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