IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 tiiin o 12.0 IIM m m 1.4 1.6 V} <^ VI ^: ^1 ^# /}. % 1^, ^ »> *4 /, /A //% ^# J Photographic Sciences Corporation n, compte tenu de la condition et de la nettet6 r i l'exemplaire film6, et en conformity avec les conditions du contrat de filmage. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. Les exemplaires originaux dont la couverture en papier est imprimde sont film^s en commenpant par le premier plat et en terminant soit par la dernidre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, selon le cas. Tous les autres exemplaires originaux sont film6s on commandant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. The last recorded frame on each microfiche shall contain the symbol —^' (meaning "CON- TINUED "), or the symbol V (meaning "END "), whichever applies. Un des symboles suivants apparaitra sur la dernidre image de cheque microfiche, selon le cas: le symbole — ^ signifie "A SUIVRE", le symbole V signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Stre film^s d des taux de reduction diff^rents. Lorsque le document est trop grand pour etre reproduit en un seul clich6, il est film6 d partir de Tangle sup6rieuir gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants ilSustrent la m^thode. 1 2 3 1 2 3 4 5 6 CANADA NATIONAL LIBRARY BIBLIOTHEQUE NATIONALE ^7 MANUAL OF EVIDENCE IX C fV[L CASKS BY R. E. KIXGSI'OKD, M.A., LL.H., iy Voron/o^ Han ister. BBCON13 EDITION njKONTO: The (Joowin Law Book an., P,;Br ,s„.nc; Co. (I rn. 1S97 ) Kl r\)GrSro*^b p,c Entered according to Art of the Parliament of Canada, in the year one thousand eight hundred and ninety-seven, by Thk (Ioouwin Law Book am; Ftii- LISHING CoMi'ANY, LiMiTKU, at the Department of Agricuhuie. PREFACE TO SECOND EDITION. Tlie Manual of Evidence, of which the present is the second edition, was piibhshed in 1889. It has been out of print for some time. That it lias been again called for is the " best evidence " of the utility of the volume. In the present edition I have not changed the plan of the book. My intention has been to provide a compact statement of the proof required in each actiDn, and to cite the essential cases which are apposite. The line of decision in each instance since the date of the first publication has been followed up. The reports re- ferred to include the Ontario Reports up to and in- clusive of Volume 27, the Ontario Appeal Reports up to and inclusive of Volume 2;^, and the Dominion Supreme Court Reports up to and inclusive of Vol- ume 25. The Practice Reports up to and inclusive of Volume 16 are less frecpiently referred to. At the end of the book will be found a collection of later cases on miscellaneous subjects alphabetically arranged. The l^vidence Act and its amendments are printed as a supplement. An index is also fur- nished. By closer printing and the use of smaller IV. PREFACE. type, it has been possible to add very largely to the number ofcases referred to, while the size of the book remains the same. Mr. J. E. Hansford, who assisted me with the de- tail of the first edition, has been unable, owing to his other engagements, to assist me in this one, and I am solely responsible for the present execution of the work as well as for its design. R. E. KINGSFORD. 34 Murray Strekt, Toronto, Jmuary, 1897. TABLE OF CONTENTS. Preface . . Table of Cases Addenda Pace ii ix XX I 13 PART I. ACTIONS ON SIMPLE CONTRACTS. Sale of Real Property Use and Occupation Waste, Bad Husbandry, etc ......... .\ Bills of Exchange, Cheques, and Promissory' Notes'. ,c Policy of Insurance. '5 Marine Insurance Fire Insurance ** Life Insurance ^5 Contract of Aflfreightment ......!!...... ^^ Guarantee ^9 Warranty 33 Promise of Marriage ^^ Award • 39 Solicitor's Bill *° Against Solicitor for Negligence ^^ By Medical Practitioners. . .. ^^ For Wages and Wrongful Dismissal '. H Net Accepting Goods '♦5 Not Delivering Goods .'.][ ^^ Goods Sold and Delivered ^ Work and Materials 49 Money Paid ^^ Money Lent " " 57 Money Had and Received . . ^f Account Stated ' 5° Against Innkeepers ^' Against Pawnbrokers J' Against Carriers 3* 63 vi. CONTENTS. PART II. DEFENCES IN ACTIONS ON SIMPLE CONTRACTS. I'Af.E Alphabetical List 68 PART III. ACTIONS ON SPECIALTIES. On Covenants 90 Some of the Most Material Issues Arising in Actions on Deeds and Bonds generally 92 Some of the Most Material Issues Arising in Actions on Incases or other Conveyances of Real Property 96 Actions on Covenants Relating to Land 100 For Double Value 105 For Doul)le Rent 105 On Bond 106 For Penalty 107 PART IV ACTIONS ON WRONGS INDEPENDENT OF CONTRACT. Nuisance Negligence Negligent Driving of Carriages Negligent Navigation of Ships Negligent Keeping of Animals Negligent Use of Land Negligent Keeping of Fire or Inflammable Matter. Negligence of Railway Companies Street Railways Negligence of Fellow Servants Wrongful Act, Default or Neglect Causing Deaili . Disturbance of Support of Land Obstruction of Light or Air Disturbance of Way Disturbance of Watercourse Infringement of Copyright 108 1X2 117 118 118 119 119 119 124 125 126 127 128 128 13' 133 CONTENTS. Vll. PAGE Infringement of Trade Mark 134 Infringement of Patent 136 Deceit and Misrepresentation 1 38 Malicious Prosecution 1 59 Defamation.... 141 Malicious Arrest i ec Wrongful Distress i c c Excessive Distress I ec Irregular Distress 157 Illegal Distress. 1 1;8 Seduction 160 Assault and Battery 163 False Imprisonment . 164 Trespass to Personal Property 167 Trespass to Land 168 Mesne Prufits i5q Conversion of Goods 1 70 Detention of Goods 1 78 Recovery of Land 178 Replevin 1X3 PART V. CASES ON MISCELLANEOUS SUBJECTS ALPHABETICALLY ARRANGED 185 APPENDIX. Sections Selected from R.S.O., 1887, Cap. 61— Evidence Act and Amendments iqi Index 206 TABLE OF CASES. I I'ACJE Abernethy v. Hutchinson .... 134 Acme Silver Co. v. Stacey Hardware Co 153 Adamson v. Adamsou 168 Adamson v. Rogers 186 Addison v. GandassequI 51 Alderson v. Maddeson 3 Aldous V. Cornwall 71 Aldrich v. Aldrich i86 Aldridfje v. Johnson 172 Allcard V. Skinner 89 Allen V. Hayward ill Allen V. Lyon 134 Allison V. McDonald 34> 84 Allison, Kc 42 Ambrose v. Fraser 99 Anchor v. Keith 24 Anchor v. Pha'nix 25 Anderson V. G.T.R 124 Anglo-Can. v. Suckling 133 Anglo-Can. v. Winnifrith .... 133 Annis v. Corbet .... 100 Ardill V. Citizens 26 Armstrong v. Auger 6 Armstrong v. Hemstreet 82 Armstrong' v.Nason. (Sec^d^t/.) 4 Arnold V. Playter 53 Arnold v. White 103, 112 Arthur v. G.T.R 132 Ashfield V. Edgell 170 Atkinson v. Bell 55, 172 Attack V. Bramwell 159 Att'y-Gen. v. Niagara Falls . . 74 Attrill V. Piatt 132 Badgley v. Dixon 55 Badcock v. Freeman 115 Baglehole v. Walters 47 i-ac;b Bagueley v. Hawluy 36 Bain v. Anderson 56 Bain v. Crompton 136 Bain v. Fothergill 9 Baker v. Atkinson 100 Baker v. Holtzapfel 11 Balme v. Hutton 167 Baldwin v. Kingslone.. 60 Baldwin v. Wanzer 96, 102 Bamfield v. Massey 162 Bank of B.N. A. v. Western. , 24 Bank of Hamilton v. Shepherd 21 Barber v. Clark 60 Barnett v. Earl of Guildford . 168 Barr v. (iibson 36 Barthel v. Scotten 91 Barlonshill Coal Co. v. Reid. . 117 Bate V. C.P.R 67 Bateson v. Gosling 83 Battishill v. Reid in Baxendale v. C.W.R. Co 59 Beam v. Beam 28 Beam v. Merner 136 Beavan v. McDonnell 75 Beaton v. Intelligencer 154 Beattie v. Dinnick 34 Beatty v. Davis 187 Beatty v. Rumble 141 Becherer v. Asher 51 Bedingfield v. Onslow 109 Belfast, etc. v. Keys 67 Bellamy V. Badgerow 91 Bellamy v. Barnes 104 Bell V. Irish 157 Bell V. Macklin 139 Bell V. Walker 82 Bennett v. Parker 88 TABLIC or CASES. VIV. |'A(;b 36 56 136 9 100 II 167 60 , 102 162 24 21 60 168 36 91 117 67 83 III 59 28 136 75 154 34 187 141 51 109 67 91 104 »57 139 82 88 PACK Bensley v. BijjnoKl 73 licrric v. Wooils 99 Belts V. DeVitre 136 Hijjjje V. Parkinson 37 Bishop V. Howard 12 Black V. Coleman 1 56 Blackburn v. Smith . 9 Blake v. Midland Ry. Co 127 Blofield V. I'ayne IJS Bloxam v. Sanders 172 Blyth V. Biriiiinjjham 112 Bond V. Toronto Ry. Co 124 Booth V. McLean '■> Boltoinley v. Nultall ji Boulton V. HIake 103 Bowcn V. Owen 87 Bowej V. Hill 130 Boyil V. Robinson 104 Bradlaugh v. Nc\vdcj;ate 7 ] Brant ford S. R. Co. v. Iliifl'nian 1 )6 Brass v. Mailland 31 Brassert v. McKwan 177 Bticker v. Campbell 153 Bridge v. Crand Junction Ry. 120 Bridgewater Co. v. Murphy.. 20 Bristol, etc. v. Tayl(jr 35 Brittain v. Lloyd 58 Button V. .Milsom 19 ! Brocklebank V Sugrue 21 I Brown V. Bushey .... 130 Brown v. Kastern & Midland ' R. W. Co 113 i Brown v. Edgington 27 \ Brown V. I ones 70 | Brown v. Lennox loi Brown v. McKinally 60 Brown V. Moyer 154 Brown V. Toronto (ieneral Hospital 114 Bruce v. Jones 25 Brundage v. Howard 70 Bryce v, Loutit 1 10 Brydon v. Stewart 1 25 Buckly V. Beigle lOI Bunnell v. Cordon iSb Burf.)ot V. Dumoulin 185 l'A(.K Burgess V. tiray ill Burn V. Miller 54 Bui net v. I lope 45 Burns v. Davidson 188 Burroughes v. I'.iyne 175 Burrows V. (iatcs 12 liuriows V. Leavens "J I Bntrowes v. Cairns 1 5 Burwell v. Londt)n Kree Press 154 Bush V. Hanson 135 ' ush V. McCorniack 153 Uyrne v. Boadle 121 C:>lder V. 'Johel 51 Caldv .11 V. Mills 126 ' ildwell V. .Stadacona 27 Caujeron, AV 28 Cameron v. Cameron 77 C-^nieron v. Carter 6 Cameron v. Si)iking 2 Cimpbcll V. .\L ICiJi richer. . 3, 56 C.impl)eil V. .Shields ..... 15 Canada l^lbli,^lliMJ; Co. v. Cage 134 ! anada Bank Note Co. v. T >- r(,nto R. \V 55 Cmada Permanent v. Todd .. 188 Cannan v. Wood 81 Capper, Ex farte 10 Car V. K ing 52 Carey v. (ioss 135 Carroll v. Freeman 113 Carr v. Corticld 190 Carson v. Simpson 187 Carter v. Hamilton 137 Carter v. (Jrassett 128 Carvick v. HIagrave 97 Cartwright v. Cray 1 12 Ca^ey v. Hanloa 5 Caswell V. Coare 38 Central Bank v. Osborne .... «6 Cliamberlain v. Chamberlain . 86 Chanter v. Hopkins 36 Chase v. McDonald 1 18 Cheek v. Roper 19 Chesney v. St. John 59 Christie v. Criggs 66 Church V. Linton 134 X. TABLE OF CASES. I! hi! PAGE Clayton v, Corby 131 Clark V. Hngar 73 Clarke v. Eckroyd 59 Clarke v. Bradiaugh 107 Clarke v. Scottish Imp 21 Clayton's Case 80 Cleave v. Jones 79 Cleaver v. North of Scotland M. Co I Clendinning v. Turner 10 Clow V. Clow 14 Coates V. Coates 3 Cobban v. C. P. R ....... . 64, 1 24 Coe V. Wise 1 1 1 Coffey V. Scane 155 Cohen v. S. E. Ry. Co 67 Colbert V. I licks 155 Cole V. Hiil)ble 163 Cook V. Shaw 74 Cook V. Tate 1S9 Cooke V, Edwards 15 Coombs V. Reg 1 23 Confederation v. O'Donnell. . . 27 Connel v. Boulton 104 Copeland v. Om. L. Co. Co. 30 Corbet v. Johnston 54 Corby v. Hill no Corridan v. Wilkinson 154 Cossette V. Dunn 154 Costello V. Ilunier 40 Crain v . Rapple 6 Crain v. Ryan 117 Crane v. Hunt 62 Crathern v. Bell 34 Crawford v. Buy;g . . . 15, loi Cred. Fonc. v. Lawrie 90 Crombie v. Wallsend Local Board 128 Crossfield v. (Jould 5 Crosson v. 15iglcy 74 Cudney v. Giles 74 CulleUon v. Miller 132 Culley v. Tayierson 180 Cumberland v. Kearns 4 Cunliffe v. Sefton . . 94 Curtis v. Spitly 99 PAGE Curtis v. Wheeler. . . 184 Daines v. Hartley 145 Dalrymple v. Scott 53 Dame v. Slater 6 Dancey v. (i.T. R 66 Daniel v. Metropolitan Ry. Co. 12a Davidson v. Frnzer 82 Davis V. Burrill 103 Davis V. I'itchers 104 Davis V. Hewitt 73 Dawson v. Morgan 58 Deering v. Winchelsea El ... . 57 DeKuyper v. VanDulken 135 Delaney v. C.P.R 77 DeMedina V. Norman 5 Demorest v. Midland 88 Denison v. Maitland 183 Devins v. Royal Templars. ... 29 Devine v. (iriftin 2 Disher v. Clarris 89 Dixon V. Clarke 87 Dixon V. Cro.ss 100 Dixon V. Richelieu 64 Dixon V. Yates 172 Doheity v. All man 14 Doe d. Bord v. Burton i8a Doe V. Payne lOI Doe V. Passingham 179 Doe d. ['"lennng V Sommerton iSi Doe d, llindly v. Rickerby. . , loi Doe d. Wimburn v. Kent 104 Dolen V. Metropolitan Life. . . 29 Dominion Bank v. Wiggins. . . 16 Douglass V. Murphy icx) Donogh V. (lillespie 82 Donovan V Herbert 168 Doss V. Doss 168 Dnswell v. Impey 164 Dove V. Dove 103 Dracachi v. Anglo-American Novelty Co 30 Drake v. Wigle 15 Dreiinan v. Kingston 115 Drew V. Baby i !2 Duncan v. C.P.R 124 Dunlop v. Usborne 26 LiM liii! TABLE OF CASES. xu PAGE Dunsford v. Michigan Central Railroad Co 1 23 Durochie v. Cornwall 1 14 Eaton, Re 28 Eaves V. Dixon 3^ Echstein v. Ri-ynolds 87 Edmonds V. Hamilton 27 Edwards v. lIo(>per 1 76 Electric Despatch v. liell Tel. 1 89 Elliott V. liaird 132 Elliott V. Elliott 170 Elliott V. Stanley 91 Ellis V. Ahfll 3 Ellis V. Clemens 131 Ellis V. Hamlin 55 Ellis V. Midland 45 Ellis V. Sheffield Ill Emhlen v, Myers 112 Emniett v. Q'linn 99 Empey v. Carscallen 190 Entner v. liennewcis 162 Erdman v. Waikerlon 1 14 Evans v. Jiidkins 87 Evans v. Watt 162 Ewingv. Toronto Ky. Co... 124 E.xall V. Partridge 57 Eyles V. Ellis 8l Fairwealher v. Owen Sound.. 126 Farewell v. Farewell 189 P'arqiihar v. Farley 9 Farcjuhar v. Hamilton 56 Farcjuhar v. Toronto 1S5 Faulkner v. Faulkner 90 Ferguson v. vSoiiihwold 114 Fergu.son v. Veitch 162 Fesenmayer v. Adcnck 61 Fielil V. Mitchell 157 Finch V. Klount 176 Fi>her v. Prowse no Fletcher v. Rylands 113 Flintoft v. iClmore 2 P'lood v. London West 117 Flower v. Sadler 73 Ford v. Beech 83 Forwood v. Toronto, 115, 116, 124 Forsyth v. Bristowe 95 PACK Foulkes v. Sellway 41 Fowell V. Chown 138 Fox V. Millington 135 Fox V. Williamson 1 19 Frank v. Sun Life. 28 Freeman v. Jeffries 59 Frederick v. Lookup 107 Frowde v. Parish 134 Frye v. Milligan 38 Galhraith v. Irving lOO Callaway v. Herbert 181 (iardiner v. Chajjman 112 (iarland v. Thompson 139 Garland v. Toronto 123 (iarrett v. Roberts 107 Carton v. Bristol .... 63 Geary v. The Gore Bank .... 57 General Electric v, Victoria Electric 86 Gibbons V. Michael's Bay.... 31 Gibbons v. Tomlinson 188 Gillard v. Bollert 185 Gilmour v. Bay of Quinte Bridge Co 1 15 Gilmour v. Supple 47 Glover v. Coleman I^I Godfroy v. Dalton 43 Godfroy v. Jay 43 Godwin v. Francis 3 (joring V. Cameron 86 Gooderham v. Toronto . . . , 1 30 Goodtitle d.Revett V. Braham 182 Gordon V. Denison 163 (jorden V. Harper 171 Gordon v. Ruirible 141 (iosnell V. Toronto Ry, Co... 124 Goss V. Lord Nugent. . . . 3, 84, 85 Goiigh V. Bench 5 Gould V. P>skine ... 162 Gould V. Johnson 76 (iraham v. Canada Life 28 (irah.im v. Canandaigua 188 (ireen v. Minnes 153 Graham v. Commissioners for Queen Victoria Niagara Falls Park 114 III! M ■ i ; I Xll. TABLE OF CASES. HACK Grant v. Cornock 40 Grant, /^e 2S Grant v Northern Pac. Ry. Co. 64 Gravel v. L'Union St. Thomas 29 Graydon, /^e v. Hammill .... 4 Gray v. Palmers 16 Green v. Burtch 61 Green v. Gosden 71 Gkeen v. Sevin . 86 Greenizen v. Hums i Greer v. Johnston 106 Grey v. Ball 82 Griffith V. Crocker 81 Grinsted v. Toronto R. Co . 116 G.T. R. V. Beaver 66 Guinane v. Sunnyside 186 IlajT^ert Bros, Co., A*e 78 Ifai^ht V. Wortman & Ward . 126 Haist V. G.T.R 70 Hamilton v. Cousineau 140 Hamilton v. (jtoesbeck 126 Hamilton v Pandorf 32, 115 Haubner v. Mirtin 46 Handy v. Carruthers 1S9 Hane.s v. Burnham 1 54 Hanley v. Canadian Packing Co 53 Hardy v. Ryle 167 Hare v. Cawthrope 86 Harrison v. Blades 93 Harrison v. Prentice 162 Hasson v. Wood 114 Hart V, Baxendale 64 Hart V. Windsor 13 Halely v. Merchants' Despatch 3 ^ Hathaway V. D,ii«r 112 Haubner v. Martin 55 Hayes v. Elmsley 7. 85 lleadford v. McClary Manu- facturinc; Co 116 Heaven v. Pender ,. . 113 Henderson v. Bank of Hamil- ton 61, 1S7 Henderson v Squire 1 04 Hendrie v. Neelon 48 Henkel v. Pape 3 FACE Herod v. Ferguson 54 Hess Manufacturing Co., AV . 186 Hett v. Pim Pong 43 Heward v. O'Donohue 78 Hewitt v. Cane 140 Hickerson v. Parrington . . . 190 Higginbotham v. Hawkins... 14 Hill v. Ashbridge 77 Hiort V. Bott 175 Hobbs V. L. & S. W. R. Co.. 66 Hogaboom v. Graydon 185 Holderness v. Lang 15 Holdsworth v. Wise 23 Holliday v. liogan 35 Hoi linger v. C. I'.R 124 Holmes v. Goring 130 Holmes V. Kerriion . . 76 Holmes v. Mather 117 Holroyd v. ^Larshall 173 Hope v. White 158 Ilorsfall v. Boisseau 185 Howard v. Lancashire ...'.. 27 Howard v. Shaw 12 Howard v. Tucker. 31 Ilowarth v. McGugan 115 Howells v. Landore Steel Co. 126 Hul)er V. Crookall 1 43 Humphrey v. Archibahi 167 Himter v. Carrick 137 Huntington v. Attrill 187 Huntley v. Russell 14 llurdmin v. Canada Atlantic R. W 115 Hussey V. iiorne Payne -/erts 89 Metropohtan R. Co. v. ^u^hiAdd. Mewhiirn v. McKelcan 104 Middlesex v. Sniallman . . . . 35 Midland Ry. Co. v. Ontario Rolling Mills 85 Millar V. I'liuiuner 20 Miller v. Brown 82 Miller v, McTaggart 107 Miller V. Newman 49 Miller v. Rice 174 Miller V. Ryerson 75 Milloy V. G.T.R 64 MillsoM V. Small 75 Miner v. Oilmour 131 Mingeaiid v. I'acker 28 MirisliiiU V. Oakes . . 103 Misener v. Michigan Central Ry. Co 124 Mitchell V. City of London Ass. Co 23 Mitchell V. Darley Main Col- liery Co 127 Mitchell V. Henry 135 Mitchell V. McCauley 100 Mitchell V. Reynolds 74 Moens V. Hay worth 71 Molsons Bank v. Heilig 34 ^lonteiih V. Walsh 86 Montgomery v. Spence 99 Moore V. Biichner 41 Mooers V (iooderham & Worts 38 Moore v. Kane 83 Moorhouse v. Hewish 8 Moot V. Ciihson 90 Morley v. Attenborough 35 Morris v. Dinnick . . 45 Morris v. Williams loi Morrow V. C. T. K 116 Mucklow V. Mangles 172 Munsie v. Lindsay , 15 Murray v. Reg 56 PAGE McCafTrey v. McCaffrey 89 McCall V. Theal 134 McCallum v. Snyder 158 McCaskill V. Rodd 158 McCann v. Chisholm 127 McCarthy v. Cooper 3 McClary v. Jackson 102 McCausland v. Quebec Fire Ins, Co 26 McClellan v. McCaiighan.. 2 McCloherty v. Gale 1 26 McCuUou^li V. Clemcjw 188 McCiung V. McCracken 2 MtCullough V. Newlove 56 McDonaKl v. Biennan 13 McDougall V. Ridoiit lOO McFwan v. Milne 89 Mcl'arren v. Johnson 3 Mciieachie V. Norili American 28 McCibbon V. Northern 1 19 McCdlivray v. .Mimico Real Estate Co 104 McCowan v. Middleion 86 McUmurray v. Jenkins 130 Mcintosh V. Moynihan 2 Mclntyre v. Faubcrt 2 Mclniyre V. Hockm 45 McKay v. Biuce 187 McKay v. Grinley 61 McK.iy V. Noiwicii 26 McKelvin V. London 1 16 McKenzie V. Dancey 32 McLaren v. Canada Central, . I19 McLaughlin v. Moore 39 McL.iy V. Bruce 155 McLellan v. Winston 56 McManus v. Crickelt 117 Mc>L\sler v. Geddes 60 McMichael v. Wilkie 4 McMullen v. Williams 38 McNab V. Dysart 1 10 McNab V, Wagstaff. 57 McNamara v. ^>kain 56 McNamee v. Toronto 56 McKibbon v. Feegan 28 McEwan v. McLeod 32 TABLE OF CASES. XV. PAGB ... 89 . . 134 . . 158 i5« . . 127 . . . 3 . . . 102 'irt 2 , , 26 n. 2 126 • • . 188 • • • 2 . ■ • 56 . . . 13 • ■ ■ 100 . • • 89 . . 3 car 1 28 119 1 104 86 . . 130 . . 2 . . • 2 . • 45 187 . , 61 , , 26 , , 116 . . 32 1, 119 . t . 39 . . 155 • . • 56 , , • 117 , , . 60 , . 4 . • . 3« , . . no . . . 57 , . ■ 56 , • • 56 , , . 28 . , ■ 32 PAGK Nason v. Armstrong 4 Neal V. Ervinj; 21 Neelon v. Toronto 56 Neilson v. I fists Corporation 28 Nelson v. Whittall 93 Newcombe v. .ViKiersoii 62 Newton V. Allin 98 Nicliols.ni V. Kevill . 83 Nichols V. rilnian 134 Nixon V. Ci. T. R I2^ Nol)Ie V. Ward 84 Nordheimer v. Alexander ... 1 16 North American v. Crai<;en . , 27 Norih-Wesl Transport Co. v. ^lcKenzie Ai/;/. Norton v. EUam 76 Noxon V. Noxon 138 Niuin V. Brandon . 1 53 O'Brien v. Sanford 1 26 O'Connor v. Hamilton Bridge Co 126 O'Donohue V. Whitty 43 O'llara V. Dougherty 140 Oidright V. G.T.R 124 Oliver v. Lockie . . 1 32 Oliver V. Mcl>aiighlin 190 Oliver V. I'owell 180 Ontario v. O'Dea 98 Ontarii) VVe-lern Lumber Co. V. Citizens' E. Co 56 Ord V. I'ortall 18 Ormond v. Holland 125 Owen V. Taylor 159 Paisley v. Broddy 70 Bai,-.ley v, Wilis 7 I'almutier v. Mclvibbon 1 30 Panama Mail Co. v. Kennedy. 71 Park V, While log Parker, /n fe 189 Parker V. Parker 185 Parkinson v. Lee 36 Partho V. Todd 135 Partridge v. Scott 127 Pasley v. Freeman 138 Paterson v. (iandassequi 51 Patrick v. Milner 5 PAGE Patton V. Laidlaw 81 Pavey v. Davidson 188 Pearce v. Sheppard 114 Pearson v. Spe:icer 129 Peck V. F'owell 7 Peers v. Byron 9^ People's Loan v. Grant 188 Petrie v. Hunter. 5^ Penny v. Foy 1 06 Penruddock's Case 1 10 I'euchen v. Imperial Bank. ... 35 Peuchen Co. v. City Mutual Co 20 Phene v. P()pj)lewell 98 Philips V. Mai tin 4d./. Phcoiiix V. Anchor 24 I'ickfortl V. Grand June. R. Co. 63 Pierce v. Canada i^ermanent. . 82 I'igot's Case 70 Planche v. Colburn. 54 Poll V. Hewitt 116 Port Elgin V. Eby 35 Porter v. Hale 189 Potter v. Kinkin 22 I\)tts V. Temperance & General 28 Prescott V. Connell 1 15 Price v. Lloyd lO Price v. Moalton 80 Priestly v. Fernie 51 Radford v. M.icdonald. , 185 Ramiall v. Dopp 190 Randell v. T imen 39 Ratle v. Booth 186 Ray v. Ishister 17 Read v. G.E. R. Co 1 27 Reed, A'e, v\: Wiison 188 Reg. V. Cosby . , i 29 Reg. v. Chesley 106 Reg. V. Doty 163 Reg. V. Rawson y}i/(^. Reg. V. Somers 74 Reignolds v. Edwards 130 A'e Union Assurance Co. v. Lang 26 Reynolds v. Jamieson 40 Reynolds V. Roxburgh 37 Richard V. Stillwell 34 XVI. TABLE OF CASKS. li ! I I ! r I'AGK Rivers v. Griffiths 88 Roberts v. Bethell i6 Robertson v, Burrill 77 Robertson v. G.T, R 64 Robertson v. Lonsdale 20 Robertson v. Pugh 24 Robertson v. Skelton 5 Robinson v. Bogle 135 Robinson v, Harris 4, 5 Robinson v. Owen Sound .... 56 Roche V. Ryan 130 Rochleau v. Bidwell 2 Roe V. Lucknow 113 Roberts v. Mitchell 113 Roberts v. Bank of Toronto. . 190 Rogers v. Devitt 167, 185 Rogers V. Ontario Bank 187 Rogers v. Toronto Public School Board 113 Rodgers v. Hamilton Cotton Co 116, 126 Rolin V. Steward 61 Rolfe V. AV)bolt 52 Rose V. McLean 135 Ross, Re 58 Ross V. Hunter 82 Ross V. Bucke 154 Ross V. Orr 185 Routledge v. Ramsay 80 Rowley v. London «S: N. W. Ry. Co 120 Rushforth v. Had field. .... 177 Ryall V. Rich 105 Ryan v. Fish 1 70 Samuel v. Fairgrieve 20 Saner v. Bilton 86 Sanderson v. Burdett 5 Sangster v. T, Eaton Co 113 Saunders v. Breakie 15 Sawyer v. Pringle 53 Sawyer v. Thomas 82 Sayles v. Brown 71 Scane v. Duckett 42 Scaramanga v. Stamp 32 Scarlett v. Nattrass 90 Schmidt V. Town of Berlin ... 114 l'A(}B Schrader v. Lillis 74 Schullz V. Reddick 157, 158 Scottish American v. Sexton. . 187 Scott V. Liverpool 56 Scott V. London & St. Cathar- ine Docks Co 113 Scott V. Reburn 165 Scott V. Scott 28 Seagrave v. Union 22 Sears v. Lyons 169 Seldon v. Buchanan 98 Severin v, Kepell 176 Shannon v. Toronto 185 Sharp V. Powell ill Shejipard v. Bonanza 186 Shore v. Shore. 186 Shuttlewor' 1 v. Shaw 98 Sibbald V. C.T.R 123 Siddons w Short 128 Simmonds v. Parminter 18 Simmons v. Simmons 29 Skilitzskey V. Cranston 130 Smiles ' . Belford ... 133 Smith V. Ashforth 157 Smith V. Baker 116 Smith V. Chance 49 Smith V. Goldie 137 Smith V. Jamieson 40 Smith V. McGugan 45 Smith V. Marrable 13 Smith V. McGuire 31 Smith V. Peat 103 Smith V. Tennant 7 Smith V. Thome 80 Smith V. Young 176 Smythe v. Anderson 51 Snarr v. Baldwin . 104 Snarr v. Granite 128 Sombra v. Chatham 1 15 Southwick V. Hare 164 Sommerville v. Rae 71 Staebler v. Zimmerman 185 St. Denis v. Higgins 8 Stephens v. Beatiy 76 Stephens v. Elwall 176 Stephenson v. Bain 5 TABLE OF CASES. XVll. f'AOB 74 ..157, 158 cton.. 187 .. .. 56 athar- '13 165 28 22 . . 169 98 . 176 185 Ill 186 186 98 123 128 18 29 . . . . 130 133 .... 157 116 ■ • • 49 ^37 40 . ... 45 ... 13 ... 31 ... 103 7 .... 80 .... 176 .... 51 ... 104 .... 128 .... 115 164 .... 71 .... 185 ... 8 .... 76 .... 176 .... 5 rA(;E Stephenson v. Davis 5,7 Stewart v. London & N.W. Ry. Co 67 Stewart v. Woolman . 190 Still V. Ilalford 41 Stimson v. Block 170 Stinson v. Magill 100 Stinson v. Pennick 26 Stone V. Marine Ins. Co 22 Stooke V. Taylor 85 Stovel V. Gregory 77 Street v. Blay 47 St. Thomas v. Yearsley 71 Sturgeon v. Wingficld 97 Sturges ' Briflgman 109 Sullivan V. McWillinm 118 Summerfeldt V. Worts 73 Swain v. Lewis 1:81 Sylvester v. Murray 2 Tancred v. Leyland 156 Tenute v. Walsh 72 'i'arliiig V. Baxter 171 Tarrant v. Webb 125 Taylor v. Bank of New South Wales 34 Taylor V. Brandon Mfg. Co .. 137 Taylor v. Chester 72 Taylor V. Massey 154 Taylor v. Regis 186 Tennant v. Gallow 190 Thomas v. Crooks 9 Thomas v. Evans 87 Thomas V. (^uartermaine .... 116 Thompson v. Fowler 32 Thompson v. Eede 34 Thompson v. G.T.R 124 Thompson v, Wright 126 Thomson v. Davenport 51 Thorley's Cattle Food Co. v. Massam 143 Tiffany v, McNee 190 Tilley v, Thomas 5 Tipping V. St. Helen's Smelt- ing Co 1 10 Todd V. Dun Wiman 154 Toleman v. Portbury 102 l'AC;K Tomlinson v. Morris 38 Topham v. Dent 168 Toronto Drop Forge Co., AV.. 55 Toronto v. Lorsch no Toronto Ry. Co. v. Toronto 1 24 Taillifer V. Taillifer... ... 187 Tracy, In Re 61 Trebilcock v. Walsh 60 Trent Valley Manfg. Co. v. Oelrichs & Co 53 Trevelyan v, Myers 188 Trimble v. Lanktree 53 Trimble v. Miller 16 Truman v. Rudolph 126 Trust & Loan v, Stevenson . 78 Turner V. Burnes 74,189 Tweddle v. Atkinson 90 Tyrrell v. Senior 189 Union Assurance Co. v. Lang 26 Urquhart v. Macpherson.. . . 59, 83 U. S. Exp. Co. V. Donohoe. . 59 V^anDieman v. Victoria .... 19 Vaughan v. TafT Vale Ry. Co. 119 Vickers v. Wilcocks 65 Vogel V. G.T.R 64 Wade's Case 87 Wakelin v. London & S.W. K. Co 115 Wakefield Co. v. Hamilton Co. 186 Wallace v. Harold 12 Ward v. Caledon 110 Ward v. Morse 86 Ward v. National Bank of New Zealand 34 Washington, Re 44 U'atson v. Threlkeld 52 Waterous v. McCann 2"} Waynam v. Bend iS Webb v. Barton Stoney Creek Road Co 114 Webb V. Marsh "] t^ Webb V. F'airmaner 52 Weegar v. G.T.R 123 Weese v. Banfield l^^Ti- Weir v. C.P.R 116 Wells V. Abrahams 60 ^ ll I'J ' I I! \< XVllI. TABLE OF CASES. I'AGE Wells V. Lindup 154 West V. Blakeway 84 Western Assur.v.Ont. CcalO). 25 Western Counties v. Lawes Chemical 153 Western v. Scanlan 25 Wettlaufer v. Scott 53 Wheeler v. Montefiore 168 White V. BrifTgs 14 White V. Sage 7 1 » 1 39 Whynan v. Garth 92 Wicher v. Darling 74 Wilks V. Atkinson 48 Wilkinson v. King 173 Williams v. Earle 101 Williams v. Richards 132 Williams v. Thomas 170 Willis V. DeCastro 83 Wilmot V. Stalker 2 Willoughby V. Kackhoiise 84 Wills V. Carman 153 Wills V. Carman 154 Wilson V. Finch Hatton 13 Wilson V. Fleming 9 1 lAOE Wilson V. Rykert, 80 Wilson V. Tennant 140 Winfield v. Kean 140 Winterbottom V. Ingham... . 12 Winterlxjttom v. Loid Derby. 109 Wisner v. Coulthard 137 Witham v. Kershaw 14 Withy V. Cottle 5 Wittrock V, Hallinan 96 Wolfenden v. Wilson 55 Wood V. Keesor 1S5 Worthington v. Peck 35 Wrayton v. Naylor 9 Wray v. Morrison 127 Wright V. Court 166 Wright V. Collier 1S7 Wykl V. Pickford 65 Wynne's Case 94 Wythe V. Manufacturers 29 Yarwood v. Hart 40 Young V. Midland 78 Zilliax V. Deans 1 90 Zimmer v. (i.T. R 78, 127 llili 11 lAGE So 140 140 11... . 12 3erl)y. 109 137 14 5 96 • • • 55 .. .. 1S5 ••• 35 9 '27 166 I'S; 65 94 29 40 78 1 90 ■■7.S, 127 ADDENDA. (p. 2) CONTRACI HY CORKESPONDKNCK. Where the Court has to find a contract in a cor- respondence and not in a note or niemorandiini the whole of what has passed between the parties must be taken into consideration. Hussey v. Home Payne, 4 App. Cas. 311. North-West Tramp. Co. v. McKenzte, 25 S.C.K. 40. (p. 4) SAI.E ok RKAL I'ROIMiRTY. Armstroncr v. Nason, appeal allowed, 25 S.C.R. 263. Objection not taken in time, and not going to root of title. (p. 25) Western Ass. Co. v. Ont. Coal Co. is found in 20 A.R. (not O.K.) (p. 27) Manufacturers' Life v. Gordon, same cor- rection. (p. 28) For Beam v. Merner read Beam v. Beam. (P- 34) GUARANTKE. As a written memorandum of an oral guaranty is required only for the purpose of evidence a letter or other writing subsequently given by the guarantor sufficiently showing the terms of his undertaking will suffice. Thompson v. Eede, 22 A.R. 105. (p. 77) For " Ont. Acts, 1895," read ** Ont. Acts, 1893." (p. 173) For ** Horloyd "' read " Holroyd." ii ^^ llii'i ■' m juratores erraverint^ jiistuiarii se(/ni noii dehent eorum (iufiim seJ ilhiin emeudarc trniniur per diHi^cnteiit cxaniinationefiu Si auttni iiiJHdicarc ncsciant rt'atrn )idutii erit ad niajus Judiciitm. — Hkacion. The case was tried l)y a judge without a jury, and the position of a Court of Appeal in such a case as distinguished from a cas^ tried with a jury is clearly pointed out by Bramwell, H., in the case n\ Jones v. IIoui:,h (5 Ex. D. 122), in these words: — A great difference exists between a finding by a judge and a finding by the jury. When the jury find the facts the Court cannot be substi- tuted for them, because the parties liave agreed that the facts shall be decided by a jury ; but when the judge finds the facts, then the Court of Appeal has the same jurisdiction that he has, and can find the facts whichever way they like. Merritt v. Hcpenstal, 25 S.C.R. p. 152 (Sir Henry Strong). A verdict ought not to be disturbed as being against evidence, un- less it is one which a jury viewing the whole of the evidence reasonably could not properly find. Philips \. Martin, 15 App. Cas. 193. Metropolitan A'. Co. v. IVri^i^ht, 1 1 App. Cas. 152. (Quoted in Nordheimer v. Alexander, 19 S.C.R. at p. 265. F»ARX I. ACTIONS OX SIMPLE CONTKACTS. ///// (/iitiiiii Si autem iRAClON. jsiiion of a tried with of /ones V. id a finding be suhsti- Is shall be the Court d the facts rlence, un- feasonably 65- ACTION ON SALL: OF REAL PROPERTY. This action may be brought either by vendor against vendee, or by vendee against vendor. It includes claims for specific performance of contracts of sale, and is often met by a counterclaim for re- scission of the alleged contract. It frequently ends in a reference as to damage sustained by aggrieved party. VENDOR ACIAINST VENDEE. in an action on sale of real property by vendor against vendee on purchaser's default, the plaintiff must prove : 1. The contract. 2. The performance by himself of all conditions precedent. J. The default. .Is to proof of the contract, the provisions of the Statute of Frauds (29 Car. II,, c. 2, s. 4) must be borne in mind. A defence under this statute must now be pleaded specially. Greenizen v. Hums, 13 A.R. 481. When it is so pleaded it will be necessary to prove a contract in writing. See Cleaver \. North of Scotland M. Co., z'j Chy. 508. A question often arises as to what, is an '' interest in or concerning" land, etc., within section 4 of above .\ct. Ill 3 SALIC 01 Kl.AL I'KOPliKTV. The note or incmoraiidiirn required by the statutr must be in writing, and signed by the party to bt charged therewith, or some other person by him law- fully authorized. Subject, terms, and names of the parties must appear. An acceptance in writing; by the owner of land of a written offer therefor addressed to liini, hut unsij^ned by any purchaser, and without any purchaser beinj; named or in any way described (herein, is not r, sufficient rnemoranchini to satisfy the statute, and does not fyecom- binding upon him when a purchaser is subsequently found who sign- the offer. Mcintosh V. Moyuihau, i8 A. K. 257. Sheriff as assignee for creditors signed a memorandum of sale ; hehl, not an agent for both parties. Mi/iilyie V. /'iiuhrri, 26 O. K. 427. .Selling under an execution he is agent for both, Flintofts. Elmore, 1 8 C. T. 274. As to auctioneer, see Ri\s[. V. Kmvson^ 22 O. R. 467. A conditional promise to purchase land ma\- be enforced. Sylvester v. Murray, id O.R. 595, 765. Effect of payment of purchase money to a person not entitled to receive it discussed. McClcllan v. McCaughan, 23 O.R. 679. As to names, see Wilmot V. Stalker, 2 O.R. 78. Cameron v. Spiking, 25 Chy. 116. As to terms, see Devine v. Grijfin, 4 Chy. 603. It is not necessary that the names or terms should appear in any single paper. The contract may bt collected from several connected papers. Rochleau v. Bidwell, Dra. 345. Kennedy V. Oldham, 15 O.R. 433. The connection ought to appear on the papers, and not by intrinsic oral evidence only. McClung v. McCrackcn, 3 O.R. 596. SALi:. OF KLAL I'KUriiKTV. he statiit» irty to be /him law- iics of tlu writlen offci •, and withoir icin, is nol r, 5 not hecom- nd who sign^ of sale ; held, When a projiosal is made in writing hy one party and accepted by the other, either verbally or by act- id may be '65. a person t79- 6. Ims should :t may bt e papers, 6. 'ft mg upon it, tile contract is a written one Ellis V. A hell, 10 A.K. 226. An agreement good under the Statute of b'rauds can, it st.'ems, be wholl}' rescinded, but cannot be varied by a subsequent oral agreement. Goss V. Lord Sii^cut, 5 ]>. cV A. 58. The person authorized by the part}- to sign need ■'(A be authorized in writing. As to telegrams, see Godwin v. Francis, L.J. 5 C.P. 295. Hcnkcl v. Vapc, L.J. 6 Lxch. 7. Mcluirrcn v. Johnson, 6 O.K. 161. McCarthy v. Cooper, 12 A.R. 284. Where there has been a part performance of a con- tract falHng within the provisions of the Statute of Frauds (sec. 4), although there is no written note or memorandum of the agreement, as required by the section, specific performance will be ordered. Alderson v. Maddison,S App. Cas. 420. Campbell v. McKerrichcr, 6 O.K. 85. Coates V. Coates, 14 O.K. 195. The Courts will enforce the contract where the absence of a written memorandum is caused by fraud. The plaintiff must next prove perforuiance of con- ditions precedent. Wh(}re a party offers an estate for sale without qualification it amounts to an assertion that he is seized of an absolute estate in fee simple, and he undertakes, in the absence of express stipulation, to convey that estate. Where, therefore, there is a mere agreement by A. to sell and by H. to purchase, with no conditions, it is l^.'s right to have a good ,T.. ,, -^. H I! I ! 4 SALE OF REAL PROPERTY. title made out for him by A., and it is his ri^ht to have that title sifted for him to the bottom. In cases of that kind the vendor must produce an abstract of title, and the vendee is entitled to make objections to or requisitions thereon, and until a full and perfect abstract is linished the vendee may object or require further iuformation. If, on the abstract, it is absolutely out of the power of the vendor to make a good title the purchaser may at once rescind. Parties may by their conditions waive their right. See JVasoitw Anitstroug, 21 A.R., at paf^e 191. The implied obligation to pay otf the enciiml)rance which in the case of a conveyance of land to a person '^ni juris is imposed by a court of equity is not enforceable against a married woman. It can- not be said to be a contract or promise in respect of separate property. McAfichac/w IVilkie, 10 A, R. 464. J''rontage rales are encumbrances which vendors must remove. Re Graydon v. //am mil/, 20 O.R. 199. Ciniihcr/aiid \. Kearns, 17 A.R, 281. \{ the vendor's title be put in issue, he must prove it. This is generally done on reference. The Court refers the question of title to the Master to report upon, reserving costs until he shall have made his report. See Vendors and Purchasers Act (R.S.O., 1887, c. 112) and the Act respecting the laiv and transfer of property (R.S.O., 1887, c. 100), and also the provisions of the Registry Act as to the effect of registering. These enactments have rendered evidence of title more simple. To entitle a purchaser to disavow a contract on the ground that the title to the land is not in the vendor he must repudiate promptly on discovering that fact, and if he subsequently thereto treat the contract as binding he will be held to his election and be remitted to the rights of an ordinary purchaser, including that of terminating unreasonable delay by a sufficient notice, Robinson v. Harris, 21 O.R. 43. Delays caused by the state of the title do not, unless there has been in SALE OF REAL PROPERTY. right to torn. In )duce an to make ntil a full dee may ;f, on the er of the r may at leir right. )i. \hich in the nposed by a an. It can- ate property. emove. ust prove "he Court to report made his ., 1887, c. rawifer of rovisions Gfisterinf^. of title )und that the promptly or. tlie contract to the rijjht' unreasonal)K has been ir. addition some {^ross nct;liycnce or inisconthict, amomU to wilful default. Stfi'fiison V. Davis, 23 S.C.R. 632. When a day is fixed for completion, unless the vendor make out a good title b}' that day the pur- chaser was at law entitled to rescind the contract ; but not so in equity, which now prevails. Stevenson v. Davis, 23 S.C.R. 631. The equitable principle doe.-; not apply where the property fluctuates ill value from day to day, as in the case of a life annuity. iru/iy V. Co/He, Turn, c*v: R. 78. See also SanJerson v. Biirdett, 16 Chy. 119. or of a reversion, PiXtriik V Milncr, 2 C. IM>. 342, nor where property is bought for the purpose of residence, Tilleyw Thomas, L.J. 3 'Jhy. 61. See also Crossjii'/d w Gould, A. R. 218. This presun.ption is rebutted by the parlie-; treating the contract as still subsisting after the time fixed for compleiifir,, l\obi)ison V. Harris, 2 1 O.R. 43. An averment of readiness to convey is negatived by proof of a defective title, for it negatives ability to convey. De Medina v. Novman, 9 M. t\: \V. 820. Accidental deterioration after the date of the con- tract is a loss which must fall on the vendee. Robertson v. Skclion, 12 P)eav. 260. See also Stephensoji v. Bai}i, 8 P.R. 258. The Court has cognizance of all the rights of all the parties arising out of an agreement : and if either is entitled to damages the Court ought to ascertain them. Casey v. Hanlon, 22 Chy. 445. See also Ledyard v. McLean, 10 Chy. 139. Goui^h V. Bench, 6 O.R. 699. As to costs, the ordinary rule in a vendor's suit is O SALE OF REAL PROPERTY. that the costs are given against hitn up to the time when he has first shown a good title ; but where the question as to title is not the chief matter in dispute the costs will follow the result. Laird v. Paton, 7 O.R. 137. The plaintiff i? entitled to his costs if he offered a possessory title before action, even if he did not prove it until after. Dame v. Slater, 21 O.R. 375. When the price is payable by instalments the pur- chaser of land has a right to have a reference as to title, and to have title manifested before he makes a single payment. Cameron v. Carter, 9 O.R. 420. Since the Judicature Act there seems to be no substantial distinction between a vendor's action to recover his purchase money, and a vendor's action for specific jierformance where the purchase money sought to be recovered is payable, as in McDonald v. Murray (ll A.R. lOl), contemporaneously with the delivery of the conveyance. But where the action is brought for the recovery of instalments p.iyable by the terms of the contract before the time for completion has arrived the vendor appears entitled to judgment for them unless some equitable ground of relief is shown, as, for instance, the existence of incumbrances or some defect in the title. Where the only objection is the existence of incumbrances to an amount not exceeding the purchase money, the overdue instalments should be paid into Court, and the same rule should in general govern where there are defects in the title and the defendant is in possession unless he will go out of possession. Armstrong v. .h/i^'cr, 21 O.R. 103. Where a contract is made by one partner for the sale of partnership lands to which the other partner refuses to consent, the purchaser cannot insist upon taking the sha'-e in the lands of the contracting partner, with a proportionate abatemenL of the price. (^raiji V. luipple, 20 A.R. 291. A contract to perform work or to do things for the other contracting party on a sale of lands at a period after the time hxed by the same contract for the .*>■ SALE OV REAL PROPERTY the time 'here the I dispute sessory title the pur- ee as to makes a 1 distinction (i a vendor's loiight to he A.'R. ioi), But where ^ble hy the arrived the e equital)le cumbrances existence money, the rule should e defendant for the partner ;ist upon itracting of the [s for the a period for the execution and final dehvery of the formal conveyance does not become merj:;ed in the conve\ance. S mi til V. Tcnnanl, jo O.K. i8o. If the parties have, before suit, carried out any of the terms of a contract, such executeil portions will not be distm-bed. Peck V. PuK'cll, II S.C.R. 494. As to interest payable by purchaser, see Stevenson v. Davis, 23 S.C.R. 629. Hayes v. Elmslcy, 2^} S.C.R. 623. DKFKXCE.* Denial of contract. The Consolidated Rules require the defendant specihcally to allej^'e in his defence that he relies on the Statute of r^auds, or on fraud, or misdescription. The position of a defendant resisting a claim is more favorably considered than that of a plaintiff Liideavorin^i:^ to enforce an ai^reement, the terms of which may not have been deJhied so as to clearly satisfy the requirements of the statute. Lau-ience v. Ryrin^toii, 21 Chy. 261. Where more than one person is employed by he vendor to bid at a sale by auction, this will be deemed a fraud. See R.S.O., 18S7, c. 100. Other special defences are : Imp^fection of title, defects in subject-matter of contract. A purchaser of land may, on iliscovering that I'ne vendor has no title, repudiate on that t;round ; l)ut attempted rei)ud atinn on another f^round does not keep this right alive, if the vendor al the proper time can made a j^ood title. Pais/eyw Wilis, 18 A. K. 210. A party who enters into a contract for the purchase of land knowing that the person with whom he is contracting does not own the land in if * See ^<>j/ Part II. as to defences available in actions peneialiy. In this Part a •ft few special observations only are made with regard to defences peculiarly appli- '- cable to the action under consideration, 5^ 1 ' I i h'i !i ! 1 : 8 SALE OF REAL PKOPEKTV. question, and that the contract does not bind the estate, but only tht person of the contracting party, cannot set up that the vendor is not the owner so as to repudiate the contract on that ground. .SV. Denis V. Hii^gins, 240, R. 230. Where the misdescription, although not proceed- ing from fraud, is in a material and substantial point so far affecting the subject-matter of the contract that it may reasonably be supposed that, but for such misdescription, the purchaser might never have entered into tlie contract at all, in such case the contract is avoided altogether, and the purchaser is not bound to resort to the clause of compensation. MoorJiousc V. Hewish, 22 A. R. 172. In an agreement for exchange of land it was stated that the pro- perty was subject to a mortgage encumbrance of ^T$o, bearing interest at the rate of seven per cent, per annum. The property was one of four houses and lots, mortgaged for $3,000, with interest at ten per cent., payable half yearly, to be reduced if punctually paid to seven per cent., with an agreement to release each house on payment of $750. Held, not an accurate statement of the mortgage encund)rance. /\V Booth V. McLean, 21 O. R. 452. \ENDEE AGAINST VENDOR. If vendor refuse or is unable to complete his con- tract, purchaser may sue for damages ; or if purchaser has paid a deposit or part of purchase money, and has not taken possession, he may sue to recover hi^ money. So, if fraud is practised, he may rescind and sue for deposit. In a special action on the contract b}- the pur chaser, he nuist prove (i) the contract, (2) the performance of conditions precedent. To enable purchaser to maintain an action for money had and received in order to recover the deposit the contract must be disaffirmed ah initio upon grounds entitling him to such disaffirmance. When plaintiff seeks to recover the deposit he must prove pa\'ment to defendant or defendant's % SALE OF REAL PROrHRTV J, but only tht idor is not the t proceed- ntial point e contract it, but for never have 1 case the jrchaser is ensation. that the pro- earing interest y was one of ?st at ten per paid to seven >n payment if encumbrance. e his con- purchaser oney, and ecover his scind and the pur (2) the iction for cover the ab initiii inance. eposit \\(: ■fendant's agent. Where the contract is oral he can recover deposit only, but no damages. In other cases he may get the deposit with interest and expense of investigating title, etc. Fayquhar v. Farley, J Taunton 592. Wrayton v. Naylor, 24 S.C.R. 295. If the purchaser has taken possession of the premises under the contract, he has adopted the con- tract, and cannot disaffirm it afterwards by quitting the premises. His remedy is then on the contract itself. Blackburn v. SuiitJi, 2 Ex. 783. Where, on a sale of land, there has been a con- veyance perfected, and the seller having no title the purchaser is evicted, unless fraudulent misstatement or concealment is made out, there can be no action except on the covenants, and where there are no covenants, or none that will extend to the cause of action, there can be no action against the vendor. Thomas v. Crooks, 11 U.C.K. 579. The purchaser is not in general entitled to recover " fanc}' " compensation where the vendor is, without fraud, incapable of making a title. Bain v. FotIicr<^nll, ' L.R. 7 H.L. 158. W^hcre, however, tlie sale does not go off for want of title, but by reason of the refusal of the vendor to take the necessary steps to give possession, the plaintiff can recover damages for the loss of the bargain, the measure of damages being tiie difference between the contract price and the market price at the time of the breach. (S.C.) Where the contract contains a variety of stipula- tions of different importance, and one sum is stated to be payable on breach of performance of any one of them, then, though it be called liquidated m^ I ' I l!i llil > I! ^il !ii # I! '!!!! 10 ISE AND OCCl'I'ATION. damages, it is in reality a penalty, and the actual damage sustained is alone recoverable. Ex parte Capper, 4 Ch.D. 724. Loss of profit occasioned by, and the expenses which a purchaser ni lands has been put to, on a resale by him, unknown to his vendor be fore such purchaser has entered into a binding contract for purchase, are not damajj;es naturally flowinff from the breach of the latter agree- ment, and cannot be recovered by him a[:jainst his vendor. If recover a!)le at all, the true measure would l)e the increased value of the land at the time of the breach over the purcliase money. I.oiteyw Oliver, 21 O.K. 89. Withdrawal of offer. /.a?kiii\. Garc/iner, 2y O.K. 124. ACTION FOR USE AND OCCUPATION. r^ounded on ii Geo. II., c. 19, s. 14.* This is a form of action on the case, based on the relationship of landlord and tenant. Action of debt for rent on a contract for use and occupation lies at common law, and not on this statute. The plaintiff proving a legal title to the premises, and a mere naked possession by the defendant, is entitled to a verdict. He need not prove an attorn- ment or contract between himself and defendant. Price V. Lloyd, 3 U.C.R. 120, In Clcndinniiiij^ v. Turner, g O.K. 34, a defendant counterclaimed for use and occupation against :i plaintiff. He was held not entitled on the evidence. If defendant has come in under plaintifl', or has acknowledged title by payment of rent or otherwise, ' The section is as follows : — It shall be lawful for landlords, where the agret ment is not by deed, to recover a reasonable satisfaction for the lands, tenemenf-, or hereditaments held or occupied by the defendants in an action on the case for the use and occupation of what was so held and enj lyed ; and if, on the trial of sucl; action, any parol demise or any agreement (^not being by deed) whereon a certair. rent was reserved shall appear, the plaintiff shall not, therefore, bs non-suited, Inn may make use thereof as evidence of the (|Mantum of damages to be recovered. rSE AND OCCUPATION r r d the actual ■4- ich a purchaser ut to his vendor be act for purchase, the latter ai;[ree- itliir. If recover value of the land O.K. 124. PATIOX. based on the for use and not on this le premises, efendant, is kC an attorn - efendant. a defendant n against a he evidence, ntiff, or has )r otherwise, , where the agret -t lands, tenements, 1 on the case for tht- n the trial of such wher«»ori a certaii; l)i non-suited, Inn lie recovered. • he cannot dispute plaintiff's title, but he may show it has expired. In general, title of plaintiff is established by the production of writing,' or a^^reenicnt, which is proved in the usual manner; but if there be no actual lease or agreement, the plaintiffs title maybe established by evidence of the defendant havin;^^ paid rent to him or submitted to a distress. Notice to produce receipt for rent, or the notice of distress, should in such cases be given by the plaintiff. If it appear from the plaintiff's witnesses that defendant holds under a writttni agreement not pro- duced, plaintifl' will not be allowed to give oral evi dence of the holding ; but if plaintiff has made out a prima facie case, .'ind the defendant seeks to show that he holds under a written agreement, he must produce the instrument, or his objection is untenable. There must be an occupation or holding, actual or constructive ; therefore a tenant who has agreed to take premises, but has not entered, is not liable to an action for use and occupation. It is prima facie sufficient for the plaintiff to prove that the defendant did occupy the premises, and the continuance of the occupation will be presumed until the contrary appears. Although the premises are burned down and remain unoccupied, unless it be agreed that the liability shall cease after the Hre, the tenant still continues liable in this action for the rent sub- sequently accruing, for the premises continue to be " held " by the defendant. Baker v. Holtzapfel, 4 Taunt. 45. The fact of the premises having been insured, and the landlord having received the insurance money 12 USE AND OCCUPATION. ill il 11 and not applied it to reinstating]; the premises, aftbrds no equitable defence to the action. Lofft V. Demm, 28 L.J.Q.B. 168. If, after the determination of a lease, the tenant holds over and pays rent, such holding over and pay- ment of the rent are conclusive evidence of a tenancy; and he will be liable in an action for use and occupa- tion for the time that he occupies the premises. Bishop v. HoK'cird, 2 B. cS: C. 100. It is not necessary that there should be an express contract creating the relation of landlord and tenant between the parties ; the relation may be implied. Thus where the defendant has entered under a con- tract for sale, which ultimately goes off, and his occupation has been a beneficial one, he may be liable in this action, but only for the period since the putting an end to the contract. Howard v. Shaw, 8 M. cS: W. 118. W intcrhottoui v. Iiif!^ha}>i, 7 Q.B. 5ii. Bur rotes v. Gates, 8 U.C.C.P. 121. Where rent is mentioned in the lease or agree- ment, such rent will be the measure of damages ; but where there is no lease, the value of the premises must be proved. Executors may sue for use and occupation of testator's land during his lifetime, but not where the agreement has been that the tenant should pay in produce, not money. Wallace v. Harold, 23 U.C.R. 279. db:fence. The defendant may rely on termination of tenancy, either by expiry of landlord's title, or notice to quit, or eviction, or the bringing of an action for posses- sion of premises for a forfeiture, or payment, or that WASTE, BAD HUSBANDRY, KTC. 13 tile premises have been knowingly let for an immoral purpose. Where it is quite evident that defendant did not occupy under the plaintift^ or with his permission, either express or implied, but under a third party, the plaintiff will be non-suited. McDonald v. Brennan, 5 U.C.R. 599. The defendant in the case of a ready-furnished house may rely \\\)on the defence that there has been no beneficial occupation, whether by reason of the house being infested with vermin, SniitJi V. Mavvablc, 11 M. c\: \\\ 5, or of defective drainage, Wilson V. Finch Ilatton, 2 Ex. D. 336. The tenant may give up occupation, and then ceases to be liable to pay rent. Not so in the case of an unfurnished house. Hart V. Windsor, 12 M. & W. 68, 86. The Statute of Limitations is a good defence in an action against a person who has been tenant from }-ear to year, but who has not, within the last six years, occupied the premises, paid rent, or done any act from which a tenancy may be mferred, though no notice to quit has been given. Leigh V. Thornton, i B. & A. 625. If landlord has distrained, and retained the dis- tress, though insufficient in amount, he cannot main- tain the action. ACTION FOR WASTE, BAD HUSBANDRY, ETC. ::li Action for waste lies on a contract not under seal, express or implied, and is in some cases founded on M WASTI<:, HAD HUSBANDItV, HTC. wrong, indepeiulent of contract, arising out of the relation of landlord and tenant. In the former case the plaintiff ^'ust prove the contract, and the acts complained of which form the violation of the con- tract. In the latter case the plaintiff will have to prove the demise, the breach of covenant, and in both cases the damage. The general rule as to waste in common law is, that in order to constitute it there must be a diminu- tion of value of the estate by it, or an increased burden upon it, or an impairing of the evidence of title. Huntley v. Russell, i] Q.h. ^72. The right of a remainderman to sue tenant for life for waste arises when the waste is committed, and the Statute of Limitations then begins to run. Hi^f^inbotham v. Hazckius, L.R. 7 Chy, 676^ In this action the defendant is entitled to the ver- dict unless the damages are substantial. Doherty v. Alhnau, 3 App. Cas. j^^. The measure of damages is the diminution of the value of the reversion, less a discount for immediate pa3ment. Witham v. Kershaw, 16 Q.B.D. 613, C.A. Where the intention of the testator requires that an estate, devised in terms larger than a mere life estate, shall be cut down to a life estate in order to give effect to other conflicting dispositions of the same property, there the Court will deal with such a life estate as one unimpeachable for waste. In this case White v. Bri^}^s, 2 Phil. 583, distinguished, and life tenant held liable for waste. Clow V. Cloiu, 4 O.K. 355. Protection of contingent mterest, 17 S.C.R. 343. , A tenant for life in this country may cut down WASTK, BAD HTSBANDRY, ETC. 15 timber in the proper course of j^ood husbandry, in order to brin;^' the proper proportion of the land under cultivation, and perhaps destroy such timber ; but he cannot cut down timber even for the same purpose and sell it. Saunders v. BycakiCy 5 O.R. 603. A tenant who for the purpose of rendering the land more ht for cultivation collects the stones there- from has the property in the stones, and the land- lord has no interest in them, and is liable for their value if he disposes of them. Li'K'is V. Godson, 15 O.R. 252. A tenant in common is not liable to his co-tenants for cutting timber on the common property. Munsic V. Lindsay, 10 P.R. 173. If the reversion be not injured by the acts com- plained of, there can be no waste and no forfeiture. Holdcrncss v. Lang, 11 O.R. i. Crawford v. Biiij^<^, 12 O.R. 8. It is not waste in a tenant for life to cut down timber on wild land for the sole purpose of bringing it into cultivation, provided the inheritance be not damaged thereby, and it is done in conformity with the rules of good husbandry. Drake v. Wigle, 24 U.C.C.P. 405. Cooke V Edwards, 10 O.R. 341. It is a question for the jury to find if the acts complained of amount to a breach of the covenant not to commit waste. Campbell v. Shields, 44 U.C.R. 449. The obligation to good husbandry arises either by contract or mere relation of tenant, not with us from local custom. As to custom see Burrowes v. Cairns, 2 U.C.R. 288. followed in Jf) HILLS AND NOTES. I' ^H Kaatz V. White, 19 U.C.C.P. 36. As to proof of breach of coveiKint to repair or to use good luisbandr)-, see post under covenants. ACTIONS ON HILLS AND NOTES. See Bills of Exchange Act, ch. 33, Dominion Statutes, 1890. What is a proniissor}- note? Trimble v. Miller , 22 O.R. 500. Dominion Hank v. Wif^ij^ins, 21 A.R. 275. " I promise to pny " signed by more than one. A'iniiartl V. '/Viu.s/ty, 27 O.K. _59S. I'AVEE V. \L\KKR i)V NOTK OR ACCEPTOR OF HILL. Plaintiff must prove handwriting of person whose name appears as maker of note or acceptor of bill. The acceptance is proved by evidence of the ac- ceptor's handwriting, imd the production of the bill with such proof is prima facie evidence of acceptance before action brought, as the presumption is that it was accepted within a reasonable tmie after date, according to the regular course of business, and be for e maturity. Roberts v. Bclhcll, 12 C.B. 778. If several (not partnoi..) are acceptors, the hand- writing of all must be proved. Gray v. Palmers, i Esp. 135. If one of several partners accepts a bill drawn on the firm, it is sufiicient to prove the partnership and his handwriting in an action against all. Mason v. Ramsey, i Campbell 384. It is a good defence that the plaintiff had notice that the firm would not be bound by such an ac- ceptance, or I'll pai ail bet ac wa li.i I'.ILI.S AND NOTKS. 17 Jones V. Corhdt, 2 QM. d^i^.. or tliat the l)i:l \v;is not accepted for jiartiurship j)iirposes, and that tliere was covin between tlie , j)artner who accepted iind the plaintiff. After an action br(HiL:^ht ajjjainst a Ih-ni as makers and a private indivi(hial as endorser of a note had been dismissed as aj^ainst the incHvidual, a further action a^amst liim to declare him liable as [)artner was dismissed. Ray V. Isbistcr, 22 A.R. 12. If the acceptance is by an aj;cnt, his authority and handwriting must be proved. Proof of presentment is necessary against the ac- ceptor on a qualified acceptance, but not on a general .icccptance, even where the bill is payable on de- mand. If the bill or note be payable after sight it must be j)resented in order to charge the acceptor or maker. i I ■ INDORSEE V. MAKF.R (^R ACCKPH^R. Plaintiff must th"st prove the making of the note or acceptance of the bill. The acceptance admits the drawing. Then the indorsement must be proved, and, if special, it must appear that the indorsee is the person described in it. If instrument be pa\able to bearer, or indorsed in blank, it is unnecessary to prove a subsequent in- dorsement unless alleged. A promise to pay, or an offer to renew a bill or note made to the indorsee after it is due, is an admission of the holder's title, and will make the proof of endorsement un- necessary ; but the admission of the indorser is evidence against him only, not against other parties. i8 BILLS AND NOTES. When the endorsement is by an agent, it is neces- sary to show that the person by whom the endorse- ment is written had the authority of the person whose name is written. In such a case an authority to draw does not of itself impart an authority to in- dorse bills, but it is a fact which ought to go to the jury as evidence. All the endorsements that have been stated, though unnecessary, must be proved against the acceptor. Wayjiaui v. Bend, i Campbell 175. By striking out intermediate indorsements tlie plaintiff loses the security of those indorsers. W'hen a bill is indorsed in blank, possession is su^Q.\iiV\\. prima facie title, and several plaintiffs suing as indorsees need not prove that they are in partner- ship, or that the bill was indorsed to them jointly. Orel V. Portall, 3 Campbell 239. r)nt where it is specially endorsed to a firm the partnership must be proved to consist of the plain- tiffs, if sued in individual names of persons compos- ing firm, and not lirm name. DRAWER V. ACCEPTOR. When a bill, though not pa\al)le to the drawer's own order, has been dishonored by the acceptor and taken up by the drawer, he may sue the acceptor. Siutuiomh v. Pavmintey, i Wilson 185. He must prove : 1. The acceptance. 2. The presentment to the defendant and his refusal to pay, which may be done by calling the person who presented the bill, or b\- proving a promise by the defendant to pay, which dispenses with proof of the presentment. BILLS AND NOTES.' 19 3. The return of the bill to and payment thereof by the plaintiff. PAYEE OR INDORSEE v. DRAWER. The plaintiff must prove : 1. The drawing of the bill. This must be proved by evidence of the drawer's handwriting, or, if drawn by an agent, by proving the authority of the agent and his handwriting. 2. Presentment to tlie drawee for acceptance, or to the acceptor for payment. It is not sufficient to show that the bill was pre- sented to some person on the drawee's premises without connecting him with the drawee. Check v. Roper, 5 Esp. 175. The bill must be left with the drawee for twenty- four hours, unless during that time he either accept or refuse to do so. Van Dieinan v. Victoria, L.R. 3 P.C. 543. A part payment, or a promise to pay after the bill is due, is prima facie evidence as an admission that the bill was duly pr.^sented. Liiudi: V. Robertson, 7 East 231. 3. Default. 4. Notice ci dishonor. See MercJiants Bank v. McDo:i<^all, ^,.' '^.V. 236. What is sufficient evidence of waiver of notice of dishonor discussed. P)ritton V. Milsoin, ig A.R. 96. 5. In case of an indorsee, the indorsements. INDORSEE V. INDORSl'R. First prove indorser's signature, which admits ability, and signature of every antecedent party; ■S--^i 11 11 20 BILLS AND NOTES, then presentment for payment or acceptance and dishonor ; lastly, notice of dishonor or competent excuse for ne^j^lecting to give it. Defkncks tc AciiONs ON Biij.s OF E.\chan(;e and I'romi>sorv NO'I'KS. Th e prmcipa 1 def( ences are as foil ows Neuotiation of overdue or dishonored bill. ■i-> Loss of bill. Alteration. Payment. Failure or want of consideration, raud. orp^cry lUegalit). Illegality of consideration. Agreements at variance with bill or note. Voluntary discharge and waiver. Alteration of the position of the parties, giving tnn e, e tc. !))• section 30, sui)-SL'clion 4, of Hills of llxchange Act, 1800, notes given for a patent right must have the words "given for a patent rii,'ht " written or printed on such notes \% icn issued. If not, tlicy are void, exct'iit in the hands of a holder in due course without notice of such coiibideralion. This provision considered. Johnson v. Martin, 19 A.R. 592. Sainnc/ \\ Fa/)xr/\-7Y, 24S.C. n. 17S. An accomniodation note used in bad faith ordered to he delivered up. Millar v. P/ni)i;nrr, 22 S.CR. -.5^ A person wri'irig his name on the hack of a tion-negotial'le nijte without more i> not n g.ai.intor, nor is he liable as endi'>c rts.ni v. Lonstlalt', 21 O.K. 600. A president of an incorporated company discounted notes, u-iing the company's name. Held, that the company must aflirm or disatiirni the transaction altogellier, and could not re})udiate the liai)ilityon the note and at the same time take the benefit of it. /hi(/i^cwa/i'r Ci>. v. Murphy, 26 O.K. 327. A renewal of a note is not a negotiation of it witiiin tlie meaning of section 75 of the Hank Act (Dom. Statutes, 1S90, c. 31), so as to sup- MAKIN1-: IXSl'KAIsCE. 21 port a security taken at the time of the renewal in siil)stitiilion for a previoi;«ly existing security. Bank of I/aiiiiiton v, S/ttp/wrd, 21 A. R. 1 86. ACTION ON POLICY OF INSURANCE. MARINE INSURAN'CE. The plaintiff ma}- be called on to prove the following facts : 1. The subscription or execution of the policy by the defendant. The policy must he produced and proved, and ifsuhscribed by an agent of the defendant the handwriting and authority of the agent must he proved. If the authority of the agent was in writing, it should generally be produced ; but the authority may also be proved by showing that the ilefendant has recognized the act of the agent in this instance, or in other similar instances in which he subscril)ed [)olicies for the defendant. Neai V. Erviiii^, I Ksp. 6i. Ih-ocklelhDik v. Sua-rur, 5 C. iV I*. 21. 2. The interest of the party as averred. Insurances without interest, or \va^'erin,<( policies on British ships or ^oods therein, are void by 19 Geo. II., c. ^y, s. i, and the interest must be proved otherwise than b}- the policy itself. In the case of foreign ships interest need not be alleged or proved. A parly has a right to insure properly over which he has an ecpiit- able lien. Neither the actual nor ctnistructivi. possession of the I>roperty is necessary to be in the insurer, either at the time of is.-ue of the policy or when the loss insured against takes place. It is suflicient if he have an efjuitable lien on the s|)ecific chattel property covered by the policy Ct'ark v. Sco/tis/i Imp., 4 S.C.R. 19; The interest in the ship, as stated in the claim, may be proved prima fade by evidence of possession of the ship, or of acts of owner- ship, as directing the loading of the ship, purchasing the stt)res, paying the people employed, etc. A common mode of proof is to call the nK¥i 22 MARINE INSURANCE. master, who will prove that he was appointed and employed by t parties in whom the interest is averred. The interest in goods may be proved pr////a /acic, like the interest in the ship, by evidence of possession and acts of ownership. It is also frequently proved by the production of the bill of lading. Lie kharrow v. Mason, 2 T.l\. 71. Seagrave V. Union, L.R. i C. P. 305. The plaintiffs held to have an insurable interest under thengreement in evidence on goods on board when policy eflfected, and also on return cargo. '^fflr'-haitis v. Rumscy, 9 S.C.R. 577. 3. The pui.ivu. of the goods on board when the poHcy is on gooJ ., The shipment of goods on board is usually proved by the captain. If he be dead, the production of the bill of lading and proof of his handwriting will be evidence of the shipping. In an action upon a policy on freight the assured must show that some freight would have been earned, either by proving that some goods were put on board, or that thert was some contract for doing so. Sec Potter v. Rankin, L R. 6 ILL. 83. 4. The inception of the risk. Where the vessel is lost in the course of a voyage for which she is insured, some proof of the inception of the voyage or risk must be given. Kostcr V. Innes, Ry. & M. 333. This may be proved by some of the crew, or proof of a particular destination by charter party will afford a presumption that she sailed on the chartered voyage. The risk in the case of a voyage policy on the ship to a port, without any provision as to her safety there, terminates when she is anchored at the port in the usual place for discharge of her cargo. Stone v. Marine Inr. Co., I Ex I). 81. But the policy usually extends in terms to the end of a period of twenty-four hours after mooring in safety in port. In the case of goods the risk depends on the agreement of the parties, but it usually begins with the loading on board and ends with the safe dis- MARINE INSURAN'CK. 23 charge, including their passage to the shore by usual means. 5. Compliance with warranties. Warranties may be either express or implied. Implied warranties are: (i) That there shall be no deviation from the voyage insured. (2) That it shall be commenced without unrea- sonable delay. (3) That all material circumstances shall be dis- closed to the underwriters. (4) That the ship shall be seaworthy. A breach of these conditions avoids the policy, whether there be fraud or not. An express condition against storing of oil not infringed by a small quantity of lubricating oil for engine. Mitchell v. City of London Ass. Co., 15 A.R. 262. 6. A license for the purpose of legalizing the voy- age in some cases, Ci::;., in case of war trading with an alien enemy. 7. The loss. A loss may be total or partial, and a total loss may be either actual or constructive. Where the loss is actually total no abandonment is necessary to found a claim, f ..«■., where the ship is lost, or destroyed, or captured, or reduced to a wreck. In order to make out a constructive total loss the plaintiff must show that the cost of repair would have exceeded the value of the ship when repaired. In order to justify an abandonment there must have been that in the course of the vovaije which at the time constituted a total loss. Holdswovth V. Wise, 7 B. c\: C. 794. \\\ I ll^^ i 1 r' m 24 MA RINK INSIKANCI' Th(j condition of payment was a report of loss which was to be subsequently adjusted. Held, adjustment not a condition precedent to right to recover. Jhink of B.X.A. V. Western, 7 O.R. 166. A mortj^aijjee can recover in case of an actual total loss. He is not precluded from recovering,'' as for a constructive total loss upon givins^ notice of aban- donment. Anchor v. Keith, 9 S.C.R. 4S5. As to 1' ' ility of reinsurer, see Phaiiix V. Anchor, 4 O.R. 524. Notice of abandonment must be given. It may be made ij.allv . 8. The amount of it. In open policies the assured must prove the extent of his loss. In valued policies, if the loss be a total one, the assured is only bound to prove some interest in the ship or goods. Where the loss is partial the plaintiff is as much bound to prove the value of the goods that have been lost, and to ascertain the damage he has sus- tained by the loss, as in the case of an open polic\'. The amount recoverable depends on the value of the thing insured, the sum insured, and the amount of loss. Generally policy requires action to be commenced within a certain time. vSee Robertson v. Pii^h, 15 S.C.R. 706. In ascertaining the loss in an action on an open policy the true value of the thing insured is the cri- terion ; but on a valued policy the assured can only recover to the amount that the thing is valued in the particular policy, and if he has already received that recover an I" I RE IXSl'KANCI-:. 25 value on another policy he cannot recover anjthini^ further, although the true value and the loss be beyond what he has already received. Bruce V. Jones, i H. & C. 769. Anclior v. Phaiiix, 6 A.R. 567. On average, Western Ass. Co. v. Ont, Coal Co., 20 O.K. 295. Claim for return of premium is often added to a claim on the polic)-, and the question of the right to recover arises on the failure of the plaintiff to estab- lish his case on the policy. See Western v. Scanlan, 13 S.C.K. 207. Where policy is void ab initio, or where there is no insurable interest innocentl}', premium or part of it may be recovered. If the risk has never commenced there must be a return, or if the policy is avoided by failure of war- ranty without fraud. defi:ncp:s. Any special defence must be set up, such as insuf- ficient subscription, concealment, misrepresentation, fraud, illegality. FIRI-: IXSL'KANCi:. The Statutes of tha Province of Ontario affecting fire insurance contracts arc : The Ontario Insurance Act, of R.S.O., c. 167. Amended by statutes, 1888, c. 25 ; 1889, cc. 30-31 ; 1890, c. 44 ; 1891, c. ^y ; 1892, c. 39 ; 1893, c. 32 ; i^95> c. 34. Insurance Corporations Act, 1892, c. 39 ; 1893, c. 32 ; 1894, c. 48 ; 1895, c. 39. The Dominion Insurance Act is R.S.C., c. 124. Amended by statutes, 188S, c. 28 ; 1894, c. 20 ; 1895, ^^- 19-20. Itfl ii ii 26 FIRE INSURANCE. The conditions set out in section 114 of R.S.O., c. 167, known as the " statutory conditions," are deemed to be part of every fire insurance contract in Ontario. Variations to be bindinj:^ must comply with directions of sections 115 and 116 of that Act. If there are any other than statutory conditions they are only valid in so far as they may be held by the court just and reasonable. Technical or unsubstan- tial objections to proofs of loss furnished to compan- ies are to be disallowed (section 118). On conflition 9. Divided risks. See M( Causland v. Quebec Fire Ins. Co., 25 O.K. 330. Distinction between first and fourth conilitions pointed out. Ihiulop V. Us/wrne, 22 A. R. 364. Where tlie business of a partnershij^ is taken over by a limited liability comi)any formed for that purpose there is such a change of interest as to invalidate insurances held by the firm in the absence of notification of change. Peuchen Co. v. City Mutual Co., 18 A.R. 446. Insurance by mortgagee held to have l)een effected for benefit of mortgagor. The interest of the mortgagees was the same as if they were assignees of a policy effected with the mortgagor and payment to the mortgagees discharged the mortgage. The company were not justified in paying the mortgagees without first contesting their liability to the mortgagor, and establishing their indemnity from liability to him ; not having done so, they could not in an action by the mortgagor raise any cjuestions which might have afforded them a defence in an action against them on the policy. Imperial \. Bull, 18 S.C.R. 697, affirming 15 A.R. 421. I'ollowed in McA'av v. Norwich, 27 O.R. 251. Mortgagees held not entitled to consolidate their mortgages so as to be paid the whole of the insurance moneys. Re Union Assurau>e Co. v. Lang, 23 O.R. 627. Contract for sale of insured building no change of title. Ardills. Citizens, 22 O.R. 529. The Mortgage Act, R.S.O., c. 102, s. 4, is intended to take the place and extend the operation of Imp. Act, 14 Geo. III., c. 78, which was held to be in force in this Province, and to be enforceable by a mortgagee. Stinson v. Pennock, 14 Chy. 604. The Imperial Act w^as repealed as to Ontario by 50 \'ict., LIFi: INSLKANCli. 27 c. 26, s. 154. Section 4 of K.S.O., c. 102, is con- sidered in Ednwuih v. Ilcniiiltoti, 18 A.R. 347. See Waterous v. McCann, 21 A.R. 486. The decision in Kdmomis v. llamilton was that where insurance moneys wre received by a mortgagee uniltr a policy effected by the mortgagor pfursuant to a covenant to insure made imder the Short Forms Act, the mortgagee is not bound to apply the insurance moneys in payment of arrears, but may hcdd them in reserve as collateral security while any portion of the mortgage moneys is unpaid ; nor, though he applies part upon overdue principal, is he bound to apply the balance in discharge of overdue interest. It is necessaiy to show an interest in the subject insured at the time of insuring and of the tire. Howard v. Lancashire, ii S.C.K. 92. Being a contract of indemnity, the assured can only recover the actual loss or damage sustained by him, according to the real quantities and value of the goods at the time of the fire. Caldwell v. Stadacona, 11 S.C.R. 212. LIFE INSURAXCK. Same general line and same defences, remembering that this is not a contract of indemnity. Conjcderation v. O'Dontiell, 13 S.C.R. 218. North American v. Crai^^^en, 13 S.C.R. 278. Manufacturers' Life v. Gordon, 20 O.R. 323. The statutes relating to Life Insurance are : Insurance Corporations Act, Ontario Statutes, 1892, c. 39, amended by 1S93, c. 32 ; 1894, c. 48 ; 1895, c. 39. Insurance for benefit of wives and children, R.S.O., c. 136, amended by 1888, c. 22 ; 1890, c. 39; 1892, c. 39; 1893, c. 32; 1894,0.48; 1895,0.34; 1896, c. 45. Defence. — (i) Non-paymf-'n r of Premium Note. A condition in a life policy provided that if any premium or note given therefor was not paid when due the policy should be void. \\ ! ,-iii i '■ ■' It, J, SI ill> iiL ; ' 28 LII'I-: INSUKANXH. Where a note f^ivcn for a premium under said policy was partly paid when due, and renewed, and the renewal was overdue and un[)aid at the death of the assured, the policy was void. A demand for payment after the maturity of the renewal is not a wiiver of the breach of con- dition so as to keej) the policy in force. McGeathic v. North . l///rn'ca>/, 23 S.C. K. 148. See Ficu/k V. Si/ii I iff, 23 S.C. R. 152, in which case the policy di. I not contain a condition that it was to be void if the ])remiuins wer^ not p.ud. The premium notes did so pro- vide, and tlie insured <\ ^^<\ when (jne note was overtlue and unpaivL In Matin fiutiircrs'' /.few Cordon^ 20 A. R. 309, the Court applied above case of Mi(]eacl-,c v. North Atncruaiiy and declined to continue the liability on a polic;' beyond default in payment of a premium note, proceedings on the note were no waiver of the default. (2) Ai'i'ORi lONMtiN'f OK Disposal ok Poi.icv. A be(|uest of a life policy to the testator's wife is a valid declaration of trust within the meaning; of R.S.O., c. 136, s. 5. McKibbo)i V. lut'^an, 21 A.R. 87. The Act of 1896 covers the deci>i(m in this case, and in those of AV I.yiiii, 20 (). R. 475, and Bt'aiit v. Mtriicr, 24 O.R. 189. See also AV Cameron, 21 O.R. 634, to same effect. A'e Grant, 26 O R. 130, 485, is superseded by above Act. Even under the amendinj^ Act the insured has only a limited power to vary the policy or declaration of apportionment. While he may vary he cannot destroy the trust created by the jiolicy. jVi/Vson V. 'J rusts Cor/foratio/f, 24 ( ). R. 520. Mtngeaini V. Packer, 19 A.R. 290. SiOtt V. Scott, 20 O R. 313. A contract for the surrender of a lite policy, unlike a contract for life insurance, is not nbcrriiiuc fiJci. rotts V. Tempo atr c y )V reason o f misstatements in the api)lication therefor, because a stipuhition on the face of tlie contract luovidintj for the avoidance thereof for such misstatements was not in stated terms limited to cases in which such misstatements were material to the contract. _j London Wr^t v. London Ciua)antCi\ 26 < ). K. 520. On a policy to indemnify on condition that the (guarantor company's solicitor managed the proceedinp;s, an offer by plaintill the day before trial to hand over ccMuhict to such solicitors not sullicient. Wythe \. Manii/iuliircrs, 2G i).\<. 153. BKNKFIT SOCIETIES. See Acts of 1895 and 1896 relating to registration of these societies. A certificate of a IJenevolenl Society was payable on death, half to the father and hall to the mother of the beneficiary. An incomplete transfer to wife married subse(|uently not ufiheld. Simmons v. Si/n>no>is, 24 O. I\. 662. Where the constitution of a benevolent society provides that benefi- ciary certificates may be granted to persons who take a certain degree, all the ste[)S laid down in the constituiioii in connection with the taking of that degree must be complied with before any beneficiary certificate can be legally issued. Death before the ceremony of initiation makes tlie certificate not enforceable. Devins \. A'oya/ Vl'/n/y/ars, 20 O.K. 259. A meniber of a benefit society was struck otf on an enquiry impro- perly conducted. I lis executor was held entitled to recover. Gravel v. V Union Si. 'Lhounis, 24 O.K. '.. ACTION ON CONTRACT OF M^FRIiIGHT- MENT. Lies by or against a shipowner, whether ship be general or special. Contract n.e.l ncjt be under seal. In case of a general ship, th',' bill of lading. ii 'J If; 30 AFFRHICHTMl-NT. ii l!i5>. m IM; >\\ : \ i; In case of a chartered ship, the charter party is the proof of the contract. A bill of lading is a receipt for the goods, with an obligation to transport the same. See R.S.O., iHcSy, c. 122 ; Hanking Act, Dotn. StatL., i(Sg(), c. 31, sec. 2. See Coficland v. Can. Loco. Co., 14 O.K. 170. A charter party commonly contains clauses— On part of shipowner for seaworthiness, receipt and delivery of cargo, and performance of voyage, with an exception of certain perils. On part of freighter, to load in a given time and to pay freight and demurrage. The master of the ship is agent of the owners, and can sue and be sued in his own name, and can sign a charter party or bill of lading in his ow name and bind owners. In ordinary course consignor sends bills of lading and bills uf exchange, thus transferring property and possession of goods consigned to consignee. Where sent to agent of consignor, then property does not pass until consignee accepts bill of exchange. The right of suing upon a contract under a bill of lading follows legal title to the goods as against the indorser. Dyacachi v. Anglo-Anicriain Xav.Co., L.R. 3C.P. 190. SIIIPOWNKR V. CHARTERER OR MERCHANT. In this action the shipowner sues the charterer for not loading, or for demurrage, or for freight. A shipowner may sue shipper for contributions to general average. In an action for not loadiu'^, the plaintiff must prove his own compliance with warranties or con- ditions. AFFRKfGHTMI'NT. 31 The description of a ship in a charter party is a warranty, but a statement of tonnaj^'o is not. The merchant undertakes to load and unload within a certain number of days, calletl lay days, with liberty to delay the ship for a loni:jer specified period on payment of a chiily sum, which, as well as the delay itself, is called dcnuirrai;e. If the charter party contains a fixed number of demurrage days as well as lay days, and the shij) is, by fault of the merchant, delayed beyond them both, that is called detention, and is to be compensated for l)y damap^es. When no demurrage days are mentioned, all deten- tion beyond the lay days is demurrage. See Lord v. Pavidsoti, ij S.C.R. 166. Sundays are inchuled in Ua}s to be allowed for unless expressly excluded. (ribbons v. Michaels iUiy, 7 O.K. 746. Frei{.;"ht is regulated by the contract, or, if none, b\- a quantum meruit; if part accepted, a contract to pay pro rata may be inferred. Measure of damages for not loadmg a cargo is the amount of freight which should have been carried, deducting expenses and an\' profit earned during the time covered by the charter. Smith V. yrCruire, -} H. cS: N. 554. In addition to his remedy by action, the ship- owner has a lien on goods for freight. If it appears on the bill of lading that freight has been jxiitl, the owner is estopped from claiming it. Howard v. Tucker, i B. & A. 712. There are certain imj)lied contracts on part of shippers, such as not to put on board without notice dangerous or corrosive matter; on part of ship- owner, that the vessel be ht. Brass v. Maifland, 6 E. cS: !>. 470. m Ji il ^' i !li. liii !ii ,Jil ''2 AriKHIGIlTMl.NT. An action by shipowner for damages by destruc- tion of vessel. Thompson V. Fowler, 23 O.R. 644. MERCHANT v. MASTER OR SlIIPOWNKK Master as well as owner is liable as a common carrier. Same Common Law exceptions as land carrier and as mentioned in bill of lading. As to these latter, the causa causaiis, not causa pro.xiiiia, is to be looked to. See liainilton v. Pandorf, 12 App. Cas. 518. The plaintiff must prove readiness and willingness to ship. McKcnzie v. Danccy, 12 A.R. 319. There are certain implied contracts on the part of the shipowner or master. The master impliedly contracts that his vessel shall be fit for the purpose of carrying the goods. She must therefore be seaworthy when she starts on her vo3'age. As to damages where contract broken, see McEwau \. McLcod, 9 A.R. 239. Where there is no sti[)ulation as to time, the master must sail in a reasonable time, and proceed without deviation to the destined port ; otherwise he will be liable to the plaintiff for any loss occa- sioned b}' the delay; or for any loss, whether by perils of the S'Xi or otherwise, occurring during the deviation, unless the defendant can prove that the loss must have hiippened had there been no devia- tion. Deviation is justifiable to save life, but not merely to save property. Scarainan^a v. Stamp, 5 C.P.I). 295. The master is bound to deliver to consignee or GUARANTEE. 53 order of shipper on production of bill of ladings and payment of freight and other Inwful charges. What is a sufficient delivery depends upon the contract or upon the custom and usage of the port. Mere delivery at a wharf, and then leaving goods without notifying the arrival to the consignee, is not sufficient, and the responsibility continues until actual delivery to a person appointed to receive, or something equivalent to it. Hately \. Merchants Despatch, 12 A.R. 201. As to salvage. International Wrecking Co. v. Lohb, 11 O.R. 408. [^i ACTION ON GUARANTEE. A guarantee is a contract to answer for the pay- ment of a debt or performance of a duty by another person. A contract of suretyship arises also by the law merchant between drawer and endorsee, and between indorser and subsequent holders. Aquestion often arises as to whether the guarantee is confined to one transaction, and is at an end when credit has once been given to the amount guaranteed, or whether it continues in respect to credit given or debts contracted from time to time. The tendency of the Courts is now to construe guarantees as continuing until revoked. It is gener- ally a question of intention. Plaintiff must prove default of principal debtor against which he has been guaranteed. Admissions made by principal debtor, or a judgment or award obtained against him by plaintiff, are not evidence against the surety. ■'i mT 34 GUARANTEE. The difference between a guarantee and indem- nity explained. Beattic v. Dinnick, i6 C.L.T. 107. I, ii I ill ill. Ill' DEFENCE. By the Statute of Frauds, 29 Car. II., c. 3, s. 4, no action can be brought on a guarantee ' unless the agreement upon which such action shah je brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." By R.S.O., 1887, c. 123, s. 8, the consideration need not appear in writing. The surety may rely on the concealment of material particulars by the principal at the time the contract was made. On the other hand, the creditor is not bound to communicate every circumstance calculated to influence the discretion of the surety. Non-disclosure — what amounts to, discussed. Meaford w Lang, 20 O.R. 541. Any alteration by a binding agreement in the relative position of the creditor and principal debtor, whereby the latter is released, or the remedy against him is suspended, or the risk of the surety varied without the surety's assent, will be a discharge of the guarantee. CratlicDi V. Bell, 45 U.C.K. 473. Richard v. Stillwell, 8 O.R. 511. On the effect of a creditor releasinjr some of his security. Mohons Dank v. Ileilig, 26 O. R. 276. When a creditor wastes or deals improperly with a security the surety is discharged, but only//"o tatito. IVardv. National Bank of Nexv Zealand, 8 App. Cas. 766. Taylor \. Batik of New South Hales, li App. Cas. 602. See a complete release, Allison v. McDonald, 20 A. R. 695. A bond conditioned for delivery up by the principal on demand WARRANTY. 35 requires a personal demand ; a demand on his personal representatives is insufficient. Port Elgin v. Ehy, 26 O. K. "]},. A creditor may by express reservation preserve his rights against a surety, notwithstanding the release of the principal debtor ; but if the effect of the transaction is to extinguish the debt, there is nothing in respect of which the creditor can reserve any rights against the surety. Holliday v. Ilogaii, 20 A.R. 29S. A new agreement between the debtor and creditor, extending the time for payment of the debt and increasing' the rate of interest, with- out the consent of the surety, is a matei .U alteration of the original contract and releases the surety. A provision reserving the rights of the surety is of no avail as regards the stipulation for an increased rate of interest. Bristol, etc. v. Taylor, 24 O. R. 286. Where one of several sureties has been released by the creditor t,nving time to the principal debtor with the consent of the other sureties, the latter cannot upon payment of the debt recover contribu- tion from the co-surety. Worthingtou v. Peck, 24 O.K. 535. Change of official duties, ^Middlesex v. Smallman, 20 O.R. 487. ACTION ON WARRANTY. The most frequent cases in which an action is brought on a warranty are on the occasion of a sale of goods, and of a representation of authority to enter into a contract on behalf of another person. WARRANTY ON SALE OF CHATTELS. If a man sells goods affirming them to be his own, that amounts to a warranty of title. There is in general no implied warranty of title any more than of quality on the bare sale of a per- sonal chattel. Morlcy v. Attenborough, 3 Ex. 500. But see Pcuchen v. Imperial Bank, 20 O.R. 335. li i ; i' 36 WARRANTY. ^. ii Ml In order to make a seller of personal property liable for a bad title there must be shown fraud, or express warranty, or an equivalent to it by declara- tion, or conduct, or usage of trade. Baguelcy v. Hawley, L.R. 2 C.P. 625. As to warranty of quality, the following classes of sales show in w^ t cases there is an implied warranty of quality : 1. Where the goods are i)i esse, and may* be inspected b}' the buyer, and there is no fraud on 'the part of the seller, the maxim caveat emptor applies, even though the defect is latent and not discoverable on examination, at least where the seller is neither the grower nor manufacturer. Parkinson v. Lee, 2 East 314. 2. Where there is a sale of a defmite existing chattel, specifically described, the actual condition of which may be ascertained by either party, there is no implied warranty. Barr v. Gibson, 3 M. & W. 390. 3. Where a known, described, and defined article is ordered of a manufacturer, although it is stated to be recjuired by the purchaser for a particular pur- pose, still, if the known, described, and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. Chanter v. Hopkins, 4 M. & W. 399. 4. Where a manufacturer or dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the mauufacturer or dealer, there is in that case an implied warranty that it WAkKANTV. 37 shall be reasonably fit for the purpose to which it is to be applied. Bvoivn V. Edi(iu<^ton, 2 M. & Gr. 279. 5. Where a manufacturer undertakes to supply fj^oods manufactured by himself, or in which he deals, but which the vendee has not had the oppor- tunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article. Lain^ v. Fich^cun, 4 Camp. 169. 6. Where the contract is to supply ^li^oods of a specified description, which the buyer has had no opportunity of inspectinej, the goods must not only in fact answer the specific description, but must also be merchantable or saleable under that description. Bif(ge V. Parkinson, 7 H. & N. 955. And, even although the buyer has inspected the bulk, the goods must answer the specified description. 'joding V. Kingsford, 13 C.13., N.S. 447. The lessor of a chattel for hire impliedly warrants that it is reasonably fit for the purpose for which it is let. Reynolds v. Roxburgh, 10 O.R. 649. Where a horse or other article has been sold wai ranted, but is not in fact according to the warranty, the purchaser may maintain an acticm upon the warranty. In some cases he may rescind the contract and recover the money paid. It is only where there is a condition in the contract authorizing the return of the chattel, or where the vendor hns received it back and thereby rescinded the contract, or has been guilty of a fraud which avoids the con- tract, that the purchaser may thus recover back the price. Where the property has not passed an action for breach of warranty will not lie. I'! : i :: I Ml! Hil m< 38 WARRANTY. Frye v. Milligan, 10 O.K. 509. Tomlinson v. Morris, 12 O.K. 311. Where there is a breach of the warranty and no condition for rescinding the sale, the vendee must keep the article and rely upon a cross action or counterclaim, or prove the breach in reduction of damages when sued for the price. Mooers v. Gooderham & Worts, 14 O.R. 451. See also Ellis V. A bell, 10 A.R. 226. Where there is no written contract and the warranty is mentioned in the receipt for purchase money, the sale and warranty may be proved by pro- duction of receipt. A sale for $40 and upwards is within the Statute of Frauds ; but as breach of warranty is not usually discovered till after delivery and acceptance of goods sold that statute is then complied with, and contract may be proved by oral evidence. The plaintiff must, in general, prove an express warrant}'. Generally, a representation made at the sale is part of the contract and equal to a warranty. Not if the contract is reduced to writing. The plaintiff must prove unsoundness at time of sale. Eaver v. Dixon, 2 Taunt. 343. If a horse has been returned, the plaintiff will be entitled to recover whole price ; if kept, difference between real value and price. Or, plaintiff may sell horse for what he can get, and recover residue of price paid in damages. Caswell V. Coare, i Taunt. 566. Warranty by agent. McMiillen v. Williams, 5 A.R. 518. In the case of the second kind of action on war- il PROMISE OF MARRIAGE. 39 ranty, viz., action on the occasion of a representation of authority to enter into a contract on behalf of another person, the general principle api)lies that where A contracts for B, as a^^ent, he is liable if he is really principal, or if there is no \^ in existence. If A bona fide but falsely represent to plaintiff that he is authorized by B to order floods, and plaintiff fail in action against B for want of such authority, he may recover value and costs of former action in an action a^^ainst A. Randell v. Trimcn, 25 L.J., C.P. 307, ACTION ON PROMISE OF MARRIAGE. To maintain this action the plaintiff must prove the contract and promise of the defendant. The promises must be mutual, the reciprocity constituting the consideration. To prove the breach of the promise, evidence must be given either that the defendant has married another person, so that performance is no longer possible, or that a tender has been made by the plaintiff, followed by a refusal on the part of the defendant. The financial position of the defendant is evidence on the question of damages, and not merely the loss of an establishment in life, but the injury to the plaintiff's feelings, may be considered by the jury; and in this respect the measure of damages is different from that which is adopted in the case of other contracts. As to evidence of parties in this action, see R.S.O., 1887, c. 61, s. 6. McLaughlin v. Moore, 10 P.R. 326. n lili 40 AWARD. As to corroborative evidence, see Costello V. Hunter, 12 O.R. 333. Yarwood v. Hart, 16 O.K. 23. Smith V. Jamicson, 17 O.R. 626. Where defendant sets up f^eneral immodesty, plaintiff may, in first instance, give general evidence of p^ood character, but not if there is a specific ch irge of immoral acts. Jones W.James, 18 L.T., N.S. 243. DEFENCE. Immodesty or depraved conduct subsequently discovered. Grant v. Cornock, 16 A.R. 532. To show general bad character of plaintiff, evidence of general reputation is admissible. Foiilkes V Sellway, 3 Esp. 236. Material misrepresentation of circumstances. Release by conduct. Reynolds v. Jamieson, 19 O.R. 235. ACTION ON AN AWARD. See R.S.O., 1887, c. 53, s. i. An action on an award is the only way of enforc- ing it where the submission cannot be made a rule of Court, e.g., parol. Plaintiff must prove submission and award, and performance by himself of any conditions precedent put in issue. Where submission is by a Judge's order, which has been made an order of Court, it is sufficiently proved by production of office copy of latter order, SOUCnOK S BILL. 41 but not where submission is by deed or written agreement. It is necessary to prove the submission of all par- ties to arbitration, for without such proof it does not appear that the arbitrator had competent authority to decide between the parties. If time for making award has been enlarged, and award made within enlarged time, plaintiff must show that enlargement was duly made according to terms of submission, or by consent or under power of statute. If the award be by an umpire, or by the arbitra- tors and an umpire, the appointment of the latter must be proved. Still V. Halford, 4 Campbell 19. Unless the submission requires it, attestation is unnecessary ; and in general, therefore, an award may be proved like any other deed or writing, namely, by proof of the arbitrators' handwriting. DEFENCE. Corruption or misconduct of the arbitrators is not matter of defence, at least where application might have been successfully made to the Court to set the award aside. Nor can the award be impeached on the ground that the decision of the arbitrator has proceeded on a mistake. Johnson v. Ditranl, 2 B. & A. 925. See Moore v. Bnckncr, 28 Ch. 606. ACTION ON SOLICITOR'S BILL. See R.S.O., 1887, c. 147, s. 31. As to special circumstances, see s. 34. '' s u i!! ijlp » ■,■ I 42 SOLICITOR S lULL. Payment not to preclude taxation, etc., see s. 46, Plaintiff must prove : 1. His retainer as solicitor by the defendant, which may be done either by showing an express retainer, or that the defendant attended at his office and j^ave directions, or in other ways recognized his employment. See Re Allison, 12 P.R. 6. 2. That business was done, which may be proved by clerk or other agent who can speak to the exist- ence of the cause or the business in respect of which the charges were made, and can prove the main items. In an action against an ordinary corporation a re- tainer under seal must bti proved, but not in the case of commercial companies incorporated by Act of Parliament. Now an agreement may be made for pa3'ment by a gross sum. R.S.O., 1887, c. 147, s. 51. 3. Delivery of bill, at least one calendar month before con:mencement of action. See Scane v. Duckett, 3 O.R. 370. The bill may be proved by a copy or duplicate original, without any notice to produce the bill de- livered. It is enough to prove that a bill of fees, sub- scribed or enclosed in a signed letter, was duly delivered, and the defendant may show that it was not a bona fide compliance with the Act. DEFENCE. Special defences are : Non-delivery of bill, d'sputed charges, negligence or misconduct of plaintiff, want of certificate, admission, etc.. Statute of Limitations. See R.S.O., 1887, c. 147, ss. 21, 23, 24, and 26. It is only after expiration of a year that the refer- AGAINST SOLICITOR FOR NEGLIGENCIi:. 43 ence to taxation at request of party chargeable is not grantable of course. As to agency business, if the sohcitor ordering it does not expressly say he docs not intend to be per- sonally liable, he becomes personally liable. ACTION AGAINST SOLICITOR FOR NEGLIGENCE. In general, a solicitor is liable for ignorance or non-observance of rules of practice ; for want of care in preparation of cause for trial, or of attend- ance thereon with his witnesses ; for mismanage- ment of case so far as so much of the conduct as is usually allotted to solicitors. He is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction, or such as are usually entrusted to counsel. Godfroy v. Dal ton, 6 Bing. 467. See O'Donohne v. Whitty, 2 O.R. 624. Action is maintainable, though damages be only nominal. Godfroy v. Jay, 7 Bing. 413. See Hett V. Pini Pong, 18 S.C.R. 290. DEFENCE. Statute of Limitations runs from breach of duty complained of. Ii kW 44 MliDICAL PKACnnONKKS. ACTIONS m' MKDICAL PRACTITIONERS. Hy R.S.O., i8(S7, c. 148, s. 39, every person rep^is- tered iiiuler th;it Act shall be entitled, according to his qualification or qiialihcations, to practice medi- cine, surj^ery, or midwifery, or any of them, as the case may be, in the Province of Ontario, and to demand and recover in any Court, with full costs of suit, reasonable charges for professional aid, advice and visits, and the costs of any medicine or other medical or surgical appliances rendered or supplied by him to his patients. By section 40 of this Act no duly registered member of the College of Physicians and Surgeons of Ontario shall be liable to any action for negligence or malpractice, by reason of professional services requested or rendered, unless such action be com- menced within one year from the date when, in the matter complained of, such professional services terminated. DEFENCE. If the defendant has received no benefit on account of the plaintiff's want of skill, the latter cannot recover. Kannen v. WMullen, Peake 59. Procedure under Act against offending n al practitioner. Re Washington, 23 O.R. 299. m WAGES AND WRONGIUL DISMISSAL. 45 ACTIONS FOR WAGES AND WRONGFUL DISMISSAL. See R.S.O., 1887, c. 139. In an action by servant for wa^es, plaintiff must prove a hiring, of which service will be evidence, the length of time of service, and the amount of wages due. A dismissed servant may, and, if he can, ought to, enter into another service. DEFKNCE. Misconduct, previous recovery of damages in action for wrongful dismissal. Where services are rendered not on a contract of hirinj;, nor j^ratui- tously, hut upon the faitli of a promise to leave proi)erty by will which the testator fails to perform, an action may be maintained against his representatives for compensation. Smith V. McGuiiaii, 21 S.C.R. 263. A contract of af^ency contained no agreement by the principal to employ for any period or to manufactute any goods. These terms could not be imported into the contract by imi)lication. Morris \. Din nick, 25 O.K. 291. It is for the judge to say whether the alleged acts are sufticient in law to warrant a dismissal, and for the jury to say whether the alleged facts are proved to their satisfaction. Condonation is a question of fact for the jury. Mcltityre v. Hockin, 19 A.R. 498. A contract of hiring enteretl into with a Hrm by a commercial travel- ler is ended by the death of one of the partners. Burnet v. Hope, 9 O.R. 10. A contract to act as master of a vessel '' for the season " is subject to the continued existence of the vessel. Ellis V. Midland, 7 A.R. 464. There is no inflexible rule that an indefinite hiring is for a year. Bainv. Anderson, 16C.L.T. 143. i.- 46 NOT ACCEPTING GOODS. fi|r 11 1 II 1 111 '1 7 ; V: 1 ill ACTION FOR NOT ACCEPTING GOODS. The plaintiff must prove : 1. The contract. 2. The p';rformance of all conditio\:!j precedent on his part. 3. The refusal to receive. 4. The amount of damage. It is most commonly in this action that the question as to the validity of contract of sale with- out writing arises. On a contract of sale the obligations of the buyer are : 1. To accept the article sold. 2. To pay the price. The precise time of the change and vesting of the property and the risk of loss are also questions incidental. In an action for not accepting goods, the difference betv/een the contract price and the market price on the day the contract was broken is an ordinary measure of damages. DEFENCE. Denial of contract. Repudiation of goods. In the case of sales by sample, if the bulk does not correspond, the defendant may refuse to receive it, and may keep the article a reasonable time to examine and then repudiate it. See a letter which was considered suflicient evidence of acceptance though it repudiated the sale. Haubncr v. Martin, 22 A. R, 468 (affirmed in S.C. ). There is a distinction made between the sale of a specific article with a warranty and an executory contract for the supply of goods of a particular I i ! I '■ ! NOT .'ACCEPTING GOODS. 47 quality. In the last case the goods may be refused or returned, if not of the kind contracted for ; but in the former case the remedy is either an action by the buyer on the warranty, or proof by him in reduction of damages in an action by the vendor, unless there be not merely misrepresentation or breach of warranty, but fraud, or unless ther- ls a condition in the contract providing for the return of the goods in such case. Street v. Blay, 2 B. & Ad. 463. A wilful misrepresentation by the vendor, which induced the defendant to purchase, " even with all faults," will be the ground of a good defence. Baf^lehole v. Walters, 3 Camp. 154. By a contract for a sale of specific goods the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown that such waiT not the intention of the parties. Gilmoiir \. Supple, 11 Moo. P.C. 551, 566. But where anything remains to be done to the goods for the purpose of ascertaining the price, as b}' weighing, measuring, or testing the goods, where the price is to depend on the quantity or quality of the goods, the performance of those things shall be a condition precedent to the transfer of the property, although the individual goods be ascertained^ and they are in the st^te in which they ought to be accepted. Jcnner v. Smith, L.R. 4 C.P. 270. Where the property has passed to "-he buyer the vendor may sue for goods bargained and sold, and will be entitled to recover the who'" value of the goods. There must have been an acceptance of part, or I llllli : 48 NOT DELIVERING GOODS. part payment, or earnest, or a note or memoran- dum in writing within the Statute of F'rauds. ACTION FOR NOT DELIVERING GOODS. • On a contract of sale the obligations of the seller are : 1. To deliver or preserve for delivery to the buyer. 2. To perform warranties, express or implied. 3. Neither wilfully to misrepresent nor fraudu- lently to conceal anything relating to the article sold. In an action against vendor of goods for not delivering them, the plaintiff may be called upon to prove the contract and the breach, the performance of all conditions precedent on his part (urincipally readmess to receive and to pay), and the amount of damages. In support of averment that the plaintiff was ready and willing to accept the goods and pay for the same, a demand of the goods is sufficient evi- dence. Wilks v. Atkinson, i Marsh. 412. Non-delivery depends on stipulations of contract. If no place is nan)ed, the bu\er must fetch the goods. Where goods are to be delivered at a future day, the damages for breach of contract are the differ- ence between the contract price and the market price of the goods at the day when they ought to have been delivered. See Hendric v. Ncclon, 12 A.R. 41. GOODS SOLD AND DELIVERED. DEFENCE. 49 Statute of Frauds. Want of readiness of plaintiff to accept. Insolvency. T|i I H ACTION FOR GOODS SOLD AND DELIVERED. Plaintiff must prove : 1. Contract of sale. 2. Delivery of goods according to contract. 3. Value or price. Statute of Frauds not so often brought in here, because generally the delivery on which the action is founded amounts to receipt and acceptance, though not necessarily. In general, proof of the delivery of the goods to and receipt of them by the defendant \?> priina facie evidence of the contract, and supersedes the proof of an order; but this may be rebutted, as by proof that the defendant was in the habit of selling such goods for the plaintiff on commission. Miller v. Neunnan, 4 M. & Or. 646. In some cases here goods have been wrongfully taken, the plaintui' may waive the tort and sue on the implied contract. Then he must show a title to the property. Lee V. Shore, i B. & C. 94. A party cannot maintain this action unless he has either delivered the goods or done something equiv- alent to delivery. Smith V. Chance, 2 B. & A. 755. In the action for not accepting goods in case of written contract, proof must be given that the 1^ 50 GOODS SOLD AND DELIVERED. requisites of the Statute of Frauds as to acceptance have been observed. In this action what is required is proof of delivery. The facts which constitute a delivery are not the same as the facts which consti- tute an acceptance; e.((., an acceptance and receipt of part satisfies the statute as to the whole, but is not a delivery of the whole for the purpose of this action. To maintain this action, delivery to a carrier may be sufficient, though not to dispense with a written contract, for he has no authority as carrier to accept. Meredith v. Mei^h, 2 E. & B. 364. Delivery may be made to a third person at the defendant's request. Where the contract has been made with an agent and delivery to him, the seller may in some cases resort to the principal. Where the principal is unnamed or unknown at the time of sale, the follow- ing; has been laid down as the rule : — " If a person sells goods, supposing at the time of the contract he is dealing with a principal, but afterwards dis- covers that the person with whom he has been dealing is not the principal in the transaction, but agent for a third person, though he may in the meantime have debited the agent with it, he may afterwards recover the amount from the real princi- pal, subject, however, to this qualification, that the state of the account between the principal and the agent is not altered to the prejudice of the principal. On the other hand, if, at the time of the sale, the seller knows not only that the person who is nominally dealing with him is not principal, but agent, and also knows who the principal really is, and, notwithstanding all that knowledge, chooses GOODS SOLD AND DLLIVKKKD. 51 to make the agent his debtor, deiHng with him and him alone, then, according to the cases oi Addison V. Gandassequi, 4 Taunt. 574, and Patersoii v. Gandas- scgui, 15 East. 62, the seller cannot afterwards, on the failure of the agent, turn around and charge the principal, having once made an election at the time when he had the power of choosing between the one and the other.' Thomson v. Davenport, 9 B. & C. 7S, 2 Sm. L. Cas. The fact of the principal's name being disclosed at the time of the sale does noc, until the seller has elected to charge the agent, prevent his resorting to the principal ; such disclosure merely enables the seller to charge the principal in the Hrst instance if he so desire, Calder v. Dohel, L.R. 6 C.P. 486. Bcchcrcr v. Ashcr, 23 A.R. 202. When the seller elects to sue an undisclosed principal, it is a good defence if the defendant show that he has paid his agent, and the books of the seller cannot be admitted as evidence for him that he always debited the principal. Smyth V. Anderson, 7 C.B. 21. Where the seller has sued the agent to judgment he cannot, although he has not received satisfaction, afterwards proceed against the principal. Priestly v. Fernie, 3 H. & C. 977. Goods delivered in pursuance of an order by one partner are delivered to all, unless it appear that they were delivered on the exclusive credit of one only. Bottomley v. Xiittally 5 C.B., N.S. 122. A question sometimes arises in such actions, whether all the defendants are liable as partriers. A joint stock company is in the nature of a partner- ship. When incorporated the direct liability of 52 GOODS SOLD AND DILLIVEKHD. w individual members ceases. A question frequently arises, What is the liabihty of persons who have be- come subscribers to a company projected but not finally established ? Where a husband gives his wife express authority to pledge his credit, she b(icomes his agent. As to implied authority, see Manby v. Scott, and other cases, 2 Smith L. Cas. Where a wife is living separate, it lies on the plaintiff to show that she does so under circum- stances which imply an authority to pledge her husband's credit. Johnston v. Sumner , 3 H. & N. 261. The plaintiff must prove either that the defendant and the woman to whom the goods are delivered are married, of which it is sufficient prima facie evi- dence that they are living together, or tnat she and the defendant cohabited, and that she passed as his wife with his assent, assumed his name, and lived in his house as part of his family. Car V. /v/;^ir, 12 Mod. 372. Watson v. Threlkeld, 2 Esp. 637. The father of an infant to whom goods are sup- plied is only liable where an actual authority from him to his child is proved, or circumstances appear from which such an authority can be implied. Rolfe V. Abbott, 6 C. ^ P. 286. Where goods sold without any agreement as to price, value must be proved. DEFENCE. Action brought before credit expired. In calculating the time of credit the day of the sale must be excluded. Webb V. Fairmaner, 3 M. & W. 473. lU GOODS SOLD AND DELIVERED. 53 To a written offer to sell some flour on certain terms, the following telegram was sent, " Let'er received, offer accepted, writing." No letter was written. Held, that there was a completed contract. Dairy m pie v. Scott, 19 A. R. 477. Where before the time for the completion of a contract for the sale of goods one party notifies the other that he does not intend to com- plete, that notification may he treated as a breach and at once acted upon ; but if, as he may, the other party waits for the time for com- pletion and then brincjs his action, he must show that at this time he had himself fulfilled all conditions precedent on his part. Dalryniple v. Scott, ig A.R. 477. The statute does not apply to a contract which has been entirely executed on one side within the year from the making so as to prevent an action being brought for the non-i^erformance (m the other side. 7'rirn/>le \. Lauktrec, 250. R. 109. On a mistake of vendor as to identity of vendee he obtained a judg- ment against the wrong vendee. In spite of that judgment, which the court vacated, he ol)tained judgment ng.iinst the right vendee. Kcatiug \. Gmluim, 26 O.K. 361. Evidence of mercantile usage will not Ije allowed to add to or affect the construction of a contract for sale of goods unless such custom is general. 7yeMt Valley Manfg. Co. v. Oelrichs or" Co., 23 S.C.R. 682. A letter referring to the terms of a contract made by an agent, but denying the authority of the agent to make it, is a sufficient memo- randum within the Statute of Frauds. Ilaiibner \. Martin, 26 S.C.R. 142. The lien of an unpaiil vendor of a manufactured article is not in- validated if without his direction or connivance the purchaser obliterates the name and address of the vendor painted pursuant to Conditional Sales Act on the article. IVettlau/er V. Scott, 20 A.R. 652. After default in payment by the purchaser of a machine under an agreement whereby the jjroperty was not to pass until payment in full, and that on default vendors should be at liberty to resume possession, nothing being said as to resale, the vendors seized the machine and resold it, the plaintiffs (the vendors) were held to have no right of eclion for the unpaid balance. Sawytr\. Privglc, 18 A.R. 218. Followed in Arnold \. Playter, 22 O.R. 608. Mtanirg of tcjm, "carload." Hail ley V. Canadian Packing Co., 21 A.R. 119. ■it-' Pi hi Mi If I' iU 54 WORK AND MATKKIALS. ACTION FOR WORK AND MATERIALS. The pkiintiff's proofs are : 1. The contract, express or implied. 2. The performance of the work or supply of materials (if any). 3. The value (if remuneration not ascertained by contract). Where services have been performed by A for the benefit and at the request of B, and which have been charged to B, the fact that C has subsequently agreed to pay for such service, and has had judgment recovered against him therefor by A, will not pre- vent A from recovering from B, unless the subsequent agreement amounts to a novation. Herod V. Ferguson, 25 O.R. 565. Where there was a special agreement, terms of which had been performed, it raised a duty for which an indebitatus assumpsit, or common counts, lay. If contract not executed, and plaintiff has been prevented from executing it by absolute refusal of defendant to perform his part of it, or by an act done by the defendant which has incapacitated plaintiff from performing it, the plaintiff may rescind contract and sue on a quantum meruit. Planche v. Colburn, 8 Bing. 14. The right to recover for loss of profits discussed. Corbet v. Johnston, 10 A.R. 564. If there is a special agreement, and work done and adopted by the defendant, though not strictly pursuant to such agreement, the plaintiff may recover on a quantum meruit. Burn v. Miller, 4 Taunt. 745. The defendant may refuse to pay for the subject- hsM WORK AND MATICKIAI.S. 55 matter where it deviates, and in such cases the plaintiff cannot recover even on a qHa)itHm >ncruit. Ellis v. Hamlin, 3 Taunt. 52. To fix a defendant with extras, the acceptance and adoption ought to be under circumstances which imply approval and waiver of the deviation, and make it practicable to repudiate. See Re Toronto Drop Forf^c Co., 24 O.R. 191, where a lien on land for extra work was refused. Architect's certificate. Apart from fraud, the wrongful withholding by surveyor of certificate affords no ground of action. See Bad^ley v. Dickson, 13 A.R. 494. As to when a claim for work and labor, and when one for goods sold and delivered, is applicable, the rule is laid down in Atkinson v. Bell, 8 13. & C. 277. The power of amendment renders the distinctions less material than they were ; but if the claim is not properly made for work and materials, but for not accepting a chattel, it ma}' be defeated by a defence under the Statute of Frauds. See Wolfenden v. Wilson, y^ U.C.R. 442. Canada Bank Note Co. \ . Toronto AMI'. Co.. 22 O.R. 462. If there is a deviation from the terms of con- tract, the plaintiff must prove assent of defendant to the deviation. DEFENCE. The following are good : That work was done U! der special contract not executed. That defendants, being a corporation, did not con- tract, or sufficiently contract, under seal. Contracts not under corporate seal made with trading corporations relating to purposes for which they are incorporated, or if partly per- formed and of such a nature as would induce the Court to decree 5 , 56 WORK AND MATERIALS. specific performance thereof, if made between ordinary individuals will be enforced against them. Ont. IVesiern Lumber Co. v. Citizens' El. Co., i6 C. L.T. Il8. Compare /iain v. An(ierso?i, l6 C. I^.T. 143. That defendants received no benefit from work, it having been improperly executed by plaintiff. See Campbell v. McKcrrichcr, 6 O.R. 85. In action for non-performance of contract to do work, plaintiff mu;U show willingness and readiness on his part to perform, and on the defendant's part a distinct and unequivocal refusal, and that such refusal was acted upon by plaintiff. McLellan v. Wiiiston, 12 O.R. 431. The absence of a final certificate a bar to recovery by a contractor. .Sco/i V. Liverpool, 3 DeG. iv J. 334. Robinson V. Owen .Sound, 16 O.R. 121. As to a sub-contrnct, see Petriew Hunter, 10 A. R. 1 27. Although extras were done and there was some evidence as to delay by strikes, the architect was not asked for, and he did not grant any extension of time, the contract was held to govern, and the defendants were entitled to recover by way of counterclaim the sum provided by the contract as licpiidated ilamages. MeN'atnara v. Skain, 23 O.K.. 103. Construction of building contract. Neelon v. Toronto, 25 S.C.R. 579. As to engineer's certificate on contract for Dominion Public Work, see Murray \. Reg., 1 6 C. L.T. 241. Where a superintendent in charge of work was also to act as arbitrator on the contract, he was not disqualified from acting in that dual capacity. McNamee v. l^oronto, 24 O. R. 313. Farquhar v. Hamilton, 20 A.R. 86. The powers of a municipality under a contract to put on men to finish the work discussed. Mangan v. Windior, 24 O.R. 675. Interest may be allowed on amounts from time they become payable. McCullongh V. Newlove, 27 O.R. 627. IiHm MONEY PAID. 57 * > i ACTION FOR MONEY PAID. Plaintiff must prove : 1. The payment of money by the plaintiff. 2. That it was paid at request of defendant, and to his use. The payment must he proved as a fact. The ad- mission of the payee is not admissible against the defendant, unless the payee were the agent of the defendant for the purpose of making the admission. The plaintiff must prove that money was paid, and the money paid was his money. As to request, a legal obligation for another's debt will be equivalent to a previous request, as where one person is a surety for another, and is called upon to pay, the money paid may be recov- ered, though not paid by desire of principal. Exall V. Partridge, 8 T.R. 310. McNab V. Wagstaff, 5 U.C.R. 588. Where several are sureties, and one is compelled to pay the whole, he may recover in the action from each of his co-sureties a rateable proportion of the moneys so paid. Deering v. Winchelsca, III. 2 B. & P. 270. Geary v. The Gore Bank, 5 Chy. 536. This action does not lie for contribution or indem- nity against a person jointly engaged with the plain- tiff in doing a wrongful act by which ihe plaintiff is put to expense. Mcrryweather v, Nixan, 8 T.R. 186. To support this action it must appear either that the defendant was primarily liable to the third party to pay the money, or that it was paid, or the liability incurred by the plaintiff at his express or implied request, or on his guarantee. .(* ' I ii illitr 5« MONi:V LliNT. Briitain v. Lloyd, i^ M. «S: W. 762. The indorserof a bill, who has been sued by the holder and paid the amount, cannot recover the costs of the former action, for the custom of mer- chants does not make an acceptor liable for the costs of actions aj^ainst subsequent holders. Dawson v. Morgan, 9 B. & C. 618. ACTION FOR MONEY LENT. In an action for money lent, the plaintiff will have to prove the loan of his money. It is not sufficient to prove merely the payment of money to the defendant ; for in such a case the presumption is that the money is paid in liquidation of an antecedent debt. When a parent advances money to a child it is presumed to be a gift. A loan of money secured by mortgage is recover- able as money lent if there is no covenant to pay the amount. Where a simple loan of money is secured by a covenant to repay the money, the creditor's only remedy is on the covenant. It is a defence that a simple contract has been subsequently merged. As an amendment would now be allowed, this distinction is not so important. Re Ross, 29 Chy. 385. 5 f ii ACTION FOR MONEY HAD AND RECEIVED. The plaintiff must prove the receipt of the money by the defendant, and his own title to recover it as received for him. Hit MONEY HAD AND UEClilVHU. 59 Tlic plaintiff must prove that inone\' has bcon re- ceived. He must j,Mve (,'vidence of some [)articular sum. Haxcndulc v. G.ll'.A'. Co., 32 L.J., C.P. 225. The plaintiff must prove that it was his money, or that the money has been received to his (plaintiff's) use by deft'udant. Where money has been paid on a considt.'ration which has wholly failed, it may be recovered in this action by the party who pn'd it. Conduct mor jy received with a subpcena may be recovered by the party who paid it, where the attend- ance of the witness has been countermanded and he has incurred no expense. See U.S. Exp. Co. V. Donohoe, 14 O.R. 333. Martin v. Andrcics, 7 IL & B. i. Where a party payin<< money upon a forj^^ed instru- ment has not been j^uilty of any want of that caution which, on account of the character he fills, he is bound to exercise, and has not by his conduct affect- ed the rights of any other parties to the instrument, he may in general recover the money paid under a mistake. Money paid under mistake of law cannot in general be recovered. Chesney v. ^7. John, 4 App. R. 150. Clark V. Eckroyd, 12 App. R. 425. In this case, held, that demand for repayment or notice of mistake necessar\' before action. See Freeman \. Jeffries, L.R. 4 Ex. 189. The plaintiff can only rescind a contract on the ground of fraud when he can disaffirm the contract and remit the defendant to his former state. Urqiihart v. Macpherson, 3 App. Cas. 821. Money paid under mistake of fact can be recovered. Hi I i I ft 1 ( ) ( iHMi: 11 I*i3 60 MONEY HAD /.ND RECEIVED. See The Law Socy, U.C. v. City of Toronto, 25 U.C.R. igg. Baldwin v. Kin<^stone, 18 A.R. 63. Thus, overpayment to a legatee. Barber v. Clark, 20 O.R. 522. Money obtained by fraud can be recovered. McMaster v. Geddes, 19 U.C.R. 216. Where a man has been obliged involuntarily and by wrongful duress to pay, the money may be re- covered. Where an action is brought and a person pays the demand "without prejudice," he cannot recover the money so paid. Bruwn V. McKiiialiy, 1 Esp. 279. Money recovered by regular legal process, though in fact not due, cannot be recovered in this action. Marriot v. Hampton, 7 T.R. 269. A wrongful receipt by the defendant of the proceeds of goods wrongfully sold may be treated as a receipt to the plaintiffs use by waiving the tort. Lytligoe v. Vernon, 5 H. & N. 180. Money stolen by the defendant from the plaintiff constitutes a debt from defenda^.t to plaintiff. See Wells V. Abrahams, L.R. 7 Q.B. 554. Money paid on illegal contracts is recoverable : 1. When the contract is executory, and the plain- tiff and defendant are in pari delicto. 2. Money is recoverable from a stakeholder in whose hands it has been deposited on an illegal con- sideration, though executed by the happening of the event upon which a wager is made. See Trebilcock v. IF't/,s7/, 21 A.R. 56. 3. The money is recoverable though the contract be executed, if the plaintiff be not in pari delicto \\\th the defen 'ant. ACCOUNT STATED. 6i 4. Money is not recoverable where the contract is executed and plaintiff is in pan delicto. The dama.i^es recoverable by a non-trading deposi- tor in a bank, or the wrongful refusal of the bank to pay, are lunited to the interest on the monev. Hcndev^un v. Bank of Hamilton, 25 O.R. 641. The rights of a trader are defined in Marzeiti v. Williams, i B. & A. 415. And discussed in Rolin V. Steward, 14 C.B. 594. The onus of showing that a sohciKjr who is in possession of a mortgage, and collects the interest, has authority also to collect the principal is upon the mortgagor. In re Tracy, 21 A.R. 454. ACTION ON AN ACCOUNT STATED. The plaintiff must prove an absolute acknowledg- ment ; a qualihed acko jwledgment is not sufhcient. See McKay v. Grinley, 30 U.C.R. 54. Green v. Biirtch, 1 C.P. 313. An I O U is evidence of an account stated with the person who hoi is it ; and if another person was meant, the defendant must prove it. Fcsenmny.r v. Adcock, 16 M. cS: \V. 449. ACTION AGAINST INNKEEPERS. Generally, an action ex contractu for some breach of the contrar: express or implied, which the inn- keeper has entc- \d into, or professes to be ready to enter into with iiis guest in relation to his personal entertainment. 62 INNKEEPERS — PAWNBROKERS. Newcombe v. Anderson, ii O.R. 665. Ar innkeeper at Common Liivv is answerable for the safe keeping of the goods of a guest, but it is only in respect of the goods of a guest that he is so liable. The Common Law liability has been limited by R.vS.O., 18S7, c. 154, s. J. By section 2 of that Act an innkeeper has a lien on the baggage and property of his guest for accom- modation furnished, and has the right to sell the same after three months on giving one week's notice bv advertisemerEt. Under R.S.O., c. 104, s. L22, where a person who is intoxicated is s^r-Dpned wmm liquor, causing deatli, an action lie? agamsr. the cavern -keeper supplying the liquor See(/'; H«bl, 2.6 O.Iv., at page 643. ACTION AGAINST P N [) )KERS. By R.S.O., 1887, c. 155, s. I, ever}- person whu takes or receives by way of pawn, pledge, or exchange any goods for the repayment of money lent thereon shall be deemed a pawnbroker within the meaning of that Act. When goods are pawned with a pawnbroker a written or printed memorandum must be given to the person pawning, containmg a description of the goods, the amount advanced, the date, and names and residence of the parties. The holder of this memorandum is, on presentation thereof and de- mand, entitled to the goods on payment of the pawn- broker's claim. Provision is made in the statute for sale of goods, and for recovery of goods when illegally detained. CARRIE KS. 63 ACTIONS AGAINST CARRIERS. Carriers may be of goods or of persons, or of both, and they may be carriers by land and b}- sea. A common carrier is a person who undertakes to transport from place to place, for hire, the goods of such persons as see tit to employ hirn. He is bound at Common Law to receive and carry all goods reasonably offered to him, and for which the persoaa bringing the goods is ready and willing and offers to pay reasonal)le hire and reward. Pickford V. Grand Jiinctioii Ky. Co., 8 M. &. \V. 372. He is also an insurer of the goods against all accidents, except the act of God or the Queen's enemies, and whether the loss occurs by accident, robbery, violence, or the negligence of third persons. A carrier may limit generally his business to cer- tain goods, and is then not obliged to carry other goods. Johnson v. Midland Ry. Co., 4 Ex. 367. Where the carrier delivers a ticket or other notice to the person from whom he receives the articles, specifying the terms on which he agrees to carry, and the customer assents, or does not dissent, the terms of the notice will establish a special agree- ment, and will exclude the Common Law contract so far as it is varied by those terms. If the cus- tomer in such a case declines the terms, and wishes to fix the carrier with the Common Law liability, he must tender or offer a reasonable compensation, and sue for the refusal to receive the goods. Garton v. Bristol, 30 L.J.OT). 273. By the Dominion Railway Act, 1888, passengers and goods must be conveyed on due payment of tht; toll, freight, or fare lawfully payable therefor. Tolls are provided for by the Act. See also post, *' Negli- itii f'4 CAKRIKRS. gence of Railway Companies," under *' Negligence." Every person aggrieved by any neglect or refusal to convey has an action therefor against the com- pany, from which action the company shall not be relieved by any notice, condition or declaration, if the damage arises from any negligence or omission of the company, or of its servants. In spite of s. 246(3) of Dominion Railway Act, 1888, a railway company may enter into a special contract for the carriage of goods and limit its lia- bility as to amount of damages to be recovered for loss or injury to such goods arising from neglig'.Mice. Robertson v. G.T.R., 24 S.C.R. 611. See Vogel v. G.T.R., 11 S.C.R. 612. Cobban v. C.P.R., 26 O.K., at page 759. Robertson v. G.T.R., 21 A.R. 204. ''Baggage" means not only personal baggage, such as every passenger is allowed to carry without extra charge, but also commercial baggage. Dixon V. Richelieu, 18 S. C.R. 704, affirming 15 A.R. 647. The responsibility of a railway company as carriers or warehousemen discussed. Milloy V. G.T.R., 21 A.R. 404. Provisions are made for interchange of traffic be- tween companies. Connecting lines, misdelivery of goods. Grant V. Northern Pac. R.W. Co., 22 O.R. 645, sus- tained on appeal, 21 A.R. 322. As to liability of carriers by water, see R.S.C., c. 82. Goods that are brittle or liable to injury must be safely packed by the consignor, or the carrier will not be liable for injury done to them in carrying if he has used due care. Hart v. Baxendale, 16 L,T., N.S. 390. CAKKIEKS. 65 In an action /or loss of or iiijnry to goods, the plain- tiff must prove : 1. That the defendant is a common carrier. 2. The deHvery of the goods for conveyance and the contract, if special. 3. The loss or injury. 4. The damage. In an action /or refusal to carry, the plaintiff will have to prove, besides the defendant's character as a common carrier, the tender of goods for convey- ance and the refLiSctl of the defendant to accept the goods for that purpose, although the plaintiff was then ready and willing to pay a reasonable reward in that behalf. The action is one of tort for refusal to perform a public duty, whereby the plaintiff has sustained special damage. The plaintiff need not aver a strict tender of the fare ; it is enough that he was ready to pay. But where the carrier has limited his liability unless a certain charge be paid, payment or tender of that charge must be proved. nyid V. Pickford, 8 M. & W. 443. The proper person to sue as plaintiff is the person in whom the property was vested when lost or dam- aged. Hence generally the consignee is the proper plaintiff. The measure of damages is the market value of the goods at the time and place at which they au^M to have been delivered ; and if there is no madfeet for the sale of such goods at the place, the hhv\ must ascertain their value by taking their prnx^ at the place of manufacture, together with the oust of car- riage and a reasonable sum for importc s profits. Vickers v. Wilcocks, 2 Sm. L. Cas. 805. M^'Q I lit: i 'i! % i," ;«' !<*: ; I 66 CARRIERS. LETTER CARRIERS, Postmaster-General is not a common carrier, but postmasters are liable for their own personal negli- ^^ence. 1 'ASS K NC. 1'. R C A R 1< I E KS. Carrie's of passenf^ers are not insurers of the per- son, and are responsible onl)' for want of due care. Christie v. (rriggs, 2 Camp. 8i. If a company allei^e that the passenger has not complied with the conditions of a by-law, they must prove that they have strictly observed the by-law on their p-ar*^. If, in consequence of wi'ongful delay or erroneous information of carrier, passenger is reasonably obliged to hire another conveyance or stop a night on the road, the expenses may be recovered, but the jury cannot give general damages for loss of time, (trouble, etc. . Hobbs V. L. c^ SAV.R. Co., L.R. lo O.K. iii. The contract between a person buying a railway ticket and the company implies th^t such ticket shall be produced and delivered up to the conductor of the train on which such person travels ; and if he is put off a train for non-delivery of it, the company is not liable to an action. G.T.R. V. Beaver, 22 S.C.R. 498. Ticket "via direct line" discussed, and authority of a ticket seller to make representations binding on the company upheld. Dancey v. G.T.R. , 20 O.K. 603. A passenger rightfully travelling on his ticket is not bound to leave the train at the conductor's order at the peril of not being able to recover CARRIERS. 67 damages for an assault committed in expelliiifj him by force. S.C. 19 A.R. at page 672. Special conditions on a passenger's railway ticket must be brought to notice of passenger, or he will not be bound by them. E^ate V. C.P.R., 18 S.C.R. 697, reversing 15 A.R. 388. PASSENGERS' LUC.GAC.K— LIAHILITV TIIKRKFOR OF COMMON CARRIERS. On this point see Stewart v. London & X.W. Ry. Co., 3 H. & C. 135, where it was said that a carrier undertakes no responsibility in respect of the goods of a passenger beyond that which he undertakes with respect to the passenger himself. In other cases it h'.s been ruled that a carrier of passengers is liable to the ordinary obHgations of common carriers. Stewart V. London was over-ruled in Cohen V. S. E. Ky. Co., 2 Ex. D. 253 C.A. The rule may now be said to be that a carrier of passengers' personal luggage is liable to the ordinary obligations ol comm')n carriers. As to carrying merchandize as luggage, see Belfast, etc. v. Keys, 9 II.L.C. 556. < li' F»ART II. DEFENCES IN ACTIONS ON SIMPLE CONTRACTS. In some few instances it has been necessar}- to point out certain special defences which may be raised to particular actions. There are, however, other defences which may be a sufficient answer to any species of action. Such latter defences may be pleaded in addition to the special defences in all cases where the special defences have been named. It is convenient to collect such defences of general application. They are presented alphabetically, more in the shape of definition than at any length. Their application to any given case will depend on the circumstances of the case. The definition of the defence will be some guide as to its applicability. Before entering on the subject of the defences themselves it may be well to recapitulate the sub- stance of the rules of pleading relative to defences. First, as to admissions : C.R. 400. — Each party is to admit such of the material allegations contained in the statement of claim or defence of the opposite parly as are true ; or he may give notice Ijy his own sla;ement or otherwise that he admits, for the purposes of the action, the truth of the case generally, or of any part of the case stated or referred to in the statement of claim or defence of the opposite or other party. C.R. 401 provides for the manner of making admissions in plead- ing. Second, as to allegations in pleadings : (^R. 402. — Each party in any pleading must allege all such facts not appeiring in the previous pleading, if any, as he means to rely on, l^EFENCKS IN ACTIONS ON SIMI'LK CONTRACTS. 69 and must raise all such grounds of defence or reply, as the case may he, as, if not so raised on the pleadings, would be likely to take the oppo- site party by surprise, or would raise new issues of fact not arising out of the pleadings, as, for instance, fraud, or that any claim has been barred by the Statute of Limitations, or has been released. C.K.403. — Save as otherwise provided,* the silence of a pleading as to any allegation contained in a previous pleading of the opposite |)arty is not to be construed into an iinplied admission of the truth of such allegation ; and any allegation introduced for the purpose of pre- venting such im|)lied ndiiiission, and not for the purpose of making intelligible the grounds of ilefence, is to be considered impertinent. C. R. 413. — Where a contract is alleged in any pleading a bare denial of the contract by the opposite party sh.ill be construed only as a denial of the making of the contract in fact, and not of its legality or of its sutilciency in law, whether with reference to the Statute of Frauds or otherwise. CR. 416 relates to an action for the recovery of land. C. R. 417. — Nothing in these rules contained shall affect the right of any defendant to plead not guilty by statute, t And every defence of not guilty by statute shall have the same effect as a plea of not guilty by statute has heretofore had. But if the defendant so plead, he sha not plead any other defence without the leave of the Court or a Judge. See also C. R. 407, 408, and 409. It is necessary to refer to these rules of pleading, because the course to be taken at the trial depends, in the first instance, on the pleadings before the Court, and the Court, under C.R. 402, will not allow a party to be taken by surprise. Therefore, while amendment is liberally allowed, the countervailing principle of C.R. 402 is frequently applied. We now proceed with the definition of the various defences. They appear in alphabetical order as follows : Accord and Satisfaction. *C.R. 410.— Facts presumed need not be stated. C.R. 411. — Denial of represen- tative capacity of opposite party recjuired specifically. + The plea of " not guilty by statute" puts in issue not only the defences pecu- liar to th« statute, but all that would have arisen at Common Law ; e.g. , in an action or excessive distress a plea of " not guilty," under 1 1 Geo. II., c. ig, «. 21. puts in ssue not only the matter of justification, but also the tenancy and ownership of the goods. The words " by statute," together with the reference to the statute, must appear in the margin of the .statement of defence. I ! ,'|l !iii I'll I'; I "i; ; li!: li' \ 70 ACCORD AND SATISFACTION — ALTERATION. Alteration. Duress. Fraud. Frauds, Statute of. Ill('(,Mlily. Infancy. Intoxication. Limitations, .Statutes of, Mer{i;er. Payment. Purchase without notice of Registry Title. Release. Rescission. Setoff. Tender. Undue Influence. ACCORD AND SATISFACTION. An a/^^reement which need not be by deed, the effect of which is to discharge the right of action possessed by one of the parties to the a^a*eement. See Judicature Act, 1895, s. 53 (7). Brundage v. Hoivard, 13 A.R. ^^j. Mason v. Johnston, 20 A.R. 412. Haist V. G.T.R., 22 A.R. 504. The acceptance of a payment under a composition deed discussed. Weese v. Banficld, 22 A.R, 488. Compare cases of Loonier \. Marks, 11 U.C.R. 16. Brown v. Jones, 17 U.C.R. 50. Paisley v. Broddy, 11 P.R. 202. ALTERATION. Leading case, Pigofs Case, 11. Rep. 1. An immaterial alteration by a stranger does not avoid a deed. 2. If made by a party interested, the alteration will avoid as against him, whether material or not. DllCKSS — FRAUD. 71 3. A in;iterial iiltcratioii by a stranj^er avoids it. The sucond resolution in Pijjjot's case was dis- sented from in Aldviis v. Cormcall, L.R. \ Q.l>. 573; and it is the rule that an alteration which has no effect (jn the liability of either piirty, as stated in the contract, will not vitiate the instrument. As to the third resolution, it has also been ques- tioned. As to whether a material alteration by a stran^'er would avoid an instrument or not would depend on whether the j)laintifr was responsible for the custody of the document. Saylcs V. Broicn, 28 Chv. kj. SommcrvilU v. Rue, 28 Chy. 618. DURESS. See St. Tho)Has v. Yearsley, 22 A.R. 340. FRAUD. The fraud must be some concealment or deception practised by the plaintiff with respect to the very transaction in question ; the illegality of the tran- saction from other reasons is not sufficient. Green v. Gosden, 3 M. & Gr. 446. Fraud means moral fraud, and not merely an innocent misrepresentation. Panama Mail Co. v. Kennedy, I..R. 2 Q.H. 580. Moens v. Haywurth, 10 M. c\: W. 147. Burrows v. Leavens, 29 Cvhy. 479. In order that a representation may be actionable it must be fraudulently made. White V. Sa^c, 19 A.R. 135. A creditor who assents to .and signs the resolution, \ ut before doing so makes a secret bargain with the debtor for payment of his chiim in full, is not debarred from suing the deblt)r for the original indeljted- ness upon default in payment of the con)position according; to the terms v\ sAk %. ^ ^^ ^^'^^-^ IMAGE EVALUATION TEST TARGET (MT-3) y / O // f^^ V y. ^ 1.0 I.I IM IIM iliu i^ " 2.0 1.8 1.25 1.4 1.6 ^ 6" — ► V] *» "^ rv^ ■<- % '^m # nil \ i! I 72 STATUTE OF FRAUDS— ILLEGALITY. of the resolution, the debt not being, in fact, released or otherwise discharged. ITfese V. lianfield^ 22 A.R. 488. Costj withheld from an executor because he had misled plaintiff. Tenute v. IVaish, 24 O.K. 309. FRAUDS, STATUTE OF This defence has been specially referred to under the headings, '* Action on Sale of Real Property," ** Action on Guarantee," and ** Action for not Accept- ing Goods." Rule now is that if legal part of contract in ques- tion can be severed from that which is illegal, the former will stand good, whether the illegality exist by statute or Common Law. K itching v. Hicks, 6 O.R. 739. Cameron v. Cameron, 14 O.R. 561. ILLLGALITV. Where a contract is illegal or immoral it cannot be enforced. The maxim of in pari delicto potior est conditio defen- dentis is important in considering the question of illegality. The test for determining whether or not the plaintiff and defendant were in pari delicto is by con- sidering whether plaintiff could make out his case otherwise than through the medium and by the aid of the illegal transaction to which he was a party. Taylor v. Chester, L.R. 4 QB. 309. The rules as to recovering money paid on illegal contracts have been stated under the heading, ** Action for Money Had and Received." In an action for work and labor the illegality of the transaction will be a defence. A party will not be permitted to recover either for work and ILLEGALITY. 73 labor done or materials provided where the whole combined forms one entire subject-matter made in violation of the provisions of an Act of Parliament. Bensley v. Bignoldj 5 B. & A. 335. A contract which amounts to maintenance is illegal, and cannot be enforced. Bradlangh v. Newdegaie, 11 Q.B.D. i. In order that a deed operating under the Statute of Uses should be void either under the Statute of Maintenance or by force of the Common Law in affirmance of which the statute was passed it is essential that the grantor be disseized. The Crown cannot be disseized. Webb V. Marsh, 22 S.C.R. at p. 441. A contract for transfer of property for an illegal or immoral purpose is void ; but mere knowledge of the transferor of the intention of the transferee so to apply it, will not avoid the contract unless from the nature of the property and the character and occupation of the transferee a just inference can be drawn that the transferor must have so intended. Clark V. Hagar, 22 S.C.R. 510. No action lies for goods knowingly sold for illegal purposes. An agreement not to prosecute for a criminal offence is illegal ; but, unless given in pursuance of such an agreement, securities given to a creditor by a debtor whose debt has been contracted under such circumstances that might have rendered him liable to a prosecution may be enforced. Flower v. Sadler, 10 Q.B.D. 572. Davis V. Hewitt, 9 O.K. 435. Siimmerfeldt v. Worts, 12 O.K. 48. R.S.O., 1887, c. 203, An Act to Prevent the Profan- ation of the Lord's Day, prevents sales or ordinary / ! 74 INFANCY !| 1 < < I r i /s Ill work on Sunday. By section 8 all sales and agree- ments made on Sunday are void. The English Act on the same point is 29 Charles II., c. 7. A farmer does not come within the pro- visions of this statute, but by c. 62 of Ontario Statutes of 1896 a *' farmer " is made subject to the provisions of R.S.O., c. 203. See Crosson v. Bigley, 12 A.R. 94. A cab-driver is not included in the Act. Reg, V. Somers, 24 O.R. 244. Injunction refused applied for to restrain a street railway company from operating their road on Sunday. Atty.-Gcn. v. Niagara Falls, etc., Co., 18 A.R. ^53. Day of performance of a contract falling on Sunday, effect considered. Ciidncy v. Giles, 20 O.R. 500. All contracts in restraint of trade are bad, unless they are natural and not unreasonable for the pro- tection of the parties in dealing legally with some subject of contract. See Mitchell V. Reynolds, i Sm. L.C. W idler v. Darling, 9 O.R. 311. Schrader v. Lillis, 10 O.R. 358. Turner v. Burns, 24 O.R. 28. Cook V. Shaw, 25 O.R. 124. One who is a party to an immoral contract cannot enforce it. INFANCY. Infancy is a good defence, unless the action be for necessaries. The question of what are necessaries is to be governed by the fortune and circumstances of the infant, and the proof of those circumstances lies on the plamtiff. A contract by an infant other INSANITY— INTOXICATION. 75 than for necessaries is voidable only, not void, and may be ratified by him after he attains his majority. The ratification, to be good, must be in writing. R.S.O., 1887, c. 123, s. 6. An action by an infant without next friend, infant may be bound by proceedings. Millson V. Small y 25 O.K. 144. May be proved by calling any person who can speak as to the time of birth, or by declarations of deceased members of family. Extracts from the records of the Registrar-General of the Province, under R.S.O., 1887, c. 40, s. 23, are prima facie evidence of the facts therein stated. If defendant of age when action commenced, the date of contract must be shown as well as fact of non-age. Infancy does not prevent running of Statute relat- ing to Medical Practitioners (R.S.O., c. 148, s. 40). Miller v. Ryerson, 22 O.R. 369. INSANITY. The contracts of a lunatic, entered into fairly and bona fide with a person ignorant of the incapacity, where the transaction is in the ordinary course, and wholly or in part executed, are valid. Insanity, and the probable knowledge of it by the opposite party, may be proved by showing that it existed and was apparent either shortly before or shortly after the alleged contract. Beavan v. McDonnell, g Ex. 309. INTOXICATION. ■ A contract entered into by a person in a state of intoxication is voidable, not void. Matthews v. Baxter, L.R. 8 Ex. 132. i 1 i 76 STATUTE OF LIMITATIONS. I> M LIMITATIONS, STATUTE OF The statutes relating to limitation of actions in Ontario are: R.S.O., i887, c. 60 and c. 11 1 ; stat- utes 21 James I., c. 16 ; 4 and 5 Anne, c. 16. By the Trustee Act of 1891 (Ont.) the Statutes of Limitation now run in favor of trustees : See Stephens v. Beatty, 15 C.L.T. 398. Upon issue joined on this defence burden of proof lies on plaintiff. Time of limitation is to be computed exclusive of day on which cause of action arose. Statute runs from time of breach of promise or contract, and not discovery of it. In case of fraudu- lent concealment, from its discovery. A note payable on demand is payable immediately, and the statute begins to run from that date. Norton v. Ellam, 2 M. & W. 461. Where the note is payable after sight, the statute runs only from the time of presentment. Holmes v. Kerrison, 2 Taunt. 323. Where the cause of action does not arise until after request made, the statute will only run from the time of such request. Gould v. Johnson, 2 Salk. 422. By 21 Jac, I. c. 16, s. 3, actions of account, and on the case (other than concerning the trade of mer- chandise between merchants or their factors or servants, and other than for slander), actions of debt on lending or contract without specialty, or for rent in arrear, are to be brought within six years from the cause of action, and not after. The exception of merchants' accounts is abol- ished, and by R.S.O., 1887, c. 60, s.2. All actions of account, or for not accounting, or STATUTE OF LIMITATIONS. 17 for such accounts as concern the trade of merchan dise as between merchant and merchant, their factors and servants, must be commenced within six years after the cause of action. Limitations of other actions are as follows : Twenty years. (a) Actions for rent upon an indenture of demise. (6) Actions upon a bond or other specialty, except a mortgage covenant. (c) Actions upon a recognizance. Six years. (d) Actions upon an award where the submission is not by specialty. (e) Actions for an escape. (/) Actions for money levied on execution. Two years. (g) Actions for penalties, damages, or sums of money given to the party aggrieved by any statute. R.S.O., 1887, c. 60, s. I. Ten years, {h) Actions upon any covenant contained in any mortgage made after ist July, 1894 (Ont. Acts, 1895, c. 17). •' State of nature " in sub-sec. 4, sec. 5, R.S.O., c. in, is used in contradistinction to " residing upon or cultivating." Unless the f^.ten- lee of wild lands or some one claiming under him has resided upon the land or has eultivated or improved it or actually used it, the twenty years' limitation applies. Clearing or cultivating by trespassers will not avail to shorten the limit. Qiuere — Is fencing a lot sufficient ? Stovelw Gregory^ 21 A.R. 137. Vacant land as between mortgagor and mortgagee. Delaney v. C. i^. A'. , 2 1 O. R. 1 1 . An acknowledgment to a person who afterwards becomes adminis- trator is good. {^Quiere.) Robertson v. Biirrilly 22 A. R. 356. As to tenant in common. ///// v. Ashbridge, 20 A.R. 44. J!: !l u i 78 STATUTE OF LIMITATIONS. Htwardx. O'Dofiohuc, 18 A. R. 529. Reversed 19 S.C.R. 341. Compensation paid by railway company to life tenant. Young \. Midland, 19 A.R. 265. The provisions of R.S.O., c 135, (Lord Campbell's Act) are not affected by special railway legislation (e ^'-., Railway Act, 188S (Dom. )• s. 287). Zimmcr v. G. 7.K., 19 A.R. 693. A payment to a mortgagee by a party not interested in the mort- ga^»ed premises will not enure to the benefit of the mortgagee. Trust &f Loan v. Stevenson, 20 A.R. 66. In a company there is no liability to pay for shares until a call is made and notice thereof given to the shareholder, and until that time the statute does not begin to run against the company. Re Haggc^t Bros, Co., ig A.R. 582. ■ y DISABILITIES. In case a plaintiff is, at the time of the cause of action accruing, an infant or non compos^ the six years run from the removal of the disability. A plaintiff resident without the limits of Ontario has no longer period of time to commence an action than if he were resident in Ontario when the cause of action accrued. In the case of a defendant without the limits of Ontario at the time of the action accruing, the action may be brought within such times as are above mentioned after the return of the absent person to Ontario. In cases where some joint debtors have been within and some without Ontario, no further time is allowed to commence action against any of the joint debtors who were within Ontario when the action accrued by reason only that some other of the joint debtors were at that time without Ontario. A judgment recovered in such a case will not be a bar to another action against the joint debtor who was without Ontario. STATUTE OF LIMITATIONS. 79 SUBSEQUENT ACKNOWLEDGMENT. The effect of the Statute of Limitations may be avoided by proof of an unqualified acknowledgment of the debt within six years, which is evidence of a new promise to pay the debt, and not a mere revival of the original promise. By the Act respecting Written Promises and Ac- knowledgments of Liability, R.S.O., 1887, c. 123, a written memorandum is required .o take the case out of the Statute of Limitations. Part payment of a debt takes a case out of the statute, as evidence of a fresh promise to pay the debt. The payment must be such as to warrant the jury in inferring an intention to pay the rest. It must appear that the payment was on account of the debt for which the action was brought, and that it was made as part payment of a greater debt. A part payment withm six years, though proved only by an oral cr unsigned admission of the de- fendant, will take the case out of the statute. Cleave v. Jones, 6 Ex. 573. An acknowledgment, or promise, or part payment, by one of several co-contractors, does not make the co-contractors liable to lose the benefit of the statute. R.S.O., 1887, c. 123, s. 2. ' The acknowledgment or promise may be made or contained by or in some writing signed by the party chargeable thereby, or by his agent duly authorized to make such acknowledgment or promise. An admission of a debt made to a mere stranger can only repel the statute when it can be properly left to the jury as equivalent to or implying a promise to the plaintiff to pay him. ■in ; t *! ■' I :v [ ( I; "fii. : i: So MERGER— PAYMENT. The construction of a doubtful document given in evidence to defeat the statute is for the Court and not for the jury, though if intrinsic facts are adduced in explanation the facts are for the consideration of the jury. Smith V. Thome, i8 Q.B. 134. Whether the promise be qualified or not is a ques- tion of construction for the Court and not for the jury, except where extrinsic evidence affects the con- struction. Rotitledge v. Ramsay, 8 A. & E. 221. Wilson V. Rykert, 14 O.R. 188. MERGER. The technical explanation of merger is as follows : Where a debtor gives his creditor a higher security for the debt due and co-extensive with it, the debt is merged by operation of law irrespective of the inten- tion of the parties. Price V. Moulton, 10 C.B. 561. Under the heading of ** Action for Money Lent " this defence has been alluded to, and it has been stated that the present powers of amendment render it much less available than formerly. PAYMENT. Most usual way of proving payment is by produc- ing receipt. To an agent or by an agent, good. In general, the party who pays money has a right to direct the application of it ; but where money is paid to a creditor generally, without any specific appropriation to the party paying, and the creditor has several demands against the party paying,, he may apply the money paid to whichever of those demands he pleases. Clayton's Case, i Mer. 572. PAYMENT. 8x In some instances, and in the absence of any proof of special appropriation, the law will direct or pre- sume the application of money paid generally. Appropriation is a question of intentiorr. See Griffiths. Crocker^ i8 A.R. 370. Of this nature are accounts current with bankers and others, where there are various items of debt on one side and credit on the other, occurring at different times, and no special appropriation is made by the parties ; successive payments will then be applied to the discharge of antecedent debts in the order of time in which they stand. Kinnaird v. Webster, 10 Chy. D. 139. There is a distinction between cases where pay- ment is made by bill or note payable to bearer in exchange for goods sold at the time, and those where such a bill or note is given for a pre-existing debt. In former case, barter with risks ; in latter case, not so. The legal effect of accepting on account of a debt a bill or note not treated as cash is that of a condi- tional payment. It implies an agreement to suspend the remedy except in the case of specialty debts or rent, in which last cases no such implication is held to arise. A payment may be made by mere transfer of figures in an account. Eyles V. Ellis, 4 Bing. 112. If goods be accepted in satisfaction of a debt, this constitutes payment. Cannan v. Wood, 2 M. & W. 465. Effect of payment into Court. Patton V. Laidlaw, 26 O.R. 189. " Payment of money to a creditor " under R.S.O., 124, s. 3, s-s. I. f 1 I I 82 PURCHASE WITHOUT NOTICE. Annstrouf; v. Hcmsirect, 22 O.R. 336. Overruled, Davidson v. Fraser, 23 A.R. Bankers to whom as agents a bill of exchange is forwarded for collection can receive in money only, and cannot bind the principals by setting off the amount of the bill of exchange against a balance due by them to the acceptor. Dono^h V. Gillespie, 21 A.R. 292. Effect of payment by cheque. Sawyer v. Thomas^ 18 A.R. I2g. ,! I PURCHASE WITHOUT NOTICE OF REGISTRY TITLE. On this defence see R.S.O., c. 100, s. 36, and R.S.O., c. 102, s. 32. Severance of one lot by conveyance by owner of two lots implies grant of easement over the adjoin- ing lot. Israel v. Leith, 20 O.R. 361. A municipal council builds a sewer through land with oral consent of owner. A purchaser of the land without notice of the consent or of the existence of the sewer is protected by the Registry Act. Jarvis v. Toronto, 21 A.R. 395, referring to Ross v. Hunter, 7 S.C.R. 289. The earlier cases were : - Bell v. Walker, 20 Gr. 538. Grey v. Ball, 23 Gr. 390. Miller v. Brown, 3 O.R. 210. See also Pierce v. Canada Permanent, 24 O.R. 426, which postponed to a second mortgage advances made to the mortgagor under a building mortgage prior in time to the second mortgage. This state of KLLEASli. ^3 the law was remedied by statute, 1894 (Ont.)> c. 34, but see the cases cited in Hutson V. Valuers, 19 A.R. 161. Constructive notice. There are two cases where the doctrine applies, (i) Where the party charged has notice that the property in dispute is encumbered or in some way affected in which he is deemed to have notice of the facts and instruments, to a knowledge of which he would have been led by due enquiry after the fact he actually knew. (2) Where the conduct of the party charged evinces that he had a suspicion of the truth and wil- fully or fraudulently determined to avoid receiving actual .; 'ice of it. Moore v. A'ane, 24 O. R. 548. KELKASE. After breach a contract can only b-^ dischargcu by release unu^i seal or by accord and satisfpct'. on. Be^^re breach it may be dischaif^ed by parol. Release of one of two joint or joint and several debtors is a discharge of all, Nicholson v. Revill, 4 A. & E. 675 ; but not so the release of one co-debtor, reserving remedies against the other, Willis v. De Castro, 27 L.J.C.P. 243, or a release of the principal debtor, reserving rights against a surety. Bateson v. Gosling, L.R. 7 C.P. 9. An unqualified covenant not to sue has the effect of a release on the ground of avoiding circuity of action. Ford v. Beech, 11 Q.B. 853. Fraud can only be relied on in reply to a release contained in a contract when the plaintiff can dis- affirm the contract and remit the defendant to his former state. See Urquhart v. Macpherson, 3 App. Cas. 821. A settlement of a pending action agreed to by an illiterate person without communication with her if ; i lU' m , 1 1 ;i! i'i! l!if ■ :ii V.l: ,:ii ^h. ' illil 1 1. m 1 84 RESCISSION. solicitor and without fair disclosure of facts may be tested in the pending action if pleaded in bar. Johnston v. G.T.R., 21 A.R. 408. Release of one partner, Allison V. McDonald^ 20 A.R. 695. (See under Guarantee.) RESCISSION. Before breach a simple contract may be rescinded and discharged by a mutual oral agreement. A deed cannot be revoked or discharged by parol or writing not under seal. West V. Blakcway, 2 M. & Gr. 729. An executory agreement in writing not under seal may, before breach, be discharged by a subsequent oral agreement. After breach it cannot be dis- charged except by release under seal or accord and satisfaction, Willouf^hby v. Backhouse, 2 B. & C. 824, or by a valid agreement, substituting a new cause of action in place of the old, for an invalid agreement will not discharge the former one. Noble V. Ward, L.R. i Ex. 117. A distinction is to be observed between simple contracts in writing under the Statute of Frauds and contracts at the Common Law. In the former case an oral contract will not be admitted to show a sub- sequent variation in the written contract. Goss V. Lord Nugent, 5 B. & A. 58. But it is otherwise if the contract is not subject to the control of a statute. Where such a contract has been reduced into writing it is competent to the parties at any time before the breach of it, by a new contract not in writing, either altogether to waive, SKT-OFF. 85 dissolve, or alter the former agreement, or to qualify the terms of it, and thus to make a new contract, to be proved partly by the written rigreement and partly by the subsequent oral terms engrafted upon it. Goss V. Lord Nugent, 5 B. & A. 65. A contract within the Statute of Frauds can, it seems, be wholly discharged orally. Midland R. Co. v. Ontario Rolling Mills, 10 A.R. 677. See Hayes v. Ehnsley, 23 S.C.R. 623. SET-OFF. Founded on 2 Geo. II., c. 22, s. 13. 8 Geo. II., c. 24, s. 45. A defendant in an action may set up by way of counterclaim against the claim of the plaintiff any right or claim, whether the same sound in damages or not. The distinction between a set-off and counter- claim is still material for some purposes, and espe- cially with reference to costs. A set-off alleges a liquidated demand due from the plaintiff to the de- fendant, which balances the liquidated claim of the plaintiff, and shows that on the whole account between the plaintiff and the defendant nothing is due to the plaintiff. A set-off to an amount equal to the plaintiff's claim is, therefore, a defence to the action. A counterclaim is in the nature of a cross action by the defendant, which may be maJe, although in respect of or against a claim for unliquidated dam- ages. Stooke V. Taylor, 5 Q.B.D. 576. Where the defendant succeeds on a simple set-off, or on a counterclaim founded on matters that would have been a defence prior to the Judicature Act, and ,1 : ^ 86 SET-OFF. I ■■ J 1 1 to an amount not less than the plaintiff's claim, he has a complete defence to the action, and is there- fore entitled to his costs. See Stookc V. Taylor, ubi sup. Where, however, the counterclaim is in the nature of a cross action, and the plaintiff is successful on his claim, and the defendant also on his counterclaim, the plaintiff is entitled, even although the defendant recover the larger amount, to the general costs of the action. The defendant is enLitled to the costs of the counterclaim ; but there is no apportionment of such costs as, if the claim and counterclaim had been separate actions, would have been incurred in each of them. ]Vard V. Morse, 23 Chy. D. ^yy. Where the claim and counterclaim are both dis- missed with costs, the plaintiff pays the general costs of the action, and the defendant the amount only by which the costs have been increased by the counter- claim. Saner v. Biltou, 11 Chy. D. 416. See McGowan v. Middleton, 11 Q.B.D. 464. Where the issues in the claim and counterclaim are the same, the plaintiff is not entitled to adduce fresh evidence to contradict the defendant's evidence. Green v. Sevin, 13 Ch. D. 589. See Montciih v. Walsh, 10 P.K. 163. Gorini^ v. Cameron, 10 P.R. 496. Hare v. Cawthrope, 11 P.R. 353. Followed in Malcolm v. Race, 16 P.R. 330. Chamberlain v. Chamberlain, 11 P.R. 501. Central Bank v. Osborne, 12 P.R. 160. General Electric v. Victoria Electric, 16 P.R. 529. 1 1 TENDER. 87 TENDER. The following are the main requisites for a valid tender : The actual production of the money due is neces- sary, unless the creditor dispense with the produc- tion of it at the time, or does anything which is equivalent to a dispensation. Thomas v. Evans, 13 East loi. There must be evidence of an unqualified offer. An offer of payment clogged with a condition that it must be accepted as the balance due does not amount to a valid tender. Evans v. Judkins, 4 Camp. 156. Whether a tender is conditional or not is a ques- tion for the jury, where the words or facts accom- panying it are disputed. Eckstein v. Reynolds, 7 A. & E. 80. But if the goodness of it turns on the meaning or legal effect of a letter or writing accompanying it, then the question is for the Judge. Bowen v. Owen, 11 Q.l>. 130. The same rule would appl}^ to unwritten expres- sions used by the party tendering, where the tenor of them is not disputed. The tender need not be made by the debtor him- self ; it is sufficient if made by his agent. A tender to a person authorized by the creditor to receive money for him is sufficient. Tender of a part of one entire debt is inoperative. Dixon V. Clark, 5 C.B. 365. If a man tenders more than he ought to pa}-, it is good. Wade's Case, 5 Rep. 114. But such a tender is only good where it Ij made in moneys numbered so that the creditor may take ■ •I I ■ -^-' -^ ii 88 TENDER. what is due to him ; therefore, e.g., a tender of a Dominion note forjftfty dollars, requiring change, is not good. **** By R.S.C., c. ^1, An Act respecting Dominion Notes, such Dominion notes are authorized. Section 4 provides : '* Such notes shall be a legal tender in every part of Canada except at the offices at which they are respectively made payable." By R.S.C., c. 30, An Act respecting the Currency, gold coins may be struck for Canada of the standard of fineness prescribed by law for the gold coins of the United Kingdom, and bearing the same proportion iu weight to that of the British sovereign as $5 bear to $4.86^. These coins shall pass current and be a legal tender in Canada for $5. Silver, copper or bronze coins are legal tender as follows : Silver coins to the amount of $10 ; copper or bronze coins to the amount of twentv-five cents in any one payment. The holder of the notes of any person to the amount of more than $10 shall not be bound to receive more than that amount in such silver coins in payment of such notes if presented for payment at one time, although any of such notes is for a less sum. The defence of tender is only applicable to cases where the party pleading has been guilty of no breach of his contract. The defence will be defeated by showing a demand and refusal prior or subsequent to the tender. Bennett v. Parker, L.R. 2 C.L. 89, Ex. The demand must be proved of the precise sum tendered. Rivers v. Griffiths, 5 B. & A. 630. See Demorest v. Midland, 10 P.R. 640. UNDUE INFLUENCE. Lockridge v. Lacey, 30 U.C.Q.B. 494. Long V. Long, 17 Chy. 251. UNDUE INFLUENCE. Onus of proof — where — McEwan v. Milne, 5 O.R. 100. See Disher v. Clarris, 25 O.R. 493. Taking away wife from husband, Metcalfe v. Roberts, 23 O.R. 130. See also McCaffrey v. McCaffrey, 18 A.R. at p. 610, referring to A Heard v. Skinner, 36 Ch. D. 145. 89 . 1 '1 J ' I, -I # I 1 ipII F»ARX III. ACTIONS ON SPECIALTIES, The actions under this heading are as follows : On covenant. For double value of land demised. For double rent. On bond. Fot penalty. ACTION ON COVENANT. A covenant is an agreement expressed in an instru- ment in writing executed as a deed. Such agree- ments, after proof of the deed in which they are contained, are subject to the rules of construction applicable to ordinary documents. There need be no formal words of covenant. Any words in a deed showing an agreement to do a thing make a covenant. An action of covenant cannot be maintair._*d by grantor on a deed purporting to contain a covenant by grantee, but not executed by grantee to pay certain mortgages although she accepted the benefit of the deed. Cret^. Fonc. v. Lawrie, 27 O.R. 498. Where the effect of a contract is to give a stranger to it a beneficial right thereunder, he may enforce such right by action. Moot V. Gihson, 21 O.R. 249. See page 251, where Tweddle v. Atkinson, I B. & S. 393, is distinguished. See Faulkner \. Faulkner, 23 O.R. 252. One joint covenantee can by virtue of R.S.O., c. 122, assign to his co-covenantees his interest in the covenant, and they can then sue upon it without joining him as plaintiff. Scarlett \. Nattrass, 23 A. R. 297. i COVENANT. 91 Oepcndent and iiidependent covenants. IFtVsofi V. Flemittir, 24 O.R. 388. A voluntary deed will not be reformed ap;ainst the grantor. Bellamy v, Badgeroxu, 24 O. R. 278. Where there is an amlii^uity on the face of a deed incapable of being explained by extrinsic evidence the maxim verba fortius accipiuntur contra proferentem cannot be applied in favor of either party. Barthelw Scotten, 24 S.C.R. 367. The liability of joint covenantors for breach of one confined to past liability. Elliott V. Stanley, 7 O.R. 350. As land is for the most part conveyed and leased by instruments under seal, certain covenants usually inserted in these instruments are frequently the sub- ject of an action. The covenants relating to land are principall}- : Not to assign or sublet without leave. As to trade on premises. For good husbandry. To insure. To repair. To pay rates and taxes. For title. To yield up possession of premises at end of term. Besides the actions on these special covenants it is well to notice : 1. Some of the most material issues arising in actions on deeds and bonds generally. 2. Some of the most material issues arising in actions on leases or other conveyances of real prop- erty. The actions on particular covenants will be con- sidered after the above cases, i and 2. ^ m \ \ '•: » . ||% i;: if ill IBs iilli| i ■i 91 ^ ■ ■ B ■ ■{ i ■ ■ 92 COVENANT. I. SOME OF THE MOST MATERIAL ISSUES ARISING IN ACTIONS ON DEEDS AND BONDS GENERALLY. Under the Consolidated Rules of Court, the de- fendant may deny the making of the contract in fact. This defence now in part takes the place of the old plea of non est factum. The plaintiff under this defence need only pro- duce and prove the execution of the deed. Where the action is not for any liquidated sum it is also necessary to prove the amount of damage. The following are the principal rules as to the mode of proving a deed between private parties : It was formerly the rule that whenever a deed or other instrument was subscribed by attesting wit- nesses, one of them at least must have been called to prove the execution. Now, by R.S.O., 1887, c. 61, s. 50 : "It shall not be necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite, and such instrument may be proved by admission or otherwise, as if there had been no attesting witness thereto." This section does not apply to cases where attes- tation is essential, as wills, instruments under powers, bills of sale, etc. Even in these cases the necessity for calling the attesting witness only arises where it is necessary to prove the instrument ; for the parties against whom any of these instruments requiring attestation are sought to be used may waive the necessity of calling the attesting witness by admission. Where proof has to be given of attes- tation, the necessity for calling the attesting witness cannot be avoided by putting the party to the deed, and against whom it is sought to be used, into the witness box, and extracting an admission of the execution from him. Wkynan v. Garth, 8 Ex. 803. COVENANT. 93 Where the attesting witness is dead, or insane, or infamous, or absent in a foreign country, or not amenable to the process of the Superior Courts, or where he cannot be found after diHgent inquiry, evidence of the witness' handwriting has always been admissible. The sufficiency of the inquiry is for the determina- tion of the Judge, who will found his opinion upon the nature and circumstances of each case. When the Court is satisfied that due diligence has been used to find the witness, then it is sufficient to prove his handwriting, without proving the hand- writing of the party, unless with the view to estab- lish the identity. Nelson v. Whittall, i B. & A. 19. It is not sufficient ground for admitting evidence of the witness' handwriting that he is unable to attend from illness and lies without hope of recovery. The party interested in his testimony must in such a case get a Judge's order to examine him out of Court. Harrison v. Blades, 3 Camp. 457. Where the name of a fictitious person is inserted as witness, or where the subscribing witness denies any knowledge of the execution or gives evidence that the document was not duly executed, or where the attesting witness subscribes his name without the knowledge or consent of the parties — in these cases it becomes necessary to prove the instrument by calling some one acquainted with the hand- writing of the person executing it, or who was present at the time of execution, or by admission of the party. Where there are two attesting witnesses, and one of them is incompetent, or his evidence cannot be 1 1 : I 1 ! 1 f I iiil 94 COVENANT. obtained, the other witness must be called, and evidence of the handwriting of the absent witness will not be sufficient. Ciinliffc V. Scfton, 2 East 183. In proving the execution of a deed, the attesting witness frequently states that he does not recollect the fact of the deed being executed in his presence, but that seeing his own signature to it he has no doubt that he saw it executed. Sufficient. Mau^JuDU V. Hubbard, 8 B. & C. 16. Where notice was given to produce a deed in the defendant's possession, and the defendant at the trial refused to do so, plaintiff was allowed to prove it by a copy without calling any attesting witness, and it was held that the defendant could not put the plaintiff to a strict proof by afterwards pro- ducing the attested original. Jackson v. Allen, 3 Stark. 74. Some evidence of the identity of the party to the instrument must be given, though any slight evidence will be sufficient. To prove a corporation deed, the seal must be proved by some one who knows it, but it is not necessary to call a witness who saw it affixed. A lease may be proved prima facie by producing the counterpart executed by the defendant, without notice to produce the original lease. Where there is a discrepancy between the two in- struments the lease prevails. Where an indenture is in two parts, each party executing each part, if there is a material variation between the two parts the indenture is void for want of mutuality. Wynne's Case, L.R. 8 Ch. 1002. COVENANT. 95 The above are the general rules as to proving a deed. To return to actions on deeds and bonds generally, the defence of denial by the defendant of the making of the deed has been already stated. Under special defences the defendant may show that the deed was executed as an escrow, and was to take effect as a deed only upon some event which has not happened ; or that the deed, after being sealed, was tendered to the covenantee, and he expressly rejected it ; or, in the case of a corporation deed, irregularity or want of due authority in the execution of the deed. Other special defences are : Alteration of deed. (See page 70.) Fraud. (See page 71.) Statute of Limitations. (See page 76.) The Statutes of Limitation applying to deeds or specialties arcR.S.O., 1887, c. 60 and c. in. The effect of these statutes is that no more than six years' arrears of rent or interest in respect of any sum charged on or payable out of any land or rent shall be recovered by way of distress, action, or suit other than and except an action of covenant or debt on a specialty, in which case the limit is twenty years. In an action on the covenant in a mortgage deed to pay the mortgage debt the limit is ten years. R.S.O., 1887, c. Ill, s. 23. It must be shown which of the three sorts of acknowledgments, viz., writing, payment, or satis- faction in part, is relied on. Forsyth v. Bristowe, 8 Ex. 347. ■ $ v\ 96 COVENANT. 2. SOME OF THE MOST MATERIAL ISSUES ARISING IN ACTIONS ON LEASES OR OTHER CONVEYANCES OF REAL PROPERTY. This will be considered — {a) Where plaintiff sues as assignee of reversion, with the defences of : Assignment over of reversion by plaintiff. Assignment over of term by defendant. Surrender. Eviction. (6) Where defendant is sued as assignee of the lease. (c) Action for rent under indenture of demise, with the defences of : Payment. Plea of readiness to pay on the land. Statute of Limitations. (a) Where Plaintiff Sues as Assignee of Reversion. The assignee of a reversion cannot recover rent accrued due before the assignment. See Wittrock V. Hallinan, 13 U.C.R. 135. The assignee of the reversion cannot sue for breaches of covenant which accrued before the assignment to him. Martyn v. Williams, 1 H. & N. 817. See Baldwin v. Wanzer, 22 O.R. 612. Reversion severed. Although R.S.O., 1887, c. 109, s. 10, enacts that a right of entry for condition broken shall pass by will, yet this does not extend to an action upon a cove- nant broken in a testator's lifetime. Where plaintiff at time of lease has no title, but afterwards acquires one, the lease and reversion take COVENANT. 97 effect in interest, and an action will lie by the assig- nee of the reversion on the covenants in the lease. Sturgeon v. Win^held, 15 M. & \V. 224. The plaintiff must prove title by showing mesne conveyances from original lessor. Carvick v. Blagrave, 1 B. cSc B. 531. OFFENCE. ASSIGNMENT OVER OF REVERSION HY PLAINTIFF. The lessor ca . lot bring an action of covenant on the lease, after he has parted with his reversion, for any breach of covenant running with the land which has accrued subsequently to the grant of the rever- sion ; but the action can be brought only by the assignee of the reversion. The defendant may therefore set up 32 H. VIII., c. 34. This statute only applies to leases by deed. ASSIGNMENT OVER OP TERM I5V DEFENDANT. In an action against the assignee of a term on a covenant in the lease, he may plead that he assigned over the term before breach, for the assignee is only liable for those breaches which have occurred while he is assignee ; but for those breaches he may be sued even after he has parted with the term. The defendant must prove that the whole term has been legally transferred by him to another, i.e., when necessary by deed. See R.S.O., 1887, c. 100, s. 8. SURRENDER. A surrender of a lease must be by deed, not being of an interest which might by law have been created without writing. nl i li'liiii m ■r ^ii '™' If t :f h, r^ 98 COVENANT. R.S.O., 1887, c. 100, s. 8. There may also be a surrender by act or operation of law. Anything which amounts to an agreement on the part of the tenant to abandon and on the part of the landlord to resume possession of the premises amounts to a surrender by operation of law. Phene v. Popplewell, 12 C. B., N. S. 340. See Ontario v. O'Dea, 22 A. R. 349. Seldon v. Buchanan, 24 O.K. 349. EVICTION. An action of covenant for non-payment of rent can be defeated by proof of an eviction of the defendant from the premises in question, either by the lessor or by one whose title is better thail his. ^)U?, Not so if defendant has not given up possession of the whole. Ncivton V. Allin, i O.B. 518. See Shuttlcworth v. Shaw, 6 U.C.R. 539. May be apportioned. Kinncar v. Aspchii, 19 A.R. 468. DISCI, AIMKR. Peers V. Byron, 28 C.P. 250 Lynelt v. Parkinson, 1 C.P. 144. Kelly V. Wolff, 12 P.R. 234. (1)) WiiERi': DeI'KNdant is Sued as Assignee op ihe Lease. It will be necessary to prove either a transfer of the interest by deed, or facts from which an assignment may by law be inferred. It will be suf(icient prima facie evidence to show that the defendant has paid rent as assignee, or is in possession of the premises. DEFENCK. The defendant may prove that he is not an assignee of the whole term, but only an undertenant. COVENANT. 99 The defendant is not cliargeable as c.ssignee of the land for the entire rent if tha assignment be of part only. Curtis V. Spitly, i N.C. 756. As to what covenants run with land so as to bind the assignees, see Spencer's Case, 1 Sni. L. Cas. and Notes. Bcrric v. Wcods, 12 O.R. 693. Ambrose v. Frascr, 14 O.R. 551. Enimett v. Quinn, 7 A.R. 306. (c) AcnoN FOR Rknt Under Indenture oi' Demise. An action lies by lessor, or grantee of reversion against lessee on his express covenant to pay T-ent, nan obstante he have assigned the lease, and the lessor or his grantee have accepted the assignee as his tenant. But the lessor cannot, after he has parted with his reversion, bring an action of cove- nant for rent accrued due after grant of reversion under yz H. VIII., c. 34. The lessor may bring an action of debt against assignee of lessee by reason of privity of estate ; but an action of covenant will not lie against original lessee after acceptance of assignee by lessee as his tenant. Montgomery v. S pence, 23 U.C.R. 39. The demise mav be proved by production and j>roof of a lease executed by the plaintiff and accepted by the defendant, or by proof of the execution of it bv the defendant. DEFENCE. Payment. (vSee page 80.) Readiness to pay on land good in case of debt for rent ; not good in action on covenant. Statute of Limitations. (See page 76.) 1 If B H I i ; if' «i.* :, III 100 COVENANT. An instance where it was doubtful whether the assi{j[nment should be treated as of the reversion or of future rent accruing out of the land, and so void as not under seal ; or as an assignment of a chose in action, viz., of the moneys payable under the covenants )f the lease, and so valid. Galhrailh v, hi'mg, 8 O.K. 751. Any act of the tenant without the knowledge or sanction of the landlord can only affect his interest as tenant, and cannot prejudice the reversioner. Dixon v. Cro^s, 4 O. R. 465. A plea to an action of covenant for rent against the assignee of a lease, that all the estate of the lessee did not come to and vest in the defendant, is a good plea. .hint's V. Corbet^ I U.C. R. 303. A, as lessor, leases to B, and covenants to repair, and then assigns to C the rent for the term which B is to have. \\ sues C on A's cove- nant. Held, C not liable, as he had no reversion, and the covenant would not run with the rent. ^ McDongaU v. Ridoiit, 9 U.C. R. 239. Covenant by lessee to insure in the name of the lessor, the insur- ance money to be expencied in the erection of new buildings. Held, a covenant running with the land, and that an action would lie on it against the assignee of the lessee. Douglass V. Mitr/^hy, 1 6 U.C. R. 1 1 3. In covenant for rent, a plea relying on the plaintiffs acceptance of the assignees as his tenants, and on his receipt of prior rent (not the rent sued for) from them, as relieving defendant, the lessee, from any further liability, is a bad plea, as l)eing no defence to an action on an express covenant. Stinson v. Magill, 8 U.C. R. 271. Acceleration clause. Bakers. Atkinson, 14 A.R. 409. I.irJon V. Imperial Hotel Co,, 16 A.R. 337. Mitehell \. MeCanley, 20 A.R. 272. ACTIONS ON COVENANTS RELATING TO LAND. We now consider actions for the breach of the various covenants as enumerated on page go. In actions to re-enter for breach of a covenant in a lease the Court will, since the Judicature /Vet, dispose of cjuestions in their ecpiitablc rather than their legal aspect in all cases where, under the former t COVKNANT. lOI practice, ihc iJourt of Cliancery would have relieved again.it the for- feiture. A'//aVc;j' V. A-4'/f, 8 O.K. 85. ACTION FOR BREACH OF COVENANT NOT TO ASSKiN. Now runs with land, R.S.O., c. 143, s. 4. To prove the breach of a covenant not to assign or under-let it has been held to ha prima facie suffi- cient to show that a stranger was in the possession of the premises apparently as a tenant, and that on enquiry such stranger said he rented the house. Doe d., Hindly v. Rickerby, 5 Esp. 4. In another case it was held not sufficient, for non constat that the party in possession was not a tortious intruder. Doc v. Payne, 1 Stark. 86. Williams, 6 1>. Ik C. 41, seems to show possession would be evidence of an See Crawford v. Bni^'g, 12 O.K. 8. The measure of damages in an action for a breach of covenant not to assign, etc., is such a sum of nK)ney as will put the plaintiff in the same position as if the covenant had not been broken, and the plaintiff had retained the liability of the defendant instead of an inferior liability. W'illiaiits V. Earic, L.R. 3 (^).B. 739. Where a lease containing a covenant against assignment without the consent of the lessors is so assigned, the assignment containing a covenant by the assignee to pay the rent and indemnify the assignor, and the assignee goes into possession of the mortgaged ])remises, he is liable, although the consent of the lessors may not have been procured, to pay to the assignor rent accruing due after the assignment, whi"h the latter hns been obliged to pay. Hrmvn v. LeniioA, 22 A. R 442. Upon a lease made pursuant to the Short Forms Act, contaming a condition for re-entry on assigning or sul)letting without leave, when the lessor gives a license to assign part of the demised premises he may re-enter upon the remainder for breach of covenant not to assign or sublet, notwithstanding that the })roviso for re-entry recpiires the right of re-entry on the whole or a part in the name of the whole. Sections 12 and 13 of the Landlord and Tenant Act, R.S.O., c. 143, are to be read together, the former referring generally to all cases. Morris v. that mere assignment "mvnmnnnmmna 102 COVENANT. and makinij; licenses to alien applicable for that particular instance only, the latter referring to specific cases of licensing alienation of a j)art, and reserving the right of re-entry as to the remainder. Hence, where a lessor gave a license to alien part of the demised premises, it was held that the license applied to the licensed arrangements only, and that upon subsecpient alienation without leave he might re-enter. Baldwin v. IVa/izrr, 22 O.K. 612. ACTIONS FOR BREACH Of' COVENANT AS TO TRADE ON PREMISES, AND FOR BRE.VCH OF GOOD HUSBANDRY, ETC. The proof of any act which, according to the natural and ordinary meaning of their words, is for- bidden by these covenants will entitle the plaintiff to a verdict. Il'iii ACTION FOR BREACH OF COVENANT TO INSURE. Where the affirmative is peculiarly within the knowledge of the party charged, the presumption of the law in favor of innocence is not allowed to operate ; but the general rule applies that he who asserts the affirmative has to prove it, and not he who avers the negative. Thus, in an action on a covenant for not insuring premises against fire, it lies on the defendant to prove he has insured. Tolcman v. Portbuvy, L.R. 5 QB. 288. Covenant by lessee to insure in the name of he lessor, the insurance money to be expended in the erection of new buildings. Held, a cov- enant running with the land, and that an action would lie on it against the assignee of the lessee. Dot4glass V. Mufphy, i6U.C.R. 113. A covenant by a lessor (not mentioning assigns) to pay for buildings to be erected on the lands demised does not run with the land, and the lessee or his assigns have no claim as against the land or the devi- sees of the lessor in respect of the value oftuildings so erected. McClary v. Jackson^ 1 3 O.K. 310. A lessor demised property for a term of years, with a stipulation that the lessee would not carry on any business that would affect the insur- ance. The lessee made an under-lease, omitting any such stipulation. COVENANT. 103 and the under-lessee commenced the business of rectifying iiigh wines. Injunction granted to restrain same. Arnold \. //7i?V<:, 5 Chy. 371. ACTION FOF< BREACH OF COVENANT TO REPAIR. The proper measure of damages is the diminution of the vahie of the reversion at the time of action. See, further, Minshull v. Oakcs, 2 H. & N. 793. Smith V. Peat, 9 Ex. 161. ACTION FOR BREACH OF COVENANT TO PAV AND TAXES. RATES An absolute covenant to pay rates is broken on non- payment, although no demand has been made on the tenant for payment. Davis V. Burrell, 10 CB. 821. Where lease contains no provision as to taxes, the landlord must pay them. Dove V. Dove, 18 C.P. 424. Held, that under the wording of the covenant to pay " all taxes, rates, duties, and assessments what- soever . . . now charged, or hereafter to be charged, upon the said demised premises," the defendant was liable for local. improvement taxes, and for the addi- tions made under the Assessment Act, year by year, to the amoimt of the taxes in arrear, or additions made by the municipality. Boulton v. Blake, 12 O.R. 532. ACTION FOR BREACH OF COVENANT FOR TITLE. The covenants for title on which actions are brought are principally : A covenant that the grantor seized in fee, or has power to convey ; for quiet enjoyment and for freedom from incumbrances. Where plaintiff (lessee) was evicted by title para- i i • i I! i I nl 1"''- 104 COVENANT. mount to lessor: held, he could not recover. A covenant for quiet enjoyment under the Short Forms Act is limited to acts of lessor and those claiming under him. Davis V. Pitchers, 24 C.P. 516. See Snary v. Baldwin, 11 C.P. 353. Bellamy v. Barnes, 44 U.C.R. 315. Covenant against incumbrances, measure of dam- ages. Connel v. Boulton, 25 U.C.R. 444. The money ordered to be paid into Court. Boyd V. Robinson, 20 O.K. 404. Approved, Mewburn v. McKelcan, 19 A.R. 739. McGillivray v. Mimico Real Est. Co., Div. Court, 17th Dec, 1896. By R.S.O., 1887, c. 100, s. 17, certain covenants are implied. ACTION FOR BREACH OF COVENANT TO YIELD UP POSSESSION OF PREMISES AT THE END OF THE TERM. The landlord is entitled to recover all the loss he has sustained by not being put in possession of the entire premises at the end of the term ; he is entitled to a sum equivalent to the rent he has lost, and to the costs of an ejectment where necessary. Henderson v. Squire, L.R. 4 Q.B. 170. Where a lessee took a lease of premises for two years and covenanted to leave the premises without •^ pt the end of that time. > s ]., that on ejectment, brought by the lessor at .^^"' ^ • of the term, the lessee could not set up a i^iLi ;3ase to him for a longer period. Deed., Wimburn v. Kent, 5 O.S. (U.C.) 437. DOUBLE VALUK, DUIBLE KENT. 10- ACTION FOR DOUBLE VALUE. Under 4 Geo. IL, c. 28, against tenant wilfully holding over after — 1. Determination of term. 2. Demand made. 3. Notice in writing. Notice to quit includes a demand. Plaintiff must |)rove the demise, the determina- tion of the term, the demand, and the value. In estimating value only the land and its real easements and appurtenances can be included. DEFENCE. The defendant may show that the plaintiff has waived the notice to quit on demand of possession ; and where the plaintiff has accepted rent due from the defendant after the expiration of notice to quit, it is a question for the jury whether such rent was received in part satisfaction of the double value or as a waiver of it. Ryall v. Rich, 10 East 52. There is also an action for double value under illegal distress, which see. fivl .\CTION FOR DOUBLE RENT. By II Geo. II., c. ig, s. 18, if any tenant shall give notice to quit, and does not quit, he shall pay double rent, The statute only applies to those cases in which the tenant has the power of determining his tenancy by a notice, and actually gives a valid notice sufficient to determine it. Johnstone v. Hiiddlestone, 4 B. & C. 922. M io6 BOND. ACTION ON BOND. See, also, Action on Guarantee, pa^e 33. See 8 and 9 W. III., c. 11, s. 8. The plaintiff must set out the breaches he relies upon, in two ways : 1. By assignment, which is traversable. 2. By suggestion, which is not traversable. In latter case defendant cannot show excuse of performance. But plaintiff must show that bond produced is same on which judgment obtained. The jury are to find nominal damages and costs as well as damages on the breaches ; but plaintiff cannot recover more than the penalty and costs. Greer v. Johnston, 40 U.C.R. 116. DEFENCE. PAYMENT. Payment before the day fixed for it was always evidence of a plea of payment at the day ; but before Statute 4 and 5 Anne, c. 3, s. 12, payment after the day fixed, or at a different place from that fixed, was not pleadable in bar. By that Act payment of principal and interest due on a mere money bond made before action is a bar, though not made exactly according to the condition. The defendant must prove the defence, though such defence is in fact a denial of the breach of the condition. Penny v. Foy, 8 B. & C. 8. BREACH. Brantford, &c., R. Co. v. Huffman, 18 A.R. 415. EXECUTION IN BLANK. Reg. V. Chesley, 18 S.C.R. 306. PENALTY. 107 ACTION FOR PENALTY. In an action of debt on a penal statute the p^eneral evidence for the plaintiff is proof of the commission of the act upon which the penalty has accrued, and, if a time be limited by the statute for bringing the action, proof that the action was brought within the time. The Crown alone can sue for the penalty where the statute does not say who shall recover it, unless an interest therein is given to some person by the statute expressly or by sufficient implication as if it is created for a party grieved. Clarke v. Bradlcmgh, 8 App. Cas. 354 D.P. The writ is in all cases the commencement of the action, and the statement of claim will show the day on which it is issued. When the writ has been renewed proof of the renewal is requisite. An action for penalty under 13 Eliz., c. 5, may be joined with an action under that Act to set aside a fraudulent conveyance. Miller v. McTaggart, 20 O.R. 617. By 21 Jac. I., c. 4, s. 4, not guilty by statute may be pleaded. Held, that 18 Eliz., c. 5, is in force in Ontario, and therefore the plaintiff, an infant, suing by his next friend, could not maintain an action for a penalty under the Election Act. Garrett v. Roberts, 10 A.R. G50. No damages are recoverable in a penal action except the penalty. Frederick v. Lookup, 4 Burr. 2018. If ■i^.*.TV7^^75crrtr-r:^5:r^-rKsx; .. F>AF»X IV. ACTIONS ON WRONGS INDEPENDENT OF CONTRACT. i,' ' The actions under this heading are as folic vs : Nuisance. Nefjligence. Disturbance of support of land. Obstruction of lij^ht or air. Disturbance of way. Disturbance of watercourse. Infringement of copyright. Infringement of trade mark. Infringement of patent. Deceit and misrepresentation. Defamation. Malicious prosecution. Malicious arrest. Wrongful distress. Seduction. Assault and battery. P'alse imprisonment. Trespass to personal property. Trespass to land. Mesne profits. Conversion of goods. Detention of goods. Recovery of land. Replevin. ACTION FOR NUISANCE. Where the nuisance is a public one, so as to be an indictable offence, an indictment or information is the proper remedy, and an action will not lie at the NUISANCE. 109 suit of a private person, unless he has sustained special damage by such nuisance beyond that sus- tained by other persons. Winterbottom v. Lord Derby, L.R. 2 Ex. 316. The plaintiff must prove his possessory title, the nuisance, and the damage. If the plaintiff is in possession, whether as owner or otherwise, it is sufficient to prove that he was pos- sessed of the premises injured by the nuisance. If the nuisance be of a permanent nature, or injurious to the reversion, an action may be brou<:^ht by the reversioner, as well as by the tenant in possession. Bedingfield v. Onslow, 3 Lev. 209. The action lies by the reversioner even against his own tenant, and even although the injury is caused by an act done in breach of an express covenant by the defendant. To erect anything offensive near the house of another, so as to make it useless, is actionable. The owner of houses occupied by tenants can maintain an action in his own name for damages for and to restrain a nuisance on land of an adjoining owner if the nuisance is practically continuous and permanent. Park y. White, 2^ O.K. (jii. In case of a public nuisance, where special damage is alleged, the private injury or damage as a ground of action appears. Whether an act done is a nuisance or not depends not only on the act itself, but on the surrounding circumstances, for what would be a nuisance in one place would not be a nuisance in another. Sturges V. Bridgman, 11 Chy. Div. 852. There is a difference between a nuisance which produces material injury to the property and one l! no NUISANCE. which produces merely sensible personal discomfort. Tippinfj^ V. St. Helen s Sfnellitif^ Co., ii H.L.C. 642. If, after a highway has been established, anything be newly made so near to it as to be dangerous to those using the highway, this will be unlawful and a nuisance ; but a road may be dedicated to the public subject to the inconvenience or risk arising from its peculiar condition. Fisher v. Prowse, 31 L.J., Q.13. 212. Nuisance on a public road. London v. London St. Ry., • referred to in McNab V. Dysart, 22 A.R. 508. See Ward v. Caledon, 19 A.R. 69, followed in Bryce v. Loutit, 21 A.R. 100. A municipal council has a right to have it decided, as against a private person, whether or not certain land is a public highway, and whether such person has a right to obstruct the road. Toronto v. Lorsch, 24 O.R. 227. Where the obstruction is lawful^ it may give rise to an action upon proof that it was concealed and the plaintiff invited to pass near it. Corby v. Hill, 4 C.B., N.^. 5;;6. The action may be brought either against the person who originally occasioned the nuisance or against his alienee who permits it to be continued ; but a request to the alienee to remove or abate the nuisance must be proved. Penruddock's Case, 5 Rep. loi. If a contractor employed to do a lawful act causes a nuisance in the course of his work, the contractor alone, and not the employer, is responsible. In such cases the action lies only against the person NUISANCE. Ill who by himself or his servant coininitted the injury ; and a sub-contractor or other person exercising an independent eniph^ymenL is not a servant within tlie meaning of the rule so as to render his employer liable. • Allen V. Ilayiaard, 7 Q.B. 960, 975. Where the employer retains his control over the contractor, and personally interferes and makes himself a party to the act that has occasioned the damage, he becomes liable. Burgess v. Gray, i C.B. 578. Where the nuisance directly results from the thing contracted to be done the employer is liable. Ellis V. Sheffield Gas Co., 2 E. ik H. 767. Although the owner of land, after letting it, is not liable for a nuisance erected by the tenant, yet if he lets or relets the land with a nuisance upon it, or retains control of the repairs, he is liable. Trustees or commissioners acting for public pur- poses without salary or reward are not exempt from the responsibility which is incurred by private indi- viduals. Coe v. Wise, L.R. i Q.B. 711. As to municipalities, see liabilities imposed by the Municipal Act. Municipal Act, 1892, sees. 524 to 568, inclusive. The injury must be the natural or ordinary con- sequence of the defendant's wrongful act. Sharp V. Powell, L.R. 7 C.P. 253. Where the nuisance is a continuing one, so that successive actions may be brought, the measure of damages is the amount of injury sustained up to the time of assessment of damages, and the jury niay, upon a further action, give substantial damages. Battishill v. Reid, 18 C.H. 696. H 112 NEGLIGENXE. The defendant's intention in doing the act is to be taken into consideration in assessing the damages. Emblen v. Myers, 6 H. & N. 54. DEFP^NCE. It is a good defence to show that what was prima facie a nuisance arose unavoidably from the perform- ance by the defendants of acts expressly sanctioned by the Legislature ; but the defendants will be liable if their acts cause needless injury, or if they do not take reasonable steps within their power for averting such injury. Where the gist of the action is the consequential damage, the time of limitation begins to run from the accruing of the consequential damage. Hathaway v. Doif:^, 6 A.R. 264. Gardiner v. Chapman, 6 O.R. 272. As to damages, see Drew v. Baby, i U.C.R. 438. As to contaminating air, see Cartwright v. Gray, 12 Ch. 399. As to action by tenant, see Aritold v. WJiite, 5 Ch. 37^- ACTION FOR NEGLIGENCE. The omission to do something which a reasonable man, guided by those considerations which ordinar- ily regulate the conduct of human affairs, would do, or the doing something which a prudent and reasonable man would not do ; and an action may be brought if thereby mischief is caused to another per- son not intentionally. Blyth V. Birmingham, 11 Ex. 781. ■Mi neglig?:nce. 113 Where the accident is such as in the ordinary course ot things does not happen, if those who have the management use proper care, it affords reason- able evidence in the absence of explanation by the defendants that the accident arose from want of care. Scott V. London & St. Catharine Docks Co., 3 H. & C. 596. Quoted in Saugstey v. T. Eaton Co., 21 A.R. 627. Permitting a young child to drive a mowing machine is evidence of negligence. Carroll \. Frtcniaii, 23 O. R. 283. The owner of property abutting on a highway is under a positive duty to keep it from being a cause of danger to the public by reason of any defect either in structure, repair, or use and management, which reasonable care and skill can guard against. Roberts v. Mitchell, 21 A.R. 433. An obligation may arise by implication froin " in- vitation " by A to use premises. Heaven v. Pender, 11 O.B.D. 503 C.A. A person entering upon premises for his own pur- poses and without the kn :>vviedge of the occupant does so at his peril. Rogers v. Toronto Pii^'Uc ScJiool Board, 23 A.R. 597. When a man brin^'^or uses a thing of a danger-^us nature on his own land, he must keep it in '^. : his own peril, and is liable for the consequences if it escapes and docs injury to his neighbor. Fletcher \. Rylavds, L.R. i Exch. 265 ; 3 H.L. 330. This principle discussed. Roe v. Lucknow, 21 A.R. i. Brown v. Eastern and Midland R.W. Co., 22 Q.B.D. 39I: referred to. 114 NEGLIGENCE. An action for injury to the person now survives to the executor of the plaintiff. (R.S.O., c. no, sees. 9, lo, 11.) Mason v. Peterborough, 20 A. R. 683. Examination dc bene ase of husband in an action under Lord Camp- bell's Act (RS.O, c. 135), abated by his death, may be read in a subsequent action by widow. Erdinan v. IVaikcrlon, 20 A.R, 444, affirmed 23 S.C.R. 352. MISCELLANEOUS INSTANCE.S IN WHICH LIABILITY FOR NEGLIGENCE MAS BEEN DISCUSSED. Road companies, liability of. IVebl) V. Ihnton Stoncy Creek Road Co., 26 O. R. 343. The difference between misfeasance and nonfeasance explained. Same case at page j^2. An express contract between a landlord and his tenant that the former is to repair does not render him liable for an injury to the tenant arising from want of repair, although the tenant has notified landlord of disrepair. Brotvn V. Toronto General Hospital, 23 O. R. 599. An agister is not an insurer ; he is bound to take reasonable care, and is liable for injury caused by want of such care. Pearce v. Slteppard, 24 O.R. 167. Hotel-keeper, negligence of. Hasson v. Wood, 22 O. R. 66. See also i)age 62, ante. Solicitors, negligence of. Quicre, is such a claim assignable .'' Defi- nition of chose in action discussed. I.aidlaww O'Connor, 2^ O.R. 698. See alsf) page 43, ante. Liability of Ontario Commissioners for public park for i' .t keeping fence in repair. Graham v. Co»i miss loners for Queen I'ictoria Niagara Falls Park, 16C.L.T. 336. Liability of municipalities to repair buildings in public parks. Schmidt V. Town of Berlin, 26 O. R. 54. Defective sidewalk. Durochie v. Cornwall, 23 O.R. 355, affirmed 24 S.C.R. 301. The qujstion whether a highway is out of repair is a question for the jury. (See also page no, ante.) Dnroehie v. Cornxvall followed. Ferguson v. Southwold, 27 O.R. 66. Ontario Statute, 1896, ch. 18, sec. 5, is as follows; All actions against municipal corporations for damages in respect of injuries sustained through non-repair of streets, roads, or sidewalks, shall hereafter be tried by a judge without a jury, and the trial shall take place in the county in which the road, street, or sidewalk is con- structed. NEGLIGENCE. 115 Notice under Ontario Act, 1894, c. 50, s. 13, want of, must be set up in pleading. Loni!^hottom v. Toronto, 16 C.L.T. 87. See as to a street crossing, Drennan v. Kingston, 23 A.R. 406. Damages carsed by negligent construction must be borne in case of drainage improvements by those assessed. Somhra v. Chatham, 18 A.R. 252. Contractor negligently leaving obstacle on high- way causing accident is liable. Howarth v. McGugan, 23 O.R. 396. DEFENC?:. Act complained of not proximate cause of acci- dent. The caitm sine t/ua non of an accident is not that on which depends the legal iniputability of the accident ; thf liability depends not on li:at, but on the caum effiiiens. Giivottr V, Bay of Qiiiiife Bridge Co., 20 A.R. at p. 2S4. See Ilaiiiilton v. Pandorf, 12 Ajjp. Cas. 518, ante p. 32. The proximate cause of an event must be understood to l)c that which in a nati ral and continuous sequence unbroken by any nc w cause produces that event, and without which the event would not have happened. B'orti'ood V. Toroiilo, 22 O.K. at p. 359. " Proximate cause " discussed. Prescott V. Connelly 22 S.C.K. at p. 160. The question is whether the accident may be considered to be the "necessary," "legal," or "natural" conse(iuence of the original wrongful act. Was it the natural or probalile result of that act ? Did it follow upon it in the ordinary course of events .-• In the absence of direct testimony there must be generally a great deal of mere opinion as to the cause of injury. Mere conjecture" will not answer unless it be based on proved facts on which the opinion is based. Wakelin v. London ^ S.\V\R. Co.y 12 App. Cr s. .\i. Badcock v. Freeman, 21 A.R. 633. Volenti non Jit injuria, Extent of this doctrine discussed. Hurdman v. Canada Atlantic R. Co., 25 O.R. 209, afhrmed 25 S.C.R. 205. I- ' m\ \ j[! ii6 NEGLIGENCE. The risk may arise from a defect in a machine which the servant has engaged to work, of such a nature thai his personal danger and consecjuent injury must be produced by his own act. If he clearly foresaw the likelihood of such a result and notwithstanding continued to work, he ought to be regarded as 7w/etts. Smith V. Baker, A.C. (1891) at p. 357, quoted in Polls, Hewitt^ 23 O.K. 619. The maxim volenti no n fit injuria does not apply where an accident is caused by the breach of a statutory duty. Rodgers V . Hami'fon Cotton Co., 23 O. R. 425. Damages too reinof'. Damages must not be too icrrot;. See Grinsiedv. Toron- '•'. Co., 24 S.C.R. 570. Contributory negligence. Contributory negligence rests upon the view that though the defendant has in fact been negligent, yet the plaintiff has by his own carelessness severed the casual connection between the defendant's negligence and the accident which has occurred, so that the latter's negligence can no longer be considered the true proximate cause of the injury. Tlionias v. Quartermaine, 18 Q. B.D. 6S5, quoted in Headford ■V. McClary Mfg. Co., 23O.R. at page 342. Latter case sustained 24 S.C.R. 291. In an action by judge and jury to recover damages for negligence where contributory negligence is set up as a defence, the onus of proof of the two issues is respectively upon the plaintiff and the defendant. Although the judge is entitled to hold negatively that there is no evidence to go to the jury on either issue, he cannot declare affirmatively that either issue is proved. The question of proof is for the jury. Afo> row v. C. P. A\ , 1 4 C. L. T. 246 . lVeir\. C.P.R., 16 A.R., specially distinguished. The doctrine of contributory negligence does not apply to an infant of tender age. Merritt v. Ifepcnstal, 25 S.C.R. 1 53. The issue respecting contributory negligence has to be proved by the defendant. Forwoodv. 7b;w//'£', 22 O.R. at page 359. Vis major. Novdheimer v. Alexander, ig S.C.R. 243. Respondeat superior. Where an injury is occasioned to anyone by the negligence of an- other, if the person injured seeks to charge with its consequences any NEGLIGENCE. 117 person other than him who actually caused the clan;age, it lies on the person injured to show that the circumstances were such as to make some other person responsible. In general, it is sufficient for this purpose to shotv that the person whose neglect caused the injury was at the time when it was occasioned acting not on his own account, but in the course of his employment as a servant in the business of a master, and that the damage resulted from the servant so employed not having conducted his master's business with due care. In such a case the maxim respondeat superior prevails and the master is respon- sible. Bartonshill Coal Co. v. AV/V, 3 Mac(|., Sc. App. Cas. 266. Crain v. /\yan, 25 CX K 524. The followinf]^ are some of the most common causes of action inchided under this liead : \m w \ NEGLIGENT DRIVING OF CARRIAGES. A master is not answerable for the wilful and mali- cious act of his servant. M' Manns v. Crickett, 1 East 106. Where the injury is the result of mere accident, no action lies. To maintain an action, the act must have been wilful or the result of negligence. Holmes v. Mather, L.R. 10 Ex. 261. In order to subject the master to damages it must appear that there has been something to blame on the part of his servant, and he is blamable if he has not exercised the best and soundest judgment on the subject. Jackson v. Tollett, 2 Stark. 39. The doctrine that the occupant of a carriage is not identified as to negligence with the driver applies only where the occupant is a mere passenger having no control over the management of the carriage. Flood v. London West, 23 A.R. 681. It is not negligence under ordinary circumstances for the driver of a quiet horse in the street to let go rm iii V ^t W^ ii8 NEGLIGENCE. the reins while he ahghts to fasten a head weight. Sullivan v. McWilliam, 20 A.R. 627. NEGLIGENT NAVIGATION OF SHIPS. The lii-biHties under this heading are governed by the Merchant Shipping Act — 17 and 18 Vict., c. 104 ; 18 and 19 Vict., c. 91 ; 25 and 26 Vict., c. 63 ; 30 and 31 Vict., c. 124; and 36 and 37 Vict., c. 85 (1854, 1855, 1862, 1873). The Dominion Govern- ment has also laid down a code of rules contained in R.S.C., c. 75. in r A respecting Navigation in Can- adian Waters. NEGLIGENT .:EEiit>rG OF ANIMALS. The owner of an animal which is ordinarily vicious, as a lion or a bear, is liable generally for its acts of ferocity, for he is bound to keep it secure at his peril ; but the owner of a domestic animal, as an ox or a dog, is only liable if he knows that the animal is accustomed to do mischief. > Under R.S.O., 1887, c. 214, s. 9, any person may kill any dog which he sees pursuing, worrying, or wounding any sheep or lamb. By section 15 the owner of any sheep or lamb killed or injured by any dog is entitled to recover the damage occasioned thereby from the owner or keeper of such dog by action or by summary pro- ceeding, and the knowledge of the owner or keeper of the dog as to its viciousness need not be proved. The gist of the action is not the negligent keep- ing, but the keeping with the knowledge of the mischievous propensity, i.e., the scienter. See Chase v. McDonald, 25 U.C.C.P. 129. Mason v. Morgan, 24 U.C.R. 328. NEGLIGENXE. 119 The rij^ht of action f^iven by R.S.O., c. 214, s. 15, to the owner ot slieep killed by dogs, must be prose- cuted with the usual procedure in the appropriate forum. If properly tried in the County Court it may be tried before a jury, and they then apportion the damages. Fox V. Williamson, 20 A.R. 610. NKGLIGENT USE OF LAND. See " Nuisance " and *' Disturbance of Support of Land," and page 113 ante. NEGLIGENT KEEPING OF FIRE OR INFLAMMABLE MATTER. A railway company is not responsible for acci- dental fires if they have taken every precaution that science can suggest to prevent injury ; they are only liable if guilty of some negligence in fact, and negli- gence cannot be implied from the mere employment of locomotives where the use of them has been expressly permitted by the legislature. Vatighan v. Taff Vale Ry. Co., 5 H. & N. 679. See McGibbo7i v. Northern, 14 A.R. 91. McLaren v. Canada Central, 8 A.R. 564. The defendant is not entitled to deduct from the damage sustained money received by the same plain- tiff under a fire policy. By R.S.O., 1887, c. 213, An Act to Preserve the Forests from Destruction by Fire, tire d stricts may be proclaimed. After such proclamation precautions must be observed, which are fully set out in the Act. Actions for contravention of the Act must be brought within three months after the contravention. NEGLIGENCE OF RAILWAY COMPANIES. See page 63, under " Action Against Carriers." In the case of an accident on the railway it is not fm" ftir ! ! i r. iJr tiii 'rt '■',' :-l I. I20 NliGLIGENCi:. enough for the plaintiff to show that there has been an accident upon their hne, and thence to argue that therefore the company are hable even prima facie. It is necessary for '^he plaintiff to establish by evi- dence circumstances from which it may fair!}' be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defendants might and ought to have resorted to ; the plaintiff should also show with reasonable certainty what particular precaution should have been taken. Daniel v. Metropolitan Ry. Co., L.R. 3 C.P. 216, 222. The defendant may show that the immediate and proximate cause of the injury was the unskilfulness or negligence of the plaintiff; but although there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequence of the defendant's negligence, he is entitled to recover. If by ordinary care he might have avoided them, he is the author of his own wrong. Bridge v. Grand Junction Railway, 3 M. & W. 244. In estimating the damages recoverable for a per- sonal injury caused by negligence, the jury must not attempt to give damages to the full amount of a perfect compensation for the pecuniary injury, but must take a reasonable view of the case, and give what they consider under all the circumstances a fair compensation. Rowley v. London & N.W. Ry. Co., L.R. 8 Ex. 221. Although the mere happening of an accident is not in general prima facie evidence of negligence, and the plaintiff is bound to give some evidence in sup- port of the defendant's negligence, yet the accident may be of such a nature that negligence must be \[^^ , NEGLIGENCE. 121 assumed from the unexplained fact of the accidetit happening. Byrne v. Boadle, \^ L.J. Ex. 13. By Dominion Railway Act, 1888, every railway company which runs trams upon the railway for the conveyance of passeuf^ers shall use the best applian- ces for communication between conductors and engine drivers, and for brakes, and for disconnecting cars, and for securing seats in the cars. By the same Act, the company must erect and maintain fences and cattle guards. While maintained, the company shall net be liable for damages done to cattle, etc., unless the same are caused wilfully or negligently by the company or by its employees. By the same Act, the inclination of a highway at railway crossings must not be greater than one foot of rise or fall for every twenty feet, and a fence at least four feet high must be made on each side of such approach. Other regulations are provided as to crossings of other railways, the rate of speed in cities, trains moving reversely, and cars standing on crossings, for the infraction of which provisions penalties are provided. By the same Act farm crossings are provided for. Trains, before passing any draw or swing bridge, must stop. Further, (i) All trains shall be started and run at re}:;ular hours hxed by public notice, and shall furnish sufficient accommodation for the transportation of all such passenj^ers and goods as are within a reason- able time previously thereto offered for transportation at the place of starting, and at the junctions of other railways, and at usual stopping places established for receiving and discharging way passengers and goods from the trains. (2) Such passengers and goods shall be taken, transported to and from, and discharged at such places on the due payment of the toll, freight or fare lawfully payable therefor. ; ( 122 NEGLIGENCE. (3) Every person aggrieved by any neglect or refusal in the premises shall have an action therefor against the company, from which action the company shall not he relieved hy any notice, con- dition, or declaration, if the damage arises from any negligence or omission of the company or of its servants. The clauses next above set out are found in the Railway Act of Ontario, R.S.O., 1887, c. 170, s. 41, (2), (3), and (4). Similar clauses to the other sections referred to are also found in the same Act. By R.S.C., c. no, provisions are made respecting the sale of railway passenger tickets, providing for the appointment of agents for the sale of tickets and for the issue of stop-over tickets on demand. Com- plaints under this Act must be prosecuted under the provisions of the code relating to Summary Convic- tions. The examination of any complainant may be used in evidence on the hearing of any appeal. By R.S.O., 1887, c. 212, The Railway Accidents Act, special provisions are made for the safety of railway employees and the public. By R.S.O., 1887, c. igg, provisions are made for the crossing of railways by streets, drains, and water mains. By chapter 30, Ontario Acts of 1892, s. 5, where within this Province personal injury is caused to a workman employed on or about any railway, by reason of certain defects specified in such section, the workman, or, in case the injury results in death, the legal personal representatives of the workman, and any.persons entitled in case of death, shall have the same right to compensation and remedies against the company as if the workman had not been a work- man of nor in the service of the company, nor en- gaged in its work. By sub-section i of section 6 the remedy is taken NEGLIGFCN'CH 123 away, and there is no right of compensation unless the defect arose from, or had not been discovered or remedied owing to the neghgence of the company, or of some person in the service of the company, and entrusted by them with the duty of seeing that the ways, works, machinery, plant, building or premises, were in proper condition. By section 6, sub-section 3, in any case where the workman knew of the defect or negligence which caused his injury, and failed within reasonable time to give notice to the company or some person superior to himself in the company's service, unless he was aware that the company or such superior already knew of the said defect or negligence, in such cuse the workman loses his remedy. Provided that the workman is not, by reason only of his continuing in the employment of the company with knowledge of the defect, negligence, act, or omission which caused his injury, to be deemed to have voluntarily incurred the risk of the injury. As to damages occasioned by fire from locomotives, besides the general principles already mentioned, special provisions are made by R.S.O., 1887, c. 213, s. 9, An Act to Preserve the Forests from Destruction by Fire, already referred to, enforcing special regulations as to locomotives. Stop-over ticket. Coombs V. Keg., 4 Ex. C.R. 321, affirmed S.C. 16 C. L.T. 98. Level crossings. Sibbaldv. G.T.R., 18 A. R. 184. Negligence of man in charge. Garland V. Toronto, 23 A.R. 238. Negligence of employee — specific instructions. IVeegarw G.T.R., 23 S.C R. 422. • Fences, crossings, and gates. Dunsford\. Michigan Central R. Co.^ 20 A.R. 577. Absence of cattle-guards — horses not in charge of any person. Nixon V. G. T.R., 23 O.R. 124. J 'I \ o\ a Villi !'!{." \ i 124 NEGLIGEN'CE In this case the Court construed sec. 2 of c. 28 of Dominion Acts of 1890, which amended sec. 194 of the Railway Act of 188S by substi- tuting a new sub-section. Neglect of railway train to j^ive warning at a crossing;. AiiiLison V. G.7\/\., lb C.L.T. 185. Horses runnini; at larjje killed by train — no municipal by-law allowing horses sc to run — defenfianis not liable. Duiuan v. C.I\R., 21 O.K. 355. The duty of a railw.iy company is to keep frog spaces continuously filled. Miscuer v. Miihij^an Central Raihvay Co., 24 O.K. 411. Ringing bell or sounding whistle, if impracticable, other precautions must be adopted. No rule " stop, l(jok, and listen" in force in Ontario. Jlollingerv. CJ\A'., 21 O.R, 705. Cattle "at large." The c|uestion whether caule are at large or not need not under all circumstances be subnnlted to the jury. It is for the judge to s.ay in that case, as in others, whether there is any evitlence for the jury. Thompson v. G.7\R.y 22 A.R. 455. A railway conipany is bound to jirovide for passengers safe means of ingress to and egress from its stations. Oldrii^ht V. G. 7\h\, 22 A.R. 286. A railway company is liable for damages to goods from negligence, even though the shippers of the goods agree in consideration of the reduced freight not to hold the company liable. Cobban v. C.P.K., 23 A.R. 115. STREET RAILWAY. Persons crossing street railway tracks are entitled to assume that the cars running over them will be driven moderately and prudently, and if an accident happens through a car going at an excessive rate of speed the street railway company is responsible. Gosnellw Toronto A^. Co., 24 S.C. R. 582. E7ving V. Toronto h\ Co. , 24 O. R. 694. Accumulation of snow. Toronto R. Co. v, Toronto, 24 S.C.R. 589. Driving over a man in broad daylight. Forxvoodv. Toronto^ 22 O.R. 351. Car buffers of diflferent heights. Bonds, l^oronto R. Co., 22 A.R. 78. Siiiifl NEGLIGENCE. 125 e meaiis NEGLIGKNCK OF FELLOW-SERVANTS A master, althouf^li liable for the negli«:;ence of a servant acting in the course of his employment, is not at Common Law generally responsible for an injury sustained by tliat servant owing to the negligence of another servant engaged with him in a common employment. To make a master liable to his servant or work- man, there must be personal negligence or interfer- ence of the master, or a special contract. Ormond v. Hulland, E.H. tS: E. 102. The master is, however, bound to exercise due care and caution in the choice of his servants, other- wise he may become liable in resper of his own negligence in this respect, Tarrant v. Webb, 18 C.B. 787; and he is bound to take all reasonable precautions to secure the safety of his workmen. Brydon v. Stewart, 2 Macq. 30. The above rules must now be read subject to the Factories Act, R.S.O., c. 208. Chapter 52 of the Ontario Acts of 1892 (amended by chapter 26, 1893), already referred to The Workman s Compensation for Injuries Act provides for compensation against an employer where personal injury is caused to a work- man by reason of 1. Defect in machinery. 2. Negligence of superintendent. 3. Negligence of any co-employee under whose orders the injured workman was. 4. Disobedience to by-laws of some other em- ployee. 5. Negligence of pointsman, driver, or train hand on a railway. Notice in writing must be given within twelve M ^amm i 126 NEGLIGENCE. weeks after the injury, and the action must be com- menced within six months, and in case of death within twelve months from the time of death. Workmen under certain circumstances (sec. 10) may contract themselves out of the Act. Assessors may be appointed for the purpose of ascertaining the amount of the compensation, which is limited (sec. 7). The clauses above quoted, relating to railway employees, apply also to other employees. In actions at Common Law, and not under Employers' Liability Act, the negligent directions or conduct of a fellow-servant, however nuich he may be higher in grade or responsibility than the one injured, cannot be reckoned as negligence of the common master. Howells V. Landore Steel Co , L. R. lo Q. B. 62, overruling doctrine put forward in Murphyw Smithy 19 C.IJ.N.S. 361. Fairiveather v. Given Sound, 26 O.R. 606. Knowledge of workman. Haii^/il V. U'oiituan ^ IVard, 24 O. R. 618. Master's knowledge of defect - if workman knows of this know- ledge he is not bound to give notice. ' Truuian v. Rudolph, 22 A.R. 250. Employers' liability — failure to furnish a guard, pei' se evidence of negligence on the part of the defendant?. Thoiiipson v. IV) li^^lit, 22 O.K. 127, Employment of child under twelve being illegal, employer must use extra care. O'l^nen v. Soiford, 22 O.R. 136. See. al.so, Caldivcll v. Mills, 24 O. R. 462. C Connor v. Hamilton Piridi^e Co., 21 A. R. 596, affirmed 24 S.C. R. 598. J/amtlton v. (J roes heck, 19 O.R. 76, affirmed l8 A. Iv. 437. McCloherty V. Gale, 19 A.R. 117, discussed in Rodgers v. Hamilton Cotton Co., 23 O.R. 425. WRONGFUL ACT, DEFAULT OR NEGLECT CAUSING DEATH. By R.S.O.. 1887, c. 135, (Lord Campbell's Act), An Act Rcspectinf^ Compensation to the Families of Persons Killed by Accidents and in Duels, an action is given to recover damages for the death of any person caused by any wrongful act, neglect, or default. DISTURBANXE OF SUPPORT OF LAND. 127 Such action shall be commenced within twelve months after the death of the deceased. See Ziinmerv. G.T.R., 19 A.R. 582, page 78, and-. The negligence is the cause of action, and the death of the person injured does not, under the statute, give rise to a fresh cause of action to the personal representative. Read v. G.E.R. Co., L.R. 3 Q.B. 555. The jury, in estimating the daUiages, cannot take into consideration the mental suffering of the sur- vivors or loss of society which they have sustained, but are to award compensation for pecuniary loss alone. Blake V. Midland Ry. Co., 18 Q.B. 93. ACTION FOR DISTURBANCE OP^ SUPPORT OF LAND. No one has a right to deprive the soil of his neigh- bor while in its original condition of lateral support, but the plaintiff may acquire a right to the support of the defendant's soil by grant, express or implied. Partridge v. Scott, 3 M. & W. 220. Tenant may maintam action. McCann v. ChishoUn, 2 O.R. 506. See Wray v. Morrison, g O.R. 180. The plaintiff can recover only damage which has already accrued from the interference with his right of support, for he can maintain a fresh action for each subsequent injury he may sustain, Mitchell V. Darley Main Colliery Co., 11 Ap. Cas. 127 D.P., 1[¥^- r: 128 OBSTRUCTION OF LIGHT OR AIR. 'j'S even although the damage has been accruing con- tinuously from the time of the defendant's act. Crumble v. Wallscnd Local Boards i Q.B. 503 C.A. (i8gi). See Snarr v. Granite, i O. R. 102. Injunction may be granted before actual damage occurs. Siddons v. Short, 2 C.P.D. 572. ACTION FOR OBSTRUCTION OF LIGHT OR AIR. By R.S.O., 1887, c. Ill, s. 36, no person shall acquire a right by prescription to the access and use of light to or for any dwelling-house, workshop, or other building ; but this section shall not appl\- to any such right acquired by twenty years' use before the 5th of March, 1880. This section altered the law as it stood under R.S.O., 1877, c. 108, s. 36, by which twenty years' access and use of light gave an indefeasible right. See Carter v. Grassett, 11 O.R. 331. r i r^. ACTION FOR DISTURBANCE OF WAY. The plaintiff must prove : 1. Possession of certain premises. 2. The existence of a right of way appurtenant thereto. 3. The disturbance of it by the defendant. The modes of proving a right of way are : 1. By express grant. 2. By user. 3. By necessity. N"'-l ; ' DISTURBANCE OF WAY. I2g The proof of a right of way by express grant is a question more of construction than evidence. The right of way by necessity arises by imphed grant. If A grants a tenement surrounded by his own land to B, B is entitled to the right of way to it through the land of the grantor if such way be absolutely necessary to the right of enjoyment to what is granted. As to the mode of ascertaining the way, see Pearson v. Spencer, i B. & S. 571. Formerly a right of way not claimed by express grant must have been shown to have existed from time immemorial, i.e., from the beginning of the reign of Richard I., A.D. 1189. This is called a claim by prescription at Common Law to distinguish it from a claim by prescription of statute. By R.S.O., 1887, c. Ill, s. 35, rights of way or water are not to be defeated by showing only that they began more than twenty years before. When enjoyed over forty years the right is indefeasible. The plaintiff must prove some disturbance by the defendant. By Short Form Act, R.5.O., 1887, c. 105, every deed, unless an exception be made therein, shall be held to include all ways, easements, and appurte- nances whatever to the lands therein comprised. See Maiighan v. Casci, 5 O.R. 518. The cases under Nuisance and Negligence, already cited, relating to Highways, should also be referred to as well as the following, which relate to the mode of dedication of a public highway in Ontario. Evidence may be received in contradiction to monuments placed under Survey Act. Retina v. Cosby, 21 O.R. 591. Crown Lands survey of record in Crown Lands Department gov- erns on a question of situation of road. 130 DISTURBANCE OF WAY. « 3 ^ I Kenny v. Caldwell, 21 A.R. no. Under the Municipal and Surveyors Acts by the filing of a plan and the sale of lots according to it abutting on a street, the propeity in the street becomes vested in the municipality, although they may have done no corporate act by which they may have become liable to repair. Roche V. Ryan, 22 O.R. 107. See Palmatier \. McKibbon, 21 A.R. 44.1. A street or road laid out upo ; a registered plan of a township lot, where there is not an incorpc ed village, continues to be a private street or road until adopted by the township council. Skilitzkeys. Cfans/on, 22 OR. 590. See Mcllmurray \. Jenkijis, 22 A.R. 398. Right of city to open roads laid out on plan. Goodcrhatn v. Toronto, 25 S.C R. 247. A mortgagee of land adjoining a highway is a person entitled to pre-emption of such land under ^Iunicipal Act. Brown v. Bttshey, 25 O.R. 612. DEFENCE. The defendant may, under the defence of the denial of the right, prove that the way was only a way by sufferance during the pleasure of himself and the plaintiff. Reignolds v. Edit'ards, Willes 282. As evidence of which he may show that he has kept a gate across the road or that the plaintiff has paid him a compensation for the use of the way. If the way is claimed as a way of necessity, the defendant may show that the plaintiff can approach the place to which it leads over his own land, and that consequently the way of necessity has ceased. Holmes v. Goring, 2 Bing. 76. The defendant may also show that the right of way has been removed and abandoned by acquiesc- ing in an obstruction for more than twenty years. Bower W.Hill, i N.C. 555. Or where it is claimed under the Act the defendant may show an acquiescence in an interruption for If "• i DISTURBANXE OF WATERCOURSE, 131 one year of the twenty or forty relied on by the plaintiff. Glover V. Coleman, L.R. 10 C.P. 108. The defendant ma}' also prove an extinguishment of the right by a substantial alteration in the original object of the grant of the way. Unity of possession extinguishes an easement. Clayton v. Corby, 2 Q.B. 813. The action cannot be brought by a reversioner unless the disturbance be of a permanent character, so as to threaten an injury to the freehold. ACTION FOR DISTURBANCE OF WATER- COURSE. The plaintiff must prove : • ■ 1. The possession of a mill, backwater, or other tenement in respect of which the right of water is enjoyed. 2. The right to the water. 3. The disturbance. 4. Tiie damage. A riparian proprietor has a right to a reasonable use of the water for his domestic purposes and for his cattle, v/ithout regard in the case of a deficiency to the interests of proprietors lower down the stream. Miner v. Gihnour, 12 Moo. P.C. 156. See Ellis v. Clemens, 22 O.R. 216. The right to use it to the prejudice of an}' pro- prietor of land above or below, by throwing back, diverting, or polluting it, is a right for which the claimant must show a title by contract, prescription, or other adequate authority. 132 DISTURBANCE OF WATERCOURSE. Mason v. Hill, 5 B. & Ad. i. The owner of the banks and bed of a river (not being a navigable one) may sever them and deal with them as with any other real estate. Elliott V. Baird, 26 Chy. 549. See Attrill v. Piatt, 10 S.C.R. 425. The rule of the civil law that the lower of two adjoining estates owes a servitude to the upper, to receive all the natural drainage, has not been adopted in this Province. What is a watercourse ? considered. Williams v. Richards, 23 O.R. 651. Arthur v. G.T.R., 25 O.R. 37. Rights of dominant and servient tenements con- sidered. Oliver v. Lockic, 26 O.R. 28. Effect of reservation in favor of Crown of free passage over navigable waters in a water lot. Cidlerton v. Miller, 26 O.R. 36. Sections 3 to 6, incljsive, of the Act respecting Mills and Mill Dams (R.S.O., 1887, c. 118) relate to appli- ances for passing timber. By section 15, when an action is brought against a millowner for overflo'v caused by his mill dam, and it appears that thj injury was caused by a dam which was built before the purchase of the land by the grantee of the Crown, and before the grant there- of to him, and that the purchaser obtained a reduc- tion of the price of the land, or was otherwise indem- nified in consequence of its being so overflowed, then at the trial these facts may be taken into con- sideration. . By R.S.O., 1887, c. 119, An Act respecting Water Privileges, persons desiring to enter and acquire lands for improving water privileges may do so in INFRINGEMENT OF COPYRIGHT. 133 the mode provided by the Act. An application is made to the County Judge. By R.S.O., 1887, c. 120, An Act for Protediug the Public Interest inRivei's, Streams, and Cr^^^s, provisions are made allowing the construction of improvements for the purpose of floating down timber and for levy- ing tolls. By R.S.O., 1887, c. 121, The Saw-logs Driving Act, provision is made for the proper management of driving logs down rivers and streams. ACTION FOR INFRINGEMENT OF COPYRIGHT.* R.S.C.jC. 62, The Copyright Act, contains full pro- visions as to who may obtain copyright and how copyright may be obtained. International copyright is governed by 7 and 8 Vict., c. 12. As to copyright in the colonies, see 10 and 11 Vict., c. 95. Smiles v. Belford, i A.R. 436. Anglo-Can. v. Winnifrith, 15 O.R. 164. Anglo-Can. v. Suckling, 17 O.R. 239. A plaintiff mus*" prove, in an action for infringe- ment of copyright, that he was entitled to copyright at the time copyright was granted, and that the requisites of the Act as to deposit of copy, etc., had been complied with. By section 26 all copies and extracts certified * The Exchequer Court of the Dominion has jurisdiction over questions relating to Copyrights, Patents, and Trade Marks. Dominion Act, 1891, c. 36. vw I t I !?';■■ 134 INFRINGEMENT OF TRADE MARK. from the Department of Af^riculture shall be received in evidence without further proof and without pro- duction of the originals. As to copyright in Lectures, see Abernethy v. Hutchinson, 3 L.J.O.S. Ch. 209. Nichols V. Pitman, 50 L.T. 254. To create a perfect right under the Copyright Act there should be an assignment in writing of such parts of the book as the owner of the copyright is willing to permit his licensee to publish. The owner may disentitle himself by his conduct to an injunction. Allen V Lyon, 5 O.R. 615. See The Canada Publishing Co. v. Gage, 11 S.C.R.306. Lancefield v. A nglo-Can. Music A ssn., 26 O.R. 457. Circulars, Church V. IJnton, 25 O.R. 131. A person resident in England who procures a book for valuable consideration to be compiled for him is the proprietor thereof and entitled to copyright the same under R.S.O., c. 62. Frowde v. Parish, 27 O.R. 526, 16 C.L.T. 249. :\ ■;.. 1 ACTION FOR INFRINGEMENT OF TRADE MARK.* The principle on which the Court protects trade marks is that it will not permit a party to sell his goods as the goods of another. McCall v. Theal, 28 Chy. 48. Trade marks are provided for by R.S.C., c. 63. •See Dominion Acts, 5891, chapters 26 and 35, as to Exchequer Court. INFRINGEMENT OF TRADE MARK. 135 m The questions to be determined are : 1. Whether the defendant's mark is a colorable imitation of the plaintiff's mark. 2. Whether the defendants have been selling goods so marked, so as to lead purchasers to believe that they are the plaintiff's goods. Mitchell V. Henry, 15 Chy. I). iSi. C.A. See BusJi v. Hansun, 2 Ex. C.K. 557. DeKuyper v. VanDnlken, 24 S.C.R. 114. To found an action at law there must have been an intention to deceive and make the goods pass as those of the tradesmen who had appropriated the marks, and the questions for the jury are : Is the resemblance such as to deceive ordinary persons ? Was the mark adopted by the defendant with that intent, and in order to supplant the plaintiff's goods ? If the jury fmd in the affirmative, no special damage need have been proved. It is not necessary that the defendant should be aware that the mark had been appropriated by the plaintiff. Fox V. Millington, 3 Myl. & Cr. 338. It is not necessary to show that defendant's goods are inferior to the plaintiff's. Blofield V. Payne, 4 B. & Ad. 410. Evidence of prior user is available as a defence. Partho v. Todd, 17 S.C.R. ig6. See Robinson v. Bogle, 18 O.R. 387. Want of registration considered. Carey v. Goss, 11 O.R. 119. A man cannot have a monopoly in a geographical name as such. There must be some secondary meaning connoting character cr quality of the product. Roses. McLean, 27 O.R. 325. 136 INFRINGEMENT OF PATENT. ACTION FOR INFRINGEMENT OF PATENT. The issue of patents is regulated by R.S.C., c. 61.* The patent is proved by producing the patent itself. By section 50 the seal of the Patent Office is to be evidence, and all copies or extracts certified under the seal of the Patent Office shall be received in evidence without further proof and without produc- tion of the originals. The plaintiff must prove that the article was not made by him or his agents. The question of fraudu- lent intention to infringe is not material ; the acts alone are material. The plaintiff must, in the first instance, give some slight evidence of the nature and novelty of the invention. Prior use may avoid a patent, though not generally if the use was not secret. The plaintiff must elect whether he will proceed for damages or for an account which the Court may award. He cannot have both. Belts V. DeVitre, L.R. 6 H.L. 319. Beam v. Merner, 14 O.R. 412. Ball V. Crompton, 13 S.C.R. 469. DEFENCE. 1. Denial of grant. 2. Denial of infringement. A slight deviation from the process described in the specification, for the purpose of evading the patent, is a fraud. The question is whether the defendant's mode is substantially different. If a well-known equivalent, chemical or mechan- cal, is substituted by the defendant for part of the *See, also, Dominion Acts 1892, chapter 24. i:i!r:'i: INFRINGEMENT OF PATENT. 137 patent invention, it is a mere colorable variation, and therefore an infringement. The mere insertion of one known article in place of another in a combination is not patentable. Wisner v. Coulthard, 22 S.C.R. 178, referring to Smith V. Goldie, g S.C.R. 46. Hunter \. Carrick, 11 S.C.R. 300. Carter v. Hamilton^ 23 S.C.R. 172. A patent for a combination of several things, old and new, is infringed by an imitation of that part which is new. 3. That the plaintiff is not the first inventor, or that the invention is not new. 4. Public user before patent granted. If the invention was publicly put in use by the in- ventor before the grant, it will avoid it, though mere knowledge and publication of it after invention but before grant will not. 5. That the specification does not truly describe the invention and how it is to be performed. Section 13 of R.S.C., c. 63, sets out the requisites for the specification. Section 28 of the same Act voids a patent if any material allegation in the petition or declaration of the applicant required by the Act in respect of such patent is untrue, or if the specifications and draw- ings contain more or less than is necessary for obtaining the end for which they purport to be made when such omission or addition is wilfully made for the purpose of misleading. If the omission or addition were involuntary, a patent may be allowed to be good to a partial extent. A specification may be void for uncertainty. Taylor v. Brandon Mfg. Co., 21 A.R. 361. t ' 1 ■St ^ ' Kk V'4m I'St: I3» DFXEIT AND MISREPRKSENTATION. Sections 30, 31, 32, and 33 deal specially with actions for infrinp^ement of patent, and provide that such actions may be brought in any Court of Record havinf^ jurisdiction to the amount of the damages claimed in the Province in which the infringement is alleged to have taken place, and which is also that one of the said Courts which holds its sittings near- est to the place of residence or business of the defendant. Power is given to issue injunctions, and where it appears that the defendant used or infringed any part of the invention justly and truly specified and claimed as new, the Court may discriminate. The defendant is allowed to plead specially, as matter of defence, any fact or default which, by the Act itself or by law, renders the patent void. 6. License to use. If an interest is transferred in a patent then it requires the consent of both parties to put an end to the transfer, but if the transaction is merely per- mission on certain terms to invade the monopoly, then the licensee may at his option renounce the license and make the machine patented at his peril. Noxon v. Noxon, 24 O.R. 401. 7. Right acquired Dy prior manufacturer under s. 46 of Patent Act. Fowell v. CJiown, 25 O.R. 71. ACTION FOR DECEIT AND MISREPRF . SENTATION. An action will lie in respect of a fraudulent repre- sentation made by the defendant to the plaintiff, intended to be acted on by him, and on which he has acted and thereby suffered damage. Pasley v. Freeman, 3 T.R. 51. Ml i -ill! MALICIOUS PKOSKCUTION. 139 With respect to the liability of A for the fraud of another person, A is liable for the fraudulent repre- sentations made b}- bis ap^ent H in the course of carrying on A's business for his benefit. A person is responsible for a false representation made by him to another on which a third person acts, provided that the representation were made with the direct intent that it should be acted on by such third person in the manner that occasions the injury, and that the injury be the immediate con- sequences of the representation. Garland v. Thompson, 9 O.K. 376. The plaintiff must prove actual damage to himself in order to maintain the action. Hyde v. Buhner, 18 L.T.N.C. 293. In order that a representation be actionable, it must be fraudulently made. Willie V. Sage, 19 A.R. 135. A party who seeks to set aside a conveyance of land executed in pursuance of a contract of sale for misrepresentation as to a matter of title is bound to establish fraud to the same extent and degree as a plaintiff in an action for deceit. Bell V. Macklin, 15 S.C.R. 576. ACTION FOR MALICIOUS PROSECUTION. The plaintiff must prove : 1. The prosecution of the plaintiff. 2. Its determination. 3. That the defendant was the prosecutor. 4. His malice and want of probable cause. 5. The damages sustained. The fact of the prosecution, where instituted in f ii l:i 140 MALICIOUS PROSECUTION. 1^ M the Superior Courts or Sessions, is usually proved by the production of the record or an examined copy. By R.S.O., 1887, c. 61, s. 23, a certified copy of a record is evidei'ce of the record. Hewitt V. Cane, 26 O.R. 133. See judgment on page 147. O'Hara v. Dougherty, 25 O.R. 347. The proper evidence to establish the fact that the defendant was prosecutor is : thai the defendant em- ployed a solicitor or agent to conduct the prosecution; that he gave instructions concerning it, paid the ex- penses, procured the attendanceof witnesses, or was otherwise active in forwarding the prosecution. It is essential that the plaintiff should give some evidence of the defendant's malice. If the plaintiff proves want of probable cause, malice may be in- ferred; but for this purpose the want of probable cause must be proved to the satisfaction of the jury. Want of probable cause is not conclusive evidence of malice. Winfieid v. Kean, i O.R. 193. The onus of proving the want of reasonable and probable cause, and of proving the existence of such facts as are evidence of such want, lies on the plain- tiff. ** Reasonable and probable cause is for the Judge." Martin v. Hutchinson, 20 O.R. 388. Wilson V. Tennant, 25 O.R. 339. If there is any conflict of evidence the jury must find as to facts. The Judge cannot withdraw the case from them because in his opinion there was reasonable and probable cause for the prosecution. Hamilton \. Cousineau, ig A.R. 203. Where a prosecutor has bond fide taken and acted upon the opinion of counsel laying all the facts DEFAMATION. 141 before him, this is evidence to prove reasonable and probable cause. Martin v. Hutchinson, 21 O.R. 388. The jury may give damages for the loss of reputa- tion, the imprisonment (if any has taken place), and the expenses incurred by the plaintiff in making his defence. See Beatty v. Rumble. 21 O.R. 184. Gordon v Rumble, 19 A.R. 440. DEFENCE. The d fendant may not give evidence of the plain- tiff's bad character. ACTION FOR DEFAMATION.* The Ontario Act relating to libel and slander is R.S.O., 1887, c- 57» irnended i88g, 1894. The Dominion Act respecting libel is R.S.C., c. 163. There is a well-known distinction between written and spoken slander. False defamatory words, if spoken, constitute a slander ; if written and pub- lished, a libel. Words which produce any per- ceptible injury to the reputation of another are called '* defamatory." If false, they are actionable. In any given case the fact that the words em- ployed by the defendant nave perceptibly injured the plaintiff's reputation may be either 1. Presumed from the nature of the words them- selves, or 2. Proved by evidence of their consequences. 'County Courts have no jurisdiction. Ontario Acts 1896, ch. 19, sec. i. Nor Division Coutts, R.S.O., ch. 51, sec. 69. 142 DEFAMATION. It will be presumed from the nature of the words themselves, (a) If the words, being written and vublished, or printed and published, are in any way disparaging to the plaintiff, or tend to bring him into ridicule and contempt. (b) If the words, being spoken, 1. Charge the plaintiff with the commission of some indictable offence. 2. Impute to the plaintiff a contagious disorder tending to exclude him from society. 3. Are spoken of the plaintiff in the way of his profession or trade, or disparage him in an office of public trust. In all these cases the words are said to be action- able per se, because on the face of them they clearly must have injured the plaintiff's reputation. But in all casts of spoken words the fact that the plaintiff's reputation has been injured thereby must be proved at the trial by evidence of the consequen- ces that directly resulted from their utterance. Such evidence is called " evidence of special damage," as distinguished from that general damage which the law assumes, without express proof to follow from the employment of words actionable per se. The intention or motive with which the words were spoken is, as a rule, immaterial. Sometimes it is a man's duty to speak fully and freely, and without thought or fear of the conse- quences ; and then the above rule does not apply. The words are privileged by reason of the occasion on which they were employed, and no action lies therefor unless it can be proved that the defendant was actuated by some special spite, or some wicked or malicious motive. In all other cases malice in li< 1, DEFAMATION. 143 fact need not be proved at the trial. The words are actionable if false and defamatory, althou*:^h spoken or published accidentally or inadvertently, or with an honest belief in their truth. The person defamed has a civil remedy to recover damages, and in some cases he can also proceed criminally by way of information or indictment. There is no censorship of the press. Any man is fr^e to speak or to write and publish whatever he pleases of another, subject only to this : that he must take the consequences should a jury deem his words defamatory. This is what is meant by the *' liberty of the press."* The question in each case is, Has the reputation of this mdividual been appreciably impaired in con- sequence of the words employed by the defendant ? No general rule can be laid down beforehand what words are defamatory and what are not. The injury to the reputation is the gist of the action. In libel the words need not necessarily impute disgraceful conduct to the plaintiff; it is sufficient if they ren- der him contemptible or ridiculous. Every one has a right to comment on n:iatters of public interest and gen al concern, provided he does so fairly and with an honest purpose. It is often said that such criticism is privilci^cd. This does not mean that the words are *' privileged by reason of the occasion " in the strict legal sense of the term. The ♦ An injunction can be obtained to probibit the publication or republication of libel, or to restrain its sale. Ofa trade libel, ThorUy's Cattle FoodCo. v. Massam, 14 Ch. I). 763 C.A. Of other libels, 2oCh.I). 511. To restrain the utterance of slanderous statements, Loog V. Bean, 20 Ch.D. 306 C.A. 144 DEFAMATION. H f .r ■ ^IHII' defence is really that the words are not defamatory — that criticism is no libel. What are matters of public interest ? The public conduct of every public man. All political, legal, and ecclesiastical matters, therefore, are matters of pub- lic concern. With regard to construction the question is, How would ordinary men, previously unacquainted with the matter, fairly understand the words ? This is clearly a question for the jury, and there- fore it is expressly provided (32 Geo. III., c. 69, Fox's Libel Act) that in all criminal actions for libel the jury are to decide the question of libel or no libel, subject to the direction of the Judge. In civil pro- ceedings for libel the practice is the same, save that here, if the Judge thinks that the words cannot pos- sibly bear a defamatory meaning, he may enter a non-suit. If the Judge considers that the words are reasonably susceptible of a defamatory meaning, as well as an innocent one, then it will be a question for the jury. The Judge should not lay down as a matter of law that the publication complained of is or is not a libel. The proper course is for the Judge to define what is a libel in point of law and leave it to the jury to say whether the publication in question falls within that definition. So, too, in slander the Judge usually decides whether the words are or are not actionable per se, and whether the special damage assigned is or is not too remote. If the defendant's words cannot reasonably bear the meaning attached to them by the innuendo, and the Judge thinks the words with- out that meaning are not actionable, he will stop the case ; but where there is any reasonable doubt as to DEFAMATION. 145 the true construction of the words, the Judge leaves the question to the jury. The innuendo is the statement by the plaintiff of the construction he puts upon the words himself, and which he endeavors to induce the jury to adopt at the trial. If, in their ordinary English meaning, the words used would be intelligible, facts must be given in evidence to show that they may have been used in a particular sense on this particular occasion. After that has been done a bystander may be asked, " What did you understand by the expression used?" — not before. If the words are local, or slang, or cant terms, etc., evidence is admissible to explain their meaning (provided such meaning has been properly alleged in the statement of claim). Daines v. Hartley, 3 Exch. 200. Huber v. Crookall, 10 O.R. 475. Where the meaning of the defendant's words is clear or has been ascertained, the next question is. Was the imputation sufficiently definite to injure the plaintiff's reputation ? Is it clear that it was the plaintiff to whom he referred ? Unless these questions can be answered in the affirmative no action lies. Publication is the communication of the defama- tory words to some third person. It is essential to the plaintiffs case that the defendant's words should be expressed. It is no publication when the words are onl}^ communicated to the person defamed ; for that cannot injure his reputation. There must be a communication by the defendant to some third person other than the plaintiff. The plaintiff must prove a publication by the defendant in fact. That the third person had the opportunity of reading 146 DEFAMATION. ill illfW the libel is not sufficient, if the jury are satisfied that he did not in fact avail himself thereof. Though composing a libel without publishing it is not actionable, merely publishing it without com- posing it is actionable. So again, every sale or delivery of a written or printed copy of a libel :s a fresh pubHcation, and every person who sells or gives away a written or printed copy of a libel may be made liable, unless he can satisfy the jury that he was ignorant of the con- tents. There is a great difference between libel and slan- der. The actual publisher of a libel may l>e an innocent messenger ; whereas in every case of a republication of a slander the publisher acts con- sciously and voluntarily — the repetition is his own act. Therefore if A slanders B, A is only liable for the damages which result directly from his own act. The truth of any defamatory w^ords is, if pleaded, a complete defence in any action of libel or slander (although alone it is not a defence in a criminal trial). The onus of proving that the words are true lies on the defendant. A justification must always be spe- cially pleaded. In criminal matters the defendant must also prove that it was for the public benefit that the matters charged should be published. Before 1843 (6 and 7 Vict., c. 96) the truth of the libel was no defence to the indictment. The maxim prevailed, *' The greater the truth the greater the libel."* It is a defence to an action for libel or slander to prove that the circumstances under which the defamatory words were written or spoken afforded III *It» Rome the truth of the libel was undoubtedly a defence both to criminal and <;lvil proceedings. (See Horace's Satires, Bk. II. i, 83, 5.) DEFAMATION, M7 an excuse for their employment. And tliis is so even though the words be proved or admitted to be false. The occasion is said to be privileged. The utterance is excused for the sake of common convenience and for the welfare of society. There are two kinds of privilef][ed occasions — 1. Absolutely privileged, such as words spoken in Parliament. 2. Qualified. The course of procedure at the trial is as follows : The plaintiff is always entitled to begin, even ^vhere the onus of proof lies on the defendant. The plaintiff must prove, where necessary, his special character. He must next prove that the defendant published the libel or spoke the slanderous words to some third person. The libel itsi^lf must be produced at the trial. The jury are entitled in all cases to see it. Tlie defendant is entitled to have the whole of it read. Whether a communication is or is not privileged is a question for the Judge alone. If there is any doubt as to the circunistances the jury hnds what they were, and then, on their findings, the Judge decides whether the occasion was privileged or not. If the occasion was not privileged, and the words are defamatory and false, the Judge will direct a verdict for the plaintiff. If the occasion was abso- lutely privileged, judgment will be given for the defendant. If, however, the Judge decides that the occasion was one of (jualified privilege only, the plaintiff must then, if he can, give evidence of actual malice on the part of the defendant. If he gives no such evidence, it is the duty of the Judge to nonsuit him or to direct a verdict for the defendant. If he does give any evidence of malice sufficient to go to ' !: •Hv 148 DEFAMATION. il '■ the jury, then it is a question for the jury whether or not the defendant was actuated by malicious motives. Mahce is defined as any indirect and wicked motive which induces the defendant to de- fame the plaintiff. If mahce be proved, the privilej^e attaching to the occasion is lost at once. In cases of slander the only way to prove publica- tion is by calling those who heard the defendant speak the words. Whenever the words used are not well known and perfectly intelligible English, but are foreign, local, technical, provincial or obsolete expressions, parol evidence is admissible to explain their meaning, provided such meaning has been properly alleged in the statement of claim by an innuendo. If the libel does not name the plaintiff, there may be need of some evidence to show who was meant. The plaintiff may give evidence of all surrounding circumstances, i.e., the cause, the occasion of publi- cation, later statements made by the defendant, and other extraneous facts which will explain and point the allusion. The plaintiff may also call at the trial his friends or others acquainted with the circum- stances, to state that on reading the libel they at once concluded that it was aimed at the plaintiff. It is not enough for the plaintiff to prove his special character, and that the words refer to himself; he must further prove that the words refer to himself in that special character, if they be not otherwise actionable. The Judge must decide whether the occasion is or is not privileged, and also whether such privilege is absolute or qualified. Malice may be proved either by extrinsic evidence of personal ill-feeling or by intrinsic evidence, such DEFAMATION. 149 as the exagf^erated language of the libel, the mode and extent of publication, and other matters in excess of the privilege. If the defendant has pleaded a justification, the plainti.Ts coimsel may, if he chooses, rebut the justifi- cation, or he may leave such proof till the reply ; but he cannot call some evidence to rebut the justifica- tion and more afterwards, thus dividing his proof. The plaintiff need give no evidence of any actual damage where the words are actionable per se. He can nevertheless recover substantial damages. But if the plaintiff has suffered any special damage, this should be pleaded and proved. It cannot be proved unless it has been pleaded. Where the words are not actionable per se, the plaintiff cannot prove a general loss of custom ; he must call individual cus- tomers and friends, and ask them why they have ceased to deal at his shop or to entertain him. DEFENCE. The defendant's counsel often prefers not to call any witnesses, so as to have the last word with the jury. He may rely instead upon the cross-examina- tion of the plaintiff's witnesses. These may be cross- examined not only as to the facts of the case, but also as to the credit, i.e., as to matters not material to the issue, with a view of shaking their whole testi- mony ; but the defendant must take the witness' answer — he cannot call any evidence to contradict it, except on the pomt of a previous conviction. The defendant must be careful not to increase by such cross-examination the amount of damages that may be given against him. The defendant may show that the plaintiff's trade is illegal. wmmmmm mmmmm 150 DEFAMATION. Thedefendaiit may show, in initifijationofdama^^es, that he published the Hbel innocently, without any knowledge of its contents. He may also give evidence of antecedent conver- sations and transactions, or other circumstances well known to the bystanders, which show that the words were not used in their ordinary signification. The defendant may urge that the occasion of publi- cation was privileged. The defendant may also prove the justification. Strict proof must be given that the whole charge made is true in every particular. * Where no justification is pleaded the defendant can give no evidence of the truth of his words, not even in mitigation of damages. The Law of Libel Act, 1894, and the Law of Slander Amendment Act of i88g amend the Revised Statute. These Acts are so important that I append them. Law of Slander Amendment Acty i88g. Proof of special damage not reiiuireil in certain cases. Statement of claim to refer ♦o this Act. Security for costs. 1. (i) In any action of .slander for defaniitory words spoken of any woman and imputing or meaning that such woman has committed or been guilty of either adultery, fornication or conculiinage, it shall not be necessary to allege in the plaintiffs statement of claim, or to prove at the trial, that any special damage resulted to the plain- tiff from the utterance of such words, but the plaintiff may recover nominal damages without averment or proof of special damage. (2) A plaintiff shall not under this Act, or because or by reason of the provisions in this Act contained, be en- titled to recover a verdict in any such action, unless in the plaintiff's statement of claim when filed in such action there is contained an allegation that the action is brought by the plaintiff under the provisions of this Act. {3) In any such action, the defendant may, at any time after the filing of the statement of claim, apply to the Court or a Judge for security for costs, upon notice and DKIAMATION. 151 anaflid.ivii liy tlie defendant showing the nature of the iclion .111(1 tli.u the i)laintitf is not possessed of property sufficient to .inswor the co-ts of the action in case a ver- dict or judgment lie ^iven in favor of the defen«hint, and thai the defenihinl has a ^ood defence to the action on the merits, or tliat the j^rminds of action are tiivial or frivolous ; and the Court or Judj^e may make an order that the pLuDtilV shall ijive security for the costs to he incuned in such action, and the security so ordered shall he j^iven in accordance with the practice in cases where a plaint iff resides out of the Province, and the order shall he a stay of proceedint^s until the proper security is ^iveii us aforesaid. (4) I'"or the purpose of sub-section 3 of this section the Kxaminaiion l)laiiitilf or the defendant may he examined upon oatli at ' r'"'"'"^'*' any lime after the statement of claim has been died.' Law uf Libel Act, i(S().|. 1. This Act may he cited as •' 7''ie /. 1 1 1* '> ll fe^Ji IjMI ■fe,wl'»'! 1^1 HnBI m IflPIl? 13-i li'ia Consr>lidatiMii of differeiu actions for same libel. III- How duiiiages assessed and co&ts apportioned in such cases. i .1 A.'iA . Joinder of certain persons as party defendants. li^ I'! DKl-AM.M ION. claim or cl.tini.s for any other libel or lil)els published af»ainst the plaintiff or plaintiffs by the defendant in the same newspaper within a jieriod of one year prior to the commencement of the action. 5. (I) It shall be competent for a iudge of the Hifih Court of justice upon an application by or on behalf of two or more defendant.s, in any actions for the same or .substantially the same libel, brouj^ht by one and the s.ime person, to make an order for the consolidation of such actions, so that they shall be tried toj^ether ; and after such order has been made, and before the trial of the said actions, the defendants, in any new actions, instituted in respect to the same or substantially the same libel, shall also be entitled to be joined in a common action upon a joint ap|>lication being made l)y such new defendants and the defentlants in the actions already con- solidated. (2) In a consolidated action under this section the jury shall assess the whole amount of the damages, if any, in one sum, but a .separate verdict shall be taken for or against each defendant in the same way as if the actions consolidated had been tried sepaiately; andif the jury shall have found a verdict against the defendant or defe. d- ants, in more than one of the actions so consolidated, they shall proceed to apportion the amount of damages which they shall have so found between and against the said last mentioned defendants; and the judge at the trial, in the event of the plaintiff being awarded the costs of the action, shall thereupon make such order as he shall deem just for the apportionment of such costs between and against such defendants. 6. (i) In any action instituted for the publication in a newspaper of any defamatory matter which has been communicated in writing by any per.son to such news- paper with a view to its publication therein, the defend- ant may at any stage of the proceedings, upon notice to such person and an affidavit verifying the facts, apply to a judge in Chambers for an otder joining such person as a party defendant in the action, and such person may be so joined on such terms as may appear to be just : and thereafter the defendant in the action, whois charged with the publication in the newspaper of the defamatory matter complained of, may claim in the action against the party so joined as aforesaid any remedy over or relief to which, under the circumstances, he may by law be entitled against such party. '0m DKI-AMATION. 153 (2) This section shall not apply where the defamatory matter was known by the defenthinl to be untrue, or ■vras contained in an anonymous communication. 7. An order of a judge of the High Court granting o^q d r fo refusing security for costs in an action for libel contained jecuriiy for in a newspaper, made under section 9 of the «*/7Vt'7v. Loudon Ftce P.css, 27 (). R. 6. When the occasion is j^-rivileged the plaintiff's rase fails unless there is eviilence of malice in fact, and the burden of proof on this point is on the plaintiff. He must adduce evidence upon which a jury might s?y that the defendant abuseil the occasion either by wilfully stating that as true which he knew to be untrue, or staling it in reck- less disregard whether it was true or false. Hanes v. Btirn/iain, 26 O.R. at pages 535, 536. See IVi'Us v. Lindiip, 15 A.R. 695. /\oss V. Biuke^ 21 O.K. at p. 702. 7 ay lor v. A/asscy, 20 O.R. 429. In the case of IVil/s v. Cai/aan, 14 A.R. 656, above referred to, a new trial was had, reported 17 O.R. 223. It was decided, as the defendant had pleaded " fair comment," he wa= entitled to show that the matters ujion which he commented were tru>.. This case was dis- cussed and limited in Jho7vii v. Moyer, 20 .\.R. 509. The Court of Appeal held that under such defence evidence of the existence of a cer- tain state of facts on which it was alleged the comment wasfaiily made was admissible, but not evidence of the truth of the statement. Pleailing justification is not in itself evidence of malice entitling the plaintiff to have the cr.se sulnnitfed to a jury. Corritlaii\. IVilkiiison., 20 A. K. 184. It is quit3 another question whether when the defence of privilege has failed it may not lie looked upon as some evidence of malice iti aggravation of damages. Casci cited at end of judgment in last case, ■ Mercantile .Agency. No special pr*' 'lege of 7'odd\. Dun, U'lman er' Co., 15 A.R. at p. ico. Cassette v. Dunn, 18 S.C.R. at p. 240. It is proper to ask witnesses who, in their opinion, is aimed at by the libel in question. MALICIOUS AKREST. »55 It is n()t proper to ask a witness whether, in his opini'^n, the allefred libel is likely to cause injury to the pliiiniiff's l)usiness. Journal Printing Co. v. Mai Lean, 23 A K. 324. An action for libel lies aj^ninsl a municipal corporat;' m. Mi Lay w /h'ltc, 14 O.K. 398. ACTION FOR MALICIOUS ARREST AND ABUSE OF CIVIL PROCESS. In an action for malicious arrest the plaintiff must )rove : 1. The affidavit for the JucLre's order to arrest. 2. Its falsehood. 3. The order for the arrest. 4. The arrest under it. The rescission of the order or the deteriniuatioii of the suit. 6. The defendant's malice and want of reasonable D- and probable cause. 7. The damage. Coibevt V. Flicks, 5 A.R. 571. See Coffey v. Scaue, 25 O.R. 22. As to actions against mag.strates and other officers, see under '' Actions for False Imprisonment," post. The present Ontaruj Act respecting arrest and im- prisonment for debt is R.S.O., 1887, c. 67. ACTION FOR WRONCFUL DISTRESS. EXCESSIVK DISTRKSS. Found' 1 on 52 Hen-'v III., c. 4, which enacts that "distress shall be reas-^ '-table and not too great, and he that taketh great c id unreasonable distresses shall be grievously amerced for the excess of such distresses." m i ojj'. ?i!^!^8 i B p 155 WRONGFUI. DISTRHSS, The plaintiff must prove : 1. The tenancy of the defendant at a certain rent. 2. The rent claimed to be due. 3. The taking a distress of goods of much greater value than the rent in arrear and charges of thi: distress. 4. The damages. The simple fact of making a distress accompanied I)} an untrue claim of iiiore rent than is due, and selling the goods und( - such claim, is not actionable unless some speri.u djimage be proved, or unless it be shown that a .^rger quan^'^v of goods has been sold than was sufticiien: to sa... ly the rent actuall\ in arrear. TancYcd v. Ln^mid, i*^ Q-B. 6^»() In an action forexces - :^s, the piaintirtuia} recover, though no special (teflvpe be proved. Black V, C<. •/, Z9 U-CX.P. 507. The tenancy must be proved b\' production and proof of the lease, or by the defendant's rec ^ for rent or notices to quit, or other admission Ixy jlllui of the tenancy, or by oral evidence of the contract when there is none in writing. These preliminary statements are, howev-^i usually admitted by the bailiffs notice of distress or other proceedings. The plaintiff must prove that his goods were dis- trained, but it is not necessary to prove that they were sold or taken away ; the seizure as a distress is sufficient. The f;ict of the distress may be proved by calling the bailiff or other person who made the distress, who will also prove his authority from the defendant. If this evidence cannot be procured, the plaintiff should serve the defendant with notice to produce WRONGFUL DISTRESS. 157 the warrant of distress and give secondary evidence of it, or should connect the act of the bailiff with the defendant by some other evidence. When a landlord is about to make a distress he is not bound to calculate very nicely the value of the property seized, but he must take care that some proportion is kept between that and the sum for which he is entitled to take it. In order to establish the excess the plaintiff must be prepared with proof of the value of the goods seized. The question of excess is for the jury. Smith V. Ashforth, 29 L.J., Ex. 259. DEFENCE. Not guilt3% by statute 11 George II., c. 19, ss- 19, 21. The defendant may give evidence that the distress was not excessive, or that the chattel dis- trained was entire, and that there was no other distress ; but this statute does not apply to an illegal distress. Field V. Mitchell, 6 Esp. 71. Where a party distrained as landlord on goods which, as a matter of fact, had by subsequent agree- ment between himself and the tenant before the distress become his absolutely. Held, that he might justify the taking on this latter ground. Bell V. Irish, 45 U.C.R. 170. Schultz V. Reddick, 43 U.C.R. 155. IRREGULAR DISTRESS. At Common Law goods distrained for rent were merely a pledge, and could not be sold. 2 William and Mary, c. 5, gave the landlord the power of selling the goods, subject to the provisions of that Act, which must be strictly complied with. 1,? 158 WRONGFUL DISTRESS. If there was any irregularity in making or treating the distress, the landlord was at Common Law liable as a trespasser ab initio. This rule was altered, in the case of a distress for rent due, by 11 George II., c. 19, s. 19, which enacts that a part} aggriev^ed by an irregularity can recover satisfaction for the special damai^e sustained thereby. In an action for selling goods distrained for rent without appraisement the measure of damages is the real value of the goods sold minus the rent due. KnigJit V. E<^crton, 7 Ex. 407. Schiiltz V. Rcddick, 43 U.C.R. 155. DEFENCE. By II George II., c. 19, s. 20, it is provided that the tenant shall not recover for any unlawful act or irregularity if tender of amends has been made by the party distraining before action brought. ILLEGAL DISTRESS. Where a distress is made by a stranger, or by a person who has no right to distrain, an action for trespass or conversion will lie Where a distress is made by a landlord (i) no rent being due,* or (2) after a tender of the rent, or (3) after a formal distress, or (4) if the distress be illegal owing to the time, place, or man -ler of making it, or from the nature of the goods taken, the pro- ceeding is illegal ab initio, and an action f')r trespass or conversion, or of replevin, may be maintained. *Where a landlord ilistrains and sells where no rent is due, by 2 W. & M. Sess. I.e. 5, s. 4, the plaintiflf shall recovL-r double the value of the goods distrained. See McCalluiti v. Snyiii'r, 6 U.C. L. ]. 187. //c'A' V. ll'/iite, 17 U.C.C.P. 52." i^V//v. /m//, 45 U.C.R. 167. McCaskill V. Kodd. 14 O.K. 282. m W RO X G I" V r. D 1 ST K li S S . 159 An action for distraining:; for more rent than is due cannot be maintained without a tender of the sum which is really due. Ou'oi V. Taylor, 39 U.C "^-^ 358. In the case of an illegal distress, the measure uf damages is usually the value of the goods seized, and no deduction can be allowed for any rent due. Attack V. Ih'amwcU, 3 B. cS: S. 520. DEFENCE. The defence of not guilty b}- statute above referred to (II George II., c. ig) lets in evidence of every- thing that might lawfully be done in order to make the distress. R.S.O., 1887, c. 143, .^1;/ Act respective the Law of Landlord and Tenant, contains provisions as to ex- emptions from distress. Section 27 enacts that goods exempt from seizure under execution are not liable to seii:ure by distress. By section 28 goods on the premises not the prop- erty of the tenant are to be exempt under certain restrictions. Section 29 gives the tenant a right of set-off against the rent due, a debt due to him by the land- lord. By section 30 a tenant who is in default for non- payment of rent, and claims the beneht of the exemp- tion under the Act, must give up possession of the j)remises. B}' section 31, the Common Law strict demand of rent is dispensed with when the landlord is entitleri 2, upon the trial of an action for seduction brought by the father or mother, it shall not be necessary to prove service performed by the person seduced, but the same shall in all cases be presumed, and no proof shall be received to the contrary. In case the father or mother of the female seduced had, before the seduction, abandoned her and refused to provide for and maintain her as an in- mate, then any other person who might at Common Law have maintained an action for the seduction mav maintain such action. By section 3 anv person other than the father or mother who could at Common Law have maintained an action for an unmarried female may still main- tain such action if the father or mother be not resident in Ontario at the time of the birth of the child which may be born in consequence of the seduction, or, being resident in Ontario, does not bring an action for the seduction within six months from the birth of the child. Subject to the above Act the planitiff must prove : 1. That the party seduced was in the plaintiff's service. 2. The seduction. The plaintiff must prove the defendant to have been the father of the child ; mere proof of seduction by him will not be sufficient. Kimball v. Smith, 5 U.C.R. 32. 3. The subsequent loss of service. The plaintiff cannot give evidence of the daughter's l62 SEDUCTION. .'■'i. ; good character, except in answer to evidence of general bad character given on the other side. Bauificld V. Massey, i Campbell 460. The mother suing as the mistress of the girl has a sufficient Common I^aw right to bring the action. Gould V. Rrskine, 20 O.K. 347. She must prove relationship of mistress and servant. Entncv v. Benneweis, 24 O.R. 407. It is necessary to allege and prove the relation- ship of father and daughter, her seduction by the defendant, that pregnancy resulted from such seduction, and that the defendant is the father of the child of which she is* so pregnant, or of which she has been delivered, as the case may be„ Evans V. Watt, 2 O.R. 166. The connection took place while the daughter resided at service with the defendant, and there was no evidence of any possible loss of service to the father, and there was neither birth of a child nor pregnane}- ; there is no right of action either at Common Law or under the statute. Not at Common Law, because, apart from any other reason, no loss of service was proved ; nor under the statute, because there was no pregnancy. Harrison v. Prentice, 16 C.L.T. 393. Proceedings may be continued against defendant's personal repre- sentatives. Laird V. Faircloih, 14 P.R. 253. DEFENCE. The defendant may show that he is not the father of the child. In mitigation of damages the defendant ma)' show the loose character of the girl. Evidence as to defendant's means is inadmissible. Ferguson v. Veitch, 45 U.C.R. 160., ASSAILT AND UATTERV. 163 In actions for seduction only if rape only be proved plaintiff must fail. Rc^s^. V. Doty, 25 O.K. 362. In an action for enticing" away and having' carnal knowledf^^e of the plaintiff's daughter, the plaintiff was allowed at the close of the case to set up as an alternative the enticing away of the dau^^^hter, and the having connectioti with her by force and against her will, and consequent loss of service. Cole V. Hubble, 26 O.K. 279. ACTION FOR ASSAULT AND BATTERY. An assault or battery must be an act done against the will of the party assaulted. The circumstances of time and place, when and where the assault was given, require different dam- ages. Initiation proceedings. Kinver v. Phcenix, 7 O.R. j^yy. Handcuffing. Gordon v. Denison, 22 A.R. 315. DEFENCE. There is no assault if the plaintiff consented to the defendant's act, or if the injury is the result entirely of a superior agency and is unavoidable, and the conduct of the defendant entirely without fault. The following are the main defences in this action. 1. That the plaintiff made the first assault, and the defendant's battery was in self-defence. 2. That the assault was committed in defence of possession. i )| ': .'>: 5 if 164 I'ALSE IMPKISONMENT. )|> j 3. Reasonable chastisement. 4. Process of law. 5. Conviction or certificate of dismissal under the provisions of Criminal Code relating' to Snmuiary Con- victions. ACTION FOR FALvSE IMPRISONMENT. The plaintiff must prove : 1. The fact of imprisonment. 2. That it was caused b\' the defendant. 3. The special damap^e, if any. In actions against Magistrates, Judges, etc., the rule is, that if they do any act l)e\ond the limit of their authority they thereby subject themselves to an action of trespass ; but if the act done be within the limit of tlieir authority, although it may be done through an erroneous or mistaken judgment, they are not thereby liable to such an action. Doswcll V. luipey, i B. & C. i6g. See Southwick v. Hare, 24 O.R. 528. Even where the}^ exceed their jurisdiction tht y are not liable unless they know or have the means of knowing the defect of jurisdiction. Actions against Justices of the Peace cannot be brought in the County Court if the objection is taken (Ontario Acts, 1896, c. 19, s. i), nor in a Division Court (R.S.O., 1887, c. 51, s. 69). See also R.S.O., 1887, c. ji, s. 15. R.S.O.. 1887, c. 7J, An Act to Protect Justices of the Peace and others from Vexatious Actions, provides as follows : Section i. — In an action for things done within the jurisdiction of a Justice of the Peace or a Police FALSE IMPRISONMENT. l6' Magistrate, malice and want of probable cause must be allej^'ed and proved. By section 20, if at the trial of the action the plaintiff does not prove : 1. That the action was broui,dit within six months next after the act complained of was committed ; 2. That notice of action in writing,' was f^iven one month before the action was commenced; 3. The cause of action stated in the notice ; Kelly V. Inivton, 26 O.K. 689. Scott v. Rcbiirn, 25 O.K. 450. 4. That the cause of action arose in the county or district the county town of which is named in the statement of claim as the place of trial ; 5. Where the plaintiff sues in a Countx', District or Division Court, that the cause of action arose within the county, district or united counties for which such Court is holden ; Then and in such case the plaintiff shall be non- suited, or a verdict ^iven for the defendant. By section 21, if the plaintiff is proved to have been actually j:,niilty of the offence of which he was convicted, or that he was liable by law to pay the sum he was ordered to pay, or that he has under- gone no greater punishment than the lei^al punish- ment, he is entitled only to three cents damages and no costs of action, even if he proves his cause of action in other respects. By section 23 costs are allowed as between so- licitor and client to a successful plaintiff or defendant in this action. By R.S.O., 1887, c. 16, s. 30, every bailiff or con- stable, and by section 29 every coroner or elisor, guilty of misconduct in execution process, is liable to the party aggrieved in damages. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I u. m ^ ill 1.8 1.25 1.4 1.6 ^ 6" ► V] m ^w dr '/A ^ '-^ .-> O ^h oS.. - ^ / /A Photographic Sciences Corporation 11 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 .*. %> L<9 fe 1 66 FALSE IMPRISONMENT. If a private person falsely and maliciously, and without any probable cause, puts the law in motion to cause the apprehension of another, it is properly the subject of an action for malicious prosecution. * DEFENCE.* The defendant may prove in justification that an offence for which a person might have been arrested without a warrant, and that there is reasonable and probable cause to suspect that the plaintiff commit- ted such an offence. A constable having reasonable cause to suspect that such an offence has been committed is justified in arresting the party suspected, though it afterwards appear that no such offence has been committed. It is otherwise in the case of misdemeanor without a warrant, except in the case of a breach of the peace committed in his presence, or in the presence of someone else who gives the person committing into custody, there being a danger of renewal ; but if there is no such danger, and the arrest is not the result of a continued pursuit, the arrest is unlawful. He is in no case justified in handcuffing a prisoner, unless it be necessary to prevent an escape, or an escape be attempted. Wright V. Court, 4 B. &. C. 596. By 24 Geo. II., c. 44, s. 8, no action shall be brought against any constable for anything done under a warrant unless commenced within six calen- dar months after the act committed. In an action for a false imprisonment the six *SeeTiile I., Part 2, Criminal Code. TRESPASS TO MiKSONAL PROPERTY. 167 months are to be reckoned exclusive of the day of the discharge of the pnsonor. Hardy v. Rylc, 9 B. & C. 603. By 21 Jac. I., c. 21, s. 3, an action for false im- prisonment must be brought within four }ears after such cause of action. By the last-mentioned statute, 21 Jac. I., c. 12, any action brought against any ** mayor or bailiff of city or town corporate, head borough, portreeve con- stable, tithing man, churchwarden or overseer of the poor," for any matter done by virtue of their office, such action must be brought in the county where the offence was committed. The defendant may plead the general issue and give his special matter in evidence. Evidence may be given in mitigation of damages where such evidence tends to show reasonable grounds of suspicion. Disclosure of information. Humphrey v. Archibald, 20 A. R. 267. ACTION FOR TRESPASS TO PERSONAL PROPERTY. This action includes every direct forcible injury or act disturbing the possession of goods without the consent of the owner, however slight or tem- porary the act may be." See Rogers v. Devitt, 25 O.R. 84. Any possession is sufficient as against the third person who has no title at all. Property is sufficient without possession, for the right of property draws to it the possession. Balme v. Hiition, 9 Bing. 471. mmi^mmmmmmm 1 68 TRESPASS TO LAND. Where a mortgagor of chattels is not to enter till default, he cannot bring trespass against the third party before such entry. Wheeler v. Montefiore, 2 Q.B. 133. In an action for taking goods under a legal pro- cess wrongfully issued, the plaintiff is entitled to at least nominal damages, or to such substantial damages as the jury think adequate, although special damage is alleged but not proved. Doss V. Doss, 14 L.T., N.S. 646. " ACTION FOR TRESPASS TO LAND. In order to maintain this action the plaintiff ought to have possession, actual or constructive. TopJiam V. Dent, 6 Bing. 516. Donovan v. Herbert, 4 O.R. 635. An interest in the soil, without an exclusive use of it, is sufficient to support trespass. On the other hand, exclusive possession, without property or interest in the soil, is also sufficient for this action. It mu >t appear that the plaintiff was in the actual and immediate possession of the locus in quo when the trespass was committed. There are some cases in which, by the doctrine of relation, the plaintiff is allowed to recover for trespass committed at a period when he was not in fact m possession ; thus the entry of an heir relates back to the time of the right of entry, so as to support an action against a wrongdoer for a trespass committed after the accrual of the right and before actual entry. Burnett v. Earl of Guildford, 11 Ex. 19. The owner of an equitable estate must sue in the name of his trustee. A damson v. A damson, 7 A.R. 592. MESNE PROFITSc 169 As to damages, the jury may consider not only the pecuniary damage sustained, but also the in- tention with which the act has been done, whether for insult or injury. Scars V. Lyons, 2 Stark. 318. DEFENCi:. Not p:uilty by statute. Denial of property or possession in plaintiff. De- fendant may set up title in himself or a third person, by whose command he entered. In this defence the issue is upon the defendant. Disclaimer and tender of amends. This is allowed by 21 Jac. I., c. 16, s. 5. Where the defendant sets up a justification, it is enough to prove a justification which covers the trespass, al- though it does not cover mere matters of aggravation. The defendant may set up also a right of way or a license. The license ma^' be either an express one or one implied from circumstances. ACTION FOR MESNE PROFITS. A plaintiff can now include a claim for mesne profits with an action for recovery of land. Hence the action for mesne profits seldom arises alone. It may occur, however, and is therefore set out. The plaintiff must prove : 1. His title. 2. His re-entry. 3. Thedefendant's liability byreason of possession. 4. The amount of damage. This action is an instance of the application of the doctrine of relation. I/O CONVERSION OF GOODS. As to damages, the jury are not confined to the mere rent or annual value of the premises, but may give such extra damage as they think fit as a com- pensation for plaintiff's trouble, etc. Other special damage may be recovered if laid as deterioration of the premises by waste or misman- agement by the defendant. As to claims for mesne profits in an action for dower, see Ryan v. Fish, 4 O.R. 335. Elliott V. Elliott, 20 O.K. 434. ACTION FOR CONVERSION OF GOODS. This action is equivalent to the old action of trover. To maintain the action there must be an act of con- version such as must amount to a deprivation of the possession to such an extent as to be inconsistent with the right of the owner and evidence an inten- tion to deprive him of that right. The old learnmg on the subject of "conversion " need not be imported into the system introduced by the Judicature Act, which provides for redress in case the plaintiff's goods are wrongfully detained, or in case he is wrongfully deprived of them. In all such cases the real question is whether there has been such an unauthorized dealing with the plain- tiff's property as has caused him damage ; and, if so, to what extent has he sustained damage. Stimson v. Block, 11 O.R. 96. See Ashfield v. Edgelly 21 O.R. 195. \Villia}ns\. Thomas, 25 O.R. 536. The above remarks do not preclude the applica- tion of the following rules : CONVERSION OF GOODS. 171 As to the evidence, the plaintiff must prove : 1. A general or special property in the goods, or, as against a wrongdoer, mere possession of them. 2. An actual or constructive possession or right of possession. 3. A wrongful conversion by the defendant. 4. The value or damages. The damages are the value of the thing converted. The evidence for the plaintiff will depend upon the nature of his particular title. Where there is both a general and a special owner, but the general owner has not transferred his right to the possession, he may still maintain this action. Thus, where he has delivered the goods to a carrier or other bailee, and so parted with the actual possession, he may still maintain trover for a conversion by a stranger ; for the owner retains the possession in law as against a wrongdoer, and the carrier or other bailee is only his servant. Gordon v. Harf^cr, 7 T.R. 42. With regard to the time at which the property passes at a sale of goods, where goods are sold and nothing is said as to the time of delivery or of pay- ment, and everything the seller has to do with them is complete, the property rests in the buyer, so as to subject him to the risk of any accident which may happen to the goods. Tarling v. Baxtsr, 6 B. cS: C. 360. The seller is liable to deliver them whenever de- manded upon payment of the price, but the buyer has no right to have possession of the goods till he pays the price. If the goods are sold upon credit, and nothing is agreed upon as to the time of deliver- ing the goods, the vendee is immediately entitled to the possession, and the right of possession and the y a 172 CONVKRSION OF GOODS. right of property vest at once in him ; but his right of possession is not absolute; it is liable to be de- feated if he becomes insolvent before he obtains possession. Bloxam v. Sanders, 4 B. & C. 948. In the case of the sale of unascertained goods, until both parties have assenter! to the appropriation of some particular goods to satisfy the contract, the property in them does not pass. Dixson V. Yates, 5 B. «S: Ad. 313. ' • But where an appropriation has been made by one party, in pursuance of an authority to make the elec- tion conferred by agreement, it becomes final and irrevocably binding on both parties. Aldridf^e v. Juhnsou, 7 E. & B. 885. In general, when goods are ordered to be made, so long as the order is not executed, but only in course of execution, no property passes to the person for whom they are to be made. Mucklow V. Mangles, i Taunt. 318. In order to pass the property there must in such cases be a completion and an acceptance, or at least an approval by the buyer. Atkinson v. Bell. 8 B. cS: C. 277. By a gift of goods the property does not pass un- less the gift be by deed or instrument of gift, or be executed by an actual delivery of the thing given to the donee. Irons V. Sinallpiece, 2 B. & A. 551. A grant of goods not in existence, or not belonging to the grantor at the time of executing the deed of grant, was void at law until the grantor ratified the grant bv some act done bv him with that view after he had acquired the property therein. Lunn v. Thornton, 1 C.B. 379. CONVERSION OF GOODS. ^7i In equity, however, a contract which enpjaged to transfer to a purchaser or mortgagee property of which the vendor or mortgagor was not possessed at the time transferred the beneficial interest im- mediately on the property being acquired by him. Holroyd\. Marshall, lo H.L.C. 191. On this point equity now rules under the Judica- ture Act. See the provisions contain<^u in chapter 37 Ontario Acts, 1894, Bills of Sale and Chattel Mortgaf^e Act, relating to mortgages of future acquired goods. By a fraudulent or illegal sale or transfer of goods no property passes. Wilkinson v. Kinf!;, 2 Camp. 335. But when a vendee obtains possession of a chattel with the intention by the vendor to transfer both the property and the possession, although the vendee has committed a false and fraudulent representation in order to effect the contract or obtain the posses- sion, the property vests in the vendee until the vendor has done some act to disaffirm the transaction. Kin<^sford v. Merry, 11 Ex. 577. By the Common Law an agent entrusted with goods cannot convey to a stranger a better right than he himself possesses. By R.S.O., 1887, c. 128, An Act respecting Con- tracts in Relation to Goods Entrusted to Agents, s. 5, any person may contract for the purchase of goods with any agent entrusted with the possession there- of, or to whom the same may be consigned, and may receive and pay for the same to such agent, and such contract and payment shall be binding upon the owner of the goods, notwithstanding the purchaser has notice that he is contracting only with an agent. tmmm^mmm 174 CONVLUSION OV GOODS. i Any agent entrusted with the possession of goods, or of the dociinients of title thereto, is deemed the owier thereof for the following purposes, 1. He can make a sale or contract, as just men- tioned. 2. To entitle the consignee of goods consigned by such agent to a lien on the goods for any advance, as if the agent were the owner of the goods. 3. To give validity to any pledge, lien, or security bona fide m^dc with such agent on the security of the goods, or for a continuing advance. 4. To make a contract binding U|. on the owner of the goods, although the person claiming lien knew that he was dealing with an agent. In all cases contracts must be bona fide. The con- viction of any agent for a contravention of the pro- visions of the Criminal Code respecting theft is not admissible in evidence in any action against him. An antecedent debt does not authorize a lien under the Act. If stolen goods are sold the property is divested out of the owner. By R.S.O., 1887, c. 69, a summary mode of recovery is provided of stolen property after trial. The property in a bank note, like that in cash, passes by delivery, and the party taking it bona fide and for value is entitled at Common Law to retain it as against the former owner from whom it has been stolen. Miller v. Race, 1 Burr. 452. The same rule applies to negotiable instruments. At Common Law the goods of an execution debtor are bound by a writ of execution from the time of teste; but by the Statute of Frauds, 29 Car. II. convi:rsion of goods. • 175 c. 3, s. 16, the goods are only bound from the time of the delivery of the writ to the sheriff. If the plaintiff wishes to claim by virtue of a special property, he must prove it. Where the action is brought against a mere wrongdoer, it will be sufficient for the plaintiff to show that he was in possession of the property. Jewries v. G.W. Ry. Cc, 5 E. & H. 802. The plaintiff must show that he has a right to the immediate possession of the goods in order to recover in this action. The reversioner or person entitled to the freehold of land? on lease may sue in this action for fixtures after severance from the demised land. The gist of the action is the wrongful conversion of the plaintiff's goods by the defendant. A con- version may be proved either by evidence of a direct act of conversion, or by showing a demand of the goods by the plaintiff and a refusal by the defendant to deliver them, which is evidence of one. jiurroHghes v. Payne, 5 H. & N. 296. An unlawful taking of goods out of the possession of the owner is itself a conversion, and not mere evidence of it. A conversion is described as where a man does an unauthorized act which deprives another of his property permanently or for an indefi- nite time. Hiort V. Bott, L.R. g Ex. 89. A person in the lawful possession of goods may be guilty of a conversion of them by dealing with them contrary to the orders of the owner. In order to constitute an actual conversion it is not necessary that the party should deal with the goods as his own. It is enough if it be a dealing for a third person adversely to the true owner. 176 CONVKKSION OF GOODS. A wrongful sale of goods is a conversion, and no demand is necessary. Edwards v. Hooper, 11 M. & W. 363. A demand of the goods by the plaintiff, and a refusal to deliver them by the defendant, he having the power to deliver them, are evidence of a con- version ; but, being only presumptive evidence of a conversion, it may be rebutted by evidence to the contrary. A refusal must be proved ; mere excuses for not delivering the goods will not be sufficient. Severin v. Kcppcll, 4 Esp. 156. In order to render a demand and refusal evidence of conversion, it must appear that at the time of the demand made the party had it in his power to deliver up or retain the article demanded. Smith v. yoii)i<^, I Camp. 441. A servant is liable in an action o( trover for con- version, though for his master's benefit. Stephens v. Ehvall, 4 M. eS: S. 259. Trover cannot in general be maintained by one joint tenant in common or parcener against the others. Jacobs V. Seii'ard, L.R. 5 H.L. 464. In actions for conversion the general rule as to damages is : the damciges shall be the value of the thing converted. Finch V. Blount, 7 C. &. P. 478. DEFENCE. A lien on the goods, either general or particular, and a right to the possession of them until the claim is satisfied, is a defence. A general lien may be proved either by evidence of an express agreement, or of the mode of dealing be- CONVERSION OF GOODS. ^n tween the parties, or of the general usage of other persons engaged in the same employment of such notoriety as that it may be fairly presumed to have been known to the owner of the goods. Rush/or th v. HadfieUi, 6 East 626. In general, where a person bestows his labor upon a particular chattel delivered to him in the course of his business, he has alien upon such chattel for the amount of his charge. By the Ontario Statutes 1896, c. j-^, s. 51, every mechanic or other person who has bestowed money or skill and materials on a chattel ma\' sell the ch •♦^tel if, after three months, payment is n^c made. The "«i dor of goods not sold upon ci dit has a lien for the price. This hen is not losi s > lon^as he keeps possession of the goods as vendor ^Mily, even though he has parted with a document transferring a title to the goods. Imperial Land v. Docks Co., 5 Chy. D. 195. In general a lien cannot arise at law unless the party claiming it has possession of the goods. Kinloch v. Craig, 3 T.R. 119. There may be an equitable lien without possession. Mackreth v. Syminons, 15 Ves. 329. Stoppage in transitu is in the nature of an equit- able lien. In general every unpaid vendor of goods has a right, on the insolvency of the vendee, to stop the goods if still on their way to the vendee. The most usual way in which the right of a vendor to stop goods in transitu is defeated is by assigning the bill of lading to a bona fide assignee.. Lickbarrow v. Mason, 2 T.R. 63. See R.S.O., 1887, c. 122, s. 5. Brassert v. McEwan, 10 O.R. 179. 178 DETENTION OF GOODvS. By Statute 21 Jac. I., c. 16, s. 3, this action must be brought within six years after the cause of action arose. ACTION FOR DETENTION OF GOODS. It is enough to show that the plaintiff is entitled to the possession of goods wrongfully held by the defendant. It is frequently brought in England to recover the title deeds of real estate. The damages are in general merely nominal ; but the jury find the value of the articles detained, and the Common Law judgment is that the plaintiff recover the articles or their value, together with the damages and costs found by the verdict, and costs of increase. DKFENCK.S. Leave and license. Illegality. Statute of Limitations. ACTION FOR THE RECOVERY OF LAND.* The plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's. The receipt of rents and profits of land stands on the same footing as actual possession. *The Consolidated Rules stale : — No defendant in an action for the recovery of land who !.•• in possession by himself or his tenant need plead his title, unless his de- fence depends on an equitable estate or right, or he claims relief upon any equitable ground against aii^ right or title asserted by the plaintifT. But, except in the casei hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession. And he may nevertheless rely upon any pround of defence which h« ran prove, except as hereinbefore mentioned. RECOVERY OF LAND. 179 D.* his Int's. s on Jvery of his de- Luitable le caset le is so Ihich be The plaintiff must show that he had a right of entry at the time mentioned in the writ. The plaintiff may, for the purpose of recovering mesne profits from an earlier day, claim the right of possession of the premises from such last-mentioned day. By the Lands Titles Act, R.S.O., 1(887, c. 116, s. 82, any certificate of charge is prima facie evidence of the matters therein contained. The plaintiff must formerly have proved a legal title; an equitable title is not sufficient. By the Judicature Act, the same relief is given for an equit- able title as formerly the Court of Chancery would have given, and the plaintiff need only prove an equit- able title. Under the provisions of the same Act, a mortgagor entitled to the possession of land may sue for the recovery thereof in his own name. In other cases, however, the person in whom the legal estate is vested must be a plaintiff in the action. It is, there- fore, still material to consider where it is vested. The general rule is, that in the case of passive trusts created by deed or will the use must cither be reduplicated, if limited on a freehold, or must be limited on a term of years; otherwise a legal estate passes. Where the estate limited to a use is a leasehold or chattel interest, the Statute of Uses is inoperative, and the use limited is a mere trust. Doe V. Passitighaw, 6 B. & C. 305. With regard to grants and devises in trust, where something is to be done by the trustees which makes it necessary for them to have the legal estate, such as the paymeni of the rents and profits to another's separate use, or of the debts of a testator, or to pay rates and taxes and keep the premises in repair, or the like, the legal estate is vested in them i8o RECOVERY OF LAND. and the beneficial devisee or grantee has only an equitable estate. Jeffreson v. Morton^ 2 Wms. Saund. 11 B. The defendant may in some cases disprove the legal title of the party through whom both he and the plaintiff claim ; thus, where the plaintiff claims under a con •^eyance from AB in 1818, and the defendant under a conveyance from AB in 1824, the defendant may show that in 1818 AB had no legal estate to convey. Oliver v. Powell, i Ad. & E. 531. But the defendant may estop himself from setting up such defence ; thus an agreement to purchase by a party in possession is such an acknowledgment of title in the vendor as, in the event of the purchase not being completed, to estop the purchaser from denying the title of the vendor. Doe d. Bord v. Burton, 16 Q.B. 807. Where the plaintiff is entitled with the defendant as joint tenant, tenant in common or co-parcener, he cannot maintain ejectment unless he has been actually ousted from his possession, or the defendant has done that which is equivalent to ousting. Culley V. Taylerson, 11 Ad. «& E. 1008. In an action by a landlord for the recovery of his land, the plaintiff in general need not prove his cwn title, but only the demise and its expiration, either by efflux of time, determination of will, demand of possession, notice to quit, disclaimer or forfeiture. If there is a demise by deed or in writing, it must jbe proved by the production of the original lease, unless admitted. If in the defendant's possession, notice to produce should be given. Where the lease is oral it may be proved by a RECOVERY OF LAND. iSl person who was present at the making, or by an admission of the defendant. A tenant at will cannot be ejected until after demand, which must be made before the date of the writ. Gallaway v. Herbert, 4 T.R. 680. When a tenancy at will is created, any act incon- sistent with a tenancy at will done by either party will amount to a determination of the will, and ren- der unnecessary a formal demand of possession. Evidence of a demise from year to year may, in the absence of other proof, be gathered from tiie pay- ment and receipt of yearly rent. This evidence may be rebutted, as by showing^ that the plaintiff received it on what was really a void lease. Whether an instrument is a lease or an aj^reernent for a lease depends on the intention of the parties, as may be gathered from the instrument. Notice to produce a notice to quit* is not neces- sary. Doe d. Fleming v. Sommerton, 7 Q.B. 58. Where the lessor proceeds on a forfeiture of the lease, he must prove the demise and the forfeiture. By R.S.O., 1887, c. 143, An Act respecting the Law 0/ Landlord and Tenant, a right of re-entry or forfeit- ure under any proviso or stipulation in a lease for a breach of any covenant or condition in a lease shall not be enforceable until after notice, which notice must be proved. This does not apply to non-pay- ment of rent (s-s. 7). Under same statute, sections 17 to 26, special provisions are made for the recovery of premises by landlords where a half year's rent is in arrear. Under I ! * Nor a notice of dishonor. Swain v. Lewis, « C. M. & R. 3t\. I82 RECOVERY OF LAND. i' ? f I these sections a landlord must be prepared with evi- dence of the right of re-entry ; a service of the writ or the affixing of a copy of it, etc.; that half a year's rent was in arrear, and that no sufficient distress was found on the premises. Where the plaintiff claimed as heir at law, he must at Common Law have proved that the ancestor from whom he claimed was actually seized of the land; or, if he claimed as heir to a remainderman, that his ancestor was the person in whom the re- mainder first vested by purchase, and also that he was heir to such ancestor. Under the Devolution of Estates Act, R.S.O., 1887, c. 108, all fee simple estates descend to the legal personal representatives of the deceased. By section 10, the personal representatives of a person dyingafter istof July, 1886, are to be deem- ed in law his heirs and assigns. Special provisions are made in the same statute as to descents before 1st of July, 1834; since ist of July, 1834 '> between the 1st of July, 1834, ^"<^ ^st of January, 1852 ; and since the 1st of January, 1852. The proof of heir- ship will vary according to. these dates. In ejectment by heir at law the most common De- fences are illegitimacy and a will. The defendant, by admitting plaintiff's pedigree and the dying seized, may, where he defends as devisee under a will, en- title himself to begin and reply. Goodtitlc d. Revett v. Braham, 4 T.R. 497. Where the plaintiff claims a freehold interest by a devise, he must prove : 1. The right of the testator to devise the land. 2. The regular execution of the will. 3. The death of the testator. 4. The determination of any prior estates. The defendant may show a disclaimer by the REPLEVIN, 183 plaintiff to take under any part of the will, or he may impeach the will by showing the want of due execution, etc. See Wills Act, R.S.O., 1887, c. rog. A devisee of a leasehold interest must prove : 1. The title of the devisor to the property, unless the defendant be estopped from disputing it. 2. The probate of the will. 3. The assent of the executor to the bequest. In ejectment by an executor or administrator, the plaintiff must prove : 1. The leasehold title of his testator. 2. The testator's death. 3. The probate or grant of administration. The death of the termor is proved by oral evidence, or by proof of the register of death or burial and identity of the party deceased. The statute applying to limitation of actions re- lating to real property is R.S.O., 1887, c. 11 r. Arrears of rent and recovery of premises. Denison v. Maitland, 21 O.R. 166. en- the ACTION OF REFLEVIN. The Replevin Act is R.S.O., 1887, c. 55. Where goods have been wrongfully distrained, the person complaining of such distress as unlawful may bring an action of replevin. Where goods have been otherwise wrongfully taken or retained, the owner, or any person capable of maintaining an action for damages therefor, may bring an action of replevin for the recovery of the goods. Will not lie against a poundkeeper. Ibbotson V. Henry, 8 O.R. 675. i84 REPLEVIN. The right to begin at the trial in replevin is the same as in other actions, although both parties are actors. Curtis V. Wheeler, M. & M. 493. Statute II Gee. II., c. ig, makes special provis- ions with regard to distress for rent. It does not apply to distress for damage feasant. To an avowry for rent the plaintiff might plead a tender of the rent ; to an avowry for damage feasant tender of amends. County Court action against Township Tax Collector. Howard v. Hevifigton, 20 A.R. 175. RARX V. CASES ON MISCELLANEOUS SUBJECTS ALPHABETICALLY ARRANGED. ACTUAL AND CONTINUED CHANGE OP POSSESSION. Hogaboom v. Graydon, 26 O.R. 298. Gillard v. Bollert, 24 O.R. 147 ; 22 A.R. 138. APTER ACQUIRED GOODS. Horsfall v. BoisseaUy 21 A.R. 663. AMENDMENT. The plaintiffs are not entitled to recover in this action ; but the facts are all before us, and would warrant the granting of rehef to the plaintiffs upon an amendment of their pleadings, and we proceed to treat the case as if the amendment had been made. Rogers v. Devitt, 25 O.R. at p. 90. APPEAL, Admission of New Evidence on. Biirfoot V. Dtimouliftj 2i O.R. 583. Wood V. Reesor, 22 A.R. 57. BICYCLE TROPHY. Ross V. Orr, 25 O.R. 595. CHOSE IN ACTION. Rights of assignor and assignee. Farquhar v. Toronto^ 26 O.R. 356. Verbal assignment. Shannon v. Toronto ^ 15 C.L.T, 39. CORROBORATION. (Cases also on p. 40) In action by or against executors. Radford v. Macdonald^ 18 A.R. 167, approves Parker v. Parker^ 32 C.P. 113. Staebler v. Zimmerman, 21 A.R. 266. !• i86 MISCELLANEOUS SUBJECTS. i Si Two defendants in same interest. Taylor v. Regis, 26 O.K. 483. To prove adultery by witness of loose character. Aldrich v. Aldrich, 21 O.R. 447. CLUB, Expulsion from. Guinane v. Sunnyside, 21 A.R. 49. COMPANY. Liability of promoter. Re Hess Manufacturing Co., 23 O.R. at p. 198. Power of company to carry on business after winding-up proceedings have commenced. Re Haggert Bros., 20 A.R. 597. Discretionary power of Court. Wakefield Co. v. Hamilton Co., 24 O.R. 107. Where the power to contract exists, a person contracting wi^h the company need not enquire whether the proper formalities have been complied with in a contract under its corporate seal. Sheppard v. Bonanza, 25 O.R. 305. DAMAGES. The right of the trial Judge to refer the question of damages is indisputable. Ratt/w. Booth, 16 P.R. 185. See 21 S.C.R. 635. DECLARATORY JUDGMENT. Bunnell v. Gordon, 20 O.R. 281. DEFECTIVE APPOINTMENT. Shore v. Shore, 21 O.R. 54. DOWER. Election by widow. Marriott v. McKay, 22 O.R. 320. EARTH PILLING. Not included under covenant to pay " for buildings and erections." Adamson v. Rogers, 22 A.R. 415, ' affirmed in SC, 16 C.L.T. 242. MISCKM.ANKOUS SUIJJI'XTS. 187 EASEMENT. EflTect of Interruption of User. McKay v. Bruce, 20 O.R. 709, EXPERT EVIDENCE. Proper Use of, by Judge. Wright V. Collier, 19 A.k. 298. FISHING AND SHOOTING RIGHTS. Beatty v. Davis, 20 O.R. 373. FIXTURES -Rights of Mortffaffee Discussed. Carson v. Simpson, 25 O.R. 385. Rogers v. Ontario Bank, 21 O.R. 416. A furnace cannot be removed by niortcjagor. Scottish American v. Sexton, 26 O.R. yy. FOREIGN LAW. Goods in Ontario at time of execution of chattel mortgage are subject to R.S.O., c. 125, although the parties are at the time domiciled in a foreign country. Marthinson v. Patterson, 20 O.R. 720. The Courts of this country will not indirectly en- force the penal laws of a foreign country by enter- taining an action founded on a judgment obtained in that foreign country in a penal action. Huntington v. Attrill, 18 A..R. 136. Signature of ante-nuptial contract by notaries sufficient under Statute of Frauds. Taillifer v. Taillifer, 21 O.R. 337. A creditor recovered judgment in Manitoba, and had by virtue of an Act of that province a lien on the lands of the judgment debtor there. As a judg- ment creditor he brought an action in Ontario) against the debtor's mortgagees to redeem lands in Manitoba as being subject to the lien. The Court dismissed the action as not being within its jurisdic- tion. N. Henderson v. Bank of Hamilton, 20 A.R. 646. An action v/ill not lie in Ontario by a judgment creditor to set aside as fraudulent a convevance I i r88 MISCELLANEOUS SUBJECTS. made by his debtor of lands situate in a foreign country when the creditor has no remedy there, although all the parties reside in Ontario. Burns v. Davidson, 21 O.R. 547. The validity of a bequest determined by law of testator's domicil which, in the absence of evidence to the contrary, was presumed to be the same as the law of Ontario. Graham v. Canandaigua, 24 O.R. 255. A foreign judgment is not a merger of the original cause of action which may be sued on in Ontario. Trevelyan v. Myers, 26 O.R. 430. Where all parties reside in Ontario an action can be maintained here to have a mortgagee of foreign land declared a trustee for the debtor of the moneys secured by the mortgage. Pavey v. Davidson, 16 C.L.T. 41. FRAUDULENT CONVEYANCE. Onus of proof under R.S.O., c. 124. Lawson v. McGeoch, 20 A.R. 464. Although the object with which a conveyance of property is placed in the name of another may be to protect it against the creditors of the actual pur- chaser, yet the property belongs to the purchaser. Gibbons v. Tomlinson, 21 O.R. 489. GROWING CROPS. Canada Permanent v. Todd, 22 A.R. 575. INDIAN LANDS. Dealings With— How Par Goveraed by Reglstrr Law of Ontaplo. Re Reed & Wilson, 23 O.R. 552. INTEREST, Ascertainment of. McCullough V. Clemow, 26 O.R. 467. Interest post diem. People's Loan v. Grant, 18 S.C.R. 262. MISCELLANEOUS SUBJECTS. 189 INTEREST. R.S.C., c. 127, s. 7. In re Parker, 24 O.K. 373. LINE FENCE, Legal Position for. Cook V. Tate, 26 O.R. 403. ■ISTAKE IN WILL, Pplnelple of Construction. Lasby v. Crewson, 21 O.R. 93. MORTMAIN. Impure personalty. Farewell v. Farewell, 22 O.R. 573. Provisions of R.S.O., c. 237. • Tyrrell v. Senior, 20 A.R. 156. NEW TRIAL. It is no ground for a new trial that the Judge refused to submit any particular question to the jury ; but if the Judge refuses to charge the jury in respect of the subject-matter of any question which counsel desire to have submitted, it may be made the subject of a motion for new trial for misdirection. Turner v. Burns, 24 O.R. 28. RIGHT OF ENTRY. Pupchase of. Assessment Act and 32 Hen. VIII., c. 9. Hyat V. Mills, 19 A.R. 329. SECONDARY EVIDENCE, Insufflclent attempt to procure written instrun-.ent. Porter v. Hale, 23 S.C.R. 265. TELEPHONE SERVICE. Electric Despatch v. Bell Telephone, 20 S.C.R. 83. TIMBER ON CROWN LANDS. Interference with rights of patentee. Lakefield Lumber Co. v. Shairp, 19 S.C.R. 657. TIMBER. Sale of As a general rule a contract for sale of standing timber which is not to be severed immediately is a sale of an interest in land. Handy v. Carruthcrs, 25 O.R. 279. • ■ J iJ;l mil 190 MISCELLANEOUS SUBJECTS. TRIAL. TREATING JURY Stewart v. Woulman, 26 O.K. 714. CHALLENGING JURY, Defendlner Separately Empey v. Curse alien, 24 O.K. 658. IMPROPER CONDUCT TOWARDS JURY Tiffany v. MeSee, 24 O.K. 551. VOLUNTARY CONVEYANCE, Action to set aside. Fraudulent intention is a material element in an action to set aside a conveyance as being voluntary and fraudulent a^'ainst creditors, and where it does not exist the action cannot succeed. Carrv. Corfieldy 20 O.K. 218. Not so under K.S.O., c. 124. Ilickerson v. Parriuf^^tou, 18 A.K. 635. A creditor for an amount under $40 cannot attack a conveyance of land as voluntary or fraudulent. Z ill tax V. Deans, 20 O.K. 539. It is only where the conveyance is made upon good consideration that it is necessary under the statute, in order to set it aside, to show the fraudulent in- tent of both parties to it. But where a conveyance is voluntary, it is only necessary to show the fraudu- lent intent of the maker of it. Oliver v. McLaughlin, 24 O.K. at p. 51. How the right of a person defrauded under the statutes of Elizabeth to elect to avoid a deed as fraudulent may be lost. Tennant v. Gallow, 25 O.K. at p. 61. The case of Masuret \. Stei&art, 22 O.K. 290, on doctrine of following the proceeds, distinguished. Family settlement supported. Randall V. Dopp, 22 O.R. ^22. WORKMAN'S LIEN. Roberts v. Bank 0/ Toronto, 21 A.R. 629. EVIDENCE ACT. SECTIONS SKLECTEH KKOM K.S.O., 1887, CAP. 61— EVIDENCE ACT. ^OMl'KTENCY OK \VH NKSSKS. 2. No person offered as a witness shall heieafter be excluded by reason of any alleged incapacity from crime or interest from giving evidence, according to the prac- tice of the Court, on the trial of any action, issue, matter or proceeding, in any Court of Ontario, or before any person having, by law or by consent of parties, authority to hear, receive, and examine evidence. K.S.O., 1877, c. 62, s. 2. _ 3. Every person so offered shall be admitted to give evidence notwithstanding that such person has an inter- est in the matter in question, or in the event of the trial of any issue, matter, question, or inquiry, or of the action or proceeding in which he is oflTered as a witness, and notwithstanding that such person has been previously convicted of any crime or offence. K.S.O., 1877, c. 62, s. 3- 4. On the trial of any action, issue, matter or proceed- ing in any Court in this Province, or before any person having, by law or by consent of parties, authority to hear, receive and examine evidence, the parties to the proceedings, and the persons in whose behalf the action or other proceeding is brought or instituted, or opposed or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, according to the practice of the Court, on behalf of themselves or of either or any of the parlies to the action or proceed- ing ; and the husbands and wives of such parties and persons shall, except as hereinafter excepted, be com- petent and compellable to give evidence, according to the practice of the Court, on behalf of either or any of Witnes.ses not 10 be incapocitateti by crime or in- terest. Such persons admitted to give evidence. Evidence of parties. Evidence ot husband and wife. .^ m 19^ EVIDENCE ACT. the parties to the action or proceeding, c. 62, s. 4. R.S.O., 1877, 6. Subject to section 9 of this Act, nothing herein con- Questions tend- tained shall render any person compellable to answer any mg to criminate question tendine to subject him to criminal proceedings need not be • 1 • . u- ^ .• c 1. n c /-^ answered. "' to subject hull to prosecution for any penalty. K.S.O., 1877, c. 62, s. 5. Section j was amended by Ontario Act, i8g6, ch. 18, sec. 6, and is printed as amended. Evidence in actions for breach of promise. Kvidence in proceedings in consequence of adultery. 6. The parties to an action for breach of promise of marriage shall be competent to give evidence in the action : Provided always that no plaintiff in an action for breach of promise of marriage shall recover a verdict un- less his or her testimony is corroborated by some other material evidence in support of the promise. 45 Vict., c. 10, s. 3. 7. The parties to a proceeding instituted in conse- quence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in the pro- ceeding : Provided that in such case the husband or wife, if competent only under and by virtue of this Act, shall not be liable to be asked or bound to answer any ques- tion tending to show that he or she has been guilty of adultery, unless he or she shall have already given evi- dence in the same proceeding in disproof of his or her alleged adultery. 45 Vict , c. 10, s. 4. Communications 8. No husband shall be compellable to disclose any made during communication made by his wife during the marriage, and no wife shall be compellable to disclose any com- munication made to her by her husband during the mar- riage. R.S.O., 1877, c. 62, s. 8. 9. On the trial of any proceeding, matter or question, under any Act of the Legislature of Ontario, or on the trial of any such proceeding, matter, or question before any Justice of the Peace, Mayor, Police Magistrate, in any matter cognizable by such Justice, Mayor or Police Magistrate, the party opposing or defending, or the wife or husband of the person opposing or defending, shall be competent and compellable to give evidence therein. R.S.O., 1877, c 62, s. 9. Section g was amended by Ontario Act, i8g2, ch. 14, and is printed as amended. marnage. Evidence in trials under Acts of Ontario. EVIDENCH ACl . 193 10. In any action or ptcceeding by or against the heirs, executors, adniinistialors or assigns of a deceased person, an opposite or interested party to the action shall not obtain a verdict, judgment, or decision therein, on his own evidence, in respect of any matter occurring l)efore the death of the deceased j.erson, unless such evidence is corroborated by some other material evidence. R.S.O., 1877, c. 62, s. 10. 11. In any action or proceeding by or against a per- son found by incjuisition to l)e of unsound mind, or being an inmate of a lunatic asylum, an opposite or interested party shall not obtain a verdict, judgment, or decision therein, on his own evidence, unless such evi- dence is corroborated by some other material evidence. k..S.O., 1877, c. 62, s. II. In actions hy or .Tjjainst repre- sentatives of a (iecea-sed person, the evidence of the opposite party must he corrohcjraieil. In actions by or against hinatics, etc., evidence of opposite party to he corrobo- rated. her tstion, )n the Ibefore lite, in IroUce ie wife lall be lerein. AFHRM.ATIONS. 12. In any case in which an oath, declaration, or (^ual;ei>., Meimo- affirmatitn is required by law, or upon any lawful""^'''' ' '"•^•'rs, occasion whatever on which the oath of any person is j^^*^i/,.'^.'|,' "'/('' f,',.^. by law ndmissi!)le, a Quaker, Mennonist, or Tunker, or tion. a member of the church known as the " Unitas Fratrum," or the United Brethren, sometimes called the Moravian Church, having first made the following declaration or affirmation, viz. : " I, A.B., do solemnly, sincerely, and trnlv litclare and affirm that I am one of the .Society called (Quakers, Mcnnonists, Tiinkevs, or Unitas Fratniin, or Mor.-ivians "' {as the case may /'<■) ; may make his affirmation or declaration in th^ form fol- lowing, that is ''J say : *' I, A. /J , do solemnly, sincerely, and truly afTirm and declare,'" etc. ; ■■ and such affirmation or declaration shall have the same force and etTect to all intents and purposes, in all Courts, and all other places, as an oath taken in the usual form. k.vS.O., 1877, c. 62, s. 12. 13. If a person callef an oath is, according to my religious belief, un- lawful ; and I do also solemnly, sincerely, and truly affirm and de- clare," etc. ; which solemn aflfirmation and declaration shall be of tht- same force and effect as if such person had taken an oatli in the usual form. R.S.O., 1877, c. 62, s. 13. 14. (i) If, in a Court of justice, a person called to f;ive evidence objects to take an oath, or is objected to as mcompetent to • . ^ . . 1 .u u l n •/• .l take an oath to incompetent to lake an oath, such person shall, if the be allowed to presiding Judge is sali-fied that the taking of an oath niake a declara- would have no binding eliect on his conscience, make "°"" the following promise, affirmation, and declaration : " I solemnly promise, affirm, and declare that tho evidence given by me to the Court shall be the truth, the whole truth, and nothing but the truth." And upon the person making such solemn affirmation and declaration his evidence shall be taken in the said proceeding. 45 \'ict. , c. 10, s. 5. Jnterp'station. (2) The words "Court of justice" and the words " presiding Judge" in this section shall be deemed to include any person having by law authority to administer an oath for the taking of evidence. 45 Vict., c. 10, s. 2. Persons author- ized to adminis- ter oaths may administer affirmation. 15. Kvery person authorized or required to administer an oath for any purpose may administer any affirmation or declaration as aforesaid. R.S.O., 1877, c. 62, s. 14. KXA.MINAIION OI-' WITNKSSES. |. 4 :'> Proof of contra- dictory written statements. 17. Upon the trial of any cause a witness may be cross-examined as to previous statements mide by him in wriiing, or reduced into writing, relative to the subject- matter of the cause, without the writing being shown to him ; but if it is intendetl to contradict the witness by the writing, his attention must, before such contr.ulictory proof can be given, be called to those parts of the writing which are to jje used for the purpose of so contradicting him ; and the Judge at any lime during the trial may recjuire the production of the writing for his insptction, and he may thereupon make such u.se of it for the pur- ENIDEXCli ACT. 195 ;d 10 s. 2. be lim in s\u)wn tess by lictory /riling lUcting \\ may ,ciit>n, le pur- poses of the trial as he thinks til. R.S.O., 1S77, c. 62, s, 24. 18. If a witness, upon cross-examination as to a former Proof of oontia- statement made by him relative to the subject-matter of <''>-'urv oral the cause, and inconsistent with his present testimony, '''^''=">'="'''- does not distinctly admit that he did make such state- ment, proof may be given that he did in fact u'.ake it ; but belore such proof can be given the circumstances of the supposed statement, sufHcient to designate the par- ticular occasion, must l)e mentioned to the witness, and he must be asked whether or not he did make such ilatement. R.S.O., 1877, c. 62, s. 25. 19. (l) A witness may be questioned as to whether Proof of pre- he has been convicted of any felony or misdemeanor, vious conviciion and upon being so questioned, if he either denies the I'je eiven If he'''^ fact or refuses to answer, the opposite party may prove denies it, etc. the conviction ; and a certificate containing the substance and effect only (omitting the formal p.^rt) of the indict- ment and conviction for the offence, purporting to be signed by the clerk of the Court or other officer having the custody of the records of the Court at which the off'.'nder was convicted, or by the deputy of the clerk or officer, shall, upon proof of the identify of the witness as such convict, be sufficient evidence of his conviction, without proof of the signature or of the official character of the person appearing to have signed the certificate. (2) For such certificate a fee of $1 anil no more may Fee. be demanded or taken. R.S.O., 1887, c. 62, s. 26. 20. A party producing a witness shall not be allowed How far a party to impeach his credit by general evidence of bad char- ["■''^' ''*^'^'^-"' ' , . 1 • -1 • • r '"^ own Witness, acter ; but in case the witness, in the opinion or the Judge, proves adverse, such party ma) contradict him by other evidence, or, by leave of the Judge, may prove that the witness made at other times a statement incon- si>tent with his present testimony ; but before such last nu'ntivjned prooi can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he did make such statement. K.S.O., 1877, c. 62, s. 27. PUBLIC AND O'lHER DOCUMENTS. 0/^cial Documents. 21. A copy of an Order in Council |Hirporting to be Ontario Orders made by the Lieutenant-Governor or Administrator ol in Coaiicil, etc. 196 EVIDENCE ACT. it ir i evifience. printed by the Oovemment of Ontario, and a copy of a departmenlal 'n'cT^^bl sh d*^^'' '^'^ Other regulation purportinp; to be made by the said with Staiuies, to Lieutenant-Govemor or Administrator in Council, or by h*t />rif Ma facie any other person or persons autliorized by law tra make evnience. %\\c\\ regulation, purporting to be printed by the Queen's Printer at Toronto, and published with the Statutes of Ontario, shall be received in any Court as/rma facie evidence of the tenor of the order or regulation. 48 Vict.,c. 13, s. 9. I) (million 22- A copy of an Order in Council purporting to be Orders in Coun- made by the Govemor-Oeneral of Canada, or his deputy, c!l etc., printed (,f other Chief lOxecutive Oftlcer or Administrator o( the by Queen sPnn- ,. . r r' i r i . . 1 terandpub'ished ^'"^^'''^"'*^"^ '^* Canada, or a copy of a departmental or with Statutes, to other regulation made by the said Governor-General he./»ima/acie or his deputy, or other Chief Executive Officer or Administrator of the Government of Canada, or by any other person or pers-ons authorized b) law to make such regulation, purporting to be printed by the Queen's Printer at Ottawa, and published with the Statutes of Canaila by the said Queen's Printer, shall be received in any Court as prima facie evidence of the tenor of the order or regula'.ion. 48 Vict., c. 13, s. 10. 23. In every case in which the original record could be received in evidence, a copy of any ofhcial or public document in this Province, [lurpurting to be certified under the hand of the proper ofticer, or person in whose custody such official or public document is placed, or a copy of a document, by-law, rule, regulation or proceed- ing, or a copy of any entry in any register or other book of any corporation, created by charter or statute in this Province, purporting to be certified under the seal of the corporation and the ^..iid of the presiding officer or secretary thereof, shall be receivable in evidence without proof of the seal of the corporation or of the signature or of the official character of the person or persons .nppear- ing to have signed the same, and without further proof thereof. R.S.O., 1877, c. 62, s. 28. Privilege in c.n!«« 24. Where documents are in the official possession, of official custody, or power of a member of the Executive Council, or the head of a Department of the Public Service of this Province, if the deputy head or other officer of the De- partment has the documents in his personal possession, and is called as a witness, he shall be entitled, acting herein by the direction and on behalf of such member of the Executive Ccuncil or head of the Department, to How piibh'i- or ofTioiiii docu- ments prosei!. documents. i l^VIDliiNCIi ACT. 197 object to produce the (locumenls un the ground thai they •re privilej^ed ; and such ohji-ciion may he taken by him in the aimc manner, and shall have the same etfcct, as if such nieml)er of the Executive Council or head of the De[)artuient were personally present and made the objec- tion. 49 Vict., c. 16, s. 16. 25- (l) Where a book or other document is of so puhlic a nature as to be admissible in evidence on its mere production from the projier custody, and no other statute exists which ren ai- nances in Courts of Criminal jurisdiction inOntario.} Sigtuitures of I iidi^es. 27. .Vll Courts, Judges, Justices, Masters, Clerks of Courts, Commissioners, judicially acting, and other udicial oflicers in this Province, shall take judicial notice of the signature of any of the Judges of the Supreme Court of Canadi, the (^ourt ot Appeal, the High Court of Justice, the County Courts of Ontario, Copies of puljlii. l)ooks or docu- ments aclrni>si- Ijle in evideiiue. Copies to lie lie- liveietl if re- quired. Copies of .\i ts of I..C., pridttril hy (Queen's Printer, Id he conclii>ive t-vidence thereof. Judici'il notice to be lalvtMi of si^nnturt-s of Judges, etc. I ;■ ii \\ \\ ,1 198 EVIDENCE ACT. i ir- Foreign JiuIr- inents, etc., now proved. Notarial Acts in Quebec admis- sible. How im- peached. Protests prifMa facie evidence. or the Superior or Circuit Courts in Quebec, where such signature is appended or attached to any decree, order, certificate, affidavit, or judicial or official document. R.S.O., 1877, c. 62, s. 30. Foreign Judgments. 28. Any judgment, decree, or ether judicial proceed- ing recovered, made, had or taken in the Supreme Court of Judicature in England or Ireland, or in any of the Superior Courts of Law, Ecpiity, or Bankruptcy in Scotland, or in any Court of Record in any of the Provinces of Canada, or in any British Colony or Pos- session, or in any Court of Record of the United States or of any State of the United States of America, may be proved in any action or proceeding in Ontario, in which proof of such judgment, decree, or judicial pro- ceeding may be necessary or required, by an exemplifi- cation of the same under the seal of the Court, with- out any proof of the authenticity of such seal or other proof whatever, in the .same manner as any judgment, decree, or similar judicial proceeding of the Iligh Court in Ontario may be proved by an exempHHcation thereof in any judicial or other proceeding in the said Court. R.S.O., 1877, c. 62, s. 31 ; 43 Vicl., c. 7, s. i. Notarial Documents. 29. A copy of a notarial act or instrument in writing made in Quebec, before a Notary, filed, enrolled, or enregistcred by such Notary, and certified by a Notary or Prothonotary to be a true copy of the original thereby certified to be in his possession as .'>uch Notary or Pro- thonotary, shall be receivable in evidence in any judicial or other proceeding in Ontario in the place and stead of the original, and shall have the same force and effect as the original would have if produced and proved. R.S.O., 1877, c. 62, s 32. 30. Such certified copy may be rebutted or .>et aside by proof that there is no such original, or that the copy is not a true copy of the original in some material par- ticular, or that the original is not an instrumeni of such nature as may, by the law of Quebec, be taken before a Notary, or be filed, enrolled, or enregisiered by a Notary in Quebec. R.S.O., 1877, c. 62, s. 33. Protests of Bills and Notes. 31. All protests of hills of exchant^e and promissory notes shall be received in all Court.s a.s prima fade [Js'.f EVIDENCE ACT. 199 Certificate of notaries to be pritim fat it evidence. evidence of the nllej^atii)n.s and facts therein contained. R.S.O., 1877, c. 62, s. 34. 32. Any note, memorandum, or certificate at any time made by one or more Notaries I'uhlic, either in Ontario or Quehec, in his own handwriting or signtd by him at the foot of or embodied in any j^rotesl, or in a regular r* gister of official acts kept by him, shall be prima facie evidence in Ontario of the fact of notice of non-acceptance or non-payment of a promissory note or bill of excharige having been sent or delivered, at the lime and in the manner statt-d in .^uch note, certificate, or memorandum. K.S.O., 1SS7, c. 62, s. 35. 33. The production of a protest on a promisscry note or i)ill of exchange, under the hand or seal of one or more Notaries Public, either in Ontario or Quebec, in any Court in Ontario, shall be prima facie evid'ence of the making of such protest. R. S.O., 1S77, c. 62, s. 36. Depositions. 37. Where an examination of a party or witness has been taken before a Judge or other officer or person ap- pointed to take the .same, copies of the examinations and depositions, certified under the hand of the Judge, officer, or other per.son taking the same, shall, without proof of the signature, be received and read in evidence, saving all just exceptions. 42 Vict., c. 15, s. 3, Proof 0/ Wills. 38. In any action where it is necessary to produce and In actions con- prove an original will in order to establish a devise or cerninR real .1 ... !• • • f a- . 1 . , estate, proliate, other testamentary disposition of or atlecting real estate, etc., u>hf"i the party intending to establish in proof tlie devi.se or /«<:/> evidence of other testamentary disposition may give notice to the ^''"' .^"^ • •''."*-''' opposite party ten days at least before the trial or other sa^ewhereirs proceeding in which the proof is intended to be adduced validitj- is put that he intends at the trial or other proct^eding to give in in issne. evidence, as proof of the devise or other testamentary disposition, the probate of the will or letters of adminis- tration with the will annexetl, or a copy thereof, stamped with the seal of the Surrogate Court granting the same, or with the seal of the Court of Chancery, where the ' probate or letteis of administration were granted by the former Court of Probate for Upper Canada ; and in every such case the probate or letters of administration or cojiy thereof, respectively stamped as aforesaid, shall be suffi- cient evidence of such will, and of ii> validity and con- Production of protest to be prima facie evi- dence that pro- test was made. Copies of depo:,i- tioiis Certified by persons taking the same admis- ■■ible in evidence. ! 200 EVIDEN'Cli ACT. ft iiV m.WL tents, nolwithstanilinsj the sanie may not have been proved in solemn form, or have been (jtherwi-.e tleclared Rev. Slat., c. 50. valid in a contentious cause or matter, under T/ie Sur- rotate Courts Act, unless the party receiving tlie notice •«- within four days after the receipt gives notice that he dis- putes the validity of the devise or other testamentary disposition. R.S.O., 1877, c. 62, s. 41. As to costs of pruviiiK a will in an actiun. 39. In every case in which in such action the original will is produced and proved, the Court or Judge before whom such evidence is given may direct by which of the parties the costs thereof shall be paid. K.S.O., 1877, c. 62, s. 42. Proof ill the case of will of real estate filed in Courts in otlier Hritish posses- .sions. 40- In case of the death of a person in any of Her Majesty's possessions out of Ontario, aft'.r having made a will sufiicient to pass real estate in Ontario, and where- by such estate has l)een devised, charged, or affected, and in case such will has been duly proved in any Court having the proof and issuing probate of wills in any of such possessions and remains fded in sych Court, then in case notice of the intention to u>e such probate or cer- tificate in the place of the original will is given to the o|)l)')site party in such proceecbng one month before the same is to be so used, tiie production of the probate of the wil^ or a certificate of the Juilge, Registrar or Clerk of such Court, that the original is filed and remains in the Court, and purports t^ p,i,„a facie in the form of Schedule C) to The Registry Act, and such evidence, original so certified shall be received as prima facie evi- dence of the reiiistration and of the due execution of the ,. „ e,^, , , ,-_,_&„ ,. Kev. btat. ,0.114. same. Il.S.C, 1077, c. iii, s. 56. 45. In any action where it would be necessary to pro- (j^rtified copies duce and prove an original instrument which has neen of registered in- registered in order to estal)lish such instrument ind the stniments may contents thereof, the party intendinir to prove such ^; "~:^'! '"'^'«')" . . , . ■ . • , 1 •. of originals after origmal instrument may give notice to the opposite „otice. parly, ten days, at least, before the triil or other pro- ceeding in which the said proof is intended to be adduced, that he intends at the trial f)r other proceeding to give in evidence, as proof of the original instrument, a ct)py thereof ceriifieil by the Registrar, under his hand and seal of office ; and in every such case the copy so certified shall be sufficient evidence of the original in- strument, and of its validity and contents, unless the party receiving the notice within four days after such Exception, receipt gives notice that he disputes the validity of the original instrument, in which case the costs of producing (jost.s in such and proving the original may be ordered by the Court or cases. Judge to be paid by any or either of the parties as may i)e deemed right. R.S.O., 1877, c. 62, s. 46. Copies of Other Written Instruments. 46. (i) In any action or proceeding in the oases of Copies of certain telegrams, letters, shipping bills, bills of lading, delivery '^'^^"'"'^."'^ .'""'>' 1 • . ► 1 .u •.. • \ ! be admittea as orders, receipts, accounts, and other written instruments ^^jj^^^.^ ^^ j,^^. used in business and other transactions, where it is neces- tain conditions. 202 EVIDENCE ACT. sary to prove the original document, the party intendinji; to prove the original may give notice to the opposite party, ten days at least before the trial or other proceed- ing in which the said proof is intended to he adduced, that he intends at Me trial or other proceeding to give in evidence, as proof of the contents, an instrument pur- porting to he a copy of the document. Proviso. (*) ''^"ch copy may then he inspected by the opposite party at some convenient time and place ; and in every such case the copy shall, without further proof, be , suthcient evidence of the contents of the original «lucu- ment, and be accepted and taken in lieu of tiie originni, unless the party receiving the notice within four liays after the time mentioned therein for such inspection gives notice that he intends to dispute the correctness or genuineness of the copy at the said trial or proceeding, and to require proof of the original ; and the Court or Judge before whom the cjuestion is raised may dirtct by which of the parties the costs which may thereupon attend any production or proof of the original document, according to the rules of evidence heretofore existing, shall be paid. R.S.O., 1877, c. 62, s. 48. SI i i Evidence in actions wherein Hiiy person resi- dent in Great Hritain is a party. Evidence in actions. Rev. Stat., c. 112, s. 1. Attesting wit- ness need not be called where none was re- quired by law. MISCKI.LANEOUS PROVISION?. 48. In an action or other proceeding relating to any debt or account (other than an action by or on behalf of Her Majesty), wherein a person residing in Great Britain is a parly, the evidence and examination of witnesses on behalf of either or any of the parties to the action or proceeding shall be the same, and given in the same manner, as in other actions or proceedings, according to the practice of the ("ourt. 45 Vict., c. lo, s. 6. 49. It shall not be necessary in an action to produce any evidence which, by section I of T/ie Act to amend the Law of Vt udor and Purchaser and to Simplify Titles, is dispensed with as between vendor and purchaser ; and the evidence therein declared to be sufficient as be- tween vendor and purchaser shall he prima facie suffi- cient for the purposes of such action. R.S.O. , 1877, c. 62, s. 49. 50. It shall not be necessary to prove by the attesting witness any instrument to the validity of which attesta- tion is not requisite ; and such instrument may be proved by admission or otherwise, as if there had been no attest- ing witness thereto. R.S.O., 1877, c. 62, s. 50. ACTS KELATING TO liVIDKNCE. 203 51. Comparison of a disputed writin}>; with any writing Comparison of proved to the satisfaction of the Judge to he genuine wiX"enuTnt""* shall be permitted to l)e made liy witnesses ; and such writings and the evidence of witnesses respecting the same may he suhmitleil to the Court and jury as evidence of the genuineness or otherwise of the writing in dispute. R.S.O., 1877, c. 62, s. 51. 52. Where a document is received in evidence by When i'l^tru- /■.,...., ^ .ri /•-' •• ments oner eel in Virtue of this Act, the Court, Judge, Commissioner "«■ evidence may other person acting or officiating judicially, who admits be impounded, the same, may direct the same to be impounded and kept in the custody of an ofricer of the Court, or other person, for such period and subject to such conditions as to the Court or person who admits the document seems meet, o. until further order touching the same has been made either by such Court or by the Court to which * the officer belongs, or by the person or persons who con- stituted such Court, or by some one of the Judges of the High Court or a County Court (as the case may be), on application made for that purpose. R.S.O., 1877, c. 62, s. 52. MISCELLANEOUS ONTARIO STATUTORY PROVISIONS RELATING TO EVIDENCE IN ADDITION TO EVIDENCE ACT. l8go, ch. 21. This Act is printed as amended by Ontario Act, 1892, ch. 14, sec. 2. 1. Where in any legal proceeding a registrar of deeds, j?^-'? j lOCU- a registrar of the High Court of Justice, a registrar of the ments to be Surrogate Court, a clerk of the peace or a clerk of a county filed in lieu cf court, produces upon a sulipncaa an original document, originals, such original document is not to be deposited in Court, except in the case provided for by section 2 of this Act, but if the instrument or a copy is needed for subsequent reference or use by reason of judgment being postjioned or for some other reason a copy of the document or of so much thereof as the judge deems necessary, certified under the hand of the officer producing the document or otherwise proved, shall be marked and filed as an ex- hibit in the place of the original where but for this Act the original should be so marked and filed ; and the regis- trar or clerk shall be entitled to receive in addition to 204 ACTS RELATING 1 IJ liVlULNCli. Oriffinal to be retained upon •rder of judge. Ceriific'l copies of in-* struments to be evidence. hi.s ordinar) fees, tl)e fees for any certified copy, the s.ime to l)e paid to him Ijcfore the said copy i.s deUvcred, marked or filed. 2. Where there is a (jviestion as to the j^enuineiiess of the instrument, and the judf^e deems it necessary for thit or any other reason th.it the original l);i retained and makes an order to that effect setlinj» forth the reason, such order shall l)j delivered to the rej^islrar or clerk, and the ex- hibit shall be retained, in Court accordingly, and marked and tiled as heretofore. 1890, ch. ;^2, sec. 10. ' 10. A cerlilied c )py attested by the master's seal of office of any instrument afTc-ctiiii; land which may be de- posited, lileil, kept, or rrj^istered in the office of the mas- ter of titles, shiU ha prima facie evidence of such instru- ment, and of the contents thereof; and no nnster of titles shall be recpiired to produce any instrument as aforesaid, unless where it is made to appc;ar to the judge directing the issue of a sul)|iteiia that s[)ecial reasons exist render- ing the production of the original necessary, and the said several reasons are to be stated in the order. 1895, ch. 12 (Judicature Act), sees. 127 and 129. 1 \\h li'1 I-'ees of profes- sional persons giving evidence and certain officers produc- ing documents. 127. Where upon the trial of any action or proceed- ing any person is subpcenaed as a witness, and gives evidence, who is entitled under any statute or rule of Court or other provision having the force of law in this Province to receive an increased v^itn.ess fee for evidence given by him in his professio:^,al cajiaiity, or as an expert, no greater fee shall be allowed '.o such witness on any taxation of costs than those pty.it.'.e to witnesses in other cases, unless the jadge or other officer before whom such action or other proceeding was tried shall certify that the evidence given by such witness was of an expert or pro- fessional character or was produced on account of the skill or professional knowledge possessed by such wit- ness; and no public official or other witness subpci^naed or called upon to produce before any Court or other tribunal any public or other document shall be entitled to more than ordinary witness fees, anything in the rules of Court or tariffs prescribed thereunder to the contrary notwithstanding. 57 Vict., c. 25, s. I. J ACTS Ki:LATIN(i T() ICVIDKNCK. ^05 129. In an action broujjht to recover dani.ijjes or Meiiicul exami- other compensation for or in reNi)ecl of bodily injury sus- ']""'" w"cr« lained l)y any person, i junjje ot the Court wliercin the f„r bodily action is pending, or any person who l)y consent of injury, parlies, or otherwise, has power to fix llie amount of such (iairiages or compensation, may order that the person in respect of whose injury, damajjes or componsaiion is souj^ht shall submit to be examined by a duly (jualitied medical practitioner who is not a witness on eilht" side, and may make such order respecting such exaniination and the costs thereof as he may think lit ; provided always Proviso, that the medical practitioner named in any such order shall be selected by the judge makii^g the order, and , provided, moreover, that such medical practitioner may afterwards be a wilness on the trial of any such action unless the judge before whom the action is tried shall otherwise direct. 54 Vict., c. 11, s. i. 1896, ch. 7. 1. Section 45 of The Public Lauds Art is amended by '^^^^ S'm:. adding thereto the (olluwing words : amelicled^' " And copies of licenses or other instruments or docu- Copies of " nients issued under the hand of the Commissioner or d,)cuments ,-xs "assistant Commissioner, or other officer or agent of the ^^'•''^"^*- " Department, by authority of this Act, or The Ad Kev. Stat., " respeclitif; Timber on Public Lands ^ which copies are '^^ '*'• "attested under the signature of the Commissioner or " assistant commissioner, and the official seal of the I)e- " partment, shall be received in any Court a^ frinia facie "evidence of the license, instrument or document, and " of the contents thereof." :r wmmm INDEX. fAC.E 1/-^ Abandonment of ship 23 Acceleration clause in lease ... 100 Acceptance of bill, how proved 16 Acceptor and drawer .' S and payee . . . .• 17 Accidental deterioration falls on vendee 5 Accord and satisfaction, defence of yo Account stated, action on 66 Acknowledgments under Statute of Limitations 79i 95 Acquittal, proof of, in malicious prosecution 140 Actual and continued change of possession 135 Award, action on 40 how proved 41 Adjustment of loss 24 Admissions in pleading 68 of debt 79 Adverse occupation 11 Advertising poster 153 Affreightment, contract of , 29 Agency business, solicitor liable for Agent, sale of lands acceptance of bills 43 2 17 warranty by 38 delivery to, in case of sale of goods 50 on sale of goods 173 Agister, liability of 114 Air, obstruction of 1 26 Allegations in pleading 68 Alteration in agreement as between creditor and surety 34 Alteration, defence of 70 INDEX. 207 rA(;K 117 ;o 1/ J 68 70 Amen;lMienl 185 Anci^.nt lights 128 Animals, nep;liiTent keeping of 1 18 Appeal, new evidence on 185 Apportionment of life policy 2S Appropriation of payments 81 Architect's certificate, absence of 55 Arrest, see Maliiions arrest 155 see False imprisonment 1 64 Assault and battery, action for 163 Assign, covenant not to lOi Assignee of lease, action against 98 Assignee of reversion, action by 96 Assignment over of reversion by plaintifT . . . 97 Assignment over of term by defendant 96 Attestation of deed 92 Auction, sales of land by 7 Auctioneer, agent fo.- sale of land 2 Authority, action on warranty of 39 IJankers, rights of depositors against 61 powers of, to bind principals 82 IJanking Act 30 Hank-note, property in 174 Kenehcial occupation in use and occupation 1 1 Benefit societies 29 Bicycle trophy 185 Bill of exchange 16 Bill of lading 30 Bond, action on 34, 106 Breach of promise of marriage . . 39 Brittle goods, liability of carriers for 64 Campbel'i's (Lord) Act 78, 126 Carriages, negligent driving of 117 Carriers, actions against .... 63 letter 66 passenger 66 Cattle guards 1 23 _± 208 i\i)i:x. I'AGF J!"' Cause of damafje must lie raHsans not f^roxinia ^^. 115 Caveat empfor 36 Challenging jury 190 Charter party 3° Chastisement, reasonable, defence of 164 Chattels. See Goods. Action for, as iliitingiiislied from work and l;\hor 55 Chattels. Se° IVar'-anly ?5 Cheque, effect of payment by 82 Choses in action, definition 1 14, 185 Civil process. See Malicious arrest. . 155 Club, expulsion from 186 Concealment, defence 25, 28 Conduct money not earneil 59 Consignor and consignee, rights as between, onshipmenl of goods. See Carrier 30, 1 7 1 Constable, action against 166 Constructive notice 83 Contractor, liability of, for nuisance 1 10 negligence of 1 10, 1 1 5 Contracts, simple, actions on . , 1 Contributory negligence . . . n6 Conversion of goods, action for 1 70 Copyright 133 Corporation, contiact by 55 deed, proof of 94 may maintain action for liljel 1 54 libel by 155 Correspondence, contract by (see Addenda) 2 Corroboration 1 85 Costs in vendor's suit relating to purchase of land 5 Counterclaim 85 Counterpart, as evidence 94 Covenants, actions on limitation of time 77 when maintainable 00 running with land 99 . relating to land, actions t)n 100 ,1 INDKX. JOy Covenants, not to assign or sub-let without leave to insure '^•»»t:.. ,oj for good husbandry '°2 , as to trade on premises. ' '^^ for title '02 to repair ' 03 to yield up premises . '°3 Cr')ps. See Growing crops. ... '^4 Currency, Act respecting '*^^ Custom, no tenant right by. ' " . . ^^ mercantile '5 Damages on breach of conVract" for sale of 'land " m action for use and occupation.., . "" "^ in action for waste '- action for affreightment... '^ on breach of warranty,. 3' 32 on breach of promise of marriage '''^ for not accepting goods ^9 for not delivering goods ^^' on loss or injury to goods . . ....'. *^ too remote 65 in action on covenant not to assign "^' to repair 'oi against incumbrances . '"^ in penal action " '^4 in nuisance on drainage improvements .... in negligence of railway companies to goods from negligence disturbance of support of land ' ^'^ from infringement of patent. '^^ from deceit '36 in malicious prosecution ' ^'^ in defamation '4' for wrongful distres.s . _ '49 for selling goods distrained '^6 illegal distress '5^ • '59 [07 "5 120 - ? 2IO INDEX. ■J '■4 T* - lAGK Damages, seduction 162 trespass to personal property 168 trespass to land 169 mesne profits 1 70 conversion of goods 176 right to refer question of 186 Daughter, see Se.luction 160 Debt, action for, by lessor 99 Deceit and misrepresentaf .11 138 Declaratory judgment 186 Dedication of highway 129 Deed, mode of proving 92 Defamation, action for 141 Defective appointment 186 Defences in actions on simple contracts 68 Delivery of goods, proof of 33> 50 Delivery under contract of affreightment 32 Demurrage. See AJ^reightmeni 31 Demurrage days 31 Deposit, what required to recover 8 Depositor in bank, rights of 61 Destruction of premises by fire, when liability continues.. ...... 1 1 Detention of goods, action for 178 Deviation, when justifiable 32 Devolution of Estates Act 182 Disabilities under Statutes of Limitation 78 Disclaimer 98 Disclosure of information 167 Dishonor, notice of 19 Dismissal, wrongful 45 Distress, excessive 155 wrongful 155 irregular 157 illegal 158 Disturbance, tortious by stranger 104 of support of land 127 of right of way 1 28 INDEX. 211 Disturbance of watercourse '^'"'^ Dojr killing sheep ^^\ Dominant and servient tenements "^ Double rent, action for '-^^ Double value, tenant holding over. . '°^ Dower, election of '°5 Drawer and acceptor '^^ Driving, negligent, action for ^^ Duress, defence of "7 money paid under . . ''' " Earth filling " * ' ^° Easement.. '^^ extinction!'!"^!;;;;. ;;;;;;;■■' •• ^'' '^'^^ '32 interruption '-^^ Employers' liability for negligence; ; ;;;;;; '^^ Employers' liability policies ,[[[ '^^ Endorsement. See Indorsement. ^^ Escrow, deed may be alleged to be Eviction, defence of ^5 Evidence Act ^^ Excessive distress '^° Execution, writ of, binds"go;ds f;om time of delivery tosheriff:, Executors may maintain action for use and occupation Expert evidence, use of Extortion Extras, liability for ^° factories Act 55. 5^ Factors' Acts ' ^5 ** Fair comment " . '73 False pretences, goods obtained by ....;;;; ; "'"^ False imprisonment, action for ' '''^ Fellow-seivants, negligence of '^'^ 125 123 II 155 174 12 187 Fences. ^Qe IJue fences Fire, dest^ruction of premises by, eff^ct'on liability'of ;jnant' . . J' ire, negligent keeping of P^ire insurance, statutes as to "^ rights of mortgagor and mortgagee .... '. . ; '. \ \ ..,, \ H wm 212 INDEX. •a(;k ' r Fire insurance, a contract of indemnity 27 Fishing and shooting. . 187 Fixtures 187 Foreign law 187 Forests, destruction of, by fire 1 19, 123 Forfeiture of lease 181 Forged instrument, money paid on 59 Fox'a Libel Act 144 Fraud, defence of . . 71 action for deceit 1 38 Frauds, Statute of, def^.n '* of 72 Fraudulent convey jncr . 188 Fraudulent misrepresentation, deceit 138 Frog spaces 124 Furnace 187 Furnished house, unfit for habitation 13 Future-acquired property 173 General average 30 Gift, vesting of propeity in case of 172 Good husbandry, covenant for 15 Goods, warranty on sale of 35 not accepting, action for 46 bargained and sold, action for 47 not delivered, action for . 48 sold and delivered 49 loss or injury to 65 detention of 178 accepted in satisfaction of debt 81 conversion of*. 170 Growing crops -. 188 Guarantee, action on }} See Bond 106 Highway, nuisance on no duty of owner of property abutting on . 1 13 out of repair 1 10, 1 14 dedication of 129 obstruction on 1 10 INDEX. ^13 •ACE 27 187 187 181 59 144 71 138 72 188 138 124 187 13 173 30 172 15 35 46 47 48 49 65 178 81 170 188 3i 106 no 113 , 114 129 no See Douhle value 12, 1 05 yi 61, 114 • '3 28 • 52 . 89 . 60 . 15S 72 1S2 ^o 164 104 106 188 »7, 19 Holding over by tenant, effect of. Horse, warranty of Hotel-keeper, action against House, unfitness of for habitation, when a defence Husband and wife, apportionment of life policy implied agency taking away wife Illegal contracts, money paid under Illegal distress Illegality, defence of Illegitimacy, defence of . J!^ Immodesty, a defence in actions on breach of prom ise of marriage Imprisonment, false Incumbrances, covenant against Indemnity. See Guarantee Indian lands Indorsement, how proved Indorsee and indorser Infancy, defence of '^ Infant, liability of father for goods cold to . . . . . . . . . . . ..... -^t Injury to person, action for services ^~ Innkeepers, actions against /* Innuendo ' Insanity, defence of '^^ Instalments, price of land payable by Insurance. See Marine, Fire, Life. Insurance money received by landlord Insure, covenant to, action for breach of Interest, cases on Interest in marine policies in fire policies on account of work and materials payable by purchaser on purchase of land Intoxication, defence of action against innkeeper J " Invitation," obligation arising from . . I.O.U., effect of ^'^ 61 75 6 II 102 188, 189 22 • 27 • 56 214 INDEX. FAOK Irregular distress .... 157 Joint covenants, actions on 90 Joint stock companies, nature of 51 liability for shares in 78 note signed by "resident 20 Joint tenant cannot niaimain trover 176 or ejectment unless ousted , . . 180 Jury, conduct towards 190 Justice of the Peace, action against 164 Justification, effect of pleading 154 Keeping of animals, negligent 118 Keeping of fire or inflammable matter .... 119 Land, sale of, action on i negligent use of .... 1 13, 1 19 trespass to 168 Landlord. See Distress 155 Lay days ■ 31 Lease, proof of 94, 180 action on 96 action for rent under 99 forfeiture of 181 Lectures, copyright in 134 Letter carriers, liability of 66 Liability of common carriers for passengers' luggage 67 Libel. See Defamation 141 Libel Amendment Act, 1894 151 Lien, shipowner has 31 innkeeper 62 defence of 1 76 on goods 176 on chattels 177 Life insurance, statutes relating to . 27 apportionment of policy 28 Light, obstruction of 128 Limitations, ^qq Statute of Limitations. defence of 76 Line fence 189 INDiiX. -215 I'ACiB Locomotive, damage by sparks from 119 Lodgers' goods 1 60 Lord Campbell's Act, not affected by Railway Act 78 provisions of 1 26 Lord's Day Act. See Sunday 73 Loss. See Insurance 23 Luggage, See Carrier 67 Magistrates, actions against 164 Maintenance, a defence 73 Malice in libel 14S, 154 Malicious arrest 155 Malicious prosecution, action for 139 Marine insurance 21 policies 24 Marriage, promise of, action on 39 Master and servant, negligence 117,125 Materials, contract for, and not within Statute of Frauds 55 Medical practitioners, actions by 44 infancy does not prevent Statute of Limitations from running 75 Mercantile agency, no special privilege ... 154 Merger, defence of 80 Mesne profits, action for . . 169 Mills and mill dams 1 32 Misconduct of arbitrators 41 Misdescription of land, effect of, on contract 8 Misfeasance and nonfeasance 114 Misrepresentation and deceit 138 Mistake of fact, mistake of law, money paid under 59 Mistake in will 189 Mitigation of damages, defamation 150 seduction 1 62 false imprisonment 167 Money had and received, action for 58 Money lent, action for 58 Money paid, action for 57 Mortgagees may recover on marine policies 24 2l6 INDl-:X. rA(.E Mortgages, duties of, under fire policies 27 Mortgagor, duties of fire insurance companies as to 26 Mortmain 1 89 Municipalities, liability of ill, 114, 130 for libel 155 Navigation of ships, negligent 118 necessaries. See Infamy 74 Negligence, action for 112 of fellow servants 125 of master and servant 117,125 of railway companies 63, 119 Negligent driving of carriages 117 keeping of animals 118 keeping of fire or inflammable matter 119 navigation of ships 118 use of land 119 Newspapers, See Defamation 151 New trial 189 No damages, finding of 1 53 Not accepting goods, action for 46 Not delivering goods, action for 48 " Not guilty by statute," effect of defence of 69, 107 Not to assign or sublet without leave, covenant loi Notice of action, defamation 154 Notice of dishonor 19 Notice, purchase without 82 constructive 83 Nuisance, action for 108 Obstruction of light or air, action for .... 128 Obstruction to highway no See Disturbance of way ^ and also hii^hway 128 Partners, sale of land by one 6 liability of, on bills \6 indorsement to firm 18 goods delivered to one of firm 51 release by one ! 84 hiring by 45 INDEX. 217 Partners, slander of 153 Pari performance of contract for sale of land 3 Passengers. See Carriers 63 Passenger carriers, liability of 66 Passengers' luggage, liability for 66 Patent rights, notes for 20 infringement of 1 36 Pawnbrokers, action against 62 Payee and acceptor or maker 16 Payment, defence of 80 under Statute of Limitations 79 Penalty, action for 107 Personal action now survives 113 Personal property, trespass to 167 Plans, showing roads 130 Pleading, rules for 68 Pledge of goods by agent 1 74 Policy of insurance. See Marine^ Fire, Life, Possession, covenant to yield up 104 Premium note, effect of non-payment of 27 Premium, recovery of, on marine policy 25 Presentment, proof of 17, 18, 19 Principal and agent. See Agent. Principal and surety 34, 57 Privileged communications 143, '47 Probable cause. See Malicious prosecution 139 Malicious arrest 155 Promise of marriage, action on 39 Proof of deed . 92 Promissory notes, actions on 16 Promoter of company 186 Property in goods when it passes on sale 47 Prosecute, agreement not to, illegal 73 Proximate cause 32,115 , Publication in libel 145 Purchase without notice, defence of 82, 106 Quality, warranty of 36 Quiet enjoyment, covenant for 104 2l8 INDEX. I'AfiE Railway Act 63, 64, 78, 121, 122 Railway companies, liability of, as carriers 6j, 1 19 negligence of 119 Railway tickets 63, 66, 123 Rates and taxes, covenant to pay 1 03 Readiness to pay, defence of 99 Real property, sale of i Reasonable and probable cause. 140, 155 Release, defence of .... 83 Recovery of land, action for 1 7S Re-entry by landlord loi Refusal by witness to answer 153 Relation, doctrine of 169 Rent, action for. See Use and occupation ' ' . 99 Repair, covenant to, breach of 103 Replevin, action of 1 83 Rescission, defence of 3> 84 Respondeat superior 116, 1 63 Restraint of trade, contracts in 74 Reversion, action by assignee of . 96 Right of entry 1 89 Right of way. . See Way 128 Riparian proprietor 131 Road, iee Highway Sale of goods, warranty on 35, 46 goods sold, action respecting 46 wrongful 1 58 see Conversion of goods 171 Sample, sale by 46 Scienter 1 18 Search for document, insufificient 1 89 secondary evidence 189 Seduction, action for 160 Set-off, defence of 85 Sheep, killing of, by dog 118 Sheriff, when an agent for saL* of land 2 Shipowner, actions by and against 39 Ships, negligent navigation of 118 INDEX. 2 19 i-a(;r 46 46 [71 89 189 60 «5 18 2 39 18 Slander. See Defamation 14 1 Slander Act, 1889 1 50 Solicitor, action against, for negligence 43, 114 collecting interest on mortgage .... 61 Solictor's bill, action on 41 Special damage. See Nuisance . . 109 Defamation 144, 149 Special property. See Conversion of goo J s 171 Specialties, actions on 90 Specific performance 3 •• State of nature," as used in Statute of Limitations 77 Statute of Frauds. See Frauds, Statute of 2, 34, 38, 48 Statute of Limitations 13, 14. 43 Statutory fire conditions 26 Si< ien goods 174 Stoppage in transitu 177 Street, see Highway. Street crossing 115 Street railway 1 24 Subsequent acknowledgment under Statute of Limitations 79, 95 Sunday included in demurrage days 31 Act to prevent profanation of 73 Support of land, disturbance of 127 Surrender of lease 97 Surety, communication to 34 rights of 34, 57 Taxes, covenant to pay 103 Telephone service 189 Tenancy at will 181 Tenant for life, rights of, as to waste 14 Tender, defence of 87 Tickets, railway 63, 66, 1 23 Timber, cutting of, when waste 15 floating down streams 133 sale of 1 89 Time fixed for completion of sale of land, effect of 5 Title to goods, no implied warranty 35 Title to land 4 I 220 INDEX. J 'A II t: ! h,i , PAGE Title of land, covenant for iO;5 Trade mark 1 34 Trade on premises, covenant as to 102 Treating jury i go Trespass to land 1 68 Trespass to personal property >; Uberrima fidei Undisclosed principal ,1 Undue influence, defence of . S9 Usage, evidence of mercantile 53 Use and occupation 1 1 Use of land, negligent 113, 119 Value of goods, must be proved, when 52 Vendor and Purchaser Act 4 Vis major 116 Volenti ttonfit injuria 115 Voluntary deed 91, 190 Wagering policies forbidden . . 2 r Wages, action for 45 Warranty, action on ^5 Warranty of title to goods . . ^5 of quality 36 Waste, bad husbandry, etc 13 Watercourse, disturbance of 131 Water lot, passage over 132 Way. See Highway Way, disturbance of 128 Wife, power of, to pledge husband's credit 52 Will, title under 182 Witness, calling of, to prove deed 93 Wives and children, insurances for 27 Work and materials, action for 54 Worknian's coi.ipensation for injuries 1 73 Workman's lien 190 Wrongful act, default or neglect causing death 126 Wrongful dismissal, action for 45 Wrongful distress, action for 155 Wrongs independent of contracts, .ictions on loS 1 I [ E