial the cause was continued a day to 
 enable plaintiff to get a deposition which could 
 not be found. 
 
 Held, that this was no objection to the verdict 
 for plaintiff, as the Judge had discretion under 
 aection 210. 
 
 Foster et al. v. Lamie, 3 R. & C, 269. 
 
 4th R. S., C. 94, 8. 212- 
 
 The reason for allowing the rule for a new 
 trial, to be taken out under the Statute, in 
 cases tried on the Common Law side of the 
 Court, when the Judge refuses it, does not seem 
 to apply to cases tried before the Judge in 
 
 4th B. S., C. 94, 8. 265 - 
 
 ' Per Smith, J.— By this section it is rendered 
 "competent for the party suing out the writ of 
 execution to direct by indorsement in wiiat 
 manner it is to be executed, which direction 
 the officer must ol)ey." Does this not mean to 
 meet the difficulty which might reasonably 
 occur from the peculiar nature of our writ of 
 execution ? If it were simply a writ of cnpia- 
 ad xatixfaciendum, no further directions coiiUl 
 possibly be required than those embodied in it. 
 Our writ may be considered a combination of 
 the Jieri facias and capiax ad satisfaciendum, 
 under which the Sheriff is authorized to do what 
 in England would require three writs to accom- 
 plish. 
 
 Gavaza v. Black, 3 R. & C, r29. 
 See, also, EIECUTIOX. 
 
 4th B. 8., C. 94, 88. 283 and 285- 
 
 S 283. Judge's order as to debts due by 
 third parties — 
 
1505 STATUTES, NOVA SCOTIA. 
 
 Kxocutioii may isHiie in (lofault of 
 
 1506 
 
 S. '285. 
 payment — 
 
 H'lil, that tlif true uonstnmtion of thuse sec- 
 lions is, that thmc is powur to make an oiiler 
 iiK'ainHt till! garni.slioe for payment of his delits, 
 as and when tlioy l)ucome payable, instead of 
 making a fresh order as caeh falls due. 
 
 AVttwr V. Mc Arthur, 'A li. & ("., 49H. 
 
 4th R. Sr, c. 94, 88. 290 and 295- 
 
 Our praetieo Aet provides that the form of the 
 writ of annunons shall be that given in the 
 scheduio No, 16, whieh form simply alleges that 
 the defendant withholds the possession to which 
 the plaintiffs or some or one of them ehiims to 
 he entitled. The writ does not claim the ex- 
 clusive possession of the premises, hut the pos- 
 session which the defenihmt withholds, and to 
 which the plaintiff is entitled, though only as 
 tenant in eonnnon. .Section 295 of the same 
 Act provides that the defenihmt's plea shall be 
 conKncd to a denial, in whole or in part, of the 
 pLintitf's right to the possession claimed, or to 
 .1 right of jjossession in himself with the plain- 
 titr, or to a denial that he was in possession of 
 the whole or any part of the premises, at the 
 lime of the action brought, and is not withhold- 
 ing the same. He is not permitted, therefore, 
 to plead that the plaintiff is tenant in eonnnon 
 with a third party who is not joined in the ac- 
 tion as plaintiff; but yet one of the grounds 
 liiken against the verdict is that it appears by 
 llie evidence, that some of the tenants in com- 
 mon were not joined, aa if that which cannot be 
 pleaded as a legal answer to the plaintiff's 
 Jcclaration, is still a legal defence. A tenant 
 in eonnnon of undivided property is entitled to 
 possession of every inch of it,— only possession 
 with the other tenant in eonnnon, it is true, but 
 still possession. 
 
 The question, under the writ of summons and 
 picas prescribed by our Statute, is, not whether 
 
 lakimj, or for an unlairfiU detention, whether 
 the oriijinal takinij may hare hem lawful or not." 
 
 Where there is no complaint of unlawful tak- 
 ing, there nnist bo a demand. 
 
 ijmtire, whether the demand in sui;h ease 
 should be pleadcMl. 
 
 IniiHi V. (f'reenwooU el al, 2 R. & ()., 'J. 
 
 4th K. Sm C. 94, 88. 329-345- 
 
 There is nothing in these sections inconsistent 
 with the fundamental rule that the defcmlant 
 named in the writ is the person from whom 
 ahino the goods are to bo replevied, and who is 
 to answer to the jilaintiff for takinj^ and detain- 
 ing them, and to have a return of the goods if 
 he shows hiuLself entitled thereto, nor with the 
 converse that if the goods are not found in tha 
 possession of the defendant named in the writ, 
 the writ is not applicable, and cannot be exe- 
 cuted. 
 
 Franer v. liriire, 3 R. & C, 61. 
 
 4th R. S., C. 94, 8. 330- 
 
 This section prevents the replevying of goods 
 sei/.ed by and in the custody of the Sheriff, 
 under process, out of the Courts therein referred 
 to, though such goods are those of a third party, 
 a stranger to the cause in which the process 
 issued ; and where other defendants, acting in 
 the Sheriff's aid and under his authority, are 
 joined, the writ will be set aside as to all the 
 defendants. 
 
 Carty v. lionjieft et al., .*} R. & C, 293. 
 
 4th R. S., c. 94, 88. 347 and 3S0- 
 
 S. ;U7 provides that action may proceed 
 against defendants who have been served. 
 
 .S. .350 provides that suggestion may be made 
 as to absent defendants, " and the truth of such 
 swjijeKtion shall be inquired into on the trial." 
 
 Plaintiff entered on the record a suggestion 
 
 tiie defendant withholds the possession to which ' '-'"^*' '-'"^ Canada Imprf)vement Company, one of 
 
 iiU the owners may be entitled, but whether he 
 withholds the possession to which the particular 
 claimant, from whom the possession is withheld, 
 is entitled. It is true that section 290 reijuires 
 tlml " the names of all the parties in whom the 
 title is alleged to be " should be mentioned in 
 t'lu writ, but that, of course, means the correct 
 tliiistian name and surname of each of the 
 claimants in whom the title is alleged to be, and 
 from whom the possession is withheld. 
 
 Ellis et al. v. Colonial Market Co. , 
 3 R. & C, 196. 
 
 4th R. S., C. 94, 8. 329-Cr. 5th R. S., C. 104, 
 
 0. XL v., R. 1- 
 
 the defendants, was absent out of the Province 
 when the writ of summons was issued, and on 
 that account could not be served with process. 
 The suggestion was not traversed, and it was 
 contended by defendants that it had not been 
 proved at the trial, and, therefore, that plaintiffs 
 should have become non-suit under 4th Rev. 
 Stats., c. 94, sees. .S47 and .S.50, and, further, 
 that the defendant could have been served under 
 section 41, of the Canada Joint Stock Companies 
 Clauses Act of 1869 (c. 12 of 1869), made 
 applicable to this Company by c. 119 of 1872, 
 sec. 9. 
 
 Held, that the suggestion, if the truth of it 
 was denied, should have been traversed by de- 
 " Replevin may be browjht for an tinlawfd \ fendants, and that the section of the Canada 
 50 
 
1607 
 
 STATUTES, NOVA SCOTIA. 
 
 I'iOS 
 
 Joint HUhU. (^lm|^anlc9 ClauHcs Act rtfciritl to 
 dill not iiiial)l>; mTviuu to \»' iiiiulc liy any otlicr 
 than the accuMtunu'd oliiijur, nor hoyond Uiu 
 jiirimliotion of llit^ Court, 
 
 llmjury v. Thi Jfa/i/ax and C. II, It'y and 
 Cold Co. et at., 4 K. it (1., 4;t((. 
 
 Attinneil on apiH^al to llie Siiiiifiiio Court of 
 
 (y'unada. 
 
 CaH, DiguHt, 4.S4. 
 
 4tli K. S., c. 01, 8. 355 IT. Titli K. S., C. 101 , 
 O. LXI- 
 
 " Any cinHUjniie, liy wriliinj xiijiud by Ihi aswj- 
 nor of l/ir. vntin: iiihri'*! in any rliosc in ac/ion 
 J'oiindid op.'iny ronlrarl fur iHiymcnl of mom y 
 only, or on any jiulijmtnl, dtvrtt , or ordvr for 
 paymtnt of momy only, and who nould. han luen. 
 fHlilltd to mainfain a ikiV //( h'unify, ax sni:h 
 mniijntt, to enforce such contract or the iiuynitnl 
 of such money, and the ex'-rulor or administrator 
 of liwh uisii/ncK, shall l>e i ntilli.d, in his on-n 
 name, lo maintain such jiirsonat action in the 
 Su/rretnt Court, and hare snchjinal jmijment and 
 execution in as full a viunnir as the person ori'ji- 
 nally entitled to swh chose in action, judijmeut, 
 decree or order, and n'hose intirest has Imn 
 amijne.d, miijht have had or done," Ac. 
 
 Per Townshuiid, J., doli vising the judgment 
 of the ('ouit, the words " in his own name to 
 maintain auuii personal action " simply give llie 
 assignee of a judgment the same right to sue in 
 his own name on the jiulgment liiat they do to 
 sue on a cliosc in action, i. e. to bring an action 
 of debt on the judgment. Ueviviug a judgment 
 is not " maintaining a personal action." A 
 judgment must be revived in tlie name of the 
 original parties, or their legal representatives in 
 case of death. 
 
 Jost V. McNeill et a/., '20 N. S. K., 
 
 (8 R. & (1.), 159. 
 
 sh<dl hare In in acc( pted Imnafdr acrnmpnninl l,ij 
 the poisissioH of the instrummt uxsliinnl, and 
 without knowliiliir ofthefrsl asxii/nno iil." 
 
 I'lr 'I'liompson, .J. -- Win re an luiiMii is 
 brought by an assignei^ in liic n.ime ot I he ansi),'- 
 nor, and tlie assignment is pleaded, a re iilicaliiiii 
 is good setting up tiiat tlie action is brcmnht liy 
 the assignee. 
 
 I'umsey if al. V. Cnunin'jham, ti It. k (1., .'i.'iT. 
 
 Itli R. 8., C. 01, s. 351 
 
 //./(/, notiiH! not necessary where dchtur 
 assents to the asHignmcnt and promises to pay 
 assignee. 
 
 Also, that del)t(tr ah)ne could take ailviiiitagc 
 of want of notice, that claimants undiT suhst- 
 (|m;nt bill of sale or mortgage could not. 
 
 Words "due and payable by the defend ml " 
 cannot be read as though the words "to the 
 plaintiff " were ad<led. 
 
 Parsons v. MacLean, .'} U. &<!., 40.'). 
 
 Defendant was indebted to plaint ill's us 
 signor, and upon demand of the amoinit by the 
 assignee, acknowledged the indebteiliiess !iii(l 
 vcju 'sted time for payment, promising, in ( hii 
 sideration of the forbearance, to pay the amniiiii 
 to plaintiir. Plaint ill' suing for the ikKl, 
 objection WHS taken that he was obligiMl ;is 
 assignee to give fourteen days' notice tnidci the 
 Statute. 
 
 Held, that the forbearance to sue was g 1 
 
 consideration, and that plaintitV coidd recovir 
 on an accomit stated. 
 
 Parsons v. Mac Lean, 5 R. & (!., 4'>- 
 
 4th R. 8., c. 04, 8. 370- 
 
 ''Kcery person who heivij surety for the deU 
 
 nrdntij of another, orbeimj liahle with iinolhir 
 
 fur any debt or diity, shall jniy such deld nr 
 
 perform such dnty, shall be entitled to /(div 
 
 4th R. 8., C. 04, SS. 355 and 350 --tf. 6th j ussiijned to fiim, or a trustee for him, ennj 
 
 R. S., c. 104, O. LXT 
 
 {Assigmnent of chose in action)— 
 tlonstruction of, as to whether the right to sue 
 in assignor's name is taken away or not. 
 
 ThmnpsoH el al. v. Ackhurst, 6 R. & (!., 1. 
 
 4th K. 8., c. 04, s. 356- 
 
 " Upon the execution of any such assiijnmtnt, 
 the riijht of the assiijnor to release or sue upon 
 such chose in action, jiidynienf, decree or order, 
 shall wholly cease and deten-mint ; and in case it 
 shall happen that there .shall hare been more than 
 one assiijmmnt made by the same person, the 
 assiijnme.nt thereof Jirst tmule bona fide shall 
 operate to transfer the riijht to release or sue upon 
 he same, unless the second assiijnment thereof 
 
 jmlijment, spiciully, or other securiti) vUhh 
 shall be held by the creditor in respect of .siid 
 debt or duty," &c. 
 
 This section is a transcrii)t of Imperial Ail, 
 19 & '20 Vict. e. 97, s. 5, and introduces a ik« 
 and remedial clause into the practice of tin 
 Courts, and extends to co-debtors, being cm 
 defendants, as well as to sureties. The olijict 
 of the section was to give the co-surety ui 
 co-debtor a prompt and ellieacious remedy fui 
 obtaining contributiim. 
 
 Exchamje Hank v. Brown, 2 R. & C. •">"■'■ 
 
 4th R. 8., c. 05, 8. 6- 
 
 ''Q'leslions in eiiuity, in which the Juihji' i» 
 Equity may be interested, or have been proh- 
 
150!) 
 
 STATUTES, NOVA SCOTIA. 
 
 1510 
 
 niiinallij n.iiiTrnnl, xhitU hr Immijht li</i,rr. our j in wliiuli it would lie lij-hi or just to iHHiic <mi«. 
 nr ninn: ,hidijrn itf the. Siijii'vme t'nurt, ac-ord- j 'I'lu.' icniedy at law bciiiK iuli'.nuito, an injunu- 
 
 tion waH rcfuNud, 
 
 Vniyliloii V. Jtnkim U nl., 5 H. & (i., 352. 
 
 iii'l to thv iKitiirt; i>f ihv ritn< 
 
 Kilcliii', K. .1., whi'ii at llic liar, had lici ii pro- 
 IVHHionally conHidtiul in rt^fcioiicc to tliu 8iiit, 
 wliicii «aM afterwardH inMtitiitcd liy liill in 
 i(|iiity. 
 
 //'/'/, that under tliis Ncetion liii was dis- 
 '|Ualiliud, 
 
 llnir'n V. Wiifhn , W \{. & (",, .'{•JCt. 
 
 nil K. S., r, 0.i, s. 18- 
 
 "III case of dvfauU fur muit nf n/ipcnrnnee 
 mid ((HHWi'r. !,)• irfiirc idl, the )iiii/< rial furlx nf 
 till- rtiHf ir/iirli iiititic the jihlhUiff to i<iniliddv 
 riliif <in' inhiiiUvdhij the dvfi'.ndnnl, the Court 
 I, mil llii:riu)iiin innkr. siirh onhr iix the riijhl 
 mid Jiislin iif till- nisi' shall rnpiur, hoth (is 
 nijiirils the nlirf priiyid for and the costs of 
 the suit." 
 
 A Hj)ouial vcrilict in ejectment had lieeu laken 
 for phiintifis l)y conHcnl, sulijecl to the opinion 
 cif tlie Court. Jlai)pearcd at theai-j,'unient that 
 the action had l)een lirouglit in the name of Home 
 only of the individual incinl.'er.s of a corporation, 
 and not in tlie name of the coipofation itself. 
 
 //(/</, Young, V. J., disseiiliiiij, that the ver- 
 ilict must he Hot aside, with costs of trial and 
 iif aij.'unient, and that an amendment without a 
 nrvv ti'ial, as granted in /loiifilier v. KiiofH:, '2 
 Old., 77, woidd not be allowed, the amendment 
 in that ease without a now trial heiug granted 
 solely on account of its peculiar cii'cum.stances. 
 
 .\ new trial was granted, with leave to the 
 pliiiul ilTs to ameiul by adding tho names of other 
 lilaintiflfa. 
 Huithnmn li al. v. McKeuM el aL,2 Old., 159. 
 
 4th K. S., c. 0.;, 88. 31 and 32- 
 
 Sce NEW TRIAL, 3-'. 
 
 ilh R. 8., c. 0.1, 8. .'i3- 
 
 "/;i (ill cases of lirmch of contract or other 
 injury, inhere the iiartij injured is entitled to 
 maintain and has hroiight an action, he may, 
 in like case and manner as hereinbefore pro- 
 vided, with respect to mandamus, claim a writ 
 "f injunction against the repetition or continu- 
 unce of such breach of contract or other injury, 
 or the committal of any breach of contract or 
 injury of a like kind arising out of the same 
 ''iiiiract, or relating to the same property or 
 ri'jht; and he may also, in the same action, 
 include a claim for damages or other redress." 
 
 Held, that by this section and the subsequent 
 iiiiM relating to injunctious, the power to grant 
 an injunction was not enlarged to cover all cases 
 
 ttliR. N., c>0.1, R. 73- 
 
 "Aii n/i/iinl shall in nil rnsrs, rxirpt mnllrr^ 
 oj /iraiiin or of rosfs, //, /rum tnry dtri.^iou, 
 ordir,judgminlaud, dirnt n/thc.Judgi in Kquily 
 /o thr Sii/iri'itK Court in haiir," ilr,, ifr, 
 
 A ground of appeal setting out that the .Judge 
 erioiuu)usly decided that the demurrer lieing 
 had in part was had altogether, and that under 
 the practice of the Court the said .ludgi! .shotdd 
 have ..Mveii judgment upon the whole record, 
 
 J/ild, b,id, as reluiiug only to practice and 
 coming within the exception in this section. 
 IV, ilA. Ify Co. v. ir. C. IVy Co., 
 
 W K. &'. v., .17tt. 
 
 The expression " matters of practice," which 
 arc not sidiject to appeal, refi^rs only to those 
 matters of mere procedure in which tho Judge 
 has a discretion hut not involving any legal 
 principle. 
 
 .?cc PRACTICE, 101. 
 4thi:. 8., c. ».?, s. n- 
 
 " 77i» inlcHlion loappial shall I ir, siguijled by 
 pi lit ion succinctly slati'ig Ihv grounds addrensed 
 to Ihi Judge in Ki/nily and arromjinniid by the 
 cerlijirnlc. o/coiinsd (not bring the altomry in the 
 cause), that in his jiulgment there is rea.wnablc 
 cuiisi: of appeal." 
 
 A ground of appeal setting out that the judg- 
 ment is contrary to law, and the allegations and 
 statements appearing in the hill and demurrer 
 and the Statute therein referred to, and also a 
 ground setting out that tho judgment should 
 have been in favor of the defendants for the 
 reasons and grounds raised by the demurrer, 
 " wliieh said reasons and grounds said defendants 
 here repeat as fully and to the like effect as if 
 they were set out at length." 
 
 Ifild, to be of no avail as being too general 
 and indefinite. 
 
 W. <t- A. K'y Co. V. W. C. IVy Co., 
 
 3R. &C.,.376, 
 
 Appeal must be certified by counsel. 
 
 Queen v. Donovan, 6 R. & G., 19. 
 
 4th R. 8., c. 0.7, 8. 75- 
 
 " The pelilion shall be presented within ten 
 days from the date of the decision, order, judg- 
 ment or dfcree appealed from, if the apjttllant 
 reside in the County of Halifax, fourteen days if 
 
mil 
 
 STA'niTKS. NOVA SCOTIA. 
 
 1512 
 
 i« mitf n/hrr Cnnnhj in \(im Srolitt /ini/ir/-, awl, 
 hrintif ilityx i/in ('n/ir Hrflim," il-''. 
 
 //</'/, iliiil llin titiiii within wliiili iiii ii|ip<'iil 
 imiHt. lie tiiUrn fiKiii II ilccMHiiin of iIm' Ki|uily 
 Coiirl, iiMilor iIiIm Hrrtioii niiiH frinii tliu iliiy "ii 
 wliii'li iIm^ ili'c'iNiiiii iH iiroiHiiinut'il. 
 
 nnr/on, Ailm'r. v. nnrnx, '2 U. A ('., ■"M!!, 
 
 4th K. 8., c. OS, N. IH - 
 
 (diiiiiirul |»roviHi(iiiM iw U> iv|)|hmiIh finiii tlm 
 ili'i'iHiniiH of tlir .liiil)^)! ill Kc|iiily) 
 
 Hi/it, tlint iiiiilcr <!. Ori, M. 7H, nil (irdor for 
 t.lio hciiii'iii^ of an appriil from thu ilnuiHJoii of 
 Ifui .Iii(lf{(! in K(|iiit,y in viicalion iwvt] not liii 
 ;{ivc'n liy llm Coiiil. in liaiiro, Imt. may lit! Hi^^iii'il 
 Jiv llu! .Iiiilf^tm inilivifliiajjy, and llii' appeal may 
 lir lirani liy (lie Hiinir i|iioniiii that, woiilil In: 
 !'('i|iiii'<'il for till: ri't^iilar trrin of the Courl. 
 \V, & A. Railway Co. v. /K. (J. llaihmu/ Co., 
 
 •,l K. &(J., Wi. 
 
 4thR. SMCOO.N.ll- 
 IDiHcovcTy l>y interrogalorieH) — 
 'i'lie (,'ouit will order a defi^ndaiit liorporat ion 
 doiiiK liiiHiiuwH in Nova Seotia, tlioiigli ineor- 
 porale<l aliroad, t,o aiiMwer iiilerrojjaloriea under 
 III is Heeli<i!i. 
 JIart et, al. v. iVculem Union Tdrum/ih Co. , 
 
 *2K. kCM't. 
 
 4th K. S., <-. )MI, H. 1.1 Cr. fith K. S., c. 104, 
 O. XXX VI., R. 18 
 
 '' IfjuiH inoUitnH fiiiindid ujion (ifflihiiiils, it 
 xliitll he limful for lilhir juirti/, wilJi Icnui'. of 
 Ihr. Court or n Jwlijc, tn mukc offlibtvits in 
 onswrr to the. offlilnvitu of th<; ojijioxitc. porlij 
 njinn onij non iiuittrr nriKinf/ out of surh iiffl,- 
 (Inm'ln, Huhjrrt In oil unrh rules an maij here- 
 after he made renperMmj nuch aJtldaoils." 
 
 I'rr Siiiilh, il. — 
 
 The Court liaH very properly, as I apprehend, 
 rarely permitted Hueh allidavitH to lie produced, 
 and the few ca«eH in wliioli tluiy have done ho 
 have lieen most exceptional, and as having lieeli 
 rendered ncce.Hiiry in order to jirevent tint 
 grossest injiiHtici., or to vindicate the standing 
 of memhers of the liar. To adopt a different 
 practice would clearly open a door to an undis- 
 ciplined manner of conducting arguinents, and 
 produce inextricable confusion. 
 
 O'AfiUliu V. McDonald, '.i R. & C, 2fJl. 
 
 4th B. 8., C. 06, 8. 30-Cr. 5tb R. 8.,C. 107, 
 
 8.5- 
 
 "All nffidanlH/or the purfmse of holding per- 
 sow to hail in thin Province, or harimj relation to 
 any jwlicial jiroceedimf in any Courl of Justice 
 therein, purporting to be 7Hade be/ore a Commis- 
 
 xiowr ap/minlid III do act'* leilhoitl Ihi I'mnini , 
 or a Judgi , i.lc,, , , . thiill haii Ihi iidih 
 iffirl at if maili liifori a Judiji i>r ollur lawful 
 aiilhorily in thin I'rorincf. ; provided Ihi mw 
 purport lo he malid irilh Ihr iial of nuch ('om- 
 miiiiomr," etc. 
 
 I'rr McDonald, C. .1. - 
 
 Section r>;{, chapter 04, Revised StatiilcH, 
 appears to lie limited toallidavils of a |iarliriiliir 
 charauter tlieruiii N))eciHed, namely, atlidavils of 
 service of writ or noliiie, or any other altidavil 
 for th(! purpose of eiialiling the Court or a.ludgi' 
 to direct proccicdings to he taken against de 
 f(!!idants out of the Province, or liy such defend 
 ants, and does not iiiidiide, as I iinderstaiid il, 
 such an allidavit as that wii are now eonsideiing ; 
 Imt in my opinion the atlidavits referred In in 
 this section must also Ihi nutluMiticated liy tliescil 
 of the Commissioner. .Section Tift of the (Niuiity 
 Court Act of I HHO, enacts that ' 'all affidaciu lit In. 
 nsed in the County Court or hefiire a Jwlge Ihirinf, 
 may he Kivom before a Jmlije, etc., . . and, 
 leheii xueh afftdavilH are made hy partien nvdimi 
 leilhimt Ihi I'rovinre, Ihi y nhall he nwitrn ai pro- 
 villi d in sictlim /i.l, chaplir t)//, ItevinedSlahili ■<," 
 Now section .'i.'J, chajiter <(4, reipiiroH all aflidavilH, 
 therein referred tfi, to lie sworn licforo "a Com- 
 missioner apiKiinted to take adidaviis and <l<i 
 acts without the Province." Section .'i? of 
 clinpter 9(i, authori/.es the apiiointment of Coin 
 missioners to do acts and take atlidavils without 
 the Province, and section .'Ml of th(! same chapter 
 reijuires all atlidavils sworn liefore such ('oiii 
 missioiier to be certilieil by tlio seal of the 
 (!omniissioiier. 
 
 JIilil, that an allidavit, to set aside picas in an 
 action in the (lounty ('ourt, sworn without the 
 Province before a CommissioiKir appointed tn 
 take allidavitH tti lie uscmI within the Province, 
 luit authenticated by the seal of such Commis- 
 sioncr could not In; reail. 
 
 Levin ct al. v. liriand, 5 R. & (!., 'JO.S. 
 
 4th K. 8., c. 06, H. 31 - €r. 5th K. 8., c. 
 
 107, H. 6- 
 
 " J'Jnery regi-iler of or declaration made in 
 respect of any lirilish xhip, in pursuance of any 
 of the Ac.Ih riJaling to the registry of Itriliih 
 ships, may he jtrovcd in any Court ofjmlicr, or 
 he fore any person, having, by lam or by consent of 
 parlies, authority to hear, revive and examiw 
 evidence, either by the irroilnction of the original 
 or by an examined copy thereof, or hy a co/y 
 thereof purporting to he certified under the hand 
 of the ]>e.rsom haviruj the charge of the original 
 
 . , . and every register or copy of regiskr 
 and also every certificate of registry granted nnihr 
 any of the Acta relating to the registry of liritith 
 
151.') 
 
 STATIJTKS, NOVA SCOTIA. 
 
 ir>l4 
 
 vfAnf/n, nnd imrfHtrlimj In !»• xii/niil an ritfuirid hy 
 lnii\ nhiill lir riri irril. in i riih iirr in mil/ Ciiiirf of 
 Jmlii'r, or lii/orr iiiiif jiirnoii hnriinj lnj hiir or 
 ronnnil of /inrliin, nnlhnrihi In hmr, rn'iii'i' nnil 
 frnminf iriihiin , as iirisiiiii/iiin iiroiif of all ihi 
 mnllrrn ronlniiiiil. or ririlnl lit siirh ni/lKlir," 
 
 Ifi/il, lliiit tU>: oa'tilii'iilit of ri'^'lHliy iif a 
 llritiHh Hliip iniiHt, im rcrcivnil hh /iriinii fwii , 
 
 or IIH tlUH Mlllllll)! (•X|ll'(!HNI'H il, HH |ll'l'HIIIII|ll i V(^ 
 
 pr'Hif of lill lliu inalUtrH contitinml or nii:it)Ml in 
 Hiii;!) rc^ixtrr. 
 
 Smilh V. Fulloii il at., 2 II. ,V ('., '-*-'.'".. 
 
 4th K. Hm c. (NI, h. »» €r. Slh K. H., ('. 
 
 107, H. 8 
 
 "A c i>!i ofiuiij i/rinit fnnn thv <'rini<n, or of 
 mill dii'd from lln' hoo/is of rrijintrii, nrtijlnt 
 initli'.r till' Imnil of Uir, /{ri/intrnr, or jirounl in 
 hi: a Irnr ropijtukrn thrrifroin, shull hr rrnirril 
 rt,w v.mlenrv. in thv, nhHvnri>. of thv. oriijiiuil, if il 
 shall he made to rippmr to the Court, h>j nffldu- 
 »ii'(, that Kurh oriijinal in not in thv ponsi union 
 or nndrr the, ronlrol nf thv part;/, anil that hr 
 hiiH ini/nircd for nnd hr.r.n nnalili', to prorure 
 Ihr. Kama." 
 
 Whom a (inrtiHod <iopy of a (loud waH oflTonMl 
 ill nvifhiiioouniltT lliiHH(!(;lioii witlioiH aniitliiliivil 
 llial tlu! ori^'iiial was not in tln^ iioHHCN.sioii, fii\, 
 of tli<! IMvrty, lull (lie ilrfcMilant who ofl'clM'd I hi! 
 impy, waH I'xiiinincil hh a witness at Ihr trial, 
 ami provi!)! that tins orij^inal wan not in his {xm- 
 
 Ilild, that thn ccrlifnnl copy wan midiciciit. 
 McKnrJi. v. I.nmoni, 'J K. k ('., .117. 
 
 //(7f<, that cortidoil copit* of iiiort^jiij^cH wvxi: 
 improperly received in evidoiici!, when; no alii- 
 davit had lieeii inado, as iinch copies can only he 
 received " in the al)Hencc of llie original." 
 
 In re llalf.ly, ti K, A (1., .'{"."i. 
 
 4th R. S., e. 00, R. 35 -.'ith K. 8., c. 107, 
 
 H. 10 - 
 
 Per McDnnahl, •!.- It in projxT to road tlial 
 chapter (iarofiilly to ascertain the intention of 
 the Ltigislatnro in inserting the Hection. 'i'he 
 Keneral words of a .Statiiti! are iu)t to Ik; con- 
 Rtriicd so as to alter tlie previfins policy of the 
 law unless no Hensc or meaning can he pnt upon 
 those words coiiHisteiitly with the iiitiuition of 
 proserving the existing policy iintouuhod. In 
 the chapter referred to the liCgislatiiro was ex- 
 ceedingly explicit when it intended to dispense 
 with proof nf seals, signatures, and the official 
 or judicial character of parties authenticating 
 copies of documents to be received in evidence. 
 Section 27 provides that proclaniatiors, treaties, 
 judgmonts, decrc-cs, orders, judicial pruccudings. 
 
 legal docnini'iils, etc., of any for<'it;ii Slate or 
 any Itrilish Colony, etc, etc., iniiy he proved 
 liy examined lopit'M, aiithenlicaled as llicrciii 
 afti-r inetitiiiiH'il. The Hection then provides 
 that the aillhi'lltical ion, to lie rvideni'i', shall 
 purport to lie signed, etc. " |(ut if any of the 
 aforesaid authenticated copies shall purport to 
 lie Healed or Higiu'd iis liereinliefoii' rexpectively 
 direi-ted, the Hamc shall lie rcMpeclively ad 
 iiiitted in evidence in every case in which the 
 original document could have liecii received in 
 evideni'c, without any proof of thi' si«il where a 
 seal is necesHary, or of the Hignalure, or of the 
 truth of the stateniciit attached thereto where 
 such signature or staliMnent is micessary, or of 
 the judicial I'harai'tcr of the persoii appearing to 
 have mail)! hui'Ii Nigliatllic and Htalemeilt." 
 Section *JH provides that documents which are 
 aduiissilile as eviditnce in Kngland or Wales, or 
 Ircdaiiil, without proof of IIk! seal or Htamp or 
 signature aMthciiticaliiig the same, or of the ju- 
 dicial or ollicial character of the person appear- 
 ing to have sigiKid the saiius shall lie adiiiissilile 
 h«!r(!, " without proof (and 1 here (|Uoli! the 
 words of the .Statute), "of the seal or slainp or 
 signature authenticating thi^ same, or of the 
 judi<Mal or ollicial chara<'tcr of the perHon ap 
 pcaring to have signed ihi! same." .Section .'1(1 
 pi'ovides for the ailiulMsiliilily of aflidavils for 
 I he pui'posi! of lioldiu;^ pcrsouH to liail in this 
 I'roviiict!, etc., |iui|i(irliug to lie made licfori! 
 ('onimissioneni outNidc the I'loviricc. It also 
 makes ihi: sc^veral oilier documeiits tlit^rcin 
 meiitioiuid evidence here, liiit the language used 
 is cxceiMlingly r.\i:i\.r w licre it is intended to dis- 
 pense with till! rei|uii'cmentM of the common 
 law. These sections which dispense with proof 
 of handwriting ref(!r solely to matters fif cvi- 
 dcn<!i! autheriticaled outsiile thi! rrovino!. In 
 ss. '«», .•{•-', :$:», ."M, .'ttl and ."17 of c. !)(i, providing 
 for till! admissiliility in (ividence of documents 
 within the I'rovince, not oik! word is said to in- 
 dii.'ate that the Legislature intcniled to ilispcnsc 
 with the necessity of proof of handwriting of 
 the ollicial. 
 
 Honld v. A/illrnjor, I K. &. (i., .TIO. 
 
 4th R. a., c. 00, n. 41 Sth R. H., c. 107, 
 
 H. 16- 
 
 . . . " I'roridid thai on Ihr. trial of nnij 
 inimr. joiwd or of any mnllrr . . nrimnj in 
 any nnil, adinn or olhrr pnifridinij in n.vy Court 
 of Jtisliee, or hefore. any pirnon hnrinij, hy law or 
 liy ronmiil of pnrlii's, (lulhorily to hear, ruceivp. and 
 rxnminf. fridenrr hrovijhl liy or mjainxt Ihf. cxmu- 
 lor or adminislralor of n rlrrfasril jwrson, il nhall 
 not hii r.omprlint lunnflir for any other of the, 
 partitH to Huch action, or the, tidfo of any such 
 
l.'ilA 
 
 STATUTES, NOVA SCOTIA. 
 
 U)l(} 
 
 imrly lit ijin n-'ih ini on In hill/ nf Minh ixnhj o/ j (Uifi'lliliilll'H liinl pliuui nf iiliorli', iih |p|(.\ i.lcil liy 
 liny ilriilintin, Iriiniiiiiioiii or iiijrinio uli irl/h lln Hfitimi '_', iin scivin'. Siiiii i'nni|iliiiiiri' wiili ilir 
 ilieinsiil, nr of niiy Hliitn)inil» or iirkiii'irliih/ i«i|uiii'im'nlH of lliu StiitultMH lu'ONMiiiy lnuivi' 
 miHli miiili or irorih ^imki ii /ii/ /i/m nc i;/' f(»i/ , tln' Coiirl jmimlii'lioii. Si'i'timi 'Jtl imd «iiliMti. 
 
 roiiririnlloiii irltli him ; /irorlilnl thni iiiiij -inh 
 IKirly or hi* irij'i thnlUn cnniinliiil lunl coinjii lln 
 hir, lo !firr. iriiliiii'i on Inhitif of itiiy iiirh i .n nilor 
 or iiilwiiiitlriilor." 
 
 I/ihly lliiil the iigolil iif II l-iff IliMUIUlicu ( '<>. 
 wiiH not coniiMituiil to givu I'viiloiifc on liiluilf 
 of Hucli (■oin|niiiy, of any Ktiifcini'iilH or luknow- 
 li'il^iiK'ntH of tliu ili'iii'iiHcil iiihUii'il, ill an action 
 Ity liiM vxi'iMilor or ailiiiiniHtrator a^^aiiiNt hucIi 
 ('oinpaiiy. 
 
 WilliillH, .),, ilitsi iilliifl. 
 O'Oonuill V. L'oiifiili riilioii l.ifi I in. Co., 
 
 •1 It, .V C, TiTO. 
 
 Oil njijiiiil to Ihi Siijin nil ('oini of ('aiiiulii, 
 
 III III, rtivt'iMing liu! jiiilginont of llu.' Court 
 liulow, that tlio cvidonou whh not inadniiMKilplc 
 iiniltT tlu^ Statnto in (|iu'Htion, anil slioiilil not 
 liiivc Irt'i'ii uitlilii'lil from tin; jury. 
 
 Thi', Coiifi'ilinilioii l/ifi All. of Camilla v. 
 O'/iohiiill, 11/ h Filiriinri/, IS7f>, 
 
 CivH. |)ii<i)st, 'JIW. 
 
 Ifrlil, that tliiH prnviMo appliuH to uvidunco 
 tcnilcrcd ill oanscH wlicrt! the cxri'iitorH or ail- 
 iiiiniHtratorn iiavc licooino partii'.s liy HiigjiCHtion, 
 after till) (Iciith of tlits original party ; the word 
 " Itrotight " in «aiil |)rovino1ifinj,'conMtriit'il with 
 till! woril "evidciiL'u " iiiiiiu'iliatt'Iy ini'i'nling, 
 and not witli tlin words "action or olju'r pro- 
 ceeding." Wilkiiis, .1,, ilixsi iilliiii, 
 
 Chisliij V. M unlock 1 1 al., •-' U. it C, :V2\. 
 
 Atliriiied oil appeal to tlic .Supreme Court of 
 
 Canada, 
 
 •_>.S. V. R., AH. 
 
 Su- EXECITOKS AND AUMIM8TKAT0R8, 
 
 13, 14, & 15. 
 
 4thK. 8., c. 07- 
 
 Cliapter 97 "f the Revised .Statutes makes 
 provision in cilmcs of alisent or altseonding deht 
 
 i|Uciil HcclioiiM of liiat diapli'i' apply lo ii 
 dill'ci'cnt cliiHH of dclitoi'M, nami'ly, fnrclgii com 
 paiiicH or (.'orporiilioiiH doing liiiHincHK liy an agent 
 within the Province, and il is provided tliiil 
 service of process to appear on the agent shull 
 give the Court jut isdi<I ion in the ease, Iml Ihcie 
 is no provision in these cases llnil the attaching 
 of the defendant's property shall give jurisdielioii 
 as is provided hy section '-'1 in lint cas4' of im 
 alisent or ahsconding delitor. 'i'lii' writ nf 
 iitlachmeiil here is not proeess lo appear al nil. 
 Sect ion -H holds the agent liahle to pay tlic 
 claim mil of the assets of the company or cor 
 lioialion it' jllilgliieiil he agailisl llielil, ami 
 section ,'to provides that if the plaintill' desiic 
 security previous to judgment he may inakeoalli 
 lolhecausi! of action and proceed liy allachliicnl 
 against Ihe estate of the defendant, which esliilc 
 shall then he availalile to icspoml the jiidgineiil. 
 It is mil necessary that the allidavil or the writ 
 of allachment should allege ihal the dcfendanlH 
 are aliseiil or ahseonding, and the law provides 
 ihe inaiiiu'r of service of the writ of Kiiiiimoiis. 
 .1 Imoii rl ul, V, Cok lliirhor Laml Co, , 
 
 I R. .1 C., ;t!t(). 
 
 4th U. S., c. 02, 8. .1 IT. .Ith K. 8.. c. 101, 
 O. XLVI., R. 4- 
 
 " IVIiin ijiiiiih iirv vxhihilrd to the Shm'ff im 
 thi' iiriijiirti) lit' thr itlmi'iil or iihuroinlinii ililitur, 
 thill ulinU he vithml hy two sworn u}ij>riii.iirs, 
 ami Hiiiin an appraisrmi'nt hoiwj miuli' nmhr 
 thiir hnnil.1, the Sheriff nhiiU levy npoii mu-h 
 jiiirt of the floods a.'i nhall he .iinUeieiit to re- 
 Sjioml the niim unborn In, and ]irubalile cimtH k.s 
 ithore ; hilt the defendant'n proiierlii hIuiH nut 
 he lionnd by the attachment vntil a levy ix 
 made." 
 
 Levy nniler the attacliinont undfir this chapter 
 may he made hefore service on the agent, anil is 
 efTectual from the time of seizure of the property 
 and not merely after appraisement and seleelinii 
 of the pniperty to he held to rcspr)nd the 
 
 ors, section 2 reipiiriiig that the allidavil, which judgineiit. 
 
 must ho made hefore the is-suing of the sumnions, j Sec. 5 has heeii changed in Order XliVI., 
 
 shall state that the defendant is ahsent or ah- [ R. 4 of nth R. .S., c. 104, to express more ii|illy 
 
 aconding from the Province, and section '-'4 pro- I the meaning put upon the former section in this 
 
 viding that the plaiiitilT shall not proceed in the i case. 
 
 trial against any ahsent or ahseonding debtor j The words now are "the Shorifr shall retaiii 
 
 unless his real estate or goods shall have hecn , such part of the goods, etc." instead of "llie 
 
 attached, or until the ag^nt or trustee siiall ; Sheriff shall levy upon such part of liie 
 
 have admitted that he has goods of the ahsent | goods, etc." 
 
 debtor in his possession or under his control. The Merchants Hunk v. The, Slid Co. oj 
 
 A copy of the summons is to be left at the | Canada (Limiltd), 5 K. &G.,'258. 
 
ini? 
 
 STATUTKH, NOVA SCOTIA. 
 
 151H 
 
 nil H. N.,e. «I. ". IH ('f..Hli K. S.,*". l«l» '''''I' i'"^' ""• "«'"•'• "' '•'«'' '"'"' '■'"'""• '■"'■ 
 O. XLVI., R. l.'i i led wiiitiN, iiiii IIdwIiik in tUlliu'il DlmiinulH, In 
 
 "A'o ^:,mm«i,^ chilli -\.». »// uiiirus, „,,ul„^l ''"i""* "'"1 pHMipiliilr lliHli oil tlic laii.l of 
 
 <in „l..n,l uriil,,r„„<li„>iil>l.li,rl,>l,n„uiniin r/,/, »/ uiiollirr jiiopiirtor I.iIom. A Kmiil lim) In' pir 
 
 ..,• Ini^hr, HHlil Ihr i>lni„/ljr or his n,in,l slin/l Hiinic.l wlini lliinlmH Imtii iloiii. iih of ii«lil for 
 
 imdr ,1,1 njll,ln,l' o/'/i/h l„li,/lh,il H,< i„ ,'^,m i„„ twriily yciirs, ini.l tliU iiol« illiMaii.llnK IHi K«'V. 
 
 I»is,il /,) hi fill III 1111,111 il is Ihr ilijiii/ or Inis/ii nf •'^IhIh,, ciip. HN», hcc. '.M. 
 III! ili/i iidnnt, or hath ijooils or rnilils n/ snrh 
 
 Jfitrristiii V, //iirrisnii, I K. iV (I., .'I.'JS. 
 
 ill I'l mill 11/ in his jiossi ssidu or iiinl, r his roiilrol." 
 
 A mcciiid MUiiiiiioiis (MM Inniio oil tho hhiiu' ' 4(|l Ki N., C. lOII (Of thO Hole Of liAlldH 
 utiidiivit. j uiuliT ton cKiHure of iiiortKiitfi)) Cf. r)lli R, H., 
 
 Hulij'ax liankiiiij (.'a. v. Wurrull, g j23 
 
 -.11. vt(i.,7(l. ' .s'" MOKTUAUK, «7. 
 
 till It. H., c. »t, N. '.Ml ( r. Ttlh l{. S., c. 
 104,0. XLVII., R. 1- 
 
 " Si rrli; oi. III, it,i,iit of /iron ss to n/ijunr" 
 mi'iuiH M«'i'vii.'ti on till' i'oiiipiiiiy'.-i iij^t'iil of pioccKH 
 i'<'i|uiiiiih' III!' coiiipiiiiy toiippcir, 
 
 III lliu corrcHpuiiiliii^ HOL'tioii in otli It. S,, c, 
 lilt, (). .\I.VII., U. I, tim woi'iIm iii'u cliiuigt'il 
 |o I In: following': " Hoivico on llin iiyrnt of llic 
 will of MiiinnionN liy wliicli llii> aulion Ih uoin- 
 iiuiiic'i'd." 
 
 Miirhaiils lUiiil; V. T\\i Sli,l Ciim/inin/ of 
 Cniiwln ( lAmiUil), .'. K. .t ( ; , LViS. 
 
 4Ui K. N., f. 1)0, 8. 3 Cr. 5(li K. N., c 117, 
 
 ( /fii),i,i< I'liri'iis niiiy \n) j,'i'anlt'il liy .Snpit'inc 
 Court or II iliid^'c tlicii'of, wlio may givo rulf or 
 onlur iiiHtciul of writ) — ■ 
 
 //(/(/, I hut 111! iippoiil from suoli iiii onlcr iIocm 
 
 not Ho. 
 
 In r, A. L. AfrK,n:lr, •_> U ^t (I., 4S|. 
 
 4tli K. 8., c. lUU, N. 13 -cr. 5Ui R. 8., C 
 
 112, 8. 12 - 
 
 " IIVh'H the vMitli' (,r iiif,r<'Kt cliiim,il nhiill 
 h,nic hi'i'H an rutut,' or intttrsl in rcrcrsinn or 
 rmiuindfr, or i,th,-r fnlnrn ixtiili' or intcrtnl, 
 mill no ]iir.ion nhull h,iri' ohtiiiiu'd the jmnsrs- 
 s/o*; of th,' rcri-ijit oj'thf projits of niii'h I, mil. or 
 tl,r nri'ijil of such riiiL in ri'sii,;'t of su,'h i-sliit,- 
 or intfrcst, then unch riiiM shall be (ko.nwd to 
 have Jimt accrued at the time at tohich awh 
 (■stale or interest became an estate and interest 
 in possession." 
 
 Untlor this Hcution posHuasion docs not liugin 
 to run until tlio piiitioa iiro in a position to make 
 an entry upon the land. 
 
 Kearney e.f ul. v. Kearney, 1 R. & C, 4'28. 
 
 4tli R. 8., c. 100, s. '28 - cr. 5tli R. 8., C. 
 
 112, 8. 27- 
 
 (('erlaiii ulaiins not defeated liy showing only 
 that the enjoyment began more than twenty- 
 one years previous) — 
 
 llllR. S., C. tOI,H. I'i- 
 
 " //■ //(< ,1,/, i,,lii„l, by iiiilii'i w( irrtlinii de- 
 linn ,1 lo th, ShirijI' III basi I, n days prii'ionsly 
 In Ihe s,tli,ri,ii,iri ihiil ,,rlnin /,orlions of Ih, 
 lauil so ad,;rlis,,l be first s,tld, lit, •Sh, riji' shall 
 ransi the sami lo b, first /ml hi, fur sale, and if' a 
 siijlieient snvi shall!,, rializnl therefrom lo satisfy 
 Ih, , X, r,illi,ii, iiilirisl awl ,xi„ns,s, no oilier part 
 of s,i<h Ian, Is shall b,' s,ild ; olhi ririsi he shall 
 liroi,,il ,eilh Ih, sal, oflh, r, mninder." 
 
 Although tiiiH section doea not extend to tlio 
 ease of mortgagor and mortgagee, yet if equity 
 to IV eestiii (jne Irnst rciiuiru it, ewpeeially if the 
 mortgiigee lie not prejudieed thereby, the 
 .Supreme Court posnenHeM the power and would 
 esereiKe it to dispo.se of Hiieli portioiiH of the 
 mortgaged properly iih would leant injure an 
 estate and yet eomplelely extinguiNli the delit 
 Heoured thereon by mortgage. 
 
 Miir'loeh V Itilloni et ul., Il N. S. 1)., n.'l'J. 
 
 4iii R. 8., c. 103 -cr. r>tii r. s., c. I'io- 
 
 (Koreible entry and detainer) — 
 
 Where a defendant broke open the door of a 
 burn without any cireum.stance.s of terror or 
 violence, and in the bona fide asuertion of an 
 iilh'gi'il right to the possession under a lease from 
 the pliiintifT, and defendant was arrested under 
 a warrant issued undei' this chapter, 
 
 //(/(/, tiiat the .Stat iitii was not applicable to 
 such a case. 
 
 Bertram v. Jionhum, ',i R. &, V,, 600. 
 
 4tli R. 8., c. 107, 88. 1 and 2-cr. .Ith R. 8., 
 
 c. 125, 88. 3 and 5— 
 
 8. 1. (ioods distrained to be appraised and 
 sold within live days after notice if not replevied. 
 
 .S. 2. (Joods to be sold, and, after rent paid, 
 surplus to remain for owner. 
 
 See LANDLORD AND TENANT, S. 
 
 4th R. 8., c. 107, 8. 7 cr. Sth R. S., c. 1'2S, 
 
 a. 14— 
 
 ((loods not liable to Ih! removed under exe- 
 
1519 
 
 STATUTES. NOVA SCOTIA. 
 
 1520 
 
 cution till rent paid, but not to exceed one year's 
 amount of rent) — 
 
 Ildd, not to apply to goods taken under 
 attaclnncnt under the AbHconding Debtors' Act. 
 
 Hut .SIC, 5lli U. 8., c. I'J"), H. 14, where the 
 words "any attauliuient " are inserted before 
 "execution." 
 
 Milkr V. Liwj, 4 R. & tJ., 135. 
 
 4th R. S., c. 109, 8. 22 — Cr. 5th R. 8., C. 
 
 115, s. 22— 
 
 " Where a submission has been made n rule 
 of the /Supreme Court, the Court may enforce 
 obedienrc to any award duly made under such 
 submission by directing a jud<jment to be en- 
 tered or execution to isstie for the amount 
 thereof with costs, or otherwise to carry into 
 effect such award." 
 
 The power conferred on the Court by this 
 section to enforce obedience to an award made 
 under a voluntary submission cannot be exer- 
 cised by a Judge at Chambers. 
 
 Sir W. Young, C. J., dinstntimj. 
 
 Collie V. Moren, 1 R. & C, 427. 
 
 Held, that under this section the Judge in 
 Equity was warranted in ordering that in case 
 a party to tlie submission should refuse to exe- 
 cute a deed reijuired to eflfectuate a sale directed 
 by the arbitrators to be made, the same should 
 be made by a Master of the Court . 
 
 In re Frastr d- Paint, R. E. D., 68 ; 
 3 R. & C, 10. 
 
 4th R. S., C. 111. 8. 13 -cr. 5th R. S., C. 
 
 101, s. 25— 
 
 " Where a Justice shall refuse to do any act 
 relating to the duties of his office, the party 
 requiring sxich act to be done may apply to the 
 Supreme Court, upon affidavit of the facts, for 
 a ride calling upon the Justice, and also upon 
 the party, to be affected by such act, to shoio 
 cause xohysuch act should not be done; and if, 
 after service of such rule, good cause be not 
 shown against it, the Court may make the rule 
 absolute, with or without costs, as they may see 
 meet, and the Justice, upon being served with 
 the rule absolute, shall obey the same, atid do 
 the act required. No action or proceeding 
 shall be commenced or prosecuted against such 
 Jxistice for having obeyed such rule." 
 
 Rule applied for under 4th R, S., c. 112, sec. 
 13, to compel a Stipendiary Magistrate to make 
 an order for the commitment of defendant under 
 Dominion Act of 1869, c. 20, sec. 25, for not 
 providing necessary food, etc., for his wife, re- 
 fused on the ground that the Justice in declin- 
 
 ing to make the order, had exorcised a judicial 
 discretion. 
 
 Queen v. Shorlin, 1 R. & Ci., 70. 
 
 4th R. 8., Appendix, p. 109, 8. 12- 
 
 "Any person being on any street, die, ip/io 
 atiall use abusive or provoking language, may 
 be forthwith arrested by any constable," 
 
 Held, that if a superior otliccr had authority 
 to arrest, under this section, it was the duty of 
 an inferior ollicer lo obey, and if resistance were 
 offered, bystanders might be called in aid. 
 
 Peppy V. Orono, 1 R. & C, '.W. 
 
 Rev. 8tats., 5th 8erie8, came into force 
 April 23rd, 1886. 
 
 5th R. 8., c. 1, 8. 7 (O- 
 
 •S'ee 4th R. 8., C. 1, 8. 1. 
 
 5th R. 8., C. 4, 8. 67— 
 
 Disfranchises any one " ivho at any time within 
 fifteen dayx befm-e the day of election was an 
 employee, or in the receipt of wages or emolument 
 of any kind as such employee in the Post Office, 
 the Cuxtom //ouse, the Inland Revenue Depart- 
 ment, Ike fjighthoiine Service," tfcc. 
 
 Held, that a sub-collector of Customs was an 
 employee of the Custom House within the 
 meaning of the Act. 
 Munro v. Elliott, 20 N. S. R., (8 R. & G.), 330. 
 
 5th R. S., c. 4, 8. 95- 
 
 (Penalty for voting when disqualified by 5tli 
 R. S.,c. 67)— 
 Munro v. Elliott, 20 N. S. R., (8 R. & G.), 330. 
 
 5th R. 8., C. 7- 
 
 (Act to consolidate the Statutes relating to 
 Mines and Minerals) — 
 
 See MINING LAW - 
 
 4th R. 8., c. 9. 
 
 5th R. 8., C. 7, 8. 39— 
 
 " All applications for prospecting licenses shall 
 accurately define by metes and bounds the lauds 
 applied for, and shall be accompanied by a pay- 
 ment at the rate of fifty cents per area for every 
 area up to ten areas in extent, and of tioenty-fivt 
 cents for every area in addition to that extent." 
 
 The application for a prospecting license over 
 certain mining areas defined the locus : "Be- 
 ginning at a stake marked W. M. L., standing 
 about one mile westerly from Malega Lake, in 
 the County of Queens." At the time the appli- 
 cation was made, there was no stake marked as 
 described at the locality indicated, from whicl) 
 
1521 
 
 STATUTES, NOVA SCOTIA. 
 
 1")22 
 
 5thB. 8., C. 'itf, 8. 34- 
 
 •S ' 4th B. S., c. 32, s. 04. 
 
 tlic (lesuription could start, hut ii stake nmrkeil 
 ■IS desci'iljed wiis put down soon iiftecward. 
 
 Iltld, tliat tlie application was bad, as not 
 accurately derining hy metes and bounds tiie 
 liiiuls a])plied for, within the meaning of the 
 Mines Act, ")tli R. S., c. 7, s. 3i). 
 
 IW McDonald. J.-That the reference in the : gj^ K. 8., C. 35. S8. H, 9, tO and 48 
 
 3thK. 8., C. 33- 
 
 See 1st R. 8., C. SO. 
 
 Statute to a description by metes and lM)unds, 
 refers to metes and bounds existing at the time 
 (if the application. 
 
 (Jiintn, j)(:r McDonald, C. J.— Whether the 
 
 stake having been subsequently placed, the | 
 
 application, in the absence of fraud, was value- I 
 
 less as between the applicant and the t'vown. 
 
 Jie Mahija Ikirvtiis, ex part t MuLeoil, 
 
 •20 N. .S. R., (8R. &(;.), 44. 
 
 5th K. 8., c. 7, s. «5- 
 
 S " 4th R. S., c. 9, 8. 67. 
 
 5th R. 8., c. I, s. 82- 
 
 (Manner and conditicms of appeal from the 
 Commissioner of Mines) — 
 
 Appeal dismissed where the affidavit was 
 made in Toronto before a Notary Public for the 
 I'rovinee of Ontario. 
 
 Jk Uedlty, 20 N. .S. R., (8 R. & G.), 130. 
 
 5th R. S., c. (, ss. 84 and 89- 
 
 .*»t( 4th R. 8., c. 9, ss. 80, &c. 
 
 Sth R. 8., c. 10- 
 
 S^t< 4th R. 8., c. 12. 
 
 5thR. 8.,c. 19,s. 3- 
 
 Ste 8TATl'TE8, IMPERIAL, 
 
 ! *' 4th R. 8., c. 33, S.S. 8. 9, 10 and IS. 
 
 5th R. 8., C. 35, s. 18- 
 
 *V. 2nd R. 8., C. 89, 8. 17. 
 
 5th R. 8., c. 35, 8. 20- 
 
 Si'c 2nd R. 8., c. 89, 8. 25. 
 
 5th R. 8., c. 35, 8. 23- 
 
 .SVr 2nd R. 8., c. 89, s. 28. 
 
 5th R. 8., €. 37- 
 
 Sef. 8TATITE8, IMPERIAL, 
 
 7 JL 8 Vict. c. 101, s. 3. 
 
 5th R. 8., c. 37, 8. 1- 
 
 S' 4thR. 8., c. 35,8. 1. 
 
 5thR. 8.,€. 42,s.4- 
 *^ 4thR. 8.,c. 40, 8. 4. 
 
 3thB. 8., c. 42, 8. 8- 
 
 (Dyke rates exceeding one dollar and fifty 
 cents, how assessed) — 
 
 The Commissioner of a dyke made a rate 
 24 Geo 2 f 44 s S— '•'"'"""''"n ^^ '""'''^ •^1"''^'' ^^-'^ pei' 'wi'e, without 
 STATIITI-S VnV4 «rnTI4* ' ' ~ '^'^"'"g *•>'= P''°P"«t"''« together under the Su- 
 H1A11J1I!.», >OIA SjIOTIA, tute, oth R. S., c. 4-2, s. 8. 
 
 54 tieo. 3 (1814), C. 15. Held, that he had no power to do so. 
 
 I Quaere, per Ritchie, .J., whether the Commis- 
 5th R. S., C. 20, 8. 7 — I sioner could levy an assessment for costs. 
 
 ■Sec 4th R. 8., C. 22, S. 7. : -^« re Bishop Dyke, '20 N. S. R., (8 R. & «;.), (i.'.. 
 
 5th R. 8., e.24-(Of Practitioners Of Medl- ,*•, » c; „ •., ^ .,n 
 
 cine and Surgery)- j ^"' "* '*" *' *^' ^- ''''" 
 
 See MEDICINE AND MEDIC IL (l^'"»%'e« for sods or soil cut off lands of dyke 
 
 : l)roprietors) — 
 PRACTITI0NER8. ; ^ jyi-y ^.^^^ assessed Ijy the Commissioner 
 
 -,1, H o - .,, „ .,., I included, beside the legitmiate expenses, three 
 
 om n. »., C. i\, 8. il- , 3„„j^ . (,j^ j^^, ,,,,,„.,y^,y ty ,.^,^,1^ ^j ^^^ ,^f ^^^^ 
 
 Sec 4th R. 8., C. 28, 8. 22. owners, valued Ijy assessors appointed by the 
 
 owners, instead of being agreed upon or valued 
 
 •')th R. 8., c. 29, 8. 43— 
 
 See 8TATUTE8, NOVA SCOTIA, 
 
 soviet. (1873), c. 17- 
 2nd R. 8., e. 00, 8. 10- 
 4th R. 8., c. 32- 
 SCHOOL LAW. 
 
 m 
 
 by freeholders, as pointed out iu section 20 of 
 chapter 42, R. .S. ; (2), costs incurred by the 
 Commissioner in bringing an unsuccessful action 
 for dyke rates against one of the proprietors ; 
 (3), conunissions on the whole sum, includin" 
 the above items. 
 Held, that items 1 and 2 could not be allowed, 
 
1523 
 
 STATUTES. NOVA SCOTIA. 
 
 1524 
 
 and tlmt tlieir disiilldwiince in\'f)lve(l a ruiluctioii 
 of item 3; tlmt, therefore, the rate must be 
 (|uaslieil with costs. 
 
 /,( n nishoi,hijl:,.,-H)'ii. ^. R.,(s It. &(i.),2();i; 
 
 SC. L. T., 440. 
 
 5lh K. S., C. 45, s. 2- 
 
 Vtt Ist R. S., c. 02, 8. 2. 
 
 iilh K. S., c. 4.1, ss. 2 iiml 3— 
 
 Stt ST.iTlTES, XOVA StOTI.l, 
 
 4 Will. 4 (1834), c. 00, s.l. 
 
 3th K. S., c. 47, s. 20- 
 
 y ST.iTlTES, XOV.\ SCOTIA, 
 
 ! iico. 4 (1820), C. 2, 8. 30. 
 
 5tli K. S., c. 37, s. .1 — 
 
 (Controverteil elections of Munieipal aniri'MUM 
 C'oinieilldi's) — 
 
 Same as Acta 1881, c. 1, .s. 14. 
 
 " The trial of every election petition shnll he 
 conducted l/eforc a Jiuhje of the Coitnty Cmirt 
 ill the district in vhich the eleetinn coutrovi rlid 
 van hehl, or the Judije pre.sidiixj in hix ntnnl, 
 tor the reaiions mentioned in the Acts rehitimj 
 to County Courts." 
 
 Ilild, infra r/;v.sof the Provincial Lcyislatiiii'. 
 Croire v. McCiinli/, ti R. & (i., ;i<il, 
 
 5th R. S., C. 57, s. 00- 
 
 V. STATITES, XOVA SCOTIA, 
 
 44 Vict. 1 1881), C. 1, ss. 18 illHl 0!). 
 
 3th R. S., c. 38, s. 4 - 
 
 V' ' 3rd R. S., c. 45, s. !.'>. 
 
 3th R. S., c. 48, s. 7- 
 
 "Xo /lerson shall ride or drive any horse at 
 full speed, or in a disorderly manner, in the 
 pinhlie street or hiyhway in any town or 
 villaye." 
 
 I'laiiiliffantl I). (!. entereil into an a<j;reement 
 to trot a race on the Wentwortli Road, for the i 3th R. S., C. 58, S. 
 Slim of SM a side, between the plaintiff's horse 
 " Charley " and a liorse owned by \V. ( i., known ] 
 
 as " Royal Harry." The money was deposited: Jtli K S o 07 
 
 in defendant";* hands as stakeholder. i 
 
 In an action brouglit by plaintiff' in the Coun- ■ 
 ty Court to recover the stakes, it appeared that : 3th R. S., C. 78, S, 13 
 the AVentworth Road was a public street witliin 
 the limits of tlie town of Windsor. 
 
 Held, that the contract was tainted with ille- 
 gality, and incapable of being eniorced, as being 
 made in violation of the provisions of 5th R. 8., 
 c. 48, 8. 7. 
 
 Doran v. Chambers, 20 X. .S. R., (8 R. & (1.), .S09 ; 
 
 9C. L. T., 7. 
 
 3th R. S., C.58, s. a ' 
 
 s- 3r(l R. S., C. 43, s. 10 
 4th R. S., c. 21, s. 10. 
 
 Su 4th R. S., c. 21, s. n. 
 5tc 3rd R. S., c. JS. 
 
 Sec 4th R. S., c. 53, s. 13. 
 
 3th R. S., c. 78, s. 15- 
 
 Sce 4th R. S., C. 53, s. 1.1. 
 
 5tb R. S., c. 48, s. 13- 
 
 S.t 4th R. S., c. 47, 8. 13. 
 
 5th R. S., c. .50- 
 
 See STATITES, XOVA SCOTIA, 
 
 42 Vict. (1879), C. 1. 
 
 5thR. S., c. 50, 8. 70- 
 
 See SLAIl'TES, XOVA SCOTIA, 
 
 42 Vict. (1879), c. 1, 8. 00. 
 
 5th R. 8., C. 50, s. 88- 
 
 See STATUTES, XOVA SCOTIA, 
 
 42 Vict. (1879), c. 1, 8. 76. 
 
 .ith R. S., C. 84, 8. 8— 
 
 So. 2iidR. S., c. 113, 8.9- 
 
 4th R. S., c. 79, s. 9. 
 
 oth R. S., c. 84, 8. 11- 
 
 Sce 4th R. S., C. 79, s. 12. 
 
 5th R. S., c. 84, s. 17- 
 
 See 4th R. S., C. 70, S. IS. 
 
 5th R. S., c. 84, 88. 8 and 18 - 
 
 Se,< 4th R. S., c. 79, 88. 9 and 19. 
 
 5th R. S., C. 84, 8. 18- 
 
 Stc 2nd R. S., c. 113, 8. 19. 
 
 5th R. S., c. 84, s. 19- 
 
 Ste 2nd R. S., C. 113, S. 20. 
 
1525 
 
 STATUTES, NOVA SCOTIA. 
 
 ir.2G 
 
 .nil R. 8., C. H4, s. '21 - I .1th K. S., f. 92, s. 1 
 
 •V" 4tll K> S., C. 70, S. 22. (Hill ipfs^lc 111- sworn copies to he filed with 
 
 Ueu'i^tiiU' ol' Dffils u luii^ iiiiikei' resides) — 
 .nil Kt Sa, C. 84, S. 2:t — I //■'''/, not to iippiy to ii eiisewheretliegrantee 
 
 >'" llh Ka S. C lO S. 24. '""''^''' '^ 'lillot j-alf not tiled Imd gone into actiiiil 
 
 pof-session of tlir; ipro|»ilv. 
 
 .5th R. S., C. 8K-- i •'^'■/'■"" V. Ii'ii ■>«'■, .1 R. & (i., l-'S. 
 
 X ' STATUES, NOVA SCOTIA, 
 
 ^i.Kieo. ;{ iisi.>), c. 14— 
 2ii:l R. S., c. 112. 
 
 jth It. S., 0. 02, ss. 1 and 10- 
 
 >' 4tli R. S., c. S4, ss. 1 and <(. 
 
 I .ilh R. S., c. »2, s. 4- 
 
 (Atlidavit toiu-eoiiipiiny liill of sale) — 
 
 .»th R. S., C. 80, s. 4 - 
 
 '"<''( 2ntl R. S., C. 114, S. .1. 1 ///'/, lliat liie only ainoniit reiiiiired to lie 
 
 swoiii to in tlie iitiiilavit is the iietual amount 
 seeiii'ed, not includlni; the nominal eonsideriitioii, 
 
 5th R. S., C. 00, s, 18- 
 
 >'" 1st R. S. C. 11.1 S. 10. '""' tliat the omission of the oceiipalion of the 
 
 deponent from the hody of the iUtidavit is not a 
 
 .1th R. S., r. 01, 8. 1 Statute of Frauds) - 
 
 ■■^1// ll'dSC.I, l-.st.ltiS, III' iillni- ililclUxtH ill 
 
 liimh, or hi niiiiimj (i.ri'Ha or niJur niiniiKj 
 ri'jhts III' pririhiji'S. imt jnU in vritimj and 
 sliiiu'd liij the imrliix I'ridtiii'j ar imtkiiiJi tli>; [ 
 fniiiie, or their ikjihIs thiriiintn hm-i'iillij mdho- ] 
 
 ri.Zed hij vrilillij. shall harr the fiirri' (if IntSf'S i 
 (ir cstati'K at n'ill iinUj. i.rcijit Iraxi-s nut f.rri'rd- i 
 inij the lina nf thrir i/iars fruni liic nuikiinj 
 thereof, v:herenii(in the ri-nt r< .iirri-d ahall | 
 mnoHnt at leant to tn-o-thirds < if the anniial\ 
 raliti' of the lands demised." ', 
 
 I'laintiir, in an action for rent under a parol 
 lease, omitted to give any evidence of the value 
 iif the property. 
 
 H(/d, ]i(r McDonald, ('. .(., I'utcliie, .J., ron- 
 iiirrini), that the point that the lease was had, 
 the rent reserved not having heen proved to be 
 two-thirds the annual value of the i)ro[)erty, 
 was not open to defendant, not having been 
 taken in the Court below. 
 
 fatal defect, tlie atlidavit being made out of 
 
 Court. 
 
 (.''iiiiiii'ihjhaiii V. .l/o/'-c. ■_'(! \. i'^. li., 
 
 IS It. & <;.), 110. 
 
 SV STATITES, NOVA SCOTIA, 
 
 4« Vkt. (18S:{i, c. 11,8. 1- 
 ASSItiNMKNT BILLS OF SALE. 
 
 .ith R. 8., c. 02, s. 10 
 
 V :{rd R. S., c. 110, s. «. 
 
 .1th R. S., c. 04 -(Jlarricd Women's Prop- 
 erty Act, 1884)— 
 
 *' III SBAND AND WIFE. 
 
 .1th R. S., c. 04, s. 10, same as Acts 1884, 
 
 c. 12, 3. 6— 
 
 (Hu.sbandand wife joined in action as to iter 
 property or torts) — 
 
 If' hi, that where the husband was insolvent 
 and absent from the Province, and was joined as 
 
 „ M 1^ II I w -^11 -1 ^ I plaintiff with his wite m an action for injury to 
 
 /'<;• McDoiuild, .J., Miiith, .1., io;('Vt/-;-(//'/, that ' , ., ', 
 
 ., . . , ., ■ c ,' iier separate proi)ertv, an order reiiuiring the 
 
 the omission to prove the lu-oportion of the rent ... .■.,.,. 
 
 reserved to the yearly value of the property 
 was fatal to plaint itf's case. 
 I'oinr V. drijliii, 'JO .V. S. I;.. iS K. ,»e (!.>, ;V_', 
 
 .1th R. S., C. 01, s. 
 
 Ste STATUES, IMPERIAL, 
 
 10 A: 20 Vict. c. 01, s. 3. 
 
 .1th R. 8., C. 01, s. - 
 
 S" 1st R. 8., C. 121, s. 4. 
 
 .1th R. 8., c. 02 ' lOr the Prevention ol' 
 
 Frauds on Creditors by secret Bills of Sale) — 
 
 Ste STATITES. IMPERIAL, 
 
 18 ds 10 Vict., c. 36. 
 
 wife to L'ive secuiity for defendant's costs, or to 
 adil a ii'Xt fiieiid as plaintilf, was bad. 
 
 liohabnt a/, v. J/w^s 7 K. & V,., lli."). 
 
 Ith R. S., c. 04, s. 22 - 
 
 s STATITES, XOVA SCOTIA, 
 
 11 Geo. li (litis c. 6, s. 1. 
 
 .1th R. S., e. 100 
 
 s Ith R. 8., C. 90. 
 
 Ith R. S., c. 100, s. 11- 
 
 Sre STATITES, XOVA SCOTIA, 
 32 Geo. 2 (1158), C. 11, s. 12— 
 3rd R. 8., c. 127, ss. 11 and 12- 
 4th R. 8., c. 00, s. 11. 
 
1527 
 
 STATUTES, NOVA SCOTIA. 
 
 1528 
 
 5tll Rt 8., Ct 100, 8. 12— tl>L' iiiMUllicii'iicy iliil imt loiiio properly lioforo 
 
 •V" 4tll K> Sf, C. 90, S. I'i. ''"^ County dmrt on iippcil, us it nliouM Imvf 
 
 Ix'i'H hroii^lil up on '■( fili/riiri. 
 .Ith K. S., f. 100, S. 10- ''"- ^"'"''' •'•-■''""^l .leffU.lant .shouM Imv. 
 
 v- i^tu a o tin « ';fl ''ii'l J"iU!""''"t liefore tlie MagistnUi'. 
 
 /'< (■ McDoimlil, ( . .1.— I liiit lliL- ( ouiity ( Hurl 
 JudgL' hiiil no jurisdiction to adjuclioiite on tin.' 
 sulijeut luiitter of tlie uiiusi-, an tliu appual viis 
 
 3tli K. 8., €. KM), s. W 
 
 History of this suction 
 
 , ... , 1 . . r .1 troni void i)ro(;ccilini,'s. 
 
 Tiio power of scllni,^ tlic real estate for the ' «> _ 
 
 payment of legacies is apjilicahle to tlio.se cases, 
 
 where it hiw been expressly made cliargeahlc . ,, e „ <«., 
 ... 1 .1 w . .i...iii. i)lll K. 8., c. 10*2, s. a - 
 
 with them, or can lie so gathered from the will ; ' ' 
 
 and the un.levisc.l lands inu.st then tirst he sold '**'" ST.4TITKS, XO>.i SCOTIA, 
 
 ))efore resort can lie had to the devi.sed portion I 42 VICt. (ISIO), C. 2, S. :{. 
 
 of testator's real estate. ' 
 
 In r, EMiaU- ofMrKay, 1 Did., LSI. 3tli K. S., V. 102, s. I - 
 
 S", al.^i>, 2lld K. S., f. 130, 8. 13, ""/"'"• i 
 
 5111 K. 8., C. 100, 88. 20 uiid 31 - 
 
 ■v> 2nd K. 8., c. 130, 88. 13 and IS. 
 
 5tli K. 8., c. 100, 8. 04 - ' 
 
 (Review of taxation in I'loliate Court). 
 
 s PltOK.\TE (01 KT, in. 
 
 I 
 
 5(li K. 8., c. 100, 8.72- 
 
 S" 3rd K. 8., c. 127, s. 70. 
 
 6tli R. S., c. 100, ss. 70 and 84- j 
 
 Sec 4tli R. S., ('. 00, ss. 77 and SI. : 
 
 5tli K. 8., C. 101, 8. 10 
 
 <S'm 2ndK. 8., c. 150,8. 5. 
 
 .nil R. S., c. 101, s. 25 - ! 
 
 See 4111 R. S., f. 112, s. 13. 
 
 dtli K. S., c. 102, 8. 2 - 
 
 (When defendant does not reside in County 
 where summons issued, plaintiff to deposit with 
 Justice a sum eipial to ten cents per mile each 
 way of (lis' aiico between residence of defendant 
 and place )f trial) — 
 
 I'laintiff failed to make sufficient deposit, the 
 .Justice allowed him to make up the deticiency 
 at the trial, went on and gave judgment for 
 plaintiff, defendant making no defence. Defend- { 
 ant appealed, and moved in the County Court on 
 above ground for judgment, which was refused. 
 On the trial on the merits in the County Court, 
 plaintiff obtained judgment. No appeal from 
 this '"as taken, but the .Judge stated a case, on 
 the interlocutory application for the opinion of 
 tlio Court as to the power oi the Justice to 
 permit the defect to be cured at the trial. 
 
 Held, per Weatherbe, J., that the question of 
 
 S" 4tli R. S., ('. 01, s. 11. 
 
 5tli K. 8., f. 102, 8. 13 
 
 V ST.ITITES, XOVA SCOTIA, 
 
 2SVUI. (1S05I, c. 1, s.«. 
 
 5tliK. S.,€. 102, 8.30- 
 
 s> ' 3rd R. 8., C. 12S, s. 27. 
 
 5tli R. S., f. 102. s. 33- 
 
 >" 4tll R. S., c. 01, s. 30. 
 
 ,5tli R. S., ('. 102, s. 34- 
 
 Nt< 4tli R. S., c. 01, 8. 31 - 
 
 5tli R. S., c. 103 (Siinimary Convictions 
 
 and Orders of Justices) — 
 
 This Act docs not apply to the .Slipcmliiiiy 
 Magistrate of the City of Halifa.x. (Questionable 
 wlicliier i)rovisions of Act excluiling tlie iiifor- 
 iiiant from giving evidence in certain cases 
 applies to prosecutions under the I..i(iuor Liceiist! 
 Act of 1S8(). Wlien a cause uiuler that Act is 
 being tried anew before the County Court, the 
 evidence of the informant who has rciioumeil 
 under sec. 'A'2 of c. W.i since tlie trial bolim' 
 should be received. 
 
 (Jnn)i V. Shc/iiaril, '20 X. .S. R., 
 
 (S R. & (i.), 470. 
 
 3tli R. 8., c. 104-(.Iiidi€aturc Act)— 
 
 Hi Id, that, after the pas.sage of the Judicatiile 
 
 Act, the Judge presiding at the trial was hoiiiid 
 
 to give effect to the ecpiitable rights of the parties 
 
 though the cause had been at issue previously. 
 
 McPhiir.wn v. M<:Douald, C R. & (i., •-'4-'. 
 
 5th B. S., c. 104, 8. 20, sub'sccs. 7 and 8- 
 
 Sub-aec. 7. " Uimi miif trial bif ajury, ichere 
 the Court or the presidinij Judys otherKM 
 
I.'i29 STATUTES, NOVA SCOTIA. lo.'JO 
 
 ilirpctt, it ahull mt he lawful for suchjimi toijive .i|h !{• S., f. 101, 0. .\I.\.« H. 2 — 
 
 n nmcrnl rcrdivt, awl if xlmll Iw thv du/i/ of kiu/i Uniieuessiiiy li-ngtli »f i.kM.linj,'s is n mutter 
 
 Jnn/ h, ;/ire a s/ieiinl r> rtlkt if I hi'- Court or /m- „.i,i^.i, ^.,1,, l.i.'utifLtuull.v dealt witli ..n tiixiitioii 
 
 »i(limi Ju(hjf 80 (liriHt ; ami uult'ns t/ie Court or „f ^,„yts. I'k'iis eximndfil at great leiigtii are 
 
 //,(■ iirv^idina Juili/v otlwnrlx, ilirei/s, thv juri/ ^^„^ „„ ^]^.^^ m.,.,,„„t nuiessarily einlianassin-. 
 
 ma;/ i/iir vitlar a (jeuvral or a special verilitt, hut MilJouald v. Clnrb , •_'(• N. S. H., 
 //(('« suh-aec/iun s/iull iiuf aji/ih/to actions of lihel," 
 
 Sw XEW TRIAL, Ml. 
 
 (S K, & (1.), •_>.-)4. 
 
 5th H. S., f. 104, 0. XIX., R. 3- 
 
 .1th R. 8., C. 104, S. 20, Sllb>ser. 8— " A defemlaut iu an action nuni set o{f\ or ^et 
 
 iliidge may iliieet jury to answer (|uesti()iis upfhjl way of countvr-claiiu atjuinst the claiinx of 
 
 cit fact, "(aid oil 'In jiiidiinj of llii Jiiri/ u/Ktii the /)laiutijf\ aui) riijht or claim, whether .inch 
 
 flu qu('<llon>' which fhi ij (tii-^m r, /hi Jiidi/i sh(dl neZ-aJf or couufer-cluiin sound in ilamat/es or not, 
 
 niiir Ihi nrdici." and such set-off or counier-cUunt shall hare the 
 
 '^Oii /hi jindiiKis" means arrordiini to the mi me effect as a cross action, so as to enable the 
 
 liudings. A vercliet canunt Ke enleied ineon- Court to pronounce a find judijment in the mime 
 
 sistent with the findings. action, ho/h on the orii/in/d and on the cross clnun. 
 
 Criiijhiiin V. Sjiiiimi/, ~ H. fc (I,, HCJ, Hut the Court or a Judi/e may, on application of 
 
 I the plaintiff he/hre trial, if in the opinion of the 
 
 5th R. Sm C. 104, S. 43— \ Court or Judije such set-off or counter-chiini 
 
 (I'rnvisinns in case defenee or coimter-ehiim is cannot he conrenientli/ disposal if in the pendiui/ 
 
 licyond tlie jurisdiction of tiie County Cotirl)— iJc^wif, o'" <>ui/ht not to he allowed, refuse per- 
 
 11' Id, tliat the County Court may deal with mission to the defciidun/ /o ariid him.<elf th- renf.'' 
 
 the counter-claim, which, if it were an original j ■>'" A', f: , infra. 
 
 claim, woidd lie lieyond its jurisdiction, to the 
 
 extent of an-iiri riiiij /h /itaiii/ifi claim, but not 5th lt« S., ('. 104, 0. MX., it. 4 — 
 further. ' '^ Krcrji /i/eadiiii/ shnll contain, and contain 
 
 llf/is V. Ci-'ii/Zhoric, 7 It. .V (;., •J.VI. ,^^,/,^_ „ statement in a suinniari/ form of the ma- 
 
 I tei iiil facts on which the piirty pltadinr/ relies for 
 
 5th R. 8., e. 104, 0. IX., K. 8— l /^/^ ^j^^j^^^ ^^ difeme, as the case maij he, hid nut 
 
 '•Where hij nnij Stutute. provisinn is niadc the eildi nee b;/ which the// arc to be prored," .S-c. 
 
 fur sen-ire i>f amj writ nf Kumnion.s, hill, pcti- xi,e case of Miirnuj/on v. Loriiuj, (i (^ 15. 1)., 
 
 /inn, or other pmecss, upon au'i corjionttion, uh), which is authority for the proposition liiat 
 
 Nf i(n;> SDcietij iir fcUiivxhip, nr iin>j hod>i or 1 evidence of seduction cannot lie given in an action 
 
 iniiulier iif jicrsiins, whether cortioriUe or other- • „( hi-cach of (jromise of marria;j;e mdess the 
 
 ii-ise, ererij writ of sumnn.ns ma;/ la: served '«, seduction is alleged in tiu; statement of claim, 
 
 //((■ manner so provided.. (Hhervise. the .srnKe w-as decided upon the Knglish rule which has 
 
 hiiiij lie served on the jirinci/nil ufflcer. nr un the i since been amended Ky inserting the wonls "for 
 
 ill rli or .mcretnrij." /i/x claim or ihf nn ." 
 
 Held, that in the absence of any speciid pro- j /',,■ Ritchie, .T., <lelivering the judgment of 
 vision in the City Charter for sei'viec of i)rocess j the Court, the amendment materially iilters 
 iijion the City of Halifax, this rule would apjily, \ the rule, in my ojiinion confining the facts re- 
 and woidd make sutiicient the service upon the i|iiiicd to be slated to those material to ti\e 
 Mayor of notii/c of action as well as of the writ cause of action or <lefencc, and it would not now 
 (if summons. be neee.ssary to plead the seduction, which is 
 
 O'llrlm v. The Ci/ij of Halifax, 7 R. .t <!., .S!).'? ; not material in that view. 
 
 7 C. L. T., 4;{.".. , l-:,nlirii v. Wood, -JM X. S. H., (S R. iS; V..), 40. 
 
 5lh R. S., C. 104, 0. XIII., R. 8- .5th M. S., f. 104, 0. XIX., K. 14- 
 
 ■S'l' 'ind R. 8., C. 134, S. 144. 1 ••Amj eonditiun precedent, the performance 
 
 j or occurrence of which is intended to be con- 
 
 5lh R. S., C. 104, 0. XVI., Rr. 2 and 10— > tested, shall he distincthj specified in his phad- 
 
 ( Wrong plaintitf'by mistake, and remedy for I imj h;i the plaintiff or defendant (as the case 
 
 iiiiti joiniler ami mis-joinder)— I mail he), and suhject thereto, an averment of 
 
 //•/(/, tiiat Rule "J nmst be read with Rule 10, I </ic performance or occurrence of all condi- 
 
 luid that a party cannot be substituted or added i tions precedent, necessary for the case of the 
 
 iis plaintiff without his consent in writing. plaintiff or defendant, shall be implied in his 
 
 Wnrzhnnj v. ll'ibh, ~ R. .V ({., 414. ipleadinn." 
 
15ni STATUTES, NOVA SCOTIA, 15:^2 
 
 'I'lio pliiiiilitl?^, ill ilirir >i;itfiii(iit cif I'laini, smr.il.s in ilaiMiiu'i'-, .iinl iiiiiy involve liithts ui 
 iillf;,'LMl thai llif ">uiil |iii>|ifily Wii.H iici|iiiivil otli • iiiiitic-t nut in tiic ori^tiriul «iiit, and iIrtc 
 liy the said A. .1. 1>. (tiiu wifo) dining ripvuiliui', (ovr It. 17 faniint aUV'ct ii case wlit'if a Ml! nl 
 olliciwisu than fnun Irt Niiid linsiiand, and In- (•\chaii;;L' i« ii'lit'd mi as a Hct-otV only. Uiiilir 
 liiii;;L'd to liiT nndt.'i- and liy virtut! nt' the Mai- llulc IS, wlii'ii the jilaintitl' ini;ii;ly join.s is.siir, 
 I'ii'cl Wonu'ii's I'lopcrty Act of llS>S4, in her own , he cnn rai.sc tiic! dffi'iiou that the liill haviiiL' 
 right, and whioii she claims to l>c entitled to lieun specially indoised to the i)ank, cmiM 
 luider the said Act." not lie transferred to the defendant excijit 
 
 /'ir .McDoiialil, I'. J. -The defi^ndant was ! liy indorseiiiciit. 
 lioiiiid i«] plead non-perforinance of the condi- ; I'l r McDonalil, ('. .1., and llitchic, >1. — 'llnil 
 tion precedent ri'i|iiiiiii^' the lilin;,' in the lieuis- if ])laintilT wisheil to deny the indorseiiiont, he 
 try of Deeils of a consent in wiitiii},' hy the liiis- should have replied speiially, and that liy nu re- 
 hand, if he wishcil to take advaiitajje of it. ly joining issue he conid not put ilefendanl tn 
 
 /'rr McDonald, .l.-Tlie plaintill'.s .statement jiroof of the indorsenieiit. 
 of claim iniplieil an averment of the peiforni- I /'o/'-i/'/i v. J.uirn iin , ' K, &(i., 14s ; 
 
 ance of the conditions |)recedeiit neces.sary to i 7 ('. L. T., 174. 
 
 maintain her ca:<e, anil the defendant must 
 
 sjiecify distinctly any condition the perform- 1 atll II. S., C. 104, 0. XI.V., Kr. t1 and lU - 
 ance of which he intended to contest. (tieneral denial iiisnllieieiit. Answers t<i lie 
 
 IUiIkiLi V it III. V. ,l/o/'.<i , I direct and full) — 
 
 •J(. X. .s. R., (s l{. ^ (i.), -Jl-J. ; ''>'<''■ AMEXDMEXT, II., II. 
 
 I 
 
 III an action hrought hy plain'.itl' as indorsee ! .5|h it. S., C. 104, 0. XIX., K. SO - 
 
 uyaiiisl .lefendaiit as imhirser of a iiromis.smy ,S;,,, .jp,| |{^ ^^^^ ^.^ ^j^^ g^ 210. 
 
 note, it appeared that the note was made pay- 
 
 nl.le "at the .Merchants' I'.ank, Il,iwke.-I.ury." I ,,„, ^^ s^,^ ^^ ^Q^^ ^^^ jXj^^ ^^^ ^^_ 
 
 'J'liere wa.s no alleiration in the statement of ., , ■ ■ , , ■ if, 
 
 , . ■ 1 , , , , 1 N" aiitlioritv in tliidiie to ti.ice detendant tn 
 
 claim to show that the note was made iiavahle ■ r ' i • i ■ 
 
 , , . , , ', . adoiit iili'a ot L'eneral issue, or otherwise to have 
 
 nt that place or that it was duly presented fori . ,' ' ■ , ■ 
 
 ' , , '■.,■, iudL'inent against him. 
 
 payment there, or that any notice ot dishonor "^ ° ^ cj^,^, nvvyxyc •> 
 
 was }j;ivcn to defendant. 
 
 //- /,/, tdiat in the alisence of such averments | gj,, ^^ ^^^ ^ ^Q^ ^ ^^^^ ,{^ 3 _ 
 
 and jiroof, jilaintitl couhl not recover. i . . 
 
 , , ., ^ 1 .1 1 . rill " ir/'A (I ihfiufii sc/hii'i nil a litiilir In I'nn 
 
 Alio, that iin<ler the present system ot plead- • , . , , 
 
 , . ' 1 f 1 . ' art inn, /he "iiiii of ninmi/ nlln/nl to liari Ih'k 
 int.'. It was not incuiiilieiit upon detendant lo i 
 
 , c . .■ 1 . 1 • .n" 1.. ' /ciKlcnil Diiiif lie hroiii/h/ into Coiir>. 
 
 deny facts essential to plaiiititl s I'lght to recover ,. e 
 
 , It. 11 1 • .1 . . . Where the ohjecl of a tender is to relieve 
 
 uiiles.s such tacts were alleL.'eil in tlic statement , ' 
 
 c , ■ "" I i)ioi)eitv of a lien it will still have thai eflecl 
 
 of claim. I ' ' "^ 
 
 ,, I- ,,■,,■ ,,,,x- ^ 1, ,.. I, t ,. V ,.,., wiihoui payment into Court of the nionev mp 
 
 ])(irliii{i y, (•illii ■■<. "JOX. .s. i;., (s K. ,S: (..),4J.{; ■ •' 
 
 !» V. L. T., I-JO. 
 
 tendered. 
 
 ll'/7/;.< V. Si-nl, -JO X. .S. 1!., (S R. & (;.), 44il. 
 
 sth R. s., c. 104, 0. XIX., R. II- g„, ,j^ ^,^ j.. ^Q^^ y. xm., r. « 
 
 •Jt shiiU nut III' siQJiriiiit/iir ihfiuihnit. in (Payment of money into Court with defence 
 his slatPinent of ilefenn-, to ilinnj ijinii'milij thr ' dcnyini,' liahility) — 
 
 rirrnimh- ulhujcil Inj thr uttitrnifiit nf rliiini. ur To an action for freight alleged to lie due fn|- 
 for a jiluintiff in his rijihl to ilcn'i (iincrnUil the cariiage of goods defendant pleailed twe 
 thr ijrnnnds aUeriml in <i ilr/mrr /<;/ mii/ of ■. pleas, the one alleging tender liefore acti'/ii 
 cnnulrr-chiim, hnl rarh jiort'i ninst ilriil sjirri- hronght, ami the other payment into Court in 
 fii-iillij vith enrh iillnjatiun offurt of n-hich hi' satisfaction of the [ilainlitl's claim. 
 duis not admit the truth, except damnr/es." \ Plaintiff having accepted the money paid iutu 
 
 /'ir McDonald, J., Smith, J., (■«/»■»*•;•/»;/.— ' Court in full satisfaction of the claim in ivspict 
 R. :i of Order \I.\. distinguishes hetween a of which it was paid, in accordance with Order 
 set-off and a counter-claim, and if it did not, xxii. Rule (>, defendant contended that the plea of 
 there can he no douht that the word " counter- temler involved the costs of the action up to tlie 
 claim" means much more than "set-oft'." time of payment into Court, and left an iasiie 
 
 R. 17 does not, like R. .S, refer to a set-otfnt still outstanding which he was entitled to liiive 
 all, hut counter-claim only, which, unlike a tried, or to have the action dismissed with costs, 
 set-off, may be set up as a defence, though it Jlrlil, that the acceptance of the money paiil 
 
i:)83 
 
 STATUTES, NOVA SCOTIA. 
 
 1534 
 
 iiiti) rourt in full satisfiiction of the plaiiitifr'n 
 iliiiiii wiiM II (k'ti'i'iiiination of the ivctioii, k-iiviiig 
 only tlie (jucHtioii iif L'oHts or tt-mlui' to l>e (lis- 
 pKScd (if liy the .ludgu. 
 
 Kinthiu V. AV//S 'JO N. S. R,, (S R. <& ("..), '.'.SS ; 
 
 XV. \.. T., :«»!>. 
 
 r>th R. S., c. 104, 0. XXVII., It. 14- 
 
 " Ain/jwlijmmt hy de/uulf, vh:th<r iiiidir fhii 
 Onli r or iiiiil)'r\ ain/ o>hfr of th(''<( Jhilfx, may 
 III' .11 1 nslile hy Ihi Court or a Jtidije upon xurh 
 /' riiii (ts In rns/.s or olheririn «< -iiii'li Conri or 
 
 Jii'li/e mm/ Ihiid' lil." 
 
 Si; JIDGMEXT. 
 
 5th It. S., c. 104, 0. XXV III.. It. 1- 
 
 " 77i( Cmirt or a Jiuhje maij, nl any tlrnji of 
 l/ii iirnciciHiiijii, a/loir (llli'r /larly to ultir or 
 'lull ml hin liidoriemeiit or iiliadiin/s in siirli man- 
 III r (tnil OH .iwli lf:i-m>i as may ht jiiil ; and all 
 xiirh iimi'ndmi nil ihall In mridf (is may In iierps- 
 "(try /or the /mr/ioie of dilerwiiiiwi the real 
 iiue-itionx in vontrori riy Inlirein the jurtiii." 
 
 Sec AMEXDMEXT. 
 
 -.til R. 8., 0. 104, 0. XXVIII., R. 12- 
 
 (Anieiulineiit ut iiiiy stage) — 
 
 See AMEXDMEXT. 
 
 oth R. S., c. 104, 0. XXVIII., R. 14- 
 
 '• In ap/imli liro,ii/h' In/ore ii Ihi Court "hall 
 hiiri nil Ihi' jioin rs and duties in rcj'i renm to the 
 iinii iidmi nl of jiroi'eidimjs irhirh the Court hni 
 ill niiisi'! ori(jiH(itinii Ihi rein." 
 
 On appeal from the jiiilgiuent of the County 
 Court refusing to set aside a default where tlie 
 uiit liad not been personally served, the Court, 
 under Rule 14, Order XXVIII., amended the 
 rule iiiii in tlie Court below, by adding a ground 
 setting out that defendant had a defence on the 
 iiiei its, and had satisfactorily accounted for hi.s 
 iinnappearunce, and made .ibsolule the rule on 
 tiM'msof a hon 1 being given to the County Court 
 .ludge to respond final judgment, defendant to 
 I);iV costs of argument and appeal, otherwise 
 appeal to be dismissed. 
 
 Ilayden v. McXutt, 5 R. & (i., 541. 
 
 5tli:il. S., C. 104, 0. XXX., K. 1- 
 
 ( Interrogatories —Order for interrogatories 
 and discovery on oath before defence) — 
 
 Hi'ld, that the Judge had a discretionary 
 p^iwer to make such an order. 
 
 Commercial Hank of' Windsor v. lici-l-u-ith. 
 
 7 R. \ <;.. MT. 
 
 5111 R. S., c. 101, 0. XXX., R. 10- 
 
 '• If tlif jnirtii friDii ii'hiiiii ili.'triiri r>i of mill 
 kind ur in.iiii'riiiin i.i .'muiiht nliji'fts to fheiKdiie. 
 nr 11)11/ jiiirt thi'riiif. Ihr Cinirt nr n Judi/r nuni, 
 if mttiKjlid that Ihr riijhl til Ihr dinrnnril nr in- 
 sjii'i'tiiiii niiiiijht di'iii'nih nil till' ili'tirinini'tiiiit 
 of mil/ i.isin nr ijinntiuu in di.i/iiili' in thr riiiim 
 ur hiottir, nr llml fnr ninj nthi r nnsnii it i.s dr- 
 airnldi' tlint iin>j ixmii' nr iiinntinn in disi'iilr in 
 the. niiisi' nr imdtir nhnidd hr diti'rniinid hifnre 
 di'i'idinii njinn thr riijht In thr dixeorery nr in- 
 uprrtiun, order that nueh insnr or i/uestinn Ac 
 drtrrininrd lirM. mid rrsi'rre the qumtinn us tn 
 
 thr di^rnn ril nr insjirrtinn ." 
 
 Ihlii, Weatherbe, .1., iliHsiuiinij, that this 
 order leaves it entiiely in the discretion of tlie 
 Judge to whom a]tpli(atioii is made to "order 
 that such issue or (luestion be determined lirsi, 
 and reserve the (juestion as to discovery or in- 
 spection." 
 
 Jenkins it al. v. Tu/i/nr, 7 R. it ('>., oOiJ. 
 
 5th R. S., C. 101, 0. XXXVI., R. 6- 
 
 (Atlidavits sworn aliroad) — 
 
 //(/'/, that tlie atlidavit for appeal from the 
 Commissioner of Mines, mider ."nh R. S., c. 7, s, 
 8"2, was not such an atlidavit as c(juld be sworn 
 abroad under .■)th R. S., c. 104, 0. XXXVI., R. 
 tj, or under ."itii R. .S., e. 107, a. "). 
 
 lie Hedley, 20 N. .S. R., (S R. & (i.), 1,30. 
 
 5th R. S., c. 104, 0. XXXVI., R. 18- 
 
 iSee 4th R. S., C. »«, s. 15. 
 
 5th R. 8., c. 104, 0. XXXVII., R. 0- 
 
 ".l ni ir trial -^hiill not hi i/ranlul on tht. ijround 
 ofmisdirertioii or of thr im/iro/itr admission or 
 rijirtion of irithnri , or herait-sr the rerdirt of tin 
 jury ii-ns not tahn upon a qinstiou n-hirh the 
 jndi/e at the trial ints nni nsk'd to Intn to Ihi in ; 
 unliss, III thr o/iiiiii)u ofthi Court to which a/ii'H- 
 eation is made, soiin sidisluntini injury or mis- 
 rarriui/r lias hnn Ihirihy orrnsionrd iii tin trial," 
 it''. 
 
 Tlie Judge, at the trial, was not reijuested to 
 put any <iuestion to tlie juiy, although he a^ked 
 plaintiff's counsel to suggest any (piestion for 
 the jury. The Judge thereupon discharged the 
 jurj', as there was no matter of fact for them, 
 and ordered judgmei.t to lie entered for defend- 
 ant. Motion for new trial dismissed. 
 
 Fairhanks v. Cn iiihton, '20 N. S. R., 
 
 (SR. &»;.), 8S. 
 
 Si:': practice, 146- 
 XEW TRIAL. 
 
1535 
 
 STATUTES, NOVA SCOTIA. 
 
 In8(i 
 
 Sth R. S., C. 104, 0. XXXVIII., K. 4- 
 
 (Motion for jiKl^'iiicnt wlierc juilgiiK'iit wioiig- 
 ly entered on tiiidinga) — 
 
 Creiijliloii V. Siiiiniii/, 7 H. & (1., p. UCi. 
 
 .->lh K. S., c. 104, 0. XXXYIII., K. 10- 
 
 (i'owers of I'ourt on motion for juilgnient) — 
 Cruijhlnti V, S/iiiiin!/, " '^' >t *'m !'■ I"*'' 
 
 .Kh l{. N.,c. tU4,0. XLVI., it. II 
 
 swand K. S., c. 141,8. 'iiJ. 
 
 5th K. S., c. 104, 0. XliVI., K. i:> 
 
 S<'c 4tli R. S., ('. 01, M. Is. 
 
 .'illl R. S., c. 104, 0. XL., it. '2'i 
 
 iiii n. s., c. 101, 0. XliVI., n. lo 
 
 (KfFi'L't of simniinhH for iigcnl of iilisi'iil or iili- 
 Huondiiij,' di'lilor) — 
 
 Almost tliii Slime uf 4tii Rev. .StiitH., c. !>7. s 
 111 oertiiin nises tlie piirty aliegiiij; iiimself to |,,_ ^.^^.^,^^^ j,,,^^ .. i,„,.l„,li„^, ,.h„.ses in action " 
 \<v ii.titled to execution iimy iijiply to tlie Court i,,^^.,.,^,,! ,if„,,. u ,,,„trol." Delendaiil liad iiri.lc 
 
 un assi^'iimeiit to H. McK. for tlie lieiiclii 
 of eredilors, iiuliidiiij; a delil due I'yC IlinH. 
 Tlie rule does not eiiuMe an assi^jnee of a judg- . _.^j ,1,^, ,i„„, ,,f ,|h, service of the summons M, K. 
 
 or .ludge for leave to issue execution accord- ' 
 iiiu'ly)- 
 
 meiit to ssue execution in liis own name. 
 
 ./(W v. MrXiill it (tl., '.'(» N. S. R., 
 
 luiil no money of defemlant's in his hands, liiii 
 
 two days afterwards ( '. Ilros. ]iaiil the amouiil 
 
 (S U. & (;.), lAft. ^ ,|,„, |,y ,|„,,„ _\ii „f ,ij.fei„|ai,t's creditors win, 
 
 liail executed the assignmeut hail (ircvioiisly 
 
 lieen ]iaid in full. 
 
 Sic 4th H. S., !•. 04, S. 1S8. , U<l<l, that the del>t due hy ( '. Bros, to de- 
 
 i feiiilant was in McK.'s hands, covered hy tin' 
 I words of the Act, "goods and credits of ihc 
 
 iibHcnt or absconding person then in his iinsses- 
 I aion or under his contrcd." 
 I Jtohirtson «/ <il. v. William'*, (i H. & (i., ;iii;i, 
 
 :>th R. S., c. 104, 0. XL., R. *i:t 
 
 .'ilh R. S., c. 104, 0. XL., R. :{2 
 
 Sit 2imI It. S., c. 134, s. 121. 
 
 .Ilh R. S., f. 104, 0. XL., R. 40- 
 
 Si-r 1st R. S., c. 134, s. 102. 
 
 .->lh R. S., c. 104, 0. XLIV., R. 1 - 
 
 (Arrest of defendant aliout to leave the Pro- 
 vince) — 
 
 'I'lie wor<ls "in any action in which the de- 
 fendant is now liable to arrest," embrace the 
 whole I'uthority in relation thereto conferred 
 bv 4tli Rev. .Stats., c. 94, 8. .SI. 
 
 .5th R. S., 0. 104, 0. XIVI., R. 17 
 
 sVc 1st R. S., c. 141, s. I(i. 
 
 "ith R. S., c. 104, 0. XLVI., R. 18- 
 
 (Agent or trustee entitled to discharge ainl 
 costs in certain eases) — 
 
 III III, that even if a .ludge has power to (lis- 
 eliarge an agent who has admitted assets, wliirli 
 AVrA/.// V. (,'o,7/„/^:R. &(i., .118. i, ,i„„„tf„|, such discharge shouhl m.t he 
 
 granted until plaintiff has obtained judgment, 
 Aiiilirsoi, v. /'(irkrr, 7 K. & <i., -'tJ. 
 
 .■»th R. S., c. 104, 0. XLV.- 
 
 >ei 2iul R. S., €. 134, ss. HI 173. 
 
 .•)Ih R. S., c. 104, 0. XLV., R. 1 - 
 
 SVe 4th R. S., ('. 04, s. 320. 
 
 .->!h R.S.,c. 104, 0. XLVI.- j 
 
 .Ste 1st R. S., c. 141 - 
 
 ST.\TITES, NOVA StOTI.i, 
 1 (ieo. 3 (1761), C. 8. 
 
 5th R. S., c. 104, 0. XLVII., R. 1 - 
 
 >" 4f|, K. s., c. 07, s. 2«. 
 
 3th R. S., c. 104, 0. LI., Kr. I and .1- 
 
 See 3rd it. S., i*. 124, ss. 31 and .l.i. 
 
 .3th R. S., c. 104, 0. III., R. 3- 
 
 (Len^ th of service of notice of motion) — 
 The notice of motion for an order setting 
 aside a replevin order was served at G..SO, p. in., 
 
 See 4th K. !S., C. 97, &. 5. f''''%' f"»' ^''^ following Tuesday. An appeal 
 
 from the order made on such notice was allowed. 
 McDonald v. McKeuzie, 20 N. S. R., 
 
 (8R. Scii.),'2S-2; 
 8C. L. T.,4r)0. 
 
 5lh R. S., e. 104, 0. XLVI., R. 4 
 
 3th R. !S., c. 104, 0. XLVI., R. 6- 
 
 tSeclstR. H., c. 141, 8. 8. 
 
i:..'{7 STATUTES, NOVA SCOTIA. lo.'ls 
 
 rtth n. s., c. 104, 0. MX.. It. II I •"»<•« "• ^^ *'• 1"»' »*• « 
 
 >- STATUES, NOVA S<OTIA, ^" STATI TES, >OVA SCOTIA. 
 
 I.-. Vht. < iHS'ii, «•. 2, s. 10. >=» VUt. ( iHHOi. ♦'. '2, s. S. 
 
 .ilii i{. S.. c. 101,0. lA., I{. 2 •'ith l{. S., ('. lO.i, s. 17 iCoiinly Court 
 
 Si'ivicf (i.;i(i |i. 111., Friiliiy, only comiis I'loiii "''''' 
 
 Mtii. III. .Siiliinliiy. >S'ii (). \Al,, K. .">. I " Siilijici lo /li' i .t-iyp/ions in fh' Itt^t iDunilinif 
 
 M<l)iiii((lil V. MfKni/.li ,'H)'S. .S. K., \tevtioii tin Ctiiiiiij/ Court iIkiI/ Iihii ori'ihin/ Jii- 
 
 (S K. 1% (i.), '2H'2. ' rimlirtinii lual Imlil /i/hih in nil iirtimiH i x run- 
 
 \lrwtii ir/ti II tin ill lit (If iliiiiiidji iliiii not ixiiiil 
 
 .'•III It. S., C. lot, 0. L\'., It. S -- .''■""■ )"ii"'i"' <l"l/(ir'<, rtiul ill mil (if ihlil irlv vi 
 
 Sir STATl TES, NOVA StOTIA, 
 
 it ii not li 11 tlinii tii; nil/ ilntlnn, iiml in nil (itlii r 
 III t mill irlii n till 11(1111(11/1 y iliiiiin il ilii nut i jn • il 
 
 to Vlft. (1S.MI, f. 4, s. '.'00. '"■" /"'/"//•"/ ilulhu-i." 
 
 I'liiiiititr ciiiiinpt, liy jniiiinj,' ii L'liiini of .•*|(l 
 
 •ttll It. S., c. 104, 0. Ii\T. (T. Itli It. S., ,. ,, ,. , ,, . ,*^.. ' , 
 
 „.. ^'l\|' tlif ( ouiily ( iiiiri iiiiiMlu'tiiPii iis to tlic 
 
 (!. i»4, a. 3ao ,. 
 
 tollllfl'. 
 
 •',1)/// (diKihiti (II i,/niiiiiil, III/ irritini/ iimli r ||v///., y^ Simt, •_>() X. S. I!.. (S I!, .^c (i.), -Mil. 
 //,. IkiwI (iJ tin (tiil,/,ior {nut ji,ii;iorlliiii lo he \ S, i ViltUUIHrU%\ •> 
 
 /.// ii-ni/ of clmri/i onli/), of mn/ dilit or otlnri i lUfiiiiiiiiu.i, -. 
 
 Iii/dl chosi ill action, of irliirli i .r/irni iiotin in 
 
 ii-riliinj "hall linn In in i/iren to tin ih htnr, trm- ''^1' '*• ^^ ^'» '**•»» ***'• 24 I"*! 'i.» - 
 fii, or other /nrion from n-hom thi asiiijiior l>y s. 24 a ik'fciui' as tn jiirisdiciiiin nmst lir 
 irinild hdi'i Ik (11 (iititliil to rii'iiri (ir rlidiii nirh Jileiuli'il. 
 
 ill III or rliofi in itrlion, shall In and lie dnnnil •'^. -•">. " /' "" ■""/' dr/'mn- In' /ilmilid, tin 
 Id htiri Inoi (ffictiial in Inn- {niliji rt to all iijiii- Judi/i ihall jnrniil tin iiliiinlijl' lo reilnri hii 
 till irhirli iroiild lidrc In in i ntitlcd lo firiorlti/ clulni to an amoiiiil n-ithin tin jiiriidirlion of tin- 
 on r thr rli/ht of the anii/ini, if thli ridi- had Court, and Ihi- raim shall tin n ii/ion jiromd; 
 not III I II ninili), lo pass and traiisfr the ln/al and he may ijirt jiidi/ini nt for tin amonni firori n, 
 rii/hf to siirh dilit or rhnsi in art ion from the dati al'hoin/h it In lielon- tin lit;/ dollars" 
 of sin'h •lotlri, and all lii/al and oihi r n innlli s < /'< »' .Mi.'l)oiiiil(l uiid Ititiliiu, .1.1., that, iiflcr 
 for t hi sann, and Ihi /loin r to i/in: a i/ood dis- : the tiling of a pioa, ohjeoting to tiio cinniti'i- 
 ihari/e for thi nimi , irithoiil tin ronnirrenre. of ohiini a.s lieyoml thi^ jurisiliction of tlii' C'oiiil, 
 thi assii/nor. " — {hu\). .lud. Act, LST.S, soc. '_'■'). tlio County Comt .liidgu lia.s no jiirisilictioii to 
 .siih-seu. 6.) iinit'iid it, liy ifdiRiiij,' it lo an itniount within 
 
 An iissignci', iindi'i' tiiis oi-dcr, cannot revive tlie jurisdiclion nf the Court, tiie County Court 
 a jtiilgnient of liis assignor in his own name. i Act, ')th R. .*>., c. lO.'i, s. •_',"), (inly pei-Miitting 
 
 Jost V. MiXi ill it al., "JO X. ,S, K., : siuh aniendinent lo lie made in tiie aliseiici' of a 
 
 (S H, fc (i.), I.")!), . plea to the jmisdielion. 
 
 /iatis V. Craythorin, 7 1!. .t (!., -.'.'lO. 
 
 Sue. STATUTES, NOVA SCOTIA, 
 
 18 Vict. (1S5.5), ('. '2», 8. 48. 
 
 •itli K. S., r. 10.1, s. 43 -(Procci'dinKS In 
 
 _.. „ ,_, J... , ,, ...„ case of overholdinp — 
 
 5th It. s., c. 104, Appendix n, p. 1143- „,^,^,.. ^^^ „„, ^.^^^ ., ^^, . ^., 
 
 (Certiticiite of .Judge for costs in ceitain '|-|,^. lUKdavit on which the application was 
 cases) intended to be made was served separately fioin 
 
 In an action for lil.el, the jury found a ver- ' ti^. nr.tice, although l.oth were served in due 
 diet in favor of the plaintiff for. s.-. damages, and ti,„e. The Statute lia.l the words, "with the 
 tlie presiding .Judge thereupon gave a certificate notice." 
 
 that the libel complained of was wilful an.l j //eW, ,.,u- McDon.ald, C. .J., and Thompson, . I., 
 malicious, so as to entitle the plaintiff to costs. • t„at the service need not be concurrent, as 
 
 //(/'/, on appeal, that as the evidence clearly "witii" meant "also '" 
 showed malice, the certificate was properly j^^^ ^,,,. Weatherbe, Rigby and Thompson, 
 
 ''''■'"• Bar.s V. Wallace, '20 N. ,S. R., ! fJ- /'"^t^he irregularity, if any. was waived 
 
 /t) n t. II \ rcM "y ^"^ defendant readnig an arndavit in answer 
 (8 K. ct (>.), xkH. \ . ., , 
 
 I to tlie one so served. 
 
 See 1st R. S., C. 134, S. 63. i Smith v. Smith, 5 R. & <;., 42. 
 
ISMO 
 
 STATrTKS, NOVA SCOTIA. 
 
 1J4U 
 
 r>ih It. s., V. io.'>, M. r»*i. 55, and 5(1 ~ 
 ,sv, STATTKS, >OVA srOTIA, 
 4:t VIcl. ilHHO, <'. 'itNM. 51, Ac. 
 
 51 h K. S., r. 105, M. 01 - 
 
 //'/'/, tliiit liii M|i|i(';il lirs III I he Siiprcinu 
 ('iiiirt fiiimllH' (iiiiiity Cuiiil in (mii"* luisiiig 
 lllldfl' (lie Ciuiiiilii 'rflil|H'riilli'i' Ai't nf |S7S, iiH 
 iioiiii wiiH cxproHMly givfii Ky tin' Art, «liii;li 
 cri'iiicil tlif otrcnci' iiiid ^'iivf llif m|i|ii'mI Id the 
 Cciiiiity ('(iiiit, iililininili tilt' iiliovc sfctioii j,'ivt's 
 u liitifiiil a|)]icil til till' Sii)iii'iiii' ('(Uirt. 
 
 Mrl),wn/>l V. MrCni^h, ■". 1{. & <i., 1 i 
 V'""( V. 11'.-//;, 7 H. * (i., '-'■». 
 
 5th It. S.,r. 105, M. 1N>- 
 
 51 h R. N., I'. 107, N. 
 
 >" 4lll II. S., c. U«l, N. ni. 
 
 5lh l{. S., f. 107, h. H 
 
 •V' ' itii It. s., €. 00, N. a:{. 
 
 5tli l(. S., c. 107, M. |;( 
 
 >' STATITKS, XOVA SKITIA, 
 
 IH Viet. (lH55i, ('. 0, A. '20. 
 
 5lli K. S., f. 107, n. 10 
 
 A" 4(ll K. M., c. 00, NH. :<0 niHl 41. 
 
 5tlllt. S., c. (Otf- 
 
 (•luilgu, •hlHticuM of tile I'l'iici', i)f pi'i'siiii nil 
 jiowcicil liy law t" i'\iMi'isi' jiiiliiiiil fiiiiiti(iii>, 
 
 /hi Juiliii mm/ iirtiii' 'in ii/ii'iii/ an siir/i , 
 
 . ' , ,11, • '"''"K latt'liiiyc'iK, &o., ii"t (li'^iiiiidllli'il tluiii 
 
 tirnit (n to sininlii or iilhi firim , at h< siinll sic iil , 
 
 ■ , . , ■ , ■ ' , iK-'t""),') — 
 
 liiioii ail'/ iiKitfi r fri'il or ar'iii"/ /;■/!</■' Iiiiii, al- \ ^ n .i ^ •!• .• i . • i i 
 
 . . . ... '. . . \illhlr, that thlM st'iJtliill (llH'h lliit llli'lllilt 
 
 /lioii'/li Ihi, aiiioiiiif ill ilit/iiiii: 111(11/ III li.ii than', . 
 
 .■.,,.....»,..•; I .J 1 1 II I . II I .. J 
 
 j'orti/ iloUari ; ami in iiirh riiKi' thi iiintti r »hall lie 
 ifisliiirth) utaliil III/ him for Ihi ojiiiiloii of' the 
 Court of Aji/iinl ; ami thi' (i/i/iia/ shall hi' roil- 
 ihirtiil onthi- saiiifi /iriiirljili s IIS hi n In roiititiiiffl." 
 
 Ill a case wlifte the aiiimiiit in dispute waft 
 less than .'*40 the .liid),'e lielnw eeititieil to the I 
 ('c)iiit tile paiR'is and the evidence taken hefol'e 
 liini and .submitted the ijiieMtion whether upon 
 the evidence so sent up. the plaiiititr was en- 
 titled to I'ecovtif aj.'ainst the defendant. 
 
 Ifilil, that 111) case hud lieen stated fur the 
 opiniiiii of the ('i)urt. 
 
 Ill rtnun v. J/crriiiiaii, "Jd X. S. H., 
 (H K. .V <;.), (W. 
 
 Case stated under section .sent liark to he 
 .anieiided. 
 
 /lirtraiii v. /{i rrimiiii, 7 It. \' *'•.. 'J4ti. 
 
 See STATUES, \OVA StOTIA, 
 
 43 Vict. (ISHO), c. 2, s. 107. 
 
 5th It. S., c. 100. ss. 15 and 54- 
 
 >" l8t It. S., c. 1»0, ss. 7 and 31. 
 
 5ih It. S., c. too, s. 30- I 
 
 sw- 4th R. 8., c. 02, 8. 37. 
 
 5th R. S., c. 107, s. 3 - 
 
 Si'i' 3rd R. S., c. 135, s. 28. 
 
 5th It. N., c. 107, s. 5- 
 
 (.Mhdavits, kc, sworn, &c., aliroad) — 
 
 SVe 5th R. S., c. 104, 0. XXXVI., R. «. 
 
 Kliii/ V. 77i« Mnniriiinlitij of Kiii'jt, 
 
 7 H. &<;.,t)(S, 
 5lhR. S.,c. 112- 
 Sir lilMITATIOXS OF ACTIONS AMI SlITS. 
 
 olh R. S., c. 11-', s. 12 - 
 
 iSve 4th R. S., c. 100, N. 13. 
 
 .)th it. S., c. 112, s. 27- 
 
 Si'e 4th R. S., c. too, s. 2S. 
 
 5th R. S., c. 113, 8. 4 - 
 
 Si-e STATITES, XOVA SCOTIA, 
 
 32 ilco. 2, c. II, 8. 0. 
 
 5th R. S., c. 115, s. 11- 
 
 sve 3rd It. S., c. 140, s. 11. 
 
 5th R. S., c. 115, s. 22- 
 
 St' 4th R. S., c. 100, s. 22. 
 
 5th It. S., c.ll 7,8.3 - 
 
 .S(. 4th R. S., c. 00, 8. 3. 
 
 5th R. s., c. IIS - (Relief of Indigent 
 Debtors)— 
 
 iSee INSOLVENCY- 
 STATUTES, NOVA SCOTIA, 
 3 1-4 Cieo. 3 (1703), c. 5. 
 
 5th R. S., c. 107, 8. 5' 
 
 5th R. S., c. 118,8. 18- 
 
 " Whem aiii/ /iirsoii shall lit: ilischari/iil iimh r 
 tht jirurisioiis of this chapter, any propirty oinii il 
 hy him at the time of the judi/mfiit, or snhti ■ 
 Sve 4th R. S., C. Ott, 8. 30. ! qneiitly acquired, ami not in the posnensioii of (i 
 
i.Hi sri5F;rv. 
 
 Ilium tlih liiilili r, ir'iihitiil iiiilii-i, mnij ni ri ffhi'li ^i *i|h It. Nt, Ci 145 ^ 
 
 III li riiil ii/iiiii foi' l/li til 1)1, iliiilur I J'l rill lull imitil 
 
 nil I III inmi' jiiilijiiti III." 
 
 'I'lui iiiitliority tliurii givi'ii In Irvy ii|ii>ii |nii|i- 
 
 city tlifli (iwiicd <il' milpscijUi'Mtly iiri|iiiii'(l liy ' 
 till' ili'litiir', is I'li'iirly imt apiilicalilc tn ii ciisc of : 
 Miliiiilary <liMi'hiir>;i' liy tlu' |iliiintitr, iiml il 
 
 Ulllllll MI'CIII tllllt, t'VCll llllllcl' till' Ml'Ctinll, ]ll'll|l' 
 
 I'lty ill the |i()sH('MMii(ii iif a Imim jlih liolili'i', 
 witliHiit imtict', coiilil lint III' hn-ji'd ii|i<iii. 
 t'ln^ir V, Jiiikiiii, •-•(! N. S. I!,, (M I!. .V (I.), »!»», 
 
 V" »rrt K. H..r. ll.'i. 
 
 r>||l K. Sm c. I'2'*. s. I 
 
 Sir STATITKS. >0V\ srOTFA, 
 
 3lli R. M., t'. 1>2:>, s. 1 1 - 
 
 > ' 4lll R. S.. t'. lOi, s. \. 
 
 5th R. M., c. I'ill 
 
 Sir 4||i it. S., c. I0.>. 
 
 ''"' "• '*•'<'• "^' «• '-'^ - .-,11, U.S., A DiM'iiilIx A . p. '2 1 I or offNin's 
 
 An upiical fi'iiin a (IucIhIdii nf ('iJimiiiMHioiicrs, mj,ji„^t {t^li,,,„i,i._. 
 ii'fii.'-iiii,' to clisihai'Ki' an iii-nlviiit di'litcir, was | iSVc AIM'KAL. V.. --. 
 
 takili to till' Court of Si'.MMiolls nll tliL' }^loUlul 
 
 that tli.Ti' was no CMinty Court Judg. in tl.o .j„ „^ ^^^ A|.|M'II(IIX A. \U :W. S. I 
 ( oiintv wlii'ii' the lii'litor was contiiii'd. I hi' . .. , . . • 
 
 , . ' 1 t 1 . I .1 I >" '2ihI It. N.« 1'. S'2, ». 4. 
 
 .Instills liiiMiig ri'fiisi'd to liiiir Uw appeal on 
 the iK'roiiiiil timt tlivy liad no Jiirisdii'tion, andiin 
 onli'i' having lii't'ii applied for to lonijii'l tlii'in 
 to do so, 
 
 llilil, that till' order must lie made alisoliite, 
 the appeal having lieun pi'(i|ierly taken. 
 
 Ill this ciiHe tlio pi'oeesH iMHUud out of .hixtices 
 Court. 
 
 (^hiiiifi, whether, when the process issued out 
 of thu Siipreine or ("onnty Court, the a;ipeal 
 would not, under similar eircumstanees to tlioso 
 ahove, lie to the Special Se.ssioiis, 
 
 Arm^lrtiiiij v. Tn/mi/, 7 M- fi *•., H). 
 
 STAYING PIUKEEIUNOS 
 •s PBAtTKE. 
 
 5tll K. S., c. 1'23 
 
 S<'i' 4lll it. S.» c. 103. 
 
 SIPIIEME (OIHT OF (AXADA- 
 
 A|)peals to— 
 
 S AITEAL, \ 
 
 olli It. S., f. 1>24,!4. U - 
 
 <Vi :ird U. S., c. 113, hh. 5 und 10. 
 
 ottill. S., 0.124,8.21- 
 
 "A jiiirrhn'or (il 67(< >•///'"< «//( of n til esl/ile,' 
 solil inidrr fill ixirii/ioii 'is.innl (iiiil jnilijini lit ilii/i/ 
 nrnnlid for om: year, ami hariini oh/aiiinl a dud I 
 from the Shrriff of said pro/ti rti/, viinj f>/'l>^!/ to 
 II ./iiililH of till Court out of irllirh tin- ixiriitiou ^ 
 i-isiiiil, for an ordrr iiix't to xhoir caiixf trhi/ a 
 irrit of poxxptxion shall not ixxne to put Iht xaid 
 jiiirrhaxir in poxxpsxion." j 
 
 The Court of Chancery will not grant to the 
 l)urclia.ser under foreclosure a writ of assist- 
 ance to turn f)ul a party who has been long in 
 jxissessinn of the premi.ses, and claims title hy 
 possession, and who has not been made defend- 
 a:it in the foreclosure suit, hut will remit the 
 purchaser to his action of ejectment at common 
 hiw. 
 
 IVoodf.n V. Jiiixhen, James, 4'J9. ' 
 
 SIKETY- 
 
 1. Ball on capias CoiHlltion In bund - 
 
 Discharge of suretv — 
 
 Vm BAIL, l< 
 
 2. Contract of snrclj ship - 
 
 I. HILLS AND XOIKS - 
 
 See BILLS OF E.VCHANOE AM) I'RO- 
 
 MISSOBY NOTES. 
 
 n. noxD- 
 
 IIL (iUARAXTKK- 
 
 See BOND. 
 See CONTRACT. 
 
 3. Contribution -Surety held not liable 
 
 for contriliution where there was no liability 
 shown on wliicli money shrmld Imve been paid 
 by the co-surety. 
 
 Cariifi/ V. PhaUn, 4 R. k d., V2(i. 
 
I .u:! 
 
 TKNANT. 
 
 i:>H 
 
 I. licniurrcr to (Icclarnllon by obllxrr 
 
 on Imriil iinxl^'linl In I'liHIII'l't JCM, M'liii lliiil |iiliil 
 <li'fi'lli|iillt'H lU'lit, iiM'irilluil. 
 
 AV'-A '(«'/' HdiiL' V, Iti'oifii, 'J K, \ (',, ;i;t.'>. I 
 S. DlNrhnrffr and relenxc of Hiirrly by 
 
 ileed of iiitiii|riunent 
 
 Sn AHSIliNMENT, v.. .. 
 
 0. liability nf Niirrty II. L. and dcfrnd* 
 
 ant, lifiii^' Imlcliticl in \', in llii' «uin of l''.','J(K», 
 ilcfcniliitit pivi! iKiti'H fill' liJM mIiiik', wliicli lie 
 paiit, l(. I.. iiHHiiiiit'il thu ii.iyiiii'iit III' I III' iidii-r 
 liiilf, mill itHNJ),' It'll tn \', a niiii'tgitj^)! nl ii |>i'ii|i- 
 tity on uliicli 111' liiul liiiil (»iii livtwufii l'.'{,(i(Kl 
 ami 1'4,<NI0. In t'lii'tlu'i' Ncoiirity, ii liniiil iliitcil 
 .SOtli iFiiiii', IH44, wuH jiivcii III \'., I'xi'i'iitiil )iy 
 H. I., iiini ilcfi'iiiliint, in ilic pciml miiiii uf 
 t''.',(MKi. II. I,, ilifil ill IN.M, III) piiyiiii'iit having; 
 lii'iii inaili' I'iiliir of priiii'lpitl or iiitt'i'cNt, Imt 
 U'aviiij,' llir piopfiiy yi\t'n as Mci'iiiiiy in j.'(i(pil 
 onli'i'. 'I'll!' prnpcity liclil as srciiiity having 
 lii'i'ii ii'iliii'i'il in valiU' In CKKI nr t'.VKi, in I'nn- 
 xri|iit'in'i' nf II tii'i', mill an aclimi haniiL! Iiccii 
 luniiu'lit a^;ainxl tlu' Miircty fnrtju' piiiuipai snni, 
 witli ilpwai'ds nf t\\ ciilyllvt' yi'aiM' intcruwl, 
 
 //'/'/, that "lintwilhslaiidilig lliu iiiicxanipiuil 
 and iiit'xpiii'alili' iliiay," the niircty wiw luit ills- 
 ihar:.'('il frnm iiayiiiriit nf llu' priinipal mini. 
 
 ijiimri, as In the ilaiin fnr inU'i't'st. 
 
 S' mill, , that if the Hiirety had rei|iU!»tt'd the 
 I'l'i'ditnr toHiic, and hud ai'i'mnpaiiifd his ii'i|iieHt 
 with mi nll't'i' nf indiiiiiiity, hi' wnnld have lift'ii 
 ri'li'iist'd in the I'Vfiil nf llu,' i.iL'ditnr fniiieariiig 
 t(l x\w. 
 
 I'd^l, . 1. «!«/;///(( , V. l.lttoil, I \. S. I)., .'17."). 
 
 «. Liability or surety ->i. A. H. was ap- 
 
 pninted tri'aMiircr fnr ihi' Cniintv of 'I'lii't'iis, mi 
 till! I.'iiii nf March, ISIi'J, >,'iviiig a lioiid in the 
 .Slim of .'*4,(MH», witii suretius, fnr tlie perfonii- 
 uiice of the diiticH of his nttice. He cniitinueil 
 to Imld tiio otfioo iinlil the l.')tli Martli, IS(iS. 
 Having' failed to iiccniint fnr and jiay over cer- 
 tain inniieys received by hiia as such treasurer, 
 after the first year for wliicli he was appointed 
 to the otlice, an action was lirought on the lioiid. 
 Ihid, that tlie office of Comity 'J'reasiirer., 
 miller Hcv. .Stats. (.'h'd series), c. 4.'>, a. I, being 
 an annual riffice, the liond made )>y J. A, H. 
 and the other defendants, as liis sureties, did 
 not extend beyond the tirst j'ear lie held that 
 utfice, and, as there was nothing to show that 
 there was any defalcation during that year, 
 there must be judgment for the defendants. 
 The Atlorncy-Gen^rnl v. Hemeon ff al., 
 
 1 N. 8. D,, 485. 
 
 N. Liability or Nurely- 
 
 I. UN III 1,1,^ AND NOTKS- 
 
 •sv. BILLH WF F;.\( IIAMiE AND i>KO. 
 
 MINNOKY \0TF;.S. 
 
 Srr BOI^I). 
 
 II. ON ItoNKS 
 
 III. (IN d'AKANlKKS 
 
 IV. AS HAIL- 
 
 >S,;t CONTKAtT. 
 S" BAIL. 
 
 TAXATIOX- 
 
 I. OK liANKS- 
 
 II. OF COSTS -- 
 
 III, OK siiii'Imm; - 
 
 S" BANKS. 
 
 Sf costs'. 
 
 »' Sllil'IMXi, 1 '1 
 
 I TA.\ES - 
 
 Lien Tor 
 i V'. HALIFAX, (ITV OF, u ,S7- 
 
 MOKTtiAilE, lis. 
 
 TELEOKAPII- 
 
 I. COXTHACT liV— 
 
 sv< CONIRAtT, - >. 
 
 TI. PROOF OF TKLKCRAM- 
 
 Srr EVIDENCE, IKI. 
 
 III. i.IAI'.ILITV OF TKLKOKAI'H COM- 
 
 I'AXV FOR TRAXSMITTIXO LI- 
 
 BFLLOU.S MKS.SACK— 
 
 See DEFAMATION, 1-' 
 
 TENANT. 
 
 1. Action by one tenant In commoit 
 
 against another— One tenant in coniinon caii- 
 not sustain an action of trespass qiiare clau-inii 
 j'reijU against his co-tenant. 
 
 Elliott V. Smith ct al., 2 Thoin., S.SS, 
 
 2. One tenant in common cannot sustain 
 
 an action against another, except the iicliun 
 
 given by .Stat, of Westminster '2, c. 2*2 (l.S Kd. I). 
 
 Freeman tt al. v. Morton, 2 Thoin., .'540. 
 
i:.45 
 
 TIME. 
 
 IHii 
 
 :i. Anion b) tenant In common aKUlniit 
 
 (*o«tenaiit I'luiutiir IhhiikIiI uii nction nt truM'i 
 t'ni' 1ii;;h t'-.it ami pilt'il liy him, t'oi' hit own um', 
 on litiiil fiiiiiioily lK<lriiigin(( to .lolin Lytull, wlio 
 liml iIIimI iiiti'ittati', Icikvjii^ llirt't! Iu'Iin, hiiiciiik 
 wlimii Nvi'i'i^ till' |iliuiitiH"M wifi'iuicl iiiiu iif tliti 
 • It't'i'iiiliiiitK. A f<i.'iU'iiil verilii-'t for tin- full 
 valiu' iif lilt' lii^M u'lii fciuiiil fur llio plnlntiH', 
 uiiilcr tliu ilii'(!i;tiiiii iif tilt! .Imlgf. 
 
 //■Itl, tliiil I he vficlict must 1h^ Nt't UMick' on 
 till' ;;i'(iiiiiil (if iiii«(liri.Htiiiii, Mil fur uh it iitl'f(;li'(l 
 till' iliunajji'N U8 vvuii t'l't^ai'iliiiji; tliii tlufviiiluiitM iik 
 \Miiii;{'i|ii('i'M, till' |iliiiiitiM' wiiM only cntitlt'il to 
 oiii' iliinl, 
 
 ■liiiiR'H, il., iliiliitaiiii . 
 
 tjinnri, W'liutliur the {iluiiitiir having! iidinit- 
 It'll II ti'iiaiicy ill uiimiiinii with ilt'fcniliuit, tlu' 
 liitliT roiililiiviiil liiiiiKt'lf of thill ili'fi'liri! wilhoiil 
 11 (ili'ii. 
 
 /tritiaiii V. J'nrbiii al., ;t II. iV ('., 5S1I. 
 
 /*'(' llliitii, il. — TimantH III I'ommoii t'liiiiiot xiu' 
 i*i!|>ai'ati!ly for a ti'<'N|iar<M to tlii'ir liiiiil, lint imiIi 
 oiiu may, i think, Mt'|iaiuti'ly clt'ffiicl hi< |)cmni'-- 
 Nioii, uiitl do luiy uct wliicli ull inijjlil ilo ton 
 Jointly ill iK'fi'niH! of that poKNt'MHioii, Hhiii't of 
 niAiiitaiiiiii)j an action in ii'Mptit of it, 
 
 AVio;/ V. Mdi/lnrii/, I 'I'lioiii., CJiicl HM.), iNtl. 
 
 II. Where a part} conveyN n portion of 
 
 IiIh IiuhI to iinotlii'i', witlioiil ik'sci ihinK it l>y 
 int!tt!N uiiil lioiinils, gnintor ainl ^'raiitt'L' ln'coiiic 
 toiiiuit* ill common. 
 
 .l/rA'/./ V. MrM,/, Coiiiraii, ;«. 
 
 I'i. Writ of partition The Common Law 
 
 \M'il of piU'titioii I'NtciiilM to joint tl'llallt^4 ami 
 it'iiantH in lomnion, in thix I'roviiico. 
 
 hiimii \. Mr K' null, .TailiL'S, .'l'2S. 
 
 4. Construction of will to determine 
 
 whi'tlivr liuiu>HuiarU':i took as luiiuiitH in coiniiioii | 
 oi joint tenants, 
 
 SVr Will. 
 
 .1. Nonjoinder of tenant In common as | 
 
 plaintiff in action for uae and occupation— 
 Mesne protits— 
 
 Svr I'R.iCTICE, IS.J. 
 
 TEMIKK - 
 
 •N" BILLS \iV E\CH.V>UE AM) PKO- 
 MISSOKY NOTES, VI., II 
 PLEAIUNU. I'«). 
 
 <l. Nonjoinder of parlle.s entitled m ten* 
 
 ant.s in common, in ejectment— 
 
 Vr c E.IECT.MEXT, -'o. 
 
 4. Ordinary tenant - 
 
 S,!v. LANDLORD AND TENANT. 
 
 !<. Rights or one tenant In common, In 
 
 ejectment —A plaintitf in (.'jcutmont, ])idvt'd to 
 he entitled a.s ii tenant in coinnion, ami with a 
 (k'lincil inturuijt a» such, lias a right to recover, 
 Muliject to the rights of the other toimnts or 
 their legal re[)reseiitatives, against a .stranger, 
 altiiough »uch plaintitr claims a right of posses- 
 sion to an entirety. 
 
 A purchaser ai a .Shcrifl's sale may appoint a 
 third person to receive the deed. 
 
 Scott V. McNutt et nl., '2 N. .S. 1)., 118. 
 
 0. Tenant in common ousting bis co- 
 tenant— 
 
 Sec EJECTMENT, 50. 
 
 10. Tenant In common —Rights of— One 
 
 tenant in common may prostrate and justify 
 prostration of any building erected by a stran- 
 ger on the land of which he is one of several 
 joint owners. 
 
 TIME. 
 
 1. An Action was lirought by the plaln- 
 
 titl' bank a.>i assigneu, under the Insolvent Aot 
 of 1H7."), of tlu^ liaiik of [..iveriiool, against the 
 defendant, for a lall of 1(M» per cent, on his 
 stock in the said Hank of Liveip"i/1. The only 
 evidence of the making of the call was a notice 
 jiublished in the (la-.'lti of the ITtli of .January, 
 and following issues, as well as in the local 
 papers datetl the lOth of .January, by which a 
 number of calls weie made, payable at inter- 
 vals. 
 
 Held, that the calls could not all be legally 
 made al one time, and none could legally be 
 made but within ten days after the expiration 
 of six months from the suspension of payment 
 by the bank. And further, that in computing 
 the statutory intervals between calls, the time 
 must be reckoned exclusively of the day on 
 which the previous call was payable. 
 Bank of Nova Scotia v. Fo^-hen, 4 R. & G., 29.'). 
 
 2. Enlargement Of time Tor doing Act - 
 <See ELECTION LAW, 14, 18, 21, 23, 24 & 25- 
 
 PBACTICE, 276 & 277. 
 
1547 
 
 TRESPASS. 
 
 lo4S 
 
 3. Mnety days and three months not 
 
 equivalent terms — 'I'lie Statute euiiMiuj,' tlie 
 City Ctiunc'il to inako a l>y-la\v iirovidus that 
 iniprisimiiieiit fiu' uinoty days may lie aiinuxeil 
 ti) tiie Ijreach tlun't'of. 'I'lie l)y-la\v against 
 Sunday trading providecl for an iinpi'isonuient 
 of tliruo months. 
 
 //>/'/, that llm I>y-la\v '.vas void, a'ld .i con- 
 viction tiiereunder was i|uashed accordingly. 
 Thi- City of Hull/ax v. CIk-^ui, 6 K. & (J., oil; 
 
 OC. L. T.,,-)4-2. 
 
 4. Notice of motion— Length of time to 
 
 be served — Computation of — The notice of 
 motion for an ordci' setting aside a re[ilevin 
 order, was served at ()..S(I p. ni., Friday, for the 
 following Tuesday. An appeal from the order 
 mad" on such notice was allowed. 
 
 MrDwiuld. V. McKur.o:, 20 X. S. R., 
 
 (8R. &t;.), -JS-J; 
 SC. L. T., 4.-)0. 
 
 .1. Time Tor presentation, service and 
 
 trial of election petition— 
 
 Stt ELEtTION L.iW. 
 
 6. Where the plaintiff marlied a default 
 
 on the twelfth day after tiie service of a writ, 
 with the particulars indorsed thereon, and 
 entered up judgment on the fourteenth day 
 thereafter, 
 
 Hiflil, that the default was not a nullity, and 
 even if it were, the plaintiff was not entitled to 
 sign judgment on the fourteenth day. 
 
 Writ served, Nov. "JOth ; Default marked, 
 Dec. '2nd ; Judgment entered, Dec. 4th. 
 
 Ma-iltri v. PhiniHi/, 2 Thom., 4l29. 
 
 3. Order In Council Uh January, IHUI, 
 
 not to trade between two enemies' ports, applies 
 only to vessels, taken l)etween the two purls 
 not to those merely intending so to trade. 
 
 Tin Exjinsi, Stewart, ■2\}2. 
 
 4. Trade of neutrals- Letter of Dr. f roke 
 
 respecting trade of neutrals with the C'ljlonies 
 of the enemy. 
 
 .Stewart, Ap/n mlix, ji. X I'll. 
 
 5. Trader, deflnition of under Insolvent 
 
 Act, 1875— 
 
 Sec INSOLVEXCY, m. 
 
 THVDE AND TRADE MARK. 
 
 1. Breach of agreement not to manufac- 
 ture or sell an article — 
 
 See MEDICINE AND MEDICAL PRAC- 
 TITIONER, -'. 
 
 2. Infringement of trade mark — The 
 
 imitation of la)iels and wrappers whereby the 
 public are misled and the plaintiff injured will 
 be restraineil as a fraud upon him, and though 
 an imitation will be deemed colorable, if it l)e 
 such that a careful inspection is recpiired to dis- 
 tinguish it, yet a Court will not interfere when 
 ordinary attention would enable a purchaser to 
 discriminate. It is not enough that a careless, 
 inattentive or illiterate purchaser might be de- 
 ceived by the resemblance. 
 
 JohmoH tt id. V. Pavr, R. E. D., 98. 
 
 TREATY. 
 
 1. American-American vesselsniay supply 
 
 tishing vessels with necessaries, and enter an 
 uninhabited port in the course of such trading, 
 under the American treaty. 
 
 The Famt , Stewart. !l."). 
 
 2. The Aiiierican treaty was a complete 
 
 dissolution of all connection between the i'viiig 
 
 of Creat ihitain and his former subjects in tiie 
 
 Colonies. 
 
 Thi /'roriilnicr, Stewait, ISIi. 
 
 3. Hnedish, 1661 — Passport not being 
 
 according to the form there prescribed, a vessel 
 restored, but claimants condemned in costs. 
 
 The Stockholm, Stewart, .'JT'l. 
 
 4. Passport under— 
 
 Stewart, ,')41. 
 
 TRESPASS. 
 1. Action for trespass involving title to 
 
 land, tiie sole (luestion between the parties 
 [ lieing as to the division line that separated tlieir 
 
 respective lots, 'i'lie verdict being for plaintifl', 
 ' a rule was taken out under tiie .Statute to set it 
 
 aside, but on argument, 
 
 I //(/'/, tiiat the verdict ought not to be dis- 
 I tur))ed. 
 I Camphell v. McKinnon, 3 N. S. ])., 321.'. 
 
 i 2. Costs— Certiflcate matter of discretion 
 
 I —Tiie gianting of a certificate tliat an action of 
 trespass was brought to try a right so us to en- 
 title the plaintiff to costs, is a, matter for the 
 discretion of the presiding Judge, with which 
 
 j the Court will not interfere. 
 
 I McGillivray v. Mchaac, James, ISo. 
 
1541) TRESPASS. looO 
 
 3. Damages In- AsseSKlIient of— Plaintiff .Subseiiuently, at themiuest of lli^i(.■rl•^lit^)l•s.tllo 
 (•llliIllt•(l cliiiim^'cs for trt'siKis.sf.s Loiniiiitteil liy iinsigiR'u iilloui'il liitii to ii'>im\i.' jinssession of 
 ilufoii(liiiil'.s iiitlle on liis liuidii, anil (liiiniigos llie gooils iiuil to svW tlioni for tlii'ir lieni'lit. 
 sii.stiiiiieil l>y leiison of the ovurtlow of water on Xo deed of coniiio>ition was entered into, noi' 
 plaintitr'ii land, caused l>y a dani elected l>y was there any tiansfei' of the goods to \V. M. 
 ilefeudant. 'I'lie jiny found in favor of plaintitl' ('., nor any discharge given iiini. Afttir they 
 on liotii grounds of his claim, assessing the dam- had iieen some time in his possession, the ile- 
 ages generally at .'?.")0. fendant as City Mainhal, acting under an exe- 
 
 As to the liist claim, the t'ouit weio of culion at the suit of '1'. J. \V., one of the 
 opinion that the evidence sustained tiie plain- creditors, seized and sohl a portion of the goods, 
 tills allegation ; hut as the damages were The assignee thereupon sued lum for tresjjass. 
 assessed genei-ally, and thcif was some doul)t //>/(/, that the scizme and sale were illegal, 
 whether the liahility of the defendant for the the goods lieing still in the possession of the 
 overflow of the water was estaMished, the tind- assignee, and that defendant was liaMe in dam- 
 ing of the jury was set aside, and a new trial j ages. 
 
 was granle.i with costs. | Jlmn /j v. CoN,,; .'i N. S. 1)., 1(11. 
 
 Cain. V. L'ltlmau, -20 N. S. K., (8 R. kC-.), 14S ; ! 
 
 8 ( . L. 1., ;{7:{. 10. (liovernnient Kallways Act -Acts 1S81, 
 
 ■ c. 25, s. 109, Dom, — Who employees within — 
 
 4. Damages— Where the Jury, In an ac- ■S'-< KAILWAYS, !i. 
 
 tion of trespass, finmd for tlie plainlill' on the I 
 
 ground of adverse possession, the .lefence being H. Highway - DcdiCJltlon Of- EvIdcnce 
 a documentary title, the Court refused to set i *■<> **uPPO''t— IV irvrTWkv 
 
 aside a verdict for one hundred dollars as ex- ' ^''" J>JLMT10>, l.'J. 
 
 cessive, although defendant hacl a goo<l docu- : 
 
 mentary title, and had convince,! himself l,efore ' ^'^' Highway - Drainage - Dedication Of 
 
 .onnnitting the trespass that the lau.l was his. water - course -^ Public Easeme..t - Adverse 
 
 ,, . ,, ;,. I ,1. , p V, t^ .)-„ enjoyment — Prescription — Action of trespass 
 
 \ against a Surveyor of Higliways for cutting a 
 , „, , _ » n 11 it , ditch through i)laiiit ill's land to carry oti' walei' 
 
 5. Distress for rent-Failure to give no- , , , , ,, ,„ 
 
 ™ t • i.- 1. .• 1 » 1 '""" tlie iiighway, and tor tilling up aiiotlier 
 
 tice— Trespasser ab initio— I )eteiidant made ,. , . , ,• , , , , 
 
 ,. , . .,ri. ^, ,. 11 1 1 . ditch 111 the highway, and lliereliy ciiusuil' 
 
 distress uiKiii plaintitl for rent lawfully due, but „ , . .^,.. , , /\ 
 
 '. , . 1 ,. , , .. ., water to flow over plaintiri s land. Defence; — 
 
 ilid not give lum the live days notice ot the ,,, , . , ,,,, , 
 
 . , , 1 1- .. • 1 1 11 i_.. .. . lo tlie first charge: 1 hat the toriner owin'i- of 
 
 sale of the goods distrained prescribed l)y. Statute. ,..,.•11,,. . . 
 
 ,-,,,, ^ 1 • -^^ 1 i)laintill s land helped to construct the iiiuiuvav, 
 
 Htlil, that he was a trespasser ab initio, and ' ' . ,,,.,. 
 
 ,. , , . , and agreed to the cutting of the ditch for carrv- 
 
 lialde in damages. % . <•.,,■ 1 , , 
 
 ., ,. „ , ,. V- ^, ,, .JO- ">« off the water from the highway; that tlio 
 
 (Jorndiuf v. Burton, .\y. >. \),, Mi. ,.° , , , , . , '' 
 
 ditch hail been in use tor that purpose for 
 
 .Vee, «/.>o, 4th K. S., C. 101, S. 6. tliirty-seven years; tiiat occasional obstructions, 
 
 «. Easement — Constructive notice of— 
 
 during that time, had been removed by the Sur- 
 
 ^ , , . . . ,. veyor for tiie time being; that the ditch follows 
 
 Deed creating easement requires registration— ^, , r .1 u c r 
 
 " ID jlig natural course for the now of water from 
 
 See KEUISTKATION, 13. tlie highway; and that the cutting complained 
 
 of was a clearing out of obstructions which 
 
 I. Easement - RIglit of way -Excess- plaintiff ha,l i.laccd in the ditch a sliort time 
 
 Removal of gate -Proof of certificate of reg- ln.f.ue. The defence to the second comjjlaint 
 
 istrar — _ \vas that the other ditch was a ditch alongside 
 
 Se<! KEdilSTKATION, :«. j,,^. highway, too deep lo be safe, and that the 
 
 ,, _ . „ _ ^ 1.1 t. defendant, as such surveyor, partially tilled it 
 
 8. Easement Iser of a way to which a , , , ,. , , ,. ,. . i , 
 
 , 111. X iE • i i "!•- i'** "^ "i"' ii light to do. At the trial the 
 
 party has no legal right, not sufiieient to ,' , , , , 1 .■ , r 
 
 ' ..., . , r , . ,. .ludge excluded the evnleiice ot defence to the 
 
 entitle to damages for an obstruction — ,. " , . , ,. , , . ,. 
 
 hrst complaint and a verdict, under his direc- 
 
 See DEED, •2-2 tion, passed for jilaintiff. 
 
 //</(/, 1st. That the long use of tlie ditch 
 
 ft. Goods — Trespass to — Assignee In In- through plaintiff's land was evidence from 
 
 solvency — Power of, over goods of trespasser whi'h a jury might infer a dedication by deed, 
 
 — Trespass — W. M. C. becoming insolvent, his though there was evidence of an assent to such 
 
 estate under the provisions of the Insolvent Act use more than twenty years ago. 2nd. That 
 
 was placed in the hands of the official assignee, the defendant had a right, as such surveyor, to 
 
1551 
 
 TRESPASS. 
 
 1 
 
 'Oi 
 
 uliwe or alUT llie ditclie.s iilong lliu liigliwiiy, the (lefemlant ilid in iiHscitioii of ii right "f Wiiy 
 
 U8 a priviite propiiL'tcir of huul in the saniu situ- over tlie ground on wliich it luid heen erecteil. 
 
 iition might. Venliit fvt a.side accordingly. Tlie evidence was concUi.sive as to the fact of ii 
 
 'Pile following jii-oposit ions were atlirnied :— right of way having lieen enjoyed liy the puMic 
 
 'I'liat as to the water not flowing in cletincit r>ver the land in iiuestion for a jieiioil of ii]iwaiil> 
 
 channels the flowing does not warrant the of forty years, 
 presnniption of agrant. //'''/, Wilkin.'^, .1., </m.« ?i/»h;/, that it ui^ 
 
 That as the owner of the high land cannot tliereliy proved a ))nlilic way common to all the 
 
 collect sucli waters in drains and precipitate King's sulijects, ami although defendant hid 
 
 them on the land of another |)roprietor helow, relied upon pleas of a privnie way instead of ;i 
 
 a grant may lie presumed where this has Iteen pulilic highway, still his defence was sulistan 
 
 4h)ne as of right for twenty years, and this not- tially good, 
 withstanding the ])rescription Act, c. lOd of 
 H. S., 4th series, s. "28. 
 
 Thai evidence that use liegan prior to twenty lij, JustlliCatlOll IIIMlCr Warrant— I >efend- 
 
 years hy consent is merely evidence against the ant liroke into and entered plaintitl's premises. 
 
 Couixtii V. U/i/aiir, 'J N. .S. ])., i;i. 
 
 presumption of a grant, and ma, 
 
 lie met liy not lieing witiiin a mile of any mine or miniiii; 
 
 of right, etc., for twenty years. 
 
 That the consent liy paiol to the estahlish- 
 
 counter-evidence that the use was afterwards as works, and seized and ilestroyed intoyieating 
 
 liipiors found thereon. Plaintiff lirought an 
 action of trespass, and defendant justitied undei 
 ment of an artificial course made more than a warrant commanding him to seize all the 
 twenty years ago, is nf)t conclusive that the liipiors founi.1 or to lie found hy him on tiie 
 suliseiiuent twenty years' use was not hy grant premises. Verdict for defendant set aside. 
 
 Jfiail V. Putnam, 1 H. & (i.. Hi. 
 
 1«. Leave and license -Evidence of, can- 
 
 not be given under plea in denial and justi- 
 fication — 
 
 >t' iI.\LIFAX, CITY OF, U 
 
 II. Ji'ewly discovered evidence of title 
 
 liccause such a right could not he c<infcrred liy 
 pared alone. 
 
 That a dedication to the jiublic of an ease- 
 ment may he inferred from the like circuin- 
 stances as warrant the infeience of a grant in 
 the case of a private person enjoying such 
 easement. 
 
 That the surface and ditches of a highway 
 
 may he altered without lialiilily to an action l>y Application was made to .set aside a verdict Uw 
 
 the adjacent proprietors. 
 
 Ilarritou v. //(trn\oii, 4 R. kS: (!., .'WH. 
 
 13. jKstlllcatlon -Dedication of streets - 
 
 Defendants removed plainlill's porch as a nui- 
 sance, and justitied as lieing a committee of the 
 City Council, duly authorized to remove any- 
 thing whicli was a nuisance, eneroachn\ent, or 
 annoyance on any of the streets. The evidence 
 showed that the p<irch which encioached upon 
 the puhlic street several feet had been in exist- 
 ence, just as it was before being ])ulled down, 
 for a period of sixty years. There was no 
 evidence as to the origin or dedication of the 
 street, and it did not appear whether the porch 
 or the street were the more ancient. 
 
 Hflil, th"*- '.n the alisence of evidence as to 
 the origii'.il laying out of the street, its dedica- 
 tion to the public should be taken as subject to i ticulars of alleged trespasses. 
 
 defendant in an action for trespass to lands, ami 
 for a new trial on the ground of newly di.scov- 
 cred evidence favorable to the plaintifl'. At the 
 trial, the point submitted to the jury was 
 whether the defendant occupied as tenant of W. 
 or in assertion of his own right. The issms 
 submitted to the jury on this i)oint were found 
 in favor of defendant. The newly discovercil 
 evidence went to show that defendant on seveial 
 occasions had admitted the title of \V. and il 
 believed by tiie jury would i)e conclusive on tlic 
 point upon which the case turned. 
 
 A new trial was ordered. 
 
 Unrlawl v. Gtivry, L'O X. S. K., (S R. .S: (i.), \. 
 
 IS. Particulars of trespassci—Action dis- 
 
 mis.sei', ' r non-compliance or evasive c<impliiiinc 
 with an .. der reejuiring plaintifl" to furnish piu - 
 
 Fairbanks v. Ilartuhorne, (i R. & <i., 41I.S: 
 «C. L. T., .■)40. 
 
 the encroachment in (piestion, and that the ver- | 
 diet for defemlants should be set aside. 
 
 Hwjarty v. Pryor ii al., '2 N. S. D., 532. | 
 
 19. Partnership - One partner cannot 
 
 14. Justification of right of way— Plea of enter on his partner's land and remove a build 
 private way, proof of public — Trespass for ing, though that building he merely on blocks, 
 removing a dwelling house of plaintift''8, which ' and has been built by partneiship funds, and 
 
1 553 
 
 TRESPASS. 
 
 155-1. 
 
 intfiidud for a, store to curry on the partnerBhip I 
 
 biiHinesa, 
 
 McKiitzk V. McKur.ie, 1 Thoin., ('iiul Kd.). 198. i 
 
 20. Party fence — Llc<^ ...a — Defendant ' 
 
 built a Htoiie wiill lietwei'ii iii.s liind and tliat of 1 
 the pluintiir, of which tlireu fuet at the bottom ' 
 and one foot nine inches at the top were on i 
 phiintiff's property. At tiie time tlie wall was . 
 erected plaintiff said to defendant's Imilder: 
 " You 're hnilding on my land." He said fur- j 
 tlier tliat he had no objection, but, "I caution ; 
 you that in the case of my selling, the purchaser \ 
 may put you to trouble."' ! 
 
 Iltid, that '.his was a ijualitied license jus- • 
 tifying the erection of the wall, but going no 
 further. 
 
 PiUrt V. Firrkir, '.i N. S. 1)., (57. 
 
 21. Party fence -PlaintifT and defendant 
 
 were adjoining proprietors, tlieir respective lots 
 being divided by an ordinary |iost and board 
 fence. The fence was blown down and defend- 
 ant employed persons to build a new one, which 
 diflFered from the old one in that the posts had 
 "shoes." The excavations necessary for the 
 posts and "shoes" were made liy defeniliuit 
 partly on his own land and partly on plaintitl's 
 land. 
 
 Held, that defendant liad no rigiit to excavate 
 or build upon the plaintitl's land. 
 
 Hunt,,- V. Iloiini, •_> X. S. D., U.S. 
 
 22. Pleadings Declaration for several 
 
 trespasses, including the placing of rubbish on 
 the soil. I'lea, right of way. 
 
 Hdd, on demurrer, that the plea shoidd have 
 stated the particular tresj)ass intended to be 
 justified. 
 
 7"o/<i(j et ill. V. O'Xiil, .lames, OO. 
 
 23. Pleading in trespass — Denial of 
 
 pIainti£P's possession — To an action of trespass 
 to land, defendant pleaded, among other pleas, 
 that the land was not plaintiff's, as alleged. 
 The verdict was for plaintitf. 
 
 Held, per McDonald, C. .1., and Weatherbe, 
 J., that the plaintiff's possession was put in 
 issue by the plea. 
 
 Per McDonald and James, JJ., that the pcs- 
 eession should have been specifically denied, and 
 the plea was not sufficient. 
 
 The Court being e<iually divided on the rule 
 for new trial, the rule dropped. 
 
 Embree v. Xoiles, 3 R. & G., 82. 
 
 24. Pleading — Way of necessity ~ When 
 
 a tenant by the courtesy of one lot, who is the 
 owner of an adjoining lot, pleads a way of 
 52 
 
 necessity in himself, there being u convenient 
 access by the lot of which he is owner, 
 
 Htid, that such plea will not be a good de- 
 fence. The plea need state no more than that 
 it is a way of necessity. 
 
 lUttchj'uiil V. Kiniuar, 2 Thorn., 407. 
 
 25. Plea of right of way — Evidence of 
 
 way of necessity not admissible under— It is 
 not essentially necessary that the writ ip tres- 
 j>as8 should descril)e all the lM>undaries of the 
 ]ilaintiff 's land. Under a plea of right of way, 
 where evidence was received of way of necessity, 
 it is too late to object after tiie trial that such 
 evidence was not receivable. 
 
 Tad V. lieifn, 2 Thorn., 4'2«. 
 
 26. Possession, adverse — Occupation — 
 
 The .St-atute of Limitations should not be so 
 construed as to protect or be a means of fraud. 
 
 The plaintiff exchanged mud flats not capable 
 of actual occupation for sedge banku bearing 
 grass, into which plaintiff entered and retained 
 possession for twenty-five years, no conveyances 
 lieing executed on either side, and subsequently, 
 as tlie mud flats became productive by accretion, 
 tlie jtlaintifT entereil and took the gra.ss from 
 tlieiii also, at the same time claiming title by 
 possession to tlie sedge lianks. 
 
 //(/'/, that if the exchange was completed by 
 a mutual surrender of the lands, there was 
 mutual adverse possession, but if not, the par- 
 ties held jiermissively from each other, and the 
 Statute of Limitations could not aj)ply. 
 
 Hdd, (ilxo, that tlie fact of such surrender 
 being made is a question for the jury. 
 
 forty fh v. Griffin, James, 241. 
 
 27. Possession, adverse -Defendant's tes- 
 tator, in IfS.'Jl, put plaintiffs in possession of 
 certain premises, without any deed. In 1838 
 tliev executed a deed thereof to him in trust for 
 their daughter. In 1859 he devised to defend- 
 ant all his farm, Ac, without excepting the 
 portion given to plaintiffs. Plaintiffs continued 
 in undisturbed possession until 1870, when de- 
 fendant committed the trespfiss which was the 
 subject of the present action. He justified 
 under a plea of title. 
 
 Held, that plaintiffs, having had possession 
 for twenty years after 1839, had acquired a 
 title, and could maintain their action. 
 
 Bowe7i et III. V. Shears, 2 N. S. D., 507. 
 
 28. Possession, adverse - Evidence of 
 
 continuous user— The plaintiff claimed a right 
 of way over land of the defendant from a 
 meadow lying in the rear of defendant's land 
 
1555 
 
 TRESPASS. 
 
 1550 
 
 to tlic liigliwiiy. Hu tcstitieil on tlu; trial that //</«/, that phiinlitt' hiul not Nhowii hiuIi mi 
 
 T. (I()iirl(,'y, till' plfvioUM owiilt of liis lot of uclvcisf ami t'xulu.sive piwsfs.sioii uh to avail Inm 
 
 laiiil, enjoyed an oasi'inent for tiiiity yi'aiH against t lie dociiiufntaiy title of tliu (Uifondunts 
 
 adversely to the party from whom the defend- and the acts done thereunder, 
 
 ant derived title, Imt he produced no deeil and McDonall, (". ,],, ilis.s, iih'ii;/, 
 
 did not show that the easement, if such theie 
 was, had lieeli conveyed to him. He also 
 claimed under a deed of the meadow from the 
 executors of T. (Jourley, in ISIil ; hut as there 
 was no evidence except that of the plainlill" 
 himself of a contimious user liy (iourlcy for 
 twenty years, and tiie eviileiice taken altogether 
 negatived such a user, it was lieM that neither 
 'r. (iomley nor his executors could convey any 
 right of way t.> the plaintitl', and that the ver- i 
 ilict fo" tiie defendant must lie sustained. 
 
 Tii/'i"r V. Caiii/ilx//, 'J K. .t C, (is. 
 
 i!/i:irurf V. Watijih it «/., 7 U. & < 1., l.'iT ; 
 7 V. L. v., •JOT. 
 
 ;il. Possession -A party who enters upon 
 
 and takes [lossession of land to wliicli he has a 
 right, may maintain trespass again.st a person 
 who, heing in possession at the time of entry, 
 wrongfully continues upon the land. 
 
 MiJ)oiiu/(l V. Suthi liuml, James, .'iO.'S. 
 
 ;t'i. Possession EITeet of, as against a 
 
 party not showing title In an action for trc.>- 
 
 m P0SSe.SSi0n, adverse Wliere tlie l>''^-< t" I'H"'. I'l'i'i'titl relied <m a grant from the 
 
 fatiier of the defendant ha.l a l.lock of wilder- *''"^^» I" "• '^ '•""veyancc from H. to M., and 
 
 ness land, to wlii.^h he had no title, surveyed in '^ conveyance from .M. to plaintill'. The grant 
 
 lS4(t. Imt hnilt no hons.^, except a h.mse for I" "■' '■•••'^'' '" '">iiicction with a plan annexe.', 
 
 lundKiing. made no fences and onlv cleared ten ''"-''fto, covered the locus, hut in the sul.se.iuciit 
 
 acres, and afterwards, in IS4.-., conveyed the conveyance i>o mention of the plan was made, 
 
 land l.v a r.^corded deed to Ids two sons, oiu; of although the descri])tion was the .same as that 
 
 wliom'was the .lefcndant, wiio ploughed .some, "' ''"■ fe''''l"t- I'lii'l't'rt's evidence showe<l that 
 
 Imt not much, ui.on it, and the land .so eon- M., I" whom the property was conveyed l.y the 
 
 vcvcd was afterwards grante.l by the Crown in '"'^'i'li'l giuntec, erected a fence including the 
 
 two h.tshv grants dated lS,-.4 and LSU.Stoa party '"^■"■''' iu..l cultivated the land, ami that the 
 
 from wiio'm the i.lainlitT derived title, an.l to ' Po««e«8i<>i> had Keen continued l.y plaintift' and 
 
 Iheplaintiiniimself rcsi.ectivcly, A.A/, that the '"« tenant down to the commciu'emcnt of llic 
 
 possession and the deed of the defendant diil '"■ction. 
 not debar the Crown from so granting the land 
 
 w ithout otlice fomiil. 
 
 .V,/(('//( v. Mi/>i>iirilil, 1 Old., ■-'74, and <;il,hoii« 
 V. Kililaij, distingtdshed and reviewed. 
 
 Co-//(i V. Chn/j/ii/l, 1 li. it C, 4(». 
 
 30. Possession, adverse Evidence In 
 
 lS-_'4, S. W. au'l .M. W. olitained a warranty 
 deed of land known as .Shipyard Island, and 
 Went into possession under it. Tn i.S.'JS tiiey 
 leased tlie Island to I'., who went into posses- 
 sion and occupied until IS.'lIt or 1S4(). 
 
 I'laintiff had no documentary title, Imt relied 
 on continuous acts of ownership from IS.VJ down 
 to the time of action l)rought (October, ISS.")). 
 It was proved that defendants had exercised 
 occasional acts of ownership din'iiig the same 
 period ; that ten years Itefore action brought, 
 plaintiff agreed \\ ith one of the defendants to 
 take care of the Island for him and to keep tres- 
 passers off'; that when charged with liaving 
 connnitted acts of trespass, lie denied having 
 done so, and said that the acts complained of 
 were committed by other persons, and that on 
 one occasion, when logs were cut, plaintiff 
 denicil having cut them, and the logs were 
 removed by one of the defendants. 
 
 J/'/'/, that this evidence was suliiciciil as 
 against the defemlant, who showed no title. 
 McDonahl, C. d., (//•.«»///(;/. 
 
 FnllirtOH v. /lnin<li;ii if id., '2(1 N. .S. R,, 
 (8 H. j;- (i.), 18-Ji !S C. L. T., ;Cs. 
 
 'i'i. Possession essential to maintenance 
 
 of action —Claim of title - Adverse possession 
 - Conventional line— Ratification — Plaimitl' 
 brought tresjiass seeking to recover damages for 
 acts allegeil to have been committed tiy defeml- 
 ant on land of the plaintiff. It appeared that 
 plaintiff had never had actual or constructive 
 pos.session of the land in (juestion, but, tiiat it 
 had l)een in pos.session of defendant under a 
 claim of title for a period of fifteen or sixteen 
 years. 
 
 Held, that jdaintitf coulil not recover. 
 
 Weatherbe, iJ., dUienttd, on the grouiul llint 
 plaintiff had proved a documentary title, ami 
 that nothing short of the statutory adver.se con- 
 tinuous possession for twenty years could defeat 
 his title. 
 
 Defendant, as part of his defence, relied upon 
 a conventional line alleged to have been estab- 
 lished with L., a former proprietor. It appear- 
 ed that L., liad no title at the time, but that 
 
1557 
 
 TRESPASS. 
 
 155S 
 
 lifter obtuining title, slie nititicil and ailoptcil tlic 
 line. 
 
 Ildd, jiir Wualherlie, .1. — Tlint tlie alleged 
 line was insutlieieiit ; (a), lieeause it did not 
 appear that the real lioundary was ineapal)lu of 
 lieing a.wertained ; (h), lieeause L. had no inter- 
 est at the time it was estahlished ; (c), liecause 
 it was not alleged tliat the ratilication took 
 plaee on the ground, or that any particular line 
 was mentioned ; (d), because L. was illiteiate 
 and was unaware of the spt'citiu nature of tiie 
 desirijjtion of her houndaiy ; (< ), i)ecause tlie 
 alleged agreement ajipeared to have l)een a 
 compromise whereby one piece of land was ex- 
 changed foi' an eipiivalent jiiece on another 
 part of tlie lot. 
 
 MooiHi/ V. Mcliiioxh, 7 K. & <i., 41!»; 
 7 C L. T., 436. 
 
 AtKrmed on aiipeal to the .'^upreme Court of 
 Canada. 
 
 14 .S. C. U., 740; 
 7 C. L. T., ."WU. 
 
 34. PusHCssion — Evidence of- In jiii ac- 
 tion of trespass to land l>y cutting and removing 
 tindier, the amount of damages having been 
 agreed upon, the Judge presiding being of the 
 opinion that tlieie was no otlier ciue.stion of fact 
 to lie submitted to the jury, directed judgment 
 to be entered in the plaintill's" favor for the 
 amount of damages agreed upon, and refused to 
 ^ul)nlit to the jury certain ([uestions of fact 
 which he was reijuesleil ))y tlie counsel for de- 
 fendant to submit. 
 
 //(/(/, there being uncontradicted evidence of 
 possession in the plaintill's' favor, that tlie course 
 [pursued liy the .ludge was juslilied under the 
 terms of 5th 11. .'^., c. 104, s. •_'(). 
 
 Wliere (juestions of fact are submitted to the 
 jury by the presiding judge, whicii amply cover 
 all the issues raised by the pleadings, and leave 
 nothing necessary to be determined afterwards 
 to iiettle the issues of fact involved in tiiC plead- 
 ings, he may decline to jiul any further 
 (luestions. 
 
 JJenBami ft al. v. Ilill vl al., 
 
 •JON. S. U., (S R. &(!.), 4S-2. 
 
 ;t.i. Possession in plaintifT— Dcrendnnt 
 
 breaking open building, &c. -To suceeed in 
 his defence, must prove right of property — 
 111 an action for entering plaiiitilf 's land, break- 
 ing open a barn, and destroying contents, 
 jilaintifF was clearly proved to have been in pos- 
 session at the time of the commission of the 
 trespass complained of. A verdict having been 
 founil for plaintit)', and iv rule obtained to set the 
 verdict aside, 
 
 llrbl, tliat plaintitf being proved to be in 
 possession, it was incumbent upon defendant to 
 show by cleii- and positive evidence, that the 
 right of property was in him, and he having 
 failed to do so, the verdict e<iuld not be disturbed. 
 Ulilani: v. C'ltltr et al., 2 N. .S. ])., o.VJ. 
 
 30. Po.ssession, joint -Where tlie defend- 
 ant in trespass pleaded in justification an exclu- 
 sive possession, and the evidence showed a joint 
 possession with the plaintitl', and there was a 
 verdict for the plaintitl', the Court refused to 
 disturb the verdict. 
 
 Mouri: V. //iiniiaii,'2 'riiom., •J!M. 
 
 37. Possession Limitations, Statute of — 
 
 Judgment entered for defendant, evidence of 
 — Plaintiff's title to locus insufficient, and 
 evidence of continuous possession by defend- 
 ant sufficient — 
 
 Set EVIDEXtE, 4. 
 
 38. Possession Occasional acts of owner- 
 ship— Accretion -Justiticationas Commission- 
 er of Sewers — riaintill' brought action against 
 defendant for cutting a trench acro.ss his laiul to 
 carry otf water from dyked land to the Avon 
 lliver. Defendant justified as a Commissioner 
 of Sewers, liut the justilication broke down as it 
 was founil that the trench was new work, and 
 no agreement had been come to as required by 
 4th K. .S., c. 40, s. 4. 
 
 Plaintiff's possession, on whicii alone he could 
 rely, consisted of cutting every year by himself 
 for live years, and by ins devisor for eight or 
 
 ' nine years j)revionsly, tiie wild grass growing on 
 the land in (|Uestion, between the ebb and tlow 
 of the tide, the land claimed liy him having been 
 marked otf liy slakes, one of which was perma- 
 nent, and the others replaced from time to time 
 as removed liy the tide. Tiie Judge directed the 
 jury tiial the plaintitl "s ])ossessioii was not in his 
 judgment sucli as to sujiport trespass, and left 
 
 i to them twoijuestions relating to the defendant's 
 justitication, which Llie jury answered in the 
 allirmative, linding a verdict for plaintitl'. 
 
 J]i/(l that the plaintiff's possessiim was suf- 
 ticient to support trespass, that the verdict 
 settled the issue as to possession in favor of 
 plaintiff', and that if not the defendant could not 
 ask for a new trial in order that the jury should 
 pass upon this (picstion, the only grounds in the 
 rule being that the verdict was against law, and 
 that the plaintiff' had no title by deed to the 
 
 I laud to which that claimed was an accretion. 
 
 I Hurahani v. Daviaon, 5 R. & t!., 388. 
 
1559 
 
 TRESPASS. 
 
 lafiO 
 
 On appeal to tht Suprtme Court of Canada, 
 
 Hdd, that there was evidence cstablitihing a 
 I'ootinuoua exclusive posHcssion by the phiintifT, 
 for many years, ijuite Butticient to enable him to 
 maintain an action of trespass against a wrong- 
 doer who mteifered with that possession. 
 
 The question of " new work " was purely a 
 (juestion of fact for the jury, and they having 
 found in the affirmative, their finding should 
 not be reversed. The intention of the Legisla- 
 ture, in this Act, would appear to be to empower 
 the Commissioners of Sewers to act in making 
 ordinary repairs, or in any sudden emer'"' y, 
 without consultation with or the consent fpf the 
 proprietors, but that these proprietors should 
 not be taxed for the construction of any new- 
 work not immediately essential to the preserva- 
 tion or interests of common property, without 
 their consent to such work being first obtained. 
 
 As the defendant entered upon the plaintiff's 
 property to perform this work without the sanc- 
 tion of the proprietors first obtained, he could j 
 not justify the trespass imder his commission. ] 
 
 Davison v. Burnhum, 27th Filiruary, ISS."), j 
 
 Cas. Digest, 515. 
 
 39. Possession of wilderness lands— The 
 
 occasional cutting of wood and poles on wilder- 
 ness land is not such a possession as will enable 
 a party to maintain trespass. 
 
 lUirnhUl tt al v. Peppa.rd, 3 N, .S. D., 491. ' 
 
 40. Possession or title necessary to niain< 
 
 tain — Plaintiff, who brought an action of trss- 
 pass against defendant, claimed title to a iot of 
 land by a deeil dated March, 1873, from the 
 husband of Eliz. M., deceased, to whom, as one 
 of the heirs of J. M., the lot in question had : 
 been set off by division under the Probate Act, 
 and from others of the heirs of J. M. He also 
 produced a deed from another of the heirs dated 
 March, 1874. The papers in the proceedings 
 for the division were defective, two of the heirs 
 not being served with notice, and defendant, 
 who had been in continuous possession of the lot 
 from 1872, living in a house on the front (though 
 the rear was not surveyed or fenced), afterwards 
 obtained a deed from one of the heirs of J. M 
 dated July, 1873. 
 
 Held, that plaintiff, having neither title nor 
 possession, could not sustain his verdict taken 
 
 by consent. 
 
 Mott V. Fttnor, 1 R. & C, 387. 
 
 41. PoBsesBlon— Proof of, in absence of 
 
 documentary title — Plaintiffs claiming a cer- 
 tain lot of land under grant from the Crown, 
 passed during the past century, brought an 
 
 ' action of trespass against defendant for cutting 
 
 I tiniber on the land. 
 
 1 At the trial, plaintiffs produced their original 
 grant, and tendered as evidence to identify tiie 
 locus with their lot, ancient copies of the allot- 
 
 1 ment book and plan of the township in which 
 the lands lay, which had often been received in 
 
 , evidence in otiier suits, the originals having lieen 
 lost. These copies were received by the Judge 
 who tried the cause (McCully, J.), without 
 proof of a search for the originals. 
 
 Jlchl, that they had been improperly received 
 
 I in evidence. 
 
 I The Judge directed the jury that plaintiffs 
 
 1 had proved a documentary title. 
 
 ! IIM, that under the above circumstances, 
 
 I there had been a misdirection on that point. 
 
 I Defendant pleaded, first, that tiie laud is not 
 
 ' the land of tlie plaintiffs, and, second, tiuil tiie 
 
 I land is the land of the defendant. Plaintiffs 
 
 I gave no proofs of possession of the land in 
 
 i question. 
 
 Held, that under the jileadings, there l)ciug 
 
 i no plea especially denying plaintiffs' possession, 
 the plaintiffs were relieved of the i)ur(len of 
 proving possession. Defendant gave evidence 
 that he had ciiopped on tiie locus ever since 
 aVxni! 1836, at first as a trespasser, built a log- 
 ging camp on it about two years later, which he 
 occupied in winter ; had one side line run out 
 by a surveyor iu 1841 ; built a saw mill in 18.")(t, 
 which, with the adjoining yard, continued to be 
 used for upwards of twenty years ; had three 
 lines run out by a surveyor in 1852, one of these 
 lines being that run out in 1841. Evidence was 
 also given of three parties having gone upon and 
 cultivated portions of the land under defendant 
 within twenty years, but two of their clearings 
 had been abandoned liefore action. 
 
 Held, that in the absence of any documentary 
 title, defendant had not proved possession to give 
 him title under the Statute of LimitJitions to 
 any portion of the land, except the mill site and 
 mill yard, and that as the alleged trespasses 
 were committed on other portions of the land 
 and the misdirection, etc., were not upf>n mate- 
 rial points, the verdict for plaintiffs must stand. 
 Church Wardens of Falmouth v. Vaughan, 
 
 2R. &C.,438. 
 
 42. Possession— Putting in issue fact of— 
 
 In an action of trespass, where the only pleas 
 were— 1st. That defendant did not enter plain- 
 tiff's close ; 2nd. That the land and soil were 
 not the land and soil of plaintiff, but the land 
 of defendant ; 3rd. Leave and license ; the de- 
 fendant will be precluded from proving that the 
 plaintiff has not the possession. 
 
 Grotto V. Farish, 2 Thom., 29L 
 
1561 
 
 TRESPASS. 
 
 1562 
 
 48. PoHseHHion, title by-In an action of 
 
 trt-Hpass, plaintiff, apart from liia evidence of 
 title, relied on posseHsion for a long period f)f 
 years, the acta of poHsesHion consisting of the 
 construction of a system of canals (several of 
 them inside of the lino duinted hy defendant), 
 connected on the one side with lakes, and on 
 the other with u Bay of Fundy river, l)y which 
 the lands in controversy were flooded twice a | 
 day, and the surface of the lantl eventually j 
 raised, tinis converting the lai\d from a "use- 
 less swamp which could only he crossed hy 
 a team when frozen, to firm, productive and 
 valuahle land." 
 
 Held, tiiat plaintiff was entitled to recover 
 under this evidence. 
 
 McCiilly v. lilair, 3 R. & (i., 4,S.->. 
 
 44. Possession — Title — PlalntllT brought 
 
 an action against defendant for trespassing upon 
 his land and premises, and at the trial proved a 
 clear documentary title, as well as title hy un- 
 interrupted possession for a long series of years. 
 Defendant pleaded title in iiimself as well as a 
 rigiit of way for the j)ul)lic over the land, hut 
 failed to support eitiier plea. Tiie jury having 
 found a verdict for plaintif}', 
 
 Jlild, that it coulil not be disturbed. 
 
 The.rian e( al. v. Bf/liveux, .'1 N. S. 1)., 450. 
 
 under whom lie claimed, to entitle him to re- 
 cover. 
 
 Shey v. JUcHej^y, 1 N. S. 1)., 35(). 
 
 46. Possession — Trespass to lands — 
 
 Plaintiff went into possession of land, on which 
 was a dwelling house and store hoth in one budd- 
 ing, under an agreement to purchase the property. 
 The agreement contained a condition that in case 
 the payment of one thousand dollars should not 
 be made, |>laintitf would yield up ({uiet anil 
 peaceable possession to defendants. Some 
 months after plaintitl''s failure to pay the first 
 instalment, defemlants served a notice upon him 
 re(juiring him to deliver up tiie possession and 
 annulling the agreement. Tiiey sold the proper- 
 ty to one Collins, wiio, in plaintiff's ab.sencc, 
 removed the lock from the store and took 
 possession, after which OjUins, with a clerk of 
 defendants, acting under liis autliority, stopped 
 up the chimney of tiie dwelling. I'laintiff's 
 family removed to ancighimring iiouse, to which 
 his furniture was sent liy t'ollins. Tliere was 
 no assault or breach of tiie peace, and defend- 
 ant's said clerk swore, uncontradicted, that the 
 furniture was carefully removed. A verdict 
 having been found for plaintiff in an action for 
 trespass to the lanil, and trespass and trover for 
 the goods, the Court set it aside and granted a 
 new trial. 
 
 Smitk v. Troop el al., '_» R. & (i., 4S;J. 
 
 45. Possession— Title -Plaintiff was the 
 
 lessee of K., who was owner of a piece of marsh 
 land on the Falmouth side of the Avon River, 
 near Windsor. Defendant was proprietor of a 
 piece of marsh known as the Oxbow, on the op- 
 posite or Windsor side. About the year IS.ST, 
 the I iver suddenly changed its course by making 
 a breach through tlie Oxbow, carrying it away 
 with the exception of two acres, and forming a 
 new channel on the Windsor side. In conse- 
 (^uence of this change a mud flat in the centre of 
 the river rapidly filled up until it became a 
 large Iwdy of new marsh. The land in dispute, 
 a portion of this new formation, was claimed by 
 plaintiff on the ground that the strip of marsh, 
 occupied by him previous to the change, «as 
 bounded by a certain creek, which creek, he 
 contended, should still be considered, in all its 
 windings and courses, lengthened as it was, as 
 the boundary of the newly created marsh. The 
 defendant claimed the lands as an accretion to 
 the remaining portion of the Oxlww, contending 
 that he was entitled to the accretion, formed to 
 the middle of the river, as it ran before the 
 eruption or change of course took place. 
 
 Htld, plaintiff having failed to prove posses- 
 sion, that no sufficient title was shown in K., 
 
 47. Possession to support trespass — 
 
 Plaintiff and defendant entered upon land under 
 claims of title derived from the same ancestor, 
 and exercised similar acts of ownership. .Some 
 years after his entry plaintiEf received a deed of 
 
 ' the land from an uncle who, though he chiimed 
 the whole, was entitled at most to one-lialf. 
 After the making of the deed, and down to the 
 time of bringing the action, both parties con- 
 
 ' tinned to exercise acts of ownership as before. 
 
 I Htld, Wilkins, J., diKsentimj, that plaintiff 
 had not such an exclusive possession of the lot 
 
 j as entitled him to l)riiig trespass against de- 
 fendant. 
 
 Taylor v. Archibald, ^ N. .S. D., '233. 
 
 I 
 
 i 48. Possession under agreement— Refusal 
 
 to accept particular deed tendered does not 
 make party in possession under agreement to 
 purchase a trespasser. 
 
 Leirer tt al, v. McCulloch, I R. & C., 31j. 
 
 49. Possession— Where a boundary was 
 
 I a straight line and was to terminate in the water 
 
 of a harbor, the fencing by that line to tlie 
 
 : water's edge, and possession of the land so 
 
 I fenced are sufficient to give possession of the 
 
1663 
 
 TRESPASS. 
 
 ir)C4 
 
 water up to whore the lino was to terminate anil 
 within tiu- houndary (>))taine(l ))y continuing the 
 line into the water in tiie direction of the line 
 on the land. 
 
 McLxiH V. Jwohs, 1 Tlioni., (IhI Kil,), ; 
 
 C'nil K.l,), !). 
 
 50. Possesftlon Where after delivery of a 
 
 (lei'd the grantor rciiiaiiiH in pfisNCHMion, tres- 
 pass will not lie aj,'ainst liini or hix tenant for 
 cutting trees previous to actual entry of grantee. 
 Lnnijilh V. /.(tiiijilh el <il., I Tlioin., 
 
 (1st Kd.), 1.10; 
 
 C-'nd l-M.), l.->!>. I 
 
 51. Possession -Where plnlntiflT brought 
 
 trespass for cutting wood on land, 
 
 //(/'/, that he must show an actual possession, ' 
 or that the land is within the liouiidarics de- 
 scrihed in his docuincntaiy title. 
 
 Ciumron v. }[i'l>onal<l, 'J Thorn., 'J4(l. 
 
 5'i. Publlo highway - Siibstttiitlon - 
 
 Where land was used as a way in tiic early set- 
 tlement of the country, hut a regular public 
 highway was afterwards sulistituted for it, ivntl 
 from that time, being tifty years before action 
 brought, tile old way was disused, 
 
 //'A/, an abandonment of the ancient right f)f 
 way, if any, and tliat the owner of the soil over 
 which the way passcil held it exemjit from the 
 public riglit (wiiatever the extent of it may 
 have been) that iiad previously burthened it. 
 
 The plea of a highway is not tlivisible, and ; 
 nnist be made out us pleaded. 1 
 
 Semli/i , to constitute a public highway by 
 user, there must be an intention, express or 
 imj)lied, of dedication to tiie public, on the part 
 of the owner who permits such use. 
 
 Lianj v. S(iiiii(ltr» tt al., 1 Old., 17. ; 
 
 53. Reversioner — The person having a 
 
 reversionary interest in a wharf miiy sustain an 
 action against the person obstructing the en- 
 trance thereto. 
 
 Crcamir v. Hoijan, '2 Thorn., 23". 
 
 54. Tenants in common - Ouster — Action 
 
 by one against another — I'laintiH' and defend- 
 ant were tenants in common of a certain dwelling 
 house, and defendant took ofT the doors and 
 carried them away, broke down partitions and 
 did other injuries to the property, whereupon 
 plaintiff brought an action for trespass against 
 him. Defendant pleaded that plaintiff was not 
 in possession of the house, but that he was and 
 is in sole possession. The jury negatived this 
 plea. 
 Held, that the action could be maintained, 
 
 and that the acts nf defendant amounting to an 
 
 ouster there should be judgment for the plaintilt'. 
 
 Mooi-L V. Moon, ',i N. S. 1)., t;«i. 
 
 55. Title — Evidence of— Mensurements 
 
 and distances — I'laintitT had to prove title. 
 Flis place of beginning wan identified, and his 
 description in the grant then read ; running 
 south iV2 chains to a large pine tree nuirkeil ".I. 
 (J.," and thence west, etc. To reach the locus 
 the line shoidd be extended about fifty chiiins 
 more. To that increased distance, the survey- 
 or's line on the ground extended, but there was 
 no pine tree so nsarkeil either at the distance ex- 
 ])i'essed in the description, or at the end of the 
 suiveyor's line. At tlie latter point, however, a 
 ■fy/jv/ci tree was maiked " H. ('<." anil ".1.(1,' 
 The plan attached to the grant ri'presentcd the 
 lot as a diircrent shape from tiiat ilaiiiied, mid 
 the aica expressed in tlie grant was incousjslcul 
 with jilaintilT's contention. 
 
 //(/'/, /"/• McDonald, C. .F,, Weatherbc and 
 Thomjjson, .1.)., that the plaintilF had given 
 no evidence of title to the locus; and /«'/• Rigby, 
 J., that tlie preponderance of evidence was 
 against plaintitrs contention. Verdict for 
 plaintiff therefore set aside. 
 
 (idles V. Dariihoii <l (iL, ."» \\. it <;., l.'U. 
 
 On (i/tpi(i/ to Ihi Sii/iri nil' Court of Cdinnln, 
 
 Ili/il, that there was evidence for the jiuy 
 that the line claimed by the defendant \sas the 
 western line of his grant. The case, however, 
 was not so clear as to justify the Court in revers- 
 ing the decision of the Court below, come to nn 
 a review of llic evidence ; but was a proper case 
 for further consideration on a new trial. 
 
 Oalct V. Dnridsoii, l.'lh jfay, ISS.', 
 
 ('as. Digest, .")l('p. 
 
 5((. Shubenacadie Canal Company -What 
 
 rights conferred on by Act.s of Incorporation — 
 Action of trespass by — 
 
 See PRACTICE, m- 
 EYIDENCE, 4. 
 
 57. Verdict against evidence — Plaintiff« 
 
 being owner of a certain lot of inarsh land, al- 
 lowed his son to cut and appropriate the grass 
 growing thereon, which the son did for several 
 years previous to an action brought. Defend- 
 ant owned an adjoining lot and plaintiff brought 
 trespass against him, alleging that in cutting 
 his own grass defendant had mowed over the 
 division line and into the plaintiff's lot. Two 
 (|uestions were raised by the issues : first, was 
 plaintiff in actual possession of the lot and en- 
 titled to the grass, and, second, was there any 
 
1505 
 
 TRIAL. 
 
 156G 
 
 IreKjHisH at all coniiriittcil ? Tlio jury foiirnl for 
 |ilaintitr<>n Ixitli jhhiius. 
 
 J/ilil, llial tlit'i'/ vunlift imiMt lie si't rt»iili!, tlie 
 ovideiK't! ulfarly Hliowiiig that |ilaiiitiir, altlioiigli 
 tliu undiMputuil owiior, liail not hucIi poHMCHMion 
 (if tln! lot at tiie time of action brought an to 
 ontitlf liim to maintain trfH])asH, ami lliuro being 
 nothing to warrant their liniling, tiiat tiiereiiad 
 lieen a trexpasH coniniilteil. 
 
 Wilkins, ,)., iliiliiiaiiii , 
 
 Wherever the jury decide against or without 
 evidence, tiie Court will always exercise its 
 riglit to control them, in order that justice may 
 lie done. 
 
 Cox V. Wiiiy'l N'. S. 1)., -i,-). 
 
 .18. Verdict sot aside -In an aetlon Tor 
 
 trespass to plaintitl'.s lUvelling Imiise, dcfend;int 
 admitted that |)lainlill' at his (plaintifF's) own 
 door had tohl him he did not want to hear him, 
 and had closed the door, and tliat he (defendant) 
 had tlien said that plaintilt' should hear him, 
 and had gone iimnediately to plainlitl"s \s indow, 
 and there struck on the sill for alH)Ut live 
 minutes. Several witnesses testified that de- 
 fendant liad struck the sill in a violent maimer, 
 and had used, wiiile so doing, violent and 
 allusive language towards plaintilV, alarming the 
 inmates of plaintitl's house. 
 
 Ill Id, that a trespass had lieen proved which 
 entitled the plaintitl'to some damages, and the 
 jury having fomul for tiie defendant, the Court 
 set the verdict aside, and onlered a new trial. 
 
 C'itiiinii;/ltuin V. Jfail/ii/, 1 Ohl., ."i.'iO. 
 
 TKUL. I 
 
 1. Entry for trial A defendant pleadliiK 
 
 liefore the exjiiration of the i)eriod allowed liy 
 law, will not entitle plaintiff to place the cause 
 on the trial docket within the period allowed 
 tlie defemlant to plead. 
 
 HntchiiifOii v. Widuim, James, .SS7. 
 
 2. Notice of trial — Defendant souj^lit to 
 
 set aside a default on the ground that there was 
 no notice of trial indorsed on the writ of sum- 
 mons, although there was a notice to appear. 
 
 Htld, reversing the judgment of the County 
 Court Juilge, that the default was regular. 
 
 liimn V. Utrmci, 5 R. & (S., 55'2. 
 
 3. Notice of trial— It is no objection to a 
 
 notice of trial that it is headed with, the name 
 of only one of the plaintiffs, if the defendant has 
 not been misled thereby. 
 
 Ktane et at. v. Sharp, 1 Old., 540. 
 
 4. Notice of trial -Tlic time for serving 
 
 notice of trial, not Iwing fixed by the new 
 Practice Act (IS.'i.S) is to be legulated by the 
 practice of the Superior Courts of Connnon l-iiw 
 in Knglaml. 
 
 Where short notice of trial wiis given, and 
 verdict taken for ])laintitT subject to the objec- 
 tion, the verdict was set asidt.'. 
 
 Dntiiunoml v. Cnrrilt, JaincH, 'J(18. 
 
 5. Notice of trial- Wliere the venue, 
 
 originally laiil at Halifax, was changed to 
 Sydney, C. B., by rule made alu'.olute on t!ie 
 Tuesday next preceding the Tuesday on which 
 the October term ojieiied at .Sydney, but not 
 served until the following ilay, and the plaiiititf 
 did not proceed to trial at the October term, luit 
 tried his cause without notice at the June term 
 thereafter, anil obtained judgment, the defeiid- 
 ant not appearing, the Couil set aside the judg- 
 ment without costs. 
 
 //(((•-•/. V. ,V'AV<i/, :{ K. Jt ('., !».'). 
 
 tt. Postponement -.\bsence of witness— 
 
 A continuance will lie granleii to defendant for 
 absence of a material witness, although he might 
 have applied eailii^r for a commissiou, whiih, 
 liowcvcr, could have iiardly been returned in 
 lime for the .Sittings, 
 
 JiiiKs V, Williams, .lames, ,'((>H. 
 
 I. Postponement — .\bsence of witness — 
 
 In order to jirocure a continiiaiue on the ground 
 of absence of a witness defendant must !?iiew 
 that he has used all possible diligence. 
 
 Smith V, .l/H.r/cr, James, ,S41. 
 
 8. Postponement -Absence of witness- 
 Where a material witness for defendant gave 
 notice after action brought to the defemlaiit's 
 attorney of his intention to leave the Trovince 
 without stating the precise time, and afterwards 
 went away suddenly, the Court refused a con- 
 tinuance on acc<mnl of his absence. 
 
 Kiilh v. Ihulley, James, 170, 
 
 ft. Postponement— Application for- The 
 
 Court will not grant a rule iiitiiov a continuance 
 on account of the absence of a witness when the 
 application is not made suthciently early in the 
 term to allow plaintiff to answer the rule the 
 same term. 
 
 Ktiih V. 7Vfw«(H<, James, 177; 
 Pnrcell v. Bark",, Id., IV.U. 
 
 10. Postponement-At the trial the cause 
 
 was continued a day to enable plaintitf to get a 
 i deposition which could not be found, 
 
15G7 
 
 TRIAL. 
 
 ir)Gs 
 
 Hfhl, that thin uin» no ol)j(M;tion to tlio ver- 
 dict for ))lnintitT, an the Jiidgo liail iliHorotion 
 un<ler4th R. S., c. 94, h. '.'10. 
 
 FoHltr et a/, v. LttmU, 3 R. & C, 269. 
 
 11. Postponement — CommlMlon not re- 
 turned — Thu tlufuiiilaiit, ill onlt'i' to oi)tuiii a 
 continuance on thu ({round of a couJUiiMHion not 
 )ieing returned, niUHt Hhow that he haH uoed due 
 diligence to obtain itx return in time. 
 
 Landry v. Jonex, ilanioH, ,341 ; 
 Fenju-ion v. HyiU, Id., 334. 
 
 I'i. PoNtponemrnt — The affldiivU for a 
 
 continuance on the ground of the u)>8oiiuu of a 
 material witnusH ougiit to hIiow wlien lie is ex- 
 pected to return. 
 
 Dtvaen v. I>\ii>ut , '1 Tiiom., 13. 
 
 13. Postponement to procure evidence - 
 
 An application to a Judge of the County Court 
 for a continuance, in order to unahle plaintitYto 
 jirocure the evidence of a material witness, was 
 refu.sed on the ground tliat a continuance had 
 been previously granted for the same purpose, 
 ami the Judge had no power to order a second 
 cfuitinuance. 
 
 //'■/(/, that the Judge had a discretion which 
 he should have exercised. 
 
 Cox V. C'forhr, 7 R. & <i., 21 ; 
 7C. L. T., r>_». 
 
 14. Venue — Chanare of venue refused, 
 
 preponderance of convenience being proved, liy 
 plaintiff's utKdavit, to be largely in favor of 
 venue laid. 
 
 The Ju<lge before whom the application for a 
 change of venue was made, having discharged 
 it, directed the plaintiiT, in accordance with an 
 offer in plaintifll"'s allidavit, to enter into a rule 
 to make certain admissions of technical but 
 necessary matter, 
 
 Hi-ld, that this condition imposed upon plain- 
 
 tifT was not a ground for appeal by defeiulants. 
 
 Wocxlworth V, Blarkadar et al., '2 R. & C, 309. 
 
 15. Venue-Change of— Defendant ap- 
 plied for and obtained an order at Chambers, 
 changing the venue in the case on the ground of 
 balance of convenience, &c. 
 
 It appearing that, at the time the order was 
 granted, the issues had not been settled, 
 Hi'ld, that the order must be set aside. 
 
 Kidd v. Henderson, 20 N. S. R., 
 
 (8 R. &G.), 441 ; 
 9C. L. T., 198. 
 
 16. Venue -Change of-Defendant moved 
 
 for a rule to change the venue in a cjise from 
 Halifax to Kings. Jlis MtatementH were precise, 
 and showed that a large amount of money ami 
 I time would be saved by the change. Against 
 this the plaint itr offered nothing specific, except 
 that the cause of action arose in Halifax. The 
 rule was made absolute, l.'Ut without costs. 
 
 Foriylh v. I'orxylh, I N. M, 1)., 494. 
 
 17. Venue -Change of-Headlnff aflldavlt 
 
 — An allidavit is sulliciently entitled in the 
 cause although the words "plaintilF" and 
 " defeiulant " arc omitted in the heading after 
 the names of the parties. 
 
 The changing of the veime in a cause dupeiuls 
 merely on the balance of convenience as regards 
 ' the trial. 
 
 In this case the Court, being of opinion that 
 the cause eoidd be more conveniently tried in 
 another county than that in which the venue 
 was laid, made the rule to change the venue 
 absolute with costs. 
 
 Harris v. Fader, 2 OM, 371 ; 
 j I N. «. 1).,3, 
 
 IS. Venue -Change of- On an appeal 
 
 from the i>rder of a Judge at Chandlers, wiio 
 refused to change the venue in a cause, on the 
 ' ground that the defendants' attidavits did not 
 satisfy his miml that all tiie witnes.ses referred 
 1 to as necessary and material were designed to he 
 I called and exannned at the trial, and that tiie 
 atlidavits were not in Ids opinion sutiicieut to 
 deprive the jdaintitf of his connnon law right to 
 I lay the venue in the county he had selected, 
 especially as tile plaintiff's athdavits set out 
 ' his conviction that he could not obtain an im- 
 partial trial in the county to which defendants 
 sought to remove the venue, the Court refused 
 ' to disturb the order of the Judge made at 
 I Chambers, as there was no rtason in Inslieve that 
 j the Judge had misconceived the fact.s of the case. 
 Ihirkee V. Cox et al., 1 R. & C., 143. 
 
 I 19. Venue-Change Of -On appeal from 
 
 I the decision of the Judge at Chambers changing 
 
 the venue from Halifax to Cumberland, where 
 
 the statements of the defendant as to conveni- 
 
 ; ence in trying the cause were in their essential 
 
 j features uninswered, and it was not shown that 
 
 the Judge had misconceived the facts of the 
 
 case, the Court refused to interfere with his 
 
 I di.scretion, and although plaintiff's agent swore 
 
 I to the existence of a hostile feeling in Cumber- 
 
 i land which would defeat the plaintiff' 's claim, 
 
 I the Court woidd not presume that an impartial 
 
ir)C9 
 
 TROVER. 
 
 1570 
 
 triftl could not he had thorts in a niiittor having , Hvo witnonKcii lOHiding at Haddock, and that it 
 no guncral or ixditicul iiii|>ortani.-u. 
 
 i would coHt liini 91'JI) nioru to try tho oauae in 
 llolih V. Flinn, •«' U. & C, '27. Halifax timii it would in Madduok ; and plaintiff 
 
 ullcgud that thu uttorni'yH and cuunntil on lioth 
 Hidc'H ruHidud in Halifax, that liu hail two wit- 
 nuHHCH who coidd nioru iniHily lit- taki'u to Hali- 
 
 tlO. Venue -Change of Plnlntlff, who re 
 
 «idi!d at Kontvillu, brought un action again.'*t 
 
 lU-fundunt and lahl tho vonuc at Kentvillo. Tho | fax than to Haddock, aii.l that it would cohI him 
 
 contract waH niodu in Halifax w heru dufundant 
 
 had rt'Hidud, and all hix wilnidMcs wen,-, and it 
 
 waH aH convunient for tiu- majority of iilaintiff's 
 
 wilncHHoH to attend at Halifax for tiic trial m at 
 
 Kuntvillo. On appliialion i)y defendant, 
 
 111 Id, that the vunui! should hu cluuigud to 
 Halifax. 
 
 I'ay-Mnl v. Afonl'iomny, ,*} N. .S. 1)., 40.>. 
 
 21. Venue— Chniiffe of Smith moved for 
 
 ndu nisi for changt! of venue to Andierst, the 
 
 cause of aetion having arisen in I'arrslioro'. 
 
 Hallihurton, C. .?.— You are entitled to a rule 
 
 ahsolutu in accordance with the practice in the 
 
 King's Hench. 
 
 iShfl,' V. Fi/i-, .James, 18.3. 
 
 •22. Venue -Chanee of- The Court will 
 
 9'H more t<i try the cause in Itadduck than in 
 Halifax, 
 
 Tho Court disniiHsed the appeal without coatii 
 directing that the testimony of ilefendant's wit- 
 nesses he taken i/' lnin mi' and received in 
 evidence at the trial in Halifax. 
 
 Kiii'i V. Tniilin of Sfhiinl ^I'l'linn of 
 
 Jladilirk; 2 K. & C, 515. 
 
 TKOVEK. 
 1. Action asalnnt SherlflT -Ju^tlflcatlon- 
 
 Where the defendant as SheritJ", seized, umler a 
 writ of attachment, goods in tho possession of 
 the plaintifT, to whom they had lieeii transferred 
 
 transfer was, in a suit hy the plaintitl' against 
 the .Slieriff for the alleged conversion, attacked 
 
 not change tiic venue on the ground of the con- I '•>' '|"' '^I'^'S"'' ahscoiiding dehtor, and the 
 
 venience of trying tho cause elsewhere unless it 
 
 he shown that there is a great and olivious \m\- 
 
 pondcranco of convenience, even where it j.., i "•■'< fi'iUKl'dent, 
 
 nought to change it to the place where the cause 
 
 of action arose. 
 
 liartiaiix v. Cohvquiil IniHi-aiin- Co., 
 
 1 K. & (•., '255. 
 
 Hi/il, that the justiH^ation of the seizure 
 under the writ was not complete without proof 
 of an indebtedness from the alleged absconding 
 ilel)tor to the party attacliing, and that the pro- 
 iluction of the alKdaviton which tlie attachment 
 
 23. Venue -Change of-Where an order '•'*'*"^''' ""** ""' Nurticient for that i)urpose. 
 
 has beenmadeby a.ludgeat ('hainbers tocliange 1 Mill" v. McI.kiii, I H. it C, .'<"!). 
 
 tile venue in a cause on an allidavit showing I 
 special grounds for it, tlie Court will not inter- 
 fere to set it aside, or bring back the venue, property by execution debtor— Misdirection 
 uidess it is manifest that the .Judge who made of jury — In an action of trover or conversion 
 
 2. Action of, against SherlflT -Transfer of 
 
 tlie order had acted on a misconception of tiie 
 facts, or that it is r>tlierwise erroneous. 
 
 Defendants applied to have the venue changed 
 
 against appellant, Higli .Sheritl'of the County of 
 Cumberland, N. >S., to recover damages for an 
 alleged conversion by the appellant of certain 
 
 from Halifax to Windsor, stating in their affida- personal property found in the possession of the 
 vits that the cause of action arose in the County execution debtor, but claimed by the reapon- 
 of Hants, that it would be much more con- | dent, the pleas were a denial of the conversion, 
 venient, and ler;a expensive, to try the cause at "o property in plaintitT, no possession or right of 
 Windsor, and that it would l)e more convenient ^ I'ossession in plaintiff, and justitication under 
 for the plaintiff to attend tiie trial at Wind.sor, "■ wit of execution against the execution del)tor, 
 than at Halifax. These statements being un- i The learned .Judge at the trial told the jury 
 
 answered by plaintiff. 
 
 that he thought it incumbent on the defendant 
 
 //)lil, that the Judge exercised a sound dis- , to have gone further than merely producing and 
 
 cretion in granting the order to change the proving his execution, and that if a transfer had 
 
 venue. j taken place to the plaintiff, and the articles l>een 
 
 DelVolfe et al. v. Niel el al., I N. S. 1)., 179. I taken and sold, defendant should have shown 
 
 I the judgment on which the execution issued to 
 24. Venue— Change of— Where defendant, enable him to justify the taking and enable him 
 appealing from a Judge's Order at Chambers to sustain his defence. 
 
 discharging an order nisi to change venue from ! 
 Halifax to Baddeck, alleged that he required j 
 
 Held, no misdirection. 
 
 Hannon v. McLean, 3 R. & C, 101. 
 
IT)? I 
 
 TROVKR. 
 
 i:)72 
 
 On a/iii(ii/ Id Ihi Sii/'riiiir ('mirl ti/ Cdiiitiln, 
 
 l/ilil, tliikt till' Slii'iiir wjiH <'Mtitl('il iinili'i' hill 
 pli'iiM Id liiivi! it left t<i the jury •" wiy ulictlmr 
 the |iliiiiitilT liiid nIiowii title nr right nf iminnciI' 
 nidii to the giiiiiN ill i|ii('Ntiiiii, luicl therefore) 
 there wuh iiii>iiIii(<tiiiM. 
 
 Jfrhdi, V. lliuiiwn, :i S. ('. |{., :<MI. 
 
 :i. (onvcrNliui ncn'tidant bccaiiH' Ihc 
 
 lixHcc (if fi'ilikiii |irriiiiMi'H upon wliiili uum ile- 
 poNltcil II i|iiiiiitiiy (if I'liul licliiiigiiig til pliiin- 
 titrn. Shortly after tiikiii),' poMHcuMioii ilrfi'iid- 
 ant Kci'Vfcl pliiintill's with ii written notioe to 
 theetl'eil tliiil if they iliil not reiiiovi' the eoiil 
 lu' woiiM, mill elmrjie tlieni with the exjieiiHu of 
 K'inoving. They piiiil no iitteiitioii to the no- 
 tiei' iinil ilefeliilani tli'.'reii]iiiii eiiiixed nil the eiiiil 
 til he eiirteil iiwiiy anil the yieater part of it ile- 
 utroyeil. Some wiiiall porlioii of it was useil liy 
 IiIh Mervantx, 
 
 //(/(/, that a verdict in trover fur the plain- 
 till'm eiiilld not he di.stmlied, 
 
 Snuii'iii if III, V. Ci(ff' r, 2 N, S. 1>., -1,'iri. 
 
 I. ('<uiv«'r.sloii — Kvld»'in'«' of A cIumiiic, 
 
 payalile to the plaiiitill', or order, was mailed 
 to the plaintitl's aildiess, Iml he did not reeeive 
 it, and it appeal e I that a few dayn afterwardti a 
 youiim' man whom plaintilF had ])reviiinsly dis- 
 miHseil from IiIh emjjloy, had lirought the ehei|ue, 
 with till! )iliiintiH"H name indorsed on it, witli- 
 oiit aiilliority, to \\w hank, and had drawn the 
 money. I'laintifT's attmiiey wrote to defend- 
 ants ileniaiidin|y; the nioiiey, liut not the eliei|iie, 
 and ilefendanln' attorney replied that if plaiiititT 
 would write a letter to the liank declaiiiig the 
 indorsement a ffirgery, and statin^; that he 
 would lie prepared to ^livo evidtnee if reijuired, 
 the amount would he jiaid. I'laintitl's attorney 
 then wrote to defeiiilantH' attorney, askini^ that 
 defendants would jiay or restore the eheijue. 
 The chei|ue was handed liy the Hank to the 
 lilaintiff on condition that he would return it, 
 wliieli he did, hut it was not delivered to him 
 as his own property. 
 
 Hilil, that the demand to pay or return the 
 eheque was a sufficient demand of the che((ue, 
 hut that plaintitl' had no such property in the 
 eliei|ue and no such possussiun of it as would 
 entitle him to maintain the action, and, even 
 if he had, that the defendants' refusal was not 
 such an absolute refusal as to constitute a con- 
 version, 
 
 (Jaaere, whether under the County Court 
 Amendment Act of 1877, c, 6, s. 25, giving an 
 appeal where the judgment is over S40, it is 
 
 Niitlieii'iit that there hIioiiIiI lie a judgment for 
 coMtit to that amount. 
 
 Annanil v. 'J'/u. Mir''hitiiii' llittiK, 
 
 •A H. *('.,.TJ1I. 
 
 il. Cnnvpritlon — Evidrnro of PInlnllir 
 
 hired defendant to travel and sell certain ^immIh 
 for him for cash or approved notes, to return 
 Hiii'h j^'iioils as were not disposed of and aeeoimt 
 for the proce«(lH of those Hold. Defendant hav- 
 ing failed to aeciiiint, this luliim was lirou(,'lit, 
 the deelaration lontainin;^' a count in trover and 
 a eount for money had and received. !)efeiid- 
 ant, havinj.' Iieeii shown plainlitrVaeiroiint for the 
 jioods, hy his attorney, admitted it to lie in the 
 main correct, and otlered t<i Jiay .*I(M» (lieiiij,' li'ss 
 than the |)liiintitl' claimed), which was refused, 
 and on ]ilaintitt"s attorney a.sking defendant if 
 he would neither account for the j;iiods or give 
 them up, nor pay for them, defendant said ho 
 would do lieitiiei, 
 
 l/i'il, that this iiiiswcrwas no evidence of a 
 wrongful conversion, tiieri' lieing no evidencu 
 that tile dcfeiiilant when he made it had any of 
 the goods ill his possession, as he had previously 
 stated to plaintiff's attorney that he had sold all. 
 
 The jilaiiititr stated in his evidence thai de- 
 fcinlant had prnmised to comi^ to his place and 
 settle, and that he (plaiiitill') uuderstnod from 
 tlie defeiidaiil on that occasion that all the goods 
 were sold excejit a few luidlcs. This evidence 
 was not contradicted liy llie defendant. 
 
 //'/(/, that it was not siillicieiil to wuriaiit 
 I lie lonclusion tiiat the goods were sold lor 
 cash, as the defendant was authori/ed to sell 
 for cash or approved notes. 
 
 Sniili/i , that under the evidencu the plaintitf 
 could have recovered on a count for not 
 accounting. 
 
 Wa/Lir V. CiiiiiiIiiiiIkoii, 'A H. fc ('., 1. 
 
 i «. ConvcrMion — Servant, Juc. -Plaintiff 
 
 i was in the habit of hiring liorses and waggons 
 ; to persons renuiring them. During his absence 
 ': from home his wife, contrary to instructions not 
 j to hire li(>i-ses or carriages in his absence, though 
 the evidence on this point was of a doubtful 
 character, hired to C, one of the defendants, a 
 waggon and several horses, to be used in con- 
 veying a gold crusher from I'ort Hood to River 
 Dennis. While the team was crossing a 
 bridge, driven hy U., an experienced driver, 
 who was joined as co-defendant, and against 
 whom alone the action was prosecuted, one of 
 the horses received injuries by getting a leg 
 through the bridge, in consequence of which he 
 died. The plaintifif's writ contained counts in 
 trespass and trover, but the action was treated 
 
\r,7n 
 
 TROVER. 
 
 \'y7i 
 
 thrnuKluiiit an iiiii' nf tri>\tr, A vvnllct having 
 lirt'n fiiiiiul for |iluiiitiir, 
 
 //' /</, tllllt llllTU WIIM 110 UVilU'llCe llf C'llllVlTHioll 
 
 ))y th« lU-fi'Dilunt, I>., iiiiil that lii>, M\m iiicruly 
 till' Ncrviiiit llf I',, (iii^lit not to li«' liclil rcHpoiiHi- 
 lilt' for III! injury wliii^li wiim uiliiiittcil to have 
 Ik'cii lit) iiii'vitalilo acc'iiU'iit. 
 
 .1/i(/7«'"/ V, Dii/haiifi/ ,t at., '2 \. S. !)., '.MH. 
 
 7. ('pnTemlon - I'nnuthnrlzcd Halo of 
 
 (;on(lH liy widow of intentate— Tlic wiilow of 
 uii inti'stiitc iliH|ioMi'il of a pair of oxen lii'loii),'iiig 
 to tilt' iiitt'Htati'M cwtiito for a " liarrol of Hour, 
 I'aMli, ami otiior lliiiigH," aiiiIa|)pli(Ml tlu^ procuudH 
 to iu'r own HiiMtoiiaiict', 
 
 //'/'/, ill an aclionof trover I ly the ailiniiiin. 
 tratrix", that the Imyer Nhouiil have known from 
 the manner of Hale that it wai not made in iliie 
 eonrse <if adminiKtration ; that there waH no 
 reaxonalile jfround for Hupposiii),' that the wiilow 
 had aiithiirity to Hell, anil that a Hale for Hueh a 
 eonHideration wax not a lawful one, or Hiieli aM 
 the adminiHtratrix would have heeii lioiilid to 
 perform in due eoiirse of adminiMtration. 
 
 Mahrr V. /IiMi/, .-> U. Hi. (i., '2'X>. 
 
 8. Crown property - Pliiiiitifr iipplicd for 
 
 a grant of Crown land, ami, wiiile tlu^ appli- 
 cation was pending, defendant illegally eiit a 
 numlier of logs on the land and removed them. 
 The logs were seized liy a Crown surveyor under 
 section .'J of ehapter 12, H, S, (4th series), and 
 were afterwards driven to defendant's mill and 
 sawn up. Plaintiff, having tirst ilemanded the 
 logs, lirouglit trover for them and obtained 
 judgment ill the County Court. 
 
 II(/<I, that tlie Crown was not limited to the 
 condemnation proceedings set out in cap. \'2, H. 
 .'^. (4th series), as the cliajiter did not expressly 
 take away its existing reinodies, hut that, as 
 there was no evidence that the plaintitF had 
 ever had pos.session of tliu logs, the appeal must 
 he allowed. 
 
 Moiynii v. h'ln , 4 R. & (i., 3GS. 
 
 9. Damages in -Excessive— How reduced 
 
 — \V. ('., the master of a merchant vessel, made 
 a voluntary gift to the plaintiff, his daughter, 
 of a Hpy glass. Immediately afterwards he pro- 
 ceeded on a voyage and was lost at sea. De- 
 fendant obtained possession of the glass from 
 the plaintiff, promising to return it to her, but, 
 having been appointed administrator of W. C, 
 of whom he was a creditor, instead of returning 
 the glasn, he had it appraised and sold it. 
 Plaintiff thereupon brought trover, to which 
 defendant pleaded : (Ist), denying the conver- 
 sion ; ('2nd), denying the property in the phvin- 
 
 titl'; ami, (.'ird), alleging that tlu^ gJaKs was the 
 property of the deeeaHi'd, of whom defendant at 
 the time of the alleged taking aiiil coiiversioii 
 wiiN adminiMtrator, and that iim >fuch he trxik 
 and retained, etc. 'I'lui jury found in favor of 
 plaiiititr for .f.'i.'ti) damageM, 
 
 I/i/it, /iir WilkiiiM and DeHllarroH, J. I., Dodd, 
 .F,, coiieurring, and Sir \V, Young, C. d., and 
 .MeCidly, . I., <//<ii /(^i«i/, that plaiutiir, being in 
 poMMeHHiou at the time of the taking, had a clear 
 right, even without title shown, to iiiiiiiitaiii 
 the action against the defendant, who was a 
 mere wrongilner. That the defendant was not 
 a creditor within the meaning of 1,'ith KM/.., c. 
 !\, but that even had liu been Hiieh, he being 
 administrator, could not as such creditor he per- 
 lllitted to impugn till' gift, even if tlie estate 
 were in.siilvent and otiier ereditor.s were proved 
 to exist. That could only be done by the latter 
 or some one of them acting for hiinself. The 
 i|Uestioii of fraud in reliUiou to a voluut.irv gift 
 is in etl't'it a ijiiestioii of frauihileiit intention iii 
 till! donor's lirea.st existing at the time of the 
 
 .\ piovi'd creditor alone can impeach a volun- 
 tary conveyance as fraudulent against creditors, 
 though wh -11 it is .so avoidi'd, it is avoided for 
 the benetit of all the creditors. The creditor 
 must |)iit himself in a position to complain liy 
 obtaining judgment for his debt and shnwiiig 
 that by the settlement he is defrauded. 
 
 C'Irirh v. riilhrloii, •_' \. S. 1)., 'MS. 
 
 10. Dercncc in County Court tliat ttio 
 
 value of the goods is under $200 - 
 
 S>, PROHIBITION, - 
 
 11. Delivery of goods to carrier - Con- 
 structive — Where the plaintitT gave evi<lence, 
 uncontradicted, that defendant, the captain of a 
 vessel, told her to send her goods to a certain 
 wharf, and that she sent them there, 
 
 III III, tiiat there was evidence of a construc- 
 tive delivery to the defendant, which imposed 
 on him the duty of looking after plaintiff's 
 goods and taking them on board. 
 
 Morriion et al. v. Thompson, '2 R. & C, 411. 
 
 i 12. Demand and refusal— Plaintiir brought 
 
 action of trover and trespass for nets alleged to 
 I have been run over by the M. A. .Starr, of which 
 j defendant was master, and judgment was given 
 in the County Court for plaintiff. 
 
 Held, that the presence of the steamer at the 
 place where the nets were fouled was no evi- 
 dence of negligence, as there was uncontradicted 
 evidence that they were not fouled in the place 
 where they were set, but had drifted. 
 
1575 
 
 TROVER. 
 
 1576 
 
 HeM, further, that a demand of satisfaction ' 
 for the nets destroyed was not a sutiScient de- 
 mand on which to base an action of trover for 
 the remnants of the nets taiten on board the 
 steamer and saved. 
 
 Per Thompson, J. — That even if thert was 
 evidence from which the County Court Judge ; 
 liad drawn an inference of negligence from the 
 vessel being out of her usual course, such infer- 
 ence was open to review on appeal. I 
 
 Weatherbe, J. , disxentinij , found that there ' 
 was evidence enough for plaintiff to prevent a ' 
 non-suit, and the Court could not on appeal \ 
 review the finding of the Judge on the facts | 
 where the only ground in the rule for appeal 
 was that the jud^'nient v.as against evidence. 
 
 Barrett v. Suttis, 5 R. & (J., 262. ' 
 
 13. Demand and rcftisal — The plaintiff 
 
 as assignee in insolvency brought an action of 
 trover for goods which had been conveyed by '. 
 one Ren wick to defendant in contemplation of 
 insolvency. The goods had been sold by de- | 
 fendant before action brought. 
 
 Held, that evidence was not necessary of a 
 •demand and refusal. I 
 
 Bli-jh V. Darling, 3 R. & G., 248. 
 
 U. Gratuitous bailment — Lien, &e. - A 
 
 watch was left by one Von Schoern with the 
 plaintiff for repairs and when called for two 
 days afterwards was not :eady, whereupon 
 plaintiff loaned to Von Schoern a watcii to be 
 kept till the repairs were completed. The 
 watch so loaned becoming out of repair in Von 
 Schoern 's hands was taken by him to defendant 
 for repair and defendant loaned Von Schoern 
 another to use in the meantime, with which 
 Von Schoern absconded. Plaintiff learning that 
 his watch was at defendant's shop, demanded it; 
 defendant refused it, setting up a lien for re- 
 pairs. 
 
 Held, affirming the decision of the County 
 Court, that the loan of the plaintiflf's watch to 
 Von Schoern was a mere gratuitous bailment 
 ■existing during the mere pleasure of tlie lender, 
 passing no special property to Von Schoern, and 
 the defendant could not set up any lien for the 
 Tepairs. 
 
 McDonald v. Stirskei/, 3 R. & C, 520. 
 
 15. Hiring, lease, Ac.— In an action of 
 
 trover for a pair of oxen the learned Judge of 
 the County Court found the foUov.ing facta : 
 C H. D., the owner of the oxen in dispute, 
 delivered them to H. under an agreement that 
 the latter was to have their use for a year or 
 
 more for their keep. H. , pretending to he the 
 owner of the cattle, executed a bill of sale of 
 them to the defendant, who permitted H. to 
 remain in possession. H. afterwards returned 
 the cattle to C. H. D., the owner, who then 
 sold them to plaintiff, who was a honajide pur- 
 chaser for value without notice. 
 
 Held, per McDonald, C. J., that there being 
 evidence to sustain the findings of the J) .Igo 
 below, or the evidence on the part of the defend- 
 ant not being of a character to induce tiie 
 Court to reverse them, the arrangement made 
 by C. H. D , with H. was not a hiring lease or 
 agreement for sale within the letter or the spirit 
 of the Bills of Sales Act, c. 92, oth R. S., s. .S. 
 
 Per Weatherbe, J., that though the evidence 
 for the defendant as to the terms upon whicli 
 the cattle were held by H. was of a suspicious 
 character, it would have necessitated the grant- 
 ing of a new trial had not the defendant, l)y 
 permitting the cattle to remain in the possession 
 of plaintiff for 18 months after the purchase, 
 caused the latter to alter his position by incur- 
 ring expenditure in regard to them and by being 
 prevented from taking steps to secure the return 
 of his money. 
 
 Lewin V. Denton, 7 R. & O., 2.'J.') ; 
 7 C. L. T., 323. 
 
 16. lien for repairs— A chronometer was 
 
 left by the plaintiff with the defendant, a chrono- 
 meter and watch maker and repairer in Halifax, 
 with instructions as sworn to by defendant to 
 put the instrument in order. Defendant ou 
 examining it, found that it required repairs of 
 such a nature that he was obliged to send it to 
 Boston to have it made right. Plaintiff refused 
 to pay the amount charged by the Boston 
 mechanic, and, on the defendant's refusal to 
 deliver up the instrument, brought an action of 
 trover. On the trial plaintitf stated that he had 
 not ordered any repairs to be made beyond 
 polishing, &c., for the price of which an ample 
 tender made before action was proved. The jury 
 found for defendant, stating that they accepted 
 his version of the instructions given when the 
 instrument was left with him. 
 
 Held, that the defendant had a lien for the 
 charge made by the Boston mechanic, and was 
 justified in refusing to deliver up the instrument 
 until the bill was paid. 
 
 Wilkins, J., diituntiwj. 
 
 Webber v. Coyaivell, 2 R. & C, 47. 
 
 On appeal to the Supreme Court of Canada, 
 Held, affirming the judgment below, that the 
 rule nisi for a new trial should be discharged, 
 and, as no fault was found with the work done, 
 
1577 
 
 TROVER. 
 
 1578. 
 
 the respondent hud a lien until he was paid his by defendant's counsel at the trial, and no cases 
 
 charges. in support of it were cited at the argument. 
 
 Wtlibtr V. Coifiicdl, 2S. C. R., 15. w i^' i • j i d t .. m 
 
 ' MorriHon v. ttxhinvk, 1 R & (J., ,59. 
 
 1 7. Pleading — Conversion - Possession — 
 
 Coats, verdict set aside without— Agent act- 
 ing beyond his authority— PlaintifT in Novem- 
 ber, 1876, at the request of one McKinnon, 
 shipped by defendant's steamer certtiin goods of 
 which he took a bill of lading, requiring them 
 to be delivered to the order of the shipper at 
 Bayfield. At the foot of the bill of hiding was 
 a memo, stipulating that the goods were to be 
 taken from alongside as soon as the vessel was 
 ready to discharge, otherwise to be landed by 
 the master and warehoused at the expense and 
 risk of the consignee. 
 
 Plaintiff first charged the goods to McKinnon, 
 Init afterwards, on the same day, to one Thomp- 
 son. On the 8th November plaintifJ wrote 
 McKinnon : " We are this day shipping yriur 
 goods per M, A. Starr. We have drawn on you 
 for S41'2 on account. Please protect draft." 
 No one being present on the arrival of the 
 steamer to take charge of the goods for the con- 
 signee, they were warehoused, and the day after 
 McDonald, tiie keeper of the wai-chouse, which 
 was the property of a company in which it did 
 not appear that defendant had any interest, de- 
 livered the goods to McKinnon. There was 
 evidence of an understanding between McKin- 
 non and Randall, the defendant's agent at Bay- 
 field, that the former was to deliver all goods 
 unless forbidden by Randall. McKinnon dis- 
 honored the draft at mivturity, and plaintiff 
 then for the first time indorsed the bill of lading 
 to Thompson, who demanded the goods from 
 Randall, after which the plaintifiT brought an 
 action of trover. 
 
 Held, that under 4th R. .S., c. 94, ss. 164 antl 
 166, defendant could not under a plea denying 
 the conversion, avail himself of the defence that 
 the goods were not the property of the plain- 
 tiff; that the goods had been lawfully ware- 
 housed by the defendant ; that the possession 
 of the warehousemen was not the possession of 
 the defendant, and their failure to deliver the 
 goods did not constitute a conversion by de- 
 fendant ; further, that even assuming that 
 Randall had caused the goods to be delivered to 
 the wrong party it did not follow that defend- 
 ant was liable, as Randnll was merely his 
 general agent and had no authority from him to 
 interfere with the goods or direct McDonald to 
 interfere with them after they were warehoused. 
 
 Verdict for plaintifiT set aside without costs, as 
 the view taken by the Court was not presented 
 
 18. Pleading — Departure — Evidence- 
 In an action of trover for logs, defendant pleaded 
 denying plaintiff's property and possession, and 
 plaintiff replied setting up an ccjuitable right to 
 the logs. The Judge at nixi jiritis ruled that 
 there was a departure in the pleadings on the 
 part of the plaintitf, who had in his replication 
 set up an ecjuitublc interest in the property in- 
 stead of the legal right asserted in hisdcclaration, 
 and he directed the jury to find a verdict for 
 defendant, which they did. 
 
 The Court refused to set aside the verdict. 
 Smith, ,T., holdiii;; that there was no evidence of 
 proppr- • u! ;' plaintifiT. 
 
 N'; t '' Mild, J., that the replication was only 
 
 a reply to a bad plea as shown by the pleadings. 
 
 Chrimie v. Thomas, 3 R. & G., '203. 
 
 19. Plea in trover denying piaintiir'» 
 
 property — When./H.< iitiii can be set up under 
 such plea — In an action of trover for quartz, etc., 
 defendant pleaded denying plaintifiT's property 
 in the goods, and gave evidence that tlie [jroperty 
 had been seized under execution against the 
 plaintiff and sold to a third party. The plaintifiT, 
 at the time of the alleged conversion, was out of 
 possession. 
 
 Held, that as the plaintifiT was out of posses- 
 sion, defendant could set up the j'lt ttrtii under 
 a plea denying the plaintiflf's property. 
 
 CamphfJl v. Yeadon, 5 R. & G., 212. 
 
 20. Possession, riglit to, at time cause of 
 
 action accrued sufficient to support trover — 
 Not necessary to have such right at time of 
 action brought — Wrecked property abandoned 
 to underwriters and assigned to them by in- 
 dorsement of the bill of lading by the owner of 
 the goods may notwithstanding be recovered in 
 an action of trover brought against parties ille- 
 gally in possession in the name of the owner of 
 the goods for the benefit of the underwriters. 
 It is not necessary for a plaintifiT in trover to 
 have a right of possession in the goods at the 
 time of action brought, provided he had such 
 right of possession at the time the cause of ac- 
 tion accrued. 
 
 (ioods assigned in troTisitu by indorsement of 
 a bill of lading may be revested in the assignor 
 by cancelling the indorsement on the bill of 
 lading. 
 
 Stalktr et cU, v. PVier ei ad., James, 248. 
 
157:> 
 
 TROVER. 
 
 15,S0 
 
 til. I'oNsesHion upon which to maintain 
 
 trover — I'laintitl was iiitnistuil « itli tlie posses- 
 sion of ct'itain gucxls l>y the owiilt, wlio was 
 alioiit tci Usivi' the I'roviiice, to Ije forwarded to 
 liiin. With tliis intention tiie goods were sent 
 to a wiiarf to Ih' sliipjjed l>y a vessel tlien lying 
 tliore, l)iil tliere was no formal delivery to tile 
 master or any one on l)oai»l. The defendant, 
 whosJKiwed no justitieatiou, eauseil the goods to 
 he taken and sold. 
 
 IIilil, that until tiie assent of tiie master of 
 the vessel to reeeive the goods was shown, they 
 remained in the possension of the plaintitt', a 
 special owner, so as to enalile him to maintain 
 an aetioii against a wrong doer. 
 
 .•^uii/onl V. /loir/is, -A X. S. 1)., .S(»4. 
 
 22. Kcprcsentution, tie. One Niohoison, 
 
 lieing indehted to plaintitl', gave him a horse to 
 he sold towards the satisfaction of the clelit. 
 I'laintill' swapped the horse witii one Haidwick 
 for a eolt, informed Nicholson of tiie trade, tixed 
 tiie value of tlie coll at !?."). 40 more tliaii tlie 
 deht, and paid tiiis amount to a ereditoi' of 
 Nicliolson in final settlement. Uardwick after- 
 wanls liecame dissatislied witli tlie trade, in- 
 sisted on iilainliff giving back the colt, and ap- 
 ])lied lo M., an attorney, wlio wrote plaintitl'. 
 I'laintitl' cailcil on tlie attorney, and according 
 to the evidence of the attorney, declared to liim 
 that the horse was Nicholson's. According to 
 plainliir's evidence, not contradicted, he slated 
 to him tiie ariaiigemcnt l)etween himself and 
 Nicholson in reference to the horse, as ahove set 
 out. On tiie same day, and previous to the in- 
 terview, M., actini,; as atlovnej- of other parties, 
 had entered ui) a judgment against Nicholson, 
 and the Judge of tlie County Court found tiiat! 
 the attorney had, on the faitii of plaintitl''s 
 statcmtiits that tiie iior.se was not his, luit 
 Nichol.-on's, caused the defendant, the Sheritl', 
 to levy on it in plaintiil's possession, and that 
 plaintitl' liad alistained from .'ooking after other 
 ])roperty of Nicholson, wiio was a mere tran- 
 sient employee. IJefore any exjienses had lieeii 
 incurred in keeping the iiorse, and ijefore the 
 sale, the plaintitl' notified tiie Sheritl' tliat the 
 horse was iiis. 
 
 Held, ill accordance witii tiie previ<jus ruling 
 of the Court ('A H. & C, Vil), tiiat tlie plaintiff 
 was not estopped from setting up his ownership 
 of tile iiorse. 
 
 /'( /• Weatheriie, J., that the representation \ 
 was not made with tiie intention tiiat tlieexeeu- ! 
 tion creditor or the .Siieritl' .siiould act on it Ijy 
 seizing the iiorse, and it could not Ije reasonalily 
 inferred that sucii was the intention ; and fur- 
 ther, tiiat the assertion of plaintiff liad not been 
 
 made l>aUliy, but witii a ijualitieution explana- 
 tory of tiie arraiigeinent aiiove referred to, from 
 wiiicli it seemed reasonaliie that tiie attorney 
 iiad acted ratiier on tiie iielief tiiat tiie iiorse 
 could lie siiown to lie Nicholson's than uiion llie 
 mere assertion of plaintifl' that it was .so. 
 
 McKay v. liomutt, 2 K. &(:., !)ii. 
 
 23. Sale of fish, Ac.-D. S. stored a lot 
 
 of tisii with defendants, which lie afterwards 
 sold lo H., giving him a memorandum iieadccl 
 " K. Ixiught of 1). S." signed by the latter, li. 
 paid half in cash, and gave I). S. a note foi' the 
 balance, which was indorsed by defendants, 
 and retired liy them at maturity. ]\., aftei 
 the sale, l>ecaiiie insolvent, and plaintitl', his as- 
 signee, produced at the first meeting of creditors 
 a slatemeiil c,f assets, the first item of which was 
 "•j;{li bills, mackerel stored at lilack Urothers," 
 defendants. Due of the defendants altendtd 
 tlie ineeling and saw tiie statement, remarking 
 to those present tliat he was not aware of any 
 fish of H.'s storeil with tlieiii, inil he gave no 
 sucli intimation to the assignee or inspector, 
 and, long after, tlie defendants maile a chiim on 
 the estate for tiic anioimt of the note, stating 
 that tiiej' held no secniitj', and a dividend was 
 [laid them. The assignee having Ijrouglit an ac- 
 tion of trover for tiie fish, recovered a verdict. 
 //(/(/, that tile defendants had no right to re- 
 tain the fish, no claim of lien having liceii set 
 up, and that by holding the note and claiming 
 for the amount on the insolvent estate, tliey 
 would have lost all right to retain possession of 
 the tisli, if they hail ever had any such riglit. 
 llail, Afitiiiiid , v. Trooji tt rt/., '2 K. tV: (i., 351; 
 
 2C. L. T., !).->. 
 
 Oil ((jijKii/ lo Ihi Siijirnni C'oiir/ of Canada. 
 
 Ill Id, Strong, d., i/iiiiutiiiij, that the ajipel- 
 lants having failed to prove the right of properly 
 ill themselves, upon wliicli tliey relied at the 
 trial, the lespondciit had, as against the appel- 
 lants, i. right to tile immediate possession of the 
 fisli. 
 
 •J. That S. had not stored tlie fish witii ap- 
 pellants by way of security for a debt, due by 
 liiin, and as tlie appellants had knowledge tliat 
 the fish sued for were included by tlie insolvent 
 in tlie statement of his assets, to wliicli state- 
 ment they made no objection, but proved against 
 the estate for the whole amount of insolvent's 
 note, and received a dividend thereon, tliey 
 could not now claim tlie fii^h or set up a claim 
 for lieu tliereoii. 
 
 7'roo/t V. Ha7'f, 7 S. C. K., Sl'i; 
 2C. L. T., 2o\. 
 
1)81 
 
 TRUST. 
 
 1582 
 
 24. Stoppage In transitu -PlalntllTs, mcr- 
 
 cliiuil.s, doing liiiMiiiit.sM in Bostmi, U. S., siiippoil 
 II i|Uiintity cif nil to A. it Co., iiiurL'liiinls in 
 Hiilifiix, \. S. liotwuL'ii lliu slii])inent of tlic 
 oil iuitl itH iiirival at tlic hitter port, A. & Co. : 
 lit'Liimu insolvent, hut previonM to their a.ssigii- I 
 inent, for the |)uri)o.seof protecting the .-(hipiiei'M, 
 luiii without any intention of accepting or tak- 
 ing ileliveiy of the oil, or exerei.sing any contiol 
 over it on their own account, l)y a custom iiou.se 
 order made ))efoie the goods were dischai'geil, 
 transferred the oil, together with the bill of 
 lading, to (i. it Co., to lie held for and on ae- | 
 count of the shipper.s. The oil having lieen j 
 claimed liy the creditors <if A. it Co. under the 
 assigmnent, 
 
 l/i/i/y tiiat the transitus had not lieeii com- 
 ))lcted, and tiiat llie stoppage liy (i. it Co., act- 
 ing for the plaintitl's, was good. 
 
 Itifhiirihoii 1 1 III. v. 't'li'iiiiinj 1 1 (1,1., 
 
 ■_• N. S. !)., -.'.Sl. 
 
 25. Trover for house, Ac. Plaintilf, in 
 
 July, INTO, agreed to sell certain land to one 
 lleynolds, who entered into possession under an 
 agreement to pay the ))urehase money in October, 
 ISTl*. l{eynolds removed a house to the land and 
 contimieil in |)nssi'ssicin for a period of alioul eight 
 years, after wiiicli he left the land and sold the 
 house to defendant, who assisted in icmoving it 
 from the land. I'lainlitl', sulisLM|uenlly to the 
 agi'cement to purchase, executed a inoitgage of 
 the ])roperty, the date of which does not appear, 
 but liie mortgagee never entered into possession. 
 Tiu' evidence a.s to tlie nature of the attachment 
 of the hou.se to the soil was coullicting, but it 
 had bi'cn occu])ied as a dwelling house, had a 
 cellar under it in which vegetables were i)rotecte(l 
 from 1 lie winter, rested partially on stone, and 
 had a drain to the depth of live feel to a neigh- 
 boring brook. I'laintiir brought trover for tiie 
 house, and the jury found for defendant. 
 
 Ill hi, that the house was part of the realty, 
 and on being severed became the per.sonal 
 property of tlie plaintiir; that the plaintiti' was 
 the ])idper party to bring the action, as the 
 mortgagee could not do so before entry. 
 
 .Smith, .1., h< <it(V(li . 
 
 McDonald, .]., disxi iiliti'j, held that the mort- 
 gagee had the legal title to and constructive 
 possession of the property, and therefore plain- 
 till' could not sustain the action. 
 
 liiyuolih V. Ihihmau, 'J U. it (i.,4r)9; 
 •2C. L. T., -JGl. 
 
 2tf. Trover is maintainable b} the owner 
 
 of jn'operty against the purchaser where a third 
 party, to whom the owner has given the use of 
 
 the properly, has .sold it without authority ; 
 the rule is, that wheie there has lieen a misuser 
 of the thing lent there is an end of the Itailment, 
 and trover is maintaiiuilile. 
 
 SiU.'ji v. .W-/'i/, "J N. .S. I)., ;{•_'.■). 
 
 27. Trover wili lie in this Province for 
 
 minerals which have been taken from a mine, 
 out of thi.s Province, and removed here. 
 
 (Illll'f v. fills Coilljiltlll/, ,]ni\w^, '-. 
 
 TRUST. 
 
 1. Acceptance of Presumption — The 
 
 Court will not direct a jury to presume the 
 ai;ceptanee of a trust, created by devise, when 
 there has l)een tifty years adverse ])ossession, as 
 against the trustees, there being no evidence of 
 such acceptance, and all the facts being opposed 
 to such presumption. 
 
 Affhiliiihl V, ll/oi--, .lames, .SOT. 
 
 2. An executor and trustee who has by 
 
 his pleas admitted that he has funds of the tes- 
 tator's estate in his hanils, may lie compelled at 
 the suit of his co-executor and co-trusteo, on 
 suflicient groinids shown, to pay such funds into 
 Court, and al.so to lodge in Court all secuiitie.s 
 representing such f\inds. 
 
 J)iiii/i/iy il al. V. \\'a//a<:c, 1 Old., liSX 
 
 ;j. Conveyance l)y trustees to themscives 
 
 and others — Where two as trustees conveyed to 
 themselves, and live others not trustees, hclil 
 that the title was sutliciently conveyed, and 
 that the lease niaile liy the seven could be held 
 to lie the lease of the live, who were certainly 
 able to leaae. 
 
 \hiain, if the two tiustees eoidil not have 
 conveyed to themselves alone as tiustees. 
 Ltssf'.t' of /tiijiloir tf al. \. Xof/oii, •JTliom., u'S.S 
 
 4. Dealings with trust funds Trust funds 
 
 .settled on a marrie<l woman, for the benefit of 
 her.self and children, were expended by her anil 
 her husband contrary to the ])rovisions of the 
 deed of settlement. The husband afterwards 
 repaid to the trustee, out of his own earnings, 
 the amount so expended, but while repaying it, 
 he said that he wished to make his wife a pres- 
 ent of a horse and waggon. The amount so 
 paid was drawn by the husband a day or two 
 afterwards out of the bank, ami a checjue given 
 him by the trustee, and a horse and waggon 
 bought with part of the money. The articles 
 
1583 
 
 TRUST. 
 
 1584 
 
 were used liy the wife, iiiid iiIbo liy the huHhiiiid 
 (who was a phytiieiaii), in his jiruclice. 
 
 One witness said tliat tiie horse and wajigon 
 were placed in his diarge hy tlie wife, witli in- 
 structions not to give tliem to her husliiind 
 without her onlera, whicli instructions, lie (wit- 
 ness) said he olieyed. 
 
 IhUI, that the horse and waggon were not 
 
 trust property, but the property of the husliand, 
 
 and coidd he taken on an execution against him. 
 
 <ii/jiiu V. Hairyir, 1 Old., ">,S4. 
 
 5. Dealings with trust property - Caleb 
 
 I'utnani conveyed a lot of land to the persons 
 named in tiie deed, for the purpose of liuilding 
 a I'reshyterian church and for a burial ground, 
 to hold to the said grantees for the aforesaid 
 purpose only. 
 
 Hdd, that e\en thougli the grantees unani- 
 mously concurred in changing the use of tlie prop- 
 erty from that of a Presbyterian church, &c., 
 such change coidd not be etl'ected, but the prop- 
 erty, on being applied to other uses than those 
 for which it luid been conveyed, would revert. 
 Dowihi." it «/. V. //(lifts it al., R. E. !>., 147. 
 
 6. Executors— Relieving and appointing 
 
 others — Where some of several co-executors 
 apply to be released from the trust, the Court 
 will re(iuire other co-e.xecutors to be brougiit 
 before the Court ))efore tiiey will refer it to a 
 Master, to report on suitaldeness of persons to 
 be substituted. 
 
 In the. Esialt of Tohiii, 2 Thoni., 3.38. 
 
 7. Grant to Township or land for school- 
 Charitable trust — Acceptance of, by trustee- 
 Discretion of trustees— Doctrine of cy pres- 
 
 ets SCHOOL LAW, 7. 
 8. Instrument creating trust — Thos. S. 
 
 Crow, an ordained Presbyterian minister, and 
 David and Jacob Frieze, Presbyterians and mem- 
 l)er8 of his congregation, purchased a lot of land 
 in 185.3 for the purpose of building a house of 
 worship, and for a burial place for that part of 
 the congregation residing in its neighborhood, 
 and having erected at their own cost a place of 
 worship, and fenced in the land, conveyed the 
 land and building in 1854 to W. McDonald and 
 other persons, thirty in number, by deed in 
 which it was stated that the land had been pur- 
 chased for a Presbyterian church and cemetery, 
 and that the grantors had agreed to sell the land 
 and church on the same terms .and for the same 
 use as they held them. The deed proceeded to 
 convey to the said thirty persons in fee simple 
 thirty-eight forty-fifths of the land and buildings 
 
 (reserving seven forty-fifths to Ihcgrantors) to be 
 hchl in common by tiie grantees, but as separate 
 and sole owners of the pews on which tiieir 
 names were recorded on a plan annexed. 'I'lic 
 persons to whom the deed was given were then 
 Presbyterians, and Mr. Crow was a minister of 
 that church, and after he ceased to othciate, a 
 Mr. McLellan, who had been his colleague and 
 succeeded him, otUciated there until 1871. He 
 was a regularly ordained minister of the Presby- 
 terian church, but alxiut that time charges were 
 preferred against him by his congregation. He 
 first appealed to the Synod at Truro, but after- 
 wards intimated that he had joined the Coiigre- 
 gationalists and was thereuptjii deposed, some 
 of tiie congregation seceding with him. The 
 ■• plaiiititi's (as I'resbytcrians) and the defendants 
 (as Congrcgationalists), each claimed the exclu- 
 sive right to the lot of land and building. 
 I Iltkl, that the intention of the parties being 
 ! clear and uneijuivocal, that the house of worship 
 I was to be for the use of Presbyterians, the Court 
 must carry out that intention and could not 
 recognize the riglit of the defendants, even if 
 C(ini|)rising a majority of the congregation to 
 defeat such intention, tliougli it might l)e otiicr- 
 wise if tiic congregation were unanimous. 
 MvJJoiiiiul tt ul. V. Ilauxii (-t al., K. E. D., 147. 
 
 9. Liability of trustee for investment —A 
 
 testator, by iiis will, devised and beijueathed his 
 real and personal estate to his wife and another, 
 executrix and executor, in trust, to sell the 
 same and invest the proceeds in the best secur* 
 ities they could obtain, and upcm the coming of 
 age of the testator's children, to divide tlie 
 money among the children and the widow, in 
 specified proportions. The executor, v/ith the 
 consent and ac<iuiescence of the widow and exe- 
 cutrix, loaned a part of the trust funds to mer- 
 chants engaged in ship building, wiio afterwards 
 became insolvent and unable to repay the money. 
 //eld, that the trustees were not justified in 
 investing the money on personal security, and 
 must make good the loss to the children, but 
 that the widow could not make the co-trustee 
 liable to her for the loss she might sustain, hav- 
 ing acquiesced in the investment. 
 
 \ Perky el al. v. Snow el al., R. E. D., 373. 
 
 I 
 
 10. Liability of trustee for investment- 
 Trustees were sought to be made personally liable 
 for a sum invested on mortgage, on the ground 
 
 I that they had invested on a second mortgage, 
 
 ' and on property of which the mortgagor only had 
 
 i title to a part. Before making the investment 
 
 the trustees had been advised by their solicitor 
 
 as to the value as well as the title, the solicitor 
 
 considering it a first rate security. The whole 
 
1 580 
 
 TRUST. 
 
 1)86 
 
 pnipiirty was valiifil iit S.'siMM), ilu- lirst iiiint- ' «l'i'li would l.u protcctud, ami riglit.i which 
 gago ainoiiiitf.l to only .■:!l,l.'IK», and the iiioit- "ould l>f .niforuud liy tho ( 'ourt. 
 gaf,'or'.t iiitertist in tho leniainiiii,' S'A,SW ua.s , (-'.) That tho wonls used in tho lU'fds " triis- 
 two-thiids, amounting to S'_',.'.,T.', leaving a mac- , ''^''-''" &*;•. justitii-d a It-gal infiMvuce of knowledge 
 gin of !i|,l7l)overandaliove tlie amount loaned '"• l'"" I'i'it of the plaint ilT of the existence nf tli.' 
 Iiv the trustees. tiiisl for tlie henetit of A. M. ('., which placeil 
 
 /Mil, that, even if the security was not lirst ^hc plaiulitl', with respect to tiie rigiits ..t the 
 class, the trustees, having lielicved ii to I.e good, int'i'". 'n "o lielter position than the trustee, 
 could not he held liers.mally lial>le for delieiency. ^ ''''^ appeal was allowed. 
 
 4iii K. S., c. KtS s. •J4. I'ifr/i V. (Jiirrii tl ft/., 7 R. & (i., .">!?•_' ; 
 
 li( /■' Chn^i Cluirrh, /Jiir/minifit, R. K. I)., 4(m. I ^ ^'- '- '•'•• •"'"■ 
 
 13. Possession of trustees iippolntcd by 
 
 Act, held pos.se.s.sion of <<v//(/., i/in inti'iiii — In 
 .Vugust, ITSS, \V. Freeman, in eoii.sideration of 
 a liuilding to he erected for a Court House 
 anil .lail at Amherst, conveyed certain land to a 
 iinnilier of .Justices of the I'eace for the t'ouitty, 
 naniud in the deed, and their associates ; hahiii- 
 iliiiii to them and tiieir successors in trust for the 
 
 II. Trustee, liability of-l'mvisioii in a 
 
 will that defendant sliould hold laml, iVc, ill , 
 trust to cidtivate, demise, let and manage the 
 same to the hest advantage for testators daugh- ^ 
 ter, without impetiehnient of waste, j 
 
 //'/(/, not to exonerate the trustett from re-' 
 spou.sihility for wasting tiie trust property, hut 
 simply to empower him to do "such acts as he i 
 eouhl do if a tenant who was not acc.mntahle •'"""^3' '>f <-'umherland forever. 'I'he Act of 
 for waste. '" IsfS, c. "28, after reciting the cxccLition of this 
 
 //>/</, /iir/h<r, that the trustee imder such de- 'l''^'''' ^''" I'lii^'ti"" of the Court House ami .lail, 
 vise was not ol.liged to work a mill ..n the trust '""^ '•''^" ''^■'^'-'' "^ *''^' trustees mimed in the deed, 
 property ; ami that if the trustee was muil.le to "'liK-'H^'l I'l'i'l the (irand .lury and .Sessions should 
 procure a snitahle tenant, he ought not to !,„ , iipP"'"'' ti">"*tccs, to he a hody corporate hy the 
 held answerahle for tiie unpfo.lucliveness of the : '"""« "f " tl'i^ Trustees of the Amherst Court 
 pioiiertv House grounds," in whom was to vest the 
 
 H,/<l,/„r/h,r, that the defendant, in selling •'■^'•^1 ^^«''^t^^ '" l'"' '■''"' '" 'li'i-^t'"". piovide.l, 
 the grass uncut at auction, in.stead of making it '"»""« "ther things, tiiat the Act sliouhl not 
 into hay and storing or di.sjiosing of it as such, i"tcrfere with the management and cntrol 
 had i.ursue.l a course wliicli lie was, under the tl>i-'i'^'>f ''«'"g vested in the Sheritr for the time 
 circumstances, at liherty to mlojjt. i '"^'"«- '1''"'* ^""^ continued for six years, hut 
 
 Vtrnon ttal. v. S,:cman, R, !]. ])., HHJ. ' '>'-'f"''« '^^ cxpirati.m, the lirst edition of the 
 
 Revised .Statutes was puhlished, which hy c. !)7, 
 provided for the appointment of "Trustees of 
 I'uhlic I'roiierty," in each C'ninty, and vested in 
 
 I'i. Mortgage eirected by trustee on pro- 
 
 perty o( rciliti <]ni frii.if — Suit to recover bal- such trustees "all lands granted, reserved or 
 ance due — Notice of trust to mortgagee, dedicated, (.r which had for twenty years hefore 
 effect of — Jn a suit in the Ki|uity Court to the passing of said chapter heen used for piddic 
 recover a halance claimed hy plaintitlas due on purposes in tiie County." The .Statute con- 
 a mortgage, judgment was given in that Court taincd a clause declaring that the jnovisions of 
 in plaintirt's fav<jr. On ap[)eal, it appeared , that chapter "should not affect any lands or 
 tiiat the defendant, J. C, had received a sum of , ))uihliiigs then vested in trustees, or the neccs- 
 money helonging to his infant son, A. M. C, to j sary control of the ISheritf over the Court House 
 invest in real estate. He apprijpriated a con- | and Jail." This .Statute was re-enacted in each 
 sideralde portion of the money so received to successive edition of the Revised .Statutes, 
 other purposes. .Subsequently he purchased a ! Sheriff Chandler luul held possession of the 
 property from McD., taking the deed to it iiu- , property as .Sheriff, and his son had paid rent for 
 self as " trustee of A. M. C, of the City of H., , it up to 18.")1, and on the appointment of the 
 an infant." For the purpose of raising the pur- I defendant as .Sheriff, late in 18.")S or early in 
 chase money of the property so bought, he gave i 18,")9, he ha<l taken possession from the son of the 
 a mortgage to the plaintiff, in which he described , former .Sheriff. Defendant also claimed under 
 himself as " trustee of A. M. C, of the City of a deed from Chandler, the former Sheriff, but it 
 H., an infant." appeared that in 18(i"2 he had voluntarily accepted 
 
 Hfhl, (1.) that as between the trustee and the 
 ccMui que. trmt, the deed to the former gave 
 the latter an interest in the laud purchased 
 53 
 
 otiice .as one of the trustees of public property, 
 and acted as such until 1875. 
 Hdd, that the moment the Act of 18-18 ceased 
 
1587 
 
 TRUST. 
 
 loss 
 
 to have cffeut the liiixl vi'sted in tlie trustees 
 appointed under Revised Stiitutes, Ist series 
 (1851), and tlmt apart from tlie effect of tiie 
 Revised Statutes of I8,')S, vesting tlie property in 
 the trustees subseciuently a|)pointed within 
 twenty years of the eomnieneenient of tlie action, 
 tlie phiintiffs liad not lieeii twenty years out of 
 possession at tiie commencement of the action, 
 as the possession of tiio defendant and ids 
 associate trustees from ISti'J to 187."), was tlie 
 possession of the plaintiffs. Jfdnder of the 
 Trustees of the Amherst Court House grounds, ' 
 addeil undcran amendment ohtaincd at the trial, 
 hdil mere surplusage, i 
 
 Thi' 'JViix/if of Pulilic i'ropi r/i/fof thr 
 County of Cnmhn-laud v. AVer, .S R. & C. , 317; 
 
 1 C. L. T., 708. 
 
 14. Possession of trustee — Cestui que 
 
 truxl — The adverse possession of a widow 
 
 cfMui qm truxl as against the trustees will enure 
 
 to the lienetit of lier children lieiug also Cdilui'i 
 
 qui trwlbiil, and cannot he set up against their 
 
 title. 
 
 Archiliit/d v. />Vo/'<, .James, .S07. 
 
 15. Kenunclation-A trust once accepted 
 
 will lint lie presumed to have been suiiendercil 
 during the life of a party previous to whose 
 death the trusts cannot he fulHlled. 
 
 Kmhru V. Dixon, .James, .S'2G. 
 
 16. Resulting trust -Plaintiff, in his bill 
 
 or writ, set out that .John Blair granted certain 
 lands to defendant by deed, which, though ab- 
 solute in its terms, was given to secure i*(iOO, i 
 advanced by defendant to creditors of said 
 grantf>r, and that defendant at the execution of 
 the deed promised to reconvey to the grantor ■. 
 on payment within three years the amount due ; i 
 that the estate of the grantor had become vested 
 in plaintiff, who had tendered the .*600 and 
 offered to pay any balance found to be due 
 defendant, who refused to accept the money or 
 execute a deed. 
 
 Defendant'.s answer set up a parol trust to pay 
 in full a debt due by the grantor to defendant, 
 and apply the surplus ratably among five other 
 creditors ; that the amount thus due was more 
 than the ^600 tendered, and defendant offered 
 to reconvey the land on payment of the debts as 
 security for which it was given. A memoran- 
 dum, signed by the grantor, was delivered to 
 the defendant at the time of the conveyance, 
 witnessing that "the sums attached to the fol- 
 lowing names " (the five creditors referred to 
 iu defendant's answer) " are included as the 
 consideration money of John Blair to Robert 
 Chambers." 
 
 The creditors referred to were at the time 
 pressing Rlair for jiayment, and gave him lime 
 in consideration of this conveyance. The claims 
 of several of them were bought at a rediu-cd 
 rate by Hlair's son-in-law in Hluir's interest. 
 
 Hdil, that there was a consideration moving 
 from the several creditors named in the memo- 
 randum to Blair, and a resulting trust in favor 
 of all the said creditors ; that parol evidence of 
 this trust cf>uld be given consistently with tiic 
 Statute of Frauds; and that defendant held tiie 
 land in trust for the payment of IiIh own debt 
 and the debts of the other creditors at tlieir full 
 amount, notwithstanding the luirchase of the 
 same for a reduced sum, which was held to be a 
 matter solely between those creditors and their 
 assignee. 
 
 Pttiie V. Chamh, ):■<, I R. & (1., •_>;{•.'. 
 
 1 7. Revocation of trust — Where personal 
 
 pi'fiperty is assigned honalidi to pay a debt due 
 the trustee, who accepts the trust, its rcvocatinn 
 may be implied from subsciiuent conduct of the 
 parties wholly inconsistent with the trust. 
 
 Fdlfomr V. Sdinji r il a/., ,Iames, "277. 
 
 IS. Sale of land, «kc.— Where a bargain 
 
 was entered into between the plainlitl' and de- 
 fendant, for the sale of lands, and the defendant, 
 after ])ayiiig a moiety of the purchase money, 
 (piits the country without completing his pur- 
 chase, leaving the plaintiti' in possession, and, 
 in his absence, the plaintiti' takes out proceed- 
 ings as in foreclosure of mortgage, under which 
 the property is sold and bought in by him for a 
 much less p; ice than the original purchase 
 money, and soon afterwards re-sold to third 
 parties at a large advance, 
 
 JIt/il, in an application by defendant to be 
 allowed to come in and defend, that he is en- 
 titled to relief in e(|uity, and that the plaintitr 
 must be considered as his trustee, and. as such, 
 bound to account to him for the profits arising 
 from such re-sale. 
 
 Spurr v. Elderk-in, Cochran, 47. 
 
 19. Trustee to sell— Purchase by— When 
 
 permitted— Action to recover advance at re- 
 sale — Limitation of action — Pleading— Plain- 
 tiffs having appointed defendants their agents 
 for the sale of a vessel of which they were 
 desirous of disposing, defendants offered the 
 vessel for sale at public auction, at which she 
 was knocked do«Ti to Paint one of the defen- 
 dants for the sum of £800, who a few days after- 
 wards re-sold her at an advance of £300, which 
 he appropriated to his own personal benefit. 
 Prior to the sale at auction, defendants received 
 two offers for the purchase of the vessel, one of 
 
1589 
 
 VENDOR AND PURCHASER. 
 
 1590 
 
 an uinouiit tMjual to tlwit piiiil liy I'liiiit, ami 
 anotlier of tTiO more tliaii tliiil anioiiiit. Tliu 
 previous offers were not <;oiiiinmiieateil to plain- 
 tiffH, one of whom w.ts jireHeiit at llie auction 
 sale and niailo no olijection thereto, A settle- 
 ment waH had with ))laintitrs, Imt witlioiit 
 knowledge on their jiart either of the Hale made 
 liy I'aint or of the previous otliMs. I'lainliirs 
 three ('arH after t)ie sale to I'aint, eommenied 
 proceedings to compel payment of the amount 
 realized hy him on the re-sale of the vessel with 
 interest. 
 
 IIilil, (1.) tliat I'aint lieinga trustee to sell the 
 vessel eoiihl not he permitteii to huy without 
 lirst receiving from every one of his nxhiii qun 
 /ruxtnit, v\vi\v and exjilicit authority to divest 
 himself of the trust ami liocome a purchaser of 
 the trust jn-operty. 
 
 (2.) That this was a case in whicli the Court 
 would not reoogni/u a liar sliort of tiie slatulaMe 
 period of six years. 
 
 (3.) That if the plaintiffs were deharred fi'oni 
 bringing their action, it was for tlie defendants 
 first to plead it and secoiul to estalilish it 
 affirmatively by facts proved. 
 
 Sfinhlc, that the suppression by I'aint of liic 
 fact of the rece]iti<iii of ilic previous oilers was 
 of itself siitlicient to <lccide liic ca.M! for tlie 
 plaintiffs. 
 
 I'i.<h •! at. V. Fi-d.^ir il III., .'{ N. S. ))., TA^. 
 
 defendant had to remove the machinery was in 
 Sejitend)er, INTO. The machinery was removed 
 in Ki'lirnary, iSMd, but the County Court .hidge 
 held that the agreement lietween plaintiff and 
 ilefendant being contingent and having fallen 
 through, plaintiff was entitled to recover for 
 the whole period, and he allowed .'SlJlHt. 
 
 //>/(/, tiiat tlie plaintitl' could only recover for 
 the period after the agreement fell through; 
 that the aii]ieal must be sustained and judgment 
 entered below for plaintitl' for 8H().(K) for the use 
 of till.' premises from Septcndier to February, 
 being at tiie same rale allowed liy tiie County 
 Court .Jiulge. 
 
 JJriiiiKiii V. Jui'L', .'{ K. & (!., .'i(iH. 
 
 2. Xon-Jolndrr of tenant In common as 
 
 plaintiff in action for use and occupation — 
 Mesne proftta— 
 
 Set PRACTICE, l..!». 
 
 S. ^Vlinrf PlulntlfT brought suit for use 
 
 and occupation of a wharf. I>cfendanl pleatled 
 never indebted, and gave eviilence tliat part of 
 the wliarf was liuilt on a pulilio landing over 
 whiih tlie pulilic iiad for a long period been ac- 
 custonicil to p;i>s for ^\\^■ purpose of landing lish 
 from their lioals. Defendant contended also 
 tliat plainlitr could not build a public wliarf 
 without Icive from t'n' Crown. The .fudge 
 cliaigcd foi plaintiff and tlie jury found foi de- 
 fendant, but tiie verdict was set aside with costs. 
 I.'niil-'uii V. Cniijh'nit It n/., 3 R. & ('.., 290. 
 
 ' 4. Where a vendor lets a vendee Into 
 
 I'SAUEi possession of lands on a contract which after- 
 
 wards goes off, he ciinnot recover for use and 
 
 1. Evidence of a usage contrary to a occupation. 
 
 settled principle of hiw is not admissible. • y, ,„^,/, ,/ nl. v. McDonald, 2 Old., 155. 
 
 Hardy d a/, v. FalrlidiiLi it nl., .Tame-i, V,\'l 
 
 2. How proved 
 
 ^ I SUIPPINti, .vs- 
 EVIUEXCE, 119. 
 
 USE AND OCCUPATION. 
 1. Action for, when premises occupied 
 
 under proposed agreement which fell through 
 — Plaintiff, brought action for use and occupa- 
 tion of premises by defendant who was assignee 
 of one McCleeve. The alleged use consisted in 
 allowing machinery of the insolvent (McCleeve) 
 to remain on the premises. Plaintiff had re- 
 quested the defendant not to sell the machinery 
 by tender, stating that he would make a better 
 offer than any one else : and the first notice that 
 
 USURY- 
 S" INTEREST 0\ MOXEF. 
 
 VENDOR AND PURCHASER. 
 Covenants binding on purchasers— Lands 
 
 never to be sold— A deed of conveyance con- 
 tained an agreement tliat certain laud, described 
 in the deed, should " never be hereafter sold, 
 but should be left for the connnon benefit of both 
 parties and their 8ucce.s.sors." In asuit brought 
 to compel the removal of a house alleged to have 
 been built on the land m contravention of the 
 agreement, 
 
loUl 
 
 VKRDICT. 
 
 l.'.Di 
 
 llilil, tliiil tin,' aj,'iot'iiiiiil wii.s oni' the |icrl'i>i- 
 miinut! (if wliiuli iniHlit lie cnfiiircd in cciuiiy, 
 because (/ii tin; tniu const nicl imi i)f it.i terms it 
 ainoiuilcd, imt ton |ici'iM'tuiil icatiicliitn of .sulu, 
 but til an ugi'fL'nn'iit on tlit- inirt of tliu grantor 
 to leave tlie land in the stale in uliicli it was at 
 the time of tlit^ conveyance ; and liccanse the 
 iigl'eeniont ciintumplated, not an umertain and 
 indelinite use of the liind hy the iiartics, liul 
 tliat the land .siiould lie left o|ien for the udvim- 
 tiige of the [laities as adjoining proiirietors. 
 Ciiri jiorfi'il '" /'<(''. 
 
 Mrl.fiiH V. MiKfiij, L. K., "i I'. ('., .T_'7; 
 
 •-'!iL. T., ;<:>•-'. 
 
 •SV,,., /.so, SALE. 
 
 VEXIRE DE \0V0- 
 S" tKIMIML LAW, -I 
 
 VEM E - 
 .St, TKIAL. 
 
 •'>. Criminal Power or<'ourl to !ti>t iiKlde 
 
 Verdict ip criminal case 
 
 v (KIMINAIi LAW, -'« 
 
 ((. EJceliiu'iit Yerdkl lor u purt of llic 
 
 laml claimed in ejeiliiient, s|iecifying the |iai t, 
 ■ is good, 
 
 I Mfjhiiiulil, 1 1 (il. y. Mi/)oii(i/il !■> III., 
 
 I 1 K. \ C.Wl. 
 
 j 7. Equity Imniios In Tli« priutlcc oftlie 
 
 ' Sniiremu Court on the connnon law side in rela- 
 tion to .settin).' aside Verdicts and granting new 
 trials, is pccnliaily apiilicalile to the trial ot 
 issues in ei(nity. on circuit, and a party dissatis- 
 
 ! lied with a verdict in an ei|uily suit, tried on 
 i^ircuil, slwiuld apply to ihe.ludge lietore whom 
 it \»as tried for a iiile «/<(, or in the evt'Ut of his 
 refiisinij; a ride, should lake it out under the 
 Statute, and cannot, haviiii; iiiuored that prae- 
 tice, move the Ivpiity Court at Halifax lo set 
 aside the veiiliet. 
 
 Cli'/iiiiiiii V. (i'<ir(t:(i if III., 11. K. |).,-ti. 
 
 H. Evidence conflicting Where conflict- 
 ing evidence was given on a i|Uestion of negli- 
 geiu'c, and a general veidicl was found for the 
 lilaiiitilV the Court refused to dislurli it. 
 
 Wooil V. Allnii, .•{ n. it <!., -Jll. 
 
 VEKIUCT. 
 
 I 
 
 1. Consent verdict - Questions of fact 
 
 treated as settled— At the trial, after conHict- 
 iiig evidence, a verilict was taken hy consent | 
 for defendants, with jiowcr to the Court to set ' 
 it aside and enter a nonsuit or verdict the 
 other way. 
 
 Jltld, that all questions of fact must lie treat- 
 ed as settled in the proper way liy the verdict. 
 
 McAIuUeu V. Kcudrirk i.l uL, 5 R. & (J., 308. 
 
 2. County Court— Verdict of Jury In that 
 Court — 
 
 See STATUTES, NOVA SCOTIA, 
 
 43 Vict. (1880), c. '2, 8S. 51, 5'i, &e. 
 
 3. Court can alter verdict In order to 
 
 give it its legal efFeot. 
 
 Cochran v. Chi/iman et al., '2 R. & C, 254. 
 
 4. Criminal -Authority ofCourt In banco 
 
 to enquire into validity of objections taken at 
 trial on behalf of prisoner and overruled— 
 Prisoners jointly indicted — 
 
 Set CRIMINAL LAW, 1. 
 
 1». Evidence Inipntper receiition of - 
 
 Ett'ect A verdict will not lie invalidatcil, hy 
 the improjier reee|ition of evidence, when there 
 is suHicient additional evidence to sustain it. 
 
 /,'»«(// V. Miirxhnll, .James, .'i.'JO. 
 
 10. Evidence - Question of fact — Tiie 
 
 (luestion in this ca.se was simply one of fact, ami 
 the jury having found for the plaintiff', the Com I 
 refused to set the verdict aside. 
 
 O'Mullui i:t al. V. J/cDonnlil it al., 
 
 1 M.k C., 4ti. 
 
 11. Evidence-Question of fact - Where 
 
 the question at i.ssuu was purely one of fact, 
 involving no legal points whatever, and tiie 
 Judge left the whole charge open to the jury, 
 who found for the plaintilT, 
 
 Htld, that the verdict could not lie disturlieil. 
 Lyou V. Morton, 3 N. S. 1)., 4.'i!l. 
 
 12. Evidence, rejection of— Where cvi> 
 
 I deuce is rejected at a trial, the Court will imI 
 set aside a verdict, if, had the rejected evideiicu 
 been received and a verdict found in favor of 
 the party offering it, that verdict would, have 
 been clearly against the weight of evidence. 
 
 Allan V. Pttera el al., 1 R. & C, 365. 
 
loon 
 
 VERDICT. 
 
 15!)4 
 
 13. Evidrnre - Vonlict iiKiiliist I'liiln* tiu' wcighi of cvi.i.im'i' lingdy pripoiKiniiirM 
 
 till'M <liiim('il title to a ixTtiiin lot of liiiy cut liy j (tgiiiiiHt it, 
 
 tliciii miller an M),'reeiiieiil eiitereil into by tlieiii I Dnrnr v /'mn/i'ii, '2 N. S. 1)., jOL', 
 
 with one McK., ilateil IStli June, 1S()7. No j 
 
 cviiiejiee wuH Kiven of McK.'s I'i^'hl to sell thi' 10. EXfOMHlVC AKIlilINt evIdCnCO tiltA 
 
 ^.'lUNs or hay, oilier I liaii the lux'Nunipliou aii.siui; ; charge of Jiuljje Where a veiiliri is foiiml 
 fnun his hiiving long licuii ami then heiug in i against the eliarj^'e of the .linlKe, and the uin'ou- 
 oeeiipiil ion of the lainl. Defeinliinl iiroilneed t lailiileil eviilence of the only witiie.sM exiiniiuud 
 an agreement daleil Slii .lune, lH{i(l, with MeK., nt thi! tiial, for a larger anioinil than the evi- 
 reeitiiig that MeKay and wife liacl that day denee warrants, the t'ourt will either order a new 
 lonveyecl to defeiidanl the laiiil on «hiehllie trial, or, if the ])laiiititT eon.seut, reduee the 
 grass grew, and gave evideiiee of having reii:ived ' damages to the suni warianted liy the evidence, 
 a ileed of the same hearing the' same date, liul 1 It'L^sir if iil . v. Iliii' il lil., I Old., 7-7. 
 
 did not produce any deed, and iil.so gave cvi- | 
 
 .leiioe, mieontradieted, tiiiit ho was put in jioh- 20. Exct'.SSlVC KoilllttllUr Wlicrc il TCr- 
 session on the !ltli .June, IS(i(i, liy .MeK., ami diet is ixiessive the entry of a remittitur will 
 that from thai lime onwiird .\lel\, was aeting !»' Hullieient if the excess is the lesull of mere 
 
 as his servant. 
 
 inistuku, and not of an intentional disregard of 
 
 //'/'/, that theverdiel for tjie plaintill' must the instructions of the Court. 
 
 lie sec iisnie. 
 
 W'ilkins and .*<milh, .1.1., ilii.ii iili in/. 
 
 Mrlkiimld 1 1 (t!. V. Ilroilli, •_' II. .V ('., -Jl.'t. 
 
 II. EvIdonro—YordUt against TliPl'oiirl 
 
 will review a verdict negativing fraud in an 
 assignment of personal property, and set it aside 
 when contrary to a strong prepondeiance of 
 evidence. 
 
 rnlriiiii r V. Sinri/i ,■ ,/ nl., .lames, ■J77. 
 
 1.1. Kvldcnrc Vordict ap;aiiist- Wlicrv a 
 
 \('r<lict is found against uncontradicted evidence 
 and the charge of tiie .ludgc, the Court will set 
 il aside. 
 
 Thui-iK v. SItnir, I Old., ,'if_>. 
 
 1«. fivtdencc -Vpi'dlc t, against woljtlit of 
 
 — Where a verdict was fonml for plaintitliJU the 
 evidence' of one of pliiintilt's witnesses, against 
 the eviilciii e of ail liie di'fendant's witnesses, 
 and against the evidence of one of the only two 
 witnesses prmluced hy jilaintili' on the point in 
 (piestion, the evidence of the latter not having 
 
 MrKaij v. Wvod'ilK li M. >."v: <!.. SS ; 
 
 (ic. L. 'I'., U.S. 
 
 21. Fraud Verdict as ti) riaiiitlir»t 
 
 lii'oiight action on a. poiii'v of insurance, ;iiid the 
 jury, in answer to a ijuestion whiMher the claim 
 had lieen honestly maile, replied "heing over- 
 estimati'(l hut not with the intention of fraud." 
 I.utcher, a co-plaint ill', gavi' very strong evidenc(! 
 to implicate I.fiugley tirsi as heing privy to the 
 destruction of the Jiroperty, ami sei'ondly. as 
 having made a false and fraudulent claim. The 
 wlioU' evideuci' in tlu' opinion of the Court 
 showed liadgcs of fraud, aiicl altlicaigh the jury 
 had negatived iutentioiiid fraud in llie statement 
 of tlie claim, their verdict was for only .•^4(MI, 
 while the claim had lieeii made for S.'it ».'».( Mi. 
 Ililil, that the vei'diet must lie .set aside. 
 l.oii'i/i 1/ it (il. V. Xfirflicrii Iiisiiriitife Co., 
 
 :i \{. & ('., .'lit). 
 
 22. (icneral vordirt Tor plaintiflT One or 
 
 the issues found for defendant — The jury found 
 a general verdict for )ilaintill'; hut in answer to 
 
 taken plaint itn.v surprise, us he had lU'eviouslv >' 'l"^--'li"" l>"t t" them hy the .ludge, found 
 
 heen examine.l >/. hm, -...v. l.y .lefemlant, ' "'"' "^ ''"' '''>*'"'^ ''•^''"■'' ''.V ^'"•' l'l«'i'li"Ks »'"'' t'le 
 
 Ihhl, that the verdict must he set asi.le. 'lef.n.lant. 
 Spiiiw \. IVimU.rd- Ainin/iu/is i;<n/,r,n/, ^^''''' t'''it the general verdict for i.laintifF 
 
 I l;. .V: ('., Kit). 
 
 II. Evidenoe Weight of - Verdict set 
 
 aside ii.s heing against the weight of evidence, 
 and the .Juilge's charge. 
 
 Coxttli r V. Honiiliy it ai, .S N. S. 1)., 240. 
 
 1 
 
 18. Evidence - Weight of- Where a ver- 
 dict is sought to be set aside solely on the 
 ground of its being against the weight of evi- 
 dence, this Court will seldom disturb it unless j 
 
 must be set aside. 
 
 /'ec. lames, J., that it c(uild be amemled. 
 MrKiitnon v. MrXei/l <l al., 4 li. it ('>., '2't. 
 
 23. .Furors The omission of the resi- 
 dences and occupations of the jurors in the lists 
 returned by the .Justices, 
 
 Hdil, nf)t sutiicienl to disturb verdicts in 
 
 causes where the ol)jection waa not made at the 
 
 trial, unless it is shown that injustice has been 
 
 done. 
 
 Siaman v. Campbell, James, 94, 
 
i:)95 
 
 VERDICT. 
 
 ir)96 
 
 24. Jury -Judge ghiiiR his opinion to 
 
 It iM no grounil for Hi'tliiig uhIiIu a viTilict tliiit 
 tilt' .ludf^e ^{iivii his opiiiimi cm the facts to tlio 
 jury iviid ruudiiiiiu'iicK'il tlu'in tc) givu Nuiiill 
 daiiiHjjuH, 
 
 Fnnch v, WaKace, .Iuur's, 337. 
 
 *2S. Jury ~ Mliirnndurt of During a th'^m 
 
 wliicli (iccurrt'd in tln' itionri'ss of u tiliil lUlci' all 
 the (!vi(lonuo hail hi-on put in, l)ut the chming 
 aililrt'WH of the (^)unst'l not yt't (U'livcrcil, oiio of 
 tiio juriM's Mils ht'iii'il to say alfiiid : " 'I'lic pliiiu- 
 tiflf has got to get liiM pay, ami he will get it." 
 The venliet lieiiig in favoi' of pluiiitit}', it was 
 Bought to lii^ set aside for niisi'ondilct on the 
 part of the juior. 
 
 //'/</, that looking at the eireunistaiices under 
 wliieh the remark was made, there was no ground 
 for disturliing the verdict. 
 
 Thilihi'an V. A'/•o•W^ 3 X. .S. ])., 31S. 
 
 2(1. .Jury -Kclationship The foremnn of 
 
 a juiy which found a veidict for defendant, was 
 a cousin of defendant's wife ; this fact was not 
 known tojdaintitT till after verdict, tho\igh his 
 attorney stated to defendant's attorney liefore 
 the jury announced their verdict, that, if it was 
 for defendant, it would he set aside on account 
 of the relationship. The .ludgo who tried tlie 
 cause was satislied with tlie verdict found. 
 The Court refused to disturli the verdict, 
 
 Lelilaw V. M,l!(u, •_' H. \ ('., -.MO. 
 
 2!. Objection not taken at trial -The 
 
 Court will not, on the argument of a motion to 
 Bet aside a venlict, ent"ilain an olijectioii wliicli 
 was not taken at the trial, where the olijeelion 
 might have been remedied, if taken at the trial. 
 lliUis V. Camplii'/I, .James, 48. 
 
 28. Right of the Court to control vertllct 
 
 of —Wherever the jury decide against (ir with- 
 out evidence, tlie Court will exercise its right to 
 control them in order that justice may he done. 
 Cox V. Witt, •_' N. S. D., 2.-). 
 
 1 
 
 29. Second verdict same way -Evidence 
 
 conflicting — Where the evidence in a ease is 
 conflicting and contradictory, and a jury have 
 twice found in favor of the plaintiff, the Court 
 will not disturb the verdict. 
 
 Fotler V. Foider, Cochran, 70. 
 
 I 
 
 30. The Court will not send a special 
 
 verdict back to a jury, to decide upon a pre- 
 sumption which they would not be justified in 
 finding. 
 
 Archibald v. Bloii, James, 307. 
 
 31. Uncertainty Ambiguity -Where, on 
 
 an inilictnieiit for murder, the jury returned u 
 verdict in the following «ords: "(iiiilty of 
 murder, with a reeoinmeiidation to mercy, as 
 tliere is no evidence to show malice aforuthoiiglil 
 and ]irenieditation." 
 
 Ill III, that it was too ambiguous and uncer- 
 tain to allow tilt! Court to promiunco any juilg* 
 
 meiit on it. 
 
 Qmth v. Jlealey, '2 Tliom., 331. 
 
 32. Uncertainty in In an action Tor de« 
 
 famation, tiitt jury in answer tti a ijuestion said 
 they could ikjI ilecide whether the defendant 
 had malice or not wiieii the wortls were spoken, 
 but that they considered that hi; had no right to 
 nm: them, ami they found for plaintiir. 
 
 //(/(/, that as the jury hacl not foinid express 
 malice, the verdict must fall. 
 
 Sli.plonI V. llVuVt, 'JR. &C.,3l. 
 
 33. Incvrtalnty -Verdict In ejectment- 
 
 Refusal to set aside — When a plaititill' has re- 
 covered in ejiktmeiil some portion of the lands 
 describecl in his writ, but it iloes not clearly 
 ap]>ear by the venlict to what portion of the 
 jiremises claimed he is entitled, the venlict will 
 not be set aside for uncertainty, as the Court 
 will not assume that lu^ will attempt to recover 
 jiossession beyoml what lie is entitled to. 
 
 The verdict is ample authority for this, and the 
 plaintiff must ascertain the line at his jieril. 
 
 Hamilton v. /'/V/7(.<, 3 N. .S. ])., 87. 
 
 34. rncertalnty - Verdict set aside for— 
 
 In an action for trespass to land, the ilefeiidant 
 )ii'oved the establishment of a conventional line 
 with the person from whom jilaintilf claimetl, 
 giving the lorw in (]iiestion to tlie defendant. 
 I'liiintitf and defendant lioth jiroved subseciuent 
 acts indicating ownershij) performed by them 
 respectively on the locus. To the (piestion "if 
 S. (i., when propiictoi' of the land of plaintiflf, 
 
 , had met C. (1. and the defemlant on the land in 
 question, and agreed with them, as trustees of 
 the A. Church jiroperty, that the western side of 
 
 ' the stone wall should lie the western line of the 
 land known as the A. Church property, the 
 jury returned this answer : " he (S. (i.) said so," 
 ami found a verdict for plaintiff. .S. (i. ilitl say 
 80 in his testimony at the trial antl was not 
 contratlicted. 
 
 Held, that the verdict must be set aside. 
 
 Onrhait v. (loosilbij, 2 R. & C, '23.). 
 
 35. Verdict for plaintiff, by mistake en- 
 
 tered for defendant— Jurisdiction of Court to 
 set the verdict aside — In an action for malicious- 
 ly procuring an execution to be issued against 
 
1597 
 
 WARRANTY. 
 
 1598 
 
 111.' piaiiitiir, tiio Judge put to iiio jury tiiiM|uiH. !|, Property found In the country at the 
 
 tion whether the (lefeiiiliuit isHuetl the exucutiun coumienceMiuiit of war iiol liiilile to Im Hoizeil. 
 knowing or holieving that nothing wax (hie to iiim ! Jhiil. 
 
 I'y the piiiintiU'; if not, the vonlitt to lie for' 
 
 thtMicfcndiint. Tiif jury lumwerci tiie .lui^tion 3. Thc derlaratlou Of War by tlie I'nitrd 
 
 in tlio ni'giuive, i)ut founil ii verdict for ]tluintitr. •'^liit«-'>' "lid imt place tlu; two countries in a com- 
 'I'iie iludgo on Circuit, on motion, ordered ii I'lete Mtate of war, till the onler for repriwiln liy 
 verdii't to he entered for defendant with leave thu Urilish government. /''/'/ 
 
 to move. After argument of the ride nisi to net j 
 ttside tiio verdict for defendant, 
 
 4. Prize of- 
 
 JIilil, that there wan no authority, after the 
 verdict fr>r plaintiff was rendered, to enter a 
 verdict for defendant, and that tiie Court in 
 hnii f hni\ jurisdiction to grant a rule (ni/ to set 
 it HHiile. 
 
 MrKitij V. H'oodl//, 4 It. & C, .■>:.. 
 
 86. Verdict too larsre - Remittitur m to 
 
 exceHs ornow trial -Where the venlicl of the 
 jury is f(jr a larger amount than is claiirii-d hy 
 the plaintitr, the Court will not aUow him to 
 enter a judgment for that anuiiint, Imt will give 
 him leave either to remit the excess, <ir grant a 
 new tiiul. 
 
 Miilhall it («/. V. lliirs.1, '2 Tliom., 4(5, 
 
 S,> PRIZE OF W.\R. 
 
 VICE-AUMIKAL. 
 1. Commission of Extracts f^om - 
 
 Stewart, 4'24. 
 
 WAKEII01SEM.\> AND WilAKFINOEK. 
 
 1. WharniKc How recovered- WliarfliKe 
 
 is recovtT.ihle under comits of iiiililiiiiiiii.\ 
 (iniuiiiinii, that licing the proper form in whii'h 
 to ))roceed. 
 
 I)< Wulf V. I'inirharih/ ti/., ',] X. ,S. 1)., •.>'.>4. 
 
 2. Where a warehouse keeper retains for 
 
 a consideialile space of lime a delivery order ill 
 liis possession, witimut giving notice to tiie |iaity 
 seniling it that tiie property is not liu' property 
 of the party hy whom the order is made, he will 
 ))e personally resj)onsil)le for the goods contained 
 in such delivery order. 
 Wilkins, .)., ili.tsi niiinj, 
 
 Tirliiiini V. Oa'/f//, •_' Thom., 18. 
 
 3. Use and occupation of wharf Verdict 
 
 2. Their powers and history — Cannot for defendant set aside-I'huntilV lirouuht suit 
 
 issue letters of marque— f„,. i,go and occupation of a wharf. Defendant 
 
 Th' Litlli Joi , Stewart, .382. pleaded nt^ver indebted, and gave evidenijc that 
 
 part of the wharf was hnilt on a pulilic landing, 
 
 over which the pul)lie had for a long perioil lieen 
 
 i accustomed to pass for the i)urpose of landing 
 fish from tlieir hoats. Defendant contended 
 also thai plaintilV could not liuild a jmhlic wharf 
 without leave from thc Crown. The Judge 
 
 VICE-ADMIRALTT COURT- 
 See ADMIRALTY- 
 
 SHIPPINO. 
 
 WAGER- 
 Sce GAMINO. 
 
 charged for plaintiff and tlie jury found for de- 
 fendant, hut the venlict was set aside with costs. 
 Lindsay v. Creiyhlon tl al., ',i R, & G., 290. 
 
 WARHAXTT. 
 
 1. Brand — Warranty— Plaintiffs sold to 
 
 defendant a ipiantity of lish, packed in Ijarrels 
 I and lialf-harreLs, inspected hy one of the plain- 
 iirin 1 tiffs, not being a sworn inspector, as provideil 
 
 by .Statute (3rd R, .S., e. 8')), and by him l.iranded 
 1. Does not exist till authorized by His "^'"'f Herring, split Xo. l," the statutory de- 
 Majesty scription of inspected herring. Before purehas- 
 
 See AMERICAN WAR. ing, defendant examined a few barrels which 
 
l.VJ!) 
 
 WARRANTY. 
 
 KiOO 
 
 Writ' ii|irii('il, lunl Haw liniii' iiiikiiiiiicI. 'I'Iic HhIi 
 Were Nliippi'il til hiiHtiiii, ami on iiiM|u-('tiiiii tlici'v 
 tliiy tiii'iii'il iiiit liail, ujtii till' i'\i'i'|ilii>ii III' tiiiii' 
 IiiiIii'In, mill UcM' I'ctiil'liril to lliililitx, wliiTt' 
 tlicy wi'te iigiiiii iiih|ifiti il. 'I'lifii' whn •<tioiij,' 
 I'viili'iirt' that liu' IIhIi, wliiii ndM, iliil iml cur 
 i't'N|iiiii(l uitii till' lniiiiil, aiiil llic jury in aiiNNMr 
 tiMi i|m'titiiiii put to tlu'iii liy the .luilgc, I'miiiil 
 that tilt' IIkIi, wlit'li Holil, wi'i'o lint, an a wlmlu, 
 lii'iipi'i'ly I'liri'il Hiiil iiii'i rliaiitalili'; liiit to aiiollit;!' 
 ilut'Ntioii, whcliitr the li^li wiii' fraiiiliilriitly put 
 iij) for the purpoMi' o| ili'ti'ptimi, tiny iiiailc 
 iiiittwor ill till! iicyativi'. A vinlicf piiMHcil for 
 till.' plaint ill'i* for f^'.i'iO, the liaiiii luiiig almut , 
 JIKK). 
 
 //(/'/, that till! Iiraiiil, "(lulf lluriinj.'. >*plit, 
 No. 1," anioiintt'd to a warranty that tlu^ HmIi 
 wtri' of till' ipiality coiiiini'ri'ially kiiown uiulir 
 tint ili'iioiiiiiiatioii ; tliat it wax not ii('r('.'<''ary 
 fur ili'tfiiilaiit to liriiii; a iroMK-at'tioii on the 
 warraiitv, liiit tliiit lif roiilil j^'ive uviili'iii'i! of' 
 the liiiarii of till' wai'iiiiity iin proof of tVi'urt' 
 of (.oiisiiUratioii, ami that tlii' viniiil nIioiiIiI lie ' 
 sit asiili' with I'ostH. 
 
 .l/(((/i /• ,/ ((/. V, ./o»i V, I I{. & ('., S'J. 
 
 '2. Iin|ili«'(l wnrraiil) of uiilliorlty tu 
 
 act as ayeiit - riaiiiiill' luinight aitimi for tiic 
 prill' of goods fuinislifil to ih'fi'iulaiit, who |)ro- 
 ft'ssi'd, hut without any valid authority, to hi' ' 
 actjiij.' for tlif cstati' of a dfi-i'ascil pi'rsoii iiaiiu'il 
 Hiiliiirds. I'laiiilitraml difindaiit wiru I'ljually ; 
 awari' of the death of IJichards, Imi yet the lie- i 
 I'ouiit was still kept in the name of Rieliards, | 
 who hail in his lifeliiiit' had dealings of the same | 
 nature with the plaintiH'. 
 
 J/i/il, that if plaiiititr eould recover at all 
 under the evidenee, wliieli was doulitful, he 
 eould only do so on a eoiiiil for the Iireaeh of 
 defendant's inijilied warranty of his authority , 
 to ait for the estate. ' 
 
 On.-mni v. /%/- , I R. & (!., 1. | 
 
 3. liisurancv'— Warrant) In policies of- 
 
 *eL\siR.\XCE. 
 
 4. Sale of flsh as No. 1 without express 
 
 warranty — Implied warranty — The sale of Xo. 
 1 salmon without express warranty ainouiiti^ to 
 a warranty that the fish are in the eonditiou 
 preserihed hy law for tish of that liraml. 
 
 Hardy it cd. v. Fairhunk'i tt «/., James, 432. 
 
 3. Sale of goods specified to be No. 1— 
 
 Inspection of — Measure of damages — When 
 the bought note specifies the article bought to 
 
 lie No, I iiiaekerel, it is a wiirianty that they 
 ai'o of that iiuaiity. The iiispeetioii of a fow 
 
 liirrets liefoie ihfpiiirhase dors not invalidate 
 the warranty. The measure of damages is the 
 ditt'ereliei' lietWeiii the value of tlie artirli' 
 ai'tuillly sold iiiid the Millie ill llie same liiiuket 
 of all 111 tiele ot the ipiality Npeeilieil ill the liollglit 
 note, 
 
 H'kr V. lii'Mii, '-'Thoiii,, I7h, 
 
 41. Sale or property Contract of war- 
 ranty Latent deteetn \ eoiitiait amounting 
 to II warriiiity of goods sold is violated it the 
 artielcH, owing to a Ht'cret defeei existing at ihe 
 
 time of sale, aftel'Mards lieroines deteriiiriitid in 
 value. 
 
 //'(/■'/// 1 1 III. V. /■'iiirliinil.'i 1 1 It/., .lames, l.'i'.'. 
 
 7. Sale or property From nature of (lie 
 
 tranmiction held iiierehantahle charaeier of 
 goodH Hold not warranted riaintills Mere the 
 
 eonsii;iiees for sale of a lalgo of oats eonsist iiig 
 of upwards of CilKMt bushels, imported from New 
 \'ork by parties residing at ( 'ornwallis. The 
 oats Were stowed in bulk on board a vessel 
 lying at the Market Wharf. I'laiiitiH's had en- 
 gaged an auetiiiiieer to sell the cargo at aui'lioii, 
 and a sale li.id lieiii adverti/ed. Siibsei|Ueiit to 
 this, OIK! of the ilefeliilaiits called upon plailitill's 
 and made some general ini|uiries in regard to the 
 character oi the oats, their color and weight, and 
 finally agreed to take them oil plaiiitiIVs' liaiids. 
 There was no sale by sample, and no stipulation 
 on the part of the vendors, whose eondiicl was 
 fair and o])en, that the oats were lit for any 
 particular purpose. I (efeudaiits, on the evening 
 before the appointed day of sale, iliterv eiied as 
 purclmsers, and gave the auclioneer instructions 
 under which he acted. After a large i|iiaiility 
 of the oata (some l.")()0 bushels) had been disposed 
 of, the balance reiiiaining in the vessel's hold 
 were discovered to be musty. To au action for 
 the unpaid lialancc of the purchase money 
 defcudant.s pleaded substantially that the con- 
 tract was for a cargo of inerehantable oats, being 
 in the hold of the vessel and incajiuble of in- 
 spection. A verdict having been found for 
 defen(lant.s, 
 
 //i Id, that the nature of the transaction pre- 
 cluded the idea that a inerehantable character 
 was an understood condition of the contract. 
 Ijoih parties had eijual oj?portunities of inspect- 
 ing the cargo, and the vendors sold and the 
 buyers bought the specific visible thing. The 
 rule for a new trial was therefore niaile absolute. 
 
 Young, C. J., dissenting. 
 
 Fraser tt al. v. Salter et al., 1 N. S. D., 424. 
 
inoi 
 
 WAbTE- 
 By trnant In dower - 
 
 WAY. 
 
 1002 
 
 Tlic mom nc'tliig >«o nn in Iciid iici'mcihh to mip- 
 I piiNi' tliiit a ua^ i-4 (Icclji'iitnl cIhi'n imt luiinuiil to 
 II clcclic'iitinii, if tlii'i'i' liu III) ii^i'i'L'iiivnt which 
 •'"' DOnEKi ) t'xpluiii'i the tiiiiiNiictiim. 
 
 I //f(<c//(M V. It(ihr<t >i'., I Old., »l!l. 
 
 ViATER \Sn WATKR-(Ori{SE. 
 I. Duiiiiitfr lo waloM'oiirsc >Vlii>ri' iluiii* 
 
 ni;:t'M arc cliiiiMrd luriiri iiliNtnii'tinii tnuuuit'i- 
 rriiil'ic, til riltitli' JilaintitV til I'i'riivi'f lie liillht 
 hIiiiw till' «liiil(' dainaycH icMultcd friiiii tlic acts 
 lit the ditciiilaiit. 
 
 /■V/s/ 
 
 .1. (irrnt roiKiN Not nlloKHhor exempted 
 
 (Viiiii pi'oviHidii.-tut (Jounty Incorporiitioii Act - 
 /■' (• 'riiiiiii|iMiiii, .1., dilivciinj,' the jiiil;{iiiciit of 
 I lie Ciniit The (.Meat riiailH arc imt exempted 
 from the prnviNiiiiiM of the ( 'iiiiiity Iiicoi|iiiratiiiii 
 Alt ^.'iiuially, liiit only thiiM' prnv ihioiis uhidi 
 eiialijc the I'liiiiiril til stop, alter and dive It roailM, 
 
 V Foir/,,' ''riiiim t"'. !''''■'.'""'•'•'■' »• 'I'll' M,i„lrli,iintj/n/Sf. Mmi/'^, 
 
 2. WaterN, navigable Kl^ht of < rown to 
 grant- i> HlKhwa} lledlealloii of Iiijiiiietlon 
 
 >!' (iKAM. to compel removal ol' water ijijicH I'liiiiitilF 
 prayeil an iiijiiie'lliiM to cnliipi'l drl'eiidaiits lit 
 
 S" DUAIXACiE WAY, 
 
 WAV. 
 
 «. Iirainage " — remove certain water pipes laid llnnu;,'h and 
 
 under plaintill's lanii, a'ld also i laimeil dama^cH 
 fill' trespasses coiumitted in iliL'j.'in;; irenihei* 
 nml laying pipes therein. It appeared that tho 
 HctH complaliicd of were I'nmmittcd on property 
 covered liy a grant to [ilaintilV, Imt dor.e along- 
 side of the travelled Iraet of a road which hail 
 
 1. Dedication or IllKbnay Limited and hecn UHcd an a imlilic highway for over sixty 
 subject to pre-existing right.s and ohligations [ years. 
 
 — I>cfendant rtiiiovcd plaintill's ]iiiirli as a nui- ' Xo dedication or layinj,' out of the road was 
 sance, and jiistitied as Keing a cimmittcc of the proved, hut it was shown liy the records uf the 
 City Council duly authori/ed to remove any- Court of Sessions of the Comity of Halifax that 
 tiling whicii was a nnisancc, encniachment or proceedings wei'c commenced in 17iM) to lay out 
 annoyance on any of the streets, 'riie c\iilcnce the road, and that tlm .■Sessions r.iade an order 
 .sliowcd that the pori'li, which encioaciud upon directing the Sjicritt' to summon a jury of tiie 
 the iiulilic street sevcial feet, had hcen in exist- next townshiii to lay it out pursuant tn law. 
 ence, just as it was licforeheiiig pulled ilown, for 'I'lie Act under which tiie proceedings were 
 a period of sixty years, Theie was no evidence taken, .'id (ico. '.i. c. I, iei|uired that the return of 
 as to the origin or iledication of the street, and the Sheritl' should, after notice to the owneis of 
 it dill not appeal whether the porch or the street | the nature and course of the road to he nuide or 
 were the more ancient. ! altered through their landH, he confirmed and 
 
 Ilihl, in the alisence of evidence as to the recorded liy the Court of .Sessions, and that tho 
 original laying out of the street, its dedication road sIkiuIiI lie made or altered aci'oriliugly, and 
 to the pulilic should lie taken as suliject to the .shoidd "thenceforth liecome a pulilic highway."' 
 encroachment in (]uestion, and that the verdict I H(/il, that under the terms of the Act, the 
 for dcfemlant.s should he set aside, I road would not hecome a public highway until 
 
 //(ii/eir/i) V, Pri/or I f ii/., 'i X. S. 1),, XV2, ! the return and notice had lieen continued anil 
 
 I recorded, and that in the absence of proof of thia 
 
 2. Dedication of public highway — Cul having been done, the laying out of the road 
 de sac — There may be a public highway without I inider the .Statute coidd not lie presumed, even 
 its being a thoroughfare, but where such high- i in view of the long user, merely from the fact 
 way is claimed by dedication, the acts or de- ' that the Court of Sessions had ordered tlie 
 clarations relied on to support it must be clear . Sheriff to summon a jury for that purpose, 
 
 and unequivocal, with manifest intention to i Alio, that even if the road had been laid out 
 dedicate. ; as contended, the soil in the highway remained 
 
 There is a difference between a ail de sac in I in the owner of the property through which it 
 the city and in the country, much stronger acts [ ran, who could maintain trespass for digging up 
 being required to establish a pulilic highway by the soil and laying pipes therein, 
 dedication in the latter than in the former. I Pa- Weatherbe, J. — That as no irreparable 
 
1603 
 
 WAY. 
 
 1604 
 
 Injury was shown, the injunction to compel the 
 reuioval of the pipes shouhl not be granted, but 
 that the verdict for damages should stand if tlie 
 trespasses had been committed within the limits 
 of the plaintiff's grant. 
 
 Kearney v. Diction et a/., 20 N. S. R., 
 
 {8R. &G.), 95. 
 
 On appeal to the Supreme Court of Canada, 
 
 Held, reversing the judgment below, that 
 in the absence of any evidence of dedication of 
 the road, it must bo presumed tiiat the proceed- 
 ings under the Statute were riglitly taken, and 
 K. could not recover. 
 
 Dick-ion V. Kearney, 14 S. C. R., 143. 
 
 I 
 
 S. Highway — Drainage - Dedication of 
 
 water-course — Public easement — Adverse 
 enjoyment — Prescription — Action of trespass 
 against a Surveyor of Highways for cutting a 
 ditch through plaintiff's land to carry off water 
 from the highway, and for Klling up another i 
 ditcli in the highway, an<l thereby causing water : 
 to flow over plaintiff's land. Defence ; To the ' 
 first charge : That tlie former owner of plaintiff's 
 land lielped to construct ihe highway, and agreed 
 to the cutting of the ditch for carrying off the 
 water from the highway ; tiiat the ditch Inul 
 been in use for tliat piupose for thirty-seven 
 years ; that occasional oljstructions, during that 
 time, had been removed by the Surveyor for the 
 time being : that the ditch follows the natural 
 ■course for the flow of water from the highway ; 
 and that the cutting complained of was a clear- ■ 
 ing out of obstructions which plaintiff had 
 placed in the ditch a short time before. The 
 defence to the second complaint was tliat the 
 other ditch was a ditch alongside the highway, 
 too deep to be safe, and that the defendant, as 
 such Surveyor, partially filled it up, as he had a 
 right to do. At the trial the Judge excluded 
 the evidence of defence to the first complaint and 
 a verdict, under his direction, passed for plaintifl'. ' 
 
 //eld, 1st. That the long u.se of the drain 
 through plaintitr's land was evidence from which 
 a jury might infer a dedication by deed, though i 
 there was evi<lence of an assent to sucli use more | 
 than twenty years ago. '2nd. That the defend- j 
 ant had a right, us such Surveyor, to close or [ 
 alter the ditches along the highway, as a private 
 proprietor of land in the same situation might. 
 Verdict set aside accordingly. 
 
 The following propositions were affirmed : — 
 
 That as to water not flowing in defined chan- 
 nels, the flowing does not warrant the presump- 
 tion of a grant ; 
 
 That as the owner of the high land cannot 
 ■colle-it such waters in drains and precipitate 
 
 them on the land of another proprietor below, a 
 grant may be presumed where this has been 
 done as of right for twenty years, and this not- 
 withstanding the Prescrii ion Act, c. 100, R. S., 
 4th series, s. 28. 
 
 That evidence that use began prior to twenty 
 years by consent is merely evidence against the 
 presumption of a grant, and may be met by 
 counter-evidence that the use was afterwards 
 as of right, iVc, for twenty years ; 
 
 That the consent by parol to the establish- 
 ment of an artificial course, made more than 
 twenty years ago, is not conclusive that tiie 
 subse()uent twenty years' use was not l)y grant, 
 because such a right could not be conferred lij' 
 parol alone ; 
 
 That a dedication to the public of an easement 
 may be inferred from the like circumstances as 
 warrant the inference of a grant in liie case of 
 a private person enjoying such casement ; 
 
 That tlie surface and ditches of a highway 
 may be altered without liability to an action by 
 the adjacent proprietors. 
 
 Harriioti v. Harriion, 4 R. it (i., 3.S8. 
 
 0. Higliway— Duty of corporation as to 
 
 repairs — Malfeasance — Non-feasance -Where 
 an individual or corporation is liable to in<lict- 
 ment for non-repair of streets, an action will lie 
 at the suit of one who suffers special injury. 
 
 Liability is not, in all cases, to be inferred 
 from enactments placing the liighway under ile- 
 fendant's control. The obliijalion must have 
 been imposed on or transferred to defendant. 
 
 Xo distinction exists between non-feasance 
 and malfeasance, in relation to such liability. 
 Walker v. The City of //alij'ax, 4 R. & (i., 371. 
 
 On appeal to the Supreme Court of Canada, 
 Held, 1. Ritchie, C. J., (litnentini/, that it 
 was the duty of the corporation to keep the 
 streets in good repair ; and 
 
 2. G Wynne, J., diisentimj, that the plaintiff 
 was entitled to retain his verdict, having proved 
 special injury, and the damage awarded not 
 being too remote nor excessive, 
 
 TheCily of Halifax v. Walker, 
 
 IGth Fehruarv, 1SS5, 
 
 Cas. Digest, 98. 
 
 7. Higliway — Negligence — Liability — 
 
 Plaintiff sustained an injury from earth left on 
 the street by V. , who had obtained permission 
 from P., a public officer (Superintendent of 
 Streets) in the employ of defendants, to place 
 the earth there, but not to leave it there after 
 ten o'clock at night. The earth was left on the 
 street all night, but the accident occurred before 
 
1605 
 
 WAY. 
 
 IGOG 
 
 ten o'clock. It did not appear that the defend- 
 ants were aware of the eartli being so deposited 
 or left. 
 
 Hdd, that as the defendants were a public 
 body, discharging u public duty gratuitously, 
 and ha(i no share or participation in the wrong 
 complained of, it having been done without 
 their consent or knowledge, they were not liable, 
 and that tlie action could not be maintained. 
 
 Erain V. The, City of Halifax, 1 Old., 111. 
 
 8. Highway - Title to soil - Tlic title to 
 
 the soil of higiiways laid out uu<ler tlie Statutes 
 of tliis Province, tlu'ougii tlie lands r)f private 
 individuals, and for which they have received 
 compensation, is divested (jiit of tlie owner of 
 tlie adjoining land, and al)solutely vested in the 
 Crown, for the use of the pulilic. 
 
 Halliburton, C. J., and Dodd, J., ili.i.ii>iititi,j. ' 
 Koch V. Daitjiltiiiii , ,]i\.mcH, 1.")!). 
 
 9. Laying out public road - The Commis- 
 sioners and Sessions cannot exercise their own 
 discretion and layout a roail substantially ditlcr- 
 eiit from that petitioned for by tlie ficclioMcrs. 
 
 Queen v. Chipmati it al., 'iTlioiii,, UiO. 
 
 10. Laying out public road - Three mag- 
 istrates, forming a part of tlie Court of Sessions, 
 by whom the return of a precept issued under 
 cap. (i'2 of the Revised Statutes, for laying out 
 a rf>ad, is to be decided, are not the three disin- 
 terested freeliolders contemplated by tiiat Act. 
 
 Queen v, Chl/i»iaii, 2 Tlioin., '2'J'2. , 
 
 11. Municipal corporation— Liability of, 
 
 for negligence in not keeping bridge in safe 
 condition— 
 
 See CORPORATION, 10. 
 
 12. Municipal corporation Liability of, 
 
 for negligence of Surveyors of Highway-- 
 
 See CORPOR.iTIOX, 1-'. 
 
 13. Municipal corporation — Liability of 
 
 town for injury caused by defective sidewalk ~ 
 See C0RP0R.4TI0y, 7. 
 
 14. Municipal corporation - Obligation, 
 
 to guard dangerous places on public roads — 
 Negligence — Plaintift' sustained severe injuries 
 by falling over a precipitous embankment ad- 
 joining tiie public highway. The locality was 
 known to be dangerous, but no precautions had 
 been taken to guard against accident by fencing 
 or otherwise. It was admitted that in the ab- 
 sence of contributory negligence on his part, 
 plaintiff was entitled to recover. The jury 
 
 found that there was such contributory negli- 
 gence, but they also found tliat the road re- 
 quired protection between the travelled track 
 and the edge of the bluff, but yet that it was 
 safe after dark for anyone wiio used ordinary 
 care, and, in tlie face of uncontradicted evi- 
 dence, found that plaintiff had sustained no 
 damage. The findings of tlie jury, and liie ver- 
 dict for defendants based upon them, were set 
 aside with costs. 
 
 Sanlilf, tliat Ciiapter 109, of .')tii Revised 
 Statutes, removing certain dis(]ualiticatioiis of 
 Judges, .Justices of the Peace, or persons em- 
 powered by law to exercise judicial functions 
 does not apply to jurors. 
 
 Kiiiij V. The Miiiiii'ijialily of Kiu<i<, 
 
 7 R. &(i., OS; 
 7C. L. T., 119. 
 
 lo. Pent-way— .tssessment of damages— 
 
 Wliere the (General Sessions coiitirmud the pro- 
 ceedings to establish a pent-way which had been 
 duly laid out, 
 
 Ih/il, tliat l)i>fore such way could lie used, tiie 
 proprietor of tiic land througii wliicli it runs 
 must bo paid the damages awarded to iiim by 
 the jury wiio iiave assessed tiie same. 
 
 Cameron v. McLian, 2 Tiiom., .3'29. 
 
 16. Plea of private way- Proof of public 
 
 way— User— 'rrcs]iass for rciiioviuj,' a dwcllii;g 
 iiouse of plaintiff's which the dcfoiidniit diil in 
 assertion of a right of way over the ground on 
 which it had been erected. The evidence was 
 conclusive as to the fact of a right of way hav- 
 ing been enjoyed by the public over the land in 
 question for a period of upwards of forty years. 
 Hi III, Wilkins, J., di'^si-iitliin, that it was 
 thereby proveil a public way, common to all the 
 King's subjects, and although defendant had re- 
 lied upon pleas of a private way instead of a 
 public highway, still his defence was substan- 
 tially good. 
 
 Comian v. LeWanr, 2 X. S. I)., 1.'?. 
 
 17. Public way subject to certain rights 
 
 of owner of land through which it passes- 
 There may be a public way with the light of 
 the owner of the land through which it passes 
 to have a gate at certain seasons erected across it. 
 Bar/let/ v. Pratt, 2 Thoiw., 11. 
 
 18. Railways - Liability for defective 
 
 condition of cattle guard at intersection of 
 railway with highway— Cattle unlawfully on 
 highway — Onus of showing negligence in such 
 case on owner of cattle— Railway Act of 1880 
 — Plaintiff's cattle were turned out upon the 
 public highway for the purpose of being driven 
 
1G07 
 
 WAY. 
 
 1008 
 
 to jiiistnro, and while tln-re uiiiil Iciidccl, tt<,i njion 
 il('fcn(!iiiit ('r)iii|)Miiy'M liiK! (if niilway in cdiisc- 
 (|n('iii'c (if till; il(.'fuctivi! cduilition (if tlic ciittlc 
 gimnl at the inlersectinn (if the railway with the 
 highway, ami imv 'if the cattle was killed liy a 
 pasMiiit; ti-ain. 
 
 //(■/(/. (1). That the clanse (if the Aet (Hail- 
 way Aet ISMK), re(|iiiriii),' ^'iiai'ds at ei'(issinf,'s, 
 emild iKit lie conHtilied t(i render tlu; cdiMpany 
 lialile t(i (iwneps (if cattle iiidawfully (m llie 
 liij,'hway. 
 
 {'2.) 'i'hat tint daiMa;,'e ncil liaviiiL,' lieen dune 
 at the iiiiint (if inteiHcctinn, jilaintili' was not 
 alisiilutely precluded frcmi recdvcTin^, Imt was 
 sulijccted 111 tile (iiui.s (if siuiwint; that def(!ndaiit 
 niiL.'ht, with tlie exercise (if (irdinary cai<i and 
 dili;.'enee, haveavdided the mischief, and havin!,' 
 failitd td do sd, the verdict in his fa\(ir c'nuid nut 
 stand. 
 
 Whiliii'Ki V. ir. <l'.l. Ilni/icdii Cijiiiiinini, 
 
 (! H. .V (;., 1271. 
 
 1!). Kl^lit or roixl i)('roii(1jiii(*s .servant, 
 
 wliiic driviiij,' at a rapid pact^ (in the wi-onj.; side 
 df till; road came intd cullisidn with plaintitl's 
 linr-c, wiicicliy jilaintitr was injmed. There 
 licini,' no cdntriliiitory nej^ligence dn the ]iait nf 
 )ilaintiir, 
 
 III III, that dct'cndant was lialile. 
 
 Marlii, V. Taijlor, .'! \. ,S. I)., !H. 
 
 '20. Kijflit or way - AbaiHloniiieiit (>r - 
 
 Plea of highway- -User - Wlieic land was used 
 as a way in the early settlement df the cduntiy, 
 liut a regidar pulilie highway was afterwards 
 sulistituted for it, and fnim that time, licing 
 lifty y'jars liefore acticm lironght, the old wiiy 
 was disused, 
 
 III hi, an alianddumenl of the ancient light df 
 way, if any, and that the dwiier of the siiil d\er 
 whicli the way passed iield it exi'inpt frdiii x\\v 
 jiulilic right (whatever the extent (if it may l'.a\e 
 lieen) that had jireviouHly linriiiened it. 
 
 The plea of a highway is not divisiiile., a;iii 
 must lie made out as pleaded. 
 
 S/iiilili, td eunstitute a ])ulilic hignway liy 
 user, there must lie an iiitentidii, express dr 
 implied, of dcdicatinn tn the pulilic, on the pari 
 df the (iwner who permits such user. 
 
 Li (try v. Stmndtrs it III., 1 Old., 17. 
 
 21. Right of way by user -The plaintiflT 
 
 claimed a right of way (iver land (if the defend- 
 ant from a meadow lying in the rear of defend- 
 ant's land to Lhe highway. He testified on the 
 trial that T. (iourley, the ])rcvious owner of his 
 lot df land, enjoyed an easement for thirty years, 
 adv(.;rsely to the party from whom the defend- 
 
 ant derivecl title, Imt he prddu(!ed no deed and 
 did not show that the ea.senient, if mich tlu^re 
 was, had lieen conveyed to him. He also 
 claimed under a deed of the meadow, fioni tin; 
 executors of T. (iourley in iHtil; Imt as there 
 was no evidence, except that of tin; jilainlifT 
 himself, df a cdutiniidiis user liy (idurley for 
 twenty years, and tht; e\idence taken altngiMhcr 
 negativeil such a user, it wa.s 
 
 III III, that neither T. (iiiurley nur his exccii- 
 tdis could c(inv(;y any light of way to tin? plain- 
 tiir, and that the verdict for the defendant must 
 lie susta.incd. 
 
 Tii/i/iir V. Ckiii/iIiiII, 'Jt K. & ('., <>H. 
 
 22. Uishtnrnay (i rant of Trespass to 
 
 T(i an actidii of trespass defendant jilcaiU'il, 
 justifying under an alleged grant df a riglil of 
 way. I'laint id' replied excess, and pnived that 
 a gate on I lie pidperty had lieen reuidved and 
 IdiiJ dd\\ n in the exercise nf the alleged right (if 
 way. I'lainlitl' and defendant lidth claimed 
 their adjiiiniiig hits liy cdiiveyance frum the 
 same grantor, and defendant relied (ill the fact 
 that his d(!ed, which (•dinprised the grant nf the 
 right df way nvcr jilaintifr's land, had liccn 
 rc;,'i>lcrcd huig Jircvidiisly tn the registry nf 
 plaintitl's d(!ed, Imt no evidence was given as to 
 ihc registry or the dale thercdt. 
 
 //'/'/. /HI- .lames,.!., that under the decisidll 
 in '•■on'il V. Miilriiinr, I I!. ki\., XW), the cer- 
 titicatc sJidiiM have liceii tiiidcred and pidvcd, 
 if dlijccteil |i.., anil further, thai plaint id' was 
 "•iililled, under the evidcii.e, in hnid his vcrdiil 
 on the giduiid nf excess. 
 
 /'//• W'catlierlie, .1. -Thai the locus .if llic 
 trespass had not licni idcntiticil liy defeiahuil 
 with the way as descrilied in his deed, 
 
 McDonald, .1,, ili^-ii iiliiiij. 
 
 .\fi'L'iiriiiiii'l \'. I )i iiiii-<iiii, ."i l>. i\; 'i.. 71. 
 
 2:{. \\\'A\\i oFway Obstruction of Plain. 
 
 till' ami one of the defen.iants diviihd a lot of 
 land of which they were tenants in common into 
 two eipial parts ,ind executed a liond or agree- 
 ment in the penal sum of .•^'_'(H» for tlu' piir]iose 
 .,f sc'uring to each of the parties the free use of 
 all roads existing at th<^ time on either of the lots 
 of land. I'laintitt' having lirmight an action for 
 an alleged olistriictioii of one of the roads referred 
 to, and having jiroved no title apart from the 
 liond. 
 
 Held, that the action was wr' ngly brought, 
 plaintiff's remedy lieing an aeti ri on the bond. 
 
 Also, that plaintiff' was estopped by the 
 agreement from setting up prescription, but de- 
 fendant was not estopped from saying that there 
 was no grant. 
 
1009 
 
 WIFK. 
 
 1010 
 
 /'i /■ I'li'iiiip.^oii, .). 'i'lii! wciids ill till; lidijcl 
 <Vu\ not luiiciuiit til tin I'.'isuiinMit l>iit ut iiioKt to a 
 liuoii.su <ir a CDVcn.int imt Id i)li.stiiii:t tlu' wiiy. 
 
 Al^'O, pliiilititl'lriij^lit IjHVf pioviil a lit It; to tlu; 
 Uiiy iiiil(|)ciiilciil of the iignoiiiint. 
 
 Il'/iiiiiiiiii V. Joins ii III., .■> H. & <i., 44;{. 
 
 21. KlKlit or nay I'artllloii of land 
 
 8ubj(K;t to I'liUiitiir and liit: Iwn ilcliinilants 
 pnrcliiisi'il a ticid, (liviiliMl tlio front |iortion into 
 lots accoiding to a (n^rtain plan, layini; oU two 
 lots as |)i'opos('(l St iiiits, coionMtini; an existing; 
 stiiMi wilji the iindiviilccl rear portion of the 
 land and fiirnisliing tin' only access to that ri^ar 
 j)orii(in from any existing striM't. 
 
 'I'Ik! defendant 1'. |iureliaaed the undivided 
 rear portion and two of tiie front lots, one on 
 <;acli .side of one of tlic proposuil Htre(!tM, 
 the said lots lieing desi:rilied in tin; deed as 
 lioiindecl on the north and south respectively l)y 
 the street in i|nestion. 
 
 //i/'/, that the- plainlitV was estoppiid as a 
 griiilor in the died to defendant I', from deny- 
 ing that a right ot way was gra;ited over tlie 
 land designated in tiie deed and on the plan 
 miller which the sales were nunU; iis proposed 
 streets. 
 
 //>/</, al.so, that although the land diisijjnated 
 on the plan as proposed streets was snliject to 
 a rigiit of way to the i' ir and to any ol her por- 
 lion of the adjoining lots, yet that as llie title to 
 it rein.'iined in the ]>lailititl and defendants, it 
 was suliject to partition uiiiUm' cha])tir l('"J of 
 4tll lievi.seil Statutes. 
 
 /'»;/// V. /'ilirs il at., ■_' II. & C, i;i!t. 
 
 23. Itight or way Possession, unity of— 
 
 In Older to acipiire a ligiit of way liy enjoynieiit 
 for twenty years, it must lie ])roved that the 
 claimant has enjoyed it for the full period re- 
 <Hiired, ft.i of riijht and if theie has lieeii unity of 
 possession for all or any part of tiial time the 
 cliiiinanl will not have enjoyed as of r'njhl the 
 casement, hut the soil itself. A defeine on this 
 ground to a claim of right of way, is sullicienlly 
 put in issue hy a plea that the claimant in not 
 entitled to .such right of way, as alleged. 
 
 ijiumre, whether a tenant at will has such an 
 estate as will entitle him to sustain an action 
 for obstructing a right of wiiy. 
 
 Smith V. MrDoitiiJil, .'{ R. \: C, •_'«}. 
 
 plaintiff's properly, which he claimed to enji>y 
 liy virtue of user by himself and tho.se iindei 
 whom he elaimiMl for a jieiioil ot u|)wards ot 
 forty years. No user as claimed was proved at 
 tlie trial, but it appeared tiiat plaiiitill' hiul no 
 legal right to use the way as his o\\ n, nor any 
 ] license from the owner to doso. It wasconten- 
 iliril, that, admitling liiis to lie so, plaintill being 
 in possession of the way, or the user thereot, 
 ciiuhl maintain his ai;tion against defendant, 
 who was in no better position, for interriipling 
 him in the user. 
 
 He/il, that the mere user by plaiiiliir of the 
 way in iMiiiimon with other |iaitics, in the 
 absence of any legal right, would not enable 
 him to reeover damages against defendant for 
 obslrucling till' way. 
 
 /■;//> V. /;/'/'■/•, 7 H. it (i., •_'•_'•.'; 
 7 ('. L. T., :!•-'<). 
 
 On aji/'i'i/ III III! Sii/iniiii ('our/ of Ciiiiii.i/ii, 
 I/ilil, at'-'ining the judgment below, Ilitchie, 
 ('. .!., and ( iwynne .1. ilis.iiii/iiiij, that as plain- 
 titr had no grant or conveyance of the right of 
 way, and had not proved an exclusive user, he 
 could not niaint.ain his aetion. 
 
 h'/ls v. Jl/ark; H S. ( '. K., 740; 
 7 C. L. 'i'., :iW>. 
 
 21. W ay of necessity Tlic riglit to a way 
 
 of necessity does not cease by the sulisei|Ucnt 
 construelion of a public road )iy whii.li there is 
 less convenient access to the land. 
 
 ilarilwr v. //o/Vd, 2 'riioin., •J7!S. 
 
 28. Waj of necessity- Wlierc a tenant by 
 
 \ the courtesy of one lot, who is owner of an ad- 
 joining lot, pleads a way of necessity in himself, 
 there ln'iiig a convenient access by the lot of 
 which he is owner, hid tiiat such a plea will 
 not be a good defence. 
 
 The plea need state no more than tii.it it is a 
 way of necessity. 
 
 liulikfuril V. Kiiiiicur, '2 'Ihotii., 407. 
 
 WEIGHTS AND MEASURES. 
 
 inspecting and weighing flour 
 
 .V« HALIFAX, tITY OF, K* 
 
 26. User of a way to which a party has 
 
 no legal right not sufticient to entitle to dam- 
 ages for an obstruction— Reformation of deed 
 — Joinder of parties - - Damages — I'laintitl 
 sought to recover damages against defendant for 
 obstructing him in the use of a way adjoining 
 
 WIFE- 
 Sce HISBAND AND WIFE. 
 
IGU 
 
 WILL. 
 
 1112' 
 
 WILL. 
 
 1. Action against executors - 
 
 So EXECVTOKS AND ADMIMSTKATORS. 
 
 2. Action to test validity of- Costs -Where 
 
 an iU'tion is hronglit to test the viilidity of a 
 will in wliifh all the heirs of an estate are in- 
 terested, the eosts of siieh action should not he 
 home solely by the losing ])aity in tlie suit, 
 Imt those of hoth jtartics shoidd he a charge on 
 the estate in analogy to the practice on feigned 
 
 issues. 
 
 Ziuk it a/. V. Ziid; 2 Old., 17'). 
 
 3. Administratrix witli will annex(>d - 
 
 Purchase of real estate by, when personal 
 assets of testatrix .sulhcient to pay oft' incum- 
 brances— Subsequent parol agreement to sell 
 part of said land, null— Compensation money 
 for laml, right to, and how to be treated — 4th 
 
 R. S., c. 36, 8. 40. 
 
 See CONTRACT, s. 
 
 i. Advancement — Presumption as to - 
 
 Evidence of -Circumstances to rebut it— 'I'lie 
 testator desiring to invest money in the Savings' 
 Hunk and in l)oniinioii live jier cent stocks, 
 aseeitained tiiat he could not invest more than 
 ■■i^UMM} in the live per cents in his own name, nor 
 more than .liilOifJOO iu the four per cents. After 
 investing up to the limit in hoth the four and 
 tive jier cents in his own name, he wiliidrcw 
 part of tlie four \)cv cents and puichased stock 
 for which he obtained ccititicates in his own 
 name as trustee for his daughters and his wife, 
 and also invested money in the four per cents 
 in the same way. .Separate passl)(Joks were 
 prepared for the moneys invested in the names 
 of the da\ighters on which their names were 
 separately written by his direction. Hefore thus 
 investing the nK)ney, he learned, in answer to 
 inquiries, that he wotdd have full control of the 
 money invested bj- him as trustee. In entering 
 the smns in his private book he mixed them all 
 with his own money, and passed the interest to 
 his own credit. On one occasion, in mentioning 
 to his wife the fact of these investments being 
 made, he said he did not know how the money 
 would stand, and that he would have to see his 
 solicitor about it ; but the codicil afterwards 
 drawn up made no mention of these moneys. 
 These circumstances were relied on to rebut the 
 presumption of an advancement. On the other 
 hand he, on several nccasions, told his wife that 
 he had put such and such moneys in the Savings' 
 Bank for Beatrice or for Dora (the daughters); 
 and on one occasion, referring to a mortgage he 
 was about to take up, he told his wife that he 
 
 did not intend to touch her money or the chil- 
 dren's, iiut to pay it olf out of his own. 
 
 //i/il, reversing the decision of Ritchie, K. J.,, 
 that the evidence given as to the circumstances 
 miller winch the deposits were made, did not 
 rebut the presumjition that the money was 
 intended as an advancement to the children. 
 
 JoiKs It al. V. Kinmar t7 al., 4 R. it (I., 1. 
 
 3. Bequest of" all my money in the bank 
 
 or funds" -Tlie testatri.x hcciueathcd to liei 
 grandchildren "all my money in the bank or 
 funds," and there was a residuary he(jUesl to 
 aiu)tlicr party. 
 
 //(/(/, that these words did not include a sunr 
 of money contained in a chest in testatri.x's 
 house. 
 
 In /•( E»tat<- of Catherine Hurry, 
 
 I 3X. .s. 1)., 463. 
 
 6. Conditional devise— A testator by his 
 
 w ill devised a farm to three of his sons in these 
 wonls : ■• I give and ilevise to my beloved sons, 
 Alexander, John and Xeal, the whole of my lot 
 or farm on whicii I now reside ; that is to say, 
 if tliey will lemain on the farm to maintain their 
 mother ami four younger sisters." The sons 
 made partition of the lands, and .sold and re- 
 moved from the same, and never nuiintained the 
 sisters. 
 
 Ill III, tiiat the words in the devise constituted 
 sucii a condition in comiecfion therewith as that 
 for non-performance of the terms of the coudi- 
 tion, the estate devised was sulqect to forfeiture. 
 Sinih/i', that under section ',i, chapter l'J4, Re- 
 vised .Statutes (.'{rd .series), the Court is recjuired 
 to interfere when eiiuilable considerations arise 
 , in a legal suit (even though no exercise of its 
 e(|Uitable powers has been solicitetl by the par- 
 ties, or called forth by the pleadings), and to 
 provide such relief as the circmnstunces of the 
 case demand. 
 
 Mclsaac it al. v. McLfod, 1 N. .S. 1)., '232. 
 
 7. Construction of— Bequest— Uncertainty 
 
 — Election — Testator owned a property on 
 Spring (larden Road in the City of Halifax, con- 
 sisting of a leasehold from the City for the 
 period of 999 years, upon which were erected a 
 house an<l a cottage, together with a barn and 
 outbuildings. The cottage was built when tes- 
 tator acipured the property, and the house was 
 erected subseijuently. The two were included 
 j in one mortgage, but there had been a fence be- 
 j tween the house and cottage for a period of 
 thirty years, and the two had been separately 
 occupied and assessed. By his will, testator- 
 bequeathed to his daughter, M. S., one share o£ 
 
1613 
 
 WILL. 
 
 1U14 
 
 tlie rt'(ii<lue of liLs estate, or, iit her election, 
 " tlie house iind premises owned by me on Spring 
 (Jiinlen Road." 
 
 Hvlil, that the demise was not void for uncer- 
 tainty, but tliat the devisee could elect wiiidi 
 of tlie two bouses she would take ; that liie 
 iiouse and cottage having been rented sepa- 
 rately, tlie cottage and the ground immediately 
 surrounding the cottage having been fenced olF 
 from the remainder of the lot for thirty years, 
 there was no reason for assuming tliat the testa- 
 tor intended it to pass witli tlic liouse and 
 premises. 
 J/./:/'/- V. Sjiih, '20 N. S. R., (S R. & (1.), ];«(. 
 
 S. Construction of-Death by saniR rala> 
 
 mity — No presumption of survivorship — 
 Where two or more persons, and especially 
 where relatives, perish in the same calatniiy, 
 tlie law rccf)gnizes no presiimption of survivor 
 ship; but in the total absence of all evidence 
 respecting tlie particular circumstances of the 
 calamity, tiic m.ittcr will be treiitcd as if all of 
 tlicni hud perished at the same moment, and 
 cimse(|iuiuly none of the parties will be lield to 
 hiive iransmitted any rights to tile other. 
 
 A testator, .1. C, by his last will, be(iuealhe(l 
 a ccitain fund to trustees in trust after paynjeiit 
 of an aniiuitj' of t".S() sterling to E. H., and a 
 disposition of the remaining income diu'ing the 
 life of his da\igliter, L. C. (who was illegitimate). 
 Then on furtlier trust, after tbe decease of liis 
 said daughter, to transfer and dispose of the 
 said fend to such of her children or grand- 
 children as sliouM then be living, in such parts 
 and piopiirtions as she shoulil appoint, or other- 
 wise in eijual shares. 
 
 By a subse(jv,ent clause be provided that, 
 should iiis daughter die " without leaving any 
 lawful issue," that the fund should lie paid to 
 his nieces in equal jn-oporiions, or to their law- 
 ful issue then living. 
 
 He further provided that the above bequest 
 to his nieces should be subject to any legacy or 
 legacies, not to exceeil in the whole i.'KKJO ster- 
 ling, which his daughter, in case slie should have 
 no lawful issue, might by her last will give and 
 beijueath, notwithstanding her coverture. 
 
 L. C, shortly after the death of the testator, 
 married H. S. B. , by whom she had three chil- 
 dren, and mailc her will after lier marriage 
 (under the power reserved to her iii the will of 
 the testator), whereby she bequeathed out of 
 the said fund to her husband, H. 8. B., X600 
 sterling, and to her mother, E. II., £400 ster- 
 ling. She appointed her husband executor, and 
 he duly proved the will after her death, as here- 
 inafter stated. 
 
 I L. ('., thi;n I.,. B., with all her children, tlirce 
 
 I in nund)er, embarked in February, lS(i'J, in the 
 steamer " Wiesliach," bound for Halifax, but 
 
 I neither the steamer nor L. H., nor any of her 
 children, ever arrived at Halifax, nor had any 
 
 j information been since received of the steamer, 
 
 I nor of L. B., nor of any of her children, nor 
 what had itecome of them, nor liow or in what 
 manner the said steamer was hjst, nor how or in 
 what manner the said L. I!, and her children 
 died, and which of said cliildien died Hist or 
 last, lint it was assumed tliat some time during 
 the year Isti'i the said L. 15. and all the children 
 
 , that she had liy the said H. S. B. (wlio survived 
 her), lieing the three mentioned above, jierislied 
 on board the said steamer " Wiesbach," that 
 foundered at sea under circumstances unknown. 
 //(A/, first, that tiie fund could not be assigned 
 to H. .'"<. B., as the heir-at-law of the children 
 of himself and of L. B., because such children 
 were entitled as should be living at the decease 
 of F^. B., and there was no proof that any of the 
 children were so living, /. (., that any of the 
 children survived iiei, and, siic having lieen 
 illegitimate, the title of iier children depended 
 entirely on the will of tiie testator. 
 
 Secondly, that the tuiiil could not be assigned, 
 to the nieces or their lepiesentativcs because 
 their title depended entirely on the daughter L. 
 B. dying without leaving any lawful issue, and 
 there was no proof wiictluu' she did or did not so 
 die, /. »'., whether her children did or did not 
 survive her. 
 
 Thirdly, that the will of L. B. could not take 
 effect because .she was only emiiowercd to be- 
 ((Ueatli the I'KJOO sterling " in case she bad no 
 lawful issue," and she had issue born, and there 
 was no proof of survivorship between her issue 
 and herself. 
 
 F,astly (there being an intestacy in the events 
 that happened), that the whole of the fund must 
 lie distriliuted among the next of kin of the 
 testator, subject to the payment of the annuity 
 to E. H. 
 
 The question as to whether the intestacy 
 should be computed from the time of the death 
 of the testator, or from the date of the events 
 which produced the intestacy, was ordered to 
 be argued, and the decision thereon reserved 
 
 , until after such argument. 
 
 ' Hartxhore el at. v. Willcins et a/., 2 Old., 276. 
 
 9. Construction of— Death — Intestacy 
 
 from what time computed — For the purposes of 
 I distribution among the next of kin, intestacy 
 i will be computed from the death of the testator, 
 i and not from the date of the events which pro- 
 I duced the intestacy. 
 
Kil". WILL, IGK) 
 
 • I. ( ', liy lil> Ntlll lirijIii'Ml liril III lii.i iMtlllil III llii' ti.iliLlc), III Mllii.-i li'i'i'iM'il aM ililrli'^l uri 
 
 4lall;^lili'l', MiM. It., ii I'l^l'liuii rilliil, iiml ilii'M'liI liJH \\ itit'n li';^;i,i'y, iiliiiiuiil lli;^ ill nil In I liii \tliiili' 
 
 (if llir ilrillh willlHllI l.iwtlll isMlll', il W.IM 111 lie JhlnrMl llllll NMilllillil'illM' llll'li'illl. 'I'llis WilMlinl 
 
 illMili'il .illlollg llJH IlilM'i'H ill i'i|ll,il |ilii|ii'l I |iill'>. ;illll|iil'|/i'i| liy Ilin W ill, lilil hlir illil Mill iiliji'rl hi 
 
 Ml,'^. 11. ii;ul rliililli'll, lilll hill' uliil liny |ii'i i.ilii'il It, III' ii|i|ily tin llii' iiilrii'^l IhihiII, I tili'liil.iiil 
 
 111, Ni'il ill lilt; siUlir ,illi|i, lllf inrlllll,'il.ilii('.s iit llic 1! Imiili (■.■<,s, a« .i.s,-.|;;iiic, liiiN iliK rliiiliii'il llir liiiiil 
 
 ciihuiiily lii'iiig iillcily iinkiinwii. 'Ili(;in lii-inj^ ili'|ii.,iiliil in llii- I'riijilir'.s Kimk, 
 
 III! |)ICMIIII|llilill 111 lil« llllll llir lIllT .slllMM'il //«/,/, l|i;i| lIlc illili ll'I'll llllili till illlrll'^l lllnlil 
 
 llir rjiijilirii, llir lllirr.s nilllil Mill ) ilKr lllii ii I I III' llirvull, lull lli;tl, illilc|icllll(!lll ly iil I lli'l r ml i I 
 will, illlil llll: lllllil riill,Mi|lll'lllly \Ulll lii.l,C, f,sl, il.-l llllll' SVa,-< 111! I'Vllll'llic llllll .Ml,-,. ,\l,lllli 
 IlcM III kill, ,siiii liiiil ,siiiii'liiiiii'il lliu ll.'sr 111 lllf iiinlii'y liy liri 
 
 Till' i)iii',sliiiii u,i,i ii.^ Ill tin; ilivi.siiiii 111 iIiIh IiuhIiiiihI. |ikiiiiliir, ii,s ll'll^ll■(' lur liii ami lui 
 flllpl lUiiiilig llii: iii'\t III kll.. i.e. hail a liintlici ilijlili rii, \\a,H ciililliil In an aim mi it iijiial In llii' 
 ami a ,Mslci' wliii |iri'i|i'i'i'a,s(;i| llllll, ami a ,si,-<li'i' liakimr iil I In- lc;^any aflcr iliilml iiij,' llir ililil 
 Sl\n. W. w liK ,-.111 \n I'll llllll, lull ilinl lii'fiili' tin: iIih' l,y ,\l,il lii'-uii, lull llial llir a,-i,si-m'i' \\a,-t 
 OCclirirlli'C! Ill llll' i'ala,-illii|ilii: ill »liii'li ,\ir.M. 11. ciililliil In llir aiiiniilil i|i'|in,>iilril III ililric.-^l 
 llllll licl' I'llililrt'li ptuisliril, li.'avillg iwn ilail^'lllri'.s, llirinili, a,< llir ( nml niirsi |il'r,M|inir llir mi'i{Iii 
 VV'lin.sr r.lii|ill'ril nnw rlailiinl a , shall' in llir lllllil, r.srriii'r nl t hr wilr ill I lir hll,sliallir,'S ri'ri'i|il n|' 
 If .). ('.'» ililr.slary wa,■^ In lir riiiiijiiilril linlii llir ihr inlcirsl fl'iiiii yrar In yrar in ali.-Hrlii'r of \ "ly 
 tlliir nf .Mrs. 11. ',s ilralli I liry Wniilil lir r\i'lm|ri| ilea l' r \ nli'Mi'i' In llir rnllll'aiy. 
 as I HI 11^ rnl llll rials Inn rrninlr, if finlii I In.' I iinr II iiiil( v v, /'lo I'm/i/i '.-, IJiiiil: nf' lliilifiix it nl ., 
 <if Ills nwnilralli I liry wnlilil li,; nil it Inl tniiiir K. I), |).,!)|, 
 
 ihinl nf llir fliml, /. r., Iliril' liinlhri'',s ,s|ialr, I 
 
 Ihlil, llllll llir inlrslary liili,sl lir rniii|Milril ' 
 flniii Ihr iMiir nf .1, C'silralh ami I hri ,;fnlr H- COIIStnidlOII Of lU'lrS Of lllC IMMI) , 
 
 llii's \M rr riilillril, iiicaiiin;^ of Kt;iiiiiili(lrr, vi'Htt.'il or cnntiiigriil 
 
 Jltui.horiK >l <l/. V. lli/Lur^,/ >i/., -^ Irslalni' (.1. I',) ilrvisnl rri'laili iral ami 
 
 I N ,'s I) I'JS |irisnliiil csl.'ilr In 1 1 iislrrs fnl' I lir lifliclil nf Ills 
 I wn rliilillrn (a i|aii;^lili'i ,'iml a snn) in IrirsI In 
 pay iinr llinirly nf I hr Irlils, issilcN iiliil pi'niils nf 
 10, COIIStrilCtion or (>. K. lilSSOl, )))' his tin- iral rslair, ami nf ihr inlnrsl nf llm pnsnn 
 Mill, I in I 111 'Ml I nil In his i|ail;4lilrl' ,Mai i.i ,M,illii'snll ally In ami fnl' llir lirnrlil nf his ilall;,'lilri' iliir- 
 ■C'J.dlll) "fur hi'|-.^rlf ami hrr rhililrrii, issiir if ini,' Iht lifr, ami " llpnli ihr ilrrrasr nf his ,saii| 
 lirr iiiai'iiaj,'!', nnw nr hrir.ifli'i' liviiij,', In lir rx ilaii;ililri', hr ^avr ami liripiral hril the saiil 
 t'lnjii. fi mil iuiy lirlilM or lialiilil irs nf hrr hiisliaml ' inniily nf his rral ami prrsniial rslair in .\n\'a 
 J)nnalil Malhrsnii, shniilil hr finiii aniilriil nr Smlia iililntin; hrirs nf hrr linily lawfully In- 
 inisfnillim; lirii!aflrr lirrniiir rniliariiusnl, with ; gnl Irii, fnrrvrr, sliair anil sliart; aliki!." Iliialsn 
 powrr ill his (■.xri.'iitnrs In iiivrst llit; sanir at lirr tlrvisril thr ntlior liinirly nf his rual iinil pi.'i'.-iniial 
 <lrsiir ill j^nnil smiiilirs with intrrrsi fnr hrr t'stato in liko inaniirr tn anil fnr the limrlil of 
 Hiiil hrr rhililrrn's liriiriil ," Kiihjrrl I n a. ilriliir- | lii.s snn iliiriiij; his lifr, ami, "upon thr ilrrriiHr 
 tinii nf L'ST'I iliU' ihr Irslalor liy l)niial(l .Mallir- I nf his .sail! snii, liu ga\r anil hi.'ijiu.'iitlieil thr.saiil 
 Hnn. Thr pl.iintill', In^^rthor with .Malhr.snii, rrlnainin;.; ninirly nf his rial ami prr,sonal rslair 
 trslalor's wiilnw, ami alinlhrr wcrr appninlnl in N<i\ a .Srnlia iiiitn ihr lirii sof his limly law fully 
 C'^ri'iilni s. Ti^slatni' ilinl in I.Sdl, llirir lii-ing In Im; lii!gnllrli, fnrrvrr, sliair ami sharr aliki, ' 
 111, thai liiiir anil at ihr linn; nf tin; making nf j Hr filllhrr prnviilnl that "in tlii;i;v(;lil nf tlit; 
 tin; will, rhililrrii of his ilanght(;r living, liiil ' dralh of rillirr nf his .saiil uhililrrii (('('///i^k/ iVik^'k/ 
 tin; rslatii wiiH not srlllril until .Srptriiilirr IS"-), In irs ns n/oriMiiil, llioii the survivor to liavi; llir 
 whrn Malht'.son ilr|insilril in llir I'uoplr's Hank ; whole of the rents, Ls.siie.s ami prnlits iluring hrr 
 ^tiUIHI, lieing the lialanri; of the lie<|ueMt flue IiIh : or lii.s life, anil at her or lii.s decease to ile.scenil 
 wife after (l(;iliic'tilig the ainniinl iliir liy him to ' to lliu lawful liriis of hrr or his lioily, lawfully 
 the estate, with iiitt;rest to the ilali; of the ile- I to lie liegotl(;n a.s afore,saiil." 
 
 posit. Ill the same inoiitli lie iiiaili; an assign-! There was also a devise over, in the event nf 
 ineiil iiniler the Jiisnlvent Ai't of ISti!). During the death of Imlli his eliihlreii " wilhnut law fill 
 the ten intervening years the ainnunt had lieeii heirs," of "all his estate, linlh real uinl persnnal, 
 used liy him in his Imsiness, and fnr his family, | in the I'rovince nf Nova Seolia," to his lirother, 
 though without the knowledge or .sanetion of j and of his money in the funds in Kiigland to S. K. 
 his wife, and entries were made liy him from : and M. H., share and share alike, upon their 
 time to time in aceoualH rendered to the widow , marriagr or attaining the age of twenty -one 
 (who with hiiiiHcIf chiefly niaiiaged the business , years. 
 
1(117 
 
 WILL. 
 
 Kil.S 
 
 'I'lic li'.-tliilof'.s Mini iliiil iniiiy V'H'.-' i'K" ^^'ili ilicii .ir ^'iiiiiilrliililicn |ii«;uil,s lii.t or Iht xli.iri; 
 
 mil Ir.ivili^^ iiliy iMHIir. 'I'lii' (liiii;,'lil i|- iljril in of iiiy <'Ml;ilf. 
 
 I''rlil limy , lHli."i, IliU ill}< llilil llvi- 'llilillill (soils), III till' lifllilll ll rlilllsi' llli' llsllltor Mild: To 
 
 foiiidl svlioiii Hill A iNcil liiT. 'I'lic son, ,l.( ■. I'. II., prrvnil cli^|iiili' .iMij (|is,salis|'iii-lioii In llicilivi- 
 
 who |it'('i|<'i'iMsi'il Ills MiolliiT anil ilii'il \\illiiiiil sjoii of my |ii ojin ly .'itlrr my ilnil li, I may iniUr 
 
 |ra\ ill).' any I'liililirn, was lis Jul; al llii' I jini' of till' siniii' a|i|ioi'l ioiiini'iit of my Mininlii' I'sliitr, oi 
 
 ilralll of till' trsliiliil , .iinl liy .'i \vill ni.iilr in |ial ts I Inl rof, lo l.iKi' I'lli rl as ii'S|ii'i'l s liiy ell il- 
 
 .May, Is.'iii, ili'visi'il ami lM'i|iiral Inil all Ills iliiii ami ;.'r.iiiilrlnMi rii, or somi' of t lii'iii, afli'i 
 
 "I'sliiti', ii'al anil |iiM'.soiial, wlii'tlii'r In posM's my iliivt li, il is iii\ s\ill,,inil I ijo m iIit, t li.il all, 
 
 mIoii, rciniilinli'r, ri'Misjon oi t'\|ii'i'taiii'y, iiirlii any, ami ivcry |ioilloii of my .Minnilli' I'statr, 
 
 hIvc of Ihi' (llstrilnil i\i' sliarc Im liail of Ijii' « Inl lirr niaisli land or n|il.iiiil, \s linli liy ilccils 
 
 (^sliit.v of Ills l.ilr f^ramlfal licr, .1. I'., 1 1 lir Irslaloi ) i\i'iiiliil or loin- I'M-riilnl liy iiii', I liaAii'on 
 
 to wlil'li 111' «as inl ll It'll iiinlir Ins will, or in M.iiy M'ynl or shall lonvcy, oi liavi' i'.\|ii('sscil oi' shall 
 
 w ay ili'iiv alili! I lironyii or from him " to his wifi' <'\|)rrss to loiivi'V to any of my I'hililri'ii or 
 
 I'l. .\. II., Iirr hills, ami ,assli;Ms fori'M'i'. L'r.imlrhiMi rii, or wliirh i h.nr .illolliil or sh.ill 
 
 /A/'/, on I III' aiilliorily of ///;//(/ y. driliir, allol ami a|i|iorliiiii to any of my ihililrcn or 
 
 ."i ll. i\ ( ., .slid, I III- (|iii ,1 Ion 111 ra-,i's ollliis kiliil, ),'ra,lii|r|ii|ilri'li, ami ^liall part ii'lllarly ilcsi'liiii^ 
 
 lH'iii;{ iim^ of iiicri! Inti'iil Ion, ami as till' lan;^ii.i;;i' ami ili'^i^iialr In any wrilinu' liy ini' sIl;miiI, 
 
 of a will must hi' I'onsI rinil in I hi- lif,'lil of i-ir sh.ill, m I In- iln i.-.ion of my i-la|i', ln' Inrlii'lril 
 
 I'limslaliri'S siirroiimllti;^' I hr tr.- lalor at I lir I liiir III I hr shares of sinji I'liiMl'i'll ami l;i a mli'hilill'i'li, 
 
 of lis I'Xi'i'iit ion, .'iiiil on I'oiisiili'r.'il ion of all its ami I'M'ry of my I'hililrcn ami L;ranili'liililri'li to 
 
 |ii'ovisloiis ; ami till' \v ill in this lasf liciii;.' inaih' u li'iii or In whosr iiaiiii' I li.ivi' maili' or shall 
 
 in .No\ a iSc'ol 1.1, whi'ii' |ii Imoniiiil mi' i> o|i|iii>i'il iiial>i' any siiili ilri'il or .illol imiil , Nhiill aci'))! 
 
 Ill ihi' i^ciiiiis of ihi' ill . I inn ions of the I'oiinlry llii' ;-.>A\tv. low.inls tlirir .'-lians rrs|)i'rl ivcly in 
 
 and 111 lh(^ ii'llrr oj llir laws n'L,'iilal inj^ llii' my cstaii', iVi'. 
 
 ili'sri'iii of ri-,d I'^l.ilr, 'I'uo I'oilli'lls Will' niadr li,\ llic h'sl.itor, mir 
 
 Thai llii- VMirds " hi-irs of ihr liody " In tin ih;' 'J'Jnil Ortoliia-, iMIi'J, and llii- ollni on I hr 
 
 uill of ihi' ll st.ilor, .1. I'., Iinilil ihildnn, .uid l.'llh Sr|i|i'iiilji'r, I.Sdl, lirillL^ Ihiday liifoir Ills 
 
 that .). (i. I'. II. look a Ni'strd rcinaindcr in fi'i' dralli. 
 
 at t hi' drat ll of I hi' I rst at or in t hi' really di'\isi'i| || ,i|i|)i'.iii'd I Ij.il a I I hi' I inir of I hr rM'i'ill Ion 
 
 111 his niol lirr .IS afdli'said, iilid .1 V I'^li'd inlil'i'sl of Ihi' will,lhrii' w.is a, ri'd liook In r\is|i'lii'r, 
 
 ill the iii'i'soiiilly so lii'i|iii'allii'il to her, whii'li in wliirh tin' tislalor li.id madi' I'i'ilain cnliii's. 
 
 o|ii'iii'd to let, in lii'i' aflcr linrn ililldri'ii sm'- Siili.-('i|ni'iit lo iln' i "vi'i'iition of tl.,' will. Iml 
 
 rrsslvrly, .■Mid llial all llii' inli'ir^l of ihi- s.aid jiri'vioiis lotln' I'M'cill Ion of I hi' last I'oiliril. il 
 
 ■ I. (i. I'. II. Ill llii' s.iid II ll and |)i'r.^oiia,l c^tali' a|i|iiari'd ill il In' l%i'|il amilhi'i' hook lallcij I hi' 
 
 IllSM'd lolii, uidou iimirr his will. Mark hook, in which hr wiotr lllr |ollllV\illL; 
 
 J/iiJiliiir/'iii 1 1 (i/. \. //(///7)///-/o/(, '.' Old., .'il'-'. |iii'farr: " 'I'liis hook is k('|il hy liir, and Ihr 
 
 rhaiL'is, I'll! ill's .'ilid nirmor.uidlims liiailr hnr- 
 in air in ronfoiniily willi ihr rlaiisr , in- 
 12. <'ons(riH'(loll or IncoriXiration of snlid in my will, I'Mrnud on tin; Hth .Mari'h, 
 
 hook.s, ■S.-r.., ill lti'|)illili(','U.ioii .\ lr-,l,ilor in |.S(i'_' ; ami I drsiic and dirrrl tli.it ihr iilnniints 
 
 Ihr loiirlri'lil ll rlail--i' of his last w ill, ('.MM'liliiil j liL'trin rliar;^'('il .I'^ainst , and ihr srMial allnl 
 
 ,Slli .Mai'ili, ISli^, .said : liiasmiirh .is srvrr.il of niriits and dlvision.s of my .\liiindii' rjlatc and 
 
 my rhildrrii ,im[ /^'ralidrliildiin liavr rrc'ilNrd olhn lands iiiid |)ri'soiial |)io|ii'rty inadr to iny 
 
 anil may rrrt'ivr from nit: advaiirrs In iirrson.il rhlldrrn ami thrir lirirs shall hr .idhrird to, and 
 
 or rral t'slair, or in Iml h, wliirli il is my dr^irt' liind all iiartirs on I hr dist rihiil imi of my est ale, 
 
 should hr rliar^^rd aL^ainsI llii'ir irs|)rrli\r hoi h rra I .i ml |irr.-o|ia I. .\Mii-- .s^|;.\ \I AN." 
 
 shaifs, |)oi'lioiis OI' inirrrsl, in ami out of my 'riii: rnl iiook t'ontainrd tlir follow Iiih "'niiyi 
 
 t'slalt' or soiiir |iai'l Ihrrrof, I tli> dii'i'i'L and |ii'o\rd also to lie in tlir h.'imlw ritiii;; ol the 
 
 oidrr, and my will \<. lli;il ,ill ,mI\ alirrs of rr. il Irhlalor: ".Sr|il. 'JT, 1>*II. 'I'his hook I- in- 
 
 or |)iisoiial |irii|ii'rly and all siiiiih and rharj^rs U'lidrd hy me to niakr rharj^rs to earli mrmlirr 
 
 of what natiiri! or kiml .sot^ver, wliieli liavi; of my family us oeeasion may rei|iiire froin linitj 
 
 hri'ii or shall lie hy iiir rnlrird or stM down as lolinir as 1 may think jiisland ei|iiiii and rl;,dil, 
 
 adviuieemcnl to or rhai'i^ed to or aj^ain.st, any of il hiing my ili:sirr to make all ei|iial as ri'jai'd.s 
 
 my i:hililreii or '.'r.indcliiltli'eii, in ii hook ll.setl or my reiil and personal pioprrty, w hirh m.iy he 
 
 111 he used hy nie for that |)iirposi', shall, in Iht: left liehind when I have for a hrller world." 
 
 dist I'ihiil ion of my estalt:, stand a,s advanrenient This hook also rontaiiieil the following tiitry 
 
 ni.-idt! to such ehildreii and grandrhililri n vi'- wliirli, however, was srored arross hy diagonal 
 spi;i;tively, and he taken hy each tif siieh t:liil. pencil lines : " This hook i.s kejil hy me, and the 
 54 
 
1G19 
 
 WILI. 
 
 I(i2(> 
 
 cnlricH uiiil chiirKc^H tlit'icjii i^'ivcii iiiinlc in 
 iiccon lance with tlir i'Iiiumch iiiHt'itcil in my will 
 rxcciitnl on tlni'-'.'fril ScptfnilKT, IS(il, nlcirinK 
 to lliii Hiinu'. —Amos Skaman." 
 
 It iiplirarccl liy llid tcHliinony of K. S., one of 
 the cxccntorn, that the tcHtalor, ahout a month 
 iH'fdi'c liiH ijealh, hiiiI the rt'<l hook to hinj, ami 
 that hi! Hhortly after miiil to him refeirin^ to 
 thiH ho«)k " keep it, take eare of it. Vou will 
 Rco hy thai how I want itiy property diviileil." 
 The testator al.Modirecteil V., who look the hook 
 to R. S., to hIiow il to liiH (teHtatorV) HonM, an<l 
 to «ay t(i them " It in to he the tinal (livinion of 
 my ewtate aH the hook will show them." 
 
 It also appeared that the testator' kept lUv 
 black hook in his own poHsession, and that he 
 told A. Mel''., llu! (!xeculor, that he had made 
 the red hook null and void. At the time of Ihi; 
 exeeuti(»n of the last codicil, ho told A. McF. 
 that tho Ix-Hjk waH in liiH rud box where he kept 
 hiH money ; that this hook containeil his direc- 
 tions respectirif^ thi; disposition of his property, 
 and that he rtdied on him tose(! that hisdiri^ctions 
 as therein given were carefully fullilled. The 
 testator also told A. McK. that he woidd get 
 the keys of his hox from Mrs. McF. A. McK, 
 took the keys and founil that one of them was 
 the key of this red ))ox. He opened the red 
 box and found the black iKiok in it. 
 
 A. McK. testified that this was the same book 
 which the testator had before repeatedly shown 
 }iim as the book kept in connection with his 
 will. He further testified that the entries and 
 writings in the book were entirely those of the 
 testator. 
 
 Neither of the codicils contained any reference 
 to either the red or black liook, or to any cb'eds, 
 writings or documents of any kinds except the 
 will itself. 
 
 A paper (marked No. l.S) was found signed by 
 the testator, and containing allotments of land 
 to his sevei'al heirs, all, except one, at the like 
 valuations contained in the Idack book. A McF. 
 prepared this paper after tho execution of the 
 will at the testator's request, wlio returned it to 
 him signed with the valuations filled in, and 
 told him to keep it with his will. 
 
 Nine deeds were found signed by the testator, 
 three dated 'J5th March, IS54, and six dated 
 14th ilanuary, 18()4. A. McF. staled that the 
 deeds of ISM were hande<l to him Ity the testa- 
 tor in 18(52 or ISG.'l, who told him to retain them 
 aa escrows and deliver ^iiem to the parties, or 
 those who init,'ht represent them, after his 
 death, should he (testator) not deliver them be- 
 fore. These deeds were never actually delivered 
 to or accepted by the grantees, but they were 
 registered by A. McF. after the testator's death. 
 The deeds of 1864 were signed in the presence 
 
 of ('., a sidiscribing witnexs, to whom tcHtalor 
 said al the time of suliscriplion : " Perhaps jou 
 may be called on some day lo piove thcHc dceilH, 
 and perhaps not." Ti'stator retained thesu 
 deeds in his possession until his death, but lohl 
 A. .McF. shortly befo'c his death where to get 
 them, anil that he u islicd him to lake them for 
 delivery to the parties when he (testator) waH 
 goni!. 
 
 //</(/, as regards the books and papers, /h r 
 KesKarres and W'llkins, ,1.1., .lohnslohi', F. ■!., 
 iliiHiiilitiii, that the red book, and I he eiitrien 
 existing Iheiein at the (inie of the exeiiilion of 
 llie will, were alone irrrorpDraled in it, and that 
 th(! black book rrriist be enl irely lejerled, as also 
 all entries made iir the red book subsei|uenl to 
 the execution of the will. 
 
 /'(;• tlohnstoire, F. .I.--That ihe lilack lioiik 
 aloire, with the entries whiih il coirtaiired on 
 the i;Hh .September, 18(14, the writing No. I.'J, 
 and all the deeds wer-e so incorporated in the will. 
 
 /'*r Wilkins, ,1. That the deeds of I8."i4 ami 
 not those of 18(14 wer'e so irrcorporated. 
 
 liy another clause of iIkj will the testaloi', 
 after reciting the inrmediate division of that 
 portion of his .Miniidie estate called the .loggiirs 
 would be irrjuriorrs to the jirolitable working of 
 the (juarries and ledges of frc^estonti ther'eon, 
 devised to A. Mel'", for a term of years all that 
 [lorlion of the shore fioirlagi' of his .Mirrudie 
 estate lyiirg belweeir Dogfish ('ovo and I^ower 
 ('ov(!, wilh lire larrds ad joiriirrg, i*tc. Iir referring 
 to the reversion of this property in sid)sei|rrent 
 clauses, the testator described it as " the said 
 pr'operty called the doggins as her-einbefore 
 described," " my doggins estate before men- 
 tioned," " the said .(oggins eslale," 
 
 Il appear'ed that llie prirrcipal and more 
 valuable ([irarries wer-e in Lower Cove. 
 
 Held, ptr DeslJaries and Wilkins, d.I., dolin- 
 stone, K. J., expressirrg no positive oj)inion, 
 that as the word " b(!tweer» " was unarrrbigiroirs, 
 and was sensible wilh reference to exlririHiu 
 circumstances, that it must be considered iir its 
 strict and primar'y .sense, and could not be con- 
 ti'oUed by the most conclusive evidence of an 
 intention to use tho word in another sense, and 
 therefore, that the (juarries both in I)f)gtish 
 (^ove and Lower Otve were excluded from this 
 devise. 
 
 Hy the tenth clau.se of his will, the testator 
 devised to A. McF. (the side executor named in 
 his will) certain lands in trust for the use and 
 toward the support and mainteirance of a public 
 school. IJy the codicil execui id just before his 
 death, the testator appointed R. 8. execirtor 
 " in connection with A. McF. with the same 
 power and authority as if his name had been 
 originally inserted iu the will." 
 
1G21 
 
 WILL 
 
 1022 
 
 //(/(/, lliiit K. S. wiiM iiiit II iniHiri' with A. 
 McK. of tlii^ Hiiid IiiiiiIh. 
 
 Ity the Hi'vcnti'ciitli cliuiHr, tlit' tcNliitui' ili 
 ntrtcil lliiit tilt' ri'siiliH' III liiH I'stitti' (i^xix'pt iiH 
 
 ('iintiollril liy picvinlis rlallsiH) mIiuiiIiI lie ili\ iilnl 
 
 iliiri' iif wliii'li, Niiliji'i't 1)1 1'i'i'tiiiii I'diiilitioiiH, ho 
 M'si'i veil fill' liiM Niin ( '. Till' will I lini coiiiiiiiiuil : 
 " liiil III III! I'lLNi' nIiiiII liny ciciliidr nf i^iiliur of 
 my I'liililn-ii, or miy IiiinIkiiiiI of uitliur of my 
 I'liilili't'ii, lUii^lili-i'H, liiivt' liny rliiini oc ilcmiiiitl 
 inlii rj^lit i'i|iiiil hIiiu'cm, lie tlicii ili'viHcil si'V- ii|iiiii llir hiiiiI t'xi'riilni'i'H iir I'xt'ciitiir'H, li'iiHtci'H, 
 «!nil (if tJHwit hIiui'cm ill IniMl in It. S. Inr rcrliiin luil llirir n'Mpfi'iivi' mIiiucm hIihII lir kiipt, 
 litiliinl pi^l'Hiiim. < iiinl the ililcn'Mt, iiiiIh itiul pinlitH tliri'cnf, hIiiiU 
 
 I/ilil, /if-r •liiliiiHtiiiK', I''.. >l., tliiit till' ti iiHlH I III- piiiil mill iillowiiil III lliiMi iiiiiiiiiilly liy llx'ir 
 well' not. iit'i'i'Hsiirily iiiNcpHi'iilil)'. ; m I iiisIii'm iiiiil iIk' Hiiiviviii'H of tlii'in iliirin^ 
 
 |{y tilt! twciity-tliii'il cliuiHt! nl tlic will, lin' tlnii' ii'Hpiuiivc livrn, mill iln^ir rttct^ipiH only 
 tcHliilor |)roviilu(l thiit fmiii llic n^MpccliN i' mIihi'cs ' mIiuII opfiiiii' an ilinclim'(<i'H," 
 in liiH <!Htiil(! of till! i^liilili'cii of liiH iIi'i'I'iimimI Till' ilaiii^'litt'i'M, ('. M. mill A. K. I''., having 
 HoiiM, Aimm T. am! ■ImncH, iIhtc. nIioiiIiI he iipplicil for iiiiiiii'iliiili' payiiu'iit of liie HJiai't^s ilit- 
 ahatud Hiich ailvimccs aH lui hiul iiiailo to the viwil to tliciii, iinli'iiiiiint'lril liy any trust, 
 Haid HonH n^Hpi^ctivoly in tlniir lifcliincs in like //(/»/, I hat Ihii I'liMir iliroclion anti intttntioii 
 nianni'i', ami cviih'iu'eil in tlin Kaiiie way iih in of thd tfmlator was that tho HharuH of tho 
 till! I'liHc of tin: lulvani TM iiiiidi' to IiIh Hiirviviiij,' ilaii).!lili'l'H nhoiild ln! Iii'ld and invt'Mtcd liy tho 
 
 children. 
 
 liiislci'M dining I'livi'itiirr and tlu! iiH'omi! only 
 
 //(/(/, /Jt!/* .JohliHloin', v.. .1., that the advaiH'i's paid to then 
 
 I'Ik' cosIm of all partif'M wero directed to lio 
 (laid out of till! I'Htalc. 
 
 t'litili 1 1 III. V. Fiiuli >t at., '_'<! N. S. K., 
 
 (S \i. *.().), 71. 
 Mlii'iiH'd on nppcal to the Suprcini! (.'oiirt of 
 
 If. s. (;. K., tiiiic, \n: l. t., kj. 
 
 to Ih! rharj^ed ajjaiiiHl the tiliildii'ii of Aiiios T. 
 ami .lanii'M could only lie iisci'itaini'd in the Name 
 way as in tlu: caHe of the otli(!r licii'H, and iin 
 (lireeted in the foill't(!eiitli and tifteeiith cI'iiihcs. 
 
 The (.'odii'il of the •Jviiid Oi'tolier, iNlil', pro. 
 vided that in ease i'i!i'taiii di^vi.Hees and h'>^ali:es ' Canada, 
 therein iiani(!d should iiiiike any I'liargeM or I 
 
 claiiiiH iiKainst testator's estate, su.'li eharues | ||^ t'OriNtrUftlOII Of J. W., by IiIh lUHt 
 Hhouhl lie dedileted from the .sliares they iiiiKht ^.jn^ ,^,„„„^, „,|„.,. ,|,|„y.,^ devised all his real 
 l.f entitled to r(!.'eiv.! "either from his pei'Honal j.^,,,,,, ,„ ,,.„st.ees, to let it .lliriiif,' the natural 
 estate or from the rents ari.siiig from his (|uarries ijf,. „f ,,i„ ,^,if,,_ ,„,_ i„ ^.,^^^^, „i„. „|,„„i,i .jj,. |„,f,„.o 
 or .lo>,'KinH hinds." I^j^^ youngest surviving child should attain tho 
 
 J/i/il, i,<r Desltarres and Wilkins, .).)., that j ^^^ of tweiityone years, then until such child 
 the codicil could operate accordiiiK to its ex- , „i,„„|,i ,^t,tn,„ ti.nt, ,^^„._ t„ ,.,,,,,, iv^, the rents and, 
 pressed intent without a contravention of any |,j,,.,. ,„^yi„^ a certain annuity mid charges, to 
 rule of law or eipiity, as it simply imposed a j ,ijvi,i,, ,i|| l.almices eiiually mn.mg all his I.eforo 
 condition on a mere voluntary act of liounly on „„,„tj,„„,,i diihireii, and such further chihl or 
 till! part of the testator. , ,.1,11,1,.^.,, ,^„ ,„ij,|,t |,o horn. The testator, in 
 
 fir .folmstono, K. .J., that tlu! iiir|uii'y was ,^„„t|„.,. p,^,.^ „f 1,)^, vs'jll, clearly indicated his 
 premature until the claims against wiiicli this i„|,'ntioii that upon the decease of lii.s wife or 
 codicil professed to 1m! direitcd wen; asserted „,,„|, I, i„y„„„j,,,Hi surviving chihl attaining tho 
 in distinct form, ami that miy olijection lo it.s j ng^. of twenty-one years, whichever event Hhould 
 execution eouhl only come hefore this Court in ; |,isi hapien, the real e.stme should he sohl mid 
 its appellate juri.sdi<!tion, and must he lir.sl the prmeeds divided e(|ually mnoiig hissurviving 
 raised in the 1'rol.ate Court. children. During the life of the widow a 
 
 III rt h'xta/r o/Siama,i, 'J Old., IH,-|. j ,|,iug|itcr died, leaving children, who claimed tho 
 
 daughter's share of the rents. 
 
 //«/(/, that tliey were entith!il to .such share, 
 JMiiid tt (d. V. Viiilfi et at., H. E. D., 46. 
 
 1.1. Construction of - Legacy — Appeal 
 
 18. Construction of Intention of testator 
 
 — Costs — The will of the Hon. .1. .McC. ap- 
 pointed his daughters, A. K. F. ami ('. M., 
 executrices, anil N. II. M. and I). .S., executors. 
 
 It tlien devised to his executrices and ex(!eutors from decree of Judge of Probate — Costs not 
 all his estate, real and personal, in trust, to sell allowed, on the ground that appellant huc- 
 the real estate, and after paying certain dehts 1 eeeded on a ground not taken below and 
 and legacies, to divide the whole balance of the claimed more than he was allowed— The tcs- 
 proceeds of the estate into twelve eiiual parts, i tator in one part of his will, after devising 
 live of which he gave and devised 10 his daugli- j certain property to his wife for life, directed 
 ter C. M., four to his daughter A. E. F., and 1 that after his decease, the whole of his pro- 
 
lij'2:] 
 
 WILL. 
 
 1{,'24 
 
 |ici'ty, I'ciil, |ii'rHiiiiiil mill iiiImmI, iinluiliii^ tliiit 
 (U'viNcil Ici liJH wile, nIioiiIiI lit' (lividi'il iiiti> 
 
 HOVIUI l'l|lllll Hlllll't'H, mill lliNtl'illlltltll IIIIIIIIIK llJM 
 
 cliilili'i'ii in pritpoi'tiiiii of t'liiir mIhuvx to IiIh two 
 «i)im iiiiil mil' hIi;uc ciii'li to tliri'r iIiui^IiIi'im, In 
 a HiiliMoi|iii'iil puil III' (lie will III' ilii'i'i'li'il tlud 
 iiFtir till' ili'Hlli of Ills w JtV, llic piiitjoii lit' his 
 csfiitc ilcvisnl to licr fill' lifv nIiouIiI lie iliviilcil 
 into four fi|iml nliiiii'M ;iinl ilistriliiitcil i'(|imlly 
 iiinonn I he UMi sons iiml two of tlin ilaugliti'i'M, 
 tlio Hiii'viviir III' siirviMirs <<v ihrir lu-ii's. 
 
 ffilil, tliiil iIh' \MiriIs ill llii' lifst part of tin' 
 will iiiiihI 111' rcail .■•o as to uNccpl that porlioii of 
 till' cslatc ri'i'crvi'il foi' tin' wiilow, or tliat llif 
 Wiinls ill llii' siTiiiiil pail liriiii; iiiiiiiisisli'iil with 
 tliii''^»' of llic liisl )iait iiiusi prevail, tlii' irsiill 
 ill (.'itiu'l' I'asc lii'ilij,' to cM'i'pt till' fstatc ilr\ iscil 
 to ihu willow for life from tlio ^ji-nural '.'state. 
 
 Jii rc^'iiiil to I III' " hoiiit'stuad," luMiii; a ]iortiiiii 
 of till! L'slatf ili'visi (1 to till! testator's wife for 
 life, it was jiroviileil that in ease liotli the sons 
 duelineil to ai'i'e|it il at a viiliiation, it slioiilil lie 
 Bolil mill the pioi'i'i'ils ilivideil into tour ripial 
 whares ainl ajipropiiateil as last ahove, Thi' 
 pi'opertj' was arcejileil liy one of the sons, anil 
 thoru being no provision loiihe aiiplicaiion nt 
 the jiroceeils in stich ease, 
 
 llilil, that it iiinst he treated as jiait of the 
 assets wliieli the testator diieeteil lo he divided 
 into seven eijiial shares and ilistrilmted aeeord- 
 
 iiiK'y. 
 
 K. A. It., one of the testiitor's daili^htei's, died 
 without issue hefore the testator's wile, hut after 
 attainiiii; tlie a'„'e of ."(I, at which age, under the 
 terms of the will, she would lieeomc entitled lo 
 the halanee of her share of the estate, a portion 
 of it lieini,' made payalile at the age of "21. 
 
 Iltld, that after reaehiiig tiie age of 30, her 
 right to her share of the legacy was indefeasilile, 
 tIloii;_'li payuieut was jiost poned until 1 heniother's 
 death, and that her exei'\itiii' was thei'efore en- 
 titled to receive one seventh of the a])))raised 
 value of the " homestead'" 
 
 'J'ho appellant having sueeeeded on a elaim not 
 
 made hefore the Judge of Probate, and having 
 
 claimed more than was allowed, no eosts were 
 
 given. 
 
 Ill re Esfnft of Clark, (J U. & (i., DO ; 
 
 (iC. L. T., 143. 
 
 16. Cons ruction of- license to sell— A 
 
 testator devi ied his real estate to his wife, " in 
 trust to sell and dispose of the same, at such 
 times, and in such manner, and in such portions, 
 as she might deem suilahle and prudent, and to 
 invest the proceeds arising from such sale in 
 some safe and profitable security, and to apply 
 the proceeds arising from such investments in 
 the support and maintenance of herself, and in 
 
 the siipporl, eduialion and in.iinli'liani'e of siu h 
 of his ehildieii as should be under age at the 
 lime of his death, and until such sale to receive, 
 take mill enjoy the rents and prolits arising from 
 sui'li real estate, dining the term of her natural 
 life, and to apply the same as aliiAc directed." 
 
 liy a slibseipient clause he devised and )ie- 
 i|Ui'atlii'il, from and after the death of his wife, 
 all his real and pirsunal estate and the moniy« 
 HO invested as aforesaid, to and amongst IiIh 
 sous, of whom M. was one, their heirs and 
 assigns, share and share alike. 
 
 M. died inleslate, his mother was appoiulid 
 adiiiinisliatrix of hiseslate, and application was 
 made III the Court of I'roliate by the asNigneesof 
 certain ot his juil;;iueiit cieditors (his |iersonal 
 est lie being sworn to be insnlUciciit for the pay- 
 ment of his debts), for lieeiisi.' under sections 13 
 and 17 <if the I'mbale Act (llev. Stats., •Jnd 
 series, e. 13(1), to sell his interest in the real 
 estate of the testator. 
 
 //'A/, 1st, /"(• ^■oung, C. ,1., Dodd and Des- 
 liarres, .1.1,, ( Wilkins, .1., i/,'sM,'iih'/i'j), thai the 
 wife of the Icsiator took an estate for life only, 
 with ,'i eojitingenl remainder in fee to his sons. 
 
 I'l r Wilkiiis, .1.— 'I'hat the wife took an estate 
 ill fee. y 
 
 •Jnd. /'(*• N'liung, (', .!,, and Dodd, .1.. I li.it 
 the granting of a license for the sale of real 
 estate under Hevised Statutes ("Jml series), 
 chap. 130, sees. I.'iaud 17, is discretionary with 
 the Court of Probate, and that that diseretion 
 was rightly exercised in the ))i't;sent instance by 
 the refusal of such license. 
 
 /•/(' DcslSiirres and Wilkiiis, .J.J., that the 
 Court of Probate had no power whatever to 
 grant such license. 
 
 Ill re Exiati of Mi chad O'SuHinin, 
 
 1 Old., .-)(!». 
 
 n. Constnictlon of- .Hcanins of the 
 
 words "Protestant Orthodox Minister" —M., 
 by will made in ISl!), devi.sed certain lands in 
 trust "for the benelit of a Protestant Orthodox 
 Minister, duly authorized, as also for the build- 
 ing thereon of a house for the public worslii)! of 
 Almighty ( iod, a parsonage house, a sclioolhouse, 
 iuid burying ground for the use of the inhalii- 
 tants of the western part of the township of 
 Cornwallis, whenever there may be a suilieient 
 number united in the jiroinotion of the public 
 worship of (iod in that i[Uaiter. There was not 
 I in l^^W), nor up to the time of M.'s death, any 
 Presbyterian Church or Protestant Church of 
 1 any kind in West Cornwallis, but the members 
 j of the Presbyterian Church residing there coin- 
 i muned with the Presbyterian Church in I'^ast 
 I Cornwallis, and P., the minister of the latter 
 ' Church, occasionally officiated in West Corn- 
 
1025 
 
 WILL 
 
 i(>2n 
 
 W.illi.H, M. (linl ill |S-'t. and t'idiil llir yciir 
 |H(I0 1(1 tliu tilili' of liix ili'iitli was uii I'llilcf 111 
 tlui CliiiiL'li iif I'',, who \\HH II Mitii.sicr of the 
 Chui'fli of Scotliiiicl. 'I'lu.i |iliiiiitill', who was a 
 inillisti'i' of the III fdlliicil I'risliytrriaii ( hiiroh, j 
 aiiil tlic liisl I'lTsl.yli'iiaii miiii.slcr that was svl- I 
 tliil ami hail a coiij^fcgatioii in WcmI ('iiiMNvallix, 
 liailiiril till' hciiclil of the ilcvisr. 'I'lii' tl llstci'S of 
 M. hail ih'clai'i'il till' la III I 111 111' liclil fur tliti use of 
 the Ftfu Chiil'i'h of Si'otlaiiil, imw lia\ iiij^ ii rt'H 
 lU'iit iiiiiiistt'i' ill West ( 'oi'iiwiillis, ami I'laitiiiiij,' 
 the land as i'i;{litfully licloii^jiii^ to tlicni. It iip- 
 pcaii'd that, aocordiin,' to the |iiiiui|ili's of tliu 
 Jicfni'iiU'd I'l'i'sliyti'iiaii Cliiiii'li, a iiii'iiilici' of 
 that ('liiiii.'h I'oidil not (oiisisiciitly hold a I'ivil 
 ollii'c iiinlci' |;ov('i nnii'iit, or lie a ma;,'istratt', 
 No siiuh |)iiiii'i]ih's wi'i'o lii'ld I'ithi'i' liy Ihf Ms- 
 tahlished Chiiri'li of Sroiland or tlii' Free 
 Chiiivh of Scotland, and M. had liccn for many 
 years prt'vioiis to, and at thi' liiiit! of his decease, 
 a magistrate and a iiiaior in the militia. It fur- 
 ther appuared that |ilainliir would not eomnuinu 
 with the nioinhers of the Church of Scotland. 
 
 //• 'i/, tliat in order to ascertain tlit! inteiitioii 
 of M., the Court « as lioiind to consider all the 
 circumstances surrounilin;i! him at the time the 
 will was inaile, and that in view of thesis cir- 
 cumstances, and of othei' clauses in the will, the 
 plaintitr was not enlillcd t'l the lieiiehl of the 
 devise. 
 
 Siiiiiiih rri/li V. Murldii < I iti., 1 Old., .Vt. 
 
 IS. Constriii'tioii or — Moaniii;; of word 
 
 "heirs" -A testat'ir liei|Ueathed u certain sum 
 of money to his wife, which ho stated he sup- 
 jioscd to lie one-third of the worth of his |)io- 
 perty, after the payine!it of his ilelits and 
 necessary expenses. Hy suliseijiient clauses he 
 devix'd a lot of land to one of his children, and 
 liei|Ucathed specilic sums to others of his chil- 
 dren and to his hrother, these sums amountinj,' 
 in the whole, tocether with the: valiu' of the 
 lots of laud, to the remainiiij.; two-thirds of 
 his estimated valiuj of his property. In a 
 further clause he said: "If, after payinj; my 
 del its and necci'ssary expenses, there should 
 lie a greater sum than I have counted on or 
 conveyed, my wife, with each mid every of 
 the heirs, shall participate in or receive of said 
 sum in the same ])ro]iortiiin as I have already 
 allotted to them ; and if there should not he a 
 Kulticient sum to pay the sums conveyed or al- 
 hittcd to e.'ich heir, each and every heir shall 
 su.staiii a loss in proportion to the sum already 
 allotted to them." The estate yieldeil a niueh \ 
 less simi than was estimated liy testator. 
 
 Ill hi, that the widow was not included in the . 
 word " heirs," and that, therefore, her legacy i 
 should not aliate ; that the testator's brother I 
 
 was so iu'luded ; ami, that afli-r the payment 
 
 in full of theMpeeltie le^ai'y to the widow, all 
 
 the other li'jracieM shonld aliate proport innately. 
 
 Ill n E^luli o/ H'uuilii-iiitli, I Old,, Ull. 
 
 10. CoiiMt ruction or TciiiiiiIm In common 
 
 or joint tenants Costs ■reslalor liy his last 
 will directed that, until the expiration of four 
 years from his deeeane, his exei'iitors shoiihl 
 every year place to the credit of each of his 
 children .><lliiM», and if any of his childieli slionld 
 have died, hiiviii;,' issue, then a like sum "to 
 and uinom,' " the issue of the child so dyiiij,'. He 
 then [irovided sulistantially as follows ; —As re- 
 ;,'ards the division, appropriation and ultimate 
 ilisposition of my estate, it is my will that, suli- 
 ject to lej,'acies, expenses, etc., all the rest, 
 residue and ri'inainder of my estate, and the 
 interest, increase and uecnniulation thereof " ho 
 distriliuted, settled, paid, and disposed of toand 
 anionj.' my children who may he alive at the 
 time of the iliv isidii and appropriation into shares 
 of my estate heicinafler directed, and the issue 
 then liviiij; of such of my children as may ho 
 then dead " in manner followinj.,', that is, that on 
 the expiration of four years from my death, the 
 executors, after ])roviiling for legacies, expenses, 
 etc., "shall ili\iilc all my remaining estate into 
 as many just and ci|ual shares as the numlier of 
 my then sur\iviii^ children and of my children 
 who shall hefnre them have died having lawful 
 Issue them then surviving, shall atnoiinl to and 
 shall apportion and set oil' one such share to each 
 of my said then surviving children, and one 
 such share to the lawful issue to each of my 
 then deceased children whose lawful issMe shall 
 he then surviv iug, all the issue of cich deceased 
 child standing in the ph.ce of such deceased 
 child." And a separate account shall lie ke)it 
 of each share apportioneil to such (.hild or chil- 
 dren, or wherein such issue shall lie interested, 
 "it lieing my intention that, after such division 
 shall take place, the inainteiuince, education and 
 su[)p(irt of each of my children, while under the 
 age of twenty-one years, shall lie drawn from the 
 sejiarcUe iucouu' of such child, and the main- 
 tenance ami education of the children of any 
 of my children who may have liefore then 
 died, leaving issue, shall lie drawn from the 
 share or shares set a])art for the issue of such de- 
 ceased child or children ; and that my children, 
 and such issue of deceased children heing of age, 
 that is to say, of the age of twenty-one years, or 
 when respectively they shall attain the age of 
 twenty-one years, shall he severally entitled to 
 receive for their own use the whole of the inter- 
 ests and profits of the share and proportion of 
 my estate to which they may be respectively 
 
an27 
 
 WILL 
 
 1028 
 
 Fiititli'il." Ami us t't^H|itK-tM lliu hIiiu'cx of my 
 
 tliiii^litcrN, I ilirt'ot tliiit tlio hIiiu'i' of vmU 
 
 ilitii^'litcr lio iiivf.Mti'cl, iiiicl till' iiiti'i'i'Nt |iiiiil lo 
 
 Iii'r HI) loii^ iiM slu! NJiall livo, " lUll tliiit, on llic 
 
 Uuath of my (luiit^litcrN, tlio iihurt', uliiiiii, or 
 
 ilitt'i'CHt of Hlli'll of tllt'lii IIM HJiall liavi- lici'ii 
 
 iiiairiiMl and Nliall Icavti rhililicii lu'i' surviv iii^, 
 
 ttiiall lie a|i)Mirtiiim'il ami ilisliilmteil aM folloUH, 
 
 lianii'ly : ten tlioiiwiml ilollaix, part of tlii'i^liarc 
 
 of Hiirli ilaii^'litcr ill Hiu'li iiiaiiiK'r ax hIu^ NJiall, liy 
 
 any iiisiruini'iit in \vi itiii); in her liami Hiilii^i'iilK'il 
 
 in till! pit'Hi'iii'c of one oi' nioi'o witni'swi's, ilirci't 
 
 ami Mp|ioint, ami tlio liulanco of mucIi Himru nliall 
 
 lie |iaic|, apportioiu'il ami iliHlriliiitcil to ami 
 
 among tlii; cliililrcn aliil giamU'liililri'ii in niuIi 
 
 proportions as hIiu shall, liy any instriiiiu'iit in 
 
 writing; iimk'r licr liami, siiJisi'riluMl in tin- pri's- 
 
 t'lii'i'of ojuMii niort! wilnciiscs, ilirci'i ami iippoint ; 
 
 and in ilcfaiilt of any hiu'Ii appoinlimiil , to ainl 
 
 among lu'r cliiiiln'n ami graiulciiiiilren in cijuul 
 
 Hliart's, (III! saiil gramlcliililri'ii stamling in tliu 
 
 place and lu'ingt'utitli'il to tlit; slaruor Nliarcs of 
 
 tlii'ir decfasi'd paients or pari'iil rL'spcutivcly," 
 
 One (if tiiu daughters having died within two 
 
 years after the death of the testator without 
 
 making any will or exercising her power of 
 
 ap))ointinent, and having left three sons under 
 
 age her surviving, one of whom died under age 
 
 seven yeais after testator's death. 
 
 Hi III, Weatherlie, J., linxi iilliiii, that tin: sons 
 
 took as joint tenants and not as tenants in eom- 
 
 inon, and that the interest of the deceased son of I 
 
 testator's danghter went lo his surviving lirolher. 
 
 Fhher v. Amlrrsoitif a/., 1 R. ifc (i., 177. 
 
 On appml to the. Suprime Court o/Canatlu, 
 Hi/il, reversing the juilginent of the Sujirenie 
 Cou.'t of Nova Scotia, that the intention of the 
 testa "lor was that his estate should lie divided, 
 and .hat the children of testator's daugliter 
 took as tenants in conimoii, and conseiiueiitly on 
 the death of the oldest son, the whole right, 
 title and interest in his sliare, vested in the 
 lilaintit)'. 
 
 Fishir V. Aiiihrxoii, 4 S. V. R., 4(MJ. 
 
 20. Costs In probate proceedings— 
 
 *Vc PROBATE COURT. 
 
 21. Cr pres-A testator bequeathed £2,500 
 
 to lie invested in stocks, Ike, the interest on 
 i.'100O to be paid to certain clergymen to provide 
 fuel for the poor of tlieir Hocks during the 
 winter ; the interest on il7\()0 to be paid to the 
 National School, and a like sum to the Acadian 
 School on condition of their each teaching at 
 least 12 (twelve) poor children ; and the interest 
 on £500 to be paid to the Institution for the 
 
 Deaf ami |)iiinlilo assist in educating the poor 
 who miglit. be thiiit alltii'ted. The Acadian and 
 Vatiniial Schools were afterwards slipirNedeil by 
 the Klee Schools estalilished under the Act and 
 HUpporled by taxation. The niaster to whom il 
 was referrecl to report a scheme to carry out 
 testator's intention reported that the muiii be- 
 iiueallied to the schools so superseded shouM be 
 paid to the School < 'omiiilssioiiers towards the 
 ert^ction of a High School in Halifax, uiuler the 
 Act of l!S77, cap. ;«». 
 
 //'/'/, that us thr /iiiiir \\■^■]■t> the objects of 
 testator's bounty, his intentions would not bo 
 carried out by the Hcheine proposed, which Wduld 
 simply relieve the citizens generally of taxation, 
 but tliat the )ici|Uest in (|liestion should be divi- 
 ded betwecr. the Ins'ilutjon for tiie |)eat and 
 Dumb, and the Asylum for the Klind (an 
 analogous inslitutiiin, but one not in operation 
 when testator made his will), to assist in edu- 
 cating the poor inmates of those institutions. 
 The Aliiini' ij til mrnl v. liullock tt (tl., 
 
 R. K. 1)., 'J49. 
 
 22. (') pres Doctrine of Matthew Walsh, 
 
 liy his will, directed that his real estate, after 
 the death of his widow, siiouhl bo sold, and the 
 proiH'cds placed at interest, to remain and be a 
 per|ictual fund, and that when the principal 
 and interest, tiigetlier with other donations 
 wliich might lia)ipeii, should amount to i;i,(MM», 
 the annual interest of said XI, INM) should be 
 applii'd "for tiie ])ur]iose of aiding the inhabi- 
 tants of till! Township of (iiiysboio', to maintain 
 a free (Grammar and Knglish School in said 
 Township, or estalilish the same into an Acad- 
 emy, at tiie dis(.'retion of his trustees, for the 
 benefit of said Tow nshi]i " The testator died in 
 iM'i'i, his widow surviving him, after whoso 
 death the property was sold by tho trustees, 
 and an information was tiled at the instance of 
 the trustees of .School .Section No. I (which em- 
 braced the whole 'I'own of (iuysboro', but con- 
 stituted only one .if nineteen school sections 
 included in the Township;, to obtain a decree 
 recjuiring the defendants to pay the jiroeeeds of 
 the real estate to the relators, to aid in the sup- 
 port of the County Academy and free (Grammar 
 and English .School est-alilished in tho Town of 
 (iuysboro' under the free school law. Tho Court 
 directed that the fund should be held till it 
 accumulated to the amount specified, and that 
 the interest arising from it should then bo ap- 
 plied to the suj)port of the County Academy, 
 assuming that it should continue, as it then was, 
 free to all the inhabitants of the Township. 
 
 (iiieeii V. Cutler et al., R. E. D., 159. 
 
 See, aho, SCHOOL LAW, 3. 
 
J 029 
 
 WILL 
 
 1630 
 
 'iS. DrvlMe of lands Fee nlmplc pn»iies If 
 
 charge iiiip(iHt'il upon the tluviMeti A muir ilo 
 
 VJHl) of IiUIiIn, |irt'viiMlH t(l till! t'llllt'tlllUIlt of HI'O, 
 
 '2H, 0. HI, 4th K. S., wax iiiMiitlioiuiil to piviiH a 
 ft^o Nhiiplc, Itiit if ilic irMtiitiir ill milking tlit' ilu- 
 viHt! lU thi! Haiiiii time impnscd ii cIiiii'mi! upon 
 the (UiviNi'u, tht'ii till' fi'i' \v<iiilil paNt'. 
 
 •I. ('., )iy his will, iliicctoil that tliu lot of 
 hiiiil upon which iiu ruxiiUMJ fhoiihl lui i!i|ually 
 (liviihril liftwui'ii liiH two HoiiH, u» lliey niiijht 
 think light or I'vpcilicnt. 
 
 /{fill, tiiat lilt! (htvi.so of itself <li'l not givo 
 them the fee simple. 
 
 lint the ti'Miator lUrecteil in another elaiiHu 
 of till! will thill hix Hon Ateiiihalil hIioiiIcI axHittt 
 liiM other Hon, KiMleruk, in Imililiiu' i hoimv, thu 
 iiHHiHtatic'i! heiiig Hpueitled as a iiiiliility for oiiu- 
 half the expense, 
 
 IIi/i/, that the impoHition .ii ' iiiis charge, 
 whii'li was a personal one upon tiiu ilcviscu, 
 Arehilialcl, and not upon the lands, enlarged his 
 estate to a fee simpli'. 
 
 Chi-'liohn V. M,tr/}„iiiii//, | \. S. I)., l;{7. 
 
 24. Forged will I'roor In sitlemn form - 
 
 Evidence - l)eeree nui aside - I'rohate was 
 granted of the will of (i, to his widow, who 
 was a])poiiited sole cxeeiitrix and legatee, and 
 who pi'oeeeded to collect and take possession of 
 the estate. More than a year afteiwards, one 
 Meli. proilu'X'd another paper, which he alleged 
 to lie the last will of the deceased, ami a cita- 
 tion was issued to show cause why proliate 
 thereof should not he granted. 
 
 Tlie ixccutois were cited hy the widow to 
 prove the . lleged will in sideiim form, and after 
 hearing evidence the thidge of I'rohate made a 
 decree setting . side the first will and declaring 
 the will produced hy McL. to he genuine. The 
 ovidence showed eoi.clusively that the will pro- 
 duced hy McL. was a forgery. 
 
 //(■/(/, on apjwal, that the decree of the Judge 
 of I'rohate should he set aside, and the appeal 
 sustained, with costs. 
 
 /.'<; I'Jifale Gainmelt, 7 R. & G., 205. 
 
 2o. Letters of Probiite — Executor not 
 
 liable for moneys paid, though will afterwards 
 set aside— Notice of intention to attack will — 
 Defendant was appointed executor under a will 
 which, after he had ohtaincd probate, and had 
 collected debts, paid legacies, iVc, was set aside 
 for want of due execution. 
 
 //eld, that the granting of probate was ii suf- 
 ficient defence to an action brought l;y the ad- 
 ministrator to recover the moneys paid. 
 
 Alw, that plaintiffs' case was not strength- 
 ened by the fact that defendant before paying 
 
 the legaeii'H had notice that the will would he 
 attaekcil upon another ground than thi^t upon 
 which it was set aside. 
 
 liamlall <i «/. v. 7>/a;), « U. A (!., l()fl ; 
 (K*. F.. r., lU. 
 
 20. Mental capnrlt)' Tndue Influence- 
 
 I The evidence Upon which it was sought to net 
 aside a will showeil only marked eccentrieitieii 
 
 j of liehaviour, and the will, although niaile in 
 favor of the Holieitor of the testatrix, was xliown 
 not to have iieen piepart'd by him and to have 
 been inacit! without any jiressuie from him, and 
 as till' free act of the testatrix. 
 
 l[ild, that the ilecision of the Judge of I'ro- 
 hate Hustaiiiing the will must )>e alHrined. 
 
 /» >v KHhih' of wiiki', .'• \{. A (J., :ax 
 
 2t. MLsrcndlne will to testutor- Setting 
 
 aside — Testator w.is a man of religious habits, 
 and a inemlie! of the Methodist (.'hurch. A 
 fortnight before his death he had matured the 
 
 ' .sketch of a will, sul)slantially similar to the one 
 executed, MJiich left considerable pioj)erty ti) 
 the Churcli. On the afternoon of the Monday 
 liefore his death he sent for Henshaw, one of tlie 
 executors, who came in the evening and took in- 
 
 1 structions from the testator for di awing the will, 
 which was prepared next morning. When these 
 
 ' instructions were taken there were four persons 
 pi esent, besides the testator and Henshaw, three 
 of wlioni were interested in sustaining the will, 
 
 , but neither of those was produceil as a witness, 
 nor were the instructions produced, although 
 
 I tlie Court had adjourned for the purpose of en- 
 
 \ abling them to be obtained ; and T'oop, who 
 was present and adversely interested, had been 
 sent out of the room, without it being shown 
 that it was by testator's rcjuest. The witnesses 
 present at the execution, which took place on 
 
 ! the Wednesday before testator's death, iliffered 
 greatly in their statements as to wliat then took 
 place, but it was admitted that one clause of the 
 will had beea intentionally read to testator dif- 
 ferently from the way in which it appeared in 
 the will, and that testator made no remark. 
 llis name was added to tlie will by one of the 
 executfu's w ithoiit his consent having been asked 
 
 ; or his authority given, and he died the next day. 
 
 I Hdd, that the decision of the Judge of Pro- 
 bate setting aside the will must be sustained 
 costs to be paiil out of the estate. 
 
 j In re EMaU of Pine, 3 R. i% C, 307. 
 
 28. Practice in Probate Court- 
 
 Se>'. PROBATE COUBT. 
 
vm WILL. i(;:{2 
 
 20. Probate -Appeal Trom JlKlKineilt fully mihI wIlli IkinIIIc iiiliul Ixin an iiistriliin'iil 
 
 lulinittiiit,' to I'roliati) UikIiic inilinaici; \>y in prciiiiiin^; hi.-i idiiliMciiniil , 
 H|iiritil;il iidviHi.T ,hu\\^m(n\i lit-low HiiHtaiiiiMl //(A/, mi ipiMjil fioiii tin' I'lolmlc ('rniil, tli.il, 
 
 — 'I'cHtiildi' WiiH ii ijian (if MiiMnrly liiiliitH « iio liail the iiruliali' (if llii! will liad liccii |ii(i|iirly 
 
 ffir liiaiiy ycaiM lived iildiii', ali'l had iiciMiiiiiliiiliid icvokcd, and llial I lie on us reeled (iii iIiomi! mi])- 
 
 ciiiihidiiahlc |)i(i|Mily. 'Two ycaiH Iji-lnic liis |)iiit in;.' t lie w ill Id hliow I lial tlii' Icstiildr wlicn 
 
 death hi! WiiH viMited liy a nieic, his next, of kin he nia(l(^ it had a ('a|iaeily lo i'dnj|ii'i'lieiiil tin: 
 
 und Moai'OKL living iclali\c in llie same de;,'ree, iialnre df Ills wife's ciaiin, and to deiiliei'aleiy 
 
 who was infiirnieil hy him I lial , (in liis deal li, ail fdnii an inl' lii;.'enl piii jidse (if exrliiding liei'. 
 Ins |(i(i|(eily wdiild gd tii her and her nidtJKM'. In n Afii.nri // h's/ti/i , I I!, ,V, ( '., 'J'_'!l. 
 
 licl'iiri! r'etiirniii;^ lioliK! the niece dhtained a 
 |ii'iiiiii.se frdni ihi: priest, who was her iinile'.s 
 
 Hpiiiliial adviser, that in tlic<.venl df her lUKle'.i •{>• l'r«<»f Of H III i!.y <TP(inc«l fOPi' <'«»• 
 
 illness he wonld write K. Iier and infdiin her df "tnieiive piuHeliee of testator A will is siilli- 
 
 llie fact, Sd that sh. -1111-111 letiirii. Tlie leslaldr, '•'•'""ly pidvd l.y the Jilddliel idli of a cerlitied 
 
 hasiiii,' lieeii .seized wilh an illne.ss wliicli was '"I'.V win re lli<^ iioliee rei|iiire(| l,y llevihud 
 
 likely Id pidve fatal, was advised hy the Jiriehl •^Lil iiles, chap, l;;,"), sec. :i(J, has lieeii ^ivcn. 
 Id make a will as a means of l.eing " helter pre " '"" ■i''*" siiHieieiiliy allesled where! the testa- 
 
 pared Id attend Id his spiritual allails." II. tdr could see I lie « il iwsses Hi;.'ll, had in,' (dldseli to 
 
 was iil.sd advised Ihat he Wdllld lie pirlfeelly li^rlil '1"^". I li"ll^'ll IIkic was lid piddf ihat he acllially 
 
 in dispdsing df his pruperty in any uay he 'li'l see I liem sIl'Ii, and they were in an adjoining 
 
 wished, iKil. ediilraiy to the riioral law. A will <"'"" •'• "'i'' 'i'"'- ''"''•'' I'"' <''ii«l<^li''o of the 
 
 was drawn iipliy a Sdlicitor, who was sent fur testator's signaliiic l.. the will, at the time of 
 
 for the iHirpiise, leaving thc! w lidli! (if lestaldi's 'I"' ackiKiwledgenient hy him Id the witnesses 
 
 property for idligi.iiis and (!liarit,alil<! purposes, ''I'^t it i« his will, may he inferred finm cireiim- 
 
 with the J!Xi!eptidn df two small heipiesls, inelud- Hliinees. 
 
 i'^--i, . .1 M'l . < ''iri-iiinii v. C'(r/''i/'(//, 'J Old., S. 
 
 ing one ot .'s.iO to tint niece, I In: niece was not • .; . > 
 
 sent fdr in aecdrdaiice with the jiroiiii.-e made to 
 
 her.and .she had no iiifoiiiiatidii df thee.xistenec jj^. |'|MtOf Of TWO Of lllO SHl»S<TlblllK 
 
 of a will iiiilil after her uncle's dcalli. witnesses to a will m ai ly thirl> years did, and 
 
 ■riiere lieing evidence as tii t h.- .liiit cxcciit ion supposed t,i li.a.vc lieeii h'sl , , hi not remeinher 
 
 df the will and the eapaitily df the testator, and ,|,,^, ,|„.y i,,^,| \viliies.scd its e.x.-eiilioii, liiiL oiii! 
 
 lid evi(lelie.;<ith(!r thanlhalas stated of iiiidiK! ,,f I hem said that Ik! Iidieved li.t signed It, and 
 
 iiilhicncc, pressiiiedr indileemelit, Iml h adiinl ted th.tt it ini-ht have liceii sign. mI hy 
 
 //(/(/, Ihat th.! appeal ffdiii llied.Misidli (if the (i,,.,,, ,^,|,i , |„. „(|„.,. suhscril.illg witll'^ss with- 
 
 ('(.'in df I'ldlLite adiiiltin- the will !d I'ldliatc ,„„ ,|,^.j,. ,.,,c„|lcctiiig it. 'I'h.. will its.^lf was 
 
 must I,,, disiniss.-d with eosls. ' fiiimd n.-ar the chise .if Ih.' trial, after t.li,-^,! 
 
 Weatherlic. J., (//~x. /(//»;/. wit iies.-..'S had lieeii examined, an, I it )iiiiporl(Ml 
 
 /,'. /•;</'(" './ /)>,o/,i/, i; H. (V (;.. -lo: ; ,„ |„, ^\^n,,,\ |,y il.cse wilii.'S>es and anolher. 
 
 '' ' • '■■ '■' ''•*'-• .\ii(illier witness at tlie trial, liuL iKit a siih- 
 
 scriliing witness lo lli.' will, swor.! that, it was 
 
 .,,, 1. 1 ^ <■ III ■> .1 «. .!\.'Cilti-(l hy the tcslalur, she liclicv.-d, in the 
 
 MK l'roha(<; «l will Kevoralion ot , , , , , 
 
 , II' ,• i i. X > II. l>r.!seni;e of ilie tlirite siiiisci il.iiig w il iiesses, aii.l 
 
 Jnsany delii.siou ol t.istator- A ter-tal.ir lia.l at ' " 
 
 ,.,..,,, that she hail seen iIk'Hi sign their names to It as 
 va.ioiis limes pre\ lulls to making his will been " 
 
 in-, me, and lia.l licim plaei!.! iiii.ler restraint as a 
 
 , . ., r 1 ■ I . //'/'/, (til.! Court, having all thi! pow(!rs of a 
 
 liinali.;, the propriety ot which was not .piiis- ,. , 
 
 I ,,. .r 11.1 11 III iuiy under special ver.li.;t), that the will was 
 
 tldiied. Ills wile, who liy the will was excluded ' ■ ' 
 
 ,, .■ ■ .• 1- ■ .II- siiliicii!iitly proved, 
 
 troiii p.irticipatioii, was living separate trom linn ' ' ,. , , ., . 
 
 ..,,., , 1,11 1 ■ Mr hiiimhl il (il. v. Mi-Kiiiii(iH < I III., 1 OhL.ri'JT. 
 
 when tlie will w,is made, ami had l.e.c'ii .so li\iiig 
 
 for many years. It did not clearly appear that 
 
 she had he.-ii an agent in pidciiiing his (diifi ;{;{. TroOl' Ol'nill III Sdlomil fomi - tOStS - 
 
 m(!iil, liiit tesiatdr atlriliiile.l it I.I li''raii.i all.-ge.l ITp.in |ii.idfdf t(!slatdr's will in sol.iinii fdiiii the 
 
 it iUiidiig dtlier groiiii'ls fur his ave'rsidii tn her. .iiidge df I'loliate ihiereed that it lia.l lieeii .Inly 
 
 Apart from any .piestiin as toiui in.saiie.leliisioii executed, and lu; made the costs payalde out of 
 
 regarding tiie wife, tiie testator had stiflicient the estate. On app(!iil, the Court A./'/, that the 
 
 eapaeily to make a will, lint as his Montiinenls will had lieeii siiown to l^avu heeii duly e.Kecuted, 
 
 towards his wif.! had lic.'ii col.ir(!.l in part, at aii.i that the .lue executi.jii lia.l heeli provo.l of 
 
 loast, hy a deluding helief, that she had wrong- i a codicil which (Hjurated hh a republication of 
 
l(i:n 
 
 WILL. 
 
 IG.Sl. 
 
 till' will. 'I'lic uppcal wits llnTifiJii' iJi.siiiiHMCil, tlir iiiiikiiij.' of the will ill ilispiiti , iiiiil lifter- 
 lull willioiil, cdmIm, witicls, III tin; liiMir of his lIlMth, tli.Stjfjfll 
 
 \V I'.itlliillii:, .1., i/io/;///;/!/ ax to till' i|iic,stiiili of stioiij^lj' to IiIm liHiiliil .soiiinliifM.s hihI vigor. 
 I'lisi-i, i;oiiMiiii'ri:il tliiit till! ii|)|iciil .slioiilil lio ilis- 'ri!Ht.iilor liiiil hiiii on ii'iiiis of gieiit, iiitiiiiiiry 
 liii-.<iMl with iMistM. with Kiiiilliarli uliili' iil, l,iiiiiiiliiii>', wlnri! Iio 
 
 /;/ ;v: h\/(i,/i- o/ J!nilt( , .'( jl, ,t {'., 't'ti). Ii\iil from IST'J to tin; liiiie of iiis ilial.li, i pi'Mil- 
 
 iii;,' till' ^ri'.ili'r purl of liisliiin' iil KinilljarirM, 
 aftir wliirli Kaiilliarli mill liis family liviil « il li 
 
 •M. Ki-sl(lii«> La|>s(>d lMM|iM-sts l-crscmal ,..,„^„„. ,<,,„„„,„,, ,,.,,, ,,i. or.iisioiial l-ank-r 
 
 prnpiTly ,l..v,M.„l to ..M.Milor.s lor a purpoM- ,„„| ,„|i,i„„.^ ,,,,„ ,, ,.vi,l,.,ir,. was t..|i,l.r..il 
 
 Mliii'li fails must In- ilistiilnitfil liy tlie itxcciiiors . . i . i i- i .1 
 
 •' to show thai lie liaii iiiimoilfialiUy siitipl|i-il I hi! 
 
 aiMoiiL' till! iii!Vl oi kin. ... .1 I- .I'l 1 1-. f.i 11 
 
 " ti'slator witli lioiior. I 111! iliatl ot till- will was 
 
 Siir:li (listrilmtioii is « illiiii llic jiii isiliil ion of i- o , . ■.■ 1 . 1 i- . 
 
 ■' III Kaiilliaili s writ iiif.', Iiiit was sworn liy liiiii to 
 
 till' I'loliato ( 'oiirt. , • 1 . , , , ' 
 
 liavc l)i:rii coplcil rvaclly, at Irsla'ors riMiiii'st, 
 
 h's/ll/ro/A. .l/'7>r,»,(/-/, James, IS.i. ,■ ,. I i . , , \ 
 
 ' ' Irom a will piepareil liy leslalor in .\ii>,'ii-t, 
 
 uilli all era! ions siij.'};e:,teil liy I lie leslalor, and 
 
 ;{.!. U«vociitl«iMtrf(>riiurlii laUr Suit "pi'i ^ ''"iin. 
 
 for iiiirtitiim Where later will revoke earlier ''''"' "'" 'i''^^'"-' '"'•" 'ti LmI^i'I '"> the |.'roiiii.ls 
 
 will -I'laiiiliir, elaimin- a partition, set up a "f >""V< '/' //(m/'/i, a,„i ,ni.liie iiitluinee, 
 SlieiitlV ileeil of the in-eivst of .1. I.elilaiie, //' /'/, HUStainill- the ilecisioil of I lie .1 m 1;;,! of 
 
 ulii.'l, she .claimed as heir to her mol her. I)e- I'l'-l'^H''. 'I'itl "'<• will must I.e eonhrine.l. 
 rei.ilant proved a will made l.y tin iiiolher's The ( 'oiirt was eipially divide,! upon I he ipies- 
 
 luieeslor, ih'visiiiK the land in ipiesti >ii in siieh ' '"" "* '""'''• '^''''i''^'- ' '• •'■• '""I I >i-^l!'" I'S •'.. 
 
 a way iLs to disinherit her. I'laiiil i f set up, as '•"hM'li'iiu^' that laeli parly should pay his own 
 
 a revoealioii of the will, a later uil', hut it was ''"^"« ' ■'"''"'"' ''""' •'■^'K'S •'•'- 'l'''' ''"'.V should 
 
 nol shown that the later will devi cd any part '"' I"''' '"" "^ l'"' '■-'■^''■- N'""!'!''!' W'l^ luiide 
 
 of ih.: laiiil claimed in the parlilion sail, and it "'' '" '■"^'''• 
 eonlaiiied no elaiise of re\()i!al ion. 
 
 Ililil, thai there was no i evoe.al ion shown, i 
 
 and tli(!verdiet niiisl he entered for defendant ,, , , , ,, •,, , 
 
 . , 1 1- , , (Id iiiiiii III Id till Siijiri nil ( imrl III (niiiiiln, 
 
 under a rule enahliiig the ( ourt to enter ver- 
 
 diet for either parly. //'/'/, dm a motion to i(Uash the appeal, that 
 
 Mc/.'at v. Cornilirilnl., .". II. .*^ C, ;i7;{. ''" ''I'l"'^' will not lie to l lie .Supreme ( 'ourt of 
 
 ('.iiiaihi, in e.ises in wliieh the ('ourt of orij^inal 
 
 jiii isdielion is not a Superior Court, and that 
 
 m. Senile tU'lllClllia Evidence «r t'(»S(s \u,. c,,,,!! .,f Wills and IV hate for the County 
 
 - Testator made four wills, all ill the year is:.-,, ,,f |,||||,.|||,Mr,L,', Xova Seotia, i.s not a Superior 
 
 l.y ihe lirst of whieh, madi! ;\|.ril (llh, while Comt uiihiii ihe ineaningof the ITtli seetion of 
 
 reshling lit llalifa.v at Ihehoiis,. of his eoiisiii, " The Supreme and Kxelie(|Uer Court .A.-l ." 
 
 Ill II lliiiiiii^h M iiiiliiih's ll'i/l, 
 
 .•{ l;. .V C., IL'7 
 
 liiiiiiii^li V. Kniilhiul:, .■{ S. C. 1;., 701. 
 
 CliarleH iieaniish, he left nearly lialf of Ins proj)- 
 Cfty to .said Meainish, and I he other half in trust 
 for Mrs. If. \. \. Kaiilh.ieh, in whose favor the 
 
 fourili will, heiii.n the one ill i|uesiioii, was made jjj. SlielN'y's easc, mle In -A testator 
 
 to the exeliision of Ijeamisii, on I he l.'illi .No- devised land to .\1. Iv I'., ;.;i\ in;.' her in terms ,ui 
 vemher, and while the testator was lesidini.,' at estate for life, Ihe property to ^o at her di!atli 
 the house owned and oeeiipied hy him in l.uiieii- to her ehildriMi then horn, w hom he desi;.'naled 
 hiirg. The suhserihiiig wilnessi's to the will hy ii.ime, and to siieli other ehililreii as she 
 hot li testideil clearly to the testator's soundness I might liavi!, iiiid their lawful el.ildreii, and to 
 and eapaeity. Two re'speetahle witnesses he- | their heirs lawfully hegotteii. In the next elaiise, 
 nide.s I'lcainish, speaking as to .S(!ptemher and hi! dee.lared that it was his will that the property 
 the latter end of Oetoher, 1S7."), deserihed the should In: entailed upon the iliieet deseeiidaiits 
 tCMtator lis heing ehihlish and imheeile, eoiieiir- of his four eliihlreii and their oH'Hpring forever. 
 ring in this o|iinioii with the testator's nurse In the eodieil to his w ill he referreil to the estate 
 and h(!r daiight(;r, the evideiieu of the former of he had given hy his will as an estati! for life to 
 whom was not eonsideied worthy of attention his (!hild''eii (one of whom was M. K. II,), and 
 for various reasons. On the other hand, a ; stated that he had entailed the pi'o[H!i'ty on their 
 miinher of intelligent witnesses, seven or eight, ' ehildren. 
 
 iiieludiiig testiitor'H elergynian and phymeiaii, lltlil, that the words deliniiig the jiersonH to 
 who had visited him down to the time of take on the expiration of the life estate were in- 
 
lO.'J.' 
 
 WORK AND LABOll. 
 
 IG.'M) 
 
 toiiiliid iiH II (lt:nii/na(io prrsotiarum, iiiid iiol, uh 
 worilH (if liiiiilatioii ; lliiil i.ht: luii; in ,Sli<'ll<iy'H 
 ciiHc did not, liiricforc, iijijiiy, and l.li<! dm'JMCi; 
 look only a lift; (iMlal.o. 
 
 /{(iliiiitdit it al. V. //I'lidri/, R. I'l. I)., ,'(,'()>. 
 
 its. Sliollcy'N am' When; u testator d(s 
 
 viH(!d landn to liin hou R., "for and dining; liin 
 tialiiral lifo liniit, llii^n to dHVoivi^ to lii.s ildi^xt 
 oinid lawfully Ixjgottiin in (i. Iiii<^ of Miic.ci^HHion 
 for (!V<!r," 
 
 //'/(/, llial tins iiild in S/iil/ii/'s casi! diil not 
 
 apply, and that R. look only an cstatt; for life. 
 
 MiKiiij ii III. V. Ainiaiiil, I Old., '_'47. 
 
 :t». Spcclllc deviNt' or real vstitte Sped- 
 
 lie l)(!()ii(!HtH -Real cHtate not lialil); to conlri- 
 
 buto to tho l)l!(|ll)!HtH CohIh W'iirll! Ir'Slalol' 
 
 dcviHiMJ (certain rial cMlati: HpiMMlirally, and alHo 
 iiiadi; M|)(:(;iti(: piM'uniaiy lK;(|ii(!Mts to Hi;vi!ral 
 )ii!rnonH, 
 
 JIi/il., (allirininn in ri: h's/a/r i>/ Mih'ii.i/, I Old., 
 i;il), iliat the: real (sslate mo dovi.ied c;oidd not lie 
 Hold to (iontrilmte towardH the piHuniary iie- 
 <)UeMtH, and that ea(;li party Hhoidil pay his own 
 eoHl.'*, aH ni:ither party appeared to have liroiiglit 
 Hie eaHe reported liy Oldri^lit to the notiec of 
 tlu! (Jourt lieldW. 
 
 In re S/i:/,hm J'h^r'.t Wilt, 2 R. .t ('., ;)ri8. 
 
 j 40. TruHt frcated by Liability or trux- 
 
 ' tee i'riiviHioii in a will that di^leiidant Hhoiihi 
 
 I holil land, A'e., in triiHt to <:iiltivate, ileniiHe, jet 
 
 and niana^<! the Haini; to the liimt advantage for 
 
 teMtator'H daughter, without inipeaehinent' of 
 
 waMie, 
 
 llilil, not to exonerate I lie tlilHlee from le- 
 
 HpoiiHiliility for wastiii)^ the trunt propiMly, lnit 
 
 I Hiniply to empower liini to do " Mlieh aetH as he 
 
 eould do if a tenant who wan not aeeonntalih 
 
 for wante." 
 
 Uilil, j'nrlhir, that the truHtei) under Hueh de- 
 viHe was not olilij^ed to work a mill on the IriiMt 
 pi'operty ; and I hat if the truMtee waH unalile to 
 proeini; a Huitalile tenant, lie ought not lo he 
 held annweralil(! for the unproduetiveneMM of I he 
 property. 
 
 J /i III, furl III r, that, the defendant, in selling 
 the gra.MH iineut at aueti<in, instead of making it 
 into hay and Htoring or iliHpoHing of il an ,su<:|j, 
 had pursued a eiuirse whieli he was, under the 
 cireumstaneiiM, at lilierty to adopt. 
 
 I'lriioii 1 1 III. V. Sniiitii.ii, R. K. I)., I!M). 
 
 WORK AN!) LAUUIt 
 V ' tONTKAlT. 
 
APPENDIX. 
 
 TIIK rOLLOWJNc; TASKS SIIOIJIJ) MAVK AI'I'KARKI) UN'DKll THKIK 
 
 IIKSI'KC I'lVK IIKADS. 
 
 ASSKilNMKMT. Inn lillr m djc limi', Iml tlml iifliM' oliUiJiiiii),' 
 
 lil.lc, mIii' riililji'il unci a<l<i|il(:(l llic lilli^ 
 
 or choM! ill action Action liy assiKnci; Jt'/<t, i><r Wcailn-ilii^ .1. 'I'liat iIh! hIIck'^'I 
 
 Nolici; iiii(l(!r St.iii.utf; H|)(M;i!il iiroinis); to iiH- i lim: wiih inMiilIiciriit ; (n,), liccuimi il, iliil not 
 
 M^ni'A'. ill conMidttr.-iiioii oC forhtsirjiiKK; ! ii.|t|ic:ar lliiil I lie nal Ixniiicliuy wiiH incapaliii' nf 
 
 iS'ir STATIITFiS NOVA NCOTIA lioiiif^iLHcuriuintMl ; f //^, IxicaiiHt: L. hml no inior- 
 
 •!Hl at the thiK! it wuw OMtaliliHliinl ; ( <■ ), lircaiwu 
 
 it was not allij^iMl (hat tin; iatilii:atioii look 
 
 plai.'i- on \\\i: ^I'oiinil, oi' that any partiiMilai' linu 
 
 j was rni-ntioncil ; (il), lii'caiisc; l<. Wiis illitiMato 
 
 I an<l VMLs unaware^ of I hi' ii|i(:rjli(: naliifc of tin) 
 
 ih'sri iption of h(M' iioiindary ; ( > ), l>i:i:aiiMir tho 
 
 ■ ,, , /. • 1 , , , . . , I alli^ucil a^HMMiicnt apnuaiiMl to havi; lucn a 
 
 cohIh - Jlfhiiim; of pi(l{,'nn!nt ()htain<:(l hy ' • , , . r, > 
 
 I 1. ,, ,, ,,,', ,, ,, ., ! (;oiMpionilH(! whciiiliv OIK! piiMji; (it lami Wiis ex- 
 
 Ut.'btor CrilluHioii iht!(oiirt will not Mi;la.sii|i- ' ^ ' 
 
 4 til U. H., c. 1)t, N. :(57. 
 
 ATTOKNKV. 
 Attorney and client Sollritor'N lien for 
 
 a rclirasc! ohlainiMl, pitnilinj^ snit, hy dcfcnilant 
 from plaintif)', nor i-oinpitl I In- ihfi'nil.ujl lo pay 
 |)laintiH".s attornc'y his costs, where' ihcic has 
 l>i:on no iMilliisinn. 
 
 Jiihiis/oii. V. Afiiflii.ioii, ilanii's, !CJ. 
 
 { i:lian;^cil for an (M|nivalt!nt piitm; on another 
 pait of I III' lol. 
 
 M 1,1,111 1) V. Vrliiiiisli, 7 li, iV <;., Hit; 
 7 <'. L. 'I'., r.M. 
 
 AdiriniMl on appeal lo the Supreme Coiiit of 
 
 ( 'anaila. 
 
 II S. C. I'.., 7IU; 7 <.'. I-. 'I'., •■(!«' 
 
 < AI'K KKKTOX. 
 
 Kond on appeal from Justice of llic Peace 
 
 - An attorney one of the' KuntticH An appeal 
 lieinj,' taken froiii a Ma;,'isl rate's decision, tlii! 
 (lefendant and one \\'., an attorney of the Sii- 
 jireme Coiiit, lieeame siiretie'S on the appeal' 
 
 honil. On the ground of w. i.einK a snre-y the ; . Annexation Of, to Nova Scotia by tlH) frown 
 
 lion.l waH held ir.-i'Kidar and the appeal dis- | '" ^'^^" Legality of ^^^^ ^^^^ SCOTIA. 
 
 inisHed l)y the Supreme Court, i'liiiiitilf then i 
 
 resortiiil to his original jiidKnii'iit, and the i^.xe- 
 
 ciition lieing returned miMalislied, sued ih^feml- ('OVST\lilF 
 
 ant on the liond. 
 
 //.-A/, that he .'ouid not reeover, as i,y the justiiicatlon of cottNtaiiie Under an irre. 
 
 oourse he had laken he ha.l waived all right or gular execution Notice of irregularity 
 claim against defi.'iidant under the appeal hond. 
 
 Mr.Xiu V. Mor.l,<,i,sr, :i \. S. I)., .-(I t. ''''"' K^KCl'TION, H. 
 
 Negligence or, in investiiiK money Searcli INSIKIM'E FIUF 
 
 of title — ......,-.. 
 
 s "^ REIilSTlUTION, IH ^„p,gaggc ,.„„„„t „„,, „„ „„„ey issued In 
 
 name of mortgagor The defendant eonipany 
 isHued a policy of fire insiiran(;e in the name of 
 T. on projierty of T., of wliieli the plaintiir 
 company weie mortgagees. 'I', having released 
 IiIh eipiity of redemption to plaintilfs in Hatis- 
 cation — Defendant, as part of his defence to an faction of their deht, plaintill's continued to pay 
 action of trespass, ndieil upon a conv<Hitioiial line ' the premium upon the policy, hut without 
 
 having received any assignment of 'I'.'s interest 
 in it. When the last premium hecame due it 
 
 i(j;w 
 
 BOUNDAItrKS. 
 Conventional line Real boundary Itatill- 
 
 alleged to have heen estahlished with L., a 
 foinior proprietor. It appearc'd that L., had 
 
 l(j:»7 
 
10:5!) 
 
 APPENDIX. 
 
 1G40 
 
 Wiis paid hy pliiiiitiirs :is ustiiil, mid it was 
 agreed tliat tlio eiistmnary renewal reecipt 
 slirmld lie given, lint in c(inse((iienee of a ciiangc | 
 ill ilufeiidant eDinpaiiy's Ijnsiiiess a new jmliey 
 was issned instead in the name (if 1'., as liefoie, 
 lint having indursed uiion it an assignment (if 
 T.'s interest to tiie plaintill's. 
 
 Hi 1(1, tliat iilaiiuid's (;iiuld not fec'over nnder 
 a renewal of tlie original poliey as there was no 
 jirivity of contract between lliein and tiie de- 
 feiiilants, or under the second poliey, as, liaving 
 no interest in tiie property at the time it was 
 made, the assignment hj' T. was iiiefl'eulnal to 
 pass anything to the plaintills. 
 
 /''/■ Wcatherbe, J., that there having heen a 
 intitiial iinderstiuidirig tliat, in eoiisideration of 
 the ))reniiuin paid, a poliey slioukl be issued 
 payiililc to the plaintiffs to indemnify them 
 against loss, if the pleadings could be construed 
 or amended to cover the case, jiidgiiient siiould 
 be given for plaintiffs. 
 
 Wijnmii tt ttl. V. Tlir Imi/eria/ Fin /»<. 
 Co. et (d., 20 X. .S. R., (S K. ^S: (i.), tS7. 
 
 should be untrue or evasive, or if the applicant 
 should conceal any facts. 
 
 There was no such warranty in the bond, but 
 the applic'ation contained a condition to tiiat 
 effect. 
 
 The language of the jilea was : " If any of the 
 answers made in the application for the same 
 should be nntrne, evasive, or if the api)licaiit 
 should conceal any facts." Tiie language of tiie 
 application was : " If tiuiie be in anj- of the 
 answers luirein made any nntrnth, evasion, or 
 (concealment of facts." 
 
 <Jiinere, wiietiier this \\ as not a variance. 
 
 Wi'hsttr eJ ul. V. Thr Mnlual h'l/irf Snri'/i/, 
 
 •-'() N. S. K., (S R. & (!.), .W; 
 9 C. L. T., r.<). 
 
 .\)tirmed on appeal to the Su])rcnie Court of 
 Canada. 9 C. L. T., 2i:{. 
 
 INSURANCE, LIFE. 
 
 Acllon on bond of nicmbcr.sliip - Misre- 
 presentation — Concealment — Warranty — 
 Variance — Tiie dcfeudar.!' .Society, a company 
 doing life insurance business, was sued by plain- 
 tiff as widow of J. R. L. \V., to recover an 
 amount payable to her niuler a bond of member- 
 ship issued to the deceased in his lifetime. Tiie 
 main defences raised were concealment, an error 
 in the statement of the date of birth of tiie de- 
 ceased, misrejjresentation a.s to the nature and 
 severity of an attaci< of apoplexy lij' wliicii he 
 had been seized, and llie date of its occurrence. 
 
 ^U the trial, judgment was given in favor of 
 the defendant on the sole ground that the attack 
 in ([ne.stion was proved to have occurr-jd four 
 years Viefore the date of the a))plication and not 
 five years as represented, the medical testimony 
 showing that the greater the length of time 
 elapsing after such an attack the less likelihood 
 there wonld lie of its recurrence. 
 
 On ap])eal tjie judgment was reversed, and 
 judgment ordered to be entered for plaintiff with 
 costs of the appeal and of the trial below, on the 
 ground that the issue on which judgment was 
 given for the defendant was not raised liy the 
 pleadings and that the other issues were pro- 
 perly found in favor of plaintiff. 
 
 The defence also set up an express condition 
 of the bond of membership on which the action 
 was brought, that the bond should be null and 
 void if any of the answers in the application 
 
 i INSUR.INCE, MARINE. 
 
 j At'tion for non-dclivcry of policy When 
 
 right of action accrues — I'laintitis insured a 
 j vessel in the oiiice of defendants, on Oct. 'J7th, 
 ISCi."), by means of tlu^ usual application slij), 
 lea\ing the broker to fill up the policy in the 
 usual way. t)n the .Slst October the directors 
 of defendant company made an entry in their 
 , record b(jok in the following word : " not aUow- 
 j ed under tlu^ policy to iimcecd to any port in 
 1 .Soutli dreenland," whicli tliey inserted in plain- 
 tiff's policy. Tlic ])olicy was not delivered to 
 ; plaintiff till tlie 1st .iunc, ISlUi. The first i;i- 
 ', tiniation plaiutitl's had of tiiis new condition 
 was a notice served upon them on the I'ith June, 
 18()(i, after the vessel had sailed to a port in 
 South Creenland. The vessel was lost on the 
 I'itJ! August, l)S(!'i, and proof of loss eyjiibiled 
 ; on the •_''_'nd Scjit., ISdli. I'laintilfs brought 
 1 action on the policy on the 'JOtii Sept., 1872, 
 I with added counts for tiie non-delivery of a pol- 
 I icy in accordance with the original contract. 
 I Defendants pleaded the Statute of Limitations 
 to these added counts. 
 
 Held, that as the action for brt^aeh of contract 
 
 would liave lain after the delivery of the policy 
 
 in June, lS(i(j, and before the loss, it was barred 
 
 by the Statute. 
 
 Uolm-t.-iOH <:t al. V. Lorett d a/., 2 R. ct C, 2d0. 
 
 PENALTY. 
 Action for — Proof of offence necessary 
 
 even where the defendant makes default — 
 
 See JUDGMENT, 1. 
 
INDEX 
 
 OF 
 
 CASES APPEALED TO PRIVY COUNCIL 
 
 ca8p:s. 
 
 Where reported | Where reported 
 on appeal. below. 
 
 Column. 
 
 Allen, (Jow r L. U., Ii.' App. Cas., 
 
 lis Unri'|)i'rtt'(l. . . . 
 
 American, Tlio Sttwiirl, •_".)•_', ;( . . . Stewart, •J.Sd , . . 
 
 Bank of B. N. A. r. Strong I App. ('as., ,'«)7 ; 
 
 :U L. '1'., (i'iT Unreported. . . . 
 
 Bartisuix, Till' t'dbwjuid Marino Ins. L. K., (1 1'. ('., .'M!!; 
 
 Co. '• .T_' I.. ■!'. , .-)|(l 1 11. .t ( ■. , •_'.-..-) . . 
 
 Bletliun, Kxoli. Bank ot ^'arnionth c. lU App. ('as., 27.'!. ."p il. iV (■., .">."!.'! . 
 Britisii Am. A.s.s. Co., Cos.snuui r. , . . L. II., I.'{ App. Cas., (i II. \' (I., 4.")7: 
 
 IfiO (J ('. L. T., ,");{7 . 
 
 i-_'o;? 
 
 97-->, n •-'•-' 
 
 .4.-)S 
 
 ,744, ]-22-2, 1-_'7S 
 101, 1IS4 
 
 ,7-'S 
 
 Cape Breton, In ro tlie Island of ."> Moore, 1'. ('. , ^''J ' (t7<i 
 
 Chase, Tlio V. A. ]\, liV. V. A. 1)., 1 1.'} ; P.Mill 
 
 Coljeiaiid Nhir. Ins. Co. r. liarteaux L. H., ti 1'. C, HI!); 
 
 ;)■_' L. T., .-.10 ,1 It. & ('., •_'.-..-.. . .744, \2-2-J, 1-J7S 
 
 Colonial Bank >'. Excliange Bank of ' 
 
 Varnionth L.ll ,1 1 Ai.p.Cas.,«4. .". It. * <;., 2]'^ 1S6, SSO 
 
 Cossnian r. British Am. Ass. Co... \ L. It., l.'{ App. Cas., (i It. ^ (i., 4.->7, 401; 
 
 Cossnian /•. West J lOH (.'. L. T., .■);i7 7'-'S 
 
 Creelman, Kearney c Leave refnscd It. vS: ('•., {)2 : 
 
 1 iOC. L. T., ]4:i 4II7 
 
 DesBarres v. Shey. 
 
 28 L. T., 592 : i 
 
 22 W. It., 27.'!.,. 2 N. S. I)., ,S27.. 
 
 PJxeli. Bank of Yarmouth r. Blethcn. . IK App. ('as., 273. . ''> It. & (i., ri'Xi . , 
 Excliange Bank of Yarmouth, Colo- \ 
 
 nial Bank c L.It ,11 Api).Cas.,Sl. 5 R. iS: (J., 21.") . , 
 
 485,844,958,1121 
 
 101, 11S4 
 
 180, 880 
 
 Fly, Tlie .\11irmeil IStewart, 171 | 1120 
 
 li'or.syth, McAllister v i.eave refused .") K. & C, 151 ; 
 
 12 S. C. R. 1 147 
 
 Furieuse, La Allirmed Stewart, 177 1 126 
 
 CJoodall, Hill r ... .'{ Murd. Kpit , 149. Umeporled 1<)U 
 
 Gow i: Allen L. It., 12 App. Cas., I 
 
 118 iCnreported. PJtKi 
 
 Gregory i\ The Halifax and C. B, | 
 
 Railway and Coal Co (-'as. Dig., ,544 ;4 R. & (J., 4,S0 7GU, 1(J9G. i;n 1 
 
 Halifax and C. B. Rciilway and Coal \ 
 
 Co., (iregory r Cas. Dig., ,544 14 R. & (i., 430 700, 1090, LSI 1 
 
 Happy (\)U])le, The 1 Kdwards, 1 IStewart, 05 1123, 1125 
 
 Hill V. Goodall 3 Murd. Kpit., 149. iUnreported 190 
 
 Kearney v. Creelman Leave I'efused R. & (^i., 92 ; 
 
 OC. L. T.,143 
 
 Kenny, Parker v Allirmed . 
 
 -) R. it (I., 4;57 
 
 497 
 
 .686, 1325 
 
 1641 
 
1642 
 
 INDEX. 
 
 CASES. 
 
 Where reported 
 on appcul. 
 
 Where reported 
 below. 
 
 Lockhart, Mott v. 
 
 , iL. R., 8 App. Civs., 
 1568; r)2L.J.,P. C, 
 
 61. 
 
 McAllister v. Forsyth |Leave refused. 
 
 1 
 McKay, MuLenn v 
 
 McLean i'. McKay 
 
 L. R, SP. C, 327; 
 
 29 L. T., .S52 
 
 L. R., 5 P. C.,327; 
 
 29 L. T., .332 
 
 McSweeney, ^\'allace i' . . . L. R., 2 P. C, 180. 
 
 Morton r. Snow 29 L. T., 591 
 
 Mott I'. Lockhart ;L. R. , 8 App. Caa. , 
 
 .-i08;52L. J., P. C, 
 61 
 
 Unreported 
 
 2 Old., .332 
 
 2N. S. D.,237.... 
 
 Nancy, The Reversed. 
 
 Parker v, Kenny Affirmed. 
 
 Shey, DesBarres v !28 L. T., 592 ; 
 
 22 W. R.,273 .... 
 
 Snow, Morton v l29 L. T., 591 
 
 Strong, Bank B. N. A. w \ App. Cas., 307 
 
 34 L. T., 627 
 
 Three Brothers, The Affirmed 
 
 United States, The Reversed 
 
 A''enus, The Affirmed 
 
 Wallace, In re JL. R., 1 P. C, 283; 
 
 136 L. J., P. C. 9. 
 
 Wallace v. McSweeney L. R., 2 P C, 180 
 
 West, Cossman v L. R., 13 App. Cas., 6 R. & G., 461 ; 
 
 Unreported . 
 
 5 R. & O., 151; 
 12 S. C. R., 1 
 
 Unreported. 
 
 Unreported. . . 
 Stewart, 28 . . . 
 5R. &G., 457. 
 
 2N. S. D., 327.. 
 2 N. S. 1)., 237. 
 
 Unreported . 
 Stewart, 99 . 
 Stewart, 116 
 Stewart, 96 . , 
 
 1 Old., 6.54 . , . 
 
 2 Old., .3,32. 
 
 160. 
 
 Western Counties R'y. Co. v. The 
 
 W. & A R'y Co L. Pv., 7 App. Cas., 
 
 178; 31 L. J., P. C, 
 43 ; 46 L. T., 351 ; 
 ll Cart., 397 
 
 6 C. L. T., 537. 
 
 Windsor & Annapolis R'y Co., The 
 
 Western Counties R'y Co. v.. . . L. R., 7 App. Cas., 
 
 178; 31L. J., P. C, 
 43; 46 L. T., 351; 
 1 Cart., 397 
 
 2 d. &G.,280; 
 R. E. D.,383... 
 
 . 2R. &G.,280; 
 'K E D., 383 . . . , 
 
 Column, 
 
 .872- 
 
 147 
 
 81,469,1121,1590 
 
 81,469, 1121, l.')90 
 .... 1007, 1121 
 470 
 
 872 
 
 1265 
 
 .686,1325 
 
 48,5,844,958,1121 
 470 
 
 458 
 
 1126 
 
 972, 1124 
 1123 
 
 . . . 166, .323 
 , , 1007, 1121 
 
 .728 
 
 273, 1162 
 
 273, 1102 
 
INDEX 
 
 OF 
 
 CASES APPEALED TO SUPREME COURT OF CANADA. 
 
 CASES. 
 
 Where reported 
 on appeal. 
 
 Where reported 
 Ijclow. 
 
 Column. 
 
 Almon, The Prov. Wash. Ins. Co. v. . 
 Anchor Mar. Ins. Co. v. C'orbett . . . . 
 
 " " V.Keith.,.. 
 
 Anderson, Fisher i' 
 
 Anglo-French S.S. Co., Guildford v. 
 
 Attorney General i'. Axford 
 
 Attorney General v. Flint et al . . . . 
 
 Axford, Attorney General v 
 
 Bank of Nova Scotia, Mott v.. . .. 
 (In re Bank of Liverpool;, 
 
 Bank of Nova Scotia, Smith v 
 
 Beamish et al. v. Kaulback 
 
 (In re Will of Beamish Murdoch). 
 Black, Ells V 
 
 Boak )'. Mer. Mar. Ins. Co . 
 Boasom, Wallace v 
 
 Bowmanville Mach. Co. v. Dempster 
 
 Bradlej', McLean v 
 
 Burkner, Wallace v 
 
 Burnham v. Davison , 
 
 Butler i'. Mer. Mar. Ins. Co 
 
 Cas. Dig., 220. 
 9S. C. R., 73. 
 
 9S. C. R.,483; 
 4C. L. T., 178 ... 
 4S. C. R.,406... 
 9S. C. R., .S03; 
 2 C. L. T., 200 . . . 
 13 S. C. R.,294; 
 
 Cas. Dig. ,55 
 
 Cas. Dig., 324; 
 4C. L. T., 116.... 
 
 4R. &C., 5.33.... 
 2 R. & G., .375; 
 2 C. L. T., 107 ... . 
 
 3R. &G.,402 .. 
 
 1 R&G., 177.... 
 
 2 R. & G., i54; 
 1 C. L. T.,.5.54.... 
 R. E. D.,429; 
 5R. & G., 107 ... 
 
 13 S. C. R., 294 ; 
 Cas. Dig., 55. . , . 
 
 14 S. C. R., 650.. 
 
 8S. C. R., .5.'i8 ... 
 3S. C. R., 704... 
 
 14 S. C. R., 740; 
 7C. L. T., .390 ... 
 1 S. C. R., 110 ... 
 
 2S. C. R., 488 ... 
 
 2S. C. R.,21 ... 
 2S. C. R., 5.35... 
 Cas. Dig., .380 ... 
 Cas. Dig., 515 ... 
 Cas. Dig., 221 ... 
 
 3R. &C.,453. 
 
 R. E. D., 429 ; 
 5R. &G., 107 
 
 6 R. & G., 531 
 
 4 R. k G., 146 
 3R. &C.,427. 
 
 7 R. & G., 222; 
 7C. L. T., 326... 
 1 R. &;C.,288 ... 
 2R. &C., 419 ... 
 
 2R. &C.,273 
 2R. &C.,584 
 5R. &G., 504 
 5 R. & G., ,388 
 5 R. &G., 301 
 
 Chisholm v. Kenny . 
 
 Cliittick, Creigiiton i'. 
 
 Cogswell, Webber v 
 
 Colchester r. Watson 
 
 Commercial Union Ass. Co. , Logan v. 
 Confed'n Life Ass. Co. v. O'Dounell. . 
 
 Corbett, Anchor Marine Ins. Co. v. 
 
 Corbett, McKenzie v 
 
 Corbett, Prov. Wash. Ins. Co. v. .. 
 
 Caldwell r. Stadacona Fire & Life II S. C. R.,212; 
 
 Ins. Co 3 C. L. T., 94. 
 
 Cameron, Pictou School Trustees v. 
 
 Chesley v. Murdock 
 
 Chesley, Queen r 
 
 2 S. C. R., 690 
 2S. C. R., 48 . 
 9C. L. T.,212 
 
 Cas. Dig., 298 
 
 .724 
 
 .742 
 
 , .73& 
 , 1627 
 
 ...370,759, 1277 
 1238 
 
 ....28,266, 1144, 
 1276, 1308 
 
 1238 
 
 184, 1107 
 
 18H 
 .*82,"ll()2, i6.34 
 
 ...438, 47,3, 1610 
 
 82, 552, 731, 1102 
 
 .... 91, 560, 680, 
 
 778, 1023 
 
 1119, 1227 
 
 ....18, .378, 1000 
 
 3S5, llO'.i 
 
 ..963, 14i;4, 1.55!) 
 723 
 
 7 S. C. R., 348; 
 2C. L. T.,248... 
 2 8. C. R., 15 ... 
 
 Cas. Dig., 98 
 
 13 S. C. R.,270.. 
 10 S. C. R., 92; 
 2C. L. T., 337 ... 
 13 S. C. R.,218; 
 9C. L. T., 211 ... 
 Cas. Dig., 208 ... 
 9S. C. R.,73.... 
 
 3R. &G.,218 ... 
 2R. &C.,.328 ... 
 ■2R. &C.,321 ... 
 |6 R. & G., 313; 
 |6C. L. T.,454 ... 
 !? R. &G., 497; 
 J8C. L. T.,62 ... 
 2R. &G., 90; i 
 
 1 C. L. T., 568 .... i . . 690, 1009, 1.329 
 
 2R. &C.,47 i 841, 1576 
 
 '6 R. & G., 549 . . . . i . . . 374, 936, 1090 
 |6R. &G., 309 697 
 
 2 R. & G., 231 ; 
 1 C. L. T.,71l 714 
 
 43, 709 
 
 .. ...381,1240 
 .538, 568, 1515 
 
 246, 512 
 
 255, 891 
 
 Cas. Dig., 215 
 9S. C. R., 256 
 
 1648 
 
 Unreported . . . 
 2 R. & C, 570 . 
 2R. &G.,375; 
 2C. L. T., 107 . 
 4R. &G.,50... 
 3R. &G., 109 . 
 
 83,715 
 
 538, 568, 712, 1515 
 
 ,742 
 .736 
 .725 
 
1644 
 
 INDEX. 
 
 CASES. 
 
 WIllTI' l'L'|)<)l'tUcl 
 nil a|)|iual. 
 
 I Wliei'o reported 
 btitow. 
 
 County of C. liivtoii, ('rcwo-lU'iuli; v. II S. C. I!., H . . , 
 
 ] 
 Cox, C.imn r ;{ S. ('. I!., -.'(Mi .. , 
 
 Craiyeii, North Am. Lifu Ass, Co. r. . i;t S. C. II,, 'J~H . . 
 
 Crt'eliimn, Kuiina'y r M S, C, K,, .'{.'J; 
 
 tiC, L, T,, :VM .. 
 Creiglitoii r, Chiitick 7 S, C. U., 'MS ; 
 
 '.'(', L, r,, '.'IS , 
 
 Croiglitoii, Dutl'iis r 14 S. C, K,, 74(t ; 
 
 7 C, L, 'I',. .'fS!l. , 
 
 Creiglitoii r. Kiiliii Cus. Dig., .'ill . . , 
 
 Crewe- IvUiiile c. Comity of C. ]lreton. 14 S. C. H,, S , . . , 
 
 Cuiniiiiii.L,'s, ( iliidwin t' '('as. Dig,, 'J4'i ., 
 
 CiiiiiiiiigiiiUii, t,>i.'.eeii (' Ciis, Dig,, l((7 , . . 
 
 Column. 
 
 7 H. & <:,, •.'('.( »: 
 
 7 C, L, T,, ;t4!t 371, HO,-), l-Jol 
 
 i:iO!) 
 
 •_' R, kV., ,VJS 1'2'_», 4'.';}, M-1, 77... 
 
 It.Vi, 1171 
 II I!, .t (i,, 440; 
 
 tie, N. '!",, -as 711 
 
 W I!, .V <i,, !i'.'; 
 
 (ic, I., r,, 14:1 496, I2:i4 
 
 ;•-' R. .V C, ill); 
 1 C. L. 'I',, nC.S ....'., 090, KMMI, 1. •!•_'!• 
 
 i j 
 
 Unreported I-.IO 
 
 •-• R, .V <;., 147 .V-'4 
 
 7 R. HiV,., •.•(!(» ; 
 
 7C, L T,, ;U!) 371, HOo, I'JOI. 
 
 I, '!()<) 
 
 4 R, iV (i., lOS s;i, 7S'J. 1(»7<» 
 
 ti R. ct (;., .•!! : 
 
 tic. L. T,, i;i!) 
 
 .41(», 701, i;il7 
 
 Dartmouth, Wardens, &c. of, Queen v. 
 
 " " (I. " 
 
 " " r. (,)ueeii ot al, 
 
 Oavidsoii, < lates c 
 
 Davisiiii, llnniiiaiii c 
 
 Dempster, IJowm.uiville Maeh. Co. /', 
 
 Diekie '■, \\' luoitii 
 
 (Kings Coiiiity Kleetioii Case). 
 Diekie el al,, Wundwurlli et al. r, . , . 
 
 Dickson, Kearney r 
 
 fl.S, C, R,, .•|()9 .. 
 ("as. Dig,, 'JS,') , . , 
 14 S, C. R., 4.-)... 
 ('as. Dig., .■)|ti... 
 Cas. I )iu,,. ■)!,■),,,. 
 •-'S. C. Y;., •_'!.,. . 
 8 .S. C, R,, |<r.>, .. 
 
 14 S. C, R,. 7;!4, , 
 
 Cas. Dig., •_'.-)(»,., 
 
 .,1 I!, .';: (i,, 4(I'J. , 
 
 , .-) R, k (.',, .'ill,, 
 
 , Uniep<prteil . . . . 
 
 :> R, .V C, 4.'il., 
 
 i) R, it (I., .'tSS. 
 
 .,,1.38. S.-a, l'j;i(i 
 
 l(».')4, i-j;i7 
 
 i.'is, io;i7 
 
 ... r)-.4, !t44, l.-(il 
 0(W, I4.S4, l,V>ii 
 
 Dom, 'relegi'a])li Co, v. .Silver 
 
 Doiill, MrDonald /• 
 
 Doull r, Mellieilh 
 
 Donll el al. Western Ass. Co, r 
 
 Duffus r. Creigliton . . 
 
 E1I.( r. Black 
 
 I']sson et al., Wood *• 
 
 Kurt'ka Woollen Mills Co. v. Moss, 
 
 Fielding et al, /•. !Mott et al 
 
 14 .S, C, R,, 743.. 
 lO.S. (\ R., -J.'W; 
 •_'('. L. T.,-_'.VJ .. 
 Cas.|)ig,,'-'14.... 
 14 .S, C. R,, 739.. 
 
 IL'.S, C, R,,44(i., 
 
 14 S, C. 11,, 740; 
 j7C, L. T., ;W!), ,., 
 
 ^14S. C. K,, 740; 
 7C. L, T.,;{!)0. .. 
 ,S. C. K., •-';«»; 
 4 C, L, T., )1(k,, 
 n .S. C, R,, !t! ; 
 (i C, L, 'I'., 20,.,. 
 
 '14S, C, R., •2.~)4, ,, 
 
 •-' R. i'v: C.,273 lllll, li.'L'7 
 
 . 4 R. &. C, IIC) (Ml, .■|0(i 
 
 , 7 R. c\: (i,, !)(i; 
 
 7 C. L. '1'., 144 .... 8.", -24.-), V.V.) 
 
 , t) R, k<'., (m; 
 
 X\V. L. T„ 140,.,, S.-., (l(;i 
 
 , ^OX. S. R, ,!).■),, , ,.G.")4, l.'?87, l(iu;i 
 
 •2 R. >'v: (i,, 17; 
 
 ,il C, L, T,. 2S4,,., 401 
 
 , 3R, & ('., •27li 587, 7;il 
 
 , |7 R, & (;., 341 ; 
 
 17 C. L T., 40(1,... 1.-2, S.-.7 
 
 , (i R, .t <i,, 478; 
 
 it) C, L, T,, y,V.) i 40, 700, 70,-) 
 
 '" ' 12,-.0 
 
 Unreported. 
 
 Fisher v. Anderson . . . . 
 Fitzrandolph v. Slianly. 
 
 4S, C, R,, 400, 
 Cas, Dig,. !.-•),, 
 
 Flint et al., Altornoy General v 
 
 Foote )', Footc 
 
 For.syth, McAllister v. 
 Fraser, Simon, In re, , . 
 
 Frasor v. Tupjier 
 
 Fraser, Wallace v 
 
 Cas, Dig,, 324; 
 
 '4C. L. T., 110,.. 
 
 lir>S. C. K,, OlM); 
 9C. L. T,. 10 ..,, 
 
 12 S. C. R,, 1 
 
 Cas, Dig., 240, ,., 
 Cas. Dig., 240. .. 
 
 !2S. C, R , .522 ,.. 
 
 Gallagher v. Taylor , , 
 
 , ..,15 8, C. R,, 368 ,,, 
 
 7R. &(i,,222; 
 
 7C. L, T,, :Wi .,,4.38, 473, lOlO 
 
 4R, &G., 270 540, '117 
 
 (i I!, &C,, 274; 
 
 tiC, L. T., 451 85, 945 
 
 R, .K; (i,. .'l-'iO; I 
 
 OC. L. T., 4!)l ' SOS 
 
 1 R. & (;., 177 1027 
 
 2R. &(i., l!l!t; 
 
 1 C, L, T,, 705,, ..|....160, 104; ,121 
 
 3 R, & G,, 4,53 , , . ,28, 200, 1 1 44 
 
 1270, i:ios 
 
 20 N. S, R.,71 1 1021 
 
 5 R. k (!,, 151 i 147 
 
 1 R, i\: (i,, .•i.-)4 ....S2, 01.5, 1102 
 
 1 R, it < i,, 3.54 ; , , . .82, 015, ! I02 
 
 2 R. & C, 3;}7 '■ 512, 820 
 
 1 R. & (;., 279. 
 
 ,747 
 
INDKX. 
 
 1(345 
 
 (ASKS. 
 
 Wlu'i't' r<'|)()itL'(l 
 
 nil iipiK'nI. 
 
 I 
 
 < illtfs I'. Idivid.iiill ('us, |)ig., "ilti . . . . 
 
 <;.clcl.s Wllkiiis r M S. ('. It., •.'(i;i 
 
 I III II' lliiiikcr's IsluMil), I 
 
 (;ill.s|,i,., Mcr, hank dt lliilitiix '•.... Id S, (', K,. .HI'.' ; 
 (111 II' Sici'l Co, oi Ciiiiiiihi, L'td), .') (', t., 'I'., •JTl'i. . . 
 
 Wlu'i'i' ri'iiiii'toil 
 
 Ix'lliW. 
 
 :. K. >'t (i.. 4.SI.., 
 
 ;! K. A ('., ;i(i7.., 
 
 Cnlllll 
 
 .">», !I44, I. ".(14 
 . MO, ::.(•, 1144 
 
 < ilihln ill r, ( 'iiiiiiiiiiijjs 
 
 <;M'l.'nlV /'. IliilifilS \ C. 11, I!'V \- 
 
 ( '(Pill (' ' . , , 
 
 Ca;-, Iti).'., '2\:>.. . . 
 
 Ciis, Diu'., y.u. ."M. 
 
 (iiiililioi.l /'. An;. 
 
 < lllIlM f\ ( 'ii\ . . . 
 
 ■'rciirli S, .S, ( '(] 
 
 !» S. ('. l:., .'ili.'l ; 
 ■JC. L. 'I'., 'J.Vi. .., 
 .'(S. (', 1!., •_'!((; .. 
 
 llalif,t\ & C. 1!. Ky .t Ci.al Co., 
 ( lici^oi'y (' 
 
 ('as, Dii;., 4;U, .'.44. 
 Cas. Dij,',, L'l-J 
 
 llali;';.\ >t C. 1!. l:'y >*c < '<.al Co., 
 
 Koikiii r 
 
 (Ill ro I'itaoii l{'v Daniau'i'.s). 
 Halifax iS: C. I!, it'y & ('..al Co., 
 
 Levy /• Cas. Dig., .'il(i 
 
 ll.ilifax.'City of /'. Ki'iiiiy .'{ S. C. K., 4!); ... 
 
 Oakcs (• 14 S. C. K,, 040 ... 
 
 '•. Walkii' ....jCas. Dig., !IS ., .. 
 
 Halit'ax City Kail way Co. c. <^>iilvii . . ;C.i.s, Dig., :!S!» 
 
 Halifax Sli'i'cl l!ailv,ay Co. /•. (^>iU'i:li,i('as. Dig., IS 
 
 Hamioil, McLean r. . .' .'IS. C. 11., TtX) 
 
 Halt, rroo|, ,1 al, /' 7 S. C. I!., .".I'J; 
 
 •JC, L. T., •_'.-. 1 ... 
 llarvry, I'irlou liank i-t al. '• 14 S. C. It,, 017. .. 
 
 Iln.kin '-. Halifax ,«c C, I!. Itv & 
 
 ( oal Co Cas, Dig,, •_'4-_' 
 
 (111 ri' I'ii'tou It'y Damages), 
 
 Ho- ten nan, l.i'( 'aiii '• Cas. Dig,, .■)U4 
 
 Ilowanl .'t al. r. l.anrashii e Ins, Co.lll S. C. It., !I'J ; 
 
 OC. L. "I"., -JO 
 
 Iluiiti r. Hoss /' 7 S. C. It., 'JSII 
 
 .'> It. .V (i., 17, 41), 
 
 lu !:)1s,70I,7!h;, iinc, 
 
 I 1107, i:i.'!-J 
 
 I It. .\; (;., !(is s4, 7s-.', l(i7i» 
 
 4 K, >\; (i,, 4;ill ' , ;t40, 700, lll'.'ti, 
 
 1 I0!m, loiiit, ii.vj, 
 I i;ni, i.-)07 
 
 ■J It. \ C., .-.4; 
 
 I C. I-. 'I'., .V.4 ;!70. 7.->!t, l'-'77 
 
 •J U. \ ('., ,VJS !•_'•_>, 4'.':<, r.4-.', 77.'.. 
 
 <x,:,, 1171 
 
 4 It. i\: C, 4;ili :i40, 7f.O, 10:.'0, 
 
 101)0, 10!)!), II.VJ, 
 
 I It. >>c (;,,44S,,,, 
 
 l.'Ul, 1.-.II7 
 
 no, i.Ti, iitio 
 
 Unri'iioi'lud !)liS 
 
 I It. .\: <;., .'{!) I-H».01s,lj(;(),l4it7 
 
 I It. it (i,, lis s-2, 107, 171, I0!)1 
 
 ;4 It. iV (;,,.'i7i •J4, .'{77, 017, 0'j;{, 
 
 j 0'J7, into, 10O4 
 
 riirc|)oi'ii'il I ]{)'A 
 
 L'liri'poi ti'il Ill 
 
 ;< it. iV c,, 101 looi, I'J,'.!), I.-.71 
 
 I'J It. >t (i,, .'i.-.l ; 
 
 •J C. I.. T., !)."> KSO,li()S,rjJ.'),l.".so 
 
 7 K & (;,, l!)(i; 
 
 7 C. L. 'I'., I.'io .'i.'i.s, IJI4 
 
 1 K. i'v: t:., 44S !)0, i;),-., IKin 
 
 •J It. .^c ('., ^-^U .s;!o, luMi 
 
 .lohn-iin, ( 1. It., In re 
 
 Cas. Dig.,. 'ISO, .■.40,,. 
 
 .ionrs r. Kinney II S, C. It., 70S., 
 
 .loni's (I al,, Slioley et al, /• I.". .S, C. It., ;Ji)S. . . 
 
 Ix.in.liek r. Moll'i.soil -J .S. C, It,, l-J 
 
 IxaiiUiaek. I'.eaniisii el al. r :{ S, C, It,, 704 
 
 (In IT Will (if lleainisli Murdoeli). 
 
 Keaii, Kearney r .'i S. C. U,, .'{,'{J ; 
 
 (111 re Hiisjiital for Insane). Ciis. Dig., oS.'l, ;«).'?. 
 
 Ki'arney r, Creelinaii 14 .'^. C. K., '.VA ; 
 
 (iC. L. T., .'W!) ..,, 
 Kearney /', Dickson ('as. Dig., J.'.O 
 
 .■. It, .S: (;., I7J 701, 70S, !)4."> 
 
 'J It. .^- (;.,44 4.".1,47I,117!),14!H* 
 
 7 It. ^ C, ,-.1 ; 
 
 7 C. L. '1'., !in .-.,-)!), (il,'., IIOJ 
 
 '.■) U. & (i., •J44 0!)J, l.'ion, i:VJS 
 
 •JOX. S. It.. .'{7S ; 
 
 !)('. r.. '1'., lii ]:>•), 4i;s 
 
 •JR. & C., 14S 44, Si, 10.-4 
 
 •A K. & (',, 4'J7 .s^j, I lo^j, io;u 
 
 14 s, c, 11,, V4;{.,., 
 
 Kearney r. Kean .'^ S, C. 11., .'W'J ; 
 
 (111 re Hospital f(.i' Iiisaiie). jCas. Dig., 3S.'?, 'A<)'A 
 
 K.'itli, Aiielior Mar. Ins. Co. r |J) S. C. R., 4S;< ; 
 
 14 C. L. T., 17S .... 
 Kenny, Clii.sliolni /• jCas. Dig,, "JOS 
 
 Kenny, City of Halifax )• JS S. C. R., 407 
 
 Kings County, N. S. Eleulion Case . .!8 .S. C. R., lO'J. . . . 
 (Dickie )'. Woodwoi'tli). I 
 
 •J R. & ('., .-.01 SJ, :i'J7, 1 10 J, 1 1(1.'! 
 
 R. it <i., !)'J: 
 
 liC. L, T., i4;{ 400, ]-2:n 
 
 It. it (;., o.->; 
 
 OC. L. T., 140 .... S.-),C01 
 
 •JO X. S. R,, !).-> 0.-)4, 1387, lOO.'f 
 
 •J R. & (',, oOl .... SJ, .•^•J7, 1 102, 1 lo.'i 
 
 •] n.k (i, 40-j 7:^s 
 
 7 R. & (;., 4!)7; 
 
 8 C. L. '1"., O^J -J.V), 801 
 
 1 R. &(i.,:W 140,01 8, rJOO, 1407 
 
 4 R. & ( ;., 10.-) I 00, 506 
 
n;4(i 
 
 INDKX. 
 
 CASKS. 
 
 Win ri' ic|i(ii(»m1 
 nil a|)|ii'iil, 
 
 Wlii'iT r('|i>irt('il 
 
 Ill'loW. 
 
 Cnllllhll. 
 
 Kiiiu', Si. (;i(ir>.'(''M l^lI•i^ll (' 
 
 Kiiiiiiy, •Iciiu's r 
 
 Kllllll, Clfiglltnll (' 
 
 I.aii(;i>liiic Ins, Co., HowmiiI (I :il. ( 
 
 I<:illi|iTN r, W Kvni 1 1| 
 
 Lall.', Mrltnlial.l r 
 
 f.iuiru', I'dlici'tMoil r 
 
 !.<'( 'iiiii /'. Iliistoniiaii 
 
 Ij'llnir i\ IJilcllif 
 
 I.i'vy '•. Ilalilax \('. 11. K'y.'v; CoaKo 
 
 [..iviTpOdl. Ill II' till' llaiiU III 
 
 I "''an i: 'I'lic ( 'MiiiiiiiTiial IJii. Ass. ( 'n 
 
 .Mi'Allisici- /•. I'ursvili. 
 
 .McDiiiiald r. Dr. nil ... 
 
 " ''. Lane . . . 
 
 •is. C. It., 14.T. 
 II S. C. K., 70S, 
 
 (a,. Hi,'., .-)ll... 
 i 
 
 11 S. C. It.. !••.•; 
 (i ('. I,. 'I'., •.'(! ... 
 
 •_'s. c. i;., I.">S ., 
 
 7 S. ('. l:., IC.'J; 
 
 •-'('. L. 'I'., ;t;is. . 
 14 S. ('. I!., -.'.-.s. 
 ('as. IH^'., ."i(U .. , 
 ;i S. ('. I!., 07(1; 
 
 I Carl., ISS . . , , 
 
 Cas. I»ij^;.. ;il(l. 
 14 S, C. II., (i.Ml 
 
 i.'is. c " ■'•■■ 
 
 IL'S. ( 
 
 •_' II. iV ('., ;ki I i(H>, .'i<t(i 
 
 I.-. ll.iV: (i., 'JU '..(HCJ, i:i(«i, l.'f.'s 
 
 '•-• I!. \- C., 147 I .''-'I 
 
 I!., ii;(» ., 
 
 .M.l'hrrsnii. 
 
 Mr|),,n,,l| ,•. Mr.Ma.t.T 
 .\hl»(iii.L,MlI, Sinyllic '■. 
 Mr( iiiuaii '•. Mnckli r . 
 .M.Iiit-sli. .Mcai.'V r . . 
 
 M.-Iliviih, I)<,i,ll ,•.... 
 
 M'-'Ki'iizic r. Cnrl.clt 
 
 .McLean r, liiiiilKy 
 
 Mi'Lcaii /■. Il:;nniiii 
 
 .Mc'MasIrr, .\|r|),,nfll >■.,,. 
 .\Icl'liul>.in, .McDonald r . . . 
 
 . Cas. Dij,'., '.'14 ... 
 . 7 S. C. I!,, !(;•_' ; 
 
 •_'('. L. 'I' ,:!;;s ... 
 
 . I'JS. C. 11., Ihi; 
 
 (i c. L. 'I'.,. •is,-. ... 
 
 . Cas. |)ii{., 141 ... 
 .1 S. C. 11., 114 ... 
 . Ciis. Dij;., L'.-iil ... 
 .14 S. C. i;., 74(1; 
 
 7 C. L. 'I'., ;)!•(>.... 
 
 14 s. c. i;,,7;{!i. . . 
 
 . ('as. Di._'., '-'I,". ... 
 
 . '.'s. c. i;., ,v!.- . .. 
 
 .,.■! S. C. I!., 701; . .. 
 .'('as. Dig., 141 ... 
 . I-_'S. C. K., 4I(J: 
 
 (ic. L. 'r.,;!s.-. ... 
 
 Mai>liall /■. Miiniii|i;i|ii\- ot SluHaiinc 14 S. ( '. It., 7.'i7 ; 
 
 7 ('. L. 'I"., I.'fd ... 
 liis. c. 1;., ;;ii.'; 
 ,-. c. L. 'r.,i.'7i;.... 
 
 .Mt'ivliaiits' r.uiik lit llalit'a.\ '■. 
 
 ( lilli'spic 
 
 (In re Slccl ( '... of Ciiiada, L'lci 
 
 .Mmx'liants' r.ank /•. Smith 
 
 .Mcr. Mar. Ins. ('(.., lioak /• 
 
 I'.iillvr r 
 
 '■ '■ ( )'( 'oiinor (' . . . . 
 
 " " /■. KuMisi'y 
 
 " " Trooi. r 
 
 .Mofkler, Mc(Jr(\van r 
 
 Mf.ir, Si.veioigii Fire Ins. Co. r. . . . 
 
 .Montreal Ocuaii S. .S. Co. r. lloniio. 
 
 Moonoy ('. Mcintosh 
 
 Cas. Dii,'., .'SiMl . , 
 1 S. C. I!., III! .. 
 Ciis. Dig., '_>•_> I .., 
 !!l C. L. 4'.,-_'(l!l .., 
 !)S. C. i;.,.-.77; 
 4 C. L. 'J"., 17!l .., 
 I.'{ S. C. R., .■|(m; ; 
 (!C. L. T., .Ssii ... 
 Cas. Dig., L'.'til ... 
 14 S. C' R.,(il2; 
 7('. L. T., IL'9 ... 
 Unreportud 
 
 :. 1!. \ C, I7-' . . . 7t»l, 7ii>, HI." 
 
 •J 1;. >^c C., .S4... 
 •J 1!. iV (;., IC; 
 
 I c. L. 'I'., ;u(i iin.'i 
 
 I'mi polled I s:i..Mili 
 
 •_• 1;. \ ('., ■-'•-".• s.'Mi, insu 
 
 •J 1;. \- ('., tr.d sd, I'll, --'lis, ((i;(, 
 
 I 14(1. I.'tiil 
 I jii c-porlrd '.Ids 
 
 <i 1!. \ (i., r..'!i iM, 1 1117 
 
 li 1:. \- C., .■lull (i!l7 
 
 :. K. .t (;., i:.l 147 
 
 :i K. i^ ('., -..^c. ."1S7, I'M 
 
 •J I!. &(;., .".7. 
 
 I c. L. 'r.,;un lilt;! 
 
 1; 1;. .S: (i., -JV^ ; 
 
 tic. L. '1'., n;{ Ki.'.s, iiss, I'.'ii 
 
 :. U, A' <:., 4:is ....i 447, 117."> 
 
 I U. AC. ;i7l ....' Iii!t7 
 
 Ciiicporlcd .... 
 7 K. iV: (1., 4I!»: 
 7 ('. L. 'I'., 4:!(i .. 
 7 K. ^ C, .'Ul ; 
 i7 ('. L. 'I'., 4IMi . . 
 
 4 11. & (;.,."(! 7.'iil 
 
 I'J U. i'v ('., r>s\ is, ;i7s, KKKi 
 
 .•t II. & ('., Kil 10(11, iLV.H, l.-,7l 
 
 .-. 1!. vV (;., 4;!S 447. I IT"' 
 
 i; I!. vV C., •JfJ: 
 
 lic. L. 'l'.,4i;j lo.'is, iiss. i-.'ii 
 
 7 1!. .^: C., 171 ; 
 
 7 c. L. •!".,•_• ts ■_'.■.;!. :ii:!. :.l:f 
 
 .■. i:. \- (I., 17, 4!i, 
 
 141 .■ils,7(il,7'.lt>, IM"i 
 
 1107, l.'CTJ 
 
 lifi;! 
 
 1 U. .^ ('., 'Jss .... s-_>, .-..-,■_', 7:11, 1 iti-' 
 r. H. .V- (i., ;ioi T'-'.'i 
 
 •JO X. S. l!.,.-il4 741 
 
 icii: 
 
 1.V.7, iii;)7 
 
 l.V-', .s.'.7 
 
 Morrison, Kandick r 
 
 Mo.ss, Eureka \VoolIun xMills Co. 
 
 Mott V. Tiiink of Xova Scotia 
 
 (In ro the llarik of Liverpool). 
 Mott et al., Fielding et al. r 
 
 Mott, Stuart r 
 
 Murdoch, Keainish, In re Will of. 
 Mnrdock, Chesley r 
 
 US. r. R., 740; 
 7C. L. T., ;{<)0 ... 
 •JS. C. H., 1-2 ... 
 11 S. C. U,, 01 ; 
 (iC. L. T.,12(J ..., 
 14 S. C. R., 0.V) , 
 i 
 
 14 S. C. R., •.>,->4 ., 
 
 I 
 
 il4S. C. R., 7.'W., 
 '3 8. C. R.,7()4 ... 
 •2 S. C. R., 48 ... , 
 
 7;i4 
 
 7-'!> 
 
 ii;w 
 
 .-.!)•_', 70;! 
 
 111.-. 
 
 II!. .^ (;.,-j'jo .. 
 li It. .V (!., ;c_';i; 
 
 (iC. L. T., 4.-.4 .. 
 
 l'iire])(.rted 
 
 '(I K. &(;., .-.O-'; 
 OC. L. T.. .-41... 
 7 Pv. >.V (i., .'il-J! 
 7('. L. T., :I7.-... 
 7 R. &('•., 41!l; 
 
 7 (". h. 'I'., 4;i(i 1.'),".7, l(i;)7 
 
 •JR. it ('., 14,S 44, 81, l().-.4 
 
 (i R. it (i., •->74; 
 
 |(iC. L. T.,4.-.l 8.-), !)4.-. 
 
 (J R. & (J., .-..SI 184, 1107 
 
 (IR. & <!., ;W!); I 
 
 (H\ L. T.,4!ll 8()N 
 
 Unreported 87.'-! 
 
 •.i R. it ('., 4-_'7 ..... . .S'2, 1 10i>, W,U 
 
 ■2 R. & C, .Sl>l ...... ..-viS, .W8, l.-.l,-. 
 
 i 
 
INDKX. 
 
 I<i47 
 
 CASKS. 
 
 Wlnif nimiictl I Willi !• ii|i(ii iril ., . 
 
 on ii|i{iL':il. liiliiW, I 
 
 Mutual Mcliif S(MJ( ty, Wil.stcr c. . 
 N'liiili Am. I. ill' Asm. Cii. c. ('liiigoii 
 
 »C. I,. T., -Ji;! .... •Jii N. s. 1}., ;U7; 
 
 !M'. I,. 'I'., .-.!) lu;;-.', lii.'lll 
 
 i.'is. c. i;., I'Ts 
 
 O.iki's ,•. Cltv "f llalifilX |t .•<. r. !!., dill . . 
 
 O'Cniiiir.r -•.■'I'lic .M.'U'li. Mar. Iim. ( 'n. It ('. I,. 'I'., ■.'n!( . . 
 
 < I I »Miiii(.||, ( '(iiitVili'iaiiiiii l.il't.' As^i. 
 I '". Ill' ( '.iiiitla '' 
 
 (I'Tunl,., W;lllar|. ,• 
 
 I'alrh r. I'illiiitii 
 
 I'irliui Kallk l!l al. r. llaivcy 
 
 rirl(]|| ,'^,■||n(l| 'I'lll.-it CCS C. CalllCIOll . . 
 i'itlll.in, ralcli r 
 
 I'l'd'!"!', <jtllCCll !• 
 
 I'l (pV. W'a^li. Iii'^. ( '(I. r, .\ lull 111 
 
 " " /■. Cdllictl 
 
 I'lljjll, Rolicilsdii <• 
 
 ((•llCfii '•. ( 'llliliili;^liaiil . 
 
 KtS. ('. l;., ill'; 
 
 •_>c. I-. ■)'., ;n7 .. 
 i:i s. c. i;., -.'is ; 
 lie. I,. ■!'.. •Jii .. 
 Cn.M. hiu'., '-''IS . . 
 ('us. 1)1 J,'., »•_••_' .. 
 
 ('as. Dig.. 'Jill .. 
 
 II s. (', ;;., (ii7 
 
 •J s. ('. U., li'.iu . . 
 • iis, Di-., •Jl!t .. 
 
 I."i s. ('. i;., till : 
 !JC. I.. 'I'.. Is .. 
 
 ('as. ])■]•:., •.'•.'u .. 
 
 OS. ('. I!., •.'.-)(•, .. 
 
 i.'> S. ('. I!., Till) ; 
 !>('. L. 'I'., 17 .. 
 
 ('as. hi.'., |(i7 
 
 '• ll.ilil'av Citv Kailwav Cii. '• ( 'as. I »ii:. , .•|S!) .. 
 
 " The llalitax Si. l;'v(''ii. /■ ('as. Hi;,.., Is , . . . 
 
 " '■. l'lrr|Kr '. I.") S. C. l;., nil : 
 
 !»('. I,. T., IS .. 
 
 '■ '■. 'I'lir W.liarlis. .^r. of D.irl. '.I S. ('. l;.. .'lUil . . 
 
 " Tlir Wanlrii.s \-c. "I Dart. r. I I S. ( '. !;., 1.". .. 
 
 " " (as. Diji., "Js.'i . . 
 
 (.luiTU r. Ciii'-lrv DC. I,. T., •2\-2 .. 
 
 (i I!. \- C., nil; 
 It; I . I.. 'I'., .'i.'ls .. 
 
 711 
 
 .]! I!, k (l..!ts S'J, |(i7. 171. H'iM 
 
 . •-'(I \. s. It., ,•.!» 7tl 
 
 •J I!. \ (;., '.'.'Il ; 
 . I < . I.. 1'., 711 714 
 
 . l'lllr|MilliMl , S",7l.'l 
 
 , •_' I!. \- ( '.. ."i7"i . . . .VIS. .'(■|N.7I-. I"'l'< 
 . I i; \- <:., .•i.'.7 .... lii.'JJitiMn;;.'. II i;i 
 
 . 7 l;. >.<: (.., •-'!is; 
 
 7C. I.. •I'.,;:7l T'JO 
 
 7 l;. ,V C, I'.iii; 
 
 7 c. I.. 'I'., i.'i'i ;i.'''^, i'-i-« 
 
 _' i;. >«i c., .'I'js .'isi. i-.'i(i 
 
 7 I!. .V C., '.'DS ; 
 
 7c. L. T., ;i7i :•-'» 
 
 Ciiic|Miiii'il 4l(i 
 
 I I!. .^ (;., .■.;;.•! i-M 
 
 ;! i;. A «;., Km 7'-'.'> 
 
 •Jii \. s. i;., i; 
 
 .11, 7-'i, I'l;;!) 
 
 li i;. \ c., .Il : I 
 
 lie. N. 'I'.. i;;'.i ...... jHi, 7!tl, i::i7 
 
 I'liicii.at.d ' I Hi:{ 
 
 Ill 
 
 IKi 
 
 I K. iV c. III-.' ...... I. 'is, s.-.;;, i •_':;•> 
 
 rMii"|i'ii't(ii I.'ls. i'j.'(7 
 
 ."> I!. \- <:., .'Il I 111." I, I-.';;? 
 
 (i i:. \- c, .'ii;: ; ; 
 
 i; ( . I,, r,, I.". I ....' •_Mi;. .".!•_' 
 
 I!ili!iir, Liiioir r 1:{ S. ('. |;.. 0711 ; •_>!;. X- c., i.-.u sd, l!)l, 'Jils. (I!;!, 
 
 |l Cai-t., 4.SS j I lltCi.' I.'in4 
 
 Ui.lifrtsiiii r. I.alllic |U S. ('. K., '.'."iS, . . 'L'lliviinilcil N.'!, ."i'»(i 
 
 r.iilicltsnii I-. i'lmh h.") S. ('. 1;., 70(1 ; 
 
 j'.M'. I,. 'I'., 17 .... -Jfi N. ■^. 1;.. I."' ....'ill, 7'Jl, I'i'in 
 
 lininic,'rhc .Mmitifal OiTaii S S. Cii. /■. ilJiuciiiiftcil 7 1!. ^V • J., ill- ; , 
 
 7 ('. 1.. '1'., ;i7."..... i iii.'i 
 
 lio.ss r. Himtcr (7 S. ('. U., -.'.S!) .... •_• It. .vc r,., M 4,">1, 171 . 1 17!), 14!ii) 
 
 Ki.yal CaiiiKliiiii Ills. ('(!., Siiiiih r.,.i('us. Dij,'., lT ."> II. ^^ ( i , .'i-.'-J 7ls. Iii7l 
 
 Ituiiiscv, 'i'iio Mercliaiils' MaiiiK' '!t S. ( '. It , ,")77 ; ; 
 
 liiMiraiic.' ('(.. I' K'. I,. 'I'., 17!) .... 1 It, \- C , •_'-J0.... 7.'U 
 
 Seaman, Wisl -• ('as. Dii,'., •_>|<l .". It. i'^c C, •-'(i7 
 
 Sluuilv, Kil/.raniliiliili r ;Cas. Dig., I.V.) •2 11. i^cC, I!l0; 
 
 I 1 C. L. T., 7i).->.... 
 
 SlitlliuMio, .Muiiiii|)alilv of, Mar- lU S. (". Tl., 7.'i7 ; |7 R. it t i , 171 ; 
 
 .'■liall r ' i7 V. L. T., i:«) !7 ('. L. 'I'., :.'4S 
 
 Shdicy ct al. ('. Jimcs ct al ,1,'. S. V. It., 'AdS. 'JO X. S. R., .•{7S ; 
 
 ! !•('. L 'I'., (il 
 
 Silvur, The Doiu. Tclcgiaiili Co. v...;10S. C. R,,23S; •_> R. Ot C., 17; 
 
 \-2 (J. L. T., -i.VJ 1 C. I>. T., •_>S4 
 
 Smith r. The T.aiik of Xovii Sc.-.ti;i .. S S. ('. R., ,m,S 4 R. it C, 14(1 
 
 " The Mfivhaiits' Rank r ;Cas. Dig., :V.W 
 
 " Tho Royiil Caiuulian Ins. Co v. Ciis. Dig., 1217 .'> R. ^'v: (1., ;«•_' 
 
 Smylhc r. McDougall , 
 Souther, \\'allace r . . 
 
 1 S. C, R., 114 1 R. & (;., .'{71 
 
 2 S. C. R., .-)<)S ....'_» R. it C., r)4S ; 
 
 1 C. L. T., .V)ti .., 
 
 741 
 
 . 1(10, 1(14, .V_>I 
 
 .2.-.;!, :{4;i, ."ii:? 
 
 1 .'!), 4(1S 
 
 4(11 
 
 1S.S 
 
 1103 
 
 71s, 1071 
 1()!»7 
 
 200, 212, 224, 749 
 
1648 
 
 INDEX. 
 
 CASKS. 
 
 Where lejun'ted Where reportuil 
 on iippeiil. lieliiw. 
 
 Ciihmiii 
 
 Siputli.'r, Walliire /• Cas. l)ii{., 3,s;i 
 
 OC. L. t., --'lO.... 
 
 Si)\uii'i:;ii l'"ire Ins. Cd. /•. Moii' 
 
 Unreported ' 82, lUci. 1 1<»;{ 
 
 •20 N. S, R., -)09 '.'O.-i, -.M.-), -.'is, 
 
 22U, 4'JI, ssu, 
 I 1 I(i;f_', IIO-J 
 
 US. ('. 1!., (il'J; () It. Sc (i., .-)()•_'; 
 
 7 ('. L. 'I'., )•-'!) lav. L. T., ,-)41 .■)!):.', 7n.{ 
 
 Stad.i. a h'ire anil Life Ins. Co., 11 S. ('. 1!.,'_M'2; I 
 
 Caldwell r ;{ (I. L '1'., !U :{ 11. & ('.., -JIS 4.S, Td!) 
 
 St. Ccor^'e's Parish v. Kinn •_' S. C. H., U.S.... -J U. & C., HSli KM), .S'.Mi 
 
 Stuart r.' Moti ' 14 S. C. K., I'M Uiweported S7.S 
 
 Taylor, (lallaglier r ,■> S. C. U., .StiS 'l R. & C.. •_'7!) 747 
 
 Tracey, Young r Cas. Dig., S'J ."> II. & C, ;ifSl .Tm, .V_'S, 1017 
 
 Troop et al. /•. Hart 7 S C. R., .".I'J ; •_' R. it ( i., .S.")l ; , 
 
 •2 C. L. T , '_'.')! .... •_'('. L. T., it.-) 1S0,()(),S,IL'2.S,1.-)S0 
 
 " '■. Menhants' Mar. Ins. Co iRl S. C. R., .'>0(; ; (i R. & ( i., ,T2.S ; 
 
 (i C. L. T., .SHt) . . . . (i C. L. T., 4.54 . . . . 72!) 
 
 Tupi.er, I'raser r Cas. Dig., '240 1 R. & ( i., .•r)4 S2, ()],■), 1 102 
 
 Union Hank /•. Whilnian et al. 
 
 !) C. L T., 21.'! 20 X. S. R., 194 ; 
 
 I S C. L. T., ,SS1.... 
 
 .... i.-s 
 
 '•. Souther !2 S. C. H., .ms 
 
 !»('. L. T., 210. 
 
 Walker, City r)f Halifax )■ Ca.s. Dig., itS 4 R. .'t (i., 'Ml '24, ;{77, (il7, t)2;{, 
 
 i ()27, 110(1, ltio4 
 
 Wall ice /•. llossoMi 2 S. C. R., 4SS 2 I.', vt C., 41!) !)1, .'tOO, (WO, 77^, 
 
 j 102;{ 
 
 '■, IJurkner ('as. Dig., list) .') R. & (;., ,"04 ! SS."), 1102 
 
 " '•. Kra.ser 2 S. C. R., r)22 2 I!. .V ('., :W7 .">12, S2ll 
 
 '•. O'l'oole iCas. Dig., 42:.' 4 R. .t (i., .•r)7.... 4(».S,7!M),10.S2, lU.S 
 
 2 R. IfiV., .-.4S ; j 
 
 I C. L. '!"., ;■..-.() 20(i, 212, 22-t, 74!) 
 
 20 X. S. H., .-)(!!). . . . : 20:{, 21.-), 2l.s, 
 
 22!», 421, ssd, 
 
 lo;)2, 1102 
 
 Uniei)orleil S2, 1 l(r2, IIO.S 
 
 1 R. & ( ;., M)2 i;tS, ,S,-).S, 12.Sii 
 
 Unreported l.SS. 12:i7 
 
 .-> R. vt C, .Sll lir>4, 12.S7 
 
 (i \l. & (;., .■>4!t .S74, !i;)(), lO!io 
 
 2 K. vt C, 47 S4I, l.".7ii 
 
 20 X. S. K., .•!47: 
 
 •1 C. L. T., .-)!» 1032, 1(W!) 
 
 .-) II. &(i., 207 741 
 
 (j U. ltd., 47S: 
 
 (1 C. L. T., .■).■)!) 4(f, 700. 711.-) 
 
 '• " " Cas. Dig., -ASH.. 
 
 Wardi'n, >tt!., D irtnioutli, <,»ueen /■.. . !) S. C. R., .-)0!). . 
 
 '•. '• .. US. C. R., 4.-).. 
 
 /•. " .. Cas. Dig., 28,-).. 
 
 Wat.son, < 'olehester r Cas. Dig.. <)8 . . . 
 
 Wehher /•. Cogswell 2 S. C. R.', 1.") . . 
 
 Wel.ster -•. Mutual Itelief Sueiely !) C. L. T., 2i:J.. 
 
 West /'. Seaman ( 'as. Dig., 21!) .. 
 
 We.-ilern Ass. Co. r. DouU el al [12 S.C.'R., 44(j. 
 
 West. Counties R'y Co. /■. W. iV A. 
 
 H'y Co 
 
 \\ hitman et al.. Union IJank '• 
 
 Cas. l)it,'.,:}!)l.. 
 OC. L. T., 2i:i. 
 
 Wilkins -•. ( ;e<lde3 .S S. C, R., 20:! 
 
 (In re Miinker'.s Island). 
 Windsor iS: Annapolis R'y Co., 
 
 The Western (_'ountie.s R'y Co, r.. Cas. Dig., .S!)l . . . 
 
 Wood /•. Ivssonct al !) S. C. R., 2;i!»; 
 
 4(;. L. T., IK) ..., 
 
 Woodworth, Diekie v 8 S. C. R., 192 .. . 
 
 (Kings County Kleetion Ca.se). 1 
 Woodworlh. et al. v. Diekie et al US. C. R., I'U . 
 
 Woodwoith, Landers »• 2 S. C. R., \')S . . 
 
 Young /'. Traoey 
 
 llo.S 
 
 20 X.S. R., 194 ; 
 
 8 C. L. T., SSI l.-.S 
 
 ;} u. & c, ;i()7 ',. . . .8t), 7.'>o, 1 144 
 
 no:? 
 
 4 R. S:r,., 27() ....I .■)4(), 017 
 
 4 R. iS:(i., 10.-) !)(».. ■)0() 
 
 7 R. ^; (i.,9e; 
 7C. L. T,, 144 
 2 11. & C, 84.. 
 
 .8,-), 24.-), 4;W 
 1'27 
 
 Cas. Dig., 82 5 R. it C, :?81 ...... X<r<, .-)28, 1017 
 
index: 
 
 ov 
 
 CASES IN THE DICIEST. 
 
 ('(II.IMN. 
 
 Al)l)ey, Aliuu, Tliu PJT.'J 
 
 Ahigiiil, Tlio 1 1->7, I'JO'-' 
 
 At'iidia Co-oiit'i'iition ISouii'ty c. Frascr. , 17.'{, H'J'.I 
 
 Autivo, Thu !»IU, 1 l-i4, I l-Jd 
 
 Adams /;. City of TIalifax (l-.Tt, 14(M) 
 
 " ('. t'losliy lOSO, l-_'i;{ 
 
 r. McFailaiio ;{U, lOU.-J 
 
 Aftoii, Tlif 1 L'H(i 
 
 A. H. W'ansD.i, 'Thu .'!(i7 
 
 A. J. iMuiikliii, Tlio WH 
 
 Alexaiidor, William, Tliu 12M( 
 
 Alliamhra, Tiie 1:2(1!) 
 
 Allan r. Caswell.. 3, 7, 17, li-i, -'4.S, ,-,ri.-,, 71!), 14-lS 
 
 " ('. McHuffoy 312, .'132, 7')7, Si>[ 
 
 " r. Peters !)41, 10^0, I.->!I2 
 
 Allen r. <ln\v 12!(:{ 
 
 Allianee Society of London r. Cliisliolm . . . .".107 
 
 Allison r. Desliiisay 2.j, 10.5, 114, 177 
 
 " r. (ioiidge 498 
 
 Alma, The 27, 12!I2 
 
 Almon r. I5ritisli Am. A.s.s. Co 7.'i'.l, !»4;i 
 
 " r. IJuscli 2.^."), 884 
 
 " r. Cock 208 
 
 " r. Cole Hat-lioi- Land Co. .'itO, 10C)2, l.jl") 
 
 " r. Fail Uank.s 114, WK^ 
 
 " ('. Foote 1112 
 
 " c. (!ray 9, 1.'>1, 074, 117lJ, 14!M 
 
 " r. llntt (i30 
 
 " t: I'rov. Wash. Ins. Co 72;{ 
 
 " I'. Tremiet 8(il, 1 117 
 
 " ('. Woodill 2r)!», 4:J7 
 
 Amanda, The 1121 
 
 American 'l"he U72, 1 122 
 
 Amei'o ('. Ainero 3G3, o'.tii 
 
 Anchor Mar. Ins. Co. c. CorlietL 742 
 
 " " i: Keith 7.'iS 
 
 Anderson r. Arehihald 213 
 
 " r. Ma.son.. 819, 820, 1108, 1410, 14,VJ 
 
 r. I'arker L'., 1 VJfi 
 
 r. .Suthuiland (1S2, I. "(74 
 
 r. Taylor 782, 1041 , 1420 
 
 Andrews r. Honnett ")I3 
 
 " i>. Landers 07, .52."), 1420 
 
 Angus V. Ihlietson 40.') 
 
 Ann, The 1297, 1298 
 
 Annand r. Hrennan 3."{7 
 
 Annand r. Merchants' liaidi CO, ir)7l 
 
 Annapolis, County of, r. W. & A. ll'y Co. I. '{2, 
 
 1157, 14,-)3, 14,"),-) 
 
 Annie M. Allen, The I28.S 
 
 Aunis V. Cook . .'.'.i, 114. 1474 
 
 Antigonish, Asse-ssment .School Kate, In re I.'IO, 
 
 302, 123.-), 1244, 14.53 
 
 Aral), The 1 128 
 
 Araniintha, The 1 124 
 
 Arclibold r. Mcr. Mar. Ins. Co 73(i, 933 
 
 COLUMN. 
 
 Archibald /'. iilois. .48:i, 491, 01,5, 042, 8.32, H44. 
 
 9112, U')82, 1,587, l.-'9.5 
 
 " r, Moiii.son 4.34, 007 
 
 Thos. and .loim. In le . .. .080, 1311 
 
 Architect, The 1287 
 
 Aniistioiij^' r. Trcfucy ,59, 003, 7!'2, 1(541 
 
 Ariinjd r. |)ij.'L;doii 57 
 
 Atiiole Lod;;c'/'. Williamson 392. 1021 
 
 Atkinson /-.Could 2.30, ,548 
 
 Atlantic, The 1293 
 
 .Attorney ( Icneral r, Avcrv 12.35 
 
 r. Axfoi'd 12.37 
 
 r. I'.uUock 1027 
 
 r. Flint 2S, ^M, f>01, 
 
 1143, 1275, 1.308 
 
 " r. Fraser 05/, 872, 1478 
 
 " »'. Her.icon 2.58, 1543 
 
 ('. McDonakl 87.3, 1451 
 
 r. I'age 994 
 
 .Vuguste Andre, The 1294 
 
 : Aura, The 839, 1270, 1279 
 
 : Austin r. I'.oone .3.57, 5.55, 004, 1222 
 
 I -Vvon Mar. Ins. Cii. r. IJarteaux 71t), 746 
 
 -Vylward r. Aylward 976 
 
 ' r.ackst.'om r. lick 122, S18, 1 172 
 
 iJaird r. Anderson .T51, 980, 1 1 18, 1220 
 
 liaker r. Ihown 727 
 
 " r. McFarlanc 31(i, 1247, 1457 
 
 " .". Rcail 201, 901 
 
 liaidv of v.. X. A. -•. r,cll 881, 12,54 
 
 /■. Ihidd 21(1, 1007, 1010, 1409 
 
 -•. Harvey 209, 1314 
 
 r. Keith ,520, 1048 
 
 " r. Strong 4,58 
 
 '•. Worrall 0S7, 8!)7 
 
 Hank of Liverpool r. Iligelow. . . . 182, 180, 18«> 
 
 512, 1148 
 
 In re 18.3. 1107, 13.33 
 
 I'.ank of Nova .Suotia, Assessment of , In re 127, 
 
 181,297, 309 
 
 r. IJar.ss 10,55, 1073 
 
 i\ Chipmaii, 40,51, 205, 
 
 220, 510, ,539, 794 
 
 lOOO, 1308 
 
 1'. Forbes 183, 1.321,1546 
 
 r. Forman 2.53,40.5,1,308, 
 
 1412, 1402 
 
 r. Haliburtou . . .842, 944, 
 
 978, 984 
 
 i\ McKerrow. .400, 1O06, 
 
 1109, 1424 
 
 r. Smith 187, 1372, 1444 
 
 liankof Yarmouth, In re,. 128, 182, 989, 14.52, 
 
 1455 
 Banks r. Wilson 743, 1462 
 
 56 
 
 1649 
 
1650 
 
 INDEX. 
 
 COMiMN. 
 
 Hiinneret, Hoitoii iuid Alliiiinhra TJTl 
 
 HiiniKMinaii r. iMillcitoii T.'iO, I'JIS, l;!l)l 
 
 Bar, Admission td, In ic I(i7, lO.'i! 
 
 Hai'uliiy V. 
 
 " V. 
 IJiirnaby v. 
 
 " ' V. 
 
 I-I-JS 
 I KM 
 l'_''_'S 
 
 7 IIS, 
 1-_'M 
 
 Diistan !I4, 
 
 I'loas ,•{•2(1, r)!l!», 
 
 Kalt ")•_'!», I 
 
 (ianlinur. . .,S4, ;i(M, ;!()(). .•i'.M, : 
 
 ift;i(;, I 
 
 Uariiliill V. IV'piiard I.V.!* 
 
 liariLstuad u. ( )"Xuill ; 1 7 
 
 Hariett ('. Jsulatod Hi.sk Ins. ('<i,707, KM '>, l."iO'J, 
 
 " ('. Siittis 71, !C_M, l,-)74 i 
 
 Harry, Catliorine, Kstatc of, In lu Kill' 
 
 Harss V. ISanii of Nova Scotia IHii, i '(>•_' j 
 
 " V. Strong .SIU, .''14, l.'iO!), i;U!» j 
 
 " r. Walhiue 4,V), 1(»47, l.');{7 | 
 
 Hai'toau.x v. ('ol>tM(uid Ins. C'o !.")()!) i 
 
 Itartlett v. I'lalt I fidti | 
 
 Kiirto r. Morris 44.">, Ti.SO, .'mI 
 
 Barton v. Baldwin oil."), !)((((, 1(M)l', 1'iO:{ 
 
 IJalos i\ CiaytiioMiu ,5(1, 401, 7SS, l,VJi>, \XiS 
 
 Hatli V. Di'iniison •.',\S, 4(l'2, 5(i4, 787 
 
 Batli Estate, In ic SO, •_'47, oKi, .'(IS, 1 l.TJ, 
 
 I KM, 14!»4 
 
 Battleman v. McKunziu ?>'J, !)27, I."i0!» 
 
 Bauei' V. (innn !)74, I0S4 
 
 " Jolni, In ic (i74 
 
 Beales v. Canada Fire & Mar. Tns. Vo . .7(!.S, !>4!» 
 
 Beamish v. City of Halifa.\ ti.VJ, |(M»S 
 
 " ('. Kaulhauk S'_', 1 Mti, Ki.'U I 
 
 (In re Will I>eami.->h Murdork). i 
 
 Beaver, 'I'lie !)7'2 
 
 Beckwith v. Lordly <(S2 
 
 Be«gs r. McDonald 184, 11 Id, 1 KSfi 
 
 Belcher*. International Life Ass. Soc'y ....713 
 
 Bell I'. Brown 387, r)37, r)(>7,"!)0!l, 1 18(! 
 
 " V. Carnithers 482, 087 
 
 Bella Mudge, The 1278, 1280 
 
 Belle, The 1127 
 
 Belloni v. Mnrphy 821, 1410 
 
 " V. Sydney & Lonislrtirg R'y ('o.3S0, 7(>1, 
 
 1044, l(i()3, i:!!!"), 1471 
 
 Benjamin v. Campbell. 2r>, (i37, 7tM, 1010, lOtiti 
 
 V. To))in !l!)!) 
 
 Bennett v. Mnrray 103, 1 !(>(• 
 
 Bent V. Banks ... 772 
 
 " V. McDougall S2(i, 111)4 
 
 Bernmda, The 1, 12, 13, 112(i, 1120, 1348, V.\M, 
 
 1378 
 
 Berry v. ]5erry 828, 1340, 137ti ] 
 
 Bertram v. Bonham .")7!>, lol 8 
 
 " V. Herriman 01, ir>3!t 
 
 Betsy, Sliip, The I2(i,*) 
 
 Benlair v. (iilliatt . (i(i7, 78(1 \ 
 
 Bigelow V. Blaiklouk 802 i 
 
 " V. Norton 4r)3, 831, iri82 
 
 " V. Rand 20, 1210 i 
 
 Billings V. Rust 842 
 
 Bishop Dyke, In re 130, 201, 307, 1 ")22 
 
 Bissett V. Cordeaux 1(J02 
 
 Black V. Barss 2r)0, 101 T) 
 
 " Estate .lames W., In re 014, (140 
 
 " V. (iesner "203, 300, (KM), 12.32 
 
 " V Hallitmrton 1 281 
 
 " V. Murray 030, 01 1 
 
 " v. Sawy 148,1.300,1401 
 
 " V. Stewart 1037 
 
 Blair v. Sovereign Fire Ins. Co 000 
 
 Blake v. Stewart 1 17, 342, aOO, S7S 
 
 Blauchard v. W. & A. R'y Co 288, 42.") 
 
 Blethen v. (iardner 580, 1283 
 
 ron-M.v. 
 
 Bligh r. Darliiii,' .530, 1 .")7."> 
 
 " V. Ki'nny 1 KM) 
 
 Bli.ss V. .lltiia Life Ins. Co 712, 027 
 
 " V. Dickii! .-.74, ll.'Si) 
 
 r.lois V. Riciiards O.'., 280 
 
 Boak V. Mcr. Mar. Ins Co 82, .").'>2, 730, 1 102 
 
 Boliakcrr. Mor.se .'i04, 030, (ill, 1028, l,-.2(i, I.5;i0 
 
 Bond f. Ilutcliinson 101,013 
 
 Boml r. Ives 770, 004 
 
 Bonnett ('. Cliesley 00, .'iSO 
 
 ('. Ritchie 240, 12.51 
 
 Borden v. Chiuchill. .'{.'{7 
 
 BoKsoni ('. ('ooiid)cs 07, 1041 
 
 Boudrot r. Donovan 1020 
 
 liontilier r. Ilaishman 801 
 
 /'. Knock AS, 401, Oil, 027 
 
 Bowen I'. Slieais I .-).")4 
 
 " r. Troop .-m4, 041 
 
 Bower, .John, In re 1 148 
 
 Boweis v. Ilutcliinson 450, 1012, 1408 
 
 I'lowmanville Macii. Co. r. Dmnpster 1110, 1220 
 
 Boyd i\ Millctt .';I4, 4.34 
 
 Biady v. Bell .583, 774, 121 1 
 
 I'.iadiey r. McLean 17, 378, KMIO, 14S5 
 
 Braille, Estate Sojijiia, In re 404, 500, 1 1.35, 
 
 l.37(i, 1402 
 
 Rremner l'. Wallace 1024, 1 188 
 
 P.ieiinan ?,\ .lack 1 580 
 
 Brciinoek i\ Kraser .... 543, 007 
 
 liiett I'. Lovett 225 
 
 Biittain c. I'aiker 055, 1545 
 
 Brooktield i\ Symes (iO, 707 
 
 Brown V. Boole 531, 8.30, 10.54, 1382, 1.385 
 
 " V. Chcsley 840 
 
 " V. If arri.s 227 
 
 " ?'. I'cariiian (i04, 773 
 
 V. Wallace .380, lOIS 
 
 V. W. .\; A. R"y Co.. 120, 11.54, 1415, 1480 
 
 Brundige v. Dclaiiey 100, 331, .584 
 
 " V. Tlioiii))son 570, 1472 
 
 Brush V. .Etna Ins. Co 704, 001 
 
 Bryson v. ( liahani 848, 1.S54 
 
 Buckley, David, In re 004, 1320 
 
 Bunkers Island. In re 80, 75(J, 1 144 
 
 Burkner >: Wallace 7(), .385, 10.50, I 102 
 
 Burnham v. Davison 0()3, 1484, 1.5.58 
 
 Burns /'. .loius .507 
 
 " V. Rickards 81, .382, 1004, 1120 
 
 " )'. Snow 211 
 
 I'.urritt v. llalticld 1030, 14.34, 1441 
 
 Buirowes v. Isnor 500, 570, 775, II. '{8, 1178 
 
 Burrows v. Isener 555, 1040, 1440 
 
 Burton ('. liurns 77, 1007, 1.304, 1510 
 
 Butler 1). Evans 220, 002 
 
 " i\ Merchants' Mar. Ins Co 722 
 
 ( 'afTery c. Cameron 050 
 
 Cahoon V. Morrow .38, 1200, 1306 
 
 Cain V. Uhlman 538, 0.34, 1.540 
 
 Caldwell 1). Kinsman 440, 7(i(), 10()0, 
 
 1177, 1.3.37, 1345, 1.301, 1303 
 Caldwell v. Stadaeona Eire & Life Ins. Co. 42, 
 
 000, 700, 003, 1.501 
 
 Cambridge, The 12.50, 1284 
 
 Cameron, Assessment of, In re 207, 12.39 
 
 t). Cameron 41,100.5,1102 
 
 " V. McDonald 1.503 
 
 " c. McDonnell 408 
 
 V. McLean 1244, 1433, IfiOO 
 
 Cameron's Circus, In re 7, 1055, 1072, 1407 
 
 Campbell «. ^Etna Ins. Co 700 
 
INDEX. 
 
 1G51 
 
 I'Ol.l'MX. 
 
 ('ain[ilK'll ('. Ciiniiilii Ins, Union T-l 
 
 -', (icnciiil Mining An.<(iij"ii. . ,,S(i(l, il'J'i 
 
 >'. lliiUiljiMldn IMS ' 
 
 r. llunilcrsdn ;i-'11, I'J'JS 
 
 " t'. .NK'Caskcll ;U!), l-.'-J7 
 
 " V. McisMiu: :u;{, KHKs, i;{70 
 
 " ('. McKinnon I.">1.S 
 
 " ('. Vi.'iiilon mm;, |((II,I.">7.S 
 
 Cinii ('. Ini|)i'iiiil Fire Ins. Co ."iSS, 702 
 
 ( unl(;ilniiy, 'I'Ik; 
 
 Ciipo Hreliin Ci 
 
 . 1L".)I 
 I4S0 
 
 lll.V) 
 
 1 •-'(;,•! 
 
 I .-4-J 
 
 mill 
 
 Anicit'LiiMcnt of, In n^ . . . 
 ,V), S(l(», Slid, I'JOO. l.'flO, 
 
 ('a|R' IJivton Co., Ltd., i\ Dodil .•{'.i;{, 7.')S 
 
 Cii|k: IJiclon Co., Mil., c. Cisliornc Xil. (>.")(», l()."iS 
 Cii|K' IJicton, 'riio l.slunil of, In ii: ....(170, l.'17t 
 
 ( iiid /•. Wciks (m, ;{il I 
 
 ( 'lU'lottii, 'I'Ik^ 
 
 CiUMiy I'. I'lialon 'J'ti 
 
 ( 'iur /'. ( 'aioy 'J.'iS 
 
 ('iuri},'aii ('. Ciiirij^iUi .").'i4, iH4, IMS, Kl.'l^ 
 
 Ciiity r. I'lonnull. . . 10(i."), KKSS, llDl, l'_'."i:i, I.Mli; 
 Caivull. [n Hi, Kx partu (UitUlon, 1S!», .'lOS, ,')7!t. 
 
 7!ts, \:\Jt:i 
 
 " i\ Wallace S4S, 1."m4 
 
 Casey ('. Arciiil.ald 17!l, U;!4, il-JI 
 
 Chaniliiirs t\ ilimlcr 7.")4, 7li4, HIS!) 
 
 CiiandltT, KstaU' of. In ro 2').'), SilO 
 
 Chailcs Foilus, 'I'Ik' r-!>4 
 
 Cliaso, I'lit! r-'(i!» 
 
 Ciiosluy I'. I'xnuR'tt 'Ai), 779, lOSo, 1171 
 
 " i'. ( iava/a 71 
 
 " c. (liassi.i 77, l'J4, Sll 1474 
 
 " r. Mnrdock •''A', oCiS, lalo 
 
 Chipniaii v. ( iava/a. .. .!)4, !»37, 104(i. lOSl, ITiilu' 
 ('. Kitciiic . . 21.'), i)!t4, !)!ll), lOO.'), Hrj-' 
 
 " c Sliaw 1(11 (i 
 
 Cliisliolni V. Cliisholni ■_';!() 
 
 " r. Kenny L'.V), S'.)l 
 
 " V. Maelioniiell I4(i(), l(i-J!t 
 
 V. McHonald 4!I2, .")71, 1 140, l.",77, l.'iSS 
 
 Christ Ciiurcli, Darlnioiilli, In re l,"iS4 
 
 Christie v. 'I'honias 10r)7, ir)7S 
 
 Chnreh i\ Chi'istie tilJ.") 
 
 (.'Iiureh Wardens, Andiorst, (,'. Davison 3S4, ").")(; 
 " [''alinoiitli, V. Vaughan.. . '<U, 
 
 H)-2-2, !,■>.-.!» 
 " Tarrshoro, r. King. . . !)!), -SiKi 
 
 City of Petersburg, The '20, 802, 127.S, 12!IS, 
 
 1371 
 
 Clarke v. Fiillerton 423, 588, (504, ()92, !);U, 
 
 1407, 1468, ir)73 
 
 Clarke, James, Estate of, In re 1 (122 
 
 Clementine, The 801, 1271 
 
 Clyde Coal & Mining Co,, Jn re . . .33, 2i)l, 1040 
 
 Clyde, The !»72, 1 128 
 
 C()l)b V. Turner 128 1 , 1 3!).") 
 
 Cobciiuid Mar. Ins. Co. v. Barteau.x 744, 1222, 
 
 1278 
 
 Cochran v. Boll ,558, 10G2, 1252, 1.502 
 
 " V. Chipman 523, 54!), (i8!», 1591 
 
 " V. Duncan 3, 1.378 
 
 " V. Lareoni 04, 811, 1417 
 
 Cock V. Bliss 104, 170, 383 
 
 Cogswell V. Craham 912, 1170, 1348, 1488 
 
 " V. O'Connor 4.30, 4.39 
 
 Colchester v. Watson 374, 930, lOiK) 
 
 Coleman v. Duulap 203, 1254 
 
 Collie V. Bell 1038, 1210 
 
 t. Moren. . . .98, 1040, 1357, 1359, 1519 
 
 Collins V. Barss 1243 
 
 " V. Doherty 490 
 
 728, 732 
 
 (OM'MX. 
 
 Collins i: Held 1.53, 000, 840, 884, 1.380 
 
 " r. .Story 405, 914, 1381 
 
 Colonial IJank -•. Kxehaiige Hank 185, 879 
 
 Com IJank of Windsor v. lieekuilh. . .542, 7.54, 
 
 1075, 1.5.33 
 
 r. IJorden 209, !».57 
 
 Conuau 7: Leiilanc 141.3, 1,551, H',00 
 
 Condon ;•. Davis 480 
 
 Confederal ion Life Ass. Co, v. O'Donnell. . . .83, 
 
 .5.38, 714, 715, 1515 
 
 Coidon r'.Citv Railroad Co 024, 1399, 1400 
 
 7'. Coiinoljv 033, 921, 1202 
 
 Connolly, ICstale i)f, In re 399, 1141 
 
 Cook c' Davidson 41, 1081 
 
 " /•. MeLeod 9!I3, 1207 
 
 " / . .Sninner 709, 1053 
 
 Coolan /•. .McLean 03,811,1417 
 
 Coopci- r. Mylne 7.52, 789, 1005 
 
 Coi)p i: Mttcr 875, !I47, 9.50, 907 
 
 CorlicU ;'. Anchor .Mar. Ins, Co 742 
 
 '• r. Corbclt 441 
 
 " r. Mi'Ken/ie 730 
 
 " r. ODcIl 275, 304, 1.329, 14.30 
 
 " r. I'rov. Wasli. his. Co 724 
 
 " r. llobinson 15, 1100 
 
 " r. .Slronach 1217 
 
 Conb'lia and Ospicy, The 423, 1208, 1.308 
 
 Cornelius r. L.irtoii 820, 1.3.50, 1473, 1.549 
 
 Cosey /-. Williams 388, 10.50 
 
 Cossack. Tiio 1130 
 
 Cossilt r. Cook 197 
 
 Cos.snrin r. Biit. Am. Ins. Co. \ 
 
 " /•• West J ■• 
 
 ( 'ostin r. ('hapi)ell (i09, 1555 
 
 ( 'oulson r. Saiiuster 804, 141 1 
 
 ( 'owling r. LeCain .'i92, !).50 
 
 ( 'ox /'. Crocker 10,50, 1,507 
 
 " r. Klliott 300 
 
 " r. C mm.,. 122, 423, .542, 7()2, 774, i).5.5,ll7l 
 
 " r. Will 1.51)4, 1.595 
 
 ( 'oxetter r. Hoiiisby 945, 15<»3 
 
 Co/ens r. Wier. . . .' 971, 1020, 1024 
 
 Crane r. .lacobs 1108, 1,360 
 
 Crawley r. Anderson , ,,33, ,305, 1.302, 14.59, 1475 
 
 ( 'reamer /•. Kogan 150.3 
 
 Cleelman v. MitMiiileii 101 
 
 Creighton i\ Chittick .... 0!)0, 1009, 1.328, 1.389 
 
 L\ Cook 382, 1439 
 
 " V. Daniels 0, 10, 389, 1070, 1255, 
 
 14.38, 1439 
 
 In re 081, 703, 1323 
 
 " V. .lenkhis 048, 1509 
 
 " V. Kuhn 524 
 
 I'. Lindsay 75, 7SK), 1027, 1245 
 
 " V. Merehants' Hank.. 672, 08.3, 1.398 
 
 V. .Moore 908, 1062 
 
 V. .Spimiey 51, 901, 1083, 1529, 1535 
 
 " V. Union 'Mar. Ins. Co 719 
 
 Crewe-Read y. County of Cape Breton 371, 
 
 865, 1201, 1309 
 
 Cripjis ('. Marriot .389 
 
 Critlendon v. Municipality of (iuysboro . . . 1069 
 
 Crosskill V. Allison 1021, 1044, 1065 
 
 V. Morning Herald, The 456, 995 
 
 Croueher v. (!unn 1027, 1214, 1246 
 
 Crowe, Assessment of. In re 58, 139, 12.59, 1481 
 
 " V. Lowden 479, 522, 826 
 
 " V. McCurdy .... 265, 400, 497, 789, 1524 
 
 Crowell V. (ieddes 730 
 
 " V. Jones 734 
 
 Cuba, The 1128 
 
1652 
 
 INDEX. 
 
 CulljCTt V. MiKcell SSd, IC.Ci, )(cj:>, \-*-2\) 
 
 Cuinl)orlinul, 'I'liistco.s of I'liMic I'lippcity 
 
 for, V. Kerr l."p,S(i 
 
 CiiiiiiiiiiigH c. r>i(.wii .'iSS, ;t!)4, 1 1 44, niili 
 
 " r. (iliuluiii s;!, 7,sl, 1(17(1 
 
 t'uiuml i: Itviiii' 4.')(», 4!lt, S4!l 
 
 C'liiiiiiiiglmiu V. Ifiidliy I.'iCm 
 
 " r. MiilioiK'y '2i:t 
 
 " r. Mof.so •_';i,S, l.VJd 
 
 ('urlew, Tlie 1 l.'io, l.TiT, ],'i.")S 
 
 (-'urcy V. r.t!('iiis M, 77, !l'-', SHi, 1 !!)(> 
 
 Cdiwiii 0. \V. i\., A. R'y Co L'ss, 1 1.'")7 
 
 C'utlip?'. Ciililwi'll (Ids, l-_'.".s, ll'Jo 
 
 " 7J. Cook I Kks 
 
 Cultfii V. McFarliiiie :{7. l-'!l!t, l.'id.'!, I.'fdd, I;!(i7 
 " V. SU'iiliiMis (i!) ! 
 
 Diilo -'. 'I'lie " Volotity". SO], |-J7."), l-".Mi, l.'tOri, 
 
 l;{(i,S 
 
 Diiluy V. Kill lull iV_'4 
 
 Diiiiiel V. Vii'tli l(i'i-_' 
 
 Darling v. (iillii's ■_'17, Kc.'s, i;,;u 
 
 " V. MiLi'Uiui I(»!l,s 
 
 " V. .MuLrllarid !»,s;{ 
 
 Diirt, Tin; .V), !ll(i, 1 124, I l-.'(i, l;i;{(i, I.TiS 
 
 Dartiiioiitli School, AssommiiuiiI of, Jii vv. . . . . \;i~, 
 
 1 •.';!■-) 
 
 Davidson v. Lawrence '24, '.Ui'> 124(), U.YS 
 
 Davison v. lienjaniin .■)4r>, (iOli, (iOS 
 
 " V. Ilurnliani I.'m!) 
 
 " V. KiuNMian 2(!2 
 
 " V. Mtdcahy ,S41, 1(121 
 
 Delaney t: Hall 2l;{ 
 
 Diilaj) v. Foster 114 
 
 Delissor 7k I'rov. Ins. C(j 7'{."), !)(i2 
 
 Deuuison v. Dill ;{.').'{, l();{(i 
 
 V. (Java/a 1 1!)1, l.'W.") 
 
 " z: .lack 74, :HH 
 
 DesBarres v. \le\\ !J."il, l(i.S7, 1,V>7 
 
 " V. Laniiry lOS, ;W4 
 
 V. Sl)ey .... 484, 844, [)M, 1121 ,1414 
 
 " V. 'i'reuiainc 4.")!t 
 
 Desmond v. Fairhanks 42;j, l."i4!t 
 
 Devers v. (Javaza 2!t(i 
 
 Devine v. McKenzie 7(i() 
 
 Deuar v. Mm]iliy 70, 1420 
 
 " v. I'eanlon 041, l.VJ.S 
 
 DeWolf V. Holmes 7(>H 
 
 " V. Noilly 078, 774, 1,S24 
 
 " V. Niel ;{2, ITidO 
 
 " V. I'ineo ... 117 
 
 " V. Puneluud 1(),'{:(, 10;{8, l.'lOl, 
 
 1457, l.')98 
 
 Diamond v. Municipality of East Hants 373 
 
 Dickie ik Klenkliorn 227, 877 
 
 i>. DeWolfe 3,S2 
 
 r. Mor. iMar. Ins. Co 717, 1114 
 
 " ('. .Spanks 8;i8 
 
 " (,'. Woodworlli (Kings Co. Election Case) 
 
 90, .■>()(•) 
 
 " V. Woodworth 85, 244, 432 
 
 Dickson r. Kearney (i54, 1387, KKCi 
 
 Dill r. Wilkins 2."i0, 524, 035, 0.54 
 
 Diocesan Synod r. O'Brien 5S2, 8<)0 
 
 Doane v. MeKenny 41, 420, 077, 001 , 1077, 
 
 1311, 154(i 
 
 Dobsen i\ McDonald 74 
 
 DobsoJi V. McKay 1 102 
 
 Dodge II. Halifax Gas Co 0(12 
 
 " V. 'i unier 3t,Q, 1231, 1307 
 
 " V. W. & A. R'y Co 2S(), 42ft, lOKi 
 
 t'OHMN. 
 
 Dodsoii r. Crand Trimk R'y Co 284, ll5fi, 
 
 1281, 1300 
 
 Dogerty r. I'owcr 3(iO, 001, 121,'') 
 
 I'oggctI r. 'IVeniiiin 312 
 
 Doniiiiiiiii I'll. Co. ('. .Silver 401 
 
 Doiiiville r. Davies lilt), 222, 000 
 
 DoMolicec. Borden 305, 1IHI3 
 
 DoiKivan r. .Maliar 022, 78(! 
 
 DooKy, Mstate of, In re 1031 
 
 Doran r. Chandlers 43, OUO, 1352, 1523 
 
 Doliitla.s 1: llawes 1070, 1583 
 
 D.iiiil ('. Cariiiicliael 4!)7, 40S, 500, ."lOI, ri(l2 
 
 " r. Fire Ins. Co 008 
 
 " i\ Linton 1.55, 440 
 
 " r. .Mellreith 152, 8.57 
 
 " r. Western .\.ss. Co 30, 700, 704 
 
 Doyle r. (iallanl 310, 402 
 
 " 1: 'rimniins .302, 10,53, 1305 
 
 DrnnLniond r. Ciirrilt OOO, l(*74, iriO(J 
 
 Dncacn r. Dmme 1004, 10,50, |5(i7 
 
 Dudley r. .hines 2, 8, 30, 0,5, 1044 
 
 Dull'iis r. Creigliton 1250 
 
 " ('. .MeI.earn 210 
 
 Dunn i\ Miller 004 
 
 Dunphy ('. Wallace 50:;. 15,S2 
 
 Dmkce r. Cox 084, 1313, I5(i8 
 
 " V. Flint 141, 235 
 
 Duvar i\ Biirkner 335, 031 
 
 Dwyei' i\ ( ia.sper 043 
 
 Eagar i\ Carey 58, 200, 1417 
 
 Kastern Development Co. ti. McKay 1051, 1433 
 
 Eaton r. Camphell 108 
 
 Eaton c. Rone 07, 1004 
 
 " and Stewart, Reference between. In re OS, 
 
 7()5 
 " ('. Wcatherbe. . . .,523, 0.37, 007, 000, lOfiO, 
 
 1503 
 
 " V. Wright 34(), .520 
 
 Eaves v. 1 )arling 303, 1 423 
 
 Eoonomy, The 018, 072, 1127, 13,50 
 
 Edith Wier, The 1272 
 
 l'',isenhauer (•. Frov. AVasli. Ins. Co 740 
 
 Kldorado Union .Store Co., In re 7()2, 1 100, 
 
 1332 
 
 Elizabeth, The 1 2(i5 
 
 Klliott V. Ladd 20, 384, 018, 0.50 
 
 " r. .McDonald ,300, 1004 
 
 v. Smith 028, 1.544 
 
 Ellis V. Cohinial Market Co.... 481, 1072, 1.505 
 
 Ells V. Black 438, 473, 1000 
 
 " v. Ells 570, 787, 835, 1370, 1387 
 
 E^mbree u. 1 )i.xon 1587 
 
 " V. Nodes .. 404, 1030, 10.57, 1,501, 15,53 
 
 " V. Wood 423, 030, 030, 902, 1530 
 
 Knmia, Tlie 12S0 
 
 Ennnes v. Taylor 1003 
 
 Kngley v. Mc'llreith 831, 021 
 
 Ernst V Waterman 493, 1018 
 
 Esson ('. ( 'anipliell 223 
 
 " V. Maylierry 204, 0(18, 1242, 1540 
 
 " c. Wood 546, 017 
 
 Etter V. Copp 52, .531, 535, 93(j 
 
 Eimiee, The 1127 
 
 Kuphemia. The 1124 
 
 Eureka Woollen .Mills Co. v. Moss 85, 045 
 
 Evans y. City of Halifax 517, 620, 1003 
 
 " V. Foster 92, 219, 683, 10(75, 1604 
 
 " Estate of.In re, Exparte Falconer 6ti5, 1323 
 
 " v. Ross 420, 910, 1089, 1 1 90 
 
 " V. Stadacona Ins. Co 098 
 
INDEX. 
 
 1G69 
 
 COMMN. 
 
 Kvoiis r. City of Miilifax (Wd, irt'Ki, ltil)4 
 
 Kwiiil r. Mci'iliiiiits' Mar. Ins. Co 714 
 
 Kxi'lian^'i! Hank c. lllcllicn \m, I IS I 
 
 " " /•. ISrowii 1,")S, 2IS, I02!(, 1.">()S, 
 
 l.-.4:t 
 
 Kx|K'<litinii, 'I'lic W'M 
 
 KxpivsH, Tlic 1172, 1 I'j;}, 12(14, l.-.4,S 
 
 Fader r. .Smith (HIS, I-J4-J 
 
 COM' MM, 
 
 KrasiT r. .McAitliur Km, 1(194, 1482, \rm 
 
 /'. Mci'aiiiiif,'!' s:w 
 
 c. MrLcoil L';!, ;U!), MTC, i4;w 
 
 c. Morrow I'J, i:t(i4 
 
 " ami I'aini, In re 1(11,440. 1047. KUM, l.-.III 
 
 c. Salii'r .Tiit, I'JIS, KKK) 
 
 " r. Town of New (!lasj,'o\v l.'(|,'_'!tS 
 
 " /•■ rni.p.r «•_>, (U.-), 1102 
 
 " /•. Wallace r>\-2, S'J.-., Il'l-J 
 
 l''re(leriek .\uj,'Us1uh, 'I'lie I I'-'S 
 
 I'VirUanks c. Creijiliton . '.)4!t, KHii), l.'is!*, l.i.'U Kieeman /•. .Mien 4S» 
 
 c. Ilartshorne 107;-), l.Vi'JJ " r. 1 larriiij,'ton 1 UKI, 1.S40, 1447 
 
 c. Kulin .-)•_>:!, 1. 'ISO ! " c. Moran 1041 
 
 r. Holes ;W(1, 47t'>, 1447 ; " )■. Morion l.'Wd, i;w7, l.^W 
 
 " r. Union Mar. Ins. Co 71;"., !)'.i7 ! Fremli ,■. Wallace 017, IMt.') 
 
 I'Vlooiiei' r. .Sawyei' l.-.'i, .■)(•.(», (!«,'!. !I4(!, ' Friends" .Adventure, Tlie. 1)15, 1 I.SO, KlOl. l.'?47, 
 
 i.^sH, i,M»;i< i;f.')4, 1 ;(.■).'>, i;t.")() 
 
 Fame, The !»!.">, 1 i;!l, i;i,'i;i, I. "MS | l.'rost r. Mrennan 'J'Jl', KKW 
 
 Fanny and tliu l'I<(iif,'hlMiv 1 l.'U ' Fnllertoii i: llrumlij^'e 448, i'i^)ti 
 
 Farrell r. .McLaren '. :i47, fi.'U, 8(;2 | " c. ( 'liai.nian 'il'O, iU^ 
 
 Fawson c. Noonan .S('>0, !)7!t " r. Ililiiison 518, 907 
 
 Felch r. Ilitchie L'.W, ;{.•{() 
 
 Fenerty r. Comity of Halifax 13'_', 1 l.V!, 
 
 Fiilmoro r. Voiing l'-23 
 
 l''urieiisu. La 1 1 2f) 
 
 181)8 I Furlong r. Cooper 1091 
 
 Fergii.><oii i\ Uydi! 1 ."iii7 ! 
 
 " r. In'man !)!).") I (!allai;her ,: Tavlor 746 
 
 Fielding r. Aekerly 44!), 144.'i { ( lallilnw ,■. Peterson 279, .'{21, 791, 816 
 
 " r. Moll 807 I ( lamniell, F.state of. In re 1629 
 
 l'"isli r. l''ra.sor ]()'X^, ITi.^S | (lannnon c. .lodrey 445, 476 
 
 Fisher r. Anderson KL'Ci ; ( lardner r. Home & Col. Ass. Co 094 
 
 •' c. Archiliald 20-_', .■..'!(; " r. Ilorne 1610 
 
 " r. Hishop 144, 234, 1 17(i, 1491 1 " r. I'arr 755, 818, 1418, 1488 
 
 Fiteh r. Cnrrie S91), i;"iS5 ' ( larhatt r. ( Jooseley 2)i2, 159(i 
 
 Fit/ranilolpli r. .Slianly l.-.O. KM, .")2() ' Carland r. Curry 9S8, l.')52 
 
 Fleiger r. Taylor .5(10, 7'50, 771, 107(1 (larvie ,: I'eliny 999 
 
 Fleming r. Hill (j.'J.'i, 8."i9 i ( iaslonguay r. .Soveieign Fiii^ Ins. (V). 702, 1009 
 
 (••West 514 I (;ates r. Diividson 5.54,944,1564 
 
 Fletcher /•. Cliisliolm CO, .'{()(i i (lavaza r. I'.lack 175, 251, 5,5(i, 1251, 1.504 
 
 Flight, The I I2(i, 1 2(iti | ( iava/.a >: Neily 2:12, 1082 
 
 l''lora, The 801, 127.">, 1286 i (ieiioral Mining .\ss"n r. X'ictoria Coal Mining 
 
 Fly, The 1 124 I Co 963, 1074 
 
 Fo'ote L\ Foote 1621 ' (ienoa. The 1268 
 
 Ford r. F.iown .S4, 1004 | ( ieoige. The 972 
 
 " V. Miles (;7() (ierroir r, Di.kson 1 109 
 
 Forrest v. Almnn 672, 951 ' ( lesner r. Halifax (ias Co 605, 868, 1.582 
 
 " r. Miiir 141, (!7I i ( iil.son c. Kiley :!4, 1006, 1467 
 
 Forsytll r. JJell 51,S, 1221 Cidney r. Titiis 1-57 
 
 V. Forsyth 202, ;i9.S, l.5(;S ( lillis V. Camiiliell. . .47, .^'82, 4.S2, .'=:29, 543, 9.57, 
 
 " ?J. Critliii 5S5, S4(i, 1.5.54 i 1046,1595 
 
 " V. Laurence 21 ! , 1019, 1,5:{1 i " c. Town of I'icton 372,1417 
 
 " /'. Sutherland 449 | " r. Trustees of School .Seoti<m 9^ 998 
 
 V. Symoiids 8.5, 17:?, 10S2 ( ;ilm<)ie i: 1 )ewar '.. .525, 637 
 
 Foster IK Chamliers 91 i Ciljiiii r. SawycM- 042, I5'S2 
 
 " V. Foster 494 i (iisl.orne r. ciipc Breton Co (•.55,797, 1062, 1093 
 
 " V. Fowler . . 156, 1,57, 4.55, 55.'S, 938, 1.595, \ ( iladiator. The 1200 
 
 1601 I (ilalwin r. Cunimings 8;i, 1070 
 
 " V. Lamie 879, 9.31, 1049, 1.50.^, 1566 ( [odet r. LeI'.lane 381, 977 
 
 " V. R.xmie ;tO, (;()7, 132.T , (J(.dkiii r. I'.eech 585, 677, 1009, 1315 
 
 Fowlo V Smith 424, 9.T2 ( Jold MJTiing -Areas, Wavcrley, In re 870 
 
 Fowler V. Hordeii 242, 1281 ; (iordoii r (iordon 1296, 1:150. 13(i7 
 
 " V. FMerkin 149 i (lough r Morton 576, 809, 1.396 
 
 Foyle V. Hingham 983 (Umld r. Could 803 
 
 Friiser v. Adams 671, 896 | " v. MeCregor. . .43.3, .529, 908, 1175, 1489, 
 
 " w. Bruce 240, 96.5, 1(J72, 1192, 1506 1513 
 
 '• V. Cameron 2(i;?, 940 : (iourley i: Carter 1001, 1500 
 
 " V. Fraser 778, 1074 | (iovernors Kings College v. McDonald 371, 
 
 " w. H. & C. B. R'y Co KJS I 607,823 
 
 " Simon, In re ... .82, 615, 755, 800, 1419, ; (iow i: Allen 1293 
 
 1486, '487 (iraluim '•. Bell 1.344 
 
 " V. .Jenkins 120, .562, 836, 1495, 1540 | " r. Bonk .551 , 780 
 
 " V. Kirk 263, 399 " v. Chiaholm 1.55, 443 
 
1654 
 
 INDEX. 
 
 finiham v. Onilmin 103, 108, lilli'. I IO(i 
 
 " 71. I.ii|.iiiic 7<l, Mil 
 
 " unci McKny, In vo '.'(Ill, (is."., !IS(( 
 
 " 7'. Miinii^'li'un i:i(i, l-_':t!l 
 
 Grant t. Cit'clinan ilT'.l 
 
 " Kstiiti^ of. In re 1,". I, (i(!l. (i(i."i 
 
 " T. Hull 1(14 
 
 " 71. .Idhnsdn .'I.VJ, .")"- 
 
 " V. IVnUiction Ins. Co •_>.">, illi.'), l.'CtS 
 
 " V. HdlKirtson.-.'H, rm, ll!l."), li'sJ, i;{(17, 
 
 I17(» 
 
 " 71, Siinjisfin Ki'J, .Vil 
 
 " 7', Town of N(.'W (llusij;o\v ."t"- 
 
 " r^ WhcuitT .. . .... (is.-., S!l(i, 1(177 
 
 firiiy 7'. MuKcfn ;t!l.-), 7Sl, Kill,"., 1 MMI 
 
 " V. .Stt'd ("<>. of ("iiniulii . ,47, ."UO, ;iKi, 404, 
 
 .'.,■.(1, sr.!!, !i;!(i, |(l.->7 
 
 " V. Whitman '.'(I.'}, •.mi, 'M), I •-':(•_' 
 
 Greon v. Hai'o !l(i.S 
 
 (irounticM v. Y(.ike ()7.'{ 
 
 Gregory r. Ciiii. Iniprovom't Co. (i.').S, lOOD, 1 !.■)') 
 r. H. fi C. li. Il'v .t Colli Co. . .3;i!t, 7(>(), 
 102(i, l(»95, 1(199, 11, -)0, i;ill, l,-)0'_', 15(1(1 
 
 Griffin r. Taylor CiVl 
 
 Grindluy r. hlakie 454, 7'S5, 1180, MiH 
 
 Grotto r. Fari.sh lO.Sl, 1500 
 
 Guililfonl r. Anj.;lo-Frenoh S.S. Co..Sii9, 7,5S.lJ7(i 
 
 Gunn r. Vox 122, 42;t, .542, 775, 'M5, 1 171 
 
 Guatava, TIhi ll.Tl 
 
 Guy.sl.oro, Miniicii.ality of, 1: Munii'i|iality 
 
 of .St. .Mary's .•i7C., 1 iri2 
 
 Hailly r. .Shornian .'iSS, 477, 1(102 
 
 Hagarty v. Vyym (i20, (12(1, l.-),-)l, KJOl 
 
 Halil.urton c. 1 )u\V(.lfu 141 
 
 " r. iralil.mlon UUtl 
 
 Halifax Banking Co. r. ( iillis 4.->, 208, '.)28 
 
 '♦ " r. Doni. .Salvai,'c, Xc, Co., 
 
 .-.7:{, (i74, 790, i:{;)2 
 
 " " /•. W.irrall 14..V_',2.">S, 874, 
 
 ()il(i, 1U3S, 110,'), I.-.I7 
 
 Halifax, City of, )•. IVntloy I l!l 
 
 r. Mower 129, (117, 1408 
 
 " " ». I!r(.\vn..(i28, 814, 987, 140.-,, 
 
 U.'iO 
 
 " " ?'. City K'y Co 028, a,'..') 
 
 " " v. Cliisi'n (518, 1404, l.'i47 
 
 " " I'. Cinniingliain (119, 1.S22, 
 
 1409, I4(i0 
 
 )), Kdw.mls o;iO, 1249 
 
 " " c. Hartlanil 297 
 
 '« " v. Konny .... 140, (.18, 1200, 
 
 1407 
 " " r. Lisikc'. . . . 170, 249, 292, 015 
 
 '•. MoLcarn 018, |;W9 
 
 " " 1: N. S. KkotricTel. ("<.., 
 
 017, 0.-)7 
 
 " " r. O'Connor . . .('.19, SI.'., 1400, 
 
 1404, 1405, 1409, 1410, 
 
 1412, 1429 
 
 r. T'ortor noO 
 
 1: Romans. .171, 391, 54??, 022, 
 
 028 
 
 " " r. .Scoton 629, 1248 
 
 " " and Sueton, In re 47,018, 
 
 1083, 1410 
 
 " " Vilwrt 309 
 
 Walker . . . .377, 623, 027, 1604 
 
 " " Western Ass. Co 207, 62(>, 
 
 1431 
 
 " Street R'y Co. v. Queen Ill, 1103 
 
 " Yacht Club, In re 315, 758, 1424 
 
 rni,"MN. 
 
 Hall r. Cariy 457 
 
 ll.illil.iiiloiiV. .Molh.y 833, 967 
 
 llalliday r. Dcianry 1030 
 
 Hamilton i\ .Anglo- iMcni'ii .S. S. C( 'Mt\ 
 
 i\ IJrown Or.2, 809, 1O04 
 
 ('. Ilan.illon 980 
 
 r. .\ortlui|. (151, 1003 
 
 (.. I'i.kK's ^95, 159(1 
 
 llincock ,■. 'I'oun of Dartmouth. . 314, (131, 877 
 
 llannon r. NLL-an 1001, 12.'.^, 1.-.70 
 
 Happy Couple 1 Hi, 1123. 1 12.-) 
 
 Haidy r. Fairbanks. . 307, 5r)3, 1110, 1228, ir,S9, 
 
 l.-.OO, KiOO 
 
 r. Smith -)4K, lOSO, 1 172 
 
 Hare r. .Murphy .'18,-), 784, 1171 
 
 Harrington i: HvynnUh 3.'l.'i, 1112 
 
 r. Witter 214,081, 687, 1009, 1022, 
 131,5, 1.328 
 
 Harris r. l''ailer 32, .384, ir.OS 
 
 " 1: M.Cormiek 107 
 
 " V. MeKen/ie 806 
 
 " ,.. Shetlield 178, 227, 920 
 
 " ,.. NVallaee .509, 702, 1.508 
 
 •' ,: Wier 824 
 
 Harrison r. Harrison 471, 610, ir.l7, 15,50, 1603 
 
 r. Hilton .392 
 
 V. Smith .577, 827, 833, 9.58, 1067 
 
 Hart r. .McCnire 888 
 
 " ■;■. I'ryor 171,804, 1114 
 
 " ;•. 'I'roop 179,008, 1222, 1'lSO 
 
 " 1: Western Un. Tel. Co r)42, 754, 
 
 1005, 1511 
 
 Hartle 1: llart'.e 12 
 
 llaitman. In re 4()ri, (t03 
 
 Han.shoine r. Wilkins 427, 510, 528, 1013, 1014 
 
 Harvey r. Cotter 1313, 1.549 
 
 " ' r. I'ielon I'.ank .3.58, 1213 
 
 Harvie r. MeKay ,506 
 
 " r. Wyhle 073 
 
 Hately, In re .50.5, 1 1.33, 1494, 1513 
 
 Hawes 1: Hart . . . .298, 3(M), 310, 798, 819, 1.322 
 
 Haw kins -'. IJaker 1601 
 
 llayden ?'. .MeNutt 74, 760, 1092, 1.5.33 
 
 Haydon ;;'. Dunn 97 
 
 Hazell V. Dyas 2.57, .5.34, 5.50, 1026, 15(M) 
 
 Head r. I'utnam 15.52 
 
 Heekman ?'. Zwiekei- 197 
 
 Medley, In re .59, 800, 1.521, 1.5.34 
 
 Hell'ernan, Estate of. In re .390. 7(i3, 1 1.35 
 
 z: Laey 1099 
 
 Heindall, The 1292 
 
 Hendei'son v. Conu'au 4.30, 880 
 
 Hendry v. City of Halifa.x 022 
 
 " P. .Suott 8.38 
 
 Hennessey v. New York Mutual Mar. Ins. 
 
 Co . 
 
 4-J 
 
 ■•18 
 
 Henry, The 1 127 
 
 V. McXeil 474 
 
 Herkins v. I'rovineial Ass. (V> 097 
 
 Herkimer, The 984, 1122, 1131, 13.57, 1.3.58 
 
 Herman, The 1285 
 
 Ludwig, The 1295 
 
 Hil.banl v. Tupper .501, .505, .506 
 
 Hibberts, The 1 132 
 
 Higgins V. MeLacliLan 893 
 
 Hill V. Archbold .591 , 940, 1008 
 
 " V. Culman 215, 1005 
 
 " V. Fraser 348 
 
 " V. Goodall 190, 1364 
 
 " V. MeLeod 196, 201, ,349, .590, 1229 
 
 Hiram, The 1128, 1132, 13-57 
 
INDEX. 
 
 1655 
 
 rOM'MN, 
 
 Hin-kiu7'. Kiilifiix it ('. I!. Il'yCi.. SS, I.T., Il(li> 
 
 Ifiij^Mii 7'. Ilci'ian 447 
 
 lid;,',!,' -■- Sli.a.l 4;)S, 4M-.', IIKI'J 
 
 lloldswdilli ('. ItiiMscll 4!)S, I i:tl) 
 
 IfdUiiiKl r. I!..vvtr I-'O, 11147, lOtll 
 
 lloliiiim, 1>. r.uViy, III i(! 3(14, Mid 
 
 (lolni.'s r. hiivisiiii -.MH, '.IS'), ll'-.'S 
 
 lldiiisliy r. .h.hiistoiic ;1IH, n'X), iO.VJ, II I I, 
 
 |-.';I0, I4(i7 
 
 lloilcm r. 'I'liliiii .TiO, !W7 
 
 lliKi>itiil foi' liisiinc. III ri H'J" 
 
 llossock r. Xciily rm, 1 MM 
 
 Ifowiird c. Liiiicasliiio Iiim, ('o 7'H,7tt7, 
 
 7!».S, !»4r», 1II4« 
 
 lldwc, Kstiitc (if, 111 10 IMS 
 
 IliiM.'y r. llMiik I-'.S, l<.)l, Id.-il 
 
 Hiit'siis r. Lyiiils 7,'< 
 
 V. L'ydiis 74, 7S4, 7!l!», HT.I 
 
 HiiKliaii r. Mel nlhiiii '-H.S, !>!|4 
 
 Hiiiiiplircy i: .lnucs KliKi 
 
 " r. Ldiiduii i*c Liiii. Ins. Co 7<M 
 
 Fruiit I. Ifiuliiw 117 
 
 " r. Sdiilc "• 
 
 HiMitir r. Mci)ciliiil(l 4!):. 
 
 ,■. I'.n|.lc's IJaiik |S.», (Ul, Hil.'> 
 
 " r. ItiiiiiK^ •">7">. It. '14, l.'i.'i.'J 
 
 Hutchiii»(()ii /•. Dill •-'!•-', 7.". 1. I4.-.!I 
 
 •» III 10 :(«;{, ()7:{, (!77 
 
 •' r. William !»10, |0|S, ir.li.-y 
 
 Ifiilt i: SiitliiMliuiil "J'-H, ti77 
 
 Mil liaitnii, Till! I-'S!» 
 
 liii,'Icli.4(l '•. Moikol llV. 
 
 Jiijilis r. .MU'ii 'JlKi, .'>4(), '.m 
 
 " c. (iiiciiwdiiil 10'24, ll!)(), I.")(i5 
 
 " r. Morris (Wl, 1411 
 
 Irish r. I'littiior :!.")!, (U!», SC.3 
 
 Irviiio r. S. S. Murine Ins. Co 747, i'-'H 
 
 Ives, Kstate of, In re, Kx [larle Caiii|il)ell. .2'M), 
 
 7'.I4, lIo(i 
 
 Jaekson r. Cainpliell 25, I'.'.VJ, 13ri9, l.^"iO, 138-.' 
 
 " i: Miinieipality of Cuinljci'laud o5, 
 
 .•il3, SI 2, 1488 
 
 .Tames Fraser, The '22, 8.")7, 1()S7, 127!) 
 
 .lardine r. Itowlev 2US, 224, 544 
 
 .lean .Aiiilerson, ■i'h.^ ()!)(), 1277 
 
 .leiikins u. Iiossmn 2"4 
 
 " V. .Slerlinj,' 325 
 
 " t». Tiipper 21 , 76:i, 1534 
 
 ,■. Way 1147, I2IS 
 
 .Icnnett v. IVii'tniaitre 1045, 1472 
 
 " V. Koss 1(».'>7 
 
 " V. Siiielair 338, RHH 429, Ii2(», 85? 
 
 .loiinings v. Hart 172, l.'iOf! 
 
 ilennison v. Miinicipiility of K. Hants 375, 1248 
 
 Jerusalem, The 1 1 24 
 
 .Jcykal V. X. S. (Mass Co . . .427, .^2;}, 85S, 8fi2 
 
 .T. H. Niekei-son, The 307, 3()8 
 
 •lohanna, The I I2fi, 1128 
 
 John, The 1285 
 
 .Johns V. IJarbour 54, U5, 649, (i55, 1 101 
 
 Johnson v. Arehihald 9."58, 1253 
 
 " V. Lithgow 40, 534 
 
 r. Ross IKlit, 1197 
 
 -Johnston, (!. R., In re 558, fil4, 1102 
 
 " V. Johnston 845 
 
 " i>. iMathesoii 396, 7ti8, 1186, 16.3" 
 
 " t). McLean (•)7, 94, lO.'iCi 
 
 V. Parr 823, 1647 
 
 ("OMIMN. 
 
 .lolinsK.ii r. I oviit/ 73, 2(10, (!ti3, 780, 1420, 1472 
 .liihiistoiie It. r.Veiian . . 655, 783, 13(12, 143tj. 1437 
 
 .loiies r. .Ii.lins 158, 4i'i7 
 
 " V. Kinney t>92, 1300, 1328 
 
 " I'. Kinnear loll 
 
 " r. Loeke 95f., 12Ui 
 
 " V. Williams 527, I5(U; 
 
 ■lout V. Chinch Wanleiis, ete... 54!>, 91(5, 1172 
 
 " t,. Davis 488 
 
 " r. Mc'Neill ....778, 11190, IC07, 1535, 1537 
 Kaiuliek ■. .All liiir. . .225, 400, 1(M»3, 1109, 1424 
 
 " V, .Moi ri-^oii 44, Si 
 
 Kaiill.aek r. Spidle ._. ..914 
 
 " V. Taylor 773, 893 
 
 KciiiK' V. Sharp I'><i6 
 
 Kearney c. Cieelmaii 480, 495, 1077. 12.33, 
 
 ir,03, 1.394 
 
 (. Diekson 84, (1.53, (iHO, 138(1, 
 
 1432, I(J(I2 
 
 V. Kean S2, 327, 1102, 1103 
 
 " M. Kearney 1617 
 
 V. Oakes . . . .3.38, .''lOS, (i05, 1154, 1331 
 
 Keating r. Kllis 1029, 15.32 
 
 Keefe«. Mil.(!liliail 207, 854, 148(5 
 
 Keiili r. .'viicli'.r Mar. Ins. C( 737 
 
 " r. Ciiimingham 17, 784. 1099 
 
 " ,.. Iladley 10.^0, 15(>6 
 
 " f. Intel eolonial Coal .Milling Co. .. .924, 
 
 1148 
 
 " t>. Treiiiain 1050, l.'ifJG 
 
 Kelly v. Ithodes 12,-), 9.-)3 
 
 Keiiiiedy 7'. Agrieiilliiral Ins. Co ()9(5 
 
 " Kstate of, In re 1141 
 
 Kenny t. Chisholm 2.-m, S<K) 
 
 " ?'. ' ity of Halifax 140, 12(iO, 134S 
 
 " , . Halifax Mar. Ins. C( 735 
 
 " 1,1 re 90, IKi, 811, 1.395 
 
 " T. Union Mar. Ins. Co 720 
 
 Kerr r: I )avison 4.59 
 
 " T. .MeLellaii 505, 1 1.32 
 
 " V. X.dson 1049 
 
 Keys 7'. I'olloek 842 
 
 Kid<l 7'. Henderson 15(J7 
 
 Kieli^y I'. Thompson 4(i5 
 
 King 7'. Mnnieiiiality of Kings.. .374, 804, 1540, 
 
 1(505 
 
 " V. Trustees, &c., Hail<leek 1.5(59 
 
 Kingley 7'. Smiili .5(51 
 
 Kings Count V Kleetion Case, In re ...5(t3, .50(5 
 
 Kinnear 7'. liarri.son 481, .591, 1(K»7 
 
 7'. .Silver 517, 888 
 
 Kinney v. Dndman. .91, 2(56, 42(J, 522, 555, «(!(!, 
 
 1098, 12.55, 1313 
 
 " I,. Jones ()91 , 1299, 132(5 
 
 r. Ryerson (584, 773 
 
 Kitehin r. .M'iDonald 53, 942, 1082 
 
 Knaiit i>. Sponagle (578, 1315 
 
 Kiiodel V. I5est 3, 31(5, 807 
 
 Kiiolan r. Dunn 430, 886 
 
 Knowlan v. Dunn .397 
 
 Koeh «. Danphineu 1391, 1605 
 
 LiuU, I'orter & (^o., In re !167, 982, 1324 
 
 Ladds V. Klliott 8,30, 1 192 
 
 Laidlaw r. Taylor 51, 68, .577, 828 
 
 Lake v. Lawsoii 1025 
 
 Landers v. Woodworth 127 
 
 Landry r. Jones 1049, 15(57 
 
 Lane v. Dorsay 1 188 
 
 " V. McDonald 1192 
 
1650 
 
 INDEX. 
 
 rol.rMN. 
 
 I 
 
 COM^MV. 
 
 I-iiiiK I'. l''(.iviM.ni .'!(», n|(5, (18S, i;U-', i:il(i Mcltrid.' p. Wnnl L>:i2, 14:11 
 
 Liii.Kill.' r. I L'illr 4.''2, l^x-'A M-CiIm. y, M.K;,y 7'.', lOlU 
 
 Liinlii' f. I''iiic|iiliiii- ■_'■_' Mi('ipiiiiiuk ('. l)iiiiiisi)ii B30, I I7B. li'dX 
 
 Latf r. Mrl,..aii .V.S. CCd MrCiillyc. Hinnliill 7J), Si I , lMi4. 14 |H 
 
 Liwlor, Ksial.'iif, lull! "lOlt, (lin, (MT, T'.'O. III!-' " c, I Hair ITifll 
 
 r. Mmutui.l ;t;i7, l'_Ms '• I-. DyU.'iimii -17, O'.'f^. 111!).' 
 
 liiiwri'iicc r. McDoiial.l ...7t!."', i(»!l<», i;in.-., 1 i: i'. M'lKay NH 
 
 La\vs..ii ,. I'.(ll..iii in, mil MiCiinly v. Ilarviy lOiH 
 
 r. City .pf Halifax I(i:i(i " r. MiDaiii.'l , 6''<! 
 
 r. ('(.I'licit SU, IIMI " I'. Miinlocli 7^1, Id'Hi 
 
 >: SaltiT Un, ;il',l, lls:t M.Daiiiri i<. McMillan WJ 
 
 0. 'I'oKiii W2 M.Doiial.l, AlexaiuliT, Kslalc c.f, In ic Ht, HIK), 
 
 I'. Wliiliiiaii ISli, (i()6 
 
 LiiytDii (t. McLean !tll. '>\H 
 
 ('. Sniitli .'117, 11 lit 
 
 Leake \ Laiillaw (hiMilvv'tilM) In I'e S4(! 
 
 Leaiy i\ Sauniieis lOOS, l.")ii.T, 1(107 
 
 l^eliianc »'. ( 'uller 1 5."i7 
 
 c, Mcl!ae so:., l.'i'Cii 
 
 LeCain r. Ilostennan. . .487. 7!t'.l, S'J'.t, lUMl, !I7(;, I 
 !»77, lo;i7, I07!l, l.'lll, VMU) \ 
 
 i\ Wielanil .■*J8 j 
 
 Leiih V. Tii>U I'J.'t, 1278 . 
 
 Lennox, In re 1 l.'ll ; 
 
 Len.iir r. Ititcliic. .HO, IIM , '-'(W, ()i;i, IlKi, i;t()4 ! 
 
 " M.Wallace 878 
 
 Leonard ,: (•o;.'swell il.-.d, I0'.''>, IHI7, I44!l! 
 
 Leslie r. Tavli'r 7l.'."> 
 
 Letleney r. 'Dillon .'117, I l'.''.', 1481 
 
 Levatte r, Saltei' ;i;i-J, ll.'(;7 1 
 
 Levin V. Ilrianci H."., I4l'(1, |;".|| I 
 
 Levy r. H. \ ( '. I!. R'y Si ("oiil Co !I(S8 | 
 
 Lew cr V. .Mc( •ullo''li 487, S-.'l, l.-.C-J j 
 
 Lewis r. Denton -j;!!!. !lll, |.".7.'i I 
 
 Lindsay c. ( 'ii;;,'liton ill.'l, IV.Mt, |,'.!)S^ 
 
 '. Zwickcr I7'-', -<>:i, '■'<'>i, .'liitl, (!("». 
 
 I •-'.•!((, I •.';!•.' 
 Lii|nor License, Co. of ILdil'ax ...•!(I8, 7-ii, l4S(i | 
 
 Litllc.loc (IM ,asc) ll'J7, ll:;(), 1.V.I7 i 
 
 " {•-■nd case) '.'S, I Il'7 j 
 
 Liverpool, liank of. In re. Kl.S.'l I 
 
 LiviMi,'ston c. School 'I'mrtecs, lioulardarie l'.i4l | 
 
 Lockiiart V. Waisoii .'■,;!;!, l.H!»! 
 
 I knian Stri'cl. lv\lensioii of. In re I04.">, I4(t(! 
 
 Lol;,iii (». ( 'nin, I'nion .\ss. Co (i!(7 
 
 Lon;;lcy ('. N'ortliern Ins. Co ..4H, '(»\. •(•_'S, I.VM j 
 Lonj,'vvortli ('. Mcrclianis' Hank . . .."iS,"), (17."), ^S.") I 
 
 Loonier V. Starr ;i:>l, 1-J(i7 I 
 
 Lord ('. ( irant 7-- 
 
 Lonlly (' lieckwith '.I7!» ; 
 
 " «. Kiely Ill.'l, 114 
 
 r)(;7, 7'.ir>, ii-'w. I4!ii. i(;;i;i 
 
 C. D., Kstate of. In re..M), .'i'lO, 6114, 
 
 r.tui, 7i»r>, 1141 
 
 r. Hlois 4;i!», 450, .'•.17, J'lH, 1105 
 
 r. Hiodie S4'.», lo'Jil 
 
 r, Cliisliolin 547 
 
 r. Clarke .... 7.'"., 42.', fi(12, WW, 1022, 
 
 loits, ii!>^, L'.yo 
 
 i\ |)<.nll riS7, 731 
 
 r. Kerynson 237,542,77!), lO-<ti, 
 
 1172, I4!)8 
 
 I'. I''raHer 4, I34!t, I3(;2, l4.'!8 
 
 n. (lelileri ...40.5, .'.63, ,5!t4, 81.(1, IKS I 
 
 V. Korlosll 762, llllli 
 
 IV i^ake .Major Cold .Miniiij; Co. 1((.".3 
 
 V. Lane ^....llil.'i 
 
 V. Lawrence 783, 1 0!I7 
 
 I'. .Mainiainl 104 
 
 V. McCnisli . . .(!2, 2(17, 275, .185, ;iH7, 
 
 8i:i. 132!», l.53!t 
 
 r. .McDonald .. 2(11, .'133, .'141, .TS!), 
 
 4,s;!, 48S, 4!I0, 53(1, 7(17. ^82, 
 
 11)0*, lO'.M, 12211, 1,V.I2 
 
 r. McDoii;,'all (I.', 1045 
 
 ,: .\lc!\eli/ie . . . IKS, 7.\'t, Hl7;l, l.".:i(i, 
 
 I6;i7, 1547 
 
 1. .McKinnon 1(132 
 
 c. .Mc.Mastcr 44(;, 1174 
 
 r. Mcr. Mar. Ins. Co. ,'1117, S.'ll , ll.'iS, 
 
 lO.Vt 
 
 ).. Mills 820, 1410 
 
 r. .N'ilclicll 770, 1071, KliH 
 
 V. Neville 217, 1027, l!i4.-. 
 
 ,.. Power (134, 978, 1215 
 
 r. I'.oiian 2!I7, .'iOl!, 812, 1041, 
 
 l.'l.VJ 
 
 i: Royal Ins. Co ...1110 
 
 V. St i'lskcy 170, 1075, 157i'> 
 
 V. SiUherland 15.")(; 
 
 r. Vaux 72 
 
 V. .MeKiie il.VJ 
 
 " V. YeoniaiiH (JHIi, 8!l(i M.^Doiiell r. Mc.Master 447,1176 
 
 Lt.uisl.urg Land Co. v. Tntty 48."., (Kiil, 77-'., .McDonnell ?i. .M( Master ...173, 4^5, 1047, 1180 
 
 1177, I4!I0 McDoii^al 1'. Ilinslielw(.o(l 17 
 
 r.ownds V. Rol.insoii ii;{3, !»'J2 McDongall v. ( icl.lert ;!il2, 10!)5 
 
 Lynch v. O'lirieii ;i!ll i '• v. (iritliii 557, lOf.O 
 
 " V. Riiif,' 423, .-.4."., !H;o, |2-_'!» " v. Hawes 1,")83 
 
 Lynds v. Umr .'litS, 7!I2, 80.'), 910, 948, !t.">2, 1084 i " v. .McDonald 38!). 39."), 91!», 1098 
 
 Lyoiiv. Morton 9(i3, l.")92 McKaclneii, Donahl, In re 61(1,815 
 
 Lyons V. Donovan 10."> McKwiin v. Outiain . . .fil, 1421 
 
 Mi.'Karlanc v. Kliim ()(I3, 9.")4 
 
 MacAgy v. ConiK)rs 12 
 
 Miickinliiy v. City of Halifax (12(1, 1247 
 
 Mackintosh v. Alinois 689, 979, 1324 
 
 MiicKiiy V. .McDonald .lOi') 
 
 MeAgy v. Cray .102, 130(1, 1445 
 
 McAllister v. Forsyth 145, 584 
 
 McAhnont v. Boinlrot 389 
 
 McArthur v. McGilvray 466, 914 
 
 V. .Smith 168, 396, 781 , 118;") 
 
 McFatridgc v. Carvill 1 1 10, 1 166 
 
 V. Hunter.. 23, 221, 842, 876, 1373 
 
 MeOee v. Perkins 177, 1019, 1 170 
 
 McCibbon v. Imperial Fire Ins. Co. 586, 694, 
 
 706 
 
 McCillivary «. Melsaac £98, 1436, 1548 
 
 McOillivray v. McDonald 813 
 
 McGilvray'w. Gibbons 552, 1254 
 
INDEX. 
 
 1657 
 
 coi.rMN. 
 
 Mi'( !i. Willi f. Iliildi'ii (i'J, 7.'>.''i 
 
 i\ MiMklcr ... !i;V.' 
 
 Mo(Jriin<if r. McAiclii'i' "•''<•, \W 
 
 " V. I'lith-n.iii .'tai. r>!»i, s-Ji. 1 1'.iii. 
 
 l'.'.'l!». IL'44, i;t.Vt, i;i,-,7. i!j(;;i. i;)!)-*, 
 1110. I HI, Ut2, Ul!t 
 
 Mi'Flri'itli 1'. Doull . . . I.")l , s.-.tl 
 
 Mi'liilosli I). ( '(iinmissiKiicrM of ( 'iiiii t IIhiini", 
 
 V. Ciillfn :iiU, 4-'(l 
 
 " V. McL.'chI ... •.'{)(), 2-'-.'. .ISli, .-)!»(!. I •_'■-'."> 
 
 Mi'Fsiiiic r. McL.mmI |():)7, 14!»;«, HIIL' 
 
 McKuy V .Mliiii I(»:', l!^H M,.\i,.l 
 
 c Aiiiiancl 144'.'. Kl.'l.'- 
 
 " v. |{i.iin.li :,'>.), VJW, IL'.'.T, l.'iTll 
 
 " t'. Ciniplioll B'.tl, !MI."> 
 
 " ". ('iiiiiiiiiii),'M (S.'i7 
 
 " I). (!l;ic( l!iy Miiiiiij,' Co .'t.V., .'185 
 
 " I', fi.imiltoii lolli, |();)4 
 
 " Kstiitcof, III re... 8.3.'), li;t',l, I44.''>, I •V.>7 
 " V. M.'Kiiy .'lO, 77,:W:i,H)!t,SH,'>, l-i;W, 144.") 
 
 " V. MooK' '244, ;{.-).•«, IIIH 
 
 " r. .Sntlifiliiiiil lifiH 
 
 " V. Wooilill SOO, i)3."), I -i!»4, l.V.Kl 
 
 Mi'Kui'ii V. .McDoiij^all 84L' 
 
 " V. McKiiy 847. M>-J 
 
 " 1'. Naiit* 21(1, 1014 
 
 " V. Powell I07;i 
 
 McKiiima i\ 'I'liicey 1 7f!, 'Jl!l, !i;i(t 
 
 McKunzie i». /Ktiiiv Iii.m. Co.. 704, 17<',i, 7(>4, HtIS, 
 
 A. L., line <I4, OK!, 141)7, ir.l7 
 
 " r, IJlarkiiiore ri7 
 
 " ", Itiddii) |i;t, •2i;-> 
 
 " r. CoiIh'II 7;{(i 
 
 " I'. ( lonloii .Vt't, .■.HI , !I,S4 
 
 " r. IFiin i.s ,")S_', I'.'K! 
 
 V. i^iimoiit. .4:»;j, .•>.•«), ii7.'«, 14H!», i.")i;{ 
 " n. r.oiin ,Ts.") 
 
 " ('. .Mil>oiial<l .'KW. .V.».'i 
 
 r. McKay 7.S, ll.">, .S07, l.'t!»4 
 
 lu McKiii/ii! . . . ,-)n, <»,S.S, l44-_', I.Vc' 
 
 " V. McLiaii 'Jl'H, :Uu\ 
 
 " )'. OMiiii; 10(il 
 
 " V. MoiiiTti^oii ;{(;;(, ,"i<»i, I4;{.") 
 
 McKilliijaii, Kstatc of, In it .S!WI, I \X.i 
 
 .MuKiniloii r. I'nodii' 444, 4S2, S47 
 
 " V. McDonald 4;{(;, ."r_'<J, ."i.SI , H.i2 
 
 " IV McDoiifiall (i.-.l, (;,-).S 
 
 V. McXciU ,-.!, a")0, ir)0;{, i.')!i4 
 
 iMoIiaclilan r. Kennedy lO.'ili 
 
 McLaren )■. McNeil 47, lO.V) 
 
 MeLoiin r. Hell 24 1 . I r)-.(i 
 
 r. IJradley IS, ;t7!». 1(MH» 
 
 p. Caniier 'JiO, '.'14 
 
 r. Ifannnn KMil , |-2.-)<», I "CI 
 
 " r. .lacolts '2m, l.')(>-2 
 
 V. M.Isaac (i4."), 1 .'WO 
 
 V. MuKiiy. . .;«), 81, 118, 4«!), 812, 1 1'JI, 
 
 14'23, l.MM) 
 
 V. Watson .")03, SH!, 14.'<(> 
 
 Afc Learn v. Lytle 780, 103."? 
 
 McLellan ?■. IJaldwin 31, 322, 1049 14!)7, 
 
 r. Butler 223 
 
 r. Fuhnore 8»2 
 
 " V. Ingntliam 535, 952 
 
 V. McLellan 253, (531 , 1494 
 
 McLellttnd o. Jennett 96 
 
 McLeod V. Campbell 447, 514, 887 
 
 V. Citizen's Ins. Co 695, 701 
 
 " V Dunlap 65, 383 
 
 f'Ol.ITMN. 
 
 .Nfefieod V. ClllleM 4.11, 474, .W7, I4t;.1 
 
 r. Welsh 49.'» 
 
 M.'MarHteiM /'. (lialian ;iS8, l(H»2 
 
 McMilli.ii /•. .McL.'o.l 49H 
 
 M.'.Midl.'ii 
 McNal) r. 
 
 " ('. 
 
 M(!Nair v, 
 
 McNeil r. 
 
 r. 
 
 " r. 
 
 Keiidii.k s:tl, 159: 
 
 Sawyer 'JUS, 1194 
 
 .Sliorllaiid 777. 109« 
 
 Miiiiro 263. 477 
 
 jicil.in 1070 
 
 Mcintosh 221 
 
 McNeil 499 
 
 Morehouse •_'47, 1182, KI.'IT 
 
 McNi.l '.'(14, »;i.'{, 1.-.46 
 
 .Mi^Nultf. McCalie 20,777, 1017 
 
 V. .McDonald .'i27, H61 
 
 M.'l'liail ». McKiiiii(;ii 558,1464 
 
 .Mi^l'lii'e V. ("anieion 495 
 
 " t). Cai'Mian 991 
 
 " V, Victoria <iold .Miniiin Co 1'.'24 
 
 .Mcl'liorHon v. ( 'iiiueron 2fi3 
 
 V. McDonald 510, lO.'iH. 11S7, 
 
 I'JIO, l-<28 
 
 Mc(i)uarrie r, Miiniii])alit v "f i^t Mary's .. 37'2, 
 
 ■ 377, 1013, 14J3, 1602 
 
 McKae o. ( 'oriiiier . . I<i33 
 
 " II. Diiidop 510, 1253 
 
 " V. .M(tKa(^ 4.16, 571 
 
 " 0. W Iward 16,847 
 
 McRitchie 1'. Morrison 499, 14;U) 
 
 McSwccuey ?). Wallace. .Si, 10(1, 9.'-0, 1(106, 1121 
 
 Mader I'. .Innes .•}29, 675, 1 MS 
 
 .Mailer I'. Iliil.ley .')()5, 1573 
 
 MaKliolia, Tiie I'-'91 
 
 Mahon v. ( laimiion 383, 996, I.IOO 
 
 " I- Caiiiioii 480, '.M)5 
 
 '• v. .Mcfully .'551, 4(1.>*, 599, 12:!0 
 
 Miiilliian i\ ( )verseerM of Poor 1041 
 
 Malc.liu. The 1130 
 
 Male;,'ii HarreiiH, In re S7'J, l'>-0 
 
 •Mulone ('. I)u>,'i;aii 766, 10(17, 1466 
 
 Manning I). I'lowiiiau 152,752 
 
 J?. DiAVolf (W8 
 
 Margaret , Th'! 1 '-'95 
 
 Marino, Tlic 1293 
 
 Marinaud r McCieady 521, 769, 1002 
 
 |uis l)c Soiiierweles l'-'4, 1121, 12(i4 
 
 hall r. Anderson 1191 
 
 " r. Municipality of .Shclluinio .... 253, 
 
 .'543,513 
 
 ,.. .Stci'lc 397, 431, f»87, 1023 
 
 Marter, K. 1!. K., In re C.'itJ, W>7, 1408 
 
 '• r Prvor I'i.3,8l» 
 
 Martha, The." 1'294 
 
 Martin r. P.arnes 45'2, 888 1360 
 
 " ,: Taylor 921, liiOJ, l(i07 
 
 Mason IK Clianilierlain 172. 1373 
 
 •• V. Mahar 575, 764, 10117 
 
 '• ».i. .Shedd 651 
 
 Masters r. Pliinney ... 76-, 1075, l.'}96, l.'>47 
 
 Matheson, Donald, In re 6^0 
 
 r. McLean 72,809 
 
 Matthias i\ Pace . . . 832 
 
 Maxwell, Kstato of. In re 1631 
 
 Mayette r. Ifuherl 448 
 
 May hew v. Ken l.Vi, 477, 665, 889 
 
 Meagher v. Colinan 448 
 
 V. I'aulin 479,840 
 
 V. Queen's Ins. Co 361, 1806 
 
 Meek r. (Jass 363,882 
 
 Meisner v. Fanning . . ..^7l■), 601), 916, r24'2, 1337 
 Melancon v. CQinea,u.. ..1010, 1-297, 1360, 1368 
 
 Man 
 Mar, 
 
1658 
 
 INDEX. 
 
 COH'MN. 
 
 Mrmd, Lii 1 TJa, 1 1'.'H, laoJ, l.'IM 
 
 Mci'cliiuitM' Itiuik r, Di'Wolt' Ittltl 
 
 " V. (;illcM|>i«i ;t|H, 7(!1, 7!tii, 
 
 IKK), 11(17, 1. 'in-.' 
 
 " V. S|iiim('y '.'IH 
 
 " V. Siiiitli Il(i;i 
 
 " V. Sti'fl Co. i(f Ciiiiailii..! I, !H1, 
 
 317, '>(!•-', 7<II,h:JH, 1070. I.")|ll, 1517 
 
 V. Stilling,'. . I'.Mi, •.'07, -Jja, •J'J'.i, 
 
 OMti 
 McrclmiitN' Miiiine Iiih. Co. ti. IlniiiHoy .... 'iU 
 
 McKsciiKtT r. I'arkiT '.'81, 8'Jl , l.S'JO 
 
 Mt'HHi'ivcy *. WiilliK^o \'Jt'2 
 
 Mct/.lur c. Ifiiivio 1», I4J 
 
 " V. .S|i('in'or 'iIV.l 
 
 " V. Spike I(;i'.> 
 
 Millur V. Liinty 480, (lOS, (i|o, |;i;t,s 
 
 " V. I.iiig 17, ^I'll, 82!», 1.-.I8 
 
 Millet V. Lordly 71. :is;{ 
 
 AlillH V. MuLtiiii 8, I'J.'i.S, 1570 
 
 '• V. Smith. ..3, 1 18, .-12.-), IS^y, i:)7l, i;»7-', H7-' 
 
 Miliior V. Ki'..gwoo(l 477 
 
 Millier'H A|)iitMil, In re >^~'2, I 477 
 
 Mimiit;. Tlii! (14."), HKi, |-J(HI, Il'7;1 
 
 MiMi'iier ('. ( iiiMlon 877 
 
 Mitchfll, Kstiilo of, III 10 (i8!l, I.SI4 
 
 " V. Liiiit/. U'.Ti, 11(10 
 
 " V. lliiymur II, ."riS 
 
 r. Tnnilmll :ii.'t. ',m 
 
 Mitelieson i: Dunuaii 3 
 
 Molliitt V. KorKUson 147, •J4'->, |-J<)!I 
 
 V. McHituliio 04, 80M, 1 -,27 
 
 Moir V. ItiiniHiiy 77, 810 
 
 •' V. .Sov(n't'ij{ii Kini Iim. (' . . ..T.M, 70'J 
 
 Montgomery r. Hurt !)17, 1 1(!7 
 
 In re .S'.'."), D'.IO 
 
 Montreal ct Km-opcan Short Line K'y 
 
 V. Sti'wart . 4I!», (l.'iO, ll.'iB 
 
 Moody V. .Ktna Ins. Co .'1118, 70!», !».')!» 
 
 i\ IJank of N. S (Mil, 770 
 
 " V. Faulkner !)(;.'{ 
 
 Mooncy i: Pio.s.soni .'{'.0 
 
 " A., In re (17!». Kf.'.'t 
 
 " r. Mcintosh 1 .''."id, l(;;t7 
 
 ;•. Smyth 487, I0'.i7 
 
 Moore V. Hannan Kt'il, l.'>.">8 
 
 " V. Moore L';i7, L"Uri, l.-)(i;i 
 
 " *'. I'owley !I7 
 
 Moren V. .Shellmrne Lumlier Co (li'iK 
 
 Morgan i<. Kiuc 4-0, 157:1 
 
 Morrison /•. Kishwick 3118, UW, 1501, 1.-.77 
 
 V Kandiek 4;{, 81, 10.\} 
 
 " V. Thompson 28(1, 5"J7, !'55, 1574 
 
 Morse v. Chesnult 385 
 
 C. K., In re 1(19 
 
 " V. Hueston 3(10, 4.'J3, IJ.'M 
 
 " V. Ripley 77'2 
 
 Morton v. Cainphell 210, lO.'if! 
 
 " Estate of, In re 75, (;(i7, 1043, 1325 
 
 " I'. MeLeod 881,IJ(11 
 
 " u. I'atillo 7-.'5 
 
 " V. .Snow ...... 470 
 
 Mosher v. Doran .'iOit 
 
 " V. Miller 478, 894 
 
 Moss V. Eureka Woollen Mills Co 944 
 
 Mott i;. Rank of N. S 184 
 
 " V.Burns 407, «60, 1247 
 
 " w. Feenor Ll.W 
 
 " w. Lockhart 872 
 
 Motton V. Brennan 44, (18, 169, 1428 
 
 Mulhall V. Barss 527, 934, l.'JO? 
 
 COLUMN. 
 
 MiillMlly i: DilloM 101(1 
 
 MuMifiird I'. Miiiiil'oril 712 
 
 .M.MMo r. KlIioK 4-'2, 60H, I52n 
 
 )'. OvfrscciM of I'oor, Wallace lO.'t.'i 
 
 .Miirdn.h |Ii';imish. In re will of 82, KIM 
 
 V. ilcll.ini 891, 1518 
 
 V Di W.ilf '.'ao 
 
 V. Kra.sir '.^'O, 5S9 
 
 r.Criinl 548,1171 
 
 V. lliigheH 5 
 
 /•. LiiwNon 7'.'3, 891 
 
 (• I'ittH 843 
 
 r. WalHh (185 
 
 r. W. .'C: A. \Vy Co. . . . '-'(14, 1 150, 1 1(18 
 
 .MuriH(.n r. Itoyd '..(1. 1'-', 1097, I2.".(;, i;i78 
 
 r. .MuViHon. . . .4, \-M\). I-'KHI 1H81, l;l,84, 
 
 i;!81l 
 
 Murphy i\ Dulhunty 8C,|, 1.'.72 
 
 r. HouK. 71,1427 
 
 " /•. 'rrcnholni ... 119, 10(15 
 
 Murray ''.< iiiMtouguay 2."i2. 1)85 
 
 r. .MeDciuaid 5.'(i, '.CIT 
 
 r. N. S. .Mar. Ins. (',>. ... 740 
 
 " r. KoHs 1021, 13(14 
 
 Nancy, The 273, 91(1, 11.M14, I.'K.d 
 
 \ash"l'.rick it Pottery M'fg Co., In re .37'^, 
 
 759, 898, 10M7, 1051, 1399 
 
 " I). McCartney 4, (!, 10, 1439 
 
 Naums r. .Maskell 2'2(!, 1009 
 
 N'avlor r. Bell ,824 
 
 Xeal r. Allan 4.\ 918 
 
 • I'. Henry 315, 1013 
 
 Ncary r. lAiwler 5 1(1, 1 105 
 
 Nelson V. Arcliiliald 1.58 
 
 ' r. Connors .'18. 518, 1 1(17 
 
 " I'. Fulton .'195, 781, 1095, 1499 
 
 •' Estate of. In re (143, 775, 1 i'M 
 
 Neville r. ( iarrett 4(H) 
 
 Xewcond) V, Sinimiinds 440 
 
 New Orleans Packet, The 4'.'9, 972 
 
 Nictaux & Atlantic K'y Co,, In re 135, 8(((1, 
 
 10(18, 11.53 
 
 Norris v. Taylor 749, 10(14, 1441 
 
 North Am. Life Ass. Vi>. v. Cr'aigei 7K( 
 
 Northup V .lean 887 
 
 N, S. Land X- Cold CrnsliingCo. i\ Uolloug..399 
 N. S, Salt ( ;o. V. H. Hi C. H. K'y it (^.al I'o, . .:W, 
 
 1149 
 
 N. S, Tel. Co. V. Am. Tel. C( 421, 835 
 
 Nueslra Senora del Carmen 2(1, 91(1, !.'7I, 
 
 11 '29, 13,55 
 
 Oakes v. City of Halifax . . . 82, 106, 170, 1091, 
 
 1496 
 
 " V Keating 4(12, 9(18 
 
 •' V. Ryerson KIO 
 
 O'Brien r. City of Halifax 6'24, 9(14, 1.5'29 
 
 V. Young 104(5 
 
 O'Connor v. Com. Union Ass, Co 096, 697 
 
 " »•. Condon 305 
 
 V. Fisher 389, 9(13, 1098 
 
 " V. Mer. Mar. Ins. Co ... 741 
 
 " V. Royal Can. Ins. Co 1 092 
 
 V. Wallace •J04, 875 
 
 V. Weeks 148, 169, 1095 
 
 O'Donnell V. Confederation Life Ins. Co... 538, 
 
 668,711, 713, 1614 
 " V. Honeyman. 118, 1466 
 
INDEX. 
 
 1650 
 
 (■(II.I'MN, 
 
 O'K.Il V. I'.rll 'SM, II'.U 
 
 (Miiiicl r. l!.iliiiiM. Ill' I, I'JMl) 
 
 (CMiillJii iiihl .liiliM^idiir, III re Wtd.s.'l'.i, DO'.' 
 
 I'. .M, ■Dull, lid L'!!, 7'-<-, '.H'lL', Kl.'ilt, 
 
 (CN'.il r. Wills !t!H, K'l.'), 1145, Il(i7 
 
 Oninyr r. Mi'Kiiy . I'.'TS 
 
 OH riii^ iiT."., II-.N, i-j^.;. 
 
 OSiilliviiii. KmIuU' ipf, In. V .'Tl, ('.'ft. I I 10. lil'JM 
 
 ()"l'c"i| V. ]\»n]„v 7'.' 
 
 (f|'(M,l,. V. Walliui' lO'l, 7M». loai, 114.'! 
 
 Oiiiiiuii I'. Uo.vif II Id, {•.'(111, ir.'.i'.i 
 
 r. .^in'illi 7.'l-, l-'ir> 
 
 •' », Tavlnr lOjO 
 
 OvcrmioiH of I'ihh' v. IIinsom ln',i> 
 
 I). llii'viilNoii .. |!»4. Kilt.'p, I im;{ 
 " " V. I'i'Vli' m.'i 
 
 " " V. MrKdi/iii no;'. 
 
 V. .M.|,,.||iiii |<i;{, i;i(i-' 
 
 " " (('(iriiuiillis) V, Ovorscu!/* 
 
 of i'.M.i((;iiuiviiii) 8ir> 
 
 " " (liriilLtiwulcr) v. (.'oiiiiiiIm- 
 
 siolHTM of l'ooi( .\lc(l\\ay). . . . lO.'U, 1 IS.'t 
 " " (( Ircfiilii'lil) ('. OviTuci'i'M 
 
 of Poor (doslii'ii) 7!l, SIO. !l-J!l, lOMi;, !-i(i() 
 
 Ow.Mi V. I.yiirli 4.'i4, -ill*, 779, 1 17s 
 
 " V. Oiiiui Miiluiil .Mar. Iii.s. Co TL'U 
 
 Oxluy V. Spcmwalur l;^, !)>ri, I.'Un, I'lii^t 
 
 l'fij.'i^ r. ( 'iiaiiiliciH . . — VfSH, \:>3, r,6:i, .-i;;!, 1587 
 
 I'liiiit, V. Mac Lean 4:!(;, 1027 
 
 J'ui'ker V. l'"aiil(aiiUs -10(1, X'M 
 
 '- 0. Kenny (iSCi, I S^") 
 
 Piii'sons V. .loni's •'i).">. .'(17 
 
 " V. .MacLcaii (i, l."0, .",1'.', 'u.H, |.-)(iS 
 
 I'atcli V. Pitman 72!l 
 
 Paliiol, 'riii^ 4l'.4, ll.'U 
 
 Pattoiwon V. Aivliiliald I()7.S 
 
 V. Dutliis l-'l-', 7.'il , l»8!l, 1." Ill 
 
 " V. .MiPhcTson 477, 4.S0, S4« 
 
 Patty, 'I'lu^ iH.'^ 
 
 Pay/ant v. l*ii.L,'<'li>w lO.'ill 
 
 •' V .MolllgoMK'IV .. l,")('i<,( 
 
 I'l'art V. Peart ". -I.'O, 487, ;'!»l> 
 
 Peere««, 'I'lie l!i7S 
 
 Peillon, K.\ parte I0S4, I ItiS 
 
 ronpit 'V. Tlie North IJril. \' .Mer. Ins. Co. 
 
 .'Il.l'.'.il', 7711, 1016, lOCH, 111.". 
 Pe|)py f. Croiio. . IL'I, ;!-J0, 3Jl', 547, iOI-', l.'ilK. 
 
 I.V20 
 
 Purley v. Snow . . lU.'i, I Ml 
 
 I'oter'is V l''recker «.".8. I5."),'S 
 
 " t). .Silver ".I4(;, '.(54 
 
 Peltipas V. Crosliy I'27(i 
 
 Phaileiii;. Phail.'n Pi'.., I()!t7 
 
 Phelani). Kelly.. (MM 
 
 " V. I'lielan . 4SH 
 
 Pietou r.iink v. Ifarvey .'iu.'^, 1214 
 
 " )). I'laser 678 
 
 " Uaihvay l>aiiiaj,'<>s, In re SS, 133,615, I ).5S 
 •' .SiJKiol 'I'ni.stee.s V (,'aineron . . .3^1, PJ40 
 
 '• Town of, !' .\l(d)oiialtl .'lOS 
 
 Pier.s, ,Ste|)lion, Will of, In re liSli, I (i.'Jo 
 
 I'ilgriin, The 1 1'J.S 
 
 Pine, Estate of, In re 3S;), 1 134, 1(130 
 
 Pinto V. (iiivazu 236, 237, H'^'.t, 1 1 !»■'>, 132o 
 
 ' In re 130, •-'34, 1411 
 
 •' r.Shaw 321,1440,14.54 
 
 Pitts V. Taylor 333, 955 
 
 Voiicia y. MeDonnell 574, 776 
 
 Pope V. Pietou Steamboat Co 8 1 , 34 1 , 
 
 1116, 1120, 1435 
 
 I roi.i'MN. 
 
 Pophani V. Cahooii 165 
 
 potters r. Taylor lO'' 10.^6 
 
 Powei' V. Cri'lliii .Mt7, H2.S, 15-J6 
 
 Pree.lv r. liahUviii ...7m, lOHM 
 
 Pliestr, !!iiNM.|l 400 
 
 Provi.liiirc, I'he 3ii. 1)17, i;i47. IH.'O, |3'i4, 
 
 l.'l.jii. I3:i7, i;i.'>l>, ;3Sil, |.'i4S 
 
 Piii\ iileiK (• \\ash. liiM Co, /'. .Miiion 7-4 
 
 •' •• D. Corhett 7-'r> 
 
 Proviiiiial Meilicil Moanl /'. U'anhiiititoii. , .H64 
 
 I'll^'li r, Peters ;t!t7, M'^ Ul\ 160!) 
 
 " r. Wvhle 733, l'.M7 
 
 Plllleli V. S'anfonl '2\» 
 
 Piiii.h /'. Chisholiu .TiO, I41i;j 
 
 Plircell r. jhirUe 1566 
 
 Piirily i: liiirl>riilj,'(! 110 
 
 " ' ■'. .Mathens 71 
 
 Pyke, In the Matter of. . . . '230, 3.">7, 1092, l'J'J4 
 1 
 
 Queen »-. Allan 408, 'A'.i, IVM), 1414, 1477 
 
 ! " I', lielvea 413, 804, 14.37 
 
 •' r. jJla'ck .419, 1319 
 
 j " r. iilaekie .... 114, 777, 1067, 141.5, 1476 
 
 I " r. Mrown .308, KtS.V 1169 
 
 " r. P.iir.lell ;i(i, 413, 80.5, I.S.'IS 1.377 
 
 I " V. Calhoun 92. 280, 21t4 
 
 " r. Cameron 'J.VJ, 992 
 
 " V Caiter...-.'.'it;, •JIC-', *J1I.3, 769, 10.'>_'. l.'\4'2 
 
 " ('. ChesaiieakeaiiilCarj^o 27,990, 
 
 1122 
 
 " r. Chesley 246, 511 
 
 " )». Clii|)iiian... .311, 818, 1244, 1434, KiO.'i 
 
 " c. Cialihey 418,1080.1169 
 
 " V. CunniiiKhani 4011, 410 790, 1316 
 
 '• ('. ("iitler 1628 
 
 '• )'. Dehay 407, 1318 
 
 '• r. l),,novan 76, Kt.")8, 1610 
 
 I " ?', Dowse V 414, I.'t(i4, 1476 
 
 '• ii. Kl/,. .'. .2911, 869, 1478 
 
 " I). Flint .802, 1 199, 127.5 l.'iOS 
 
 " r. Kraser S.'t9, HK)2, 1 197, 1303 
 
 " IV Cold Watehe.s 1199 
 
 " V (iraliani 2«2, 820, 1.329 
 
 •• r. Hawes 776, 10.-)2, 1.303 
 
 " r. Ileah^v 414, l.V.t6 
 
 '• r. Ileiidt'v 417,971 
 
 •• r. Ilicknian 418, l(»8r., 1 169, 1320 
 
 " r. Ill.ks 27.5, 817, 8.54 
 
 " r. Ilohues X" I'.reckeii 412 
 
 '• r. Ilucstis 410,81.5, 1.3.51 
 
 " r. Ilu-hes .821, 1.349 
 
 " /•. Iliiiniihrev 24.5, 10,S8 
 
 " r. Kenned v" 406, 796, 803 
 
 " r. KiMsniaii 417, .581, 791, 1273 
 
 " r. Lani/ .321, 1318, 1495 
 
 " r. NcDanto 412, 1317 
 
 » ,, Levy 311, 628 
 
 '« V. lA.ms 276,299 
 
 " ,'. MeDonaia 277,299,817 
 
 " r. .M.Fadden 282, 293, 819, 1.351 
 
 " r. MeKaieher 2.57, 292, 1088 
 
 " V. McKer./.ie 1 76, 251, 293 
 
 " V. Martin 409, 412, 79.3, 8.50, 1319, 
 
 1,357, 1.309 
 
 " V. Miller <i7, 827 
 
 " r. Murphy 177, 407, 804, 14.37 
 
 " V. M urray 244, 3 1 3, 387, 1 487 
 
 " r. O'Xeil 278, 295, 403, 1087, 1 142 
 
 •' r. Orr 278,296 
 
 '• r. Porter. .279, 295, 301, 307. 1330, 13.52 
 " V. Preeper 416 
 
1660 
 
 INDEX. 
 
 Queen v. Qninn 411, 804, 1477, 14fl(i 
 
 " r. Kiol'.y ;W.> 
 
 " V. Kill's •_'!)(! 
 
 " (.'. H()l)in tid,"), CO; 
 
 " V. Ross tl'J 
 
 " r. Kiiinsey •_' IS 
 
 " V. Hiiasdl 4(l!l 
 
 " I.'. Ryerson 174, i).".7, 1107, 1470 
 
 " V. Suiter •_'77, •-Mt4, .SI4, l;{;)4 
 
 " V. Sliepeard (iO, :<MK I ."('JS 
 
 " V. Shortis SIS, l,-)l<,l 
 
 " V. Sniitli 4I.S, 147.') 
 
 " V. Snow ST I 
 
 " i\ Stowe 4i;i 
 
 " v. Thompson 417, lns"), I Ki!) 
 
 " r. Toliin .SO.'!, SOS, KMd. 1(100 
 
 " V. Todd O'i, .■)7G, 0S7, i;no ; 
 
 " I!. Topple 411 I 
 
 " i: Town t'ouiiL'ilof l):unnio\itli . . \'M, S."),"!, ; 
 
 1 •_•;)(), 1410 I 
 
 " V. Upliani 0(i I 
 
 " V. Wiillace 411, 147.") j 
 
 " r. Ward •i7», -'07, .'111, 104S 
 
 " r. Warden and 'I'own ("oiincil of Dart- 
 mouth i.ss, H:yA, 8.').'), i(r)4, i'_';{0 
 
 " r. Watson 41S 
 
 " ('. Wolfe (Kl, 'J07, '-'To, I.ViO 
 
 " r. Woodwortli 4.m, 1(140 
 
 Quirk v. Twininj,' !(4, l(t(i4 
 
 Ralston r. Rarss 1'207, l.'l.VJ 
 
 " Estate of, In re . .'A. SO, ;W2, .'WKi. .")7li, 
 704, WM, 11. -{7, i;!!Ml, 14;!.'. 
 
 Ramie /•. Walker !)'_'.'l, I4S4 
 
 Rand r. Flavin ',]'/,. ."iO.'! 
 
 " r. Roekwell. . 4.'), 7S, 7!t;i, 8(10, Ol'O. lol.'l, 
 
 14r.l, 14'i.") 
 
 Randall r. Dela]) ."1. 1 i:!!t, K-'JO 
 
 RiUehford r. Chiimian 0, 70S, l'..ViO, l.".7S 
 
 " r. Kinnear 10.S;{, l.Vi;!, Kilo 
 
 Ray /•. ('nrl)ett 4.")7, 10i;{ 
 
 Raymond r. Riehards 8, l(i2, 004, 1 17S 
 
 Read r. Munieipaly of (.'. I>. .•171, 8(m, 1201, i.'iOO 
 
 Kej;ina, The " ll'.")!», l-J'.M 
 
 Reid r. Smith .">1, •JOl, 770, lOSO, 1170, I.'IS.") 
 
 Reine Des Anf,'es, La 1 1'_'0, 1,T)S 
 
 Renner /• Halifax Steanihoal Co O.SS 
 
 Rent )'. Adiington ,"> 
 
 RepuUlican, The R>(;(! 
 
 Reward, The 07:i, 1 1--'7 
 
 Reynolds r. Declimnn 01. '1, l.'iSl 
 
 " i\ Gallagher (iold Mining Co :j(i!». 
 
 707, 1104 
 
 Rhodes r. Ratriek 80."), 14l'."> 
 
 Riee, In re92, 0;i, 'JitO, 'AUT, 41S, OKi, lOSO, IIWO 
 
 Riehardson r. Twining I'J'ili, l.")SI 
 
 Riehmoiul, The 1200 ' 
 
 Riekards, Estate of. In re ()S2 
 
 V. Riekards 104 
 
 Riddel v. Gordon 120, 1. ");!."> 
 
 Rimes r. O'Rrien 1 17, 1 10, 121 
 
 Rines i: Hermes 7S4, 1074, 14'27, l."i()."> | 
 
 Ring r. IJrennan . 1 100 
 
 Riplev ('. Baker s;{7 
 
 Risser v. Hart 398, 420, 0;i4, ],-)!)4 
 
 Ritchie r. Hall 4.') | 
 
 " Precedence of, In re. .80. 191, 208, 012, 
 
 1140, 1243, I.SO.T 
 
 Roach V. Ware 200, 9.")8, 1007 ! 
 
 Roberts v. Patillo 457, 580, 1012 | 
 
 COLUMV, 
 
 Robertson r. Ciimen n 1 1, .'l.">, l(»90 
 
 r. I)<jm. S. S. Co 2,s;{, 1202 
 
 " r. Diidman 42, 71") 
 
 r. Iliilifax Coal Co 020. 1100 
 
 r. Lamic s;{. .-)()() 
 
 /•. Lovett 74."), 84:i, KilO 
 
 r. I'ugii ,")4I, 720, lO.'iS 
 
 /•. Stalls 74;{ 
 
 r. wiiii.uiis i;i, i."):io 
 
 Koliin.-^on r. City ol lialifa.x 2."), 017, 1407 
 
 r. Ilemlry Itm 
 
 !!., Tlie 12,S9 
 
 Rnihe, L., Estat.' of, hire .'i'.IO, 1134, 10.32 
 
 Itoikwell r'. Koss .34, 173, 0.30, 1470 
 
 llodgers V. .loiies 7.30 
 
 Rogers r. Rogers 31(i, 1(»48 
 
 Roiine V. Moiilrial (Kran S.S. Co. 284. .33,'), 1 1 1") 
 
 Roo|), K^tate of. In iv .SO, ."iC)!!, 1 1.33, 1 1,3") 
 
 Roper r. Sliaiiiion 0, l.")4, 043, llil 
 
 Koseio, Tlie 42.-), 1 122 
 
 Rose r. Riirke 7."), 700, 1417, I4.S0 
 
 Ko.^'s r. Harrington (iOl, 878, 1078 
 
 " r. Hunter 4.")!, 470, 1170, 1480 
 
 " r. MuKenzie 200 
 
 " I'eter, In re .34, 10."), 1040 
 
 Roteh r. Flimi I.")(i8 
 
 Roue r. IVendeigast 17."), 2.")2, 1481 
 
 Rciwena, Tiie 1280 
 
 Royal Arch, The 1 289 
 
 Royal Can. Ins. Co. r. Merelumti' Mar. 
 
 Ins. Co 74.") 
 
 " " •. I'ugii 74.") 
 
 r. .Smith .")43, 7 17, 703, 1071 
 
 lioyal Ins. ( 'o. r. .loncs 748 
 
 Rule r. Rdliirtsoli 1.-) 
 
 lillles of Coiill 1202 
 
 Riimsey r. (jiinningham . .48, OS, I4S, 092, 1214, 
 
 1,")07 
 
 r. Hare S, 151, 1307 
 
 " /•. .Meirhanls' .Mar. Ins, Co 733 
 
 r. I'rov. Wash. Ins. Vo 43, 7.38 
 
 RiinelM'ig, The 1293 
 
 Ru.ssell r. ("ook 109 
 
 " /•. Grant 214, lOU 
 
 " r. Marshall 540, 9.39, 12,80, 1.302, 
 
 14.3i;, l.")92 
 
 Ryan /•. Hawes .")70, 1.322 
 
 Ryerson i: 1 )eil.y .342, (10(» 
 
 " V. Lyons .321, 1220 
 
 Sally Ann, The 37, 1127 
 
 .Salter ?: Full IdS 
 
 " t: Hughes 30, 47, 610, ri20, 1.3.")0 
 
 .Sancton v. NIor.se 020, 1 181 
 
 .Sanford v. Rnwles 1 7S, 1 579 
 
 r. .Sanford 110 
 
 Sarah, The 1 287 
 
 .■^irdinian, The 1270 
 
 Saunders r. Holdswoith 21 
 
 .Sawyer r. ( iray 274, 1213 
 
 S. 15. Hume, The 1259, 1 287 
 
 .School ,Sec. No. 29, In re 139, 302, 1241 
 
 .Scott V. Angus 604, 1072, 12r)3 
 
 " c. Rruin.m 352,988 
 
 " r. Croekett 343 
 
 " r. Henderson COO, 1.3.38, 13.39, 1341, 
 
 1.346, 1300, 1.392 
 
 " V. MeXutt 452, 494, 1258. U46 
 
 " i>. Royal Halifax Yacht Club. . .315, 392, 
 
 557, 1485 
 Scottswood, The 1288 
 
INDEX. 
 
 1661 
 
 COLUMN. 
 
 Senman r. ramplicU 4?.'J, 804, Ofil, ir)94 
 
 " V. CuttiT ITiTl 
 
 " V. DeWolf 3-Jl, IWl, V.]X\, insi. 
 
 l.')8S, i:{!io 
 
 Estate of, Ii re HUT 
 
 c. I'oiter. ..."0. C(J. (113, Sr.O, lOOa, 1I>S3 
 
 " V. West 741 
 
 Seaway, Tlie I l!l!», i:><)2 
 
 Se(li^e\vi>-.k r. hiiiliiiiiks li;7, 1'lU), 10.')1 
 
 Seeiy r. (iill.eil Id'.IS 
 
 " ». I'lacly 32, !l.".!l, |()3(l 
 
 Seetou r. Aleirliaiits' liaiik Iti.'i, 121(1 
 
 Severn, Tlie 1 121, l.'WI 
 
 Seymour t\ I'.ieliiiiei'. ... ."i.'VJ 
 
 Sliaiily 7'. ril/rand' " ' Kid, l(i4, r.-_'l 
 
 Sluimialiuii i'. 1-t J an !C_'4 
 
 Sliaij) r'. Maxnt r 7S(i, Kill 
 
 Sliattonl -•. l.elilane I2()l 
 
 -c>. Nelson ■2V.i 
 
 Sliell)iii'ne, Miiniei|)alily of, t'. Marshall ... .■J.'i.S, 
 
 M-2. :>\:i, i4-.'i 
 
 Shepherd r. Wliite 4().S, 10!l!), 14!lit, l.V.Mi 
 
 Slierloek -■. .MeLelhin (is4 
 
 Sliey r. Cliisiiolni 4.VJ, .')47, IMKI, I ISO, l;U(l 
 
 " T. McHetVey 1201, l.-.(ll 
 
 Ship Uetsy, The I '_'(),') 
 
 Shorey z-. Jones I.V.t. 4(1S 
 
 Sililey ?'. Chisholni ilOd, 107!l 
 
 " c'. Sil.ley 170, 1221, l.-)Sl 
 
 Silver IJell, 'I'he I2!t.') 
 
 Silver 7\ Doni. Teletrrai)!! Co 4(10 
 
 " V. .MeC'iiHoeir. 10.-) 
 
 " V. Petitniaitre (isd 
 
 " -■. Silver (144, VSI 
 
 Simpson r. Foote 44.-> 
 
 Estate of, in re :W.S, ;«l(), ."ill, .■)47, 
 
 7(W, 704, II. "54, II. SS, l.Tss. 1442 
 
 Sinelair v. Wakefield 22(1, (i;!7. i;i7l, 14!(l 
 
 Sini,'er Sewing M. Co. r. McLeod. .2;i;ii, ;us, ,s;{4 
 
 Skinner z: Clarke !I!I2, I ISS, l;i!»7 
 
 7'. Lane 1!».S, 404, NO.'I, 1 104 
 
 Slayter v. .I.ihnston ilO.S, l;iill, |;J!I4, 144;{ 
 
 Sloeoml) z'. .Morse 2;U, .■);{7, 940, H.'il 
 
 .Smith z: Hank of N. S l!SS 
 
 " V. Cuff K), .S4fi 
 
 " r. Fulton .Vil, 12S1, i;{(i7, I.Vi2 
 
 " T. (iiUies II (HI 
 
 " r: Intereohuiial Coal Mining Co..S(10, !»22 
 
 " c. .McDonald 4(i!l, iltiS, KrJO, KlOi) 
 
 " r. MeEaehren. .201, 'X^'A, !IS7, I.T>2, I4.-.0, 
 
 Uol, 1470 
 
 " c. MeKenzie 48(1 
 
 " c. NeLean 442, 14(11,14(14 
 
 " r. McNeil 247, l.'iil'.l 
 
 " r. .Maxner Kl.V), l.-)()(i 
 
 " r. Koyal Canadian Ins Co 71 S 
 
 " r. Smith. .-Ml, (112, 7.S0, 974, KMKl, 1257, 
 
 14(11, i.-as 
 
 " t'. Stewart 84vS, 84», 102.-) 
 
 " I'. Troop l.-)(i2 
 
 Smithers, Estate of. In re 1 10, -)72, 1 142 
 
 y. Smith .S!)0, 7>Si, 1461 
 
 " r. Smithers r)72, l(Mi4 
 
 Smyth V. McDomihrHH, 4S4,()0!),84;!, 1:140, l.'Hd 
 
 " I'. McDougall I(«t7 
 
 " r. McLean 475, odd 
 
 " V. .McNeil ;?.'), 8:!7, 14^0 
 
 Snook's Petitions 27, 1128, ll.Sl 
 
 Snow r. Morton 4ii9 
 
 Somervillc r. Morion 11124 
 
 Songster v. Pay/ant 533 
 
 COI.UM.N. 
 
 Souther r. Wallace .-)3. 203, 200, 212, 215, 
 
 21 S, 224, 22(1, 229, 421, 749, 8S0, lO.Ti, 1001 
 
 Sovereign l''ire Ins. Co. r. .Moir 592, 7<l3 
 
 Speiue, In re 378, (117, 1148 
 
 " /■. W. iS: .\. I!y ( o 04d, l.-)93 
 
 Spinney c. .Matthews 107 
 
 I " r. i'ui,'slcv 334, 88;-) 
 
 Spurr r. Khk rkiM". 1231, l,-)88 
 
 Stalker r. Wier 8(ld, I2(il, I;'i78 
 
 Stanford r. Inland -Navigation Co 0.-)9 
 
 Stanwood"s Ciise 2(5, 1(17 
 
 Staples c. Tayh)r 5, 7, .38, 1438 
 
 Starr r. Heares 311, 813 
 
 " M'fg Co. -•. Fairbanks lOd, 474, d.-)2, lOOd 
 
 " '•. Muucc y 3, d, 1378 
 
 Stiiyner r. Ilow.ui 217, 1015 
 
 Steel V. I'ife l.-)d9 
 
 Steel Co. of Canada, In re .34, 31H, 7dl, 7d2, 
 
 ' 79(1, 1071, IKJti, ll(J7, 1331, 1.332 
 
 ' " r. N'ance 545, 1017 
 
 Stella Marie. The 1285 
 
 Stephens r. (Ia\a/a (1(10 
 
 I " '•. Twining 1(12, 8.30. 003, 0O4 
 
 t " r. Wier d.-)4 
 
 ' Stel)]uMi.>oii r. ( olford l(K)d 
 
 r. Dulhanly 874, 9,-)(j 
 
 .Stevens /'. ()vei>eers of P<ior 10.35 
 
 Stewart r, V.ovM 0(K) 
 
 ! " r. Waugh l.-)55 
 
 I " r. Wheeler 2.34, 9.50, 1 193 
 
 St Ceorge's Parish v. King 100,30(1 
 
 Slimpsoii /'. N. H. it .N. S. S. S. Co . . .28.3, 048, 
 
 007, 14(10 
 
 ' Stockh(dni. The 1130, l.-)48 
 
 Stuart, C. W.. In re 804 
 
 i " r. .Moll 873 
 
 Succe.^^s, The 1124 
 
 Sumner r. Iiiirnhill 07 
 
 Suliierland, In re .387, (185, 791, 10(14 
 
 r. Wi.idden ..4,V_', .-).-)9, lOdI, 1110, 
 ' 12.58 
 
 '■. Wilson 240, 504 
 
 S. V. Coonan 1280 
 
 Swan /•. Pryor 381, 800, 1091 
 
 Sweet, .\ii|"ical of. In re ,59. .383, 800 
 
 " Ktiie. lu re 140, 291, 1200, 1480 
 
 Sword's Lease, lu re 871 
 
 Svljili, The 1288 
 
 Sylpliide, The 1290 
 
 S'ymond.s r. IJeckett 1 100 
 
 r. Fishwick 41, 326 
 
 Taniaahmah. The 1203 
 
 Tancied r. OMuUin 003, 6.37 
 
 Tarratt /•. Sawyer 158, 2.30, 240, 589, 1.344 
 
 Taylor r. .Aich'ihald 1502 
 
 '" i: ( ;avin 48, 62, 03, 247, 281, 1427 
 
 " r. McFarlane 207 
 
 " r. Marshall 4!», 207, 800 
 
 Teed '■. IJeehe 540, 058, 1 105, 1.554 
 
 Teujple V. .McDonahl 25, 8.3.3, 1500 
 
 Tliayer r. Vance fi45, 045, 1014 
 
 Tiierian r. iJelliveau 1561 
 
 Thcdcheau ?: Everett 803, 940, 1605 
 
 : Thihidean c. Hyerson ,340, 1 18.T 
 
 Thomas r. Kay 61 , 00, .353, llfiO 
 
 Thomas Wilson. The 972, 126,3 
 
 Thomp.son c. .\ckiiurst 140, 1070, 1507 
 
 f. Ellis 9, 1 55, .580, 797 
 
 I •' v. Longaril .302, 582, 1219 
 
1662 
 
 INDEX. 
 
 Thoriic ». Shaw .S5, 945, 1()4(», 1 oOS 
 
 Tlioipu r. McLean l-.T.O 
 
 Thivo Riotli.'i-M, The I iL't; 
 
 'riiice SiHteiM, 'I'hu I'-'tili 
 
 TickU^r, Tlii' l-JsC. 
 
 Titua V. Hiiiiu'M -liWi 
 
 " t). Siilis 4(i.">, ('..•{S, 1(114, l.'itUt 
 
 Tdl.in V. Dunn l(l-.'7, lOT.'i. l-'4(i 
 
 " Kstiilc (if, In re .Vi'li, 1 "i!s:t 
 
 '• V. O'Xcill lo.'il , I ■).■>:{ 
 
 ti SyiiKinds 4'_'l'i, Wl, l-'tiT 
 
 'Pciry ('. Muniripiility of (juyshori)' 1 1."), .'!'.•(! 
 
 Townshend /'. I'ye lOlU 
 
 Ti'iu'ey I'. Yoimj^ IWi') ."iJ". 1017 
 
 Travel's r. MiM miay 'iJ^fi, '.MO 
 
 Trcniaine r. Halifax ( ias Co Ill, 174, tlOL' 
 
 ('. Mai'Intosh 101, ."i'J.-) 
 
 Tronhohn r Trt'iiliohii 4i'i,i"('*o 
 
 Trois Fiei'os, Les 4il4 
 
 Troop V, Anelior .Mai'. Ins. Co 110 
 
 " r. jtonnell (!.'»!> 
 
 " /'. Hart 180, (l()8. r-"J3, 15hO 
 
 '• >'. Jones 7'26 
 
 " r. Merehanls' .Mar. liis. Co 7'_',S 
 
 " r. Mosier 73C«, 80S 
 
 " V. Troo|/ 2l.'() 
 
 Truatjes of I'nldic Property r. (Jillis 4!>;{ 
 
 r. Kerr. .107!), l.").S() 
 '' School Section 1() c. Cameron .380, 
 
 i--';V.», 1 I.S'.> 
 
 Tucker r. Creighton I'il , C.Sl, Sil.") 
 
 K. 1)., In re r.7C, l.'H.'i, l.'U.'. 
 
 Tupper ('. Cainpl)ell. ..117, 635, UM2, liVa, 1(!07 
 
 " r. Crowe ■")!).'{ 
 
 " V. Livingston 101!) 
 
 " I'. iMurphy. . . ,300, 81'.', 8l(i, lod.'i, 13.51, 
 1418, 14111, 1423, I4'.t7 
 
 " V. Wright 891 
 
 Twining v. O.vley 180, 1,V.)8 
 
 " V. Stevens •Jti.'?. CO.') 
 
 Two IJiiles of Cotton rJ87 
 
 Two Brothers 1 1-_>4 
 
 Uniacke v. Urnndige 8,83, lOD'J 
 
 V. Dickson 2rM, 317,838, 133*1, l:U2, VMli 
 
 " V. (iariliner 80(1, 10.">() 
 
 Union, Tlie ilKl, 1273 
 
 Union Hank ». Farnsworth 2'_'5, ,')1() 
 
 Union liank v. Whitman 1 ■>7 
 
 Union Marine Insnrance Co. v. Mel/ler.... 734 
 United States, 'I'iie 1)72, 1 124 
 
 Vass V. Letson .'")7''^, 1 ">43 
 
 Venus, Tiie 1 1±>, 1 1-_>3 
 
 Vernon v. Seaman l.>8,"), l(l,3(i ! 
 
 Viekcry v. I'rice 774, 047, !M!4, 1018 ! 
 
 Victs*. Chute !»l!); 
 
 Von Metzku i\ I'adtield 70 
 
 Walker v. Hayers 477, Mfi, 940 i 
 
 '• V. City of Haifax 24, 377, (iUf, 023, I 
 ()27, 1106, 14(X), 140(), l(i()4 
 
 " V. Cunningham 21 , 1,")7'-' 
 
 " r. Stewart 777, 9,')7, 9(19 
 
 " The 1291 
 
 Wallace v. Bossom 91, 559, 679, 778, 1(»23 
 
 " r. Burkner 1102 
 
 " V. Creelman 869, 870, 1022, 1029 
 
 •' w. Fraser 512,826,1213 
 
 COI.IMN. 
 
 Wallace llucstisCicy Stone Co., In ri; 2(14,757 
 
 " r. King 2ill, 1417 
 
 " ('. Laidhiw 444, lO'Jl, ll!l(» 
 
 " r. .McSwci'iicy 81, I0()7, 1 l-_'l 
 
 " r. Ol'ool.'..; 40;!, 790, lo;{'_', 1143 
 
 " r. Iloss 1011, I 199 
 
 " /'. S.mtiicr 82, 203, 215, 218, 221, 227, 
 229. 880, 1 102, 1 1(»3 
 
 " T. .1., Ill ic 1(1(1, .•<0!(, ;!23 
 
 " r. Young 404,787 
 
 Walsh ,-. Il.irl .' 1(13, 13!)8 
 
 " ('. McDonald 1297 
 
 \Vani|)atiii'!;, i'lic .3(17 
 
 Ward t\ Cilv ot llalifiix (125 
 
 " r. Mc'Doii.ild lll'j, |;i!l8 
 
 Warden, \c., D.irlinoulli, v. (,>iiccn ...l.'iS, l'_','!7 
 
 Waiieii, Sir .lohn, I'clitioiiof 972, 1129 
 
 Watcrin.in c. Will ....V,)?. 815, 1232 
 
 Watcrons KnL'iiic Co. /•. Chiistic '-'11, lo:i2 
 
 Walcrs /'. .Mc'Ciilioch 199, •J2:f, 1028 
 
 \Vat,«oii /'. llcncy (12, 171, 2.4, 1017, I4J7 
 
 r. Mercantile .Mar. Ins. Co 738 
 
 " r. ,MMiiicii)alily of Colchester. .371, 935, 
 
 1089 
 
 Wavcl.l,Thc ,S01, 1270. 1'271, 1371 
 
 WeliUer ('. Co-^well 811, 157(> 
 
 Welisler I?. Jlnlnal llilief Society .. lOlO, I0:i2, 
 
 >i;;!9 
 
 Weeks /'. I'.onhun .".88, 7.''(!, 821, 149(1 
 
 Appliealion of. In re 167, 191,834 
 
 We're Here, The 1-272 
 
 West /•. Ilontilier 92.3, 954 
 
 " r. .MalI.eson 4.>l, !M)1, I 182 
 
 " r. .Met/.ler lO.'iO 
 
 " ('..Seaman 741 
 
 We.sleni .Ass. Co. /'. Doidl -lO, 700, 705 
 
 Western Counties K'y, In re 9(1. 1.33, .381, 
 
 11.50, 1 121 
 Western Counties H'y r. W. & A. K'y ('o ..273, 
 
 '1103, 11(12 
 
 W. K. Wi.r, Tiie 1274 
 
 W. C. Putnam, The 12iK) 
 
 Wheaton r. FranciieviUe, 322, 8'J(i, 12-22 
 
 Wheelock r. P.rowii (17, 1042 
 
 r. Chcsley 213,751 
 
 " r. .McKown (107, i;«!t 
 
 /'. Morrison 475,9-28, 1341, I4(!(i, 1409 
 
 White V. I )iinock .'187, .5(10. 772 
 
 " /•. '■''•'Miming. .5.5-2, 942 
 
 " r. Variuoul'h (ias Light Co 9<i2 
 
 Whitehead r. Howard ^ 9,50, 978 
 
 Whitman r. Colp 3(il 
 
 " 7: Jones 473, 5-22, 1608 
 
 ,: Parker 198, 1219 
 
 r. Western Co's K'y Co. 285, 849, 14'29 
 r. W. & A. H'y Co ...92,5, 1155, KlOli 
 
 W iekwire i\ liouhl 130, 141 
 
 Wier i: Bissctl 4-2(), 1.599 
 
 " it Cumminger, In the Matter of 109 
 
 ■' r. Letson 70, 336, .595, 799 
 
 " r. Walker 1042 
 
 Wiggins r. Town of Windsor 58, 141, 307 
 
 Wilkie, Kstate <if. In re 1(130 
 
 Wilkins r. (ieddes 8(1, 751, 1 144 
 
 Williams r. .Myers 37, .3.5.3, 481, 1397 
 
 Willis ,\ Sweet 401, 838, 15.3-2, l.\38 
 
 Wilinot r. Shaw . . , 8(13, 1481 
 
 Wilson, In ro 33, 8-22, 851, 1397 
 
 ('. Lyle 5-26 
 
 " r. Merchants' Marine Ins. I'o 723 
 
 \^ inchester v. Roblee 49, 65, 1428 
 
INDEX. 
 
 1663 
 
 VV. & A. li'y Co. V. WcstiMii Co's R'y Co . . .3S, 
 
 L'liH, 2--2, y; 1 , 1 1-2, 1 1 (1 1 , 1 1 ('.3, 
 
 l.')l(t. I -ill 
 
 \V. & A. i:"y, In ic KSO, L'ti;., 1 157 
 
 Windsor .Miir. Ins. Co, v. Ladd ri44, IKiil, 
 
 9t)>,), 117! 
 Winds')!', Town of, o ('oni. IJ.irik of Windsor 
 
 ll'!>, 18-_', •_'()!>, 1. •{•_>() 
 
 Wolfe r. .loncs (jf)« 
 
 Wood V. Allan •_'M7, ASS, 1.S70, 1 fliCJ 
 
 " «. Ksson <H7 
 
 " V Hare CHI , <)()l' 
 
 " ('. Sniitli 4S-2 
 
 Woodliniy t'. ( Jatcs 2iM) 
 
 Woodiii ii. IJnslii'n 1(14,1541 
 
 W(io<lill V. Lc( 'tas 73 
 
 Woodldck V. I )iikio •_>77, .S<t4, .T.l.'l, 813, !)!l,\ 14i>{5 
 
 Woods ('. KiasiT 4r)0, 5,Sii, l.'iilS 
 
 Woodwoitli «. niackadi'i- ir>('>7 : 
 
 " V. lionluii . .;W(i, lilS, .■)(»(» 
 
 " V. Cutten . ~C>S, lu;{!t : 
 
 cor.r.Mx. 
 
 Woodwortli V. Dickio 8.">, •245, 4,3.*) 
 
 V. Inni.s 48, (>;{, 807, l4-2(», l-J-.'S, 14:10 
 
 Kslatc ol, III It; (i;W, l«'.>.-( 
 
 " r. Troop I'JO 
 
 " p. Witlirow 41) 
 
 " ('. Woodwortli 544, !Mt9, 1180 
 
 Wright V. .Morning llurald Co 4t!0, <Mi« 
 
 »• Ki(^\ iH 118, 1 7<i, •_'.■)« 
 
 Wnr/linrg i>. Wil.li... .S8, ;i2.1, 1081, lll.S, l.VJ!) 
 
 Wylde r. Trcniainf 10S7 
 
 " V. Ihiion Mar. Ins. Co 744, i:i7;l 
 
 " I'. Wet more 'M}, UHKi 
 
 Wynian t'. Iiiipcrial \-'\w Ins. C «•)<», 1038 
 
 Voniig V. DcWolf 98 
 
 " » Ilait 71(> 
 
 " f. Tracoy 3r)5, 528, 1017 
 
 Vork V. McLaughlin . , , .(ii) 
 
 /ink y. Zink 38'J, 3!I9, lliU 
 
 Zodiac, Thf (-.78, 1 1'jii, l(;i>3 
 
 /wicker v. /ink 957, 1014, 1'_'41