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Les diagrammes suivants illustrent la m6thode. 1 2 3 1 2 3 4 5 6 / 9^1 ROBIISON & HARRISON'S DIGEST. li Cc ^•iJllCo rOr'iCijfC- (:<^5€. /AW di^^ebi -} DIGEST OF REPORTS OF ALL CASES DETERMINED IN THK QUEEN'S BENCH AND PRACTICE COURTS FOR Ul'l'EK CANADA, FROM 1823 TO 1851 INCLUSIVE nciNG .•>^ FROM THK COMMENCEMBNT OP TAYLOR S REPORTS TO THE END OF VOL. VII. IJPl'KR CANADA REPORTS. [camkuon's Digests included.] WITH AN APPENDIX, CONTAINING THE DlfiESTS OF CA.SES REPORTED IN VOI,. VIII. UPPER CANADA REPORT.S. /£| k Bv ROBERT ALEXANDER HARRISON, Student at Law ; UNDEH THE BUPERVIBION OP .lAMFS LirKIN ROBINSON, Barrister at Law. REI'ORT£ll TO TBE VODRT OF QCSEM'S UENCn. TORONTO : II r; N F! V n n w s e \. ^. , p o b i, i s h e r . ^ 1852, Eiili.reil iirrcn-dtng tu Jet of (lie Provincial Ijigidaturc, in the yeai of our lord orw thousand eia;ht hundred and fifly-tu-n, by James LuKiN RoitiNSON, in the OJfiep o/llic liemirur oftlic Provimr of Canada. 14 TO IHK IIONORABI.K JOHN BKVEKLF.Y ROIHNSON, V.MIF.V JUSTICE OF T?IE gTTF.FN's URNCII ; AND TMIC iroNORABLf: JAMES HUCHANAN MACAULAV, I'HIFF JIJSTirE OF THE rOMMON PI KAs; TFMS WORK IS, HY rKRMTSSION, MOST R E S P E C T F V I. I V INSCRIRED. i' P Jl E F A C E . Hh Id the year 1850, when tlie Court of Common Pleas was constituted tiniliT the statute 12 Vic, ch. 63, tlie King's Bench was the only common law court of suporior jurisdiction in Upper Canada. From the time that this Court was cstaljIisheJ, in 1794, no reports of its decisions were published until the year 1S2S, wlien Mr. Tavlor, who iiad been appointed Reporter to tlie King's Benrh under a statute of tiie Province passed in 1823 (4 Geo. IV. cli. 3), published a volume of printed reports, commencing with Trinity Term IS'23, and endin;5 with Trinity Term 1827, during which period the late Chikk Jusiice Powki.l and Sir William Campbell were succes- sively at the head of the Court. The profession however was so limited in the number of its members that there was too little encouragement to continue printing the reports, and it was abandoned until Michaelmas Term 1829, when Mr. Draper, now one of the Judges of the Queen's Bench, being at thai time Reporter, resumed the publication, commencing with the period when the present Chief Justice and Mr. Justice Macaulay, now Chief Justice of the Common Pleas, became members of the Court. A volume printed under the superinten- dence of Mr. Draper in 1831 contained reports of the decisions, beginning with Michaelmas Term 1829 and ending with Easter term 1831 ; but it was not carried on by his successor, no adequate provision having been made to meet the expense, until the year 1840, when the statute 3 Vic. ch. 2 was passed for that purpose. In 1845 Mr. Cameron, who was then the Reporter, commenced the regular ])ublication of the Reports of the Queen's Bench I'rom Easter Term 1843 inclusive downwards, and this has been continued in an unbroken series by Mr. Robinson, the present Reporter, whose publication commenced with the third volume of the new series, and hiis now reached the ninth volume, briniring up the cases to Trinity Term 1851. Tlie reports for each year about fill an octavo volume of 600 pages. The present Reporter has also resumed the publication of the reports for the intermediate period between JNIr. Draper's book and Mr. Cameron's fust volume, in a series of volumes intituled " Old Series," which is printed in quarterly numiiers. This, when completed, will fill up the space between Easter 1831 and Easier 1843 j they now reach to Trinity 1836. Thirteen volumes in all have been published of the Reports of the Queen's Bench in Upper Canada. • ^^ -1 Mr. (Jamruon puhlislifil III In 10 Diirt-sN of Cases fioiii Michaelmas 'IVnn 10 Geo. IV. (IS'AS) to Hie end oCilie year 1S1.3. Since that time, which eovors an interval of nearly nine years, (he decisions of the Court can only be foiiiitl by searchiiii; tliiouirh the index af the end of each volume, whicli has become at leiiiilh a tedious task. It appeared to the compiler of the Digest now oflered to the profession and the public, that he would be rendering a valuable service liy collecting in one volume a Digest of all the cases that have been printed. bei;inninjr with Mr. Taylor's volume and incluihnfi all those of the Old Series which are yet to be published. And he has endeavored to increase the convenience by n minute and accurate classification of the diflerent subjects, which he trusts will enable all wlio arc conversant witii legal proceedings to turn readily to vvliatever the thirteen volumes of reports contain. The profession wijl *ee that there has been at least no sparing of labor, and it is hoped that they will find that it has been carefully and judiciously applied. Such an attempt in the present staf^e of progress of this country holds forth little jirospect of gain to the person making it, and indeed is not wholly free from risk. To make the undertaking in any degree remunerative, it will require to be very generally patronized l)y the profession, since it is almost exclusively among its members that such a work can be expected to circulate. Yet it is hoped that it will be found useful to others ; and that, among the many who are interested in the operations and proceedings of municipal bodies, banks, insurance companies, and other joint-stock associa- tions, there will bo some who, though they are not lawyers, will think it desirable to have at hand the means of referring to whatever has been decided in the Queen's Bench on these subjects of great public interest. And it seems not unreasonable to expect that the members of the legal profession in some of the otiier British Colonies will desire to furnish them- selves with a Digest which will convetiiently direct them to decisions in Upper Canada made through a long series of years, upon (luestions which a similarity of circumstances must be iVcquciitly giving rise to in each of the Colonies. It is now necessary to make a few explanatory remarks on the manner of executing the work. A single case frequently embraces several imjiortant |)oints, recjuiring to bo placed under distinct titles. This liars been done to as great an extent as seemed practicable. Whenever the statement of fiicls was not too long, it lias been placed tinder each particular title. But when (his would have led to tedious prolixity, the compiler has placed tho case under the most importunt title,, and made a leforenue to it fium each of llic other titles. li Again, in searching for n cnse or a decided point, all persons will not look lor it under the same title. Takinsf, for example, the case of costs in actions hroiiglit on jiids;inents recovered in another Court, some, in looking for the decisions u])on this i)ranch of our law, would look to the title " Costs," whilst others prohahly would expect to find them under the title " Judgment." In every such case the title most likely to occur to the mind of the practi- tioner has been the one chosen, if proper in other respects. In the t use ;d)ove supposed, '< Costs" has been the title chosen in preference to " Judgments." But although this rule of adopting the title most likely to be rei' .red to has hecn carried out, «lie ther titles likely to occur to the mind have not h' en altogether omitted or loft unnoticed ; they have been inserted whfnevrr thought (1,. nnd a reference made from them to the title where the case •nought for will be found. This will sulliciently account for the numerous references made in different parts of the work. Another rule observed, was always to place a case under its peculiar title rather than under the general class to which it belongs. Thus, cases of judgment as in case of nonsuit, similiter, and other matters of practice, have been respectively placed under the titles "Judgment as in case of Nonsuit," "Similiter," &c.,and not under the general title "Practice." This rule has served to keep the title " Practice" from extending to an unreasonable and perplexing length. In one case only this plan was found to be almost impracticable ; it was the compiler's intention instead of indiscriminately placing all cases of writs under the title "Process" to make the several kinds of writs distinct titles of their own, and this scheme has been partly carried out in "Capias ad Respondendum," "Ciipias ad Satisfaciendum," "Dis- tringas," &c. ; but when, during the progress of the work, the compiler came to the title " Summons" an unexpected dilTiculiy appeared. It will be recollected that the original non-bailable process, now a writ of summons, was until very lately a non. bailable ca. re. ; so that all cases of non-bailable process, including the non-bailable cii. re., could not with propriety be placed under the title " Summons." To obviate this difficulty to some extent, all cases of bailable ca. re. will, as heretofore, be found under the title "Capias ad Respondendum," and cases of non-bailable ca. re. and summonses under the title "Process," meaning original non-bailable process. But for this difficulty the title " Process" would not have been used at all. On somewhat the same principle it will be seen that the titles " Execution," " Fieri Facias," and " Capias ad Satisfaciendum," have found their places in the work. The distinction between them is this — under " Execution" will be found only general matters relative to issuing executions, and making seizures under them, some of which apply as much to one species of execution as to another; but under the titles " Fieri Facias" and " Cai>ias ad Satisfaciendum" will be found such cases as peculiarly belong lo thos. titles and no other. %,u P All cases decided whilst the Bankruptcy Laws were in force have been inserted in full, not only because those laws have for certain ])nrposes been revived, but because the cases are few in numl^er; and it is probable that at no distant period we may have some system of l]ankruptcy Law restored. Two or three cases decided under the Old Court of Request's Act, have been placed under the title " Division Court," from the similarity to the practice under the present Division Court Act. There may be a few other cases which can no longer be relied upon as directly applicable under the present system, from the fact of the laws on the particular points aiVected by them having been altered by recent legislation ; but the conij)iler, as far as his knowledge enabled him, has noticed those cases and the statutes affecting them. Some of the statutes of last session of Parliament have rmt been thus noticed, having been passed and become law after this work was written and arranged for the press. There are iiiiloed but few rasos which have been intentionally omitted on the ground of their not being l;uv at present, and a skilful practitioner will readily discover them. The ini>st obvious example of this occurs with rolbronco to the title '• Eji'cimoMt," which, lV<»m the enactments of the late statute 1 1 &. I") Vic. cli. 1 II', would seem to be of little or no use ; but it must be borne in mind that the woriiing ol that Act is not yet settled — it will recpiire decisions of the Couits to establish it and make the practice secure. Besides, the writ under the new act must bi* served in the same maimer as the declaration under the old law, and here therefore the cases decided under die old law will be found available and indispensibly necessary. Among the suggestions given to the compiler by his friends, one particu- larly pressed upon him was the imjiortaiice of having our statutory decisions so classified that at a glance the information soucht could be speedily obtained. The reasons urged were, that up to 17f)2 we can find the English law in English books, but that since that period we must look to our own statute books, and to the construction given to tlio iliflerent imperial and provincial statutes by our own courts. To sujiply this want, there will be found in the following pages a Chronologicnl Table of such statutes, both imperial and provincial, as have from time to time come before our Court of Queen's Bench for judicial construction ; at least all the cases that could be collected from the reports and digests now printed. For an explanation of this table, the reader is referred to the note heading the same on page 40S. From a careful examination of the cases contained in the work with the reports from which they were taken, it would seem that in arranging the cases under the different titles a few have been inadvertently omitted ; but, in order that they might not be altogether lost sight of, the compiler has briefly referred to them on page 535. Since the completion of this Digest in November 1851 it has been in the hands of the printer, and owing to delays occasioned in procuring type, paper and other necessary materials,, besides the ordinary delays of printing, nine months have elapsed, during which time the eighth volume of the Upper Canada Reports has been issued. And the compiler, feeling that it would be of service to the profession if the digests of the cases it contains were embodied in this work, has added it in an Appendix, nearly as it appears in the volume from which it was taken, thus completing the Digest of Queen's Bench cases down to the latest period. Toronto, Jlugust 3, 1852. 'I } I J EXPLANATION OF ABIJliE VIATIONS. Tay. U. C. R Taylor's Upper Canada Keports. ^'■'>- ^«P Draper's Reports. ?'^"' King's Bench Reports. Old Series, ^' ^- The Upper Canada Reports. ^'^P-') Appendix. %♦ Cases followed by the nanne of a Law Term refer to the Manuscript Reports of that Term in the Library of the Law Society. In the references at the head of each title the Roman numerals, as IX., .leno.e the larger d.v.s.ons of titles ; the Knglish figures enclosed in parentheses, as (!,), tl sP' Pii' 1 H of ^H me H pa I^B jur H pie H^ »I Hb Bor ^B fer 1 tw 1 €U ■1 w H leg ^M pli( ^M oth ^M tra H &c ^1 eer ■1 red ^^H rer H Mi ^H J ^1 ide |H the e ■te *• .V DIGEST OF EEPORTS IBOH THE COMMBNCEMENT OF TAYLOR'S REPORTS, TO TIIE END OV THE BETEMTH VOLUME OF ROBINSON'S REPORTS. ft* ABANDONMENT OF SEIZURE. See FxEcuTioN, 19. Sheriff's Sale, 6. ABATEMENT. See Dower, II. 10. — Interlocuto- ry Judgment, 4>. — New Trial, II. 19. — Payment into Court, 2. — Practice, I. 2. Plea — Non-Joinder — Replication — Duplicity therein.] — 1. In a plea of non-joinder by a defendant in abate- ment, it is sufficient to state that the parties not joined are living within the jurisdiction of the court at the time of plea pleaded, and a replication to such a plea for the non-joinder of two per- sons is not double for assigning a dif- ferent cause for not joining each of the two. Yuille V. Harvey, ii. 0. S. 2 1 5. Plea — In abatement of Privilege as an Attorney — lieplication.'] — 2. Where to a plea in abatement of privi- lege as an Attorney the plaintiflT re- plied process issued against him and others, under 5 Wm. IV. ch. 1, (res- training several actions on bills, notes, &c.,) and that the others could not be served &c., and the defendant demur- red — the court overruled the demur- rer. Richmond et ai. v. Campbell, Mich. Term, 2 Vic. Plea— Non-joinder— Place of Res. idence.] — 3. If a plea in abatement of the non-joinder of a defendant do not •tate his place of residence, it is a nul- lity. Brewster v. Davy, Hil. Term, 2 Vic. [Statement of place of business is insuffi- cient. Mayhury v. Moodie, 12 Jur. 80.] Plea — Non-joinder — Initial Let- ters.'] — i. A plea of non-joinder in abatement is bad on demurrer, if it state only the initial letters of the chris- tian names of the party not joined. Hastings v. Chamjjion et al., Mich. Term, 3 Vic. Feme Sole — Marriage after rule nisi obtained for Judgment as in case of nonsuit — Costs — Coverture puis darrein continuance.] — 5. Where a feme sole plaintiff had married after rule nisi obtained for judgment as in case of a nonsuit, which was after- wards made absolute, and she applied to set it aside, her rule was granted on payment of costs, and leave was given to the defendant to plead the coverture puis darrein continuance without affidavit. Warren v. Kirby, Mich. Term, 3 Vic. Plea — Non-joinder — Third con- tracting Party not named ] — 6. A plea of non-joinder in abatement of a co-defendant fails where there is a third contracting piirty not named, al. though such third party be out of the prqvince. The plea in such a case shimld shew all the parties liable, and then state that one is out of the pro. vince Term, 3 Vic. Action against a Sheriff'— Plea— ' Auter Jlction.l — • V. In an action McKnight v. Scott, Mich. !l ■ i I 11 ■ ■ i \ ■A ! 10 ABSCONDING DEBTOR. ABSCONDING DEBTOR. against a sherifT and his sureties on their covenant, under 3 \Vm. IV. ch. 8, it is a good plea in abatement that another action for the same cause is pending against the shcrifl' alone. Commercial Bank v. Jarvis et al., Hil. Term, 5 Vic; Plea — Non-Joinder.'] — S. A. sues B. alone in assumpsit; B. pleads in abatement that he made the promises jointly with C. ds D. ; that C. is resi- dent within the jurisdiction of the court, and D. without : — Held, on de- murrer to plea in stating D. to i)e resid- ing out of the jurisdiction of the court that the plea was good. Corbelt v. Calvin, iv. U. C. R. 123. 9. On a joint contract by three, all must be sued, if within the jurisdiction of the court. If one is without the ju- risdiction, the other two must be sued. One alone cannot be sued il' tiiere are two remaining within the jurisdiction, because all three cannot bo sued. lb. ABSCONDING DEBTOR. See Attorney, 11(3), 6. — Bills of Exchange etc., V. 2. — Costs, IV (2), 1. — False Return, 7. Attachments refused— Affidavits, ] —1. An attachment was refused un- der the Absconding Debtor's Act, 2 Wm. IV. ch. 5, when; only one person besides the creditor swore to the debt- or's absconding or concealment ; and per Curiam, the safest rules in fiamini; affidavits under this statute will be to follow as nearly as possil)Ie those re- lating to the common aflidavits of debt. AnonymouSfW. 0. S. 292. Affidavits.'] — 2. Where the persons swearing to the departure or conceal- ment of a debtor reside at a distance from his place of abode, they should state in their affidavits the grounds of their belief. Bank of Upper Canada V. Spa, ford, n. O. S. 373. Attachment may issue j)endente li- le.J — 3. An attachment against an ab- sconding debtor may issue pendente lite , and where a defendant was ar- rested and gave bail, who were after- wards discharged by a reference toar. bitration,and he tlien left the province, the court refused to set aside an at- tachment which had been issued against him as an absconding debtor. (Macaulay, J. dissentiente on this last point.) Mosicr v. McCan, iii. O. S. 77. Proceedings ai^atnst, set aside.] — 4. Where a j)laiiitilV proceeded after a delay of more than a year from the issuing of his attachments, the pro- ceedings were set aside and wn s of supersedeas ordereil to the at ch- nients. Ba?ik of l^/)per Canada v. Spa ford, iii. 0. S. 7S. Jl'hcn entitled to a Supersedeas to an AttacliDicnt.] — Ty. An absconding debtor who having returned to the |)roviiice, gives the bond rccjuired by the Act, and puts in special bail, may have a supersedeas to the aftacliinent. Clark ctal. v. Mallcnj, iii. O.S. 157. Wlien mesne process may issiie.'\ — 6. JNIesno process cannot issue un- der the Absconding Dobtor's Act, un. til three months have elapsed from tho first advertisement under the attach- ment. Banker v. Grijfin, iii. 0. S. 163. Attachment set aside, Affulavit dt, • i?ig insHjflcirnt — Motunt.] — 7. A: atta>'hnieiit was set aside, the allidovu <)•" the creditor l)eing lor money len and not stating by whom, and a certi- lied copy of an allitlavit filed in the ollice of the clerk of the Crown is sulficient to move upon. McKcnzie V. Busscll,\u. O. 8.313. When Property of a Person usual- ly residinii; in the United Stales may he attached.] — 8. The pro|)erty of a person wiio usually resiclesin the Uni- ted States, but who engages in an un. dei'takiiig in this country, employs persons here and comes freijuently to superintend their work, may be at- tached under the Absconding Debtor^s Act. Ford V. Lusher, iii. 0. S. 428. m I <0R. ABaCONDING DEBTOR. ABSCONDING DEBTOR. 11 e pendente nt was ar- vvere after- rence to ar. le province, side an at- cen issued ling debtor, on this last ii. O. S. 77. Jed alter a ir from the ;s, the pro- and wri 9 of the at ch- Canada v. perscdcas to I absconding 'ncd to the re(|uircd by al bail, may attachment, i. O.S. 157. mm/ miie.^ lot issue un- ji-'s Act, un. ised from the tlie attach- set aside reditors of Montreal R. 131. s.] — 25. irocess and lly |)rior to under the and obtains ng creditor, to priority. America v. 'ng put up filing Affi- ). The not Rce a copy inst an ab- as the not le requires, ition, being t have the was done m. Boulton 15. inst Estate Meighan et the Act by ing debtor lents neces- iee Thomp- 87. redilor can nuch of the g debtor as against the ,5. BILLS. E ETC., II. ACCIDENT. 5'«eCARRiER, 5,12,13, 14, 16. Case (action on the), 10. ACCOMMODATION BILL, or INDORSEMHNT. SeeBiLLa of Exchange etc., VI. 4 5, 9, 10. ACCORD AND SATISFACTION. See Escape, 26. Payment, 6. Pleading, II. 32, 35 ; V. 2. Delivery of Goods necessary.] — 1. Goods agreed to be accepted in satis- faction and discharge of the causes of action in the declaration, and of all damages, &c., must he actjially deliv- ered ; readiness to deliver will not do. Thomas v. Mallory, vi. U.C.R. 521. [An order to deliver goods was held to be an insufficient satislaction. Griffiths v. Ouxn, vii. M. & W. 58.] 2. Semble, that a plaintiff may, after breach of the promises stated in the declaration, legally agree to take a contract or new agreement to deliver goods, &c., in full satisfaction of the former promises and of the damages accruing from the breach of them. lb. When a Promissory Note may be taken in satisfaction.] — 3. Where an action is for tort, and the damaifcs in the discretion of the jury — Semble, that a promissory note may be taken in satisfaction ; the principle that a less sum of money cannot be taken in satisfaction of a greater not applying in such a case. Lane v. Kingsmill, vi. U.C.R. 579. Common Counts — Damages 200/. — Plea, payment of 3/.] — 4. Declaration on the common counts, laying the damages at 200/. Plea— accord and satisfaction by the payment of 3/. in full of all damages in the declaration mentioned. Held per Cur., on de- murrer to plea, plea bad in setting up the payment of 3/. as a satisfaction of 200/. claimed. O'Beirne v. Gotoin, vi. U. C. R. 582. I In Mitrliell v. Cragg, x. M. k W. 367— an iiction on a hill ot exchange— ihe pleas were litid bad in not averrinsj tiint the sums paid equalled the amount of the bill.] Svrj)fusa — Limitations (Sta- tute of), III. 3, 9, 10. ACCOUNT (ACTION OF) See Limitations(Statute of), III. 3. Action betu-een Tenants in Com- mon or Joint Tenants.] — 1. At com- mon law there can be no action of account by one tenant in common or joint tenant, unless there has been an appointment of one l)y the other as bailiff. Gregory et ux. v. Connolly, vii. U. C. R>)60. 5 Jlnne, ch. 16.] — 2. Under the statute 5 Anne, ch. 16, however, one tenant in common, or joint tenant, may be sued as bailiff in an action of ac- count, whenever he has entered and takeo more than his just share of the profits, whether by ap{iointment of his co-tenant or not. lb. Right of Coparceners to sve each other in arrouiit.] — 3. Semble, that coparceners not coming within the statute f) Anne. ch. 16, sec. 27, can- not sue each other in an action of account. The point, however, was not expressly decided, as the court held that in this case t'.o fads shewed that the delendant entered into posses- sion of the land not as a coparcener claimintr through his wife and in pri- vity with the i)laintiff, l)ut as an cx- e'Mitor claiming adversely to the plain- tiff without his consent; and that on that ground the action of account would not lie. lb. ACCOUNT STATED. See AnPEST, I. 20, 25. — Bills or Exchange etc., 1. 7. — Contract, 9. — District Council, 10 Exe- cutor etc., II. 4. — Limitations (Statute of), III. 4, et seq.; IV. 9. — Monet had and received, 6. Nolle Prosequi, 2. — Partners ETC., 3, 10. — Stock Notes, 1. Express Promise.] — 1. The plain- tiff may recover on the count for an account staled on an exjiress promise to pay the amount of an account, the admission of the correctness of which, by the defendant, cannot be received in evidence under 2 Geo. IV. ch. 13, the account being made up and ren- dered in New York cu'-'-ency, and the debt having been contracted in this province. Crooks et al. v. Law, Trin. Term, 7 Wm. IV. Evidence under.] — 2. In an action against one of two joint makers of a proniissoiy note, who made it as a surety for the other, the note is not evi- dence under the count for an account stated. Hogan v. Malone, Hil. Term, 7 Vic. Evidence of.] — 3. A promissory note given to an agent upon a settle- u itment of his to sue each Svmble, that witliin tlie !cc. 27, can- in action of )\vover, was s the court facts shewed I into posses- 1 coparcener and in prl- it as an cx- to the plain- and that on of account TED. . — Rills op -Contract, ,, 10 ExE- LlMITATIONS ET SEQ.; IV. lECEIVED, 6. — Pautners [OTES, 1. The plain- oiint for an rcss promise account, the ?ss of which, be received IV. ch. 13, up and ren- ncy, and the icted in this . Law, Trin. In an action makers of a adc it as a >te is not evi- r an account ;, Hil. Term, promissory lon a settle- i ACCOUNT STATED. ment of accounts, may be used as evi- dence of an account stated with the person for wlioni ho was actina; when ACKNOWLEDOMBNT. 15 satisfactory evidence of an account stated. Semble; That if tliere had lieen satisfactory cidence of an ac- the fact of agency was known to tiie ••ount slated, tiie S'-itute of Frauds other party. Modes v. Executors of would not liave ajiphed, though the Crawford, i. U. C. R. ivH. I sum was duo ii' respect of the sale of Effect of Jldmisshns by Executors.] >iiM(ls.^ Curtiss v. Flindull, iii. U. C. An admission by an oxecutor of a ^' •'"*■'• [Tlio general principle is, that there must be a slatt-ment of some ccriain amount being due, whicii stutement must be made to the paity himself or to his agent. Hughes y. Thorpe, V. iM. & W. 667.] ^^irrcemenf to pni/ Debt of another. ^ 7. Where A. as part coiisitleration for the piircliase of certain timlier from B. piDiiiises C. to pay B.'s debt to him of debt due by his testator, is not sulTicieiit to take the case out of the Statute of Limitations in an action against the executor, without an express promise on his part to pay the delit admitted ; but an account stated by an exi-ciitor of a debt duo by bis testator which had never before such accouiitiiiy; been as- certained or deteriniiied, is siitiiicienlto . charge the executor as a suiistaiitive i ~^)'- "'"I P^vs 10/. to C. and is to pay debt without any express promise to the ivmainiiis; 10/. next morning: Held pay. fVatkins'v. Washburn, ii. U.!/'"' Cm/-.— reversing the judgment of C. R. 291. *''^' court below — that C. could recover ' Evidence of .1-5. In an action f,,,- 1 '''^V"^'- «".'tl'»; »«•<•<"'"» «ti'ted in an goods sold,andupo'iai. account state.l, ; ^"■':V'V>^=:!'";!,lV ^"''i'^^^^^ V' ^"^f where the plaintilf's demand had been V. U. C. R. 2G1. of several years' standinii, and Uie jury gave a verdict for 18/., the court iijioii a motion for a new trial, considered that evidence of an acknowledgment by letter of an account being duo and of an account having been read over to the defendant, to \\ liich he made no objection, coupled with evidence that an item of 2/. which was contained in the bill of particulars produced in court, was the same with that read over to the defendant, and with the witness's belief that the accounts were the same, was sutficient to siijiport the Verdict, though one principal ground of the witness's belief of the accounts being correspondent arose from his knowledge of the plaintilf's character. Large v. Perkins, Tay. U. C. R. 7.^. Evidence of. — Jldmissions to a third party. — Sale of Lands. — Statute of Frauds.] — 6. A defendant casually observing to a third party, in the pres- ence of the plainlilT", that he had paid the whole price for his land, except a certain sum, wiUiout any further ex- planation of the circumstances, is not J^'ote, 2)rima facie evidence of.] — 8. A promissoiy note is prima facie evi- dence of a settlement of accounts up to the time of giving it. Mitcfiell v. Jennings, i. U. C. R. .^337. Statute of Frauds — 'ith section, an item bring for the sale of Lands.] 9. An item in an account stated, being the sum charged for the price of a lot of land, does not make it incumbent on the plaintitV to jirove the agreement resjH'cting such land to have been in writing. Dalton v. Botts, Tay. U. C. R. 380. ACKNOWLEDGMENT OF SAT- ISFACTION OF JUDGMENT. jS'ee Interest, 1. ACKNOWLEDGMENT OF TITLE. See Limitations (Statute of), II. 8, 9, 11, 12. r ^1 1 16 ACTION. ADMINISTRATION BOND. ACTION. See Abatkment, f). — Apministra- TIO\ HoNn, 1,3. AlMMlENTlCE, '2. Arbitration and Award, VI (2), 1. — Attorney. 11(1). I"2.--Bank- RUPT ETC.,1'2. — Common Schools. 2. — Covenant, I. 8. — Distress, II. 2.— Escape, 20.— Feriiy, «.— Landlord and Tenant, I. 4'. — Magistrates, 10. — Money Paid, 2.— New Trial, I. 12.— Part- ners ETC., l(i. — Principal and Agent, .'). — Trespass, I. 13 — Water, 5. 6. Form.^ — 1. Trcs])asa or case will lie for seiliKtion. Cuvanv. Wuhh, Mich. Term, 1 Win. IV. [Trespass or case will aKo lie for criminal conversation. Chamberlain v. Haikwimil, v. M. & W. .517. Partiea to sue. — Injury to Goo(/.. In joint actions of assum|)sit a misjoinder of the defen- dants cannot be cured either by a nolle |)rose(iui or !)y a nonsuit as to some of the defendants — a nonsuit as to some is a nonsuit as to all, and a verdict re- turned for some of the defendants is null and void. Commercial Bank v. Hwrhes et al. iv. U. C R. 167. ACTION (NOTICE OF). See Notice of Action. ADDING COUNTS. See Amendment, II. 17, 33. — * — ADMINISTRATION. See Executor and Administrator. ADMINISTRATION BOND. See Pleading, II. 6. In the name of the Governor may be sued on in the name of his Suc- cessor — ^/Itermcnts,']—!. Semble, an administration bond taken in the name of the Governor or the person adminis- tering the government of the province for the time being, is good under the Probate Act, anil may be sued on in the name of any succeeding Grovemor lOND. ADMINISTRATION BOND. AFFIDAVIT. 17 ;>rtaking, yet ive brought not furnish- gonds sold. it Term, 3. jrm" of Ac- of capias be n action on the parties iisly. Tres- form against fst. Came- . C.R.138. ■] fendants in I actions of f the defen- cr by a nolle s to some of t as to some J verdict re- lefcndants is Tint Bank v. ,. 167. or person administering the govern- ment; and in an action upon Huch a bond it is suflicient, on genernl demur- rer, to allege in the broach that the administratrix wasted goods that came to her hands, without spocificnllj al- leging that goods did come to her hands, and also that she wasted tlie goods and converted them to her own use. Metcalfe v. McKemie et al,, ii. U.C. R. 103. Averment of goods coming into hands of administrator — Time.\ — 2, In such an action the declaration is bad on s'jte- «fl/demurrer,if the plaintiffmerely aver that the administratrix did not well and truly administer the goods, &c., which came to her hands, without dis- tinctly averring that goods did come to her hands; and it is also necessary that time should be laid to the aver- ment that goods did come to her hands to be administered. Metcalfe v. Mc- Kemie et al. ii. U. C. R. 329. In whose name action to be brought — Former Governor Subsequent Gov- ernor.]— 3. In an action on an ad- ministration bond given to a former Governor of the province, it is sufficient, even on special demurrer, that the ac- tion is brought in the name of a sub- sequent Governor. Metcalfe v. Mc- Kemie et al,, ii. U. C. R. 329. Action against a married ivomnn married after administration grant- ed.] — if. Where the action was brought against an administratrix who had married since administration, and her sureties, and the breach averred that the defendants did not pay the penalty of the bond — it was held sufficient on special demurrer without alleging that she did not pay while she was sole and unmarried, but the bond being condi- tioned that she should exhibit an in- ventory into the Court of Prot)ate on the first Monday in Jutte, and the breach being that she did not exhibit an inventory on the first Monday in the year, it was held bad on general demnrrcr. Metcalfe v. McKemie et al., ii. U. C. R. 103. ADMINISTRATION (LETTERS OF). See Letters of Administration. ADMINISTRATOR. See Executor and Administrator. ADMINISTRATOR DE BONIS NON. See Executor etc., I. 5. — II. 7, 8. ADMISSION OF DOCUMENTS. See Bond, II. 10. ADMISSIONS. I. In Pleadings. See Pleading, IX. II. As Evidence. See Evidence, VII. ADVERSE POSSESSION. See Limitations (Statute of), XL — « — ADVOCATE. See Attorney, IV. 2, 3. — Counsel. AFFIDAVIT. See Absconding Debtor, passim. — Arbitration and Award, VI(1), 2, 3, 5 ; VIII. 10.— Arrest, L— Attachment, II. 2, 10. — Capias AD Respondendum, 3.— Capias ad Satisfaciendum, 1, 3, 12. — Com- mission to Examine Witnesses, passim. — Costs, IV(1), 8, 9, 11. i I ■fe 18 AFFIDAVIT. AFFIRMATION. Dower, II. 3. — Ejectment, III. 4,6,7,8,9, 12,13; V. 1, 4.— Evi- dence, IV. 2. — Judgment, 7. — Judgment as in case of Nonsuit, III. 2, 3.— Jury, 9.— New Trial, XI. 3. 4. — Practice, II. passim. Recognizance, G.— Security for Costs, 2, 3. Jurat."] — 1. In the jurat of an afli- davit sworn by an illiterate person, the omission of tlie statement tliat the de- ponent appeared to umlerstand it is fatal. Moore v. James, Dra. Rep. 2-ir). Jurat.'\~2. An alVuhuit made by two persons not stating distinctly m the ji'rat that both were sworn, cannot be read. JVkholson dem. SpuJ/ord v. Roe, iii. O. S. 84. [Case in 7 T. R. 82, upheld.] 3. But an amendment will be allowed by the insertion of their names. Fish- er V. T/iayer, Trin. Term, 7 Wm. IV. Intituling of — Initial letters. — !•. Where all the airidavits in a cause after verdict were intituled with an initial letter between the cliristian and sur- name of the defendant — it was held that it was no objection to an alfidavit made by the defenilaiit himself that the second name was not set out at length, as the initial might be nothing more than a distinctive letter. Ken- drew V. Jlllen, Trin. Term, 4 & .^ Vic. Intituling,] — 5. In intituling an af- fidavit in a cause, the additions of " plaintifl'" and " defendant" must be inserted. Brown v. Sim^nonds, i. U. C. R. 280. [Upheld in Chafe v. Parr, ii. U. C. R. 98.] Sworn before partner of attorney. ] — 6. An aflidavit sworn before the partner of the attorney of the party on vvhose behalf the aflidavit is made, cannot be read. Iladley v. Hearnset d., i. U. C. R. 40.'). [See also While v. Fetch et al. New Trial, XI. 3.] Verifying copy of paper.] — 7. An affidavit verifying the copy of a paper, " that it is a true copy, as the defendant is informed and verily be- lieves," is sulficient. Chafe v. Parr, ii. U. C. R. 98. Jurat — Commissioner.] — 8. The ju- rat of an aflidavit is sufficient if it con- tain the signature of the commissioner who took it, without the addition of any words shewing him to be a commis- sioner. Henderson v. Harper, ii. U. C. R. 97. [Upheld ill Brown et al. v. Parr. ii. U. C. R. 9S. Murphy v Boulton. iii. U. C. R. 177.] [But the omission " before me" would be considered fatal. Reg. v. Norbury, vi. Q. B. 534.] Jurat.] — 9. An affidavit was not considereil inefficient, because the place of taking it was omitted in the jurat. JPLean v. Cumming, Tay. U. C )J. 240. [Also, Fairbrass v. Petit, xii. M. & W. 453. Contra : Boyd v. Strailer, vii. Price, 662. Rex V. Cockshaw, ii. N. & M. 278.] DeiwnenVs Degree.] — 10. Semble: Under our rule 2 Wm. IV. it is not necessary in any case to state in an aflidavit of cither the plaintiff or the defendant the deponent's degree, cer- tainly not where the alfidavit is sworn in a foreign country. Eiving et al, v. Lockhart', iii. U. C. R. 248. [QufEre: Whether the defendant having giv(!n bail to the limits, would not preclude him from talcing a formal objection of this kind] lb.] Comm.issioner — Interlineations — Jurat.] —11. It is not necessary that a commissioner should put his initials oppo,5ite interlineations in the affidavit itself, or notice such interlineations in the jurat. Lyster v. Boulton, v. U. C. R.632. AFFIDAVIT TO HOLD TO BAIL. See Arrest, I. AFFIRMATION. See Arkbst, I. 39. AGENT. ALIAS FIERI FACIAS. 19 opy, as the verily be- fe V. PaiTf -8. The ju- :nt if itcon- )mmissioner lition of any ; a commis- rper, ii. U. "rtrr. ii. U. C. U.C. R. 177.] tne" would be ury, vi. Q. B. 'it was not use the place n the jurat. ly. u. 0. a. [ii. M. & W. vii. Price, 662. 278.] 10. Semble: [V. it is not state in an lintiff or the degree, cer- vit is sworn ring et al, v. 8. ;ndant having not preclude )jection of thii ineafions — ceasary that it his initials the affidavit -lineations in tlton, V. U. ) TO BAIL. AGENT. See Principal and Agent. AGREEMENT. See Arrest, IV. 12.— Assumpsit, passim. — Bills of Exchange ETC., VII. passim. — Bond, II. 13. — Common Schools, passim. — Contract. — Covenant, I. 9 ; II (2), 6, 16. — Demurrage, 2. — Dis- trict Council, 3. — Ejectment, I. 16, 17, 19, 22, 23 ; VIII. 9, 10, 11. — Evidence, I. 5,6,7.— Exe- cutor ETC., I. /. — Frauds (Sta- tute of); I. 2, 3,4', 5, 6. — Goods Sold, 9.— Landlord and Tenant, I. 1.— Penalty. — Pleading, II. 16. — Stock Notes. — Sunday. — Term's Notice, 1. — Usury,11,12. N. 39. Want of consideration disclosed on the face of agreement.^ — 1. An agreement declared upon in the follow- ing manner was held to be bad, as dis- closing an agreement void in law for want of a legal consideration to support it : " That it was amongst other things agreed, that in consideration diat the plaintiff had leased from the defendant certain lands at 5s. per acre, the defen- dant undertook and promised that he would within a certain lime build a house and barn on the premises so de- mised, and that for every acre of land cleared and fenced in fields, not ex- ceeding 7j acres, by the plaintiff, he, the defendant, should pay to the plain- tiff 3/. for every acre of land so cleared and fenced as aforesaid." Cunning- ham\. Richardson, vii. U. C. R. 163. Substitution of neto agreement. — original consideration imjtortcd into new.'\ — 2. While an agreement is open between the parties, and the time for performance has not arrived, a new agreement may be substituted for it, postponing the period for performance, and the original consideration will be j regarded as imported into such new agreement and will be sufficient to sup- port it. Hurlburt v. Thomas, iii. U. C. R. 258. Construction of] — 3. In trespass for mesne profits, before the verdict was taken, the plaintiffs and the defen- dant signed a paper, by which it was agreed " that in case a verdict shall be given for the 2>li'intiJ/', the costs in the suit shall be left to be taxed by &c., and the value of the mesne profits shall be decided by, &c." The court held that the words " in case a verdict shall be given for the plaintiff," did not pre- clude the defendant from contending against a verdict at the trial, upon any grounds he might have in law, or upon the merits. Patterson v. Prince, vii. U. C. R. 528. Agreement to deliver timber in certain ap2mnted places — JYotice before action.] — 4. Where by an agreement die plaintiff is to deliver not personally to the defendants, but to certain part.? of a road, a certain quan- tity of timber to build certain bridges, he must notil^v the defendants of the .livery before he can bring an action. Watson v. 542. Gowen et al., vi. U. C. R. ALBION ROAD. Tolls — When to be collected on VaughanBranch.\ — Semble : That tolls on the Vaughan Branch of the Albion Plank Road can only be collected when the road is made, according to the re- quisition contained in the 33d section of the statute 9 Vic. ch. 88. Regina V. Haystead, vii. U. C. R. 9. ALDERMAN. See Indemnity Act, 2. ALIAS FIERI FACIAS. iS'ee Fieri Facias, 1, 3, 10. i K f 4 20 ALIEN. ALTERATION. ALIEN. See EviDENCF, V. 1. — Naturaliza- tion. Conveyance to. — Title of persons claiming through.^ — ^1. A coHvovanci' in fee to an alien is not Toitl, \mi lie holds for tlie benefit of the Crown and is entitled as ajrainst others until the land is seized into the hands of the Queen on oflTice found ; and if a subject be a trustee for an alien, he has the legal estate, and the Queen is entitled to the profits ; and a person claiming through an alien may have a good title, although the alien himself would hold only for the benefit of the Crown. Doe dem. Richardson v. Dickson, ii. 0. S. 292. WhoisanJ] — 2. A person who was born in the United States before the revolution and has continued to resiile there since, is an alien and cannot maintain ejectment in this countiy. Doe dem. Pater son v. Davis, Easter Term, 7 Wm. IV. Conveyance of. — Defence of alien- age.] — 3. The conveyance of an alien is good except as against the Crown ; and where a subject has conveyed to an alien he cannot afterwards, on an ejectment by the grantee of the alien, set up the alienage as a defence for his own benefit ; nor will such a defence avad him in an action by the alien himself; and where the defence of alienage is made, it must be clearly shewn that the party is in fact an alien, by proof of his place of birth, &c. Doe dem. Macdonald v. Cleveland, Hil. Term, 4 Vic. Who entitled under 9 Geo. IV. ch, 21, to inherit land.] — 4. The son of a woman who was a British subject but who was married to aii alien out of the King's allegiance at the time of her son's birth, is not entitled under the provincial statute 9 Geo. IV. ch. 21, to inherit land whicii had been grantetl to his mother in this province. Doe dem. Robinson v. Clarke, i. U. C. R. 37. Purchaser at sheriffs sale. — Right to recover in Ejectment.] — 5. Semble: A person claiming lands under a sher- iir's deed is entitled to recover in eject- ment notwithstanding 5 Geo. II. ch. 7 ; it being necessarj' to take the objection of alienage, if available at all, before execution. Doe dem. Richardson v. Dickson, ii. O. S. 293. JSTot depritted of right to execution against lands of debtor.] — 6. Alien friends residing in their proper country cannot, upon a summary application to the court, be deprived, under the words of the statute 5 Geo. II. ch. 7, of their right to an execution against the lands of their debtor. Semble: The alienage should be pleaded in bar of execution. Wood et al. v. Campbell, iii. U. C. K. 269. ALIEN NE (PLEA OF). See Alien, 3. — Dower, II. 8. ALLEGIANCE. See Evidence, V. 1. ALLOCATUR. iSecATTACHMENT, II. 8. — ATTORNEY, III. 16. ALLOWANCE FOR ROAD. See Evidence, I. 1 ; II. 12. — High- way, passim. — Trespass, I. 11. ALTERATION. See Bills of Exchange etc., IV. S ; V. 9. Alteration of a joint note unthout the consent of one of the makers, who teas afterwards sued on it.] — Where a Mote originally joint was altered to joint and several without the consent of one of the makers, who was afterwards ? AMENDMENT. AMENDMENT. 21 lie. — Right •5. Semble: ider a sher- ver in eject- ). Il.ch. 7; le objection : all, before :hards(m v. execvtion — 6. Alien iper country ^plication to ?r the words 1.7, of their St the lands rhe alienage r execution, lii. U. C. R. .OF). R, II. 8. k 1. Attornet, ROAD. 2.— HlGH- iis, I. 11. :tc.,IV.8j )te without akers, who — Where a ;red to joint went of one afterwards sued alone upon the note by an indor- see : Held, that the plaintiff could not recover on the note on account of the alteration, nor on the money counls, as there was no privity betvvoon the maker and him. Samson v. Yager, Mich. Term, 5 VVm. IV. AMENDMENT. I. Of Writ and Return. II. Of Pleading and Record. III. Of Verdict, Postea and Judgment. IV. Of Other Proceedings. I. Of Writ and Return. Of Ji.fa. lands after sale.] — 1 . An amcnilmetit was allowed in a fieri fa- cias against lands, alter sale under it by the sheriff. Fleminsr v. Executors of Wilkinson, Trin. Term, 1 & 2 Vic. Defective ca. sa. not amendable] — 2. Where a defendant had been ar- rested on a writ of capias ad satis faciendum, which did not specify any sum as the amount fur which judg- ment had been awarded, the court refused to allow an amendment, as the writ was defective, and not merely irregular. BilUngs et al. v. Rajwlje, et al., Easter Term, 4 Vic. Wrong christian name in ca. sa. not amendable,] — 3. On a motion to Bet aside an arrest for irregularity, be- cause one of the defendant's christian names was wrong in the affidavit of debt and writ, an amendment by the insertion of the right name was re- fused and the arrest set aside. Allison V. Wagstaff, Michs. Term, 7 Vic. Amendment of Ji. fa. original to testatum, allowed.] — 4. The court allowed an original writ of fi. fa. to an outer district to be amended by making it a testatum, and an original writ to warrant the testatum to be Bued out, after the first writ had been placed in the sheriff's hands and after a motion to set aside proceedings for irregularity — without costs ; and dis- ' charged the rule for setting aside the proceedings without costs. Fisher v. Brooks, iii. O. S. 143. Ca, re. — Jlddress — Cause of action — Teste amendable.] — b. The court permitted an amendment to be made in the address, cause of action, and teste of a writ of capias ad respondendum. Myei-s v. Rathburn, Tay. U. C. R. 159. Ca. re. original not amettdable to testatum.] — 6. When a writ is bail- able, the court will not amend an original ca. re. by making it a testa- tum, though a precipe for a testatum be fded. Campbell v. Hepburn, Dra. Rep. 3. Fi, fa. amendable so as to relate to day of entry of judgment.] — 7. A writ of fi. fa. may be amended so as to liave relation to the day of the entry of the judgment. Aftdruss v. Page^ Tay. U. C. R. 478. Jlmcndmcnt of return to fi, fa, ordered.] — 8. Where a sherifi returned on hand " to a fi. fa., when no seizure, *' goods he had in fact made no seizure, and the plaintiff issued a ven. ex. but discovering that no seizure had been made subsequently issued another writ of fi. fa., under which tlie defendant's goods were seized, tlje second writ was set aside with costs, which the sheriff was ordered to pay and to amend his return to the first writ in accordance with the (acts, so that the plaintiff might issue another writ against the defendant's goods Lemoine V. Raymond, ii. U. C. R. 378. [See Sheriff, I. 13.] II. Of Pleadings and Record. Sec Costs, III. 5. — Judgment of NON PROS, 2. — Malicious Prose- cution, 2 — New Trial, X. 20. NuL tiel Record, 2. — Practice, I. 11,22,24. — Replevin ETC., 10. — Verdict, 8. P AMENDMENT. AMENDMENT. Declaration amended by sfrikinir out names of parties not servrdJ] — 1, Where the plaintilT had declared agaiiifit several defendants, when only one had been served, an amendment was al- lowed by striking out of the declara- tion the names of those not served. Zavitz V. Hoover, Mich. Term, 1 Vic. Substitution of " ^??'07n/.se and undertaking,''^ for "2yomises and undertakings,''^ ulloived.'\ — 2. The plaintiff was allowed to amend his declaration after issue joined on nul tiel record, by substituting " promise and undertaking," for " jiromises and undertakings," although there had been a trial on other issues concluding to the countiy. Church v. Barnhart, Dra. Rep. 456. Declaration in ejectment — Amend- ment of locus in quo not allowable.^ 3. The court refuted an amendment in a declaration in ejcctnient by alter- ing the name of the township in which the lands for which the action was brought were stated to be situa- ted. Doe V. Roc, Dra. Rep. 170. After assessment of contingent damages and unsuccessful demurrpr.'\ 4. Amendment of pleadings will be allowed after the assessment of con- tingent damages on a demurrer subse- quently decided against the plainlilV, where the justice of the case requires it, and the plaiiiliU' would be finally concluded. Brcaken/iridge v. King, Trin. Term, 5 «Sj (i Wni. IV. Mfeo Maxwell V. Ransom, infra 31.) (But an amendment upon demurrer, will not be allowed alter verdict on issues in tiict, Crucknell v. Trucmun, ix. M. & W. 68-1). Amendment of record after appeal to the King.'] — f). A record was amended in matter of form, after an appeal to the King in council. Rnivand v. Tyler, Easter Term, 7 Wm. IV. Amendment of declaration by inser- ting a sjKcial averment. ] — 6. Where a bond having been pleaded with a I profert, oyer had been demanded, and j it was set out by the defendant on the record, but the bond was not pro- duced at the trial, and the judge refused to allow an amendment by an averment of the loss of the bond, but left it to the jury under the statute, who found spe- i cially that the bond was lost: Held, I that on such finding the plaintiff was entitled to judgment according to the merits of the case, and the amendment was allowed. Ketchum et at, v. Ready, Trin. Term, 3 iV -t Vic. Variance betu-een pleadings and re- cord jirodund, amendable.] — 7. Where on trial by record, there was a variance between the pleading on which the issue was raised and the record pro- duced — t!ie court allowed an amend- ment, although a trial had been had on other i. Vic. Amendment of breach after vnsuc- ccssful demurrer, tiro terms after judg. inent delivered, refused] — 9. Where in an action against a sheriff 's sureties several issues were joined in law and fact, and afler trial and assessment of contingent damajres, judgment was given l()r the defendant upon the de- murrers, which were only to a part of the declaration, and a new trial granted him on payment of costs — the court would not, two terms afterwards, allow the plaintiff to amend the breach upon which the defendant liad obtained the juilffinent on demurrer. Watson et al, v. Hamilton, Trin. Term, 4 & 5 Vic. [See next case.] Amendment by defendant on afi- davit of merits, judgment on demur* :i FT. amended, and bndant on the .as not pro- judge refused >• an averment It left it to the ho found spe- i lost : Heldf plaintiff was ;ording to the e amendment t al. V. Ready, (limrs and re- .]-7. Where vas a variance )n which the e record pro- 'd an amend- d been had on etal. V. Har- Vic. lent record at i(r date of de- tVhere the de- as anterior to :! title accrued: it in the record correct time at nisi prius. Arnold, Hil. after vnsuo ms nfterjudgm —i). Where c riff's sureties lod in law and assessment of udgment was upon the de- ly to a part of w trial granted sts — the court erwards, allow e breach upon d obtained the Watson et al. 1, 4< <^ <^ Vic. ndant on affi,- \cnt on demur- ,(» AMENDMENT. rer being in favor of plaintifj] — 10. When the plaintiff has judgment on demurrer, the court will sometimes allow the defendant to amend on an affidavit of merits, even although the plaintiff has lost a trial. JMcCrae v. Hamilton, Mich. Term, 5 Vic. [As to amendments after nnsucccssfnl de- murrers, see cases 26, 27, 28, 29, 30, 31 and 38, infra.] Variance between contract set out and that jiroved — ^Imendment ivith costs allowed in banc.'] — 11. Whore the plaintiff was nonsuited for a vari- ance between the contract set out and that proved, the judge at the trial having refused to allow an amendment — the court, under the particular circiun- stanccs, granted a new trial and leave to amend on payment of costs. Law- rence V. Tindal, Mich. Term, 5 Vic. JVisi Prius record icit/idraicn and sealed before jury sworn — Amendment allowed.'\ — 12. Where a record had been entered for trial at the assizes for the Home District witltout having been sealed, and the onussion was not dis- covered until the morning of the trial, which was several days after the com- mission day, wlien the judge at Nisi Prius allowed the record to be with- drawn, sealed and re-entered, the court refused to set aside the verdict for irregularity, holding that the judge had power to allow the ameiulnient before jury sworn. McLean v. JVeeson et al. , Trin. Term, 5 & G Vic. Amendment injurata ofJVisi Pri- us record, allowed.'] — 13. Where in the jurata in the nisi prius record the time and place of holding the assizes were both wrong, being of a different day and of another district than that in which the venire was laid and the cause entered for trial, the judge at Nisi Prius allowed an amendment to the proper time ai... j)lace, and the court considered that the amendment was properly allowed. Doe dam. Corhett V. Sprouk, Trm. Term, 5 & 6 Vic. AMENDMENT. 23 Amendment of jurata after new trial gi-antid.l — 14. Amendment of jmafa ordered in banc, where a new trial had been ordered and the plain- tiff had neglected to alter the jurata, in conseciuence of which the judge at Nisi Prius had declined to try the cause. Doc dem. Crooks v. Cummings, i. U. C. R. 2r)(). [See next case.] 15. Held, that the Nisi Prius record not havmg been altered after a new- trial granted, but the entry being allow- ed tr, . ..tinue as before, of the jury being respited till the term next follow- ing the preceding assizes, the defect could not be cured by amendment. S?nith v. Shaver, vi. U. C. R. 20. Tresj)ass quare clausum f regit. — Amendment of locus in rjuo alloived.^ — 16. In trespass quare clausum fregit and a plea of not guilty, a judge at Nisi Prius may amend the description of the locus in quo in the declaration ; but a description of a house being on the corner of a lot is not supported by shewing that it is near the corner, but that there arc two or three other houses between it and the corner. Stanton et al. V. Windeat, i. U. C. R. 30. In ejectment by tenants in common on a joint demise, an amendment to separate demises is not allowable,'] — 17. Where tenants in common bring their action upon a joint demise, and ajiplication is made at the trial for a non-suit, they will not be allowed to amend by adding counts on separate demises. Doe dem. Anderson et al., v. Errington, i. U. C. R. 159. 18. Where the demise in a declara- tion of ejectment is laid as joint, and the evidence shews a tenancy in com- mon, the judge at Nisi Prius has not the power imder the stat. 7 Wm. IV., ch. 3, of allowing an amendment. Doe dem. Cuvillier et al. v. James, iv. U. C. R. 490. J\l^ame of lessor of 2ilaintiff'.] — 19. Quare : Whether a judge at Nisi Prius u AMENDMENT. can properly allow an amendment to be made in the name of the let^sor of the plalntifT? Doe dem. Ausman v. Munro, i. U. C. R. 160. A mendmcnt must be made at trial when allowed.'] — 20. Where at Nisi Prius leave is granted to a plaintiff in ejectment to amend the record by alterine the name of the lessor of the plaintiff, and neither the amendment nor any order for it on the record or postca is made at the time, the de- fendant will not be allowed subse- quently to make it. Doe dem. Jlnsmun V. Munro, i. U. C. R. 277. Replevin. — Amendment of demise at JYisi Prius.'] — 21. A judge at Nisi Prius has the power of making an amendment in the terms of a demise in an avowry in replevin. Leader v. Smith, 1. U.C. R. 366. AtJ^isi Prius by adding joinder in demurrer, alloived.] — 22. Where in trespass quare clausum fregit, the de- fendant had pleaded a special plea, to which the plaintifl' had demnrrod, but in making up the Nisi Prius record had omitted to enter the joinder in demur- rer, the court held that an amendment, by allowing it to be added, was ])ro- perly made at the trial. Bmilton v. Fitzgerald et ah, i. U. C. R. 476. Penal action — Making declaration to correspond icitheiudcnce, not alloiv- able.] — 23. Where after verdict for the plaintiff and new trial granted for a variance between the statement of the loan and forbearance as laid and that proved in a qui tarn action for usury, the plaintiff moved to amend his decla- ration by making it correspond with the evidence at the trial — the court dis- charged the rule. Frascr ronounced.] — 38. Where u})on the argument of a general demur- rer to a declaration, several objections were raised, which the court intimated were not bad in substance, but might have been sustained if specially assign- ed, and judgment having however been given in favor of the demurrer, the plaintiff amended and filed a new declaration, which was open to several of the same objections as had been urged on general demurrer, but which the defendant then objected to specially, and on the argument it was suggested to the plaintiff's counsel to amend, but he did not do so, and the court after- wards gave judgment against him — he was subsecpiently refused leave to amend. Metcalfe v. McKenzie et al., ii. U. C. R. 404-. Demurrer and issues in fact to the same cause of action.] — 39. Where there were several counts in a decla- I 26 AMENDMENT. AMENDMENT. ration varying the same cause of action, to which the defendant pleaded distinct pleas, and the plaintill's havinif demur- red to some of the pleas, and replied to the others after judi^menl against them on the demurrers, recovered a verdict j on the other pleas, no defence having been made at the trial — the court lield, that, under the pleadings, the plaintill's' recovery was barred ; but under the circumstances of the case they granted a new trial, and gave the plainlilVs leave to amend. Watson et al. v. Hamil- ton, Easter Term, 5 Vic. III. Op Verdict, Postea and Judgment. See Bond, II. 3. Amendment of verdict by Judge''s 'notes.'] — 1. A verdict taken for the amount of a penalty of a bail bond to the limits, was allowed to be amended by the judge's notes, by reducing it to the sum indorsed on the capias ad satisfaciendum, with interest and the sheriff's fees. Callaghan v. Stro- bridge, Dra. Rep. 167. Amendment of general to special verdict, without costs.] — 2. Where a general verdict has been returned for the plaintiff on several counts, one of which is bad, but it appears the plain- tiff elected to proceed on a good count at the trial, the court will allow the verdict to be amended after motion in arrest of judgment without costs. Gouldrich v. McDougall, ii. O. S. 212. 3. Where the evidence at the trial was applicable to a good count only, and a general verdict was given, the court allowed an amendment witiiout costs, by entering the verdict on the good count after a motion in arrest of judgment. Beasley v. Darling et ux., ii. O. S. 211.. 4. Where a verdict was entered for the plaintiff at Nisi Prius on all the counts of the decloi'ation, when he gave evidence, and was entided to re- cover only upon one, the verdict was ordered to be amended by the judge's notes, and to be entered for the defen- dant on the other coinits. Chadwick V. McPherson, ii. U. C. R. 379. Several counts — General verdict- Some counts bad — Amendment allotO' ed.] — 5. Wiiere the plaintiff has a general verdict u])on a record contain- ing several counts, and the defendant moves to arrest the judgment on the ground that some of the counts are defective, and the plaintiff asks leave on the return of the rule to amend his verdict by confining it to a good count: Held, that if the evidence at the trial apply equally to the good and bad counts, the amendment may be made. Baldwin f/ui tarn v. Henderson, iv. U. C. R.3(J1. 6. When it appears on the notes of tlw3 learned judge at the trial that a verdict should be entered for the plain- tiff on one count, and for the defendant on the other, and a verdict has been erroneously entered for the plaintiff on both counts — this is a mere mistake in the entry on the record, which may be amended by the judge's notes. City Bank v. Ecclcs, v. U. C. R. 633. District Court — Excess of juris- diction — Remission of excess allow- able.] — 7. Simble, that the plaintiff on a verdict in the District Court for a sum exceeding its jurisdiction, may retain his venhct by remitting the ex- cess of jurisdiction. Jordan v. Marry IV. U. C. R. 53. [See next case also, which fully decides the point.] 8. Where a verdict has been given for the plaintiff in a District Court for a sum beyond its jurisdiction, he may cure the defect by entering on the recortl a remittitur for all damages be- yond its jurisdiction. Thomas v. Hil- mer, iv. U. C. R. 527. If evidence be given on several counts, verdict must be entered on all AMENDMENT. APPEAL. 21 ititled to re- verdict was the judge'a r the defen- Chadwick .379. tl verdict — ment allaw- lintilV has a ord contain- e defendant nent on the counts are r asks leave ,o amend his good count : B at the trial [)d and bad lay be made. inderson, iv. the notes of : trial that a for the plain- le defendant ict has been the plaintiff nere mistake which may notes. City R. ()33. ess of juria- xccss allow- le plaintiff on Court for a Jiction, may itting the ex- kn V. Jtfarr, ully decides the s been given ict Court for tion, he may cring on the damages be- homas v. Hil- on several ntered on all n of them.'] — 9. In an action on the case for waste, where the first two counts were for voluntary waste, and the fourth count in trover, the third being for permissive waste by a tenant at will, an application to amend the postea by entering the verdict on fiie 1st, 2nd and 4th counts alone, was refused, evi- dence having been given on the third count. Drummond v. Cnrtkew, Trin. Term, 3 & 4 Vic. When posten amcnd(d)le hy judge'^s notes, find judgment by ^ws^ra.] — 10. The court will amend a postea by the judge's notes, and amend a judgment by the postea, after an (qrpeal alloiced, and reasons of appeal assigned, the verdict having been taken generally for the plaintiffon points reserved, and the postea being framed as if the gene- ral issue only had been pleaded,with- out noticing several other speci.nl pleas of the Statute of Fra ud s . Rochleuu v . Bidwell, ii. 0. S. 319. Assessment of damages to a greater amount than declaration warrants. — Reduction nlloived on payment of costs.\ — 11. Wherein debt the plain- tiff had assessed damages to a greater amount than the declaration warranted, and had entered judgment for that amount, as if the form of action had been assumpsit, and issued executions some in debt and some in assumpsit, an amendment was allowed by redu- cing the damages &c., on payment of costs. Averill v. Potvell, Mich. Term, 2 Vic. Judgment roll mnended by addition of costs.] — 12. The court allowed a judgment roll to be amended by adding the costs. Wright v. Landell, Tay. U. C. R.416. Judgment against administrator — Intestate's name amended.] — 13. In a judgment on a scire facias against an administrator, an amendment was al- lowed in the name of the intestate, by making it correspond with the name in the original judgment against him. Willard v. Woolcot, Dra. Rep. 211. Debt on bond — Vei-dict in debt on sim])le vontract — Judgment in as- stimjmt. — Cn. sa. in debt — Amend- ment, allmred, tcith cosf *.]— 1 i.W here, in debt on bond and breaches assign- ed in the declaration, the plaintiff en- tered his verdict as if the action had l)een debt on simple contract, and entered judgment in assumpsit, and issued a capias ad satisfaciendum in debt, on which defendant was arrested : the court set aside the ca. sa. with costs, and allowed the plaintiffto amend on payment of costs. Edison v. Hog- adone, Mich. Term, 3 Vic. IV. Of Other Proceedings. See Bail, III. 3. — Conviction, 3. — Costs, IV(]), 7, 11. — Demurrer, 6— Ejectment, II. 7, 8 ; IV(1), 6,7. — Indorsement, I. 6. — Prac- tice, II. 24; III. 2.— Venue, 3. APOTHECARY. See Libel and Slander, 111(2), 5. APPEAL. See Bills of Exchange etc. ,V. 1*>. Boundary Line Commission- ers, 1. — Judge (in chambers), 3. Limits, 1. 6. — Magistrates, 4. Proceedings tinder Petty Trespass Act. — Jl2ypeal to Quarter Sessions, and from Quarter Sessions to Queen's Bench.] — 1. Where a person con- victed under the Petty I'respass Act had appealed to the Quarts Sessions, where the conviction was confirmed, no appeal lies from thence to the Queen's Bench, liegina v. Impey, Hil. Term, 4 Vic. From District Court to Queen's Bench, in a trifling matter.] — 2. The court in banc, will not overrule the opinion of the judge and jury in a district court, on the question of weight of evidence in a trifling matter, espe- 88 APPEARANCE. APPEARANCE. daily when a new trial could not be granted without paying costs. Fowler V. McDonald, iii. U. C. R. 385. Ajypml from District Court on points of 2]rnctice.'] — 3. The court will not sustain an appeal from the court below upon the (juestion, whether the plaintiff or the defendant was enti- tled first to address the jury . Hastings V. Earnest, vii. U. C. R. 520. Appeal — Spericcl points of Demur- rer."]— -4>. Semhle, that upon appeals to this court from the district courts on points of special demurrer, it does not follow that effect will he given to all objections which would be allowed to prevail in this court. Outwater v. Dafoe, vi. U. C. R. 25G. Ajjpeal from District Court by lorit of error, not ullowabh.] — 5. Where a district court makes an or- der or pronounces a judgment, from which either party can ai)])cal under the 57th clause of the 8th Vic, ch. 13, that is the method of appeal the party must follow, and not by writ of error. ThoTnas v. Hilmer, iv. U. C. R. 527. 4^5 Vic, ch. 7 — Charge of as- sault before magistrates — Disinis- sal — Ajypeal to Quarter Sessions — Refusal by justices — Mandamus.] — 6. Where a charge of assault was j)re- ferred before two magistrates, under 4 & 5 Vic, ch. 7, who dismissed the complaint, ordering the complainant to pay the costs, and the justices in ses- sions would not entertain an appeal — the court refused to grant a rule for a mandamus to the juslices in sessions to hear the appeal, on the ground that the statute coiftemplates an appeal only in cases of convictions. Justices of Brock District, In re., Mich. Term, 6 Vic. APPEARANCE. 5'cc Foreign Judgment, 12. — Inter- locutory Judgment, 8. — Inter- pleader, 2. — Irregularity, 2, 6, 10. — Judgment, 4. — Testatum Act, 2. Service of declaration c : attorney, who had not appeared — Costs.^—1, Where a declaration had been served on an attorney, who had not appeared, and no appearance was entered for the defendant at all, but the attorney did not deny that he was acting for the de- fendant, and the plaintiff ailerwards signed interlocutory judgment — the court set aside the proceedings without costs, but stated that they would, on application, make the attorney pay them. Dobie v. McFarlane, ii. 0. S. 285. Ajipearance per Stat. — Time to file.] — 2. Appearance according to the statute by the plaintiff for the de- fendant must be tiled as of the term the writ is returnable, and cannot be entered later tlian the end of the va. cation of the term after. Forrester v. Graham, ii. 0. S. 369. [See Conduy v. Moffat, infra, 10.] Appearance paper mislaid.] — 3. Where defendant appeared by attor- ney, but the appearance paper was mislaid in the crown office, and the plaintiff entered an appearance accord- ing to the statute, and served a declara- tion on the defendant and proceeded to final judgment, the proceedings were set aside lor irregularity. Ryan et al, v. Leonard, iii. O. S. 307, [See also 7, infra.] Interlocutory judgment — .N'o ap- jyearance entered.] — 4. Where no ap- pearance had been entered, an interlo- cutorj- judgment was set aside after a year, the proceedings being void. Lane V. McDowell, Hil. Term, 7 Wm. IV. [Also, case 6, infra. Roberts v. Spurr, 3 Dowl. 551 ; Watson v. 7)om), Id. 584. The case of IVilliam v. Strahan, 1 N. R. 309, would seem to be no longer law.] JVo appearance, as a ground for set- ting aside interlocutory judgment.] — 5. A defendant who has pleaded a plea which is a nullity, cannot object, as a groimd for setting aside an inter- locutory judgment signed after such plea, that there is no appearance APPORTIONMXNT OF RENT. APPROPRIATION OF PATMKNT9. 29 7 : attorney f Costs."] — 1. been served )t appeared, tered for the attorney did g for the de- ' afterwards 'ment — the ings without y would, on Itorney pay me, ii. 0. S. . — Time to tccording to for the de- af the term d cannot be I of the va« Forrester y. ,10.] islnid.] — 3. ed by attor- paper was ce, and the ince accord- d a declara- )roceeded to edings were Ryan et al. t — J^o ap- liere no ap- , an interlo- iside after a void. Lane 7 Wm. IV. !» V. Spurr, 3 [d. 584. The N.R. 309, ^] mud far set- dgment."] — pleaded a nnot object) le an inter- aller such appearance entered. Brewster v. Davy, Hll. Term, 2 Vic. [See Irregularity, 10.] Proceedings void, if no appearance entered.] — 6. If there be no appear- ance entered for the defendant, pro- ceedings are void, and not merely irregular. Nichol v. McKelvey, Easter Term, 2 Vic. Irregularity — Time for objection.'] —7. When the defcnilaiit appeared by attorney, but the plaintill" having overlooked it entered an appearance for him according to the statute, and served the declaration on himself per- sonally: //eW, that after judgment by default, and notice of assessment served on him, he was too late to object to the irregularity. Kctchum et al. v. Keefer, Mich. Term. 3 Vic. After appearance per stat., wheti plaintiff bound to notice defen- dant's attorney.] — 8. When the plaintift* enters an ap])carance for the defendant according to the statute, he is not bound to take notice of any at- torney for the defendant unless he plead. Gourlay v. McLean, Hil. Term, 3 Vic. Appearance per stat. entered, with- out affidavit of service of icrit.] — 9. whore the plaintill" entered an ap- pearance for the defendant without filing any atlidavit of the service of the writ, the appearance was set aside for irregularity. Courtney v. Bigeloiv et al, Hil. Term. 5 Vic, P. C, McLean, J. [See waiver of such irrejnilarity — Waiver, 3.] Time for filing appearance per Stat.] — 10. Appearance by the plain- tiff for the defendant under the statute, must be filed before the end of the suc- ceeding term, after process is rcturn- I able. Conday v. Moffatt, v. U. C. B. 4.50. APPRAISEMENT. See Distress, II. 5. ♦ APPORTIONMENT OF RENT. See Covenant, II (1), 6.— -Rent. APPRENTICE. See Magistrates, 9. 5 Eliz., ch. 4.] — 1. An indenture of apprenticeship is not void, but void- able when contrary to the provisions of 5 Eliz., ch. 4: and Semble, that statute is not in force in this province. Fisk v. Doyle, Dra. Rep. 340. Form of action against father. 1 — 2. Articles of apprenticeship for less tlian seven years are not void under 5 Eliz., ch. 4, but voidable ; and where a father and his son, a minor, entered into articles for the son's appreptice- ship, and the son after remaining some time with his master, returned home by his father's orders, and refused to complete his apprenticeship ; Held, that covenant against the father on the articles, and not case for enticing away, was the proper remedy. Dellingham V. Wilson, Easter Term, 3 Vic. Covenant against father -— Breaches — Plea — Leave and li- cense — Sufficiency of plea."] — 3. The plaintiff, in an action of covenant against the father of an apprentice, al- leges as a breach that the apprentice unlawfully absented himself on a cer- tain day, and from thence hitherto re- mained and continued absent from the service of the plamtiff. Plea, that the apjirentice did depart and absent himself from the service of the plaintiff, by his leave and license : Held suffi- cient, without pleading a license to contimie absent, as the plea only pro- fessed to answer the absenting himself from the plaintiff's service. Held also, that the plea need not shew that the license to be absent was give.; by deed or in writing. Blackv. Steven- son, iii. U. C. R. 160. f APPROPRIATION OF PAY- MENTS. •See Payment, 1, 4/, 9. 30 ARBITRATION AND AWARD. ARRITRATION AND AWARD. ARBITRATION AND AWARD. I. Reference and Bond of Sub- mission. II. Enlargement of Time for Making Award. III. Arbitrators, (1), Power of. (2), Exccsa of Avthnrity, Mis- take, or 'Misconduct of. IV. Award, (1), Finality and Certainty. (2), Repusrnancy or Mistcd-c m fnken in a cniise at Nisi Priiis subject to a rorcronco, and tlie rule ofrcfcrcnce was nttfi'wimls madi' a rule of rourt, and contaiiR'd the usual clause against lllinK any Itili in o(|uity, and the de- fendant, aiiain' ' whom tlie award was made, ditl not make any motion in the conit in the ])roper time, but filed hia bill in 0(|nily, tor wliicli the court iiranted attiichments ni.'ainst iiim and his solicitor, upon which attachments writs of habeas corjjus were subse- (juently issued: the court refused to entertain a motion to set aside those writs, or suspend proceedinu>'ty there- to,'\ — 8. A. ia substantially interested and award generally V. Setting aside Award, Judg- ment OR Verdict thereon. Vi. Enforcing Award, (1), By Attachment. (2), By Action — Pleadings and Evidence therein. VII. Costs. VIII. Miscellaneous Matters. I. Reference and Bond of Sub- mission. Sec div. 111(1), 3. — Executor etc., III. 9.— Sheriff, IV. 4. When and by whom reference mai/ be revoked.'\ — 1. A roforence to arbi- tration by order of Nisi Prius, may be revoked by either ))artv before award made. Burrill v. Milts, 1 & 2 Wm. IV. Attachment — Brcaeh of condition of reference.'] — 2. The court will order an attachment to issue against a party who files a l)ill in ccjuity, contra- ry to his undertaking in a rule of refer- ence, and in disregard of a rule of court made thereon. Manners v. Clarke. i. U. C.R. 191. Application to set aside writs of habeas corpus after attachitient, re- fused."] — 3. Where a verdict was H HWARD. ARBITRATION AND AWARD. ARBITRATION AND AWARD. Si Prius subject ? of reference rule (tf rourt, :ltuisc ngainst and the de- le award was motion in the , hut fded his ■h tlie court linst him and I attaciuuents were subse- rt refused to t aoide those eedinjrs upon Idock et al., i. rule oj court.'] rties executed ) refer to arbi- i contained no nission a rule e(i»cnt instru- rwards, such a I: Held, that [ not be made the statute. ii. U. C. R. rule making rule of co'irt, imething more ■oni the state- iflidavits filed. U. C. R. 636. by one of ttoo two partners ation bond in vitbout the an- other partner, lartncr. Baby R. M. md uife."] — 7. an arbitration ell as the hus- 1. McGill V. 40. ry a person in- a party there- ially interested in a lease ; B. becomes security for A.'s perfdiinance of the covenants ; D.and A. refer disputes coiiiu'cted with the lease to arbitration : IL/d, that it is no objection on the part of B. to tlio bond of submission, that B. is not a party thereto. Jb. Submission l/uit nirard .shall be delivered on certain day — Iloir pir- forvicd.^ — }). Where tlie sul)missi()ii is that the award shall be delitvred by a certain day, if it be ready for delivery by that day, it is siitlicient. Gulbraith v. W(dkcr, Easter Term, 'Z Vic. Submission by Governor, under 9 Vic.,ch. 37 ; .'ud 10 ijj- 1 1 JVr., ch. '21.] — 10. Under the statutes 9 Vic. di. 37, sec. 2i, and 10 &. 11 Vic. ch. 24, sec. 3, a submission by the ifovernor in council to arl)itration is, in elVect, a Huhmission by the commissioner of public works. Commissioners of Public Works v. Daly et al,, vi. U. C. R. 33. II. Enlargkment of Time for Making Awakd. See div. IV(1), 4. Affreement, cnlarginjj; time — Rule of Court,] — 1. If a hondofsuljuiission contain a clause that the submission shall be made a rule of court, it is not necessary that an a;;reemciit enlarging; the time should be made a rule of court as well as the submission. Crooks V. Chisholm etui., iv. 0. S. 121. Enlargement of time under paivl submission — Enforcing award.] — 2. Submission by bond, with a day hmited to make an award, on which day the arbitrators, being then prepared with their award, but all parties believing the time limited would not expire until the following day, deferred tlie publi- cation then at the request of the de- fendant, and heard further evidence on both sides on the following day, and then made their award: Held, that the extension of the time was a parol submission, and that assumpsit was maintainable thereon for not performing the award, although no action could be broiiirht on the bond. Hall v. Al- it'iiy, Hil. Term, (i VVm. IV. By rule and cofiscnt.] — 3. Where a verdict was taken subject to a refer- ence, and before tiie time limited for making the award expired it was en- larged by rule, and afterwards, by consent, aiiain enlarged to a further time : Held, that the award was good under the last submission, although it would have been inv.ilid if made under the rule, and the enlargement by con- sent might have been made a rule of court, as being part of the original reference. Charles v. Hiekson, Trin. Term, 3 & 4 Vic. P. C. Macaulay, J. Must be specified in rule of court on submission.] — -t. If the time for making an award has been enlarged by the arbitrators, such enlargement must be specitied in the rule of court on the submission, on an application to set aside the award. Thirkell et al. In re. ii. U. C. R. 173. Power of Court to enlarge Time, although no power given to Arbitra- tors.] — 5. Where no power has been given by the rule of reference to en- large the time for making an award, the court have, notwithstanding, under our statute, power to enlarge, in the exercise of their discretion, upon the alVidavit an I papers filed. Jones et al. V. Russel, v. U. C. R. 303. When rzile for, issues as of term generally, it relates back to first day thereof.] — 6. Where a rule issued as of Easter Term generally, to enlarge the time for making an award until the last day of the term : Held, the rule related back to the first day of term, and must be taken to extend the time mentioned in the original sub- mission, and to operate as an admis- sion that the time had not then ex- ]iired. Hawkev.Duggan,v. U. C. R. 636. 33 ARBITRATION AND AWARD. ARBITRATION AND AWARD. Necessity of making enlargement a rule ofcourtJ] — 7. Where the time for making an award lias been enlarged, the enlargement, as well as the origi- nal submission, must be made a rule of court. Masecar v. Chambers et al., iv. U. C. R. 171. Assent of both parties reguisiteJ] — 8. Where a cause was referred l)y a rule of reference at Nisi Prius, and iK^ rule of reference and an enlargement of the time for making the award, (which enlargement did not appear upon the face of it to have been as- sented to by both parties), were made rules of court — the court, upon an ap- plication for the non-performance of the award, refused the attachment, upon the ground that the enlargement of the time was not shewn to liave received the mutual consent of both parties. Ruthven v. Ruthven, v. U. C. R. 273. Setting aside enlargement of time indorsed on rule — Consent of2)arties to enlargement. "l — 9. Where a cause was referred at Nisi Prius, and the rule of reference was made a rule of court, together with an enlargement of the time for making the award, which had been indorsed on the rule of reference ; but there being no authority contained in '■^•' rule of reference to enlarge the tim ; Jind Such enlargement not having been assented to in icriting by both parties : Held, upon an a{)pli('ation to set aside the rule, making the onler of reference and the enlargement of time thereon indorsed a rule of court, and also the award founded upon such reference and indorsement, that — 1st. The rule, so far as it made the rule of Nisi Prius a rule of court, could not be set aside. 2ndly. That that part of it making the enlargement of the time indorsed oa the rule a rule of court, might be set aside. 3rdly. As in strictness both parties must be taken verbally to have assented to the en- largement of the time to the 23 rd of November, when the award was made, the award could not be set aside. /5., V. U. C. R. 276. When award may be made.l— 10. An awn id may be made before the time to which the arbitrators had made an en- largement. Tracey v. Hodgest, vii. U. C. R. 5. (0 III. AUBITRATORS, Power of. Excess of Authority, Mistake or Misconduct of. (I), Pou)cr of. Rcspccti}ig testimony nfcrcd.'] — 1. Arbitrators refusing to give time to produce testimony, will not be allowed to support their award by shewing that such lostimony could have been of no service. Bull v. Bull, In re., vi. U. C. R. 357. To cancel partnership agreement, and aicard prospective damages.'\ — 2. As to the power of arbitrators, under a very general submission, to cancel an existiiiir i)artnershi|) agree- ment, and awiud |)rosj)ective damages to the partner losing by such cancel, lation. Set' Crouse v. Parke, vi. U.C. R. m-2. Legal intendment as to pmcer.']- - 3. Where the submission, with respect to some of the points to be settled, ex- pressly states that the majority of Uie arbitrators shall have power to make an award, it will be intended by the court that this power, though not re- peateu throuuhout the submission, ex- tends to all the matters in reference upon which the arbitrators cannot acree. Thirkell v. Strachan, iv. U. C. R. 13G. BTay direct notes to he given for sum atearded,'] — +. Arbitrators may order that promissory notes be given in satisfaction of the sum awarded. lb. On rcferencG from .IVisi Prius, may consider matters that could not be WARD. aside. lb., '.]-10. An ; the time to Tiade an en- odgest, vii. Mistake or ffercd."] — 1. ive time to L be allowed shewing that ^ been of no n re., vi. U, afrrccmcnt, daiudsres.^ arbitrators, )inistiion, to ishij) agree- ive damages iicli cancel. rAc, vi. U.C. ) poiccr.Y - with respect settled, ex- jority of the ter to make iided by the ugh not re- mission, ex- n reference tors cannot :han, iv. U. e (riven for trafors may les be given warded. lb. i Prius, may ould not be ARBITRATION AND AWARD. raisedat trial,'] — 5. Sembl-, that upon a general reference at Nisi Prius, the arbitrators may, in making up their award as to the amount of the verdict, be governed upon tiieir finding by mat- ters in favor of defendant, which could not have been l)rought in (jnestion on a trial of the action. Also, that where the verdict is intended to be a final settlement between the pa-ties, ♦he arbitrators may take into consideration matters not ombracod within tiie tech- nical statement of the causes of action on the record, when advanced on the part of 1 be plainlilV. Watson w. To- ronto Gas Company, v. U. C. R. 523. Power to award consequential dam- ages under 9 Vic. ch. 37, and 10 Cy 11 Vic. ch, 24.] — 6. Qiucrc: Have arbitrators the jiower, under 9 Vic. ch. 37, and 10 & 1 1 Vic. ch. 24, to award consequential damages, as lor the loss of thc^carrying trade through the village of Milles Roches ? Commissioners of Public Works v. Daly, vi. U. C. R. 33. [No opinion of the court was rendered ne- cessary upon this point, but see the opinion ol' the court thereupon.] (2), Excess of Authority, Mistake or Misconduct oj. Sec div. VII. 3. Verdict, subject to reduction by ar- bitrators — Costs.'] — 1 . W here a ver- dict was taken for 200/., subject to be reduced by arbitrators, the costs to abide the event, and the a'vard was for the defendant, it was set aside as being beyond the submission — t.ic ar. b'trators beingemployed only to reduce theplaintilf's verdict, and the conditiqn as to costs giving no authority by in. ference to deprive the piaintilV of them altogether, but applying only to the amount of costs to be eventually taxed. Shaiv V. Turton, iv. O. S. 100. Awardinif costs ivhen iu)t empow- ered to do so under submis\non.] — 2. Where arbitrators awarded that costs ARBITRATION AND AWARD. 33 (over which the submission gave tUem no power) should be paid, and their amount could not be separated from the sum awarded, the award was set aside. Watsoti v. Black, Hil. Term, 4. Vic. Examination of one of parties ea oat A, not beinsr authorised to do so,] — 3. The award will be set aside, if ar- bitrators examine one of the parties upon oath, they not having been autho- rised to do so by submission. Stocking V. Croaks, Tay. U. C. R. 677. Ut?fair conduct in hearing evi- dence.] — 4. An award was set aside on account of unfair conduct of the arbi- trators in the manner of hearing the evidence. Hamilton v. Wilson, iv. O. S. 16. Jlivard by two arbitrators, third dissenting, in the absence of one of the 2>iirties.] — t>. Where, on a refer- ence by A. and B., A.'s agent attended on his behalf, and after B. had given evidence to the amount of 200/., re- tired, understanding from the arbitra- tors that the case was closed; and H., in his absence, induced two of the arbitrators to award him 1000/., the third refusing to consent — the award was set aside on the payment of costs. Van Egmond et al, v. Jones, iv. O. 5. 119. Jlward not set aside, although ar- bitrators had mistiLken the laic] — 6. Where all matters in difl'erence inlaw and ecpiity have been referred, and the award is legal on the face of it, it will not be set a.side although it may seem that the arbitrators have mistaken the law, and the amount awarded is large ; and the court will refer to pa- pers delivered by the arbitrators simul- taneously with the award, and intend- ed to be explai\atory of it, as a part of the award itself. Hall v. Fergusson et al, Hil. Term, 6 Wm. IV. Misconduct of arbitrators — Award set aside,] — 7. Where on a reference to arbiti-ation, ader the arbitrators had ■ ^1 34 ARBITRATION AND AWARD. ARBITRATION AND AWARD. coipmenced their invesligatio;i, both | the plaiiitifl" and his attorney rcciucsted delay, and understood that it iiad been ; granted, but tlie arbitrators made their award in favor of the defendant with- 1 out giving furtiier time, and without i hearing all the testimony that tiie plain- j tifl'miglit have ort'ered — the award was set aside with costs. Grisdalc v. Botd- ton, i. U. C. R. 'i07. Refttsal to examiiie ivitnesses.'] — 8. Where one of the parties to a reference requires the arbitrators to examine witnesses, which they refuse to do, the award will be set aside, although it be shewn that before the submis- sion was signed the arbitrator inf . m- ed the parties tliat they would not allow either of them, or their attornies or agents, to be present at their investi- gations. McMullen et al., In re., u. U. C. R. 175. Dissolving partnership — ^iicard- intr on disputes arisen subsequent to submission.] — 9. Where arbitrators, being authorised to do so, dissolve a partnership, and in order to adjust the terms of the dissolution, award upon disputes that have arisen with respect to the partnership siil)sequiMit to the date of the submission : Held, that the award did not on that ground exceed the submission. Tliirkcll v. Strachan, iv. U. C. R. 136. IV. Award, (1), Finaliti/ and Certainty of. (2), Rcpufrnanci/ or Mistake in. (3), Other Mutters Relating to. (1), Finality and Certainty of. Ordering party to pay all costs of mits final, u'itlumt stating that suits slioutd cease.] — 1. Where certain matters in dilTerence between A. and B. were referred to arbitration, and also all costs of suits commenced or prosecuted by either party, whether civil or criminal, and the arbitrators awarded that B. sliould pay a large sum to A., and also all costs of suits : Held, that the award was sufliciently tinal, without stating that the suits siiould cease, and that it could not be impeached, because damages had not been estimated by the arbitrators on some matters into which they should have inquired. Dticxit v. Green, iv. O. S. 110. Joi7it suhmi/tsion by several parties — Award final, ivttliout stating the amount each is to receive.] — 2. Where several parties make a joint submis- sion of their claims, the award is final, though it does not distinguish the por- tion of monev each one is to receive. McGill v. Proudfmt, iv. U. C. R. 40. Disposul of verdict Sfc] — 3. Where a verdict is taken for 1*. damages in a cause, subject to an award, and the arbitrators in their award do not in any manner dispose of the verdict or cause: Held, the award not final, and bad. Bcatty v. Mcintosh et al., iv. U. C. R. 2r)9. Certain statements in award suf- ficiently ccrfciifi.] — 4-. Uiulcr the award and declaration, as given in the statement of this case, — the court held, that the amount of r)00/. awarded to be paid by (piarterly instalments, was stated with suflicient certainty ; and also, that tiie thirty days' default in the payment of the 12;V. falling due on the 10th of August, by which the plaintiir became entitled to claim the sum of 37:')/., was suHiciently shewn in the plainfilF's declaration : also, that the appointment of the third arbitrator, and the extension of the time for ma- king the award under the hands of the arbitrators without their seals, were valid acts accor'ingto the submission. Watson V. Suthei land et al., i. U. C. R. 229. Several issties — Bisjiosal thereof. "^ — :>. Where in an action of assump- sit the defendant pleaded the general WARD. ARBITRATION AND AWARD. ARBITRATION AND AWARD. 35 arbitrators ay a large ts of suits : suHiciently the suits )uld not be es had not itrators on hey should Green, iv. ral partiei iating the -2. Where iiit submis- ard is final, sh the por- to receive. [. C. R. 40. -3. Where damages in ird, and the I do not in e verdict or ot final, and h et al., iv. mvard sitf- Uiuler the given in the e court held, awarded to ments, was tainty ; and fault in the ling due on which the claim the ently shewn also, that rd arhitrator, time for ma- hands of the seals, were ; submission. al., i. U. C. sal thereof.'] \ of assump- 1 the general issue and a set off, and a verdict was afterwards taken for the plaintiff, sub- ject to a reference to arbitration, with leave to the arbitrators to enter a ver- dict for the defendant ; and the arbi- trators awarded, " that at the time of the commencement of the action, or at any time afterwards, the plaintiff had not any cause of action whatever against the defendant," and directed a verdict to be entered for the defen- dant for 20/. 10s. 1^/. : Held, on molion to set aside the award, that both the issues were sufficiently disposed of. Townsend v. Morton, ii. U. C. R. 100. 6. Where a cause was referred to arbitration at Nisi Prius, under a rule of reference containing these words: " That the costs of the said cause shall be disposed of as follows — the costs on demurrer to be subject to the judgment of the court on the issues in law, upon which the arbitrators are to assess the damages sustained by the plaintiff, and the costs on the issues in fact, and the costs on the saiii reference shall be, in the discretion of the said arbitrators, &c. ;■' and the award said nothing respecting the issues in law, and no damages were assessed thereuj)on : Held, that under this submission, the award was good. Ma.sccar v. Cham- bers et al,, iii. U. C. R. 186. 7. Where a cause, in which there are several issues joined, is referred to arbitration with costs to abide the event, and the arbitrators award a cer- tain sum to tiic plaintiff, without say- ing anything about the issucF, which are not necessarily from their nature determined by the award in favor ol the plaintiff, the award cannot be sup- ported. Bernard V. Strachan, ii. U. C. R. 128. [The Court of F,xcho(]iipr came to Ihr same decision in Rourke v. Lloyd, x. M. & W. 550.] Reference of a cause and all past and future demand f. — Jhvard not dis- tinguishing sum allowed in tlie cause from that alloved for the other mat- ters.'] — 8. The plaintiff sued the de- fendants in case for certain injuries, specifically set forth in the declaration as his cause of action. At the assizes the cause was referred to arbitration, and a verdict taken for the plaintiff for 1000/., subject to be increased or di- minished by the award. By the terms of the reference, the arbitrators had power " to take into consideration the various offers made by the defendants, and finally to settle and dispose of all the matters in difference, awarding as they should think fit, the payment of an entire sum in full satisfaction of all past and future demands, &c." Upon this submission the arbitrators declared, that having taken into consideration tiie matters and things which they were empowered by the submission to take into consideration, they awarded that the verdict for the plaintiff be in- creased to 1287/. 10s., with costs to 4()/. 10s., and they concluded the award thus : " And the said sums so to be paid as aforesaid, &c., we do award, order, and determine to be, and the same are for all purposes to be taken in full satisfaction of all past and future demands of the plaintiff against the said defendants, for or in respect of the subject matter, or suliject mat- ters of the said cause, and all and every part thereof." The defendants moved to set aside the award upon the following groimds : — 1st. Because the arbitrators, after hearing evidence (as stated in affidavits filed) of other inju- ries than those mentioned in the decla- ration, did not make their award "of all matters in dilference," as submitted by the reference, but confined it to the subject matter is^iing out of the cause of action in tiiis suit. 2ndly. Because they did not distinguish in their award the sum allowed in the cause, from the sum allowed for the otl^er matters in ilifferencc : Held, award good under the submission. Watson v. Toronto Gas Company, v. U. C. R. 523. 36 ARBITRATION AND AWARD. ARBITRATION AND AWARD. Award eocceedin • ^int tres- passers, is in itself : a ., .v i.-.'iier paid or not, and has the same elUxt as a satisfaction by hin; vovld have had, in precluding any action r._ nsll ■ trespasser ; it is therefore uiineceasary in the plea to an action of trespass, set- ting out the award of the daninaics, to aver that the sum awarded has been paid. It would be ditVerent, however, in pleading; an award to an action of debt, in which two are jointly bound : there, unless payment of the award bo averred, it is no bar. Adams v. Ham, V. U. C. R. 292. Award resjiecting real property, an estoppel -to parties concerned] — 9. A plaintiff in ejectment, who, before ac- tion, has submitted the (piestion of tlie possession of the premises to arbitra- tion, is estopped by an award in favor ofthe defendant. Doe dcm. Galbraith V. Walker, Easter Term, 2 Vic. V. Setting aside Award, Judg- ment, OR Verdict theheon. See divs. II. 4, 9 ; III (2), passim ; IV(2),3,4,supra; VI(1), 7; VII. 3 ; VIII. 7 infra. General principle.'] — 1. The court will not intend matter for the purpose of setting aside an award ; such matter must be shewn alfirmativoly. Trarvy V. Hodgest, vii. U. C. R. .'). Setting aside awardyivhen original not produced.] — 2. Where on an ap- plication to set aside an award, it was sworn that the original was in the pos- session of tlie plaintiff's attorney, who refused to give it up — a rule nisi was granted, which was afterwards made al)solutc, on the ])ro(luction and veri- fication oftlie copy ofthe award served. Stven V. Glass, JMicli. Term, 1 Vic. .Xotice to 'produce evidence — In- suljlciency of time.]—\\. On a relcr- ence to arbitration, after the arbitrators and imipire had heard the plaintiff's witnesses, the defendants refused to give tiieir evidence, and the arbitrators appointed by them would not concur in the award. The umpire, in conse- quence, gave notice to the defendants to produce their w itnesses, but the time which he gave for their production was so short tiiat the defendants could not bring them before him, and he made his award on •the evidence which he had already heard. The court held, that the notice to tlie defendants did not give them sulficient time, and therefore set the award aside. Pnmdfoot v. Trotter et uL, Trin. Term, 4 & b Vic. Form, of rule to set aside airard.]— •i. The court discharged a rule lor set- ting aside an award — lirst, because it was not stated that the rule was drawn up on ^'reading the aicard;''^ and secondly, because the alleged defects in the award were not sulliciently pointed out. Grand Riirr JVuiu'ga- tion Comjxmif v. McDougall et al., i. U. C. R. 25.'). [See 13 and 14, infra.] jMisciirriagc of notice.] — f). Where the plainliiVs attorney had attended a meeting of arbitrators, and lliey made their award — the court refused to set aside the same upon the ground that the plaiiitilV had not attended to give his evidence airreeal)ly to the ])rovision in the rule of reference, from the mis- carriage of a notici! sent to him by his altorney for thai jinrpose, and although the decision ofthe arbitrators proceed- ed princi|)aliy u|)on the evidence of the (leliMidanl. RVDougal v. Camp, Tay. U. C. R. 108. \\RD. ARBITRATION AND AWARD. ARBITRATION AND AWARD. 39 ! nisi was ids made and veri- inl served. , 1 Vic. cncf — In- )ii a reibr- nrbitrators j)laintifl''s refused to arbitrators t concur in in conse- Jefendants uttlie time luction was s could not 1 he made ; which he court licld, ants did not id therefore ■oiii/Jhnt V. 4 & 5 Vic. mrard.^ — ule for set- l)ecause it was (hawn W;" and lied defects sulVieiently 7" iVc/tj/lfff- !^all et al.y f). Where attended a they made fused to set 'round that ded to gwe e jirovision ini the mis- liiM iiy his 1(1 iilthough rs proceed- videncc of I V. Campf V^hen either parti/ unfairly trent- ed."] — 6. Although the court are bound not to set aside an award on the merits, yet they will interlere when they see that either party has not had an oppor- tunity of explaining or examininL^ into the whole matter submitted. Umall V. Rogers, Hil. Term. 4 \'ic. Motion.'] — 7. Whenever a certain fact is relied on to .^et aside an award, that fact must be distinctly sworn to. and if denied, the denial is conclusive. Slack V. JMcEat/iran, iii. U. C. R. ISL Setfhitr aside, 0)1 ajjidavil of mi r its. '\ — 8. The court will not set aside an award upon an allidavil of merits, ex- cept upon mariit'estly clear antl stron;: grounds. Scobcll v, Gilmour, v. U. C. R. 48. Statute 9 Vic. ch. 37, and 10 S^- 1 1 Vic. ch. 24..]— 9. Tiie time given by the statute within which to move to set aside awards under these acts — viz., one year — extends to Upper as well as Lower Canada. Commission- ers of Pii/i/ic Works V. Da/// ct ciL, vi. U. C. R. 33. When court iciU vnt interfere to set. asideatcard] — 10. AVhere there is no provision in an order of reference at Nisi Prius to make it a rule of court — the court will not set aside the award. Cummiii!' v. Alien, Tay. U. C. R. 3G9. Arbitrators not icishinsr award to be delivered till costs of it be paid.'] — 1 1 . The court refused to set aside an award on the ground that the arbitrators had desired it not to be delivered until the costs for making it were paid, Gee v. Attwood, Tay. U. C. R. 1.50. Refusal to set aside jiidrrmcnt on award, two termth, (the day when the award was to be made), the replication was held good. Baker V. Booth, ii. O. S. 373. Siijicienci/ of breach in a declaration on an aivard] — 4. A breach in a declaration for the payment of money on or before a certain day, that the money was not piiid on thai day, is sufficient on general demurrer, and it is not necessary to aver notice of an award. Turner v. AUmnj, Hil. Term, 6 Wm. IV. Debt on bond — Conrlmion of plea setting forth legal grounds of objec- tion — Assignment of two breaches in replication.] — f). In debt on bond, conditioned to perlbrm an award, a plea, settinir forth nu're lesral (rrounds of objection and concludin^f to the coun- try, is bad ; and if there be two sepa- rate parts in the award, matter which only answers one part cannot be pleaded in bar of both ; and if two breaches be assigned in the replica- tion, it will be sufficient on general denuirrer if one only be supported. Bm/det al. v. Durnnd, Easter Term, 6 Wm. IV. Declaration averring avnrd made on day appointed— Pleit, no award — Replication varying Jrom declaration as to time] — b. Where to a declaration in debt on a submission bond, with an averment that the award was made on the day appointed, the defendant pleaded " no award," and the plaintiff I replied an award within the time — to wit, on a diu' and year different from .the year slated in the declaration — the I rei)lication was held suffu'lenton gen- eral, though it would have been bad : on special demurrer. Judge v. Judge Mich. Term, 2 Vic. ! Declaration by Kingston Bank \ Commissionci s, under 10 Geo. IV. ch. 7, on an award — Instrf/icienci/ of ; breach."]-!. Where in debt on an award j made in liivor of the Kingston Bank Commissioners, under the JO Geo. IV. ch. 7. the plaiiuills in their declaration set out an award that the defendant should pay 900/. in bills or notes o( the bank, or bank certificates, or orders for stock by a certain day; and assigned I as a breach that the defendant had not , paid in the terms of the award, but did not negative payment in money: the declaration was held bad on general demurrer. Kingston Bank Commis. sioners v. Dalton, Easter Term, 3 Vic. Husband and wife — Alimony — Pleadings.] — 8. Where in an action on a bond for the performance of an award, a count set out the intention of the plaintiff's daughter and her hus- band, the defendant, to live separate; that it was submitted to arbitrators to settle the amount of an allowance to be paid to her in lieu of alimony, &c.. u])on the plaintilV entering into such security as should be deemed proper to indemnify her husband, &c., and the plaintiff should, when the award was made known, enter into such security; that the condition of the bond was to pay the defendant's wife what should be awarded, upon the plaintiff entering into such security, assigning for breach that the award had fixed the amount at ^01., payable quarterly thenceforward, commencing from the day of her departure from her husband (a day in point of fact ante- cedent to the submission), averring that the plaintiff did afterwards, by his I 42 ARBITRATION AND AWARD. deed, &c., covenant to indemnify, &c ; that altliouiih the phiintitr allerwnrds tendered tiie said covenant, and ex- hibited the bond and award (witiiout any profert of the covenant), and de- manded the «um — to wit, 6*2/. 10.v. — being one year and one quarter from 6th September 1822, being the day of the separation, &e., due on the award —refusal of payment — the count was held good upon special demurrer, ob- jecting to ii as inconclusive, having a retrospect not warranted, and wanting profert of the covenant. A second count, omitting the state- ment of notice of the award and a re- quest to pay, also held good. A tliird count, assigning for breach that the plaintiff ottered to enter into any security that might be deemed proper to indemnify, &c., yet that the de- fendant refused to accept avi/lking at all therein (without stating a tender of covenant), also held sufficient, upon the ground that the defendant's refusal to accept ntiything at all discharged the plaintiff from making such tender. Beasley v. Stegman, Tay. U. C. R. 685. Covenant — Plea, that defendant offered security by bond, omitting to make profert.] — 9. Where in co- venant for not performing an award, the plaintiff" set out a submission and the covenant of the parties, that he against whom the award should be made should find security for payment of the sum awarded, and the plaintiff" then averred that an award was made against the defendant, who had neither secured nor paid the money, and the defendant pleaded that he had offered security by bond which the plaintiflT refused, but omitted to make prof"ert of the bond, — the plea was held bad on special demurrer, for the omission. O'Grady v. McDonell, Easter Term, 4 Vic. Proof, upon the plea of non est factum.^ — 10, It seems sufficient in an action upon a bond conditioned lor f.'^ ARBITRATION AND AWARD. tlie [)erformanco of an award upon the plea of lion est factum and siil)sc(|ii»'nt suygL'stion of breaches by the plaintiff, to prove the bond and submission set out upon the record and an award tallying with it ; and if the defeiidanf propose to object to matter apparent upon the face of the record, he should prav over and demur. Lossmg v. Horned,!:-^)-. U. C. R. 2J)1. Proof of nubmixsion.'] — 11. In a - bad. Tinkle )8. ^nsi/ffideticy subnnssion bide by the rs named, or chosen be- that the ar- y award, nor pointed make he condition, d demurrer, iter Term, 7 means no valid xiv. M.&W. Aicard to he made in writing — j Phd, that iirhitrators dii/ not make ' award in writing under their hands,'] — \\'. In debt on a bond condition- j ed to perform tlie awaril of arbitrators •. in writing, a plea tliat they did not make any award in writing under their hmids, was held bad on special de- murrer. Bahy V. Davenport, Hil. Term. 7 Vic. P/.cnding set-off' to action on sub- mission lionil.'] — l;!. A set-o(V of a Slim certain may be pleaded to a de- rlnration in debt on a submission bond assigning as a breach the non-payment of a sum certain awarded to the plain- tirt". Linford v. Musgrove, Hil. Term, 7 Vic. Pleadings — Mistake in name of arbitrator.'] — 16. The effect of a re- ])ii2nancy in a replication, setting out an award to the submission set out on oyer, as regards the name of the arbi- trator. See Tewsleyv. Dunlo])etal,, i. U. C. R. V.iH. Plea of performance, replication denying it only by i)ifere)ice] — 17. Where to debt on an arbitration bond, tlie defeiulant pleaded performance, and the plaintiff replied, setting out tbe award, winch was for payment by the det'endantof a debt due to A. B. by the plaintiff and the defendant as copart- ners, that the plaintiff was forced ami oblisjed to pay the debt due to A. B., but did not shew otherwise than by inference that it had not been paid by the defendant, the replication was held bad on special demurrer. Lymburner V. jYorlon, i. U. C. R. 485. ^^verments, irlien by submission the award is not directed to be made and delirered within a certain time ] IS. Where the submission does not require the award to be made and ready to be delivered within a certain time, it is not necessary to aver that the award was made within a reason- able time ; neither is it necessary to aver notice of the award to the plain- till. Adam^ v. Ham, v. U. C. R. 292. Grounds for nonsuit.] — 19. A va- riance in the names of arbitrators as stated i" the declaration, the agree- ment aim award, is no ground of non- suit. Bentley v. West, iv. U, C. R. 98. Withdrmval of some of the matters submitted-- Submission by parol.]--20. Where in debt on a bond, the plain- tiff declared, reciting a submission by bond, and that under the bond the ar- bitrators had made an award upon one o*'the matters in ditference, the other matters having been by consent of the j)arties withdrawn from their consider- ation, and that afterwards the other matters having been again submitted, the arbitrators made an award in favor of the plaintiff, and the defendant plea- ded " no such submission" and " never indebted," and at the trial the plaintiff proved the parol submission but did not produce the bond, and the point was reserved for the defendant to move upon that objection — the court, on nK)ti(m for a new trial (the verdict being in accordance with the justice of the case), refused to interfere. Baby V. Davenport, iii. U. C. R. 13. VII. Costs. See Costs, 1(1), 5, 6. Costs, hoio recoverable.] 1. Where a cause was referred to arbitration, costs to abide the event, and the arbitrators having made no award the parties agreed to refer the cause to any judge of the district court who should first come to Perth ; and a district court judge having come there, heard the evidence, and awarded that the plain- tiff in that cause had no cause of action, and that judgment should be entered for the defendant: Held, that the award was good, and that the defen- dant might maintain assumpsit for the taxed costs of the cause, and was not obliged to enter judgment. Hale v. Mathison, iii. O. S. 78. 44 ARBITRATION AND AWARD. ARBITRATION AND AWARD. Costs for delay.'] — 2. Wlicre, owintr to the misc'omhict of a party to a icler- encc, arl)iii'att»i',s do not make an award, hut an award ix made hy an imii)ire, costs will not he uranted to the other ])arly on a nummary appli- cation under the clause in the rule ol' reference, " that if either party shall by aHected delay or otherw ise w ilt'uliy prevent the arbilnifors or umpire from making their award, lie shall pay sucii costs to the other as the coiu't shall think reasonable and jiisl."' Proud- foot V. Trottfr et ul.A. U. C. R. .S!)S. Costs on settiiiff ofti'de mcard.] — 3. Where an award is set aside for irresr- ular proceedings on the part of the arbitrators, such as the examination of witnesses in the absence of the parties, it will be set aside without costs. Campell v. Boultan, Mich. Term. 6 Vic. P. C. Jones J. VIII. Miscellaneous Matters. See Costs, IV(1), passim. — Judg- ment, 21, et scHi. — Trespass, II. 32.— Waiver, f). jyotice of time of sitting of arbi- trators.] — 1. Where a cause has l)eeii referred by the court to arbitration, notice of the time of the sittintr of the arbitrators must be irivcn to the attor- ney in the cause. Allan v. Broivn. Tay. U. C. R. 4G0. Time to raise oljjertions to atvard.'] 2. It is too late to obje( t to an award after a lapse of four terms from the publication and an attachment irranled for non-performance. Croohs v. Chis- holm et al., Hil. Term, 5 Wm. IV. [Proper time to move against, see case numbered 5, infra. Jlward made in course of a cause — Stay of proccedtu'T.s.'j — 3. An award made in the course of a cause does not operate as a s ay of proceedings; and if the plaintitV proceed and the de- fendant rely upon the award, he must plead puis darrein continuance. Fido V. Wood, Easter Term, 2 Vic. Court n-ill not i/n/uire into j^rottnds u/> u/iicliairard m knowledge of its hav- ing accrued, an issue tendered as to the fact of such knowledge is material. Lusty v. Van Volkcnbnru;h,\. U. C. R. 2U. Interested tcitness — Effect on aicard.] — 7. W'k^'i arbitrators admit the testimony of a witness who has a distinct interest in the matters in dis- pute, and afterwards award in favor ol'the party in whose behalf the wit- ness was examined, the submission to arbitration containing no consent to the examination of the parties interested, the award will be set aside. Davis v. Birdsall,et al. ii. U. C. R. .i!)9. Calling in umpire — Ado/iting his opinion — Atvard.]— 'S, Where arbitra- ARD. ARMT. ARREST. 45 nee. Fido "ic. 7« trr minds . Tlu; court liroiiniJs on iiiado, I'von it llie arbi- 1 jiidunu'Ut r a suhiiiis- I' it (loos not ive opened I its merits, isler Term, ittst mctird I verdict has elerenee to not, unless I'nnistances, vcd against le first four was made. m, i. U. C. i of action — rial j'.wwf.] I the defen- II causes of en, and the e defendant )roiight be- tlie ground miission the of its hav- Jerod as to s material. t,i. U. C. S. Effect on uors admit s who has a ters in dis- pd in favor alf the vvit- ibmission to nsent to the i interested, '. Davis V. I li»}). doptintr his here arbitra- tors disagree in some of the items of the account referreil to them, and dur- ing the invcsti|>ation call in iin um()ire to give his opinion on such items, and subsequently adopt tlutt o])inion as their own, it is not necessary that the umpire should sign the luvanl. Cay- ley et al. In re, iii. U. C. R. l~4i. Jlttorney (ippointrd to receive money under award — Poirer to mhstitvte another] — 9. Where inmiey by the award is to be i)ai(l to the plaintill" or to the plaintifl's attorney, the atlorney cannot substitute aiiollier attorney un- r - him to receive the money. Mase- \ Chambers et al. iv. U.C.R. 171. fldavit, of execution of award.'] — 10. The ailidavit proving an award must shew that it wa:; executed within the time limited by the submission. — Heather v. Wardman, iv. U. C. R. 173. ARGUMENTATIVENESS IN PLEADING. See Pleading, I. ARMY. See Secuhity for Costs, 5. Action against colonel of a regi- ment — Question for jury.'] — 1. In an action by a contractor against the col- onel of a regiment for clothes made for his men, it should be left to the jury whether the credit was given to the government or the defendant. ,\[c- Elderry v. Baldwin, Mich. Term, 3 Vic. Actioft by an officer against the pay- master for his pay.'] — '2. An action cannot be maintained by an ollicer against the paymaster of his regiment for the amount of his pay, where the paymaster is dircrted not to jiay it over by the commnnding officer. El- liott V. Hall, Hil. Term, 2 Vic. Liability of oj/icers for debts coti' traded by messman.] — 3. The officers of a regimental mess are not liable for debts contracted y their luessman without their [luibonty. Sutherland et al. V. Sparke et al., Hil . Term, l Vic. ARREST. See Capias ad respondendum. — Capias ad satisfaciendum. — Malicious Arrest. I. Affidavit to hold to Bail. II. Privilege AND DISCHARGE FROM. III. Second Arrest, and Arrest ON alias writs. IV. Other Matters. I. Affidavit to hold to Bail. See Constable, 3, 5, — Escape, 10. Malicious Arrest, 2, 3, A>. Insufficiency of, ivheic debt is on bond] — 1. An atriilavit to hold to bail, slating " that the defendant is in- debted to the plaintiff upon a certain bond or oblication," is insufficient. Prior V. jYelson, Tay. Rep. 230. [See Cose v. McVeigh, infra 28.] For use and occupation.] — 2. An affidavit stating " that the defendant was indebted to the plaintiffi in the sum of 50/. for the use and occupation of a certain tenement," held sufficient. Ferguson v. Jlurphy, Tay. U. C. R. 271. DcponenVs name not set forth at length.] — 3. The court set aside an arrest, the affidavit to hold to bail not setting forth the deponent's name in words at length . Richardson v. JYorth- ropr,Tay.V.C. R. 4.32. [See [Vpf.l()vcr V. Burnham, infra 29.] Affidavit on special case — Using tcords of the statute.] — 4f. Where a ?ph 46 ARREST. ARREST. M person had been arres-'ted under a judge's ()rd(M', the court did not con- sider it ni'cessarj- to make use of the precise words pointed out l)y the sta- tute. Bardon v. Cawdell, Tay. U. C. R.669. .*). Tlie aflidavit to arrest on special case requiring the sanction of a judge to the issuing of tne writ, need not foUow the form prescribed by the act, that form of affidavit being only consi- dered necessary in matters of debt, when the creihtor may sue out the capias as of rijrht. Nei'en v. Butch- art,\\. U. C. R. 196. On a promissory note-l — 6. An affidavit to hold to i)nil upon a promis- sorv note nuist state it to be "payable." Smith V. Sullivan, Tay. U. C. R.778. [Upheld in Jndruss v. Ritchie, infra 8. Also, see cases, 22, 33, 43 infra.] What imrtls dc not satisfi/ the statute.^ — 7. In an ailidavit to hold to bail, the statute is not satisfied by the words " that the plainlitV had ^oa^'on to believe that the defondant was about to depart this province without pnying;, &c." C/ioatey. Stevens, Tay. U. C. R. 620. On promissory note — Word ^^ pay- able''' omitted.]— S. The word " pay- able" beini: omitted in an athdavit to hold to bail on a promissory note, the arrest was set asiile. Jlndruss v. Ritchie, Drn. Re])., 5. Conclusion.] — 9. An affidavit of debt, condudinir " that the defendant will leave the province of Canada," is sufficient. Brown et al. v. Purr, ii. U. C. R. 98. JO. The conclusion of the affidavit of debt nesrativiiig any vexatious or malicious motive recpiired by the s*at. 2 Geo. IV. ch. 1, sec. 8, is not itc pes- sary since the statute 8 VicclL+K, sec. i-t. Lee e.t al. v. McVlu ■-, iii. U. C. R. ;i9, [.Vr( case 21, infrn.] For {roods sold and delivered — State- ment of request.] — 1 1 . An affidavit for goods sold and delivered must shew the request of the defendant, and the re(|iiest being laid to other sums will not su|iplv the defect. Watkins et ah, v. Liebsh'itz, Hil. Term, 7 Wju. IV. [Overruled by the next case.l 12. In an affidavit to hold the de- fendant to bail, for goods sold and de- livered by the plaintifT to the defen- dant, it is not necessary to state that such goods were sold at the delen- dant's request. 0ie et nl.. v. Kelli/, iv. U. C. R. 393, P. C. McLean, i. For money paid] — 13. Semble: That the request nuist he stated in action for money paid. lb. For money lent.] — l-t. Semble: That the request need not be stated in an action for money lent. lb. For goods sold.] — 15. It must be shewn that the gooils were sold and delivered by the plaintifj' to the de- fendant. McDonnell v. Kelly, iv. U. C. R. 394.. [For work and labor, see Hall v. Brush, infra 31.] For a trespass.] — 16. In trespass de bonis asporlatis,an affidavit that the defendant " took possession of the plaintiff's goods, ami still keeps posses- sion of them," is sufficient to warrant an order to bail. 1 n graham v. Ctni- ningham., Dra. Rej). 116. Misnomer in ajjiduvit and tvrit.] — 17. An arrest was set aside, where the defendant, whose name was " Pat- rick," was called "Peter" in the affidavit and writ. Bolsford v. Stetv- art, Easter Term, 11 Geo. IV. Affidavit stating debt oiring from partners — One otily arrested.] — 18. Where the affidavit stated that two persons, trading under the name of "J. & Co.." were indebted to the j)lainlilV, and p'-ocess issued against one only, the other being within the juri.«0. Irregularly made.] — 19. Where an affidavit to hold to bail vvai made ARREST. ARREST. 47 ■ed must shew ndant, and the )thcr Slims will Wiitldm et (il., I, 7 Wm. IV. ase.l to hold the de- idssoUl and de- r to the deten- iry to state that I at the del'eu- 'etfiL.v. Kelly, C. IMcLcan, J. —13. Semble: ist he stated in . lb. I — l-l-. Semble: not be stated in cnt. lb. 15. It must he s were sold and 'nti'll' to the de- n\. Kelly, \\.\i. see Hall v. Brush, -16. In trespass affidavit tiiatthe issession of ihe itill keeps posses- liiient to warrant nirraham v. C'h/i- 116. ivit and ivrit.l — set aside, where name was " Pat- " Veter" in the Botsford V. ateiv 1 Geo. IV. debt oinnfffrom I arrested, '\ — 18. stilted that two rthe name of "J. led to the plaintiff, auainst one ordy, in the jurisdiction, ide. C/iisholmv. p. 4pone?it''s rmdence— ^\as passeil, on an allldavit required in Work mid labor— Rr(iuest.']—'ii\.hK.^^\'^ '»i'n !>>' the old law. Bruce v. irregular to make an allidavit of debt, or Schn/ield, i. U. C. E. 1. issue a writ on Sunday, and in an affi- davit of debt, t!ie proper place of resi- dence of the dv'ponent must be stated ; and an atlidavit for work and labordone, without stating a /wyMP.s^, is defective. Hall V. Brush, Trin. Term, 3 &: 4 Vic, P. C. Macaulay, J. Word " malicimis^'' spelt with " t " instead of^^ r."] — 32. It is no irround forgetting aside an arrest that the word malicious is spelt with a " t " instead of a '' c," in the affidavit of debt, Jurat.'] — 37. It is not sufficient io state in the jurat of an affidavit to ar- rest, since the passing of the 7 Vic. ch. 31, that the affidavit was read over and explained to the deponent by the com- missioner antecedent to the swearing thereof, without statin;: that if was duly read o\ er, &c. Thayer v. Hcnsley, r. U. C. R. 33;'). Sct'cral causes nf action,'] — 38. An affidavit of debt for the sum oJ 613/., staled to be due as a distinct sum for Gardener \. .Morrison, Hil. Term, 4 j each of three ditVerent causes of action, Vic, P. C. Jones, J. | but concluding '• that the said sum of On promissory note.] — 33. An nffi- ()13/, is still due and owing to this de- davit of debt, that the defendant was poncnt by the said Thomas Eccles, indebted in a named sum due on a Sic," was held insufficient. Barry v. promissory note, due before the com- Eccles, ii. U. C. R. 383. mencemen't of this suit, the affidavit I Aj/irmation by Quakers.] — 39. havin<; been made several days before ' Where the plaint'ilV, a Quaker resident the writ issued, was held insufficient,' j,, New York, made an affirmation of as being equivocal and uncertain on a ' his ,laim before the recorder of that reference to the court in b^-c. CVarAv | city, and his agent m this country also V. Clarke, >. U. C. R. 395. la Quaker, made another affirmation, Several demands.] — 34. An nffida- ' proving the handwriting of the plaintifT vitofdebt for 80/., on a promissory and the recorder, that the plaintiff was note for that amount, and also lor goods ■ a Quaker, and the person styling him- sold, not specifying the smn due on ; self recorder was such, and had au- each account, nor whether the goods ' thority to take such affirmation, and sold formed the consideration of the note: Held, insufficient. BIcKenzie v./2e?>Ai-U. C.R. 3.%. Jurat— Commissioner'^ s name.] — 35. Where a defendant was arrested under a commissioner's writ, and the com- missioner's name was not attached to the jurat of the affidavit at the time of the arrest, although it was placed there before the motion was made to set the writ and arrest aside — the court held (hat he was apprehensive the defen- dant would leave the province 8cc. — the comt srranted an order to hold to bail. Smithv. Laurence, iii. 0, S. 18. Waiver of defect in.] — 40. Where a delenctanl moved to set aside an ar- rest on the ground that the debt was paid, and the rule was refused, the plaintiff denying the payment on affi- davit : Held, that he could not after- wards move for a defect in the affidavit ARREST. ARREST. 49 ind set them . Halliday, . C. Macau- sificel Vic. it cannot be 7 Vic. ch. )re that act t required in . liruce V. ; Mifficicnt to lidavit to ar- he 7 Vic. ch. eail over and ; by the com- tlie swearing It it was duly V. Hensley, u a.]— 38. An iini ol 613/., ;inct sum for isea of action, L> said sum of igf to this de- inias Eccles, it. Barry V. kers.l — 39. aker resident aflirmation of order of that country also aifirmation, )f the plaintiff plaintiff was styling him- and had au- niation, and e the defen- ovincc &c. — r to hold to ,iii.0.S.i8. -40. Where aside an ar- the debt was refused, the ment on affi- ild not after- n the affidavit of debt. Smith v. Ross, Trin. Term, 3 and 4 Vic, P. C. Macaulay, J. [But it the di'fi'iidant demand particulars, or a declaraiion. he does not thereby waive defects in the affidavit lo hold to bail. Hodgson V. Dowdl iii. .M. & W. 281.] rrresrulnn'f.y in — Escape — Setting arrest aside.] — 41. Tbe court will not set aside an arrest upon the ground of irregularity in the alUdavit, after the prisoner has escaped. Reefer v. Merrill et al., Tay. U. C. R. ()7.^. Setting aside arrest for defect in, after removal from inferior roM7-^]-42. Where alter an arrest on bailable pro- cess issued from a district court, the proceedings were moved into the court of Queen's Bench by a writ of habeas corpus, and a motion then made to set aside the writ and arrest for a manifest defect in the affidavit of debt, the rules were made absolute, though it was shewn in the return of the writ that a similar motion was pending in the court below, on which no jud<;mont had been given. English v. Everitt, \. U. C. R. 336. On promissory Tvote.] — 43. An affidavit to hold to bail on a promissory note must shew the amount for whicli the note was drawn. JVorton v. Latham, Mich. Term, 3 Vic. II. Privilege and Discharge from. See Attachment, III. 2. — Cogno- vit, 1. — Foreign Law, 2, 4. 5. — Insolvent etc., passim. — ;Judg- MENT, 19. — Sheriff, I. 19. Suitor."] — 1. A suitor attending a court of requests is privileged from arrest. Bi 0. S. 131. arrest. Baldwin et al. v. Slicer, iv. ; 0, al. Attorney,] — 2. An attorney coming to court in term time on professional business which has been tlisposed of, is not privileged from arrest in execu- tion. Stroubridge v. Davis, Mich. Term, 2 Vic. Grand juror,] — 3. A person who having attended as a grand juror at a court which adjourned for a few days, went into another district on private business, was held not to be privileged from arrest there dining such adjourn- ment. Mittleberger et al. v. Clarke, Mich. Term, 2 Vic. Officer of the court.] — 4. An officer employed in executing the process of the court is privileged from arrest. Welbij V. Beard, Tay. U. C. R. 415. Judge of County Court. ]~5. The judge of a coimty court cannot be ar- rested upon mesne or final process. Adams v. Acland, vii. U. C. R. 211. Barrister.] — 6. A barrister cannot be arrested on mesne process. lb. Judge of Surrogate Court.]-!. The judge of a surrogate court for one of the counties of this province is exempt, on grcmnds of public policy, from impri- soimient for debt. Michie v. Allen, vii. U. C. R. 482. Discharge on reference to arbitror tion.] — S. After an arrest for 613/., and while the defendant was in custody all matters in difference between the parties were referred to arbitration, and an award made in favor of the plaintiff for 140/. — the defendant was discharged from custodv. Barry v. Eccles,'\\. U. C. R.383,'P. C.Hager- man, J. 9. Where a defendant was arrested, and in close custody on mesne process and pendente lite, the cause was refer- red by a parol submission to arbitra- tion, followed by an award in the plaintiff's favor for a sum payable by instalments, one of which was due at the time of an application to discharge the prisoner from close custody, in con- sequence of the award : Held, that the prisoner under these circumstances, without shewing payment of the in. stalment due, was entitled to his dis- charge. Ruthven v. Ruthven, v. U. C. R. 279. Discharge of one of two joint de- fendants.] — 10. The discharge of one I i. 50 ARREST. ARREST. of two defendants in execution on a joint judirmcnt, operates as a discharge of both. Fisher v. Daniels et al., Easter Term, -2 Vic. Stdtiitel Vic. cfi. 31 — Operation on causes carried to j}t(l;^mciit before as well us since the Act..'\ — 11. Tiie statute 7 Vic. cli. 31, alioli.-iliing im- prisonment in execution lor (lel)t, de- prives the jilaintitf of tiie powi-r ol arrest in execulion as well in cases carried to judgment before as since the passinj^ of that act. Bank of British J\ 'ortk America v. Clarke, i . U. C. R. 1. [Upliekl ill next case.] Openilion of 7 I7c. ch. 31.] — 12. A defendant wlio has been charged in execution since the passing of the act 7 Vic. ch. 31, on a judg- ment obtained before the passing of that act, is entitled to be discharged from custody. Bell v. Ley, i. U. C. B. 9. Defcmtan t arrested on mesne jirocess and afterwards charged in cxei iition without a newafjidavit.'l — 13. Where a defendant was arrested on mesne process and committed to prison, and afterwards charged in execution in the cause without a new allidavit before 7 Vic.ch. 31 — the court held that he was not entitled to his discharge, as the plaintitr could issue a writ of capias ad satisfaciendum against him without a new alVidavit, as well when he had been committed to prison on mesne process, as when he had been lield to special bail. Hamilton v. Mingay, j. U. C. R. 22. Trial not had within three terms.'^ 14. Where the defendant in custody put oil' the trial of a cause at one as- size by affidavit, and at die next, being aware that tiie jtlaintilV had uiven no notice of trial, prevailed upon iiim to enter liis reconi notwithstanding, and had it placed low on the docket, and the cause uas not tried for want of time : Held, that the defendant was not supersedeable, on the ground that the plaintiff liad not proceeded to trial within three terms. Gordim v. Fuller, Hi!. Term, 6 Wm. IV. Liabilitij of defendant once dis- charged to be again arrested on the Slime ji(d'jment.\ — If). A defendant ilischaiged I'rom custody by superse- deas, the plaintilf not having charged him in execution in ilue time, cannot be arrested again on the same judg- ment. Burn v. Straight, Trin. 'lerni, 1 & 2 Vic. Ajijdicatio?i for a svprsedens bif a prisoner rendered by his bail.^ — 16. Where a prisoner surrendered iiy his bail after judgment, applies for a su- |)ersedeas, the plaintilf not having charged him in execution m due time, he must shew when notice of render was given. Jennings v. Ready, Eas- ter Term, 3 Vic. III. Second Arrest, and Arrest on AiJAs Writs. Second arrest set aside, costs of first suit not paid.'\ — 1. A second arrest for the same cause of action was set aside, where the plaintiflhad been non-piossed in the first suit and had not paid the costs. McCaguc v. Meighan ctal., ii.O. S. 516. First, set aside for mistake in affi- davit of debt.] — 2. A second arrest was allowed where the first had been set aside for a clerical mistake in the allidavit of debt, the plaintiff having discontitiued that action and paid the costs. Sheldon ct al. v. Hamilton, iii. 0. S. 6;"). Prisoner discharged from first ar- rest by giving a note which subse- (ptently tvas dishonored.'] — 3. The court refused to set aside a second ar- rest where the defendant had been dis- charged iVom the first, on giving a promissory note jointly with a third person and agreeing to pay the costs in a month, the note having been dis- honored and the costs not paid, although ARRKST. ARREST. 51 led to trial , V. Fuller, nnce dis- tid on the dorentlant ly cuperse- ig cliai'ireJ me, cannot ian\e jiulg- i'rin. Term, sedens In/ a 6(111.]— IQ. rod l)y his ;s lor a su- not having ri due time, e ol' render Ready, Eas- Arrest on costs of A second action was irthad been and had not V. Meighan take in affi- otid arrest it had beeo istake in the nlifl' having ind paid the Hamilton, •om first ar- hich. siihse- ]— 3. The a second ar- lad been dis- in giving a ith a third Y the costs in ig been dis- aid, although an action had been brought upon the note. McDonald et at, v. Amm, Easter Term, 2 Vic. Discharge from first, on entry of ap- pearance.] — 4. Where a deit-ndaiit was discharged from an arrest lor defer ts in the alfidavit of dol)t, on condition that he entered a common appearance, which he did, and lie was afterwards arrested on an alias w' in the same cause, the arrest was set aside for irregularity, the plaiiitilT having no right 10 make a second arrest in that cause where the entry ofan ajipearance is made a compulsory condition of tiie discharge from the first. Benson v. Adams, Easter Term, 3 Vic. First, set aside for irrefftilaritij.] — 5. Where a defendant had been arrest- ed on mesne process, which was set aside for irregularity, and the plaintilV afterwards proceeded to judgment : Held, that he might again arrest the defendant on a capias ad satisfacien- dum, issued on a new alFidavit. Gor- don V. Sommerville, Mich. Term, 7 Vic, p. C. Jones, J. First, set aside for irregularltij — Order of procedendo.] — (i. Where after an anost set aside for irregularity in a district court, the plaintilV arrested the defendant ii. the same cause on an alias writ under the statute, and the defendant then removed tia- cau-c in'o the Queen's Bench by habeas corp'is, for the purpose of setting the second arrest aside ; but, subsecpiently. took steps in the cause in the District Court, and did not put in special bail in the Queen's Bench — the court refused to set the second arrest aside, and ordered a procedendo. Garfield v. Simons, ii. U. C. R. 411. Prisoner disc/ianred cannot he de- tained by second tvrit issued hy same plaintiff.] — 7. A defendant disciiarsred from an arrest carmot be detained in prison at the suit of the same pliiintifl', upon a second writ issued upon an affidavit sworn while the defendant was in custody upon the first writ. Barry v. Ercles, iii. U. C. R. 112. [If tliere be several writs in the sheriff's hands, an arrest on one is an arrest on all. Barnuk v. Ntidon, i.(i. B. b2\ ; and if tlie iirs! arrest be irre;;tiliir, it invalidates subse- qnent deiiiincrs bv tlic same plaintifi' on other writs IhU V. Hawkins, iv. IM & W. 591.] Bail /jond set, aside.] — 8. Where a defendant was arrested on an alias writ under 2 Geo. IV. eh. Land gave a bail bond to the shoriir after having entered an ap[)earance to serviceable process: The bail bond was set aside with costs, Douglass v. Powell, Mich. Term, 2 Wm. IV. Intituling of affidavit. — 9. Where after service of non-bailable process the defendant was arrested and moved to set aside the arrest, on the ground that the affidavit of debt was intituled in the cause, and the plaintiff shewed tiuit the defendant had been arrested under the statute allowing an arrest under an alias writ, on a testatum writ issued to a diflerent district from that in which the first writ liad been served : the rule was discharged, the testatum writ being deemed sullicient tmder the statute, and the affidavit rightly inti- tuled in the cause. Glass v. Col- cleug/i, Easter Term, 3 Vic. Action on the case — Judge's order for arrest on an alias tvrit, after entry (f appearance] — 10. A judge's order cannot be obtained for the arrest of a defendant on an alias writ issued in an action on the case after ap- pearance entered by the defendant to serviceable process, as the statute allowing the arrest on an alias writ after serviceable process applies only to cases where the cause of action is debt. Ross v. Urqnhart, Mich. Term, 7 Vic. 11. And where a judge's order is necessary to arrest, a deiendant can- not be held to bail on an alias writ, under the statute. Boirm/m v. Yield- ing et nl., Midi. Tern^, 2 Wm. IV. Bail taken by a .Tusticc for the appearame of an offender — Second :fr L*. 53 ARREST. ARREST. arrest before tue time appointed.'] — 12. Whereon complaint to a justice against an offender the justice taiics bail for his appearance at a fixed time, a second arrest for the same cliarjio by tiie same complainant, before the time appointed for hearing, is iliesal. King v. On; Easter Terra, 2 Vic. IV. Other Matters. See CoNSTABLE,5.— District Court, 1. — Malicious Arrest, 1.— Sher- iff, I. 2, 3. 2 Geo. IV. chap. 1, sec. 8.] — 1. Where an arrest is made upon a judge's order, and no sum is specified in the affidavit, the statute 2 Geo. IV. ch. 1, sec. 8, does not apply. Sligh v. Campbell, iv. U. C. R. 255. Jlrrest by forei second — the court ordered tl-. < bond to be cancelled. Ranso:.(, et at, V. Doho/ioe, Tay. U. C. R. 678. Commitment undirl Vir.ch.3\,sec. 6,] — 8. Under the statute 7 Vic. ch. 31, sec. 6, the court will not punish a de- fendant by commitment, unless upon his examination the cause of action and the circumstances connected with it would clearly warrant the court in taking such a course. No improper conduct being proved against the de- fendant, when brought up for exami- nation under that section of the act, the court declined to commit him, leaving the plaintiff to recover satis- faction upon his judgment against the lands and coods of the defendant. McCue V. Twld, i. U. C. R. 278. Irregtdaritiis — Prompt a])plica' tion.] — 9.. Tlie rule as to the necessity ofd ;»rompt application in cases of ir- regul irity, is not strictly applied in the case of prisoners. Barry v. EccleSj ii. U. C. R. 383. Arrest by magistrate icithout sum- mons.] — 10. Under the statute 1 Vic. ch. 21, sec. 27, it is illegal in a magistrate to cause the arrest of a ])arty in the Jirst instance: he must iirst be summoned before him. Crovk- hitc V. Hommerville, ill. U. C. R. 129. ARREST. ARREST OF JUDGMENT. 53 the court 'S et al., V. % he made,'] est the de- f purchase onveyed to round that r, was not ist resort to Hall, Tay. • irregular Pendant has ko plaintifls •lis arrested !. 10«., the ided in ♦*''* :d t;.- < nso:,t et al, (j78. ''.ch. 31, sec. Vic.ch.31, )unish a de- inless upon e of action nected with le court in o improper nst the de- fer cxami- of the act, )niniit him, over satis- against the defendant. R. 278. })t ii])2jlica- le necessity cases of ir- plied in the ^ V. EccleSf ithout stim- statute 1 I illegal in a arrest of a ■c: lie nuist im. Crovk- . C. R. 129. Power of private persons to arrest ] for felony J\ — H. A private individual cannot arrest on suspicion of felony, he must shew a leloiiy couunitted. Ashley v. Dundas, Easter Term, 2 Vic, [See another case of an arrest by a private individual, 14 intra.] Arrest contrary to agreement,'] — 12. Where a debtor leaves the province, and returns ujjon an agreement that he is not to he arrested, proviiled tliat he inunediately proceed to tlie settle- ment of his estate, and the creditors upon his return arrest him, allegine; that he has broken the condition upon which he was not to be arrested, and the debtor api)lies to the court to set aside the arrest — the court will not discharge him from the arrest, but will leave him to his action on the agree- ment. Sutherland v. Mwjihy, iv. U. c. R. n«. What is an arrest,] — 13. The depu- ty sheriff having a ca. sa. to arrest a parly, went to his house with the writ in his possession for that purpose ; he told him of the process, ami being as- sured that a friend of his (the debtor's) who was then from home, would go , his bail, he returned home and did not insist on the debtor cominu; yvith him. Afterwards, the sherilV went again to the debtor's house and told him, without laying his hands on him, that he must come to his (the sheritf 's) house, which he did, and remained there till dischaiired — but not under ac- tual constraint : Held, that muler these facts, there had been no legal arrest ol' the debtor ; that the merely insisting on the debtor going to the sherilV's house on the second visit, tlid not of itself constitute an arrest ; but that the debtor in having gone to the sherilV's house as desired, and having remained there till discharged, ihoiiuh without constraint, had been dniv arrested. McInlo»h V. Demeray, v. if.C, R. 'MS, [Also, see Malicious Akhest, 17.] Arrest by private individual when assaulted 171 the 2^Mic street.] — 14. Where a man is himself assaulted by a |)erson disturbing the peace in a pub- lic street, ho may arrest the ofl'ender and take him to a peace officer to an- swer .for the breach of the peace. Forrester v. Clarke, iii. U. C. R. 1.'>1. 15. And in such a case it need not be averred or proved that the offender was taken to the nearest justice. lb. Irregularity in arrest — Sjiecialbail no cstfqrpct .] — l(i. Where a defendant puts in special bail to an alias bailable writ, he is not thereby prevented from objecting to any irregularity in the ar- rest. Ross et al. v. Balfour et al.y Mich. Term, 2 Vic. ARREST OF JUDGMENT. See District Council, 18. — Indem- nity Bond, 7. Use and orciqwtion.] — 1. It is no ground lor arresting the judgment in an action for use and occupation, that the ileclaration does not shew that A, B., who occupied the premises, was ten- ant to the defendants, or that the de- fendants held under ihe |)laintiff. M'ljj'at V. Macrae ct al., Dra. Rep. 10. Covenant on mortgage — averment of money being taipaid without staling half) much due.] — 2. Where the i)laiiitiff declared in covenant, and set otit that the money w as to be paid according to the condition of a cer- tain bond, the balance due on which was alleged to be ascertained, and the breach assigned was, that the money was not paid according to the coven. ant, but did not state the bulunrc due, the jiulginent was arrested. Martin V. Woods, Trill. Term, 3 &, 4 Vic. Qui tarn, action under 6 Geo. I V, ch, 1 14'.] — 3. In a ipii tam action to recover jienalties under the imjierial statute t) Geo. IV. ch. ll-i, which 54 ARREST OF JUDGMENT. ARKEST OF JUDGMENT. gives the penalty one-tliird to llio Kine, one-third totiie Licvitonanl Governor, and one-third to the iiir<>i'nier, the court reliised to arrest j)i(li!:niont. on the jjround that tlie i)!niniiir claiiiicd the penalty for liimsvlf and the Kin^ only. Jones qui tani, v. Cliace, Dra. Rep. 334.. After a demurrer.'] — k JuikMnent cannot he arrested alter jinkniuMit is given on a deninnor. Wraa-'j v. Jarvis, Trin Term, (i &7 Wni. IV. Jlction of trespass — Derhir/ition in tresjxiss on tlic eiise.\ — f). A rule to arrest the juiluinent heeaiisi' the ilec- laration commenced in trespass on the case, the action heing trespass, was refused. Baee/itis v. I\'IcC'(inn,'Yr\i\. Term, 3 & 4 Vic. Husband and Wife — Wife\- in derlamtion — Objection after judsjment bij default^ —6. In an action hy hushand and wife, judgment was arrested alter judgment by default, on a declaration in deht, containing counts on a hond and the common counts, where the wije^s interest did not appear in all the counts of the declaration. Shubenr et ux. V. Cornwall, Mich. Term, 5 Vic. [Also see 13, infra.] Verdict a^xainst executors for Jirearli of promise ofmarriiiireby trstntor ] — 7. Where a phiintill'liad recovered a verdict against executors, for a breach of promise of marriage made hy their testator — the ci>urt would not (on the ground that such ati action could not lie against 'pcrsrnial rcjiresentntivcs) arrest tlie judament. Ihiri/ v. JMi/crs (executors of ), Tay. U. C' R. 111. Breach of covrnnnf.] — S. In an action of hreach of covenant to make a leat e of premises, il is no irround ll)r arresting the jiidtrment, that the premi- .ses are not ptirticu/arl// set forth, if the breach be as definitive as the terms of tlie covenant require. Rowancl v. Tjfler, iv. 0. S. 257. I Tenant in doirer stated to have been attached iiisteiid of mmmonedj^ — f). The court relused to arrest the jucLniient, because the tenant in dower was stated in the declaration to have Ihh'11 uttiiclnd insti^ad of summoned, Rohinet v. Lcu-is, Dra. Rt'p. 172. j Dcrlaratiuii for hoard, ij-c] — 10. I "For that whereas the detendant on the \-l\\\ of July. 184.f). was indebted to till' plaiiilill' for meat, washing and loili'inir, goods, chattels and other ne- cessaries, then l()und and provided for one A. 15., at tlii' tiel(.'ndant's s])erial instance and reipiest." On motion to arrest jii'! shewn, the C(nirt will not make the rule absolute, unless the party movimr shew smiie substantial objec tion to the record. Mqfatt v. AP Crae et al., Dra. Rep. 10. ENT. ted to have summoned.'] lo arrest the ml in (lower tion to have siii/imoned. i-p. 172. ', 4v.]-10. loll'iidaiit on viis indebted uashintt and lid other ne- provided for ant's s|)erial On motion he folh)\ving s not alleged found hy the lat they had i/ii of the de- on [lood after laxivell, vii. rst objection n special de- onmivred as 1. Where ass, for tiiat >rce and arms /, 115 oak /i(?i frrnji-insr rrtnin lands ,r, (not say- oin't refused n the ground t sut! for cut- < for an injury action should real property, the trees as ir. Mil/cr,\i\. life, no cmisc the retm-n of inenl, though coiM't will not iless the party tantial objec nttw.M'Crae ASSAULT AND BATTERY. Husband and wife— I Vlfe's interest not ttpjjpririmr in the dec/am/ ton — Objeriion. after verdict ]— 13. In tres- pass ([uare claiisuin freiiit et de l)()iiis asportatis, by hiisi)and and wile, wiiere the general issue is pleaded, eve ythniii will be inteniled after vinliit to sup- port the declaration; and although the wife's interest do not clearly !ipi)earin all the counts of the declaration, yet it will be supported on motion in arrest of judgment. Howe et ux. v. Thump- son, Mich. Term, G Vic. ARSON. See Libel and Slander, I. 8 ; III (1), 1, 4,5. — Malicious Prosecu- tion, 't. ARTICLED CLERK. See Attorney, 1. ASSAULT AND BATTERY. See Appeal, 6. — Arrest, IV. 14. — Costs, 1(1), 15.— New Trial, II. 4. — Trespass, II. 20. Pleas of" S071 assault demesne''^ and *' molliter manus inqmsuif'' — Special demurrer.] — 1. To trespass for assault and battery, and wounding plaintilVand biting off his fingers, and common as. saiilt against two defendants, the gen. eral issues were pleaded by both jointly, but they severed in their pleas of justi- fication: first plea by one defendant, " molliter manus imposuit" to preserve the peace, plaintiff and the otiier de- fendant being fighting. — To first count first plea the same, and plaintiff dis- turbing family, &c. — Plea by another defendant to first count, '' son assault demesne."— Special demurrer to all the pleas, that defendants had jointly nega- tived the assault and battery, and by their pleas they attempted to justify ASSAULT AND BATTERY. 55 the same specially. — Special cause overruled, but first and second pleas bad, " molliter manus imposuit" being no answer to the declaration; and fourth plea good as an answer — if there were any excess the ])laintiff should have ni'w assiLHied. Sliore v. Shore et al., ii. O. S. (if). 2. Qitccre: Whether where a de- fendant is charged with arresting, bruis- iau. beatin::' and ill treating the j)lain- till. a justification ol" the mere arrest will be sullicient ? Jones v. Ross et uL, iii. U, C. R. 32S. Pled of " son assault demesne''"' — Re- jdicatiun thereto^ — 3. To a plea of "son assault demesne," to a declaration I lor assault and battery, a replication that the defendant conunitted a breach of the peace,and that the plaintitr,being a coMstablt^ and having view thereof, arrested him, is a good answer. Fido V. Wood, Trin. Term, 7 Win. IV. Trespass — Justification, " molliter manus imposuit.''^] — 4>, Where in tres- pass the plaintitVdeclared for an assault and battery, and striking blows, where- by the plaintiff was greatly hurt, bruis- ed and woimded, and the defendant justified the hurting, bruising and wounding, concluding " which are the same trespasses, &c.," the plea was held good on special demurrer. The plaintilV declared in the several counts fir an assauhand battery, and beating, bruising and wounding, and the defen- dant justified the assault and battery by a plea of " molliter manus impos- uit :" Held, sullicient. McLeod v. Bell, iii. U. C. R. 61. Conviction for same offence under Petty Tresj)assAct.] — 5. In an action for assault and battery, a conviction for the same assault under the Petty Tres- pass Act, must be pleaded, and cannot be given in evidence unler the general issue. Heney v. Simpson, Trin. Term, 1 &; 2 Vic. Plea ofconvictioji under Petty Tres- jjttss Jlct,2^i'oof thereof.] — 6. A plea |v 1: 56 ASSESSMENT OF DAMAGES. of conviction imdcr the Petty Trespass Act, + Win. IV' ch. -i, to iin action lor an asaault ami batUry, is not su|>port- ed by a proof of a conviction for an assault alone. Ddoiig v. .McDonell, Easter Term, 2 Vic. Insujfirienci/ nf jiistificfition — 31(is. ter and servant,] — 7. VVIiore in tres- pass for an assault and hattcry. for tvo^rulinsr and kirkimr, and for Unr- iVii,' the plaintilPs ciotlies, the defen- dant justified as for a moderate cor- rection of the plaintilVas his servant^ the plea was held had on demurrer, as itatforded noansui'rto tlie woundinir and tearing; the clothes of the plaiiitilV. Mitchell V. Dcfrivs, ii. U. C. R. 4.30. Justification undir leu;al p?vrcss\] — 8. Sembic: That to a declaration in trespass, for assaultinsr, seizinif and layinir hold of the |)i!iintilT, (indjndlin^ and dra(r'i'^may must be propeilv averred. />;?/•« v. 'i''*" •'•''•'i'''-' '" indebitatus assumpsit, McNnmara ct <:l., iii. U. C. R. tiTli. Averments on sjwn'ulu^m mcnt. ] — 2. In dedarin;.' on a special au'reement, tor chattels a' on an acconnl slated. Lister \. n f( /V7/, Mich. Term, .') Vic. Assiimfsil, vhrn mdinfainnhle — Queere: Whfit must be averred in the ' P/ra nj'aiKrtvrc.] — 7. Where the de. declaration to have been done ; or : fendant promises, iliai if the plaintiff what may be left lo be set u]i as mat- ter of defence in the pli-a if it has not been done. SomMr: That the inten- tion of tlic parlies to be reasonaiily collected from the whole iiistrimient, must covern. Ewart v. lifwrs. v. U. C. R. 1H>. Dfchiration nn promise to nmfiinir ', ^^^ would convey a certain property to !Mrs. A. (^. and take a inorlaa^e from her fo 'paynienl ol'tlie purchase money by a corl;iin day, the nnney hhould bo paid on that day : Hihl jnr Cur,, re- versiiii! the jiuIffiTienl of the court be- low, that an aciioii of assiiinpsit would ie I i;ainst the delendaiit on the a former affrcinunt— .h-erments inccs- tion-payment of the iiioriiiaiic, and that Sfl/ •.]— 3. Wheivadefend-.iit issued llu' plea of Mrs. A. B.'s coverture, upon a promise ei continue a linnior 'Vciild lie a bad plea ; Xtmhle, iiow- agrccmcnt, wiiich at tlie lime of the f'^*''- ''i^' ^"<'' :• I ■'"' \v"<'!'l Ih' a good aFlegred promise is al)out ONpiriiiL', the defence wiierea jnoniise of ihe defen- plaintill' should stale in his declaralion '|''"" '■■' >"'' >'i' '" '■''' declaration, as the precise terms e!" the former auiree- fKindeJ on a consideration of llu- plain, tnent ; and als(\ aver that the terms 'i'l"^ forheara-'ce io sue a married so stated compo^ed the whole of the woman for a debt alh-^ed to be ]>rc- formcr a-reemenl. liarnvs v. Mv- ri'.iiylii ilur by her. Xichoh v. Mc- Kay, V. r. V. R. :2Ki. ''til' vii. V. C. R. -l^'i. Thepromisr siiould be nlleirrd in di- J^vii/cnre — Dummres,'] — S. Quare: red terms] — !■. In an action of as- Tf in asMinipsil on a contract to carry Bumpsil, iue promise of the defendai.l sioeds safely, with an averment of total should be alleged in direct leruis ; the loss, and a plea that the goods were AfiSDRANCE. ATTACHMENT. 61 defendant laintiiT, in t being a defendant r says he -^. In a for not de- liim from lainlilV, on crind and ;!c' price — it ol'rcadi- on demur- jter Term, 9r chattels ii. In de- iinipsit for le set forth laintifTmay assumpsit, mil slated, 'mi, f) Vic. tainabh' — lere the de- ic plaintiff ropt'ity to laage from aso money V .should ho ;• r?//., re- court he- ipsit would ml on tiie icand that coverture, 7?///r, how- (1 111' a good 'llic del'en- ivalion, as 'iIk- plain, married 1(1 he pre- hnh V. Mc- • S. Qi/are: •t to carry Mit of total goods were carrieu safely, and no evidence given . to shew thfit any of the sroods were lost, but only lliat the cask in which they were jiacked was injured, and some of the iroods damn|;(?d, is the plaintilfentitled to recover anythinLS or more than nominal damnures. Hancock V. Betlinnc, iii. U. C. R. 47. Imhbitfititi^ assumpsit — Phn, s:e?t- eral issue and ^ifymciit info court — Plaintiff must prove (hima<^es.'\ — H. Wlicre in indebitatus assunijisit the defeiulant. as to all the monies in the declaration, except as to 'i'.M. \\s., pleaded the iicnerai issue, and as 1<> that sum, pleaded payment of 1/. Is. Sri. into court, and no damn;rcs ultra; and the plaintill' replied, that he had sustained greater damasres, but at the trial obtained a verdict lor the difl'erence between tl;;' sum of 3.'i/. l-ls. and 1/. Kv'. ^'/. paiil into court, as a sum admitted on the record without giviiii^ any evidence — the court set the verdict aside, as it was incumiieiit oi\ the piaintilVto prove dama;ies, no spe- cific sum beinsr admitted on tin- record in this form ol aciion. /?oss u al. v. Garrisons Hil. Term, 7 \'ic. Agrfcmrnt to ililircr ichrat — FaiJ- vrc — Dirluradou ihircon — llvirthe de- fendant had m)tice :'' HcliL on motion in arrest of jud::ment, declaration iiood. //f/f/also, that it was not necessary for the plaintilV to prove, under this aereement, a j-equesf on iiis (the plain- titf's) part to the defendant to deliver, or that liu was at the mill of the third partv to accept a delivervof tlie wheal. IVrlghl V. Wrcil, vi. U.' C. R. 110. ATTACHMENT. See Artjitratiox and A\vard,VI(1). Atturnky, IF(3). — Ejectment, IV(-J).— Sherifk, II. I. Whe.v Granted. II. Practice 0\. III. Other Matters. ASSURANCE. See Insuhance. I. When Granted. S(c Absconding Debtor, passim. — Arkitratiun etc., r. 2,3. — Cer- TioRAnT,4..— Costs, VII. 6 ; VIII. 2. — Ejectment, VII. 4-. tlgainst i/i'puf?/ rhrkofthc crotcn ] — 1. An attachment was granted auainst a deputy clerk of the crown lor liavini: issued serviceable process without authority ; and afterwards, on his appearance in term to ans^-er in- ti'rrojialoiies, the court ordered him to !)e dismissed from his olTice,and to pay the co?ts ol' the proceedings. Rex v. Frascr, iii. O. S. 237. Jlirar'st District Court Judgt .] — 2. An attai'iuent will not be granted aiiaiiisf a judire of a liistrict court, for not obeyini: a writ of certiorari, uidess it bo shewn that he is aciinsr contu- maciously. Juda;e Nioiritrd District Court. In re, iii. O. S I'Sl. Ainn'nst a/isrondims drhtors.^ — 3. See " AbscondihL' Debtor," passim. Asninst nttornics.'] — k See " At- torney,'' 11(3), passim. Airiiinst sli(riijs.\ — 5. See " Sher- ilT," II. Aaiii nst icilncssf's.l — 6. See " Sub. po'iia,'' 2, 3, f). t //) f/rr/mint.] — 7. See " Ejcct- imenl,"' IV(2). On (urnrds.] — S. See " Arbitration ami Award," Vr(l). Srcmit/ attachment — Costs of form' er onc.1 — 9. A sect>nd attachment was refused, until tlie cotits of setting aside •;• ' ! i 62 ATTACHMENT. ATTACHMENT. a former one had been paid. JRex v. Ruttan, Easter Term, 6 Wm. IV. II. Practice On. See Absconding Debtor, passim. — Arbitration and Award, VI(]), passim. — Attornky, 11(3), passim, Service of rule nisi."] — I. A rule nisi for an attachment must he person- ally served, ami the oriirinai shewn at the time of service. Cryshr v. Cam]i- Ae//,i. U.C. R. 4Hi. [Not so if it be shown that thn party knows of the rule, anil isevailing the service, fn »v., Whaleij, xiv. M. & W. 731 ; roiiira, Willdn- ton V. Pennington, 6 Dowl. 183.] Affidavit of service of 7-uIc.] — 2. The affulavit of service upon 'vhich the rule for an attachment is founded, is good, though it state tlic service as made on the day of a certain month, instant, without statii\2 t/ie year. Re- gina v. Tomb,W. U. C. R. 177. Demand under 2^ourr of altorncy.'\ — 3. Where a demand of costs to ground an attachment is niaiie under a power of attorney, it mtist be sliewn that a copy '^f the execution of the power has been served. Marnj v. Butler, Easter Term, 2 Vic. [Upheld in Morrison v. /.oicrfoi , Trip. Term . 2&3Vic. ; Qiiav. //n/Hifs Kasler Term, 3 Vic.,; Brfii'slcrv. MrFAirn, iiifrri. 1. and so in the Kna:li.'-h Courts in the rases of Doe dein. Copea V. Johnnon, 7 Dowl. I\ C. ,").")'); .^. C. ^non, 1 W. W. i:. H. .j45». 3 .Tur. 23. Rut see the hiteslcaseon tliis point, that of .SV;;i(/f/-,v V. MrSlierrij, infra. 5.] Demand, vndir poirrr of attorney — JIffidavit.'] — 1'. Where a rule on an iit- toriiey re(iuired that the money sliould be paid within a month after service, an attachment for non-payment w;is refused, no co])y of the alVidavit ofllie execution of the power of attorney under wliicli the money had iieen de- manded bavin;;; been served, and llie aftidavil of die non-pnymenl stntinL' only thai the money had not l)een paid within the month, and not neaa. living j)ayment aft(>r the month. Brrics- ter V. MvEu'en, Easter Term, 3 Vic. 5. In movins: for an attachment for non-payment of costs, where the de- mand has been nnuie under a power of attorney, it is not necessary to shew that al the time «f llio demand a copy of theatlidavit ot'iiie execution of the power of attorney was served. Sanders v. McS/icrry, IMich. Tcu'm, 5 Vic. Jiidffc^s order vtadr a rvle of cmirt — Demand imdrr th" ordir before it liccame a rale of rovrt.'] — (i. An at- tacinnent for non-payment of costs mider a jiKlge's order suliseipiently made a nde of conrl. where rt de- mand liad been made mnler ihe order, !)ut not after it hail become a rule of court, was refused, ddvcr v. Mc- DoncU, Tiin. Term, 7 ^Vm. IV. Order of A'/si Pri/ts must be made a rale of court ] — 7. An atlachment will not lie craiited on the order of a judL^e at Nisi Prius \inlil such order 1)0 made a rule of court. Phnnb v. ilMrr, Hi!. Term, 7 Wm. IV. Demand — Part jxryment received — Demand neccssan/ fir /y.svV/uc.] — 8. Where a ])iaintiir was ordered to pay costs, and a demand of them was made on the master's alloeiitur, when he ])aid a part, u hieli was receiveii : Held, that <-in atlachment could not be Planted for the residue without a new demand. Hyntt V. Ani^rr, Easter Term, 3 Vic. Demand made Ir-j afforneij.^ — J). Where a rule dirc'ed costs to be paid to a parly in a cause, :iii atlach- ment was y:ranleil on a demand made l)V his attornev. Kimhall v. lii/ison, trin. Term, 3 ii 4 Vie., P. C. Macau- lay, .f. Ajlt'lavit to srf a^idi — lloic to lie in- fifaUd.] — I(t. An tillidavit to sel aside an attachment must he intituled on the crown side, and not in ilii- names of the pailies to liie ,-iiit. Mollocli v. Morris, Trill. Term, 1 iV. 2 \'ic. [Also, .see 12, iiifia.] Motion to set w/Vc. after arreat— Objections raised tchic/i might have ATTACHMENT. ATTORNEY. 6S ment for .' (he de- a ])<)\ver ■s^ary to demand ■xcciition i Horved. h. Term, of court before it i. An at- ol' costs sei|Ufntly rn .'1 de- ilie order, ■ a rule of •• V. Mc- IV. \t he made llaelinicnt irdor of a iifli order rhmb V. IV. creivcd — /«r.]— H. I to pay was made I lie jiaid //rW.lliat uiled for ileniand. ni, 3 Vic. lo be ittaeli- inil made . liipson, ]\laeau- to he in- II set aside ( il on tlie names of liilhir/i V. \ie.. /• arrest— 'gilt have Sl^ been made in shewing cause. "] — 11. Where at the time of grantinsr an at- tachment aiiainst a ])hiintiir lor non- payment ol' costs pursuant to a rule, cause was shewn ami several objec- tions taken, which were overruled : Held, that after the plamiitr's arrest undo;' the attacliment, lie could not move to.set it aside for irrcitularity on other grounds of ohjection, which nii!j,ht lion to move for his discharge must bo served on the opposite party and noion his attorney. Garrison v. Balkwell ettiL, i. U. C.R.2. Attachment for costs stayed, oiving to misconduct ofattornies.^ — 3. Where expenses have been vexatiously incur- red in conducting a suit by the at- lornies on both sides, the court, to pro- tect thcjclient, will order an attachment, have lieen urired on shewmsr cause | though regularly issued, to be stayed, when the ap|)licalion was made lor the without costs, upon payment of the writ, Ih'ixina v. Ili/dtt, Trin. Term, 4 & f) Vic, P. C. Macaulay, J. Jlfjuhvits to set tfS/V/c, hoii^ inti- tuled.] — 1"2. After an attachment has been ordered, altliou'ili il has not is- sued, allidavits made use of to set aside the rule for it must he intituled on the crown side, (iiuhmd v. JJurroivcs, Trin. Term, 3 &. 4. Vic, P. C iNIacau- lay, J. money due. Rcgina v. Cameron, in the suit of Playter v. Cameron, iv. U. C. R. 165. III. OtIIV.R JNLVTTF.RS. See Escape, U, 1-2, 13, W, l").— Limits, II. ^. — Shkkiik, 1. 7. Costs against it i/sitrressf a I prosecu- tor.] — 1. Where the defendants had been bronalit into court upon an attach- ment, although they cleared themselves U|)on interi'oiralories of the imputed con- tempi, the court refiiseil to allow costs against the prosecutor, even although he had onfitted a liict in his atlidavit which might have alle(Med their deci- sion upon granting the alta(;hme!il,and althoush one of the allidavits upon which the altachmeni was moved for was not filed early enough for them lo answer by a counter allidavil. Rex v. McKemic ct uL, Tay. V. C. R. Sf). 7 Vic.ch. 31. srr. S.— What must. be sheian liy a parly movina-jhr his dis- charge u/iihr — Svnifc (if 111)1 ice of mo- tion,] — '2. A parly moving under? Vic. cb 31, sec. S, l()r his dischartre from custody on an attacliment, must shew that lie is in contempt /r>/' non-payment of money ; and the notice of his inten- ATTAINDER. See Treason. ATTESTATION. See Evidence, V. 2, 3, 5, 6. ATTORNEY. I. A'lTicLED Clerks. II. Du rics AND Liabilities. ( 1 ) , Duties, and liability for negli- gence or misconduct. (2), Other Liabilities, and Plead- ings. (3), Sutnmary proceedings against, III. Fees. IV. Eights, and Miscellaneous Matters. I. Articled Clerks. Service of , u'ith agent in this pro- vince] — 1. An articled clerk can serve only only one year wiih the agent of the attorney in this province. Gil- kison In re, Hil. Term, 7 VVm. IV. Clerk carrying on business where attorney is not resident.] — 2. It was stated by the court that where an arti- ,. : 64 ATTORNEY. ATTORNEY. cled clerk carries on business ill a place 'ftf^?7s< under articles.'] — 8. On an where the master iloos not reside, that application for an attachment against the time so spent will not i)e com piilei in his service. Mclntosli, v. McKen- zie, In re, Mich. Term, 1 Vic. Loss of articles.'] — 3. Where an attorney's clerk had lost his articles ol clerkship, he was suorn in on an alVi- davit of the loss, and producins the usual certiticate of service. Loring, In re, Mich. Term, 2 Vic. Engaged in other an attorney for having improperly granted a certificate of actual service to A. B. an articled clerk, when he had heen al)sent from his service on account of ill health for nearly two years whilst he was under articles, and to strike A. B. oil' the rolls, on which he had heen admitted more than two years before, the court refused both rules, on the uround of the long time occupations that had elapsed since the clerk's ad- ! II. DCTIKS AXD LtABILITIES. (1), Bvties, and Liability for J^egli- isoice or Misconduct. whilst wider articles.]— i'. An attor- mission as an altornev : but they made ney was struck olV the rolls, where it hig ,„j,s„e,. ,i:,v the costs of the appli- was shewn onalVukuit that during th(- eailoii. Uolluml, In re, Trin. Term, entire period he was under articles lie , 5 ^ (j Wi^, was a salaried clerk attendinga ])iili!ic : office. Ridout, In re, Trin. Term, 2 | & 3 Vic. When n strident maij he admift"d upon his own tijjidavit of service,] — 5. A person mav he admitted an attor- ney of tliis court upon his own allida- (-), Other Li(d>ilities, and Pleadings. vitt of service, where the attorney to (;i),, Suinyanj Proceedings against. whom he was articled is absent from | the province. Rudenhurst, ex parte. Tay. U. C. R. 17;"). Insuflicienc>/ of certificate of mas- ter.]— ii. A certilicate i'nini the mas- ter, and an alfulavit of the person entitled, statin;; " tha( he he had duriiii;- his clerkship done everythinjr recpiired of him," was held not su;licient to entitle him to he admitted an attorney of this (i), Dudes, and Lialnlity for J^egli. gence or JMiscunditet. Deliver]/ of brief to covnsel — JVegli- gence in not doina: so,] — 1 . A. retains B., an attorney living in Kingston, to dereiul him in a suit to be tried at the Perth assi/es. — Before the trial, A. comes to Kingston to advise with B., U. t/, . . I .jj^ Forth, he cannot go there in this Absence for a year on r/crw?2< 0/: one suit, but that C, who is a barrister til health,]— 1. An articled clerk who .voiding at Perth, would attend to it, having served four years, obtained his , and that A. had better see him on the master's consent to go to England for Muhjcct.— A. makes no objection, but the benefit of his health, with the in- i^oes to Perth and instructs C. in his tention of returnmg at the end of six .icfence— C. conducts the suit at the months, but his health still continuing „.ij,i_a ,„„„i„al verdict is given against bad, he with his master's permission A.— No complaint is made that C. remained six month's longer: The mismanaged the cause in any way: court on his return admitted him n^\nc/d per Cur., that under these c'ir- an attorney. Hagarty, In re, Mich. [ cumstances B. is not liable to an ac- Term, 5 Vic. ,ioii (or nesrligence at the suit of A., in ^Application to strike attorney of the rolls for being ttoo years a/i«c;t^|'iivcring it to C. (Macaulay, J. dissen not himsell' making up a brief and de- ATTCjRNET. ATTORNET. 65 ;. On an •nt against mproperly lal service when he service on icarly two rticles, and on which ; than two fused hoth lonft time clerk's ad- they made the appli- 'rin. Term, LITIES. forJVegli- Pleadings. s against. Jor JSTegli' el — Xegli- A. retains inji.ston, to tried at the trial, A. sc with B., other case re in this a barrister ttend to it, ini on the ection, hut C. in his suit at the ven against le that C. any way : these cir- e to an ac- lit of A., in icf and de- , J. dissen- tiente). Kenney v. Armstrong, iv. U. C. R. 196, Duty under the ordinary retainer, as to issuing execution, tj-c] — 2. It is no partofan attorney's duty, under the ordinary retainer, to issue an execution and to collect the money upon the judgment — his authority ceases with the judgment. Where therolbre, in an action against an attorney, tlie plaintitT states the promise to be, that the de- fendant would prosecute and conduct a certain action in a skilful and diligent manner, and then lays as a breach of the defendant's undertaking to prose- cute the action Stc, that he delayed to issue execution, witlioul averring any special retainer to do so : Held per C'm>'., declaration bad on general demurrer. Searson v. Small, v. U. C. R. 259. Duty, as to taking unfair advan- tages J\ — 3. Sembh:: That an attorney would not be liable for culpable negli- gence, in not urging for his client the defence, that the agnemenl upon which he was sued was made on a Sunday, as it is no part of his professional duly to take all ilishonest advantages. Vail V. Dugganet al., vii. U. C. R. 568. Misconduct in acting 'without au- thority.^ — l. Whereon an application by a defendant to set aside proceedings in a cause, he swore that no process had been served on him, and that an attorney who had accepted process and entered an appearance for iiim, had acted without authority — the court ordered that the attorney siiould file sh aBidavit accounting for his entry of appearance. Weir v. Hervey et al., Hil. Term, -t Vic. 5. Under the circumstances, as men- tioned in the last case, the court the following term set the proceedings aside, and ordered that the attorney should pay all the costs. lb., i. U.C. R. 430. [See case number 8, infra.] Breach of faith.'] — H. Where a declaration in ejectment had been served on a wrong party, and the at- torney of the lessor of the plaintiff wrote to the attorney of the person who ought to have been served that if he would waive the irregularity and go to trial, that no action for mesne profits should be brought against his client, if the lessor of the plaintifl'should be suc- cessful ; and the defendant's attorney accordingly went to trial, and the lessor of the plaintifl' obtained a verdict and judgment — the court stayed the pro- ceedings in anaction which was after- \vards brought by the attorney to re- cover mesne profits from the defen- dant, and ordered that the attorney should pav the costs. Stephenson v. M' Combs', I U. C.R. 456. 22 Geo. II. ch. 46.]— 7. To subject a person to the penalty of 22 Geo. II. ch. 46, for suing out process, &c., the attorney allowing his name to be used must first be convicted. Rex v. Bidr well, Tay. U. C. R. 670. Striking off' the roll.'] — 8. An at- torney who had been rrdered to pay the costs of setting aside proceedings, in an action in which he had acted without authority, having ailervvards written a highly improper and unjusti- fiable letter to the Chief Justice, im- pugning his motives in the judgment which he had given, and stating that he was actuated from personal and pi i vate feelings of dislike towards him : The court directed that a rule nisi should issue to strike him off the rolls ; and no proper nor sufficient apology having been made, the rule was after- wards made absolute. Herve^y, In re, Mich. Term, 5 Vic. Assumpsit for negligence — Mis- direction.] — 9. In an action of special assumpsit against an attorney for neg- ligence in discharging the plaintifls' debtor, who was in custody on a capias ad satisfaciendum, without any autho- rity from the plaintiffs for 8odoing,itis no misdirection to tell the jury thatthe damages are discretionary, and that it is not incumbent on them to give th« I j h ' 66 ATTORNKV. ATTORNEY. I -I plaintiffs a verdict for the whole amount of their deht. Bradbury et al., v. J,^r- vis,\. U. C. R. 301. Charge of frnudulent breach of du. ty.'\ — 10. All attorney is not responsi- ble as lor a fraudulent breach of duly, for an erroneous opinion given to a client on a question arising on a will. Alexander v. Small et at., ii. U. C. R. 298. Liability for negligence — Failure of proof of special damages — JS'omi- nal damages'^ — 11. Wiiere an attor- ney was retained to make an applica- tion to the ci>urt to release a sherilT from an attachment, and the jury in an action for negligence in conducting the application found that he was in fault : Held, that he was iiai)le to nominal damages for such negligence, although all the grounds of special damage laid by the plaintiff failed. McLeod v. Bmtlton, iii. U. C. R. 84. Assignees of insolvents to sue for negligenccl — 12. Under the 1st. "Sth and 18th clauses of the Insolvent Debtor's Act, S Vic. ch. 4-S, the right to sue an attorney for negliuience vests in the assignees of the insolvent plain- tiff, and not the plaintiff h'mselt'. Alex- ander V. A. B. ^- C. D., Attornies, V. U. C. R. 329. (2), Other Liabilities, and Pleadings. See Trespass, I. 3 — Trover, I. 6. Liability for sheriffs fees.^ — 1. An attornt;y is liable to the sheriff for fees on executing writs, and for ser- vices rendered lor hmi in causes of his clients, without any special underta- king. Jarvis v. WaMurn, Dra. Rep. 171. [The writs, &c., served in this cnse would geem to have been nmnr prottss. — See Cor- bett V. McKenzic, intra U.] Action against, for money received for client — Defence of fraud.'\ — 2. It is no defence in an action against an attorney for money received by him on account of his client, that the judgment on which the money was paid was obtained throiigh fraud of such client. Williamit v. King, Easter Term, 1 Wni. IV. LiahiUly for sheriff^ poundage oyi executions.^ — 3. No action hcsbythe sheriff against the plaintiff's attorney \n a cause to recover poundase upon ar execution which the attorney has placed in his hands to be executed. Corbett v. McKenzie, vi, U. C. R. 605. [So Mayhmj v. Mansfield, 16 L. J., Q. B. 10-2 ; 11 Jur. 60; Se(tl v. Hudson, 2 B. C. R. 55.] Action against, for false imprison- ment — Justi/ication.l — 4'. Wiiere in an action agninst an attorney for false imprisonment on a writ alleged to be void, the plaintiff produced the writ to connect the attorney with the. arrest: Held, that the attorney could not justi- fy under the writ so produced by the plaintiff, without a special plea. O'- Reilhf V. Armstrong, Easter Term, 4. Vic. JS^egligence — Declaration.'] — f>, A declaration against an attorney for negligence, is sufficient in stating gen- erally that by the negligence o( the de- llniiants he (the plaintiff) lost his cause — it need not point out what the negligence consisted in. Vail v. Dug- gaii et al,, vii. U. C. R. 568. (3), Summary proceedings against. See div. III. 12. Where matters of complaint indict- able.^ — 1. 'i'he court will not proceed summarily against an attorney upon a complaint of matters for which (if the charge were true) he might be indicted ; especially where the affidavits in .V//' James ]\TcUrc- gor et al. v. Qmdin cl al., iv. U. C R. 378. Client not bound hj terms accepted by his attorney.] — (>. The court will not hold the defendant to terms accept- ed by his attorney, at the suggestion of a judge at chambers, when he imme- diately abandons tlie judge's order. Young V. Shore, ii. O. S. Sll. Agreemeiit hcticecn attorney and Judge of District Court as to set- tling delit — Attorney absconding.] — 7. Where a promissory note of a judtre of a district coinM was jilaced in the hands of an attorney for collection, and he agreed to give the judge credit on the note for fees payable by him for liusincss done in the district court, and did indorse part on the note as payment, and subseciuenlJy the whole amount was paid by such fees, but the attorney refused to credit any more than the sum first indorsed, and after- wards abscoiideil : Held, in an action on the note, that the jtidire could not . A client is not 1o be rcirarded as havinji a right to govern the conduct of his attorney, as to the degree ol" liberality he shall observe in bis practice. Shaw ctal.v.JS'icker- sun, and Gilhspie etal. v.J^'ickerson, vii. U. C. R. 541. ATTORNEY GENERAL. See Ckktioraki, 5. ATTORNMENT. See Ejectment, I. 3. AUCTION AND AUCTIONEER. .SVe House. — Si:t Off, JG. Conditions of salr — Purchaser's name, l)y ichnm to be signed — Re- i/uisitesof — Sinned list.] — 1. At an auction the conditions of sale inust be annexed to the list of purchasers, so as AUCTION AND AUCTIONEER. AUCTION AND AUCTIONEER. 71 IG. to make a complete contract to bind I the vendee undcrthe Slntute of Frauds ; \ but it is not necessary that the auction- j eer himscU' should sign the purchaser's name, it may lie done by his clerk n\ the time, and the clerk of the o^vncr. ol'fhe goods sold, acting openly at the i sale I'or the auctioneer, is his clerk to ; bind the piuchaser; and the signed / list should sliew the weight and value of the articles pmchasrd, and the price given for them. Somljoril et al. v. O'Dona/ioe, jNIich. Term, 4. Vic. [Ste cases U, 8 *c 9, iiilVa.] ,; Jhtinn (i^(ii)isf. an auctioneer for ij selliiiir ifoods at a rviiions pricr — Kri- :'| dence.] — '2. An action will lie against % an auctioneer for selling goods at a ruinous sacrifice, if the jury under the circumstances fmd that he has acted negligently and in thsregard of his duty ; and it is no misdirection in such a case 'I' to tell the jury that the low price for ' which the goods were sold is evidence to go to them of ncglicence on the jiart of the auctioneer. Cull \. Wakefield, Mich. Term, f) Vio. i:F Conditinns — Deposit — Statute of '% Frauds — Resale — Lo*? — Responsibi- ■ lity of first pur ekaser.'\ — 3. Whereat 4 a sale by auction, the det'endant pur- § chased goods on the condition of fur- nishing indorsed notes for the amount, with the option of obtaining a discoimt often per cent, for cash, and that if the conditions were not complied with the goods were to be re-sold at the risk of tlie purchaser, and after the sale the defendant paid 15/. on account, but performed no other part of the conditions, and the plaintifl' re-sold the goods at a loss : Held, that the part payment took the case out of the Sta- tute of Frauds, so as to dispense with the necessity of proof of a written con- tract, and that such payment could not be considered as depriving the plaintifl" of the right to re-soli and make the de- fendant responsible for the loss on the re-sale. Furniss v. Satvers, iii. U, C. R. 77. [See case 5, infra.] Sale tvtthout notice of revocation of auctioneer'' s authority.] — 4'. If goods are sent to an auctioneer to sell, and the |)rincipal afterwards direct the auctioneer not to sell them, but the goods still remain in his possession, and are purchased bona fide by a third party, wlio has no notice whatever of the revocation of the auctioneer's authority, sucii sale is good. Gunn v. Gilhsiw, ii U. C. R. 151. Resale — Pureliase of goods bij part- ner of auctioneer J\ — 5. Where goods were sold by auction, but not liuving heen taken away by the purcliaser, were afterwards re-sold at a loss, and were purchased by a person who was the partner of the auctioneer, though in anotlier business totally distinct from that of auctioneer ; and an action was afterwards brought by tlie auctioneer to recover from the first ))urchaser the loss on the re-sale: Held, that it was no nood groimd of objection to such action, that the goods on the re-sale had been purchased by such partner of the auctioneer. Clarkson et al, \-.J\'oble, ii. U. C. R. 3(jl. Conditions of sale — Construction of sale as to credit and cash — Set ofi'.^ — (). By an auctioneer's conditions of sale purchasers to an amount exceeding HO/., were to iiave" six months credit, iriving approved indorsed notes:" Held per Cur., (Robinson, C. J., dis- sentiente), that a purchaser over 30/., upon these terms, was a purchaser unconditionally on credit, and could not be treated as a purchaser for cash, upon his refusal to furnish the indorsed note; and as he could not consequently be sued on tiie common count lor goods sold and delivered, until after the ex- piration of the credit, tliat to a special action brought by the auctioneer against the purchaser before the credit had expired, for not giving the indorsed note when requested, a plea of set off would be inadmissible. Wakefield v. Gorrie, v. U. C. R. 159. Saloon special agreement — Plea 72 AWAY-GOING CROP. BAIL. of another agreement^ — 7. Where the conditions of a sale are stated in the declaration as beins imposed nt the time of sale, llie deliMiilant cannot be dischari^ed from liis obligation to perform tliem by allesfins; in liis plea any agreement Ixforr the sale; the plea containinir such defence is bad on general demurrer. Mend et at. v. Hendrii, i. U. C. R. 238. Hiirnnturc of elerk su^jicient to bind purchaser.^ — S The signaliu'c ol" the clerk of an auctioneer on behalf of a purchaser at an auction, is sniVicient to chars^e the party puichasina; within the statute. Clarlisoa et al. v. jVoble, ii. U. C. R. 3(J1. Off'er l/ij jmrehaser to sell the irooih to another — Ao ncceptuJice.^ — !) An offer by a ])un.haser at an auction to sell to another person the ufooils ])ijr- chased by hiui i.> not such a doalinir with the goods as constitutes an ac- ceptance of tliem, to take the case out of the Statute of Frauds. lit. AUTRE ACTION. See Abatement, 7. — 0^'us Pbo- BANDI, 2. AVERAGE. See General Average. AVOWRY. See Replevin. AWARD. Sec Arbitration and Award. AWAY-GOING CROP. See Lease, I. 6, 8. — Trover, II. 4. BAIL. IN CIVIL CASES. I. Justification, Discharge and Reliek ok. II. PROrEKOINGS against. III. Bail-piece, am) other matters RELATING TO BaIL. IN ClilMINAI, CASES. Ste Criminal Law. I. Justification, Discharge, and Relilf of. ^Ifjidacit of J list ifi rat ion, before irliom sH-orn,\ — 1. The allidavit of jusiilicalion of bail cannot he sworn before the defendant's attorney. Koyle V. H7/mc, ii. O. S. 113. When bail aui, justifi/ bi/ affidavit made at the time of aeknoivledsmcnt.'\ ■1. I'ail will he allowed to justify by the allidavit made at the time of the ackiiowleilirinent, thouL'li an exception to them be entered, when- nothing is shewn to repel such allidavit nor to impeach their solvency. Dus^qan v. Den-ich, Hil. Term, (J Wm. IV. Boi/ excepted to in vncation — Time to justifi/,'] — 3. Since tlie statute 4" Wm. IV. ch. 5, bail excepted to in vacation are compelled to justify in vacation, and have not till the following term for that purpose. McKenzie et al. V. Maciiiib, Easter Term, 2 Vic. Stirrender of principnl icithnut cer- tipcnf,e from sheriff — Exonerttur re- fnsed.'\ — 4). The court will not grant leave to enter an exoneretur where bail have surrendered their principal without a certificate from the sheriff to whom he was rendered. Linley v. C/iecseman, Dm. Rep. 55. Time for tender — On notice of ren- der, plaintiff' must stay proceedings.'] 5. Bail have eight days in full term after the return of process against themselves to surrender their principal, and the plaintiff is bound to stay pro- ceedings on receiving notice of the BAIL. BAIL. n ofren- dingsJ] ill term against rincipal, ly pro- of the render, although the costs bo not paiil. Ivesv. Robinson, Mich. Term, 2 Vic. [Seenexi casc.iuid 12, infra.] Linbility of hull for costs when ren- der made m proper timr.'] — (>. VVliori bail tiiirreniler their pnncijial within the time allowed alter the return of process aa;!un*t themselves, they are not liable to costs. Lewis v. McDon- ald, Trin. Term, 2 k 3 Vic. Render of principal — Stai/ of pro- ceediniis %incon•?'«. Where a doli-mlanf was arrested and 40lh section of the act (2 (ieo. IV. ch. 1.) Gillesjne et uL\. Grunt, liu U. C. R. 400. Proceedings against bail tcithoiit gave bail below, and the bail below put i their kmncledgc — Interference of in bail above, the notic«^of which wnslcourt.] — 9. Where j-idmnenf and exe- 8igii«'d by their attorney as r/fi/i^^iir/aw/s' I eution have been obtai.ied against bail atlorncf/,am\M the sul)se([uent papers I by returnsof "nihil" to sci, fas. without in the cause were served on his auent, any Ivowledge on their part of the and judgment was obtained, and the defendant taken in execution, the court, on allidavit of these facts, and that the defendant had no knowledge proceedings auainst them, the court, although they cannot set aside the pro- ceedings, will interfere and let them in to a defence to the action, ujwn pay- >f the proceedinifs, set them all aside < ment of costs. Read v. Hilts et al., with costs. .Mc.Martir v. jMcKintion,\iV' U. C. R. 175. Hil. Term, (J Wm. IV. Pleadings.]— 10. Debt on a re- fSee also cast; 9, infra.] cognizance" of bail.— Plea, no ca. sa. Refusal to set ffSjV/e ^jrocccr/rn^-s, I Replication, setting out a ca. sa.direc- notu'ithstanding irregularities.]—!. ; ted to the sherifl' of the Newcastle Where there was an irregularity both | district — averring that district to be the BAIL. BAIL. 76 ithuut of one in which the venue was laid, and concluding with a prayer to the court to inspect tlic record, and giving a day lor that purpose. — Rejoinder, travers- ing the venue being laid in the New- castle district, and averring it to have been laid in the Victoria district. Demurrer — 1st. Because the rejoinder was a departure from the plea : 2ndly. That a perfect issue having been joined already by the replication, the defen- dants were precluded from adding any further pleadings: Held, rejoinder good. Robertson v. Goin et al,, v. U. C. R. 72. Declaration.'] — 1 1 . Heldj)er Cur., that it is not necessary to aver, in an action brought by the assignees of a bail bond, that ti»e sheriff did not re- ceive the money after the assignment of the bond ; neither is it necessary to aver that the defendant had notice of the assignment. Easton ct al. v. Longchamp et al,, iii. U. C. R. 475. dant pleaded non est factum, and on the trial it appeared that the bond was given to the plaintiff in her individual right : Held, that she could not reco- ver, and a non-suit was entered on leave reserved. Hntvw. Montgomery et ah, Trin. Term, 3 & 4 Vic. Pleadings — Evidence.'] — 15. Debt on a recognizance of bail entered into in a district court. — Pica, that no ca. sa. had been duly sued or prose- cuted out of the district court. — Re- plication, that the plaintiff d-d sue out and prosecute a ca. sa., setting it out, and praying that a day might be given to bring in the record. The record certified to this court, by the judge of the district court, agreed with the re- plication. — It was therefore held, that under the issue no objection could be taken to the ca. sa., as in some par- ticulars varj'ing from the judgment. It wa Iso held, that it was no objection tha. .1 did not appear upon the record that the ca. sa. had lain four days in the sheriff's hands before the return Bail to be perfected before stay of proceedings.] — 12. Bail nmst not only be pl.t in, but perfected, betbre moving ilay-t'i'^l^t''"? matter ol practice of to stay proceedings upon the bail bond ■ another court, and not made the sub- on the usual terms. Gotild v. J^er-lj^^t't of inquiry upon tlie-.-.o raised m this court. Cochrane v. ^'^yre et al., vi. U. C. R. 594. Action in outer district on record in minghnm, iii. O. S. 298. Stay of proceedings after delay of three ycan\] — 13. The court will stay proceedings on a bail bond, after judg- ment and execution, on payment of costs, where the plaintiff has delayed for three years to proceed against the bail ; and they will not keep the bail to terms accepted by them, when ob- taining a judge's order in vacation, where the order was abandoned after- wards, and never acted ujjon. Young V. Shore, W.O. S. 314. . Action on bond by executrix as exe- cutrix, ivhcn bond made to her in her own right — J^onsuit.] — 14. Where in an action of debt on a bail bond, taken in a suit brought bv an execu- Toronto.] — 16. In debt on a recogni- zance of bail, the declaration will be bad if it appear that the plaintiff is bringing his action in an outer district, upon a record of this court remaining in Toronto. Manning v. Proctor et al., vii. U. C. R. 22. ' Declaration — Filing.] — 17. In debt on a recognizance of bail taken in an outer district, the declaration must shew the recognizance to have been filed in the district wliere it was taken. lb. Averment of indorsement of ca. sa.] — 18. Held, that in an action by the assignees of a bail bond, the indorse- trix, the declaration was framed shew- ment on a writ of ca. sa. being stated ing the cause of action to have accrued \ to be for a '<'ss sum than that mention- and the bond to have been given to the j ed in the judgment, is no ground of plaintiffas executrix, and the defen- 1 special demurrer to the declaration. r: 1';.; I ' '■ i I* 76 BAIL. BAIL. Easton et al. v. Longchamp ct al„ iii. U. C. R. 475. III. Bah. Pikce, and Other INIat- TEUS RELATING TO BaIL. See Clerk of the Crown and Pleas, 1, 2. — Constable, 4. — Magistrates, 8. B(til Piece. '\ — I. Wliero there uro two plainiiiVs witli tlie same surname, the noii-rei)eiiti()n ol'tlie siimaiiie after tlie christian name of each in » bail piece is onlj- an irregularity, and will not warrant tlie ijlaiiitill's in takiim an assignment of the hail bond. .Meiir/i- an et al., v. Bruwii, Dra. Rep. 17.'). Intitxtlinir of bail piece — Entry o/!] — 2. A bail piece may be intituled of the term in which bail is put in, al- though not in the form in which the writ was returnable, and may be en- tered before the return day of tin* writ ; but it should state in the margin the district in which the venue is to be laid, and if it do not, it is a nullity. Word V. Skinner, iii. 0. S. Ki.'i. Amendment of hail piece, with con- sent of bail.'] — li. A bail piece may be amended in the names of either the plaintifl" or the defendant, with the consent of the bail. DiinicU v. Janus, Hil.Term, + Vic, P. C. Jones, J. Chnrsnng in c:irciition,^ — I. A ca. sa. lodged in a sherilVs ollice, to ciiarge the bail, is not a cliaruMiiti in execution. Dorman v. Rmvsun, Tay. U. C. R. 357. Attachment airninst sheriff stavd- inff as anentritij, bail heintrpirfectcd.'] — 5. Hail beiin; perlected, the cimrt will not order an attachment oiitained against tne sheriil', lor not brinttin^r in the body, to stand aa a security ; where, although a trial has been lost, it has been without the limit of the slierifl". and lie swears the a|)plicatioii is madi for his own indemnity. Ward v. Skin.- ner, iii. 0. S. 235. AUmnanrc of bail refused, one of the bail havinir absconded.^ — ti. A rule for the allowance of bail was refused, where it was shewn that since their justification one of tlie bail had ab- sconded. JJilliniis et id. V. Loucks, Hil. Term, (> VVm. IV. Eiirohuoit. nfnxoirniznnce fieslect- ed till (fter plea tf nvl tiel recnrd^^ (,V«/,v.] — 7. Wlieie a recuL^nizance is not enrolled until after nul tiel record pleaded, the plaintill" must pay the costs ol the del(_'iHi;nit's plea, and the detemlant be at liberty to plead denovo. Smith ". Jlortua, Triii. Term, 7 Wm. IV. Condition to render the defendant to sltcri/f (f district in which venue iiot lai. Bail who havo paid the costs of an :;iction acainst themselves, cannot recover them from their princi[)al as money paid ; tliej' must declare speciallv. Shore v. Bur- rill, M\e\\. Term, 3 "Vic. Procredintrs had in ditiricf covrt — Applicntio?i to set than aside in Queens Bench. '\ — 10. Where an ac- tion was l)r()nijlit on a recosrni/ance of bail taken in a district ciiurt,and on an ap]ilication to set asitle jjroceedings, circumstances wen? shewn which miuht ha%e induced the court to havo ordered an exoneretur to be entered on the bail pieiH', if the oriLnnal action had been brouiiht in this court : Held, tlnit the motion could not be entv rtain- ed, as the application should have lieen made lo the court below. .Monfonv, Mosierit al.. Trin. Term, 4 6t 5 Vic, 1'. C. Mad charter (i Vic. ch. 27. sec. 19, are disabled from hold- ing ships or vessels for any jiurpose whatever, whether as security for pre- existing debts, or for present advances. BlcDonclI ct al. v. The Bank of Up- j)er Canada, vii. U. C. R. 252. [This disability has been since removed by act of Parliament.] Poivcr to take mortifairfs upon real estate.']— \: Semble: That the Bank of Upper Canada may tiike uiortL'aL^es upon real estate, in order to secure debts 2>reviousli/ contracted. J6. BANK OF UPPER CANADA. See Corporation, 1. Rifrht of president to vote by proxy at election of bank directors.] — 1 . The president of the Bank of Upper Cana- da, not being an officer of the Bank, within the meaning of the Kith clause of the Bank Act, ii Vic. ch. 27, is not prohibited from voting by proxy at the BANKRUPT AND BANKRUPTCY. See Bills of Exchancf. ktc. VI. "^ Cask, (Action o\ tuf,). 7. — Es- toppel, (). — FuAini i.fnt Dkko f.tc, passim. — Jri)(;Mi',M'. 12. — Sheriff, I. 10. — Tiioveii, II. 3. Ccrfificntc in Loirrr Canada, a release in Upper Canada,] — 1. Under the Bankruptcy Act, 7 Vic. cli. 1(1, sec. 74, a person haviiit! obtained his certi- ficate of disdiarge in liankni|)t( y, un- der the ordinance passed in Lower Canada, is discharged from liis debts in Ui)per Canada, which were jirovable under the Lower Canada coniiiiission. McDonald et al, v. Dickenson, i. U. C. R. 15. [Thf ccrtilicatn is im liar to the rocovery of rent, Nfwlmi v. Sroll. ix. M. k W. 434, up- held in X. M. & W. 474. See a further case, 9 infra.] m. BANKRUPT AND BANKRUPTCY. BANKRUPT AND BANKRUPTCY. 79 Cognovit friveu in contemplation o/j bnnkrupta/.l—i. Giving a confession i of jiuii;ment, payable immediately, for a sum which is justly due to a creditor who lias pressed for payment, there being other creditors, is not a voluntary ; and fraudulent procuring of the delator's j goods to he taken in execution in con- templation of bankruptcy, within the \ meaning of the Bankruptcy Act, 7 Vic. ch. 10. licclnmnw. Workman ctal.,\ i. U. C. R. .'i.Sl. 1 3, A coirnovit given, in the opinion of a jury, by a i)ankrupt in contem- plation of bankru|)tcy,iiiid for the pur- pose of giving to the defendant a pre- ference or priority over his otiier, creditors, is a security within the 19th j clause of the bankrupt law,and there- ! fore void. Brent v. Pernj, vii. U. C. ' R. 24.. [Seo form of a plea of a confession being thus given, case 5, infra.] Buiikniplcij Act, 7 Vic. ch. 10, sec. ,37 — Sdzurc and Icnj under.'\ — 4.. The seizure and levy in execution under (he IJaukiuptcy A(;t,7 Vic. ch. 10, sec. 37, to avoid the etVect of a com. mission of bunkruptcy .subsccpiently | issued, mean only the seizure of the j goods, and not the actual levying of the monev thereout. Hales v. Tracy, i. U. C.R. Ml. Fraud II 1.1' .i. ronfcsnion of judtrment how 2i'.(cdcd.^ — 5. A confession of judsiiuent stated in tin pleadings to ha\ e beei\ given " in contemplation of l)aiikruptcy, and for the |)urposc of giving one of several creditors a pre- fereiite, and witli the intent to delay and defeat other creditors,'' is well pleaded, without further addinir that it was given within a month of the issu- ing of the commii^sion against the l)ankrupt. Jircnt v. Perry, ^. U. C. R. MS. Imprriiil Statute (i Geo. IV. ch. 1(), sec. IDS.]— (). Under the 7r)ih clau.^e of our Bankruptcy Act. the lOSlh section of the British Statute 6 Geo. IV. ch, 16, is not in force in Upper Canada. Maulson v. Tlte Commercial Bank, M. D., ii. U. C. R. 338. Seizure under execution before com- mission issued."] — 7. Il j" seizure be made under execution witii„( t notice of a prior act of bankruptcy i>efore the issuing of a commission ( f bank- ruptcy, the sheriff may proceed and sell, and pay over the proceeds of sale to the execution creditor, though the commission be placed in his iiands be- fore sale. lb. 8. When a part\ had confessed judgment to a banking institution before , the passing of the bankrupt law, with j the understanding that it would not bu ! enforcetl so long as he continued to pay to the plaintiff a certain sum every fortniiiht, and it was subsequently agreed after several payments, that the confession siiould stand also as a security for notes to l)e discounted for the party, and [)roceedings having been tlireatened against him by otiier cred- itors, tiie bank issued execution upon the judgment and sold: .HcW, that the assignees of tlie bankrupt, on a com- mission issued aller the seizure, l)ut before tlie sale, could not recover the proceeds in an action for money liad and received against tlie bank. lb. Bankrupt let in to plead certificate jmis darrein continuance after in- terlocutory judgment — Staying exe- cution^] — 9. Tliougii a cerliticate of b;irikruj)tcy be no discliarge to the bankrupt till it be confirmed, an inter- locutory judgment entered up against him before the confirmation will be set aside to allow iiim to plead his cer- tificate by way of puis darrein contin- uaiu-e, and if lie plication being made, aflcr judgment shall iiave been obtained and execution issued. Com- mercial Bank v. Culross et al., iii. U. C. R. 176. I 80 BANKRUPT AND BANKRUPTCY. BANKRUPT AND BANKRUPTCT. Execu tion — Co7/i mission — Priority of u'rits.\ — 10. A li. fa. at the suit of an execution ereditor, jjlaoed in tlie •iheriiV's hamis before a eoiuiuission of bankruptcy ajiainstthedeiilor be sealed, i but on the. mime ihiy on wliicli it was completed and delivered to the sheritT", has priority over the coniniission. j Beekmnn v. Jarvis, iii. U. C. R. 280. i Jlssiirnment of pmperf>/.] — 11. An assia;nnient of ])roperly made bona fido by a jjerson about to i)ecoiiie a bankrupt, to one of his creditors.! thirty days before the cununission of bankruptcy issued, is good, if it l)e , made without the knowledge on the part of the creditor of any act of bank- ruptcy havinir been conuniltcd. or that bankruptcy was in contemplation. Armoury'. P/ti/hps, iv. U. ('. R. Ifvc. [See A'l/r v. Culeimm, mt'ia, 16.] Action, />i/ liiinhrupt commenred be- fore banknqitcji J\— -12. Where a plain- i tiff commences an action, and pending' the proceeiiiiins Ijecomes a bankrupt, he may under our Bankruptcy Act, 7 Vic. ch. 10, sees. .U iV 3"2, continue the suit in his own name, unless the assitrnees intt-rvenc and desire to be made plaintill's in his stead. Irdarxl V. Wagstnf/'et al., iv. U. C. R. 'J31. | [A biiiknijit who lias not obtaitii'd Ills cpr- titiciite, nuiy aci|iiiro propeity and sue, uniyss the assi«nt!es interfere. Ikrhcrt v. Stnjcr, 5 Q. B. 965.] J^otice of act of bankruptcy to ex'-- cution rrcf/itnr.l — \'i. A notice in general terms to the execution crediior, before the sheriff cduld have levied under h.is execution, of tiie delt'iiiiant's ^ havintr comnntted an act of bank- ruptcy, (without specifymir any par- ticular act of baidvrnptcy.) is s\ifUcient to protect the debtor's property for the benefit of all his creditors. French v. Kiiigsmi/l, v. U. C. R. 30. 14. Notice of a declaration of in- solvency haviii!.' bet'ii filed, is notice of an act of bankruptcy from the time of its tiling, provided a commis^iion shall issue upon it within two months, and provided tiuit the execution creditor or his attorney was aware of the fact before suing out execution, lb. 15. Deed of assigmncnt by bank- rupt to one of his creditors, with a right of preference — annexing of sched- ule to deed — assignment on the face of the instrument of all bankrupt's estate to one crediior, an act ol" i)ankruptcy j)er se. Kerr v. Culvman, vi. U. C. R. 218. [Qiirprc: Anything short of this such an acli lb.] 1(), ronstruclioM of our Bankruptcy Act, 7 Vic. ch. 10, clauses '2 ifc 19, also of proviso to clause 19, and also of clauses 37 & 38, as also as to tlie neces- sity tlie act imposes upon the assignee of a bankrupt seeking to invalidate an assiiinmenl to a particular creditor, beiiiL' re(|uire(l to |)rove that the assign- ment was volnniiiry, in addition to its hein;: made by the bankrupt in con- teni|)lation of bankruptcy, with the knowledge of die creditor, and for the purpose uf a preference, lb. 17. Semble: That a jury finding •• that the assignment was executed in contemplation of bankruptcy, and tint the defendant kni'w wlien he took it that the other creditors would not be paid their debts," is sufficient to satisfy the act. and makes void the assiirnment, wiihout any s|)ecific direction from the jiulL'e or finding by the jury, upon the I'nrther point of the assisnment t)eing the voluntary act of the bankrupt. (Sullivan, J. dissentiente.) IL Plea of bfinkrvptcy.l — 18. Held, that the following ireneral [>iea of bank- ruptcy, " that after the making of the promise, and after the action had ac- crued, he became a bankrupt," with- out averring that he became a bank- rupt before action brought, or that ho had obtained a certificate, was good on s|)ecial demurrer. Short v. McMiU- len, vi. U. C. R. 407. BILLIARD TABLES. BILLS AND NOTES. 81 BANKS AND BANKING. See Bank OF Bkitish North Amer- ica. — Bank of Upper Canada. — Bubble Acts.— Corporation, 1, 3. — Joint Stock Company, I. — Mandamus, 6. — Money had and RECEIVED, 9, 10.— Witness, 12. BARGAIN AND SALE. See Deed. BARON AND FEME. See Husband and Wife. BARRISTER. See Counsel. BATTERY. See Assault and Battery. BEGIN (RIGHT TO). See Appeal, 3. — Onus Probandi. considered as a regulation super-added for the purposes of the Town of Lon- don. Church qui tarn v. Bichards, vi. U. C. R. 562. Recovery of penalty under 50 Geo. II f. ch. 6.] — 3. Held, that an action of debt would lie for the penalty, under 50 Goo. III. ch. 6. lb. Ai^ermcnts in declaration.'] — 4. Held also, that in an action for the penalty, it need not be averred that the defendant had not paid the penalty : Aho, that it need not be averred in the declaration that the defendant kept the ta))lc without having first obtained a license from the inspector of licenses; that he did so without having first ob- tained a license is sufficient: Also, that it need not be averred that the ofl'ence was committed after 29th September 1810. lb. 5. Semble: That the statute 3 Vic. ch. 9, sec. 9, and 3 Vic. ch. 20, sec. 10, do not apply to any person merely setting up and keeping a billiard table for hire, and not being at the same time a keeper of an inn or a house of public entertainment. lb. BILLIARD TABLES. Riirlit of the City of Toronto to sujij^rc&s.l — 1. Sfinhli': That tlie Cor- poration of the City of Toronto lias a rijjlit to supi)re.ss all Billiard Tables within its jiirisdieliDii. Riw v. Inspec- tor of Licenses, Home District, iv. O. S. 9. Duty imposed an, by Town of Lon- don, under net of inorporatiuit — Its effect oil pr(,i'inci((i iluti/.'j — 2. Held, that a by-law of the Corporation of Loudon, passeil under the authority of the statute 10 & 11 Vic. ch. 4-8, and providing that the owner of a billiard table shall pay 10/. per annum for a license to keep the same had not the etfect of ahrogating the duly imposed on t>illiarJ tables by the, provincial act 50 Geo. III. ch. 6, but must be BILLS OF EXCHANGE AND PROMISSORY NOTES. See Stock Notes. I. Form AND Construction gen- erally. II. Presentment and Accep- tance. III. Protest and Notice of Dis- honor. IV. Transfer by Indorsement. V. Action, Pleadings and Evi- dence. VI. Consideration, as a ground OF Defence. VII. Other grounds of Defench. Vill. Miscellaneous matters. I p 82 BILLS AND NOTES. BILLS AND NOTES. I. Form and Construction Gene- rally. See Kingston Marine Railway Company, 3. — Partners etc., 5, 6, 7.— Usury, 1, 3, 5, 10. The foUincium instrument, a pro- missory note.'\ — 1. Held, tliattlu? fol- lowing iiislruinont, " Yonae Street, 29 April 1S39. — Sevcntocii niontiis al'tcr (late, I promise to pay to Mr. Joiin Hogg or order, the sum of 50/. with- out interest, o/- three years and five months after date, with two years in- terest, for value received," is a valid proinissoiy note. Hogg v. Marsh, V. U. C. R.319. Making of note."] — 2. A note signed " A. e bill, the acceptance admits the signature of the agent, and his aiilliorily from the com- pany to draw the bill ; it also precludes the .setting up of any local technical objecrions in regard to the composition or description of the company, or their ability to draw the bill. lb, Accnmmndation.] — 9. Where the plaintitVs, who were bankers, retjuested the defontlant to draw two bills on England for their accommodation, which ho did, and the plaintifls indorsed and sold tiieni here, giving the defen- dant a draft of the same amount pay- able in England, to meet them when due, and the defendant for that purpose transmitted the draft to the drawee of the bills, an officer in the customs, by whom it was discounted before it be- came due, and the money jilaced by him with the public monies left in his charge, from whence part of it was stolen ; and in consequence, one of the defendant's bills came bock protested, and was paid by the jriaintifll : Held, that although it was an acoommodation transaction, the drawee waa the agent .0 BILLS AND NOTES. BILLS AND NOTES. 85 of the defendant, and not of the plain- tifls, and that tlic defendant was re- sponsiljle to thorn for the amount of the lull. Trusrott et al. v. BiJUngs, Trin. Term, 1 &. 2 Vic. Proof of presentment before action brought airainst guarantee.^ — 10. Where the defendant had guaranteed certain advances of goods and money, to be made to A. by the plaintilT, and the ])laintifl' took the note of A. payable at a particular place, for the amoimt : Held, tliat he could maintain an action against the defendant, with- out proving i)resentment there and no- tice of non-])aynient to the defendant ; and proving that there were no funds there, was not siitficient to charge the guarantee. Driirgs v. Watte, Hil. Term, 6 Vic. Svffidency of presentment of a note payable at aparticulnrjiluce, the tvords " and not clscivhcre^^ being omitted,'] — 11. On a note payable at a particu- lar place, without the words " and not elsewhere," it is sufficient to charge the indorscr to present it either at the place named, or to the maker himself. Commercial Bank v. Johnstoti, ii. U, C.R. 126. Presentment to maker — Statute 12 Vic. ch. 22.]— 12. The statute 12 Vic. oh. 22, respecting the presentment to the makers of notes on inland bills of exchange, &c., &c., does not apply to Upper Canada. Ridout etal. v. Man- nig et al., vii. U. C. R. 35. Foreign bill — Laches in presentment and in giving notice of non-payment.'] — 13. A bill of exchange drawn in Toronto on the 6th August, 1849, by a party dealing in bills, upon a party- living in New York, payable at sight, in favor of a party living in the State of Illinois, to be sent there as a remit- tance and for circulation, was present- ed in New York on the lOth Novem- ber following : Held per Cur., that the delay in presenting the bill to the drawee in New York, could not, under the circumstances, be held to be laches on tlic part of the holder : Held also, that the notice to the drawer from the holder living in Illinois, through his agent living in this province, of the bill being unpaid, by the latter calling upon him with the bill on the 24th December, the bill having been pre- sented in New York on the 19th No- vember, could not be considered, under the facts of the case, as laches on the part of the holder in {giving due notice of non-payment. Boyes v. Joseph, vii, U. C. R. 50.'). Note falling due on Christmas day, being a Monday.] — 14. A promissoiy note which falls due on a Christmas day, bemg a Monday, must be present- ed for payment on the preceding Satur- day. Holmes v. WardfTrin Term, 1 & 2 Vic. III. Protest and Notice of Dis- honor. See divs. II. 13, (latter part) ; V. 18. Notary, 1, 2. — Witness, 13. Seal to protest.] — 1. Semble: That a seal is not necessary to a protest. Goldie V. Maxwell, Hil. Term, 4 Vic. Evidence of non-acceptance of bill — Post marie.]—'!. A notice that a foreign bill has been returned protested, IS a sufficient notice of non-acceptance, and it is not necessary to send a copy of the protest with the notice ; and a foreign post-mark on a letter is prima facie evidence of the* time when the letter was mailed. OWdll v. Perrin, Mich. Term, 3 Vic. [Still the post-mark is not conclusive evi- dence— Stocken V. Collier, vii. M. & W. 515 ; and if the post-mark be given in evidence, it should be proved by persons from the post- office, or by persons who are in the habit of receiving letters therefrom. Woodcock v. Holdsworth, xvi. M. & W. 124.] Inland note — When to be protested.'] — 3. A promis.sory note made in Upper Canada, payable at Montreal in Lower Canada, is an inland note, being in effect payaWe generally under our statute 7 Wm. IV. ch. 5, and may be ■>% ^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 11.25 ^ Kii 132.2 S 144 "" S fca 12.0 WUU IJ4IJi^ 6" ^ ^.^• ■^ ** / V Photographic Sciences Corporation 23 WIST MAIN STRUT WnSTn,N.Y. USM (716)172-4503 f S 86 BILLS AND NOTES. BILLS AND NOTES. properly protested the day after the third day of grace. Bradbury v. Doole, i. U. C. R. -142. [See cases 13, 14, 18 and 19, infra.] JS ':cessify of averring notice in declaration.'] — 4. In a declaration agai? is., ♦ac dr' t^tfects from the time of draw- iiig the I :'A p.nd notice must also be averred v.'here the defendant is only a guarantee for the bill. Goldie v. Max- well, Hil. Term, 4 Vic. Proof of] — .5. Notice of dishonor of a foreign bill of exchange is not proved by producing the protest of the bill in which the notary certifies that he has given the parties notice, as it is no part of the notary's duty to give notice of dishonor. Ewing et al. v. Cameron, Trin. Term, 7 Vic. [But see Smith et al. v. Hall, 18, infra. Nor is such notice proved by a subsequent promise to pay, Bingh v. Legge, v. M. & W. 418. See however JSun/r of British North America v. Ross, infra 7, which decides that such promise may dispense with the notice.] Sufficiency of delivery.] — 6. A let- ter giving notice of the dishonor of a bill, though from misdirection it has not reached its destination so soon as it otherwise would have done, is never- theless a sufficient notice, if being pos- ted sooner than was necessary, it has in fact been received within the period allowed by law for giving notice of dishonor. Bmik of British JVorth Jlmerica v. Ross, i. U. C. R. 199. Subsequent unconditional jjromisc, tvith knowledge of laches.'] — 7. And where no evidence has been given of notice of dishonor, and there has been a subsequent unconditional promise to pay, with a knowledge of a default on the part of the holder, the evidence of notice is dispensed with. — A promise to pay after dishonor and knowledge of laches on the part of the holder, is evidence to support the averment in the declaration that due notice of dis- honor had been given. lb. Delivery to servant of indorser.] — 8. Delivering notice of non-payment to an indorse!' by leaving ii with an out-door servant cutting fire-wood, not known, and proved to have been an inmate in the iiulorser's family, is sutli- cient. — It will be a question of fact however, for the jury to determine, whether the subsequent conduct of the indorser shews him to have received the notice in due time, and where the jury finds for the plaintiff, though the judge's charge may be against the find- ing, the court will not set aside the verdict if the indorser file no affidavit denying that he had notice. Comme?'- ciai Bank v. Wcller, v. U. C. R. 543. [See cases 9, 15, 21 and 2'4, intra.] Jlddress of notice to indorser— " York tmvnship generally'''' — iSw^- ciency of.] — 9. Held, that a notice of non-payment of a note sent to an in- dorser through the post-oflice, addres- sed to him in " York township," in which he resided, was sufficient, there being no evidence as to whether there was one or more post-offices in that township, nor any proof that a letter for any other person would have been usually addressed in a different manner, or ought, in the common course of things, to have been directed to any certain post-office in the township, or in any other township near him. Bank of Ujyjjer Canada v. Bloor, v. U. C. R.619. [See Woodcock v. Holdsworth, xvi. M. & W. 124, in whic.'i the address was " l^ondon" generally.] Sufficiency of, on a Sunday.] — 10. Held per Cur., affirming the judgment of the court below, that the following notice of non-payment of a note: — "London, Nov. 22, 1846. "Sir: The promissory note of Peter Bowen for twenty pounds, at three months from the 19tli of August 1846, on which you are imlorser, is due this day^ unpaid. I therefore give you no- I BILLS AND NOTES. BILLS AND NOTES. 87 ticc that as the holder of the said note, I look to you for payment thereof: Your most obedient seivant, Warren Blinn" — given to the indorser of the following note : — " London, 14 August, 1846. "Three months after date for value received, I promise to pay to Thomas C. Dixon or order, at tiie olfice of Warren Blinn, Esq., in London, the sum of twenty pounds currency : F. P. Bovven"— was a suflicient notice to bind the in- dorser, witiiout stating that tiio note had been pn^sented for payment, or dishon- ored : Held also, ihat the notice being dated on a Sunday, (tlie note falling due on the Saturday, and the nolice being delivered on the Monday,) was no objection to the validity oi the notice. Blinn v. Dixon, v. U. C. R. 582. Several indorscrs — When notice to one notice to (dl.'\ — 11. Where a note is made payable to, and indorsed by several persons not in co-partnership, notice to one is notice to all. Tlie Bank of Michigan v. Gray et al., i. U. C. R. 422. Reqmsites of rvotice.'\ — 12. A no- tice of dishonor to the indorser of a promissory note must, either in express terms or by necessary intendment, shew that the note has been presented for payment, and that payment has been refused. The Bank of Upjier Canada v. Street et al., Mich. Term, 5 Vic. [.But it need not in terms inform the party to whom it is given that tliu party givnig it looks to him tor payment. Miers v. Brown, xi. M. & W. 372.] When note drairn and j)0'ynble in Loiver Canada ] — 13. Li an action on a promissory note drawn and made payable in Lower Canada, tlie law of Lower Canada must govern, in regard to the sufliciency of the notice of non- payment by the maker, to charge the indorser. Citij Bank v. Ley, i. U. C. R. 192. 14. Where a bill is drawn and in- dorsed in Upper Canada, but made payable in Lower Canada, the law of Lower Canada is to govern the time within which notices may be sent. Mathewson v. Carman, i. U. C. R. 2r)9. [And see cases 18 and 19, infra.] Z)e^«w/7/o/.]-;-15. In order to charge the indorser of a promissory note, it is not necessary that the holder should prove the notice to have been abso- lutely received. — If he shew that due diligence has been used in putting a letter into the post-office, though the post miscarry, that is sufficient. The fact that there is a post-office in the township in'vhich the indorser resides does not make it incumbent on the holder to direct his notice to that office if there be a nearer office in the adjoining township to which the in- dorser's letters are generally sent. The Bank of Upper Canada v. Smith, iii. U. C. R. 358. [See case 21, infra.] Sufficiency of] — 16. The following notice of dishonor was held to be in- sufficient, the note having been indors- ed by the defendant in his own name, and not in the name of the partners to whom the notice was addressed, although the defendant was one of the firm : " Messrs. P. M. Grovcr & Co. " Gentlemen : Take notice that the promissory note of J. R. Benson for 4(i/. Os. 1 Id,, on which you are in- dorsers, due this day, remains unpaid. Therefore the holders look to you for payment thereof, as such indorsers." The Bank of Montreal v. Grover, iii. U. C. R. 27. Sufficiency of] — 17. The following nolice of dishonor was held sufficient : " Sir : The note of A. B. for 50Z. at ninety days from the 20th January 1841, indorsed by you and due this '. li 1- i 88 BILLS AND NOTES. BILLS AND NOTES. day, remains unpaid. You are there- fore hereby notified that the bank looks to you for payment. Yours, &c "ToMr.J. Street. Fortlio Ca«hicr." The Bank of Upper Canada v. Street, iii. U. C. R. 29. Evidence of notice. 1 — 18. The cer- tificate of a notary in Lower Canada at the foot of the protest, that lie liad put a notice into the post addressed tc the indorser, is evidence of that fact under the statute 7 Vic. ch. 4". sec. 2. Smith et al. v. Hall, iii. U. C. R. 315. Indorser resident in Uj)per Canada — JVoie faijahle in Loiver Canada."] — 19. The law of Lower Canada with respect to giving notice, is to govern where the note is made payable and presented there, though the indorser reside in Upper Canada. lb. 20. Due notice must be averred. Commercial Bank v. Cameron ; Idem V. Culver, iii. U. C. R. 363. Deliver// to residents in Toronto.] — 21. A notice of the non-payment of a bill or jiote, when deposited in the post-office of the city of Toronto for any indorser residing there, is as good a notice as if it had been left at the indorser's residence by a special mes- senger. Commercial Bank v. Eccles, iv. U. C. R. 336. Sitfficiefiey of, a cpiestion of law.] — 22. What is a sufficient notice of the dishonor of a bill or note, when the facts are undisputed, is a question ol law. The Bank of Upper Canada v. Siuith, iv. U. C. R. 483. Dispensation of] — 23. Whenever the indorser of a note writes to the holder for the puri)ose of inducing him to believe it unnecessary to give him the regular notice of non-payment by the maker — especially where he states the maker to be insolvent, such a letter, though written before the note has arrived at maturity, will be construed by the court as a dispensation of notice. Beckett v. Cornish, iv. U. C. R. 138. [This dispensation must be averred in the declarutio!!. Bursh v. lAmgc, v. M. & W. 418. It IS not evidence of the count upon an account slated. lb. Actual deliverij of notice instead of posting it.] — 24'. It is sufficient if the indor.seron the promissory note receive notice of dishonor, in the same time as he would have received it by post, although the notice was sent to liim by private hand, and might have been delivered a dav sooner. Nassau v. O'Reilly, Hil. term, 2 Vic. Action against indorser — Promise tojyay, there havi?ig been' no notice.l^ — 25. Where in an action against an indorser of a promissory note no notice of dishonor was proved, but it was sworn that the defendant had asked for time, and promised to pay, although he said at the same time that he had received no notice, and the jury found for the defendant — the court refused to disturb the verdict. Bank of Zip- per Canada v. Corby, Mich. Term, 5 Wm. IV. IV. Transfer by Indorsement. See div. I. 13. — Estoppel, 7. Indorsement to trustees, uithoui naming them.] — 1; An indorsement to pay to the trustees of an insolvent firm, without naming them, is suffi- ciently certain on shewing who they are, and that they act in that capacity, to vest the note in them, so as to give their indorsee the right of suing upon it. Auldjo v. McDougall, iii. 0. S. 199. Indorsement in blank to2Jartners — Non-joinder.] — 2. Where three part- ners of a firm, consisting of four per- sons, declared on a bill of exchange as indorsees, and averred an indorsement to themselves trading under the part, nership name, and the bill was indors- ed m blank : Held, that the non-join- der of the other partner was not a BILLS AND NOTES. lilLLS AND NOTES. 89 ground of non-suit, as the bill, being indorsed in blank, mittlitbe sued upon by any parties who choose to join in the action. Anderson ct al.v. JSIacau- luy, Easter Term, 7 Vic. Averment of indorsemevt bij 2Mrt- ners, tcit/iout stiUitiff their christian names — Frivolous i/cmurrer.\ — 3. Where in a declaration on a bill of exchange, an indorsement was alleged to " Laurie and Burns, tra- ding under the name of Laurie & Burns," who indorsed to the plaintilVs, and the defendant demurred specially because the christian names of Laurie and Burns were not set out — the de- murrer was set aside as frivolous. The Bank of Montreal v. Hopkirk, i. U. C. R. 4l'8. [Also, see div. V. 34.] Liability findorsers, {clefendanU), plaintiffs havinij; compromised xvith the maker as to a portion of the noteJ\ — i. A. made his note payable to B., who indorsed to the defendants, and the defendants to the ])laintifl', who averred in his declaration a present- ment of the note to B. instead of to A. — the note was made solely for the ac- commodation of the defendants, with- out any consideration to A. the maker, — the plaintiff compromised with A., taking from him a portion of the note, and then discharging him, striking his name out of the note. — The jury gave a verdict against the defendants for the balance of the note: Held per Cur., verdict right. Sifton v. Anderson et al., V. U. C. R. 305. Note payable to bearer — Indorser thereon — Hoto to be sued.'] — 5. A party indorsing a note payable to A. or bearer, may be sued as indorser. He may also be sued jointly with the j maker, under our statute 3 Vic. cli. 8. Ramsdel v. Telfcr ct aL, v. U. C. R. 508. Note payable to maker'' s oivn order — Suit by indorsee claiming by indorse- ment from maker.'] — G. A. makes a promissory note, payable to iiiis own M order — B. sues him as indorsee, claim- ing by indorsement of A. made subse- (|uent to the note : Held,ihat the de- claration in that form was J)ad on special demurrer. Brown v. Shaver, V. U. C. R. (321. Transfer of notes by person not having right to do so — Cancellation of.] — 7. Where in a deed of separation the husband covenanted to pay his wife 150/., and appointed trustees, who bcinn; indebted to the husband in that amount, gave him their separate notes for payment to his order, which he in- dorseil in blank and n;turned to them for the benefit of his wife, and one of the trustees then gave to the wife the notes signed by him, with an indorse- ment that they were not to be sold by her, and she assigned them to the plain- till": Held, that he could not recover against the trustee on the notes, as they having been returned by the husband to the trustee, were cancelled ; and that the wife had, at any rate, no power to transfer them. Wilson v. JIc Queen, Easier Term, 3 Vic. [Indorsement by wife with sanction of hus- band. — See case 18, infra.] Accommodation note — Alteration.'] — 8. Where the payee of a note in- dorsed it for the accommodation of the maker, leaving the date and sum blank, which was afterwards tilled up by the maker, and the note dated of a time later than the blank was indorsed, but ])rior to the time when the note was acttially filled u]) : Held, that the note was good against the payee, notwith- standing the alteration. Sanclfordet al, y.Ross',m\.'i\xm,^\\c. [See case 15, infra.] Action by 2^aycc against maker and indorser subsetjuentto himself.] — 9. Where in an action by the payee against the maker and indorser of a promissory note it api)eared that the mdorser put his name on it as a surety lor the maker : Held, that the plaintiff ct)uld not recover against him, as he was a party to the note subsequent to ^s., 90 BILLS AND NOTES. BILLS AND NOTES. the plaintiffhimself. Jones v. Ashcroft et al., Trin. Term, 4 & 5 Vic. [See cases 14 and 24, infra.] JVofe in custody of indorsee, but in- j dorsement canrcUed — Inference there- from.'l — 10. Wliere an indorsee suing upon a note, produces it at tiie trial from his own custody, with an indorse- ment thereon which has been cancel- led, not as if by any accident, but in the most unequivocal manner, some explanation must be given the jury for rejecting the inference that the note has been satistied by the indorser, whose name is thus cancelled. Peel V. Kingsmill, vii. U.C. R. 364. Indorsement of note by administra- tor.'] — 11. It is no ground for impeach- ing the indorsement of an administra- tor, that the debtor at the time of tile intestate's death resided out of the ju- risdiction of the Surrogate Court by which the letters of administration had been granted. Wright v. Merriam, Mich. Term, 6 Vic. J^ote not negotiable — Liability of parties indorsi?ig.'] — 12. A party in- dorsed his name on the back of a note not negotiable, or if negotiable, not in- dorsed by payee, cannot be sued as indorser by the pavee. West v. Brotvn, (Robert A.), iii. U. C. R. 290. J^ote payable to bearer and indorsed '—Liability of indorser.'] — 13. A. makes a note payable to B. or bearer, and delivers it to B., B. indorses to C, the holder sues B. on his indorsement: Held, that upon such indorsement, an action would lie against B. Booth v. Barclay et al., vi. U. C. R. 215, and Scott et al, v. Douglass, Trin. Term, 6 & 7 Wm. IV. J^Tote payable to bearer — Indorser before delivery to bearer.] — 14. Wiiere A. made a note payaiiie to B. or bear- er, and C. indorsed it as a surelv to B. without B.'s indorsement: Held, thai B. could not recover on the note against C. as a maker, or on any other ground. Thew v. Adams, Hil. Term, 3 Vic. [iSee case 24, infra.] Effect of maker^s signature being made after indorsetnent to holder,] — 15. It is no objection to the validity of a nove, tliat at tlie time it wa.< indorsed to the jilaintilfs it iiad not in fact been signed by the maker ; the subsequent filling up of the maker's name, or of the amount, or of a payee's name, will be treated as if made before the in- liorsement. Rossin et al, v. Mc Carty ct al., vii. U. C. R. 100. What put in issue by the pica " did not indorse manner, ^-c" — An in- dorsement i^ note tvhen over due, no excuse for non-prcse7it}ue?it to maker,] 16. A. the indorsee of a note sues B. the indorser, and alleges in his decla- ration, that after the note became due, to wit, Stc, B. indorsed to A. — There was no averment of present, ment to the maker, or of notice of non- payment. — B. alleges that he did not indorse the note in manner and form as the plaintilV alleged : Held, that under this plea, the fact of indorsement and not the time, was all that was put in issue. Held also, that the note being indorsed to the iilaiHtilfwhen over-due, was no excuse for non-presentment to the maker, and that therefore the de- claration was bad, in not shewing a suf- ficient cause of action. Held aho,t\\a.t although the declaration was substan- tially defective, yet as the plaintiff had l)een non-suited upon the insufficient ground of not proving the time as well as the fact of indorsement, the non- suit must be set aside ; the court how- ever, in such a case, may grant a new trial without costs, and then allow the plaintiff to amend. Davis v. Dunn et al,, vi. U. C. R. 327. Averment of joint and several lia- bility, under 3 Vic,ch,H.]—n, The defendants were sued as maker and indorser of a note, under the statute 3 Vi:-,. ch. 8. — The declaration, after setting out the note and indorsement, stated the defendants' liability thus — " whereby the defendants became lia- ble, &c.:" Held, on special demurrer ^i1 BILLS AND NOTES. BILLS AND NOTES. 91 I: declaration bad, in not alleginc;, accord- ing to the form in the act, a joint and several lituiihty. Nurdheimcr et td. v. O'ReiUy tt aL, vi. U. C. R. 4.13. Indorsement by uife.'] — IS. Sembh: That a defendant's indorsement made by his wife, though in her own name, and proved, as in tiiis case, to have been at\erwards recognized by the de- fendant, would make him liable to an action on the l)ill. Ross et al. v, Codd, vii. U. C. R. (i-t. The effect of a 2>rior endorser of a note /feiiiir made executor by the holder. '\ — 19. A. makes a note puyable to B. or order, B. indorses to C. who indors- es to D,, D. the holder dies, leaving B. one of the executors — the executors of D. sue C : Held, that D. having made B. his executor, B. was dis- chai-ged from *!ie debt, and that there was no remedy against the sul)sequent indorser. Sernble : That though under the authority of Bishop v. Hayward, 4 T. R. 470, where a plaintiff suing in his own name is liable over to the defenilant by reason of a prior indorse- ment, he cannot recover; yet, if he sue with others, not in ids own name, but as an executor, he may. Jenkins et al. v. McKcnzie et uL, vi. U. C. R. Liability of indorser after draivee has refused (iccei)tanf:e.'\ — 20. The indorser, like the drawer of a bill of exchange, is liable to the holder the moment the drawee has refused ac- ceptance. Ross et al. v. Dixie, vii. U. C. R. 4-14.. Second indorser paying note and afterwards suing a prior indorser thereoii.l — 21 . A second accommoda- tion indorser who has paid a proniis. sorj' note discounted at a bank for the benelit of the maker, may maintain an action on die note against a prior ac- commodation indorser, and may in- dorse it over al'ter it is due. Breeze V. Baldwin, Hil. Term, 7 Wm. IV. Rencical note not used as such — Liability of indorser thereon.'] — 22. A promissory note which had been intended as the renewal of another note, but which had not been so used, but had been left in the maker's hands with an indorser's name upon it, and was received by the plaintiff from the maker lor a valuable consideration before it became ro- mise.'] — 3. It is not necessarj- in a dec- laration upon a bill or note, alter stating the defendant's promise, to aver his legal liability to pay the bill or note to the plaintifl. Acheson v. McKenzie, iv. U. C. R. 230. [See cases 12, 13, and 14, infra.] Averment of presentment.'] — i. In an action on a promissoiy note, the declaration must aver presentment for payment at the place where the note is made paval)le. Fcrrie v. Rykman, Dra. Rep. 'U. Ant waf< ih)rserhimsell, and the note has become properly given in evidence "under the ''"e Ji'ter the death oi his testator, a pleas of "did not accept," and "did : P'«""^'^ to pay by the executor must not indorse " ' ^^^ stated in the declaration, lb. QMfiTc; Could the alteration in the! Actio7i by accainmodation payee date be given in evidence \uider these ««'«"'«'5 maker on lifting the note.]— pleas 1 (Draper, J. dubitante on this 1J>- Tlie payee of a promissory note point.) Meredith v. Culver et al., v. H'ven in payment of goods sold by D. U. C. R. 218. f the maker, and indorsed by the -. . ^ . ^ r. • ■ ' payee and C. for the maker's accom- Joint aa:eptors-Airrmcnt of joint ^ ^,,^^1 digeountcd by D. at a and several liability.] — 10. The : ,,,,„j.^ maintain an action against plamtifls declare against tl.e il'awer ^j^^ j,^„,.^,^ ^,„ his non-payment of the and acceptors of a bill of cnchangc j,,,^ although he has himself paid it under 100/. in one actiou-theaccep-^,„l ^ •„.; „^,,y „„t^g (to which tors sign as parties jomtly ^^^^^\^' xXxGui^kcvumiVi party) in satisfac- i/fiW,that an averment that the parties i ,.^„^ ^^.j^;^,, ^^^ y, ^^id, and no consi- became jointly and smT«//y liable, IS i,,^,,.^,i^,„ ^^^,. g^^, between the bad on denmrrer. Ihe Bank of Up- „,a,,^., ^..^ ,,i„,, j^,,^/,„^ y, JVwmissory .lote and thereby jiroiiiised to pay B. or order tlic sum of two hundred, louis current money, mcaniiig thereby the sum of two hundred pounds of lawful money of Canada : Held, on demurrer to the declaration for unwarrantably extending the meaning of the word " louis," that the declaration was good. lb. Averment as to time of indorse, menl.] — 24. It is bad on special de- i murrer to aver that he (the maker) I then — to wit, at the time of making this instrument — indorsed, delivered and assigned the same to A., who assigned it to the j>laintirt'. Wallace v. Henderson, vii. U. C. R. 88. Action against indoner — Plea of time to maker.] — 25. A plea of time BILLS AND NOTES. BILLS AND NOTES. 95 « given to the maker of a note In an action acainst tlic indorscr, is bad, un- less it expressly shew that when the time was given the plaintifT was the holder of the note. Cnnuncrdnl Bmk V. Johnslun, ii. U. C. R. 12(). Note jxajalde to m(iker''s mvn order. IIoiv to be ihclarcd on.'] — 26. A note payable to the makcr\s oim order may be declaied ou as a note payable to the bearer i but to deelarc npon such a note that he (the maker) made an instrume^it in uritiui^ i)romising to pay to his onii order, would be bad. Wtdlaec v. Iltndcrson, vii U.C.R. SS. Indorsee as;alnst maker — Plea of satisfaction by maker to payee — De injuria.] — 27. In an action by an indorsee against the maker of a note, a plea of satisfaction by the maker to the payee after the note became due is well traversed by the replication of de injuria (Robinson, C. J., dissen- tiente). Muttlebury et al. v. Hornby etal.Vx. U. C.R. CI. [Upheld in Bmuke v. McCauflaml, vi. U. C. R. 10-1, iti which payment was pleaded before the r.oie became due. — Robinson, C. J- , dissentienle in that case also ] Speci(d traverse of plaintiff not being the oiener — Replicntion — De- murrer.] 28. To an ac^tion on a note by the i)ayee against the maker, the defendant jtleaded that before the com- mencement of tiie suit, iVc., the plain- till' indorsed to A., who then became the holder of tiie note, and to vvliom therefore the plaintiff was liable — the plaintiff replied by re-atfirming that he was the holder of the note, and specially traversing that A. was the holder, as the plea asserted — the de- fendant demurred : Held, replication good. Dickenson v. Clemow et al. vii. U. C. R. 421. Holder v. Maker — Plea of special agreement %vhcn note made.] — 29. Where, in assumpsit by the holder of a promissory note payable to A. or bearer on demand, the defendant pleaded an agreement between A. and himself, at the time the note was made, tiiat it should be held by A. as a security for the settlement of their future accounts, and that it was retained by A. aft;stajf\ v. U. C. R. 588. Compictation on foreign bills.'] — 6. A foreign bill may be referred to the master for the computation of the prin- cipal and interest, and ten per cent, damages uniler the provincial statute. Commercial Bank v. AUc7i ct al. Trin Term, 1 &: 2 Vic. 5 "Wm. IV. cJt. 1 — Construction of.]—!. The statute ^ Wm. IV. ch. 1 does not apply to parties signinsr notes as joint makers. Sifton v. McCabe et al., vi. U. C. R. 394. Joint debtors — J^otc of one no sat. isfaction of debt.] — 8. The note of one of two joint debtors is no satis- faction of the debt ; where therefore, A. and B. being sued in assumpsit as BINBROOK (TOWNSHIP OF.) 101 jointly liable on the common counts, A. pleaded as to 20Z. of the demand, that B. before action brought, for him- self and A. made msnote to the plain- till" for 20/., which the plaintiff then received and accepted for the 20/. and in ])ai/mcnt thereof, and added that the plaintiff afterwards indorsed this note given to him by B. to persons un- known, who are still the holders there- of and entitled to sue B. thereon : IMd, plea bad. Leonard v. Acheson ctal.,\'\\.\]. C. R. 32. nii2jlicity,Sj-c.] — 9. Tiie plea was also hekl bad as being double, and as at1eiu]nintr to show B. liable to a third party, an indorsee, when the note, as set out ill the plea, was evidently not ne- ixotiablc. lb. BILLS OF LADING. See Carrier, 4, 6. BILLS OF PARTICULARS. See Particulars of Demand. BILLS OF SALE. Sec Fraudulent Deed etc., passim. BINBROOK (TOWNSHIP OF). 1 Wm. IV. ch. 8, 7 Wm. IV. ch. 59, rcmcdijiag erroneous stirveys — Acts not iipplicable to married zvomen."] — Under the statutes 1 W^m. IV. ch. 8, and 7 Wm. IV. ch. 59, passed for the purpose of remedying an erroneous public stuTcy, an inhabitant living in the front concession of the township of Binbrook cannot be dispossessed by an ejectment brought atier a prior sub- mission to arliilration by the husband of a married woman owning land in the adjacent township of Saltfleet — the husband not being the owner of iL'fe;ii te-i ■m 102 BOND. the land, to whom alone these acts apply. Doe dem. Crooks v. Ten Eyck, and Doe dem. Crooks v. Colder, vii. U. C. R. 581. BOARD AND LODGING. See Arrest of Judgment, IO.-Com- MON Schools, 8. BOARD OF ORDNANCE. See Ordnance Department. BOARD OF POLICE OF LONDON. See London (Town of). BOARD OF WORKS. See Arbitration and Award, 1. 10. Service of process. 1 — The Court, although an affidavit was produced tliat there was no member of the board of works residing in Upper Canada on whom a copy of process could be served, refused to allow service to be made on an engineer employed by the board in Upper Canada, or by affixing a copy of the process in the Crown office. Sherwood et al. v. The Board of Works, i. U. C. R. 517. BODIES CORPORATE. See Corporation. 1 •■ BOND. See Absconding Debtor, 12. — Ad- ministration Bond. — Arbitra- tion AND Award, passim. — Ar- rest, I. 1, 28. — Bail, II. pas.sim. Ejectment, VIII. 6. — Evidence, II. 1 ; V. 2. — Frauds (Statute of), I. 3. — Indemnity Bond. — Libel and Slander, III(l), 6. — Limits, II.— Replevin etc, I*, 15. BOND. I. Construction and Operation. II. Proceedings. • I. Construction AND Operation. See Division Court, 5. 6. — Estop- pel, 1. — Indemnity Bond, 1,2,3, 4. — Mortgage, 2, G. Construction of conditions gener- ally.'] — 1. The comlition of a bond must be construed as a whole, and any apparent repugnance m;iy l)e recon- ciled by giving the condition olfect, according to the intent ajjpearing on the face of tlie whole instrument. JYicolls v. Mulill, vi. U. C. R. 415. Construction by intendment. 1 — 2. Where bonds or other instruments have omitted to say expressly to whom the money payable umler them is to be paid, the Court, if this be plain from the context, will, by intendment, supply the words in the particular place they ought to have been. Allenv. Coy, vii. U. C. R. 419. Far conveyance of land — Condition 2)recedent.'\ — 3. VViiere in a bond with a condition to convey land, no time is fixed for such conveyance, but the times for the payment of the purchase money are stated, the payment of the money is not a condition precedent to the execmionof the deed. Wilson v. Dickie, Easter Term, 7 Wm. IV. JVliich party bound to prepare deed."] — 4. The obligor of a bond with a con- dition for the conveyance of hmd, must prepare and tender tiie conveyance, unless the condition bo to convey iiy such deed as tiie obligee shall rc(|uire. Harrison v. Livinsrstonc, Trin. Term, 1 &; 2 Vic, MoHck v. Stuart, iv. U. C. R. 203, and Prindlc v. McCann et al., iv. U. C. R. 228. [Also see case 10, infra.] When bond considered a continuing security.'] — 5. Where rhe defendant agreed to lend the jjlaintill' 2000/., to be advanced as it might be rci|uired, and received from the plaintifl* a con- it , BOND. BOND. 103 veyance of lands to secure the advan- j ces, and gave back a bond reciting the agreement, and binding himself to re- convey the lands on the repayment of the sums advanced, on a curtain day ; and the defendant, before that day, made further advances to 10,000/., and received tinii)er &c., on account to 7000/.: Held, tliat the bond was a con- tinuing sectn-ity, and that the defendant was not obliged to re-convey, on the payment of the 2000/. fust advanced. Wells v. Richie, Easter Term, 2 Vic. Bond for conveyance of hind — Con- ditions prccrdcHt — miction on bond by executors of obligee.']— fi. Wherein debt by executors on a bond to their testator, his heirs and assigns, the con- dition of the bond was, that if when the parties concerned relative to the bond should see cause to survey and divide lot A., then that the defendant should execute a deed of the north- east lialf of the lot to the testator, that the bond should be void ; and the de- fendant pleaded — First, that the tes- tator did not see cau.iC to convey in his life-time ; secondly, that before the defendant or testator saw cause to sur- vey, the testator died; thirdly, that one of the plaintiffs was heir-at-law of the testator, and thiit he did not see cause to survey ; fourthly, that nei- ther the defendant nor the testator in his life-time, nor the defendant nor the plaintiffs, as executors, since the testator's death, saw cause to survey, &c. ; and the plaintiffs in their several replications in answer, alleged that the testator in his hfe-time,&c., was ready and willing to survey the lot, and re- quested the defendant to survey and execute a deed according to the bond, but that the defendant refused : Held, that the pleas were bad, and that the survey and division were not condi- tions precedent to the execution of the deed ; that the executors could well maintain the action, though not named in the bond ; and that the test"i*.or, under the bond, was entided to a con- veyance in fee, and not merely for Hfe. Riittan ct al. v. Rattan, Trin. Term, 3 & 4 Vic. [See div. II. 8, infra.] Bond by collector of toivnship rates — Wfuit arrears of taxes recoverable m an action on.] — 7. A bond given to the treasurer of a district, by the col- lector of the township rates, after the passing of the statute 6 Wm. IV. ch. 2, and before the repeal of the statute o Wm. IV. ch. 8, may be sued upon and a good breach assigned, in not paying over monies collected for ar- rears of rates due five years preceding that for which such collector was cho. sen to act, though the condition that he would collect such rates would not be binding after it had been made his duty by law to collect only those of the current year. McLean v. Shaver et al., i. U. C. R. 189. Bond to sheriff by a party tvhose goods are seized, to deliver them on request — Duty of party under such bond-] — 8. Where a party whose goods are seized under a fi. fa., gives a bond to deliver them to the sheriff on re- quest: Held, that the effect of that condition is merely that they shall be forthcoming when demanded, and that the sheriff cannot insist on the party removing them to any particular place within the district ; and where, in such a case, the obligor had once delivered up the goods to the sheriff, the condi- tion is performed ; and if they be left in his hands, his refusmg to give them up on a subsequent occasion cannot be set up as a breach of the condition. Malloch v. Patterson, i. U. C. K. 261. [See div. II. 6, infra.] Breach of condition in not having ^^duly rendered all accounts which ought to have been rendered'''' — What monies recoverable thereunder.] — 9. In an action on a bond for the breach of a condition, assigned in the words used in the bond, " in not having duly ren. dered all accounts which ought to have 104 BOND. BOND. been rentlercd" — the plainliflT may re- assii;ning breaches, the defendant cra- cover whatever monies the tleleiidant ved oyer and demurred, and the plain- ought to liavc received, thougli no lift' having succeeded on the demurrer, money was in fact received by him. | entered judgment for the amount of Small w. Stanton, 'in. U. C. R. 14'8. jtho penahy in the bond and issued Bond for conveyance ofland-Pre. Ie>^'^<^»ti""- Thedefendanttlien moved to set aside tiie proceedings, but the l)laintiiV had leave to amend, by sub- stiuitinsj; an interlocutory for the final judgment, and entering an award of incumbent on the ol.lit,nn- to prepare ,^'^'''^'|« "^f^*"* t'""^^^ ^"'^u'T''"^ xi... 1-., 1 _„.i i_ I,.. .1. , i.,i:..,.... .,i-!of lurther breaclies, although three paration ofdecd.'\ — 10. Whereby the terms of a bond the obligor was to convey in fee simple to the obligee : Held, that under this condition, it was the deed and to tenilor the deiiverv of, i . , . ,. , - ^ ittotheoblicroo,onliispavinirti>e'ex.i>'^'';"''* ''"'^ ^^^'l>^^'< Irom the cmtry of penses thereui. ; and therefore, a plea ^f'-^»''''^^' Douglass v. Poivell, n. 0. When detiaratlon con lencement of action.'] — -1. Where in debt on bond by the obligor 1o sucii a bona, liiat the obligee did not prepare or tender tiie deed or expenses, was bad. McDon- ald \. Sivitzsinger, v. U. C. R. 312. Bond securing fixed sulnnj to a iitr file j)ayment of money in two in- stalments, only one was due when pro- 7 -/i-n ■.-, K , - y ■ ,ces;5 issued, but the plaintifT assigned sheri//.']-U. A bond given to secure U,^..,^,,^,^ ,-^, ,,„„,^j,,^,/i„,g for payment asheriflacertamhxedsalary,orother-|„j.j^^ ,^.,.^,„^, ^^.^^. ^^^-^^^^ |,^,f^^g vvise,tobepaHlbyh.sdcpiUy .syo,d.:,,^.,.,„,,,^i^,^ Held, that he could as- Foott V.Bullock, IV. U. C. R. +80. , ,^.,, ,,;, ,,.„„,,„,,^ ,,„ ,^^^,j ,,,e„ehes ; and Semhle, in such a case the declaration II. Proceedings. lis the conuneiicement of the action. See Amendment, II. 6 ; III. U.- 1 ^'''''' ^^ '^''^^"■««>«> i'i- 0- S. 310. Arrest of Judgment, 6. — Bau,, Declaration, common conclusion in II. passim. — Bond, I. (). — District hnid being omitted — Plea, non-per- CoiJNCiL, (), 8. — Executor TE.'vc.,\forj)iancc of a condition precedent.'] — II. 6. — Indemnity Bond, ii, et seq. ' :>. To del)t on bond with a condition, Payment, 2, 6. — Pleading, II. 1,'in which it appeared on oy/r that the 3, 33. — Practice, I. 28. — Scire ; common coiiclnsion, "then il.! " ui-- Facias, 6. — Variance, M, 15. — tioii shall be void,"' had bec!, . ''o'l. the defendant ))leaded in nvy'. .cice, non-performaiice of a t^ondi' pre- hutdc^rihed in ttrong «fmc— /f<;^/.-!:-*'^\'^"^' "VV'^' '"'"'1 l"!'^ 'r'"/'-"" An oblii-or who j I 'i"-ly ••'>"<;1>"1^''I, to which the plamtiff Verdict, 11, 12. — Witness, 3 Obligor executing in right name, to be sued.] — 1. called by a wrong name in a bond, but executed it by his right name, must he sued by the name in the bond, Ketcli- um etal. v. Brady, Mich. Term, 3 Vic. JVow est factum — Set off.] — 2. Noii est factum and a set olf may be pleaded together, to debt on bond. Atkins \ ^^^a^ V. Clark et ul., Mich. Term, 3 Vic. Debt on bond — Irregular judgment — Leave given to amend, three years after judgmetit given.]-^3. To debt on bond setting out the condition and demurred geiieiaiiy: Held, that the |>lea was good. Datj v. Spaford, Hil. Tenii,() Wm. IV. Action by sheriff on bond of a party whose goods are seized, to deliver them on re(/uest — Pleadings.] — (5. Where to debt on bond, with a condition (hat feiulaiit should permit or cause certain goods to be fortlicoming at a day of sale, wiien and where the plain- tifl' should appoint, the defendant plea- ded that he did permit and cause them to be forthcoming at a particular place, BOND. BOND. 105 The replication was held bad, tiie un- dertaking being in the altoruative, and it being sullicicut if tiie defendant per- mitted them to he forlhconiiiig. 31il- ler V. Hamilton, Hil Term, 4 Vie. J^Teccssitij for repliaitioti behiii; disjunctive in its tvordinerformance or performance of a condition, bad, if the condition be not stated with certainty.'] — 21. Where the plaintiff had bound himself to advance money to A. upon certain conditions, and the defendant had in the same bond guaranteed the plaintiff the re.payment of such ad- vance, the plaintiff in suing the defen- dant upon the bond for the non-fulfil- ment of his guarantee, should set out ^^ BOND TO THE LIMITS. BOUNDARY COMMISSIONERS. 107 with certainty what the conditioiis were on wliicli A. was to obtain the money from him (the plaintifl'), as otherwise, no certain issue could be taken upon the question whether A. had performed the condition or not, or whether the plaintilV }iad done what he agreed to do — viz., to advance the money upon tho conditions agreed upon. The simple averment, therefore, that A. !\ad not kept all the conditions on his part, without statins; what the conditions were, is bad. A. plea also stating that the plaintifl had not kept all the conditions on his part, when it nowhere appearcil what they were, is also bad. Wliere the plaintiff by his bond was cither to " secure or ad- vance" the money, a plea stating that the plaintiff had not " secured and ad- vanced," is had. Wright, v. Benson, V. U. C. R. 249. Action on bond conditioned to pay over monies collected in 184'6, before December of that year — Plea, that mo- nies tocre paid r/iiarterli/, in accordance vdth a by-lttiv.'] — 22. To an action of debt on bond against the collector of a township and his sureties, for not pay- ing over to the treasurer of the distric? all monies that he should collect in the year 184.6, on or before the first mon- day of December in that year, the de- fendant pleads, that by a certain by-law of the District Council passed in May ISiS, it was enacted that the collector should pay his monies to the treasurer quarterly, which he did: Hclel,on de- murrer to plea, plea bad as being no answer to the comlitions of the bond. Babi/ V. Dreio ctal., v. U. C. R. 556. Declaration on bond — Jlverment of breach."] — 23. The plaintiff sues on a bond, sets out the condition and alleges a breach, but not a breach of the con- dition — the declaration is bad on such a case. Cryslcr v. Eligh, i . U. C . R. 227. BOOKS. See Corporation, 1 District Council, 11, 15. BOUGHT AND SOLD NOTES. When to be treated as ein actual sale.\ — Bought and sold notes, like the one in this action, may be treated as an actual sale, though the fact may or may not be that the one party has not at the time a specific lot of the article in his possession, and actually set apart for the particular vendee. Brunskill v. Chumasero et al., v. U. C. R. 474. BOND TO THE LIMITS. See Limits, II. BOUNDARY. See Boundary Line Commissioners, passim. — Ejectment, Vin.21,22. Maintenance (Statute of), 13. Mandamus, 16. — New Trial, III. 3. BOUNDARY LINE COMMIS- SIONERS. See Mandamus, 10. — Trespass, II. oo Jluthority over leaseholds — Jlp- Ijeal.] — 1. Boundary line commission- ers have no authority in cases of lease- holds; and in appeals from their deci- sions, the party appeahng must bring the case before the Court for argument by concilium. Vanelerlip v. Mills, Hd. Term, 3 Vic. Poiver to esfablisli neio concession lines.] — 2. Boundary line commis- sioners have no power to establish new concession lines, varying from those which have existed for upwards of fifty years. Detlor, In re, Trin. Term, 3 & 4 Vic. Power to cause surveys to be made.J — 3. Boundary line commissioners M 1 fm ,r 1 'to m u^m r I 108 BOUNDARY COMMISSIONERS. UUIL,U£R AND BUILDING. have authority to cmisc siii'voys to lie made when tlio l)ouiidanc>< of lots arc in dispute. Osmun v. Ganlcr, llil. Term, 4> Vic. Pmver to establish si(k liiics.] — 4. Boundary line coinmissioncrs liavo no power to establish the side linos be- tween lots which aro at noithor end of| the concession, as the govcrnint; sido lines of the several lots in llic conces- sion. Morgan et al. v. Himpson ct al., Easter Term, 4> Vic. Duti/ in determining side linrs.'] —5. Boundary line coiuniissioiicrs iii| determining the sido between lots, are bound by the rule laid down by 59 Geo. III. ch. It, that such sido lines shall correspond with the eomso of the side lines of the townsliip on that side from which the lots are nmnbcred. Belong et al. v. Striker ct uL, Easter Term, 4 Vic. 6. Boundary line commissioners in establishing the division lines between lots in the same concession, arc bound by the provisions of 59 Geo. III. ch. 14, and must ascertain the true line of the township at the end of the con- cession from which the lots are num- bered, and take the course of that as j the true course of the siilc line which | they are requesteil to establish ; and they must also shew in their awnrd the course of the line run to mark the boundary, and the position of the point of departure, or their award will be defective and void. Caldivcll v. Wright et al.., Easter Term, 5 Vic. Award.l — 7. An award made under the Boundary Line Commis- sioners' Act, 1 Vic. ch. 19, on a sub- ject within the jurisdiction of the com- missioners, in which both parties interested were heard, and which had not been appealed against, was held to be conclusive between those parties. Havens v. Donaldson, i. U. C. E. 371. [The Boundary Line Commissioners' Act having expired in 1842, no proceedings can now M had under it.] BREACH OF DUTY. Set' Attornkv, II( I). passim. — Man- damus, iiO. — Mastkr ajjd Ser- vant, 5. BREACH OF FAITH. Sec Attorney, 11(1), 6. — Counsel, 3. BREACH OF PROMISE OF MAR- RIAGE. See Arrest of Judgment, 7. — Costs, 1(1), 8. BREACH OF THE PEACE. Sec Arrest, IV. 14. — Assault and Battery, 3. — Trespass, II. 20. — * — BRIEFS. See Attorney, 11(1), 1. — Costs,VI. 4: VIII. 11. BROCKVILLE (TOWN OF). Sec Quo Warranto, 1. BUBBLE ACTS. The Bubble Acts 6 Geo. I. ch. 18, and 14 Geo. II. ch. 37, are not in force in this province, and Ijanks char- I tered by act of the Provincial Pariia- I ment could not come within the pro- : visions of those acts. Bank of Mon- ' frculv. Bethunc, Easter Term, 5 Wm. ilV. BUILDER AND BUILDING. Sec Contract, 8, 9.— Lien, 1.— Pleading, II. 14, 32.— Toronto (City of), 1. I i CANADA COMPANJf. CAPIAS AD RESPONDENDUM. 109 BUILDING SOCIETIES. I CANALS. Construction of act 9 Vir. ch. 90.] See Ripf-au C a nai,.-St. Lawrence — Under tlie Vl\\\ scclionor ..'Vic ch. 90, the pivsidont ami IrcjisiP'. i- ol the building sociftios n\iiy hcI! i" tlu'ir proper names wiiliont rui-thcr dt'S( rip. tion. Doc devi. Jinnrick ct ul. v. Cle- ment, vii. U. C. R. 549. Canal. — Wki.i,and Canal. BUYING DISPUTED TITLES. See Maintenance (Siatute oe). CANCELLATION. I. Oi- Notes. See Bills ok Exciiaxoe etc., I. IJ- ; IV.7,10, 19; VII. 14-. II. Of Wills.- Sec Will, 9. BY-LAWS. See Billiard Tables, 1, 2. — Bond, II. 22. — Conviction, 4. — Dis- trict Council, 1G, 17. — LoNnox (Town of), 1. — Toronto (City of), 1, 2. Justices ofthej)eacc levying i^ennl- ties hj distrcssJ] — 1. Whore a AnUiie gives justices of the peace power to make by-laws and impose penalties Cur their infraction, they cannot, unless expressly authorized by the statute, levy such penalties by distress. Kirk- patrick v. Askeio, Hil. Term, 7 Wm. IV. Annexing penalties for infraction ofby.latcsJ] — 2. Where a corporation is empowered by statute to enact l>y- laws and to enforce a penalty ibr tiieir infraction, not exceeding a certain amount, a by-law is bad whicli annex- es a penalty to an olVence, but does not declare its amount. Peters v. T/te London Board of Police, ii. U. C. R. 543. CANADA COMPANY. Service of process."] — Process to compel the appearance of lli(> Canada Company could not be served on the commissioners in this province. Cooj^cr V. T/te Canada Company, Easter Term, 1 Wm. IV. CAPIAS AD RESPONDENDUM. Sec Ami;np>ii'.nt, I. 5, G. — Arrest, I.; III. passim. — Constable, 3,4", f), (). — DowcR, II. 9. — Indorse- ment, I. SlIKUIIT, I. 2, 3. TcstrJ] — 1 . A writ of ca. re. issued in vacation must be tested the last day of the jirccodinij; term. ./lr?nstrongv. Scobell, JNIich. Term, 4 Wm. IV. 2. A bailable writ of ca. re. must be tested in the name of the chief justice, or in his absence, in the namo of the senior puisne judge. Case v. McVcio-h, Trill. Term, 3 &4 Vic.,P. C. iVIacaulay, J. [&0 Ajiendmknt, I. 5.] ■ Irregularity. 1 — 3. A writ issued on the last ilay of one term, but issued on an allidavit made after the first day of the following term, is an irregularity. Westovcr v. Burnhnm, Trin. Term, 3 & •!< Vic, P. C. Macaulay, J. Testatum to Home District,"] — i. It is not irregular to issue a testatum writ of ca. re. to the Home District, as upon an original writ to an outer district. Patterson ct al. v. Calvin et al., i. U. C. R. 409, P. C. Hager- man, J. Setting aside, fm- irrcgularitif — Costs.'] — f). On moliou to set ai-fide a ca. re. for irregularity, costs will be given, although the defendant has asked for more than the Court can I* m Jiil *-yl m- -\ — 110 CAPIAS AD SATISFACIENDUM. CAPIAS AD SATISFACIENDUM. il grant, as that a bail bond shall lie de- livered up when no bail bond has boon given. Annstrong v. Scdtcll, lii. O. S. 303. [The original non-bailiil)lo process, in every case, is now a writ of siimmoiis ; and a ca.rc. is only sued out where the defendant is to be arrested.] CAPIAS AD SATISFACIENDUM. See Amendment, 1. 2, 3 ; III. 14. — Arrest, I. ; II. 13 ; III. passim. — Bail, III. 4, 1 1.— Indorsement, I. Poundage etc., 5. — Scire Fa- cias, 4. Affidavit made in Lower Cnnada."] — li The Court will allow a capias ad satisfaciendum to issue on an affidavit sworn before a judge in Lower Cana- da, whose signature is verified by affi- davit here. Coit v. Wing, iii. 0. S. 439. For costs ofdcfence.l — 2. A defen- dant is entiUed to a writ of capias ad satisfaciendum for the costs of his de- fence. TImmiJSon v. Leonard, iii. O. S. 151. Affidavit — DeponenVs name.] — 3. an arrest on a capias ad satisfaciendum, that several terms had elapsed after the return of the execution a<;ainst snoods before the capias ad satisfaci- endum issued. Glynn v. Dunluj), iv. O.S. 111. Lssue of ca. re. rind of m. sn. after- irards, ivithout a semnilnljidnrit.^ — G. Whore a pInintilVsiied (nit a cnpias ad respondendnin, and witiiout oxtM-uting it took a cognovit and entered com- mon bail and judttnient siiiainst the de- fendant, and arrested him on a capias ad satisfaciendum, without filiiiif a fresh allidavit — the capias ad satisfaciendum and arrest were set aside with costs. Broicn v. Bcthiine, Mich. Term, 6 Wm. IV. Agitinst two defendants after judg- ,nent, though one served in'th non- hfiilnhle ^wocr«s.] — 7. Whore one of two defendants bad been arrested, and the othc served on mesne process, the Court, after judgment, allowed a capias ad satisfaciendum to issue aij;ainstboth, with a direction only to bo executed against the one who had been origin- ally arrested. Mrfnfi/re v. Suther- land ct al., Easter Term, ii Wm. IV. Against a person suffering jndg- Itislnot necessary in an affidavit made i ment of noji-pros.'] — S. A del'endant for the purpose of issuing out a capias ; may, upon the allidavit required for ad satisfaciendum by a plaintiff, who i the arrest of debtors, issue a ca. sa. has two christian names, to state the ! against a plaintilT who has sulfered second, where his identity sufficiently i judgment of non-pros. Johnson v. Smadis, Tay. U. C. R. 174. Bischarge from first ca. sa. under misap2'>rchcnsion — Second not issu- able.] — 9. Where the defendant had been dischar'ied from custody on a writ of capias ad satisfaciendum by the partner of the plaintiffs' attorney, under the supposition that the debt for which appears by the affidavit describing him as the above plaintiff. Perkins v. Con- oily, iv. O. S. 2. After return of devastavit.'] — 4. On a return of" devastavit," a ca. sa. does not issue as a matter of course with- outenquiry. Willardv.Woolcut, Dra. Rep. 211. [Ifan executor plead to an action, and do ;|l'C'l''^''-"''"nt had been arrested had not plead plene adminisfravit, the judgment | been compromised by the acceptance 18 evidence of a devastavit. Palmer v. Waller, j of new securities by the plaintilfs, but 1 M. & W. 689.] I it afterwards appeared that the plain- Jssued several terms after return of \ tiffs had not accepted tlic securities — execution against goods.] — 5. It was j the Court refused to order that a new considered no ground for setting aside writ of capias ad satisfaciendum should I CARRIER. CARRIER. Ill I. ,5 ill' ii be Issued. Bradbunj ct ul. v. Lonci/, Hil. Torm, f) Vic. • JMisnr pnxr.'is set aside — Final pro- cess oil mtr aJ/iff'U'ii.'] — 10. Where a detl'iuljuit liitil lici'ii aiTesteil oil mesne procufis, wliifli was set aside for irreyii. larily, and tiie plaiiifitVarterwards pro- ceeded to jiulLniieiit: Utld, that lie might aL'aiu anestoii a capias ad satis- fafieinluin issued on new atlidavit. Gurdon V. Sommcrvillc, Mich. Terra, 7 Vic, P. C. Jones, J. Riifhts and duties of deputy clerks of the crown vjkj/i issitinif alius writs of J] — 11. An ;iiias wni of capias ad satisfaciendum may lie issued hy a deputy cleik oftlie erown in an outer district ; and it is no ground for setting aside such writ that the deputy has not transniitled the allidavit and pru.'- cipc for tlie capias ail satisfaciendum, within one month after tiiey were filed, totheprinci|)!d ollice, according to the statute. Scutt, it al. v. Macdonald, Mich. Term, 7 Vic. On afjiduvil Jihd before Insolvent Act.^ — 12. A writ of capias ad satis- faciendum cannot be issued since the Insolvent Act upon an allidavit filed under the former law, at the com- mencenient of tiie suit. Seioell v. Dray, ii. U. C. R. 179. Necessity of staling amount of debt.^ — 13. A capias ad satisfacien- dum, commandintr the sheriff to detain the defendant iu custody until he should satisfy the plainlill', witlu ut stating the amount of debt to be recovered, is void. Henderson v. Perry et al., iii. U. C. R.252. CARGO. See Caurier, 10, 11. CARRIER. See Assumpsit, II. 8. — Demurrage, 1, 2. — Venue, 8. Forwarder.'] — 1 . A for\varder is a common carrier, and not liable for losa arising from the act of God or tho Kini,''s enemies. Smith v. Whiting, iii. O. S. 5!)7. Liability of otcners of a vessel, for the loss of liin'tly lel'i to the jury to find wlieliier the dcreiidiiiits received the goods only as \\arelu)ii>i'nien until the opening of tiie navii^ation, or whether tlieir liability as caniers eoni- menced li'oiu the moment of their i-e- ceipt, and it not having been so left to them, the Court granted a new trial. Ham V. McPhcrso/i, et uL, Easter Term, 5 Vic. [See case 12, infrn.] Construction of llh of lmliii; II. 38; VI. 1. Agreement by trustees tvith teac/ier.'] — 1. Under the common school act, 7 Vic. ch. 29, the trustees of any school district might make a valid agreement with the teacher of the school for the district, to give him the whole allow- ance appropriated for such school dis- trict for the year when that act came into force, if the teacher served for three months. Darby v. Earl, iii. U. C. R. 6. Parties to sue for a trespass — Master or trvsteesJl — 2. Under the 44th section of the 7 Vic. ch. 29, the trustees of the school, (and not the school maste.'), should be made the plaintiffs in an action for a trespass to the school house, unless, at least, it can be shewn that the trustees have given the school master a particular interest in the building beyond the mere liberty of occupying it during the day for the purpose of teaching. Monaghan v. Ferguson et al. iii. U. C. R. 484. County superintendent signing a contnvct with a teaclier not a contract- i)ig party.'] — 3. A county superin- tendent of common schools signing, to- gether with trustees, a contract with a teacher, will be considered to have signed the same only as approving of the appointment, and in pursuance of the direction of the statute, and not as a party contracting with the teacher. Camj)bell v. Elliott et aZ., iii. U. C. R. 241. Breach of agreement to furnisk fuel to a teaclier — Action — Pleadings — Averment of request, time, and place — Personal liability.] — 4. The plaintiff charged the defendants upon a special agreement stated to have been made by them as trustees, to furnish with fuel when required the plaintiff, a school teacher, under the act 9 Vic. ch. 20. To this declaration the de- fendants demurred upon two grounds: 1st, because no request with time and place had been laid in the declaration to furnish the fuel ; 2nd, because the defendants having made the agreement stated in the declaration in their cor« porate capacity, were not liable as in- dividuals, but had been so charged in the declaration. Held, declaration bad upon both grounds. Anderson v. Vansittart et al., v. U. C. R. 335. Scltaol trustees not personally liable on their contract.] — 5. School trustees acting under the statute 9 Vic. ch. 20, cannot be sued as individuals upon any contract made by them under the Hi M $''n «>•»■ r I 123 COMMON SCHOOLS. COMPOSITION. Statute as tnif^tpcs. Sheriff' v. Patter- son et III., V. U. C. R. 6*20. Action Inj trachir aizainst trustees — Averment of u'j^recmeut-CorjMjriitc seal.'\ — 6. In an action of assumpsit brought by a teacher against the school trustees appointed by the act 9 Vic. ch. 20, setting out a special agreement to retain the plaintifl' in the employ- ment of a teacher for one yeftr, from &c., at a certain salarj' &c. ; and also on a special action on the case, founded upon a parol agreement, brought by the teacher under the same statute, for wrongfully, and without cause, turning the plaintiff away, and preventing him thereby from earning his salary : Held, that the declaration in both cases was bad in not averring the agreement to have been made with the defen- dants by their corporate seal. Qi/inn V. The School Trustees, vii. U. C. E. 130. Teacher — Tayment — Mandamus or special action.^ — 7. If the school trustees appointed under the act 9 Vic. ch. 20, decline to sign the order upon the superintendent for the payment ol the teacher's money, as provided for by the act, ihey may be proceeded against by mandamus, or perhaps they may be sued in a special action for not making the order ; but they cannot be sued in an action for the money, as that is not in their hands. lb. Trustees fituling fjoard and lodging for teacher.] — 8. Semhk: That the school trustees have no power under the act to make an agreement for pro- viding the teacher with board and lodging, lb. Powers of superinteiulent.^ — 9. A township sui)erinten(lent of common schools, appointed under the act 7 Vic ch. 29, since repealed by the act 9 Vic. ch. 20, sec. -i.'), has no legal au- thority to sue the collector of the township for moneys received by him, not in the nature of 2^enallies. Shir- ley V. Hope, iv. U. C. R. 240. C »MPANIES. See Bank of British Nohth Amer- ica. — Bank OF Upper Canada. — Bills of Exchange etc., II. 8. — Board of Works. — Building So. ciETiES. — Canada Company. — CoBouRG Harbor Company. — Corporation, passim. — District Council. — Gas Companies. — JoiM' Stock Company. — Kings- ton Marine Railway Company. Midland District Turnpike Trust. — Niagara Harbor and Dock Company. — Ordnance De- partment. — Port Burwell Har. BOR Company. — Port Credit Harbor Company. — Rideau Ca- nal. — St. Lawrence Canal. — Toronto and Lake Huron Rail- road Company. — Welland Ca- nal. comperuit ad diem. Sec Bail, III. 13. composition. Evidence to supjtort plea o/".] — To an action on a note brought by the indorser against the maker, the defen- dant pleaded that while A. was the holder of the note he compounded by a general agreement with him, (A.) and all his other creditors at 10s. in the £., which composition wa."! af- terwards paid to A. in satisfaction of ihe note and accepted, and that the note was indorsed to the plaintiff after it became due. Issue was taken on the plea by the replication de injuria, and the evidence at the trial was not a general agreement of the defendant's creditors to accept a composition of 10s. as pleaded, but merely the fact that the defendant having become in- solvent had paid to some of his ere- ditors one rate in the pound, and to other creditors another rate: Held, that the evidence did not support the if o e CONSENT RULE. plea, and that a verdict on the leave reserved should be entered for the plaintiff. Forstcr v. Bcttcs ct nL, v. U. C. R. 599. CONSTABLE. 123 COMPUTATION. I. Of monies on reference to the Master. See Attorney, IV. 4. — Bills of Exchange etc., VIII. 6. — Inter- est, 2. — Practice, II. 8. II. Of time in different proceed- ings. See Attorney, III. 1. — Notice op Action, 14. — Notice of Trial, 5. Practice, I. 15. CONDITION. See Bond. CONDITIONAL LIMITATION. See Estate, 5. CONDITIONS OF SALE. See Auction, 1, 3, 6. CONDITIONS PRECEDENT. See Bond, I. 3, 6. — Covenant, 1. 4. Payment, 7. — Pleading, II. 16, Stay of Proceedings, 2. CONFESSION AND AVOID- ANCE. See Pleading, IV. CONSENT RULE. See Ejectment, IV. CONSIDERATION. See Agreement, I. 2. — Assumpsit I. 12, 13, 14, 15 ; II. 1.— Bills OP Exchange etc., I. .T; VI. — Con- tract, 2. — Corporation, 5. — Debt, 4. — Ejectment. VIII. 15. Fraudulent Deed etc., passim. Goods Sold, 9. — Guarantee, 3, 4. — Lease, II. 3,4. — Money had A NO received, 6. — Onus Proban- Di, 7. — Pleading. 11,42, 43,44. — Stock Notes, 1, 2. — Verdict, 10. Witness, 16. CONSOLIDATING ACTIONS. The Court granted a rule for con- .sjlidatinj; several actions brought on a bond to a sheriff for the gaol limits. Leonard v. Mcritt, Dra. Rep. 199. CONSPIRACY. See Case (Action on the), S. CONSTABLE. Necessity of inserting in the mar- gin of his 2^fea, " by statute.^^'} — 1. A defendant sued in trespass for false arrest, and intending to urge in his de- fence that he arrested as a constable, and that the action against him was brought in a wrong county, will not be entitled to do so if he has omitted to insert in the margin of his plea " by statute," unless the Court can say upon the facts proved at the close of the plaintiff's case, that the defen- dant was acting as a constable. Broion V. Shea, v. U. C. R. 141. Acting without authority in a civil j^rocecding.'] — 2. Scmble: That a constable in a civil proceeding has no color or pretence for acting without authority specially given by some pro- cess, lb. 3. Queere: Is an attachment of privilege within the ninth clause of P 1 M in : S ? 1- it% Bl ^ 5S 'I \^ I ' I - ; I t P 124 CONTINGENT REMAINDER. CONTRACT. •'I 2 Geo. IV. ch. n and C^uere : Would this doubt, or the want of an affidavit being annexed to a bailable process, prevent the defendant, a constable, from having the benefit of the 21 Jac. I, on the point of venue above men- tioned? 16. Duty of, on making arrest.'] — 4i. A constable who arrests under a com- missioner's writ may refuse to take bail, and if he do take bail, the sherilT may reject them, as the constable's duty under such a writ is only to de- liver the defendant to the sherifl'j but if the sheriflfl^ccept the bail, the bond is good. Price v. Sullivan ct al., Hil. Term, 7 Vic. Arrest by, umler commissioner'' s writ, when legal.] — 5. An arrest by a constable on mesne process directed to the sheriff, is not legal by the act 2 Greo. IV. ch. 1, sec. 9, unless the alfi. davit of debt be annexed to the pro- cess. Ross et al. v. Webster, v. U. C. R. 570. Duty of constable after arrest on Stick ivrit.] — 6. Semble: That a con- stable may legally allow a debtor whom he has arrested to go at large, so ling as he afterwards, and before tho roiu • i of the writ, deliver him to the shenif. 2b. CONTINUANCE OF WRITS. See Process, 5. CONSUMERS' GAS COMPANY. See Gas Companies. CONTEMPT. See Arbitration and Award, VI (1), passim. — Attachment, I. ; ill. 2.— Escape, 11, 12, 13, 14, 15. — Limits, 1. 1. — Magistrates, 2, 3, 4. — Parliament, 1. — Sher- iff, I. 18 ; II. passim. — Subp(ena, 2, 3.— Warrant, 3, 4. CONTINGENT REMAINDER. See Estate, 5, 9. CONTINUANCE ROLL. See Evidence, IV. 1. CONTRACT. Sec Agreement. — Assumpsit. — Common Schools, 1, 3, 8. — Cor. poration, 4, G, 7, 11. — Debt, 4. District Council, 3, 11. — Dis- trict Court, 7, 9. — Evidence, I. 4 ; VIII. 5. — Executor etc., I. 11. — Frauds (Statute op), I. 2, 3, 4, 5, 6. — Money had and re- ceived, 7, 11, 14. — Ordnance Department. — Sunday. Prochiction of, when necessary. J — 1. Where there was a written contract fixing tlie price of certain work : Held, that in an action to recover compensa- tion for such work, the contract must be produced. Wallace v. Mason, Easter Term, 6 Wm. IV. Joi/tt contract — Statute of Limita- tions.] — 2. Where in consideration of the sale of a vessel tj A., B. joined with him in an agreement to deliver lumber : Held, that this was a joint contract, although B. was only a surety, and that it was not therefore necessary that the consideration should appear on the face of the agreement ; and that the promise of A. was sufficient to take the case out of the Statute of Limitations as against B. Thwyipson ct al. V. Cummings, Mich. Term, 4 Vic. Misrcpresentatimt .] — 3 . Queer e : Can a misrepresentation avoid a con- tract, without its being fraudulently made ? Lacey v. Spencer, iii. U. C. R. 169. Evidence — Joint contractors.] — 4. The plaintiff proceeding upon a note against several defendants as joint con- CONTRACT. CONTRACT. 135 tractors, chargeable on the samt^on- tract and in the same capacity, must prove a case against all of them. Hif- ton V. McCahc.ct uL, v. U. C. R. 394.. Dcwition — Implied (i])jvovnl.'] — 5. Where the defendant had ordered the plaintiffs to make for him some iron castings of a specified thicknsiss for a shop front, and the plaintiffs made them much thicker tlian the order ; but the defendant, notwithstand- ing, allowed them to be put up in the building for which they had been made, without objection ; the plaintiffs, at Nisi Prius, obtained a verdict for their full value — the Court refused to grant a new trial. Good ct al. v. Harper, iii. U. C. R. 67. Construction of contract — Devia- tion.'] — 6. The defendants are taken by the plaintiff to a quantity of timber already made upon the {fround ; having seen the timber they contract with the plaintiff to dravy it out, and well and truly to deliver it to the plaintiff on a bank of a river : Held, that the timber cut in two by the defendants to suit their convenience, and without the permission of the plaintiff, and drawn out to the river in that altered state, was not a delivery within the mean- ing of the contract. Reynolds v. Slm- tcr et al., iii. U. C. R. 377. Sale oflamls — Deceit — Statute of Frauds!\ — 7. Before the defendant can be charged with deceit in a con- tract, he must be shi'\vn to have enter, ed into a contract such as is required by the Statute of Frauds, and to have clearly practised or intended tiie de- ceit alleged against him. Irving v. Merygdd, iii. U. C. R. 272. Endra iDork.l — 8. Quare: As to what is extra work under a contract, and extra vxnrk beside a contract] Ritchey v. The Bank of Montreal, iv. U. C. R. 459. 9. Held, that under the agreement and facts proved, (as given in the re- port), the extra work claimed for by the plaintiff, must bo considered not extra work done under the contract as part of the original undertaking, but as work done under a sul)sequent new ngroement, wholly deviating from the former contract, and which could not be, in any sense, regarded as work done upon the terms of ^he original contract, either as to time or mode of payment ; and that the plaintiff might recover for su<'h work under the account stated. Watson V. O'Bcinic, vii. U. C. R. 345. Construction of contract as to lia- bilit ij of 2^artics.\ — 10. A. contracts with a company to make a highway — B. becomes security to the company for the fulfilment of A.'s contract. — A. then employs C. to cut out certain timber for him, at a stipulated price.— A., while C. is engaged in cutting out the timber, fails in his contract with the coi.ipany. — B., the surety, upon A.'s failure, tells C. to go on with his work and he will see him paid. — Upon completing his work, C. sues A. and B. jointly : Held, that under these facts there was no joint contract by A. and B. with C, but that A. was primarily liable on his contract, and B. secon- darily liable as a guarantee. Nichols V. Ki?ig et al., v. U. C. R. 324. Whether a party contracting islia. hie personally, or as representing a conqHiny.'] — 11. The plaintiff sued the defendant for lumber furnished on the occasion of the Provincial Agricultural Society's meeting at Hamilton. — The defence was, that the Society, which was an incorporated body, was liable, and not the defendant personally. The learned judge at the trial left it to the jury to find upon the evidence whether the defendant had contracted with the plaintiff personally, or as one of a committee of gentlemen who undertook to superintend — in either of which events, he held him to bf. personally liable ; but the jury were told, that if he contracted only as representing, or on behalf of the corporation, that then he would not be personally liable: i?' i'. .■■: 126 CONTRIBUTION. CONVICTION. Held, on motion for a new trial, the ' verdict being for tlic plaiiitill", that the j ruling of the learned jiidiro at the trial : was correct. SimjKo/i v. Carr, v. U. C. R. 326. Contract for vorh at a, fixed .vt m — Subsequent aiireement to lair ante tJwrefor.'] — 12. Wiiere a jilaintifl" con. tracts to receive for work done, at I'ts completion, a certain sum of money, and then agrees to accept from the de- fendant the promis-ory note of B. for the sum, if the note Jje not delivcri'ii he may sue for the money. Fislier j V. Ferris, vi. U. C. R. 534. Tender of note. "] — 13. If the note be not tendered at the time spccilietj, a subsequent tender of the note and refusal will be no defence to such an action, lb. Lumber trade — Liability of jyar- ties.'\ — 14. A. was cutting timber on B.'s land. — B. refused to allow him to cut it, unless C, the party who was to get the timber wher cut, should lie- come answerable to A. for it. — C. agreed to become so, and A. was pcr- mitied by B. to take away the limber. It was further agreed between B. and C, that upon the timber being passed at Bytown free from duties to tlie government — that is, passed as jirivate timber — B. should be paid by C. the price the government would have paid for it had it been crown timljer : Held, that upon this verbal agreement, B. could sue C. upon the common count for goods sold and delivered, when the time arrived for passing tlic timber through Bytown. And also, that upon a sale of the timber at Queliec, C. might be liable to B. on the common count for money had and received. McNab V. McGill, vi. U. C. R. 142. tenants, in assumpsit, who has paid the whole amount of the damages under an executi(m, is entitled to re- cover contribiitiou irom the other de- fendants ; and in an action for such contnl)ution, the regularity of the judg- iiHMit in the original action cnnnot be (jiiestioned ; and it is not necessary to shew any notice of execution, nor de- mand of the money, before action brontrlil. Woodrnf)' \. Ulassfird, iv. O. S: 155. Aii'((rd a^ai//st two — Remedif of tlic oar paying the vliole.'] — 2. When an award directs two ])arties to pay each a certain sum of money to a builder, and one is obliged to pay the whole Irom a refusal by the other to pay his share, the })ar1y so jiaying can comjiel contribution by suing the other in covenant for non-|K'rl'ormance of the award. Allen v. CV)//, vii. U. C. R. 419. CONVICTION. Hce Appeal, 1. — Indian La.vds, 1. Magistrates, 13. — Waruant. CONTRIBUTION. Assumpsit — Remedif of one of sev- eral, defendants, vho has 2>(iid the uMe dcbt.ll — 1. Ono of several de- For selling sjnritu.ons lirjnors tnth- ont Hi ease.'] — 1. A conviction under 40 Geo. III. chapter 4, for selling s])irituous licjuors \\'^thout license, was (juashed, because the information sta- ted that '* the delt'udant was in the habit of selling spirituous liquors with- out license," without charging any special oll'ence, and not shewing time or place, nor that the licpiors were sold by retail ; and also, because the convic- tion directed the deli-ndant to pay the costs of the execution, without sjieci- iVing the amount. Ilex v. Femnson, iii. 0. S. 220. When a defence to an action of tresp(tss.'\ — 2. A C(mviction, bad upon the face of it, aitl'.ough not quashed : IJetd, not to be a suHicient defence to an action oftrcsjjass. JJrigqsv. SpHs' /wry, Tay. U. C. R. ()08. ' [See Eiutman v. Ikid, 8, infra.] CONVICTION. CONVICTION. 127 Amefubne?it.']—3. A conviction, | conviction was made. Wilson v. Gray substantially dofective, cannot be amen, j Ud ct uL, v. U. C. R. 227. ded. Jicgtna V. liuss, Hil. Term, 3 j If firsL defective, jiisticesTnay flea Vic. i scto/i^/.] — 7. Scndke : That alter the Umler by-law.'] — 4. A conviction, lirst conviction has been returned to under a bv-'law must shew tlie by-law, the Quarter Sessions and filed, the that the Court may judge of its sulli-' justice, if lie think it defective, may 10., Mich." Term, 3 Vic. file a second. lb. ciency Conviction for tmhmfidly rcceiv' ]\Iaf:i.strates justifying, must fus- ing tolls— Li fonmditics.']—b. The ' tify under a legal conviction, ft'-]— foUownig conviction before magistrates, H. A magistnite, in order to have a *« for that the defendant did, at, A:c., ' good justification under a conviction on or about the first day of December, and warrant, must give in evidence a and upon other days and times before \ conviction not illegal on the face of it, and since, take and receive toll from and a warrant of distress supported by the informant, at toll gate No. 3, situ- ! that conviction, and not on the face of ate on the macadamized road between ' it an illegal warrant : Held, therefore, Hamilton and Brantford, in said dis- that a magisliate's conviction, « for trict, unlawfully and improperly, the \ wilfully damaging, spoiling and carry- said gate not being in a situation or lo- j ing away six uusli'Ms of apples of the cality authorized bv law," beins moved the said Rogers,' " did not support a into the Court of Queen's Bench by ; warrant which recited " that whereas certiorari, was held bad, in not shev- 'judgment was given against Jonathan ing that the defendant Was summoned ' Eastman, of, A:c., in a suit, Rogers or was heard, and in not setting out; v. Eastman, for a misdrmeanor, in the evidence, or stating that any Mm- ', taking apples by force and violence plaint was made, or evidence gi v m by ' oflT and from the premises of the said any one on oath, in not statin;, how ; Rogers, iVc; much toll was taken, and in not shew- ing in what respect the taking o'" toll was unlawful. lieginav. lirown iv. U. C. R. 14.7. these are therefore to authorise, i\:c.;" and also, that neither the conviction nor the warrant con- tained a statement for an olTeiice for which such a conviction could take place. Eastman v. licid, vi. U. C. [See case 9, infra.] For sell ing spirit tious liquors by retail, witiiout lice/isc.l — G. Held,\^ Omissions vhirh render a convic- that the following conviction for selling ; lion bad.] — !). Held, that a conviction spirituous liquors by retail, contrary to was bad in omitliiig — 1st, any state- the law, " that A. of, iVc, merchant ment of the information ; 2ndly, the and shop-keeper, did, within the space summons and ajipearance, or default if six calendar months now last past, of the accnsi-d; 3rdly, his plea, deny- in the year aforesaid at, Arc, vend and ing or confessing ; 4.thiy, the evidence, sell a certain quantity of spirituous] jl/,so, in not shewing that any toll was liquors in less quantity than one ipiart, ; claimed, or what toll, or how imposed, to wit, one pint, iVrc, without license , by reason of the completion of the for that purpose previously obtained, road or any part of it. yl/.sw, because contrary to the form of the statute in ; it did not appear therein that the de- such case made and provided," was fondant had proceeded on the road bad in substance, in leaving it doubtful i with any carriage or aninud liable to under which of the statutes (40 Geo. pay toll, and after turning out of the III. ch. 4, 4 Wm. IV. ch. 18, 4 Geo. i road had returned tj or re-entered it IV. ch. 19), and for what oll'ence the] with such carriage or animal beyond a m 128 CORPORATION. toll-gate without paying toll, whereby payment was evaded. — Regina v. Haystead, vii. U. C. R. 9. CO-PARCENERS. See Account (Action of), 3. — — « — CORNWALL CANAL. See Arbitration «fc Award,IV(3),7. CORONER. See Jury, 10. Poundage.'] — A coroner is not en- titled to poundage on an attachment against a sheriff. Duggan, Lire, ii. U. C. R. 118. CORPORATION. See Bank or British North Ame- rica. — Bank of Uppf.r Canada. Building Societies. — Canada Company. — Costs, 1(1), 18. — District Council. — Distringas. Ejectment, IV(2), 6. — Gas Com- panies. — KiNfi's College.-1\Ian- DAMUs, 5, 13. — Niagara Harbor and Dock Company. — Ordnance Department. — Religious Socie- ties, 3. — Toronto (City of). Right of slnchholdcr to inspect the stock books of a hank.] — 1. A stock- holder is not entitled, as a matter of right, to inspect the stock book or other books of a bank. Ihink of Upper Canada, In re, Dra. Rep. .^)7. Action by corporation — Breach i)t. private capacity — Kon pros^ — 2. The declaration at the suit of a corpora- tion named the individuals composing it, and also described them in their corporate capacities. Tlie breach was in their names, as individuals only. — CORPORATION. The Court held that a non pros, might be signed and execution issue against them in their private capacities. Mark- land ct al. V. Dtdto7i, Tay. U. C. R. 1.56. Right of foreign corporation to numitain. an action on notes hereJ]— 3. A foreign corporation, such as a bank, cannot maintain an action upon promisi-ory notes received and dis- counted by them in the course of banking business in this province, al- though they may maintain an action for money had and received to their use, against the person for whom such notes were discounted and to whom money was advanced upon them. Ba>Jc of Montreal v. Bethune, Hil. Term, 6 Wm. IV. Assumpsit against^ — 4. Where a corporation had entered into a con- tract under seal with the plaintiff for the performance of certain work, which was afterwards departed from by their orders with the consent of the plaintifl": Held, that assunip'i'.t would lie for the value of the work done under the sul)stituted contract. Davis V. Grand River Ncmgation Com- pany, Mich. Term. 2 Vic. Assinnpsit Inj, on an exeaftory con- sidrratio?t.] — 5. A corporation may maintain assumpsit on an executory as well as on an executed considera- tion, where the contract is in the usual course of business. Kingston Marine Ediliray Coinjmny v. Phillips, Mich. Term, 3 Vic. Agreement itnth. — DepoTtnre on their p)aft — Actimi against.} — 6. Where the plaintiff made an agree, ment with a Harbor Company for the admission into their harbor of certain property of the plaintiff's, for a fixed sum, less than the amount of toll to •.vhich they might have been entitled under theircharter, but they afterwards refused to allow the property to be removed without the payment of their usual harbor dues : Held, that the plaintiff might maintain an action for CORPORATION. COSTS. 129 money had and received to recover ' back the overplus. March v. Port Hope Harbor Company, Hil. Term, 4 Vic. Contract not under seal.l — 7. Scmhle, that a municipal corporation may contract to hire a clerk or servant to render service in the ordinary busi- ness of the corporation, without using their corporate seal, and such servant may sue on the contract. Raines v. Tite Credit Harbor Company, i. U. C. R. 174. Wcish-mastcr of the City of To- ronto — recovery of salary vjnn wrong- ful dismissal.] — 8. Tlie plaintiff had been appointed many years ago, by the corporation of the city of Toronto, weigh-master and clerk of the fish- market. He had been voted each year by the common council a sum of money for his services during the then current year. The municipal year began on the 23rd of January. For the year 1847, the plaintiff had been voted 90^. for his salary. On the 30th June 1848 the corporation having determined to farm out the plaintiff's office, he was dismissed without notice, and without any allowance being made for his services between January and June of 1848. The plaintiff brought an action of assumpsit against the cor- poration to recover a year's salary at the same rate as had been voted him the previous year. The corporation resisted the action upon the general grounds: 1st, that assumpsit for ser- vices rendered as upon an executed contract not under the corporate seal, would not lie. 2ndly, that the plaintiff held his office at sufferance, both as respected tenure and allowance. 3dly, that before action brought, the corpo« ration should have been requested to vote an allowance ; but Held, that assumpsit would well lie ; and that though the plaintiff, holding hi.s office during pleasure, by the act of incorpo- ration, could not recover the whole year's salary for 1848, still he was entitled to his salary for 1848 to the time of his dismissal, at the rate of salary voted to him for 1847, and that no previous demand upon the corpo- ration to vote an allowance need be proved. Dempsey v. TJie City of Toronto, vi. U. C. R. 1. When Court prevented from no- ticing want of legal authority for suing in corjiorate capacity.] — 9. Where the defendant pleads oyer and takes no exception to the declaration, the Court cannot take judicial notice of the want of legal authority in the plaintiffs to sue in their corporate capacity. JBank of Bntish North America v. Shencood, vi. U. C. R. 213. Proof of seal.] — 10. Where a wit- ness stated that he had good opportu- nity, which he described, of observing and knowing the seal of a corporation, and that he believed the seal to be their seal, both from the impression itself and from seeing the signature of the party whose handwriting was at- tached to it, with whose handwriting he was acquainted : Held, that this evidence, though not conclusive, was sufficient to go to a jury to authenticate the seal. Doe dem. King^s College V. Kennedy, v. U. C. R. 577. [See Foreign Judgment, 2.] 11. When a corporation must con- tract under seal. See Blue v. Gas and Water Company, vi. U. C. R. 147. COSTS. See Arbitration and Award, VII. Ejectment, IV(2);VI. — Security FOR Costs. I. Full Costs. ( 1 ) , When allowed. (2), When not allowed, (3), Certificate, II. Costs of the Day. III. Several Issues. 130 COSTS. COSTS. IV. Under 49 Geo. III. ch. 4. (1), Section I. (^Arrests.) (2), Section II. {Judgments.) v. UnderTWm.IV. CH.3, sEcs. 24> AND 26. {Dcnmriers.) VI. Under 5 Wm. IV. ch. \.\Pro- missonj notes.) VII. Under other Statutes. VIII. Other matters relating to Costs. I. Full Costs. (1), Whe?i aUoived. See District Court, 3. — Pleading, VIII. 7. Plahttijf and defendant and plaintiffs icitnesscs, resident in dif- ferent districts J\ — 1. Where the plaintiiT and defendant, and tlie plain- . tifTs witnesses, resided in difl'erent districts, full costs were allowed on a cause of action within the jurisdiction of the district courts. Htigill v. Diis- coll, Dra. Rep. 216. [See cases 10, 12 and 16, infra.] Promissory note originally heyoitd jurisdiction of district courts.'] — 2. Where the amount of a promissory note originally beyond the jurisdiction of the district courts had been reduced within it by payments after action brought, the plaintiff was allowed full costs. liilborn v. WallacCf iii. 0. S. 17. [See div. 11(2), 4, infra] Account oriiiinally beyond juris, diction of district courts,] — 3. Where the amount of an account originally beyond the jurisdiction of the district courts, was reduced to an amount within the jurisdiction of the court of requests by payments before action brought, a suggestion to depriv.- the plaintiff of full costs under the Court of Requests Ad, was refused. Scott V. Ferguson and Scott v. Itooke, ^lich. Term,'^3 Vic. [See case 17, infra.] Plaintiff being judge of district court.] — 4. Where one of the plain- tiffs was judge of the district court of the district in which the defendant resided, full costs were allowed, al- though the cause of action was within the district court jurisdiction. Jones ct al, V. Wing, iii. 0. S. 36. [See cases 13 and 14, infra.] Award within district court ju- risdiction.] — 5. Where an action is commenced in the King's Bench, and arbitrators upon reference award dam- ages under the jurisdiction of the dis- trict courts, the plaintilF is not deprived of costs under the District Court Act. Lang V. Hall, Tay. U. C. R. 286. 6. Where a cause is referred to arbitration by order of Nisi Prius, and the arbitrators award a sum within the jurisdiction of the district courts — the Court or a judge may grant an order for full costs under the ninth general rule of Eai^ter Term, 11 Geo. IV. Elmore v. Colman, Mich, Term, 6 Wm. IV. [See case 19, infra.] Action by attorney.] — 7. Where a plaintilV, an attorney, brought assumpsit and proved a cause of action to 20/., he was allowed full costs, although the jury rejected all his claim but three shillings. King v. Suck, Hil. Term, 6 Wm. IV. [Seediv. IU2), 10, infra.] Breach (f promise of marriage.] — 8. In an action for breach of promise of marriage, one shilling damages will carry full costs. Jejfeni v. Ldwrencc, Mich. Term, 7 Wm. iV. Slander, Is. damages.] — 9. Where tiie jury found for the plaintiff in an action of slander one shilling damages and full costs of suit, full costs were allowed. Sl,inncr v. Ncvin, Mich. Term, 7 Wm. IV. Srvmd. drfcndt. 'ts in different distrirls.]— '0. Full costs were al- lowed in a cause within the jurisdiction of the district courts, where there were several defendants residing in different COSTS. COSTS. 131 i districts. Jones et ol. v. O'SitUivan et al., Hil. Term, 3 Vic. Assrssmrnt of sum vndrr district court jnrisrUctimi.l — 11. Tiic Court ordered lull costs on an assessment of damages upon a cause of action ex- ceeding 30A, but under district court jurisdiction, it boini^ a case in which the Court would have {jranted a cer- tificate if there iiad been a trial. Ferric ctal. v. Ymi/iu, iii. 0. S. 140. [See McGill v. Slull, division (2), case 2, infra.] Note. Defendant residins in dis- trict other tiuiii that in irhich. note made.^ — 12. Full costs were allowed on a promissory note for lOA, the de- fendant having left the district in which the note was made and was residing in another. Perrin et al. v. Carson, Trin. Term, 2 & 3 Vic. [See . Where the amount of a promissory note originally beyond the jurisdiction of the district courts had been reduced within it by payments before action brought, full costs were refused. Don- elly V. Gd)son, Hil. Term, 2 Vic. Ajyplication for full costs not f idly met.] — 5. Where an application is not fully met, although suflicient be shewn for the discharge of the rule, costs will be refused. Harvey v. Kay, Easter Term, 2 Vic. Plaintijl' resident in United States. — 6. Full costs were refused on a promissory note under 40/. where the plaintilf resided in the United States. Sawt/rr v. McDunclly Trin. Term, 7 Wm." IV. General verdict u-ithin district court Jurisdiction.] — 7. Where the plamtitf, on a declaration containing a special count and the common counts, recovered a general verdict for a sum within the jurisdiction of the district courts, and did not obtain any certificate for Queen's Bench costs : Held, that he was entitled only to district court costs. Washburn v. Langlcy, Mich. Term, 5 Vic. Covenant — Verdict nndcr 40/.] — 8. Where in covenant the plaintifl assigned two breaches — one for liqui- COSTS. COSTS. 13d dated, and the other for unliquidated demand, and recovered a verdict under 40/. : Held, thai he was not entitled to Queen's Bench costs with- out a certificate. Bcnttic ct al, v. Cook, JMich. Term, 5 Vic. Promissory note — Disjmtcd consi- deration as a reason for sini/g in Queen\rss nflcr verdict, ivith a ririr of ^naitiirj vvr- tifcntcJ] — i). Wliore on the triiii ol an issue in assumpsit, and alter tiio jury had rendered their verdiet, l)ut before aay other business was proceeded uitii . the learned judge exa mined a witness to prove only that the cause was one proper to be tried in the Queen's Bench, and thereu))oii uranted a certi- ficate for costs — the Court, on motion to rescind the certificate, held that it was properly granted. Ihuidcutk v. Bcthune, ii. U. C. R. 38G. II. Costs of the Day. See Information, 9. — Juikjment as IN case of Non-suit, I. 14- ; IV. 3, et seq. Rnle!\ — 1. The rule for costs of the day for not proceeding to trial is absolute in the first instance. Clds- hdm V. Simpson, Dra. Rep. 2. Defendant acceplin«"t was against the demurrer, but ment of damages after judgment by \ the issues were found for him : Held, default, and does not countermand his that he was entitled to the costs of notice nor proceed to assess his dama- ! tl>oso issues. Shcldott v. Hamilton, ges, the defendant is entitled to costs ! Mich. Term, 3 Vic. Kiiiii's R. 94i. College V. 3. The defendant demurs to one of the counts in a declaration, and takes issue on the others ; the plaintill' goes to trial and assesses contingent dama- of the day. Tke Mayhce, ii. U. C [Also, 13 infra.] Defect injurata-Jiiry dischdrgerl.] —11. Where after the jury were sworn y:f--* on tiie demurrer to one farthing; in an ejectment cause, the defendant ! tl>e plaintiff succeeds upon the de- objected that the jurata was defective, '. murrerand the defendant has a verdict and the judge iicing of tiiat opinion, i I'l'o" aH the issues: Held, that the discharged the jury, and the defendant ! defendant is entitled to his costs of the obtained a rule for the costs of the issues in fact, and may have judgment day — the Court afterwards rescinded the rule, on motion of the lessors. Doe dem. Cronhs et ux. v. Cummings, ii. U. C. R. 380. Spcci(djui)/.'\ — 12. The costs of a special jury are costs in the cause, and not costs of the day. Whitehead v. Broivn, ii. 0. S. 343. [Also, see Juuv, 5.] Not iviKceding to assessment ac- cording to tijoiiee'] — 13. The Court allowed costs for not proceeding to assessment of damages pursuant to and execution for them. Taylor v. Carr, iv. U. C. R. 149. Verdict on one plea for flaintiff, an another for defendunt.] — 4. The plaintiff sues in trespass in one count, for breaking and entering his house and taking away goods. The defendant justifies the breaking and entering in one plea, and in another, he denies the goods to be the plaintilV's. The de- fendant has a verdict upon the first plea, and the plaintill" upon the second for 'iOs. Held, that the plaintitV was assessment oi uamages pursuant lo i . , , -- 7 • - - i - - - - notice. Cross et al. v. Cronther, Tay. ! '^"^'^''-'^ ^^ judgment in the action and U C R ''43 costs o( the cause. Mjvans v. K/ngsmillfW.U.C '" III. Several Issues. R. 132. I»sitcs in late for defendant, in fact for jdaintill- — Amendment by Issues in fart and in law—fiome^,fau,iiif.'\—b. When upon a dcmur- found for 2}laintiff, ami others for ^.^y mid issues in fact, judsiment is defendant.]—!. Where there are is- | ^iven in favor of the defendant on the sues in fact and in law, and the issues | aenuirrer, and the issues in fact are m fact, and one issue in law are in ioi„i,| for the plaintiff, the defendant cannot call upon the plaintiff to pay him the costs of the trial of the issues which he failed as a condition of favor of the plaintiff, and an issue in law in bar of the action in favor of the defendant, the plaintiff is entitled to the costs of the trial and of the }>lead- ing determined in his favor, and the defendant to the general costs of the cause, Davis v. Davis, Hil. Term, 7 Wm. IV. Issues in law for plaintiff, in fact for defendant.] — 2. Where the defen- on his (the plaintiff's) being allowed to anieiid on the demurrer. Batik of Britisii North America v. Ainley, vii. U. C. R. 521. IV. Under 49 Geo. III. ch. 4. (1), Section I. (arrests.) 4\ 136 COSTS. COSTS. Construction of statute.'] — 1. Scm- He: Thf words of tlie .stjitute " beint; arrested and held to speciiij hail," are satisfied by the deleiidaiit heiiii;; urrcst- ed and imi>ris()iied. JSVGrcnor v. Scott, Tay. U. C. R. 66. Vcnlict for /ess tho a sum sworn to.'] — 2. The plaintiir is allowed no costs where in a bailable action he recovers less than the sum sworn to, and the Court will order the delendant iiis costs ; and the defendant is entitled to set off his costs attainst the plaintilV's verdict. Burrows v. Zee, Easter Term, 3 Vic. Award for less than sum sworn to^ — 3. Where the plaintiff had arrested the defendant for a considerable sum of money, and evidence had been given in Court of a larger sum being due to the plaintiff, and the case was then referred with other matters to arbitra- tion, and the arbitrators awarded the possession of a mill to the plaintiff and 6/. or 11. only in money, the Court refused to give costs to the defendant under the provincial statute for pre- venting vexatious arrests. ATGrrgor V. Scott, Tay. U. C. R. 66. Arrest for "HQl. 'icithout allomng for set-off — Award.l — 41. Where the plaintiff arrested the defendant for up- wards of 30^, without making any allowance for a set-off, of which he must have been aware, and a verdict was taken for the plaintiff for the whole amount subject to a reference, and the arbitrators allowed the set-olV and awarded the jiiaintiff only 20/,, the defendant was held to be entitled to costs. Kciidrcio v. Allen, Trin. Term, 4 & 5 Vic, P. C. friacaulay, J. Award for less than sum sicorn to."] — 5. Where in a bailable action a verdict has been taken subject to a reference to arbitration, and the arbi- trators award a less sum than the amount for which the defendant was arrested, the defendant may be allowed his costs ; although, semblc, not if the rule of reference direct that the costs shall abide the event. In this case, in which the circumstances were nearly similar to those in the last case, the Court refused to allow the defen- dant his costs. NicluAson v. Alletif Mich. Terra, 5 Vic. 6. Where the plaintiff arrested the defendant for 20/. and a verdict was afterwards taken by the plaintiff by consent for 'M., subject to a reference to arbitration, and the arbitrators awarded lis. 3d. to the plaintiff, and it appeared by the affidavit of the arbitrators that the plaintiff shewed a cause of action to no greater an amount, the Court made a rule absolute to allow the defendant his costs. McMicking V. Spencer, Hil. Term, 6 Vic, P. C. McLean, J. Rule for costs incorrectly intituled."] — 7. Where a rule nisi to deprive the plaintilV of costs under 49 Geo. III. eh. 4, was not correctly intituled, the Court allowed an amemlment by the affidavits tiled on payment of costs. Ball V. McKe?izie, Trin. Term, 7 Vic. P. C. Macanlay, J. Affidavit.'] — 8 To ground an appli- cation for costs upon a malicious arrest, the affidavit must state that the defen- dant was arrested without reasonable or probable cause. Mcintosh v. While, Tay. U. C. R. 67. Insiifficient affidavits.] — 9. Where the defendant applied for costs under the act above mentioned, the rule was refused, because it nowhere appeared in the affidavits for what sum the plain- till' had recovered a verdict. Powell V. Gott, i. U. C. R. 415. [See also 11, infra.] Cause referred to arbitration, no verdict being taken.] — 10. Where a cause has been referred to arbitration by order of Nisi Prius, but no verdict taken, the defendant cannot move to deprive the plaintiff of costs under 49 Geo. III. ch. 4. Ib.,i. U. C. R.418. Wrong intituling of affi/lavit."] — 11. Where the defendant moved to COSTS. COSTS. 137 deprive the plaintifTs of costs under 49 Geo. III. ch. 4>, for the diflereiice between the a vount recovered and that sworn to oeing only 11., and in his affidavits a wrong christian name was given to one of the j>laintifls in the style of the cause — the Court refused to allow thetn to be amended, and dis- charged the rule. Rose et al. v. Cook, i. U. C. R. 5. demurrer, on which judgment was afterwards given for one of the defen- dants, and against the other : Held, that under 7 Wm. IV. ch. 3, sees. 24» and 26, the defendant who succeeded on demurrer was entitled to enter judg- ment for his costs. Clarke v. Dur- ham et el., Trin. Term, 4 & 5 Vic, P. C.Macaulay, J. (2), Scctioti II. {Judgments.) Proceedings utider Absconding Debtor''s Act after cxeaition.'] — 1 . The Court refused to allow the plaintiff his costs in an action brought by him on a judgment, where it appeared that after execution he had commenced by pro- ceeding by attachment under the Ab- sconding Debtor's Act. Keelcr v. Brouse, i. U. C. R. 348. Refused^ although there was a false plea!\—'i,. The Court refused to allow a plaintiff costs, although the defendant pleaded a false plea of nul tiel record. McDomdd v. Clarke, i. U. C. R. 527. [See rules of Hilary Term,13 Vic, number 24, regulating pleas of judgment recovered in another Court.] V. Under 7 Wm. IV. ch. 3, secs. 24 AND 26. {Demurrers). When costs inay be recovered.'] — 1. When the plaintiff succeeds on a de- murrer to a plea in abatement, he can- not recover the costs of the demurrer under 7 Wm. IV. ch. 3, until the ter- mination of the suit. Richmond et al. v. Cam,pbcll, Hil. Term, 2 Vic. Several defendants — Verdict on demurrer for one, and against the other.] — 2. Wliere in an action of trespass against two defendants, they pleaded the general issue and separate justifications, to which the plaintiff demurred, and went to trial and ob- tained a verdict on the general issue, assessing contingent damages on the VI. Under 5 Wm. IV. ch. 1,sec. 1. {Promissory notes). Sec div.I(l), 16. Costs allowed in one suit only — Disbursc?nents inothers,] — 1. If there be two indorsers on a promissory note under 100/., and the holder of the note bring several actions against them, he will under 5 Wm. IV. ch. 1, be enti- tled to tax his full costs in only one suit, and will be allowed no more than disbursements in the other. Shuter V. Dee, i. U. C. R. 292. [By the late statute 13 & 14 Vic. ch. 59, the sections limiting the operation of ^ Wm. IV. ch. 1, to notes for 100/. have been re- pealed.] Separate action against the accep- tor and indorsers of a Idll— Liability of one for the costs of the other.] — 2. Where the plaintiff commenced sepa- rate actions again.si ihe acceptor and indorser of a bill o\' r;:xhange, andthe acceptor paid the amount of the claim against him, but without the costs, and judgment was entered and execution issued against him for their amount and the costs of the suit against the indor- sers, the Court ordered the writ to be restrained to the costs of the acceptor alone. Gillespie et al. v. Cameron, iii. U. C. R. 45. [See also VIII. e.'infra.] In what case statute not applicable.'] — 3. A. at the assizes in Toronto sues B. as one of the indorsers on two pro. missory notes — one for 27/. and the other for 76/. A. recovers on the note 138 COSTS. COSTS. for 27/., but having mislaid the note for 76/., Ih! enters a nolle prosequi as to that part of liis claim. A. also brings Knottier action in the District Court of till- Niaaara district against C. the maker, and D. another of the jndorscrs on tiie note, lor 'HI. Ifild, on a motion to restrain the plainlill' under 5 VVm. IV. from recoverini" more than the full costs of one suit, that the act did not a|)ply. C'ldflcsv. liogcrx, V. U. C. R. 1. Arinnnoif, /if (himirrcrs in three sep'inite etise.s un Ike miine rule.^ — k Wiiere separate actions were brouulit against the maker and indorsers of a note, and upon a ileinurrer by the de- fendant to the i)Iainti!l's'' replication, judgment was siven for the defendimt, and the j)lainiiirs applied to amend, making but one application in the three cases : lle/J, that the defendant was only entitled to the costs as for one case, in attending to oppose the appli- cation to amend. Held also, that as totheordinary fee disbursed to counsel, with brief to argue the demurrer in three cases, and the ordinary taxable costs occasioned to the defendant by the demurrer in edck case, that they might be allowed to the defendant. Bank of British North America v. Ainley, vii. U. C. R. b2\. VII. Under other Statutes. 43 Eliz. — Trenptiss fiuarc clausum f regit.] — 1. He//l, that in action of trespass cpiare clausum fregit, to which the general issue is pleaded, (not per 8tat.), the judge who tried it may cer- tify under 4-3rd Eliz., to deprive the plaintilT of costs, when the damages are under 4.0s. . (J(X)dall v. Glen et tU., vi. U. C. R. 14.. ■ 43 Eliz.— LiM— 20s. damages.] — 2. In an action for libel wherein the plaintiff recovered 20 shillings dama- ges, the judge who tried the cause re- fused to certify under 43 Eliz. Cam- eron et Ux. V. McLean, Tay. U. C. R. 524. 43 E/iz. — General verdict ufider 40.S-.] — 3. Where there are counts in tresjiass quare clausum fregit and de bonis asportatis, and a general verdict under 40.s., the judge at Nisi I'rius may certify, to deprive the plaintitVof costs. Jlarper v. Ward. Midi. Term, 4 Vic. 43 Eliz.— Cert ifieate.] — %, It is not compulsory upon a judge at Nisi Prius to liiant a certificate under 43 Eliz. McGuirc v. Donaldson, Tay. U. C. R. 332. Statute '^ Anne, ch. \Q,sec. ^ -5. A judge will not certify un e statute 4 Anne ch. 16, sec. 5, i„ ^ o- tect a defendant against paying the costs of a ])lea which he knows is not true in itself, but which he pleads for a collateral purpose. McLcod v. Tor- rance, iii. U. C. R. 174. 4 Wm. IV. ch. I, sec. 53.]— 6. The Court will not grant an attachment auainst an over-holding tenant, under 4 VVm, IV. ch. 1, sec. 53, for the non- payu.ent of costs, until an order to pay the costs has been first served u])on the tenant and a demand made. McLach- lan. In re, iii. U. C. R. 331. 4 Wm. IV. .spc. 1\— Certificate for eosts^ — 7. Where in an investigation of a charge under the Petty Trespass Act, 4 Wm. IV. ch. 4, before magis- trates, the ])laintill' was guilty of a contempt, lor which the magistrates convicted hinj, but without warrant, and the plaintiff brought an action for false imprisonment against them and recovered : Held, that the action did not arise in conse(pience of anything done by the magistrates under the Petty Trespass Act, and that therefore it was not necessary for the judge, under the 2Ul section of that act, to certify his approval of the verdict to entitle the plaintiff to his costs. Ar- mour V. Boswell et al., Trin. Term, 5 & 6 Vic. 1 COSTS. COSTS. 139 VIII. Other matters rklatincj to | receive the nniount, except uncon- CosTS. ditionally, nrul the aL'ont iiftonvards Sre Amendment, II. 30; III. 12. — ' tcndorod it unrnrKlitioiiiilly, hut it was Ahbitratio.v and a -i nJirCJ), ''if"" ivriised, liccause additional costs 2" IV(l),fi' IV('2\ 1 ■ \ IT. At-j'"i^^ Ix'fii iiiciirrt'd, ami tlie plaiiititV's tachmknt, 11. H, l, 5,'(),S, 9, II ;I*''^— 'lie Court sot liic verdict Bail, 111. 9.— Cai'ias ad Respon- ' "^i'li^ "" pymcntof tlie sum originally DENDUM, .5.— Capias ad SATiSFA-|aL'rocd iijion, and niailo llio plaintilV's ciENDu.M, 2. — Certiorari, 4. — ; "'tonicy pay llio <;os1s of the ap|)lica- Cognovit, 3.— Uower, III. 3, 5. ; tiori. JiifUa/i v. Lidwitmn, ii. U. C. Ejectment, IV(2); V. 9, 11 ; VI. | R- 'ii- Election. — Executor etc., I. 9. ; Sctof.] — 4'. Whore a defendant Foreign .Iudgment, 9. — Gaoler, jut olFa trial on payment of costs, and 1. — Indemnity Act, 1. — Insol- never haviiiii; paid those costs, at a sii!)- VENTETC.,23. — Interpleader, 2. JuRV, f). — Mesne Profits, pas- Payment into Court, 2 — Sher- iff, II. 5, 11, 12,28. Bevisinnnf taxation .^ — 1. Ifplain- tifls on verdict are allowed onlv to (ax sequent trial obtained a verdict : Held, that those costs could not he sot off sun. — Money Paid, 2, 3. — New ' against the defendant's general costs, Trial, IV. S ; IX. passim ; X. 1. — there being no aflldavit of the defen- dant's insolvencv. Fntts v. Dtyijlc^ Easter Term, G Wm. IV. Costs, v:hrn amcmlmrnt not made at jyisi I'riiis accordina to have district court costs, and the tiefendant: i:^ra)itcd.'\ — 5. Where in trover for a neglects to take out a rule to be pre- j wagaon, the evidence clearly establish- sent at the taxation, the Court will not, ' ed that the matter in disj>ute was not after the plaintiffs have taxed district court costs, direct a revision of the taxation that the defendant's costs may be deducted under the statute. Mc- Call ct cd. V. Camaon, i. U. C. R. 414.. Att.iirhinc.nt fornon-paymcntJ] — 2. An affidavit being made of a rule for the waggon, hut two of its wheels, and the plaintiff olitained leave to amend his declaration at Nisi Prius, by addinjr I the wheels, but the amendment was not in fact made, and the jury gave a verdict for the ])laintiff \\)\- fifteen shil- lings — the Court, on making the rule absolute for a new trial without costs, payment of costs,'served and demand- I against which no cause was shewn, ed, the Court will make a rule for an ^'c^^j that in such a case, the amend- attachment for non-payment absolute in the first instance. Rosivellx. Hart- well, Dra. Rep. 96. Additional costs."] — 3. Where after issue joined, the plaintiff and defendant ment at Nisi Prius should iiave been made only on pavment of costs. Ma- dill v. Chilvvrs, ii. U. C. R. 269. Joint debtors — Debt 2>aid by one — Enforriiig debt and costs from the settled the action upon condition of the |0it''saltornc?/offering plain- tiff to pay his costs, when knoivn — Plaintiff nftcricards issuing writ, without informing defendant of amount of eosts^ — 10. Wiicre the defendant obtained a new trial on payment of costs, and his attorney immediately aftenvards wrote to the plaintiff's attorney begging to know what the costs were that he might pay them, and the plaintiff's attorney took no notice of the letter, but fifter allow- ing Fime months to elapse moved in term time to discharge the rule for a new trial, on an affidavit that the costs were unpaid, and without any notice to the defendant't) attorney to attend taxation, on the same day entered judg- ment and took out a hab. fac, which was executed — the Court, on applica- tion of the defendant's attorney, set aside the judgment and \sx\\. without costs, and directed the defendant to be restored to possession. Due dem. Arnold v. Anldjo, vi. U. C. R. 21. Judgment as in, ca.se of a non-suit — Costs of commission.'] — 11. Notice of trial was given by the plaintiff and duly countermanded. — The defendant obtained a judgment as in case of a non-suit, in consequence of the nlain- tiff not having proceeded to trial ac - ding to the practice of the Court, w..l claimed allowance in his bill of costs lor a commission to examine witnesses in the United States : he also claimed a counsel fee, and a fee for preparing a brief. These were refused by the master ; and upon a motion for revision of taxation, it was held that under the circumstances of the cfise the master ought to have allowed the expense the defendant had been put to under the commission, notwithstanding the plain- tiff had countermanded his notice of ♦rial in due time ; and with respect to nrief and coun>«cI fees, that the master should allow no disbursement to coun- sel with briel', nor any charge with brief which should appear either not to have been actually incurred or to have been unnecessarilv incurred. Pegg v. Pegg, vii. U. C. R. 220. [Sec Pegg V. Pegg, i. Cham. Rep. 190.] Rules dischargedon preliminary or sitbstantial ofjjections — Costs."] — 12. If a rule be discharged on a prelimi- nary objection, such as an error in the intituling of an affidavit, &c., costs will not be allowed ; but if the objection be to the sufficiency of the materials on which the rule is moved, the rule will be discharged with costs. Hughes v, Hamilton ct al., ii. U. C. R. 172. [See an instance, Practice, II. 21.] !? COSTS (SECURITY FOR). See Securitt FOR Costs. COUNTS. COVENANT. 141 COUNSEL. See Arrest, II. 6.— Demurrer, 7. Queen's Counsel. Fccsbcturcn counsel ond client.'] — 1. Counsel can sustain actions for such fees, to be paid to tliemsclves by their dients, as are estabhshod according to the table of fees under the statute 2 Geo. IV. oh. 1 ; but where the fees claimed are not such as come within the provisions of that act, the general principle of law in England applies equally to this province, and counsel have no right of action for fees gener- ally. Baldivin et (d, v. Montgomery, i. U. C. R. 283. [See further Smith et al. v. Graham, Attor- ney, III. 14, (latter part thereof), Costs, VI. 4; and VIII. 11.] Acting as u-itncss.l — 2. Where a counsel upon stating to the jury the facts he himself could prove, is re- minded by the judge that he cannot act both as an advocate and a witness, and then immediate!; sits down, ceases to act as counsel, and gives evidence in the cause, the Court will not enforce their rule so rigidly as to set aside the verdict. Cameron v. Forsyth ct ai., iv. U. C. R. 189. Verdict set aside for breach of faith.'] — 3. A. a counsel at Nisi Prius, re- presented to B. another counsel, that a cause was undefended ; B. thereuj)- on took a brief from the plaintiff, and A. afterwards appeared for the de- fence and obtained a verdict. — The Court set aside the verdict for the want of good faith in the defendant's counsel, and made him pay the costs of the application and trial. Hamil- ton v. Notman, Trin. Term, 3 & 4 Vic. COUNTS. See Amendment, II. 17, 33 ; III. 2, 3, 4*, 5, 6.->CoMMON Counts. COUNTY COUNCIL. See District Council. COUNTY COUNCILLOR. Sec District Council, 12, 13. COUNTY COURT. See District Court. COUNTY TREASURER. See District Council, 8, 11. — Di- vision Court, 4. COUNTY WARDEN. See District Council, 16. COURT HOUSE. Sec District Council, 3, IS. — Man- damus, 17. — Quarter Sessions, 3. COURTS. Sec District Court. — Division Court. — Practice Court. — Pro- bate Court. — Surrogate Court. COVENANT. See Arbitration and Award, VI (2), passim. — Arrest, IV. 6. — Costs, 1(2), 1, 8. I. Construction AND Operation. II. Proceedings. (1), Action Generally. (2), Pleadings, Evidence and Damages. I. Construction and Operation. See Executor etc., I. 10. — Lease, I.— Sheriff, V. 4, 10, 15, 16, 20. A i' \ ' f I 111 m. 143 COVENANT. COVENANT. Covenant of seizin avd of further assurance — Breaches — Doner. 1 — 1 . It is no breach against the roveiiantor on a covenant in a conveyance of land, that he is seized of an estate of inheri- tance in fee, without anything to ciiaisre or incumber the same, tliat ills wife is aUve and has not barred her dower ; nor is it any breach of a covenant for further, better, and more perfectly con. veying the land, tliat a deed of release of his wife's dower was tendered to the covenantor to be executed, and refused. Bower v. Brass, Easter Term, 5 Vic. Further assurance — Doiccr.l — 2. The right of dower which a woman has during coverture is not an interest, the release of which the covenantee can require under the ordinari- cove- nant, for further assurance. Iloijt v. Widdcrfiehl, v. U. C. R. ISO. 3. Senile: (per Macaulay, J.) That if the woman had survived her husband, an action would only lie upon an efj'ec- tual conveyance to pass her estate having been tendered. lb. [See (liv. 11(2), 9, infra.] Condition precede )7t.'] — 4. Where the plaintifT covenanted that his son Bhould serve the defendant for seven years, in consideration whereof tiie defendant covenanted at the expiration of thf time to convey 200 acres of land to the son, his heirs and assigns : Held, that the service for seven years was a condition precedent to the right to the conveyance of the land. Good- all V. Elmslnj, Easter Term, 4 Vic. Word **de)iiisr" an implied cove- nant — Assipnins: hreacliesifsurh int. plied covcnani.'] — 5. If the word " dc. mise" he used in a lease, it contains an implied covenant that the lessee may peaceably enter and enjoy ; and it is Butficient in an action on the lease to state the breach of such implied cove- nant, without having before or other- wise referred to it in the declaration. Sntmt V. Stuartf Trin. Term, 6 & 7 Wm. IV. I Covenafitfor good title.'] — 6. Held, that the usual covenant lor good title I is a covenant running with the land, and that it is no objection therefore to ! an action upon such a covenant, by ' the assignee of the covenantee against the original covenantor, that because according to the statement in the de- claration, " the covenant was broken as soon as made" and could not enure to the benefit of the assignee. Gam- Lie ct al. v. Bees, vi. U. C. R. 396, [Uphold in Scoli v. 7Va/iV/i, vi. U.C.R. 511.1 7. Quccrc : What would the effect be, if '.t the time the original covenan- tor's deed was given, a third party had been actually in adverse possession, or if the covenantee had been evicted before he made the deed to tiie as- signee 1 lb. Bight to sue for rent iinder the facts.] — S. A., authorised by govern- ment to settle a townshi]), covenanted with B. that he wotitd allot him 100 acres therein, for which he would pro- cure a deed from the Crown as soon as the settlement duties were perform- ed, and B. covenanted with A., that he would pay him a bushel ol" wheat per annum for every acre of land clear- ed after he had been in possession of the lot for three years : Held, that A. might sue for tlie rent alter B. had been in actual ])ossession for ihrco years, although no deed to B. had been granted bv the Crown. McNab v. McFarlane, iii. O. S. 287. Preparation of papers under a cove- nant.] — 9. Held, that upon the aaree- ment set out in the report of this case, the covenantor, and not the cove, nantee, was the jiarty to prepare the papers for the Bishop of Toronto to execute. Henderson v. xWichols, v. U. C. R. 39H. What amounts to a, crtre/iant.] — 10. Where a covenant was contained in a lease, that the lessee should erect a building on the demised premises during the term, "provided always, and it is the true intent and meaning -w^ COVKNANT. COVKNANT. 143 of these presents, and the parties there- unto, that at the expiration of the de- mise tlie buildins;s erected shall be paid for at tiie valuation of two indif- ferent persons," ^c. : Held, on a plea of noil est factum, pleaded to a decla- ration treating on the })art of the lease commencing ** provided always," as a covenant, that tlie plaititilfwas entitled to recover. McFatlridi^e v. Talbert ct ul., ii. U. C. R. 156. II. PUOCEEDINGS. (1), Action GcncmUif. See Apprentice, 2, 3. — Contribu- Tiox, 2. — Covenant, I. 5. — Dis- trict CotRT, 9. — Sheriff, V. passim. Coioiant, on which action brous^ht must he express.'] — 1. The covenant in a deed upon which a party sues must be express and distinct, and not gathered as arising consequentially, or morally by reason of somethine else contained in the deed. Liddell v. Monro, iv. U. C. R. 471. Covenant on the proviso in a mort- gage,'\ — 2. Covenant cannot be sus- tained on the ])roviso in a mortgage deed, to pav tJie mortgage money. Martin v. Woods, Trin. Term, 3 & 4 Vic. [Seediv. 1I(2),7. 17, 18, infra.] Vendee having siren a martsxasie to vendor, is disabled from suing for title.] — 3. Where a purchaser re-con- veys the same lands to his vendor by mortgage in fee, to secure payment ot the purchase money, he cannot sustain an action against the vendor for breach of covenant for good title, while the mortgage continues in force. Huyck V. McDonald, iii. 0. S. 292. Action by heir on covenant entered into with aticestor.'] — 4. Held, that att heir could not sue on a covenant entered into with the ancestor to con. vey land to him, his heirs and assigns, within a certain time, the heir not be- 1 ing mentioned in the covenant, and! the breach having taken place in the ancestor's life-time. Goodall v. Elms- ley, Easter Term, 4 Vic. [See the heir's liubiliiy on ancestor's cove- nant for good title.— Heir, 5.] Action by assignee of covenantee for title — Cause of action.] — 5. Upon an action of covenant for title by an assignee of the covenantee, it is not essential that he should shew that a legal interest passed to him under the deed ; his cause of action is, that he has not the interest he supposed he was acquiring, and which he would have had if the title of the covenantor, who executed the first deed, had been good. Gamble ct al. v. liees, vi. U, C. R. 39(i. Eviction from part of premises, a defence to an action of covenant,] — 6. In an action of covenant between the original parties to a deed, an eviction from part of the premises is a good defence to the action ; there can be no apportionment of the rent as in debt. Skuttleicortk v. Shaw et al., vi. U.C. R. 539. (2), Pleadings, Evidence, and Dam- ages. See Apprentice, 3. — Arrest of Judgment, 2, 8. — Covenant,!. 5. Leave and License, 4. — New Trial, IV. 2.— Pleading, II. 7, 10; VEIL 1. — Sheriff, V. passim. — Surrender, 5. Covenant for quiet enjoyment.] — I. In an action for breach of covenant for quiet enjoyment, freedom from in- cumbrance, sic, it is sufficient for the declaration to state that one B. was seL-^ed before conveyance to the plain- tilT, and that the plaintiff was obliged to pay him a certain sum (naming B.) to obtain possession, without stating eviction by B. Bleckcr v. Myers et al., Tay. U. C. R. 387. Covenant for e/njwjment from, claims — Ureueh-Plea of no eviction,^ — 2. To a count setting out a covenant that plaintiti' should enjoy free from in- •^1 ■i ,fc; ',&% 144 COVENANT. COVENANT. cumbrances n plea stating that the plaintiff enjoyed the estate without eviction, was held not to be a sufficient answer. Sherwood v. Johns, Tay. U. C. R. 507. Covenant for title — Breach — Plea of no eviction '\ — 3. In an action of breach of covenant for good title a plea that the defendant was the right owner, &c., ai'd that the plaintiff has had pos- session since conveyance made by defendant, and never has been evicted, is bad on demurrer. Vanderburs; v. Vanalstinc, Hil. Term, 7 Wm. IV. Action against assignee of a lease — P/ms.]— 4. A plea to an action of covenant against the assignee of a lease for rent due under the lease, that all the estate of the lessee in the demised premises did not come to and vest in the defendant, as the plaintiff alleges, is a good plea ; but in such an action the defendant cannot plead that the lessee was seized in fee simple before the demise, and conveyed the premises to the defendant in fee, or that the lessee leased to a third party, and that third party assigned to the defendant, concUuling in such a case with a special traverse of the assign- ment to the defendant, as such pleas amount to special pleas of nil habuit in tenementis. Annis et aL v. Cor. belt, i. U. C. R 303. Covenant against incumbrances in a lease — Breaches — P/cha.] — 5. In an action on a covenant in a lease, that the defendant had not incumbered, charged, or affected the premises leas- ed in any manner, and assigning as a breach that A. and B. claiming under the dw'endant prior to the plaintiff's lease, ond having a right to certain fixtures on the leased premises from the defendant, would have entered to remove them, if the plaintiff had not paid them for them ; the defendant pleaded, first, that A. and B.'s title had expired before the time, when, &c., and that they had no right at the time alleged to the fixtures, &c., concluding to the country; and secondly, that before the lease of the plaintiff, the defendant had leased the same premi- ses for five years to C, who had a right, under the lease, to the fixtures ; on special demurrer by the plaintiff to these pleas, the Court held the first good, and the second bad. Cameron v. r«m<«, i. U. C. R.312. drvcnant for delivery of stone, 216 feet, to the toise — Averment of de- livery.'] — 6. In covenant, plaintiffs agreed to deliver 200 toise of stone for the building of a wall, defendants to pay 6s. 9^. per toise, i. e., for every 216 (eet cubic measure, when the wall was erected — plaintiffs averred deliv- ery of 195 toises laid in the wall, but omitted to aver how many toises at the rate of 216 cubic feet to a toise had been laid in the wall and measured there : Held, bad on demurrer. (Ma- caulay, J.,dissentiente.) Hoicc et al. V. Netcman et al., Dra. Rep. 96. Declaration for payment of money bi/ instalment S.I — 7. Where the plain- tiff declared on a covenant for the pay- ment of 250/., by annunl instalments of 62/. 10s. on the first day of January in each year, until the whole sum was paid, and assigned as a breach that en the first day of January 184'5, the sum of 125/. became due for two instal- ments in the said covenant — the de- claration was held good on special demurrer. Thompson v. Cltambers, ii. U. C. R. 191. Covenayit frr quiet enjoyment from, all claims — Breach."] — 8. Where in a covenant on a deed in fee for quiet enjoyment against all claims, the breach assigned was, that the land sold was not at the time of bargain and sale free from all incumbrances, but, on the contrary, 15/. were then due upon it for arrears of taxes : The declaration was held bad on special demurrer. Wilson V. Rorke, ii. U. C. R. 437. Covenant for further assurance—' Avermc}it.'] — 9. In an action upon the common covenant for further assurance, « COVENANT. COVENANT. 145 the covenantee must aver in his decla- ration that the conveyance which lie required was devised by himself or his counsel, and tendered to the party to be executed. (Macaulay, J., du- bitante.) Hoyt v. Widderfidd, v. U. C. R. 180. Fravd, It/nv j>icadc(l.'\ — 10. To an action of covenant on a deed, the fraud, covin and misrepresentation of the plaintiff may he pleaded in general termc). Luccij v. Spencer, iii. U. C. H. 169. [De injuria is a good replication to a plea of fraud, Cowper v. Garbett, 13 M. & W. 33.] Action of covenant — Plea of release — Replication of fraud — Evidence under the pleadings."] — 11. Where in an action of covenant, to a plea of re- lease, the plaintiiT replied, that it was procured by fraud and covin, on which issue was joined, and at the trial it appeared that before any breach of the covenant the plainiilV had assigned his interest in the subject matter to a third party, and that this action was brought for the benefit of such third party, whom the plaintiflT and the de- fendant had combined to defraud by the release: Held, that under the pleadings, such evidence was inadmis- sible, as the Court could not go out of the record, and the party inlerested should have applied to set the release aside. Rotca/id v. Ti/ler, iii. O. S. 5P3. Covenant for title — Breaches, want of seizin in fee, and eviction — Plea of seizin in fee — Evidencc.l — 12. In covenant for title, the breaches assigned were, want of seizin in fee, and an eviction by a stranger, to wliich the defendant pleaded a SPi/in in fee in himself: Held, that on the plaintiff proving an eviction by a stranger with- out shewing his title, i I was incumbent on the defendant to give evidence of a seizin in fee in him.self. Varey v. Muirliead, Dra. Rep. 498. [8m Onus Pbobanoi, 3, 4.] CovcnaM for title — Measure of damages.] — 13. In an action for breach of covenant for good title, no damages can be recovered for im- provements or the increased value of the land, the purchase money and in- terest forming the measure of the damages. McKinnan v. Burrows, iii. 0. S. 590. Covenant to re-purchase a lease — Datnagf's.] — li. Where A purchased a lease from B., and B. covenanted to re-purchase it at the expiration of three years for a greater price than he paid, and after the three years had expired A. tendered an assignment of the lease, which B. refused : Held, that in an action on the covenant A. was enti- tled to recover as the amount of dam- ages the price agreed upon by B. for the re-purchase. Gibson v. Cubitt, Easter Term, 2 Vic. Lands lialile for damages in cove- nant.] — 15. Under the statute 5 Geo. II. ch. 7, real estate in the colonies is liable, to satisfy a judgment for dam- ages in an action of covenant. Nu- gent, V. Campbell et a/., iii. U. C. R. 301. Covenant — Construction of agree' mcnt, as set forth on record — Plead- ing.] — 16. Where in covenant, with non est factum pleaded, the plaintiff set out the covenant to pay 100/. to the plaintifT in three months af\er a certain day, or as soon as the defen- dant returned from the United States of America, after having taken pos- session of certain land (which had been sold by the plaintiff to the defen- dant, as set forth in the declaration), or disposed of any part thereof, and the plaintiff assigned as a breach, that although the period of three months had elapsed long before the commence- ment of the suit, yet the defendant had not paid the money, and the defendant moved in arrest of judgment, because the plaintiff had not averred" that the Bsamm 146 COVENANT. CRIMINAL LAW. defendant had returned from the United States, having taken possession of tlie lands, or disposed of some part there- of" — the Court held the declaration sufficient. Hardy v. Johnston, ii. U. C. R. 160. Covenant for payment of money — Breaches.] — 17. The plaintiffdeclared in covenant, against the defendant, "for that the defendant covenanted that he would pay to the plaintiff the sum of money in the proviso of the indenture mentioned upon the day and time ap- pointed for payment thereof in and by said proviso." Breaches — " that the defendant did not, nor would pay to the plaintiff the sum of Sil. 15s. and interest for the same, on the day and time appointed for payment thereof as aforesaid, but therein failed and made • default, &c." Demurrer thereto — Held, declaration good. Courtney v. Sinclair, V. v. C.R. 311. Plea to suchanaction.'] — 18. Dec- laration in covenant on a mortgage to pay a sum of money on a day named. Plea — that the defendant had not bro- ken his covenant : Held — plea bad on special demurrer. Mitchell v. Linton, V. U. C. R. 331. Covenant for tion-payment of rent — Plea of payment to a third party.'] — 19. Where in covenant for non- payment of rent due on a lease made by the plaintiff to the defendant the defendant pleaded that A. was seized in fee of the premises and leased to B., whose term afterwards came to the plaintiff by assignment, arid that after- wards, and while »he ter.n continued, and before action, A. dist -ained on the occupiers of the premises for rent due on the lease from B., anJ received a part of the rent from them, and the residue from the defendant : Held on general demurrer, that the plea was good. Leonard v. Buchanan, Easter Term, 5 Vic. COVERTURE (PLEA OF). See Abatement, 5. — Assumpsit, II. 7. CRIMINAL CONVERSATION. A xalid maiTiage must be strictly proved.] — In trespass for criminal con- versation, the plaintiff's marriage must be clearly proved ; mere casual con- versation of the defendant in which he has spoken of the woman as the plain- tiff's wife, or letters from him directed to her as such, are not sufficient ad- missions of the marriage to obviate the necessity of strict proof of the mar- riage itself. Camvbcll v. Cain, Eas- ter Term, 7 ' [Ace. Cat-jT'iortv Caston, xiii. M.& W. 261.— Also, see Rey v. MUlis, 10 CI. & Fin. 534.] CRIMINAL CONVICTION. See Conviction, passim. CRIMINAL INFORMATION. See Information. CRIMINAL LAW. Sec Conviction, passim. — Larceny. Charge of murder — Bail.] — 1. The Court refused to discharge a pri- soner brou^iit up on a habeas corpus, charged with having murdered his wife in Ireland, communication having been made by the provincial to the home government on the subject, and no an- swer received, and the prisoner having been in custody less than a year ; and bail in such a case will not be allowed until a year has elapsed from the time of the first imprisonment, although no proceedings have in the mean time been taken by the Crown. Rex v. Fitzgerald, iii. O. S. 300. CROWN GRANT. CROWN GRANT. 147 Larceny — Bail.'] — 2. A prisoner in custody for grand larceny may be admitted to bail. Rex v. Jones etal., iv. 0. S. 18. [ITie statute 7 Wm. IV, ch. 4, sec. 1 , abol- ishes the distinction between giand and petty larceny.] Charge of murder — Bail."] — 3. A prisoner charged with murder may in some cases be admitted to bail, and on an application for bail, the Court may look into the information, afld if they find good ground for a charge of felony, may remedy a defect in a commitment, by charging a felony in it. Rex v. Higgins, iv. 0. S. 83. SetUenceJl — 4. A criminal convict- ed at a court of oyer and terminer of a capital felony, may be brought up to the Court of Queen's Bench for sen- tence. Rex V. Kenny, Mich. Term, 7 Wm. IV. CROWN. See Crown Grant, 7. — Limita- tions (Statute of), I. 3. — Sur- hender, 1, 3. CROWN GRANT. See Assumpsit, I. 4. — Ferry, 2, 3. Survey, 1. Must be by matter of record — Ef- fect of eoxmplication on defective grant. 1 — 1. A grant from the Crown must be by matter of record and under the great seal. An exemplification under the great seal of a grant invalid in its inception, will not have the eifect of making such grant valid by relation from its commencement. Doe dem. Jackson v. Wilkes, Iv. 0. S. 142. Rights of grantee,"] — 2. The King's grant gives the grantee an estate sutfi- cient to maintain trespass without evi. dence of actual entry. Clench v. Hendricks, Tay. U. C. R. 555. [Also, Bee cose 12, infra.] 3. Semble, however, that a grantee of the Crown never having taken pos- session is subject to the provisions of the statute 32 Hen. VIII. ch. 9, sec. 2. Purdy qui tarn v. Ryder, Tay. U. C. R. 313. Evidence disputing grantee's iden- tity.] — 4. Evidence is inadmissible to shew that the person named in a grant is not the person for whom it was in- tended. Doe dem. Baker v. Gould, Hil. Term, 6 Wm. IV. 5. Evidence will not be received, to shew that a grant from the crown was improperly issued, so as to enable a subsequent grantee to recover in eject- ment. Doe dem. McKay v. Rykert, Trin. Term, 3 & 4. Vic. Description of land.] — 6. The des- cription in a grant will be taken as correct, unless proved to be wrong by the clearest testimony. Doe dem. Smith V. Meyers, ii. 0. S. 301. [See cases 7, 8, 9, 14 and 15, infra.] Production of grants to explain each other — Construction generally.] — 7. In actions in which the King is a party, in the construction of grants from the Crown, where there is an ambiguity in respect of the premises— as for instance, -what is to be consider- ed the bank of a river — other grants from the Crown are admissible in evi- dence to assist the construction ; and grants from the Crown, either for a valuable consideration or of special favor, are to be construed in the same manner as deeds from subject to sub- ject. Clark et al. v. Bonnycastle, iii. 0. S. 528. Co?tstruction of grant conveying land to within one chain of a river.] — 8. A grant from the Crown convey- ing land to within one chain of a river, means to within one chain of the edge of the river, and not of the top of the bank of the river. Stanton et al, v. Wimleat, i. U. C. R. 30. Land described as extending to loader's edge — Meaning tfiereof.] — 9. V^WIRBWm I4S CROWN GRANT. CROWN GRANT. Where land was granted by the Crown bordering on Lake Ontario, and vva» described in the grant thereof as ex- tending to the water's edge, it wgs held that under this description the water's edge must be the boundary •wherever it might be, and that there- fore that land which was gradually and imperceptibly formed by the re- ceding of the water would belong to the grantee, the boundary of tiie lake being fluctuating, and the grantee not being restricted to the land extending to where the water's edge was at the time of the issuing of the grant. Land gradually and imperceptibly formed by the washing of sand aiid shingle from the lake, is the property of the owner of the adjoining land, even ahhough the formation is caused by the artificial erections of a Harbor Company who are entitled to particular privileges by act of pariiament. Doc dcm. McDon- ald V. The Cobourg Harbor Com- pany, Mich. Term, 7 Vic. [But if land be covered with water by the gradual encroachment of the sea, or an arm of the sea, the land so covered reverts from the subject to the Crown. In re Hull and Sdby RaUway, v. M. & W. 327. Lands granted improvidenthj for Hie Ridcau Canal.'] — 10. Qucerc: Whether any grant improvidently made by the Crown of lands set apart for the Rideau Canal, before the passing of the act 7 Vic. ch. 11, would not be void at common law if injurious to the canal, witliout the necessity of j)ro- ceeding by scire facias to repeal it ? Doe dem. Malloch v. The Principal Officers of Her Majesty's Ordnance, iii. U. C. R. 387. 11. Held, that lands which had been so granted, before the passing of the Vesting Act, 7 Vic. ch. 11, but after- wards marked out and reserved by the Ordnance Department as unnecessary for the canal, became again re-vested in the Crown. lb. Notice of lease from the Croirn to person in possession before such lease — Trespass, tvithout entry of lessee."] ; — 12. Where a lessee under the Crown i gave notice of his lease to a person I who had been in possession of the land leased, without license, before the lease was granted : Held, that without actual entry, he might maintain trespass against the intruder for cutting down timber after such notice. St. Leger : V. Manalian, Easter Term, 6 Wra. I IV. I When original g?-ant mutilated, ex- ' cmplif cation necessary.'] — 13. Where a party relies on a grant from the Crown, in making his title, he should procure an exemplification if the ori- ginal be so mutilated that its con- tents catmot be accurately ascertained. GofKltitlrdnn. Snyder v. Baker,M\c\i. Term, 7 Wm. IV. Contrd of particular description^ over general stafenivnt of number of \acrcs.] — 14'. Where the number of acres mentioned in grant from the Crown does not correspond with the quantity of land according to the des- cription in the grant, the description will control. Doe dem. Manning- v. l''ergusson, Hil. Term, 2 Vic. Const ruction of descrijition.] — 1.^. Heltf, tiiat a grant from the Crown for " all that certain parcel or tract of land in the township of York, containing 200 acres, more or less, (including lot 21 in the 7th concosision), being the clergy reserve lot 21 in the 6th con- cession west of Yonge Street, in the said township," the land not being set out by metes and bounds, conveyed to the grantee lot 21 in the 7th concession, as well as lot 21 in the 6th concession. Doe dem. Keating v. Wyant, Easter Term, 5 Vic. Adverse jKJSscssion docs not opn'otc against the Croivn.] — 16. Under a crown grant, the grantee may maintain ejectment against a person who has been in adverse possession for upwards of twenty years, and it is not necessary that the Crown should proceed by in- formation of intrusion in such a case CURRENCY. CUSTOMS ACTS. 149 before the grant should specially con- vey the Crown's right of entry on the land to the grantee. Doc dcm. Fitz- gerald V. Finn, and Doc dcm. Fitz- gerald ct al. V. Clench, i. U. C. R. 70. Grant conveys the ])osscssio?i tnj operation of laiv.'\ — 17. So long as there is no other person in possession, claiming adversely to the grantee's title, the grant and title given under it carry the possession by construction of law to the owner of the fee— a visible actual possession by the owner, or by those claiming through him, need not be proved. Doc dem. Maclcm v. TurnbuU, v. U. C. R. 129. CROWN GRANTEE. See Crown Grant, passim. — Eject- ment, I. 6, 26. — Intrusion. CROWN LESSEE. Sec Ejectment, I. 26. CROWN LOCATEE. See Case (Action on the), 3. — Ejectment, I. 6. CROWN NOMINEE. Sec DowER,1. 1. — Estoppel, 1,2,3. CROWN AND PLEAS(CLERK OF) See Clerk of the Crown and Pleas. CURRENCY. See Account Stated, 1. New York currency.'] — Dollars and cents are not New York currency witii. in the meaning of the statute 2 Geo. IV. ch. 13. Phinny ct al v. Steven- son, i. U. C. R. 42S. CUSTOMS ACTS. Sec Carrier, 9. — Goods Sold, 4. — Illegality, 1. — New Trial, II. If). — Notice of Action, 6. — Wit- ness, 23. Certificate to officer of there being 'prdmhle cause of seizure — Wften a defence.'] — 1 . Where a claim for goods seized for an alleged infraction of the revenue laws was brought before the commissioners of customs, under the provincial statute 4 Geo. IV. ch. 11, and the commissioners upheld the claim and restored the property to the claimant, without any trial or verdict passing upon the matter, but gave a certificate to the officer of customs who had seized that there was a probable cause of seizure, such certificate how- ever, not being entered of record in any way : Held, in an action of tres- pass against the ofhcer for the seizure, that the certificate afforded him no protection, either under the provincial statute i Geo. IV. ch. 11, sec. 27, or' the imperial statute 3 & 4 Wm. IV. ch. 59, sec. 72. Lcivis v. Kirby, i. U. C. R. 4.S6. Croods entered at a port atid accept' ed by the collector, cannot be seized at another jmrt as luivins: been under- valued.] — 2. Where goods subject to an ad valorem duty have been entered at a port in this province upon the importer's own declaration of value, which the collector had accepted and acted upon, the same goods cannot af- terwards be seized by the collector of another port as having been under- valued upon their entry with the first collector. Rci^ina v. Jugger et al., iii. U. C. R. 255. Elegal scizu7T..] — 3. A collector of customs at a port of entry Ikis no power to direct that all vessels and boats coming from a foreign country by inland navigation shall come to re- port at a particular place within the port ; and although it is necessary that all goods, whether dutiable or not, shall 150 CUSTOMS ACTS. DEATH. remain on board until a permit is grant- ed to land them, yet the horses and carriages of travellers may be landed without any permit, after the arrival of the vessel in which they have been con- veyed lias been reported to the col- lector ; and if the collector should seize the vessel as forfeited, either because the master did not bring his vessel to the place he had appointed, or because the horses &c. of travellers were land- ed without a permit, such seizure would be illegal ; and although in such a case no claim should be entered under the imperial statute 4 & 5 Wm. IV. ch. 89, sec. 25, by the owner &,c. of the vessel, the collector would not be pro- tected in an action of trespass for the seizure. McKcnzie ct lU., v. Kirhy, Trin. Term, 5 & 6 Vic. When goods are liable to be seized, and not titc vessel."] — 4. If dutiable goods be brought by inland navigation to a port of entry and there entered, and the goods are afterwards landed without a permit, they are liable to seizure, but the vessel in which they were brought is not. And if the du- ties on dutiable goods be offered to a collector and he refuse to grant a per- mit, either on the ground that the sum tendered is insutlicient in amouut, or for any c! er reason which may not be tenable, if the goods be afterwards landed without a permit they are lia- ble to forfeiture, and the only remedy for the owner is by action against the collector for the injury which he may suffer by the refusal of the permit, lb. Evidence under, " not imported in manner and form, ^?'*'\ — 5. Under a plea of not imported in manner and form, &;c., to an information for the condemnation of goods as illegally im- ported, evidence may be given that they were landed through stress of weather. Tlie Attorney General v. Spafford, Dra. Rep. 333. Inforniat.ion under 8 ij- 9 Vic. ch. 93.] — 6. Qutere: Would an informa- ti "^n lie under the 66th clause of the imperial act S & 9 Vic. ch. 93, where the party informed against was a per- son shewn not to have transported or harbored goods of another, but his own goods, smuggled by himself on his own account? The Attorney General \, Warner, vii. U. C. R. 399 Claim of a foreigner forwarding goods about to be smuggled.] — 7, Whether a foreigner forwarding pro- hibited goods to place in the United States so situated as to furnish a strong presumption that they would be smug- gled, can maintain an action for the price of such goods. See Sawyer v. Manalian, Tay. U. C. R. 430. DAMAGES. See Absconding Debtor, 17. — Amendment, III. 11. — Arbitra- tion AND Award, III(1),2,6; IV (3), 7. — Assumpsit, II.' 8, et seq. Attorney, 11(1), 11. — Bills of Exchange etc., VIII, 2, 3, 6. — Bond, II. 9. — Case (Action on the), 1, 2.— Covenant, 11(2), 13, 14, 15.— Distress, II. 1, 3.— Di- vision Court, 6. — Dower, III. — Ejectment, II. 6, 11. — False Imprisonment, 10. — Indemnity Bond, 10. — Libel and Slander, 111(2), 6.— Limits, II. 10.— New Trial, 1.4; IV.'2 ; X. 26.— Nui- sance, 2, 3. — Penalty. — Prohi- bition, 1, 2. — Set-off, 1. — Sher- iff, III. 19 ; IV. 7.— Trover, II. 5, et seq. — Venire de novo, 2. DAMAGES (ASSESSMENT OF). See Assessment of Damages. DEATH. I. Presumption. See Evidence, VI. II. Proof. See Evidence, III. 1, 2. DBCLARATIONS. DEED. 151 DEBT. See •Amendment, III. 11. — Arbi- tration AND Award, IV(3), 8 ; VI(2), passim. — Arrest of Judg- ment, 6. — Billiard Tables, 3. — Bond, II. — De Injuria, 4. — Dis- trict Council, 3, 7 — Foreign Judgment. — Gas Companies, 2. Heir, 1, 5. — Indemnity Bond, 5, et seq. — Indorsement, I. 9. — Judgment, 19. — Maintenance (Statute of), 18, 19. — Midland District Turnpike Trust. — To- ronto AND Lake Huron Rail- road Company. When maintain^iJble — PenaitiesJl — 1. Debt lies to i^cover penalties under the imperial statute 3 Geo. IV. cli. Hi. Jones qui tam v. Cfuicc, Dra. Rep. 334. First instalment of a mortgage.^ — 2. Debt does not lie for the first instal- ment of a mortgage before the others are due. Forsyth et al. v. French ct al., Hil. Term, 3 Vic. Collateral undertakings.] — 3. Debt on simple contract does not lie on any collateral or conditional undertaking only. McLeod v. l^nsley, vii. U. C. R. 40. Consideration must move to debtor himself.'] — 4. To support an action of debt on simple contract it must ap- pear that the contract has been entered into for a consideration moving to the debtor himself, and not as in assumpsit for a consideration moving from the plaintiff to a third party. lb. DECEIT. See Fraud. DECK LOADING. See Carrier, 10, 11. — — • — DECLARATIONS. Sec Deed, III. 9. — Evidence, VII. 5. DEDICATION OF LAND FOR A ROAD. See Highway, 5, 6, 7, 8, 9. DEED. See Assignment (Deedop).-Crown Grant. — Fraudulent Deed etc. Mortgage.— Profert.— Release, I.— Sheriff's Deed.— Surrender. Trover, I. 2, 3 ; II. 7. I. Execution. II. Construction AND Operation. III. Registration. IV. Other Matters. I. Execution. See Evidence, V. 3, 6. Execution by an illiterate person."] — 1. A deed executed by a person making his mark is not invalidated by the mere omission to read it over to him. Doc dem. Biggardv. Millardf Easter Term, 3 Vic. Execution under power of attor- ney.] — 2. A. received from B. a power of attorney to sell lands ; under this power A. delivered to C. a deed pro- fessing to be made as follows : " Be- tween A., by and under power of at- torney, bearing date &c., by and from one B. &c., yeoman of the first part, and C. of the other part." Through- out the deed, A., the said party of the first part was made the grantor, and the deed was thus executed : " By power of attorney, bearing date, 14th April 1849. . (Signed) A. [Z. S.^ (Signed) C. [Z. S.j" Held, that A. being the granting party in the deed, and not B., B.'s interest did not pass by the deed. Semble: That even if B. had been made the granting party, the deed would have been inoperative, from the informal mode of execution. Dacksteder v. Bairdy v. U. C. R. 591. [The proper mode of signing a deed under a power ol attorney, is to sign in the name of the principal. WhUe v. Cuylcr, 6 T.R. 176.] 1 1 152 DEED. DEED. II. Construction and Opkration. See Amen, 1,3. — Appuk.ntici;. 1, 2. Deed,I.2.— Ejkctment, VII i. 10. Estoppel, 2, 3. — Kvidk.nck, I. 2. executou etc., i. 10. i.nfant, 1. — Maintenance, (Statute of), passim. — MoRTCACE.passim. — Re- lease, I.— Trespass, II. 2S. Descnptinn of /(uid.'] — 1. Whore in a deed a certain quanlity o(" land and half of a saw-niili tlien-on erected were conveyed, and the description (if the premises covered the whole site of the mill : //rA/, that the express words must control die operation of the deed, and that the vendee was entitled to one-half of the mill. Docdem. Mil- ler V. Diomn, iv. O. S. 101. 2. Where land is described gene- rally in a deed as being part of lot number four, and the specific descrip- tion that is afterwards given clearly shews it to embrace a part of lot niiiii- ber three, the specific and not the general description must be talten to govern. Doc dem. Murray v. iimUh, V. U. C. R.22r). 3. Where land is so particularly described in a deed by its local abut- ments as to enable any one to find it with certainty, it is unnecessary to state further in what lot in the town- ship the land lies. If therefore the land 80 described is stated to be part of lot number forty-two, when it is in re- ality part of lot number forty-five, the deed is nevertheless certain and good. Doe dcm. Notman v. McDonald, v. U. C. R. 321. [See further, Crown Grant, 6, 7, 8, 9, 14 and 15.] Deed of married tvotn.cn's estates."] If a married woman seized in fee of lands execute a deed thereof with her husband, but without the ac- knowledgment required by .59 Geo.III. ch. 3, such deed is as to her, or her heir, absolutely void. Doe dem. Vansicklvr V. Fairwelly Mich. Term, 4 Vic. [866 08868 7,8.1011 10, Infra, and Ejkct- ment, I. 13. Also, see " Lowkr Canada."] That care should be ! taken that the deed should expressly ! convey the interest of the husband ; I for if the deed merely shew that he I joins for conformity and to manifest his ' assent to liis wife parting with the es- tate, his interest will not pass. Doe ' dcm. McDonald v. Tivij^g et al., v. U. C. R. 167. 6. A deed of bargain and sale, pur- porting to convey the real estate of a i'eme coverte in which the husband is not named as a party, but only in the description of the feme, is not eflectual, under the provincial statutes enabling married women to part with their real estates, although signed and sealed by tlie husband. Dnc dcm. Bradt v. Hndg/:i,is, li.O. S. 213. 7. Under our act 59 Geo. III. ch. 3, a deed executed by husband and wife, but without an examination of the wife and a certificate thereof, is void ; so that notwithstanding the deed, die husband may maintain ejectment during the coverture. Dnc dem. Mc- Donald V. Tut'ng etal., v. U. C. R. 1G7. 8. Semhlc: However, that under the more recent act, 1 Wm. IV. ch. 2, the grantee's possession cnn i"' he dis- turbed during thi- life-i le of tn ..us- band. lb. [See Doe d- 10. ■ e V. Ten Eyck, i- 'ra, 9. A deeu i partition by a leme coverte, tenant in coniTi ui, will not be binding on her estate, >.iiles8 there be indorsed on the deed a certificate of her examination and consent, &:c., by a judge or justice, as required by our acts 1 Wm. IV. ch. 2, and 2 Vic. ch. 6. McKinnon v. Arnold, v. U. C. R. 604.. 10. Under either of the provincial statutes, 43 Geo. III. ch. 5, 59 Geo. III. ch. 3, or 1 W^m. IV. ch. 2, a deed professing to convey a married woman's estate, executed by her jointly with her husband, but containing D£KD. DEED. 153 V. no certificate on it of the wife having been examined as the law re(|iiiies, is inelTeciiial to l)ar citlier///<; irifror lirr husband diiriiis mvcrturv or dftrr- wards. Dacdnii. DihUcv. Trii.Eifi:k, and Dw drill. Dibble v. Mcnzivs, vii. U. C. R. tiOO. Convrynncc by dcvhcc as hcir-al- /a?/^] — 11. If a party convoy land as heir-at-law of auotlior person de- ceased, though he claim as devisee and not as heir-at-laic, still by his deed he conveys nil his interest, whether as heir-at-law or devisee. Dor. dnii. Clark V. MeJnnis, vi. U. C. R. 28. 12. Construction of conveyance, as to the necessity of averring allirma- tively, in declarinsr tliceon, that the plaintifl' had sold lands, or why he had not sold them, before he could entitle himself to sue upon the covenant for the non-payment of a sum of money. See K(tif et al. v. GaiiMe et al., vi. U. C. R. 2f)7. Effect of the irnrds " tn the use nf.'"''\ —13. It is superUuous in any il(>etl of bargain and sale, to express that l!'/ land is to be held " to tlio use of the bargainee. — The omission, therefore, of these words, can have no elTect in transferring the le;:al title to some per- son other than the barirainee. Gam- ble et nl. V. Rees, vi. U. C. R. 397. Collateral seenritif.'] — l-i. IJehl, that the deeil as set out in the i)lead. ings in this cause, shewed clearly an intention on the part of the bank to take it as collateral security, and not as an assignment in satisfaction of the notes in dis])ute. Bank of liritisli North America V. Slier leood, vi U. C. R. 552. III. Registration. See Maintenance (Statute of), 8. Mortgage, 8, li Sheriff's Deed, 5. Registry ofsecoiul deed, even with tuaice, secures the title.'] — 1. Wliere u A. conveyed in fee to B. and died, and afterwards his heir conveyed the same land in fee to C, whoiie deed was re- ilistered before the deed to B. : Held, that C.'s deed being first registered s.'curcd him the title, although he had notice of the deed to B. Doe dem. Pell v. Milcheiier, Dra. Rep. 484.. To uiiiii, priority, the title must be prerious/y a. re<^istered one.] — 2. The Registry Act does not ai)ply where no deed has been previously registered, so as to make a subsecpient registered deed valid against a prior unregistered one. Doe dem. Henncssy v. Myers, ii. O. S. 424. [Uphold ill Doe dem. Atkins \. Mkinion, 7 infra, iiiid A'wson v. Easticuod, 17 inira, and I'tirllier case lU intra.] Second deed from same party re- 1, a deed of bargain and Bale does not retpiire registry nor en- rolment, to make it a valid conveyance. Doc dan. Adkins v. Atkinson, iv. 0. S. UO. Deed foil npcratc!^ as a bargain and sale — -l- Wni. IV, ch. 1, sec. -t?, rctrosjieedir.'] — S. A deed poll will operate as a baruain and sale ; and the etatute i Wm. IV. ch. 1, sec. 47, has a retrospective operation so as to make deeds ol bargain and sale executed before the act valid, without registry. Rogers et al. v. Barman, Trin Term, 6 St 7 Wm. IV. [See also, Doe dan,. Loucks v. Fisher, infra 14.] Dechirntion of execution made in England under ^ ij- (i IF- IV. ch. 62.] — 9. The Court refur' ' a manda- mus to compel the registrar of a county ivj register a deed on a declaration of its execution made in England under 5 & 6 Wm. IV. ch. G'2, which substi- tutes declarations for oaths in certain cases, as that act does not extend to the colonies. Lyons In re, Hil. Term, 7 Vic. [But see 9 Vic. ch. 34, see. 10.] Action against registrar frr treble images, tehcn maiiitainalile.'] — 10. An action cannot be broiiLdit against a registrar for treble tiamnges under the 10th section of the act 3.") Geo, III. ch, 5, until he lias been c(mvicted un- der that section of some odence for which he shall forfeit his ollice. Ham- ilton V. Lyons, Easter Term, 7 Wm. IV. Cert i finite of reuistry rnnnot he iviprach.ed by evidence.^ — 11. The certificate of legistry indorsed on a £«EEO. deed is conclusive cf the registry, and cannot be impeached by evidence that it has been irregularly done. Doe dcm. Russell v. CHillett, Mich. Term, 3 Vic. Only 'prima facie, not conchtsive evidence.'] — 12. The certificate of re- gistry indorsed on a deed under 35 Geo. III. ch. 5, sec. 5, is prima facie evi- dence only of registry, and is not to be taken as incontrovertible evidence of the fact of registry, so as to exclude all proof to the contrary. Doe dcm. McLean v. Mantdian, i. U. C. R. 491. [See Mortgage, 8.] Evasion af registry laics."] — 13. Where A. hohliiig land under a regis- tered title, sold to B., whose deed was not registered, and B. sold the land to C, and after sale, sold it again to D., who registered his deed, the deed to C. not having been registered : Held, that C. could not, by obtaining and re- gistering a release for a nominal con- sideration from the l.'r of A., obtain priority over D., as C. could not be considered, as to the release, a subse- (pient ])Mrchaser for a valuable consid- eration. iJoc deni. BLijor v. Rey- nolds, ii. U. C. R. 311. 4 Wm. IV. ch. 1, sec. 47, retro. spectice..] — 14. The provincial statute 4 Wm. IV. ch. 1, sec. 47, which de- clares that it shall not be necessarv to enrol or register a deed of bargain and sale for the mere purpose of passing the land, applies to such deeds exccu. ted before as well as since the passing of that statute. Doc dcm. Loucks v. Fisher, ii. U. C.R. 470. Registrar must receive affidavits, Strom, before commissioners, as well u-idiin as iritliout his county.] — 15. Under the 7th clause of the Registry Act, H Vic. ch. 34, the registrar of a county is bound to receive j)roof of deeds, by afiidavits sworn before a conunissioner of this Court, as well where they are executed within the county as without. Registrar of the DEED. DEED. 156 County of York, In re, iii. U. C. E. 188. Re-rcsistry wider 56 Geo. HI, cli. \6,an(lM Geo. Ill.ch. f), sec. 2.]— 16. A., the grantee of the Crown, conveys to B., B. conveys to C. — Tlie conveyance from B.toC. is registered in the Niagara District, before the war of 1812. — The record of registration is burnt during tlie war. — C.'s deed is not re-registered according to the pro- visions of the 56 Goo. III. ch. 16. — C, after the war, convoys to D., who does not register iiis dood, C. asain conveys to E., without consideration, who registers. — E. conveys to F. for a valuable consideration, who also regis- ters : Held, that C. not having re- registered his title in compliance with the provisions of the statute 56 Geo. III. ch. 16, had not the clVect of se- curing the title to D., by making C.'s title an iinrcgisten'd title at the time of his coiweyance to E. IlvJd also, that F. having given a valuable con- sideration for his deed from E., the fact that E. had given no consideration for his deed from D. would not defeat the operation of 'le Registry Act, .35 Geo. III. ch. 5, '1 favor of F.'s regis- tered title as Oj^ainst D.'s prior un- registered one. Doe de?n. Mdtloek v. Dislier, iv. U. C. R. U. Evidence necessan/ tnjwutpone prior unr.eiiistered deed.^- \1. In order to postpone a prior deed on account of non-registry, evidence must be given at the trial to shew the title a registered one, before the prior deed was given. Neeson v. Easticood et al., iv. U. C. R. 271. Trust deeds for treditors."] — IS. The second clause of the Registry Act 35 Geo. III. ch. 3, does not apply to deeds given to trustees for the benefit of creditors. lb. To p,ain priority a vain able con. sideration must he slieivn.'\ — 19. A party who claims under a subsequent conveyance, and seeks to displace the first by reason of tlie prior registry of his deed, must, before he can recover in ojectnicnt, give some proof that he stands in the [wsition of a purchaser or mortgagee for valuable coiisidi-ration. The production of the subse(|uoiit deed, stating on the face of it a valuai)le con- sideration, allbrding no evidence of consideration as against a stranger, will not do. l)oi' deni. Crn/ilc ot ul. v. Smith, \\i. ... C. R. 376. Registrar not entitled to fees for entrif in tlie margin if viennirials.^ —20. Under the Registry Act 9 Vic. ch. 34', the registrar has no right to charge fees for the entry he makes in the margin of memorials. Keelc v. Ridont, V. U. C. R. 240. Fees, u-Jie?i linids in. several toivn- sJn))s.] — 21. Held, that under the Registry Act, 9 Vic ch. 34', the regis- trar must record the memorial of a deed, &c., in every township of his county m which the lands embraced in the deed are situated. Also, that he need not enter in the book of any township other lands than those lying ia that township. And also, that his '>ro])er fees are 2.s'. Hd. for the first hundred words ol tht; registration in each book, and l.s'. for every hundred words over tlie first hundred in such rciristratioti. Sniitli et a!, v. Ridoutf v.U. C.R. 617. IV. Other JMatters. See Arbitration and Award, IV (1), 10— Bond, I. 4., 10.— Cove- nant, I. 1,2,3,6; 11(1), 3, 5; II (2), 1, 2, a, f), 8, 9, ] 2.— Eject- ment, Vlll. 15. — Evidence, II. 5. HiCHWAY, 6. Court vill set aside deeds if f rand he practised in o/itaining tiiem — Evi- dence itf fill nil. '\ — 1. A court of law has powoi to set aside a deed wiiere a jury finds that actual fraud had been practised in oiitaining it, and although mere inado(|uacy of price is no ground for impeaching a coiivoyunco, yet, wiien taken in connection with the mental imbecility of the party executing 166 DE INJURIA. I)E INJURIA. it, it goes strongly to prove fraud. | Doc dem. Jones v. Capn'dy iv. O. S. 227. I Premmitium of deed after turiity years' possession. | — 2. Where a con- j veyance ouglit to have been inntle, the Court will presume that one lias been made after a peaceable possession for , twenty years. Doe dem. Wilson et al. V. Wcssels, Trin. Term, G &. 7 , Wm. IV. 1 DEEDS OF ASSIGNMENT. See Assignment. — Fraudulent Dk£D etc., passim. DEFAMATION. Sec Libel and Slander. DE INJURIA. See Bills of Excha nge etc., V. 27 ; VI. 5 ; VII. 4, 6. — Composition. Indemnity Bond, 5. — Patent, 1. Sheriff, IV. 2. Tied, settins vp matter of excuse — Rqalication, de inj)iria.'\ — 1. Tiie defendants pleaded that the note was indorsed to the piaintill' by the payee ' in fraud of the defendants and without consideration, to deprive the defen' dants of a right of set-oil" which they had at the time of the indorsement against the payee ; the plaintilT replied de injuria. — Demurrer, thai the re- plication is inapplicable, the plea beini wheat to C, until he (the warehouse- man) had been previously satisfied a demand of his own against C, wholly unconnected with the transaction be- tween A. and C: Held, ihat upon Buch refusal C. could sustain an action against A. for the noii.delivcry of the wheat, the delivery order when given to the pir'haser not being an actual delivery ui the wheat, but merely an evidence in the hands of the seller that he had the wheat in B.'s warehouse, and in the hand of the purchaser that he had the right to demand the wheat from B. Proudfout v. Anderson, vii. U. C. R. r)73. DEMAND. See Elections. — Evidence, VIII. 5. DEMISE (IN EJECTMENT). See Amendment, II. 8, 17, 18.— Ejectment, II. 1, 2, 6, 9, 11 ; V. 4; VIII. 19. — Lease. — Presby- terian Church, Galt. — Reli- gious Societies, 3. demhrrage. What deinurruiie reroverallc under eoniinon cfnuit.] — 1. The count for demurrage can only authorize a re- covery for a sum of money due on an express contract to pay demurrage eo nomine, not a recovery for demurrage for wrontiluily detaining the vessel when nothing had been specified about demurrage. Bnnvn v. Ross et ul., v. U. C. R. 1.96. Aetion for fre/uht — Demvrrage — Aiit eeuient — Kridenee — Misjoinder of efuniis.] — 2. The plaintilVs were owners of the Laily Bagot, in which wheat was brought down Lake Erie to the defendant, to i)e storetl lor Messrs. Young & Co. When it was brought to the defendant the master of the schooner demanded 22/. lU.s. for freight and 190/. for demuirnge, and said he had a lien on the wheat to that amount, and wished the defendant to pay it before he would deliver the wheat. This the defendant declined, but it was agreed ./etween them that the defen- dant should receive the wheat upon giving the following undertaking in 'M • i 168 DEMURRERS. DEMURRERS. i writing: " I will retain TnO bnsliols of| wheat, the j^-opcity of i\Ii '--^rs. Vuunir & Co. of INIontival, ami jKirt of llic cargo ot' the Lady Baiint, until your claim lor tleniurraiic tor lirli-nlioii ol'^ the schooner Laily Bagot at Saiulusky | is settled, also co wring Iroight on ] amount retained." The plainlitl's sul)- i Bequei\tly demanded the wheat iVoni the defendant, who, allhouuh still re-: taining it in his possession, ileclinod toj give it up to the jilaintill's, saying that he was indeinnilkHl liy Messrs. Youiiir & Co., who ret'iiset! to pny the piain- tifls' claim. The plaiutill'-; ui)on these facts sued tlie delemlants on three counts: 1st, specially upon the case.i alleging the plaintifl's' right to lien fori freight and demurrage, then setting I out the agreement, and assigning as a breach of the defeiidant's duty his de- ! livering the wheat to Messrs. Young & Co. without payment ot" jjlaintills' lien: 2nd, upon an agreement to re- deliver the wheat to tlie plaintill's when requested, and a breach of duty in not delivering: 3rd, in trover. Jlr/fl, that the evidence did not support the first count, as tlie defendant still retained the goods ; nor the second, as there ■ was no agreement to deliver to the plaintill's; nor the third count, as the agreement admitted the ])ro|>erty in the wheat to he in Younsr &; Co., and not in the plaintill's. Jlt/tf ii/sn,\hai the second count, heint: properly in ; assumpsit, could not he joined with tlie | count in trover, and that the plaiiitills under the circumstances had no lien for either freight or ilemnrrajie. Lai/tf et al. V. Wtxxitrarff, v. U. C. R. 190. DEMURRERS. See Acconn ami Satisiaction, 9. Amendment, li. 2C. — Aunr.sr ui- JuDGMENT, I. — Assessment of Damages, 1. — Costs, V. — Nll tiel record, 1. — partition, 2. — Practice,!. 12,22.— Siaiiliter,2. Wi/lidratra/.'] — 1. The Courtgave leave to vviliulraw a demurrer upon payment of costs :iiid pleading issua- lilv, tiioUL'li the plaintiir had lost a trial. 7V//// wC'/ahaM, Tay. U. C. R. 4.5. [ir a (Ifft'iulaiit (lemur 'n ndcclaration, anil llic plaiiiliir iUiRMid oil jiayiii^ tlie ooslsof the (Iftiuirrci- In ihi- (Iftomliiiit, tli.it is ((luivalpiit to a wiilidrawiil ol' tlr.- iltniiirior, ami I'litities the ili'ti'iiiiaiit to plead de novo. Smith v. Ikiirn. xii. .M. & \V. 715.] 2. When a demurrer has been ar- gued and judgment pronounced it can- not be wiliidrfiwn if the trial has been lost,althoiiirh the plaiiitilV would have to assess his damaL;es. (Sherwood, J. disseiitiente.) Jj(/l v. ISlru-arl, Dra. Rep. His. 3. Leave to withdraw a demurrer to a plea of accord and satisfaction to an action liir hreach of coventint, was refused. Jhii/ard v. ranri(hj.v, Tay. u. c. R. r)r)S. Joiiidrr indcmnrrcr.'] — 4i. A plain- till' who has demurred to a defendant's plea, cannot sign interlocutory judg- ment for the want of such joinder, his projier course being to add it himself. Miininf v. Hcran, Easier Term, 7 Wm. IV. S/)rr/(i/ (lomirrrr — N/////ti/.'] — 5. A piaintill cannot treat a special de- murrer as a nullity, and si^n jiuLmient for want of a plea, though the demur- rer mav ii|ipe,".r Involmis. ti(,j)cr v. Drtijwr ct a/., ii. O. S. 281). Amrntlinoit.'] — (5. SoiifJr: That a deiiiuner cannot be amended with- out the consent of the opposite jiarty ; where, therefore, the defendant, inten- ding to demur to the replication to the Kccoiid plea, did in fact demur to the replication to the first plea : Ihld per ('in\, that they could not decide upon this demurrer as if it were a demur- rer to the re|)lication to the siin/ul plea. I'c/n/ v. Ci'nnrr, v. U. C. R. 331. CmttiscPs sipiatvrr.'] — 7. Where a demurrer was signed " A. B., defen- dant's attorney," A. ]J. beinf" botli the counsel and attorney for thu defeiidaiit: DEMURRERS. DEMURRERS. 159 Held, that the signature was sufficient, \ stated the plaintiff really has no ground as the words " (lelbminnt's attorney" j of action. Shuuldicc v. Fraser, vii. might be rGJeoteJ as suiplusatre. Lc nwme v. licipuond, Hii. Term, 5 Vic, P. C. iAicLe:in,J. PmntiDu: out drfirts, ivhcn qiccmh'] — 8. Ifan ol)joction to a pleadinff he taken on special ileiinirn'r, it must distinctly jioiiit out the licfecl olijccted to. Small V. Bcusliij, iii. U. C. R. 40. IVilJidraiad, of dniiurrcr — Judg- ment on vhole yvco/v/.] — f>. Wiiere a plainlitl'deiiuuTcd s[iecially to a plea of the dcfcndiitit's, coiifestinir the ac- tion, because it concluded neitlier in bar nor alialiMuent — the Court, in iriv- ing judirmtiit against the demurrer, allowed the pl;iintill'to withdraw it on payment of costs, ami to take judgment on the whole n>cord. StucLuig v. C!eading. Gordon v. Clcg- liorn, vii. U. C. R. 171. Defendant ?iot idloiced to object to declaration fnnn nature of denmr. rcr.] — If). Where the defences were severally pleaded to the several counts of a declaration, and demurred to, and not su|>iK)rted, and on the argument of the denuirrer an excej)tion was taken to the whole declaration that it was bad for a misjoinder of counts, the first and third counts being in assump- sit and the third in case — the Court, though they admitted the declaration to be bad for the reason assigned, would not give judgment against the plaintiff, the question upon the incon- sistency of the declaration as a whole having been raised under the demurrer. I\TcLc(hI v. Ebcrts et al., vii. U. C. R. Leave to amend — Filing a special demurrer in lieu.'] — Ki. Where a ]iarty who had obtained leMvc to amend liis re])licatioii. filed a special demurrer in its stead, and a judge in chambers set the demurrer aside : JJeld, upon an application to rescind the judge's ^f s 11 160 DESCRIPTION OF PREMISES. order, that the jmigo hail properly de- cided. Tl-r Gore Bank v. Chase, vii. U. C. R. 454.. Rit/c with staij of proceediNi^s — Notice of ariitdiient of deinurrer ir- rcguiar.] — 17. Where a rule with a stay of proceedings has heeii taken out and served to shew cause why a ver- dict rendered shoulil not be set aside for irregularity, a notice of argument of demurrer, and the setting down the same demurrer given sui)sequently to the rule, will be set aside witli costs. City Bank v. Ecdes, v. U. C. R. (i33. DISTRESS. II. In DEci-AnATioNsor Ejectment, AND Consent Rules. See Amendment, II. 3. — Ejectment 11.5,10; IV(1), 1,2,3,5,7. DEPARTURE IN PLEADING. See Pleading, V. DEPOSIT ON SALE. See Auction etc., 3. DEPUTY CLERKS OF THE CROWN. Sec Attacmmknt, I 1. — Capias ad Satiskacik.n'dum, 1 1. — Interlo- cutory Judgment, 13. — Judg- ment, 10, 11. SUKUIFK, II. 1. DEPUTY SHERIFFS. Sec Bond, II. 12.— Escape, 18.— ■ Sheriff, I. 12; HI. J>; V. 17.— Sherif f's Deed, 4'. — Witness, 15. To charge a sherill' with the acts of his deputy done colore otVicii, it is enough to prove the authority of such deputy by general leputation. Holt v. Jarvis, Dra. Rep. 200. DETINUE. Sec Tuov:^R, I. 3. « DEVASTAVIT. Sec Capias ad Satisfaciendum, -t. — » — DEVISE. See Will. DESCRIPTION OF PREMISES. I. In Deeds and Wills. Sec Crown Cihant, (i, 7, S, 9, 14, 15. — DEED,il. 1,2,3. — Evidence, I. 3.— Sheriff's Deed, (j. — Sur- render, 3. — Survey, I. — Will, 0| O* DIES NON. Sec Sunday. DISCLAIMER. See Ejectment, I. 2,8, 9, 10, 11, 12, 27. — Trust and Trustee, 1, 2. DISHONOR (NOTICE OF). See Bills of Exchange etc., III. passim. DISSOLUTION OF PARTNER- SHIP. Sec Arbitration etc., III(l), 2 ; 111(2), 9. DISTRESS. See Taxes, pa.ssim. 1. Right of Distress, and Pro- ceedings THEREUNDER. II. Actions for excessive, irreg- ular, OR wrongful Distress — Fleadinus and damages therein DISTRK.SS. DISTRESS. 161 I. Right OF Distress, AND Proceed- ings THEREUNDER. Sec By-laws, 1 . — Ejectment, VIII. 16. Rent j>ayuJ)lc in produce. "l — 1 . A distress may he made for rent for a 8um certain, payable in produce at tiie market price, and such distress may be sold. Th())itj>so/i V. Marsh ct al., ii. 0. S. 355. Rent iHi,y(Mv in leather.'] — 2. A rent of a sum certain reserved, payable in leather, may be distrained for. Cuni- mitig V. Hi/i., Hii. Term, 5 Vic. Yearly tcnannj — Timetndistrain.'] — 3. A letting at an annual rent con- stitutes a yearly tenancy, which con- tinues at the same rent for the second year as the first if the tenant remain in possession of the premises, and the landlord may distrain for the first year's I sf«^ v.^McCornuwk et al., Easter rent at the end of the second year ; and the Real Property Act, 4- Wm. tinuation of the tenancy will not neces- sarily l)e implied from the party's re- maining in possession of the premises without any act to shew the nature of the holding. Sojkt v. Brown et a/., iv. O. S. 103. Jl/ir/ti of landlord to distrain wlten his interest has ceased.] — 7. A land- lord caimot distrain where his interest in the estate has expired before the distress. Hartley et al. v. Jarvis, vii. U. C. R. 545. When cattle may he taken on the hiuha-ay.] — 8. Cattle may be taken on the highway as a distress, if driven olftiie land in the view of the bailiff; and if the legality of a distress turn ui)on the place of seizure, as whether it was a highway or not, that point should be left clearly to the jury. Hal. Term, 3 Vic. IV. ch. 1, sec. 20, does not determine the tenancy at the end of the first year, 80 as to make it necessary to distrain within six montiis afterwards. Mc- Clcnaghan v. Barker, i, U. C. R. 2(j. Present demise.] — l. Memoranda or heads of airreement, ascertaining no certain amount of rent, being pre]>ara- tory to a letting, and under which no rent has been paid before tiie distress, do not constitute a jjresent demise, en- titling the landlord to distrain. Cheney ct al. V. Taylor, i. U. C. R. 166. Distress nn stransier to lease.] — 5. A. demises to U. for a certain term, B., during the term absi:onds and aban- dons the property, C. finding the place vacant, puts a person in possession, and makes a demise to D. — A. dis- trains for rent under his lease to B. : Held, distress leiral. Rndolph v. Ber- nard, iv.V. C.R. 239. Mtule more thm six motiths after expiration of tenancy — Continuation of tettaney.] — G. A distress made more than six months after the expira- tion of a tenancy is illegal, and a cou- X Fraudulent removal — Folloioing i^fxids.] — 9. In case of a fraudulent removal the landlord can Ibllow the goods of his tenant only, and not those of a stranger, which had been on the premises. McArthur v. Walkley et al., Mich Term, 4 Vic. Vessels attached to a wharf not lia- ble ] — 10. Where a wharf has been leased, " with all the privileges thereto belonging," a vessel attached to the wharf by the usual fastenings cannot be distrained for rent. Sanderson et al. V. The Kin<:sto?i Marine Railway Company, iii. U. C. R. 168. Hop j)oles.] — Hop poles left stand- ing in the ground, after the hops growing u|)on them have been gathered, are not distrainable. Alway v. Anderson, v. U. C. R. 34. Sufficiency of ivanant.] — 1 1 . It is not necessary that a bailiff, to distrain for rent, should have a written warrant of distress, for if the warrant be insuffi- cient, but the landlord adopt the dis- tress, the bailiff may justify under hira. Hidstcd V. McCormack ct al,, Easter Term, 3 Vic. '.V' \'V\ I iliii. 162 DISTRESS. DISTRESS. Riqht of executors to distrain fr/r rent,^ — 12. A testator, by his will, desires that his executors shall sell and dispose of his land, and then nominates and appoints his executors, their ex- ecutors and administrators, to seal, execute, and deliver any deeds, that may be necessary for making a title to the purchaser : Held, that this devise vested no interest in the i^xecu(ors, but gave them a mere power, and conse- quently that they could not distrain for rent accruing in their own time, before the land was sold. Nicholls v. Cotter, V. U. C. R. 564.. Party ctctins ns pi'incipal justi- fijing as lMUiff.'\ — 13. Where a party assumes to act as priticiparm making a distress for rent, he cannot afterwards justify as bailiff' on the subsequent confirmation of the party entitled to the rent. Lambert v. Mars/i, ii. U. C. R. 39. Breaking outer door of sub-ten- atit^s apartinentJ\ — l-t. Where a sub. tenant has an apartment to which there is an outer door, it is illegal to break into that apartment to make a distress. McArlhur \. Waikleyetai., Mich. Terra, 4 Vic. Verbal notice Inj landlord to sher- iff. \ — 15. A verlxd notice from the landlord to thesheritf will be suificient to save the year's rent ; and if it can be shewn that the sherifl' knew of the rent being due, a formal notice from the landlord would not be necessar}'. Broion v. Rattan, vii. U. C. R. 97. [Also see Landlord and Tenant, I. 9.] Risht of mnrtiiagce to distrain.'] — 16. Where a mortgagee receives rent frokii a tenant, who had become such by lease from the mortgagor subsequent to the mortgage, but afterwards direct- ed the tenant to pay the rent to the mortgagor, which he accordingly did : Held, that the mortgagee could not distrain afterwards, as he had himself put an end to the implied tenancy cre- ated by his former receipt of rent. Lambert v. Marsh, ii. U. C. R. 29. II. Actions for excessive, irreg- ular, OR WRONGFUL DISTRESS Pleadings and Damages therein. Sec Replevin, passim. Property alloicrd to remain more than Jive days after seizure — Tres- pass."] — 1. Trespass lies for the sale of property seized as a distress and al> lowed to remain on the premises more than five days after seizure, but the full value of the property cannot be recovered. Tlwmpson v. Marslb et at., ii. 0. S. 355. [See case 8, infra.] Form of action for excessive dis- tress."] — 2. Where a landlord distrained for rent due, and also at the same time for rent not due : Held, that as the distress was legal in its inception, but excessive, that case and not trespass was the proper remedy. Kendrick v. Lee, Mich. Term, 3 Vic. Irregularity in distress — Damages.] — 3. In case for an irregular distress, if there were any irregularity, as if there had been no appraisement, the plaintiff is entitled to a verdict for nominal damages, although no dama- ges whatever be proved. Maguire V. Post, Hil. Term, 6 Wm. IV. Distress untlumt rent being due — Declaration.] — 4'. In an action upon the statute 3 Wm. & M. ch. 5, for taking a distress when no rent was due, it is not necessary to set forth in the declaration any tenancy between the parties, it is sufficient if it appear that the seizure was made under color of a distress. Stodtkird v. Arderlyy Hil. Term, 5 Vic. Appraisement.] — 5. It is no plea to a declaration for selling a distress without appraisement by two sworn appraisers, that the sum distrained for was under 20/., and that an appraise- ment was made by one appraiser un- der 1 Vic. ch. 16. lb. Special traverse to replication of surrender.] — 6. Where in trespass for taking goods, the defendant iiaving DISTRICT COUNCIL. DISTRICT COUNCIL. 163 justified under a distress for rent, the pJaintifT replied a new lease by which the demise under which the distress had been made was surrendered and determined by operation of law, and the defendant rejoined specially tra- versing the surrender, it was held that the special traverse was bad, as it was matter of law. Strathy v. Crooks, i. U. C. R. U. Case for excessive distress — Decla- ration — Count contrary to 1 Vic. ch. 16, sec. 4".] — 7. Where in an action on the case for an excessive distress a count charges the landlord with sell- ing the goods for extortionate and ille- gal charges, such count being contrary to the provisions of 1 Vic. ch. 16, sec. 4, cannot be sustained. NicJiol v. Mooney ct al., i. U. C. R. 199. Property sold must be removed with- in a reasonable time.'\ — H. The pur- chaser of property sold for rent must remove the same from off the premises within a reasonable time after the sale. If property be sold on the 15th of Februarj', and the purchaser enters to remove it from off the premises on the 26th of March following, he will be liable as a trespasser. Alway v. An- derson,v. U. C. R. 35. DISTRICT (NOW COUNTY) COUNCIL. See Corporation, 7. — Mandamus, 17. Power to sue for dd)ts.'] — 1. A mu- nicipal council can in their corporate name enforce payment of debts due to the district in cases in which neither the magistrates nor their treasurer could have sued formerly, but they cannot vary or abridge the rights of the parties, nor alter any contract, express or implied. T/ie Ottawa District Council V. Jmio et al., Trin. Term, 7 Vic. Description of, under act.} — 2. Where in trespass quare clausum fregit, the defendant justified under a by-law passed by the " Municipal Council of the District of Weihngton," and the plaintiff demurred specially, shewing for cause that there was no such corporate body as that described in the plea — the Court held, that under the Municipal Council Act the corpo- ration was sufficiently described. Fle- wellyn v. Webster, Mich. Term, 7 Vic. Debt against, for cavse of action before district erected.} — 3. An action of debt is maintainable against a mu- nicipal council upon a contract entered into with the building committee for budding the gaol and court house of the district before the district was set apart ; and it is sufficient in the decla- ration to describe the building commit- tee as such, without naming the per- sons of which it was composed. Keat- ing v. The Council of the District of Simcoe, i. U. C. R. 28. Fees of clerk of the peace."] — 4. The payment of certain fees to a clerk of the peace by a district council in accounts rendered for services in for- mer years, will not prevent their after- wards disputing the charges in the ac- counts of subse(|uent years. Askin v. The London District Council, i. U. C. R. 292. Action by clerk for such fees.} — 5. An action will not lie against the dis- trict council for fees charged for servi- ces performed by a clerk of the peace. lb. RigJd to sue upon bond given to the treasurer for the cdlectinn of rates.} — 6. The Municipal Council Act, 4 & 5 Vic. ch. 10, invests in the municipal council of each district the power of suing on a bond given to the treasurer of the district for the due payment over to him of the rates re- ceived by the collector ; and it is suffi- cient to aver in the declaration that the monies collected are due and payable to the treasurer. Eastern District CotincU V. Hutchins, i. U. C. R. 321. iSee O'Connor v. CkmentB et at., infrn, 8.] i r i ■! i 164 DISTRICT COUNCIL. DISTRICT COUNCIL. E»if(nTi)ti: vrrtliil nf jury — Form of (Icrhiratitin ii^(iiiist.\ — 7. Wliero the plaintitr hroiiglit an action of debt on the common count:::, ajininst the Huron District Council for compensa- tion awarded to iiim by a jury for making a road across his premises be- fore the formation of the Huron Dis. trict, and while titc land formed part of the District of London, and the Huron District had, afler its erection, assumed tlic payment of tlic sum awarded — tlie Court held, that the ac- tion would not lie against tiie Huron District Council at all ; but even if the council had been responsible, the dec- laration should have been special, McKecv. The Huron District Coun- cil, i. U. C. R. 3G8. Right to sue tipon Imul to district treasurer for coUcction of rates.] — S. The Municipal Council Act, 4i & 5 Vic. ch. 10, does not vest in the mu- nicipal councils of the several districts the right of suing upon bonds given by collectors of assessments to the treas- urer of the district (/firr that act was j)asse(l,h\xion such bonds the treasurer of a district can sue in his own name. O'Connor v. ClcmcntsctuL, i. U. C. R. 386. Right to sue each other.'] — 9. One district council may sue another dis- trict council for a cause of action con- nected with their public duties, and the balance of district revenue which one district holds from another affords legal ground for such an action. Hu- ron District Council v. London Dis- trict Council, iv. U. C. R. 302. Actions against — Notice — Request , and other necessary averments.'^ — 10. A district council cannot be sued upon the common money count on the account stated, unless at least the subject matter of the account be aver- red, and it is seen to be such as can by law create a debt from the defendants to the plaintitfs to be satis. fied out of the funds of the district. Semble: That it was not necessary before action to give a notice to the treasurer of the London district of the claims of the plaintiiVs against the dis- trict. Sciiililc, a/so : That it was neces- sary, in order to a right ofaction , to aver a recpiest from the plaintillto the de- fendant to pay over the money due. Scinfi/c, also: That ii\ suing for a sit.] — 11. The 4'3rd clause of the District Comicil Act, 4 & 5 Vic. ch. 10, does not subject a district coun- cil to be sued upon an iniji/icd as- su)ii])sit by reason of any transaction that may have occurred between the plaintiffs and the justices in Quarter Sessions, or the treasurer of the dis- trict before the existence of the coun- cil. Low et al. v. Ottawa District Council, W. U. C. R. I!)4.. JVciv treasurer — Mandawusto old treasurer for //ools i^-c. — Vididity of elect ion. '\ — 12. At a session in Octo- ber lS4(i A. was elected by the Dis- trict Council of the Midland district, treasurer of the district. When elect- ed, A. was hiu/self a. district arun- cillin-', B. at the time of A. 'selection was holding the same ollice of treas- urer of the district, having been long previously appointed to that oilice by royal commission. A. upon his elec- tion requested H.to give him the books iVc. of the office ; B. refused, upon the grounds that under the District Council Acts, 4 & 5 Vic. ch. 10, and 9 Vic. ch. 40, A. had been elected treasurer at a time when by law no such election could take place, and that the twoollicesofdislnct councillor and trea- surerwere incompatible, Ui)on B,'s re- fusal, A. applied to theCoiU't for a man- damus to B. to deliver over the hooka P DISTHICT COUNCIL. DISTRICT COUNCIL. 165 &c. //rAZ-lst,that A.had been elected i neccssan- for the exorcise of their cor. at the propiM- time and session ; 2ndly, j porate functions. Ih. that the two oiTices were compatible ; j ws oj district court house in vYy;«//%] — 18. Under the provincial statute 10 & 11 Vic. ch. (), a district council can- not be made liable in damages for an injury, resulting in death, occasioned to an individual in walking up the court house steps, which had been allowed to fall into an unsafe and dangerous situation. The council was charged in this declaration as having the court house under their control, and as bound by law to keep it in repair,, and judg- ment was arresti'd on this averment, as the act 4 & 5 Vic. ch. 10, sec. 46, throws the responsibility of keeping the court house in a proper state of repair on the district surveyor, upon whose report, in the first instance, as to the necessity of the repair and the expense, the council have to pass a by-law. Hawkshmo v. The District 166 DISTRICT COURT. DISTRICT COURT. 1 I Council nf thr. District of Dnlhmiise, does not show that the action could vii. U. C. R. 590. , not have heen hionaht in n district Quivre : Would the council be liable ' «0Hrt. The iiluintili; to entitle himself to an individual for not passini? such a ()int.) Whcc. Icr V. iiimc cl al., iii. U. C. R. 2G5. [Also, see 14, infra.] When rrpfcvin nmitiUtinahh in (liatdct courts.'^ — J<. The Ri>|)levin Act of this province, l Wrn. IV. ch. 7, gives jurisdiction to the district courts only in cases of seizure for tlis- tress. Foster v. Miller, v. U. C. R. 509. [See the new Replevin Act, 14 & 15 Vic. ch.64.] Jurisdiction over rvidnier ixircn in division court.'] — 5. The jury in a district court cannot trj', as an issue of fact, whether the division court gave Judgment, 15, 18. — Sheriff's iJ"4"nt'nt on insullirient evidence, nor Sale, 11, 12. — Writs of Trial- Arrest.'] — 1. Where a judge's order whether the plaintilV abandoned the residue of a large demand, so as to give the court jurisdiction ; where is necessarj' to hold to bail, an arrest i ^''^^''^'ore this has been done, and tlic cannot be made in a district court. Ferris v. Dyer ct al., Hil. Term, 6 Wm. IV., and Smith v. Jurvis, Hil. Term, 3 Vic. 8 Vic. ch. 13, sec. 44.]— 2. The provision in the 8 Vic. ch. 13, sec. 44, allowing executions to issue in a dis- trict other than that in which judg- ment was rendered, is retrospective as well as prospective. Easter ct al. v. iMngdiamp ct al., iii. U. C. R. 475. [It is now no longer necessary to file an exemplification of the judi^ment, as directed by this section, the execution, under 13 & 14 ic. ch. 52, sec. 3, may be issued to any county of Upper Canada, as of course.] judge of a district court, on a motion in term, arrested die judgment, the Court above confirmed his judi;nient. J/i/nes v. Bur roues, v. U. C. R. 253. Jurisdiction in motteis of set-o/f.] — (i. Where there are open running accounts between the plaintilfand the defendant in a district court, made up of divisible items, not exceeding in each 2rtl., the defendant can only re- cover by way of set-ofl" the dillerence between 2.5/. and the amount due to the plaintiff. If the defendant, how- ever, desire to recover more than will balance the plaintiff's demand, he must t ^.. inty of Upper Canada, as of course.] .• ,. , , . «■. .i ^ '^' ■• give notice of, or j)lead a set-ofl to the Replemti— Jurisdiction— Plea of, 2.5/., and claim in hi.s plea or notice to nm tenmt.'l—S. The plea of non j have the amount between the ])lain- tenuit to an action of replevin, does tilf's demand and the 25/. allowed to not necessarily oust the district courts him. (McLean, J., dissentiente, being of their jurisdiction. The mere fact .of opinion, that a defendant upon a of the plaintiff in his declaration in ! set-ofl' might recover a balance to any replevin stating the value of the goods | amount beyond the 2.5/., the jurisdic- distiained at a higher sum than 15/.,jtion of the district courts not being DISTHICT COURT. DISTRICT TREASURER. 167 ! limited to a defenclant'H set-off.) Rus- sell V. Conway, v. U. C. R. 2r)6. [The county court juiisdicfion has, under 12 & 13 Vic. ch. ii'J, sec 1. been extended to 50/. in actions of debt, covenant, or contract.] Bail lumd — When jjlaintiffin o i- fiinal action slioii/d s//p.] — 7. In r action upon !i bail l)ond i:iven in a dis- trict court, the plaiiiliir, if the plaintiffj in the ori, have no jurisdiction in an action on the case for a false return to a writ of fi. fa. Bell V. Jar lis, vi. U. C. R. 423. Jurisdiction, if the title to land he brought in question.] — 13. Where in matters of tort relating 'to personal chattels the question of the title ol the land shall be brought in question, though incidentally, the judge of the county court has no jurisdiction under 8 Vic. ch. 13, sec. 5, Trainor v. Holcortibe, vii. U. C. R. 54.8. Jurisdiction in replevin.] — 14. To an action against a sherilF for taking an insuflicient replevin bond, he pleaded that the goods replevied were worth no more than \bl., and that so, the writ of replevin being sued out of the county court was void : Held, plea bad. Kirkenilall v. Thomas, vii. U. C. R. 30. Recovery itnthin district court ju- risdiction — Judgment.] — 1 b. Where a plaintiff has special counts in his declaration, but abandons them, and recovers upon counts within the com- petence of a district court — the Court of Queen's Bencii will order judgment to be entered on tliose counts only. Wenttcorth v. Hughes, Tay. U. C. R. 232. DISTRICT (NOW COUNTY) COURT JUDGE. See Attachment, 1. 2. DISTRICT (NOW COUNTY) TREASURER. See District Council, 8, 11. — Di- vision Court, 4. '''M 1 i 1. '': • ■ B m. : -' 168 DIVISION COURT. DONATIO MORTIS CAUSA. DISTRICT mow COUNTY) WARDEN. Src DisTKicT Council, 1(j. DISTRINGAS. Src Jury, 3. This writ is not tiif proper ])rocoss with vvhicii a siiitajrainst a corporation should be coiniiu'iicod. C/xi/irr v. The Caiituhi Ci>inpniiif, Dra. Rep. 198. DIVISION COURT. See DisTRicTC()ijKT,r).— Judgment, 18. — NoTic K OF Action, 1. School >i.s^cxsni-nt.'\ — 1. A town- ship coiloctor may sue for the amount of an as«>ssnient for common schools, under -l iV; 5 Vic. ch. 4S, sec 10, in r. division court. McG'iCL'or v. White, i. U. C. R. l.i. Notice of ad /o//. — IVd/it of notice mvst b". ji/ivi/ciL] — 2. Tin- want of notice of action in a suit against a baililFof a division court, actin:^ in the oflice under t iV f) Vic. di. '.i, musi he pleaded, and cannot he uiven in evi- dence under tlio general issue. Hut where under thai act a haihll", seizing and selling goods under an execution, is entitled to notice, the plaintilfin the execution is not, as he is not witliin the protection of the (Uh clau>:e, as a "person acting in the execution ; ftlie act." Tiimn v. Sttz/ihs ct nL, i. U. C.R. 3 7. Liiihi/itijofbaUij]'.'] — 3. lldd, that the bailiff, who made a soi/ure under an execution issued on a jutlgiiient by the judge of a district court under the Division Court Act, was not liable, though it was riecessary that his de- fence should be j>IeaiK'd specially, as there was no privileL'c of giving the special matter in evidence under the general issue, under that ai't or the 1 Vic. ch. IG ; but (jiucre, wiiether ho does not come within the provisions of the English statute 21 Jac. I. ch. 12? Ddvis V. Moore et al., ii. U. C. R. 180. Action hy treasurer of district a- saifist clerk of — Declaration.'] — 4. In an action by a treasurer of a district, under the Division Court Act, against the clerk of a division court for not paying over monies received by him, it is sullicient to declare in the treasurer's own name for money had and received by the defendant to the use of the plaintiff for the purposes of the act. Hmvard v. Walton, ii. U. C. R. 266. Li cd)i lilies of clerk'' s sureties for monies not ^w»V/ over.'] — 5. The sure- ties of the clerk of a division court, having entered into the bonds autho- rized by the statutes t & 5 Vic. ch. 3, and 8 Vic. ch. 37, are liable upon such i?;/nd to the Crown for monies collected bj the clerk for suitors in the court and not paid over. Jlcsinii v. Pat- to?/,, Rcisina v. McCidloinJi, and Rc'^ina v. Mora//, vii. U. C. R. 83. What d'/.maues Croir//e//fitledfo.\ — G. Scmlilc: 'i'liat on trial of any such action, the Crown would be en- titled to a verdict for the penalty of the bond, and not merely lor the sum re- ctMved for the suitor and not paid over. Pj. DOCUMENTS. I. Production of, on Trial. See HoND, II. 10. II. Proof OF, GioNERALLV. See Evidence, II.; IV. 2, l. DOGS. See Toronto (City of), 2. — * — DONATIO MORTIS CAUSA. Sec TuovEU, 1. 8. P DOWKK. DOWER. 169 DOWER. See Covenant, I. 1, 2, 3. I. Sight, and how barred. H. Proceedings. III. Damages. I. Right, and how barred. See Estate, 11. — Infant, 3. Conveyance by nominee of the CrowHy being unnubrricd — Second deed after patent, being married.^ — 1. Where a noiniiiee of lands of the Crown, l)efore letters patent Issued for the lands, sold and conveyed them away, being at that time unmarried, and afterwards, having obtained the letters patent, made a new convey- ance to the same party, being then married: Held, thail aticr his death, hia wife could not claim dower in the land, aa she vvn-- estopped by the deed made before t letters patent issued. McLean v. Laidlaw, ii. U. C. R. 222. Wife''s rigid in land exclinngcd.'] —2. A wife cannot be endowed of land given in exchange, and also of land taken in exchange, but she b "-. her election to take one or the ot!.- -> McClellan ct Ux. v. Meggutt ct at,., vii. U. C. R. 55*. Not barred by slteri//"'s side.'] — 3. The dower of a wife is not barred by the sale in ex«!cution of her husband's estate. Walker v. Powers, Mich. Term, 4 Vic. II. Proceedings. See Arrest of Judgment, 9. 1. Proceedings in dower cannot be taken in an outer district. Amiot ct Ux. V. Woodcock, ii. U. C. R. US). Action against mwtgagrc in pos- session.'] — 2. An action for dower may be maintained against a mortgn. gee in fee in possession. Walker v. Boulton, Mich. Term, 7 Vic. Style of parties in t.dt.'] — 3. It is irregular in an action of dower to style the parties in the cause demandant V and respondent, and affidavits so inti- tuled cannot be read. Ferguson v. Malone, i. U. C. R. 519. Action limited in point of time."] — 4. Our statute 4 Wm. IV. ch. 1, makes the remedy for dower subject to limitation in point of time. — The right of dower commences with the death of the husband, and the action must be brought within twenty years from that time. German v. Cfrooms, vi. U. C. R. 414. Statute of Limitations — When it cotnmences.] — 5. The right of dower being only an inchoate right during the lifetime of the husband, the Statute of Limitiitions does not begin to run till the husband's death. McClellan et Ux. V. Mcggatt ct id., vii. U.C.R. 31. Evidence to support actio?i.'\ — 6. On the plea of ne unques accouple, evidence of cohabitation and reputa- tion of marriag'3 will be sufficient in dower ; it is not necessary to prove the marriage by persons who were ])resent at the ceremony. Stoner v. W(rltoH. Mich, Term, 5 Vic. [Upheld in Phiup» v. Moore, v. U. C. R. 16.1 Plea Of' ne unques seizie — Evi- dence.] — 7. Under the plea of ne unques seizie, possession by the hus- band is prima facie evidenre of a seizin in fee. Lockman v. Nesse, Easter Term, 7 Wm. IV. [See also case 16, infra.] Plea of alien nc — Replication.] — 8. In dower, the plea of alien ne may 1)0 pleaded in bar; and a replication thereto need not state a venue to the placo of birth within the allegiance, nor slate of what parent, nor when the demandant was born. Robinet v. Lcieis, Dra. Rep. 4fi. Origintd ^>/ocy'ss.] — 9. A writ of capias ad respondendum is not the first or original process in dower. Phclan V. Phelan, Dra. Rep. 398. [Sec note (a), infra.] Plea of mm tenure — Devise of lands in lieu of dower, fiow pleaded.] — 10. ^^i 170 DOWEK. DOWER. H^ III dower, a pli'u of no tenure is not necessarily a plea in abatement, and it may lie pieadeil either to part or tliL- whole of the lands demanded ; and where a pi L-a states that the husband devised certain lands to the deman- dant in bar and satisliiction of dower, and that she agreed to the devise, it is sutlicient without setting out the words of the devise ; a/ iter, vvIumv the devise is not in eNj)ressternis ill barofilower. Braikcniiduc v. Khig, iv. 0. S. 180. Servicf of gr — Dinninjrs not behicLnian v. Nesse, Easter Term. 7 Wm. IV.; Dayton v. Anldjo, Hast(>rTerm, 1 Vic; Wtdkcrx, Boul- ton, Mich. Term, 4 Vic. Costs ] — 3. Nor are costs recover- able unless the husband died seized. Dnijton V. Aiddjo, Easter Term, 7 Vic. [See note (/i), iiilia.] Sim'jcslion ff seizin, aflir final jinhntent — J)amages ]--4. In dow- er, a suiri;esti()ii may be entered al\er fiiKil judument that ihe husband died seized of lands, and iiuiuiry shall go eoncerninsi the damages since the death, altliouiih the tenant be the alienee of the heir. llMuct v. ItCuris, Dia. Rep. 'IW.K Moile rfestimatina damapes."] — 5. After ju(lu:inent of seizin in dower on a writ of iiuiniry, the mesne value of the jiremises, between the death of the husband and the obtaining judg- ment, should be assessed. Deman- DURESS. dant may also assess, as damages, her taxable costs in obtaining ju(l^ rcserved.'j^ — 7. The Court rei'uscd to entertain a motion to increase damaj^es in dower, where no point had been reserved, and where the motion was not made until the second term afier the assizes at which the cause was tried. Wajt,son v. Tcwi/legcr, i. U. C. R. 21. fn & 14 Vic. ch. 58, sec. 2, allows costs in all cases, whetlier ilanKt;;es be recovenibic or not, if certain stipulations ill tnat section be observed.] EASEMENT. 171 against the justice of fhe case, — the Court granted a new trial. Stewart V. Byrne, Easter Term, 4* V'ic. DUPLICATE FIERI FACIAS. Sec FiEin Facias, 10. DUPLICITY IN PLEADING. iSce Pleading, VI. DURRSS. Trover fur iinoils fiircn Jiff pluintil]' ^ to defendant ivhi/s! innlrr (/lorss — ' Verdict for drfrndiu/t — Nnr Irinl granted i\ — Where in an action of tro- ver, it was apparent that the goods for which the action was lirou'jlit wrn* translerred by the plaintill' to the de- fendant when u!ider duress, and •':r' jury found a verdict for the dul'enduiitj EASEMENT. ,SVc WAV. Prescription — Time.'] — 1. A pri- vate right of way cannot bo claimed by proscription in a less period than twenty years. Sinithv. Sntith, iii. 0. S.'21o. Ca/t only hr ixranled hy derd.'\ — 2. An easement can only Ije granted l)y deed, and if given by parol, may be revoked at any time. Cryslcr v. Crri<:htnn, Easter Term, 2 Vic. [Kven Qlthouj;h money be pnid for it and not returned. Wood v. ijeiulbitter, xiii. M. & W. 838.J Mill dam — Waste prater — Ahm- Inte and ijiKdiJirdctiscnients.l^ — 3. A. at a time when no one else had a mill lower down the stream, made a dam across the river where it issued from a pond or lake, and kept back the water for the purposes of a mill which he had erected below the dam. After A.'s dam and mill had been thus erected, R. bu'.it a mill lower down tlie stream, which for twenty years or more had been at'ecpiately supplied with water by tliL escape of water from A.'s dam. As A. had in addition to his mill below his dam, a saw lill be- low B 's ir.ill, R, had rarely to com- plain of the water beini,' injuriously retained by \.'s dam, ;,nd mad' there- fore no ol.jerlion to A.'s obstrui tion of the water by bis dam for twenty years. After forty yearsaiid iiK.re had elapsed, A.'s saw-mill passed into other hands, and A.'s mill iVoni decay stopped working. A. therefore having no ob- ject of bis own ill allowing the water to escape Irom bis dam. kept it penned bark and llwis prevented H. from work- iiiL' his mill bi'ldw. l'poi\ litis, B. nt (Mice biiMigbt .'"I action on lite case against A. for obstructing thi^ flow of water to his mill by the erection of his ■11 m 1 173 EASEMENT. EJECTMENT. m\ dam. A. pleaded an casement, and contended that as he liad liad the un- restricted control of the dam for twenty years, he might exorcise the right whenever he pleased of preventing any water e6ca))ing to B.'s null : but held, that the only easement accjuired by A. under these facts, was the f^ini/i- fied one of penning back the water for the purpose of his own mill, so as not to interfere with H.'s use ol tlie waste water, as lie liad been enjoying it for the work of his (B.'s) mill during the twenty years the dam had been ereeted by A. and acqiiie>ce(l in by K. In other words, that A. could not set up a more extended right than he had actually been enjoying with B.'s con- sent for twenty years, llc/d aho, that the fact of B. having paid A. a sum of money for one year or more to be allowed to enter upon A.'s land and let down the Avater to his, (B.'s) mill, was no concession by B. of any ex- elusive right on the part of A. to ]>en back the water at his dam as he pleas- ed. Buell V. Read, v. U. C . R. 54.(). [The enjoyment of an easement iliirinif twenty years must also be ron/iHi/ou» and un- interrupted. Onley v. Oardincr, iv. M. & W. 496; Bright v. W. A. a riparian proprietor below the stream pens the water back upon a proprietor B. above, so as to over- flow at certain seasons B.'s land, upon which B. sues A. and recovers dama- ges ; B. then digs sluices close to the side of the stream, which have the etloct of diverting the water in large (|iiantities (much greater than that penned back by A.'s dam,) from the natural bed of the stream and past A.'s mill. — A. sues B. — B. justitics the diversion of the water, contending that his sluices became necessary to re- move the injury caused by A.'s dam and his raising the water thereby. Held jier Cur., such justification no ilefence under any state of pleading — certainly not under the general issue, which was the only plea in this case. Macaulay, J. dissentiente, who was of opinion that a new trial should be iiranted for misdirection, on the ground that the diversion of the water having been occasioned by tlie combined act of both the plaintiff and the defendant- viz: by the dam of the plaintiff and by the sluices of the defendant — not being merely a question of damages but a good defence to the action and ad- missible under the general issue, should have been let't at tlie trial as a question of fact for the jury, Adamson v. Mc]S'ab,\\.V.C.Vi. 113. EJECTMENT. I. Demand of Possession, and Notice to Qiit. II. Declaration, Notice to Ap- PEAH,AND Rule for Judgment III. Service. EJECTMENT. EJECTMENT. 17S IV. Consent Rule. (1), Consent rule s^eneralhj. (2), Attachment for non-2)(uj- vient of costs. V. Setting aside Proceedings. VI. Staying Puoceedings tu.\ Costs of foumer Ejectment PAID. VII. Judgment. VIII. Other Matters. I. Demand of Possf.ssion, and No- tice to Quit. Sec Landlord and Tenant, 1.2; II. 1. — Lease, I. +. — Mortgage, 9 knowledge, but without his expresa consent : Held, that he could not be treated as a trespasser and ejected without a demand of possession. Doe dcvi, Mann v. Keith, iv. 0. S. 86. Arlion hi) heir t/oainst assignee of ':necstor\i (Jili;" ^, „ . . . ' , , , ■{• • „ 4 ^1 „„.;. ..„, Irom tie Crown, is entitled to a de- demand of possession to observe par- , ^ ■ i ,• • . ticularitv in pointing the defoiulailt to "land of possession before ejectment the preci.se parcel of land the plaintiff )'o^xg\^yhy a grantei is seeking to recover. See D,.- dem. t"": f "' ''^t* ^' Jeffrey v. Williavis, vi. U. C. R. 160 " Disclaimer by tenant.']— 'i,. Where' Demand of jmsession hy a party the defendant, who went into ^x^^^c^. n-hosuhseqvent/y sells— Suchdc7nand Bion under the lessor of the plaintiff, "ot available to his vendee.]—!. A afterwards refused to acknowledge his demand of possession made by a per- title : Held, that he was neither enti- ' son who aflerwards assigned his inter- tlcd to a notice to quit nor a demand est to the lessor of the plaintiff, cannot of possession. Doc dem. Boutcr v. i l^e available by the lessor so as to make Fraser ct. al., iv. 0. S. 80. I the tenant's holding tortious as to him. Mort.,xanor\ lessee.— Ejectment by \ ^" ^^ster Term, 2 Vic. fHort!ra'rce.]—3. Where in ejectment! Evnlence of disclaimer to obviate by a mortgagee the tenant claimed ! necessity for notice.]— 8. The asser- possession under a lease from the mort. 1 1'"" of title by a tenant before, coupled gagor, and refused to attorn to the , "'t'' « refusal to pay rent aller action mortgagee (who demanded possession,) j brought, is sufficient evidence of a dis- and shewed no lease, nor any certain I claimer to obviate the necessity of holding: J/r/r/, that he was not enti- ' proof of a notice to quit, especially tied to a notice to (juit. Dix' dem. Sam- ; where the tenant attempts to rely on .lOH v. Piukcr, iv. O. S. 36. I «"<■•» title at the trial. Doe dan. Ciitlv- Aetion by lessee a ixainst party in ''''''''>"■'■'• Sager ct al., Easter Term, pa. Where a person en- ters into the possession of land under an agreement to purchase it, he is a tenant at will to the seller, und at the EJECTMENT. EJECTMENT. 176 seller's death his heir-at-law can main- tain ojectiiient ai;ainst him, without any notice to quit or lii'inand of possession. Doe dvm. lump v. Garner, 1. U. C R. 39. [See case 22. infra.] DcfciiiUuit sett i/i^vp two indeprn- dent drfriia-s.'] — 20. Where at tlie trial a ilcrondant in ejectment endea- vors to make title in himself as the owner of the fee and fails, he is pre- cluded iVom defending him-^jlf upon the ground of want of notice to (juit or demand of possession. Due dcm. King's College v. Grahatn, i. U. C. R. 158. 21. A defendant in ejectment can- not first put the plaintiff to proof ol his title, and then, failing in his do- fence, secondly, claim a right to notice or a demand, as if he were in posses- sion under him. He mu.-^t decide whether he will claim adversely to, or in privity with the title — he cannot do both. Doc dem. Mnitland v. Dilla- boiigh, V. U. C. R. 214.. [See div. VIIl. 8, infra.] Agreement to piirehcusc — Tenancy at will. '\ — 22. Where a defendant was in possession of land umler an agree- ment to purchase, the purchase money being payable by instalments, and after the payment of the first instalment, failed in the payment of any of thp others, but remained in possession for many years, until the lessor of the plain- tiff olfered to . A. contracts to sell to B. cer- tain land for a sum of money, to be paid by annual instalments, and the defen- dant went into possession under B., upon some understanding or condition, not explained at the trial — default was made in the payments to A. : Held, that A. could bring ejectment against the defendant without notice or de- mand of possession. Doc dem. Phiii- potls et al. V. Crouch ct al., v. U. C. R. 4.53. Hvh-lcasc hy govcinment lessee — Action l/y sitehlessee after grant to him in fee."] — 2G. A. had a lease I'rom the government of a clergy reserve for twenty-one years, ending in 1S37. — A. sub-let to B.— In 1843, after the term had expired, A. obtained a patent in fee from the Crown and finding B. still in possession, he brought an action of ejectment against him : Held, that under these facts, A. was not entitled to notice to quit, or demand of posses- sion. Doe dem. Wismcr v. Hcarnes, vi. U.C.R. 193. Disclaimer Iry tenant — Efect mi his tc?m7iey.]—21. The elfect of a ilisclaimer by a tenant of hi« landlord's title, is at once to put an end to an ex- istmg tenancy, and ejectment may be 176 EJECTMENT. EJECTMENT. maintained without a notice to quit, and without waiting until the period when the tenancy will expire. Doe dem. Glaus v. Stewart, i. U. C. R. 512. II. Declaration, Notice to Ap- pear, AND Rule for Judgment. See Amendment, II. 3,8, 17, 18, 19, 20.-Presbyterian Church,Galt. Religious Societies, 3. Tenants in common — Joint de- mise.'] — 1. A joint demise by tenants in common in a declaration in eject- ment, cannot be supported. Docdcm. McNab ct al. v. Seihr, Mich. Term, 7 Wm. IV. ; Doc dem. Sh titer ct al. V. Carter, Hil. Term, 2 Vic. [See further, Amendment, II. 17, 18.] Joint tenants may sever. "] — 2. Joint tenants in bringing ejectment may sever in their demise. Doe dem. Danvick et al, V. Clement, vii. U. C. R. 54'9. Rule for Judgment.'] — 3. Where the rule for judgment against the casual ejector, was moved in the second term afler service of the declaration, a rule nisi returnable eight days after the service of the rule on the tenant, was granted for the tenant to appear, or otherwise judgment. Goudtitlc dem. Garten v. Roc, Micl.. Term, 1 Vic, and Doc dem. Bond v. Roc, Hil. Term, i Vic. [Where the declaration wa-s intituled in the Common Pleas, but the notice in the Queen's Bench, the Court, on objection beina; taiien, refused to make absohite a rule for judgment, and ordered the defendant to enter an appear- ance. Doe dem. Knowks v. Roe, xii. M. & W. 569.] Several demises — Ridc.l — 4. Where there are several demises laid in the declaration, the rule for judgment against the casual ejector should be intituled " Doe, on the several demises of, 8tc." But it is not necessarj' to mention all the demises ; it is sutlicient to state " on the several demises of A. B. and others." Doe don. McDon- ald et al. V. Roe, Hil. Term, 2 Vic, et al. V. R'nf, and Doc dem. Sheet Mich. Term, 2 Vic. Grnernl description in declarati )n.] — 5. Where the ])laintii1' declared ;;en- erally, stating neither the concession nor lot, and the defendant defended for lot 23, and at the trial the pl.tintifl' proved title to lot 22, which in the description appeared to include lot 23 : Hcfd, that the plaintiff was entitled to a general judgment, and that he must take possession of the right land at his peril. Doe dem. Owen v. Curtis, Mich. Term, 4 Vic. riaiiitill"'sriiiht to damages, tchen term laid in dcclamtiun expired.] — 6. When the term in a declaration in ejectment has expired, the plaintilT is entitled to recover nominal damages and his costs, although he cannot re- cover possession. Doc dem. Lick v. Ausman, Hil. Term, 6 Vic. Notice to appear — Amendment."] — 7. Where in a country cause the ten- ant was called upon in the notice from the casual ejector to appear within the first four days of term, and he obtain- ed a rule nisi to set aside service of the declaration for irregularity on that ground the lessor of the plaintifi* had leave to amend the notice by mak- ing it to appear of term generally, or within four tlay ■• thereafter, on payment of costs. Doc di'tn. Kemp v. Roe, Mich. Term, 6 Vic, P. C. Jones, J. Misiifnncr Amendment.] 8. Where the notice to appear in a de- claration in ejectment was addressed to the tenant by the christian name of James instead of William, an amend- ment in the notice was allowed. Doe dem. Crumback v. Roe, i. U. C. R. 518. [See div. III. 10 infra.] Demise bij guardian.] — 9. A guar- dian appointed by the Vice Chancellor ui)on the petition of an infant, cannot make a demise for the purpose of try- ing the title to the infant's land in eject- ment. The demise should be b} the f EJECTMENT. EJECTMENT. 177 3 of that aintiflf mak- er ^ment Roc, ,J. -8. de. essed me of end- Doe C. R. guar, icellor II w infant. Doe dent. Marianne v. Alex- ander, i. U. C. R. 120. Declaration — Certainty of dncrip- tion of land."] — 10. Where the de- claration in an action of ejectment de* aignates the property sought to be recovered by the lot and concession of a township, witiiout mentioning the quality or description of land, the de- claration is surticientlv certain X>ocJfw. O'Reilly v. Picklc,i. U. C. R. 282. [See Amendment, IT. 3.] Fee in icifc — Huxba)id''s demise.'] 11. Though the wife own the fee, the husband may sustain ejectment on his own demise alone ; but on such a de- mise, the lessor of the plaintiff must prove his marriage. Doe dem. Peter- son v. Cronk, v. U. C. R. 136. [See Husband and Wife, 6.] III. Service. See Attorney, 11(1), 6. — Eject- ment, VIII, o. By tvlunntobc nuidc."] — 1. A do. claration in ejectment cannot be served by the lessor of the plainlilV. Doc dem. Armstrong v. Rjoe, Trin. Term, 5 & G Wm. IV. On person living in tenanfs house. ] — 2. Service of a declaration in ojcct- menton a person living in the tenant's house, is not sufficient, without shewing that it came to the tenant's knowledge. Doe dem. Smith v. Roe, Trin. Term, 6&7Wm. IV. On any other person other tJuin tcn- ant or wife] — li. Service of a decla- ration in ejectment upon any person but the tenant or his wife is insuffi- cient, unless it can be shewn that the declaration came to the tenant's know- ledge befoid the first day of the term. Doe dem. Gray v. Roe, Hil. Term, 7 Wm. IV. [See a further case, 11 infra. Also, Doc dtm. Lard, Dtmrben v. /iix), ii. M. & W. 374, and Doc dem. Read v. Roci i. M. & W. 633.] Affidavit.] — 4^. The usual rule for judgment against the casual ejector was granted on an affidavit stating that the dejwnent, who served the declara- tion, read part of the notice to the ten> ant and explained the meaning of it, and that the tenant seemed to under- stand it. Doe dem. McFarlane v. Roe, Hil. Term, 7 Wm. IV. On one of several tenants in com- tno/i.] — 5. Service upon one of seve- ral tenants in common in possession of the same parcel of land, is sufficient. Doe dem. Davison v. Roe, Tay. U. C. R. 676. [See div. VIII. 5 infra.] Afidnvit.] — 6. Where the affidavit of service of the declaration stated a service on the tenant in possession of part of the premises, a rule for judg- ment against the casual ejector was granted as to such part. Doe dem. Davidson v. Roe, Mich. Term, 1 Vic. Affidavit.] — 7. Service of the de- claration in ejectment on a person who is stated in the affidavit to have admit- ted himself to be tenant m possession, is not sufficient ; he must be sworn to be tenant in possession. Doe dem. Dunn v. Roe, Easter Term, 2 Vic. Affidavit.] — 8. An affidavit of the service of a declaration in ejectment on a ])erson who represented herself to be tlie wife of the tenant is insuffi. cient, unless it state the deponent's belief that she is so. Doe dcni. San- dersonv. Roe, 'Vr'in. Term, 2 & 3 Vic. Affi^lavit-Bcforc tvhom to be sivorn.] — 9. An affidavit of the service of a declaration in ejectment, cannot be sworn before the Jittorney in the cause. Doc dem. Walker v. Rjoc, Trin. Term, 2 & 3 Vic. Alteration made in dcclarat'^?'^ with lcnant''s kiiDivIcdge.] — 10. Where the notice to appear was for a wrong term, and it was struck out and the ri^htterm inserted in pencil, and the alteration pointed out to the tenant at the time of service — the Court refused to set aside i\w service for irregularity. Doc dem. Mills v Roc, Hil. Term, 4 Vic, P. C. Jones, J. .^11 \:;M\ m. ^ 178 EJECTMENT. ■JECTMElfT. On son of tenant."] — 11. The ser- vice of a declaration in ejectment on the sun of the tenant upon the premises will not be allowed, unless it can be shewn by aflidavit that before the first day of the term the tenant had know- ledf^e of such service. Doe dcm. Hun- ter et al. V. Roc, iii. U. C. R. 127. Affidavit.']— \2. The aflidavit of service of a declaration in ejectment, and notice upon the tenant must shew the time when the declaration Sec. was served. Doc dem. Sherwood v. Roe, V. U. C. R. 319. Contradictory affidavits.] 13. Where it was sworn that the declara- tion in ejectment was served upon the tenant in possession — the Court re- fused to set it aside upon an ailidavit stating It to have been served upon a stranger or servant upon the jtremises. Doe dem. Dunlop v. Roe, Tay. U. C. R. 480. IV. Consent Rulk. (1), Consent rule generally. See divs. V. 2 ; VI. 6. Declaration specifying lot — Con- sent rule general.] — 1. The plain- tiff set forth the particular lot he went for in his dcclaraticm, and the defen- dants entered into a general consent rule, not specifying the premises par- ticularly ; the plaintifl", after passing the record on this rule, entered judgment by default, treating the consent rule as a nullity, and the Court set the judg- ment aside as irregular, and held the defenilants' affidavit intituled as under the consent rule correct. Doe dem. Tlu)mpsoti V. Futfmm et al., iii. O. S. 312. Confessing possessimi of premises.] — 2. Where the lessor of the plaintill" claimed the land in question as part of one lot, and the tenant claimed it as part of another lot, the tenant was all )wed to enter into the consent rule, without confessing possession of the premises in the declaration. Doe dem. Canada Company v. Roe^ ii. O. S. 209. 3. Where the lessor of the plaintiff and the tenant each claimed the land in dispute as part of a different lot — the Court refused to allow the defen- dant to enter into the consent rule without confessing possession, but di. rected him to defend, setting out the premises in the consent rule according to his description, and stating them to he the same premises which were claimed by the plaintilT in the declara- tion. Doe dcm. Ross v. Roe, Mich. Term, 1 Vic. [See case 5, infra ] Intituling of proceedings prior to.] — 4. In ejectment, all the proceedings prior to entering into the consent rule must be intituled in the same cause against the casual ejector. Doe dcm. Sutton v. Ball, i. U. C. R. 279. Description ofjrremises.]-^. Where the plaintifl* in ejectment declared for lot 1 1 in the 4th concession of Sydney, and the defendant defended for lot 12 in the same concession, stating it in his consent rule to be the same jtremises mentioned in the Ueclaration, and the plnintitf, treating it as a nullity, signed judgment against the casual ejector — the Court held the consent rule good, and set aside the judgment for irregu- larity. Doe dcni,. Gilkison v. Slurreyf i. U. C. R. 341. Amendment at Nisi Prius.] — 6. A judge at Nisi Prius has no power to amend a consent rule in ejectment. Doe dem. McQueen v. Voo^rgh, i. U. C. R. 349. Amendment by defendant after verdict against him.] — 7. Where it turns out that the defendant, frum inad- vertence, has admitted himself in the consent rule to be in possession of some of the land to which the lessor of the plaintiff is clearly entitled, and so has had a verdict pass against him, the Court will grant a new trial on payment of costs, with leave to amend ■JBCTMKNT. SJECTMENT. 179 I. the consent rule. Doe dent. Sheldon V. Ramsay et al, vii. U. C. R. 446. (2), Attachment for iwn-paym£tit of costs. See div. VI. 2. Execution against nominal plain- tiff not necessary before (Utachmrnt against lessor. 1 — 1. It is not necessary that a fieri facias or capias ad satisfa- ciendum should issue against the nomi- nal plaintiff in ejeclment on a judg- ment for the defendant, before an at- tachment against the lessor of the plaintilT for non-payment of costs under the consent rule. Doe dem. Impey V. Gray, Hil. Term, 4 Vic, P. C. Jones, J. Attachment, altlimtgh imprison- ment for debt abolished.'\ — 2. Not- withstanding the act abolishing impris- onment for debt, an attachment may still issue for non-payment of costs in ejectment under the consent rule. Doe dem. Dunmcr v. Benton, i. U. C. R. 157. Granted against one of several lessors.^ — 3. An attachment for non. payment of costs under the consent rule in ejectment on the demise of several lessors, was granted against one of them, without any proof of demand or service upon the others. Doe Cu- hitt et al. v. McLfod, i. U. C. R. 394. Attachment not an execution under 5 Wm.l'V.ch.3.'] — 4. An attachment for non-payment of costs pursuant to the consent rule in ejectment is not a writ of execution, and a party taken under it is not entitled to be discharged from custody as having been illegally arrested under .*> Wm. IV. ch. 3, sec. 2, which abolishes writs of execution issued on a judgment entered for costs only. Regina v. Kelly, Trin. Term, 4 & 5 Vic, P. C. Macaulay, J. 5. A defendant in custody on an attachment for non-payment of costs IB not entitled to his discharge under 5 Wm. IV. ch. 3, sec. 12, in the same manner as if he were in custody in execution for costs. Wilson v. Dil- lingham, Easter Term, 7 Vic. Ejectment hj/ parties as a corpora- tion tehcn not one — Nonsuit — Costs.'] — 6, Where the lessors brought eject- ment in a corporate name, to which they were not entitled, and so entered into the consent rule and were non- suited at the trial : He/d, that an at- tachment could not issue against them for non-payment of costs demanded of them individually. Doe dem. Metho- dic Trustees v. Carwin, Easter Term, 3 Vic V. Setting aside Proceedings. See Judge (in Chambers), 1. — New Trial, X. 13. Second ejectment — Disol)edience to order for stay of proceedings till costs of first paid — Setting aside jwoceed- ings — Ajjidavit.'] — 1. In a second ejectment for the same premises, be- tween the same parties, proceedings were stayed for non-payment of the costs of the first. The plaintiff pro. ceeded, notwithstanding, and was non- suited for the not confessing lease, entry and ouster. The affidavit on which the defendant moved to set aside the proceedings was so worded as to be evidently made in the first cause, but the Court overruled this exception and set aside the proceedings. Doe dem. Lake v. Davis, i\i. O. S. 311. Nonsuit set aside, consent rule be- ing irregular.] — 2. A nonsuit for not confessing lease, entry and ouster, and judgment and execution thereon, was set aside on paymen "osts, on affi- davits shewing that a ..nnon consent rule had inadvertently been entered into by the defendant when the cir- cumstances of the case required a special one, and the defendant could not have made his defence on the con. sent rule filed. Doe dem. Laslier v. Edgar, Mich. Term, 6 Wm. IV. Vacant possession — Judgment set aside on affidavits of premises not M M ^ 'W\ o ^ ■*.'^.^. IMAGE EVALUATION TEST TARGET (MT-3) A^>^- 1.0 iL 1.25 12.8 ■ 2.2 tti 136 Mil Ul lU lii u i ii 2.0 U |L6 6" /. 7 Photographic Sciences Corporalion 23 WIST MAIN STUIT WIBSTU.N.Y. 14SM (7l6)t73-4S03 ^^^V^^ ^v^ ^ ^4> <" I" ISO EJECTMENT. EJECTMENT. being vacant.'] — 3. In ejectment on a vacant possession after the usual rule had been obtained by the plaintiff, the Court set the proceedings aside on affi- davits stating that there was a house on the premises with several articles of furniture in it, and that the tenant hved near, on coiidition that the appli- cant who clair •;: .ne titio as!andi<»rd, should appear ; .a .icbnu. Pnpplcvdl dem. Cwprcol v. ^ic 7, Hil. Term, 6 Wm. IV. Several O.emhr-' -Aff.daxit to set aside proc'xdi/is:!: ] — i. In an eject- ment oi' the se\erai demises of the lessor in t'lfTerent repicsentative char- acters, and also in his individual right, an affidavit to set aside proceedings intituled in the demises of his repre- eentative character alone, was held insufficieni. Doe dcm. Street ct al.v. Roy, Easter Term, 3 Vic. , Judginent against casual ejector — iapse of time.'] — 5. Where a tenant moved to set aside a judgment against the casual ejector on the ground of collusion between the lessor of the plaintiff and the tenant's wife, in the accepting service of the declaration — the Court refused to interfere, more than a year having elapsed since the execution of the writ of possession. Doe dem. Gray v. Roc, Hil. Term, 4 Vic, P. C. Jones, J. [See case 10 infra, also Judge (in Cham- OEns), 1.] Possession contested on affidavits.'] -—6. The fact of the tenancy in an action of ejectment cannot be contest- ed by affidavits, on a motion to set aside the service of the declaration and no- tice. Semble : Tiiat all the tenant can do is to ask the Court to excuse him from confessing possession, and to re- quire the plaintiff to prove it. Doe dem. 'Vancott ct al. v. Hoc, v. U. C. R. 272. Nonsuit Jor not confessing lease, entry, and ouster — Refusal tosct aside, on the merits, J^.] — 7. Where a de- fendant in ejectment, relying upon some supposed irregularity, did not ap- pear at the trial, and the plaintiff was nonsuited for want of confession of lease, entry, and ouster by the defen- dant, and the point of allegea irregu- larity was afterwards decided against the defendant, — the Court refused to set aside the nonsuit, and let him in to a tritd on payment of costs, although he swore to the merits. Doc dem. Leonard v. Myers, i. (J. C. R. 299. Nonsuit — Setting aside for non- co}nj)liance with judge^s order.] — 8. Where in ejectment by a mortgagee against the mortgagor, a judge's or- der was obtained in vacation, staying proceedings in the cause until the first day of the following term, and the at- torney of the lessor of the plaintiff proceeded to the trial of the cause notwithstanding the order, conceiving the judge had no power to make it, and the plaintiff was nonsuited at the trial because the defendant refused to confess lease, entry, and ouster, — the Court set aside the nonsuit for irregu- larity, with costs. Doe dcm. Ferguson v. McCarthy, ii. U. C. R. HI. Judgment against casual ejector set aside for Collusion.] — 9. Where judgment is obtained against the cqsual ejector in consequence of the tenant ill possession having neglected to give notice to his landlord — the Court will set the judgment and writ of posses- sion aside, and compel the tenant to pay costs. Doe dcm. Robertson v. Metcalf, Tay. U. C. R. 518. [See case 1 1 , infra.] 10. Where the tenant in possession is shewn to have been acting in collusion with the lessor of the plaintiff in an action of ejectment, the Court will set aside the judgment against the casual ejector. Doc don, Henderson v.Roe, iv. U. C.R. 366. Costs on setting aside.] — 11. The Court, though they will set aside the judgment, will not order the tenant in possession to pay the costs, but will EJECTMENT. EJECTMENT. 181 leave the landlord to his remedy under ttie statute 11 Geo. II. lb. VI. Staying Proc eedings till Costs OF FORMER EJECTMENT PAID. Sec div. V. 1. When application to be made.'] — 1 . Where a party Aiils in his first action of ejectment and then brings a second, the defendant cannot apply for pay- ment of costs of the first ejectment till he has entered an appearance. Doc dcm. Flanders ct al. v. Roc, iii. U. C. R. 127. Rule refused, lessor of the plaintiff bcins; attached.'] — 2. Where the les- sor of the plaintiff had been attached and was on the limits for non-payment of the costs of a former ejectment brought by him for the same premises, a rule to stay proceedings in the second action until the costs of the former one were paid was refused. Doc dcm. Stetvart v. Roc, Mich. Term, 1 Vic. Second rjectmoit between same parties — Rnlc f^rantnl.'] — 3. In a second ejectment for the same premi- ses between the same parties, pro- ceedings were stayed for non-payment of the costs of the first. Doe dcm. Lake v. Davis, iii. 0. S. 311. 4. Proceedings will be stayed in ejectment until the costs of a former ejectment against the lessor for the same premises be paid. Doe dem. Husscy V. Roc, Easter Term, 3 Vic. Secotul action by heir, first being by ancestor.] — 5. In an action of ejectment by an heir, the Court refus- ed to stay proceedings until the costs of a former action, brought for the same premises by the ancestor, had been paid, the ancestor having died before any legal determination of that suit. Doe dcm. McKay v. Roe,Mid\. Term, 5 Vic, P. C.Jones, J. Rule granted, although plaintif not joined in the consent rule.] — 6. Where in ejectment the defendant ap- pears and enters into the usual consent rule, and obtains an order to stay pro- ceedings until security for costs be givi^n, and the lessor of the plaintiff subsequently serves new declarations, such subsequent proceedings will be stayed until the costs in the former suit be paid, even though the plaintiff had not joined in the consent rule. Doe dcm. Anderson v. Anderson, i. U. C. R. 275. VII. Judgment. Sec div. V. 3, b, 9, 10. — Judgment, 16, 17. VIII. Other Matters. Sec Alien, .5. — Arbitration and Aavard, IV(3), 5, 9. — Binbrook (Township of). — Crown Grant, 16.— Evidence, II. 4, 7; VII. 1.— Heir, 2, 3. — Husband and Wife, 6. — Infant, 4 Lease, I. 5. — Mortgage, passim. — Nonsuit, 20. Onus Probandi, 6. — Record,?. — Rector. — Survey, 2, 3. — Taxes, 3,4,5, 12. — Tenancy in Common, 2.— Title, 11, 12, 13, 14, 15.— Witness, 22, 25, 26. Rigid of parly entitled to 2)ossession to i/iaintain, against ^?rt;Zy having the legal title.] — 1. A. is let into pos- session of land by B., upon an agree- ment to purchase, with the understand- ing that he is to remain in possession until he makes default in the payment of his instalments. A. afterwards, without making any default, lets B. into possession, upon an express con- dition however, that he (B.) is to re- store to him (A.) the possession if a certain state of things should occur. The event upon which A. is to regain possession under this agreement hap. pens, B. nevertheless retains the pos- session, and A. brings his ejectment: Helff, that under these facts, A. being entitled to the possession, could main- tain his ejectment against B., though he iiad the legal title. Doc dem. Barker ctal. v. Crosby, vii. U. C. R. 202. 182 l:JECTMENT. EJECTMENT. Crown lease — Assignment thereof — Notice to produce — Secondary evi- dence of assi. iirife of an at- tainted traitor — Defence of title in the Croio?i.'] — 17. Semble: That the wife of an attainted traitor remaining in possession of her husband's land cannot defend the recoveiy of the plaintiff in ejectment, (the purchaser at sheriff's sale in an action brought against the traitor upon a bond entered into before his attainder,) by setting up under the attainder a title by forfeiture in the Crown, which the Crown had foreborne to assert. Doc dcm. Gilles- pie v. WixoH, v. IJ. C. R. 132. Landlord allowed to defend uith- out ajjiduvit.'] — 18. A landlord may be admitted to defend in ejectment without an allldavit stating that he is so. Doe dent. Grijjin v. Lee, Tay. U. C. R. 312. [See further case, 23 infra, and Inkant, 4.] Striking out one of ttvo demzses af- ter verdict.] — 19. Where upon two separate demises laid in a declaration a verdict passes for the plaintiff on one and for the defendant on the other, the Court will not, upon an application of the defendant, strike out the demise to the successful plaintiff on the ground of want of authority for suing in his name, except in very clear cases. Doe dcm. SimjJson et al. v. Molloy ct id., vi. U. C. R. 303. Release of action by lessor.'] — 20. A lessor in ejectment will not be al- lowed to release the action. Doe dem. Bayer ct al. v. Claus, iii. 0. S. l^ti. EJECTMENT. ENROLMENT. 185 Ri'jht to pnssessio)/. of any part of land sued fur cntitlin'j, to verdict. ^ — 21. In ojectment, wh'.Te tlie pluiii- tifl" proves Ins title to tlio possession as to any pait of the |)ieniises sued for, .e must obtain a verilicl, andtheCourt will not go into the (piestion of boun- dary, in order to determine the precise quantity of land he is entited to re- cover. Dof dciii. aUddon v. Ramsay et oL., vii. U. C. R. -ilG. Ecidrncc /iccrssary in cases of dis. piitcd boinidari(s.'\ — 22. In all eject- ments l)rouy:ht on account of disputed boundaries the plaiiitiiF has to shew, beyond any reasonable doubt, that he is entitled to some land Pv least of which the defendant is in possession. Where the point is a doubtful one, the plaintiir must be prepared to shew that he has had a survey carefully made, and that the proper st-'ps have been taken which the law re(juires for ascertaining the exact position of any posts alonif the line which can still be discovered by inspection, or can be es- tablished by evidence, in order that the Court and jury may see whether the two lots in question are, by the proof which the plaintilf is seeking to estai)lish, made to occupy their proper position on the concession line. Son- blc : That an admitted copy of the field notes from the Crown land office may be received in eviiience. Doe dent. Strong V. Jones, v)i. U. C. R. 385. When mortgagee alloived to defend as landlord.] — 23. A mortgagee will not be admitted to defend as landlord, in ejectment, imless he can shew that the tenant is his mortgagor, or holds under his mortgagor. Doe dem. Mal- lodi V. Roc, Mich, Term, 1 Vic. Expiration of title before trial — Damages.] — 24. A lessor, who had the title to the premises at the time of action brought, but not at the time of trial, is entitled to damages, although he cannot recover his term. Doe dem. 2 A Meyers Vi.. V. Blakier, Easter Term, 2 [See statute 11 & 15 Vie. ch. 114, which alters the proceedings in the action of eject- ment.] ELECTIONS. See Bank of Upper Canada, 1. — DisTRfCT Council, 12, 13. — Libel Slander, II. 7. — London (Town of), 3. — Mandamus, 4, 5. — Quo Warranto. Declaration under 4 Geo. IV. ch. 4, for costs.] — In an action under 4 Geo. IV. ch. 4, sec. 35, to recover the costs incurred by a member of parlia- ment in opposing a petition against his return, it is sufficient to declare in the general form mentioned in the statute, and it is not necessary to aver any de- mand of the costs. Smith v. Rmtrke, Hil. Term, 5 Vic. ELEGIT. Judgment not a lien for the pur- IMSC of.] — 1. A judgment is not a lien upon lands lor the purpose of an elegit, so as to avoid the effect of a writ of fieri facias against lands, issued on an- other judgment subsequently entered, but placed in the sheriff's hands prior to the elegit. Doe dem. Henderson v. Burtch, ii. 0. S. 514. 2. QucBre: Can an elegit be issued regularly in this province 1 lb. EMBRACERY. See New Trial, VII. 3. ENQUIRY (WRIT OF). See Writs of Trul etc. ENROLMENT. See Bail III. 7.— Dbei>> III. 186 ESCAPE. ESCAPE. EQUITABLE JURISDICTION. See Attorney, III. 17, 18. EQUITY OF REDEMPTION, See ExECLTioN, 11. — Mai.ntena.vce (Statute of), 7. — Moutgage, 5, 13. ESCAPE. See False Imprisonment, 1. — Lim- its, II. 12, 13. — Sheriff, IV. 3, G, 7*— Verdict, 10. WJiatis.]—!. The Court refused to (lis(;l\argc a prisoner from custody upon the ground that the gaoler, havin|; taken him before a magistrate without warrant, had siuOered a voluntary es- cape, lldiiimm V. Hall, Tay. U. C. R. G2.5. [Aiiebtor in custody of the sheriff oti mesne procfss was taken after the writ was re- turnable by the gaoler to a revising barrister in the sanne county, and returned the same day. It was held that this was an escape. WilUams V. Mostyn, iv. M. & VV. 145,] Attorney, as sit V*, ?wt alloi'rd to dise/i(trire drfrndunt from citstnthj.'] — 2. An attorney (merely as sueh), is not authorized to discharsie a defen- dant in execution — certainly not with- out receiving the deht, and a sherilVso discharging a debtor upon his authority will be liable as for an escape. Brof'k V. McLean, Tay. U. C. R. .'i^H. [See Stncklne; v Cameron, 26 inl'ra.] Variance bet.teeeii pleadings and evidence] — 3. In an action on the case against a slieritV for not arresting a debtor, an an averment in the decla- ration of the issuing of an alias writ of ca. re., to support wliich an ori>/Dial writ of capias was j)roduced at the trial, the variance was held immaterial. Wood V. Shera-ood, iv. O. S. 128. [Also see Variance, 10.] Prisfnier hrou'Jd up on a habeas cmpns — Sidjserjuent detention] — 4. It is not illegal to issue a writ of habeas corpus to bring up a debtor in custody on an attachment for the non-payment of costs, and llie sherill' cannot there- fore justify an escape from the attach- ment on the ground that the debtor was brouuht up by habeas corpus by the plainiitl, and that.it would have been illegal for the sherill" afterwards to detain him, and so he permitted him to leave his custody. Graliam v. KinL's/iiil', JMich. Term, 7 Vic. I'lra of no indorseiurnt on vrit.] 5, A pleti to an action for an escape, iilieging " that the ca. sa. was not indorsed with the sum set out in the ile<'laralion," was held bad on special demurrer. Brock v. McLean, Tay. U. C. R. 423. M'/iat etjuii'aletit to an escape.'^ — C. Where a sherill" refuses to produce a prisoner in his custody twenty-four hours after notice, it is an escape. Wragg V. /«/-m,i\Iich. Term, 6 Wm. IV. ^ Eiide?icc of escape under j)lcad- ings.] — 7. Where in debt for an es- cape on a capias ad satisfaciendum, the sherill pleaded that he gave the pri.soner the benefit of the limits, and that she never left them &.c., the plaintitV re|)lied that she did leave them : Held, that the plaintiff shewed an escape under this issue by proving that after the prisoner was admitted to the limits she was remanded back to custody, that the order remanding her was delivered to the sherifV, and that he received due notice to produce her body, but failed in doing so. Ih. Averment of parti/ escaped having been, indebted to plaintiff — Plea de- nying it — Evidence.] — 8. In an ac- tion against a sheriff (or the escape of A., arrested on a ca. re. at the suit of the plaintiff, the declaration averred " that he was indebted to the plaintitT in a large sum of money, to wit, &c., upon and in respect of certain causes of action before then accrued to the plaintiff against the said A. &c." The ESCAPE. KSCA.PE. 187 defendant pleads, denying that A. was i indebted to tlie ])laintitl'in inanneraiid , form as the plaintill' alleged. Held, \ that under these pleadinsis, the plain- i tiff would be entitled to lucover il" he ( shewed that (unj diht accrued lo him ' against A. before hi; sued out the writ. : &Reillij V. Momlip, iv. II. C. R. 266. ! Sheriff vol (illourd to raise tecltni- j col ol/Jccdons.'] — 9. ITe/d, that it is| not open to a sherilV sued tor an es- ! cape to set up technical objections in ; regard to forms of action and points of practice, having noiliinsr to do with the fact of the existence of a debt, which perhaps the debtor himself might have urged in the original suit. lb. [Also see 12 and 17, infra.] Writ issued from District Court — Escape tJienJrom — Avrrments.'] — 10. In a declaration for an escape on a writ issued from a district court the making and filing of an aflidavit of debt must be alleged. Wni^u; v. Jar- vis, and Munson v. Hamilton, Easier Term, 6 Wm. IV. Escape on aitaehment for contempt — Lialnlity of sheriff.'] — II. A she rill' is liable for the escape of a parly at- tached for contempt of court, in not performing an award ; and it is not necessary, in order to this action, that the party should be brought up on the return of the writ of attachment, and formally committed by the Court. Huntley v. Smith, iv.U.'C. R. 181. Sheriff cannot (jijjccl to any pro- ceedin7, was issued subsc- (juently to the dealli of A., and asking the grant for the benefit of A.'s credi- tors, of whom B. was one, w\\.\\ con- sent of A.'s administratrix. This was also rejected by the learned judge. The defendant then called a witness, a surviving brother of A., who proved that the latter left this province in the fall of 1796, in very bad health, being in fact considered in a desperate con- dition ; that he wrote t'rom New York, stating that he was better and intended proceeding to the West Indies ; and that in the following spring the wit- iV^ !l 196 EVIDENCE. ness vvas informed of his death. The learned judge refused evidence of the day on which (as the witness heard) his death took place, or to receive evi- dence of the family reputation of the day of his death, or to allow the wit- ness to prove the statements of a per- son who came from the West Indies, stating himself to have been the ser- vant of A., or to prove the contents of certain papers (since lost) which the witness received from the servant, and alleged to have been an inventory of A.'s effects at the time of his death, and an account of the sale of his effects after his death. And upon the evi- dence admitted, it was left to the jury to say whether A. died before or after the 10th March 1797. If before, to find for the defendant, if after, to find for the plaintiffs : Held, (Robinson, C. J., dissentiente), on motion for a new trial without costs, on the ground of misdirection and rejection of evidence, that the evidence rejected by the learned judge (Jones) at the trial, was inadmissible ; but, that as the nature and character of gome parts of the evidence rejected were not known with sufficient certainty, the Court would grant a new trial on payment of costs. The Chief Justice was also of opinion, that even after the whole of the evidence objected to had been dis- allowed, the jurj' would have exerci^od a sound discretion, in finding for the defendant upon the evidence which had been admitted. Doe dem. Arnold et al. V. Auldjo, v. U. C. R. 171. Wh^n henrmy evidence of declara- tions proving pcd'grec is admissible.'] — 2. Before a stranger can be al- lowed to give evidence of declarations as to pedigree, made by a relation of the family, there must be shewn, 1st, the death of that relation, and 2ndly, the fact of his relationship to the fami- ly, which fact must be proved aliunde, and not by his own assertion. Doc dem. Dunlop v. Servos, v. U. C. R. 284. [See Heir, 2.] EVIDENCE. IV. Records and Public Docu- ments. See Crown Grant, 7 — Deed, III. 11, 12.— Ejectment, VIII. 22.— Evidence, II. fi, 10,11, 12. — Judg. ment, is. — MAticious Prosecu- tion, 3. — Record, 1. Admissibility of a coniinvanccroll as a record — Parol evidence.] — 1. A continuance roll found in the proper office, and entered and filed there by the proper officer, is admissible evi- dence as a record of the Court of Queen's Bench, although not com- pared with the papers filed in the cause ; and parol testimony cannot be received to contradict the roll. Pren- tice V. Hamilton, Dra. Rep. 410. Admissibility of an affidavit fled.] — 2. To prove that a party made an affidavit which has been filed, a sworn copy of the affidavit, coming from the hands of the proper officer, and shewn to have been used in the Cause, is suf. ficient. Spaffmd v. Buchanan, Hil. Term, 4 Wm. IV., and Fitzgerald v. Webster, Mich. Term, 3 Vic. Admissibility ofcnjjies of eorhibits.] — 3. Sworn copies of exhihsts filed in the Crown office cannot be received in evidence ; the originals should be produced. Nelson et al. v. McDon- ell, Hil. Term, 7 Wm. IV. Proof of piddic docameiits.] — 4. Any public document, filed in a pub- lic office of the government, may be proved by an examined copy. Mc- Lean V. McDonell, i. U. C. R. 13. Commencement of actions jyroved by original itrit.] — 5. The commence- ment of an action may be proved by the production of the writ of ca. re. The minutes of the clerk of the Crown or his deputy on the writ, marking the time of issuing, is prima facie proof of the fact. l7))y;£T v. McFarland ct al., v. U. C. R. 100. V. Writings cENERAtLV. See Judgment, 3. — New Trial, II. 9, 21 ; VIII. 4.— Receipt. EVIDENCE. EVIDENCE. 197 Certificate of cnmmimnnpr admin' istcritig oa.th, of al/cgit(nrr.'\ — 1 . Tlio certificate of a commissionor for ad- ministering the oatli of allo|riaiico, is evidence after his death, and tliat of the party taiiin;^ the onlii. Doc ilf- Farlane v. Lituhay, Dra. Rop. 1.'}]. Proof of Imiicl, ii-licrc mthscrihi/ig n-it- ncssoiit of the coil lit r If. ^-2, . Wiicre the subscribing witness to a bond is out of the country, and no one can be founii who is .iMpiainted witl\ his Imnd-wri- ting, evidence of the hand-writing of the obligor is suHicieiit. Bninctt v. McDona/d, Easter Term, 3 Vic. Deed — D/sj)n/si/i,s vitli pntdiiclinn ofsnbsc)'if)i)iv: m'/nr.ss.J — 'i. In ord"r todispcnse witli the j^rodiiclioM of sub- scribing witnesses to a deed, it must be shewn thateveryreasonnl)le encjiiiry has been made for them in the place where they were most likely to be found, and that they cannot be dis- covered. 2\jJden v. Bullcii, iii. U. C. R. 10. [See case 6, infra.] Tresjyass for seizins sioodx — Tr/- ters tojtrovc owncrshi]) of the p:niids.'\ — 4. In trespass for seizing the pliiin- tiff's goods, under an execution nirainst the goods of A., it was held, tiial a let. ter written by A. before any tliird party had an intercut in questioning t!ie riglit of the goods, was evidence to go to the jur}' to shew the footing on which the the plaimill' and A. then stood with respect to the goods. Rdiinsoa v. i2a/;f//V,iv.U.C. R.289. Witness to note — When product ion of, dispensed ici/h.'] — ;'>. The defen- dant was sued as maker of a note, in- dorsed to the plainliir. There was a subscribing witness to the same, who was not produced at the trial, and no objection was taken on that groutul. But as the defendant had, bel()re the indorsement, admitted to the i)laintitl that he had made the note, and induced the plaintiff to take it : He/d, that it was not necessary to prove tiic note by the subscribing witness, as the defendant could not be allowed to dis- pute his own signature. Perry v. Lavless, v. U. C. R. 514'. Deed — Liri/fis idtiiesses to he ac- ronnted far.'] — 0. A. B. and C. are v.itnessLsto a deed. — A. having been shewn to be dead, his hand-writing is proved ; tiie iuind. writing of B., who is also lessor of the plaintiff, in an action of ejectment, is also proved. D., the defendant in the action of ejectment, having proved B.'s hand-writing, rests his proof of the deed there, without attempting to account in any way for the absence of C, the third witness, Sendj/e, per Jones, J., that the deed, without accounting for (he absence of the witness C, was not legally j)roved. Doe den?.. McDonaldv. Twiugct al., V. U. C. E. 1()7. "^ Proof of agrremcnt, vhcn dgna- fnres of sulisi:ri(ji/>g irit/tesses doubt' fi/.'\ — 7. Althoiiah one of two wit- nesses to an agreemeiit may deny his signal m-e, and a peivon well acquaint- ed with the hand-writing of the other \vitness may refuse to say that the sirziir.turo is genuine, it may still be left to llie jury to sny, under (he circum- s1,Tnr(>s of the case, whether the agree- meiit has not in liict been signed by llie parties. Barlicr v. Armstroug, Trin. Term, 7 Vic. VI. Presumption of Death. Ejectment — When death may be 2iresi/nied — Onns prohnndi in such a, case,'] — It was proved at the trial of this cause that A. was last seen m the province in December 1^27, and was never after\Nards heard of. A fi. fa. against A.'s lands was placed in the slierilf 's hands on the 13th of July 1«33, tested the 2!)th of June 1833, The heir of A. brought an action of ejectment against the purchaser under the slierilf 's sale and attempted to re- cover upon the groimd that, afler so many years (about 15) had elapsed over and above the seven years the law presumed A. to have been living Jk^i 198 EVIDENCE. EVIDENCE. s; 1! ]\ since he was last heard of, the pre- sumption that he did not die till the ex- piration of the seventh year, though there was no circumsttuice in evidence to shew that he died earlier, was at an end, and that it was incumbent on the purchaser at sherilT's sale to shew that | he did not in fact die till after tiiei seventh year, and that the jury should be directed to find whether he did or did not die within the term of seven years ; huiheld, the proper direction to give the jury was that at the end of seven years the fact of death was to be presumed and )iot sno/in; unless there was some evidence atlecting the pro- bability of life continuing so long, and also that li was incumbent on the heir of A., and not upon the purchaser un- der the fi. fa., to shew when A. died. Doe dem. Husfrmaitv. Stiviii^ ct id.. iv. U. C. R. 510. [The law may presume death after seven years' absence, but not the time of the deitlli. Nepean v. Doe dem, Kiiighl, ii. iM. & W. 894.] VII. Admissions and Declara- tions. See Account stated, passim.-BiLLs OF Exchange etc., V. 20. — Cui. MINAL CoNVEltSATION.-EviDENCE, III. 2.— Executor ltc, II. S, 1). Joint Stock Company, 2. — Lim- its, II. 1.5.— Maintenance (Sta- tute of), 11. — New Trial, I. 8. Receipt, 1. Admmions of a rail jyJdinlifj' in ejectment^ lliv Irssvyr hcinii: an infaiti .1^ — 1. The admissions of the plaiiitilV in ejectment, being a real person, (tlie lessor being an int'aiit,) ate not evi- dence, to prevent the recovery of the premises. Nichol&m dem. Sjkifford V. Roe, iii. O. S. 84. Admissions of witness before trial to contradict his oicnslatcmvntsuLthr trial.^ — 2. Where the plaintilf in an action of trespass for cutting and car- rying away timber, on which issue was joined on a revocation of license, called the agent of the defendant to prove that he had revoked the license to him and that the defendant still continued to cut the tind)er, and the witness de- nied the revocation to him: Hrld, that the plaiutilV might call other wit- nesses to prove that they liad heard this witness admit that the license had been revoked to him, and that the wit- nesses knew that he had still gone on and cut the timber after he had made that admission. ]\rX(ih v. Stinson, Trin. Term, 5 & fi Vic. Admissions hi/ letter open to cviila- nali.0H.~\ — 3. Letters written by ♦he parties to a suit, like receipts and ot er admissions, are always open loex,,ia- nation, unless under the particular cir- cumstanecs of the case they may have lead to conduct in third parties involving loss to them by reason of their having acted upon the faith of such letters. CnrilUrr et id. v. Broicne,\\. U. C. R. 105. Wlirti attorney (nund Inj odmis- sio/is of Iris rlinil''s ogcnt.^ — 4'. A., defeiKiaiit's attorney, acceptiiiLr his in- structions from B. as the aticnt of the detl'miaiit, and making his defence un- d(.'r them, is boimd at the trial by the admissions B. has agreed to make. Due dem. M' Donald v. Lonq, iv. U. C. R. 14fi. Declaration of testator as to lis n!xe.'\ — 5. The declarations of a de- ceased testator resjiecfing his age r.t the time of the execution of his will are not admissiljlc as evidence. Doc dem. S/e/ihen el, U.c. v. Ford, iii. U. C.R.352. VIII. Practice and miscellaneous Matters. See Absconding Debtor, 13. — Amendment, III. 3, 1, 5, 9. — Arbi- tration AND Award, III(l), 1. — Assault and Battery, 5, (i. — Contract, 1. — Dower, ill. 6. — Ejectment, VIII, If). — Judgment AS IN CASE OF NoNSUIT, II. 8. — New Trial, I; II. — Onus Pro- BANDI. 3 EVIDENCE. EVIDENCE. 199 Evidence of Uand-writinf; — Bocu- tnents lawonncacd with, the cause, inadmimble to rrf/rsh idtness' mcmn- ryJ] — 1. A {k'l(,'r\(luiit''s comisol, in order to obtain iVorii a witness an opinion as to the liaml-wntiiiff of the plaintilV's receipt in full fo tlie action, proposed to ]>nt into his hands other papers puriwilinii: to have been siiiiied hy the plaintlif, hut in no ivay imi- nectcd vith ihc cavac The learned jud^e at Nisi Priiis objected to this course, and would not admit of the witness being exan\ineJ as to the udier writings till he had first, from liis own recollection of the plaintilf's hand-wri- ting, given an opinion iijion the sisna- ture of the receipt : Held, on motion for a new trial, that the leanu'd juiltre had properly ivfiised to admit the evi- dence. G/ccso/i V. Wnl/.acc, iv, U. C. R. 24.-). [If evidi'iice be rojrctwl at NLsi Prius, tlie counsel must ro(nii'.si tlji' jiii!;,'c! to note it. it elsf lie will not Ito iillowi-d to aruiie in linuc. any (Hifstion iiiisin;; oiil of such evideiiCL", unless the juiliie's notrs sln'Wllie point to have breii raiso 'f, 11. 5. Jlssujiijisit — See Assumpsit. 11. 8, et seq. — Monky Counts, iiil'iu. 6. Atlornies' bills — Sec Attokney, III. 3,8. 7. Jlurt ions— Sec Auction and Auc- tion eek, 2. %, Awards — Sec Ariutration and Award, VI(2). 10, 11. 9. Bail— Sec Bail, II, 4, (latter part), also, 15. 10. Bailiffs— Sec Bailiff, 2. 11. Bankrupts — See Bankrupt etc., 16. 12. Bills of Excliange — See Bills of ExCHANGK ETC., III. pus.sim ; V. 1, 5, 9, U),20; VI. 4.0; VII. 10,12, 14. — TlviDKNCE, V. 5. 13. Carriers— See CAiiniER, passim. 14. Case — See Case (Action on the), 2,9. 1.5. Compositionwithcreditors—SceCoj,i- I'OSITIO.V. 16. Contracts— See Contract, 1, 4. 17. Covenants— See Covenant, 11(1), 5; 11(2), 11,12. 18. Crown Grants — Sec Crown Grant 7,17. 19. Customs— See CusTOiMS Acts, 5. 20. Demurras;e — Sec Demurrage, 2. 21. Disputed boundaries— See Eject- ment, VIII. 22. 22. Doiwr— Sec Dower, II. 6, 7,16,17. 23. Ejectment— See Ejectment, II. 11 ; VIII. passim. — Evidence, II. 4, 8; III. 1.— Forfeiture, 1.— Heir, 2, 3. — Rector. — Taxes, 3, 4 5, 12.— Title, 11,12, 13, 15,18. Witness, 25. 24. Escapes— See Escape, 3, 7, 8. 25. Executors— See Executor etc., II. passim. 26. Fahc Imprisonment— See False Im- piusonment, 8, 9, 10. 27. Ferry — See Fkbry, 1, 4. 28. Foreign Judgments — See Foreign JuDGiMENT, 2, 4, 5, 7, 11, 29. Foreign Laws — Sec Foreign Law, 1. 30. Frauds (Statute of )— See Frauds (Statute of), I. 3, 4, 5, 6. 31. Gcnrral issue (Evidence under)— See Gknekal Issue, and the cases tlicre rcli'ired to. 32. Goods sold— Sec Goods sold, 6. 33. Guarantees — See Guarantee, 1, 6, 7. 34. Libel — See Libel and Slander, HI. 35. Limitations-See Limitations(Sta- tute of), hi. 4, et seq.; IV. 9, et seq. 36. Malicious Arrests — See Malicious Arrest, 4, 9, 14, 17, 22. 37. Malicious Prosecutions — See Mali- cious Prosecution. 38. Marriage— See Marriage, 2, 3, and oases there referred to. 39. Mesne Projlts—See Mesne Pro- fits, 2, 3, C. 40. Money Counts — See Money had AND RECEIVED, 6, 13. — MoNEY Lent. 41. Payment— See Payment, 2, 3. 42. Pedigree — See Evidence, III. 2. — Heir, 2. — Witness, 24. 43. Promissory notes — See Bills of Ex- change etc., supra. 44. Replevin — See Replevin etc., 3, 4, 5,8. 45. Seats of Corporations — See Corpo- ration, 10. 46. Seduction — See Seduction, 12, 13. 47. Set-off-See Set-off, 12, 15, 18. 48. SIteriffs — See Sheriff, III. passim : V. 19. 49. Sluiuler — See Libel and Slander, III. 50. Trespass — See Sheriff, IIL pas- sim. — Trespass, II. passim. 51. Troucr— Sec Trover, II. 3,4. 52. Use and Occupation — See Use and Occupation, 2, 3. 53. Vsunj—See Usury, passim. 54. Warranty — See Warranty. EXECUTION. EXECUTION. 201 EXCHANGE. See Bills of Exchange etc., VIII. 2,3. EXCISE. See Customs Acts. EXECUTION. See Action, 3. — Alien, 6. — Attor- ney, 11(1), 2. — Bankrupt etc.,4, 7, 10. — Capias ad Satisfacien- dum. — Cognovit, 11. — Corpora- tion, 2. — Costs, VII[. 6. — Dis- trict Court, 2. — Dower, III. 1. Elegit. — Estate, 5. — Executor ETC., 1. 4. — False Return. — Fie- ri Facias. — Heir, 4>. — Irregu- larity, 14<. — ^Judgment, 14«.-New Trial, II. 22. — Scire Facias, 4, 5. — Sheriff, I. 1, 10. — Sheriff's Sale, 2. — Venditioni Exponas. EoKcution on j iidgment for benefit of a third party.'] — 1. The Court will not order that execution shall issue on a judgment for the benefit of a third party, a stranger to that judgment. Gamble et al. v. Busscll, ]\Iich. Term, 7 Wm. IV. Levying debt on one of several de- fendants'] — 2. The Court will not re- strain a plaintiir from levying the whole of his debt on one of several defen- dants. Zndtz V. Hoover et al., Mich. Term, 2 Vic. Execution attaches on goods in acs- tody uitltout seizure.'] — 3. Where goods are already in the custody of the law, a writ of fi. fa. at once attaches upon them, without an actual seizure. Beekman v. Jarvis, iii. U. C. R. 280. Action in debt — Cognovit in as- sumpsit — Execution thereon.] — 4. The Court will not set aside an execu- tion upon the ground that the action was commenced in debt and the cog. novit given in assumpsit. Brown v. Waldron, Tay. U. C. R. 679. 2 c Setting aside execution fiaving priority, on motion of strangers.] — 5. Where there were several executions against the goods of a debtor and there was a defect in the proceedings of the execution creditor, who was entitled to priority, which might have been suffi- cient to have set them aside on the motion of the debtor, — the Court re- fused to set them aside on the appli- cation of the subsequent execution creditors, made for the purpose of ob- taining priority for their writs of exe- cution, without the knowledge or con- sent of the debtor. Farr v. Arderly^ i. U. C. R. 337. Staying proceedingSfplaintiJfJuiv- ing fled the jii'ovince.] — 6. Where the plaintiiT obtained judgment against the defendant ten years ago, and two or three years afterwards fled from the province charged with a criminal of- fence, and a writ of execution had been issued on the judgment without any leave of the Court, or notice to the party, — the Court made a rule ab- solute to stay the proceedings. Hobson v. Shaiul, iii. U. C. R. 74. Sued out by assignee in the name of the assignor.] — 7. A. obtains a judgment against B. on his bond, and after this assigns the judgment to C. for valuable consideration. C. issues a writ against B.'s lands in the name of A. B. applies to set the writ aside — the Court discharged the application. Commercial Bank v. Boulton, vi. U. C. R. 627. Irregularity — "Waiver.] — 8. It is an irregularity only, and not a nullity, to issue an alias ii. fa. after a return of " goods on hand" to the original fi. fa., and a ven. ex. upon it, on which the sheriiT returns " that the goods had been exhausted by prior writs ;" and the ir- regularity is waived by the application against it not being made in due time. The Commercial Bank v. McDonell et al., i.U.C. R. 406. [See Irregularity, 14.] Priority.] — 9. In determining the priority of writs, the Court will look 202 EXECUTION. EXECUTION. to the fraction of a day. Beekman v. Jarvis, iii. U. C. R. 280. Spent execution.'] — 10. Nothing can be done under an execution after it has ceased to be current, unless for the purpose of perfecting what had been commenced while it was in force. Doe dcm, Greenshields v. Gan-ow, v. U. C. R. 237. Different species of estates and inter- ests liaUe to execution. Equity of redemption.'] — 11. An equity of redemption in a term of years cannot be sold on an execution. Doc dem. Webster v. Fitzgerald, Easter Term, 2 Vic. [The statute 12 Vic. ch. 73, passeU since this decision, enacts generally that the inter- est of a mortgagor may be seized on an exe- cution against lands.] Interest of mortgagee.] — 12. After a mortgage in fee has become for- feited by the non-payment of the mortgage money, the mortgagee's in- terest in the mortgaged premises can- not be sold under an execution against lands. Doe dem. Campbell v. Tlurmp- son, Hil. Term, 6 Vic. Lands of testator on jiidgment against executor.] — 13. Lands and tenements held in fee simple by a debt, or at the time of his decease, may be legally taken in execution on a judg- ment against his executor or admin- istrator. Forsyth v. Hall, Dra. Rep. 304. [See Executor etc.. III. 3, 4, 5, 6, 7.] Sale of debtor* s possession of lands under fi,. fa. goodsl] — 14. Mere possession of land by a debtor consti- tutes prima facie a seizin in fee, and such an cblate cannot be sold under an execution against goods and chat- tels. Doe dem, Keogh v. Calhoun, i. U. C. R. 157. Rights of entry not liable.] — 15. The sheriff under an execution against lands can only sell the debtor's inter- est in possession, whatever that interest may be ; he cannot sell the debtor's mere right of action while a third party is in adverse possession of the land. Doe dem. Ausman et al. v. Minthorne, iii. U. C. R. 423. Term of years] — 16. A term of years cannot be .sold under an execu- tion against lands and tenements. Doc dem. Court v. Tupper et al., Trin. Term, 1 & 2 Vic. Trust estate.] — 17 A., the as- signee of a certain leasehold property, makes an assignment to B., upon an understanding that he is to hold the property only as his agent till his return from the United States. A. returns, and directs B. to assign the same to C, which he does. D. having an execu- tion against the goods of A., purchased A.'s interest in the lease at the sher- ifl''s sale : Held, in an action of eject- ment, brought by D. to recover posses- sion from C, that A. had no estate which could be sold by the sheriff, and that a verdict should be entered lor the defendant C. Doe dem. Simpson V. Privat, v. U. C. R. 215. Sale of rent charge under aji. fa, goods.] — 18. A rent charge issuing out of, and chargeable upon a freehold estate, and granted to a person for his life, is not subject to be seized and sold as a chattel, under a writ of fi. fa. against goods. Smith v. Turtibull, v. U.C.R. .586. Abandonment of seizure,] — 19. The sheriff, on the 1 5th of April 1835, received a writ of fi. fa. against lands, and on the 10th of May 1836 he sold some of the defendant's lands under it ; other portions of the land, though in- cluded in the sheriff's advertisement published previously to that sale, were not sold. There being no adjournment of the sale, or any postponement from time to time, or any new advertise- ment, the sheriff, in December 1838, suddenly takes up this old writ, issued in 1835, and proceeds to sell under it the lands unsold in 1836 : but held, that the seizure under the writ of 1835 must be considered as abandoned, and the sale of 183& void. Doe dem. EXECUTOR. EXECUTOR. 203 lof Cameron v. BxMnson et al., vii. U. C. R. 335. Right of execution creditor, when debt satisfied, to assist sJicri/Ps vendee by issuing alias fi,fa.'\ — 20. Wlierc tlie execution creditor had been paid his debt in full in 1840, by the assignee of the shed AT 's vendee of land sold under a fi. fa. lands — the Court, upon the (acts given in the report, set aside an order in chambers, obtained by the attorney for the ai EXECUTOR. EXECUTOR. 205 executors could not control their ex- press contract. McDonald v. Mc- Donell ct al., Hil. Term, 4- Vic. Lialnbity of pxrcvtors of a dr- ceased joint contmrtor tvlicn llir t^her living,] — 1 1. Wiiere in an action of assumpsit on a contract against ex- ecutors they plcaileil that tiie cause of action accrued in Scotland, against their testator and one A. jointly; that A. is still living, and that by the law of Scotland where the contract was made, if one of the parties to a joint contract die, his personal representa- tives are discharged, — the plea was held bad on general demurrer, as hy our provincial statute 1 Vic. ch. 7, the personal representatives of a joint contractorare made liable notwitstand- ing the survivorship of the other, and the lex loci contractus applies only to the contract, and not to the rancdy, Gilmorc v. Crooks et al., Hil. Term, 6 Vic. [Also see Foreign Judgment.S.] Liability of executors of sureties 07t, defalcation of principal.'] — 12. The executors of sureties are liable for the defalcation of the principal, committed after the death of their testator, and even after notice given by the execu- tors that they would not be liable. Regina v. Leeming ct al,, vii. U. C. R. 306. II. Proceedings by. See Arbitration and Award, VI (1), 7. — Bail, II. 14 — Ejectment V.4. — Limitations(Statuteof), IV. 9. — Money had a:;d receiv- ed, 1, 10. — Scire Facias, 3. — Set-off, 5. Statement of cause of action.] — 1. Where a plaintiff sues in a represen- tative character, the cause of action must be stated in the declaration to have accrued to him as such represen- tative. Hawn et al, v. Madden et al., Easter Term, 2 Vic. Action by surviving executors — Dedaraiian.] — 2. Where one of three executors is dead, and the survivors bring an action in right of their testa* tor, the declaration must state that pay- ment has not been made to the de* ceapcd executor. Nichall et al. v. Williams, Tay. U. C. R. 20. Necessity for exca/tors to produce jvi/kiIc in actions hy them.'] — 3. An executor suing for a cause of action aflerlhe death of his testator must, un- der the general issue, produce the pro. bate of the will ; but where, c.n the (general issiie pleaded to a declaration containing counts for a cause of action in the time of the testator, as well as since his death, both causes of action were proved but no probntc was pro- duced, it was held that the production was unnecessary, as it appeared on the record, from a verdict being found for a cause of action in the time of the testator, that the plaintilTs were execu. tors. McGill ct al. v. Bell et al., iii. O. S. 618. 4. Where the plaintiffs declared as executors, laying promises to the tes- tator in his life-time, promises to the plaintiffs as executors after his death, and on an account slated with the plaintiffs as executors — the Court held that it was not necessary to produce probate to prove their representative character. Dickson et al. v. Markle, Dra. Rep. 298. Action hj administrator — Plea of nc imques (ulmimstrator.] — 5. Where a plaintiff in his declaration styled him- ;elf as administrator of A., and laid promises to himself administrator afore- said, but did not aver any debt or promise to himself as administrator, nor make any profert of letters of ad- ministration — a plea of ne unques ad- ministrator was held bad on general demurrer. Walker v. Court, Hil. Term, 6 Wm. IV. Bo7id. to executors, luno to sue there- on.] — 6. On a bond given to executors, they may sue either as executors or in their own right. Davis (executors of) V. Davis, Trin. Term, 1 & 2 Vic. 1 /.;;; ..-_, _1_— lUL-MJ 806 EXECUTOR. EXECUTOR. Production of letters of adminis- tration.'] — 7. Upon the issue of ne unques administrator, the plaintiff, pro- ducing such letters of administration as he has pleaded, will be entitled to suc- ceed. If the letters of administration do not give the plaintifT a right to sue, by reason of anything extrinsic, sucii as the place of residence of the defen- dant, &c., the extrinsic fact must be pleaded specially. Upon the issue of ne unques administrator de bonis non, the plaintift' need not produce the ad- ministration granted to the lormer ad- ministrator. Beard v. Kctdmm, v. U. C. R. 111. [Grant of administration relates back to 'he death of the testator, for several purposes. — Fbsta V. Bales, xii. ]M. & W. 226 ; Thorpe V. Stallwood, 5 M. & G. 760 ; Whitehead v. Taylor, 10 Ad. & p:il. 210 ; Patten v. Patten, 1 Ale. ic Nap. 493.] Averments of promise to j^laintiff, administrator de tionis non — General issue — Evidence.'] — 8. The plaintiff, as administrator, sues the defendant upon four notes made in 1796, aver- ring adnnnistration de bonis non in 1847, and laying promises to himself as administrator. The defendant pleads that he did not promise in manner and form, re the nearest justice of the peace. Oviatt v. Bell, i. U. C. R. 18. Omission of conviction in warrant — Liahilitij of justice.] — 7. Omitting to state the conviction of a defendant in his warrant of commitment will not subject a justice of the peace to an action for false imprisonment, provided 4. In trespass for false imprisonment | I'le actual conviction be proved upon a plea justitying under district court '"s defence. Whelan v. Stevens, process, which had been set aside for irregularity on the terms of no action being brought, cannot bo sustained. The defendant should have applied to Tay. U. C. R. 328. Justification under warrant — Ge- neral, issuc^ — 8. The sheriff sued in trespass for false imprisonment in 2\Q FALSE IMPRISONMENT. FALSE RETURN. having arrested the defenilant under a in discharging the plaintiff from arrest warrant issued by the justices of the 'and setting aside the ca.sa., the grounds peace sitting in quarter sessions, may upon which the ca. sa. had been set give this justification in evidtMice under aside. lb. the general issue. Frascr v. DicKson, , V. U. C. R.231. Plea justiff/ing under en. sa. — RcpHcatioti. that, ca. sa. set aside — Evidence,] — 9. The plaintiff sued in trespass for false imprisoiuncnt; the defendant justified inider a writ of al. test. ca. sa. The plaintiff replied tliat after the said writ issued, and before action l)rousiht, the writ was set aside by order of the Court ; and he then proceeded in his replication to state the grounds upon wiiich the Court had set aside the writ. — The defomlant re- FALSE REPRESENTATION. &Ve Case (Action on the), 6. — Contract, 3. FALSE RETURN. See District Court, 12. — Sheriff, V. passim. — Venditioni Exponas, 5. Plainfiff settling sfint and aftcr- wa/ds s^iin'jfor.l — 1. Wliere a writ joined, that it was not ordered that tiie ; of fieri facias w as placed in a sheriff's said writ should be, and that the same i hands asi'inst the goods of the defen- was not set aside in manner and form jdant, who was in possession of property as the plaintiff alleged: Ileld,\\\?i\.\\n-\]n his di.' 'I FALSE RETURN. FALSE RETURN. 211 judgment accorilins; 1o law, is had on ' special deimirrer. Upjwr v. Hamil- «»yi,i. U. C. R. 467. [See also case 13, inl'ia,] Ref.iirii. ofjinrt — Drclnration aUeg- t)t;j^ the v:li()fr made — I'/ca, tliat none j madr.^ — 4. To a declaration tor a false return, allejiins; that the sheriirmadei the money, but returned that he liad i made fifteen pounds, and no more, il is a bad plea that the sherill' did not : seize nor levy any money, as he is j precluded by his return as to fil'teen i pounds, but to an averment that the ' sheritVmade all the money and Uid not pay it over, such a plea would be good, i lb. Pica, Ihit a certain, aiim v;as made j a,7td paid oiw.] — 5. It is also a gooil i plea to a breach, that the shcriirniadc | the money in the writ and did not pay | it over, that the sherifl' made a certain sum which he paid over ; and it is not necessary to shew to that breach that the defendant had no goods whereof the residue could be made ; althouirli to such a breach it is a bad i)lea, tiiat the sheriir was instructed to nudie a certain sum, and that he made that sum and no more, or that the writ was not returned as alleged in the decla- ration, lb. Writ asainat two defendants — Ac- tion — Flea, of no goods.] — (). To an averment of a false return to a writ against the goods iVc. of two defen- dants, a plea that they had not any goods, is bad on special demurrer — it should deny that cither of them had any goods. lb. Attachi)tg creditors — Priority of executions.'] — 7. Where attachments were issued against an abscondinsr debtor, and the last attaching creditor having obtained execution first, the sherilV afterwards returned nulla bona .he execution of the fust attaching creditor : Held, that he was liable for a false return, the first attaching credi- tor being entitled to priority. GainMe et al. V. Jarvis, Trin. Term, 6 & 7 Wm. IV. [See statute 5 Wm. IV. ch. 5, sec. 6.] Directions to sheriff not to sell iDi/css lie receive another execntion.'] — 8. Where writs of fieri facias against the goods of a defendant were placed in the hands of a sherilT by several plaintifl's, with directions to levy but not to sell unless another execution against the goods of the defendant was delivered to him, and having received another execution returnable the same term as the former executions, he re- turned it nu'la bona and sold under the first : Jlc/d, that the sherilV was liable to an action for a false return, the di- rections by the first execution creditors being fiaudulent as to the subsequent creditors, and the first executions there- by losing their priority. Ross et al. v. Ilanti/fon, Easter Term, 3 Vic. [See also case 1 1 , infra.] Priority hetiveen fi. fa. and com- mission of hanlrtqitcy.] — J). Where il creditor has placed his writ of fi. fa. in the shcrifl's hands, and before any actual seizure by the sherilf under the ii. lii., ami before the return day of the writ, the goods of the debtor are seized under a commission of bankruptcy, and " nulla bona" returned to the writ, the sheritV is liable on such return to an action at the suit of the execution creditor. Deratur v. Jarvis, iii. U. C. R. 133. Litdiilily of a sheriff for returns after resignation, hut before successor apiwiinted.] — 10. A writ of fi. fa. was delivered to the sheriff on the 21st of November 1847, returnable in Hilary Term 1S48. On the 9th of Decem- ber 1S47, the sheriff tendered to the government his resignation of office. On the 14tli of the same month it was notified to him that bis resignation had ijeen accepteil ; but his successor had not been appointed till after the return of the writ, \vhich was made in the interval. Tlio deputy sherill", who re- mained in the office to wind up the old * .-IJ! 213 FALSE RETURN. FENCES. business, made his return to the writ ; and in an action against the sheriff for a false return it was held, that under the facts proved, the sheriff must be considered in otlice at the return of the writ, and liable upon the return made. Ross ct al. v. McMartin, vii. U. C. R. 179. Sjjccial instructions — Priority of executions.'] — 11. Wiiere in an action against a sheritl" for a false return to an execution against goods, the plain- tiff averred that he delivered his writ to the sheriff with instructions not to proceed upon it until some other writ of execution against the goods of tlie same defendant should come into his hands ; that another writ did come it.to his hands ; that the sheriff seized and sold under both writs and made sulli- cient money to satisfy both, but falsely returned that proceedings had l)cen stayed on the plaintiff's writ, and that he could not in consequence make the money — the declaration was held good on general demurrer. Stnnige v. Jar- vis, Trin. Term, 4 & 5 Vic. Compromise by sheriff with debtor.] — 12. Where in an action on the case against a sheriff for a false return to a writ against goods, a letter was put in from the sheriff to the plaintiff's attor- ney saying that he levied tmder the execution on goods claimed by others, and that he had in consequence com- promised and agreed to secure the amount of the execution in two instal- ments at early dates, but the sherilV afterwards returned "no goods," and on the trial the exectiuon debtor and her pon-in-law proved that the property had been transferred to the son-in-law but remained in the possession of the debtor, and the jury found a verdict for the plaintiffs, the Couit refused a new trial. 3Icad et al. v. Ilainilion,, ii. U. C. R. 135. Plea of nn vrit duly sued out and duly returved.] — 13. A plea by the sheriff to an action for a false return to a writ of fi. fa., set out in the decla- ration that there was no writ against A.'s goods dtdy sued out and dvly returned, is bad. Grantham v. Jar- ris,\\. U. C. R. 511. Pica of 910 seizure of poods.] — 14. A ])lea by a sberilV that he did not seize any of the plaintiff's " goods" without adding " or chattels," is good on special demurrer. Jb. FEE SiaiPLE (ESTATE IN). Sec Estate, passim. FEES. Sec ATTonNF,y,III. — Clerk of the Peace, 1,2. — Costs — Counsel, 1. Deed, 111. 20,21.— Witness, 2. FELONY. See Arrest, IV. 11. — Criminal Law. — Magistrates, 1. FEME COVERT. See Abatement, 5. — Administra- tion Bond, 4. — Deed, II. 4, to 10, inclusive. FENCES. See Pleading, II. 11. Application ofi- Win. IV. ch . 12.} — 1. Tiie statute 4 Wm. IV. ch. 12 for re- gulating line fences, does not apply to cases where there is an express agree- ment existing between the parties. Lane v. Mulhnlland ct al., Easter Term, (> Wm. IV. Trespass for imfoinuling cattle — Plea, damage feasant — Ilepliention, 'fe?ieesout ff repair.] — 2. Trespass for I taking, impounding and selling plain- ;titl''s horses. — Plea, that the horses I were damage feasant. — Replication, that by town meeting regulations fences should be five ieet liigh, and FERRY. FIERI FACIAS. 213 that the defendant's fence not being that high, but ruinous and out of re- pair, plaintiff's hor:;es escaped out of his close into the defendant's close, without the knowledge or consent of the plaintiff: Held, good on general demurrer. Ives v. IlUchcoch, Dra. Rep. 254.. Cattle— Neccasit If for fences.} — 3. A land owner in this country must fence against cattle. Sjxiffhrd v. Hub- ble, Mich. Term, 2 Vic. FENCE VIEWERS. Atfa7rl.'] — On the question of tlie sufficiency of a fence according to township regulations where, cattle are distrained damage feasant, the award of fence viewers is conclusive. Strf/'- man v. Wasley, Easter Term, 4 Vic. FERRY. Case for distiirhaiice — Eridrncr.} — 1. In an action on tiic case for dis- turbing plaintiff's ferry, it is not neces- sary to prove that tlie defendant either received or claimed ;iny hire or ])ny- ment. Burford v. Oilier, Dra. Rop. S. Power of aorentmciit to gra?it, a right of f'rnj on rivers srparathiis Canada from the IJ/ii/rd Stales.'] — 2. The government oi" this country has power to grant a riijht of feiry on rivers which form the division line be- tween Canada and the United States, and a person to whom such a right is granted, may maintain an action against any one who disturbs his i'erry, on tiie waters over which the British govern- ment has jurisdiction. Kirby v. Levels et al., Mich. Term, 5 Vic. ' Proof of right.']— 3. A letter from the governor's secretary, authorizing a person in the name of the government to take possession of a ferry, is not sufficient to establish ids right to the ferry, so as to enable him to maintain an action for its disturbance. Jonesy. Fraser, Trin. Term, 5 & 6 Vic. [Reputation is evidence of a right to ferry. Pirn V. Cureli, vi. M. & W. 234. J Parties to sue for disturbance,] — 4. If, in an action lor the disturbance of a ferry it be shewn that the ferry is under the management of a third per- son, who receives the ferriage for his own benefit by agreement with the jilaintilV, the plaintiff cannot recover. lb. Right to use private l)oats tcithin the limits of a ferry.] — 5. The pro- vincial act, 9 Vic. ch. 9, sec. 1, as well as the common law, authorizes a person to use his own boat within the limits of a ferry, in the pursuit of his business or pleasure, freely and with- out a:iy necessily of shewing the par- ticular motives or occasions he may have for allowing any individual to to pass in his boat, provided such person be not a traveller, and provided nothing 1)0 charged for carrying. Ives ct al. v. Cahin, iii. U. C. R. •iG-i. Parties to sue for distio'bance.] — (). The Crown grants a right of ferry to A., wiio leases by writing not under seal to B. — C. disturbs the right of lorry, and B. brings an action on the case against C. for such disturbance ; hut held, that the plaintiff B. must be non-suited, the right to sue being in A. the grantee of the franchise, and not in B., who, if he be interfered with, must look to A., and not to C Hig- gins v. Hogan, vii. U. C. R. 410. FIELD NOTES. Sec EjectiMent, VIII. 22. FIERI FACIAS. See Action, 3. — Amendment, I. 1, 4, 7. — ExECUTfON, 3, 8, 11, etseq. False Return. — Irregularity, 1, 4. — Sheriff's Sale, 2, 11, 12. S14 FIERI FACIAS. FILING PAPERS. M.fi. fa, laml.l — 1. An alias fi. fa. may issue against lands and tene- ments, returnable at such a distance of time as toallovv thesiierill'to adver- tise, &c. Nickall V. Crawfonl, Tay. U. C. R. 376. Fi. fa. against goods of discharged prisoner.'] — 2. A li. la. may issue against the defendant's goods, although he may be discharged from prison for not having been regularly charged in execution. Dorma/i v. Raivson, Tay. U. C. R. 376. Rcceijit hy flaintiff for dcht on. mis- information of deputy sheriff.'] — 3. Where, with a view of giving the de- fendant time, the plaintiff had, upon the misinformation of the deputy sher- iff, given a receipt for the debt as the only proper mode of staying the exe- cution, and which receipt the sherifl' had stated in the return of the writ of fi. fa. — the Court ordered an alias to issue. Hennerlcy v. Goulds Tay. U. C. R. 182. Fi.fa. lands tested after death of debtor.] — i. A writ of fi. fa. against lands, bearing teste after the death of the defendant, is void. McCarthy v. Low, ii. O. S. 353. Tested ill life-time of debtor, but executed after death.] — 5. But if the writ of fi. fa. be tested in the life-time of the debtor, it may be taken out and executed after his death. Doc dcm. Hdgerman v. Strong ct al., iv. U. C . R. 510. * Fi. fa. Ia7tds before fi. fa. goods — Sale.] — 6. It is irregular to issue a fieri facias against lands, until after the execution against goods has been re- turned, but as it is onlyian irregularity, a purchaser at sheriff's sale under the writ against lands cannot be affected by it. Doe dcm. Spal/brd v. Broiot et al., iii. O. S. 92. Against testator''s lands, on retnrn of nulla bona against goods.] — 7. A judgment against an executor to re- cover de bonis testatoris, will warrant an execution against the testator's lands, on the return of nulla bona niiainst goods. Doc don. Jessup v. Uartlet, iii. O. S. 206. Reduction of levy.] — 8. The Court will not interfere to reduce the sum indorseil to levy on a fi. fa. on a strict legal ground, unless the defendant has an equitable ground to sustain his ap- plication. Maitland ct id. v. Sccord, Dra.Rep.4.G9. Re/nrn.] — 9. It is not improper for a sheriiV to return to a writ of fieri fa- cias that he has made the money and jM/d it mer to the plaintiffs attor- ney, the words in Italics being mere surplui'age. Dnijlc v. Bcrgin, Trin. Term, 1 k, 2 Vic. When duplicate alloiced.] — 10. An original writ of fieri facias, with the sheriffs return thereon, having been lost, the plaintiff was allowed to issue a duplicate, to obtain a return for war- ranting an alias. McJuren v. Sto?ie- burnc, Trin. Term, 7 Win. IV. Direction of writ.] — 11. A writ of fi. fa. directed to no one is void, and cannot be amended. Wood ct ul. v. Campbell, \n.\}.C.'S..2ii'i. Priority.] — 12. A fieri facias, at the suit of an execution creditor, placed in the sheriff's hands before a commission of bankruptcy against the debtor was sealed, but on the same day on which it was completed and delivered to the sheriff, has the priority over the com- mission. Bcckman v. Jarvis, iii. U. C. R. 280. [For the estates, properties and interests which may or may not be sold under a fi. ia., see ExKruTiON, 3, 11, et seq., with the note to that title.] FILING PAPERS. See Appearance, 2, 10. — Bau,, II. 17. — Bankrupt etc., 14. — Prac- tice, I. 6, 7,8 J III. 3, 4<. — Simili- ter, 2. FIXTURES. FORCIBLE ENTRY. 215 FINAL JUDGMENT. Sec Jl'DGMENT. FINAL PROCESS. See Caimas Ai) Satisfaciendum. — JElegit. — Escape, 15. — Execu- tion, pnssim. — Finiii Facias. — Habeke facias Possessioaeji. — Venditioni Exponas. FIRE. Sec Case (Action on the), 10. — Insurance, passim. — Navigation, • 1, 2. — Recoud (Nisi Piuus), 4. — SlIEUlFF, V. 1-i. FIRE ARMS (SEIZURE OF). Sfc Indemnity Act, 2. FISHERY. The Crown cannot grant an exclu- sive right of fishery in navigable waters in this pi\)vincc. Mojfalt ct al. v. Rod'hj, Mich. Term, 2 Vic. connected to the foundation by mortar, is a fixture, and being a fixture it be- longs to the owner of the soil, and when wrongfully severed, it becomes a chattel; and the defendants, who had at first removed it from the land into the highway, and afterwards took it away, committed a trespass in taking the plaintilV's (ihe owner of the soil) goods. Gasco V. Marshall ct al., vii. U. C. R. 193. [See Trespass, I. 9.] What is a fixture.'] — 3. An engine fastened into and bolted upon a wooden frame, which was not merely laid on the ground but was let into it, the earth being displaced to let in the beams or timbers which supported or formed part of the platform, is a fixture, and not a chattel for which trover might be brought, and it is no less a fixture because it could be taken down and removed without defacing or re- moving any part of the walls of the building within which the wooden frame is situate. Oates v. Cameron, vii. U. C. R. 228. FIXTURES. Sec Covenant, 11(2), 5. — Trover, I. 7, 13. Meaning nf the tenn.'\ — 1. Where a declaration in trespass was for " fix- lures," wheels, mill-stones and ma- chinery, general damages having been assessed on the whole declaration, it was held, on motion in arrest of judg- ment, that the word " fixtures" would not necessarily be taken to mean things attached to the froelioid. Meyers v. Marsh, ii. U. C. R. 18:"). [Ace. Sheen v. Ricldc, v. M. & W. 75.] What ?.v a /i.iinre — Whe?t severed, beconu's achnitrl.'] — 2. A building put up by a vendee of land in possession, under a contract to purchase, which is found by a juiy to rest upon a founda- tion in some parts let into the soil, and FLOUR. Liahilit'i/ of seller when flour not branded — Jurisdiction of magistrates — Informer.'] — The seller of flour in barrels not marked or branded, under 4- y B., and the action was brought aiininst him on an agreement relating to lands. Kil- Inrn v. Forester, Dra. Rep. S'i^. Offer in uriting — Acceptance also in uriting.] — 5. An oiler in writing to j.urchase lands, stating terms, and an acceptance of that ofl'er also in writing, is a sufficient contract in writ- ing respecting an interest in lands under the statute. Kerhy v. Luurencef i. U. C. R. 181. Verbal agreement for a lease- Breach.'] — (). Where the defendant had agreed verbally to let the plaintiff a certain shop and premises for a year, to commence at a future day, and on the day the dcicndant put the plaintiff into part of the demised premises, but could not give him the possession of the residue, in consequence of which the plaintill' suffered loss, and brought an action against the defendant on the agreement : Held, that he was entitled to recover, as the defendant could not successfully object that the agreement was void under the Statute of Frauds. Clark v. Serricks, ii. U. C. R. 535. II. Section 10. (Trust estates). See Execution, 17, 21. III. Section 17. (Sales of chattels). Sec Auction, 1, 3, 8, 9. — Pleading, 1.8. Sale of u-heat ready for harvest — Delivery — Payment.] — 1. Qvcerc: If the sale by asherlff of acrop of wheat ready for harvest be not the sale of an interest in lands — still, to satisfy the statute and make the sale legal, should there not be proof of the delivery of the wheat, or payment of the price ? Haydon v. Crawford^ iii. O. S. 583. .-' 220 FRAUDULENT DEEDS. FRAUDULENT DEEDS. Sale of plate, value 101. — Accep- tance and delivery. '\ — 2. Wlierc A. purchased plato of B. of the value of 70/. and dej^irod lilm to have his crest engraved on it, and al'terwards to for- ward it to liis i)laec of residence, bui paid no part of tiie ))urcliase money nor any earnest, and B. having obeyed his orders, hrou;iht an action agtiinst him for the price, A. havinir refused lo receive the plate, suyinsr liiat it was not the Same as he iiad purchased : Held, that A.'s directions as to tiie engraving of the cn'st and forwardiiiL! to his place of re.-idenee, constituted a sufficient acceptance and ilclivery to take the case out of the I7th s(>clion of the Statute of Frauds. Walker v. Bmilton, iii. 0. S. SaS. Agreeinrjit for sale of (fooih — De- livery of part — Refusal (n rirrirr residue — Aclio/iforjiricc.^—'^.Whcrv in an action for goods sold and delivered the plaintifl'shewed a contract between the defendant iu\d himself for the sale purchase of 21 sticks of tind)er at ?'. 10.«. per thousand feet, and it was proved that the timber had been de- livered at the placu appointeil by the defendant, where the airents of the plaintiff and defendant had measured eight of the sticks, the value of which was paid into court, and the defendanl n .1 diated the rest: JFeld, that there Wac no acceptance of the residue, by which the plaintiflTcouJd recover as for goods sold, nor was there any biiidinu agreement within the statute. Grocer V. Cameron, Mich. Term, 5 Vic. FRAUDULENT ASSIGNMENT. See FRAUDtii,F,NT Deeds and As- signments, passim. FRAUDULENT DEEDS AND ASSIGN.MENTS. See Bankrupt etc., 11, 17. — Deed, IV. 1.— Ejectment, VIII. If).— New Trial, L S), 16 ; VL 5. Who entitled to impeach.'] — 1. A deed fraudulent as to creditors, cannot be impeaclie'l by the heir of the party who conunltted the fraud, or by a stranger acting nominally for himself but really for the heir. Doe dem. Diiityw VanLnii'jIinet, Trin Term, () i^c 7 ^Vm. IV. [Sco fiiillior, the iioto to case 11, infra.] Assi'^nment,aithin sltititteo Wm. IV. (7/. 3.] — 2. The assiL'ument of a lease l)y the lessee to a trust(>e, \'m a bona fide creditor of the assiL'nor, with the intention of thereby evading the creditors of the cestui (jue trust, is not a tVaudulent assi^'uiniMit within the provincial statute f) Wm. IV. ch. 3, sec. S. Dordrin. Bi:sgardv. Millard, Easter Term, 3 Vic. Ass/rinn/c/it VKide innnediatelybe- fiirr rrrciilifi/is irithimt change of]ms- srfiaion J] — o. Where a merchant, just before several executions were issued auainst iiis property, nssianed it to trustees for the benefit of his creditors, with the most minuti" accuracy in the tlescription of every article, delivering to the agent of the trustees one article in the name of all, and then took down his name from over his shop door, but remained with his clerks in the pos- session of the goods, selling them as if they were his own, but accounting to the trustees for the proceeds, and the property was taken under executions by the sheiilV as if it were still his: ITi/d, on trespass brought by the trus- tees aicainst the sherilV \\)Y the seizure, the jury having ne<;atived their posses- sion, that a verdict for liie defendant was correct. Ar?iistrnn^ et al. v. Moodie, Trin. Term, 7 Vic. Made after ft. fa. rrtiirned.'\ — 4t. An assiLiMmcnt of goods made by a debtor, alter a writ of li. fa. ^oods has been returmvl " nulla bona,"' and after the return dav is j)ast, is valid. Pnl- fnrh- et al. v.'Praser, iv. U.C.R. 523. (I'dOfls rcti/rnedio dehtorby sheriff ^s ventlee — Hidm'quent seizure.'] — b. Where a debtor in embarrassed cir- FRAUDUI^EXT DEEDS. FRAUDULENT DEEDS. 221 cumstances executed a cognovit in fa- vor of one of his creditors, without that creditor's kriowlodjio. and tlie dei)tor's household fiirnit\ire was sold upon an execution, and the creditor becanu- the purchaser, and imini'iliatoly leased the furniture to the dohtor, at a rentnl amountin!; only to the interest of tlie money for which the furniture had been purchased. uivin'f the dehtor power to retain it as Ioml' as he pleased, and not ninking any provisions for de- terioration in it ; and the same furniture was afterwards seized in exticutioii :it the suit of another creditor ; and onllie claim of the first creditor, an issue was directed under the Jnterpleadcr Act, whicli was found in tiivorofthe second execution creditor, on the sroutid thai, the sale in execution to the first credi- tor had been collusive — the Court re- fused to grant a new trial on aflidiivit. Sen-OS V. Tohoi vt plaintitV was fraudulent as against creditors although the jury found other- wise, a new trial was granted. Doc drill,, MrRac V. Proiidfoot, Mich. Term, ti Vic. [A ili'i'd friiiidiileiit iigninst creditors is also fruudidcnt niid void iiitainst tlin assi;;neps of tlic |wi ly coiivoyiiiu; "ii Ids insolvency, as the Mssiunii'.s reproriit the rrcditnrs. Doe (km. (irimxb;! v. Hall. x'\. M. & W. iy'.il. — A jiid^- inenl likewise riiiudnlent iiyiiiiist creditors is fiiMidnlerit iii,Miii>t tlie sliorifF wlio represents :i eredilnr npim ii siilisequent jud^rmcnt. In- rinj V. MiisiKiij, xi. M. & W.'267.] Vo/initary deed roidasainst svhsC' quent deed lij slierij)'.] — 12. A debtor 223 FRAUDULENT DEEDS. GAMING. after judgment and execution against I his goods, having coiiveved certain ; lands without consideration, wliich lie i held as the legal owner under a deed ' containing no declaration ot' trust, and | the same land^ having been sold un- • der an execution subseciueiilly issueil ' against his lands, the Court held that ; lhedeed,beingavo]untary conveyance, I was fravidulent and void ngjiinst the sheriff's vendee. Doc ilcni. Steel v. McGill, Mich. Term, (i Vic. 13. A deed purporting to be a deed of bargain and sale, but containing no statement of consideration, pecuniary or otherwise, and no sufficient proof of consideration given aliunde, held void in law against a bona fide purchaser for value at sherilf's sale, under judg- ment and execution, although the jury had negatived any fraud in fact. Dor dem. Prouclfoot v. McCrae, Easter Term, 7 Vic. Void afiai/ist suhsequnit purchaser for vcduc^ — 11*. A deed made by one brother to another in consideration of natural love and affection, is void against a subsecpient i)iirch!iser from the grantor for a valuable consideration. Doe dem. Phi/ljMt v. BhincJiJichl, i. U. C. R. 350. Over-due morfgas;es of pergonal property void as aiiainsi crrdifors.^ — 15. The mortgagee of personal pro- perty who suffers the mortgtiLfor to re- main in possession and make use of the property as his own long after the time limited for the payment of the mortgage money has exi)irod, loses all right to the property as iigainst the creditors of the mortgagor. S/rcl v. Hamilton, Trin. Term, I A: 2 Vic. [Mortpages of personal pioiiuily must lie filed in the county court and rt'iii'wcil yoailv. See statute 12 Vic. ch. 74, umemlud by 13'& 14 Vic. ch. 62.] Assignment ofpropcrti/ sidtsrriuoit to several executions, ami ])rii)r to othersi\ — 1(). Wiiere a debtor nssiiined to a creditor property which w;is seized by the sheriff on several writs of exe- cution, which came into his hands on the day on which the assignment was made, and those writs were subse- (juently satisfied by the sale of other jiropeity oftiie debtor, but before they were satisfied, and a fortnight after the assignment, an attachment against the debtor's jiroperty came also into the hands of the sheriff: Held, that the l)roperty assigned was secured to the assignee nEainst the attachment, al- though it had been liable to the pre- ceding executions. Hooker et al. v. Jariis, Trin. Term, 5 & G Vic. FREDERIC KSBURGH. Where it was shewn that a survey made in the township of Fredericks- burgh under 7 Geo. IV. ch. 16, was not made as nearly as could be ascer- tained in accordance with the original survey, according to the provisions of that act, it was held that such sur- vey was invalid. Doe dem. Clappy. Huffman, Mich. Term, b Vic. FREEDOM FROM INCUMBRAN- CES (COVENANT FOR). See Covenant, 11(2), 1, 2, f), 8. FREIGHT. See Caukier, passim. — Demurrage, o FURTHER ASSURANCE (COVE- NANT FOR). See Covenant, I. 1,2,4; 11(2), 9. GAMING. See B1M.IAIU) Tables. — Bills EXCMAXCE KTC, VI. 1. OK Il/rg(d u-agrrs—\\] Uco. II. ch. 19.] — 1. A. betted B. 7;')/. to ;")()/. upon a horse race, and deposited the money in the hand of C, a stako.holder. Thoy OAMINO. GAOLER. did not own citlier oftlie horses which were to run, nor was there any other match or stake for which the horses were to run. A. lost, and disputiii!.' it, gave C. notice not to pay over tlie money to B., but C. did so: IIM, that A. could recover hack his de- posit from C. in an action for money htid and received, upon the ground thai the waiter was illeiial, heiii!:; contrary to the statute 13 Geo. 1[. ch. 19. Sheldon V. L(iiv, iii. O. S. b5. [Money lent for the purpose of gaminir can- not be recovered bade. — McKiitnell v. Rubin- son, iii. M. & \V. Kit.] Money had and received aixainst treasurer of races for the jiarse.'] — 2. Where, accordinir to the rule of a race for a purse of 100 iruineas, the decision of the stewards appointeil to superintend the race was to he final on all questions respecting the winning or losing of the race, and the plaintiir's horse was the winner of the first heat and came in first in the second, but in consequence of allegeJ foul riding, was adjudged by the stewanisto have been distanced, and another horse was declared the winner : llehl, that the plaintilV could not maintain an action for money had and received against the treasurer of the race who iiad not paid over the purse, on the ground that a majority of the stewards had not concurred in the decision against his horse, and on proof that thcie had in fact been no foul riding, lie having assented to the decision of the said stewards on the first heat, and their decision according to the rule being in all cases final. Goriuim v. liuuUon, Easter Term, f) Vic. Liidiilitij of pniprietor of race coarse for parscl^ — '3. Tiie proprietor of a race course is not responsible for the purse run for, unless upon clear proof of an express tindertaking to that elVect. Gales v. Tinning, iii. U. C. R. 295. 4<. If the express undertaking can be proved, he would bu responsible for the purse. Gates v. Tinning, v. U. C. R. 540. Riaht of winner in his entrance inonei/ on, not he in g paid the ^)Mrsc.] — 5. A winner at a horse race has no light to recover back his entrance money because the purse has not been paid over to him. Gates v. Tinning^ iii. U. C. R. 295. Deelaralion under 10 i^ 11 Wm, III.] — I). A declaration under 10 & 1 1 Win. III. for playing at a lottery is insuHicient if it state the charge for playing at a game " called" a lottery, without I'urther specification. Clarke V. Donelly, Trin. Term, 5 & 6 Vic. Lot/erics of horses tj-c. — 12 Geo. II. rh. 2S.] — 7. The provisions of 12 (Jeo. II. th. 28, supersede the pro- visions of 10 iV; 11 Win. III. with respect to lotteries of horses, carriages and other personal chattels. lb. GAOL. See District Council, 3. — Escape, 24. — QuARTKR Sessions, 3. GAOLER. See Escape, 1. Costs to gaoler for bringing up prisoner under liabeas corpus.^ — 1. The court determined it not uurea- soiial)le for a gaoler to charge Qd, per mile, both going and returning with a prisoner by habeas corpus. Robin- son V. Hall, Tay. U. C. R. 664. Liabiliti/, when jn'oceeditigs of jus- tices irregular in' (dtogetlicr iywVZ.]— - 2. Where the justices iiave a general jurisdiction over the subject matter upon whicii they have issued a war- rant of commitment to the gaoler, though their proceedings be erroneous, the gaoler is not liable to an action. Seeiis: If the proceedings be wholly voiil. Fcrgusson v. Adams, v. U. C. R. 194. 224 GAS COMPANIES. GAS COMPANIES. 3. Quarc: Whercamnwistratcliag, under the Summary PuiiisluTieiit Art, committed a party micoiKiitionally when his commitment sliotild liavo been conditional, u])on his not payiiijj; a fine, can it be said tliat lie has so far acted within his jurisdiction as to make his warrant a justification to the gaoler, who obeyed it ? lb. Delivery of icarmnt. — W/irn origi- nal to be slicwn.^ — I. Seniblc: That under the 6th section of the act 24 Geo. II. cli. •i-i. a cojiy of the war- rant, if delivered by the itaoler without shewing the orisjinal, and no objection made, will be sullicieiit. Sciiib/r, n/so : That if the original be deinaiulod, its production will be uood, though shewn after six days. lb. GAOL LLMITS. See Limits. GAS COiMPANIES. Sec Pleading, II. 3(), Liability for )niis(i/>cc — D//c care.] —1. Quare: Can the Gas Company of the City of Toronto, iiinler their act of incorporation and their lease fioiii the City of Toronto, cany on their work of manufacturing gas, iVc, without liii- bility for nuisances injurious to private rights, so long as they occasion no iiui- j sance which they could, by due care.! have avoided ? I Vn/so/i v. G'as Coin- 1 pany, v. U. C. R. 2()'2. I Liahililijof s/iir/J/ol/Irrs. inidcr 1 1 Yic. cit. l-t, to ptuj viilh DliiiJe liif thr secretary of the coDijiaiiy in pursiKinrr merely of a roio/iitioii (tdoptnl bi/ tlic directors before liirptoisiiii: if/lir ar/.'j —2. Thegasconiiiany of Toronto sued Btockholders A., H., C. and D., in sepu- rate actions of debt, t'ounded iijion the statute 11 Vic. cli. I4<. This statute relates only to such actions as iiiiy;lit be brought for the recovery of money, which "should from time to time be called for by the directors of the said company, that is, of the company in- corporated i)y the statute, vnder and by i-irliie of tlie poircr a ttd directions iftiidt act.'''' It was proved in evi- dence at the trial that the secretary of file company, actinu; under a rewla- lioii merely of the directors, passed b(f(irr the statute 11 Vic. ch. 14< came into l()rce, notified the stockholders thiit a call of ten per cent, would be made on the first of May, June, July and August: IJe/d, that, as upon this e\idence, these calls could not be said to be " made by the dirrrtors of the ennipany, actinir iiiidrr and by cirtue if the potwr and direction of that uct^^ the company could not sustain their action upon the statute. Semhle: That it is not a resolution of die direc- tors to make a call upon the stock- holders, which constituteil the t'«/^, but the notice of advertisement of the call itself. Scinble: That where an act says " that no instiilment shall be called for, excejit (fftcr the lapse ol one cal- endar month I'rom the time when the last iiistahiicnt was called for:" calls nuide for first of May, June, July and Auffust, would be illegally made. Qiiarc /.'\ — 3. An action for goods bargained and sold cannot be mainlamed against a person wiio has become responsible for the payment of goods delivered to a third party. Mc- Kcnzic et al. v. McBcan, iv. O. S. 137. Action barred by a7i evasion of the revenue laii's.] — 4- Where merchants residing in the United States sold goods to the defendant and combined with him in furnishing false invoices to evade the revenue laws of this pro- vince in respect of the amount of du- ties to be paid on the importation of those goods : Held, that the plaintiffs could not recover their value from the detendant in this country. Mullen et al. V. Kerr, JNIich. Term, 5 Vic. [This case was aftfrwards upheld in Driggt V. IVaite, Hil. Term, 6 Vic] Verbal agreement to jmrchase land -Payment in cattle and money-Land sold to anotlier ^;r>-.w;t.] — 5. Where the plaintiff had agreed verbally with the defendant to purchase a piece of land from him, and having been let into possession by him, had made pay. nients on account of the purchase money, in money and cattle, and the defendant afterwards sold the land to another person, promising to repay to the plaintiff what he had received from GRANT. GUARANTEE. 227 him : Held, that on his refusing after- wards to do so, the plaintiff could re- cover the amount from him in an action for goods sold and delivered, anil for money paid. lliU v. Stanton, ii. U. C. R. 149. Certain price itvi.st he proved."] — 6. To support the common count for goods bargained and sold, the plaintiff must prove a certain price agreed up- on ; when this cannot be done, the declaration should contain a special count for not accepting. Ehidue v. Ricluirdson, iii. U. C. R. 149, Agreement for mh of goods — Part j sold — Pari midaid and not returned as agreed.] — 7. Received of six boxes of axes, to be sold for him ] on commission, and when sold, I agree GRANTEE OF THE CROWN. See Crown Grant, passim. — Eject- ment, I. (), 26. — Estoppel, 1, 2, 3. — Intrusion. GROWING TIMBER. See Arrest of Judgment, 11.— Deed, III. 5, 6.— » Trespass, I. 14, 17. ! GUARANTEE. I See Bills of Exchange etc., II. 10; I III. 4. — Contract, 10. — Goods Sold, 3. — Money had and recei- ved, 11. — Principal AND Surety. Averment of considaation — Proof.'] — 1. Declaration in assumpsit on a ..I- (-.41, „„ riuofiu^ guarantee to the following effect: — to account to him lor those soul at the f„ ... i i i j " Please credit A. one hundred pounds, ble ft 1, . .u„ „„™„:„ ," 1 lease uicuii .f\. one iiuiiurcu puuii of , HORS£. After dcdimtimi subsequent con- veyance void.'] — (i. Where A. has ex- pressly dedicaleil by deed certain Irals for the i)urposes of a public road, u..d the public have adopted such dedica- tion by user, A.'s suijsequeiit con- veyance of the land to B. cannot con- trol the prior dedication. Ma/loch v. Anderson, iv. U. C. K. -iSl. Dedication by tenant with, land- lord's aajiiirscence.] — 7. A tenant ibr years cannot, by ac(iuiescence or otiier- wise, dedicate a j)ortion of the lease- hold for a public hiL'hway so as to bind the reversioner. llvi;ina v. Wismer, vi. U. C. R. 293. 8. Scmb/e : That where the rever. sion conies at once to the tenant, with- out any interval of time, his accjuies- cence in the dedication while a tenant will not bind him in the absence of evidence of acquiescence in the dedi- cation on the part of his landlord. lb. 9. Where therefore a tenant under the Crown had been convicted upon an indictment for taking exclusive pos- session of the road after he had ob- tained his patent — the Court refused to give judgment upon the conviction until evidence had been given to shew the Crown a consenting party to the dedication. lb. HUSBAND AND WIFE. 231 HIRING AND SERVICE. See Mastkr and Servant. HOLIDAYS. See Bills of Exchange etc., II. l*. Practice, III. 7. — Sunday. HORSE. See Bailment, 1, 2, 3.- -BlLLS OF Exchange etc., VII. 13. Stolen horse sold at auction, hut not in market overt, retaken In/ legal owner.'] — Where a horse was stolen from the plaintiflf, and bought by the defendant at public auction, but not in market overt, and the plaintiff after- wards seeing the horse took possession of it, and the defendant immediately retook it: lle/d, that the plaintiff had a ri^lit to retake it, no property having passed to the defendant by the sale, and that although it was in his posses- sion only for a moment, yet the pro- j)erty revested in him, and he could maintain trespass against the defendant tor the retaking ; and that, as the thief was unknown, it was not necessary to shew a prosecution to conviction. Bowman v. Yielding et al,, Mich. Term, 3 Vic. |.If ihc seller of a stolen horse in market overt be eiiterei! in the toll-book liy a feigned name, the property is not thereby chantjed. Gibhs' case, Owen, 27 ; 1 Leon, 158, S. 0. — Contra — Wikes v. Moore/outs, Cro. Eliz. 86.] HORSE RACE. See Gaming, 1, 2, 3, 4<, .5. HOUSE OF ASSEMBLY. Sec Parliament. HUSBAND AND WIFE. See Arbitration and Award, 1.7; VI(2), 8. — Arrest of Judgme?:), 6, 13. — Bills of Exchange etc., IV. 7, 18. — BiNBRooK (Township of). — Deed, II. 4, to 10, inclusive. Dower. — Ejectment, II. 11 ; III. 8; VIII. 10.— Executor etc., m. 1. — Limitations (Statute op), IV. 11.— New Trial, XI. 4.— Pleading, II. 37. — Variance, 4. Necessaries — Recognition of ivife by husband.] — 1. A recognition by a party that A. is his wife is sufficient to charge him with necessaries, al- though they do not cohabit, having in fact separated, and although she may not strict! juris be his wife. Haivley V. Hanit Tay. U. C. R. 529. I 1 •^1 S32 HUSBAND AND WIFE. ILLEOALITT. Lialnlity of Imsband for poods ftirnislicd to irifr ifithnat his hnow- Icdisc.^ — 2. A lui!led gitnds.'] — 1 . Held, that money paid on ii promissorj- note given for the value of goods which were to have been smujigled into this province, could not be recovered back, altliough the goods had never been delivered. Ans;uish v. House, Trin. Term, 1 k. 2 Vic. [See Goods Sold, 4.] Promismn/ iiol.cs — Consideration, smugsird goods.'] — 2. Where in an action upon several promissory notes the defendant proved that they had been given by him for the price of tea which had been smuggled for him by the plaintifl'.and the jury were directed to find for the defendant if they iie- lieved that such was the consideration given, and they found a verdict for the plaintiff for the amount of only one of the notes — the Court refused to grant the defendant a rule nisi for a new trial. Brcbce v. Armstrong, Hil. Term, 6 Vic. IMPARLANCE. See Information, 8. — ♦ — IMPOUNDING CATTLE. See Master and Servant, 3.- Trespass, IL 16, 17. IMPRISONMENT. See False Imprisonment. IMPROVEMENTS. See Covenant, 11(2), 13. — ♦— INCIPITUR. See Interlocutorv Judgment, 5. — Judgment as in case of Non- 8k';T, I. 6. 2 G INCOMPETENCY OF WIT- NESSES. See Witness, passim. INCONSISTENCY IN PLEADING Sec Pleading, VII. INCONSISTENT DEFENCES. See Ejectment, I. 20, 21 ; VIII. 8. INDEMNITY ACT. Staying proceedings."] — 1. Pro- ceedings were stayed with double costs under the Indemnity Act, 1 Vic. ch. 12, after judgment by default and as- sessment of damages. Hyde v. Anger, Easter Term. 2 Vic. Justification for seizing fire arms^ — 2. In trespass for seizing fire arms, a justification by the defendant as an alderman of the City of Toronto, and claiming protection under the Indem- nity Act, 1 Vic. ch. 12, was held an answer to the action, although the fire arms had never been returned. Lock- hart V. Dixon, Hil. Term, 3 Vic. INDEMNITY BOND. Sec Bond, II. 21. — Interpleader, 5.— Sheriff, 1. 14 ; IV. 2. Construction.] — 1. A party giving a bond to hold harmless in any actions that may be brought, and to pay all costs and charges thereby accruing, is bound to indemnify, as well against the legal result of any such actions, as for the trouble and expense occasioned to the party to be indemnified by the bringing of any such actions. Ham- ilton v. Davis et al., i. U. C. R. 176. Bond to sheriff- — Duty and liability of obligors.] — 2. Upon an indemnity bond to the sheriff, the obligors must save the sheriff harmless, by taking the 234 INDEMNITY BOND. INDEMNITY BOND. defence of any action against him upon themselves ; and judgment figainrst the sherilV is conchisive against the obli- gors. T/to/ims V. Joknstvn et al., iv. U. C. R. 110. [Also, see cases 13 and 14, infra.] 3. Notice to the obligors by tlie shcrilT of his being sued is not neces- sary, to give hiiP a right of action against them. It). 4. Construction of an indemnity bond, as to whether it made the obli- gor liable for old debts, or only for new advances from the date of the bond. — See Wright v. Be?ison, vi. U. C. R. 131. Action — Pica of de injuria ] — .'). In an action brought on a bond of in- demnity, a defendant may pleail that the payment made by the obligee, was without necessity, and made in his own wrong. Ilitmilton v. Davis ct al., i. U. C. R. 176. Ixmc of de injuria — Onus j)roba7t- dii] — 6. Where in debt on an indem- nity bond the defendant pleaded that if tlie plaintiff was damnified she was damnified oflierown wrong, and the plaiiitilf took issue on the plea, and did not assign any breach ; and at the trial, the plainlilV not oflering any evidence to prove that she was damnified, was non-suited, and on a motion for a new trial, on the Kround that the issue was on the defendants, and that they should have begun, the non-suit was held to be rifflit. Hanulton v. Davis ct al., ii. U. C. R. 137. P/ca of fraud ^-r. — Eridrncr.'\ — 7. Where in debt on a bond, conditioned to save the plaintiff harmless from oil damages or suits, either at law or in equity, regarding a certain sum of money, stated to have l)een advanced by one A. to the plaintilf, through the agency of B., and whii;h said sum ofmonev was also claimed to have wrong ; and the plaintiff replied, by set- ting out a breach of the recovery of judgment and execution against him by C.,for the said sum of money; and the defendant rejoined, that the judg- ment was recovered by the fraud and covin of tlie plaintiff, upon which issue was joined; and on the trial, it was shewn that the recovery at the suit of C. had been on admissions made by the plaiatiff after the execution of the indemnity bond : Held, that such evi- dence was s\ -1//. recovered against him in the district court, and so damnified — the replication was held good on general demurrer, the Court holding that the allegations were sutll- cienfly ceitain, that the seizure had been made by the testator on the de- fendant's writ and before the return day, !*'"' lat the district court must be presunuM not to have exceeded its jurisdiction, without any averment to that effect. Hamiltniix. B'lc Fail and, Easter Term, 3 Vic. Intercut hcynml amount of firnaJty ] 10. A plaintiff on a bond of indemni- ty cannot recover interest in the na- ture of damages beyond the amoimt of the penalty of the bond. McMaho/i V. IngrimU, Hil. Term, 5 Vic. Indeinnitij Jmridto a magistrate not neccsmrihj void.'] — 11. A party sus- pected of stealing a horse is brouglit up on a warrant before a magistrate ; he investigates the alleged larceny and dismisses the charge. The suspected individual pretends no right to the horse, and the magistrate, after dismis- sing the charge, restored the horse to its supposed owner, (the party prose- cuting,) but before doing so, takes a bond of indemnity from the owner. In an action brought upon this bond, the defendant pleads that the bond is void, relying upon the general policy of the law, that a magistrate should not take such a bond. The plaintiff demurs to the plea : Ilvld, plea bad, as it does not shew any statute ex- pressly prohibiting bonds of this des- cription, and does not aver any cor- rupt purpose, or undue motive on the part of the magistrate to whom it is given. Ballard v. Pope, iii. U. C. R. 317. Assignment of Itrcaches,'] — 12. Where in debt on bond conditioned to INDEMNITY BOND. 235 ■I save the plaintiff harmless from all demands or suits reiiarding a certain sum of money, and to discliiu<;e all damaires, costs and cliaiires that might be recovered in respect tluMvot", the defendant pleaded non-damiiHu'atus, and the ])laiiitilf assitrned two l)reaches, setting out a judgment for the said sum of money in the condition mentioned, and not specifyinjr any particular sum tor which judgment had been recover- ed : Held, on motion in arrest of judg- ment, that the breaches were suffi- ciently assiirned. rou-ell \. Boulton, iii. U. C. R. 19. Attornies compelled to sign Ixmdof indem)iity to sheriH'.'] — 13. The Court, upon the following paper having been iriven bv them to the sheriff: "Q. B. Wilson et al. v. Hastings. The plaintiff will indemnify the sherifT on selling goods of Hastings under vcn. ex. (Signed), A. k. B. Attornies for plaintiff." Kingston. Feb. 24, 184.7: ordered, upon the application of the slieriff, that the attornies A. 8c B. should enter into by a day named, or procure two sufficient parties to enter into, a bond of indemnity to the sheriff, to be dated the -ith of March 1847, with the usual conditions to indemnify accv-vrdintr to tiie facts as they existed at that date, the parties .Vc. to be ap- proved of by the Master, otherwise that A. & B. should pay to the sheriff the damages &c. (see order in full,) he had sustained by reason of selling Hastings' goods under the writof ven. ex. Corbett v. Smith et aL, vii. U. C. R. 13. Conduct of sheriff cannot he vrgcd as a reamnfar refusing the aliove ap- plication.'] — 14-. The Court also held that the conductof the sheriff affecting his right to recover either in whole or in part on the bond, could not. be urged as a reason for refusing his application to obtain the bond of indemnity, but i.;V..,--| 236 INDORSEMENT. INDORSEMENT. must be left as a matter of defence to, or mitigation of damages in, a suit to be brouglit by the sheriff on the bond. lb. INDIAN LANDS. Form of co)ivicLlon hij commission' crs] — 1. Commissioners appointed under 2 Vic. cii. If) to receive infor- mations and inquire into complaints that may be made to tl.em against any person for illegally possessing himself of the lands mentioned in the statute, must shew upon tlie face of a coiivic- tion by them luider that act that tiie lands of which illegal possession had been taken had been actually occupied and claimed by some trihr. or tribes of Indians, and for the cession of which no agreement had been made with the government. A conviction alleging that the party convicted had unlawfully possessed himself of a portion of tiie Crown lands is bad, as they have no general jurisdiction over such lands. Litt/c et al. v. Keating, Hil. Term, 5 Vic. Evidence of 7wticc.'\ — 2. Scnihlc : That the recital in a warrant by the commissioners under the act, to dis- possess the party convicted, that thirty days' notice hail been given him to remove from the lands, does not afford sulficient evidence tiiat such notice was in fact given. lO. INDICTMENT. See Highway, 1,2. — Water, 4. Cojnj, — A copy of an indictment for high treason may l)e had by the consent of the Attorney General. Rex V. 3IcDoncll, Tay. U. C. R. 409. INDORSEMENT. I. Of Bailable Writs and War- rants. II. Of Bills AND Promissory Notes I. Op Bailable Writs and War- rants. Sec Bail, II. 18. — Escape, 5. 1. A bailable writ must be indorsed with tlie sum sworn to. Armstrong v. Scobc/l, iii. 0. S. 303. 2. Although it be issued by an at- torney in person, still it is necessary that it be so indorsed. Wasldjnrn v. W(dsh, Mich. Term, 3 Wm. IV. 3. The claim must also be indorsed on tile bailiff's warrant, as well as on the writ. Steele v. Lameux, Easier Term, 6 Wm. IV. At. An alias bailable writ, however, issued under the statute, need not be indorsed. Ross el id. v. Bidfmir et le, i. U. C. R. 408 , P C. Jones, J. 9. On an tTnpliciMlon to set asidi3 a bailable writ for want of indorsement of the plaintiff's claim, the dcfeiidaut INFANT. INFORMATION. 237 must shew by affidavit that the cause | had accrued on these shares, and had been received by the defendant. Hall V. Bidwcll, iii. 0. S. 22. Maij sue fordower.'\ — 3. An infant (lemaiuiant muy sue in dower, and if an infant tenant be sued, the parol is not allowed 1o demur. Pliclan v. F/ifhm, Dra. Rep. 398. Mai/ defend an ejectment.'] — 4. An inliuit will be admitted to defend an action of ejectment, as landlord, by guardian. l)oc dem. Sanderson v. line, Trin. Term, 3 iJt 4 Vic. Registry ojuill uhen a devisee.] — 5. Inlancy is not an inevitable diffi- culty, under the fifteenth section of the Registry Act, so as to preclude the necessity of an infant devisee register- ing the will within six months from the death of the devisor, so as to avoid a conveyance by the heir-at-law. Mc- Leod V. Tnmx, Hil. Term, 7 Wm. IV. ;l of action is a debt. Lcgsatt v. Blar montt, Easter Term, 3 Vic. [The rule of court, 3 & 4 Wm. IV. number 3, ordering Ihe iiiilorsemont of a slalrniciit of the amouni of (Ifbt ami costs oil hailalilo writs, warrants, and process, has been rt'sriiided by the rule of Hil. Term, 3 Vic. number 4.] II. Of Bills and Promissory Notes. See Bills of Exchange ktc, IV. — Estoppel, 7. INDUCEMENT. See Libel and Slander, II. 2.- Pleading, VIII. 3. INFANT. See Ejectment, II. 9. — Guardian. Seduction. Deed made In/, irh ether void or void- ahle — Effect of an e/cciinent.] — 1. A deed of bargain and sale made by A. when an infant, is not absolutely void, but voidable by him, either belbre or after he comes of age. The bringing of an action of ejectment by A. to re- gain possession of the land, contrary to his deed, is so complete an avoidance of the deed, that it caimot afterwards be confirmed or set up by any subse- quent deed or act of A. Doe don. Jackson eC al. v. Woodritff'e, vii. U. C. R. 332. Right to maintain assumpsit for INFERIOR COURTS. See District Court. — Division Court. — Foreign Judgment, 13. Judgment, 18. INFORMATION. Sec Customs Acts, 5, 6, Warranto. — Subpcena, 4. Quo 1. A criminal inlbrmation must be signed by the master of the Crown dividnids on shares lehichhad^urrued ' ^^^''^f- Itcginav. C/oo/.s, Mich. Term, to him during 7ninority.'\ — 2. Where 3 \ ic. a father took shares in an association | Criminal information against a (which had been formed to build a magistrate.'] — 2. A criminal informa- steam-boat to be navigated for the joint \ tion against a magistrate was refused, benefit of the proprietors) in the name i where the affidavits on which the mo- of his son, then an intarit, and after- j tion was made were intituled, and wards and during the minority of child, ! more than two terms had elapsed since directed two of tlie siiares to be trans- 1 the act done, no notice having been ferred to the defendant, which was given to the magistrate of the intention done: Held, that the infant could not,i to move, and the motion having been on attaining his majority, maintain as-j made too late to allow him to answer sumpsit for money had and received, ! the same term. Busteed v. Scholfield, to recover dividends of profits which | Mich. Term, 5 Wm. IV. !.'■» 238 INFORMATION. INNKEEPER. P''iso/icr^s ansurrsJ] — 9. Atlidavits may be re- ceived contradictory of the answers of a prisoner in execution, to interroga- tories filed to deprive him of the weekly allowance, and in answer to an appli- cation for his discharge ; and the Court will not discharge the prisoner, unless they are satisfied that he has no means of support, and has not fraudulently secreted or conveyed, &:c. Montgo?7i- ery v. Robiiiet, ii. 0. S. 506. Refusal to discharge 'prisoner oti death of jiliti'^tiJJ'.^ — 10. The Court refused to discharge a defendant in execution, where the plaintilTdied, and the weekly allowance was tendered by a person who had usually paid it, al- though no administration had been granted. Beard v. Orr, Dra. Rep. 253. Affidavit to obtain rvecL7y allme- atice.'\ — 11. An atfidavit by a defen- dant in close custody, that he is not worth five pounds besides the neces- sary wearing apparel, is suflilcient to obtain a rule for the weekly allowance. Malone v. Handy, Hil. Term, 6 Wm. IV. WIten defendant in custody for less than 1001. , entitled to his disc/uirge,] — 12. A defendant in custody in exe- cution for a sum not exceeding 100^., is not entitled to his discharge under 5 Wm. IV. ch. 3, unless he has been six months in confinement in gaol. Denluim v. Talbot ^ Hil. Term, 6 Wm. IV. Excuses for non-payment of allow- ance.^ — 13. It is not a sulficient ex- cuse for the non-payment of the weekly allowance that the defendant is in cus- tody in other suits, on which he re- ceives the allowance, or that a co-de- fendant has put in bail after the order for the weekly allowance was granted. Truscott ct al. v. Walsh ct al., Hil. Term, 6 Wm. IV. Relief, under 5 Wm. IW. ch. 3.]— 1-i. An insolvent debtor charged in execution in case for seduction, is enti- tled to relief under 5 Wm. IV. ch. 3. Perldns v. G'Connolly, Hil. Term, 6 Wm. IV. Waiver of dijections to defendant's ansicers.'] — 1 5. Payment of the weekly allowance, after answers have been filed to the interrogatories put by the plaintiff, is a waiver of any objections to the answers, and the plaintitV cannot file furthcrinterrogalories without leave of the Court. Malone v. Handy, Trin. Term, 6 & 7 Wm. IV. When a defendant in ec^ bfor less than 20/. is entitled io -us dis- charge.'] — 16. A defendant in custody for a debt not exceeding 20/. is enti- tled to his discharge under 5 Wm. IV. ch. 3, on satisfying the Court that he has been imprisoned six months, but the rule is not absolute in the first in- stance. King v. Keogh, Mich. Term, 7 Wm. IV. Right of prisoner rendered by his bail to allou-anee.'] — 17. A defendant rendered by his bail after the return of non est inventus to the capias ad satis- faciendum, is not in custody on mesne process, nor is he charged in execution so as to obtain the weekly allowance. Lyman et al, v. Vanderar, Mich. Term, 2 Vic. RerpiisiUa of answers to interroga- tories.] — 18. The answers of a de- fendant in custody to interrogatories ;(Ut to him by the plaintiff after an » rder for the payment of the weekly {'lowance, must not only be full but Si lisfactory. Sandersonv. Cameron, faster Term, 2 Vic. Time fr/r plaintiff to file interro- gatories,] — 19. The plaintitr may file interrogatories after he has made de- fault in the payment of the weekly allowance, and before the defendant INSOLVENT AND INSOLVENCY. INSURANCE. 241 has made any application for his dis. charge. Elwood v. Monk, and But- ler V. Tliamas, Mich. Terra, 3 Vic. Notice hy prisoner under 5 Wm. IV. ch. 3.]— 20. The notice required to be given by an insolvent debtor in execution of his intention to apply for his discharge under 5 Wm. IV. ch. 3, may be given before the full period of his imprisonment, according to that act, has expired. McPhcrson v. Camp- bell, Trin. Term, 4- & 5 Vic, P. C. Macaulay, J. 21. Where an insolvent debtor in execution applies for his discharge from custody under 5 Wm. IV. ch. 3, he must shew that he has given the plaintitf notice of his intended appli- cation. Averill et al. v. Baker, Mich. Term, 5 Vic, P. C. Jones J. Allowance in civil suit where party imprisoned on a criminal cluirge.^ — 22. An insolvent debtor in custody on a criminal charge cannot obtain a rule for the weekly allo.vance in a civil suit. Tlwmpson v. Hughson, Mich. Term, 6 Vic, P. C. Jones, J. Allowance to a party imprisoned for costs."] — 23. The Court will order the weekly allowance to a party im- prisoned for non-payment of costs. Doe dem. Vancott v. Reid, iv. U. C. R, 125. Release of j)risoner from actions — Confirmation by Court of Rcviiiv.'] — 24i. It is not necessary under the 'ith 5th and 24.th clauses of 8 Vic. ch. 48, that the judge's order under the insolvent law, should be confirmed by the Court of Review, before it can ope- rate as a discharge of the insolvent from actions. Ferric ct al. v. Lock- hart, iv. U. C. R. 4.77. Final order.] — 25. The final order must comprise an order as well for the distribution of the effects of the bank- rupt, as for protecting his person and goods from process, lb. 10 «J- 11 Vic. ch. Ib—Wiat acts make an insolvent."] — 26. A prisoner 2 H in execution for debt, cannot, by as- signing his eflocts in trust for such creditors as choose to come in, and on receiving a dividend give him an abso- lute discharge, make himself an insol- vent debtor in the terms of the statute 10 & 1 1 Vic. ch. 15. Gillespie et al. v. Nickerson, vi. U. C. R. 628. INSPECTION OF BOOKS. Sec Corporation, 1. — Mandamus,6. INSPECTION OF FLOUR. See Flour. INSURANCE. See New Trial, I. 17. Action on policy — Affidavits — De- claration.] — 1. Where in the decla- ration in an action against an insurance company it was averred that certain affidavits necessary, according to the terms of the policy, were made by A. and B.: Held, that such averment was material, and that proof of affidavits made by other persons was insufficient. Alderman v. West of Scotland Insu- rance Company, Hil. Term, 6 Wm. IV. Losses by cinl commotion or rifjt excepted in policy — Declaration.] — 2. Where in a policy of fire insurance, losses by fire arising from riot or civil commotion were excepted, and in an action on the policy it was negatived in the declaration that the loss arose from civil commotion, but loss by riot was not negatived : Held, that the de- claration was bad on general demurrer, as the terms riot and civil commotion were not synonymous. Condlin v. The Home District Mutual Fire In- surance Company, Hil. Term, 6 Vic. Fraud i^. avoid the policy.] — 3. Any fraud, concealment or misrepre- sentation by a party eflfecting a policy of insurance of a matter material to 242 INSURANCE. INSURANCS. be known by the insurer, will avoid the pohcy. McFanl v. Montreal In- land Insurance Comj)any, ii. U. C. R. 59. [Ace. Wuiinmght v. Bland, i. M. & W. 32. Also see rase 8, infra.] Particulars of loss.'\ — 4. Where there is a condition in a policy that the particulars of the loss shall be given to the insurer under oath, within a speci- fied time after the loss has occurred, the insured cannot recover on the policy unless the condition has been complied with. lb. Action on marine policy — Necessa- ry avertncnts.li — 5. In an action on a marine policy it is necessar}^ to aver that the lofs occurred during the con- tinuance of the policy ; and if the policy extend only over certain waters, and the vessel is stated to have been lost on a voyage commenced from a certain place, such i)Iace must be alleged to be within the waters over which the policy extended. Mittlcbergcrv. Tlie BritiA America Fire and Life Assurance Company, ii. U. C. R. iW. 6. Where there is an express cove- nant in a policy that a vessel shall be seaworthy and well found &:c. at all times during the continuance of the policy, it must be so expressly averred in an action on the policy. lb. Recovery for total loss, facts sliew- ifig only partial loss — Nctv trial. '\ — 7. Where in an action on a marine policy the plaintilT recovered as for a total loss, the facts shewing only a partial loss, which, however, was not so distinctly left to the jury, the Court granted a new trial without costs. Davis v. The St. Laurence Inland Marine Insurance Company, iii. U. C. R. 18. Concealment, or omission offacts."] —8. Where a party insuring a vessel omits to mention to the underwriters that she has then sailed, the omission, though the insured knew the fact, will not vitiate the policy, unless the vessel be at the time of the insurance what is called a " missing ship." Aliter: If the insured, when expressly ques- tioned as to the fact, says, not by way of ojnnion or expectation, l)ut posi- tively, that the vessel has not sailed when she really has. Semble: That there is a distinction to be taken when the owner of the cargo, who is not at the same time the owner of the vessel, is insurmg his cargo, as to the proba- bility of any positive statement being made to the underwriters with respect to the time of the vessel's sailing. Perry V. Biitish America Fire and Life Assurance Company, iv. U. C. R. 330. As to care and skill of captain in- validating marine pf/licy."] — 9. Se7n~ blc: That with respect to the cargo insured, as well as the vessel itself, a marine policy may, by an express (though not by an implied) agreement, become legally invalid for the want of care and skill on the part of the cap- tain and crew in navigating the vessel ; and semble, that the wording of this policy amounted to such an express agreement. Gillespie et al. v. British America Fire and Life Assurance Compafiy, vii. U. C. R. 108. Seaworthiness — Particular navi- gation — Forfeiture.'] — 10. Semble : That upon the general principles of the law aj)plical)le to the construction of marine policies, the seaworthiness of a vessel is a fact to be considered with reference to the particular navi- gation in which the loss of the vessel may occur — as for instance, if a ves- sel insured between Toronto and Que- bec were lost by stranding in the river St. Lawrence, the question for the jurj' to determine would be, not was she well found and seaworthy for the navigation of the open lake Ontario, but was she well found and seaworthy for the navigation of the river St. Lawrence : and if in the opinion of the jury she was suitable for the river navigation, though clearly not so for the lake, the policy will not be vitiated, INSURANCE. unless it be ho framed as to leave no duubt that tbe intention of the parties was to maice the unseaworthiness of the vessel for either navigation an absolute cause of forfeiture, without reference to the particular navigation in which the loss should- occur. lb. Partial insurances — What ainount insured entitled to — Insured can rc' cover for certain injuries to property otJier tlutn l»/ Jire,] — 11. Where a person insures upon his house or goods for a part only of their value, and suf- fers a loss equal to the full amount in- sured, that sum, unless the policy be specially framed, must be paid by the insurer, and not merely such a pro- portion of that sum as would corres- pond with the proportion between the sum insured and the whole value of the property on which the insurance was ettected. The condition in the policy " that in case of the removal of the property to escape conflagration, the company will contribute ratably with the insured and other companies interested, to the loss and expense at- tending such act of salvage," is not a condition which will have the eflect of changing in this respect the law of partial insurance. ScnMe: That in the form adopted in ordinary policies, injuries to goods by wet, or in any manner from the exposure during the confusion of the fire before they can be got to a place of safety, and goods lost or stolen in the confusion arising from the fire, and of the destruction, injury or loss, of which the fire can be said to be the proximate cause, are within the terms of the policy, but, in suing for such loss, the plaintiiT must describe the occasion and manner of loss according to the fact. Thompson V. Montreal Insurance Company, vi. U. C. R. 319. Fire insurance — Eff'ect of mere cliange of occupation of the jjremiscs insured, without notice, tj|-c.] — 12, Semble : That the mere change in the occupation of a house insured against INTEREST. 243 fire, without notice, &c., there being no other alteration in the manner or purpose of occupation, will not avoid a policy of insurance oflected under the provisions of the act 6 Wm. IV. ch. 18, incorporating insurance compa- nies. Hobsnn v. The Wellington Dis- trict Fire Insurance Company, vi. U. C. R. 536. What isan alienation."] — 13. Sem- ble, also, that a demise of the house insured for one year is not " an aliena- tion" within the act. lb. INTENDMENT (LEGAL.) See Arbitration and Award, V. 1. Arrest of .Judgment, 13. — Bond, 1.2; II. 11. — Innkeeper, 2. INTEREST. Sec Arbitration and Award, IV (3), 4. — Bills of Exchange etc., 1. 16 ; VIII. 6. — Indemnity Bond, 10. — Judgment, 20. — Payment, 9. Interest on judgments.'] — 1. The Court will not order satisfaction to be entered upon ajudgment, without pay- ment of interest. Logan v. Secord, Tay. U. C. R. 225. Metliod of calculation. ] — 2. The method usually adopted in making out an account between debtor and credi- tor upon a loan of money — viz., that of charging first the interest upon the whole debt for the whole period, as if no payment had been made, then al- lowing interest upon each payment from the time it was made, and so de- ducting all the payments and interest from the whole debt and interest — is not the correct way of arriving at the balance. It is so much in favor of the debtor, that where there has been a long arrear of interest, and payments made on account of tiie debt not cover- ing the interest alone, the debtor in a few years, without adding any payment 244 INTERLOCUTORY JUDGMENT. INTERLOCUTORY JUDGMENT. in the mean time, will moke his crcdi. | was regular, and a rule obtained by the tor his debtor to a very large amount, j defendants to set it aside was discharg- er /ojwm MfCr^r^o/- fit «/. v. Crazt have been made aware, was appearance entered by the plaintiff a set aside as irregular, but without costs, nullity; but, as the defendant did not Carlislcy.NiagaraHarlmandDock move promptly against the next pro- , Company, Mich. Term, 1 Vic. ceeding, the interlocutory judgment I Time for signing, in dejmty''s of- was set aside without costs, the defen- j/?cc.] — 13. It is not irregular to sign dant having filed an affidavit of merits. ' interlocutory judgment in the office of Homer v. Brousscau, Easter Term, | a deputy clerk of the Crown in the 4 Vic, P. C. McLean, J. country, at an hour when by rule of Irregularity in judgment— Notice \ Court the principal office in town is of gromuls of olycction— other olycc- i n«>t open. Hall v. Hunter, Hil. Term, tions aftencards taken."] — 9. Where a plaintiff declared in assumpsit on several counts, and the defendants de- murred to one count and pleaded the 3 Vic. Interlocutory judgment signed too soon — Entry of waiver.] — 14. When a month's time to plead had been given, general issue to the others, and the \ and the plaintifi" signed interlocutory same term the plaintiff amended the judgment before the month had ex- count demurred to, and two full days after the service of the amended de- claration signed interlocutory judg- ment on the whole record and assessed damages, having first received notice from the defendant of an intended motion to set aside the judgment as pired, but afterwards entered a waiver in the interlocutory judgment book in the Crown office, but gave no notice of the waiver to the defendant's attorney, and after the month had ex- pired, no plea having been filed, sign- ed interlocutory judgment again and 246 INTERPLEADER. INTERROGATORIES. ; I ■ 1: assessed damages, his proceedings were held regular, the entry of the waiver in the book being a sullicient notice ; but the interlocutory judtrincnt was set aside on the merits, on payment of costs. Wi/nn V. Pa/tiicr, Easter Term, 3 Vic. [Mode of signing interlocutory judgment — See rule of Hilary Term, 13 Vic. number 26.] INTERPLEADER. See Fraudulent Deeds etc., 3. Application must he made before return day of the tvrit.'] — 1. A sheriff who has seized under a h. fa. goods and chattels, the property in which is disputed, will not be relieved under the statute 7 Vic. ch. 30, when the application for relief is not made until after the return day of the writ, unless the delay be satisfactorilv explained. Colev. McFaul, i. U. C'. R. 276. Effect of defaidt in appcarins af- ter nde."] — 2. Where a slierifl" obtains a rule under the statute 7 Vic. ch. 30, calling upon parties to sustain their claims to property seized under exe- cution, and one party fails to appear, his claim as against the sherifTis barred, and the party appearing is entitled to have his costs paid by the party failing to appear. Johnson v. Baldwin, i. U. C. R. 280. Shenf must be in possession of goods before application, 1^ — 3. A sherifT cannot be relieved from the effect of an adverse claim under the Interpleader Act, if he has not seized the goods which are the subject of the claim in execution. Croslin v. Tune, ii. U. C. R. 177. Agreement for the sale of timber — Ownership of the timber. "] — 4-. Upon an agreement between A, and B., " that certain timber should be marked for B. as made, and should be deliver- ed as fast as made to his agent, and ■bould be to all intents and purposes his property — to be held in security for Ins advances :" Held, that — the timber liaving been all made for B., and marked for him, part of it delivered, and all brouglit out of tlie woods and taken possession of by B. and sold to C, who had actual possession for many weeks with the knowledge and apparent consent of A. — such tim- ber co'jld not afterwards be seized by the sherilTas the property of A., merely because B. had not sent out an agent to receive the whole of it in the woods. Dunning v. Gordon, iv. U. C. R. 399. Sheriff selling, goods in violation nf interpleader ordcr.'\ — 5. The sheriff, upon the plaintiff refusing to indemnify, applied to the Court for an interplead- er order, which was granted. Pending the interpleader issue the plaintiff offered the indemnity, and the sheriff sold and paid the proceeds to the plain- tiff: Held, upon an application by the party in whose favor the interpleader issue had been found by the jury, that the sheriff was liable to an attachment for selling the goods in violation of the interpleader order, obtained at his in- stance and for his own protection. Henderson v. Wilde, v. U. C. R. 585. Malcing np the issue.^ — 6. Where no time has been limited, by an into pleader order, for the plaintiff to tt'a- pcrsJ] — 9. Where one of two defen- dants appears by attorney, and the other does not, it is irregular to serve papers for both on the attorney of the one. Hnffw. McLean et al., Hil. Term, 6 Wm. IV. Proccedinss icithout entry of ap- pearance — Waiver of irrcjiularity.'] — 10. The plaintiff accepting a plea and giving notice of trial, cannot after- wards object that an appearance has not been entered for the defendant. Mc- Lean V. McDonald, iii. U. C. R. 126. Curing irregularity by entry of nolle prosequi.] — 11. Where in tres- pass against several defendants the plaintiff went to trial after he had re- ceived notice that the proceedings were irregular as to one of two defen- dants ; Held, that he could not, after verdict, cure the irregularitv by enter. n: ; a nolle prosccjui as to that defen- dant. Camjjlicllv. Urucectal., Mich. Term, 7 Wm. TV. Notice — CfAs^.s-.] — 12. Where a no- tice is required to be ^iven of any ir- regularity, and the notice does not describe what the irregularity i.<, if the proceedings be set aside costs will not be allov/ed. Hcnd^'/son v. Jones, Hil. Term, 3 Vic. Judgment for tvant of pleas to an arrtendcd declaration.^ — 13. Where the defendant demurred to some counts of the plaintiff's declaration, and plead- ed as to the others, and the plaintiff had leave to amend the counts de> murred to, and filed and served an amended declaration, and no new pleas being filed signed interlocutory judg- ment to the whole declaration, the in- terlocutory jjdgment was set aside for irregularity, the pleas standmg good to part of the declaration, but without costs, as there was reason to believe that the plaintiff's attorney had mis- understood the terms of the arrange- ment made between the defendant's attorney and himself with resj)ect to the filing of new pleas. Ilamilionv. T/io?)i]7son, Trin. Term, 3 & 4 Vic, P. C. iNlacauIay, J. Issue of execution against goods after levy on lands.'] — \\<. It is irre- gular to issue a writ of fieri facias against the goods of the defendant after 1 levy has been made on a writ against his lands, which has not bet,n returned, and a judf ment creditor '.^ho is preju- diced, may come in to set such writ aside. Stevens v. Sheldofi et al.,Tr\n. Term, 3 & 4 Vic, P. C. Macaulay, J. Dclan in dijccting to irregularity I\ — 15. •'i nere a declaration was served belbre it was filed, and the defendant, being aware of the error, allowed in- terlocutory judgment to be signed and notice of assessment given : Held, that he was too late to object to the irregu- larity. Proctor v. Youns, Hil. Term, 4 Vic. Service of papers on defendant pcrmnalty after a]>pcarancc hy attor- ney.] — ItJ. Where the defendant had appeared by attorney, and the plaintiff alter declaration signed interlocutory judgment and served notice of assess- ment of damages on the defendant himself, and assessed damages upon that notice — the Court held the assess- ment irregular, and that it \\ as not ne- cessary that any notice should be given to the plainliff of the defendant's in- tention of moving to set aside the pro- ceedings n)r such irregularity. Bisluyp V. Lindsay^ Hil. Term, 5 Vic. ^m IRREGUIlai»- tiff swearing that the defendant is still living.'] — 7. The Court will order a judgment to be entered upon a cogno- vit seven years old, upon an allitlavit from the plaintifl* of the whole being due, and also .Mating that having re- ceived a letter from the defeiidnrit he believes him to be still alive, though the atfidavit does not state that the defendant wrote or signed the letter. Olipluuit V. McGinn, iv. U. C. R. 170. Several defenda nts — Cognovit sign- cd hy some — Jiidgntent^ — S Where there are several defentlants, and a cotinovit intituled in the cause against all is executed by some only, judgment cannot be entered aijainst these latter onlv. RiHich V. I'ola^i et at., Trin. Term, 2 & 3 Vic. Memora?ah( oi deferringiwyment — .Judgment f/r irhn/r amount.] — 9. Where a cognovit was given with a stay of execution to a future day. and a memorandum was indorsed deferring payment of part of the debt for a longer lime, and at the day judgment was entered for the whole amount — the Court restrained the levy, according to the menuirandum, with costs. Fisher et al. V. Edgar, Easter Term, (i Wm. IV., and Alexander v. Jlervey, Trin. Term, 7 Wm. IV. Judgment entered in outer districtf nojiroceedings having been had there — Transmissio/i (fjxqjers toprinripal q^/icc.] — 10. A judgment er.tered upon a cognovit, by a deputy cicik of the Crown in an outer district, no previous writ or proceedings having been issued or taken out in such deputy's oflice, is in itself void. Semblr, however, that if the judgment had been transmitted to the principal ollice in Toronto, and an entry had been made there, so as to constitute an entry of judgment on the face of the judgment roll, or so as in the terms of the statiite S Vic. ch. 3(), sec. 4, to enter judgment of record aiul docket it in the principal ollice, it might have been upheld. Laverty v. Fattrrson, v. U. C. R. t541. 11. Where a judgment had been entered on a cognovit, and a li. fa. issued thereon in the oflice of the deputy clerk of the Crown, in an outer district, without the suit iiaving been previously commenced in that otlice, by issuing process or otiuiv"'*"- -the Court, upon application, set aside the JUDGMENT. JUDGMENT. 253 a 1(1 judgment and all proceedings thereon. Commerdai Bank et nl. v. Brondgccst et al., V. U. C. R. 325. 12. Scmblc: That the assignees of a bankrupt defendant sutficieiitly re- present the interests of the bankrupt estate, to move the above exception to a judgment. Ih, CoiiitovU by executor and vxccutiiy, pcrsnuutly liiiuUiiii under misappre- hension — Judixinent.'] — 13. A. and B., executor and executrix, liaving given a cognovit signed l)y them as executor and executrix, and which the plaintiir's attorney led them to beheve would bind them oidy in their repre- sentative character : Held, that though the cognovit might bind them jierson- ally in its terms, that a personal judg- ment entered up against them must be set aside. Sendde also, that the judg- ment roll, alleging " a debt due by the testator in his lile-tinie on an accomit stated, in consideration of which the defendants promised to pay," would not warrant a judgment against the defendants personally, but only against them as executor anil i-xecutrix. Gor- rie v. Beard et al., v. U. C. R. G2l). Lien on lands.l^ — l-t. Lands are bound only from the delivery of the writ against them to the sherilf, and a judgment is no lien upon them. Dne dem. Mcintosh v. McDonclt, Trin. Term, 5 iV, ti VV'm. IV., and Doe dem. Auldjo s.lMlister, Easter Term, 2 Vic. [Bui sec case -"i, iiilhi.] 15. The jiidgmontof a dislrictcourt cannot bind lands for want of a docket. Doc dem. Mcintosh v. McDonell, iv. 0. S. 195. Judument asainst casual ejector — Time to enter. ^ — 1C. Judunient can- not be entered against the casual ejec- tor until four dn\s have ehi]>sed from j the time the rule for judgnieiit is taken I out of the ollite. Doe dem. Ilarlcy ' y.Roc,\\. O. S. 113. I [S«e statute 14 ^' 13 Vic. ch. IM, sees. 1 aiul .5, Setlini; aside such judiitnciit fnr cnl- lusioii— See Eject.ment, V. 3,5,9, 10, 11, page 180.] 17. In an ejectment for premises in the Home district, when the tenant is called upon to appear within the first four days of the term, it is irregular to sign judgment again.st the casual ejec- tor until the allernoon of the fifth day after the rule to appear has been taken out of the ortice. Doe dem, Robinson v. lioc, Easter Term, 3 Vic. [Wiiivcr of irregularity in a judgment against the casual ejector— See W.mveh, 4.] Judgment of inferior amrts, evi- dence in sujKrior courts."] — 18. A judgment in an inferior court for a specific sum, is prima I'acie evidence in a superior court against a less sum only being due, and as respects the merits of the judgment, it is conclusive evidence, till it is repelled by proof of such facts as liave been admitted, to destroy the effect of foreign judgment as evidence of a debt. Pane v. Phe- lan, \. U. C. R. 254.. Bar to on action on a district court judgnient.']-VJ. In debt on a judgment of a district court it is a good plea in bar that the plaintilf arrested the de- fendant on a writ of capias ad satisfa- ciendum, and afterwarils consented to his discharge. Fraser v. Bacon, ii. U. C. R. 132. Nunc pro tunc — Interest."] — 20. Where a cause had been ])ending for several terms on a motion lor a new trial after a verdict for the plaintiff, the Court refused, after discliaiging the rule for the new trial, to allow the plaintilf to enter judgment as of the term in which the motion was made, in order that he might obtain interest on his verdict while the proceedings had been stayed by the motion for a new trial. Foucll v. Boullon, iii. U. C. R. .53. Verdict suhjeet to a reference — No atrard hy neglect if defendant — Judgment.'] — 21. Where a verdict is, taken for the plaintiff subject to a re- ference, and no award has been made, owing chiefly to the neiilect of the de- fendant, the Court will allow judgment 254 JUDGMENT. JUDGMENT IN CASE OF NONSUIT. to be entered for the amount of the verdict, unless the defendant sul)mit to another reference on reasonable terms. Watson V. Folheigill, Easter Term, 6 Wm. IV. Leave of court hrforr cnlrrins^juds^- ment on such, rcrdict.'] — 2"2. A piain- tift who takes a verdict subject to a reference, but docs not proceed to ar- bitration, owing partly to the fault of the arbitrators, partly to the delay of the defendi nt, cannot enter judgment on the verdict without first applyiriL' to the Court. Mott v.. Louch, Trin. Term, 1 & iJ Vic. Grounds for rutr?/,'] — 23, The Court will not allow judirnient to be entered on a verdict subject to a re- ference on account of the attempt to arbitrate having failed. Gouldv. Free- man, iii. U. C. R. 270. Time for entnj of such jud^mmf .] —24. Where an award upon n refer- ence at Nisi Prius (a verdict being ta- ken subject to such award.) can be said to rest on a verdict only, there being no other matters in dilVerence lek to the arbitrators but those in the cause, judgment may be <;ntered after the first four days of the succeeding term. But when tlie reference can be said to include matters in difl'erence between the parties not included in the cause, judgment cannot be entered until after the next succeeding term. In other words, in the first case the party against whom tiie award has been ren- dered has the first four days of the term within which to move to set tin- award aside ; and in the second case, he has the whole of the term. JIaiche V. Duggan, v. U. C. R. G3(). 25. Where a cause was referred to arbitration on a verdict taken by con- sent, and the award being made in va- cation final judgment was entered before the first day of the next term, the judgment was iield to be irregu- lar. Vincent v. McLean, Dra. Rep. 177. Purchase of land subject to a judg- ment.^ — 2G. Where a party purchases land u|)oii which a judgment had at- tached, he holds the land subject to a right of sale under a fi. fa by the judgment creilitor. Doede>,i. McFher- son v. Hunter, iv. U. C. R. •i-iQ. Verdict suliject to points reserved — Entnj of judgment rvithout argu- inriit. of those puiuts — Delay in moving against ?>.] — 27. Where a verdict was rendered for the piaintiiT in ejectment subject to points reserved, and without any argument of the points the plaintilT entered and took posses- sion of the land in dispute, the Court rel'used to interpose and set the judg- ment aside after a lapse of more tiian two years. ])or dent, Myers v. Td- man, i. U. C. R. J20. Ftitry of judgment, when points rrsrrred Init nol inenli(med. in. the iialgrs)iotrs,'\ — "iS. Wliere points are reserveil at a trial and indorsed on the leccird, but the judge makes no entiy thereof in' his notes, the record must iiovern, and judgment cannot be en- tered until the points are disposed of. Toiilor V. Tay/or, Hil. Term,7 Wm. IV. JUDGMENT (ARREST OF). Hec Arrest of Judgmknt. JUDGMENT AS IN CASE OF NON-SUIT. I. When Ri;t.E for Judgment CHANTED OH KEIl SED. II. Grounds for niscirARGiNGTiiE Rule ox tiiePeiiemi>toryUn- DEUTAKIXCi. III. PllACTICi; ON MOVING OR OPPO- siNc THE Rule. IV. PnocEEDiNfis AFTKR Breach op Undertaking and Conditions. JUDGMENT IN CASE OF NONSUIT. JUDGMENT IN CASE OF NONSTIT. 255 I. When Rule for Judgment GRANTED OR REFUSED. When venue laid in the count nj.'] — j 1. Where the venue is laid in the ' country, a rule for judgniciit as in case I of a non-suit will bo granted, when two | assizes have passed without the plain, i tiff proceedinsf to trial. Start v. Bul- len, Easter Term, 2 Vic. Case put to foot of docle.t icith con- sent of ■pttrtics, and not afterwards tricd.'l — 2. Where a cause came on to be tried in its turn, and the plain- tiff not being ready the delbiidant con- sented that it should bo put to the foot of the docket, and it could not afterwards be tried for want of time — a rule for judgment as in case of a non-suit was refused. Bank of Upper Canada v. Covert et id., Mich Term, fi Wm. IV., and Bank of Upper Canada v. Be- thunc et al., Mich. Term, 6 Wm. IV. After a trial.'] — 3. The rule for judgment as in case of a non-suit can- not be obtained where thoro has been atrial, and if obtained, and the plaintilf entered into a peremptory undertaking, he is not bound by it. Warren v. Smith, Hil. Term, 2 Vic. When jury discharged irithout a verdict.] — 4. Where a cause was! brought down to trial and the jury dis- ' charged without giving any vonlict, ' and the plaintilf did not aftorwnrds proceed : Hr/d, that the dofeiulanl | could not move for judgment as in case ' of a non-suit, because the plaintilVhad not proceeded to trial according to the practice of the Court, within two as. ' sizes after issue joined. Bradlmry v. . Flint, Mich. Term, 4 Vic. I Not allowed in rcplriin.] — 5. A ; defendant in an action of replevin can- ' not move for judgment as in case of a non-suit. Brown v. Simmons, i. U. C. R. 336. I Entry of incipitur on the roll suffi- cient.'] — 6. The entry of the incipitur upon the roll ia a sutRcient entry to enable the defendant to move for judg- ment as in case of a non-suit. Brown V. Stuart, Tay. U. C. R. 183. Not allowable till issue joined.]— 7. Judifuicnt as in case of a non-suit cannot be moved before issue joined and the i. •Sc 5 Vic, Macaulay, J. [So Brook V. Uoxjil, i. M. & W. 552, and Jarkwn. v. VHini^, x. M. & W. 640.] 8. Even if notice of trial had been given and countermanded, yet if the similiter be not added, the rule will be refused. Gibson v. Waslrington, Easter Term, 7 Vic, i. U. C. R. 410, P. C, Hagerman, J. [See next case, also, div. III. 3, infra.] 9. Semhlr : That when a plaintifT has given notice of trial, a rule for judg- ment as in case of a non-suit will be made absolute, even although the cause be not at issue, no similiter having been entered, unless that fact be shewn in answer to the rule. Elvidge v. Boyn- ton, Mich. Term, 7 Vic, i. U. C. R. 279, P. C, Jones, J. [See also, div. Ilf. 2 infra.] 10. A cause is not at issue, and the rule for j\idgment will not bo granted, if the similiter be not actually fUed. Due dcin. Anilrrso/i v. Tfxld et al., Mich. Term, 7 Vic, i. U. C. R. 279, P. C, Jones, J. 11. Nor can the rule be obtained in a cause in which there are several pleas on which no issue has been joined, by adding similiters. McCnguc v. Clothier, Easter Term, 8 Vic, i. U. C.R. .'in, P. C. Hagerman, J. Cause made a rcmanet.] — 12. Where a cause has once been taken down to trial and made a remanet of, the defendant cannot afterwards obtain judgment as in case of a non-suit, in a country cause. Doc dctn. Dodge v. Hose, iv. U. C. R. 174. When judge refuses to try the cause the issue being imnuUeruil.] — 13. I- 'I Ill £. ^ mn^ 256 JUDGMENT IN CASE OF NONSUIT. JUDGMENT IN CASE OP NONSUIT. Gkounus for discharging the Rule on the PEREiMPTORY Un- dertaking. The refusal of a judge to try a cause II. upon an immaterial issue places the record in the same situation as if the cause had heen made a renianet-the jv^/y/^///- prcinital hy defendant defendant therelore cannot have judg- .^, niUruia rrcnrd in vr,mcrtime.l inentasm case of a non-suit, umler /_j^ A rule for judiimentas in case of such circumstances. ITadfr,onv. Str. i.^ ,^^„.^^,i^ ^^..,^ dischamed on the per- vens, V. U. C. R. 6^;), P- C.. Mc- 1 ^.„,j,^,„.y undertakini,^ without costs, Lican, J. when owiny; to delay occasioned by Granted, vnlrss costs of the day be i an ^,\\^^\\c.lli\on of the defendant, the ^)aerf.] — l-i. Tiie Court will sometimes | plainiilfhad been prevented from enter- order that a rule for judgment as in i ing his record for trial on tiie commis- case of a non-suit shall be made abso- I sion day of the assizes, and liie defen- lute, unless the costs of tiie day be paid dant refused to its being afterwards within a certain time. Warren v. Grant ct al., Easter Term, 2 Vic. To one of several difenda)its.'\ — 15. One of two defendants cannot have judgment as in <"ise of a non-suit. Sjmj/hrd v. Biie/ianan ct al., Mich. Term, 6 Wm. IV. To one defendant, when judgment hij defaidt against co-defcnilant.'\ — 16. Where there are two defendants and one pleads to issue, and the other allows judgment to go by default, and the plaintilV does not proceed to trial pursuant to notice, the application for judgment as in case of a non-suit can- not be made by both defendants, but only by the one who had pleaded. Brunskill v. Chunuisero et al., v. U. C. R. 270. 17. Seml/le: That even in a joint action of assumpsit, one of several de- fendants jointly sued may move for judgment as in case of a non-suit. llj. [So Slunrt v. i?o?frs, iv. M. & W. 649, Jones V. Gibaon, 5 B. ic C. 7(i8. And so in actions of lotl, Had rid- v. Ikslup, 11 Jur. 1012.] Changini: ■centie — Subsequent de- fault in goiiig to trial.^ — IS. A venue is not changed by a jmlge's order and service alone, and a defendant will not be entitled to judgment as in case of a non-suit upon the ground that the plaintifTdid not go to trial in pursuance of a notice grounded upon such order. M'Nair v. Sheldon, Tay. U. C. R. 598. entered until the plaintilV's witnesses had gone home, and he knew that the plalntitl' could not proceed to trial. Fenniman v. Wince, Mich. Term, 6 Wm. IV. [See also, case 4, infra.] Issues i?k law undisjmsedof.'] — 2. Tt is no suflicient gromiil of op|)osition to a rule nisi for judgment as in case of a non-suit, that there are issues in law undisposed of. Leach v. Dulmagc, Easter Term, 'i Vic. [iSVr/ qtiffre, ovcrniiirig, 2 Marsh, 364.] Injunction from Chancery to stay execution.'] — li. A rule for judgment as in case t)f a non-suit, for not pro- ceeding to trial pursuant to notice, was discharged unconditionally, when it appeared that after notice ol trial was siveii, but within the time for counter- manding, an injunction was granted in Chancery to stay execution in the cause. Doe deni, Uurnsidev, Hector, Trin. Term, 4 cV 5 Vic, P. C, Ma- caulay, J. VlaintifJ' prevented from proceed- ing by defendant.] — i. Scmble: That where a plaintitf has been prevented by the defendant from proceeding to trial, a rule for judgment as in case of a non-suit will be discharged on the peremptory undertaking without costs. Doe deni. Anderson v. Twld ct al., i. U. C. R. 279. Record withdraien by oilvice of cmmsc.l.'] — 5. It is sufficient to entitle the plaintiff to enter into a peremptory JUDGMENT IN CASE OF NONSUIT. JUDGMENT IN CASE OF NONSUIT. 257 undertaking after default in not pro- ceediii;^ to trial, that it appears on alfi- davit that on some special circum- stances he witiidrew the record, acting bonafuie on counsel's opinion, without any statement of the circumstances. AriitshvHg V. Bcnjanuti, i. U. C. R. 414. D('f'c)i(hint hdvinu: tnmjwred teith plaintijj's irilnrss.^ — G. Where a witness attending the assizes on the part of the plaintitfis seen to converse with the defendant and afterwards shews an unwillingness to remain, and leaves the assi/es, this fact will entitle the plaiatitf to enter into the peremp- tory undertaking, upon judgment as in case of a nonsuit being moved by the defendant. Bates v. WDonohoc, iii. U. C. R. 178. Ahsf?)ilication for judg- ment as in case of a nonsuit for not proceeding to trial pursuant to notice, the affidavit on which such motion is made must shew that issue has been joined, or the record must be produced, to sliew that the similiter lias been added by the proper ollicer of the Court. Price \. Brown, Easter Term, i) Vic, iii. U. C. R. 127, P. C. Ha- german, J. Notice of motion in lieu of rule nisi.] — 4. A notice of intended mo- tion for judgment as in case of a non- suit will not supply the place of a rule nisi. Smith v. Kennctt, Tay. U. C. R. 638. Motion to discharge rule.] — 5. The motion to discharge a rule for judg- ment as in case of a nonsuit on the peremptory undertaking must be made in ojjcn Court, and be supported by aflidavit. Hollister v. Barn/iart, Hil. Term, 2 Vic. Defendant alloice vo answer affir- damts fled in apposition to rule] — Jmi.jj.'i ' i^umgjj 258 JODOMBNT IN CASE OF NONSUIT. JUDOMGNT IN CASE Or NONSUIT. 6. Where a plaintiff shewed cause against a rule for judgment as in case of a nonsuit, and filed affidavits enti- tling him to enter into the peremptory undertaking, and also urged relief from the costs of the day, the defendant was allowed to file affidavits in answer, the Court ruling that he was to be consi- dered in the same position as if the costs had been demanded on a sepa- rate motion. Burr v. Bernard, Trin. Term, 3 & 4 Vic., P. C. Macaulay, J. 7. Where in answer to a rule for judgment as in case of a nonsuit the plaintiff filed affidavits alleging an agreement with the defendant to refer the cause to arbitration, which was the cause of his not proceeding to trial, time was given the defendant to an- swer those affidavits. Skae\. Ack- land, Hil. Term, 4 Vic. Rc-openi>is of rule nisi for argu- ment^ — 8. Where a rule nisi for judgment as in case of a nonsuit was enlarged until ^k; first day of the next term, and on the second dav of the term the rule was made absolute, no cause being shewn against it, the Court, though they held the defendant regular in moving his rule absolute when he did, allowed the plaintiff nevertheless, upon affidavits filed during the term, to have the rule nisi re-opened for argu- ment. Stewart v. Davis, v. U. C. R. 268. Rule containing 'peremptory tin dertaking, ivhen, and by ichom, to he taken out."] — 9. The rule containing the peremptory undertaking of the plaintiff to go to trial may be taken out by the defendant af\er term, though moved for by the plaintiff in term. This rule may also be taken out after the time therein limited for the plain- tifl'stakingthe cause down to trial. Ross qui tarn v. Mcyers,vi. U. C. R. 622. IV. Proceedings after Breach of Undertaking and Conditions. Rule absolute in first instance.^ — 1. The rule for judgment as in case of a nonsuit, af\er a peremptory under- taking and default, is abs(ilute in the first instance. Bcn/ian v. Shair, Dra. Rop. 121, and Mastin v. Garrow, Mich. Term, 2 Vic. [So 4 Bing. N. C. 365.] Relief from rule absolute rarely granted — Service of rule not ncees- sary.l — 2. Where a rule for judgment as ill case of a nonsuit has been dis- charaod by the plainrilf on a peremp- tory undertaking and payment of costs, and he afterwards makes default, both ill proceeding to trial and payment of those costs, the Court will not, unless under very special circumstances, set aside a rule absolute which has been obtained by the defendant in conse- (juence. It is not necessary that a rule absolute for judgment as in case of a nonsuit shall be served. Matthew- son v. Glass, i. U. C. R. 516. Payynent of costs of the day and rule made a condition precedent^ — 3. Payment of the costs of the day, and of the application for judgment as in case of a nonsuit, may be made a condition precedent to the plaintiff's being allowed to discharge the rule for judgment, and to carry down the cause for trial at the next assizes. If no costs of the day have been incurred, that portion of the rule may be considered as surplusage ; the rule need not be amended. Ross qui tarn v. Meyers, vi. U. C. R. 622. \Vhe7i rule discharged tcith costs, no ])rocecdings can be had till those costs be j;a?V/.] — 4. If a rule nisi for judgment as in case of a nonsuit for not j)roceeding to trial pursuant to no- tice is discharged upon a peremptory undertaking, payment of the costs of the day &c., the plaintiff can take no further steps towards proceeding to any future trial unless those costs be fust paid ; and if he do proceed, as by giving notice of trial, the defendant may treat such notice as a nullity. Doe dem. McMillan v. Brock, i. U. C.R.482. JUDGMENT NON OBSTANTE. JUDGMENT OF NON PROS. 259 Proceedings taken uithnut payment of costs set asi/lc.^ — 5. Where a cause has been taken down to trial anil with- drawn, and in the ensuinir term a rule for judgment as in case of a nonsuit is disciiargod upon tiie peremptory un- dertaking and payment of costs, and the plaintiff allervvards obtains a judge's order to amend his dei;laralion on payment of costs, and vvitiioutpay. ing the costs in both cases serves the defendant with his amended declara. lion, the Court set aside the fding of the amended declaration with costs. Maddock V. Corbel, iv. U. C. R. 257. Discharge nf rule for judgment, on •peremptory undertaking — Plaint i(f treating his own, rule as a nul/ity — Coiulition oji to costs.^ — 6. Wliere the plaintitfhad a;iven notice of coun- termand, and the defendant obtained a rule nisi for judgment as in case of a non-suit, and the plaintiff discharged the rule on the peremptory underta- king, with the condition inserted, on paying not only the costs of the appli- cation but tiie costs of the day, and the plaintiff without paying any costs, treatiiuf his own rule as a nullity, pro- ceeded to trial — the Court set aside the verdict without costs, on the ground that though the plaintiff could not be com|)elled, where he hadcounterniand- ed iiis notice of trial, to pay the costs of the day, and that the rule so far was insensible, yet that the conditions as to the costs of the application being good, the whole rule granted on the plain- tiff 's own motion could not be disre- garded by him afterwards as a nullity. Ross (mi tarn v. Meyers, vii. U. C. R. 371. JUDGMENT NON OBSTANTE VEREDICTO. Time for motiofi.'] — 1. ScmLlc: That applications for judgment non obstante or to arrest judgment, are not limited with us, as in England, to the first four days of the term next after the assizes. Perry v. Richmond, v, U. C. R. 285. [But see rule olHilary Term, 13 Vic, No. 38, in wliich it is ordered ihat this nioi ion must l)e made within the time allowed for new trials, viz., within the first four days ot the term after trial.] Trespass fpiare c/ansum fregit against sheriff — Averments of outer d(X)r being broken or open, omittedJJ — 2. Neither the declaration nor re- |)lication in an action of trespass quare clausum fregit against a sheriff charged as an injury " the breaking of the outer door," and the plea justifying the tres- pass under a writ of fi. fa., on grounds sustained at the trial, contained no allegation that " the outer door was open," the plaintiffcannot, because the plea does not contain such allegation, move for judgment non obstante vere- dicto. Evans v. Kingsmill, ill. U. C. R. 118. [There must be an express confession of the cause of action, to entitle a person to judg- ment non obstante. — Mkinson v. DavUs, xi. M. & \V. 236 ; Pine v. Grazebrook, 2 C. B. 429.] JUDGMENT NUNC PRO TUNC. See Judgment, 20. JUDGMENT OF NON PROS. See Capias ad Satisfaciendum, 8. — Corporation, 2.-JuDGE (in Cham. BERs), 2. — Particulars of De- mand, 4. — Term's Notice, 3. Several defemlants — Order for par- ticulars to one, the others not luiving appeared.^ — 1. Where in an action of assumpsit against several defendants, one of the defendants had obtained an order for particulars, which, after a lapse of several months had not been delivered, the Court discharged a rule nisi, which he obtained for the deliv- ery of particulars by a certain day, or that he should be at liberty to sign judg- ment of non pros., on the plaintiff shew- ing that all the defendants had not 260 JURY. JURY. appeared. Shnrc rt vx. v. Bradley et al., Trill. Term, 4- .V; 5 Vic, P. C, Macaulay, J. Judsmcut for jcai/tof a similifcr.'\ —2. Judgiiieiit of lion pros, cuniiot he signed, ijeciiiiso the plnintifr lias nut served a similiter (see IfUii rule Easter Term, 5 Vic.,) upon issue joined — the Court, in passinir the record, will add the siinililor as of course. Young v. StocMalc, V. U. C. R. 3.S2. Jndii)»c?it Jor viixftilc in dcclarn- tion.l — 3. A defendant cannot sign judgment of non pros, for not declaring, where the plaintill's have in fact de- clared but a mistake has been made in the name of one of them, the pro- per course being to move to amend the declaration as to the name, under 7 Wm. IV. ch. 3, or to set it aside for irregularity. Hurt ct al. v. Boyle, Mich. Term, 5 Vic. Signing judgment tt'ithont filing original ])apers.] — -t. It is i rregular to eign a judgment of non pros., without filing the original papers in the judg- ment office. Lyman v. Culler and Lyman v. Lovejoy ct al., iv. 0, S. 15. JURISDICTION. Sec Arbitration and Award, II. 5. — Attornky,III. 17, IS. — Bail, II. 15; III. 10.— District Court, 1, 5, 6, 7, f), 12, 13.— Foreign Jldgment,10, 13. — Foreign Law, 4. — LiBEi. AM) Slander, I. (5,7. — Revenue. — Sheriff's Sale, 7. — SUBP(£NA, 2. JURY. See Assessment of Damages, 4. — Costs, II. 12. -New Trial, VII.; X. 13. — Non-suit, 14. — Sheriff, III. 15. Koticc of striking special J wy,"] — 1. There must be four clear days' notice of Btrilsing a special jurj' j therefore a notice given after 11a. m., on Satur- day, to strike a special jurj- at 1 1 a. m., on Tuesday, is not sutlicient. Bell v.Flinlfml,m.V. C. R. 122. [So the stiilutc 1.3 & 14 Vic. ch. 55. sep, •II, oiiaots that tlic notice must he Kt'ivml at least lour (lays lit'lbie btrikiiiu a s|iocial jury.] Time jor striking sjxcial jury — Niimhfr.'\ — 2. A special jury cannot lie struck after the coniinlssioii day of the assizes ; but it is no objocfion to sucli a jury that the sheiid" has not summoned sixteen jurors, if a sullicicnt number attend to try the cause, il/oj/;- n/ V. Maynard, Mich. Term, G Wm. IV. 3. Quarc : Should not a venire and distringas issue in such a case \ lb. Sperial jury improprrly stnicic — Waiver,"] — 4. Where a special jury was improperly struck, but the defen- dant's attorney was present and made no objection : Held, that he could not afterwards, on that ground, move for a new trial. S/iipman v. Birming- luun, Hil. Term, 7 Wm. IV. Certiftcatc.'] — 5. An application for a judge's certilicate, that a cause is a proper cause for a special jury, must be made immediately after the trial, on the same day as the cause is fried. Binkley v. JJejardine, Tay. U. C. fi. 231. Caitse tried hy common. j}(ry,ii-licn sjierial jury struct,- Imt nol siinimon- cd.] — 6. Where on a venire to a coro- ner a special jury was struck, but the coroner neglected to summon them, and the cause was tried by a common jury, the defendant objecting, but after, wards entering into his defence, the plaintiff obtained a verdict : Held, that the verdict was irregular, and that the defence, made under protest, did not operate as a waiver. McMurtin v. Poivrll, Easter Term, 3 Vic. Cause irregularly tried hy common jury — Keio trial — Second, trial Inj common jury.] — 7. If a sj)ecial jury be struck previous to an assize, and the cause is irregularly tried at JUSTICES or TIIS PEACE. Kingston marine railway. 261 that assizR by a common jury, nnd the verdict afterwards set aside, it is irregu- lar to try the cause a second time by a common jury, no new special jury be- in? struck. j\IcM((tliii v. Poivdl it «/., Trin. Term, 3 & 1 Vic. Rrlirf mif/rr 7 W/n. IV. rh. 10.] — 8. Bv a libiMiil eonstructirin of the Estreat Act, 7 Wni. IV. cb. 10, tlie Court will, in certain cases, relieve jurors from fnics im|)oscd on them at Nisi Prius, alter the tine has been levied by the slieritV. Cole, In re, Trin. Term, 5 A: 6 Vic. Ajjidavita by jvrnrs to sheir mistalr in vrnl.kt.'] — 9. The allidavits of jury- men cannot be received to shew that there was a mistake in their verdict, unless the mistake also appear in the judge's notes. Malloch v. Morris, Trin. Term, 1 Sc 2 Vic. [Affidavits of jurors as to what took place in open court on the dehvery ol'lhoir verdict, are receivable — Rohnrls v. Hus^hei, vii. M. & W. 399; or to iitiswer u chariro of personal misconduct— iSVo«(/cifif/i; v. Hopkins, 2 Dowl. Q. B. 502.] Coroner — Pand to be returned hf coroner under special iirit of venire.^ — 10. The coroner, under a special writ of venire, is not retpiired to return a panel of thirty-six jurors, the 36 Geo. III. ch. 2, and the general jury law- being applicable only to the sheriH". and not to the coroner. Fmscr v. 2>ect- MENT, VIII. 12, 18. — Forfeitlre, 1,2, .1.— Pleading, II. 15; VIII. 6. — Replevin etc., passim. — St k- render, 5. I. Relation A Nn Rights of Land- lord AND Tenant. II. Description of Tenancy, and OvEniioLDiNG Tf.nancy in par- ticular. III. Demand of Possession, and Notice to Quit. I. Relation and Rights of Land- lord AND Tenant. Sec Arrest OF Jud(;ment, 1.-E.iect- jvient, I. 2, 8, 9, 10, 11,27.— For- feiture. — Highway, 7, S, ft. — inioney had and received, 4. — Replevin, 5,8, 9. — Trespass, 1. 8. Conslnniion of aiircrnunt to de- liver hdif tlic ivlimt 2^rodiar(l J] — 1. A. leased a farm to B. upon tlu! con- dition that B. was to deliver to him one-half of the wheat to be raised on the farm. — B. was to harvest it and thrash it, and deliver it to the defen- dant's granary: Hrhl,\\\. under this agreement, A. and B. were not part- ners in tiie wlieat while it grew in the field, but stood fo each other in the re- lation of laiidiorU iiid tenant; and that therefore no legal property in the "'heat could vest in A. till B., the ten- ant, had thrashed it and delivered to him ills portion. Htiydon v. Craw- ford, iii. O. S. 583. LSee Money had and RKtEivEn, 4.] Farm on shares — Notirc to i/uit.^ — 2. A person taking a farm on shares for a specific term is a lessee, and en- titled to six months' notice to quit. J)or d(ni. Jhiiiiidl v. X,i/(A', Easter Teini, 7 Wni. IV. Iliiiht of landlord to maintain treq)ass against t':nant.^ — 3. \ ^m LANDLORD ANDTENANT. LANDLORD AND TENANT. 263 landlord may maintain an action of trespass against his tenant to recover tlie value of trees cut down and car- ried away by him, and which were not demised to him,ti»ougli growing on the land which the tenant held. Ckrs- nut V. Day et al., Hil. Term, 7 Vic. Right of Inndlord to maintain trespass aviuinst a atrangcrJ] — 4. Wiicn prcniises have been let, and the tenant is in possession of them, the l!>;ullord has no ritrlit of action against a person for breaking and ei!- teriiig tlie said down th has at some olher time removed the rails and converted them to his own use. lilrekcr v. Cobmui, iii. U. C. R. 172. Trespass — Plea, libenirn tcncmen- tum — Replication, tenancy at will.'] ' — 8. Where in trespass quarc clau- sum fregit the defendant pleaded libe- rum tcnemcntum, and the plaintiff re- plied that the defendant had leased the premises to the plainliflf at will, and that under the demise he entered and was possessed until thedefendant broke and entered, Sec, the replication was held bad on general liemurrer. Hcn- dersoji v. Ilaiprr, i. U. C. R. 481. As to landlord pir^ dicing his claim for rent A — 9. The ciruumstance promises and puihng | ^^ ^ lanMotA having joined in giving a fences, unless that pers,.n ; ,^,^„j j,,^j ^,,^, ^^^^^ distrained should be forthcoming for the purpose of being sold upon li. fa., will not prejudice his claim for rent, neither will his claim be prejudiced by his having distrained as landlord, and by afterwards having Sandoned the distress, nor even by his liding at the sale of the goods. Brown v. Ritttan, vii. U. C. R. 97. Wrongful encroachment lyy tenant for tar tit ij years — Rights of landlord therrhy.'] — :">. Where a landlord places a tenant in possession of lot number one, and the tenant knowingly en- croaches on lot number two, to which the agreement between himself and the landlord i;ives him no title vhat- ever: Held, that the tenant's occupa- tion does not enure to create for the landlord a title to lot number two by means of a twenty years' possession of the lot. Doc firm. Smytk v. Lca- vcns, iii. U. C. R.411. Right (f tenant to put another in- to jvissrssion.] — 6. A tenant cannot be allowed to put another into posses- sion, or connive at his slipping into possession, but must deliver up the premises to his own landlord. This principle is laid down in many cases, and it is very necessary to insist on it for the protection of landlords. Per Rol)inson, C. .1. Docdeni. Miller v. Tiffany, v. U. C. R. 79. riirclinsr hi/ tenant over landlorcPs /»'(«/.]— 7. A j)arty in possession as a tenanl at will, will not be allowed to purchase from a stranger over his landlord's head. Doc dcm. Si7)ipson et al. V. Mollay et al.y v. U.C.R. 320. II. Description of Tenavcy, and OVERHOLDING TeNANCY IN PAU- TICULAR. See Costs, VII. 6.- -Distress, /. 3, 6. — Lease, I. 4. Agreement for a lease not carried into effect — Situation of tenatit.'\ — 1. Where a tenancy from year to year exists, and during its continuance the parties agree for a lease for a certain term, with a i)ower to purchase, w hich is never executed, the tenant stands in his original situation, on the failure of the agreement, and cannot be ejected without a regular notice to quit. Doe dem. Crookshankv. Crookshank, Mich. Term, 5 Vic. 4 Wm. IV. ch. l,s. 53,afpliesonly to orerholding tc/iants.li — 2. Tlie statute 4 Wm. IV. ch. 1, sec. r)3, applies only to tenants overholding after their term has expired, and not to a tenancy at will. Adncrant v. Shriccr, Trin. Term, 6 iV 7 Wm. IV. Right of landlord to talc jMsscssion of premises overlioldcH.] — 3. Where a ' Iii 264 LAND TAX. LEASE. tenant holds over aflor the expiration I LARCENY. of his term, liis Intullord has a ri^ht tu ' .^^^ Conviction, S.—Cuimixai. Law, take possesion if lie can. without a ;>._Liiii:i. and Si.ANnEU, 111(1), G. breach ot the peace. Boidtan v., Noricn of Action, S. Blarphij cL uL, Easter Term, 2 Vic. Rvcnrcrij oi>(iiiist ovrrhu/tlitii; ton. ant — Rcfaaul to rr.s/urr tr/Kud.] — I. Where in a proceeding to dis|)ossfss an overlioldinif tenant, under t Win. 4. iij- ") Vie. ill. -if) — S/cd/i/isfniit.'] — A piirty cannot he piosccnlod under our criminal statute i »fc 5 Vic. ch. -."), lor stenlinir tVnit "urowinif in a jaitlen," unless tin- hoiiith of tlie tree lea.se. I. CONSTULCTION AND Ol'KRATION. 11. OtIIKR iNlATTEKS. IV. ch. 1, the jury found in favor of upon which the liuit is InuiLnnn he the landlord — the Court ri'iused to set within the uarden. M'-Dona/d v. aside the writ of pos;;ession isMi6d on ; Camcivu, iv. I . C. K. 1. that findiriL', and restore the tenant to possessio!!, on the i:rouiid that ihi- aj^i-nt of the landlord had received a month's rent alter the hndniir of the jury. W/i,L'lit V. Joliiisoii, ii. U. C. K. 273. 4 Wtii.W. ch, 1, (i/i/i/ir.'i ii third month, he trea- I. Construction and Opicration. Srr CovKNANT, I. f), 10. — Distress, I. 4. — Kjkctmknt, VIU. IG.— Fralds (Statltk of), L (i. }]''(i/(l " (/(■?// /.sv," ml. idi/i/ecd ntvc- ndntJ^ — 1. The word demise in a lease contains nn implieil covenant that the lessei; shall peaceahly enter and enjov. Sdiiiit v. Sliuiri, Triii. Term, ti .V 7 Wm. IV. CiH'nidnt Id ijiiii piriiiiscs at the r.r/iifdlioii of Itiiii.^ — "2. When a lessee took a lease of premises for two ted hv his landlord as an overiioldinl' ' >''-'''""'*.' '""I. covenanted to leave the tenan't, under 4 Wm. IV. ch. 1. Fem.ses without notice at the end ol Adiniix v. lidiiis, iv. \J. C. R. l:")?. 7. {.liid'fv : Does ihe statute 4 Wm. thai time: Ihh!, that on ejectment hrought hy the lessor at the end of the i term, th(> lessee could not set up a ch. l,sec. 5:J, apply in any case hut:,;,,.,,,,.,. |,..,^,. j,, ,,|,„^,,|,- ,;„. .^ to the plain one ol a tenant overhold- ins after the expiration of a term ex- pressly created hy contract hetween t'le parties \ lli. III. Di:.MANI) OF POSSKSSION AND NoTir K TO Ql IT. Hcc Ejkctmknt, 1. LAND TAX. Sec Taxes. loiif^er period. DiHilim. l\ nu/iitniv. Kent, Hil. Term, 7 Wm. IV. ll'o/v/\ " disnrs fn hi w liiir^'' those (if a jinsnit d( iiiisc.^ — J. The words '* ajirees to let or hire,"' are words ol'a pn.'sent demise, where the contrary does not appear to he the 'ntentioii in the instriiiiient in which they are con- tained. Cuinniin^ v. lli/l, llil. Term, a Vic. Lciisr not undri snd.] — 4. A lease fur life fur u nuimiial rent, not under m :m LEASE. LEASE. 265 seal, although it cannot pass a free- hold intprest, will operate as a lease from year to year, ami llic lessee can- not be dispossess' il williout six months' notice to quit. Doc dcm. Lunso/i v. Coutls, Easter Term, 7 Wni. IV. Covenant to pay rent, iirith comli- tion ihoo if tenant shoidd nuike a breach in, any of his covenants land- lord ••'ii'ht re-cnter.ll — f). Where the lessee covenanted to pay the yearly rent, and there was a condition in the lease "that if the tenant shdiihl do or omit anything in breach or non-jier- formanco of any of his covenants," (hen it would be lawful for tiie land- lord to re-enter : Held, that the ulTect of the non-payment of the rent upon such a demise would l)e to make it not void ipso facto, but only void upon proper proceedin;i;s boinL^ taken for that purpose ; and consecjuentiy, that until such proceeding's were taken, the term would subsist in the tenant, and the landlord co\:ld not mainlnin his t't't- in ejectment : Jlcld also, thai it wouhi be necessary for the tlefendant in the action of ejectment to shew that the lessee actually entered under the loaso, for until some one else be shewn in possession, huldlns; out the lessee, he must be retriinli'd as possessed of the term. Dor dent, Ki//L:'s College v. Kcnnrdy,\.l]. C. K. 577. Away-iining crnpj] — 6. In an ac- tion of trover l()r an away-goin;; crop, which the j)liiiMtilV CiHitcndcd he was entitled to under a covenant in his lease " tliii he should not sow fall grain in all fields now cleared in the third or last year of the lease," on provinjT that he had not sown tbej^rain in all \\\v. fields — the Court held,' the word all must be construed any ; that the lease therefore did not militate against the common law rule, and that the plainlilf was precluded '^roiii claim- ing the away-going crop. Cilmore V. L'Ockh.art et al., Hil. Term, 6 Vic. Cor.cnatit to pay rent rritliout dc- dvrtion, tj-c.] — 7. A tenant who cove- 2 L nants to pay rent without a deduction thereout, for or by reason of any mat- ter or thing whatsoever, cannot claim a deduction lor the amount of taxes paid by him for the house and pre- mises demised. Grantham v. Elliot, Mich. Term, 5 Vic. Aumj-going crop."] — 8. Where there is a stipulation in a lease for a term certain that the lessee shall de. liver up all the land^^ at the expiration of the lease, all question as to custo- mary right to the away-going crop is excluded ; and sendde, that there is no custom of the country as to away> l^oing crops in Upper Canada. Bur- roars V. Cairm et al., ii. U. C. R. •288. II. Other Matters. See Arrest of Judgment, 8. — Bills of Exchange etc., VI. 2. — Bond, II. 15. — Distress, I. 4, 5.- -Midland District Turnpike Trust, 2, 3. Lease for lives by tenant in tail — Death icithout issue determines tlie A'rt,sr.] — 1. Where a tenant in tail makes a lease for lives and dies with- out issue, the lease is absolutely deter- mined by lii.s death, so that no accep- tance of rent by him in remainder oi reversion, can make it good. The ac- ceptance by the remainderman of a yearly nominal rent, is not a confir- mation of the lease, especially whete the party disclaims holding as his ten- ant. Due dcm. Graham v. Njwton, iii. IJ. C. R. 249. Original lessee uhen compelled to pay rent after assignment of his in- frresf,rnn sue assignee.'] — 2. A lessee assigns his interest, and the assignee of the assignee neglecting to pay rent and to kee|) the premises in repair, the lessee is sueil by the lessor, who, upon being compelled to pay the rent and damages, sues the assignee o( the a* signee in a speci; -■ "tion on the case for the damage he had sustained: Held, that the lessee had a good right 4 266 LEAVE AND LICENSE. LETTERS. ;!'! of action on the case against the as- signee for the rent and damages he had been ol)liged to pay the lessor. Ash ford V. Hack, vi. U. C. R. 54- 1. Avcrmcf't nf considcratioH differ- ent from that contained in lease. ^ — 3. The averment of some consideia. tion or inducement for the making ol a lease other than the annual rents mentioned in tlie lease, is not necessa- rily a contradiction of the lease, and therefore bad. Mclntipc /. The City of Kingston, iv. U. C. R. 471. 4<. A plea averring some other con- sideration, must shew that considera- tion passed and executed before the giving of the lease. Jb. Breach of condition of lease — Plea of collateral satisfaction.] — 5. After breach of the condition of a lease, the acceptance of some collateral thing in eatisfaction cannot be pleaded in bar of the action on the lease. lb. Replication denying plea of li- cense — EtHdc?ice.'] — 3, Where in tres- pass the defendant pleaded a license, which the plaintiff denied: Held, that under such denial the plaintilf could not go into evidence that the license had been fraudulently obtained, but that if the fraud were relied upon, it should have been specially pleaded. Slee V. Graluini ct al., ii. U. C. R. 387, Covenant — Pica of a parol li- cense.] — 4>. In an action of covenant, a plea of leave and license by parol to commit the breach, is bail. Givynne V. Brock, Hil. Term, 5 Vic. LEAVE AND LICENSE. See Apprentice, 3. — Pleading, II. 27. — Seduction, 11. — Trespass, II. 28. License by defendant allowing slierilf to sell his goods on the jyrc- miscs.] — 1. Where the sheihf had seiz- ed gooda under a fi. fa. and allowed them to remain on the delendanl's premises on the um^erstanding that tl»ey should be sold there on a future day if the money were not paid before, the license thus given to enter on the premises and sell the goods accordingly, cannot be revokeil by the defendant. McGillis v. McMartin, i. U. C. R. U5. I^mg 2yossession to sJictv leave and license.] — 2. Whether long poswssion of an easement in land, though it may not supply evidence of a grant, may be received in support of a plea of leave and license. See Brown v. Utreet, i. U. C. R. 124.. LEGACY. See Will, C. Assent of executor — Trespass.] — The assent of an executor to a loiiacy may be by imi)lication as well as by ex|)ress words ; and where the testator devised his house to his wife for life, and also led her some personal pro- perty, and the executors in her absence entered the house to make an inven- toiy of the property, and afterwards turned out her daughter and shut the house up : Held, on trespass brought by the wife, that this was Kuttiricnt proof under the issue of excess. Jhnsfieraer v. Honsl/er^ir ct uL, Hil. Term, 7 Wm. IV. [The assent of an exerutor to a lieqiipst is not a matier ot law, but a question ol tact lor the jury. Mason v. Farndl, xii. M. it, \V. 674.] « LEGISLATIVE COUNCILLOR. Sec Parliament,2, et seq. — * — LESSEE OF THE CROWN. See Ejectment, I. 26. — »-^ LETTERS. See EviDBNCE, V.4i VII. 3.— Post Office, 1,2. LIBEL AND BLANDER. LIBEL AND SLANDER. 267 LETTERS OF ADMINISTRA- TION. See ExKCUTOR ETC., I. 1 ; II. 7. Lcttcrx smntcdhy Surrojsatc Court of Homr. District to cxrndor Ihin^ in Lnndon Dis/?-ict.} — Where to an action on a promissory note l)ro>icht by an executor, the defendant havinc craved oyer of the letters testamentary, (which had been {^ranted by tiic Sur- rogate Court of the Home District,) pleaded that at the time of the testa- tor's death the defendant resided in the London District, and that tiierefore the letter< testamentary granted by the Surroirate Court of the Home District were voiil, and the plaintiff demurred, the Court uavc judirnient acainst the demurrer. Kiu^ v. Clnris, Hil. Term, « LETTERS PATENT. Sec Crown Guant. — Patent. LEVY. See Costs, VI. 2; VIIL fi.— Exe- ci Tiov, 2. — FiF.Rt Facias. S. — Jimd.MENT, !). — Sheriff, V. If). LIBEL AND SLANDER. Sec Arriist, IV. 4..— Costs, 1(1). 9; Vir. 2.— Information, '3,i. — New Trial, IV, 1.. I. When maixtainable. H. Pi,|;a DINGS. III. P^VIDENCE. (1), Pnxif of slrnnfernj/x mnttcr as (ilh"j!.ed in. drc/ivntioii. (2), Ecidener gencmlly. \. WllDN MAINTAINABLE. Sec Pi.KAOiNi;, X. f). Action oiitiiiist a 'pctilionrr tu the LieutiiuuU Governor coiicertnug the conduct of a public officer.'] — 1. An action for libel will not lie against one of the signers of a petition to the Lieutenant Governor, alleging that the plaintiff as a commissioner of the Court of Requests had acted corruptly and partially, although the charge turns out unfounded, and the defendant ob- tained signatures to the petition of individuals who knew nothing of the charge contained in it — such a petition being a highly privileired communica- tion. Stanton V. Andrcws,Tx\n. Term, G & 7 VVm. IV. 2. But a complaint addressed to a public body or to government respect- ing the conduct of an officer, whose conduct such public body or the gov- ernment may have the power of con- trolling, is not necessarily a privileged communication. That depends on the motives with which the communica- tion was made. Corbett v. Jackson, i. U. C. R. 128. 3. An action for a libel contained in communications made to the executive government with a view of obtaining redress, cannot be sustained, unless it can be proved that the party making them acted maliciously and without probable cause. Rogers v. Sj)alding, i. U, C. R. 25S. A clerk in an office telh the prinn- jvd tliat another clerk is rol/hing hini.j — 1'. Where the defendant, a clerk in the Recfivi r General's oirice, told his princi|)nl that the plaintifl", another clerk, liad robbed him (the R. G.,) there being no j»roof that any money had been stolen, or that the Receiver General had ever suspected it: Held, tliat such communication was not pri- vileged. Frentice v. Hu7)iilton,T)ra. Rep. -110. [Also case 10, infra.] Jtn'nt pidilieatimi of a /ibel."] — 5. A joint action intiy be maintained anaiiisl several persons for tlw. joint publiciition ofa libel. Jimicn v. Fir/n/ et U., Easter Term, 2 Vic. 268 LIBEL AND SLANDER. LIBEL AND SLANDER. Mag rath, Jurisdiction — Words imputing crime in a British colony.'] — 6. An action will lie lor words spoken in this province of a person imputing to him the commission, in a colony subject to the British criminal law, of a crime punishable by that law. Malloch v. GraJiam, ii. 0. S. 341. 7. It is actionable to charge a man with having committed a felony in a foreign country. Smith v. Collins,m. U. C. R. 1. Words imputing arson.'] — 8. An action cannot be maintained for words spoken imputing the crime of arson to the plaintiff, where from the evidence it appears that the burning of the building of which the plaintiff was accused would not have constituted Buch crime. McNidt v. Trin Term, 7 Wm. IV. Slander of title spoken in assertion of riglit.] — 9. An action for slander of title cannot be maintained Wnen the alleged slander is spoken bona fide and in assertion of right. Bonlton et al.v. Shields, iii.V.C.R. 21. Effect of words being lihellous per se, irrespective of any office — What words are libellous per se.] — 10. Where a paper contains matter which is grossly libellous per se, and without reference to any particukir situation or office to make thorn so, it is no ol». jection to a verdict lipon such libel; that the office mentioned in the deria-; ration was of an inferior grade; that it was not sufficiently ])nno(l that the plaintiff held auch office ; that there was no such office in fact ; that no proof had been adduced that the per- son mentioned in the declaration as principal in the ollice was so in fact. Nor is an objection that the lilu'l does not support the innuendoes supjioricd by shewing that there was other mat- ter in the libel not set out in the decla- ration, indicatinjt the defendant's rea- son t<>r publi^hing it. Nor is sncli liln-l pxcusc(l on pretence of its being a formal application to the head of the] department for address of grievances. And charging a person with violating a public trust, ar ; words libellous per se, and do not require connection with any particular oflice. An office may be introduced as an explanatory circum- stance. Jones V. Stewart, Tay. U. C. R. 626. [Everything printed or written which re- flects on the character of another, and is published without lawful justification or ex- cuse, is a libel, whatever the intention may have been. Per Parke, B. — O^Brien v. CU- ment, xv. M. & W. 435.J II. Pleadings. Sec Amend.ment, II. 3i. — Plead- i.\G, I. 1 ; VIII. 3. Declaration on words lihellous per sc.] — 1. When words are libellous in tiiemselves, it is not necessary to aver that they were spoken of the plaintiff in any particular character, or in re- (erence to any particular fact. Bell V. Sfeinirt, Easter Term, 11 (ieo. IV. Construction if word " charged" — I/idi'cn/ent tif prefatory matter and colloi/iniirti. to support innuendoes.] — 2. Held, in an action ot' siaiuler wberc the declaration contained three counts, the 1st, charging that the defemdant iiitendinir to cause it to he believed that the piaintitV had been nuilty of sodtfiiy, in a discourse which the de- fendant then had of and concerning the plaintilV. spoke the words tollow- iiii:: " I saw Peter (meaiiinL' the plain- tiff.) with the heiliMv' (nieaninc that the defendant saw the plairuff commit till' crime •»!' sodomy with tt»t? liciffr). The "Jml count chargimr, that the de- i't'iidant inlendin;.' as juoirsaid, in a ci'itain other discourse wliicli he then had of anil conceniint: the plaintilV, s])oke till- followiii^r words; " I saw I'eter with the heill'r just at the cross way," (mcaninu; that the defendant saw the |tlaiiititrtheii commit the crime ol sodiMuy with the defendant's heifer. j The 3id count, charting that the de- I fendant further contriving as aforesaid, LIBEL AND SLANDER. in a certain other discourse which the defendant then had of and conceniing the plaintiff, spoke, iV:c., the words fol- lowing: " I iiave seen Poter Joiinson with my heifer ; Peter Johnson is the man that did it, an 1 I can swear to within a foot of the ground where ho stood when he committed the crime aforesaid," — tliat the declaration was bad, in arrest of judgment, on tiie ground that the word " charged" in the various counts, did not of them- selves import what was intended as their meaning, and that there was no sufficient inducement or statcmont of prefator)' matter, to which the iniiuen- does in the declaration could refer. (Robinson, C. J., dissentionte). John- son V. Hedge, vi. U. C. R. .'i.'J7. [The in(luc-cm(.'iit is that statcmrnt of pre- liminary facts which is iiece-sary to tiuike the charge understood. — I'l-r Lord Abin^cr, C.B., Wright V. Siimson, ii. M. & W. 711.] Reference hy eolUvmium to tjiilitce. mc«/..] — 3. Qiuere: In an attion of slander, as to ilio degree* of certainty required in making the collo(|iiiiim re- fer to the inducement — See Matter v. JD%, iv, U. C. R. 411. Demurring to some /'■rrrfls ns not actiomib/e, ir/ten o/lirrs crrtainh/ (ire,'\ — 4. A defendant will not he Jtilowcd, in an action of slander, to single out some of ihc words of a count, and tie- mur to thcin as not heinL' aciionaltie. while the same count eoiitaiiis other words uttered in the same conver- sation whidi are clearly actionahle. (Maraulav, .T., ilissentieiuc). Tinjfnr V. Ctirr, iii. IJ. C. R. ;<(»ti. CItorge nf (I'fniuditigtlir pvhlir — Avermrnt of h'li/r or oi(iii 'n a inil'iiMicd sense, by an innuendo that " he tlie plniittifl' iiad deiVau lieen the cause of \ bis nnn'iier, and his blood lies upon ^ your head,'' nii\ining thereby, that the I plaintilV had feloinnusly murdered the 3^! 270 LIBEL AND BLANDER. LIBEL AND SLANDER. said A., and the defendant demurred, because the innuendo was unwarrant- ed by the cimrgc — liie Court lield the declaration good, because it was for tlie jury to dclermine whether the words charged were spoken in the sense imputed to tlieni. Jackson v. McDon. aid, i. U. C. R. 19. III. Evidence. (1), Proof of simulrrnuf' 9nattcr as alleged in declaraliun. See New Tiual,II. I'i. — Variance, 3. Imjnitotion of arson — Words not sup]>orted by proofs — 1. Wiiere in case for slander tiie words laid in the declaration were, " he (moaning the plainlilf) burnt my barn " — meaning thereby that the plaintitT had feloui- oiisly burnt the barn of the defendant — and the words proved were, " there is the man that burnt my barn, if he were not guilty of it, he would not carry pistols:" it was held that the words proved did not support the declaration, and the Court directed a nonsuit to he entereJ. Vankcurcn v. GriJIis, ii. U. C. R. 423. Words hdd, ^'you robf)ed. the mail ;" proved, " / 7icrcr roljlied the mc.i/,li/ce yo?<."] — 2. Where in a case for slan- der the words laid were, " you robbed the mail," and the words proved, " I never robbed the mail, like you," held fatal. Williajns v. Me.Bcan, Mich. Term, 2 Vic. I Wards laid. 7tegaf.iied Inj evidence.'] • — 3. On a declaration in case for de- famation the plaintifl' set out as in- ducement that he was treasurer of the Ottawa district, and stated the words j spoken to be, " that ho was guilty of | the crime of perjury in a certain return | which he made to the Inspector Gene- \ ral of monies collected in 1839, 1840 j and 1841 for the erection of a Lunatic { Asylum, and the innuendo was, " that ! the plaintiir in performing his duties! of the office of treasurer, had made a false return under oath to the govern- ment of the nmoimt of assessments recirved by him." At the trial, the witnesses stated that they understood the words to mean that the plninlilf had sworn that he had j^aid over monies that he had not paiil over ; and after verdict for the plaintiiT a new trial was granted without costs, as the meaning laid in the declaration was negatived by evielencc. Johnston v. McDonald, ii. U. C. R. 20!>. Charge, " he hurnt Knurl's hcnni^ omitting some leords.] — 4. Where in an action lor slander the /d gene- red ly, not supported hy pnuf of n Ixind for the conveyance sts, as the ration was 'oJinston V. !». v;'.'! I/cru," Where in derlaration :li sayin;^ of ox's l)arn," inso one of him," and iicsc latter : Qiteerc, il varianco ntl proved I R. aSO. vds them- >/l(Kp(ii(i)i.'\ ntrodiiction it tile ilofen- jurse which rerning the? mint; a cer- s of the late , which liad luhhshed of liir, " and of barn,*' tiio Is iVc, " he /, tiiat mere lyin;^ of tiio x's barn," o(|uiuni re- , was insiif. 1)0)1(1 penc- 'if of II /xDid I Itciiiii sto. declaration, is case, lay- >■ the plain- vithout any LIBEL AND SLANDER. inducement as to what description of bond it was, is not supported by proof of the plaintiff's having surreptitiously taken a bond for the conveyance of land to the plaintilT, which he liad pre- viously delivered up to be cancelled, llie latter not being actionable under 2 Geo. n. ch. 25. Caccdcy v. Caver, h'lj, iii. 0. S. 338. (2), Evidrii'T grnerallij. Sec Nkw Tuial, II. 8. Eviife/iff' loifirr sxencral issue, the vnn/s briirj; pn)cv(I.'\ — 1. Semblc: That under the general issue in an ac- tion l()r slander, when the words are proved, the inference of malice may be repelled. MeXdh v. Magrath, Trin. Term, 7 VVm. IV. Adinissiliilitif nf evidence taidcr the generiil. issur.^ — 2. In case for libel the truth of the defendant's remarks on the report of a trial, and the evi. deuce given thereat, is not admissible under the general issue. Small v. BPKe/izie, Dra. Rep. 183. Whe/i, necessary to find tnalicc on the face nftlie ciidencc.ll — 3. In case for slander the defendant may, under the general issue, shew that the words spoken were used in a privileged com- munication ; and where the words im- puted slanderous were spoken on an occasion when, either from public duty, private interest, or the relation of the parties to each other, the character of the party complaining may be freely discussed, the jury must find express malice upon evidence sullicient to warrant their finding before the defen- dant can be pronounced guilty, liich- ards V. lioulton, iv. O. S. 95. Evidence under 'p^ea of " not gui/tf/.-^] — l'. All the circumstances immediately attending and preceding the speaking of the words, in slander, may be given in evidence by the defen- dant under the plea of not guilty. Kcegan v. liobson, vi. U. C. R. 375. LIKN. 271 Slander of an apothecary — Evi- dence to prove his being an apotlieca- ry."] — 5. Where in an action brought by a person describing himself in the declaration as a druggist, vendor of medicines and apothecary, the wit- nesses proved that several persons practising physic had purchased medi- cines from him, this evidence, upon a motion for a non-suit, was considered suflicient to support the verdict. Ter- ry V. Starkweather, Tay. IJ. C. R. 68. I Proof to support the imliicemeiit of a party bfiiis a physician, see div. If. 8, supra ] lit mitigation ofdamagcs.'\ — G. In an action for slander, the defendant may give facts and circumstances in evidence in mitigation of damages. Jolmson V. Eastman, Tay. U. C. R. 327. Proof oj innncudoes not necessary.'\ — 7. A mere innuendo is a thing in its nature not requiring any proof. Caver- ley V. Cavcrley, iii. 0. S. 338. LIBERUM TENEMENTUM. Sec Covenant, 11(2), 4. — Trespass, II 8 "'> LICENSE OF OCCUPATION. See Ejectment, I. 6, 15. — « — LIEN. See Demurrage, 2. — Elegit, 1. — Judgment, 14>, 2(). Builder.'] — 1. A builder has no lien upon a house built by him on the land of his employer lor the price of the building. Jiilinson v. Crciv, Trin. Term, 6 k. 7 Wm. IV. [No lien exists at common law for the ajjistmetit of milch cows. Jaikson v. Cum- mins, V. M. & W. 342.] Loss or waiver of /ien.] — 2. A. sends a waggon to B. to make the wood work.— B., having finished the wood work, sends the waggon in A.'s 272 LIMITATIONS (STATUTE Or). LIMITATIONS (STATUTE OF). name for the iron work. — B. gofs the wairgon back nuain (Vo:ii llu- lilarU- smilli's. — A. calls lor tlio \vaL':;oM. — B. allows liiin lo remove tlu* hox ol'tlio wagiTon into l!ic liiuliuay, hut on liis returuint; to tlu; sliop to tJikc out tlii' runiiint; i)art ol'tlie wriL'iion, }], rol'iisi's to let it go till he is paiil liis Mil. — \. holds ill his hands a (juaiitity of notes, and oilers to pay I), his deinand ifhc Would tell him what it was, 15. would not name any slim, and insisted upon dotainina; the waL'i.'on: Jlc/if, that B. by sending the watruon to the black- smith's had not lost his lien, bul that the lien revived u|)oii his again obtaiiiini: possession ol' the wagaoii : 7ArA/ d/so, that B. allowing A. to remove the box of the waggon into the hiyhuay was no waiver of his lien. Milium v. Milburn, iv. U. C. K. 17.9. LIFE ESTATE. See EsT.VTE, passim. — Will, 7. LIMITATIONS (STATUTE OF). I. Operation gknt.rai.ly. II. Effect on Claim to Realty, AND HOW the Statute may be AVOIDED. III. Effect on Right to Personal Actions, A XD HOW THE Statute MAY BE avoided. IV. Pleadings AND Evidence. I. Operation generally. When statute begins to run aqdinst ai)scntccs.'] — 1. The Statute of Limi- tations does not run against a plaintilT absent from the province at the time the cause of action accrues, nor until he comes liere. Forsyth ct al. v. Hall, Dra. Rep. 30*. Effect of subsequent disabilities ivhen statute begins to run.^ — 2. When the Statute of Limitations once I begins it continues tonin.notvvithstancl- iiiL' any ^'llbse(|uont disability. Doe ildii. Dixua V. Grant ct al., iii. O. S. oil. [So Rlindi'i V. SmrVnmt, iv. M. & W. 42, adiiincd in error, vi. M. & W. 351.] I A'jnind the Crown.'] — 3. The Sta. i lute of Limitations does not run against till' Crown. Due dem. West v. How- ^aidrial., Ilil. Term, 7 Wni. IV. I Plaintiff resident in England, his ^agent in tiiis province,'] — i. The de- I I'endant pleads the Statute of Limita- tions ; the jilainlitr replies, absence in Kiigiand ; the delendant rejoins, that the plaintilV has an agent in this pro- vince transacting his business,and that : he mi::ht have sued : .//"r^/, that this I ivjoiiuler would not give the defendant the benedt of tlic statute. Lane v. Stcnnclt, iv. U. C. R. 44.0. n. Effect on Claim to Realty, and how the Statute may be AVOIDED. See Crown Grant, 16. — Deed, IV. 2. — Dower, II. 4, 5. — Landlord AM) Tenant, 1. 5. — Side Lines. — Title, 17. 4 Wm. IV. ch. 1, sec. 17, retro- spective.']— I. The statute 4 Wm. IV. ch. 1, sec. 17, has a retrospective ope- ration, and applies as well to land grant- ed and unoccupied before as since that statute. Doc dem. B'IcKay v. Purdy ct al., Easter Term, 4 Vic. 59 Geo. III. ch. \^^docs not suspend the oj^eration of the Statute of Limi' tations.] — 2. The operation of the Statute of Limitations is not suspended by the .')9 Geo. III. ch. 14. Wher? twenty years' possession has followed a division of adjacent lots, ejectment will not lie, although the division may have been inaccurate. Doc dem. Slew- art v. lltu/ich, Tay. U. C. R. 679. Forfeiture bi/ a traitor of his pro- perty, part of which had been occupi- ed by anoUierfor nearly twenty years LIMITATIONS (STATUTE OF). LIMITATIONS (STATUTE Or). 273 f ' hrfnrp such forfeiture, but more tJuin twrnti/ yrtirs hc.fitrc (jectmcnt,^ — 3. A. arul U. havini!; received grants from the Crown (or atljoinini; lots, A. inad- vertently occupied, fenced and improv- ed a portion of B.'h lot, according to the mode of running side lines pre- scribed by f)}) Geo. III. ch. l-t, be- lieving it to be a |)ortip. 386. [Sre cas(>s 20, 21, 22,25, 26, inf ;i.] Adrrr&v possmsloH, for twenty years —4. Wni. IV. ch. 1, sec. oi.]— k When in ejectment it is necessary to leave the (pieslion of adverse posses- sion in tiie defendant for twenty years as a doubtful |)oiiit to the jury, it is not a case in which a jilaintiH' can be al- lowed to remedy legal defects in his title by avaiiinir himself of the provi- sions contained in -i Wm. IV. ch. 1, sec. O'i, and £?iving notice to tiie de- fendant as an intru(ler, or one having no claim, or color of claim to the pos- session. Due dcm. Lyons v. Craw, ford, Easter Term, 5 Vic. Siiccrssirr trcspnxsrrs — 4 Win. IV. ch. l,.sY/;. r)'2.] — Qurere: The eflectof a succession of trespassers taking pos- session of deserted land at intervals, and not claiming under each other? The application of the + Wm. IV. ch. 1, sec. .t2 ? Dor dcm. Baldwin v. Stone, v. U. C. R. 388. 2 M W/iat a permissive, not adverse poS' session."] — 5. Where on a quedtion of adverse possession it waa proved t'lat a line had been agreed on by the pro- prietors of adjoining lots, by which they agreed " to abide as long as we live, and if our children find it wrong they may correct it:" Held, that this was a permissive occupation, and could not be considered as an adverse holding. Doe dcm. Mitrneyctal. v. Markland, Mich. Term, 6 Vic. Permissitw jwssession — The effect of it at the end of twenty years.] — 6. Qneerc: As to the eflfect of the Statute of Limitations when the twenty years' possession has not been an adverse one, when a person has gone into posses- sion with the consent of the plaintiff*, as an act of kindness on his part, and has remained there under the same assent, paying no rent, and acknow- ledging no title. Doc dcm. Smyth v. Leavens, iii. U. C. R. 411. Twenty y ear s^ possession, adverse or permissive, gives a title.] — 7. Where A. has been twenty years in posses- sion, paying no rent, and signing no written acknowledgment of title in another, such possession, whether it originate adversely to the claims of the true owner B.,or with his permission, operates, under the Statute of Limita- tions, to extinguish the title of B. and vest the title in A. Doe dcm. Perry ct al. v. Jlcfulerson, iii. U. C. R. iSb. Verbal ac/cnowlcdgment insufficient to save the statute.] — 8. Held, that a verbal acknowledgment of title by A. in B., made during the twenty years would not save the statute. lb. Acknowledgment in ivriting after twenty years insufficient..] — 9. Held also, that A.'s acknowledgment in writing after the twenty years could not have the effect of reviving a title which the twenty years' possession had extinguished. lb. Judgment in ejectment after twenty years insufficient^ — 10. Held also, that a judgment recovered by B. against ^^ ^"^ ^> IMAGE EVALUATION TEST TARGET (MT-3) .<^^^,^.^^ LO 11.25 Ui lii 122 •« |4£ 12.0 wuu 114 11.6 ^^ ^>' '/ Photographic Sciences Corporation 23 WIST MAIN STMIT WnSTn,N.Y. I4SS0 (716)I73-4S03 f ..jjj'?>jyi miii.w!.»rirnF»iiM iip|.iir ^u}, [DrMrngB^^smmammmsmHmmm 274 LIMITATIONS (STATUTE OF). LIMITATIONS (STATUTE OF). HHf; ih; li A. after tYie twenty years had expired would not save the statute ; aliler, W recovered ivithin the twenty years, and A. willdn the twenty years had been dispossessed upon such judg- ment, lb. [See ilso case 17, infra.] Conicyance of part of lot %nthin twcnt ■ ;jf:ir$ of no effect. \ — 11. Held, also, * • u. conveyance by B. to A. within ti'-: v; e.ify years of part of the lot in disi' ite would not save tlie sta- tute, his deed to A. being no written acknowle gniont on the part of A. of B.'s title. lb. £ayment of taxes by jmrty in. pos- session,'] — 12. Held, also, that the fact of A.'s paying the taxes by B.'s direction is no bar to the statute. lb. Possession nndcr contract to jnir- cliasc.] — 13. Held, also, that A. com- mencing his possession by the permis- sion of B., and upon a contract to purcliase, B. must be held as in the actual possession of the land, through his tenant at will, A., and as being dispossessed at the end of the first year's tenancy, and that therefore the 17th section of our Provincial Statute of Limitations would apply so as to bring B. within its operation. lb. [See also case 24, infra.] Party in jjossession oceiqyying as servant ■'l — H. Scmble: That if A. could have been shewn to have been occupying the land as the servant of B. during the twenty years, and not for his own use or benefit, the statute would not run. lb. [Occupation of a son — See case 19, infra.] Possession under agreement topur- thase — Default — Conveyance to third party with dcfaidter''s knowledge.'] — 15. A. the owner of land, agrees to sell to B. — B. goes into possession and fails in making his payments. — A. then conveys the land to C. in B.'s pre- sence, and apparently with the con- sent of B., who says that he will at once leave the place. — B. neverthe- leiB continues uninterruptedly in pos- session for more than twenty years, paying C. no rent, and making no written or other acknowledgment of C.'s title: Held, that B.'s twenty years' possession, under these circum- stances, gives him the legal title. Doe dem. Ausman et at. v. Minthorne, iii. U. C. R. 423. Notice to quit fro7n C. to B. within twenty years no bar,"] — 16. Held aim, that a notice to quit from C. to B. within the twenty years does not save C. from being barred by the statute. lb. Judgment within tiventy years, no proceedings being taken thereon, no bar.] — 17. Held also, that a judg- ment in ejectment recovered Ij C. against B. williin twenty years, but upon which B. had never been dispos- sessed, is no bar to the statute. lb. Voluntary delivery of possession by B. to C after twenty years.] — 18. Quare: If B., in undisturbed posses- sion for twenty years, voluntarily re- stores possession to C, can B. turnC. out again by reverting to his title under the act? ib. Son as against his father after twenty years' possession without ac. Icnou-lcJgme/it.] — 19. Where a son has been allowed by his father to re- main in possession of land for twenty years, and it cannot be shewn that he was there as the servant or agent of his father, or has paid rent within the twenty years, or had acknowledged the father's title in writing, the father will lose his title, no matter what the verbal tacit understanding of both par- ties as to the real ownership might have been. Doe dem. Quinsey v. Caniffc, v. U. C. R. 602. When begins to run against realty mortgagee — How barred.] — 20. A patent was granted to A. of part of lot number four, and to B. of part of lot number five. More than forty years before action brought, a division fence had been run between what was then supposed the boundary line of MMITATIONS (STATDTE OF). LIMITATIONS (STATUTE OP). 275 lots four and five, according to which i the proprietors of the two lots had ever since respectively occupied. C,(the defendant in this ejectment,) holding under B.'s patent, claimed a part of lot number four, not as embraced in the patent, but as being actually pos- sessed by him and others before him in the title of B. as part of lot five, and so considered, both by the propri- etors of four and five until very re- cently. D., (the lessor of the plain- tiff,) claiming under A.'s patent, brought his action against C. to recover part of lot four, notwithstanding C.'s posses- sion of the part for more than forty years, hoping to do away with the ef feet of the Statute of Limitations by proof of the following facts. — A.'s pa- tent was issued in 1796 ; A. in Feb- ruary 1802 mortgaged in fee to E. to secure the payment of 825/. in Octo- ber 1802. In 1810, E. conveyed in fee to F. In 1829 the heir of F. brought ejectment against A. the mort- gagor, who had remained in possession since the mortgage of 1802, and re- covered. Nothing was shewn to have been actually done by cither of the parties claiming through A. to disturb C.'s possession under the old division line. But held, that the Statute of Limitations had commenced to run against A. from the time of B.'s pos- session of the land under the old di. vision line ; that neither the mortgage given by A. nor the ejectment brought against him, had any effect upon the statute, and therefore C.'s title, (the defendant in this suit), under the pos- session of B., must prevail. Doe dem. Dunlop V. ServoR, v. U. C. R. 28:"). Actual exclusive occupation of land necessanj.'] — 21. To enable (he Sta- tute of Limitations to operate in bar of the true title to land, there must be an actual occupation, to the exclusion of the real owner. Where, therefore, a parly having permission given him to occupy the west half of the lot, did confine himself, so far as residence and cultivation went, to that half, and only committed depredations on the other half — it was held, that he could not be considered as having exclusive posses- sion of both halves. Doe dem. Mc- Donell V. Rattray, vii. U. C. R. 321. Adverse possession of a certain en- closed piece does not extend beyoitdthc limits of such enclosure.'] — 22. Where A. and B. were proprietors of adjoin- ing lots, and B. had encroached for more than twenty years on part of A.'s land which was cleared, and B.'s fence which enclosed the encroached land would, if protracted, also have enclosed a portion of A.'s wood-land, which had never been fenced : Held, that B.'s adverse possession of the fenced land could not be extended to the wood- land which his fence, if protracted, would have enclosed. Doe dem. Hill V. Gander, i. U. C. R. 3. [See ako case 26, infra.] Conveyance by a Itoiatic — Undis- turbcd possession by bargainee, till statute confirmed his title."] — 23. In 1822, A., a maniac, conveyed land to B., who then entered into possession. A. died in 1826. — C, his eldest son and heir, became of age in 1829. — He died in 1829, and his brother and heir, D., (the lessor of the plaintiff), became of age in 1831, and brought his ejectment against B., on the ground that his father was non compos at the time of his executing the deed in 1822. D. brought his action more than ten years allor the lunatic died, and after he himselfcameof age, and more than five years after our statute 4 Wm. IV. cli. 1 : Held, that D., under these facts, was barred from recovery by the Sta- tute of Limitations ; and held also, that B. could not be considered in posses- sion as the servant or bailiff of the lu- nati c . Doe dem. Silvertlwrn v. Teal, vii. U. C. R. 370. Tenancy at mil — When statute cnmmenccd to run before the passing of 4. Wm. IV. ch. 1.]— 24. A., in 1817, makes an agreement with B. to purchase land, and is let into posses- 276 LIMITATIONS (STATUTE OF). LIMITATIONS (STATUTE OP). slon. — B. dies before the passing of the provincial act 4 Wm. IV. ch. 1. — C, the son of A., makes a bargain with D., the husband of the lessor of the plaintiff, to whom B. had devised the land, and fails in his payments, upon which an action of ejectment is brought to dispossess him, and is discontinued at his request in 1834 ; after this, the lessor of the plaintilT brings her action of ejectment : Held, upon these facts, that A. became a tenant at will to B. in 1817, that upon B.'s death his ten- ancy at will determined ; that that re- lation being at an end before the act 4f Wm. IV. ch. 1 was passed, the time which elapsed under such circumstan- ces was not to be taken into account as a part of the twenty years neces- sary to make a title by possession ; that the ejectment brought in 1834, while it determined the tenancy at will, gave no new starting point, and had no retrospective operation ; that the lessor of the plaintiff, by her con- senting to the defendant's remaining on the land, after the interview of 1834, revived the tenancy at will, and that as twenty years had not elapsed since that period, the lessor of the plaintiff was entitled to recover. Doe dent. Kingsbury v. Steivart, v. U. C. R. lOS. Twenty years' acquiescence in ati erroneous boundary.!^ — 25. Twenty years' possession, according to a certain lioundar}' line, will bar an ejectment brought to disturb such boundary, un- less a new survey can be made strictly in accordance with the provisions of 5r Geo. III. ch. 14. Doedcm. Mor- can V. Simpson, Trin. Term, 1 & 2 Vic. A division fence dispossesses the mvner only of the land actually en- closed.^— il6. Where A. had improved on the front of his lot, and laid a divi- sion fence between himself and his neighbor, so far as his improvemeii^s extended, which fence was found, upon a correct survey, to enclose part of the adjacent lot: Held, that though the Statute of Limitations might bar t|)^ owner of the adjacent lot from regaining possession of the portion of his lot which he had sullered his neiglihor lo enclose for more than twenty years, yet that would not affect the right of the latter to any other portion of his land not actually enclosed, as lie could not be held to be constructively (lis- possessed of that portion of his lot which the erroneous fence, if profracl- ed, would embrace. Doedcm. Beck- ett V. Nightingale, v. U. C. R. 518. Mortgage satisfied after ttcenty years' 2wsscssioH mbscqucnl to de- fault.'] — 27. When the mortgagor is in possession, a mortgagee may be pre- sumed satisfied when twenty years have elapsed from the time of the pay- ment of the mortgage money. Doe dem. McGrcL'o?- v. Haivhc, Easter Term, 7 Wmi IV. Possession of mortgagor tinder 21 Juc. I.]— 28. Under tlie'^old Statute of Limitations, 21 Jac. I., the possession of the mortgagor, when not adverse, would not bar the mortgagee. Doc dem. Dunlop v. B'lcNab, v. U. C. R. 289. Conveyance in fee by moiigagec when mmtgagor in i)ossc.ssio)i.'\ — 29. The mortgagor being in possession at the time of a conveyance iii fee by the mortgagee, is no objection to the con- veyance — the doctrine of disseisin not applying as between the mortgagor and mortgagee. //;. If entry be not made on default, mortgage uill be presumed satisfied.'] — 30. When interest on a mortgage has not been paid, and the mortgagee has never entered, it will be presumed that the money has been paid at the day, and consequently, that the mort- gagee has no subsisting title. lb. If entry be not made uithin titcnty years, nor interest paid, title in mort- gagor.] — 31. Where a mortgagee has neither taken possession of the land mortgaged, after default, nor received (lugh •the ears, htof his ■ould (lis- lot rnct- hxk- )18. LIMITATIONS (STAT»JTE OF). interest upon the mortgage money with- in twenty years, the title is in the mortgaiior, and the morlgngee, if suing in ejectment a third party in posses- sion, may be non-suited. Doc dnn. McLeafi rt al. v. Fish ct al., v. U. C. R. 29;-). Disseisin of 9?iortgagcc by mortga- gor''s ]iosscssio/i "] — 32. Neither the mortgagee nor his assignee can be dis- seised by the mortgagor continuing in possession. Doc dcm. Carey ct al. v. Cumberland, vii. U. C. R. •i94i. Disseisin of mortgagee by the 2)05- session of '>m>rtgagor''s heir,^ — 33. Where the heir and the widow of the mortgagor remained in possession lor more than twenty years after the deatii of the ancestor, but had frequently re- cognized the title of the mortgagee : Held, not to be a disseisin. Doe dcm. Dunlap V. M^I ugal, Tay. U. C. R. 640. III. Effect on Right to Personal Actions, AND HOW THE Statute MAYBE AVOIDED. See CoNTUACT, 2. When the statute begins to run on a note j)ayablc to bearer. '[ — 1. The right of action on a note paj'able to A. or bearer, does not accrue to a third person as bearer till an actual delivery to him; and when C, being in the United States, purchased a note paya- ble to bearer, and on his coming into this province got possession of it, and brought an action upon it, to which the defendant pleaded "actio non accrevit infra sex annos," and the plaintiff re- plied, he was in foreign parts when the cause of action accrued : Held, that the facts did not warrant a verdict upon this issue for the plaintiff, as the cause of action accrued to him when he re- ceived the note, which was withm six years and within this province, and not when he made the purchase in the Ui/ited States. Shaw v. Matthison, iii. 0. S. 74. LIMITATIONS (STATUTE OF). 277 Case for f raifduleitt misrepresenta- tion — When statute begins to run.'] — 2. In case for iraudulent misrepre- sentation, the Statute of Limitations begins to run from the time of the mis- representation, not from the time of its discovery. Dixon v. Jarvis, Mich. Term, 2 Vic. Exception in Jac. I., extends to ac- tions of account only.'\ — 3. The ex- ception in the Statute of Limitations extends to actions of account, not to actions of assumpsit on open accounts. Bttssell ct al. v. Robertson, .'. U. C. R. 235. Evidence necessary, generally, to take a case out of the statute] — 4. To lake a case out of the Statute of Limi- tations, slight evidence is sutlicient, but the recognition of liability must oe un- equivocal, or the promise must be iin- conditional, or the condition perform- ed. Carpenter v. Vanderlij), Easter Term, 3 Vic. Acknowledgment by an executor.'] — 5. An admission by an executor that a promissory note, barred by the Sta- tute of Limitations, coupled with a statement that it could not be paid for want of assets, and that if there were assets it should be paid, is a conditional promise merely, and not sufficient to lake the case out of the statute. Lamp- man ct al. v. Davis et al., i. U. C. R. 179. 6. An admission by an executor of a debt due by his testator is not suffi- cient to take the case out of the Sta- tute of Limitations, in an action against the executor without an express pro- mise on his part to pay the debt ad. milted ; but an account stated by an executor of a debt due by his testator, which had never before such account- ing been ascertained or determined, ia sufficient to charge the executor as a substantive debt, without any promise to pay. Watkins v. 'Washburn, ii. U. C. R. 291. Sufficiencif of admission by party indebted, when presented vnth the iS^ji ,,. ;■«. ' iM i'' *l mi' 4m 27S LIMITATIONS (STATUTE OF). LIMITATIONS (STATUTE OF). account.'] — 7. A statement of a party upon being presented with an account and payment dennondcd, " that he was satisfied the anjount had been paid to the plaintilT'a agent, that the agent had been in the habit of having large tran- sactions with him, and was more fre- quently in debt than otherwise, but that he could not see how the matter stood, as he had not his books to refer to :" Held, not to be sufficient to take the case out of the Statute of Limitations. McCormack v. J5c;rc?/, i. U. C. R. 388. 8. A statement by a defendant " that he did not think he owed the money, and that if he did the Statute of Limi- tations would prevent the recovery, but that he would give tlie plaintilV fifty dollars rather than have any trouble about it," is not sufficient to take the case out of the Statute of Li- mitations. Spaldins; v. Parker, iii. U. C. R. 66. Wluit is an open accmint.'] — 9. Quare: When can an account be considered an open unsettled accouni, 80 as to defeat the operation of the Statute of Limitations, by the latter items in the account drawing the others with them ? Hamilton v. Matlhcus, V. U. C. R. 148. \Micn the ]m>ic?p/e of later itema draieing others leit/t them, is not ap- plicatjlcJ] — 10. The principle that the later items of an account draw the others alter them, and thus save all from the Statute of Limitations, docs not apply when quarterly payments, (e. g. for rent or tuition), as for a late specific independent quarter due at the time of payment, unmixed with items for any earlier quarter ; the presump- tion in such a case is, unless the con- trary be shewn to be the fact, that the earlier quarters have licon all paid and satisfied. Ki/i:j;\s College v. Mc- Dmgall,v. U. C. R. 315. " Siijjicicncy of admission.'] — 11. Held, that a conversation in which the defendant admitted " that the plaintiff I had a judgment against him, that he '■ (the defendant) had no means of pay- \ ing it, but that if they would be reason- : able he thought his I'riend could assist ] hii.i, adding, that he wa.^ entitled to I some credits, which the plaintiff had ' not allowed him, and that if they would : accept land, he thought he could man- ] age to pay them 1000/. in that way," ■ coupled with a letter, in which the de- ' fendant proposed to the plaintiffs to make ovcr to them for tlieir claims against him about 600 acres of land, was suffic- nt admission of a debt of 1000/. r er the account stated, to take the case out of the Statute of Limitations. Bnsscll ct al.v. Crysler, v. U. C. R. 484. JVotc — Proniise to j)ny hy one joint and several maker.] — 12. A promise to pay by one of several joint and seve- ral makers of a note, will take the case out of the Statute of Limitations. Sif- ton v. McCabc ct al., vi. U. C. E. ;J94. [So will the payment of interest by one of two niakers. — C/umnel v. Ditchburn, v. M. & VV. -li)!.] Sufficiency of admission.] — 13. Held, that the following admissions of thetlofi'iidatit, " The notes are genuine ; , that is, I made them ; but I am under ' the impression that they were paid I through Messrs. A. and B., and I don't ! think I am called upon to have any further conversation with you about them," were not sufficient to take the case out of the Statute of Limitations. ' Grantham v. Foicell, vi. U. C. R. 494. \ Admissions hy an attorney of monies being rceciced for his client.] — 14. [The following answer of an attorney I to his client, when demanding payment of the monies left for collection, "that the debt had not been paid, and that the defendant had no property, and that he (the attorney) could not help the debt being unpaid," not contain- ing an express promise to pay, or ad- mission from which a promise could ^ LIMITATIONS (STATUTE OF). LIMITATIONS (STATUTE OF). 279 be implied : Held,x\oi sufficient to take the case out of the Statute of Liiui- tations, though it was subsequently proved that at the time of such answer the attorney had collected the client's debts. Dou^fill v. Cline (^executors o/),vi. U. C. R. 546. [The provincial statute 13 & 14 Vic. ch. 61,. sec. 1, enacts, amon;; other thinits, that in all actions on simple contract (of the nature menlioneil in the preamble o( the act) no acknowledgment or promise by words only shall be deemed sufficient evidence of a new and continuinjj contract, to take any case out of the Statute of Limitations, or to deprive- any party ot the benefit thereof, unless such acknowledijment or promise shall be ma.le or contained by or in some wrilinic. si;^ned by the party to be chargeable thereby.] IV. Pleadings and Evidence. See Attorm:v, 11(3), 11. Pica.'] — 1. A plea of the Statute of Limitations concluding to the country, is bad. Baldwin ct al. v. ]\TLean, i. U. C. R. 222. 2. A plea of the Statute of Limita- tions stating that the causes of action, " if any such there were, or still are," did not accrue within six years, is had on special demurrer. Meyer w. Burke, Hil. Term, 6 Vic. 3. Where in assumpsit on a promise to indemnify, the defendant pleaded that more than six years had elapsed since the promise accrued, the plea was held bad on general demurrer. Ives V. Ives, Trin. Term, 3 As 4 Vic. Replication to plea of, by shcrijf.'] To a plea of the Statute of Limi- tations in a.ssumpsit, a replication that the defendant was a sheriff, and that the amount claimed was an overplus remaining in his hands of money le- vied under a fieri facias, was held bad on general demurrer, although the Klaintiflf might have evaded the statute ad she declared in case, setting out the circumstances specially. Rug- gles v. Beikic, ii. O. S. 370. Plea, that both defendant and plain- tiff resided in a foreign country tvhen cause of action accrued.] — 5. A plea that the defendant and plaintiff were both rcr^identina foreign country when the cause of action accrued, and that by the laws of that country the defendant is discharged, because no action was brought there within six years, the defendant and plaintiff hav- iiig both resided there during all that time, was held l)ad on general demur- rer. Hart V. Wilson, Trin. Term, 2 & 3 Vic. Replication, that the plaintiff teas brynml the seas, Sj-c.] — 6. In a repli- cation to a plea oi' the Statute of Limi- tations that the plaintiff was in parts beyond the seas when the action ac- cruetl, a place where the plaintiff was must be alleged, or the replication will be bad on special demurrer. Hannay V. Bell, Mich. Term, 5 Vic. Replication, that the plaintiff was resident in foreign 2Mrts — Rejoitukr, that defendant resided there also.] — 7, To a plea of the Statute of Limitations in assumpsit on a promissory note, the plaintiff replied that at the time the cause of action accrued he was resi- dent in Lower Canada, and the defen- dant rejoined that lie was also resident in Lower Canada all that time, the rejoinder was held bad on demun-er. Simpson v. Privat, ii. U. C. R. 265. 8. To a plea of the Statute of Li- mitations the plaintiff replied absence beyond the seas ; to this the defendant rejoined, that after the making of the promises &c., and upwards of six years before the commencement of this suit, viz : on &;c., he, the defen- dant, was nt London in England, and where the j)laintiffs then resided, and continued there for ten days, of which the ])laintiffs had notice, and that the plaintiffs did not commence their ac- tion within six years after he had re- turned '■) Upper Canada. To this the plaintifls demurred. Held, demurrer good. Lane et al. v. Small, iv. U. C. R. US. 280 LIMITATIONS (STATUTE OF). LIMITS. Averment of promise to intestate not supported bij promise to the ad- ministrator. "^ — 9. Ill an action by an administrator, a replication of a pro- mise to tlie intestate, in answer to a pica of the Statute of Limitations, is not supported by proof of a promise to the adinitiisirator. Wright v. 3Ier- riani, JVIich. Term, 5 Vic. Rej^Iication that defendant resident in foreign, parts, i\-c. — Question for the jurij.l — 10. Where to a pica of non-assuin|)sit infra sex annos, a plain- titr replies the residence of the defen- darit beyond the jurisdiction of the court at the time when the action ac- crued, and tiie commencement of the action williin six yeais after the return ; the suificiency of proof of these facts is a question l()r the decision of the jury, and not a ground of non-suit. Jolmson V. Buchancui, i. U. C. R. 171. Aetion by hiishand and ivife — Rc- 'plication of absence beyond the seas — EvidenceJ\ — 11. Where in an action by husl)and and wife on a contract made vith the wile before marriage the dclcMidant pleaded the Statute of Limitations, to which the plaintilTs re- plied absence beyond the seas, and that they never had come into tiiis province, upon which the defendant took issue, and upon the trial it was proved that the wife had never been in this province, and it appeared she had been married in Scotland — the Court refused a non-suit to be entered on leave reserved, on the ground that it had noibeen shown that the husband never was in this province. Grciget ux. V. Baird, i. U. C. R. 472. Immatcriid issues.'] — 12. To a plea of the Statute of Limitations the plain- till" replied that when the cause of action accrued he was in foreign parts, &;c., and did not return to this pro- vince till the 1st of July 1846. The defendant rejoined that the plaintiff did not, on the day named, or at any time, return to Upper Canada. Upon this, the defendant proved that the plaintiff was not at any time in this province, and asked to non-suit the plaintiff: but held, that the issue was immaterial, and the defendant not en- titled to a non-suit. Crosby v, Collins, V. U. C. R. 546. LIMITS. I. Limits generally. II. Bond and Proceedings thereon I. Limits generally. Sec Clerk of the Crown and Pleas, 1, 2. — Ejectment, VI. 2. False Imprisonment, 1. — Insol- vent etc., 7. — Sheriff, I. 7. Who entitled to."] — 1. A prisoner in custody for contempt may have the benefit of the limits. Rex v. Kidd, Hil. Term, 6 W^m. IV. 2. Debtors in custody on mesne process, as well as on final process, may have the benefit of the limits. Montgomery v. Hoivland, Easter Term, 2 Vic. Demand of statement of effects — Service of rule nisi for commitment.] — 3. The demand on a debtor on the limits for a statement of his effects, if in writing, must be signed by the plain- tiff or his attorney, and the rule nisi for his commitment personally served. Mcighanv. Reynolds, \v. O. S. 19. Debtor rcilling to assign his pro- jiertjj to all his creditors, but not to one in particular, comnutted,] — 4- Where a defendant in execution on the limits, on demand from the plaintiff's attor- ney, gave him a schedule of debts due to him, and property belonging to iiim, amounting to more than 2000/., and offered to assign the whole for the benefit of all his creditors, but refused to give up any part to the plaintiff alone, he was ordered to be committed to close custody under 4 Wm. IV. ch. 10. Bruneau v. Jauce, Easter Term, 7 Vic. LIMITS. LIMITS. S81 m Form of order for committal to close custodyJ] — 5. An order for the committal to close custody of a debtor upon the limits should be directed to the sheriff, and follow the form pre- scribed in the statute. Hamilton v. Anderson, ii. U. C. R. 452. Application to Judge in vacation to commit debtor ^. — Appeal.^ — 6. A judge, when applied to in vacation under the act 4 Wm. IV. ch. 10, sec. 4, for the commitment of a debtor on the limits to close custody, disposes of the case without the power of appeal, by declining to interfere. Sliaw et al. V. Nickerson, and Gillespie et al. v. Nickerson, vii. U. C. R. 541. II. Bond and Proceedings thereon. See Amendment, III. 1. — Attor- ney, 11(3), 4. — Escape, 22. — New Trial, I. 3. — Particulars of Demand, 2. — Sheriff, IV. 1, 8. When void under 23 Hen, VI. ch. 9.] — 1. A bond conditioned that a debtor shall confine himself to the limits of the gaol is void under the statute 23 Hen. VI. ch. 9, if at the time of its execution the debtor was not in custody nor on the limits. Camp- bell V. Lemon, ii. O. S. 401. Extent of limits mistaken by debt- or.]— 2. Semblc: That a bond to the limits is not broken where the debtor has not willingly withdrawn from the limits, but has been misled as to their extent, and gone beyond them without any idea that he was transgressing. Lewis V. Grant, i. U. C. R. 290. Bank filed up vjith debtor'' scon- sent — Variance.] — 3. A blank having been left in a bond to the limits, which was afterwards filled up with the con- sent of the debtor, although not in his presence, was held no variance on the plea of non est factum. Leonard v. Meritt, Dra. Rep. 294. On an attac/iment for non-pay- ment of money — Assignmient.] — 4. A bond to the limits may be taken on 2 N an attai;hment for non-payment of money, md may be assigned. Mont- gomery v. Howland, Easter Term, 2 Vic. Bond within 8^9 Wm, and Mary ch. 11 — Suggestion of breaches.'] — 5. Where the condition of a bond is set out on oyer, and it appears on the re- cord by tiiat means that the bond is within the statute 8 &. 9 Wm. and Mary ch. 11, the plaintiff ought to suggest his breaches before trial, and cannot talu a verdict for the penalty and suggest breaches afterwards. Camp- bell v. Lemon, ii. O. S. 401. Necessary averments in declara- tion.] — 6. In a declaration on a bond to the limits, given by a debtor in exe- cution, it is necessary to shew the judgment, writ, and execution of the debtor, and the execution of the bond while he was in custody ; and the re- cital of those facts in the bond set out in the declaration will not be sufficient. Leonard v. McBride, iii. O. S. 1. Averment of limits being assigned by justices.] — 7. In a declaration on a bond to the limits, an averment that the justices in Quarter Sessions assign- ed limits to the gaol is sufficient, on general demurrer ; and the bond is not avoided altogether because part of the condition is contrary to the statute. Stebbins v. CGrady et al,, Easter Term, 2 Vic. [By the statute 10 & 1 1 Vic. ch. 15, it is en- acted, " that the gaol limits, to the respective gaols in each district, shall henceforth be and consist of the whole of such district."] Variance.] — 8. Where in a decla- ration on a bond to the limits the con- dition set out was, that the debtor should not depart from the limits, and the defendant, on oyer, shewed the condition to be that the debtor would remain on the limits until the debt was paid, or he should be legally discharg 1 from the limits, and demurred : Heldf a fatal variance. McGuire v. Pringle, Mich. Term, 3 Vic. Averment of defendant being bound — Plea, nil debet.] — 9. In mi action i 2S2 LIMITS. LONDON (TOWN OF). on a bond to the limits, it should be shewn in exjjress terms, and not mere- ly by iinpliciition, that the defendant became bound, and where it did not cx|)re:^r a malici- I ous arrest cannot be maintained against j a principal on an arrest made by his , agent's ailidavit of his own apprehen- sion that the debtor would leave the I j)rovince, the ailidavit and arrest both j being made widiout the principal's i knowledge, privity or procurement. I Smiik v. Tliompson, Easter Term, 5 ' Vic. I Averment negativing dchto>'^s leav- ing the province, ^•c.'] — 19. Wherein an action fur a malicious arreston mesne process the plaintiff declared that the defendant, not being apprehensive that he would leave the province without satisfying the debt for which he caused him to be arrested, falsely and malici- ously made an atlidavit that he was so apprehensive, and caused the plaintiff to be arrested tV.c; the declaration was held bad in arrest of judgment, on the ground that the inducement and aver- ment were too large, as it was not necessary that the creditor should be apprehensive that the debtor wou^ leave the province of Canada to jus- tify him in making the atlidavit and arrest. Thompson v. Garrison, Easter Term, 5 Vic. 20. The same objection being taken as in the last -ase : Held, to be a good ground of non-suit. McBean ct al.v. Campbell, Mich. Tetm, 6 Vic. Omissions ivhich render declaration had.] — 21. In the third count of a de- claoation in case for a malicious arrest the plaintiff charged the defendant with maliciously causing the writ to be indorsed for a larger sum than war- ranted by the judgment, but ho did not aver a want of probable cause for indorsing the writ for the amount men- tioned, nor did he lay any precise day on which the arrest was made, nor did he aver that the defendant maliciously caused the plaintiff to be arrested : •Sim 390 MAMCIOUS PROSECUTION. MANDAMUS. plaintiff of the right of action against the ival prosecutor. Carrv.Proud- fcot, Easter Term, 3 Vic. lividcmr — Record of accjinttal.'] — JTrld, declaration bad upon all these friDiiiiils. AclJttiid V. Adams, vii. U. C. R 13f). Pi-i}ii(if(irirrris'' — Exrniplifwalioii of finun- jiui^hinil.'\—'l-2. In an | 3. If j,, an action for a malicious pro- action I'or a m;i!i(i(ms iiriest without | .,i.,.i,tion, the record of the a<-quittal of any proliahlc c:iuf/i/e cause.'] — 4. Where in an action for a malicious if there he no dispute tipon the liicts ; hut if tlie statements are contradictory the Court sliouid still determine the probable cause, directing the jury that there was or was not probable cause accordiuir to tlieir tindinir of one or oilier stale of liicts before tlieni, JSldii- iicrs V. BoidloH, jNIicli. Term, 7 Vic. through the office of tiie governor's secretary that certain persons confined in the Provincial Penitentiary could give information on the siil>ject of the burning, and the defendant went ac- cordingly to the Provincial Penitentiary and then received the written state- ment of those persons that the plain- till' had committed the arson: Held, that if he acted bona fide on this re- juosentation, that it formed a sutlicient justification. Osua/d v. Mculnirn, iMich. Term, 6 Vic. MANDAMUS. Src Appeal, 6. — Bank of Upper Canada, 2. — Common Schools, 7. Deed, III. 9.-Distuict Council, 12. JMALlCIOrS PROSECUTION. l]'aht of pro//a/,/r au/sc naixt he 2V(ncd.] — 1. In an action l()r a mali- cious prosecution, it is not sulVicieiit for the plaintill' to shew the ])rosecu- tion ami its abaiulonment, to tro to the ji"y ; he must also shew want of i)ro- liable cause. Lfipryi/ifn v. Stcmictt, Trill. Term, 1 iV 2 Vic. Yariaine in slatrmriit. of cowl irlirrc iiidiclmoil tried. — Amend- meitt.'\ — 2. Where in an action on the case for a malicious prosecu- tion it was alleged in the declara- tion that the trial of the indictment tool; place before a Court of Oyer and Terminer, and the iiulietirient was at Ceiieiai C.aol Delivery: Held, that the variance was amendable, and that theU//f trial of the indictment being thioiigha 'cation by two members of the Muni- Queen's counsel did noi deprive thcjcipal Council of the District of Gore General frinciph' as to issuing.] — 1. A mandamus never issues except to admit or restore some j)erson to an ascertained right. Barnhart v. Jus- tices of the Home District, Easter Term, 7 Wm. IV. lirm/damus refused, parties apply- ing hdiinss no piirticu/ar interest in app/ication.]—2. Upon an appli- MANDAMUS. MANDAMUS. 291 for a mandamus to the warden, com-' mandin^ liim to repay to the treasurer of the district a sum of money he had received from the council as a salary for his services as warden : Held, ilint the mandamus must be refused, the parties applying having no particular interest in the matter. Rcgi/itiv. The District Council, of the District of Gore, V. U. C. R. 357. Not issiuMa for Parliamcntarij VMiics.'] — .3. The Court refused to is- sue a mandamus to justices of a district to order parliamentary wages to be paid to the representative of a town under the provincial statute. Jlc.v v. The Magistrates of Nicigura, Tav. U, C. R. 542. [See Cornwall v. Baby, 14, infra.] To municipal corporations for the trial of contested elections.^ — l. 'i'lie Court will, if circumstances recpiire it, issue a mandamus to a municipal cor- poration to compel them to proceed in the trial of a contested election. De/i- ham and the Corporation of t lie Citif of Toronto, In re, iii. 0. S. (i05. To try legality of election of corpo- rate ojjiccrs \ — 5. The Court will uol grant a mandamus to try the legality of the election of corporate otlicers, but will leave the parlies complaining to an information in the nature of a (pio warranto. Electors of Hoard of Po- lice of Brockvillc, In re, iii. O. S. 173. When granted to a bank for the inspection of their lxx,ks.]—(i. The Court will not, although they have the power, grant a mandamus for the in- spection of the stock book, or other books of a bank, unless some special grounds be disclosed to warrant it. Bank of Upjier Canada, In re, Dra. Rep. 57. To clerk of the Court of Requests for the productio7i of Ijooh.] — 7. A mandamus was granted against the the clerk of a court of requests, to give up the books and papers of the court, which he had refused to do, on being removed from ollice. Lacroix, In re, Mich. Term, (i VVm. IV. To Quarter Sessions, ordcrin g ihrm to adhere to their decision in a, cnse.'\ — 8. AVIiere a perj^on had been con- victed before justices of the peace and fined, and on an n|>pe;il to the Quar- ter Sessions, the justices there admit- ted more evidence than had been heard on the conviction, and the accused party was acquitted, but on receiving t|ie opinion of the Attorney General that the additional evidence siiouid not have been admitted, the justices in sessions confirmed the conviction, and ordered it to be recorded, but took no notice of the acipiittal — the Court made absolute a rule for a maudahius, com- manding them to enter an acquittal. R.c£ V. Justices (f IhUliurst, JNIich. Term, (i AVm. IV. To sheri/l', for non-conveya)tcc of land sold for taxes.'] — 9. Where lands were sold under the assessment law for the non-]iayni(.'nt of taxes, on the Isl ofiNIarch iS30, and on the Istol Mnrch 1S3! tlie owner of the land paid the amount of the |)Mi'cliase money and twenty i)er (;eiit. besides, as re. (|uired by the statute, to the ileputy sherid", who collected taxes for the treasurer of the district who was then absent, and a short time afterwards tiie purchaser at the sale demanded a deed of the land from the siierill', who refused to iriv.' it — the Court refused a mandamus to compel him, stating that the owner was in time, and if he were not, they would not interfere summa- rily, but wouhl leave the purchaser to his action. hSheri //' of JVeurastle Dis- trict, In re, Dra. Ku}). 515. To boundary commissioners ] — 10. A rule for a mandamus will be granted against boundary line couunissioners, if they do not return the proceedings had before them within fourteen days after notice of appeal. Delong ct al. \ . Striker et al., Easter Term, 3 Vic. li 'sm 292 MANDAMUS. MANDAMUS. To Quarter Sessions, ardcring them to anthonzejmij iriitfor ec/t(d?i])rint- ing.^ — 11. A rule lor a mandamus will not be granted to order tlie justi- ces in sessions to direct the treasurer of a district to pay the balance of an account for printing for the district, which had been rejected by them as excessive. Stanton v. Justices of the Home District, Easter Term, 3 Vic. Return to, by justices of the jicace.^ — 12. Upon a mandamus nisi to justi- ces of the peace, they should return the recorded proceedings had before them, and not collateral ma*ter not embraced in the entries of the court. Rex V. Justices of the Home District, Trin. Term, 11 Geo. IV. To a member of a corporation indi- vidually — Return disputing name of corporation.^ — 13. It is no return to a mandamus to A., a member of the Board of Police of London, lliat the President and Board of Police of Lon- don is the corporate name, and that there is no such name as (he corpora. lion of the Town of London — the writ having been directed to him by name, describing him'as a member of such corporation. The Court will not, on a suggestion that the return to a writ of mandamus was not actually made as it purports to be made, treat it as a nulli- ty: it must be expressly shewn that it was unauthorized, to enable them to do so. Regina v. Bal/cwcll, Hil. Term, 5 Vic. To district treasurer, for payment of parliamentary tvagvs^ — 11. The Court refused to grant u mandamus to a district treasurer to pay over to a member of the House of Assembly of Upper Canada his wages, for whicli he had obtained the Speaker's warrant, under 1 Vic. cii. 17, it not being shewn that the money had been raised by as- sessment, or that any applications had been made to the magistrates in session to direct that the payment sliculd be made. Cornwall v. Baby, riil Term, 5 Vic. To tcurden of a district, to swear in a newly elected conncillor.'\ — 1 5. Where a mandamus was applied for, to be di- rected to tiie Wartlen of the London District, to swear in a person who claimed to be duly elected a Council, lor, under the Municipal Council Act, the Court discharged the rule, it ap- pearing that a Councillor had been returned and sworn in for the town- ship, which had been contested ; tiie proper remedy in such case being by quo warranto. Brcnnan, In re, Easier Term, 5 Vic. Disputed boundary . itwecn tivo districts — Refusal by o. j to aj^ptoint an agent — Mandamus.l — IC. Where there is a disputed boundary between two districts, and one of the districts appoints an agent for settling the boun- dary, under the act 1 Vic. ch. 19, sec. 3, the Court will not, on the refusal of the justices of the Quarter Sessions of the other district to appoint an agent on their behalf, direct a mandamus to them to do so, as the act leaves it dis- cretionary with them to proceed or not. Boundary line between East- ern and Johnstniun Districts, In re, Mich. Term, G Vic. To District Council, ordcri ng them to build a Court House.']- -17. The Court rcl'used a rul'3 nisi fcv ■ ;i ..■;■- datnus, at the instance of th,; y ..< of the Huron District, to eir ' the Huron District Coiiicil to bulk. . Court House. Justici >• of the Diuricl. of Huron v. Huron District Council, v. U. C. R. 574. To justices of the j)eace, ordering them to issue execution on a convic- tion.] — 18. The Court refused to grant a mandanms,to compel two justices of the peace to issue execution upon a conviction, under G Wm, IV. ch. 4, sec. 2, for selling spirituous liquors without license, the conviction having been grounded upon the written state- ment of the informer, and the oath of one other witness ; there being a doubt, MANDAMCS. MARINE RAILWAY COMPANY. 293 under the statute, whether the infor- mation ought not also to be an oatii. Regitta v. McCoiinell, Hil. Term, 7 Vic. To distiict trcnsitrrr, nrdering pay- ment offccstnth.c clerk of the peace — Return/] — 19. Wiierc tlie treasurer of the district council refuses to pay the account of tlie clerk of tlie peace for certain services, and returns to a writ of mandamus nisi that such charges are not shewn by the clerk of the peace to be connected witii the administration of justice, or to have been specifically provided for by law, so as to render it neccssarj' that they should be audited by the district conn- oil; and returns further, that there were no funds in his hands out of which he could pay those charges — the return was allowed. Clerk of the Peace V. Western District. Municipal Council, In re, i. U. C. R. 162. To district treasurer, ordering jmy- ment of sheri(j'\'i fees.'] — 20. A man- damus to the treasurer of a district to pay the sheriff's account, audited by the justices of the peace of his district in quarter sessions, was refused by the Court, and the sherilf was left to his remedy against the treasurer by indict- ment, for breach of duly. Hamilton V. Harris, Treasurcf of London Dis- trict, hi re, i. U. C. R. r)13. To commissioners of St. Laurence Canal, for appointment of an arbi- trator.] — 21. A mandamus nisi was awarded to the conuuissionors of the St. Lawrence Canal, to appoint an ar- b"t"ator to join in awarding upon an unsettled claim. McNairn and Cotn- missio)iers for the St. Loirrc/ice Ca- nal, In re, iii. U. C. R. lo.'i. To Board of Police of Nicgara, ordering payment of licenses over to inspectorof licenses.]— 22. A manda- mus was granted, dii-octing the Hoard of Police of Niagara to pay over to the inspector of licenses the sum oi'24<0L, received by the clerk of the board for tavern licenses for 184(5 and 1817 ; the Court deciding that, under the 17th sec. of 8 Vic. ch. 62, and 3rd and 4th sees, of 8 Vic. ch. 72, the government, and not the Town of Ni- agara, were entitled to receive the the dues upon such licenses. Rcgina V. The Board of Police of Niagara, iv. U. C. R. 14.1. To county court.'] — 23. The Court will only grant a mandamus to the judge of the county court, in cases where there is no doubt of his juris- diction. Trainor v. Holcoinhe, vii. U. C. R. 548. To distnet court judge, cndcring him to admit an attorney to piractise in his court.] — 24. Per IMacaulay, J., and Jones, J. — Attornies of this court not being barristers, cannot as of right l)e heard as advocates in the district courts. Robinson, C. J,, dissentiente. The Court, thus diflering in opinion as to the right of attornies to practise as advocates in district courts, refused a mandamus to a judge of one of the district courts to admit an attorney to he heard therein as an advocate. Lc- pcnoticre, Li re, iv. U. C. R. 492. Quashhig mandamus nisi for incon- sistency before return fdcd,'\ — 25. A mandamus nisi, issued upon a rule ob- tained for that purpose, must be con- sistent with and authorized by the rule ; otherwise it may i^t; tjuashed on motion before the return to the mandamus nisi is fded. Rcgina v. McLean, v. U. C. R. 473. MARINE POLICY OF INSU- RANCE. Sec Insurance, 5, 7, 8, 9, 10. — New Trial, I. 17. s^^ MARINE RAILWAY COMPANY. Sec Kingston Marine Railway Company. 294 AIARRIAGE (BREACH OF PROMISE). MASTER AND SERVANT. MARKET OVERT. See House. MARRIACE. See Criminal Co.nvi:;us.vtio\. — Dower, II. (i. — E.ii;ctmi;.nt,11. 1 J. EviniiNCE, II. 7. Eject of Tinpr.nal. Slafi/fr 5 ^<^' fi Vic. ell. 2() on crrtttiii illrndl uxtrri- a^cs] — 1. Aliinintii's coiitriictcil in Ireland betwooii nicmhrrs of flic Church of Enijl;i:ul Jiiid Pp'^liytei-inns, celeljrated l)y ni'mistors not hi'loiiLiinsi to the chinch of JMiiiliiiul,iii'o ItTahzi'd by the im|)cnal .staUito f) »& G Vic. ch. 26 ; and such maiTiniios colehratcd he- fore tliat act was passed, are h-jxal marriager' in tiiis country. Dur. doib. Brcahcy v. Brcakc}/, ii. U. C. R. iJli). Evideiiccof/r^dl nHtrridfic (tg(ii//.it the evidence of colKddlion and rrpu- tatin)i.^ — 2. The cei'tificale of nuir- riage by a mn^nsirate in (he fo!h)\vintr form ; " I do hereby certify that I iiave this day married A. and B. accdnlintrto the Church of Enghind," dated in ISOl, with proof of cohaljitation and repu- tation, but wiiliout proof of pulilication of banns: //(■/(/, sullicient to estalilish the marriage against the evidence of cohabitation and reputation of marri- age with another person alive at the time of the second marriage, defects of form in such cases being cured by llGeo.IV.ch.36. Doeder.i.. Whee- ler v. McWilliams, ii. U. C.R. 77. 3. Where a marriage in fact has been proved, evidence of reputation and cohabitation is not sulHcient to estal)lish a prior marriage. Doe dcni. Wheeler v. McWilliams, iii. U. C. R. 165. MARRIED WOMEN. See Ahatf.mknt, 5. — Administra- tion Bond, -l-. — Cuiminai. Con- versation. — Deed, II. 4, 5, 6, 7. S, !), 10.— Ejectmi;nt, II. 11.— Hi siiAND AMJ Wife. — Lower Canada. MASTER AND SERVANT. See Assault and Batterv, 7. — Asst;MPSiT. I. i;{. — Corporation, 7. S. — Hlshand and Wife. 4<. — Limitations (Statute or), II. 14-. Magistrates, 9. — Seduction, 8. MARRIAGE (BREACH OF PRO- MISE). See Arrest op Judgment, 7. — Costs, 1(1), 8. Yrariif ]iirin;j;— Action for tvciiies I on, II ion '^fn I ilisntissal — JJcr/dru/io/i.] ' — 1. A detiaration setting out a con- tract to pay a ceitain sum per year for I services as long as a party should rc- j main in such service, and a readiness I and willingness to continue, will not entitle a party to recover lor !i wrong- ; I'ul dismissal, mdess the declaration plaiidy and directly allege (hat the de- fendant did agree to retain the plaintilT in his service for the jieriod within which he is stated to have been dis- missed. Raines v. The Credit. Hur- /w ComjMnij, i. U. C. R. 174. Ch ild u:xainst imrent . ] — 2. Unless a specific contract of hiring be proved, the Court will discountenance the hrinjring an action by a son or daughter against a parent for services performed while living in the parent's bouse. Hpragvc et tix.w. Nickcraon, i. U. C. R. 284. Servant impnundini: cattle — MaS' ter liidile for hisacts.^ — 3. A master is liable for the acts of his farm ser. vant in impounding ca(tle in his ab- sence, the servant acting within tho general scope of his authority. Spaf- ford V. Hubble, Easier Term, 7 Win. IV. Yearly hiring — Wronsfnl dismis- sal — Action for icages before eapira- tioii of the yearJ] — 4. A clerk or servant who is engaged on a yearly MESNE PROCESS. hiring, cannot, on being dismissed with- 1 out siitVicient cause, recover tlic ninount ' of iiis year's ua^^cs in an action ontlie 1 coniinoii counts cuninienceil lietorotlie ' expiration of the year; and this, al-! thouL'litho hlrinj; was t()r one year at a certain sum pi'r month. McGujjui V. Caijlr,j,\\.V. C. R. 308. Dcdariifioii timd/ist. servant for hrcdch of duly.'] — 5. Wiiere in spe- cial assumpsit s'ljainsttlu' defendant on an airreement to serve tiie plainlilfs faithfully, and the i)Iaintitrs assigned as a breacii that during the lime of ser. vice the defendant wrongfully i)eiiaved himself in n careless and negligent; ninmier while in the service of ihe plaintills, the hreach was held bad on special demiu'rer. (yNcUl et id. v. Lcight, ii. U. C. R. 204. MESNE PROFITS. 295 MATERIALTY IN PLEADING. Sec Pleading, VIII. BIEMBER OF PARLIAMENT. Sec Parliament, 2, et seq. MEMORIALS. See Evidence, II. 5, 9, 10.— Mort- gage, I'k MERGER. Sec Bills of Exchange etc., VII. 8,9. MESNE PROCESS. See. Aesconoing Diobtor, 6. — Ar- Ki;sT, 11. li, l.'i. — Capias ad Ri:s- roNUENDUM. — Distringas. — Es- cape, 15, 19. — False Imprison- ment, 2, 3, 4j.— Limits, 1. 2. — Pro- CESS. MESNE PROFITS. See Attorney, 11(1), 6. - Vahi. ance, 4. Averment of land beifigj^laintij/'s'.'] — I. It is necessary, in a declaration in trespass for mesne profits, to state that the land was the land of the piain. tills ; such omisf;ion is not cured by stating their expulsion. Grant et al. v. Fannin:^, Tay. U. C. R. 470. Improvonentx in mitigation of damaiics.] — 2. In trespass ibr mesne profits, the defendant may give in evi. dence in mitigation of damages the value of buildings erected on the pre- mises by him. Lindsay et al. v. Mc- Farling, Dra. Rep. 6. 3. In an action for mesne profits the jury gave a verdict for nominal damages, and the Court were moved by the plaintilV to set aside the verdict as perverse and contrary to law. Evi- dence was given at the trial that the defendant had made substantial im- provements on the lot from which he had been ejected, and there was also evidence of the costs of the ejectment suits, but held, that the damages were in the discretion of the juiy, and that the damages and costs of ihe ejectment might be considered as paid for by the improvements, anil the rule was dis- charged. Patterson v. licardon, vii. U. C. R. 326. Action aij^ainst executrix of dieriff — Pica amounting to general issiie.'\ — 4. In trespass for mesne profits against the executrix of a sheriff, a plea justifying the entrance on and seizure of the property under an attach- ment directed to the testator under the Absconding Debtors' Act against the estate, real and personal, of a stranger, was held bad on special demurrer, as amounting to the general issue. Green v. llaniilton, Hil. Term. 3 Vic. Action against an executrix — DC' fence of tvrit not being executed till after testator''s death.] — 5. An action Ibr mesne profits may be maintained I against an executrix under 7 Wm. IV. 5J96 MrDLAND DISTRICT TURNPIKE. MILEAGE. ch. 3 ; and where tlie action is foiinclcil on the jiulgmeiit agiiinst. the casual ejector in ojuitnieiil, it is no tiiuuiiil ol' defence tliat althoii|^h tiic writ ol" pos- i session is testt'ii in the tiMianl's lili'-tinic, it was issued and executcil alU'r his death witiiout a sciio I'aoias. GrrcH V. Ilundlton, Easter Term, 3 Vic. Ar.iioii — EriitciKT uf jiitl^iurtil in ' ejectment.^ — G. Whereal'tera recovery in ejectment an a( tiun is brougiit li)r the mesne prolils.and evidence of title is given, it is not necessary to shew; the judgment in ejectnieiu. Sft icnsun. V. iS'VComhs, Mich. Term, 4- Vic. | Action, after jiidtii.i.cnL bij (Jc-\ fault in eject meiiL.'\ — 7. In an action I for mesne profits, alter judgment by I detiiidt in ejectment, it is not necessary i that the costs of the ejeclnient should ' be taxed belbre they can be recovered. \ Bimk of Upper Cvnnda v. ArtiL-\ strong, Hil. Term, (J Vic. I Defendant not estopped hij jwlg- \ mcnt against casual ejecUjr from dis- j puling title,'] — 8. A judument in : ejectment against tin; casual ejector does not estop a defendant, in an action for mesne profits, from disputing the title of the j)laintitV liom the lime of the demise laid ui the action of eject- ment. Fonton v. Daly, i. U. C. R. 187. [Spe the new Ejeclnient Act, 14 & 15 Vic' ch. 114.] METHODIST TRUSTEES. See EjecTxMent, IV(2), 6. — Rkli- Gious Societies. MIDLAND DISTRICT TURN- PIKE TRUST, Action under 3 Vic. ch. .')3 — Plead- ings.] — 1. In an action brought by the Commissioners of the Midland District Turnpike Trust under 3 Vic. ch. r)3, it must appear upon the face of the declaration that the demand accrued to the cotiiniissionera in the course of their business as comniissioncrs. Cum- min g V. G'ucss ct al. ii. U. C. R. 125. Limited poa-er to demise — Demise hryinid that 'pmeer — Note firr rent — E.rtensijn of time.] — 2. Commis- sioners a])|ioiiiled under an act of par- liament limiting their jiowers with respect to demises and to the collection and appropriation of rent wlien due, make a demise oeyond this scope ; the tenant is put into possession and enjoys his term ; the commissioners, at the expiration of the term, take a jiromia- soiy note from the tenant for the amount of rent: Ildd, that the com- missioners, by their clerk, could not sustain an action upon such note, on two irrounds — first, because the pro- mise to pay the note arose upon an illegal consideration, viz., the illegal demise; and secondly, because the commissioners had no power, though liie demise were legal, to give time for |)aymentof rent already due (Robinson, C. J., dissentienle upon both grounds). Irrhutd V. Guess cl ul,, iii. U. C. R. •J-20. Lease different from proinsions in the act.] — 3. A. sues as clerk to com- missioners exercising a pulilic trust under an act of parliament (3 Vic. ch. 53) upon an illegal dendse of tolls for a year, at a rent payable every fort- night in advance, the 27th section of that act requiring the rent to be made payable monOdy; the lease stated in the declaration is said to be subject to the provisions in the act : Held, on demurrer to tne declaration, that the l)laintiir, as clerk to the commissioners, could not be jiermitted to recover on such a contract, because it is a con- tract substantially diderent from the one which the commissioners are ex- pressly directed by the statute to make. Ireland v. Noble, iii. U. C. R. 235. MILEAGE. Hee Poundage etc., 6. MOLLITER MANUS IMPOSVIT. MONET HAD AND RECEIVED. 297 MILLER. See Assumpsit, II. 5, — ^— MILLS. See Arbitration and Award, IV (3), 1,2. — Case (Action on the), 9. — Easement, 3, 4, 5, 6. — Water 2,3. — *— MISDIRECTION (OF JUDGE). See Attorney, 11(1), 9. — Auction, 2.— Carrier,13.— NewTrial,VL MISJOINDER. See Action, 6. — Demurrage, 2. — Demurrers, 13, 15. — Pleading, X. MISNOMER. See Arrest, I. 17. — Costs, IV(1), 11. — Ejectment, II. 8. — Judg- ment OF NoN Pros, 3. — Practice, 1.24; II. l.'i.—VARiANCEjg, 12,14. How taken advantage of."] — It is no ground of nun-suit that the plaintiff has declared by a name different from her real name ; it can only be taken advantage of by an application to amend the declaration. Murphy v. Bu7it et al.y ii. U. C. R. 284. MISREPRESENTATION. Sec Contract, 3. — Insurance, 3, 8. Limitations (Statute op), III. 2. Sheriff, IV. 5. MISSPELLING. See Arrest, I. 32. — Idem Sonans. MOLLITER MANUS IMPOSUIT. See Assault and BAxxERy, 1, 4. 2 p MONEY HAD AND RECEIVED. See Bankrupt etc., 8. — Common Counts, 3.-Contract, 14. — Cor- poration, 3, 6. — Division CouaT, 4. — Gaming. 1,2. — Infant, 2. — Joint Stock Company, 4. — Part. NERS etc., 13. — Set-off, 15. — Sheriff, III. 9; V. 12. Agreement by testator to purchase lands — Recovery of money on faU' ure of agreement. "l — 1. Where money had been paid by a testator on an agreement for the purchase of lands, which the vendor had failed to com- plete, the money may be recovered back by the executors as money had and received to the use of the testator. Smart et al. v. Brown, Easter Term, 2 Vic. May be maintained for money levied on an execution.'] — 2. An ac- tion for money had and received may be maintained against a sheriff, for money levied on an execution. Shuter et al. v. Leonard, ;ii. O. S. 314. Assignment of judgment for Joint benefit ofassig?tee and plaintiff — Re- covery of plaintiff 's share.] — 3. Where a Judgment was assigned to the defendant for the joint benefit of the plaintiff and himself, and he received the whole amount of it : Held, that the plaintiff could recover his share as money had and received. Hooker et al. V. MMillan, iv. O. S. 14. Lease of farm on shares — Recove- ry of lessor''s share.] — 4. Where the plaintiff let to the defendants a farm on shares by an instrument under seal, and the defendants covenanted to de- liver to him a portion of the crop by a certain day, but before that day sold the crop and applied the money to their own use : Held, that the plaintiff could not rescind the contract and sue for his proportion as money had and received. Ducat v. Sweeney et al., Mich. Term, 3 Vic. Illegal interest on loan — Plaintiff' may recover the excess.] — 5. A plain- tiff who haa paid more than the legal 298 MONEY HAD AND RECEIVED. MONEY HAD AND RECEIVED. t 1 of mniinj paid ]»aity pay money interest for money loaned to him may maintain nn action for money had and received against tlie lender, to recover back the excess of inteici't over the legal rate. Barnlidrt v. Rubcrtson, Tfin. Term, 7 Vic. Construction of imnls -' value rr- ceivcd" — Evi(lcna'.'\ — (i. Tin- ^vor^l^ " value received" in an Jiiircement to the follovvini: ellect — •* I iiromise to pay A. or bearer 'i')/. value received, to be paid in niercliautahle wheat at market price" — ini|)ort a (iel.>t due, and are prima liicio evidence of a consi- deration ; and such an ai'reemcnt may be shewn under the counts ii;)r money had and receiveil, and tiic account stated. Waddel v. McCohe, iii. 0. S. 502. Agreement mid uiidtr Statute of Frauds— Brcover If thereon.'] — 7. U' a on a verbal agreement liir the sale ol' lands, he cannot, without shewing something more, maintain an action to recover it back, on the u:round that the agreement is void i)y the Statute of Frauds. Barber v. Armstrong, Trin. Term, 7 Vic. Agreement to be accoutitable for the amount of a note deposited, if paid — Action not maintainable if not paid.] — 8. A. leaves with B. the fol- lowing receipt — •" Mr. John L'Espe- rance has left with me a note signed by J. G. Tremuine for 97/., payable at the Bank of Montreal here, at three months from the 31st ultimo, which I am to account to him for if j)o,id, de- ducting the amount he owes me. — Co- bourg, April 1st IS-tG, (signed), Ben- jamin Clarke." — A. indorses the note and gets it discounted at a Bank. — When it becomes due the note is re- newed with B.'s assent, who indorses the same. — Before the renewal be- comes due, B. sues A. for money had and received : Held, that under these facts the action would not lie. JJ'Es- perance v. Clark, iv. U. C. R, 12. Cheque lost in transmission to a hank — Who liable for such loss.] — 9. Where the plaintiff's agent had paid into the agency of the Gore Bank at Simcoe a sum of money, partly in cash, and partly by che(|ue on the Conmiercial Bank at Toronto, to bo placed to the credit of the plaintiff with the Gore Bank at Hamilton, and the au^ent at Simcoe took upon the whole sum the usual conmii^^sion of a (jiiarti r per tent, for transmission, but the clic(jue was lost in beintr sent from Hamilton to Toronto, and was never paid by the Commercial Bank, or credited to the i)Iaititill' — it was held that the plaintiff could not maintain an action niiainst the Gon^ Bank (()r the amount of the clie((ue as so much inonev had and received to his use. Todd'v. The Gore Bank, i. U. C. R. 40. Zloneif paid In/ a hanl; to a urong prrsrni nrnrrrahlc from the lank tty part If entitled lo it.] — 10. The Bank of Biilisli North America in Knf.'land received money there to be trans- mitted to A. in Upper Canada, and sent a letter of credit by post to A. to receive tiie money at a branch of the bank in Toronto. The letter was ta- ken out of the post-office in Canada (A. having in the meantime died), and x\.'s name forged on the letter of cre- dit, and the money received by some person unknown. Held, that A.'s ex. ecutrix was entitled to recover the money from the branch at Toronto as money had and received to A.'s use. Gissing ct ux. v. Hopper, Easter Term, 7 Vic' Promise to jmi/ debt of another — ith section of the Statute of F7auds.] — 11. Where the plaintiff had been employed by A. in getting out timber, which A. afterwards sold to the defen- dant, who agreed verbally with the plaintiff and others who had been working with him — the timber being in their possession — that he would pay the wages of the plaintiff and others if they would assist in rading the timber to Quebec, out of the proceeds of its sale there : Held, that on shewing the m IddNEY LENT. MONEY tAlDi 299 gale there, tnc plaintifl* was entitled to recover for his wapos as money had and received, and that tho case was not within the Statute of Frauds. Mc- DoneU v. Omk, i. U. C. R. 542 T(LCCS paid to otic treasurer for transmission to another — Neglect — Taxes paid a scrond time under iwo- test — Reeovenj,'] — 12. Where taxes were paid to the treasurer of the Home district on lands situate in the Ottawa district, for the purpose of their being transmitted to the treasurer of the lat- ter district, and the treasure/ of the Home district not haviny; so transmit- ted the amount, the lands were duly advertised for sale, and the plaintiff, in order to save the lands, paid the taxes to the treasurer of the Ottawa district under protest: Held, that he could not maintain an action for money had and reci'ivcd against him to recover them back. Baldicin v. Johnson, ii. U. C. R. 475. Action against an attornei/, evi- dence of judgment being fraudulently obtained,^ — 13. In an action for money had and received against an attorney, evidence that the judgment under which the money was collected was fraudulently confessed was held not admissii)le. Williams v. King, Dra. Rep. 452. For money paid on an agreement •void, as nuule on Sunday.'] — 14. Where A. had received money on an agreement to deliver timber to B. and afterwards refused to deliver the tim- ber, and was sued by B. to recover the money back, it is no defence to such an action to shew the agreement made on a Sunday, and therefore void under the act 8 Vic. ch. 45 ; for if void, that would be no reason why the money received under it should not be re- funded. Vail V. Duggan et al., vii. U. C. R. 568. Cherpic, no evidence of] — The prouuctioii of a cheque is not even prima facie evidence of money lent by the drawer. Foster v. Fraser, Mieh. Term, 4 Vic. [In decluring for money lent, it is not ne- cesiiary to aver that the money wa« lent at the delendant's request. Vktur* v. Davu, xii. M. & W. 758.] MONEY LENT. See Arrest, I. H, 20, 25. MONEY PAID. See Arrest, I. 13, 20. — Bills of Exchange, VIII. 2. 5. — Execu- tor ETC., I. 6. — Goods sold, 5. — PARTNEhi ETC., 7. Sale of land — Transfer of right thereto through several parties — Loss of right of action hy the original vendor against the original vendee."] — 1. Where A. sold land to B. for 225/., and B. sold it to C. for the same sum, and C. sold it to D., and it was agreed between A., C. and D. that D. 'I'nilil pnv A., who thereupon dis- charged B., who discharged C, and A. agreed to take from D. land in pay- ment of 200/. of the purchase money, !ind took D. 's |ironiisM)ry note Jbr25/. the residue ; but hnvintr sul)spquent!y borrowed 95/. of D., instead of re- ceiving at once a deed of the land in payment of the 200/., he took a bond that a deed should be made to him on the re-payment of the 95/. by install ments; but having made default in the payment of these, he abandoned the bond and note given by D., and brought an action against B. for the 225/ , as money paid to his use : Held, that the action could not be maintained, A. having lost his remedy on D.'s bond through his own default, and therefore having no right to make B. pay the money. Holmes v. Spencer, iii. 0. S. 161. Recovery of costs by a party indem- nified.] — 2. An action for money paid will not lie against a person who has engaged to indemnify another against the costs of an action brought against soo M cial on tlie indemnity. Miller v. Munro, JNIich. Term, 5 Vic. Recovery of costs paid by a party defending a suit for another.^ — 3. A. releases B. from gaol by undertak- ing to pay C. the debt B. owed him. C. sues B. upon this undertaking and recovers. — B. requests A. to defend the suit in order to gain time : Held, that A. could recover from B. the costs of this suit on the common count for money paid to his use. Smith v. Davidson, iv. U. C. R 191. Action by a warcliouscman against a person wlio, through mistake, had taken goods from his warehouse.^ — 4. A., a wharfinger and warehouseman, receives a hogshead of sugar to be stored in his warehouse. It belonged to B., but through mistake it was de- livered by A.'s servant to C, who came and claimed it as his. — B. hearing of it, convinces A. that he has made a mistake in delivering it to C, and A. pays B. the price of the sugar and brings his action on the common count for money paid against C. — A. reco- vers. Held, on motion for a new trial that A. on these facts need not declare specially, but could recover against C. on the common count for money paid. Kitson V. Siiort, iv. U. C. R. 220. Averme.tt of request.^ — 5. In de- claring on the common count for money paid, it must be averred that the money was paid by the plaintiff to the defen- dant at his request. Aikin v. How- cutt, vii. U. C. R. 143. ation of original posts. Shenvood v. Moore, iii. U. C. R. 468. MONUMENTS. Survey — Evidence of original, posts,"] — A surveyor cannot act inde- pendently of the provisions of the statute 58 Geo. III. ch. 13, and arbi- trarily lay on one side the evidence which neighbors are ready to give from their own knowledge of the situ- MORTGAGE. See AnuEST of Judgment,2. — Bank OF Upper Canada, 3, 4. — Cove- nant, 11(1), 2, 3 ; 11(2), 7, 17, 18. Debt, 2. — Distress,!. 16. — Dow- er, II. 2. — EjecTxMent, 1. 3 ; VIII. 12, 13, 23.— Estoppel, 4.— Exe- cution, 11, 12. — Fraudulent Deeds etc., 15 Joint Tenancy, 1. — Limitations (Statute of), II. 27, et seq. — Maintenance, (Sta- tute of), 7. — New Trial, X. 15. Partners etc., 15. — Ship Reg's- TRF Act, 1. — Sunday, 3, 4. — Usu- ry, 2, 9. — Witness, 9. Purchase of land at sheriff ^s sale on an execution subseqicent to a mort- gage.'] — 1. A purchaser at sherifl''8 sale of lands, sold under a judgment and execution subsequent to a mort- gage in fee by the debtor, cannot re- cover against the mortgagee in posses- sion. Doe dem. Richardson v. Dick- son, ii. O. S. 292. Stay of proceedings on j)ayment of debt, interest and costs.]-— 2. Where A. gave an absolute conveyance of land to B., to secure a sum of money lent by him to A., and B. gave a bond for its re-conveyance, on the payment of the money lent, on a certain day ; on ejectment brought by E. after a lapse of eight years, the Court ordered that j^ro- ceedings should be stayed on payment of the principal, interest and costs, and refused to allow the plaintiff to include a simple contract debt incurred on the security of the bond, because there was no writing respecting it, and the statute 7 Geo. II. ch. 20, under which the-proceedings were stayed, did not extend to it. Doe dem. Shuter et al. v. McLean, iv. O. S. 1. [See cases 6 and 1 1 , infra.] Mortgage for larger mm tJian ad- vanced — Rights of assignee without HOKTOAOK. notice.'] — 3. Where the instalments on a mortgage were for a larger sum than was advanced, and the mortgagee on discovering the mistake, gave an undertaking in a separate paper, not under seal, that only the correct sum should be demanded, and afterwards assigned the mortgage, and the assignee brought covenant against the mortgagor fur non-payment of the instalments as set out in the mortgage — the Court re- fused to stay proceedings on payment of the sum reall v due. Baby v. Milne, Hil. Term, G Wm. IV. [Also, see case 11, infra.] Prc'M mption of re-conveyance when mortgage in fact satisfied.] — 4. Lands were mortgaged, and at the time for redemption, by agreement between the mortgagor and mortgagee, the money was paid by a conveyance of the land to a stranger, but the mortgage was not given up, nor was there a re-convey- ance, and some years afterwards the mortgagee conveyed the land in fee to another : Held, that the grantee of the mortgagor must recover, and if neces- sary, a re- conve^ . ..ce would be pre- sumed from the mortgagee. Doe dem. McLean v. Whitesides, Easter Term, 6 Wm. IV. Ejectment htj a second mortgagee against a purchaser from first mort- gagee.] — 5. Where A. made a mort- gagK.1 of his property to two persons at different times, and died after the time for payment in the first mortgage, with- out liaving redeemed either, and the first mortgagee having taken possession sold to A.'s heir for a valuable consid- eration, who entered into possession and died, leaving B. his heir, who was also A.'s heir : Held, that the second mortgagee, having a mortgage of the equity of redemption only, could not bring an ejectment against B., who was in by ])urchase, and not by de- scent, and was therefore not estopped by A.'s deed. Doe dem,. Gillespie v. Macavlay, Hil. Term, 7 Wm. IV. Bond to convey land on payment of a certain mm, not construed as a mart- MORTGAGE. 301 gag" I— 6. A. having purchased a lot of land, and having paid several instal- ments of the purchase money, but having received no deed, assigned his right to 6., taking a bond from him that if he should obtain the deed on the payment by A. to him of 100/. in two years,- he would convey the land to A : Held, on ejectment brought by B., the two years having expired, that A. could not treat the bond as a mortgage, and redeem on the payment of the principal, interest and costs, under 7 Geo. II. ch. 20. Doe dem. Shannon v. Roe, Hil. Term, 7 Wm. IV. Jttdgment and execution on a mort- gage set aside in favor of an innocent purchaser.] — 7. A judgment and exe- cution in ejectment on a mortgage will be set aside in favor of an innocent purchaser without notice, so as to enable him to redeem on payment of costs. Doe dem. Milburn v. Sibbald, Mich. Term, 6 Wm. IV. Registrar's certificate evidence of a re-conveyance.] — 8. Semble: That the certificate of the registrar of the discharge of a mortgage, indorsed on the mortgage deed, is sutlicient evi- dence of a re-conveyance under the statute, without shewing the execution of the discharge itself. Doe dem. Crooh- slmnk V. HumAerstone, Hil. Term, 4 Vic. Crops sown by mortgagor at the in- stance oftnortgagee — Demand of pos- session.] — 9. Where a mortgagor in possession, after default made in pay- ment of the mortgage money, received a letter from the mortgagee, who was in a foreign country, directing him to put a spring crop into the land, unless he came into the country in time for the mortgagor to remove in the spring, and he did not come until the summer: Held, that notwithstanding the relation between the parties of mortgagor and mortgagee, under the circumstances, the defendant could not be turned out of posseasion of the land while the m m JtV 302 MORTGAGE. N ATUKA LtZ ATtON. crops were growing, nor without a de- mand ol" possession. Doc clem. Pat- terson V. Brown, Hil. Terra, 6 Vic. Usury in iJcbt, for irhich mortgage giren.^ — 10. A. gave his note lor a debt justly due by him, untainted with usury, wiiich noto was indorsed by B. to C. upon usurious terms, and A. afterwards iriakes a mortgage to C. lo secure the amount payal)le by the note with interest : Ilc/d, tliat ahhough the mortgage was only given to secure what A. was legally liable to in the first instance, as maker of the note, yet C. could not recover upon it, be- cause he had taken it to secure the debt arising from his usurious discount of the note. Chumhcrlm v. Cham- bers, i. U. C. R. 12G. Stay of proceedings vndrr 7 Geo. 11. c/t. 2l), n-JiDi the amount on the face of titf mortgage is not adtnittcd.'] — 11. In ejectment on a mortgage, the Court will not order the proceedings to be stayed and a re-conveyance to be made under 7 Geo. 11. ch. 20, on payment into Court by the defendant of the money due upon the bond and mortgage, together with the costs of the action, where the whole amount secured by the mortgage is not admit- ted to be due ; nor will a reference to the master be ordered, to ascertain the amount actually due in such case. Doe dcm. McKenzic et at. v. Rttthcr. ford, I U.C. R.d72. Ejectment by mortgagor against a stranger ivhen mortgage over-due.^ — 12. An action of ejectment cannot be sustained by a mortgagor, to recover possession of the mortgaged premises against a stranger where the mortgaize is over-due and unsatisfied, the fee and right of possession being in the mort- gagee. Doe dem. McBcrnic v. Lun- dy,\.\J.C. R. 1S6. Tenancy bet iveen assignee of mort- gagor through the sheriff, aiui mort- gagee,'] — 13. The assignee of a mort- gagor's interest, through the medium of a sherifT, after the mortgage has been satisfied, cannot be looked upon as a tenant at sufferance to the mortgagee ; a conveyance, therefore, made by the mortgagee while such an assignee was in possession, vvouhi be voiii. Doc dent. Carey ct al. v. Cumberland, vii. U. C. R. 4.94.. Memorial to mortgage.'] — I*. It is not necessary in the memorial of a mortgage to notice the proviso for re- demption. Hamilton v. Z»ons, Easter Term, 7 Wm. IV. MORTMAIN. See Will, 10. 9 Geo. II. ch. 36.]— The statute 9 Geo. II. ch. 36, relating to charitable uses is in force in Upper Canada. Doe dem. Anderson v. Todd et al., ii. U. C. R. 82. MUNICIPAL COUNCIL. »See District Council. MUNICIPAL COUNCILLOR. iSce District Councillor. MURDER. »See Criminal Law, 1, 3. NATURALIZATION. Seven years'' residence of a parent (a foreigner) in this province — Right of her son to inherit.] — Seven years' residence of a parent (a foreigner) in this province, makes her a natural born subject of Her Majesty for all purposes ; and being so, her heir would be entitled to inherit under 4- & 5 Vic. ch. 7, sec. 3, and more particularly the heir in this case (the lessor of the plaintiff,) who was naturalized by name with other persons under 7 Vic. ch. 43. Doe dem. C/uzndler v. 3'«s"V, vi. U. C. R. 216. [See statute 10& 11 Vic. ch. 112.] NAVIGATION. NEW ASSIGNMENT. SOS NAVIGABLE WATERS. See Water, I. 4. NAVIGATION. See Carrier, passim. — Demurrage, i j^i^jp_ General Average. — Goods sold i Q^g 2. — Insirance, f),ctspq. — Plead- ing, H. 7; IV. 2. — Principal AND Agent, 4. — Rideac Canal, 3. Right of master to detain ship or freight for tvages tf^.] — 5. The mas- ter of a vessel has no claim or right against the owners to detain the ship or freight for wages, or any disburs- ments made by him on account of the Land et al. v. Maiden, v. U. 309. NEGLIGENCE. MHtat ttndrrstfxxl b//"dn>/.':crs of'.Scc Attorney, 11(1), passim; II (2), 5. — Auction etc., 2. — Bai- liff, 2. — Carrier, 13, 14, 17. — Case (Action on the), 10. — New Trial, X. 29. — Principal and Agent, 7. the foAr."] — 1. Where a delendant had agreed to rctm-n a steamer r'lar- tered by him on a certain day in good j repair, "dangers of the lake except- I ed," it was decided that damage to the i steamer by an accidental fire, not o",- ' casioned by liirhtning, did not excuse , the charterers for not returning the | steamer in good repair, as it did not| come under the exception of " dangers | of the lake." Lamed v. McRae, i. U. C. R. 99. , NE UNQUES ADMINISTRATOR. 2. Queerc: Whether a fire occur-! ring in a steamer from some cause i clearly connected with the use of! steam, would come within the excep- ! tion of " dangers of the lake?" lb. I When oioncrs of vcssda hrjnrcd l/y collision can recover thrrefor.'] — 3. In j order to enable the owner of a vessel I NE UNQUES AC COUPLE. See Dower, II. 6. See Executor etc., II. 5, 7. — ♦ — NE TJNQUES SEIZIE. See DovvER, II. 7, 16. NEW^ ASSIGNMENT. -Sheriff, III. 14, 15, 25. TimetojileadJ^ — 1. The defendant See Guarantee, 5.- .5. — Trespass, II that has been lost or injured by colli- 1 sion to recover damages for the injury, ' it must appear that the accident was i not in any way owing to the negligence, | misconduct, or want of skill in those i navigating such vessel, and that the ; has the same time, viz., eiglit days, to provisions of our provincial act 7 plead to a new assignment as to a de- Wm. IV. ch. 22 have been, as far as ' daration. Unger v. Crosby, iii. O. S. they are applicable, properly observed. 175. Ebeits et al. v. Smythc et al., iii. U. ; Trespass— Statoncnt of time and C. R. 189. ' jilace in tieto assig/iment.l — *• I' '^ Steainboat not tomng as by con- • not necessary in a new assignment in tract, owing to ice.'\ — 4. Semble: trespass to state time and place ; it is That is no defence to an action against, sufficient to allege that the trespasses the commander of a steamboat for not | complained of were committed at other towing Jcc, that he could not perform j and different times, and on other and his contract by reason of his tow-boat ; dilTerent occasions than as in the plea being unavoidably frozen in the ice. Borland v. Bonter, v. U. C. R. 583. mentioned. McGillis v. McMarlin, Easter Term, 7 Vic. 804 NEW TRIAL. NEW TRIAL. Trespass-New assignment not sup- ported by evidence — Non-suit J\ — 3. The plaintiffdeclares in trespass in one count for breaking, &c., on the 20th November 1845. — The defendant jus- tifies as assignee under a commission of bankruptcy issued against the plain- tiff. — The plaintiff new assigns other trespasses committed on the said 20th November 1845 ; to which the defen- dant pleaded " not guilty." At the trial the plaintiff proved but one trespass committed : Jfc/rZ, that under the plead- ings, the plaintiff should be non-suited. Henderson v. Beekman, iv. U. C. R. 150. I. II. III. IV. V. VI. VII. VIII. IX. X. XI. NEW TRIAL. Verdict contrary to Law, Evidence, OR Judge's Charge. Verdict on doubtful, con- flicting, IMPROPER, OR insuf- ficient Evidence, or disco- very OF New Evidence. Absence, Mistake, Miscon- duct, OR Incompetency of Witnesses. Excessive or trifling Dam- ages. Allowance op second or THIRD New Trial. Misdirection of Judge. Jury improperly pannelled, or influenced — Misconduct of Jury. Surprise — Case taken out of Order or in Absence of Counsel. When granted condition- ally — Effect of Non-per- formance ofCondition, when conditional. Other Cases, and general Practice in granting New Trials. Of the Motion for a New Tut' L. I. Verdict contrary to Law, Evi- dence, or Judge's Charge. See Bills of Exchange etc.. III. 25. — Contract, 5. — Duress. — Illegality, 2. — Insurance, 7. — Malicious Arrest, 9. — New Tri- al, II. 19; V. 1. — Non-suit, 11. Sheriff, IV. 2, 3.— Taxes, 13 Trespass, II. 19. — Verdict, 13. Vejilict clearly against — Nerv ttial tcitliout costs!] — 1. Where the jury found for the defendant perversely, and clearly against law and evidence, and the judge's charge, the Court granted a new trial without costs. Kerby v. Lends et al,, i. U. C. R. 66. Verdict for plaintiff against lato and evidence — No dear grounds sheivn by defettdant.'] — 2. Though the Court may think that under the facts proved, in an action on the case for a malicious arrest, a verdict for the de- fendant would have been more proper than for the plaintiff— yet, if no clear and precise ground has been shewn by the defendant for the suspicion sworn to, and there has been no misdirection on the part of the learned judge at the trial, the Court will not grant a new trial. Davis v. Fortune, vi. U. C. R. 281. Transgression of limits by debtor ■Action on bond — Verdict against evidenced] — 3. Where in an action on a bond to the limits, it was proved that the principal had been seen fifty yards beyond the limits, and the jury not- withstanding found for the defendant, a new trial was granted on payment of costs. Chesley v. McMillan, Easter Term, 3 Vic. Smallness of damages no obfection.J Smallness of damages is no ob- jection to a new trial, when the verdict is manifestly contrary to evidence and the judge's opinion. Brookfield v. Si- gur, Tay. U. C. R. 263. [This case is upheld in Soper v. March, Wil. Term, 6 Wm. infra.] T See caseii 7, 14, and 18, NEW TRIAL. NEW TRIAL. 305 Demurrer admitting ilie facts, de- cided — Verdict against evidence — New trial refused J] — 5. After a de- murrer had been decided, which ad- mitted the facts found l)y the jury on a trial of issues, the Court refused a new trial, which was applied for on the ground that the verdict was con- trary to evidence. Ives v. Hitchcock, Dra. Rep. 492. Evidence of Fraud — Doidit as to correctness of finding by the jury. "l — 6. When evidence . . . given to shew that a deed hail been procured by fraud and the jury negatived the fraud, but there seemed great doubts as to the correctness of their finding, a new trial was granted on payment of costs. Doe dem. Melvin v. Gilchrist, Trin. Term, 5&6Wm.IV. Verdict against evidence — Stnall amount at issite,"] — 7. When the plain- tiffs' cause of action in assumpsit was clearly proved, but the jurj', notwith- standing, found a verdict for the defen- dant, the Court granted a new trial, although the amount at issue was small, with costs to abide the event. Bald- ttdn et al. v. McLean, Hil. Term, 7 Vic. Promissory note — Verdict against evidence, through mrsco)icc2)tioti ofju- ry.'\ — 8. Where in an action against the indorser of a promissory note, there was strong evidence that the defendant had admitted tiie indorsement to be his, or to have been made by his authority, whether the signature was genuine or not, and it was doubtful whetiier the jury had not been led to believe that the sole question for them was, whether the signature was the defendant's or not, and they found a verdict for the defendant, a new trial was granted on payment of costs. Bank of Upper Canada v. Rogers, i. U. C. fi. 23. Ejectment — Evidence of fraud in plaintiffs title — Verdict for plaintiff against evidence.'] — 9. Where in ejectment the deed under which the lessor of the plaintiff claimed was in 2 Q several parts illegible, and contained no description by which the part of the lot intended to be conveyed could be certainly ascertained, and there was strong evidence that the deed was made to defeat creditors, the Court set aside a verdict lor the plaintiff, rendered in oppo.^ition to the direction of the judge at Nifi Prius, without costs. Doe dem. McDonald v. Jfc- Donald, ii. U. C. R. 267. Want of diligrncc Inj defendant in maJcing out a case — Verdict against him contrary to evidence — Relief] — 10. Where a losing party has been wanting in diligence to make out his case at the trial, the Couit will not, as a matter of course, relieve him against the verdict, thougli it may appear con. trary to evidence. Doe dem. Wheeler V. McWilliams, iii. U. C. R. 165. Trcsjyassfor mesne 2noJits — Several issues — Verdict on one issue contrary to evidence.] — 11. Wliere in trespass for mesne profits there were several issues joined, and at the trial a verdict was found for the defendants, upon an issue clearly against evidence, the Court granted a new trial to the plain- tiff, unless the defendants consented to allow a verdict to be entered upon that issue for the plaintiff. Amlerson v. Toddctal.,\\\.\]. C. R. 16. Verdict against judge'' s charge but in accordance leilh, justice — Points not raised at trkd disalloivedin banc] — 12. Where the plaintiff, who had been let into possession of land on an agreement to purchase, contracted with another to sell him a quantity of stand- ing timber at so much a tree, which was to be paid for before the timber was taken off the land, and the defen- dant purchased the timber from the vendee aftei' he had made about 12000 feet of it on the land, agreeing to pay the plaintiff for it in the same manner as the vendee had done ; and the plain- tiff having failed making his payments for the land, the defendant became the purchaser in fee from his vendor, and "f 306 NEW TRIAL. NKW TRIAL. lii^ ill! then refusing to pay for the timber, tlie plaintifl' sued him for its value for goods sold and delivered, and tlie judge at the trial directed the jury that the actioti should have been brought on the spe- cial agreement, but they, notwithstand- ing, found a verdict for the plaintifl" — the Court refused to grant a new trial, as substantial justice had been done between the parties ; and the det'endant was not allowed to raise an objection in banc, that tiie action was not main, tainable, as he was the owner of the land, because he had not raised that point at the trial. McMuho/iv. Camjh bell, ii. U. C. R. 168. Actio7i on hilh — Impeaclmicnt nf\ co/isir/cmtion — Verdict against cvi- 1 doicc.'] — 13. Where in assumpsit on' bills of exchange, a)ul for goods sold, '\ the defence was that the bills had been ! given for the price of goods bought ' from the plaintilVs in a foreign country, and which they had assisted the de- j fendant in smuggling into this country, and some evidence was given to that j effect, but the jury found for the plain- ' tiffs,— the Court rel'uscd to grant a ; new trial. Wulhridgc ct al. v. Fol- 1 lett, ii. U. C. R. 280. Bond — Bi'cach of condition — Ver- dict against evidence and judge's cliargc — Neiv trial, ol/hoitgh dama- ges trijfing.^ — l-t. The plaintilf, a sheriff, sues the defendants for a breach of the condition of a bond, in not re- delivering to him certain goods seized in execution, on a certain day, at a certain inn. — The defendants ])lead that they offered them to the plaintiff at the inn on the day named. — The evi- dence did not prove the defendants' plea. — The jury were told by the learned judge that the plea not being proved, the plaintiff ought to have a verdict for the 6/., the sum remaining unpaid upon the execution. They found however for the defendants : Held, that notwithstanding tiie small- ness of the verdict, as the defendants' plea had not been proved, the plaintiff was entitled to the verdict, and that there must be a new trial without costs. Moodie V. liradshatv ct al., iv. U. C. R. 199. Tresjmss — Trespass proved — Ver- dict for defendant.!^ — 15. Where A. having l)een tried lor feloniously shoot- ing at B. and acquitted, was afterwards sued in trespass for the same act, and the jury gave a verdict for the defeji- dant though the trespass was proved, the Court, under the circumstances, de- clined granting a new trial. Day v. Hagcrman, v. U. C. R. \v)\. Verdict manifestly against evi- dener.'] — 16. Where a verdict was given lor the defendant, as it appeared to the Court, manifestly against evi- dence, and in support of an assignment impeached as fraudulent, the Court granted a new trial on ]>aymeiit of costs. Doc dem. Wilks v. Massccar, v. U. C. R. 4.55. Action on marine -policy — Finding of jury in accordance irith evidence.^ — 17. The plaintiffs (the insured), sued the defendants (the insurers), up- on a marine policy, for the loss of a vessel by stranding while navigating the river St. Lawrence. The jury, upon issues raised under the excep- tions in the policy as to the negligence and carelessness of the captain and crew in navigating the vessel upon the waters of the St. Lawrence, by which it was alleged that the loss of the ves- sel had occurred, and not by the ordi- nary perils of the navigation, found for the defendants. Held, upon a motion for a new trial, that upon the evidence, the finding of the jury could not be disturbed. Gillesjne et al. v. British America Fire and Life As- surance Coinpa?iy, vii. U. C. R. 108. TVovcr — Fraialulcnt transaction on plaintiff ''s mvn slietmng.^ — 18. Where in an action of trover the Court thought the jury should have treated the transaction as being, on the plain- tiff's own shewing, ipso facto fraudu- lent, they granted a new trial, though NEW TRIAL. NEW TRIAL. 307 the verdict was only for 11/. 10s., with costs to abide tiio event. Knowhnn V. Conger, vii. U. C. R. -155. II. Verdict on iioubtful, con- FLlCTINfJ, IMPROPKR, OR INSUPhl- ciEXT Evidence, or Discoverv OF New Evidence. See Account Stated, f>. — Arbi- tration AND Award, VI(2), "20. False Imprisonment, 10. — False Return, 12. — Fkai dulent Deeds ETC., 11.-Indemnitv Bond, 7.-Li- bel and Slander, tll(l), 3. — Use AND Occupation, 2. — Usury, 6. Verdict founded vpon conflicting evidence,] — 1. A new trial wiis re- fused where a jury had found that a will had been revoked ujion very con- flicting evidence, the weight of which in the opinion of the judire who tried the cause was against the flndinL^ Doc dcm. Magher v. Ckisliolm, Dra. Rei). 227. Neio evidence.] — 2. A new trial will not be granted upon the grounil of fresh evidence, if it do not ap])earthat it could not have been jjroduced at tiie former trial. Haren v. Lyon, Tay. U. C. R. 510. Neiv evidence — Affidavits.] — 3. A new trial in ejectment, on the ground of the discovery of new evidence, was refused, the affidavits not having been sufficiently explicit, and the Court sta- ting that the defendant could bring an action to recover back possession if his evidence could establish his title. Doc dem. Brown v. Fraser, Hil, Term, 6 Wm. IV. [See also case 13, infra.] Assaidt and battery — New trial granted to elicit evidence.]—^. Where in trespaci for assault and battery the defendant offered to prove in mitiga- tion of damages that the plaintiff had slandered his wife, and that he had committed the trespass immediately on being informed of such slander, a new trial was granted, that all the circum- stances might bo elicited. Hhort v. Lewis, iii. 0. S. 385. Non-suit for not producing bond set nsid'! on hond being found] — 5. Where the plaintiff was non-suited in an action upon a bond which had been filed as an exhibit at a previous trial, because he was unable to produce it, the non-suit was set aside and a new tri:d e amount in a few days, and an action was after- wards brougiit against him for negli- gence in not suing the note, with a count for money had and received — the Court held, that neither count was supported by the evidence ; and a ver- dict having been rendered for the plain- tiff, & new trial was ordered witliom costs. Drcnnan v. Boulton, iii. U. C. R. 72. Trover for a schooner — Unmlisfac- tory evidence."] — 17. Where in trover for a schooner, there was a great deal of evidence of an unsatisfact(»ry char- acter as to the plaintiff's right to the vessel, and the defendant was not proved to have used or employed it, but merely to have allowed the person who left her with him to take her away, and the jury found a verdict for the defendant — the Court refused to grant a new trial. Brmofi v. Alien, iii. U. C. R. 57. Leaving evidence to the jury ivith- out comment.'] — 18. Where the learn- ed judge at Nisi Prius consents with reluctance, from his connection with the plaintiff, to try a cause, and from a feeling of delicacy merely gives the case to the jury without comment, leaving them to make out the points from tilie evidence as they can — the Court, though the evidence may be very conflicting, if they see that the NEW TRIAL. S09 plaintiff has been probably prejudiced, by the case not having been left to the jury in as full a manner as it would have been under other circumstances, will grant a new trial, with costs to abide the event. Boulton v. Cooper^ iv. U. C. R. 278. ricain abatement — Verdict o» con- flicting evidence.] — 1 9. The Court will not, as a mere matter of indulgence, give a defendant a second chance of obtaining a verdict on a plea in abate- ment, when the evidenceis conflicting or leaves the fact of joint liability doubt- ful : Secus, if the verdict for the plain- tiff be clearly contrary to law. Tos- scll et ol, V. Dick et al., iv. U. C. R. 486. Ejectment — Insufficient evidence."] — 20. In ejectment, the lessor of the plaintiff proved a patent from the Crown, which had been in his posses- sion since 1803. The defendant claim- ed under a deed from A. to B. — A. was shewn to have been in possession, and no deed from the lessor to A. was produced, nor any evidence given that he had ever executed such a deed. The facts proved only went to shew a bare probability that he might have done so ; the jury, however, upon these facts having been left to them as very slight evidence of the patentee's having made a deed to A., found a verdict for the defendant : Held, that the verdict must be set aside without costs, there being no legal evidence to be left to the jury, on the facts stated, to shew an alienation by the patentee. Doedem. Petit v. Renard, vi. U. C. R. 501. GcHuinencss of indorsement — Donbtfiil evidence — Affidavits.] — 21. A verdict having been given tor the defendant on an issue, raised as to the genuineness of his indorsement on a note, the Court, upon consideration of the evidence and the affidavits, re- fuseil, in the exercise of their discre- tion, to grant a new trial. Maclem v. Dittrick et al., vii. U. C. R. 144. 310 N£W TRIAL. NEW THIAL. i Ejectment bif a sheriff h vendee — Insufficient evidence of titleJ] — '22. Land not being bound by a judgment for the purpose of sale, under the 5th Geo. II. ch. 7, but only by the delivery of the fi. fa. lands to the sheriH", tlie time of such delivery should be proved by the purcliaser under the shorilV's deed, and whore tliis proof had beL-n omitted, and a verdict had been given for the plaintiff, with leave to the de- fendant to move for a non-suit — the Court declined non-suiting the plaintiff, but gave a new trial on payment of costs. Doc dem. Biirnham v. Sim- mons, vii. U. C. R. 196. Verdict on insufficient evidrnce — Damugex small, and justice already doticJ] — 23. It is no objection to the plaintiff's recovery in trespass that the only trespass proved was committed on a day anterior to the time laid in the declaration ; and if there be any evidence of the identity of the premises, the Court will not grant a new trial for want of sufficient evidence, when the damages arc small and the justice of the case with the plaintifl'. Molloy V. Stansficld, ii. U. C. R. 390. III. Absence, Mistake, Miscon- duct, OR Incompetency of Witnesses. See div. IV. 4, infra. Action against a magistrate — Ab- sence of a witness — Non-suit.^ — 1 . A new trial was refused, where the j)Iain- tiff had been non-suited owing to the absence of a material witness from Court, the act' on being against a ma- gistrate for an act done while in the execution of his office. Per Robin- son, C. J. — Macaulay, J., dissenti- ente. Stinson v. Scollick et al., ii. O. S. 217. Where only one ivitncss, and he a man of bad character.'] — 2. A new trial was granted after verdict for the plaintiff, on payment of costs, where the evidence at the trial for the plain- tifl" was not very satisfactory, and would have entirely failed without the testimony of one witness, who it was sworn was a man of bad character, and had stated after the trial that he had been hired to give evidence, the defendant also swearing that all that the witness had slated was false. Tal- bot V. MLDougull, iii. O. S. Gli. Boundaries of lots — MistaKe of witness.'] — 3. Where in ejectment, on the question of the boundaries of lots, a surveyor gave j)ositive testimony in favor of the lessor of the plaintiff, founding his evidence on the correct, ness of a line run by himself from a post which he had planted, and after some coflicting evidence the jury found for the plainfiff ; a new trial was grant- ed on an aliidavit from the surveyor that he had since the trial discovered that he had been mistaken in the post. Dor dem,. Case v. Magill, Hil. Term, 6 Wm. IV. N(in-attcndatice of subpoenaed wit- ness^ — 1<. It is no ground for a new trial tiiat a witness who had been sub- poenaed did not attend, having been engaged on some public works. Wood- ruff' V. Campbell, Trin. Term, 6 & 7 Wm. IV. Incomprtencyoftvitness — Ofjcction must he taken at trial,] — 5. A party cannot obtain a new trial on the ground that an incompetent witness has been examined against him, unless he took the objection to his incompetency at the trial. Doc dem. Sullivan v. Recul, iii. U. C. R. 293. Motion Inj plaintiff to increase his verdict, on the cd>sence of a ivitiiess.] — 6. The Court will not grant a new trial to the plaintiff (complaining of smallness of his verdict,) on an affida- vit that a witness was absent firom the province at the time of trial, and by whom he could better make out his case. Hodgkinson et al. v. Brown, iii. U. C. R. 461. NRW TKIAL. NEW TRIAL. 31t IV. Excessive or trifling Damages. Sre Sheriff, III. 4<. Torts — Excessive damages.'] — 1 . In an action for forts, the Court will not set aside a verdict for excessive dama- ges, except upon \ery clear and mani- festly strong; grounds. McDonald v. Cameron, iv. U. C. R. 1. [Also, see case 9, infra.] Covenant for good, title — Heavy damages — New trinL] — 2. Scmblc : That where lieavy damages are given in an action of covenant for good title, and it appears that the plaintill" knew the state of the defendant's title, the Court wdl grant a new trial, and will intend that in that case excessive damages have been given contrary to evidence. Emery v. Miller, Tay. U. C.R.461. Small ness of damages — Neiv trial at instance of saceessfnl party.] — '.i. Where the plaintilV's damages were as- sessed at a less sum than the evidence appeared to warrant, the Court, at his instance, ordered a new assessment on payment of the costs of the day. Leon- ard v. Pawling, iii. O. S. 17. [See case 8, infra.] Slander — ir)0/. damages."] — 4<. In slander, accusing the ])laintiH'of larceny and a verdict for 150/. damages, the Court refused a new trial, cither on the ground of excessive damages, or that one of the principal witnesses for the plaintiff was, shortly after the trial, con- victed of perjury, and sentenced to banishment. Eakins v. Evans, iii. 0. S. 383. Action for false imprisonment — Excessive damages.] — 5. A new trial will be granted for excessive damages, in an action for false imprisonment. Armour v. Boswell et al., Trin. Term, 4 & 5 Vic. [See case 11, infra.] Trespass for seduction— -Excessive damages.] — 6. In trespass for seduc- tion, the jury gave a verdict for the piaintiiT with 200^. damages, and the Court refused to grant a new '■■iVfor excessive damages. Ross v. Mcrritt, iii. U. C. R. 60. [See cases 13 and 14, infra.] Comjjlicatcd accounts — Conjecture of jury — Excessive damages. ] — 7, Where a plaintiti" and defendant have had open accounts for a long period, and have taken no pains to come to an understanding in regard to the terms of their dealing, or to preserve the means of proving the necessary facts, and the jurj' find more or less, upon conjecture, what the Court may think excessive damages, for the plaintiff — the Court will, however, very rarely assist the defendant on that ground, by granting a new trial. C irner v. Mc- Kintion, iv. U. C. R. 350. Action far costs of a qui tarn action — Damages small.] — 8. Tiie 18 Eliz. ch. 5 prohibits the compromise of a <|ui tam action without the leave of the Court. Where therefore a plaintifl', who had brought such an action, agreed to discontinue it upon lieing paid his costs, and in a subsequent action for those costs recovered much less than be thought the jury should have given him, and applied to the Court for a new trial, the Court, from the nature of the transaction, refused to give him any relief. Blceker v. Meyers, vi. U. C. R. 134.. Tort — Damages s^nall.] — 9. In an action of tort, when the defendant has had a verdict and the damages are but small, it is always with reluctance that the Court will grant a new trial ; they will only do so where the ordinary rights of property seem to have been lost si^ht of. Shencood v. Gibson, v, U. C. U. 205. Disputed item of plaintiff^s dc" trumdimproperly disalloived in/ jury.] — 10. Where a ilisj)uted item, forming one distinct head of the plaintifl^'s de- mand, has been improperly disallowed by the jury, the Court will grant a new trial, though the plaintiff has a 812 NEW TRIAL. NEW TRIAL. If. verdict for sonricthing — the principle upon wliich tlie Court refuses a new trial to the plaintiff for snialhiess of damages not being held to apply- Macklock v. Ghm, v. U. C. R. 229. Trespass for fa/se imprisonment — Excessive damages.'] — 11. IIel(l,\\m{ a verdict for 1000/. against the defen- dant, under the circumstances of the case, (as fully set out in the report), though in the opinion of the Court ex- cessive, could not be set aside on that ground. Rdjcrtsnn v. Mnjcrs, vii. U. C. R. 423. Itcmqf plaintiffs claim improjic?-- ly allmocd as (c sctn/J.'] — 12. A new trial will not be granted to a plaintill", in order to enable him to add to his ver- dict a trifling sum wiiich he says was improperly allowed as a set-oil" lo his claim on the first trial. PUuftcr v. Taylor, i. U. C. R. 159. Excessive damases in an action for seduction.^ — 13. Wliore in an action for seduction of the plaintiff's daui^h. ter, evidence had been {^iven of con- nivance on the part of tlie motlu^r, nnd great negligence on the part <)\' ivD father, and the jury found a verdict i'nc the plaintiff with 200/. dani!';:.-!. die Court granted a new trial. ii':dstead v. Wyllie, Tay. U. C. R. 71. 14. Gross neglect on the part of the parents is held to be a good ground for a new trial in an action for sotiuction. Hogle V. Ham, Tay. U. C. R. 333. V. Allowance of second or third New Trial. Verdicts conirary to laio ami evi- dence.'] — 1. The Court will grant re- peated trials where venlicts are render- ed contrary to law and evidence, es- pecially in cases affecting continuing rights. Kirhy v. Lcivis ct aL, i. U. C. R. 285. Laches of defendant — Second nev) trial refused him.'] — 2. Where a now trial had been granted to give an op- portunity to a defendant of setting up a defence, of which he did not avail himself, the Court refused again to in- terfile. Ross v. McNab, iii. 0. S. 309. "^erdict tivicc the simie,'] — 3. If a new tiial has been once granted, the Court will not again interfere on a ver- dict the same way, unless it be mani- festly against justice. Pciin ct al. v. RutLan, Easter Term, (» Wm. IV. 4. Where verdicts were twice found for a defendant, a second new trial was refused, liiirnsidc v. Wilcox, Mich. Term, 7 Wm. IV. Three verdicts a^ai/ist evidence- Third ncu) trial.] — 5. Tlie Court, under parlieular circumstances, declin- ed to grant a lliird new trial in eject- ment, though they thought the evidence strongly piei)onderated against the ver- dict. Doe dvm . Ilnrris el ux. v. Ben- son, iii. U. C. R. 1(54. Replevin — Pcrvcrscness of jury.] — G. Wiiere the Court has set aside a verdict for the defendant in replevin, upon the ground that he had no legal right of distress, and the jury have found a second time for the defendant, the Court will almost always grant a second new trial to the plaintiiV, without costs. Sanderson, et al. v. Tlie Kings- ton Murine Railway Company, iv. U. C. R. 340. Fraud — Third neio trial.] — 7. Wlicre (lie cpiestion of fact for the jury to decide is a (juestion of Iraud, and they have twice decided against the liaud, and in fa\or of the plaintiff, the Court will not, except in very glaring cases, iriant a third new trial. Hunter V. CorbvtL, vii. U. C. R. 75. Nein trial dttaincd on merits — Techniad dijection on second trial.] — S. Where the defendant had obtain- ed a new trial on the merits, and then, (or tire fust time, at ihe second trial, ob- jected that the |)laintiff had miscon- ceived his action, and should have brought trover and not trespass, which objection was overruled at the trial, and NUW TRIAL. NEW TRIAL.. 313 letting np not avail ;ain to in- 0. S. 309. —3. If a anted, the 3 on a ver- l)e niani- t ct nl. V. m. IV. vice found ,v trial was :ox, Mich. 'vidcnce— riie Court, :l's, dcclin. il in eject- ic evidence I St the ver- z. V. Bcn- oj jiiry.l «et aside a n replevin, ad no legal jury have ! defendant, ays grant a tiir, without mpany, iv. trial.^ — 7. for the jury ' fraud, and against the plainlin", the ,'ery glaring ial. Hunter a. ri merits — 'oml trial.^ had obtain- '.S-. and then, ond trial, ob- liad miscon- shoiild have ?pass, which the trial, and subsequently pressed in banc. : Hefd, that they would not, under the circum- stances, set aside a second verdict for the plaintifTon this technical objection. Jb. VI. Misdirection of Judge. See Bii,i,s of Exchange etc., IV. lii; VI. 13. — Carrier, .'). — Con- tract, 11. — New Trial, XL 7. — Partners etc., 3. JN'cio trials ?iot necessnrih/ &, 5 Vic, P. C. Macaulay,J. [See rule of Hilaiy Term 1«50, No. 39.] X. Other Cases, and riENKRAr. Practice in gkantinc; New Trials. ymentof xed and Dourt the be made rule for a ot paid in •;•, Easter disburse- trial was ts by the appoint- 3 taxation, xed vvith- e plaintilV ■d again to the Court WipSOtl V. ' rule for . Where a ayment of the indul- d promptly It of costs ; a time to annot pro- zes without will not, af- ed a rule to the rule and nefit of his OHV. Spar- 's — Further endaiit was iient of costs 1 the j)laintitr rule to enter r special cir- the rule for defendant a all the costs. Term, 4 & 5 «50, No. 39.] ND OrNETJAL iNTING Nf.W I NEW TKI.U.. See Absconding Debtor, 15. — Amkndwent, II. 11, 39. — E.IECT- ]vientJV(1),7; V.2,S; VIII. 15. JuRV, 4', (> — NoN.suiT, 1!), 20. — Sheriff, III. 14. — Vekdict, !). — Water, 3. Whc/i Court aiiposrs costs.'] — 1. In grantinii a new trial tlie Court im- posed costs because the ground on which it was granted was not taken at Nisi Prius. Griffiths v. Wcl/and Ca- nal Compa/i7/, Mich. Term, 2 Vic. Not granted merely as af light.] j — 2. New trials will not be granted | upon the extreme rigiit of the parly! applying merely, but only to advance I the substantial ends of justice, Broivn \ V. Street, i. U. C. R. 124.. ! Only granted to advance justice] ! — 3. A new trial will only be granted | to advance the substantial ends of jus- j tice when the grounds are discretionary | with the Court. Doc dem. Graham \.Edmo}ids(m, i. U. C. R. 2(>5. New trials refascd ulien justice hasbeen dime.] — 4. Where jui^tice has been done between the i)arties, the Court refused to grant a new trial u])on the ground that it had been agreed be- tween the coiiteiuliiig parties that a third person siiould have been applied to to settle the subject matter of the action, the third person being under no legal liabilitv to do so. Necils v. Wilcox, Tay. U. C. R. 358. Omission, by covnscl to sheie a. ccr- tainrightatNisi Prius.] — 5. Where the losing jjarty has (ailed at the trial, from the omission of his attorney to estai)lish some legal right he might have sliewn, the Court will exercise their discretion in granting a new trial; ihey will not grant this indulgence when an expensive litigation would be protracted about a trifling matter. iV trie v. Taylour, iii. U. C. R. 457. Omiss;ion by attorney to give notice ioprodncc] — b. The" Court will not grant a new trial because the delen- dant's attorney had omitted to give a notice to produce a deed, by which NCW THIAL. 317 omission the defendant was precluded from going into one branch of his de- fence, when the facts, if proved, would not have formed a legal bar to the action. Gates et al. v. Crooks, Dra. Rep. 459. Inqiortaut facts proved, hut omitted injudgeh notes.] — 7. Qiuetr: Where the judge who tried a cause has omit- ted to note the evidence of an impor- tant fact, which he charged the jury was proved, and upon which their verdict was founded, whether upon aflidavit that such fact was actually jn'oved, though it does not appear by the judge's report of the evidence, the Court will grant a new trial 1 Win- chester V. Cornell, Dra. Rep. 63. [See case 21, infra.] F/ai)iti(f entitled to something in the form of action chosen by him.] — 8. Where in trespass for taking staves, the plaintifl" recovered tv^enty pounds, where the law- on some of the facts which were improperly elicited at the trial was doubtful, but it appeared that the piaintiir was entitled to recover ."jometliing in that form of action, and the residue in another form, a new trial was refused, although a tender could have been pleaded to the amount of the whole claim if the action had been brought in another form. Ballard v. Hansom et al., n. O. S. 70. Amount of verdict large — No de- fence made — Me/its.] — 9. In this case the verdict for the plaintiff being for more than 300^., the defendant not having made any defence, because the judge at Nisi Prius would not try the cause by a special jury, the notice of striking such special jury being insuf- ficient — the Court granted a new trial, the defendant having made a strong allidavit of merits, and the amount of the verdict being ordered to be paid into Court, to stand as a security for the plaintiff. JJcll v. Fiintfoot, iii. U, C. R. 122. Troccr for a horse — Evidence of convwsioH — Neuj trial.] — 10. A, I 318 NEW TRIAL. NKW TKIAL. having been arrested at the suit of a third person, placed a mare in B.'s possession, on an agreement that B. should go, and if the parly arresting proved a demand against A., by his own oath or that of others, B. was to pay it and keep the mare till re-paid. B. did pay 10/., but without shewing that he did so in consequence of its being sworn to, and the mare remain- ing with him, he used her once in the plough. A. thereupon, without de- mand, brought trover, alleging that this use of the mare was a conversion, and obtained a verdict — the Court granted a new trial without costs. Forrester V. Spencer, iii. O. S. 47. JVeio trials will not he granted con- trary to justice.'] — 1 1 . The Court will not set aside a verdict for the plaint'uK where the justice of the case appears strongly with him, merely because there was at the trial a preponderating weight of evidence on the i)art of the ilel'eu- dant in support of a plea of the Statute of Limitations. McMillan v. Fair- field, ii. 0. S. 493. Where Justice ajtparently has not been done.] — 12. Where a trial was put off at the assizes on alVulavit of ihe absence of material witnesses, and on payment of costs of the day, and the defendants' attorney declined paying those costs himself, the defendants be- ing absent, in conseiiuence of which the trial proceeded, and no defence was made — the Court, on affidavits which gave reason to apprehend that justice bad not been done, and coi;- sideringthe large amount of the verdict, granted a new trial on payment of costs. Oliver v. Stephens et al., iii. O. S. 21. Ejectment — New trials not neces- sarily granted on merits,] — 13. Though a probability exist that a de- fendant in i!Jectment may have merits, the Court will not necessarily grant a new trial, the verdict in ejectment not being conclusive upon the parties. Doe dem. Stansfield v. Whitney, Tay. U. C. R. 64. Separate actions on a bond and mortgage — Same evidence — Incon- sistent verdicts.] — 14. Where to debt on bond usury was pleaded, and a ver- dict found for the plaintifl", and at the same assizes an action was tried on a mortgage, between the same parties, to secure the money on the bond, the same defence was set u[) and the same evidence was adduced, and the jury found for the defendant — the Court re- fused to set the verdict on the bond asiile. Wilsuti v. Hill, Hil. Term, 6 Wm IV. Ejectment — Defence of onortgage to a third party — New trial^ — 15. The Court will not grant a new trial to enable a mortgagor, being lessor of the plaintiff in ejectment, to shew his own tieed void for usury, and thus eject a stranger who sets up as a de- fence a mortgage to a third party for the premises in (picstion. Doc dcm. McBernie v. Lnndy, i. U. C. R. 186. Verdict on the merits — New trial on tccliiiical objections.] — 16. If there be a verdict lor the plaintiff on the merits, a new trial will not be graaied, because technically, a verdict should be found on some issues for the defen- dant, and where, if a new trial were granteil, a repleader would be award- ed, and a verdict ngain found for the defendant. llvUiwetl v. Enstivoodet al., Eiister Term, 4 Wm. IV. Granted to enable an executor to pleadplene administravit.] — 17. In a very hard case a new trial was granted to enable an executor to j)lead ))lene ad- ministravit. M( Martin v. Traveller, Easter Term, 6 Wm. IV. New trial to an executftr refused.] — 18. Where in an action against an ex- ecutor on the bond of his testator non est factum was the onlj plea pleaded, and the pinint " had a verdict, the Court refused to grant a new trial and allow a plea of plena administravit, on the affidavit of the executor that he had administered all the assets before NEW TRIAL. action brought, there being no satisfac- tory answer given why the plea had not been pleaded before. McDonald V. DeTuyle, Easter Term, 5 Vic. Mistake of Mtorney contrary to in- stnictions.l — 19. Where in trespass against a sheriff's bailiff for seizing goods the general issue only was plea- ded and the plaintiff had a verdict, a new trial was granted on payment of costs, on affidavit that the defendant had instructed his attorney to defend under writs of execution, and the at- torney had considered that the defence might be urged under the general issue. Williams v. Knaj)}}, Hil. Term, 4 Vic. Verdict for plaintiff — Demurrers against him — Amendment and oieiv trial.^ — 20. Where in an action of trespass there were several issues in law and fact arising on several special pleas going to the whole cause of action, and the plaintiff, before the argument of the denuniers, went to trial and assessed his daiuatres at ill. NEW TRIAL. 319 lOs., liaving proved only one act of trespass, and the dem\u-rers were after- wards admitted to be against him, the Court refused to allow hiui to set aside his verdict, amend his pleadings, and go to a new trial. Tyrrcl v. Myers, trin. Term, 5 & 6 Vic. Rejection of evidence.'] — 21. Where a new trial was moved lor on the ground that evidence had been rejected which should have been received, and the judge's notes at the trial did not shew the rejection, and he did not recollect it, a new trial was granted on the ground of misapprehension, on payment of costs. Proudfwt v. Trotter ct uL, Mich. Term, 6 Vic. Inconsistent verdicts by same jury.] — 22. Where a jury found a verdict for the plaintiff and M. damages, with a condition that each parly should pay his own costs, and the Court having refused to receive the venlict in that way, they altered it to a verdict for the defendant with the same condition, and subsequently on that verdict being refused also, to an unconditional ver- dict for the defendant, a new trial was granted without costs. McKay v. Lyons, Easter Term, 7 Vic. Misunderstanding of counsel re- specting verdict.'] — 23. Where a ver- dict was taken subject to the opinion of the Court upon certain points as to whether the plaintiff was entitled to recover substantial or merely nominal damages, and there was a misunder- standing between the counsel of the respective parties as to the terms upon which the verdict was taken, a new trial was granted without costs. Mc- Lcod V. Boulton, ii. U. C. R. 44. Trespass — Verdict against four de- fendants — Neiv trial to one.] — 24. A verdict in trespass against four was al- lowed to stand against three defendants, and a new trial was granted in favor of the fourth. Davis v. Moore et al., ii. U. C. R. 180. CluDige of rule from non-suit into neio trial.] — 25. Where a defendant obtains a rule for a non-suit as on leave reserved, and it afterwards appears that no such leave was reserved, the Court will not allow him to change his rule into a rule for a new trial. Doe dem. Gilkisoji V. Shmry, ii. U. C. R. 183. When smallness of damages no dijection.] — 26. Where a verdict would be conclusive to the parties' rights, smallness of damages would be no objection to setting it aside. Soper V. March, Hil. Term, 6 Wm. IV. Defence of forgery to an action on a promissory note — New trial refus. ed.] — 27. Where the defence intended to be urged by the indorsers of a note was forgery, and they defended on that ground at the trial, and the plaintiff re- covered, — the Court refused to grant a new trial. McLaren v. Mtiirhead et al., iii. U. C. R. 59. Refusal of judge at Nisi Prius to admit evidence when case closed.] — 28. It is no ground for a new trial that the judge at Nisi Prius refused to al- low the plaintiff, at\er he had closed 320 NEW T «!*.!.. NEW TRIAL. his case, to supply the evidence of a fact he had omitted to prove. Bene- dict V. Boulton vtaL, iv. U. C. R. 90. Netv trial not granted to f arty nn- siKCCssful through his own nrg/i- gence.j — 29. The Court tyrant now trial?'' < 1^0 purpose of justice. They V'lV .'. '.nt them to protract an iillo litii ■ JUt facts which neither party will take the troul)lc to make clenr, though the means of doina; so are shov 'i to i'< •' ithin their reach. Where a jaiy, inn mink'ng it safe to rely on verbal eviilcuju as to the con- tents of a lost will when ilie party of- fering it is shewn to have been a\vart> of the existence of a written copy of the will which he might have produced at the trial, gave a verdict against him, the Court will not grant a new trial. Doc dem. Wheeler v. McWil/iams, iv. U. C. R. 30. Verdict for defendant on the evi- doice and irithoiit /nisd/rect/on — When, ncio trial granted.'\ — 30. In an action on the case for negligent driving when the fact of negligence goes fully to the jury and they find for the defendant, and no misdirection on the part of the learned judge at Nisi Prius is complained of, tlie Court, un- less it appear that the evidence is con- clusive in favor of the plaintill", will not grant a new trial. Kenny v. Cook et al., iv. U. C. R. 2G8. Verdict contrary to evidence of nn- impeached uitfiess.'\ — 31. A new trial will not be granted because the jury find for the defendant in the absence of any evidence to contradict the un- impeached witness of the plaintiff. Tiie jury are to form their verdict upon the whole facts and complexion of the case before them. Lattc et al. v. Jarvis, v. U. C. R. 127. XI. Of the Motion for a New Trial. See Jury. 9.— New Trial, 1. 12 ; 11. 3, 13 ; VIII. 1, 7. et passim. When to be made.'] — 1. The mo- tion for a new trial must he made within the firr-t four days of the term succeeding the trial, i. e., before the exi)iratioii of the rule for judgment. Orser v. SlicJdcr, Tay. U. C. R. 46. New groioids.^ — 2. Semble: On motion for a new trial after orgmncnt, the Court will allow a new ground to be taken by the party moving if the justice of llie case require it. Per Sherwood, J. — Macaulav, J. contra. Vary v. Minrhead, ii. 0. S. 121. Ajfidjivit suvrn hrfnre itartner of dcftndanls' attorney] — 3. A new trial was moveil by the defendants on an alfulavit sworn boll)retho |>artnerof the defonilants' attorney. J fe/rf, on an exception being taken when shewing cause, that the rule must on that ^'round be discliarttcd. WJdte v. Fetch ct al., vi. U. C. R. 13. A/fidai'it (if icife of "party to the caHf.e^ — \>. An ailidavit of the wife of a party to cause cainiot be read on motion for a new trial. IJcndcr&onv. Wallace, Easier Term, 2 Vic. [Affiilavils of jurors— See Jury, 9, and noli- iheretn.] Ohjcctions raisedin banc, not urged at Nisi Prill a.] — 5. A party moving lor a new trial cannot take an objec tion which he did not urge at Nisi Pri- us. Hall V. Shannon, Easter Term, 2 Vic. Tresspass for assault and battery — Pleadings — jEiudencc.] — (i. Where in trespass for assault and battery the defendant pleaded molliter nmnus im- posuit in defence of jiossession, and the plaintiir rei)lied de injuria: Held, on a motion for a new triiil, that the plaintiff was at liberty to shew that the defendant'sjustification was not proved although ho had made no objection to it at the trial, and tliat he might aban- don the ground which he had taken there, and retain his verdict for want of proof of justification. .Roddy v. Mofalt, Easter Term, 2 Vic. NIAGARA HARBOR AND DOCK CO. NOLLE PROSEQUI. 321 7. Where a party at the trial does not object to the charge of the judge, he cannot afterwards urge, on a motion for a new trial, that there was a miss- direction, although the charge be in fact open to exception. Blanncrs v. Boulton ct oL, Mich. Term, 7 Vic. 8. Where in an action of covenant for non-payment of rent on a lease for a year, by which an entire rent was reserved, and in which there were various other covenants, breaches of which were also assigned, and the plaintilThad a verdict — the Court re- fused to grant a new trial, on an ob- jection made in banc, but which had not been taken at Nisi Prius, that the action was brought before the year ex- pired when the rent was to he paid. Steiyliens v. Allan, ii. U. C. R 282. 9. In ejectment by co-heiresses it was proved that the party in posses- sion had acknowledged the ancestor's title, and it was also shewn that the lessors of the plaintiff were his children, but the jury found for the defendant ; on motion lor a new trial, the Court would not entertain the objection that it had not been proved that the lessors were the legitimate children of the alleged ancestor, as that point had not been raised at the trial. Doe dcni. Morroiighet al. v. Maybee, ii. U. C. R. 389. Dock Company, incorporated by 1 Wm. IV. ch. 12, on a parol agreement entered into by the company to build an engine for a steamboat. Ilamilton V, Niagara Harbor and Dock Coin- j)any, Easter Term, 5 Vic. NIL DEBET. See Limits, II. 9. NEW YORK. Sec Foreign Law, 5. NEW YORK CURRENCY. See Currency. NIAGARA HARBOR AND DOCK COMPANY. Assumpsit againstfOn a parol agree- ment.'] — Assumpsit is not maintain- able ngainst the Niagara Harbor and 2 s NIL HABCIT IN TENEMENTIS (PLEA OF). Src Covenant, 11(2), 4. NISI PRIUS (PROCEEDINGS AT). See AiMENDMENT, II. passim. — At- tachment, II. 7. — Attorney, IV. 2. — Bond. II. 10. — Commission to Examine VV^iTNEssES, 2,7. — Costs, I(.3).— Ejectment, IV(1),6; VIIL If). — Evidence. — Nonsuit. — No- tice to Prodice, 4. — Onus Pro- bandi. — Practice, III. 5. — Svv- pcena, 2, 3. NISI PRIUS RECORD. See Record (Nisi Prius). NOLLE PROSEQUI. See Action, 6. — Irregularity, U. After judgment.] — 1 . A nolle pro- sequi cannot be entered after judgment. Roach V. Potash ct uL, Mich. Term, 3 Vic. Declaration containing tuv counts — Nolle jn-osrc/ni to first — Eiidence ntuhr second.] — 2. The plaintiff de- clares on two counts — first on a promis- sory note, second on an account stated ; to the defendant's plea lo the first count the plaintiffreplies, to which re- plication the defendant demurs ; the plaintiff then, to avoid the risk of the demurrer, enters a simple nolle pro- sequi to the first count: Held, that .-'SB pm NON JOINDER. NONSUIT. the plaintilT might give the note in evi. deiico under tl»o sccoiul count, on the account sfatoil : Scmb/c, such ovidence vyould have been inadniissil)le il' the nolle prosequi had involved an express admission, as it some times docs, that the plaintifl'had no ripjht of action on the note. Leslie v. Davidson, iii. U. C. R. ir)9. As to one nf two (Irfciidcmts.'] — 3. Where a jilaintillsues two or more de- fendants as executors, the enterin;; a nolle prosequi and discontinuing as to one, is not a discontinuance of the action. Massori v. Ililf. ct al., v. U. C. R. CO. NON PROS. Sec Judgment of Non Pros. NOiAIINEE OF THE CROWN. Bee Dower, 1. 1. — Estoppel, 1,2,3. NON ASSUMPSIT (PLEA OF). The rule making the plea of non- assumpsit to a bill or not(^ bad, is con- fined to cases where the action is between the parties to tiie bill or note ; it does not extend to executors, &c. Masson v. lliLl et al., v. U. C. R. (iO. NON DAMNIFICATUS (PLEA OF). Sec Bond, IL IS). — Indemnity Bond, passim. NON EST FACTUM (PLEA OF). fice Arbitration and Award, VI (2), 10.— Bond, II. 2.— Limits, II. 3. — Variance, ir>. NON FEAZANCE. Sec Case (Action on the), k NON JOINDER. See Abatf.ment, 1, 3, 4, fi, 8, f>. — lill.LSOF KXCHANGEETC.,IV. 2. — Nonsuit, (i. NONSUIT. Sec Action, 6. — Arbitration and Award, VI(2), 1J>.— Bail, II. U. Ejectment, V. 2,7, S. — Glaran- ti;e, G. — Indemnity Bond, ti. — In- teri'leadeu,?. — Libel and Slan- der, III(11, passim. — Limitations (Statute' of), IV. 10, 11, 12.— !ftL\Licioi's Arrest, 20. — Misno- mer. — New Assi<;nment, 3. — New Trial, II. 5 ; X. 25, — Penal Action, 3. — Use and Occupa- tion, 4 — Verdict, 9. Yoluntary — Sitting aside."] — I, Where a plaintiU' sulVers a nonsuit vol- untarily, the Court will not afterwards set it aside. Saunders v. Flaytcr, Tay. U. C. R. U, F<>i)it mast he reserved at Nisi Prias.'] — 2. A nonsuit cannot be moved t()r in banc, unless a point has been reserved at Nisi Prius. Brwk- Jield V. Signr, Taj . U. C. R. 2()3. 3. A nonsuit cannot be moved for in banc, unless it lias been moved for at Nisi Prius, and the point reserved by the jmlge with the plaintilf's con- sent. Ilaidey v. Hum, Tay. U. C. R. 529. Elfcet of examijiation of witness after 'Illation for.] — -i. If a delendant move a nonsuit, anil afterwards ex- amine witnesses, the plaintiif is entitled to any benefit wliich he can obtain from the evidence in support of liis case. Brock v. BT'Lcan, Tay. U. C. R. 548. Absence ofattmney and counsel,'] — 5. Where a cause is called on lor trial at Nisi Prius, and neither counsel or attorney appears (or the plaintiff, a jury may be sworn and a nonsuit ordered. Falls V. Lewis, Dra. Rep. 281. Nonjoinder.] — *?. Nonjoinder of a i)laintiir in assun'iijit is a ground of nonsuit. Walker ct al, v. McDon- ald, iv. 0. S. 12. 'fS NONSUIT. T^me for choosing nonaiiit.'] — ^7. A plaintiir faiinot elect to take a nonsuit after verdict rendered for the delen- dant, but Ijefore it is recorded. Wldt- cn ct al. V. Cavcdcij, Hil. Term, 6 Wni. IV. Although, j)lfiadings si(p2wrtcd hi/ crid(iice,'\ — 8. A plaintilfrnay he non- suited allhougli liis evidence support his ])leadings. MtPhcmm ct al. v. Hamilton, Easter Term, 7 Wni. IV. Objections must he first raised at Nisi Piius.'] — }>. A party moving to enter ;i nonsuit cannot take an ohjec- tiou vvliich lie did not urge at Nisi Prius. Hall v. Shannon, Easter Term, 2 Vic. OinissifDi if a promissori/ note in jMrticuliiis.'] — 10. Where a declara- tion contained a count upon a promis- sory note and conmion counts, and the plaintiir, under an order for particulars, gave an account for goods sold and de- livered oidy, but at the trial the defen- dant ^cross-examined upon the note, and allerwards at the close of the plaintiff's case obtained a nonsuit be- cause the note was not mentioned in the particulars, the nonsuit was set aside without costs. Bigclow v. Sjmiggc, Hil. Term, G ^Vnl. IV. Joint coiil factors — Verdict against one, nonsuit as to others — xVc/f //• — Judgiiicnt by default by one — Nonsuit us to both.] — 17. Where in an action agi'.inst the maker and in- dorser IEN1', 7. NoTICE OF TuiAL, 1, 7, 13. Service.'] — 1. When a defendant had an attorney on whom service of several papers had been made, the Court set aside an assessment of damages, the notice having l)een served on the de- fendant only, and not on liis attorney. Ferric v. TannahiU, Dra. Rep. 340. Short notice.'] — 2. Where a ])erson obtains time to plead on condition of taking short notice of trial, this condi- tion (Iocs not compel him to take short i NOTICK or TRIAL. NOTICE OF TRIAL. .327 Jo- votirr of (isxrsxmr))! — this lurfhor con- tlilioii slioiilil !)»' iiiisertijtl in tlie rulo. Wrinht V. Mrriiriso/i ct (iL, i''. U. C. R. Uf). NOTICE OF DISHONOR Sec Bills op Exchange etc., III. NOTICE OF MOTION. Scr iNTF.RI.om'OUY .TuJXiMKNT,?. Iuri:(;li.aiutv, 12, l(i, 20,21.— ,Ii;nf;MKNT as \s case of Non- suit, [II. 4'. — Notice of Tuial.S. l-t. — Shkkiff's Sale, 8. — Writs OF Lnuuiky etc., 4'. NOTICE OF TRIAL. Sec. Costs, II. ]):tssim. — Juiigment AS IN case of Nonsuit, I. 8, !). frrrmthirit!/.^ — 1. Notice of trial, givi'ii iiisloaii (if notice of .isiscssinenf, is irrciiiiliu-. liilliiuss ct al. v. licid, Hil. Term, G Win. IV. [Soe case 7, infra.] Verdict net aside for trnntnf.'] — 2. Where a demurrer was taken olf tlie flic as a dilatory plea by liie order of a judge, and tlie defendant having pleaded, the plaintiff proceeded to trial without serving a notice but merely informed the defendant that the cause was entered for trial, and afterwards took a verdict, the Court set the verdict aside, the defendant having been enti- tled to short notice of trial. Tn/scolt et al. V. Goldic et al., Easter Term, 6 Wm. IV. [See cases 6 and 8, infra.] Service.^ — 3. It is not sufTicient to leave a notice of trial in the ollice of the defendant's attorney ; it must be left with some person doing business there. Brewer v. Bacon. Mich. Term, 7 Wm. IV. [So Go* Company v. Kissock, 1 1 , infra.] Leave to 2^^ end de novo — Frrsh vo. tire miist he "/',7.J — 9. A copy if 328 NOTICE OF TRIAL. NOTICE TO PRODUCE. a noticp of trial can only be affixed in the oflice of tlie deputy clerk of the Crown in the district in which the action is brought. When, therefore, a testatum writ only had been issued into the district where the notice had been put up, the notice of trial was held to be irregular. Chase v. Gilmour, vi, U. C. R. 604. Umal terms — Shm-t notice — Ser- vice.'] — 10. Where a defendant obtains time to plead on " the usual terms," he is bounu to take short notice of trial. A notice of trial not addressed to the defendants' attorney, but served upon their town agent, with information for whom it was intended — Held, a sulli- cient notice. Senior v. McEiven ct (d., ii. U. C. R. 95. [See also case 15, infra.] Left at an office of the attornei/.] — 11. Loavinsi a notice of trial ai an office of an attorney is not a service, unless it is sworn to have been given to some person there. Consumer^ Gas Company v. Kissock, v. U. C. R. 542. Partners — One siq?is notice, the other appear/.)! g on the ■rerord.'] — 12. SemJdc: That a notice of trial can- not be said to be irregular because A., one of two partners, as attornies, signs the notice of trial as tlie plaintiffs' at- torney, although 13., the other partner, appeared as the attorney on the re- cord, there having been no order to change the attorney. Gamble ct al. V. Rees, vii. U. C. R. 40(j. To try issues and assess damages ivhen no issues in fact.] — 13. Where the notice of trial is to try the issues and assess the damages, and there are in fact no issues on the record to be tried, the notice of trial as to the as- sessment is not therefore irreg; lar. Ih. Irregnlarityin date — Hmo cured.] —14'. A notice of trial naming Friday the 19th of May, instead of Friday the 18th, is an irregular notice ; but if the defendant intend to rely upon it as «uch he must give notice to that cflect to the plaintiff before the trial, other- wise the irregularity will be cured. Gordon v. Clcghorti, vii. U. C. R. 171. Serviccon an agc?it.] — 15. Sc?nhle : That the service of a notice of trial upon the agent of an attorney, who is I himself the defendant in the action and not rej)roscnting another, is a good ser- vice. Ba/i/c of Upper Canada v. liMnson, vii. U. C. R. 47S. Blanaging clerk accepting notice nunc pro tunc icitliout tlie knowledge of the princijvd,] — Ifi. A manag' . clerk in an ollice has power to bind lii» principal by accepting a notice of trial as of an earlier date than it was actu- ally delivered, unless the principal promj)tly repudiate the acceptance, and give notice thereof to the oppo.site party. Orr v. Stahback, Trin. Term, 3 & 4 Vic, P. C. IMacaulay, J. NOTICES (VARIOUS). See Agrekment, 4. — Arbitration AIM) Award, V. 3, 5; VI(2),4, IS; VUI. 1. -Arrest, II. 16.— Bankrupt etc., 13, 14. — Demur- prus, 17. — jOi.stress, I. 15. — Dis- trict Council,, 10. — Indemnitt Bond, 3. — Indian Lands, 2. — In- solvent ETC., 20, 21. — Patent, 2.— Set-off, 2.— Sheriff, I. 8, 9. Term'3 Notice. — Trover, 1. 4. NOTICE TO ADMIT DOCU- MENTS. See Bond, II. 10. NOTICE TO APPEAR. Sec Ejectment, II. 7, 8; III. 10. NOTICE TO PRODUCE. Sec Ejectment, VIII. 9. — Evidence II. 2, 3.— New Trial, X. 6. ■■»«!■« rial, other- be cured. C.R. 171. ). Scmhle : cc of trial cy, who is action and a good ser- ^anada v. mg notice knniclrdge manag' . tobindliin tice of trial : was actu- principal icceptance, le opposite !'rin. Term, US). IBITRATION ; VI(2),4, , II. 16.— . — Demur- . 15.— Dis- Indemnitt Ds, 2.— In- — Patent, IFF, I. 8, 9. VEU, 1. 4. ' DOCU- 0. EAR. ^; III. 10. OUCE. —Evidence L, X. 6. MOllCK TO PRODOCE. ClerkaJ, error.'] — 1. Where, in an action on the case for a inali(vous ar- rest the plaintin''s attorney served the defendant's attorney witii a notice " to produce the writ of ca. re. issued, &c., at the suit of A. against the de- fendant in this cause:" Held, that the notice was suflicient to let in se- condary evidence, the mistake in using the word •' defendant" for " plaintiff," being a mere clerical error, which could not mislead. Wilson v. Gilmour, v. U. C. R. 212. Sufficiency of service as to time.] — 2. The sutliciency of a notice to pro- duce, with respect to the time of ser- vice, seems to rest with the judge presiding at the trial. James v. Mills, iv. U. C. R. 366. [So per Parke, B., in lAoyd v. MoHyn, x. M. & W. 488. See further, cases 5 & 6, in Ira.] 3. Queere : Can a notice to produce be served on the agent of the defen- dant's attorney ? lb. 4>. Qucerc also: Has the plaintiffa right to call on the defendant's attor. ney in Court, to say whether he has or has not the document (a writ in this case) in his possession ? Ih. Sufficiency of time — mien notice dispensed with.] — 5. In an action of trespass against commissioners of a court of requests for seizing the plam- tiff's property under an illegal execu- tion, said to hav,e been issued by them, a notice to produce the writ served on their attorney four days after the com- mencement of the assizes, the defen- dants living more than ninety miles from the assize town, was held insuffi- cient: Held also, that the necessity for the notice being given was not re- moved by the writ being pleaded in justification, the general issue being also on the record. McCrae v. Osborne et aZ., Easter Term, 7 Vic. 6, Where the defendant residing in the assize town, was served upon Saturday with a notice to produce a document in his possession on the fol- lowing Monday: Hc/rf, that the notice 2 T NUISANCE. 339 v/as served in sufficient time. Robert" son v. Boulton, Hil. Term, 6 Vic. NOTICE TO QUIT. Sec Ejectment, I. passim. NUISANCE. See Gas Companies, 1. — Highway* 1, 2.-PlEADING, II. 36.-WATER, 4». Abatement of nuisance by a private person — Excess.] — 1. A person who takes upon himself to abate a nuisance, for instance, a mill dam, may be called upon to pay damage for any injury done to the plaintiff's property beyond what was necessary for removing the public inconvenience. Truesdale v. M'- Donald, Tay. U. C. R. 153. Action by reversioners — Damages.'] — 2. In an action on the case by re- versioners for a serious injury to their reversionary interest by the erection of a nuisance in a public highway, the jury are not necessarily restricted to a verdict for nominal damages on the first trial, but may give damages com- mensurate to the injury which the plaintiffs may sustain by the possible continuance of the nuisance. Drew ct al. V. Bab?j, i. U. C. R. 438. Reduction of verdict on abatement of nuisance — Release.] — 3. Where ill an action on the case for a nuisance by landlords as reversioners they re- covered 250Z. damages, the Court granted a rule nisi to reduce the ver- dict to one shilling on the nuisance being abated within a certain time, unless the landlords obtained a release from their tenants to the defendant of any cause of action accruing to them from the nuisance. The rule was af. terwards discharged on a release being produced, although the release was not exactly in accordance with the terms of the rule. Drew et al. v. Baby, Mich. Term, 5 Vic. Mi I 330 NUL TIFX RECORD. ONUS PROIIANDI. Qtucre: Wliother the Court had power to make the rule absolute? lb. Dcd(iraii(»i.'\ — 4. Srni///c: That a declaration would he good in charging, in general terms, the defendants witli causina; olTensive vapors to arise &c., without assigning the particular cause of the vapors. Were it however a good ground of special demurrer, the defect would he cured by the ])!ea undertaking to ilescribe the i auses \-c., and to justifv them. Wdtso/i v. Gas Company, v. U. C. R. 2t)2. NULLITY. See Abatkment, 3. — Appearance, 4, 5, (i. — AuRKsT, L 21'. — Bail, IIL 2. — Capias ad Satisfacikn- DUM, 1'). — Demurrers, 5. — Es- cape, 23, 24. — Execution, S. — Interlocutory .Tudgm ent, 3, 4, S. Judgment, 10 11. — Judgment as IN case of Nonsuit, IV. 4, 5, 6. Mandamus, 13. — Practice, 1. 4. Fili/i^ ilrclaniti()ns.'\ — A declara- tion fded before the return of tlie writ and the aHldavlt of service filed is a nullity, as well as a declaration fded more than a year after process is re- turnal)!e. Forrester v. (Jrciliam, ii. 0. S. 3(io. NUL TIEL IlECeRD. Sec Bail, II. 4. (latter i)art). — Costs, IV(2), 2. When p/fa of, served, issue is jedn- ed — Demurrer.^ — 1. Upon the plea of nul tie) record being pleaded by the defendant the issue is complete, and it is unnecessary for the plaintilF to re- ply ; but if he should do so and pray an inspection, and the defendant should demur on the ground of informality, though the replication be unnecessary, the defendant might have judgment on demurrer. The demurrer to the re- plication in tills case was held bad, the grounds taken being insullicient. Grantliam v. Jarvis, vi. U. C. R. .'ill. Amendment of declaration after issue joined on.'\ — 2. After issue join- ed on nul tiel record, and a trial, the Court permitted the plaintiff to amend his declaration. Church v. Barnhart, Dra. Rep. 456. NUNC PRO TUNC PROCEED- INGS. See Judgment, 20. — Notice of Trial, 16. — Practice, II, 7. NUNQUAM INDEBITATUS. See Pleading, VIII. 6. OFFICES (SALE OF). See Bond, I. U. ONTARIO (LAKE OF). Sec Wat[.r,4. ONUS PROBANDI. See Attorney, Til. 3. — Bills of Ex- , change etc., VI. 4. — Covenant, 11(2), 12. — Indemnity Bond,6. Um7eniS-H TUw.lII.]— 1. Where a vessel is seized as not bi'ing British ' ul'it, under the provisions of the sta- tute of 7 it 8 Wm. III., the onus pro- band! lies upon the claimant — i. e., to recover, lie must prove that the ves- sel in (juestion was built at a British port. Rr.c v. jVash, Tay. U. C. R. 259. AssHt)ipsit — rira, antrc action — Onus on defendant.^ — 2. Where, in assumpsit, the defendant pleaded that the plaintiff had im])lead liim in a form- er action on the same promises, and that the defentlant liad in that action recovered judgmcnt,to which tiie plain- tiff replied, that the action in which the m OSVS FROBAMM. ORDNANCE DEPARTMENT. 331 judgment was recovered was not on the same promises ; it vws held that the issue was on the defendant, and that he must prove the record of the former recovery. O^Ncill ct al. v. Lcigkt, iii. U. C. R. 70. Covcttont for title — Pica, srizin — Onus on dcfcnduiU.] — ^3. Where to a declaration in covenant for title gene- rally, and a breach that defendant hitd no title, the defentlant plead(>d a seizin in fee: Ildih that the issue lay upon him, and that he mustshew such seizin by proof of actual possession at some time as prima facie evidence of his estate in fee, althousfh iht; plainlill' oflered no evidence in support of his breach. But the rule is otherwise when the covenant is only aL'ainst llii> party's own acts. McKhmon v. Bur- rows, iii. 0. S. 114<. [Upheld in next case.] 4. In an action on a covenant for title where the defendant pleads thai he was seized in the terms of the cove- nant, the onus of proof lies upon him, and the plaintitV need not first give evidence of a hreach to entitle himself to a verdict. Lrmcsnricf v. Willaid, iii. U. C. R. 28). Prima facie i-i^lit tn inhriit maih- out h/jplaintilf — PrnofoJ' nearer hrir on defendant.'] — 5. Where the lessor of the plainliir in ejoclmeiit, capaMe of iiiheriiiiig and prima lacie entitled to inherit, makes out a reasonable case, the Court will throw upon the defen- dant, especially if he be a stranaer to the title, tlie onus of shewing a nearer heir. Where, lor instance, the lessor of the plaiiitiil" claims by descent as the brother of an elder brother dying without issue, proved by persons con- nected with the family "that they had lieard of the elder brother's marria;ie many years asro, but knew nothing of his having any issue'" — the Court held this evidence suiriciem, in the absence of any jiroof to the contrary, to entitle the lessor of tlic plaintifl' to recover. Doe dcni. Place et al. v. Slcac, iv. U. C. R. 3G9. Ejectment — OmtstosheicA' Wm.W. ell. 1 inapplicable.] — ti. In an eject- ment the burden ot |iroof to shew that the statute 4 Wm. IV. ch. 1, sec. 17, is inapjilicab'Ie is thrown upon the defendant. Doe dem. MrKoy v. I Purdy et al., Easter Term, 4 Vic. Action on a, note — Plea, an consi- deration — Onns on. dcfetahuit.] — 7. In an action on a promissory note the defendant jjleads no consideration, up- on which issue is joined, the deten- dant must iinj>eacli the consideration ; and it is not necessary for tlie plaiiititf to prove the consideration in the first instance. Sutherland et cd. v. Pat- terson, Mich. Term, 6 Vic. ORDNANCE DEPARTMENT. Cfnttract entered into a-itli a co7n- Dtissariat oljlrcr — Action, tlicrcon (tijiainst ordiicinee dcjuirtvient.] — 1. The plaimill's tendered )i)r the construc- i tioii o(" a lake wall in lidul ol" the bar- racks above ToroMto on the shore of Lake Ontario, and their tender being accepted by the commissariat otlii-eral Toronto, an agreement was executed between the plaintiffs of the one part, and " assistant conuuissary general Tln)mpson, acting on behalf of Her Alajesty, her lieirs and successors," of the other pari, whereby the plaintilTs engaged to execute the work according to their tender, and in conformity with the ))lans and specifications in the commissariat ollice, to which all the jiarties attached their signatures '" preparatory to their beintr lodged with the royal engineer deparlmeni lor the guidance of all concerned ," and it w.as staled in this contract that the " plain- tiir sliituld be eiititlcHJ to receive from HiM" Majesty's government for the per- l()rnnince. of the saitl works to th(^ sa- tisfaction of the royal ciiirineer de- partment, the sum of 27Sti/. 7s. Mf,'. • 11 S32 ORDNANC£ DEPARTMENT. PARKMT AND CHILD. currency, to be paid by the ordnance department by draft on the militaiy chest, payable in bank notes or specie at the option of the commissariat de- partment. The plaintiffs under this contract, upon the authority of the provincial act 7 Vic. ch. 11, sued tlie principal officers of Her Majesty's ordnance on the common counts for certain extra work. Held, that this was an agreement between the piain- tiiTs and the commissariat department, and that therefore the plaintifls had no right of action under the statute against these defendants. Quare: Suppose the contract had been clearly made between the plaintiffs and the ordnance department, could the plaintiffs have recovered against the defendants under the 30th clause of die provincial act 7 Vic. ch. 11? Can the provincial par- liament constitutionally give a right of action against the Board of Ordnance, a military department of the Imperial government? Qucerc also: Does the 30th clause, assuming it to be consti- tutional, give a right of rfction against the ordnance department upon an im- plied, as well as upon an express con- tract ? Tally etal.v. The Pi'incipal Officers of Her Majesty's Ordnance, V. U. C. R. 6. 7 Vic. ch. 11, set'. 30 — Actions.^ — 2. The statute 7 Vic. ch. 11, sec. 30, enables the principal officers of Her Majesty's ordnance to sue in their cor- porate capacity for the price of ord- nance stores sold by them before the passing of that act. Principal Offi- cers of Her Majesty^s Ordnance v. Johnson,}, v. C.R. 198. 7 Vic. ch. 11, sec. 4 — Leases A-c.^ — 3. The 4th clause of the Ordnance Vesting Act, 7 Vic. ch. 11, only pro- tects persons who at the lime of the act passing held an assurance derived under the officer in charge of the ord. nance, of some certain or existing estate or interest in any portions of the lands about to be vested in the ord- nance ; a party, therefore, who pro- duced merely a written receipt of rent from the ordnance officer, but could not shew any leaSe in existence at the time of the land being vested in the ordnance, or that a term had ever been created, was held not to come within the protection of the act. Doe dem. Mos^rove v. L'Esjjerance, vii. U. C. R. 3W. OVERHOLDING TENANT. Sec Costs, VH. 6. — Ejectment, I. 10. — Landlord and Tenant, U. 2, et seq. OYER. See Arbitration and Award, VI(2), 10. Held, that an (L. S.) need not ba inserted in a deed set out uj)on oyer, Moffatt ct al. v. Loucks, Tay. U. C, R.4.16. [Also, see Process, 9.] PARENT AND CHILD. See Guardian.-Husband and Wife, 5.-Infant,20.-Limitations (Sta- tute of), n. 19. — Master and Servant, 2. — Partners etc., 11, Seduction. — Trespass, I. 20. 1. Application to the court, as against the mother, by the father, for the custo- dy of his child. — Queere, the kind of application the father had better adopt to bring the matter fully before the court. Regina v. Sheriff, vi. U. C. R. 197. Father^ s right to custody of child — Ofdcr of court, how obeyed by iiwther."] — 2. Tiie order of this court, com- manding the wife to deliver to the husband the body of their child, is suf- ficiently complied with by the wife placing the ciiild in the charge of the husband. If the child return of her own will to tlic mother, and is not afterwards forcibly detained, the Court will not further interfere. iJ., vii. U, C. R.403. PARLIAMENT. PARLIAMENT. See Elections. — Mandamus, 3, 14. Sheriff, II. 7. — Witness, 2. Power to imprison far contempt. 1 — 1. The House of Assembly has the power of imprisoning persons guilty of contempt in answering or refusing to answer questions before a select com- mittee. ]\TNab V. Bidivell ct al., Dra. Rep. 152. Action agaiitst a member — Pro- ■ceediugs-l — 2. A member of the Pro- vincial Parliament must be sued by bill and summons, and not by capias. Pkelps V. McKenzic, Hil. Term, 6 Wm. IV. 3. A member of the Assembly is entitled to the privilege of being sued by bill and summons from the moment of his election, and a writ of ca. re. issued against him on the day of his election, is irregular. Watsonv. Er- matinger, i. U. C. R. 334. Proceedings, when sued vAth others.'] 4. A legislative councillor should be proceeded against by bill and summons, although he be sued jointly with others; and if he be sued by capias, the motion should be to set aside the writ as to him, and not to set aside the service. Hincks V. Crooks et al., Easter Term, 2 Vic. Original summons to warrant tes- tatum] — 5. The Court gave leave to issue an original summons, to warrant a testatum issued against a member, after motion to set the proceedings aside for irregularity. M'Koane v. Pother gill, Tay. U. C. R. 481. Variance between bill and declara- tion.] — 6. In an action against a per- son having privilege of parliament, the declaration will not be set aside for a variance between it and the original bill in a material allegation. Hill v. McNab et al., i. U. C. R. 413. Teste of summons.] — 7. There must be eight days between the teste and return of a writ of summons sued out PARTICULARS OF DEMAND. 333 against a member of parliament. Lyt- ter V. Boulton, v. U. C. R. 632. PAROL EVIDENCE. See Evidence, I. PARTICULARS OF DEMAND. See Judgment of Non Pros., 1.— Nonsuit, 10. Stay of proceedings.] — 1. After a demand made and sworn to, the Court made a rule for particulars of demand to be delivered, and to stay proceed- ings in the mean time, absolute in the first instance. Butler v. Ricliardson, iii. 0. S. 605. [See case 10, infra.] Iti debt on bond."] — 2. In debt on a bond to the limits, a rule for particulars of the breaches will be granted. Church V. Barnhart, Dra. Rep. 223. Time toplcad.] — 3. The defendant has the same lime to plead after the delivery of particulars under a judge's order, as he had when the summons was returnable. Waslihurn v. Poth- er gill, Dra. Rep. 489. Judgment of non pros.] — 4. After the defendant has obtained a rule for particulars, and the plaintiff has not delivered them, the Court will grant a rule that, unless the plaintiff shall de- liver them within a certain tima, the defendant shall be at liberty to sign judgment of non-pros. Shaverv. Car- rey, Hil. Term, 3 Vic. [See Judgment of Non Pros, 1.] Pro7nissory note.] — 5. Where a promissory note is declared on, an error in its date when given in a bill of particulars under a judge's order is immaterial. Barney v. Simpson, Hil. Term, 3 Vic. 6. A promissory note declared on need not be mentioned in a bill of par. ticulars. Street v. Cameron, Hil. Term, 2 Vic. [Sec Nonsuit, 10.] 334 PARTITION. PARTNERS ANU PARTNERSHIP. 7. Scmhle: Particulars delivered after summons, but without any order for their dulivery, do not bind. lb. In tresimss.l — 8. A defendant in trespass may obtain particulars of the plaintitT's cause of action before decla- ration. Nrdlls V. Henry, Trin. Term, 3 & 4 Vic. Evi(k?tce under hill of jmrtiadfus for tcork andlal(jr.'\ — 9. Under a bill of particulars for work and labor, the plaintiflT may give in evidence an ac- knowledgment of a specific balance due for work and labor. Dnwitiiond V. Bradley^ Dra. Rep. 251. Order with stay of procerdiiiixs — Arrest made after such order. ^ — 10. After the service of non-bailable pro- cess, a judge's order obtained by the defendant for the delivery of particu- lars, with a stay of proceedings, does not operate so as to prevent the plain- tiff from arresting the defendant on an alias writ. Wilson v. IVilsuUf iii. O. S. 2.07. PARTITION. See Deed, II. 9. Affidmnt requisite — Blnst be adverse party.] — 1. A petition for a partition under 2 Wm. IV. ch. -Sf) must be veri- fied by affidavit, and there must be an opposing party, although the suit I'e an amicable one, and one of the parties consenting to the partition has (o be dropped li)r that purpose. Rolrinsoii, Ex parte, IMich. Term, 2 Vic. Respondent tnaydem! r."] — 2. The respondent to a petition for partition under 2 Wm. IV. ch. Sb inay «lemur to the petition. Cronk et ul. v. Cronk, i. U. C. R. 471. Nbpronfthat tliepartiesempowered to partition refused to do so — 2 I Vtn. I V. ch. .35.] — 3. Where a testator directed in his will that after the death of A. his land should be divided betwpen his children by his executors : Held, that in the absence of any refusal of the executors to make the partition after the death of A., it was not a casein which the Court could direct a parti- tion to bo made, under 2 Wm. IV. ch. 35. Cronk v. Cronk, Easter Term, 5 Vic. Parties interested consenting.] — 4. The Court cannot auanl a writ olpar. tition, under 2 Wni. IV. ch. 35, where all the parties interested in the parti- tion consent to its being made. East- uvod at al., In re, i. U. C. R. 3. 5. The provisions of the statute 2 Win. IV. cli. 35, as to issuing writs for partition, do not apply to cases where the part'-" ..nsent to the par. tition. Us,^: re, i. U.C. R. 527. PAR TNE RS AND PARTNERSHIP. See Arbitration and Award, I. 6 ; III(1),2; 111(2), 9.— Arrest, I. IS. — Assumpsit, I. 9. — Auction ETC., 5. — Bills of Exchange etc., I. 2 ; IV. 2, 3 ; V. 5, 7, 34.— Ex- ecutor etc., I. 2. — Guauantee, 8. — Joint Stiick Company. — No- tice OK Trial, 12. — PLEAniN(;,X. 5 — Practice, I. 2. — Smerife, I. 10.— WiTiNESS, 5, (). Rialit ofonejxirtnrr to sign cogno- vit i n. tiir ncuir (f Ih.e fnni,.'] — 1. One partner cannot siun a cognovit in the name of tin; firm without a special au- thority, and a juilgment entered upon such cognovit will bo set aside with costs. Hohnc v. Allen et al., Tay. U. C. R. 479. [Right of one partner to execute nn arbitrii- tion bond in Ihe name of the /irni — see Aniii- TRATION AND AWARD, I. (J.] Cognovit given by one partner col- lusiccly.] — 2. Wlieit" one ol" two jiart- ners gav(> a cognovit for himself and partner, without his partner's concur- roiice, and colluded as alleged with the plaintiffs to defraud other creditors, and judgment was entered upon it, the PARTNERS AND PARTNERSHIP. PARTNERS AND PARTNERSHIP. S35 m 5'27. I. Court, upon strong evidence of collu- sion, set aside the cognovit and judg- ment entered thereon wiih costs. Joi/cc V. Murray et al., Mich. Term, 6 Vic. Admission of a balance due hij one partner to another after dissfjlution — Assumpsit.^ — 3. Wlien on a dissolu- tion of partnership one partner has admitted a balance due his co-partner, assumpsit will lie although there be no promise to pay ; and in one case, where the balance did not appear conclusive- ly, and the judge at Nisi Prius left it to the jury more unfavorably for the plain- titfthan he might have done, and there was a verdict for the defendant, a new trial was granted on payment of costs. McNicol V. McEwen, "iii. 0. S. 485. [See case 10, infra.] Action by one partner ap;a.inst another for a breach, of an agree- ment.^ — 4. An action cannot be main- tain:;d by one partner against another, on an oiler to pay a certain sum, if he were allowed to keep the books and collect the debts. Burgess v. Fun- ning, iv. O. S. 188. Note by jiartner in name of firm for private debt."] — 5. A note given by a partner for a private debt in the name of the firm, is not binding on the lirm. Beals V. Sheldon et al., Trin. Term, 5 & 6 Wm. IV. [See Pleadino, I. X] Partners not bnind by bill drawn in the name ofonc.^ — 6. One of seve- real partners cannot bind the firm by a bill drawn in his own name, althougli for partnership purposes. Goldic v. Maxwell, Hil. Term, 4 Vic. [See Bills of Exchange etc., I. 2.] Accmmnodation indmsement on note for bettejit of firm, thongh note drawn by one olonc."] — 7. A. and B., repre- senting themselves as partners, obtain- ed C.'s accommodation indorsement to a note drawn by A. alone, but stated by B. to be drawn for their joint bene- fit, and on their joint liability ; the note was discounted at a bank, and C. was subsequently obliged to pay it, A. having in the meantime absconded: Heldfthat C. could not recover against B. on the note, but that he might main- tain his action on the count for money paid. An?iis et al. v. Lcivis, Trin. Term, 6 & 7 Wm. IV. Trover by one 2>(if'tficr against another.'] — 8. One partner cannot maintain trover against another for converting the partnership property. Sinith v. Book, Trin. Term, 1 & 2 Vic. Construction of agreement — Ques- tion of partfiersJiij}.] — 9. Held, upon the construction of the agreement and facts as given in the report of this case, that the defendant, Meritt, in the course of certain transactions between the plaintiffs and defendants, must be con- sidered as a partner, and as such liable for any advances made to the defen- dants during that period. Tobin et al. v. Mcrritt et al., ii. U. C. R. 2. Admission of a balance due bif one partna- to another before dissolution — Assnnqysit.l — 10. A., one of two part- ners, makes the following entry in the partnership books: "I have this day (5th April 1841,) examined our books and find them correct, and a balance due my co-partner of 288^." No pro- mise to pay the balance is proved by B., the co-partner, and subsequently to that entry the two parties continue the imrtneiship business, and after- wards finally settle and dissolve : Held, that B. lias no right of action against his co-partner A., upon the balance stated in the entry. Allan v. Garven, iv. U. C. R. 242. Inference of jmrtnership bctiveen father and son,] — 11. Where upon the question of partnership between father and son, (defendants), the jury foiuid for the plaintiff upon the fol- lowing evidence: That the son, a young unmarried man, lived with his father, was in general occupied with his business, carrying beer to his cus- tomers, receiving money and making 336 PARTNERS AND TARTIVERSHIP. PATENT. payments for him, Arc, and had fur- nished part of the money with which his father had built his brewery : Held, that this evidence laid no ground upon which a partnership between father and son could be inferred, and that the defendants were entitled to a new trial on payment of costs. ScuUlwpe v. Bates et al., v. U. C. R. 318. Payments made for a partneiship through the agent of one partner, and aftenvards returned by him in satis- faction of the private debt of such pait- nerJ] — 12. A. and B., partners, agree to sell to C. 500 barrels of flour at so much per barrel, to be paid per 100 barrels after the delivery, and upon the production of the wharfinger's receipt. The son of A.( one of the partncrs)comes to C. with the wharfinger's receipt for 100 barrels, C. gave him a cheque for the amount due in favor of the firm, and took his receipt. As the son was leaving C.'s store, a clerk of his re- minded him that a private note of A.'s to C. of 40/. was then due and unpaid. A.'s son, with the proceeds of C.'s cheque, took up this note of 40/. B., the other partner, in consequence of this application of the money of the firm by A., refused to send C. any more flour till the 40/. was made good to him. C. then sued A. and B. and re- covered : Held, on a motion for a new trial, that the payment to A.'s son under the circumstances was such a payment to the partnership as acquitted C. upon the whole sum paid. Scmble, that if it could be shewn by B. that C. paid A.'s son upon the previous understand- ing that A.'s private debt was to be retained out of the cheque given by the firm, the son's receipt would not have discharged C. from the payment of the 40/. to the firm. BrunskUl v. Chu- masero et al., v. U. C. R. 474. Failure of consideration — Rcscision ofcontrojct — Money had and receiv- ed^ — 13. Held, that under all the cir- cumstances of this case, (given in the report), the plaintiff could not bring an action for money had and received, to recover back the money mentioned in the delendant's receipt, mariied B. (Robinson, C. J., dissentiente). Kay V. Cameron, v. U. C. R. 530. What constitutes a partnership inter se.'\ — 14. Held, that the agree- ment (given in the report of this case) did not crente between the parties a partnership inter su, and that conse- quently the one could sue the other on such agreement at common law, without resorting to equity, Havley V. Dixon et al., vii. U. C. R. 218. Debt due by A. and B. — Creditor takes mortgage from A., B. ?io longer liable.^ — 15. Whore there is a simple contract debt due by A. and B., part- ners, and the plaintilf takes a mortgage from A., giving time, the simple con- tract debt is thereby extinguished as regards B.,and il follows that B. is no longer liable to be sued on the implied assumpsit, as having been a joint con- tractor with A. Lfxmiis et al. v. Bal- lard ct ah, vii. U. C. R. 366. 16.] — Qu(C.re: Where there are partners employed in making engines, iVc, and the plaintifl' makes an express contract with one of the partners "for an engine, can he, notwithstanding such express contract with one only of the partners, sue them all ? lb. PATENT. Pleading — Effect of dc injuria, tvhn'e right denied.^ — 1. Where in case for the infringement of a patent the defendant pleaded that the inven- tion for which the patent had been obtained was not a new invention, but had been publicly used and vended in a foreign country, the plaintiff replied de injuria: Held, that the plea was a good answer to the declaration, but that the replication was bad, as tlie plea was in denial of the right, and not in exc\ise for its violation. Vantwrman v. Leonard, ii. U. C. R. 72. jceived, to 'utioncd in larked B. tc). jfiCay iO. artnership the agree- this case) he parties hat conse- the other imon law, Hauiey \. 218. —Creditor . 710 longer is a simple d B,, part- a mortgage imple con- giiished as at B. is no the implied I joint con- al. V. Bai- rn. there are ng engines, an express )artners"for ithstanding one only of lb. Ic injuria. Where in »f a patent the inven- i had been rention, but 1 vended in itiff replied plea was a ion, but that lA tlie plea , and not in nnorman v. PAYMENT. Notice of objectums to patentee''s right — Particularity.'] — 2. In an ac- tion by the patentee against the defen- dant for an infringement of his patent, npon an order being made by a judge in chambers that the defendant should deliver to the plaintift" particulars of any objections on which he intended to rely in support of his plea, that plea being that the invention was not new but had been wholly and in part used, practised and vended in Great Britain before the grant of the patent: Held, that a notice delivered by the defen- dant to the plaintifl', that he intended to object at the trial to the patent alto- gether, as being granted for what was not a new invention, was sutiiciently particular, and a compliance with the order. Mills v. Scott, v. U. C. R. 360. Pleadings — Meaning of the tvord " improvement."] — 3. The plaintitT complained of the defendant having infringed a patent which he (the plain- tiff) had obtained for a new and useful mode of generating and distributing heated air in dwelling houses. — Plea, that the plaintiff was not the true and first inventor of the said improvement in the said declaration mentioned, in manner &c. — Demurrerto plea, as bad, in traversing something not alleged in the declaration: Held, plea good. Miils v. Scott, vi. U. C. R. 205. PAYMENT. 837 PATENT (GRANTING LAND). See Crown Grant. PAYMENT. See Practice, II. 45. — Principal AND Agent, 6, 9. — Set-off, 1 , — Witness, 5, 6. Tim distinct accounts — Appropria,- tion of payments.] — 1. Where a debtor is indebted upon two accounts, 2 V and makes a payment without direct- ing to which account it is to he placed, the creditor has his election to place it to which he pleases, unless there is a specific direction for its application, or circumstances in the case tantamount to one. Hagerman v. Smith, Tay. U. C. H. 154.. [See an exception to this rule — Cummingt V. Glasiup et al., case 4, infni.j Debt on bond — Pleas of solvit ad diem, and solvit ]mst diem, — Evidence thereunder.] — 2. Quaere: In an action of debt on bond, where it appeared that there had been extensive dealings between the parties independendy of the bond, and that the defendant had sent to the plaintiflfs a large quantity of flour which they promised to account for when the price for which it was sold was ascertained, can the defen- dant under the pleas of solvit ad diem and solvit post diem, give in evidence the value of this flour as a payment on the bond ? Maitlar.det al, v. Secord, Dra. Rep. 469. Party pleading payment of a lar- ger sum, may give evidence of a smaller one.] — 3. Where payment is pleaded under the rule of Court which directs that all payments shall be spe- cially pleaded, the party pleading pay- ment of a larger sum is not thereby prevented from giving evidence of pay- ment of a smaller sum in reduction of damages, although the issue on the plea must be found against him. Gooder- ham v. Chalmers et al., i. U. C. R. 172. Appropriation, when no directions given h-y debtor.] — 4. Although it is the general rule in the appropriation of payments, where there are two dis- tinct claims to which they can be ap- plied, that the creditor can at any time make appropriation when the debtor has not directed the money to be spe- cifically applied, yet under special cir- cumstances, the law will sometimes make the appropriation and take the option out of the hands of the creditor- S38 PAYMBITT. PAYMENT INTO COURT. Cummings v. Glassupetal., i. U. C. R. 364. [Applicntinn of payments on account of a loan— See Sir Jumes McGregor tt ai v. Gau- lin et al., case 9 infra.] One sum to several counts.^ — f). Where a plea of payment of a certain sum is pleaded to two counts, vvitliout alleging how much of the said sum is to be paid on each count: //c/rf, good on demurrer. Brown et al, v. Moss etal.,\\\. U. C. R. Jf)8. In satisfaction of a bond for the performance of something collateral.'] — 6. A plea of payment of a sum of money in discharge and satisfaction of a bond conditioned to do a collateral thing is bad, unless it aver that the payment was made after the time for performance was past, and after a breach had been incurred. A loan of money cannot be pleaded in satisfaction and discharge of a bond and condition. Prindle v. McCatin et al., iv. U. C. R. 228. Payment, a condition precedent — Action— Averment of readiness ^-c.] — 7. Where a payment is to be a con- dition precedent, or a concurrent act, and is to be made in a certain manner, the plaintilT must aver readiness to pay in the jiiecise manner stipulated. Tantier v. D''Everadoet al., iii. U. C. R. 154<. Action on a note, indorsee against payee — Payment by m^ik';r by credits in an accoutit.] — 8. Where A., the indorser of a note sued B. the payee, and it was proved by C. the maker, that the note was made an item in the current account between A. and C. (the maker) ; that it was long before charged to the maker as a debt due by him, and that when it was so charged the balance was in the maker's favor: Held, that upon such evidence the note must be taken to have been paid by the maker. Held also, that the note must be considered as paid by the maker as soon as subsequent credits are admitted by A. sufficient to cover the note, though at the time of the note being charged, the balance was not in C.'s, (the maker's) favor. Mc- Gillivray v. Reefer, iv. U. C. R. 342. I Ajrprnpriation uhcn wade on ac- I count of a 1(mh.'] — 9. Whero the de- I fendaiit is making payments to the plaintiir on account of a loan, the plaintiir may insist, in the absence of : any agreement to the contrary, that the payments be applied in the first place to keep down the interest. Sir James McGregor ct al. v. Gaulin et al., iv. U. C. R. 378. [See the proper method of calculating in- terest— Intkbest, 2.] Good notes.] — 10. Semble: That payment in " good notes" does not necessarily mean " good negotiaMe notes." McArthur v. Winslow, vi. U. C. R. 144. PAYMENT INTO COURT. Receipt on plea not necessary.'] — 1. According to the practice of this Court, where a defendant pleads payment of money into Court, it is not necessary to obtain the master's receipt for the money in the margin of the plea. Miles V. Harwood, i. U. C. R. 515. Abatement of suit by death of de- fendant after payment of money by j himinto Court — Proceedings against ! his executors.] — 2. Where the defen- I dant, in an action of assumpsit, paid money into Court and died, and the action abated, and the plaintiff after- wards sued his executors for the same cause of action and took the money in the former suit out of Court, but proved his debt to no larger an amount: Held, that he could not retain the costs of the first action and recover against the executors for the difference between the sum remaining and that originally paid in. Carey v. Choate et ai., Mich. Term, 6 Vic. RT. me of the lance was ivor. Mc- U. C. R. idc on ac- uni the de- nts to the loan, the absence of Urary, that in the first erest. Sir Gaulin et ilculating in- nhle: That " does not fiegotialle 'inslow, vi. OURT. 'ssary.'\ — 1. f this Court, payment of neces!-ary to ipt for the f the plea. U. C. R. ieath of de- f money by ngs against i the tlefen- unipsit, paid ied, and the aintifl" after- fur the same the money " Court, but an amount: : retain the ind recover le difference ng and that jy V. Choate PENALTY. PENALTY. dSO PEDIGREE (EVIDENCE OF). See Evidence, III. 2. — Heir, 2. PENAL ACTION. See Arrest of Judgment, 3. — Ga- ming, 6.-Maintenance, (Statute of), passim. — Pleading, II. l-k Leave of Court nccexsary before compromise. 1 — 1. The 18 Eliz. cli. 5, proliibits the compromise of a qui tam action, without the leave of the Court. Sleeker v. Meyers, vi. U. C. R. 134. [See Assumpsit, I. 15.] Statute 32 Hen. Vlll. — Leave granlcd to compromised — 2. Leave was given to compromise a jn," I action on the statute 32 Hon. VIII. rh. 8, for buying pretended titles, on paying the Crown's share into Court. Gray qui tam v. Dcttrick, Hil. Term, 6 Wm. IV. Nonsuit.'\ — 3. In a qui tam acti(m the piaintilV may be nonsuited. Sluart qui tam v. Sullen, Easier Term, 4 Vic. PENAL STATUTE. See Gaming. — Maintenance (Sta- tute of). — Usury. Const7tiction.^ — A penal statute is to be construed according to its spirit and the rules of natural justice, n«t ac- cording to its very letter. Rex v. Mackintosh, II. O. S. 497. PENALTY. Money reserved as liquidated dama- ges, rjnsidcred a penalty. 1 — 1 . Where the plaintiff, in an action of debt on an agreement, lays his breach in such a Kanner as to make it uncertain wheth- er he is not claiming damages in the shape of liquidated damages, by reason of a failure in some very minute par- ticular of the agreement — as if, for in- stance, the breach complained of was that the defendant did not by the 1st of September clear off all the standing timber, nor did he fence the said land — the Court will not look upon the sum mentioned in the agn ement as any- thing but a penalty, though the parties have in terms agreed tlint the sum named should be regarded as liquidated damages, and not as a penalty. AinS' lie V. Chapman, v. U. C. R. 313. Such motiics being only a penalty, plaintiff not alloucd nwre than actu- al damages.] — 2. Where a certain sum is claimed by way of liquidated damages in an action of debt for the non-performance of an agreement, and the Court are of opinion that the sum mentioned is in the nature of a I penalty anu not of liquidated damat;ea: Held, that the statute S &; 9 Wm.lll. [ch. 11, will, when such an opinion is '■ pronounced by the Court, restrict the |)laintiff from recovering more damages than he has sustained by reason of ihe I breaches ; and that a demurrer there- fore to the declaration would be bad. lb. Monies reserved as liquidated dama- ges, only a penalty.] — 3. Held, upon the following clause at the end of an agreement, " and for the perlbrniance of this agreement each party binds himself to the other in the penalty i)f 50/. liquidated damages, and not as a I penally, which 50/. shall be forfeited by him who fails to perform this agree- ment, and shall be recovered the one (f the other in an netion of debtafter one month from this date, on defauit made by either parly," that the 50/. was a penalty and not liquidated damages, and that the plaintiff was therefore right in bringing covenant on the agree- ment, and not debt. Henderson v. Nichols, v. U. C. R. 398. [The cases in which, although the words " liquidated dama<;es" he used and still they are to be taken as a penalty, are ihose cases where the doing or omiltiiis; to do several things of difTerent degrees ojf importance is sec'ui't'd by tl e sum niimed and notwithstand- ing the language used it is plain from the whole instrument that the real intention was different— Price v. Green, xvi. M. & W, 354.] •noRRS" 340 PHVaiCIAN. PLBADIMU. 4>. Where a party bindR himself in an agreement to pay the plaintifl* 20/., if A. does not fulfil all the covenants and conditions of the agreement, the 251. must be looked on as a penalty, and not as liquidated damages giving the plaintiff an action as for an abso- lute debt. McLean v. Tindey, vii. U. C. R. 40. Averments in declaration for liqui- dated damages.l — 5. Qucere: Where a party, upon an alleged bruaiii of an agreement, seeks to recover compen- sation not in the nature of general damages to be left to the discretion of the jury, but in the shape of particular damages specially contra«!ted for by the agreement itself, should he not aver in his declaration notice to the defen- dant before action t)roughtof such par- ticular damages and the amount? Hen- derson V. Nichols, V. U. C. R. 398. PEREMPTORY UNDERTAKING. See Judgment as in case of Non- suit, I. 3 ; II. PERJURY. See Bailiff, 3. — Libel and Slan- der, II. 7; III(1),3. PETTY TRESPASS ACTS. See Appeal,!. — Assault and Bat- tery, 5, 6, 9. — Costs, VII. 7. — General issue, 4. — Notice of Action, 4, 8. Semble: That a conviction under 4 Wm. IV. ch. 4 for an act against the public peace does not deprive the party injured of his right to a civil remedy. Delong V. McDonell, Easter Term, 2 Vic. PHYSICIAN. See Libel and Slander, II. S. PLACITA. See Record (Nisi Prius), 7. PLEADING. I. Argumentativeness. II. Certainty and Particular- ity. III. Commencement AND Conclu- sion. IV. Confession and Avoidance. V. Departure. VI. Duplicity. VII. Inconsistency. VIII. Materiality. IX. Admissions. X. Joinder of Counts. XI. Pleading generally. XII. Pleading in particular Ca- ses. I. Argumentativeness. See Arbitration and Award, VI (2), 13. — Bailment, 3. — Case (Action on the), 4. — False Im- prisonment, 3. — Mesne Profits, 4. — Pleading, VI. 1,2, 4. — St>rr- iff, V. 14. jiistifica- iibel charginp ng a " convictea Libel — Argio" tion.'\ — 1. In ca the plaintiff will felon," a plea thai i memor al to the lieutenant governor lit; had confessed that he had been guilty of bigamy, is bad, as an argumentative and insuffi- cient way of pleading a justification. Longworth v. Hyndman, i. U. C. R. 17. BUI of exchange — Plea denying title thereto — Argumentative replica- tion.l — 2. In assumpsit by the indor- see against the indorser of a bill of ex- change protested for non-acceptance, the defendant pleaded that before pre- sentment for acceptance the plaintiff had indorsed it to A., who from thence hitherto had been and still is the holder us), 7. ftTICULAR- dConclu- voidance. Y. ;ULAR Ca- NE8S. .WARD, VI 3.— Case False Im- E Profits, 4. — SnpR- jiistifica- el charging ' convicteu 01 al to the confessed bigamy, is nd insuffi- istification. . U. C. R. ! denying ve replicU' the indor- bill of ex- Bceptance, )efore pre- e plaintiflT om thence the holder VLEAOINU. thereof, and the plaintiff replied, ad- 1 mitting the indorsement to A., but' averred that the plaintiff had afterwards been obliged to pay the amount to A., and had taken up the bill from him, and at the time of the commencement of the suit was the true holder: the Court held the replication bad as an argumentative denial of the defendant's plea. Watkins v. Nicolls, i. U. C. R. 473. Action on a note, payee against makers — Argumentative plea by one maker. "[ — 3. To an action on a note by the payee aguinst three makers, one of the defendants pleaded that at the time of the making of the said note, he, the said defendant, and the other two defendants were co-partners in the business, and that the other two defen- dants being indebted to the paintiff before the partnership, made the note declared upon in the name of all the three defendants for the payment of the said debt, without the assent of him, the defendant, of which the plaintiff had notice Sec, concluding with a veri- fication : Held, on demurrer to thi.« plea, plea bad, as amounting to a de- nial of the making of the note, and therefore argumentative. Semble: that if the plea had concluded with a traverse of the making of the note by the defendant, it might have been supported. Gourlay v. Ounn et al., V. U. C. R. 566. Action by school teacher for xorong- Jvl dismissal — Argumentative deni- al.'\ — 4. In an action for wrongfully dismissing the plaintiff, a school teacher, a plea averring the dismissal of the plaintiff by a third party authorized by law to do so is bad, being an argu- mentative denial of the wrong com- plained of. Campbell v. Black et al., iv. U. C. R. 488. [Also see div. VI. 1, infra.] Action on a note — Argumentative denial of plaintiffs title thereto.} — 5. The plaintiff, suing as the holder of « note payable to B. or bearer, avers PLKADINO. 341 "I that B., the payee of the note, trans- ferred and delivered it to the plaintiff. The defendant pleads, not traversing the fact that B. did assign the note to the plaintiff, but denying it by relatmg the transaction in a wholly different manner, averring that the plaintiff took the note by delivery from other parties having no connection or interest with B. : Held, plea bad on demurrer, as being an argumentatiue denial that B. assigned the note to the plaintiff. Smith V. Oates, iv. U. C. R. 185. 6. Where it is pleaded that both A. (the maker of the note) and the plain- tiffs knew, at the time the note was transferred by A. (the maker) to the plaintiffs, that B. the indorser (who had indorsed the note before it was .signed by the maker), had only agreed and intended to indorse a note that was made by C, and not one made by A. : Held, that such a plea denied in effect the indorsement to the plaintiffs, and was therefore bad, as being an argu- mentative plea. (Sullivan, J., dissen- tienfo). Rossin et al. v. McCarty et al., vii. U. C. R. 100. Action for lands bargained and sold — Plea of the Statute of Frauds.} — 7. In an action for lands bargained and sold, a plea of the Statute of Frauds is bad upon special demurrer, as amounting to the general issue. Bird- sail V. Darling, ii. U. C. R. 401. Plea of no contract as required by the Statute of Frauds.} — 8. A plea that there was no written contract as required by the Statute of Frauds, is bad, as amounting to a denial of the contract. Dempseyetal.v. Winstan- ley, vi. U. C. R. 409. [Ace. Leafy. Tuton,x. M. & W. 359, and J^mky V. iPGregor, vi. M. & G. 942. Plea, disclosing a negative preg- nant^ — 9. Indorsees against the indor. sers of a note. The plaintiffs declare on two counts — first, on the note : se- condly on an account stated. The de- fendants plead, "that they did not 342 PLEAUiNU. PLK%.OINO. indorse the note in the said first count in the declaration mentioned," in man. ner and form, &,c. On demurrer to the plea, it was held bad, because in its mode of traversing the indorsement A-isumpsit — Plec" amounting to general issue.'] — 13. An agreement made to tow the plaintiff's schooner when requested, without stating such asjreemenl to be limited in its duration, I it contains a negative pregnant, witii | and breacii assigned in not towing in the the admission that one or two of three year !SW. — Plea, that the agreement defendants did indorse. Commercial was made to be in force for the year Bank v. Reynolds et al., iii. U. C. ' 184'2,and no longer, and that the de- ft. 360. j ft'hdant towed at all times in that year Action, fm atto^ney for fees— Pica, > '']"''] requested.— Whether such plea a nesative presna>,tA—\0. T.. an '^^ '^"i'^'^ amounting to the general issi^. menced before the expiration of one month after the delivery of any bi'l, &c., was held bad on special demur- rer, as containing a negative pregnant. Denison v. Dnnclhj, ii. U. C. R. 394'. Action on. the case — Plea amount- action brought by an 'attorney for Im'^^^'f''"'^^ ^- ^'"''^ ^««'^-' •' ^' ^ fees, a plea that the action was com- j " ' Action for breach, of an agreement — Plea, amounting to general issue.] — 14-. The |)laintill'decIarod settrngout an agreement ilated on 27th Novem- ber, on the part of the defendant, that he would, Oh the ne.\t day, tow his tng to general issi/r.]— 11. The de-i(''ie plaintilV's) sow from the Bay of claration complained that the def?n- Q"'""i'> "•-•n. Ado!plmstown. to Kings- dant, contriving and intendmc: to ip,ure! '•»"» withoi.t any qualification or resor- him, caused his (the plaintitl's) horse ^'a''"" whatevt-r. The defendant, in to be driven upon certain premises not •''•'^ P't^^, admitted the agreement as set the plaintiff's and without his know- : o"t by the i)Iaintitr, but afterwards ledge, by means whereof the plaintiff's ' averred that tiie agiceinent was not so precise and absolute in effect, and then nllcged certain facts to qualify it — to this the plaintiff demurred, as amount- horse was then distrained for r? ' due in respect of the premises, ai i '.ihich ten', the defendant then knew was in arrea. ; and that his horse being dis- ! i"^' t.) the general issue— judgment was trained was sold, and so became lost ! g'ven for the demurrer. Borland v. to the plaintiff.— Plea, that the defen- 1 Pontcr, vii. U. C. R. 23. dant received the horse from the plain- tiff's bailee, and returned him to liim, ^'f !"* note-Pea failure of which reluming the horse was ,\,,.\<^"nsideralMm tHlc o land for winch, same grievance of which the plaintiff/""'^ "''''"' ^'"'" /'"^^•J-'-"'- To an complained: Held, on demurrer „,! "/'t'O" on a promissory note, the defen- nlea'plea bad, as amounting to ,i,e ld:"'l Pl^n^y^i f'at hen.adc the note on general issue of not guiltv! Mc- nccount_ol payment ol a piece of land Anany v. Meyers, v. U. C. R. 587. Trespass quarc clansnni fregit — Plea anumnting to general issue] which the plaintiff then agreed to sell and convey to him, and to which the piaintilVthen professed to have a title; whereas, the plaintill' had not then, or 12. In trespass quare clausum fregit i at any lime afterwards, any right in or et de bonis asportatis, a plea justifying j to the said land, ami could not, and did an entry and seizure under an attach- 1 not convey the same to tiie defendant ment against the real and personal | pursuant to the agreement, and that estate of a stranger is bad, as amount- there never was aiiv consideration for ing to the general issue. Green Hamilton, Ea.^ter Term, 3 Vic. making the said note, except as afore- said : Held, upon demurrer to plea, ; PLEADING. plea bad. Blanchfield v. Birdsall, vii. U. C. R. 14-1. Trrs])ass quare clausiim f regit — Argumentative flea of not jmssesscd.^ — 16. To ail action of trespass tor breaking down and entering the plaiii- tifl's close, and pulling down llie fen- ces Aec, the defendant jjleadiHl that lie was lawfully possessed of a close next to the plaintilVs close described in the plaintiff's declaration, which close of the defendant the plaintiff claiiiied as part of his close mentioned in the de- claration, and so claiming it as his, wrongfully put up a fence there, and that the defendant took up the fence posts wrongfully incumbering his close, and removed them to a convenient dis- PLKADINO. 343 II. Certainty and Particularity. See Administration Bond, 2, 3, 4. Bills of Exchange etc., IV. 1, 2; V. f), 6,30,31,32,34,35; VI. 9.— Bond, II. 6, 7,18,21,23 Carrier, 19. — Common Schools, 4, 6. --Executor etc.. III. 13. — False Return, f>, G. — Foreign Judgment, 1 !< — Guarantee, 6. — Indemnity Lond, 8, 9. — Limita- tions (Statute of), IV. 6. — Maintenance (Statute of), ly. Pleading, III. 7. — Sheriff, III. 6; V. b, 7, 14.— Trespass, II. 5, 12, 16, 17, 24.— Trover, II. 1. Debt on bond — Plea that a convey- ance iras not made according to agree- ment, uithout stating uliat the asree- tance, ashelawfullv n\iaht&c.: Held,t ^ , , ...r , -; on demurrer to thi; plea, plea bad, as I ^«^"? /ms.]-l. \V here to a declara beins an areumentative plea of not i^!"" '!' ^^^ 'V"P"" '^"'"^ the plea stated possessed. Rees v. Dec/., vii. U. C i ^'""^ "^^ P'"'"*"^^ '^''^ ""^ "^'^''^ » ^«"- R. 496. Assumpsit — Argu mentative and immaterial pleas.^ — 17. Where A. in consideration of B.'s advancing money to C, guaranteed that B.'s ac- ceptance of C.'f, drafts should be covered by consigi.-ieiits of flour, to- gether with commir e indorsement to A. ; and on demurivir to the replica- tion it was held bad, in not denying that A. was the holder of the note at the time of bringing the action. The Bank of British North America v. Ainley, vii. U. C. R. 33. Covenant for breach, of an agree- ment — Insufficiency of breaches as- signed.'] — 10. The plaintiff declares on a covenant by the defendant to transfer him "artain land, to which the defendant w:j entitled as the son of an U. E. Loyalist, provided the plaintiff, his heirs or assigns should locate the land, perform settlement duties and procure the patent thereof, at his or their own costs, the defendant in his covenant agreeing to furnish the plain- tiff, his heirs or assigns, with full pow- er and authority so to do, and then assigns as a breach that from the time of the agreement to the commence- ment of the action, he (the plaintiff) 2 X PliEADINO. 345 has been ready and xvilling to locate, iVc,., of which the defendant had due notice, cmd though often requested, refused to furnish the plaintiff with power and authority so to do. The breach is bad, in not averring a de- mand of authority to locate, perform settlement duties, Arc, with time and place. Deilor v. Keogh, i. U.C.R. 226. TrcsjMSs for seizing and selling cattle — Plea, damage feazant — Re- plication, defect of fences.] — 11. Where in trespass for seizing cattle and causing them to he sold the defendant pleailed that the cattle were taken damage feazant, and he proceeded to justily the sale iimler 1 Vic. ch. 21, and the plaintitV replied that the defen. dant's fences were defective, and that the cattle escaped from the highway into the close : Held, on demurrer to the replication, that it was bad, for not slating that the eattie escaped through thedrfeetin. tliefcnres, and that thcplea was gddd, as it shewed a sufficient jus- tiiiration of the seizure, the sale being merely matter of aireravation. Sted- man v, Waslcy, i. U. C. R. 464'. Trespass quare clausian fregit — Arer)nent of time.] — 12. Where the plaintitr declared in trespass quare eiausum fregit, laying the entry on the close under a videlicet on lOth April ISii, and on divers other days and times, and averred that during the time aforesaid, to wit, on the 10th April 1844, the defendant took and carried away dive|^ goods and chattels, (not averring them to belong to the plain- tiff), and the defendant demurred spe- cially because the time of taking the goods was not laid with sufficient cer- tainty — the Court held the declaration good and refused to entertain an objec- tion on general demurrer, that it did not appear that the goods which were complained >f as the subject of the sei- zure were the goods of the plaintiff. O'Brien v. Harahy, i. U. C. R. 475. [AlUgatinni of time— lee cbmi 14, 28, 29 and 38, infra.] 946 PLKAUrNU. PLEADING. Action on note against indorser — ] Plea of time to maker. 1 — 13. A plea ] <)f time given to tlie maker of a note,' in an action against the iniIors;er,i3 bad,j unless it expressly shew that when the | time was given the plaintifl" was the | holder of the note. Commercial Banh . V. Johnston, ii. U. C. R. 1~(). ! Failure in agreement to build a\ house — Insuflicient averment of time'< and (/reach.] — 14'. The declaration i stilted that heretofore, to wit, on the ' •till of August 1844', the defendant ; agreed with the plaintilT to erect and ! build a certain house, and have it in a I tenuntable condition by the middle of i November then next ensuing, andal-i legod for breach that the house was i not erected, nor built, nor in a tenant- ! able condition by the middle of the said ' month of November 1844 : Held, bad i on general demurrer, for not shewing i that November 1844 was the Novem- ber next ensuing the making of the agreement. Ekins v. Evans, ii. U. C. R. 144. AssH7npsit for non-payment of rent — Insujficicnt plea of eviction,] — 15. Where in assumpsit for non-payment of rent according to agreement the de- fendant pleaded an eviction by a stranger, who he averred entered un- der a lawful claim derived through or under the plaintilf, the plea was held bad on general demurrer, because it did not shew that the claim might not have been under a title derived from the tenant himself. McNab v. BIc- Doncll, ii. U. C. R. 169. • Assumpsit for non-performance of an agreement — Insujficicnt breaches.] — lb. Where the plaintiff declared in assumpsit on a special agreement for leasing land for ten years, and the agreement, it appeared from the decla- ration, was to be reduced into writing to make it effectual between the par- ties, and the plaintiff assigned as a breach that the defendant did not exe- cute the agreement although requested, the declaration was held bad on gene- ral demurrer, because it did not appear that the agreement was reduced to wri. ting. Lee v. Purdi/, ii. U. C. R. 193. Action on note — Impeachment of consideration by non-delivery of cer- tain goods — Omission of request.] — 17. VVhere in assumpsit by the indor- see against the maker of a promissory note the defendant pleaded that the note was made and delivered to the plaintiff in payment of 200 hats and caps, to be delivered by the plaintiff to the defendant, and averred that the hats and caps remained undelivered, but did not a\cr that any request had been made for their delivery — the plea was held bad on demurrer. Anderson V. Jennings, ii. U. C. R. 422. Action on note by indorsee — Omis- sion of allegation of lime to indorse- mcnt.]-lS. Where in assumpsit against the maker and indorsers of a promis- sory note, under the provincial statute 3 Vic. ch, 8, the plaintiff averred that the payee duly indorsed the note to the plaintiff, but there was no allega- tion of time to the indorsement, nor was the word " afterwards" used as given in 'he form in the statute — the declaration was held insufficient. Grant V. Eijre et al., ii. U. C. R. 426. [A count for goods sold and delivered, sta- tinj? that the defendant was, on, &c., indebted to the (ilaintitf in, &c., for jjoods sold by the plaintitf to the defendant at his request, without any Anther allpnatlon of time, was held good. Lane V. Thdu-eU, i. M. & W. 1-40.] Asstimpsit — Plea of payment into Court, and a set-ojf- — Defective repli- cation of damages vltra, ij-c.] — 19. Where in assumpsit the defendants pleaded payment of money into Court as to part, and a set-off as to the resi- due in the usual form, and the plaintiff replied to the first plea that the de- fendants were inilebted in a greater amount than the money paid, and to the other plea that the plaintiff was not indebted in manner and form, omitting the words " nor is," both re- plications were held bad on general demtirrer. Small v. Strachan et al., ii. U. C. Ii. *34. PLEADING. PLEADING. 347 not appear cod to wri- C.R.193. rftnent of 'nj of ccr- equest.\— the indur- promissory that the red to the liats and plaintiflf to I that the idelivered, equest had — the plea Anderson 22. cc — Omis- to indorse- psit against a promis- cial statute verred that ic note to 5 no allcga- [?ment, nor i" used as tatute — the ent. Grant 426. elivered, sta- Stc, indebted s sold by the |uest, without l not performed the contract, and in what particular it had not been performed. Jones v. Hamilton, iii. U. C. R. 170. Action on a, note, indorsee v. in- dorser — Plea of payment by maker — Allegation of timc.l — 29. Indorsee against indorser of a promissory note. The defendant pleads that before and at the time when the note became due and at the time of the commencement of the suit, the plaintiffs, as bankers and agents, had in their hands diven sums of money of the maker of the note amounting to 500/., and were then indebted to the maker in that amount, and ihat the maker then di- rected the plaintiffs to retain to their own use the amount of the said note, out of the said nonies, which exceed- ed the amount of the said note, &c. — Demurrer to plea : Held, plea bad, in not averring the particular time when the direction was given. Bank of Upper Canada v. Leiois, iii. U. C. R. 325. Action on a note — Want of excuse for omission of party liable — Present- ment — Notice^ — 30. Indorsees sue the defendants separately as payees and indorsers of a promissory note. The declaration avers a joint indorse- ment by the defendants, a due pre. sentment and notice, and the liabilities of the defendants. — Demurrer to de- claration — first, because presentment at a particular place is not averred ; secondly, because a joint liability is shewn on the face of the declaration, and no excuse alleged for omitting the party jointly liable ; thirdly, because due notice is not alleged or a special averment of notice with time, &c. : Held, declaration good upon the first and second grounds, but bad on the third. Commercial Bank v. Camer- on, and Commcrdal Bank v. Culver^ iiii. U. C. R. 363. Action for assault — Justification under a bailable znit — Insufficient replication of arrest being set ««p v. Murdojf, V. U. C. R. 565. Conveyance of land — Executed and executory considerations — Con- dition precedent to recovery of pur. cliase money.'\ — 40. The plaintiiV sta- ted in his declaration that in conside- ration that the plaintiff, at the request of the defendant, would (as by the said agreement the plaintiff in fact did,) sell to the defendant certain pre- mises, he, the defendant, undertook that he would pay the plaintiff for the said premises certain sums of money in good notes, and at the times &c. (as therein alleged.) — Breach, that though the plaintiff was ready to ac- cept the notes, and had performed all things to be by him performed, the de- fendant had altogether failed in his agreement &:c. Held, upon demur- rer to declaration, declaration bad, in not averring in precise terms that the ])laintil1' had conveyed the premises &'c. to the defendant, or was ready and willing to convey. (Maraulay, J. dis. scntiente.) McArthur v. Winslmo, vi. U. C. R. 14.4.. Trespass — Uncertain plea as to time of tresjiass.^ — 41. Where to a decla- ration in trespass charging trespasses committed on divers iiays ice, the plea answered trespasses committed at the time when !cc : Held, plea bad on special demurrer. Rccs v. Dick, vii. U. C. R. 496. Declaration setting out the consi- deration — Plea that there u-as not any consideration.] — 42. Where the plaintiff sets out the consideration on which the defendant's promise was made, a plea by the defendant " that there was not at any time any consi- deration for making the promise," is bad. Bradford ct al. v. 0'Brieti,\\. U. C. R. 417. Declaration — Uncertainty in state- mcnt ofjmrt of the consideration.'\ — 43. An uncertainty in the statement of a part of the consideration for the defendant's promise with respect only to a part of the plaintiffs' demand does not make the declaration bad on gene- ral demurrer. //;. Assum})sit — Insufficient statement of performance of condition prece- dent to promise.^ — 44. Where the de- claration lays a promise to have been made in consideration that the plaintiff should forbear to prosecute a qu\ tam action, and yet does not aver that the plaintiff did forbear, the declaration is bad in substance. Hart v. Meyers^ vii. U. C. R. 416. 3 4 PKCADINU. PLKADIMO. S5I lintiff for the IS of money c times &c. ireacli, that ready to ac- icrformed all rmed, the de- Ihiled in his ipon dcmur- Ltion bad, in ?rms that the he premises as ready and aiilay,J. dis. f. Window, lea as to time to a decla- ig trespasses fcc, the plea mitted at the plea bad on V. Dick, vii. nt the const- rre teas not . Where the sidcration on promise was cndant " that ! a?ti/ consi- promise," is O^Bncn,v\. inty in state- (lcrationJ\-^ he statement ition for the respect only demand does bad on gene- nt statement 'ition prcce- V^here the de- to have been It the plaintiff ite a (jui tam aver that the declaration is ■t V. Meyers, III. Commencement and Conclu- sion. See Arbitration and Award, VI (2), ;').— Bail, II. +. — Exkcltor KTC, III. 10. — Limitations (Sta- tute ok), IV. 1.— Pleading, XI. 3, infra. No ca. sa. — Conclusion.'] — 1. A plea of no ca. sa. may conclude to the country. JffiH v. Rattan, iMich. Tenn,"2 Vic. LPItu of " no bif!" in an action l)y attor- nics— See case !t. iiifri.] Infonmd concJusitm of declaration on bond, for non-jterformance of an award.']— 'l. Where the plaintiff ile- clared in debt for 1000/. and averred a reference to arbitration between the defendant and himself by bonds in a penalty of 1000/. each, and set out the award thereon, assigning breaches for non-performance, and concluding, " whereby an action had accrued to the plaintilT to recover the sum of 1000/. above demanded," the declaration was held bad on demurrer, as an informal declaration on the bond of submission. Simpson v. Mode, Easter Term, 7 Vic. Special traverses generally — Con- clusion.] — 3. A special traverse, since the rules of f) Vic, though i)leaded in an action in which the declaration had been filed at a time when it would not have been affected by their opera- tion, must conclude to the coimtry, and not with a verification. Strathy v. Crooks, I. \].C. R.44. Commencement and conclusion of replications.] — 4. It is not necessary that a replication should commence with a precludi non, or conclude with a prayer of judgment. Hamilton v. Davis ctal.,\.'[J. C. R. 176. Trespass — Plea of property — Con- clusion.] — 5. In trespass for taking goods, a plea that at the time &c. the goods were the goods of the defendant, and not of the plaintiff, is good, but it ought to conclude to the country and not with a verification. Cargill v. Flint, i. U. C. R. 49. Plea professing to answer too muck in the commencement.] — 6. Where in assumpsit against the indorser of a promissory note, and on an account stated, the defendant pleaded to the first count that the note in the first count mentioned was not duly pre. sented, and then pleaded a special plea, applicable only to the first count, but commencing <' and for a further plea in this behalf," and the plaintifT demurred specially, because the plea in its commencement professed to an- swer the whole declaration, but was an answer only to the first count — the Court held the objection good and gave judgment against the plea. Wood et al. V. Rogers, ii. U. C. R. 399. Assumpsit — Uncertain pleas — /«- formal conclusions,] — 7. The plain- titVs tkvlare in assumpsit for not paying a biJI of exchange which the defendant agreed lo accept, payable at Montreal on the 18th of July IS-iS, in consi. deration of the plaintiffs' delivering to t'le defendant at St. Catharines 10,000 bushels of good clean merchantable fall wheat. The declaration avers the delivery of the said wheat to the de- fendant at St. Catharines, and that the defendant accepted and received the same. The defendant pleads, second- ly, that the plaintiff's did not deliver the saiil 10,000 busliels of tvheat in the first count mentioned, to the defendant, and thirdly, that the said 10,000 bush- els of wheat averred to have been de- livered by the plaintitfs to the defen- dant was not, nor is good clean mer- chantable fall wheat, concluding with a verification — Demurrer to the second plea, because it leaves it uncertain whether the defendant intends to ob- ject to the non-delivery of the wheat altogether, or to the non-delivery at the time or place mentioned in the decla- ration. — Demurrer to third plea, be- cause it should have concluded to the coun'-^jand not with a verification, and bee i.jC it was no answer to the first count. Several grounds of objection 3 52 PLKADINU. PLRAOINO. were taken to the sufficiency of the declaration. Held, ilcchiraf ion uood on general demurrer. Ihid ahn, second plea good, and third plea had on s|ie- cial demiirrcr. Cook et al. v. Mair, iii. U. C.R. ns. Action against executors — Comhi- idon of declaration.'] — 8. In the con- cluding part of a declaration aiininst executors, it was averred " therolore an action hath accrued to the plainlilf to demand and have of and from the defendants, pxenitors as aforesaid, iVc." This was demurred to on the ground that the averment should have been "to demand and have of and from the defendants, as executors. " Held, declaration good. Ferric v. Jones ct al., V. U. C. R. 504.. Action hj attorney for fees — Pica of no bill — Conclusion.] — 9. The plea of no bill delivered to an action brought by an attorney to recover his costs, should conclude with a verifica- tion. Dcnison v. Donclly, ii. U. C. R. 394. Declaration — Conclusion — Prayer for relief,] — 10. It is a good grouml of special demurrer to a declaration that it improperly concludes with a Erayer for relief. Hart v. BTcycrs, vii. i C. R. 416. Plea in' lar — Actionem 7io?t — Prayer of judgment.] — 11. A plea pleaded to part only of the cause of action, if in bar to that part, need not commence with the actionem non and conclude with the pra^'er of judgment. Rees V. Dicky vii. U. C. R. 496. Plea not in bar by its express terms — Conclusion.] — 12. To an action on a promissory note a plea stating that the defendant paid the note on the 31st December 1848 before it became due, when by the declaration it appeared that the note fell due in January 1848. Semble, that such a plea not denying in express terms the non-payment as alleged, should conclude with a verifi- cation. Bourn V. Haufke, vi. U. C. R. 275. IV. Confession and Avoidance. See Bond, II. 5. — De Injuria, 1. — Limitations (Statute of), IV. passim. — Pi.kading, V'I. 1,1, 5. Trespass for assault and false im- prison nirnt — Plea ansn-erins, part, without confessing and avoiding the rest,] — 1.1 he ])laintin' declares against the defendants for an assault, heating, bruising, and ill treating. — A., one of the defendants, justifies, alleging that u|)on suspicion that the defendant had stolen his goods, he laid his information before a justice of the poace of the Niajiara district, who granted a vvar- liinl directed to the constalJe of Tho- rold in the Niagara district, authoriz- ing him to search the plaintiflfs house at the township of Louth, in the said district, for the said goods; that B. another defendant, being the constable of Thorold in the said district, at the request ol" A., searched the house, Ibund the coods, and arrested the plaintilV at Louth, and at the request of A. carried her before a magistrate. Demurrer to plea: Held, plea bad in assuming to answer the whole intpiiry complained of, and yet not denying nor confessing and avoiding the arrest. Jo?ics V. Ross et al,, iii. II. C. R. 'i'lS. Agreement icith a party to return a steamer on a certain day — Plea, that such steatner was re-taken before the day.] — 2. Where the defendant had agreed to return a steamer char- tered on a certain day in good repair, dangers of the lake excepted, it was determined that a plea "that before the day arrived the plaintiff took the boat from the defendant without his consent, and kept her," wad a sufficient bar to the action, though the plea did not in express terms confess and avoid the fact of not returning the boat. Lamed V. McRae, i. U. C. R. 99. i t V. Departure. See Bills of Exchange etc., V. 33. PLC A Dl NO. PLBAOmO. 559 Avoidance. SJURIA, 1. — TE of), IV. 'I. 1,1,5. mil falscim- '•ninf; part, avoiding the dares against iiilt, beating, — A., one of alleging that cfendant had is information jo-acc of the ■anted a vvar- aUe of Tho- rict, anthoriz- lintiff's house 1, in the said ods ; that B. the constable listrict, at the I the house, arrested the t the request a magistrate. /, plea bad in vhole inquiry not denying ng the arrest. U. C.R.3'J8. ',rty to rclxrn day — r/ea, •-taken before he defendant steamer char- I good repair, ;epted, it was "that before ntiff took the t without his ad a suHicient the plea did fess and avoid ng the boat. C. R. 99. IE. E ETC., V. 33. 1. To debt un an indemnity bond the doioudunt pleaded non damnifica- tus, and the plaintiff having replied, shewmg how she waiH damnified, the defendant rejoined that the injuiy arose through the plaintiff's own fraudulent act. — The rejoinder was held a de- parture, and bad on general demurrer. Hamilton v. Davis et al.f i. U. C. K. 490. 2. Debt on bond against two defen- dants, conditioned that A. as a bank agent, should account as oflen as called upon. Pleas, that before action brought A. ceased to be agent, and that while he was ajient, he kept all the clauses &c. in the condition ; secondly, that A. paid the piaintitV the amount of the penalty itt the bond. JTvkL bad on general demurrer, the first plea not answering the condition, and the se- cond not being pleaded as accord and satisfaction, nor any release shewn. Bank of Upper Canada v. Bethunc et al., Easter Term, 5 Wm. IV. 3. To an action of replevin the de- fendant avowed for a distress for rent due to him by one Culhaine on a de- mise at a yearly rent, of which one year's rent was in arrear on the 1st January 1850. The plaintiff replied to this that the close on which the dis- tress was made and on which the rent accruiui was, at the said time when, &c., the close and freehold of him the plaintiff, and not of tlie defendant. — Tlie defendant demurred to this repli- cation, as containing no answer to the avowry : Held, replication bad. Ro- bertson v. Meyers, vii. U. C. R.415. 4. The plaintiff declares in debt on bond for the performance of an award. The defendant pleads no award upon the premises. — The plaintiff replies, setting out the award. — The defendant rejoms matter extrinsic of the award, and relies upon it for shewing the award void. — The rejoinder is bad, as being R Hpp3rr\ii-f from the plea, iliiza- wU v. Ra,isotn^ i. U. C. R. 219. 2 Y VI. Duplicity. See Bills of Exchange etc., VIII. I 9. — De Injuria, 1. — Executor I etc., III. 10.— Pleading, VIII. 1, infra. ' Argumentative and double plea."] — ' 1. To a declaration upon a special i count for dismissing the plaintiff, a i schoolmaster, from his situation befbre I the end of his term without profiable I cause, the defendant A. pleads justi- ' lying the dismissal, but at the same time averring that B. another defen- dant (nade the contract with the plain- tilT, and that he. A., speciiUly approved I of the same: Held, plea bad, in not confessing the cause of action, and as amounting to the general issue, and for being double. Campbell v. Elliott et al., iii. U. C. R. 167. 2. To an action upon a note by an indorsee against the maker, who signed the note in his private capacity, a plea setting up a defence of want of con- sideration for the making of the note as regarded the defendant, together with notice and want of consideration on the part of tlie indon^^er, and also setting up the further defence that the defendant made the note as president, iV:c.. of a company, to be binding only upon the company, and on the under, stancjing with the payee that there was to be no recourse upon the defen- dant, is bad for duplicity : Held also, that the plea is also bad as an argu- mentative denial of the making of the note, and as setting up a verbal under- standing contrar}' to what the maker's signature to the note would import. Ewa}-t V. Wellery v. U. C. R.610. 3. To an action by the payee against the maker of a promissory note, the defendant pleaded that the note was obtained by fraud and without consid- eration : Held, on special demurrer, plea bad for duplicity. West v. Bown (/. y.),iii. U.C.R.291. [Seu cases 6 arid 7, Lofra.] 4. The plaintiffs sue on a promissory note made by A., payable to B. or M4 rLEAomo. Pl.KAUINU. order, iiidurscd by B. to C, nnd by C. to the pluiiitill's, who sue A. B. and C. jointly, uiidi-r tlio stutute. — riieiielcn- daiils plead usury, scltin^^iurlh that tin; maUiii^f of i!ii' noti* inul un'. iiidorse- iiiLMits by B. uiicii.' ;iil wilhuiil consideraiioii ; that C. iiidoiHcd the note and delivered it to A. h»r A.'s |,| accomniodalion, and i.i order to enajj'c him to ))roeiirc a U>an j ll.al A. i!id make a corrupt atrrt'onient w.di D. lor the loan of a sum of money on iisiirious interest, and ::.ive him hi.> no'e as secu- rity, and tliat D. ai'ierward.- ind.t.'sed and delivered the note to the plaintilT';!, who gave him no consideration i'ortho note, addln^f this .special traverse, " without this, that the said C. indors- ed the said note to the >aid ])lainliirs. as in the said declaration is alleiied," and the plea concludes to the country: Held, plea had on .special demurrer, as being ropu. A plea that promissory notes were ohlaim'd hy fraud and covin, rtwrf without consideration, is had (or du- )lirity. S/iii/hv- Gates, iv. U. C. R. 7. To ill! nrtion « ii a nute the de- f(Mi(!ant ['.leads that he was induced to make the note by t/ir JhiittL covin and misirpirAnitntion of the plaintift. The plaintilV repiieii that he did not cause the defenilant to make the note by J'fmul,atpin and niisrrpirsoiUttion in manner and form, tVc. Held, on de- murrer to replication for duplicity, ro- |>lication gooil. Cox v. Cox, iv. U. C.R.207. 5. The plaintilT, the indorsee of a note, declares a^'ainst the indorser. lo whose order the maker had made the note payable. — The defendant is aver- red to have indorsed tlie note to the plaintiir. — The defendant pleads by way of special traverse, admitting' in the inducement die making: and indorsing of the note as iu the declaration men- tioned, and then sets out a cliarge ol" usury between the maker and one A., to whom it averred the maker deliver. ed the note, and that A. al'terwardsde- hveied the .same to tlie plaintilV, who received the same witli knowledge of the usury, "without tliis, that the de- fendant did indorse the said note in the haid declaration mentioned, in manner and form as the plaintifl' huth above tiiereof complained against him, and of this the defendant puts himr^elf upon the country, (kc." — Special demurrer, that no certain or material issue was offered, or could be taken ujion the plea,, and that it ought to have con- cluded with a veriflcaliuu : HcUL plea VII. Inconsistency. Sec Pleading, VI. •i, supra. 1. Where a declaration in trespass contained two counts, the first for cut- ting down trees, and the second for carrj'ing them away, and the defen- dant justified as to the cutting the trees in the said declaration mentioned, becau.se the do.se in which the said trees were growing wiis his soil and freehold, whereupon in his own right he committed the said several trespas- ses in the said close in which, &c., and the plaintifl" demurred specially, because the introduction was incon- ( sisfent vvitli the body of the plea, being I in bar of only part of the trespasses, ; whereas the body was in bar of all, the plea was held sufficient. Ostmnh v. \ O'Connor, m.O. S. 571. ! 2. The justifying under a writ is- I sued in May ISlf) a trespass charged to have been committed in September IS-iS, though bad on special ilenuirrer from its seeming inconsistency, is not necessarily bad on gonernl demurrer. Cameron v. Lnunt, iii. U. C. R. 453. ,'i. A plea stating that the defendant paid the note on the 'ilst December % PLEADINO. PLEADING. 355 |en. Sem- is bad fur sticfJOfl, iv. ■nry notes ;i(l (or ciu- . U. C. R. if the (le- iii(iuccil to covin anil iiitifl. Tlie J not cause note by irntation in rl(/, on de- iiplifity, ro- C'nx, iv. U, CY. supra, in trespass first for cut- second for the defen. cutlins: the mentioned, ch the said his soil and i own riglit Tal trespas- which, &.C., I specially, was incon- ; plea, being trespasses, ar ofall, the Ostmm V. r a writ is- uss charged I September al demurrer ency, is not il demurrer. C. R.453. le defendant st December 1848 before it became due, when by' men counts for board, &c., found for the the declaration it appeared that the defendant's illeirilimnte child, at the note fell due in Jamairy 1848. is bad defendant's rrffurst, aiie^inir a subse- for inconsistency on general demurrer, (pieiit promiseof the defendant to pay. Bov'n V. Haukr, vi. U. C. R. 275. &:c,, the deferMJant pleads a denial of 4-. In a declaration on the case for !''•' retpiest.— The plea is bad. as rest- procuring without reasonable cause the ''? '''^" dpl'-nce on an immaterial point, plaintiff to be indicted al the Court o) '•'•' promise should have lu-en denied. Over and Terminer, averments, \\^p^ Flulirrty v. Mairs,\.\]. C.U. 2i\. the defendant on the 2>/./ of .ho>.: sia,Hhr-Travcr,cofimh.cnncnt.-] went before a Court holder, on //.r Ut 3^ ^y,„.^^, j,, ,.^^,. (bV «|nnder of the of J,me nnd that the plaint.fl was ,,,•„„•„,. -,„ ,„^ ,,„i^^. ^,. ,^^..,^^„.,.,. ^,. j,,^ iT'"!'i"V.^l'!,l^''"'.^^""^"^ I»^ «tn't-d as induce- inent that it was his duty to return to e government a correct account, on jonth.ofall sums received by him from j collectors for assessments, and averred I that the ilefendant had .illeged that he i had perjured himself with respect to I such statement, and the deli?ndant ; pleaded negativing the inducement ment found by the Court of Oyer ami Terminer, were held bad. As)if(jnl^'^\^ V. Golieen et a/., vii. U. C. R. oH VIII. Matekiality. See Arbitration and Award, VIII. 6. — Exi:cuTou etc., III. li. — In- siRANCE, 1. — Limitations (Sta- TLTE of), IV. 12. — Pleading, I. 17; VI. 5.— SHERiFr, III. 5. Covenant for (piiet enjoyment — i Isme of title being in a tliird jmrty.'] \ — 1. Where in an action on a deed in L , , ,-, , , n> , ■ ■% fee for breach of covenant for quiet '/'^".'f^' '^''\ "f '"'"''' *.^^<'.M'^-^t'l enjoyment without the hiuderance 6ic. : " "" f ^'laration '• lor mahcmus- of the defendant, (the grantor), oranv ! '>' <^»"^'"g «''^ P "'",'" ? ^e arrested,' «„„ ,.i„:.„:„.. .,„.i;._ !.,_ ^i.„'^. !..:_. :;r the delendant pleaded that he did not make the atlidavit stated in the decla- ration ; to this the plaintitV demurred, cution of the covenant to the plaintiff; "^^'ig'^i-'g f"-" ^necial cause that to the lands and woods conveyed, ex- 1 only — the plea was held bad on spe- cial demurrer, as tendering an imma- terial issue. Johnston v. McDonald, i. U. C. R. 384. Malicious arrest — Plea, that de- one claiming under her, the plaintiif declared that A. and others who had i title from her at the time of the exe. i pelled the plaintiif under such title, and the defendant pleaded that A. and the others iiad not the tide to the lands and woods under her at the time of the conveyance to the plaintiff: Held, on special demurrer to the plea, that the allegation of title in A. and the others at the time of the conveyance was immaterial, and not traversable, and I that he was seized in fee of a certain specuii cause that the plea amounted to the general issue, and while professing to answer the whole cause of action, it answered only part, and as tendering an immaterial issue. Long v. Lee, iv. U.C.R. 377. Trover — Colorable and imviatcrial matter.'] — r>. To an action of trover for 3000 feet of oak timber, and 200 bushels of wheat, the defendant pleads that the plea was bad in denying the tide of A. and the others to the lands atid woods conjunctively, and not dis- junc ;ely. Givynne v. Brock, Hil. Ter a, 5 Vic. close, and being so seized he cut the said wheat and timber thereon growing, and afterwards, &:c., delivered the same to one A., to be kept, who de- livered them lu the plaintiff, wherefore Comnum assumpsit — Denial of re- j the defendant took them out of his pos- ?«***<.] — 2. To an action on the com- j session, &r. ; the plaintiff replies that ii ^..^jj^iiULi uimAUii 356 PliRAPINO. PLEADING. the property vva.-* the plaintiff's pro- perty, without ihi.s, &c. — Demurrer to repUcation, that it traversed colorable immaterial matter; also, general demur- rer to the plea, that it does not shew the property belonged to the defen- dant: Held, replication bad: Held also, plea good on general demurrer. Millard \, Kirkpatrick, iv. U. C. R. 248. Qitrere: If the pie.-' would be good on special demurrer 1 lb. lAinMord a letter is actually carried, .ind not acordmt; to act, and the at ifthehar- mpty vessels k1 tliey found iants : 7^/r/, wPrnt I, a- if). I'erm, BOR COM. atnte 4 Wm. 'iviiig benefit !)or. in itsun- llie toll'; !)iv- Uorlmr {' ■«'• C. R. 14.*. OR COM- >N, 6. In. 17. — Eject- I. ].— KXE- :an. — Land- l.'.i. — Lkave Limitations isiin. — Main- f), passim. — ; II. 27, 29, III. 10. E. ;e etc.. III. nf Jni inland ic (JM a letter ion iVoin on<; i\ be ('barged the letter is acr.onlinj; to POirNDAGU ANOHHKRIFK S t'LES. the distance by the post road between the two places. Dlch>inti. v. Cifjohs, Dra. Rep. 1:2a. Ad ion against post i/instrr for ne- u:lcct of ilntif — J)icl(ir((li(m.'\ — 2. An action will lit; iiLialiisiii pd.-t nia.-ler lor nut sendiiiir a letier, but the plaintiirin his declaration must aver that the let- ter was his. Cii)iq)hvll v. Mcl'lwr- son, Mich. Term, 3 Vic. eov/ena. 359 POUND AND POUND KHEPER. See Mastkk and Skuvant, 3. — Trkspass, II. l(i, 17. POUNDAGE AND SHERIFF'S FEES. See Attorney, 11(2), 1.3.— Couo- NEK. — Mandamus, 20. — Qlak- TEK Sessions, 2. Execution p/arrdin slnrifpa ha?/(/s -Coiniirondsi' drfoir i>(i/e.'\ — 1 . Qmcrc: If a shenll'is t-ntitled to pounda|^o on a fi. fa atiainst lands where ho adver- tizes the lands, but before sale the par- ties compromise ? Hates vt al. v. Cimhs, iii. O. S. 2Sti. [See two lollo\viir<; cases.] 2. A sheriir is not entitled to ponnd- ape on a li. fa. aiiainst lands, where, atier the deliveiy of tho writ to him, no money haviiiL' Ix'cn uuide upon it, the plaiutilf and delendaiit compru niise. Jjnnin'iittiLw Jls settle, the plain- tilfinay apply to the coinl to fix the amount of sheritV's lees on the execu- tion, but lie will not be allowed the costs of the 'ule, even thouj;ii no cause be shewn against it. JIumc S/icri//', In re, P. C. Macaulav, J., i. U. C.K. 4.12. Levi/ on r.st,rriitril nroiznizinux — i*(/M«(/rtf;e.j — !■. AVliere, on a levy on i an estreated recognizance, the Crown I ilischarges tlic estreat on payment of ! the slieriir's fees, the sherilV is entitled to poundage. Medina v. Viuning et al.y Hil. Term, 3 V^ic. IV/ien >'/icri(/' entitled to poundage n)idcr ca. .w] — ."). When the sheritf has the party in custody on a capias ad satisfaciendum: Held, that he has so lar made the money, (the body be- \\vs .^alisl'action), as to give him his claim to poundiige under our rule of Hilarv Term, 10 Vic. Corbett v. Mc. Kenzie, vi. U. C. R. 60.^. Milentse.l — (i. A sherifl'is entitled to mileage only (Hi going to make a levy, not on going to sell also. liur- wll V. TomlinsaUf Hi!. Term, 2 Vic. 7 Wm. IV. ch. 3.]— 7. Where a sherilV, before 7 Wm. IV. ch. 3, sec. j 32, levied oil a defendant's goods he I was entitled to poundage, although there was no sale afterwards, tliat act not liavinga retrospective elVect. Cum- inercial Dunk v. Vnnnormun, Trin. Term, 3 Si 't Vic, P. C, Macaulay, J. POWER OF ATTORNEY. See Aukituation and Awaud, VFl. !'. — Attachment, II. 3, 4., ^. — Deed, I. 2. — Foi;eu;n Law, 3. — PiUNciPAi. AN!j Agent 6. Grnertd pcivcr to si;^n bills, <^ • - Power l'> indorse.^ — A general power to an agent to «i^n bdls, notes, and to superintend, manage and direct all the alfairs of the [uincipal, gives him a power to indorse notes. Auldju v. McDtnigull, iii. 0. S. 199. POWhRS. iiee Distress, I. 12.— Estate, 1,7. Will, 7. imamjm-j 360 PUACTICC. PRACTICE. PRACTICE. I overtures of accommodation. Greyv, See Abatement, 5, 0.— Affidavit. ! IMmc, Tay. U. C. K. 54.1. Amendment.-- Ai'PF.AL.- Appear- j Further time, how drained.'] — 3. ANCE. — Arbitration etc., II. pas- After service of demand of replication, sim ; VI(1). passim ; V'lII. passim, rejoinder, A:c., a party desirous of Arrest, I.; IV. 10. — Arrest of ^ havinii lurtlier time must obtain a rule JiDGMENT.-AssEssMENT OF Dam- j of court ora judge's order for that pur- ages. — Attachment, II. — Bail, 'pose. Small v. Mackenzie, Dra. I; IIL-CassetirBilla.— Costs Rep. 253. DemlRREUS. — Kjectment. — Evi- j [Sw case 34, infra.l DF.NCE.VIII.— Execution, passim. pi,,as not intituhd in the cause, Information. — Interlocutorv „„,. si■• U. C. R. 285. rieos fded hut not .smvy/.J— 7. It is jullicient if pleas be filed in the pro- per otfice to prevent the plaintiff sisrn. ing judgment, though they have not been servetl. Mackinnon v. Johns- REIN Continuance. — Replevin tort, iii. O. S. 169. ETC., 3.— Similiter, 2. j §. ^ is not necessary tliat special Demand of plea — Service.'] — 1. A pleas should be served; if they be demand of plea cannot be served before filed it is suilicient. King v. Dunn, declaration filed, however short the Easter Term, 2 Vic. time may be. Bcadv. Jolinson,Tuy. \ ^'imetodeclareo'jainst aprisoncr.] U. C. R. 674'. j — 9. VVhere a delendant wascommit- Time to plead — Reneind.'] — 2. ted to prison on a bailable writ and Time may be granted to plead partner- afterwards, and before the return day ship in abatement, but it will not be of the writ, ^vas released on bail, and renewed on the ground that it had been | on the return day of th«' writ entered omitted to be filed in consccpiencc of special bail, hu it not entitled to be ICE. PKACTICB. PRACTICE. 361 nlntion. Greii\, i. 54.1. w o//faincd.'] — 3. iind of replication, lurty desirous of iiust obtain a rule order for that pur- Mackcmie, Dra. rr? in the cause, 7/.] — 4. Where lied in the cause torney, but were ylc of the cause ne.and \verere<;ii- , anil the plaintiff lullily and signed nt — the Coiirt set Averill et aJ,. v. 176. ornet/sname.'] — ary that an altor- e subscribed to a lated in the com- s V. Davis ct al., .IV. VI in a dixirict fioiH v'tiirh vrit iitiir cannot, after ;. in one district, another. Thrnop R. 285. 1/ srrvrd.] — 7. It )e fded in the pro- the plaintiflTsiirn. > they have not tinnon v. Juhns- lovet,lv a.-.l careless'''''" "':;,r"'' ^;"- ^ere lou.u by die style, the Cuuri, aUhoi. j. expressing plamnll : Srm/>/,^, that this ohjection an o[>inion in favor of the i)laintilV on \ ^^"" deminrer, will lVei)ucMtly ilin-ct him to amend without costs. Miirnlni v. Biirnkam, ii. U, R. 2t)l. and then signed judirnienf for want of a plea, the Court set aside the pro- ceedings with costs. Ryan d al. v. Leonard, iii. O. S. 307. [Appearance in person — pleading by at- torney — See Irrkgclaritv, (].] Declaration — Misnomer — Amend- ment after sfmte.]— 24. tiemhie: Where a declaration is amended in the name of the plaintilT it is sulilcient to amend the declaration fded, without filinii an amended copy of the decla- ration. Hart ct al, v. Batjle, Mich. Term. 5 Vic. Phaa amounting to gcncrcd issue idien general issue also jdeuded.] — 2;"). The Court refused to strike out several pleas on the ground that they amounted to the general issue, which was also pleailed, and sen/die, the plaintitVshoulil have tiemurred. — (Ma- caulay, J. dissentiente.) Truaxetal. v. Christ 11, Dra. Rep. 224. Assu7npsit — Omission of party to whom ])rornise made.] — 26. In as- sum]>sit the omission in the declariition of the statement to whom the promi- ses were made, can be objected to only I on special deminrer. Miller v. Muu- ' ro, EastiT Term, 2 Vic. Omission of a nrccssdry averment — ITntr tdhen advantage (f.] — 27. In debt OH motion to arrest judgment on the gmund that " it was not alli'sed have been good on speciid de- murrer. Kendrick v. MaxiceU, vii. U. C. R. 94, Service (f d-daralinn on d fendam iftet ajrpearanre l>ij attornei/,] — 23 Several breaches t'^'' g«''«'-''l ''^''""'•'•^■'•' ''■"•» entered by the .lefendant's attorney.!"' ^''^'" ''^ -'^"^- ^"'''''''' "• A'/-^'^'"' although it seemed to hiive been mislaid by the deputy clerk of the Crown, and j '■* riainti.lf'* instead of "defen- the plaintiiV servi'd his declaration on dant."'] — 2!). It is no ground of de- tlio deleudant and net on his ullurney,|murrcr to write, by mistake, in the i PKACTIC-K. PKACTICR. 363 t for want of itie tlie pro- yaw a al. V. ilruiling by at- '■;• — A mrtid- l^. Snulile: iiL'iuled in the s HiiHicitMit to filt'd, without f the (loclii- Um/lc, Mich. 'XHcral issue 2)Uailvd.'\ — to strike out ml tliat they issiie, which scnMc, the urred. — (Ma- Tntiix rt al. of party to -26. In' as- le tloclaration Ti the promi- ijecteil to (inly iller V. Mau- ri/ averment ■;/.]-'>7. In ju»li;iiierit on i not alli'i.'eil found ljy the ihis olijection m s|)eci!il dc- MilXlcrU, vii. >/rI,fi)if i;tiOf!.'\ 1 several lirea- iitilVisenlitied nuirrer, if one /if.' V. Lys/cr, "f ""''/'"'*- irounil of de- istake, in the pleadings, " plainlifl" instead of " de- fendant," where there can he no doubt as to wlial was meant. Hat/ward v. Harper, iv. U. C. R. 4.89. Declnratioii unl conforming to ccr. tniti lien: ni/es, hiil, othrricisc unod.^ — 30. It is no sronnd of dnimirrer, that a declaration ii])on nhill or note does not conform to certain new rules, if it he otherwise uood in itself. Achcson v. l]kKcnzie,\v.V.C. R. 230. One rrjt/iratinn to tuv picas — De- munrr — .liid aside pleas for fraud.] — 33. The Con ft will not interfere summarily to set a ide a j)lea on the ground of fraud, except in manifestly clear cases. Waltcnherger v. MrLean ct al., iv. U. C. R. 3r)0, and Smith v. Dissitt, V. U. C. R. 20(). Further tiii/e tn declare.'] — 34. A plaintilf may take out a rule for ;i month's furtluM-time to declare. Stch- Inns V. Vic. O'Grady, Mich. T erm. Alloii-inn drfnidant to plead after the entrif i,Tr\n.Tvrm,2 it 3 Vic. men rules nisi beemne absolute.] — 3. Semhle, that rules nisi do not bei'ome rules nS-alute, though ordered to be made so by the Court, until they arc drawn up or is.sued. (Unnmercial Jianh V. lluahcs et al., iv. U. C. R. mi. Rules vtust be obn/ed, ihoug/i. iufur- ni(d, lelien not set. aside.y--\<. Jf a rule of this Court Ih^ iiiH)iiuiil in ils in. titulint;, (he party must move to set il aside; while it continues in force it must bi r)beved. ITeiUlier v. Ward- tnan.w. V.'C. R. 173. S<)4 PRACTICE PRACTICE. Netc matter on return of rule nisi.] — 5. At the return of a rule nisi, tiie party who has obtained the rule cannot produce aHidavits containing new mat- ter. Gavan v. Lyon, Tay, U. C. R. 599. [Also, see case 41, infra.] Reviving oflajiscd rulcnisi.l — 6. The Court revived a lapsed rule nisi, upon artidavit that it had been served and transmitted but mislaid, and did not arrive until alter term. Johnson V. Durand, Dra. Rep. (ib. Rule nisi grcmtcd nuncj)ro tunc.l — 7. Where there was a verdict lor the plaintiflf, and the dolendantdid not move for a new trial within the first four days, owing to a misapprehension on the part of his counsel that the plaintiff's counsel was to have disposed of the question of new trial on the ar- gument of a demur.'; r in the cause without any rule, a rule nisi was grant- ed nunc pro tunc. Dank of Montreal V. Bethune, Trin. Term, 5 St G Wm. IV. Refacnce to computr — Service of rw/c.J— 8. The aflidavit of service of a rule nisi to compute, must shew (if a personal service be not elTecled,) that the copy was served at the defendant's place of abode on some grown up per- son connected with his h>^ use *iold. Mittleberger v. Whitehead et nl., Mich. Term, 1 Vic. [So service of a rule at the dcfendanl's resi- dence on a person who protniscti to give it to the defendant was insufficient, as it should have been shewn that the person so served ■was connected with the defendant's residence. Taylor v. miittvorth, ix. M. & VV. 478.] Rules-Parties^ names.'] — 9. Rules, as well as alfidavits, must be intituled with the christian names of the parties of the suit in full. McNeil v. McNeil, Trin. Term, 2 & 3 Vic. Rtile nisi, when a stay of proceed- ings.l — 10. A rule nisi does not oper- ate as a stay of proceedings, unless fo expressly declared in the rule. Hast, ings V. Champion cf a^.,Mich. Term, 3 Vic. Titles ofaffidants and ndesin two causes on sai7ic motion.'] — ^Ji. Where the same motion is made ir two causes, affidavits may be used and rules intitu- led in both, as well wherj the motion was against a third party, as a sherilT, as inter parties. Commercial Bank V. Vanorman, Trin. Term, 3 &. 4 Vic, P. C, Macaulay, J. Affidavits nf loth plaintiff and defendant imprnjierly styled.] — 12. Where a defendant moved for a rule, on an aflidavit incorrectly intituled as to the cause, and the plaintifl', in shewing cause by his attorney, intituled his affi- davits as ihc defendant had intituled his, stating the proper style of the cause and shewing that he was not attorney for the plaintiff in the cause in which the affidavits were intituled, the defen. dant's rule was discharged, there being a fatal variance if there were only one cause, and if there were two, no service being proved ; it was, however, dis- charged without costs, as the affidavits of the defendant were intituled in the same way as the aflidavits of the plain- tiff, whereas they should have been intituled in the right cause, denying the existence of the other. Terry v. Matthews. Trin. Term, 3 & 4 Vic, P. C, Macaulay, J. Contradictory affidavits as to facts!] — 13. Where, on a motion as to a matter of practice, the affidavits are contradictory as to the facts, the rule will be made absolute or discharged without costs. Orr v. Stahback. Trin. Term, 3 & 4 Vic, P. C, Macau- lay, J. Opening ride.] — 14. The Court will not open a rule after it has been made abs(!lute, where the opposite party has had regular notice of the rule nisi and full opportunity to an- swer it. Palmer v. McDonald, Trin. Term, 4 &, 5 Vic. [See power of judge to open or rescind hi* own order— JvDOE (in Chambers), 5, ICE. !s and rvles in two ion."] — li. Where ladc ir two causes, ftl and rules intitu- vvlierj the motion p.irtj , as a slierifT, "'ommcrcial Bank in. Term, 3 &, 4 ay, J. th plaintiff and vly stylp(l.\ — 12. moved for a rule, ectly intituled as to >laintiflr, in shewing y, intituled his affi- dnnt had intituled pr style of the cause c was not attorney ic cause m which intituled, the defen. harged, there being icre were only one ■e two, no service vas. however, dis- sts, as the allidavits ere intituled in the lidavits of the plain- should have been t cause, denying the other. Terry v. erm, 3& 4 Vic, P. fjidavits as to fads.] a motion as to a , the allidavits are the facts, the rule •lute or discharged ■• V. StolSack, Trin. c, P. C, Macau- —14. The Court ilu after it has been 'here the opposite ^uiar notice of the opportunity to an- r. McDonald, Trin. ! to open or rescind hi* N Chambers), 5. PRACTICK. PRAUTICE. 865 Irregularity — Misnomer in rule.'] \ writ did not appear to have issued in . 15. A rule nisi having been obtain- 1 the cause, the rule was discharged. ed to set aside a bailable writ and ar- Williamson v. McDoncll ct al., Trin. rest thereon for irregularity, the rule Term, 7 Vic, P. C. Macaulay, J. was discharged without costs, for a i Pointing out irn-guhirity.'] — 20. variance between the christian name of the plaintfl' in the cause and the name in the rule. IIiU)crt v. Jolin- son, i. U. C. R. 403. Pointing out irregularities in rule If an arrest be moved against as irreg- ular, the irregularity complained of must be pointed out in the rule, or re- ferred to in the rule as appearing in the aflidavits. Cook cl ul, v. Norton, or referring to t aside the service of process made hy ii ttranger, and verify! nt; tlit^ copy of prccess ohjected to by tin; information and belief of dej)onent that the def.-n- dant was served witii " the annexed copy of process ii> the cause, and no other," is insullicient. Balaj v. Brown €«a/., ii. U. C. R. 99. Dischaviiui^ rule for luncndmoit hy 2^l(iiftfij/\ after ar^innent on dc- mwrer.'] — 28. After araunient on ile- murrer to the plaintitV's declaration, the plaintilV had leave to amend on payment of costs, bin afterwards, and before any aniendnient liad been made. the deiendant obtained a rule slayinir all further j)ro(eediii!is in the cause on payment of the costs of the cause. The defendant aftrrwarils,and withont paying or taxinsf tiiose costs, moved to discharge the plainlilf's rule to amend, because the aniendnient had not been made, nor (•o^ts of demurrer j)aid, and the Court dischnriied his rule with costs. HuU V. Keilh, ii. U. C. R. 100. Motion against an irreguhnity — Informality in aJfidavil,.'\-2iK When- a defendant moved to set aside an alias writ for want of an original to warrant it, and in \u6 allidavitdid not .-hew that no original writ had issued, his rule was discharged with costs. Huglns V. Hamilton ct al., ii. U. C. R. 172. Pointing out irregularity.^ — 30. Where a rule nisi is moved to set aside the service of process on grounds dis- closed in aflidavits filed, and the irregu- larity com])lain»*(l of is in the copy of process annexed to the atiidavits filed, and dot;s not appear in the allidavits alone, the rule should be discharged. IJates V. McJSLdiou, ii. U. C. R. ns. Change of rule from nonsuit to neu- Iritd.'] — 31. Where a deiendant obtains a rule nisi for a nonsuit as on leave reserved, and it niteruards aji- pears that no such leave was reserved, the Court will not allow him to change ills rule into a rule for a new trial. Doe dem. Gillciso/i, v. S/iorey, ii. L'. G. R. IS 3. Misstatement of irregnlarily vimrd ag(unsf.\ — 32. Where a rule nisi was oiitained to set aside a verdict on the jironnd that tbe jinlL'cat Nisi Priushad improperly allowed the aniendnient of the venire on tlie Nisi Priiis record after the jury were sworn, and that the cause was tri«>d without the jury being re-sworn after the anieiidment, and it ajipeared it was the jinala.n\\i\ not the ivw/Y' that was amendeil, the riilt! wasdischarged. Jarrisw Thomp- son et al., ii. U. C. R. 271. Irregnlarily — Waiver In/ irregular jmrty — Costs to opjnsite parti/.l^ — 33, Where a party in a cause fakes an ir- remilar jiroceedinc, which the opposite parly moves to set aside, and the irre- gular jiarty then gives notice of the waiver of such proceedini.r, the party moving will be entitled to have his rule made absolute, imle.-s the cosfstowhich he was ])iil to were paid, or tendered to him at the time that the notice of the waiver was given. Kelly v. Bleek- fT, ii. U. C. R. 377. r<,if/t//ig out hreguloi-ily.'] — S't. If, on a motion to set aside proceed- ings fo. irnx'ularity, the irregularity complained of is neither pointed out in the rule norrcferred to distinctly in the allidavits, the ruh> will he discharged. Gordon V. Cnrriek, ii. U. C. R. 379. Style of cause — Intituling of affi- datnts.'] — 3,5. Where the defendant the ropy of linvits filed, lu> alVulavits diiscliiir^ed. U. C. R. nonsuit to a ilclciidaiit Ktis'uit as on I'lwanis ap- as iL'si.Tvcd, tu iDclianiie 1 ii'-w trial. I'ltrij, ii. C (irfh/ 7)invpd iilc nisi was lid on the isi Fi'iushad u'ndint'tit of drills record rii, and that int the jury anirndiiient, y'?//7(/aand luendfil, the '.sv. Tlidiiip- I. hy irrrsii/nr >(U'/>/.\ — 33. fakes an ir- tlir opposite ind the irre- olice of the i true style of the cause — the Court allowed a pre- liminary olijection on that j;rountl to prevail, and discharued the rul'*. flnmt V. Tayldi- rt aL, ii. Li. C. R. -lOT. Rei'iriiiii ariilr nisi (iflcritsabaH- (lunme/U.] — 3(J. Tlie defendant, after a verdict in dctinui* lor the plaintill and Is. daniaiics, was irrantcd a ride nisi for a new trial ; but, having ohiamed a certificate to dei)rive the plaintilf of costs under 13 Kliz.,he serveil a writ- ten notice on the plaintill",; attorney, that he dill not int'iid to i)roceed upon the rule nisi, which accordiniriy was never taken out or s( rved ; afterwards the certilicate to deprive the j)!aintitr of costs was roscindi'd, and liie deli'n- daut then ohtalned a ride nisi to revive the rule nisi he had aliaiidoiied,l)ut the Court refused lo make tin- rule abso- lute. DdcidsdH V. Riuldick, iii. U. C. R. 82. Hinv far joint mnlnniors hmnil hij a rule sercrd h jutii om' of' tkciu ii/oao.'\ 37. The plaintilVssue A., H.and Con a joint contract ; H. allows jiidi£iiieiUto go by default. — Tin; plaintill's liiiliiii^ to prove a joint coiiijact, accept a non- suit as to H. and C, and lake a ver. diet against A. — A. moves in ti^rm to set the verdict aside. — J3. and C. are not made parties to tiie rule. — The Court made the rule absolute. — Tiie order is not served on IJ. and C, neith- er do they adopt nor act upon it. — B. and C. at'terwartis enter judgment on the nonsuit : Held, that B. and C, not being parties to the rule nisi, are not bound by the order made thereon, unless tliey can lie >lievvn to iiave been served with il, or to have adopted or acted upon it. Cninnit ici(d Jinnk v. Hughes et al., iv. U. C. R. ]ti7. PHMTI'ICE. 367 Irregular fniKredhm hf p'lrty mm'ing auai/i.st an irrvgnlarily^ — .38. A i)aity iiiDviiig to set aside the proceedings of another for irrenularity must be strictly regular in his own. Where, for instance, a party takes out a four-day rule on the Wednesday be- tbre the end of the term, and neglects to serve it till Friday, the Court will not allow him to amend Ids rule so as to make it returnable on Saturdav. llutdvr V. Tkurtdl et uL, iv. U. C. R. 170. Intituling njjhhmt tlrnying service of an aivardl — 3f). An allidavit de- nying service of an award must be intituled in the cause, and not '» the Queen v. Defendant," as it is an affi- davit made before the attachment has been ordered. If the affidavit how- ever contain a good answer upon the merits, the i^arly will have leave to swear to an amended atlidavit. Heath- er V. Wardman, iv. U. C. R. 173. Rule to (l/scofitinur — VaijuHmt of ms7.s ] — -to. Unless the plaintilf, upon taking out a rule to discontinue, serve the defendant at the same time with an appointment to tax costs, the de- fendant may resrard the rule to discon- tinue as a nullity. Pcrrin, rt al. v. Eaglcsnni, iv. U. C. R. 2 ;")-!•. Qhjcdions raised in argument not d/sc/osr/l on motion ] — 41. The Court will not disturb a verdict upon an ob- jection taken upon the argument of a rule nisi, which had not been disclosed in moving the rule. Corner v. Mc- Kinnon, iv. U. C. R. T ' V Enforcing award l/i/ ^uchment — Intituling of jiapcrs.l^ — "tS. In an application for an attachment for the non-payment of money ordered to be paid by an award, the submission be- ing by bond, the rule nisi was intituled " in the matter of A. v. B." — The affidavit of service was intituled in the same way. The rule making the sub- mission by bond a rule of this Court, i was intituled in this Court, « A. v. B." IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 ^1^ lii ■^ iiii |22 IS 1^ 12.0 •f Mb WUU 14 li^ Photographic Sciences Corporation 23 WIST MAIN STHIT WnSTIR,N.Y. 14SM (716)172-4903 ii7 368 PRACTICE. PRACTICE. I m The affidavit of the execution of the award vvajs intituled in this Court only : Held, that tlie intituling of the rule nisi and the alTidavit of service thereof was correct. Held also, that there was no material variance between the intitu-ing of tne rule nisi and the other previous papers. Beckett v. Cotton et al., /.? / ', V U. C. K. 271. Jri ■■' uin^f, taken after service of rule /'■>■■ ■"d!n!^ the same-l — 4'3. Where a lule with a stay of proceed- ings hiv lieen taken out and served to i 3 A plaintiff's attorney swore that the de- fendant's attorney agreed to take short notice of trial, which the plaintiff's at- torney denied : Held, that the verdict must be set aside. St7iith v. Ask, v. U. C. R. 497. Service of papers.] — 10. The rules of this Court of Mich. Terra, 4 (Jeo. IV., respecting the service of plead- ings and papers in a cause on an attor- ney residing out of the district in which the action is brought, apply equally to all districts, and to the attornies for both parties in the cause. Clemoio v. Her Majesty's Ordnance, v. U. C . R. 458. Agreement between parties contra- ry to the jvacticc.] — 11. The Court will not carry into effect an underta- king between parties, that one of sever- al defendants who ha not pleaded shall be considered as having pleaded, and as standing on the record in the sarae position as the other defendants. Sif- ton V. McCabc et al., vi. U.C.R. 394. Cause once determined finally dis- posed of.] — 12. This Court fully recog- nizes the English rule of Hil. Terra, 3 James I., which orders that no cause once argued and determined shall acain be brought before the Court. Jioulton V. Randall, Tay. U. C. R. 160. PRACTICE COURT. The lull Court will not entertain any motion that has been already heard and (li'temiined in the Practice Court. Notman v. Rapclje, Mich. Term, 7. Vic. PREROGATIVE. See Certiorari, 5. PRESBYTERIAN CHURCH, GALT. Ejectment hy trustees — Demise.] — Where, i)y detd of bargiiin and sale, 370 PRKTENDED TITLE. PHlNCirAL AND AGENT. ■} ! • M land was conveyed to certain persons named as trustees, and " to others" not named, and their successors, to hold to the persons as named, and " to oth. ers, trustees as aforesaid, and their suc- cessors in office, in fee simjjle absolute- ly forever, to the only proper use and behoof of the said (the persons named), and others, trustees as aforesaid, and their successors in oflice for ever, for the use of the minister of the Presby- terian Church, Gait, in connection with the Church of Scotland, and his sue cessors in oflice in all times coining, provided that such minister shall be a member of the synod of Canada, in cont;cction with the Church of Scot- land :" Held, that no action will lie on a demise in the name of the trustees of the Presbyterian Church at Gait, as in a corporate capacity, but that a demise might be laid by those named in the deed, though they were not in fact trustees as the deed assumed them to be. Doc dcm. Trustees of the Pres- byterian Church iti Gait et al. v. Bain, iii. U. C. R. 197. PRESCRIPTION. Sec Easement, 1, 3, 5. PRESENTMENT OF BILLS AND NOTES. See Bills of Exchange etc., II. passim. PRESUMPTION OF DEATH. See Evidence, VI. PRETENDED TITLE. See Maintenance (Statute of). PRINCIPAL AND AGENT. See Auction etc., 4. — Bills of Exchange etc., II. 8; V. 1. — Contract, 11. — Evidence, VII. 4. — Limitations (Statlte of), I. 4. — Malicious Arrest, 2, 7, 18. Power of Attorney. — Set off, 16. — St. Lawrence Canal.' — Trespass, I. 16. — Trover, I. .5. Personal liabilily.] — 1. Commis- sioners appointed under an act of par- liament employing persons to make a macadamized road are not personally responsible. Kcio v. Burn et al., Trin. Term, 3 & 4 Vic. Countermand of directions to agent after they had been imrtly executed^ — 2. Where in assumpsit for money had and received the defendant pleached that he had received the money as agent of the plaintiff, and had paid it over by his directions to a person to whom the plaintiff was indebted ; and the plaintiff replied that he counter- manded the direction before payment, to which the defendant rejoined that before countermand or any notice thereof he had given notice to the plaintiff's creditor that he held the money for his use, the rejoinder was held a good answer on demurrer. Coates V. Uoyd, iii. U. C. R. 51. [See Auction, etc., 4.] Action by agent for money lent — Defence of money being unnther''sJ] — 3. A person receiving money from an agent, on a promise to return it to him, cannot, in an action by the agent to recover it back, set up as a defence that the money really belongs to a third partv. Lister v. Burnham, i. U. C. R. 419. General agency — Special agenaj.l — 4. Where A., the general agent for shipping B.'s Hour, shipped 25 barrels of it as usual to A. & Co. in Kingston, and, before the sailing of tiie ship, D., another agent, under special instruc- tions from B., shipped the same Hour to Messrs. B. t-V:- Co., in Kingston, to PRINCIPAL AND AGKNT. PRINCIPAI. AND SURETY. 371 be forwarded to Montreal ; Held, that as the owner of the flour could at any time change its destination before the ship sailed, the owners of the ship were liable to B. through their master's last bill of lading, given to the special agent D., the flour having been for- warded by the master in mistake to Messrs. A. it Co. in Kintrsion, and left there, instead of beiiitr forwarded, as last directed, through B, & Co. to Mon treal . Graliam v. Browne ct at. , V. U. C. R. 234.. Riyit of ])riHcij)al to site on con- tract made by age/tt.^ — 5. Semblc, that a principal, for whose benefit a contract has been made by his agent, may sue thereon in his (the principal's) own name, though the defendant may have known nothing of the princi|)al's interest in the subject matter of the contract at the time. Mair v. Holton, iv. U. C. R. 505. Appointment of agnit to receive tnonci/ payabh' under a bond — Seal.^ 6. Where a bond was given to certain persons appointed under act of parlia- ment for the payment of money at a certain place,and the defendant pleaded to an action on the bond that the piain- tilFs appointed an agent to whom the money was to be paid, and that the ngent received it, but not at the place : Heklf on special demurrer, that it was not necessary that the appointment of the agent should be under seal to vary the condition, and that his receipt of the money was a sutficient discharge of t!ie bond. Regina v. Sneidcr et al., Trin. Term, 3 & 4 Vic. Action by principal against agent — Defence, set off, tj-c.] — 7. Held, that the defendant, upon the facts stated in the report, had no right to a set ofl' against the plaintifl' upon the common counts, neither could he sup- port a plea of payment, oi* accord and satisfaction; but that if he had any remedy at all against the plaintiff (and the CoiTt thought none existed), he chould have brought a special action for negligence. Sword v. Carruthers, vii. U. C. R 313. Stoppage in tt'ansitu.l — 8. Semble ' also, that in this case the defendant had not put it in the plaintiff''s power to exercise any right of stoppage in transitu. lb. Payment to a solicitor — Question of agency.^ — 9. Held, that under the circumstances of this case (as given in the statement and judgment) the soli, citor could not be considered the agent of the plaintiff, so as to make a pay- ment to the solicitor from the defendant a payment to the plaintilT. Proudfoot V. Murray, vii. U. C. R. 456. PRINCIPAL AND SURETY. See Bond, II. 17. — Contract, 10. — Division Court, 5, 6. — Executor, ETC., I. 12. — Limits, II. 15. — Re- PI,EVI^f, ETC., 7. — Scire Facias, 6. — Sheriff, V. Cliange of office for which security given — Surety no longer responsible.^ — 1. A surety by bond, for the due performance of the office of a bank agent, is not responsible for losses oc- curring after the nature of the agency has beer chan^d and the agent ap- pointed a cashier. Bank of Upper Canada v. Covert et al., Trin. Term, 7 Wm. IV. Surety cannot sue co-surety vrith jiri/wipaLJ — 2. A surety cannot sue a co-surety jointly with the principal, for the amount of a debt of the princi- pul which the surety has been obliged to pay. Burnham v. CJioat et al., Easter Term, 2 Vic. Separate actions against two sure- ties — Release.'^ — 3. Where separate actions are brought against two sureties the discharge of the one does not ope- rate as a discharge of the other. Bur- well v. Edison, Mich. Term, 3 Vic. Cognovit — Tine given to principal xvitlvout sureties' consent.'] — 4. After .^MmsmmmmsBBap — := 372 pnoBAxr and probate couht PROCESS. a cognovit given by the principal and his sureties jointly, the Court will not set aside a iu taincd no award of venire, no jurata, or any day of nisi prius given, and after it had been some days in this state, was withdrawn from the clerk of assize by the plaintiff's attorney and altered, by adding what was necessary without leave — the Court, upon appli. cation in term setting out these facts, set aside the verdict. Jiusscl et ux. V. Graha7n, vii. U. C. R. 159. Record ^tn^l•nrra?lted bt/ previous proceedings — Objection when enter- tained.] — 11. The Court cannot look behind the record, unless where the application is to set aside the record itself. An objection, therefore, to the record as being improperly made up without proceedings to warrant it, can- not be entertained upon an application to set aside the assessment of damages. Gamble et al. v. Rees, vii. U. C. R. 406. Remanet — Repassing and rescal. ing.] — 12. Where the record, after having been made a remanet, had not been repassed or resealed, and was otherwise before the Court in a sloven- ly state, the Court set aside the verdict with costs: they bound themselves, however, to no inflexible rule on the subject of repassing and reseating. Lucas v. Peatman, vii. U. C. R. 20. [See new rules of Hil. Term, 13 Vic, No. xU.] Incorrect nisi pt-ius clause — Ver- dict set aside.] — 13. A verdict was set 'aside on account of there being no proper nisi prius clause in the record. Doe dem. Murphy v. McGuire et al.y vii. U. C. R.312. [Records in ejectment under the new act- See statute 14 & 15 Vic. cb. 114, sec. 6.] RECTOR. See Will, 13. Ejectment for glebe land — Evi- dence.] — In ejectment by a rector for RELKASE. RELIGIOUS SOCIETIES. 379 .'erm, 13 Vic, No. glebe land, he must prove presentation, institution and induction ; and if any one of these be wanting, the action must fail. Doe drm. Creen v. Fries- man, Hil. Term, 4 Vic. REDEMPTION (RIGHT OF). See Execution, 1 1. — Maintenance' (Statute of), 7. — Mortgage, 5, Jo. REFERENCE. I. To Arbitration. See Arbitration and Award, I. II. To Compute. See Attorney, IV. 4. — Bills of Exchange etc., VIII. 6. — Prac- tice, II. 8. REGISTRY AND REGISTRAR. See Deed, III. — Infant, 5. — Mort- gage, 8, 14. — Sheriff's Deed, 5. Ship Registry Act. — Will, 1,2,3. II. Of Causes of Action. See Arbitration and Award, IV (1), 1 ; VIII. 6.— Attorney, III. 9.— Covenant, 11(2), 11.— Eject- ment, VIII. 20. — Judgment, 6. — Nuisance, 3. — Principal and Surety, 3. — Ri i i.f.vix etc., 15. Trespass, I. 21. Witness, 7. Action by assignee of a chose in ac- tion — Fray I lent rdease bij n.ssign- or.l — Where a cho>'o in action has been assigned, and aii iction is brought for the benefit of tho assignee in tiie name of the assignor, the assignor will not be allowed fraudulently to give a release ; and where a release from him, which has been obtained by fraud as against thp assignee, is pleaded, the Court will set the plea aside and or- der that the release shall not be made use of at the trial. Roivand v. Tyler, Mich. Term, 5 Wm. IV. RELEASE. I. Op Estates in Land. II. Of Causes of Action. I. Of Estates in Land. See Deed, III. 13. — Joint Tenancy, 2.— Sheriff's Deed, 2. — Title, 10. Operation.'] — Where a party does not grant all his interest in the land to B., but merely gives up his right, this is a mere release, and to make it good, requires that the releasee should have a previous estate or interest in posses- sion, on which the release could ope- rate. Doe dent. Phelan v. KinneUly, vii. U. C. R. 480. | RELIGIOUS SOCIETIES. See Ejectment, IV(2), 6. — Presby- terian Church, Galt. Deed to a church described in a par- ticular way — Change of its constitu- tion — Ejectment.] — 1. Where real property was given by deed in trust for the Methodist Episcopal Church in Canada, according to the rules adopted by the general annual conference, and that when any of the trustees or their successors should cease to be a mem- ber of that church, that such trustee should vacate his trusteeship ; and at a general conference the majority did away with episcopacy, and having ap- pointed new trustees, claimed the pro- perty from the old trustees on the ground, that as they had not conform- ed to the rules of the general confer- ence they had ceased to be trustees according to the terms ofthe trust deed, and the new trustees took possession »f the property: Held, on ejectment orought by the old trustees, that they S0H 38D REMANCT. KRPLKADER. i :'!■ were entitled to recover, the confer- ence having no power to do away with episcopacy, and the old trustees by continuing in the original church, having complied with the terms of the deed. Doc clem. Trustees Methodist Episcopal CImrch v. Bell, Hil. Term, 7 VVm. IV. [This derision was afterwards reversei in J)oe dem. Reynolds v. Flint, Mich. Term, 4 Vic, and Due dim. Reyiwhh v. Flint, has been sinco upheld in Doc dan M'thodist Episcopal Trustees v. Brass, Trin. Term. 5 & 6 Vie.] Trespass against a trustee ttho had ceased to be a member.^ — 2. Trespass was held to be maintainable by the trustees of a Methodist chapel against a person who was a trustee, but having ceased to be a member of the society could not hold tiie trust under the pro- visions of the deed which created it ; and some of the plaintiflis, who were not the original trustees, but had been elected as their successors uniler the same provisions, were properly joined in the action. Ecc?-ett etal. v. How- ell ct al., Mich. Terw, 1 Vic. Ejectment bt/ trustees i,i a corporate name J — 3. An ejectment cannot be maintained on a demise of a Methodist church, as a corporate body : the de- mise must be in their names as indi- viduals. Doc de?n. Methodist Trtis- tees V. Carivin, Trin. Term, 1 & 2 Vic. REMAINDER (ESTATE IN). See Estate, 5, 9. REMANET. See Judgment as in case op Non- suit, I. 2, 12. — Record (NisiPui- U3, 12. — Writs of Trial etc., 2. Trial bi/ proviso.'] — Afler a cause has been carried down to be tried and made a remanet, the defendant cannot rule the plaintiff to enter the issue, but his proper course is to take the cause down to trial by proviso. Boulton v. Jarms, Mich. Term, 5 Vic, P. C, Jones, J. — ♦— REMITTITUR DAMNA. See Amendment, III. 7, 8. — • — RENDER (BY BAIL). See Arrest, II. ^6. — Bail, I. 4, 5, 6, 7, 8. RENT. See Bond, II. 1.5. — Covenant, 11(1), 6 ; 11(2), 4. — De Injuria, 4. — Dis- TRESS, I. passim. — Landlord and Tenant, I. 9 ; II. 4. — Lease, I. 5, 7; II. 1. — Midland District Turnpike Trust, 2, 3. — Pleading, II. 15. — Replevin etc., passim. — Trespass, II. 24. Apportionment, 1 — Where a tenant leased premises at one entire year and his landlord died, having devised the premises among several persons: Held, that those persons might bring separate actions against the tenant for such part of the rent as each would beentidedto according to his respective share, with- out any other apportionment than a jury might make in each suit. Hare et ux. V. Proudfoot, Hil. Term, 7 Vic. RENT CHARGtE. See Execution, 18. REPLEADER. See District Court, 7. After nonsuit.'] — There can be no repleader where the plaintiff has been nonsuited, and so out of Court. Lount V. Smith, V. U. C. R. 302. [On a judgment of repleader, neither party is entitled to costs. Plummer v. Lee, ii. M. & W. 495.] REPIiEVIN. REPLEVIN. 381 REPLEVIN AND REPLEVIN BOND. See Amendment; II. 21. — District Court, 3, 4, 14. — Judgment as in CASE OF Nonsuit, I. 5. — New Tri- al, V. (J. — Pleading, V. 3. Writ.] — 1. A writ of replevin with the juslicies clause is irregular. Cor- ndl V. Quick, Dra. Rep. 440. Distress for rent — Evidence] — 2. In replevin, under the pleaof non ten- uit to an avowry for rent in arrear, the plaintiff may shew an eviction. Cot- mack V. Bergin, Trin. Term, 7 Wm. IV. Service of summons — Time to de- dare.] — 3. Personal service of the summons in replevin is not necessary ; and after the goods have been reple- vied, if the defendant do not appear, the plaintiff may proceed by notice, under 4 Wm. IV. ch. 7, sec. (i, and he must declare as in other cases within a year after the return of the writ, or he will be out of Court. Za- vitz V. Hoover ct al., Mich. Term, 1 Vic. Issue of non tenuit — Evidence.] — 4. Where in replevin, the landlord avowed for two-and-a-quarter years' rent, but proved a tenancy for only one year, although the tenant continued in possession for three years, having how- ever paid no rent nor made any ac- knowledgment during the last two yeiirs : Held, a fatal variance on the plea of non tenuit. Thompson v. For- syth, Eastei Term, 3 Vic. Plea ofriens in arrear — Deduction for improvements.] — 5. Where it ap- peared that the landlord had covenant- ed to allow the tenant all reasonab' - improvements made by him in the amount of his rent : Held, that ^he tenant could deduct the value of the improvements from the rent due, and the landlord could recover only for the residue ; and that such right of reduc- tion might be given in evidence under the plea of riens in arrear, and need not be specially pleaded. Wilcoxson V. Palmer, Trin. Term, 3 & 4 Vic. [Also, see cases 8 and 9, infra.] Form of declaration on bond.] — 6. In a declaration by the assignee of a replevin bond, it is bad on general de- murrer to declare in the form used in England, with an averment of a plaint made to the sheriff. Htiit v. Keith, i. U.C.R.478. Parties to bondf^oing to arbitration release the surety.] — 7. Where, after proceedings have been commenced on a replevin bond, the parties to the re- plevin go to arbitration without the assent of the surety, all further pro- ceedings against the surety will be stayed : Alitcr, where the reference to arbitration takes place with his assent. Hutt v. GiUeland, and Hiitt V. Keith, i. U. C. R. 540. Riens in arrear — Deduction for improvements.] — 8. To an avowry under a distress for rent, the plaintiff replied riens in arrear, and also set out specially an agreement to be allowed to make certain repairs and to deduct the amount from the rent which he averred he had done ; this answer to the avowry is good, under either of the above pleas. Wheeler v. Shne et al., iii. U. C. R. 143. Agreement to allow deduction from, rent, for improvements ^-c] — 9. A landlord agreed with his tenant that if he should not paint the tavern outside, and the sheds and driving house, &c. in 1843, the tenant might do it in 1S44, and charge it against the rent of 1845. The landlord did not paint ; the tenant only began to point in June 1S45, du- ring which month he painted one side and two ends of the tavern, but had not finished painting any of the build- ings on the 12th of July 1845, when the landlord distrained for a quarter's rent due on the 1st of July 1845 : Held, in an action of replevin, that under the terms of the lease with re- spect to the painting, the landlord i might distrain for the quarter's rent ^" 382 REPLEVIN. mm / due on the Ist of July 1845, though the painting which had been then be- gun but not completed, exceeded the quarter's rent for which the landlord had distrained. Millminc v. JIa7t, iv. U. C. R. 525. Amendment of defendants avoiv- ryJ] — 10. Where there have been two leases between the plaintiff and the defendant in replevin, and the de- fendant avows under the wrong one, the Court will allow him to amend at the trial, if the amendment cannot be shewn to prejudice the plaintiff. Ed- wards v. Holmes, iv. U. C. R. 94. 11. Queere: Can the action of re- plevin be sustained in any Court at the present time upon a mere tortious taking or detention not in the nature of a distress ? Foster v. Miller, v. U. C. R. 509. [See statute 14 & 15 Vic. ch. 64, sec. I.] Nil habuit replied by a stt-anger."] — 12. A stranger, whose goods have beea seized on the premises of a te- nant and distrained for rent, cannot, any more than the tenant himself, question the landlord's right to demise. Smith V. Aubrey, vii. U. C. R. 90. Denial of landlord's title at time of demiseJ] — 13. Any plea to an avowry involving a denial of the landlord's title at the time of the demise is bad. Hart- ley et al. V. Jarvis, vii. U. C. R. 545. Forfeiture of bondJ] — 14. The Court will not determine summarily whether a replevin bond has been for- feited or not. Hoover ct al. v. Zavitz, Trin. Term, 1 & 2 Vic. Several Migors — Release of one — Its effect."] — 15. A release by plaintiff to one of several obligors in a replevin bond to the sheriff, aAer an assignment to the plaintiff, releases all ; and re- leasing the sureties, the plaintiff has no right of action against the sheriff for taking insufficient sureties. Kir- kendall v. TItomas, vii. U. C. R. 30. [See statute 14 & 15 Vic. ch. 64, intituled " An Act to amend and extend the law rela- ting to the remedy by replevin in Upper Cuuub."] REVENUE. REQUEST. See Arrest, I. 11, 12, 13, 14, 31.— Common Schools, 4. — District Council, 10. — Money Paid, 5.— Pleading, II. 17; VIII. 2. Averment of, ichcn necessary.] — 1. Where no time is limited for the doing of an act, it must be done in a reason- able time, and a special request must be averred, but the omission of it is immaterial after verdict. Daily v. Stevenson, Easter Term, 2 Vic. Omission — How taken advantage of.] — 2. The omission of an averment of a special request is matter of form, and cannot be objected to on general demurrer. McLeod v. Jackson, Mich. Term, 7 Wm. IV. REQUESTS (COURT OF). See Bailiff, 3, — Division Court. RE-REGISTRY. See Deed, II. 16. RESIDENCE. See Abatement, 1,3.8. — Abscond- ing Debtor, 8. — Arrest, 1. 31. — Security for Costs. RESTITUTION. See Forcible Entry etc., 1, 2. RETURN OF WRITS. See Amendment, I. 8. — False Re- turn. — Fieri Facias, 9. — Sher- iff, I. 1, 12, 16, 17 ; II. passim. REVENUE. See Customs Acts. In debts due to the Crown, which would be cognizable in the Court of E. REVENOG LAWS. RIDEAU CANAL. 383 iT. 2, 13, 14, 31.— 4>, — District NEY Paid, 5.— VIII. 2. necessary. "] — 1. led lor the doing one in a reason- al request must mission of it is Jict. Daily v. m,2 Vic. ken advantage of an averment matter of form, d to on general Jackson, Mich. )URT OF). lvision Court. TRY. II. 16. rcE. t.8. — Abscond- ^RREST, 1.31. — ITS. noN. RY ETC., 1, 2. WRITS. 8. — False Re- mas, 9. — Sher- 7 ; II. passim. UE. 3 Acts. e Crown, which in the Court of Exchequer in England, this Court may | statute. give relief, when it appears that in law, gina v reason, or good conscience, the debtor ought not to be charged. Regina v. Bonter, Mich. TermJ^T Vic. REVENUE LAWS. See Customs Acts, (of which this is a continuation). | Action for seizure of goods by an unatithorized person — Notice.^ — 8. A seizure of goods for a breach of the i revenue laws by a person who is not an authorized officer of the customs at the time, but whose act is subsequently ■ adopted and sanctioned by the collec- tor of customs for the part of the, country where the seizure is made, is ; so far protected by the statutes relating to the customs as to entitle the per- son seizing to the notice of action, &;c., required by those statutes. Wads- toorth V. Murphy, ii. U. C. R. 120. Forfeited goods token condemned."] — 9. Where goods are seized for what appears to be a direct violation of the revenue laws relating to the customs, by which they become forfeited, they are absolutely condemned at the end of thirty days, if no claim is properly made for them, according to the impe- rial statute 4 & 5 Wm. IV. ch. 89, sec. 25 ; and after such condemnation for default of such claim, the owner cannot bring trespass for any alleged illegality in the seizure. lb. Information for a penalty — Scien- ter a prefer question for the jury — Requisites of ittformatton.] — 10. In an information for a penalty under the customs acts, for knowingly harboring smuggled goods, the scienter is a pro- per question for the jury ; and in such an information, the particular illegal act, as that the goods were imported without the payment of duty, &c., should be specified, and the informa- tion should expressly shew that the offence charged to have been commit- ted was contrary to *he form of the Regina v. Aumond, and Re- Easton, ii. U. C. R. 166. Recovery of second penalty ] — 11. If a quantity of smuggled goods be pur- chased at one time, but seizures of them are made at different times, only one penalty for harboring them can be recovered, lb. [It was designed that lh« above cases should have bi?en placed under the title " Customs Acts," but bein<; from some mistake omitted, they are introduced here merely as a continu- ation of that title.] REVERSION AND REVERSION- ERS. See Action, 2. — Estate, 6. — Exe- cution, 22. — Highway, 7, 8, 9. — Nuisance, 2, 3. REVIEW (COURT OF). See Insolvent etc., 24. — Prohibi- tion, 1. REVOCATION. I. Of Agent's Authority. See Auction etc., 4. — Principal AND Agent, 2, 4. II. Op Wills. See Title, 9.— Will, 12. RIDEAU CANAL. See Crown Grant, 10, 11. Defence under the act — What ne- cessary to be sheion.] — 1. If a defen- dant rest his defence on his acting un- ' der the Rideau Canal Act, he should I be prepared to prove that the act he justifies was regularly done under the statute, and not rely merely on his be- ing employed in the construction of the canal. Phillips v. Redpath et al.f Dra. Rep. 72. Quarrying stone — Rights of con- tractor.'] — 2. A contractor or work- man entering upon land to quarry stone ■SPHRM 384 RULE TO COMPUTE. SCHOOL TRUSTEES. , III iili ; i! il'll ■ i!i under the Rideau Canal Act, gains no property in the stone by severing it from the freehold : when it is quarried it belongs to the Crown, or if the Crown do not take it, to the owner of the land, and therefore an assignment by the workman who quarried the stone is void. Mittlcbcrger v. Bij, ii. 0. S. 345. Trover for detaining lumber.'] — 3. Trover lies against a lock keeper on the Rideau Canal for not delivering up lumber seized and detained by him under the provisions of tlio Rideau Canal Act. (8 Geo. IV. ch. 1,) for ob- structing the navigation, on a tender of the charges occasioned by such seizure and the removal of (he obstruction. Gould V. Jones, iii. 0. S. 53. RIENS IN ARREAR. See Replevin etc., 5, 8. RIGHT OF REDEMPTION. Sec Execution, 11. — Maintenance (Statute of), 7.-Mortgage, 5, 13. RIGHT OF WAY. See Easement, 1. — Highway. RIGHT TO BEGIN. See Appeal, 3. — Onus Phobandi. -« — RULE FOR JUDGMENT. See Ejectment, II. 3, 4. — Judg. MENT, 16, 17. RULE OR SUMMONS TO COM- PUTE. See Attorney, IV. 4. — Practick, II. 8. RULE TO DISCONTINUE. See Practice, II. 40. RULE TO PLEAD. See Information, S. RULES, ORDERS AND SUM- MONSES. See Practice, II. SALE. See Auction and Auctioneer. — Bought AND Sold Notes. — Horse. Sheriff's Sale. — Sunday, 2. — Taxes, passim. SALE OF OFFICES. See Bond, I. 11. SALTFLEET. See BiNBRooK. SATISFACTION. Sec Interest, 1. Cross verdicts.'] — A. being in exe- cution at the suit of B., recovered against B. a verdict for a smaller sum: Held, tliat proceedings in A.'s action against B. should be stayed on B.'s acknowledging satisfaction on his judg- ment for the amount of A.'s verdict against him. Bethune v. Brown, Mich. Term, 7 Wm. IV. !i SCHOOL ASSESSMENT. See Division Court, 1. — * — SCHOOL TRUSTEES. See CoMMoii Schools. ^rm SCIRE FACIAS. SEAL. 386 SCIKE FACIAS. See Amendment, III. 13. — Bail, II. )f A.'s verdict 9, _ BoNu, ETC., III. 2. II. 17. — Executor Against an heir.'] — 1. A scire fa- cias will not issue against an heir under the provisions of the 5th Geo. 11., ahhough an execution may have issued against the goods and chattels in the hands of the administrator, and a re- turn of nulla bona has been made. Paterson v. JSTlunj, Tay. U. C. R. 47. Irregular judgment on set. fa. — Sheri/Ps deed.'] — 2. A judgment on sci. fa. against B., the heir of the de- ceased owner of tlie land, and a fi. fa. thereon, awarding the sale of lands of which the deceased was seized on a specified day, previous to which he had died, will not sustain a purchase and a sherill''s deed under such judgment, and the fi. fa. gives no title. Varey V. Muir/iead, Dra. Rep. 4'98. Administrator not allowed to revive a judgment pending an appeal to the King in Council.] — 3. An adminis- trator will not be allowed to revive a judgment in favor of his intestate, pending an appeal to the Court of the Governor in council, or the King and privy council, in the original action, although it be proved by atlidavit that the plaintiff in whose favor judgment was given in the Court below, died after judgment, and before the allow- ance of the appeal to the King in council, though after the allowance of that to the Governor and council. Was)d)um v. Powell, ii. 0. S. 463. Execution issued on a judgment more than a year old, tvitliout a sci. /a.] — 4. The Court refused to set aside upon motion a ca. sa. which had been issued upon a judgment more than a year old, no sci. fa. having is- sued to revive it, although it was held that the ca. sa. was clearly irregular, yet not void, but voidable, and that the proper remedy would seem to be a 3 c writ of error. McNally v. Stevens, Tay. U. C. R. 355. 5. If a judgment be more than a year old it is irregular to issue an exe- cution upon it without a scire facias, even though a writ of fieri facias has been issued, but not returned and filed within the year. Sewell v. Tlwmp' son, Easter Term, 2 Vic, and Wilson V. Jamieson, Easter Term, 7 Vic. Stay of proceedings on a sci. fa. against a surety.] — 6. The Court stayed proceedings on a sci. fa., on a bond to the Queen, against a surety for the due performance of the duties of a post office by a deputy post-master, to recover a large sum of money which he liad not accounted for, where it appeared that the deputy post-master was in good circumstances when the default was made, and the deputy post- master general had at that time taken security from him for the amount without the knowledge or consent of the surety, who was not informed of the circumstance until three years after, when the deputy post-master had be- come insolvent, the scire facias having been issued also for the benefit of the deputy post-master general, who had taken the security from the defaulter to reimburse him for the amount of the defalcation which he had paid, his se- curities having turned out unproductive in part. Regina v. Banter , Mich. Term, 7 Vic. « SCOTLAND. See Absconding Debtor, 23. SEA. See Crown Grant, 9. SEAL. See Bo^D, II. 9. — Corporation, 10, 11. — Foreign Courts. — Foreign Judgment, 2. — Oyer.— Process, . 9. — Warrant, 2. VV',^ '■ 386 BEOUCTION. fiEDUCTIOIf. : H !i ■ 1 ' 1 i A circular flourish with (he word "seal" inscribed, is not a legal f^eal. Naslc V. Kihs, Tay. U. C. R. 364.. [As (o whal is or is not a seal, see the case of 'I'lie Queen v. The InhahitanU of St. Pauls, Covent Garden,! Q. li. 232, where the imiMfjsion was made in ink with a wooiien block in the usual place of the seal; also, a very recent case in our own Court of Queen's JJeiich— ihatof X)(«mWso7» V. Clement, decided in Mich. Term, 15 Vic, but not yet reported.] SECURITY FOR COSTS. See Waiver, 1. — Witness, 10. Plaint iff a j)riso}ic>\] — 1 . Where a defcndaiil applied for security for costs, by aifidavit dated 22nd May, and one of the plaintitTs depo.sed in an aindavit on 31st June that he was resident at Kingston, where in fact he was in iraol, the Court ordered secu- rity. Intstnble ct al. v. Moicatt, Tay. U. C.R.677. Allifl(irit.']—2. Where the plaintiff has left the province, the affidavit re- quiring security for costs should state that he has become a stationary resi- dent in a foreign jurisdiction. Mickle- j'ohn ct al, v. Holmes, Tay. U. C. R. 43. Appearance to sustain motion.'] — 3. Tile defendant's^ attorney entering common bail, is a good appearance to sustain a motion ior security for costs. Gmce V. Mcighan, Dra. Rep. 196. IMilitai-y officer out of Ca7tada.'\ — 4«. A military oflicer on duty out of Canada and suing as plaintiff, must, upon the usual affidavit, give security for costs. Tripp v. Fraser, i. U. C. R. 253. SEDUCTION. See New Trial, II. 10 ; IV. 6, 13, 14. ; VIII. 16. Form of action.'] — 1. Trespasser case will lie for seduction. Cavanv. Walsh, Mich. Term, 1 Wm. IV. [Ace. Chamberlain v. Haslewood, v. M. & W. S15. If a rape, no action for seduction mlllie.] — 2. An action lor seduction will not lie, where the defendant has had connexion with the seduced against her will, (Macaulay, J., doubting wheth- er the evidence in this case |)roved a rape or not). Vincent v. iiprague, lii. U. C. R. 283. 3. Whenever, in a civil action for seduction, it turns out upon the trial that the act complained of was not merely a trespass, but, as in the last case, a felony, the learned judge must direct an acquittal: He I, however, that in this case, the c Jence being considered un.satisfactory, the learned judge was justified in not directing a verdict for the defendant. Brown v. Dalby, vii. U. C. R. 160. Rape — Subsequent connexion — Right of action.] — 4. Case for seduc- s tion will lie to recover damages arising from subsequent connexion, though the evidence strongly tend to shew that the defendant had in the first instance committed a rape on the girl. Hayle v. Hayle, iii. O. S. 295. Affidavit under the stattitc, ivhen necessary.] — 5. In an action !)y a fath- er for the seduction of his daughter while she was living with a t!>'- ' rr son, it is not neccs,sarj- i<> (,• - • i ;«' an allidavit of the seduction uy ' v .ie. fendant was made by thfl <' aler, and filed according to 7 Wm, i »' . ch. 8, sec. 4. Gill v. Browti, Easter Term, 4 Vic. Action under 7 Wm. IV. ch. 8 — Averment of action being brought under the statute.] — 6. In an action on the case by a father for the seduc- tion of his daughter, who was not living with him at the time of the seduction, it is not neces.sary, under the provin- cial statute 7 Wm. 4, ch. 8, which says that in such a case service by llie daughter will be presumed, to aver in the declaration that the action is brought under that statute. MPLain v. Ain&- lie, Mich. Term, 6 Vic. I for seduction I (or seduction (Iflendant has educed against Duliiiiijrwheth- case |)roved a V. Sprague, nil action for pon the trial of was not s in the last d judge must /, liowever, Jeiice being y, the learned lot directing a it. Brown v. 0. connexion—' Jase for seduc- aniages arising )xion, though id to shew that b first instance 3 girl. Hayk statute, iclien [•lion by a fath- his dyiighter Ih a ;•>;.. ; ,... ion f>y •■ - ,i,.;. tlK" <■ ,iler, Wm. . ,' , ch. 'rown, Easter . IV. ch. 8~ 'ring brought In an action for the seduc- was not living the seduction, r the provin- h. 8, which lervice by l lie ed, to aver in tion is brought Min V. Ains- SEDUCTIOV. Right of father to sue."] — 7. The father of an illegitimate daughter can- not, under our statute 7 Wm. IV. ch. S, bring an action for seduction merely on the ground of being her father. Biggs V. JJur?iham, i. U. C. R. 166. Jlight of master to stic] — 8. The statute 7 VVm. IV. ch. S, restrains the master of an unmarried female from suing for her seduction, until six months have elapsed from the birth ofthe child, and it be first seen whether the father or mother of the lemale within that time (not having abandoned her before her seduction) intend bringing the ac- tion. Whitfield V. Tocld, i. U. C. R. 223. [The right of a master to sue for the seduc- tion of a servant does not pass to the master's assignees on his bankruptcy. Howard v. Crmlher, viii. M. ^ W. 601. J / Right of mother.'] — 9. The mother of an illegitimate daughter may main- tain an action for her seduction. Muckleroy v. Burnhutn, i. U. C. R. 351. Action by parent before birth,tvhcn seduced living with a stra?tgcr.] — 10. Under the provincial statute 7 Wm. IV. ch. 8, seduction followed by preg- nancy, entitles the parent, even before the birth of the child, and to the exclu- sion of any other party, to maintain an action, although the daughter had from tender years been living in the family of a stranger, and continued there to reside up to the time of bring- ing the action. (Draper, J., dissen- tiente). L''Esperance v. JDuchcne, vii. U. C. R. 119. Plea, leave and license of daugli- ter.l — 11. The plaintifl" declared in trespass in the first count, complaining of breaking and entering his close and debauching of his daughter only, and the defendant pleaded to each count as to all but the force and arms, &;c., the leave and license of the daughter — the pleas were held bad on demurrer. Ross v, Mcrritt, ii. U. C. R. 421. Evidence to contradict statements of party seduced.'] — 12. In an action 8CRVICF. OF PAPERS. 387 for seduction, where the female seduced has denied on her examination that she had criminal intercourse with oth- ers besides the defendant, the defen- dant can only be allowed to shew in answer to that that to the knowledge of his witnesses that statement \va3 not true ; he cannot be permitted to ask them whether they themselves had connexion with her. McMahon v. Skinner, ii. U. C. R. 272. Proof of defendant being father of child requisite.] — 13. To sustain an action on the case for seduction, stating the debauching of the plaintiff's daughter and servant, whereby she be- came pregnant, and laying consequen- tial damages for loss of service, the plaintiff must prove tlie defendant to have been father of the child, mere proof of seduction by the defendant will not be sufficient. Kimball v. Smitk, V. U. C. R. 32. SEIZIN IN FEE. See Covenant, I. \,Q) 11(2), 3, 12. Estoppel, 5. — Execution, li.— Heir, 5. SENTENCE. See Criminal Law, 4. SERVICE OF PAPERS. Sec Appearance, 1. — Attorney, IV. 4. — Canada Company. — Ejectment, III. — Irpeg clarity, 2, 9, 15, 18. — Judgment as in case OF Nonsuit, IV. 2. — New Trial, VI. 2. — Notice of Action, 13. — Notice of Assessment, 1. — No- tice OP Trial, 3, 10, 11, 15. — No- tice to Produce, 2, 3, 5, 6. — Practice, I. 1,8,23; II. 8j III. 6, 7, 10. — Process, passim. — Re- plevin btc.,3.-Tbstatum Act, 1 . 888 SET OVV. RET ore. llWir SET OFF. See Arbitration and Award, VI (2), 15. — Auction etc., 6. — Bond, II. 2.— Costs, IV(1), 2, 4 ; VIII. 4. — De Injuria, 1. — District Court, 6. — Dower, III. 6. — Es- toppel, 9. — Practice, I. 32. — Satisfaction. Set off of a sum paid to a third party after action brought.'] — 1. Where after declaration filed and pleas of general issue and set off pleaded, the plaintiff agreed with the defendant that if the defendant would pay a de- mand on a note in favor of a third party, the plaintiff would allow it in the action against the defendant, and the defendant did pay it, and such pay- ment, with the other items of set off, overbalanced the plaintiff 's account: Held, that the settlement of the de- mand against the plaintiff by the defen- dant was a payment, and could not be treated as a set off, having been made after action brought ; and that, as with- out it the plaintiff's claim was the larger, he was entitled to a verdict with nominal damages. Shcncoodv. Camp- bell, Hil. Term, 6 Wm. IV. [See case 12, infra.] Notice of, when to be given.'] — 2. A notice of set off cannot be given before the plea of the general issue is filed. Bickerstaff V. MercJiant, Hil. Term, 2 Vic. Set of of Judgments.] — 3. A judg- ment obtained by a principal cannot be set off against a judgment obtained by his debtor against one of his sure- ties. Gray V. Smil/t, Hil. Term, 2 Vic. Declaring; sn as to deprive the de- right.] — 5. Where in an action by an executrix against a sheriff for money had and received to her use as execu- trix on a writ of fieri facias against one D., which when produced recited a recovery by the plaintiff executrix against D. for not performing certain promises and undertakings made to the plaintiff and for her cosf.s \'c.,and the defendant oflered to give in evi- dence a set off against the plaintiff in her own right : Held, that it was inad- missible, the plaintift' claiming in her representative character, although the writ of fieri facias was inlbrmally worded. Devlin v. Jarvis, Easter Term, 3 Vic. [Also see case 11, infra.] Flea of a less sum than claimed, averring it to he greater.] — 6. Wliere to a declaration in assumpsit claiming •lOO^. on counts for gopds sold die, the defendant pleaded as to the pro- mise and undertakings a set off of a less sum than the amount alleged to be due from him to the plaintiffs, ami averred that his set off' exceeded the monies due and owing from him to the plaintiffs, and offered to set off and al- low the plaintiffs, out of the defendant's damages,so much damage as the plain- tiffs had sustained on occasion of the not performing the promises &c. in the declaration : Held, bad on special demurrer, for not offering to deduct the defendant's set off instead of pleading it in bar. Jarvis ct al. v. Dickson, Trin. Term, 3 & 4- Vic. Siibsequcnt action for subject mat- ter of set off' in a previous action.] — 7. Where two masons brought an ac tion for work and labor against their fendutit of a set of.]— 4. A plaintiff | employer and recovered a verdict for cannot, by declaring specially, where he could recover on the money counts alone, deprive the defendant of his right of set off. Miller v. Munro, Mich. Term, 3 Vic. Action by executrix against a sheriff^ -■—Set off against her in her own 601., it was held that the employer could not afterwards bring an action against them for money he had paid them on account, and which he had attempted to prove on the forntjer ac« tion. Hunt v. WCarthy et al., Trin. Term, 5 & 6 Vic. HIST OFF. SET OFF. ?89 Promissory note not due till after service of the icrit.l — 8. A promissory note made by the plaintiff to the de- fendant, falling due after the service of tiiC plaiiitifl's writ, but before declara- tion filed, may be set off in the action. Thome v. Haight, Hil. Term,() Vic. Verdict against several defendants —Set off against iilrintijf l>y one of theni^ — 9. One of several dolendanls in a cause, against all of whom a ver- dict had been recovered, was allowed, on a summary a])pIication ailer judg- ment, to set off the amount of a judg- ment which he had recovered against the plaintiff against the plaintiff's judgment against him and his co-de- fendants, saving to the attorney his lien for costs. Fortune v. Hickson ct aL, i. U. C. R. 408. Action on note — Set off for goods sold on a contract out of which note arose.] — 10. To an action on a pro- missory note the defendant pleads a set off for goods sold and delivered, but evidence at the trial shews that the set off is confined to the special contract for the sale and delivery of goods out of which the note had arjsen: Held, that the goods so delivered could not form the subject matter of a set off, but that the plaintiff ought to have been sued on his special undertaking. Mathctvson v. Carman (Daniel), i. U. C. R. 266. Action against an executor — Set off of an individual debt.} — 11. To an action of assumpsit on the common counts against an executor on his tes- tator's promise, defendant pleads a set off due to him from the plaintiff for goods sold and money paid by the de- fendant, as executor of the testator, to the plaintiff. The plea is bad — the defendant attempting to set off an indi- vidual debt against a demand due from him in his capacity of executor. Gra- cey V. Wilson, i. U. C. R. 237. Payments to third parties at plain- tiff h request, a set off J]— 12. Where a defendant pays for plaintiff orders in favor of third parties, such payments may be given in evidence as items under a set off, and need not, in order totheiradmission in evidence, be plead- ed as payments on account. McLel- lan v. McMamis, i. U. C. R. 271. Irregularity in delivery ofj)articii- lars — Waiver. 1 — 13. Wlierc a defen. daiit delivers his particulars of set off on a day later than that appointed by judge's order, and the plaintiff's attor- ney (through his derli), accepts the particulars, keeps possession of them, and gives no notice of his refusing to receive them as not in time, such con- duct is a waiver of all objections on the ground of delay to the defendant's right to go into evidence of his set off. lb. Action wider 5 Wm. IV. eh. 1 — Set off' of scimratc debt of j)laintiff.'\ —^W. If the holder of a promissory note sue the maker and indorser in a joint action, under 5 Wm. IV, ch. 1, the separate debt of the plaintiff to the ma- ker or indorser cannot be set off under a joint plea of set off. Paterson v. Howison ct al. ii. U. C. R. 139. Admissibility of evidence voider plea o/,] — 15. In an action ofassump. sit for work and labor, &c., the defen- dant pleaded a set off for money had and received, «!cc., and at the trial at- tempted to give in evidence the receipt of money by the plaintiff for him, which it was shewn was received according to the condition of a bond, upon which the defendant had commenced an ac- tion against the plaintiff: Held, that such evidence was not admissible to establish the plea. Denison v. Don- nelly, li. U. U. R. 391. Action by 'auctioneer — Set off as betivecn purchaser and the party for tvhom auctioneer sold.] — 16. To an action by an auctioneer against a pur- chaser for goods sold, the purchaser pleaded that A. delivered the goods to the auctioneer to sell ; that A. was the (.i 390 HEVERAL PLEAS. SHERIFF. i ill agent of B., to whom the goods belong- ed, and that lie (the purchaser), had a set olVagJiiiifit li., which lie j)leaded. Qiiecfc: Could the purchaser plead this set otT against B., without further al- leging that the auctioneer sold these goods to him as the auctioneer of B.? (Robinson, C. J., was of opinion that he could not. — Jones, J., contra. — Ma- canlay, J., and McLean, .T., gave no opinion on tliis point, as the decision of the Court upon the other points deci- ded the demurrer in the plainti(l''s favor). Wahcfidd v. Gorric, v. U. C. R. 160. Set off on spcdttl agfr.'ment.'] — 17. Declaration on the common counts. — Plea, a set oil" on the common counts, and also upon a si)ecial agreement under seal, to give the defendant so much per cord for cutting wood, and alleging that so many cords of wood had been cut : Jlchl, to that part of the plea of set olf relating to the spe- cial agreement, that tiic plea was good. Geddes v. McCrackcn, v. U. C. R. 573. Order for dclivrry of particulars — Rejection of evidence. '\ — 18. Where the defendant had been ordered to de- liver particulars of any credit claimed by him by the 17th September, and he did not deliver them until the 26th of | September: Held, that he was re- strained by such order from putting in evidence a letter from plaintiff, admit- ting a set off in the shape of money re- ceived to the defendant's use. Camj)- bell V. Gzouski, vii. U. C. R. 412. SEVERAL COUNTS. See Practice, I. 17. SEVERAL PLEAS. See Bono, IL 2.— -Practice,!. 17,25. SHERIFF. See Dkputy Sheriffs. I. Duties, Rights andLiadiuties. II. Attachmkxts. III. Actions against SiiERirr. IV. AcTioNf BY Sheriff. V. Actions against, and Liabiu- I TY OF, Sureties. VL Fees. I. Duties, Rights and Liabilities. See Amendment, I. 8. — Bail, I, 8. Bankrupt etc., 7 Bond, I. S, 11. Distress, 1. 15. — District Court, 8. — Escape, passim. — False Im- prisonment, S. — Falsk Return, 1, 7, 8, 9, 10, 12.— Indemnity Bond, 2, 3, 13, It. — Inteuplea- UER. — Leave and License, 1, — Sheriff's Sale, 19. Duty upon tcrils of execution after lev?/,'] — 1. It is the duty of a sheriff who levies money under a fi. fa. to pay it over to the party entitled thereto; i he cannot return the writ to the Crown ! office and pay the money into the hands of the clerk of the Crown, and thereby discharge himself from liability to the plaintifl' in the original suit. Shutcr et al, v. Leonard, iii. 0. S. 314. [See div. II. 10, infra.] Duty in arresting on ca. res,"] — 2. Where a ca. re. is delivered to the sheriff he is bound to proceed with due diligence in the arrest of the party. O Connor v. Hamilton, iv. U. C. R. 243. Dicty after attempting to arrest and failure.'] — 3. Where the sheriff has once attempted to make an arrest and failed, he is not bound to make anoth- er attempt, unless when he has ex- press notice where the debtor is. Rig- ney v. Ruttan, Hil. Term, 2 Vic. Seizure under Absconding Dchtor''s Act — 'Whenatre^passer.1---4. Where rm 8HEKIKF. SHERIFF. S91 iND Liabilities. ?i, iv. U. C. E. A. being indebted to B. and C, and be- in" insolvent was about to leave the co°iniry, but desired to secure to B. the debt hi- owoii liini, and instructed his a notice which will bind the sheriff in executing the writ. SeniUc, that the dull »d of the clerk to wlioni the notice ,vas given, and the whole cir- cum;Hances of the case, must be con- sidered in determining, under the notice, the liability of the sheritl'. CNeilt v. Hamilton, iv. U. C. H. :]y4. Incmimtcnt notices.'] — 9. If the plaintin''s attorney give at diflerent times two wholly inconsistent notices was not coinplulo until his assent \yasj,„ ^1,^ sherifl— ScwWf. that the sheriff received, and that the sheriff having, j^, j„,t bound to obey eitlier the one or sei'/t'd tin- uooils befuro .such •I'^sent, I ^|jg j,^i,pp^ /^^ clerk to thai ellect, wlu) after A.'s de- parture iniule an assignment of his goods to B. without B.'s knowledge or consent, and before B.'s consent was received the goods were sei/ed by a slierilf on .i;i ntlnchnuMit issued at the suit of C: Ifrld. that the sale to B. could not be treated as a trespasser. Barrett v. liajtcljc, iv. 0. S. 17.'), Execution aaainst partners, one a bankrupt.] — 10. Qiuivr : What course Sale of ilrfniddiiCs soods on /«'S| is the sheritV to pursue upon an execu- oir>i pre I/I ises, a trespass.] — f). Asher-|tion against the goods of one of two iff is a trespasser, if after the seizure partners, imder exponas, has no right to enter land and sell his goods of a dete-ndant's personal property under an execution, be enters upon his premises and sells the j)roperty there. McMiirtiii v. Foucll ct uL, Easter Term, 3 Vic. C. A sheritf, under a writ of vendi- tioni upon a person's there by public auction ; and a pur- chaser who enters at the same time as tiie sheritl" is a trespasser as well as the slieritr. McMartin v. BIcPhcrson, Mich. Term, 3 Vic. Atlachnioit for contempt — When slicri/J' Ditnj take hail to the limits.] — 7. HemUe: That befiu'e the return of a writ of attachment for contempt the sherilV cannot properly take bail for the appearance of a party, without the order of a judge ; but after the return, if the party be upon attachment mere- ly to compel the payment of money, the sheriir as of course may take bail to the limits. Lane v. Kingsmill, vi. U. C. R. 579. Notice to clerk-Liahility of sheriff.] — 8. A plaintiff's attorney giving no- tice to a sherilf's clerk that A. and B. are jointly interested in certain goods, and pointing to a deed in his posses- sion, which he says shews the joint interest of the parties,is not necessarily the circumstances of one being a bankriipt and tlio other not? lb. Sale of lands hf old sheriff after new sheriff in office.] — '1. Qiiare: Under what circumstances the old sheriff or his deputy may jiroceed to sell lands which had been advertized under a writ of fi. fa. belbre the new sheriff came into otiice. — Sec Camp- bell V. Clench, i. U. C. R. 267. Return of writ by deputy.] — 12. The sheriff is bound by the return to a writ of fi. fa. made in his name by a person who, though deputy sheriff at the time he signed the sherill's name to the return,was not deputy until after the time when the writ was returna- ble. Baby V. Foptt, i v. U. C . R. 34.9. Amendmettt of return to tcrit after action brought for escajK — H01.0 dier- iff may be relieved.] — 13. After an action has been brought against a sher- ifl" for an escape in execution, he will not be allowed to amend his return to the writ on which the debtor was in custody when the escape was made, by shewing that he was privileged I'rom arrest, so as to oblige the plaintiff to bave recourse to the original defen- dant ; but the Court will direct that the plaintiff shall assign the original judg- ment to the sheriff, so that he may -33PWW 392 ^HURIFf. SHERIFF. m Si proceed in the plaintiff's name, first 'ndcinnityin;r|ii[n iigninst damages and costs in i'i>ii.sL'({U('iico ot' the assii,'ii- niont. ILrvrif v. Skcnvnoil, Triii. Term. 3 & 4- Vic. Adverse claims— Right to indem- nity. 1 — I'i. A slieriir, \vlienev(M' there is uii ailversf elaim to goods as i)etvveen the execution debtor and a thiril party, may take an indenmity bond from either one or the otiier, or both the parties. Thomas v. Johnston ct aL, iv. U. C. K. 110. Liability on informal com mitmcnts directed to i^aoler.'] — 15. Semblc: That a sherilV is not liable in trespass on commitments by magistrates direct- ed to the gaoler ihat turn out to be in- formal and insuliicient, unless he has become in some way a ])ariy to the imprisonment. Feruiissuu v. Adams ctal.,v.\J.C.I{. 194. How far sheriff' bound by his re. turnl\ — It). As a general rule, the sheiitV is bound by his return to a writ of fi. til., but not in all cases ; he would not be bound by it, for instance, when a verdict has passed against him on such return and shewn it incorrect. Houlditch V. Corbctt, vl. U. C. R. 549. Lia/jility for not rcturnins; a writ of fi. fa. till ruled to do so.] — 17. The Court will not fix a sherilf with the debt merely because he has not returned a writ of fi. fa. until after he has been ruled to do so. The plain- tiff in execution will be left to his remedy by action against the sheriff. Regina v, Jarvis, vi. U. C. R. 558. In contempt for not briitging in the body— Relief.']— I'i. The Court relieved a sheriff on payment of costs, bail being perfected, where he was in contempt for not bringing in the body, although a trial had been lost, it ap- pearing that the sheriff was not in de- fault for the loss of such trial, and it being sworn that the application was made solely on his behalf. Ward v. Skinnevy iii. O. S. 235. discharge of prisotier — Plea, per- fecting of special bail.] — 19. A sher- iff cannot justify discharging a prisoner from custody surrendered to him liy the bail before the return of the writ, by pleading the perfecting of spe- cial bail, without shewing at the same time that the |)laintiff had notice of the special bail and of their justification. S/iouldicc V. Fraser, vii. U. C. R. 60. Right to retain monies viadc on plaintiJPs execution, to stUisfy a claim of his au-n.] — 20. A sheriif will not be allowed to retain money which he has made on an execution, on the ground that he has himself a claim for the amount retained against the plain- tiff who has absconded, when the plaintiff's atlinney is the person enti- tled to receive it in consequence of advances made to the plaintiff. JhtrH' ham v. Planners, ii. U. C. R. 94. Right to question the 2}firty^s title from u-hom the g(H)ds taken.'] — 21. A sheriff who has wrongfully seized goods in execution, cannot call in question the right of the party from whose pos- session the property ivas taken by him, as that it was received under an assign- ment fraudulent as against creditors. Cook V. Jariis, iv. 0. S. 250. 21 Jac. I. ch. 12.]— 22. The 21 Jac. I. ch. 12, extends its privileges to sheriffs when acting under the com- mands of the justices. Fraser v. D/cA- sort, v. U. C.R. 231. 24. Geo. II. ch. 24.]— 23. Semhle: That the sheriff, though a superior oflicer to the gaoler, comes equally within the benefit of the 21 Geo. II. ch. 24. Fcrgusson v. Adams et aL, v. U. C. R. 194. If. Attachment. See Bail, III. 5. — Interpleadek, 5. Venditioni Exponas, 5. Rule to return ivrit not issuable from a deputy'' s office.] — 1. A rule to return a fi. fa. cannot issue out of the i i FF. SHERIFF. SHERIFF. 393 mer — Plea, per- l.]—\d. Ashcr- larginga prisoner ndurcd to him )e return of the porfectiiii^ofype- w\\\g at the 8anie had noticf of the leir ju.-'tification. vii.U.C.R. 60. monies made on Inmitisfi/nclam i sheritl" will not money which he :eciition, on the mself a claim for against the plain- uled, when the the person enti- conse(|uence of splaintilT. Jiiirti' U. C. R. 9i. the party's title itake)i.']—2\. X [fully seized goods call in question • from whose pos- nas taken by hira, d under an assign- against creditors. ). S. '250. .]— 22. The 21 ids it8 privileges to under tiie com- . Fraser v. Dick- k]— 23, Scmble: lough a superior r, comes equally f the 24. Geo. II. i V. Adams et aL, JHMENT. NTERPLEADER, 5. IXPONAS, 5. ivrit not issuable :e.'] — 1. A rule to )t issue out of the office of the deputy clerk of the Crown I in an outer district. Atitmynunis, Dra. | Rep. 2K). " I Rnlf may issucin mratinn — Costs, \ if writ mil rrlurnetl in time.'\ — A rule to return a writ may issue in va- cation ; and if the shcriirdo not return the writ witliin the time limited by the rule, the Court will impose the costs of the rule upon him, unless under very peculiar circumstances. McGuwan v. Gi/rltrist, Hil. Term, 7 Vic, P. C, McLean, J. Rulr to rrtiirn tcrit — Effect of sith- sefjHcnt day of proceedings f/y jilain- tij)"'s order. \ — 2. A party who has ruled a sherifl' to return a writ, and afterwards given an order to slay pro- ceedings for a certain time, cannot after bringing in the body after a rule on a return of cepi corpus, was refused, until the costs of setting aside a former one for irregularity wore paid. Rex V. Ruttan, Easter Term, 6 Wm. IV. Attachincnt obtained after settle- ment, set aside urit/tout costs.^ — 6. Where an attachment was obtained against a sherilV for not returning a writ after a settlement of the plaintiff's claim belbre the rule was issued, the attachment was set aside, but without costs, as the sherilT should have come in and applied to set aside the rule. Pclton v. Wells {^Administrator of), Hil. Term, 7 Wm. IV. Sheriff, a member of parliament.'] An attachment was granted against the expiration of that time, the writ! a sheritTwho was a member of parlia- not having been returned, proceed by | ment, for not returning a writ pursuant attachment under that rule. Bergiit V. Hamilton, Mich. Term, 2 Vic. Informal return of urit."] — 3. Where a sheriff had returned a writ in an informal manner, the Court refused an attachment in the first instance. B flyman v. Struther, Tay. U. C. R. 42. [See Harper v. Powell, 9, infra.] Attachment set aside fer irref^ular- ity — Second attachment.^ — \>. Where a sheriff returned cepi corpus, and was ruled to bring in the body and attached for not obeying the rule, and the attach- ment was set aside for irregularity, and while it was in existence the defen- dant in the action had been discharged by supersedeas bail having been put in, but the rule of allowance was not served : Held, that a second attach- ment against the sheriff on a second rule to bring in the body, issued eight months after the setting aside of the first attachment and the debtor's dis- charge, was irregular ; and the Court ordered it also to be set aside. Rex v. Sheriff of Niagara, ii. 0. S. 126. Second attacliment refused till costs of former one paid.^ — 5. A second attachment against a sheriff for not 3 D to a rule of Court. Bell v. Buclianartf Mich. Term, 1 Vic. Insufficient returns, no returns."] — 8. An insutficient return is no return, and the course is to move for an attach- ment, not to quash the return. East- ivoodetal. v. McKenzie, Hil. Term, 2 Vic, and Regina v. McLeod, Mich. Term, 3 Vic. [Also, case 19, infra. J Informal return to ven. ex.] — 9. An attachment may issue against a sheriff for returning " goods on hand" to a writ of venditioni exponas. Har- per V. Powell, Easter Term, 2 Vic. Writ returned but not filed — At- tachment.] — 10. Where a sheriff, on being ruled to return a writ of execu- tion, returned it by post to the Crown office, where it was not filed because the postage on the letter was unpaid, and the plaintiff with notice of these facts, obtained a rule for an attachment on the usual affidavit of search, the Court set the attachment aside, but only an payment of costs, as the sheriff was bound to have paid the postage, to make his return effectual. Reginav. Moodic,uU.C. R. 410. 394 SHERIFF. SHERIFF. li Attachment for costs of rule."] — 11. A sheriir cannot be attached for non- payment of the costs of a rule to re- turn a writ under 3 Wm. IV. ch. 9, unless there has been a rule specially calling on him so lo do. Marcy v. Butler, Hil. Term, 2 Vic., and Doe dem. McGregor v. Grant, Trin. Term, 2 iV 3 Vic. 12. Where a sherilT being ruled to return a writ, enclosed it to the clerk of the Crown three or four days after the rule expired, so that it was not in the liles when the search was made, but was produced in open Court by the clerk, the Court refused an attachment for the purpose of making him pay the costs. Andrews v. Robertson et al., iii. O. S. 304. Rule issued on same day as writ returnable.^ — 13. An attachment will not be {framed atrainst a sheriff for not returning a writ pursuant to a rule to return it issfued on the same day as the writ was returnable. Regina v. Hamilton, Easter Term, 2 Vic. Attachment an irregular rule. — Setting aside same.'] — l-t. The sheriff cannot be served with a rule to return a writ until the return day is past. Where an attachment has been issued on such an irregular rule, the proper course is to move to set aside the at- tachment, and not the irregular rule upon which the attachment has been founded, legina v. Jarvis, iii. U. C. R. 125. Rule o/jtai lied after return oftorit, discluugal.] — 1."). A rule to return a a ca. re. was issuoil m Trin. Term. — In .July following the writ appeared to have been in the hands of the plain- tiff's agent, and in August the attach, ment issued : the Court discharged it on paying costs up to the time it was returned, aitliongh a trial had been lost. Rex V. Sherirmd, iii. 0. S. 305. Attachment far not jx^ying over money — ( 1 roii ndsfonippusing.] — 16. It is a good ground to prevent the sum- mary interference of liie Court by attachment against a sheriff for not pay- ing over money, that the money has been attached in the hands of the party not paying over, under the Absconding Debtor's Act. Powers v. Scott, Hil. Term, 3 Vic. Attachment against ex-sheriff six months out of office.'] — 17. The Court will not order an attachment against a sheriff who has been more than six months out of office before rule issued against him, for not giving an account of sales made and monies received from a defendant on writs against his lands, although the rule directing the sheriff to render such an account had before been granted. Ladd v. Rur- well et al., Easter Term, 3 Vic. [Also see case 20, infra.] For not returning tcrit although indemnity demanded and refused.] — 18. Where a sheriff had three writs of execution against the personal pro- perty of a defendant, and having seized and sold, had partly satisfied the first and third writs, when a stranger claim- ed the property, and the plaintiff on the second writ refused to give the sheriff an indemnity, and the sheriff did not return his writ, an attachment was granted against him for not return- ing the writ. Land v. Burn, Trin. Term, 3 & 4 Vic, P, C. Macaulay, J. Attachment for insufficien t ret urn.] — 19. An attachment may be granted against a sheriff for an insufficient re- turn. Smith V. Bellows, Hil. Term, 4 Vic, P. C. Jones, J. Agaitist sheriff more than Az months out of office.] — 20. An attach- ment will not be granted against a sheriff for not returning a writ, when he has been out of office for more than six months before the rule to return the writ issued. Mott v. Gray et al., i. U. C. R. 392. For not returning writ, after fail- ure of an intended compromise.]— 2 1 . Wliere after the delivery of a writ against lands to a sheriff, the plaintiff and defendant agreed lo compromise, irifiTor not pay- the money has ds of the party he Absconding s V. Scott, Hil. ex-sheriff' six 17. The Court ment against a more tlian six fore rule issued ng an account onies received rits against his ie directing the an account had Ladd V. Bur- m, 3 Vic. I torit althmiqh md refused.^ — ad three writs e personal pro- id having seized atisfied the first 1 stranger claini- the plaintiir on sed to give the and the sheriff , an attachment n for not return- V. Btirti, Trin. C.MacauIay, J. ffictcnt return.'] may be granted fi insuflicient ra- ws, Hil. Term, norc than dx -20. Anattach- inted against a ig a writ, when re for more than 3 rule to return V. Gra7j et al., wit, after fail- 7;r»»jMf.]— !21. ^ery of a writ iff, tlie plaintiff lo compromise, SHERIFF, and after a delay of more than two years, the compromise was not effected, and the plaintiff obtained a rule for an attachment against the sheriff for not returning the writ, the Court set the rule asicie. Crooks v. G'Grady, 1. U. C. R. 400. Sufficiency of grounds for opposing rule."] — 22. It is no sutlicient ground for opposing a rule for an attachment for not returning a writ of execution against goods, that there is a question pending before the Court respecting the title to those goods. The sheritf should in such a case apply to have the time exltnded for making his re- turn until the question of property be decided. Stull v. McLeod, i. U. C. R. 402. 23. Where a sheriff returns cepi corpus to a writ of ca. sa., and the plaintiff rules the sheriff to bring in the body, and the sheriff not comply- ing with the terms of the rule the plaintiff then obtains a rule for an at- tachment against the sheriff for not bringing in the body of the defendant at the return of ihe rul,. .j that effect : Held, that it i^ a good answer to such rule for an attachment, to shew by affi- davit that the defendant was arrested under a ca. sa. and placed in close custody, and was afterwards discharged from close custody and admitted to the limits by virtue of a certificate from the clerk of the Crown and pleas an- nexed to the affidavit, and that he had not since been committed to close cus- tody by any process whatever. "White V. Petcli et al., vii. U. C. R. 1. Impertinent return, a contempt."] — 24. Impertinent matter in a return to a writ is considered as a contempt in the sheriff. Jones v. Scfiofield, Tay. U. C. R. 610. Power of Judge in chambers.] — 25. An attachment against a sheriff for not obeying a rule cannot be granted by a judge at chambers. Rex v. Sher. iff of Niagara, Dra. Rep. 343. SHERIFF. 395 26. Qtuere: Can a judge in cham- bers pass judgment upon a sheriff for contempt, under our statute 7 Vic. ch. 33, after the object of the statute has been attained by the return of the li. fa.? Regina v. Jarvis, vi. U. C. R. 558. Relief bjf allowing return of tcrit.] 27. The Court will sometimes, under special circumstances, relieve a slieritf by allowing the return of a writ, even after a motion has been made to bring in his body on the coroner's return of cepi corpus, to the attachment issued against the sheriff for not returning the writ. Regina v. Jarvis, i. U. C. R, 415. Return before attachment — Re- lief] — 28. Semlile: That when a sheriff returns a writ before the attach- ment issues, but not within the time limited by the rule, he can only be re- lieved upon payment of costs. Jiatilc of Upper Canada v. McFarlane et al., iv. U. C. R. 396. III. Actions against Sheriff. Sec Action, 2, 3. — De Injuria, 7. Escape. — False Return. — Heir, 4. — ^Judgment NGN obstante ver. DiCTO, *J. — Money had and re- ceived, 2. — New Trial, Vll. 2. Replevin etc., 15. — Set off, 5. Taxes, 8. — Tenancy in common, 1. — Venue, 4. Case for not giving public notice of sale — Pleading^.] — 1. In an action on the case against u sheriff for not giving notice of the sale of effects taken in execution, at the most juiblic place in the township : Held, not necessary to set out the name of such place. A statement that the defendant sold the goods without legal notice, and that he sold them for less than their real value, were not considered as distinct and independent grounds of action. 71/u/- cdm V. Rapeljc, Tay. U. C. R. 4!)6. For seizing goods — Evidence.] — 2. In an action against a sheriff for seizing t 396 SHERIFF. SHERIFF. ^1' ■ !li ill ■ '! goods, it is sufficient to prove that they were seized colore officii, without pro- ving a writ of execution. Holt v. Jarvis, Dra. Rep. 200. Trespass for seizing goods — Justi- Jication — Necessary evidenced] — 3. In trespass against a sheriiTfor seizing the goods of the plaintiff under an at- tachment issued under the Abscond- ing Debtor's Act against the goods of a third party, by whom they had been sold to the pluintifT before tlie attach- ment, the defence was, that the sale was fraudulent and void against credi- tors, under 13 Eliz. ch. 5 ; but the sheriff did not prove that any debt had been due from the absconding debtor to the attachment creditor: Heldy that without the proof of this, his justification was incomplete, and that the plaintiff would be entitled to recover. Grant v. McLean, iii. 0. S. 443. 4. Where in trespass against a sher- iff for seizing the plaintiff's goods, the defence was that they were the goods of a third party, and had been seized tinder an attachment issued against him as an absconding debtor, but had been delivered up at the time of sei- zure on the plaintill's' entering into a bond for their production when requi- red, and afterwards they were sold at the suit of the attaching creditor on a fi. fa., the plaintiffs' having given them up according to the terms of their bond, and the plaintiffs now claimed them as their own property under an assign- ment from the absconding debtor prior to the attachment, which the defen- dant contended was fraudulent and void as against creditors, but proved no debt due to the attachment creditor, nor did he shew the judgment nor exe- cution, relying on the bond as estop- ping the plaintiffs from disputing those facts ; and the jury, under the direc- tion of the judge, found for the plain- tiffs ; the Court, although agreeing in the direction of the judge, that the judgment and execution should have been shewn, yet from the circunistan. ces of the case, and on affidavits fded, shewing that the damages were exclu- sive, granted a new trial on payment of costs. Powers et al. v. Rittta7i, iv. 0. S. 58. Trespass for seizing cattle, ^c. — Pleudifigs.J — 5. Where in trespass for taking cattle, ns et al. v. Kingsmill, i. U. C. R. 6fib. Trespass for seizing goods — Plea, not possessed — Evidence.] — 12. Scm- ble: That when a sherifl' under a iieri facias seizes goods in the possession of the debtor, and a third party claims them as his under a bill of sale, which is impeached as being merely pretend- ed and colorable — the sherifl", when sued in trespass for taking the goods, may, upon a plea that the goods are not the plaintiff's, contest his right on the ground of fraud, without proving the judgment; and the learned judge reporting that the non-production of the judgment was not objected to at the trial, the Court would not after- wards entertain the olijection . Keeser v. McMnrtin et al., iii. U. C. R. 327. Trespass for seizing goods — Evi- dence offi.fa. n7id judgment.] — 13. In an action of trespass for taking goods, brought against the sheriff act- ing under a fi. fa., proof of the judg- ment and fi. fa. by the sheriff is indis- pensable only in cases where the question turns exclusively upon the fact whether the goods have been iVaiidulently assigned by the execution debtor to the pinintifl'. Culbert v. i Conger, vii. U. C. R. 3f)5. Trespass for seizing goods — Exe- cution must be specially pleaded.] — ' 14. A sherilf cannot defend himself in I an action of trespass brought against j him by two joint tenants, by shewing 398 SHEW IFF, SHERIFF. a writ of fieri facias against the other of the joint lenants, under which the alleged trespass was committed, unless he has justified specially under the writ as a defence ; but when he had omitted to do so, and a verdict was Ibund against him, the Court granted a new trial on payment of costs, with leave to him to amend his pleadings. Lee V. Rwpelje, ii. U. C. R. 3GS. No nbjpction by sheriff that jury vimmoncd by himself. 1 — 15. It is no objection on the part of the sherifl', in an action against him, that the jury have been summoned by himself and not bv the coroner. Ainslic v. lia- pelje,'\\u\i.C. R. 275. Demand of siap/ns money on an execution before action.'] — 1(). In an pction against the sherifl' by an execu- tion debtor, for the surplus of money remaining in his hands after satisfying a fi. fa., no demand before action brought is necc-ssar^'. lb. Trespass — Sheriff' must plead exe- cution.] — 17. Where in an action of trespass against a sherifi" for seizing and taking away goods the plaintilF proves that the sheriff took the goods out of his actual possession, the defen. dant cannot give evidence of his legal authority to seize them under a fi. fa., without pleading it. Pollock et al. v. Fraser, iv. U. C. R. 352. Justification iinder fi.fa. — Seizure before return of urit'.'] — 18. A plea jiistifying an action of trespass in sei- zing goods, &c., under a writ of fi. fa., must shew that the goods were seized before the return of the writ. Out- tmter v. Dofoe, vi. U. C. R. 256. Action fnr not arrcstins^ — Dama- ges!] — 19. If a jury, upon being' charged that they were not to find for | the plaintiff unless they were satisfied j that there had been neglect on the [)art ' of the sheriff from wliich the plaintiff: had suffered some damage, return a nominal verdict in favor of the plain- : tiff, the Court will refuse to set it aside : on the ground that, even to sustain aj verdict for nominal damages for not arresting a defendant upon mesne pro- cess, some dear proof of an injury received from the neglect to arrest should have been given by the plaintiff, and that no such cviilciico was olTcrcd. O'Connor v. Hanvillon, iv. U. C. R. 213. Trespass — Statement of judgment and urit in justification.] — 20. A plea of justification under a writ of fi. I fa. in trespass for taking goods, is bad, j if it state the writ to have been issued I before judgment was entered. Since the rule which requires the judgment to be entered of a particular day, the issuing of the writ upon it should be I averred of the day it actually issued, I with the statement "tested of" the day in term on which it is tested. Don gall V. Moodie, i. U. C. R. 374. Trespass — Two distinct trespasses — Justification of both under one uiit.] — 21. Where in a declaration in trespass containing two counts, charg- ing two distinct trespasses in taking different goods at different times, the defendant justifies the two distinct under one writ: Held, plea good. Cameron v. Imint, iii. U. C. R. 453. IV. Actions by Sheriff. See Bond, II. 6, 12. — District Court, 8. — Escape, 22. — Indem- nity Bond, 3, M. — Limits, II. 10. New Trial, I. 14. On bond to the limits — Pleadings — Arrest of judgment.] — 1. In an action by a sheriff on a bond to the limits, if the defendants plead that the debtor left the limits but afterwards returned to them and always remained on them after his return, the sheriff may take issue on the subsequent re- maining, and he need not new-assign ; but he cannot do so if the defendants by their plea do not admit the bond to have been broken before the debtor's return, as the plea would then amount to the general issue. And where the [FF. damages for not t upon mesne pro- rool" of an injury neglect to arrest •oil hy the plaintiff, lonco was ollered. 'Ion, iv. U. C. R. ncnt of jwlgmcnt ficafWH.]—''20. A iiiider a writ of fi. iiiig goods, is bad, ) have been issued s entered. Since ires the judgment particular day, the upon it should be it actually issued, "tested of" the 'Inch it is tested, i. U. C. R. 374.. dintinct trespasses both n/iilcr one in a declaration in two counts, charg- espasses in taking liflerent times, the the two distinct Held, plea good. , iii. U. C. R.453. BY Sheriff. 12. — District VPE, 22. — Indem- , — Limits, II. 10. imits — Pleadings lent.] — 1. In an on a bond to the intR plead that the Its but afterwards J always remained return, the sheriff le subsequent re- td not new-assign ; if the defendants admit the bond to )efore the debtor's ^ould then amount And where the SHEBIFF. plaintiff declared that the debtor left the limits in February, and the de- fendants pleaded that the plaintiff as sheriff, removed him in November, and that the debtor returned and always afterwards remained thereon; and the plaintiff replied that he did not always afterwards remain, on which issue was joined, and the plaintiff ob- tained a verdict — the Court refused to arrest the judgment, the verdict, accor- ding to the time stated, being consis- tent with the plaintiff's right, and the issue having been in fact on tlie subse- quent remaining only. Cameron v. McLeod ct al., Trin. Term, -l Vic. On Indemnity bond — Verdict for sherif against evidence.] — 2. Where an indemnity bond was given to the sheriff by an execution creditor for the sale of the debtor's goods, and the creditor afterwards directed the sheriff not to sell, but notwithstanding he went on and sold : Held, on an action by the sheriff on the bond of indemnity for damages recovered against him in consequence of the sale, that the de- fendant was entitled to a verdict on an issue that the sheriff was damnified of his own wrong ; and the jury having found for the sheriff, the court granted a new trial. McMalton v. Jngersoll, Hil. Term, 5 Nic. Verdict against dieiiff for an es- cape — Rean'cry from debtor.] — 3. Where a sheriff suffers a voluntary escape, he cannot afterwards bring an action against the debtor to recover from him the amount which he has had to pay for bis escape ; but where in such an action the justice of the case was clearly with the sheriff, and the judge charged the jury in favor of the defendant, but they found a verdict for the plaintiff, the Court refused to _'ant a new trial. Ruttan v. Ashford, Hil. Term, 5 Vic. Submissio?i to arbitration by sheriff no bar to his action against the debtor,] — 4. They also lield that a submission by the sheriff to arbitration in an action SliERIFF. S99 against him for an escape could not bar his right afterwards to recover from the debtor, and that it was not necessary for that purpose that he should have allowed the action against him for the escape to have proceeded to verdict and judgment, lb. Case for fraudulent rejiresentation of an execution creditor.] — 5. A sheriff cannot maintain an action on the case as for a fraudulent represen- tation, when having seized goods on an execution of a third party he la afterwards instructed by the defendant to seize the same goods on his execu- tion, although on an adverse claim being set up, the plaintiff on the first writ withdrew his execution, and the defe'^Jant refuses either to withdraw ij'o, or to indemnify the sheriff, and the adverse claimant afterwards prosecutes the sheriff and recovers for the illegal seizure and detention. Commercial Bank v. Jarvis, Easter Term, 5 Vic. Action against his deputy for an, escape — Assignment of breach.] — 6. Where in an action on a bond by a sheriff against his deputy the breach assigned within the terms of the condi- tion was, that the order of a judge was delivered to the deputy for the commit- tal to close custody of a debtor who had been admitted to the limits, and that the deputy had arrested him, but suf- fered him to escape ; the breach was held bad, because it was not alleged either that the debtor was on the lim- its at the time the order was delivered to the deputy, or that he was arrested on the limits by the deputy under the order, lb. Case against his bailiff for an es- cape — Dainages.] — 7. An action on the case lies in favor of a sheriff against a bailiff for negligence in allowing a prisoner to escape, in consequence of which the sheriff is sued by the credi- tor, and a verdict recovered against him for nominal damages: and sem- ble, that in such an action the sherifl I •::sB» 400 SHERIFF. SHERIFF. 'il: I W' is allowed to recover both the costs? of the action againsst liimsdf and his own costs, ahliough no notice of that action had been given to the l)aililV by the yheritr, the plaintilV not being conclu- ded by the Ibrmer verdict, if he had no opportunity of defending in the sheritV's name, liuttan v. Shea, v. U. C. R. 210. Action a2;ainst hail to the limits — Costs of original ad.ion.'\ — 8. Where one of the bail of a debtor admitted to the limits, hearing oi' the debtor's es- cape, paid to the sherilVthe amount of the debt and costs for which he was imprisoned, exclusive of the siierifl"'s own fees, and the sheritl" nevertheless sued the other of the obligors in the limit bond, in order to recover from him the amount of costs in an action which the plaintilV in the original ac- tion had brought against the sherilf: Held, that after the recei|)t by the sherilf of the money paid by the other of the bail he could not recover for those costs, since he ought to iiave paid over the money, and not defended the action nor allowed it to proceed. Cor- bett V. .Lake, v. U. C. R. ■i>b4>. V. Actions against, and Liabili- ty OF, Sureties. See Abatement, 7. — Attorney, IV. 8. — Variance, 6. — Witness, 15. Sureties botmd h/ slicrijfs rcturii.'] — 1. The sureties of a sheritVare con- cluded by the sheritV's return to a writ of ft. fa. of money made, and cannot be allowed to get rid of their liability by shewing that there was a prior exe- cution in the sheriff's hands which ought to have been first satisfied, Jind was not. Shutcr el al. v. Graham cL al., ii. U. C. R. lU. 2. Nor can they be relieved after such return, by shewing that the money was not in fact made, even although an issue be raised U|)on the pleadings, whether the money was actually made or not. Phclp v. McDonell, Hil. Term, 5 Vic. Covenant against slicriff and stire- tics for not paying over monies — De- clnration.'] — ',i. In covenant against a sheriff and his sureties for default in the sheriff in not paying over monies levied under a writ of fieri facias against lands, the judgment on which the fieri facias issued must be set out in the declaration, but it is not neces- sary to recite a previous writ of fieri facias against goods. Bidivcllw. Mc- Lean et al., Mich. Term, 2 Vic. Action — Personal reiM-esentativcsof sherijf'cunnot fjc Joinedttrith sureties.]- •i. After a sheriff's death his personal representatives cannot be joined with i\is sureties, in an action on the cove- nant given by the sureties and the sheriff, under 3 Wm. IV. ch. 8, for a default by the sheriff in his life-time. Boulton V. Hamilton, Hil. Term, J Vic. [Also further, case 15, infra.] Action by exeaition debtor far a false return bij slieriff' — Declaration,'] — 5. Where, in an action against a sheriff's surety, the plaintiff sit out a judgment and execution against him- self in a former suit, and that the sher- iff had levied the debt but falsely re- turned nulla bona to the writ, by means of which return the plaintiff was obli- ged to pay the debt again : Held, on general demurrer, that the declaration was bad, in not shewing how the plain- tiff was compelled to pay the second time the levy on the execution, having discharged him from the debt. Davii (H.) V. Hamilton, Hil. Term, 4 Vic. Covenant against sureties — Gener. al aver/ncnts.]~6. In covenant against a sheriff's surety, it is a sufficient " breach to allege that money was re- ceived by the sheriff, "as sheriff," without stating "by virtue of his 'office,'* but if the plaintiff omit to aver that the receipt of the money by the sheriff was after the execution of the covenant by the surety, the declaration will be bad FF, McDonell, Hil. '■ sha-iff and sure. )vcr monies — Ue- ovenant against a ties for default in lying over monie» it of fieri facias Igment on which 1 must be set out ut it is not neces- ;vioiis writ of fieri Bidivcllv. Mc- Term, 2 Vic, rq)resc>itativcsof cdu-it/i sureties.']- leatli tiis personal ot be joined with jtion on the cove- sureties and the IV. ch. 8, for a 1' in his life-time. »«, Hil. Term, 3 , infra.] fioti debtor for a ff- — Declarntioni] 1 action against a plaintiff set out a ution again:?! him- and that tlie sher- bt but falsely re- the vvrit,by means plaintiir was obli- ; again ; Held, on lat the declaration 'inghow the plain- to pay the second execution, having the debt. Davis Hil. Term, 4 Vic. 5 sureties — Genet: n covenant against it is a sufficient ' t money was re- riir, "as sheriff," irtue of his 'office," lit to aver that the r by the sheriff was jf the covenant by iration will be bad I SHERIFF. on general demurrer. Dcms (JD.) v. Hamilton, Hil. Term, 4 Vic. [See an assignment of this breach— case 18, infra.] Covenant for false return by sher- if— Pleadings.] — 7. Where in an action against a sheriff's surety for a false return of nulla bona by the sher- iff, the plaintiff averred as a breach that the sheriff had levied and made the money, and the defendant pleaded that he had levied and made 282^., a part thereof, and no more, which part he paid over : Held, on special demur- rer, a sufficient answer to the plaintiff's declaration, and that the defendant was not obliged to state that there were no more goods or chattels whereby the sheriff could make the residue. Wat- son et al. v. Hamilton, Hil. Term, 4 Vic. Covenant by execution debtor for misconduct of slierijf — Declaration.] — 8. In an action by a defendant in a writ of execution against the sureties of a sheriff on their covenant under the statute, for misconduct in the sheriff in the execution of the writ, it is not necessary that he should set forth in the declaration the judgment in the suit against himself, and it is a good breach of the covenant to shew that the sher- iff sold the defendant's property for more than sufficient to satisfy the debt, and afterwards wrongfully sold it at a reduced price, causing a loss to the de- fendant of the difference. Sanderson T. Hamilton, i. U. C. fi. 460. Profcrt of covenant not necessary.'] — 9. In an action against the sureties of a sheriff on their covenant it is not necessary in the declaration to make any profert of the covenant. M^Crae V. Hamilton, Trin. Term, 4 & 5 Vic Staying proceedings wJien security has paid the fvll amount of his lia- bility.] — 10. The Court will not stay proceedings in an action against a sher- iff's surety, who had suffered judg- ment to go by default, on the ground that he has already paid the full amount 3 E SHERIFF. 401 of his liability, unless such payment were after plea pleaded ; and the costs of actions brought against the surety, cannot be included in making up the amount for which he is liable under his covenant. Hixon v. Hamilton, Trin. Term, 4 & 5 Vic. 11. The Court refused to relieve a sheriff's surety who had suffered judg- ment to go by default after damages had been assessed against him, by al- lowing him to plead that he had already paid the amount of his covenant under the statute. Scott v. McDonald et al., Mich. Term, 5 Vic. Action for nwney received by slieriff — Declaration — Breaches. ] — 12. In an action on a sheriff' 's covenant, it is a good breach to state that he was in- debted in a named sum for money had and received, without specifying how, or on what account the money was received. Commercial Bank v. Jar- vis et al., Mich. Term, 6 Vic. Action for false return by sheriff — Plea of payment before action.] — 1 3. It is no plea to a breach of a sheriff's covenant shewing a false return of nulla bona to a writ of execution after levying the money, that the sheriff paid the amount indorsed to the plain- tiff before the action against him, on the covenant, was brought. lb. Covenant against sureties — Plead- ings, negative pregnant, certainty.] — 14. In covenant again.st a sherirt's sureties, the breaches assigned were, first, that the sheriff' did not arrest the debtor in the original action on a ca. re. delivered to him, but falsely re- turned non est inventus; and secondly, that he arrested him and afterwards allowed him to escape. The defen- dants pleaded to the first breach, that the sheriff did not falsely and deceit- fully return that the debtor was not found in his district, and to the second, that the gaol was accidentally destroyed by fire, and so the debtor escaped. Both pleas were bad ; the first, as containing a negative pregnant, and 402 SHKRIFF. sheriff's deed. Hi! ^ !i! S 1 the second, for not tlenying that the fur occuiioJ throiigli the negligence or default of the sherilf, or his deputy. Corkcry v. Graham ct al., i. U. C. R. 31:"). Staying ^)rotrec/^n,irs till recovery made against jKi'suiial re2)reseHtativcs of sheriff.] — 15. After tlie decease of a shenti', the Court will not stay pro- ceedings in an action against his sure. ties on their covenant for a default committed by the sherilf in his life- time until a recovery shall be had against the sherilf's representatives, nor will they direct in such a case that the execution on the judgment against the sureties be indorsed to levy first of the property of the sherift. Morris et al. V. Graham ct al.,'\.\] C. R. 521. Not liable for mere error of judg- ment inslieriff^ — 16. The sureties of a sheriff are not liable under their covenant, given in accordance with the terms of 3 Wm. IV. ch. 8, as for wil- ful misconduct on the part of the sheriff, where the misconduct consists in a mere error in judgment in deci- ding bona fide upon the priority of writs of execution ])laced inhisiiands. Bradbury v. Adamsetal., i. U. C. R. 538. False return fry deputy after the death of sheriff— Remedy of injured qHirty!\ — 17. Scmhlc: Where a sheriff dies, and after his death his deputy returns a writ which is false, the remedy for the party injured by the false re- turn is against tlio sureties given by the deputy to the sheriff, and not against the sureties given by the sheriff liimself. McLeod v. Boulton, ii. U. C. R. 44.. Assignment of breach of the cove- nant for jjayment of monies Inj sher- *//•] — ^^* ^' '** ^ sullicient breach of the covenant that the sheriff would pay ov(T the monies received by him " that he had by virtue of his office received certain monies which the ])Iaintiffs are entitled to according to the true intent and meaning of the covenant, to wit, 50^. within the four years mentioned by the ct)venant, but that he neglected and refused to pay them to the plaintiffs, although often requested so to do " Shutcr et al, v. Graham, et al., ii. U. C. R. 164<. Necessary evidence, to render sure- ties liable.^ — 19. In an action against a sheriff's sureties, it must be shewn that the default or negligence for which the action is brought took place during the term for wiiich they were liable under their covenant. McMartin v. Graham etal., ii. U. C. R. 3()5. Execution debt assumed by sheriff — Nou-]Hiymcnt — Liability of sure- ties.'\—2Q. Semble: That if a sheriff having an execution against a person to whom he is indebted agree with that person to assume the amount of the execution and pay it to the plain- tiff, and receives from the debtor a credit for so much on the debt due iVom himself, but does not pay over the money to the plaintiff in the writ, that this is such conduct as the sureties will be answerable for under the cove, nant. lb. VI. Fees. See Poundage and Sheriffs' Fees. SHERIFF'S DEED. See Alien, 6, — Scire Facias, 2. Deed of land sold for taxes topur- chaser''s assignee.'] — 1. The deed of land sold for taxes may be made by the sheriff to the assignee of the high- est bidder. Doe dem. Bell v. Orr, Hil. Term, 7 Wm. IV. Shcriff^s deed not a mere release.] — 2. The deed given by the sheriff affer a sale of lands under a fi. fa., whereby he conveys all the estate and interest of the debtor, is not to be con- sidered as a mere " release " in the strict sense of the term. Doc dem. Dissett V. McLeod, iii. U. C. R. 297. sheriff's dekd. SHERIFF S SALE. 403 Deed, prima fncic etridence of torit and sale.] — 3. The sheriff's deed is prima fiicie evidence that the writ was delivered to tlie sheriff and the lands seized and sold under it, in an action of ejectment by a purchaser of lands sold under an execution. Doc dcm. Spa/ford V. Broti-n it id. iii O. S. 90. Sale and deed Inj ilcputTj after the death of the sheriff'.] — 4. A deed ex- ecuted by a deputy sheriff, of lands sold under an execution after the death of the sheriff to whom the writ was directed, must be in the name of the deceased sheriff and not of the deputy ; and if a sale be made by the deputy after he has received noti(;e of the appointment of a new sheriff, it will be invalid and the deed void, as the writ should then be executed by tl»e new sheriff. Doe dem. Campbell V. Hamilton, Easter Term, 3 Vic. Registi'y.] — 5. The provisions of theReifistry Act areas much applicable to sherill's' deeds given to purchasers at sheriffs' sales as to any other des- cription of conveyances. Doe dem. Brennan v. O'Neill, iv. U. C. R. 8. Conveys land actually sold and no mare, thoudt more he contained — Ambiguous dcycrijHion.] — 6. A she- riff's deed being but a completion of the sale, is good for land actually sold ; a party therefore is not estopped by a Bheriff's deed from proving by parol that portions of the land therein des- cribed as sold were not in fact included in the sale ; and if the description of the whole land in the deed be so blended together that one cannot distinguish between what was sold and what was not, the deed will be bad. Doe dem. Miller v. Tiffany, v. U. C. R. 79. 7. Quarc: As to the right of a pur- chaser at sheriff's sale to s?t up the deed in the first place as valid, quoad the lessor and lessee, and then in the second place to repudiate the deed as inva/id, quoad the execution creditor ? Doe dem. McPherson v. Hunter, iv. U. C. R. 4.49. SHERIFF'S SALE. See Absconding Debtor, 13. — Alien, 5. — Dower I. 3. — Eject- ment, VIII. 2, 14. — Execution, 19, — Frauds (Statute of), I. 1 ; III. 1.— Mortgage, 1, 13. — New Trial, II. 22.— Scire Facias, 2. Sheriff, I. 5, 6 11. — Taxes, pas. PuIjHc sale of lands or goods re- qnircd.] — 1. The statutes 43 Geo. III. ch. 1, and 2 Geo. IV. ch. 1, sec. 20, clearly contemplate a public sale in regard to lands, and thai has ahvnys been the course both with respect to lands and goods (per Robinson, C. .1.) Doe dcm. Miller v. Tiffany, v. U. 0. H. oo. Under spent fi. fa.] — 2. A sale of lands under a spent fi. fa. is void. Doe dem. Greensldclds v. Garroiv v. U. C. R. 237. DeUor^s acquiescence in sale, a wai- ver of certain irregularities.] — 3. A party against whose lands a writ of fi. fa. was issued, under which the lands were seized and sold, cannot contest the validity of the sale on the ground of long delay in selUng after the seizure, where it ajjpears that the sale took place at his own instance or with his assent, and that he had received the benefit of the proceeds of such sale ; neither can his heir after his death take an exception to the proceedings. Doe dcm. Hurley v. McManus, i. U. C. R. 141. Omission of notice of an adjourned sale, how made good.] — 4. Any want of regidarity in giving public notice of an adjourned sale under a fi. fa. will not invalidate the sale where the debtor attended the sale by his agent and after, wards ratified what had been done. Doe dem. Dissctt v. McLcod, iii. U. C. R. 297. Invalid sale. — LialAlity of sheriff to refund purchase nwney.] — .'>. The court refused to order a sherilF to re- fund money received by him as the price of land sold at sheriff's sale, tlie 404 SHERIFF S SALE. SHERIFF'S SALE. ii n i : I' purchaser having been ejected upon die ground that lands cniilil not be nold under a fi. fa. as assets in the hands of an administrator. Carfrae In re, Tay. U. C. R. 651. Abandmiment of seizure — Subse- quent seizure and so/c] — 6. Where personal properly had been seized in execution by a sheriflf and aderwards abandoned by the direction of the plaintiff's attorney, and a memoran- dum of the suit being discharged given to the defendant, but the sherifl" was afterwards directed to proceed, and sold to the plaintifl* in this action (the property in the meantime having liocn sold bona fide by the defendant who had left it in the possession of the tle- fendant in this action) : Held, that no property passed to the plaintiff by the sheriff's sale, as the levy had been abandoned and a bona fidesjilc after- wards made by the defendant against whom the sheriff had the execution. Gould v. White, iv. O. S. 124. Interference of court to prevent the giving of the decd'\ — 7. The Court will, after a sale of lands under an ex- ecution, prevent an assignment by the sheriff to the purchaser, where good cause is shewn for requiring their in- terference. Bank of Upper Canada V. Miller, Hil. Term, 3 Vic. Notice of motion to set aside sale, to tvlwm to be given.'] — 8. Where an application was made to set aside a sale of land by a sheriff and delay the execution of a conveyance to his ven- dee, and notice of the motion and rule had been given to the sheriff and plaintiff's attorney, but not to the ven- dee : the Court refused to interfere. McGUlis v. McDonald, Easter Term, 3 Vic. Whole lot sold, u^hen part might have been sufficient.'] — 9. The fact that the whole of a farm may have been sold by a sheriff for a debt, which one would have supposed might have been satisfied by the sale of one portion of it, is no ground to invalidate the aale. Doe dem, Hagerman v. Strong et al., iv. U. C. R. 510. Sale under a valid, writ, hut erro- neous Judgment — Land not recover- able.'] — 10. After land has been sold upon a writ valid upon the face of it, though the judgment upon which the writ issue 1 may be reversed for error appearing upon the record, yet the de- fendant in the execution can only be restored to the money, not the land. lb. Sale under a district court %vrit,for an amount beyond its jurisdiction.] — 11. It is no objection to a sale under n fi. fa. from a district court that the writ directs a sum beyond the jurisdic- tion of the court to be levied, which is slated in the writ to have been reco- vered for damages and costs. lb. 12. Qiicerc: Would the writ and sale be void if it had been stated in the writ that a sum exceeding the juris- diction of the court had been recovered for damages only ? lb. Sale l»i cx-shcriff — Incipient step while in office.] — 13. Scmhle: That to support a sale by an ex-sheriff out of office, it must appear that while in office he acted upon the writ to an extent amounting in law and fact io an incipient step in the execution of it, and duly followed up such step after leaving the office. Doc dem. Miller v. Tiffany, v. U. C. R. 79. What acts, an inception of execu- tion.] — 14. Semblc also: That the mere receipt of a writ by a sheriff while in office, will not of itself be an incipient step in the execution of it. lb. 15. Qu(tre: What step will be a sufficient commencement of the exe- cution of a writ against lands? lb. 16. Will an advertisement in the Gazette or otherwise, according to the statute 1 Geo. IV. ch. 1, sec. 20, be sufficient ? lb. Inception of execution — Acquics- ence of debtor in irrcgula7ities.] — 17. Held, (Draper, J., dissentiente), that BALE. SHIPPING. SHORE. 405 alidate the Rale. V. Strong et al., tvrit, but erra- nd not recover' ul has been sold >n the face of it, upon which the sversed for error cord, yet the de- ion can only be y, not the land. ct court icrit, fon- ts jurisdiction.] m to n sale under t court that the ^ondthe jurisdic- levied, which is have been reco- id costs. lb. lid the writ and icon stated in the coding the juris- d been recovered lb. '■ — Incipient step . Scmblc: That an ex-sheriff out ear that while in I the writ to an law and fact to the execution of up such step after Doc. dem. Miller R. 79. •eption of cxecu- also: That the rvrit by a sheriff lot of itself be an xecution of it. lb. lat step will be a nent of the exe- ist lands? lb. ertisement in the , according to the ch. 1, sec. 20, be mtion — Acquics- •gularities,'] — 17. lissentiente), that the facta mentioned in the atatementof this case (as given in the report,) consti- tuted such an inception of execution against lands by the sheriff, during the currency of the writ and while he was in office, that a deed made under such execution by the same sheriff, after the writ was current and after he had gone out of office, passed the legal estate to the purchaser : Held also, (Draper, J.,dis8entiente), that the con- duct of the execution debtor (also given in the report), shewed an acqui> esence on his part in the ex-sheriff's right to proceed with the sale of the lands as he did, under the writ. Doe dem. Tiffany v. Miller, v. U. C. R. 426. S,jle of latuls by an cx-^icrif scrw- ral years after the currency of n'rit.] — 18. The sale of lands by a sheritf under a fi. fa. five years after the sheriff who sold had left his office, when there had been no seizure or advertisement of sale during the cur- rency of the writ, no continuance of proceeding under it, and no assent of the parties to the delay, cannot be up- held. Quare: Would such a deed be valid even though the sheriff con- tinued in office up to the time of salel Doe dem. Young v. Smith, i. U. C. R. 195. Sheriff not allowed topurcJiasc at sale.'] — 19. A sheriff cannot in any manner become the purchaser of pro- perty sold under an execution. Doe dem. Thompson v. McKenzie, Mich. Term, 2 Vic. SHERIFF'S VENDEE. See Taxes, passim. — Title, passim. Trespass, I. 1. SHIP REGISTRY ACT. Reciting the certificate of registry of mvncrsfiip in a mortgage.] — 1. Under our provincial Ship Registry Act 8 Vic. ch. 5, sees. 13, 23, 24, the cer- tificate of registry of ownership of a vessel is required to be recited in a transfer by way of mortgage or secu- rity, (with a power of sale in case of default), as well as upon an absolute or immediate sale ; and where this is omitted, the mortgage will be wholly void. Wdtkins ct al. v. Corbctt, vi. U. C. R. 587. Sufficiency of recital.'] — 2. Held, that the following recital of a certifi- cate of registry of ownership of a ves- sel contained in an indenture of sale of such vessel — " The schooner James Coleman of Dundns, and duly regis- tered according to the statute in such case made and provided, and the cer- tificate of ownership of which is granted to the said William Colcleugh, whereby it is certified that the said vessel was registered at the custom house in the port of Hamilton the 8th day of April 1847, and is of the bur- then of 232jY5> *"d which said certi- ficate is under the hand of John Da- vidson the collector of and for the said port of Hamilton, as on reference to the said certificate will fully appear," was not a sufficient compliance with our Ship Registry Act 8 Vic. ch. 5, sees. 2, 7, 13, and that therefore the indenture of sale was void. The recital was held insufficient in giving the tonnage alone of the vessel which could not be said within the terms of the 13th section of the act to be such a de- scription of the vessel as to shew the identity of the vessel transferred with that describe.' in the certificate of re- gistrj'. Sherwood ct al. v. Coleman, vi. U. C. R. 614. SHIPPING. See Navigation. SHORE. See Crown Grant, 9. ^m mi m SIMILITER. SIDE LINES. NIMIUTUOUS LiqUOKS. I copy oi' tl>e (lenuirrer upon the plain- Sreliovymnv Link Commissioners, ' If' ^""Z"^"' ^- ^'^'"'^'^ '^^ "^'> '''' 4.,:").— FUF.DEKICKSBLUGH.— KlNGS-i • ^' "" ^''^' Tox (Township ok). Statute of Limit dtions.'] — Tlie Stn. tute of LimituiidiiH applies to lands occupied by parties allor haviiii^ run side lines, altliou|ili it appear on a new survey that the oriirinal side lines were run erroneouslv. Dcnnisnn v. Ckcio, Trin. Term, (i'&t 7 VVni. IV. SIMILITER. See Judgment as in case of Non- suit,!. 7,8, 9, 10, 11 ; III. 2, 3. Compelling fUdntiff In comjihte tlic issue.'] — 1. It is irres;nlar to rule the plaintilV to enter the issue ; the proper course is to demand a similiter, and if it be not ^iven, to siun judj;ment of non pros, heulnj v. Loitcks, ii. U. C. R. 178, Trhi. Term, de- mur.'] — 2. The plaintiff replies de injuria to the defendants plea, con- cluding to the country, with an &c. The plaintiff makes up the nisi prius record, adding the similiter, iVc. Ten days after the assizes had commenced, and a month after replication had been served, the defendant demurs to the replication : the plaintiff proceeds with the trial and has a verdict: the defen- dant moves to set it aside for irregu- larity, there being no similiter on the files of the court and the plaintiff pay- ing no attention to the demurrer : Held, that under the rule of court, number 19, Easter Term, 5 Vic. there was no necessity to fde a similiter : Held also, that under the 3Cth rule, Easter Term, 5 Vic, if the defendant wished lo de- mur to the replication he might do so by serving within the proper time a SLANDER. See LiUKi. and Slander. SMUGGLING. See Customs' Act. — Revenue Laavs. SODOMY. See LiBEi. and Slander, II. 2. SOLICITOR OF SHERIFF'S COURT, SCOTLAND. Sec ATTOUNr.Y, IV. 1. SOLVIT AD DIEM. See Payment, 2. SOLVIT POST DIEM. Sec Payment, 2. — * — SON ASSAULT DEMESNE. See Assault and Battery, 1, 3. SPECIAL JURY. Sec Costs, II. 12. — Jury, passim. — • — SPIRITUOUS LIQUORS. Sec Conviction, I. 6. 24 Geo. II. ch. 4.6.]— 1. A shop- keeper in this province may recover LiquoHs. STATUTES (CONSTRUCTION Of). STATUTES (CONSTHUCTl<»N OK). 407 r upon the plain- Forger cl uL, iv. )KR. Ling. ^T. — Rkvknle s. MY. LANDKR, II. 2. ' SHERIFF'S OTLAND. ;i.Y, IV. 1. D DIEM. IK NT, 2. ST DIEM. lENT, 2. r DEMESNE. > Battery, 1, 3. , JURY. — ^JuRY, passim. LIQUORS. noN, I. 6. t6.] — 1. A shop- ince may recover for spirituous liquors sold in less (junn. titles than to the value of t\v(Mity xhil- lingr* ata tiuio. LcifJt v. Wiliis, Eas- ter Term, ti Will. IV. 2. The British statute 24 Geo. II. ch. 46, disallowing the sale of spiri- tuous licjuors at one time of quantities of less value than twenty shillings to be consumed out of the shop, is not in force in this province. Ilartley v. Hearns, Trin. Term, 5 4s (i Vic. STAKEHOLDER. Sec Gaming, 1. STATUTE LABOR. See Distkict Council, 17. A party, to save himself from fine, must perform when called upon, his statute labor within the division of the township in which ho resides. Gates V. DcDeuisJt, vi. U. C. R. 261, STATUTE OF FRAUDS. See Fkaubs (Statute op). STATUTE OF LIMITATIONS. Sec Limitations (Statute of). — * — STATUTES (CONSTRUCTION OF). See Customs Acts. — Frauds (Sta- tute of). — Indemnity Act. — In- terpleader. — Limitations (Sta- tute of). — Penal Statute. — Petty Trespass Acts. — Ship Registry Act. — Testatum Act. Public or private.] — 1. The sta- tute vesting the property of a particular bank in the hands of commissioners, with power to hear and determine claims made upon the bank by credi- tors, though stated in the preambU^ to 1)0 made " on behalf of a great portion of the inhabitants of the Province," was not considered by this court as a public statute. Murklainl ct al. v, liartlvt, Tay. U. C. R. 185. Forfeiture — Waiver and cofUinu- ance bij the lrgisluturc.]^2. Sonble, that when an act of the legislature has become forfeited by non-fullilment of some of its conditions, the legi.sla- ture may waive the ibrfoiture, ami by special enactment continue the exis- tence of the act. The City of Toronto and Lake ILnon llai/mul Company V. Crookshank, iv. U. C. R. 30!). Recital of the statute being 2^'ixscd at the prayer of parties interested.^ — 3. SenMe also, that when a statute uinending an originu! statute recites that it has been granted ui)on the prayer of the parties interested in the original statute, it must bo taken upon the recital as conclusive that each in- dividual interested in the original sta- tute was concurring in the passing of the amended statute, lb. Recital in pleading. I"-^, To re- cite certain statutes as statutes of the province of Canada, when they are statutes of the province of U/)per Canada, is bad on general dcinuirer. Huron District Coiincil v. The Lon- don District Council, iv. U. C. R. 302. 5. It is also bad on general demurrer to refer to any statute as having been passed in two of the years (as the 4th & 5th) of Her Majesty's reign. lb. [Upholding Gibhs v. Pike, viii. M. & W. 223. It may, however, be reciied as a statute passed in a session holden in both years, lb. In pleading, the whole of the title must be stated, thouiih it comprise several other sub- ject matters besides that to which the pleading properly relates. Beck v. Beverley, xi. M. & W. 845 ] Mis-recital of private act — De- murrer.'] — 6. Semble, that the mis- recital of the title of a private act of parliament is no ground of demurrer. Ferric v. Jonesetal., v. U. C. R. 504. 408 STATUTES (CONSTRUCTION Of). }((,( g In tho following Table of Statutes, the words in sMAfx capitals denote the title in this work under which tho case referred to occurs, whilHt tho words in Uulics give the name of the cue itself and the report where it may be found, without referring to the digest. 6 Edw. I. ch. 5— VfASTE— Taylor v. Taylor, Easter Term, 1 Wm. IV. 23 Hen. VI. ch. 9— Limits, II. 1— Campbell v. Lemon, ii. O. S. 401. 6 Hen. VIII. ch. 9— Forcible Entry etc., 2— Rex v. McHeavrey el al., and MitcheUt. Thompson, Mich. Term, 1 Vic. 32 Hen. VIII. ch. 9, sec. 2— Maintenance (Statute of) — M the cases under the title. ' Verdict, 3—Jieasley qui lam v. Cahill, ii. U. C. R. 320. 33 Hen. VIII. ch. 20, sec. 2— Treason, 2~1)oc dem. Gillespie v. Wixon, v. U. C R. 132. 5 Eliz. ch. 4— Apprentice, 1,2 — Fiih v. Doyle, Dra. Rep. 340, and IfeUinghamv, Wilson, Easter Term, 3 Vic. ._ Magistrates, 9 — Shea v. Choat, ii. U. C. R.211. 13 Eliz. ch.5 — Fraudui-ent Deeds etc., passim. 18 Eliz. ch. 5— New Tiual, IV. H—likeker v. Meyers, vi. U. C. R. 134. 27 Eliz. ch. 3 — Fraudulent Deeds etc., passim. 31 filiz. ch. 3— Dower, II. 13 — Bissonett et ux. v. Radenhurst, Mich. Term. 1 Vic; 43 Eliz. ch. 6, sec, 2— Costs, VII. 1, 2, 3, 4. 21 Jac. I. ch. 12 — Constable, 1 — Brown v. Shea, v U. C. R. 141. ^DivisioN Court, 3— Davis v. Moore et at., ii. U. C. R. 180. Sheriff, I. 22—Fraser v. Dirlcson, v. U. C. R. 231. 21 Jac. I. ch. 16 — Limitations (Statute of), II. "28 — Doe dem. Dunlop v. McNah, v. U. C. R. 289. lb.. III. 3— Russell et al. v. Robertson, i. U. C. R. 235. 16 Car, II. ch. 7 — Gaming, 1 — Sheldon v. Law, iii. O. S. 85. 22 Car. II. ch. 9— Costs, 1(1), 20— Lake v. Briley, v. U. C. R. 307. 29 Car. II. ch. 7 — Sunday, 1 — Betliune v. Hamilton, Hil. Term, 4 Vic. 3 Wm. & Mary, ch. 5— Distress, II. A— Stoddard v. Orderly, Hil. Term, 4 & 5 Vic. 8 & 9 Wm. III. ch. 11— Penalty, 2—Mnslie v. Chapman, v. U. C. R. 3ia 10 & 11 Wm. III. ch. 17— Gaminc, 6,7— Clarke v. Donelly, Trin. Term, 5 & 6 Vic. 4 Anne, ch. 16, sec. 5— Costs, VII. 5—McLrod v. Torrance, iii. IT. C. R. 174. ch. 27 — Account (Action of), 1 , 2, 3 — Gres;ory et ux. v. Conotly, vii. U.C.R.600. 8 Anne, ch. 14, sec. 1— Distresj, I 15 — Brown v. Ruttan, vii. U. C. R. 97. 9 Anne, ch| 14 — Gaming, 1 — Sheldon v. Law, iii. O. S. 85. 6 Geo. I. ch. 18— Bubble Acts — Bank of Montreal v. Belhune, Easter Term, 5 Wm. IV. 2 Geo. II. ch. 23, sec. 23— Attorney, HI. passim. ch. 2a — LiREL and Slander, III(l), 6—Caverley v. Caverley, iii, O. S. 338. ch. 28 — Distress, passim. 4 Geo. II. ch. 28 — Forfeiture, I— Doe dem. Cubitt v. McLeod, Mich. Term, 4 Vic. 5 Creo. n. ch. 7 — Alien, 5, 6— Doe dem. Richardfon v. Dickson, ii. O S. 292, and Woodet al. V. Campbell, iii. U. C. R. 269. Covenant, 11(2), \5— Nugent v. Campbell et al., iii. U. C. R. 301. ^Estate, 5— Doe dem. Jarvis v. Cumminc;, iv. U. C. R. 390. . ExECUTon and Ad.ministrator, IIL 4, 5, 6, 7. New Trial, II. 22— Doe dem. Burnham v. Simmon', vii. U. C. R. 196, Scire Facias, 1—Patrrson v. M'Kay, Tay. U. C. R. 47. 7 Geo. n. ch. 20, sees. 1 and 3— Mortga(;e, 2,6, 11. 9 Geo. II. ch. 39— Mortmain— Doc dem. .Indcrson v. Todd et al., II. U. C. R. 82. 11 Geo. II. ch. 19— Distress, I. 9-McJrthur v. Walkley el al., Mich. Term, 4 Vic. 12 Geo. II. ch. 28, sec. 4— Gaming. 7—Ctarlcc v. Donelly, Trin Term, 5 & 6 Vic. 13 Geo. n. ch. 19— Gaming, 1,2, 3, 4, 5. 14 Geo. U. ch. 37— Bubble Acts— JBanA; of Montreal v, Belhune, Easter Term, 5 Wm. IV. 18 Geo. II. ch. 34— Gaming, 1, 2. 3, 4, 5. 20 Geo. II. ch. 19— Laborers— WAcZan v. Stevens, Tay. IT. C. R. 67. > Magistrates, 9~Shea v. Choat, ii. U. C. R. 211. 22 Geo. II. ch. 46, sec. 11— Attorney, 11(1), 7— Rex v. Bidwetl, Tay. TT C. R. 670. 24Geo. U.ch. 40— Spirituous Liquors, \,2—Leith v. Ulllis, Easter Term, 6 Wm. IV., and Hadley v. Heard, Trin. Term, 5 & 6 Vic. ch. 44— Gaoler, 4 — Fergusson v. Mams et al, v. J. C. R. 194. Sheriff. I. 23-/6. Street Surveyor— fl/(7'(ir/. ch. 5 — Absconding Debtor, passim. . ch. 15 — Port Burvvkll Harbor Company — Jcnkinsr. Port Burwell Harbor Company, Mich Term, 3 & 4 Vic. _ch. 35 — Partition. — ./111 the rases. 3 Wm. IV. ch. 7, sec. 1 — Canada Company — Cooper v. The Canadtt Company, Easter Term, 1 Wm, IV. 8 — Shk.rikk, V. passim. 17, (Pnv. Act.) — S'. Lawrence Canal — Tait v. Lavgley et al , Easter Tojm, 3 \'i<:.. ch. 59, sec. 72, (Imp Stat.) — Customs Acts, l-'Lewisv. Kirby, i. U. C. R 426 1, sec. 16 — Limitations (Statute of), II. passim. sec. 17 — DowKii, II. 4, 5 — German v. (hooms, vi. U. C. R. 414, and MrCkllan el nx. v. Mexgalt ct al. vii. U. C- R. 21. Limita- tions (Statutk ok), 11, 1 — Doe dem. McKay v, Purdy et al., Easter Term, 4 Vie, sec 20 Distress, I .'} — McClenaglian v, Bidxr, i. U. C. R. 26. sec. 47— Deed, 111. 7,8, 14. sec. 48 — KsTATE, 1 1 — Doe dvm. Berringer v Hiscott, Mich. Term, 3 Vie. Joint Tenancy, 1 — Doe dem. Shuter et al.v. Carter, Hil. Term, 2 Vic. — sec. 52 — Limitations (Statute of), II. 4 — Doedem.Lyonfiv. Crauford, luister Term, 5 Vic. Title, 17 — Doe dem. Baldwin v. Sloiu:. _sec. 53— Costs, VII. ti—MrLichlan. In re, iii. U. C. R. 331. Landlord and Tenant, II. 2et seq. 4 Wm. IV. ch. 3 — Insolvent and Insolvency, jvissim. ch. 4, sec. 12 — Assault etc , 5, 6 — Hi'my v. Simpson.Trin. Term, 1 & 2 Vic, and Delornr v. MrDonell, Easter Term, 2 Vir. ' Petty Tiikspass Acts — Iklong v McDonrll. Easter I'crrn. 2 Vic, spc. 21 — Costs. VII. 7—,/lrmour v. Bosu-ell et al., Triii. Term, 5 & 6 Vic. ch. ,5 — Bail, I. 3 — MrfCvnzie v. Marnab. Eas'er Term, 2 Vic, ch. 7 — District Court. 3, 4 — IVhrrler v Simecl al, iii. U. C. R. 265, and Foster v. Miller, v. U. C. R. 509 Replevin etc, passim. ch. 10 — Limits, passim. ch. 12— Fences, I— Line v. Mulholland et al., Easter Term, 6 Wm, IV. ch. 18— CoNvicvioN. 1. 6—Rexv. Ferguson, iii. O. S. 320, and Wilson v. Gra- bieletal.,v U. C R. 227. ch. 23— Toronto (City of). 1 — Harvey v. French, Easter Term, 3 Vic. ch. 32, sec. 5— Port Credit Harbor Company — Port Credit Harbor Compa- jii/ v. Junes et al„ v. U. C. R, 144, 4& 5 Wm. IV, ch. 89, sec. 25, (Imp. Stat.)— Customs Acts, :i—MeKenzie et al. v. Kirby, Iriii, Verm, 5 & 6 Vic. 5 Wm. IV. ch. 1, (generally.;— Bills of ExcHAwrs etc., VIII, 7—SiJlon v, McCabe et a! . vi. U. C R. 394. see. 1— Costs, 1(1), Ifi; VI. sec. 2— Bills of Exchange etc, V. 16 — Small v. Rogers et al., Mich. Term, 6 Vic, — —Bills of Exchange etc,, V. 36 — Malloch v. Aor sec. 13— Abatement, 2—Richmmdet al. v. Campbell, iMich. Tc; m,2 Vic. 5 Wm. IV. ch. 3, sec. 2— Ejectment, 1V(2), 4, b—Rcsina v. Kdly, Trin. T<^nii, 4 & 5 Vic. P. C, and Watson v. Dillingham, Easier Teim, 7 Vic. . sees. 2, 3 A: 4 — Insolvent and iNSUi^VENCv, ijasssim. _ oil. — .\bsconijing Debtor, passim. 5 & 6 Wm. IV. ch. 62, (Imp. Stat.)— Deed, III. 9— Lyons In re, Hil. Term, 7 Vic. 6 Wm. IV. ch. 4, sec 2— Mandamus, 18— Rcgina v.McConnel, Hil. Term, 7 Vic. sec. 18— Insurance, passim. 7 Wm. IV. ch. 3, sec. 6— Ahatement, 1, 3, 5. sec. 8— Judgment of Non Pros, 3 — Hart et al. v. Boyce, Mich Term, 5 Vic. Variance, 'J—Ketchum v. Jones el al., v. U. C. U. 460. sec. 9 — Bills of Excham-.k etc., V. 30, 31, 32. sec. \n — A.MEND.MENT, II. pussitll. sees. 18 & 19 — Witness, 15 — Roy v. Hamilton, Hil. Term, 5 Vic. — - — sees. 24 *c 26 — Costs, V. — .dll the cases. sec. 29 — AiuuTRATioN AND AwARD, II. passim. Mesne Profits, 5 — Green v. Hamilton, Easter Term, 3 Vic. —■ ch. 5, sec. 1— Bills of Exchange etc., II. passim ; 111. 3. -sec. 3— Usury, lO—fieddesv. Culvert et a/., iii. U. C. R. 162. ch 8 — Seduction, j)assim. -ch. 1((, sec. 2— .luRY, 8— Cole, In re, Trin, Term, 5 & 6 Vic. sees. 8& 10 — Recognizance, passim- ch. 13— .ToiNT Stock Company, I —Hall v. Buck, Trin. Term, 2 & 3 Vic. -ch. 14. sec. 14 — Corporation, passim. ch. 15 Attorney, JV. \—]\l(ifara In re. ii. U. C. R. 114. -ch. 16— King's College, 1. 2— King's College v. Denison. v. U. C. R. 203. -ch. 34 — Bank of British North America, 2 — White v. Hunter, Easter Term, 4 Vic. -ch. 54— Binhrook (Township of)— Doc dcin. Crooks v. TenEyck, vii. U. C. R. .581. 1 Vic. ch. 7, sees. 1*& 2 — Executor and Administrator, I. 11 — Gilmore v. Crooks d al., Hil. Term, 7 Vic. ch. 10— Treason, 2— Doe dem. Gillespie v. Wixon, v. U. C. R. 132. ch. 12— Indemnity Act, 1, 2— Hyatt v. Anger, Easter Teim, 2 Vic, and Lockhnrt V. Dixon, Hil. Term, 3 Vic. ch. 16 — Distress, II, 5, 7 — Stoddard v. jlrdeiley, Hil. Term, 5 Vic, and Nichol v. Mooncy rt al., i. U. C. R. 199. ch. 17, sec. 2— Mandamus, 3, 1-l—Rex v. T/ie Magistrates of Niagara, Tay. U. C. R. 542, and Cornwall v. Baby. Hil. Term, 5 Vic. ch. 19 — Boundary Line Commissioners.-.//// the eases. —sec 3 — .VIanda.mus, IC — Boundary between Eastern and Johnstoum Districts, In re, .Midi. Term, 6 \'ic. -ch. -ch. 2 Vic. ch, ch. 3 Vic. ch. -ch, -ch. -ch. -ch. -ch. 21, sec. 18— Rate CoLLv.croh—liegina v. Ryan. vi. U. C. R. 296. sec. 27— Arhest, IV. U)—Croukhite v. S(>merrilk,\n. V. C. R. 129. 30, (Priv. Act) — Kingston Marine Railway Cumi'>\y.1. 2,Z— Kingston Mu- rine Railway Company v. Gunn, iii. . . C. R. 368. 6, sec. 1 — See 59 iim. 111. cli. '.i, siipia. 15, sec 2— Indian Land.s, 1. 2— Little et al. v. Keating, Hil. Term, 5 Vic. 8— Bills of Exchange etc., IV. r^—Ranwlell v. Teljlr, v. U. C R. 508, and Niirdhcimer el al. V. (fReilly el al.,\']. U. C. R. 41.1 Bills of Exchange etc., V. 1 1 , 1 6. 21 — Bank of Upper Canada v. Gwynne el at., iv. U. C. R. 145, and .S';m(/// v. Rogers it al., Mich. Term, 6 Vic, and Grant v. Eyre el al., ii. U. (;. R. 426. Pleading, II. 18.— /A. 9, sec. 9— Billiard Tmh.es— Church ijui turn. v. Richards, vi. U. C. R. 562. 11 — Houndaiiy Line Cummissionern. |ias.siin. 20, sec 10— Billiard Taiu.ks— Church ifui tarn. v. Richards, vi. U. C. R. 562. 31, (Priv. Act)— London ('I'owN of), 2 — The Board of Police of London v. Talbot, ii. II. C.R. 54.3. 5.3, sec. 17— Midland District Turnpike Trust, 1 . 2, 3. sec 27— Witness, 20— rHmmiHir.^ v. Glassup et ul.. i. U. 0. R. 364. -sec. 28— Tolls, l—O'Hara v. Foley, iii. U. C. R. 216. — ^ec. 34~ToLU, 2— iicgtmi v. Brmmi, iv. U. C. R. 147. 412 STATUTES (CONSTRUCTION OP). fir:! 3 Vic. ch. 74— Will, 11, 12, 13— Doc dem. Baker v. Clark, vii. U. C. R. 44. 4 Vic. ch. 2G, sec. 20 & 27— Assault .\nd Battery, i)—Miuldin v. Farley, vi. U.C.R.210. 4 & 5 Vic. ch. 3 — Division Court, passim. Notick of Actio.v, 1 — Kimble v. McGarry, JMich. Term, 7 Vic. ch. 7, sec. 3 — Naturalization — Doc dem. Cliandkrv. Tcwicr, vi. U. C. R. 216. ch. 10 — District (now County) Council, passim. ch. 18— Division Court, 1 — McGregor v. White, i. U. C. R. 25. ch. 25 — Larckny — McDonald v. Ccmeron, iv. U. C. R. 1. sec. 67— Notice ov Action, 8— McDonald v. Cameron, ii. U. C. R. 406, ch. 26— Gkneral Jssuk, 4— Moore v. Ihlditch el al. vii. ij. C. R. 207. Magistrates, G— Powell v. Williamson, i. tJ. C. R. 154. sees. 20 h 28— Assault and Battery, ^J— Madden, v. Farley, vi. U. C. R. 210. sec. 40— Notice of Action, li—Dcmjmy v. Dougherty et al., vii. U. C. R.313. ch. 27, see. 313— Appeal, G— Justices of the Brock District, In re, Mich. Term, (5 Vic. eh. 89. sec. 23— Flour— iJfg-ina v. Beekman, ii. U. C. R. bl. ch. 100, sec. 18 — Clkhov Rkserves — Ihjrcs v. Moure, v. U. C. R. 4, and Doe dem. Weisenbergcr v. McGtennon, v. U. C R. 138. 5 & 6 Vic. ch. 26, (Imp. Stat.) — Marriage— Doc dem. Brcukey v. Breakey, ii. U. C. R, 319. 6 Vic. ch. 27— Bank of Uppkr Caxada. — Ml the rases. 7 Vic. ch. 4, sec. 2— Hills of Exchange etc., 111. 18 — Smilfi et al. v. Hall, iii. TJ. 0. R. 313. ch. 10 — Bankrupt and Bankruptcy, passim. ch. 11 — Orhnance JIepartment, 1,2, ',i— Principal Officers of Her Majestifs Ord- nance V. Johnson, i. U. C. R. 198, Tully et al. v. The Principal Officers of Her Majesty's Ordnance, v. U. C. R. C, and Doe dem. Musgrove v. VEs- pcrance, vii, U. C. R. 343. ch. 16, sec. 54 — Foreign Judgme.vt, 12 — McPherson et ul., v. McMillan, iii. U. 0. R. 34. ch. 18, sec. 16— Lo\vi;r Canada — Doc dem. Parke et al. v. Henderson, vii. U. C. R. 182. ch. 29 — Common Schools, jiassim. ch. 30 — Interpleaoer, jiassiin. ch. 31 — Arrest. II. 11, 12; IV. S. Attachment, IIT. 2— Garrison v. Balkmll et al., i. U, C. R. 2. Bail, III. Vl—Harday v. Hall et at., ii. U. C. R. 276. REcofiNizANCE, i')—McDonald v. Weeks et al., iii. U. C. R. 141. -ch, 33 — Sheriff, II. passim. ch. 43, (Priv. Act.) — Naturalization — Doe dem. Chandler v. Tessier, vi. U. C. R" 216. 8 Vic. ch, 5 — Ship Registry Act. — .M the cases, ch. 13, sec. 5 — District (now County) Court, 1, 6, 9, 12, 13. sec. 20 -111., 10, l\—Cockrane v. Ei/reet al., vi.U. C. R. 389. >1— In., 7, H— Hamilton v. Shears, v. U. C. R. 309. sec. 23 — See section 20, supra. sec. 44— District (now County) Court, 2 — Easton et al, v. Longchamp et ah, iii. U. C. R. 475. sec. 50— See section 20, supra. sec. 51— Writs of Trial and Inquiry, 4, 5, 6, 7, 8. sec..54— In , 1,2,3. sec. 55— Ib., 3, 4, 5. Waiver. 2— Small v, Beasley, iii. U. C. R. 141. -ch. 22— Taxes, 10— Doc dem. The Earl of Montcashel v. Grover, iv. U. C. R. 23. -ch. 36 — Testatum Act, and cases there referred to. -ch. 37 — Division Court, b—Regina v. Patlon, Jiegina v. McCulloch, and Regina v. Moran, vii. U. C. R. 83. -ch. 45 — Sunday. — .111 the cases. -ch. 48, sees. 1, 8 & 18— Attorney. 11(1), 2— Alexander v. ./?. B. ii C. D., v. U. C. R. 329. sees. 4, 5 & 24 — Insolvent etc., 21— Feme el al. v. Lockhart, iv. U. C. R. 477. -ch. 62, sec. 17— Mandamus, 2'i— Regina v. 37ic Board o^ Police of Niagara, iv.U. C. R, 14!. _ch. 72. sees. 3 & 4— 1b. -ch. 83— Toronto and Lake Huron Railroad Company — Toronto and Lake Hu- ron Railroad Company v. Crookshank, iv. U. C. R. 303. STATUTES (CONSTRUCTION OF). 413 /. V. Hall. iii. U. C. 8 & 9 Vic. ch. 93, sec. 66, (Imp. Stat) — Customs Acts, 6—Morney General v. Warner, vii. U. C. R. 399. __ sec. 89, (Imp. Stat.) — Witness, 2"^— Attorney General v. Warner, v. U. C. R. 183. 9 Vic. ch. 9, sec. 1 — Ferry, R—Ives et at. v. Calvin, iii. U. C. R. 464. . ch. 2i; — L'l MMOfT tJCHoor.s, passim. ch. 34, sec. 6 — See 35 Ueo. III. ch. 5, sec. 2, supra. sees. 7 & 9— l>K.Et>, III. \')—Ilcgislrar of the County of York, In re, iii. U. C. R. 1S8. . sec. 16— Deed, III. 20 '2\—Keclc v. Ridout, v. U. C. R. 240, and Smith et at. V. Ridout, V. U. C. R. 617. sec. 21 — See 35 Geo. III. ch. 5, sec. 10, supra. ch. 37— Arbitration and Award, 1. 10; IIl(l) (i; IV(3),6,7; \ .^—Commit- Kioners of Puhlir Works v. Daly et at., vi. U. C. R. 33. ch. 40 — District Council, passim. ch. 8S, sec. 33— Alihon Road, Retina v. Haystead, vii. V. C R. 9. ch. 90, sec. 12 — Building Socikties — Doe deni. Barwick et at. v. Clement, vii. U. R. 5 19. lO&ll Vic. ch. 6— District Council, 18 — T[awkcslifiinv, The District Council of the District of Dalliousie, vii. U. C. R. 90. ch. 15, sec. 5— Clerk of the Chown and Pleas, 1 , 2 — Wlh v. James, v. II. C. R. 216, iiiul Whil,' V. Pitch it at., vii. U C. R. 1. Insol- vent etc., 20 — (ViV/csy/ic et u/. Nickerson, vi. U. C. R. 628. ch. 24 — Sef 9 Vic. oh. 37, supra. ch. 48 — Rilliard Tadles, '2— Church qui tiini. v. Richards, vi. U. C. R. (i()2. London (Town of), 'i—Balkwell , In re, v. TJ. C. U. 624. 11 Vic. ch. 14 — Gas Co.mpaniks, jiassim. 12 Vic. ch. 22 — Bills of K.\change etc., II. 12— Ridout et al. v. Manning et al., vii. U. C. R. 35. ch. 70— Witness, 25, 26—Doedetiu McDonell v, Rattray, vii. U. C. R. 321. Tessier, vi. U. C. R- 1 et al. v. I/mgchamp illoch, and Regina v. n-onto and Lake Hu- STAY OF PROCEEDINGS. See Arbitration and Award, VIII. 3. — Attachmr.nt, III. 3. — At- torney, 11(1), <>. — Bau., I. 5,7; II. 3, 12, 13.— Cognovit, 2, 3.— Costs, VIII. 9. — Demurrers, 17. Ejectment, VI. — Execution, (i. False Imprisonment, 4. — Inoem- nity Act, 1. — Mortgage, 'i, (>, 11. — Particulars of Demand, 1, 10.— Practice, II. 10, 43.— Pro- hibition, 1. — Replevin etc., 7. — Scire Facias, 6. — Sheriff, II. 2 ; V. 10, 11.— Title, 4,— Usury, 4. Wh^n ndebesins tonpcratc.~\ — 1. Semble: That proceedings are stayed from the time of making the rule to stay proceedings, and not from the tin 3 of service of the rule. Patter- son V. Attrill et al., iv. U. C. R. 39.5. Condition p>-ccedent to the opera- tion of the rule.} — 2. A rule was made in term, that on payment of a certain eum and costs, further procee- dings should be stayed on the verdict given in the cause at the assizes pre- ceding r Geo. IV. ine williin the pro- JII. c\u I, which anythini? done nn- be broutiht within r is lie entitled to ier 2t CJeo. H. ch. •entitletl to thepro- ite ay to the action n six months. 3fc- igcM,llL0.S.r3. ETS. SHWAy. SUBPiENA. SUBMISSION. See Arbitration and Award, I, SUBPOENA. Sec New Trial, III. 4.. Witnrss — Thiie for uttendanrc under sti//p(riia'] — 1. VVHien a witness is siilipo'iiaed to attend the assize U7t a furtkidar daij, and not iVoni dtnj to day, ho rannot be attached I'or dis- obedience to the siibptena if lie were present on that day l>ut went away ailerwards. llidnuUe v. Puivcll, In re. P. C. Hagermaii, J., iii. U. C. R. 128. [It would spcm that the learncl juiliie in this case doubted that the sum piiid tlie wit- ness would cover his oxpf'nses for a lousier period than one day. In Scliules v. Hilton, x. M. & W. 15, it was held that a suhp(Diia re- quirinii; a party to atiend llie trial of a cause on the commission day of the assizes extended to the u7ir)/(' assi/.es. and that it need not as> on to require his attendance from day to day until the cause be tried.] Ismrd at Nisi Priiix — Court in banc, no jwirer.^ — 2. The Court in banc, have no ])ower to punish by at- tachment a witness disobeying a sub- pcRna issued at Nisi Prius by the clerk of assize. Retina v. Kerry iii. U. C. R. 247. 3. Semhlc : The Court at Nisi Prius might, upon a ])roper application, pun- nish a witness for contempt of its authority in disobeying a subptena. Ih. On criminal informcdion — teste and relurn.'\ — 4. It is not necessary that there should be fifteen days be- tween the teste and return of a sub- poena on a criminal inforintitioii where the venue is laid in the Home District, iic^^wa v. C/ao/.'.s-, Easter Terin, 3 Vic. Iiisiifpcie/iaj of time — Attiiehmcut refaxed.'\ — 5. An attachment for not obeying a subpoma was refused ajfaiiist a witness who reside»l twenty-five miles from the assize town and had been subposnaed ouly the day before SUNDAY. 415 the cause was tried. Fairclatm dem. Thompson v. Ihitrrum, Mich. Term, 6 Will. IV. [To gi'ound a motion for an attachment aj^ainst a witness, the affidavit must state that the parly was a material witness — Finleij V. Porter, ii. .M. & W. 822: yet the evidence beiriij immaterial will not justify wilful dis- obedience. Scholcst V. Hilton, x. M. & W. 16, and Chupiiian v. Davis, 3 M. &. G. 609.] SUMMONS (WRIT OF). See Bau.iff, 3.— Dower, II. 12, 13. Paki.iament, 2 et scii. — Process, passim. — Replevin, etc., 3. SUMMONS OR RULE TO COAI- PUTE. Sec Attorney, IV. 4. — Practice, U.S. SUNDAY. See Arrest, 1. 3 1 . — Attorney II( 1 ) 3 — nii,i.s or Exchange, etc. HI. 10.-Moni:y had and received, 14. Exercise of ordinary caning."] — 1. To avoid a contract made on a Sun- (biy, it must be shewn to be in the ordinary callinir of the party making it. lictknnc v. Hamilton, Hil. Term, 4 Vic. Salcs^ — 2. Under the second clause of the 8tli Vic. ch. 4,'), all sales o( real and personal property made on a Sundav arc void. Lai v. Stalls vi. U. C.R.506. Mortgagcs\-'i. Scmhh: That mortgages would not be void. lb. 4. The giving or taking in security on a Sunday is not void as a " buying or selling," within the provincial statute 8 Vic. ch. 4:"), sec. 2. Wdt v. Laid al., vii. U. C. R. 535. "SBtKmmm^^sm 416 SUKKENUER. SURRENDER. SUPERSEDEAS. See Absconding Dkbtoii, 4, .'), 12, 22. — Auiu'.sT, II. S, et soq. 111 li^; SURETY. Sec ABScoNnixc Dkbtor, 9, Ifl, — Bond, [I. 17. — Division Cockt, f), 6. — ExF.ciTOK inc., I. 12. — Li- mits, II. If). — I'lUXCIPAL AM) SiiiETV. — Replevin etc., 7. — Scire Facias, 6. — SherikI'', V. SURRENDER. Src Distress, II. (J. Surrender, hij act of knn, by mailer of mord.'] — I. A lonant in fee may KUiToiuler his estale back to the Crown by act ami o})cration ofiavv. as by acce[>tiii<]; a new ixraiit for tlie same land, or ho may ^^urroll(ler by matter of record ; l)iil a surrender not of record, or a surrender by record, founded on an invalid title, is insnlli- cient. Doc ilem. MeDoiie//. et al. v. MeBouiiall et al., iii. O. S. 177. Conveyance in fee to /essee a sur- render of leas(\\ — 2. A conveyance in fee from a lessor to his lessee diiriiifr the term, thoii.v. received by lilm, 1" land overflowed water, being and 37, 38, 39, in the the township of by admeasure- re or less, and more nl ill the plan there- d, to the intent that premises covered )rever hereal'ter be 1 by }lis Majesty, 'ssors, free from all icrc was attached \n verified by one r who made it, and by him on the face !»e words — " I do the above diagram ual purvey, and in ,vith the deed held nd that there are permanently cover- if the Ridcau canal." )m one side to the an irresrular line, •10 side, (which was the lots,) the 462 to the government, )y the overllowing n the other side, or , 123 J acres which ." Afterwards A. II those certain par- township of Kings. rear parts of lots laid down on a cer- by Mr. Burke the ill concession of the on, and by the said itain V2,i-\ acres." }red to the Crown t) A. at a price per contain 4-62 acres e's survey ; but it ut that the plan did 'lie fact, the survey laccurate, for that SURRENDER. there was not as much land covered with water as the plans represented by lil acres. Held jier Car., that the deed made to B. carried only such land (123. i acres), as upon the scale of measurement upon which the plan was framed formed the area in rear of the irreeular line drawn across the lots, without regard to the fact of what portion of the lots was actually covered with water, and that the whole 462 acres, had, under the deed of surren- der, vested in the Crown. — Robinson, C. J. disseiuiente, who held — 1st, that the plan must be regarded as a part of the deed, and read as part of the description in both conveyances; 2ridly, that the deed to B. taken with the plan, shewed clearly that what was meant by the " rear parts of the lots" to be conveyed to B., was all the land back of the lino which marked the rear or northern boundary of that before surrendered to the Crown for the use of the canal ; 3idly, tiiat in order therefore to determine what could be held under this grant of the rear parts, it was necessary first to de- cide what had passed to the Crown by the surrender; 4.thly, that by the sur- render the Crown only acquired that portion of the land which was covered with water, both the dood and the plan .shewing that nothing more was inten- ded to be passed ; and that the sufveyor having laid It down inaccurately on his sketch according to his s>.'ale,and hav- ing miscalculated the number of acres was a mere falsa demonstratio, which could not overrule the more substantial part of the description: 5tlily, that the effect of tlie first deed was to vest in the Crown all the portion of the lanil overflowed by the canal, and that the second deed to B. conveyed all that lay in rear of the water mark. Doc dem. Gildcrslceve v. Kennedy, v. U. C. R. 402. Evidence to support plea of surren- der,] — 4. Tiie mere allegation in a j)lea •< of a surrender of a term of yeafs 3 G SCRVBt. 417 I to the defendant by the plaintitf," ! makes it incumbent on the defendant j to prove an actual surrender made by the plaintitr by deed or note in writing, sulficient umler the third clause of the Statute of Frauds. Where the sur- render relied upon is one produced by act and operation of law, it must be so I ()leaded. McXeil v. Train, v. U. C. R. 91. Covenant hy landlm-d — Pica by tenant of a surrender to the Queen by a third pur/ y.] — 5. To an action of covenant by a landlord against his te- nant, it is a bad pkea to plead a surren- der by a third party (whose legal estate is not shewn to have been derived from the plaintiflT) to the Queen, and that therefore the land at the expiration of the lease did not belong to the plaintiff. Russr/l et ux. v. Graham, vi. U. C. R. 497. SURROGATE COURT. See Arrest, II. 7. — Letters of Administration. SURVEY. See Boundary Line Commissioners, 2, 3, 4, 5, 6 — Frkdericksburgh. Kingston (Township of). — Mon- uments. — Side Lines. Alteration of original postsprevious to grant — 59 GVo. III. ch. 14.]— 1. In reffard to a survey made before the r)9 Geo. II [. ch. 14, the provisions of that act will not have the effect of ne- cessarily confining the grantee to the land designated by the posts planted in t!ie original survey, if the jdan of survey had been altered by the govern- ment before the issuing of the patent and before the passing of that statute ; therefore, where the government had added to the ends of the several con. cessions a strip of land which the sur- veyor had leftunsurveyed between his rvam 418 TAXES. TAXES. concessions and the adjoining town- ships, and in conscquenco of such ad- dition had clumped the niiinbering of the lots tliroiii;hout tlio concessiop : He/d, that tiie {.nants issued in accor- dance wilh such rel()iiiu'd survey would cowr the land winch the p^v- eriinient iiite'iidcd to be included within the liouMila I iese.N pressed in the patent, th(iui;li the minihcr ol" the lots would ni)teorrespoiul with the |)ole for taxes-l—l. lot been described eneral is not liable . Doe (hm. Bell 7 Wm. IV. escribed as granted" encrnl are ta.'jable ch. 7, although no them have ever is- IcGillis V. McDon- 4. Vic. it hy purchaser — i/pjiarthis title ]— ly the purchaser of !s at sheriff's ^a\e, rh. 7, it is necessary that the writ to sell le treasurer's return )( taxes for eight re was no sufficient to levy the amount; i also necessary to ul had " been des. " Doe iletn. Bell . III. 0. S. 243. V. Orr, Hil. IVim, 7 I. McGiUit V. McDonald, t shew that all the es were attended to, it the ^herill' who sold them, to against the 2t)0 acres as returneii hy recover the value nl' his i-liare or in- tlie surveyor t.'en?ral, there had always terest in tlieni. Ecc/cstoiif v. Jcirris, been an aniplu distress upon the j)ie- i. U. C. R. ;}70. mises, and it was |.i<-ved at tlie trial ' Kjeclmi.u—riCdfof mtvah.Hntvr, tlial the paities who had paid taxes on „.],en ilispcnscil /ri//i'.]—2. Tn ejcct- tiie lot haviii:; title io the whole lot ot „^^,,^^ i,^ ,,|,e tenant in toiiimoii .T.'ainst 200 acres, had jiaid taxes on the whole i,iiotlier, if it he shewn that the 200 acres, and not sepaiatelv on any men consent rule has heen enter part of it : IlJi/. lliat under these cir- p|.,,„f of an actual ouster is (h- cumstanees the sale i>( the north half ^.ith. Ihr ,hm. Chirkson v! lins. of lot 22 in hroken trout IJ. 100 acres /./^,.^._ ;i, (]_ q^ [(, 75^ was illeiial and void en tsyo .rounds , 7.; „ ". ^_ ^^ j ^„, ,^,^,„^^ -1st, because it ap|.eared that not- „, ^, -^^^^ nuUhn-.U-.^. \Vher.> (lie vvithslandin;: ,|,e relu-i '"••uie by the ■ |,,.,^„„. ,„,^, ,,^^. ,,;'.,..„^,.,,,, ,„,,„,,, treasurer, there was no arrear in tact no-se.-seii of taxes suhjodinir the laml to «'le ; ji^^.j^^ teirether and 2ndly, because at the time ol the sale there was a sullicient (hstress on the premises. Bar dcni. l'j)j)er v. Edwards, v. U. C. R. 591.. farm, n!4reed to W'lk iiid di\ide the protits ari iiijj: from them at the end of the TENANCY AT SUFFERANCE. See OvERHOLUiNc Tenant. TENANCY AT WILL. See Ejectment, I. lf),22.— Hdiu, G. Landlord and Tenant, I. 7. S ; | IT. 2. — Limitations (Statute of), II. 13, 2-t Title, 1. TENANCY FROM YEAR TO YEAR. Sec Ejectment, I. 16. TENANCY IN COMMON. See Account (Action of), 1, 2. — Amendment, II. 17, 18.— Deed, II. 9.— Ejectment, II. 1; III. 5. Executor etc., I. 2. season, and iiefore the harvest the ile- ' Icjndant was disj'.osscssed of his f;iim by ejeclment, and tiie plaintifl' tlicio- U[)on uave him notice that he would not divide iiis cro])s with him,nolwith- standii;^ which the defendant entered the plainiin''s farm and took away his share of the crop ; I ft///, that the phrn. till" could not maintain tri'spassajiaiiisl him. Wcmp v. Mormon ct at,, ii. U. C. R. 11 (i. \. One tenant in common may commit trespass hy expellii.s: his co- tenant and takin<;lhe whole enjoyment of the estate wron^ffiilly to himself. Veirie v. Tuylour, iii. U. C. R. loT. TENANCY IN TAIL. See Estate, j2 et seq. — Executor etc., I. 4. — Lease, II. 1. TENDER. See Arbitration hyn Award, VI (2), 8.— Contract, 13. lER. sr llie commonpro- on airainsf, unc te- lilt in loinnion of liL'CM sdltl iiiitler an s co-'iiiniit's ahso- (>1 niMiiitiiiii trover who ^M tlioni, to dl" liis ^ll;lR• or \n- •^tc/rsloiif V. Jarris, of of mh'rifi.ifn/vr, '///'.]— '2. Ill ojtct- iii coiiniKHi ML'.'iinst un that the S I)('('I1 (MltlT oiistrr is ili- (7(i/kso?i V. Jli's- /'. hi/ n7ie t.ciuint —W. ■VVIicrc llie Ibiiilntif liciii;; eni:li 111, n;ir('('il to wi'ik I (lisidc the piolits at tlio end of liie the liarvesl tlie ile- jssossfd of liis faim the plaintifl' tlicie- lotiro that ho would s with him.iKjlwith- ■ tiefciulaiit ciitcrod 1 and took away iiis //c7^/, thattlioiiia'n. lain tiN'spassajraiiii't lormnn ct nl.,, ii. U. ill common may ly oxprllii,;: liis I'o- ic whole enjoyment )ii;;;fully to liiinsclf. , iii. U. C. R, 4-57. S. IN TAIL. t spq. — ExKCi'TOR Lf.ask, II. 1. DER. /»>D AWAKD, VI )NTRACT, 13. TENDER. TERM^S NOTICE. 421 Sufficienaf.'] — 1. A plea of tender' place, held suflTirionton j!;encral demiir- is not supported by proof of an olfer i ror. Thompson v. Hamilton, Hil. by the defi'iidant to hriiiy; iiioney which ] 'I > rni, 7 Win. IV. he does not produce, although the; Airrne/it, of sum tendered being plaintiir says that lie will not accept !,,„//,v/,.y,/.]_r). Where in trover tor the sum iiientioned unless a further j hi'Hs of e.\chani,'e the defendant pleads sum he paid. Tliwiipson v. Huiiiil- n \wn hy airreement, and the plaintiff ton, Kaster Term, G Win. IV. | rejilied a tender, without averrin<; 'hat flam com' with ihe unimint of ^our ' the sum tendered was sulhcient — the bill," lie am .Mill l..ii.- Ifss iluiii ilie smii ivpliealion was held had on treneral 0/iicr, 1 Q. B. 4i);».] demurrer. (on'j,ef v. liutdiuu^on, Opimlunity of Tnsprction.'] — 2. Hil. Term, 7 Vie. A. sends a waL'tlon to U. to make the wood work : B. havini^ finished, sends the waj;2on in A.'s name to a hlaek- sniith for the iron work : IJ ;fets the watrgon back from the blacksmith : A. calls for the wat'ijon : H. allows him to remove the box from Iiis shop into the highway, but on his ii'turniiiir to the shop to take out the romainiiii: part of the wafiiion. B. refuses to let it \ro till he is jiaid his bill : A. holds in his hands a (piantity of notes and oilers to pay B. his demand if hi' would te" TERM'S NOTICE. Sec Amknd.mknt, II. 32. 3Tti// lie tnrivcil fii/ (/.(rreement.'] — 1. An aijieeineiit between the parties takes away tfie necessity of a term's notice. Giivun v. Lyon, Tay. U. C. R. irZk When nrcessnnj in sccneral.'] — 2. Where four terms have ela[)sed since issue joined, a term's notice is ncces. ...» v>,.a. ,. »a.-.. B. wimld not name|^f""y '" '»' ^"ven belore any subsequent my sum, and insisted upon detaiiiinir j l"'*"'^'^'^'""''' ""'^'^'^ ^^■'""" •''*-' '"""r he wa-'on. Held, that it was for the ' '<^'""'=^ '> ""'t'*"^- '»'" '"'^^nlion to proceed ury to determine whether B. had not ' •">'' '"^'i^" i-"^'''"- Hendvri^on v. Mc- lad full opportiinitv of seeiiiir that A. I '"^"''""/•'/^'"y- U- C. R. OtiS. him what it was a the jury had was teiulerinir him a sum siiilieieiit to j liefoic si^nin'j luni j/^m"!.] — 3. meet his demand, and if the jury were ] There is no necessity for a term's no- satisfied that he had, then that tlu' ^ lice by a det'endant sijrning a iioii pros, tender was a aood one, notwithstand- j althoiiiih tinir terms may liave elap^^ed ing B. had refused to name the snecilic i without any proceediiic had. Culver amount of his bil name the specific j without anv i)roceediii2 had. Milburn V. Mil- v. Mmrc, tay. U. C. R. (i23 burn, iv. I C. R, 17i>. Tender of deed, — Wlirn prmf of, dispensed uith.l — 8. A. agreed lopay B. for a lot of land upon receiviiisr a deed: Vyiien B. ofTercd the deed.'A. declared his inability to jiay, and pro- posed new terms « iiich were accepted. Held, that B. was thereby relieved from the necessity of proving a tender of the deed to enable him to sue, or rescind the contract. Mulsreiu v. Prin'^le, Dra. Rep. 282. Plm.l — 4<. A plea of tender and Before assessment of dainagrs,'\ — 4. Where no jiioceediiigs iiad been taken in a c:iuse (or tl)ur terms, the Court set a>ide an asjes.-meiit ol damajies lor uaiit of a term's notice. Jiaher v. Garrett, W. O. S. 211. [Also iMsu C, iiil'ra.] To several difcndants, one having given (I cognovit.'] — 5, Action against two defenilaiits, alter issue joined, and alter four terms had elapsed, but within a year ; one of the deiendants having been arrested, put in special bail, and refusal, and that the defendant was ;:ave a munovit withdrawing his plea ; always ready to pay at a particular I the plalntilV proceeded against the 433 TESTATUM ACT. TITLE. P. :si other : Held, that the other defendant was entitled to a term's notice. Yates V. Carney ct al., iii. O. S. 31. After judgment by drfauft.l — 6, A ierm'.i ncMice is necessary alter jiiili;- ment by default where no proceedinjrs have been had for four terms. Stoats V. Tieynotds, iv. 0. S. 5. Not refjiiirrd in 2)roccedi7tgs hif de- fcndunt,\ — 7. Tlie rule that a term's notice must be given where no pro- ceedings have been had for four terms, does not apply to proceedings by a defcrulant. Dor dcm. Youngw JIi?i- man, and Doe dcm. Young v. Smith, Hi!. Term, 2 Vic. [Nor to a niolion to set aside jirocerdings for irregularity, but orly to any steps tai»eii towards judgment. Lumley v. Thompson, iii. M. & W. 632.] After verdict.] — 8. No term's notice is necessary where more than four terms have elapsed after verdict before the entry of judgment. Russell v. Miller, Hil. Term, 3 Vic. [Aec : Newtnn v. Boodle, 'i C. B. 79.5, whirh decid(.'S that the rule requiring a term's iiotire is not appUcable lo any proceedings after verdict.] — ♦— TESTATUM ACT. See Amendment, I. 4, 6. — Capias AD Respondendum, 4. — Parlia- ment, 5. — Process, 6. Service of pn2wrs.'] — 1. The Tes- tatum Act, S Vic. ch. 3(J, now governs the mode of service of papers on defen- dants or their attornies. It has done away with the former mode of service provided by the rule of Court, Mich. Term, 4 Geo. IV. Parke v.Ander. son, and Pnrhe v. Meade, v. U. C . R. 2. Outer districts — Titne for njrpcar- anc'c] — 2. Under the 8th sect on of the 8 Vic. ch. 36, the defendant living in a district east of the Home district is entiliei' to ticelve days' notice to ap- pear on a testatum writ issued from the Niagara district — the Niagara district for the purposes of that act being held to be a district west of the Home district. Graham v. Quinn, iii. U. C. R. 183. All proceedings must be had in the one district.'] — 3. Under the Testatum Writ Act, the plaintilV cannot issue a testatum writ in an outer (h.-,lrict to the Home district, and issue an alias from the Home district on filing the original there, as ail the proceedings miist be carried on in the same ollice. Colqu- hotqi ct al. v. Council, ii. U, C. R. 178. TESTE OF WRITS. See Amendment, I. .'). — Capias ap Respondendum, 1,2. — Fii'.ri Fa CIAS, 4, 5. — Parliament, 7, — Pro. CESS, I. — Venditioni Exponas, 1, O 'i — • — TIMBER. See Arrest of Judgment, 11. — Assumpsit, I. 11. — Deed, III. 5, 6. — Trespass, I. 14-, 17. TIME (COMPUTATION.) See Attorney, III. 1. — Notice op Action, 14. — Imotice of Trial, 5. Practice, I. 15. TIME (PLEA OF.) See Bills OF Exchange etc., V 25. TITLE. See Alien, passim. — Arrest, IV. 6. Covenant, 11(2), 13. — Crown Grant, 13, 16, 17.— Deed, HI.*. Ejectment, I. 16, 17, 19,22,24, 25; VIH. 6,9, 11, 12, 13.— Es- tate;. — Estoppel, passim. — Ex- ecutor ETC., I. 7. — Goods sold, 5. — Judgment, 26. — Landlord AND Tenant, II. 1. — Lidel and Slander, 1. 9. -Limitations (Sta- tute of), II. — Maintenance (Statute of). — Money paid, 1.— New Trial, I. 12. — Witness, 24. TLE. ! must be had in the Utider the Testatum iititr cannot issue a II outer (li.,trict to the I issue an alias from on filina; the original roceedings must be ■anie ollice. Co/qii- !c//,ii.U.C. R.178. •F WRITS. I. o. — Capias ap , 1, 2— FiKRi Fa aiAMENT,7. — Pro. iTioM Exponas, 1, BER. Judgment, ]1.— 11.— Deed, III. 5, 1. 14., 17. PUTATION.) TI. 1. — Notice of s on his judgment until he gives up the possession of the land conveyed. The venilor must proceed by action to recover possession. Mc- Kinno/i v. Burrows, iv. 0. S. 71. 1 Wrti. IV, ck. 26— Private act.]— 5|, The provincial statute 1 Wm. IV. ch. 26, " vesting in a trustee certain lands belonging to the estate of the late Laurent Q. St. George, has not the effect of raising a piesumption of title in the particular lands enumerated in the schedule so as to relieve his trus- tee from the necessity of shewing title TITLE. 423 in the first instance. Doe devt, Bald- tvin v. Stone, v. U. C. R. 388. Possession under contract to pur- chase — Failure in payments — Right of vendor to convey io a third party.] — 6, SenMc: Where a party is let into possession of land under a con- tract to purchase, and failing to make good his payments for the land still remains in possession,although it would at the end of the period of limitation bar the vendor's right to recover in ejectment if there were no ncknow. ledgrneni of his title, is not in the na- ture of a disseisin ; and imtil such period of limitation has expired, the vendor has a good right to convey without first recovering possession. Doedem.Det- tricketid. v. Dcttrick, ii. U. C. R. 153. Purchaser" s title under sheriffs saUy wJien irregular proceedings anterior to judgment.] — 7. The purchaser's title to land under a sheriff's sale is prima facie good when the sale is made upon a leg;d writ, and a defendant seeking to defeat the sale on the ground of any defect it; the proceedings anterior to the writ, must shew clearly and con- clusively that there are those defects. Doc dem. Boullon v. Fergusson, v. U. C. R 515. 8. The title of a purchaser at sher- iff's sale is not liable to be defeated by irregularities in the proceedings an- terior to the judgmetit. So long as the judgment subsist in full force, it supports the execution, and the exe- cution supports the sale. lb. Deed revoking devise — Title of grantee.] — 9. A. devised to B., his son, ''a certain parcel of land not less than sixty acres, nor to exceed one hundred, bounded above the road by Mr. Mason's west line, and to extend No. 24 west until lie intersects with John Marsh" — which description not being suHiciently precise to mark out any certain piece of land, he made a deed some years afterwards, by which, for a consideration of 50/., he bargain- ed and sold to B. eighty acres of the '^ ,„tieiaam 424 TITI^E. TITLE. same lots of land, under a dcscriplion which madt! out a certain tract, and which would iiicludo at least sixty acres of that which had been devised to B. Held, tiiat the deed was a re- vocation of the devise to B., who could hold only such land as the deed covered. Doc dein. Mnrsk. v. Hcur- baroHisli; V. U. C. R. +f)9. Interest of tenant at sii/j'emnre, not sufficient to sniqioit a. /■e/rasir^ — ID. A. received possession otlaiid Ironi B. A. died in IS-Ki, and helitre his death A. aiul B. had been in continued po>- session of (he land for more tiian twenty years. — A. dieil without issue and in- testate, leavinjf his wili? upon the hind. C, his eldest t.rolher and iicir-at-law, claimed title and brought ejectiiient against A.'s wile ; A.V wife dffeii led the suit, relyiriti; uii a ipiit claim deed from B., who, upon u'iviiii; up pos- ses.sion to A., had exchanged lands, and never having given A. his deed, as was allefjed, now convi'yed to his wife: //c7r/, tiiat A.'s wile, upon the death of Iter husband, being merely a tenant at vulferance, and having no in- terest upon whicii a simi>!e relei'.se could ojierate, the release convt veil nothing, and the plaintilV was entitlod to recover. Due (Jem. Connor v. Connor, vi. U. C. \\. 2!»!>. VeruU'e''A title at s^lirrilj"'^ soJe — Proof of nciznre.^ — 11. S'lnli/i': That in order to maintain a title as vendee at sherilV's sale, it is not necessary to prove an actual sei/m-e anlecedent to the sale iind before the rettn'n of the writ. Ilaijdon v. Crairfurd, iii. 0. s. .isa. Ejectment //?/ sheriff ^s re)idre — Tro(f of ejecn/ion..'] — I'i. In eject- ment by sherilf's vendee for land sold in execution, the writ of execution is sufficiently proved by its award on the roll, without producing the writ itself, and the recital of the writ in the sher- iff's deed is evidence of its delivery to him. Doe dcm. Stocking v. Watts, Hil. Term, 6 Vic. [Aim, SHERirr's Deed, 3.] Jiisht ofimrchaaer to recover against delitors represent (It ive.^ — 13. A pur- cliasiM' ot' lanils on nn execution at slierilV's sale is entitled to recover in ejectment against the debtor or his re- pre.«entative, without proof of the debt- or's title. Diiedeni. Fisher v. Ckesser et fd., Easter Term, 1 ^Vni. IV- Ik But if the tenant in possession do not claim under llie execution debt- or, tbe (lehior's title must be proved. Doe dent. Crcwv. CVer ol IiiihI s ijcl I'or taxesi. — See Taxes, Ciisi's W I iiiii! ,"),] Ri^Jil of jinrrhaser to recover (urninst jKirlies ehiiininu: under ihhtor.^ — 16. In an action nl fjectment by a purcha- ser at sheriiVs sale where the only . (piestion was, whether the defendant at the time of such sale had possession under the execution tlebtor or not, the title of the exi^cution debtor need not be shewn. A. became piii(lia>'er at a s''<'rilV's sale, and had a deed nuide to iiim by the slier'H'on the if'th Sep- tember IM."). — B., the i>xe<'.ulion debt- or, went into possession of the land sold its devisee under his father's will, who died in ISUf).— B, on the l28th o) Sejitember 1S4-J, leaseil the land toC. for three years, who eiijoyt'd it for & vear, when B , the ilebtor, having absconded from the province, D., a brother of the debtor B.. pur( based the tenant's interest and went into posses- sion. Upon the tenant quitting the place he took from D. a written under- standing to save him harmless against LE. r tn recover against /i'^.] — 13. A piir- II nil excciition at titled to ri'fovcr in lie (let)t(ii- or Ills re- nt proof of the (lebt- Fishcr V. C/icsscr 1 Will. IV- I'liant in pot-session llie execution deiit- * iiiiist lie proved. :V«//.-, Mich. Term, niifiij/st dchlor''s )n^l■llil^er at slicr- ainlilV 'II an action it a dell-nilant who >t as elaimiiiii; any tie independent of r any title lint as. a ' delilor, is not lielj iile against the ser- thaii lie would he imself. J)nc (km. U. C. R. 3t)0. ill iiii ('iccinieiit by a lor taxes. — See Taxk.s, '■/■ tn rrvorcr oirninst iiuhr (/tltor.] — 16. 'Iiiient liy a |)Ui'(dia- e \vliei\; the only , ler the defendant at ale had possession II dehtor or not, the (Ml deliliw need not came purchaser at d had a deed niaile iron l\\r'29\h Si'p- tlic I xec.iiliondelit- essioii of llio land ler his fiither's will. -B , oiilhe'JSthol •Hsed the land toC. o enjoyed it for a he dehtor, having le province, J)., a )r 11., pure hasedthe d went intoposses- enant quitting the D. a written iinder- m harmless against TOLLS. B. — B., in February 1847, made a deed of the land to his brother who was then in possession, for the con- sideration expressed of 100/. — The deed was registered in July IS-t?. — The sheriff's deed to A. was not regis- tered : Held, in an action of ejectment brouglit by A. again.st D., that upon these facts, D.'s possession at the time of the sheriff's sale was the possession ofB., the execution debtor, through his tenant C, and that therefore A. was entitled to recover : Held also, tliat the non-registry of the sheritV's deed had no effect upon the title, it not having been shewn that tlie prior re- gistered deed from B. to D. had l)een given for a valuable consideration. Doedem. Russell v. Hoclgkiss, v. U. C. R. 348. Payment of taxes, how far avail- able towards a title. \ — 17. Scmblc: That the payment of taxes in itself signifies nothing, in making good a title under twenty years' possession. Doe dem. McDonell v. Rattray, vii. U. C. R. 321. Evidence of pedigree, when prima facie case established.'] — 18. To dis- place title made under a near relative capable ofinheriting, it should be shewn that there is some one in existence re. presenting the alleged elder branch of the family. Doc dem. Park et al. v. Henderson, vii. U. C. R. 182. Toronto (City of). 425 Tolls demandalic only once in 24 hoursl\ — 1. A person passing a toll gate more than once on the same day, could not, while the statute 3 Vic. cli. 53 was in force, be legally charged more than one toll in twentv-four hours. O'Hara v. Fdey, iii. U. C. R. 216. Illegal tolls — Summary conviction of toll gate keeper.'] — 2. When tolls j fixed by the commissioners are ex- acted by a toll gate keeper at a gate ! not six miles apart from the one pre- viously passed, the toll gate keeper, under the 34tli section of 3 Vic. ch. 53, is not liable to summary convic- tion. Regina v. Broivn, iv. U. C. R. 147. TITLE (COVENANT FOR). See Covenant, I. 1, 6 ; 11(1), 3, 5; 11(2), 3, 12, 13.— EsTOPPEi,, 5.— Executor etc., I. 10. — Heir, 5. New Trial, IV. 2. TOLLS. See Albion Road. — Conviction, 5, 9. — Corporation, 6. — Port Bur- well Harbor Company. — Port Credit Harbor Compant.-Wel- land Canal, 2. 3 H TORONTO AND LAKE HURON RAILROAD COMPANY. Right to sue storkltolders.] — The City of Toronto and Lake. Huron Railroad Company have under the oj)e- ration of the act 8 Vic, ch. 83, amend- ing the original act H Wm. IV., a right to sue in debt one of the original stock- holders for an instalment due upon the stock originally subscribed and called in by the directors appointed under the original act of incorporation. The City of Toronto and Lake Huron Railroad Company v. Crookshank, iv. U. C. R. 309. TORONTO (CITY OF.) Sec Billiard Tables, 1. — Corpo- ration, 8. Duty and liability of builders — By-laiv allowing them 2mvilcges.] — 1. By 4 Wm. IV. ch. 23, the corpo- ration is empowered amongst other things to regulate and prevent the encumbrance of the streets; and a city ordinance made in pursuance of that power, allowing persons building houses to occupy a certain portion of the streets with their building materials is good ; but any person who is building leaving those materials in ihe street? 426 TREASON. TRESPASS. under that ordinance must provide I lights in tiie night, or he will be re- j spoiifiible lor any aceiilent tiiat may occur from his neglect. Ilervcy v. j French., Easter lenn, 3 V^ic. By-law fnr sliootinii: iki^s ] — 2. j The corpmatidu oC tliecily ol' Toronto , have power iVoin linie to time at liieir discretion to make by-laws i)y wiiicli' dogs ibuiid running al large within tliej limits and lilicrties of the city, alter | proclamation orsuch by-laws, may be shot. McKcHzic V. CanqjbcU, i. U. C. R. 24-1. TORONTO GAS COMPANY. Sec fi.vs Companies. without ofRce found as afterwards. Due ihm. (Jillnpic v. Wixon, v. U. C. R. 132. TREASURER (COUNTY). iSVe DisTUicT CuuNcir,, 8, 11, — Di- vision CoLUT, -i. — Taxes, 7. TOWN CLERK. Ste District Coi.ncil, 13. TOAVN OF LONDON. Stf London (Town of.) — « — TRANSFER OF OKBTS. See Assumpsit, L 8. — Gl akantee, 9 TREASON. Sec Ejectment, VIIL 17. — Lndict- MENT. When prcypcrtij forfeited.^ 1. The property of a person attainted foi high treason is not Ibrfeited until the attainder is complete. EtU(K)d ct at. V. McKcHzie, Hil. Term, 2 Vie. Vesihiq nf estate timler 33 Hen. Vin. ell. 20.]— 2. The estate of a traitor concerned in the rebelliim of 1S37, and who accejited the benefit of the provincial statute 1 Vic.ch. 10, is at once by such acceptance as much vested in the Crown under the opera- tion of 33 Hen. Vlll. ch. 20, sec. 2, TRESPASS. See Arrest, I. Iti. — Assault and |{.\i PERV. — Costs, VIL 1. 3, — Particulars op Demand, 8. L When and by whom maintain- able. n. PLi:AnixGs, Evidence, AND Dam- ages. L When and by whom maintain- able. Sec Action, 1, 3, .'). — Common Schools, 2. — Conviction, 2. — Chown Grant. 2, 12. — Cijstoms Acts, 1, 3. — Distrkss, 11. 8. — Executor etc., 1. 2. — False Lm- iMusoNMENT, |)assim. — Fixtures, 2. — Horse. — Landlord and Te- nant, L 3, 4'. — Magistrates, 1, 5, 10, 13. — Religious Societies, 2. Revenue Laws, 8. — Sheihi'k, L •1, ."), (). — Stone. — Tenancy in (!OMMON, 3, 4-. Jiij punhancr of a irrq^nf reheat at slieritfn sale before en fry into'jmsscs- ,s/o/<.] — 1. A [tarty purchasing a crop ! of wheat at sherilV's sale may bring trespass against a person converting or injuring it, though he may never have received possession of the field. Ilay- (luit y. Crau-fnnl, iii. O. S. 583. Power to (/narri/ stone — Excess of suck 7>o«r/.] — 2. Where a statute gave power to certain |)ersons to enter I on lands in the neighborhood of a bridge to (|uarry stone to keep the briilge in repair Ac, doing no unne- cussury damage therei n : Held, that the T ASS. 1(1 as afterwards. : V. Wixon, V. U. (COUNTY). NCIL, 8, 11. — Di- f. — Taxes, 7. ASS. , — Assault and s, VII. 1. 3.— Demand, 8. WHOM MAINTAIN- DENCKjANdDaM- VHOM MAINTAIN- K. !, .'). — Common unviction, 2. — 2, 1"2. — Customs sTHi;ss, U. 8. — I. 2.— False Im- 'Am. — Fixtures, NDLOUD AND Te- AlilSTKATES, 1, 5, Ls Societies, 2. 8. SllEIUI'F, I. . — Tenancy in iircqinf iclwntat I' II try into jmsscs- pinrliasiti|f a crop s sale may bring rtion converting or : may never have )f the field. Ilay- . O. S. 583. ' sldiie — Excess of VVIiere a statute n persons to enter eighhorliood of a one to keep the ., doing no unne- iin: i/c/r^, that the TRESPASS. TKKSPASS. 427 power must be strictly pursued, and that any abuse of it by excess is punishable in trespass. Mijcrs Hoimidet al., iv. O. S. 113. Aitornoi (i trc^imsupr tlirmisih his orders to the sheriff.'] — 3. Where an attorney directed a slu'riiV not to give up tlie goods of A. seized under an attachment as the goods of 13. : IMtl, that ho became a trespasser by sucli direction. Riulpiiluirst v. McPhcrsoii f^flA.iv. O. S.2S1. i Sufficiency of seizure hy sherifT to support trespass.'] — 4'. A defendant against whose aoods a shei'ilf had a writ of (>xecuti()n (which was after- wards set aside lor irregularity), drove to the sheritr's office and gave his de- puty a list of his properly as seized, but without any actual seizure: ILld, not sufficient to support trespass against the then plalntilV. Ilervey v. Mexan- der, Hil. Term, 2 Vic. Sale nf timber — Trespass a/j^aiiist the otrner of the hind for remorini: the WDO'L] — f). A person clearing land under an agreement to receive the wood in paynu'-nt of his labor may maintain trespass aiiainst the owner of the land for takinsi away the wood after it is cut down, altbouuii he has no pos- session in the land to enable him to iniuiii;>in trespass quare clnusuin fregit. Humihoit V iT/fl'fj;<(//. Easter Term, 2 Vic. [This case does not shpw an interest in land within llir Statute of Frauds. Sec Fkaubs (.Statutk Of), I. 2.] Proceedings hy v) agist rates under a statute disidloivcdJiy llrr Majesty.] — (). Where an act hail been ])assed by the provincial legislature which was subse(|uently disallowed by Her Ma- jesty, but while if was in force the plainliir had been cnnvicted under it by the defendants as justices of the peace, and directed to pay a fine to be levied according to the act, and the fine not having been paid, a wairani was properly issued by the defendants for his arrest and im)U'isonnient. vviiich, however, was not executed by tliO offi- cer to whom it was directed until after the disallowance of the act was pub- lished in the Gazette: 7/f/(Z, that as the conviction and warrant were legal, I that tiie delendants could not be con- I sidered as trespassers by the warrant I being executed when the act was no longer in force. Chipp v. Luumson ct III., Easter Term, b Vic. Su/jiciency of 2>i'operly or posses- sion.] — 7. Wliere the owner of a lot of land encroached u|)on an adjoining lot belonging to the Crown, and took three successi\-e crops otf it without any permission from the Crown, and another ]»ersoii who hail taken posses- sion of the same land also without license about ten years before, and paid taxes, iiiid made clearings on it, warned olV the owner of the other lot alter he had taken the third crop, and then cropi)ed the laiul himself: Held, that the owner of the adjoining lot had no property nor possession to maintain trespass against him for that crop. Kil/ieJain, v. Robertson, iMich. Term, 6 Vic. Continmng trespass.] — S. Where the defendant, as agent of a third jKirty during the occupancy of a tenant of the plaintilV, put up a fence on the plaintitf's land which continued there after tlio jilaiiitiff resumed possession at the expiration of the tenancy : Jlrhl, that the plaintilf could not bring tres- pass against tlie defendant for the act done by him durinsr the continuance of the lease. JBoult'in v. Jarvis, Hil. Term, (i Vic. Trespass for f.rtares severed from frerhohl.] — f). Where in trespass (\)): takingawny millstones. mill machinery, wheels &c., the defendant ])leai1ed not possessed, and it ap]>eared that the injury was dond by severing fi.rturcs, in the mill and taking them away: JTefd, that the action was well brouaht, as when they were severed they be- came personal property, for which the I owner could maintain trespass. Mcy- irrs V. Marsh, ii. U. C. \i. 148. -SSPHRBWI^ 428 TRESPASS. TRESPASS. Toronto Club Ilmise — Trcspasxfdir distiirhing servant in rctited aj^nrt- victds.l — 10. Pleading, as to the mode of Hotting out an alleged demise iVoin the Toronto Club of certain roomHand rt])aitments in the club house to a ser- vant or steward of the club, who re- lied upon tiie said demise as giving him an exclusive possession upon \viiich he could maintain trespass. Stmile, that under the demise as set forth in tlie rei)lication, an action of trespass conld not be sustained. If the servant hail been improperly dis- missed he should have sued in assump- sit for a breach of contract, not in tres- pass for takinir })ossession of his apart- ments. Williams v. Hcrrick, v. U. C. R. 613. Locus formalij used as a public roud.'\ — 11. Where in trespass (piare clausum fregit, it a])peare(l tiiat the land for the trespass to which the ac- tion was brought had been used for some years as a public road, although it was wholly on the plainti(l"'s land, it: wlien the crop is fit to cut, iho defendant enters and takes it away. — The plaintifl" sues the defendant in tres- pass : Held, that the ])laintifl° had such a ])ossession as would enable him to maintain an action of tresjiass. GaU hiirhcr V. Brown et a/., iii. U. C. R. 350. Riirht of one person huijintr land far (tnothcr to sue for trcs]tass.^ — 13. A., living abroad, sends to an agent in this province to purchase a lot of land lor H., who was living in the pro-^ vince, and to take the conveyance to himself, (A.) This is done, and B. is jjut in possession of the land, whol'rom thenceforth uses an9 II. Pleadings, Evidence, and Dam- ages. See Amendment, II. 15. — Arbitra- tion and Award, IV(3), 8. — Ar- rest OF Judgment, 5, 11. — As- sault AND Battery, passim. — De Injuria, 2. — Distress, II. 1, 6. — Evidence, V. 4; VII 2.-^ False Imprisonment, passim. — Fences, 2. — Fixtures, 1. — Gen- eral Issue, 2, 3, 4, 5. — Landlord AND Tenant, I. 8. — Mesne Pro- fits, passim. — New Assignment, 2, 3.— NewTrial, II. 23.— Plead- ing, 1. 16; II. 4, 11, 12,41; III. 5 ; IX. 1. — Sheriff, III. passim. Verdict, 4, 9. — Witness, 21. Declaration, charging imprison- ment ivith force and arms.] — 1. A person who is charged in a declaration with causing another to be imprisoned, laying the act with force and arms, is charged with committing a trespass. Femusson v. Adams ct al., v. U. C. R. 194. 2. A declaration in trespass, charg- ing the defendant with having caused the plaintiff to be assaulted and im- prisoned, is good. Ito/iertson v. Cooley et. id., vii. U. C. R. 21. [Also, see case 21 , infra.] Justification of trcsjmsses, the locus being a kightmy.] — 3. Where it is intended in trespass to justify that the locus in quo was a highway, the aver- ment must be direct, not left to infer- ence ; and a justification in a second plea for entering such of the closes as are not included in the limits of the highway alluded to in the first, will also be insufficient. And a plea pro- posing to justify the cutting down trees on the adjacent land to repair the highway, must mention the number and the description of the trees cut down. Or.ser v. McMic/uiel et al., Tay. U. C. R. 490. Locus — Variance in name of the township.] — 4. In trespass quare clau- sum fregit and for destroying goods, the township laid is descriptive, and must 430 TRKSPAS9, TnE81»A»8. :!! .i In be proveil us laid ; and if tin; trespass miuI Ireoliold. tlio lii|rh\vny boins; ad- bc proved to have l)een in anotlicr .nitteii. Url/iivr/lwEdsttciMdetaL, township, the variance will not he cured, hecnnse the township laiil has the same name with the eounty in which the true tuwnship is situate. Matticc V. Fan- vi erly ilescribed as the plain- V. O'' Connor, iii. 0. S. 57 1. Joint trespass — Dcr/aration .] — (i. Where the plaintilf (delemlant on a capias) sues the sherili" and the plain- tifl' in the writ arrestiiiLr him, as /'ni/tt trespassers, he must take care that bis record of the jjleadiniis does not shew titr's dwelling house. Jicalli/ v. Mc- j\[(islerset(il., Trin. Term, 2 & '<] Vic, Trcsjxissi/. c.f.—'C7(isc' (ind'humc' not si//nt/n/iniiiis.'\ — 11. In trespass to adu-eUinii liausv. it is a bad plea to himtobe proceediuL'^ au:ainst the sherilf plead that the c/asr' in which &c., is for one act of trespass, and auainst the the einsc of the delemlant, but in tres- plainiiir in the writ Ibr another act of pass quare domum I'reirit, and takinjr trespass. Where the record does shew away the j^oods of the plaintiir, it is a this, the C(nMt will -et aside a verdict i^ood plea to tin; takinif away the goods obtained by the |ilaintilV a;;ainst both ; that they are not the poods of the the defeiulants on (he issues raised. ; plaintitf. Vail v. KM c et al.,\\,V. Ecclcs v.Moodie et al., iv. U. C. K. C. K. 11-2. 2i>0. O/ic I lose in r/nestion — Vleaput- Admhsionof ahi'Ji'UHni inplead- (in'j, seeeral in- issue.'\ — 12. ^Vhere ing.^ — 7. Where in tres|)ass (piare in trespass l()r breakimr and cnterinir a clausum fregit to a plea ot" soil and close of the i)Iaintiir. the defendant freehold in the Kinr' in whirh &<•., is iMiilant, Ijiit in tres- iVeirif, and taking' the plaintiir, it is a inu; away the goods the iroods of the 'VoMe ct id., ii. U. 'cslioH — Pirn fv.t- s7/f.]--l'J. \Vheio cinic and cnteriiiii; a ill', the ilefeiidant aid closes in which was either ol'lhem intilV, tlie, plea was deniiirror. Wood' ,-, ii. V. C. R. 401. Issue of title to the close.]~l3. Toj a declaration in trespass cpiare ciansiim ' fregit, setting- out tlie close by metes' and hounds, the deCeiidaiit pleaded that the part ol' the close mi wiiich the alleged trespas.s was cuiiuuitted was his close, and i!ie plaintill' ri'j)rn'd that the close iiieiitiiiiied in the declaralion WHS hi.- close, anil not the close ol'lhe defendant as staled in the plea, ihe replication was held good on s|)ecial iloMiurrer, lliscatt v. Cox, i. U. C' K. IS!). [Also furllipr, sen cases 2i) and 30, intra.] Trcs])(iss I/, c. f. — VI ca to a nrw a$sig/u/ic/!l.] — ll. 'Where in trespass ^ quare clausum iVetrit the plaintill' set : out the close Ity diirerenl ahutials in] two counts ol' his tleclaration, ami the i defendant justified under a ri^ht of way, setting' out the abuttals of the ] way in his plea, ami the jdaiiitiir new 1 assigned the trespasses in other and | diU'ereiil parts of the closes, ami out of the ri^Iit of way, and the defemlant pleaded a riylit of way to the new as-| sigiiment, setting it out as runniiii; Itu- 1 tiiTc/i the closes mentioned in the declaration, but did not state that iti was another and a ditVerent highway I from that mentioned in the plea to the declaration, the plea to the iww assign- ment was held bad on special demur- rer. Uod'jildHsoii V. Douuldsou, ii. U. C. R. .ii!) Pica JKslifijiiVj; all tresjxisscs — jYav ass/)i/n//L' iinother tresjiass.'] — ' 15. A replication newly assiiiiiing a | ditl'erent trespass from that by the plea justified, when the plea justifies all the ! trespasses complained of, is bad on special demurrer. Cameron v. Lount, iii. U. C. R. 453. [See furllicr, ca.se 25, infra.] Tr(sj)ass for taking cattle — Justi- fications by pov iid-keeper , and inir-^ \ chaser at the sale.^ — J (5. In trespass: against two defendants for seizing and i taking cattle, one defendant justified' as pound-keeper, and because the cat- 1 tie were in the close of A. wrongfully, I and trespassing in the said close and eating grass and corn thereon. A. took the said cattle tres|)assing and de- livered them to the deli-ndant as a pounil-keepi'r within his jurisilictioii, and the ileliMidant iiiiponiided them and aftei wards sold llieiii according to law, ami the other (lelemlant justified the sei/uiv by the puimd-keeper as in the other plea, and the sale by him, and that the deleiidant bougiit the cat- tle at the sale as the highest bidder, and the plaintill" demurred generally to both pleas: Held, that the plea by the pound-keeiier was bad, as it did not .--hew that he received the cattle from a person within his ilivision, or that the close was so situated, and the plea of the i)urchaser good, as he could not be liable to th" plaintill' in trespass. Clarke v. Diirharib ct uL, Easter Term, 'i Vic Justification, htj a pound-keeper as A«c/«.] — 17. Ill a plea of justification by ii pouml-keejier for taking a pig, when the justification wasthatthe pig, contrary to tlie township regulations, broke through a lawful I'eiice ; it was held necessary to allege that the fence was within that township, and to shew the close in which the pig was tres- jjassing at the time of seizure. Carey V. Tate, Easter Term, 4 Vic. Jtistijication., under u-rit of posses- sion^ — 'Trespass (J. c.f. — 18. Where, in trespass ([iiare clausum fregit the defendant attempted to justify under a writ of possession, and ])ut in a judg- ment for lands in the same township generally, not describing them, and a scire facias to revive that judgment, on which the plainlitVhad been summoned as terre tenant, and a judgment on the scire facias, each as general in the de- scription of the lands as the judgment against the casual ejector; the plain- litf not having been in possession when judgment was entered against the casu- al ejector. — the Court held that the justification was not complete, without shewing that the plaintiff had been 432 TRESPASS. TRESPASS. connected vvitli the proceedings in ejectment. Reeves v. Meyers, i. U. C. R.4G2. When such justif cation suj/icient.l — 19. Wliere liovvever, in trespass ; quare clausuni iVegit, the dcroiidant ' jiistilied as in the last case, and tiie plaintiir new assijrned a trespass to other ck)ses, to which the defendant pleaded not guilty, and at the trial only ' one trespass was proved : Held, that , the justification was suflicient ; and the j plaintifl' having ohtained a verdict, a new trial was granted. Mursli v. Myrrs, Easter Term, 4 Vic. Trespass — Justificationyas prevent- ing a breach of the 2ii'uce.^ — '20. To i an action of trespass for breaking and | enleriiig the plaintill's house, the de- | fendant i)leaded that the plaintirt' was violently assaulting his (the plaintiff's) j wife and child, and that he entered,! &c., as he might lawfully might do, to j prevent the plaintifl' commiltingthe said ! breach of the peace : Held, plea bad , in substance. Rockwell v. Murray, I vi. U.C. R. 412. I Trespass against a justice for false | imprisonment — Dcclarution.^ — 21. It is a good count in trespass against a justice of the peace, on motion in arrest of judgment, ihat he with force and arms issued his warrant, whereby he caused the plaintifl' to be arrested and wrongfully imprisoned without any rea- sonable cause, contrary to law and against the will of the plaintifl', and until the plaintiir gave his promissory note to A., to obtain his discharge from the imprisonment. Brennan v. Hatc- lic, Easter Term, 5 Vic. Trespass q. c.f. — Justification tin- der award of boundary commission- ers.'] — 22. In trespass quare clausum fregit the defendant justified his entry under an award of boundary commis- sioners, awarding the possession of the locus in quo to the defendant, and avened that he entered into the land under the award as his freehold : Held, bad on general demurrer, aa the com- missioners had no power to award the possession, and the |)lca did notamoiint to liberum tt.'nomentum. Villnirc v. Cecille el al., Easter Term, 5 Vic. " Trespasses'^ and " grievances,'^ not synonytnous,'] — 23. A plea in trespass, that the defendant is not guilty of the "grievances," instead of the " trespasses," is bad on special demur, rer. Clute v. McPherson, Hil. Term, 7 Vic. Trespass q. c.f. — Justification un- der distress — Replication, surrender.'] — 24. Where, in trespass quare clau- sum fregit et de bonis asportatis, the defendant justified the seizure of the goods on a distress for rent under a demise to one A., and the plaintiff re- plied that before the rent distrained for became due A. died, and the defen- dant and A.'s executor joined in the demise of the same premises to the plaintiff, under which the plaintilT entered and occupied — the replication was held on demurrer to be a good answer to the plea, as the demise to A. was surrendered and determined by the new demise to the plaintiff: Held also, that a plea of a distress for the rent under the demise, after the least) had expired, was bad, for not stating that the distress was made within six calen- dar months after the determination of the lease, according to the statute 8 Anne, cli. 14; and that a plea of a distress for rent, on a demise of a house and other premises to A. at a certain rent, and that the plaintiff occupied the house with A. during A.' s life- time, and after his death continued as the defendant's tenant of the house, and that the deleiulant distrained for the rent of the house and other premises on the plaintiff's goods in the house, was held also bad, as the plaintifl", under tiie demise to him, was liable for the rent of the house only after A.'s death, and could not be distrained on for the rent due for the entire premises de- mised to A. Straihy v. Crooks, Mich. Term, 7 Vic. SPASS. power to a\varil the I pica clij not amount LMitiiin. VUlaire v. ter Torm, 5 Vic. and " grievances^ ]— 23. A plea in elVndaiit is not guilty es," iiisfoad of the ad on special demur. Phcrson, Hil. Term, -Justification un- lication, surrender, "{ trespa.ss qiiare clau- jonis asportatis, the the seizure of the ss for rent under a and the plaintifTre- le rent di. the plaintiff: Held a distress for the rent , after the leaMj had for not stating that ade witliin six calen- the determination of ing to the statute 8 lid that a plea of a II a demise of a house :s tu A. at a ccilain e plaintiff occupied L during A.' s life- I death continued as lant of the house, and it distrained for the and other premises goods in the house, as the plaintiff, under 1, was liable for the )nly after A.'s death, distrained on for the entire premises de- thy V. Crooks, Mich. T THRSFASS. New assignment to justifwattoji.'] — 25. The elfect of a new assignment where but one trespass has been com- plained of Plaintiff must not in his replication amplify the cause of action for which he has declared, nor can he in his replication deny the justification wholly and at the same time reply excess. Spa/ding v. Rogers ct nl., i. U. C. R. 135. Trespass q. c. f. — Plea , restoration of plaintiff under Slututrs of Forci- UeEntry ^-c.] — 26. In trespass (juare clausum fregit the defendant pleaded that the plaintiff made his complaint to the justices of the peace of a fcrci- ble entry and detainer under the sta- tutes,and the justices summoned a jury and heard the complaint, and made a warrant for restoring the plaintiff to his possession, and that this was the same trespass as that comi>]aiiied of by the plaintilT. The plea was hold bad on general demurrer. Boultoii v. , Fitzgerald, i. U. C. R. 3t3. i Trespass for taking cattle — Plea, not, possessed. 1 — 27. Where in tres- pass for taking the plaintiff's cattle, the defendant pleaded not possessed, and on the trial it was proved that the cattle had belongwl to the defendant, and that the plaintiff had leased them with a farm from the defendant, but had detained them after the term had expired, for which the defendant had sued him and recovered damages to the value of the cattle after this action was brought : Held, that the plaintiff could not treat this verdict as giving him a title to the cattle, by relation back, at the time this action was com- j menced, but that this defendant was ! entitled to succeed on his plea of not i possessed. Abrams v. Moony i. U. C. | R. 552. I Trespass for taking wheat — Plea, \ leave and license — Emde.nce.'\ — 28. \ Trespass to south parts of lots Nos. ; 14" and 15, laying an asportavit and \ conversion of a quantity of wheat and straw of the plaintiff. — Plea, leave and 3 I TRESPASS. 433 license generally. In support of this plea, the defendants proved a deed iiiado by the plaintiff, 20th February IS-K), whereby in consideration of 28^. acknowledged to havt; been received from the defendant Turner, he " bar- gained and sold" to liiiii, among other tliingsspecified. "all and singular twenty acres of wheat then growing and being on the soulii part of lot li in the third concession of Brantfoid, and in the possession and occupation of the gran- tor Lunn,tohoId the said twenty acres of wheat to him the said Turner, his heirs, executors, administrators and assigns forever, without any claim or hinderance ol any peroon whomsoever, .. d without any account to be there- after rendered,, so that neither the said Liinn, nor any one in his name, should claim or demand any right or interest in the said twenty acres of wheat, or any part tlieivof, or at any time there- after, but shall from all actions and de- mands therefor be wholly deljarred and excludeti," and by the same instrument the said Lunn the plaintiff, bargained and sold " all the said twenty acres of wheat, with the right of ingress, egress and regress into, upon and from the said lot No. 14, to protect, harvest and remove the said twenty acres of wheat at the option and discretion of him the said Turner, his executors ikc, unto him the said Turner, his executors &;c., against all and every other person or persons, shall and will warrant, and forever defend." Then followed a proviso that if Lunn should pay to Turner 28/. with interest, on a day named, (20lh June 184.6), then the deed should be void. Lunn on his part covenanted topay the money, and it was stipulated, until default made, Lunn might enjoy and retain in his possession and use the goods and pro- mises above bargained and mortgaged as aforesaid, unless he should at any time before the day of payment be sued or prosecuted by any other person whatever, in which case Turn^> was to bo allowed to imJie and enjoy the 494 TRESPASS. THOVEB. said goods and chattels as of his own property, llrld, that the delciulantM must fail under their genoial plea of leave and license, the deed jL'ivintt no right of entrj- on lot ir>, a tresjtass that had not been denied, no general issue being pleaded. Se))Mr, that it' they could have derived iVoni their license to enter on lot 1+ a right to enter on lot 15 as being necessary, in order to enal)le them to enjoy the privileire granted with respect to lot IK they shotild have in a special plea set tbrtli the nixoisity. Held n the plea of the close not being the close of the plaintilT, the plainlilV must prove an actual and immediate occupation of the locus ill (|uo. McJWilv. Train, V. U. C. R. 91. Possession, a question fov tlwjurif.'] — 30. L'nder the pica of the close not being the close of the plaintilf, the question of possession is a fact for the jury. lb. Occupation of land mtliout title stricdy conjincd to such, occiqmtion.l — 31. Where tlipre is no actual title I or claim of title, the occupant is not deemed by construction of law to be in possession of more land than his ocaipatio)! covers, and to this occupa- ; tion when suing in trespass he will be striciiv limited. Lidcc v. Brihy,y, |U. C;R. 13(5. Aihiiissdiilily of an avard under the pleas i;ire/i.'\ — 32. To an action I of tres|)ass the defendant pleaded, 1st, not guilty ; 2iid, close not |)laintifl''s; 3i(l, jilaiiitilV not possessed : Held, that an award could not be given in evidence by the defendant under any of these plea.i. lb. TRIAL AT BAR. The Court will not grant a trial at bar merely becaiisi; the party applying for it is a barrister. Doedem. Palmer v. Dickson, Trill. Term, 11 Geo. IV. TRIAL AT NISI PRIUS. Sec cases referred to under Nisi Prius (Proceedinus at). TRIAL (WRIT 0' i. Sec W^RITS .. tTC. TROVLK. I. When and bv whom j, aintain- ABLE. II. Pleading, Evidence, and Dam- ages. I. When and by whom maintain- able. See Demurrage, 2. — Fixtures, 3. Magistrates, 10. — New Trial, X. 10.— Partners etc, 8.— Ri-' deau Canal, 3.— Tenancy in COMMON, 1. Bond.'] — 1. Trover may be main- tained against the oMigor of a bond VEB. tlic occupant is not iiMion of law to be lore land than his and to tills occupa- 1 trespass he will be La/ic V. Bri/ey, v. f (in nvard under —\\1. To an action tTidant pleaded, 1st, oce not plaintitr's; possessed : Held, iild not be given in 'fondant under any 7>. AT BAR. 1 not grant a trial at t; the party a|)plying Doedem. Pa/mer Term, 11 Geo. IV. NISI PRTUS. foiniderNisi Prius DINGS at). WRIT 01 ). ' ^ KTC. )VKH, Y WHOM M AlNTAIN- /IDENCE, AND DaM- f WHOM MAINTAIN- DI.E. 2. — Fixtures, 3. 10.— New Trial, NERs etc, 8. — Ri-' 3.— Tenancy in over may be main- s oMigor of a bond TROVER. who has wroiiiiriiily torn oflT his seal. BnnJc of Upper I'niKii/tt v. Wiilinvr, ii. 0. S. 2'J-i. Dfed ill ./''•] — -• Trover may be broiiiilit lor a deed pussiiiL' a fe(' sim- ple. Biiir V. Miiiini, Mich. Teriii,.^ Vic. Tit/e iii(intl.'\ — 4. It seems that where a party [lurcliases the goods of another at jmblic sale, a notice given by the owner at such sale dispenses with the necessity of a demand and refusal to maintain trover, llaren v. Lyon,l:xy. U. C. R. 510. Against an onent selling horses at lessthiin Jia:c(/ jvire,'] — f). Where the defendant received two horses iVom the plaintiir to sell at a certain price, and without his assent or aiilhoiity sold them at a less price: Jlefr/. that he was liable in trover for the diller- ence. Priest man v. Kendrick et uL, iii. 0. S. ()6. Trover by a person ivhnse snorfs have been ivrongful/ // seized and sidd.^ — (i. A joint action of trover may be main- tained against the purchaser of goods at sheriff's sale ami the attorney lor the plaintiir, by a person whose goods have been illegally taken and sold as the property of the execution debtor. Kerim v. Cahill et al., Easter Term, 7 Vic. "rover by tenant against mortga- gee for sJielves t^rf.] — 7. The tenant of a mortgagor holding under a lease for years, during the continuance of his term attorned to the mortgagees, >J after the term had expired con- tinued to hold the premises from the .j;^ortgagees as a yearly tenant, and ^ when histenancy ceased claimed from them ceitain shelves and boxes with which he had fitted up a shop on the premises during the continuance of his lease from the mortgagor, and which TKOVER. 435 were not fixtures, and for which, upon the mortgagees refusal to part with their jiosscssion, he brought trover : Held, ilial the acliini was maintainable. Detiliiilnt V. The Cuiniiicrciul Bunk, M. J)., i. U. C. R. 309. [Sen ta"!' l.'J. infra.] Dnnatin mortis cansn — Delivery — Tmrrr for goods so gii'e?i.^ — 8. A. niiiki's an Miireemnit with ]J. to work a mill on sluiies — A. who owned the mill, to have two.thinls, and H. who worked it, one-third of the toll. After some years B. is taken dangerously ill and about an hour before his death sends for A. and tells him (having first re(|uested those about him to leave the room) that there are about 300 bushels of 'oil wheat in the mill undi- vided, 100 of which under the agree- ment would be his, (B.'s) : that as he (B.), owed him (A.), for money lent, be begged he would accept the other 100 bushels, and also a promissory note which he sent for and handed liim. Witnesses who overheard part of the con vrrn lion swore to the 100 bushels and the note being given by B., not as a uift, but as they heard B. say, in p;!yiiieiit of a debt. Held, in an action of trover brought by B.'s administratrix to recover from A. the wheat and note, tliat ujwn these facts the question of delivery as upon a ilonatio mortis causa did . not arise, the transaction being nothing more than an ordinary sale for a valuable consideration : ilia! if it had, the wheat being already in A.'s own mill, no further delivery could be required. Held (dso, that tin- agreement being personal between A. and B., the in- testate having no term in the mill, hia administratrix had no right of posses- sion and could not support the action. Ralph V. Link, v. U. C. R. 14'.5. Conversion — SuJ/iciency of demand and refusal,'] — 9. Where a demand in trover is necessary to {)rove a con- version, if it be verbal, the answer must be positive ; and where a verbal 436 TROVKR. TROVER. r upport an action of trover. McDonett it at. V. The Bank of Z^jyper Canada, vii. U. C. R. 252. WItenmaintainnhh for ftxtnres.y— 13. Trover cannot be maintained for a fixture so long as it remains annexed to the iVeeholii. Ontes v. Cameron, vii. U. C. K. 228. II. Pleadings, Evidence, and Damages. Srr De Injuria, 7, 8. — New Trial, II., 7, 17.— Pleading, VIII. 5. rha, not possessed — Averment of demand was made on tlie defendant while drivin^^ at a distance from his house where the projKMty demanded was, and no answer was retnrncil : Held, no evidence of a conversion. McLellari v. Graliain, Easter Term, 2 Vic. 10. Where A. lent a liorse lo B.,in whose possessit)n he was injured and notice immediately given to A., wlio refused to receive liiin from an inn where he had been left hy (5., and af- terwards made a formal demand of him from B. Held, that (lie non-de- livery in compliance with that demand, the horse not Imving i)een at the time in B.'s possession, was no evidence iA'time necess(in/.\ — 1. To an action of conversion. Wdls v. Crew, Trin. I trover the delendant pleads that the Term, 6 &; 7 Wm. IV. i ])laintifl '• were not lawfully possessed Evidenee of tortious possessim and i "'' ^''^ -"^'^'^ ""'^ '^''•''"t '' ^''' ""'f ^^'" conversion.]-} I. Quceie : Is the evi- ! T" l^^^'S' "' '" .' '?°"'^ 'r^T dence ofthe secretary . ithe pn.vince i" '•"»\'^-, . ^^'""'•'•er.to P'ea. Held, that it appears, hy an'er.trv in his o-vn ' |^'^, ''"^' '" ''"^ ^''^^^'"S "« *f«* f !»«' hand-wiiting in a book kept f..r ...d. ^thedefenda-it means to allege the pla.n- entries, that a crown grant was g.venft T' »"* I'^'^'T [* « T't to A., and that he therefore was con- ^ "^ ''^ ''^'^ \'T "'..^" ^'■' '^f^ vinced that it had been delivered to A., I 'if'*' '^''*:'l ""{f^'}.- „ ^i"!'^'''*'" '^ «^- *' sufficient to charge A. in trover with ] ^''""['' '"• ^^ ^' ^' ^^^' the possession of such crown ."ant,! Defence of property being purchased and if A. obtained such crov ; grMxihy defendant shmild be specially plead- without any direction or authority from «/•] — 2. Where in trover the defence the grantee, but from the direction of is that the pro])erty alleged to have some })ublic ollicer to the secretary lo l)een converted was ])urchased from deliver to A. such grants as he shouiti the plaintiflby the defendant, it should require, wag possession obtained under he specially pleaded. Giinn v. Gil- such order tortious, and did it nilord lespie, ii. (J. C. R. 12+. evidence of a conversion at that time? rieadinjTS—Admisdbility of evi- Hamj)Son v. ISoulton, Hil. Term, ti dent' pliiiiiiilV's lessor had taken any jadvantiiae of the t'orfeiliire. Hcnder- Procecdin"^- Tormncc,\\.\].C.R.M2. mei-ely on the urnuad of itifurmdlihi ] I Lcaxc pmhicrd—Endmrc of iden- — Where proi-eediiigs have heeii taken !//•/,/ (f j,n))iisrs.]—'2. Where in an and damages awarded under the pro- | action lor use and ocnipation, the vincial act 4 iV. 5 Vic. cli. (>3, and a ! plaimitV proved Ins case In- evidence mandamus issued enjoining payment of admissions of the defendant, who of the damages awarded, the Court | on his defence put in a lease under will not order the proceedings shewn s,>al from the jilaintilf, which he con- on the return to a writ of certiorari to ; tended was for the same premises, but be quas'ied on the ground of mere in- \ there was no distinct evidence of iden. formality. To set them aside, the '. tjtv, and the jury found for the plaintiff, Court must see that substantial justice; the Court afterwards, on affidavits between the parlies has not been done. Regina p.t id. Drnisan v. The Home. District Turnpike Trust, In re, i. U. C. R. 193. __« — UMPIRE. See Arbitration and Award, VIU. 8. UNITED STATES. See Absconding Debtor, 8. — Ar- rest, I. 15).— Costs, 1(2), ti. UPPER CANADA COLLEGE. See King's College. USE AND OCCUPATION. See Arrest, I. 2.-Arkest of Judg- ment, 1. — Pleading, II. 2. Action — Drfincv of forfeiture of ■ plaintiffs csto/c] — 1. It is no de- ^^^ fence to an action l()r use and occupa- tion, that the plaintitV is himself the lessee of the premises under a lease in which there is a covenant that the lessor shall he allowed to re-enter if the lease be assigned, or the premises sublet without the lessor's license, and shewing that these were the only pre- mises demised by the i)laintitV to the defendant, made a rule absolute for a new trial without costs, unless the plaintilf would elect to enter his judg- ment lor the amount of his verdict onlv. Boidton v. Defies, ii. U. C. R. 432. Proof of fratd tillr in jilaintiff and iiierr possession hij defendant.^ — 3. in an action for use and oiciipntion, the plaintiir ])roving a legal title to the premises, ;uul a mere naked possession by the defendant, is entitled to a ver- dict. He need not go further and prove an attornment or contract be- tween himself and the defendant. Price v. Lloyd, iii. U. C. R. 120. Nonsnit,irhen wcitp/it io/i is undera tf:ird jHirfij.] — 1. In an action for use and occupation where it is quite evi- dint that tiie defendant did not occupy under the plainlifl', or with his permis- sion, either express or implied, but under a third party, the plaintifl' will nonsuited. McDonald v. Bren- nan, v. U. C. R. 599. USES AND TRUSTS. As to the distinction between .* " trust" and a " use"— See Ganihle et al. V. Rces, vi. U. C. R. 397. TRUSTS. pmised the premises ithout tlie license of whis, no averment K'ssor had taiH liij drfi'ndtuit.'] — ■ us^e and oi-cupation, lir a leiral title to the ?re naked |)ossession is entitled to a ver- lot go further and iMit or contract be- nd the defi-ndant. I. U. C. R. 11>0. raqjiit io/i is under a In an action fur use here it is quite evi- idant did not occupy or with his permis- »ss or implied, but ■ty, the plaintifl" will clhiiuld V. Bren- 599. 3 TRUSTS. inction between u e" — See Gamble et C. R. 397. USURY. USURY. See Amendment, II. f.3. — Bills of Exchange ETC., VI. >; VIII. 1. — Money had and received, Ij. — Mortgage, 10. — New Trial, X. 15.— Witness, 8, 9. USURY. 439 Promissory notes hcariri'j^ interest before their date,'\ — 1. Notes given bearing interest from a period antece- dent to their date, are not usurious on that account, where it appears that the debt for which such notes were given was due at the time from which inter- est is computed. Gates et al. v. Crooks, Dra. Rep. 459. Mortirii^e securing an iisurions debt.'\ — 2. Where A. havinu; pur- chased land at sherilf's sale for S2/., and not being able at the time to pay for it, applied for a loan of the money to B., who was an attorney and had claims in his hands against the person for whose debts the laml was sold, and B. agreed to advance it on A.'o re- paying 13/. 2s. in three days; and A having receivt?d a deed of the land from tiie sherill", conveyed it to B., sub- ject to redemption on payment of 13/. 2s., and B. transmitted the bous on the loan, 50/. to his client, as s.- much received on his claims: Held, io ha usury in B. McDonnell ([ui tani. v. Kirkpatrick, iii. O. S. 324-. Promissori/ note nrisinsi out of usu- ry.] — 3. Where in an action against the makers of a promissory note for 61/. 5s. Od. it was proved that A. had an execution against the property of the defendants, and that the plaintilf had a note made by A. for the same amount as the oxecul.' :), viz., about 51/., and the dcff ndants obtained the note from the plainiiir, lutping by that means to stop A.'s execution, and gave the plaintiir iheir note, the subject of this action, for HI/. .")«., payable one year after (late with iiilcrest: Ifdd, in the absence of any further proof, that the note was void for usury. Dormi V. Bush ct id., Mich. Term, G Vic. Usurious cognovit — Judgment as- signed ivith notice — Stay of proceed- 1 ings.] — 4<. Wliere a plaintiff had been ' guilty of gross usury in taking a con- j fession of judgment from the defen- I dant, the Court stayed proceedings on j an execution issueil on the judgment on payment of the true debt and inter- ' est, although the jutlgment had been \ assigned, the assignee having had no. ' tice of the usury com])lair.ed of before he took the assignment. K?mpp v. j Forrest, Mich. Term, 7 Vic. I Promissory note — Plea of usurious forbearance — Days of gr(u:e'\ — 5. Where in a plea of usury to an action on a promissory note, the defendant stated the usurious lending and averred that it was on a promise to forbear for , twelve months from 28tli October IS-i'i, ; until 28th October 1843, and that the note was given ])ayable in twelve i months to secure the payment, and the |)laintill' demurred, because the note I was not due, inciudinif the thrrs days ' of grace, until the 31st of October, and therefore the contract was errone- i ously stated — the Court held the plea ; suliicicnt, as the three ilays of grace were the act of the law, and not a part of the contract of the parties. iWi> i Crae v. Reynolds, i. U. C. R. 36. I Qui tamaction — JS'onsuit for non- \ production of necessary evidence — '. Discovery thereof after triul.l — 6. Where in a (|ui tarn action for usury, the plaintill' was nonsuited for not pro- ducing certain promissory notes in the negotiation of which the usury had taken place, the only evidence otVered to account for their non-production having been a letter that they were not to be lound in the office of the judge's clerk, where it was sworn they hail been filed — the Court refused to set aside the nonsuit ujion alUdavit that they had been tound since the trial. l\(K)t ipii tarn v. Woodward, i. U. C. R. 311. Qui lam action — i vri/mce Itettvcen statements and proof.} — 7. In a (|ui fSglOf'^^ 440 USURY. VAKIANC£. if action for usury any variance between the statement of the time of the for- bearance laid in the declaration and the time proved is fatal. Fmscr (jiii tarn v. T/iompson, i. U. C. R. 314. Construction of M Geo. III. ch. 9, sec. 6— "o/-" for " aw/."]— S. A! though by the words of the provincial statute 51 Geo. III. ch. 9, sec. () against usurj* contracts*, bonds &c.. are declared void only when usurioui* interest is reserved and taken, yet the Court will construe " aruV to be "w," particularly as the statute 7 Wm. IV. ch. 5, sec. 3, declares in the preand)le ** that by law all contracts and assu- rances whatever for payment of money made for an usurious consideration are utterly void ;" and therefore a plea to an action on a promissory note, that the note was given to secure a debt and was for an usurious consideration for forbearance, was held good, althonsrh it did not state that the usurious inter- est was paid or received. Btnig v. Lewis et al., i. U. C. R. 357. All securities in furtherance, voi(l.'\ — 9. By the usury laws, all securities which may have been given in furthe- rance of an usurious transaction, with the knowledge of the person who took the security, are void. Armstrong v. Somerville, iii. U. C. R. 472. J^ote,indorsedm)er for an antecedent debt, not protected.'] — 10. A bona tide holder, without notice, who takes a bill of exchange or note in payment of an antecedent debt, and not upon a new consideration given at the lime by discount or otherwise, is not protoct(!d against the ofl'ence of usury by our provincial act 7 Wm. IV. ch. 5, sec. 3. There is no distinction in this re- spect between tlie efl'ect of our act and of the British act 58 Geo. III. ch. 93. Geddes v. Culver et «/., iii. U. C. R. 162. Luinhering trade — ILvrrioi/s advan- ces.] — 11. An atrreoment that A. andj B. should allow C. and I), (lunibereis | upon the Ottawa) in addition to legal i intorost.a further sum of four percent. upon all moneys advanced, for the pur- pose of ]a,etline out timber, is usurious arul void. Bryson et al. v. Clandinan, vii. U. C. R. 198. Lnvdter tuhcn nbsoluteh/,and not as sccKrili/ for siicli ad maces. — 12. If C. and D., mstoail of being mortgagees, holding the timber merely as security lor moneys advanced under such an usmious agrecnieut, had taken the timber absolutely in payment of their account for advances, then, although their account might have included usurious interest, the property, after it had so become theirs, could not have been divested on that ground. lb. VARIANCE. See Amendment, II. passim. — AuBi- TUATION AND AwARD, VI. (2), 16, 19.— Bail, II. 4..— Bn,Ls of Ex- change. ETC., V. 5, — Escape, 3.— Gt'AUANTEE.t). — LlBEI. AM) SLAN- DER, III. (1), 1. 2, 4.— Limits. II. 3, S. — MaLICIOI S PUOSECLTION, 2. — Minnomeu. — Parliament. 6. Rei'i.e v'N, ETC., 4 — Trespass, II. 4. — Usury, 7. — Verdict, 8, 9. Declarati(m on a jjemd hill — Pro- duction of a bond.] — 1. Where the jdainUlV declared upon a penal bill, and gave in evidence a bond with a condi- tion, held not a sullicient variance to set aside a verdict. It should, at least, have been taken advantage of by spe- cial demurrer upon oyer. — Dc Riviere et al. V. Grant, Tay. U. C. R. 652. Dctirrrn su/mii.ssion set out and that reel led hif the (iinird.'] — 2. In an artion on an award, with the common counts, the siibmissiim to ari)itraiion,as set out in the declaration, mentioned three defendants, and the award, in reciting that siilimission, only noticed two, but rel'erred to the rule by which the sub- mission was made as annexed to the award, in which rule the three defen- dants were named. Held, that the ANCE. 11 m of four percent. vaiiced,forthe pur- fmiher, is usurious et id. V. Clnndinauy (ihaolntely^and not 'i admncts. — 12. If »l'l)oiiig mortgagees, merely as security L-ed under such an t, had taken the n payment of their OS, then, although lit iiave included le property, after it irs, could not have lat ground. lb. \NCE. [I. passim — Arbi- WARD, Vf. (2), 16, ". — Bn,r,s OF Ex- 5, — Esc APE, 3.— LlBi;i, AM) Sla!t- 2, 4.— Limits. II. )l s PuosF.cnioN, — Pakliament. 6. 4- — Tia;si>Ass,II. -Verdict, 8, 9. i j)eniil hill — Pro- /.] — 1. Where the Mm a penal bill, and bond with a condi- illicient variance to It should, at least, 1 vantage of by spe- oyer. — De Riviere y. U. C. R. C52. ion. set. ok I, and that /.| — '2. In an action !u' common counts, 'l)itraiion,as set out , mentioned three • award, in reciting y noticed tno, but by which the sub- as annexed to the lie the three defen- . Udd, that the VARIANCE. variance between the submission set out in the declaratioii and that recited in tiie award was immaterial, as ihe submission itsell'agreed with the ileda- ration. Hale v. Mailueson, Dra. Rep. m. In statcmait of lili('.l.'\ — 3. Iniuia- terial averments need not be proved, and variances in the statement of a libel, not altering tiie sense of tlie part truly set out, are immatLM'ial. Hcuail- to)i V. Durwell, ii. O. S. .'iO.">. Action, for mrsnr. 'projiis — Variance in xtatcment of tlte jadinncnt.^ — 4. In trespass for mesne prulits of close of husband and icifr, and proof of judgment recovered in ejectment on tiie demise of the irifc alone, licld a fatal variance. Asldon et icx. v. Kee:ar. Mich. Term, 7 Wm. IV. Trespass aminst a hail iff — Va- riance in statement oftcarrant.^ — 5. Where in trespass fortaliing goods the defendant pleaded a justification as a fiheri it's bailitf, under a warrant directed to him to make of the (lefendaiit's goods a sum recovereii lor costs in case, and the warrant produced was lor damages and costs in (issumpsit: Held, a fatal viiiiance. Jif/iflc v. Garner et al., Trin. Term, li »V 4 Vic. Action agai)ist sheriff ^s svrrtics — Variance in statement of writ ] — (i. Where, in covenant against a slierilfs surety, the plaiiitilV, in assigning a breach, set out a jiulL'ment recovered at the suit of the piaintilf on "a. pro- mise and undertaking,'"' and a writ of fieri facias issued thereon,to which the shcritl" had made a lals(> return, and the detendant pleaded that no writ of fieri facias had issued on the judsment, to which the plaintitf re|)iietl, setting out a fieri tacias, which he alleged had issued on that judL'inent, but which re- cited a recovery on '■^promises and undertakings,'" aiul the delt'ndant de- 1 murred specially for the variance : Held, ihat the replication was sullicient in this action, and that as the ^hcrifl' could not have made tin; variant'; a 3 K VAKIANCE. ' 441 I defence after having acted upon the ' writ, his surety could not. Roy v. : Ilandlton, Hil. Term, 4 Vic. I In statemeiit of a ji/dgmrnt re- I covered.'] — 7. The delendaiit pleaded : a set oil' of a judunieiit recovered in debt on boiul for '2'2'.il. Ids. Sd., being 200/. debt, Is. damages. and 231. Us. '3d. costs. To this i)lea the plaintiff replied nul tiel record, and on the pro- duction of the juiignient it ap])eared i that the ])ostea was lijr the recovery of , the debt, damages and costs, a?ul also , 55/. 15a'. for damages assessed on I account of breaches of the bond : Held, no variance, and that the piaintilf was i entitled lo judsrmcMit. Dowerman v. I Brown, ii. U. C. R. 409. In statement of a deed. — Hoiv taken advantage of.] — S. When a plaintiff, declaring upon a deed, sets it out un- truly, but in a particular not material to the action which has been brought uj)on the deed, the defendant, wishing to take advantage of the variance, should plead non est factum ; he can- not crave oyer and demur. Boulton et al. V. Wcllcr, iii. U. C. R. 372. Misnomer — Hoiv to he taken advan- tage of.] — 9. The several members of a firm being sued as indorsers of a pro- missory note, one of them, by mistake, was called Charles Jones, his christian name being William: //rA/, that the variance could occasion no difliculty on the trial, the only question being as to tht^ identity of the ])arty. The de- fendants, if they desired to take an ex- ception, should have moved under the statute 7 Wm. IV. ch. 3, to compel the plaintiff to amend his declaration. Ketrhum V. Jones ct at., v. U. C. R. 4(i0. In statement of a ca. sa.] — 10. An al. test. ca. sa. is still a ca. sa. ; and therefore when a defendant justified under the alias and the plaintiff replied that the said writ had been set aside, and then proved a rule of court dis- charging the arrest under a. ca. sa. : 443 VARIANCK. TENOiTIONI EXPONAS. jli!| !.■ ' S;ift ;i mi Held, no variance. Robertstm v. Meyers, v\\. V. C. R. 423. I In staione/.t of a recognizance of 6aiL'\ — 11. Variance between a re-i cognizance of bail, entered into in a foreign country, as stated in the decla- ration and proved at the trial. See Short V. Kingsmill et al., vii. U. C. ' R. 350. I In statement of former action.'] — j 12. When, to action brought by plain- tiffs on the connmon counts, the defen. dant pleaded a prior suit between the same parties for the same identical ' cause of action, and prayed an inspec- \ tion of the record, and it appeared, on inspection, tiiat the plaintiff's name in ' the former suit was James W. Whyte, : and in the second James M. Wiiyte : | Held, a fatal variance. Whyte et al. ' V. Cameron, vii. U. C. R. 378. ! 13. Qucerc. — How far the declara- tion in the two suits, varj'ing as to the number and nature of the common counts and the amount claimed, would be considered fatal 1 lb. In statement of a bond.] — 14. The plaintiffs, i)y the name of the Council of the District of Brock, declared in debt on bond : the declaration stated that the defendants acknowledged them- selves to be held and firmly bound to the said plaintiffs; the bond, when produced at the trial, was found to be given to the " Municipal Council of the Brock District ;" the bond was not set out on oyer : Held, that this variance was not fatal. Brock District Council v. Boiven et al., vii. U. C. R. 4-71. Bond %vith condition — Declaration on bond merely.] — 15. The plaintiffs, who had taken from the defendants a bond for the due performance of a col- lector of rates' duty with a condition in it, prescribed by certain municipal by-laws, declared upon this bond as upon a common money bond, without setting out the condition; the defen- dants pleaded non est factum : Held, that upon this plea, the condition being only a defeazance and not a part of the bond, as set out without the condition, was a valid bond ; that there was no fatal variance, and that the plaintiffs were entitled to recover. It would have been better, however, for the plaintiffs to have set out the condition in their decl/iration, am^ to have assigned breaches. lb. In statement of a bill of exchange.] — 16. Where a bill had been so de- clared upon as not to shew it to have been a foreign bill, and when produced at the trial it appeared to be a foreign bill drawn in Toronto on a party in New York: //e/e?, that this was not a variance upon which a nonsuit could be granted. Boyes v. Joseph, vii. U. C. R. 505. VENDITIONI EXPONAS. See Execution, 8. — Sheriff, II. 9. Teste and return, when against lands.] — 1. A writ of venditioni ex- ponas against lands and tenements, having but a few days between the teste and return, is irregular, ahhough the exigencies required by the provin- cial statutes respectingthe teste,deli very and return of the fi. fa. upon which it was grounded may have been complied with . Armour et al. v. Jackson, Tay. U. C. R. 146. 2. It is no defect in a writ of vendi- tioni exponas against lands that it has not three months between its teste and return. Landrum v. McMartin, i. U. C. R. 394. [See 2 Geo. IV. ch. 1, sec. 20.] 3. It is not necessary under the statute 43 Geo. III. cii. 1, that there should be a year between the teste and return of a writ of venditioni exponas against lands. Doe dem. Dissett v. McLeod, iii. U. C. R. 297. Vcn. ex. authorises a sale though return-day be past.] — 4. Where a levy is made by the sheriff under a writ of fieri facas and he returns goods on hand for want of buyers, and a writ EXPONAS. VENIRE OE NOVO. VENDS. 443 n EXPONAS. 8. — Sheriff, II. 9. ;ct in a writ of vendi- linst lands that it has between its teste and m V. McMartin, i. of venditioni exponas is then sent to the sheriflf, that writ will always be an authority to the slierifl' to sell, though the relurn-day be past. The Bank of Upper Canada v. McFarlane ct ai., iv. U. C. R. 396. Improj)er return — Remedy.'] — 5. Semble: That where a sheriff, under the above circumstances, returns to the writ of yen. ex. that " be is unable to sell," he may be liable to an action for false return, but he cannot be attached. lb. Entry, seizure and sale under, not justijidble. — 6. Neither a sheriff nor his deputy can justify an entry, seixure and sale of a defendant's goods under a writ of venditioni exponas. StuU v. McLeod, Trin. Term, 3 & 4 Vic. VENDOR AND PURCHASER. See Title, and the references there made. VENIRE (AWARD OF). See Record (Nisi Prius), 5, 6. VENIRE DE NOVO. 1. When there is a special count and common count in the declaration, the effect of the special count being bad when special damages have been assessed is, that there must be a venire de novo, unless it can be said that the verdict was given wholly upon evidence applicable to the common count alone, and not to the special count. Dodge v. Muir, vii. U. C. R. 526. 2. Trespass for breaking and enter- ing the plaintiff's car-house, and for seizing and taking rail-cars, &c. Pleas — 1st. Not guilty ; 2ndly. Plain- tiff not possessed of car-house ; 3rdly. The car-house was the freehold of A., and the defendant, as his servant, &c. broht and entered the car-heuu, and committed the said supposed trespasses in the declaration mentioned ; 4thly. As to seizing &c. the cars and con- verting them, &;c., that they were not the plaintiff's. The jury gave a verdict for the plaintiff on all the picas but t/ie third, and that they found for the de- fendant. No damages were given to the plaintiff, the third plea being taken to bar the action : Held, on motion for a new trial, that as the third plea left unanswered the taking of the rail-cars, the plaintiff should have a verdict for nominal damages, and that a venire de novo must bo ordered, unless the de- fendant would consent to such a ver- dict being entered. Maclem et al v. McMicking, iv. U. C. R. 264-. VENIRE FACIAS. See Jury, 3, 10. — Jury Process- Record (Nisi Prius), 9. VENUE. See Constable, 1, 3. — Informa- tion, 5. Action on bond-Changing venue.'] — 1.. The Court will not change the venue in an action upon a bond- con- ditioned for the performance of an award without special grounds. Zos- sing V. Horned, Tay. U. C. R. 103. [So Martin v. Davis, xi. M. & W. 734.] Issue of writ in one district, venue in another.'] — 2. The venue cannot be laid in tlio district of A. an outer district, or in the Home district, when the writ has been issued in the district of B., also an outer district. Craw- ford V. Ritchie, Tay. U. C. R. 104. Amendment.]— 3. The venue being laid as in the last case, the plaintiff was allowed to amend. Jb. Action against sheriff— Sheriff tin. able to attend.] — 4. The Court will not change the venue where a sheriff is defendant, on the ground that he cannot attend at the trial. Brock v. McLean, Tay. U. C. R. 312. IHPW -J" 4-14 VENIJK, VKBDIOT. i'l lil Hi Mere service of order for chnvpng, insH/ficient.Ji — 5. A voniK' is not chnncietl hy a jiul^'c'sonlernnd service alone. JSTNuir v. Skvldoii, Tay. U. C. R. 598. [Also see caso 10. infra.] Clumi^c,at the i mtancc nf 'plain- tiff after issue jaiiud.'] — (i. Tlie I Court will not cliangl' tiio venue on ! the application of the plaintitV alter' issue joined, miless a very special ground be laid for it. Crooks v. House, Hi. 0. S. 308. [See a history of the pnictico as to chanjje of veiiuo fully entered into ;i!.(| rxpiaiiied in Morney General v. Churehill, viii. M. & VV. 171 .J Action on hail bond by assignee of siteriff — VenHcS\ — 7. Do«;laration by assignee of sherill" on a bail bond. — Venue in the margin in the Homo dis- trict. — Assignment of the bond statetl in the declaration to be at S. in the Western district, without laying any venue for this act in the Home district: Held bad on special demurrer. Bml et al. V. Field et (d,, iii. 0. S. 2."JG. Action against earners — Affidavit fm- chaiiiie^ — 8. In an action on the case against carriers the venue cannot ; be changed on the common ailidavit, | Ham V. Meritcrson et cd., Mich. Term, 5 Vic, P. C. Jones, J. Bringing back, at the instance of plaintiff.'] — 9. After the venne has been changed at the instance of the [ defendant, the Court will not, unless | under very special circumstances, al- j low the plaintitf to amend his dedara- i tion so as to bring it back to the dis- I trict where it was originally laid, j Smith V. Cotton, i IJ. C. R. 397. [Proper poisons to niaive affidavit in this case. — See Williams v. Ili'ji^s, vi. M. ^ W. 133.] If' order gmnlciltlie (die ration must in fact be madr.^—M. Though an order to cliangc the venue has been granted and served, unless the venue be in fact changed by taking out the rule and making the alteration in the record, the plaintid' is at liberty to pm- ceed to trial acconlinsr to the original venne. Ibirnbij v. lLirnby,\\\. U. C. R. 274. Local action — IToie cause may he tried in. (uioOur district.'] — II. In a lo(;al action it is irregular l()r the plain- tiff, if he desire to try the cause in another district, to obtain an order to change the venue. The application should be to enter a suggestion on the roll to try the cause in another district. Doe dim,. Crooks v. CiDiiming, iii. U. C. R. bS. VERDICT. See Action, 6. — Amendment, III. passiiu -[kuegulaiutv, 4. — Judo- MKNT. 21 et seq. — Ni;\v Tkial, X. 13, l(), 24..— Nonsuit, U.— No- tice OF Tkiai., 8. — Recoro (Nisi Puas), 8 etset[. — Trespass, II. 9. Fratid.'] — 1. Fjaud cannot be pre- sumed, contrary to a verdict. Muren V. Lyon, Tay.'U. C. R. 510. Several counts — Effect of abandon- ment ofallbitfo»c.']—2. If a plaintiff at a trial abandon all the counts in his declaration but one, on which he ob- tains a verdict, the defendant is not entitled to a verdict on the other coinits. Gates V. Crooks, Dra. Rep. 189. Entering verdict on one cmtnt, abundirning tlic rest.] — 3. Where in aa action on 32 Hen. VIII. ch. 9, a verdict was taken upon four counts of the declaration for the plaintiff, and the deltMidant moved to arrest the judgment on the ground that some of the covmts were bad, the Court allow- ed the ])laintilf to enter the verdict upon one count of the declaration, abandoning the rest. Beasley quitain V. Cahill, ii. U. C. R. 320." Several issues — Failure on one — General verdict on another.] — 4. A defendant in an action of trespass fail- ing to ])rove the surrender of a term of years from the plaintilT to himself rcT. is atlihony topm- Unir to tlie original JLirnby, iii. U. C. Toin cause may he islricL'] — 11. In a ijuiar liir tin; plain- try tlu' causo in )i)l!iiii ;m order to Tlio ii|»])li('ation sugi!0:lea of liberum tencinentuiu, may neverthe- less conj^istontly hold a ueneral verdict upon another issue deiiyiny; the close to be the close of the pliiiiitilV. Mc- Neilv. Traut.,\. U. C. R. J»l. Several issues — (renenil venlirt — Objection t/itrt defendant entitled to jwwf.] — •''. Where there are several issues raised, and the plninlill' has a verdict upon the whole record, ilforins no good objection to his recovery that some of the issues should have been found for the delendant, if there be sufficient without them to suppc-t the verdict and they be material. Raie- and v. Tyler, iv. O. S. II;")?. Several issues — General verdict not disposing; of such issues."] — tJ. Where there an; several issues in a cause and the jury find a general verdict lor the plaintiffs, which does not dispose of the specific issues raised, the Court will grant a new trial. McMartin v. GraJiam et al., ii. U. C. R. MGf). Entering vcrilict o7i different count fromone succeeded upon at tlie trial.'\ — 7. Scmljle : That a party may apjily his verdict to a dilferent count from that on which he elected to take it at the trial, wiiere the eviilence given will support such count. Ponton v. Moexhj, vii. U. C. R. 301. Action on note for 40/. — Produc- tion of one for 4'i/. — Verdict.'] — S. Where on an assessment of damages on a promissory note stated in the de- claration to be lc)r 40/., a note for 4:2/. was produced in evidence, an amend- ment of' the record to correspond with the proof was refused, but the Court allowed a verdict to be entered for tiie amount of the note set out in the plead- ings, on the note being filed as the note on which the action was bnuijht. Bank TTpper Canada v. Craufard, Trin. Term, 5 &. () Wni. IV. Trespass — Description of close — Case disprm-ed-NoHsuit.'l-'t). Where in trespass quare clausiim fregit it ap- peared that the only injury complained VERDICT. 445 of, and the only one in evidence before the jury, was the destruction in part of a mill over tlie waters of a river, and not on the land included in the description of premises in the declara- tion : Held, that the verdict found for the plaintiff was incorrect, and a non- suit was entered. CannitJe v. Can- nijfc ct al., i. U. C. R. 551. Action for escape — Verdict — Judg- ment 'without consideration.] — ' 10. The Court refused to set aside the ver- dict in an action for an escape, on the ground that the judgment was without consideration. Fayne v. M'Lcan, Tay. U. C. R. 441. Debt on bond — Breaches not assign- ed — Verdict for 2^c)ialty.] — ll. In debt on bond, to take a verdict for the penalty, where breaches have not been simgested or assigned in the replication, and the bond conies clearly under the statute S & 9 Wm. III., is irregular, and the verdict may be set aside. Brock District Council v. Dowen et «/., vii. U. C. 11.471. 12. SeiiMc: That the breaches may be sugL'ested even after verdict, and then the plaintifl' may go down before a jurj' and assess his damages. lb. Verdict for defendant set aside, the plaint ijl' being entitled at all evctits to something.] — 13. Where to an ac- tion brought by the principal against the sureties of a clerk for embezzle- ment itc, the sureties pleaded that the plaintifl" was damnified of his own wrong in allowing tiie clerk to remain in his office after he had become aware of the fraud. Held, that though the franii of the clerk was known to the princi|)al long before he dismisserl him from his employment, still, that as this knowledge could only apply to that portion of the monies taken by the clerk after the principal had been aware of his conduct, the plaintiff should have had a verdict for some- thing, and that the verdict for the dc- I'ciidants (the sc ^ .ies;) should be set rsmmmm 44C WAIVER. WAIVER. aside. McDonald v. May et al., v. U. C. R.r)8. Verdict, subject to an avard — No award — Verdict set asidc^ — l-t. A cause was reforreil at Nisi Prius and a verdict taken for the plaintiff subject to reference ; award to be made by a certain day, witb power to the arl)i- trators to enlarge the time ; they did enlarge it once, but no award was made, and after that day had passed the defendant's attorney was asked by the plaintiff's attorney to consent to a further enlargement and declined ; no application had been made to the arbi- trators; the Court held they could do nothing more than set aside the condi- tional vertlict. Moulson v. Eyre, v. U. C. R. 470. [When judgment allowed on a conditional verdict of this kind — See Judgment, 21 et «eq.] VOLUNTARY DEEDS. See Fraudulent Deeds etc., 12, 13, 14. WAGER. See Gaming, 1. WAIVER. See Appearance, 5. — Arbitration AND Award, VI. (2), 11. — Ar- rest, I. 40 Execution, 8 Insolvent, etc., IS. — Interlo- cutors Judgment, 11, 14, — Ir- REGULARlTr, 10. — JuRY, 6. — Practice, I. 19 ; II. 47 ; III. 8.— Set off, 13. — Sheriff's Sale, 3, 4. — Writs of Trial etc. Acceptance of notice of trial — Pre- vious irregularities.^ — 1. Where a defendant, after plea pleaded, obtained an order to stay the plaintiff's proceed- ings until security was given by him for costs, and the plaintiff delivered him a bond lor such security, and at t!ie same time gave notice of trial, and the defendant signed an agreement to admit documents for the plaintiff al the trial, but alU'rwanis returned the bond to the plaintiff, and gave him notice that he would movf to set aside his proceedintjs if he went to trial, the plaintiff however tried his cause, and, on the motion to set the proceedings aside, his rule was discharged, as he had waived any irregularity or insufficiency in the bond. Doe dem. Leonard v. JMycrs, ii. U. C. R. 382. Writ of triid to District Court — Apprarn ».cr of defend iwl there — Pre- viouf( irreauliirities!\ — 2. A defen- dant, liavini.' apjx'ared and examined evidence on an assessment of damages which bad i)ei'n carried down to a district court by a writ of trial issued I'rom the Qucpn'.s Bench under our statute 8 Vic. cli. 13. sec. .54, has, by sucii appt-arancf, waived any irregu- larity in the prior proceedings in the Queen's Bench, and cannot therefore move to set aside such proceedings under sec. 55 of that act. S?;w// v. Beaslcy, ii.. U. C. R. 141. Asians further time to plead — Pre- vious irregularities.^ — 3. The plain- tiff enters common bail for the defen- dant, without having filed an affidavit of the service of process ; declaration is served and plea demanded. The de- fendant moves for further time to plead and to change the venue, the plaintiff afterwards signs interlocutory judg- ment, which the defendant moves to set aside for irregularity in the entry of common bail : Held, that the entry of common bail by the plaintiff, without filing the affidavit of service of process, was an irregularity only, which the defendant by liis subsequent proceed- ings had waived. Bridges v. CaXt iv. U. C. R. 127. [See two rases somewhat similar — Appeai* ANCE. 5 — Irregularity, 10.] Ejectment — Landlord applies to defend — Previous irregularities.]-— 4. Where in ejectment tlie judgment IVER. re notice of trinl, and led an agreement to for the plaintifl'at the lis returned the bond nd ^'ave liini notice ov<' to set aside his J went to trial, the tried liis cause, and, set the proceedings was discharged, as any irregidanty or ;ie bond. Doc clem, ■s, ii. U. C. R. 382. to District Court— fotthuil time — Pre- '/V'.s.] — 2. A defen- i>ared and examined isessnient of damages carried down to a !i writ of trial issued 's Bench under our , 13. sec. 54-, has, by , waived any irregu- r |)roceediii2s in the anil cannot therefore le such proceedings tiiat act. Svmll v. .R. HI. r time to plead — Trt. ics.'] — \i. The plain- m bail for the defen- ding filed an affidavit rocess ; declaration is lemanded. The de- further time to plead e venue, the plaintiff interlocutory judg- defendant moves to jUlarityin the entry of rhl, that the entry of the plaintiff, without of service of process, rily only, which the subsequent proceed- . Bridges V. Case, pwhat similar— Appeai- IRITY, 10.] Lnnd/ord ajrplies to s irregularities.]— jtment the judgment WARRANT. WARRANTY. 447 against the casual ejector is irregular,) Seal.]— 2. Semile: That a warrant and the landlord, wJien first applying 1 having no seal does not make it invalid, to a jiuliie in chambers to be admitted Fraser v. Dickson, v. U. C. R. 231. to defend as landlord, takes no notice | Ordering detention till costs paid.] of the irregularity, the irregularity is! waived. Doe dem. Henderson v. Roe, iv. U. C. R. 366. Arhit ration — Eitlifr jwrty proceed- ing waive previous irrcgularilies.] — 5. Where either party to an arbitration objects to what he conceives to be an irregularity in the mode of conducting the arbitration — as, for instance, against a certain person administering the oath to the witnesses — and takes his chance of the award, he cannot afterwards be permitted, on the same ground, to impeach the award. Sliick v. Mc- EalhroH, iii. U. C. R. (it). WARDEN. See District Council, 16.- DAMUS, 2. -Man- WAREHOUSKMEN. See Carrier, 5, 12, 16. — Delivery Orders. — Money Paid, 4. — 3. A warrant to a constalile to com- mit for contemjit, containing a direction to detain the party for the space of two weeks and until ho shall pay tlie costs of iiis apprehension and conveyance to gaol, is defective. Clarke et al.. In re, vii. U. C. R. 223. For an indefinite time, or till costs paid, tvithout stating the amount.'] — 4-. A magistrate's warrant of com- mitment for an indefinite time is bad. A warrant of commitment is bad vviiich directs the prisoner to be kept in cus- tody till the costs are paid, without stating what is the amount of costs. Dawson v. Fraser, vii. U. C. R. 391. 5. QufPre. — In a case on arrest, for want of finding sureties for the peace, is It necessary to state on the face of it that the justice had information on oath which would justify liim in bind- ing the prisoner to keep the peace ? 3. Q. SemLle. — Tiiis would not be necessary in respect to warrants com- mitting prisoners upon charges of offences committed. lb. WARRANT. Sef Arrest, IV. 3. — De Injuria, 3. — Distress, I. 11. — Escape, 21. — False Imprisonment, 5, 7. — Gaoler, 2, 3, 4. — IndorsemenTj I. 3. — Magistrates, 2, 3, 5, 6, 12. Direction of search warrant.] — 1. Held, that the direction of a warrant to the constable of Thorold, not naming him, to execute the warrant in the township of Louth, was good. Jones V. Ross et al., iii. U. C. R. 328. [So a warrant directi'd — " To I he messenger of the said court, and to his assistunts, and to the governor or keeper of her Majesty's gaol of the castle of York," is sufficient, without naming the messenger. Ex parte Good, xvi. M.&W.462.] WARRANT OF ATTORNEY. Action by attorney for his fees — Production of warrant.] — A plaintiff and defendant having settled the action between themselves without paying the attorney's costs, the court refused to make the attorney produce his war- rant in an action instituted against the bail to recover those costs. S/tatik- land V. Scantlebury et al, Tay. U. C. R. 306. WARRANTY. Action — Plea of not guilty.] — In an action on the case on the warranty of a horse, under the plea of not guilty, the warranty is put in issue. Honey- \well V. Davis, ii. U. C. R. 63. 448 WATER. WATKK. WASTE. Injiinj to (I iriUrr coKisc, iiijuri/ to See Amk.nd.mkst, TTI. 9. "' •ihiihoiuhI ri'jht — Ni ir t/iu/.]—-S. Ar//o,>—r,ir/irs- H'/Hif (inm,(nls ^" '"j"'y ''> !• W"!'''' I'oiirso is ccmsi- fortv/7^^•^;.— All action on the (lis.- ii)r ''^'''^'^' "•"' "" "'.i'"'}' '" •"' |M'ini;iiH'nt a waste niav I..- hioniilit inuirr Eiiw. I '■'^"'.■""1 "' ^^''li' '' I'^'^f ilu' c.uri will I.ch.J.hvliini in ivrnain.lor or ivvor- i -'"'" '''^' l»i""i"" ^ rnnv (niil.alllioiiirli sioii for litl- or vi-ars ; and wlicro land |''^' l"'"''!'''''' !iino,nil to l.o rfcovored was dcvisrd li.r lifo. \\ itii a rrs(-rvation ' ''^ " ^''■''''■''" "'">' '"" ''^' ""■^'•- ^'yV"'''- of the oak tiinher tlit-roon. it was In-ld , '■<'"'"' ^ • ^'/'////'"A Tay. I . C. H. oiJO. that a jum'er to dispose of oilier de. I Puli/ir /nn'sditff — I'n'ritlr (ir/inu.] scriptions of tiinlier was not tlicreiiy I — ■[•. A pfisdii llirowiiii.' matter into implied, and that the tenant lor lill- ' was guihy of wa^ste in ilisposin;: of such other timber. Tat/lurv. Taij/ur, Easter Term, 1 VVm. IV. \vati:r. See Arbitration a.nd Awaud, IV. (3), 1, Vi.— Case (Action o.n the), 3,9. — Crown Grant, 9. — Easement, 3, 4-, .'), 6. Right to use. — 1. Tlie right which an individual has to a pulilic naviiralile water, in its pure and natural stale, is not foundeil upon tlie jyossession of the land or of a mill or house adjoin iiiL^ the water, but simply upon the same <'om- nion law right which every other indi- vidual has to use the wafer in its un- adulterated state, whether he possess lands, mills or houses on the bank or not. Watson v. The City of Toronto Gas Lidit and Water Companij, iv. U. C. R. 158. 2. A proprietor of land on a stream has a right to the water flowinif past him in its natural course, undiininished in quantity and quality ; and nothing short of a grunt or twenty years' use (which presumes a grant) of the water, in a particular way and for a sj)ecial pui'pose, can entitle some one proprie- tor on a stream, in violation of this liulit of all, injuriously to divert or yvn back the water from or upon |>rnprietors living above or lielow him on the stream. McLaren v. Coulc rt al., iii. U. C. R. 299. [\cc.— Acton V. Blundell, xii. M. & W. 349.J Lake Ontario, or any oilier iKiviiialile water, is liable both to an iiulictiiient for coniini'tiiiL' a jinlilic nuisance anil to a priviiie ai'iiim at the suit of any inilividual distinctly and iieculiarly injured tiier<-by. Wnlso/i v. The Citif of Toronto tins U'jiit and Water Coin]Hitiy, iv. IJ. C. K. 158. hiccn&r, I) If a jiarti/ hcrln.u: llir ri;:/it, todii.ollicr to use it — i'..i(iss — Artinill] — ."). Where llie plaintills, wiio had built mills on a strrani by indenture, liianted a license to the defendant to make a raceway over their lands lor a mill to be built by the defemlant fur- ther down the stream, jtrovidi-d that the. water was not thrown back theivhy nor any injury or damage occasii .'leii to the plaintills' mills, and after the defendant's mill had l)een orccleil, hy an acctiinulalion of ic(( on the bv-wnsh, the water was forceil back on the liiainiitls' mills; //cA/, that the plain, tills might maintain an action for such injury, and that case, and not cove- nant on the indenture, was the proper form of remedv. Ea.stirooil i- ■y to .'I iii'nuiuii'nt I case llu- couil will I now trial, allhmiirli (Mil to lie I'ocnvereJ )i l)c iarifii, Apjilf. Tay. I'. U. U. ■.)%. r — Ptirair (ir/ion.] ii'owinif lUiitttT into aiiv oihcr naviualile )tli to an iiiilirtment (iiiilif. miisaiicc ami II III tin- fuii ol" any llv and i»L'ciiliai'ly " Wiils(j/i V. The (Ills Li'Jit and , Iv. IJ. C. K. Ills. /7// huriii.ii llic rink, i — E.iccss — ylciw/i.] jilaintill's. wiio had ;ti.aiii liy indenture, to the ilofendant to 1V01' their lands for a y tlio (leliMulant fur- rcani, iinnidcil that liirowii hack thfivliy ■ damaji;e occasii iietl mills, and after the iiid been enrted, by if iro on the hy.uash, forciMl hack on the Ih'/tl, that the i>lain. lin an action tor such case, and Piot cove- itvu-e, was the proper EdsliriHidiL al.v. erm, f) Wni. IV. : coni inning a vui- nut tliosc. vlio cirded 1 the time of making itV sustains no injuiy, avinir hiiilt a mill, he ;e.oytlie dam penning ipoii the mill, lie has n aiialnst tho»e who le can only sue those iin;j: the dam at the ', 'McLaren v. CooP R. 299. WATER'S ED(iE. See Crown Grant, 9. WAY. See Easement, 1. — Evidence, I. 1; II. 12. — Highway, passim. — Trespass, I. U. riciinfri'jlit of way.'] — In trespass qiiare clausum fre^'it, a jilea of rif,'ht of way under a deed must shew the par- ties to the deed. Smith v. Umith, Trin. Term, 3 vV 4. Wm. IV. WHARVES. Sec Distress, I. 10. WILL. Sec Distress, I, 12. — Estate.-Ev- idence, 1.3; II. 6 ; VII. 5.— Ex- ecltou etc., I. 4. — Infant, 5. — New Trial, II. 1. — Tulst etc., 3. WEEKLY ALLOWANCE. Sec Insolvent etc., passim. — • — WELLAND CANAL. 4 Gcn.W.ch. M—Witlxlmirnl of dircdnrs.'] — 1. Wiiere in a clause of a prior statute tiic two directors of tiu' Welland Canal havint; the smallest nuniher of votes of the five chosen in a former election are dcdaretl to he ineligible at any suhsecpient election, and iiy a subsequent statute the num- ber of directors was fixed at seven, and that statutt- named the persons who were to constitute the board until the next election — the Court lield that two of the board havinsr vacated their seats by non-residence, rendered it unnecessary for two of the remaining five to vacate their seats, as liaving the smallest nHnd)er of votes at sucli sub- sequent election. Rex v. The Wcl- laml Canal Cotnpafiy, Tay. U. C. R. 410. Tolls.']~2. The Welland Canal Company are entitled to tolls for that part of the canal commonly called the Chippewa Cut. Welland Cannl Cnm- Jiany v. Warren et al., Hil. Term, 1 Wm. IV. WHARFINGER. See Carrier, passim. — Cobourg Harbor Companv. 3 L When sufficient iritlioiit registry,'] — 1. Senil/le: That a will is sullicient to give an estate although not register- ed, |)rovided no previous transfer of the pro])erty has been registered. Dnedeni. Link V. Ausnian, Tay U. C. R. 300. Testator dying abrotul — Time far registry of icill.\ — 2. By the opera- tion of the registry act 35 Geo. III. ch. 5, sec. 15, the devisee claiming under a writ imule abroad, and where there has been no " inevitable dillicul- ty" in the way of registering, is not allowed a period of six months within which to register the will ; so that if the heir to the testator convey for value, and his grantee register at any time prior to the registry of such a will, the title is lost to the devisee. Qitccre, as to the effect of the act 35 Geo. III. 5 in registering the wills of persons dying abroad ? By the act 9 Vic. ch. 34, sec. 2, all devisees witJt- oitt exception as to the will being made abroad, or the testator dying abroad, are allowed twelve months within which to register the will. Doc dcm. Ebcrts et ux. v. Wilson, iv. U. C. R. 38«. [See the necessity for infant devisees to reiiister the wills under which they claim — Infant, 5.] Registration — AinljiguityJ] — 3. It is no objection to lot 22 passing under a will that the registration of such a will changed in its most material contents can afford no information on tlie face of it as to what i'nds are af- fected by it. Doc dcm. Lowry v. Grant, vii. U. C. R. 125. What amounts to a damsel — t. The words in a will, " J have already 450 WILL, V IKI.. pviMi to my SOI) John lot nuiiilxToiie," do iidf coiisliliili' a devise. Dov dcm. Umil/i V. J/'//(r.s ii. 0. S. .SOI. Efrt of /7/'\av/ in/s/.]—:). Tlie devise ol' an estate is not uliolly void heeaiise the estate has heen ehai'ijeil to siii/if c.rtrnL with an ilh^iial trust. Dor ilcm, Vancott v. Redd, ill. U. €. R. 244. Dcrisr siiIjrrL to an annuity.^ — (i. Where a testator h id hoiirid hiinself by liond to pay to liis motiier 1-/. U).s. annually, and dc\ised partol'liis hrids to liis hnithers on eonditioii tiiat they r-hoiild [lay to his luothi r ['2/.. lO.s. per aniinm, and pay all his just delil-.ami made iheni lii- executors : 7/(//.tiial at law till' le^acv couM no! he eon- sidefed as a salisiiiction ol' the aiuiuity un the liond, and thai the mother was oiitilled lo liotii. Culcw CV/r, Easter T^ eriM, Vie. Pr/soHo//!/ — Lift' estate.]—!. A devise ol' the use, possession and oc- cupation of n dwellina; liouse and |)re- iiiises, with land attached, together with furniture, j)!ate, linen, china, liinary r.nu other elVects therein at tin; linieot tlie deatli of the testator, to occupy, jiosscss and enjoy the said house, lainl, furiillurt: and premises during tin; natu- ral life of tlie devisee, does not yive such an interest in the personal pro- perty so devised as to enahle the de- visee to dispose of it absolutely by will ; and the executor of the t<)stator giving notice to the executors of tiie devisee, may, a' a sale of such pro- pertv (by the exe Mitors of the devisee), purchase, and sulise(|uently on un ac- tion brouLdit resist the payment. j}iek- so/i et id. V. Ulreei, i. U. C. K. hSO. Particnhir fots, tlinuifh imivoiwrhj miDdierid, '/)fiss iDider a genera/, de- it';;,".] — S. Whore a testator, after de- visiiif^f to his wile l()r life all his reid estate, stated the lots ef la ml of which it was compo.sed, and amongst others, the front Inilf of a lot of which oidy the rear half belongeil to him : Held. that the wife took a lile cslnte in tliu rear half under the general terms of the \\ ill. Doc dem. Taylor v. Peter- so/i, iii. 0. S. 497. [Al.so see Kviiience. I. 3.] Ca/ieeNiitiit/i — TV hot males such (Ol act complete — Tlw situation of an heir leheii Jiadins; svck jxipers.] — 9. Where A. meaning to make a new will and having the draft with him for that pur|)ose, has cancelled the first will, not by making obliterations and alterations in the body of it, but by des- troying the execution, as by tearing off liis name and seal, and then dies sud- denly before he has executeil the other will: 7/cA/, that A. under such cir- cmustances ilies intestate, llelduhn, that the heir at law findiiiir such old will cancelled, and the draft uith it, is not called upon, in the absence of any imputation .)f fraud, to account for the cancel'.ition of the old will. Queere: When the name ami seal of a testator appears to have been struck out of a will, should the animus cancellandi be still left as a ijue.ct — Church Tern- I, A will is in con- a " conveyance." Tcfore of the Itith Vic. rh. 74, vie., Kyance," a person I as grant by deed, of England for the . Doc deni. Baker R. 44. "hot. perfect as a rch Tc/Hjmrn/ilics in his will in 1843; codicil to the will new executor " of Dve," Held, thai WITNESS. the codicil was a confirmation and not a revocation of the will, and that the will must be still considered as a will made and executed in 1843. Held a/so, (McLean J. dissenticnte), that the will as a conveyance was perlectat the time of its execution, thoui^h its ellect could not be felt till the death of the testator, and tliat therefore the condi- tion of the Kith clause of the act 3 Vic. ch. 74, reijniring " a tieed or con- veyance to be mad'! and extnuited six i months at least luMoro the death of the person conveyin'^ the same," might be complied with in the case of a will. lb. I To whom flcvisp may fie mntle U7i- ■ der 3 Vu: ch. 74, sec. It).]— 13. A. devise under the statute 3 Vic. ch. 74, | made to the bishop and the rector is i good,notwitiistandinL' tlii; statute speaks ! of a conveyance to the bish • or rector ice. lb. WIT.NKSS. I 451 W^ITNESS. See Arbitration AND Award, VIII. I 7. — Attornkv, IV. 2.— CoMMis-l SION TO KXAMINK WiTNKSSKS. COUNSKL, 2. — EviDKNCK, 1 1, f) ; V. \ 2, 3, 5, 6,7; VII. 2.— Forcible ^ Entry etc., 2. — Jld(;ment, 2, 3. 1 Judgment as in case ok Nonsuit,! II. 6,7.— New Trial, III; VI II.; I; IX. 1. — Process, 7. — Subpie- i NA, 1, 2, 3, 5. Refusing to sircar to execution of cognovit — Attachment.] — 1. An at- I tachment will not be granted against a I witness to a cognovit who refuses to j fvvear to its tjxectilion inilil a rule has i been served on him onliTiriii; bint (o do so, and be has disolicvcd it. Jldiii, X.JImii, iii. 0. S. "7(i. " Rrliir/iinu; ntfirrr /le/hre Honsr of Aasetnhly — J-^.ijie//ses.j -','. ,Srw///r ; That a returning ollicer whose conduct has been impeached is not entitled i. his expenses as a witness belore a^ committee t)f the House of Assembly,! although ho was summoned to attend by the speaker's warrant in the same manner as ilie other witnesses. Jihiclc- lock V. IW Martin, Tay. U. C. R.437. Coinpvtency, co-aUiaors in a lunid.] — 3. An obligor in a joint and several bond may be a witness for hisco-obli- gor. Jiank of IJjipcr Canada v. IVid- mcr, ii. 0. S. 222. Assignment by a debtor firhiscrc- ditors — liond to trustees — Dehlnr a irifness.] — !•. A person who assiiins his projierty to tr" ■tees for the benefit of his creditors, is consilient! as a com- petent witness to a bond ^ivon to those tru.stees by one of his creditors. .MoJ- fatt ct III. V. Lmitks, Tay. U. C. R. '416. Cnmiiete ncy , partner.] — 5. In an action against a linn as the indorsers of a bill of exchan^'C, a ijartmn" not joined as defendant is not a ion petent witness, thougii released, I'or l.is co- j)artners to prove j)aynient. Ferric v. Starkweather. r>fi.'Rep. 426. u. in an action for goods sold and delivered, a partner di' the plaintlll" not joined is a co^'ipetenl witness for the defendant to :«..>(> ))aynu'nt. W'i/soii V. Sterens, ^hc\\. Term, 7 VVm. IV. 7. A joint contractor with the de- fendant, not j lined in the action, may be a witness t()r the plaintilf, and a re- lease (though unnecessary,) given by the pluintiir to him immediately before the trial to enable him to uive testi- mony, will not ojterale as a dischargfj of the defendant, unless pleaded puis darrein contii\u;.;:n . JJrn/ie \ . Parke f^ «/., Easter Term. 7 VVm. IV. Debtor, as a /r////,ess. prrn'i)><2 his own deed, mid for iisnn/.] — S. In an ejectment iirouuhl hv a sheiill's vendee ol' lands soli! (i|i an rvecniien. ainiiust a purchaser lioni ilie dcliini- l.cl'ore eM'i-ulinii, in .\liieli il w.'is coiiM'uded tlial till ili'cd to (hi- (li'liiii|;iMl was iis'irioiis: 111 Id. that (lie dclilur wns a e()iii|ielcnl wilness to piu\e the u>i'fy. Dor iliiji,. Sjtriifjshd w IJoj/kins, Trio. Term, 7 Wm, IV. 452 WITNESS. WITNESS. 9. Inejecfmont by a mor1<;n-l- ''''^ rejection was improper, and that Liiry et al. v. Loneyet «/f.,Micb. Term, ''i-' " ^J"^ ■'» ll*""' witness u itliout a release. 5 Vic. Bank of Brifis// iSorlk America v. 14.. In a joint action against x\w'^H(ilman et al.,\.\}. C. \i.\M). . maker ami indorsers of a promissory Af/orne// in adijjere/d, eause.] — 19. note, the maker is a good witness An alloniey is an admissible witness against the indoisers AIcLarr /i v. to jirove by whom lie was employed Mnir/irad et id., iii. U. C. R. aO. j to sue out a bailable writ. Bramer v. Action airninst .v//r/7//\ .sv/yv/y—, i''''//X:,', iv. U. C. R. 249. Com]iete//ey (f t/epvty slierif/'.J — 1 "i. > ( 'o»ij)e(ene)/, elirk of turnpike rom- The deputy sherill is nut a competent ))ii!'\i(/ners.] '20. The clerk of the witness for a sherill's sureties in an comniissioiii'is of a turnpike trust, who acti<»r< against them tor his misconduct is empoweretl lo sue for tolls under 3 in the LKecution of writs of fieri facias j Vic.ch. 3(). is not a competent witness lESS. WITNESS. WUHK AND LAnOH. 453 iilcss released, nor y be restored by 311 the record under i, .-sees. 18 & 19. Hil. Term, 5 Vic. it maker of u fcl against oiio oi iwo roini.>sory note, the a coin|ioteiit wit- ilcer to prove ille- >n,oiil)eiiij; released / ct al. V. Smith, c. la joint promissory tent witness for the alone is sued,\vith- is not inditl'erently and his co-maker, m by the latter lor daniaiies and costs, lii. O.S. 71. irHcijitiJiis dirHt''s lero ill an action 'rs of a promissory us tliat the note had me of the indorsers ered totheplaintiffg, e been stolen, and ike it in good faith, attorney, by whom ;\keii (III tlu'ir behalf, itness at the trial to ances under which ii'inn objected to as the |)laintii1'-< if the 'II llirunnh his iiegli- ■d, it was belli that improper, and that •ssuitlioiit a release. Sditk America v. U. C. R. 3(iy. Ifirnit coHSi'.^ — 19. admissible witness 1 he was i'm|)loyed le writ, JJatmcr v. . R. 249. rk of t/tnipiJ:c inm- 'I'ho clerk of the '. turnpike trust, who !ue for tolls tmder 3 1 competent witness Hi an action against the defendants for | the tolls in which he is the nominal i plaintilV. Cummings v. Giassnp it ' .,/„i. U. C. R. -iU. Tirspciss at'fdnst a sheriff' for wronaful seizure — Cnnqwtenaj of debtor J — 21. In an action of trespass broc^'ht a;iainst a sherilf for seizing the plaiiitilV's goods under an execution ■■.'iiinst the gooils of A. : Held, that A. ^liie defendant in the execution) was not a competent witness for the sherill' to prove that he (A.) and not the plain- till' was the owner of the goods. Rd/inso/i V. Rapeljv, Iv. U. C. R. 2Si). Ejectment — WIkh icitiieas mayk- rejected us inc(mrpetent.'\ — 22. Hetbre a witness in ejectment should be re- jected as incompetent, the precise con- nection of the witness with the pre- mises claimed in the action should be siiewn. Doc dcm. Vernon v. Wetker- all, V. U. C. R. 342. Liformation for a pcmdty under Customs Act — Competency, surveyor of customsJ\ — 23. Lniler the imperial act 8 & !» Vic. ch. 93, sec. 89, the surveyor of customs, not being the party either " seizing or informing," is not entitled to a share of the penalty: he cannot therefore be rejected as an incompetent witness upon a case of inlbrmation for a penalty for harboring sinu»L'led goods. Attorney General V. Warner, v. U. C. R. 4.85. Compeienry of widinv to 2)rove her deceased hushanirs title.] — 24. A widow woman, notuilhslanding her right to dower, is a competent witness to pi'o\e ihe pedigree of her husband and his title to land. IJor dein. Park ct (d.v, Henderson, vii. U. C. R. 182. Wiif) VKUf ln\i(nder 12 Vie. eh. 70.] — 2;"). Since the passinii of tbr act 12 Vic. ch. 70, A. who liad been sued in ejectment and allowed judu'ment to go against him by i J'ri- us.] — 2. A plaintiff enters a record at the assizes to assess damages; the cause does not come on iri its order, and is made aremanet; the phiintiH' subsequently sues out a \v rit ol inquiry to a district court ; the deCendant moves to set this writ iiside and ;ili BubHeciuenliirocecdiniisJorirreuuliiniy. the cause liavinu licen made a ri'iniiiuK at Nisi Prills; Ilttd, writ ol imjiiiry regular. ///. Aj>peiir(iH(;f ol trio/ iriiirrr of pre. ceding irrcgularilii.] — ,'j. WhiMf liie defeiidant is re]uescnted at the trial and has made his delence, the Court will not set aside the jiroceedings on tlie ground that no notice ol' the exe- cution (if the u rit ot' inquiry had hcen uivt'ii to the dcfendaiil. Farrishv. Sliic/ds, vii. U. C. R. r)-25. [Also see Waivkr, 2 ] Sttfii/g aside writ — Notice of mo- tion.'\ — -i. Tiie notice of motion tosfit asiile a writ under the oaili clause of S \'ic. ch. 1.'}, must s]u'cify the day on which the party will apply. Bank of JShml real V . Jknisoii ,\\\. Ii'. C. R. 13(i. Motion to set o.sif/e procrrdingsnn. dcr irrit vlicn irregularity in t/ic j writ its(/f.\ — ;"). A motion to set aside prorccdings tnidcr a irrit of trial yn j a district com't, when the irretrularity is ' in the writ itself and not in the subsc- I (|ueiit pioceediiigs, is bad. lb. I Writ of trial, when attorney is de- fendant. I — (». Under the ;") 1st and fol- I lowing clauses of the Sth Vic. cli. 13, a writ of trial may go from tho Queen's iJench to the judge of a district court in a cause, in \\h\c\i:\i\atlorH('i/ii the defendant. The ItanL of Mon- trad V. Bar rill, lii. U. C. R. 375. I [Afici w.'iids iiplickl ill Mniiiiv. Gwynne, I V. U. C. K. :Ji:..j I Declaration c/aiviing lf)l. — Bill of particalars, I!)/.] — 7. Where the j declaiation claimed 75/. for work ami I labor, hut the bill of particulars only N!)/., the caiisr is broiiiiht within tlio limits ul" the act and may he relerred. Martin v. Gwynne, v. U, C. R. iiW. Writ of trial onli/ to try issue— Assess?aent if damages.'^ — S. Where the writ of trial is only to try the issue, and contains no special venire toassess !daniau;cs, the jury have no authority I to assess ilamairos on breaches sut;- i Lieslid. llaiitir v. Vernon. \\\. U. C. i R. ysz. j (Sec \\\p slioriff liuiu'ii'isif" "I llii" cliief jus- licr ;i'j;'iili*l 'lit' piai'I ire, Id vvhicli !io nidv I a.-si'iiLsoiiaii'DUiil ol ihf iiiciiii\t';iii,'iici' whicn ■ :iiij;ht inise lidiii ))iiisiiiii^ ii tuurse ol' prac- lice ditli'iviit tn iliui rgliiiwsd in England under 11 iiko atatult.] L AND INQUIRY. ileliMice, the Court llie proceedings on imliee of tlio cxe- ot" iiuiuirv liiul l)ccn lulaiit. Fanishv, R. rv25. ,2] rri/ — Nolicr of mo- )tice ot" iiiolioii toset llio T).")!!! clause of st ^;J)t'^•ily llie day on :ill apjjly. Bank of ;(>/A,iii. I'. C R. 13tj. ide pro(^mfin^s nn. nriiiiliiritji in the A motion to sol aside V (/ irrit of trial in UMi tlio irrciiularityis ind iiol in the subsc- is bad. IL. irJirn (ittomnj isdc- iiler the r)lst and I'ol- tlie StI. Vic. cli. 13, io from tlio Queen's )uJi;e ol" a district \\U\c\i:u\((t/o/Hr!/i)i The Biiiih of Mon- iii. U. C. R. 375. Ill ill Miuiiii V. Gwynne, laimiasr l^L—Bill .)/.]_7. Where tlie L'll IN. for work and I of particulars only i hroutihl within the mid may be referred. me, V. U. C. R. 2-15. only to try issue— i))ind 16 Administration (Letters of) 17 Administrator 17 Administrator de bonis non 17 Admission of Documents 17 Admissions 17 I. In Pleadiiiirs. II. As Kviili'iice. Adverse Possessioti 17 Advocate 17 Affidavit 17 Atlidavit to hold to Hail IS Affirmation IS Agent 19 Agreement 19 Albion Road 19 Alderman 19 Alias Fieri Fat las 19 Alien 2t) Alien ne (Plea of) 20 Allegiance 20 Allocatur 20 Allowance for Road 20 Alteration. 20 Amendment : I. Of Writ and Return 21 II. Of Pleadings and Record 21 III. Of Verdict, Postea and Judg- ment 26 IV. Of other Proceedings 27 Apothecary 27 Appeal . . .' 27 Appearance 28 A])|)ortiotimeiit of Rent 29 Appraisement 29 Apprentice 29 A|)|)ropriation of Payments 29 Arbitration and Award: I. Reference and Bond of 8ub- 30 31 32 33 mission II. Enlargement of time for ma- king Award III. Arbitrators: ( 1 ), Po« er of. (2), Excess of Authority, Mis- take, or Misconduct of. . . IV. Award: ( 1 ), Finality and Certainty of. 34 (2), Ki'pii^iiiiiicy or .Mistake in. 36 (3). OiiierMalters relatini; to. 36 V. Si'tting aside Award, Ver- dict, or Judgment thereon. . 38 VI. Enforcing Award: (1), Uy Atiachment 39 (2), Hy Action, Pleadings and Evidence therein 40 VII. Costs 43 VIII. Miscellaneous Matters 44 Aruiimentaliveness in Pleading. . . 4.5 Army 45 Arrest: I. Afiidavit toholdtobail 45 II. Privilege and Discharge from. 49 III. Second Arrest, and Arrest on alias writs 60 IV. Other matters 52 Arrest of Judgment .^3 Arson 55 I Articled Clerk 55 I Assault and Battery 55 I A;itiembly (House of) 56 456 INDEX TO THE TlTi.ES Assembly (Moinher of) Assossnieiit of Dnniagos Assessment (Notice of) Assessment rolls Assessments Assets Assignment (Deed of) Assignment of goods Assize (Clerk of) Assumpsit: I. Action generally, and when maintainable II. Pleadings, Evidence and Dam- ages Assurance Attachment: I. When granted II. Practice on III. Other matters Attainder Attestation Attorney : I. Articled Clerks II. Duties and I.iiibilities: (1), Duly am! Li.ibiliiy lor No-;- liy;on('<' nr Miscoinliict .... (2), Othor Liabilities, and Plead- iti'is (3), Siimrniiry iirocencluijrs against III. Fees IV. Rights and uiiscollaneois mat- ters Attorney General Attornment Auction anil Auctioneer Autre Action Averaiie Avowry Award Away-goisnji^-Crop PAGE 56 5() .571 .57' .57 j 57' .57: 57' .57 67 60 61 (il 62 63 63 63 63 64 6I) ti(i 67 69 70 70 70 T2 7-2 T2 BAIL: III Civil Ctife!^. I. Justitic.ition, Discharge and Relief of 72 II. Proceedings against 73 III. Bail Piece, and other matters relating to Bail 76 In Crimin:il Ciisfs: See Criminal Law 146 Bail Piece 77 Bailifl". 77 Bailment 77 Bank of Briiisb North America.. 7S Bank of Upper Canada 7S Hot Bankrupt and Bankruptcy 78 Banks and Banking $1 Bargain and Sale 81 Baron and Feme 81 Barrister SI Battery 81 Begin (Riuht to) 81 Billiard Tables 81 Bills of Exchange and Promissory Notes : I. Form and Construction gen- erally 82 11. Presentment and Acceptance. 83 HI. Protest and Notice of Dis- honor 85 IV. Transfer by Indorsement. . . 88 V. Action, Pleading and Evi- dence 91 VI. Consideration as a ground of Defence 96 VII. Other grounds of Defence. . 98 VIII. Miscellaneous matters 100 Bills of Ladimr 101 Bills of Particulars lOl Bills of Sale 101 Binbrook (Township of) 101 Hoard and Lodging 10'2 Board of Ordnance 1C'2 Board of Police of Loncion 102 Board of Works ]()2 Bodies Corpos.. 10!1 Titlos I'ti* 109 MPANY 109 109 Cancellation I. Of Notes II. Of Wills. Capias ad Kospondcnduni Capias ad Satiisfaciendum Cargo lreat l!t-i Eviction 192\ Evidenee : 1. I'lrol KvidencP 102 11. S 'condary Kvidcnce 193 III. Hcarsiiy Kvidencc 195 IV. Records and Public Docu- ments 196 V. Writings generally 196 VI. Prusmiiption of Deatli .... 197 VII. .Admissions and Declara- tions 198 VIII. Practice and miscellaneous Matters 198 XI. Evidence in particular Ca.se8 200 Exchange 201 Excise 201 Execution 201 Executor and Administrator: 1. Uights and Liabilities 205 II. Proceedings by 205 111. Proceedings against 206 Executor de son tort 208 E.\enii)lifications 208 Exhibils 208 Exigent 20S Exoneretur 2()8 Ex-SherilV 208 E.Ktra-work 208 FALSE IMPRISONMENT .. 20f» Ynl^o Representation 210 False Return 210 Fee Simple (Estate in) 212 Fees 212 Felonv 212 FenieCoverl 212 Fences 212 Fence Viewers 2 1 .'5 Fcrrv 2i:i Field Not.>s 21:J Fieri Facias 2i;{ Filing Papers 214 Final Judirment 21") Final Process 21.") Fire Slf) _,. , ^„ . »*« r ire Arms (Seizure of ) 215 Fi.-^iiery 215 Fixtures 215 Flour 215 Forcible Entry and Detainer . . . 215 Foreigner 216 Foreign Rills 216 Foreign Corporations 216 Foreign Courts 216 Foreitrii Judgment 216 ForeiL'h Language 217 ForeiLMi Law 217 Forfeiture 218 Forwarder 218 Franchise 218 Fraud 218 Fraud (Plea of) 218 Frauds (Statute of) : I. Section 4 (Sales of Lands). . 219 II. Section 10 (Trust Estates).. 219 in. Section 17 (Sales of Chattels) 219 Fraudulent Assignment 220 Fraudulent Deeds and Assign- ments 220 Fredeiicksburgli 222 Freedom from Incumbrances (Covenant for) 222 Freiirht 222 Further Assurance (Covenant for) 222 GAMING 222 Gaol 223 Gaoler 223 Gaol Limits 224 Gas Companies 224 General Average ... 225 General Issue 225 Good Friday 226 Goods sold 226 Grant 226 (Grantee oi' the Crown 227 Grow \uroof of slanderous matter ns allfijed in Declaration ..'.. 270 (2) Kviileiice generally 271 Liberuni Teneinentum 271 License of Occujiation 271 Lien 271 Life Estate 272 Limitations (Statute of): I. Operation generally 272 n. Etfect on Claim to Realty, and how the Statute may bo avoided 272 ni. Effect on Right to Personal Actions, and how the Statute may be avoideil 277 IV. Pleadings and Evidence 279 Limits : I. Limits generally 280 IL Bond and Proceedings thereon 281 Liquidated Damages 2S2 Locatec of the Crown 2S2 Lodging 282 London (Board of Police) 282 London (Town of) 282 Lord's Day 283 Lost Bills of Exchange 283 Lottery 283 Lower Canada 283 Lunatic 283 MACADAMIZED Road Com- missioners 283 Magistrates 283 Maintenance (Statute of) 284 Malfeazance 287 Malice (Averment of ) . ,. 287 Malicious Arrest 287 Malicious Prosecution 290 Mandnmns 290 Marino i'olicy of Insurance.... 293 Marine Railway Company 293 Market Overt 294 Marriage 294 Marriage (Breach of Promise).. 294 IMarried Women 294 Master and Servant 294 Materiality in Pleading 295 Member of Parliament 295 Memorials 295 iMerger 295 Mesne Process 295 Mesne Profits 295 Methodist Trustees 296 Midland District Turnpike Trust 296 Mileage 296 Miller 297 Mills 297 Misdirection (of Judge) 297 Misjoinder 297 Misnomer S97 Misrepresentation 297 Misspelling 298 Molliter Manus imposuit 298 Money had and received 298 Money lent 299 Money paid ... 299 Monuments 300 Mortgage 300 Mortmain 302 JMunicipal Council 302 Municipal Councillor 302 Murder 302 NATURALIZATION 302 Navigable Waters 303 Navigation 30? Negligence 301 Ne unques accouples 303 Ne unques Administrator 303 Ne unques seizie 303 New Assignment 303 New Trial : I. Verdict contrary to Law, Evidence, or Judge's Charge 304 II. Verdict on doubtful, con- flicting, improper, or insuf- ficient Evidence, or Disco- very of New Evidence .... 307 III. Absence, Mistake, Miscon- duct, or Incompetency of Witnesses 310 IMAGE EVALUATION TEST TARGET (MT-3) V. y^A*. A 1.0 I I.I 11.25 l^|2£ 12.5 ^ Uii 12.2 !g lia 12.0 WMM IE l_U 11.6 6" I ^ '^^ J '/ Photographic Sdences Corporalion 23 WIST MAIN STMIT WItSTIR.N.Y. 14SM (716)«72-4S03 ^ rssHss 462 INDEX TO THK, TITLES. New Trial, contimird. IV. Excessive or trifling Dam- ages 311 V. Allowance ot'second or third New Trial 312 VI. Misdirection of .Tudge .... 313 VII. Jury iiniiro[)erly panelled or influenced — iMiseoiulnet of Jury 313 VIII. Surprise — Cause taken out of order, or in the absence of Counsel 314 IX. When granted conditionally — Efl'eclofnon-perlormance oC Condition when eondi- timal 316 X. Other cases, and General Practice in granting New Trials 319 XI. Of the motion for a New Trial 320 New York 321 New York currency 3'il Niagara Hnrhor and Dock Com- pany 321 Nil debet 321 Nil hnbuit in tchonientis (Plea of) 321 Nisi Prius (Proceedings at) 321 Nisi Prius Kecord 321 Nolle Prosequi 321 Nominee of the Crown 322 Non Assumpsit (Plea of ) 322 Non Damnilicntus (Plea of) . . . 322 Non est Factum (Plea of) 322 Non Feazaiice 322 Non Joinder 322 Non Pros 322 Nonsuit 322 Nonsuit (Juilgmcnt in case of) . 324' Non teniiit 324- Notary 324 Notice of Action 324 Notice of Assessment 32(j Notice of Disliotu)r 327 Notice of jNIotion 327 Notice of Trial 327 Notices (various) 328 Notice to admit Documents 32S Notice to Appear 32S Notice to Produce 328 Notice to Quit 32!) Nuisance 329 Nullity 330 PAOB Nultiel Record 330 Nunc pro tunc l^roceediniis 330 Nuniiuam indoijitatus 330 OFFICES (Sale of) 330 Ontario (Lake of) 330 Onus probandi 330 Ordnance l)e|)artnu'nl 331 Overlioldini; Tenant 332 Oyer ^ 332 PARENT AND CIIILI) .332 Parliament 333 Parol Evidence 333 Particulars of Demand 333 Partition 331- Partner-s and Partnersliij) 334 Patent .33H Patent (Granting Land) 337 Payment 337 Paynn;iit into Court 338 Pedigree (Evidence of ) 339 Penal Action 339 Penal Statute 339 Penalty 339 Peremptory Undertakiuu; 340 Perjury 340 Petty trespass Acts 340 Piiysician .340 Placita 340 Pleading: I. Argumentativeness 340 II. Certainty and J'artieularity 343 III. Counnencemcnt and Con- clusion 351 IV. Confessiouand Avoidance. 352 V. Departure 352 VI. Duplicity 363 VII. Inconsistency 354 VIII. Materiality .' 355 IX. Admissions 356 X. Joinder of Counts .356 XI. Pleading generally 357 XII. Pleading in particular Cases 3.57 Pleading issuably 3r)8 Plene Administravit 358 Policy of Insurance 3r)S Port JJurwell Harbor Company . 3r)S Port Credit Harbor Comjjany .. 3r)8 Port Hope Harbor Company . . . 308 Possession 3r)8 Pos te a 3 .') 8 PostOflice 358 I INDEX TO THE TITLES. 463 PAflE 330 i'!s 330 330 330 330 330 331 332 332 332 333 333 333 331. '.iU 33(i 337 337 338 339 339 339 339 3+0 340 310 , 310 3-10 340 343 351 352 352 353 354 355 356 356 357 357 358 3r)S 3r)8 3:)S .. 3r)S .. 308 .. 3r)8 .. 3r)8 .. 358 PAOE pound and Poundkceper 359 Poundage and Slierill's Fees . . . 359 Power ol" Attorney 359 Powers 359 Practice : I. Pleiidings 360 II. Rules, Orders, Aflidavita and Motions 363 III. Miscellaneous Pointa 368 Practice Court 369 Prerogative 369 Presbyterian Church, Gait 369 Prescription 370 Presentment of Bills and Notes . 370 Presiuni)tion of Dcatli 370 i Pretended Title 370 Principal and Affent 370 Principal and Surety 371 Priority of Executions 372 Priority of Registries 372 Prisoner 372 Privilege 372 Privileged Cominuiiication 372 Probate and Probate Court .... 372 Procedendo 372 Proceedings (Stay of) 372 Process 372 Prochein Amy 373 Proclamations 373 Produce (Notice to) 373 Profert 373 Prohibition 373 Promissoiy Notes 373 Protest 374 Provincial Agricultural Society,, 374 Proxy 374 Public Companies 374 Public Documents 374 Public Nuisance 374 Public Road 374 Public Schools 374 Public Works 374 Puis darrein continuance 374 QUAKER 374 Quare clausum fregit 374 Quarter Sessions 374 Queen's Bench (King's Bench) . 375 Queen's Bench Costs 375 Queen's Counsel 375 Quiet Enjoyment (Covenant for) 375 Qui tarn Action 375 Quo Warranto 375 RACE COURSE 375 Railway Companies 375 Riipe 376 Rate Collector 376 Readiness and Willingness 376 Reasonable and probable Cause. 376 Receipt 376 Receiver General 376 Recital 376 Recognizance 376 Record 377 Record (Nisi Prius) 377 Rector 373 Redemption (Right of) 379 Reference 379 I. To Arbitration. II. To Compute. Registry and Registrar Release I. Of Estates in Land. II. Of Causes of Action. Religious Societies Remainder (Estate in) Remanet Remittitur Danma Render (by Bail) Kent Rent Charge Repleader Replevin and Replevin Bond . , . Request Requests (Court of) 379 379 R istry Residence Restitution Return of Writs Revenue Revenue Laws Reversion and Reversioners. . . . Review (Court of) Revocation I. Of Agent's authority. II. Of Wills. Rideau Canal Rions in Arrears Right of Redemption Right ofWay Rule for Judgment Rule or Summons to Compute,. Rule to Discontinue 379 380 380 380 380 380 380 380 381 382 382 382 382 382 382 382 383 383 383 383 383 384 384 384 384 384 384 j , 'Wil.D.,l lJ" "— 464 INDEX TO THE TITLES. =1,11 PACK Rule to Plead 384 Rules, Orders and Summonses. . 3841 SALE 384 Sale of Ollices 384 Saltfleet 384 Satisfaction 3S4 School Assessment 384 School Trustees 384 Scire Facias' 385 Scotland 385 Sea 385 Seal 385 Security for Costs 386 Seduction 386 Seizin in Fee 387 Sentence 387 Service of Papers 387 Set-off 388 Several Counts 390 Several Pleas 390 Sheriff: I. Dutlcs,Rights, and Liabilities 330 IL Attachment 392 IIL Actions against Sheriff .... 395 IV. Actions by Sheriff 398 V. Actions against, and Liabi- lity of, Sureties 400 VL Poundage and Sheriff 's Fees 402 Sheriff's Deed 402 Sheriff's Sale 403 Sheriff's Vendee 405 Shipping 405 Ship Registry Act 405 Shore 405 Side Lines 406 Similiter 406 Slander 406 Smuggling 406 Sodomy 406 Solicitor of Sheriff's Court, Scot- land 406 SolvitadDiem 406 Solvit post Diem 406 Son Assault demesne 406 Special Jury 406 Spirituous Liquors 406 Stakeholder 407 Statute Labor 407 Statute of Frauds 407 Statute of Limitations 407 Statutes (Construction of) 407 Stay of Proceedings 413 PAGE Steamboat 413 St. Laurence Canal 413 Stock 414 Stock Books 414 Stock Notes 414 Stone 414 Stoppage in transitu 414 Stranding 414 Street Surveyor 414 Streets '411- Submission •115 Subpoena 415 Summons (Writ of ) 415 Summons, or Rule to Compute . 415 Sunday 415 Supersedeas 416 Surety 416 Surrender 416 Surrogate Court 417 Survey 417 TAXATION of costs 418 Taxes 418 Tenancy at sufferance 420 Tenancy at will 420 Tenancy from year to year .... 420 Tenancy in common 420 Tenancy in tail 420 Tender 420 Term's Notice 421 Testatum Act 422 Teste of Writs 422 Timber 422 Time (Computation) 422 Time (Plea of) 422 Title 422 Title (Covenant for) 425 Tolls 425 Toronto and Lake Huron Rail- road Company 425 Toronto (City of) 425 Toronto Gas Company 426 Town Clerk 426 Town of London 426 Transfer of Debts 426 Treason 426 Treasurer (County) 426 Trespass : L When and by whom main- tainable 426 n. Pleadings, Evidence, and Dam- ages 429 INDEX TO THE TITLES. 465 FASE 4-13 413 414 414 414 414 414 414 414 '411. 415 415 , 415 Compute . 415 415 416 416 416 417 417 s 418 418 s 420 420 year .... 420 420 420 421 422 422 422 422 422 422 425 425 425 425 426 426 426 426 426 426 426 439 PAGE. Trial at Bar 434 Trial at Nisi Priiis 434 Trial (Writ of) 434 Trover : I. When and by whom main- tainable 434 II. Pleadings, Evidence, and Dam- ages 436 Trust and Trustee 437 Tuition ,... 437 TurnpikeTrust 438 UMPIRE 438 United States 438 Upper Canada College 438 Use and Occupation 438 Uses and Trusts 438 Usury 439 VARIANCE 440 Venditioni Exponas 442 Vendor and Purchaser 443 Venire (Award of) 443 Venire de Novo 443 Venire Facias 443 Venue 443 PIOI. Verdict 444 Voluntary Deeds 446 WAGER 'i.46 Waiver 446 Warden 447 Warehouseman 447 Warrant 447 Warrant of Attorney « 447 Warranty 447 Waste 448 Water 448 Water's Edge 449 Way 449 Weekly Allowance 449 Welland Canal.'. 449 Wharfinger 449 Wharves 449 Will 449 Witness 451 Words (Construction of) 453 Work and Labor 453 Writ of Error 4.54 Writs 454 Writs of Trial and Inquiry 454 3 ;vf r.-^siiP** i^l.i: I' 1 INDEX TO THE CASES OP THE DIGEST AND APPENDIX. The letters {^p-) placed before a title refer to the Appendix. ABRAMS V. Moore Trespass, II. 27 Acheson v, McKenzic Bills of Exchange etc., V. .Practice, 1.30. tj • • < /•••••••< 16. Aclaml V. Adams Malicious Arrest, 21 Adams v. Acland Arrest, II. 5, 6 V. Baincs Landlord and Tenant, II. 6,7. .. . V. Ham Arbitration and Award, IV(3), 8. V. " " VI(2), 18. V. Trespass, 1.21 V.Thomas Bills op Exchange etc., I. 9 Adams etal. v. Kingsmill Sheriff, III. 11 Adamson v. McNab Easement, 4, 6 Adnerat v. Shriver Landlord and Tenant, II. 2 Aikin v. Howcutt Money paid, 5 Ainslie v. Cliapman Penalty, 1,2.., V. Rapelje Sheriff, III. 15, Aitkin v. Malcolm Assumpsit, L 10 Alderman v. West of Scotland In- surance Company Insurance, 1 Alderson v. Stewart Evidence, VIII. 9 Alexander v. A. B. & C. D . . . . Attorney, 11(1), 12 V. Hervey Judgment, 9 V. Small et al Attorney, 11(1), 10 Allan V. Brown Arbitration and Award, VIII. 1 . . V. Garven Partners etc., 10 AUanson v. Johnson Interlocutory Judgment, 7 Allen V. Coy Bond, I. 2 y, Contribution, 2 Allison'v. Wagstaff Amendment, I. 3 Alway V. Anderson Distress, II. 8 Ambridge v. Foster Pleading, II. 25 Amiot et ux. v. Woodcock Dower, II. 1 Anderson v. Hamilton Trover, I. 3. V. Jennings Pleading, II. 17 V. Stewart (^p.) I^ibel . Todd et al New Trial, I. 1 1 V. Vansittart et al. . . .Common Schools, 4 Anderson et al. v. Gamble . (^^J.) Bankrupt Vu *o* * " v.Macaulay.... Bills of Exchange etc., IV. Andrews v. Robertson et al Sheriff, II. 12. Andrus v. Burvvell Case (Action on the), - PAoa 433 92 363 290 49 264 38 43 429 82 397 172 263 300 339 398 59 241 200 66 252 66 44 335 245 102 126 21 163 347 169 435 346 17 305 121 3 89 394 114 ,*«ffl5UIW^ 4G8 INDEX TO THE CASES. Andrus v. Pago Amendment, I. 7. V. McDonell Escape, 25 V. Ritchie Arrest, I. S Anguish V. House . . .' Illegality, 1. . . . Annable v. McDonell et al(4iJ.) New Trial, 4 . . . . Annis et al. v. Corbett Covenant, 11(2), 'i- ' V. Lewis Partners etc., 7. Anonymous Absconding Debtor, 1 .Sheriff, II. 1 Applegartli v. Rhymal Water, 3 Armour v. Boswell ct al Costs, VII. 7 V. New Trial, IV, 5 . V. « VII,3. V. Phillips Bankrupt etc., 1 1 V. KVIDENCE, VIII. 7 . Armour et al. v. Jackson Venditioni Exponas, 1 Armstrong v. Anderson ct al . . . . Assumpsit, I. 11 • V. Benjamin Judgment as in case of Nonsuit, II. 5 V. Scobell Capias ad Respondendum, 1, 5. . . . ■ ■ V. Indorsement, 1. 1 V. Process, 1 • V. Somervillc Usury, 9 Armstrong ct al. v. Moodic Fraudulent Deeds etc., 3 Arnold V. Fish Irregularity, 1 V. — Process, 2 Ashlbrd v. Gohccn ct al Pleading, VII. 4 V. Hack Lease, II. 2 Ashley v. Dundus Arrest, IV. 11 Ashton et ux. v. Kce^isur Variance, 4> Askin V. London District Council.CLERK of the Peace, 1, 2 V. DlSTRICT(N0WC0UNTy)C0UNCIL,4,5 Atkinson v. Clark ct al Bond, II. 2 V. Record (Nisi Prius), 3 Attorney General v. Brunskill(-/l|j.) Arrest of Judgment V. (4^.)CUST0MS, 2, 3 . V. (4/^.)Pleading, 24, 25 — V. Dockstader. Information, 5 — V. Spafford . . . Customs Acts, 5 — V. Warner. ... " 6 — V. ....Witness, 23 Aubrey qui tarn v. Smith Maintenance (Statute op), 10, 11. V. McDougall .Bills of Exchange etc., IV. 2. V. . .Power of Attorney. Avcrill V. Powell Amendment, III. 2 . Averill et al. v. Baker Insolvent etc., 21. '' V. Cameron Practice, I. 4 21 188 46 23.*^ 21 144 335 10 393 448 138 311 314 80 199 442 59 257 109 236 372 440 220 247 372 355 206 53 441 117 163 104 378 2 9 27 238 150 150 453 285 88 359 27 241 360 BABY V. Baby. •V. • ■ V. .(-4jj.)Debt on Bond 9 District (now County)Council, 17. 165 Estate, 4 189 • (Ap.) Surety 34 INDEX TO THE CASES 469 FAQtl 21 188 46 23? 21 144< 335 10 393 4-18 138 311 314 80 199 442 59 257 109 236 372 440 220 247 372 355 266 53 441 117 163 104. 378 2 9 27 238 150 150 453 F), 10, 11. 285 LV« /6im m • • KJKJ 359 27 241 360 9 UNciL,17. 165 189 34 Baby V. Davenport. Arbitration and Award, I. 6.. .. V. « « iV(3),3.. V. «« «VI(2),14,2U V. Drcwot al Bond, II. 22 .. V. Foott. Sheriff, I. 12. V. Milne Mortgage, 3 . Baby et al. Ardiii Pleading, II. 24 Bacchus V. Mc(/ann Arrest of Judgment, 5, Bacon v. MclJet n et al Amendment, II. 29 V. Foreign Judgment, 14.. I • • • • • < Badglcy v. Bender." Evidence, II. 12. Bagot V. McKen/io Pieading, II. 6, Baincs v. McMartin Arbitration and A\vard,VI(1),2.. Baker v. Booth " « VI(2), 2, 3. v. Judgment, 1 v. (rarrett Term's Notice, 4 Baker et ul. v. Flint Stone Baldwin v. Johnson Money had and received, 12 Baldwin et al. v. M'Lean Limitations (Statute of),^IV. 1... — V. New Trial, I. 7 V. INIontgoniery. . ..Counsel, 1 V. Roddy C ertior ari, 3 V. Sliccr Arrest, II. 1 0'> /WM^ . . . Baldwin qui tain v. Henderson. .Amendment, III. 5 — ^ V. ..Maintenance (Statute of), 17, IS. V. ., Balcy V. Brown et al Practice, II. 27 Balkwoll. In re London (Town of), 3 Ball V. MeKenzie Costs, IV(1), 7 Ballard v. Pope Indemnity Bond, 11 V. Ransom et al New Trial, X. 8 V. Wright Interlocutory Judgment, 5. V. Irregularity, 2 Bank (Bull'alo) v. Truscott et al. .Bills of Exchange etc., II. 3. V. '..Witness, lO Bank (Commercial) Sec Commercial Bank , infra. Banker v. Griffin Absconding Debtor, C. . . . Bank of B. N. A. v. Ainlev ....Costs, III. 5 v. '-.... " VI. 4 v. . . . .Pleading, II. 9 ■ v. Brown . . . .Bank of British North America, 1. ■ v. Clarke . . . .Arrest, II. 11 • V. Denisonetal.CosTS, I(J), 16 •v. Holmanetal.WiTNEs ,18 ■ V. Jarvis Absconding Debtor, 2~y ■ V. Jones etal.. Bills of Exchange etc., V. 13, 14. • V. (Ap.) " 2,3 • V. (iljJ.)EsTOPPEL, 1 • V. Ross Bills of Exchange etc., Hi. 6, 7. . • V. ShervTood . . Amendment, II. 25 ■ V. ..Bills of Exchange etc., VI. 11... • V. . .Corporation, 9 30 37 43 107 391 301 347 54 24 217 195 314 49 41 0F,0 421 414 299 279 305 141 115 49 26 286 2S7 366 283 136 235 317 244 247 84 452 10 135 138 345 78 50 131 452 12 93 4 11 86 24 97 129 "Ml , jj(sjzzin»- 470 INDEX TO THE CASES. Bank of Miclngaii v. iJrriy ot nl.. Rii.i.s ov rvvcMANGE, rxc, 111. 11 V. . VV IT N r.ss, \\t ■^1 Bank of Montreal v. Belliiino . . . Hunm.i; Acts, 1 V. . ..CoKI'OIiATION,;} V. . ..PuACTici;, II. 7 V. Hiirnliani . . Absoondlnt; Dimjtou, 21' V. Hariilt WuiTs of Tuiai., etc., (i — V. Dc Latrc. .1?iLi,s of Exciiaxcf,, f.tc, 11. (J, 7, S V. Dcnison . . .Writs of Tkiai., ktc, A<, .') V. (rrovor . . . .Bills of ExchaiNgk, etc., III. U! . . V. Hopkiik ... « 1 V. .'i . . . V. Huiiipliries ct al Pleading, VI. 4 Bank U. Caiuula v. vVmistroiiii;. .Mi:s\i; Profits, 7 V. Botliunectal.JuiKi.Mi'.NT as i.v cash of Nonsuit, 1.2 V. Pr.KAiii\(;, V. 2 V. BliHir IJir.Ls of KxoiAjNe;!:, f.tc, III. !). . . V. Boullon .... HviDKNcr,, I. -1 V. Coihy Bir.i.s of lv\c:iiANt;i:, etc., 111. 2;").. — — V. Covert el al. Cosi's, i [. (i V. JuiKiMKNT AS T\ CASK OF NoNSUIT, 1.2 V. PrINCII'AI, and SlU'l'/l'V, 1 V. Ciawibrd . . . Verdict, S Page 87 4.r)2 108 128 3lJ4. 12 4.^)1. 8t 'IM 87 8!) •Sfil. 2% 2.');") V. rivvyniie. . . .Bills of Exchange, etc., V. ;i2 . . . V. Guynneetai. " V. 10, 11 In 10 Corporation, 1 Mandamus, (! V. Lewis Pleading, II. 2!) V. IMcFailaiieet al Sheriff, II. 28 V. Venditioni Exponas, 4, f) . • ••••• V. Miller Siikriff's Sale, 7 V. Murphy . .'. .Em:cutio\, 20 V. Robertson . . Notice of Tria (., 1 .') V. Rogers Nr.w Trial, I. S V. Shor\vood(ylj;.)BiLLS of E.nciiangi:, etc., 5, (j, 7 V. (yl^}.)l\[0RTG A(. K, 1 V. Sniitli Bills' of Exchange, etc.. III. la. , V. SpalVonl . . . . Ahsconding Debtor, 2, 4 V. Street et al. .Bills of Exchange, etc., HI. 12, 17 V. Widnier. . ..Bond, II. 9 V. . . ..Trover, I. 1 V. " II. . 5 V. . . . .Witness, 3 Barber v. Armstrong Evidence, V. 7 V. Money had and received, 7. Bardon v. Cavvdell Arrest, I. 4. Barnes v. McKay Assumi'sit, II. ;J, 4, 8(i 1!);} 88 134 2:'):") 371 444 95 93 12S 291 348 395 443 404 203 328 30;") 4 19 87 10 87 88 10') 43.') 437 4.'il 197 298 4(( GO INDEX TO THE CASEt>. 471 111. II .. S7 4.W 108 1'28 3()4. 12 451. II. (),7,8 8i -ir)!. III. 1(1. . 87 IV.:)... 89 .?fil. 2% Nonsuit, or,,-, ;}:).{ in. !»... 8(j mi 111.2;"... 88 131- Nonsuit, 2r)5 371 414 V. 32 . . . Of) V. 10, ] 1 93 , 128 291 348 395 443 , 404 203 , 328 305 re, 5, a, , 4 19 111.15.. 87 10 HI. 12, 17 87 111. 22 . . 88 105 435 437 451 197 I, 7 298 4(i 60 13amcy v. Simpson Particulars or Dcmand, 5 333 Banilinrt v. Justices of the Homo District Mandamus, 1 290 Banilmi't v. Robortsoii Monky had and ri^ckivkd, 5 298 Barrett v. Rapelje Shkrii'f, I. 4 391 Barry v. Ecdcs Arrkst, II. 8 49 V. " III. 7 51 V. « IV. 9 52 Bartlctt V. Meyers Attornky, 11(3), 2 67 Bartlillo v. O'Reilly (-^^p-) Alderman 2 V. M/'O Practice, 6 23 V. •^-^— {-^J'-) Quo Warranto 30 Barton v. Fisher Nonsuit, 19 324 Bastablc v. Mowat Security for Costs, 1 386 Bates V. McMahon Practice, II. 30 366 V. O'Donohoc Judgment as in case of Nonsuit, II. (i 257 V.Walsh Notice OF Action, 3 325 Raltcrsby v. Haycock Privu^eged Communication 372 Bayard et al. v. Partridge Accord and Satisfaction, 9 14< " " ~ 393 324 Bayman v. Strutlior Sheriff, II. 3 Bays V. Riittan Nonsuit, 21 Beach v. Odell Commission to Examine Witnes- ses, 1 Bcal et al. v. Field et al Venue, 7 Beals V. Sheldon et al. ..Partners etc., 5. 119 444 335 Boainer v. Darling Assault and Battery, 8 56 V. Malicious Arrest, 10 288 V. Witness, 19 452 Beard v. Ketchuni (>!/'•) Audita Querela 3 V. Executor etc., I. 5 204 V. « 11.7,8,9 206 V. Orr Insolvent ETC., 10 240 Beasley qui tarn v. Cahill Maintenance (Statute of), 1 . . . , 285 " 20,21.... 286 , Verdict, 3 444 iiriin-' et ux Amendment, III., 3 26 V. — V. — V. D !••!; V. Stegman . . . .Arbitration and Award, V1(2), 8. 42 Beaton v. McKenzio Pleading, XI. 1 357 Beatticctal. v. Cc.k Costs, 1(2), 8 133 Beatty v. Mcintosh et al Arbitration and Award, I V(l),3. . 34 V. " " IV(1), 10. 36 V. McMaster el al Record (Nisi Prius), 5 378 V. Trespass, II. 10 430 Becktttv. Cornish Hills of Exchange etc., HI. 23. .. 88 V. Cotton et al I'uactici:, II. 42 368 V. Gill Bond, II. l(> '. 106 V. Ur(|uharl Cakrikr, 15 113 Bedsteadv. Wyllie New Trial IV. 12 312 Beebeo v. Annstroiifi Illegalitv, 2 233 • V. Secord et al Plea oing, X. 1 356 Beekmaii v. Jaivis Bankkuft and Bankuuftcy, 10. . . 80 172 INDEX TO THE CASES. nookiiijin V. Jarvis Execution, 3 V. " 9 V. VVdrknian ct al Bankrupt and HANKnurrcy, -. . Rclchor V. Cook Assumpsit, 1. 1- ndt'onl V. Ilayiies Uighwav, 5 Tiell V. Buclianaii Siikriff, II. 6 V. Fiiiitoft JuKV, 1 V. New Triai,, X. J) , V. Gialiam ct al Notice ok Tkial, G , V. Jarvis District (now Countv) Court, 12. V. Ley Arrest, II. 12 V. Stewart Demurrers, 2 V. Libel and Slandeu, II. 1 Bellows V. Coiulce ct al Judge (in Chambers), 4- Beni'dict v. Arthur Carrier, 17 ■ V. Boultori ct al Attorney, IV. 2 V. New Trial, X. 28 ■■■ V. Nonsuit, 12 Bcnham V. Shaw Judgment as in case of Nonsuit, IV.l Bennett v. McDonald Evidence, V. 2 ■ V. Indemnity Bond, 8 Bemis qui tarn v. Eddie Maintenance (Statute of), 't. . . . Benson v. Adams Arrest, III. 4 V. Love Arbitration and Award, IV(2), 3. Bentley V. West « " IV(3),4... V. « " Vl(2),19. Ber'^in v. Hamilton Sheriff, II. 2 V. Pindar Absconding Debtor, 10 Bernard v. Strachan Arbitration and Award, IV(1), 7. Berry v. Andruss Attorney, III. 1 Bethunc v. Browne Satisfaction ■ V.Hamilton Sunday,! Bickerstafl* V. Merchant Set off, 2 Bidwcll V. McLean et al Sheriff, V. 3 Bigcral't v. Clarke False Imprisonment, 2 Bii^elow V. Spraggc Nonsuit, 10 Biirgar, In re Quo Warranto, 2 BiL'gs V. IJurnham Seduction, 7 BillingH et al. v. Barry Bail, III. 8 . V. Hamilton Sheriff, HI. 8 V. Loucks Bail, HI. (! V. Nicolls District (now County) Court, !). . V. Kapcljc et al Amendment, 1.2 V. Arrest, IV. 5 ■ V. Practice, I. 35 V. Reid Notice of Trial, 1 Biakley v. Dejardine Jury, 5 ,. Bird V. [lopkins Sheriff, HI. 9 V. Macauluy et al Interlocutory Judgment, i) Birdsall v. Darling Pleading, 1. 7 4 . . .' . . Bishop V. Lindiiay Irkegulahity, 16 201 202 79 59 230 393 2ti0 317 327 l(i7 50 158 268 251 113 70 320 323 258 197 234. 285 51 36 37 43 393 11 35 68 384 415 388 400 2(t9 323 375 387 76 397 76 1C7 21 52 365 327 260 397 245 341 248 won i?01 202 c:y,2 7!) 59 230 3!»3 2()0 317 327 ouRT, 12. I(i7 * • • * • • • • 01/ 158 2()8 • ••••■ Ar«)J 113 70 320 323 Nonsuit, 258 197 234. )f), 4. . . . 285 51 ,IV(2),3. 36 IV(3),4... 37 VI(2),19. 43 393 11 ,IV(1),7. 35 68 384 415 ■ 388 400 209 323 387 76 397 76 i)URT, 9.. 167 21 52 • ••••••• •>n«^ 327 260 397 9 245 ;.. 341 ........ 248 INDEX TO THE CASES. Bissr.aet et ux. v. RaJenliurst. . . Dowkr, II, 1 4 Blaci V. Adams Auuust, I. 25 V. Halliiliiy " 1.35 V. Sun-onson Ai'prk.ntick, 3 Blacklock v. McM^'i-tin Witnkss, 2 Blair v. Bruce Di; Inji ria, 3 Blanclifielil v. Binl^^ull Plkadinc;, I. 15. Bleeker v. Colman Landioud ano Tknant, I. 4 V. ' I yors , . . iSinv Triai,, i V. 8 ' V. Pe.val Action, 1 V. Meyers ■ il Covenant, 11(2), 1 • V. EXECI'TOR ETC., III. 9 Blinn v. Dixon Bills of Exchange etc., III. 10... Blue V. Gas and Wafer ComiuinyCoupoRATiox, 11 • V. Gas CoMi'ANiES 5 Boag V, Lewis ct a! Usury, 8 >•••••••••• Board of Police, London V.Talbot. London (Town of), 2. V, Pleaoing, fl. 20 Bonistiel v. McMasters Executor etc., I. 8 Booth V. Barclay et al Bills of Exchan^.e etc., IV. 13.. . Borrowman v. Mitchell et al. . ..Trespass, I. 11 Boswell V. Rutian De Injuria, 7,8 Botsford V. Stewart Arrest, I. 17 Boulton, H. J., In re Queen's Counsel Boulton V. Coo])er New Trial, II. 18 ■ V. Defries Use and Occupation, 2 ■ V. Fitzgerald Trespass, II. 26 ,, . . — — V. Fitzgerald et al Amendment, II. 22 V. Jury Process V. Hamilton Sheriff, V. 4 V. Jarvis Remanet V. Trespass, I. 8 V. Murphy et al Landlord and Tenant, II. 3 V. Randall Practice, III. 12 V. — — Qlven's Bench, 1 V, Ruttan Taxes, 6, 7 ■ V. Shields Libel and Slander, I. Boulton et al. v. Weller Variance, 8 Boundary line between Eastern and Johnstown Districts, In re. Mandamus, 16 Bovver V. Brass Covenant, I. 1 Bovverman v. Brown Variance, 7 Bowes V. Johnson Executor, etc.. III. 2 Bowlby V. Woodley (-^i'O Easement Bowman v. Yielding et al Arrest, III. 11 V. Horse Bown V. Havvke Pleading, III. 12 . . . 9 V. VII. 3 Boyce V. Parke et al Witness, 7 Boyd et al. v. Durand Arbitration and Award, VI.(2), 5 Boyes v. Joseph Bills of Exchange etc., II. 13. . . . —_ V. — " V.18.... 3o 473 PAOI 170 47 48 29 451 1.56 243 263 3U 339 143 207 87 129 225 440 282 347 204 90 42S 157 46 375 309 438 433 24 361 406 380 427 264 369 375 419 268 441 292 142 441 208 10 51 231 352 355 451 41 85 94 wf^ i'- I m B^ 474 INDEX TO THE CASES. Boyes V. Joseph Variance, 16 Eoyle V. Garner et al " 5 Boys V. Josepli (Jj).)Bn.ts of Exchange etc., 11 V. Ruttaii False Retlrn, 2 Bradbury V. Ailatiis et al Sheriff, V. 16 -. V. Doole Rills of Exchange etc. III. 3 ■ V.Flint Judgment as in case of Nonsuit, I.l... i.^ V. Holton Bills of Exchange etc, VIII. 1 .. V. Lowry Absconding Debtor, 9 V. Oliver , Bills of Exchange etc, I. 3 Bratlliiiry et al. V. Jarvis Attorney, 11(1), 9 —1 V. Loney Capias ad Satisfaciendum, 9 _ — V. Loney et al. ...Witness, 13 BradliirJ etal.v. O'Brien Assumpsit. I. l-t — V. Pleading, II. 4'2,4'3 V. Receipt,3 Breakenhriilge V. Kins; Amendment, II. -i V. Dower, II. 10 Breeze v. BaUlwin Bills of Exchange etc., IV. 21 Brennan v. llatelic Trespass, II. 21 — In re Mandamus, 15. — V. Servi^< (7l7;.)C()VENANT,3,... Brennan et ux v. Munro Estate, 2, Brent v. Perry Bankrupt and Bankruptcy, 3, 5... V. Trover, II. 3 Brewer v. Bacon Notice of Trial, 3 Brewster v. Davy Abatement, 3 Appearance, .'i i«a •••••••• ••■•«•••■••• . V. McEwen Attachment, II. 4>.... _ V. Thomas Foreign Judgment, 6. Bridfies V. Case Waiver, 3 Briiiirs V. Spilshury Conviction, 2 Bristowc v- Patterson Practice, 1.20. Brock V. MiLean Escape, 2, 5. v.- — Nonsuit, 4 ,. . V. — Venue, 4 Brock District Council v. Bowen ct al Variance, ll, 15 . ■ V. Verdict, 11, 12 Brock et al. v. Bond Attorney, III. 15, 16 Broekville Board of Police, In re. Quo Warranto, 1 Brooke v. Arnold Bills of Exchange etc., VII. 3. Brookfield V. Sigur New Trial, I. 4- V. Nonsuit, 2 Brooke v. McCausland Bills of Exchange etc., V.27( note) Brown v. Allen New Trial, II. 17 . V. Betliune Capias ad Satisfaciendum, 6 V. Dalby Seduction, 3 V. Firby etal Libel and Slander, 1.5 V. Garrett et al Bills of Exchange etc., VII. 1 V. Hawke " VIL 4 PAOI 442 441 4 210 402 S6 255 100 11 82 66 111 452 59 3.50 376 22 170 91 432 292 8 189 79 437 327 9 29 62 216 446 126 362 186 322 443 442 445 69 375 98 304 322 97 309 110 386 267 98 98 T m' rAoa 442 ••. 441 11 4 210 402 H. 3 86 Nonsuit, 255 VIII. 1 .. 100 11 3 82 66 M, 9 Ill 452 59 350 376 00 170 |k^.21 91 432 292 8 189 :v, 3, 5... 79 437 327 9 29 ' 62 216 446 126 362 186 443 442 445 69 375 tl.3 98 304 322 27(note) 97 309 6 110 386 267 r. 1 98 [. 4 98 INDEX TO THE CASES. Brown v. Hudson Foreign Courts ... V. Foreign Law, 2, 4 V. Municipal Council of County of York...(4p.) By-law, 8 V. Palmer Arrest, I. 30 V. Robertson Profert, 2 • V. Ross et al Demurrage, 1 V. Ruttan Distress, 1. 15 V. Landlord and Tenant, I. 9 • V. Shaver Bills of Exchange etc., IV. 6... • V. Shea Constable, 1, 2, 3 — — ^— V. Simmonds Affidavit, 5 V.Simmons Judgment as in case of Nonsuit, L5 V. Street Leave and License, 2 V New Trial, X. 2 ' V. Stuart Judgment as in case of Nonsuit, L6 V. Waldron Execution, 4 Brown et al. v. Boulton (J^))Record (Nisi Prius), 2 V. Parr Arrest, I. 9 V. Ross Payment, 5 V. Pleading, XI. 2 Bruce V. Scholefield Arrest, I. 36 Bruneau v. Joyce Limits, I. 4 Brunskill v. Cliumaseroetal Bought and sold Notes v.. Judgment as in case of Nonsuit, L 16, 17 Brvson Rtal. v. Ciandlnan Interpleader, 7 —I V. Usury, 11, 12 Buell V. Read Easement, 3 Buffalo Bank v. Truscott et al.... Bills of Exchange i^c, II. 3 — -^ v. Witness, 10 Bull V. Bull, In re Arbitration and Award, in.(l), 18 Bunnell v. Caneetal Pleading, I. 13 Burford v. Oliver Ferry, 1 Burger v. Beamcr et al Arrest, I. 26 Burgess v. Fanning Partners etc., 4 Burn V. Straight Arrest, II. 15 Burnham v. Choatetal Principal and Surety, 2 V. Manners Sheriff, I. 20 Bums V. Donelly et al Bail, II. 5 V. Grier et al " II. 4 V. Robertson (^;;.) Pleading, 15 Burns et al. v. Harper Bills of Exchange etc. Burnside v. Wilcox Malicious Arrest, 6.... .New Trial, V. 4 .Pleading, II. 5 L12, V. V. Burr V. Bernard Judgment as in case of Nonsuit, HI. 6 V, Marsh Bills of Exchange etc., VI. 1 V. Munro ., Trover, L 2 475 PAoa 216 218 6 48 373 157 162 263 89 123 18 255 266 317 255 201 30 46 338 357 48 280 107 256 246 440 172 84 452 32 342 213 47 335 50 371 392 74 74 25 83 288 312 344 258 96 435 r-jfisai*""" 476 INDEX TO THE CASES. Burr V. Munro Trovkr, II. 7 ; BurriU v. Mills Arbitration and Award, I. 1 Burrowcs V. Cairns et al Lkask, I. S ^v. Trover, II. 4 Burrows V. Lee Costs, IV(1), 2 V. Washljurn Executor etc., III. 10 ... Burvvell V. Edison Principal and Surety, 3 V. Hamilton Libel and Slander, II. 8 V. Tonilinson Poundage etc., G Busteed v. Schololickl Information, 2 Butler V. Dunn Receiver General.. V. Richardson Particulars of Demand, 1 V. Tiioinas Insolvent etc., 19 Byers v. Moore Clergy Reserves Byrnes v. Bown (-^i^) HitiiiwAv , V. Wild etal Notice of Action, 13, 15 ., ••••••••••••••a C^SAR V. Norton (^p.) Pleading, 29 Caldwell v. Green (yl;;.) Sale V. Wright et al Boundary line Commissioners, 6 Call etal. v. Cameron Costs, VIII. 1 Gallagher v. Strobridge Amendment, III. 1. V. Limits, II. 11 Cameron v. Forsyth et al Counsel, 2 V. Lount Pleading, VII. 2 V. Sheriff, III. 21 V. Trespass, I. 15, 16 428, V. " 11.15 V. McLeod et al Sheriff, IV. 1 V. Playter et al Action, 5 , V. INIalicious Arrest, 3 . V. Tarratt Covenant 11(2), 5 V. Thornhill Assumpsit, I. 3 V. Wheeler Process, 9 Cameron et ux. v. McLean Costs, VII. 2 Campbell v. Beamish {-^P-) Practice, 3 V. Black Pleading, I. 4 V. Boulton Arbitration and Award, VII. 3 ... V. ■ Bailment, 2 V. Bruce et al Irregularity, 11 V. Cain Criminal Conversation V. Clench Sheriff, I. 11 V. Cuslinian Trespass, I. 13 V. Elliott et al Common Schools, 3 V. Pleading, VI. 1 V. Gzouski Practice, II. 45 • V. Set off, 18 ■ V. Hepburn Amendment, I. G ■ V. Lemon Limits, II. 1, 5 • V. JNIadden Practice, HI. 3 • V. McPherson Post Office, 2 Campbell et al. v. Cutneron Aubitkation and Award, VIII. 5. TlGi 437 30 265 437 136 207 371 269 359 237 376 333 241 116 14 326 28 31 108 139 26 282 141 35* 398 429 431 399 16 287 144 58 373 138 23 341 44 77 248 146 391 428 121 353 368 390 21 281 369 359 44 INDEX TO THE CASES. 47/ 437 I. 1 30 265 437 136 207 371 269 359 237 376 II 333 241 116 14 326 28 31 NEKS, 6 108 139 26 282 141 354 3J)8 428, 429 431 399 16 287 144 58 373 138 23 341 VII. 3 ... 44 77 248 146 391 428 121 353 368 390 21 281 369 359 VHI.5... 44 CanifTv. Corwin Costs, 1(1), 15 131 Caniffe V. Canifle et al Vf-rdict, 9 44,5 Carey V. Choate et al Payment into Court, 2 338 — — V.Tate TuEsrAss, II. 17 431 Carfrae,Inre Sheriff's Sale, 5 404 Cargill V. Flint Pleading, III. 5 351 Carlisle v. Niagara Harbor and Dock Company Intf.rlocutory Judgment, 12 Carpenter v. Vandcrlip Arbitration and Award, VI(1), 3 .Limitations (Statute of). III. 4... V. V. V. V. V. V. 245 40 277 Carr v. Proudfoot IMalicious Prosecution, 2 290 —— V. Trotter (^7;.) Costs, 4 7 Carswell v. Huffman...., Notice of Action, 7 325 Carruthers v. , one &C Attorney, 11(3), 9 67 Case V. McVeigh Arrest, I. 28 47 V. Capias ad Respondendum, 2 108 Casler v. Ransom et al Arbitration and Award, IV(3), 12 37 Cavan v. Walsh Action, 1 16 Caverley v. Caverley Libel and Slander, III(l), 6 271 V. « « 1II(2),8 271 Cayley etal.. In re Arbitration and Award, VII. 8 ... 45 Cayley v. McDonell etal...(-4;).)AGREEMr- —, 3 1 ...(J;).) Conveyance 7 ...(^/7.) Estoppel, 2 11 ...(yt;).) Money Lent 19 . .(yl;>.) Ship Registry Act 33 ...(J^;.) Trover, 2 36 Chadwich v. McPherson Amendment, HI. 4 26 Chafe V. Parr Affidavit, 7 18 Chamberlin v. Chambers Mortgage, 10 302 Charles v. Hickson Arbitration and Award, II. 3 31 V. Hopkirk « « IV(2),2... 36 Chase v. Gilmour Notice of Trial, 9 328 Cheney et al. v. Taylor Distress, I. 4 161 Chesley v. McMillan et ux New Trial, L 3 304 Chesnut v. Day et al Landlord and Tenant, I. 3 263 Chisholtn v. Simpson Costs, II. 1 134 V. Ward etal Arrest, I. 18 46 Choate V. Stevens « L7 46 Church V. Baruhart Amendment, II. 2 22 v.- Particulars OF Demand, 2 333 Church qui tarn v. Richards Billiard Tables, 2, 3, 4, 5 81 City Bank v. Eccles Amendment, III. 6 26 - V. Bills of Exchange etc., V. 34 ... 96 ■ V. Demurrers, 17 160 V. Practice, II. 43 368 — — V. Ley Bills of Exchange etc.. III. 13 ... 87 City of Kingsiton V. Brown Process, 8 373 City of Toronto v. Sliields ot a\.(Ap.) Nonjoinder 21 City of Toronto and Lake Huron Railroad Co. v. Crookshank...STATUTES (Construction of), 2 407 I — ■ V. ...Toronto and Lake Huron Rail- road Company 425 Mh -ftfcl flSPS^" 478 INDEX TO THE CASES. Clandinan V. Dickson etal.(j4p.) Jury, 12 17 — V. ■ (^lj7.)SHERIFF, 4 32 Clapp V. Laiiiason ct al Tkespass, I. 6 427 V. Miirduir Plkaimng, II. 39 350 AshfiolJ AisscoNinNG Debtor, 17 , 11 Robertson (yl;?.) Covenant, (J 8 (yl;;.) Damages, 2 9 Scnicks Frauds (Statute of), I. 6 219 . Stover Attorney, 11(3), (J V. Aiiilersoii Assumpsit, I. (i V. Claike Arrest, I. 33.., V. Doiielly Gaming, fi, 7 , V. Durliainctal Costs, V. 2 • •• ••• •••••••••«••••• V. V. V. 67 58 48 223 137 .Trespass, II. 1(5 431 369 362 147 Fuller Practice, III. 7 White Practice I. 21... Clarke et al. v. Bonnycastlc Crown Grant, 7 V. Al'.SCONDING DeUTOR, 5 ,..., 10 Clarkeet al.,Iii re Magistrates, 4 * 283 . AVarrant, 3 447 Ciarkson v. Miller Cognovit, 8 118 Clarkson ct al. v. Noble Auction and Auctioneer, 5 71 V. " " 8,9......... 72 Cleal v. Latham Judgment,3 252 Clemow V. Her Majesty's Ord- nance Practice, III. 10 369 Clench v. Hemliicks Crown Grant, 2 147 Clerk of the Peace v. Western District Municipal Council, In re.MANDAMUS, 19 293 Chne v. McDonald Bailiff, 3 77 Clute V. liadgley Judgment as in case of a Nonsuit, III. 2 257 V. McPherson Trespass, II. 23 432 Coates v. Lloyd Principal and Agent, 2 370 Cockrane v. Eyre et al Hail, II. 15 75 V. ■ District (now County) Court, 10, 11 167 Codd V. Lewis (-^P-) I^n-i'S of Exchange etc., 10 4 V. (yl/p.) Evidence, 6 12 Coit V. Wing Capias ad Satisfaciendum, 1 110 Cole, In re Jury, 8 261 Cole V. Cole Will, 6 450 V. McFaiil Interpleader, 1 246 Colquhoun et al. v. Connel Testatum Act, 3 422 Comer V. Thompson Joint Stock Company, 3 250 Commercial Bank v. Allen etal... Bills- of Exchange etc., VIII. 6.... 101 V. Boiilton ...Execution, 7 201 V. Bronda;eest.JuDGMENT, It, 12 252, 253 V. Cameron. ..Bills of Exchange etc., III. 20 .. 88 V. ...Pleading, II. 30 348 . V. CulrossetalBANKRUPT and Bankruptcy, 9 79 ■ V. Culver Bills ofExciiangk etc.,III.20 88 INDEX TO THK CASES. 479 17 32 427 350 11 8 9 219 67 58 48 223 137 431 369 362 147 10 283 447 118 1,5 71 i,9......... 72 252 369 147 293 77 K NONSLIT, , 257 432 370 75 ■^OURT, 10, 167 10 4 12 UM, 1 no 261 450 246 422 13 250 VIII. 6.... 101 , 201 252, 253 ,111.20.. 88 348 rcY, 9 79 ■11.20 88 FAOa Commercial Bank v. Culver Pleading, II. 3Cf 348 . V. Denisoa ...New Tiual, IT. l9 308 _ V. Ec.cles IJii.LS OK Exchange etc., III. 21... 88 HujiliesetalAcTiox, 6 16 Nonsuit, 11 323 V. V. V. V. V. V. V. V. V. V. 363 367 399 10 115 401 85 95 V. Kerretal...CosTS,I(l),21 132 V. JMcDoiiell otal Execution, 8 201 Rovnolils... Pleading, I. 9 342 — ... « 11.23 347 Rol)lin et al.BiLLS of Exchange etc., V. 3'> 96 Variormaii. Poundage etc., 7 359 Practice. II. 2 , " II. 37 Jarviii Sheriff, IV. 5,6 Jarvis ctal. Abatement. 7. Cassetur Bh.la Sheriff, V. 12, 13 Johnston ...Bills of Exchange etc., II. 11. a V. 25. V. V. V. V. V. V. Practice, II. 11 Wollcr Bills of Exchange etc., III. 8 Commissioners of Public Works V. Daly Arbitration and Award, 111(1), 6. V. Dalvet'al " " I- 10 V. _ " " IV(3),6. , V. « " V.9 Conday v. IMolTatt Appearance, U Condlin v. Tiie Home District Mutual Insurance Company ...Insurance, 2 241 Conger v. Hutchinson Tender, 5 4^21 364 86 33 31 37. 39 29 V. Peterboro' IMunicipal Council (A/).) Municipal Council,4. Connell et al. v. Cheney New Trial, VII. 1 .... 20 313 Consumers' Gas Co. v. Kissock... Notice op Trial, 8 327 11- ..Gas Companies, 3. 4. Cook V. Jarvis Sheriff, 1.21 Cooket al. v, Mair Pleading, III. 7 V. V. Nicolls 328 224 392 252 Norton Practice. II. 20 365 Cooper V. The Canada Company.CANADA Company 109 V. -Distringas 168 116 10 267 66 359 14 235 15 23 402 Copping V. McDoncll Certiorari, 6 Corbett v. Calvin Abatement, 8, 9. V. .Tackson Libel and Slander, I. 2. V. McKenzie Attorney, 11(2), 3 V. Poundage etc., 5 v. O'Reilly, In re .(Jp-) Guarantee, 1 V. Smith et al Indemnity Bond, 13, 14. V. Wilson et al . ..(Ap.) " 1> - ■ V. . . . (Ap.) Pleading, 2 '{ Corkerey v. Graham et al Sheriff, V. 14. 480 INDEX TO THE CASES. PAOI Cormack V. Bersin Replevin etc., 2 381 Connell V. Quick " 381 Corner v. McKinrio New TuiAt,, IV. 7 311 "V. Practice, 11.41 Cornwall v. Baby JMAxnAMLs, li Counter V. Jones Assumpsit, II. 5 .... ■ V. Hamilton Pi,EAi)iNt;, II. 7 • ••••< , 367 , 292 . 60 344. 16 24 Courtney v. Bigelow et al Appeaha.nce. 9 29 . ■ V. Roebuck .Action, 4 Counter et al. v. Hamiltdu Amendment, II. 26. V. Sinclair Covenant, 11(2), 17 Cowan etal. v. Boycc New Trial II. G ... 146 307 344 47 105 Cowper V. Fairman et y Pleading, II. 3 Cox V. Cox " VI. 7 Cozens v. Ritchie Arrest, I. 19 Cramer v. Hodgson Bond, II. 13 ■ V. Nelles Certiorari, 4 116 Crawford v. Cobhledike Costs, II. 13 134 ■ V. Ritchie Venue, 2,3 443 V. Stcnnctt INIalicious Arrest, 11 28S ■ V. St. Lawrence Insu- rance Company {A>'') ^Marine Policy 19 Croker v. Hoggan Arritration and Award, VI( 1), 13. 42 Cronk v. Cronk Partition, 3 334 Cronk et al. v. Cronk « 2 334 Cronyn v. Probat Costs, 1(2), 9 133 Crooks V. Clusholm et al Arbitration and Award, II. 1 ... . 31 V. " « Vin.2.... 44 V. Davis et al .Practice, I. 5 360 . Venue, 6 444 ^•'ciUFF, II. 21 395 ;'i.^ vDiNG, 7 24 . . Account stated, 1 14 . .Limitations (Statute of), IV. 12. . 280 • •• •••••••••••• XotJ • V. House V. O'Giady V. Wilson Crooks et al. v. Law. .... Crosby v. Collins , Cross et al. v. Crouther Costs, II. 13. Croukhite V. Somnierville Arrest, IV. 10 52 — — V. Notice of Action, 9 325 Crouse v. Park Arbitration and Award, III(l), 2. 32 V. Bills of Exchange etc., I. 16. ... 83 Crysler v. Campbell Attachment, II. 1 62 V. Creighton Easement, 2 171 v.Eligh Bond, II. 23 107 V.Thomson Practice, II. 48 368 Culbert v. Conger Record (Nisi Prius), 8, 9 378 V. SHERIFF,1II. 13 397 Cull V. Wakefield Auction and Auctioneer, 2 71 Culver V. McDonell Attachment, II. 6 62 V. Moore Term's Notice, 3 421 Cumming v. Allen Arbitration and Award, V. 10... 39 — V. Guess et al Midland District Turnpike Trust, 1 296 V. Hill Distress, 1.2 161 I INDEX TO THE CASES. , 381 381 311 367 292 60 344 16 24 29 146 307 344 354 47 105 116 134 , 443 28S 19 iD,VI(l),13. 42 , 334 , 334 133 RD, II. 1.... 31 VIII. 2.... 44 360 444 395 24 14 of), IV. 12.. 280 135 52 325 KD,III(1),2. 32 c., I. 16. ... 83 62 171 107 368 1,9 378 397 EER, 2 71 62 421 luD*V.*io!*.! 39 INPIKE TkUST, 296 161 Cunimina; v. Hill Lease, I. 3 Cunimings v. Glassup ctal Payment,!- V. Wit.ne.ss, 20 V. Hawn New Tkiai., VIII. 3. Cuimiiisiliam v. llichanlsuii Agukkment, 1 Ciirtif*;* V. Flindall Aciol'nt Stated, 6 , Cuvillicr et al. v. Browne Evidence, A'll. 3 , V. Tkoveh, H. 1 V. Fraser Bills oe Exchange etc.. I. li. . V. « VII. 14. ■V. Privut Judgment as in case of Nonslit, III. 1 DACKSTEDER v. Baird Deed, I. 2 V. Trespass, I. 19 Dalton V. Bolts Account Stated, 9 .... V. Lake Bills ok Exchange etc., VI. 14. . . Daily v. Stevenson Request, 1 V. Vankoiiglinet Fuaudv lent Deeds etc., 1 Daniel! v. Janus Bah., III. 3 Darby v. Earls Common Schools, 1 Darcus v. Hall Audest, IV. i DarlinG;ton et al. v. Cor!)ett.(^4/J.) Sheriff, 1 Dasconib v. Heacocks Foueign Law, 5 Davidson v. Barllett ot al Bills of Exchange etc., VII. 0. . . V. Bretliom. . . .(^1/'.) Customs, 1 V. Raddick PhacticR, II. 36 Davis V. Birdsall et al Arbitration and Award, VIII. 7. . V. Davis Costs, III. I. (executors of) v. Davis ..Executor etc., II. 6. V. Davis Notice of Trial, Davis Notice of Trial, 7 — V. Dunn et al Bills of Exchange etc., — V. Foitnne Malicious Arrest, 2 . . . — V. " 7 . . . — V. New Trial, I. 2 — V. (Jrand River Navigation Company Corporation, 4 IV. 16., 481 PAQH 264 338 4J2 314 • 19 15 , 198 436 , 83 . 100 257 151 429 15 98 382 220 76 121 .■)2 31 218 99 9 367 44 135 205 327 90 287 288 304 (D ) v. Hamilton Sheriff, V. 6 . (II.) V. " V. 5. — V. Inland Marine Insurance Company Insurance, 7. — V. Lennon et al. . . . (Ap.) Evidence, 1 1 . ,.(Jp.) New Trial, 5 V. V. V. V. V. V. V. McNal Dower, IH. 1 jMcSlierry Bills of Exchange etc., I. 4. ..Practice, III. 8. Minor et al Case (Action on the), 8. Moore et al Division Court, 3 New Trial, X. 24 V. St. Lawrence Insurance Company Insurance, 7 Da'/y V. Mycra (executors of) ..Arrest of Judgment, 7. 3p 128 401 400 242 12 21 170 82 .369 115 168 319 242 54 4M INDEX TO THE CASES. Dawson v. Fraser Warrant, 4, 5, 6 Day V. Hagcrman New Trial, I. 15 V. Spaflbrd Bond, II. 5 Dayton v. Auldjo Dowkr, III. L>, 3 Dean v. McCaity Case (Action on the), 10 Decatiir v. Jarvis Fai.sk Ketlkn, 9 Dee V. Cavanai^li Accoud am) Satisfaction, 8 Dellinghain v. Wilson A i'I'hk.ntice, 2 Delong V. McDonoll Assali.t and Hattery, (i ■ V. Petty Trespass Acts Delong et al. v. Striker etal . . . .Bolndary Line Commissioners, 5. — — V. — . . . .Mandamus, 10 Dempsey v. Douglicrty oi al . . . . Notice of Action, H V. Tlic City of Toronto Corporation, S — ^— — . V. Winstaiiloy Attorney, III. 4- Dempsey et al. V. Wins-tanley. .. " III. 10 ■ V. . . . . Pleading, I. S Denham V. Ridout INIamcious Arrest, 13 < V. Talbot Insolvent etc., 12. . . Denham and the Citv of Toronto, In re. .Mandamus, 't. Denholm v. The Commercial Bank Midland District Trover, 1.7 ..... Denison v. Donelly Bond, II. 11 , . V. Pleading, I. 10 . . , V. " III. 9. . . V. Set off, 15 ■ V. The Home District Turnpike Trust, In re Turnpike Trust . Dennis v. Hughes et al . . •{Ap.) Pleading, 22 Dennison v. Chew Side Links — — V. Sandford Arbitration and Award, VI(1),7. Detlor, In re Boundary Line Comissioners, 2 . . Detlor V. Keogh Pleading, II. 10 De Tuyll V. McDonald. . . (Ap.) Mortgage, 3 Devlin V. Crocker Kvidence, VIII. 2 ■ V. Jarvis Set off, 5 Dickenson v. Clemow ct al Bills of Exchange etc, V. 28. . . . !•••••••< V. VI. 8. Interlocutory Judgment, 3.. Dickson V. Bouilon V. Crooks Post Office, 1 Dickson et al. v. Crooks ct al . .Executor etc., I. 9 V. Markle " II. 4 . V. Street Will, 7 Dittrick V. O'Connor Estoppel, 8 Dixon V. Jarvis Limitations (Statute of), III. 2. . V. Paul et al Bills of Exchange etc., VI. 14i. . . Dobie V. McFarlane Appearance, 1 Dodds V. Durand Goods Sold, 7 Dodge V. Muir Venire de Novo, 1 Doe V. Roe Amendment, II. 3 Doe d. Adkins v. Atkinson Deed, III. 7 MOB 447 306 104 170 115 211 14 29 56 340 108 291 326 129 68 68 341 288 240 291 435 105 342 352 389 438 27 406 40 107 345 20 199 388 95 97 244 359 204 205 450 192 277 98 28 227 443 22 154 i 44.7 306 104 170 D 115 211 s, 8 14 29 56 340 lONEHS, 5. 108 291 326 129 68 68 341 288 240 291 435 105 342 352 389 438 27 406 ',VI(1),7. 40 NERS, 2 .. 107 345 20 199 388 V. 28 95 11.8 97 r,3 244 359 204 205 450 192 •), III. 2.. 277 VI. 14... 98 28 227 443 22 154 Doe d. « it tt It « « « « <( tt it « « « « tt tt tt it tt it « tt tt tt tt u u u tt « tt tt tt tt tt tt tt tt tt tt tt tt tt u tt INDEX TC THE CASES. Anderson v. Anderson . . Ejectment, VI. 6 V. Hamilton(yl/j.) Will, 2 — — V. Todd etal.. Judgment as in case of Nonsuit, I. 10 V. .. " II. 4. V. ..MOUTJIAIN 488 riei 181 37 255 256 302 Anderson et al. v. Erring- ton Amendment, II. 17. ■v.FairlieldEsTATE, 13. Armstrong v. Roe Ejectment, III. 1 . Armour v. MnEwen .... Title, 1 Arnold v. Auldjo Costs, VIII. 10 . . . V. EVIDKXCE, III. 1. . , Atkinson v. McLeod(y!^.)EjECTMEXT, 2. . . . . V. ^— — (^Ap.)HEUi V. - (^/>.)Partnership . . . . . Auldjo V. Holiister Judgment, 14..... V. TlTLE,2.' Ausman v. Munro Amendment, II. 19,20. V. ' Execution, 15 Ausmanetal.v.MinthorneLiMiTATioNS (Statute ok), II. 15, ' 1(),17,IS Baker V.Clark Will, 11, 12, 13 V. Gould Crown Grant, 4 Baldwin v. Stone Title, 5 Barker et al. v. Crosby. . Ejectment, VIII. 1 Barvvick et al. v. Clement.BuiLDiNG Societies . V. .Ejectment, II. 2 Beckett v. Nightingale ..Limitations (Statute of), II. 26.. ■ V. ..Maintenance (Statute of), 13 ••• Bell V. Orr Sheriff's Deed, 1 -. V. Taxes, 4 .- V. Reaumore et al . . " 3 V. Roe Ejectment, VIII. 5 Benner v. Burd...(^^.) New Trial, 1 Bernie v, Lundy Mortgage, 12 Berringer v. Hiscott .... Estate, 1 1 . I V. .... Trust AND Trustee, 2 Biggard v. Millard Deed, I. 1 __^_ V. • Fraudulent Deeds etc., 2. Bond V. Roe Ejectment, II. 3 . Bonter v. Savage Maintenance (Statute of), 12 Boulton V. Fergusson . . .Absconding Debtor, 26 . V. . . .Title, 7, 8 V. Walker. (^p.) Ejectment, 5 Bonter V. Fraser " 1-2 Boyerv. Claus « Vni.20 , V. .Trust and Trustee^ 1. Eradt V. Hodgskin Deed, II. 6 Breakey v. Breakey . . . .Evidence, II. 6, 7 V. .... Marriage, 1 . Brennan v. O'Neill Sheriff's Deed, 5. 23 190 177 423 140 196 10 14 22 253 423 24 202 274 450 147 423 181 109 176 276 286 402 418 418 182 21 302 190 437 151 220 176 285 12 423 11 173 184 437 152 194 294 403 18t l)(.0 ,1 <( « (C it « (( <( V. Sininic>ii(ls..Ni;w TniAi,, II. 22.... V. ..PliACTtCF.,111. 2 V. ..Ki;c()Kn (Nisi I'uas), 7 Biiiriliam ot al. v, Bo\vc:'.(-'l/> ) DriKD, 3 BurnsMo V. lloitor Ji odMENX as in cask ok Nonsuit, If, 3 Burr v. Dcnisoii.. •(Ap.) Estoi'I'i:i,, 4< V. ...(Ap.) Leask, 1, 2 V. . . .(Ap.) VF.unicT, 2 Biirritt V. Diiiihain K.ic.CT>!f:Nr, I. 10 Butler V. StovTtis Estatk, 12 V. ExKCtTOR KTC, 1.2 Cami)l)pll V. Mamilt'iii ..Sm:r,in"'s Df.kp, i V. Thompson. .ExKCtTioN, 12 '. . . . Cameron V. Roljiiisonotal " 19 _______ V « O.) !•••••• • ••*•«• Canada Company v. Rr);'.E.n:cTMKNT, IV(1), 2 Caroyotal.v. Cnmb('rIniii!l..>MTATi(>Ns (Statutk of), II. 32.. V. AJoRTf; \(;i;, 13 Case V. Aln-rill Ni;\v Tiuai,, HI. 3 .. .. Chantllor v. Tossicr \ vvi ua mzation . . ... Cllarlo^s V. Cotto-i. (A p.) Ciiov, n Grant, 2 V. .(. Ij).) OvKurioi.DiNc; Tionant Clajip V. Ifiiiri'ian rRKD'oiiirk'Siu lua; Claik V. i\Icl>iiiis 1")KF,n, II. 11 V. Mainti'.wncm: (Statltij of), 5, (i. Claiksuii V. IlaskiMs . . . .'^'f.nancv in (.'o.mmon, 2 Claii'^ V. Si^ w; r! E.ir.cr >fr;NT, L 27 Connor v. Connor Ti'n.i;, U) CcrlioU V. Si)rouli' A>. km-.mkn'I', 11. 13 Court V. Tuppcr ot al. ..Execution, \6 Crawford v. C'obljiruikc .E\ idlnte, II. •!• Creen v. Fricsnian E.iectmi::nt, T. (', 7 " 1.14. I>I',f T())l V. ■ V. Crew V. Clarke Ahsconding Dv.VjTou, 21 . V. TiTi.i^;, \A- , Cronk ci a', v. Smiili ...Dkf.h, III. 1!) .. Crooks V. Calder Binhhook (Township of) V. Cummings . .. Ami;ni)^;i;nt, Jl. 11 , V. . . . . Vr.N u E, 1 1 V. . . . .Wir.L, 9 V. Ten Eyck. . . .Binp.uook (Township of) Crooks etu\'.v.Cummin|.'sCosTS, II. 11 Crooksliatikv.CrookishankEjECTMENT, I. Hi, -v.HuniborstoneMouTcAGE, 8 Crumback v. Roc Ejectment, II. 8 . . . Cubittetal. V. McLeod.. " IV(2), 3. V. • ..FonPEITUKE, 1 Cuthbertson v. Sagcr et al.EjECTMENT, I. 8. 307 262 310 3(i8 378 9 2.56 11 17 36 174. 190 204. ^03 202 202 203 178 277 302 310 302 8 no ooo 153 28:") 4-20 176 424. 23 202 191. 173 174. 378 12 421. i.'>r) 102 ?3 444. 450 102 135 174. 301 176 179 218 173 P.tOB 307 ii 2()2 310 3(i8 378 9 Nonsuit, 2r)6 II 17 36 174. 190 204- 403 .... 202 202 203 178 11.32.. 277 , 302 310 302 , 8 ^ 222 ..*. 153 3I-), 5, G.. 28;") 420 I7G 424. 23 202 , 191. 173 174. 378 12 421. '•••••••• i •}•) > 102 23 444. 4r)0 102 135 174. 301 176 179 218 173 Doe J <; 4( l( « , 10, 11, 12 404 ■ ••••■•••••• Xl/ 16 418 253 Harris et ux, v. Bins-on . Ni;w TitiAi,, V. 5 312 Havtlon V. Crawlonl. . . .Tnr.K, 11 424 Hciliwell V. HuL:ill Estati:, 1 ;') 191 Henderson v, Burtcii . . . Et.F.ciT, 1,2 185 V. Roe E.iF.cT,^iE\T, V. 10, II 180 V. \Va ivi:k, 4 447 Henessy v. Myers Dfeo, ill. 2 153 — V. EsToppF.r,, 2 191 Hill V. Gan.kr Limitations (Statute of), II. 22. . 275 Howard v. McDoiiell ... " II. 3. .. 273 Huinberstone v. Thomas. Estate, 1 189 V. Heir, 3 229 Hunter et al. v. Roe. . . .Ejectment, III. 11 178 Husscvv.Grav " VIII. 8 183 Hare et al. v. Polls Si iivi:v, .'{ Hurley v. McINIaniis . . . .Shf.uiff's Sai,e, 3 . . , — V. Roe Jl IKiiMENT, l(i R ,oe VI. 4 181 IV(2), 1 179 .Estoppel, 3 191 « Impcy V. Gray .... Irvine v. Webster. . Jackson et al. v. Wood rulTe Crown Grant, 1. 147 189 173 214 1.56 148 190 Jarvis v. Cuniniinsi Estate, 5 Jeffrey v. Williams Ejectment, I. 1 . . . Jessiij) V. Bartlet Fif.ri Facias, 1 ... Jones V. Caprcol Deed, IV. 1 Kcatina; v. Wyatt Crown Grant, 15. Keeler v. Collins Estate, S Kemp V. Garner . V. Roe . . , ...Ejectment, I. If) 175 II. 7. 176 Kenny et ux. v. Johnson. Ejectment, VIII. 13 183 Keogh V. Calhoun Execution, 14 202 King's College v. GrahamEjECTMENX, I. 20 175 V. Kennedy Corporation, 10 129 366 301 184 426 206 173 ,.. 317 265 177 180 202 403 184 12 198 214 12 404 10 16 418 403 253 312 424 191 185 180 447 153 191 f), II. 22.. 275 11.3... 273 189 229 178 183 181 179 191 147 189 173 214 156 148 190 175 176 183 , 202 175 129 INDEX TO THE CASES. Doe d. « l< « « « u u <( « « « « « l( (I « Sheldon v. vVnnstronc' ...Foreign Law, 3 V. Ramsay et al. Ejectment, IV(1), 7. V. " VIIL 21. SherilTv. McGilliverav... " I. 1.% 17. Sherwood v. Roe ...."..... " III. 12... V. Stephens ... " I. 18 Short V, Uass (yl;^)EniioNEOi-s Suuvev... Shuter et al. v. Carter ...Rjecimknt, II. 1 V. ...Joint Tenancv, 1 V. McLean. .iMoKT(;.\(;E, 2 •••••••••« Silvcrthorn v. Teal Limitations (Statute of), II. 23... Simpson v. Privat Execution, 17 Simpson et al. v. IVIalloy et al Eiectment, VIII. 19 V. Landlord and Tenant, I. 7.. V. Maintenance (Statute of), 9 Sinclair v. Arnold Amendment, II. 8.. Smith V. JMevers Crown (Juant, G... '- — Will, 4- Roe IIjectment, II. 2... • • ••••«■ ••••••• Shuter et al LIxecutor etc.. III. 7 Leavens Landlord and Tenant, I. 5 Limitations (Statute of), II. 6 V. V. Smyth V, V Snyder v. Masters et al. (yl/;.)CuowN (Jrant, 1, Soniers et al. v. Bullani ..Kjectment, VIII. 16. S|)airoril V. Brown et ah.. Deed, III. 4 V. ' Fieri Facias, 6 V. Sheriff's Deed, 3 V. Title, 3 •••••••••••••••••••••a* Sprin^sted v. Hopkins ...Witness, 8 Slanslield v. Whitney ...New Trial, X. 13. Steel V. McGill F'raudulent Deeds etc., 12 , Stephen et ux. v. Ford. ..Evidence, VII. 2 , Stewart v. Radicli Limitations (Statute of), II. 2. V. Roe Ejectment, VI. 2 V. Yairer New '''rial, VIII. 5 Slocking V. Watts Title, 12 Stodders v. Trotter Ejectment, I. 22 Street et al. V. Roy «« 11.4 180 20 253 18 178 221 225 425 154 173 177 237 301 218 179 185 174 178 174 11 176 250 300 275 202 184 263 285 22 147 450 177 207 263 273 S 184 1.53 214 403 423 451 31S 222 198 272 181 315 424 175 176 r ■tf-; PAoa 180 20 253 18 178 221 225 425 154. 173 177 237 301 218 179 185 174. 178 .... 174 .... 11 .... 176 .... 250 300 , II. 23... 275 202 184. .... 263 .... 285 22 147 450 177 207 263 6 273 8 184 1.53 214 403 423 451 318 222 198 2 272 181 315 , 424 , 175 176 INDEX TO THE CASES. Doe d. Street et al. v. Roy Ejectment, V. 4 Strong V. Jones " VIII. 22 Stuart V. Forsyth Kingston (Township of) Sullivan v. Read New Trial, III. 5 Sutton V. Ball Ejectment, IV(1), 4 Talbot V. Paterson Slkvev, 1 , Taylorv. Peterson Will, 8 Taylor et ux. v. Sexton ..(A]).) Limitations (Statute of), 2. Tenbroek v. Cole Costs, II, 5 , Thompson V. McKenzie .Sheriff's Sale, 19 V. Putnam etal.EjECTMENT, IV'(^1), 4 Tiil'any v. Miller Sheriff's Sale, 17. .)ArTORNEv V. ..,(yl;>.)PLEAiM\G.20 Droan v. Stnitli Nnw Trial, IX. 2 Drennaii V. Boiilton " If. 16 Drew it al. v. Haliy Xi isance, 2. 3 DrfLfirs V. Waite Rills of Exchange etc., II. 10 Dniminoiul v. Hrailley Partkulvus or Demand. 9 V. Cartliew Amendment, IH. It Ducat V. Green , AuiMrRATioN and Award, IV(I), 1. V. Sweeney et al i\IoNEV had and received, ■i V. XdNSUIT, IS Dnilley v. Moore WrrNESS, 17 Duiryan v. norland Mills or F.xchangf.; etc., V. S ,'. Derrick Hail. I. 2 Dii;;aan, In re (^oiminek Dun!a])v. JM'DoiK'al Limitaiions (Statute of), II. 33... Dunn V. iMcDouirall iMalicioi >; Arrest, o DunninL' V. (Junlon Interpleader, I Dunscoinhe v. Fortrer et al Similiter, 2 Duraiul V. Stevenson Hills of Exchange etc., VII. 2 EAKIXS V. Evans New Trial, IV. t Easter et al. v. Loncrliamp et al. District (now County) Court. 2,. Eastern and .lo'mslown Districts, In re Mandamus, 16 Eastern Dist. Council v. IIutrliinsDisrRiCT (now Coijv' ) Council, 6 Eastman v. Reid Conviction, 8 Easton ct al. v. Loni^clmmp et al.BAiL, II. II V. ^ ; » II. IS Eastwood ct al. In re Partition, 4 V. Helliwell Water, .'» V. McKenzie Sheriff, 11. 8 — — V Treason, 1 tknt 67 279 219 249 398 95 12 29 30 282 51 104. 315 82 354 121 60 214 315 26 316 309 329 85 334 27 34 297 324 452 92 72 128 277 287 216 406 9S 311 166 292 163 127 75 76 334. 448 393 426 INDEX TO THE CASES. 49S rAM 67 11. 14.. 279 219 249 398 30 95 12 29 30 2S2 f)l 104. ••■•■•••« Oil/ 82 3')4, 121 GO 214 315 .1 26 .316 309 329 10 S.T 334 27 34 297 324 4,^2 \/. s; 92 72 128 II. 33... 277 , 2S7 246 406 II. 2 98 311 )i;rt,2.. 166 292 16.3 127 75 76 334 448 393 426 Eastwood et al.v. Wesley Bills op Exchange etc., VII. 16... Ebcrts V. Montreuil Joint Tenancy, 3 Ehcrts et al. v. Lamed Interlocutouy .Tudcment, 4 V. Siiiytho et al Navigation. 3 , Ectlcs V. Mooilic cl ill Trespass, II. ,)SnERiri',3 Fish V.Doyle Apprentice, 1 Fisher v. Brooks Amendment, I. 4 . V. Daniels et al Arrest, II, 10 V. Ferris Contract, 12, 13 ■ V. Tliavcr Akkidavit. 3 Fisher et al. v- Beach Abscondinc; Debtor, 11 . V. F.iiifar .Ii.Df.MENT, 9 V. City of KingstoiiCosTs, I. (1), IS Fitzgerald v. Websicr Evidence, IV. 2 V. Mai.iciois Arrest, !• Flaherty v. I\Iniis Pleading, Mil. 2 Fleminif V. Wilkinson (Ex'rs o1')Ameni)MENt, I. 1 , Flevvellyn v. Webster District (now County) CouNcit,, 2 Flint v.* Spa (lord Practice, HI. 1 v. Uiiilork HoND, I. 11 Ford V. Cariall (.'1/).)Costs, 3 V. Crahl) (Ap.)ii:voK of County Court V. (yl;;.)iMANDAMUs v. Lusher Absconding Debtor, S Ford et fd. v. SpaHord Attorney, III. 7 v. (yl;7.)SET OFF Forrester v. Clarke Arrest, IV. It, 15 - V. Graham Appearance, 2 _ V. Nlllity . v. Spencer New Trial, X. 10 PAIIK 429 If) II 4.07 77 92 •1-51 326 ir)9 241 131 Kill 209 248 41. b'i 230 32 29 21 50 126 18 11 Forster v. Retles el al Composition Forsyth v. Hall Execution, 13 v. Heir, I ■ V. Limitations (Statutk of), I. I, Forsyth et al. v. French et al ...Deht, 2 . V. Johnston etal. .Executor etc., III. 8 Fortune v. Hickson etal Set off, 9 Foster v. Fraser Money lent 131 196 2S7 355 21 163 368 104 7 16 19 10 68 31 53 28 330 318 123 202 229 272 151 207 389 299 PADK 425) If) 11 goo Jn'oVJg"..."... 4.07 77 ^1} v«*i? ■•■••• o f^ -151 r, 1 W-l^ ir)9 241 131 ) Court, 1... KJfi 3,4 20!) 248 \RD, VIII. 3.. 41. V-, 3 5") '^30 32 29 21 50 126 18 II 11 252 llllZZZZ. I31 IflG 2«7 O'c'oLNCIL, 2 163 , 104 7 tURT 16 19 R 10 68 31 53 28 330 318 123 202 229 0FJ,'l."r.!!.*! 272 151 207 389 299 INDEX TO THE CASES. Hodgson Stay op Proceedings, 2 ^^I'lli''" District (now County) Couht, 4. Rei'lkvin ktc, 11 Fotheitrill Bond, II. 14 ' • i'l'^iL^ Arbitration and Award, IV. (1), 9. . Practice, I. 28 Fouler V. Hooker et al Carrier, 7, 8 V. McDoiiiiKI Appkai., 2 Fialifk V. Ilnll'maii Accord and Satisfaction. 7....! I-i'lVi'it y Pleading, II. 26 Macon Judgment, 19 Dickson False Imprisonment, 8. JURV, 10 Sheriff, I. 22 Warrant, 2. Freclaiul ' French v. V. Friosman Fullei- V. Full me r e Finniss v, Flint f Ioods sold, 2 t. V. Tiionii)son Amendment, II. 23,. V. . . . Usury, 7 '. .lones Kingsniill Bankrupt etc., 13,14. Limits, II. 15 , .Queen's Bench, 2. V. Donelly et al I'leading, II. 4. Hall Practice. I. 15 t. ox. V. Donuan Dower, II. 13 , Saweis Auction and Auctioneer, 3 GALBRAITII v. Walker Arbitration and Award, I. 9. Callasilier v. Brown et al.. .(y!//.)TRESPASS, I. 12 » . .. Gamble v. Buriisitleet al. .(yl/>.)P)V-LAW, 4, 5 V. . .(yl/; )License, 1 Gamble etal. v. Biissel! Execition, 1 V. Jarvis Absconding Debtor, 16. 495 PAQI 413 166 382 106 36 362 112 28 14 347 253 210 261 392 447 226 24. 440 282 80 375 344f 361 170 71 31 427 5 18 201 • V. ■ V. • v. • V. • V. • V. • V. • V. •V. .False Return, 7. Recs Assessment of Damages, 2, 3. . . . Covenant, I. 6, 7 n [1 rn 5 Deed, II. 13 Estoppel, 5 Notice of Trul, 12, 13 i. ...Record (Nisi Prius), 11 Uses and Trusts Gardener v. Morrison Arrest, I. 32 Gardiner v, Gardiner Executor etc.. III. 4 Gardner v. Biirwell et al Magistrates, 1 V. New Trial, VI. 2 . . . . V. Stoddard Costs, 1.(2), 1 Garfield v. Simons Arrest, III. 6 Garland v. Burrowes Attachment, II. 12 Garrion v. WoodrulT (y]y>.) Variance, 1 Garrison v. Balkwell Attachment, III. 2 Gascu V. Marshall et al Fixtures, 2 Gas Company v. Blue same as Gas Co. v. Russel et al. infra. 211 d6 142 143 153 192 328 378 438 48 207 283 313 132 51 63 36 63 215 496 INDEX TO THE CASES. m\ m mu Gas Company v. Davis same as Gas Co. v. Ruisscl et a!, infra. V. Ki^ss()ck Notice of Tkial, 8 V. " '• 11 V. N'icolls Gas Companies, 3, -t V. O'Neill et al..siimc as (i;is Co. v. Kissock, supra. V. Russel ct al. . .Gas Compami;s, 2 ••••... Gass V. Cololeiigli Nkw Triai,, IX Gates V. Crooks Vkkdict, 2 V. Dovenisli MAt;isTRATKs, 13 ■ V Statute Lahol k V. Tinning Gaming, 3, t, f) Gates et al. v. Crooks J5ii,ls of Exchange etc., VII. 7.. V. New Trial, X. (i V. Poundage etc., 1 V. USCRV, 1 Gavan v. Lyon Practice, IF. 5 V. Term's Notice, 1 Gedilcs V. Cnlvor et al UstRV, 10. . V. iNlcCraeken Skt off, 17 V. Roilgers Costs, VI. 3 Gee V. Atuooil Arbitration and Award, V. 11 . . Genesee i\[utual Ins. Company v. West man [Ap )Contract, 1 Genesee Mutual Ins. Company v. AVeslman (jy;.)FoREiGN Corporations, 1.12 German v. Grooms Dower, II. l- Gibl) V. MeDoueil General Average, 2, 3 . V. IMorUoito Bills of Exchange etc., V. 22, 23. Gibbs V. Cravvl'ortl et al. . .(^''i/j.)LANDL0Rn and Tenant V. Kiml)le Indorsement, I. S Gibson v. Cubitt Covenant, 11.(2), 14 V. Wasliinjfton Jiugment as in case ofNonsuit.I. 8 Gilbert V. Simpson et a! Arbitration and Award, VI. (1), G Gilbert et al. v. Sleeper Evidence, II. 2 Gilkison, In re Attorney, I. 1 Gill V. Broun Seduction, 5 Gillespie et al. v. 13. A. Fire and Life Assurance Company . .Insurance, 9, 10 V. New Trial, I. 17 V. Cameron . .. .Costs, VI. 2 ■ V. Grant Bail, II. 8 V. Nickerson. • . .Attorney, IV. 9 V. . . . .Insolvent etc., 26 V. ....Judge (in Chambers), 5 V. .. ..Limits, I. 6 Gilmore v. Crooks et al Executor etc., I. 11 V. Edmunds Bills of Exchange etc., V. 17... V. « " VII. 9.. v Lockliart et al Lease. I. 6 Gilmour v. Hayes Evidence, I. 2 Gilraour ct al. v. Wilsca et al.. .Judge (in Chambers), 3 Gilpin V. Greene Evidence, I. 5 327 328 224» 224. 316 4-1-4. 284. 407 223 97 317 3.')9 439 3C4 421 440 390 138 39 13 1()9 ''25 ~94 17 236 145 2.')5 40 194 63 386 242 306 137 74 70 241 2.')1 281 205 94 97 265 193 251 193 r4(M jl et a!, infra. 327 • ••■•••••a* *i^yj 22^< )ck, supra. ...•••... 22* 316 44-4. 2S4. 407 223 TC, VII. 7.. 97 317 3.-)9 439 3C4 421 , 440 390 138 ARD, V. U.. 39 , 6 Bs, I. 12 13 1(>9 3 2if) Tc/V. 22, 23. 94 sT 17 236 145 iF Nonsuit, 1. 8 205 ■ARD, VI.(l), G 40 194 63 386 242 306 137 , 74 70 241 ), 5 251 281 [ 205 ETC., V. 17... 94 VII. 9.. 97 265 193 0,3 251 193 INDEX TO THE CASES. Gilpin V. Greene Joint Stock Company, 4 Gi.ssing et ux. v. Hopper Money had and received, 10, . . . Glass V. C()lcloiii,'h Arrest, III. 9 Giassslbrd et al. v. McFaul Bills of Exchange etc., VII. 5.. Gleesoii v. Wallace Evidence, VIII. 1 Glenn v. Box Practice, I. 9 Glynn v. Dunlop Capias ad Satisfaciendum, 5 . . . . Goldie V. Maxwell Bills of Exchange etc., III. 1... V. <» III. 4... V. «« IV.33.. V. Partners etc., 6 Good et al. v. Harper Contract, 5 Goodall V. Eluisley Covenant, I. 4 V. " II(1),'I> V. Glen et al Costs, VII. 1 Gooderhani V. Chambers et al... " VIII. 6 V. .. Payment, 3 V. Cliilver Costs, 1.(3) 7 Goodtitle d. Garten v. Roe Ejectment, II. 3. . Kimball v. Ripson . .Practice, II. 9. . . . Synden v. Barker ..Crown Grant, 13 <••••• Gordon v. Carrick Practice, II. 34 V. Cleghorn Demurrers, 14 V. Notice of Trial, 14 V. Fuller Ariiest. II. 14 . V. Commission TO examinewitnesses,2 V. Evidence, VIII. 4 ■ v. Sonierville Arrest, III. 5 Gore Bank v. Chase Demurrers, 16 Gorliam v. Boulton Gaming, 2 Gorrie v. Beard et al .Fudgment, 13 Goslin V. Tune Interpleaders, 3 V. .Judgment, 4 Gould v. Birmingham Bail, II. 12 V. Freeman Judgment, 23 V.Jones RiDEAU Canal V. White Sheriff's Sale, 6 Gouldrieli v. McDougall Amendment, HI. 2 Gourlay v. Gunn et al Pleading, I. 3 V. McLean Appearance, 8 Goiithier v. Routh Foreign Judgment, 9 Grace v. Mciiihan Security for Costs, 3 Gracey v. Wilson Set off, 11 Graham v. Browne et al Principal and Agent, 4 V. Elliott Executor etc.. III. 13 V. Kingsinill Escape, 4 V. Quinn Testatum Act, 2 Grand River Navigation Company V. McDougall et al Arbitration and Award, V. 4 . . . V. Wilkes Notice of Trial, 2, 3, 4 Grant v. Caldwell (^;7.)Warranty, 1,2 /. Eyreetal Bills of Exchange etc., V. 21. 497 PAoa 250 298 .51 98 199 361 110, 85 86 96 335 124 142 143 138 140 337 133 176 62 148 366 1.59 328 50 119 199 51 160 223 253 246 252 75 254 384 404 26 341 29 217 386 389 371 208 186 422 38 22 37 94 3 R ill ii.;' 498 INDEX TO THE CASES. Grant v. Mcintosh (c'x V. McLean Skehiff, III. 3.... V. Taylor ct al Puactick, II. 'i5. Grant et al. v. Faninni; MksnePuofits, 1 Grantham V. Caldwell Lease, I. 7 V. Jarvis False Return, 13, l-l V. NuL tiel Record, 1 V. Peters Indorsement, I. fi V. Pcwoll Li.MiTAi'ioNs (Statute of). III. 13.. Gravely v. Junes (/1//.)Pleadi\(;, 33 Gray v. ^^-nilii Set off, 3 Grav (I. ». V. Detuuk Penal Action, 2 Green V. Hamilton JMesne Profits, 4, f) \. Pleaimn(;,I. 12 Grc'rorv v. Flanniiran Cehtioraui, 1 Grejiory el nx. v. Connolly Accolnt (Action of), 1,2,3. . V. Estate, 7 Grcic ct nx. v. B.tinl Limitations (Statute or^,IV. 11... Grev V. llohne Practice, I. 2 Griiiitlis V. Welland Canal Co.. ..New Trial, X. 1 Gri^rps V. Meyers Attornev, III. IS Grisdale v. Ponlton Aukitration ano Award, 111(2), 7. Giover V. ij.llock (Jeneral Average, I -V. Cameron Frauds (Statute of). III. 3 Groves V. Clark et al Evidence, II. 13 Grousette v. Ferrie Carrier, 9 . v. General Average, 4 Gunn V. (iillcspic Auction and Auctioneer, 4f. V. Trover, IL 2 v. McDonald Malicious Arrest, 16. V. Van Allen New Trial, VIII. 12... Gwvnno v, Brock Leave and License, 4.. —^ — V. Pleading, VIII. 1 252 396 367 295 265 212 330 236 278 28 388 339 29r> 34.2 115 14 190 280 3(i0 317 69 34 225 220 195 112 225 71 636 289 315 266 355 HAACKE V. Gordon Executor de son tort, 1, 2 208 Hadlcy v. Hearns et al Affidavit,6 18 Hagarty, In re Attorney, I. 7 64 Hagerman v. Smitii Payment, 1 337 Haighl V. Ballard Notice of Action, 12 326 Hale V. Mathison Arbitration and Award, VII. 1... 43 V. Variance, 2 44t Hales V. Tracey Bankrupt and Bankruptcy, 14 79 Hall V. Ahvay Arbitration and Award, II. 2 31 V. Armour , Foreign Judgment, 2, 3 216 V. Bidwell Infant, 2 237 V. Brush Arrest, I. 31 48 V. Buck Joint Stock Company, 1 250 V. Coleman Bills of Exchange etc., VII. 13... 100 V. Fergusson Arbitration and Award, III(2), 6. 33 V. Griswold Practice, III. 5 369 V. Hunter Interlocutory Judgment, 13 245 V. Morley (il;j.)DEBT, 2 9 Maa 252 396 367 295 265 212 330 236 ), III. 13.. 278 28 388 295 34.2 115 2,3 14. 190 :,1V. 11... 280 3(i0 317 69 ), 111(2), 7. 34. 225 I. 3 220 195 112 225 n, 4. 71 636 '.. 289 315 266 355 1,2 208 18 64. 337 326 ), VII. 1... 4.3 441 rcY, 14. 79 ),II. 2 31 216 237 48 250 , VII. 13... 100 ), 111(2), 6. 33 369 ... Harris v. Hawkins Costs, II. 2 Harriso" v. Livinirnlon lk)NT), I. 4 Hurt V. Meyers Assumpsit, I. If) . V. I'lkading, n. 44- V. " HI. 10 V.Wilson Limitations (Statute of), IV. f) ... Hart et al. v. Boylc Jud(;e (in Cjiambkks), 2 V. — — ftnciMKNT or NoN I'lios, 3 V. Practice, 1. 24- V. Diivy Bills of P^xchangf, etc., VII. 7 Hartley v. Hearns Si'iniTtous Luiuoiis, 2 Heartley et al. v. Jarvis Distress, 1, 7 V. Replevin etc., 13 Harvey v. Gearey Bills of Exciiance etc., V. 29 v. Kay Costs, 1(2), ") Harvie v. Claikson Goods sold, 8 Hasloton v. Brondijre Coonovit, 3 Hastings V. Cliampion Practice, II. 10 ■ ■ V. Cliain[)ion et al Ahatement, 4 V. Earnest Appeal, 3 Halton V. Fish (Ap.) A a i\k?.mkst, 1, 2 V. (yl7A)X0NSLIT Havens v. Donalilson Boinharv Line Commissioners. 7. Haw V. Montgomery et al Bail, II. 1 1< Hawkc V. DiiL'tran Arbii jjation and Award, 1. 5 V. — ^— " '* 11. (i V. Judgment, 24 Uawkeshavv v. The Dist. C«-uncil of Dalhousie District(now County) Council, 18 Hawley v. Dixon et al Partners etc., 13 v. Hani Husi!A\n and Wife, 1 v. Novsuit, 3 Hawn et al. v. MaiKlen et al Executor etc., II. I Haydon v. CnnvCord Abscondinc; Uehtor, 13 . V. Frauds (Statute of), I. 1 V. " HL 1 v. . Landlord and Tenant, I. 1 v. Trespass, I. I.. • •••••••■••••••• I Hayes v. Davis Bills of Exchange etc., I. 6 Hayle v. Hayle Seduction, 4 Hayward v. Harper Practice, I. 29 Heather v. Wallace Absconding Debtor, 12 v.Wardnian Arbitration and Award, VIII. 10. v.- Practice, II. 4 V. " II. 39 Helhvvell v. Eastwood et al New Trial, X. 16 -v. ■ Trespass, II. 7 Henderson v. Beekman New Assignment, 3 ■ v. Haiper Affidavit, 8 ■ v. Amendment, II. 33...., - V. ,, Landlord and Tenant, L 8 3ir» J 34 l(»2 GO 350 352 279 251 260 362 99 407 161 382 95 132 227 ns 364 9 28 1 22 108 75 30 31 254 165 336 231 322 205 U 219 219 262 426 82 386 363 11 45 3C3 367 318 430 304 18 25 263 INDKX TO THE C'ASK!«. AOl ;nr. J3'l. 102 60 350 , 352 I, IV. f) ... 279 251 t 2G0 3(»2 vir. 7 99 407 t()1 382 V. 29 95 132 227 ............. US 3C4. 9 28 1 22 lONKUS, 7.. 108 75 ,1.5 30 II. {) 31 254. OUNCIL, IS 165 336 , 231 322 , 205 11 1 219 I. 1 219 . 1 262 426 ,1.6 82 .386 363 11 ), VIII. 10. 45 367 318 430 304 18 25 1.8 263 Honilnrsori V. .Tones Ikkf.(;i'i.arity, 12 24H V. McCormick Term's Notkk, 2 421 Mooilif Action, 2 '. 16 NicllolH COVKNANT, I. 9 142 — Penalty, 3 339 " 5 340 Perry ct al. Capias ad Satiskaciendum, 13 Ill V. Stepliens ct al Dower, II. 15 !"•» V. Torrance Use and Occipation, 1 4:4h V. Wallace New Trial, XI. 4 3-''' V. V. V. V. V. V.Wilde Interpleader, 5 24t Heney v. Simpson Assault and Batteky, 5 ^). Hennericy V. Gonld Fieri Facias, 3 214 Henry ct al. v. McDonell Kills of Exchange etc., II 83 Herslioy v. Warren Bond, II. 8 105 llervey, In re Attorney, 11(1), 8 65 V.Alexander Trespass, I. 4 427 V. French Toronto (C it v of), 1 426 V. Sherwood Sheriff, I. 13 392 Heward V. McDoiigaM Evidence, II. 3 194 Hibbert v. Johnston Commissionto examine witnesses, 9 120 • V. Practice, II. 15 365 Hillernan v. Thompson Goods sold, 9 227 Higgins V. Hogan Ferry, 6 213 liigson V. Tbompison (Ap.)CKSE 6 V. (yl^J.jPLEADING, 26 27 V. Ward (yl^j.)VARiANCE, 2 36 Hill V. JNIrNab el al Parliament, 6 333 227 26 333 431 401 ■ V. Stanton (iooDS sold, 5. Hill etal.v. Kyan (Ap.)VhE\msG, 21 Hincks v. Crooks et ai Parliament, 4... Hiscott V. Cox Trespass, II. 13 Hixon V. Hamilton Sheriff, V. 10.. Ilobson V. Shand Execution, 6 201 V. W. D. M. Fire Ins. Co.Demlrrers, 11 159 V. Insurance, 12, 13 243 Hodgkinson V. Donaldson Irregularity, 19 249 V. -Trespass, II. 14. 431 310 Hodgkinson ct al. v. Brown New Trial, III. 6 Hodgson V. Stevens Judgment as in case of Nonsuit, I. 13 Hogan V. Malone Account Stated, 2.. Hogg V. Mar! V. Vernon Writs of Trial etc., S Huntley V. Smith Escape, 11, 12, 13 Hurlburt v. Thomas Agreement, 2 Huron District Council v. Lon- ) District (now County) Council, 9, lion District Council J 10 ■ V. Statutes (Construction of) 4,5.. Hussey v. Link Arrest, IV. 3 Hutchins(m v. Munrc (j4/).)Bills of Exchange etc., 4 V. . . . .(yl^;.)PLEADING, () Hiitt V. (iillelaiid Replevin etc., 7 ■ V. Keith Practice, II. 2.S . . . V. Replevin etc., (>, 7. Huyck V. McDonald Covenant, I1( J), 3 Hyde v. Anger „ . . Indemnity Act, I V. Barnhart Insolvent, (J, 7, S 239, Hynes v. Burrowes District (now County) Council, ft rAsi KiO 39() 359 245 447 2()6 170 222 297 3S2 44t 392 UiS 144 55 410 142 145 350 248 140 3()6 25 130 73 3S,S 221 312 3()7 454 1S7 19 lfi4 407 53 4 24 381 3(Jfi 3S1 143 233 240 166 INGRAHAM V, Cunningham ..Arrest, I, 16 46 Ireland v. Guess et al MidlandDistrict TurnpikeTrust2, 296 V. Noble " « ^,296 Irving v. Merygold . . .Contract, 7 125 Ives V. Hitchcock Fences, 2 , 21.? i INDiHX TO THIS CASKS. dOS rASi II. 14 S.-S ItiO 3% 359 [T,8 2+5 447 2()6 170 , 16 222 1), 3 297 3S2 444 392 168 144 B 55 410 142 145 350 248 140 3{)6 25 ;.. 130 73 3SS ,7 221 312 3()7 454 IS7 19 Council, 9, lf)4 N of) 4,5.. 407 53 .,4 4 24 3S1 3(36 381 143 233 ....... /^'jt/j t>^^\f Council, 5 166 46 'ikeTuust2, 296 " ^, 296 125 213 Hitchcock New Trial, I. 5 Ives Limitations, (Statute of) IV. 3 Rol)insori Hail, I. 5 Ives et al. v. Calvin Ferry, 5 . JACKSON V. McDonald Libel and Slander, II. 9. V. Simpson Amendment, II. 34 Jackson et al. v. WootliulFe . . . .Infant, 1 Jact|iies V. Nicliolls Idem Sonans, I James v. iVIiils et al Malicious Aiikest, 12 .... , v. Notice to Produce, 2, 3, 4,, Jarvis v. Thompson Practice, II. 32 , V. VVashhurn Attorney, 11(2), I , Jarvis et al. v. Dickson Set off, 6 , Jetlbivy V. Lawicnce Costs, 1(1) 8 Jenkins V. Port Biawell HarborCo.PouT Bi;r\veli. Harbor Company. . v. Ruttan (^j[?) Guarantee, 2 .Tenkins ct al. v. McKenzie et al. Bills of Exchange etc., IV. 19. . . Jennings v. Dinginan Costs, 1(1), 13 V. Ready Arrest, II. 16 Jessup V. Fiaser Assessment of Damages, 5 Johnson v. Baldwin Interpleader, 2 v. Uiichanan Limitations, (Statute of) IV. 10 . V. Crew Lien, 1 V. Ourand Practice, II. 6 V. Kastman Libel and Slander, 111(2), 6 V. Hedtre " " IL 2 V. Hunter Practice, I. 17 V. McGillis Trespass, I. 20 V. Sniadis Capias ad Satisfaciendum, 8 V. Sparnnv New Trial, IX. 5 Johnson et ux v. McGill Dower, II. 16 .lohnston v. Boyle i-^P-) Evidence, 1 V. McDonald Libel and Slander, III(l), 3 V. ■ Pleading, Vlil. 3 Jones V. Ashcrol't et al Bills of Exchange etc., IV. 9. . . . V. Burns Cognovit, 6 V. V. V. V. V. V. V. V. V. V. Duir Nonsuit, 13, 14 Eraser Ferry, 3, 4 Glasford Magistrates, 2 Hamilton Pleading, II. 28 Ross et al Assault and Battery, 2 305 279 73 213 270 25 237 232 288 329 366 66 388 130 358 14 91 131 50 57 246 280 271 364 371 269 361 429 110 316 170 11 270 3.55 90 118 323 213 283 348 .Pleading, IV. 1. .Warrant, 1 . . . , Schoficid Sheriff, II. 24 Spence Husband and Wife, 3. . . . Stewart Libel and Slander, I. 10. Jones et al. v. O'Sulli /an etal. .Costs, 1(1), 10 ___ V. Russell Arbitration and Award, II. 5. V. Wing Costs, 1(1), 4 Jones t|. t. V. Chace Arrest of Judgment, 3. ..... . .._—_—.— V. Debt, 1 3.52 447 395 232 268 13] 31 130 54 151 & ^1 ~ rtiai"''^-^^'^ 604 INDEX TO THK CASUS. Jordan v. Mair Amenj^ment, III. 7 26 Joyco V. iMurniy el al Partnkrs i; re, 2 335 JuiiilC V. .[lul^O AuiilTUATION AM) AwAKI), Vl(2), G. H Juiliro of Niairara District, Iti re. .Attachment, I. 2 61 Justices of I'ruck District, In re. .Appeal, 6 28 Justices of Huron Dist. v. Huron District Council JNIandamus, 17 292 KALAR V. Cornwall et a\.(J]p.) Constahle Kay v. Cameron Paktnkus etc., 13. Kay et al. v. Ganii)le et al Di;r,i), H. 12 V. (irant Cognovit Keating v. Sinicoe Dist. Council. District (now CouNTy)CouNcii,, 3, Keefer v. Merrill et al Arrest, I. 41 Keegan v. Robinson Libel and Slamjer, II. (> V, " " 111(2), 4- Keclo V. Ridoul Deed, III. 20 Keeler V. Bn.iise Costs, [V(2), J Kcesor v. McMartin Sherut, III. 12 V. Hyatt Hills ok Exchange etc., V'I. 3. . . . V. Hleeker Practice, II. 33 Allen Ai"Fii)AviT,4« Costs, HI. A Lee Distress, II. 2 Kellogg et al Kondrew v. V. Kendrick v. V. V. Kennedy et al. v. Brodie Bail, I. S Kenny v. Armstrong Attorney, 11(1), 1 V. Cook et al New Tri a l. X. 30 . Maxwell Arrest of Juogment, 10. I'HAC TICE, I. 27 Kerr Kent V. Smnner ARiHTRArn).\ and Award, VIl(l), 1 Keri)y v. Caliill et al Trover, f. 6 V. Lawrence Frai ns (Statute of), I. .5 V. Coleman Bankrli'T etc., 1.5, Ki, 17 V. .Fennings Bills of Exchange etc., VIH. 4. . . V. Street etal {Ap.) '♦ 1... V. (^l;*.)JlTDGMENT V. (yl^>.) Verdict, I Ketc lum V, Crysler .Costs, 1(2), 3 • V. Jones et al Variance, !) V. iMcDoni'll et al Irre(;clarity, 21 . . V. Powell ArTORNEY, IV. 7. . Kctclium et al. v. Brady Bond, H. 1 V. Hamilton .. . .Practice, 1. 11.. . . V. Keeler Appearance, 7.. . . V. Readv Amendment, II. 6. Kill»(Hii V. Forester Assim psit, 1.1 V. Frauds (Statute ok), I. 4. V. Wallace Costs, 1(1), 2 Killens v. Street Identity, 3. Killichan v. Robertson Trespass, I. 7 . . Kiniliall V. Ripson Attachment, II. V. Smith Seuuctiun, 13.. . 6 336 153 6 163 49 269 271 155 137 397 97 366 18 136 162 54. 362 73 65 320 40 435 219 SO 101 3 16 37 132 441 249 70 104 .361 29 oo 58 219 130 232 427 62 387 INDEX TO THE CASES. 505 rial 26 .V1(2),G. H 61 28 292 6 336 153 6 ouNcii,, 3, 163 49 , 269 ),4. 271 155 137 397 VI. 3.... 97 366 18 136 162 \i 54. 362 73 65 , 320 J, VIl(l), 1 40 435 5 219 17 SO , V11I.4... 101 1... 3 16 37 132 441 249 70 104 361 29 no 58 4 219 130 427 62 3S7 King Kimble v. McGarry Notice op Action, 1 325 Claris Letters op Administration 267 360 240 52 V. Dunn Practice, I. 8 V. Keogh Insolvent etc., 16. V. Orr Arrest, III. 12... V. Magistrates, 8 284 V. Robins Judgment, 2 252 V. Such Costs, 1(1), 7 130 King's College v. Denison King's College, 1,2 26i ^— — V. Hawley et al.. Interlocutory Judgment, 2 244 V. Maybee Costs, II. 10 135 V. McDougall.... Limitations (Statute of). III. 10. 278 Kingsmill v. Gardiner et al Bond, II. 19 106 V Limits, II. 10 282 Kingston Bank Com. v. Dalton.. Arbitration and Award, VI(2),7. 41 Kingston (City of) v. Brown. . . .Process, 8 373 Kingston Marine Railway Co. ) Kingston Marine Railway Compa- v.Dunn ] ny, 1, 2, 3 262 — — — ^ V. Phillips Corporation, 5 128 Kirby v. Lewis et al Ferry, 2 213 V NewTrial,L 1 304 V. 1 Kirkendall v. Thomas .District (now County) Court, 14. V. ■ Replevin etc., 15 312 167 382 109 228 300 Kirkpatriuk v. Askew By laws, 1 Kissock V. Woodward Guarantee, 9 Kitson V. Short Money paid, 4 Knapp V. Forrest Usury, 4 439 Knowlson v. Conger New Trial, I. 18 307 Koylc V. Wilcox Bail, L 1 72 LACEY V. Spencer — ^— V. Lacroix, In re Ladd V. fiurvvell ct ul Lafl'erty v. M. Co'' Wentworth and Malton (4/'-) Lai V. Stall Lake v. Briley Lambert v. Elf arsh Lampman et al. v. Davis et al.. . Land v. Burn V. Maiden Land et al. v. Woodward Landrum v. McMartin... Lane v. Kingsmill v. V. Contract, 3 124 Covenant, 11(2), 10 145 Mandamus, 7 291 Sheriff, II. 17 394 V. McDonell V. Melville V. Mulhollandct al. 3s By-law, 1,2,3 Sunday, 1, 2, 3 Costs, 1(1), 20 Trespass, II. 31,32 Distress, I. 13, 16 Limitations (Statute or), III. 5., Sheriff, II. 18 Navigation, 5 |..< Demurrage, 2 Venditioni Exponas, 2 Accord and Satisfaction, 3 Escape, 14, 15 Sheriff, I. 7 Appearance, 4 Goods sold, 1 Fences, 1 5 415 132 534 162 277 396 303 158 442 13 187 391 28 225 212 l^jammm 506 INDEX TO THE CASES. PASB Lane v. OlFicers of the Otdivdnce.(Ap.) Jurisdiction 16 V. Stennett Limitations (Statute of), L -t.. .. Lane et al. v. Jarvis New Trial, X. 31 V. Small Limitations (Statute of), IV. 8... 272 320 279 130 69 70 290 15 91 303 Lang V. Hall Costs, 1(1), 5 Langle v. Fettcrly Attorney, IIL 17 Lapenotiere, In re " IV. 3 Lapointe v. Stennett Malicious Prosecution, 1 Large v. Perkins Account stated, 5 Larkin v. Ward Bills of Exchange etc., IV. 22... Lamed v. McRae Navigation, 1, 2 V. Pleading, IV. 2 352 Latham v. Norton Bills of Exchange etc., V. 15. . . . 93 Laverty v. Patterson Judgment. 10 252 Lawrence v. Tindal Amendment, II. 11 23 V. Woodriffe... .(4/^.) Municipal Council, 2 20 22 256 104 Lawrence et al V. Harday Amendment, II. 7 iN case of Nonsuit, n.2 V. Stevenson Bond, II. 4 Leach v. Dulmage Judgment as Leader v. Smith . Leahy v. Loucks Similiter, 1. Lee v. McDonald Joint Stock Company, 3. V. Purdy Pleading, II. 16 V. Rapelje Sheriff, III. 14 Lee et al. v. McClure Arrest, I. 10 . Amendment, II. 21 24 406 250 346 398 46 Leeming et al. v. Hagcrman.. ..Poundage etc., 2 359 Leggatt V. Marmott Indorsement, I. 9 237 Leitli V. Willis Spirituous Liquors, 1 407 Le Mesurier v. Smith Limits, II. 12 282 Lemesurier v. Willard Onus Probandi, 4 331 Le Mesurier et al. v. Sherwood .Pleading, I. 17 343 Lemoine v. Raymond Amendment, I. 8 21 v. Demurrers, 5 151 ' v. Practice, I. 16 361 L'Esperance v. Clark Money had and received. 8 298 v. Diicheno Seduction, 10 387 Leonard v. Atche?on ct al Bills or Exchange etc., I. 15.... 83 v. " VIII. 8,9.. 101 v. Buchanan Covenant, 11(2), 19 146 v. De Injuria, 4 156 v. Glondennian Attorney, 11(3), 4 67 v. McBridc Limits, II. 6 281 AT. Meritt , . . . Consolidating Actions 123 V. LiMiTs,n.3 281 V. Pawling New Trial, IV. 3. 311 Le Penotiere, In re Mandamus, 24 293 Leslie v. Davidson Nolle Prosequi, 2 .322 v. Leahy Bond, II. 10 105 liewis v. Brooks (.7;).)Evii)ence, 10 12 v. i'fp-) Surrender, 1,2 34 v. (Jraiit Limits, IL 2 281 % INDEX TO THE CASES. 507 16 320 ,IV. 8... 279 130 69 70 290 15 IV. 22... 91 303 352 252 20 22 ' Nonsuit, 256 104. 24 406 250 346 398 46 359 237 407 282 331 343 21 151 361 0. 8 298 387 , I. 15.... 83 an. 8,9.. 101 146 156 67 281 123 281 311 293 322 105 12 34 281 Lewis V. Kirhy Customs Acts, 1. V. McDonald Bail, I. 6 Ley V. Madill Case (Action on the), r> Liddell v. Munro Covenant, II(l), 1 Lindsay et al. v. McFurlane . . . .Mesne Profits, 2 Linfoot V. O'Neill Costs, 1(3), 6 Linford v. Musgrove Arbitration and Award, VI(2), 15 Linley v. Cheesenian Bail, I. 4 Lister V. Burnham Principal and Agent, 3 V.Warren Assumpsit, I. 7 V. " II.6 Little et al. v. Keating Insolvent etc., 1,2 Lock et al. v. Reid Guarantee, 4 Locke v. Wilson Case (Action on the), 7 Lockhart v. Dixon Indemnity Act, 2 v. Milne New Trial, VIII. 15 Lockman v. Nesse Dower, II. 7 V. « m.2 Lodor v. Heathcote Cognovit, 4 Logan V. Secord Interest, 1 —— .- v.The Cobourg Harbor Co.CoBouRG Harbor Company. London Board of Police v. Talbot.LoNDON (Town of), 2 •■ V. Pleading, II. 20 Long V.Lee « VIII. 4 Longworth v. Hyndman " I. 1 V. McKay et al General Issue, 1 . Loomia et al. v. Ballard et al. . . .Partners, 15, 16 Loring, In re Attorney, 1.3 Leasing v. Horned Arbitration and Award, VI(2), 10 — — V. —^—~ Venue, 1 Lount V. Smith Pleading, VIIL 6 - V. Repleader Love V. Armour Notice of Trial, 5 Lowetal. v. Ottawa Dist. Council.DisTRicT (now County) Council, 11 Lucas V. Peatman Record(Nisi Prius), 12 Lucy V. Smith (i4/).)MALicious Prosecution Lunn V. Turner et al Trfsi-ass, II. 28. Lusty V. Magrath Malicious Prosecution, 3 V. Van Volkenhurgh Arbitration and Award, VIII. 6 Lyman v. Cotter Judgment of Non Pros, 4 — — V. Lovejoy et al " Lyman etal. v. Binge Bail, II. 6 V. Boulton. . .(j?/>.)Bills of Exchange etc., 12 V. Bank U. C. (j1;).)Assumpsit, 1,2 V. (il/>.)BANK OF Upper Canada V. Vandecar Insolvent etc., 17 Lymburner v. Norton Arbitration and Award, VI(2), 17 Lynden v. King Magistrates, 5 Lyons, Ex parte Attorney, 1. 6 , In re Deed, III. 9 — — V. Kelly Malicious Arrest, 8, 9 Lyster v. Boulton Affidavit, 11 149 73 114 143 295 133 43 72 370 58 60 236 227 115 233 316 169 170 118 243 117 282 347 355 340 225 336 64 42 443 356 380 327 164 378 19 434 290 44 260 260 74 5 2 3 240 63 284 64 154 288 18 T^Wf^"^ 508 INDEX TO THE CASES). PAUK 333 Lyster v. Boulton Parliament, 7 V. Practice, II. 44 368 MACARA, In re Attorney, IV. 1 Macaulay v. McFarlane Bills op Exchange etc., II. 4 Macdonald v. Monk General Issue, 3 V. Weeks et al Recognizance, 5 Macfarlane v. Keezar ct nl De Injuria, 6 Mackinnon v. Johnston Practice, I. 7 Mackiem v. Dettrick et al New Trial, II. 21 Macklem et al. v. McMicking . .Venire de Novo, 2 Madden v. Farley Assault and Battery, 9 V. Shewer Notice of Action, 2 Maddock V. Corbet Judgment as in case op Nonsuit, IV. 5 V. Glass New Trial, IV. 10 V. Stock Pleading, II. 34 Madill V. Chilvers Costs, VIII. 5 ;uire V. Post Distress, II. 3 Mahoney v. Zwick Costs, 1(3), 4 Mair v. Holton Principal and Agent, 5. V. Receipt, 2 V. Jones Bills of Exchange etc., V. 31.. .. V. McLean " VI. 4.... Maitland v. Secord Fieri Facias, 8 — ^— V. Payment, 2 Major q. t. v. Reynolds Maintenance (Statute of), 8 Malcolm v. Rapelje Sheriff, III. 1 Malloch V. Anderson Highway, (i. V. Graham Libel and Slander, I. 6 V. Grier Costs, VIII. 8 V. Johnston « 1(3), 2 V. Morris Attachment, II. 10 •^— V. Jury, 9 ■ V. Norton Bills op Exchange etc., V -^— — V. Patterson Bond, I. 8 36. Malone v. Handay Insolvent etc., 1 1, 1.5 Manley v. Corry Libel and Slander, III(1),4, 5. Manners v. Boulton Malicious Arrest, 23 V. Boulton et al New Trial, XI. 7 V, Clark Arbitration and Award, 1. 2.. Manning v. Proctor et al Bail, II. 16, 17 Marcy v. Butler Attachment, II. 3 V. Sheriff, II. 11 March v. Port Hope Harbor Co. Corporation, 6 Markland et al. v. Bartlet Statutes (Construction of), 1 . . . V. Dalton Corporation, 2 Marsh V. Boulton Magistrates, 10 V. Notice of Action, 10 V. Myers Trespass, II. 19 Marter V. Digby Libel and Slander, II(3) Martin v. Corbett New Trial, VIII. 14 69 84 226 377 1.57 360 309 443 56 325 259 311 349 139 162 133 .371 376 95 97 214 337 285 395 231 268 140 132 62 261 96 103 240 270 290 321 30 75 62 394 129 407 128 284 335 432 269 315 r PAOK 333 368 69 II. 4. 84. 226 377 157 360 309 443 56 325 Nonsuit, 259 311 349 139 162 133 371 376 V. 31 95 VI. 4. . . . 97 214 337 )f),8 285 395 231 268 140 132 62 261 V.36.... 96 103 240 ),4,5 270 290 321 ,1.2 30 75 62 394 129 of), 1... 407 128 284 335 432 269 Martin INDEX TO THE CASES. V. Gwynne Writs op Trial etc., 7.. V. Woods Arrest of Judgment, 2. V. Covenant, II(1),2 Masecar v. Chambers et al Arbitration and Award, II. 7. . . . V- " « IV(1),6. V « « VI(1), 5. V •• u VIII. 9.. Massoa v. Hill et al Executor etc. III. 14 V Nolle Prosequi, 3 V. NoN Assumpsit (Plea of) Masson et ai. v. The Queen,. ..Practice, II. 3 Mastin V. Garrovv Judgment as in case of Nonsuit, IV.l Mathevvson v. Brouse Bills of Exchange etc., VIII. 8. . V. Carman (D.). ... « VI. 6.. . . V. .... Set off, 10 V. Carman (P.). . . .Bills op Exchange etc., III. 14. . . — — V. Glass Judgment as in case of Nonsuit, IV. 2 Mathie v. Lewis Practice, II. 18 Mattice v. Farrct al Trespass, II. 4 Maulsonv. The Com. Bank, M.D.Bankrupt etc., 6, 7 Maxwell V. Ransom Amendment, II. 31 V. Pleading, V. 4 McAnany V. Meyers " I. 11 McArthur v. Walklev et al Distress, I. 9 V. '■ " 1.14 V. Winslow Payment, 10. . . , V. Pleading, II. 40. McBean et al. v. Campbell Malicious Arrest, 1 V. " 20 McBride et al. v. Parnell ...... Executor etc., I. 6 McCague v. Clothier Judgment as in case op Nonsuit, I. 11 V. Meighan et al Arrest, III. 1 McCarthy v. Low Fieri Facias, 4 McClellan et ux. v. Meggatt et alDowER, II. 5 V. « IL 17 McClenaghan v. Barker Distress, I. 3 McColium V. Church Bills of Exchange etc., VII. 12. V. Davis (4?^)CovENANT, 2 V. (4p.)Patent V. (4p.)Pleading, 8 V. Jones Bills of Exchange, I. 17 McCormick v. Berczy Limitations (Statute of), III. 7. . McCrae v. Hamilton Amendment, II. 10 V. Sheriff, V. 9 V. Osborne et al Notice to Produce, 5 V. Reynolds Usury, 5. McCue V. Todd Arrest, IV. 8 McCulloch V. Jarvis et a\...(Ap.)Ti.^Amtic, 11 V. ...(4p.)Profert 509 PAGE 454 53 143 32 35 40 45 208 222 322 363 258 99 97 389 87 258 365 430 79 25 353 342 161 162 338 350 287 289 204 255 50 214 169 170 161 100 7 22 24 83 278 23 401 329 439 52 25 29 510 INUKX TO TMK t'ASEifi, McCunifTe v. Allan et al De Injuria, 5 , V. PUACTICE, I. 31 McDonald V. Brennan Usi: and Occupation, i TMir. 36.". V. Cameron Larckny V. New Triai,, fV. 1 .... V. Notice of Action, 8. V.Clarke Costs, [V.(2), 2 V. DeTuylo New Trial, X. IS v.Mayetal Bond, 11. 19, 20 V. Verdict, ^'^ V. Glass (y1/j.)FRAuos (Statute of), I .... V. McDondl et al Executor etc., I. 10 V. Mcintosh ...(yl;).)DowER, 2, .'{ ». V. ...(ylp.)LiMiT.vTioNS (Statute of), 3 V. Switzsinger Bond. I. 10 , McDonald et al. v. Amin Arrest, III. 3 — — — — V.Dickenson ...Bankrupt etc., 1 •••••••••••• McDonell v. Cook Monev had and received, 11... V. Rutter Bail, III. 13 McDonell et al. v. Lawry Bills of Exchange etc., II. 5.. • V. Bank of U. C.Bank of Upper Canada, 3, 4.... , V. Trover, I. 12 McDonell, q. t. v. Kirkpatrick ...Usury, 2 McDonnell v. Kelly Arrest, I. 1.") McDougal V. Camp Arbitration and Award, V. 5. McDongall v. Young Bond, II. 15 McElderry v. Baldwin Army. 1 McEwen V. Stoneburne Fieri Facias, 10 McFarlane v. Brown Amendment, II. 24 .1 V. Derbishirc Foreign Judgment, 1,2 . V. McDoiigall Street Surveyor McFattridge v. Talbert et al Covenant, I. 10 McFaul V. Mont. Inland In.s. Co.Insurance, 3,4- 241, McGann v. Howison Practice, II. 22,23 McGill V. Proudfoot Arbitration and Award, I. 7, 8.... v. ^ "^ ^ ^ '• 1V(1),2.. StuU Costs, 1(2), 2. McGill et al. v. Bell et al Executor etc., II. 3.. McGillis v. McDonald Sheriff's Sale, 8 — — V. McMartin Leave and License, 1. . V. New Assignment, 2... McGillivray v. Keefer Bills of Exchange etc. I. V. Payment, 8 , McGilvray et ux. v. McDonnell. .Pleading, II. 1 , McGowan v. Gilchrist Sheriff, II McGrath V. Cox Nonsuit, IG , 0, •••••••• McGregor V. Scott Costs, IVH), 1,3 .1 V. White Division Court, 1 , McGufiin v. Cayley Master and Servant, 4. McGuire v. Donaldson ., Costs, VII. 4 , V. Pringle Limits, II. 8 , Mcintosh V. Detneray Arrest, IV. 13 , 438 2fi4 311 32.5 137 3 IP 106 446 13 205 10 18 104 .51 78 299 77 84 78 436 439 46 38 106 45 214 24 13 414 143 242 365 30 34 132 205 404 266 303 82 338 343 393 323 136 168 295 138 281 5.1 i * ; PAOII 156 • •••••••••••••• :f\ft» . 4-38 264. 311 • •••■«••■•••!•■ '.f 'Wit 137 310 106 Ufi 1 13 205 10 of), 3 18 104. 51 78 ED, 11 299 77 ;., II. 5 84 L,3, 4 78 436 439 46 ID, V. 5 38 106 45 , 214 24 t 13 414 143 241, 242 365 ID, I. 7, 8.... 30 1V(1),2.. 34 132 205 404 ... 266 303 338 343 393 323 136 168 4 295 138 281 5.T INDEX TO THE CASES. 51 1 Mcintosh V. Demeiay Malicious Arrest, 15 2 89 V. Jarvis et al. ...(vl/).)EsT0PPEL, 3 n V. ...(il/>.)PLEADING, 23 27 V. ...(il;>.)SHERiFF, 8, 9 10 32, 33 V. McKenzie, In re ...Attorney, 1.2 64 V. Vansteenburg ct a\..{Ap.) Notice of Action 22 Mcliityre v. Hutson (^^j.)Arrest, 2 2 V. Skead (^2J.)Pleading, 16 25 V. Siithciiand et al Capias au Satisfaciendum, 7 110 V. TheCityofKingstonLEASE, II. 3,4, 5 266 M'lver et al. v. M'Farlane Bills of Exchange etc., II. 1 83 McKay v. Cameron Bailment, 3 78 V. Lockhart Carrier, 3 Ill V.Lyons New Trial, X. 22 319 McKee v. Huron Dist. Council...DisTRicT (now County) Council, 7. 164. V. Irvvine Costs, 1(3), 3 133 McKenxiev. Bussell Absconding Debtor, 7 10 V.Campbell Toronto (City of), 2 426 V. Gibson Amendment, II. 30 25 V. (ylj).)ARREST, 1 2 V. (-4^.)Pleading, 4, 5 24 V. Reid Arrest, I. 34 48 McKenzie et al. v. Kirby Customs Acts, '3, 4 150 v. McBean Goods sold, 3 226 V. Macnab Bail, I. 3 72 V. Mewbuni ...Magistrates, 3 283 V. ...Notice OF Action, 5 325 t. V. Miller Maintenance (Statute of), 7 285 Arnold Deed, II. 9 152 Burrows Covenant, 11(2), 13 145 Onus Probandi, 3 .331 .Title,4 423 McKenzie, q, McKinnon v. V. V. V. V.Johnston Irregularity, 5 247 McKnight V. Scott Abatement, 6 9 M'Koane V. Fothergill Parliament, 5 333 McLachlan, In re Costs, VII. 6 138 McLiiren v. Cook et a! Water, 2, 6 448 V. Muirheadet al New Trial, X. 27 319 V. Witness, 14 452 V.Rice Trespass, I. 17 429 M'Lain v. Ainslie Seduction, 6 386 McLaughlin v. Wismer Arrest, I. 21 47 McLean V. Cumming Affidavit,9 18 V. Cognovit, 5 118 Hall Arrest, IV. 6 52 Knox Process, 5 373 Laidlaw Dower, I. 1 169 V. V. V. V. McDonald Irregularity, 10 248 V. McDonell Evidence, IV. 4 196 V. Nceson et al Amendment, II. 12.... 23 V. Record (Nisi Prius), 2 377 V. Shaver etal Bond, I. 7 103 512 McLean v. Tiiisloy . V. . INDEX TO THE CASES. .Penalty, 4- .Profaut, 1 McLellan vi al. v. Smitli Judgment AS in case of Nonsuit, 1. 7 McLellan et ux. v. JMcggott et al. Dower, I. 2 . _ V. Estate, 9, 10 McL coil V. Bell Assault and Battery, 4 V. Boulton Attorney, 11(1), 11 V. - • V. .New Trial, X. 23. .Sheriff, V. 17. V. Ehcrts ot al Demurrers, 15 V. .[ackKori Request, 2 V. Tiiisloy Debt, 3, 4 V. Torrance Commission to examine witnesses, 10, 11 V. Costs, VII. 5 Truax Infant, 5. McLcvy V, Vanilccar Arbitration and Award, VIII. 4... McMahon v. Campbell New Trial, I. 12 . V. ColVoe Assumpsit, I. 2 V. IngersoU Indemnity Bond, 10 . V. Sheriff, IV. 2 V. Masters ct al Limits, II. 14 — V. Skinner Seduction, 12 *. McMan v. Patterson et al Process, 6 McManmon V. McElderry Arbitration and Award, IV(2), 4 McMann v. Paterson et al Process, (i McMartin v. Graham et al Sheriff, V. 19,20 V. V. V. V. II. V. .Verdict, 6. INIcKinnon Bail, II. 6.... McPherson Sheriff, I. G. Powell Jury, 6 Powell etal « 7 Sheriff, I. 5, V. SpalToril Attorney, III. 3 V. Tmveler New Trial, X. 17 McMickiiig V. Spencer Costs, III. 6 McMillan V. Fjiiifield New Trial, X. 11 V. Ferguyson Costs, II. 9 V. Notice of Trial, 4.... V. Miller Arrest of Judgment, McMulIen, In re Arbitration and Award, 111(2), 8. McMurray V. Orr Costs, 1(1), 22 McNab V. Adanison Case (Action on the), 9 V. Easement,5 • V. (4?'.)Issirf. • V. Bidwell etal Parliament, 1 11. V. Dunlop etal., In re.. ..Landlord and Tenant, II. 5. V. Magrath Libel and Slander, I. 8 V. " 111(2), 1. V. McDonell Pleading, II. 15 V. McFarlane Covenant, I. 8 V. McGill Contract, 14 PAOB 340 373 255 169 190 55 66 319 402 159 282 151 120 138 237 44 306 58 235 399 282 387 373 36 373 402 445 74 391 260 261 391 68 318 136 318 135 327 54 34 132 115 172 15 233 264 268 271 340 142 126 INDEX TO THK CASES. 513 PAflK 340 373 c)NsuiT,I.7 255 169 190 4 55 66 319 402 159 282 151 WITNESSES, 120 138 237 iD,Vni.4... *44 306 58 235 399 282 387 373 .RD, iv(2J,4 36 373 402 445 74 391 260 261 391 68 318 136 318 135 327 1 54 D, 111(2), 8. 34 132 9 115 172 15 233 II. 5 264 , 268 I), 1 271 340 142 126 McN; lb V. Reeves Costs, 1(3), 8 134 V. Stinson Evidence, VII. 2 " 198 V. Wagstaff Bills of Exchange etc., VIII.' s"! 101 V. Nonsuit, 15 323 McNair v. Sheldon Commissiontoexaminewitnesse8,4 119 V. — Judgment as in case op Nonsuit, I. 18 256 V. Venue, 5 444 McNnirn ct al., In re Mandamus, 21 293 McNally v. Stevens Scire Facias, 4 385 MrNaught v. Allen (^j?.) Libel, 2 17 McNeil v. McNeil Practice, II. 9 364 v. Train Surrender, 4 417 V. Trespass, I. 18 429 V. « 11.29,30 434 ■ V. Verdict, 4 446 McNicol V. McEvven Partners etc., 3 335 McPhedran v. Lusher Foreign Judgment, 1 216 McPherson v. Campbell Insolvent etc., 20 241 V.Dickson Interlocutory Judgment, 10, 11... 245 McPherson et al. V. Dickson (4p.)Pleading, 3 24 V. Hamilton. ...Escape, 18 188 V. ...Nonsuit, 8 323 V. McMillan.. ..Foreign Judgment, 10, 11, 12 217 v.Mosier(bailof)BAiL, I. 12 73 Hamilton False Return, 12 212 .... 72 Mead ct al. v. V. Hendry Auction and Auctioneer, 7 Mearns v. Gilbertson Costs, 1(1), 17 Meiiilian v. Reynolds Limits, I. 3 Meitthan et al. v. Brown Bail, III. 1 , V. Piiider Absconding Debtor, 27 , 131 280 76 12 Meredith v. Culver et al Bills of Exchange etc., V. 9 93 Merritt v. Ives et al Carrier, 4 Ill Mervvin et al. v. Gates (exor'.; oi )!'ills of Exchange etc., VI. 2 96 Metcalfe v. McKenzie et al Administration Bond, 1, 2, 3, 4 .... 17 V. Amendment, II. 38 25 Meyers v. Burke Limitations (Statute of), IV. 2... '279 V. Marsh .Fixtures, 1 215 V. Trespass, I. 9 427 Michie v. Allen Arrest, II. 7 49 Michigan Bank v. Gray et al Bills of Exchange etc., III. 11.... 87 v. Witness, 12 452 Micklejohn v. Holmes Security for Costs, 2 386 Milburn v. Milburn Lien, 2 272 V. Tender, 2 421 Miles V. Harvvood Payment into Court, 1 338 Millard v. Kirkpatrick Pleading, VIII. 5 356 Miller v. Ferrie Bills of Exchange etc., VI. 10.... 97 V. Hamilton Bond, II. 6 105 V. Munro Money paid, 2 300 ' V. Practice, 1.26 362 V. ■ Set off, 4 388 3t 514 INUKX TO 1 .iSES. Miller V. Pnlmer etal F^vidknce, I. 1. .Cask (Actidx on thk), '.i. Mills V. .laiiios <'i,KKK OK THE Ckown and Plkas, 1, V. jNIoiiL'tT Notice of Action, U V. Seolt Patent, '2,3 Miliniiie v. Hart Rkim.evin etc., 9 , Mink V. .liiivis i^h'-) SiiEuiKr, 7 Mitcliull V. Dcliif« Assault and Uatteuv, 7 V.J L'iiiiiii<; s Account stated, S. V. Linton (Covenant, ![(-), IS V. Tli(ini|)fi()u FoKciULE Emhy etc., 2. Mittk'l>LM[j;er v. Uy Rideau Canal, 2. -v. Alfiritt ft ill PuoniiiiTioN, 2 , V. WhitelK'iul ct al.. Practice, II. S MittlobertrL-rctal. v. Clarke Auue' T[. 3 , 1 V. iMcrrilt etal. Ass r, I. , . V. Tlie «. A. Fire and Life Assurance Co.Insurance, 5, 6 Moflat V. Macrae Auuest OE Judgment, 1 V. " lU . ■ V. Pleading, II. 2 Mofl'att V. Vance Bills of Exchange etc., V. 7. MolFutt et al. v. Loiicks Over . V. Witness, 4-. * ••• •••••• ••• ■ Molloy V. Stansfielcl New Trial, II. 23.... Moiiafilian v. Forgusson et al Common Schools, 2. V. Fraser (4/^.) Pleading, 1 Monalian v. Foley etal Trespass,!, l-l Monk V. Capeinian New Trial, VIII. 16. Montlbrton v. Pomlit Keceii'T, 1 . V. Montlbrton et al ...Pleading, II. 31 Montgomery v. Howland Limits, I. 2 V. " II. 4 V. Robinet Insolvent etc., 9 Montreal Hank See Hank of INIontreal. Moodie V. Hradshaw et al New Trial, I. 1-i Moore v. Holditcli et al (jEneral Issue, 4< V. JauicH Affidavit, 1 V. Malcolm Action, 3 Moore et al. v. Hicks. New Trial, VIII. 7 Moran v. Maloy Insolvent etc., 5 Morden v. Morgan Attorney-, HI. 11 Morgan v. Mosier et al Bail, III. 10 Morgan et al. v. Simpson et al... Boundary Line Commissioners, 4-.. Morley et al. v. Nicliols Pleading, X. 5 , Morris v. Randall Costs, II. ■i Morris etal. V. Graham etal Sheriff, V. 15 Morrison v. Loudon Attachment, II. 3 (note) Morton V. Benjamin (yl^).)NoTiCE, 3 • V. (.-7/j.) Principal and Surktv. 1, 2 V. Thompson New Trial, II. 13. V. Pleading, II. 8. 193 114. 116 32 (J 337 382 32 ^)6 15 146 2l() 3S4. 373 3t)4 +!) 59 242 53 54 313 92 232 451 310 121 23 428 31G 376 34S 280 281 240 306 226 . 18 . 16 315 , 239 , 69 , 76 108 356 134 402 62 29 308 345 i INUEX TO THE CASKS. rAsa 11)3 114. jPlkas, 1. IIG 3^(» :«7 382 32 56 15 U6 21G 3S1. 373 3t)-i +i) 59 242 53 54, 313 7 92 232 451 310 121 23 428 31(i 376 34S 2S0 281 240 306 226 IS 16 • •••••••• oil) 239 69 76 108 356 134 402 62 no 29 308 345 A15 TAni Morton etnl. v. McDonell Trover, IT. 5 4,37 Mosior V. McCaiin Absconding Dkbtor, 3 ]0 A1„!i V. Grny ot al Sheriff, II. 20 39^, V. Loucks JtDGMENT, 22 254 Mouc'c V. Sunvart Bond, I. 4 V. JMaynard Jlrv, 2, 3. 102 260 Moiilsdu V. Kyio Verdict, 14 446 Mouat V. Fiir.slii'c Absconding Debtor, 19 11 V. Swit/tT it al Principal AND Slretv,4 372 Miu'kioroy v. JJurnliain Seduction, 9 387 Mtiir V. Jones Biles of F..\( iiange etc., V^ 31 95 MuiiliL-ail V. iMcDiiugallutal New Trial, 11. 5 307 liiiirle Evidence, I. 6 193 — — Tender, 3 421 Mullen ci al. v. Kerr Goods sold, 4 226 Mullens v. Arnistronir Absconding Debtor, 18 11 Municipal Council of Norlliuin- l)erland and Durham v. Bull (I al (-^i' ) Municipal Council, 5 21 Municipal Council of Lincoln, Welland and Haldimand v. Tlionipson ot al (Ap.)VLEAmNG, 34 29 INIuntion v. Hamilton Escape, 10 187 Muit:ro\v v. 1 __ V V. 17. Murney v. Heron Demurrers, 4 Murphy V. Uoulton Affidavit, S (note),.., V. Buntetal IIusba.nd and Wife, 4 . V. Misnomer ••••••• V. Burnham Practice, I. 22 V. Frasor New Trial, VIII. 4. 188 158 18 232 297 362 314 99 95 94 427 Murray v. Millar Bills of Exchange etc., VII. 9., Muttleburv v. Hornby et al " V. 27. Myers V. Cornell " . V.20. V. Howard ct al Trespass, I. 2 , V. Rathburn Amendment, I. 5 21 V. Bail, II. 3 74 - V. VVilkiiis Bills of Exchange etc., I. 10, 11.. 82 NAGLE V. Kilts Seal 386 Nassau v. O'Reillv Bills of Exchange etc., III. 24.... 85 Necsonv. Eastwood Deed, HI. 17,18 155 Nellis V. Wilkes et al Case (Action on the), 4 114 Nelson et al. v. McDoncU Evidence, IV. 3 196 Neven v. Butcliart Arrest, I. 5 46 Nevills V. "Wilcox New Trial, X. 4 317 Ncvils V. Hcrvey Particulars of Demand, 8 334 New V. Burn et al Principal and Agent, 1 Newcastle Dlst.,In re Slieriff of.. .Mandamus, 9 ••• • Newborn v. Lawrence Bills of Exchange etc., I. 7, 8. Newkirk v. Payne General Issue, 2 Niagara Dist. Court, In re Judge of Attachment, I. 2 Niagara Falls Uoad Co. v. Benson(>l;5.) Joint Stock Companv no 291 S2 225 61 16 iSS!^" 516 INDEX TO THE CASES. ifi NipgaraFallsRoa(lCo.v.Haniilton(^/).) Joint Stock Company. Niagara Harbor ami Dock Co. v. Smith Absconding Debtoh, 22. Nichall V. Cartwriirlit et al Judgment, 5 Nichall et al. v. Williams Executor etc., II. 2 Nichol V. McKelvcy- Acpearance, (5 V. Mooney et al Distress, II. 7 Nicholls V. Cotter " 1.12 V. IMcGill Assumpsit, II. 7 Nichols V. King et al Contract, 10 V. Ravnes Bills of Exchange etc., VIII. 3.., Nicholson v. Allen Costs, III. 5 Nicbolson dem. Spaffonl v. Roe..AFFiDAViT,2 , , . V. F'lDENcr "''^. 1 , Nickall V. Crawford f ieri F; •^ ,i Nicoll^ V. Madill Bond, I. 1 V. Maintenance (Statute of), 19. Noad et al. v. Brown i^'ip-) Pleading, 9. Nordheimer et al. v. O'Reilly Bills of Ej^change etc., IV. 17... Northcote v, Hodder Writs of Trial etc., 12 Norton v. Latham Arrest, I. 43 V. Post Foreign Judgment, 4 Notman v. Rapelje Practice Court Nugent V. Campbell Covenant, 11(2), 15. GATES V. Cameron Fixtures, 3 V. Trover, I. 13 O'Brien V. Harrahy Pleading, II. 12 O'Connor v. Anon Arrest, IV. 4 V. Clements et al District (now County) Council, 8 V. Hamilton Sheriff, 1.2 V. " HI. 19 Ogilvie et al. v. K;elly Arrest, I. 12, 13, 14 O'Grady v. McDonell Arbitration and Award, VI(2), 9. O'Hara v. Foley Tolls, 1 Oliphant v. McGinn Judgment, 7 Oliver v. Stephens et al New Trial, X. 12 O'Neill V. Barnhart Costs, II. 8 V. Hamilton Sheriff, I. 8, 9, 10 ■ . V. Pcrrin Bills of Exchange etc.. III. 2 V. " VIII. 2... O'Neill et aK v. Leight Master and Servant, 5 . V. Onus Probandi, 2 V. Practice, I. 18 O'Reilly, In re Attorney, 11(3), 8. ' V. Armstrong " 11(2), 4. I V. Moodie Escape, 8, 9 Ordnance Department v. JohnsonORDNANCE Department, 2. Orr V. Stabback Notice of Trial, 16 — V. Practice, II. 13 Orser V. McMichael ot al Trespass, II. 3 — — V. Stickler New Trial, XI. 1 PAOK 16 12 252 205 29 163 162 68 125 101 136 18 198 214 102 286 25 91 4.54 49 216 369 145 215 436 345 52 164 390 398 46 42 425 252 318 134 391 85 100 295 331 361 67 66 187 332 328 364 429 320 PAQS IVNT 16 12 252 205 29 1«3 162 68 125 p VIII. 3... 101 136 18 198 21-1. 102 )f),19 286 25 , IV. 17.... 91 454 49 216 145 ! 215 , +36 , 345 52 Council, 8 164 390 398 46 D, VI(2), 9. 42 425 252 318 134 391 ,111.2 85 VIII. 2... 100 295 331 , 361 67 , 66 187 2 332 , 328 364 , 429 , 320 INDEX TO THK C\SKS. WJf \ Osman v. Gander Boundary Line CoMMissiONERr; 3.. 108 Ostroni V. O'Connor Pleading, VII. 1 354 V. Trespass, II. 5 430 Oswald V. Mowhuin ....' Malicious Prosecution, 4 290 Ottawa Dist. Council v. Low etal.DisTRicT (now County) Council, 1 163 Outwater v. Dalbe Appeal, 4 28 V. Sheriff, in. 28 398 Oviatt V. Bell False Imprisonment, 6 209 PACE V. Meyers (71;j.)Practice, 1, 2 23 Page V. Pliclan Judgment, IS 253 Palmer V. McDonald Practice. II. 14 364 Pardow V. Beatty New Trial, VIII. 13 315 Parent V. McMalion Irregularity, 8 248 Parke V. Anderson Testatum Act, 1 422 V.Meade " 1 422 Parke et al. v. Davis et al Carrier, 18, 19 113 Parker V. Diitcher Guarantee, 1,2 227 Parker et al. v. Rolicrts Cognovit, 9, 10, 11. 12 118 Passmore v. Harris Commissiontoexaminewitnesses13 120 Paterson V. Black Carrier, 11 112 V. Howi.son et al Set off, 14 389 V. M'Kay Scire Facias, 1 385 Patterson v. Attriil et al Stay of Proceedings, 1 413 V. Calvanetal Capias ad Respondendum, 4 109 V. Miller, In re Attorney, 11(3), 1 66 V. Prince Agreement, 3 19 V. Reardon Mesne Profits, 3 295 Williams Costs, 1(3), 1 133 M'Lcan New Trial, VII. 2 314 .Verdict, 10 .'. 445 90 Patton V. Payne v. Peel v. Kinfismill Bills of Exchange etc., IV. 10.... Pegg v. Pegs Costs, VIII. 11 140 Peltonv. Wells (Administrator oQSheriff, IL 6 393 Pennetal. v. Ruttan New Trial, V. 3 312 V. " VII. 1 313 Penniinan v. Wince Judgment asincaseofNonsuit,II.1 256 Perkins v. Connolly Capias ad Satisfaciendum, 3 110 v. O'Connolly Insolvent etc., 14 , V. Scott Assessment of Damages, 4 Perrin v. Joyce Malicious Arrest, 17 Perrin et al. v. Carson Costs, 1(1)12 V. Eaglesum Practice, II. 40 240 56 289 131 367 Perryv.B.A.FireandLifeAss.Co.lNSURANCE, 8 242 V. Grover Amendment, II. 37 25 V. Demurrers, 6 15S .^— V. Lawless Evidence, V.5 197 V. Powell (il;>.)GRANT, 1, 2 13 V. Richmond Judgment non obstante veredicto,1 259 V. Pleading, VIIL 7 356 Perry et al. v. Newcastle District Insurance Company... (4^0^^^"'*^''"^*' "• V. - (Ap.)MoiiKY Paid. 15 19 518 INDEX TO THK CASES. J! !l Peters v. London Board of Police.By-LAAVS, 2 V. ■ LoMWN (Town oi'), 1.. Petric V. Tayloiir Nkw Tiuai,, X. ;") — — — V. TeN'A.NC" V IN COM MO.N, 4'. Plielan v. Plielan ])owi:u, II. i) ■ V. Imaxt, 3 Phelp V. McDonell Siif.ru- f, V. 2 Phelps V. MrKeiizie Pa iu.ia m i;.\t, '2 Phillips V. Rod path et al Ridioau Canai,, 1 I V. Smith Amk.ndmk.nt, II. 2S Piiiincry et al. v. Smith \Vitm:ss, Ui Phinny et al. v. Stovenson . . . .Ci:iu{i:.\(^v Pickle V. Porriii Aiumthation and Awakd, IV(.'5), 2. Playter v. Cameron ATrAciiMKNi', 11 1. .S ' ■ V. Taylor N r. \v Tui a i., 1 \' . 12 . V. Turner Pi,i:adim;, 11.3.") Plumb V. Miller Attaciimknt, II. 7 Pollock et al. v. Fraser Fhavdi i,i,.\t Dki-ds inc., 4. ■ V. SlIKUIKK. III. 17 Ponton V. Daly RIksm: Pkoiits, S. Moodie EsToi'i'iM,, G ,Vkiu)[('t, 7 Popplevvelldcm.Capreol V. Abbott K.MXTMF.NT, \. '.i ► V. R()e...lLnGi; (i\ Chamukus), 1 Port Credit Har. Co.v.Joneset al.Pour Ciu.nrr IIakuoii Comtanv.. ., Pottsi V. Doyle Costs, Vllf. !• , Poulton V. Dolmage 15iLt,s of Exii{a.\c;f, f.tc, VI. 12. . . V. ■ Fr.KADiNi;, XI. 3 , Powell V. Boulton . . .iNUEMNrrv Bom), 7 , V. " 12 .. ■ ■■■ V. .TunoMENT, 20 V. Gott Costs, III. 9, 10 , V. Williamson IMagistkates, (i, 7 Powers; v. Scott Sheiuff, II. K! Powers et al. V. Ruttan " III. 1 Prentice v. Hamilton Evidence, IV. 1 i V. Libel AND Slanoek, I. ■!• , ■ — V. Record, 1 Prentis.-i V. iieemer Fokeicn .liDciMENT, 13 Price V. Brown Jud(;ment as in case of Nonsuit, III. 3 - V. Lloyd Use and Occupation, 3 V. Sullivan et al Constable, 4 Prlestman v. Kcndrick et al Trover, I. 5 . V. McDoiitrall Arbitration and Award, IV(2), f). Principal OlficersH. M. Ordnance V. Johnson Ordnance Department, 2 Prindle v. McCann e* al Bond, I. 4 .1 . V. Payment, (i . V. Pleading, II. 33. , Prior V. Nelson Arrest, I. 1 .... . I • • • « • • Proctor V. Youn^f Irregularity, ]^. Proudfoot V. Anderson Dgliveky Oudkrs PAor lOf) OO.) **».../ 317 4.20 1(19 237 400 233 3S3 24 4r)2 14!) 37 ()2 312 34!» (;2 220 398 296 192 445 ISO 2r)l :i-)H 139 !»8 3r)7 234 23r) 2r)3 i3r. 284 394 396 196 207 377 217 257 438 124 436 36 332 102 338 349 45 218 159 PAor 10f> 2Si 317 420 Kif) 2:n 400 '23.} 3S3 U 4:V2 149 ), IV(;J), 2. 37 {)2 312 349 (12 .4. 220 3!)8 , 2% , 192 44") ISO 2r>l )Mr.\NV, ... 3r)S 139 ., VI. 12... its 3r)7 234 23r> 2r)3 i3(; 284 , 394 39() 19(i 207 , 377 217 OK NoNSLlT, 2r)7 43S 124 lU), f V(2), r>. 30 r,2 332 102 33S 349 45 21.8 If)!) INDEX TO THE CASES. 619 FAOa Proudfoot V. Lawrence . . . (vl^?.) Action 1 V. lA[mrii\' Principal and Agent, 9 371 ■ V. Tioltei- ot al Arbitration and Award, V. 3. . . . 38 V. « t( VII. 2... 4)4 V. New Trial, X. 2 1 319 Proiit V. Mowaid Plkading, II. 21 347 V. Pollard New Trial, VIII. 2 314 Purdy, q. t. v. Rider Crown Grant, 3 147 QUA V. Holmes Attachment, II. 3(note) 62 Quill V. The School Trustees . . . Common Schools, 0, 7, 8 122 . V. .. .Demurrers, 13 l.'iQ • V. — ... Pleading, X. 3 356 RACY V. Goodman Foreign Judgment, 7, S 217 Ra.iclillc V. Small Attorney, 11(3), 10 67 Radenlunvt, Ex parte " 1.5 64 Radenhurst v. INIcPhersou et al. .Trespass, I. 3 427 Raines v. The Credit Harbor Co.Corporation, 7 129 V. Master and Servant, 1 294 Paiiiville v. Powell, In re Suhpcena, 1 415 Ralph V. Link Trover, I. 8 435 Ram;ass,H. 18 432 Reirina v. Aumond Ri; venue Laws, 10, 11 383 .Mandamus, 13 *-9«. H;,xter Husband and Wife, 5 232 .Flour, 215 *-15 Reves v. My V. — v mond .. . v. Balkwell .. . v. V. Heekman ^ .n ,/•= V. iJia^riir District (now County) Council, 13 165 • •••••■ ,R V. Honter V. V. Brown V. Tolls, 2 v. Burnham 1 m'orm ation, 8 V. Cameron Attachment, III. 3. V. Crooks Costs, VIH. 7. V. ■ • V. 382 Scire Facias, 6 385 Conviction, 5 127 425 238 63 140 237 238 .Information, 1 .. M 3, 4. 620 INDEX TO THE CASES. n i i ■' ■ ' i; Regina v. Crooks Subp(ena,4< V. Easton Revenue Laws, 10, 11 V. Gore District Council. District (now County) Council, 16 V. Mandamus, 2 V. Gould Information, 6 ' V. Practice, I. 12 V. « III. 4 V. Hamilton Sheriff, II. 13 V. Havstead Albion Road. .Conviction, 9 V. V. V. V. V. ' V. ■ V. Hyatt Attachment, II. 11 Inipcy Appeal, 1 Jngger et al Customs Acts. 2 Jarvis Sheriff, I. 17 « II. U « 11.26,27 V. Kelly EjecTxMENt, IV. (2), 4 V. Kerr Subpcena, 2,3 V. Land Bond, II. 17 V. Le Clerc Recognizance, 1 V. Leeming et al Executor etc., I. 12 V. Maddock et al Arbitration and Award, I. 3.... V. Mathews et al Recognizance, 2 V. McCoiinell Mandamus, 18 V. McCulIough Division Court, 5, 6 V. McLean Mandamus, 25 V. McLeod Sheriff, II. 8 V. Moodie " II. 10 V. Moran Division Court, 5, 6 V. Munro Information, 7 V. Patton Division Court, 5, C. . , V. Ross Conviction, o, 4 Ryan Quo Warranto, 3. Rate Collector. . Scliram et al Recognizance, 4 , Slieritl'. Parent and Child, 1,2 Siuitli District (now County) Council, VI Siieider et al Principal and Agent, 6 Sn()okt< Husband and Wife, b V. Taylor (yl7J.)('oNViCTiON, 1,2 — v. Thorpe Recognizance, 3 — v. Tom!) Attachment, II. 2 — v. The Bank of U. C. .Bank op Upper Canada, 1, 2 — v. The Board of Police of Niagara Mandamus, 22 — - v. The Home District Turnpike Trust Turnpike Trust — V. The Vice-Chancellorof Upper Canada (Jameson)PROHiBiTioN, 1 .'. — V. Vinninget al Poundage etc., 4 V. Wismer • Highway, 7, 8, 9 Registrar, County uf York In re. Deed, III. 15. PAOB 415 383 165 291 238 361 369 394 19 128 63 27 149 392 394 395 179 415 106 376 205 30 377 293 168 293 393 393 168 238 168 127 375 376 377 232 165 371 232 7 377 62 78 293 438 373 359 231 155 PAQB 4-15 383 ouNCiL, 16 165 291 O'JQ • ••• •••• •••••••••«• ■ V. JusticesofNewcastleDist.CERTioRARi, 5. • V. Quarter Sessions, 3 ■V. Kenny Criminal Law, 4 ■V. Kidd Limits, I. 1 ■ V. Magistrates of Niagara. .Mandamus, 3 ■ V. Mackintosh Penal Statute • V. McDonell Indictment . V. McHeavrey Forcible Entry i:tc., 2 • V. McKenzie etal Attachment, IJL 1 ■ V. Nash Onus Probandi, 1 ' V. Phelps Inquisition v. Ruttan Attachment, I. 9 ■ V. Sheriff, II. 5 ' v. Sanderson Highway, 2 ' V. Sheriff, Niagara Sheriff, II. 4 V. " 11.25 V.Sherwood " II. 1") ' V. Thealc Evidence, II. 9 V. Welland Canal Co Welland Canal, 1 V. Whitehead etal Attorney, III. 12 Reynolds v. Shuter Contract, 6 Rhodes v. Crawford (ex'ors of).. Account Stated, 3 Richards v. Boulto.i Libel and Slander, 111(2), 3.. Richardson v. Fraser et ux Dower, II. 11 v. Northrope Arrest, I. 3 Richardson et al. v. Daniels etal Bills of Exchange etc., II. 2. Richmond v. The Municipality of Leeds and Lansdowne.(^i;j.) IMunicipal Council, 7 Richmond etal. v. Campbell .... Abatement, 2 V. ....Costs, V. 1 V. <• VIll. !). Ridout V. Brown Attorney, IH. 2 Ridout et al. v. Manning et al. ..Bills of Exchange etc., II. 12.... Ridout, In re Attorney, 1. 4 Rigney v. Ruttan Escape, 21 3v 521 PAQI 25 35 99 230 65 21)8 126 146 61 147 81 238 216 146 291 292 374. 116 374 147 2S0 291 339 236 216 63 330 239 62 393 230 393 395 394. 195 449 69 125 15 271 170 45 83 21 9 137 140 68 85 64 188 i'l!i' INDEX TO THE CASES. Ritcliey v. Tho Bank ofMontrcal.CoNTnACT, 8 125 V Pleading, II. 32 349 Roach V. M. C.of Hainilton(^^j.)MuNiciPAL Council, 1,2 20 V. Potash ct al Judgment, 8 252 V. Nolle Prosequi, 1 321 Roberts V. Hasleton Cognovit, 2 117 Robertson V. Roulton Notice to Produce, 6. V. Brown Bailment, 1 V. Cooley ct al General Issue, 5. . V. Trespass, II. 2. . . 329 77 226 429 75 196 V. Coin ct al Bail, II. 10. V. Meyers Evidence, VIII. 6. . V. False Imprisonment, 9, 10, 11.., . 210 V. New Trial, IV. 11 312 V. Pleading, V. 3 353 V. Variance, 10 442 Robertson ct al . v. Buck Absconding Debtor, 15 11 Robinetv. Lewis.... ... .Arrest of Judgment, 9 54 V. .... Dower, II. 8 169 V. " 111.4,5 170 V. « III.6 171 Robinson, Ex parte Partition, 1 334 Robinson v. Fetterlcy ct a\{Ap.) License, 2 IS V. Hall Escape, 1 186 V Gaoler, 1 223 — V. McGrath Practice, I. 10 361 V. Rapelje Evidence, V. 4 197 V. « VIII. 3 199 V. New Trial, VIII. 1 314 V. Witness, 21 453 Rochleau v. Bidvvell Amendment, III. 10 27 V. Evidence, II. 1 193 . • V. Frauds (Statute of), I. 3 219 V. Practice, I. 14 361 Rockwell V. Murray Trespass, II. 20 432 Roddy v. Moffatt. . , New Trial, XI. 6 320 Rogers v. Spalding Libel and Slander, I. 3 297 Rogers ctal. v. Barnum Deed, III. 8 154 Ross v. Calder Attorney, 11(3), 3 67 v.McNab New Trial, V. 2 312 v.Merritt « IV. 6 311 V. ■ Seduction, 11 387 V. Urquhart Arrest, III. 10 51 Ross et al. V. Balfour et al <« L22 47 V. « IV.16 53 V. Indorsement, I. 4 236 V. Burton Guarantee, 5 228 V. Codd Bills of Exchange ETC., IV. 18... 91 V. " V. 1 92 V. Common Counts, 3 121 V.Dixie Bills of Exchange etc., IV. 20.. . 91 V. Estoppel, 7 192 INDEX TO THE CASES. C23 PAOB 125 349 20 252 321 117 329 77 226 429 75 196 , 11 210 312 353 442 11 54 169 170 171 334 18 186 223 361 197 199 314 453 27 193 219 361 432 320 297 154 67 312 311 387 51 47 53 236 228 91 92 121 91 192 Rossetal. V. Garrison Assumpsit, II. 9 61 V.Hamilton False Return, 8 211 V. Hixon Practice,!. 13 361 V. McKindsay Bills of Exchange etc., VII. 10. . 99 V. Notary, 2 324 V. McMartin False Return, 10 212 V. Tait Assumpsit, I. 5 58 V.Webster Constable, 5, 6 124 V Pleading, X. 2 356 Rossq. t. V. Meyers Judgmentasincaseofnonsuit,III.9 258 V. « IV. 3.. 258 V. « IV. 6.. 259 Rossin et al. v. McCarty et al . . . Bills of Exchange etc., IV. 15. . . 90 V. ..Pleading, I. 6 241 Rosvvell. v. Hartwcll Costs, VIII. 2 139 Rowan v. McDoncIl Escape, 24 188 Rovvand v. Tyler Amendment, II. 5 . 22 Arrest of Judgment, 8 54 Covenant, 11(2), 11 145 Nonsuit, 22 324 Release, II 379 Verdict, 5.; 445 v. DeLay Attorney, 11(3), 7 67 — — V. Hamilton Variance, 6 441 V. Witness, 15 452 Rudolph V. Bernard Distress, I. 5 161 Ruggles V. Beikic Heir, 4 230 V. Limitations (Statute of), IV. 4.. . 279 Russell V. Conway District (now County) Council, 6. 167 V.Miller Term's Notice, 8 422 V. Rowe Estoppel, 9 192 V. Evidence, VIII. 5 199 Russell et al. v. Crysler Limitations (Statute of). III. 11. 278 V. McDonell (ex.of)BiLLS of Exchange etc., V. 6 92 V.Robertson Limitations (Statute of). III. 3.. 277 Russell et ux. v. Graham Record (Nisi Prius), 10.- 378 — — . v. Surrender, 5 417 Ruthven v. Ruthven Arbitration and Award, II. 8, 9. . 32 V. (Ap.) « " 1,2.. 2 V. Arrest, II. 9 49 Ruttanv. Ashford Sheriff, IV. 3, 4.... 399 V.Robertson Costs, VIIL 3 138 V. Ruttan Joint Tenancy, 2 250 V. Shea Bailiff, 2 77 V. Sheriff,IV. 7 400 v.Wilsonetal Escape, 22 188 Ruttan et al. V. Ruttan Bond, L 6 103 Ryan et al. v. Leonard Appearance, 3 28 SAMSON V. Yager Alteration 21 Sanders v. McSherry Attachment, II. 5 62 Sanderson v. Cameron Insolvent etc., 18 240 524 INDEX TO THK CASES. I- ;t'. ; \ Sanderson v. Coleman Bailiff, 1 V. Ciimiiiings Akukst, I. 21 — ' V. Hamilton Sheriff, V. 8 Sanderson et al. v. The Kingston Marine Railway Conii)any . . Distress, I. 10 V." New Trial, V. C Sandford ct al. v. O'Donohoe.. .Auction and Auctioneer, 1 i V. Ross Bills of Exchange f.tc, IV. 8. . . . Saunders v. Playtor Commission toexa!Minewitnesses,5 . V. Nonsuit, 1 Savage v. Jarvis (-^i'O Sheriff, 5, 6 Sawyer v. Manahan Customs Acts, 7. V. McDonell Costs, 1(2), G. Scobell V. Gilmour Arbitration and Award, V. 8. . . . Scott V. Ferguson Costs, 1(1), ',i . V. Fralirk Covenant, I. 6 (note) V. McDonald ot al Sheriff, V. 11 V. McGregor Record (Nisi Prius), 1 V. Rooke Costs, I( 1 ), -^ Scott et al. V. Douglass Bills of Exchange etc., IV. 13... V. IliH'onian Process, 3 . V. Macdonald Capias ad Satisfaciendum, 11.... Scouler v. Haley (-^i'O Frai ns (Statute of), 2 V. i^P-) ^^'-w Trial, 3 Sculthope V. Bates Partners etc., 11 Searson v. Small Attorney, 11(1). 2 Seaton v. Taylor Executor etc., III. 5 Senior v. McEwen et al Notice of Trial, 10 Servos v. Totjin et al Fraudulent Deeds etc., .5 Sevvell V. Dray Capias ad Satisfaciendum, 12. . . . . V. Richmond New Tiual, II. 15 ■ V. Thompson Scire Facias, 5 Shankland v. Scantlebury Warrant of Attorney Shaver v. Corry Paticulars of Demand, 4. ■ V. Scott Arbitration and Award, IV(2), 1. Shaw V. Mathieson Limitations (Statute of). III. 1.. . V. Shaw Puis Darrein Continuance ; . V. Turton Arbitration and Award, III(2), 1. Shaw et al. v. Nickerson Attorney, IV. 9 ' V. • Judge (in Chambers), 5 V. '■ Limits, I. 6 V. Vandusen Guarantee, 8 Shea V. Choat Magistrates, 9 Sheldon v. Hamilton Costs, III. 2 . V. Law Gaming, 1 .'.. Sheldon et al. v. Hamilton Arrest, HI. 2 SherilT v. Patterson ct al Common Schools, 5. Sheriff of Newcastle Dist., In it.Mandamus, 9 Sherwood v. Campbell Set off, 1 . v. Gibson New Trial, IV. 9... — — V. Johns Covenant, II(2), 2 • ->— V. Moore Monuments rAoi 77 42 401 161 312 71 89 119 322 32 150 132 39 130 142 401 377 130 90 372 111 13 21 336 65 207 328 221 111 309 385 447 333 36 277 374 33 70 251 281 228 284 135 223 50 122 291 388 311 144 300 ' • J rAoa 77 42 , 401 161 312 1 71 V. 8 89 rNEssES,5 119 322 32 150 132 V. 8.... 39 130 142 • •••■••• 4*UX 130 IV. 13... 90 372 |M, 11.... Ill 21 336 65 207 328 5 221 M, 12.... Ill 309 385 447 4 333 S IV(2), 1. 36 '), III. 1.. 277 CE ; 374 , 111(2), 1. 33 70 251 281 228 284 135 :.. 223 50 122 291 388 311 144 300 INDEX TO THE CASKS. 525 Shenvood v. O'Reilly Malicious Auuest, 22 290 Sherwood et al. v. Coleman .... Ship IIe(;istuy Act, 2 [ 405 V. Tiic Roard of Works Board of Woiik?! 102 Shiels V. Davis I.ntkrpi.kadek, (i 246 Shipiiian v. JJirniiiiy;liain Jlky, -t o(io ■ V. Clotiiier et al..(J/).)Pi.EADi\(;, ,'il og Shirley v. Hope Cummo.v Schools, !) 122 Shore v. Burrell Bau,, III. 9 75 V. Shore ct al Assault a. no Batteuy, 1 55 Shore et iix. v. Bradley Jl nciMENT oi- Non Pkos, 1 260 Short V. Kingsinill ct a! Fokioicx Law, 1 217 — — V. Vaiuanck, 11 4.40 ■ V. Lewis New Tkial, 11. 4 3()7 ■ V. McMiillon Bankiui't etc., 18 80 Shouldice V. Fraser Demiiuieus, 12 159 V. Escape. l(j 187 • V. Rkcucmzance, 7 377 • V. Sheiuff, I. 1 70 . V. Interest, 2 244 V. Payment, 9 358 Skae V. Arkland Judgment AsiNCASEGFN0NsuiT,in.7. 2.")8 Skinner v. Amendment, II. 35 25 — ^— V. Ilolcoinbe Arbitration and Award, VI(2), 11.. 42 V. Nevin Costs, 1(1). i! 130 - " ■ 92 39 Slattery v. Turney et al.... ••••••• .Bills of Exchange etc., V. 2 AllBITKATlON AND AWAKD, V. 7. ••••••< •■• ••• Slack V. McEathron V. Waiver, 5 447 Slee V. Graham et al , Leave AiNO License, 3 266 Sligh V. Campbell Arrest, IV. 1 52 Small V. Beasley Bond, II. 18 106 , V. .. Demurrers, 8 159 626 INDEX TO THE CASES. r Will V. V. V. V. Smart v. V. Smart et Smith V. V. V. V. ■ V. V. V. V. > V. V. V. V. V. ■ V. — — V. V. V. — — V. V. V. V. Smith et Bcnslcy Waivhr, 2 Bennett New TniAr,, 11. 7 Bitiaar 1)istui(;t(n()w County) Councii,, 13. M'Kcnzic Liuel and Slander, III('2), 2 New Tuiai,, II. 8 . Practice, 1. 3 Powell ct al Nonsuit, 17 Rogers Arbitration ami Award, V. (» Bir.I.S OF ExCllANCiE ETC., V. 16 ... Stanton Bond, I. 9 Straclian ct al Pleading, 11. lf> Demcrea Practice, 11. 16 1.7 Stuart Covenant, I. 5 al. V. Brown Executor etc., Ask Practice, 111. 9 Aubrey Replevin etc., 12 , Bellows Sheriff, 11. 11) Book Partners ETC., 8 Chep Malicious Arrest, 14- .. Collins Libel and Slander, I. 7 Cotton Venue, 9 Davidson Money Paid, 3 Dissctt Practice, I. 33 Dittrick (ilj^)BoND, 2 (^;9.)Creditors, 2 (4p.)Pl'EADING, 30 Jarvis District (now County) Council, 1. Escape, 23 Judson Bills of Exchange etc., VII. 1.5... Kennett Judgment as incase ofnonsuit,11I.4'. Lawrence Arrest, L 39 Morton Bail, III. 7 Oates Pleading, I. 5 « VL6 Ross ..Arrest, I. 40 Rourkc Elections Russel (ilj?.)VENiRE ..; Shaver Amendment, II. 15 Smith Easement, 1 Indorsement, I. 7 Way Sullivan Arrest, I. 6 Thompson Malicious Arrest, 18 Turnbull Execution, 18 , Whiting Carrier, 1 al. V. Graham Attorney, III. 13, 14 -^v. Hall Bills op Exchange etc., III. 18,19. - V. Jarvis Sheriff, III. 5 ■... - V. Ridout Deed, III. 21 Brown et al Distress, I. 6 Draper et al Demurrers, 5 Irregularity, 6 PAOH UG 307 165 271 308 360 323 39 91. 101. 34.6 3GS 112 204 369 3S2 394 335 2S9 26S 444 300 363 5 8 28 166 188 100 257 48 76 341 354 49 185 36 23 171 236 449 46 289 202 111 69 38 397 155 161 1.58 247 i I INDEX 10 THE CASES. 4.4G 307 )UNcii.,13. 165 i),2 271 308 360 323 ,V. 6 39 , V. 16 ... 5)1. lOJ. 31.fi 368 112 201. 369 3S2 391. 2S9 268 4.M. 300 363 .') 8 28 Council, 1. 16G "vii'.' iV)!!! 100 )NsuiT,lII.4.. 257 48 76 341 354 49 185 36 , 23 , 171 , 236 , 449 46 , 289 , , 202 Ill 69 ,111.18,19. 38 , 397 , 155 , 161 158 247 627 FAOB Soper V. March New Triai,, X. 26 319 Spallbid V. Uiiclianan Costs, II. 7 134 ...EviuE.NCK, IV. 2 196 ...juuumentasincase0kn0nsu1t,i.35. 256 .Malicious Arrest, 4 287 V. V. V. V. V. V. Buchanan ct al. niiljl)lc Fences, 3. .Master and Servant, 3 213 294 419 278 230 Slierwood Taxes, 8 Spalding V. Paiker Limitations (Statute of), III. 8... V. Royorsclal Highway, 4 V. Trespass, II. 25 433 Spencer V. (jiilVord Bail, I. 10 73 Sprasfi^c V. McM.irtin Attorney, IV. 4 70 Spratrue ct ux. v. Nickcrson Master and Servant, 2 294 St. Lcger v. Manahan Crown Grant, 12 143 Staats V. Reynolds Assessment of Damages, 6 57 V. Term's Notice, 6 422 StalTord V. Williams Taxes, 14 419 bi^nton V. Aiulmss Libel and Slander, I. 1 267 V. Justices of Home Dist.MANDAMua, 11 292 V. VVcllcr Carrier, 13 113 Stanton ct al. v. Windcat Amendment, II. 16 23 V. Crown Grant, 8 147 Starkweather ct al. v. Andruss... Bills of Exchange etc., V. 5 92 Start V. Biiilen Judgment as in case of nonsuit,I.1. 255 Stehbinsv. O'Grady Practice, I. 34 363 V. O'Grady ct al Limits, II. 7 281 Stcdnian v. Waslcy Fence Viewers 213 V. Pleading, II. 11 345 15 222 236 38 321 Steel V. Hamilton Fraudulent Deeds etc., V. Lanicux Indorsement, I. 3 Steen v. Glass Arbitration and Award, V. 2. Stephens V. Allan New Trial, XI. 8 Stephens ot al. v. McDonell Carrier, 10 112 Stephenson V. M'Combs Attorney, II. (1), 6 65 Stevens v. Sheldon ct al Irregularity, 14 248 Stevenson v. Hainer Estate, 3 189 v. M'Combs Mesne Profits, 6 296 Stewart v. Byrne Duress 171 . V. Crawlbrd Arbitration and Award, Vl.(l), 4. 40 : V. Davis , Judgment asincaseofnonsuit,11I.8. 258 Stinson v. Magill (4/'0Covenant, 4 8 v. Scollick et al New Trial, IIL 1 310 Stocking v. Cameron Demurrers, 9 159 V. Escape, 26 188 33 162 169 133 212 131 163 V. Crooks Arbitration and AwARD,in.(2),3. Stoddard v. Arderley Distress, II. 4, 5. Stoner v. Walton Dowku, H. 6 Strachan et al. v. Bullock Costs, 1(2), 10 . Strange v. Jarvis False Return, 1. Stratford V. Sherwood Costs, 1(1), 19 . Stralliy v. Crooks Distress, IL 6,... 't"'l it 628 INDKX TO THE CASES. j! iva I , 1 ii r. i"' - Strjitliy V. Crooks ExKcrTou ktc, 1. 2 V. Imimii.oci ToKV Jldcjment, 1, V. Pi.i:.\t)iN(;. III. ."J ■ V. TUKSPASS, II. '2i V, Nii'liulls Hii.i.s OF Iv\chan(;k r/rc, VI. 5. Street v. Cimieron PAiiricLi.Aiis of Dkmano, (),7...333, Stroiil)riilge v. Diivis Ahiuost. 11. '2 Stuart, In re Atpounkv, 11(3), f) Stuart, (|. t. V. Hiilleii Nonsiit, Ki . V. PnNAi, ArrioN, 3 Stull V. McLeod SiiFiuri-, II. 22 V. '< III. 7 V. Vf-nditiom ExI'ONAS, (j Sullivan et al. v. IJriibes Attoiinrv. III. .") Siitlierlanil V. iMurpliy Akiucst, IV. 1'2 Sutiierlariil elal. V. AhCasliill ...(!i AitANrr:n, (i. 7 V. I'iitlerson Onls I'liuiiANin, 7 — V. Siii;ili Xkw TiUAi., 11. 1~ V. Sparke I'l al...AuMY, 3 Sword V. (.'arriitliers Piu.ncii'al A^u Agknt, 7, 8 »■•••••••••••••••*• ••< TAIT V. Lanirley et al St. Lawiu;nck Canai Tait et al. v. Atkinson AiuiniiAi U)N AM) AwAun, VI(2), 1. Talbot V. JMcDoiiLcall Ni:\v Tuiai,. 111.2 Tannaiiill v. JMosler AiiitKsr, I. 20 Tanner V. D'Kveradt) et al Pa vMr,.\r. 7.. Taylor v. Can (\)srs,lll.3 V. Linin, ANO Si.a.nocu, II. "t, 5. V. Nielioll AiJst.'uNDiM; I)i;jitor, 23 ■ V. Taylor h ix.mknt, 2S —— V. W \< ' Teal V. Clarkson Teller V. Wilson Termery v. Stiles Terry v. JMatlheus .•" icKiNu, .3 \{'T1CF„ 11. 21 .('\si: (AcTi' \ ON the),G .1i)i:m Su.na . 2 .Ph > CTiCF,, 11. 12 V. Starkueallier I, i.i. and Sj.am)F.u, 111(2), f) Te\v.sley v. Dunlop et al \ ,iii ruATioN a.nd Award, VI(2), 16 Thayer V. Hensley Akimcst, I. 37 Thew V. Ailatns Bii.i.s of IvxciiANtii: irn , IV. 14> Thirkcll v. lAliPiierson elal Cakiukr, K) V. Slraehan AKiirniATioN AM) Award, III(1),3,4' V. " " 111(2), 9. V. " « V. If) Thirkell et al.. In re " « 1.4 " " II. 1. Tiionias v. Iliinier Amf.ndmf.nt, III. 28 V. Al'l'FAl,, f) ■ V. Jolmson elal l.NUii.MMrv ]?()M), 2, 3 ' V. SllKIUFF, I. 11 V. JNIallorv Aecor.i) and Satisfaction, 1,2 V. rialt LiiiKL AM) Sla.nueu, II. 7. PAOB 2U3 2U 3:")! 132 97 3.34. 49 67 323 339 39.5 397 443 68 53 228 331 308 45 371 414 40 310 47 338 135 269 12 254 448 414 .365 114 232 364 271 43 48 90 113 32 34 39 30 31 26 28 234 392 13 , 269 n ;!■ f:\ INDEX TO THr CASES. TAOK 203 fsT, 1 24* 351 m _^ YI_ 5 97 D,(),7...'333, 334 49 67 , 323 339 39.5 397 443 (58 , 53 228 331 308 45 ,7,8 371 414, un,"vi'(2), 1.. 40 310 47 , 338 135 3... 12 254 448 414 365 ,6 114 232 !!"!!!!!!!!!!!!! 364 1(2), 5 271 .UD, VI(2),16 43 48 c. IV. 14 90 113 .K»,III(1),3,4 32 111(2), 9. 34 V. 15 39 I. 4 30 II. 4 31 26 28 234 TION, 1,2 13 1.7 269 Tlioinpsonv. Armstrori!]; Accnnn ANn Satisfaction, 6 13 • ••••• ••• 156 373 144 12 381 2S9 V. liioakenrid'io ])r, in.il uiv,t: V. Caldor Piioci'.ss, 7 V. Chambers Covf.xant, 11(2), 7 V. FaiT AiiscoNDiNG Dkiitou, 2S, 29. V. Forsytli Hr.i'i.i:\ IN r.i'c, 4 V. (lanison Mamciuus Akkkst, 19 V. Huiiilltoii Tr.NDKu, 1,4 421 V. Hii;;lis()ii Insoia K.NT inc., 22 241 V. Leonaiil Capias ad S\iisKACir.M)tM, 2 110 V. Fai.sk Imi'Iusdnmio-nt, 1 209 V. Mncliiii ct a1 Caukikk, 14 113 V. Marsli ct al Distiikss, I. 1 161 V. •' n. 1 162 Tnsluanci;, 11 243 Ninv TiuAi,, IX. 4 316 IJll.l.S Ul' KxrilANGK ETC., IV. 23.... 91 C.u;novit, 7 118 PiiACTicK, ir. 16 365 ,C()MMISS10NTOKXAMINi;WITNESSES,8 120 V. ..CONTUACT, 2 124 .Set vyi',S 389 11 18 •••ta«at •• V. IMontrt-al Ins. Co. — — V. Sewcll. . V. Sloan.. — — — ^ V. Zvvick, V. Tliompsoii t;t al. v. Ciimininjfs •••■•*•••• • • •••••• ■ • •••••• ■ Tliorne v. Ilaiglit V. Mas(m (y1;>.)FsToi'PEL, 5 V. ■ (yly).)MAi,i(:ioi;s Akiiest, 1, 2 308 360 369 363 168 42 58 Tliorpe V. (Iiier .....New Tkiai,, II. !().....♦, Tliiooi) V. Colo Practice, 1. 6 Tillanv V. Biillon " HI- 6 T iil ot al. V. vValiacoctal " H. 1 Tiinoii V. StiiWjs cl al Division Colkt, 2 Tinkle v. Amokl AuiirriiATioN and Awaud, VI(2), 12 Tinning V. Masratli Assumpsit, I. 1 Tol)in et al. v. MerriU et al 1'aktners etc., 9 33j Todd V. Tiie Gore Baidc Monev had and ueceiveo, 9 298 Toland V. Bruce (yl;,.)CovENAXT, 1 7 Toloman v. Crew I'leading, II. 27 348 Tool V. Low Practice, U. 25 3G6 Toronto and Lake Huron Railroad Co. V. Crooksliank Statutes (Construction oi), 2, 3. 407 Toronto and Lake Huron Had- > Toronto and Lake Huron Rail- • road Co. V. Crooksliank... ^ road Company 425 Tossell et al. v. Dick ct al New Triai,, H. 19 Tolten V. Fletcher Auscoxdini; Dedtor, 20 Townsend V. Morton Arbitration and AwAun,IV(l),o Traccy V. Ilodgobt ;' ^ v ' T"* V. ■V. •V « « « 14. 309 12 35 32 38 39 Trainor n- v. Holcombe District (now Countv) Court, 13. 167 _ V. Manuamus, 23 -''-5 Trigcrison v. Board of Pcjlicc ol' Cobourg False Imprisonment, .».. Tripp V. Fiuser Security for Costs,4 .. 209 3S6 3x 530 INDEX TO THE CASES. Truax ct al, v. Cliristy Practice, I. 2j Tnicsdale v. M'Donalil Nuisance, 1 Truscott ct al. v. IJilliiigs iJir.LS of Exchange etc., II. 9 V. GoUlic et al. ...Notice of Tuiai,, 2. — V. Lngoiii-ge Bills of Exchange etc., II. V. Walsh et al. ...Insolvent etc., 13 Tully V. Glas:^ Certiouari, 2 V. Graham Demurrers, 1 Tully et al. v. H. M. Ordnance. ..Ordnance Department, 1. Turley v. Grafton Road Co.(ylj).)CoNTRACT, 2 v.- (v1^).)Grafton Road Company. V. (yl;J.)PRACTICE, 5 „ ■ ■ V. (il7).)W0UK AM) LaUOR Turner V. Ahvay Arbitration a>;u Award, VI(2),1-. V. lliim Bond, II. 7 Tylden V. Bullen Evidence, V. 3 V. - New Trial, VI. 3 Tyler V. Babiiijiton " VI. 4 Tyrill v. Aiinis Assumpsit, I. S Tyrrell v. Myers New Trial, X. 20 Tyson V. Little (yl_/J.)EviDENCE, !) • •• •••••••••••• •• ••••«• 302 329 85 327 83 240 115 158 332 7 13 23 37 41 105 197 313 313 59 319 12 U\GER V. Crosby , New Assignment,! 303 Ijipcr V. Haniiltm False Rkti kn, 3, 4, 5, (i 211 V. McFarland Evidence, iV. 5 19G ■ V. ^...Notice of Action, 1G .326 Upper Canada Bank Soe Bank of Upper Canada. IJtiher, In re I'autition, 5 324 !i VAIL V. Duggan ct al Attorney, 11(1), 3... V. ■ « Il(~), 5 V. Money had and received, 14. V. Flood New Trial, II. 11 V. NoIjIo ct al Trespass, II. 11 Van Ef^mond et al. v. Jones Aruitraiion and Award, 111(2), 5. Vanderhurg v. Vanalstine ('ovenant, 11(2), 3 Vanderlip v. Mills Boundary Line Commissioners, 1. Vankeuren v. Grillis Liuel and Slander, Ili(l), 1 Vankoughnett v. Ross Heir, 5 Vanleuven v. Vanduscn et al. ...Bills of Exchange etc., IV. 24... Vannorman v. Leo.iaid Patent, 1 Varey v. Muirliead Covenant, 11(2), 12 V. New Trial, Xi. 2 V. Scire Fa( ias, 2 Vauj^han v. Ross et al (y1^i.)Ai'Fii)AviT, 1,2 v. (ylj;.)BiLLS of Exchange etc., 13 Villairc v. Cccille etal Trespass, II. 22 Vincent v. McLean .li dcimknt, 25 V. Spraguc Evidence, VIII. 8 V. Skduction, 2 65 66 299 308 430 33 144 107 270 230 91 336 145 320 385 1 5 432 254 200 386 INDEX TO THE CASES. 531 302 309 II. 9'..'.'.'. 85 327 II 83 240 , , 115 158 1 332 7 r 13 23 37 tP,Vl(2),i. 41 105 197 313 313 59 319 12 303 211 19G 326 324 65 G(i El), 14 299 308 430 ), 111(2), 5. 33 144 SIGN Kits, 1. 107 l),l 270 230 ., IV. 24!.! "oi 33G 145 385 1 , 13 5 432 254. 200 386 WADDEL V. McCabe Money had and received, 6. V. Stock Notes, 1, 2 Wadsworth v. Mevvburn ; Notice op Action, 4 V. Murphy « 6 V. Revenue Laws, 8, 9 , Waite V. McDonell (.^^.)PRACtice, 14. Wakefield v. Gorrie Auction and Auctioneer, 6. V. Set off, 16 Walbridge v. Lunt. Recognizance, 6 , Wall)ridge et al. v. Follett New Trial, 1.13 Walker v. Boulton , ... Dower, II. 2 V « IIT.2 ■ V. Frauds (Statute of), III. 2. V. Court Executor etc., II., 5. V. Powers Dower, I. 3 Walker et al. v. McDonald Nonsuit, 6 , , Wallace v. Henderson Bills of Exchange etc. V. 24. . . . « v. « V.26.... V. Mason Co*'tract, 1 , Waltenberger v. McLean et al.. Practice, I. 33 Walton v. Hay ward Cognovit, 1 . . . ■ v. Hill (4;'0Dower, 4,5... v. (^jj.)Pleading, 27 . . Ward v. McCormack Cognovit, 13 , — — v. — — Executor etc., III. 12 , v. Skinner Bail, IIL 2, 5 , v. Sheriff, I. IS V. Slocking et al Bail, II. 2 . v. Ward Irregularity, 4 Warrcner et al . v. Kingsmill et al.FoREiGN Judgment, 5 ■ — V. (ylj).)PLEADING, IS Warren v. Grant ct al Judgment as incase ofnonsuit,I.14. . V. Kirhy Abatement, 5 V. Smith Judgment as in case of nonsuit,I. 3. V. VVnison Carrier, 6 Washburn v. Fotliorgill Particulars of Demand, 3 • V. Langloy Costs, 1(2), 7 . V. Powell Scire Facias, 3 " V. Walsh Indoiasement, I. 2 Watkins v. Nicolls Pleading, I. 2 V. Washburn Account stated, 4 Watkins et al. v. Corbeft Siiii' Registry Act, I V. Liebshitz Arrest, I. 11. Watson v. Black Arbitration and Award, 111(2), 2. v. Ermatinger Parliament, 3 v. Fothergill Judgment, 21 . v. Gowen et al Agreement, 4 ■ -■ V. Lee Commission to examine witnesses,7 V. McDonell et al Sheriff, IH. 10 V. O'lkirnc Contuact, 9 -^— — V. Riordcn et a! Trespass, II. 9 V. Strong .(il;;,)JuDGMENT as in case op nonsut . . PAoa 298 414 325 325 383 23 71 390 377 306 169 170 220 205 169 322 94 95 124 363 117 10 28 118 208 76 392 73 247 216 25 256 9 253 112 333 132 385 236 341 15 405 46 33 333 254 19 120 397 125 430 16 t r ' '*-. I T 532 INDEX TO THE CASES. i 'M Watson V. SullKMltuiJ et al AmsrniATftiN axu A\v\kd, IV(1),4'. V. Tcrvvillejrcr DoAvi;ii, 111. 7 V. Toronto Gas Liirht ami Water Company Arbitration and Award, 111(1), 5. V. " « 1V(1), 8. V. Case (Action on thio), 1 V. (!as CoMPANins, 1 V. X i;w TiUA 1,, Vll. 1 — -^^ V. Xl ISA NCE, 1 V. Pi.KAiu.Nc;, II. 'M) -Watf.I!, 1,4- Walsoii ct !il. V. llamiitiin Ami;.M).mi:.nt, 11. 9 V. " 11.39.... V. SiimuFF, V. 7 Watt V. Buell PuAriici:, I. '32 Weaver V. Lawreiu'o Hlsuam) and Wii t,, 2. Weir V. Harvey et al Attounev, 11(1), 1, T) . . Well)y V. Beard Ar.ui:si', 11. ■!• WellandCanal Co. V. Warren etal.AVr.i.i.AM) Canal, 2. . . . Wcller V. Wallace et ;il Piu)ri:ss, l Wells V. Crow Tunvi-ii, [. JO V. Ritchie ]>()M), 1. ;') Wemp V. JMaruiiiii el ;il Tiaancv in (.'ioimo.n, 3 Wentworth v. Ihiiilies Dis riiii; r (now Cm Nrv) Colkt, 1."). West V. Broun, (L Y.) I'i.kadini;, \'I. .'! V. (H.A.) Hii.i.s (IK K\( iiA.NcK r.rc, IV^ 12.. Westovcr v. ]3urnliani Aukkst, 1. 29 •. V. CaI'IAS Al) Kksi'ondkndim, .'3 Wheeler V. Sime el al Disikk r (now Cui.mv) Colrt, 3.. — ^^— V. Iii.i'i,i;\ i\ irrc S Wlielan v. Stevans Falsi; Impkisonme.nt, 7. V. ■ LaIIiiUI'.KS White V. Boulloii A rroKMiv, III. 9 — — V. Hunter I'\m. (M' liiu risii Niinrii A>ii:iuca,2, V. L\ i;ei roil i: re, I. 1 , i»«««a*««i V, IIii1( liiurton i{i;((iuo (N isi 1'kils), -1 V. I'etcli el 111 Ci.KKK or ■riii; CiiowN a.M) Pi.i'.as, 2. V. ^'■}^' I'hiai., Al. 3 V. Siii;Hii 1', II. 23 V. Stevens FiiAi nn.i.NT Di;i;i)s rK'.,(J Whiteliead V. Br.mii Costs, 11. 12 Wliitelaw V. DavuUoi Amkmiaiu.nt, II. 3t!. . . . , Whiten t'l al. v. CmvimI'V NoNsi ir. 7 • > •••••• WhitlieM V. ToiKl Si.m c rin.\, s .. Whiliiii;- V. i^ I ills lN.\ki:i'i'i;i!. 1,2 -v. iXirull II Ml., I. 9 Whilney v. Wmuls Ilii.i.s di- llscii \N(.r. i/n'., V. 12 ».. WliyatL V. iMarsli Assi mi'mi', I. 13 Whylf el al. v. ("aniernii Vauiam r. 12, 13 WilcuN V. Itui'iiMile 'ri!i>\ i:i!, ll. S ■ V. Mniiiiidiiicry Tkksi'ass, 11. S Wilcox et al. v. Tinning ct ul. ..Bills or Exchange etc., I. 13... PAQE 34, 171 33 35 113 224. 314. 330 350 44S on 26 101 3(i3 232 Gf) 4f) 419 372 436 103 420 1()7 303 90 17 109 l(j() 38 1 209 2(;2 GS 7S 203 378 117 320 39r> 221 i3r) 2.") 323 3S7 238 73 93 .^)9 412 437 430 83 FAQS ,IV(1),4.. 34. 171 111(1), 5. 33 1V(1), 8. 35 113 • ■•■•••• ,W,w^1 314. 330 350 14S 26 101 3(i3 i>32 Gf) 4!) 419 372 43(5 103 420 'OLKT, If). 1()7 3r)3 ,IV\ 12.. !»0 17 M, 3 10!) JoLUT, 3.. 1G() 3S1 209 2(i2 (iS ..Mi;iii(A,2. 7S 203 37S )I'i.i:as, 2. 117 320 39,") (J 221 25 OO'} 3S7 ■ 23S 73 V. 12 ,.. 93 59 412 437 430 INDEX TO THB CASES. Wilcoxon V. Palmer Replevin etc., 5 Wilkes V. Flint et al Cauuiek, 2 '.,][ Wilkina v. Pock Arbitration and Award, V.' is! '. ! Wilkinson v. Walker Pleading, IX Willard v. Woolcott ; Amendment, III. 13 V. Capias ad Satisfaciendum, 4 .... Williams V. Crosby Insolvent and Insolvency, 1,2.. V. Hoirick Trespass, I. 10 V. King Attorney, 11(2), 2 V. Knapp New Trial, X. 19. V. Mcliean Libel and Slander, 111(1), 2. V. McDonald New Trial, VI. 5 <••••• Williamson v. AIcDonell et al... Practice, II. 19 Willis V. Merriton Costs, 1(1), 14 Wilson v. De La Hookc Work and Labor v. Dickie Bond, I. 3 V. Dillingham Ejectment, I V(2), 5 -^— v. Gilmour Notice to Produce, 1 ' V. Graybiel et al Conviction, 6, 7 ■ v. Hill Guarantee, 3 v. New Trial, X. 14 ' V. Jainicson Scire Facias, 5 -^— — V. McCulIoiigli Escape, 19, 20 v. McQueen Bills of Exchange etc., IV. 7. . . V. Rorke . Covenant, 11(2), 8 — — V. Stevens Witness, G V. Wcstbrooko Judgment as in case of nonsuit, 1.7, v. Wilson Particulars of Demand, 10 Wilt V. Lai et al Sunday, 4 Wiltsee v. Bloor Arrest, I, 23 Wincliestcr v. Cornell New Trial, X. 7 Wood v. Lceming et al Executor etc.. III. 2 .. V. Queen's Bench, 3 V. Moodic et al Arbitration and Award, V. 12. . . V. Sherwood Escape, 3 Wood et al. v. Campbell Alien, 6 v. Fieri Facias, 11 • V. Rogers Pleading, III. G. Woodruff V. Campbell New Trial, III. 4. V, Glassford Contribution, 1 . . Woodruff et al. v. Davis Trespass, II. 12. . . Wragg V. Jarvis Arrest of Judgment, 4 . . . . V. Escape, G, 7 V. " 10 Wright V. Benson Bond, II. 21 V. Indemnity Bond, 4 • V. Johnson La ndlord and Tenant, II. 4 . V. Landell Amendment, III. 12 V. Marralls (yl;).)REC0HD (Nisi Prius), 3 V. (ylj).)UsuRY V. McPherson et al Notice of Assessment, 2 V. Merriam Bills op Exchange etc., IV. 11.. 533 FA:ed felony, when it can be justified ] — 1. When a private ]hmsoii, not being by office a keeper of the peace or a justice or constable, takes upon himself to arrest another without a warrant, for a sup- posed oiFence, he must i)e prepared to prove and atllrm it clearly and un- equivocally in his plea, that felony has ASSUMPSIT. Liability of mover of chartered boat for a/tpjdies.'] — 1. The mere owner of a chartered boat is not liable I for supplies furnished to the person I chartering or at the request of his agents, unless it can be proved that he I is so liable by express agreement ! between himself and the charlerer. Lyman et al. v. The Hank of Lj)pcr Canada, 35-1.. Jiank of Upper Canada incapaci- tated by charier from being ahip- on-ners.] — 2. The Baidc of Upper Canada being inca])acitated by our statute 6 Vic. ch. '^7 sec. 11) from holding shij)s, eitbiM in absolute pro. perty or as mortgagees, it follows, as a consequence, that no /m^j/jWassumpsit can arise against them as ship-owners. lb. [Sre MrDmald ct al v. Tlie Bank of Upper Canada,! V. C. R. 252 ] ATTACHMENT. See Sheriff, 6. fi^r :sT. ong suspicions of committed will V. Gibson, 100. oners.]— 1. Com- jiower to isisi.e r 2 Geo. IV. ch. assiiiiT of 12 Vic. V. Hvtson, 560. UDGMENT. ]—IIe/(/, it is no arrest judgment 10 goods liable to counts, only one wd. T/ie Queen ■c:l V. Brumfiill, EES. LPT, I. SIT. \er of chartered ^— 1. The mere boat is not liable J to the person request of hig e proved that he iress agreement I the iharlerer. Jiank of Ujyper nnndn incapaci- om dting ti/n'p- ank of Upper leitated by our 7 sec. 19 from in absolute pro. ', it follows, as a '';>/jWassumpHit as ship-owners. The Hank of Upper ENT. F, 6. BANKRUPT. ATTORNEY. See Guarantee, 1, One nttorneij suin> ucJ from the party making it; ana i.^i.-ons afterwards becoming assignees of his estate, under the bankrujtt laws, do not take it as his assignees, for they acquire a legal interest in such property only as can be applied to the payment of his creditors generally under the bankrupt law. Jlnderson et al., As signees, ^-d. v. Gamble, 437. BANK OF UPPER CANADA. See Assumpsit, 1. Express promise not within terms of charier.] — It will also follow that no express promise on the part of the bank can be binding, as the directors cannot, under the corporate seal or otherwise, bind the funds of the bank by any contract not embraced in their charter. Lyman et al. v. The Bank of Upper Canada, SSI. BANKRUPT. See Pleading, 17. Assignment of property for benefit of creditors — Debtor's subsequent bank- ruptcy—As to vesting of same property in assignees under the bankruptcy BILLS OF EXCHANGE AND PROMISSORY NOTES. See Pleading, 16,21,33. Special defence to note — Applica- Hon bij holder other than as intended.] — 1. Where a party is made the holder of a promissor}' note for one purpose, he cannot, contrar}' to good faith, apply it to another; where, therefore, a note endorsed generally was put into the hands of A. to get it discounted for the maker, B., and, instead of doing this, B., owing him (A.) a debt, he dis- counted it for his own bencfii, and, as found by the jury, after the note had matured, it was held per Cur., that these facts constituted a good defence to the action, and that the verdict for defendant could not be disturbed. Kerr v. Street tj- Bradshau; 82. Discharge of note by taking mort- gage and acting upon it.] — 2. Held per Cur,, U|)on the deeds, pleadings and facts, as given at length in the statement of the case below, that the defendants, the endorsers, were dis- charged from their liability on the pro- missory notes sued upon, (ihough not so intended by the plaintills) m conse- quence of the plaintiffs having taken from the maker a mortgage of certain steamboats containing a power of sale in case of default in the payment of the notes, and upon which, default % xp BILLS OF EXCHANGE ETC. BILLS OF EXCHANGE ETC. . ! P^ Ui having been made, the plaintiirs had sold the steamboats to third parties for the amount of iho defendaiits' liabili- ties on the notes, civina; credit to the jjurchasers lor the pnrrliasc money, and lakinc; their notes and a mortL'ai^o on the same boats as serin'ily lor its du • payment. Bank- of British IVor//i America v. Jones et n/., Executors, ^. SI). Sufjicienn/ of notice of non pay- ment.^ — 3. A notiee of non payment addressed to no one by name, nor to any street or houso, or jjlaee of busi- ness, but mt'rely '* to the e.xecntiix or executor of the iaic Mr. Jones, Toron- to," is bad. 11). Parfies pay in . The bail of any of the parties who are sued upon a bill or note, or any persons \vhi> jiay the bill or note on account of any of the parlies, beeoine, on payment, holders; and they iiold as upon a transfer from the person /(W whom theij made, the pni/ment, not as a transfer Irom the person they have paid; and they stand, with respect to other parties to the bill or nute, in the situation of the jiarty lor whom they have made the payment; and conse- quently, unless he could have sued upon llie bill or note, they cannot. Hutchinson v. Munroe. 103. 1 Pleading — Duplicity ] — ;"), A plea | by the delendant that In- ilid not in- dorse the notes, and that A. B. did not make the notes, is bad for duplicity. Bank of Upper Canada v. Sherwood. 116. Pleadins — Averment as to note not being preiented ] — fj. Where a note is made payable by A. B. at the Bank of Upper Canada, a plea averring that tlie said note was not duly presented to the said A. B. when it became due is good. lb. Endorser pleading the taking of mortiiafrc by holder from maker, in discharge.'] — 7. There is no reason why the holder of a morlgauc security ■should not lake in addition a note from the morlgaiior with an iiidorser ; and the fact that ihe time mentioned for the defeasance of the mortgage is a period beyond the time at which the note will mature, is, in the absence of fraud, no defence to the indorser. lb. What is the issue nn the pltadings.'\ — 8. McJ\''ub V. Adumson, 1 1 9. Parties liable in the order in ivhich , tliry stand on note, any agreement to the contrary nottcithstanding ] - 9. Parties lo promissory notes are now held liable, contrary lo the older cases, in the order in which ihey stantl on the note, and the last holder may so treat them, notwithstanding any agreement, among themselves, and notwithstand- iiiiT that some one of the later parties lo the note may be the jieison for whose accommodation it was in fact made, and who therefore is ultimately liable upon it, and this even when the person last holding the note is aware of the facts. Kelly, 240. Evidence of protest and present- ment.]— W. The effect of 7 Vic. ch. 4, sec. 2, is to make the certifuate of a notary prima facie evidence of the ■pretest of a bill or note ; and of sec. ;}, to make the producliy of the insolvent, was not valid. Smith v. promissory note to the protest, or DiUrick, 589. affixing it to the notarial act, is sulli- cient. Lyman et ul. v. G. S. Boiil- ton, 323. The certificate of tlie notary, sisined by him, of notice sent, indorsed on the protest, instead of beini' written "on the foot of or embodied in tiie i)ioti'st," sufficiently complies with our act 7 Vic. ch. i. lb. J^ote — .Yotiee of non payment.'] — 13. G. Ross indorsed a note in blank. His agent, boms asked l)y p!ain1ifl"'s BY-LAW. i'ce Municipal Council, 4; Road, 1. Power of Court to quash by-lans."] — 1. Under tlie Ifiotli and 19.ind clauses of the Municipal Corporation Act, 12 Vic. ch. 81, this Court has the power of quashinir a by-law, not only for some illegality appearing upon the face of it, hut also where, as a matter of fact, the by-law has been made in BOAT. See Assumpsit, 1. BOND. See Pleading, 30. -, , ^ Ti 11 .such a manner as it is enacted by the agent where he G. R. resuk'd, gave an i jg^^^, ^.j^^^^ ■^ ^f,„„ „„i ,,^. |„,,.f„, f^^ erroneous direction, which plamtin '^ L,,^, mimifipal corporations to make it. agent wrote in jiencil under the indor-j ^,;,.^ Lnfertj/ v. Municipal Council ser's name. Notice ot non payment -• ^Ventioorth and Ilallon, 232. was sent to indorser at such supposed I "^ i r ^ .* „/ i o t„ , e ., i; 77.1 . .,,1. ! Rifusuloi Court to quashA — 2. In pace of residence, and /(pW that such , . •' J , ., r, ■* ,• ; ' .• tr • . ,-„„A.,r, ,. 'this case, m/k/ct Me /«rt.s 77!e//^07ifrf, notice was sufficient. laugnan v. „ ' . ■ . .„ i, „ i... i„,., J, . , r,nc 'I'e Court relused to quash a tiy-law KOiS et al. Juo. ^.^^ chnniring a road, on the grounds— 1st. Tiiat notices had not been put up, as the act requires; and, 2ndly. That the applicant had not given his consent to the road passing through his orchard. lb. J^''otices of.]— 3. Corporations should be careful to preserve proof of regular notices, by allidavit, of jjcrsons em- ployed to put them up. lb. Ifow it should be proved]— \<. The Queen ex rel. Gamble v. Burnside Sf Morgan, 263. Qucere ] — n. Has a municipal coun- cil power under 12 Vic. ch. 81, sec. 14, to pass a by-law declaring that there shall be " no new inn ?" lb. Compmsation to proprietors.]— Q. See " Pleading," 22. Action may be brought before by- law quashed:]— 1 . See " Pleading," 22. 4 cf- 5 Vic. ch. 10— By-lato bad for want of certainty ]—H. Under the authority of 4 & 5 Vic. ch. 10, a by- Variance betivccn declaration an] bond as set out on oyer.] — 1. See « Pleading " Borul fraudulent as to creditors of insolvent.] — 2. A commission of bank- ruptcy issued against .1. V, one of two joint makers of a promissory note to plaintiff. J. V. was desirous of elVect- ing a compromise with his creditors. The plaintiir agreed to this, provided the residue of the debt due on the note was secured to him. Dofendant gave plaintiff a bond that he would secure the payment of such residue on real estate. Held, on general demurrer to the declaration, that the bond was void ; f;i ■-\''' ¥• l!' COGNOVIT. CONTRACT. 'Pi' j ■ i law was passed by iho District Coun-| COMMON CARRIERS. cil, 30lli Jniii' ISIS. o;-lal)!isliinj; as a I Implied liti/dlifif of stagc-coavh pulilic ii>:i'''aiit under LlJtliUKAKI. ^^.,|j^.|j ii^, eommitled the trespass, is See Conviction, 1, ^. „f,j sullicient evidence as aL'ainst the justices to entitle the constaiile to claim an acquittal under the (ith section of C()(..\0\IT. . ,,,g 24. Geo. II. ch. 44. Kalar v. Cognovit taken through the inter- Cormvall et al. IGS. vention of a prautisins attorney] — A clerk of the |)laintitl's received from an mMTc a rr attorney a printed blank cognovit with CONTRACT, his name i)rinled on tlie back. The Wantofniutualilyin—Licn.]—\. clerk filled it up as to amount and | Held, that a foreign legislature could terms as he thounht fit, and takin|i it make no law creating a lien on legal to defendant it was executed in "the I estate in Canada, and consequently presenceof the clerk only: //eW, that 1 'lin' any contract founded on such thecognovilhad not been taken through i a ciMisideration was void ab initio. the intervention of a practising attorney within the rule, and must therefore be set aside. Kay et al. v. Grant, 175. Genesee Mutual Insurance Comjjany V. Westmati, 487. Departure from terms of contract- ■ Quantum meruit.J — 2. Wiiere tne m lCT. VRRIERS. of std^c-coavh h^ttrr co/ifa/fiing -Held, per Cnr., projirielor (who rforciinvint; the iiiilor the facts of of a letter con- note. Jlolman RULE. iENT, l. to annexing it not necessary in le atnsi'iU rule, to )urt may allow it onrt at the trial, Is non |)rodiic.tion e (lem. Fulmcr v. BLE. ion that he had I not. entitle him lie (iilmi-ssion by respass with two prodiireij !it the !ie warrant under I tlie tresjiass, is L'e as aL'ainst the ?onstai)le to claim le ()th section of . 41'. Kalar v. S. \CT. ijin — Lien."] — 1. legislature could g a lien on Icijal nd consequently Dunded on sncli void (lb initio, uruttce Comi)any rms of contract- • —2. Wiiere tne fOST!». COVENANT. terms of a sealed contract have been When notice of trial irresrular.'] BO far departed from as to put it out of 2. Gnwd River JVaviiration Co. v. the power of the contractor to sue j Wilkes, 124'9. upon it, he will not be precluded, after j 3. j,„|gc of Counfv Court cntiUcd hiH employers have accepted the work, I to costs when rule discharired, which froin brins/n.^ his at^tion for the value j ;, ^.g, .,i,„„.d ,„ ^.n on him to answer, of the wo. .V do- \ Turley v. Grafton p^trd v. Carrall, 274.. Road Company, 579. ^2 .]■ 23 Car. 11. ch. 9-Banery- Potter of judiTc to iiillihold ccrtiftcatt CONVEYANCE. Sec Covenant, 1. Contract of conveyance cannot be added to or varied by a parol agree- ment ] — Held, tlini the assignment by D. B. to Bank U. C, could form no legal charge on the boats, for a contract of conveyance cannot be added to or varied by a parol agreement. Cay.'eij V. McDonell et al., Assignees of Bet/tune, 454. for full coslii.]~i. In an action for assault and battery, where a battery has been proved, the jud«e neverthe- less has a discretion to withhold a cer- tificate for full costs, under the 22 and 23 Car. II. ch. 9.— C«/y v. Trotter, 324. 12 yic. ch. 81, sees. TZ, ISO— T. '--,.. " , , ' ' ^ ,. • ,• I I this condition, thai he has I'xocutci }uaslun''r Draper, J. and Hums, J. of lessee ]—i. To an action in cove- (K'>biiison, C. J. dissentiente) that this nant for rent, a plea relyin-; on the l'"»^''" f"iiiiiig, as any other mode of piaintiiV's acceptance of assignees as 'Ysinance, under the operation of the his tenants,and on his receipt ol' prior Statute of Ise^^, '11 Henry VIII. ch. rent (not the rent sued lor) from them, ; '0, if it did not, from particular consi- as relieving iiim (the lessee and defen- , J^^rations applying to ilie lunatic only, dant) from any further liabiliiv for rent ' ^'t'^' ''"' real esiaie /// /liin, yet that it subseipiemlv accruing, is a "bad plea, "cveitheless cieaied a use which, on as being no defence to an ai tion on an ^/<'^' '/'"'/' ^>f t/'^ //^rt'/^/f, was executed express covenant. Siinsonv.Mcigi//, '^^^ '"« ''^'i'"' »i"' '''"l therefore a deed, 271, I made by the heir after his de.'ith, would For ^ool titk.]--o. See "Dam-'!*'' V''''' '''' ""="";^ I' ^'^'•'^' '•xecuted -* liy llie L'lniiiec o| ilie crown. JJoe Sill/'/' r V. Jl'is'irs it <(/., "if). (1 I'll all e of '"roini — Ifmrliv may frriit jiossefsor ivilliout title ] — 2. The L'rantee of the crown \\n^ the same liyht as ihecrowii has to treat the pos. sessor without title as a trespa-iser; he is not disseized iiy the continuance of a |)ossession llial hii>l]eeii htld wrong- fully as against the crown. Doedem. Charles v. Cotton, ',il'.i. ages," '2. Who represei/tiitire of covenaiitev for good ^ — As to riLilit to iiritierii nirnihst PnrnI contriicts nnil contracts inuler , , , ' , /^ , ,, .,.,11 ■ »T o iiiid roiiilriiiii ■j.o'i'l.-. II mil r iirt seized sem. eiiunllii vitinleit fiii )riiii(i — ','. , n t i t a i -\ , jj / , , ■ , r 1 ■■ 1 • , 1 .1 '"/ eollert'ir fir fare art iiiisseil \--\, /wc/, iliat where Iraud IS ol)|ecteil, the ,i'n m : ,• . i i i ,. . . , . II-. . , Where a collector ol customs had made distinction betwein sealed insiriiments' .. i ■ \, lo.-r i , ,11 . . " seizure ol iroods in May lS+7, and and eniiaijemenls hv simple contract .-i i i • .• .• •. • .oio ... , .. V, ..,' ,-,.,, ., bled Ins inloiinalion upon It in 1848: Will avail nothing. Simthv.DUtnch. --■- ' 589. Jle/d per Cur,, that such goods might be taken to be as conileinned iroods, if no claim should lie made withir. CROAVN (iRANT. ,n„ntli iilier notice of the information Statute of Usrx—Hoic far appli- had been published as the 58lh cleuse cable to patents front the crown — TAcl of the provincial statute 10 & II Vifl. kI3 i;r a lunatic, how tented in his heir ik'fiih ] — I. The liy letters patent I trust lor his son itic, Ills heirs and i.ive and to hold ill), the said John assiiftis li>r ever:" J. and Burns, J. cntiente) tiiat this ny other mode of (• <)|u'ration of the Henry VIII. ch. n particular consi- Ifi I lie lunatic oidy, in him, yet that it (I !i use wiiicli, on iittic, was executed I tliereliire a deed, tor his ileatli, would t a do(nl executed the cnnvn. Doe ft III., .");'). ir/i — Ifiitr lie may loiiffit/r]—^. The iwii ha- the same has to treat the pos- as a trespa-^ser; he lilt' CDiitiiiuance of ris iiei'ii htlil wrong- ■ crown. Doedem. roMS. UMNG, 2\; OS,- 11 Vic.ch. 31, / f(/ jiraard ri II lid I r net seized f (let /Kissed li'-l. )rcusl(iins liad maJe in May 1S47, and m upon it in IS+S : at such floods might •otiilenined uoods, if he made within of the information i as the oHlh ch.. DEBT. DISTRESS. 9 ch. 31 directs. Davidson v. Brethom, 219. Invoice — What due entry of goo(ls.'\ — 2. Held, that the entry of {i,oods on invoices not the invoices of sale lo the importer in tiie country where he pnr- chased (which are not such as the law requires him to produce) and tin entry without the oath tht! law requires, is not a due entry, necessary to give the — Acturti of debt does iwt lie on 'mart- gagc alone.'] — 2. Where the proviso in a mortgage is a mere defeazance that if the mortgagor pay the money hy a certain day he shall have back his land ; but there is no covenant to pay the money, and where no evi- dence is given of a loan or debt, an action of debt will not lie. Where there is evidence of a loan or debt, of riL'ht to unlade. T/ie Qi/een^cx rel. \ course a promise to repay it will be JItty. Gen. v. BnuiskiV, 546. | implied. Hall v. Motley, 584. Poirer of colonial leirtslafurc.il — 3, lleld,\\\c colonial legislature has [jower to im])()se duties of customs, to punish infringement, to enforce ])ayment, and to resort to forfeiture if necessary, lb. DAMAGES. Sec Sheriff, (i. Measure of, fir breach of covenant,] — 1. McCdlliim V. Davis, loO. Covenant fn- good title — What the damuges.] — 2. In an action for breach of covenant of good title liie measure BEBT ON BOND. Plain intention of jmi-ties must govern,] — Baby v. Baby, 76. DECLARATION. Averment in.] — See" Pleading," 1. DEED. See Plf.ading, 1, 5. Mutilation of.] — 1. If it be clear of damaires is the a nount of purchase , ^^ ^,,^ ,a,isfaction"of a jury that a deed, money paid, w,.h,..t..>est from time of I ^^^.,^.^^ ,,^^ afterwards had its payment — the plaintilV, however, if dispossessed hy an ejectment, is also perfet seal and signature torn off', or has be- come otherwise mutilated by accident, entitled to the costs ol the ejectment ^,. j,^^ ^^.^^^ ^,. ^^^^^^^ ^„,.,, ^„„,aii„n suit — no allowance to he maile hy the jury (iir the |)Iaiiitill"'s //?/;;/£/ir/Hr«t does not render it invalid. Doe dem. Ellis V. McGill, 224.. Excej)tion to execution of,] — 2. See "Pleading," 15. Deed hif reversioner not in posses- sion,]— 3. A deed given by the rever- sioner is good, notwithstanding that at the time it was given another person, holding under the life estate of the tenant hy the courtesy, was in actual possession. Doe dem. Burnluim et al. V. Bnurr, 607. DISTRESS. See Landlorp A\n Tenant, J.— SURRE>nER. 10 EAStMKNT. K.li:CTMK.\T. ill DOWER. Tenant flendinsto>il tniips prist-l — 1. AVIiorc tlie liiisl):iriil dii-s sri/t'tl. unless tlio U'lKint sued imidwiT iilciuls tout ti'Dij'S ]ir/,st,\]\i' (li'iiK\ii(l;inl niiiy recoviT (lamiiLH's willnnit scltiiii; )i)i'lli or slR'wiiiir u (k'nitnul. Einprij v. LoiuLs, 374. T went If years' n.\ iin'ans ot" a dam erected on Ins (i\\ II land, is |)rotected by our sialiitc 10 .V 1 1 V, ^ ^ . . . , lllii- land llood.-d hv ll'hrn htalHir of Lim,l,tlw„!^hc.,^^./^^^^„^.^, 1^^ ,1,,. ( gats U) run in ,lo,rrr.]—-2. The court i „,.^..,„.,. ^ „,■ ,i,^, in tins case conlirnted tlie opinion ox- H (WA// 3\s pressed in (lerninn v. (Irnoins, (i [', ' ('. R. llf). tliaf tlie at'tiniHir ilnweris iiiiiilalions l cii. .). (i/i/iouuh ilie liack-water dur.nu the eriud. Bowliif within our Matnle o: W'lii. IV. cli. I, and iiinst he hrouuht within twcniy vcars afli^r ihr drath of the hiishand. MDuiKi/tl, (^n-lilmi-'j v. Mcltiliisli, :;ss. TJl/Wl of irithiir's piiss(SS/iit/ OS lo coninuneenii lit iif li'-, iiii/ ///y/N.J — IJ. The fact thai the widow lias been al- lowed III remain ii' llif /ms.siwsini/ of her hiishamrs land, in a jieriod close upon tweiitv years tioiii the time ul' her hushamrs death. niaNes no dill'er- ence as to the ni'ce'<-;ity slu' is tindi-r of suiii^' (or her dowi'r irilhin the twenty years alter his death. ll>. Within' s riuht /o.]— !•. When* ti will expressly declares thai wliat is given to the widow is intended to be in lieuof dower, and where llitMvidow accepts it, she is as iiiucii hound hy her election in a court ol' law as in equity. Witlhnl v. JliU, fiCi^. 2. A widow cannot so liir elect to ,S"' CnVK.NA.i. -("(lNSr;\T Rl I,K, I. — Hi;m, I. — lV\nrNKUsiiii>, 1. iJriiii'iiil iif /Kisscsst'i/t,^ — 1. See "Parlneivhip," 1. (tiniiilittii tiiiil ill I'd lit — Wlio to sue in fj'rrtiiKitt.'] — '2. A uuariiian ap|)ointed to an inliinl, under our act S (m'o. I\'. cIi. ti, sec. •!. may liriiitr eii'clineiil Tor the puiposi- ol' trying' the inliinrs lille. Snuh/e, that an eject- ment may also lie bnniLdit in the name ol' the iiilant. Ihir thin. Atkinson v. MrLniil. WU. ('urriKinlar for title, liolilc for rnsts iit.^ — li. C/iirL v. Kutiertson, •AH). Mistlike in. i-onsmt rul<\'\ — 4. f'ieclmeiit tor north hall" of a lot of land, Det'endant liy misiakc entered I into a cons^'nt ruk- lor more than he i iisseiled title to, and veiihcl wa-; taliei\ auaiiisl him. The lease he intended take under a devise as i„ enter into ,,, ^,,, „|, .,j t|„. ,|,i,,| ^,.,,^ H.rsonih hall" jxissessKjn of the whole property out „,• ,|„. |,„^ 'p;^,. ^Vwrf irranted his of which she claims dower, and vet „„,„oi, i,. he alloweil to del'end for the Blie for her ilower, when lliat was part |.,„iti„n of the north half he claimed of the proi>erty expie.^sly de\ ised lo i„ have heen leased to liim. on pav- hcr in lieu of dower. „„,,„ ,,|- ,.,,^t^ ^^.|,|„„ ;, imiiith. Dor [Sep thf plf'.i ill tliis rasi> Mini ilir> applira- i I loll v. Slicnnnii, .'cJS. bility of lhi« principle 10 Mi,l,i,l..a. I //,. Ejrr/onnI- nrfnnlon/ prrrentnl — • — \l)il lits mm net from srlliiiin up oil- rA^PATrvT \rrrse l,llr.y'\. The defendant, heini; hVc liiCKNSK, 'I, sor of liie plaintiif of his own accord. It. Tttnning A (k-li'iuiaiit twenty years li: •)!" tilt.' action, |ii|)(iii lilt; land |r ii (hini L'lvcted loti Ttcd l)v our Jfli. .'). ii/iliiji(i:h |lln' liilck-UJIlLT diir.n^ the •n>Ki. JiinvHuf J XT. "<)NSn\T Ru.K, ■im:i{siiii>, J. ..'///.] — 1. See /;//// — Who to -V A :;iiarili;in It, nndt-r Diir act •. -. may hrin^ M>M'ortiyinL' liiu '■, thai an t-jcct- iitrlit in the namu <')ii. Atlunson v. '//A; /i„hfr. fm ^ V. llolirrtfim, »t ruli\\ — 4. Iiiiir ol' a lot of niisial,!' entered r more iliim ||,> eidicl was laiien i.-i'i'i''"liliil srttiiin: yp lul- jerendant, lieini; \i-\sl to ihe les- liis oivn accord. E.^JTowni,. EVlDENCfc. 11 made aa oHer to purchase the land, j decision act as an estoppel, being in a and laado a payment on account : ■ cause which was m inter alios acta. Held, that lie was thereby prevented \ Mclntosk v. Jarvis ct id., 537. from maintaining an adverse posses- \ Estnppd hif maWr of rccord.l~4. sit.n, or pultmg plainl.tr to further jyoof; A judgment in a ft.rmer action is not of title. Docdcm.Boidtonv. Widkcr, admissible as t^vidence in a subsecpient action not between the same parties. Doc dcm. Bun- v. Dcnison, 610. 571. ERRONEOUS SURVEY. Poivrr of Court to stay ihc issttr of EVIDENCE. hob. fac. 2>oss.]~V[wn the facts of: Srr AnBiTRAnoN and Award, 1.— the case (jfiven at lennth below), it was held j)cr Cur., that they had no au- thority untier the l:2tli clause 5!) (ico. III. ch. 14, to stay the ])roceetlini.'s until the liefendant received the value of his improvements, or until the plain- tiff conveyed the land in dispute. Doc dem. Short v. Jhm. 1 1-7. ESCAPE. Src Shijkiff, 6. CovRXANT, 1. — Grant. — Hi:ir, 1. Maucious Prosecution, 1. — Es- TOPPEF,, 4. O/'slriiction of pifti/ic roffr/.] — 1. Snn/j/r : That a gnte bein^ kept across a road is in>t in any east^ c(iiichif:ivr. as tt) the road beitii: a public one — the gate may have been there for the piir- j»osc of preventmo; cuttle straying. Johnston, the y(iHn / ^ t r 11- ,„,..„ , ,, , . I>d from. enym!r'_ji /,,,,, far\vbnissil>lc in rrulmre payment ol notes, when they had ta- ,,, ^./,„^.„.^, ^,^^.,.,^^ „^^ /^ ■, g^^^^^j .. ,,,,. ken a mortgage as security ^^^'' ^\^^^\ f„laition ofa-jcnt,a:icnthcin- alirc.l payment, and under a power of s^nl ' ■_4, 7/nV/;«r C'/,Hment.l^ — 2. Ilehl. that plaintilV was not estopped by his assignment to M. V . C. iVom tn-atini! these defendants, at It.'asl as izinlty of a conversion of his projierly. f'ayley V. McDoncll ct al., Assignees (f Bclh- unc, 'tr)4. A cause tcliich is res inter alios acta, cannot art as an is/dji/ii/.] — A, Ilehl, that the slierilf and bis Miretiesare not iience amiiist his surely, sued on his bond for a ileficiency in the agent's aecoiiiiir-. l\ -ric v. Jones ct id., Ex- ec/tti)rs,i\-r., lit J. To connect pUmitiff in, original suit icitli. writ.] — ;». To connect this person with the writ, the writ itself should lie produced ; t)r, to let in secen- tlary eviilenci>, the writ must be shewn to have lu'eii lost, or notice proved to tuo.-ile nartvto piodiiee il, unless 'PP P' P concluded by the tlecision in another i the deftMiilant has adopted the arrest suit in the county c,ourl with reu'an! to 'as made at his instance, as liy filing the fact of the arrest being made. n-. atlidavits in justification. Thome v. estoppel being plcav.ed, nor could such j Mason, 2.S6. 13 EVIDENCE. FOKKIGN COHI'OHATIOX. ii' si! Of jnotest and presentment. "l — 6. not he eiujiiiied into on the traverse rfe The eflect of 7 Vic. ch. •!•, sec. 2, is to itijnria. yet the truth of tlie assertion make l\\c ccrt/Jiciite {>l' i\ uotniy ])ron(i tliat he assaiih(>(l him in. order io make fade evidence of the protest of a liill him (iejjart, may l)e called in question, or note; and of sec. H, to make the ,Dti.vis v. Lennan et uL, oDO. production of a protest, jnima facie evidence of presentment, Codd, v. Leu-is, 21-J. PrcsinnjnioH >. Hdaennanw ,, ,• ' , , -, r. ,- , ., e, , .- ,,>, ' nefusiif to io/nry.\—'2. Lnder the Stronu; and luiiun, Zv\. \ , . , .t n \'iii i i ^ ^' I statute 21 Henry V III. ch. •»', one or Contents of wi/i — Onus j^yotMudi.]' mm-^i of sevi'ial executors has power —8. See " Heir," I Trespass — F/eiidini; — Evidence.^ —9. Trespass dr ionis asportalis — Pleas — 1st, not iruilty. 2nd. iroods noi property of plaiiiti If. Held prr Cur., that under tliese pleas, the defendant dcsiiini; to uive in evidence that tin to coiivev wiien the others decline to act. Doe dcm. Ellis v. Mrdill, 22-t. What siij/ieirnt /iroif if nfnsid to art.] — '.i, A written renunciation, lli(iui;h not sealed, made hy one or more executors hefori^ the surroiiate, and ])roiluceil Iroiii his dllici', is sulli- goods helonsicd to a third party, and i cient to entitle the remaining' execu- that nfouitk oaity had a ri-jlii as land, j tors to act under 21 .Henry VIII. ch, lord to follow and sei/o these y;oods, l. II'- and that he, the delemlant, deri\ ing his authority from mw-hfuirtli party, was justified in havinu; seized them, such evidence was rightly rejected, and that FELONY. Rialit ofpi-iviite person to arrest for , , . , , , , • ,, 1 1 '''■ !^upposril feloni/.] — McKenzic v. the deAMicc shoiild he specially plead- (j-f^^^^^ ^^j^; ed. Tyson v. Little, iJi. Ufider j>lea of non tenitit.^ — 10. Under the plea of " non tenuit" evi- dence is rightly received to shew that FIERI FACIAS. Ilent.-serk not liaJilr to seizure V7i- the defendant had parted with his estate fY'-& ^"'"'^•''}—^"^'i'"^^ ^^ ^'"'■"- to another person, and was no longer o/iit,^^ — •. Lewi s V. the plaintid's landlord. Brooks, 571) . Trespass — Replication, de inju- ria.'] — 11. Though the motive and in- tention with which a defendant insisted on the plaintiH"» leaving his house can- FOREIGN CORPORATION. State of jSeiD York Mutual Insic- 7'iince (^iniipany — Foreign eorpnrn- tion, right to sue in Canaila.\ — 1. The plaintifl's were a company exist- JATION. tlie traverse rfe r tli(! Jissertion (inlrrXo make vd in question. , r)!)9. ADMINIS- IS. 'ATKP, 1. «• ill rrpicsrn- To (Ic'lennino lor on tlu" re- : till' iiliniitills ■i'p(lr//i/,nsvx. I now is, would \ored iu' assets /. rf nl.. V. VrO' 2. Under the [. cli. 1', line or tors lias power icrs (icdiiie to ,-. .l/r(//7/,122-l.. "f "J "Ji'Sd/ lo renunciation, aile hy one or e the sunofrate, < olliec, is sulli- nainin^r execu- Icnry VIII. ch. ■s())i in arrest far ~3lcKrnzic v. IAS. • /o seizure ?/«.- ugu/l V. Tur/t- D RATION. Mvlual Ji/su- rri^H vorporn- (Jannda, j — 1. company exisl- FHAUDS (statute Of). ing in, and charterd by the State of New York, for tlie iun|)i>seof earryinj; on the business ol mutual insurance in tlie rounty ofCk'nesie. Their charter provided that ihe company should ha\ c a lien by way of m()rti,fa;;o on the pro- perty insured, and upon the nt;ht, title and interest of the assured to the land on which such i)ro|ierty stood. The dtdendant was a British subject resi- ding in Canada, and the contract was entered into in Canada. IhUh that the company, iVoui the very nature and object of its charter, was incapable of carryingon its business in this province. Genesee Maliml Insiinmee CuDipa- nyv, WcstiiKtn, 1S7. 2. (jiuere.: \Vheiher any Ibreiun corporation can under its forei>;n char- ter assume to carry on business here, even of the description contemplateil by its charter \ lb. GRANT. 18 if the plaintiff would give up his claim against A. B. lor 4t)^ he would pay hi;n 3;V. out of the proceeds of a cer- tain rait when it would arrive at Que- bec : Held per Cur., that the plaintiff could sue the defendant on such agree- ment upon the common counts, and without pioducing proof of the agree- nuMit in writing. McDonald v. Glass, 21.r). Ap-"enient vat to be performed irilliin a year.'l — 2. Semb/c: That under the tiicts of this case the objec- tion, that the atireemcnt upon which the plamtilV claimed a right lo the use of the defendant's cattle was not one to be perlbrmed within a year, and so required undei' the Statute of Frauda to be evidenced by writing, was not tenable. Scauler v. Haley, 255. FOREIGN JUDGMENT. Sec. Pi.EADINC, IS. What (letinn lies mi..^ — 1 . Assump- sit lies on foreign judLMuent. McFar- lane v. Dirhishire, 12. What is.'] — 2. All judgments are foreign judgments which are given by | GRAFTON ROAD COMPANY. The Grafton Road Company have power, under 10 & 11 Vic. cli. 93, sec. 35, to make contracts by parol. Tnrlcy v. Grafton Road Company, 579. — ♦— GRANT. Siirvpyor GeneraPs return of a lot courts whose jurisdiction docs not ex-j ^j (/,.,,^^7J!„y^ /b/- ;jrant — Evidence to tend to tht! feriitories governed by our laws. lb. rebut lids return — Elfect of erroneous return, vhrre land sold for taxes.] — When the surveyor general returns a FOREIGN LEGISLATURE. ""t «'' 'f^"''' ""^ ^l*?^^ '''bed for grant, proof ^^ . 7 / . • that the land was not m tact so descri- ISo power to make a laie ireatini^ . . . u . ,c „ .-..■•,. r.r.^;fi,-,» nn,t i ,.,■,< / 1 l)ed must be ol a veiy posiUve ana oJienonle^alestiaeinUimula.]- _^^^^^^^^^ ,.j^^j ^,,^, ^^^^^^ ^.^.j^,,^.^ Genesee MutuaUnsurancc Company ^^^ ^ ^,^,_,,. .^ ^,^^ ^^^^,^^.^^ ^^^^^^,^ V. We.stma7i, 4S7. i ^^^^^^ ^,,.^^ |„. ^.^^^^^ ^^ j,..,,.^. ^y^^^ ..^jn not do. Perry v. Vou-cU, 251. 2. Quairc: The elTect of the sur- veyor neneral havinir in any case er- roneoushf returneil a lot of land as having l)ecn described Ibrgrt'nt, when FRAUDS (STATUTE OF.) 1 in fact it had never been so described ; Debt ofnmthcr—Comrmm aiunts.} and when, in consequence of this error, — 1, Where the defendant agreed that | the land has been charged with aseess- FORMER RECOVERY. Sec Action, 1. ^i! % II HEIR. IMPROVEMKN'IS. m - 1 m iriRnts, nnd l)oin<; rcturiietl in arrear lius been sold I Ih. GUARANTEE. Attortdcs' liuhiiitti to s/irri/f on a HIGHWAY. V2thc/aiisc of Ilidnra}/ Act, 50 Gm. in. c/i. 1. — ^l.s- to irliiil iniisti- tu/rsti pi/fi/if rodfl ntnuin'Ji through liiilidii, /(Didsi] — Tlio l'2tli cliuise of tlic Jligliwiiy Act, ;")() (Joo. HI. cli. 1, , ^, ^ , ' . ., riinnot he taken to mean tliat eviTv ^ ,. ' . 1 .1 l)vo-road, or short cut used l)v the In- ments Ironi atioruit's wlien tliey mean ' i? _ . ,, ,_; to hold llieni liable, in notliinir to (.o with ONce|)i proti'ssioii- ally ; thouiili where ihe attorney has verbally a^reeil to indeninily, the Court, if the ai^reenn'iit is adniiiied, will en- force it. la re Corixl v, O' lirilly, in the case oi Maalom/l v. Lirniifjir. 130. Guarmitrr — ConsirJcratimi — AV- cess/ti/ (if (I'Tf'p/dtirr.^—'l. Jh/d, on the iruarantee set out in ihe siiiienu'ni . • , (lians across the plains or Hats, is to lie cases thev have i i r i i . i ■ i esiiililished as a permanent Inirliway ; ft only m(>ans that roads which under the [novisions ol' that act are to ac- ;ut;h Indian hinds, as in other |iar1s of their course, rdtlioii:j;li (hey iiiiLdit nol he (as to such portion of llieni) piihlie allowances iiiaili' in any oriuinal survey, nor hail am puiilic inonev been expended or of this case: Isl. Thai it did nm ini- ^,,,„„,. |,,|„„. p,".,.i;„.nied on them. port a i)ast consideiatiun. 'Jmlly. That it was an actual L'liaraiiirf, and not a more proposal i(M|uiiin:; accept. ance to render it bindinir. ."{rdly. That tiil'erini; a inoitLiaiie >iibject to t!wo prior morliiam's. (which were tiivi'ii ./;'/// //r.s V. Jioi'ii., JSl. IMPLIED PROMISE. Where there is evidence ofa loan or moreover after the -uaianlee). was nol debt, of course a promise to repay it such a valid inorliiaL'e as (he guarantee "''" '"' implied. Hall v. il/o/Av/, 584. imported. JniLins x. Rntfin,i\'l^\. ' __^ GUARDIAN. See Ejectmf.nt, 2. Hi:iR. See PARTM:Rsmi>, ]. IMPROVEMENTS. ' DnmiiLSis fur, not laiiiiill' claiiniii:^ cs hir tliat his ancestor left " u-i/f, does imt disable the plaintiirfrom reroviriiii; as heir, until he ])roilu<('s or iiives evi- dence of the will : it is for the deli'n- dant to shew the contents of the will. JDoe dem. Atkinson v. McLicod.'i^^. 111. .'h. 1-1.. :iiid -J V.c.ch. 17, if the jiiiy lliiil thai ill'' jilaiiititV is holdinu aci'iirdiiiL' lo the po>ts planted al the li'diil aniik's ol' his lot in the iiriiiiixi/, M(rv(i/. The iKlt'iidaiil in such case cannot be said lf> ha\e settled on ihe land in coiiseipienee of an iiii-kiltui survev. Dnr dcm. Montr \ . Camp hdi, v^. 'jinraij Act, 50 to irltiil rousti- 'lUltlliX tilt oil i^k l2(irc!nustM)f Coo. III. cli. 1, R'iiii tlijit every iisfd l)y fho Tii- iir flats, is to ho iiicrit liiL^liway ; ul-. wliicli iiiitlcr act aio to ac IcL'al liiuluvays 'i'i;al fliaractcr, tliroiiL'li Indian s i>r tiit'ir course, i>t lie (as to such lilic ailovsances survey, nor had •II e\[iciiii(^d or iii'd on them. t. lOMISE. eiic(r of a loan or mise to rejiay it V. Mor/cy, bSi. [ENTS. /A//rrv/.]-\Vhcrc iiy j)iii|iose had il" a coiieessioii, euiployei! lias his wnivey. and lli'd (III a lot as . tiie lirleiidaiit 10 oiiliih'd Id Ilia llio acts Tilt (ieo. . ill. 17, if the iililV is lioldiiiii |ilaiiled at the ill tlie iiri'^'niiil, III in siicli caso e settled on the III' an iiM-kiHiil hmlj' \ . Camp l.\--i'n,\N<'i-;, JOINT STOCK CCMl'A.NY, \b INDEMNITY BOND. Srv Pl,K\niNG, 2. '■ sued upon it — thny coukl be compelled, however, iipmi the delect heinj;: no- Whnt is 110 firfcicr to.\—l. It Is '''^''•'' '" ">'^^^*i"-^^' 'i valid policy of the no defence to this action to shew that '""1'^''' ''"'»'' "'"l t'leir by-law would the sherili; instead of pavini? the claim *""*'l' '''""^ ohjectinL' that the policy of the parlv indeinnified ai^ainst after he paid tlu- execution creditor (tlie '"'.'• . ''''■'7/ "i"' -f''^?/ v. i>e««;« oblisreo in the bond to the sherilV). ■^"■''''-'- '\("/,""^ ^''''■'-' ^'"■"'■'' was not in liicl executed bef(»re the loss. ZV'/v// and Pnry v, I^iwaistle ranee chose to pay the surplus j)roc.ccds of| (-'""'P""!/> ^^'•^' the sale to tlio assiirnee of the execu- 1 — • — lion debtor since a bankrupt, and so; ^^^^,,,^^^(3^.,^, JUDGMENT, was dainnilied ol his own wroni^ ; the Iiwipihir //rcfssiiij/ hi si^iiin:;, and ivhuLlL slKJu/dU:] — See " Practice," I sheriir cannot be called upon to treat as valid, with respect to those parties, the very claim against which he has been indeiiinilied. Coibcil, HI 10 iff, \ . tocttit' Wilson HoL,'l'l. l^^Uh.. /"<-,.», „/ ,..;,/ ,,.^, „. , . „,,. 7 .T Cose for orcrjloirintxhiiiffhi dam- o 'PI I •,«• •• , ,•,, --^ \77n II" lai fir iKu/: — \V hut tic issue on — -;. Iheslienli, 111 an action ol ttiis ,, " , ,. -, ,-, /. 1 1- 1 • .-.I I . 1- ,1 'tic plcaaiiiiis.i — Lase tor damniine; Kind, IS entitled to recover Ironi the j , ,' -^ 1 , • •«-•« 1 i I hack water on the plainlill s land: ' IIc/i/ jxr Cur.. lh;\i upon the plcad- iiii!s(as ^ivonal!eiii.'th below) the issue oblifToe in the indemnity bond the costs for piittin:: otV the trial of the cause against himself, on account of the ab- ssence of a material witness. Jb. INDIAN LANDS. Sec. 1IH7HWAV, 1. INFANT. See Ejectmknt, 2. was not wliellier a dam which had been two feet hiiili was made by the del'endanl, three feet hitih, or, being made by others of that iioiy;ht within twenty years, w.-.s wrongfuily continued by him, but whether the prescriptive right, whatever it miiilit bo proved to be, had been e.\(!eeiled within twenty years to tin; plaintilV's prejudice. McXdbv. AdumsoH, 119. INSTRUMENT. Words irliick pi... no interest in -TOINT STOCK COMPANY. land.]— Sue " Land." Jlwul Act, 12 Vic. ch. 84..— iVcm-!- ^ siti/ of couiji/yiui: icilh, conditions of IN SI) llAi\ L h. , tYj//,s..]_It is onlv when the amihlions See Money Paid, 2.— Marine PoLi- mentioned in the Road Act, 12 Vic. CY, 1. i ch. St, have been \n\\y iindin fact Fire polirif of insurance — Want comiilied with, that the persons asso- of 2)rcsii/cnt's shjiwturc— lis effect.'] ciatod together can be incorporated, —Under the lOlli clause of the titii , ami sue (in the short form jriven by the VVm. IV. ch. IS, a policy of insurance act.) stockholders lor the non-pay- of the Newcastle Mutual Fire Insu- ment of calls ; and [[rid j^r Cur., ranee Company, simied by the secre- that, upon the facts of this case, the tary. but iioi by ////• pro'^idont, is invalid, plaintiU's, not having Imia fide paid in and the company could not be directly, the six percent, on the capital sub- n' 16 JUDGMENT. JUHORS. i 1. scribed, or rcgisteroil the certificate as the act required, could not sue flic de- fendant iis a corponitc coiii|iany iiiidor the act for the non-|iaynieiit of calls upon his stock . Nio^uni Fii/./s R(Hid Campany v. Benson ; Same v. Ham- ilton, 307. JUDGE. Tmoer of, at Nisi Pnus."] — 1. See "New Trial," 1. Power to amend record at Nisi Pnws.]— 2. See "Record," 1. JUDGE OF COUNTY COURT. Sec Mandamus, 1. — Costs, 3. Power to extend time witliin which security for an appeal may be tendered under 12 Vic. ch. 06, bee. 11. Ford V. Crabb, 274.. for th'- defendant, and the plaintilThas ni» Vf-rdict on any issue, and lias no daniiiire ;;iven him by the jury, he cannot ask for \\.\i\i^\\\Qn\.non obstante. Kerr v. Straut and Bradsfuiiv, 82. lleiiistry of, hinda hoids.'] — 2. Un- der the oj)eration of the 13th clause of our Renistry Act, 9 Vic. ch.34', lands are bound ii])pn the registry of the I judgment, the mistaken reference in < the clause to tin; dockettiiig of judg- ments in England being considered by the court a more false illustration of \vhat was plainly provided for before. 'Doe dc/ii. DouiiiUl v. Fanning, 106. Fntrrint: lip jnd'jnient on dcmur- ! rer."] — 3. See '• Practice," l. JUDGMENT AS IN CASE OF NONSUIT. Jicdgmcnt as in case of nonsuit, for 7iot going to trial, the defrndanl having himself olijrctrd to the notice of trial l:^ irrrgid(rr.'\ — Where the plaintiff made a mistake in his notice of trial, and the defendant, when he was too late to eive a iVesli notice of trial, pointed out the error and reliiseil to waive the objection, and then, be- cause the piainliir (liil not go to trial, moved the court in banc, for juiigiiient as in case of nonsuit; it wus lle/d per Car., that the deleiulant being himself the immediate e;iuse of the plaintiff not going to trial, he was not entitled to judgment as in cast- of a nonsuit. Watson v. Strong, ISO. JUDGMENT. See Vaiiiance, 1. — Estoi'imm,, k Non ofistnnte veredicto.'] — ! . Where there is nothing but a general verdict JURISDICTION. Officers of Her Majesti/s ordnance — Tlieir /idhi/itii to lic sued in our courts in tlieir collective caj>iicity.] — The officers of Her Mnjesty's ord- nance, coniposinir a department of the public service, existing in England, cannot at the common law be sued in I our courts in this proviiu-e in their col- lective capacity, for an alleged culpa- ble^ negligence — the remedy against tlieiii liir any wrong done liy the orders j or omissions of the board as a Ijoiird, i can only be by application to the Crown. Lane v. Ojjicers of the Orel- 1 nance, lOS. I _^_ I JUSTICE OF PIL'VCE. C'ons/(ilil/''s admission Ikiit lie had. their irornuit, no eriilciice (i'.:y t''« j"ry, he ^nt 7io>t ftbstantc. '(uhhaiv, 82. hin(h.1—2. Un- tho 13tli clause Vic. cli.34', lands registry of the II roU'roncc in :;kt!ttiii^'igne(l'by'thcp<;7^ ''"it f'c wovJf P''ovoil JJ'l not support fZe/m-, or it must be bv act and ope- ^ '^ wonls charged. MclSaught v. ration of law. Doc dcm. Burr v. Allen, 60\: Denison, 185. i LEASE. See PuoFEKT, 1 ; Pr,R\r)i.\G, 11 ; Slkiu;ndi;r. Surrender of Icaxc — Statute of Frauifs.] — 1. The sinTendcr of a term must, under the Statute of frauds, he IVIirn. lease ran he said to be snr- rendcrcd hi/ oprratiun. of A//r.] — 2. The giving up and cancelliiiir the lease by the tenant, though not of ilsilf a Burrerider of the term, is yi-t a ciiTiiin- slanre, and a strong' one, to be consi- dered in connection with what was done further: J £i Id per Cur., that the Bubse(|uent comluct of tlie tenant in this case (as mentioned in the jutlgmciit of the court) must be taken to be, on LICENSE. Mandamua to compel magistrate to reroke a certificate of license re- fused — How suck application should ho made.'] — INlantlainus refused, which hud been apjilied l()r, fur the purpose of directiii:; a inngistrate to revoke a certificate granted by him at an ad- journed Quarter Sessions, authorising the issue of a tavern license to A. B., for keeping a tavern in the township ^ ili mi • 18 LiaiiTATioNs (statute ok). of Vauirlian, the said certificate of licont^c liavinir l)eoii irranteil in ('(tiitra- vention of a hy-law of the IMimicipa! Council of Van^'liari. '/'//'• Qnrrn ex rd. Gamldc v. Jhinisidc ^- Mors,an, 263. License pi mdcil — Wlini it nut M he sJieie/i to he uiuhr sni/ — Wlicii )int .'\ — 2. Sciii/'/c, that llioiiiili a liccnso given i)y tilt* plaintilV to the ilt'lciiilant not iiiuier ^^cal is iiisiiliicicnt to crcatf an easement, yet that it may he tiiilli. cient, as a license, to prevent the plaintilT from recoveiiiifr damaiies for the erectiini of a dam, as a wronirfiil act. — lloblnsun v. Fctterti/ ct al., '3i0. LIEN. See Contract, 1. Words ichich, only create a chnrse, ' but do 7wt jxtss (unj interest — " llijpo- thccate^^ lucioiini: of the trr)ji.'\ — In an instrument iiniler seal the words " And for securiiii:, &.(;. the said P. P. doth hereby specially hiiui, olilij^e, mortgage and liypothecate the said piece or parcel of land," &c. pass no interest ; they only shew an intention to create a char^'t> oi' lien. Doe dcni. Ross V. I'(IJ)st, fjTk LIMITATIONS, (STATCTR OF). Comme)icniieiit of suit — Ca. re. issued before six years not returned, aliasca. re. issued after.'] — 1. (^an-re: Is the Statute of Limitations saved hy | a writ havinir heen issued h-'fore the expiration of the six years, tlidiiirh thei defendant was not served with such writ, but had been servi.-d with an ' alias writ issued after the six yerirs had exjiired, and liioiiiih the first writ had not been retaravd iinlil after the six years had expired \ llolnuui v. Wciler, 292. 4 Will. IV. ell. 1, sec. 16 — Posses- sion held under erroaeoas idea us to boundary.'] — 2. Under the Statute ol MALICIOUS PROSKCUTIUN. Limitations, 4 Wm. IV. rh. 1, a pos- session inadvertently lield under an erroneous inipressidu as to iioundary, with no intention of claimiiij: the land otherwise than as it was supposed to form part of a certain lot covered by the party's deed, would by mere Ia|)se of time ripen into a title. Doe dein. Taylor et ux. v. Sexton, 2(J4. mfccL of ae/cnouledi^ment in ivrilin^ after tieenty years have ex/jired.] — f). \Vlieii twenty years have passed, without a written acknowledg. ment of title or payment of rent, the title is exlinftuished, and cannot be revived by an acknowleilgment given afterwards. McDonald {widow) v. Mcintosh, 388. LUNATIC. Cestui que 7tse a lunatic,] — See " Crown Grant," 1. MALICIOUS ARREST. Case fur — Wlien arrest is irregu- lar.] — 1. Where a plaintilV, in an action on the case for a uialicious ari(*sf, has been arrested, tlmuirh irre- L'lilarly, under color of a writ and in coiise(pieiic(> of its haviriij issued, he may maintain an action on the case as for an arrest maile by the direction of the person who actually causeil that writ to issue. I'horae v. il/«,\o/<,23fi. Proliatitecaasr.] — 2. The mere fact that the (h^lt'iidaiil was luld by one or two persons that they thniiyht be would he justified in arrestinif the jilaiiitill', otherwise he would lose his debt, is not enough to enable the jtidice to rule absolutely at the trial in the defendant's favor. lb, MALICIOUS PROSECUTION. rV/.sr" of nudiiious prosecution — Erulence of nudicious iuteutio/i.] — Case of malicious prosecution. Delen- danl lost a bird and saw it in plaintiA *ei ECUT10N. /. rli. 1, a pos- lu'lil uiidor itn IS to l/oinitldiy, niniiii|; the hiiid ns sjiipposcd lo lot coviTcd I)y i l)y nii'ie ln|)sc tlf. Doc dem. ■Ir(l}^mrnt in U/ ynirs have eniy years have en ackiiowledg. nt of rent, the and rannot be ledirnient given (/(/ (widow) V. [C. lunalicJ\ — See \RREST. nr/Tst is i/rrgu- ])laintil1°, in an lor a malicious led, tluniL'li irre- )f a writ and in ivitiK issued, lie ion oil tlie ease l)y tlio direction iiallv caused that c v'. MasoH,23r^. 2. The mere fact s tolil hy one or liou^iit he would in:; the ]>hiiiitin', h)se Ills ilelil, is the judiie to rule II the delendant's )SK( UTION. 's pnisroition — 'IS intention.'] — edition. Delen- vv it in plaintiff 'd MATOR. house, who refused to give it up. Defendant thereupon went to n ma{;iy. trate and ftated that he had lost a bird, either oecidenlally or that it had been feloniously taken away, and thai he sus- pected it to be at plaintilf's house. The inacistrate issued a search war- rant, on which the plaiiitilV was hroui^iit before him and disciiained, it a])pear- ing that no larceny was conujiitted. At the trial plaintilf refused a nonsuit, and a verdict was directed for the defendant : J[i/d, on rule nisi to set aside verdict, that there was no evi- dence of malicious intention, and rule discharged. Luc\j\. Smith, blH. MORTG.^OG. 19 MANDAMUS. Sec Lici^^.NSK, 1. Tojudf;e ofroin)fi/ court, rrfiiscd,'] — Mandamus refused to compel the judge to approve of the security ten- dered, after the four days which he had given for such tender had expired. Ford V. Cnibb, 27 k MONEY HAD AND RCCEiVED. . See Principal and Agknt, 1. MONEY LENT. Tovxr to mover monn/ lent, to luiuidotv d(/>ls to a ninijiiDn/, for vorhand tiilxir of ti, nolurc nut var- nintcd hy their charter'] — Held per Cur., that the plainlill' was not jire- L'liuled froiii iccoveriiiL' money ad- vanced to 1). li. for the rujuidation of liabilities incurred by D. li. to N. II. i\i D. Coiii|)aiiy, or iVom enfercing any security |i)r ils repayment, because that company, in such transactions, exceciled the power conferred on it by its charter. C'oy/ey v. Mclhncll et uL, Assignees of JJethufic, IS-t, MARINE POLICY. Marine policy — Interest assured — Abandonment — Total loss.] — Marine policy. A. having with il. (though B. was not named in the mortgage) a mortgage upon a vessel, insured her for ()00/.; the vessel was wrecked and abandoned by the mortgagor, ami the insurers sent their agent to take charge of her ; the loss was proved to be equal to the amount of insurance: Held per Cur., that A. had an interest in the vessel to the amount of the mortgage, and that the loss, under the circumstan cea being an actual total loss, requiring no notice of abandonment, the verdict for the plaintilf could not be disturbed. Crawford v. St. Lawrence Jtisurance Compafiy, 135. MAYOR. Jurisdiction of.] — See "Convic- tion," 1. MONEY PAID. Premium — Recovery of, lehcn once paid.] — 1. When a person has paid a siini of money to another, with a full knowledge of facts, he cannot sue for it back again, on the ground that he paid il in ignorance of the law result- ing from those facts. Perry ct al. v. Newcastle F. I. Company, 8()3. A jiarty, however, may recover back money which it is clear ho must have paid in forgetfniness of certain fads, which had without doubt been known to itim : Held per Cur., that upon the state of liicts mentioned in this case, the assured could not recover hack from the underwriters the amount they hail paid on their premium note, lb. MORTGAGE. Cannot be pleaded as discharge because note given subsec/uently as additiotuU security.]—!. Bank If. C. V. Sherwood, 1 Id. Effect of mortgage as to the viart- gaiie.e\ right of 2>ossesswn.]—2. The common cllect ol a mortgage is to en- title the mortgagee to take possession ^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I |io ''^" IWB ■^ 122 12.2 ^ |d£ 12.0 i ii m IL25 i 1.4 6" '/ Photographic Sdences Corporation 33 WIST MAIN STRIIT WMSTIR,N.Y. MSM (716)172-4503 %^ so MUNICIPAL COUNCIL. MUNICIPAL COUNCIL. at any timo, even before (IcfjinU. un- less ihc v'iy the ion. liiKivlb V. fIIamiilm,2-29. / Ad., 12 Vic. Id — Ritsht ofre- r isle lice of rf)i/>i- II, (iiic 'pi'occaling cr hij Htime.^ — a piivate relator, c. cii. SI, citlicr summons in the }ifo\]\c ' lunship II liroMiuis wiiii'li, ccssai'ily load to ody, or to attack one prucooding, I names of every Qt/ccii ex rcl. ' of municipal wprnpiiatinii of 'nl it ling of niic Cur., that the • Peterhoro' Mii- r the provisions ch. 81, sec. 41, s, appropriating ty funds of the to he expended 1 the said coimty may be deemed : commissioners purpose, iVc., is f the authority I ; and that the it must be made e rule to (juash unicipal council Queen v. The n the matter of 1." In re W. wr(f Municipal NEW TRIAL. NON JOINDER. 21 Toicmh'p co?n7cil prnpry j-)/rii,/fjfl-Ucrm,i\w court miaht perhaps have fo? a local debt due to tlic ohi distflii . allowed tiu; uniciuhutut lo kave been coiif/cil.J — ."). Uiulcr the n.Mh and i made. 2tj, " 17t>tli clauses of Vi Vie. ch. Si, the} Wlirrc vmlict for 'phintifl' just, township councils, and not tlie (Yv^/«^i/ii^;,/ji; crideiicr did, not councils, are entitled lo receive moneyf duo fo tiie eld di-U'icl councils, where dill, nor, support any '\ AVIiere llieeviden. >> dc: the debt is due to the locoHlij. as lor mnkiuL^ ronds in a low nship, iVi'.; and Held. per Cur., tli;ii in this ailiim ihe money sued lor heloiii ship council, and not council, ihc jilaintills (th council) nuist i)C non^ulled. Mtiiii- cipal Council (f llie Cu it rd Counties iif North inulicrlimd oud Darluuii v. Bull and jSIcycrs, 37"). Pourr to (.pen neiv rnads.'\ — 6. See Pieadncs 2-2. Bii-luiit'\—'Z. Wliere llieevulen. vMloes not ^U•let!y su|)])0i1 anyone count in the deihualion, but a verdict has iieverlheless heen ffiven for the plain- lilT, in accordance with justice, the "o ''^ ^'"■' town. I coiui n;ay t;nint a new trial, allowing to the couiity'uho plainiilV to amend. Eiliott ct ul. count V V. Cr. IrregnJ(ir-A]ipIication to set aside.] — 3. The apjilieation to set asiile tlic verdi'.l — not the notice of trial or the service — is correct. ]li, Trregii/ar-Wai ver .] — 4<. The offer by the defendant to reli-r the cause to arbitration, cai\not be considered as a waiver of the ineirularilv. lb. ORDNANCE DEPRTMENT. See Jurisdiction, 1. OVERHOLDING TENANT. Disseizin.] — A tenant holding over is in no cast* a disseizor. Doc dem. Charles v. Cation, 313. PARTNERSHIP. Partners — E(juilahle, and legal title.] — Thouiih a surviving partner may have an equitable title in lands, yet this does not make a demand of possession necessary on the part of the heir of the tleceased jiartner suing in ejectment tipon his ancestor's legal title. Doc dem, Atkinson v. McLcod, 344. PATENT. Parol evidence of a patent.] — A party who had lost his patent for land will not he allowed to give parol evi- dence of its contents ; he must pro- duce an exemplification of the patent. McCollum V. Dads, 150. office, the aftor- wns :»l)sent from 1 did not return >:es,\vlien lie first ', was irregular ; lll^•t I)e sot tiside, e'iilloiiiey should iiiscif on the eve r. Grand River fuluL A. Wilkes, tion to !cf' C«/'., that this plea beintr taken, either to set up in elTect a parol i agreement to discharge A. from his' agreement under seal, (which the court seemed to tliink that it must be), or if not, to assert that surh a conse-j quence resulted from the facts stated, ' independent of the alleged agreement, could not in cither case be cons'deied a legal defence to the action. Mc- Phcrionctal. v. DicLaun, •1\). | Tfesj)ass — Arenne/d.'] — 4'. I'lea of justification in action of trespass bad, for want of dinct mtd posUicv. a\er. meat that a felony had been conimit- led. McKcnzie v. (Jibson, 100. Repliattinn ton p/ra of justifica- tion in trrsj)((ss, dciijiin'j llie tnilli af tlie miUtcr of jiislificntiitn e pleadings, the onus of jiroviiig the allirmative of the issue lay on the delendant. McCulluin v. Da- cis, IfjO. A rcnnent in dcelantlion .] — 0. Tho averment in the ileclaialion that in con.-ideration that the ])laintiir, at the ri'(pRVioftlie defendant, ''would agree" not to |)ut (he said A. II. to costs in respect of his tiebt, he, the said defen- dant, promised, &,c., is in clTect the INC. •.] — 6. Held per (given in the re- e of the defence were not douijle : ,as one of those y miiriitbe aHow- y i-iich facts as lly liave availed in more general V. Mtinivc, 103. it of a less sum judgment rcco' urn, alleging the true (hlt.J—T. , a plea was piea- u; that the judg- pon a cojrnovit in ominal del)t was . as sued for, the 79/., which sum lion of the judg- inrrer, plea bad. 14. this, the proper lint to take is to otion entered on stay ])roceedingg ludirnient. Prin- :vent the defence peof a plea. Id, 7/po/t drfendant (I. (I grxMl right to ol" covenant, as- lat the defendant to convey. Tlio ill he had a good !lie piaiiitill'repli- Ilrlil pir Cur., iin^s, the onus of e of the issue lay IcC'iilluno V. Da- ralion.li—^. The I'huation that in l; jilaihtiir, at the lit, "would airree" A. I}. to costs in e, the said defen- , ia in cfl'ect the PLEADING. same thing as averring that in consid- eration, iVc , that the ilefendant tcould not put the said A. B. tVc, the defen- dant promised, &c.; and }{dd jKr Cur., that thcret()re the averment that he liad put the said A. JJ. to costs, was sufticient. Noad ct at. v. Broivn, 154. Argumentative plea — Lcssor^s ac- ce2}tauceof assignee nf I en seas ten ant.] — 11. Where the lessee pleaded the assignment, and then averred the ac- ceptance hy the lessor from the as. sigiiee of the sum of 187/. I0,s\ not as the rent sued for in this action, but merely as " for the rent aforesaid, in form aforesaid, reserved and made payable :" Held pc ■ Cur., that the plea was not argunienlalive, as setting up indirectly jiayment of the rent. McCulluch V. JarJs ct at., 267. Cffvenant for rent — Dermirrcr.l — 12. See •' Covenant," 4. Declaration — Uncertainty of num- ber of breaches relied on— Demurrer.'] — 13. This declaration, being a spe- cial one on the case against a siierilV for breach ofduly, was considered in- sufficient on denmrrer, from the fault of uncertainty, not in any jiarticuiar breach, but as to the »iumi»er of breach- es intended to be relied upon. Reid V. Carrall, '27;'). Duplicity in declaration.'] — 14. Duplicity is a good ground of exception to a declaration, as well as to a plea. lb. Deed — Execution of .] — 15. In or- der to raise an exception to the execu- tion of a deed, the defendant should plead non est factum ; he should not demur. Burns v. Robertson, 2S0. Indorsement of note to a person un- knmon before action — Demurrer to replication] — l(i. To an action by the payee against the maker of a note, the defendant pleaded that before the commencement of this suit the plain. PLEADING. 25 tiff indorsed and delivered the said note upon and for a valuable consideration, to a person unknown to the defendant. Replication., that the plaintitViiid not indorse and deliver the note upon and for a valuable consideration, in man- ner and form, iVc. : Held per Cur,, on demurrer to rejilication, replication bad. Mclntyre v. Sl.ead, 300. Assignment by hauhrupt, before bank ruytcy , of part if interest in bond — "Who to sue, l)aid:rupt assig>/ee, or bankrupt.] — 17. Where a bankrupt, • hirty days beforetheconmiission issu- ed, iw;«y?^/r' assigned part of his in- I terest in a bond to A. 13., (vi/.. to 400/. j when the bond was for fiOO/.) ; it was j held per Cur., that he (the bankrupt), [ and not the baiduupt's assignee, was j the proper j)arty to bring the suit for ! the interest A. B. had in the bond. Ilughesw Xcurastle District Mutual Fire Insurance Coinpa)iy, 315. Actinnon foreign judgment — Plens 1o — Jurisdiction of f, reign court over the persons ofdrfe/t(b(/iis, the cause nf action, and to the nal a ral justice of tlic judgment — Demurrer.] — 1 S. Tlie delL'ndants being sued in assumpsit upon a tbrei'tn judgment obtained in the State of New York, pleaded in three or four i)leas a want of jurisdic- tion in the liireign court over their persons, they being British subjects re- sident in Upper Canada from and after the commencement of the suit; also, a want of jurisdiction over the cause of action; and also, that the facts alleged and proved in the jiroceedings in the foreign court, and set out in the 8th plea to this action, shewed that the judgment given there was contrary to natural justice: but held per Cur., (Robinson, C. J., dissent iente), that the averments in the 4lh, 5th and 8th pleas, as they now stand, were insuf- ficient, to make the defences available. Warrene, et at. v. Kingsmill et (U., 407. 36 PLEADING. I'LEADINU. m Trespass — Evidence under pleas of I not giii/ti/, coul mids not 'property of, 2Jlauii/ //'.]—] J>. ' Sfu " Eviiloncc," i». } Deliver 11 of (i/l(ir/iei/''s hill — Date laid binder cisci/ieet — RepUc2, and that 13 Ac 14 Vic. ch. ()'!', could not a])ply to this by-law : Held (dso, that the i)lea was bad in not directly averring that the surveyor b.ad laid out a road through the plaintilV's land, which he reported on the 27th July, and that such road went through ami over the locus in quo, and that the council confirmed that road: Aiul semble, that it would not be sufficient for a surveyor to lay out a road through a man's land of his own accord, and then to report it to the council, to en. title the council to establish it as a road ; but that the surveyor must act in consetpience of a proper a])plication or order: SemUe «/.so, that a by-law cannot be good which authorizes a road through a man's land without stating where it enters or what course it takes ; and that the reference to the surveyor's report, without annexing it to the by-law, nor even averring that it is remaining among the records of the council, is not sufficient : Semble also, tliat the ^itting it on the ground of immemorial usage; 2ikI. 1 hat the plea should have was to bo made. The defendant de murred for these causes to the declara- t!xpressly averred that there was no tio\7: .7/yHthaV'lhoiigh'"the^nam «': '"'^l'' ?^ opening, in the dams, the obligee was omitted, it must be intended that the land was to be con- veyed to him: Held also, that in the absence of any qualification or limita- tion to his undertaking, defendant's meaning would be taken to be, that he would give an absolute title : Held also, that the description of the land, though too vatrue to shew on the face of the through which &c. : Held also, that the mentioning of freshets in tiie statute was only for the purpose of shewing I that streams should be free from ob- i struction, even though they could be I used for such ])mposes only in times of freshet. Shijmau v. Clothier et al. 592. instrument w!>ere the land must lie, was yet sntVicient to enable it to '//, 587. Excess.^ — 32. Excess must be re- plied. Davis v. Ltimon et al. .^99. Promissory note — PleadinmJ defendant — 12 Fic.ch.lH across a certain stream iVc, down (i, 20, 37; 12 Vic. ch. 8. sees. Held per Cur., Replication good, Gravcley v. .Jones, fi06. Phadinir — Who proper plaintiff " " sees, 174., which said stream Sic. and at the re-; 175.] — 34. The testator having been spective places kc. lumber and saw- ' appointed by the tinance committee of logs are usually brought and have been 1 the district councd to collect the wild 0. PRINCIPAL AND AGENT. QUO WARRANTO. 29 ime, to wit, for ive years ; and were not con' 1 or slide suffi- thc statute &c., dams &c. had !s &c. ; and be- coiild not other- down the said the defendants spasses &c., for /, on demurrer, ? it did not suffi* stream to be a s such a pubhc hat it liud been ng timber, nor I of immemorial ilea should have t there was no liT, in the dams, ileld also, that 3ts in tiie statute lose of shewmg e IVee from ob- i they could be :s only in times V. Clothier et 3SS must be re- nn et al. 599. Vt«r//«ir.]— 33. linst maker of a , note made for ion without con- 1, that note was accommodation nor docs he still ut value, &c. ; replication does isideration was; plication good, i). rnpcr plnintiff ic. ch. 78, sees, •h. S. «'r.v. 174., tor having been ce committee of collect the wild land tax: field, that his representa- tives wtM'e liable to the council for money received by their authority and not paid over. Where, subsequently to the conuufricemont of the action, one of the three united counties had PRINCIPAL AND SURETY. See Evidence, 4. Sufficient proof of notice to princi- pal to 6ind siiitiij.'\—\\\n;rt,' the prin- cipal, by rejieaiiiig the contents of a been set oil from the other two, Held, I ""^"^'-' *"'"-'"•■* ^''-'"■''y »l't''-t'l>y that the thatthe municipal council of the three. I'!**"'^''""^^ ''"^'*' '"'^'" rei'*-"'ved by united counties were the proper i)lain. '■ '."",' ^'"^ '" ^""'i''*-"* P'"<'o' o< ""tice to tilfs to bring the action. Bfimiciptd VT^ ^''*: I'l'T^y- -^'ortoa w Bcnja- Council of Lincoln, WcUund I'j- Hul- diiniindv. T/ium^isofi et al., Execu- tors, i^c ,615. Declaration — Demurrer — JYecessn- ry averments.^ — 35. The declaration (which is set out in substance in the re])orl) was held insuHicient: — 1st. Because there wps no averment that the sheritT seized before the return of the writ of ti. fa. against lands ; 2iul. That it not appearing that tlie said rent was anything more than a mere rent-seek, it would not be liable to ., , , .,,,,, seizure under a fi. fa. lands. Doucrall ' "' '""''^•'■■, '^T^^ ^'''"^''•^ '"'^'•^' ^'^^ \min and P/iijipen, 5M jYolice sufficie?it xinder agreement \to bind surety.']— 2. Before the de- j fendaiits became guarantee for A., notif had been given him to send the lumber recpiired, sjiecifying the quan- tity and quality thereof. After they gave their guarantee, he was also dis- tinctly notified to send in the lumber which had been previously specified. Held, that such notice was suflicient to bind the surctie.-*, and that it was not necessary thai the particular kind V. Turnbull, G22. PRESCRIPTION. Sec Easemknt., 1. PRIOR ACTION. See Action, 1. PRINCIPAL AND AGENT. expressed in the notice given siibse- quenlly to their having given their guarantee. lb. PROFERT. ..Ossirrmnent of lease — rrofert,'] — A lessee sued in debt for rent, and pleadintt an ar-signment and acceptance uf the rent by the lessor from the assignee, need not make profcrt of the deed of assignment. McCuUoch v. Jarvis et al., 267. PROTEST. Debt due by 2^>'incip(d. to agent, \ how to be made available by agent when sued by principal for money received.]^ kn agent, if sued by his j principal for money received, cannot i *^<'^ Bills op exchange, etc., 1-. deduct in the liist instance from such ! — »— money a claim for monev lent, or forj /-vrrrv tit » t.d ^vrrx any indepondeat transadion between ' ^^^0 WARRANTO. himself and his principal— treating the ' See Municipal Cointil, 3 ; Prac- balance as the only sum held for the I tick, o. use of iheplaintill — but he must ])lea(l } lAercst of liclutur.'] A relator is his demand by way of set-olV against j not necessarily bound to prove his his gross receipts. — /iarai'/^an v. S^/-ce^,i interest unless the defendant question J24-. I it by denying it, and shewing — or at so RENT. ROLE OF COURT. iU- I dA i : least alleeing, fiome ground for lii,« 1 Qitfprc denial. T/ie Quec/i ex rel. Bartliff'c under llie statuU' .') Geo. II. cli. 7, sec. Does a rent cliarjje come V. O'Reilhj, 617. RECOrJNIZANCR. Sec VnNf E, 1. RECORD (Nisi Prus). See Vknug, 1. Amendment of.'] — See " New Tri- al," 1 ; " Venue," 1. Amendment, of , of, JVV.vi P/r/w] — 1. The jud^e at Nisi Priiis cjiniiot, by our act S Vic. cli. 13, wcs, 51, ;i,'j, 55, amend tlic record by adding a new count to the declaration, supporting the action in another way, l)ut ahaii. doning nothing that had l)een heCore stated. In tliis case, whicli was tried in the county court mider a writ of trial, the judge allowed the record to be amended hy adding a count excus- ing the non-presentment of a note to the maker — the declaration havincr averred its presentment: hut, Hrlil per Cur., that the judge below was wrong, and that there must be a new trial without costs. Brown ct al. v. Boulton, 385. Amendment of Record of JK'isi Prius—l Wm. IV. ek. .'}, sec. 157.]— Debt on an annuity deed. At tiie trial at Nisi Prius the defendant was allowed to amend his pleas of usury as to sums and dates : Held, that the amendments were rightly allowed, being such as came witlun the statute. Wright V. Marralls, 511. 4< ? Ihiigfdl V. Tvrnbull, 622. ROAD. iSVr riiciiT or Vv'ay, 1. Jllterdtiiiii of roiitis — Bij-hnv of mriiiiiipnl roi/mil — 12 Vif. c/i. 81, .«r.v. .'il, 1S9.] — 1. Anunticipal coun- cil m pa> r to vmrlec — As to proof of the iniitru,m:nt.']~\Vhcrc yooils have' been transferreil to the vendee by an instru- ment in writini;, the vendor remaining as before the sale in possession, the vendee, to prove his title to the ^'oot! ., must produce the writiiijx, and, if wit- nessed, the subscribing witness. Cald- well V. Green ct al., 327. SET OFF. See Principal and Agent, 1. What not alhnvcd as — Statute of Limitations. '\ — Where there is no plea of set off on the record, tlie defendant cannot have the advantage of any more items of set otV, not being ^w//7neni4' on account, which the plaintiff has ad- mitted in his ))articulars of demand; and where part of the plaintiff's own demands, stated in his ]>articulars, are barred by the Statute of Limitations, he lias a right to place against these the items of set off appearing in his particulars to be beyond the six years. Ford et al. Executors, tj-c. v. Spaf- ford, 17. — * — SHERIFF. See Indemnity Bond, 1,2. Bill of sale executed to creditor — Sheriff not liable for not seizing goods under subsequent writ.^ — 1. On the 18th of May the sherilF received A.'s writ of 3)lu. fi. fa. against B.'s goods, returnable on the 1 1th of June (Easter Term), ujjon which the goods were seized. — On the 1st of June fol- lowing B. made a bill of sale to A., leaving out however a iew small arti- cles, of which no notice had been given to the sheriff.— On the 27th of July C.'s writ of fi. fa. against B.'s goods was received by the sheriff: Heldjier Cur., that upon these facts, supposing the bill of sale to be bona fide, C. lia-' SHERIFF. ftl no right of action against the sheriff for not seizing B.'s goods under his writ. Jletd (dso, that the direction of the 'earned judge to the jury to en- quiie if the bill of sale was made for valuable consideration and bona fide intended to pu. s the property, or whether it was iwivly colorable, of winch secrecy and the absence of change of vMble possession and own- eiv^hip all'ui vd indications, ; ,id that if they sustained the bill of sale as valid, it operated as a ^al::.faction and dis- charge of A.'sy/. fa. from the day of its execution, and that then the plain- tiff (C.) must fail on his first count, alleging the seizure of A.'s gooil • un- der C's writ, and that the only ques- tion would be on the second count for not seizing the articles omitted from the bill of sale, as to which they were told that ill the absence of any direct notice to, or knowledge in tlie sheriff of such goods, they must say whether he had as to them been guilty of any want of reasonable diligence in the execution of the plaintiff's (C.'s) writ, was correct, and that the finding of the jury in the sheriff's favor could not be disturbed. Darling et al. v. Corbett, sheri/f, 72. Advised to take written guarantees from atlornies.'] — 2. In re Corbett v. O'licilhj tj- Co., 130. Case against sheriff for false re- turn to fi. fn, — What due diligence in sheriff trying to execute tcrit.'] — 3. Held 2}cr Cur., refusing to disturb the verdict in this case in favor of the sheriff, who had been sued in case for a false return to a writ oi fieri facias, that the sheriff could not be said, either in law or in fact, to have been guilty of culpable negligence in not executing the writ; he had tried several times before the return day to execute the writ, but could not gain admittance to the house, and the Chief Justice said he could not hold that a sherilF was bound to keep sentinel day and night I H)*MJI1 32 SHERIFF. SUKRIFF. at a defendant's house, lor several days or weeks in succession ; he avus IjouiuI to exercise due diliroper to irive damtiires to the amount of the deht, especially when it is not so lar^eas to justify the assumption that it would not he paid under the pressure of coercion, even though the debtor mmj fiuve no visible property. II). Hoio fur hound by tcnrranty given by deputy, without his /cnowlei/v;e.li — 7. Semb/e: That the deputy tJierijI' cannot, in any saleol property in exe- cution, l>ind the shcri/f, by giving, of hiti ovvii accord, a warranty that the lioods l)t?longed to the debtor in the^Z. fi, — (Draper, J. di/hitmUe,) — The deputy sheritr would he clearly liable himself on such a warranty. Mink v. ,/i/rris, sherij/' t\r., 3i)7. 3 IT/fl. IV. ch, S — ifhid. wit wilful or vetiliiient misconduct, within men n- iiiu: of the net.'] — S. Tiie declaration was in covenant atraiMstthe sherilf and liis sureties, under 3 Win. IV^. ch. 8. The ind Invach slated in substance thai ihe sherill' having received a writ (M' c(i. re, to arrLst one 'i'yier, a jjcrson without any authority from the sherilT arrested him; that Tyler went to the sheiilV and gave a bad bond for his 'appearance, which the sherill", not knowing but that tlie warrant author- ized the arrest, took. Hut field, that this breach did not con^titute such wilful, iiiificoitduct on the i)ait of the sherill' as to enable the plainlilV to sus- tain an action auaiiist liim and his sure- ties under 3 AV'm. IV. ch. 8. Qufcre: Whether under the circumstances, the court would not hold the bail precluded from denying an arrest. McIiUosIt v. .farvin etiiL, r)30. J'ouer if sheriff to iirrent a second time ii.h He process cum nf, first .irrest hiiviuu; been set aside «,s a nullity,^ — 9. A writ of ca. re. havinix issued to the sherilV to arrest one Tyler, a war- rant was thereupon made to one (J. a siierilV's otlicer to execute it. G. be- ing unwell, put it into the hands of another bailitV, whose name did not appear in the warrant, and he went to Tyler and toltl him that he had a war- rant to arrest him. Tyler promised to go to the sherilV 's otlice and give bail, wliicli he did. Subsecpiently, Tyler's attorney discovered that tho name of the second badilV was not in the warrant, and applied to the judge of the county court to set aside the arrest, who iliii so. PlaiiitilV's attor- ney then snggesteil to the olVicer that he should have a proper warrant made out and arrest Tyler while the process t'F. (Ic'litor in thej^. (hilKiite.) — The bo rlt-arly liable .airaiitv. Mink , 397. ' -w/iiit not icilful irt,wilkiiiniKin- Tiic (K'claralion ist \\\(^ sheriU'and Will. IV. cli. 8. ed ill >iul)staiice Lf rociived a writ c Tyler, a person I'roiii the slieiiff 'ylcr weal to the jail botal I'or \\\ii tbe >c 11 Vic ill. 93— Coboiirg & Grafioii Road Compiiny, r)79. 12 Vic. oil. 1 — Customs, 516. 12 Vic. ch. 3.")— Survey of Lands, 259. 12 Vic. ell. 63, Kiiilahle rroocss, 560. 12 Vic. cli. 78 — Union of Counties, 375, 579, 615. 12 Vic. ch. 80 — Repeal of Municipal Acts, 617. 12 Vic. ch. 81— Municipal Councils. 222. 229, 232, 260, 336. .349, 375, -lil, 615, 617, 12 Vic. ch. 81— Road Act,3()7. 12 Vic. ch. 87. Mill Dams, 592. 12 Vic. ch. 64— Amendment of 12 Vic. ch. 81,444, 617. TRESPASS. SURRENDER. See Lease, 1, 2. Lease — Surrender in Imv."] — 1. Where a tenant, witli the knowledge and consent of his landlord, takes a lease from another person, to whom the landlord has transferred the rever- sion, this amounts to a surrender in law of the lease ; the relation of land- lord and tenant no longer exists, and consequently the right to distrain is gone. Leicis v. Brooks. 576. 2. The provincial statute 12 Vic. ch. 71, does not alter the law as .far as regards a surrender in law. lb. SURETY. See Evidence, 4". Lialility ofde^nitii's surety to trea- surer of Western District — Its extent, as dejmidimr on the c/uinire in the trensure/s mode of (ipjminlment to office.'] — A. became surety to B., the treasurer of the United Counties of Essex, &.C. for the due accounting &c. byC, as deputy treasurer, while he B. continued in his said office. C. re- ceived moneys for which he did not accoinit, and B. sued A. upon the bond. B. held his commission as treasurer from the government, from the execution of the bond to the 10th October ISIG ; and from that time to the 16th of August 1849, in conse- quence of a change made in the mode of appointment, he held his office under an election of the municipal council of the Western District : Held per Cur., upon these facts, that B. could sustain his action against the surety A., 1st, without proof in the first instance that he had actually paid the money him- self which his deputy C. had mis>spent ; and, 2ndly, that the surety was liable during tiie whole time the deputy was serving in the treasurer's office, with- out reference to the mode of the trea- surer's appointment. Jean JB, Baby V. Charles Baby, 16. SURVEY. Consequences of enoneous survey.'\ — 1. See " Improvements," 1. Expenses fur, lioiv recover ed.'\~2. Roach V. Munici'pul Council ofHamiU ton, 229. SURVEYOR GENERAL. See Gr.\nt, 1. TAXES. Land sold for, trhere erroneously returned as described for grant.] — Perry v. Powell, 251. TITLE. See Covenant, 3, 6. Defendant prevented from setting •up adverse title by his otvn act.] — Doe dem. Boulton v. Walker, 571, TOWNSHIP COUNCIL. See Municipal Council, 5. TRESPASS. See Case; Evidence; Landlord AND Tenant, 1. ss. DER. ' 1 *> ^>^ /ffzf.] — 1. the knowledge landlord, takes a KTson, to whom ll'iTL'd the rever- a surrender in relation of land- onger exists, and ht to distrain is wh. 576. statute 12 Vic. the law as. far as n law. 16. /roneous survey.^ ncnts," 1. 10 recoverp(!.']~2. .'ouncilo/Hamil. GENERAL. NT, 1. '.'here erroneously (I for grant.}— 1 • E. NT, 3, 6. ted from setting s otvn act.l — JJoe Ikcr, 571. COUNCIL. CouNca, 5. LSS. ce; Landlord NT, 1. TROVER. TROVER. 36 Evidence under 2de(is of not guilty and goods iwt jtroperty of plaintiff]'^ —1. See « Evidence,'"' 9. Trespass for breaking SfC. mill-dam^ —2. See "Pleading," 31. TROVER. See Estoppel, 2. Omission of "licet sccfiiis rerptisi- ') WILL. Registration of] — 1. Under the statute 9 Vic. ch. 31, the.objection that the will was not registered within six months after death of tcstatiix, nor pre- vious to a conveyance by the heir at law, is not valid, when the person WORK AND LABOR. See Contract, 2. Effect of recovery for part of value of work.] — Semble: That a recovery in an action on the common counts for work and labor, or for any part of the value of the work, would be taken to preclude any other action for the same work. Tiirley v. Grafton Road Company, 579. WRIT. See Audita Querela.