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Las diagrammes auivants lliustrant la mAthode. 1 2 3 1 2 3 4 5 6 1 li »'.VISJ»H,'J^» THE PROPERTY OF THE LAW SOCIETY DIGEST OF REPORTS or OASES DECBDED IN THE COURT OP CHANCERY, IN THE COURT OF ERROR AND APPEAL, ON APPEAL FROM THE COURT OF CHANCERY, IN CHANCERY CHAMBERS, AND IN THE MASTER'S OFFICE. raOLDDINO ALL OASES BXFOBTED IN VOLUMES 14, 16, 16, 17 AND 18 OF grant's BEFOBTS ; AND 2, 3 AND 4 CHANCEBT OHAMBBBS BEP0BT8 ; AND, WITH THE FOBHEB DIGEST, ALL OASES DP TO 1st Jult, 1872. \mm A SUPPLEMENT TO "COOPER'S EQUITY DIGEST" (1868) Bt C. W. COOPER, Esq., BAKRUTU, LATH HBFORTBR IN CBA5CXRT OHAHUBS. Vol. II. JULY, 1873. PUBLISHED BY R. CARSWELL, 28 ADELAIDE ST. EAST. 1873. Hundred and Seventy-three, by C. W. Coor», B-q., u. Agriculture. JUN 181962 ,/ Huirmt, Bixi * Co., Printen. Kleotrotyperi and Bookblndere, Toronto. NOTE. This volume contains all cases reported in Volumes 14, 15, 16, 17 and 18, Grant's, and 2, 3 and 4, Chancery Chamber Reports. It includes the cases given in the Appendix to the former Digest, and if bound together, the Appendix should be left out. Occasionally a reference will be found to earlier cases than those in the above Reports — this is occasioned by including the Appendix of the former Digest. There will be found throughout this volume certain headings which strictly ought to be classed under the head of Practice, but if all Practice points had been classed under that head, it would have occupied an undue space; they have, therefore, been distributed under headings which are, in fact, but sub- headings. The reference in some instances to cases in Vol. 4, Cham. Reports, does not give the page, that volume not having been complete in print when the references were made. For decisions overruled, omitted cases, &;c., see Addenda. LIST OF SUBJECTS. Pi«e. Abatement 1 Absent Defendant 1 Absolute Deed 1 Abstract of Title 1 Acceptance of Title 1 A ccommodation Indorser. 2 Account 2 Accountant 2 Acquiescence 2 Acts 2 AdminiRtration 2 Administration Suits 3 Administrator, 3 Admission 10 Adoption 10 Adultery 10 Advances to and by Agents 10 Advancement 10 Adverse Possession 11 Advertisements 11 Affidavits 11 Agency and Ap:ent 14 After Acquired Estate 14 Agreement 16 Alimony and Alimony Suits 16 Allegation 18 Alteration in Deed 19 Amending and Amendment 19 Ancient Deed 25 Annual Profits 25 Annuity 25 Answer and Answering 26 Antecedent Debt 27 Appealing 28 Appealed Cases... 35 Appointment under Power 36 Appropriation of Payments 36 Arbitrator and Arbitration 36 Arrest 38 Assets 38 Assignment 38 Attachment 41 Attorney and Client ... 42 Attorney-General 43 Award 43 Bankrupt 43 Bank Stock 43 Bequest 43 Biddings 43 Bill 44 Bond 44 Breach of Injunction 44 Building Societies 44 Psfte. Canal 4» Capital 45 Carriage of Decree 45 Certificate 46 Chambers 46 Chancery 46 Changing Reference 46 Changing Solicitor 47 Changing Venue 47 Charge for Improvements 48 Charitable Gifts 48 Charitable Uses 48 Chattel Mortgage 49 Child 49 Choses in Action 50 Church Property fiO Clearing and Cutting Timber. .... 50 Clerical Error 60 Commission 60 Compensation 51 Conditions of Sale 51 Confirmation 51 Confirming Sale 51 Conflicting Evidence 51 Consent 51 Consideration 52 Construction 52 Constructive Notice .... 52 Contempt 52 Contestants 53 Contract 53 Contribution 54 Conveyance 56 Corporation and Corporate SeaL 57 Corpus f8 County Court 58 County Treasurer 58 Court E8 Costs 69 Covenant €8 Creditor €9 Crown and Crown Lands €9 Crown Patent 70 Cross-examining a Defendant. ... 72 Co-Sureties 72 Cutting Timber and Clearing .... 72 Custody of ChUd 72 Damages 72 Decisions Appealed, Affirmed, Overruled or Restricted 73 Decree 77 Dedication 79 Deed 80 LIST OF SUBJECTS. Pacr«- Defective Abstract M Defective Suit 86 Deficiency 85 Delay 85 Delivery of PoBseBsion 86 Demnn er and Demurring 87 Deposit Keceipt 88 Depositions 89 Deputy Registrars 89 Detention of Personal Property. 89 D-'stroyed Bond 89 Devise 89 Discharge 90 Discovery 91 Dismissing Bill 91 Distillery 9« Distress under Mortgage 96 Distribution 96 Distribution of Deposit 96 Division Court 96 Division of Losses 96 Dormant Equities 96 Double Liability of Shareholders 97 Double Maintenance 97 Double Proof 9! Double Evidence 97 Dower 97 Fraud, and therein of Fraudn lent Conveyances Frauds, Statute of Further Directions Garnishee General Orders General Prayer Gift Good Faith Good Friday Good WiU, Sale of...... Greenhouse and Machinery. Guardian Hearing Heirs Husband and Wife , Easement 102 Election 103 Election Law 103 Endorsing Papers 104 Entail Barring 105 Entitling Papers 105 Equitable Assignment 105 Equitable Estates 105 Equitoble Dower lOd Equitable Plea 106 Equity of Redemption 106 Esplanade Acts 106 Estate Tail 107 Estoppel 107 Evidence 107 Examination Ill Execution 113 Execution Creditor 114 Executors 114 Executory Devise Over 119 Exchange 119 Exoneration 120 Ex-parte Motions 120 Extending Time for Appealing.. 120 Extending Time for Payment of Mortgage Money 120 Family Arrangement 122 Father andSon 122 Ferry 122 Fmal Order 122 Fi. Fa 123 Fire Insurance 123 Fixtures 123 Fluctuation in value of Land.... 124 Foreclosure, and Opening Fore- closure 124 Foreign Administration 127 Foreign Life Insurance Co 127 Idiot Immediate Sale Imprisonment for Debt Improvements Inade(]|uacy of Consideration Inception of Execution. Incorporated Company Incumbrances, Covenant against Indemnity Indian Lands Indorsers Infants Information Injunction Insolvency, Insolvent, Insolvent Acts Insufficient Description Insurance Interest Interim Alimony International Law..... Interpleader Issue Irregularity Joint Tenant Judges... Judgment and Judgment Credi- tors Judicial Opinion Jurisdiction Laches Legacies Charges on Corpus... Legatees Landlord and Tenant Lapse of Time Leatie Leave Legacies Letters of Administration Letters Rogatorj' Lien Limitations, Statute of Lis Pendens Local Masters and Registrars. Loan of Funds in CouA Lower Scale of Costs Psge. . 127 , 132 , 132 , 132 , 132 133 , 133 134 134 134 135 136 135 136 136 138 138 138 138 138 139 139 139 139 139 139 140 145 146 164 159 159 162 163 163 164 166 166 166 166 167 168 169 169 169 169 170 170 171 171 172 172 172 173 173 173 173 174 ^ LIST OF SUBJECTS. trii i- .. 127 .. 132 .. 132 .. 132 .. 1H2 .. 133 .. 133 .. 134 .. 134 .. 134 .. 1:15 .. 136 . 135 .. 136 ... 136 ... 138 ... 138 ... n» ... 138 ... 138 ... 139 ... 139 iHt 139 .. 139 ... 139 ... 139 ... 140 ... 146 ... 146 int ... 164 ... 159 ... 159 .... 162 ... 163 ... 163 .... 164 .... 166 .... 166 .... 166 idi- .... 166 .... 167 .... 168 .... 169 .... 169 .... 169 ... 169 170 170 171 171 .. .. 172 172 172 173 173 !.... 173 173 174 Pwe. Lotsea, DMrion of 174 Lunacy and Lunatics 174 Magistrates 177 Maintenance 177 Marriage Settlement 177 Married Women 177 Master 180 Memorial 183 Merger 183 Milldams 183 Mining Company 194 Mixed Fund 194 Money in Court 194 Mortgage 194 Mortt;ai;ee 194 Mortga:;or 194 Motions 209 Mortmain 209 Multifariousness 210 Municipal Law 210 Mutual Rights 213 Navigation Impeding 213 Neglis^ence 213 NdW Hearing 213 New Trial 213 Next Friend 213 Notice 215 Nuisance 216 Office Copies 217 Old Deeds 218 Onus of Proof 218 Opening Biddings. 218 Orders 218 Parol 220 Parol .'Vgreement 220 Parol Evidence 221 Pan>l Trust 222 Part Owner 222 Parties 222 Partition 224 Partnership 226 Part Performance 230 Patent for Invention 230 Payment of Money 231 Personal Representative 232 Petition of Review 232 Pleading 233 Possession 242 Postponing Hearing 243 Power of Attorney 244 Power of Sale 244 Practice 244 Principal and Agent 248 Principal and Interest 248 Principal and Surety 248 Privileged CommunicationB 259 Pro Confesso 259 Production of Documents 261 Public Companv 263 Purchase and Puruhaser. 263 <)aieting Titles 267 Page. Railway and Railway Compa- ny 280 Rates 282 Receiver 283 Recognizance in Criminal Cases. 283 Rector and Rectory Lands........ 283 Redemption and Redemption Suits 284 Referee 285 Reference 285 Re^stration 286 Rehearing 289 Relators 290 Release 290 Relief 291 Rents and Profits 291 Replication 292 Reports 292 Restoring Dismissed Bill 292 Rests 293 Retainer 293 Reversionary Interest 29'* Revivor 294 Revocation 294 Right of Retainer 294 Right of Way 295 Riparian Proprietors 295 Sale 297 Scandal 303 School Law 303 Secret Profit 304 Secret Trust 304 Security for Costs 305 Sequestration 310 Service 312 Setoflf 315 Settling advertisement 316 Sheriff 316 Signature to Information 318 SiHicitor 318 Special or Simple Contract Debt 325 Specific Chattels 325 Specific Performance 326 Statute 3;» Statute of Frauds 335 Statute of Limitations 336 Staying Proceedings 3Ji8 Styling Proceedings 340 Timber 353 Timber Limits 3.53 Time 363 Trad.* Mark 356 Transmitting Answer 357 Treasurer. 3.57 Trusts Act 3.57 Trust and Loan Company 357 Trust Etate 358 Trusts, Trustee, and Cestui que Trust 368 Ultra Vires :W Undue Influence 368 Unsound Mind 368 Usury 369 vm UST OF SUBJECTS. Pun. Vendor and PwdiaMr. 370 Vmue 383 VMted Intereat 383 Vtrting Order 383 VoidB«quart 383 Void dale 383 VolunUiyConreyancei' Act.... 383 WanhouMiiuui'a Receipts 384 Waiver ^Si Warrant 884 Widow 384 Waste 884 Will 385 Wltneaa 406 Witness Pees 407 Writof Amst 407 LIST OF CASES CITED. Name of Case. Abel V McPhenon Adams, Re. it << Adams vGuillott Aikens V Piper Alchin V Buffalo Railway Allan vO'Neil Allan T Clarkson Allan V Gamble Allan V Newman America v Matthews . Amour y Smith Anderson v Dougall . Anderson v Kilborn . Anderson v Paine Anonymous Archibald v Hunter . Ardagh V Wilson Armour V Noble Armstrong ▼ Cayley Armstrong v Armstrong. . . Arnold V Allinor Arran (Township) v Ama- bel and Albemarle (Townships) Arran vAmanel Arthur V Brown Ashford, Ke Attorney-Gen. v Toronto Street Railway Cc Where Reported, t 2 Cham. R., 22!!! 2 Cham. R., 462 17 Grant, 570 .. 3 Cham. R., 106 16 Grant, 607 ... 8 Grant. 48(5 16 Grant, 380 ... 15 Grant, 405 ... 2 Cham R., 408... 14 Grant, 110 ... ICham. R.,9 .. 2 Cham. R., 277 2 Cham. R.. 70... tt ft 3Cham. R., 99.. 2Cham. R., 128 2Cham. R., 163 14 Grant, 528 . 16 Grant, 213 .. 15 Grant, 376 .. 15 Grant, 701 .. 17 Grant, 1(53 .. 3 Cham. R., 396 3Cham. R., 77.. 2 Cham. R., 321 15 Grant, 187 ... 14 Grant. 673 .. 2 Cham. R., 166 15 Grant, 187 ... 18 Grant, 7 15 Grant, 304 ... 18 Grant, 433 ... 2 Cham. R., 279. 3 Cham. R., 101. Attomey-Gren. v Harmer 16 Grant, 53:3 Attomey-GUsn. v Rastal.. Bacon, Re 3 Cham. R., 79.1 60 18 Grant, 138 73 231 270 3H8 140 150 293 451 141 286 38 154 2;w 23 76 279 402 315 49 247 21 285 342 6.'>-66: 38 37 81 106 147 Subject on which Reported. Decisions AiBrmed Patent Quieting Titles Trust Estates Infants Injuncti 'L Retainer Abatement Infants Reference Arbitrator & Arbitration Insolvency Pleading Amending & Amendment Decrees Reversed Quieting Titles Will Service Charitable Uses Practice Amending & Amendment Redemption, &c. i Subsequent Incumbrancer Costs Arbitrator Sc Artitration tt tt Deed Eq^uitable Plea Injunction 81 211 306 Deed Municipal Law Security for Costs 270 Quieting Titles 23 109 146 239 Amending &, Amendment Evidence Information Pleading 217 Nuisance 290 i Relators 70 I Crown and Crown Landa 139 Indian Ijands 248 Practice 174 130 73 Loan of Funds Fraud, &c. Decisions Affirmed Costs LIST OF CASES CITED. Subject on which Keported. Bacon v, t< Eailey v Bailey . «« ■ Shier 16 Grant, 455 " 16 Grant, 485 Baker, Be., Baker v Casey Baker v Dewey Baker v Trainer Bald V Thompson Bamberger v McKay Baldwin v Crawford, Baldwin v Thomas Bank of British North America v McDonald. [2 Cham. R Bank of British North America v Mallory Barker V Eccles 2 Cham. R., 57..! 2 Cham. R., 57. i 2 Cham. R, 58.. 8 U. C. L. J. 3 Ch»m. R, 499 17 Grant, 195 ... 15 Grant, 668 15 Grant, 2.52 IH Grant, 177 15 Grant, 328 2 Cham. R, 9 15 Grant, 119 ,88.. Barr vBarr Bamett v O'Meara... Barry V Brazill Bateman v Bateman , 17 Grant, 102 17 Grant, 277 18 Grant, 440 B^tist Church Property, Baxter v Campbell Beamish V Banett >< >< Beattie v Mutton , << << Beaton v Boomer .... Beard V Gray Beaty v Radenhurst BeckvMuffatt « 14 Grant, 686 '..'. 2 Cham. R, 89 3 Cham. R., 114. 3 Cham. R... 344 17 Grant, 601 .... 2 Cham. R.,215. 3 Cham. R., .397. 3 Cham. E., 239 3 Cham. R, 429. 2 Cham. R., 96.. 15 Grant, 396.... 2 Cham. R, 167. 15 Grant, 396 .... 15 Grant, 117 . .. 2 Cham R, 91.. i 2 Cham. R..194, ' 2 Cham. R, 473 110 195 47 325 52 159 153 172 222 197 348 282 365 292 Bennet V Foreman Bernard V Alley Bennett v Sprague Bentley V Jack Berry v The Columbiai Insurance Co 12 Grant, 418 Bickford V Welland Ca-| nalCo ,17 Grant, 484 BiCiinv Biehn 18 Grant, 496 'iJiggar V Dickson 15 Grant, 253 1.56 207 74 259 199 192 87 10 390 ^402 84 47 297 76 27 291 206 lr.3 384 300 195 242 345 8 268 278 191 344 241 104 2.38 190 247 306 293 162 162 225 118 Evidence Mortgage Changing Solicitor Solicitor Consent Insolvency Injunction Lien Parties Mortgage Tax Sales Dower Trusts, &c. Reports Insolvency Mortgage Decisions A£5rmed Priorities Mortgage Demurrer and Dflnrarring Administration WiU Deed Changing Venue Riparian Proprietors Decrees Reversed Answer and Answering Ttelease Mortgage Interest jTime Sale Mortgage Possession Taxation Administration Quieting Titles ■ t It Mortgage Taxation Pleading Endowing Papers Pleading Mortgage Practice Security for Costs Reports Insurance 'Injunction Partition lExecuton LIST OF CASES CITED. n Name of Case. Where Reported. Bingham V Smith Blachfurd v Oliver Blackburn v McKinlay. Blake v Jarvis Bleakley v Niagara Dis- trict Mutual Insurance Co Blank V Corcoran Bloni? V Kennedy Boardman v VVroughton Bogert & Patterson 16 Grant, 373 ... 8 Grant, 391 3 Cham. R., 65 16 Grant, 295, & 17 Grant, 201. 17 Grant, 201.... 1 16 Grant, 1D8 ... 3 Cham. R., 298 1 2 Cham. R., 453 il6 Grant, 384 ... 114 Grant, 624 ... Bogle V Arnold IGGrant, .501 . .. Bolster v Cochrane 2 Cham. R., 327 Boultbee, Re Boultbee v Cameron Boulton V Church Society of Diocese of Toronto . 2 Cham. 2 Cham. R., 58. R., 41. 15 Grant, 450 14 Grant, 123, & 15 Grant, 4)0.. Eoulton V Church Society 15 Grant, 450 Boswell V Gravly Box V Provincial Assur- ance Co 18 Grant, 280 ... 2 Cham. R., .397. 15 Grant, 3 <7.... 18 Grant, 280,... Brady V. Walls '17 Grant, 699 .... 2 Cham. R., 377. 16 Grant, 523 ... Bradv V Keenan Brad Durne V Hall .... Bradley v Bradl«y .... Bradley v McDunell , Brand v Martin Brant v Willoughby Briga v Dickey Brigbam v Smith ... 14 Grant, 214.... 16 Grant, 518 ... 3 Cham. R., 329. 2 Cham R., 274. 16 Grant, 666.... 17 Grant, 627 ... 16 Grant, 494 ... 18 Grant, 244 . .. 17 Grant, 512 ... " " 3 Cham. R. 462. " " |3 Cham. R., 313. " '2 Cham. R, 257. Brillinger, Re \3 Cham. R., 290. Brooke v Nimeas 2 Cham. R., 461. Brooke v Bank of Upper| Canada 1 17 Grant, 301 .... Brooke v Bank of U')p^ Canada '... ..|16 Grant, 249 .... Brooke v City of Toionto|14 Grant, 258 .... Brock V Saul |16 Grant, 589 .... " ;2 Cham. R., 145 Brock, Municipality of,i V Toronto Sl Nipissing RaUway Co 17 Grant, 425 .... .Sc 230 247 215 166 41 161 313 12 150 328 328 103 2o0 28 314 310 344 87 74 239 166 339 284 74 31 162 384 108 265 362 114 17 273 342 329 283 287 34 315 321 339 220 176 314 240 2.36 107 12S 218 Subject on which Reported. Partnership Practice Next Friend Judgment Attachment Insurance Service Affidavits Injunction Specific Performance Dower Easement Pro Cimfesso Amending & Amendment Service Security for Costs Taxation Demurrer Decisions Affirmed Pleading Judges Staying Proceedings Redemption and Re- demption Suits Decisions Affirmed Appealing Insurance Warehouseman's Receipt Evidence Purchase Trusts, &c. Executors Alimony Quieting Titles Submitting to Decree Specific Performance Receiver Registration Appealing Set-oflf Solicitor Staying Proceedings Orders Lunacy Service Pleading Pleading Esplanade Acts Fraud, &c Opening Biddings 212 Municipal Law zU LIST OF CASES CITED. 11^ ' BrouseTCram Brougball v Hector Brockington v Palmer ... 18 Grant, 488 ... Brouse v Stayner 116 Grant, 1 ■■ 16 Grant, 553.... 16 Grant, 1 14 Grant, 677.... 2 Cham. R., 434 2 Cham. R., 432 2 Cham. E., 119 14 Grant, 682.... 18 Grant, 41 14 Grant, 163 ... 15 Grant, 649 ... 8 Grant, 566.... 2 Cham. R., 439 2 (/'ham. R.,193 8 Grant, 386 16 Grant, 417 ... 2 Cham. R., 186 18 Grant, 190 ... Brothers v Lloyd Brown V Woodhouse . Buchanan v Smith Buchanan v Campbell Buckley v Buckley Buckley v Wilson Buckley v Uuillette .... Burke vPyne Bumham v Peterboru' Bumham v Gait Burrowefl v Hainey .... Butler V Church « << « << Ci tc Subject on which Reported. 73 233 279 273 71 210 216 314 126 197 DamageB Petition of Review Quieting Titles Brown, J. G., Re . Brown v Burger... Bush V Bush... Burgess v Muma... Burns v Chisholm Bum T Strong Cahuac v Durie Caldwell Estate, Re 3 Cham. R., 91 18 Grant, 190 .. 16 Grant, 205 .. 18 Grant, 190 .. >i << 3 Cham. R., 158 2 Cham. R., 446 15 Grant, 431 ... 2 Cham. R., 43 2 Cham. R., 88 14 Grant, 651 ... 2 Cham. R., 394 2 Cham. R., 15U Campbell v Bal/our .!""!;i6 Grant, 108 Camj>b«ll V Young 18 Grant, 97. Campbell v Simmons. Campbell v Young ..., Campbell V Bell Campbell v Durkin ... Cameron, Re Cameron, Re Malcolm ... Cameron V Hutchinson... Cameron v fiamhart C:>.meron v Cameron . . Cameron v Sutherland .. Cameron v Upper Canada MiningCo Cameron v Bntoke ... Cameron V Bijcer . ,_ Cameron v Bethune il3 Grant, 486 15 Grant, 606 18 Grant, 97... 16 Grant, 115 17 Grant, 80 .. 14 Grant, 612 2 Cham. R., 311 16 Grant, 526 ... <■ t( 2 Cham. R., 346 14 Grant, 661 ... 2 Cham. R., 375 17 Grant, 286 ... 2 Cham. R., 215 15 Grant, 693 ... 2 Cham. R., 281 Campion v Fairbaim 1 15 Grant, 674 Canada Permanent Build-| ing Society v Young ...!18 Grant, 666 Crown Patent Motions Notice Service Foreclosure _-. Mortgage 157 I Insolvency 386 I Vendor and Purchaser 144 I Infants 167 I Judgment, &c. 242 Possession 140 I Infants 257 |Prin<^ipal and Surety 189 {Mortgage 217 lOffice Copies 74 35 31 223 2M 234 214 270 314 149 323 13 9z6 Decisions Affirmed Appealing Parties Pleading it Next Friend Quieting Titles Service Injunction Solicitors Dismissing Bill Partnership 121 'Extending Time 241 82 103 296 171 3;J7 6 200 280 273 345 131 323 381 349 121 Extending Time 82 Deeds Pleading Deed Easement Riparian Proprietors Lease Statute of Limitations Administration Mortgage Quieting Titles Taxation Fraud Solicitor Tax Sales 260 iPro Confesso 319 {Solicitor 316 I Service 3*16 'Trusts, 4o. 57 334 Trusts Conveyance Specific Performanos LIST OF CASES CITED. XUl Name of Case. Canada Landed Credit Co. V Canada Agricul tural Insurance Co. .. Cardwell Estate, Re Carroll v McDonald Carrol v Bobertson Carpenter v Hamilton ... Carr v Carr ... Carroll, Re ... Carroll, Re .... City of Carroll v Eccles Cameron v Wolfe Island Canal Co Carter V Adams Carson v Crysler Casey v McColl Cassey v Cassey Cavernill, Re Cayley v Colbert Cayley v Colbert Cayley v McDonald ... Cayley v Cobourg and Peterborough Railway Company Chadwick t Thompson.. Chamberlain v McDonald li >< Chamberlain, Ex parte... Chamberlain v Torrance Chard V Myers Chard v Meyers Where Reported. Charles, Re Chesley v Coupe Cherry V Morton , Chisholm v Allen Chisholm, Re Chisholm V Bernard Church Society of Dio cese of Toronto v Cran- deU Church Society v Mc- Queen City Bank v Schatcherd. City Bank v Maulson (2) Clarke, Re Clark V Eccles. Clark V Clark .. Clancy v Patterson .... Clements v Arnold Clemow V Converse .... Clipperton v Pettigue . Coats V Edmondson .... C«bourg V Peterborough Railway Co., Re Cockburn v Johnston .... 17 Grant, 418 ... 2 Cham. R., 150. 15 Grant, 329 ... 15 Grant, 173 .. 2 Cham. R, 282, 2Cham. R.,71... 2 Cham R., 223. 2 Cham. R., 305 17 Grant, 529 ... 3 Cham. R., 54... 3 Cham. R., 57... 16 Grant, 499.... 3 Cham. R., 24 15 Grant, 399 ... 8 U. C. L. J., 50 2 Cham. R., 431 2 Cham. R., 455 X4 Grant, 540 .. 14 Grant, 671 ... 2 Cham. R., 389 2 Cham. R., 204 14 Grant, 447 ... 2 Cham. R., 352 14 Grant, 181 ... 3 Cham. R., 120 44 t( 2 Cham. R , 391" 4 Cham. R., 19.. 15Gri>nt, 214 ... 8 Grant, 402 2 Cham R., 411. 18 Grant, 467 ... 10 Grant, 479 ... 8 Grant, 341 1ft Grant, 281 ... 18 Grant, 185 ... 3 Cham. R., 334. it t( 2 Cham. R., 57. 3 Cham. R., 324 3 Cham. R., 67.. 17 Grant, 17 2 Cham. R., 217 3 Cham. R., 75 16 Grant, 547 ... 15 Grant, 269 .. 2 Cham. R., 439 16 Grant, 671 ... 15 Grant, 577 ... (?3 160 2 341 191 202 Subject on which Reported. Insurance Acts Stylo of Proceedings Mortgage 314 Service 17 Alimony 321 Solicitor 309 Security for Costs 319 ; Solicitor 173 I Limitations 289 I Rehearing 22 Amending & Amendment 236 308 102 275 145 302 200 282 62 87 179 280 109 33 35 47 383 289 375 242 401 293 209 198 65 366 367 9 324 53 390 52 141 156 54 105 282 Pleading Security for Costs Dower Quieting Titles Infants Sale Mortgage Railway Company Production of Documents Demurrer and Demurring Married Women Quieting Titles Evidence Appealing Changing Venue Vendor and Purchaser Registration Vendor and Purchaser Possession Will Retainer Mortgage Mortgage Costs Trusts, &C. Cochrane t Johnstone .. il4 Grant, 177 Coleman v Glanville |18 Grant, 42... Cole V Glover 16 Grant, 392 Collins V Denison 2 Cham. B., 465 Commercial Bank v Wil-|l4 (ilrant, 473 ; 3 son I E. &A. R.,257 Conlin v Elmer 116 Grant, 641 Conant v Miall Connor V Douglass " *' (inAp peal) Connor v McPherson (c t( I i< ( " andXhom- bury Duffy v Graham , Duncan v Ross Duncan vTrott Dundas and Hamilton Towns ▼ Milton 2 Cham. R., 460 3Cham. R.,81.. 2 Cham. R., 364 3 Cham. R., 318 15 Grant, 632 .. 17 Grant, 187 ... 15 Grant, 547 ... 2 Cham. R., 443 2 Cham. R., 487 18 Grant, 311 ... Sheriff Child Trade Mark Mortgage Executors Purchase and Purchaser Amending t Amendment Restoring Bill Master Security for Costs Administration Appointment under I Power Interest [Master Administration Appealing Will Staying Proceedinsn Trusts Solicitor Discharge Covenant Release Costs Solicitor Specific Chattels Rehearing Riparian Proprietors Appealing Affidavits Decree Style of Procnedings Quieting Titles Examination Specific Performance Quieting Titles barring Entail. Security for Costs Title Hearing Solicitor Quieting Titles Office Copies Costs Appealing Purchase and Purchasar Vendor and Purchaser Ai)pealing Principal and Surety 317 50 359 194 116 266 23 292 183 309 4 36 163 182 6 30 33 391 340 363 323 91 69 291 65 323 326 289 296 296 32 13 79 341 268 112 331 280 105 307 355 136 321 274 217 64 29 264 382 31 254 285 167 Judgment, &c. 141 'Infants 63 Contempt 77 Canal XVI LIST OF CASES CITED. !.i Name of Caw. DundM, Town of, v The Hamilton and Milton Road ......^... DundaB, Town of, v De« jardins Canal Go Dunlop V County of York Dunlop V The Corpora- tion of York Eadie v MoEwan — Re Eadie Eastman v Eastman East Zora v Douglass. Edwards V Burling. Edinburgh L. A. Co. AUen Elliott V Hunter Elliott V Beard Ellis V Dellabotgh Elmsley v Madden « 18 Grant, 311 .. 17 Grant, 27 « It 16 Grant, 216 .'.' 2 Cham. R., 417 16 Grant, 216 ... 14 Grant. 404 ... 2 Cham. R., 325 2 Cham. R., 183 17 Grant, 462 .. Gilbert V Jarvis II II Judgment Amending & Amendment Appealing Answer and Answering Amending & Amendment Specific Performance Solicitor Contempt K II II II ' Gildersleeve v Wolfe Is- land Railway & Canal Company • Gillatlev v White II II Gill V Gamble "Gillespie v Gillespie XVUl LIST OF CASES CITED. Gillespie v Gillespie Gilmore v Gilmore .. Gilmore V Myers Oilpin V West Glass V Hope Glass V Moure Glover v Wilson Goff vLister Goldsmith v Goldsuiith.. Goodevev Manners Goodfellow V llobertson. Gordon v Johnson Gordon V Elliot Gordon v Johnson Gordon v Hamden., Gordon v Eakins Gordon v Johnston. Gorham v Gorhr.m.. Gourley v Riddell ., Goetler v Eckersville... GooldvEich Gould V Vankoughnet Gourley V Ingram « Gowland v Garbutt . Gracey V. Gracey .... Graham v Anderson . Grahame v Anderson. Graham v Bobson .... Graham V Godsen .... Graham y Powell Graham v Yeomans .. Graham v Machall.... Graham v Meneily. Graham v Chalmers Graham V Davis Grant V Kennedy Great Western Bailway Co. V Jones Green V Adams Green v Amey Greenwood v Commercial Bank of Canada Grey v Reesor Grier V Plunket GrifiSn V McGill Grainger T iifttham 2 Cham. B., 267 14 Grant, 57 2 rham. E., 179 18 Grant, 228 ... 14 Grant, 484 ... 2 Cham. R., 327 17 Grant, 14 14 Grant, 451 ... " " 17 Grant, 213 '.'.'. It ti (( «« ''\ 5 Grant, 114 18 Grant, 572 ... 3 Cham. R., 206 2 Cham. R., 471 2 Cham. R.,210 2 Cham. R., 205 <> t< 18 Grant, 231 ... 16 Grant, 363 ... 14 Grant, 452 ... 17 Grant, 386 ... '2 Cham. R., 158 15 Grant, 82 4 Cham. R., 128 2 Cham. R., 33.. 2 Cham. R., 237 2 Cham. R., 238 2 Cham. R., ."^09 13 Grant, 578 ... 17 Grant, 113 ... 15 Grant, 189 ... (> << 2 Cham. R., 303 17 Grant, 318 ... 2 Cham. R., 472 15 Grant, 327 ... 18 Grant, 238 ... 2 Cham. R., 376 << it 16 Grant, 661 !. it tt 2 Cham. R., 53" 2 Cham. R., 187 2 Cham. R., 24 2 Cham. R., 269 2 Cham. R., 219 2 Cham. R., 134 2 Cham. R., 138 14 Grant, 40 16 Grant, 205 ... 16 Grant, 152 ... 2 Cham. R., 318 2 Cham. R., 313 2 Cham. B., 419 14 Grant, 209 ... 398 266 287 315 66 240 25 95 15 27 60 260 248 357 373 189 150 68 314 210 237 299 121 164 164 165 193 16 189 193 33 68 292 376 m) 243 135 128 270 173 140 141 132 20 191 261 249 328 211 141 405 361 374 Subject on which Reported. 93 Dismissing Bill' 306 Will Will 121 Extending Time 369 Trusts, &c. 44 Building Societies 313 Service WiU Purchase and Purchaser Registration K toflf Costs Pleading Annuity Deed Agency Answer and Answering Commission Pro Confesso Practice Transmitting Answer Vendor and Purchaser Mortgage Injunction Costs Service Motions Pleading Sale Extending time Interpleader Issue Mortgage Alimony Mortgage Appealing Costs Reports Vendor and Purchaser' Trusts &c. Postponing Hearing Hearing Fraud, &c. Quieting Titles Lis Pendens Infants it Garnishee Amending &, Amendment Mortgage Production of Documents 'Principal and Agent Specific Performance Municipal Law Infants Witness Trusts Vendor and Purchaser LIST OF CASES CITED. XIX Name of Caae. Urange v Barber. Gray v Coucher . n II It II Gray v Hatch II II <• 41 4« • I II II Where Reported. 2 Cham. B., 189 15 Grant, 419 ... 18 Grant, 72. 11 ti Grummet v Grummet . . Gummerson v Banting . Gunn V Adams Gunn V Doble Haggart v Quackenbuah. 14 Grant, 701 Hamilton v Mcllroy 18 Grant, 332 2 Cham. B., 12 14 Grant, 648 ... 18 Grant, 616 ... 8U.C.L.J.,2I1, & 4 Cham. B.. 15 Grant, 655 ... Hamilton v Hamilton Hamilton v Dennis ... Hancock v Mcllroy Harding, Re Hardy, Re, Poole v Poole Harper jV Knowlson HarCj Re Hams V 0'^ Meyi ers. Harrison v Harrison Harrison v Grier Harrison v Shaw . . . Harvey v Boomer II << Hatch V Ross i< 11 Healy v Daniels .. •I t 11 3 Cham. B., 232 3 Cham. R., 179 2 S. E. and A. R.,253 2 Cham. R., 417 2 Cham. R., 121 3 Cham. R., 89. 2 Cham. R., 248 3 Cham. R., 107 16 Grant, 117 ... 14 Grant, 586 ... 2 Cham. R.. 440 2 Cham. R., 438 2 Cham. R., 44. 17 Grant, 558 ...i 3 Cham. R., 11... I 15 Grant, 96 i 14 Grant, 633 ... .< i( 18 Grant, 438 ."! •« It 3 Cham. R., 199 18 Grant, 119 ... It 11 2 Cham. R., 418 18 Grant, 16 18 Grant, 79 16 Grant, 412 ... 16 Grant, 683 ... 2 Cham. R., 246 15 Grant, 616 ,.. 15 Grant, 530 ... 2 Cham. R., 274 14 Grant, 183 ... 16 Grant, 670 ... 63 67 110 192 95 67 293 359 347 216 399 41 20o 264 333 229 142 58 214 109 269 322 228 314 311 312 311 312 294 251 22 111 240 364 355 232 43 200 67 74 217 308 75 221 142 9 385 392 168 339 76 9C 35 102 298 327 Subject on which Reported. Costa 11 Evidence Mortgage Dismissing Bill Costs Reversionary Interest Trusts, &C. Taxation Notice WiU Purchase and Purchaaer Assignment Mortgage Specific Performance Partnership Infants Corporation and Coc* porate Seal Next Friend Evidence Quieting Titles Solicitor Partnership service Sequestration Revivor Principal and Agent Amending Examining Pleading Trusts Time Petition of Review Bankrupt Morl^age Creditor Decisions Affirmed Nuisance Security for Costs Decrees Varied Parol Agreement Infants Administration Vendor and Purchase r Will Jurisdiction Staying Proceedings Decrees Beversed Devise Appealing Dower Sale Specific Performance MX LIST OF CASES CITED. I ! ! jKiniie ot Ctu. Hewson v Smitii^- HigSjioB, Tie Where Reported 17 0rant, 407 ... 4 Cham. B., 128 17 Grant, 445 ... 2 Cham. B., 348 HUlv Thompson Hill, Exparte Hodgson vPaxton JCham. B.j398 Hoig V Gordon !?«??""**• 9?? •■ Hjlmes V Hohnea Hooper v Hooper .„... ... Houck V Town of Whitby Hovey v Ferguson .... Howard V Harding.... i? 361 277 278 Subject on which Reported. Trusts, Ac. Quieting Titles Howe V Howe Howes V Lee . Howland, Re . Howland, Be . « « Howland v McNab Hume V Cook Hunter v Mountjoy Hunter, Re Huron, Corporation of, v Kerr. Hutehinson v Sargent Irving V Boyd Irwin V Lancashire BuranceCo IC « <> Irwin, Re Israel, Re In 17 Grant, 610 3 Cham. R., 114 14 Grant, 671 .. 18 Grant, 498 ... 18 Gnutt, 181 .. 3 Cham. R., 494 17 Grant, 469 ... 4 Cham. U., ... 4 Cham. R., 90... « « 4 Cham. R, 6 .. Larkin v Good , Lassert v Salyerds .... Latch V Bright Lawrason v Buckley . LawBonv Crookshank Lee V Bell Leisman v Eastwood . Lee V McKinley Levitt V Wood Lewis V Robson Lindsay Petroleum Oil Co. V Hurd 2 Cham. R., 42 3 Cham. R., 55 14 Grant, 608 .. 17 Grant, 372 .. 2 Cham. R., 132 14 Grant, 29 17 Grant, 372 ... 2 Cham. R., 492 3 Cham. R., 285 14 Grant, 224 ... 2 Cham. R., 47 15 Grant, 171 ... 2 'Jham. R., 52 1<> Grant, 17.... 13 Grant, 323 .. 16 Grant, 232 .. 3 Cham. R., 161 i( (i 3 Cham. R., 137 3 Cham. R., 79 17 Grant, 695 ... 15 Grant, 331 ... 14 Grant, 36 14 Grant, 33 .. 2 Cham. R., 454 17 Grant, 100 18 Grant, 530 8 Grant, 39.... 3 Cham. R., 234 it tt 4 Cham. R. 3 Lindsey v Johnson 16 Grant, 159 it it 17 Grant, 585 17 Grant, 109 16 Grant, 653 15 Grant. 585 2 Cham. R., 334 3 Cham. R., 270 3 Cham. R., 477 2 Cham. R.,413, 1 &426 2 Cham. R., 413 2 Cham. R., 373 2 Cham. R., 114 2 Grant, 88 18 Grant, 527 .. 17 Grant, 414 .. 18 Grant, 395 .. 17 Grant, 115 .. ii ii 3 Cham. R., 16 ' 2 Cham. R., 387 15 Grant, 446 .. 313 111 148 232 93 348 380 176 299 70 344 143-4 260 284 74 235 223 117 7 78 367 119 Subject on which Reported. 279 272 272 136 240 6 Service Examination Injunction S^cific Performance Dismissing Bill Taxation Vendor and Purchaser Lunacy Sale Crown and Crown Lands Taxation Infants ' Pro Confesso Rector and Rectory Lands Decisions Afiirmed Pleading Parties Executors Administration Decree Tender Executors Quieting Titles Hearing Pleading Administration 110 i Evidence 24 I Amending & Amendment Referee 285 285 24 290 100 405 333 166 171 22 22 264 141 138 116 121 340 214 389 103 221 76 75 373 232 210 205 Amending Rehearing Dower Will Specific Perfonnanc3 Joint Tenant Lease Amending & Amendment it it Purchase and Purchaser Infants Imprisonment for Debt Executors Extending Time Stop Order Next Friend WiU it Parol ACTeement Decrees Reversed Decrees Varied Vender and Purchaser Payment of Money Motions Mortgage i! ^i! ll ill XXI 1 LIST 0*' CASES CITED. Nkine of Cue. Where Reported. la ^Subject on which Reported. Linet, Re Little V Hawkins Little V Wright Livingitone v Acre Livingstone v Wallace Livingstone v Western Assurance Co ti << t< Longway V Mitchell ... Long vLong 11^ i« II II II II II (I 3 Cham. R., 230 3 Cham. R., 78 16 Grant, 676 ... IR Grant, 610 ... 14 Grant, 461 16 Grant, 9 ... 17 Grant, 190 16 Grant, 239 Where Keported. Mulholland v Hamilton « it Mulh'>]1and v Morley .. Mumi) V Munro Mumey v Courtney . Murphy v Feehan .... Murphy v Morrison . Murtherv McKinna. Mutchmore v Davis ., 15 Grant, 53. 17 Grant, 293 17 Grant, 205 15 Grant, 431 10 Grant, 52... 2 Cham. R. 14 Grant, 203 14 Grant, 59... 14 Grant, 346 Mackenzie v Wiggins ... 2 Cham. 391.. Macbdth V Smart 14 Grant, 298 Macdonald v Macdonaldil7 Grant, 37.. Macdonald v Mcbonell..{2.E. & A. B., 293 Macdonald V. Rose 1 17 Grant, 657 Macdonald, Re Macdonell v McKay... Macfarlane t Dickson Mackay v Sweeny 2 Cham. K., 29., 15 Grant, 391 ... 2 Cham. B., 38. 15 Grant, 423 ... 15 Grant, 432 ... 2 Cham. R., 222 16 Grant, 595 Macpherson v Macpher son Me Alpine V Eckf rid McAlpine v Young ,2 Cham. R., 171 McBeanvLiley |2Cham. R., 247 McBethv Smart 1 14 Grant, 298 .. McBride, Re 2 Cham. R., 153 McCabe v Thompson ]6 Grant, ^75 McCann V Eastwood .... McCarty v McMurray . McCargar v McKinnon. " (2)... McCarroU v McCarroll... McConnel, Ke McConnell v McConnell. fi it McDermid v McDermid. McDermott v McDermott McDonald v McLean .... McDonald V Rose McDonald v McMillan... McDonald V Himu McDonald v McDonald . . . McDonald v Wright .. . McDoiiald V Ferguson . McDonald v McMillan. McDonald v Gordon .... . 2 Cham. 12 Cham. R., R.: 243 141 377 Vendor and Purchaser 40 Assignment 179 Married Woman 240 Pleading 248 Practice 68 Costs 41 Attachment 34 Appealing 129 Fraud, &c. 76 Decrees Reversed 71 Crown Patent 242 Possession 263 Public Company ... WiU 199 Mortgage 338 Specific Performance 9 Administration 335 Statute of Frauds .SO Appealing 329 ^ecific Performance 352 Tender 18 Alimony 73 Damages 302 Sale 214 Next Friend 315 Setoff 293 Retainer 199 Mortgage 25 Annuity 131 Fraud, &c. 115 Executors 183 Master 116 Executors 93 Dismissing Bill 214 Next Friend 320 Solicitor 286 Reference i:i4 Gift 112 Examination 259 Pro Confesso 22 Amending & Amendment 86 I Delay W Pleading 249 Principal and Agent 193 Mortgage 175 Lunacy 76 Decree Reversed 380 Vendor and Purchaser 288 81 315 218 302 368 76 353 14 262 Registration Deed Service Opening Biddings Sale Ultra vires Decrees Reversed Timber Limits Affidavits Production of Documents -HBMWWWWW" UST OT 'CASES CITED. XXT Name of Case. McDonell v McKay 2 Cham. U., 354 2 Cham. ~ ' McDonell v the Upiper Canada Mining Co 15 Grant, 179 McDonell v B^jmolds , McDonell, S. S., Re .. McDongabv Miller., McDougall, In Ke McDougall V McDougall McDowell V West McEwan v Boulton McEwan v Orde . 15 Grant, 179 . . 2 Cham. R., 400 14 Grant, 691 ... 18 U. C. L. J., 4 Cham. R., 85 14 Grant, 179 ... 15 Grant, 505 ... 14 Grant, 609 '.'.' 14 Grant, 267 ... 14 Grant, 492 McFeeters v Dixon . , McGill V Courtice .... McGory V Malady... McGonegal v Strong . McGregor v Rapelje . McGregor v Maud McGregor v Robe-'^ in.. McGrath, Re McGratb v McGrath Mcllroy v Hawke Mcintosh V Mcintosh .. Mcintosh V Wood . Mclntyre v Canada Co.. Mclntjrre v the Attorney General McKenziev Brown , McKay v McKay McKinnon v Anderson... McKelvey v Davis McKelvey v Rourke McKinnon v Anderson... McKinnon v McDonald.. McKenzie v McDonnel... McLean v Cross ... >( > ct 3 Cham. R., 432 ii It 17 Grant, 667 15 Grant, 239 17 Grant, 533 ti (I 17 Grant, 84...! McLaren v Coombs ft tt McLennan v Helps McLennan v McDonald.. 16 Grant, .587 ... 2 Cham. R., 124 16 Grant, 602 .. 3 Cham. R., 193 18 Grant, 502 ... 184 105 204 182 368 334 379 392 224 203 12 12 243 120 95 4 306 368 83 74 177 23 355 175 17 35 J 96 98 243 337 71 218 148 133 55 331 170 2.36 299 159 173 65 301 238 344 76 83 123 348 399 60 287 Svbkcton which Reported. Payment o£ Money Amending Corporation and . Corpo- rate Seal Mining Company. Endorsing Papers Mortgage. Master Ultra Vires Specific Performance Vendor and. Purchaser Will Partition Mortgage Affidavits tt Postponing Hearing Ex parte Motions Dismissing Bill Administration Security for (yosts Undue Influence Deed Dicisions Affirmed Marriage Settlement Amendmg & Amendment Title Lunacy Alimony. Time Division Court Dower Postponing Hearing Statute of Limitations Crown Patent i Pleading Injunction General Orders Contribution Specific Performance Mortgage Pleading Revivor Insolvency Local Master Costs Sale Pleading Tacking Void Sale Decrees Reversed Deeds Fixtures Taxation WiU Commission Registration t HXVl LIST OF CASES CITED. .J m i! McLennan v Grant McMahon V O'Neil McManus v Little McMartin v Dartnell .... McMaster V Morrison .. McMillan v McSherry ... McMillan v Bentley McMorris, Re McMurray v Grand Trunk Railway Co McNab V Mclnnes McNab V Morrison McQueen v McQueen McRae, Re McRaev Froom McRory v Henderson Nash V McKay , 15 Grant, 55... 16 Grant, 579 ... 3 Cham. R., 263 2 Cham. R., 322 14 Grant, 1.38 14 Grant, 135 15 Grant, 133 16 Grant, 387 3 Cham. R., 430 •P 3 Cham. 3 Cham. 3 Cham. 3 Cham. 4 Cham. 4 Cham. 2 Cham. 2 Cham. R., 306 R.. 125 R. 130 133 R. R. R R., 133 R.. .'544 Needier V Campbell Neil V Neil Nelles V Van Dyke Nelson, Re Nelson, Re, McLellan \ Wishart Nelson v. Gray Newman, Re... Newton v Ontario Bank. ii li Nichols V McDonald, in Appeal Nicholl V Moore Nixon V Hunter North V Williams Northwood v Keating .... Oates V Smith O'Connor v Naughton ... O'Connor v Clarke O'Dea V Sinnott Oliver V Dickey Ontario Salt Co. v Mer- chants' Salt Co Ontario Bank v Campbell O'Reilly V Rose Ostrauder v Ostrander Palmer Ex Parte Parker v Brown .., 2 Cham. R., 471 I 15 Grant, 408 . 17 Grant, 357 . 14 Grant, 271 . 15 Grant, 247 . (( (( 17 Grant, 392 . 15 Grant, 110 . 17 Grant, 14... 2 Cham. R., 252 14 Grant, 199 .. 14 Grant, 512 .. 2 Cham. R., 454 2 Cham. R., ,390 15 Grant, 283 . . 18 Grant, 106 ... 2 Cham. R., 474 17 Grant, 96 17 Grant, 179 ... 18 Grant, 643 .. 17 Grant, 660 ... 14 Grant, 428 ... 18 Grant, 422 ... 2 Cham. R., 446 2 Cham. R., 87 18 Grant, 551 ... 18 Grant, 640 ... 18 Grant, 561 ... 2 Cham. R., 468 18 Grant, 33 3 Cham. R., 50 2 Cham. R., 351 3 Cham. B., 364 389 86 374 13 337 400 299 336 64 21 340 342 48 286 47 93 33 32 157 380 323 291 225 a32 234 290 407 395 404 181 314 176 157 158 67 109 196 231 84 .321 227 301 51 113 Subject on which Reported. Will Delay Vendor and Purchaser Affidavits Statutes of Limitations Will Sale Statutes of Frauds Costs Amending & Amendment Staying Proceedings Subpoena [Changing Venue I Reference ! Changing Reference Dismissing Bill Appealing Insolvency, Ac. Vendor and Purchaser Solicitor Rents and Profits Partition Specific Performance Pleading Rehearing Witness Fees. Will Master Service Lunacy Insolvency, &c. Costs Evidence Mortgage Patent Deed Solicitor Partnership Sale Compensation Examination 227 Partnership 54 Contract 68 Corporation and Corpo- rate Seal 94 Dismissing Bill 158 Insolvency 338 Statute of Limitations 271 Quieting Titles 27 lAnswer and Answering LIST OF CASES CITED. XXVll vhich d. rchaser itations ids [lendment lingR ■ S bs dance 1 Corpo- atioTie iwering Name of Case. Mon Parsons v Bank of treal Paterson v Buffalo and Lake Huron Railway Co Patterson v Royal Insur- ance Co Paterson v Holland Patterson v Kennedy ..., Paterson v Lailey Patrick v Ross , Paul V Johnson Paul V Ferguson Pearson v Campbell (< u Peck V Bucke Peers v Oxford Pegley v Woods ... Pherrill v Pherrill Perrin v Perrin , Phillipps V Zimmerman Phillips V Preston Pew V Lafferty Ponton, Re Poole V Poole Prince V lirady .. Prince, Re Proctor V Dalton. Qua V Scothorpe Quebec Bank v Snure . . Rachel McDonald v Archibald McDonald. Radway v Solomon Rae V Geddes Where Reported. Rapson v Hersee Rastall V Attorney-Gene- ral 15 Grant, 411 ... 17 Grant, 521 ... 14 Grant, 169 ... 8 Grant, 238 2 Cham. R., 372 18 Grant, 13 2 Cham. R., 459 12 Grant, 474 14 Grant, 230 2 Cham. R., 25. 2 Cham. R., 12. 2 Cham. R., 294 7 Grant, 472 2 Cham, R., 368 17 Grant, 472 ... 14 Grant, 47 2 Cham. R., 444 << (t 3 Cham. R., 452 18 Grant, 224 ... 14 Grant, 67 10 Grant, 408 ... 15 Grant, 355 ... 2 Cham. R., 376 2 Cham. R., 459 2 Cham. R., 475 2 Cham. R., 379 16 Grant, 375 ... 3 (^ham. R., 282 2 Cham. R., 470 Rathbun v Hughes. Read v Smith 16 Grant, 449 , 16 Grant, 681 , 14 Grant, 1.33 .. 16 Grant, 078 .., 15 Grant, 50 3 Cham. R., 404 <( t> 18 Grant, 217 '.'.'. 16 Grant, 685 '.'.'. 18 Grant, 138 ... « « 3 Cham. R., 160 2 Cham. R., 326 1-1 ^ 238 Subject on which Reported. Pleading 280 Railway and Railway Co. 161 (Insurance 223 Parties 112 I Examination 359 Trusts, &c. 11 Advertisements 15 Agency 285 Redemption, &;c. 350 Tax Sales 314 Service 237 Pleading 220 Orders 302 Sale 85 Defective Proof 58 County Treasurer 357 Treasurer 256 Principal 362 Trusts, &c. 138 I Imprisonment for Debt 61 I Costs 7 I Administration 285 I Referee 29 101 372 405 34 136 306 95 165 234 60 260 254 365 287 378 150 182 163 3.50 373 201 2.54 108 283 46 292 35 Appealing Dower Vendor and Purchaser Will Appealing Hearing Security for Costs Dismis.sing Bill Irregularity Pleadings Costs Pro Confess© Principal and Surety Trusts, &c. Registration Vendor and Purchaser Injunction Master Interest Title Vendor and Purchaser Mortgage Principal and Surety Jurisdiction Recognizances in Crimi- nal Cases Chancery Jurisdiction Replication Appealing XXVIU LIST OF CASES CITED. 11 Name of Case. Read V Smith 14 Grant, 250 in Appeal. 16 Grant, 62 Where Reported. Rees V Attorney-General Reid V Cooper . Reid V Stevens. 2 Cham. R., 386 2 Cham. R., 30.5 2 Cham. R., 90... 3 Cham. R., 372 Roe V Stanton 17 Grant, 389 Rice V George. Rich V Brantf ord Richards v Richards .... Richardson v Armitage. Richardson v Beaupre . Richardson, Re << << Ricker V Ricker Rickman v Canada Life Insurance Co Ridley V Sexton Ritchie V GUbert Robins v Carsan Roberts v Corporation of Toronto Robertson v Grant Robson V Wride Robson V Beanish Robinson v Coyne Roe V Smith Roe V Stanton Romanes v Fraser Romanes V Herns .., Rosamund v Forgee Ross V Robertson « <( Ross V Ross Russell V Brecken Ruttan V Levisconte . Rykert v Miller 2 Cham. R., 74 14 Grant, 83 2 Cham. R., 283 18 Grant, 512 ... 2 Cham. R.,64... 3 Cham. R., 144 14 Grant, 264 "' 17 Grant, 550 18 Grant, 580 3 Cham. R., 377 2 Cham. R., 343 16 Grant, 236 3 Cham. R., .331 Ross V Vader Royal Canadian Bank v Cummer (> « Royal Canadian Bank v Kerr Royal Canadian Bank v Mitchell Royal Canadian Bank v Denis Rundle, Re Sanderson v Burdett . 14 Grant, 606 .. 15 Grant, 111 .. 16 Grant, 676 .. 14 Grant, 561 .. 15 Grant, 344 .. 15 Grant, 137 .. 17 Grant, 267 .. 16 Grant, 97 3 Cham. R., 53. 2 Cham. R., 363 18 Grant, 370 .. 2 Cham. R., 66.. 2 Cham. R., 66.. 4 Cham. U., 27.. 16 Grant, 647 .. 3Cham. R.,2;i6 2 Cham. 11., 388 15 Grant, 627 .. 17 Grant, 47... 14 Grant, 412 8 U. C. L. J., 85 4 Cham. R , 86.. it i< 2 Cham. R., 253 2 Cham. R., 488 2 Cham. R., 108 14 Grant, 1 14 Grant, 25 18 Grant, 417 16 Grant, 119 127 196 243 94 126 64 319 92 147 26 .383 260 60 347 187 88 2.52 26 406 311 39 247 132 23 377 106 139 158 78 178 84 289 3;^ 296 215 261 172 363 78 50 206 Subject on which Reported. Foreclosure Mortgage Fo8ti>oning Hearing Dismissing Bill Foreclosure Costs Solicitor Dismissing Bill Injunction Pro Confesso Voluntary Conveyance Pro Confesso Costs Taxation Mortgage Demurrer and Demurring Principal and Agent Answer and Answering Witness Sequestration Assignment Practice Garnishee Petition of Right Vendor and Purchaser Equity of Redemption Husband and Wife Insolvency, &c. Decree Married Woman Deed Rehearing Appealing Riparian Proprietors Notice Production of Documents Legacies. Trusts Decree Coramissiuii Mortgage 1.55 Insolvency 179 I Married Woman 298 269 277 79 212 285 75 370 16 .379 Sale Quieting Titles Decree Order to Revive Redemption, &c. Decisions Affirmed Vendor and Purchaser Agency Vendor and Purchaser LIST OF CASES CITED. XXIX a which i:ed. [earing ill ill mveyance 1 Demurring Agent Lnswering ght 'urchaser lemption Wife c an )rietor8 Documents an ire Slc. rmed urchaser urchaser Name of Case. Where Reported. Subjact on which Reported. Sanderson v Burdett (( X U (( Saunders v Fumivall « <( Saimders v Fumivall Saunders V Stull « i< 16 Grant, 119 ... « (i 16 Grant, 119"; In Appeal, 18 Grant, 417 2 Cham. R., 55 2 Cham. R., 159 2 Cham. R., 49 18 Grant, 590 ... c< .t « «« 3 Cham. R., 467 2 Cham. R., 271 3 Cham. R., 399 3 Cham. R., 352 18 Grant, 66 3 Cham. R.,"323 14 Grant, 376 ... 16 Grant, 182 ... 2 Cham. R., 93 14 Grant, 172 ... 17 Grant, 328 ... 4 Cham. R., 33 2 Cham. R., 368 14 Grant, 150 ... 2 Cham. R., 67 (( t< II 17 Grant, 45...!!! 3 Cham. R., 1 ... 364 235 266 63 307 26 236 172 234 61 341 365 216 352 34 395 243 57 72 1.38 33 358 112 357 18 35 13 105 214 8 174 175 383 221 352 169 113 220 378 191 242 99 50 319 97 170 153 3M 40 244 90 168 378 98 9 Time Pleading Purchase and Purchaser Costs Security for Costs Production of documents Pleading Married Woman Scott, Re !!!!!!!!!!!! Pleading Costs Screiber v Eraser Scott V Bumham Style of Proceedings Trusts Notice c< u Technical Grounds Scott V Scott Appealing (C << Scott V Black Scott V Hunter Scott V Wilson Seath V Mcllroy.. Secord v Terryberry. Secord v Costello Sefton v Lundy Possession Conveyance Damages Jurisdiction Appealing Trusts, &c. Examination Sessions Ex Parte Severn v Severn Trusts Act Alimony Sharpe, Re Appealing Affidavits Sharpe v Sharpe Shaver v Gray Entitling Papers Next Friend Administration Shaver, Re Lunacy <( << Shaw v Shaw Vendor and Purchaser Parol Evidence I< (C Third Person Shaw V Freedy Shea V Denison Jurisdiction Execution Shennan v Parsill Parol Agreement Vendor and Piirchaspp Sheppard v Sheppard .... Sherboneau v Jeffs Sills v Lang Mortgage Possession Dower Simpson v Ottawa Rail- way Co Clerical Error (, rted. d Agent Costs £nned id Agent Costs ceedings m [Rrmed PurchaHtT jeedings leview n on 'urchaser tione on to. C!ost8 f Pocuinents me Name of Case. Street, Be . Stump V Bradley Sullivan v Sullivan ... Summers v Abel Sunley V McCrae Sutherland v Kogers , Iron Sutherland v Dixon Swan v Marmora Works Co Swinnerton v Swinnerton Switzer v Ingham Tait v Harrison Taylor v Walker Thomas, Re Thomas Davis, Be Thompson V Milliken ., Thompson v Freeman ., Thompson v Callagan . Thompson v Macaulay. Thompson v Thompson. Thompson, lie Thompson v Freeman . Thome v Chute Tiiorne v Bichards Thorpe V Shillington.... Thorpe, Be Thomas v McCrae Tompkins v Holmes .... Toms & Moore, Ke .... 8 U. C. L. Jy«ei; 4 Cham. Bf;29S» 15 Graut, 3 ... Ifi Grant, 94 .. 15 Grant, 532 •i.Cham. B., 231 2 Cham B , 191 2 Cham. B.,25.!! 2 Cham. B., 155 2 Cham. B., 453 14 Grant, 287 . . 17 Grant, 458 ... 8 Grant, 504 15 Grant, 196 .. 17 Grant, 603 .. 15 Grant, 197 ... 4 Cham. B., 1 ... 15 Grant, 384 ... 3 Cham. B., 15... 3 Cham. B., Ill 2 Cham. B., 211 2 Cham. B., 100 4 Cham. B., 1 ... 2(!ham. B., 221 15 Grant. 403 ... 15 Grant, 85 15 Grant, 76 2 Cham. B,, 456 14 Grant, 245 ... 2 Cham. B., 381 Toms, Be Totten v Douglas, in Ap' peal Totten v Douglas 3 Cham. 3 Cham. B. B., 41 204 <( (1 18 Grant, 341 15 Grant, 126 ... 16 Grant, 243 ... in Appeal] 18 Grant, 341 .. 17 Grant 233 .. 17 Grant; 233 .. 2 Cham. B., 80 12 Cham. B., 402 Toronto, Bank of, v Fan-| Totten V Watson Totten V Mclntyre Subject on whioh Beported. aT/JJ nmg Toronto, Bank of, v Fan' ning, in Appeal Toronto City v Mowat .. Toronto Savings Bank v Canada Life Assurance Co Treadwell v Morris Truesdell v Cook Trust and Loan Co. v Monk Trust and Loan Co. v Reynolds 17 Grant, 614 18 Grant, 391 16 Grant, 355 14 Grant, 509 . 15 Grant, 165 . 18 Grant, 632 . 14 Grant, 385 . 2 Cham. B., 41. 2?i> 119 4 230 63 313 183 146 247 17 78 237 248 158 266 322 52 118 306 298 102 345 46 63 79 394 8 302 180 318 319 320 75 199 130 204 204 265 193 221 217 120 350 351 107 Quieting Titles Executors Administration Patent for Costs Service Master Infants Practice Alimony Decree Pleading Practice Insolvency Purchase and Purchai^er Solicitor Consent Executors Security for Costs Sale Dower Taxation Certificate Costs Dower WiU Administration Sale Married Woman Solicitor Decisions Affirmed Mortgage Fraud, &c. Mortgage Purchase Mortgage Parol Agreement Office Copies Ex parte Motions Tax Sales Tax Sales Explanade Acts 163 146-7 338 3 302 Interest Injunction Statute of Limitations Acta Sale !l;i8 xxxu LIST OF CASES CITED. Name of Case. Where Reported, of Tnist and Loan Co. Canada v Boulton .. Trust and Loan Co. Cuthbert Trust and Loan Co. Shaw Trust and Loan Co. Eraser Trustee Bank of Upper Canada V The Canadian Navigation Co Turner's Will, Re, ex- parte Seaton Turley V Myers Tyler v Lauder Tyler V Webb Tyrrell v Rose Tyson v Pears (Jpper Canada, Bank of, V Fanning Upper Canada, Bank of, V Wallace ... Upper Canada Mining Co, V Attorney-General ... (( '< t( United States of North America v Denison... t( K « United States of North America v Boyd Van Norman v Harding. Vansickle V Champlin .. Van Wagner v Findlay.. li « <( Waddell « Waddell V McGinty V Smith Walker V Brown Walker V Niles Walker, Re .....".,'."!!! Walker vNiles i( t( Walker V Walker Walker, Re Walkier vFriel Wallace V Acres Wallace Wallace V Anderson V Moore Wallace ir Acres 18 Grant, 234 ... 14 Grant, 410 ... 16 Grant, 446 ... 18 Grant, 19 16 Grant, 479 3 Cham. R., 259 3 Cham. R., 102 15 Grant. 99 3 Cham. R.,33 17 Grant, 394 ... 2 Cham. R.. 470 17 Grant, 391 ... 16 Grant, 280 ... 2 Cham. R., 169 16 Grant, 280 ... 2 Cham. R., 185. 2 Cham. R., 207 2 Cham. R., 263 2 Cham. R., 176 15 Grant, 138 ... 14 Grant, 165 ... 2 Cham. R., 199 2 Cham. R., 98 14 Grant, 53 2 Cham. R., 211 2 Cham. R., 58 2 Cham. R., 62 15 Grant, 261 2 Cham. R., 445 15 Grant, 261 3 Cham. R., 412 14 Grant, 330 3 Cham. R.. 108 3 Cham. R., 418 2 r^ham. R., 324 3 Cham. R.,59... 18 Grant, 210 ... 3 Cham. R., 272 2 Cham. R., 324 16 Grant, 105 2 Cham. R., 392 16 Grant, 624 .. 18 Grant, 101 ... 2 Cham. R., 392 -I Subject on which Reported. 202 198 286 400 195 246 312 327 31 170 Mortgage Registration WiU Mortgage Practice Sequestration Specific Performance Appealing Landlord and 'i'enant 219 lOrders 73 74 30 241 190 341 94 62 172 164 326 62 305 377 292 122 121 132 342 95 182 237 307 334 365 165 49 305 319 150 42 363 550 219 Decisions Affirmed Appealing Pleading Mortgage Style of Proceedings Dismissing Bill Costs Letters Rogatory International Law Specific Performance Cost School liaw Vendor and Purchaser Reports Extending Time Fraud, &c. Subpoena Dismissing Master Specific Performance Security for Costs Staying Proceedings Taxation Interpleader Issue Chattel Mortgage Security for Costs Solicitor Injunction Attachment Trusts, &c. Dower Order to Revive m -I LIST OF CASES CITED. XXXlll Name of Case. Wallbridge v Martin. Walnisley v Bulla .... I ^ Where Reported. I |)'^ Ward, Kf, 2 Cham. H., 27.5 2 Cham. R., 344 15 Grant, 210 ... 2 Cham. R., 188 Washburn v Fern* Watson V Henderson. Watts V I'aiker Webb V McArthur... 1« (Irant, 7»i... 14 Grant, .51(5 14 f^rant, .514 Weir V Mattheson Weiss V Rankin We.stbrooke v Browett.... Westmacot v Jiockerhill Wetenhall, Re Whateley v Whateley.... White V Bastedo White vKirby 12 (;ham. l2('ham. '.^ Cham. , 4 Cham. 2 Cham. !2 Cham. 1 3 Cham. R., MO R., :w R., 3«4 R., 78 R., 1« R., T.i R., 190 White V Church White V Baskerville W'hitteiiiorc. lie NVhirter v Itoyal < ' dian Bank Whiteside V Miller. Whiting V '"'uttle ... WiuviuH V .Meldruni. W'iv'lit V Cliureh iina- 1 17 Grant, 339 ... 12 Cham. R., 442 l4 Cham. R., 98 14Grant, 403. .. 1.5 Grant, 54(5 ... 2 Cham. U., 414 2 Cham. R., 4.52 ■■2 Cham. R., 203 2 Cham. R., 40 '2 Cham. H.. 17 W'ilkii" V Cori)oration ofj Clinton I Williams v .lenkiiis . il7 (ir.ant, j 14 Grant, 393 1 17 Grant, 4.54 ! 15 Grant, .377 1 15 (irant. 413 1 1(5 (Jnint. 192 Wils, FroTidfoot Wilson V ( !ould Wilson V Hosst'v Wilson V Bnmshill Wilson V Hod,i,'.s()n Wilson V I'roudfoot Wilson V Robertson Wiman v Bratlstreet Wishart v Cook Workman v Royal Insur- ance (.'() Wood V Brett Wood V Wood 18 Grant. 557 .. il8(Jrant, 5.3( It I It It Woolans v Vansickle |ir Grant, 4.'>1 ... Wright, Ex parte 1 2 Cham. R., .•{53 Wright V Western Insur- anceCo 2 Cham. R., 40;< Wright V Rankin il8 Grant, (i25 ... '^ " |18 Grant, (i25 .. 240 2.37 ;«)8 228 <;8 273 Subject on which Reported. Service Pleading ti Will (Jo.sts Partnershii) CJosts Qtiietinif Titles Wycott V Hartman 1 14 Grant, 219 ...I Yale V ToUerton J2 Cham. R., 4i» | Yarrington v Lyon \2 Cham. R.,22 Yokham v Hall |l5 Grant, '.m ...' I Zimmerman v O'Reilly... 14 Grant, (J4(i ... 202 I'rodiictiMnof Documents 14 A^'ency 304 School JjUW lOS) I Evidence i;« (lift 49 jlnxolvencv 22 ! ■ •.iTtO I ... Wast, 22 !()ualiKed A!le>f»ti 'M ! DIGEST OF REPORTS OP CASES IN CHANCERY, TO 1st JULY, 1872. ABATEMENT. Of Suit. A suit does not abate by the death of one of the plaintiffs, if others remain on the record having similar interests, and capable of maintaining the suit. Alehin v. Buffalo Railway Company, 2 Cham. R., 45. Where a plaintiff had assigned, in part, his interest in ihe svibject matter of the suit, an objection that the suit had abated was overruled. McDonell v. U. C. Mining Go.^ 2 Cham. R, 400. ABSENT DEFENDANT. See Service — Practice — Security for Costs. ABSOLUTE DEED. See Deed — Mortgage. ABSTRACT OF TITLE. See Vendor — Purchaser. ACCEPTANCE OF TITLK See Vendor and Purchaser. B 2 ACTS ACCOMMODATION INDORSER. See Contribution. ACCOUNT. See Partition— Executors. Ordinarily, a bill for an account will not lie by an agent against a principal. James v. Snarr, 15 Grant, 229. A bill for an account was held to lie at the suit of a munici- pal corporation against their ti-easurer and his sureties. The Munisipal Cwpwatimi of the Township of East Zorra v. Douglas, 17 Grant, 462. ACCOUNTANT. His Jurisdiction, Duties, and Powers. See 34 Vict., c. 10. ACQUIESCENCE. See Nuisance— Easement— Pleading — Assignment for Benefit of Creditors. ACTS. Act 29 & 30 Vict. See Security for Costs. Act 29 Vict,, Ch. 2S— Construction of. Section 28 — See Insolvency. Section 31 — An administrator was desirous of converting saw logs into lumber, for the benefit of the estate he repre- sented. An application under above Act, Section 31, was entertained, and an opinion given in favour of the courae sug- gested. Re Cardwell Estate, 2 Cham. R., 150. Section 33 — See Administrator, &c., VI. Act 25 Vict., Ch. 72. Execution of Conveyances under, by Plaintiff— Commissioners — Powers of Attorney. ^ ACTS. 3 A purchaser of lands in Canada, from the Trust and Loan Company, cannot insist upon a conveyance under the corporate seal of the Coni[)any ; for, it being an English Company, it would be highly inconvenient if all conveyances had to be sent to England for execution ; and the Statute 25 Vic, ch. 72 effectually provides against the doubts md difficulties in a title, to which the execution of conveyance, under powers of attorney, ordinarily give rise. But the Company is bound to place the ptirchaser in tlie same position, as nearly as may bo, as if the conveyance were directly by the Company ; and, therefore, it should provide and annex to the conveyance executed by the Commissioners referred to in the above Act a certified copy of the commission or power of attorney authorizing them to Act for the Company. An execution by one of two or more Commissioners, whose api>ointment is authenticated as provided by the above Act, is not a compliance with its provisions, and a purchaser is not bound to accept a conveyance so executed. Tintst and Loun Co. i\ Monk, 14 Grant, 885. Acts affecting the Court of Chancery, and the Practice THEREOF, passed SINCE THE PUBLICATION OF DiOEST (1868). 34 Vict, Cap. 10 — Ontario — Act retpecting the Court of ClMncery. ADMINISTRATION— ADMINISTRATION SUITS- ADMINISTRATOR. See Assignment, 4 — Building Society, 2 — Executors — .JuDGMF iT Creditor — Will — Lunacy and Lunatics — Petition. I. Rights and Liabilities op Executors and Adminis- trators. II. Compensation to. III. Rights of Creditors as against. IV. Letters op Administration. V. Foreign Administration. VI. Miscellaneous. wmf 1 4 ADMINISTRATION. I. Eights and Liabilities of Executors and Administra- tors AS TO Costs and otherwise. Executors in this Province have no right to leave the admi- nistration of the estate to this Court without some special necessity, where the expense of the suit would be dispropor- tionate to the amount of costs. McGillv. Courtice, 17 Grant, 271. In such lication for an administration order, the fact of the defendant being administrator is not disputed, and the plaintiff has filed an affidavit that he is administrator it is not necessary to give further evidence of the fact, or to produce the letters of administration, or a copy thereof. Re Bell, 3 Cham. R., 397. n 1! 1 \ ! -i i i: i m 8 ADMINISTRATION. V. Foreign Administration. A foreign administrator cannot effectually release a mortgage on land in this Province. Payment to him, and a release by the heirs, are not sufficient to entitle the owner to a certificate of title, free from incumbrances, under the Act for Quieting Titles. Where a person, resident in a foreign country, dies possessed of mortgages on land, situate in the Province, the Surrogate Court, of the county within which the land lies, has jurisdiction to grant administrfltion where the Surrogate Court of no other county has jurisdiction. The Surrogate Courts of this Province have the same autho- rity to grant limited administrations as the Probate Court in England has. In Re Thorpe, 1 5 Grant, 76. Where a testator dies in a foreign country, leaving assets in this Province, the Court, at the instance of a legatee, will re- strain the withdrawal of the assets from the jurisdiction, not- withstanding that there may be creditors of the testator resi- dent where the testator was domiciled at the time of his death ; and that there are no creditors resident in this Province. Sha/oer v. Gray, 18 Grant, 419. VI. Miscellaneous. Section 33 of the Act to amend the Law of Property and Trusts, 29 Vict., ch. 28, which enacts that any person, after 31st December, 1865, dying seized of land charged with the payment of any sum of money by way of mortgage, the heir or devisee shall not be entitled to have the mortgage debt dis- charged out of the personal estate : Held, not to apply to cases where the land is charged with the performance of an obligation other than the payment of money. ' In a case, such as suggested, where the Statute was held not to apply : — It was considered no bar to the chai'gee's right to be paid out of the personal estate of the intestate, that he was himself also heir-at-law of the intestate : Held, that a suit against an administrator by a person entitled to a legacy or % ■•3 :3 : -a ■ "r. 4 ADMINISTRATION. 9 distributive share of the estate cannot be brought before the expiry of a year after the death of the intestate. Slater, 3 Cham. R., 1. Slater v. The plaintiff and another bought from a testator's executora and trustees certain real and personal estate ; the real estate was subject to a mortgage, which the vendors agreed to pay ; the pui'chasers puid their purchase money, but the vendors applied the same to pay other debts of the testator, and left the mortgage in jiart uxipaid ; the plaintiff having bought out his co-purchaser, filed a bill against the executors; a decree by consent was made, giving the plaintiff a lien on the testator's assets, ordering the defendants to pay personally what the plaintiff should fail to realize from the assets, and directing the accounts and inquiries usual in an administration suit ; the estate was insufficient to pay all creditors ; before the making of the decree a creditor of the estate had obtained judgment against the executors, and the Sheriff seized and sold goods of the testator in their hands : Held, that the plaintiff had no right to prevent the creditor from x'eceiving the money. Henry V. Sharp, 18 Grant, 16. Under the ordinary administration decree in respect of a testator's real and personal estate, the Master may take an account of timber cut with which the defendants are chargeable. Stewart v. Fletcher, 18 Grant, 21. An administration order will not be granted where the grounds upon which it is claimed are properly the subject of a bill. Re Macdonald, 2 Cham. R., 29. Though strict proof of the claim is not necessary, yet a prima facie case must be made before administration order will be granted. Re Clarke, 2 Cham. R., 57. The order XV., providing for the administration of estates without bill, applies to simple cases only, and under it the Court will not grant an order containing special directions to enquire as to what would be proper to be allowed to the appli- cants (the widow and administrators) for improvements made 10 ADMINISTRATION. on the property, and for the maintenance of the infant children of the deceased. Barry v. Brazill, 1 Cham. R., 248. The facts that an estate is small, that no imputation is made against the executors of it, and that it is unadvisable to incur legal expenses, are no answer to a motion by a legatee against the executors for the usual administration order. In re Fal- ^.rn«r, 1 Cham. R., 273. A bill filed by an administrator to obtain possession of cer- tain i h?i»els outstanding in the hands of a third party, and for auministratio^i of the estate, held multifarious both as against such third party and the persons interested in the estate. Cole. V. Glover, 16 Grant, 392. ■* ADMISSION. Of Evidence. See Evidence. Of Service. See Service. ADOPTION. Of Contract. See Principal and Agent. Of Lease. See Lease — Landlord and Tenant. ADULTERY. See Alimony. ADVANCES TO AND BY AGENTS. See Agency — Investment of Money by Agent — Trus- tee—Administration. To Executors. See A.dministration. 'i i 1 '-IS, I I ADVANCEMENT. See Partition, 6. t children tn is made 5 to incur eo against In re Fal- lon of cer- y, and for as against ate. Cole, T — Trus- ^vi AFFIDAVITS. ADVERSE POSSESSION. See Statute of Limitations. 11 ADVERTISEMENTS. Of Sale. See Insolvency. Where, by an oversight, an advertisement had been inserted only tliree times instead of four, on an application for an order pro con, it was ordered that defendant be re-advertised the projier number of times. Patrick v. Ross, 2 Cham R., 459. AFFIDAVITS. See Production of Documents — Practice— Injunc- tion, I. (a) — Evidence. I. In support of Motion foe Injunction. See Injunction. Jl. Generally, 1. Swearing in Fweign Lands. 2. Where permitted to he read. 3. Stating Source of Information. 4. Of Non-payment of Mortgage Money. 5. Containiny Alterations. 6. fVhen considered Scandalous. 7. Entitling and Styling. 8. In a Suit against Irmirance Company. 9. Filing further Affidavit. 10. Of Justification. 11. (1) Swearing in Foreign Land. When an affidavit purported to be sworn in the United States, before a notary public, and had the signature and nota- rial seal of such notary, held to be sufficient, without proof aliunde of such signature. Merchants' Express Co. v. Morton, 2 Cham. R., 319 ; 15 Grant, 274. An affidavit sworn before a commissioner for taking affida- 12 AFFIDAVITS. i Jl, vits in the English Court of Chancery, at Glasgow, vras he.ld to be insufficiently sworn. McEwan v. Boulton, 3 Cham. R., 63. II. (2) Where permitted to he read. On the gianting of an interim injunction, the jilaintiff had leave reserved to file a certain affidavit. On a subsequent day, on a jwstponement of the argument, it was arranged that no further affidavits should be filed ; the affidavit referred to was then in Court, but not filed, but was filed at a subsequent hour of the day. On an objection being made to its recej)tiou, it was held receivable. Merchants^ Union Express Co. v. Morton, 2 Cham. R., 319. II. (3) As to stating source of information. The oi'der that affidavits shall state the source of information of a deponent who swears as to his information and belief is directory ; and it is competent to the Court to relax it in a proper case, and when the ends of justice would be served by so doing. Merchants' Express Go. v. Morton, 2 Cham, R., 319 ; 1,5 Grant, 274. An affidavit made by the plaintiflf's agent, stating that he had the management of all the plaintifi"s business in this coun- try, was held as sufficiently shewing his source of information. The expression "owner in fee" held to mean the beneficial owner. McEwam, v. Boulton, 2 Cham. R., 399. II. (4) Of Nm-payment af Mortgage Money. The affidavit of the non-payment of the mortgage money in a suit for foreclosure or sale should not be made on the day the money is due, but subsequently. Blmg v. Kennedy, 2 Cham. R., 453. II. (5) Containing Alterations. An affidavit will not be allowed to be i ead if it contains alterations which are not initialed by the commissioner before whom it is sworn. Crippen v. Ogilvie, 2 Cham R., 304. All erasures and interlineations in affidavits must be initialed II. AFFIDAVITS. 13 v'jvs held Cham. R., lintiflF had qtxent day, ed that no •red to was (juent hour jception, it V. Morton, information nd belief is lax it in a e served by m. 11., 319; [ng that he 11 this coun- nformation. e beneficial ;e money in on the day Kennedy, 2 it contains Loner before 304. , be initialed by the commissioner before whom it was sworn, otherwise it cannot be read. The notice of motion, in referring to an affidavit, should state the day on which it was filed. McMartin v. Dartnell, 2 Cham. R., 322. II. (6) When considered Scandalous. Where the affidavit on which a motion to review taxation was grounded, contained allegations of misconduct on the part of the solicitor altogether unconnected with the dealings be- tween the solicitor and the client, such allegations were held to be scandalous, and were ordered to be struck out of the affida- vits. In re Fitch, 2 Cham. R., 288. II. (7) Entitling and Styling. Where the affidavits on which an allowance of an appeal from a County Court Judge was sought, were not entitled in any Court, they were not allowed to be used. Re Sharpe, 2 Cham. R., 67. Affidavits styled in short form — "A. B. and other plaintiffs," and "CD. and other defendants" — were held to be sufficiently styled, and allowed to be read. Dickey v. Heron, 2 Cham. R., 490. Affidavits need not, in their entitling, distinguish the parties by original and amended bill ; it is sufficient to describe them as the now parties to the suit. SomervUle v. Kerr, 2 Cham. R., 154. II. (8) In a Suit against an Insurance Company. In a suit against an Insurance Company, on a policy, the bill alleged that the policy had been destroyed: Held, that an affidavit of the fact must be annexed to the bill. Workman V. Royal Insurance Company, 16 Grant, 186. II. (9) Filing furtlier Affidavit. A plaintiff having failed to amend his bill, till the time within which he could have done so had expired, owing to the pendency 14 AGENCY. of a motion to dismiss : HM, that the motion to (lismifls whb not a sufficient excuse for the delay ; and Jiehl, further, that the plaintiff might, under the circumstances, lile an additional aflSdavit, the former being insufficient, and then renew the ap- plication. McDmell v. McKay, 2 Cham. R., 243. II. (10) Of Justification. See Security for Costs. AFTER ACQUIRED ESTATE. See Will I. AGENCY AND AGENT. Evidence of. See Joint Purchase. See also Administration —Administrator— Principal and Agent. I. Implied. II. Investment op Money by Agent. III. Joint Purchase. IV. AoENT Purchasing op Testator when acting for Widow. I. Implied. There may be agency, and its duties and liabilities, without express words of appointment or acceptance ; and where a party, in negotiating between two peraons, the one desiring to sell, the other to buy certain land, gave the former to understand that he was acting in her interest, it was held, that she was entitled to the full price which he obtained for the land, though it exceeded the amount which he had obtained her consent to accept. Wright v. Rankin, 18 Grant, 625. II. Investment of Money by Agent. A. Received $1,200 belonging to his son-in-law, R., and in vested it, with other money of ^.'s own, in the purchase of a farm, which cost $3,200. /?., with his family, went into pos session of the farm; and A., the father-in-law, by his will, V inte his AGENCY. 15 naifls waR her, thrtt idditioiial w the «|>- SISTRATION devised the farm to ^^.'s wife and son jointly for Uie life of the wife, with remainder to the son in fee, subject to the payment of $200 to a daughter of R., and of $600 to another person. It was assumed in the cause that H. was at the time of the pur- chase and thenceforwai*d of unsound mind, and unable to give a valid assent to the transaction ; and the Court held, on that assumption, he was entitled to the $1,200 as against ^.'s estate, and that the devise to his wife and son were no satisfaction of the claim ; and also that he was probably entitled to a charge on the land for the debt. But the Court directed inquiries whether R. was, at the date of the transaction, of mental capa- city to assent to the purchase ; and, if so, whether he did assent thereto ; also, inquiry as to the occupation of the land by £. and his family before the death of ^., and the value of such occupation. GoodfeUmo v. Robertson, 18 Grant, 572. ACTINO FOR iies, without here a party, ring to sell, understand hat she was land, though \y consent t.«) R„ and in lurchase of a lent into pon by his will, III. Joint Purchase. Where a purchase was made by a person in his own name, but in reality for the benefit of another, a personal decree against both, for the payment of the purchase money, was held to be correct. Sanderson v. Burdett, 18 Grant, 417. Parol evidence of the agency was held admissible, and the purchaser, who entered into the contract in his own name, and who was a defendant, was h«ld a good witness on behalf . of the plaintiff against his co-purchaser, the other defen- dant. 76. IV. Agent Purchasing Mortgage op Testator when act- ing FOR Widow. The widow of an intestate obtained letters of administration, • and her brother, a lawyer, acted for her as a friend, not pro- fessionally, in the management and settlement of the affairs of • the estate. While so employed, the brother, with his own ■i moneys, purchased a mortgage which had been created by the I intestate : Held, that he was entitled to hold the mortgage for I his own benefit. Paul v. Johnson, 12 Grant, 474. [ ■i I 16 ALIMONY. AGREEMENT. Cmstnid'm of. See Vendor and Purchaser. By Parol. See Parol Agreement. Not tinder Seal. See Railway— Corporation. As to Partitim. See Partition. i ALIMONY AND ALIMONY SUITS. I, Whether Decree can be made by consent. II. Interim Alimony. 1. Generally. 2. ff^here Excessive. 3. JFhcre lie/used. 4. Evidence of Marriage. III. Misconduct of Wife after Decree. IV. Writ of Arrest. I. Whether Decree can be made by consent. In a suit for alimony, the wife must prove herself aggi-ieved. otherwise there is no foundation upon wliich the Coui*t can proceed to pronounce a decree for alimony. The defendant, in his answer to an alimony suit, denied the acts of cruelty charged against him by the bill, and no evidence was given trj establish the charges of cruelty, but at the hearing the defen- dant consented to a decree being made for alimony ; the Court. on the grounds of public policy, refused to interfere. Gracey v. Gracey, 17 Grant, 113. In such a case, the parties could attain the object they had in view, of effecting a separation, by arrangement, out of Court; the objection to pronouncing the decree sought wa.s. the Court doing that without proof of necessity for its inter vent-'->n, which it can only properly do upon proof of such necessity. lb. n. Interim Alimony. ALIMONY. 17 (1) (renenJly. Ill an alimony case wliere the marriage is admitted or proved, interim alimony will bo granted almost as a matter of course, notwithstanding that the defendant swears he is willing to re- ceive and maintain the plaintiff. Carr v. Carr, 2 Cham. R, 71. Interim alimony will be granted on prinui facie proof of the marriage, although the validity of the marriage is disputed. McHrath v. McGmth, 2 Cham. R., 411, An application for interim alimony must be upon notice. Sivinerton v. Swinerton, 2 Cham. R., 453. On a question arising under the Act 32 Vict., ch. 18, and the C4eneral Order 491, it was held that the plaiutitf', in an alimony suit, is not entitled to the $40 mentioned in the Ordei". (Hbb V. Gibb, 2 Cham. R., 402. II. (2) Where Excessive. Where, in an alimony case, no one a[)i»earing for the defen- dant, an order had been made for interim alimony for the amount endorsed on the bill, which the defendant considered excessive ; on a motion by him to set aside the order, a refer ence was directed on payment of the costs {dives costs) of the application. Hooper v. Hooper, 3 Cham. R., 114. II. (3) JVJiere Refused. To obtain an order for interim alimony, the plaintiff must shew she is in want of means of support. "Where the pai-ties had been living separate for four years, and the wife did not allege that she was in want of means of support, and the hus- liand swore she was in better circumstances than he was, an order was refused. Bradley v. Brmlley, 3 Cham. R., 329. II. (4) Evidence of Marriage. On an application for interim alimony, the validity of the alleged marriage cannot be tried. If a marriage de facto is proved, it is sufficient. Bradley v. Bradley, 3 Cham. R., 329. C 18 ALIMONY. ■ ; III. Misconduct of Wife subsequknt to Decree. After a decree for alimony had been made, and alimony paid for several years under it, the Court entertained a petition by the husband to be relieved from the decree, on the ground of adultery subsequently committed by the wife. On the hearing of a petition by a husband to be relieved from a decree of alimony, an act of adultery was sworn to by two credible witnesses ; and the general conduct of the wife raising no presumption in her favour, an order was made as prayed. Severn v. Severn, 14 Grant. 150. IV. Writ of Arrest. The Court, in an alimony suit, on a motion to discliarge the defendant from arrest under a writ of arrest, will look into the merits of the case so far as to enable it to judge whether the plaintiff has reasonable grounds to expect to succeed in her case, and, in the absence of her shewing such fair and reason- able grounds, or in the event of the defendant displacing the jmma facie case made by her on obtaining the writ, he will be discharged. A wiit of arrest had been granted on the affidavit of the plaintiff, alleging violence and ill-treatment on the part of the defendant, and shewing that the defendant had advertised his stock and farming implements for sale. A motion was made to set aside this writ, and the violence and ill-treatment were denied. The plaintiff was shewn to be a young robust woman, the defendant an old man of sixty-eight yeai*s, and the conduct of the plaintiff to have been violent, and immoral, and unchaste. On the denial of the defendant of any intention to leave the Province, and under the circumstances above stated, the writ was ordered to be set aside. MacpJierson v. Macpherson, 2 Cham. R., 222. ALLEGATION. (In Bill) as to Notice. See Pleading — Practice. AMENDING AND AMENDMENT. Of Destruction of Policy of Insurance. 19 In a suit against an Insurance Company, on a policy, the bill alleged that the policy had been destroyed : Held, that an affidavit of the fact must be annexed to the bill. Woi'k- man v. Royal Insurance Co., 16 Grant, 185. ALTERATION IN DEED. See Deed. II. III. rv. AMENDING AND AMENDMENT. Amending Bill. 1 . Wliere granted. 2. Time within which to he granted. 3. Where refmed. 4. Effect of 5. After Decree. 6. At the Hearing. 7. After Replication. 8. Amending Infoimation. 9. Amending without prejudice to Infnnctiort. Amending Decree. Amending Interpleader Issue. Amending Sheriff's Return. I. Amending Bill. (1) JVhen leave to amend granted. In a suit foi- specific perforn»iince, tlje evidence having clearly established the bargain as alleged by the plaintiff, though his l)ill omitted to state the terms and mode of payment, as agreed upon ; the Court offered him the alternative of taking a de- cree for specitio peiformance, with payment of purchase money in hand ; or to amend his bill, setting up the exact terms of the bargain. GUlatley v. White, 18 Grant, 1. Where the pleadings and evidence were not before the Court in a satisfactory manner, and the Court being obliged to reject 20 AMENDING AND AMENDMENT. evidence on both sides, as not material under the pleadings, was not satisfied as to the result being in accordance with the rights of the parties upon the actual facts, leave was given to amend on payment of the costs of the hearing, &c. Conlin V. Elmer, 16 Grant, 541. A plaintifi" having failed to amend his bill till the time within which he could do so had expired, owing to the pendency of a motion to dismiss ; held, that 4)he motion to dismiss was not a suflScient excuse for the delay; and held, further, that the plaintifi" might, under the circumstances, file an additional affi davit, the former being insufiicient, and then renew the appli- cation. McDonell v. McKay, 2 Cham. R., 243. Where a question aifected the rigbit..,.Df ihe Government to the land granted in a patent, the Attorney-General was held to be a necessary party, and leave to amend was granted to enable him to be added as a party, although the defendant was in a position to move, and made a counter motion to dismiss, but the defendant was allowed costs. Great Western Railway Co. V. Jones, 2 Cham. R, 219. An order to amend which is obtained befoi'e serving the bill, does nob require service. Where a bill has been amended, and the affidavit was of service of " tiie bill," the Court presumed the bill served was the bill as it stood at the time of service. Bohtef V. Cochrane, 2 Cham. R., 327. The Court will allow an amendment where an unimportant mistake has been made in a name which has misled no one, and the right person been served. The Court does not favour objections of this nature, and re- fused an enlargement ; where, but for such mistake, the p) o ceedings were regular, and ample notice had been given. Re Fraser, 2 Cham, R., 457. Where there is a misjoinder of petitioners, the Court has jurisdiction, at the hearing of the petition, to allow the same to be amended by striking out the name of one of the petitioners. Gilbert v. Jarvis, 16 Grant, 294. AMENDING AND AMENDMENT. 21 I. (2) Time within which to he made. Where an order, giving leave to amend, has been granted, without limiting the time in which the amendments are to be made, such amendments should be made within fourteen days from the date of the granting of the order. Wliere circum- stances prevented this being done, and no order dismissing the bill in the alternative of it not being done, was embodied in the order granting the leave to amend, the Referee held it to be competent to the Court to grant further time for amending, even on an application made after the fourteen days have ex- pired, if a proper case was made out for it. McMurray v. (hand Trunk Railway Co., 3 Cham. R., 306. A plaintift' will be allowed to amend even after the expira- tion of twenty-eight days from filing the answer where such plaintiff has been delayed by the defendants not obeying the :,ecial application, the order can be obtained on precipe ; if not, notice must be given to the parties affected by the amend- ments. McGregor v. Maud, 2 Cham. R., 387. Amendments of a material character wi'l not be allowed, without prejudice to a pending motion for injunction. Davi/ V. Davy, 2 Cham. R., 81. II. Amending Decree. A motion to amend a decree in which the pleadings and e\'iilence, or anything beyond the judgment and decree, have to be looked at, must be presented in Court, and not in Chambers. 24 AMENDING AND AMENDMENT. ■i tl ^ii Under Order 562, the Referee will order such matters only as can regularly be brought on before him in Chambers to be heard before a Judge, if he thinks it proper. Where, on a petition to amend a decree, the petitioner asked in the alterna- tive for a re-hearing, and that the Referee would adjourn that p trt of the application to be heard before a Judge, the Referee held it to be beyond his jurisdiction, and dismissed the petition with costs. Lapp v. Lapp, 3 Cham. R., 2.34. The Referee's jurisdiction with regard to amending decrees con- sidered, Lapp V, Lapp, 2 Cham. R. , 234, affirmed. Leave to re-hear refused, after considerable delay on part of })arty seeking to re- hear, and where the grounds for re-hearing was an alleged •rror in the decree, which was not an obvious error, and caused no miscarriage of justice. Lapp v. Lapp, 4 Cham. R. -. A consent decree may be amended on petition, if it is shewn that it contains terms which were not consented to. Merchant's Bank v. Grant, 3 Cham. R., 64. A decree can only be amended on an application in Cham- bers, when it is not drawn in accordance with the judgment, or some necessary consequential direction has l)een omitted* Watson V. Henderson, 2 Cham. R., 370. The Secretaiy in Chambers will not grant an order to amend a decree, except to correct a clerical error, or to make the de- cree conform with the judgment. Where the decroe omitted to diiect that costs should be pai»I forthwith, an application to amend was refused. IFUson v. Robertson, 3 Cham. R., 100. Where a decree, which had been taken out by the plaintiff in an administration suit, en-oneously made provision for pay- ment of certain annuities and legacies, in priority to the provi- sion made by the will for the widow of the testator, the Court, upon the petition of the widow, directed the decree to l)e amended, but refused costs to either party. Eadie v. McEwen, —Re Eadie, 14 Grant, 404. ANNUITY. III. Amending Interpleader Issue. 26 Where an interpleader issue had been granted to try the ownership of certain goods seized under Ji. fo.., an interpleader issue was tendered by one party, which contained an en-or j the other side, whilst pointing out the error, refused to agree to its amendment, but gave notice that he would not accept or act on the issue, and then moved to set aside the writ of inter- pleader and notice of trial. The Secretary refused the applica- tion, and gave the other party leave to amend the issue nunc pro tunc, which decision, on appeal, was sustained. Mulholland V. Dovtms, 2 Cham. R., 233. IV. Amending Sheriff's Return. A Sheriff, in his advertisement of sale of lands seized under a /i. fa. from this Court, had described them as the lands of the defendant, when they were those of the plaintiff; on an ap- plication on notice, this return was allowed to be amended on payment of costs of the motion. McCann v. Eastwood, 2 Cham. R., 182. ' ANCIENT DEED. See Deed — Evidence, I. 7. ANNUAL PROFITS. MairUeixance — Charged on. See Will. ANNUITY. In lien of Dower — Interest on. See Will. No interest is allowable in respect of arrears of an annuity. Goldsmith V. Goldsmith, 17 Grant, 213. 26 ANSWER AND ANSWERING. ANSWER AND ANSWERING. Answering Demunable Bill. See Pleading — Practice. 1. Time for. 2. After time expired. 3. Neglecting to give notice of. 4. Filing without corporate seal. 5. Swearing and identifying. 6. Transmitting answer. 7. Supplemental. 1. Time for. The time for anpwering is not changed by the Consolidated Orders. The period is four weeks, not a calendar month. Irwin V. Lancashire Insurance Co., 2 Cham. E., 291. 2. After time expired. Where service has been effected on an agent, and it can be shewn that tlie time allowed for answering is insufficient to enable him to communicate with his principal, and to get in the answer on an affidavit of a good defence on the merits, a defendant will be granted leave to file his answer, although an order p-o con. has been taken. Irwin v. Lancashire Insurance Co., 2 Cham. R., 293. The Court is loth to debar a defendant from answering, when he shews he has a good defence on the merits, and that to refuse would or might amount to a denial of justice. Leave was granted to a defendant to answer under such circumstances, even after considerable delay on his part, he being put on terms as to costs, going to hearing, and otherwise. Eitchie v. Gilbert, 3 Cham. R., 377. 3. Neglecting to give notice of. Where a defendant's solicitor tiles an answer, but neglects to give notice thereof, the Court will not order it to be taken off the files, but will extend to the plaintiff the time for taking ANTECEDENT DEBT. 27 the next step in the cause, by such time as has been lost by the neglect in giving notice. Parker v. Brown, 3 Cham. R., 354. 4. Filing witJimt corporate seal. There is no authority for allowing a corporation to file an answer without seal, except by consent. "Where a stay of proceedings was asked, to enable the de- fendants to apply at law for a mandamus to compel the head of the corporation to afiix the corporate seal to the answer, but it was not shewn that the majority of the shareholders approved of the answer ; the application was refused with costs. Gilder- sleeve V. Wolfe Island Railway and Canal Co., 3 Cham. R., 358. 5. Swearing and identifying. The fact that an answer had been sworn before a Commis- sioner, who had been formerly concerned as solicitor in the cause, was not held to be ground for taking the answer off the files. Gordon v. Johnson, 2 Cham. R., 205. On an application for leave to answer, it was held sufficient that a copy of the proposal answer was attached to the affidavit of verification. Loudon v. London, 2 Cham. R., 40. 6. Transmitting answer. Where an answer had been irregularly transmitted, it was ordered to be re-sworn within a given time, with costs against the defendant. Gordon v Johnson, 2 Cham. R., 205. 7. Supplemental answer. A defendant neglected to set up a sheriff's sale and deed (part of his chain of title), but evidence thereof was given, and the conveyance put in without objection, so tl.at there was no sur- prize upon the plaintiff ; the Court gavo the defendant liberty to set them up by supplemental answei', if desired. Beattie v. Mutton, 14 Grant, 686. ANTECEDENT DEBT. See Mortgage. 28 APPEALING. APPEALING. See Master— Rkferee- RiTY FOR Costs. -Staying Proceedings — Seou- I. From Chambehs. 1. Time for. 2. Cannot make new case. 3. Order must be drawn np. 4. Order on appeal a Chambers order. 5. Confined to case made before Referee. 6. Act relating to. II. From Court. 1. Jfhere time expired. 2. Making Decree in appeal order of Court. III. From Master. 1 . 6if anted when delay accounted for. 2. For trifling amount. 3. SJwuld be to the Court. 4. Stating grounds of appeal. 5. After long delay. 6. When dismissed without costs. 7. Miscellaneous. IV. From County Court. V. Miscellaneous Decisions as to. 1. Wliere question mie of discretion. 2. By married woman. 3. Appeal Bond. 4. Appeal Books. I. From Chambers. I. (1) Time for. A motion, by way of appeal from an order made in Cham- bers, must be actually made within the foui'teen days limited by the Consolidated Ordei*s ; and it is not sufficient to give the notice witliin the fourteen days. Aliter in the case of an appeal APPEALINO. 29 from a Master's report. Jackson v. Gardiner, 15 Grant, 425 ; S. C, 2 Cham. R., 385. 1. (2) Cannot make new case. A party cannot use affidavits not used before the Secretary, or make a new case in appeal, nor will the Court entertain a motion to reinstate a bill bused on grounds which might have been shewn in resisting a motion to dismiss. Bank of Montreal V. mism, 2 Cham. R., 117. I. (3) Order mmt be drawn up. Before an appeal will lie from the Secretary's decision, the order thereon must be drawn up and entered. Gibb v. Mv/rphy, 2 Cham. K., 132. J* (i) Order on aj)peal a Chambers wder. An order made by a judge, on an appeal from the Secretary, is a Chambers Order ; and if costs or further dii-ections are reserved, they should be disposed of before a judge in Chambers, and the order made thereon entitled " In Chambers." Where, therefore, in such a case the cause was set down, and in the list of causes to be heard on further directions, it was held to be improperly set down, antl the costs of the day given against the party setting it down. Dudley v. Berzaj, 2 Cham K., 460. I. (5) Confined to case made befoi-e Referee. On an appeal from the Referee, the case will be strictly con- fined to that made on the oiiginal motion, and only such plead- ings or other documents as were read then will be allowed to be read. The Court will inform itself what these were, and take notice of its own records and proceedings when necessary. When a question arose as to what pleadings had been read on a motion, the Court sent for the Referee's notes, and was guided by them. Perrht v. Perrin, 3 Cham. R., 452. I. (6) Act relating thereto. See 34 Vict., c. 10. II. Appeals from Court. 30 APPEALING. 1. When time expired. 2. Makivg decree in appeal order of Court. II. (1) fHien time expired. Leave to appeal was given to the plaiiitiif after the expiration of a year, where it appeared tliat delay had been caused by the depositions in the cause having been mislaid by one of the de- fendants, and where the defendants, a banking institution, had in the meantime stopped payment, and their affairs, which were very extensive, had passed into the hands of ti%istees ignorant of the matter. Bank of Upper Canada v. Wallace, 2 Cham. R., 169. A party seeking leave to appeal, after the time limited, must account satisfactorily for the delay, and shew some reasonable grounds why such indulgence should be granted. A party will not be aided by the Court in setting up a technical defence to defeat a claim just in itself. Where leave to a])peal, after the usual time, was asked under circumstances which, in an ordi- nary case, would have been sufficient to sustain the application, but the case sought to be made by the appellant was strictissime juris, and with the view of defeating an equitable claim, fhr motion was refused with costs. Gilbert v. Jarvis, 2 '^hc R., 259. Leave to appeal after the time limited by the ornci's will not be granted, except under special circumstances, and on a « ;ong case accounting for the delay. Denison v. Denison, 2 Cham. R., 333. When a cause had been re-heard, and the original decree affirmed, and an appeal was brought within a year of the decree on reheai'ing : Held, that the appeal should have been within a year of the original decree, and that, in consequence of tho delay, a special application for leave to appeal was neces-sary. Macfarlane v. Dickson, 2 Cham. R., 38. The Court will extend the time for appealing to the Court of Error and Appeal, upon the party appealing shewing reasonable APPEALING. 81 cause for the delay that has taken place. Box v. Provincial Inswance Co., 2 Cham. R., 397. The present practice of the Court, as established by decisions, limits the time for appealing to a year from the date of the original decree, where a cause has been re-heard, and afterwards carried to the Court of Appeal ; but the fact of an application to extend the time for appealing being made before the expiry of a year from the decree on re-hearing, was looked on as fur- nishing cogent reason for a liberal exercise of the discretion vested in the Court to extend the time, and the time extended accordingly. Tyler v. Wehh, 3 Cham. R., 33. To obtain leave to appeal after the time for appealing ha8 elapsed, the party applying must show « special circumstances." Although the time for appealing counts from the date of the original decree, where a cause has been re-heard, and the decree affirmed ; yet the fact that a cause has been re-heard will be taken into consideration on an application for leave to appeal after the time has expired. A party's poverty is not of itself a sufficient excuse for delay, although the Court will not exclude it from consideration, but it will receive such a plea with caution. Duff v. Bairett, 3 Cham. R., 318. The Court, although i-eluctant to shut out a party from the privilege of appealing, will not give leave to appeal after a long lapse of time, and where numerous sittings of the Court of Appeal have been held since the judgment. Damdson v. Boomer, 3 Cham. R., 375. Whei'e a defendant intended to appeal from a decision within the year allowed for the purpose, but deferred appealing at once in order to ascertain the result of a reference ; and the time for giving notice was allowed to pass by a mistake of his solicitor, who resided in Ottawa, and erroneously supposed that he had a yeai- to give the notice ; the Court gave leave, on special terms, to appeal for the following Court. Butler v. Church, 3 Cham. R., 91. 32 APPEALING. i : II. (2) Making decree in appeal order of Court. Semhh, a motion to make a decree of the Court of Appeal an order of the Court of Chancery may be made in Chambers, if it is sought to make the order in the terms of the decree of the Court above ; but, if further directions or new terms are neces- sary to carry out the decree in appeal, the motion should be to the Court. Weir v. Mattheson, 2 Cham. R., 10. III. Appeal from Master. 1. Granted when delay ac^ ounted for. 2. For trifling amount. 3. Should be to Court. 4. Stating grounds of appeal. 5. After long delay. 6. When application for leave dismissed witlunit costs. 7. Miscellaneaus. III. (1) Granted when delay accounted for. Where a proper case was made explaining the delay, leave to appeal from the Master's report was granted, although the time limited for appealing had expired. It is not necessary, on such an application, to shew the suffi- ciency of the grounds for appealing. McQueen v. McQueen, 2 Cham. R., 471. [Note. — See next case.] Held, overruling McQueen v. McQueen, 2 Cham. R., 471, that on an application for leave to appeal from the Master's report, besides accounting for the delay, it is necessary that the party appealing should make out a, prima facie case for appeal. Dick- son V. Avery, 3 Cham. E., 222. Appeals from the Master's ruling, as well as appeals from the Master's repoi-ts, should be to the Court, and not in Cham- bers. Jay V. McDonell, 2 Cham. R., 71. III. (2) For trifling amount. The Court will not entertain an appeal from the Master- where the matter in question is one involving only a veiy APPEALING. 38 trifling amount, and no point of principle is involved ', where, therefore, an appeal was brought where the matter in question was only some $6.00 or $10.00, the appeal was dismissed with . ! i I- 1 5-- .1 CHILD. Castddy o/rJdkl under twelve years of age. The Court has an absolute right in its discretion to give the E 50 COMMISSION. custody of a child under twelve years of age to the mother. The Court exercised this right where the only evidence that the parents were living apart, through the fault of the husband, was the evidence of the wife ; holding, that the Court might, in its discretion, in the interest of the child, direct the custody to be given to the mother in cases where the cause of her living apart is, on her own statement, justifiable ; and the Judge is not prepared to say that he disbelieves such statement. Re Dam, 3 Cham. R., 277. CHOSES IN ACTION. See Sequestration. CHURCH PROPERTY. See Deed, VII. H\ ill m mm CLEARING AND CUTTING TIMBER. See Rector's Lands. CLERICAL ERROR. Held, that a motion to correct a clerical error should be on notice. Simpson v. Ottawa Railway, 2 Cham. R., 12. COMMISSION. Commission to examine witnesses. A commission cannot regularly be issued until after replica- tion filed. Eoyal Canadian Bank v. Cummer, 2 Cham. R., 388. All examinations under foreign commission must be by in- terrogatories, unless otherwise arranged by consent. Gordon v. ElMt, 2 Cham. R., 471. The Master cannot ex parte issue a certificate for a foreign commission. McLennan v. Helps, 3 Cham. R., 193. CONSENr. 51 COMPENSATION. See Sequestration — Dower, V. — Executors, II. — Admi- nistrators, &c. Fw deficiency. See Specific Performance. For services. Bee Principal and Agent. To Trustees and Executors. See Administration Suit — ^Trus- tees — Executors. For growing crops. The growing crops on land are part of, and go with, the free- hold when it is sold. When, therefore, a tenant in possession at the time of sale carried away the growing crops, compensa- tion was granted to the purchaser out of the purchase money, and the same order was made to extend to taxes due on the land and unpaid. Stewart v. Hunter, 2 Cham. R., 335. For want of possession. A motion for compensation for want of possession should be made in Court, not in Chambers. O'Dea v. Sinnott, 2 Cham. R, 446. CONDITIONS OF SALE. See Sale. CONFIRMATION. See Vendor and I-urchaser. w m • ii i ill CONFIRMING SALE. See Sale. CONFLICTING EVIDENCE. See Quieting Titles — Agency — Master's Finding. 1.1 llW CONSENT. A motion which is strictly and properly a Court motion, will m 62 CONTEMPT. not be taken in Chambers by the consent of parties. A motion so made in Chambers was refused, but without costs. Thomj)- son V. Freeman, 4 Cham. R., 1. By SoUdUyr. See Bailey v. Bailey, 2 Cham R., 58. CONSIDERATION. See Deed, V. CONSTRUCTION. \i.e. BUILDING.] Of Esplanade. See Esplanade Acts. [rendering meaning of.] Of Will. See Will. W.' CONSTRUCTIVE NOTICE. See Registry Law— Notice — Practice, CONTEMPT. See Injunction — Attachment. 1 . For not bringing in account. 2. No contempt until order to tliat effect. 3. Clea/ring contempt. 1 . For not hinging in account. Where a party is in contempt for not bringing in accountu into the Master's office, it is a sufficient clearing of his contempt to bring in Ruch accounts, and the sufficiency of them will not be looked into, Clancy v. Patterson, 2 Cham. R., 217. When a party has been committed for not bringing in ac- counts, and it is shewn by certificate that the accounts have since ^-^en brought in, it cannot be urged on a motion for \xl. CONTRACT. 53 discharge that the accounts are insufficient. Nor will the pay- ment of costs be made a condition precedent to his discharge. Clark V. Clark, 3 Cham. R., 67. 2. No contempt until order to that effect. A party is not in contempt for non-compliance with an order of Court until the opposite party by some step brings him into contempt ; if such party omits to do this, he cannot urge the contempt in bar to a proceeding by the party so in default, or urge it in extenuation of his own laches. Gillespie v. Gillespie, 2 Cham. R, 267. 3. Charing contempt. It is a sufficient clearing of contempt if a party has done the act ordered to be done, and paid the costs. It is not necessary that an order of Court clearing his contempt should be made unless he has been in custody, when an order is necessary for his discharge. Dtmcan v. Trott, 2 Cham. R, 487. Where a defendant who had been in contempt for non-pro- duction of deeds, and afterwards produced, filed his affidavits and paid costs of contempt, moved to dismiss, and it was ol> jected that he had not cleared his contempt, no order having been made to that effect, the Secretary overruled the objec- tion, lb. CONTESTANTS. Rights of, under Act fw Quieting Titles. See Quieting Titles. CONTRACT. See SPK(n¥"!c Performance. In restraint of trade. Several incorporated companies and individuals, engaged in the manufacture and sale of salt, entered into an agreement, whereby it was stipulated that the several parties agreed to combine and amalgamate under the name of " The Canadian Salt Association," for the purpose of successfully working th« r 'a Ji K\ r i i mix 11^ 1 SJifN 54 CONTRIBUTION. business of salt manufacturing, and to further develop and ex- tend the same, and which provided that all parties to it should sell all salt manufactured by them through the trustees of the association, and should sell none except through the trustees. Held, on demurrer, that this agreement was not void, as contrary to public policy, or as tending to a monopoly, or being an undue restraint of trade ; that it was not ultra vires of such of the con- tracting parties as were incorporated companies, but was such in its nature as the Court would enforce. The Ontario Salt G: V. The Merchant Salt Co., 18 Grant, 540. CONTRIBUTION. 1. To pay costs of suit to stay waste. 2. By indorsers. 1. To pay costs of suit to stay waste. See Tenant in Comhon. 2. By indorsers. Where two persons indoi'se a note for the accommodation of the maker, and the second indorser knows when he indorses that the first indorser is, like himself, an accommodation indorser, he must share equally the loss occasioned by the maker's default. — Cockbum v. Johnston, 15 Grant, 577. As between accommodation indorsers, the Court will enforce the right of contribution, the same as in cases of other co- sureties. Where a firm of two or more persons indorse in the copart- nership name, the liability as sureties is a joint liability, and not the several liability of each partner. Clipperton v. Spettigue, 15 Grant, 269. Accommodation indorsers^ like other co-sureties, are liable to mutual contribution, unless this liability is controlled by con- tract ; but such a limitation, if stipulated for, is binding. Afit- chellv. English, 17 Grant, 303. A note, indorsed by B. and C, for the accommodation of the CONVEYANCE. 55 maker, being overdue, the maker, to provide funds for taking it up, procured another person, D., to indorse for his accommo- dation a new note, and on his applying to his former indorsers for their signatures, untruly stated that he had sold goods to D., who would be in funds to take up the note at maturity. The note was taken up by Z>., who was the first indorser. Heldf that he was entitled to contribution. McKelvey v. Davis, 17 Grant, 355. D.'s suit for contribution was not brought for five years, nor until C. had become insolvent. Held, that B. must share with D. the loss ; that he might have had his liability ascertained, and might have paid the amount before 7>. sued. Ih. CONVEYANCE. By Insolvent. See Insolvent. To Solicitor. See SOLICITOR AND Client. I. Agreement to Re-sell. • II. Fraudulent. 1. Secret Trust. 2. Costs. 3. PFitness. 4. Improvements. III. Purchaser for Value, &c. IV. As A Marriage Settlement. I. Agreement to Re-sell. In 1838, A. having a life estate in certain land, his wife having the remainder in fee, A. being also owner in fee of pro- perty adjoining, and executions against his lands at the suit of B. and others being in the sheriff's hands, A. and his wife agreed verbally with B. that B. should purchase at sheriff's sale; that they also would execute a conveyance to B., and that he should re-sell to them. Accordingly, B. bought at the sheriff's sale ; and A. and his wife executed a conveyance to B., but the wife was not examined before magistrates until f •m I'-' If t'i M M CONVEYANCE. 1841. At the same time thnt this omission was supplied, two bomls were executed, one by li. for reselling the property to A. and his wife, on payment of the money (the amount of the executions) ; and the other by A. and wife for payment of the money ; tliey agreeing that, in case of default, they would give up possession, and that any intermediate payments should be retaineis. The widow of the grantor in a deed impeached as fraudulent CORPORATION AND CORPORATE SEAL. o7 against creditors was entitled to a legacy under the will of hcv husband. Held, that, notwithstanding such interest on hot- part, she WHS a competent witness to prove notice as agaitiHt the purchasers from the grantee in the impeached deed. II. (4) Improvements. Where a deed is set aside as fraudulent against creditors, a piirchaser from the grantee in tlie impeached deed will not Ito allowed for improvements made by him upon the property. Scott V. Hunter, 14 Grant, 376. III. Purchase fok Value without Notice. A .sale of land was effected, subject to a mortgage created by a former owner. HeJif, that this circumstance did not preclude the purchaser from setting up the defence of a purchase for value without notice. Ciitnpion v. Fairhahn, 15 Gmnt, 674. IV. As A Marriage Setilement. A deed purpoi-ting to be a bargain and sale, in consideration of £1,000, and bearing date the day before the mamage of the grantor to the grantee, was impeached by a subsequent creditor of the grantor. There was no evidence of any prior negotiation for a marriage settlement. The deed was not executed by the gi-antee, and there was no evidence that it was known to her, or any one acting for her, until long after the marriage. The Court of Appeal, however, being satisfied that the deed wrs executed as a marriage settlement, and not considering there was any pr^jof of a fraudulent intent, upheld the deed, and varied the decree made in the Court below accordingly, with costs. [VanKoughnet, C, J. Wilson, J., and Mowat, V.C, dissenting.] Mulholland v. Williamson, 14 Grant, 291. In ap- This vai'ies decree of Court below reported, 12 Grant, 91. CORPORATION AND CORPORATE SEAL. Some of the parties executing a deed were corpoi*ate bodies, and the witnessing clause w.as expressed, " In witness whereof, iil 4 i' 1 1 ■'I H 1 t. IMAGE EVALUATION TEST TARGET (MT-3) T (/ 1.0 !^K* Ui itt Itt 12.2 1.1 S lii IZO •IWU 6" Photographic ScHioes CarparaHon as wan main stiht MllfTM,N.Y. USM (71*)t73-4S03 4^ 58 COUKT. the said parties hereto have hereunto set their hands and seals,"' &e., and the seals were all simple wafer seals. Held, that, in the absence of evidence shewing these not to be the proper corporate seals of the companies, this was a sufficient sealing on the part of the incorporated companies. The Ontario Salt Co. V. The Merchants' Salt Co., 18 Grant, 581. The agreement was not under the corporate seal. The com- roy received $5,500 for their claim to the property, by way oi: :c>m promise, from a director who had availed himself of the puiirtifif 'e communication to the directors, to obtain secretly a § the property to himself peraonally. It was held, that L-itf u^itifi* was entitled to share this sum, and that the want of the seal was no defence. McDonald v. The Upper Canada Mining Company, 15 Grant, 179. See also Hamilton v. Dennis, 12 Grant, 325. CORPUS. Power to tenant for life to dispose of. See Will. Legacies charged on. See Will. COUNTY COURT. See Costs. Appealing from. See Appealing, IV — Jurisdiction, 5. COUNTY TREASURER. County money should be deposited to a separate account, and should not be unnecessarily mixed up with the treasurer's private money. Peers v. Oxford, 7 Grant, 472 COURT. Appealing from. See Appealing, II. COSTS. 59 COSTS. Of Administration. See Administration. Of Executors. See Exbcutors. See also County Court Suit — Conveyance, IT. 2 — Dama- ges, 4 — Demurrer, 6 — Infants — Information — Dower — Postponing Hearing — Principal and Agent — Taxa- tion. And 8)0 passim the subject out of which the ques- tion of costs arises. Or Costs Generally. Miscellaneous Cases Relating to. 1. Taxation of. 2. County Court. 3. Eetaxation. 4. Miscellaneom. 5. fFhen further prosecution of suit becomes unnecessary. 6. Of a former suit for same cause. 7. Where Crown a party. 8. Vendor and Purchaser — Shelving titte. 9. Where refwed. 10. Interlocutory. 11.0/ Executor de son tort. 12. Time for rendering bill of. 13. Issuing fi. fi. for. 14. Of Guardian. 15. Of Infants. 16. Of Executors disclaiming — Assignee disclaiming. 17. Of Defendants severing in defence. 18. 0/ irregularity in setting down. 19. Of ex parte application — 0/ abandoned motion — Of not proceeding to healing. 20. 0/suit when subject matter settled. 21. O/bill unnecessary filed. 22. Counsel fee, when taxable. 23. When reused to an Executor. 24. When refused on ex parte aj^lieaiion. 25. 0/ Plaintiff claiming a wrong construction. 60 COSTS. H6. County Court jurisdktim. 27. Of partnership accounts. 28. When refused to either party. 29. Refused to a successful Appellant. 30. Against estate of person rtot Trustee. 31. Of unnecessanj proceeding. 32. Of Chambers motion made in Cmtrt. 1. Taxation. Where, on an application by a solicitor for a taxation of his bill of costs, the client disputed the retainer as to the whole bill, and also set up the Statute of Frauds, it was held that the Court had jurisdiction to refer these defences to the Master. An order of course for the taxation of costs is not to be dis- charged for the omission therefrom of any reference to defences of which the petitioners had no previous intimation. Re Bacon, 3 Cham, R., 79. Practice defined as to the manner in which the Master will tax solicitor's costs for professional FiOrvices rendered in the sale of lands, and collection and transmission of the purchase money. In re Richa/rdson, 3 Cham. R., 144. An order will not be granted for a taxation of costs before a Master in an outer county even on a consent. Re Solicitors, 3 Cham. R., 90. 2. County Court. Where a solicitor has funds of a client in his possession, or has papers over which he claims a lien, he is subject to the summary jurisdiction of this Court, which will order delivery and taxation of his bills, and the payment over of any balance, notwithstanding that the services for which he claims have been wholly in County Court proceedings. Re Prince, 3 Cham. R, 282. 3. Relaxation, where refused. Where there were two suits by a solicitor for the same ob- ject, the Master refused in one of the two suits, without a COSTS. 61 special order, to tax as between party and party, more than part of the costs ; and it appearing that, as between solicitor and client, no part of that bill could have been recovered, the Court refused to interfere with the taxation. Spence v. Clemow, 15 Grant, 584. Although the Courts will interfere and order a retaxation of costs, even after a judgment has been obtained for them when the overcharges are gross and excessive, yet a client must come promptly, more especially when the relationship of solicitor or client has ceased to exist, to obtain such relief, and it will not be granted if the amount overpaid is small. Where the alleged excess overpaid was only $15, making about one-twelfth of the whole bill, and the application was not made until after great delay ; the Referee refused an order for retaxation, and his decision v^as upheld on appeal. Re Scott, 3 Cham R, 467. 4. Miscdlaneous. Where a defendant has obeyed an order, and tendered a sufficient sum for the costs thereof, which the plaintiff'fi solicitor deolinod to accept, the defendant was given his costs of motion, less tixe sum tendered. Franklin v. Bradley, 2 Cham, R., 444. The Court will not hold a party who has been in contempt for not obeying an order in gaol for non-payment of the costs occasioned by his contempt. Pherrill v. Pherrill, 2 Cham. R., 444. A party appearing to ask costs on a notice irregularly sei'ved does not thereby waive the irregularity. Fiskm v. Smith, 3 Cham. R., 74. 5. When further prosecution of a suit becomes unnecessary. Where the object of a suit has been attained, the proper course is for the plaintiff, if he seeks costs, to apply to the defendant to have the question of costs disposed of on motion ; unless he does so, he will not be given the extra costs occa- sioned by going on to a hearing. Qusry : Will such a motion 62 COSTS. be entertained at all, except by consent. Semble, if the defen- dant refuses consent to the costs being disposed of on motion, the plaintiff will get his extra costs of going to hearing. Wtbh V. McArthwr, 3 Cham. R., 364. 6. Co8ts of a former suit for same cause. Where, after notice of motion to stay proceedings until the costs of a former suit for the same cause of action should be paid, such costs are paid, the costs of the motion to stay pro- ceedings will be made costs in the cause. lAtUe v. Hawkins, 3 Cham. R, 78. 7. Where Crown a party. The rule that the Crown neither claims nor pays costs is that which the Court favours as most consistent with the dignity of the Crown, and practice of the Court ; and where the Crown is made a party in consequence of the discharge of an international duty, and out of courtesy, or for form's sake, having no real or substantial interest in the question at issue, and no interest would have suffered, and no loss ac aed by the Crown dis. claiming or not appearing, the Court will certainly not order costs to be paid to the Attorney-General. United States v. Denison, 2 Cham. R., 263. 8. Vendor and Purchaser, shewing good title. A purchaser, whose ve nistration of his testator's estate, and, upon the hearing, on further directions, no reason was shewn for invoking the aid of the Court, and the guardian for the infants did not object in any way to the course taken by the executor, the Court refused both parties their costs. Springer v. Clarke, 15 Grant, 667. 24. fFhere granted on ex parte appUcaiim. Costs incurred on setting down a cause, and afterwards coun- termanding notice of setting down, were granted on an ex park application. Armour v. Nohle, 3 Cham. R., 99. 26. 0/a Plaintiff claiming a wrong construction, h aside a convey- ance executed under a power of attorney from her alleged to have been forged. Brouse v. Crane, 14 Orant, 677. 6. Functions of Court as to the rights of claimants to patent. It is no part of the functions of this Court to take evidence, or find facts, upon which the officers of the Crown may act in the disposition of the rights of claimants to grants of Crown lands. Brouse v. Crane, 14 Orant, 677. 72 DAMAGES. CROSS-EXAMINING A DEFENDANT. See Evidence — Practice. CO-SURETIES. See CONTEIBUTION. CUTTING TIMBER AND CLEARING. Construction of covenant as to. See Rectokb' Lands. CUSTODY OF CHILD. See Child. DAMAGES. L For detention of machinery. 2. When amount amaU. 3. Jurisdiction where wrongful act discontinued. 4. Costs. 1. For detention of Machinery. A debtor, whose business was the manufacture of reaping nKichines, conveyed his personal property to trustees ; and hav- ing afterwards compounded with them and his other creditors* the trustees ent..xt)u into a covenant to re-assign to him the property on certain terms and conditions. The debtor filed a bill, alleging, amongst other things, a breach of the covenant, and claiming damages. Held, that he might be entitled to dams^es for the detention of the machinery necessary for the carrying on his business ; and it was referred to the Master to inquire into the nature of the personal property withheld, and if it was machinery, or chattels of a like nature, to inquire and report as to dama|;es. Scott v. fVilson, 16 Grant, 182. 2. If^here anumnt small. The plaintiff filed a bill for the protection of the timber on certain land which he claimed to own ; at the hearing, the DECISIONS APPEALED, ETC. 73 Court retained the bill, with liberty to the plaintiff to biing an action ; the plaintiff brought the action, and recovered a verdict for $20. It appearing that the question in issue was the plaintiff's title to the land, he was held entitled to a decree, with costs, notwithstanding the small amount of damage which had been actually done by the defendant. McAlpine v. Eckfrid* 16 Grant, 595. 3. Jurisdiction where wrongful act discontinued. Where a plaintiff filed a bill for an injunction and payment of damages ; and it appeared that the wrongful act complained of had, without his knowledge, been discontinued before the suit was commenced : Held, that the Court had not jurisdiction to make a decree for the damages. BrocMngton v. Palmer, 18 Grant, 468. 4. Costs. The defendant having neglected to inform the plaintiff of the discontinuance, though applied to respecting it, before suit, the bill was dismissed without costs. lb. DECISIONS APPEALED, AFFIRMED, OVERRULED, OR RESTRICTED. DECISIONS AFFIRMED, AND THE SUBJECT MATTER TO WHICH THEY RELATE. Ahd V. MePherson. 18 Grant, 437. AflBrms decree, 17 Grant, 23, Patent for Invention — Novelty. Attmuiy-General V. Eastall 18 Grant, 138. Affirms decree. [Spragge, C, and Mowa, V.C, dissenting.] Jurisdiction — Recognisance in Criminal Cases. Bank of Upper Canada v. Fanning. 18 Grant, 391. Affirms, 17 Grant, 514. Tax Titles. Bank, Upper Canada, v. Wallace. Mortgage. Affirms de- 74 DECISIONS APPEALED, ETC. cree ; holding as reported in the report on appeal, 16 Grant, 280. See Mortoaob, &o. Barker v. Ecdes. 18 Grant, 440. Affirms decree, 17 Grant, 631. [GwYNNE, J., dissenting.] Mortgage. Purchasb op Equity of Redemption. See Mortgage, &c. BoiUton V. Church Society. Affirms judgment overruling de- murrer. Parties. See Parties — Pleadings— Judges. Box V. Provincial Inswranct Co. 18 Grant, 280. Affirms decree, 15 Grant, 337. [Spraogb, C, Morrison, J., and Gwynne, J., dissenting.] Sale of Wheat, &c. — Warehouse- man. Butler V. Church. 18 Grant, 190. Affirms decree, 16 Grant, 215. [Draper, C.J., Gwynne, J., and Galt, J., dis- senting.] Married Woman— Statute of Frauds- Practice. Connor v. Douglass. Tax Sale. IS Grant, 456. Affirms decision. Judgment on hearing before the Chancellor, with judgment on appeal, reported as above. Crippen v. OgUvie. 18 Grant, 253. Affirms, 15 Grant, 490. Release of Equity of Redemption. Davidson v. Boomer. 18 Grant, 475 Affirms decree. Will — Dower — ^Annuity in lieu of. Heenan v. Dewar. 18 Grant, 438. Affirms decree, 17 Grant, 638. Acquiescence — Nuisance. See these headings. Kirkpitrick v. lister. Affirms decree made on the original hearing reported, 13 Grant, 323. Rector. See Rectors' anj> RsCTORt Lands. Case in appeal reported, 16 Grant, 17. McGregor v. Rapdje. 18 Grant, 446. Affirms decree, 17 Grant, 38. Marriage Settlement. See Marriage Settle- ment. Martin v. Martin. 15 Grant, 586. Affirms decree reported on original hearing, 12 Grant, 500. Will. See Will. Moswpp V. Maton. 18 Grant, 453. A& to sale ri' goodwill, a CO DECISIONS APPEALED, ETC. 75 a question in the cause, affirms, 17 Grant, 360. Varies as to covenant in restraint of trade. Ryhert v. Miller. 14 Grant, 1. Purchase for Value WITHOUT Notice. Affirmed on rehearing. 13 Deer., 1867. U Grant, 123. Smith V. Hatti. 15 Grant, 473. Ferry. Sustains judgment overruling demurrer reported, 13 Grant, 696. See Ferry. Stephens v. Simpson. 18 Grant, 594. Affirms decree, 12 Grant, 493. [A. Wilson, J., dissenting.] Registry Laws — Possession. Totten V. Douglass. 18 Grant, 341. Ai&rms decree, 16 Grant, 243. [Mowat, V.O., dissenting.] Mortgage — Fraui> ON Creditors — A.ssignee for Value without Notice. Washburn v. Ferris. Fraud — Trust. See Fraud. Affirms decree reported. 14 Grant, 514. Case in appeal reported, 16 Grant, 76. DECREES VARIED, AND THE SUBJECT MATTERS TO TO WHICH THEY RELATE. Hendrey V. English. 18 Grant, 119. Varies decree. Mill Dam — Parol Agreement. Lindsay Petroleum Oil Company v. Hurd. 17 Grant, 116. Varies decree, 16 Grant, 147. [Spragge, C, and Mowat, V.C., dissenting.] Vendor and Purchaser — Agency — Re- payment OF Profits. Mossopp V. Mason. 18 Grant, 453. Varies, 17 Grant, 360. Ajb to Covenant in Restraint of Trade. Mvlholland v. Williamson. 14 Grant, 291. Varies decree of Court below, reported, 12 Grant, 91. [VanKouohnet, C, J. Wilson, J., and Mowat, V.C, dissenting.] Fraudulent CONTEYANCES — MaRRIAOE SETTLEMENT. See CONVEYANCE — Marriage Settlement. 78 DECISIONS APPEALED, ETC. DECREES REVERSED, AND THE SUBJECT MATTERS TO WHICH THEY RELATE. Bank, British North America v. Matthew*. 8 Grant, 486. •Judgment Creditor — Attachment of Equitable Choses in Action. Overruled by Oilbert v. Jarvis, 16 Grant, 265. Bank, Montreal, v. Little. 17 Grant, 360. Reverses (on re- hearing). 17 Grant, 313. Sale of Goodwill — Injunction — Laches. Beamish V. Barrett. 16 Grant, 318. Beverses decree. ^Dra. PER, C.J., VanKoughnet, C, and Spragge, V.C, dissc :xting.] Riparian Proprietors — Injunction. Gilbert v. Jarvis. 16 Grant, 265. Reverses decree of Court below, and overrules. Bank B. N. A. v. Matthews, 8 Grant, 486. Heward v. Heward. 16 Grant, 516. Will — General De- vice — Possession. Reverses decree of Court below. Lewis V. Bobson. 18 Grant, 395. Reverses decree. Parol Agreement. McDonald v. McDonald. 16 Grant, 37. Reverses decree, 15 Grant, 645, Lunacy — Vendor and Purchaser. (Sfee '^' tpective headings. McDonald v. McKay. 18 Grant, 98. Reverses decree. [Draper, C.J., and Spragge, C, dissenting.] 15 Grant, 391. Timber Limits — Statute of Frauds. McLeod V. Orton. 17 Grant, 84. Reversed on appeal. Parol Agreement. Monk V, Kyle. 17 Grant, 537. Reverses decree of Court below. Mortgage and Agreement to Re-Sell. Mutchmore v. Davis. 14 Grant, 346. Reverses judgment of Court below, allowing demurrer. [A. Wilson, J., and Mowat, V.C, dissenting.] Both judgments reported as above. Cbown Patents, Repeal of — Pleading — Demurrer. DECREE. 77 Towns of Dundas and Hamilton v. Milton. Road Company. 18 Grant, 311. Reverses decree reported, 17 Grant. 31, [Spraoob, C, and Mowat, V.C, dissenting.] Canal Inter- SBCTiNo Road — Injunction. See Canal — Injunction. DECREE. On Prcecipe, Appeal from. See Practice. Assignment of. See Assignment. Amending Decree. See Amending. Against married woman. See Married Woman. See also Dower, III. 1. I. On Pr.£cipe. II. Setting aside and Varying. 1. Mistake in direction in. 2. Pro confesso. 3. Improperly obtained — Concealment — MisrepreserUalion. 4. Varying. III. For Sale. IV. Time for proceeding on. V. On Bill and Answer. VI. Carriage op. VII. Decree in former Suit, Defence of. I. On Fiubcipe. Where, in a mortgage suit, a defendant by answer admitted the making of the mortgage, but denied an alleged agreement to pay an increased rate of interest, and set up a tender of the amount he contended was properly due on the mortgage, and claimed his costs, it was held not to be a case where the plaintiff was entitled to a prascipe decree. The plaintiff's solicitor asked that, if the Referee considered the decree erroneous, it might be amended by inserting a direc- tion for the Master to enquire as to the alleged tender. Held, 78 DECREE. 'that such an amendment could not be made, the decree being one which could not be issued on prcecipe, and that a decree so issued could contain no special directions or provisions. Ross V. Voder, 3 Cham. B., 236. II. Setting aside and Varying. (1) JUistake in direction. On a bill to enforce a vendor's lien, the decree which, through oversight, directed that, in default of payment of the amount to be found due by the Master, an execution against the goods, &c., of the original purchaser should issue, without first selling the land, was set aside, at the instance of the purchaser, after the execution had been issued and placed in the hands of the Sheriff J the defendant, thotigh served with the bill, having taken no proceedings in the case. Switzer v. Ingham, 14 Grant, 287. II. (2) Pro confesso. A motion to set aside a decree obtained by default, and not on the merits, was held to be properly made in Chambers. Kline v. Kline, 3 Cham. R., 79. II. (3) Improperly obtained — Concealment — Misrepresentation. A final decree of foreclosure had been obtained in a suit where the true position of parties was not disclosed, or material facts had been misrepresented, and a bill was subsequently filed to enforce a claim against the party beneficially interested as plaintiff in that suit. The Court refused to make a decree other than would have been proper had the true position of the , parties to that suit been stated. fFilson v. Hodgson, 14 Grant, 543. II. (4) Varying decree. An incumbrancer, made a party in the Master's office, under the General Orders of the 6th of February, 1865, cannot, after the lapse of fourteen days from the service of the decree, file a petition to vary the decree, without first obtaining leave by an application in Chambers. Boe v. Stanton^ 16 Grant, 137. DEDICATION. 70 III. For Sale. Where, under a decree for sale, certain lands were sold, aiA several years after, other lands were discovered affected by the same judgment, they were ordered to be sold. Dickey v, Herm, 2 Cham. R, 400. IV. Time fob proceeding on. The fourteen days given to proceed on a decree count from the pronouncing, not the entering of the decree. Ernes v. Ernes 2 Cham. R. 21. V. On Bill and Answer. When a cause is heard on bill and answer, the plaintiff has the right of electing to pay the costs of the day, and file repli- cation and go to hearing in the usual way ; and even in a case where he had accepted the decree on bill and answer, and on coming to settle minutes, was dissatisfied with it, he was allowed the same option, on the ground that he could have exercised it on a re-hearing, or on appeal. Russell v. Brecken 2 Cham. R., 253. VI. Carriage of. No notice is necessary under No. 211, Consolidated Orders, to authorize the defendant to take the carriage of a decree out of the plaintiff's hands. Smith v. Henderson, 2 Cham. R, 304 ; Ernes v. Ernes, 2 Cham. R, 54. VII. Decree in former Suit, Defence of. See Specific Performance. DEDICATION. In a new country like Canada, user of a road by the public is not to be too readily treated as evidence of an ** intention " on the part of the owner to dedicate it. Dwniop v. The CowUy of York, 16 Grant, 216. 80 DEED. DEED. Bill to deliver up. See Statute of Frauds. Lost. See Quibtino Titles. See also Conveyance — Fraud— Husband and Wipe - Mar- ried Woman — Sheriff's Deed. I. Confidential Relationship. II. Undue Influence. III. Rectifying. IV. Where set aside. V. Parol Aoreement as tg Consideration. VI. Alterations in. VII. Of Church Property. VIII. Married Woman's Deeds. IX. Void in Part. I. CONFIDQNTIAL RELATIONSHIP. A widower, a shrewd, thrifty man, possessed of considerable real and personal estate, being apprehensive of a suit against him for breach of promise, determined to convey his land to his children, which be did, taking conditional notes for the purchase money, &c. The children did not occupy any confidential re- lation towai^ds him, and the transaction was his own suggestion, without any influence or pressure on their part. What he retained was more than ample for his wants. Held, in a suit instituted by the father, seven years afterwards, that the deeds could not be impeached. Luton v. Sanders, 14 Grant, 537. II. Undue Influence — Father to Son. In the case of a deed of gift from a father to a son, there is no presumption of undue influence in obtaining it. Where a father made a deed of gift of all his property to his son, and there was no evidence of undue influence on the part of the son, or of his having taken an unconscientious advantage of his father, and the Court was satisfied that the deed had been duly executed, the son was not required to prove that the ., r, in making the deed, was aware of its nature and oonsa- ffttbe DEED. 81 quenoes, and ihe deed was upheld. Amutnmg v. Armttrong, 14 Grant, 628. III. Bbotiftino Deed, &o. On a separation of townships, a cf.itain sum was found due to one of them (A.) hj the other two, which remained united ; and an instrument was executed acknowledging the amount to be due, and declaring it payable out of a fund supposed by all parties to be coming from the county to the two townships. It was subsequently discovered that no such sum was coming from the county, and the separated township (A.) thereupon filed a bill to correct the instrument, by making the debt pay- able generally. The defendants set up the mistake, and alleged that the restrictions as io the county fund was of the essence of the whole transaction ; but the Court being satisfied that the . DELIVERY OF POSSESSION. See Possession. Where a decree, by oversight, contained no direction as to giving up possession, a su) jJomental order, directing the d'-M- very up of possession, was made on payment of costs. Mason V. Seeney, 2 Cham. K., 30. DEMURRER AND DEMURRING. DEMURRER AND DEMURRING. 87 See Pleading — Parties — Contract in Restraint op Trade— Multifariousness — Crown Patent. 1. Filing pending motion. 2. Omission of formal part. 3. Time given to answer. 4. Want of parties and want of equity. 5. Coats. 6. Bill not cha/rging notice. 7. Where overruled. 8. On several grounds. 1. Filing pending motion. Demurrer filed pending motion to take pro con., held to be in time. White v. Baskerville, 2 Cham. R., 40. 2. Omission of formal part. The omission of any formal part in the demurrer (such as the heading thereof) is an irregularity, which entitles the plaintiflF to have the demurrer taken off the files, unless an amendment is permitted. Bennett v. O'Meara, 2 Cham. R., 167. 3. Time given to answer, not to demur. Further time given to answer will not carry with it a right to demur after the usual time. Where a plaintifi"s solicitor had given further time to answer, and, instead of answering, the defendant's solicitor filed a demurrer, the demurrer was ordered to be taken off the files. Boultbee v. Cameron, 2 Cham. R., 41. The giving time to answer does not authorize the defendant to demur after the time for answering has expired. Chamberlain V. McDonald, 2 Cham. R , 204. 4. Want of parties, and want of equity. Where a demurrer is filed for want of parties, as well a3 for want of equity, the question of parties must be disposed of before the demurrer for want of equity can be argued. Malcolm V. Malcolm, 2 Cham. R., 200. w •i 88 6. Coats. DEPOSIT RECEIPT. A plaintiff amending his bill after service of a demurrer, and before the same has been set down for argument, although after a longer period than eight days has elapsed, is liable for 20s. costs only, and not for taxed costs. 3 Cham. R., 190. 6. Bill not charging notice. The trustee of a mortgage, who had no authority to transfer it, did nevertheless sell it to a third person. Held, that a bill impeaching the transfer was not demurrable for not charging that the purchaser had taken the transfer with notice of the trust. Ryckman v. The Canada lAfe Assurance Co., 17 Grant, 560. 7. Where overruled. A bill having been filed on behalf of cestuis que trust, im- peaching the conduct of a trustee, a demurrer thereto, because the cesi/ais que trust were not parties, was overruled. Ih. 8. Several grounds of demiwrrer. A demurrer was filed for want of parties, and for want of equity ; and on the argument it was admitted that the bill was defective as to parties. The Court refused to allow the other question to be argued until the bill was made perfect as to parties, and gave the plaintiff liberty to amend on pa^Tnent of costs. Malcdm v. Malcolm, 14 Grant, 165. DEPOSIT RECEIPT. A condition, on a bank deposit receipt, that the receipt should, on payment, be given up to the bank, may not be void, but it does not entitle the bank to retain the money, in case the receipt is not forthcoming ; the depositor is entitled, on proof of loss and indemnity (if required), to relief in equity. Bank of Manr- treal v. Little, 17 Grant, 685. Id rter |fer 3ill DEVISE. DEPOSITIONS. 89 A motion to read the depositions taken in another cause between other parties must be made on notice. A motion for such an order made ex pwrU was refused. Dunlop V. The Corporation of York, 2 Cham. R., 417. DEPUTY REGISTRARS. See Local MxsTERr DETENTION OF PERSONAL PROPERTY. See Dauaqes. DESTROYED BOND. The jurisdiction of equity in the case of lost bonds, exista also in the case of bonds which have been destroyed. The County o/Frontenac v. Breden, 17 Grant, 645. See also Principal and Surety, U. DEVISE. See Will — Administrator, &c. — Dower, III. 2 — Ezecu TORS. I, General Devise. II. Op Lands Contracted for. III. To Widow. I. General Devise. A person having a power of attorney to sell certain lands,, entered into possession after the death of the owner, with an intention to acquire the title, and died in possession, but before his possession had ripened into a title as against the represen- tatives of the true owner : Held, that he had such an interest as passed \mder a general devise in his will. Held also, that m bISCHARGE. the devisees were entitled to claim the property in equity, as against the testator's heirs, who had gone into possession, but that a suit for the purpose could be successfully resisted by showing sufficient length of possession by the heirs after the testator's death, to give a title as against the plaintiff. Reward V. Reward (in Appeal), 15 Orant, 516. II. Of Lands Contracted for. A testator devised all his estate, real and personal, to his wife. At the time of making the will, he was lessee, with a right of purchase, of certain lands on which, after the execution of the will, he paid the balance of purchase money due, and obtained a conveyance thereof from the lessor. Hetd, that the subse- quent acquisition of the fee was not a revocation of the devise, and that the widow was beneficially entitled to the land so pur- chased , but that the legal estate therein had passed to the heirs at law. Sinclair v. Broiim, 17 Grant, 333. III. To Widow. Where a testator devised one parcel of land to his wife in lieu of dower, and another parcel without expressing that it was to be in lieu of dower, and then devised his remaining lands to •other parties, and the will contained other evidence shewing an intention that such last mentioned devises should be free from dower ; it was held that, on the widow electing to take dower, she forfeited not only the first mentioned parcel of land, but also the other. Stewart v. Hunter, 2 Cham. R., 336. sarilj Tl cont as to takii to tlJ the hiwj judj Of' I it,.-/ . ' ■ v>'* •SW'.4** DISCHARGE. Of one of several joint debtors. The plaintiff recovered a judgment against two defendants, each of whom made a conveyance of his property. The plaintiff filed bills impeaching the conveyances respectively as fraudulent ; in the one suit the plaintiff obtained a decree ; and the other 49uit he settled, consenting to the bill therein being dismissed without costs. Held, that these circumstances did not neces- DISMISSING BILL. 91 sarily imply a settlement or discharge of the debt. Dewa/r v. Sparling \8 Grant, 633. The only further evidence of the terras of settlement was contained in a letter from the plaintiff to his solicitors, stating, as to the second suit, that he had settled with the defendants, taking $45 costs, and agreeing not to prosecute the suit, or look to the defendants therein for any portion of the judgment ; and the letter inquired, " What about lis pendens ? Will not bill have to be dismissed to have it removed 1" Held, that the judgment against the other debtor was not discharged. lb. Of Surety. See Principal and Surety. DISCOVERY. See Examination, I. Principal and Agent. Ordinarily, a bill for an account will not lie by an agent against a principal. James v. Snarr, 15 Grant, 229. In Injunction cases. Although, since the Common Law Procedure Act, bills for discovery in aid of defences at law are rare, yet they will lie ; but in such a case the plaintiff cannot move for an injunction to restrain the proceedings at law until he has filed interroga tories ; under special circumstances, however, the Court directed the defendant to submit to an examination in aid of such motion, or, in default, ordered the injunction to go. James v. Snarr, 15 Grant, 229. Of new Evidence. See Quieting Titles. DISMISSING BILL. See Lis Pendens. the practice in certain cases, and under the following circumstances : — 92 DISMISSING BILL. 1. Ina redemption suit. 1. (a) After replication. 2. Ex parte after default. 3. By a surviving defendant. 4. fFhere claim satisfied. 6. After defendant had put in an insufficient affidavit on production. 6. By defendants recently added. 7. Discretionary with Court. 8. Plaintiff let in after order to dismiss. 9. Where office copy not served. 10. After decree. 11. fFhere order to dismiss refused. 12. fFhere delay through mistake of solicitor, 13. At the hearing. 14. On further directions. I. Ina redemption suit. In a redemption suit, where one of the two defendants had died, a motion was made on part of his executors and of another defendant to dismiss for want of prosecution — the same solicitor appearing for both. Notwithstanding some delay on the part of the plaintiff, which was not fully accounted for, the order was made in the alternative, that he revive and go to hearing on terms, or be dismissed. Held, in accordance with the decision in Spawn v. Nelles, 1 Cham. R., 271, that a defendant is not obliged, after replica- tion filed, to set the cause down for hearing in order to have the bill dismissed, but that he may apply in Chambers for an order to dismiss for want of prosecution. Semble, where a suit abates by the death of one of the defen- dants, the defendant may move to dismiss for want of prosecu- tion, without moving that he revive ; but if deceased defendant and the surviving defendant be both represented by the same solicitor, the order will be to revive or bill dismissed. Bice v. George, 2 Cham. R, 74. 1. (a Sel after 2. El W| and the that I Bur DISMISSING BILL. 9a 1. (a) After replication. Semble, also, a motion to dismiss will be entertained even after replication is filed. lb. 2. Ex parte after default. Where defendant had moved to dismiss the plaintiff's bill, and the plaintiff had asked for time, which was granted, but the plaintiff failed to proceed within the time given : it was held that the defendant could move ex parte for the order to dismiss. Bums V. Chiaholm, 2 Cham. R., 88. Where security for costs is ordered to be perfected within a certain time, or the bill be dismissed, an order to dismiss may be granted ex parte on a certificate that no bond for security has been filed. McCarroll v. McCarroll, 2 Cham. R., 380. 3. By a surviving defendcmt. One of the surviving defendants may properly move to dis- miss, though suit has become abated by the death of another defendant. Kelly v. MacUem, 2 Cham. R., 132. 4. Where claim satisfied. As to dismissing bill, where claim satisfied, eee McNab v. Morrison, 2 Cham. R., 133. 5. After the defendant has put in an insufficient affidavit on pro- duction. The fact that a defendant has put in an insufficient affidavit on production is no bar to his moving to dismiss. Gillespie v. Gillespie, 2 Cham. R., 267. 6. By defendants recently added. WTiere a motion to dismiss was made by certain defendants, who had been made parties by amendment at a comparatively recent date, delay having occurred previously in the conduct of the cause, they were not permitted to shew such delay as a ground of dismissal, and an order to dismiss made by the Secre- tary, whose attention had not been called to the fact of the 94 DISMISSING BILL. parties moving having become parties at a recent period, was reversed, but with costs against the plaintiffs, they having been guilty of delay. Tfie Upper Canada Mining Company v. The Attorney-General, 2 Cham. R., 207. 7. Discretionary with Court or Judge. Where defendants had been dilatory in obeying the order to produce, and refused to go down to heaiing by consent, when plaintiff, being too late to go down otherwise, applied for a consent, an order to dismiss was refused, and, under the same circumstances, an order to open publication, and for leave to set down caiise for the following examination and hearing term, was granted. Jeffs v. Orr, 2 Cham. R.. 273. 8. Plaintiff let in after order to dismiaa. When a plaintiff swears to a good case on the merits, the Court will, in its discretion, give him an opportunity to hear his case on the merits, even after an order to dismiss has been properly granted. Rees v. The Attorney-General, 2 Cham. R., 300. 9. Wlure office copy not served. If a bill is filed, and no office copy served within the period limited for service (three months), the bill will, on application, be dismissed. It is no answer to a motion to dismiss, under such circum- stances, that the bill was filed previous to 1864, when the order limiting the time was passed. Moore v. Boseburgh, 2 Cham. R., 406. 10. After decree. A bill cannot be dismissed, even by consent, after a decree has been made in the cause. Ontario Bank v. Campbell, 2 Cham. R., 458. 11. JFhere refused. On a motion to dismiss the bill of a married woman, the DISMISSING BILL. 95 Court refused to count against her time which had been lost in consequence of an order obtained by the defendant requiring her to name a new next friend. Where the defendant, having anticipated the time for answer- ing, and an insufficient affidavit on production, was filed just in time to leave the plaintiff a single day before giving notice, supposing no amendments required, the Court refused a motion to dismiss. Poole v. Poole, 2 Cham. R., 475. 12. JFhere delay through mistake of solicitor. A bill was filed by churchwardens, and, during the progress of the suit, the churchwardens were changed at the vestry meet- ing ; the new churchwardens were not made parties. The suit not being brought to a hearing within the time required by the practice, it was held that a notice to dismiss the bill served on the plaintiffs* solicitor was regular. Quaere, whether it was necessary to make the new churchwardens parties. On a motion to dismiss, it appeared that the case had not been brought to a hearing through an error in judgment of the plaintiff's solicitor, held that it was proper to take iuto account such error in considering the application in connection with the other circumstances of the case. McFeeters v. Dixon, 3 Cham. R., 84. 13. At the hearing. A cause having been brought on to be heard, it was found that a pro confesso note against one of the defendants had been waived by amending the bill, the plaintiff moved to dismiss the bill as against such defendant, without the dismissal being equivalent to a dismissal on the merits, and the Court granted the motion, and made a decree saving the rights of the defen- dants. Waddell v. McGinty, 15 Grant, 261. 14. On, further directions. On further directions, a bill was dismissed with costs as respected some of the original plaintiffs, they having no rights to sustain such a bill. Qray v. Hatch, 18 Qrant, 72. i1 p. ;1 V : f? 1 M ^^^^^^H r) It*! ; I'l ? ' ^^^^^^^^H ?''.^ ■ si • ilertion of a candidate, will make his election void. When all the accounts and records of an election are inten- tionally destroyed by the respondent's agent, even if the case be stripped of all other circumstances, the strongest conclusions will be drawn against the respondent, and every presumption will be made against the legality of the acts concealed by such conduct. Where bribery by an agent is proved, costs follow the event, even though personal charges made against the respondent have not been proved, there having been no additional expense occa- sioned to the respondent by such personal charges. Re Hunter, County of Grey (South Hiding) Election Petition, 8 U. C. L. J., 17, 4 Cham. R. ENDORSING PAPERS. An irregularity in the endorsement on pleadings of the name and place of abode of the solicitor filing the same is waived by demanding and receiving a copy of such pleading, Bennett v O'Meara, 2 Cham. R., 167. Where the plaintifi"s solicitor had been changed, and an order for such change served upon the defen»jection that a proceeding subsequently taken was not endorsed with the EQUITABLE ESTATES. 105 name and place of business of the new solicitor was overruled- McDonell v. Mining Co., 2 Cham. B., iOO. Under General Orders 40 and 41, it is necessary that the names of the solicitors, and if agents, the names also of the prin cipals for whom they act, should be endorsed on all the papers served in the suit ; the provision in Order 41 only renders it unnecessary to endorse the " place of business " on subsequent papers after it has been endorsed on the first paper served. Coates V. Edmonson, 2 Cham. B., 439. Quieting Titles Act. ENTAIL, BARRING. Whether a mortgage in the short form, under the Statute 27 and 28 Yic, ch. 31, executed by the tenant in tail, has the effect of barring the entail. — Qucere. Be Dolsen, 4 Cham. R., ENTITLING PAPERS. See Affidavits. Where the aflSdavits on which an allowance of an appeal from a County Court Judge was sought, were not entitled in any Court, they were not allowed to be read. Be Sharpe, 2 Cham. B., 67. EQUITABLE ASSIGNMENT. See Assignment, I. II i! EQUITABLE ESTATES. The interest of a debtor in land, bought from the Crown, but for which, at the time of his death, he had not fully paid, and had not obtained the patent, is available in equity for the benefi* of his creditors ; and their right is not destroyed by a friend of the heirs paying the balance of the purchase money, and procur- ing the patent to issue in the names of the heirs. Fergicson v. Ferguson, 16 Grant, 309. 106 ESPLANADE ACTS. See DoWKR, I. EQUITABLE DOWER. EQUITABLE PLEA. Where a party had a clear right in regard to certain equities to set them up by way of equitable defence to an action at law, or to come to this Court ; and, by mistake, pleaded them at law as a legal defence only, upon which he necessarily failed : Held' [reversing the decree of V. C. Mow at], that this did not form any bar to relief, on the same grounds, in this Court. Arnold V. AUinor, 16 Grant, 213. Where, in a suit at law, either party files an equitable plead- ing at any stage of the suit, and the judgment of the Court is ^iven thereon, neither party will be allowed afterwards to file a bill in respect of the same matter, on the ground that the same had been insufficiently pleaded in the action at law. Crabb v. Parsons, 18 Grant, 674. Accordingly, where the equitable pleading in question was by way of rebutter : Held, that the judgment at law was con- clusive, lb. EQUITY OF REDEMPTION. Compromise of Costs. A suit for redemption having been compromised by payment into Court of a sum of money for the benefit of those entitled to the equity of redemption, a decree was made in a suit sub- sequently brought by an execution creditor of the mortgagor, directing an inquiry as to other incumbrancers, and payment to them according to priority, and the defendants having made no improper defence, were held entitled to receive their costs out of the fund. Robertson v. Beamish, 16 Grant, 676. ESPLANADE ACTS. Under the Acts relating to the construction of the Esplanade EVIDENCE. 107 in the City of Toronto, water lot owners are not entitled to be paid the cost of constructing so much thereof as the owners shall have constinicted. The City of Toronto v. Mowat, 16 Grant, 355. Arbitration. Arbitrators appointed to determine the amount to be paid between the city and the water lot owner, in respect of the con- struction of the Esplanade, in setting a value on the water lot, dill so as at the time of the grant ; and awarded interest in rt'spect of the sum found payable by the owner to the city. The award was set aside on both grounds, as the arbitrators should have valued the lot as at the time it was taken possession of by the city, and the Statutes give them no power to award interest, which is chargeable only from the time of the registration of the Surveyor's certificate, or the making of the award. In proceeding under the Acts, whether there should not be sejtarate findings or awards in respect of the filling in of the Esplanade, and the grading, levelling, &c., of the strip to the north of it. — Qucere. Brooke v. The City of Tormto, 14 Grant, 258. ESTATE TAIL. See Will, Construction op. ESTOPPEL. See Fraud on Creditors — Rector. Parol evidence to vary writing, dc. TioN — Mortgage, V. Of alteration in Deed. See Deed, VI. Of Marriage. See Alimony, I. 4. EVIDENCE. See Affidavits — Exahina- i f\ 108 1. Of title. EVIDENCE. Generally. 1. Ofmie. 2. By affidavit. 3. After hearing. 4. Of a Mortgagor. 5. Of a party deceived. 6. Of one defendant against another. 7. Ancient deed. 8. Handwriting of a deceased vntneas, 9. New trial before a Jury. 10. To contradict. 11. Of whether mortgage money paid. 12. Parol 13. Of bona fides. Generally. On the investigation of title between vendor and vendee, under the ordinary jurisdiction of the Court, it is not usually necessary to prove the execution of deeds produced. Brady v. WaUa, 17 Grant, 699. 2. By affidavit. Affidavits are admissible for some purposes on such an inves- tigation ; where, however, an affidavit was offered to prove the loss of a will, which had been proved in a Surrogate Court in New York, but had never been registered or proved in Ontario, and there was some reason for apprehending that there existed no legal means of proof of the will by the purchaser, should he be compelled to accept the title, the affidavit was held insufficient evidence. lb. ^ 3. After hearing. Where, after the evidence at the hearing of a ca\ise was closed on both sides, the Court ordered the cause to stand over to add a party, further evidence between the original parties was held to be inadmissible at the adjourned hearing. The 8. EVIDEN ^.. 109 Mtomey-Oenerai v. The Toronto Street Railway Company, 16 Grant, 187. An application to take evidence after hearing should be by petition and in Court, and an application made in Chambers was dismissed with costs. NichoU v. Moore, 2 Cham. R, 474. 4. Of a Mortgagor. In a suit by the assignee of a mortgage, brought against the moi'tgagors (who had covenanted with the assignee that the whole mortgage money was due), one of the mortgagors is not a competent witness to prove a payment to the mortgagee in his lifetime. Hancock v. Mcllroy, 18 Grant, 209. 5. Of a party deceived. In a case where there was a conflict as to what had passed in conversations, and no other witnesses of them were produced, it was held, that, other things being equal, the version of the deceived party should be accepted in preference to that of the other party. Wright v. Rankin, 18 Grant, 625. 6. By one defendant against another. At the hearing of a cause, evidence is not admissible by one defendant against another. The Attorney-General v. Street Rail- way C&rrtpany, 15 Grant, 187. 7. Ancient deed. Although the rule is, that an ancient deed, produced from the proper custody, proves itself, this does not preclude a party interested from proving that the deed was a forgery ; or that, on any other ground, this deed is not a valid and binding in- strument. Chamberlain v. Torrance, 14 Grant, 181. 8. Handwriting of a deceased witness. Where a party supporting a deed proves the handwriting of a deceased witness, in order to raise the presumption of due execution, the other party may give evidence of the character of such deceased witness as corroborative of evidence tending to shew that the deed was a forgery concocted by him. lb. no EVIDENCE. 9. Next tiial before a Jury. A trial was ordered before a Jury to try the question as to the genuineness of a deed more than tliirty years old, ]>roduced by one of the parties, when evidence was adduced which was a surprise upon the defendants. The Court, at their instance, oi'dered a new trial or re-hearing of the cause upon payment of costs of the hearing already had, including the- costs occasioned by a Jury being summoned and emi)annelled, as also the coats of the motion ; and defendants undertaking to pay the costs of the second Jury, should they demand one, whatever might be the result of the cause. lb. 10. To contradict. A person having a paper title to land, of which he was not the actual owner, created a mortgage thereon, to a person not a party to a suit, by the party beneficially interested, to get rid of another mortgage created on the estate, was asked if he had given notice of the claim of the real owner at the time c f the alleged execution of the first mortgage, which he asserted he had given, and also denied having made such mortgage; evidence was called to contradict him. Held, that this could not be deemed a collateral issue, and, therefore, such evidence was admissible. Gray v. Coucher, 15 Grant, 419. 11. Of whether mortgage money paid. In a suit for the recovery of mortgage money, the question between the parties was, whether the mortgage money had been paid, both parties offered evidence at the hearing, and the Court received the same, and adjudged thereon. Bacon v. Shier, 16 Grant, 485. 12. Parol evidence. Parol evidence to establish trusts not shewn upon a convey ance absolute in form is inadmissible. Langstaff v. Playter, 8 Grant, 39. See Specific Ikirformancb. 13. Ofhonafdes. EXAMINATION. Ill In the case of sale by an insolvent person to a relative, attended by suspicious circumstances, the reality and bona fides of the transaction should not be rested on the uncorroborated testimony of the parties to the impeached transaction. The Merchants* Bank v. Clarke, 18 Grant, 594. EXAMINATION. See Scandal. I. Examining Parties. II. " A Husband or Wife. III. " DB Bene Esse. I. Examining Parties. The Court will take into consideration the fact that parties can be more efficiently examined in Toronto than in some outer counties, and will not consider alone the balance of convenience of the parties or solicitors attending. An application to change the examination from Stratford to Toronto was granted, although no great difference was shewn as to the convenience of the parties interested, on the suggestion (without affidavits) that the examination could be more effi ciently and expeditiously conducted in Toronto. Kahn v. Bed ford, 3 Cham. R., 55. [Note. — This case is misreported. The application, under the circumstances, was refused ; but it is understood that the fact that a witness or party can be more efficiently examined in Toronto will weigh with the Court or Judge on a motion to change the place of exa.' .:lr>«.tion.] An application for an order for the defendant to attend at his own expense, and be examined on his answer, may be made ex parte. Harrison v. Greer, 2 Cham. R., 438. The examination of a defendant under the (General Order 138 is the substitute for discovery by interrogatories, and to entitle a plaintiff to examine on any particular subject, he must make a case for it in his bill. ii>B f {Ml 112 EXAMINATION. Where a defendant refused to answer questions not founded on any case or charge or allegation made in the bill, an applica- tion to compel him to attend and answer was refused with costs. Dicksm v. Covert, 2 Cham. K., 342. Where a defendant has been examined on his answer; the answer and examination may be read in connection and used as an affidavit in support of a motion for decree. Mathers v Short, 14 Grant. 254. Compelling attendance of a party out of jurisdiction for the purpose of being examined. , A plaintiff, desirious of obtaining the evidence of a defendant who resided out of the jurisdiction and could not be served personally, paid a sufficient sum to the defendant's solicitor for conduct money, and moved for substitutional service of a sub- poena on the solicitors, and that if default was made in attend ing, the bill might be taken pro confesso. The application was refused with costs. Seft(m v. Lundy, 4 Cham. R., 33. Where a defendant lived at Hamilton, and the bill was filed at Toronto, plaintiff took out an appointment to cross-examine, the defendant before the Deputy Master at Goderich, the ap- pointment was set aside with costs. McDermid v. McDermid 2 Cham, R. 372. Discovery. A party making affidavit for the purpose of moving to change the venue, and stating that certain parties are material and necessary witnesses, is not bound on cross-examination to state what evidence he expects from such witnesses, or to state facts tending to test the materiality of the proposed evidence. Crombie v. Bell, 3 Cham. R., 195. II. A Husband or Wife Defendant on Answer. A husband is liable to cross-examination on his answer to a bill filed by his wife against him. Patterson v. Kennedy, 2 Cham. R., 372. As a rule, a suitor has not a right to bring his opponent to EXECUTION. 113 Toronto, or elsewhere from his residence, for the purpose of interlocutory examination, except upon special grounds. Where, therefore, an order had been made by the Secretary for a plaintiff to attend before a special examiner at Toronto, the venue of the case being laid at Goderich, and the parties residing there, and the plaintiff's solicitor residing there also, the solicitor for the examining defendant residing in Toronto ; such order was rescinded upon the plaintiff refunding the con« duct money paid him, without costs, the defendant being held to have acted in accordance with what appeared to have been very generally understood in Toronto as the right of examining Hie proper practice in a case where special grounds exist, is an application on notice in Chambers shewing such special grounds. Gallagher v. Gairdner, 2 Cham. R., 480. III. De Bene Esse. Order made ^ parte. Oliver v. Dickey, 2 Cham. R., 87. An order to examine a witness de bene esse will be granted on an «a; parte motion. Crippen v. Ogilvie, 2 Cham. R., 304. On applying for an order to examine a witness de bene essf, it should b€) clearly shewn that the witness is the only witness as to the fact sought to be proved by him. An application, supported by an affidavit of the solicitor as to his belief, w&s refused. Jameson v. Jones, 3 Cham. R., 98. EXECUTION. See Equitable Dower — Injunction, I. — Equitable Estate. Whera a suit is brought for equitable execution against lands, in aid of a judgment at law, the bill must shew that an execu- tion at law had beer placed in the hands of the Sheriff. Shea V. Denison, 14 Grant, 513. Inception of. Afi, fa. against lands was returnable on the 15th September, I I I'l lii'it ir 114 EXECUTORS. 1863, the advertisement for sale was first published after that date, while the writ was durrent ; the Shen iff had told the defendant that he had the execution, and that the land would be sold unless he paid ; the Sheriff was also on the lands more than once before the writ expired ; but he did not go to make a seizure. Held, that there had been no inception of the execution durinf^ its currency. Bradburn v. Hall, 16 Grant. 518. Equitable Execution. See Equitable Estatk. Equitable interests cannot be reached by an execution creditor unless he commences a suit or takes some other step for the purpose during the currency of the writ. Wilson v. Proudfoot. 16 Grant. 103. EXECUTION CREDITOR. See Administration Suit. Costs of. See Administration Suit— Costs. See also Mort GAGE — Will — Execution — Equitable Estates. EXECUTORS. See Administrator — Husband and Wipe — Will — Mori* GAGE, II. 3. ( I. Duties, Liabilities, and Powers of. 1. Married JFoman's Act — Authority to Executor. 2. Duties of Executors as to realizing assets. 3. Where money said to be burnt. 4. Paying Solicitor's bill. 6. Where Heir infant. 6. Where powers cease on the happening of a contingency. 7. Right of retainer — Statute of Limitations. 8. Powers to accept land in payment. 9. Interest. 10. Where charged with loss. EXECUTORS. 116 II. Compensation to. 1. AUmvance by Surrogate Judge. 2. Scale of. 3. By commission. III. Improvements by. IV. Fi. Fa. against before Probate. V. Award Between. VI. De Son Tort. I. Duties, Liabilities, and Powers of. 1. Married Woman! s Act — Authority to Executor. 2. Duties of Executors as to realizing Assets. 3. Where money said to be burnt. 4. Paying Solicitor's Bill. 5. Where Heir infant. 6. Pfliere powers cease on the happening of a Contingency. 7. Right of Retainer. Statute of Limitations. 8. Power to accept land in payment. 9. Interest. 10. Wftere charged loith Loss. 1. (1.) Married Woman's Act — Authority to Executor. Under the Married Woman's Act, a femiM coverte was held competent to bind her interest as residuary legatee by her writ- ten authority to executors, given and acted upon in good faith, to accept laud in satisfaction of a debt due to the estate, without evidence of the husband's having concurred in giving the au- thority. McCargar vs. McKinnon, 15 Grant, 361. I. (2) Duties of Executors as to realizing Assets. Executors should proceed with promptitude to realize the as- sets of the estate ; and the law presumes that as a general rule a year should be sufficient for this purpose. They should exer- cise a i-easonable discretion, as to sueing the debtors of the estate, and should procure evidence of having done so in the case of uncollected debts, the onus of proof being on them and not on the legatees. But where the result proves unfortunate they are not charged with the loss, though the Court should not con- M TT-'n- 116 EXECUTORS. cur in the propriety of the course which in the bona fide exerciae of their discretion they took. A delay of ten months which re- sulted in the loss of a debt, was held to require explanation. — McCargar, v. McKinnm, 15 Grant. 361. I. (3) Where money said to be burnt. Where an executor alleged that he had kept money belongmg to the estate for several years in his house, until the same was destroyedjby fire and the money lost ; the Court held the execu- tor guilty of a breach of trust with respect to the money, and his affidavit as to the destruction being unsatisfactory, refused to discharge him from custody under a writ of arrest. — Lawson V. Crookshank, 2 Cham. R. 426. 1. (4) raying SMcitor's Bill. Where an executor has in good faith paid his solicitor's bill of expenses incurred iu administering the estate, the Master may, without taxing the bill, moderate it by deducting chaiges which appear not to be proper. In considering whether evidence is sufficient to relieve an executor, as between him an. I legatees, in respect of uncollected debts of the testator, the lapse of time in connection with the smallness of the debt is proper to be taken into account. McCargar v. McKinnon, 17 Grant, 525. I. (5) IFhere Heir Infant. Where an execution is issued against the lands of a deceased person in the hands of his executors, auJ the heir is an infant, or is not competent to look after his own interests, or is not aware of the proceedings, it iii the duty of the executors to act in the matter of the sale as a pruden' owner would. In Re Thamas Davis, 17 Grant, 603. I. (6) Where powers cease oh Hie happening of a antingeney. Where an executor is appointed for a limited period ov until the happening of some event, his power as such executor ceases with the occurrence of such contemplited eve at. EXECUTORS. 117 A. testator by his will appointed his wife executrix, and gave her certain legacies, provided she remained single, and in the event of her marrying again, made other disposition of his estate, and appointed another person his executor. An assign- ment of a mortgage made by her and her husband after her second ma; .'iage was held to pass no interest. Conron v. Clark- son, 3 Cham. R., 368. T. (7) Right of Retainer — Statute of Limitations. Where an executor of a creditor is also administrator or ex- ecutor of such creditor's debtor, the right of retainer arises when there are any assets, and he will be assumed to have ex- ercised such right without any actual act of appropriation being established, and though his claim would otherwise be barred by the Statute of Limitations. The rigiit of retainer out of legal assets applies to equitable as well as to legal debts, especially in a case where there is no competition of creditors. Kline v. Kline, 3 Cham. E., 161. I. (8) Power to Accept Land in Payment. Executors have power, in the exercise of a prudent dis- cretion, to accept land in payment of an execution debt. McCargar v. McKinnon, 17 Grant, 525. I. (9) Interest. Executors and trustees may be charged with interest as well afi principal, in respect of sums lost through their misconduct, though the principal never reached their hands. Sovereign v. Sovereign, 15 Grant, 559. 1. (10) Where charged with Loss. Where an executor saw the estate wasted from time to time by his co-executrix and an agent she had appointed, and took no steps to prevent the same, he was charged with the loss. 7ft. TI. Compensation. 1. Allowance by Svrrogate Judge. 2. Scale of. 3. Commission. I .' i.-i ,!!■' 118 EXECUTORS. II. (1) Compensati^'lltl PI GIFT. Deed of G-ift. — Parent and Child. In the case of a gift from a parent to a child, there is no rule which requires the child, in the absence of evidence shewing imposition or undue influence, to support the deed, by the evi- dence which might be necessary in the case of a gift from a child to a parent. JVycoU v. Hartman, 14 Grant, 219. A parent was not permitted to recall a gift, which, in view of the marriage of one of her two sons, she had made verbally to the two, of certain arrears of an annuity which had accrued due from them while she lived with them ; the attempt to recall the gift not having been made until after the marriage and death of the son. [Per Mowat and Strong, V-CC, Spragge, C. dissenting.] Long v. Long, 16 Grant, 239 & 17 Grant, 251. Father to Son. A gift can only be upheld if clearly proved and where evi- dence of loose, casual, and inconsistent admissions and state- ments was offered to prove a gift of all the donor's means ; the evidence was held insufficient. There is ordinarily no presump- tion of undue influence in the case of a gift from a father to a i'.i;r 134 GOOD-WILL, SALE OF. son unless it is proved that the son occupied towards the father at the time a relation of confidence and influence ; but if that is proved, the gift may need for its support the same evidence of due deliberation, explanation and advice as a gift to any other person occupying such relation of confidence and influence. Where there is no proof of mala fides or of an unfair exercise of influence, a gift of a trifling sum, as compared ivith the donor's property, does not stand in the same position as a gift of his whole property. If the donee is a son who occupied to his father (the donor) a relation of confidence and influence, though a gift of the whole of his father's means, if large, may not be upheld without the evidence required in other cases of due deliberation, expla- nation and advice^ the gift of more than a trifling proportion mav be sustainable without such evidence. McConnell v. McGon- nell, 15 Grant, 20. GOOD FAITH. See Voluntary Conveyances Act, 18G8. ; GOOD FRIDAY. Where notice of motion had been given of an application to commit for not bringing in accounts in the Master's ofiice, and four days intervened between the service and the motion, one of which was Good Friday, during which the Master's ofiice had been closed, the Secretary refused the application without costs. WUsm V. Gould, 2 Cham. K. 236. GOOD-WILL, SALE OF. The defendant sold to the plaintifl* the good-will of the busi- ness of an innkeeper which he was carrying on in London, in this province, under the name of " Mason's Hotel," or " West- em Hotel." Held, [afiirming the decree of the Court below] that the sale HBARINO. 135 of the good-will implied an obligation, enforcible in equity, that the defendant would not thereafter resume or carry on the busi- ness of an innkeeper in London, under the name of " Mason's Hotel," or " Western Hotel ;" and would not resume or carry on the business of an innkeeper, undfj any name or in any manner, on the premises in question ; and would not hold out in any way that he was carrying on business in continuation of, or succession to the business formerly carried on by him under the said names, or either of them. Held, also, [varying the decree of the Court below,] that a covenant in the agreement that the vendor should pay $4000 in the event of his carrjdng on business as an innkeeper within ten years, was void as an undue restraint of trade, but did not relieve the vendor from the implied obligation involved in the sale of the good-will. Mossop v. Mason, In Appeal, 18 Grant, 453. Reported in Court below, 17 Grant, 360 ; and 16 Grant, 302. GREENHOUSE AND MACHINERY. See Landlord and Tenant. See Infants, II. GUARDIAN. I ill HEARING. See Postponing Hearing. 1. Healing and Examination. A motion was granted for postponing the hearing and exami- nation of a cause, on the grounds of the absence of a material witness, after notice of hearing had been given, although the cause had been at issue for some months previous. The costs of such a motion are costs in the cause. V. Machell, 2 Cham. R, 376. 2. Hearing Chambers Motion before a Judge. Graham 136 HUSBAND AND WIPE. When a party moving desires to have his application heard before a judge, it does not entitle him to have it heard at a fnture day ; but it may be heard at once. The Court will not encourage the hearing of motions before a judge, where the object of doing so is obviously to gain time after it has been refused by the Secretary. Lachlan v. Reynolds^ 2 Cham. R. 454. 3. Hearing on further directions. In a case where fourteen days have elapsed since the con fir mation of the Master's report, the plaintiff will not be permitted to set down the cause on further directions for a distant day, to the delay of the defendants. Where, under such circumstances, the cause had beei: set down on further directions by both parties, a motion by the plaintiff to strike the cause out of the list, the setting down by the defendant being for an earlier day, was refused v.'ith costs. Poole v. Poole, 2 Cham. R., 379. 4. New Hearing. Where the defendant's solicitors, through the neglect of their clerk, were not aware until after the hearing that the cause had been set down or notice of hearing served, and the question raised by the answer was as to the defenc'ant's lia bility on a judgment recovered against him by his solicitor, the Court allowed a new hearing after the decree was drawn up and entered, on payment of costs. The application for such a purpose should be by petition to the Court, and not by motion in Chambers. Donovan v. Denison, 2 Cham. R., 284. See Will. HEIRS. HUSBAND AND WIFE. Suits between. See Alimony. Examining. See Examination, II. See also Married Woman, Next Friend— Deed VI. HUSBAND AND WIFE. 137 rd ta Where a wife took an active part in her husband's business, and had the custody of bis money, sums paid to her were treated as paid to the husband. An executor without proving the will has power to do almost all the acts which are incident to his office ; and on the other hand, if he acts, and does not renounce or raake known his in- tention not to act, he is in general disqualified to engage in any transaction for his own benefit to the prejudice of those inter- ested in the estate, quite as much as if he had taken out probate. A. died leaving all she had to her sister B.^ an old, feeble and ignorant woman, and appointed C. her executor. C. did not prove the will, but he acted as executor ; he also removed the plaintiff to his house, and intimated that he meant to take care of her during the rest of his life. The testatrix had a life estate in some cottages, and after her death the remainderman was induced by C. and others, for the purpose of benefiting the plaintiff, to sell them for less than half their value, and to con- vey them to C.'s wife, it being supposed that C. would have to advance the money out of his own funds, but the fact being that he had money in his hands as trustee for the plaintiff suf- ficient to pay the price. Held, that C. and his wife could not retain the benefit of the purchase, and that the plaintiff was entitled to a coiiv^eyance. Robinson v. Coyne, 14 Grant, 561. A purchase by a wife from her husband, the consideration being paid out of her separate estate was held to be maintain- able against creditors of whose lebts she had no notice. Hill V. Thompson, 17 Grant, 445. The husband after the purchi\se expended money in improving the property : Held, in a suit by a judgment creditor of the husband to obtain the benefit of such expenditure, that the wife was entitled to shew that the debt for which the judgment wati recovered had been satisfied before action was brought. iJ. A man and woman lived together as husband and wife, the lii ill Ms m 1B8 INADEQUACY OF CONSIDERATION. man having a wife living at the time ; and land purchased in the man's name was paid for by the woman out of money of her own : Held, that there was a resulting trust in favour of the woman. Hoig v. Oordon, 17 Grant, 599. Where for ten years a wife concealed from the public her re- lation to her husband ; and allowed him to live with another woman as his wife under an ussumed name — the real wife liv- ing in the neighbourhood and receiving from them her own support, it was held that she was precluded from claiming dower out of land purchased during this period in the husband's as- sumed name and afterNvards sold by him and his supposed wife to a purchaser who bought in good faith and without any notice of the real relationship of the parties. lb. held The See Next Friend. IDIOT. See Infants. IMMEDIATE SALE. IMPRISONMENT FOR DEBT. The provisions of the Con. Stat. cap. 26, apply to the Court of Chancery, and a debtor confined under a writ of arrest may apply for his discharge under section seven thereof. — Lawson v. Crookshank, 2 Cham. R., 413 ; S. C. 426 ; PherUl v. Pherill, 2 Cham. R. 444. IMPROVEMENTS. See Setting aside Sale. — Conveyance, II. 4. — Executors, III. Charge for. See Partition. Payment for. See Purchase under Mistake. INADEQUACY OF CONSIDERATION. See Vendor and Purchaser. the her the INDORSERS. 139* INCEPTION OF EXECUTION. See Execution. INCORPORATED COMPANY. Change on Property of. An incorporated company having executed a bond which, (hough it contained no direct words of charge, was evidently intended to give a lien on the property of the company, it was held that the lien was sufficiently created. Town of Dundas v. The Deyardins Canal Co., 17 Grant, 27. INCUMBRANCES, COVENANT AGAINST. See Vendor and Purchaser. INDEMNITY. See Principal and Agent. INDIAN LANDS. The Act respecting Indian Lands authorized the Governor in Council to declare applicable thereto the Act respecting timber on public lands ; an Order in Council was issued accordingly ; eight years afterwards another Act was passed which contained a clause authorizing the Governor in Council to declare the Tim- ber Act applicable to Indian Lands, and to repeal any such Or* der in Council and substitute others, and another clause anthor^ izing the Governor in Council to make regulations and impose penalties for the sale and protection of timber on Indian lands : Held, that the Timber Act continued in force until revoked or altered by a new Order in Council. The Attorney-General v. Fowlds, 18 Grant, 433. INDORSERS. See Contribution — Accomiiodation Indorser. fTTTTT' 140 INFANTS. INFANTS. See Next Friend— Security for Costs— Guardian- Child. I. Practice in suits where Infants are concerned. II. Guardian of, Appointing, Duties of, &c., and Guardian ad litem. III. Infants' Money, Investing, closure of the railway : he is only entitled to have a manager or receiver of the undertaking appointed : and Qum'e, whether the rule is otherwise in the case of a vendor seeking to enforce his lien for unpaid purchase money. Gait v. The Erie and Niagara Railway Company, 14 Grant, 499. I. (2) Administration. A testator devised all his real estate to a mortgagee thereof, charged with a legacy in favoiir of an infant, and bequeathing legacies to other persons. The mortgagee filed a bill claiming to have the sums appropriated as legacies applied to the payment of his mortgage debt : Held, that he was not entitled to be paid out of the personalty in preference to the legacies ; but that he was entitled to be paid his mortgage debt out of the property so devised to him before the sums charged thereon for logacies were raised. Richer v. Richer, 14 Grant, 264. I. (3) Right to have insurance money laid out in rebuilding. Where a mortgage contains no covenant on the part of the mortgagor to insure, but he does insure, and a loss by fire occurs whereby the insurance money becomes payable, the mortgagee is entitled under the Act (14 George III., ch. 78, sec. 83) to have the insurance money laid out in rebuilding. Stinson tv Pennock, 14 Grant, 604. , I. (4) Liable to interest if he resists redemption. If a mortgagee retains possession of the property after being. -I 188 MORTGAGE, ETC. paid in full, the general rule is to charge him with interest and rests in i-espect of his subsequent receipts. A fortiori is such a charge proper where a- mortgagee resists the mortgagor's right to redeem Crippen v. Ogilvie, 15 Grant, 568. I. (5) Right to retain interest. A mortgagee sold the mortgaged property under a power of sale : Held, in a suit by the mor^agor for the surplus, that the mortgagee was entitled to retain arrears of interest for more than six years. Ford v. Allen, 15 Grant, 565. I. (6) Onm of proof . The decree directed a reference to the Master at Brantford to take an account of the amount due upon the mortgage in ques- tion. The only evidence before the Master besides what was used at the hearing of the cause, was the affidavit of the per- sonal representative of the mortgagee, which stated that he believed the whole amount to be due. An appeal from the Master's report finding the whole amount due was allowed. Semhle, that the onus of proof under such a reference rests upon the holder of the mortgage. Elliott v. Hunter, 15 Grant, 640. I. (7) Registry Law — Possession. In 1831 A demised his farm to his widow in fee, and left her in possession. The will was never registered ; and shortly after the testator's death his eldest son and heir went into possession with his mother, and so continued until his mother's death in 1854, the sou managing the farm, and being reputed owner during this period. After his mother's death he was in sole possession ; and in 1862 he executed a mortgage on the pro- perty to a pei*son who had no notice of the will or of the wi- dow's title : Held, (affirming the decree of the Court below) that the widow's heirs could not claim the property against the mortgagee. (A. Wilson, J., dissenting.) Stephen v. Simpson, (In Appeal.) Affirming— 12 Grant ; 493, 15 Grant, 594. I. (8) Vendor and Purchaser. A and B. mortgaged to C, and afterwards sold and conveyed the same property to D, receiving back a mortgage for the pur- MORTGAGE, ETC. 189 chase money, which exceeded the amount due C. A\ without Fs authority, assigned this mortgage to C by way of further security for the debt due to him by A and B. On a bill by B against all parties, it was held that the proper decree was the same as if the purchaser had been the original owner, and had executed a first mortgage to C and a second mortgage to A and B. Orahame v. Anderson, 15 Grant, 189. I. (9) Rests. Wherever, from the necessities of his position, it is necessary that a mortgagee should, for his own protection, take possession, he is not chargeable with rests, and this even though the mort- gage was not in arrear. Gordon v. Eakins, 16 Grant, 363. A tenant of a mortgagor paid the mortgage after the mort> gagor's death, and the representatives of the mortgagor having no means of paying the debt, he entered into an ag^reeraent with the widow that she and her children should occupy the dwelling house and four acres of the mortgaged property ; that he himself should occupy the residue at a rental of $170, should pay $40 a year to the widow, and apply the residue of the rent on the mortgage : Held, in ifbuit afterwards brought by a purchaser of the equity of redemption to redeem, that the defendant was not chargeable with the $40 a year he had paid to the widow, nor with rests, though the rent for which he was accountable ex- ceeded the interest. lb. I. (10) Deficiency, Where, after the mortgagor had assigned his equity of re- demption, the mortgagee, with the concurrence of the assignee, by sale and transfer of the moi*tgaged premises, put it out of his power to reconvey on redemption by the mortgagor, it was held that he could not call upon the mortgagor for payment of any deficiency resulting upon such sale of the estate. Bumham v. Gait, 16 Grant, 417. Mortgagees, in pursuance of a power of sale contained in their conveyance, sold the mortgaged property to McLeod for $7,800, and gave him possession. McLeod paid a deposit of $600, and 1-1 Is] 1 '^iliJ 190 MORTGAGE, ETC. gave his promissory note for $600 more, which he duly paid. He also executed a mortgage for $4,000, which was duly reg- istered, but did not pay the residue of the purchase money, $2,600. The mortgagees executed a deed of the property but re- tained it in their possession. The solicitor for the mortgagees also did some acts as if the sale was complete, but the Court, V)eing satisfied that in the contemplation of the parties, the trans- action was still in fieri : Held, that the mortgagees were not res- ponsible to a subsequent incumbrancer for the $2,600, or charge- able with more money than they had actually received. The Bank of Upper Canada v. Wallace [In Appeal], 16 Grant, 280. 1. (11) Construction of inconsistent expressions — Costs. A mortgage dated 16th October, 1866, provided for the pay- ment of the principal in three years from that date ; and inter- est meanwhile at twelve per cent, half yearly, on the 16th of April and October in every year ; and declared that to secure prompt payment of said interest the mortgagee would take at the rate of ten per cent, if the interest was paid on the said 17 th day of April and October respectively : it was held, that *he first reference to the day being uneauivocal must govern ; that the interest was due on the 16th; and not having been paid then, that a billon the 17th was not irregular. Bennett v. Foreman, 15 Grant, 117. A mortgagee has a right to file a bill of foreclosure the day after the mortgagor makes default ; and, though such a course may be extremely sharp, he cannot be refused his costs. lb. Costs. A first mortgagee is entitled as against the owner of the equity of redemption to add to his debt the costs necessarily in- curred in a suit to redeem, which was brought by a second mortgagee, and was dismissed with costs for the default of the plaintiff therein. McKinnon v. Anderson, 17 Grant, 636. But where a first mortgagee had taken a decree for dismiissal on the plaintiff's default, instead of giving the owner of the equity of redemption a day to redeem under the General Order MORTGAGE, ETC. 191 466, and a second suit became necessary in consequence, he was held not to be entitled to the extra costs thereby ocoa- jtioned. — lb. I. (12) Production. A mortgagee is not bound to produce his mortgage deed for the inspection of the mortgagor, when there is no question of title in dispute. Bell v. CfMmberlen, 3 Cham. R., 429. I. (13) Arrears of interest. During the lifetime of a mortgagor the mortgagee has no lien on the mortgaged property for more than six years' arrears of interest ; though he may have a personal action on the covenant for more ; but, in this country as well as in England, after the mortgagor's death the mortgagee to avoid circuity may, as against the heirs, tack to his debt all the interest recoverable on the covenant. Carrol v. Robertson, 15 Grant, 173. A mortgagee is not obliged to accept payment of the whole principal and interest of a mortgage on which only certain in- terest is due, and a bill to foreclose which has been filed. Green V. Adams, 2 Cham. B., 134. I. (14) Dower. Where a woman joins in a mortgage to bar her dower for the purpose of secuiing a debt of her husband, and after his death the property is sold for more than is sufficient to satisfy the claim of the mortgagee, the widow will be entitled to have her dower secured out of the surplus in preference to the simple contract creditors of her husband. Sheppard v. Sheppard, 14 Grant, 174. I. (15) Parol evidence. A mortgagee, who was purchasing a prior mortgage, was ad- vised by his solicitor to take the assignment to another person AS trustee ; and he took the assignment accordingly in the name of his son, not intending it as an advancement to the son : ffdd, that parol evidence was admissible to prove the trust. ■I: ■if 192 MORTGAGE, ETC. 'i! Having afterwards foreclosed all other incumbrancers, the same party was advised to release his interest to his son, so that the whole title might be in him as trustee. The deed did not mention any trust, but was retained by the father in his own possession, and was not communicated to the son, who knew nothing of it for more than five years, during all whicli time the father was receiving payments from the mortgagor to the father's own use, with the knowledge of the son and without any claim by him : Held, that parol evidence was ad- missible to prove these facts, and a conveyance to the father was decreed. Ban v. Barr, 16 Grant, 27. I. (16) Possession — Notice of Title— Registration — Evidence — Costs. The rule that possession is notice of the title of the party so in possession considered and acted on. The plaintiff purchased the land in question from /, who had purchased from G, no conveyance having been made to J by G, who afterwards conveyed the same land to S,& son of the plain- tiff, who mortgaged it and represented the property as his own, the plaintiff being all the while in possession. The title was not a registered one : Held, that the mortgagees were affected with notice of the plaintiff's title by reason of his possei^sion, although there was no pretence of actual notice to them ; and they having omitted to set up the registry laws as a defence, liberty was given them to apply for leave to do so, if so advised. Gray v. Coucher, 15 Grant, 419. I. (17) Loss of Mortgage Deeds — Costs. Where a mortgagee loses the mortgage deed he is bound at his own expense to furnish the mortgagor with such evidence of the loss as the mortgagor may require to produce in future dealings respecting the property, and with an indemnity against any demands third persons may have acquired, by deposit of the deed or otherwise to the money or any part thereo f.| ^ ^;l ins """"•. After the loss of a mortgage deed, the mortgagor offered to pay the overdue interest on an affidavit being produced that the MORTGAGE, ETC. 193 mortgagee had not parted with the mortgage. The affidavit was produced accordingly, but the mortgagor did not make the pay- ment, and a bill of foreclosure was filed in respect of this and subsequent defaults. The Court held, that the plaintiffs must bear the expense of the proof of loss, and the expense of the in- demnity bond, but were entitled to the other costs of the suit. McDonild V. Hime, 15 Grant, 72. I. (18) Tender of debt. Where a tender of debt and interest had been made to a mort- gagee, pending actions on the mortgage, and the mortgagee's solicitor sent to the mortgagor's solicitor his bills of costs incur- red in the suits, and the latter considered them too large, but offered to pay any amount which the Master should tax, it was hi'ld, that the mortgagee was entitled, as a matter of strict right, to go on witli his actions notwithstanding such offer. Totten v. IFatson, 17 Grant, 233. I. (19) Mortgagee's lien. Where the mortgagee's right to claim a lien on the unsold por- tion has been put an end to, it is not revived by his two years afterwards obtaining the consent of the first purchaser to a re- conveyance on payment of the mortgage money. Cowland v. Garbutt, 13 Grant, 578. I. (20) Derivative Mortgagee. A bargain for extra interest made between a derivative mort- gagee and a mortgagor inures to the benefit of the original mortgagee. Graham v. Anderson, 15 Grant, 189. Jl. Decisions affecting the rights of Mortgagors, and INCIDENT THERETO OF MORTGAGEES. 1. Redemption of part. 2. Executor in double capacity — Loan to Executor. 3. Purchase with assent of Mortgagee. 4. Notice. 5. Coats of action. 11:1 104 MORTGAGE, ETC. !: it I i!* 11. (1) Redemption of part. Where a mortgage provided that in case of sales by the mort- gagor of portions of the mortgaged property, the mortgagee, on receii)t or tender of a certain proportion of the purchase money, should release the part sold from the mortgage ; it was Jheld, that the first person who thei-eafter purchased and paid to the mortgagor his pui'chase money, but obtained no release from the mortgagee, was not entitled, as he would have been in the ab" sence of this provision, to pay off the whole mortgage, and to demand payment of the whole from a subsequent j)ui'chaser redeeming him ; but that each ptirchaser (including the first) was entitleeration and effect of an instrument, he is bound by such allegation. Foster r. Beall, 15 Grant, 244. There were two mortgages on the property in question : bougjjt the first mortgage, and subsequently the equity of re- demption : Held, that the second mortgage did not thereby acquire priority over the first mortgage by the circumstance of the instrument executed by the first mortgagee having been in form a mere grant and release to of tlie mortgagee's estate at law and in equity in the property ; nor by reasc«i of the purchaser having given a moi'tgage on the property to secure a portion of the purchase money which he was to pay for the first MORTGAGE, ETC. 190 mortgage ; nor by reason of his subsequently conveying portions of the property to his sons, and in terms subject to such raovt gago. Barker V. Keeks, 17 Grant, 631. An insolvent person executed to his son a mortgage for i?l,000, of which .$400 was a pretemled debt to the son, and .$600 ii pretended debt to his mother. The son subsequently, under an arrangement with the father, transferred the mortgage to C, who was the holder of notes of the mortgagor to the amount of .$600, which he gave up to the mortgagee, and he paid in cash .$400 to the mortgagee. C had notice of the character of the mortgage, but the transaction with him was bona fide : Held, that he was entitled to claim for the full amount of the security, in priority to subsequent execution creditors of the mortgagor [MowAT, V.-C, dissenting]. ToUen v. Douglas (In Appeal), 18 Grant, 341. V. MORTOAGE BY ABSOLUTE DEED. 1. Sole by Sheriff' of Equity of Redemption — Dormant equities — : Statute of limitations — Wth elauae, Chuicenj Act. 2. Costs. 3. Evidenee. 4. Parties. 5. Parol evidence^ 6. Subject generally. V. (1) Mortqage created by deed absolute inform — Sale by Sheriff of equity of redemptiim — Dormant equities — Statute of limita- tions — McCabe V. Thompson (6 Grant, 17.5) followed. Ap jdieation of Wth clause of Chancery Act. Macdonald v. Mac donell, 2 E. & A. R., 29.1 V. (2) Costs. A conveyance absolute in form, but intended as a security, was made by the owner of real estate. The sum secui-ed was paid, but no reconveyance was ex(!cuted. The owner, however, was always permitted to deal with the estate as his own, and created a mortgage thereon, with the knowledge of the person holding the legal title, who after the death of the mortgagor .=>fy 11 200 MORTGAGE, ETC. 11 commenced proceedings in ejectment, claiming under the abso- lute conveyance : on a bill filed for that purpose the Court iv- strained the action, and ordered the plaintiff therein to pay the costs of this Court. Cayley v. McDonald, 14 Grant, 540. V. (3) Evidence. Where a deed was absolute in form, and the alleged consider- ation was in part promissory notes theretofore held by the grantee against the grantor, the fact of these notes being h^ft in the possession of the grantee is not alone sufficient to prove that the deed was intended as a mortgage. Healey v. Daniels, 1 4 Grant, 633. V. (4) Farties. Although the rule is that a prior mortgagee can he made a party only to redeem him, still if such prior security has been created by a deed, absolute in form, a subsequent mortgagee is at liberty to bring him before the Court for the purpose of shew- ing his interest to be redeemable without offering to redeem hiiii. Moore v. Hobson, 14 Grant, 703. v. (5) Parol evidence. A deed was made by one joint owner of property at the in- stance of the other joint owner, to a third person, under a parol agreement that the grantee should hold the {)roperty to secure a sum of money which it was intended that he should advance to pay interest on a mortgage which was on the property, and that, subject thereto, the grantee shouhl hold the property in trust for the wife of such other joint owner, who remained in possession of the property : Held, that parol evidence to estab- lish the agreement was admissible. Campbell v. Durkin, 17 Grant, 80. V. (6) Subject generalhj. The distinction between a mortgage and an j^bsolute sale, with a contemporaneous agreement for repurchase, explained ; and an absolute conveyance held to be of the latter character rather abso- t IV- tl>e MORTGAGE, ETC. . 201 than the former, on the weight of evidence, which was con flicting. Rapson v. Hersee, 16 Grant, 685, VI. Sales under power of sale— Under decree for sale AND PURCHASERS UNDER. 1. Sales where heirs of Mortgagor unbnmvn. 2. Purchase for Mm'tgagee under power of sale. 3. Powers of sale. 4. Improvements by purclmser under void sale — Arrears of Interest. VI. (1) Sale where heirs of Mortgagor unknown. Where a party interested in the equity of redemption is dead, and his heirs are out of the jurisdiction and unknown, the Court has jurisdiction in a suit by the first mortgagee against a subse- quent mortgagee and the Attorney-General, to direct a sale of the property, and the proceeding cannot afterwards be set aside by the heirs except for error or fraud. In such a case the con- ditions of sale must state these circumstances. Smith v. Good, 14 Grant, 444. VI. (2) Purchase for Mortgagee under power of sale. Where a sale took place under a power of sale in a mortgage, and the clerk of the mortgagee's attorney became the purchaser but paid nothing, notwithstanding which the mortgagee con- veyed the pro{)ert3'^ to him, and he immediately reconveyed to the mortgagee : Held, that the sale was invalid, and the pro- l)erty still redeemable, although the mortgagor immediately after the sale accepted a lease of the property. Ellis v. Dellahougk, 15 Grant, 583. VI. (3) Power of sale. Where a sale takes place under a power contained in a mort- gage, and the sale is not properly conducted through the fault of the solicitor, the mortgagor, or any other party interested as well as the mortgagee, has a right to institute proceedings com- plaining thereof. Howard v. Harding, 18 Grant, 181. ! U 202 MORTGAGE, ETC. First mortgagees with a power of sale released portions of tlip mortgaged propei'ty to the mortgagor : Held, that this did not give priority to a subsequent incumbrancer with respect to tlie I'emainder of the property ; but might render the fii-st mortga- gees responsible to the second for the fair value of the parcels released. The Trust and Loan Compuny of Canada v. lioulton, 18 Grant, 234. 1* ri . 1 VI. (4) Improi'einents bij pwxhasers under void sale — Arrears of Interest. Imi)rovement8 made by a defendant under the belief that he was absolixte owner, are allowed more liberally than to a mort- gagee who improves knowing that he is but a mortgagee. A person purchased under a power of sale in a mortgage, but the sale was irregular, and was set aside : Held, that, as a con- dition of relief against him, he should be allowed for all the improvements he had made, under the belief that he was abso- lute owner, so far as these improvements enhanced the v; lue of the property, but no further ; and that he was not restricted to such improvements as a mortgagee in i)ossession would have been entitled to make, knowing that he was a mortgagee. Car- roll V. lioberlson, 15 Grant, 173. VII. Miscellaneous Cases : [Affecting the subject generalhj, and relating incidentally to the matters indicated by the Jieadings.] 1. Fire Insurance. 2. Mortgage payable without interest. 3. Equitable interest in leasehold lands — Merger — Rectory lands. 4. Fraud on creditors — Assignee foi' value without notice. 5. Rights, duties and liabilities of purclmsers. 6. Mandatory injunction. 7. Mortgage contemporaneous with deed not signed by wife. 8. Equitable Mortgage. 9. Registration. '. i s of tlio did not t to tlie nortgii- parcels Uon, 18 MORTGAGE, ETC. 203 10. Parol trust. 11. Antecedent debt. 12. Dower. 13. Assignee of Mortgage. 14. Lien. 16. Estoppel — Representation affecting third parties. VII. (1) Fire Insurance. A fire policy in the name of a mortgagor contained this clause : " In the event of loss under this policy the amount the insured may be entitled to receive shall be paid to A. Living- stone, mortgagee." There waj evidence that the insurance was applied for by the mortgagee and was intended for his security : Held, that to the extent of the mortgagee's interest a subsequent act of the mortgagor, to which the mortgagee was no party, would not avoid the policy. Livingstone v. The Western Assur- ance Company, 14 Grant, 461. VII. (2) Mortgage payable withmit interest. A mortgage dated 23rd May, 1846, secured the payment of £112 10s., without interest, on or before the 23rd May, 1847, containing a power of sale on default of payment, and provided that the moi'tgagee after deducting the costs and expenses of sale, " and the said sum of £112 10s. without interest," should pay the surplus to the mortgagor : Held, that interest was pay- able from defatilt ; but from the corresi)ondence l-^twt on the parties the Court treated the interest as paid up to May, 1859. McDonell v. West, 14 Grant, 492. VII. (3) Equity of redemption in leasehold — Merger — Rectwy lands. Where two mortgages had been created on a leasehold interest in rectory lands, the equity of redemption in which was after- wards sold at sheriff's sale under common law process and the purchaser paid off the prior mortgage : Held, that the purchaser being bound to protect the mortgagor against both the incum- brances was not at liberty to keep alive the prior mortgage as against the second mortgage. 1 I I 204 MORTGAGE, ETC. !i m In such a case the purchaser upon the expiration of 1/..0 term obtained a new lease from the rector and created a mortgage on such new term : Held, tliat such new lease was a mere graft upon the original one, and, as such, was subject to the mortgage which had been left outstanding, but as notice of that fact could not under the circumstances bo imputed to the mortgagee of tlio new term, he was declared entitled to priority. Whether an equity of redemption in a leasehold interest is saleable under common law process — Qiccere i McDondl v. Rey- nolds, 14 Crant, 691. VII. (4) Fraud on creditors — Assignee for value without '.e. An insolvent person executed to his son a moit^ ^ for $1,000, of which $600 was a sum fraudulently pretended to be due to the mortgagor's wife : Held, that, even if the remaining sum was really due to the mortgagee, his concurrence in the fraud as to the $600 rendered the mortgage void in ioto. The assignee of a mortgage is entitled to set up the defence of a purchase for value without notice. A party intending to purchase a mortgage should communi- cate with the mortgagor before j)urcha8ing ; and if he refrains from doing so, his assignment is subject to all equities thert were between the mortgagor and mortgagee, though the assignee may not have had actual notice of them. The assignee of a mortgage, impeached as having been made without consideration and to defraud creditors, in setting up the defence of a purchase for value without notice, must deny notice that the mortgage was given without consideration ; and a mere denial of notice of the claim of the inipcaching creditor is insufiicient. Totten v. Douglas, 15 Grant, 126; and 16 Grant, 243. VII. (5) Rights, duties and liabilities of purclmsers. "Where the purchaser of mortgaged premises had perfected his title thereto by means of a conveyance from the mortgagee, who had obtained a final order of foreclosure, and it was sought by the mortgagor to impeach the title of such purchaser by reason of eve .10 Ik v: MORTGAGE, ETC. 206 term jngeon graft ►rtgage could of thu 'e. of irregularities in the foreclosure proceeclings, of which, how- over, it was not shewn that the purchaser was aware ; but the (li'cree and the final order on the face of them was regular: Held, that the purchaser was not bound to inquire into the regularity of the proceedings upon which the decree and final order wore founded, and dismissed the bill with costs. Gunn r. Doble, 15 Grant, G55. VII. (6) Mandatory injundim The plaintiff, a mortgagee, filed his bill for foreclosure and for an injunction to restrain the vendee ol the mortgagor from removing a building erected on the property. The Court thought that the building having been actually removed, it Was a proper case for a mandatory injunction ; but it appearing that the building had been removed piecemeal, and that there might be ditticulty in restoring it, an inquiry was directed to ascertain the value thereof, as sufficient for the justice of the case. Meyers V. Smith, 15 Grant, 616. VII. (7) Mortgage contemporaneous with deed not signed by wife. J l)eing the owner of certain lands, conveyed the same in fee to L. The latter afterwards conveyed them to J'a wife. She and her husband then executed a mortgage of the lands to G : but the wife was never separately examined. L then filed his bill alleging that the mortgage was to be taken to secure part of the pur.! i se money, and that Ts wife refused to be exam- ined. By ihe decree it was referred to the Master at Guelph to ascertain the consideration for the original deeds. The Mas- ter reported, th'it the original were given by / to Z without consideration, to enable J to defeat his creditors. From this report the jjlaintiff appealed ; but the appeal was dismissed. The defendants then heard the cause on further directions ; but the plaintiff did not appear : Held, that the plaintiff was en titled to have the mortgage completed, or the deeds to J's wife given up to be cancelled. But as the plaintiff did not appear lie did not get a decree, though the defendants were refused any relief. Lindsay v. Johnston, 15 Grant, 446. i 206 MORTGAGE, ETC. VII. (8) Equitable Mortgage. The customei' of a bank created a mortgage in favour of the institu*^'on by deposit of title deeds. In a suit to realize the security, the debtor swore that the deposit had been made to secure certain future advances, all of whicli had been paid off. The officers of the bank, on the other hand, swore that the security was required by the bank, and given by the debtor to secure all his indebtedness, past as well as future, and a memo- randum enclosed at the time of the deposit on the envelope containing the deeds was to the same effect. The Court, in the view that the deposit, if made as alleged by the bank, was law- ful, while, if made for the purpose stated by the debtor would have been illegal, made a decree in favour of the bank, with costs. The Royal Canadian Bank v. Cummer & Mason, 15 Grant, 627< VTI. (9) Registration. A moi-tgage at the date of its execution, the same having been registered, was ineffectual to pass the wife's estate, by reason of her not having been examined apart from her hus- band ; and subsequently such mortgage was re-executed by the husband and wife, and the fact of the wife having been duly examined indorsed thereon, so that the deed was made effectual to pass her estate, but no registration took place : Held, that the registration was sijUicieut under the statute ; but that the examination of the wife upon the i-e-execution of the mortgage could not relate back to the first execution thereof, so as thereby to gain for it ])riority of an instrument which had been subse- quently executed by the husband and wife, and duly registered. Beattie v. Mutton, 14 Gi-ant, 686. The owner of lots A and ]i sold A, but the conveyance was not registered ; he afterwards mortgaged A and B, and the mortgagee registered the mortgage without notice of the prior deed ; the uiovtgagor subsequently sold B in portions by three successive sales : Held, in a suit by the assignees of the mort- gage for a sale, that the decree should be for the sale first of B ; and that if a sale of j)art of B producetl enough, the portion last 1'. / VI MORTGAGE, ETC. 207 last parted with by the mortgagor should be first sold. V. Eccks, 17 Grant, 277. Barker VII. (10) Farol Tmst. A, who was greatly addicted to drinking, gave to B a mortgage to secure a small debt ; the property was worth at least seven times the debt ; and the rent of half the property, for three years, would have paid off the claim ; but five years before the debt was payable, A, without any additional con- sideration, released his equity of redemption to B ; and B was allowed to remain in possession for seven or eight years after the mortgage debt was paid off by rents. A majority of the Judges of the Court of Appeal were of opinion, and held, faffirming the decree of the Court below,] that the facts and evidence shewed that the release was given on a parol trust, for the benefit of the mortgagor and his family, and that to sot up the release iis an absolute purchase was a fraud on the part of B against which the Court should relieve, notwith- standing the lapse of time and the death of some of the wit- nesses. Crippeii V. Ogilvie, 18 Grant, 253. VII. (11) Antecedent Debt. A mortgage was obtained by pressure from an insolvent person (a miller) three months before he executed an assign- ment in insolvency ; the mortgage was for an antecedent debt, and Wiis not enforcible for two years ; it comprised the mort- gagor's mill only, and left untouched about one-third of his assets ; it was not executed with intent to give the mortgagees a preference ; and at the time of obtaining it they were not aware of the mortgagor's insolvency. In a suit by the assignee in insolvency, impeaching the transaction, the mortgage was held to be valid. The mortgagees, shortly after obtaining this mortgage, became aware of their debtor's desperate circumstances, and obtained from him, by pressure, a mortgage on his chattels used in his business : this mortgage was held void against the assignee in insolvency. McWhirter v. The Royal Canadian Bank, 17 Grant, 480. m V , i 208 VII. (12) Dower. MORTGAGE, ETC. A wife joined in a mortgage of her husband's estate to secure a loan of one-fourth or one-fifth of the value of the pvopei-ty, and he subsequently sold the property ; his wife claimed to be entitled to dower, and refused to join in the conveyance without a reasonable compensation being made to her ; her right to dower being supposed by all parties to exist, her husband had a piece of land conveyed to her, which she accepted, and there- upon she signed the conveyance of the mortgaged estate. The transaction appearing to have been for the interest of creditors, it was held to be valid, independently of the question whether her claim to dower was in such a case well founded in iK)int of law or not. Forrest v. Laycock, 18 Grant, Gil. VII. (13) Assignee of Mo^igage. An assignee of a mortgage cannot as against a prior equity set up the plea of purchase without notice. Smart v. McEwmi, 18 Grant, 623. VII. (14) Lien. The I'egistered owner of land mortgaged the same, and after- wards conveyed the property absolutc^ly to a purchaser, wlui registered before such moi'tgage, giving back a mortgage t() secure purchase money ; and subsequently the vendor assigned his mortgage io a purchaser who had no notice of the prini' mortgage : Held, ihat the purchaser's mortgage in the hands of th;) assignee was subject to the lien or charge of the vendor's mortgage. lb A registered owner of Whiteacre and Blackacro and other lands mortgaged all to the plaintiff: the holder then sold Whiteacre to B, and afterwards Blackacre to K, covenanting ill each case against all incumbi'aiiccs. The various instru inents were respectively registered inmiediateiy after thei. exe- cution : Ileldy that Ji's right, as between him and K, was to throw the whole mortgage, and not merely a rataV»le part, on Blackacre. Jones v. /ini; 18 (J rant, 071. MOTIONS. 209 VII. (15) Estoppel — Representation affecting Third Parties. The ownei" of real estate created a mortgage thereon, and afterwards sold and conveyed a portion of the property by a deed containing covenants for quiet enjoyment, freedom from incumbrances, «fec., taking from the purchaser a bi>nd, condi- tioned for the payment of a proportionate amount of the mort- gage debt : Held, reversing the judgment of the Court below, that the fact of the purchaser holding such absolute conveyance was not such a representation to the holders of the mortgage as warranted them in executing to the purchasers a re ease of his portion of the estate from the mortgagee, and afterwards looking to the mortgagor for payment thereof. [VanKoughnet, C, dissenting.] Bank of Montreal v. Hopkins, 2 E. & A. R., 458. MORTMAIN. See Will, IV. Where a sum of money was bequeathed for the erection of a parsonage : Held (first), that there was an implied authority to purchase land whereon to erect such parsonage ; (second), that in the absence of anything to shew tliat no portion of the fund was to be applied in the purchase of the land, the bequest was void under the Statute of Mortmain. Davidson v. Boomer, 2 Cham. R., 1. Corporation to hold lands without license. By the Act of Incorporation 7 Vic. ch. 68, the Church So- ciety of Toronto is enabled to ho'd real estate without any license for that purpose. The Church Society of the Diocese of Toivnto V. Craudell, b> Grant, 3-11. MOTI; )NS. Hee Notice — Proouction of Documents — Injunction — Costs. 1. Motiim to commit. Service of notice of motion to commit on the solicitor of iili M 'i 210 MUNICIPAL LAW. the party charged with contempt, is good service. Gawrlay v. Riddell, 2 Cliam. R. 158. A motion to commit must be made on four days' notice. ^^'here, therefore, an application for an order to put in a better affidavit on production or be committed was made on two days' notice, the Secretary refused the motion. Broughall v. Hector, 2 Cham. R., 434. 2. Made by leave of Judge. It is no objection to a motion made by leave of a Judge, that the name of the Judge granting leave is not given in the notict' of motion. Lindsay Petroleum. Co. v. Ilurd, 2 Cham. R., 387. 3. For order to execute deed. An application for an order to compel a party to execute a deed directed to be executed, should be on notice, and will not be granted ex parte. IVestmacott v. Cockerline, 2 Cham. R., 442. M ULTTFA RIOUSNESS. See Demurrer — Pleading — Answer — Administrator, «fec., V. MUNICIPAL LAW. See Principal and Surety. Municipal Treasurer and his Sureties. See Account. I. Decisions on the subject generally in, and applying TO, the following cases : — 1 . Applying money raised fivr special purpose. 2. Agreement between two municipalities made under misappre- hension. 3. Duty of Reeve. 4. Potmr of Council to appoint person to sign dchtntnres. 6. Restraining sale of debentures. 6. Compensation to Mortga/jee for land taken for highway. MUNICIPAL LAW. 211 7. Injunction against Municipal Council. 8. Municipal Officers. 9. Rates. 1. Applying money raised for special purpose. Where a by-law was passed by a township council for raising a loan for a special purpose, it was held to be contrary to the duty of the township treasurer to apply the money to any other corporate purpose. But whei'e, in such a case, the application had been actually made before the filing of a bill by a ratepayer complaining of the application, and such application had been made in good faith, in discharge of a legal liability of the township, and the township council approved of and adopted the payment, a bill by a ratepayer to compel the ti-ea^urer to repay the amount and personally bear the loss, was dismissed. Grier v. Plunkett, 15 Oi-ant, 152. 2. Agreement between two municipalities made under misapprehen- sion. On the separation of three townships into two municipalities, the two corporations executed an instrument whereby the one agreed to pay to the other a certain sum as soon as certain non- resident rates theretofore imposed should become available. It was subsequently discovered that these rates had been illegally imposed, and that the supposed fund would never be available its supposed existence had been an element in determining the amount to be paid : Held, that the corporation to which the money was to be paid, was not entitled to have the agreement altered, so as to make the money payable to the other absolutely. Arran v. Amabel, 17 Grant, 163. 3. Duty of Reeve. At a meeting of a township council the Reeve who was in the chair refused to put a motion which had been duly made and seconded, whereupon the members voted on the motion without its being put by the chairman, and a majority were in favour of the motion : Held, that the Reeve had no right to refuse to put i i i' nm 212 MUNICIPAL LAW. I I the motion, and that the vote was proper and effectual. The Munidpalily of the Township of Brock v. The Toronto and Nipis- sing Railway Company, 17 Grant, 425. 4. Power of Council to appoint a person to sign deberdures. A municipal by-law for issuing debentures which had been submitted to the ratepayers and apijroved by them, contained a clause stating that the debentures were to be signed by the Reeve : Held, that the council had power to appoint another person to sign the debentures in place of the Reeve. lb. 5. Restraining sale of Debentures. A municipal corporation having passed a by-law giving a cer- tain sum in debentures by way of bonus to a Railway Company, the Company executed a bond to the township reciting that the township had agreed to give the bonus on condition (amongst other things) that sixty continuous miles of the road should be built within two years; that the debentures should not be dis- posed of by the Company until the contracts had been let and the work commenced ; and that if the road were not commenced and built as mentioned, the debentures should be returned to the municipality ; and the condition of the bund was, that in case of failure the Company would, on demand, pay over to the town- ship the sum of $50,000, or return the debentures. The con- tracts having been let and the work commenced as stipulated : Held, in view of the whole instrument that tlie Compf.ny should not be restrained from disposing of ihe debentures before the completion of the work. lb. 6. Compeasition to Mortgrigee for land tiken for highway. Land which had been mortgaged by the owner, was taken b}' a township council for a road, and the compensation having been ascertained by award, the corporation paid the amount to a creditor of the mortgagor, by whom it had been attached : Held, that the mortgagee had the prior right; that his moitgage being a registered mortgage, the corporation must be taken to have acquit ed the land with notice of it ; and that the mortgagee was entitled to recover th^ amount from tho corporation with costs. Dunlop V. The County of Yoik, IG Grant, 216. Nipis- NEXT FRIEND. 213 7. Injunction against Municipal Council. Where for the purpose of erecting a market house, a munici- pal council would require to levy a rate which would exceed the amount of two cents in the dollar allowed to be imposed by sec- tion 2-5 of the Municipal Act, it was held that a ratepayer was entitled to an injunction restraining the erection of the building by the council. IVilkie v. The Corporation oj Clinton, 18 Grant, 557. 8. Municipal Officers. It is culpable neglect of duty on the part of municipal officers not to see that separate accounts for special rate, sinking fund, and assessment for general purposes are kept as directed by the statute. IVilkie v. The Corporation of Clinton, 18 Grant, 557. 9. Rates. The limit of two cents in the dollar, by the Municipal Act of 1866, as the maximum of assessment, includes the special sink- ing fund rate to be levied in respect of past debts. lb. MUTUAL RIGHTS. See Canal. NAVIGATION, IMPEDING. See Injunction, II. 7. NEGLIGENCE. See Solicitor. See Hearino. NEW HEARING. See Evidence, I. 9. NEW TRIAL. NEXT FRIEND. See Security for Costs, 1 — Appealing, V. (2) — Adminis- tration. 1. When a bill is filed by a next friend, if he is not a person h ''It 214 NEXT FRIEND. I; I of substance, the plaintiff will be required to give security for costs. The proper order in such case seems to be to stay proceedings until the next friend is changed or security given. Leiahman v. Eastwood, 2 Cham. R, 88. 2. A motion to change a next friend must be on notice. East- man v. Eastman, 2 Cham. B., 183. 3. The next friend of an idiot stands in the same position as the next friend of an infant, and is not required to establish his solvency or give security for costs. Where, however, in the bill, the description and residence of the next friend was not given, the Secretary ordered amendment to be made within a week, giving the residence and description, or the defendant to be entitled to security for costs. Sharp, v. Sharp, 2 Cham. R., 244. 4. Semble. If the next friend of a married woman makes the necessary affidavit of justification, swearing that he is worth £100 over his debts, and this is not contradicted, the question of his solvency will not be gone into. McBean v. Lilley, 2 Cham. R, 247. 5. In the case of an infant plaintiff the Court will not require security for costs, or remove a next friend because he is not a person of substance. A motion to remove a next friend on the ground that during the progress of the suit he had become insolvent was refused with costs. Re McConnell, 3 Cham. R., 423. 6. On an appeal against the report of the Master by a married woman and her husband, defendants in the suit, it is not neces- sary that the married woman should have a next friend ; such case differing from an application by a married woman alone. Hancock V. Mcllroy, 18 Grant, 209. 7. Where a manied woman defended a suit in Chancery with- out a next friend, it was held that the husband and wife could appeal to the Court of Error and Appeal without any next friend. Butler v. Church, 18 Grant, 190. w su u East- NOTICE. 21j i) 8. Where a married woman is a co-plaintiff with her husband who has a substantial interest in the suit it is nevertheless neces- sary that the wife should sue by next friend. Blackburn v. McKinlay, 3 Cham. R., 65. 7. llie test of the solvency of a next friend is, whether he is worth £100 over and above what will pay his just debts. If the allegation to such effect is uncontradicted, or the fact estab- lished by evidence, it is sufficient. When on a motion to change a next friend on the grounds of insolvency, the next friend's own cross-examination shewed him worth the necessary amount, and no evidence to the contrary was adduced, the motion was refused with costs. Stwel v. Coles, 3 Cham. R., 421. NOTICE. See Quieting Titles, 9-17 — Next Friend, 2 — Security FOR Costs, 1 — Motion, 3. Allegation in Bill as to. See Pleading. 1. Notice of motion to commit. 2. Of reading affidavit referring to document. 3. Notice of assignment for benefit of creditors. See also Title, 5. 4. Of hearing. I. Notice of motion to commit. The notice of motion to take an affidavit on production off the files, and to commit for contempt should be served on the de- fendant's solicitor and not on the defendant personally. Motions for order to commit for non-production are properly made in Chambers. Ross v, Robertson, 2 Cham. R., 66. On a motion to commit for non-production of certain docu- ments after an insufficient affidavit on production, it is not abso- lutely necessary that the notice of motion should specify what is demanded in addition to what has been produced though the Court considered such the better course. On such a notice the « 'I I 216 NUISANCE. Court will grant the lesser relipf, and order further production, but without costs. Fisken v. Smith, 2 Cham. R., 491. Four days' notice must be given of a motion to commit. Gray V. Hatch, 2 Cham. R., 12] Brougkill v. Hector, 2 Cham. R., 434. 2. Notice of reading affidavit referring to document. Where an affidavit refers to a document and notice of read- ing such affidavit is given, the document (in this case tlie «'n- dorsement on the office-copy of a bill) may be read without special reference to it in the notice. Johnson v. Ashbridge, 2 Cham. R, 251. 3. Notice of assignment for benefit of creditors. The mere fact that certain creditors had notice of an assign- ment, without some act on their part equivalent to an accession to the trusts in the deed, or such as would ])rejudice their rights, does not make the deed irrevocable. Spooncr r. Jones, 3 Cham. R., 481. 4. Notice of hearing. Where a notice of hearing had been given, and by a mistake of the month, it was for a day past, the Court allowed it to stand, putting the parties on terms as to costs, and changing the venue for the convenience of going to hearing. Where such notice had l)een moved against before the Referei'. and the affidavits failed to negative the receipt of any other no- tice, {ind the motion consequently was refused, but leave was given to renew it : Held, that the giving time to renew the mo- tion was {. unwise exercise of discretion, and that it was open to the Judge on appeal to ignore or reverse it. Scott v. Burn- ham, 3 Cham. R.. 3;)9. NUISANCE. 1 . Street liuilway. Where on an information by the Attorney General, the rails of a street railway were found by the Court not to conform to kiction, Gray ., 434. ^Imiii. OFFICE COPIES. 217 the requirements of the Statute authorising the railway, the Court granted a decree for the removal of the illegal rails ; but directed that the decree should not go into effect for a specified period so as to afford time to the Company, by proper alterations and repairs, to comply with the Statute. Attorney-General v. Street Railway Company, 15 Grant, 187. 2. Acquiescence. In 1801, while the defendant was engaged in erecting build- ings for a tannery on land adjoining the plaintifTs premises, the plaintiff encouraged the defendant to proceed with his project ; the buildings were proceeded with, and business in them was cominenced the same year ; in 18G3 additions were made to the buildings with the plaintiff's knowledge and acquiescence ; and the plaintiff made no complaint about the business until 1868, though all this time it had been carried on, and the plaintiff had been residing on the premises adjoining : Held, [affirming the decree of the Court below,] that by his conduct he had debarred himself from obtaining relief in equity on the grounds of a tan- nery being a nuisance. Hcenan v. Dewar, 18 Grant, 438. ■ a (i 1' L OFFICE COPIES. Affidavits. If office-copies of affidavits are demanded, it is imperative on the party filing the affidavits to furnish them ; and the costs of any delay occasioned by his not doing so falls on the party making such default. Bwrowes v. Hainey, 2 Cham. R., 186. Bill. The indorsement of an office-copy bill must specify distinctly which relief the plaintiff seeks, whether sale or foreclosure. Drewry v. O'Neill, 2 Cham. R., 204. Pleadings. The order to furnish office-copy pleadings when demanded is imperative, and the Court will enforce compliance with it. Tottm V. Mclntyre, 2 Cham. R., 80. iilv jf ilil im 4 M m m 218 ORDERS. %. : \ OLD DEEDS. See Quieting Titles Act, 5. ONUS OF PROOF. See Husband and Wife, 1. Mortgage, 1, 6. Of alkration in deed. See Deed, VI. OPENING BIDDINGS. 1. An order to open biddings will not be made after great dehy against an innocent purchaser, unless misconduct is shewn on the part of the purchaser. Crooks v. Crooks, 2 Cham. R., 29. 2. Where the title or proof of it is involved in no difficulty, a condition of sale that " the vendor is not to be bound to give any evidence of title, or any title deed, or copies thereof, other than such as are in his possession, or procure any abstract," was bold to be very objectionable, and should not be sanctionetl by Mii-, ters even by consent. McDonald v. Gordon, 2 f^' ix., 125. 3. Biddings will not be opened and a sale aside on the ground that a [^arty (the defendant) was prevented fi )m bid- ding by promises made to him by the purchaser ; such fact, if established, would constitute the purchaser a trustee for him, and would be subject for a suit. Brock v. Saul, 2 Cham R., Hf). ORDERS. I. Order to Produce. II. General Orders of Court. III. Irregular Orders, Setting Aside. IV. Order to RevivE; ORDER TO REVIVE. 219 I. Order to Produce. See Production of Documents — Subpcena. II. General Orders of Court. Construction of the undermentioned Orders. Orders 390, 391, 392, 393. See Title. " 163. See Time. 1. Order 560. — A motion for leave to appeal from a Master's report after the time limited has expired, need not be made be- fore a Judge. Kussel v. Bracken, 3 Cham. R., 488. 2. A direction to do an act " forthwith" is a sufficient com- pliance with Orders 288 and 293. Wallace v. Acres, 2 Cham» R., 392. 3. Orders 40 and 41 . Coates v. Edmundson, 2 Cham. R., 439. 4. Order 79. Tyrm v. Pears, 2 Cham. R., 470. 5. Order 79 applies only to copies order to amend, not to office copies of bill. Tyron v. Pears, 2 Cham. R., 470. Order 266 — Depositions irregularly taken. 6. Where a subpoena had been sued out under Order 266, and an appointment thereunder given by a special examiner at a time when no motion or other proceeding was pending : It was field to be irregular, and that the depositions taken could not be read. The attending under such a supboena was held not to be a waiver of the irregularity, the objection being to the jurisdic- tion, which no waiver could confer. Stovel v. Coles, 3 Cham. R. 362. III. Irregular Orders, Setting Aside. If an order is complained of as irregular, it is not competent to the opposite party to move to amend or alter it ; his course is to move to set it aside, and this must be done within the I I 220 PAROL AGREEMENT. ri U:\' time limited by the orders regulating the practice. Brigham V. Smith, 2 Cham. R., 257. IV. Order to Revive. 1. Where an order to revive is obtained to add a party who is an assignee of the defendant, it is not necessary to describe him in the order as assignee. lb. 2. Order of revivor improperly obtained on praecipe, set aside on terms, notwithstanding delay in making the applica- tion. The defendant, though awaie that A had no interest in the matters in question, made him a party by order of revivor ob- tained on pra3cipe. A was then, and for some time afterwards, under the belief that he had been made a party properly, and, even after he had found out that he had been made a party improperly, he did not apply to have the order of revivor set aside as against him, till he found that he was prejudiced by it, he then petitioned to have the order set aside as against him, and the Court granted the application on the terms of his pay- ing the costs of the petition and any costs that had been in- curred by his having been made a part^ . Smith v. Gunn, 2 Cham. R, 230. 3. When a suit became defective, and is proceeded with without an order to revive being taken out, a subsequent appli- cation, by petition, to sujiply the defect by adding parties is not improper ; but the new parties n)ay not be bound by the pro- ceedings in their absence. Peck v. Bucke, 2 Cham. R., 294. PAROL. Gift by. See Gift by Parol. PAROL AGREEMENT. See Deed, V. A parol agreement in reference to land partly performed, by execution of deeds, was enforced. Shennan v. Parsill, 18 Grant, 8. PAROL EVIDENCE. 221 C contemplated the erection of a saw -mill on land which he owned, but he required the privilege of backing water on the lands of four o<;her persons having lands farther up the stream ; from three of these persons he obtained, through the agency of the fourth of them {E) the right, by deed, of backing the water to whatever extent would be occasioned by a dam nine feet high. The fourth {E) verbally gave the same right, but executed no writing. C thereupon erected a dam seven feet six inches high; but finding this insufficient, he, some years afterwards, desired to raise it further. Held, by the Court, on appeal [Spragge, C, and MoWAT, V.-C, dissenting], that E.'s agreement was not binding to any greater extent than C. had taken advantage of in erecting his original dam. Hendry v. English, 18 Grant, 119. A parol agreement to add two per cent, to the rate of interest rcacrved by a mortgage, in consideration of an extension of the time for payment, was held insufficient to charge the extra in- terest upon the land. Tctten v. IVaison, 17 Grant, 233. An alleged parol agreement, said to liave been entered into contemporaneously with a covennnt under seal, was not per- mitted to control the covenant, the parol agreement having been proved by one witness only, whose intention to speak the truth was admitted on all hands, but the accuracy of whose recollec- tion v/as not confirmed by other evidence. Leivis v. liobson, 18 Grant, 395. ">s PAKOL EVIDENCE. See Absolute Deed — Mortgage, I. 15; V. 5 — Evidence — Agent, III. — Special Performance. In a suit to enforce a trust, the 7th section of the Statute of Frauds not being set up by the answer, it was held that tlie trust might ha shewn by parol, and might be shewn to be diffe- rent from the trust stated in the answer. Shaw v. Shaw, 17 Grant, 282. t'Mn ,i 222 PARTIES. 'ii'i f ; -1. 4 ... PAROL TRUST. See Mortgage, 7-10— Trusts, &c., 7. To establish a Trust. PART OWNER, See Injunction. PARTIES. See Administration, III. — Dower — Examination, I. — In- junction — Pleading — Tax Sale — Will — Railway — Partnership, I. 7 — Judgment, 6 — Mortgage, V. I. Parties to Bills and Informations. II. Parties to Petitions. I. Parties to Bills and Informations. 1. A plaintiff filed a bill to enforce a legal right only, and, in the course of the proceeding, it appeared that there were others in regard to whom it was a question, proper to be dis- cussed, whether they had not an equitable right in the subject of the suit ; one of whom had not been made a party, and the other had failed in a legal defence which he had set up, but the point was not raised by the parties ; the Court, under the cir- cumstances, ordered the cause to stand over without costs, in order to add parties ; the party so failing in his legal defence to be at liberty to put in a supjilemental answer, if so advised. Wilson V. Proudfoot, 14 Grant, 630. 2. Where a bill seeks the desti-uction of trust estate, some or one of the cestuis que trust are necessary parties. In order to the proper constitution of the suit, the husband of a female mamed plaintiff must be made a defendant thereto. Baker v. Traivor, 15 Grant, 252. 3. To a suit by a second incumbrancer, to redeem the prior incumbrancer, the owners of the equity of redemption are neces- sary parties. L^ng v. Long, 16 Grant, 239. 4. The plaintiff was execution creditor of one S, who became PARTIES. 223 a mortgagee of the premises in question. To a suit instituted by a prior mortgagee the plaintiff was not made a party. Held, that the plaintiff's position as execution creditor of aS* was that of a derivative mortgagee in invitum, and, as such, he ought to have been made a party to the suit by the prior incumbrancer. Darling v. Wilson, 16 Grant, 255. 5. A vendor devised his estate to trustees, and, on a division of the estate among the cestuis que trust, the trustees conveyed to one of them the sold property ; these facts appeared on a bill by the purchaser against the grantee for specific perform- ance ; the defendants set up by answer that the executors and trustees were necessary parties ; the Chancellor, at the hearing, overruled the objection, and the Court of Appeal sustained the decree. [Draper, C.J., and Gwynne and Galt, JJ., dissent- ing.] Butler V. Church, 18 Gi'aat, 190. 6. Where a member of a partnership whose accounts the Master was directed to take, was by order made a party in the Master's office, but on subsequent inquiry it appeared that all liability on his part was barred by the Statute of Limitations, the Master, on the application of the party added, discharged his former order, holding that he was not a necessary or proper party, and that all partnershin accounts required to be taken could be taken in his absence. Kline v. Kline, 3 Cham. R., 161. 7. Defendants pi-esented their petition for a second re-hearing, on the ground that cartsiin persons, necessary parties, were not before the Court ; but as two opportunities of making the ob- jection had been disregarded, and the interests of the parties complaining of the omission would be properly protected by making them parties in the Master's office, the petition was refused. The proper practice is to bring all necessary parties before the Court at the hearing, and not to add them in the Master's office. Paterson v. Holland, 8 Grant, 238. II. Parties to a Petition. !ii '!, ill ,hi'' 224 PARTITION. ii| A petition should set out the addition and depcription of the petitioners in the same manner and with the same certainty as a Bill of Complaint. Hunter v. Mountjoy, 2 Cham. R., 90. PARTITION. See Infant. 1. Mortgage of Undivided Share. 2. SeWng aside. 3. Infant Ejcecutor. — LiabiUtij to Account. 4. Hotchpot. 5. Advancement. 6. Agreement as to. 1. Mortgage of Undivided Share. Although partition may be directed of an estate subject to a mortgage thereon, still, if one of several co-tenauts creates an incumbrance on his undivided share, and institutes proceedings to obtain a partition of the estate, the party holding the incum- brance must be brought before the Court, so as to bind the le^al estiite : and the party creating the charge nuist ^ear any additional expense occajiioned thereby. McDougall v. McDougall, 14 Grant, 267. 2. Setting aside. An unequal partition obtained in a County Court against a minor, and feme coverte, through the contrivance of the co tenant, the wross laches of the guardian ad litem, and the misappre- hension of the Referee (appointed under the 17th s;ction of the Partition Act) as to the extent of his duty and power, was held not binding. The minor, on coming of age, filed a bill for a new partition, and a decree was made accordingly. Merritt V. Shaw, 15 Grant, 321. 3. Infant Executor. — Liabiliti/ to Account. In a suit for the partition of the real estate of an intestate, who was one of the exejutor< of his father's will, and had taken poistssion of tha peisonal esst.te, and who died a minor, «»AIlTITION. 225 it was claimed on behalf of infant legatees, who had not been paid their legacies, that an account should be taken of the per- Honal estate come to the hands of such executor, anC that their shares thereof might be charged upon the land in question before partition. He,ld, that the executor having been a minor, his estate was not liable to account therefor. Nash v. McKay, 15 Grant, 247. 4. Hotchpot. A child who has been advanced, is bound to bring into liotchpot that wherewith he has been advanced, only when it has been so expressed in writing, either by the parent or the child so advanced. Filman v. Fihnan, 15 Grant, 643. 5. Advancement. A. father placed one of his sons in possession of certain wild land, and announced his intention of giving it to him by way of advancement. He died without carrying out this intention; meanwhile the son had taken possession, and by his improve- ments nearly doubled the value of the land : Held, that the son was entitled to a charge for his improvements, and to have the land allotted to him in the division of his father's estate, pro- vided the present value of the land in its unimproved state would not exceed his share of the estate. Biehn v. Biehiij 18 Grant, 495. In such a case whether the son is not entitled to an absol.itc decree for the land. Qucere, lb. See the same point. Hovey v. Ferguson, 18 Grant, 498. 6. Agreement oa to. The adult co-heirs of an estate agreed to a partition, and bound themselves to execute quit claims to carry it out as soon as the minors came of age and united therein : some of the co- heirs went into possession of their portions and made improve- ments : some leased their interest in the property allotted to others ; but some of the minors on coming of age declined to adopt the agreement : Held, on that account, that the agreement ^ . 'jm\ < \ 1,11^ 1: 'tl§M'! i ^RTWirfflM 'fS|B 1 '!) W-\ri\ w ; \R It'll;' • (1 ■ ' ^ F .■ \ i p ■ :: rl- - of S lly?.]' •'' 1 ■iSjIHMI , I liiilB ,f .moan ! 1! 1 If 1 ! '1 ^mam ! B' ■ 1 ' I ' A fir. - ■ D JUfH^H > H ■ '} 1 1 ■• r I 226 PARTNERSHIP* was not binding on any of the parties to it -, and a decree for partition was made ; and the Master was directed to have re gard in partitioning tu the possession and improvements by the parties. Wood v. Wood, 16 Grant, 471. PARTNERSHIP. I. Rights of Partners as against each other, and suits BETWEEN. 1. Dissolution brought ahoui \y had faith. 2. Statute of limitations. 3. Division of losses. 4. Agreement acted on not signed by one partner. 5. Statute of Frauds. 6. Costs in mits between. 7. Partners retiring to he indemnified by the continuing part- ners. Parties. 8. Agency. II. Suits against and rights of creditors. I. Rights of Partners as against each other, and suits BETWEEN. I. (1) Dissolution brought about by had faith. The plaintiff and defendants were partners. The defendants, before the expiration of the term, induced the plaintiff to agree to a dissolution ; a valuation of the assets was thereupon made by the defendants and a settlement took place founded on such valuation under the erroneous impression on the part of the plaintiff, that one of the defendants was to retire from the busi- ness and that the interest of the other defendant in the valuation was identical with the interest of the plaintiff : while the fact was that the defendants had entered into a private agreement that after settling with the plaintiff the stock should be sold for the joint benefit of the defendants, and that they should share equally the proceeds and carry on the business : Edd^ t >« PARTNERSHIP. •227 that by reason of this deceit the transaction was not binding on the plaintiff. O'Connor v. Naughlon, 14 Grant, 428. I. (2) Statute of limitations. In partnership suits the defence of the Statute of Limitations is not available unless six years have elapsed before the filing of the bill since the dealings of the partners wholly ceased. Storm V. Cumberland, 18 Grant, 45. I. (3) A partnership was formed between two civil engineers and architects, the profits of which were to be divided in shares of three-fifths and two-fifths. During the continuance of the part- nership they invested moneys of the partnership in the purchase of real estate, which resulted in a loss : Held, that the loss was to be borne by the partners in the same proportion as they were to share the profits and loss of their other business. lb. I. (4) Agreement acted on, not signed by one partner. Several proprietors of salt wells entered into an undertaking to sell their products through trustees, and in no other way ; and a written agreement to this efl^ect was executed by all the parties, except one, who was resident in England, and carried on his business here through an agent ; the business was carried on under the agreement, notwithstanding his non-execution of the deed, and one of the other parties having subsequently at- tempted to act in contravention of the agreement, it was held that the delay of the absent party to sign the contract could not be set up as an answer to a motion for an injunction restraining the contravention. The Ontario Salt Co. v. The Mercliants' Salt Co., IS Grant, 551. I. (5) Statute of Frauds, Delay, &c. A partnership was formed between three persons A, B and C, to dig for gold on the property of one Allan ; two of them A and B were to do the work and the third C, to pay the ex- penses ; all three were to share in the profits. The place so named was afterwards abandoned by mutual consent and the two working partners A and B removed at the instance of the 228 PARTNERSHIP. third Cto a, lot in another township (Elzevir), where they re- sumed work, C paying expenses as before : Held, that in the absence of any express agreement, it was to be presumed they were working on the same terms as at the place originally named. The plaintiff had occasion to leave the work on the 2nd March, and did not return. He filed a bill to enforce his part- nership rights on the 30th July : Held, that as there was no stipulation respecting the time he was to work, and he was not requested to resume work and no notice was given him of any complaint or intention to exclude him from the profits of the adventure, the delay did not bar the suit. C in his own name bought the privilege of digging for gold on the Elzevir lot, and subsequently formed a company by whom that lot was purchased ; Held, thattheplaintiffoneof the work- jng partners was entitled to a share of all the profits and advan- tages made by C in this transaction. There was no writing signed by C acknowledging the agency and trust ; but it was held that A and B having entered and worked on the lot, the Statute of Frauds did not apply. Burn V. Strong, 14 Grant, 651. I. (6) Costs in suit between. In a partnership suit, the reference embraced private as well as partnership transactions ; there were no partnership assets ; the suit did not involve the administration of a partnership estate ; the defendant claimed a large balance to be due to him, while the result had been a report for $418.74 in favour of the plaintiff; and there were no special circumstances in favour of the defendant : the Court charged him with the costs of taking the account. Woolans v. Fansickle, 17 Grant, 451. I. (7) Partners retiring to be indemnified by the continuing part- ners — Parties. Circumstances under which retiring partners held to be so entitled. Harper v. Knowlaon, 2 E. & A. R., 263. ly PARTNERSHIP. 229 I. (8) Agency. A member of a partnership firm cannot bind his co-partner for transactions out of the usual scope of the business of the co-partnership ; nor for things which are sometimes done by it but are of unusual or rare occurrence; where, therefore, one member of a mercantile firm, without the knowledge of his co-partner, purchased lands from a debtor of the firm in his own name which were subject to incumbrances, and for the purpose of discharging such incumbrances gave promissory notes signed by him in the name of the firm, but without the knowledge of his co-partner, the partnership was held not liable to pay the notes, although it was alleged that the ar- rangement had been effected for the purpose of more effectua'ly securing the debt due the firm. Fraser v. McLeod, 8 Grant, 268. II. Suits against and rights op Creditors. This Court 1ms jurisdiction, and will exercise it, to prevent a creditor of one partner obtaining an undue preference over the creditors of a firm by means of proceedings in this Court. Where, therefore, a purchaser at Sheriff's sale of the interest of one partner tiled his bill for an account and a receiver, and the receiver obtained possession of the stock-in-trade ; leave was granted to a creditor of the firm to take proceedings in insol- vency, and the receiver was directed to hand over the assets to the assignee in insolvency when he should be appointed. Felan V. McGill, 3 Cham. R., 68 Money borrowed by a partner with the knowledge and assent of his co-partner, is not necessarily chargeable by the creditor against the latter. For that purpose, it must appear that the money was borrowed on partnership account, or used for part- nership purposes. Hamilton v. Mcllroy, 15 Grant, 332. A mortgage with distress clause, by the legal owner of pro- perty of which, at the time, he is in possession, and to all appi.'arance in sole possession, is valid at law and in equity against an unknown partner, whose only claim to the possession, 1^ m 230 PATENT FOR INVENTION. when the mortgage veas executed, was as tenant at will. V. Parker, 16 Grant, 230. Mason A bill was filed to establish a partnership ; and, the partner- ship being proved, the usual accounts were directed, including an account of the claims of creditors : Held, that the costs of the suit should not be paid out of the fund to the prejudice of cre- ditors. Bingham v. Smith, 16 Grant, 373. PART PERFORMANCE. See Specific Performance. I ii 'i PATENT FOR INVENTION. The invention of an inclined plane in a certain form and posi- tion, as a means or appliance for directing a tool cutter, so as to produce spiral or curved grooves in a roller, was held a proper subject for a patent ; the simplicity of a new contrivance being no objection to a party's right to a patent for it. A machinist invented a machine in which an inclined plane was applied for a novel purpose ; he contemplated further im- proving his invention, but meanwhile made use of it in his workshop. Five years or more afterwards he adopted or in. vented a contrivance which was not new but which in connection with the inclined plane increased greatly the value of the ma- chine; and he then took out a patent for the improved machine. Held, that notwithstanding his prior use of the original machine, the patent was valid, and that the patentee was entitled to the exclusive use of the inclined plane. [Mowat, V.-C, dissenting.] Summers v. Abell, 15 Grant, 532. The plaintiff had obtained a patent for an improved gearing for driving the cylinder of threshing machines ; and the gearing was a considerable improvement j but, it appearing that the same gearing had been previously used for other machines, though no one had before applied it to threshing machines, it was ti '! PAYMENT OP MONEY. 231 lason pner- fling the I ore- hfld [affirming the decree of the Court below,] that the novelty was not suffici'^nt under the Statute to sustain the patent. Abell V. McPherson, 18 Grant, 437. The plaintiff introduced into a drum stove in addition to a spiral flue, which had been previously in use, a centre pipe closed at the sides and open at both bottom and top as a means of producing a greatei' amount of heat, and obtained a patent for " the spiral flue in connection with the pipe in the centre." Held, that the plaintiff's improvement did not involve any new principle or new combination, and that the patent was void. ^orth V. Williams, 17 Grant, 179. During the existence of a license the licensee cannot dispute the validity of a patent obtained by him, and afterwards as- signed by him for value to another. Whiting v. Tuttle, 17 Grant, 454. PAYMENT OF MONEY. Where money collected by the Sheriff had been posted on the evening of the 27th November, addressed to the plaintifl^s solicitor, but not received by him till after the defendants had moved for a stay of proceedings : Held, that the money was constructively in the possession of the plaintiff's solicitor as soon as it had been duly mailed ; and therefore a motion to refund it was refused with costs. McDomi v. McKay, 2 Cham. R., 354. Payment of money out of Court. Where a certain sum of money ordered to be paid to the plaintiffs under a decree had, pending a re-hearing and appeal, been paid into Court by arrangement between the parties, to obtain a stay of pi oceedings, in lieu of the security required by 3ub-sec. 4, of sec. U), of the Act relating to appeals ; and on the appeal the decree was affirmed only in part, that, part directing the payment of the money, being in part reversed by the amount being reduced to a comparatively small sum ; a motion to pay out the money to the party who had paid it in was granted by 1 i £.»"■ \ 'Mil 232 PETITION OF REVIEW. 11 the Secretary, though strenuously opposed, and his order whh confirmed on appeal to the full Court. Lindsay Petroleum Com- pany V. Hurd, 3 Cham. R., 16. PERSONAL REPRESENTATIVE. Where the interest (if any) of a deceased party is very small, the Court will not require a personal representative to be ap pointed. Montgomery v. Douglas, 14 Grant, 2G8. PETITION OF REVIEW. A debtor made an assignment of certain real estate to B., a creditor, the deed bein^ absolute in form, but intended as a se- curity for the debt , and the debtor afterwards became bank- rupt under the Statute 7 Victoria, chapter 10. Many years subsequently he filed a bill against the mortgagee's adminis- trator for an account, &c. The administrator, being ignorant of the bankruptcy, consented to a decree, referring it to the Mastei' to take the necessai'y accounts on the footing of the assign- ment being a security ; but on afterwards discovering the fact of the bankruptcy, he filed a petition setting up the bank- ruptcy, and claiming relief against the decree. Held, that the consent to the decree was no bar to relief ; and that the decree should be set aside, and the bill dismissed with costs, unless the assignee in bankruptcy was willing to adopt the suit and be- come bound by it. Hatch v. Boss, 15 Grant, 96. The Court has jurisdiction in a proper case to entertain an application by a party served with an office copy of the decree under the general orders of June, 1863 (No, 6, rule 6), after the expiration of the 14 days thereby limited. To support an application after the time limited for leave to file a petition of review, the longer the delay has been, and the less satisfactorily it is explained, the stronger the case should be on the merits ; where, after five month's delay, an applica- tion was made to impeach the will on which the decree was PLEADING. 233 r Was Com- founded, and the application was supported by affidavits of belief only, in a 9. Compensation. 10. Adoption of contract. 1. Agent receiving Mortgage money. A had authority to collect rent, and to contract for the sale of property, and to receive the down payments. Held, that such authority did not entitle him to receive payments on a mort- gi'tge given for unpaid purchase money. Where such an agent had at one time, without authority re- ceived some payments on such mortgage, which the principal did not publicly repudiate, and another mortgagor who did not appear to have had notice of these payments, made a payment to the agent, on his mortgage, fourteen months after the agent had ceased to receive any mortgage money, such payment was held to be not a good payment. Greenwood v. The Commen-dal Bank of Canada, 14 Grant, 40. 2. Trustee. At a sale of lands under a writ of execution, the nephew of the execution creditor, a person without means, attended at the sale, and bid off the property ; and, on a subsequent day, pro- duced to the Sheriff the receipt of the plaintiff in the writ for the amount bid at the sale, and paid the Sheriff his fees, who thereupon conveyed the lands sold to the nephew, who was al" lowed by his uncle to retain the title in himself The uncle subsequently agreed for the sale and conveyance of this land to a purchaser who made default in completing the bargain, and the nephew wrote to his uncle pointing out the proper proceed- ings to be adopted to compel the purchaser to complete the con- tract. The uncle died without any further proceedings in res- pect of such contract, having by will, devised the property. The nephew, after the death of the uncle, set up a claim to be enti" tied to the property absolutely. On a bill filed by the devisee against the nephew, the Court declared the defendant to be a trustee, and ordered him to convey to the plaintiff. McDonald V. McMillan, 14 Grant, 99. 3. Fraud. Bea judiccUa. Costs. 250 PRINCIPAL AND AGENT. The plaintiffs ard their father had been in possession of the lands in qu'^stion about 20 or 30 years, the title, however, being all the while in another party. The plaintiff employed one of the defendants A F, to obtain a conveyance which he took in his own name for the avowed purpose of defeating the claim of one P, from whom a lease had been taken by the plaintiffs, and in a suit by F against the plaintiffs to establish his right to the land, one of them swore that the deed to the defendant (the agent) was bona fide and for his own benefit ; and subsequently to the dismissal of the bill in that suit, the plaintiffs took a lease of the premises from A F : Held, that the circumstances did not preclude the plaintiffs from establishing the agency of A F, and afterwards shewing themselves entitled to the land as owners, and that the dismissal of the bill in P's suit was not res judicata of the question involved in this, but under the circum- stances, the Court while granting to the plaintiffs the relief to which they proved themselves entitled, refused them any costs of the proceedings to establish their right. Washburn v. Ferris, U Grant, 516. 4. Bank stock. A trustee or agent has no right to invest in Bank stock with- out authority, but that rule does not apply where the cestui que trust or principal is of full age and competent in point of law to act for himself, and gives his sanction to such investment. It is a settled rule that a trustee or agent authorized to make a purchase for his cestui que trust or principal cannot make the purchase from himself without disclosing the fact. Such trans- actions are so dangerous that they are wholly forbidden and are not merely declared void where damage has arisen from them, or fraud was mixed up with them. Accordingly, where an agent, authorized to invest in Bank stock appropriated to his principal some shares of his own and rendered an account as if he had purchased so many shares for her, his principal, years afterwards on the fact coming to her knowledge, was held entitled to repudiate the transaction, with- out any inquiry as to the fairness of the rate which she had PRINCIPAL AND AGENT. 251 been charged for the shares. 6S6. 6. Indemnity. Harrison v. Harrison, 14 Grant, A school trustee, by desire of the board, attended an auction, and bought for the board a piece of property for a school-site, and he signed the contract with his own name only. The board afterwards, by several resolutions, during three years, unanimously recognized the purchase as their own, and paid three instalments of the purchase money. In an estimate un- der the corporate seal, the board applied to the town council for money to pay " for school premises for a central-school, contracted for and agreed to be paid $1,570 ; for building a central school-house on said purchased premises, $7,870." It was shewn that there was no other property or contract to which this language could refer than the property or contract mentioned. The town council did not comply with the requi- sition, and ultimately trustees were elected, a majority of whom determined to repudiate the purchase : Held, in a suit against the board, by the person in whose name the purchase had been made, for indemnification in respect of the remainder of the purchase money, that the plaintiff was entitled to relief. Smith V. The School Trustees of Belleville, 16 Grant, 130. 6. Trust in foreign lands. Where a trustee of lands situated in a foreign country is resi- dent within this Province, the Court will decree an execution of the trust. SmUh v. Henderson, 17 Grant, 6. 7. Costs. A principal filed a bill against his agent for an account of his dealings, and the agent claimed by his answer that the princi- pal was indebted to him. On taking the account, however, a balance was found against the agent of $282. The Court or- dered the defendant to pay the costs of the suit. lb. 8. Liability of Agent. It is the duty of an agent to defend an action improperly in- 262 PRINCIPAL AND AGENT. stituted against his principal : where therefore an insurance company had been carrying on business in this country, and having ceased to do so, paid off u clerk who was immediately employed by a firm of which the agent of the company was a member ; notwithstanding which the clerk sued the company for his salary, and the agent allowed judgment in the action to go by default, and paid to the plaintiff in the action the amount of the judgment : Held, that the agent was not entitled to cre- dit for the amount so paid on taking an account of his receipts and payments on behalf of the company : that the utmost to which he could be entitled to credit was the excess of the salary at which the clerk had been engaged by the company over and above what he had received in his new employment. Jay v. McDonell, 17 Grant, 436. Where, on an insurance company relinquishing business, a quantity of office furniture was in the possession of the agent which was not forthcoming, it was held, that it was*the duty of the agent to have made proper entries shewing what had be come thereof ; and in the absence of such proof that his estate was properly chargeable with its value. lb. 9. Compensation. R, who was engaged in the lumber business, employed S as his agent, and by letter agreed to pay him $10 per 1,000 cubic feet on all timber that S manufactured for him, which rate (the letter said) " includes purchasing, superintending the making, and attending to the shipping of the same." R paying all tra- velling expenses. S bought a quantity of timber for R which was not manufactured under the superintendence of S : Held, that he was entitled to a reasonable compensation for this ser- vice ; and there having been considerable delay in enforcing payment, caused by R having obtained an injunction restraining (S from proceeding at law, it was held that he was entitled to interest on the amount of his claim. Ridley v. Sexton, 18 Grant, 680. A paid agent whose duty it is to receive from other agents moneys due to the principal, is bound to take steps for the re- PRINCIPAL AND SURETY. 253 ' covery thereof, unless he shows that had he taken pvoceedings to enforce payment, or that there was reasonable ground for believing that if proceedings had been taken, they would have proved ineffectual. Bidley v. Sexton, 18 Grant, 580. 10. Adoption of Contract. A company was formed in England with a limited liability, for the purpose of carrying on business at Oshawa in this Pro- vince ; the managing director at Oshawa, without authority, contracted for the purchase of some real estate for the use of the company at Oshawa, and signed the contract as « Managing Director;" for convenience the conveyance was made to the director personally, and he executed a mortgage for the unpaid purchase-money, and went into possession and used the pro- perty for the purposes of the company. The purchase was immediately communicated by him to the English directors, and they disapproved thereof, but did no act repudiating the purchase ; on the contrary, they directed the buildings to be insured. Held, that this conduct was an adoption of the con- tract by the directors ; that they had power to adopt it, and had the power of binding the company, and that the company were liable to the vendor for the purchase-money. Conant v. Miall, 17 Grant, 574. PRINCIPAL AND INTEREST. See Receiver. PRINCIPAL AND SURETY. The Subject Generally. 1. Subrogation of right. 2. Recognizance. 3. Effect of giving time. 4. Release of debtor by mistake. 6. Discharge of surety, 6. Concealment of facts from, sureties. 7. Lapse of time, dc. Municipal corporation. and his sureties. Treasurer thereof 254 PRINCIPAL AND SURETY. 1. Suhrogation of right S was surety to B for a debt, for which A, the principal debtor, gave a mortgage to 5 as a further security. The credi- tor recovered judgment against the surety, and sold his lands under execution. While the^. fa. was in the sheriff's hands, and before the sale, S mortgaged the lands to creditors of his own : Held, that as the surety would, on paying the debt to B, have been entitled to the benefit of the mortgage which the principal debtor had given to B, so where the lands of S were sold to pay the debt, and the mortgagees of S were thereby deprived of them, these mortgagees were entitled to the bene- fit of the original mortgage as against any subsequent assign- ment of the mortgage by the mortgagee, and any subsequent mortgage by the mortgagor. Quay v. ScuUhorpe, 16 Grant, 449. 2. Recognizance. Two persons became bound for the due appearance of a person confined in gaol on a criminal charge, and the recogni zanoe was prepared, as if the accused and his two sureties were to join therein ; but the magistrate discharged the pri- soner without obtaining his acknowledgment of the recogni- zance : Held, that the sureties were liable. Rastall v. The At- torney-General. In Appeal, 18 Grant, 138, reversing 17 Grant, 1 [Spragge, C, Mowat and Strong, V. CC, dissenting]. 3. Effect of giving time. After judgment had been recorded against a debtor and his surety, the party holding the judgment, entered into an agree, ment with the debtor, to extend the time for payment, and a bill was afterwards filed by the surety claiming to be dis- charged by reason thereof : Held, that under the circumstances the surety was not discharged. Duff v. Barrett and Thornhury, 16 Grant, 632. On the rehearing of this cause, it was held by Spragoe, C. [Mowat, V.C, dubitante\, that time given by a creditor to his principal debtor after judgment recovered against the surety, did not discharge the surety ; and also that, independently of PRINCIPAL AND SURETY. 255 thai ground, the debtor having stipulated to obtain the surety's consent for time, the agreement for time was thereby made conditional on such consent being given, and that the surety was not discharged. S. C, 17 Grant, 187. 4. Release of debtor by mistake. A creditor, by mistake, executed an absolute release to his debtor, but the agreement was that the creditor's right against a surety should be reserved : Held, that the surety was not discharged, and that the creditor was entitled to a decree in equity to that effect. [Spragge, C, dissenting.] Bank of Montreal v. M'Fanl, 17 Grant, 234. 5 Discharge of surety. A surety cannot get rid of his liability on the ground of having become surety in ignorance of material facts, unless he can show that information was fraudulently withheld from him. The Municipal Corpwation of the Toivnship of East Zorra v. Douglas, 17 Grant, 462. Mere negligence by the obligee in looking after the principal, in calling him to account, or in requiring him to pay over money, is no defence against either antecedent or subsequent liability of the surety. Ih. A township council tacitly permitted the treasurer of the township to mix the township money with his own : Held^ that this conduct was wrong, but did not discharge the treasurer's sureties. lb. The plaintiff who was endorser on a note made by one McF to a bank, shortly after the making thereof made a mortgage to the bank to secure the debt, which was stated in terms to be an additional security for the payment of the note and any re- newal or renewals thereof. Subsequently the bank absolutely discharged the principal debtor : Held, (1) that the position of the surety was not changed by the making of the mortgage. (2) That the surety was discharged although it was shewn that by the agreement between the principal debtor and the bank, the 256 PRINCIPAL AND AGENT. surety was still to be held liable. Gumming v. The Bank of Mon- treal, 16 Grant, 686. 6. Concealment of facts from surety. To invalidate a bond given by sureties on the ground of ma- terial facts having been concealed from them until after they had executed the bond, it must appear that the concealment was fraudulent. Peers v. Oxford, 17 Grant, 472. A county treasurer had, through a misapprehension of what was the proper course, been allowed for many years to mix all county money with his own, and had used for his private pur- poses a large sum received in that way ; in this state of things he had occasion to give to the corporation a new bond with two new sureties, shortly after giving which, it was ascertained that he was unable to pay his balance to the corporation ; and the sureties filed a bill to be relieved from their bond on the ground of the treasurer's misconduct and of the uncommunicated know- ledge of that misconduct by the representatives of the coi-pora- tion at the time the bond was given. But the Court, being of opinion that most of the facts relied on as proving misconduct were known to the sureties, and that no information had been withheld from them fraudulently, held the bond to be valid. lb. 7. Ijapse of time, ^c, Municipal Corporation, Treasurer thereof, and his sureties. One of the sureties for the treasurer of a municipal corpora- tion being desirous of being relieved from his suretyship, the treasurer offered to the council a new surety in his place ; and the council thereupon passed a resolution approving of the new surety, and declaring that on the completion of the necessary bonds, the withdrawing surety should be relieved ; no further act took place on the part of the council, but the treasurer and his new surety (omitting the second surety) joined in a bond conditioned for the due performance of the treasurer's duties for the future, and the treasurer executed a mortgage to the same effect ; the clerk on receiving these gave up to the treasurer the old bond, and the treasurer destroyed it ; eight years after- PRINCIPAL AND SURETY. 267 wards, a false charge was discovered in the accounts of the trea- surer of a date prior to these transactions : Held, that the sure- ties on the first bond were responsible for it. The County of Frontenacv. Breden, 17 Grant, 645. The mortgage was on property which tlie treasurer had pre. viously mortgaged to the sureties for their indemnification : the mortgage to the sureties had not been registered, but had been left with the clerk of the council for ^iufe keeping ; on receiving the new bond and mortgage, the clerk gave 'p to the treasurer the unregistered mortgage as well as the old bond, and the treasurer destroyed both : Held, that the old sureties were enti- tled to a first charge on the property for their indemnification in respect of the newly discovered defalcation. lb. A surety to a municipal corporation for the due performance of the treasurer's duties is not relieved from his responsibility by the negligence of the auditors in passing the treasurer's accounts. lb. The fact of the treasurer having become reduced in his cir- cumstances after the auditing and passing of his accounts and before the discovery of an error in them, is no bar to a suit against the surety. lb. Where a corporation having a debt to pay, which it is their advantage to discharge immediately, raised money upon an ac- commodation note of an individual and applied the money to the payment of the debt, promising to protect the note or to repay, relief was given in this Court against the corporation upon a breach of the promise. And if the corporation could have been compelled to pay the debt the person so giving his note would be entitled to stand in the place of the corporation creditor. Bumham v. Peterboro\ 8 Grant, 366. County Treasurer and his surety. A bill for an account was held to lie at the suit of a munici- pal corporation against their treasurer and his sureties. lb. a 258 I ; PRIORITIES. PRIORITIES. See Mortgage, IV. G recovered a judgment against Z),and afterwards, though in insolvent circumstances, assigned the same by two assignments to his attorney, one for costs due him by 0^ and the other for a debt due to R by G. Afterwards C obtained a judgment against G and attached the debt so due to him by 2>, and gave notice of the attachment to D before the assignee of G had given notice of his assignments. D paid the moneys due to G by himself to the Sheriff under an execution issued at the in- stance of the assignee of G. Held, (1st) that the mere fact of C having been the first to give notice could not entitle him to priority over the assignee of G, but that, by reason of the insol- vency of G, the assignments were void under statute 22 Vic, chap. 96, sec. 9. (2nd) That the solicitor of G must be restricted to the costs incurred by him in the action brought, by G against D, and that R must stand as an ordinary creditor. Davidson v. Douglas, 15 Grant, 347. The mortgagor of the lands in question having made an as- signment in insolvency, subsequent, however, to the execution of the plaintiff, and it appearing that there was a surplus after payment of all claims proved against the lands in the suit by the prior mortgagee, it was held that, in the absence of proof of ■waiver by the plaintiff of his rights, the plaintiff was entitled to priority as against the creditors of the mortgagor under the as- signment in msolvency. Darliuy v. Wilson, 16 Grant, 255. Two mortgages were successively taken and registered which, by mistake, omitted a certain parcel of ground which both were meant to contain. The second mortgage was subse- quently assigned for value, without actual notice of the first mortgage ; and the assignee afterwards under a decree of this Court in a suit to which the joint mortgagees were not part- ners acquired the legal estate from the original vendor's grantee, who was entitled to hold it for unpaid purchase money : Heldf that the assignee of the second mortgage was entitled as against the first mortgagee to hold the legal estate until the second PRO C0NFES80. 259 mortgage should be paid. The Merchant' a Bank v. Morrison, 18 Grant, 382. Reversed on appeal. 19 Grant, 1. Th-^re were two mortgages on certain land. having notice of the second mortgage, bought the first mortgage, and, at or about the same time, the equity of redemption, and gave to the party who was selling to him the first mortgage, a new mortgage for the sum was to pay therefor. conveyed por- tions of the land to his sons in terms subject to the mortgage which he had so given ; and he afterwards paid that mortgage off : Held, [affirming the decree of the Court below,] that these facts were not sufficient evidence of an intention to merge un- der the statute 22 Victoria, chapter 87, and that the second mortgage had not acquired priority over the mortgage pur- chased by 0. Barker v.Eccles, 18 Grant, 440. PRIVILEGED COMMUNICATIONS. See Production of Documents. PRO CONFESSO. See Answer, 2 — Service, 6. Noting pro confesso, effect of. A bill was filed imi)eaching a patent as having been obtained wrongfully ; the defendants were the patentee and his vendee, who had not paid all his purchase money. The patentee answered denying the equity claimed ; his vendee allowed the bill to be noted pro confesso : Held, that the plaintiff failing to establish his case against the patentee, the bill should be dis- missed against both defendants. McDermott v. McDermott, 2 Cham. R., 3o. To obtain an ordar to vacate an order pro con. and deci-ee, a very clear case must be made. Bank of Montreal v. fFallace, 2 Cham. R., 17. 260 PRO CONFESSO. I After a lengthy period had elapsed since the day appointed for payment in a pro confesso case, it was held necessary to give notice of the motion to take pro con. Kirchoffer v. Stafford, 2 Cham. R., 52. Held, in a pv confesso case, that the report of the Master must be filed before the day appointed for payment. Mills v. Dixon, 2 Cham. R., 53 ; see also Richardson v. Beav/pre, 54 ; and Marshall v. Balfour, 69, in same volume. A note pro con. was set aside where the affidavit of service of office-copy bill was shown to be imperfect and insufficient. Gordon o. Johnson, 2 Cham. R., 210. It is irregular to take an order pro con. where pro con. note stands in the Registrar's books unvacated. Strict service of an office-copy of the bill duly stamped will be required before an order pro con. can regularly iss'ie. Cameron v. Upper Canada Mining Co., 2 Cham. R., 215. An order will not be made to take a bill pro con. against a m.rried woman without her having had an opportunity to answer separately. White v. Church, 2 Cham. R., 203. Where defendants made a proposal for settlement before answer, and there was no promise or proposal to extend the time for answering during the pendency of the negotiation : Held, that there was no irregularity in the plaintiff's noting the bill pro con. at the expiration of the time for answering. Wliere defendant obtains an order for security for costs, it is not necessary to file affidavits shewing that the order has been complied with before the bill is noted pro con. Bolster v. Coch- rane, 2 Cham. R., 327. It is the proper practice for the Deputy Registrar to note the bill p'o con. when the bill has been served within the jurisdic- tion. Proctor V. Dalton, 2 Cham. R., 470. A motion under Order 144 Consol. Orders, to have the bill taken pro con., will not be taken ex parte. Richards v. Richards^ 2 Cham. R., 283. PRODUCTION OF DOCUMENTS. 261 PRODUCTION OF DOCUMENTS. Affidavits on. See Affidavits. A plaintiff is not bound by the defendant's ' xew of the rele- vancy or otherwise of papers he seeks to have produced, and, though defendant swears positively that the papers have no bearing upon the case made y)y the bill, the Court will order their production. Saunders v, Furnival, 2 Cham. R., 49. A party parting with papera, after service upon him of an order to produce, was ordered to produce them, to file a better afiidavit, and to pay costs. Ross v. Robertson, 2 Cham. R., 66. Letters passing between agents of a party to the cause, although written as though between themselves in confidence, are not privileged communications, or protected from discovery. Such letters are considered in the custody or power of the party in whose interest they are written, and must be produced. Such party cannot withhold part of their contents by cutting '.t portions of tlie letters. IViman v. Bradstreet, 2 Cham. R., 77. In a case between vendor and purchaser, where a defendant was called in to produce a certain letter, which he refused to produce, on the grounds " that the same is and contains an opinion from Mr. M Grath, who was then acting as my coun- sel and solicitor in the matter of the purchase of the lands and premises, upon my title to the said 'ands and premises, and be- cause the same is a communication between myself and my solicitor, relating to my said title " : it was Md to be a privi- leged communication, and a motion to commit for non- compliance with a notice to produce, was refused with costs. tnison V. Brunskill, 2 Cham. R, 147. Where a party admits documents in his possession, he is prima Jacie bound to produce them, or assign a sufficient reason why he should not. But where a party refers in his bill to documents which otherwise he would not be liable to produce, he does not by so doing create a liability to produce them. Qreen v. Amey, 2 Cham. R., 138. 262 PRODUCTION OF DOCUMENTS. Where books were in actual use by defendant, the Court re- fused to order him to make verified copies of entries relative to matters in question for use of plaintiff ; but when it was sworn on the part of the plaintiff, and not denied by defend- ant, that the latter had documents so relating which were not mentioned in his affidavit, he was ordered to produce them. McDonell v. McKay, 2 Cham. K., 141. Where a bank agent refused to produce, on the ground that he had no documents in his possession, but as such bank agent, it was held that he ought to set out in his affidavit what docu ments were so in his possession ; and it appearing from his answer, that he had taken a conveyance to himself as trustee for the bank, and that he had certain documents not mentioned in his affidavit, he was ordered to produce them, although the bank was not a party to the cause. lb. An order to produce cannot regularly be taken out after de-ree ; and an order so taken out on prcecipe, was set aside with costs. Cottle v. Fansittart, 2 Cham. R., 396. A party called on to produce documents must state distinctly in his affidavit on production, what are the documents he seeks to protect, and the grounds on which he claims them to be privileged. Wright v. The Western Insurance Company, 2 Cham. R., 403. Where documents are in the custody of the Deputy- Registrar in another cause, and are required at the hearing, an order for their production will be granted ex parte. Gainer v. Doyle, 2 Cham. R., 279. The Deputy -Registrar will be ordered to attend at trial with the papers in liis custody. But to obtain such an order, it should be shown that the papers required are the original documents, and that the production uf office-copies will not be sufficient. Chadwick v Thompson, 2 Cham. R., 389. See also Jay V. McDonell, 2 Cham R., 71. A party is not obliged to produce deeds or documents which relate to his own title and do not tend to establish the case of PURCHASE AND PURCHASER. 263 the party c&Uing for the production. Stovel v. Coles, 4 Cham. E., 9. PUBLIC COMPANY. See Railway Company. The Act respecting railways declared a shareholder liable to judgment creditors of the company for *' an amount equal to the amount unpaid on the stock held by him" : Held, (re- versing a decree of the late Y.-C. Esten) that a shareholder in an action against him by a creditor of the company could not .set off, in equity, a debt due to him by the company before the judgment was recorded. [YanKouohnet, C, and SPRAoaK and MowAT, Y.-CC, dissenting.] McBethv. Smart, 14 Grant., 298. PURCHASE AND PURCHASER. See Mortgage II. 4, lY. 1 AND Purchaser. -Quieting Titles — Ybndor 1. Compensation — Delay. 2. Costs — Vesting order. 3. Purchase under mistake. 4. Purchase by agent — Parol evidence. 5. Purchase for two by and in name of one. 6. Begistered Title. 7. Purchase for value without notice. See also Fraudu- lent Conveyance. 8. Fraudulent purchase at Sheriffs sale. 9. Purchase by a Municipal Corporation. 1. Compensation — Delay. Where on a reference granted at the instance of a purchaser under a decree, the Master had found him entitled to a less sum by way of compensation for delay, &c., than the evidence ap- peared at a subsequent stage of the proceedings to have war- ranted, and he applied for further relief after an interval of 264 PURCHASE AND PURCHASER. H eleveu months, the Court refused the application on the ground of delay. Dudley v. Berczy, 3 Cham. R., 81. 2. Vesting order — Costs. Where in a suit by creditors to set aside a settlement, lands were ordered to be sold, and the proceeds paid into Court ; a purchaser after confirmation of sale paid his money into Cotirt, and had his conveyance prepared and tendered for execution to the trustees, who were absent from the jurisdiction, and who refused to execute it ; a vesting order was granted, and the costs of the motion were ordered to be paid out of the fund in Court. Lauorason v. Buckley, 3 Cham. R., 270. 3. Purchase under mistake. The rule that a party in good faith making improvements on property which he has purchased, will not be disturbed in his possession, even if the title prove bad, without payment for his improvements, will be enforced actively in this Court, as well where the purchaser is plaintiff aa where he is defendant ; and that although no action has been brought to dispossess him. Gummerson v. Banting, 18 Grant, 516. 4. Purchase by agent — Parol evidence. The plaintiff agreed with / to purchase a iT)L*iin[T Jcase for their joint benefit, the consideration for which .. <• '- ' be the testing of the ore at the crushing mill of the pia'j.i.ii .:u\d at his expense. Tn pursuance of this arrangement / c'lc niTige for the lease, but took the agreement therefor in his own name. The ore was, as agreed upon, tested at the crushing mill of the plaintiff, and at his expense, but J attempted to exclude the plaintiff from any participation in the lease, asserting that he had obtained the same for his own benefit solely : Held, that the true agreement could be shewn by parol ; and that the plaintiff was entitled to the benefit of the agreement. WiUinms V. Jenkins, 18 Grant, 536. 5. Purchase for two by and in the name of one. Where a purchase is made by one in his own name, but oa PURCHASE AND PURCHASER. 265 mnd I in the joint behalf of himself and another, the decree for payment of the purchase money may be against both. Sanderson v.. Bwdett, 16 Grant, 119. In Appeal, 18 Grant, 417, 6. Eegistered title. In a case of a registered title, a purchaser is in this country entitled to require the registration by his vendor of all the in- struments through which the title is derived. Brady v. Walls, 17 Grant, 699. 7. Purchase for value without notice. Land was sold for $400, and the purchasers bound them- selves that, in case of gold being found on the land in paying quantities, a joint stock company should be formed . and incor- porated for working the same ; and that the grantor should in that case, in addition to the $400, have $600 in paid up shares cf the capital of the company. No company was formed ; and it was held, that this contingent agreement did not prevent the grantees from defending themselves, to the extent of their in- terest, as purchasers for value without notice. Sanderson v. Burdett, 16 Grant, 119. Where a purchase was completed, conveyance executed, and purchase money paid without notice of an outstanding equity, but a bill claiming it was afterwards filed and lis pendens registered, before the registration of the purchasers' deed : Held, that they did not thereby lose their defence as purchasers for value without notice. — lb. In case of a purchase of a mortgage security recently given on all his real estate by an insolvent father to his son, tlie purchaser, if he has notice of the insolvency, should, before completing his purchase, satisfy himself by proper inquiries, that the mortgage was bona fide, and good against creditors. Totten V. Douglas, 16 Grant, 243. [But see S. C. In Appeal, 18 Grant, 341, where it was held that the purchaser was en- titled to claim for the full amount of his claim in priority to subsequent execution creditors of the mortgagor. Mowat, V.-C.,. dissenting.] il! 266 QUALIFIED ALLEGATIONS. A mining lease for 99 years contained provisions enabling the lessor to demand, at his option, a royalty upon the proceeds of the mines, or $4,000 in lieu of such royalty ; the lessor had not exercised such option : Held, that the lessee was a pur- chaser for valuti, and that a prior voluntary conveyance was void as against him. Conlin v. Elmer, 16 Grant, 541. The owner of an equitable interest in lands under a contract of purchase made a conveyance thereof to the plaintiff, his bro- ther-in-law, and subsequently while still in possession of the land assigned the same property to third parties, in considera- tion of their giving him a lease of the ^remises, which was sub- sequently executed in the presence of, and witnessed by, the plaintiff after the deeds were completed. The plaintiff some time afterwards filed a bill impeaching the assignment and lease as fraudulent. The evidence tended to shew that the convey- ancr to the plaintiff was colourable only ; and there not being uny evidence of notice of the claim of the plaintiff, the Court dismissed the bill with costs. Semble, the defence of purchase for value without notice is available to a party, although the interest conveyed is an equit- able one only. Davison v Wells, 15 Grant, 89. Where a party claims under a quit claim deed he is, in gen- eral, not protected as a purchaser for value without notice. — Goffv. Lister, 14 Grant, 451. 8. Fraudulent purchase at Sheriffs sale. A creditor obtained judgment against his debtor's executors, and issued thereon execution against the lands of the deceased, which had been devised to a minor. The creditor interfered to prevent competition at the sale, and then bought the property at one-half its value : Held, that his purchase was not main- tainable in equity. In re Thmtos Davis, 17 Grant, 603. QUALIFIED ALLEGATIONS. On demurrer ore tenus : Held, that every material allegation in a bill must be positive. Yarrington v. Lyon, 2 Cham. R., 22. QUIETING TITLES. 267 QUIETING 'ilTLES. Decisions under the Act for Quieting Titles rblatikoto the following subjects. 1. Evidence of lost Deed. 2. Certificate. (a) Of Counsel. (b) OfShenff. (c) Of Treasurer. (d) Of Registrar, 3. Suppression of material facts. 4. IVhere Petitioner not in possession. 5. Certificate granted on a false affidavit. 6. Trust Estates. 7. Application by Vendee under inchoate contract. 8. Where Evidence doubtful. 9. Notice, &c. {See below, Div. 17). 10. Sales under Execution. 11. Purchase for value vnthoui Notice. 12. Statute of Limitations. 13. fFh&e erroneous certificate issued, 14. Tax Titles. 15. Discovery of new Evidence. 16. Practice under Act, and what necessa/ry to be establislied. 17. Title by prescription — Possession — Notice. 18. Power of sale in settlement. 19.* Affidavit of Petitioner. 20. Title passing through hands of Trustees. 21. Married woman — Security for Costs. 22. Re-investigating. 23. Possession — Disseisin, dower. 24. Miscellaneous. 25. Mutual Insurance Policies a charge. 26. Taxes. 27. Reporting by consetU. 28. Estates Tail. 268 QUIETING TITLES. 1 . Evidence of lost Deed. In seeking to prove the existence and contents of a lost deed, the affidavit of the petitioner alone as to searches is not suffi- cient ; the particulars as to searches, by whom made, where, and why there made, should, be given, and such a case gene- rally as would before a Court be sufficient to let in secondary evidence. A memorandum made in a book by a party through whom the petitioner claimed, was held not to be evidence in favour of petitioner. Re Bell, 3 Cham. R., 239. In examining a title under the Act for quieting titles, a me- morial executed by the Grantee is good secondary evidence, where the possession has been in accordance with the title so claimed. The weight of authority appears to be also that such evi- dence is admissible in ordinary suits. Re Higgim, 4 Cham. R., 128. 2. Certificate. (a) Of Counsel. The certificate of counsel in support of a petition under the Quieting Titles Act should follow the language of the 8th sec- tion of the Act, and state to the effect that he has investigated the title, &c. A certificate of counsel that he had corresponded with the agent of the petitioner on the subject of the various mattei's set forth in the petition, and believed them to be true, was hsld to be insufficient. The schedule of particulars referred to in the petitioner's affi- davit should be identified by the Commissioner in like manner as any other exhibit. Re Dickson, 3 Cham. R., 352. (i) Certificate of Sheriff. Where a Sheriff certified that he had not on a particular day any executions against the lands of a petitioner, it was held insufficient, and that he should have certified that he had not had any for the thirty days previous, and that the lands in QUIETING TITLES. 269 question had not been sold under execution for the preceding six months. Where the petitioner's title .^.'as acquired within two years before the filing of the petition, che Sheriff's certificate was re- quired as to executions against the prior owner, as any such executions, if duly renewed, might be binding upon the land. Ex parte LyonSf 2 Cham. K., 357. It is necessary that a certificate from the Sheriff of no execu- tions against the petitioner should be produced. Re Bundle, 4 Cham. R., 86. (c) Certificate of Treasurer. Whei*e the County Treasurer certified that " there is no tax charged in his office against lot, &c.," held insufficient, and that it should be shown that the return of lands in arrear for taxes for the preceding year had or had not been made by the Town- ship Treasurer ; also, that the County Treasurer's certificate should show that the land had not been sold for taxes for eighteen months preceding its date. Re Harding, 3 Cham. R., 232. {d) Certificate of Registrar. The certificate to be produced from the County Registrar as to the state of the registered title, must show what memorials were registered up to the time of registering a certificate of the filing of the petition. Ex parte Hill, 2 Cham. R., 348. 3. Suppression of material facts. A.n application for leave to pay into Court $400, as security for costs of an appeal from a certificate of title under the Quiet- ing Titles Act, having been granted by the Referee ex parte, and it not having been brought to his notice that the appeal was as to two separate parcels of land, one claimed by a husband and wife, and the other by the husband alone ; it was held that the order was bad, as these facts should have been made known to the Referee, and the order under such circumstances made upon notice. Re Howland, 4 Cham. R., 6. 'I 270 QUIETING TITLES. i. Where petitioner not in possession. The Court will not grant a certificate to quiet the title of a party who claims to be the legal owner in fee simple, but who is not in possession of the land claimed, and is kept out of such possession by a person who disputes the title of the claimant : in such a case the claimant must first recover posses- sion of the premises. Re Mulholland, 18 Grant, 628. 5. Certificate granted ex parte on a false affidavit. A certificate granted ex parte on a false affidavit was set aside with costs, notwithstanding the contention that the notices as to the service of which the false allegation was made would not have been directed had the full facts been before the Court ; the Court declining to enter into any question of merits. Re AKhford, 3 Cham. R., 77. 6. Trust Estates. Whether trust estates escheat, &c., considered. Re Adams, 4 Cham R., 29. 7. Application by vendee under an inchoate contract. The first section of the Act for Quieting Titles, 29 Vic, ch. 25, does not apply to the case of a vendee who has contracted to purchase, but who ha« not completed his contract. Where, under such circumstances, the vendee filed a petition without first ob- taining the consent of the vendor, the Court, in the exercise of its discretion under the 2nd section of the Act, refused to enter- tain the petition. Re J. G. Brown, 3 Cham. R., 158. 8. Where evidence doubtful. On a petition to quiet the title to land, the genuineness of the documents on which the potitioner claimed title having been impeached, and the evidence being doubtful, the Court refused a certificate, without pronouncing absolutely upon the genuineness or spuriousness of the documents in question. Graham v. Meneilly, 16 Grant, 661. 9. Notice, &c. QUIETING TITLES. 271 Ke The effect of a certificate under the Act is bo stringent that great particularity must be exercised by the Court in seeing that all parties entitled to notice have been duly and regularly served, and that strict proof of such service be given. The entry in a docket of a deceased solicitor stating service of a notice of application, was considered insufficient evidence of notice having been given to all the tenants entitled to notice. Ex parte Palmer, 2 Cham R., 351. Where a title by possession is relied on by a petitioner under the Act, notice of his application must, under the direction of the Referee, be given to the persons who, but for such posses- sion, would be the owners, unless it has been shown that due enquiry has been made for such persons without success. It is necessary to show that the notices posted at the Court- House and nearest Post-Oflice were continued for the period directed by the Referee. When, a year after the testator's death, a petition for a certificate was filed on the part of his devisees, notice was required to be given to the heirs or some of them. Ex parte Hill, 2 Cham. R., 348. 10. Sales under execution. Inadequacy of price, sufficient to set aside a conveyance as between private individuals, will not serve as a ground for setting aside a sale by a Sheriff under execution. The rule could only be applied in an extreme case. A Sheriff, in obedience to a writ of venditioni exponas, in No- vember, 1849, exposed for sale, by auction, and sold to the attorney of the plaintiff in the wi-it, for £70, a farm of 150 acres, variously estimated as worth £2 10s. and £5 per acre; but which was subject to three rights of dower, two of the parties being young women. In April, 1867, the party claim- ing under the purchaser at Sheriff's sale, filed a petition under the Act to quiet his title. The devisee of the execution debtor opi)osed the certificate on the grounds of improper conduct in the matter of the sale by the Sheriff, evidenced by the gross inadequacy of consideration. The Referee of titles reported in 272 QUIETING TITLES. I^^'i Ml favour of the claimant ; and, on appeal, both parties desiring An adjudication on the facts appearing in the affidavits and proceedings before the Referee, the Court affirmed the finding of the Referee, and dismissed the appeal with costs. Laing v, Matthews, 14 Grant, 36. 11. Purchase for value without notice. In proceeding under this Act to quiet a title, if it appears that the opposing claim is such that had a bill been filed by the party entitled to enforce it, the applicant would have had a good defence as a hma fide purchaser for value, without notice, tho applicant will be entitled to obtain the usual certificate of title. Cochrane v. Johnston, 14 Grant, 177. 12. Statute of Limitations. The filing of a petition, under the Act for Quieting Titles, is not such a proceeding as will save the rights of a party contes- tant, otherwise barred by the Statute of Limitations. Laing v. Avery, 14 Grant, 33. A petitioner claiming title by length of possession against the patentee of the Crown, failed to shew that the patentee or his heir had any knowledge of such possession. It was held that he must shew a forty years' possession, or such knowledge. Re Linet, 3 Cham. R., 230. Where a Referee finds in favour of a title, acquired by ad- verse possession for twenty years, against the legal paper title, his certificate must shew of what portion of the lot the claimant has been in possession : as by the occupation of one or more acres of a wild lot of land, a party will not acquire title to the whole lot, but only to so much as he is in actual possession of Low V. Morrison, 14 Grant, 192. Where a party having acquired title to land by an adverse possession for twenty years, institutes proceedings under the Acl to quiet his title, he must establish his right at his own expense : costs do not follow as a matter of course in proceed- ings under this Act ; and, QUIETING} tiTLtiS. 273 amg v. Semble, that although such adverse title is established, the applicant may be made to pay the costs of an unsuccessful con- testant. Low V. Morrison, 14 Grant, 192. 13. jyiiere erroneous certificate issmd. Where it was shewn that an erroneous certificate had been issu-;d, but not registered, and no deed or incumbrance since made affecting the land, a motion on petition that a proper certifi(?ate issue was granted ex parte. Bradley v. McDonell, 2 Cham, K, 274. 14. I'ax sales. The County Treasurer is not at liberty to become a pur,^»lim;gg,^ at a tax sale^ Under the Act for Quieting Titles, where a contestant sets up a tax sale which is found invalid, he is f,ntitled to a lien for the taxes paid by his purchase money, with the proper per- centage to which the owner would have been liable if no sale had taken place. Under the Act for Quieting Titles it is pro- per to give a further opportunity to a contestant to supply any deficiency in the proof of his title, as well as to give such op- portunity iA» the petitioner. In re Cameron, 14 Grant, 612. 15. Discovery of new evidence. In a case of considerable suspicion as to the title of & peti-^ tioner under the Act for Quieting Titles, the Court stAyed the certificate on the ground of the discovery of new evidence,, though witnesses had been twice examined viva voce, and nearly a year had elapsed since the second examination ; the appli- cants satisfactorily accounting for their not having adduced the new evidence at an earlier date. Bi'onse v. Stayner, 16 Grant, 1. 16. Practice under Jet, and what necessary to be established. Under the Act for Quieting Titles, every material fact which is capable of being proved by independent evidence, ought to be proved ; thus it is necessary to prove search for missing deeds : an afiidavit by petitioner himself of search for such deeds is insufiicient. Ex parte Wright, 2 Cham. R., 365. T m m m M 1 i lh!'i| m :!i 274 QUIETING TITLES. Proof is indispensable either that possession has always accompanied the title under which petitioner claims, or that some sufficient reason exists for not adducing such proof. lb. Where the former owner, a person of the same name as the petitioner, had conveyed the land to the petitioner a few days before the filing of the petition, and the title appeared simple, the Court called for explanations, as it was necessary to take care that the Act was not being made use of for any improper purpose, such as defeating the creditors of the owner by getting the titio of a voluntary grantee quieted before the creditors were aware of the attempt to defi-aud. lb. Where property is claimed by or on behalf of a wife under a conveyance made to her during coverture, an explanation of the transaction should be given on oath to shew that it was Imafide, and was such that the husband's creditors could have no claim on the property ; the affidavits for this purpose should be by the petitioners, and should be satisfactorily corroborated by disinterested persons of known credibility. Ex i)arte Lyons, 2 Cham. R., 357. Where the petitioner claimed the north-east part of a lot under a will devising the north-west part, and it was alleged that the word " north-west " was a clerical error in the will, all the parties interested in the opposite view were required to be served with a notice of the application signed by the Referee or Inspector, unless a case should be made for dispensing with service on some of them. lb. Where a petitiouer claimed title under an alleged convey- ance from a person whose right to an undivided half of the pro- perty in question had been established by evidence, but no cer- tificate had yet issued, the Court required an affidavit shewing the facts, and that the Court was prepared to issue a certificate to such person, and that he had full knowledge of the facts, and consented or did not object to a certificate issuing to the petitioner b«fore one was granted. Re Dovgherty, 4 Ch-m. R., 96. QUIETING TITLES. 276 Title by prescription — Evidence of length of possession— Notice to person holding paper title — Deeds. A petitioner claiming title by length of possession must prove possession for the requisite length of time by clear and positive evidence, which should be of more than one indepen- dent witness. In such a case a notice prepared and signed by the Referee should be served upon the person having the paper title, if he can be found ; but if not, evidence should be put in both of search for him and his representative, and if such search prove fruitless, possession should be shown to have been long enough against him, even though he had no notice of such possession. A mortgage more than twenty years old appeared upon the registrar's abstract. A discharge of this did not appear to have been registered, none was produced, nor was any proof given of the mortgage ever having been discharged. It was stated on affidavit that nothing was known of the mortgagee, and that no demand had ever been made for the mortgage debt, though nothing had been paid, and that no acknowledgment had been given within twenty years or more : Held, that evidence should be adduced of search for the mortgagees or their representatives. That a single ex parte affidavit that no payment or demand had taken place would not bar claims of mortgagees who could be served with notice. But if they could not be found notice might be dispensed with after a great length of time, and satis- faction presumed. Re Caverhill, 8 U. C. L. J. 50, 4 Cham. R. 17. Evidence of possession and deeds — Notice to person in pos- session. To complete the chain of the paper title to the land to which a certificate of title was prayed, production or proof of a power of attorney from the patentee to one Johnston was required. Search had been made for it without success. Its existence was not sworn to positively by the petitioners, and the only evidence of it was an affidavit of one Page, who did not swear that he had ever seen it, and did not state his means of knowledge of its existence. ]> 1 11 fvs 276 QUIETING TITLES. There were also some suspicious circumstances with regard to a deed executed apparently in pursuance of the power. The only evidence as to possession was a statement in the petitioner's affidavit that one Hicks, to whom the petitioners agreed to sell the land in 1866, was still in possession, and that possession had always accompanied the title. No notice ap- peared to have been given to the person who was in possession. No affidavit was put in as to adverse claims served upon the person directed to receive them. The evidence as to possession and the existence of the power of attorney was held insufficient, and a certificate of title was refused until further evidence should be given to clear up the suspicious circumstances of the deed said to be executed in pursuance of the power of attorney, and affording positive proof of the existence of the power, or else shewing the exercise of acts of ownership, which would justify the presumption that a conveyance of the legal estate had been made by the patentee. Notice was directed to be given to the person in possession, and an affidavit as to the adverse claims ordered to be furnished. Re Street, 8 U. C. L. Jvl9$, 4 Cham. R., 99. V 18. Power of sale in settlement. Trustees were empowered by settlement ** to lay out and invest the whole or part or parts of the residue and remainder of the fortune of the said Georgina Huson (the settlor) so limited in trust as aforesaid in the purchase or purchases of land in fee (free from incumbrances) or such other good security as they shall think fit in England or elsewhere," and a power of sale was given to resell lands so purchased : Held, to give a sufficient power of sale to the trustees to sell lands of residue of the estate generally. In re Evans, 4 Cham. R., 102. 19. Affidavit of Fetitioner. In proceeding under i Ue Quieting Titles Act, although it is not imperative that the affidavit in proof of title should be made by the petitioner, some valid reason should be given why QUIETING TITLES. 277 Bgard tho loners that fe ap- (ssion. In the it is not so made when such is the case. Re Rundhy 4 Cham. K, 86. 20. Title passing through hands of Trustees. Where tho title had passed through the hands of a trustee to pay creditors, an advertisement was directed to be published, calling on such creditors to shew cause why a certificate should not issue. Re Bundle, 4 Cham. R., 86. 21. Married woman — Security /or costs. A married woman applying under this Act must proceed by next friend. Where parties who had been contestants, and the Referee having found against them, appealed, and the appeal was dis- missed with costs, afterwards applied to have a re-investigation of the title, on an application by the original petitioner, pro- ceedings were stayed until tLe costs of the appeal were paid, and security given for costs of the present proceedings, and until a next friend was appointed for the married woman contestant, and this decision was upheld on appeal. Re Rowland, 4 Cham. R., 90. Memorial — Married woman — Conveyance — Possession. A conveyance executed by a mamed woman and her hus- band in the year 1825 was lost : Held, that the registration of the memorial was no evidence of the wife having been exa- mined, or a certificate of the examination having been indorsed on the deed. Long possession in connection with other cir- cumstances may entitle a court or jury to presume the due exa- mination and certificate, without express evidence of such exa- mination and certificate. Re Higgins, 4 Cham. R., 128. 22. Reinvestigating. The Court will, in the interests of justice, exercise a liberal discretion in extending the time for appealing, or reinvestigat- ing a title, where any error is alleged to exist, and under the circumstances it appearing that the contestants had been some- what misled as to a separate piece of land to which they sup- hl^ II ^ H 278 QUIETING TITLES. posed no claim to be asserted, the Court granted an application for a reinvestigation of the title, after the time for appealing had expired, on payment of costs. Be Howland. 4 Cham. R., 90. 23. Possession — Disseisin — Married Woman — Dower. Property owned by a married woman was in possession of her and her husband. W, their second son, lived with them ; the wife died, leaving her husband and W in possession ; the husband afterwards left the premises, but W continued to re- side there. After the death of their father, /, the eldest son of the original owner, conveyed, in 1832 to W, who was still in possession. J's wife did not join in the conveyance : Held, that there had been under these circumstances no disseisin, and J, having conveyed before the passing of the Real Property Act, his widow was entitled to dower out of the property. Re Hig- gins, 4 Cham. R., 128. Where the petitioner seeks to establish title by possession, the possession under which a title is claimed must be uninter- rupted possession, and one of the land, and should be in accord- ance with the title set up. Proceedings under the Quieting Titles Act will not be made a substitute for an action of ejectment, and a petitioner must therefore have substantially an estate in possession. Re Bell, 3 Cham. R., 239. 2i. Miscellaneous decisions. Where the question involved, on an application for a certifi- cate of title, was the legal title to the proj)erty, and the proper determination of the question de|>ended on the credibility of witnesses against, or in favour of, certain old documents which were impeached as forgeries, the Court directed an action of ejectment to be brought, in order that the question might be tried by a jury of the county where the principal witnesses re- sided, lb. Where a petitioner in proceeding under the Act, makes out his title satisfactorily, he is entitled to a certificate unless the QUIETING TITLES. 270 cation iling ., 90. on of hem ; ; the to le- 011 of ill in ', that nd /, Act, Hig. title can be successfully impeached at law or in equity ; and if ^ bill filed by the contestants impeaching the transaction, by which the claimant's title arose, could be successfully resisted by the claimant on any ground, it will form no obstacle to a certificate being granted to the claimant. Laing v. Matthews^ 14 Grant, 36. An appeal from a decision of the Referee under the Act for Quieting Titles may be to a single Judge. Ammr v. Smith, 16 Grant, 380. A contestant who is in possession of the property claimed should be permitted to point out defects in the claimant's prima facie title, before being called upon to prove his own title to the property. In 1866, J G B filed a petition for a certificate of Title to a wild lot under a conveyance executed to him in 1860 by P, the patentee. This claim was contested by S, who claimed, through divers mesne conveyances, under a deed executed in 1835, in P's name by an attorney. The good faith of the various gran- tees, through whom the contestant claimed, was not disputed ; but the question of title turned on the genuineness of the power of attorney, and of a bond which purported to authorize the execution of the deed of 1835, The impeached instrument bore date in 1833, and P had done no act in respect of the land from that time until the petitioner induced him in 1860, for a small consideration, to execute the conveyance of that date. The evidence as to the instruments was conflicting, but the Court being satisfied on the whole that the impeached instruments were forgeries by the petitioner's father : Held, that the peti- tioner was entitled to his certificate. Brcmse v. Stayner, 16 Grant, 553. 25. Mutual Insurance Policies a charge. The liabilities of parties insured in Mutual Insurance Com- panies is a charge on the property insured ; and an affidavit is necessary stating that there is no such policy in existence, or that the policies named are the only ones in existence. 2«0 RAILWAY, ETC. 26. Taxes. The Court has no jurisdiction to grant a certificate unless all taxes except those for the current year have been paid. Ex parte Chamberlain, 2 Cham. R., 352. 27. Reporting by consent. Where a petition was filed under the Act, and a person hold- ing a sherifi"s deed put in an adverse claim, it was held, that the Referee could by consent report thereon before he was ready to decide on the petitioner's title, but should not do so without consent ; that the petitioner must make out his title ; and that until he has done so he cannot generally demand an adjudica- tion on an adverse claim. In re Cameron, 14 Grant, 612. 28. Estates Tail. Whether a mortgage in the short form, under the statute 27 and 28 Vic, ch. 31, executed by the tenant in tail, has the effect of barring the entail. — Qucrre. Re Dolsen, 4 Cham. R. , 36. i ^1' RAILWAY AND RAILWAY COMPANY The Statute 19 Vic, ch. 21, incorporating theBufifaloand Lake Huron Railway Company, with power to purchase the railway therein mentioned, did not deprive unpaid owners of any lien they had for the price of land theretofore sold to the old com- pany. Pater son v Buffalo and Lake Huron Railway Co., 17 Grant, 521. The old company was held to be a necessary pai-ty to a suit by a land-owner to enfore a lien for purchase money in respect of land sold to the old company before the transfer of the rail- way to the new company ; it not appearing that the old company was interested in the question to be litigated. — lb. An i' greement, not under seal, for the sale of land to a rail- way company, for the purposes of the railway, no price being agreed on, in pursuance of which agreement the railway company RAILWAY, ETC. 281 [ess all Ex hold that ready ithout d that judica- was allowed to take, and did take, possession — is enforcible in equity. — lb. A bill alleged that the defendants A had taken from their co-defendants B their " line of railway for a certain number of years yet unexpired, and under the said agreement the defend- ants A claim to hold, run, and operate, as they are now doing, the said line of railway." A demurrer on the ground that these statements did not state sufficiently the title of the defendants A, was overruled. — lb. A Statute gave the bondholders of the Cobourg and Peterborough Railway Company an option to convert their bonds into stock, and enacted that this "converted bonded stock" and any new subscribed stock should be preferential to the ordinary stock, and they should be entitled to dividends at 8 per cent, per annum, in })riority to any dividend to the ordinary shareholders. By a subsequent Act the Company was authorized to unite with ano- ther Company, and it was declared that the two Companies and those who should become shareholders in the new company under the Acts relating to the Cobourg and Peterborough Bail- way Company, and under the deed of union, should constitute the new company : Held, that the union did not extinguish the right of the bondholders to elect. The Act authorizing the union of two incorporated companies declared, that any deed the companies executed under the Act should be valid to " all intents and purposes, in the same man- ner as if incorporated in the Act." Held, that this provision enabled the companies to bargain together in respect of the rights which each had, and to make such arrangement as their union rendered necessary ; but did not give them legislative authority over the rights of other peraons. A Statute authorized two companies to unite into one com- pany, by either a complete or a partial union ; and either of joint or separate, or absolute or limited liabilities to third par- ties. The companies agreed to an absolute union, and made no provisions for limiting the liability of the new company in respect of past transactions of the old companies : Held, that the ?m m -■0M ' ,;i i*i| 282 RECEIVER. new company thereby assumed all the liabilities of the old com- pany to third persons. Cayley v. The Cobourg and Peterborough and Marmora Railway and Mining Company, 14 Grant, 571. A railway company having become insolvent, an Act was passed estimating the claims of creditors for land taken by the company at $30,000, and the value of the whole railway pro- perty at $100,000, and directed tlat $30,000 should be applied on debts for land and the balance of the $100,000 divided |>ro rata among the other creditoi s ; the $30,000 proved more than sufficient to pay the land debts in full, and the company claimed to be entitled to the balance ; but held that the other creditors were entitled to it. In re Cobourg and Peterborough Railway Co., 16 Grant, 571. RATES. The limit of two cents in the dollar demanded by ^he Muni- cipal Act of 1866, as the maximum of assessment, includes the 8[)ecial sinking fund rate to be levied in respect of past debts. Wilkiev. The Corporation of Clinton, 18 Grant, 557. RECEIVER. Where a receiver had made an investment unauthorised by the Court, by which a profit had been made, the amount realized was directed to be added to the principal. Baldwin v. Crawford, 2 Cham. R., 9. The recognizances of a receiver will not be deemed sufficient security under the Statute. Re Ward, 2 Cham. R., 188. Although the appointment of a receiver by the proper officer of the Court should not hs lightly disturbed, still in a case where it appeared that there was personal ill-feeling between the person appointed by the Master and some of those inte- rested, and that a person who had been proposed by other par- ties to the cause was, owing to his business habits, likely to be better qualified to discharge the duties of receiver, and was -1, RECTOR, ETC. 28SP Id com- borough entirelj unexceptionable, the Court vacated the appointment made by the Master, and ordered the other to be appointed. Brant v. Willoughby, 17 Grant, 627. RECOGNIZANCE IN CRIMINAL CASES. A recognizance which was expressed to be the joint and several recognizance of the prisoner and his sureties was acknowledged by the sureties only ; and the prisoner was dis- charged without his acknowledgment first having been ob- tained : Held, that the sureties were liable. [Spraoge, C, MowAT and Strong, V.CC, dissenting.] Rastall v. The Attorney-General, In Appeal, 18 Grant, 138. RECTOR AND RECTORY LANDS. See Mortgage, VII. A lease of rectory land by the rector contained a covenant not to clear more than a certain portion of the land demised ; that the clearing should be for agricultural purposes, in con- tiguous fields, not exceeding ten acres each, such fields to be enclosed in good lawful fences, " and shall be sufficiently chopped, underbrushed, logged, and burned, according to the due course of farming and good husbandry." It appeared that the lessee's cutting was not meant to be limited to what " might be necessary in working regular clearings on the land," and the lessee, with the lessor's consent, cut and sold the timber off 1 80 acres ; but the lessee having for two years done nothing towards clearing this portion of the demised land, it was held that the delay was open to the objection of being contrary to " the due course of farming and good husbandry," and that the lessee was liable to damage's in respect thereof. Lundy v. Tench, 16 Grant, 597. By letters patent, dated in January, 1824, certain lands were granted to three parties, upon the trust, amongst others, to convey the same to the incumbent, whenever the Govem- ! - 'I ^ 284 REDEMPTION, ETC. ment should erect a parsonage or rectory in Kingston, and duly appoint an incumbent thereto, such conveyance to be upon trusts similar to those thereinbefore expressed. In January, 1836, a rectory was created in Kingston. In May, 1837, the trusts for which the patent of 1824 had been issued, having been caiTied out, and one of the trustees named therein ap- pointed rector, the other two joined in a conveyance to him as such rector, to hold to him and his suceessors, subject to the use8 and trusts set forth in the grant to them. In 1842 this incumbent created a lease for twenty-one years (under which the plaintiffs claimed), whereby he covenanted for himself and Ills successors to poy for certain improvements made by the le&.sees of the premises, or that he or they would execute a re- newal lease on terms to be agreed upon, and that until such payment for improvements or renewal of lease, the lessees should retain poseession of the premises : Held, that the incum- bent, either as a trustee or rector, had no power to bind his successors to pay for improvements, or to enter into any agree- ment which a priori would extend the lease beyond the twenty- one years. Kirkpatrick v. Lyster, 16 Grant, 17. REDEMPTION AND REDEMPTION SUIT. See MoRTOAOE, III. Equity of, Where Severed. See Judgment, &c., 7. In a suit to redeem the plaintiff alleged several grounds for relief which he failed to establish, although he succeeded in showing a right to i-edeem, which right the defendant had con- tested ; the Court, under the circumstances, refused costs to either party up to the hearing, and gave the defendant the sub sequent costs of a redemption suit where the right to redeem is admitted. Boswell v. Gravley, 16 Grant, 523. The equity of i-edemption in mortgaged lands was offered for sale under execution at law, and the mortgagee bid off the pro- perty at $200 j but the sale proved to be inoperative : Held, REFERENCE. 28& and duly be upon January, |1837, the l> having lerein ap- him as it to the 842 this |er which iself and le by the cute a re- ntil such e lessees le incum- bind his ny agree- 3 twenty- inds for eded in ad con- costs to 'he sub ieem is red for le pro- Hdd, that the mortgagee could not add the amount so paid to the amount of his mortgage debt. Paul v. Ferguson, 14 Grant, 230. Where there were several defendants interested in the equity of redemption of certain property, and one purchased up seve- ral outstanding shares of co-devisees also interested, and so dealt and acted that the other parties interested assumed that he intended to redeem for their mutual benefit, instead of which he arranged with the mortgagee to suffer foreclosure and then bought from him, it was held, that he could properly do 80 for his own sole benefit. Ruttan v. Levisconte, 2 Cham. R., 108 ; see also Ardagh v. Wilson, 2 Cham. R, 70. See Appeal. REFEREE. His jurisdiction as to costs, &c. Re Lot B, 8th Con., Enniskillen, 2 Cham. R., 22. His jurisdiction, duties, &c. See Act 34 Vict., c. 10. Appeals from — Amending decree, &c. On an appeal from the Referee the case will be confined strictly to that made on the original motion, and only such pleadings or other documents as were then read will be allowed to be used. The Court will inform itself of what these were, and take notice of its own records and proceedings when it becomes necessary. When a question arose as to what pleadings had been read on a motion, the Court sent for the Referee's notes, and was guided by them. Perrin v. Perrin, 3 Cham. R, 452. The Referee's jurisdiction with rogard to amending decrees considered. Laj^ v. Lapp, 3 Cham. R., 234, afi&rmed. Lapp V. Lapp, 4 Cham. R., 3. Under decree. REFERENCE. ■■. 5 -■M 286 REGISTRATION. In an administration suit, after delay on the part of the plaintiff, the conduct of the reference was given to a solicitor representing certain creditors of the estate. The plaintiff's soli- citor, with the consent of the defendant's solicitor, but without notice to the solicitor of the creditors, or informing the Court that such solicitor had the conduct of the reference, applied in Chambers, and obtained an order to change the venue from Goderich to Stratford. Such order was on application set aside with corts. MrConnell v. McConnell, 3 Cham. R,, 122. To Arbitration. By infants. Allan v. O'Neil, 2 Cham. E., 22. Changing. McNah v. Mclnnis, 4 Cham. R. REGISTRATION. See Purchaser. I. Notice. II. Registered Judgments. I. Notice. Registry Ad of 1865. The Registry Act of 1865 (section 66) does not avoid an equity against a subsequent instrument which is registered, but was taken with notice of the adverse claim. Forrester r. Campbell, 17 Grant, 379. The principle upon which the Registry Act proceeds is, that a party acquiring land ought to see whether there is anything registered against the land he is about to acquire, and that he is assumed to search the registry for that purpose ; but this does not apply to one who is not acquiring, but parting with an interest in land. Ths Titist and Loan Company v. Shaw, 16 Grant, 446. Where the registered owner of land had parted with his in- terest therein by an unregistered deed, a person who afterwards fraudulently took and registered a conveyance from such regis- 1 1 REGISTRATION. 287 of the [solicitor iff'ssoli- J without |e Court (plied in le from ^et aside tei-ed owner, prior to the Registry Act of 1865, knowing or believing that his grantor had parted with his interest, was held not entitled to maintain his priority over the true owner though he did not know, or had no correct information, who the true owner was. McLennan v. McDonald, 18 Grant, 502. A registrar of deeds gave to an intending purchaseran abstract of title, which by mistake omitted an outstanding mortgage : Held, that a purchaser who had notice of the omitted mortgage could not make any claim against the registrar in respect of payments made by the purchaser after such notice ; and the registrar who on finding his mistake had bought up the out- standing mortgage, was held entitled to foreclose the same. Brega v. Dickey, 16 Grant, -494. Express notice of an unregistered assignment of unpatented land has the same eflfect as like notice of an unregistered con- veyance after patent. Gojff V. Lister, 14 Grant, 451. The 66th section of the Registry Act (186*^), which enacts that " no equitable lien, charge or interest affecting land shall be deemed valid in any Court in this Province after this Act shall come into operation, as against a registered instrument executed by the same party, his heirs or assigns ; and tacking shall not be allowed in any case to prevail against the provi- sions of this Act," — is not retrospective. Rachel McDonald v. Archibald McDonald, 14 Grant, 133. Constructive Notice. In case of an unregistered interest of a date antecedent to the Registry Act of 1865, and not founded upon a deed or convey- ance which was capable of registration, constructive notice is suffi- cient notice against a subsequent registered conveyance ; and pos- session of the property by the party having such unregistered in- terest is sufficient constructive notice for this purpose. The Court of Chancery in this country having frequently held, constructive notice of an unregistered interest to be insufficient where such unregistered interest was founded on an instrument capable of registration, and the want of actual notice was not wilful or fraudulent ; this rule will be continued to be acted on 288 REGISTRATION. until the different doctrine lately held by V.-C Stuart in Eng- land, and Mr. Justice Lynch in Ireland, is adopted in appeal either in England or here. Moore v. The Bank of British North America, 15 Grant, 308. The registration of a deed is not constructive notice of the grantor's interest in land not comprised in it ; and has not the same effect in that respect as actual notice of the registered deed might have. The Merchants' Bank v. Morrison, 18 Grant, 382. II. Registered Judgments. A bill was filed to enforce a registered judgment while the law for the registration of judgments was in force. After the re- gistration of the judgment the debtor executed a mortgage on his land, and then assigned his estate for the benefit of his creditors. The bill was against the debtor only, and the mortgagees and assignees for creditors were not made defendants until after decree, nor until after the time limited for bringing suits by the Act abolishing registration of judgments : Held, tisat the regis- tration of the judgment did not affect the mortgageo or the creditors entitled under the deed of trust ; and that the mortga- gee was entitled to priority over the plaintiff. Land was conveyed in trust to pay (first) mortgKges, and (secondly) registered judgment. A creditor whose judgment '"as registered before the date of a mortgage given by the debtor to another creditor assented to the deed, and his assignee afterwards filed a bill, stating such assignment and praying for the administration of the estate : Held, that the judgment cre- ditor had submitted to be paid according to the order provided by the deed. McDonald v. Wright, 14 Grant, 284. Sheriff's deed. Where a judgment was registered and &fi, fa. against lands was delivered to the Sheriff before the expiration of three years, but the sale did not take place until after the three years had elapsed, and the judgment had not been re-registered, held, that the Sheriff could only sell any land the debtor had at the time, REHEARING. 289 |fn Eng- appeal R North I of the lot the tistered Grant, the^. fa. was placed in his hands ; and that a conveyance made by the debtor before the judgment was obtained, but not regis- tered till after the registration of the judgment, took precedenc e of the Sheriff's deed. Chesley v. Coupe, 15 Grant, 214. REHEARING. Leave to rehear was given when the time for rehearing ex- pired a few days before rehearing term, and the delay had not really affected the progress of the cause, there having been no sittings to rehear causes in the interval. Stevenson v. NichoU, 2 Cham. R., 183. A motion for leave to rehear the cause after the time limited for rehearing has expired may be made ex parte. Dickson v. Bumham, 2 Cham. R., 436. A vacancy occurring on the Bench was deemed a sufficient reason for not rehearing at the first rehearing term after the n8 have h*'' own 'ich lie, L. J. 85, in Chani- ig worth he usual lered the Thompson ty of re- i under lifferent be sold ^ ffeu- of the 22, the second a title through a purchaser at Sheriff's sale of the equity of redemption of the moi'tga<;;o(l promises, there being mesne incumbrances, it was held that he did not acquire the fee in the lands, the Sheriff not having power to sell. Re Keenan, 3 Cham. R., 285. Sale, under fi. fa. of f/oods, of Equitif of Redemption in portion of nmigaged leaseholds. Purchaser from Sheriff taking assign- ment of mortgage. Right of mortgagor to redeem. The plaintiff's mortgage comprised leasehold premises held by defendant i?, the mortgagor under two distinct leases. After a decree and final order for sale, the SherifV of the county in which the leaseholds were situate advertised tlie interest of R in the premises comprised in one of the leases to be sold under a fi.fa. against the goods and chattels of R, and sold the interest to one W. IV afterwards obtained from the jilaintiff an assign- ment of his mortgage and entered into possession of the whole of the mortgaged premises, and received the rents and profits thereof, and was subsequently made a party plaintiff in the suit by revivor. Upon motion by R for a subsequent account and for reconveyance by W of the whole of the mortgaged pre- mises upon j)ayment of what was found due on taking the account; Held, that the sale by the Sheriff was invalid, and that R was entitled to a reconveyance of the whole premises upon payment of what should be found due to ^^for what he had paid the Sheriff upon the mortgage. Goold v. Rich, 4 Cham. R., 128. 4. Of timber — Delivering possession. To make valid against creditors of the vendor, a sale of timber to be cut down by the vendor, there must be an actual delivery to the purchaser f'-fter the timber is cut down, followed by an actual and continued change of possession as in the case of other chattels. McMillan v. McSherry, 15 Grant, 133. 5 . Under judgment — Priority. Where a party purchased lands at Sheriff's sale under a judgment which had been registered before the registry of cer- tain mortgages on the lands, although the mortgages had been I ';,;''li." i ; ,;fi ■k ■ «.<>wmap!B6«wi5«wra"r ! il; ! \ :J 300 SALE. made before, it was held that the purchaser took priority and aa estate in fee. Montgomery v. Shwtis, 3 Cham. R, 69. 6. Settling advertisement, confirming sale, &c. Under a decree for the sale of land or a competent part thereof, it is the mortgagor's duty to see to the parcelling out of the land directed to be sold, and if the mortgagor considers that too much is offered he should urge the objection at the time of settling the advertisement, and it should be stated in the advertisement that the unsold lots will be withdrawn from sale when the debt is realized, if that course is intended to be taken. The confirmation of a sale may be opposed before the Master, and the sale disallowed on grounds which would afford material for a motion to set aside the sale. Where the confirmation of a sale is opposed on the ground of there having been an unnecessary number of lots sold, tbe {)urchaser should be notified. Semble, the objection will not prevail against an innocent pur- chaser, when urged against the confirmation of the report on sale. Beaty v. Radenhurst, 3 Cham. R., 344. 7. Staying. Where an order staying a sale for three weeks was granted on the day the sale was to take place, and the Registrar telegmphed to the Master conducting the sale that such order was granted, and the message reached him afttT the sale, but before payment of the purchase money ; an order made by a judge in Chambers, refusing an application to set aside t!ie sale, was sustained by the full Court on rehearing. Freehold Permanent Building Society v. Chmte, 3 Cham. R., 440. 8. Tmstcefor. A executed to ^ a deed of his property in trust (amongst other things) to convert the same into money. B under the assumed authority of this deed mortgaged the property : Held, that the mortgage was not authorized by the trust for sale, SALE. 301 Iritj and an )etent part [•celling out \r considers I at the time ited in the from sale [o be taken. the Master, rd material the ground a sold, the bocent pur- le report on granted on elegraphed IS granted, e payment Chambers, led by the J Society v. (amongst inder the by: Held, for sale, and was only valid to the extent of J?'s beneficial interest (if any) in the premises. TIte Edinburgh lAfe Assurance Co. v. Allen, 18 Grant, 425, 9, Of notes. A loan of money was made for two months at two per cent, a month, at the expiration of which time it was contemplated a new aiTangement would be made. After the expiry of the two months, no other arrangement having been effected, the Court held the lender entitled oo claim interest at the rate originally agreed upon, and to sell the notes held by him as security, to repay himself the amount of his claim ; subject only to the question whether he had sold the notes for the best price that could be obtained for them ; and as to which the Court directed an inquiry before the Master. 0^ Connor v. Clarke, 18 Grant, 422. 1 0. Setting aside sale. The holder of a mortgage having become himself the pur- chaser of the mortgaged property under a power of sale con- tained in the mortgage, and afterwards under a SheriflP's sale, sold and conveyed to a purchaser who went into possession and made permanent improvements. On his purchase being set asidcj it was held that his vendee was entitled to be allowed for his improvements. McLaren v. Fraser, 17 Grant, 567. Semble, the same rule would apply if the mortgagee himself had made the improvements. lb. The "highest bidder" at an auction sale is the "purchaser" under the General Orders of the Court, and the omission of the auctioneer to declare him the purchaser will not deprive him of his position. The omission in an advertisement of sale to state that the premises are leased advantageously, will afibrd good grounds for staying the sale, but an application for such purpose should be made promptly and before sale. ■iK^ 302 SALE. Where the plaintiff, who had the conduct of the sale, assigned his interest, and an order to revive, making the assignee a party, was, a few days before the sale, taken out, but not served, and an order taken to substitute for the plaintiff's soli- citor, the solicitor for the assignee, and the case went on under the control of such new solicitor, the Court set aside the sale, although reluctantly, as great delay had been chewn on the part of the mortgagor in making the application, and he was, under the circumstances, ordered to pay the costs incurred by the new sale. Mc Alpine v. Young, 2 Cham. R., 171. 11. Miscellaneous cases relating to. It must apjjear clearly that the Master reports a sale bene- ficial for infants before a final order for sale will be made. Edxmrds v. Burling, 2 Cham. R., 48. Where a debtor dies intestate, and his lands are sold under execution against his heir for the private debts of the heir, and the purchaser has notice before his piu'chase that there are debts of the ancestor outstanding, of which the creditors claim pay- ment out of the lands seized, such purchaser takes only the beneficial interest of the heir, subject to the payment of the ancestor's debts. Peck v. Bucke, 2 Cham. R., 294. Where an irregularity had occurred in advertising a sale, but no injury had thca'eby accrued, and a fair price had been ob- tained, the Court contir?ned the sale. Cayhy v. Colbert, 2 Cham. R.. 455. The Secretary in Chambers will not entertain a motion to confirm a sale where an irregularity has occurred, unless the sale has been approved of by the Master. Tlwtnas v. McRae, 2 Cham. R., 456. A sale will not be ordered until the mortgagor has had the usual time to redeem. Trust and Loan Co. v. Reynolds, 2 Cham. R, 41. The principle upon which sales under decree of Court should be conducted, considered, and commented upon. McDonald v. Gordon, 2 Cham. R., 125. mm B, assigned assignee a but not itiff's soli- t on under the sale, n the part as, under y the new iiale bene- be made. old under heir, and 1 are debts laim pay- only the nt of the sale, but been ob- 2 Cham. lotion to iless the IcRcie, 2 had the 2 Cham. ; should onald V. SCHOOL LAW. SCANDAL. 303 In affidavit. See Affidavit, 2 (a). Plaintiff filed a bill for specific performance of a contract, alleged to be made with defendant at an auction sale of lands at which plaintiff was a bidder ; the defendant set up that plain- tiff bought as his agent, that plaintiff was sl puffer, and the sale illegal. Plaintiff moved to strike out the allegations as to the sale being illegal on the grounds stated as scandal and imper- tinence, and defendant moved that plaintiff submit to examina- tion, he having refused to answer questions relating to the alleged fraudulent features of the transaction : Held that the matter being material was not scandalous, and that plaintiff must answer all proper questions. Jones v. Huntingdon, 3 Cham. R., 117. SCHOOL LAW. Where a Board of School Trustees passed a resolution pro- fessing to adopt a permanent site for the school, and the resolu- tion was confirmed at a special meeting of the ratepayers, duly called, these proceedings were held not to prevent a change of site in a subsequent year. Where School Trustees selected a new site for the school- house, and at a special meeting of the ratepayers, duly called, those present rejected the site so selected, and chose another, but neither party named an arbitrator, held, that an arbitrator might be appointed by the ratepayers at a subsequent meeting. The power of a County Council to change the site of a gram- mar school is not lost by the union of the grammar school with a common school, though, if the new site is not also adopted by the means provided by law for the case of a common school, the change may render necessary the separation of the schools. Where the joint board of a grammar and common school, after the site for the grammar school had been changed by the County Council, wrongfully expended school money granted for I't 304 SECRET PROFIT. \ a grammar school building ; and a bill was filed against the Trustees, to restrain further expenditure, and to make them refund what had been expended, the defendants were ordered to pay the costs, but were allowed time to ascertain if all parties concerned would, under the special circumstances, adopt again the old site. It is contrary to the rule of this Court, in dealing with per- sons who have not acted properly, to punish them more severely than justice to others renders necessary ; and, therefore, where School Tirustees wrongfully expended money in building on a site which had been changed by competent authority, relief was only granted to a ratepayer who complained of the act, subject to equitable terms and conditions. Malcolm v. Malcolm, 15 Grant, 13. Arbitration betwePM Trustees and Ratepayers. A dissent by School Trustees from a decision of the rate- payers as to a site for the school should be intimated promptly ; and if not announced till after the expiration of the current year, it is too late. Coupland v. School Trustees of Nottawasaga, 15 Grant, 339. •1 SECRET PROFIT. W was the owner (subject to a mortgage) of property which M wished to buy ; R, becoming aware of this, entered into friendly negotiations with both, and bargained with IF to take $3,500, and with M to give $5,600 for the property ; R con- cealed this difference from the parties. W conveyed to M ; on her signing the deed, Rs attorney paid to her the $3,500 (less the mortgage debt), and on the deed being delivered to M, she (M) paid to R's attorney the $6,600. The facts afterward? coming to the knowledge of FT, she filed a bill against R, claim- ing the balance of the $5,600 ; and it appearing that in the negotiations he had givenj^ to understand that he was acting in her interest, and had no interest of his own, the plaiatifF was held entitled to a decree against R for such balance, with interest and costs. Wright v. Rankin, 18 Grant, 625. SECURITY FOR COSTS, ETC. 305 (inst the ce them ordered [1 parties 5t a^in ith per- I severely fe, where ig on a 3lief was i, subject colm, 15 SECRET TRUST. See Conveyance II. ~ Specific Performance. ihe rate- ■omptly ; current awasaga, y which ed into to take B con- M; on '0 (less Hf, she rwart!.? claim- in the acting iff was iterest SECURITY FOR COSTS AND OTHERWISE. See Quieting Titles, 21 — Pro Confesso. 1. Next friend. 2. Waiving. 3. For costs of appeal. 4. Of interpleader issw. 5. Staying proceedings. 6. Of infants. 7. Miscellaneous. 1. Next friend. The next friend of a married woman, who is co-plaintiff with her husband, will be required to give security for costs if it appears that he is a person of no known means, and his resi- dence not known, though it appears that the husband has a substantial interest and is not a mere formal party to the suit. Vanwinkle v. Chaplin, 2 Cham. R., 98. Held, qualifying McBean v. lAlley, 2 Cham. R., 247, as the decision in that case is stated in the head note : that the affi- davit of a next friend that he is worth $400 over and above all his debts, is only prima facie proof of his sufficiency as a next friend, and that evidence as to his circumstances may be given. Where evidence contradictory to the affidavit was adduced, which in the opinion of the Court outweighed this statement, security or a new next friend was ordered. Walker v. Walker, 3 Cham. R., 273. A feme covert plaintiff has a right to change her next friend without notice to the former next friend and without giving him security for the costs already incurred. But notice to the opposite party is necessary, because the order for security is only given on condition of the antecedent costs of the opposite W S06 SECURITY FOR COSTS, ETC. ~ i party being secured, if such a condition is desired by him. Harvey v. Boomer^ 3 Cham. R., 11. Wliere the next friend of a plaintiff has become insolvent and left the jurisdiction, the proper order to be made is, that proceedings bo <)tayed until a solvent next friend be appointed, or until security for the costs be given. McGoay v. Maladay, 2 Cham. R., 437. A next friend is liable for costs incurred while acting as such next friend, and not for other or past costs. . Where a next friend has been appointed, who jiroved to be an infant, and a new next friend was consequently appointed, an application to make the new next friend liable for the costs incurred before his appointment was refused. Poole v. Poole, 2 Cham. R., 459. Where it becomes necesaary to substitute a new next friend, the motion for the appointment should be on notice, and aji or- der taken on prcecipe is irregular. An order so taken was set aside with costs on the grounds of irregularity, and without going into the question of the solvency of the party appointed. Bennett v. Spragne, 2 Cham. R., 194. 2. Waiving. Where a defendant had by answering waived his right to security for costs, and the plaintiff assigned his interest in the mortgage, the subject of the suit, to a party resident out of the jurisdiction : it was lield, that the defendant was entitled to se- curity for costs against the new plaintiff. The fact that the suit was a foreclosure suit, was held not to disentitle the defendant to the order for security against the plaintiff, although a mortgagor, he disputing that anything was due, and the Master being directed to enquire " what, if any thing was due." Thompson v. Callagan, 3 Cham. R., 15 Security for costs will not be ordered be to given where a defendant has obtained further time to answer. Arthur v. Brown, 3 Cham. R., 396. SECURITY FOR COSTS, ETC. 307 him. Jlvent that Jinted, iay, 2 such The filing of an answer is a waiver of any claim for security for costs. Smith v. Day, 2 Cham. R., 466. 3. Of appeal. An application for leave to pay into Court $400, as security for costs of an appeal from a certificate of title under the Quiet- ing Titles Acts having beon granted by the Referee ex parte, and it not having been brought to his notice that the appeal was as to two separate parcels of landj one claimed by a husband and wife, and the other by the husband alone ; it was held that the order was bad, as these facts should have been made known to the Referee, and the order under such circumstances made upon notice. Re Rowland, 4 Cham. R., 6. In bonds for security for costs of appeal, there should bo two sufficient sureties, and, if one dies or becomes insolvent, another will be ordered to be substituted. Brigham v. Smith, 1 Cham. R., 334, overruled. Saunders v. Furnivall, 2 Cham. R., 159. It is no objection to a bond for security of costs that there is no affidavit of execution annexed. Neither is any affidavit of justification necessary until the solvency of the surety is questioned. In the case of bonds for carrying a case to the Court of Appeal, an affidavit of justification is necessary under the Order of Court of EiTor and Appeal, No. 8. A bond for security for costs need not be by two sureties unless the defendant, before the bond is prepared, gives notice that he requires two sureties. Donelly v. Jones, 4 Cham. R., 48. 4. Interpleader. The claimant under an interpleader issue, if out of the juris- diction, is bound to give security for costs. Walker v. Niles, 3 Cham. R, 108. 5. Staying Proceedings. The practice as to the perfecting of security to stay execution :-%*<-\ \m •^-^ff m fy y fmim '^'^ ««s?w.rj 808 SECURITY FOR COSTS, ETC. i ! ' :B ? Mi i :}! on appealing from this Oourt is different from the practice on appeals at law. No motion is necessary here to allow the se- curity : the onus of moving against the security being on the party objecting to it. Heenan v. Dewar, 3 Cham. K., 199. A plaintiff sueing in forma pauperis is not liable to have his suit stayed until he has paid the costs at law, or of a former suit in this Court, touching the same subject matter, unless it can be shewn that the proceedings are vexatious. Where therefore a plaintiff had been ordered to give seciirity for prior costs at law, and by another order the time for giving security had been limited and in default the bill ordered to be dismissed, and the plaintiff was afterwards admitted to sue in forma pauperis, the two orders for giving security were set aside. Casey v. McColl, 3 Cham. R., 24. 6. Of infants. An infant, out of the jurisdiction, petitioning for relief, will be required to give security for costs. Stinson v. Martin 2 Cham. R., 86. 7. Miscellaneous cases. An order directing security for costs to be given should name the sum for which the bond for security is to be given. Gans&n V. Finch, 3 Cham. R., 296. An application for an order for security for costs may be made after the expiry of the time for answering. lb. The fact that the defendant's solicitor knew that the plaintiffs had lands in the Province when he took out the order for secu- rity for costs was held a good ground of objection to the order. lb. An objection that the copy-order served was not endorsed with the name and place of business of the solicitor serving it was overruled, it not being shewn to have been the first proceeding taken by him. lb. On the plaintiff's shewing he had lands in the Province worth $4,000, an order for security^for costs obtained on prcedpe was SECURITY FOR COSTS, ETC. 309 set aside, and the order being also irregular in form, it was set aside with costs. Ganson v. Finch, 3 Cham. R., 296. If a plaintiff, residing out of the jurisdiction, is shewn to have property in Upper Canada, an order for security for costs , made against him will be set aside. OcUt v. Spencer, 2 Cham. ; R., 92. Where plaintiffs, who were resident out of the jurisdiction, had paid a certain sum into Court in lieu of security for costs, an application to have this money paid out to them was refused, although a decree for specific performance had been made in their favour, the suit not being finally terminated. Luther v. Ward. 2 Cham. R., 175. Where it appears that the residence of the plaintiff is not known, and that there is reason to believe he has left the coun- try, security for costs will be ordered to be given, although it does not appear by the bill that the plaintiff is resident out of the jurisdiction, and it is not shewn positively where he is resident. Somerville v. Ken, 2 Cham. R., 168. To bring a case within the Statute 29 & 30 Vic. ch. 24, re- quiring security for costs to be given where another action for same cause is pending, it must be clearly shewn the causes of action are identically the same, and not merely growing out of the same transaction. And qucere, does the Act apply at all to this Court, or where one action is at law and the other in this Court. Dean v. Lamp- rey, 2 Cham. R., 202. Where, on a petition against a solicitor for an account, it was alleged, and not denied, that he had large sums of the client's money in his hands, the petitioner, though resident in a foreign country, was relieved from giving security for costs. The rule requiring security for costs is not so positive and inflexible but that the Coui-t will relax it in their discretion when the circumstances of the case require it. Re Carroll, 2 Cham. R., 305. t If 310 SEQUESTRATION. Where defendants took separate orders for security for costs, and the plaintiff obtained an ex parte order giving him liberty to pay $400 into Court, instead of filing security by bond, the money so paid in was held to be security for all defendants, though the order recited one only of the orders for security. Holster V. Cochrane, 2 Cham. R., 327. A plaintiff will be ordered to give security for costs where it is shewn that he is insolvent and is carrying on the suit for the benefit of another party, who seeks to escape the risk of costs. Mason v. Jeffrey, 2 Cham. R., 15. The recognizance of a committee of a lunatic, or of a receiver, will not be deemed sufficient under the Statute. Re fVard, 2 Cham. R., 188. On an application for security for costs, it appeared that the plaintiff, though a resident of Canada, was in such circum- stances as not to be good for the costs of the suit, should it go against him ; that other persons were greatly interested in the subject matter thereof; that the plaintiff's success would ma- terially benefit them ; and that the defendant had already succeeded in an ejectment suit at law in respect of the same right on one of the grounds relied on by the bill ; but there being no evidence that the plaintiff was actually put forward by the other persons interested to try the right, or that the suit was not brought entirely at his own instance : security for costs was refused. Little v. IVright, 16 Grant, 576. SEQUESTRATION. A writ of sequestration cannot regularly be issued on prmdpe. Before such writs can be regularly issued, the order for the payment of the money must be served, and an affidavit of such service and of the non-payment tiled. A writ issued on praecipe was set aside, but without costs. FisUn V. Wride, 2 Cham. R., 212. Although, as was held in Fiskin v. Wride, a copy of the de- Jdh SEQUESTRATION. 311 oree or order, directing the payment of the money, should be shewn to have been served and a demand of payment of the money made, before a writ of sequestration can properly issue ; yet where, as frequently has been done, a writ was issued with« out an affidavit filed shewing such service and demand, and the defendant had been aware of it for upwards of a year, and had appeared on a motion to compel a tenant to attorn, it was held, that he had waived any objection, and a motion to set it aside was refused. Harris v. Meyers, 2 Cham. R., 248. The claim of a debtor to compensation for misrepresentation of parties in obtaining a patent of land, is not liable to be seized, attached, or sequestered before the amount is deter- mined by decree or otherwise. Roberts v. The Corporation of the City of Toronto, 16 Grant, 236. Chose in action. A chose in action can be reached by process of sequestration, but the right or interest of a surety in regard to the money for the payment of which he is surety, is not property of such a nature as can be reached by that process. Where therefore a mortgagee filed his bill against the assignee of the equity of redemption, to enforce by this means payment of the deficiency arising on a sale of the mortgaged premises, it was held, that the right of the mortgagor to call upon his assignee to discharge the mortgage debt was not of such a nature as could be reached. Irving v. Boyd, 15 Grant, 157. Rent to accrue due is not a chose in action, and a tenant in respect to it may attorn ; but, where the tenant having been notified by the sequestrator, promised to pay him the rent in future, and afterwards, on being indemnified, paid it to a party claiming it as assignee, he was ordered to pay it over again to the seq astrator. Harris v. Meyers, 2 Cham. R., 121. Delay in proceeding. When a sequestration had issued to compel payment under a decree, and there appeared to have been considerable delay in enforcing the payment of rents, during which period the defend- It 11 M i{mmmt mm Held, that the printer was entitled to relief in equity, and an injunction was granted to stay proceedings in the replevin suit on security being given. Dewhvrsi v. McCoppin^ 17 Grant, 672. SPECIFIC PERFORMANCE. See Statute of Frauds — Husband and Wife — Practice — Fraud, «fec. — Lease — Attorney and Client. I. Cases where performance decreed. II. Cases where decree refused. III. Where not held barred by lapse of time. IV. Miscellaneous Cases. I. Cases where performance decreed. Restraining suit for purchase money — Injunction. The vendor of real estate hav ing died before the conveyance of property agreed to be sold, leaving infant heirs, the purchaser, instead of proceeding to enforce the contract in this Court, in- stituted proceedings at law to recover back the purchase money paid, partly to the vendor and partly to his administrators, whereupon a bill was filed by the representatives of the vendor, seeking to restrain the action at law and for specific perfor- mance. The Coui't made the decree as asked, and ordered the defendant to pay costs up to the hearing. VanWormer v. Hard- ing, 14 Grant, 165. Personal services — Injunction. The plaintiff H being in possession of land belonging to the defendant and being entitled to retain such possession for an- other year, the defendant, in order to obtain immediate posses- sion agreed that in consideration thereof he would give another piece of land to the plaintiffs, husband and wife, for the life «f the wife, the husband further agreeing that he would look after and take care of the former property whenever the defen- dant was absent, and would, during winter, see to the defen- dant's cattle and stock. In pursuance of this agreement pos- SPECIFIC PERFORMANCE. 327 fty, and replevin Grant, UCTICE session was delivered of the respective parcels, and the husband rendered some services, being all that were required of him. The defendant having afterwards brought an ejectment suit against the plaintiffs, the Court held the agreement enforcible, notwithstanding the stipulation as to personal services to be rendered, and granted an injunction. Hewitt v. Brown, 16 Grant, 670. Of agreement far water privilege. A vendor agreed that the purchaser should have sufficient water to drive a saw mill and other machinery : in a suit by the vendor against the purchaser, the Court decreed a specific per- formance of the contract, treating the water and the use of the dams and booms as sold with the land : the decree to provide for this, with liberty to parties to apply from time to time. Hincksv. McKay, 14 Grant, 233. Time for paying purchase money. There is no fixed rule in England as to the time to be given by a decree for paying purchase money before the vendor is entitled to a rescission of the contract for the default. Where the decree in a vendor's suit for specific performance directed payment in a month, the Court, on a subsequent ap- plication to rescind the contract, gave the defendant, under the circumstances, a further period of four weeks to pay after service of the order; and ordered on default a rescission. Tyler V. Lavder, 15 Grant, 99. Of exchange of lands. The plaintiff and defendant agreed to an exchange of lands, the plaintiff conveying 100 acres in B, upon which there was a mortgage for $1,300, and the defendant agreeing to convey to the plaintiff whichever of two lots — one in T, the other in S— he should select : in the event of his selecting the latter it was to be assigned to him, subject to the payment of $150 in four equal annual instalments, with interest at seven per cent. The plaintiff selected the latter, but it appeared that the defendant If ^1, 328 SPECIFIC PERFORMANCE. had not yet obtained a title thereto, although he was in a posi- tion to call for a patent from the Crown on making certain payments, and which he procured the day the cause was heard. The Court, as the defendant had all along had a title to the lot, and was at the time in a position to carry out his part of the agreement, and submitted to do so, directed that the contract should be completed by conveyance of the lot in S, and that the time for payment of the $150 should date from the hearing ; from which time silso the interest should be computed. Gray v. Reesor, 15 Grant, 205. The defendants, who had some interest in gold lands, having discovered the owner of an outstanding title, employed the plaintiff to buy up the same ; agi'eeing to give the plaintiff one-fourth of the land for his trouble on his paying one- foui*th of the consideration, and to re-convey to the owner of such title another one-fourth part. The title having been bought up the defendants did re-convey the one-fourth to the owner, but refused to carry out the agreement with the plain- tiff : Held, that the agreement was such as this Court would specifically perform, and decreed the same accordingly with costs. Bogart v. Patterson, 14 Grant. 624. Time essence of contract — Tender of payment when not essential. Where the agreement was that the defendant should advance money on the purchase of land, and that the plaintiff should have the right to re-purchase the same by a certain day upon repayment of the amount so advanced, and intei'est, together with Avhat was paid by the defendant for improvements and in- surance, and it was expressly stipulated that time should be of the essence of the contract : Held, tliat although the Court as a general rule will hold a party to perform such a con- tract within the time limited, yet it is not ousted of its juris- diction, but will ad^iit him to shew a good and valid reason for its non-performance within such time, and in that case may order specific performance. The defendant having neglected to furnish a statement of his claim in respect of the advances made by him in pur- SPECIFIC PERFORMANCE. 329 upon suance of the agreement between the parties, and in conse- quence thereof the plaintiff was unable to tender the proper amount due the defendant, it was considered that the plain- tiff was exonerated from making any tender. McSweeney v. Kay, 15 Grant, 432. Possession — Delay — Part f erf wmance. An undertaking as surety must, to comply with the Statute of Frauds, name the person to whom it is given. Where a guarantee did not sufficiently comply with the Statute of Frauds, but the transaction related to an interest in lands for one year, and the principal had gone into posses- sion under the contract, and retained possession : Held, that the contract was binding on bn^^^h principal and surety, or. the ground of part performance. In such a case some of the sureties, some weeks after pos- session was taken, refused to sign a formal lease. No pro- ceedings were taken to enforce their undertaking until the year had expired and the principal had given up possession, a defaulter in respect of his rent : Held, that the delay was no bar to the suit. Tlie Corporation of the County of Huron v. Kerr, 15 Grant, 265. Continued possession by a tenant, coupled with acts incon- sistent with a tenancy, is sufficient part performance to let in parol evidence of a contract of sale. Butler v. Church, 16 Grant, 205. On a sale of land, it was agreed that the purchaser should have the privilege of paying the price by doing certain chop- ping on other lands of the vendor. No time was fixed for this work. On a bill by the purchaser for specific perform- ance : Held, that he was not to be treated as in default, so as to lose his right to specific performance, without proof of hav- ing neglected to do the work after being requested to do it« Brand v. Martin, 16 Grant, 566. Statute of Frauds. ;]:m SPECIFIC PERFORMANCE. In pursuance of a verbal agreement for the sale of lands, the purchase money being payable by instalments, to be secured by mortgage on the premises bargained for and other lands owned by the purchaser ; a deed and mortgage were drawn up, which were signed and sealed by the vendor and njortgagor respectively — neither instrument referring i ■ me other, and the deed expressing that the purchase money had been paid. The vendor and mortgagor took away the respective ni^tru ments signed by them, for the purpose as alleged, of prt umig the execution thereof by their respective wives. The vendor subsequently refused to perfect the transaction, and on a bill filed by the purchaser for specific performance : WI, th^i the conveyance so executed by the vendor was a sufficicMt ntract of sale within the Statute of Frauds ; that the presumption on the face of such instrument was that the purchase money had been paid ; which being admitted by the plaintiff" to be incor- rect, the purchaser Avas entitled to a decree for specific perform- ance, paying the price in hand. Gillattey v. White, 18 Grant, 1. II. Cases where Decree Refused. Laches. The intestate contracted with the defendant, George Brown, for the purchase of a village lot in Bothwell, and prid part of the purchase money. The vendor afterwards agreed to erect certain buildings on the premises, for which the purchaser was to pay by instalments, and the vendor wati to hold possession and receive the rents meanwhile on account. The purchaser having made default, died intestate, leaving no other means. The heirs lay by for a number of years, and until oil was dis- covered near Bothwell, and property had in consequence risen in value, and they then filed their bill to enforce the purchase, but the Court dismissed the bill with costs on the ground of laches. Walker v. Brown, 14 Grant, 237. Of agreement to lease. Where two of four trustees entered into an agreement for the lease of trust property, to the plaintiff" but without the SPECIFIC PERFORMANCE. 331 and knowledge or assent of the other two, to whom under the circumstances notice of the agreement could not be imputed, specific performance of the agreement was refused. McKelvey V. Rourke, 15 Grant, 380, Injunction, &c. An agreement for a lease provided for the building of a bam by the tenant ; the assignee of the owner, considering that a barn which the tenant had begun to build was not such as the agreement required, filed a bill for an injunction, and for specific performance of the agreement generally. The answers insisted that the barn was such as the defendant undertook to build ; the Court being of opinion that the injunction was the real object of the suit, and that the plaintiiT was not entitled to an injunc^Jon, dismissed the bill : Held, that the decree was no bar to a subsequent suit by the tenant for specific perform- ance of the agreement for a lease. Simmons v. Campbell, 17 Grant, 612. I ill Of agreement with Eailway Company. The owner of land granted to a railway company the privi- lege of crossing his property, in consideration of which the company agreed, amongst other things, to pay him $400 a year, to carry flour for him on certain favourable terms, and " to bottom out his present mill race from its present unfin- ished point": Held, that this was a contract such as this Court should not decree a specific performance of, or damages for breach of it ; but leave the plaintiff to sue upon it at law Dickson v. 'Covert, 17 Grant, 321. Of agreement not acted on, A contract in writing for the sale of land had not been acted or during the vendor's life ; possession was afterwards taken by the vendee, but no improvement was made. In a suit for specific perf)rmance brought by the vendor's heirs against the vendee's heirs after the latter had come of age, evidence was given which threw considerable doubt on the contract : Held, s^ 332 SPECIFIC PERFORMANCE. I. - '1 that the doubt was sufficient to prevent th« contract being enforced. Kelly v. Sweeten, 17 Grant, 372. Of agreement only partly expressed. A, who was the lessee of a timber limit, had an interview with B on the subject of a sale to him of part of the limit. A offered to take $400, and letters passed which amounted to a contract at law to sell at that price. A' 8 offer, however, had been made in contemplation of a reservation and condition which had been spoken of at the interview between the parties, but were not mentioned in the letters : Held, that the pur- chaser was not entitled in equity to a specific performance with- out the reservation and condition. Needier v. Campbell, 17 Grant, 592. Of agreement between father and son. A father and son entered into mutual bonds, the father agreeing that just before his death he would convey his farm to the son in fee ; and the son agreeing that he would, during his father's life, work, till, and improve the farm in a good and farm-like manner ; and would consult his father in all things Reasonable : quarrels took place afterwards ; the son treated his father badly, though he did nothing which at law would be a breach of the condition of his bond ; and ultimately the father left the farm, the son retaining possession until ejected at the father's suit : Held, in a suit by the son against his father, that the contract should not be enforced against the father. McDonald v. Rose, 17 Grant, 657. III. Where not barred by lapse of time. In 1846 the defendant contracted for the sale of a building lot in Toronto to the plaintiffs father (one of the defendant's workmen) for $500, payable in eight annual instalments ; the pxirchaser went into possession and built two small houses on the lot. He died in 185G intestate. The plaintiff, who was his only child, immediately afterwards enlisted and left Canada, leaving a power of attorney with one A to manage his affairs > he ^vas not quite of age at this time : in February, 1859, the SPECIFIC PERFORMANCE. a33 defendant brought ejectment, and A in the following March filed a bill in plaintiff's name for specific performance of the contract ; the defendant claimed that there was about $800 due thereon, and the claim appeared to be confirmed by a book produced by a book-keeper of the defendant who was examined as a witness ; the value of the property at the time was about $700 : A, believing the plaintiff's representations, agreed with him to dismiss the bill without costs, which he accordingly did, and gave up possession to the defendant. Some years afterwards the plaintift returned to the province, and discovered that not one-half the amount so claimed by the defendant was due at the time of dismissing the bill, and there- upon filed a bill for specific performance, and proved this state of the account from entries in the books of the defendant and otherwise : Held, in view of the misrepresentations of the defendant, and the absence of the plaintifi", that the plaintiff^s right to a decree was not barred by lapse of time. Larkin v. Good, 17 Grant, 585. I IV. Miscellaneous Cases — Costs. Costs. The general rule in England is, in a suit for specific per- formance, that where an abstract of title has been demanded, and a vendor only makes out a good title after bill filed by him, he will be ordered to pay the costs of the suit ; but where the question really in issue between the vendor auJ purchaser was other than of title, and was decided against the purchaser, the Court gave the vendor the costs of the suit, although a good title had not been shewn until after bill tiled, no abstract having been demanded previoussly. Haggart v. Quackenbush, 14 Grant, 701. 'r: :i lii Mortgage hy vendor after contract. A party after making a contract for the sale of land mort- gaged it, and then filed a bill for specific performance. The mortgage not being due the Court on the hearing directed an inciuiry whether the plaintiff could make a good title free from i; .1 ' ' it ' ' A ?' I 334 SPECIFIC PERFORMANCE. incumbrance ; and reserved further directions and costs in case the Master should find the plaintiflf could not clear up Uie title. ^cDougal v. Miller, 15 Grant, 505. Compensation. The advertisement of sale of a farm described the property as being " 96 acres cleared and cultivated, a good log house and frame barn 69 by 32 on the premises ; also, driving shed." Upon a survey of the property being made, it appeared that the quantity of cleared land was 74| acres under cultivation and legal fence, and 12J acres of pasture land, with some girdled trees standing, and a few logs lying upon it, which had never been cultivated and could not be until the logs should be re- moved ; the dimensions of the barn were 50 feet by 30, and there was no driving-shed upon the property. On a bill filed by the vendors for specific performance of the contract : Held, in- dependently of a stipulation in the conditions of sale providing for errors in the advertisement, that these difierences were such as entitled the purchaser to be compensated therefor ; and the vendors, having disputed the purchaser's right to such compen- sation, were oidered to pay the costs of the suit. The Canada Permanent Building Socielij v. Young, 18 Grant, 566. Reforming deed — Fraud — Conflicting equities. The defendant, a man of weak intellect, was fraudulently induced to execute a quit-claim deed of certain 'and to which he was entitled as heir-at-law, but no consideration was given for such deed. The land was ifftorwards, conveyed to the plaintiffs in these suits for valuable consideration. After the lapse of more than fifteen years, the defendant brought eject- ment against the })laintiffs, and it was decided that the legal title had not passed l)y the deed executed by him. The plain- tiffs thereupon instituted proceedings in this Court to reform the deed execuiod by the defendant, or treating it as contract only for a specific performance thereof: Held, (1st.) That though the plaintiffs had equities as purchasers for value, yet the defendant had an equity to set aside the deed he was deceived into executing ; and that his equity being the elder, STATUTE OF FRAUDS. 335 and having the legal title in his favour, the Court could not interfere to give the plaintiffs relief; and (2nd.) That though the laches and acquiescence of the defendant for so long a pe- riod might be a reason for refusing him relief where he in Court as a plaintiff, still they did not constitute a ground for granting the plaintiffs the relief sought, and under the cir- cumstances, the Court dismissed the bill with costs. Living- stone V. Acre; Wallace v. Acre, 15 Grant, 610. STATUTE. 29 Vic, Cfliap. 28, Sec. 33. See Administration, V. STATUTE OF FRAUDS. See Partners— Specific Performakce. Parol Contract. The plaintiff, who was the licensee of the Crown of certain " timber limits," entered into an arrangement with J. N. & Co. whereby they were to make advances to him to the extent of 16,000, to enable him to get out timber during the then coming season, such timber to be consigned to them, and they were to be allowed a certain commission on sales, and interest on moneys advanced by ihem. And it was agreed that the plain- tiff should transfer to them his interest in such timber limits as a security for t]»o payment of any balance arising on the said transaction ; which was done. Afterwards the plaintiff and J. N. & Co. continued to deal on the like terms, it was agreed between them, verbally, that the transfer already made should stand as a security for advances to be made by them upon subsequent transactions : Held, that the subject of tlie contract was such an interest in lands as came under the 4th section of the Statute of Frauds, and that any agreement res- pecting it must be in writing. Macdonell v. McKay, 15 Grant, 391. 336 STATUTE OE LIMITATIONS. II, i The owner of land gave parol authority to an agent to sell, the agent accordingly entered into a parol contract for the sale, and communicated the fact and the particulars of the contract to his principal by letter : Held a sufficient note or memoran- dum in writing to satisfy the Statute of Frauds. McMillan v. Bentley, 16 Grant, 387. Acknowledgment of Bargain by a Will. E, the agent of a testatrix, introduced into her will a clause declaring that she had sold to one S two properties therein described, and directing the plaintiff (to whom she devised all her real and personal estate beneficially), to convey these pro- perties to S. The testatrix contracted with S for the sale to him of one only of these lots ; but E alleged a verbal bargain by the testatrix to sell the lot to him ; there was no writing as to such bargain, and no part performance. After the death of the testatrix, E induced the plaintiff, who was not of age, to execute a conveyance to S of the two lots : Held, that the alleged bargain with E was not binding on the plaintiff, and a release of the lot to her was directed, with costs to be paid by Ei Archer V. Scott, 17 Grant, 247. STATUTE OF LIMITATIONS. See Devise — Easement— Execution, I. 7 — Partnership —Quieting Titles, I. 2. The Act 25th Victoria, chapter 20, abolishes all exceptions and distinctions in favour of absentees : therefore twenty years adverse user or occupation of land will bar the right of the party having the legal paper title, whether resident within or without the jurisdiction during such period of twenty years. Low V. Morrison, 14 Grant, 19? An objection of the Statute of Limitations cannot be made by an appellant against the Master's report, without having been taken before the Master. Brigfrnm v. Smith, 18 Grant, 224. I STATUTE OF LIMITATIONS. 337 To prove title by length of possession, the plaintiff shewed that a person under whom he claimed, had, at an early date, cleared part of the lot in question ; but there being no evidence that he did so under any claim of right, it was held that such clearing was not constructively a possession of the rest of the lot. McMaster v. Morrison, 14 Grant, 138. The defence of the Statute of Limitations being allowed at the hearing to be put in by supplemental answer : Held, on rehearing, that the plaintiff should have an opportunity of controverting this defence. Mclntyre v. The Canada Co., 18 Grant, 367. The defendant acquired the legal title under a deed in De- cember, 1842, in the portion allotted to him of the land in which the plaintiff and defendant, as also one M, had previously been jointly interested ; and the strip of land in question in this suit was erroneously included in this conveyance ; and this fact was known, but the conveyance was executed notwith- standing. About the same time the plaintiff and defendant executed a document agreeing to leave this strip for their mutual benefit, the plaintiff to have the timber thereon. The defendant had not actual possession of the strip, but there was no separation between it and the other portion of the lot which he did occupy under his conveyance : Held, that this document operated to prevent the defendant from acquiring a title to this strip under the Statute. Mojfat v. JFal/cer, 15 Grant, 155. The use of bracket boards on a mill dam is such an easement as the Statute of Limitations will protect. Campbell v. Young, 18 Grant, 97. A person, who had been in possession of lands for upwards of 20 years, wrote to the heir of the true owner, acknowledging his title as such heir : Held, that such acknowledgment having been made after the title by possession was complete, did not take away the statutory right which possession gave. Mclntyre V. The Canada Co., 18 Grant, 367. An acknowledgment to a party's trustee is sufficient to take a case out of the Statute of Limitations. Ih. Y 338 STAYING PROCEEDINGS. P, being in possession of land of which he was not the owner, made a verbal gift of the land to C, but afterwards ejected him. C then obtained a conveyance from the owner. More than 20 years had elapsed from the time that the Statute of Limitations began to run in favour of P against the true owner : Held, that Cs possession did not interrupt in Cs favour the running of the Statute ; that the owner being barred, 6', his grantee, was barred also. Ih. The owner of land put his father in possession ir 1847, under a parol agreement that the father should clear up and cultivate the land, taking to his benefit the profits thereof. The father remained in undisturbed possession until his death, which occurred in 1870 : Held, that the father Iiad obtained a title by length of possession ; and a bill filed to obtain the delivery up of certain deeds executed between the father and another son was dismissed with costs. Truesdcll v. Cook, 18 Grant, 532. STAYING PROCEEDINGS. See Arbitration. Where former action pending. Where a former action of ejectment had been brought and decided on the merits, and no real or probable cause of suit was sworn to in the suit moved in ; an order was granted to stay proceedings until the costs of the action of ejectment were paid, Ostrander v. Ostrander, 3 Cham. R., 50. Pending rehearing. The Court will not, as a matter of course, stay proceedings pending a rehearing. It is in the discretion of the Court to stay, or refuse to stay, proceedings ; and the Court will impose terms according to the circumstances of eat-h case, gi*anting a stay more readily than formerly, if it be shewn that there is a danger of loss unless proceedings be stayed. Where in an interpleader suit a large sum of n oney was STAYING PROCEEDINGS. 339 ordered to be paid over to a claimant resident in the United States, and the plaintiff who purposed to rehear, and had made his deposit, asked to have proceedings stayed ; the claimant was directed to give security to abide by any order the Court might make upon the rehearing, and to repay the money if so diiected before the money was ordered to be paid to him. IValker v. Niks, 3 Cham. R., 418. Fendinfj appeal. Security for the costs in appeal, as well as those of the Court below, will be required to be given before proceedings ' i Court below will be stayed, pending an appeal. Heward v. Heward, 2 Cham. R., 245. The Church Society of the Diocese of Toronto had become united to, and incorporated with, the Synod of the Diocese by Act of Parliament. A bond for security for costs of appeal, kc, had been filed, and a motion made to allow such bond, which was objected to on the ground that such a bond could not be properly executed without the concurrence of at least one-fourth of the clergy of the Diocese, and unless at least one- fourth of the congregations were represented : Held, that the Synod was bound by what had been done by the proper officers of the former corporation without waiting for the action of the Synod, and that there was an implied authority in the Act, authorizing them to take such a proceeding as that in question, on behalf of, and in the name of, the Synod, and a stay of pro- ceedings pending the appeal was granted. Boidton v. Church Society, 2 Cham. R., 377. A motion to stay proceedings pending an appeal may pro- perly be made, although no petition of appeal has yet been filed. But the party applying for a stay must be in a position to appeal. When, therefore, a party seeking a stay, pending an appeal from an interlocutory order, applied ; when it had be- come too late to give notice and get in his appeal within six months, the application was refused. Brigham v. Smith, 3 Cham. R., 313. ^ ^ ^s^ o *^*>. ** r^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 "fKAlii ill ' "^ 1^ - 6" Photographic Sciences Carporation as WBT MAM STIUT VmSTW,N.Y. 145tO (716) •73-4303 » ^ "1 ■I I I ' 840 STYLE OF PROCEEDINGS. An application to stay proceedings pending an appeal from, an order overruling a demurrer, is to the discretion of the Court. Where allowing plaintiff to proceed would so prejudice the defendant as virtually to defeat the appeal, proceedings will be stayed, but where defendant fails to shew that he would be prejudiced, a stay will be refused. In a case where the stay moved for was refused, the Court ordered that any answer put in should be without prejudice to the appeal from the order oveiTuling the demurrer. McMur- ray v. The Grand Trunk Railway Company of Canada, 3 Cham. R, 125. Although the Court is averse to interfering with sales under decrees or orders of the Court, yet, where a sufficient case is made, it will nevertheless grant indulgence to a purchaser in aid of carrying out a sale previously made, and when a re-sale is about to take place. Where a re-sale had been advertised and was about to take place, the purchaser, who was a devisee and had reason to ex- pect to receive a balance from the estate, in which he was dis- appointed, and had been unable to carry out his purchase sooner, applied for a stay of the re-sale, he was let in to com- plete his purchase on payment of costs, and of the purchase money, into Court with subsequent interest, and of $100 to cover his share of costs of second sale, and of the application. Denison v. Denison, 4 Cham. R., 37. STOP ORDER. The Court has no jurdisdiction to grant a "stop order" at the instance of a judgment creditor of a party entitled to funds in Court. Lee v. Bell, 2 Cham. R., 114. STYLE OF PROCEEDINGS. A bond for security for costs in, should be styled in the Court of Error and Appeal. SUBMITTING TO DECREE. 341 The style of the cause in the Court below, if adopted, should be the style in full, and the parties should be described as they respectively become appellants or respondents, but to carry out the view of the Court, as intimated in Harvey v. Smith (2 E. & A. E., 480), they may be given in the same order as in the style of the original cause. IVeir v. Matheson, 2 Cham. R, 73. After a bill has been dismissed against one defendant, the style of cause as it originally was, should be continued. It is not necessary to omit the name of the defendant against whom the bill has been dismissed, and the retention of the name is not irregular. Sed qticsre. would it be irregular if the name was omitted. Upper Canada Mining Company v. Attorney-General, 2 Cham. R, 185. The proper style of proceedings in a matter of taxation is in the matter of the solicitor only, without the style of any cause. Re Scott, 3 Cham. R, 467. It is sufficient in a notice of hearing to name in full the first plaintiff* and first defendant : the words " and another," or "and others," after the name, are sufficient without naming the other or others. Stevenson v. Hodder, 15 Grant, 542. The notice of setting down a demurrer for argument must contain the full style of cause. Carroll v. McDonald, 15 Grant, 329. Affidavits styled in short form, '' A B and others, plaintiffs," and "CD and others, defendants," were Md to be sufficiently styled and allowed to be read. Dickey v. Heron, 2 Cham. R., 490 ; see also Smnerville v. Ken, 2 Cham. R., 155. SUBMITTING TO DECREE. Where the defendant submitted, by answer, to be redeemed on payment of costs, and made statements which, if true. 342 SUBSEQUENT INCUMBRANCERS. would have entitled him to costs: Held, that the plaintiff was justified in going to a hearing for the purpose of proving facts which entitled him to costs against the defendants. Brand v. Martin, 16 Grant, 566. SUBPCENA. A subpoena should be under the seal of the Court, not that of a Deputy Registrar. Where a witness was served with a subpoena under the seal of a Deputy Registrar, it was held he was not bound to obey it. Waddell v. McGinty, 2 Cham. R., 445. To compel the attendance of a witness, or a party whom it is sought to examine, he must be duly subpoened or served with an appointment eight days previous to an examination. A subpoena should not be dated prior to the time at which the party taking out such subpoena is entitled to examine the party or witness served with subpoena. Where a party plaintiff in a cause had been served with a subpoena dated before he was regularly liable to examinati n — a motion to commit him or dismiss his bill was refused, but without costs. McMurray v. Grand Trunk Railway Company, 3 Cham. R., 130. SUBSEQUENT INCUMBRANCERS. Where, by his report made under a foreclosure decree, the Master appointed a time for all the subsequent incumbrancers, who proved before him, to redeem, the plaintiff, one of whom at the time appointed, paid the amount and took an assign- ment : Held, that the incumbrancers, who could not redeem, were entitled to three months' further time before the co-de- fendant could obtain a final foreclosure against them. Ardagk V. Wilson, 2 Cham. R., 70. TACKING. 343 SUIT FOR TRIFLING AMOUNT. See Jurisdiction. The rule and policy of the Court is to discourage suits for trifling amounts, or brought vexatiously. Where, therefore, a bill was filed in respect of a sum not exceeding $10, including interest, the Court at the hearing, without reference to the merits of the demand, dismissed the bill ; but without costs, as the defendant ought, under the circumstances, either to have demurred, or moved to take the bill off the files. Westbrooke v. Brmett, 17 Grant, 339. SUMMARY JURISDICTION. See Solicitor, I. SUPERSTITIOUS USES. A bequest by a member of the Roman Catholic Church of a sum of money for the purpose of paying for masses for his soul, is not void in this Province. ElmsUy v. Madden, 18 Grant, 386. SUPPLEMENTAL ANSWER. See Answer Pleading, I.— Parties, I. 11. SUPPRESSION OF FACTS. See Quieting Titles. SWEARING ANSWER. 1 \ til See Practice. TACKING. Judgment against devisee. A mortgagor's devisee held not entitled to redeem the mort- gage withoxit also paying a judgment held by the owner of the 344 TAXATION. mortgage against the mortgagor. This is not such tacking as the Registry Act forbids. McLaren v. Fraser, 17 Grant, 533 TAXATION. See Costs — Master's Office — Solicitor. 1. Costs of, uhere party does not appear. 2. Adding an item. 3. Petition for, after a month. 4. No taxation a length of time after payment. 5. Infants. 6. Ex parte order. 7. lAahility incident to Solicitorship. 8. Eetaxation. 9. Bargain for higher fees. 10. Between Solicitor and Client. 1. Costs of taxation, where party does not appear. Held, that the G'^ irt had no discretion as to costs of taxation where party does „ jt appear. Re Kerr, 2 Cham. R., 47. 2. Adding an item. Leave to add an item granted, on payment of costs. Re Crawford v. Crombie, 2 Cham. R , 13. 3. Petition for, after a month. Where a solicitor's bill has been delivered more than a month, and no action brought, he can not obtain an order to tax on prcedpe, but must apply on petition. Re Boultbee, 2 Cham. R,, 58 ; see also Stinson v. Martin, 2 Cham. R., 86. An application to tax costs should be on petition, and not by motion. Bell v. Wright, 2 Cham. R., 96. 4. No taxation a length of time after payment, except on shewing special circumstances. In the absence of gross overcharge or pressure, the Court will not open up and tax a solicitor's bill which has been ren- TAXATION. 345 as dered several years, and treated as paid, the solicitor having abandoned any excess over certain sums received by him. Re Thompson, 2 Cham. R., ' 00. A petitioner seeking to tax a bill of costs rendered over a year, must allege and establish items of overcharge, and shew special circumstances why taxation should be permitted. In re Malcolm Cameron, 2 Cham. R., 311. 5. Infants. Where executors have appealed, infants in the same interest need not appear, and will not be allowed coats if they do. In such case, the guardian was allowed only an attending fee with- out brief. McLaren v. Coombs, 2 Cham. R., 124. 6. Ex parte order irregular. Where an order for taxation had been obtained ex parte at the instance of one of two clients, who had jointly retained the solicitors, whose bill it was soiight to tax, such order was set aside as iiTegularly obtained. Re Beecher, Barker and Street, 2 Cham. R., 215. An order to tax a solicitor's bill is not to be granted &c parte on the application of the solicitor where there appear to be any facts in dispute between him and the client. It is the duty of the solicitor applying to make known such facts to the Court, and if he does not the order will be set aside. Motions for taxation under such circumstances should be on notice, and the reference should as a rule be to the Master at Toronto, although in special cases such rule may be departed from. Re Fitch, 2 Cham R., 288. 7. Liability incident to Solicitor ship. On a motion to tax costs, a solicitor was liable for moneys which had come to his hands, and that he can be called on to account under a summary order, although the transaction ma> be one which, were the party not a solicitor, would be an ordi- nary case of principal and agent. Re Walker, 2 Cham. R., 324. 1i 'M. r. 846 TAXATION. 8. Eetaxation. A retaxation of a solicitor's bill will not be ordered unless improper charges are specified and established. Eastman v. Eastman, 2 Cham. R., 325. A party is not entitled to the delivery of any bill he is not entitled to have taxed ; and where a bill has been taxed, it will not again be referred, even with other or subsequent costs, except on proof of special circumstances. 9. Bargain /or hig/ter/ees than tariff provides. No bargain between a solicitor and client whereoy the latter undertakes to pay more than the recognized fees for the work to be done, can be enforced. Where a solicitor's Toronto agent made a bargain with the client for two dollars an hour, such bargain was held not to be binding, although looked upon to be reasonable, the sufficiency or insufficiency of the amount not bei.ig held to affect the question where the item is fixed by tariff. Re Geddes d- mismiy 2 Cham. R, 447. 10. Practice on, Solicitor and Client. If charges on a solicitor's bill of costs are unusual or excep- tional, he has to make out a very clear case to have them allowed. If the usual charges are made, but the client complains of negligence or unskilfulness not apparent on the face of the bill, then the onm rests on him to establish his case. In re .^. J?.^ n Solicitor, 7 U. C. L. J. 21, 4 Cham. R. Where an order was applied for for the taxation of costs in- curred in suits in Court of Common Pleas, the County Court, and Division Court, according to the terms of an alleged agree- ment as to rate of remuneration, an order was granted with a direction to the Master to ascertain whether any valid agree- ment existed between the parties. Re Wetenhnll, 4 Cham. R, 98. TAX SALES AND TAX TITLES. 347 The practice defined as to the manner in which the Master will tax Solicitor's costs for services in the sale of lands and collection and transmission of the purchase money. Re Richard- son, 3 Cham. R., 144. TAXES. See Quieting Titles— Sale— Tax Sales— Pleading. The devisee of a life estate in all a testator's property is bound to keep down the annual taxes on the land, and they form a first charge on the devisee's interest. Gray v. Hatch, 18 Grant, 72. By the Assessment Act of 1866, owners had four years to impeach a tax deed : by an Act passed in 1869, all actions for that purpose were stayed until after the following session of the Legislature ; and by another Act of the same session all previous Assessment Acts were repealed, amended, and consoli- dated, with a reservation of rights had or acquired under the repealed Acts ; by one of the clauses of the amended Act the limit for bringing actions was two years : Hdd, that an owner, who had less than two years of his four remaining when the Acts of 1869 were passed, had like others two years there- after to bring his suit. Connor v. McPherson, 18 Grant, 607. TAX SALES AND TAX TITLES. See Quieting Titles, 14 — Titles, 5. 1. Parties, &c. 2. Mortgage— Redemption. 3. Restraining Ejectment. 4. Fravd — Relief against forfeiture. 5. Advertisement. 6. Where void for uncertainty. 7. For more than due. 8. Miscellaneous decisions. 1. Parties. \: i ::ii After a sale of land for taxes for 1859 and following years, :348 TAX SALES AND TAX TITLES. a subsequent sale for the taxes of 1858 was held invalid, and the purchaser under the first sale was held entitled to retain the land free from past taxes. A municipal officer charged with some irregularities in the performance of his duty, but not guilty of any fraud or inten- tional wrong, is an improper party to a bill to set aside a tax- sale on the ground of such irregularities. Mills V. McKay, 15 Grant, 192. 2. Mortgage — Redemption. The five years for which lands are to be in arrear for taxes, before they are liable to be sold, must be before the delivery of the Treasurer's warrant to the Sheriff. Land having been sold for taxes, a party interested therein as mortgagee applied to the vendee of the Sheriff to be allowed to purchase, on the ground of his having an interest in the land, and which he was permitted to do, his only interest in the land being as mortgagee. Held, that the purchaser could not afterwards set up this title in opposition to the mortgagor's claim to redeem. Although a mortgagee may, as well as a stranger, purchase lands of which he is mortgagee, still, if he purchases as mort- gagee, and makes his interest in the land a ground for being allowed to purchase, he cannot afterwards set up the title thus obtained against the mortgagor's right to redeem. Kelly v. Macklem, 14 Grant, 29. 3. Restraining ejectment. Where an action of ejectment had been brought by the pur- chaser of lands alleged to have been illegally sold for taxes, the Court declined to interfere by injunction to restrain the action. The proper course in such a case, in the event of the sale being found invalid, is for the owner to tender a deed to the pur- chaser for execution, and on his refusal to execute such a deed, to apply to this Court for relief. Bamberger v. McKay, 15 Grant, 328. TAX SALES AND TAX TITLES. 349> 4. Fravd — Relief against forfeitwe. In case of a tax sale, if the owner, instead of paying the redemption money to the County Treasurer for the Sheriflf's vendee, pays it to the latter personally, and he accepts it, the payment is in equity as effectual to save the property as pay- ment to the Treasurer would have been. So, if the Sheriff's vendee verbally agrees to accept payment personally at a dis- tance from the county town, in lieu of its being made to the Treasurer for him, and the owner acts on this agreement, the other cannot afterwards to the owner's prejudice require the money to be paid for him to the Treasurer, or refuse to receive it himself, when it is too late to pay the Treasurer, and insist on holding the land as forfeited. Where such an agreement was proved by a credible witness, but there was contradictory evidence at to whether what took place amounted to an agreement, the Court, holding that the presumption in a case of doubt must be in favour of fair dealing and not of forfeiture, gave the owner relief. Cameron V. Barnhart, 14 Grant, 661. 5. Advertisement. Where a tax sale was advertised in the Canada Gazette for thirteen successive weeks before sale, but such thirteen weeks did not amount to three calendar months from the date of the first publication, it was held that the irregularity did not invali- date the sale. Connw v. Douglas (In Appeal), 15 Grant, 456. 6. Where void for uncertainty. Where there were two lots on a particular street with the same number, one on the south side, and one on the north side, and neither the assessment nor the Sheriff's deed on a tax sale thereof distinguished the one from the other : the sale was held void for the uncertainty. Lount v. fFalkington, 15 Grant, 332. 7. For more timn due. » A tax sale for more than was due is not rendered valid by 27 Vic, c. 29, s. 4. 350 i'AX SALES AND TAX TITLES. Where two half lots were assessed separately, a sale of the whole lot for the total amount was held to be invalid, notwith- standing that Statute. Yokham v. Hall, 15 Grant, 335. 8. Miscellaneous decisions. Where the Court is called upon to set aside a tax sale whieh is equally void at law and in equity, the Court does so, if at all, only on such ttrmn as are equitable. Paul v. Fergusm, 14 Grant, 230. On a bill impeaching a tax sale on the ground that no por- tion of the taxes had been due for five years before the issuing of the treasurer's warrant, it appeared that the first yenr'"? taxes had been imposed by a by-law passed in July, 1852 ; that the collector's roll was not delivered until after August, 1852 ; and that the treasurer's warrant was dated 10th July, 1857 : Held, that the sale was invalid. Connor v, McPherson, 18 Grant, 607. The warrant for the sale of land for taxes described the lands as "all deeded:" Held, sufficient. Cook v. Jones, 17 Grant, 488. The statutory provision requiring certain rates to be kept separate on the collector's roll is directory only ; and where the direction had not been observed, a sale for non-payment of the taxes was held valid notwithstanding. lb. In a suit to impeach a sale of land for taxes, it appeared that about 20 acres of the lot were cleared and a barn was erected thereon, into which hay, made on these 20 acres by a person occupying the adjoining lot, was stored in winter, no one residing on the 20 acres ; the owner being resident out of the county, and never having given notice to the assessor of the township to have his name inserted on the roll of the township : Held, that this was not such an occupancy of the 20 acres as exempted the lot from being assessed as the land of a non- resident. Bank of Toronto v. Fanning, 17 Grant, 514. [See this case on Appeal.] Held, per Richards, C. J., Wilson, J., Mowat, V.-C, Oalt, J., TECHNICAL GROUNDS. 351 14 and Strong, V.-C, that the Statute 27 Victoria, chapter 19, section 4, cures all errors as regards the purchaser at a tax sale, if any taxes in respect of the land sold had been in arrear for five years j this rule applies where an occupied lot has been assessed as unoccupied. The Bank of Toronto v. Fanning (In Appeal), 18 Granf, 391. In a suit to impeach a sale of land for taxes, it appeared that about 20 or 30 acren of the lot were cleared and fenced, and a barn was erected thereon, into which hay made on these twenty acres were stoi v^d in winter, by the person occupying the adjoining lot under the authority of the proprietor ; no one resided on the 20 acres ; thf owner was resident out of the country, and had not given notice to the assessor of the town- ship to have his name inserted on the roll of the township : Semble, that the lot should have beeu assessed as occupied. lb. [Draper, C. J., Hagarty, C. J., and Gmjnne, J,, dissenting, who were of opinion tliat the lot was properly assessed as non-resident.] Ih. The Act 32 Vic, ch. 35, respecting lands sold for arrears of taxes, applies only to cases in which the validity of a tax sale is called in question. If a plaintiff claims land by two titles, one only of which involves any question as to the validity of a tax sale, he may proceed as to the other branch of his case. Cameron v. Barn- hart, 2 Cham. R., 346. TECHNICAL GROUNDS. Technical objection. Where a party seeks to set aside a proceeding on technical ought these cigars supposing them to be the cable-stamped cigars : Held, that the manufacturer of the cable cigars was entitled to an injunction to restrein the other parties from using the trade-mark which they had so adopted. Davis v. Meid, 17 Grant, 69. TRANSMITTING ANSWER. "Where an answer had been irregularly transmitted, it was ordered to be re-sworn within a given time, with costs, against the defendant. Gordon v. Johnson, 2 Cham. R., 205. TREASURER. County Treasurer, duty of. A County Treasurer should keep the county money deposited to a separate account, and should not allow it to be unneces- sarily mixed up with his own private moneys. Peers v. Oxford, 17 Grant, 472. il i TRUSTS ACT. See Acts—Judicial Opinion. Under the Statute 29 Vic, sec. 58, to amend the law of property and trusts, the Court made an order approving of a proposed sale to a partner of an intestate, of an intestate's in- terest in the partnership assets. Ex parte Sessions, 2 Cham. R., 360. TRUST AND LOAN COMPANY. See Acts. 358 TRUSTS, TRUSTEE, ETC. TRUST ESTATE. Quieting Titles Act — Notice — Evidence, &c. — Trust estate. Whether trust estates escheat, &c., considered. Re Adams, 4 Cham. R., 29. TRUSTS, TRUSTEE, AND CESTUI QUE TRUST. See Infants' Mortgage — Principal and Agent— Prin- cipal AND Surety. 1. Trustee and cestui qw. Irust. 2. Trustee for sale. 3. Payment for improvements. 4. Laches. 5. Transactions between mother-in-law and sons-in-law. 6. Trust proved by parol. See Parol Evidence. 7. Parol trust. 8. Trmt fund misapplied by one trustee. 9. Advances to trustees. 10. Trustee for creditors. (a) Compounding debt. 11. Imbility for acts of agents. 12. Compensation. 13. Priorities. 14. Interest on investm,ent, tic. 15. Assignment of decree. 1. Trustee and cestui que trust. Money was recovered by the administratrix of a person killed by a railway accident, and the shares allotted to her children were deposited by her with her brother, who was fully cognizant where the money came from, and to whom it be- longed : Held, that he was liable to account to the children as their trustee. Secord v. Costello, 17 Grant, 328. ^ The administratrix was afterwards sued by her brother for a debt alleged to have been due by her husband, and judgment TRUSTS, TRUSTEE, ETC. 359 was recovered by him in the action, and subsequently a refer ence was made to arbitration in respect of other moneys come to the hands of the administratrix for the benefit of her chil- dren, and by her deposited with her brother, and this judgment and the amount due thereon were, at the arbitration, mixed up with questions as to these trust moneys, and the award was in respect of all. The parties all acted as if these trust moneys and the debts of the estate were to be considered and dealt with together ; but the infants were not represented before the arbitrators : Held, that the infants were not bound by the award made under such circumstances, lb. Where a trustee is authorized to invest in either of two spe- cified modes, and by mistake invests in neither, the measure of his liability is the loss arising from his not having invested in the less beneficial of the authorized modes. Paterson v. LaUey, 18 Grant, 13. Two years before the passing of the Act relaxing the usury laws (22 Vic, c. 85), a trustee who was authorized to invest on mortgage or in Government securities, made an investment in Upper Canada Bank stock, under the impression that such an investment was within his authority. The stock ultimately turned out worthless ; and the trustee submitted to account for the principal with compound interest at six per cent.: ffeldf that this was the extent of his liability, though eight per cent, might have been obtained on mortgages. 2b. The insolvency of a trustee, or his leaving the country in debt to reside in a foreign country, is a sufficient ground to re- move him from the trust. Gray v. Hatch, 18 Grant, 72. By virtue of a will, A had a life interest in certain lands, with remainder to the plaintiff in fee. The land was afterwards sold at Sheriff's sale under circumstances which made the sale void in equity, and the purchaser a trustee for the devisees. A (the life-tenant) for valuable consideration conveyed his life-interest to the purchaser : Held, that the plaintiff could not claim the benefit of that transaction. Gilpin v. West, 18 Grant, 228. " *»•. I ft 860 TRUSTS, TRUSTEE, ETC. h ' liF It is the duty of a trustee for sale to use all diligence to ob tain the best price ; and where a trustee sold property at private sale, without previous advertisement, at a price lower than other persons were willing to give, and did not first communicate with these persons, though informed of offers of the higher price made by them to one of the cestuis que trust ; the trustee was held responsible for the loss. Graham v. Yeomans, 18 Grant, 238. In such a case, the absence of any fraudulent motive in the trustee is no defence ; nor is evidence of witnesses that the pro- perty was worth no more than the trustee obtained for it. lb. . The trustee deposed that he had disbelieved the statement of the cestuis que trust : Held, no excuse for not testing the truth of the statement by reference to the parties. lb. Where a judgment debtor had suffered a judgment to be taken, and execution to be issued against his goods, in a suit which he had himself caused to be brought by a party as trustee for his wife, under the assumption that she was beneficially entitled to claim certain money come to his hands from the estate of her father, which in fact, however, she was not, but a third person, her mother was equitably entitled ; on an applica- tion at the instance of a judgment creditor that a co-defendant with the judgment debtor should be directed to file a bill to impeach the judgment so obtained by the wife's trustee, the Court refused to interfere, holding that there was sufficient doubt of the impeachability of the judgment to induce the Court to refrain from directing a bill to be filed, buc left the party enti- tled to the equity to take proceedings on her own responsi bility. The application was, under the circumstances, refused with costs. When a security intended to be given for the benefit of one supposed to be equitably entitled, although in preference to another creditor, and which would itself be unimpeachable, has been given by mistake to a wrong person, and that person the wife of the grantor, the transaction, although the grantee had been apparently influenced bj motives of personal advantage. TRUSTS, TRUSTEE, ETC. 361 ob ate er Eite ■ice was held not necessarily to be impeachable. Grainger v, Latham, 2 Oham. R., 419. Where a cause is against the represtnta'ives of a deceased trustee, who had been defendant, the Court will exercise a greater degree of indulgence in the reception of new evidence than if the suit was against the original defendant. Small v. Eccles, 2 Cham. R., 97. 2. Trustee for sale. The title of a trustee for sale being liable to be impeached by creditors of a former owner, the former owner being also enti- tled to the residue under the trust, the trustee bought at a dis count a judgment recovered against such former owner. The trustee was at the same time a debtor to the trust in a sum greatly exceeding the amount paid for the judgment : Held, that he could not retain the profit on the purchase, and that his ces- tuis que trmt were entitled to it. After his purchase the trustee assignad the judgment : Held, that his assignee took subject to the same equities as affected himself. Hewson v. Smith, 17 Grant, 407. 3, Payment for improvements. Where trustees with power of sale had in good faith, but erroneously, made a conveyance of a portion of the trust estate to one of the cesiuis que trust, for the collateral advantage to the whole property to be derived from certain buildings and improvements to be made on the part conveyed thereon, thus committing a technical breach of trust ; upon discovering which the grantee joined with the trustees in a conveyance of the whole trust estate for value, upon an agreement entered into between the parties that he should be paid such sum in respect of his improvements as the Court might consider him entitled to, and thereupon filed a bill for that purpose. The Court, under the circumstances, directed the grantee to be allowed such sum as it should be made to appear the improvements had enhanced the value of the whole property, or the price of the buildings and other improvements made thereon, whichever 362 TRUSTS, TRUSTEE, ETC. should be the lesser in amount, and referred it to the Master to ascertain the amount ; although the rule is that, in such cases, payment for improvements will not be allowed at the instance of the party making them. Pegley v. Woods, 14 Grant, 47. 4. Relief against Trustee, notwithstanding laches. The plaintiff, a squatter on Crown lands, made an assign- ment thereof to the defendant to enable him to obtain the pa- tent for the plaintiff. There was no writing shewing the trust, and the defendant procured the patent to be issued in his own name, and thereupon the defendant induced the plaintiff to release his interest in the estate for less than half its value. There was great inequality between the parties in respect of their business capacity and otherwise ; and the defendant failed to shew that he had given the plaintiff all the informa* tion he was entitled to, or that the plaintiff had made the as- signment without pressure and influence. The Court held, that the plaintiff was entitled to redeem, on payment of the amount of the defendant's advances, although seven years had elapsed before the plaintiff had filed his bill im- peaching the transaction -, the excuse assigned for the delay being his poverty ; it appearing that the parties could be re- stored to their original positions without loss to the defend- ants. Brady v. Keenan, 14 Grant, 214. 6. Transaction between Mother-in-law and Sons-in-law. A widow of uncommon vigour of mind and strength of charac- ter, accustomed for many yeara to manage all her own affairs, and who owned property to the value of at least £25,000, incurred liabilities to the extent of .£8,000 ; and the time of her indebtedness being one of great commercial depression, she could not raise money to pay, and was in danger of losing all she had by a forced sale ; she had two sons-in-law who were persons of wealth and credit ; her solicitor, without any communication with them, advised her to offer her property to them on terms which would make it worth their while to de- vote theii' time and energy to save a surplus for themselves ; TRUSTS, TRUSTEE, ETC. 363 laster such It the U she, after some days' deliberation, adopted this advice, and pro- posed to them that they should take all her property, except two farms 'vith which she wished to provide for the only two members of l.-^r family, besides the wives of the two sons-in' law, who had ;.ot already had large sums from her ; and the consideration which she proposed to the two sons-in-law was, that they should pay her liabilities and pay to herself an annuity : they with some reluctance accepted her proposal : the same was afterwards duly carried out, and she lived for seven years without making any objection to the transaction, though she was aware that they had made a considerable profit out of it. After her death, some of her heirs having filed a bill impeaching the transaction on the grounds of fraud and trust, the bill was dismissed with costs. Wallis v. Andrews, 16 Grant, 624. 6. Trmt proved by parol. A lot of land was purchased by the defendant in his own name, and he gave a mortgage for the purchase money. The bill alleged that D, through whom the plaintiffs claimed, was the real purchaser, and that the defendant was his agent and trustee in the matter. Part of the purchase had been paid with Z)'s money, and he had possession of the property for many years, and until his death : the trust which was denied was proved by parol ; and the Court decreed the plaintiffs entitled to the propei'ty, subject to a charge for any sums paid by the defendant on account of the purchase money, o/ for taxes. Dennij v. Lithgow, 16 Grant, 619. The plaintiff claimed as belonging to him a mortgage which was in the defendant's name, and had been given for the pur- chase money of the mortgaged land : the plaintiff had been in the Insolvent Court at one time after the transaction, and had sworn that he had parted with his interest in the property to the defendant in satisfaction of a debt : Held, that though there was some (not satisfactory) evidence in favour of the plaintiff's present claim, it was not sufficient against this sworn statement of his own. Ross v. Ross, 16 Grant, 647. i 364 TRUSTS, TRUSTEE, ETC. 7. Farol trust. A man conveyed land absolutely on a parol trust, and the trustee made a large advance on account of the grantor and his family ; they afterwards settled accounts, and it was agreed between the two that the grantee should retain a portion of the land conveyed at a specified price in satisfaction of the balance due to him ; mutual releases were executed, and the relation of the parties terminated. After the death of the grantee the grantor's wife and children filed a bill alleging that the land so retained was held in tinist for them ; but the Coui't being satis- fied from the whole evidence that this was not so, dismissed the bill. Berveyv. Boomer, 17 Grant, 558. Where a party claimed on the ground of a parol trust to be entitled to a conveyance of land from the heirs of the legal owner, and they required him to establish the trust by a suit, which he did : Held, that he was not entitled under the cir- cumstances to the costs of the suit. English v. English, 15 Grant, 330. 8. Trust Fund misapplied by one trustee. Trust funds which stood in the names of two trustees (A and B) were paid out on the cheques of the two ; got into the hands of one (A) who was the acting trustee, and were misapplied by him without the knowledge of the other trustee (B). The primary cestui que trust was a married woman ; the trust deed contained a clause in restraint of anticipation ; there was a trust over with a limited power of appointment. B in- sisted that he was not liable, as he had become trustee at the request of the lady and her husband, and it had been repre- sented to him that his name only was wanted ; that his co-trustee (A) was to do the business part of the trust, and that he B was to have no trouble about it : Held, that these repre- sentations did not exempt B from the duty of seeing that the trust money was properly applied. Mickleburgh v. Parker, 17 Grant, 503. 9. At'vances to Tiiistees TRUSTS, TRUSTEE, ETC. 365 A. party making advances to trustees for the benefit of a trust estate, and which advances are applied to the purposes ».f the trust, is entitled to stand pro ianto in the place of the trus- tees as against the trust estate. Mills v. Cottle, 17 Grant, 336. 10. Trustee for Creditors. In a suit by a creditor of a deceased debtor who had made an assignment for the benefit of his creditors, certain other ere ditors who had not signed or accepted the deed of trust sought to come in under the decree. The trust deed had been made in 1857. The asftignor had died in 1863 ; the assignment was to be executed by the creditors within two months of its date. The accountant declined to receive proof of the claims, and an application in Chamber for leave to come in and sign the deed and participate in benefit was refused. Schreiber v. Fraser, 2 Cham. R., 271 Where a debtor assigned his estate to trustees on ti^ist to sell for the benefit of creditors ; and the trustees were guilty of delay in selling and of other misconduct, it was held, that the Court had jurisdiction at the suit of a creditor to execute the trusts of the deed. The Quebec Bank v. Snure, 16 Grant, 681. A trust was created for the benefit of creditors pro rata, in consideration of their discharging the debtor ; all the creditors except the plaintiffs accepted from two creditors, who had be- come responsible for the fidelity of the trustee, twenty-five per cent, of their demands, in full ; the estate yielded more : Held, that the plaintiffs had no right to the difference. (a) Compounding debts. Trustees accepted $250 in discharge of a debt of $300, and gave no evidence to explain the reason of this : Held, that, in the absence of such evidence, the Master was right in charging the trustees with the loss. Baldwin v. Thomas, 15 Grant, 119. 11. Liability for acts of agents, d;c. A trustee is bound to exercise a prudent supervision over the ftcts of an agent, or a co-trustee appointed or acting as agent or 3^6 TRUSTS, TRUSTEE, ETC. '■: manager, for his co-trustee ; and where he neglects this duty he makes himself liable for losses occurring through the acts of such agent or manager. But a trustee in this position was not held liable for moneys received by the agent or co-trustee acting as manager, which were not entered on the books (to which the trustee charged had access), and which he could not have discovered by any vigilance he might have used. A trustee is liable for i he acts of an agent in whose appoint- ment he has concurred, and whose defalcations would have been discovered by an ordinary inspection of the books kept by him. City Bank v. Maulson, 3 Cham. R., 334. 12. Compensatiov. Where compensation was given to trustees by the trust deed, not in a lump sum,, and they had failed in some points of their duty, the INIaster did not consider that he could deprive them of compensation, but held that he could determine on the value of the work done, and make a corresponding allowance. City Bank v. Maulson, 3 Cham. R., 334. A commission should not in general be allowed to an executor or a trustee in respect of sums which he did not receive, but is charged with on the gn und of wilful ^default. Bald v. Thomp- soii, 17 Grant, 154. The rule of the Court is to jiUow compensation to trustees of real estate under a will, as well as to exeeutors. — Ih. The old rule as to the compensation of trustees has only been abrogated by the Surrogate Act so far as relates to trusts under wills. Wilson v. Proudfoot, 15 Grant, 103. Where a suit for the administration of a,ii estate is pending in this Court, it is improper for the Surrogate Judge to inter- fere, by ordering the allowance of a commission to trustees or executors. Cameron v. BeViune, 16 Grant, 486. 13. Priorities. ULTRA VIRES. 367 Where a decree by mistake gave a trustee priority, in respect of a debt due to him by the estate, over claims of certain par- ties who were entitled to priority over the trustees ; Held, on an application to correct the error, that an assignment for value, executed by the trustee after the decree, was no answer to the application, and that the assignee took subject to all the equi- ties to which the trustee himself was subject. Wood v. Brett, 14 Grant, 72. 1 4. Interest on invesiment. Mortgages, reserving G per cent, interest, were taken by trus- tees before the abolition of the Usury Laws, and were not called in for several years after the change of the law, but as it did not appear they were aware of an opportunity of investing at a higher rate, the Court refused to charge them with more than was reserved by the mortgages. Cameron v. Bethune, 15 Grant, 486. Interest held to be allowable, on a preferred debt consisting of drafts and promissory notes from the date until paid and pending suit. Cltji Bank v. Maulson, 3 Cham. R., 334. 15. Assignment of decree. Trustees made payments to one class of creditors, over whom another class of creditors were entitled to priority, without first paying, or retaining sufficient to pay, the prior class ; and a suit for the administration of the trust estate having been instituted, the creditors who had received such payments were ordered to repay what they had erroneously received, and the unpaid cre- ditors were held entitled to a lien on the trust funds in Court in priority to the claims of the trustees, and all subsequent creditors, for debts and costs. Wood lu Brett, 14 Grant, 72. ULTRA VIRES. An arrangement with the plaintiff such as was customary in carrying out objects like those defined in a company's incorpo- ration Act, and as was conducive to the attainment of those 368 UNSOUND MIND. objects, having been duly carried out : Held, that the arrange- ment could not afterwards be declared to have been beyond the powers of the company or its directors, so as to entitle the com- pany to keep for their own use, without compensation to the plaintiff, the whole benefit which the arrangement had afforded the company. McDonald v. The Upper Canada Mining Co., 14 Grant, 179. UNDUE INFLUENCE. See Deed, II. Gwirdian and ward. An infant entitled to real estate was brought up principally in the family of her uncle, from the age of eleven months until her marriage after attaining majority. Previous to her attaining twenty-one the uncle had obtained from her a promise to con- vey to him one of two lots of land left by her father, the uncle asserting that he had advanced the money to complete the pur- chase of both lots. After her marriage the niece, feeling herself bound by the promise so given to her uncle, conveyed the lot selected by him, which was much more valuable than the other. The money (if any) paid was much less than the value of the lot conveyed. The conveyance was set aside, aa having been obtained by undue influence, although six years had elapsed between the execution of the deed and the institution of the suit impeaching the transaction. McGonigal v. Storey, 14 Grant, 94. A person given to drinking made a deed to his wife, under- standing what he was doing, but without professional advice. A bill by his heir impeaching the deed was dismissed. Corrigan V. Corrigan, 15 Grant, 341. UNSOUND MIND. Where a bill was filed in the name of a person of unsound mind, not so found by inquisition, by a next friend, the Court, on the submission of the defendant, : ade a decree declaring USURY. 369 14 that the plaintiflf was entitled to certain lands of which the de- fendant had the legal estate, subject to the defendant's lien for taxes, &c., which he had paid thereon ; and the defendant not asking a sale, and it not appealing that a sale or other direc- tion following the declaration was necessary in the interest of the plaintiff, the Court made no order founded on such declara- tion ; and it not appearing that the suib was necessary, or that the defendant was guilty of any blameable conduct, he was held entitled to costs, and the next friend was ordered to pay them, without prejudice to any question as between him and the plaintiff's estate. Young v. Heron, 14 Grant, 580. USURY. See Building Society. Since the Statute of 16 Vic, cap. 80, and before the abol- ition of the usury laws, a mortgage at 10 per cent, cannot be enforced for more than 6 per cent., though as to payments made without appropriation, the mortgagee can appropriate the mo- ney to the satisfaction of the usurious interest before coming into court. In part payment of the usurious mortgage another mortgage of a third party was assigned, which had not fallen due : Held, that the amount of this mortgage could not be applied by anticipation to the payment of usurious interest not due. Fuller v. Parnall, 8 U. C. L. J. 86, 4 Cham. R., 86. An assignment to the Trust and Loan Company of a valid existin'» mortgage bearing more than 8 per cent, interest is not necessarily void. The Trust and Loan Company of Canada v. Bmlton, 18 Grant, 234. The Court will not at the hearing of a cause allow an amend- ment or supplementary answer to let in evidence necessary for a defence of usury. lb. Where a bill was filed against an executor and trustee for the administration of an estate, and praying a receiver, on the ground of the executor becoming embarrassed, and having lately sold a valuable farm belonging to the estate to his own son at A A 370 VENDOR AND PUKCHASER. au undervalue, without advertising the same, or communicat- ing with the cesiuis que Irud under the will, and of his having taken a mortgage for tlie payment of the purchase money, in his own name individually and not as trustee ; and the circum- stances were such as to justify alarm on the part of the cesiuis que trust ; the executor was charged with so much of the costs of the suit up to the hearing as was occasioned by the suit being for a receiver. lb. » VENDOR AND PUllCHASEK. See Specific Pekfokmance, Moutgaue, I. 8. I. Rights and LuBiLrriEs of Pukchasek. 1. Right of purchase — Order for possession. 2. Compensation — Lapse of time. '■'>. Agency — liepai/nieut uf profits. 4. Acceptance of title. 5, (a) Right to abstract. {b) Orders 390, 391, 392, 393. <). Claim to have good title shewn. 7. (a) Pur cliase for value icithout notice — Professional adviser — Notice — Registered title. {b) Cloud on title. 8. Cavenant against encumbrances — Right of Retainer. 9. Damages. 10. Vendor neglecting to disencumber. 11. Paying purchase money into Court. 11. UiGUTS OF VeNUOK, AND TUEUEIN OP VeNDOR's LIEN. 1. Insolvency Sale by Slier ijf'. 2. IFhen notes taken. 3. IVhere bond given. 4. Absence of agreement far lien. 5. Personal order for deficiency. (). Vendor entitled to decree for sale. * 7. Purchase by Railway drnpany. 8. Vendor mortgaging after contract. VENDOR AND PURCHASER. 371 III. Miscellaneous Cases affecting the rights op Ven- dor AND Purchaser and incident thereto. 1. Inadequacy of consideration — Misrepresentation. 2. ffriting not naming price. 3. Lunacy. 4. Title deed - Crown bonds— Devise of trust estate, a;c. 5. Estate tail — Statute of limitations— Infancy — Fraud — Con- ditional notice. 6. JFho should prepare conveyance. 7. Delay — Occupation rent. 8. Interest on purchase money. I. Rights and Liabilities of Purchaser. 1. Right of purchase — Order for possession. 2. Compensation — Lapse of time. 3. Agency — Repayment of profits. 4. Acceptance of title. 5. Right to abstract. 6. Claim to have good title shewn. 7. (a) Purchase for value -without notice — Professional adviser — Notice — Registered title, (h) Cloud on title. 8. Covenant against encumbrances — Right of retainer. 9. Damages. 10. Vendor neglecting to disencumber. 11. Paying purchase money into Court. 1. (1) Right of purchase- Order for possession. The djfeudaut, who was entitled to purchase certain land, had been guilty of default in payiug the purchase money ; had failed to erect a new saw mill on the land, as stipulated for ; had allowed the saw mills already thereon to fall into disrepaii- ; and had been cutting aud removing the timber,-so that the saw mills were in such a condition that they would become utterly lost to tho plaintiffs if the defendant was allowed to retain posses- sion ; and that the saw mills and timber constituted the almost entire value of the mortgage security : Held, that the plaintitts U' 372 VENDOR AND PURCHASER. were entitled to an order for possession in case the defendant did not pay the overdue instalments in a month, without pre- judice to the plaintiffs' right to enforce tlie agreement for 8al(\ Philips V. Preston, 14 Grant, 67. I. (2) Compensation — Lapse of time. Where a purchaser died after paying three-fourths of the pur- chase money, leaving an infant lieir, who Wiis entitled to a spe- cilic performance of the contract, and the vendor, at the instance of the administratrix, conveyed the property, which had greatly increased in value, to a third person, and it af tei wards passed into the hands of persons without notice : Held, that the heir could sue the vendor in equity for compensation. There was a lapse of 14 years after the vendor's conveyance before the bill for compensation was filed, the heir having been a minor all this time : HHcl, that the vendor having caused this delay by his own arrangement with tlie infant's relations which deprived the infant of their protection, this lapse of time was no bar to the suit. With a view to fixing the amount of compensation inquiry was directed as to the condition of the estate left by the deceased purchaser, and whether the plaintiff or the estate received the benefit of any part of the purchase money on the subsequent sale of the property. Forsyth v. Johnson, 14 Grant, 639. I. (3) Agency — Repayment of profits. A person agreed with the owners of oil lands for the purchase of certain lots at stipulated prices, and was to have a certain time to accept. The purpose was to form a company to buy at an advance. To facilitate this the real prices were to be con- cealed ; one of the vendors was to write a letter purporting to offer the whole at an advanced price which he named ; the interest of the other, whose judgment in such matters parties would be likely to rely on, was not to appear, and he was to write a letter recommending the transaction. The project was successful ; the property was bought, conveyed, and paid for. The share- holders before completing the transaction had notice that some- thing was wrong, but they carried out the purchase notwith- standing, and did not object to the transaction until after oil i. VENDOR AND PUllCHASER. 373 se the defendant ith, without pre- jroement for 8ah^ ourths of the pur- entitled to a spe- •r, at the instance, rliich had greatly ,f tei wards passed Id, that the heir )n. idor's conveyance heir having been living caused this s relations which lapse of time was ensation inquiry 't by the deceased itate received the 1 the subsequent rant, 639. for the purchase to have a certain mpany to buy at were to be con- ter purporting to med ; the interest parties would be 3 to write a letter was successful ; for. The share- notice that some- urchase notwith- ion until after oil lands had greatly fallen in the market. The Court of Appeal (reversing the order of the Court below in this respect — see Grant, 16, 147) Held, that it was too late to rescind the pur chase ; but, that the company was entitled to a decree for pay- ment of the agent's profit, first against the agent himself, and in default of his paying, tlien against the other parties. [Spragge, i\, and Mow AT, V.-C; dissenting.] Lindsay Petroleum Oil Com- pany V. Nurd, 17 Grant, 115. !. (4) Acceptance of title. An abstract of title and the title deeds having been sent to a purchaser in November, 1869, at his own request, for the pur- poses of examination and advice, he retained the same for a considerable time, intimated no objection to the title, and in correspondence with the vendor's solicitors implied that he was content with the title, but in June, 1870, he claimed the right of investigating it afresh : Held, that by the lapse of time and the letters which he had written, he had impliedly accepted the title. Hue v. Geddes, 1 8 Grant, 217. Notwithstanding that a decree declares that the defendant " has accepted the title of the plaintiff," the defendant has a right to object to a conveyance by the plaintiff alone if it ap- pears that the legal estate is partly out of him. line v. Geddes^ 3 Cham. R., 404. 1. (5) [a] Right to abstract. Before an al)stract was asked for, the purchaser had sold small portions of the land, and he and his vende !S had cut down some of the wood thereon ; but the vendor, notwithstanding, pro- mised afterwards to give an abstract as demanded, and delivered an abstract accordingly : Held, that the plaintiff was entiMed to have this abstract vcrilied. Gordon c. Harnden, 18 Grant, 231. I. (5) [b] Orders 390, 391, 392, 393. On receiving an abstract of title the purchaser has seven days within which to »)bject to the completeness of the abstract, and after any question of its completene.ss is disposed of, and the abstract made perfect in the sense of being complete, seven days 374 VENDOR AND PURCHASER. to object to the title; if, however, he takes his objection to the title in the first instance, the Master will not go into the ques- tion of the perfectness of tiie abstract, hut will confine the pur- chaser to the objections he has made to the title. No objections other than those specifically taken will be enter- tained by the Master. The endorsed receipts for consideration money should appear in a perfect abstract, at all events as to deeds executed before the late Registry Act. McMunus v. Little, 3 Cham. R., 263. I. (6) Claim to good title. A agreed to sell to B "all his right, title, and interest" in certain specified property "owned by" A, and to "give a good and sufficient deed of the said land, free from all incum- brances :" Jleld, that the vendor was bound to shew a good title. Gordon v. Harnden, 18 Grant, 231. A vendor does not shew a good title by producing and fur- nishing to the purchaser an abstract shewing on the face of it a good title ; he does so only when he verifies such abstract. — Grainger v. Latham, 14 Grant, 209. I. (7) [a] Purchaser for value without notice — Prof essional adviser — Notice — Registered title. A testator, the registered owner of the property in question, gave an annuity to his wife, and charged it on his real estate. His heirs, being also his devisees, did not register the will, and made a partition of the pi'operty as heirs. One of the heirs who was an attorney, sold part of his share to F, the latter employ- ing no other attorney in the transaction ; P's interest afterwards passed to the defendant M. The widow filed her bill to enforce her annuity against this property, and M set up that P was a purchaser for value without notice : Held, that P^s vendor was not his attorney, so that his knowledge of the charge could not be imputed to P ; and the Court not being satisfied with the evidence of express notice, dismissed the bill with costs. liykeri V. Miller, 14 Grant, 25. VENDOR AND PURCHASER. 376 to the ques- le pur- enter- It is a clear and well settled rule of this Court that equity will never deprive a purchaser for value without notice of any advantage he has arising from either a legal or equitable title, or even from mere ])osses8ion, although as between or amongst mere equitable claimants it will enforce the rights of the prior against the subsequent claimants in point of time. Mitchell v. Gorrie, 6 Grant, 625. A held a bond for the conveyance of property and assigned it absolutely to B, but for the purf)ose of security only, 1> sold the property to C, and C sold to others. C before his purchase had no notice that the bond to B was a security merely. A having become bankrupt his assignees applied to redeem and was held entitled in the absence of any evidence that C was a purchaser for value ; but the Court directed the cause to stand over, with liberty to C to give such evidence upon payment of costs, unless the plaintiff should desire also to give evidence, in which case the cause was to stand over without costs. Cherry v. Morton, 8 Grant, 402. I. (7) [b] Clmd on title. As against a purchaser for value a voluntary deed, though registered, is void ; and as this objection will avail the pur- chaser in any proceeding adopted either by or against him, this Court will not interfere to remove the registration of the void deed as a cloud on the title. Buchanan v. Campbell, 14 Grant, 163. I. (8) Covenant against incumbrancers — Right of retainer. On the sale of land, which was subject to a prior mortgage which the vendor had given, and which was not then due, the vendor executed a covenant to the purchaser B, covenanting that he had not incumbered the property, and the purchaser B executed a mortgage for his unpaid purchase money. The in- tention was, that the vendor should pay the prior mortgage, but he failed to do so ; after it became due he sold and assigned B's mortgage to the plaintiff, who had notice of all the facts ; the plaintiff afterwards obtained an assignment of the prior :i76 VENDOR AND PURCHASER. ■i! ■/i mortgage, and B paid off the same : Held, that B was entitled to apply on his mortgage the money so paid by him to the plaintiff. [Stronq, V.-C, dissenting.] Henderson v. Brown, 18 Grant, 79. I. (9) Damages. On a sale of land the jjurchaser gave his note for the balance of purchase money, and received a conveyance containing the usual covenants. There was a mortgage on the property at the time for a sum less than the amount of the note, and the pur- chaser claimed to set off against tlie note damages he had sus- tained by being unable to re-sell tlie land in consequence of the mortgage : Held, not allowable. Stevenson v. Hodder, 15 Grant, 570. Where a person falsely representing himself to be the agent for the owner of certain land, entered into a contract for the sale thereof, and received a deposit on account of the purchase money, but the vendee could not get a specific performance of the contract : Held, that his remedy against the agent for the return of the deposit was at law, and that a bill for that pur- pose would not lie. Gi'aham v. Powell, 15 Grant, 327. I. (10) Vendor neglecting to disencumber. W entered into a contract for the purchase of property, the price being payable by instalments ; and, there being a mort gage on the property which was not due, the vendor was to give the vendee a bond of indemnity in respect of the mort- gage. A decree was afterwards made at the suit of the vendor for specific performance, on his undertaking, recited in the decree, to procure a release of the mortgage ; the overdue instalments were ordered to be paid into the Bank, subject to the further order of the Court. Part only was so paid, and, in consequence of the default as to the residue, the mortgage was not paid when due, and was foreclosed in a suit to which both the vendor and vendee were defendants. Tlie purchaser then applied by petition to stay all proceedings in the specific per- formance suit, which (the plaintiff not objecting) was granted, VENDOR AND PURCHASER. 377 entitled m to the ^rown, 18 balance ning the ty at the the pur- ad SU8- ce of the Ider, 15 le agent for the I)urchase nance of t for the hat pur- rty, the a niort was to e mort- vendor in the jverdue )ject to and, in ige was h both r then ic per- •anted, and the money in Court was ordered to be paid to the vendor, in consideration of the loss he had sustained through the pur- chaser's default. Rohsmv. Wride, 15 Grant, 111. I. (11) Paying purchase mmey into Court. Where there was a controversy as to whether a purchaser bought subject to or free from a mortgage which was on the property, and there was no suggestion of danger in respect of the purchase money, the Court in a very special case refused to order payment of the amount into Court pending proceedings, though a conveyance had been executed and the purchaser had gone into possession. MuUiolland v. Hamilton, 15 Grant, 53, II. Rights of Vendor, and therein of Vendor's Lien. 1. Insolvency — Sale by Sheriff. 2. IFhere notes taken. 3. Where bond given. 4. Absence of agreement for lien. 5. Personal order for deficiency. 6. Vendor entitled to decree for sale. 7. Purchase by Railway Company. 8. Vendor mortgaging after contract. II. (1) Insolvency — Sale by Sheriff. Land subject to a vendor's lien for unpaid purchase money, was sold under execution at Sheriff's sale to a purchaser with- out notice. The execution debtor subsequently re-purchased the land from the Sheriff's vendee in the name of a third party, who conveyed to a l»rother of the debtor, in trust for the latter* who having become insolvent, made an assignment under the Insolvency Act of 1864 : Held, that the vendor's lien attached on the lands in the hand of the assignee ; but, Semble, that the Sheriff's vendee would have held free from the lien ; though, if the execution creditor had himself become the purchaser at Sheriff's sale he could have so held the land, free from such lien, though ignorant of the latter : Quaere. VanfVagner v. Findlay, 14 Grant, 53. S7S VENDOR AND PURCHASER. X\ 1 1 II. (2) Tfliere votes taken. On tbe sale of land notes wore taken by the vendor for a portion of the purchase money : Ife/tl, that the vendor retained his lien for the amonnt unpaid, although, in fact, the vendor did not intend to retain any lien ; and one witness in the cause swore that "the notes were taken in payjuent of the land," it appearing there was no agreement or arrangement that there should be no lien. Rachd McDonald r. ArchihaJd McDonald, 16 Grant, 678. II. (3) Where bond given. * The principle that a vendor, by taking from a purchaser an endorsed note as security for unpaid purchase money does not thereby lose his vendor's lien, is equally applicable where the security given is a bond, in which a third person 'oins as surety. Shennan v. Parsill, 18 Grant, 8. II. (4) Absence of agreement for lien. One of two partners, on retiring from the partnership, con- veyed to the remaining partner all his interest in the partner- ship lands, mill, and stock-in-trade, who gave the retiring partner liis promissory note for £r)00, payable on the 1st Sep- tember, 18G7, agreeing at the same time that, in case of his effecting a sale of the premises before that time, to pay the note though not due. There was no evidence of any express agreement for lien on the property assigned : Held, that the circumstances were such as to negative the retention of any vendor's lien by the retiring partner. Mathers v. Sliort, 14 Grant, 254. II. (5) Personal order for deficiency. In case of a decree for unpaid consideration money, the sale of the property should be provided for, and in case the same does not realize suflBcient to pay th« money with six years' arrears of interest, there should be a personal decree for pay- ment of the balance by the purchaser. Skelly v. Shelly, 18 Grant, 495. VENDOR AND PURCHASER. 379 IT. (6) Vendor entilled to decree for sale. A vendor who has conveyed without receiving the purchase- money, is entitled against the vendee to a decree for a sale of tlie i)ro[)(irty and payment of any deficinncy. Sanderson v. liurdeli, 1(5 Giant, 119. II. (7) Purchase hy railway compony. » It is clearly settled that the rights and franchises of a railway company do not pievail over a vendor's lien ; and where land was sold to a railway company for the purposes of the road, and a mortgage taken to secure the unpad purchase-money : J/eld, that the vendor's lien was not thereby lost. Gait v. Erie and Niagara Railway Company, 15 Grant, 637. II. (8) Vendor mortgacjing after contract. A party, after making a contract for the sale of land, mort- gaged it, and then tiled a bill for specific performance. The mortgage not being due, the Court, on the hearing, directed an inquiry whether the plaintiff could make a good title free from incumbrance, and reserved further directions and costs, in case the Master should find he could not. McDougal v. Miller, 15 Grant, 505. III. Miscellaneous Cases Affecting the Rights of Vendors and Purchasers, and incident thereto. 1. Inadequacy of consideration — Misrepresentation. 2. Writing, not naming price. 3. Lunacy. 4. Title Deeds — Crown Bonds — Devise of trust estate, &c. 5. Estates tail — iStatute of Lim,itations— Infancy — Fraud — Con- structive notice. 6. Wlio should prepare conveyance. 7. Delay — Occupation rent. 8. Interest on purchase money. 9. Sale to a municipal cmporation. III. (1) Inadequacy of consideration — Misrepresentation. A and B had each a lot of wild land, and they negotiated fl. 380 VENDOR AND PURCHASER. for an exchange. A claimed that his lot was worth $900 ; Ji that his lot was worth $800 ; they ultimately agreed to ex- change, B to pay $100 in money. Neither had any knowledge of the other's lot ; but the truth was that A's lot was wort) !|400 only : Held, that the doctrine caveat emptor applied, and that A was entitled to enforce the contract. McRae v. Froom, 17 Grant, 357. III. (2) IFrit'mg, not naming price. Where a writing provided for the conveyance of land on payment of the balance of the principal, nr j naming any amount, under a penalty of $100, and th^ro had been no part performance : Held, that the writing was insufficient for not naming the price, and that it could not be made binding on the vendor, by the subsequimt consent of the vendee's heirs to tn>at the penalty as the price. Kelly v. Sweeten, 17 Grant, 372. III. (3) Lunacy. A vendor was insane, but not on all subjects ; and apart from his delusions a stranger might not perceive his insanity. In the course of the negotiation for a sale of land, he said to the purchaser that he was bewitched, which, it was shown, was one of his delusions : Held, that this statement was not suffi- cient indication of insanity to affect the vendee with notice of the vendor's condition. McDonald v. McDomda [In Appeal], 16 Grant, 37. III. (4) Title deeds — Crown bands — Devise of trust estate, &c. A vendor is bound, at his own expense, to furnish a purchaser with copies of all instruments relating to the title which are not ol record. A purchaser is entitled to copies of title deeds registered by memorials, but not of deeds registered under the Registry Act of 1867. Where a testator held certain lands as a trustee, to secure a debt due him, and devised the residue of his property to his executors, except such parts thereof as might at his decease be VENDOR AND PURCHASER. 381 vested in him upon any tnxsts or by way of mortgage, and then, by a subsequent devise, all the residue of his estate, real and , personal, to J. M, (whom he also appointed one of his executors), and his heirs absolutely : Held, that under the second devise the legal estate in the property held in trust passed to J. M. : Held, also, that .7. M. and the executors could by their deed pass all the legal and equitable interest in the trust estate sold. The testator, under the above circumstances, had joined in certain Crown bonds, which remained undischarged : Held, that they formed a charge upon the lands, which the purchaser was entitled to have removed. Re Charles, 4 Cham. R, 19. III. (5) Estate tail — Statute of Limitations — Infancy — Fravd — Constructive notice. Before the passing of the Act respecting the assurance of estates tail, a tenant in tail executed a deed purporting to con- vey the property in fee, and gave up possession to the pur chaser : Held, that the Statute of Limitations did not begin to run until the death of the grantor. A tenant in tail, who was supposed to have the fee simple, sold the property a few weeks before the passing of the Act res- pecting Assurances of Estates Tail ; the purchaser accepted the conveyance and paid the purchase money without seeing the will or having the title investigated ; the eldest son of the vendor was not quite twenty-one at the time ; he was aware of his interest, but was anxious that the sale should be effected, urged the purchaser to buy, and was privy to the completion of the purchase, without giving any notice of his title, or of the defect in the father's right to convey ; the purchaser went into posses- sion, and improved the premises, and had no notice of the defect in his title until after the death of the vendor : Held, that he was entitled to hold the property in equity against the issue in tail. In such a case, constructive notice of the defect in the ven- dor's title is no bar to the purchaser's right to relief. Re Shaver, 3 Cham. R., 379. 382 VENDOR AND PURCHASER. Til. (6) Who should prepare conveyance. Who should prepare conveyance. Watts v. Parker, 2 Cham. K., 33. III. (7) Delay — Occupation rent. Where there had been considerable delay in completing the title to property, and the puroluiser paid the purchase money into Court without prejudice, it was held improper in charging the vendors with the rents during the interval, to direct the Master in fixing the amounts to have regard to what the pur- chaser might have rented the premises for, or to charge the vendors with an occupation rent, without evidence of such occupation, or with detcn-ioration and damage to the property, except such as occurred through the act or default of the ven- dors. JJmlley v. Berczy, 2 Cham. K., 3G4. ill. (8) Interest on purcJMse money. ()n a purchase of laud the vendee gave his promissory note payable in a year with interest for part of the purchase money. The vendor died before the note bec.ime due, and administra- tion was not taken out for eleven yeurs. In a suit commenced a year afterwards by the administrator, it was held that, as the cause of action did not arise until there was some person to sue, interest was recoverable for the wlK)le jieriod from the date of the note. Stevenson v. Ilodder, 15 Grant, 570. 111. (9) Sale to a municipal corporation. The name of the seller or his agent must appear in t contract of purchase by a municipal corporation. Where a municipal corporation contracted for the purchase of some land for a market site, and afterwards a by-hw was passed, with the sanction of the ratepayers, which renioed the purchase, but did not name the seller, and there was no other evidence under the corporate seal, and jwssession hid not been taken, it was held that the contract could not be enforced by the vendor against the corporation. Houck v. Taicn oj fVhitby, 14 Grant, 671. VOLUNTARY CONVEYANCES' ACT. :5Ha VENUE. See CuANQiNO Vknuk. VESTED INTEREST. S«e Will, VII. VESTING ORDER. See Purchaser. VOID BEQUEST. See Will, IV. 2 — Mortmain. VOID SALE. See Father and Son. By sheriff. In a suit setting aside a ]jurcliase made by a mortgagee at a slierift"8 sale, and giving the parties interested in tlie equity of redemption liberty to redeem, the Court, while granting that relief, refused actively to enforce the sale by requiring the mortgagee to give credit for the purchase money in reduction of bus debt. McLaren v. Fraser, 17 Grant, 533. VOLUNTARY CONVEYANCES' ACT (1868). The Voluntary Conveyances' Act (1868) gives eftect as against subsequent purchasers, to prior voluntary conveyances executed in good faith, and to them only ; and a voluntary con- veyance to a wife for the purpose of protecting property from creditors was held not to be good against a subsequent mort- gage to a creditor. Richardson u Armitage, 18 Grant, 512. 384 WASTE. hlli: WAREHOUSEMAN'S RECEIPTS. A warehouseman sold 3,500 bushels of wheat, part of a larger quantity which he had in store, and gave tlie purchaser a warehouseman's receipt under the statute, acknowledging that he had received from him that quantity of wheat, to be deliv- ered pursuant to his order to be endorsed on the receipt. The 3,500 bushels were never sepai-ated from the other wheat of the seller : Held, by the Court of Appeal [Spragge, C, Morrison, and GwYNNE, J.J., dissenting], that the purchaser had an in- surable interest. Box v. The Provincial Insurance Company, 18 Grant, 280. WAIVER. See Security for Costs. WARRANT. Proceedings on. See Security for Costs. WIDOW. Devise to. See Devise, III. — Mortgage. WASTE. See Injunction, II. 5. Constructive Waste. A person who has an interest in remainder, subject to an estate for life, cannot maintain a bill in respect of merely per- missive waste, by whomsoever committed. Where the bill had not been proved, and a bill was filed for (amongst other things) an account against persons said to be in possession of the assets, the answer took the objection that a personal representa- WILL. 386 tive waB a necessary party ; the suit failing, so far as it related to other objects, the Court at the hearing dismissed the bill with costs. Zimmerman v. O'Eeilly, 14 Grant, 646. WILL. I. After Acquired Estate. II. Widow, Her Dower, Bight op Election, &c. L fFidow's share — Account. 2. Dower — Election — Statute of Limitations. 3. Provision in lieu of dower. III. Maintenance. 1 . Maintenance charged on annual profits — Legacies charged on coipus. 2. Double Maintenance. 3. Where not forfeited. 4. Infants, Petition under 29 Fie, e. 28, s. 31. IV. Mortmain, Statute of, &c. 1. Extrinsic Evidence. 2. Void bequests. Parties. V. Residue and Residuary Estate. 1. Undisposed of residue. 2. Devise to executrix beneficiaUy. 3. Residuary estate. VI. Trusts, Trustee, and Cestui que Trust. 1. Marrying with approval of trustees. 2. Cestui que trust entitled to personal possession. VII. Vested Interests. 1. Distribution, period of. 2. Where vested and not contingent. , VIII. Powers. B B ! t 386 WILL. 1. Power of sale. 2. Power of tenant for life to dispose of corpus. • 3. Implied power to sell. 4. fFhether naked power or trust. IX. Estates Tail. X. Miscellaneous. 1. " Dying without issue" — Personal trust. 2. Legacy held a charge on land. 3. Legacy to executors — Annuity payable out oj corpus. 4. Time of payment of legacies — Interest — Charitable gift out of special fund. 5. Gifts to heirs and assigns of a living person. 6. Mixed fund. 7. Interest on legacy to minor children. 8. ffill revoked by deed. 9. Imperfect enumeration. 10. Slieriffs sale. 11. Bequest upon conditions. 12. Compo.1 mentis. Morff^age after. Preratoi'y devise. Proportionate bequest. 13 14 15 I. After Acquired Estate. A general devise of all the testator's real and personal pro- perty does not carry after-acquired real estate [Mowat, V.-C, dissenting]. fVhateley v. JVhateley, 14 Grant, 430. II. Widow— Her Dower — Right of Election. 1. Widow's share — Account. 2. Dower — Election — Statute of Limitations. 3. Provision in lieu of dower. 1. Widow's share — Account. A testator directed his son to work his farm of 100 acres, worth £50 or £100 a-year, and pay one-third of the produce to his widow. The widow and son and an infirm daughter lived together on the place until the death of the son, all receiving WILL. 387 their support from the farm, the widow for part of the time doing work equivalent to the support she received, but making no demand for her one-third of the produce, and there being no agreement between them on the subject. A bill by the widow against her son's representatives for an account of her share of the produce, was dismissed with costs. Gilmore v. Gilmore, 14 Grant, 57. II. (2) Dower — Election—Statute of Limitatims. Where the question as to whether the widow had elected to take an annuity in lieu of dower, arose in connection with a claim of the defendant for past maintenance and education of the plaintiff, and was a mere matter of inference, depending to a certain extent on the amount of moneys the widow had re- ceived — this point was reserved until after the Master had made his report. The executor of an estate, which was small, permitted the widow of the testator to receive the moneys of the estate and €xpend them in the support of herself and children, and on the eldest son coming of age in 1852 the executor pointed out to him the clause in the will directing a distribution of the per sonal estate, but the only estate the executor then had was some household furniture. In 1867, the widow having set up a claim for dower, rejecting an annuity provided for her by the will, the heir-at-law filed a bill against the executor for an ac count : Held, that the Statute of Limitations did not bar the relief : but, inasmuch as the executor had had reason to believe he would never be called on for an account, the Court thought the Master, in proceeding under the decree, should act liberally upon the rule of Court giving the Master a discretion as to the mode of vouching accounts in his office. Walmsley v. Bull, 15 Grant, 210. A testator devised his farm to a grandson, and directed the same to be rented during his minority, and that the testator's widow should be comfortably supported from the proceeds of the farm during life. The testator also directed his goods and chattels to be sold, and the proceeds placed at interest to sup- w i 388 WILL. port his widow and defray all necessary expenses. The widow after his death asserted a life interest in the property, and rented it : Held, that the widow had elected to take under the will, and that she was not entitled to any benefit in the personalty other than the interest to accrue on the money produced by sale thereof j the corpus of the personalty being distributed amongst the next of kin. Montgomery v. Douglass, 14 Grant, 268. Where a testator by his will made provision for his widow, but did not express the same to be in lieu of dower, evidence for the purpose of shewing that the testator intended such provision to be in lieu of dower was held inadmissible. Where a testator by his will, after making a provision for his widow, directing certain of his real estate to be sold at the expiration of a lease thereof then existing, and the proceeds to be divided among his three daughters, and that in the mean- time the rent was to be divided among them : Held, that this latter expression was not inconsistent with the widow's claim to dower. An intending purchaser of devised lands had some doubt whether a provision made by a testator for his widow was in lieu of dower, and asked the widow whether she had or claimed dower : Held, that if even her answer in the negative, it af- forded no ground for the purchaser applying to this Court to restrain an action for dower brought by the widow on her being advised that, under the terms of the will, she was not put to her election. Fairweaiher v. Archibald, 15 Grant, 255. II. (3) Provision in lieu of dower. Qucere, whether a provision for the maintenance of the tes- tAtor's widow, charged on the real estate, is by implication in lieu of dower. A testator devised his farm to his eldest son in tail, npon condition, amongst other things, that he should support the testator's widow during her life ; that she should^ be mistress and have the control of the Jwelling-house on the farm, and WILL. 389 should have the proceeds of one half the cows and sheep kept on the premises ; that the farm should be a home for the tes- tator's son John, so long as it might be necessary for him to remain, and for another son, Donald, should any misfortune happen to him : Held, that the widow was not entitled to dower in addition to the provision made for her by the will McLennan v. Grant, 15 Grant, 65. A testator, by his will, gave to his widow an annuity of $4,000 in lieu of dower. His will contained certain devises, and gave other legacies and annuities which the testator charged on the whole of his estate not before devised, and he empowered his executors to sell any of his property which they should think necessary ; the widow elected to take the annuity : Held, that having so elected, she was not entitled to dower out of any of the testator's lands, whether devised or not : Held, also, that the legacies and annuities were payable primarily out of the personal estate. Davidson v. Boomer (In Appeal,) 18 Grant, 475. A will contained the following bequest: "To Richard 0. Knight I give my carpet, blankets, and whatever else I may have at his house." Held, that mortgages and a bank deposit receipt, which were in the house, did not pass. Smith v. Knight, 18 Grant, 492. (See same point— CoWms v, Collins, 24 L.T.N.S., 780.) A testator bequeathed a sum of money to his wife in lieu of all dower, (l() to one person and $.'iO() to iUiother person, his estati! in faet l)eing greatly in ex ciss of those two amounts : Jlelil, (allirniing the decrcuf of Va\- KOUOIINKT, ('.) that as to such excess there was an intestacy ; tho rule as to eases ay the debt to another person (7;), and that the Side did not deprive the legatees of their charge ; but /i having assented to the sale, the same was not disturbed so far as it alfected his interest. The Sheriir, at a subsequent sale under another small execu- tion against the executors, put up the whole farm, and the same was knocked down to the purchaser of the half at the former WILL. 4(»5 ir U) sale, at one-sixteoTitli of tlie value of tlio farm. Before convey- ance OIK! of tins legatees filed his l)iU to restrain the carrying out of this sale, and it was held he was entitled to the relief prayed. Joni's V. Jones, 15 (irant, 40. X. (11) Beipu'tit upon eoinUtioiiS. A. bequest was made to the sou of the testatrix, payable ou his attaining tweuty-one, provided he continued a steaily boy, and remained in some respectable family until that time, witii a bequest over if he did not do so. Without any reason being assigned then^for, th(' legatee enlisted and served as a private soldit.'r in the army oH the United States during the time hostilities were carried ou against the then Confederate States : llchi, that the son by such conduct had not performed the conditions upcm which alone he was to be paid the legacy given by his mother's will. J'ar r. Lifcrti/, IG Grant, 408. X. (12) Coiiqyos mentis. A will was executed by the testator on his death-bed : he was compos mmfisixt the time, l)ut was so extremely weak in body and mind that his (Hrections were ;.iven at intervals, and there was consideiable diiliculty in undei standing them. No fraud, howevci', was pretended, and the Court vas satislied that the will was in aecrdance with tht.' testators wishes, and contained all that was understood of them, though ]>robably not all the testator desired to ex^ircss, ant properly extn-cised, as she was bound to divide the property among all the children, although she might, in her discretion, give personalty to one and realty to another. F'ndiuj v. Fellows, 14 (rrant, 00. X. (15) Pivporthnatc bequest. The surplus was to be divided amongst the legatees in pro- portion to the other sums l)equeatheil to each. One legacy was of .*2{l(), and an annuity ; and the legatee died within a year after the testator : Ilild, that her j)ersonal representative was entitled to a jirojiortionate pait of the annuity ; and that her share of the suri)lus was to be liased on the ^200, jilus this sum. Jl'codslde V. Logan, 15 Grant, 145. WITNESS. See Conveyance, II. 3. A witness or a party is i liliged to atteii.. and give evi- dence or submit to cross-exam Miation. except he be duly noti- fied or subpaMiacd, even if he happens to be present when the proceedings are going on. Where, therefore, a party to a suit who made an affidavit was present in the Mast«r's oflice, and the solicitor for the opposite party proposed to cross-examine him on his alii' vit, and he refused to answer, a motion ex parte to conqjel him to attend and be examined was refused. Holms v. Carson, 2 Cham. 15., 343. On an application made by the plaintiffs in an adminis- WRIT OF ARUEST. 407 tration suit for nn onlor dir-cting the pevHonul representative to institute ])rocee(Ungs to in»i)each the validity of a jmlgnient anil exi'cution, which had bei3n recovered by a third party n"ainst a debtor to tlio estate, on tlie grounds of the same beiu',' frauihih'nt and collusive, the debtor was subpoiuaed as a ■witness in support of the motion, and on his examination touching the Linid jiilvs of a judgment in question, he thus stated his ol)jection : " I object to answer, on the gro\uid that in this suit I cannot be examined in respect of matters arising in anothei s evidence. The Court will not refuse to admit evidence recently discovered, even after a cause has been set down for hearing on a petition for review. Small v. Eccles, 2 Cham. R., 97. 115.f Executor, Duties of, &c. Add, Ulwrc refused his costs. Where an executor ob- tained the usual order for the administration of his testator's estate, and upon the hearing on further directions, no reason was shown for invoking the aid of the Court, and the guardian of the infants did not object in any way to the cour-ie taken by the exe- ADDENDA, ETC. 411 Paoc ciitor, the Court refused both parties their costs. Springer v. Clarke, 15 Grant, 6G4. 132. Garnishee. Add, See Attuchment— Judgment creditor. 139. Income. Supply the heading, and read Income, meaning of the term, a charge on all the property and income of a company was held not to give a charge on debts, except so far as they represented income ; and the term "income" was held to mean net earnings after providing for current expenses. McCaryar v. McKin- non, 15 Grant, 3G1, 145. Injunction. Add reference to " Specific performance," " Specific chattels." And add under same head, at end of Cam in restraint of wrongful acts, at page 153, the following case :— Ti.e plaintiff filed his bill to restrc\in certain of the defendants from closing windows which looked across a lane, of which plaintiff claimed to bo owner, and on Which the defendants were erecting a building. It appeared in evidence that the plaintiff had no title to the lane, but that the former owner of it had given hiui to understand that it would never be built upon. At the hearing, the plaintiff was al- lowed to amend his bill, by striking out the part claiming title to the lane ; and a perpetual injunc- tion was granted, restraining the defendants from closing the lane— the delay in filing the bill having been satisfactorily accounted for— with costs, less those occasioned by plaintift's claiming title to the lane. liiggar v. Allan, 15 Grant, 358. 147. At foot of page, add to A mold v. A rnolili, " reversed on appeal. 16 Grant, 203. See "Equitable Plea." P' 412 Paor. 163. Interest. ADDENDA, ETC. Wliere a mortgage stii)ulate(l that up to a certain day the interest charged shoidd be eiglii per cent., and if the principal were not then paid, twelve per cent, should Uiereafter be charged : lldd, that the stipu- lation for payment of twelve ptn- cent, was not by way of penalty, but an agreement to pay that rate fiom the day named. IVaddeM v. McColl, 1 4 Grant, 211, 165. Interpleaukh. End of subject add : Where a person in good faith, but from wrong information, re})levied property wliich did not belong to him, and aftei- a verdict against him, a new claimant insisted that the jjfoperty was his, and threatened an action : Jleld, that the case was not one for an interpleader in this Court. Ful- ler V. Patersoii, 16 Grant, 91. 179. Married Women's Act. Add, See Executor, I. (1). 186. Mortgage, d'c. Under the division Miftcelhinemis cases, certain sub- headings are omitted, for which see the Division Vll., page 202. 215. Notice. Add, Kefereuce to mortgage, I. 16. 2 IS. Orders. Add reference to General Orders. 221. Parol Evidence. In reference for " Special," read " Specific." 222. Parol Trust. The words in italics " To esfahUsh a trust," relate to prior heading, Parol evidence. ADDENDA, ETC. 413 Paor. 223. Parties. To a bill, add, To a bill eitlier to establish or impeach the legality of certain cJaritable bequests, the At- torney-General may be made a party. Davidson v. Boomer, 15 Grant, 1. To a bill for equitable dower, thg tenant in actual pos- session of the premises may be a proper, though not necessary party, Mcintosh i\ I Food, 15 Grant, 92. A municipal officer charged with some irregularities in the performance of his duties, but not guilty of any fraiul or intentional wrong, is an improper party to a bill to set aside a tax side on the ground of such irregularities. Mi /Is r. McKatj, 15 Grant, 192. And refer also to Hogers v. J nils, 2 Cham. R., 1,3. To a bill alleging that patentees obtained their patent by false representations to the Government), and shewed a case in which the patentees would not lie entitled to conqiensation if the patent were set aside and the laud given to another : it was held that the Attorney-General was not a necessary party. Rees V. Attorney-General, IG Grant, 407. Persons who acquired an interest in the subject of the suit before the suit was commenced, cannot be made parties by an order of revivor. McKenzie v. McDonncl, 15 Grant, 442. 234. Plkauixg. Add, reference to Demurrer, &c. — Answer, 7 — Infor- mation — Parties. To Division I., add : If an injunction may be granted to a defendant before the hearing (as to which qucvre), the answer should pray therefor specifically, Bran- don v. Elliott, 14 Grant, 119. To Division II,, add : A bill which shews ground for P\aB. 414 ADDENDA, ETC. rejiealing a patent is not demurrable for not shew- ing tliat the plaintiff was entitled to have a patent issued to him. liees v. AUonwj-General, IG Grant, 4G7. Add, also : Where a bill was not maintainable in re- spect of its principal object, and its statements were confused and verbose, the Court of Appeal declined to consider a minor relief to which the plaintiff claimed to be entitled, and allowed a demurrer to the bill, leaving the plaintiff to file a new bill for the huter relief, if he should be so advised. Mukh- nwrc V. Davis, 1-i Grant, 34G. End of subject generally, add : Pleadings should be in liniguage and statement as brief and concise as pos- sible, and neither matters of argument nor evidence shouM be introduced into tliem. In future, when pleadings are tiled containing useless or improper statf^ments, or adniissions so restricted as to render proof necessr.ry, the costs of such pleailing will not be allowed to t!ie party filing it ; but, on the con- trary, he will be ordered to bear the costs occasioned thereby. Kenned!/ v. Lawlor, 14 Grant, 224. 244. Practice. Add to subject : Where proceedings are taken against an absent delendant by advertisu'inent, a decree can- not be obtained o;i priccipe. McMlchml y. Tkomixs, 14 Grant, 249. 2G1. Production of Documents. A mortgagee is not bjund to produce his mortgage deed for the inspection of the mortgagor, when there is no question of title in dispute. Bdl v. Chamberlen, 3 Cham. R, 429. Under an order to produce t iken out by one defendant, other defeiidantj have no right to compel production or inspection. A motion for u further affidavit under ADDENDA, ETC. 415 Paoh. such circumstances was refused with coals. Seymour V. Longworth, 2 Cham. R., 112. 264. Purchase, tfec. 3. Adi : A person purchased under a power of sale in a mortgage, but the sale was irregular, and was set aside ; Held, that as a condition of relief against him, he should be allowed for all the improvements he had made under the belief that he was absolute owner, so far as these improvements enhanced the value of the property, but no further ; and that he was not restrict(>d to such improvements as a mort- gagee in possession would have been entitled to make, knowing that he was a mortgagee. Carroll v. liobertson, 15 Grant, 173. fj^ithout notice,