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1
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iffl
A DIGEST
I
OF
THE REPORTED CASES
DETERMINED IN THE
arts of fcmon f ato an^ (f pt
B
IN THE NOW
PROVINCE OF ONTARIO,
loM THE COMMENCEMENT OF THE REPORTS IN TRINITY TERM, 1823,.
44 QUEPLV'S BENCH.
30 COMMON PLEAS,
TO AND INCLUDING VOLUMES
2G CHANCERY, 7 PRACTICE REPORTS
4 APPEAL REPORTS, 15 LAW JOURNAL N s'
SUPREME COURT REPORTS
2 SUPREME COURT REPORTS,
WITH SOME DECISIONS FROM COUNTY COURTS, AND REFERENCES TO STATUTSS.
BY
CHRISTOPHER ROBINSON, Esq.,
ONE OF HER majesty's COUNSEL,
AND
F. J. JOSEPH, Esq.,
OF OSGOODE HALL, BARRISTER- AT-LAW.
%xi %m mx\xm%,
VOL. 1.
CONTAINING THE TITLES
ABANDONMENT to NEWSPAPERS,
I
TORONTO :
ROWSELL AND HUTCHISON.
1880.
■IMPI
i;.,„ f , tho Act of tlie l>arliamciit of Canada, in the year of our Lord
John J osevh, in the Office of the Minister of Agriculture.
R0WSEI.L k HuTCiiiBOH, PmsTins, Toronto.
ir Lord
Frank
THE HONOURABLE
JOHN HAWKINS HAGARTY,
CHIEF JUSTICE OF HER MAJESTY'S COURT OF QUEEN'S BENCH
FOR THE PROVINCE OF ONTARIO,
IS INSCRIBED
IN RECOGNITION OF MUOH PERSONAL KINDNESS,
AND AS A TRIBUTE OF RESPECT
FOR HIS
HIGH JUDICIAL CHARACTER AND LEGAL ATTAINMENTS.
PREFACE.
This Digest, with the Addenda, embraces all the reported cases
in the Superior Courts of the present Province of Ontario from the
commencement of the Reports, in 1822, to the present time— or to
the end of the Volumes mentioned in the title page, with some cases
taken from the numbers of the subsequent current Volumes.
When the prospectus of the Work issued in 1874, it was designed
to publish a digest up to that time only; but as it was to be issued
in numbers, and would take some ..ime in going through the press,
the plan was enlarged, and it was decided to include in each number
all the cases reported up to the time of its issue, and by means of
a Supplement to bring up the whole Work to the time of completing
the last number. As the result, the size of the book has been
materially increased, and it contains the decisions of six years more
than was at first contemplated. Advantage has also been taken of
the change of plan to include in. the Supplement some additional
cross references which it was thought might be useful, and to correct
such errors as have been discovered in the progress of the work.
It now includes about 125 Volumes, exclusive of the Law Journal,
more than treble the matter contained in the two previous Digests •
and to effect the compression thus rendered necessary the head notes
have been to a large extent shortened and re-arranged.
It was at first intended to omit all obsolete law, but upon
l^consideration this was abandoned, and it was thought better to include
every case, so that in the one Digest all decisions might be found.
In many instances, however, where the law has been so changed as
to make the decisions useless even as bearing by analogy on any
yI preface.
questions likely to arise now, a reference to the names of the cases
only has been given, as, for exauij)le, in the cases with reyard to
negative pn-'gnant and colour in pleading, and to the exclusion of
witnesses by reason of interest.
The an-angenient adopted has been that of Mr. Fisher, which,
founded upon that of Mr. Harrison, has become familiar to tlie
Profession, and is believed to be the most generally approved.
The Editors are nmch indebted to Mr. T. W. Taylor, Q.C, the
Master in Chancery, who has been kind enough to peruse the subjects
with which his experience had made him more especially familiar,
such as Mortgage, and Pleading and Practice in Equity ; to Mr.
HusoN W. M. Murray, and Mr. H. J. Scott, who have read most
of the proof sheets ; and to Mr. Trevelyan Ridout, who, with the
late Mr. Wethey, has rendered valuable assistance in the passage of
the work through the Press.
Toronto,
December, 1880.
(Slhkf lusticts anil Jutiges
OF TUB
SUPREME O'Oirr of the dominion of CANADA,
AND or
THE SUPERIOR COURTS
OF THE
PROVINCE OF ONTARIO. FORMERLY UPPER CANADA,
From thb Constitution of the Province under 31 Geo. III., c. 31 (17»0-1),
TO the I'ltESENT TlMK.
■ ««» ■■
SUPREME COURT AND EXCHEQUER COURT.
CHIEF JUSTICES.
Hon. Sir William Buell Richards,
■fr-
„ ^^J Appointed Stli of October, 1875.
Hon. William JoHxsTONE Ritchie . . « 11th of January, 1879.
JUDGES.
Hon. William Johnstone Ritchie ., Appointed 8th of October, 1876
Hon. Samuel Henry Strong « gth of October, 1875.'
Hon. Jean Thomas Taschereau. ..... « gth of October, 1875.
Hon. Telksphore Fournier .. gth of October, 1875.
Hon. William Alexander Henry. . . « stn of October, 1875
Hon. Henri Elzear Taschereau .... - 7th of October, 1878".
Hon. John Wellington Gwynne .... •< uth of January, 1879
COURT OF ERROR AND APPEAL.
PRESIDING JUDGES AND CHIEF JUSTICES.
Hon. Sir John Beverley Robinson,
Bart., C.B Appointed 18th of March, 186^.
Hon. Archibald McLean « 22ud of J uly, 1863.
Hon. William Hbnry Draper, C.B . . « 20th of October, 1868.
Hon. Thomas Moss . 30,,^ ^, ^^^^J
viii CHIEF JirSTICKS AND .MUMJKS OF
JUIXIKS.
Hon. Sib James Hurn \nan Maoaulay,
Knt r Appoiiitwl 23nl of July, lfl57.
Hon. Wilmam Hpmk Bf.akk " iL'tli of Mnrcli, 1H(J4.
Hon. Samitki. Henry Sthono " 27tli of May, 1874.
Hon. Geouoe William Burton " .'lOtli of May, 1874.
Hon. CiiBisToriiER Salmon Patterson •' Otli of Juno, 1874.
Hon. Thomas Moss " 8tli of Octohoi', 187;>.
Hon. Joseph Curran Morrison .... " 3UtIi of Novoiuber. 1877.
NoTP. ny 34 (ten. III. c. 2, and 7 Will. IV. c. 2, .appeals were allownd from tho Court of
King's liciich ami Cliancery, to thu (fovernor and ('oiincil, who composud a Court of Appeal.
By 12 Viot. c. f).3, a new appellate Court was t'KtiiMiKliod, called the "Court of Krror and
.\ppoal," composed of the.ludgcs of tho Courts of Queen's Henoh, Common Pleas, and Chancery.
By 20 Vict. c. !>, the (lovernor miuht appoint any retired .Fudge of those Courts as an
additional .Tudge in Appeal. (.See Consol Stat. U. C. c. IS. See also 24 V. c. .Id, 25 V. c. 18.)
Tho present (>ourt of Appeal was established by the 37 Vict. c. 7, O., now II. S. O. c. 38.
By 39 Vict. c. 7, s. 22, the style of the Court was changed to " The Crmrt of Appeal."
The presiding .luilge, by 32 Vict. o. 24, s. 1, ()., was styled "Chief Justice of Appeal"
until the death of Chief .Instico Harrmon, Ist of November, 1878, since which date ho is styled
"Chief .lustice of Ontario." (R. S. U. c. .18, s. 5.)
COURT OF KING'S (NOW QUEEN'S) BENCH.
CHIEF JUSTICES.*
Hon. William Osooode Appointed 29th of July, 1792.
Hon. John Elmsley " 2l8t of November, 1796.
Hon. Henry Aloock " 7tli of Octolier, 1802.
Hon. Thomas Scott " 6tli of Augn.st, 1806.
Hon. William Dummer Po^VELL .... " Lst of October, 1816.
Hon. Sir William Campbell, Knt. . . " 8th of December, 1825.
Hon. Sir John Beverley Robinson,
Bart., C.B '• 13th of July, 1829.
Hon. Archibald McLean " 18th of March, i862.
Hon. William Henry Draper, C.B.. " 22nd of July, 186.3.
Hon. William Buell Richards .... " 12th of November. 1868.
Hon. Robert Alexander Harbison.. " 8th of October, 1875.
Hon. John Hawkins Hag arty " 13th of November, 1878.
JUDGES.
Hon. William Dummer Powell .... Appointed 9th of July, 1794.
Hon. Henry Alcock " 30th of November, 1798.t
Hon. Thomas Cochrane " 25th of June, 1803.
* The Chief Justice of this Court, until 1878, was styled "Chief Justice of Upper Canada"
or "of Ontario."
t The Hon. Peter Rtjssell, Administrator of the Govei nment, received several commissions
between the 15th of July, 1796, and the 17th of March, 1798, to act in the absence of other
Judges. • . ■ .
TIIK rUOVINCK OF ONTAIIK).
Hon. UoiiKitT Tiioiii'K A|i|K)iiitf) " ir)tii of F»!ltruary. 1840.
Hon. Wii.mam IIknhy Duai-ku " IlHIi of Jiiin*, 1847.
Hon. Roiikut IUluwin Sui.mvan .... " IStli of Soptombor, 1848.
Hon. RonKiiT Kaston BiruNS " 21.st of Jammry, 18.')0.
IToN. AiicHiiiAM) AIcLkan " ■')tli of Febniaiy, 18r)().
Hon. John IFawkins IIaoarty " 19th of March, 1 8G2.
Hon. Skkfpinoton Connor " Slst of Jfumary, 1803.
Hon. Joseph fuiiiiAN Morrison " '24th of Aii>,'ubt, 1803.
Hon. Auam Wilson " 12th of Noveuiber, 1808.
Hon. John Douolas Armoi'R " '^'^fh of November, 1877.
Hon, Mattiikw Crooks Cameron .... •' 1; i of Novembor, 1878.
IX
COURT OF COMMON PLEAS.
CHIEF JUSTICES.
Hon. Jame.9 Buchanan Macaulay. . . . Appoitited loth of December, li^4l>.
Hon. William Henry Draper, C.B.. " 5th (T February, 1856.
Hon. William Buell Richards .... " 22ii(l of July, 186.3.
Hon. John Hawkins Haoarty " 12th of November, 1868.
Hon. Adam Wilson " 13th of November, 1878.
JUDGES.
Hon. Archibald McLean Appointed lOtli of January, 1850.
Hon. Robert Baldwin Sullivan .... " 21st of January, 1850.
Hon. William Buell Richards .... " 22ud of June, 1853.
Hon. John Hawkins Hagarty " 5th of February, 1856.
Hon. Joseph Curran Morrison .... " 19th of March, 1862.
Hon. John Wilson " 22nd of July, 1863.
Hon. Adam Wilson " 24th of August. 1863.
Hon. John Wellington Gwynne .... " 12th of November, 1868.
Hon. Thomas Galt " 7th of June, 1869.
Hon. Featherston Osler " 5th of March, 1879.
(a) The Hon. J. B. Macaulav was on the 3rd of July, 1827, temporarily appointed a
Judge of the Court of King's Bench, in the room of the Hon. D'Arcy Boulton.
(A) The Hon. C. A. Haoerman wa« on the 26th of June, 1828, temporarily appointed a
■fudge of the Court of King's Bench, in the room of the Hon. J. W. Willis.
I
X CHANCELLORS, VICE-CHANCELLORS, ETC.
CLERK OF THE CROWN AND PLEAS OF THE COURT OF QUEEN'S BENCH.
(R. S. 0. c. 39, s. 29.)
Robert Gladstone Daltox, Q.C Appointed by R. G. T. T. 1870, (•29'
Q. B. 623,) 21st of February, 1870.
COURT OF CHANCERY.
CHANCELLORS.
Hon. William Hume Blake Appointed 29th of September, 1849.
Hon. Philip M. M. S. VanKoughnet. . •« 19th of March, 1862.
Hon. John Godfrey Spragge " 27th of December, 1869.
VICE-CHANCELLORS.
Hon. Robert Sympson Jameson Appointed 23rd of March, 1837.
Hon. James C. P. Esten " 29th of September, 1849.
Hon. John Godfrey Spkagge " 27th of December, 1850.
Hon. Oliver Mowat " 14th of November, 1864,
Hon. Samuel Henry Strong " 27tli of December, 1869.
Hon. Samuel Hume Blake " 2nd of December, 1872.
Hon. William Pkoudfoot " 30th of May, 1874.
M. ASTERS, REFEREES, AND SECRETARY.
John Godfrey Spragge Appointed Master 20th of June, 1837.
Andrew Norton Buell " Master 27th of December, 1850.
Thomas Wardlaw Taylor, Q.C Apjwinted Secretary 5th of September,
1866 ; Appointed Referee 21 at of
February, 1871 ; Appointed Master
16th of December, 1872.
John Alexander Boyd Appointed Master 31st of October, 1870.
George Smith Holmested " Referee 16thof December, 1872.
Richard Porter Stephens " Referee 1st of April, 1876.
Note.— By 7 Will. IV. ch. 2, a Court of Chancery was established for the Province of
Upper Canada, of which the Governor of the Provincb was Chancellor, and the Judicial power
whereof were exercised by a Judge, known as the Vico-Chancellor of Upper Canada. By 12
Vict. ch. 64 (C. S. U. C. ch. 12), the appointment of a Chancellor and two Vice-Chancellors
was^authorized.
MARITIME COURT.
(Established by 40 Vicx. c. 21, C.)
JUDGE. . r. ,
Kenneth Mackenzie, Esq., Q.C Appointed 12th of July, 1877.
gtinv^Uxs of Justia nnb Siiioxm^s-iBvAmt
OF THE
DOMINION OF CANADA
AND
^itoxnzj}Q-^tnzxnl mxi ^olidtoxs-(%cntxnl
FOR THE
PROVINCE OF ONTARIO, FORMERLY UPPER CANADA,
From the Conhtitution of the Province under 31 Geo. III. c. 31,
TO THE Present Time.
» «•» ■
DOMINION OF CANADA.
MINISTERS OP JUSTICE AND ATTORNEYS-GENERAL.
Et. Hon. Sir John Alexandeu Mac-
DONALD, K.C.B Appointed Ist of July, 1867.
Hon. Antoine Aimk Dohion .• 7th of November. 1S73.
Hon. Telesphore Fournier « gth of July, 1874
Hon. Edward Blake « 19^1, ,f ^^ jg^^
Hon. Rodolphe Laflamme « gth of June, 1877
Hon. James McDonald « j 7^], of October, 1878
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hov.
PROVINCE OF UPPER CANADA.
ATTORNEYS-GENERAL.
John White Appointed 29th of July, 1792
Thomah Scott <> ism
William Fikth .' .' .' .' ." ." .' . 3,.^ ,^ November, 'l 807.
John Macdonell . 28th of September, 1811
John Beverley Robinson «. 194,, of November, 1812.
.p.,. Acting Attorncy-Generah
D Arc. Boulton .. 31,^ „^ j),,,^^,,^ \^i^
John Beverlev Robinson «< j uh of February, 1818
Henry John Boulton .. 13^^ of J„iy, I8:i9
Robert Sympson Jameson " sist of June, 1833.'
Christopher Alex. Hagerman . . - 23rd of March, 1 837
r^
XII
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
ATTORNEYS AND SOLICITORS GENERAL.
William Henry Duaper Appointed 14th of February, 1840.
Robert Baldwin " 16th of September, 1842.
William Henry Draper " 2ncl of September, 1844.
Henry Sherwood " 29th of May, 1847.
Robert Baldwin " 11th of March, 1848.
William Buell Richards .... " 28th of Octobei-, 1851.
John Ross " 22nd of June, ] 853.
John Alex. Macdonald " 11th of September, 1854.
John Sandfield Macdonald . . " 2nd of August, 1858.
John Alex. Macdonald " 7th of August, 1858.
John Sandfield Macdonald . . " 24tb of May, 18G2.
John Alex. Macdonald " 30th of March, 1864.
SOLICITORS-GENERAL.
Robert Isaac Dey Gray Appointed 21st of March, 1797.
D'Arcy Boulton " 6th of November, 1805.
John Be 'erley Robinson " 6th of February, 1815.
Henry John Boulton " llth of March, 1818. Acting
Solicitor-General.
Henry John Boulton " 26th of July, 1820.
Christopher Alex. Hagerman. . " 13th of July, 1829.
William Henry Draper " 23rd of Man^i, 1837.
Robert Baldwin " 14th of February, 1840.
Henry Sherwood " 23rd of July, 1842.
James E. Small " 26th of September, 1842.
Henry Sherwood " 7th of October, 1844.
John Hill yard Cameron " 27th of June, 1846.
William Hume Blake " 22nd of Aiu-il, 1848.
John Sandfield Macdonald . . " 14th of December, 1849.
John Ross " 12th of November, 1841.
Joseph C. Morrison " 22nd of June, 1853.
Henry Smith " llth of September, 1854.
Skeffington Connor " 2nd of August, 1858.
Joseph C. Morrison " 22nd of February, 1860.
James Patton " 27th of March, 1862.
Adam Wilson " 24th of May, 1862.
Lewis Wallbridoe " 16th of May, 1863.
Albert Norton Richards .... " 26th of December, 1863.
James Cockburn " 30th of March, 1864.
PROVINCE OF ONTARIO.
ATTORNEYS-GENERAL.
Hon. John Sandfield Macdonald
Hon. Adam Crooks
Hon. Oliver Mowat
Appointed 16th of July, 1867.
" 20th of December, 1871.
" 31st of October, 1872.
OF THE
SUPREME COURT OF THE DOMINION OF CANADA,
AND OF
THE SUPERIOR COURTS
OF THE
PROVINCE OF ONTARIO, FORMERLY UPPER CANADA,
From the First Appointment under 4 Geo. iv c. 3, to the Present Time
WITH THE Volumes published by Each. '
» <»» ■
EDITOR OF THE ONTARIO REPORTS.
Christopher Robinsox, Q. C Appoir.ted 30th May, 1872,
33 Q. B. to present time ; 22 0. P. to
pi-esent time; 19 Chy. to present
time ; 7 P. R. to present time.
— ♦ »«> ■ _
REPORTERS.
SUPREME COURT.
(See 38 Vict. c. 11, ss. 71, 73, D.)
Robert Cassels, Jr. a • ^ 1 t. •
' ; Appointed Registrar 8th of October, 1875
George Duval . . ^"'f'/ f^.^^r ^^ *° 1"'^'""' *""^-
Appointed 19th January, 1876.
Vols. 1 Sup. Ct. R. to present time.
t
COURT OF APPEAL.
Alexander Grant Appointed 14th of February, 1S61.
James Stewart Tupper . . Appointed 27tli of November, 1876. (a).
^oJ»- 1 App. R. to present time.
xiv REPORTERS TO THE SUPERIOR COURTS.
COURT OF KING'S (NOW QUEEN'S) BENCH.
Thomas Taylor Appointed E. T. 4 Geo IV,, 1823.
Taylors Reports, 1 Vol., from Trinity
Term, 4 Geo. IV., 1823, to Trinity
Term, 8 Geo. IV., 1827. inclusive.
Simon E. Washburn Api)ointed 4th of May, 1829.
No Reports.
William Henry Draper Appointed 12th of November, 1829.
Draper's Reports, 1 Vol., from Michael-
mas Term, 10 Geo. IV., 1829, to
Easter Term, 1 Will. IV., 1831, in-
clusive.
Henry Sherwood Appointed 1837.
MSS. Re[)orts, Vols. 2 to 6, from Trin-
ity Term, 1 & 2 Will. IV., to Hilary
Term, 7 Will. IV.*
John Hillyard Cameron Appointed 7th of November, 1840.
MSS. Reports, 2 Vols., and Vols. I
jind 2 Q, B
James Lukin Robinson Appointed 6th of August, 1846.
Vols. 2 to 5 O. S. inclusive ; Vols. 3 to
13 Q. B., inclusive.
Christopher Robinson, Q.C Appointed 29th of November, 1856.
Vols. 6 O. S. and Vols, 14 to 32 Q. B.,
inclusive.
Henry C. W. Wethey Appointed 30th May, 1872.
Vols. 33 to 42 Q. B. inclusive.
Salter J. VanKoughnet Appointed 25th of June, 1878.
Vol. 43 Q. B. to the present time.
COURT OF COMMON PLEAS.
Edward C. Jones Appointed 5th of September, 1850.
Vols. 1 to 14 C. P. inclusive.
Salter J. VanKoughnet Appointed 27th of August, 1864.
Vols. 15 to 21 C. P. inclusive, and part
of Vol. 22 C. P.
George Frederick Harman Appointed 7th of December, 1872.
Part of Vol. 22 C. P. to the present time
COURT OF CHANCERY.
Alexander Grant Appointed 19th of June, 1845.
Cases reported in 1 O. S. (2 U. C. Jurist).
Vols. 1 Chy. to the jn-e-sent time.
* Moat of these MSS. Reporti are to be found in Vols. 2 to 6, O. S., and 1 Q. B.
REPORTERS TO THE SUPERIOR COURTS. ^
COMMON LAW CHAMBERS.
Henry O'Brien ... a • x i n , „
Ai)i)ointed 8th of September, 18G6.
TO ^ Vols. 4 to G P. R.
Jamks Stewart Tupppb *,,«-.
"^^^ App. nited 27tb of June, 1876
^<''- " P- R-
William Jigertov Ppkhitp a • , ,
PERDUE Appointed 1st of March, 1879.
Vol. 8 P. R. to the present time.
Court of Queen's Be„cl^the 4 beS then rrti:'""'f p"' """ ^^'^^^ ^^-« Reporters to the
Common Law Chambers. ^ authorized Keporter to the Practice O^urt or
CHANCERY CHAMBERS.
Charles W. Cooper . . a • . , , ^ ,
Appointed 12th of February. 1867.
Hexry O'Brien . ^''''- ^ ^'^ ^ ^'^y- ^''»'^»'^- i"el»sive.
Appointed l4th of February, 1873
T o Vol. 6 P. R.
James Stewart Tuppfr *
^^^^^ Appointed 27th of June, 1876.
Vol 7 P R
Thomas Taylor Rolph a -"^ j i " . ,
• • Appointed 1st of March, 1879.
Vol. 8 P. R. to prenent time.
iff
ABBREVIATIONS.
A. J. Act Administiation of Justice Act.
App. R Api)eal Reports.
f'. C County Court.
C. C. & P Clerk of the Crown and Pleas.
C. L. C'hamb Common Law Chambers — Common Law Chambers Reports.-
C. L. P. Act Common Law Procedure Act.
C. P Common Pleas — Common Pleas Reports.
C. S. C Consolidated Statutes of Canada.
C. S. U. C Consolidated Statutes of U[)per Canada.
Chy Court of Chancery — Chancery Re])orts, (Grant).
Chy. Chamb Chancery Chambers — Chancery Chambers Reports. v
D Dominion Statutes.
D. C Division Court.
Dra Dra|)er's Reports. i
K ifc A Error and Appeal Reports.
E. C Contested Election Court.
L. J Upper Canada Law Journal.
L. J. N. S Upper Canada Law Journal, New Series.
M. C Maritime Court.
M. O Master's Office.
Ont Ontario Statutes.
0. S *01d Series of King's and Queen's Bench Reports.
P. R Practice Reports.
Q. B Queen's Bench — Queen's Bench Reports (generally quoted
U. C. R.)
Q, S Quarter Sessions.
K. & H. Dig Robinson & Harrison's Digest.
R. G Rules of Court.
R. S, O Revised Statutes of Ontario.
S. C Same Case.
Sup. Ct. R Supreme Court Reports.
Tay Taylor's Rej)orts.
• Cases referred to merely as of the Term in which they were decided, e. SVr AiiREST,
Pl.EA()|Nfi IX
Vlir. PitocEEDixoH IX Arrest-
IX. .'-Jekvice of Hii.i S(r
E(il'lTV.
X, Oin-AtxiNo Decree ani> Orkers i-ro
CONFESSO A(fAlX.ST— .SVt PltACTICE JX
Eiifrrv.
I. Attachment.
1. OciKni//'/.
\Tlii orh/liKi/ Ar/.s, ..' 117//. /r. <•//. .7, „ii,/,5 l['i/t.
IV. •■h. .',, (ii-r amiiiiliil mill, roiiKolhlalcd liif C. S,
r. ('. <■/, 2r>, ir/i!rh mi^ f„rm. S. 2'J2.
[ The ucmit will only gnmt an attachment for
Hiini.s curtani, and where such an allidavit could ho
made a.s would enable a iilaintifl without a
judge's order to sue out l)ailal)le process. Cluck
V. J //(VA/, ,-)(). S. 504.
The ])iTii»erty of a person usually residing in
the r lilted States, hut who employs persons
here and comes frei[ucntly to superintend their
work, may lie attached under 2 Will. IV c 5
Furdv. Lii.','iiieiit tin; (.xccutioii iiiion wiiicli lias
l)ecn .set asiilu a.s frauilnlcnt, iindLr .soo. '2'2, may
be nsoil as a t'ounilation for a writ of attachment,
ami thus share ratably with the other creditors.
II7((7- V. Lor,/, i;i('. 'r. ■J8!».
A wi'it of attachment is jiropcrly issued by
the clerk of the process. ]\'iih\ll: hi v, Urid'c, .')
1'. \{. 77. - <'li am)). -• run , '.i \.. .1. (i!!. C. I..
Chanili. - Hichnrds.
11. Srrtr.iir.s.
The sureties required from the plaintiff before
sale under 2 \\'ill. I\'. c. ,"), rejected because not
inhabitants of this Province. /irin/linn/ v.
Liiirni, ;i ( ». S. .1311.
The afiidavit of jnstilli'ation liy the tiuretics
reipiired liefore excciitiou, unist be made by
themselves. Minrnt \. l'\ii:diir, \\. T. 2 \'ict.
III. Pi;oti;i;i>iN<;.s aiti;!; AnAiii.Mt-,NT.
A plaintifr cannot take a step in a cause
founded on the attachment until the three months
allowed for the dcleudaut to jiut in bail have
exjiircd. Baiiki r v. tlnfjiii, 3 (). S. i()3.
Qiuvrc : When an attaching creditor pur-
chases at sherifl "s sale, and sues for trespass to
the property purchased, should he prove a debt
to support his attachment ? Iloydoii v. Crav:-
ford, 3 0. S. 583.
After an attachment has issued, a ride will be
granted against any fine in possession of the
(iebtor's property, to deliver it up to the sheriff
to whom the attachment is directed. Miilkiis
V. Armstrowj, M. T. 2 Vict.
In trespass against shcrifT ffir seizing goods
of the plaintiff' under an attachment issued
against the goods of a third party by whom they
had been sold to the jilaintiif before the attach-
ment, the defence was that tlie sale was fraudu-
lent and void as against creditors under 13 Kliz.
c. 5, but the sheriff' did not prove any debt from
the absconding debtor to the attachment credi-
tor : -Held, that without this his justilication
was incomplete. (Intn! v. MrLniii,'^ (). S. 443.
See also, Poirrrs v. Hiit/im, 4 (). S. 58.
The court will not ordir an attorney to pay
over nutney which has been attached in his
hands as tlie proiierty of an alisconding debtor.
Clarl- V. S/,ir. S. 75.
Proof of delit'"■ il. Ilonlliiii V, /''iniiisMdii, 't (^.
u. r.i.-..
|,(^:iv(' j^'ftiitfil to serve a)isc(iiicliiij{ (lofondant
with writ of huiiiiiioiis liy iiiailiiii; it to his ail-
ilii's^. /.//'""" V. Siiiilli, ."> L. .1. 107. t '. \i.
Cliainl'. I'.uniH.
When an attai'hineiit iiait lieeii Herveil iijhiii
the wife of a tlul)tor, who \\nn Heil to jiaits where
iiiisiilial service eaiinot lie ell'eeted, tlie ]ihiiiititl"H
(l-iiiiiiMes may lie aseertaiiie(l l)y the ejerk nf the
eiiurt, iiiick'r si!e. Ilil ('. L. I'. Aet, ISrtti. <'liti/)-
iiiKii V. I)i hiifiiii', "> L. .1. l.'tS, ( '. L. Chaiiil).
lluriis.
The )ihuiitiir had sued out an attaehniont
au'aiiist ilefendaiit, and wont down to the County
(Niiii't to [irove his ehiim, \\\w\\ a record sliewing
iiiti iliicutoi'y juili,'inent signed for want of u lilca.
hcfiiiilant aiijilied to ]dead never iiidel)ted, on
tiie iTound that such jilea liad l)uen tiled before
si"niiig the judgment : -Held, that the aj)j)Iiea-
tiiiu was rightly refused, for defendant should
have moved against the judgment if irregular,
;iii(l ciiuld not plead until he had put in special
l«ii!. ';//''.'/ V. <>.ir <.»• 15. '.WX
Held, also -Draper, ('. .!., doubting -that al-
tli(mi,'h defendant had not put in special bail, his
fdunsel should have been alloweil to cross-
examine the plaintitl's witness, and give evidence
ill mitigation of damages. III.
A judge at nisi prius nuvy allow the counsel
fur another creditor to cross-examine the plain-
titl's witnesses and to address the jury against
the plaintiff. Larlrt \. JJakcv, 13 C. V. oOt).
In an action under the Alwconding Debtors'
Act, upon a motion by an attaching creditor,
1111011 affidavits which shewed fraud and collu-
siiiii between the plaintiff and defendant to the
piejudice of the other creditors of the defend-
;iiit, a new trial was granted. //*.
One M., an attaching creditor of defendant,
aiiplied for a new- trial of this cause, which was
granted on payment of costs. The rule was
taken out but never served, and subsequently M.
gave plaintiff' notice that he had abandoned same.
On application by plaintili', on notice to M., to
!>iiew cause why said rule should not be dis-
iliarged with costs to be paid by M. : Held, that
the application by M. was in the nature of a
Liillateral proceeding, and though lie might,
wlicii vulnutarily seeking the aid of the court,
luive been ordered to pay the costs of opposing
tile rule which he had obtained, lie could not
iKiw lie ordered to pay the same when brought
liufore the court by compulsion, and not biiiig a
li;iitv to the record. Laris v. Huh; r, 14 (,'. 1'.
issue between claimant
l)iii/li v. l.w^hir, 1(! C
IViriu of interiileader
and attaching creditor.
1'. '_'(;;t.
The fact that a simple contract creditor has
sued out an attachment, does not atl'ord any
ground for coming to the Court of Chancery to
liave a conveyance alleged to be fraudulent
against the creditors of the debtor aet aside. The
creditor must first establish his right to recover
at law. Wliitiiii/ V. Lnirrd'xjn, 7 Chy. G03.
IV. I'ldoiurv AS nKTWF.KN Arr.vciirxd CrtKOi-
rolls AND III'llKliS,
A cognovit given by an absconding debtor to
defeat claims of criMlitors was si;t aside on appli-
cation of bona tide creditors, anil the money
made on execution under it ordered to be di-
vided. Jlinjiii V. J'iiiiltn; ,'{<>. S. r>74.
The 2 \Vill. IV. c. .'», gave priority to the
creditor suing out the lirst attaehineiit under
which the sheriff seized, to have his debt satis-
lied out of the goods in pnifereiice to other
attaelinient creditors who might obtain judg-
ment and execution before him, where there
were no laches on his part in the proceeding to
judgment. (lUnilil'' v. Jiirrin, .TO. S. 27-.
Where a debtor assigiu'd to a creditor pro-
perty, which was seized Iiy the sheriH' on several
executions received on the same day, and these
writs were subsequently satistied by the sale of
other property of the debtor, but before they
were satistied, .and a fortnight after the assign-
ment, an attachment against the debtor's pro-
perty came also into the hands of the sheritF ; —
Held, that the proiierty assigned was secured to
the assignee against the attachment, although it
liiul been liable to the preceding executions.
Jfuokrr V. JarrU, G O. S. 439.
Where a party serves process on the debtor
personally before attachments issue, and obtains
judgment before the attaching creditor, his exe-
cution has priority. Jiaiik nf lintisli Xorth
Anwr'ica v. Jarna, 1 Q. B. 182.
Semble, per Robinson, C ,T, , that a writ of
attachment has relation to the time of its being
issued, or perhaps to the teste. Per Macaulay,
0. J. C. P., Burns, J., Esten, V. C, Spragge,
V. C, that it only takes effect from the time
of seizure. Kiinjumillv. W'arrenei; 13 Q. B. 18.
The placing of a writ of attachment in the
sheriff's hands does not of itself bind the goods ;
the writ must be levied on. Potter v. Carroll, 9
C. P. 442.
Where the creditor at whose suit the property
is first attached fails in his action, or is satistied
his debt, and the goods are restored to the
debtor's possession, who disposes of them : -
Semble, that a second attachment will not de-
feat such disposition. Ilowtll v. McFurldiie, 10
Q. B. 4«».
The plaintiff obtained execution against A.,
whose goods were then under seizure upon an
attachment. The sheriff, under C. L 1'. Act,
lS.")ti, s. 53, having sued and obtained payment
of a yum due by one of A's debtor.s :- -Held, that
such money was not liable to the jilaintiff "s exe-
cution, but went to the attaching eri'ditors.
Caiiii V. Thomas, 17 Q. B. 9.
A. sued out a wr
SCI Hiding debtor as
tion, served the writ on him in New York on
the same tlay that an attachment issued against
him here, and obtained judgment and execution
before the lirst attaching creditor :— Held, that
to entitle him to priority, he must also shew
that his writ was served before the attachment
issued, and no evidence being given to shew at
what time of the daj' either event took place,
that the attaching creditor's claim must prevail.
Qurere, whether a service out of the jurisdiction
would be sufficient, even if made before the
it of summons against an ab-
vesidiug out of the juriadic-
I
^
7
ABSCONOrNO DEBTOR.
f :.
attachment issued. DniiUlv, Flf-.dl, \~ (). I?.
All attac'iiiii'iit \v:w issiUMl a^'.iiiiHt ik-'fi'iidaiit on
th« Otii .Inly, ami i»ii tlio n;iiia' day ;i mim-
liiuiia was K.'/vcil uimiii liiiii aliinad, at tln! suit
of (iiiu II. Within six iiniiitlwi tli>< jilaiiitill's
sued out aiiiitlu'i' attai'iiiiicut it . ">.'tl>.
lIoUl, that on the allidavits liled no ease was
made out for setting aMi, 's. •2-2, to set 'aside the judg-
ment and execution of the plaiutitf for fraud and
collusion : ,Scnil)le, that the plaintill's claim
need not Ijc unfounded or fraudulent ; a lioiia
(ide debt may lie sued f(jr, and the action bi'ought
in collusion, &e. II7«;a v. Lu;/, i:i('. I'. •is!l.
See also Iliriiii v. H'/kc/, I IC. I'. .")l ; J>ir/.:-uiii
V. MrM„/,„„, //>. r.-JI.
v., a sherilf, between the Ttli of May and the
4th of August, received se\eral 11. fas. against
the goods of deft'Uiiant. (tnthe Kltii of August
he received one Ulion wiiieli this action w.is
founded. I'.etween tile Itli .•md Itith of August,
two attachments were placed in his h.inds, and
after the IGtIi several more. 'The shcrill' treati'd
the plaintiti"s ti. fa. as sub.-icijuent to the attach-
ments, and returned it nulla bona, upon which
this action was brought for a false return : Meld,
that the writ of the Kith of August having
come into the defendant's hamls while the goods
of phiintiir were in eustodia h'gis, it attached
prior to the attachments, and (Uiglit to liav(,'
been paid llrst. I'ot/ir \. Cirrull, .
See also, Curnill v. /'(/.'/,,-, !'.»(,>. 1!. ;i IC.
Held, allirming the a1)o\e judgment of the
C. P. that an execution against an abscimding
debtor, issued upon a judgment entered up prior
to his absc(Uiding, was intitled to priority over
attachments placed in the sheiill "s hands liefore
such execution ; notwithstanding the juilgnient
was entereil up mion a cognovit in a cause in
which no process had been served or executed
before the attachments issueil. Itobinson, U. .).,
McLean, J., and Spragge, V. C, diiis. Cdrrnl/
V. Potter, 1 J:. & A. 341 ; 7 h. J. 4:.'.
When it is necessary, in order to settle the
priority of iucund)raiicers, to enouire whetlun- i
(larty sued was an ab.scomling debtor « ithin the
Act, this court will do so ; and th.at, loo, altho\igli
ilcfendant in the action may not have takiii any
steps to set aside the attaclnnent at l:iu. I'mil:
ii/ Moi,/r,ii/ y. /liiLi ,;'.) CUy. '.)'.
Held, on rehe.iriug, allirming the decree, th.it
the bona tides of proccediug.i taken against an
aliseonding debtor to obtain priority, could bi^
(piestioned in this court at the suit of a creditoi'
(u- third p irty. //<. '2'.)S.
V. ."^r.rriNu asidi; ArT.vcirMF.vr.
The court refused to set aside the attachment
upon the ground that thi! del)tor had been |>re-
viously iield to bail for tin; same cause of action,
and the bail had been dischargisl by a n^fereue:;
to arbitration. Moiii r v. McCiiii, 111). S. 77.
Where a plaintilF proceeded after more than
a year from i-ssuing his attachment, the proceed-
ings were set aside and a su[)crHcdeas lu'dered.
is, anil put in special
bail, a supersedeas was onlered. ' '/(//•/■ el "/. v.
MiilliTH, :i 0. S. ir)7.
Motion to set aside attachment and subse.pient
proceedings, under '2 Will. i\'. c. .'"), because
plaintill's were not inhabitants of the Province,
refused for delay in nuiving and insufliciency ot
atli.").■).
I'roceedings had in suits .against an ab.scoml-
] ing debtor, contrary to the statutes, may be wet
asidi^ at the instance of other creditiu's. Hnnl:
i;/' Mmitriitl V. Hiirn/iiiiii, 1 Q. I*>. KM.
An attachment issued by the order of a judge
in I'handK'rs may be set .aside by another judge.
Iloirliiiiil V. liiiir,', •_',-, Q. Ii. 4(J7.
VI. I'lMHT.DDrMfiS A(!.\rN'ST DKIvrol! OK An-
SCO.NDINd DkI'.TOI!.
Proceedings under 2 Will. IV., e. 5 by the
creditor of an absconding debtor. Averments
ne(;essary in the declaration. Amount recover-
able, '/'/luiii/isoii V. /''(in; (J (),. H. ,'tS7.
In an action by a sheritl", under the abscond-
ing debtors' act, U)r rent due on a lease to tlie
delitor, the evidence shewed an assignment (it
the reversion by the debtor, and receipt of :ill
and half a year's more rent than was due
thereon, and the jury found that the transui-
tion was bona tide as between the debtor ami
his ai
Ifel
ttould
.lii't t
till' nil
notjiju
iellilall
.Ippl'MI*
..rdere,
I
ABSTRACT OF TITLE.
10
hit as»i"iio('. Upiiii iiiutidii fur ;i lu'w tri:il :
HcM," tli:it iillliiiiiyli (inliiiaiily the cntirt
wciiiM ivi|iiiii' ii Ktriiiij,'!'!- I'lisi' .•iL;!iiii:liLrill' against a iiartncr ot tlu'
ali-riiiiiliii',' ilflitor, fur fiiiniM'tiiig tin.' joint lu'ii-
]nrt\, v.a-i liail ; I. l''or not statin;:,' that tlic
iilaii.till 'iiu'il iinili'i' that Att, a.'i ii'i)iiirLil liy ;icc.
•Jl'i, tlii'ii'^li it il ill stall.' that hi.' hail nmlcr hl'c.
o'l iilitaiiii'il till' oi'ilfi' of a jiiitgo to hriiiL? the
;i.'tiiiii; anil, -. l''oi' not hhuwing that notiti.' of
till' attaihiut'iit hail huuii sciviJil on (h'finilant,
ur that fill' /^iioils hail liciu attaoheil hy thu
li.naiT kIii'iIiV iliirin^' whose ti'iuirc of olHcu the
attai'limeiit hail issueil, or liy the iilaintill", his
sUL'cis.siir, the averment lieing merely that ilefeiiil-
ant havinj,' i)ro|)erty in his jHissfession (whieh
the slii'iill' might have sei/eil, lint diil not seize,
whil.-'t till' property was liahle to seizure), con-
M'rti'il it to his own UUL'. /'(ii/lurs. /Jriiicn, 17
( '. I'. :iS7.
SemliK', that the limitation iimler the statute
of the ilufeiiee to matters available against the
ilulitor at tlie date of the attaehnient, refers to
the pni.-ieeiition of elainis arising before the issue
of the writ : Hut llelil, that the count was not
liail for not stating that the attaeliiiig creditor
had pniveil his debt before judgment, or liled
an allidavit of the sum justly due before the
i.-isue of execution, for that the maxim omnia rite
eyse acta, &c., applied. ///.
Jleld, also, not neeessai'V to allege that the
property attached was insutiicient to satisfy the
execution, or what return the sheritl' had made,
fill' the suit having been brought by order of a
judge, it must be \)re,-:umeil tiiat he was satis-
lied a.-i to this. ///.
Si nihil', that it was unneicssary to allege more
than till' fact of conversion, leaving it to to be
bIk'UII that there was such a destruction of the
joint in'opi'i'ty us would make it bctucen eo-
jp.irtners a conversion. ///.
Held, also, that it mu.st be assumed, if there
I VMS any slicrill' having the execution of the wiit
I in tlii- i:ue;i', lliat it ua.-i the ]ilaintitr. / li.
\'ll. MiM i-,i,i..\Ni;iir.i ('.\sf;s.
The \iayec of two jiroinissory notes for l.''J,')
leach, having idiseonded, is not thereby disabled
Ifriim suing the maker upon them on his return,
Ibccausi' ill his absence an attachment has been
jtaki'ii out against him by A., a creditor, for
Ifl'l. Sliiti' i-ji V. 'I'linici/, 7 'i'. I>. i^.S.
'I'lie iilaiiitiir coiitiacted to build a mill dain
Ifei' defendants. II. and I'. Xi'cre his sureties.
|\\ lull' cai'iyiiigoii the woi-l;, he assigned totlieiii
tile cmitiMet, and he aftcrv.ard.-i abseomh'd, and
ai aU.ieliMieiit was issued agaiii.;t him. 'The
E- i;;iieis c'anied out the contr.u't, and then laicd
lii.i name fur the' money due. After action
briiiiclit this attaehnient was withdrawn, and
iefeudants released by the attaching ereditors
toiii any claim by them to the money that might
be recovered in this action. Within six niontliH
another attachment was placed in the slu'riH".s
hands, of w hich defendants w I're duly iiotilit^d ; —
Held, that the assignees weri' entitled to recover
as Well for the work done l>y the (ilaintitl' before
as since his departure ; and that the defendants
Jiaying would not be liable to the creditors of the
plaintill'. C/dd: v. I'riiin/fiuf , / ul.,UQ. l\. '2'M.
A security taken for a bona tide loan of money
to enable the borrower to lea\t! the eountrv in
order to escape his creditors, is not fiaudillcnt
and void. //J.
('., one of the obligors in a bond of indemnity
to the sheriir for seizing under .'in attachment,
obtained a linal order for protection from process.
.Judi'inent was obtained in an action against the
shcrill' subscoucntly to the tiling of the petition
and the bond, but was not referred to in (J. 's
! .schedule thereto: Held, thatunder l!t&20Viet.
! e. itH, (.'. was not discharged by such tiiial order.
j Held, also, that the obligees were not entitled to
I set oil' against the sheritl' » claim money whieh the
' shcriir had applied from the sale under the
attachment to pay executions prior to such attach-
ment. Miiiiilji V. Hull ft (I I., 7 < '. 1'. 1").
Semble, the "J.S Vict., e. '2'i, exeniptini' certain
articles from seizure, does not apply where the
debtor has absconded leaving the goods with hia
family. J'njiiiu v. Jhtiuil.-nni, '1\ {}. 15. 41.
If (>'nii:i: I'iohi:!-.!)-
ISIJS .MJAl.NSI'.
I. Jii Fticii'lth-iiirr Sii'il.'i -Sit' Moi!'rii.\(;K.
•1. In Olllir ('(fscs — Sri-'. I'l.K.VKINd IS
I'X'L'irv— l'u.\i'ru'i; i.s J';(a ns.
For the practice in proceeding against absent
di'I'eiidaiits, under 14 & lo \'iet. eh. 10, repealed
by the V. L. I'. Act : See /////// v. Fori/, L' C. L
c'hamb. "JO'i ; ('((iiiiijli- v. Tdi/lor, '2 Chy. {JI7 ;
Duriiiiiis V. Kiiiiiiilii, "J (.'hy. 057 ; /."/i/c v. Il'i'/;-
■s/iiiili!/, ;! Chy. IO(i.'
AHSTUAC'T UF TITLE.
1. iJl rnw .\MI llAllII.I'riES ol' ItF.lilSTIi.^R:; —
.S'm' RKcisrKV Laws.
II. Os Sai.k ok Land— .S'cc Sai.k ok Lash.
I'^ll'eet of registrar's abstract a.s evidence of
title. A'.eo' V. j;,ii,l.-s, IOC. I'. •J0'_>.
Uefore an abstract was asked for the purchaser
had sold small portions of the land, and he and his
vendee had cut down some of the wood thereon ;
but the vendor notwithstanding promised after-
wards to give an abstract as demaiuled, anil de-
livered an abstract accordingly : — Held, that
the plaintifl' was entitled to have this abstract
veriHed, (lordoii v. //(inidrn, 18 Chj'. '2.SI.
II
ACCORD ANf) SATrSPACTION.
On rooc'iviiig an iilmtractof titlu iiimn aMiilo of
Innil liy nnlt'i' nf tliu Cniirt tliu imirIiiinci'
ll.'lM MI'VCII llayH within Wllicll Icl lllljcct til till'
I'oinpli'ti'iu'HM III' till' uliHti'iu^t, mill iil'ti'i' liny i|iii'n-
tiiill III its riini|ilitrni'«M i.H ili«|iiiMril iil', iinil till'
alistnirt niailr iiri'lot in tin: NcnHc nl li<'in;{ i'iimi-
pli'ti', Hi'Vcn ihiys til iiliji'it to till' title. Il, linw-
rviT, 111' takes his iilijcitiiiliH tii tlie title in tlu!
lii'st inst.uii'i', the MiiMti r will nut ^n into the
i|lleNtiiill iif the |iei'leetne.sM iil' the itliHtraet, lillt
will I'linline the |illl'ehasel' tn the iilijeeliiins he
has niaile tn the title. N'li iilijeetiniis iither th.'ill
thiise H|ieeilieally tilLrn \\\\\ \h- eiiteltaineil liy
tile .Masti'l'. 'I'lie iniliiiseil I'eeeipt.s Inr eiilisiilel'ii-
tiiiii nmney hIiuuIiI a|ijie;U' in :i |iei'l'eet alistniet,
at all events as tn ileeils e\eeiiteil lielnie the late
lej^'istry iii't. .l/''.t/i(///(s V. /,(V///, ;i('h\. ('Iianili.
i;. •..'t;:t". I'.nvii, .iz-z'/m'.
ACCHIT.WCK.
I. OK Hii.i.s iiK i'lxriiANiii: Sii Hii.i.s uk
KMIIANiiK AMI J'llOMISSiinV NilTKS.
11. 1>K OKI II i; Sri .Mink iPAi, CiiKi'iiiiAiiiiNs.
III. ( »K ( liiiiiis ,SVr .Sai.i; UK (ilinllS.
1\'. <»K 'rMi.i; -S>'> Sai.k iik I, ami Sam; ok
Lanii ii\ OuiiKit i)K iiii; C'liinr.
.\(.'CIl)EN"r.
1. LlAIUl.lTN UK CaKIIIKUS— .SV( ( 'aIIIUKII.S —
IJaII.WAVS ami liVll.WW CoMI'VSIKS -
Sill p.
TI. FltuM FiliK .S'o |''|l;i:.
III. FiiiiM Ni;i;i.ii;kn(K .Vk XKKi.KiF.NcK,.
IV. Fitiiji Di:kk(TI\ K ItoADs -,s'.'. \\'\\.
Death liy "aeeiilent eau-sed hy intnxioatinn" —
meaning of. See lUihhr v. ('/((,//, "JT ^i. \'>. 4;i8.
— « —
ArcuMriJci':.
Sir CiiiMi.NAi. Law.
A('( OIU) AND S.VnSFACTIOX.
I. Xi.w OK SinsirnrKD A(iiu;i'..Mi;Ni', 11.
II. \',\ lill.l.S UK I'ACIlANUi: AMI l'i;uMIS:-ul(\'
NllTKS, 14.
III. 15v A SniANci-i;, ID.
IV. I'i.kauim;, II).
\. Misi r.i.LANKiiLs C'askm, '2\.
\'l. lU ('m:i,iii'. --.SVc I'avmknt.
\'ll. SAI'ISFArllllN UK UllWKU -Sri DllWKH.
Vill. l'.\ 1'a\ MKNT-.V" I'avmknt.
1. \k\V ul! SrUsTiTLTKU AllIiKEMK.NT.
Senilile, that a idaintitl' may, aftur breach (if a
Bimiile contract, legally agree to take a new
n^reeinent to iltiliver ){imhIh, iVe., in lull i4.'\ti)ursuance of, and ever since
such agrceinciit, defendant had held, and still
hukl.s, such share's fur the plaintill's, and hath
been and is ready tu transfer them when rc-
iiuired : Held, plea bad, because it was not
shewn w hither the alleged agreement was before
or after the breach of the promise sued on. Ji'o:i
et III. V. J J iron, lU y. B. 407.
ras(>, fur injury to plaintiH"s reversionary
interest in land leased by him to defendant.
I'lea, that it was agreed between them that if
defendant would agree to pay him i'ti'i 15s.
fur the use of certain premises of his for one
year, the plaintill' would accept such agreement
m full satisfaction of the grievances eomplaineil
of ; that in pursuance of such agreement defen-
dant agreed to pay, and plaintitt' then accepted
the said agreement in such satisfaction as afore-
said : — Held, a good plea of accord and satisfac-
tion. Ckir/c V. A';//;/, i;{ ii. B. 18,5.
Covenant on a mortgage. Plea, that defen
daiit conveyed to the plaintiti' his equity of
redemption in the land mortgaged, which the
plaintill' acccjite I in satisfaction of the claim.
It appeared that when the plaintitt' commenced
12
13
AC'COUl) AND SATISKACTION,
14
II tii<'
mils,
,1 III''
/i< i-'ii'ii
\\\\\w\,
iiltit
•s, tlif
■iHi'''""'
Nvlliill
UmI I'.V
ly mill
X Hiilli-
iiiii'li't>'
\ii' unil
:iki' tlie
IKit to
llfUl.
lint coll-
1, whicli
•;lU(ln, i«
tliat tlu;
u tiiui' of
i.tshi'wn,
(li'l>ti>i-»;
(t liu held
ic circiiiu-
re (provi-
Hiiiii-ikiii
IVka, that
it was
plain -
(ought of
k, wliicli
use, anil
. that the
pt ilcfeiul-
vrus so to
thu sail I
vcr si""^"
;ui(l still
iiiil hath
whuu ve-
it was not
was IjL't'ove
(I (111. /iVff
;viTdiouaiy
(Icl'emlaut.
,i;iu that it
I Jl(>-2 li'w.
Ilia for one
iiurueiueiit
jomvlaiiiL'il
loiit ilefeii-
111 accepted
In as afore-
lud satisfac-
Ithat aeteii
. equity lit
which the
the claim.
I commenced
to
tllJH llitioll, (Icfrinlilllt ntli It'll to I iilivry till' IiiimI
ill full Hiiti»fi»itiiiii of till' "li'lit, liiit the |iliiiiitiir
ili'i'liiu'il. l'liiiiititr'n;ittoriiry ,ift( rwjinl.s.lirmini;
timt oiH' ''• would liiiy till' liiiiil mill p,iy tin'
uiortjy ili •
fciiil.'iiit to tilt' |ilaiiitill' iiiHti'iul of to (I., mill
left «itli thf iittoriiry. Afti'rw.iiil.i, howt vcr,
it ,'i|i|ii''ii'i'il that < I. Iiiiil iifi'rrril to nnotlur lot
owiii'il hy ilffi'iiilaiit, mill III' ri'fiisi'il, tlurffnrf,
toi'iirrvo'it tilt' aKrt't'Uii'iit ; llfM, tli.ittln' yhn
wii:i not |iiiivtil. Il'iiif v. Ilnil'ii, |H(,». 15. mi.
'I'll nil ai'Hiiii on the I'oninion rotints liy iilniii-
till's nr* I'M't'iitorsili'lenilmit pit'.iileil, on njuitnlili'
priiiiiiil'i, tliat ilcfi mlmil mul trstatnr were p.ut-
\wv* in flic |iui'i'liaHi' of I'crtiin Limls in the
I'uiteil States of Anurii'a, mid also in mnu'
(liari'H ill a certain railway conipany for wliicli
tlicv were to pay in eoiial prii)iiirtions juul were
t.)Hliaieei|ually in tilt' prolits and Iomscs, nnd that
lieiii" so iiitcicsted, it was after the death of the
testator aKi'ccil lictweeii plaiiitilV and defendant
that if defemlant would assiiine and pay the
e ills on the railway sliaren, take the stock as his
own, and relieve the plnintilV from all liahility
tlieieoii, MO claim should ho made mion him
lor tlie lialaiieo due on the lands, hut that
plaiiitills should liay the sani" ami the payments
Ml made should heeonio (is list charge upon
tile lands. The plea then :. rred |)crfonnance
III the agrcoment on the deicndant's part :
Held, on (Icmiirrer, n good pica hotli as a legal
and ci|uital)le defence, and that if it was neces-
s'lrv to the validity of the agreement that there
sliiiild have heen a writing it mnst he assumed
oil demurrer that there was one. L'Inrh d al. v,
l\,n-nll, 17 <'. l". .");i8.
Til an action liy husliand and wife on a note
for .SdOtt made to the wife heforo marriage, do-
fi iidant pleaded that the wife was formerly the
willow of one ('., to whom defendant had heen
inilehlcd in .'<400, that she sulisei|iicntly took out
letters of administration to his personal estate,
and that afterwards the defendant hoeame iii-
ililitcd to her ill S>-00; that the note declared on
was for these two sums ; and that after its ma-
turity, with the knowledge and assent of her
liii.shand and co-jilaintitl', she agreed with defeii-
iliint to accejit from him a conveyance in fee of
certain lands in full satisfaction and discharge of
licr I'laim on said note ; that ilefendant accord-
ingly ixecutcd a projier tleed of said lands to
lici', duly registered, anil tendered the same to
lier liefnre action, and that she never expressed
any dissent from said agreement until after said
tender; Held, on demurrer, a had plea; 1.
as not averring that there was no marriage
settleincnt, so as to hring the case under the
liriivisioiis of ('. S. V. i\ e. 7.'1. -. Because
the ac'iird and satisfaction attempted to he set
11)1 lieiiig, as to two thirds of the amount, in res-
sju'ct of a sum due to the wife in her rejirc-
^ fentative character, was not pleaded ;i8 having
heen made with her hushand. .'t. neeause
I what was pleaded was the agreement to aeee] it
la deed in satisfaction, hut the acceptance in
Uatisfaetion was not only not idcadeil, hut was
Ishewii hy the plea not to have taken place.
|if"/.M(w ("/ III., V. JMiiiiswi, 1!) ('. r. •2{".l
Sei. fa. upon a judgment for ^'iOOO against
Idefeiiilant as administrator of M. on a homl in
Ithat sum, conditioned for the payment of $1200
liy iiiht.iliiitnt-, w ith a sii;;gestiiin that two iiistal-
mi'iits \M're due and iiniiaid. I'lca, mi ei|nitahli'
gioiiiiih, that lii'fore tlie mi. fa. issued it was
agri'cd lietwecn the plaintitr and ilefenilanl,
with several others the heirs at l.tw of M., that
they should convey to the plainlill lln ir interest
in certain laud of which as sinli luirs ll ^y were
seized in fee, that the ciiiisidcialioii tV''<'f"r
shoidil he .■¥'J(KM>, and their intcicst slmu; M.e
treated as so inucli in cash, which shoiild^v
.'iiililicd as a |iaynicnt hy Hie estate of M. to tic
iilaiiitill ; that the defendant and otliein accorii |
iiigly eoiiveycd (heir inlcii':.t in the land to tin;
plainlill', and the plaintill' aceeplcd such coii-
\eyaiicc as representing .^'JCMM*, and elediteil the
estate of M. with that sum ; that the only deht
then due hy the estate to the plaintill' was the
said Judgment, mi \sliieli the total aiiimint then
lint! and .accruing due was less than ?*V.'(KM>, wlierc-
liy said judgment was satistied ; and such ereilit
was the only consiih ration fur the cmiveyance :
Held, on ileiiiiiirer, that the plea shewed a
good defence. W'/ii/d'anl v. Mi- 1. mil, "JS (^>. !>.
The plaintill sold to defcndaiii, hy dcid the
right to nianiifaetiin^ and sell their patent right,
for "Kinney's Metallic Waggon Seat," for the
time in the patent mentioned. Defendant cove-
nanted to tnaniifaetiire at least twenty per day,
and as many more as theilemand should rei|nire,
paying each of the plaiiitills one-half of a royaltv
of twenty-tive cents on i^acli seat, and fiirtln i,
to supply .MeK. i^ Co. with at least '-'00 seats per
month at \Kh\. each, pursuant to an agreement
hetween them and the plaiiitills, paying on these
a royalty of "JOc. to the iilaintill's. There were
other covenants hy ilefendant to manufacture in
a workman-liko manner, &e., and to make use of
.all nuians to introduce the seats and make them
known. The dcelar.ation set out the decil and
.issigned hreaclu^s of all the covenants. The
third plea was, that after hreach it was agreed
hetween the |)laintill's and defendant that they
should release each other from the )ierformanco
of their rcsiiective covenants, and all rights of
action in respect thereof, and in consitleration
thereof defendant agreed to manufacture thenco-
fnrtli only so many seats as wmild uiqiply the
demand, ami the idaintitl's acceiiteil such agrcc-
iiieiit in satisfaction of the cause of action
declaretl on : Held had, as ])leadeil to the whole
cause of action, whereas it could only he an
answer to the hreaches of the covenant and not
to the covenant itself, for it sheweil no release,
hut only an agreement for one, and no satisfac-
tion hy deed ; and hecause the satisfaction was
insntlieient, the new agreement heing merely to
manufacture a less numher of the same article ir
the .same way, and on the same terms. MvUiri'nii
it III. y. Tiiniliiill, :t2 Q. R 407.
I Seduction Vlea, in efTeet, that it was agreed
I hetween plaintill' and defendant, tliat if defenil-
i ant wouhl agree to take and support the child,
the jilaintifl' would accept the same in satisfac-
I tioii : that defendant did so agree, and plaintill'
accepted s;ud agreement in full satisfaction : - -
llehl, plea gooil, without shewing jierformanco
I of the agreement. Mclliiijli v (Inar, 18 (". V. 488.
111. I'i\ Ull.l.S OK Kxi'llAMiK .\M> I'iiOJllStiOKY
NoTK.s.
Where an action is for tort, and the di'mages
in the discretion of the jury : - Scnible, that a
15
ACCORD AND SATISFACTION.
16
I
l^-
i«
promissiiry uutt- luiiy lin taken in satisfaction ;
the principle that a leys sum (if money cannot be
taken in satisfaction of a greater not applying.
Lam V. Khiij.<)iiill, (> y. H. oT!*.
The note of one of twr. joint ilelitor.-i is no
fjatisfaction of the debt i- lielil, jilea liad on that
ground, and an attempting to nhew lialiililify to
a third party, an indorsee, when the note as
iiloadeil was evidently not negotiable. Lkidhi'/
V. Afc/><<,:ii, HI 15. ':«.
.\ssiinipsit on a- note for L'T."). I'lea, as to
£.')(), another note taken on aeconnt, endor.';ed
by plaintitl's ami outstanding. Ileplieation held
liad in form, on special demurrer, '/'/iniii/i-niii imiss(U\y notes of a third person in satis-
faction, though for a less s\im in amount, is a
"ood satisfaction. Iliiii.'H'iiiiihi v. Miu-iliiitiilil,
4('. P. 1!)0.
Defendant leased to I"., from whnui lie took a
note 111 payincnt of arrears of rent. I'", let the
jilaintill' into possession of the premises, and the
plaintilV made certain payments to ilefendant
on account of rent, for which defendant gave
receipts as Utr premises leased to I'". On plea
(if rim III iirrhrr from F. : -Held, that the
plaintifl' could not insist upon the taking of
the note as a discharge of the rent due from K.
Ml- Li oil V. ihiirii 7 c. r. ;5.j.
A ])lea to an action on an agreement alleged
that defendant entered into a new agreement
with the plaintiff, that tlefendant woidd pay
a certain sum, and .seenre the same by his en-
dorsed note, and that the plaintid' accepted
same njion certain terms, and alleged a ten-
der of such noti.' by defendant, and a refusal
by plaintilV : Held, bad, on the ground that
the delivery of the note was an essential jiart
of the consideration; that the plaintitl' was not
bfmnd by the agreement nntil he had acee])ted
tlie note ; and thenifore iiu had rctracteil before
he became bound. Slm-iir/ w llitii:si)ii,7V. V. 1(J8.
I'laintifT holding defendant's note (not nego-
gotiablc) payable on demaiul, for i'.")00, in tran-
sactions witli one Jteed (a partner of defendant),
gave it to liccd, taking in return his note f
]ileadcd the delivery and acceptance of the
jiromissory note of one of them in satisfaction.
.Vt the trial the plaintilVs' book-keeper said
that he iircseiiteil the account, and took the ■
note made by one defendant in settlement,
writing at the foot of the aecoinit, "received
])aynu'ut by note." 'i'he learned judge thei'c-
u|iou directed a vcnlict for dci'eiidants : Held,
that the ]ilca was good, but that it should have
been left to tlie jury to lind whetlii'r the note
was accejitcd by the plaintill's in .'■■atisfaction.
/''//•/ J>itiiliiiiliiii lliirliiinr (,'ii. V. Si/iioir i/ nl.,
IS (,». I!. oAil
Action on a. policy of insnranee, alleging a
total loss by lire, and that defendants had by
resolution admitte. 4'J.").
I'irst <'ount, for goods sold and deliwrcd, &r.,
second count, on a promissory note made by I!.
i*t S. ])ayable to ilefendant or order, and by di •
fendant endorsed and delivered to plaintill'.
I'lea, tiiat before action defendant "dclivcrci
the note in second count mentioned to lli'
plaintitl's iu full satisf.-ietion and discharge of lli..
causes of action in the .said lirst count nun-
tioned, and the jdaintifVs then acceiited ami
received the said note in full satisfaction ami
discharge of the said money, and the causes nl
action in respect thereof in the lirst count nun-
tioned. " Demnrrer, because the note in i|Mi' •
tion was payable to the order of dcfcnd.ud, airl
the jilea does i it avi'r that he endorsed it t"
plaintilVs ; Held, plea good, as the delivery anl
acce)itanee by plaintilVs of the note in ((Ucstinn,
though not endorsed, was, under the authority
of Hanseombe r. M;vcdonald, 4 ('. 1'. I'.IO, a g 1
answer to the action. Jic-'jiir.i it a/. \. Bint'j,
13 C. 1'. 3:27.
i;
ACCORD AND SATISFACTION.
18
Dttlaiiition by I'.'f? adniinistratiir on a iiotu
m:iile liy y way oi' acuord and Hatisfaction, a
certain proiposition made to tlic ])IaintitV and l>.
as curators of I', "s estate in Montreal, wliicli was,
in effect, that one It. wonld endorse defendant's
notca for 17s. <>d. in tlie f, payalilc at certain
dates, on 1,'cttin;,' a full discliar^'e ; .'oid the
defendant averred that the plainiitl' and 1). as
such creditors " agreed to and a(i'e|)ted the
terms of the said iiroposition," and defcndaid
made and 1!. endorsed his notes aceordinf,dy, and
delivered the same to the aj,'ent of the said
curators in full satisfaction and discharj^e, and
as a coni|ioHitioii of the causes of action sued
fur: llelil, jilea had, f(U' not averring either
tiiat tiic notes or the agreement were accepted
in satisfaction or discharge. Miirfdr/niii v. /'i/tiii,
•2i (,». r.. 474.
declaration, that on an accounting between
tlicni defendant's indelitcdness to ^ilaintill' was
tlxcd at a certain sum, to b(^ paid oil' as stipula-
ted, one of which payments defendant under-
tonk to make to A. & Co., to whom plaintiff >\ as
liable, it being also agreed that plaintiff' should
towards that liability provide an additional
sum by a day named, to be re]iaid by defen-
dant to him ; anil further, that any error in
Haid accounting should be corrected, and plain-
till' should give up to ilefendant all notes and
securities belonging to defendant, which jilain-
tiff before and at the time of the acecmnting
held, cx-cept, &c. Breach, that although a
reasonable time had elapsed, &c., defendant
had not paid A. & Co. I'lca -after alleging
error in the said accounting, (specifying it) and
that the sum agreed to be paid to A. & Co. was
comiiosed of variou.s notes made by defendant
tn plaintiff' that after said accounting, an 1
before action, plaintiff' endorsed said notes to
A. & Co., in settlement ot their claim, of which
i A. k Co. had given defendant notice: — Held,
I plea b:id, as not .shewing that the note.s, which
[had been endorsed away, had been given fori
I the cause of action declared on. Juikh v. CVon
[«ro», ICC. r. 271.
Declaration by administratrix of A. 'on a note
I for .SltO, made l)y defendant, i)ayablc to A. or!
ibearer. I'lca, that at the nuiking of the note, '
[defendant owed A. S\i\0, and said note was by I
jmihtake made for .S140 : that to correct the I
[error, defendant innnediately made a second |
Inote for .^U'lO at A.'s rei|\iest, who ' jceiveil it in j
Ihdl satisfactioi\ of the note sued on, which was
linadvertently left with A., and after bis d(^Tth '
Icinue into the ]ilaintiff "s hands ; that the plain- '
also got the note for S\'>0, which she trans- i
pcrrcil to one F., who sued defendant on it, in I
■ Uivisiiin Court, which is st'U ]icnding : j
lii, on demurrer, a good plea, notwithstand- i
;it the Sj.'iO note was not averred to be nigoti-
»blc. .!/-•//. »/■// V. Cr;/s,/(ilr, i.'. (}. 1\. 4(i0.
To an action for goods sold and delivered,
cfiuilant i>leadcd, in effect, th.at upon an ao-
luutiug !*()() and no more was found duo on
Iich accounts ; and it was then agreeil that de-
endar.t should, and he did deliver to plaintiff,
(rlio then accepted ami rei-eived from defendant
certain )u)te for ■'*l)0, in full satisfaction and
sell irgc i,f the severid causes of action, anil of
tlic iilaintill's costs of suit; -Held, a good
■a ill accord ami satisfaction. Fixaiian v.
fcC'rIlii/, I'JC. r. 'J'J'J.
.Vction for good,-, sold. It appeared that
defendant, on a|p|(lication for ))ayment, sent to
tile plaintill his own note, with two endorsers ;
the plaintiff wrote acknowledging that it was
received, and " ])laced to your credit, with
thanks ; the indorscrs arc not known t'l us,
but on your staling that each one i.! good for
the amount, we .■ueeiit the note in .settlement
of your account to date." .\t tile maturity
of the note, ilefendant wrote exi)res.sing regret
at his inability to meet it, and rc(|uestin"
plaintiff to draw upon him, and that ho eouul
hold the note until |iaynu'nt of the draft : he
subseipiently telegra]ilicd him that he would
remit in a few days : Held, a ipiestion, on the
evidence, for a judge or jury, whether plaintiff
had aecejited the note in satisfaction or dis-
charge, or not, and it having been found tliat he
had not, the court refused to interfere, (•'rem-
iro'H/ V. /'(//r,//, '_'•_' C. 1". :{")•_'.
Declaration .ag.ainst It. & II. for gmids sold.
I'lca liy defendant II., on eiiuit.ible grounds, in
substance, that ho and It. ]iurclia8ed the goods
while in ])artnership : that afterwards he retired,
\y. taking his ]ilaee, and It. & W. assuuiing the
debts of the old linn, including this claim ; and
that the plaintiff', being aware of this arrange-
ment, took the note of the new lirm, 11. & \\'.,
for his debt : Held, a good plea. IViiNs v.
iMAiisoii '/ III., ;$•_• t). 15. :m.
The third plea alleged that the ]ilaintiir had
noticri of the arrangement, as in the former plea ;
and that, in consideration that W. would assume
the liability of H. for this debt, the plaintiff
accepted It. & W. in place of defendants, and
took their note, and relinfiuishcd his elaira
against H. : - Held, good. //».
The fourth plea averred satisfaction of the
plaintiff's claim by the delivery and acceptance
of the note of It. &'\V. :— Held, clearly good. Jh.
Declaration on a special contract under seal,
by which plaintiff' was to ilo all the work on an
extension of defendants' railway, alleging non-
payment for work done, &■'. I'lea, as toS15,0(K),
parcel, ite., that before action, at plaintiff's
reijuest, defemhints delivered to plaintiff their
acceptance of his bill of exchange for said sum,
« hich l)dl was current at the conimencement of
this suit, and was afterwards paid : — Held, on
demurrer, plea good, following Henry r. Earl,
SM.Ot \V. i2i;S, and Homer c. Denham, 12 Q.
I'.. Si;(, note. S/Hiiih/y. Thr Mhllnml li. \V. Cu.,
W?, (). H. ()01.
.\ mortgage was made for i'llOd, payable by
instalments. The third instalment was paid.
For the lirst and second instalment the mort-
gagor gave two promissory notes, bearing even
date with the mortgage, and took the following
recciiit from tin; nuirtgagee : " Received from It.
I!. W. his notes for t'2tH) at four months, and
C20() at eight months from the first of .tunc last,
in full for the same amounts dne on a mortgage
made by him to me, maturing at same date."
And the following endorsement was iiiftdc oi\
the mortgage : " lieceived from 1\. B. W. two
notes of hand, endorsed by L., for L"200 each, to
com|ilct(! tlie two lirat payments on the within
mortgage." The notes were not paid at matu-
rity, and in a suit by the assignee of the mort-
gagee to foseclosc in default of jiayment of the
lirst aiul socimd instalments: — Held, that the
light ti' TLJ^'ver upoi! the mortgage was only
%
19
ACCORD AND SATISFACTION.
20
i';i
suspended, and not discharged, by the taking of
the notes, (lihh v. Warren, 7 Chy. 4%.
in. By a SritAN(iKii.
To ail action against r.ttorneys for negligence
in not registering a mortgage from I), for ,t'7"iO
to plaintifl's within a reasonable time, and so
permitting a sulweijuent mortgage to be regis-
tered before it, tlie defendant pleaded that after
breach the plaintiff' accepted another mortgage
from D. on other land of I), for t'T.W in fnll
satisfaction and discharge of defendants' jironiisc
and all damages accrued to the plaintiff from
the breach thereof : Held, a good plea, it being
no objection that the accord was by a third
person, a stranger to the action. I.i/jirli v.
Wilson, 22 Q. B. 22().
IV. ri.r.AiiiS(i.
Accord witli .satisfaction. Held to l)e a good
plea in covenant. Baijnnl . B. .392.
Qua're, whether a surreiiihr. besides ncoev
sarily discharging all undue rents, may not alsi'
be pleaded ctiuitably by way of .acconl and siit-
isfjiction of rents over due. lintdjiilil v. //wyi-
kins, 16 C. P. 298.
! •'
21
ACCOUNT.
22
iatist'action.
same ciivo-
V. Mi.scELi.ANEor.s Cases.
Where .a testator had bound hiiusulf by bond
t(i m\ to his luothei' Cl'2 10s. aiimuiUy, and:
(livi.^ed iiait of his hinds to his brothers on eon- ,
thtion that they shoidd jiay to liis inotlier t'12 I
lOs. per aununi, and jiay all Ins just debts, and
made them his exeeutors : - Held, that at law the
If'aey eould not be eonsideved as a satisfaetion
lit the annuity in tiic bond, and that the mother
was entitled to both. Coir v. Co//, 5 O. S. 744.
Defendant jiurehased jiersonal iiropei'ty from
the iilaintill, and gave him liaek a mortgage on !
it to secure the inirehase nioiu'v, and agreed that I
in default he would give >ip the property, and I
Iilaintill' should sell it to pay himself, anil give i
tiie overiihis, if any, to defendant, and at the
same time defendant gave the plaintill' his notes
fur tiie purchase money, whieli were not to be
acted «u if the ju-operty were given up. On
default the property was given up and sold
by plaintill' for less than the mortgage money,
and an action was then brought on one of the
notes to recover the dillerence : — Held, that it
would not lie, the notes Laving been satisfied
bv the surrender of the property, according to
the aLireement. Sinilh v. JitiiMii, 4 0. S. 134.
(ioods agreed to be accepted in satisfaction,
must be actually delivered ; readiness to deliver
will not do. Thomas v. Ma/lori/, (J (^. B. 021.
S. conveys lands to 11. with full covenants.
Iv. conveys by a similar deed to plaintiff. S.
dies leaving a wife, who demands her dower.
R. jiays plaintitl' a certain sum in accord and
satisfaction :— Held, that payment in accord and
satisfaction by 1!., and acceptance, discharged
plaintill 's claim against defendant, executor of
S. Cnlhlnrt V. .S7(v*/, !.»C. P. 11"..
A. iiaviug taken a likeness for B. agrees to
lake in payment S'-'O in cash, and a cognovit for
870, payable at a future date. After receipt of
the !i'26 and tender of the cognovit, defendant
refused to ileliver the picture. The plaintiff
hidught replevin : -Held, that the agreement
for payment was a waiver of the right of lien,
hut did luit amcuint to an accord ami satisfaction.
Ihnipsiil V. f'o/'.vi,/), II t'. V. 4()'-'.
It is tiie duty of a i>arty setting up that a
settlement of a claim for injuiies has heeu ob-
tained by misrepresentation, to establish not
only that the settlenu-nt has been so obtained,
Ijiit, also, that the anumnt paid is inadecpiate ;
and where there was an entire failure of evi-
dence on this latter point, a new trial was grant-
ed, cm paymeutof costs. Hmrr v. (Irnnil 'J'niiil:
i;,i;hn,,/<'u.. inc. \: rm.
heclaratiou in seduction, by the fathi'r. I'lea,
in ell'ei't, that after the seduction it was agreeil
hetwceii Iilaintill' .md defendant tluit if defen-
dant woidd agree to support the child at his own
costs, Ac, plaintill' wnnld accept the same in full
safisl'actiiiu and discharge ; and that defendant
did agree so to ilo, and plaintill .accepted said
aereement in full satisfac^tion, ite. : -Held, on
deimniei'. ]ilea good, as setting out an agreement
(ill defendant's part, for which a suHieient eon-
f ideralion ajipeai'iMl in his undertaking a liability
which he was not bouiul ti assume, and that
defendant was not obliged to j.liew that he had
actually performed his agreement, as this was
umiecessaiy to supjwirt the accord set up by the
liha. Mr'Hiiul, V. di-rdr, 18 C. R 4S8.
Agreement to purcliase land leased — Construc-
tion of. .Satisfaction of rent by payment of
purchase money. Furijiw liiijuohlit, 18 C. 1'. 110.
M. executed a mortgage in Y.'s favour for
€50, over lot No. 11, he then also holding a
lease renewable in perpetuity of lot A. at a
rental of €4 per annum. The rent being in arrear,
judgment was obtained, and execution issued by
the lessor against M. therefor ; V. then agreed
with M. to pay this execution, M. to assign to
him the lease of lot A. ; and further, it was
.agreed that if the lessors "'will give to the party
of the lirst part (V.) a deed in fee simple, or a
lease perpetually renewable at the present rent,
he, the party of the lirst part, will discharge
and release a mortgage, " &e. . being that above
mentioned. V. afterwards obtained a convey-
ance from the les.sors of lot A., but it did not
appear that such was made for the sum contem-
plated at the time of the agreement between Y.
and M. V. aftei'wards pressi;d for payment of
the mortgage debt, when M. made excuses for
delay, and did not rely on the agreement as a
bar to Y.'s claim. Y. having commenced an
action of ejectment on his mortgage, M 's bill
to stay it and to have the agreement and subse-
quent purchase by Y. construed into a satis-
faction of the mortgage debt, was dismissed
with costs. McKenziev. Yicldiwj, 11 Chy. 400.
A man l)y an informal instrument assigned to
a trustee all bis estate and efl'ects, on condi-
tion of the trustee paying to each of the chil-
dren of tlie assignor !iii400. Subsecjuently the
grantor conveyed to one of his sons a house and
premises valued at $200 : — Held, that the trus-
tee could not set this up as a part satisfaction of
the .§400, mentioned in the first deed, and that
declarations of the father made subsequently to
the assignment in trust, and the conveyance to,
and in the absence of, the son, were inadmissible
to shew that the conveyance was made and
intended to be in part satisfaction of the sum so
secured to the son. MnllioHduil v. Mirriam,
20 Chy. IM.
ACCOUNT.
AiTiiPN- m.' Account, 22.
Bll.l, KOK AN AccoiNT, 2,3.
Misc i.LANEoi's Cases, 2:{.
In Administhation Suits— .SVc Ad.min'-
i.sTRATioN Surr.
liEh'r.KiuNii MArri'.Hs of -.SVr Akbitra-
riON AMI .\WAKI>.
JuKisDicTioN oE Division Couut— .SVc
Division Couhi'.
( 'oMi'UTATioN OK Interest --.s'<( Intere.st.
.Account Si'ateu — .SVcMonev Cou.vt.i.
Takinii Accounts — Sit Mortoacie —
I'ARTNERsmr Practice in Equity.
Al'l'liOI'HIATIoN 111- I'AVMENTri — .SVc PAY-
MENT.
I. Action of Account.
Tlie exception in the Statute of Limitations
extends only to actions of nrroiint, not to actions
1.
II.
HI.
IV.
V.
VI.
Vll.
VIII.
23
ACQUIESCENCE.
24
II'
•J
Mr
it:!
1st
as
>io
of assumpsit on opr'n rirrmni/.-: J,'iis-^i // v. Hnln
.■!Oii, 1 Q. B. 2;\'t.
Will not lie !it Cdiiiiiuiii l:nv Ixtwccii ti'ii:ii
at cdianiou or joint tenants, nnU'ss tlicic
been iin aiipointnu'iit of one liy tlic otluT
bailitl'. Oriijiirij v. (.'iniiinllii, 7 (). 1'. oOO.
Hut under ') Anne, e. ](!, it will lie a,L,'aii
one tenant in eomnion, or joint tenant
bailitl', whenever he has entered and taken nii
than his just share of the jirolit.-, wiiethi'i'
iipijointnient of liis eo-teiiant or not. Hi.
Semble, eoiiareeiiers eaiinot ;uie ea h other
an action of aeeount. ///.
II. r.ii.L von .\s" AnoiNT.
Ordinarily, a bill for an aeeount will not lie
by an agent against a priiieipal. Jtinim v, Smirr,
luC'liy. '-"29.
A bill for an account was held to lie at the
suit of a municipal corporation against tluir
treasurer and his sureties. ( 'nrjidrathni of (hi'
Toiviiship of Ea.ll Ziyn-a v. Domjla-'', 17 C'hy. 4(J2.
The bill in this case alleged that under a
yearly engagement the plaintill' agreed to dis-
charge the tluties of deputy sheritl' for the
defendant, for which he was to be compensated
by a proportion of the fees payaljle on certain
services performed by the shcrilf ; that shortly
before the expiration of the second year the
defendant discharged the plaiiitill', and, as
alleged, refused to account to the plaintili' for
his portion of the fees— whereupon the plaintitt'
tiled his bill, claiming that he was entitled to
share in the fees for three yeavi^i, that the items
upon which he was entitled to a share of the
fees numbered over one thousand, and that he
had no means of shewing the amount due him
except by a discover}- from the defendant, and
praying an account aiul relief cousoi]uent there-
on. A demurrer thereto for want of e(piity was
overruled ; althougli hail the plaiiititJ' seen tit to
institute luoceedings at law to enforce payment
of his demand, this court would imt have with-
drawn it from that jurisilictioii liy granting an
injunction to stay proceediiiLS. lull-: v. I'un-dl,
L'O (-'iiy. AM.
The rendering an account by plaintiffs' attor-
. iiey inthis I'rovinee (the plaintill's residingabroail)
I is not biniling on the ])laintiirs as to tiie mode of
ealciiLition, and even when the plaintill's them-
selves in the lirst instance ineoi'rectly state an
account, tliey may have it legally adjusted at
any time before a linal settlement. MrOmior
<■/ a/. V. Uiiiiliii, I Q. 11. ;i7S.
Where the defendant is Making payments to
the plaintili' on account of a loan, the plaintiff'
may insist, in the absence of any agreement to
the contrary, that his paymi'iits l)e apiilied in
the lirst place, to keeping down the interest. ///.
The proper mode of calculating interest on an
account explained. ///.
A sale of books of account by sheriff, under
an execution, tloes not pass the property in the
debts or accounts therein charged : — Semble,
that books of account and open accounts can-
' not be seized by the sherill', under 20 \'ict., c. 57,
s. '2'2 ; at least they cannot be sold or transferred,
I but if seizable at all, must be held by the sheriff
i in security for the judgment debtor, and collected
as such in his own name. Mi-Xai«jhlou v. V.'iU-
stvf, L. J. 17. — C. L. ( 'hainb. Drajjcr.
It is the -luty of a trustee to use reasonable
! diligence to have the accouuts of the trust ready,
and to render them within a reasonable time
' after they are asked for on behalf of the cestuis
\ (pie trustent ; and where a trustee wholly
neglected this duty, though he offered his books
' for inspection by the parties interested, he was
chargetl with the costs of suit up to the hearing.
linndall \-. Btirroin-.'i, 11 C'hy. 3(14.
When the defendant, by his answer, sets up
a stated account, the plaintiff' does not admit
the defence by bringing >n the cause by way of
] motion for decree, and the proper decree in such
! a case is a reference as to such alleged account.
.V,-('/v. Xiil, Id C'hy. 110.
Accounts were delivered in 1862 and 1805, by
a trustee and agent to his principal, and the con-
j ridential relationship existed for upwards of two
1 years after the latter account had been rendered :
; —Held, under the circumstances, that these ac-
I counts were not binding on the principal as
stated accounts. Snii/li v. ItnlforJ, I'IChy. 'J74.
III. MiscELLANror.^ Ca:;es.
A plaintiff" is not bound by credits given by
him in account in the mere statement of the
defendant, but may reject such credits unless
the defendant can shew that they ought to be
allowed. (.'«/•(/.« v. Fiil/i r, 5 (). S. 57(i.
Where the plaintili' and defendant have had
open accounts for a h'lig iierioil, and have taken
no pains to come to an uiiderstaiiiling in regard |
to the terms of their dealing, or t>> preseive the
means of proving the neeessaiy facts, and the
jury lind more or less upon eniijicture what the !
court may think excessive damages I'orthe plain- !
tiff, the court w ill very ranly indeed, on tliat !
ground, assist the defendant liy granting a new i iii
trial. Conn r v. MrKiiiiioii, 4 (). li. .'{."lO. j
Qua're : When can an account be considered '
an open unsettled aeeount, so as to defeat the
Statute of Limitations liy the later items draw-
ing the others with them. /Idniilloii v. .)f(if-
thcw^, 5Q. R. 148.
11.
ACCOUNT STATi: D.
•S'. I- Money Coint-..
-— ♦ —
ACCRETION.
,Vct W.VTEK .VM) WaTEI! C'oLUSES.
ACKNOWij;iX!MHNT.
Ok MaISIUI'I) \\'nMEN .S'(( HisHAM) ANIi
WlKK.
()i- I)i;i',i'.-i iii{ Oi'.MAMis ru iiAit Statlte
Sir LlMlTAlloN HE .Vr'l'IO.NS AND SLlr:!.
Ok Trri.E lo hAND-.S'ir LiMrr^rioN i.v
Ari'KiN:! AND Sl.MT.S.
— •
ACQUIESCENCE.
Sec Estoppel.
24
attor-
l)i'oail)
loiln ■^^''
I Statute
Nil Slii"..
lulATIoN If
ACT ttF rAULIAMKNT.
S'i'r STATI'I'KH.
ACTION AND .SUIT.
1. FollM OK.
I. A,iiiniii)vt, Drill, and <'in\ nant, L! AdUN-vr Whom Main ivinaule,
•r,.
1. Jll(l(Ji:t,
(a) <>/ Cull nil/ Cfiiii-t — Sc CorxTY
"Couur.
(b) Of' Diriii'iii Court — Sic Division
"CoLltT.
(c) IiWorilE(IKIC I'ERKORMANcr.
8. Pliiidinij — Sfr PLEADTNfi at Law —
I'i.EAUINfl IN EgiTTV.
i(. .SV/vc((/ ilifrmlant^ in '/'rit/iax.i — ,SVc
TUESI-ASS.
10. Aiiondnirnt of Partirn -Si-r AmKNI)-
MENT .VI' Law. I'l.KMPlNll IN
Etiiiiv.
VI. Abatement ok Action, ;19.
1. /;( Srdnrlioii — Sri- SeDICTIoN.
'2. In ]i. .'>;. as.
11. I'.V AND AIIAISST WHOM M AINTAINAItI.E.
By jiolice magistrate, against town council for
p.al.ary : I- Vict., c. SI. H'lV/vw v. Tin Tmr/i
CiiinirH <>/ llriiiil/vril, .'J C. I'. 470.
By mortgagee of goods, ag.ainst iienions selling
or seizing them. MrLmil v. Min-ii;\>V I'.
li»7 ; lhnrr;/, 20 Q. B. (i4l».
Action by municipal corporati(ui against one
of its memliers, or against another municipal
I corporation — when it will lie. ('iir/iordliiiii of
■till' Tiiini of ('liiitliiiiii v. //oiii/iiii, 21 i). |{. r>.")0 ;
] .^/iiiiiri/iiilili/ of /III 'J'liirii.s/ii/i of h'li.-it A'/™<)((/(
j v. /lor.iiiiiini, id Q. B. ,')."i() ; /liimii Oislricl
< 'nimrll V. I.oinliiii Di.^/rir/ ( 'uiiiiril, 4 y negligence of an
innkeeper employed by the person hirini; it.
i Wiilbr V. Sliiiriii; ;u g. B. :tio.
i
\ Action will lie by county .attorney .against
county council, for breach of duty imposed by
statute to provide him w ith ollice accommoda-
tion. Aces' V. '/'Ill' Cur/ioriitioii III' tin- t'niiii/i/ if
: Carlloii, M.'i Q. Ji. 40it.
III. Foi! What M.u.NTAiNAr.LE.
1. Sii.ijiiii.'iioil of Art toil ill Cii.ii's of Fi'lunif.
The plaintiff's horse had been stolen, and sold
at public auction, but tin- tliirf inis iinkiioir,,.
The jilaintitl' afterwards seeing the horse took
possession of it, and the purchaser retook it from
him:— Held, that the plaintitl' might maintain
trespass against the purchaser, without shewing
a prosecution to conviction, /joirnmii v. Yii-lil-
iiiij, M. T. .'} Vict.
In an action for money had and received : —
Held, that an exemplification of an indictment
upon which tlefenilant had been convicted
of embezzlement, but aetpiitted on a charge of
larceny, was admissible to shew that defendant
had been ac(piitted of the felony, so that the
civil actiiju would lie. Mnrilonnld v. Kitvliam,
7 C. P. 484.
In an action against a carrier for the non-
delivery of a package of money, where the evi-
dence sullicicntly shewed a felony a nonsuit was
ordered. Hagarty, J., dissenting, as to thesulli-
ciency of the evidence. J/iriiiijitoiii- v. Mituxiij,
'23 Q. B. 15(i. f.Sec, however, W'llUw Abnilium-i,
L. K. 7 Q. B. o54, as to the propriety of umii-
suiting in such a ca.se.]
The rule which prevents a civil remedy being
taken whilst the prosecution for the felony which
is the foundation of the action is not concludeil
does not apply where the crown and not a pri-
vate i)er.son is the jilaintitf. liiii'iiiu v. Jii-iil'm-
■!lr!,i, ;-) v. I{. 17."). -(.Miami), (la'lt.
Under the Temperance Act of ISM, where the
deceasud hail been assaulted and killed by a
person who became intoxicated by drinking to
excess in defendant's inn, it was held that tilt
legal representative might maintain an autiuii
under C. S. C. , c. 78, before prosecution for felony.
McCiirdil v- I'^irifl, 17 C. 1'. 12().
As to the right of action for seduction whuii I
the evidence proves a rape : see Hiii/lr v, Hiiiik j
:iO. S. 2Q'>; Vinrmts: Spraijiie, S'Q. B. L'83;|
lirowii v. Dnlhi/, 7 Q. B. 100 ; WaM v. A'a^/cd*
19 C. P. 453 ■; Willinim v. Jfohimoti, 20 C. P.
25,5.
29
ACTION AND SUIT.
30
'2. Ill nniiilmifi' of Cimii/i/.
It is not necessary to plead a special plea of
(•ircuity ff action ; « ' i^never this appears l)y the
reooril'it is an answt I to the action. A'o.-^r v.
flohliii, 17 C. r. 050. See (Vrnvj// V. Rohi rfmii,
l.-,('hy. 173.
Action for not accepting a conveyance of land
or paying •?! 000 as agreed, claiming iJ3(X)€a.s liipii-
datcii damages under the contract. Defendant,
after two trials of the case, jileaded that the
rilaintift' had not at the time of the alleged
iircach, or at any time before this suit, a good
title to the land, and was not able to convey the
same as agreed, and the i.ssue on this was found
for defendant : Held, that .as ]ilaintitl' had not
pued till after the time for jiaymeiit by defendant,
anil had not title, he was as nnich in default at the
conmicnccment of the suit as defendant, and as
the clamages would be the same against both
parties, the defence WiW a good answer, in avoid-
aiKT of <'ircuity of .action. Kostir v. Ilulilni, 17
V. \\ t'-'iO.
;i. ()tlllain-
tiir. ^cv ilnniilton and Bruch lioad Co. y.O'. IT.
J{. Co., 17 Q. B. r)()7 ; J'lcwci v. J fall, 29 <^. H.
472; IMrdy. Wil.son, 22 C. P. 491.
As to when a right given by statute may be
j enffirccil by .action, and when a particular remedy
J given by the statute excludes the right to sue.
Li/Ill V. Incc, 3 C. P. 528 ; Tin- Cor/ionilion of
[the Ciimtlfi of Frontcnar v. The Corjiorntion of
1 (/-■ ( ■U;i of kimj'ilon, 30 (^ B. 584 ; S. C. 20 C.
\V. 49; .yidiiri/iiil ('niiiicil of W'llHiiijIoii \. Mnii'i-
'icipiiltfn of WHitiol, I7Q. B. 82; Mi'irroi/v. Dair-
«"/), 17 <'. P. 588; Prcx'iildit, Ac, if t'/i< Bronte
\Hil,-hnm-\. White, 2\\V. p. 104.
Where the ])irty before the time stipulated
[for performing his contr.act, declares that ho will
[Dot iierftirm it, the other party may treat this
(as a breach and sue. Dulka v. Tinjlor, 34 Q.
IB. 12. J ^ i
IV. Xoi'K K ojf Action.
1. Fortii mill lii ijiii.iitt ,-t if
(a) S'lnm tiinl lii'-iiili iiei if I'luiiitif innl .-Iftor-
tii I/.
It is sutticient if notice of .action under the
Division f'ourts' Act, 4 i^ 5 X'ict., c. .'I, s. (il, be
signed by the attorney of the jiarty comjilain-
ing. Ki iiilili V. Mrtliirr;!, O. S. ,">70.
It niu.st declare tlie ]ilace of residence of the
attorney. The subseriiition therefore of the
attorney at the bottom of thi; notice, "A. B.,
attorney for the said ('. D., Sinicoc, Talbot Dis-
trict," was held insullicient. ^^'/<.^■ v. IIV/.vA, !>
(I 15. 498.
Held, that in the notice set out in this ease,
the residence of jilaintill's attorney was snlfi-
ciently stated. (,'ilh.-i/ie v. H'c/f/A/'M Q. B. ,52.
The name and place of residence of tlic ]ilain-
tiir's attorney were not endorsed on the notice,
but added inside at the foot of it : Held, sutli-
cient ; and that, at .all events, such objection, not
h.avinjj been taken at the trial, could not be
ni.ade in banc. /iro,s.i y. Ilnlier, 15 (^>. B. (i-i.").
A notice of action given to a .). I', as fol-
lows : "To .John (i. Iiowes, of the city of
Toronto, Ksiiuire, I, Annie Armstrong of" the
city of Toronto, in the Province of Canada,
spinster, residing with my lather, .lames .Vrni-
strong, .at Xo. 148 Duches.s street, in the .saiil
city of Toronto," &c., signed by the jilaintifV,
and endor.sed "C. P. Armstrong v. P.owes, -
Notice of Annie Armstrong to .lolin(i. P.owes.
- The within named Amiic Arnisti g resides
at Xo. 14S Ditchess street, in the city ofToronto.
Cameron k McMicli.acl, for tlie ]il,aintill":
Hehl, in.sutlicieiLt, not having the jilaee of abode,
or business, of the attorney endor.-;ed, nor the
court in which the action was to be brought stated.
Ariimtronii y. Botn.'i, 12 C. P. 5.39.
A notice describing pl.aintiff's pl.ace of .alxide as
"of the towashi]) of (iar.afr.axa, in the county
of Wellington, laborer," without giving the
lot and concession ; -Held, sullicient. Xeil.l v.
MeMillini, 25 Q. B. 485 ; followed n\ M.-DoiuM
V. Siwkeii, 31 . B. 577.
(b) Stiiteiii'iit ofCiiiisc of Aiiiiiiu
In the notice for an aet done under the Petty
Trcs]).ass Act, it is necessary to specify the form
of action intended. ]\'iiilsir,,rlh v. Meirhiirii,
if action : —
O. S. 432.
Held, that the fidhiwing noti..
"And also for th.at you, (m,"&c., ".at," &e.,
did cause the horse upon which the said .1. U.
w.as then riding to be seized, taken, and leil aw.ay,
anil the said .1. U. to be obliged to dismount,
■and give up the said horse, and converted and
disposed of the said horse to your own use ; and
also, for that you caused the saddle and bridle
and halter then on the said lior.se to be seized,
taken and carried away, and to be convcrtetl
and disposed of to your own use, anil other
wrongs to the said .1. U. then and there did,"
&e., was sullicient to enable the plaintifl to
recover the value of the horse .as being his pro-
perty. Robinson, C. , I., diss. Cii/iery.McFar-
land d at., 5 Q. B. 101.
81
ACTION AND SUIT.
33
Tresjiass ii;^'i»iint iniigititratt's for falKo iiii-
])risoniiic'iit. TIii^ iidtii'c Kft nut in the iviso lu'lil
iiiiftit'it'iit iifi t" fiiiiii of action to ho hnni^lit.
CiiiiiidIIii \. Ailiiiim/ ii/., 11 l^>. H. ;(27.
" I'or that you (tlicclcf'tulant) on," i*ti'., "at,"
i^;t'., "r.i'i/LMl ami took auay . I!. .VJ.
(f) .'■•/(III III' lit III' '/'hill mill I'lii'i.
Xoliee of aetion must eonlain a i.tatenient of
the jilacu wlure the tresjiass or injury was eoni-
niitted. Ki iiil'li v. Midiimj, (i ( >. S. ,")70.
A notiee of aetion against a magistrate nnist
distinetly sjieeify the jilaei^ where thi^ aetion
eoniplained of was done. Mm/i/iii v. S/ii tn r, '2
Q. 15. 115.
The |)laec w liere the idaintilF was imprisoned
nnist lie eorreetly stated ; the faet that the in-
jury took jilaee in the same distriet, thnuidi not
at the exact jilaee named in the writ, will not
make the variance less fatal, ('rimkliili v. Sum-
iiurrilli, ;?Q. B. I--".).
The notice of action in this ease against magis-
trates for false imprisonment was held suftieient
as to statement of place where injury committed.
Cunniillij V. Ailinns it iil., 11 Q. B.3'27.
Semblc, a notice to a magistrate is had if it
omit the time and place of alleged trepass.
Frii'lx. Fcnjiifioii, K") ('. P. oS4.
The notice stated a trespa.sR on the ISth of
October, and on divers other days. The goods
were seized on that day, hut returned, and
seized on the 18th Novcmher and sold : — Held,
notioo sulKcient. Oliphaiit v. Lixlii, 24 Q.B. 398.
In an action against a .1. P. tlie notiee st.ated
that defendant assaulted plaintiff, imjirisoned
him for four days, and caused him to he illegally
arrested, and gave him into the custody of a
constable, and illegally committed and sent him
in such custody to the goal at the town of Lind-
say, and caused him there to he confined for a
long time; -Held, insutheient, as omitting to
state Avhere and when the assault took place,
and the evidence not l)eing contincd to the im-
prisonment at 1>imlsav. Pnr/ci/ii v. S/a/ilrx, 10
C. P. 240.
Notice of action held insutiicient instating no
time when the grievance eomjilained of was com-
mitted. S/iriiJKj v. And); 23 C. P. I.')2.
The first <'ount and the notice alleged that
defendant, on the 30th Aiiril, 1872, assaulted
and imprisoned the plaintiff. The plaintiff's
eviden''e, on which he obtained a verdict,
shewed that about the 2r)th April he was
brought liefore defemlant, a .1. P., on defend-
ant's warrant, rci|uiring his appearance and
ordered to find sureties for the ]ioace, and that
on the 30th he was again arrested an!<>i v. Hiilni; IS <,). 15. 2S'J.
Xinll V. Till Cur/iuraliim of y.'-w.s 22 C. P. 4S7.
Such a defect could not be ameiide.'{,
s. 107, of an action to recover the excess of
money levied under an e\eciitioii. /lull V. Cdiil,
(j c. i*. 544.
Bailill's of a Division Court arc entitled to
notice of action for sei/inj,' goods, although
acting under a warrant without seal. Am/irsiui
V. ^V(/(r, 17 1^>. I!. !ti;.
A hailiir is entitled to notice of an action
upon the statutory covenant, for execution,
Bcizure, and sacrilice of plaintitl's goods. Such
action must he hrought within six months;
and tlio defence may he raised under the gene-
ral issue liy statute. /''«/-s',» v. Hiillmi il iil.,
I.J C. I'. 7!t".
(^Uierc - 1. Are the sureties of a Division Court
hailill', in a joint action against principal and
sureties, entitled to notice of action to theni-
selves ? •-'. ( !;iii they plead the want of notice
to the hailiir in their own protection ? 3. Can
they, in an action against tliriiiii'lri'.t, take
ailvantage of the vant of notice to the fxnUjf',
or of any other defence that would have been
open to the latter '! Ihit : -Held, in this ca.se,
as the recovery must he against all or none,
that t)ie discharge of the luincipal involved that
of the sureties. ///.
A Division Court hailill' is entitled, under C.
S. U. C. c. 1!(, s. I'Xi, to notice of action for
seizure and sale of goods un. To Cundahliii.
A warrant to arrest the plaintifl" was directed
to one S. and all other peace ollicers of the
county. Defendant was sworn in as a special
coiist'ble to assist S., and he went alone, not
having the warrant with him, and made the
arrest, (tn action brought, the jury found that
defendant believed he was acting in the execu-
tion of liis duty:- Held, that under 14 & 15
Vict. e. 54, he was entitled to luilice. Sivje v.
Diqtii, 1 1 Q. B. .SO.
Where the de'eiidant, a constable, had had
no notice of action, it was left to the jury to say
whether a coiistalile who liad arrested a man
without a warrant aeteil uiuler a lair and rea-
sonable suiiposition that he was performing a
public duty : Held, a proper direction, and a
verdict for plaintill' was sustained. Cottnll v.
HiU'stoii, 7 C. P. •J77.
The Imperial Statute 21 Jac. I. c. 12, does not
entitle constables to notice, or limit the period
within which they may bo sued. Bdch v. A rnott,
9 C. P. ()8.
7. (filler Pcrno}}!*,
Notice of action to surveyor of streets, uiidei-
24 (Jeo. II. e, 44; — Held, not necessary. Mr-
FiivliiiK- V. Mi-Doiiijiill, ,*{ t». S. 7:1.
A party who, acting as a revenue otllecr, or
eoneeiving that he has authority so to act, seizes
g(jodH, is entitled to notice without the iieci ssity
of proving his enininissiiui or appointment.
Witihirniih \. Miir/,/iil, I t^ I'.. IIH).
Where the seizure was by a per.-.on not then
authorized, but whose act was subsequently
adopted and sanctioned by the collector, he wai
held entitled to notice under the eustoins .\ctj.
IVaihirurlli v. Min-jihii, 2 (}. H. 120,
A iiarty arresting another while engaged in
the act of stealing his propitrty, is entitled to
notice under 4 & .'"> N'ict. e. 25, s. (i7. .Ur/hninlil
V. (Jiniii'i-dii, 2 (,». B. 401i.
Where an action was commenced after 14 Ik
15 Vict. e. 54, for a trespass committed before,
against an ollieer protected by this Act but not
previously: Held, that the statute would iiol
ai)ply, and that the defendant was therefore
not entitled to notice. Drajicr, .1., diss. Wliih
V. Clark I'll i-MI I \. Clurl,; II (}. B. i:i7. See,
also, Whilr V. Cliirk, 10 (,>. 15. 4!»0.
1() Vict. c. ISO : Held, not retrospective, so.'i-i
to make the notice of action re(piired by it ap-
plicable to causes of action accrued befoie the
Act, or to compel the jiarty injured to sue in
civse and not in trespass. Cntirl: v. Mr I'm, II
Q. H. 509.
Case for maliciously suing out an attachnieiit
in a Division Court : Held, that defendant «as
not entitled to notice, for the statute was in-
tended to protect persons acting under it in the
discharge of some duty, not for their own benelit,
I'nII v. Ki'iuu-n, 1 1 Q, B. .'{50.
A sherifl' is not entitled to notice of an acticm
against him arising out of his execution of a ti,
fa. in a private suit. Mr \V h'lrti r v. ( 'urhrlt, 4 ('.
P. 203.
The defendant being path-master, and assum-
ing to act as such, moved the plaintiff's feiicus,
the effect of which was to take otF land from the
plaintiff's lot and add it to defendant's. No
notice having been given, it was left to the jiiri
to say whether defendant acted bon.l lide in tlit
execution of his duty, and they having fouiul
that lu! did, the court refnseil to disturb t\u
verdict, Jhlllinll v, Tai/lur, lU l^. n. 279.
Notice of action for acts done unc.er a by-law.
Carmiclwrlx. Skiirr, 9 C. P. 423.
Notice of action to registrar for negligent omit.
sioii in eertilieate : — Held, unnecessary. Han'.-
.son V. nreija, 20 Q. B. 324.
Held, ill deference to former decisions of this
court, that a school trustee sued for any act
done in his corporate capacity, is entitled tu
notice ; and this notwithstanding he may h.w
signed a warrant individually instead of in his
corporate capacity, if he was acting in the dis-
charge of his duty as tru:itee. Spry v. Miimlij,
1 1 C. P. 285.
A collector of school taxes, who eommitteJ a
trespass while acting under a warrant issued by
the trustees' authority, was held entitled to|
notice of action. lb.
3G
37
ACTION AND SUIT.
38
rt, uniUn-
tlicer, or
L't, Sf i/fS
iiuL'isaity
iul.ineut.
not thfii
lequeiitly
1-, he w;ii
)lll:l Auti.
igagctl ill
utitleil til
MrDoiKihl
.ftur 14 &
L'll befoiii,
ut but nut
woulil not
tliurefoif
ss. W'liil'
i:!7. S.»',
ctivu, sons
(I by it all-
befoiv till'
I to HllO ill
Mr I!"', II
iittachnitiit
'entlant w as
ute was ill-
ev it in the
)wn benulit.
)f an action
itiou of a li.
'urMt, -4 1 .
.vnd assuiii- ;>l
tl''a fciiCLt.
lid from till'
[ant's. N'l
to the jiin
iiJe ill tlu-
viiig foiiiul
disturb tliu'
};. -JTy.
lt a by-law.
lligent oiiiii
■y-
//((/•;■
lions of this |
|for any ait
entitled tu
may have
tid of in liis
; in the dis-
I'v. Minnlii,
DminitteJ a I
|it issued by I
entitled to
Hold, that a plaintiff in a Division f'ourt
guit who, on an execution against the coods of
A., indemnified the bailiflF for seizing and selling
the goods of B., was not entitled to notice, or to
the protection as to venue. DnHeri/ v. Whn/ei/,
12 C. V. lori,
Held, followinc Kinnedy r. Burgesn, !,"> Q.
B. 487, tliat arbitrators lietwcen school trus-
tees anil a teacher, under the Common School
Act, acting within their jurisdiction, are entitled
ti) protection under f. ,S. V. C. c. 12(), as per-
sons fullUling a public duty, fliirj/ir.i v. I'ab
f/rT/.,25Q. B. n.").
A pound-keeper, acting ns siicli, i.s entitled to
notice of action under t . S. IT, C, c. 12f), and
it must be averred in the declaration that in
discharging his duty he acted maliciously and
without reasonable ami probable cause. Darin
V. Willmim, )3('. P. .%.").
Pefendant was sued as mayor of a town for
refusing to sign an order to cnalilc plaintifi' to
(ibtain a saloon license. The notice of action
wa"! signed by plaintiff', with the name of plain-
tiff's attiirney endorsed thereon :--Held, 1. That
(IS it must lie presumed defendant, in refusing to
sign the order, intended to act in the discharge
(it his otiicial duty, he was entitled to notice.
•J. That the notice was insultieient, not being
rmlorsed with the name and place of abode of the
)ilaiptill' and of liis attorney or agent who served
it. ',i. That the ipicstion fif the bona fides of
defendant in refusing to sign the order, not
Inving lieen raised at the trial, could not be
raised in term. Moran v. Pulmrr, l.S C. P. rj28.
Seinblc, that notice to a Division Court clerk
i< siitticiciit if it complies with C S. U. (A c.
lit, ss. l!l.'!, I!t4, tliougu it may not contain all
that is rcijiiircd by c. 12t>, for the latter act
dors not overrule the former, but they establish
rules f'lr distinct cases. MrPhaUir v, Lcxiic, 23
(.>. r>. "iX
Til muiiitipal councillors, in action for defraud-
ing tlic coriioratioii : -Held, not necessary. Cor-
• jiiirdl'diii (if III! Tuu'n iif ('htitluuii \. Ifuustoii, '2~
li. B. .-..■iO.'
An iilHiial a-ssignee in iiis(dvcncy sued fortres-
1 pass ill taking and .selling goods, is not entitled
I tu notice, An-hViudl \. Ilalihtn, TO Q. 30.
Ill an action against a justice of the peace a
|l)laiiititl' need not prove every tresinvss described
m iiis iKitice ; lie may prove what he can, and
rcciivcr fur what he proves, provided it be an
[ill jiirv stated in the notice. Bynn'ii v. Wild, 7
11." 104.
Ndtire of acliiiii is not necessary in rcple"',n.
'uhln- v. Mhiloii, 10 (l B. 423; KviuinUi v.
"", 7 (', 1', 218 ; A/ipliiinrth v. (Imliam, 7 C
171 ; y,'»;.s v. Tiulr, 32 Q. 1$. 108.
'\\v objection that no notice of action was
I ■. 324; llarrold v. Voriiomtiun of Simcoc,
6 ('. r. 43.
y. Parti Rs.
1. Plnilitifi.
Where an agreement under seal, for the com-
pletion of certain work, had been entered into
ny one of two plaintiff's, and the other, who wan
not mentioned in it, .'igncd and sealed it also,
and afterwards assisted in the work, and wai
recfignized and paid by delendant, for whose
benefit the work was done, as a joint contractor
with the plaintiff' mentioned in the instrument ;
-Held, that aHsiinipsit was maintainable by
both for the value of the work, an implied parol
agreement having been siilistitiited lor the in.
strunient under seal. /i'i/<.>./^ «/. v. Tnif, H. T.
7 Will. IN'.
Two of three plaintiff's contiai'ted under .seal to
do certain work, which was done by three, but
not according to the agreement. The three
having sued were nonsuited on production of
the contract. Tlu^ nonsuit was upheld, and an
amendment by striking out the name of the
third plaintitl', in order to save the Statute of
Limitations, was refused, A'/v'/v /• it al. v. Anrcll,
23 (J. I!, 481.
Where a tenant leased premises at one entire
rent, and his landloi-d dieil, having devised the
premises among several persons : — Held, that
those persons might bring sepiarate actions
against the tenant for such part of the rent as
each would be entitled to according to his respec-
tive share, without any other apportionment than
tliat V. hich a jury might inalvc in each suit.
Hon V. I'roiid/tiof, O. S. 017.
A. leases goods to \i., which the sheriff' seizes
under .an execution against H., but docs not
sell or remove them .-Meld, that if any trespass
was committed by the seizure, H. should sue,
and not .\. //< md r.inii v. Mnado , 3 (). B. 348,
Defendant signed a written retainer of D. &
K. as his attorneys, to pioseeuto one M. While
the suit was iiending their partnership w.a.'«
dissolved, and Iv retired, assigning to D. all his
rights. I>. alone apjiearcd as plaintiff's attor-
ney on the record:- Hehl, that D. might sue
alone for the costs. Duiii/idl v. Orb i-imiii, 9 Q.
B. ;{.')4.
An agi'ecniciit was made lietwecn defendant
and the idaintiff', described as " President of the
Port linrwell Harbour Coiniiany, on behalf of
tlic said President, Directors, and Company of
Port Burwell Harbour," and under the seals of
defendant and jilaiiititl' : -Held, that the pl.ain-
tiff' could sue in his own name. Soxtou v.
Itidhu, 13 (l B. 522.
Agreement with two plaintill's ; separate ac-
tions by each :— Held, not maintainable. I'rir
V. Iiii[l'(d(t (Hid JA(b- II II ran It. IT. Co,, 17 i}.
B. 282.
A. agrees to become surety to IJ. for all such
advances as 15. may make to C. during a limited
period. B. makes no individual advances to C.
at all, but during the period, I>. , with D., a
stninger to A., make advances to C. : — Held,
that W individually cannot recover from A. the
amount of the advances so made. S>ririi.-., (iii.l .'i:t Vi for hin, tho
iilaiiilill'H, iiiii't'imith nlmrr HciMirntfly, without
jniniiiK till' otlicrH iiittTOHtoil in tlio policy.
Ciim/ilirll V. Till Silliitmil /!>'■■ iHHIIIOIIf' Co. nf
iiic (',iit'i/sf,if,M, -Ml). M. .n.y
I'artii'H w III' fur iiuiiiy ycarx hiul the chief line
of a raiuil, iiml li.'nl alwayM rcHiBtcil |iftyinriit of
tollH ilnnaiiilril liy the Ichhci', were hclil to linvc
RiK'h nil intrirKt aH cntitlcil thcni to iiiniiitain a
liiii (Id whiih tlic Attonif- (iciuTal waH a
rlcft'iiilant) to have tin- lt'i...f dn'lnrtil voiil.
llim-khij w (lll,l,r.-r>, llM'liy. -.M'.'.
AltDINC I'AKTIKS.
I. In l'()KF.ri.nm'Rr St'iTM Sn MoRTdAfir..
II. In oriiK.H f'Asrs ,SV( AMFNtiMK.ST at Law
I'lKAtHNi; IN I'X'IITV.
AMDITION.
In Akkiiiavits Sn An
|i \\ ITS.
'2, I )ij'i nihility
«j,'i(i iiiriit wan fiitirt'il
All «^;i(i iiii'iit wan fiitirt'il into uniU'r seal
hitwicii .\., n., ami ('., for the aihance of
(crtaiii iiiiiinyH l>y A. to H. anil C, who were
imrtncrs in a mill luiMini'MH, ami who, from the
a.sHfts jirisinx fi'oiii the tnisiiicsst, were to repay
siirli ail. amis. I*. afti'i^ariU hecanit' a iiart-
ncr with |5. ami ( '. : lli'lil, that A. eoulii not
maintain an .irtinii of afsiinipKit a^'ainst B. , ('. ,
ami 1)., jointly for the rerovrry of tho balance
of Hiii'li aih limes. Mitllilunjii- il nf. v. Mirritt
it III., 1 1^. H. ;i;«t.
On a joint contract liy three, all must lie sued,
if wiiliin tilt! jiirisiliction. If one is without, the
other two must lie sued. Hue alone cannot be
sued if there are two remaining within the juris-
diction, becaiisi' all three cannot be sued. Cnrhett
V. r,ili-i,i, 4(,l. H. |-j;t.
Scnible, per hrapcr, ( '. .1., that when the tori
alleged is the non-pcrfonnanee of a joint ''.uty,
e. g., to repair a bridge, if the joint duty b»' not
proved, the plaintiff must fail in toto, and can-
not reco\-or against tho defeiidnnton whom alone
the duty is imiiosed. Wiimls v. The Mmiic'i-
[mlilji i;/' Will tin I rill, (j ('. I'. 101.
Misjoinder of defendants in a joint action of
assumpsit cannot be cured either by a nolle pro-
seqiii or by a nonsuit as to some of the defend-
ants. A nonsuit as to some is a nonsuit as to
all, and a verdict returned for some of the
defendants is null and void. Cnmmcrcinl Bank
V. //(/r//n.< ./ III., 4(). R 1()7.
The crown may have sci. fa. against .
The chief engineer held an ollieer of defeuil-
ants' company under sec. 24. (hdlii/v. Torniih)
Greifand liriice R. W. Co., 10 L. .T. N. S. 4(). -^
Dal'ton, C. C. .(• P.
An aftidavit ffir an order to examine defen Innt
under sec. 29, made by the paitner of iilaiiitift's
attornej Held, sufficient. IJoiiilv. ihnili r^nn,
10 L. J. N S 46. -Kaltoii, C 'c. .(■ P.
8o also Wiwn made by the managing clerk.
Mami/i'r -;. The Creat Wi'-ilirn P. 11'. r,;., Ill
L. .7. N. i. 46— Dalton, C. C. ,c /'.
The words, "action at law," in sec. 21, incliiilc
an interpleader proceeding. Canaila Pi rmmimi
/iuililiini ami Sarimis Sorieli/ v. Forent, 10 L. .1.
N. S. 78. -Dalton, 'C. C. d'P.
VlaintifT sued on a promissory note. Hcfon-
dant was examined under tho Administration "i
Justice Act, and .admitted that his plea of p.\v-
mcnt was false. The plea was struck out, umlcr i
.'{4 Vict. c. 12, 8. 8. (.)., and leave given to sign
linal judgment. MrMaxUr v. ISiatt'u', 10 L. ■!
N. .S. 103.— C. L. Charab. — Dalton, C. C. .0 /'.
In this case the affidavit for an order to a-
•amine under the Administration of .Justice Att |
was mads by the managing clerk of the attorney,
il
ADMINIKTHATION SUIT.
42
nml statc'il, " I '"n f'lmiliar witliiill tlir |iiimimmI
in^!R in tliia miit ;" MrM, that altliniij.'li a
miinaK'"K '''''•''<''* "Hiilavit im niidirii'iit iitiilcr the
utaMitf, "till it' liiiiHt. Mtafi' that hr haM Hotiir
iwirtiiiilar rhar^t' "f thr Hiiit. F,hti-l' n v. ''"•<
;,,->-•., 10 I.. .1. N. S. lOA.-C. I.. Cliaiiili.
Daltnii, ''. ''■ ;aiiiNt a inaKiNtrati' the
until"' rniiiiri'd t.y < '. S. T, ( '. c I'.'ti, Ktatnl
that till' |ilaintiir iiiti'inlccl lirinxiiin IiIm artioii in
,1111' nl' till' su|M'i'i()r ('(lurts, uliili' the writ \\.\^
issiiril III till' nthiT. Oil all amtlii'atiim to aiiii'iul
iinilir till' . \i I iniiiisi ration of .liiMtii'i' Act: llt'iil,
tliat iimhr thi' Ntatnti' tlii'^. Kalton, ' '. f '. a- /'.
Ill this casi' till' fact nf the relator licin^' a
c'Uiiliilatc, or a voter who hail voted or temlered
his Mite, a« it'i|ilired liy see. 1,'tl of .'tli \'ict. c.
(H, «aH oiiiittcd in the relation, Imt \\:\h con-
tuMiil III one of the atlidavitH filed : Held, that
fill' fill! Iieinx idready Kefoie the court, the rela-
lieii I'Hiild lie anieiidi'il iiiidertlu' AdininiMtratioii
(it .Instill' Ai't- A'"/'"" '■'■ '■''. i>'l''>ll>i V. <'/i'nl
/„„, II) !,. .1. N.' S. IO."i. ('. I,. Clianil),
|»;iitiill, ''. ''. .(■ /'.
Till' Ailniiiii.''tration of .Instice Act l.'lli \'iet.
!■. H, (>.,)maylM! contiidered an a Lei^'islative
reciij^iiitiiin of tlu' |irinei|ile which has always
lircvailid ill tlii-i court, that the titnesM of forum
i.H the tCMt iijioii the i|uestiiiii, whethor a suit
liniiiylit ill this court kIioiiIiI lie retained and
ailindiiatid upon here, or transferred to a court
of law. rositioii from creditorN or ceMtiii ijiie truHtent as
to the rij;ht to have the estate adiniiiistereil in
this court, and c'linot, without experiencing
some dilliciilty ill carrying out the trusts or ad-
miiiisteriii^' the estate, lile a liill for that purpose.
foil V. <• v. H'l'i/' , 18 Chy.
48.-..
Allhongh the court cm protect the estate of a
testator by charging the executor with the eost«
of a suit for ailininistratioii iiniit ssarily brought
I iiy him, it will refuse an application foradminia-
I tration made by the executor if no siillieient
ground exist.s for it. linrri/w Hurrii, I!) Chy. 458.
!
i .An application for an administration order waa
! made within a year from the death of the testa-
j tor, by a legatee who claimed to be also a creditor
of the estate, but whose claim, a.s such, had
alw.'iys been disjiiited by the executor.^ and was
only supported by the uncorroborated atlidavit
of the claimant. T'.ie ( 'oiirf, under the cin.'uni-
stances, refused the application with coKts.
Viniiii v. \\; ^il 1,1-1 ,uk; , r.M 'hy. 4t'>l.
All administration oriier applied for against a
person named as executor in the will, but who
had not taken out letters probate, was refused,
there being no duly apjiointed pers'.inal represen-
tative before the court. (See Rowsell r. Morris,
L. \i. 17 Kcj.) : Omraiii v. Wijrkhoft; 10 L. .1. N.
S. 135.- Holmested, Nif ree.
The fact of there being a deficiency of assets
ill an intestate's estate, by which all creditors
become entitled to share pari passu, i.s sufticient
to justify an application by an administrator for
an administration order, notwithstanding that
the estate consists solely of personalty. Swrt-
I iitiiii V. Sin /nam, 10 L. .1. N. S. i;i5.— Chy.
( 'hanib. Strong.
Where, on a motion for an administration
order, it ajipeared that the application was by a
party claiining for the support and maintenance
of the wife and children of the deceased, and the
questions raised were (jubstantially the same as
would be raised had a suit been bronght by the
wife for alimony, the court refused the order,
and directed a bill for the purpose to be filed,
an" r-cnrnini-'icr special directions to enquire
as to what should 1ic allowed to the applicant
(the widow and a.- Spragge. -
The control of the court ci'ascs with the death
of the lunatic, ,i;iil an order for the distribution ,
of a lunatic's est.ite will not be made under pro-
ceedings in lunacy. I'lider such rircuinstances ;
the coinniittcc of a hniatic tonk, under autiiority ;
of the court, ]iinccc(liiigs fur the adniinistration '
of the estate of a deceased buiatic, by applying
for an adniiiii.-tration (irdcr, \\hich was granted ; ■
the proceedings licing directed to be :>s inexpen-
sive as iiossible. A'c Bnll'iinii r, ;> Cliv.' Clianib. '
1290. --Taylor, y,V/''-/''< .
.S. /// llli Cll.lr ij' .Slllllll K.-'ltltls.
The facts, that an estate is small, that no im-
putation is made against the executors, and that
it is nuailvisable to incur legal expenses, are no
answer to a motion by a legatee against the ex-
ecutors, ftir the usual adniinistration order. In
rr Fiilfiiiii r, 1 Chy. Cliainb. '2~^x ^'auKoughnet.
In tlie ease of small estates an administration
suit can only be justilicd where every possible
means of avoidiug the suit liad been exliausted
befoi'c suit lirniight. .\lfAti»;/'/ v. PrUMmnn, I
Chy. 1.3.T
The personal representative may tile a bill na
(I cirilitor .slmp.'i/ upon the testator's estate
against a devisee of lands under the will, after
tlie personal estate i.i exhausted, and obtain a
decree as an ordinary creditor. TH)'')',i, bctoru
bofon; lie
V. hiKjIUh,
pcnse \\itli
next of kill
he applu'^-
parte. /'■•
ninistnitimi
iorved with
re not to In'
cceilings in
loni lu.vy liy
they ilesiiL
the next nl
ailniiuistiii
tlie testatov,
real estiit'
Itt) represent
Itate, for tli.'
Icr a.slu'il fi>r
\\ oiliee edi'V
;ach of the
mrties intei'csted in the real estate uiulei
M-ill. Slii'-in-/ V. Iliiiilii; 14 t'liy. ]'.\-2.
l.iL'i'teis are not necessary paitius difendant
ill an administration .suit. Ilin-n
be contrary notwithstanding" : — Held, iu . i
liiiiihstration suit liy a leg.atee against the
ixecuturd, oil the application of other legatees,
Bade parties in the master's ollice, that an cn-
aii y might pro[ierly be directed, whether any
the legatees had forfeited his or her share
der the above provision. The uriginal decree
t containing such a clause of emjuiry, was
Blinded ill that respect on '.-!otioii, after the inas-
m-'.-- report. J/i'/A /■ v. Mi-Xiuiiihlnn, 9 Chy. 546.
.Where in a suit ag.ainst executors adi "ree was
adc referring it to the master to adniii, liter the
e, the master was Hot reipiired to take any
Count of such portions of the estate as were
*': to trustees to be adi.iiniatered. Cluiiattr v.
tUait, 10 Chy. oTli.
Iiough proceedings in thfc master's otHce
fcy under the geuend order be taken e:; i;;;i U;
against a clefend.ant who h.as .allowed a bill to be
taken jiro coiifesso against him, that mode of
prin^eediiig is irregular when an administration
order has been obtained upon notice tiled with-
out bill. .hirh.-iiiii v. MiiU/irirn, In ri I'llltl-iiDI,
I-.' Chy. 47.
In a .'iuit for the administration of a debtor's
estate uiiih-r an assignment for the benetit of
creditors, creditois wlio conu! in under a decree
may rehear the cause, ami this is the proper
course where tli
effected in that
Mii'/iiJ/iiiii/ V. Iliniiilliiii
■ alteration is such as might be
\\ay by a iiatt^ ..o the caune.
I'JChy. 4i;{.
In IS.V) a motion was made, upon notice, for
an administration order, under the orders of
l.S.'i;}, and no steji since taken. An application
now made in IS.'ii), in ehanil)ers for a direction
that the registrar should draw up the order, was
refused. After such a lapse of time all parties
must be served with notice. //) /•«' Fi>rrivlfi;
Mcmii'ki' v. Fnncntri; I Chy. Chamb. 20. —
Spragge.
A bill was liled praying a declar.ation of the
true construction of a will, and for an adminis-
tration of the estate. The bill was taken yivti
confesso against some of the defendants. At the
hearing, the plaintill' wished to abandon the
prayer for an administration, but one defendant,
who was a legatee, objected, contending he was
entitled to a decree [:ir administration as prayed :
Held, that he was .so entitled. 'i'lim/nii/i v.
/.niiiiii, IT) Chy. 14.").
It is not proper, in a report iu an administra-
tion suit, to append to the report a copy of the
will. MrCiinjtir \\ MrKiinmn, l.'i Chy. .{01.
On application for an adininistratioii order an
amundnient was allowed, where an unimportant
niistako had been made in the name of the intes-
tate, which had misled no one, and the right
person li.ad been served ; and ; ii enlargement to
answer the iiroceedings when amended was
refused. Ji'r Frii'n r {■'r(i'<( r \. Fni.'K /; '2 Chy.
Chamb. 407.— Taylor, Kicrdttrii.
Held, that a suit against an administrator by
a person entitled to a legacy or distributive
share of the estate, cannot he brought before the
expiry of ,'v year after the death of the intestate.
-SAiii'v. I'l'. I'. ;! Chy. Chaiob. 1. -.Spragge.
I'lide ail adininistratioii decree a creditor
ciainied by virtue of a partnership with the to^-
*.or. It was objected that the establishnv it
cr h'l claims involved taking the partnei'ship
iiceo' nts, and they could not he gone in '•• . •
ill'; decree. The master held that the ^'...lui
. ')ul I be entertained, and directed that o thiril
lartuer, who was a otraiiger to the suit, should
')e served with an ollice ciijiy decree, and not.itied
of the procee liny:! to take the partnership
aeeounts. A'/uic v. Klun-, .'! Chv. Chamb. 137.
—Boyd, M. , .
Where an order fvr a.'.ii'iiiiutrn'iou ban been
grantc.l to a devisee v ho ',a: alio a ^.K.i.ior of
the estate to a .;;v>^o , 1111.111111, hi.t did. not atate
that fact will 11 applyiiiii; joi adii.ini jtr..*'on. his
silence as to it w.is i- ,iind< el ;> jj.iiuiid for aus-
taiuiug an order t..,.isferiiiig 'lie C' induct of the
proceedings under tht lofe •. nee to '.iiother party
in<-'j''cstod under tir. 'ii Pen • 1 v. Pvrriii, 3
Chy. Chamb. 4r).'.— Spja^^,"
47
ADMINISTRATION SUIT,
48
■I
No one has a special right to the conduct of
proceedings in the master's office upon a refer-
ence under an administration order, but ceteris
paribus it will be committed to those who have
the greatest interest in conducting thcin pro-
perly and economically. II).
In a suit by a creditor for the administration
of his deceased debtor's estate, any party bene-
licially interested in the estate may apply to stay
proceedings on payment of the creditor's claim
and costs. The right to do so is not confined
to the personal representative. Fittcii v. Dair-
son, 3 Chy. Chamb. 4(jl. — Spragge.
Under the ordinary administration decree in
respect of a testator's real and personal estate
the master may take an account of timber cut
with which the defendants are chargeable.
atewart v. Fletcher, 18 Chy. 21.
A decree, as ilrawn up in an administration
suit, directed the administrator to be charged
with an occupation rent, "and that he should be
allowed the various claims and allowances set up
•and asked for by his answer," the result of
which was the allowance to liim of several sums
which, as against creditors, seemed to be impro-
per, and the assets proved insufficient for pay-
ment of creditors in full. The court at the
hearing on further directions gave liberty to the
creditors who complained of such allowance, to
rehear the cause, in order that the decree might
be varied so as to give them an opportunity of
disputing the chiim, so set up l)y the adminis-
trator, in the uia-stor'n odice. WiUU v. Willis,
I'O Chy. a9(;.
III. Kvii)EN. —Spragge.
On an application by a creditor for an admin-
istration order, under order 15, only a certified
copy of the will, shewing the defendant to be
executor, was produced : — Held, that although
strict proof of the claim as required in the
master's otKco is not necessary, prima facie evi-
dence of the applicant having a right to admin-
istration of the estate must be furnished ; and
tlie motion was refused with costs. //( re t'larki,
2 Chy. Chamb. 57.— Taylor, Secreturi/.
In moving for an administration f)rder the
letters of administration should be produceti. He
Israel, 2 Chy. Chamb. 392. — Taylor, Serreliiri/.
But where tlie fact of the defendant being
administrator is not disputed, and the plaintid'
has tiled an affidavit that he is administrator, it
is not necessary to give further evidence of the
fact, or to produce the letters of administration,
or a copy thereof. Rr Bdl—IMI v. HfU, 3 Chy.
Chamb. 307. — Mowat.
Where a bill is tiled against the estate of an
intestate, alleging that letters of administration
have been granted to the defendant, such allcMa-
tion is suthciently established by shewing that
at the hearing of tho case the defendant has
obtained letters of administration, although the
grant thereof may have been made subsequently
to tlie tiling of the bill and the putting in of the
answer, and although the defendant has taken
the objection by way of defence in answer. Tin
Eiliiihiiri/li Lit'f Aiiiironce Co. v. Allen, 19 Chy.
593.
2. (Jlher Ca.i.i.^.
If in an administration suit fraud is charged
in the pleadings, it may be proper for defendants
to examine the plaintiff thereupon in order U
disprove the charge, even though they succeed
in the objection, that a proceeding by bill was
not necessary. McMillan v. McMillan, 8 L. .J.
N. S. 285. --Boyd, Referee.
After notice of motion served for an order to
administer the estate, a commission may be ob-
tained for the examination of witnesses, with a
view of establishing the fact that the party
applying for the order is one of the next of kin
of the intestate. Farrell v. Cruikxhanl-, 1 Chy.
Chamb. 12. -Spragge.
IV. CosT.^.
1. To Exictitor.s and Triisleea.
An executor oi' trustee will sometimes b« |
entitled to his costs in a suit for administration,
notwithstanding lie may have committed a
breach of trust, if no loss is sustained by the
estate by reason of such breach. Wianl v
Oahlr, S Chy. 4.58.
Where the plaintitf charged iniproi. er conduct
against the administratrix, which wa' not sus I
tained in evidence, he was ordered to pay allj
costs otlier than of an ordinary administration j
suit. Ilmliiins v. MrXvil, 9 Cby. 305.
Th(; report in an administration suit, fouiiii!
£1403 chargeable against an e 'cecutor. Of tliiij
sum £1247 was for the price of land, claimed |
and received by the executor, t le testator's son, |
as heir, and his claim to t'.'s had long beeij
acquiesced in by the other parties interested, t
held otherwise in this suit, A'he.^ *his purcha&l
money was declareil to pass under i'i» tfist.itoril
will to the claimant and others as legatees,
sum of t'133, the value of the testati/s chattti
property, left by this executor in the hands oj
the testator's widow, and finally lost, Ic Urf
estate, made up the remainder of the sum cliargecl
to this executor, except a balance of about i'M
Under the circumstances the executor was ail
lowed his costs, as of an administration suit, uui
of the estate ; and was not charged with interefl
on the balance in his hands, which he was rel
quired to i>ay into court within a month, aftdl
deducting therefrom his share of the e.state tl
legatee, lilmii v. Terri/berri/, 12 Chy. 221.
A cretlitor recovered judgment against Li
debtor, who having afterwards dieil intestate, ti
creditor had himself appointed administrator
his estate, and thereupon, without suing i
execution against lands, tiled a bill agaiiist tl
real rejiresentatives of the intestate for rtlf'
under 13 Kliz. : — Held, that the peculiarit
his position iis both creditor and person ul rcpi
sentativo did not entitle him to reli' »' in tl
4'J
oiiiirt, ^
judc,'nic:
\v;iii';iMt
made, 1
incMiivi
tion urdi
their ^•ll^
V. (irii/i(
When
will had
estate, w
alliiued 1
of ;in a(
])aity del'
Ji.-id iiccd
Chy. Chu
^\')lorc
fc '.10 IV
lUh MIIOII
reason \vx
ciiiirt, and
olijcct in
I exucwtor t
I Cd.sts. Sj,,
An excel
Diinistratic
entitled to
;"'•■ 'dstrat
-laini
.'1 < ' ':avi
if fa L-d to
a sn. 1 lia
BJipc; red, j
boiili.> of iu
sJionld |,-;y
SiiUiiuiii, 1()
Wlicic ;i 1
tnislr<' t'n|-;i(
on tln' uroi
wi'rassud, ,1,
jini^ iv
lldtTV.lilli.',
mninnifati
<-' "ill, anci
i'lf ji.iynjcn
line indj\i
I'fiiiiistanci
'«tni (|ni'
til NO ni(i(
ai'iiij; .'IS w;
nvceivcr.
Wli.iv (li,.
I'liiii.-^tr.itii,
'■'• I'l.iini
ni.ilic ,,,
liiili 111. Ii
plillsl liis ,
POIV l||n;i -x
•y "11 dii, I
ei'f fliai-i;, ,|
i( lirnii,.|,|
|7<'ln. •.;7I.
Willi,. III,. ,
ival rst:it,_
I I here \v;i;.
»}■ sequently
J in of tliu
'has taken
wer. Till
I, 19 Chy.
is charged
defenclauta
in order tn
luy succeed
by hill was
Ran, 8 L. J.
an order to
may be ob-
jssea, with a
t the party
> next of kin
hank, 1 Chy.
aiees.
lometimes be |
LUnmistration,
committed a
tained by the j
h. Wkinl V,
iYO\ er conduct
i \va" not sus 1
?ef\ to pay all|
.dministratiou I
305.
ion suit, fouiiJi
lutor. Of tin-'
land, claimM|
testator's 8011, ;
.ad long beet I
interested, tittj
his purchasfi
■^iip t.pstatoni
as ligateea. -iL
i3tatti-'8 chattfll
n the hands f -'
lly losi l-' i"!
;he sum chargetl
of about iS^j
Lecutor was ai|
tration suit, *'l
— ed with iuterti|
lich he waarri
a month, aiti|
• the estatt»i
2 Chy. -^21
jnt against
ed intestate, tl'
administrator
;hout suing
bill against tl
estate for re
le peculiarit,
persoru'i rep'
VJ
ADMINISTRATION SUIT.
50
I'ourt, without lirst suing out execution on his
iuil"n)cut. Hut tlio plca(liiig3 being sutticientto
warrant it. the dceree for adniinistnition was
niailc, with such ^'osts as would have been
inL'ni'rt-'il on taking out the ordinary administra-
tion (inkr, the phuntill' paying to the defendants
their costs of answer ;ind of the hearing. J^njl}/
Y. (li-iiliiuii, IT) Chy. .">17.
Where an executor and trustee named in a
will had (ii-ti'd as such to the advantage of the
estate, w ithont having ]ii'oved the will, he was
alliiwed his costs, as lictwecn jwrty and party,
of an aihninistratiiin suit to which he wa.s a
party defendant, excepting some costs which he
hailneedlessly incurred. Siiii/ri/ v. MrCfin-, '2
C'liv. (hand). •231.-- VanKoughnet.
Where an executor olitaincd the usual order
fi,' ' ,ij. administration of his testator's estate,
aui upon the hearing on further directions no
reason was shewn for invoking the aid of the
I ciuit iij) to the
oy tile suit being for
1)11, 17 * '.ly. I.">4.
Where the on!\ im|» ' ditlicnlties in the
uliidnistiatioii of aiie.'av, \' eii created by a
lai'iie claim id' the exccotors wiii' h they failed
iii.ike good, and a cl.'.im of their father's
liieli he had made liy their persuasion and
aiiist his own wish, 'uwl the executors hail
y in their ha'ads t lan was reipiired to
ag.'iinst the estate, they
costs of an administratioii
moil
dl ither cliiins
eliai'iied « ith tln;
puri
i»y
►en
nil lii'oiiijjt
|7i'liy. r,\.
U liere the e
ill leal estate
I tliele was
l'.\
a ci
Itm-. Mi-il'ill V. I'oiiiiict
lo rel
list m^^
rrel^gM^/
irit^ ^H^
.; repi^Hl
veciilor had power iindera will to
for \iayui''!!l,,,l' iluldsand legaiic.s,
111 .J chap ncuigh in money to
ly tlie debts, ti '> e.>v.,i, eo i M,), viiig a suit for
buiiist ration iinni .c.isi.ry, rw'iiicd the executor
.inil his c immis:ii(Ui. (I'lalnini v.
i/'-"«, 17 >'i«v. :\\>*
II an administration suit, the executors were
,i:ed with so much of the exiieuses of tbe
4
•J. Ot/iir C(/.*',s-.
Ill ail administration suit it appeared that the
stepfather of one of the children of the deceased,
and who had the care of such, h.ail been sued for
the child's board while at sclioid, his mother
being a creditor of the estate, and neither she
nor her husband having any funds to pay for
such board while there were funds .applicable
thereto : - Hebl, that the steiifather shoulil l)e
allowed the costs of such suit. Mnr.iisv. J'ii/ln/,
•2 Chy. .544.
In jin administration suit the widow of the
testatm' had made a claim for dower, which had
been allowed, and upon an appeal fnmi that
decision the Court of Appeal reversed the judg-
ment of the c(mrt liebiw, in so far as it hail
aUowed the chiim for dower, but gave no direc-
tions as to the piiynieiit of the costs of apjie.al.
The apiiellaiits having paid their own costs of the
appeal, this court upheld the linding of the
master in allowing them such costs. out of the
estate. / /'.
Where uiiiieccssary parties were made to an
administration suit, the court refused to burden
the estate with any of the extra costs thereby
occasioned, liniliji r.t v. Itmliiirx, 13 Chy. 4.')7.
A bill had been ilismisscd, with costs to be
paid to the plaintilt'. Two of the defendants
were administrators, and as such had funds in
their hands to which the ]daiiititF was entitled
as one of the heirs and next of kin of the intes-
tate. The defendants had been un.able to obtain
the costs by li. fa., and tiled a petition asking to
be allowed to retain the funds in the hands of
the administrators :- Held, that the court had
no control over the funds, and tint petition was
dismissed with costs. Il/iirk v. liliifh, I Chy.
Chamb. 3ti0. — Spragge.
Where a idaintill" tiles a bill for an adiniiiistra-
tion decree in a case in which the decree would
have ticeii made on notice, without a bill, he is
not eiititleil to the increased costs thereby
occasioned, .s'l,,-. niijn v. SDri-rciijii, 13 Chy. 559.
Where creditors whose claims in the aggregate
were under §2(M) olitaincd the usual administra-
tion order, .and it was shewn that ' lie value of the
estate including lands was uiuier §800, and
although the real estate which it w.as necessary
to sell to satisfy such claims was encumbered by
moitgagu to an anionnt which together with
these claims exceeded §'200, it was held that the
jdaintitt's ciuild not reckon the mortgage debt for
the pui'iHiscs of this suit, and therefiue th.it the
case was within the jurisdiction of the County
Court and the phiintitFs were refused their costs.
/// ri' Scotl~-llillii.'ri)iijtiin v. S/ii-fii.-t, 15 Chy. GS3.
The next friend of infants tiled a bill, .against
the mother of the infants their guardian ap-
pointed by the .Surrogate Court — and her hus-
band, alleging certain acts of misconduct, which
were not eslablished in evidence ; .and the
accounts t.aken under the decree resuUed in
shewing a balance of .about ?"2'2 in the h.ands of
defendants. The court being of opinion thtit the
suit had been instituted recklessly and without
jiropcr ini|uiry, ordered the next friend of the
51
ADMINISTRATION SUIT.
52
ulrJiitifT!! to pay the costs of the ilefcinlants as
tdtween party and partj'. J/iilrlilnsdii v. Sur-
tjciit, !7 Chy. 8.
Ill a suit liy a ivsidaary legatee for the aihiiin-
iatratiou of an estate tlie jdaintill' represents all
the residuary legatees ; and the otlier resiiluary
legatees are not entitled, as of eonrse, to eiiarge
the general estate witli tlie eosts of appearing l»y
anotlier solieitor in tlie master's ollice. To
entitle them to sneli costs some sullicient reason
must be shewn for tlieir lieing reinvseiited liy a
separate solieitor. ilorlinin v. (lurlium, 17 C'liy.
38(j.
In case a creditor brings an adiniiiistratiou
suit after being informed that there are no assets
applicable to the payment of his elaiiii, if the
iufonnation apjiear to have been substantially
correct, he may have to jiay the costs of thesuit.
The Vitji Bank v. Snilr/im'/, IS Ciiy. IS").
The f.ict that a creditor of an estate has pro-
ceeded at law after a decree for administration
has been obtained, is not sutlieieiit to deprive
him of his costs, eitlier at law o, ' a motion in
this court to restrain his action. '.V Ldini/ni,
ischy. r),m
V. AD.MiMs'nt.vTioN .VI) Lrn;.\;
Where in a creditor's suit, to whose cstati.'
administration ail litem had been taken, the bill
alleged that there were no personal assets, and
the parties interesteil in the real istate had suf-
fered the bill to )m^ tiilviii against them pro con-
fesso, and did not ajjpear at the liuaring, the
court made the usual decice, withnut reciuiring
a general administration to be lirst obtained.
Jjfi/ V. JJti/, 'JChy. I4!>.
The court will not apiioint iin administrator
ad litem of a ii, I
Chy. Chanib. .'VJ.'I. ,Mowat.
Where a suit for the administration of an
estate is pending in this Court, it is improper for
the Surrogate Judge to interfere by ordering the
allowanceof acommission to trustees orexecutors.
('iiiiiiriiii v. lidltiiin, 15 Chy. -ISlJ.
An administration suit by a person interesteil
to an amount less than .'S'JOO in an estate whicli
considerably exceeded .ii!SOO, and against which
a debt proveil (and the only debt proved) ex-
ceeded that sum, it was : — llehl, not to be wltli-
in the ei|uity jurisdiction of the County Court.
(,' Ji/swil/i v. Oj,Uiiiitli, 17 Chy. LM.3.
Where a testator dies in a foreign country
leaving assets in this province, the court, at the
instance of a legatee, will restrain the withdrawal
of the assets from the jurisdiction, iiotwithstaiul-
ing that there may be creditors of the testator
resident where the testator was domiciled at the
time of his death, anil that tliere are no creditors
resident in this province. Sluwir v. O'nii/, IS
Chy. 41!).
Where a debtor dieit, leaving insullicient per-
sonal assets to pay his liabilities, and his executor
notwithstanding allowed a creditor to recovers
judgment ajainst him by default : — Held, that
the executor, on o))tainiiig an administration
order, was not entitled to an injunction against j
proceeding on the judgment. JJoik r v. A'lws, 111 i
Chy. MM.
The doctrine against double proof applies oulv
when both estates are l)eing administered in
insolvency. A creilitor w ho lias j)roved in iiisil
veiiey upon a promissory note made liy an iiisdl
vent linn, can prove as a creditor in an aduiiiiis-
tration suit against one of the parties deeeasnl
w ho has sej)aratcly endorsed tlie note. J{i- Baku
^B, -I I !/'.■< fliiliii, H Chy. Cham)). 4!M». I'mv,l,|
MiiK/,',:
Infant ehililreii of an intestate olitaineil ai.
administration order against their mother, tik
administratrix, and the master found as iiro|.iti S
to lie allowed for their maintenance a sum t.
meet which tiie personal estate was inadei|iiati
and on further directions a sale was asked ul' tin I
realty to satisfy the sum so allowed. Tlie eniii'i
refused to .Hanetion such a sale, being satislipi
that the suit had been instituted for that |iiir I
po.sc merely, and was an indirect wry of ilipiii.j
what ought to l)c doiK! uiiiler the provisieiiM:
l'2 X'ictoria, and the order of tliis court iiiaJ
to carry that Act into elleet : and .as the ii
furnished only a small part of the inforiiiati>:|
which would neecs.saiily l)e laiil before the iniirj
under tlic Ai^t and Order referri.'d to. F'iiii;\
V. Friiiric/.; •JOChy. :tSI.
Where the court is satislied that the (jutsti^':
of maintenance arises incidentally in a suit, aii
that it was properly instituted in order tn ttj
administration of an estate, and not as an iiiJ:
I'ect nioile of doing what ought to be doiieiiiiili
the provisions of l"2 \'ictoria, and the ordeiv^
this court made to carry out the saiin',
i|Ucstion of maintenance, i)ast as well as fiiti;::|
can pro})erly 1ki dealt witli, inasmuch as a giu
deal of the information reijuired by the hVmM
niid orilers referred to can be evolved in takii
the accounts in such suit ; but where suclia!-!
was instituted by a party asking for niainteiiatJ
out of the corpus of the estate, the court aif
.13
ADVOCATE.
H
I'lieck iipoii sui-'li suits refused to make any
direction as to maintenance. G nod fellow v.
R(inni<\ 20 Cliv. 425. See also [v rr Fo.ilrr rt nl.
V. Pdt'krMii, }l>. 34").
AD.MINI.STKATOR.
Sii' Admini.'^tration Suit— ExKcnoii.^ and
AnMrNISTRATOKS.
ADMIXISTKATOII AD IdTKM.
Src. AUMIMSTltATION SriT.
AI)MII!AI,TV.
I Held, that the great inland lakes of Canada
I arc within tlic admiralty jurisdiction, and ofTonuea
Icoiiinitted on thcni are as though committed on
I the high sca.s ; and therefore any magistrate of
[this jinivince has authority to en(|uirc into
lofTeneos committed on said lakes although in
lAmcrican waters. Nc'/lna v. Sluirin , o 1'. K.
1135. -ChamV).— Wilson.
ADMISSIONS.
'. In CiiiMiNAi, ('asks— .S'(< C'ln.MiNAL Law.
11. In KvinicNri; -,SVc Evidknci;.
111. liv ri,i;AiiiN(:s--.SVc Kvidkxck.
— • —
ADMIT, XOTICK TO.
rRfiirc a party can tax the costs of olitaining
eMMiiiiliUcation of judgment, he must serve
liu iitiici' siiln with a notice to admit under the
bIc I if court, 28 K. T. 1842. The master,
vevcr, thougli he cannot allow such costs
ithimt imtico, &c., may allow the costs of pro-
liirint;aci>]>y of the roll. Cumjir v. MrKirhiih',
C. i,. Ciianil). -J-JO. -Uurns. '
On a notice to admit, no summons can he
I'll nut until tlie ex[iiration of forty-eight
lis fhiin the t'nie siiccilied in the notice for
iiisjicctiou of t!ic documents. Vnni v. Cum-
rl'iu,/, 1 1'. 1!. llO-Chand).— Buras.
war, a minor, jiurchased lauds and huilt thereon,
and paid for tiio i)roporty out of moneys pro-
iluccd hy tilt; joint lalior of himself, his wife,
and the ilaughtcrs ; tiie deed for the property
was taken in the name of the wife, upon the
understanding that sin; should hold the same
for the ))etRlit of herself and husband dur-
ing their lives, and after their decea.se that it
shoidd go to the claugliters. I'>y his will the
hiisliancl declared that lie had no real estate, Imt
desired the wife to direct her executorB to sell
the jiroperty so purchased, and divide the pro-
ceeds het'Aceii his two daughters and a daughter
of his wife liy a former hushand ; — Held, on
appeal, allirniing the decree helow, that the
purchase cimhl not he treated as an .advancement
to the wife ; th.at there was a resulting trust in
favourof the testator; and th.at the trusts in favour
of the daughters, if declared, having Iven so by
jiarol only, were within the Statute of Fr.ands,
and tlierefore void, (iwynu'-, .J,, diss. Ovxii
v. K< ninili/ ( /ii Ajijnn/J, 20('hy. 1()3,
AnULTKHV.
I. I'diii i;rn hi: or DuWKi; ,S and
WllE.
|III. Ivr.l.lDK I'KOM At.IMDNV .Sii HlSHANI) AM)
WlKK.
ADV.ANCEMIvNT.
To Iniants Sii' Inkant.
|A man hy arrangement with his wife and two
Bglitcrs hy a former marriage, — one of whom
Ai)\"i:i;sK I'o.s.sKssiox.
■Vtf. ClIAMrKUTV AM) MaINTICN ANCK — EjECTMEST
— Li.MiTxiniN OK Actions and Snr.s,
ADVEKTISEMENT.
1. Si;i!vi(K r.v ON AiisENT Dekendants.
1. //( /o/Vc/iw»)V Sililii- Sec Mortoaoe,
2. I Hill r Crf.sv.v— I'l.EADiNu in Equity—
rUACTICE IN EyuiTV.
II. Ok Sale ok Land — Sw Assessment and
Taxes -Execution-— Sale ok Land by
ounEit OK Tin: (.'orur.
Misreidi'.'^eatation in a<)(!.
To ell'ect a sale by trustees under the Act
res|iectiiig tla: property of religimis institutions
ill I'pper Canada, it is e.s.sential th.at all the
reiiuiienients of the statute should be complied
with, .and therefore that ttie public notice should
state the terms of the intended sale. In re tlir
Siriiiiit CiDiijriijiitiiiiiiil Vliiircli jiiv/iiiii/ Toronto,
I (.'hy. Chanib. .St!). Mowat ; lii Ihv Bai>tiM
Cliinrli iini/iirlii of SlruiJ'oi-il, 2 Chy. Chainb. 388.
Taylor. SKntnrij.
Where ilefciidant li.ad been served by adver-
tisement, which by an oversight h.ad been
inserted only three times in.ste.a(l of four, on an
application for an order pro eonfesso, it was
ordered that defeiulant be re-advertised tha
proper number of times. I'atrkk v. livtsii, 2 Chy,
Chamb. 4."ia
ADVOCATE.
Sii BaUIU.STEII.
A.FFIDA" IT.
56
I
II.
III.
IV.
V.
AFFIDAVIT.
ArriioRiTV to T.akf,.
I, ('iiiillllU.thiliri::.
(a) K'fii'l of ;>ii'i>rii'h)ii 'if (' mini i <•■■<, ."),").
(I)) A//orii'!/-^ ill llir I'miAi', or tlirir
/^arliii iv, 5(i.
(c) Affiilnvlts sworn Ahronil,'y\\.
(i\) Other Cases, ."iT.
Form of.
1. Iiitiniliihj, ,")7.
"2. X(Uin- of Dnpothvi', ."0.
3. Aili/i/ion, T)!).
4. Contents, CO.
■5. Interlinral'ioiis, 02.
6. J lira I.
(a) Srirral Di'poiienfs, 02.
(b) 0//(./' Ciisis, 02.
((■) /» Affiiltirils In lli)!'l to Bii',1 - Stc
Arrkst.
OkIK r. ('ilPIF.S, 0,"?.
MisrF-.i,i,\N'Eor,-i C.vin;-, Ok
Is P.Miiri II.AI! < 'ask,;.
1. ror All'if/iiii' III - S>
T)nnroR - ArrAiini'
imosiiiNii
Kr.mx.
2. S .'linn ii'i'l'' <''i't Sliii/iifj Proi-iii/iiiiis
on Aifiiril- S I' AiuiiriMTioN ani>
Aw ARK.
.'!. Fi'li' /'rodr'/illijs -Sir .iiUtUSI -J)AII..
4. Com mission to lii/,r I'Jriilrnre—Sei ('om-
MISSIDN TO KXAMINK WiTMXSKS.
o. On Hills «;/■ Sdlr nnd Chnlti'l Mortiio'iis
-Sir lill.T.S OF S.\LE AND ClIATTFI,
MoRT liAliF.S.
0. Of Loss iinilir Pnliri/ — ,SV( Insirancf,.
7. (^>iiitihin;l lhi-lairs--Si< MrNicil'Al, CoR-
PORATF.'NS.
8. //( ()//(';• r'-rs'S -.S' • TllK .Sf.VKRAI,
TiTI.F.s,
I. ArnioiiiTV To I'AHi:.
1. Coniiiiis.iioii'rs.
{a) Elpct if si'jiaruthm of Cuiintirs.
A coinniisHion Avas granted for the Midland
district, -wliichtlu'n included the present county
of Prince I'Idward and tlie united counties of
Frnntenac, Lemiox, and Addington. I'rince
l']dward was afterwards set aside as a scjiaratc
district, the commissioner then heing resi(lentin
the united counties of F., L., and A. : — Held,
that his authority in such united c((unties would
contiiHie. MiAVhirlir v. Corhii/, 4 (,'. I'. 20;{.
A commission to take recognizances of hail,
&c., witliiu the ,iriil. (,>. B. U'^\.
Held, alliriniugabnvocaso, and dissentiug frnin
Ciirtirx. Siilliniii, 4 ( '. I*. 2'.I.S, tiiut a connnis-
sioner aii|iiiiiited in 1810, for tlic district of (lorn
and Wellington, niiglit alter 12 \'iet., c. 78, and
I I & 1.5 \'ict., c. 5, continue to take allidavita in
(t.alt, formerly witliin tiie (lure di.itrict. I'lnninii
V. McXiinijhhn, 10 Q. R. 11(4.
(b) Aliorui ij: ill III'' r., ami I), were paitners at eomnmn law.
An ailidavit tendered by ( '. on an application
intnianeerv, was rejected, it having been swnrn
before!). i)inin v. Mrl.nni, h. ,1. ^'. S. 212.-
ChyChamb. Taylor, Itifrn.
(c) Ajli'/iirils sirorii Alirmul.
[Si r lioiiK.'.'f ]'irl., r. 1.'/, O., ii'liir/i /iroriil'sfir
till' tuL'iii'j if njli'tai'ils nhroiiil for iisr in Onliirin.]
An ailidavit of execution of a cliattid ninrt-
gage, sworn befiu'c the miyoi' of a lurcign town,
is useless. I) Fornsl v. linnnill, lo (^>. !'>. ,")70.
(^niere, wliethcr allidavits sworn before a lirit-
ish consul in the U. S. can be reail in au-i\vt.r
toarule. Binl \. t'oLjir, 17 (^ U. TtlJi;.
Allidavits sworn bcfure the mayor of a city nr
town in the United Kingdem received (ni
motion for a new trial. '/'■ /A y v. k'noirlsun, •.'
I\ U. 27.'). Q. 15.
An ailidavit pur[i:)rting tn bj sworn befcirothi
mayor of a city in Fngland is iii uluiissilile iii
this court, without proof of liis signature aii^i
authority to administer o:iths ; but where tli?
ailidavit is sworn out of haigland it is rcceivaMi.
as evidence here, under the lun)erial Statiitu ill
& 15 Vict., c. !)!(. (I'riiliinn v. MuciiIh rsmi, I
(Jhy. C'hamb. 8o. -Spragge.
Where no commissioner tuider statute for till-
ing allidavits to be used in l'|iper Caiiiuii,
resided nearer than 210 miles from a plaio iiij
Lower Canada, where an atlidavit of service w.i^
to be made, the aliid;ivit was ordered tii k
sworn before one of the ordinary connnissifuicn
for taking allidavits in L. (!. d'oidd v. lliikhin-.
son, 1 Chy. Chamb. 18S. — X'auKougluiet.
nc,
AFFIDAVIT.
.58
ilisunitcd
rldo, jinrl
»l.
itiiig fnmi
;i coiniuis-
ct ol' ( liini
c. 7H, iiii'l
iitlavits ill
iicr (if tliL'
If the alii-
V. Ilinnin,
\. \:\. See
relator in a
3 tlio rc'Cii;;-
l!liiis.h II V.
y who is a
130, hut not
y ho rcail,
iiisolvunoy,
|ii'ii.sL'ciiting
tniMer see.
IlilUmni V.
ghcs.
1 ( 'lianccrv.
oniinon I'lw.
appHcation
liet'n sworn
iN. S. -2^2.--
iroriili . (>'. II. ."03.
'I'lie provision of LVi \"ict., c. '.!, s. 'JS, theCrown
Lands .\ct, that all alliilavits reipiired there-
1 under may he taken hefore "any justice of the
j peace,' only emjiowers a justice to adniinist( r
1 the o.atli ill a place whoro he can act as such
j justice. Iicijiii". V. Alkln.-ioii, 17('. I'. '2',K>.
The siiMc interi)i'et.ition of Ihis .\ct ajiplics to
I coinniissioncrs for taking atlidivits nienlioiied
I therein. Hi.
One of the wilncpses swore to the allidavit
I proving tlie cvccuition of the memorial tif a deed
I before the other witness : -Meld, no ohjeetion.
\J(d>(v. WMhhnKi, 10 Chy. 'M(!.
II. Fou.M . S. 11.
Where a defendant moved for a rule, on an
aliidivit incorrectly intituled as to the cause,
and the plaintill', in sliewiiig cause hy his attor-
ney, intituled his allidavits as didVnidant had
intituled his, stating the proper stylo of the
cause, and shewing that ho was not attorney for
the jilaintiir iu the cause in which the allidavits
Were intituled, defendant s rule was discharged,
there heiiig a fatal variauco if there was oidy
one c.uise, and if there wore two no service
Ibciug proved. It was, however, discharged
"ithoiit costs, as defendant's alHdavits were
tituled iu the same way as the plaintiffs,
licreas they should have been intituled iu the
right cau.=!e, denying the existence of the other.
Tn-r;/ v. M„tlhn,-^, 'W 'I". 3& 4 \'ict. -P. C —
Macaulay.
AVhere all the allidavits in a ciuae, after ver-
. S. 174..
Tlie addition iiif "plaintill" and "defend uit"
must bo inserted. Urinrn v. Siimnnnd <, I <,>. V>.
[■->S0. r/,.,/; v. /'.'/•/■, -2il 15. OS.
I 'Vii allid nil iiitit;iled ('. D. (tin.' ih.'fen.luit.;) at
riiit of, or, and .\. I'>. (the plaiiitill') is bad.
j Willi, r V. .!/;..■./• ii ill., 10 (,». W. 110: ll'/v';///'
\. ./i nililii/;-, 7 C. i'. I'd; /.I iri.-t v. /!tlir/:ir. I!. i;!'.l.
' AVhere in the styh^ of the cause tin' jihiintilT
was eilled "l)avids Ca-:s," but iu the title of
j allidavits ill support of a rule (((./' in the same
: e ISC, "l>avis II. Cass" and "l»avis ll.iwley
Cass": Held, a f tal v.iriance. Hi irir.'iifiiin v.
Co.-., 1 1'. I!. •.",»!. I'. C. Itiehard.s.
.Mlidivits Uli'ler 13 it 14 \'ict. c. ,'i3, s. S."), to
remove, a cause from the I'ivisidii ('oiirt, must
1)0 intituled in the court in ^\]licll the motion is
made, not in tlu^ Mivision ( 'onrt. Snn/l/i v.
yiriii>l/:<, 1 1'. It. ;!."i.">. Clianib. IJobinson.
Qiuere : Wlu'thcr the allidavits were ]iropei'ly
intituled. 'I'/ir <^>iu; n (plaintill') v. Unhni /■'nr/i;/
(defeiiihiiit), on an apiilieation to ipiasli an iinpii-
sition returned to a writ of n rlinniri, Ri ii'nia v.
I'ui-lrii, L'4 (,>. H. 3H4.
Allidavits in (|ui tain actions must show the
character in which [ilaintill' sues. Iluli, rlxon
(j. t. V. Orrliiiril, 4 I'. It. '-•:!. Clianib. A.
Wilson.
.\n ;iliiilavit in KUp)iort of a motion to ijuash a
by-law, not intituled in ;iny court, but sworn
before a eommissioner styling himself "A (Jom-
niissioiier in l>. 1!. and C. 1'. .ice. '\- Held, sulli-
oient. K'lnijhnrn mnl tli<' ('ovpurnfion of tlw Cili/
of Khi'jsliin, '2{\ {). 15. 130. Soo also Fnr.cr itmf
Till .Miinirijinl Cminri! nf tli" Unilril ('onnlhn of
Sliiriiion/, .(■(•., 10 <>. 1>. L'SC.
Piut where there was nothing to shew that it
was sworn before an oHic(r of any court, the
eoniniissioner merely styling himself "A eoni-
niissioner," i^c. : llehl, iiisullieient. //ironn
iiiiil llii- .Miin'irijinl t'oiini-il itj' Ainhir>. B. '-
See also, M„lln,i v. Shmr, n P. R. 2.">0. Clianil).
Richards; /tuiinr v. liiKhij, lilnck v. Wi'j/i', ")
P. R. 35h'.-('hanil). (luynno.
Aflidavit.-i for an attaL'linicnt a|;.iinHt an ali-
ncondin;.; drlitor are not vitiatcil liy lieing
intitidod hcfoi'o tiie issue of attaehnieril. W'ab ■
Jiilif V Hiiiri, a I*. i{. 77. <'hanil). (Iwynne.
The adidavit of the servici^ of a snl>)iiena ad
reH|iondendiini, diieeted to defendant in an infor-
mation of intrusion, is ])roi)erly intituled in
stylint; the Attorney (ieneral "Informant."
Al/iinir;/ (liiiirnl V. McLiifhIhi, 5 I'. R. (IH. I'.
(:. -A. Wilson.
The iii[)ers and aliidavits u.sed on a motion to
set aside a Ixmd for .soeurity for eosts of appeal
from the Court of Chancery, shoulil be intituled
in that Court. Diiii.ioii v. hiiiifoni, 4 L. .1.
N. S. 45. -Chy. Chamb. -Taylor, Sicntanj.
.Mlidavits need not in their intitnlinL' di.stin-
guiah the i)arties by original and amended bill.
It is sutlieient to describe them as the now parties
to the suit. SdiiurrUlc v. Kn-r, 2 Chy. (!hamb.
154. — VanKoughnct.
.•Mlidavits styled in short form ".\., 15., and
others, jilain tills," and "C., 1)., and otliers, de-
fendants," were heldsnflieient. J)ick(ii v. l/iruii,
2Chy. Chandt. 4!)0. A'anKoughnet. See C/7k//-.<
V. C/'(io/<, 1 ( 'hy. 57.
'2. Xcilf (if l)l jIDIII III.
An allidavit maile for a ea. sa. by a plaintill
who lias two ( 'hristian names, need not state the
second, where his identity suliieiently apjiears
by the atlidavit describing him as the above
plaintill'. I'lrkiiix v. Coiinnl/i/, 4 O. S. "2,
An allidavit of execution of cognovit, made
by "William 1). Haby," signc.l " W. I>. liaby":
-Held, sutheient. Fuliji r v. MfCulltiiii, 1 P.
R. 352. - t!hamb. -Robinson.
It is no objection that tlie second Christian
name of a deponent to an allidavit of the execu-
tion of a chattel mortgage is not written in full,
but tiie initial only given. J)i fornxl v. Khiiik II,
15(>». |{. 370.
II
allidavit on production nude by W. I!.,
not stating any description or additimi, orother-
wi.se showing that he w.ia a Jiarty to the suit,
was ordereil to b ' ' ..■.■.■• . .
3. AddU'wii,
Send)le, under our rule 2 "Will. 1\'., an allidavit
of either jilaintill' or defendant need not state
the deponent's degree, ccrtaiidy not where the
affidavit is sworn in a foreign country. Kirhin
v. Lorkliiirt, 3 . R. 248. See also, 'Li/iikiii v.
n)rlhron,2('. L. Chamb. 108. Draper] Rule
of Court 100, T. T. 1851).
The want of ileponent's addition is no objec-
tion to an atlidavit made for registry of a chattel
mortgage. Brod'ic v. lluttau, Hi i^. W. 207.
" Secretary of the Board of Arts and Manu-
factures ;" — Held, a sufficient ad.('iiamb. Draper.
An allidavit should contain the description or
addition of the deponent ; or, if made byajilain-
tiff or defendant, should shew that he is such.
lioiji rs V. ('niiik..
■I. <'iintiiil--i.
.\n allidavit verifying the copy of a [iiper, "tint
it is a true copy as the deponent is infornu^d,
and verily believes," issiillicient. SIkij'iv. J'urr,
2 *). P.. '.is.
Kxtracts from a letter embodied inan allidavit
cannot be noticed ; either tiie whole letter or a
copy shoulil be licfore tlie court, or at Itiast it
slnudd lie sworn that the letter contains notiiing
more relating to the a'tiou. Vini'i/iiiii v. //•(<-,,
8 q. B. 50li.
.An affidavit is not insullicient for not mention-
ingthe papers annexed separately, nor ]iositively
stating to what they are annexed. MrKai/ v.
Ihaniiiil, 2 C. li. Chand). 1. Draper.
A copy of the by-law moved against wa.s
described as iiiiin.riil, but wai not annexed, to
applicant's allidavit : - Meld, no objection. Hi .«> i/
V. Mmi'iciiiiil Viiiniril iif (Inuilliiiiii, II i^. H. 1,")(I.
The answers of a prisoner to interrogatories,
being styled in the cause, and iutitided in the
proper court, were headed, " The answers upn',
oath of," &c., and proceeded thus: "To fm
lirst interrogatory, he saith," &c. 2. "To the
second interrogatory, " itc, not adiling, In- ■■ni'itli.
To the lifteenth interrogatory only the ligures 15
were jirclixed. The jurat stated that dcjionciit
was sworn, ifcc, "and made oath that thi^ fore-
going answers were true, on the 8lh day nf
March, 1851 :" -Held, that the form of tjiu
.uiswers and the jurat \\ere defective ; and ii
sunnnons olitained upon them was dischargnl,
but without prejudice to another ai>iilieatioii.
Add II \: Briiiis,', 1 P. K. 231. - Chandi. -
Richards.
An allidavit for tiie allow.ince of service of an
attachment sluudd state what cllbrts have been
nuide to ellect j>er.sonal service. Sli /ilmi v.
Dciini'', 3 L. J. (i9. -C. I., ('hand.. Richards.
Costs for sujierlluous or irrclev.int matter in
affidavits will not be allowed, and in cxtreniL
eases the judge will disallow costs for tlie wlmlu
alliilavit. ('urti;/ v. /{olillii, 5 h. .1. 225.- ('. L.
Chand). Itichards.
The ])laintiir having Hied many u.^dcss alliili-
vits, containing many repetitions as well as iijli
statements on information and liclicf, a directiim
was given to the master that they should not lio
allowed to the plaintill's on taxation, altlioni;|i
the sunnnons was discharged with eosts. //'»//» r
V. liKrlri/, 1 L. J. N. S. 273. -('. L. Chamb. -
Draper.
It is not necessary, under the 1 12th Rule 'I'. T.
20 Vict., that an allij\: Walliin, 2 P. R. 1-17. k'- B.
Attention calleil to Rule of Court 1 12, recpiiring
affidavits to be divided into paragraph?. In it
Park and Park, 24 Q. B, 450.
Gl
AFFIDAVIT.
03
have hceu
■miniiii'n'
AHiil:vvits impeaching the oliavactiT for vcra-
lity 111' a (I'l'iiiit'iit wliuhic allidavit iiad l)ui'ii tiled
iiii'iiiipviiina rule, were rejected. rhiH: r. C/u/,-
n,,lii, '-'t! !.»• I'- l'^^-
\ joint allidavit made by the defoiulaiit and
iiii|, I ) stated ' " " " I'lach fur himself inaketli
uitli and Miiith tliat, itc. ; and tiiat he, tiiisdepo-
ni nt, i^ ni't aware of any adverse claim to, nr
II vuIiitioM 111' -^aid lot." The defendant lia\ inj;
been convicted of (lerjury on this latter alle-
iration ; Meld, that there was neither amliignity
iior diuilit in what eaeli defeiuLvut said, bnt that
cicli in :iiciet\ called (^Inakers," and then proceeding
with tiie suhjcct matter of tiie atiidavit, without
any fuitlur alliriiiation ; -llehl, not in compli-
anci' witli the V. S. U. V. e. S'J, s. I. llillhuni
V. .1/;//.. .'i L. .). N. S. -U.— C, t'.— Hughes.
Itcniaiksasto improper and irrelevant exprcs-
siuua in allidavits, and the same censured. Fislicr
V. (//•««, 2 L. .J. N. S. 14. -(.'. I.. Chamb.-J.
\\'}hoii ; JJ(irhl.wii v. dniu'ir, ."> 1'. It. •_'.")8.—
Cluvnib.-- Morrison.
Tlie plaintiff's attorney having stated imper-
timnt anil nrelevant mutter in his aliidavit, ^vas
onlcrcil to pay the costs of tlie application.
Aniinjiiiiutis, 41'. I!. ■_'4'_'. Chamb. Morrison.
See also Ciii-liii v. Holil'iii, "> L. .1. I'L'.'). ('. L.
t'liand). -IlichariLs.
Where the allidavit, on wiiich a motion to
review taxation was groundeii, contained allega-
I tioMS of nii.seoudiiet on the )iart of the solicitor,
j alt(ii,'ctlier unconnected with the dealings be-
I twecntlicsnlicit.iraiul the client, such allegations
I Vere lieM to be scandalous, and were ordered to
ibe struck out of the atiidavits. In /i Filch,
2 Ciiy. rliauib. 'JSS. Spragge.
Alliilavitsilisiiigenuouslydrawn up, « ith a view
I of presenting iuferences and giving colour to
Itlii' transaitiims to wliich they refer, inconsistent
jwith the wlioK' truth, evi'U thougii true so far as
Itliey go, sliiiuld be read with suspicion, and carry
jbiit htllc weight. J!iyiiii( \. Alhn, .') I'. It.
1 4,"!,';. Cliainb. Morrison.
.MiMonduct of magistrate in draw ing up an alll-
Idavit in a case of seduction, inserting tl'o words
Xcr'uiuiii'l connection, insteail of ctiniuf connee-
Itiiiu, stronuly censured : Mclli-'HI v. //((//, '25 ().
IB. :;o;{.
ic court, ma pricier ease, may relax the rule
Irtiiuiring a tli pouent to state his nieans of infor-
Imatiiin ; and wlieie depoiu'iit swore that such a
Idis. Insure Would tend to defeat the cnd.s of jus-
Itiir, tint court dispensed with it. Tin Mii-flnniln
\Utihiii K.iiii-i.<'' Cii. V. Muiliiit, lo Chy. "JTI \ S.
|C'. '.! Cliy. t'lcmib. .'!l!(. Spragge.
An allidavit iiy plaintill's agent, stating that
Be had tile nianagcmeiit of all the plaintill's
biisiiicHs ill this country: Jleld, siillieient to
lluu his source of iniorni;itioii. The expres-
liiiii "owner in fee" hehl to mean the be cticial
viicr. M,'En;i( v. Jiondnii, '2 Chy. C'hamD. :W.
-'rayliir, Sirn htrj.
"). /iitirliiiialloiin.
An interlineation not noted by the commis-
sioner does not necessarily avoid an allidavit.
Lci'inhKj v. Marnhall, T) V. \{. 'iTli. — C'hainb. —
Uultoni C. ('. ,{■ /'. ,■ l,i/.^l,r v. lioiiltoii, .') (.».
11 iV.Vl.
Hut in this court all erasures and interlinea-
tions in allidavits nuist be initialed by the eom-
missioner before whom it is sworn, otherwise
they cannot be re:id. Cri/jjM:ii v. (hiiUuu, '1 Chy.
Chamb. HOt ; McMaithi v. Darl'iifll, •_' Chy.
Chamli. ^1'2. Taylor, Sirri'luri/.
(J. Jurat.
(a) Sirtral Dejioneiilfi.
An allidavit by two persons, not stating dis-
tinctly in the jurat that both were sworn, cannot
bo read. Sicholsdii d. S/jajI'uril v. J{io, ,'J U. ,S.
8.5. See Rule of Court, No. 110.
Hut an amendment will be allowed by the
insertion of their nanicj. Fi^lnr v. Thuijir, 5
(). S. 513.
A jurat stating that two deponents (naming
them) were sworn, is suHicient. Kif/ir v. Ilair-
Ui/. 1 P. K. 1.— P. C. -McLean.
The words "sworn and aHirmed," without
saying whicli of the two deponents swore, and
which atlirnied, and omitting tiie word "seve-
rally," in the atiidavit to a chattel mortgage : —
Held, suttieient. Moi/ir v. Dar'nlsini, 7 C. P.
521.
Semble, that a similar jurat to tin allidavit of
loss reijuired by a tire policy, would be sutlicient.
Mdiiii v. Till' U'i'slirii A.i.iitrinii'i Co., 17 Q. B.
MtO. See also Rii/hui v. Atk-iii.'i, 17 V. P. 295.
It is not necessary in allidavits sworn under a
statute to conform to the teehniealities I'eipiired
by rules of court. .Moi/irw l)iir'ii/.iiiii,~ V. P. 521.
(b) Ollnr C(i.ii:<.
(hnission of the place of taking: — Held, not
fatal. Mi-Lian v. Viuiimiini, Tay. 184.
"Sworn before me at Belleville," (not saying
in irliid ilUt rirt) : - \iv\A suttieient. IliiUiij v.
Wilk'itii, 1 (_!. L. Chamb. 211. -^laeaulay.
rorontu," wit out giving the name
HeKl, sutlicient. Yiutnoti v.
1{. 4(!t>.— Chamb.— Dalton, ('. ('.
.Sworn "at
of a county
Strliirt; 5 P.
,l' I'.
The jurat to an alliihivit on a chattel mortgage
! was as follows : "Sworn before me at the Brant-
ford of in the county of Brantford,
this i:Uh day of October, A. 1>. 18i55 : lieorge
W. Malloeh, a commissioner for taking atiidavits
in the Queen's Heiich, in and for the said county
of Hrant": Held, sullicient. I h For nut v. liuii-
iirll, 15 Q. I'.. ;t70.
To sust:iin a conviction for perjury in an atii-
davit, it is not necessary that the jurat should
contain the place at which the atiidavit is sworn,
for the perjury is committed by the taking of
the oath, and the jurat, so far as that is con-
cerned, is not material, luifinci v. Atkinsou, 17
C. P. 2115.
There was no statement in the allidavit as to
where it had been sworn, either in the jurat or
68
AFFIDAVIT.
04
I i i
elsewhere, exrept the marginal venue, " Canada,
County of Crey, to wit;" 1)Ut the eontents
biioweil tliat it related to laiiilx in that county,
and it was proved tiiat defendant suli.serilied tlie
allidavit: that tlie party i)efori' wlioni it purported
to have lieen nwoiii wa.s a .). I', for tiiat eounty,
aiul had riHided there for some years : tiiat tiie
alHdavit liad l)een leeeived tliroiigii tlie post
otiiee, liy tlie agent of the Crown lands there,
liy wlioMi it was forwarded to the Coniniissioner
of ( 'row II hands ; and that Hulisei|ilently a Jiatelit
issued to tlie party on whose liehalf the alllilavit
had lieeii made: Held, evidence from which
the jury niigiit infer that the allidavit was suorii
in the County of Crey. ///.
When sudrii hy an illiterate person, the oiiiis-
Mion in tlie jurat ot the statement that the
deponent appeared to understand it is fatal.
Miinri' v. ,/iniit:<, Dra. '_'!!.'{. See lliile of Court
11 ;i, 'l\ '['. KS.")(!.
An allidavit of loss under a lire policy « liieh
had no jurat, and was not in the form of an
allidavit : Meld, iiisuliicient. S/iair v. ,S7.
LiiuTiKCc Ciiiiulii Miitiiiil hisiii'iiiiri' Co., II C^).
I'. 7.'t. See also Minni v. 'I'lii Withrn Ai'siiriiin'i'
(■<:, 17 (,l. 15. I!t0.
The jurat may he referred to, to explain the
date of a fact deliosed to in the allidavit.
/>'/■- //,
1(111,
•_' C. L. Ch.inil). lOS.
Ll/IIKUl v.
Draper.
The ailditioii of the words, " a coniniissioner,
&e.," or "a coniniissioner," or "acomr." to
tlu' coiiiiiiissionei-'s signature is suHicieiit ; anil
bciiililc, no addition is necessarv. lliinlirMi)! v.
Jhirjiii; '2Q. H. <.I7 ; l!r<,irii v. /'
Q. B. •_'7!l.
Ill allidaxits of cxcculioii of lionds, itc, pro
diiccd for the approval of the Court of < 'iianeery,
it is siiUicieiit to use the form of a jurat gene-
rally u;;cd. /;, Aiisihronk, 4 Chy. lOV.
'i'lie omiMiiiiii, in the jurat, of the name of the
ilepoiiijiit, vitiates the allidavit. J>ii-!.ri/v. I/rriui,
I Chy. <'liaml.. 'JlCi.
Spragge.
HI. Oi'iii'i: CoPiEj.
If oliice cojiies of allidavit:' are demanded, the
liartics tiling tlie attidavits must furnish them ;
and the costs of any dehiy oeeaijioned by hi.s
not doing so falls on the Jiarty in def:iult.
Hurruifi V. Haiiiri/, '2 Chy. Chamh. 18(J. — Van-
Koughnet.
In an action for malicious arrest, i"i examineil
copy of the allidavit on which tlie ai'rest w.is
made, coming from the hands ol the propci
olliccr, and slicu ii to have liecii used m tlie
cause, is sullii'ient to prove tiiat it w:is made hy
defendant. .S'/kc/o/v/ v. Jliir/idmiii, ltd. S, ',W\ •
Fll-. ; (Irnul \
Ttiiiliii\ '2 {.}. Ii. 407; /liiiiir/iiiiii/) V. Cos.;, I 1',
|{. '•J!)I, -I'. C. -Itiehards.
The I'oiirt will not try matters of f.ict upnn
atlidavits. Where, theivfort', defcnd:ii.t niovnl
to set aside a verdict, hecauHc the notice of tri.il
had not heeii served in tinii', ami the plain
tilt's attoiiu'v swore that ilefciidant's attorn. ',
agreed to take short notice of tiial, which lli,
jilaiiititi "s attorney denied : Held, tliat the v, i
diet must he set aside. Smilli v. A.ih, ,"> (,). 1!, 4!I7,
A ,lndge in Chamhcrs will not //'//the merit
of a ease on allidavits, hut he may juopeiK
receive and consider explanatory allidavits til.,1
in reply, so as to he ahle to exei'eise a discivtimi
on all the matters properly liefore him, ami giim:
relief, if he think the facts hefore him warniiu
it. '/'/«■ /Still/: III' Miiiili-Kil v. Iliirrli Fiirn-il v, Hiuiin/I, ['> {}. I'., .'i;(i
.Miiiin- V. />iirhls,„i, 7 (.'. 1'. r.-_M.
An allidavit of notice to iinuliice is not :i(liiii-
sihie under C. I,. 1'. .Act, IS.'iti, s. I(;7, uiilc-
made hy the plaintili's attorney, or lii:i cKii
/'((/// /-.sj/i v. Miin-Unn, \~ i). 15. KiO.
In ap)ilicalioiin of strict right the I;i\\ will in:
aiiiiinie tli:it :in atfiihivit, m:ide hy " the agtiil |
of a pcrsiJii, is the jirolVssional Toronto agent,
such person, and tlnit such person is ii practi.-:iii.|
attorney. A, ./;- v. /'r-/,//, 4 I'. 1!. •24(!. — 1\ C
.Morrison.
Allichn its cannot he rc:id on a motion wlu-rl
the intention to read atlidavits thereon is
mentioned in the notice of motion. - -/■'«/vj
v. .Mtiilijii, I (;iiy. ;)00. Iviteii.
.■V p:irty cannot use atlidavits not used Ijim!
the Secret:iry, or make a new ease, on ap[ieiil 1p:|
Secretary's order. Bank of Muntnal \. Hi/: f
'J Chy. Chsunh. 1 17. - -VanKoughnet.
Allidavits are admissihle, for some piirpusni
on ail investigation of title between venilor aif
vendee. Where, however, an allidavit
offered to prove tlie loss of a will which li>j
been pro\-ed in a .Snirogate Court in New Yorii
hut h;ul never been registered or proved J
(Jutario, and there was some reason for apiir"
hending that there existed no legal means j
fxainiin;il
iri'i'st «Ms
lie \tYi<\>'\
ImI hi tllr
) m:uli' liy
(). S. :il>l;
I, ; \yl:iliiliU' ill
; (Irani V.
Clt.-:, 1 !'.
1' I'.iit i\\'"n
ilai.t iiiiivtil
itici^ of trial
thi! l>liiiii
it's iittiiriiiy
1, wliicli tlic
thill tlu' viv
, r)t.>. r.. ■»'.i7.
7/ tho iiiciit,
lay \iiinn'ily
tliilavits lili'il
J a ilincvotiiiii
im, ami grant
liiiii wanuia
,•;.,„/-, 1 1', i:.
Hilustidii Wa-
ll ikfeliilauts
lavit iiiatlo 1')
s agency, an !
for a new tri;ii
aiiitilV again-!
Ht (lutViidaiil .
cliaitt'l iiiiut
same iiaititu
llliM IlL'tlll'l' till
-, t>. I'.. :i;o
i:f 111 it ailuii
1()7, mill
nr lii^i tUil
law will U"'
"tliij agdit 1
I into a,L;i--nt>:J
H a iii'ai.'tisiii.j
motion wlirt.j
thereuu is i
lotion. - /''' purehager, should he be
coiiipi'llel to accept the title, the atliilavit was
liilil ill^,lltlicil■nt evidciict'. /trm/i/ v. IIk/Zs 17
Cliy. •>!"•••
Ill !i pro.icciitioii lor perjury on an allidavit 1
Hwoiii before a justici' of the peace : Held, that
the swearing before tiic justice of the |,eaee, and
tin: taking the oath by dcfcmlant, were made
out '^y proof "f their signatures. linihiii v,
Alkh»nn, 17 (-'. I'. ■.'!!.-..
I The rule in force in lOugland (DaiL I'r. 810)
that a party who has made an atliilavit must
submit to cross-examination upiui it, if reipiired,
Oil notice to his solicitor, before taking any fur-
ther steps in the cause, being founded on a spe-
cial Hiiglisli oriler, has no application in this
I Province, (li'iinl v. Wiiirlii'stci; P. H. 44.
I— t'hy. t'hamb. Hidmested, l{(j'arty i umplaining. The court, nndei- the eii'-
cnmstances, nd'usid a nuitiim for an interlocu-
tory injnnctinii, but icsiiveil tile ipiestion of
costs to the healing. //'.
Every one has a right to the airmi his jiiiinises
nncoiitaminated by the iiciiip.ints of other pro-
perty, though those who li\f in a city cannot
insist on tiie complete inimiinity from all inter-
ference whii h they might have in the country.
Hut the oicupaiit of city property eaniiut justify
throwing into the air in ami armind his neigh-
bor's house any impurity which there are known
means of guarding against, i'ln-lirrhihl v. (inn/,
iL'Chy. .S!»!l.
T'he defendant erecteil in the city of Kingston
a planing machine and a circular saw driven by
steam, and was in the habit of burning the pine
shavings and other refuse ; he took no means to
consume or prevent the smoke, and it being
carried to plaintill's premises in snllicient
iiuantities to be a nuisance, the defendant was
decreed to desist from using bis steam engine in
8n(;h a manner as to occasion ilamage or annoy-
ance to the plaintitt from the smoke, /h.
ALBION, TOWNSHIP OF.
Tolls can only be collected under '.) Vict, c. 88,
s. [i'A, on the Vanghaii branch of the AII)ion
Plank Road when the road is maile. I'lii'ina v.
J/iiysl,'Uil, 7 ERMAN.
I. .Ii'sthe of the Peace -.S'ee Ju.stices or
THE Peace.
11. Other Matteus KEi.ATiNii to — .S'ee Mu-
nicipal ( 'oRl'ORATIONS.
Held, under the Municipal Act of IStih', as
amended by 31 Vict., e. 30, (•., that an alder-
man is not ex oHicio authorized to act as a justice
of the peace until he has taken the oath of
iiualiticatiou as such, liiii'mn v. Hci/lf, 4 P. R.
25G. -Chamb. Morrison.
A warrant of eouimitinent under 31 Vict., e.
1(>, signed by one qualilied justice of the peace,
and by an alderman who has not taken the
necessary oath, is invaliil to uphold the deten-
tion of a ])risoner confined under it, though it
67
AMKX.
08
I I!
ill
iiiiKlit Im II jii'lili<"iliciii I" .'v I" r«"ii :iitiii'; miiliT
it, ill nil iutiiiii ;i;,',iiii>i; < km>-
AM'-> ill l!i:\i. l!-r vii:, (IT.
I I. I.'II.MT III Mill., 71.
III. Ml rr.i.i.Asciii ■ Ca-ks, 71.
IV. Ai;i!i;si- UK, wi i;s Dnr.r Cum iiArrr.n
Ai:i;iiAii .s'l' Ai;i;i>;t.
X . |!|i:lir 111' \\'l|iii\\ '. I.I llnWI.i; Sir
Itiiu i:i,'.
\l. AriliiN UN l''(il:i;ii:-. .1 1 hi: Mi'.S'l' -Sir
,1 1 |ii;Mi:s I'.
I. niiMir 111' Al.n'.N>i AVI) I'lll'll: IH'sri'NIiANI's
111 i;i;u, K-^iATi'.
I'.y l'_' \'ir(., !•. I!I7, .'-. I-. iiliiiiM ail' imw
I'liiilili'il til liiilil rial rstati' in tins l'rii\ iiiii- as
tiilly ami ill'i'itiially as iiatiir.il Imiii :-iilijt'i,'t.s.
Mil mill V. Jliiiiii, 7 thy. 177.
.\ii cstati' li'^ally viMlnt ImI'ihi' I'J N'irt., o.
II»7, will nut 111' takrii away liy it irniii tin.' jms-
si'ssiir, so as |u I'lititln tln' luii'-at-law, thniiyli
an alii'ii. /'•" il. "7',,„„,,,- v. M,i/,,ii< i/, !l (,•. 'l!.
lViI.
A ciMiMyaiiii' til an aliiii is nut vuiil, Imt ho
liiilils I'lir till.' ( 'riiwii, anil it is imt siilliriiiit fur
a iilaiiitill in cii'itiMint lu |ii'ii\i' that ili'lrinlant
rl.iiiiis thruiiy.h an alirii, ami a titli' in hiiiL-ii'lf
w hiili wiiiilil iia\r iiri'ii ^^iiiiil liiit lor ili'lVml.'int's
titlr. /'." il. /rir/,,iril. .S. L'HL'.
A ]irl'siill hiiili ill the I'liiiril Slati'S lii'l'uri' the
n\iiliitiiiii, ami rr--iilriit tlnri' siiirr, is an alii'ii,
ami caiimit in.iintain rji rtniint. />'» (Im. II., r. ~, uf tin' light tu
an fNi'Littiiiii ayaiiist thr l.uulsuf tln'irik'litur : —
Seuibk', till' alifiiagi' sliuiild lii' ph^aiU'd in bar uf
execiitiim. Wuoil \. ('uiii/ih./l, -.U). 15. •_'(;•».
Si'Vi'ii yi-arM* ri'Miilt'iici.' uf a jiarcnt (ufurfiKiiui)
ill this |ii'uviiii'(> IfiKhtiif smi tn iiiliurit '.Mini.
IN'., c. '-'I, 'I & .1 \ iit. I'. 7, 7 N'ict. o. -VA Ih), il.
rill, Hill, I- V. ■/',.,■.;,•, (I (,). li. '.'Mi.
Ili'lil, niiihr till' i.'iri'iiiiiKt.'im'1'.s statril in thi-,
case, that .luhii Hay, \n liu was liuiii at I'ctiiiit
ill 171!'.', liiiin; a natural limii siiliji'ct, rmilil ii>>t
iusi- his liuhts liy ri'si.liiif,' in a furi'inii I'liiiiitry,
or liy liiililing ulliii' thiii. ; that lif was iiut
aH'i'rtiil liy till' SI riiml rlaiisi- uf till' ti'L'iity ni
I7!M, (i.iiliiniuiil.\ lallril Jay's tnaty,) fur tlmt
I'L'latrs only tu tlmso prisiiiis ivsiiliiig within tin;
jiirisiliiiiiiii uf till' [lusts rili'rri.'il tu in tin.' treaty
at till' tiiiii' >'i tliiir t'vaiilatiuii in I7'.t(i : that lli>
plaintill, his muu, as thr sun uf a natural liuin
Mulijrct, was within I (iiu. II., c. 'Jl, whii.li
applies as will tu l!uinaii ( 'atlmlii's as tu I'luti'..).
taiitij ; ami that In' was Iht'iffiii'i: tiititliil tu
rijcuvL'i'. /'." il. Ihiii \. Ihiiil, 1 1 i,>. II. .•t(;7.
Wlii'i'i' a party uwniiii.; ii'al istali' in iiKin
I'liuntii's than mil', \iilnntarily lift Ipiiir Caiiaila
in liSlL', tu iisiih' in a I'liiiign lunntiy ; IKIil,
that iimlir ."il ( u'u. III., o. ',(, it was nut mrev
Mary tu appuiiit a I'liiiimissiuii tu ('ni|iiii'(j intu tlu:
facts in iiiuri' than uni' lunnts ; ami siith ruiii.
iiiissiiiii liav iii;{ lii'i'ii issiii'il, ami nut traviirsnl
within thr tiimr alluwnl liy law, ami wliiili {
tli'i'lari'il till' jiaity, into wlmsi; mIiiIhh it wa,
issmil tu I'miiiiii', tu 111' an alirii iiiiili'r tlif trrui, ■
uf till' statiiti', all lamis in Ijipi'i' Canatla lii'raiiii
thrrrliy lurlrilril : llilij, also, that the ami .^Inr t
uf tilt' plaintiir, tliriiii;^h wlmni hi' rlaiiiiiil liv ,
di'visi', lii'iii;,', iimli'r tln' I'irriinistani'i's aliuvr- J
nK'iitiiini.'il, ilrrlanil an alien, he was iinalili' l>
liulil laml within the I'luvinee, ami emilil imtj
thiiefure ilevise the same, aiiil that his laiul- !
iipuii ullieo fuiiml lieeaine M'steil in the ('iii«ii,
ir.(//((i'i V. Ailiiw«i,i, IOC. I'. SM.
The ."4 1 leu. III., eh '.I, emu ts that all jh i-,ui..
seiseil uf laml in this I'ruviiiee, w liu hail wilii
drawn intu the I'liiteil .States sinee tlii' 1st :!
■Inly, ISI'.', withiiiit lieense, ur shall ilu sii iliirin.
the war, .shall lie eiiii.>iili'reil aliens Imrn, aiiu
imap.'ilile uf hiildiiiL; land within the i'rmiiM.
The luivermir, iVe., is tu aiithuri/e personal
tlie several distriets uf the l'ru\ inee tu eiii|iiii
and return liy imiiiisitiuii tu the I'uiirt uf Km.
Iie'.ieh the ll.ilues uf smh persuii.", seised uf l:ii;,
in the respee(i\ e distriets, and after .smh IIihIiil
it is eiiaetiil that tlie lands fuiiml tu have l«r;
theirs shall vest in Mis .Majesty : I'riAideil, Ilu
mithin;^ therein shall prevent peisuns iiiteii>ti
j friiin travei'siii;^ the impiisitiuii within uin' Vi.'
I after the limlini;, ur after peaee shuiild lii'i.slairl
i lished. I'.y ."liiCeu. III., eh. I".', estates tk|
: fulind are vested in Cummissiuiiers ; |iruvisiiiiit
' made fur pnlilishing the lands returned, ami i<
I settlement uf all eiaims therelu ; the ( 'uliiliil'l
sinners are direefed tu Sell them; and it.
I enaeti'd that all laml iiii w liieli mi elaiiii shall >.
iiiaile ]iursiiant tu the aet, shall lie taken aLiaiii-j
{ ,'1,11 |ii'rsuns, and tu all intents and piirpuses, ti
J Vested ill the ( 'uiiiiiiissiiiiiers. Tin.' plaiiit.:|
elaimed the laml ill i|Ue.stiiili as devi.see vi •
I \\'., his father, w liu reeeived a Jiatelit fur it -|j
I7'.IS, and died in IS'.','}, in the United .Statr
haviiii; left Niagara, where he had been liviiJ
ill ISI,'!. The deleiiilaiit elaimed thl'ullgli au.f
\i'yaiiee fruin the Cuininissiuiiei'S, and put in j
ciiinmissiun issued in ISIT), under the :>l ''i
III., e. !•. appointing certain persons naiiitii
Cfiiiiiiiissiimers for the Niagara District, ail
ifiviiix t
liad h'liiii
if Nil, tl
pnivi'd I
eoiniiii<:.
mill u.ii
tilU'll uf
nliiili w
iiiis.siiinei
ili'fendaii
.'^nm III I
intiire, a
had not I
lirfiil'e tl
Cie. III.
iiijed fn
..ml that I
the faet I
and evteii
wlliell he
tri't tn wl
as an aliei
Wa:< iliseiiN
in till' stat
ilir'i/ri'ili I,
was liy it
y/i »',//, L'o
N,, a eiti:
I'riiviiire ai
died ill IS.'l
one liiini in
I the other t
Ciiiiveycd tl
I meat : Me
V I'liineyai
'ieii heir t
"lli'i; iiiiti
.id till' plai
I deed. Iiii-i
fiO
ALIKN.
.I'll in tills
;il Uftloit
, Clllllll llllt
■11 oiiuiilry,
O NVIW lli't
• Iriiaty oi
;,) lor "lliilt
Vsitllill till!
II tin; tivaty
ll'i : that tlie
,;illirill liulll
•J I, Willi ll
iH III I'riln-
(Utillill lii
1. II. :{»i7.
tuti' ill ll'"!'
iiiifi- t 'aiiiiili
it'y. IM.I,
in nut iiiM'i-
|uirii iiit'i 111'
III siu'li I'i'i"-
lilt traviTsi'i
, ami wlilrl.
■ihihii it \v:i
llcV till' llTlll
aiiaila lirr;iiii'
t llif ami 't-i
f ciaiimil I')
t:im'i'S aliiAi-
ivas uiiaMi' 1
mil viiiilil li''.
.hat lil« l^iii'l
ill till' CinWl;
f;
iviiw Hi'i" l"iwt'i- til cmniiiv w ln'tlur »aiil \V. ■ ii,ui:il mtlj . |ii< iiiJirl," aiimania> nf thi.-i j IT'.'T, ami arrant ii'iiMiii^i'mlril mi tlii' Inllnw in«
loiiiinit'liiii. timlin;,' that W. hail ni>\w iivi'r, i ilay. .laiiu'i ri'niaimi! in tin' |iiii\ iiii i' niilll hn
iinil wai Ht'l-ii'il "f rirtaiii lami t<|irrilliil in tim ! ihatli in l.si;t, liavin;.; Imiliin tlir I'linl ini|in.i-
tiiwii "if Nia^'ira, anil nl tli'' laii'l in i|iii'.-itiiin, (imi nim r I.SOI. .Iniiatliaii, in l.sdl. ri'i'iiMil
wlili'li wan ill till' lliiini' Histrlit. 'I'hi' Cmn-
niisiliim'i'n rniiviw''! ill l'**-l t" ""'' ''■• ■""' t'"'
ili'fi'ii'luit rlaiinin^ iimltT him wint into iihh-ii's-
,,i,iii ill I'S'.".'. till' lami iMin;^ thin in a Mtatr nl
intiiri', ami ha'l hcM rvir ninri'. 'I'lii' |«laiiillll
hail mi't Im'l'Ii in thin I'mvimi' fur Iwriity yrars
hcfori' the actiiin: lli'M, I. That l.y the oil
Ci'd, III., f. I-. tl"' I'l'iintlir was I'lraily |>ii'-
. ,|i'il friiin riiiilrstini! the ( 'nniinissiunrrs' titlr,
,,iiil that 111' Ihin'f'ii'i nhl mil ri'invi'r. '_'. 'riiiit
till' furt iif \N'' lii'ln.i; an alli'n waswrll fmiml,
Hiiil I'vtcmlril in its cMi'it to all v.nant lami of
■tthlili hr was si'iscil, thoii^'h imt within tlm ills-
I ;,'ranl of lami In this |ii'ii\ iiici', whlili, ainon;^
oHn'i' lhln;;s, |iiii\ iiiiii that any onu roniiii^
into jiossi ssioii of till' laiiil iilionlil wilhin (wrlvi'
niiiiilhs take tin' oath ol allr^lami' ; lull in I'Sdi
111' wint to live in tin' SI iti' of .New Nork,
wliri'c h" I'liitlniiril till his ilcalli In ISIil. .Inlin
ri'inaini'il in Ihr |irii\ii , ami illi'ii here in
I.St'.'; Ili'lil, I. 'I'hat till' |iilllion w,is ailuiis-
silili' as i'\ iilfiiri', wllhoiit any |iriiiif oi tlii'
si;,'natiiri's. •_'. 'I'hi' ruiiil ln'iii;,' cniiiiiwiTi il to
ilr.iw iiifi'i'i'iii'i's as a jury, that it iiil;,'lit |iro-
|ii'rly liiMiilVri'i'il that thr thri'i' 'nollnrs h.'nl
laki'ii the o.ith of alh ''iaiii'i' ln'f ilu .sonio one
ic o;iili 111 al
tli. f In whii'h till' roniini.ssion issnt'il. Wlu'thcr : iiro|Hrly antlnirl/ril. .'1. 'I'h.it as to .lanu'S, liiii
lis an iilli'ii till' 'h'visc niaih' liy him w.is voiil, ri'inainliii,' In thr riiit.;ii Stalfs so loni^ afti r
was ilini'iisst'il I'litnot ilrriili'il :' Ihil, llrhl, that j I7.S,'! woiiM show his ilcti'i'inlnatioii to ln'i'oni"
lis till' statiilr iliH'lari"! him to lir an alien, ((//i/ 1 an .Anu'ricain'iti/i'ii, in wliieh ease, withmit rel'cr-
lii.'.i/ri'ili III' liiililiiiij liiiiil.i irilliiii till I'l'iiriiiri
wa< liv it ilis'ilileil from ilevisiiif,'. ir«i//i/i'' v.
Jlnnl'l, •-'IM.I. li. H7.
[Si'''.M \'irl.. c. -H, sinre (lassi'il. I
S., a I'iti/en of the Tniteil St.'iti'S, ralne to Ihls
I'riivliii'i' anil lioii^ht tin- I iml in i|mstiiin. He
(linl ill I'H:U, li'.niii;,' four sons, three lioi'iialkns,
(iiir liiiiii in tills I'nivinec. Two of these three,
the iitlier two having ilieil iiiiniarrieil in ISIi.'l,
; convey 111 to the |ilanitiir, who liroii^ht ejeet-
niciit : llelil, that thonf,'h an alien may t'lke
'iV <'nli\i'yanee, lie eannot |iass liy ilesecnt to an
iiL'n heir the lami so taken : that as a eonse-
"ni'e iiothiii;,' p.'issuil from .S. to his two sons ;
.111 the |ilalnlill' therefore took nothiii'^ hv their
|(iciMl. //■"•;» V. Mi-Iiriili (t III., "\ i), l>. ."i7.
Ill ejei'timnt it .■i|i)M':!reil th.'vt the lil.llntlll's'
aiieestors were allriis ; hul ; II' M, no liar to the
rreovery, I'J N'iet., e. I'.'7, s. !'_', Iiaviiij,' lieuii
iiasNi'd liefnre the aiieestors' death. Ilninrill it
I'l. V
//- ml:
rmm 1 1 III., '2'2 ( '
.Siiiiie of his ehildren were liorii in the i I'ljci'tmeiil.
jStati'.i, siiiiu' here; Imt they all lived there, and
(they all lirimjjht ejeetmeiit: (.hia're, whether
Itlliise will) were aliens eniild reeover under ('.
IS. t'. e. 8, «. !) ; Semlde, that they eoiild,
Ifor that elausu i.s not eonlined to aliens reslih'iit
Ihtie : (,>ii,i'i'e, wliethi!!-, under !Mieo. I\'. e. '21,
[A., Iiaviii;,' olit.'iimd a ]i.itent from the emwii,
jwiiulil he entitled to the heiielit ol that aet,
111 I'S'Ji,
I'SO.
, with Ills son
(who aflerwanls
eanie from the
Sainuel, ,-inil his daiiijliter II.,
marriid M., .a lliitlsli snlijietl
I'lilted States, ;iiid seltli'd ill Canada, all lieing
aliens, (In the 'JOth M.ir.h, IS'JI, the ( 'rowii
granted the land in i|iiestloii to .1. S. Neither
•I. S. nor his ehildren e\er took the oath of allo-
giaiiee. .1. S. died on the 17th May, l.S'.'S, and
Samuel ;ilioilt the litli Noxemlier, KSl'J: Held.
witliimt priiof [hat he had taken the oath ol that under the .Mien , Vet of I fS'.'.S, assented to on
all^'Uiice. I.iiitliiriiiiiii It III. V. Troir, \r,('. I'. ! nm, yi-jy^ ix-js, ,). S. was a I'.rltish siilijeet, for
«''''''• I It niiiiht lie iiri'suiiied that he took the oath
111 ejeetinent holh ji.artles elaliiied through one when he got the |iateiit ; and if not, having died
allies Siiiitli. Tin; defendants claimed umler ! hefore 1st .laiin.iry, liS,")(), the iierlod limited liy
(Hialli.iii, Ills elder lirotlier ; the iilaintill's elaiiii- : tin; .\et for taking such o.illi, he was liy see, I.'!,
'I tliiiiiigh .lohn, his younger lirothcr, eonteiid- , eui[iowereil to take and hold real estate : Held,
jing lliat .Iniiatlian, lieln;; an alien, eonld not i as to Saniiul, that not having t.ikeii the oath
Inilt. .lames, .lonathan, and .lohn, were all umler the Acts of IS'J.S or ISII, hi' was an
111 ill the iiriivlncc of New \'ork, hefore the alien: Held, aho, as to Hannah, that li;iving
I'.ilv of liiilenemlcnce in 178,'{, , lames aliout ! heeii a resident of the I'roviiiee on the 1st .March,
1771', •liiii.itliau two years after, their father lieing i I.S'JS, for seven years, she
I'.rlti
il.
klirillslisiihjeit. .lames and .lonath.an came to I jeet under see. •_', of the ;\et of IS'J.S, .iml als
Ilia in I7'.l'.', ami .lohn in \~\H. A eojiy of a
cliHiiiito the .'Vdministrator of the govennneiit
bf r|i|U'r Canada was ]iroduceil, cortilied liy the
plerk nf tin; l'',.\eeutivc Council, inirporting to lie
■igiii'il hy the three, one lieing a niarksinan,
pfcitlng that they h.ad come into the rrovinec
ibimt four years before, and "bad taken the
ly intermarriage with a llritish suliji;et, under
1-2 Niet. e. I '.17
10; and as eomiiig within
that
•!■ fi, it \'ict., c. 7 ; Seinlile, ]ier Wilson
Samuel, if an alien, would have had tlu; same
|iower to de\ ise as be had to convey liy deed : —
Semlile, also, [ler Wilson, .1., that the alienage
(if J. ,S. could not have been objected to in his
#1
71
ALLLTVION.
T2
ijr
lifetiiiio, i'xi'ci>t l).v till! ( 'niwu, so as to iiffect liis
title, anil not l>.v llio ("mwn unless deceived as
to his status : l^Uii'ie, wlietlicr 12 Vict. c. 197,
s. !'.», Iia-i any ivliv«inii to titles previously
aeiiuired. /I4aii objection in pro-
ceedings on a contested municipal election, it
nuist besliewiLi)articiilarly how the parties eom-
jilained of are aliens ; a general aliidavit of the
fact is insullicient. VA ;//;.'/ './■ r' llnvn -/{I'niiifi i:r ;v/. Pmlirell
V. Stewart, IV. \\. IS, 21. Chamb. Burns.
Where the voter was born in the I'nited States,
both his ]iarcnts lieing British Ihuii sulijects, his
fatiier and grandfather i)eing U. VI. Loyalists,
and the voter hail resided nearly all his life in
Canada: -Held, entitled to vote at an election
for the Legislative Assendily of Ontario. .SVo;--
imnil bifrli.w, Pl'iir-:, ]'<,/r,' 7 L. .1. N. S. 21.3.
— Kichards.
III. .Ml.S(KI,i,..VNE0f.S Ca.^es.
On an application to prevent certificates i)f
naturalization l)eing i.ssued by the Court of
Ceneral Sessions of the Peace, to C. W., ,T. V.,
and B. K., under 31 Viet. c. (id, P., the grounds
of opposition were, I. 'I'hat the time of residence
was not stated in the alHdavit of residence ;
2. That the certificate of the justices of the
peace, read on the first day of the court, did not
siiew that tlie requisite oaths of allegiance had
been taken by tiie applicants. 3. That initial
letters oidy were used in the heading of the aHi-
davits, and not the full names of the applicants.
These objections were overruled, /ii rr W'ett.f'rr
H III., 7 i- J. N. S. 3!).-(i. S.- Anlagh, Co. J.
Held, in interpleader, that the claimant, a
resilient of the I'nited States, having placed t!ic
goods here, would have been personally liable
to the jurisdiction of this court in any (|ueation
concerning them, even if he had not employed
an attorney and made an aliidavit to support his
claim. Ihiffiilo nnd Lah- lliirou It. IT. Co., v.
Hr'uviiiKjiftn/, 22 Q. B. r>t)2.
The prisoner was convicted upon an indict-
ment under C. S. U. C. c. 98, containing three
counts, each charging him as a citizen of the
Unite(i States. He was cliargcd with levying
war, and being in arms against Her Majesty.
The crown rested on the prisoner's statement,
that he w.is born in Ireland, and was a citizen of
the IJniteil States. It was objected that the
duty of allegiance attaching from his birth con-
tinued, and he therefore was not shewn to l>e a
citizen of the I'nited States, but :- Held, tliat
though his rluty as a subject remained, he might
become liable as a citizen of the United States
by being naturalized, of which his own declara-
tion was evidence. Ri'iiiia v. McMahdii, 2t! (,•.
B. I9r).
In this case, the charge being tlie same as the
last, it was shewn that the prisoner had declarcil
himself to be an American citizen since his
arrest, but a witness was called on his behalf
who proved that he was born within the Queen's
allegiance : -Held, that the crown might waive
the right of allegiance and try him as an Ameri-
can citizen, which he claimed to be. The fact
of the invaders coming from the United States
would be prima facie evidence of tiieir being
citizens or subjects thereof. Itnihio, v. Liiin-li,
2(> y. B. 208.
The prisoner being indicted under C. S. U. C,
c. 98, iind charged as a citizen of the Unitoil
States, was acipiitted on provhig himself to hu
a British subject. He was then indicted ,a.s a
subject of Her Majesty, and pleaiied autrefois
acijuit .• — Held, tli it the plea was not proved, fur
that by the L^tatute the oU'ence in the case of a
foreigner and a sul)ject is substantially different,
the evidence, irrespective of national status,
which would convict a foreigner being insufti-
cient as against a subject ; and the prisoner,
therefore, was not in legal peril on the first
indictment. Rrf/iKu v. jlrninilli, 2(! Q. B. ,3.S5.
Qurore, is a foreigner lialile to the insolvent
laws, being neither resident nor doniiciled in
Canada.' Mrl/on v. Mrliull.-i, 27 Q. B. 11)7.
The right at common law of an alien friend in
respect to trade marks stands on the .siinie
ground as that of a subject. Jkirk v. Kciimdii,
13 Chy. f)23.
A foreign administrator cannot efl'ectuiilly
release a mortgage on land in this province.
Payment to him and a release by the heirs are
not sutticient to entitle the owner to a certiticatp
of title free from encumbrances under the .V't
for fjuieting titles. In rr T/iorjir, 1,5 Chy. 76.
Where a person resident in a foreign country
dies pos.sessod of mortgages on land situate in
the province, the Surrogate Court of the county
within which the land lies has juri.sdiction ti
grant administration where the Surrogate Court
of no other county has jurisdiction. Jb.
ALIMONY.
See Husband and AVifr.
ALLEGIANCE.
Sec Alien.
ALLUVION.
See Water and Water Courses.
(3
AMENDMENT AT LAW.
74
ALTERATION.
1, Of Affidavits— ,SVc Affidavit.
H. Of AwARr>--.SV(' Arbitration AS n Awarh.
HI. Ok Bim.s and Notf..s— .S( f Bills of l^x-
( HANOE AND PrOMI.S.'50RV NoTKS.
IV. Of Deed.s— .Vc" Deed.
V. Of Toll Book.s-.SVc MrNHH-Ai, Corpo-
H AT IONS.
VI. Of Record— .SVc Trial.
VIF. Of Will— .SVr Will.
fire
AMENDMENT AT LAW.
I. Of Writs and Retirn.s.
\. Capias, 74.
2. Capiiia ml Rf-ipiwtliuihnn, 74.
3. Capias ail Safisjaririnliini, 74.
4. Wril.tof Siniininiis, 7').
,'). Extcut'ians, 7r>.
(!. Riliiriis III Writs nf E.ririiliim
Sheriff.
II. Addinii or Striking ovt Parties.
1. Plaintiffs, 7(5.
2. IhJ'iitlants, 77.
III. Of Pleadino.s.
1. Cnifrallj/, 78.
2. Varinnrr hetveen Erirhnre nnfl Alkpa-
lions.
(a) /)( Xamcs, 70.
(b) In Statement n/mi/x and yntfs, 80.
(c) hi Statement nf Contrails, 80.
(d) In Statement of Bomh, 82.
(e) In Records and Judrpnents, 82.
(f) Other Cases, 83.
(g) In Artin)is of Defamation — See
Defamation.
3. Adilinij Counts and Pkns, 84.
4. After Jiidf/ment on Demvrrer, 87.
5. OlhfrCasex, 89.
X. Miscellaneous Cases, 07"
.XL Partu tlar Actions.
L Ejirfinent — .SV'' Ejectment.
XII. Sek also the Several Title.--.
[.SV( t/ie Administration if Jnstiro Art of y.S',".?,
s, .'lO, and, C. L. P. Art, s. ,.',.V, irhirh now ijire
ahnn.il iinl'aiitiil /loirirofamindnn nj in ad riisi'.i.]
I. WlUTS and HeTIRN:.
1 . ( 'iipiiis.
A v.ariaiice lietweuu a writ anil cojiy in the
names of the plaintiffs was correutcil hy ameiid-
ing tiie former so as to conform to the latter.
Damer v. Hiislaj-^Blai-k v. Wi'jii, .") P. H. 35(;.—
Chanil). 0.— Chamb.—
Hagarty.
3. Ciiitiai lid Satisfaciendum.
^Vhere the emlorsement dircetcil the sheriff
6. Claniijiug Venue — Sie Pleading at | to lake bail for too large a sum, the court
Law.
7. Demiirrers—Sie Pleadinc; at Law.
8. l.enre tnamenrl nn i/rantini/ \cii; Trial
— See New Trial.
[IV. IssfE Books, 90.
V. Nisi Prius Records, 90.
1. In Kji'ctmcnt —Sec Ejectment.
|VI. .IinriMENTS AND Jl'DOMENT ROLLS, 91.
J\\. Verdict AND PosTEA, 93.
III. Incidental Proceeding.s.
1. Affidiirits, 94.
2. Uides, tirili r.i, and Summonses, 94.
3. |iearin,:;
that th(! time alloweil for a|i|iearan<'e vas a
reasonalile time, an aniendmenl was allowed
without costs, l)^y the suI)stitution of the form of
a sunnu'ins for a defendant without tlie jurisdii'-
tion, in lien of tin; form used. dra'/ v. O'A'.//,
7 1,. .1. IS.S. ('. I,. Ciiandi. Kohinson.
Where a plaintill' olitains an order to aiiiend
his writ of suiinnon--. the defendant is entitled
to notice of the aniendnu'Mt liavini; iieen made,
anil jirolialiiy to a copy of tlie amended ]>roeeed-
inys, before he can lie n'i|nired to aiip'/ar ; and
the |plaiiitiir is not hound to amend, hut may i
abandon his order, ('itni/i'n // y, I'lllil, '1 I,. .1.
X. S. -Jll. ('. I,. Ciiaml.. A. Wilson.
A writ of summons may, afti'r its issue, am!
before service, be amended on jira'cipi^ by sub-
stituting a new iilainlilV, witiioutan orih'r, and
on such amendment there is no necessity for
resealin,^', nor need it a[i]iear on the cojiy servi d
that any aniendmenl has liecnmadc. \\'iiiiliin;i-
lon V. 'Ufiiil/dii, (i I'. It. ni/„r, :>.'.) t). ]). iV.I'J.
••^er, als,., Xicholls v. Xicholls, .•} P. i;. 20!. j
p. :i:!.
li. AiUHNil (il; .STKIKINil (llT P.VKTli; .
1. I'fiiiiilijik
Where in assumpsit the wife of tlie pl;iiiit::|
was iniproperly joined i-lfold, (before tliii
L. P. .Vet,) that the jmlge at the trial couM n
strike out her name. ItUrhiiiiillrr v. l.'li. P.. til'-'.
Held, that the ( '. I,. P. .Vet, IS.")!!, (hicsiK]
authorize the striking out all the ))lainti(1's' iiiiii-:
ill a siimiiKms in ejectment, and siibstitutiii.
new set therefor, after the entry of the ri ir
for trial, /inhiiis-ui y. lii II — Viitlhlnili r v. I'y'.
!)t'. P. -Jl.
Plaintill' caused di'fcndant to be arrcsteij !■■;
tlii^ alleged sc<. "> consent to thi^ nanu.' of the iid'ant
liiini: so added as jihiintitl' in an action of eject-
nient wiiieli seems to be for tlie lattcM-'s liein-lit.
Name i'oved. 'I'lie jdain-
dfl' tlicn aiiplied to strikti out the nauH' of one
' the (hfciiilants : Held, that the anuiidnient
ttif-'iit he made, « itli e\).
At the trial, on objection by ilefendant's coun-
sel, that (Uie dcl'cndant had been impripiierly
joined, the judge, on jilaintitl's ap[ilieatioii,
struck his name out of the record ; and upon
defendant's eouiisel claiming the right to plead
in abatement the non-joinder of another party,
the name of such party was w itli his consent
added to the I'lcord as a defiiidant : Held, that
the tirst aiuendniciit had been properly made, but
not the second. Mi-Kn v. Jn/i I'l n/., V.'0 ( '.
I'. -.Id.
I'llder ('. I,, f. .Act., s, (l-i
defemlant improperly joineil in
tract m.'iy be struck out at the trial without his
consent, and even against his objection. I.idr
Siijii rinr Xiirifiiiliiiii i 'n. v. Iliiilliiit ii/., Jil Ij. H.
•-'01. See Iliir'ritl V. fliiiin/tninl ?ee also .l/.-/\'i ////-/i v. Van
S;i-k/r>; 17 (I I!. •J-Jil.
.\n amendment should not be allowed, where
the etleet of it is to make the pleading deuiur-
the name of a
III aetion on eon-
* »r
•41
79
AMENDMENT AT LAW.
80
»S
rable. Banl- of rp)>pr Coiimln v,
Q. B. 451.
Uu.ler the C. L. 1'. Act, s. '222, all aiueiid-
mcitts necessary to (luteruiiiie tlie real (juestion
in contntversy are imperative, without reference
to the character of tlie action or defence. Tlie
only point for the court or a judge to determine
is, whether they are so necessary, /inn/.- <>/' Mmi-
trnil V. I{,!/,w/i.
riaiutiDF sued as executrix on a bond made to
her in her own right ; — Helil, that she cmild not
recover, and nonsuit entered. Ilaii- v. Muni-
iiomen/, T. T. .3 & 4 \kt.
The plaintiff, having sued as administratrix, I
was allowed at the trial to amend by claiming in '
her own name, and the court held the amend- :
mei.t properly granted. C/iandii'iiain v. Smith,
•21 Q. B. 10.S. !
The several members of a firm being sued as |
indorsers of a note, one by mistake was called j
Cliarks Jones, his Christian name being H'lY-
Ikun : — Held, that the variance could occasion !
no diliiculty on the trial, the only question being !
as to the identity of the party ; and that defen- !
dants, if they desired to object, should have moved j
uniler 7 ^Vill. IV'., c. 3, to compel plaintilF to
amend liis declaration. Kflclnnii v. Joma, T> Q.
B. 4(J0.
Where defendant set up a deed as made be-
tween A. B, of the one part, and the Bank of B.
N. A. of tlie other, and when produced at the
trial it turned out to be a deed made between
A. B. and Thomas Paton, who was after-
wards stated in the body of the instrument to
be inspector of the bank : — llelil, a fatal va-
riance, and not amendable. Bank of British
Xi. rt 'i A nwrica v. Shi^rwuud, (j Q. B. 5.52.
To an action on the common counts defendant
pleaded a prior suit between the same parties for
the s.ame cause, and prayed an inspection of the
record, and it appeared that the plaintiti's name
in tlie former suit was Janie-i H'. Whyte, and in
the second, James M. Wliyte : — Held, a fatal
variance. Whijte v. Cameron, 7 Q. B. .'178.
Quicre, how far tlie declarations in tiie fwi'
suits varying as to the number and nature of the
common counts and the amount claimed, would
be fatal. lb.
The plaintiffs, by the name of the "Council of
the District of Brock," declared on a bond, which
when prtxluced 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, variance not fatal. Brock District Coun-
cil v. Bon-en, 7 Q. B. 471.
So where a bond was sued upon in the name of
the "Trent and Frankford Road Company," and
upon Ixjing produced was in the name of the
"President and Directors of the Trent and
Frankford Road Company." Trent ami Frank-
ford Road Comijunii v. Marshall, 10 C. P. 329.
Where defendant appears in a different name
from that in which he is sued in the writ,
and the plaintiff' declares against defendant by
the name in the writ, defendant cannot set aside
(b) //( S.'afement of Bills ami Azotes.
Wliere on an assessment of damages on a note
stated in the declaration to be for £40, a note
for t'42 was proved, an amendment was refused,
l)ut a \erdict allowed for the note as set out.
Bank if I'/i/ier Canada v. Crauford, 4 O. S. 301.
Wliere a foreign bill had been so declared ujion
as not to shew it to have been a foreign bill :—
Held, not a variance upon which a nonsuit could
be granted, liotie.-. v. Joseph, 7 Q. B. .505.
Plaintiff declared against defendant as maker
of a note, anil produced at the trial a bill of
exchange drawn by defendant, and endorsed to
rlaintiff :— Held, not amendable under 7 Will
v., c. 3. Vizard v. Gilchrist, 13 Q. B. 605.
To an action on a note against two defendants,
usury was set up, the plea being that plaintitl
lent defendants £200, payable in a year, and that
the note (for £250) was given therefor. The j
evidence shewed tliat the loan was to one de^
fendant only, and that the other signed the note :
j merely as his surety, and was no party to tlie '
j usurious contract : — Held, a fatal variaiJie
i Farley v. Oilhert et a/., 14 Q. B. 147.
After motion to arrest judgment on a note,
j which as dcclareil on was not negotiable, there |
! having been no defence at the trial, the plaiutilfl
I was allowed tt) amend cm payment of costi |
Martin v. WilOer, 9 C. P. 75.
Declaration on a note payable to G. or order i
Plea, non fecit. Tlie note when produced wail
payable to <;. or order, " for the use of M:"-|
Hell!, no variance, for it was declared on accorj' I
ing to its legal effect. Miinro - Co.t, 30 Q. B |
3G3.
(c) /// Statement of Contracts.
Wliere in replevin the landlord avowed foil
two and a-quarter years' rent, but proved il
tenancy for only one year, although the teniunl
continued in possession for three years, haWiigf
however, paitl no rent, nor made any acknoit
ledginent during the last two years : — Held, i
fatal variance on the plea of non -tenuit. ThonA
son V. Forsijth, E. T. 2 Vict.
After refusal at nisi prius, allowed in bantl
Lawrence \. Tindall, M. T. 5 Vict.
Debt on an annuity deed. Pleas of usuiyl
amended as to the sum and dates. Wrhjk vl
Marralls, 8 Q. B. 511.
In a qui tam action for usury, any vuriauJ
between the statement of the time of forbearawl
laid in the declaration and the true period il
fatal. Fruser q. t. v. Thompson, 1 Q. B. 314.
In a penal fiction for usury, after verdict iij
plaintiif and new trial granted for a vnriai
well in 1jm;1
81
AMENDMENT AT LAW.
83
bi'twocn tlio stati^mcnt of tlio loan ami forlioar-
' ^.^, .,^ |;ii,l ami that iii-ovcil, thu I'duit ivfusL-d
' aiiK'Hil tliii (k'l'laratiim tiy making it txirios-
witii till.' L'viduiii-'c. Friiy-i-ii. t. y. 'J'litun/i-
;•>■>
to
pom
,„„, 1 Q. li-
ill an actiiiii (Hi notes, tlie (IftV'iicu act upheing
j,^,„.y . JHeld, that variances in the unumnt
' as intLMuloil to In; lo;ini!il, anil in thu sum
Ucclaratiou on special agrecmont, aincndeil by
avuiiing excuse from pcrfonuance, insti^ad of
l)crforniaiice, of Contract. ''/,o7.'.v. .l/'7v'(((/, '.i'2
g. I!. .")8;{.
(d) /;/ Sditcincnt of Uniiils.
AVliere tlio plaintilF declared upon a penal bill,
and proved a bond witii a condition : -Held, not
a.sullicient variance to set ayide the verdict. Jh
It'irh fi- V. (Iraiif, Tay. tT.'f.
Tlie plaintill's, who had taken fr.jm defendants
a bond for the due performance of a collector's
duty, witli a condition in it prescribed by certain
was bound by the C. 1^. V. Act, h. •-'■J2, to j municipal l)yda\vs, declareil uiiou it as upon
The auicndnient v,-as therefore ordered, a conimoii money bond, withdut setting out
and a new trial gr.inted. Iliiil; of Muntrrtil v. the condition; the defendant plea,.:!rh-I Cuiihrd
at itod" as the excess beyond legal interest, were
I nnlcrial. '1"'"-' learned judge at the trial refused
Itu aim^'i"' '" ^'"-■'*^' ''''*'l'^^''"'' ili-'siring the ojiinion
[of tiie court :-llehl, that being an amendini'iit
[necessary for the purpose (-f determining tlie
I red iiuestiou in controversy between tlic parties
t . '
(allow it.
Itiie declaration, ami proved : Held, fatal. Shurt
Khihfc I), as hav-
ing jointly executed a bond ti) secure paj'inent
of rent by H., which being set out in tiie plea it
apjieared that T. was also named in it as obligor,
O' \V/7/ '"'*' ^''"' ""*' i-'-'^i^^'i'ted. It appeared that at the
j execution of the bond T. was not present, and
i defendant U. told the plaintilT that he could
Hie dtvlanation stated an agreement to pay to ; „„t, conveniently attend, but wouM sign it at
any time. T., however, afterwards, on being
applied to l>y the plaintill's, refuscil to execute,
and no objection had been in.aile by I)., although
aware of the refusal : Held, that the non-exe-
cution by T. was nil defence iindcM' a [ilea of iiou
est factum by II., as shewing a variance between
the bond declared on and that set out. S'liliiiij
lidllll < 'mil 11(1111/ V. l/il/llir.-i il (>/., \{') i). li. '2(iS.
ISut see ^'o/7;(/C((//<,// <;/' lliii-nii V. Ann . I'.. (i08.
sclilid not amend .again, and the jury found ' named' therein tlir'ected, and the record put m
the iilaintilV, adding that they believed the j evidence was of a tri.d before the Hon. h. 1'.
.•itiiick out to be ill the contract. The court ! Sherwood and others his feUow justices, assigned
by letters jiatent directed to him and others, and
any two of them, of whom he was to be one ;
Held, no variane..'. /'nnln;' v. Ildmi'h.n, -2 ().
S. 114.
In tresiiass for niesiiu prolits brought by hna
band and wife, alleging a juiiit recovery, thu
recovery in ejectment was proved to have been
the ilemise of the wife alone :- Held, a fatal
v.irianec. A^Jittm cl iix. v. KecMi; 5 (). S. Jj'J.^.
an action by a tenant against his landlord
wrongful distress and sale of his goods, the
of the action is the wrong complained of,
theiofore a variance between the contract
out in the declaration and that proved is
laterial. Ifo'iiii^oit v. Sliic'ih, 1.5 t'. T. ;!St>.
}-"
:'S
if
'A
....It-
83
a:\iendment at law.
Si
i!lii
11 1^
[4
rjlii:
On a trial )>y V'^cnrd, a variance between tlie
pleaclinj,' on wliii'li tlie issue was raised and the
recdrd iirodiKcd was amended, altlnmyli a trial
had lieen had on iither issues. LairrfWc v.
Jfiinlii!/, T. T. 3 & 4 A'iet.
Defendant iileaded a set-off of a judgment re-
eovered in debt on bond for t''2'-'.S l.")S. 3d., being
.i'JOO debt, Is. damages, and f2.3 14. 3., costs.
Tiie jilaintiil' reidied nul tiel record, and the
judgment ajipeared to be for the recovery of the
debt, damages, and costs, and also i'l.j I'ta. for
damages assessed on account of breaches of the
bond : —Held, no variance. Ijiiinrniiiii v. Uroini,
•2 g. li. 40'.).
In trcsjias.s for mesne jimlits, the variances
set out in tiie case, between the judgment in
ejectment pli'adcd and tin; on(,' produced, were
held fatal. (liirrhm v. \\'oo■■.
In an action on an award, the submission, as
declared on, nientioneil tluve defemlants, and
the award in reciting the submission oidy noticed
two, but referred to the rule by which the sub-
mission was made as annexed to the award, in
which ride the three weij|( named : Jield, that
the variance lietween the submission declared
on and that recited in tl.j aw.ird was immaterial,
as the :-iiliniis:'ion itself a;;reed with the declara-
tion. Iliih V. Mull,:, nil", l»ra. (i!!.
In tresjiass fur t diing good-', defendant justi-
lied as sliei'itl's baililf, under a warrant to make
of clefendant's goods a sum ivcovered tor costs
in case, ami the warr.mt iiroduced was for
damages and costs in assumpsit : Held, a fatal
variance. JJni/l, v. add a count for .ossadil
Hendermn v. Uiirpei; 1 Q. B. 528.
8.'5
AMENDMENT AT LAW.
M
A iipw count was added to meet defciiilaiit'ti
BPt-ott' .lefendant having leave to j.lead de novo.
Hom'y I'^'H, I »'. I^- <^hainl.. !t(i. -Macauliiy.
Under S Vict., c. 13, a ( 'ouiity ( 'ourt jiid^rr,
in a case sent down liy writ of tri.il, allowed
til'iintili' to aild a count excu.sin« tlie noii|iay-
i inent of a note to the maker, llie declaration
bavin" averrol its lire.sontment: llehl, nnanllio-
In an action for money hud ami received a
count for ne^^linence wan aflded at the trial :
I Held amendment ini|iriii)er, not licin;; necessary
I to determine the real i|ue.stion in eontrover.'^y in
I the fnit, lint the .snlwtitntioii of a new cause
I of action. //"»"'"""/ v. Ilnrun/, '-'O (,». P.. .'ill.
Held under the circum.stances Htated in thin
|ca-e that in an action for sei/inj^ two horse.s the
liudJe was jUKtitied in allowin.; a wa;,'i,'on and set
lof harness to he in.sertcd also in the declaration
lat the trial, defendanf.s counsel (d>jeetiny, Imt
liwlniittin" that he was not taken l.y surprise.
I' c'Miveved land to dcfenilant, " snhject to a
nort-ace," and witli a covenant for (|uiet enjuy-
nicnt''free ftom iucnni))raiices. I>efendant then
Semised the I Old to I . and wife for their respec'-
ftive lives, and I'. assi;,'neil to jilaintill' all his
interest tlieniii, to hold during the life of I'.
Ihc in"rt;,'a^'e( s, or tlieir assignee, hrought eject-
nent aganist liotli plaintitV ami I'., when the
blaintiil paid the amount due under the inort-
hl'c, and sued defendant for money paid to hi.s
ii8e :' Held, that he could not recover in this
lorni of action : ami the court refnned to allow
blaintitlto amend, hy adding a i'ounta.i as;-.'.;j'iH-e
bf the ciivenant to pay the -.norl-age coi.tained
tjie deeil from 1'. to deh'ndant. Snji/i r y.
^;.V./'r, •-'JC. r. 3(11.
Aihini;! /Vm(..] -The court will not allow an
^Linhuent liy adding a plea, when the eU'ect
Could he contrary to the justice ;>f the cause.
poW'// V. Ciitfiiii,' ^ L. .r. .")0. -('. !.. ('hand). ^
oliinson.
The en\n-t refu:;ed to ridieve a sherifi",s
.urety, who had snIVered judgment to go by
lef.nilt, after damages had been assessed against
Ti, liy allowing him to plead that he had already
Bill tlic anionut of hi.s covenant umler the
atiitc. Sn,ii V. MrDonoM, (i (». >S. 'J.-JS.
Where in an action against an cxccntr>ron the
Olid of his testator, non est fat.'tum oidy
J8S iileiidod, and the plaiiitifl" had a verdict, the
pint refaseil to grant a new triid and allow a
||ea of ]ik'ne adndidstravit, on the allidavit of
he executor that he. had adnunistered .all the
Bcts lirfore action there being no satisfaetiiry
KiWiT given why the])leahad not bci^n pleaded
(fore. Milhiii'ifdy. /),Ti(i/li; (i (>. S. .'W,').
|i\li]ilic;ition to add a plea of u.sury refused,
>r several applications to add other jileas
licen already refused. Pc / v. KuiijfiniH^ I
],. Ciinndi.. '_•■_'."). - Ihirns.
ll>( finilant agreed ti> jiurcliasc from plaintilV
"» liarrels of Hour, to be delivered at a goo "^iwcgo, and that defendant
refu.->ed to aceejit. Ilefemlant |ileaded that the
plaintiH' gave oiu; week '.i notice cif dtdivery to
Inm at Oswe;io on the 1st of .June : that he wa.^
ready to acccjit tin' Ijiinr there on i^aid 1st .Inne,
mil/ J'lir II riiiitiiitihtr linn IIh n nj'li r, but that
the (dainliir had not the Hour (ni that day,
imr III iilijl linn irilliiii ii n n^iniiihli linn lln ri nfli r.
It appealed that the plaiulill' had ijivcii notice of
deliveiy on 1st .liiin', Iml aft'i'W.mls, mi the.'ij.st
May, linding that tlir^ l.-^t .luiic wdiild fall on
Siiiiihiy, he iKitilied dcrciid.iiil iiol, to attend tlieii,
but on the I I til iii.stcad, Mini tiiat he liad attended
bdlh on tlie "Jiid and llth, and wa.i ready to
di'liver, but thfcnd nil was nut there to accept.
.\t tlu' trial tile t'liief .Justice refii.sed to allow
defendant to aild a ple.i, setting up as a del'cnce
lliat by departing from tlie lirst notice the plain-
tiH' li-ul put .■111 end to the I'olitraet. /Jrnii J.ill
V. Miii,\ !."><,>. I'.. •.'!,■!.
In an .iction im a policy nf in air.ince, de-
fcnd.ants by tiieir plea deiiicil the lo;s in Die usual
form, and under it desired to shew tiiat the
building had liei'U designcilly set lire In : Held,
that this evidcuci' w.is rightly rejected, .-md that
an application to add siieh a pje.i at tin' trial was
pro|pcrlv refiise(|. Mniiii \\ Tin \\'< y!i rii ,|.;;»-
/•./»-■, (':,., 17 <,». i;. i!i(».
Ill an aetinii on a Inuid given to one T., the
jilaiiitill', de.icriliiiig him as treasurer of the
municipality of l''ergn.-i, for tiie pi/rforni nice by
del'eiiilant I', of his iliities ,as cciliecdir : Held,
I. 'I'hat the iiegle"t of the eleik to deliver to
I', t'l" r dl before the 1st < >ct(dier, as directed
j by Iti \iel., c. IS-J, s. .",!l, fMiined no defence fur
j the sureties. '_'. 'That they were not relieved by
i an extensiun of time for the cidleetion of the
' rates allowed by the coniieil to I'. .'!. .\tliniiiiig
I .liidd /■. It. ad, ('; ('. I'. :{!;•_', tliat the, action might
, be maintained by the plaintill' a; treasurer,
I thongli the statute clireels tiiat tin' bcnid shall
be taken to the miiniiipabty. 'I'lie ease wa.5
refj'rred at nisi prius with tiie same ]Mi\\ir to
i the arbitrator a.* the judge had, to aineiul the
j jdeadiiigs, and under this he allowed ]deas
j to be added, raising the lirst ami second ipies-
tioiis .above nicntioiied, which he referred to
I the court witii the last. Per .McLean,.!. The
j last objection should not have been allowed by
j the arbitrator. Tmlil w I'l rrn, 'KXl W. (i-l!). "
Where a jilaintiir apidied to amend his decla-
', ration, tile defeiidaut was also allowed to adil
new ideas, but not, as a matter of course.
i /i'o;/-/-.s V. Ih.il.s, ■_• I", i;. i;;(i. C. I,. Chamb. -
I Ibibinson.
The judge of the County Court e,vii add \deaij
< in eases sent down from superior courts to be
: tried by him. Kimj y. (Hnxs/nril, II C. I'. .|!»0.
When an arbiliMtor, h,i\ ing |i(iwcr to .amend
the i)leadiiigs, allowed a plea to be added, and
the ]parties aU'ected, iiistisul of aip|dyiiig to have
tin; reference reyoki^l, ])rocied<'d w itii it iiotw itli-
standing the anieiidnicnt, which they contended
I wa.s improper and unjust, relief against the
award on tliis ground was refused, altiimigh the
court thouoht, on the m.iterial betore it, if the
same was before the .arbitr.ator, the aiiieiidment
ought not to have been .alhiwi'd. Smni v.
Coxi/riiri, '2 I,, d. X. S. II. I'. ('.- -\Vil.son.
The defendants, after an appeal in this country,
ami to the judicial eoinmittee of the I'rivy Coun-
cil, and after a new trial ordered, ajiidied to .add
{■^
87
AMKNDMKNT AT LAW.
Sj;
Ml!
! I'l i,i
w
1 "'':
to tlicir |il<'.i III iii>\ii- iiiililitril a )ili','i 111' {liiy-
meiit aiiil a M|»'cial plea : Hi'ld, tliat t'nr tln'
jiiir|inaf.s (if the a|i|ili(atiiiii tlio caso imi:it he
coiixiilcroil .iM tliiiiiu'li awaiti?!",' trial fur flic tirot
time: tint tin' jilrii nf |),iyiiii'iit iiiii,'lit clearly
to 1)0 alliiWL'il, lint tliat ttic sjiccial jilea was cal-
culatfil til I'tiili irr.i:;:i tiic |ilaiiititTs iiiiiUHcsfi.irily,
and, if a il'fi'iii'c at all. vva.i i-overeil liy tlic jilua
of never imlelitiil. V'/ii. < 'iitiiiiurrin! Ilitiih (if
<'illl(1i/ii V. T/ii < III ■./'/•» li'dihr'iil Cii., •_' h.
.1. X. S. Kl.'j. ('. I,. Chanili. A. Wil.s.m.
Where a jmlu'eat ni.a priiis, in ailefemled ea-'.e,
in wliieli, liuwevcr. im one aii|ie,ired for defend-
ant, Ind anienileii the record ex |iaite liy insert-
ing an omitted iilci and rciilieition : Held, that
the amindnient w.is |irii|ierlv made. I 'inii/ilnl/
V. A'i//i/', KiC. 1'. --'U.
The jilaintitl' h;iil sued out .m attachment
ngain:'t defeinhifit as ;in ali:;cii;idi:i;^' delitor, and
went down to tint '(Hiiity ( 'onrt to prove his claim,
upon a rei-ord shew iiiy interlocntory jud;iinent
.'iigncd for want of a |ile,i. JH fenilant.i]i]ilied to
havoaple;vof never indclitcd put on the record,
ll'"l/
V. ('jl'(i;i, -(!t^>. li. :!(;,'!.
On an a|iplicatiiin to eumpcl a r.ulw.iy eoui-
|iiny to arliitr.iti', the i(Uestiiin whether the
plaintill's land w,is injuiiously atl'eeted, under
the admitted facts, was raised liy return to the
mandamus, and foiiually decided in the plain-
titl's favor. .An arliitr'ation then tonk )ilace, an
award was m.ade, on which the plaintilV Kued,
and one trial was had, resulting in a verdict for
defendants, which was set aside after having
gone to the ( 'ourt of .\|ipeal. Mefendants then
ap|ilied to add ;i jilea that the l.ind wa.s not
injuriously allected ; hut the court refused the
a|iplic.ition. ]\'i |iK'adin^:s the pliintilf *
recovery wa.i barred, but, under the eircum.
stances, they giMutrd a new trial with leave t,-,
amend. Hk/.m,// v. IhtniiHiDi, (iO. .S. ;ipJ.
Where In trespass there were ."Several i.-siicr. in
law and in fact arising du sever.d Hpeeial ]il.n
going to the whole c ur-cof actinu, and the plaiii-
tirt', before the aieumeut of the deiinirrers, wput
to tri.il and as.iessed hi.i damage.) at X,\~ 1(1;,
having [iroved only one act rif tnspass, and tli
demurrers were aftcrw.iid.-- admitted to beagiiins'
him, the <'ourt refu ed to allow liim to f,et nsiil,--
his verdict, anu-nd his pleadings, and go tu i |
new trial. /'///■;•.' v. .V//- c.:, CO. S. A?,',i
Ainenduieiit uill not be allowed nnles,^ tlie I
circnmstiincc; ,ire \-ery special, and the ni'ifiin
[irompt. i'niiiil,r\. ilnniiltuii, I (,». Ji. ti.
.\fteran unsaicce.i.^ful dennirrer, the court will
siunetinies refuse to .dlow a party to amend ,iii,l
plead to the action. /lurnn v. Mt/!i'iii it nl .) j
(.>. i;. i<»i.
.An anieudiiicnt of defendant';; jileailing.i wisj
allowed after judgment on dennirrer against tliej
rejoinder, //•nni/'i^'i v. htirU, I <,». F-!~ WIW.
Wliere a defendant after judgment on deimirl
rer was .illowcd to amend on payment of ce-t .
which were not piid, the rule w.is ni.idc ali.uiliit
to I'uter the judgment for plaintill'. iS'//,.(,
V. All'Hi., v.. T. ," \'iet.
In tre; p.iss ipi. el. fr., after judgunnt ay,iiiit|
the ]ilaintiir on demurrer to his replication, tlie
court refused leave to add a count for a?isaiilt
//iih/i r.-ioii V. Ihn-jui; 1 (,>. l;. ,"i-J.S.
( hi the argument of a second demurrer In si
declaration it was suggested to the pliiiutilfil
eonns(d to amend, but he ilid not, and iiltr
judgment a'.;ainst hiiu, In^ was refused le.ivc- 1 1
amend, .'ihlrn'j) v. .l/.'/u /r./- , 'J Q. H. -10^.
Leave to amend pleadings allowed .after ji;ii.-|
nient on , ti::!
plea was held bad on demurrer. In the full'i
ing term he aiiplicd to amend by pleading It
same defence in an eipiitable form, in onlirll
]irevent the necessity for a cross actimi mI
damages, which he believed the plaintill' wniJ]
ne unable to satisfy. It appeared that tlio
complained of by defendant were eomuiittiil, il
at all, about three years ago, but they we;
positively denied by the phiintill', and defomk
h.id never sued for them. The .aiiplicatiuii m
refused. Kdli) v. Mouhls, 3 1'. K. 'JOT.- (}■ 4
S8
II tlc'clillM-
, ti) wlii'h
tlio (ll llll
iv)ilii'ii t.i
iliimirrcr,
|lll'ilS, 11"
the ('(im-t'
■ |ilaiiitili's
u: cirriiin-
\\.\ l.-S\lt':; 111
HM'inl Jilrn
il till' I'laiii-
irrei->, went
t Cn l(l:\
LISS, mill til
:,(> liL' iigiiins'
to Eii't n?v\'
HI. I (.y tu 1 I
1 iiiili-'s.i the I
tin' niotiin I
r.. ti.
Ill- I'liurt v.i!!
1 aint-'iiil aii'l
<.(;) '' "'., ■!]
ileiuliiiy;; w.is
r iit;aiii^t tliej
•lit I'll ili'imir-|
iiciit of eii't.-,
m.nlc iilc'ilut:!
itilV. S!:im,i\
• nn lit iigiiiiitj
•|ilii.'iitiiiii, tliij
it I'm- assault. I
li'iimrr.T t" i|
klu', \llililltllt;
|iot, ami a!t-tj
}. v.. 101.
I'll al't^'i- .i\;i''.|
[iv.-< tlicrfl'ii>;i:,
]iul'finl;int v'A
Is. /'i/'/V'iv.|
laiilay.
.(1 on ikiiiuj
I'liilaiit oil ti.-i
to reply 'J
Its lifiny fe|
Ifiii-iiiitniir
|ry was i."iu>'
l!Si;:i, tl;:
n tlio full"* I
pli;ailiii,i;li.|
11, ill m-iUrll
liss actiini v:f
llaiiitilV W"»lj
that tho iv^
Jooiiiiuilti-'il, ■
lit tlioy MB
luiil ik'fciiilcl
IpUcatitiii ir^l
207.- Q.I
m
AxMENDiMENT AT LAW.
DO
O/h
her ( '(i.eeaini'
A Wi
Aftir i.^suf ji'iiic' "" ""
1 till
il.
Ill il iieniiaiieiitly iiijiircil :" — Hrlil, that thfi
[triiil. the e.mrt i
Ihi'.
t iieiuiitteil tlie |i!aiiitiir tn a;iii
, ! aiueiiiliiieiit wan jiinjier.
(II, ,
V. o'di-iiiiii, \'i
(lee
aratiiiii,
Chiirrli V. linnih.irl, !»ra. •ICJ
I )t avow
|e. t. ?, ^■i«■t•
riv in replevin. TIihiiiiwik v. /Vir/////,
Tlic teriii--
ifaileniifle in an :'.vii\viy in r
»'. I
:;i;i
A pte.x h r. in;; hecii lieM hail mi ilr
fo
iniiy
leil at nisi jin
I.., I.I.
(ill Vlll
Siiiltli,
want iif an alie^jatiuii "f nntiee, iii> n'lj.'-liitii vol
nil^iil (III liili.r ::iil. : Flchl, that a;; it wa.-. iim-
Il Q. B. 'Ml.
If (leolar.ition fur inalieioii.; imi.HNiiti
ha
lile th';. )il.iintitl' hail hail notiee, i
Icfenitant
(
ititenie
l.ur V.
11 alliilavit t" that cH'eet slinuld ho.
itiiil, witliout jiaying eostii of tho
nt I if tiie (Mwt.-j of tho
on lilin;
allo\\eil
ari,iini( lit, Imt on |iayint
nt of court where inilietnieiit tiiul. I'l^'y of the trial «liieli hail )ire\ionsly taken
P,;,ll.lfi:i<>,
K. T. a A'iet.
plae;
Til.
iiii/i-.m V.
/,' ■('•/(,
('. 1'. III.
Of
of los.^ of
ilcelaratioM, hy incertinj; a speeial aveniunt
III ai
1 ai'lion for llowin^ li.icl: w.it
tor, on an
honil, after the faet of lo.is foimil hv : olijeetioii liy ilefcnilant as to the right,
riliet. Kililiiii" v. li'i.i.l;/, T. T. ',\ k -1 Niit. i iileailiii;;, to recover cxeept f
till
lacking
Of iilfi.i I
i-totr
iV elaiiiiiiv.
bain
Of ci|i
Jlcgiiig _
Bade hy I'l'i'i'
Tiiii'ii ' '
it ihle ]
il iif tl.ilt, 17 (^ B. L'.V.I.
lea, to ae
il with
.Sir
II
rtaiii lejiresciitatioiis 'to have been
titV
, I ■.,11 III ir 'I II III'"" v
a^eii
A
t. Tlir <
nil i/riiiiij, '21
ii'li,,ftil;,i)l iif
water as fo interfere \\ ith the working of jilaili-
titl V, mill, the iiiilgi' iilloweil an aiiieinlnifciit of
the ilei'laration, .so a.i to tent (ho right of defeii-
ilaiit t
o overllow
an\-
poili
if the land.
•J7 (>». B
Bv r.tn!;i"iy
lilt count in Coiintv Court suit,
me
nt ohieetion as to jnrif;ilietiim.
/•V/-.S
.1/7/1/'//',
\inoih: V.
JwyiiiH".
.reimler in ileninr
P. li. ii;». ch
ri'r allowed to lie iiddcd at
n iini! ;
I',., nil, ,11 V
Fit.
!"■
• Ill, I (,t. B. '»7y mistake demurred to the
ilication to his lir.st plea instead of his second,
that upon the sccoml plea no issue was |iiineil,
t.'etai-ide the verdict and allowed an
jllllKllt. /
tl
( /'/■-/ V.
(.'
II iliiwcr
le ileinani
I hef,
(i>. 1'.. ItiS.
re action was dire
to the lenanl a.'i tenant of lot .", (the right
iMfcndant did not olijeet that thin v.a.i no'., tie
re.il ipartioii in eontrover ■y, Imt merely ir.si.-t'd
he could not then proceed with the trial, which
was tin n upon ]iosti)oneil. Hal: o a[i|ieai'cd that
there had lieeii several trials many years before
between plaiiilid' and other parti's, in which
ilaiiia'.;es wtw claimed for (lowing \>:vk on the
land
as on till
denied by defeinlant that the ipicstii
previous trial of thir; ^alit was the ri.uli
il it wa.'i not
the
aiit was the riijlit to ovcr-
ow
the land at all.
at th"
appliei
there
that the objeetii
niailo
Hid trial, when the ainendmeiit wa.i
lor, had nevi
bef
ore raiseil
thoiigl
I been three cnlries of the rieord fr
trial and (wo lefcrcnees to arbitration between
tlie (ir.-l (rial and thela!-t entry of the record : —
llel'l, that the ;inii'iiiliiicnt had been properly
lot) Imt in it, and in the declaration on the r
Ihe |)renii.«es were i
ma
lescribed as lot '
'cciinl
a ilc.scri(>-
,011 wa.s ho-.vcvcr, given in
both bv inctcs and
iil^, which shewed plainly what lot
Btillilt'il.
If B;ii.t lot -J.
nei
ilea lie
d till
husliainl s seism
The tenant at the trial, though
le nii|ioseil an aineiidmeiit, admitted that he had
lot lii'CU miKlei
1 by tl
tak
Held, that
heaiiitMiilment was properly allowed. Mnlln
\i,iii,«-ii, I :!(,». I'.. ;i."ii.
The jiiilgiiient was or
f'.iir, till
nth, ill
I.'.
Wiilllirhl,,,, 18('. I'. IS(».
In plenling the' general is.aie by stitute, any
st.itnt'- relied upon (or the defence iiin.'t be
a; well as that by
I'liit where a statute
re I err
•'1 t'l
I'l
tl
le iiiar;'iii,
wlinli . iieii piei is allow
been omitted in the ('oniity ( 'oiirt, thid
court, on appe.il, directed the court below to
liiend by inscrtin;; it. \'iiii XnU, r v. Tli' /iiijl'ulit
.[■ I.iik. Ill
lered to be arrested,
laintilV was allowed within o
chambers, to add the nc
lie
cessarv silg-
BStiniiis to the declaration under the •J17tli
ectioii of the ('. I,. I'. Act. Such amendment
/,'. ir,
IV. Issci; I
(A B. .'.81.
>(IOK:-
Issur
.f a lb
neiiiled, by inscrtin;,' a Migge ,tion
eision on ilcniurrcr,
Wil.-liw (>n.
•J!) (,i. 1!. 171.
it allowed unless the iilaintill', on alliilavit,
hews reasonable ground for believing
Inal ikcision of the suggestion will be in his
pnniir. Kiirlilinlj'i r V. /I'o.w, II (". 1'. -11)7.
: AVlii re ejeetnicnt brought under the old ])rac-
iii bSkS had been stayed for security for
(its, ami the demise Icid exiiired nine years
I'c, the court refused an amendment by eiilar-
ng tlui term, which would have deprived
tfiiiilaiit of a title aciiuired under the Statute
' Liiiiitatioiis. Ihii' d. Dull \. lii-iuull, '2\ i).
■m.
[The jiiilge at the trial would not amend by
yivi'itiiig ;ui action of case for injui'y to a
crsieii into one of tresjiass, and the court
ifusoil to interfere. Emrivk v .Siillirnii, '2'i ^i.
10.1
ll(
in a case iiroiie
■r to be b
;lit down to
that the i tlie ('iiiinly Court by the l,aw Itcforin Act of
IStiS, where the entry under form A. was omitted
111! the issue
book.
but notice of trial had
been given for the ( 'oimty ( 'onrt, that the omis-
sion was not a ground for setting asMe the
issue book and notice of trial, biiL the jilain-
tiir would be allowed to aincnil on paynicut of
uost.s. .!/.• A /•///"// V. /■Jllioll, !l I.. .1. N. S. 259.
— C. I.. Chamb. .Morrison.
\. \isi I'llMs l!r.rol;i)S.
A ri'cord w.as auiended in matter of form, after
an a\ipe,al to the King in council. Hvirl.iinl v.
Tiili r, 5 O. S. 500.
'"■'■ Nisi prius record .'illowed to be withdrawn , ami
111 ail action for a.ssault and battery pliiintifl' | .scaled before jury sworn.
wta allowed at the trial to amend his declaration, I T. T. 5 & G Viet.
Mrljian v. Xvrmii,
I ^ 'j'fl
H
AMENDMENT AT LAW.
92
i! !
I ^Mi
Ameuilmeut in jurata of nisi prius recorrl.
fJoe (I Corhi/t v. Sjiroiilr, K O. S. 431 : Dor il.
CrooH'ti V. CnnKtiiiiii-!, | t^. R '_'.">() ; Smith v.
S/(,(rn; iH). B. -'().'
Of rccnnl iit nisi priua, liy tiliinj; up thi^ ]pni|i('r
flay iif nisi (ninn, cannot Ito niailu after jnry
called, tlioii-li not n\vorn. />ii' d. /Iniiitr v.
Bun/, S (.>. K it.
The court rcfnscil to net asicle a rcioril iHiiuisc
the venire had not liiiii in fact anicnilcd, when
it aj)|icarod that an oi'dcr for amendment liad
been j;rantf'd .mil phu'ed in (he mar^'iii of the
reconl, ami that the defendant had attended at
the trial and j;one into his defence. Aniohl v.
/fi'l'lhi.', I I". K. -'Hi. I'.C. Snllivan.
Where a ,inil;,'e at iii;;i |prin-i, in a defended
carsc, in wliich, however, no uric a|i|ic,ired fur
defendant, hid amendeil the record ex parte, liy
inserting an omitted jilea.'ind rejilication : Melil,
that the amendment was properly made, ('"iii/i-
-V//v. Kniip, KM'. I'. '_'M.
I'laintifl' \\:i"< ordered after verdict to amend
tlie nini print record l>y adding in,sne.-i in law
which had lieen omitted, (/nnit v. I'tihif i\ '> W
1\. 301. r. ('. I. Wilson.
The Law Iteform .Vet of lS(kS, ». IS, iinh-H. .'!,
enactii that it nhall lie comiietent for the parties
at a tri;d to con.sent that tlie notice^ for a jnry
fchall lie w.iived, and the ca.se tried liy the judge,
"and to endcir.se a meniorandiim of sncli consent
on the record ; and thereiiiion" the jnclge fli.dl
try, &e. 'J'he plaintitl' had given notice for a
jnry, hnt at the trial the counsel on lioth fide;;
waived it, and recpicstecl tlie jndge to ti-y the
case, which he clid, and found for the }ilaintitl',
but no memorandum w.is cndcir.secl. On cilijec-
tion by the plaintitl' tn the judge '.s autiiiirity to
try : — Held, that the record might be amended by
the judge's notes, which wt ited the waiver and
consent, and the endoi-.semcnt of the meinciran-
dum macle nunc pro tunc. U'l/rut/ v. Ckih/iIx II,
31 Q. r3. .-i84.
been pleaded, without notieiug several other
special ploan of the Statute of Frauds, /foi-hlm,,
en pi
Bciali
Hi'lirJI, o O. S. 3I!».
Where in delit the plaintitl had a.-sc-^fied mnrt-
damages than the declaraticm warranted, ami
had entered judgment for that amount, a.i it m
assumpsit, and issued execution.s sonu' in debtaiiil
sonic in assmnpsit, an ann'mlnient wa.i allowci]
by reducing the daniage.s, cm payment ot cilsIa
.Irn-lll V. /•i„r,ll. M. T. •_> \ht.
In clctit on licind, Ih'' plaintitl' entered hi., vi i
diet ;is if in clebt on .simple contract, ancl enti rtil
jucjgnu'nt in .i.ssuiniisit, and i.^sued a ea. an. n,
debt, on which defendant wa.s arretted. Tli,.
court set aside the c,i. sa. with co.''.t.'>, and allowcil
plaintitl' to amend on payment of co.'.t ;. /v//,.)/,
v. Iluiiii.hwi, M. T. 3 Vict.
.'\w.ird of venire amended. WliUi lum \. l)i,r'„i.
■■oil, !• (,t. K .•i34.
.Iuil;;ni''iit roll anu'ncled by inJierting the ijiit
of it! entry, the amount of taxecl costs in th
eau.ie, aticl the; aggregate amount of delit anl
costs rccovcrccl in the cau.se. IVa/l.-i v. I.llll,
li'iiir, V. Liiii',/, (i I,. .1. L'3;?. ('. I,. Chinilj, '
liiiliiniiiii.
VI. .JniiiMKsr.s a;.I) .lim:
.r i;.
the
A judgment roll was amended by addin
costs. Wii'jht V. Liniilill, Tay. .'{04.
In a judgment on a sci. fa. .again.st an .idmin-
istrator, the name of the intestate was .iniencled
so as to correspond with the original judgment
against him. H'illnril v. Waolnitl, l>r;i. L'OI.
To delit on bond setting out the condition and
as.signing breaches, defendant craved oyer ,ind
demurred, and the plaintitl', having succeeded
on the demurrer, entered judgment for the
amount ',i, ,>„/., 7 r,. .). -208.— P.C.— Hichank
One of (he defendants, hJilniinnl M. eornctlv
ctyled in the wummons, was by nii.stakc iiamtil
in the judgment roll and executions EihranlM
Held, aniendalde. M, I;
macle absolute a rulj to enter a verdict for di. ftc- 1
dant. Six terms afterwards the plaintiff' uiovtl
,to amend the judgment by granting a new (ria!,
on attidavits that no leave was re.served below ti
enter such a verdict ; but the court retn.sed (,,
interfere, /tnhiiisnii v. Ii'nni'ii , "JO (}. B. l.'70.
rpon an action on a bill of exchange iig.iiii;:
(h(> drawers ancl acceptcirs, the phintitl's mi tli:|
I'Jth of .lanuary, IS.VS, entered a joint judgimiit
ag.'iinst all the defendants. Suli.secpnntly
was arrested on a c.v. sa. ancl discdiarged, ami tli' I
plaintiH's, upon an action afterwards briuii.lit
against one of the other defendants, to avoiilanv
dilhcidty that ndght arise by reason of tb I
joint judgment, aiiplied to amend the juclginentl
roll by making it a several judgment again.st tk I
defendants : Held, that the application, wliifli
rested entirely upon the discretion of the ccuiil, I
not on any powers of amendment eonferrccl l.vl
the('. L. I'. .Act, was too late. l/iuiiiltnn \
/folronili, 1-2 C. I'. L''J!).
.ludgment in an action against executors, w!i
pleaded only iiaynient, having been by niL-itakr
entered and (execution issued against defencLiiiti
as executors to be levied of the goods of testat'?
in their hands, et si non dc lionis, propriis, (litl
judgment ancl execution was, under the ciroiiii-
stances, amended on ])ayment of costs, and tlif
li. fa. lands set aside, leaving the plaiutill's to
02
t>ral otlipr
liorlilnvi
>sRe(l mnn-
intuil, iiml
it, a.i il 111
II (Irl)tanil
[ir\ iillfiwtil
t lit Clint 1.
rit lii.i vir-
iiiil entiidl
II ca. Mil. il:
r.tf.l. Til,
mil allmviil
t.;. EilUmi
,ny. lJ,"ii,
Hnliiubnii.
|t, the (,t. li
ict for (Icl'iii-
liiiititi' iiKivfl
r il iif.'\v tri;i!,
■veil lidinv ti
t ri'tuscil t '
>. B. -JTO.
liingo iij^,uii.!|
liiitiiVs nil tli:|
|ut ,juil;;iiitii!
Huciitly I*
i-f^cil, ami til'
[irilj liriiiijilit
ti) avniilaiiv
lllHOU 111 tll-
hc juil^inHi;
I aj^aiii.'t th; |
|[itii>n, wlii'ii
)f tlic I'liiirt,
■Diifcrn-il I'V I
\lliniiilliiii *
RCUtorn, Mil'
l\ hy iiiistaktl
It (Icfouiliinl.'l
lis of tcstllt"!
llHoiiriii', til!
tlic circmnl
bsts, and tilt
Iplaiiitilfs tf'l
93
AMENDMENT AT LAW.
94
hy rt'iuiciiis;
\. witii intiivst ami slicrill'M
■take out a new writ against tluffinlauts' lands.
iPm-ii;,' y. H'lil"!'!! '' "'•. •'< •'• !«• -•'<•
■ 'I'lie iilaiiititt' liaving declared against defuudaut
latt txcciitrix, and o'ltaincd jiidgincnt hy default,
Ibv mistake entered it and issueil execution an
laLMiiist lier in her own rikdit, and on discovering
Itlii' error iihtaiiied an order to amend tlie judg-
Imeut roll and ti. fa. no as to eorresiioml with tiie
lileelai.it inn. tlnimition to set aside this order
at tlie iii-'taiice of other judgment creditors of
Llefeiiilaiit a^ executri.x : -Held, any fraud or
icolhwiii" hetweeli the plaiiitill' and defendant in
Ithe !4iiit heiiig denied, that the apijlicant.-i had
, ijirlit to prevent or interfere with such amond-
■uieiit? and tiiat the fact of their judgments being
luiikiinwn to the judge when he made the order
n-^ imiuaterial. MrliKi'l.i v. Xirlmlh, .1 1'. I{.
01. (^1. li. .See also .Ui'iii v. S/,i,rf, I 1 ( '. 1'. 4;)0.
\'|l. \'KKIt[( T AM) I'usrKA.
A verdict taken for the penalty of a bail boiul
ended by the judge's note.«,
it to the sum endorsed on the ca.
fees. Cil/iii/liir
y. Slrii'inilH', I'l-a. l.'iS.
Where there is a general verdict for idainliU'
hu .several counts, one of whicii is bad, but it
kppears tlie plaintill elected to proceed on a good
UHiit at the trial, tlie court will allow the ver-
liet til he amended after motion in arrest of
Uih'liR'iit, without co.jty. (loiili/rlrli v. .l/i'-
5(,«;;ii'/, •-'»>• •^- -'I-'-
,S() where the evidence was appliealile to a
ciiimt only. Bntitlii v. Ihu-liini, '1 (t. S.
|14 ; Cliiiilinrk v. Mi-P/iir.^on, •_> (). H. ;{7!).
So if the evidence at the trial apply e(|ually to
be giiiiil and had counts, the amendment may
made. liiililiriii ip t. v. Hi iiilir<,iii, 4 Q.
3lil.
But where, in ca.se for waste, the lirst two
ounts were for voluntary waste, and the fourth
1 truver, the third being for permissive waate
ly a tenant at will, an application to anieiul the
ostea hy entering the verdict on the first,
oml, and fourth counts alone, was refused,
idence having been given on the third count.
^riiiiiiiioiiil V. Cirtliin:, T. T. 3 & 4 Vk-t.
Where the notes shew that the verdict has
en erroneously entered for the plaintiti' on
oth ciiunts, instead of for defendant on one, this
ay lie amended by the judge's notes, ('iti/
aid: V. /i,v/r-, 5 Q. B. (i3;i.
I Where a verdict has been erroneously entered
I line eiiuut, the record may, at any time after-
tan's, by leave of the judge who tried the cause,
) altered, and the entry niaile on another count.
J/,„„vr, Biiijil, 15 1'! P. :^\'i.
I The court will amend a pnstea by the judge's
ptes, and a judgment by the postea, after
pial allowed, and reasons of appeal assigned,
be vcidiit being general for the plaintiti' on
ttiits reserved, and the postea franiud as if the
Beral issue only had been pleaded, without
tiling several other special pleas. Hochh-au
.llul,i:ll, 2 O. S. 31-21 ; Jonlnii v. ''«//;•, 4t^ B. 5.1.
Where a verdict wan taken by mistake (or
t'lOO too little, and levied umler execution, the
court refused to interfere, tlie defendant opjios-
ing the application. '/'In- limil nf I'lijnr ('niiiiiln
V. Curhrlt, •.'! (^. 15. (!.").
Where by mistake a verdict for a certain
amount is entered on the record, and the foreman
of the jury, before the jury separate or leave the
box, points out the erroi, the judge is right in
correctiiii,' il. Mum-'- v. limiil, l.'t (_'. \'. ol.'J.
\lll. Imikkn TAi. l'HO(i;r.i)iN(is.
1. Ajlhliirll-i.
Amendment allowed by insertion of names ill
jurat of two persons sworn to same allidavit.
/■'i.i/ii-r V. Tliiiiiir, ."> (I. S. ."il3.
In Christian names of ]ihkintill's in aiiidavits.
lii,M- V. CiiiiL-, 1 (»». I'., ."i ; Uriml v. '/'iii/l,ji; '_> if.
H. 407 ; /liiiiirliiii,,/, V. r,(.v, | f. |{. '2\n. l\ ('.
; - Richards.
2. /liil..< Oi'i/,-
iiiiil S'lDinihiii.^i
Ihile for costs incorrectly intituled, amended.
liiiZ/y. Ati-Knr.li, T. T. TVict. P. ( '. Macau-
lay.
In intituling of rule nisi in the cause. Uull v.
Miiri-iirJi; I Q. B. 4I'_'; Hililinl v. Ju/ui^full, I
y. B. 40;{ ; (n-iiiil V. Tiii/lor, •_' (). B. i07.
Where a [larty takes out a foiirday rule im
the Wednesday before the end of the term, and
neglects to serve it till Friday, the court will
not allow him to amend his rule so as to make it
returnable on Saturday. II nut, r v. Tliitrt/'lf, 4
il li. 170.
The court can amend a nLsi prius order of
reference after it has been made a rule of court.
/.((//(•/V V. Riiy.i>-ll, I l*. H. (ir..
Where a suninioii.: to pay over was argued
on one day, and jiulyinent deferred till the next
day, when the ^-ummons was made absolute (the
garnishee having died during the interim) on aii
application to set aside the order, on the ground
that it was nude after the ju'oceedings had
aliated, by reason of the death of the garnishee,
leave was given to the judgment creditor to
amend his order nunc pro tiiiic, without costs,
the delay being the delay of the judge and not
of the party. Wki-iI v.' I'miro, it L. J, 244; .3
P. H. 210. --C. L. fliamb.— A. Wilson.
Of summons and rule, in the reference made to
papers tiled. Ji,' Umioit, 4 V. P. 2:i". -Ohanib.
-A. Wilson ; /// /-.- Alh-n, 31 (^>. B. 458.
3. (>fli:-r M.ifter.'i.
Defendants had gone before one Allan, who
was bona tide sujipojed to lie a cominissiontr for
the county of Lennox, ;ind acknowledged a recog-
nizance : -Held, there wa.s no cstojipel ti i prevent
the defendants from ili.-piiting the authority of
Allan as con«nis:-ioner, and that the court would
not favor an amendment for the purpose of shut-
ting out evidence, and by estoppel preventing the
truth being known. Miict'drhim: v. A lluii et al
a C. p. 49(5.
I: »
Vh
i 1
r
•l^'kiJ
00
amknd:\ii-:nt at law.
'jc,
m
A bail )>ii'<'(< ill M'hii'li tlio iibiiitiir oi'ili-fi'iulaiit ^
is iiiciiriri'ily ii:iiiit'il iirty I*.' :iiiU'iiik'il willi tin'
riiiiMriit (p| U'lf liaii. I>,i',ihll w .hnn- ■^, '^ W \\.
I'.l,"). I'. ('. .I..1US.
It tliiiMlj;li lili«t:liii' nil ;itt(ii !H V lie iliii\ iliil
an I'l'i'iiiicciiiM liill, liu may liy H|K'>'iiil a|i|ilit'atii>ii,
nllc« ilij; iliMlly linw till' liliMt.ll.L' ll:is alifU'll, lie
alliiui'il til aiiiriiii it III' lUlivi'i' aimtlu r ; liilt lint
of liis own null' mot inn. /// Hi l>iirii, I l„ .1.
\. S. 'Ji:t. ' '. !.. Cliaiiili. li'ii'lianlM.
A iiiitii'i' 111 acliiiii til a jiutii I' III till' luai'i',
inlitnli'il in lliu wioii^' t'oiirl ; llilil, imt aiiunil-
ulile uiiiliT lilt' Ailniiiii.ttiatiiiii ol' .liistii'u Act,
I87.'». M.'Cnin, V. r<,lrii, 10 l„ ,1. N. s. lo:.,
('. I,. Cliaiiili. halt.Mi, r. r. ,i /'. j
'I'Ik' I'i'latiiiii, in a riiiiti'stt'il iuuiiiri|ial I'll! limi
I'asi', oinittril til state tiiat tlii' li lutm' wa-t a i an-
ilidiiti' or Mitcr. lint tlu' tai't was statnl in mii'
of till' alliilavits liU'il : llclil. aiiirliilalili' illnli'l'
till' AilniiniMtiatinii iif .Instil'!' Ait, IS7;!. Hut'iim
.r /•-/. 't,< of tlio trial, till' rulf t.,
mt aniili- tlio \viilii't, ami tlic a|i|ilii'.iliiin i,,i
li'a\rtii anu'iiil llUfii'im \, '/'/ir t'lu/ntriiliiiii „
III,' I 'if, I,,,- r.ii'uiila, o'i,. ,1. 4\. C. I,. Cliamli,
iMaiH'i',
Wlii'l'i' till' |ilaiiitill .'.liiilii'il to alni'iiil Ills il,.,
I'lai'.tlioii, till' ilifi'iiilaiit wart alttu ullowoil to ai|i|
iiL'W [lira:!, Imt not as ainatti :'of ihiii'h.' A'k;/,,', i
\. /'i.i/.s-l', II. I.'I.I. I liauiLi. Koljimiiiii. '
Wlii'i'.' ail iir.':',nlaritv whh trillinj,', hiu'Ii a.s ai.
(iniis«iiiii to lill ill till' ilati' of tlio I'litry of jn,!
nii'iit fur ilrfanlt, an ami'iiilnii'nt was alluui i
witlmilt i'int'<. J);inli V. iJillllI, I I,. ■]. N.
•j;i!>. ('. I„ Clianili. Ilii'lianlx,
l.\. I'nM rni:.
I. '/'i rill ' nil il/luir'iiii/ .\ III' hi/llh III,
II a lU'i'laiatiiiii Ih' iliawii up in a .'liivciily ami
ciirt'los.'i Ktyli', till' I'otirf, altiinni;!! r\|ii'i'ssiii;; an
o|iiniiin ill fasiiiii' of tlii' |ilainlitl un il. iiinri'ri', will
fii'i|iniitly iliii'i't liini to anii'inl .lillmnt I'o.st:).
Miir/ilii/ V. Hiinili'iiii, •_' (.). \'>. '.'lil.
III ti'oviT for a waj,'L{on lliu iilaintill' olitaiinil
li'avo to aini'iiil his ili'ilaration at iii.si jiiiiis, liy
limiting,' Ill's artioii to two of its v. IhiIs, Imt liiil
not ami'iiil, ami );iit a viTilirt. Tlii' (oiiit, mi
^'I'aiitinj; a nrw trial w Itlioiit I'osl ^, against w liiili
no lansi' was slii'wn : llulil, tli it tin' aiiu'inl-
uit'Ut slioiilil lia\t' liiTii inaili' oiilv on iiayiniiit
of fosts. ,i/i/i/;// V. cii'ih-i i-s, i; g.' i'.. •jiiii. "
Wlii'i't' aftiT a I asL' lias liii'ii iiiaili' a iiiiiain I,
ili'fi'iiilant lias juil^inriit agaiiiit liiin on liiiniir-
M-r, anil li'avi' is uianti'il to aiiirml, lie sLmilil
pay only tin' to.'-ls of tlu' (linniiiir, not of tlio
ll:
.l/.'Ai,
V. ».';■',,„,,
( >. l;. wii.
day.
I'laintili' .'iiiiil iiiioii a liuiul to pay inniiiy liy
instalini'iit.-), alleging iionpaynu'iit of an Instal-
nicnt ilui; on 1st August, IS.'iS. It.fi'mlaiit
pleaileil. 'I'lie cause was twict' trieil. On tlio
tirst in'oasimi a \erillL't was l.iki'ii for plaintili' in
the absi'iic'i' of ili'fiinlants, fioin wliiih plaintili
was ii'lii'Vi'il (111 payiiunt of i.'iist:i. • In tlif sii'imil
OL'i'asion a viTilict was also ii'iiili nil for plaiiititt'.
'I'liat viTilii't was aftLTWanl.i iiit asiilo, on the
groiiiiil that the instalinent due on the l:-t
August. KSfiS, was proviil to have been sati;'titil.
I'lanitill' afterwards apjilied to amend his deela-
ratioii liy alleging iiiiii-payiiK'iit of the instalment
wliieli fell due on 1-t Kehruary, I.S,">!(. This
was granted, Imt only on payment of the costs
of the last trial, the rule setting aside the viidict,
luid the costs of the application, raynieiit of the
costs of the tirst trial wa.s not reiiuired, imwrnnch
lis the verdict then passed against defeiiilants
solely by reason of their own default. J/imb r
V. aliiiMi; !» L. .1. 44. ('. I.. Chanib. -Draper.
Where plaintili' obtained a verdict on evidence
which did not sustain his decliiratiuu us framed,
and that verdict was set aside, he was allow'ed
to amend his declaration, but only on the ternis
•J. O.'llPV f'll.lf.i.
\'i 111 ir a •Icfeiidaiit, after iudgiiii'iit on di'iiiui,
I'l'i', was allowed to aiiieiid uii payment of costv
whii'll \>ele lint paid, the llllc was lil.ldi' abfiiliit
to enter the iiidgnient fill' [ilaiiitill'. Shiiiihi'\
Aiiiiii., !•;. T. ;i Viel.
Where, after a rule tocoimolidate, the plaiutiii ;
had leave to anieiiil his declaration by iiicieasin.
his damages: Held, that it was not iiece.i.sai,
to serve the aiiHiided declaration nor a ii. i
deinaiid of [ilea. h'l Irliiiiii v. Iliiiiiillnii, [■'„ \
•:. \'iet.
Where the pliiiitill', after notice of trial in an |
action of debt, had leave to aiiiend one of tl
coiints, and not having Hcrved the ameiuli
ilerlar.itioii iinr any new demand of plea, sign,
interloeiitory jiidgnieiit, and afterwards eiitiii.;!
lilial jiiilgliiL'iit and issued e.M'elition, the jir..
eeeilings Were set a.iiile. I'ltiiililll ij. t. v
Tifj'j'iii, 1 ( ). ^. •_'.
Seliible, where a ileel.ii.itioii is amended in ll.,|
name of the pl.iiiitill', it i.-i siilheieiit toaineinltlr
deelaiatiiiii liled, w itiioiit li ling all amended m
//'(,'/ V. /.'-i;//. , (». ••-;. III.S.
.\fLir argiiiiieiit mi di'iniiricr to the deiliril
tioii, the plaintili had leave to amend on pav
iiieiit of costs ; but before any aiiieiiiliiifii:|
defendant iibtaiiied a rule staying proceediiijjSi
the laiise on pay ineiit of the costs of the caukl
Defendant allerwards, and without paying.;]
Ia\iiig those eiists, nioved to disi.'hurge the plaiil
tills rule to aiiieiiil, lii'c.iiise the aiiiendnieiith);|
not been made, nor costs of dcinuircr paill
The court discharged his rule w itii codts. //.■'
\. K.ilh. •_' o. [',. idO.
.•\fti r all aiiK'ndliii'lit defend.ilit had two clei'l
dav"' to plead to the aiiiciided dei laratiuli, lil
tin" •_M..t rule of il. T., ISoO. After two ilavsf
if defendant had not aincndcl the \<\i\\ 'H'li
take any '■tep which the then stai
will warrant, and such step >
defendant's right to amend ; I ..J ttti]
defendant might at any time anii Hufi-
Kliiii; 1 I'. U. !tl. F.' C. -Drapei ' ea uti
V. I,, v. Act, s. 117.
When defendant obtains an order to ma
the dei'laratioii by inserting his right name, d
plaiiititi' must see the amendment made both;
the copy tiled and served, and the time to jJi
will begin from such auienihucnt ; but it ist]
necessary to serve a fresh copy :- -Seuible,
ever, that a new demand of plea is requiffij
DiiKjiinui V. Ktet/aii, 1 P. 1{. 135.— Chiiffitf
Burns. See nowC. L. P. Act, a. 117.
%
lie nilf t.i
ILMlioll l.il
iitn'tttiun ',1
CIlUllili.
•nil liU lie- 1
wuil to IliU
ubiumni.
, HUi'li :w ai.
;ry of jiiil;
,'11!* illloUl'^l
L. .1. N. ^
il on il(;uiiir.
rllt of (.'nst.,
i.uli! iil)Milm.
SL'iiiiii I- V
, tlio \il;iiiiii;; .
l)y iiicrtMsiii.
Hit lujui'sdarj i
nor :i in-w |
iiiilliiii, I''. 1
iif trial ill :iii|
(I OIU! of tllf
till' iiineiiil"!
• lllull, .sigUn;
variU I'liti Ti ,
,ion, till- III"
'nil «!. t. 1
nu'iuU'il iiiti.
t to:lllU'lllllll:|
iiiii'niU'il I
1 tilt' ilt'daril
|iieii(l oil pii
iiiueiKliikii;!
kiroL't'i-Mliiigs.l
(if the cuustf
Hit laying'.
|;irve the iiUilI
iii'ii(liiieiitli).l
tiiiiirrer ijaiif
li .'(idts. Ikl
li;ul two cleiil
lei'hinitioii, k|
Iftei' two lian
jplai 'irt'n
a tM
(lur to auki^
ht uaiiK', I
riiiailo Ixithil
I time to (ill
, but it is 1
f-Semble, ti'
lea is rcquiiisi
15.— Chan'.!'
1117.
liii),'
itii.
197
\fti'i' four tiTiiis have claimed itinco tiio laHt
BriK'''<'il'"K> "" i"'!'''"'""'"' «l', anil in the I'liMiiiii^' til'lii ti rule
lor imlt'iiieiit an in la.-ii' of .i nonsuit was (lis-
Bhuriji'il "1"'" ^'"' l"'''enii>toiy nnihTtakin^; ami
iviiiiiit of ciiMtj*, anil the pi lintill' afteiwiiiilM
Ibtaiiieila jiiil.!,'e'H miler to anieinl his ileelaration
In iiavniiiit of eosts, uihI witliout iiayini; the
Lwts 111 lii'tli eases serveil ilefemlant w itli his
Beliiliil ileilaratioli, the eouit set asiile the
iif tile aiiiemleil ileelaration with eosts.
M,i,hlnd' y. Corl.r/.iQ. n. •-'.".
On a varianeo between iiroof and deed deelured
n eiiiiiisel II. list ileterniine at the trial whether
liev «iil aiiieiiil under the st.itiite ; leave eaniiot
reseiveil to aiiiulid the reeord afterwards.
fch'iti-l'iiii V. Itiuwii, 5 CJ. 15. 471.
Till' siiiiiu'oiis to aiiK'inl a ileelaration need not
Bcil'y till' aiiieiulnient. It is siillieient to nien-
on it ill the iiiitiee of the intended a|i]ilieatioii.
D(('/i V. P'l'Hii, I ('. L. ('liaiiib. I7.">. Maeaii
I A li.irty iiiiviiij,' leave to amend his replication
mint lile a !<(iecial ileniurrer in lien thereof.
won html V. ' 7iV. L. (-'hanib. l.')8. - IJunis.
IWiiere the true state of facts waa not laid
Ifuie till' judge who made an order for leave to
_eiiil pleadings, he rescinded his order. li'ar-
tk\: I'olhr, H L. J. 47.— C. L. Cluunb— Draper.
iTlie phiiiitilf having obtained an order in
Hubert for the aincndniunt, and not having
aili'd himself thereof, because the cunditiun of
niieiit of Costs was annexed thereto ; upon
dicatioii to amend at the trial, the .judtfe in
i discretion refused it. Iloob r v. (iamble, 13
I P. 4U2.
^hire an application is made to amend a writ
[other proceiiliiig by reason of anything con-
ned tliereiii oi omitted therefrom, .such writer
er procceiling, or a copy of it, must be brought
Ifore the court. Attorney-Geiieru! v. McLach-
,5 P. K. U3.-P. C— A. Wilson.
Hieii an order is made giving leave to plead
1 demur to the declaration, with permission to
I plaiutitl' to amend within a certain time, but
"hoiit any express stay of proceedings, a plea
irinr r hlcM and served before the expira-
time irc irregular, and will be set
at TiiijLr V Unmd Trunk J{. W. Co., G P.
|»iid 10 I. J, N. y., not yet reported.— C. L.
I 'on, r. C. d' /-".
X. Ml>;CELLANEOUS CasES,
kiceedings taken contrary to rule of court,
Bot be supported by a subsequent amendment.
Id. Bunihuw v. .biwwo '-. 7 Q. B. 598.
ueiidnifut of convictiuu. Jferjiiia v. J{oss,
3 Viet. In re Watts anil In re Emery, 5
•Jti7.— Chamb.— < iwynue.
[ coroner's warrant on habeas corpus. In re
mkkiel, 10 I.. J. :«.-.. -C. L. Chamb—
btr.
AMKNDMKNT IN EQUITY.
08
In partition proceedings, hi c Kiiinrli.i unit
/'o-,/, •2Hi. H. 311.
Of inilictnient. I'nriiiriill w h'l'ilnn, 'XM). It.
lOli; /i'lyiiniw ./•k-Lioii. I!M'. I'. -JnO.
Senilile, that if material evidence be given
before a magistrate, hut unintentionally omitted
from n return to a certiorari, an nnnmdmeiit may
be allowed to supply it, but only with the eon-
eiirrenee of the parties and of the witness by
whom the deposition was signed in the correct-
ness of the ailditioliN ; but it cannot be snpiilied
by allidavit. I'li/nin v. MrXniiri/, ,"> I'. H, 4M8.
-Chamb. -A. WiLson.
(tf information before a Magistrate, //i re
; Voiiklin, :U y. M. I (10.
I
Of election petition. In rf Kli-fl'ittii fur ('mint i/
ojMimrk, 3'-M,J. M. 147.
II.
III.
IV.
V
VI,
AMKND.MENT IN K(H'ITY.
Ok Bills.
I. After AnMWfr, 98.
'2. After Heplieution, 99.
3. At and nftfr the lifiuiiii/, 99.
4. After Dect , lO'J.
5. ('o.^ee Mortgaoe.
VII
VIII. See also the Several Titles.
Rectifyi.nu and Varyino Deeds— ,S«(r
Deed.
I. Of Bills.
1. After Answer.
A motion to amend is no answer to a motion to
dismiss for want of prosecution. A plaintiff
moving to amend after the time limited by the
ninth order of the Court must shew that the
order could not be complied with, even with
due diligence. Mc\ab y. Gwynne, 1 Chy. 127.
Where the plaintiff's solicitor absconded
before the time to amend the bill as of course
had expired, and his departure was not known
to the plaintiff till afterwards, and due diligence
appeared to have been used by the plaintiff, the
il
-
99
AMENDMENT IN EQUITY.
100
ri
I '
court granted leave to amend on payment of
costs, ('(iriici/ V. Hiiulliiii, I C'liy. A'l'X
Where tlie state of facts maile by an original
bill does not exist »vileu tlie defendant an.swor.s
the plaintiff cannot amend, so as to l)nng in
other facts to keep the bill alive, but must tilo a
new bill. Vltji Jinn,': v. Aiii.->,!iii, 7 L. .). '-".W.
A bill was filed against three defendants, A.,
B., and C, one of whom, C, was tiien out of
the Province. An order was obtained for leave
to serve C. by substitutional service on A. aiul
B., for the purpose of amotion for injunction.
A. and B. answered tlie bill, but (.'. did not; the
bill was then amended, ami notice of motion for
injunction served on A. and |{. for themselves
and, together with the bill, on tlirm fori!, under
the order for service. After the motion was
disposed of, the plaintiff took out an order dis-
missing the bill against A. and 11, and on the
same day an order to amend, under which a re-
engrossment of the bill w.is liled, and served
personally on C. This order to amend was
styled in the original suit, and worded to amend
the " office copies" of the "defendants :" — Held,
that it was a second order to amind after
answer, within the meaning of order '.), of June,
1853, 8. 12, and it was, on the ai)pliL'atiou of C,
discharged with costs as irregular. A'l///// v.
Junes, 1 Chy. Chaml). 37-1. — Spragge.
A plaintiff will be allowed to amend even after
twenty-eight days from filing the answer, where
he has been delayed by defendants not obeying
the order to produce within proper time. Airlii-
bald V. JIuiit'i; '2 (Jiiy. I'liinib. 1277. 'i'aylor,
Secrelari/.
After answer, liberal add'Aiun to the bill by
amendment, retaining the original allegations,
is proper, even thougli rendering a new defence
jiecessary, and the costs of such amendment are
proper coats in the suit. JhO'i.'/irnn/ v. Mi-i'un-
key, G R «. rjG-rhy. Chainb. -Blub;.
•2. Afl^r R iAl:ai:un.
An amendment of a bill after replication, and
long after bill liled, for the purpose of stating a
case of gross fraud, wdl not be alloweil unless it
clearly appear that the plaintiff or hij iiolicltor
did not know, and could not re:eionably have
discovered, before tiling the bill, the fai'ts upon
which t!ie fraud is grounded. W inn I -t "el: v.
yiwjuia, 1 C'liy. C'liamb. UifJ. lOuten.
The court may, at any tinu'. under jimpfr
circumstances, permit an auK iKlincnt of the bill
in furtherance of justice, and upon «ueh terms
us it may think lit to impose ; but to obtain
such indulgence, tin' plaintiH' must satisfy the
court by affidavit of the cause nf the ill was liled to !;et aside a ci.iiivi!;|
ance as ha\ ing been made to hinder eredituiil
on giounil.j vUueh the plaintiff failed to uubataij
tiate, but the e\iden(,e of the grantee hiiii
shewed tiiat on other grouiuls tlie plaiiitilf »i
entitled to relief, at the hearing leave wa3j;nii
him to amend setting forth such grouiulj, uuiJ
decree was ma'.le in his favour, but, uirIci' tltl
circumstances, without c.jsts. ll'd/.-io// c. .1/' f
till/, 10 Chy. 41 (J.
The court, under the pei uliar circuiiiataM
of this ease, lefused a ilecree in the existing .sluj-
of the bill, but gave leave to amend, witlic
costs. Cuiiiiiiiijhiiiii \. ('iiiiniiK/ldiiii, 10Cliy.-l.!J
Amendments may be made at the lieariiij;
causes under tiie new practice as at i.i.i [i
I'raser v. itinlmii, 1 1 Chy. 4"_'0.
I', being in insolvent circumstances, ami i
to obtain in his own name a lease of certain rr.|
estate which he had previously had a lease
procured one S. to apjily for and obtaiiiwl IrJ
the owner of the i»rcperty a leas(^ to him, 'I
under an agreement that I', should coiitiiiiiff
100
t., c. GH,
lose judg-
thu 1st i.i
I ci'cditdi
the year
ill ill 18M
ilebtiir to
cu iloui; t.i
iitivry, aii.l
for valuf.
J thi^ plain-
, bill a l,ill
/iiig for ail
stage of tlie I
any risk ui j
utiuc obtalj-
le (inleiij 111 I
tl a bill fur j
■oiitract, tilt \
tract liaviiij ^
, but oti'erol ;
lenuissiuii t^i
iitract. .!/■
islrator \viiii|
the dcfeialaii!
tgage uitiiitv I
ue, tho^ria^«J
il to \)ioi.'w.;
■ of the fstatt.
LviueiiilmLiitaiJ
it rooorJ, tl]<|
I dismisseiltlKJ
liir.iiti; il('iiv|
tho tlefeluUn;!
by way ui ail
y lilua a ix'pLl
11 to impcul
iu cvideu*!
latauct-'ri, ga'.<
nil tlio allcitl
Filll'lp:''
.■iiilc a coiivei I
liilur ('redituiJ
llcil to ^iuliitail
■antoi; liim
L" jjlaiutill"*
javu' waajjiiiil
^rouuilj, aii'l^r
Lilt, iiiiiltr tL.|
It.io.i r. M '
(.■iri.'UUwtiiK'ill
I existing sli'li
lliell.l, «ltli-|
|i, ioi'Iism:!
the lieariud
at i.i.i V"'"!
ues, anil ""■■■'
J of ciTtuiii r
lad a li^:'**
1 obtaiiiwl IH
to him,'
Id coiitimif'-i
101
AMEND.AIENT IN EQUITY.
102
i work the same as a nursery, and from the jirohts
reimburse S. certain advances and also jiay a dclit
due by I'- to him, and tliat I', should retain any
balance for his own benefit. ( »ii a bill lilcd by a
creditor of P. .seeking to have S. declared a|
trustee for 1'., and to have liis interest sold :
I jjpid that althtmgh there wa.s no resulting triu.
Defendant, by his answer, set up a coinpro-
Imise of the claim, and prfivod it ; whereupon
Ithe plaintitf asked leave to amcml i-i order to
Imptach this settlement. The court grani"d
Hhe leave on payment of costs, but witluuit the'
icht to use again the evidence which had been
Itaken. .l/c/"'.'/'"'' ^'- ('''nici'ini, 13 t'hy. 47r<.
V bill to restrain certain of the dcfendant.s
Iroin clo.oing windows looking acroFs a lane of
which ]>laintifl' claimci' to bo the owner, wa,s
nended at the hearing by striking outtlint part
blaiming title to the lane. /jV,'/;/"c v. A /'mi, lo
Chy. 3.fs.
Where the jilcidings and evidence were not
ueforc the court in a satisfactory .';!iapc, and,
Kideiicc on both .sides having lieen rejected
Il immaterial, the result was not salisfaclory,
leave was given to amend on payment of Ihe
Kstsof the hearing. I'oitl'ntx. E'lita; 10 Chy.
(1. i
The plaintilV h.ad purchased eert.iiii mill pre- i
lisos frmu ('..and afterwards sold tho same;
he hill alleged that on the sale ( '. had .Tgrocd
J arof|)t the sub-purchaser as his debtor for the
npaid purcha.se money, and to disrhargc the
Taintifl. At the hearing the ]>laint ill' failed to!
—tahli.sh this agreement, but there were rtibso- ;
loent tran.sactions by me.ans of which also the !
jaintifl' claimed at the hearing to have been j
lischargcd. This crounil of relief not having i
icn stated in the bill, tlic plaintiff h,ad liberty
I amend on payment of tho costs of the day.
ilhn V. Xaniiait, 16 Chy. 607. I
After a bill hacl been tiled by a judgment !
tditnr, iiiipcaching certain dealings between
'sdelitorand a vendee of tho debtor, the plain-
Tallowed the writ against lands to run out fori
HP time, hut sul>Rei|ueiitly renewed it before
hearing :- Meld, not necessary to ameml
•tiiiL; this fact, and that it.s oxistinee was no
bjcitinn to the jdaintill' obtaining relief at Ihe
uring. Mi-I)ii}i, 20 Chy. 428.
A plaintiff ^\ ill not be permitted to convert a
bill liy amendment into a new bill for different
relief. If in making such amendments as, sub-
ject to this re.">trictiop, he is justified in making,
a phiinlilV si rib ■< an/ allegations so as to render
tho answer to them useless, an application may
br •'■ ■■'' by the defendant answering forhiscosts
thu^ uimeces.snrily incurred. Such application
should bu made at the hearing. McGillivray v.
McCuiikc'j, 6 P. I\. SO— Chy. (Jhumb.— Spragge.
•1. Afi-r Do'irc.
'I'hi' iciiuL will not amend a bill after decree.
Uiinrit \. (•'iiyiliii); I Chy. Cliamb. ,144; Law-
)Y<.;o)i V. liii-L-!, )i, 2 Chy. Chamb. 331. -Van-
Kougl'.net.
(,!u ere : Whetlicr a bill e, in be amended .ifter
decree. It c.uiuot on an application ex parte.
JLlduk- tij Moiilrrri'. V. I'uvir, 2( hy. Chamb, 47.—
Taylor, Sccrdur;/.
i). (■<,.-y the
defrinliiit ;iii>wering for the costs thus unneccs-
s.iiily ill! iinril, and such an apidieation should
be made iit the iieaiiiiu'. .\fter answer liberal
addition to the bill by aniendment, retainiiif;
tin; ori;;iiial .dleg.itioiis, is proper even tbongii
rendering a new defeiiei' neees.sary, ami tlic costs
of siiili ameiidiii.iit are proper costs in the suit.
.\li-i;illirmil v. MrCnibil, \) \,. .1. N. S. 161. -
iChy. Chamb. hlake.
I .V plaintilV amending bin I dl after service of a
dLiiiurrer, and before it has been set dowii for
103
AMENDMENT IN EQUITY.
lOl
ii:
190.— Taylor, Referee.
An order to amend taken out pending a
demurrer, without providing for the costs of the
demurrer, was held irregular. Lmie. v. Cnwp-
be!', 3 C'hy. f 'hamti. 07. -Taylor, Secretary,
(5. Prncticf.
Where Ity the order allowing a demurrer leave
is given to amend the bill, and the plaintiff
neglects to amend, the proper course is to move
that the plaintiff do amend within a given time,
or that the orrler be discharged and the demurrer
allowed. Xrhoii v. Rahertnon, 1 Chy. 530.
A plaintiff submitted to a demurrer and
obt.iined an order to amend, by which he was
required to make the amendments within four-
teen days. This he failed to do, but took out
ex parte and served an order of revivor, the
demurring defendant having died after the expi-
ration of the fourteen days : — Held, that by his
failure to amend within the time limited, the
plaintiff's right to amend was gone, unless by
a special application he obtained an order
enlarging the time : that the bill was not, by
such failure to amend, out of court, without a
further order, but it was open to the defendant
to move to dismiss : that the plaintiff was not
w.irranted, without notice to the defendant, in
tiking any farther step in the caiisc before
m,".king tht .amendments, for which, in the first
place, the bill w.is preserved, and he could not,
therefore, issue an ex parte order of revivor.
Carr v. Moffnt, I,. .1. N. S. ,^2.— C'liy. Chamb.
—Blake.
After the expiry of the term limited by an
order to amend, the right of the plaintiff to
amend under such order is strictly gone, but the
defendant's right to object to amendments made
after the period limited may be waived. Walrr-
oiM v. Fiirrnn, 6 P. R. 31 -Chy. Chamb. —
Spragge.
Where a tnntion i.s ni.adc to amend the bill,
under tlie llUh order of Ma\', IS.'iO, a draft of
the proposed amendment must be laid before
the court upon tlio aj)plication, but it need not
be set out in tlio notice of motion. Aji/ileiiartl'
V. n,ikrr, 2 ( 'liy. 428.
The plaintitl', u|iun nmving, niu.st slicw, lirst, '
tiie tnitli of tin; ]iroposed amendment ; and,
secondly, its propriety and exi)ediency, with a
view to the ends of justice. //(.
An orilcr to .amend having been rdttained .and
served after service of a notice of motion to dis-
miss, was deemed a sufficient answer to such
motion. Ilill V. /////, 2 Cliy. (i!)2.
When it becomes necessary to revive by vv.iy
of amendment against infant defendants, tiie I
jiropur course is to amend simply in the first '
instance by making the infants parties. After i
that is done, if the infants fail to have a guardian {
appointed, the plaintiff may apply under the IStli
order to have a solicitor appointed guardian, and
in either case the plaintiff will be in a position to
move that the suit do stand revived. Kirkpatrkk
V. Fvwiudli; 4 Chy. 540.
A party by amending his l)ill iloes not pn.^t-
pone hia liability to be examined until after thf
time for answering the amendment? expirrs
Fowkr V. Boiilloii, 12 Chy. 4.S7.
The time appointed by the court for vacatior,
at Christma.':, is not excepted in the computation |
of the time for amending the bill. Order ,) i,
1853, refers to the long vacation only, f'oinioli
V. Montgomeri/, 1 C!iiy. (""hamb. 20. — TerSprayn^
after consulting with the other member;; of tlif
court.
Apart from any general onlern, thi.i court i r
permit an amendment of its own recordr, ;
that, though the order of 6th .lune, 18()2, may iint
provide, in some exceptional cases, for the iiiti
auction into a suit of matter arising sub-secjucn* '
to its institution, such matter may be introihictil
upon motion for leave to amend the bill. Bn'w'
V. White, 1 Chy. Chamb. 275. — VanKouglmet,
Where an order to amend has been taken mu
but, through inadvertence, not without preju(1i •
to an order pro confe.sso previously obtain..;
the court will grant such an order nunc pro tiiiii',
so as thereby to revive the order pro confi-^si,
Rattan V. Smith, 1 Chy. Chamb. 296.— Mdwa;
Order 79 applies only to copies order to anicn!, i
not to office copies of bill. Ti/roii v. Penr^,-]!
Chy. Chamb. 470.— Taylor, Secretary.
An order to amend obtained before serving tbl
bill, does not require service. Bol.iter v. ri„i|
rane, 2 Chy. Chamb. .327. - Mowat.
Where a bill had been amended, anil tk'l
affidavit was of service of " the bill," the r.mr.l
presumed the bill served was the bill as it str».l
at the time of service, /h.
Under an order to ameni|
granteil, the plaintiffs obtaineil another jmlgifc:
ag.ainst P., not upon eonfession, but by i1i.'Im!|
Under these circumstances, a motion for li.'.w
amend the bill, by alleging the recovery uf I
101
s not post-
il after th
;s expires.
nr v.'icatinr,
ninputiitiot; !
Order .'i i.i
f'oiitinJhj j
'er Spragci", j
ibers of tlit '
li.i iTinrl Ciit I
rcoordr. ;
W2, may m ■
or the iiitrfi
; subaciiucm \
ic introduciil
bill. B'm
inKougluiet. \
m taken om, !
out prejurti "
sly obtaiiK'l
Line pro tunc, j
pro confessfi.
!96.— Mowall
dor to amenil. 1
m V. /V,7rs;|
iry.
re serving tbl
ots/cc V. ('(iA\
t.
ded, and tli(I
lill," the foiirJ
hill as it stwii[
lecl on pr,Mi[-,
V)ill cannntl<|
jiearing at tt
lendment, vrv|
t. Fi-ht.A r.
lor, Sf'-rdm-,
Il the phimtl
lew defrnilar,'!
lintitV, wither
[bill (.r iiiay.il
Iietion, M\'\t\
dofeiidaiits
lint a, waivir I
l/w'.V, I'-i'l
or iiijiin't,''!
lilV aliK'ivl-'
Itu tluir.'it;
|105
AMENDMENT IN EQUITY.
106
Idjiiiicnt at l|
lllU'illlU-'i'?'
Ihat iM'lL.tm:'
Trior .iu.lji..'.|
lis of I'. "I*
Ihe injnii't'l
[therjiid^nii-!
Imt by '1' ■'''
Ion for 1' ■!> ■
L'covery ui 1
Lecnnd judgment, was granted. MmUreal Rovk
Iv r/c ' Annum Errhnnac Bank, 1 Thy. fhanib.
Where the time for amending tho bill ar, of
Loiirse haa not elap.sed, an order to amend, with-
out iirejiulice to an injunction, is a.T of oourse,
ml obtainable on prrecipe. Ei'on.'i v. Root, 1
Dhy. fhamb. ;tr)7.-Spragge.
Material amendments will not bo allowed
rithmit prejudiee to a pending motion for in-
Innctioii. Dnrij v. Danj, 2 fhy. f'liamb. SI.
A motion to amend without prejudice to an
Injnnetion will not be granted ex parte. If the
nomlnicnts are such as could be made without
r.necial application the order can be obtained
En piwi-npe ; "f not. notice mu.st be given to the
barties affected. McGregor v. Mam/, 2 Chy.
thamb. 3S7. -Taylor, Serrelari/.
S. Otlirr ('nxr,^.
Tlie eoiut refu.seil special leave to amend by
ntrnilucing new matter, where the matter of
he proposed ameni'iii ^'- Tunirr, I (.'hy. f'handi. 2()S. \'an-
toiij.'hnct.
A hill "IS tiled by a surviving jiartner against
he representatives of the deceased partner,
nying an account of certain partnership deal-
to whicii a demurrer for want of equity
as i\!linved, on the grounil that the relief sought
liuirtl by the lapse of more than six years
etHP'^M the teath of the deceased partner and
he tiling of the bill. (lOave was given to amend
hth a I lew of shewing that certain land held by
]>c iloicased jiartner, and which had dcscendctl
I his iirira'law, had been purchasc1h rl.arty
seeking to rehear, .and wiiere the grounds for
rehearing was an alleged error in the decree,
which w;is not an obvious error, and cau.sed no
niiscirri.agu of justice. /,<»/ v. Lup/i, 4 Chy.
( 'hand). .3. -Spragge.
A consent decree may be .amended on petition,
if it contain terms not consented to. Mtrefiaiifn'
liiiiik v. (irnnf, 3 Chy. Chamb. G4
il
ill
(l
107
ANNUITY.
lo^;
liianioit;;aL'C'SiiitllK' |plaintitr liii\ inj,' olitaincd
a decree which could not projierly lio issued on
pnecipe, the ])laintilT's solicitor asked, if tiie
referee considered the decree erroneous, to
ameml l)y inserting a ilircction for the master to
enquire as to an alleged tender: Held, that such
an amendment could not he midc, the decree
being one which could not lie issued on priecipe,
and that a decree so issued could contain no
special ' Dowhifn-
v, ffniihrof, l!)('hy. <).-).
come to light on eroBS-examination, there bein/
strong reasons for apprehending that the awirl
was not a fair award, /ii n I.nir.vii v. I/iiirl,;,..
■■<»ii, I'jChy. 81.
AX( ll-.NT DOCU.MEXT.
S'l' EVIDKNCK.
IV. (>i .Masti:i;'- i;i;roi;T.
In taking an account of mortgage money and
interest, the master computeil interest \\[> to the
19th of March, hut hy some error in his report
the money wa=i appointed to he paid on the litth
of January. Upon plaintilV's application ex
parte, this v.-.ts corrected. H7(7i v. ('(ii'rliii';i, 1
L'liy. Clianih. 11. — Spragge.
After advertisement for sale it v,-,\> disunvereil
that the report had omitted to include tv.o items
of interest: — HeM. there was no necessity for
apiminting a now day for iiaj'nient, and it was
referred to the mast'^r to take a tre,-.h account of
plaintiff's claim, and to amend hi.^ r^p^.t, and
leave wiis given to lix a new upset price and to
postpone the s ile if necessary. y^cs-.M y v. Uniham,
9 L. J. S'2.~('liy. Chimh,— Estcn. '
I.
H.
Ill,
IV.
V.
VI.
1 VII.
ANIMALS.
I'kMIM; .\(;,VINST— .V,
Disrit.viM.Nc —Sk Drsriiius.
Horses— .Ve(; Horse.
HonsE liACK— .SVr fl.VMINc;.
I.MPOINDINCJ— .SV'' MUNKlr.VI.
TIONS- rofND-KEEPEI!.
ISMlltV TO— .Vc H.VII.WAVS AM) KaII.Wavj
COMI'A.NIES.
TiiEsi'Ass FOK Sei/,i.v(;--.SV( Tresiwks,
( UnriiRA. I
A clerical error in .i ma-
.amended. Wni.-nr v. Mn i
'2t)6. — VanKoughnet.
A motion to correct cucli
notice, unlen.i on consent.
2f'hy. Chamb. 12. Mow.-.t.
npo;-
Chv.
will he
Ch.imh.
error . I
'.'111 I I'j on
v. (I'Inir:!, 1
I'ower of corporation of the city of Tornn!'
to pass hy-laws for the destruction of dogs fdunr;
running at large. MiKinuc v. Cainnhidl, 10'
B. 241. '
Held, that upon a count m case, for inj:'.
rics done hy defendant's hull, alleging dclcmil
ant'.-< knowledge of the hull's vicious propensitvl
the fact tiiat he had once admitted that his liii!
had done the injury, and offered the plaintifl
.^10, was properly submitted to the jury as cv!?
deni« of such knowledge, with a caution, hnTl
ever, Mfi to its weight, as in Thomas v. ^Inrgacl
2 Cr. M. & R. 49H. Mamn v. Mornun, 21 1'f
n. ;52S. '
Tre.-pas3 is maintainable ,agaiii.st the owner''
a Vmll which has broken into the plaintiffJ
cIo.".e, and there killed his mare, defend.iiit n;,
hcin^^ present or aware of the act. //).
\'. Mir( r.il.ANTo; .; Ca-i: .
A\ here an information had been amended by
merely adding a party l>y the diicellon of the
court, a motion to take the amended information
off the tiles because not signed hy tiie attorney
general, was refused. Allonn;/ tiiiifrn/ v.
Turoiiln Strct f,'. 11'. Cn., 2 ( 'hy. Chamb. ,'t2l.
— Taylor, Si '•»•< lur;/.
An amrndment w,i, allov\ed «liere ;in unim-
portant mistake had lieeii ni:idc in a n.ime, which
had misled no one, and t!ic right person had
lK;en served ; and an ( nlarg''inent on aeeonnt of
Ruch amendment w.is refu;:cd. /•'/■((« /■ v. fiii-^i i;
2Chy. Cliamb. 4:.7. Taylor, S.nr/or;/.
Wh'.re tliere is a nil.-joindcr of petitioner.* in a
))etition for stay of proceedings, tlie cnin't has
jurisdiction at the hcnrnigof the petition loallov.
the same to be anicndi'd by striking out a name.
(iillirr/ V. Jarrit, Hi Chy. I".)!.
On a motion to set aside an award, t!ic court
allowed tlie party iirejudii'cd to serve a sn|)ple-
mentary notice emiiodying olijeetiona as to the
course of the iimpir^; and arbitrator, which h.ad
ANNUITY.
I. Bv WlM.-.S-" \\ILL.
' Where a testator had bound himself by
to pay to bis mother £12 lOs. annually, ai|
devised )iart of his lands to his brothers r
lOs. ])er annum, and pay all his just debt.~, Ml
niaile them his executors :- -Held, that .at lul
the legacy could not be considered as a sstisiif
tion of tlie anmiity in the bond, and that t;-J
mother was entitled to both. Culr. v. Co/', jij
,'^. 744.
.All annuity |i,iy,ilile annually during tlii-amre'
t.int's life is nfit aiijiortionahle, so lliat Ll
administrator can recover nothing if the .iiikI
taut die within tlie year. AtimiKtn v. .l/(."i'i
iiiiiy, ."• C. I'. ."Vil. See now ."{7 Vict. c. 10, H
(,Mi,ere, wlielhcr th" llnglish annuily K[si\
in force here ; hut if so, a liill to eiifiU''
anmiity dei'd need not allege the enroliiunt"J
memorial as rcipiired by those nets ; ami ,i"|
fcndant cannot at the hearing take an i(l>i('ii;|
for want of sucli enrolment, unless he ha'
up Hueli defence hv his answer. Eiiiiii'.i't
Crwjks. 1 Chv. l.VJ.'
100
APPEAL.
VI.
V testator having bequeathed £500 per annum,
Davvlile out of tlio rents of liis real and personal
bst lie iiiiliscriminately, for the support of his y 1 1
d.iow and family, (tiie widow having become'^-,,,
jj, L.xi.ciitrix,) her separate ereditoi-s wiire held
Entitled to have her share of the annuity severed
id attaciied to satisfy their debts, subject,
„.,.',,.i' to tlie prior elaiius of the estate
Isaiiist liii' !'>* exeeutrix, to lie recouped tor
lireai he:) of tnut ami tlie lil, s. 'JS8, to apply a ii'iiudy ; a.i in
lis I'iiae l>y t-i|iiitable attachment. Iia,ih nf
:./! \4j1il1 -I"'' '•''•" V. Mulllifir.-u S " iiy. 'ISti.
M.ATTER';— .SVr
l.\.
Tl
Is CUIMINAI
L.\w.
I'i:oM Masi'i:i! .Vf
I'lioM OKDKKS -.SVi
riiAincK AT Law.
.'^l.i'OMi Al'I'l.K'A'I'loN
I'KAc-nci:
I'KAcrrcK
110
CniMINAT,
IN KyuiTV.
IN Kyi'iTV
.S'-v I'li.vCI'li'K AT
the
the
Tilt' (luiur of property niortg.'iged it, and then
lieil having devised one half of the property to
ae soli, and tlie other half to another, chargiiii;
ch hulf with an annuity to the testator's
idow "lie of the sons afterwartis died intes-
kte and his widow paid oil" the mortgage and
ok an assignment to herself : Held, tiiat if
be was willing to make the annuity a tirst
arte on the property, the testator's wiilow
aid not insist on redeeming the mortgage.
lowj V. /."»;/, k; Chy. '.'.SO ; .V. C 17 C'hy. :.'.-.l.
I JJo iiiteieat is allowable in respect of arrears
[an annuity, (lold-iniil/i v. Oolihiifilh, 17 Chy.
13. ■
ANSWER.
1'lE.UiIKO (tENEBALLV— .?"'■ PlF-AUING IN
EyciTV.
III. f.'ErAK.iTF. Answf.k OF Maukiku Woman -
,'5'(V HrsUANll AND WiFK.
ANTE NUPTIAL SETTLEMENT.
In Liri' OF Dower— .%'(■ Dower.
]y, Frai'd of Creditors— .S'w Fkavdv-
LENT Conveyances.
APOLOGY.
Vee Defamation.
— ■• —
APPEAL.
1. Ehrou— .SVc Error anu Appeal.
Ill, From A'<.-'.es,!MEnt— .S'tv Assessment and
Taxes.
Is In.solvencv— .SVf UanivRI'I'tcv and
i.nsolvescv.
Kemoval of Cause;! — .Vc Certiorari.
KruJI CoLRT.-i.
I. From Cuiiiiti/ Coini — S'n- CoL'NTV
Court,
v. Fi-um Prartirf Cuiiii — .SVc I'ltAiTicE
Court.
II. Fr^iii Sitpniur Cuini.i
4. Fr
.SVc Error AND
Appeal.
M(iijiitnitiK—'*:see SE.SSIONS.
le geiieial rule in matters of appeal is, that
JLidgiiieiit appealed against stands, unless
ippellate cuurt can say that is clearly wrong,
Krnin V. (li/,i,(i, l(i C. 1''. -l.Ti.
While a power resides in any court or judge to
j commit for cuiiteinpt, it is tin? power or privilege
! of such court iir judge to determine on the facts,
i and it does not behnig to any higher tribunal to
1 examine into the truth of the ca:ie. in )v Clurk/'
I iini/ Nnrmany, 7 Q. I''. -"J;!.
I A judge when apjilicd to in vacation, under 4
j Will. IN'., c. 10, s. 1, for the commitment of a
( ilebtor on the limits to close custody, disposes of
I the case without the power of appeal by decliu-
'■ iiig to interfere. SIkiii: v. .V/c/vc-.k; — Oille^jAi' v.
! Sid;:rM,„, 7 0. B- o^l-
1 No nev.' evidence will be received by the court
on the examination of a deeiaion of a judge iu
ehambers as to a contested election. licii'niu ej:
I ret. Clurk v. Mr Mull, 11, 9 Q. B. 407.
Semble, that whether the court or a judge be-
fore whom the i-elator brings his case, will go
further than dc^clarc the election of the defend-
ant Void, or will proceed as well to seat the
relator, is a matter of discretion not to be inter-
fered with on appeal, lb. — Eobiuaon.
An appeal will lie from an interpleader issue.
Wilson V. Kirr, 18 (}. B. 470.
Where an action in the Division Court by a
school teacher against the trustees was referred
by order of the judge, with the consent of
parties : — Held, that the arbitrator's decision
could not be appealed from under IG Viet., c.
185. 8. lil. Vhiff Hup. rlntcndrnl of Hchuuh, Ap-
pftlaitt. III rr Miliiraiid .'^ylvrsler, 18 Q. B. 538.
Action for malicious prosecution, alleging a
deteriuination of the proceedings. Plea, that
an appeal from such decision is still pending :
—Held, good. Urljith v. Ward, '20 y. B. ;il.
Defendant was convicted at the Recorder's
Court, on contradictory evidence, for obstruct-
ing a highway, the result ol the verdict being to
show that he and several others whose houses
and greenhouses had been standing for sixty
years were eiieruacliing upon the street. Anew
trial having been relused, 011 appeal only the
evidence was returned to the Court of Queen's
Bench, with a copy of the rule nisi. The court
under these ciicuinstaiices, considering the im-
portance of the ca3>.', and thai thr •jruaiidi nf l/ir
judijiiiiitl lirlow ir,r'- imt ijirtii to l/iciii, directed
a new trial, contrary to the usual rule, which
was atlinned, that such appeals w ill not be enter-
tained upon (piestions of evidence. Jt'ii/iiia v.
McLnin, •_'2 Q. B. 41.S.
Remarks as to the iiicouveiiience, if not
danger, of making the writ of habeas corpus a
mere method of appealing from other tribunals
on points more ot practie.,' than allecting the
merits. In rr Miinn, 'Jo C'. H. -1. See, a,\-M,
Htinriinan v. Arnritnnii/, '_' I,. J. N. S, 105. —
C. L. (/hauib. A. Wilion.
8 '!
l<
Ill
APPRENTICE.
Costs where judgment of court below is : appearance by
reversed, but no directions given as to the costs | nullity. //"//
of appeal, .y/finii's v. Ift'il/ei/, 2 t'hy. 544. '
Interim injunction granted to stay proceed-
ings at law pending the decision of the t'ourt of
Appeal. Citllim v Cor/ji/, 7 Ohy. 'A).
Pending an apjieal from the ("'ourt of Chan-
cery, an injunction was granted restraining a
mortgagee fronj ju-ocecding to tlie sale of the
mortgage premises under a i)ower of sale con-
tained ni a deed. Commi'rrMl lUnik v. ISmih nf
Viqu'r Cdudila, I Cliy. Cliand). (i4.
Paying money out of court pending appeal.
//(7/v. Riithn-fiml, 1 Chy. Chamb. PJI.
for defendant, is
rii<;niil, I'S (}. H.
112
therefore a
.SiK).
APPOINTMENT.
PoWKK iiK Svf Wll.l..
The proper mode of appealing from the master's i^T*^'' ""» '^ '»•'"« «' agesiea on arnaay.t th;
certificate of taxation is by motion, not by peti- ^ * 7 '*'"'^' ""1^' """','^'' /''^ exercise cfum,
tion. In ir Pouhm, 15 Chy. 355. influence on the part of tl>e liusband furtli,
•' en(iuiry was directed, tciitun \. (mxs, i V\\y.-A
An appeal from the decision of the referee,
under the Act for quieting titles, may be to a
single judge. Arniotir \. Smith, Iti Chy. 380.
As to the practice on appeal under this Act.
See Ri' Hoirliiml, 4 Chy. Chanil). 58; S. C. Ih. iK).
There is no appeal from a decision on a (pies-
tion which is by the practice purely within the
discretion of the judge. Cham v. Mei/i'r.-i, 3 Chy.
Chainb. 120. — Taylor, Sccnlari/.
An appeal bond is properly intituled in the
cause in the court below. Ciim/ihef/ v. The lioi/al
CanmUan Bank, (i P. H. 43. Chy. Chamb.-
Holmested, lieferi)'.
Decree directing accounts to be taken varied
on appeal. Construction of decree in appeal and
duty of Master under it. llillnit v. •/V pliiiiiti'l '••< leavu anil license ;— Held suHi-
lieut without pleading a licnise to continue
Ibsei'it as the plea only professed to answer the
Ibseiit'iii" : Held, also, that the plea need not
lew tliat tilt; license was \>y deed or in writing.
SIn'vit.'ioii, .'< y. U- 'IJO-
Bv (leod between A. 15. and C. IJ., father and
Ml" ul' tlie one part, and K, F. and G. H ,
[irtiars, (.oacli budders, of the other part, the
hn with the consent of his father, bound him-
blf' apiirontice to the coacli builders. The in-
ruii'ieiit contained this clause : "And lastly, for
he true and faithful performance, &c., the said
ji., C. 1'., iiii^l K. I. and U. H., do bind
henisclves unto cuch other in the sum of, &c. :—
leld, iu debt by the father alone, against E. F.
te surviving partner. 1. That all defendant's
hveuauts w ere with tlie son and not the plain-
Iff •!. That the words; " unto each other " did
k u'wui separately and individually, but that
\eli jxirlii resuectively, i.e., E. V. and G. H.
foitlytoA. B.'and C. D. jointly, became jointly
mud to the other ; and that there wa» therefore
nou-joimler of plaintifl's. Qurere : the suffi-
incy of the (leclara;,ion as given in tlie report.
nk V. Oim>, 3 C. P. 249.
A surviviiu' partner is bound by the covenant
hiuiiselt and his deceased partner to teach an
ipreutice, until the end of the term for which he
JM apprenticed. Connelly. Owen, 4 C. P. 113.
JThe ikfeiulant, a J. P., convicted an appren-
if having absented himself without leave,
id adjudged that he should give sutticient
urity to make satisfaction to his master,
..rding to 14 & 15 Vict. c. II, and in default
be imprisoned for two months. The convic-
was (plashed : I, because the articles of
■euticesliip were not within the act, the
■entice being a minor, and the articles not
uted by any one on his behalf ; and 2,
use it could not be sustained under the
1 clause of the act for two months' imprison-
it, or under the seventh, because the satis-
011 to be given was not ascertained. //( re
H'< V. HohrLiun, II Q. B. 621.
: jilaintifr declared against the heir of W.,
\V.'s covenant to teach and board and
tlie plaintitl' a specified period, and that in
if W.'s death her heirs, executors, and
iiistiators should perform the covenant :■-
bad, for I. Hy the form of the covenant
jheir was not bound ; and — 2. Upon such a
act, lieiiig one of ajipronticeship, he could not
ailo liable. AV.c./v. (IV/V/i/, KiQ. B. 514.
ctiiin for (hiniages liy roaaon of defendant's
^tlii' lilaintill's' apprentice, absenting liimself.
that before lireach the plaintifl's dissolved
nnship : Hehl, bad, for not shewing anap-
^tii.esliip to pluiiititfs as partners, and that a
olutiun Would render the service impossible.
H'inl ,1 „l. V. M,i.
(c) Miilli i:< riliifiiiij III Liiiiil, 117.
(.1) Dllin- (V.sv.v, l,"il.
8. /'aiiliil nilidH;/, \Kl.
W. tfi'/i'l'ilH'c liiirh; l.'i.'i.
VII. SKiTiNd AsiDi; AMI SrvMMi l'i!(K'i;i:ii-
INdS (IN AwAlil).
I. Fur iiii.iiiliirl ii/iii'liili'iil'iff ur /Kirli"'.
(il) /// UlhilliJ nr rrjifllllij ICl'lil'llcr, I.IS.
(li) Ollitr lii-bAli\ I, INK (.'u.MMiS-
:uoNtr..'..
•.'. Bii Finrr I « (iv /•; .Vii' Fk.nie \ u;\\ Kh.s.
;{. I'luitr Munkifjal Inxtitutluns Art — Sa-
Mu.MDJ-AL CoKPori.VllOSS.
4. i'lnhr Pnhlir Srh «,/ ArU- Sir I'l ulic
5. Hi) J'uilicai/.i. — Sir ItAll.W AVS AMI
I'.AILWAV Co.Ml'AMF.S.
G. l'ni./ir 'Furonlo EnplciiHlili Art Sri-
'I'uKON'lO Ksl'LA.NAllK.
7. /i''<('(As- mill Ur'ntiji 1 Sir W av.
I. SriiMissHi.N till i;i;ii;ni:.N( 1;.
1. l\ lull 111111/ lir nftrml.
A i)iusiiutiiiii I'lir .Selling wliiskfy without a
licL'iisu cauiKit bo toiiijiiuiiiisiil witliout leavu of
tlie court, ami tliiivloro t:iiiiiot bu rclurrt'il.
Wlitiv, ultlioiigli thu oirciux' wuH not Kubniitteil,
it waa trifil liy the arljitrator, in oidi;!- toik'ter-
iiiinc thu liability ol the jiartie.s aa to costs, bo
I muuli of tho award was act osidu. /n rr Fm-,
I mill Fxriiii, I I,. J. N. S. 324. ~ P. ('.- A. Wilsoi,
'2. liji anil to irliiiin.
One of two |>artnerH cannot execute an ailni
tration bond in the |iui'tnei-shi|> name Hou.tt«|
l)ind the other partner, linlni v. /hirrniinil •I
Q. H. 54.
In an action on a sealed agrueinent to abi.U
by an award, it is no objection in arrest of iii.l.
nient that Uiv. sulnnission is not stated tn ii
mutual. A declaration that defendant agrw.l
with the plaintitl's to refer : Held, not supjinrtci
by an agreement by one plaintiU' only on lnjiaj
of himself and the others, being his jiartini. f
Frrnr/i rt. ul. v. Il'r/y, 17 g. R 'IA'k
A bond of submission signed by the win. nj
ifv// ri.s the husband, is valid, Mrtlill \. FrmA
foot, 4 Q. H. 40.
A. being interested in a lea.'ie, IS. heouunl
security for his performance of the covenant!
IJ. and A. refer disputes comiected with tl,.
lease : Held, no objection on the part of h ;
thu bond of submission, that it. is not a jmu 'm
thereto. ///. ij
A subuiissi:|
By directing that costs, &c., should be in J
discretion ut the arbitrator ; 2. That he >lit(|
not be reiiuired to reserve any legal iiucstu
Messrs. \\ . &. is. auteil throughout as agiiiUl
defendants' attorney, and all the papers fJ
served upon thiiii ; and W. was cuinuel full
lb;
-A. NViljtiiii
,itu ail uiIm j
iiiu HI) ;u u
cut to :il>i'l-f
TL'St III' jii.l^ '
sliitt'il to I
mlaut iigrct.;^
lot supjiiirtc'
Illy oil lieliiJ
lUB lKll'tllt>rJ
').
y the will'
nil V. /'/in 1 1
, 1$. l)Ci.'i)llln!
le tuvouauts 1
;teil with tli'S
imi't of I) ; I
ifi not :i \i:M;\
( 'ouiit'il muLJ
iut., t;. 'Jl, .
iiiiiiiM>iiom.'r!.:
■ /•,//,/;!• ir..',
. I'. Act, hil
■ other ciiuurl
luiil, uiiUbs I
„ni, :i 1. J.:
ill this iMsiwJ
iicil as a reiij
be iiuiil til till
I, on laiiil talidi
luini'lii^'
leai'.S, l-i-'llcWllij
l\ a:i assigned :|
lone 1''. At I
Ibitratiuii U
plaiiitilt. L>|
ut the arljitj|
a reae\v.il I
le lessiJl' ilii'iJ
[llts. 'I'llB In
,he IfSbie, »l|
|it, ami lit W
tlic ik-ldiiii^
the sllWisil
lilted oil itaii;
la tlie iuciimI
Istion of la»j
Id be relurM
Tiiee aiiil wl
lof referiual
Iroiii tills;)
liould be 111 3
1 Tliat lie »li4
lle-jal .lutjtk
lut as ageiitil
I coiuiael full
ARBITRATION AND AWAKP.
118
'enflantn both at nisi pri'is 'in'l the arbitration.
[t was proved that on an nndertaking of W., as
oiinsel for defendants, not to raise any quostion
if law, tho terms of the reference were altered
.iho've by consent of W., and of counsel for
ilftintifffl- *^ii motion to set aside the award :—
leld that W. had authority cither as counsel
ir as agent for defendants' attorney to bind the
Jefendants ; and the award was upheld. WUmn
The Coi'pnmlion of Ihc. United Couiitici of \
Umiawl Bruce. 11 C. P. 518. I
An executor or administrator m vy by a sub- \
jiissinn to arbitration preclude himself from 1
Headiuf plcno administravit, and thus rensarv evidence for deter-
inining whetbcr the jilaintifT wa!t bound by it,
and the verdict of the jury Ujion that point,
after applying the law to the facts proved, and
then, if they found in plaintill's favor, to refer
the amount.' U'pointment, protesting, in
case he was forced on, against the proceedings,
and if both plaintilV and arbitrator had been
clearly informed of this, — he would have been
in a position to make the motion, if the ju|
(luestions expressly states that the majiirit;[
may award, this power, though not rernatf [
throughout, extends to all miller.^ referred i\[..r|
which the arbitrators cannoi agree. Thirblh
S/rnrhan, 4 Q. B. ISO.
Where after proceedings have coiiiMioiniil ,i
a replevin bond, the parties to the replevin j-l
to arbitratiim, without the consent of the sureti T
all further jiroceedings against the surety will
be stayed ; alitor where the reference t. |{. ."■.40. //»,;,
aiora; 21 (,>. H. 2l»4.
An offer by clefemlant to refer a case to ar
tration cannot be considered as a waiver •■
irregularity in service of the notice of truil
7'/(c Grand liinr Xar'uintion Cn. v. M ';//(■. •■, si
B. 249.
Debt on award made by arbitrators apiHiiiiifl
to value the plaintiff's property, throiigli win I
defendants had by their by-law directed a ni,|
to be made : — Held, that defendants having ;'fii.l
to jirbitriition, were estopped from olpjii'tii,l
that the by-law was not averred in the dfilar,!
tion to have been under seal. WiLsmi v. J\
Municipal Counri/ 11/' Port //(./«■, 10 Q. 11 40.i
Declaration a joint bond l>y defendants M .'|
(4. to perform an award concerning all ditlVrrn^
between plaintiff and defendants, averring;!
award that M., one of flic difniflan/i.
indebted to the plaintiff in a sum nanitil. ati
directing him to pay it by a certain da.\ . !'!•
by the other aefendant, (i., that hvinn- •
execution of the bond the plaintiff li.nl •:;
defendants on a contr.act, which (i. denied l«:
a party to : that to settle said action tlii> l.tl
w.as entered into, which recited the suit, aif
the matters referred were the said action ,iii.l
differences between the plaintiff .and dftViuk
jointly, not either defendant singly : tli.it tiJ
only matters brought before the arliitiatm-s, •'
upon which they awarded, were the said ,iilti
and the matters in (juestion therein, andtli,it;:|
award was as follows : (setting it out in s\lll^t,^l
as stated in the declaration.) : Held, ondtid
rer, plea bad — Robinson, ('. .1., dissentiiij; .ii|
holdine that the bond, under the circtmistanfti
might l)e taken distributively, and each lie id
bound to do what sliould be awarded :vm
himself. Oerrin v. McDunfllH a I., IHQ. H. HJ
The plaintiff sued defendant on a iinml, i^nq
tioned not to commence business a.s ;ui li"i
keeper within three years in a certain tnwiiAl
At the Assizes the case and all mattei's in iMif
encc in connection with it were refeiri'il
verdict was taken for the penalty subject t"
award, and a memorandum of reference eudc
ii. ■■ J
ARBITKATION AND AWARD.
122
, tiif reconl, nigiifc'l ''Y tlie iittc.inojs. By tins
unite iHittti- waa given to tho iirliitrivtor to
I mint- the parties and their witneMscs, cprtify
Jnr'nwt^ iniil "infnil the iilpailiiig-t ; lint it loii
1 ,.il nil ayroemeiit not tii bring errnr, iiinl no
I taxi
\ii iiwanl
Inilf I'f ri'lVii'""' ha.l lietn drawn n|i
Iv villi! '"'*'" '"''*'''''" ti*^'*""' "f tlir plaintitl', d^'-
IjV' ].,j,tiiiiiv."l (oarrcMt .jndgnit'iit, on the gripuiid
llvi t th'- 1'""'''*'"" "''*■'' ^'"'''' l"'i'>K in rt'Ktraiiit of
Thr
|i|ilicat
I'fuscd,
nil Ih)'
■c.niiil!' 'hilt till' arliitralor niiglil fur all that
'' l),i\r ill ridi'd tile |Hiiiil now raisi'd, as
W'l
HO''.
6. Rfi'ocrttion qf liuhnmiioii,
[SeeC. L. P. Act. e. 179.]
A reference hy order of nisi ]>riiii< might bo
revoked liv either party licforc awanl made.
Hiiinll v.'.Milh, •_'(). S. 'iO!l.
W'hi'rr a railw.iy comjiany took po.s.-icasion of
lands withonl innsent of the owin r, and helil
tli"iii fur some time, and an arliitratinn was
agrt'id on, liy wliii'h it seemed jirolialile that the
prii'c would ^>e fixed at a snm very mneh larger
than the i ninpany would lie willing to |iay ;
1 Held, that the i'oni]iany could not, on tlii,^
j ground, levnke the Hiiliniissiiiii. inml Wi •/' rn
I A', ir. r„. V. Mill'i; I2 (,>. h. (i.VI.
' heehiiation on a liond of Hiilnnis.sinii, alleging
a ri'viieation of the siilniiis.siciii, and imn-iier
forinaiice of the award. I'l(>a, that defendant
liefore the awiird revoked the Hiilimi:4Hion (not
saying l>y an instrnnieiit under .•.^i.tl). Ilejili
eation, th;it the liond was exeeiiled after thti
( '. I,. 1'. Aet, IS.'iCi, and eontaiiied nothing
to slie-,v an intention that it HhoiiM not lie
made a rule of eourt : that the revoeation in
the deel.tratioii and plea mentioned is the same ;
wherefore, and liy force of the statute, the arVii-
, . , 1 ^" j trators were eiiipowured to and did iiroeeed not-
that a demurrer alterwanls set down ^-ithstanding, although defendant did not attend.
, ' I 'i,| niiwtl' to do, or the award might lia\e
, ,|.„,|| Hniiic other matter connected with
thi inntiiiil ; Held, no rule of reference having
Ibi'iii "ini"" "I'l "'''''' "^ ciiiild not lie assiiiiied
Ithit ilcfpiid.iiit had referred on the ordinary
Icimaitiiiii i"'< '" '"''"K •''•'""': 'li'l''- "'«". ♦'>'■*'
lif till' niiitiiiii had lieon after verdict, without a
Ire fill iii'i'. liefeiidaiit must have succeeded, for
thi '•Hiitinct liciiig in restraint of trade, it Mas
npccss.irv til shew
,,„.;,r,.ii ill the ilei
>){>. II. i:(»t.
Wluic ii ''■iii.'*e and all iiiattirs in dilVereiice
[,,1 lii'i'ii ii'fcrred, and an award made : Held,
fchiit I'll (|iH'stions of law as well as fact were
kniiiiiitto
for
a considi'ratioii, and none
aration. />(//;v.s v. Wilkin-
nniiiH'i . "•'•■ ■■ - ■ — - ■ • ■-• •• I wunstaiiiiing, aitnongn oeiennancuni not attcno.
r ,ir;'iiiiient must therefore lie struck out o |{,.j„i,„i,.r, that neither the Imml nor condition
,, i,,i|ier: ami that o ijcctions t.. the award | „.,^^ ,^^ j,,,, ,.,„„„„.,K.,.nieiit of this suit, nor at
l,.„l ,|,„„i Its lace eoidd m.t lie rawed as giving ^,,^, jj,,,^, „,■ j,„. ,.,.,.,„.ation, a rule of eourt, or in
M.rlit tliii." to Iiroeeed with the action. .!/'•- I „„,. .,.,,. .,v...„..f...I tv,..., ♦!... nHV„.t ..( d,., „,;.]
iruhttliiis to proceed with the action
r„Vi(/« V. M'-miiiiiiii, •J'i (,,•. II. I7">.
Wlitii' plaintitl' sued an attorney for the
piimiit lit an account, and defendant set ofl'
everiil hill'* of cost.s, including three in the
oiiiitv Cniirt, several in the hivision ( 'oiirt, and
tiiiii' till' iii^iilveiicy and eonvcyaneing, and the
disc was I'cl'erred ; and after the reference,
liiiiitiir. an unprofessional man, signed a memo-
Hiilniii as fellows : " I admit the within account,
Blijivt til „i.\atioii of all items that are properly
ixiilili' liy \V. Niirtlirnp : and I agree and eoii-
tni tlial the arbitrators in the within cause
liiw tilt within aicount in the arliitratinn, suli-
I't tu ti\.itii>ii of all items, jiroperly taxable as
tt'firi'siiil, charged for costs in suits:
hat niit iiiily were the costs in the ( 'ouiity ( 'onrt ',
aits tiixaliie. lint the costs in the Division
Viurts. insiilvency fees, &c. , were also taxable.
■,ll,n. Iln„hr.s!„i. ] L. .1. N'. S. I.T.». ('. I,.
haiiih, Hagarty.
any w.iy excmiited from the eH'ect of the said
revocation ; Held, jilea and rejoinder both bad.
Mo.«/ V. Clo.^lrr, Ui(). 15. 4!l().
Seinble, that the restraint uiioii revocation
without leave of the court or a pidge, provided
by 7 Will. IV. c. :i, s. ■»), is extended by the C.
L. I'. .Act, IS.'iii, s. !I7, to all sulimissioiis without
words pur]iorting that they are not to be made
a rule of court. ///.
On an ap]ilication to be allmMil to revoke a
sulimissiiiii, the discretiiui of the court ought to
be exercised in the most sjiaring and cautious
manner. In this case revocation was allowed.
/ii IV W'riijh' mill till < 'iir/iiiriiHiiii uf (Im ('nuiiti/
Heli'iy I <;/■ '•''•'.'/, H I'. •'. 104. I'. ('. Huiiis.
Held, that under the declaration in this case,
which was on the lominon counts, the plaintitl'
clearly coiild not recover for damages of any
kind ; and the plaintitl's counsel having admit-
ted this on theapjilication for leave to revoke, the
I'lKliiasiiliniissiiin •'todcterminewhicliof tho I court would not revoke the .submission on the
everal items of claim the estate of Mrs. B. is
Ciiiiil as matter of law to pay" : Held, that the
(tliitratnrwas aiitliori/ed to consider the liability
jor interest, although he could not correctly tind
|h( aiiiiiiiiit line. AriiLitriDiij y. Cniili)/, '2 ( 'hy.
lliimli. I'JS. Mowat.
Sonilile, that a reference
ground, amongst others, that such a claim wan
being entertained by the arbitrators. Jin.w v.
Till Ciir/iiiriitiiiii iij liriii-i , i\ ('. I'. 41.
The arbitrator appointed by one of the parties
having refused to aet, he apjMiiiited a new arbi-
trator, who formerly acted as his attorney, but
if " the iilaintitl "s ' not in this suit; Held, that the submission
niiii in this cause, and all matters in dillcrence ' must be revoked.
.1. N. .s. -n-t
W (
Tiillji v. (' /hi mill rill ill, 1) L.
NIorrison.
(twueii the parties in this cause," refers only |
ke matters ill dispute in the cause. Wiin.-liiir.l . ,-j,,„, .^ reference to determine the damage
■'""'"'• -'^ ^'- "• ■-"'■ I sustained by plaintitl' by reason of the tak-
l.Vtttniliiue before arbitrators and going into I ing and detention by defendant of a certain
ifc hy eiiiiM'iit ell'ect of as a ]iarol submission. I schooner, the arbitrators awarded §2,200 tim;. ;
■Hi'Uv. Minn/, 4 (>. .S, ',V!r>; h'lillin n v. /'imMlii, ' and, among other items, §40 for travelling and
jf'liy. UTO: Mi-('nlliieli y. While, ,T< i^. B. JiSl. law expenses. Upon a motion to set aside the
award, the court, without iMlniitting the legality
of the charge, refused to interfere, it being the
duty of the party objecting to apply to the jndge
upon affidavit to revoke the subiuission, and not
|Sw'0'/i,ii7/„,'/,/v. Fnlirill, 1 1 Q. B. 6.'), p. 130.
jsco V. p. i;tii; VI. I, 4, pp. 137, 140, and
X 3, p. kS4.
\
i-i
IS.T
ARIMTi'iATlON AND AWAKD.
121
i
tfMdiitiiil hiiiiMlf Mitli iiidfly n)pjc(.'ting to tliu
allowaiHiMif (111 itriii liv tlir; .u liitr.itiir. I'urri/h
V. FnrfKii', l-J ('. r. ."><)».
Where tin: tiino for in ikiiix n\\ .iw.inl iiii U'V
11 »nl)iiii.'.'H ip|)(Tati' iis ;i iiuto jiiii'ol
Rul)ini«nioii, wliirl; \* ii'voi mIiIo ; ami if revoked,
the time for iiiakiiig an award iiMimt afterwards
l>c eidarycil liy the court ; and (he )iirty ni ikinj,'
the revocation will not lie restrained from merely
prodceulin;,' his nuit fmni the |iiiint at whicii it
was arrested l>v the reference /'>if/irii y,
l{u/>.^iii, H ( 'hy. .'ITO.
7. S'lhiiiUKliii liicoiiiiiiij Aliir!''''-.
Where a verdict his hocn t iken liy consent
for jilaintill', fnlijecf to a refcronee, the court
will not, on acconnt of the f.iilnre to nnke im
award, allow indiiiiicnt to lie entered for the
verdict, tlionuh runh failure lie iiii|inted to ilefeii-
d.a' t. U' dcfi nd mt'.'i allorney \\.\.i
asked liy the pi lintid s atloiney to cuusent to ;v
further ciiliigemi lit, and declined ; n'i,i|iplic:ition
li.id licf-n III idc to the ailiitraloifi. Tlie court
held they could do noiliin;; more III in set aside
the loiiditioli.d verdict. Miittl..iii> \. h'l/n , .'»
(,>. B. 171).
Ac;iu<-c«.i, reierriila! ni i priu ., ihcaw.ird
to tie made liy the hit of .liil, , willi Ic ive to (he
arliitr.itor to eiilart,'e, hut. no micIicI w.i* liken.
He eiilar;^! d the time unlil the -.lud of Augiisl,
anil after he iriiii,' the e\ idi iicc ,iiljournc 1 till the
4tli to enaMe dcfiMdants to procure their wit-
nes'-.en. Neither (larty attended a'..; liii, nor took
any Rtcji.i to procnri' .i further en! u';,'cmcnt, ;ind
the plaint ill' gave notice of trial for the autumn
assize^:. I'efcud.ints notilicd him th.it I hey would
move again.;t the pro( ccdings, as the order of
reference w.is yet in force, liut the iilaintilV
went on and took ;i verdii't, defendants not
a|ipeariiig: Held, that di'fendants, if llicy
desired tie" reference to continue, should liavi'
applied for .in cnl.ircement liefore the verdict,
and that liy omitting to do so they had waived
their right ; Imt under the cir iim.stanees the
verdict w.i.s net ••iside without cost.'<, upon an
allida\it of merits. ,!/;//.,■ v. //..;/;/, •_' P. 11. •-".>!•.
•"^ee, al-o, Unlln: n v. I'n.. in. ,S ( 'liy. ,'170, :aipr,i ;
Molt y. /,oi(,'/v. T. 'I'. I .t •-' Vi.t. p. I7-*; <'"ii/.l
V. />'.///.'■., :; t,>. r.. •J7(>, i7-
1 1. \'n:i;r.-.ii:N i . lo i;i:i'i;i;.
1. SliljUi;! ri'iirii'lhl^r. niiit.r ('. L. I'. A.I.
Hy a condition endoivcd on a policy of insur-
ance, the conipany re '.crvcd to itnclf the power
I fif having the, lojia or d.ini ige .ailiniitted to tli.
' jmlgnicnt of arliitiators. .\n action having hern
! Iiroiight on the polic\, and an application mail'
Inndert'. \,. I'. .\ct, m. I(i7, tost.iy proceeclings
Held I. Tint the arhitralion intended hy tli'
t londition was not iik rely a valuation. L'. Th.v
the agrci ment hctween the jiarties was not Vci;,|
^ for w.mt of mutii ilitv, '""I tli''t the eaao earn'
1 within the seone of tlie statute. .'!. I'or iJalton
>'. I'. .!■ /'. , tliat the iilaintill' was a "party
within tlie inoiniiigof tliat seetion. I'roeefidin'i.
Were accordingly staved. Mi-lniui v. Wi^tr,-
/l..<^//vn/fv (■„., ,-) I». K. '.U-J. - t;. L. Ch.imli.
I Halton, I'. I'. .1 /'., and (iwynne. Allinncil i
j 30 (.). 1!. ."iSO.
Where parties hid agreed to refer any fiitiir I
ditl'erences that might arise under a p.irtner.slni
lictween them to arliitration, and one liled a lii!
for anaccimnt, iiijiinelioii, and receiver, pim i,':,.i.
ing» Were stayed under the ( '. L. ['. Act, tliiiii;i.|
an answer had lieeii tiled in tiic auit, and the lulif
eontiined .lUcgilioiH of fraud. U7/i/c v. Kh
- (hy. Ch mill. U I. Taylor, .Si iTildri/.
2. mil' r Can..
L'pon .1 coven lilt ill a lea.so that in ciuso of lirtl
a fair diMliiction .should lie made in the rent, tiT
lie ascertained liy arliitration as jirfivided, wiicrJ
icilher had .ippointed an arliitrator : Held, tluT
the t< naiit w.is not pri'cliided from niakingii iiml
the inediuin liy wliii h a d(!ilnction was tn '.|
made. n ;
; lie linal. In an action for wrongful disiiii.i.ijli
I the pl.'iiiitiir : Held, that the agreeimnt ton
: lieiiig ( ollitcial, and not ;i condition pir.nl
1 to the plaiiililV's right to ;aie, I'fiiild Hot liiii:!
I action. f. '/;;/;/ ^ \. liilliii'jliiii, -21 i}. Ii. .'i'."!).
A 1 I r.
. |i\Sc|; OK Wl'I'NKSSI-.s \Mi
rioN Kf I'A [HK.MK.
I-IIHI'
|Sec :!(1 Vict. e. Il
O.
I'll ,111 application under 7 Will. 1 \'., i
30, for an order on witnes.ses to prodini'
mcnis liefore an arliitrator, it mint hey
tll.lt they ;ire such a.s witnesses would i"''''l|
pclled to prodni'e at a trial. Ctirrn'l v. /i'",
I,. .1. I-.'. ('. I-. riiaml).- Hraper.
.\ii order comiiclling atteiidanee of wilii'
under tint section will he granted on aiiivi*
.ipplic.ition, upon allidavit that the eiiiisi 1
liecn duly referred : that the. arliitr.itor k
a]i]iointid a day for iiroeeeding; .ami lil
eortam parlies (giving tiuir re^ipeetive [ila.'pj
12.>
ARBITUATrON AND AWATlD.
120
• |,,||,,.) lilt' iii'i'inHiii V ami iiiiiti'iiiil w itiit'SBiH
r'p'lhr ipiiitv iiplilyiiiK- '-'"/'"'" V. (';l/„„, ;j I,.
I, ,7 f. I,, rimiiil' M^'Iauii. r„n;>ll v.
r«„//' .'I I' I '-• *'• !'• *'i>""i'' iMiiiHT.
I I'piiii :i hiiliiiiiMriii'ii to urliitnitiiiii lu'liig iiiiulu
I ;.,|,.i- ,,l' .•..iirt, u unit is piiiiliiiL! witliiii the
|„„.i.>im-l '••■'*• ''■•'■.• ■•'.»■ •'• >"' a^'t.Miml.lr
Itl . iMiili"'' I "'"'t'* *" ""'"•' I'riiii'Hs til rip|ii|ii>l till'
latii iiiliii" '■ "' « 'tl"''^'<''^' ri'«iili'lil mil III tliiir
I'l , ill't'""- /'■"'"" ^ .','""/''''///. I vw;/('i())i, r,,,,
II ;|(t, I 'liy. < 'li:iliilp. S|p|;i>'vi',
I \ . Ai.i:ri i: \ ini:.
I, /•;■.,.•!., /;»;/,■.• I,j\,,:.
^■|n.|',. 'V illtlUC' llHii lircll li'fi'l li il, lliilii I' 111 till'
•(, III,, ,,f till' Hlliitintnrs liillMt, 111' riMIl (ii till'
»tl..rii'> 111 1 1'"' '■•'""'• ""' ''"' l'iil>- M' an ai liili'.itioii ulijiiti
:iii im'jli'l:"'',v '" I'liiiiliiitiiiK ' ailii-
latiiiii iiM, liir iiiMtaiiri', In a I'lrtaiii |nr.siiii
uliLiiiii:il'i'iiio ^'"' """' '" ""' "'tiii''*<''i ami
.i,.j Iii4 1'iiaii'i' III till' awaiil, In' i aiiiiut altfi-
«f,ii| uii till' :iinil, ini|ir;nli tin' iiwanl.
fc,„/\. l/./'.i"/""". '"I <.'. li- I^H. !'■ «'■
IcUaii.
I'lie (Hint ;;»'t .i:iiili' all a\uiiil inaili- iimlii' l(!
But. I'. I^li '^' ■'•'• ■'•'' *•" ""' 'laiiiagin to In' |iaiil
:i luiilv tliriiUi;li w Inwi' html tin' niiinici|)ulity
ill i.ijiiiiil a iiiail, wlicri' il ajipi aiiil tlial iin
jDlki' liiiil lii'i'ii K'^'^'" t" till' liiiiiiiii|)ality 111' till'
Cct.tluK. I'- i.'t'"'-
'J. I'liii'i i'< mill ilii/i/ III'.
(a) .t a railway eumiiaiij I'ur iieiiii-
b.iok water, ami than preventing the U'le of
Hiutill's mills, having been referred, the arbi-
Itiir. awanleil £'Mi) damages : --Held, that it
nut be assumed from the fact that the
Uiiuil rental of the plaintili't) mills was only
, lliiit the damages had bei'ii given for more
Ui iix luouths before the suit, and Senible,
It iiibitraturs, when not restrained by the
iiiissiiiii, arc not bound as jiniges are ill a
U'Ini V. annul Tnnil /.', 11
(li't III law.
.;i77.--P. c
Co.
-Burns.
Ill an ailiitratiiiii under ( '. S. I'. ('., e. .'il,
the arbitrators did not take or liie any oral
or doriimintary i\ idi'iire iiiidir s. It.'tS, Hiibs.
Ml, but ri'lli'd 11111111 the Uniiw li'il);!' which two
of them bad nf the |io.->iti 'f the miiiiiei|ialities
towaiils each other with relation to llionev
matters, and iibtuinid the s|iei'ilic sums on which
their award was baied from the bunUs of the
county triatiiier. These sums were shewn to
the W iirileii at the last meeting of the arbitrators,
and (heir correelness was not ilis|Mlteil : Held,
Millicient. Ill /'I '/'/(' ('ur/iiirii>i'iii III' llii I iiitnl
t'liiiHliiri III' Siiiiliiiiiilii rliiiiil mill Ihiiliiiiii, mul
Till I'lii-fiiiriilinii o/ r,il.,„i,y, -Ji)*). li. •JIK,
Sie \ II, I (:i) |i, l.'.S.
(c) '/'il III, II III/ /II. li, 'lililli/!.
\\> acli M a bond bir the |i<'rfiirmalieu by
dell nilanl I', uf bis ibities as collector, Wan
I reb'rrcd :il nisi piins, with the s;ime (lower to
!the iirbitralor as the iiid;',e had to aineiul the
I |ilcailings, and iiiiiler this he .'dlnued pleas to bu
j added, one of \\liirb raised the del'ence that the
I sureties Wile iilicMil li\ all extension of time
j given bir the colleelion, w iiich i|Uestion he referred
I to the court, with others. I'er McLean, ,1.,
I the nbic'liiin Mhniild Hot have been allowed by
the arbitrator. I'm/i/ v. /V, ,//, -.'O l^ B. till).
Sei' .V, c. ,',/ V, »■„•,/,.(-',, -J I,., I. .N.S. II, pKU.
(d) h'y /iiiii.' I'i;,i;iiriiiu<-
llelil, that upon the facts In the case, the ar-
bitrator wa.H iiistilieil ill proceiiiiiii' e\ parte.
I',;,i-/ni- \. .Iiii-r'i:, l.'it^l. I'.. |,S7.
Bcfiiii' an arbitrator proceeds e.\ parte, liu
Mhoiild satisfy himself by [iioper e\ idence that
necessary notice of the appointment has been
served, .>;o as to t nabh' the party notilied to ap-
])eai', ami it should clearly be shewn that the
absence of the party notilied is w ilful ; nor
should he proceed ev |iaite, unless the nutioo
conveys the inforiiiit ion that ex parte proeeetl-
inga will be taken if the party served iloes not
attend, nor if a r.a.ionable excuse is given for
such non-attemlance 'I'lie party pioaecutiag
the arbitration mi'^lit to take care that all proper
iiotiees are served mi the' opposite party, and
should be aide t isliew, if he desire to proceed
ex parte, that the other party ha.i been properly
notilied, and that he wdfuliy absents himself.
A party, thereloie, w Im bad not fullilled his duty
in this respect, was ordered to pay costs, and the
ease was refeircd luck. /// ;t /\>//ir v. hini/i/i,
,'. I'. I!. I!)7. I", i;. CuMiiic.
(i,') Dilijut'iuii Ait/hijr'dii.
Award held bad for dele^'atioii to third par-
ties, ill awarding a di\isioii of property by per-
son.'j to bo selectL' I l>v plaintill' and defendant.
JIm-r'iiiii/ III V. L'I'kuu, 'll t,l. li. Ilk
(b) Erkhiii'i mid ]\"diir.-. B. :{(i2.
On a submission between A. and defendant,
described as executor of B., of all matters in tin
ference between the said parties in referencu i,
the buaiues.s carried on by said A. and B. in (lart
'ursliip, with liberty to the arbitrators to oiiln
and determine what they should think lit to l>.
done by eiliier of the parties respecting the uut
ters relerred : Held, that the arbitrators coiil.'
ortler a sum to be paid by defenilant absolutfly
not merely as e.\ecutor. Miill'i inn v. Wrlflil, \(
tj. B. 40S.
Sec MrL,,,,: V. A'< :((;•, .'l C. V. 444, p. l.j.'j.
(g) Whf)i Vinlirl tiibii.
Where a verdict was taken, subject to be
reduced, the costs to abide the event, an award
for defendant was set aside as beyond the
submission, the arbitrators having power only
to reduce the verdict, and the condition as to
costs givhig no authority by inference to deprive
the luaintiff of them altogether, but applying
only to the amount of costs to l)c ta.\ed. Shoir
v. Tiirtou, 4 (). .S. 100.
Where a verdict Wius taken for Is. damages,
subject to an award, ami the award did not in
any manner dispo.se of the verdict or cause :
Held, not tinal, and bad. liintlii v. Mr/iitiii-li, 4
Q. B. •_'.".!». See, also. A',,,/-/// v. 7.>.^7.,•, 14 (). B.
•.'r)9.
.■\ verdict was taken for plaintill', subject to
lie reduced, increased, oi' set aside, and a verdict
or non-suit to be entered for defendant, under
the provisions of laeC. L. 1*. Act. The award
directed t!iat the plaintiH"s verdict should be
set aside and a verdict entered bu' defendant ;
and it further awarded a sum of money as due
.lUil osving from ](laintitl' to defendant on a set-
oH' :- Held, that the award did not in terms
direct a venlict for defendant for any sum of
money, but even that if it diil sucli an award
would be jiroper under tile reference. Mnrli/n v.
l)H:i„ii. •_• L. .1. .\. S. L'Olt. r. ('. A. Wilson.
.■Vction on tlir common counts. I'lea.s, never
indebted, iiayineiit, and set-oil'. A verdict was
taken subject to be increa.sed, reduced, oi' a
verdict entered for defendant by the award of an
arbitrator, who directed a verdict in defendant's
favour for .*7."iO, under the plea of .set-otl' : Helil,
that he had power to dn sn. .Inhiiilnii \. Aiiiiliii,
•Jit (.1. B. ;t7--'.
Sec ir<7/<'i/i»- V. S.jiiinr, 10 (,». B.
Se.'. \|. 7, p III.
M.
I,VJ
(h) h'lujiiili .t In hi:,, 11 I'ltrhi, i\<.
Where arbitrators were authorized to dissolve a
partnership ; Held, tluU they might, in order
to adjust the terms of the dissolutiun, award
upon disputes arisin;^ as to the partneislijp sub-
seiiUent to the submission. 'I'hivkill \ . Sliiii-liini
4y. B. l,H(i.
As to the power of arbitrators, under a very
general subniiLsion, to cancel an existing part-
nership agreement, and award prospective dain-
I (i) Diri-rliiKi Manner of Poi/ininl.
Arbitrators may order that notes be given in]
! satisfaction of the sum awarded. '/'/lirbll \
\ S/rii,-l,un, 4 (,». li. \'M\.
Defendants gave plaintitl' and her husbaiii.L
lioml in iTilX), conditumed that if plaintiBshuuli,
survive her husliand, they would maintain heiic I
her house during her life, &c. An action broujili
' on this contract was referred. The arbitral';,
awarded that defendants should pay plaint;:
t.TOO, on or bebire the "JOth November, IS.'iL', i:.[
full of the causes of action in the suit, and ut aJ
matters in dispute referred ; and further, tlml
'■ the iilaintitl' should not enforce payment of saiJ
j tTitH), proviil
that it was void, as beyond the authority of thtr
I arbitrators : Held, that there was no absdlKt
claim to the money on the "-'Oth of NoveiiilM.L
as stated in the declaration, but the right vl
1 action was suspended until the 1st of DeceniWrl
j and would then n to pay money t'f (',im,,l>,ll ami firown, '2 P. R. 291. P R^
Richards.
12S
llatiui,.
iiiilaul.
I in ill!
UllCf li
ill \un
to oil lei
tit t.l Ik
the iiiul
irs L'lml.l I
solulul\.
rljlil. i'
15:5.
nt.
given 11'. I
■hirhll
I-':'
ARBITRATION AND AWARD.
130
husliainU
itiff slioul'.
itaiu litv It
on brougk
arbitratiir:
iy plaimii
er, IS'vJ, K
;, autl 111 al:
Lirthtr, tlisi
iient of sau
vespti-tivil;.
Ill estate \i'.
^ sums, thi
,gages til U
i 1st iJfCtUl
u (lel)t, as IE
I pay to tk
h (if Niivoii
le awaril ii
iinl allegei'
iKirity iif tt<
U(i alisiilKt
>^oveinl«,
tlie nj^lU':
f 1 )ei.'t'll!ln:t
utitiii lit tit
so, tliat thi
iiail i'Xoocil«
ooveralileul
ir.lis VieV'i:
V,. •-'(«■
l.laiitssliiiuJ
iiotiaUeV^I
Hue: IWi|
\'. '.'ill.
Viliitiatiiin on ereitimi of town into city.
Jlaiiiiij.' awaril letrosiieetive anil giving time for
^iviiiiiit : llelil, aiitliorizeil. Limiting tlie eon-
Itiiiuaiui' iif the awaril, ami authori/.ing a ratable
ivis'iiiii iif expenses insteail of settling a sum to
iiaiil : Helil, not anthori/.eil. /ii iv Tin
iiiii''(i"il ' '"'iifil "J ''" ' '"""'// <;/ Molillisf.!- iitiil
,1 \liiii,,r III' till ('itji iif Limdiiii, 14 (^. H. .'J.'U.
lleM. ill all aetioii between seliool trustees anil
i'lclier, that the arbitratoi's exeeeileil their
Her." ill avariliiig pavment within thirty ilays.
,„„/,„■./- V. Hull, l!M\t. 15. i-m.
I'lie >iiiM awalileil was ilireeteil to be paiil
'oitliwitl'- whereas the statute miller wliieh the
ifeieiue was iiiaile allnweil a year from the
iwii'l, 111' fi'oi" ''I'.V I'l'^' "f I'liui't onlering pay-
iit ; Helil, that this part of the awaril, wliieh
s clearly bail, might be sepaniteil from the
t III n rill ('iir/iiiiiifinii iif'tliiCiti/ 11/' '/'iiriiiihi
(i. recovered a jinlgment against M. undC,
).m a iiiitemaile by them. One.], was also saiil
' ,ave been interested with them, and liable
ir tile ilebt it represented, though not ai^tually
(iitv til it. It wa.s also said that he was in
til partner with (!. in the transaution. M.
c iarjie (layments on the judgment, but C.
id nothiiy. L'pon a referenee of certain mat-
's in ilispiite Ix-'tween .1. and M., it was left to
arliitiatiir, amongst other things, to deter-
,iu- wliL'tlier ornot M. or .1., or which of them,
iahle, or to what e.\tent, in respect of the
ninciit or the promi.ssory note wliereoii the
iiiK'iit was recovered, and to make any orders
iiiii the arbitrators should think proper to set-
the liabilities [of the said parties in respect
reui. The arbitrators awarded, that J., as
men liim and M. , was liable to pay all the
aiii'u il nioiieys still unpaid upon the judgment,
tliat J. should pay and satisfy the same with-
(lUc ealeiidar month, aiul should cause the said
iiiKUt and writs of execution to be satistied
Jiscii.'irgeil, and satisfaction to be entered on
roll iif the said judgment :~Held, that the
•r [lart of the award (which was objected
»:i.s authorized. In rr McLviiii v. Jmici
i. S. :<. '.W.— P. C.-A. Wilson.
shall HI"
■ n I iiiliii>ri
lelliliiri'
\4
li^tStiinii-' y. Wihulii; L'OQ. B. 4t)i(//(i/i v.
hS'rl:!; ol'hy. 501, p. 155.
(j) (/< Paiticiiliir
irllllilllj III /.(/(«'. 1 -
C«SCJ».
Award of urbitra-
Lf a I iiii™
lilraliiv^ '
ly ; Imt it«
lieciileil M
(ley t.l 1'..
l)e iipW
IH. VRJ
lii(/t;'*
, under .1 bjiecial submission, to determine
^title tu laud in dispute and cuncurning certain
-Held, authori/ed. L'lkntt v. Wliiti-Uinl,
H '.'iil.-l'. C.-Jont'S.
Uuire:— Have arbitrators the power, under
fict . e. .'IT, and 10 & 11 Vict., c. 'J4, to award
Hi'mii'iitial damages. ('KKo/ii'^yioiif/v o/' Publii
|ri.< V "«'/,'/, t> Q. B. 33.
^tld.pereiir, .McLe.r.i, J. ,dubitaiite, that under
Igentral words of the submi.ssion in this case,
lority wa^ given to arbitrate aa to the fee
Bltui land in dispute, if a mutter in differeiice,
Ichmlut be presumed, litncdul v Piirh, 1
'~3T0.
jiaiiuift iield from defendant a lease of a farm
It rm unexpired. Flaintiff and defendant,
y
with 1). and M., became bound to each other
by bond, with a condition reciting that the
parties had agreed to separate, and cancel all
arrangements theretofore made, and h'ave all
controversies between them to the arbitration
of T. and P., and slumld they not agree,
to choose an umpire whose decision should
be final. The umpire awarded that defendant
should release and give iiji to the plaintitl,
"the term of years, as agreed to in the
submission, and also deliver up the stock
of farming utensils in proiier order, and without
further delay, and that the lease then held by
both parties of said farm be immediately can-
celled :"- Held, that the bond was not in itself
a surrender of the term ; that even if so intended
the term would not be surrendered, for the
bond could not be held to be such a deed as is
reiiuired iiy 14 & 15 Vict., c. 7, s. 4 ; tiiat the
award would not amount to a dei i of surrender
by the defendant ; and theiefori vi.at the plaiii-
titi' could not eject the defendant. < i' Oiiirjlii rti/
V. Frdinll, 1 1 t^. H. (i5.
In this case the arbitrators awarded a certain
sum for the defendant's inteicst in the lands as
lessee, ' a;:d for the lumber taken by the said
company now piled upon that part of the wharf
taken by the said company" : - Held, that the
arbitrators had no power to award coinpensatioii
for the lumber. (I'na/ \\'i*».. <^iae. Sl'innl v. Ihuirii, •_> I'. H. loS.
— I'. ( ' " L'lurns.
An action against a r.\ii>''v company fi^r pen-
ning back water, and tlius preventing tlie use of
plaintiff's mills liaving been re. erred, the arbitra-
tors aw:iriiril t'.'17'> daniai'.'s : Held, that it
could Mot 111' assunieil from the fact tliat the
annual rental of tiie plaintiil's mills \Nas only
i.''_'50, that till' damages had been gi\en for more
than si.x montiis before tiie suit. 'Ilm v. Grund
I'nuik It II'. <■•>., •_' I'. |{. :t77. I'. ('. Burns.
Where tiu' < lowu l.amU L'tp.41 iiiieut, in dccid-
iiik! to allow one of tvio .ijiplicants to ]iurch:ise
land, directed that tiie amount properly payable
by him to the other :>liould !»' ascertained by
arbitration ; and the arbitnitoni found a certain
sum due, but directed, in the event of the payee
failing to di-hvcr up pojscs.iion to the other in
two month--, that *-H)0 should bi' dc'ducted from
this amount : -Held, beyond lluii' authority;
theii duty being simply to find the amount
jiayable. JiariH^y. lioo,,. ,•, 10 Chy. ri32.
Oilur r,(>r,.. ] Where a tul.mission recited
that A. agreed to L'i'^e up his stock in trade to
15., and to assign him all claims and debts due
ui resjjcet thereof, on payment of such sums as
arbitrators should decree ; .and they awarded
that B. should pay a certain sum, and assume
the paynicnt ami re-*pon.Hibility of debts due by
A. on account of said J^tock : HeM, tliat the
award was warranted by the submission, /'■ic/v |
v. /,;-7./-, K r. !! \i.t". I
llebt on a sulimis^iiiu bond of all matters in
diH'erence. I'lea, no a«aril. The plaintiH' re- I
plied, settini; out an award oa one ni^'tler, for
the payment by defendant of .i certani Muni to
plaintiir, and a\i'ned that the parties had agreed
to withdraw all but that niattri fimn the arbi-
trator.'', ;ind to settli' the iitlnr matters them-
selves ; but if they iniilil not, tluli to refer them
back to the arliitrators, who, within the time i'or
awarding undi-r the submiiiinti, .iv.- irded on the
: other matters in favour of the plaintiff ; and tlui, i
I set out as a breach the non-payment of tlje monev
, under the aw.irds. On demurrer : — Helil, tliji
! the first award was clearly good : and— ^eniUf
the second was good also, liidii/ v. />riri'ii/„.r
I 2 Q. B. ()5.
I In nroceedings under l(i \"iet. e. 190, to a.^tvr
tain the amount to be paid fur materials f(jr ti,
construction of a roatl, the arbitrators caim ,:
confer u^ion the company a prospective right 1 .
awarding an amount as a compensation for in: t
rials to be taken at a future time, a'dlui,,
Cli'ijhoni, 7 Chy. 8.*].
The arbitrators aw.irded damages for materia!.
taken generally, not for the purpose of the rui.|
only :— Held, ultr.i vires. ///.
I Hehl, under the special circumstances of th'.l
I case, on demurrer on various grounds, that 'h.l
1 declaration and award were good : tiiat the uthtH
I defendant was liable for n r. \\'l,<,l.r v. Muri.hii, 2 I'. I;,;;
I 1'. C. McLean.
j ( '. hail sued B. on a contrart by which he ario
' to build for B. a dam, B. to tiiid certain iiial'l
rials. On a refert'iu'e of all dill'erences relat:t.l
to this contract : Held, that the aibitiatcfll
might consider claiiiis by B. ag.'iinat V. iw'nwM
. out of the contr.ict ; but that .a dirtvtioii tu inil
money to K., a ^itringer to the reference, cualil
not be upheld. In ;v < 'niii/il'tll v. /(/..
P. R. 2'tl. P. ('. Rich.irds.
The suliiiiiatiiou refened the caUiie aii.iid. S/,ir<,rf\: ll'.'.^/. c, 'J0(,». H. HiO.
I.. it'L'iivtrcd a jmlgment ai^a'M.it, M. and ('.,
«ii ;i note made liy them. One .1. was also said j
have l)een interested with tlieni, and lialile [
rtlicdeht it rcjircsented, though not actually
1 ]i,irly to it. It was also said that he was in
' 'd -i p.irtner with (J. in the tran.saetion. M.
ill- large payment.' ,i i he jmlgment ImtC
Kl'l l\iitliin''. I'pr. it T.;fereiict; nf certain
cr^ in dispute bctv.ct.a .1. and M., it was
Bt t'l til" arliitrator.s, amongst other things, to |
jetrniiiit w III ther or not M. or .'., or whii h of i
Km, «a, lialile, or to what extent, in re:>pcct ■
Ith' ju'lginent or the promissory note w hereon i
' jii'lgment was recovered, and to make any !
|fi> wlif- h the arbitrators .shoulil think proper
I ,«ettlc the li.aliilities of the said parties in
fspfct thereof. The arliitrators awarded that
liftween him and M., w,as liable to pay all ,
, talaiice fif moneys still unpaid upon the
(kiiunt, and that .1. slioiiM sliould jiay and
Itisiv till' same within one calendar nmntli, and
iwilil cruise the K;»id judgment ami writs of
.tciiitimi to be sati.stied and ilischnrged, and
lisfaotioii t(i be entered (in the roll of the said
pk'UKiit ; Held, that the latter part of the
Infl (that which was olijected to) was not an
< iif arliitratorK authority, /ii n Mrl^mu
t./ , i I,. .). N. S. -JOG.- 1'. f. .A. Wilson.
llU aurrcnieiit between the plaintitVs and de-
111!, Ihc plaiiilids agreed to draw and deliver
tun liij^'s im the ice for deftiiilant, on or be-
I tlu''.'Ol!i of .March then ne.xt, for which the
[inilantH covenantcil to pay no much per log.
m\^ ;iniviiled that, should the (deighing not
1 ^•iml tor fiiur weeks thereafter, the plaintitt's
111! lie hiiuiid only to draw such proriortion i
he lugs iiM the time of sleighing should bear
lio I'liiir wcekK. liy a Kiibinission under seal,
titiii'.' tills agreement and that dirterences ex-
lliircspc't tlieia of, ani' if the advances made
In III liy ilefeiidaiit to nlaintillH, all such ditfer-
ps wiTi' ret'erred t arliitration The arbitra-
lawanlcd tiiat there was due from defendant
jilaiiitills, in resj^ifct of said agreement, ?S(!(i. \
■iiia.tinii on t : s award, defohitanta pleaded
^'"ai'l ; and one of the urbitratois, as a wit-
nens for the defence, said the evidence satislied
them that, o.^ing tn the ,aiow, the plaintifl's
could nut |iroiced with the uurk and so notified
the dcfcrnlaMt, wliii told tliem to go on and they
.'iliiiuld lii.M' nothing; and tliat mi this under-
standing the arliitratiiis piurccdcd, iiid awarded
til the pl.iiiitills the costs of drawing the logs,
thinking tliey h 111 a right to do so under the la.'it
diiuse of till- agreement. No objei tioil wai
made by defciid.illt or Ills counsel to tllO rece]i-
tioii of the evidenee of such loidertaking, or that
it was a matter not covered by the reference : -
Held, tli.it the arliil r.itors had exceeded their
jurisdiction in awanlio;; Mioiiey to the plaintiff
for work done undcf I lie verbal .lu'rccmcnt, which
was not within the ladiiMi. -ion ; tli.it tin. ■.amount
not being sepirible from the rc;-.t, the award
could not be Mipportdl : and that such exces.'^ of
aiithoiii V .iHorili d a eood defence to the action.
■/V//// v.'r/„ni,l;rl'iii>, ;!1 <,». K, "J!*!).
Where ,i submission was m.ide toan arbitrator
" to determine which of the ■xi'\i\ sever.d itenii
iif I'laiin the est. ite of Mrs. II. is liound as matter
of law to Jiay :" Held, th.lt this contined tlic
autliorily to de. idiii',' the' ipiestion of legal lia-
bility, and did not aiithnrii'.e the .arliitrator to tiinl
sums pay.ibic, .[nii.-li-'iii'j v. ''ni/li;!, '.' •'hy.
• 'iKunb. I-JS, !(;;{. Mmv.U. \ .inKoiighnet.
f-e' 1 , ."i, II. I 'JO.
(k) <■;■'<.
Wh'-ie the costs of tin cause, reference and
aw.iid Were to abide the event of the cause, and
the arbitrator.; asse.-ist d the coats of itrawing up
the aw.iid ,ind tie ir fees ,'it a certain rami :
Held, til it merely as-iessing the amount was no
ground for .-etting aside the award, /io///' v.
s-iessing I
^ ^ .iside the ., . ,
//'///i/./i ,■,//.., I ]'.]{. 187. I'. ('. .McLean'.
Where the co.sts of the cause and reference
w( re to abide the event, and the ,iward Hxed the
costs of the reference and award : Held award
hail as to tliat ]iarl. ./.•(/■ i v. I,''ii/, I I'. II "JIT.
r. ('. Itiinis.
Held, in an .;i lnti'.ilion bctwrtn cliool trn,^-
tecs and teaeln r, that the arliitratora exceeded
their )iowers in awarding costs. Vinifhinti v.
Hull, \\)<). I'.. {V:,X
l>\ a submission tlic costs of I lie "relcrenco
and award " were to be in the discretion of the
arbitrators, and they directed th.at defendant.^
should pay tlie costs of the "sulimissioii and
aw.'iid" :" Held, that the award w.as linal,
for that the costs of the submission included
the co-its of reference. The submission and
award biing set out in full in the declaration,
(puerc, whether this objection could be raised
by plea, or whether defendant should not have"
deniurrcd. Kl'iruml \. 'I' III ('iniii'riiHiiii i;/" lln
Cuiiiity III' Mii/illiHi.i, \'M). II. io.
.\t nisi prius, in an action for niilii|uidatcd
damages, a verdict was taken for tf.'ilK), subject
to a reference, with power to the referee to cer-
tify for costs as a judge at nisi jirin.s. The
referee reduced the dam.iges to .'r^.'W. ")(), and iiindo
his award without certifying; Held, that ho
had no power to certify afterwards : (^mere,
w hetlier lie had power to certify for the costs of
the coniitv or internu'diate court. Smith v.
/'//•'".-, 8 i,. J. 7'J. ('. ].. Chamli. -Hrapcr,
!f
t;ii
135
ARBITRATION AND AWARD.
i
I
Held— 1. That a certificate for full costs,
signeil by arbitrators after they had made their
award, and had finally separateil, and when not
all together, could not entitle plaintiff to full
costs of suit. 2. That the words "costs of
suit," as used in an award, have no reference to
any particular scale of taxation, and so cannot
per se entitle plaintiff to full costs. 3. That
after entry of judgment by plaintiff it is too late
to move to refer back to enable an arbitrator to
certify for costs. K'fp\. fiiniimniuf, L. .1. 1.57.
— ('. L. C'hanilt. Draper.
A cause was referred at nisi prius, and a
verdict taken .subject to the award. Costs of
the cause were to abide the event, and the arbi-
trators had power to certify for costs as the
judge at tho trial could have done. The award
redneed the verdict to .St>8, and directed that the
defendant .should pay the plaintiff's costs accord-
iug to the si'ale to bo certitieil by the Court of
Q. B. : - Held, tliat the arbitrators having express
jiow':rR to certify, and having oniitteil to do so,
a judge in Chambers could not order full costs.
C('t/drr V. (lilhrr/, :< P. n. 127. C L. Chamb.
—Wilson.
See JvrUnn v. Amhlev, 8 I/. .1. N. S. 67, p. 185.
Sue I.K. p. 182.
(I) Al/iiiiil, 17 (»>. B. 4."),5.
Held, under the facta of this case, that arbi-
tr.ators acting under ti>e Sc hool Ait, hail no imwer
to resume roiisideration of the matter, and issue
a warrant to lew, after having nnec made the
award. V ^ iiiiil Ji' iiiiaii rri/iitii.
(.See 29 Vict. c. 32.]
The School Act, C. S. U. C, c. 04, does n"
provide foi- the p.iyment of arbitrators, or of th
costs of a reference thereunder. fVntivrv. HhI'
10 C. P. 3(50.
Arbitrators' fees m.iy be referred to the nii.;ter|
for taxation. Sroft v. Grand Trinik R. 11'. (
3 P. R. 27 fJ. -C. L. Chamb.— Richards.
Whether n.amed in award or not. /,"'(/;,
Russell, I P. R. 6.5. -P. C. -McLean.
Where the Master refused to tax an ail.itn I
tor's fee upon proof only that a note had lie's I
given to the arbitrator for the amount, a juili;e|
in chambers refused to interfere '/''//•'•■"
ir«rf/, 8 L. J. 21.— C. L. Ch.amb.— Drai)er.
Arbitrivtors h.ave no power to fix the aiiK^mtl
of their own fees. McCiil'och v. ]Vfiiti\ ;t3 Q B I
331. See also B«i//<' v. Ifnmphni/, 1 P. R. i^;[
—P. C— McLean.
A County Court judge, on a reference to iiml
under sec. 138 of the C. L. P. Act, is not entitkil
to any fees as arbitrator. On a reference to jiiel
at the trial under sec. 160, merely addiii" to tJ
n.ame the designation of ( 'ounty Court juai;e, huT
not referring the matter to him as such judge, li(|
will bo entitled to his fee.s. Wnotl v. /■'(x^c, (ipf
R., not yet reported. —C. L Chamb. — (ialt.
V. UMriRF OR Third AnniTHATor,
After the arbitrators .and umpire Irul liciril
the plaintiff's witnesses, the defendants rctn!«|
to give their evidence, and thei r arbitrator \ '■nil
not concur in the award. The umpire, in c^tl
sequence, gave notice to defendants to prodiitl
their witnesses, but the time which he gave tml
too short, and he awarded on tho cviikneil
■already he.ard. The court set the awai-il ,x«i4|
Proud/oot V. Ti-olto; (' O. S. 1(1.1
Where arbitrators dit'grce on some itciiw, aw|
ca'! in .an umpire to give his opinion tlurKl
and adopt it as their own, he nei'd not sliintJ
a\.ard. In iv Cui/li ;/ mid MrMallni, ,'{(,•. li l:'l|
— P. ('.--Hagerman.
( Construction of submission lioiid, as tn « li. •
the umpire therein named liad the ]io\m r-m
ti- report npfili the state if certain pniiii.-i
further than this, to estir.i.ite their \.iliii j
make an award thereupon, .\li- t !
arbitrators, "and should they not a^-rn,
choose an umiiire ;" Held, th.at tli'i uiui*
should have been appointed by the paitii.-,
by the arbitrators. U'Dotajhcrty v. l-'riUni\\
U. 11, 65.
AKBITRATION AND AWARD.
138
A submission was to K. and M., and such
[person as they should appoint. The affidavits
I were contradictory as to the fact of a verbal ap-
Inmntment of C, and there was no appointment
I in writing proved ; hut it was sworn that he was
lohosen hy defendant, as one of two proposed l»y
Iplaintiff, and that he sat with the others and
Ivnted in defendant's presence without objection.
Ilhe court refused to interfere against an award
IbvK. &f'- 0.niission it was proviiled
fcat arbitrators should appoint an umpire in case
ilisagreement, their appointing such an um-
Jiire was held, on motion to make the award a
ale nf court, sufficient evidence of their having
iis.igrt*ed, without any allegation of that fact on
affidavit. Whilt: v. A'/(%, 2 ( 'hy. Chanib. 452.
-Taylor, Secrctnnj.
The reference was to two arbitrators, with
»wer for them to appoint an umpire, who was
make an award if the two disagreed ; an
npirew.is accordingly appointed ; and, flicarbi-
Mtnrs (litl'eriug, tiie umpire made an award : —
hel'i, th it each party was entitled to the free
liilgnient of the two arbitrators on the matters
liH'ereiice, as a condition precedent to the
Bipirc's authority coming into force, as well us
|kf-ir free judgment in the appointment of the
iipirc J and that one of the arbitrators holding
rivate conferences with one of the parties was
"cient to avoid the award of the umpii-e. In
Inimtn v. Ifiitr/iiii.ton, 1!) ('hy. 84. See
!>,/./;/ V. /...v^c, 14 Q. a 259.
Where arliilrators disagree in some items, and
■rinv the investigation call in an umpire to
his opinion thereon, and adoi)t it as their
Itn, he need not sign tiie award. /» ir f Vr»//> y
'}lrMiil/,t,, a Q. B. 124.- r. C. Hagcrman'.
\'l. .V\v.viti>.
1. /'illl' ItJ Illllh'ilHI.
jiiiliiiii.Hsinn iiy bond. On the day limited the
litrators were prcp.ircd to award, but .ill
ttii's iK'licving the time would not expire until
Jt ilav. di'foirc(l the ]iublication tlicn at
jfniiiaiit's ni|uest, and heard further cviilcnce
' l"itii sides lu'Xt day, and tlicn nuide tluir
8n! IMil, that tlii' extension of time w.ts
jMpil s^bnlis^ion, and tliat assumii.sit was
liitaiiiaiilc th.-eou for ' i, performing the
iril, altlioiij;ii no action world lie on the bon«l.
JI'v. Ahvtuj, 4 0. S. 375.
1 aprcruu'ut eidarging the time need notcon-
a oin.scnt that it may l)c mad(( a rule of
jrt, as Well .-vH the submission. ( 'luinks v. ( 'li'ix-
?'. 4 0. S, 121.
Miiri the subuiission is, that tiie ;iHard shall
liWivia'il l)y a I'crtaiu day, if it lie ready for
delivery by that day, it is sutticient. (jalhralth
V. Woilrr, E. T. 2 Vict.
Where a verdict was taken subject to a refer-
ence, and before the time limited for the award
expired it was enlarged by rule, and afterwards
by consent again enlarged :— Held, that the award
was good under the last submission, although it
would have been invalid if made under the rule,
and the enlargement by consent might have been
made a rule of court, as being part of the origi-
nal reference. C'hnrle-i v. ffiiTsnn, T. T. ,1 &, 4
Vict.
The enlargement must be made a rule of court
as well as the original submission. Mnxrcnr v.
Chnmhn-x, 4 Q. B. 171.
Though no power has been given Iw the refer-
ence, the court, notwithstaniling, under 7 Will.
I\'. c. ,S, s. 20, have power to enlarge in their
discretion. Joiu-s v Rnoa^ll. ."> O R .•JO.?.
A rule issued an of Easter Term generally, to
enlarge until the last day of the tenn :- Held,
to relate back to the first day of term, and to
iperate as an admission that the time had not
i ,; 1 ij. ;.. .. #4.. ~ r\ Ti ..n..
Hnwb v. Diigi/an, 5 Q. B. (),3(>.
then expired.
Where the rule of reference and an enlarge-
ment were m.ide rules of court, the court refused
to attach for non-performance of the award, as
the enlargement was not shewn to have been
assented to l)y both parties. liutlirni v. /{ii/h
r,',,, 5 Q. B. 273.
A rule making an enlargement ordered iiy the
arbitrators, a rule of court was set aside, ,vw/,7i
enlargement not having been consented to by
both parties ; luit the award was upheld, the
parties having verlally assented to enlargement.
Kiilln-ni V. L'lillim,, 5'Q. B. 27li.
.\n award m.iy be made before the time to
which the arbitrators have enlarged. Tniti-ij
V. IIu.hj<-it, 7 Q. B. 5. -p. C. -Draper.
After expiration of the time limited, arbitra-
tors cannot, without (even if they can with)
the concurrence of both parties to the submis-
sion, make a binding awanl. Riithn u v. liuth-
vrtt, 8 Q. B. 12.
lU.claration, lirst count, that dcfcnilant, by
bond, agreed that one (.'. should abid(> )iy an
awanl respecting ditl'ercnces between ('. ana the
plaintiff, if m.ade lieforc the (Jth of .liine : that
the arbitrators, with the consent of ('., of the
defendant, and of the plaintitl', enlarged the
time to the 1st of .hily, ami m.adc their award
on the 12th of .Tune, alleging non-i>erfornianco
of sucii award. Second count. -That defendant
rei|uestcd plaintiH' to extenil the time, and plain-
'i(V, on such rcqueHt, and in consideration that
tlic defendant promised him to continue bound,
anil that ( '. or the defendant would perfonn the
award, agreed, for tlu; coiivenicnceof said defen-
dant ai:d ('., that, the time should be extended ;
setting out the !'...ai(i, 'cc, as in the lirst count :
Ilclil, on den iirrer, both counts bail, as shew
ing no valid enlargement ."SijIoh v. Woo'l", 15
Q. B. 585.
Held, that a verbal consent to an ciilargemcnt
of the time for making an award is Hiitlicicnt
miller*'. \.. V. Act, s. 171. Joxtx v. I'l-iiilifc,'!
L. J. N. S. 205. !'. ('. A. Wilson.
The declaration for iioii I'crformancc of an
award set out in full a deed of submifrsion to
■\
13!)
AKIUTRATION AND AWARD.
II
m
1 ; r
arbitration In twecii |il.iiiilitr .iml (Icfciiilant,
which doiil imiviilril tli.it tlu' iiwaid .slioiild lie
made on or licl'orc Iho l.st ol •'iily thin iii'\t, or
Mich liirthir tiino as thi' arl)ilrator.< liy uritin;,',
endorsed on Ihr suliinis.sion, iiii;!,dit I'loni tinic to
time appoiiil. It wan then axcircd, tlntiil'tor thi'
arhitrators h:id ciitcriil n)ion the nfcunci', the
jilaiiitill' .iiid di iViidaut, l>y writing' under their
lianch!, enlarged the time tor making' the award
to the \»t of Deeemliri-, and tlie award was
made on the ,"Olh of NoMinlier. Kourth jdea:
that the eid.irgeimnt nirntioned \\ is not innh: till
after the 1st of Inlv, and when the arlii-
tratois' antliority hail leased. |{e|ilieation, set-
ting out tlie endorsement enlarj^iiij; the referenee,
and averring,' iliat lli'' pai lii's, with a fnll Iniow-
lodge of till' fai'ts, ii|i|peared i nlisi i|iientl,\ liefoie
the arhitrators, and |iroeeeiU'd w itlmiit olijeetion
to the enlargement, and afterwards the aw.ird
v.?" mnde as in tlo' diilaralion mentioned:
Hchl, )i])on demnnir, r"S'!,iit 'h" aetion, if
founded niinn lli<' dud, must fail, the enlarge
ment not henig in ai eordanee witli the deed ;
Imt, '.'. 'I'hat setting out tliedeid in (hedeelara
tioii did not neeessarily maki it the hasi.^ of the
aetiiin, for it might lie (leafi'd as indueement ;
and the deed and tlo' riiiinn^lanres follow ingil,
read together, ;;liewed a \,ilid award on a |parol
rmbniission by the (lartii.., ami atf'oided a good
cause of action. The diilaration w,is tln'nfore
held good, .i.'i re.Mrded the eiilargiiiient, and the
frmrtli phabad: Meld, al.'i, th.itthe re|ilieation
was not a dejiaifiii'' ; but that iis the di'elar.ition
fihewed a le w snbnii-i-ion by the parlie , the faits
in the leplieation as to the atteinlaiue of the
partii ' after the rnlargrnieiit were immateri,Tl,
and tht rcfiliiation thrirfove bel. M,Citll,-,h v.
Whu>, 'SMI B. ;;;!i.
An arbitrator ha\ ing f.iiled, ov.in.; to tie' lof.i
of the papers in the eau"e, to niaKi' hi/, award
within the tiuii' limited, a .jiidf'.^ extended the
time under*'. I.. \\ Aet, e. i'J, :.. Ml. .Itilmlw
\\ Aiiij/tii, .■> 1'. i;. li'J. < 'h.inib. .\|orri.>:iin.
\Vhere tin time for making ,ui .lUMrd under :i
PubmisMon made an ord( r of i mirt has exjiired,
and the parties afterwaids nieel, by eon.sent,
.siieh meetings operate as .i mere jiarol siibii.io
F.ion, whiel) is rcvoealjle ; and if revoked, the
the time for making an award cannot afterwards
be enlarged by the court; and the party revoking
will not be restrained from merely jnosecutiiig
the suit from the point at which it was arrested
by the referenee Hitlhrin v. Rumui, SC'hy. UTO.
On applying, for an order to enlarge thu time,
fheorigin.il submission should be prodm'ed, or
if in the custody of the opposite p.irty, it inil.st
lie shewn that he refuses to give it u|) ; it is not
sullicii'Ut that the party apiilying swears merely
that ho < aniiot jirociire it. ./(iJiiii w Far'.', I
Chy. t'hamb. •JGO. - N'anlvouglinet.
■_'. Wli'i f^lioiilil ilniii' nil.
It is not desiralile that the .attorney of eitlur
party should draw ii|i the a\\.'ud. .Mtmli 7 v. An-
da-sun, '2 I', It. ;!."il. I'. < '. Kieiiard.s. '
15. Fiiriii !•'.
All matt ^ ill dilbieine Ik tween the plain-
tifl's and dclcn '.iiiL huiie: b(..,n referred, the
, aw.ird w.'is that the defendant .should .stand fii||.,
, .icipi^lteil and diseh.Trged of and from all ;ii, 1,
j matters : Held, certain, final, and cnnelii.~iv.
\ /,'ilini >i lit. v. /'iiiiiriii/, I I'. I!. r.K. P. C
I \lel,eaii.
■An award (hit (lie plaiiitiU's li.i\e no e.m .
jaition ag.iinst del'iiidant : Held, ..
.1 verdict, the award was, " I am of opininii th '
the defendants are entitled to the Mrdirt in tl|.
c.'vii.se, jind, by the antliority vested in mr ,
arbitrator, conlirin tlii.s opinion, and dei idi' t'
case neeordingly ;" Held, that the awiird ini-r
. be upheld as ,111 iiiformal expression of opihi..;
in favour of defend, iiits, there being no e\pri
I direction to eiitera \erdiet. ('n ii/litnn y. /;,,,„
\'f ill., I I'. 1;. ;i;;i. C. I,. Chaml.; Kiehul .
■\ nietnor.Hidnm in wilting, signed by arl.i I
trators, as inslrie non., 1-. .: : ••b.'itor to drnv
.award : Meld, not to be a binding iiward. .s7m.-|
v. .Mill h ,11, 1:1 ('. IV Jl'.'!.
l>„,
.Url.'ir
1 1 ( ' !•;. I I .',
•I. I\..ii'iilil>;l.
Whire the siibinis.'.ion as to noino nf tl-l
(|ue- tions e.xpres^lv et.ilus tint the majority nuTl
aw.ird, thi.i iio.ver, though not repeated tliroii);li I
out, exli nd. to ;dl mritterr, referred iipwl
which the irliitrators cannot agree, rimi
V. .sini'li.iii. ■( <,t. 15. i:{(;.
.Vrbitrators having r.igned a memoraniliun i
their jud,:^ient at the s.ame time and place, m;:
c.\cciile tjic more formal award se])aratt]y an;
at ditiereiit times, but within the time aiiowt;
William-i \. S.,ii,ilr, 10 (,». H. 'Jt.
Ser.ible that an olijeetion th.it two of (||. n;
trators in.ide the award without iiotiec to trl
tliii'd, cj'.n be taken advantage of in an .iuh
on the award. Sniiih v. (Inwiji , 12 (,». 15. ?,]v
•leld, under tlie lircumataneos of this .
not a fatal olijeetion that the award Iiiul I
signed at ilillerent times, and when the ;ui
tors were not all present together. ./")/'
A',;./, 1 1'. w.-ni. I'. V. r.urns.
Where a Kubniission is to two, and surh tliiRl
person as Ihcy shall choose before piiiiocilw:!
an award by the twd only, the third imt li.ivr.l
acted, is liail. Slmiii v. //alihii, U (,1. \',. m
An award executed by two of three aihitriit'nl
at diircrciit times and places, and after tlio tintl
exiiired, cannot be supported, i/i// ^ v. /I'/.i
tJ C. V. .VJ.
The reference w.as to two, with pu«';
appoint a third, the award to be iii.i.l'
any two. The arbitrators met, ami t«
them determined to award in a p;irti.ii:.l
way. They were afterwards told that it '
out of their jiower so to award ; and they th'^
at a subsei)uent meeting, altered their ili '■
The third arbitrator was not present at tli'
meeting, ;inil it apjieared that he had heeii '
lied of the intention to meet ag.iin, biitiinir
iiotiee had been given to him of the tiiu'
jilace of meeting, nor of the intended aitni
in the iiwanl ;— llcld, that the award iiiii>!
141
lii'tns lo : that b
|arbitn.'orof thai
Itwo ma. ing the ;
Innt eciiisi.'er his
Igiiil then .ore he
|t«i'ii .' .e him to
Ipriity of the proi
|ri ilcDiiiiiilil iiihI
The three arbil
net .iiid distus.si
■■larated, unable
biiijent aa liiial. 1
lor one |>irty wn
jiKiiiiits foiiud 01
oii'iit appear on tl
Ihey might he abk
loui.. stating that
^i.'s ciilkMgue.s as
i;it tile iliiinaiit
Iwaie iif it. r. ai
Jicatioii, and deter
Ifttiee was I'iven te
(lays afterwai
U'tlitrcoiisultiiigli
|., .uid Morriaou,
tlitr tun arhitrato]
nd i>i their intcnti
ff.ird. Per Drap
loiiiiil to do ao, for
nd finally umlerstn
pe letter disclosed
le award was there
fraper, ( '. J., dis.s.
tl'iUl (if Tm-untii (,
lllii.l, under the e
, tiiat tile notic
tiiiuttiiig to niak
but. Aiiiln-s III V
llkifart)-.
Il'iiiler a suhmiasioi
any two, where
jough to he exeeu)
Wilted by two only
[all three fur sett
til to the one who
jfs .ifter ; -HeM, ii
R.370, -P. C.
IWhere an award
llitiators, and afte
Ited, ami the other
In- letter, pub
t'd upon, it was
Id havj met for
deuce in such a cas
|di9seiitinc arbitr;
ilind. ,/,f„//v, 11
Ml ^cardfuracert.!
i-e entered fnr th
11 filed f,,r the
. T. r. m, \
riifieaii award fix
-i'l'i't' "•" it, is III
t. II III/, I, y, II
hlKieiices having
"fj I'll the nlaintiff'L
Nikli clefeiulant h
Sti I tci p,iy plainti
ui
ARBITRATION AND AWARD.
U3
lict ai> I'i • lliiit 'jy **'-'"'^'"*3 uotiie to tlie thirl
larbitn.'^or of their intention to meet again, tin;
Ilwii ma. iiiK the award had ahe«n that they did
|ni>[ iiiiisi.'er ids ilechiration of dissent as liiial,
laiiil then inre he shouUl liave liad pr(>i)er notiee
lt() til ■'•>■' ''•'" ^" eonfer witli tlieni on tlie ]iro-
Diiity of the proposed ehanye in the award. ///
Ir, ,\[i-Doiiiilil (iik/ I'nsiinl, l(!C,>. IJ. 8-1.
I'lie three arbitrator.-!, ("., I)., and .M., having
ct and diseiissed all the matters referred,
tiiaiated, unable to agree, -M. expressing his
lissent as linal. On the ne.xt day the attorney
(or one pirty wrote to D., ro(juesting that the
niiiuiits fiAiid on the dift'ereiit heads of elaini
ni'lit appear on the face of the award, so that
hev' nii"ht l)e able to obtain the opinion of t!ie
mt- stilting that tlie letter was intended fur
colleagues as well as himself, and desiring
hut the il.iiinant's attorney slioiild be made
Ivtaie of it. f. and D. considered this cominu-
licatioii, and determined to disregard it, but no
If,*;, I' was I'iven to M., and an :iwiii) ''•■,.. ,.,o.I,.
, ,l:iv8 afterwards by (". and I)., without
mtliiii^'oiisulting him in any way. I'er llagarty,
.Liid .Morrison, J. — It was the duty of the
jiir two arbitrators to notify M. of th's letter,
nd (ii their intention to settle and execute the
»-,iril. IVr Draper, C. .1, — 'I'hey were not
loiiiiil to do so, for their dis.agreement was fully
nd filially understood when they separated, and
lie letter disclosed no new facts or evidence,
he .ward was therefore set aside on this ground,
Irape
I., diss. In ri' Tin' <'V (}. B. CUU.
I'\nce vienei.; .iwardi d that difeiulaiil lIiouI.!
open a ditch finm the Uiu' fehie lA-tweei) himself
:iiiil ilefeiidaut, thiuUfdi the i.laiiitiff's farm, of
sullieient depth to cairy off the water then in
the diteh opened by defendant, about twenty
■ ;■■ y
1^:
!•;[:
143
ARBITRATION AND AWARD.
)li
■■!
Il 'I
'iil
i'
rods in leiigtii, nnd that tlu; plaintiff jhonldiiKike |
iind kt'ej) ojifu tiii» Hiune portion of ditcli, com- ;
niuncing at the line funce, Ac. ; Hiiid dituli to he
made before tiic Ist Oetolter, ISti'i : Seinhle, tliut
tlie award was not had, as decided in Murray v. j
Dawson, 17 <'• I', MH, for oniittinj,' to specify i
tiiu tiiuf within which eacii party was to perform i
liis share of the work, for tliat the time men- :
ioiied apphc
g. 15. 4(i4.
Sec VI. ;», p. i; if. M. 22li.
In an action a^'ainst the makers of a joint ivy,
several note payalde to I', or bearer, one Avkn |
dant sutVered juilgmcnt l(y default, and thcotii,,
pleaileil, that after the note fell (lue, and uhil,!
it was in K.'s liamis, disputes arose betwcin |; F
and this defcud.aut res[iectiiig it, among iitlnr
nuitters, which weie referred : that the arl-.
trators awarded that ilefendant should iia,]
It. a sum named, and that he and H. nIhh
execute mutual ixdeases ; and that the pliiiiitijl
toidt the note after it fell due, with unijcu.
the facts. .\t tlie trial the submission and awat I
were proved, and that the plaintiff' was presti,;
at the arbitration : that the note was disallnwnl
to K. , because this defendant, being a HtirnJ
only for the other nuiker, had been diseliurkvl
liy giviTig time ; and that the plaintiff thtJ
stated that he had no claim upon the n(jte:-I
Held, that the note Ijcing several, the plc.i Mil
good, though the action was against twe, aii.f
the award related to one only : that it uj,|
unnecessary to aver performance of the awani
and that defendant was entitled to a vertli,'.|
Fuliri'll v. Iljidi' iiiul Coxlur, 20 Q. B. 505.
The linding of an arbitrator, when iiiuiil
peached, is treated as res judicata between
parties to the submission. //(// v. .l/i7A/,
Chy. ;JS5.
An administratrix was sued by her l)iutlii!|
for a debt alleged to have been due by tJ
husbanil, the intestate, and judgment was ril
covered ; subseiiuently a reference was made:!
respect of other moneys come to her haiulji.T
the benelit of her children, and by her deposiirJ
with her brothei', and this judgment and tsf
amount due thereon were, at the arbitratiiil
mixed up w ith ({Uestions as to thcbe trust mouenl
and the award was in respect of all. TlieiM,!
ties all acted as if these trust moneys, and !
debts of the estate, were to be considereil
dealt with together, but the infants were i J
representeil hefore tlio arbitrators: — Held, lu
the infants were not bound by the vnmt
Sioml V. Vo-itillo, 17 t'hy. 32S.
>ie*iO'Dou(ihcrtii \. Fidwdl, II y. li. fell
130; Canijjlj'i'lly.'/Jowtainl, I'J Q. B. \-J,[i\i\
Siillirciit V. Kiim, 24 I.,!. B. Mil, p. IBO.
7. Co'taiiiti/ uiul Finalitij.
(a) Oiiiittiiuj to find on the Instien.
Assumpsit. Pleas, general issue, aiiil xU
A verdict was taken for the plaintiff, suM
to a reference ; ami the arbitrators ana
' ' that at the time of the commencement oi i
action, or at any time afterwards, the pte
had not any c.iuse of action whatever against li
defendant," and directed a verdict for deia|
dant for £20 lOs. Id. :— Held, that both I
issues were sufficiently disposed of. Toirim
V. Morton, 2 Q. B. 100. -P. C— Jones.
14J
ARBITRATION AND AWARD.
UC
Where 11 cause, with Koveral issues joined, is
rcffrn''!. with costs to a))iile tiie event, and the
jrliitnitiirs award a certain sum to the ]daintit)',
mitliiiut saying anything aliout the issues, w)i.ieh
[•re licit iiccessiarily from tlieir nature detern. .ned
tlie award in favour of the phiintiiF, the
ovarii is l>;id. Ili-riiiinlv. Striirliitii,'2(i. B. 123.
Wlioro ill tresp.ass to personal jirojierty, and
Viral plwis pleaded, a verdict was taken, sub-
Jct to a reference, and the award determined
e cause in favour of the plaintitf, and reduced
fViTilict to i"7 lOs., tile court refused to set
Jide the juilyiuciit oil the award, on the ground
ihat the award was void for not disposing of the
lies. Wuud v. Muuilir, 3 Q. B. 71).
Where a cause was referred at nisi prius, under
rule (if reference providing, "that the costs
the said cause shall be disposed of as follows :
.e costs on demurrer to be subject to the judg-
icnt of tiie court on the issues in law, upon
hiih tl'c ailiitrators ai'e to as8ea.s the damages
istuiiiL'tl liy the plaintilf, and the costs on the
Ms ill fartaiid the costs on the said reference
all he ill the discretion of the said arbitrators,"
ami the award said notliing respecting the
(iiis ill law, and no damages were assessed
hcrtiiiwii : - Held, good. Masenir v. Vhamhers,
IQ. B. 18U. — 1'. C— McLean.
I Dalar.ition on the common counts. Pleas,
Oiiassuinpsit, payment, and set-ofl'. A verdict
taken for plaintitl', subject to tlie award
W. 11. "upon all matters in difference be-
irci'n thi'iii, as well in this suit as all other
litters up to the eonimencement of this suit :"
•tj to al)ide the event. The arbitrator awarded
«t the plaiiititl had good cause of action
^iiist the defendant in tlie said cause, and on
lie iiiattei's so Hubniitted, and w.is entitled to a
rtlict tlaTiin ; and assessed the damages to be
lid liy (letViidaiit to the plaintiff in said cause
i ii!4;t 8s. : Held, that the award w.is good ;
lit it ilisjKised by necessary inference of all the
ncs in the cause, and wa.s not uncertain.
IHm/.iv. i\t,ruU, 11 y. R 357.
ITlie iluolaration and pleas lii'ing the same as
Ithe la.st ease, all differences in the suit were
ieircil; ousts of the suit, reference and award,
Ithiile the evoiit of the awan'. The arbitrators,
ptinf,'in their award that they bad heard the
Kits ri.Kii /•)'/»;/ '/" /)itiiil>iiM, awarded linn-
■iiiio nihiij iIk siiiiif, that all proceedings
I till' lausi- slioulil cease, and that defendant
will |>aytn the plaintiff L'.'U I'Js. Id., in full
|all iloinaiiils in the cause : Meld, that there
a sullit'ii'iit di'tcrniination of the cause, and
inHiiiahlo nilVrinci' of a linding on each insue.
y/uM, .l/i.,/;», I I'. |{. I'll. I'. C. Draper.
siiluiiisKiiin direeteil a specilio tinding on
•rtuuhir issue, and the arbitrator gave only
ieinial awaiil lor defendants. A summons to
iisiiU' llio award on this ground Was dis-
iTgiil, mi ciiiidition that defendants should
I the I cists of this issue to be taxed to the
Will. ' V, ;,,/,/„» V. /)',„»•», I i>. I!. ;i;ji. c. i,.
nil. Uii'li.'ti'ds.
Vliiiv the ict'ertiiee was of all matters ill dif-
uiul aciiiius l>etweeii the parties, costs of
-ntciciicv and award and of said actions
, in thv; iliseretion of the arbitratoi-s, ;uid
Jtr was (.(ivoii to the arbitrators to order anil
'tiuiiie what they shunld think fit to bo done
lU
by cither of the parties respecting the matters
referred ; and the referees ordereii, among other
I things, tliat a certain sum should be paid and
accepted "in full satisfaction and discharge of
all the said actions and matters in difference;"
also directing that no further proceedings should
betaken in the suits :- Held, good, for it put
an end to the actions, so that it was unnecessary
to award upon the several issues, or lind siiecili-
cally upon the subject of costs, //i n linnvn
iiml Oi'crhi.ll, 2 1'. K. 0.
•See IV. (g) p. 127.
(b) OmittiiKj to dU/toHP of Suit.
Whore certain matters between A. and IJ.
were referred, and also all costs of suits by
either party, civil or criminal, and the award
wan that B. should pay a large sum to A,, and
also all costs of suits : —Held, sulliciently liiial,
without stating that the suits should cease ; ami
the award was upheld, though the court were
strongly impressed against the justice of it.
Ducat v. (Iri-eii, 4 O. S. 1 10.
Where a verdict was taken for Is. damages,
subject to an award, and the award did not in
any manner dispose of the verdict or cause : —
Held, not fwial, and bad. linutlij v. Mc/ntunh,
4g. B. 259.— r. C— Jones.
Award held bad for failing to give any direc-
tions about the action, or the costs of it. IMdij
V. Li'Htn; 14 (l B. 259.
Under the sjiecial circumstances of this case :
j Held, that the award was bad: I. For want
of a linality xs to Chancery suit referred ; for
by dismissing the bill .as to \V. only, the suit
was left still undisposed of as to costs and other-
wise as between the plaintiffs and the other
defendants. 2. Because, as the sureties were
directed to pay a large proportion of a grilss
sum, including accounts not arising under the
lease, it was not clear that they were not de-
clared liable for claims for which they could not
Iwj held responsiide. In rr Wlmli r v. Miirjiliij,
2 v. K. 32. I'. ('. McLean.
('. had sued B. on a contract, by which he
agreed to build for B. a dam B. to lind certain
materials, &c. .Afterwards they entered into an
agreement, reciting that dilVi'i-eiices had arisen
between them in reference to this contract, and
referring the same : Held, that the siibniission
authorized the arbitrators to consider claims by
B. against V. arising out of the agreement; that
the omission to dispose of the suit by the award
was no objection, as it was not mentioned in the
reference nor shewn to have boi^n brought before
the arbitrators ; and that the award was good,
except as to a iliret'tion to pay money to Iv, a
stranger to the reference. In n CiiiiijiIhII v.
nroini, 2 l*. K. 2!tl. l',C'.~ Kicliai.U.
Held, upon the .award set out in this case, that
the replevin suit was clearly and linally disposeil
of. Stiii.idii V. Mditiii, 22 (^t. B. I.Vt. "
riaintirt" declared li'iiil''il, I. .N< st fai'tuiii ; '_'. 'I'lmt
tliu iiriiiti'iitiii's iliil not nnki- any huiIi uu'iinl.
Tliu award im'iiticpiii'(l no suit, Imt awardeil tlio
costs of icfcivnic, " and al!4o all corttH tlint may
have been imiified liy any legal proccMM through
wliich the m.'ttter relatiu;^' to tluH arliitration
may have (Kissed i>fevions to this award." The
Ijlaintill's attorn' y in the suit in < '. I', pro-
duced the liill of costs in that suit : Held,
that the auanl was sutliiiently certain anil final,
if the existenci^ anil sulistance of the suit and
its connection with the niitters referred had
heen uroiierly set out in the declaration and
proved ; i)Ut (hat, on these pleadings, the suit
and the fact of its reference might he taken to
he admitted ; and a verdict for the plaintill' was
therefore upheld. Ilihln rt v. S.u/t, -.M <.>. H. .'81.
See /'inill:,,, r v. S,iiilf, ,; I \\ I!. -IS.
.•«;ee IV. (g) 1.. I-J7.
(c) M,lll,,\ rJiifiiiiJ lu l.nii.l.
Where the arhitr.itors had powi'r to award
upon convi'yanccH to he made hetween the
partie.s, the amount of rent to he paid, and the
security to he taken tlKHlor : lleld, that un
award directing "all nccessaiy deeds for grant-
ing," &c., ".ind for .-ifcuring payment of the rent
to he executed,' withoul s.iyingwhat kind of
conveyances, was li.id. Ilinlhi v. .Ur/ntni/i, 4
y. B. '2yj. v. «'. .lone.s.
|)e1)t on hond. Defendant set out the •.ondi-
tiou on oyer, which w;uh for the iicrfornianee of
the aw.irdof arhitr.itors, to whom it was referred
by the plaintill' and defendant to arbitrate,
&c., "uiion and concerning the possession" of a
certain lot of land, ajid also of and coueerning
all, &c. , and all manner of actions, eonti'oversies,
and demands wiiatsoevcr, between tlie saitl
partieti, from tiie begiiming of the world to
the date of the sail bond, and ]deaded "no
uwartl maile. " The [tlainlill 'nidied, siiewingan
award made by the arbitrators at the proper
time, and with tiie jiroper formalities, "that the
plaintitl's should p.iy to the representatives of
one .'^., deceased, within one month, the amount
line on certain notes of hand given by pluintit}'
to said S. in paynicnt of the land, and that the
defendant biiouhl gi\e to the plaintit)' on such
payment a sullicieiit deid in fee .simple for said
land, and tiiit defendant should not transfer
the said notc:i within tlic- ;;:iid month ; and that
the bond for a deid given I'V the saiil .S. to the
plaintitt' should be delivered by defendant to
plaiutitl'. The plaintill then averred notice to
defendant of (lie award, and assigned two
breaches, I. That the plaintitl' tendered to
tlefendant, the holilcr of tiie .iiid notes, and to
the deforidant's wife, the e\ei.iilrix of S., the
full amount of the notes, and i.lemandeil a deed,
but that they refinetl to ai i.'ept the money, and
defendant refused to give the deed, although a
reasonable time had elapsed ; '_'. That after the
tender and refus.d in tlie lirit breach mentioned,
and before suit, to wit, &..•., the plaintill' rei|Uested
dtfeiulant to deliver to plaintill' the bond for
a deed ; and although a reasonable time h.ld
elapsed, defendant would not deliver the said
bond. The defendant rejoined, yetting out the
award verbatim, and then demurred He|)ar,itt;
to each breach: Held, (McLean, J., duhit.u'4
on the tlrst point), I. That under the geiiir,!
Words of the HubmisHion authority wan gjv..,
to arbitrate as to the fee simple of the Lm,'
if it were a nuitter in iliH'eroncu between tvl
parties, which must be ]>resumed ; '_'. n^I
the award was void for not deciding upmi t:,l
matter expressly submitted to the arbitr;it,J
respecting the iiossession : Hehl, also, that t'J
defendant could not, by thus setting nut li.f
award in his rejoinder by suggestion, maki' ,:
part of the plaintiff's replication, as in iln,,.
of a deed [ileaded with profert ; and that ;,
defendant's demurrer should have lieeii tu :
replication, and not to the several breadii'. .,
signed in the replication. Itut upon the uli
record, judgment was given the defendant
the demurrer, because the award as set mit
the plaintitl' himself in his re])lication w.is \m
HniiiUrl V. /'arti, I C. 1'. :<70.
An award after directing a certain suiii t..
paid to defendant for his interest in land, ail>k|
" Wo have taken it for granted in making ti/
award, and the saidC. H. shall have the ri~|
to cross the railway track from one part
jiroperty to another:" Held, not sulliii.iit.|
delinite or certain. T/ir (!riit;,.
out thi^ land to be conveyed by niettn ;
bounds: Seiidile, that a conveyance is imt !;.■
sary. Ilnul )ViMlirii I!. If. I'n. v. A'r,/,,;
I*. '\{. r.O. I'. ('. Ihirns.
.\rbitrat(Us aiipointed to determine tlnitJ
of land rei|uireil for the railway, and tlieiiJ
ages the owner might sustain thereby, avLihiJ
that the cciinpany should jKiy .t'.'>() per :i.rt:|
the land, CI I .'is. for damages to the sai.l
and fl.'l l.'is. foi- other d:iniages. It wa-'a^icl
ted that damages to other land were cl;iiii,c,
the arbitration : Held, that the ;iward \v,,;it
not being linil on the matters submittei
(linil \\,{e-
nt of curtain i>ropcrty in Herlin, in which «!.
Itlio )ilaintiir were jointly interested found
»t oil the 1st of September, IHtiO, defeiiilant
inulebtedto the plailitilV in t.T-M!) 17s. 8d.,
they ordered him to pay ai:cordingly,
|tb interest half-yearly until paid. 2. As to
iiliu proiterty, that ;is reganled the rights
^d liiiliilities of th(^ plaintitl and defenilant
en to, they did not lind that any ditl'ereiico
lari.Htn calling for their arbitrament, (further
Ui iii< niigiit regard the said amount claimed for
nii;,'ciiieiit.) and they therefore made no adjn-
alioiioii such rights or liabilities. .'{. .As to
tiiiii 1 lopcity in (iuelph, lomprised in a deed
ule by ilefeiidant to plaintitl', they adjudged
; tlie plaintitl' sholihl hold the same in fee by
iuc of Mtieh deetl, but that if he, or his heirs
I »ssi>;iiH, shmild sell the same, or any part
reol', iiml should reali/e from such sale a larger
tliiiii L'lKI"), he or they should aeeonnt for
-urphis to the defendant, his executors, &e.
an aetioii on this award, defendant, after
liiiL'itout at length, pleaded; 1. That the
itnibirs awarded ni>on matters not submitted,
Iwliieli accrued after the submission, and upon
iDunts lietwecn the parties to a ])criod long
■l-tliesnbmission. '2. That the award was not
, in this, that the said matters relating to tlio
Berlin proprrty were matters in ditFcrrnee, And
were subniiltril to the arbitrators, but that thfly
did not award thereon; auil in this, that they
ilid not rl|Hpo.sc of the ditVerenee rc'pcetmg the
value of the tiinlph property, but left the same
unsettled and dcpt inbiit upon the sale thereof by
the plaintitl', when only till' amount to be ae-
counted for to defenilant cniild be detei mined :--- •
Held, on deniMirer, both [(leas good ; and as to
the Hecoiid plea, that the avi-rment as to thn
licrlin pro|K.rty was a siitlieient defence, and
the idea theriforc sullii ient, although the award
as to the (iiulpli land was not wanting in final-
ity : -Held, al^-o, that iipniitUe evidence, set nut
in the ca.se, the lii.^t plia was not proved ;
Qil.ire, iis to the iiiteiiuon and elbi't of the direc-
tion in the awaul to p.iy the LTI.'.MO, and interc.it
iialf-vearly until p.ivniiiit. si^ ii;i,-l v. WiU to the draiiiaj;e of
surface water, referred tiie i|iiesliiin to fence
viewers, who awanbil th.il drl'einlaiit .ilioiild
open a ditrli from tin Ijni fern i bet ween himself
.iiid defeiiil.int, lliroiiu'h the plaintiU's farm, of
sullieient lb ptli to e.irry oil' the water then in
the iliteb opeiieil by di I'liiilant, about twenty
rods in b n;:j:tli, and that the plaintitl' slioiild
iii.ike and kei p oikh tin:, siine portion of dit<'h,
eoiiiiiien'iin,' at the liic fence, and of sullieient
leii;,'lh, width and fall, to carry oil' the water;
to lie t«'i "lid ah ilf lc( t deep at the line fenee ;
said dilcb to be m.ade before the l.st October,
I.S(!."> : Held, IuIIiiwIhl; Murray c. |)awHon, 17
( '. I'. "iSS, lliat till' aw.inl was liad, fur not snUi-
cieiitly lb linin;; tin- pnint of ivimuienci'inent and
course .and poMtimi of the diteli. /}iiir.i(iii. v.
yfiirnii/, 'jii i.t. r.. itn.
.\ dis|iute aio.ie bctWien tile Noltlleril Kail-
wayt'o., and the < 'orpor.itioii of harrie, aa to
the constnii tion of a br.ineh Imc into the town,
;iiii| it WM.S iioiccd by both p.iilics tli.it a bill re-
, l.itin.L; tliereto, wliicb was before the lioii.se of
p.irli.inieiit then in .sis^ioii, : lionbl be w ilbdrawn,
i and .all dillerelices <'oll1li etcd with the claimof
the town aj;.iiiist liie cuiiip.uiy be n I' rred to one
; H. The .irbit r.itni- .iwanbd that there was in
I |.S.">,'!, a valid a;^ici iiuiit by the .oiiipany with
the town to cMii-,tiiii t tliis liiir, |uo\iileil that
' suitable land .'lioiild be procured by ti.e town ;
' that such land was mi prociind, init that the lino
I h.id not Ik'cii eonstnicted ; that tin- claim of thn
I town to have such a;;re< iiiciit perfoiined still
subsisted, "and if not perbirnicd tiieir ri^^ht to
eoinpens atii'ii in li' u tie rcof oii^nt to be awar-
ded. " lie tile II .iw. allied as eoiiipeiis;ition for the
: non-pcrfoiiaaiice, and in full satisfaction of
! said claim, that the eoni|iaiiy should piy to the
; corporation at a day and place nanieil C'ljOOi),
; and should, w In n iti|nestcil by tint town, con-
vey to tlicin in fee ,ill the lands iiicntioiied in a
ceitain iiideiitiiic iiiade by mie II. to the com-
pany ; and should iiiither, when so rci|iiested,
release .ill claims in rcspeet of the land and right
of w.iy conveyid to ibcin by the several parties
over wlio.se lands the s.iid branch line was to
pass. On motiiiii to set .aside tbisawanl for de-
fects apparent on the I'aceof it : Held, that it waft
not uncertain as to wlicther the agreement had
been carried out, and whether the comjmny had
an option to pay the l'j,(HH) or lonstruet the
branch line, but sullieicntly shewed that it had
not been performed, and tli.it no such opticni was
P I
'U'i.4
,.- *^%
V"^o .^-bi.
0.'..\*^>
.r
in respect of the estate of the late T. 1'. (except
as to a specific devise), and all accounts, claims,
and demands whatsoever then existing between
the plaintiff, and defendant as executor of T. V. ,
or otherwise howsoever. The arbitrator awarded
that .?4,485 was due from defendant as executor
(if T. P. and otherwise, to the plaintiff in respect
lit the matters referred, which sum he directed
to he paid, and that when paid it shotdd be in
full satisfaction of all demands by plaintiff
against defendant as such executor, and other-
wise in respect to all the matters referred : —
Held, no objection to the award, that it did not
foil separately tlie amount awarded against
defendant as executor, and in his own right.
rmin V. Pd-rln, 32 Q. B. (iOO.
Two partners (plaintiff and defendant) having
dissolved, referred .all 0\.
0. I'rfi'iriifc lull l.
The arbitrators met and two agreed upon an
amount, and told the third (who dissented) that
they intended to award this amount, and after-
wards, in the ab.scnco of the third, and without
notice to him, they increased tlie .award ; the
objection being that the same two arbitrators
took evidence secretly and without notice to the
third, by going to see a mill at the urgent request
of defendant, but during hi:i abrjancc : — Held,
suflioient ground to refer the ease back, Imt
defendant not wishing that :— Held, not aufii.
cient to set aside the award. Hall v. Wilson, 7
C. P. 272.
Under a submission giving power to the court
to refer back upon any application to set aside
the award : — Held, that the power might he
exercised repeatedly. The arbitrators, on a
reference back, having taken the evidence ni
professional witnesses without notice to the dc
fendants : — Held, that such notice was ind
pensable ; but as the arbitrators seemed tn
have acted under mistake, and not from a settleil
intention to do injustice, the matter should lio
referred back a second time. In re Mankij v.
Anderson, 2 P. R. 35k — P. C. — Richards.
Agreement by the parties to withdraw i.;i
but one matter from consideration, and try to
settle tlio other matters themselves and if thry
could not do so then to refer them back to the
arbitrators. Reference bade accordingly. V,i|.
idity of second award. Bahij v. Davrpnurl ■"•
Q. B. Go.
Where an award is good on its face, the cumt
will not refer the matters bick that the arhi-
ti-ators may state the grounds of their decision,
.and thus cn,al)le a motion to be made against it
if illegal. IIV.Vs' v. (.'T.oir.ski, IB Q. B. 42.
Where a reference contains a power to the
court to refer back, it will be exercised only
wiicn it a[)pe,irs that the award is egregionslv
wrong, or not sanctioned by the evidence ; and,
Held, that no sullicicnt ground appeared in thi»
case. //(, (v liruini and Ovcrholt, 2 P. R. t) -
P. ('.- .McLean.
Objections not appearing on the face of the j
award (Munot be raised against an application
for attachment. But where, on such application,
it ajipeared that defendant had not attended the i
jirbitnation through some misapprehension, the
matters were referred back Blwrkcrv. f.nuiill
2 1'. B. 14. -P. C.-Burns.
Where cro.ss rules had been obtained, fur, i
atlaclunent for non-performance of an aw.url, |
and to set tlie award aside, and the affidavits
were conllicting as to whether a particular (iiiev j
tion had been decided by the arbitrator.^, and as)
to alleged mistake in calculation, the court, |
under sec. SSof the<'. li. P. Act, 1 85G, referred |
b.ack the m.atter.s in dispute, discharging the nilf;
for attachment without costs. In ri- .S>i'//v.|
h'annr;/, 2 P. R. 82. P. C. -."SIcLcan.
Matters will not be referred back upnnty
same grounds, as to the special directions as
p"%5P. R. 108. -P. c.
JVhere a rule is asked for
C '^,ff«!«lant deducting
H«ly intending that el
f»own costs, the rule wij.
Hout costs, the costs 01
ti '^/''^ arbitrator
^<:m Jordan y. And,!.
•••—(-•alt.
[An award, bv mistake, ^
rl''^P^'"ntifi- should pay
Want s costs of the referenc
J/eeudant should pay
C the plaintiff was di,..
CLT'^^^^^^'^thMa;
K I /T"»*«' for.
F-^to defendant obtai„;c
157
ARBITRATION AND AWARD.
158
■ed
award with a tlirection that the contract tlid 1
not bnul, or to refer back the certificate for i
aniemlment, by stating the facts : but — Hehl,
that as the arbitrators liad not chosen tf) submit
•my point for decision, and were not bound to
do so, the court could not interfere. Ih.
The cfiectof the C L. P. Act, s. I(i4, enabling
the court to refer back, is not in any way to
alter the arbitrator's power or authority ; and the
court therefore refused to refer ))ack upon an
(ibiecti'in, not apparent on the face of the award,
that in considering the nature of the work
I'laimed for the arbitrator had not confonneil to
tlie engineer's certificate, which it was contended
iKiund the plaintill'. Itxul v. ]V,h; "20 Q. H.
:d4.
All award will oidy be referred back on the
same grounds that wouM formerly have justified
its being set aside. The court refused to refer
hack on the ground of the discovery of new
iviilencc. Lalta v. Walllti-iihii', ~ f,. .). "JOT.
R C.— Kichards.
After the entry of judgment by plaintifl", it is
till) late to ask to be allowed to set aside the
iiulginent and have the cause rcfen'ed back to
the arbitrators to enable them to certify for full
ousts in proper form, assuming tliat the omission
to so certify is a ground, but as to which, (juaire.
A>;) V. llohiwo'tKl, it L. J. 157. "C. L. Ciiand).
-Draper.
,\u application to refer back on ac(!ount of a
mistake in charging the plaintiff with the same
iimi twice was refused, the mistake being denied
oil affidavit, though the arbitratoi" certified that
in his opinion the case shouhl be reopened, as lie
was not sure this was not the case. Latin v.
WMhi-Uliie, 3 P. H. loT. -P. 0.--Hicliards.
Held, that under the circumstances appearing
iu this cause it could not be .said that the arbi-
Itrator had fully considered or really pronf)iiiKed
I judgment on the questions jubmitted, and tlie
jmattera were referred back, hi re Ingrtvull anil
\Ehml, 3 P. R. 162.— P. C. -Richards.
ki\ arbitrator, as appeared from his minutes
Itaiien on the arbitration and other evidence,
Ikriug misconceived certain facts and misun-
Ideratood some alleged admissions by counsel,
pe award was referred back for reconsideration
I to the particular item afl'ect^l by this mistake,
rith special directions as to costs. C'lanci/ v.
Imy, 5 P. R. 108.— P. C— Gwynne.
Where a rule is asked for to refer a case back
laii arbitrator to allow him to certify to pro-
bnt defendant deducting costs, the arbitrator
idently intending that each party should pay
lovm costs, the rule will be made absolute
rithout costs, the costs of taking the award
lia before the arbitrator to be borne by the
plicant. Jortlai' v. A iiihhr, 8 Tj. J. N. S. 67.
C.-Galt.
I All award, by mistake, instead of directing
lit the plaintiff should pay his own anil the de-
Hdaiit's costs of the reference, except $12 which
'(defendant should pay, directed th.at the de-
nt should pay such costs e.xcept the %\'2,
kich the plaintiff was directed to pay. The
towas made on 17th May, 1873, the Saturday
pote Easter Term, but nothing was done, which
l»y was not accounted for, until 2nd Septem-
', when defendant obtained a certificate from
the arbitrator as to the mistake made, and on
the 1 1th September obtained a summons in
chaniV)ers to enlarge the time for making the
award till the 1st October, and to remit the
award back to the arbitrator for reconsideration.
The summons Ir ving been enlarged till Michael-
mas Term, and heard before the full court : —
Held, that the application was not too late, and
tlie rule was made tdjsolute. ('niiiiorr. Mr-
Coniiar/:, 23('. P. 271.
Sec /{of-i V. ('iir/i(irii/i(i}i u/' liriifc, 21 ('. P.
.■)48, p. lOl.
\'II. SiviriNi; A.-iiii: AND Stavini; PnocKr.inxaH
ON Award.
1. Fdv Mlciiiuhirt nf Arliiiratarx or Parties.
(a) III takiiifj or rcjertiiiij Eriiknci'.
Where tlie plaintiff '.s attorney had attended a
meeting of arbitrators, the court refused to set
aside the award, Ijccauso the plaintiff' hail not
attended to give his evidence according to the
provision in the rule of reference, from the mis-
carriage of a notice sent to him by his attorney,
and although the a«ard iirocceded principally
upon the evidence of (K-findant. MrDowjuU v.
('(iiii/i, Tay. 87.
An award set ,a.-iidc for unfair conduct of the
arbitrators in the manner of hearing the evi-
I deuce, //niiiillnii v. I\"il.-:tiii, 4 (>. S. l(j.
I .\n aw.ird .set Uhidc for irregularity of the ar-
bitrators, sucli a.s tlie examination of witnesses
in tlie absence of the parties, will be set aside
without co.sts. Caiii/ihi l/v. lioiil/oii, 1 Q. B. 407.
— P. C, — Jones.
Where after the arbitrators had commenced
their investigation, both plaintifi' and his attor-
ney re(piested delay, and iinderstooil that it had
been granted, but the arbitrators awarded in
favour of defendant without giving further time,
and without hearing all the tesi imoiiy that the
plaintiff might have offered — the a« ard was set
aside without costs. Gri^dalf v. Boulton, I
Q. B. 407.— P. f. -Jonej.
Where the arbitrators refused to examine wit-
nesses, the aivard was set aside, although before
the submission \vas signed the arbitrators in-
formed the parties that tliey would not allow
either of them, or their attorneys or agents, to be
present at their investigatiou.s. /?; ?-e McMiiUen
and Taijlaj, 'HI P.. 173. -P. L'.— Jones.
When arbitrator.! without consent e.xamined
an interested witness), and afterwards awarded
in favour of the party calling him, the award
was set a:iidi.'. Durii'x. BinUill, 2 Q. B. 19'J.
Arbitrator:j rcfuiing to give time to produce
testimony cannot hiupport their a\\ ard by shew-
ing that such tostiniony could have been of no
service. Jn ,:■ Itidt v. t'.ulL (J (,». 15. 3c'7. — P. C.
- McLean.
Held, no objection to an award by three arbi-
tratois, but which niigiit hivi' been made by any
two, that one arliitr.itor aluiie examined a wit-
ness without iiulice to the opposite party, it
being sworn tli.it tlie other two arbitr.iturs were
totally ignorant of such evidence when they
made the awai'd. lioykx. Jfiiniphni/, 1 P. R. 137.
P. C— McLean.
159
ARBITRATION AND AWARD.
ICO
Wliere counsel hotl agreed to submit their
views on a le^al point in the case to the arbi-
trators in writing, and the arbitrators decided
without waiting to hear from them, the award
was set aside. Pe.rletx. PerkI, 15 Q. H. lOo.
Where, after an arbitration was closed, the
agent of one party sent letters to two of the
arbitrators, containing statements and arguments
in favour of his principal, which the other party
did not see, the award was set aside. Williams
V. Roblin, 2 P. R. 234.— P. C— Richards.
Where a witness was examined in the absence
of defendant the award was set aside. McXulti/
V. Jobson, Johson v. MrNiilty, 2 P. R. 119.—
P. C— Burns.
Though the arbitrator stated that the evidence
thus given had in no way influenced Jiis decision.
WcUersv. Daly, 2 P. R. 202.— P. C. —Burns.
Where the umpire chosen upon a reference to
arbitration had allowed an affidavit to be used
in evidence ; but remarked, when it was read,
that he would not attach any weight to it, and
swore that in adjudicating upon the matters in
diflFerence he did not take such affidavit as evi-
dence, or attach any weight whatever thereto,
the award, notwithstanding, was set aside, but,
under the circumstances, without costs. Mr-
Edward v. Gordon, 12 Chy. 333.
Where an order of reference by consent pro-
vided that the arbitrator ' ' shall have power to
examine the parties and their witnesses iv m
oath or affirmation " it was held that he had no
discretion to reject the evidence of one of the
parties on his own behalf. Littler v. Ham, 1
L. J. N. S. 298.— P. C— A. Wilson.
The decision of an arbitrator being binding on
the parties in matters of law as well as in fact,
an awiird will not be set aside because letters
ore put in as evidence by one of the parties
which are not legal evidence, if the circum-
stances and the conduct of the arbitrators are
consistent with the supposition that they only
read the letters for the purpose of judging of
their admissibility aa evidence, and it does not
appear that they actually received them as evi-
dence. HotchkisH v. Hall, 5 P. R. 423. -P. C.
— Gwynne.
Where a witness for one party is examined
in the absence of and without notice to the
other party, the award will be set aside. Hirk-
■maii V. Lawson, 8 Chy. 38C.
Where two arbitrators took the evidence of
B. in the absence of the plaintiff and of the
other arbitrator, by which evidence it appeared
the two were influenced in their award : — Held,
that the award was invalid. Jh.
Wiere at the commencement of a reference,
k. , the arbitrator for one side conferred privately
with the parties who nominated him on the mat-
ters in question, and on the evidence to be offer-
ed, and continued this course to the end : —
Held, that the impropriety was not cured
by shewing that after the reference had made
•ome progress, the other arbitrator acted with
similar irregubrity on the other side. The
reference was to two, with power to thorn to
appoint an umpire, who was to award if they
disagreed. An umpire was appointed, and made
an award :— Held, that the irregularity of L's
course in holding private conferences with one
of the parties was suflicient to avoid the award
of the umpire. After the two arbitrators had
Hnally differed, the umpire had a private conver-
sation on the subject of the reference witli tin
arbitrator L. , in the absence of the other arbitra-
tor and of the parties : — Held, that as L. had
acted as the agent for one side, private conversii-
tion with him was as injurious and objectionable
as private conversation with the principals
would have been. lie Lawion and IIufchiiiHon
19 Chy. 84.
The court allowed the party prejudiced, to
serve a suplemeutary notice embodying the ob-
jections as to the course of the umpire and arbi-
trator L. , the same having come to light on cross-
examination, and tliere being strong reason for
apprehending that the award was not a fair
award. Ih.
HeeStockimj v. Crooks, Tay. 492, p. 125 ; ,S7(i((-
v. McEathrun, 3 Q. B. 184, p. 125 ; Hall v
WiUon, 7 C. P. 272, p. 150 ; L Manlf,/ ,,«,;
Anderson, 2 P. U. 354, p. 15C.
(b) Other Irreyularities.
Where, on a reference by A. and B., A.'
agent attended, and after B. had given evidence I
to the amount of £200, retired, understanding
from the arbitrators that the case was closed ;
and B. , in his absence, induced two of the |
arbitrators to award him £1000, the third refus-
ing to consent — the award was set aside on pay-
ment of costs. VanEqmond v. Jones, 4 0. S.
119.
Action on an award of compensation to plain \
tiff under the Railway Act, for injuriousl)
affecting his land. Plea, that the award ivas
procured by fraud and misrepresentation.. Tliel
land in question was situate upon a naviga-
ble river, running down to high water mark,!
and defendants' railway was built upon cribs in
the river, cutting him off from access to tlie|
water, which was tiie injury complained of.j
The jury were directed, that ii the plaintiff con-,
tended before the arbitrators that by law anill
under his deed he had such an exclusive righlj
to the water in front of his land as would entitlel
him to damages, when he had not, this wA
evidence of fraud under the plea : — Held, il
misdirection, for no argument used by the plain-j
tiff to enhance his claim or place his case in th«
best light, could \>q a fraud. Widder v. m
Buffalo and Huron ]i. W. Co., 24 Q. B, 520i
in appeal, 27 Q. B. 425.
On applications to set aside awards for ni'sl
conduct of an arbitrator, the facts relied upo^
to establish charges of partiality and unfai ^
ness on his part must be clearly averred. Qua;r«
as to t.
ray. 451. '^"
,«;here a plaintiff, having
ne;n a representative char;
tisown right, referred botJ
wre to award by a certaii
Jnpirem writing, and the;
le.to agree appointed, bu
Jipire, who made an awj
-stors adopted and publishe
rie tune limited for'^makS
Ksnd awarded thereby
l^e plaintiff m his repress
i^l''^ °» «ffiJavits of th
totiffin his own right, ref
■«on-paymentofthesuma
Jds on motion, set the awa
Jemistake, and because^
.ow own award. Dennk
r '^' ^ — -Hagerman.
BeW, that a mistake in the i
■"^r/^f the parties is ^
^rd for a certain sun,,,
W be entered for the sa
J'«um,isgoodforthesm^
f*„«,T. T. 3&4Vict-
P^«feall mattera in diffe,
"7 have been referred
;tef,eeofit.ltiu'
'""glitmayseem that the
IGI
ARBITRATION AND AWARD.
162
such points of law as should properly arise on
the pleadings and evidence, a question arose as
to the sufficiency to bind one of the parties of
certain evidence tendered respecting some extra
work done outside of the sealed contract entered
into between the parties, and the arbitrators,
instead of reserving tliis for the opinion of the
court, themselves decided that the evidence was
(luite'sufficient, merely reporting what the legal
objections were. The court, with very strong
observations on the flagrant disregard of their
ulain duty under the submission, refused to
refer the matter back to tlie arbitrators, but
simply set aside their award and the verdict
fuund by them in favour of the plaintiff. R088
V The Corporation of Bruce, 21 U. P. 548. .See
iluriihy v. Cotton, 14 Q. B. 42G.
Wliere the legal rights are rot hai'sli, but the
award disregards them entirely, it is void for
inequality and partiality. Jekyll v. Wade, 8
Chy. 363.
The reference was to two arbitrators with
power to them to appoint an umpire, who was to
make an award if the two disagreed ; an umpire
was accordingly appointed ; and the arbitrators
1 differing the umpire made an award : — Held,
that each party was entitled to the free judg-
ment of the two arbitrators on the matters in
difference as a condition precedent to the umpires
authority coming into force, as well as their free
judgment in the appointment of the umpire ;
and that one of the arbitrators holding private
I conferences with one of the parties was sufficient
Ito avoid the award of the umpire. In re Law-
\m\. Hutchinson, 19 Chy. 84.
2. For Mistake or Repugnancy.
k mistake in the calculation of interest was
leld no objection. Priestman v. McDougal.
Tay. 451.
Where a plaintiff, having two actions pending,
lone in a representative character and the other ni
sown right, referred both to arbitrators, who
jirete to award by a certain day, or appoint an
ipire in writing, and the arbitrators not being
kble to agree appointed, but not by writing, an
mpire, who made an award, which the arbi-
rttors adopted and published as their own before
Jhe time limited for making the award had ex-
tored, and awarded thereby a sum of money to
The plaintiff in his representative character —
pe court, on affidavits of the umpire and of the
ubitrators, that the money was intended for the
' stiff in his own right, refused an attachment
kmon-payment of the sum awarded ; and after-
B on m6tion, set the award aside on account
f the mistake, and because it was not the arbi-
ittow' own award. Dennison v. Sandford, 3
IS. 379 ; See /« re Caykyd: McMullen, 3 Q. B.
|2l-P. C— Hagerman.
, that a mistake in the initial letters of the
me of one of the parties is not fatal ; and that
> award for a certain sum, and that a verdict
Wd be entered for the said sum, naming a
peum, is good for the smaller one. Charles
khon, T. T. 3& 4 Vict. —P. C— Macaulay.
I Where all matters in difference in law and
»ity have been referred, and the award is
il on the face of it, it will not be set aside,
kugh it may seem that the arbitrators have
U
mistaken the law, and the amount awarded is
large. Hall v. Ferguson, 4 0. S. 392.
An award will not be set aside for a mistake
in law on the part of the arbitrators, not appar-
ent upon the face of the award. The Municioal
Corporation of Kingston v. Day, 1 P. 11. 142. —
P. C— Bums.
The rules aa to setting aside awards are the
same with respect to compulsoi-y references as to
others. The court, therefore, refused to interfere
on affidavits tending to shew th.-vt the arbitrator
was mis^'aken as to the law and fact. Sadler v.
Carruthfs, 20 Q. B. 560.
The alleged mistake in law and fact must
appear on tne face of the award, or be disclosed
by some contemporaneous writing. McDonald
v. McDonald, 7 L J. 297.— P. C— Hagarty.
In this respect there is no difference between
awards made on compulsory reference under the
C. L. P. Act and other awards. lb.
An award that defendant should pay the
plaintiff a certain sum, including the costs of the
reference, and afterwards directing that each
party should pay half the same costs, is bad for
repugnancy. Shaver v. Scott, 5 O. S. 575.
Where a verdict was taken for the plaintiff,
subject to a reference, and the arbitrator awarded
for defendant, but every\*'here styled the plain-
tiff "John," instead of "Patrick,"— the court
set the award aside and granted a new trial.
McManmon McEUerry, H. T. 6 Vict.
Declaration on a joint bond by defendants,
M. & 6.. to perform an award concerning all
differences between the plaintiff and defendants,
averring an award that M., one of the defen-
dants, was indebted to the plaintiff in a sum
named, and directing him to pay it by a certain
day. Plea, on equitable grounds, in substance,
that the only matter in dispute in the action,
besides the amount due by M. , was whether G.
was liable with him, and it was distinctly agreed
that in case the arbitrators should award for G.,
suca award should release him from all liability
on the bond : that instructions were given to
prepare an instrument to carry out said agree-
ment, but by mutual mistake it was not so
worded, and was executed without the error
being discovered ; and that upon the reference
the plaintiff abandoned all claim upon G., and
the arbitrators thereupon awarded as they did :
— Held, on demurrer, plea good. Oerrie v.
McDmell, 18 Q. B. 146.
The rules as to setting aside awards are un-
changed by the C. L. P. Act, and are the same
with respect to compulsory references as to others.
The court therefore refused to interfere on affida-
vits tending to shew that the arbitrator was mis-
taken as to the law and fact. Sautter v. Car-
ruthers, 20 Q. B. 560.
Held, that an award (in an action of replevin for
a promissory note) that declared the defendant
to have detained the note illegally, and at the
same time awarded that it should be delivered
up, upon payment of a certain sum, (which
amount was due thereon,) was not void for
inconsistency, as it effected substantial justice
between the parties. Lund v. Smith, 10 C. P.
443.
On a motion to set aside or refer back, it was
alleged that $122 had been twice charged against
;■, !. S"
: 1 ' ; I ■ • ii
103
ARBITRATION AND AWARD.
the plaiiitilV, being idontioal witli a juilgmoiit
also allow'od agaiimt him, and tlu- arbitrator
eertilioil that u< liiH opinion tliu nuittor shouhl bo
reopened, as he was not sure this was not the
case. It was objected also tliat the judgment
was improperly nllowed, having been recovered
against the plain "ifl" anil another, and therefore
not admissible as a set-off. In answer tliu mis-
take was denie(', and it was shewn that the iden-
tity of the two sums had been express^ •« dis-
pute before the arbitrator, and that the judgment
had been recovered on a note made by the plain-
tiff, and endorsed by another defendant in a suit
upon it for his accr)mmodation. It was sworn
also that the plaintitl' was insolvent. The appli-
cation was refused. Qua're, •whether under the
circumstances the judgment was not properly
allowed as a set-off. Liilla v. Wdlllirii/i/c, 3
r. 11. 157.— r. C'.~ Uichards.
An award, by mistake, instead of directing
that the plaintiff should pay his own and the
defendant's costs of the reference, except $12,
which the defendant should pay, directed that
the defendant should pay such costs, except the
S12, which the plaintiff was directed to pay.
The award was made on the 17th May, 1873,
the Saturday before Easter Term, but nothing
was done — which delay was not accounted for —
until 2nd September, when defendant obtained
a certificate from the arbitrator as to the mistake
made, and on tlie 1 1th September obtained a sum-
mons in Chambers to enlarge the time for mak-
ing the award till the 1st October, and to remit
the award back to the arbitrators for reconsider-
ation. The summons having been enlarged till
Michaelmas Term, and heard before the full
court : — Held, that the application was not too
late, and the rule was made absolute. Connor
V. McCornmck; 23 C. P. 271.
The court will relieve against an award made
between partners in ignorance, on the part of the
arbitrators, and of the remaining partners, that
important transactions had not been entered by
the other, the managing partner, in the books
of the lirm, in consequence of which omission
the award had been to a corresponding amount
too favourable to such managing partner. An
injunction to restrain proceedings on a judgment
recovered at law upon an award alleged to have
been made under tliese circumstances was con-
tinued to the hearing, in a case in which the
ultimate success of the plaintiffs at the hearing
was not considered as wholly free from question,
the amount of the judgment being orilered into
court. Wihon v. Jiichanhu)}, 2 Chy. 448.
See VI. 9, p. 155.
u-^
3. On the Alerlls.
Although the court are bound not to set aside
an award on the merits, yet they will interfere
when they see that either party has not had an
opportunity of explaining or examining into the
whole matter submitted. ^}iiall v. Jioqerd, H.
T. 4 Vict.
The court will not enquire into the grounds
on which an award is made even although it be
sugge^.ted that the arbitrators have opened a final
judgment of a competent court under a submis-
sion in the common fonu, if it doesTiot clearly
appear that they have reversed the judgment or
gone into its merits. McLevv v. Vandecar, 6
O. 8 481.
The court will not set aside an award iipo],
afiidavits setting forth a party's just claim to tin.
allowance of large sums of money, upon griminl,
which the arbitrators liaim an
affidavit of merits, except upon manifestly cluar
and stvong grounon,
lamb.-Robmson.
Ia judge in chambers will r
■oceedings on an award, in
iy be made in term to set
P sworn to are conflictin
P" the award may be i
■chmibers be made within f,
•".Umaniotioninbancii
V^»iiili,i)l. .J. 212.— 0. L. C
pereacause an - i.
fcthVH''^'",* was take,
[enthehrst jayof term.
P'tnatamotiononthelast
„; ,11*:
16 r
^^1
165
ARBITRATION AND AWARD.
Held, that an application to set aside a judg-
ent on an award, after a lapse of two years,
Wood V. Moorlie, 3 Q. B. 79.
I ment
1 was too late
The time given to move under 9 Vict. c. 37
I and 10 & 1 1 Vict, c, 24— viz. , one year — extends
to Upper Canada as well as Lower Canada. Com-
I wmoner of Puhlk WorH v. Dahj, 6 Q. B. 33.
An application was made during Easter Term
to set aside an award of the 9th December pre-
ceding, a term having elapsed after the making
of the award :— Held, too late. In re Matthews
land Webster, 1 P. R. 75.— P. C— McLean.
An award, under submission by bond, wa.i
Inade on the 31st of January, and a notice mailed
Ito the plaintiflF on that day, which was received
Ion the 2nd of February, the first day of Hilary
iTerm: — Held, that au .application in Easter
ITerm was too late. In re Gumming ami Oraham,
ll P. R. 122.— P. C— McLean.
An action of covenant was referred at nisi
prius, and on certain breaches asaicned a ver-
Jiot taken for specified sums, the damages on
lotjior breaches being reserved ; and as to two
b( the breaches particularly, a verdict was entered
lor £12.5, subject to the award. Tho rule of
[efcrencc required that the arbitrators should
leport ill or with their award the evidence and
jncts on which they should find the damages
Uvanlcd (if any) on either or both of these
freiches, so as to enable the court to determine
fhether such evidence and facts would in law
irarrant the damages. The arbitrators awarded
jages on each of these breaches, but omitted
J return the evidence or facts. A copy of the
{fidence only was found in court, not signed, or
pnexed to the award, or referred to in it ; and
ic facts did not otherwise appear :— Held, that
liiler the circumstances of the case and terms
[tho submission, the award might be moved
ijinst although the first term after it was made
' 1 expired. Murphy v. Cotton, 14 Q. B. 426.
Ilhc time for moving runs from tho time the
fefcmlant is notified of the award having been
jade, not from the making. And when it is
(le under a rule of reference, the court, on good
ic'jml shewn, will not always hold the party
I the strict rule of moving within the next
Dexter v. Fitzcjibbon, 4 L. J. 43.— C. L.
bamh.— Robinson.
Ia judge in chambers will not interfere to stay
xeedings on an award, in order that a motion
ky lie made in term to set it aside, when the
|ts sworn to are conflicting, and for all that
Mrs the award may be in accordance with
i facts proved. Qusere, should not such motion
Ichambers be made within four days after the
laril, as in a motion in banc in term ? Mc Lean/
mail, 5 h. J. 212.— C. L. Chamb.— Richards.
pviierc a cause and all matters in difference
i referred : — Held that judgment couhl not
H entered until after the first four days of the
m following the award, and, Semble, the de-
idant would have the whole term to move in.
piim V. McPherson, 2 P. R. 49.— P. C —
'lards.
Ifherc a verdict was taken, and an award
peon the first day of term, which defendant
me aware of on the following Monday ; —
, that a motion on the last day of term was
166
-P. C.
too late. Pn-hijv. Lofl.r, 2 P. R. 10').-
— Richards.
Held, that the undertaking set out in this
case, given on the last day of term, was a waiver
of any objection aa to time, so that tho motion
might be made in the following term. McXuIti)
V. Jnbmn—JohioH v. MrXult;/, 1 P. R. 119.— P.
C— Bu'-n3.
It would seem that a motion to set aside an
award in this court, must be made within the
common law term following the publication of
the award. Re. Tirjlor nnd BoMwkk, 1 Chy.
Chamb. .53.— Esten
(b) Affidaril.i and Pra-'tke.
Where there is no provi.iion in an order of
reference at nisi priua to mike it a rule of
court, the court will not set a.';ide the award.
Cumminij v. Alien, Tny. 205.
The court will refer to papora delivered by the
arbitrators simultaneously with the award, and
intended to 1)0 explanatory of it, as a part of
the award itself. Hall v. 'feri/uwn, 4 O. S. 392.
Where it was aworn that tho original was
in the possession of plaintifT's attorney, who
refused to give it n\>, a rule nisi was granted,
which was afterwards made absolute, on the
production and verification of copy of the award
served. Steen v. (I'his.-i, M. T. 1 Vict.
Fiict^ relied on to sot aside an award must be
diijtinutly sworn to, and if ,^
;:ii:
107
ARBITRATION AND AWARD.
108
169
11
It; i '
procecdingB, witli tlio exhibits, were annexed,
with ft cortiticate HiKnoil by the arbitrator,
dated llth May, ntating that he certified the
Hame to
l^e um^lemanded^ 4'
"• 1- <-•— Macaula
|«ienuant, as it is an affid
I'tt^chment has been orden
169
ARBITRATION AND AWARD.
170
m«i.e, denying nny l>inilinu; ftiith»>ritv to thus ex-
tenil the reference, and liis nath lH'inj» unnn-
swercd, set aside the award. In n Unix rln v.
Immn, 2 L .). N. S. II.- P. ('. •Hft;,'arty.
It in no objection to a motion to Net iv«ido an
award, that the award has been made an order
of court. In rr Liiirn(iii ond ffulrhiimtii, 19
Chy. 84.
NIII. KSKORCINO AWARP.
I. MiiH-iiiij Aii'iinl a liiih of Cinirt.
Where a case has been referred and an award j
made, such award must in all cases be made an I
(ircler of the court before any other order in the I
I (mue can be made. Wiiiliimrfh v. McI)ou.
In an application for an att.ichment for the
nonpayment of money awarded, the submission
being by bond, the rule nisi was intituled "in
the matter of A. r. B." The atlidavit of service
was intituled in the same way. The rule mak-
ing the submission by boml a rule of this court,
was intituled in this court, "A. r. B. " The affi-
davit of the execution of thcawanl was intituled
in this court only :— Hehl, that the intituling
of the rule nisi and the affidavit of service thereof
was correct : — Held, also, that there was no
material variance between the intituling of the
rule nisi and the other previous papers, /n re
Berk-ett v. Cotton, 5Q. B. 271. -P. C.— Macaulay.
The original award must be brought into
court, and the rule for attachment drawn up
upon reading it : — .Semble, that such rule may
be granted on shewing service of a copy of the
award, with the demand of performance ; the
original having before been shewn to defendant.
McLean w. Kemr, 1 P. R. 125. -P C. -Burns.
The rule for an attachment for non-payment
of an award, is properly a four not a six day
rule. Jonesv.Beu/, IP. R. 247.— P. C.--Bum8.
All matters in difference in a cause and on a
building agreement between plaintiff and defen-
dant, were referred, costs of the cause and of
the reference to abide the event. The award,
after disposing of the different issues in plain-
tiff's favour, assessed his damages over and
above his costs and charges at £52, and fixed the
costs of the reference and award at £20. The
costs of the suit were afterwards taxed without
notice to defendant, and a demand made of the
amount awarded, the costs of the award as fixed
by the arbitrators, and the taxed costs : — Held,
that the want of notice of taxation was not a
ground for setting aside the award, but for with-
holding the attachment until the costs could be
revised : that the demand upon which the attach-
ment was moved for, though too large, in includ-
ing the costs of the award, was good as to the
rest, each sum having been separately demanded.
The rule for attachment was therefore mode ab JO-
lute, but the writ was ordered to lie in the office a
month, to enable the defendant to get the costs
of the suit and award taxed, and make pay-
ment, lb.
A rule nisi for attachment, drawn up "upon
reading the rule of court, award, allocatur, and
papers filed in this cause " is insufficient ; the
affidavits filed, and necessary to bring the party
into contempt, should be specifically referred to.
Dickey v. Mulholland, 2 P. R. 169.— P. C —
Hagarty.
When a rule nisi on the face of it refers to
papers and affidavits filed, this is sufficient in
ordinary cases ; but in applications touching
awards, and in proceedings to bring a person
I'nt
liMMr^
■ , i.
■A
^■p
171
ARBITRATION AND AWARD.
17:'
\'
I
'«!
i
■
i:
i ■ :
i * ■,■
H:
into oontempt, thu paiticiilar inateriala moved
upon RhoiiM lie speciHcil. /ffukvUi v. Wnnl, 17
('. I'. (>ti7.
A power of .ittonuy I'lom oiif nf (liiee dcfeii-
flants to (kmaiiil th(! cnnU is millioicnt, payment
to one being paynn'nt to all. S/iipnuni v. Ship-
mo,,, 2 P. K. .'J!)3. -I'. *'. -McLean.
Semlile, that the court, when nnphcil to luuler
('. S. U. (!. c. '2i, H. 19, for a nilc to p.iy over
money awanleil, will exorcise the Hamo discretion
(iH formerly on motion for attachment, for which
this remedy is now sulistitutcd. Watson v.
Gnrrell, .1 P. R. 70.-0. [,. nhamb. -Richard?!.
To olitain execution iiiiltr that nection it
is not fturticient to make the mtljmiH.sion a
rule of court. The defaulter must be called
upon to iihew cause why he Hhoulil not pay,
!ipecifyinj{ the sum, ami a rule absolute f>b-
tainc(l. lie Tlio„i(is (mil l>,-iiiiki\ W P. It. 78 ;
yimim-ii nnii Drh-nit li'wi ,:■< //. IT. ('<<. v. liiick-
ii'df, .1 P. R. 82. - P. ('. Ilich.'uds.
The award directed payntont of a .-lum by
monthly insitaliucnt«, with a pniviKo that im
default in any of them th(' wliole .should fall
due. Qua>re, whether the court would order
payment of the whole sunt, utdes.H it wero tihewn
that defendant had notice of the award before
default. Xtiiii(i,-ii it,-uit Hii'i ,-H /'. ir. Ca.
V. Uucku-i'll, ;{■ I'. 15. 82. P. C. liichard^.
To enforce performance of an award, the proper
mode is to servo an order that the jiarty do
within a time therein to bo limited perform the
award ; which order must be endorsed with the
notice required by the 4(!th of the orders of
1853. An attachment is.sued for non-pcrforni-
anee of an award, when no such order had )»ccn
served, was set aside with costs ; although an
order making the award an order of <'ourt with
f,ueh notice <'ndorsed, had been duly served.
Wilson V. Switv:,; 1 Chy. ( 'liamb. 44, — Ksten.
(b) Other Cii. ■«.■!.
'Wlierc executors submitted to aibitration,
%vith a proviso that it should not bo taken as an
admission of assets, and the arliitrator.s awarded
that they slumld pay a certain sum, without
stating that they had assets, a rule for anattaeh-
mcnt against them for non-payment was refused.
(lilkrt V. Simpson, M. T. 7 Vict. — Jones.
An attachment will be ordered against a i)arty
who Hies a bill in e(juity, contrary to his under-
taking in a rule of refereiK-e, and in disregard of
a rule of court made thereon. .)f(tnn('rs v. Clarke,
1 Q. R. 101.
The court will enforce pcrforuianue of an
award by attachment, though it extends to the
delivery of possession of land. McPhc'son v.
Walkvr, 1 P. R. 30. ^P. C— Draper.
An attachment will not be granted where a
new arrangement has 1)een made between the
parties, subsequent to the award ; but the suc-
cessful party will bu left to his action on the
award. Thompson v. Marklcn, 1 I'. R. 293. —
P. C. — Draper.
A party intending to attach, should j)roceed
with reasonable dilligence. JJcj-tar o. Fifztjibbon,
4 L. J. 43.— C. L. CTiamb.— Robinson.
Where an award iti vague, and defendants
nwear that it is imposaibk to comply with it,
owing to thf! uncertainty, an attachment will h^
refused. /„ ir Mnnhi/ v. Anderson, 2 P H. I()i;
-P. ('. -McLean.
The execution by defeiulant of an a.H.iigniiii>ii>
in trust for his creditors, by whii^h the plaintiff
is to l)c tirst paid, and the acceptance of ru'Ii
assignment by plaintiff, is no answer to an appji.
cation for attachment on an award previonalv
made for the same debt. MrKi'ndcv. .\fi-l\iii,^
2 P. R. 157. -P. C- Burns.
Where the costs of the cause were to alml-
the event, but no authority was given to direct
a verdict, and the award was silent as to cnats :
—Hold, that attachment was the proper rcnicily
for their recovery. Shipjnnnv. Shipmi,,,, 2 I', |;
39.T -P. ('. -.McLean.
The award in this case ordered certain Kciiiri.
ties to be assigned to a trustee, who was to rlii.
pose of them, and out of the proceed.^ pny j
certain sum to the applicant : — Semtile, imt an
award on which an order to jiay wouM he
f ranted. lie Thomas n,iil Jii'oukr, 2 P. 1!. "8. -
'. (,'.— Richardn.
This court has jiiri.siliction to carry out tli»
terms of an award which directs the paynifiit
of money, although the reference contained tv, \
submission to p.ay, where the reference has Imn
made an order of the court, and will in .sncli a j
case ordei' .'i reference to the master, and nn
oblige the jarty to sue at law. Ar,nsli'iiiiii\\
Ciii/tii/, 2 (-'liy. Chamb. 163. — Vanlvoughnot,
3. Knttrin;/ Jiitli/mcif.
WIk^ic a cause was referred on a vc'rdict takn |
by t'onsent, and the award made in vacition,
linal judgment entered before the next ttm I
was held to be irregular. Vlnrmt v. MfLmi,
Dra. 108.
A plaintirt' who takes a \erdict subject (diI
reference, but does not proceed to an arbitratii'c, [
owing partly to the fault of the arbitratun', I
partly to the delay of the defomlant, (Miiiuij
enter judgment on the verdict witlidut liwl
applying to the court. Afott v. Limrhi, T. T, f
1 & 2 Vict.
And the court will not allow such jii(l)^iiiinll
to be entered, (tould v. Fri'cman, 3 i.^. I>. 21(1 1
Where on a reference at nisiprius, a venlii'tiii
taken subject to the award, and thu cause ciiilvb
referred, and an award made, judgment may It j
entered after the first four days of the .succectlf
ing term. But when matters not inchulcil in|
the cause arc referred, judgment cannot Wl
entered until after the next succeeding term f
Itaivke, V. Dtir/gan, 5 Q. B. 636.— P. C— T)ra]icrl
Where a cause "and all matters in difleroiicc"!
were referred : — Held, that judgment coulil initj
be entered until after the first four days of IheJ
term following the award : and Semble, tkel
defendant would have the whole term to iimvC
in. Williams v. McPherson, 2 P. R. 49.-1'. CI
— Richards.
A verdict was taken at the autumn iw^izwl
subject to an award, which was made in MjJ
following, and the plaintitt', without waiting
until after the fourtn day of the next ter
17.1
iinini'diatelv entored
llilil, rcgiifiir. l.,i„i-\
I'. ('. ihini.'..
WUvto a verdict in
iiiadi' until after the
in'i'il nut «;iit to enter
llic liiHt four day.s nC
I .iHai'ii. Itlmiiliiiril v.
'^(■iiiMe, tli;it iiiiijei' t!
I Mil jui' leiit could I
a».iiileil, without aiii
.l/iii-y//// V. ( '(ill,,,,, I f (J
UJRiv a plaintili; in
lis ilit'M alter tli(. 11 wan I
I till' .-■nit does not aliati
|(Nti'iaiii
Ijs' notice of the award
Vveil mwn the attorney wl
I the arbitration, but wlio d
BitiHise to represent him
m, that the ser\-ice ^vas
li*v. Puller, 4P. K. (jj -^
4. Hi/ Acfiu)
(a) Pleadbui
NMtioi, of husband and
*«ttle the allowance in lieu
Ponon submission bond ■
f*il^'.>iteijman, Tay. 498.
£? °" ''^^'''•J that defej
Wtfl£149onadaymentioi
■nffshoulddeliverupaho
I on the same day i—HeU
Knt acts, and that the p
Nmess to perform hia part
k it ia sufficient to aver rea
r^w, and where to a plea
u^
17.T
ARBITRATION AND AWARD.
174
,i,i,),.(lintc'lv riiti'icMl u]) juilgiiu'iit tliiToon :-
iv>,ni(iir. /.(iiirii v. l!ii!Hill, I I'. I{. .'III.
Illll'l>:<.
I'. «'.
Wlivi'u II vi'i'ilict in tiikt'ii aixl tlui awunl imt
iii'iilo until iifttT tlio iiixt tt'iiii, till! iplniutitr
H 111 lint «!lit tcl I'lltcr IliM jllllt,'llU'llt until llt'tt'l'
the lii'nt four (liiyM lit' tliu tui'lii IcilliiNviiig tlic
;,„,uvl. ni'iiirliiiril V. Si,!,ln; 'JH l.i. 15. '.'10.
Siiiilili', tli;it iiiiilir t!i(' Hiiliiiiissiiiii in tliis imsu
1 ii'iit iiiiiiil 111,' I'liliTi'd ii|i fur tlio Huni
to till'
iiirt.
i« inl'''li without iii)]ilic;itioii
';,'„•/,/,;/ V. Cn/t,,,,, I4(.>. It. fjd.
Wliri'o ii idaiiitill, ill wIiomo favour :iii iiwiinl
,. ilii's after tin? iiward, l(ut liofoiv jiulgiiit'iit,
\\\k Miit ilocs not aliatc, lint judginciit may lie
,i,t,iiil uiKk'r tlic 17 <'ar. II. c. H. No oxi.'i'ii-
Itii'ii, liiiwivfi', can iHsuu in tliu iiaiiif of iplaiiilill's
l.Aivutor without reviving till' juil^'iiii'iit. Pmrlur
\,..l,urh, ir><^ 15. I ST.
Willie a venliet wan taken, ainl an award
iiiNiile (111 till! lirst day of the term following, on
Iwliicli jiulgnielit wa.s entered soon after that
ItiHii: ^''•''''' ""^ *"" >*"""■ /''•
All iipiilieatioii to set aside a judgment,
lli.iimleil on u verdict wliieh was taken for the
IliUiii''" ""''.i'-''^'' to a reference to arbitration, the
niiilLnneiit having been entered up before the
Liiiratiou of four day.s
xiiiratiou oi loiir iia^.i HUceeudiiig the day of
mkiiiL' the award, was refused. ViiiiXoriiKtn
Hagarty.
Jiiili,niieiit may bo eiitei i^ 'fiou an award
fcailu mi a reference at nisi jirius under the ci m-
ilMiry uhui.ses of tl'<' C. L. 1'. Act, although no
liiliLt lias been ta'. .i, without the formalities
IriiiLi'ly rciiuired in the case of an attaehment
br miiipuyiuent of the amount awarded. An
del' for leave to enter such judgment is not
:essary. McXeil v. Liiirlex.^,'^ F.. J. N, S. 1!)0.
k'. L. Chivinb. —A. Wilson.
I. \ County Court and a Division Court suit,
i all disputes were referred, and a sum of
iouey awarded, to be pain j A. to B. after ten
lya' notice of the award. The notice was
Cveil uiwu the attorney who had acted for A.
1 tlio arbitration, but who disclaimed any right
ffitrwise to represent him on application for
|ve to enter judgment for nonpayment ;—
¥1(1, that the service was insultieient. //( ir
Vv\: Poller, 4 P. U. CI.— P. C. -Hagarty.
4.- By Action.
(a) Pkadinij.
leiiaratiou of husband and M'ifo. Reference
nettle the allowance in lieu of alimony. L)ecla-
Bonon submission bond. Special demurrer.
pti; V. Hteijman, Tay. 498.
ulebt on award that defendant should pay
IntiS' £149 on a day mentioned, and that the
latiff should deliver up a house to the defend-
I on the same day : — Held, that these were
mmnt acts, and that the plaintiff must aver
ailiiiess to perform his part. Bal:er v. Booth,
tat it is sufficient to aver readiuess to deliver
ili(j premises without actual delivery, and
reraA ; and where to a plea that the defend-
ant demanded the award from the arbitrator on
the Titli of Fcbriiivry, the iilaintitV re|ilied u
publication and luitico of the awiinl on the (ith,
(the day when tlie award was to be made), the
replieatioii w;is licM i,'iio(l. Itiiki r v. Ilnnf/i, 'J
o. ,s. :{7:t.
declaration in dilil on a Hubiiiissidii bond,
averring that the awaid was made on the day
appointed. I'lea "no award." Ileidication —
an award w itliin the tinie to w it, on a day and
year diU'eii'iit from the year stated in the declar-
ation, lieplicatioli held siillicieiit on general
ileiiiurrer. ./loA/i' v. .Iinhii, ,">(>. S. (lO'J.
Nonpayment nf the inoiicy awarded is a sulli-
I'ieiit breach, williiiut averriimiiotiee of an award.
I'll fill r \. Alii'iiii, ."><>, S. ■!.").
When the submission does not limit any tiiiii'
for the award, plaiiititl' need not aver that it was
made within a ii^asonable time, iioi' allege notice
of. the nward. Ai/umi v. J/mii, ■'> i.). U. '29'2.
.Money awarded was held under the circum-
stances, not recoverable on the eoiiimoii counts.
Ilnlilili V. MrCiirt/in, .")(). S. .
Ill debt on bond to perform aii ,i . ird, u plea
setting forth mere legal groni'ds > objection
and concluding to the country, is 1 nl ; and if
there be two separate parts in i.ie award, an
answer to one part eaiinot In ileaded i i bar of
both; and if two breaches assigneil in Hiu
replication, it will be sullieient o' !.;t;neral
demurrer if one only be .•_».
In debt on an a'nird in favnvrof tlie King.ston
JJaiik Comiuissioiier.s, under 10 Ceo. IV. c. 7.
the declaration set out an award that ^defeii-
diuit shouhl jiay i'OOO in bills or notes of the
bank, or bank certificatcH, or orders for stock,
by a certain day ; and assigned as a breiich non-
payment in the terms of the award, but did not
negative payment in money: - Held bad, on gen-
eral demurrer. Kiinis/nn Hunk ('miiiiii-i^iniii'rK v.
Dalloii, K. T. .3 \'ict.
I'lea of no award by arTiitrators, or by umpire,
(lull/ appointed : Held, bad on special demurrer.
Criihi-r V. Ilinjijiiii, (JO. S. ."OS.
declaration in debt for UIOOO, allegiiip- a refer-
ence between plaintill' and defendant, by bonds
with a penalty of t'lOOO, and setting out the
award thereon, assiijiiing breaches for non-
performance, and concluding "whereby an action
had accrued to recover the sum of £1000 above
demanded :" — Hehl bad on special demurrer, as
an informal declaration on the bond of submis-
sion. ShnpsDH V. Minli; (! O. S. Till.
A set-olF of a sum certain 1j a good plea in
debt on a aubmi.iuiou bund, asjigning as a breach
the non-payment of a iium certain awarded.
Liiulfonl v. Miisji-ofr, O. S. G4'J.
Award to be made in writing. Pica, that the
arbitrators did not award in writing under their
hands : — Held, bad. Hahi/ v. Daorniiort, (j U.
S. 643.
The effect of a ropuguancy in a replication,
setting out an award, to the submission set out
on oyer, as regards the name of tlie arbitrator.
Teicskij V. Dunlop, 1 Q. B. 1.33.
Where plaintiil' and defendant refer all causes
of action, and after an award given plaintiff sues
■J-T
175
ARBITRATION AND AWARD.
m
v\ '
^it!i
defendant for a causo of action not brought
l>ofore the arbitrators, on the ground that lit) thvn
liad no linowlodgu of it, nn iasmt tuiulercd as to
Buch knowledge in material. /.iiMi/ v. Win-
Volkrnhuriih, 1 Q. B. '-'14.
riuintiif declares in debt on bond for tiio ju'r-
fonniuiee of an award. Defendant pleads no
award upon the preinises. !'; intitt' replies set-
ting out the award. Defendant rejoins matter
oxtrinsiu of the awiu'd, and relies upon it for
shewing the award void. The rejoinder is bud,
08 being a departure from the plea. Mn.iiivll v.
h'anmm, 1 Q. K. 219.
Plea of performance, replication denying it
only by inference — Held, bud on special dennu'-
rer. Lijmhurner v. Xorloii, I (J. IJ. 485.
A variance in the names of arbitrators - Held
no ground of nonsuit. Uentify v. }l'<'nl, 4 Q. B. 98.
Defendant set out tlie condition on oyei-, which
was for the performance of the award of arbitra-
tors, and pleaded " no award made. " Thoplain-
titf replied, showing an award made ut the
proper tin:e and with the proper formiUities, and
setting it out ; and then averred notice by de-
fendant of the award, and assigned two breaches.
The defendant rejoined, setting out the award
verbatim, and then demurred separately to each
breach : — Held, that the defendant could not by
thus setting out the award in his rejoinder by
suggestion, make it a part of the pluintiif's
replication, as in the Civse of a deed pleaded with
profort ; and that the defendants dennirrer should
have been to the replication, and not to the
several breaches assigned in the replication.
But upon the whole record judgment was given
for the defendant on the demurrer, because the
awiU'd as set out by the plaintiff himself in his
replication was void. Benedict v. Parh, 1
C. P. 370.
Plea in assumpsit on an award, held bad on
special demurrer for not identifying the matters
referred with the cause of action, ('(tlvin v.
McFhenou, 4 C. P. 150.
Debt on submission bond. Seven pleas object-
ing to v;didity of award, all held bad on ile-
murrer. Finkle v. Arnold, G Q. B. IGS.
Declaration on a bond of submission to J . and
Ii., of an action brought by plaintiti' against
defendant, with other matters, with liberty,
either before said arbitration (U* pending said
reference, to appoint an umpire. '1 he coiulition
was, to abide by the award of the arbitrators, if
made on or before the KJth of June, 1855, or if
they should not make their award by that time,
then by the award of the umpire, if made on or
before the name day. Plea, no award by arbi-
trators or umpire, on or before the 16th of June.
Replication, tliat the arbitrators before entering
on the arbitration appointed an umpire, who
with the said arbitrators, within the time limited
for making the award by the umpire, to wit, on
the 1 6th June, 1855, awarded that there was
due from defendant to plaintiff £55 ICs. Id.,
upon balance of accounts, and also £5, costs of
the arbitration, which sums they awarded de
fendant to pay to the plaintiff, &c. : — Held, on
demurrer, replication bad, for, 1 . H the award
could be supported at all, it could only be as the
award of the two arbitrators, and should have
been so set out, to make it in accordance with
the submission. Roddy v, Lester, 14 Q. B. 259.
Proceeding by attachment on an award ia im |
bar to Hubse(|uent action on the same award,
thiiugh tlie court may stay tlie action sotliiUtlic |
defendant be roleuscd from the uttuchiiiviit
/)e.rter\. Fif^nihlnni, 4 L. J. 4.1. -C. L. t'luii,,!,.
Itubiiison.
Ill a declaration on an awanl that defciidant |
Hliould make, execute, and deliver to the plan
titfagood and sullicicnt conveyance in fee sim.
]>lt<, with tiic usual covenants, of certain l.iiiill
H|)ecilicd. Breach that defendant never had am f
title, find so could not perform the awjirl f
Plea - that defendant did, in pursuance of tlinl
award, execute and tender to tlie plaintiti' 8iidi|
deed as in tiie declaration mentioned: -lli'li|,|
on demurrer, plea good. Andermm v. I'm
Biixevk; 18 (l B. 172.
All action on an award, to which the defen.
dant pleaded perfoi'inance only. At tliu triil
a verdict was entered for defendant, with \mt
reserved, if he was not so entitled, to ent«ri
verdict for the ])laintitf for £2G 9s. and interest:
—Held, under tlie special circumstances set om
in the case -I. That defendant was not eiititleil
to a verdict in his favour, for though tiic awanl]
was unauthorized, yet ho had not objected to it,
but pleaded performance, which he had dcarljl
failed to prove. 2. That a verdict must go fi
the plaintilf for the £26 9s,, as it had tKienit|
agreed at the trial, although under tiic dfm-
stances the plaintiff was not necessarily entitldj
to that sum, the defendant having oifered to ilt
all that be had a just claim to call upon himk
lb.
The submission and award being set out ^
full in the declaration ; qux're, whether an objiC]
tioii that the award was not final, could '
raised by plea, or whether defendant should
have demurred. Ellwowl v. The Corpomt'm 4
the County of Middleneu.; 19 Q. B. 25,
To an acti(ni on an awartl defendant, afi
setting it out ut length, pleaded, I. That tl
arbitrators awardeil upon matters not subraitti
and which accrued after the subniissiou,
upon accounts between the parties to a jitni
long after the submission ; 2. That the awi
was not tinal, in this, that tiio sniJ mat
relating to the Berlin property were matters
difference, and were submitted to tlic arbit
tors, but that they did not award tliereon ,
in this, that they did not dispose of tlie differei
respecting the value of the (iuelph property, '
left the same unsettled and dependent upon tl
sale thereof by the plaintiff, when only the anioi
to be accounted for to defendant coukt be
termined : — Held, on demurrer, both pleasgi
and as to the second plea, that the avenuent
to the Berlin property was a sufKcient defem
and the plea therefore sufficient, although
award as to the Guelph land was not wantinj
finality :— Held, also, that upon the evidence-
out in the case, the first plea was not pmvi
Stewart v. W'eb.tter, 20 Q. B. 469.
In assumpsit on an awaril the plea of nunrt
indebitatus puts in issue the submisaion, |
onlarcement of the time, and the making of I
award according to the submission. AIMl
Skinner, 7 L. J. 158. --C, C— Mackenzie.
In debt on a submission bond a plea of i
quam indebitatus puts the submission in i
Abbott v. Skinner. 11 C. P. 309.
1177
Defendants hpnii]oH i
Ition ploadey:~Held, on tho author
ay to V. Blake, G If. &
*;r1«i'*»'*g"'jdplca tt
^'"''^"ffalo and Lake Hu
The eleventh pica to tin
in count for money awa
jrd mentioned and the t
pd in the first count 'a s
m], were the same .~ii\
Arbitrators having award
e plaintiff for injiioul
an action on the award dot
mtable grounds, that the
fcesjively and fraudulently
'affl was made by the frai
~tion of the plaintiff
™git;-Held, ondemun
a be
er
eeri
Ntiff declared on . .
ing that the arbitrators
flerence, amongst oth
:'"/''«C P.Vweer,
taltbt defendant shoul
oi the reference and of i
J^nt pleaded non est fL
'ktheniatterrelatinJtoth
X'«lprevioust"tiB''a'!
•«"orney,„ the suit i„*j
177
ARBITRATION AND AWARD.
im
Dcfcnila»ts boHidoH (iRinnrring to tho doclara-
Itioii pleatlod, settiiiu; out tlio wholo award in tho
Ideclaratiou and ,'iUugiiig that it was void on the
I face of it, for not iteoiding all tho niattorn
Iroforrod, for want of linality and for oxcoss of
Luthiirity : Hold, i>h'iv had, iw putting in iHHUo
lumlttT of law alroady hroiight up hy tho do-
limurer. Sltii""!! v. Murtiii, 'J'2 Q. H. IM.
Action on bond. I'lca, that tho hond w:u:
Icuiulitionuil to i)orforni an award, and no award
Imade. I'laintill" niUHt ruply Hpociully, ilenying
■the uouditiou, or Hitting out an award and allog-
liiiii H breach ; ho cannot tako iusuo. t'omin v.
Ill/il/f, !> !'• J- 131. — C. L, (Jhanil). - Drapor.
The dculari, ion, aftor rociting that cortain dif-
ireiices iialeading8 in tho case of
awards ; but that, tho declaration showing tho
submission on n certain day and the award within
a few days thereafter, the court would intend it to
have boon within tho stipulated time, and that
it was certainly within a reasonable period, and
within throe months from tho appointment of
tho arbitrator : — Held, also, not necessary to
aver a demand to comply with tho award, or
that a reasonable time had elapsed before action.
IMd V. Udd (AdminktratruJ, 1(5 C. P. 247.
'J'ho court had decided that one portion of an
award was bad, but the other portion good.
I'laintiff sued for non-compliunce with the latter,
but omitted to set out the former part : — Held,
that the omission was immaterial ; out that even
tho omission of a material part could not bo
objected to under a denial of tho award in the de-
claration mentioned, liondv.liond, IGC. P. 327.
See Oerrie v. McDonrtdl, 18 Q. B. 140. p. 120.
(b) Evidence.
In an action upon a submission bond, pica,
non est factum, and subsequent suggestion of
breaches by the plaintiff, it ia sutlicient to prove
the bond and suumission set out upon tho record,
aiul an award tallying with it. Losxlnrj v.
Horned, Tay. 219.
Ill an action on an award, with the common
counts, the hulnnissiou to arbitration as set out
in tho declaration mentioned three defendants,
and the award in reciting the submission only
noticed two, but referred to tho rule by which
the submission was made as annexed to tho
award, in which rule the three defendants were
named : — Held, that the variance between the
submission set out in the declaration and that
recited in the award was immaterial, as the sub-
mission itself agreed with tho declaration. JIak
V. Matthvaon, Dra. C3.
In debt on an award under bonds of submis-
sion, it is necessary to shew a mutual submission,
and to prove the bonds executed by all the
parties ; but where the defendant at the trial
accepted a credit without objection for money
paid on the award, he was held precluded from
objecting that the plaintiff had not proved his
own execution of the boml. Skinner v. Ilolcoinh,
G O. S. 33G.
In debt on award the declaration recited a
submission by bond, averring that under it the
arbitrators had made an award upon one of the
matters in difference, the other matters having
been by consent withdrawn, and that afterwards
the other matters having been again submitted,
the arbitrators made an award in favour of the
plaint'fFs. Defendant pleaded no such sub-
mission, and never indebted. At the trial the
plaintiff' proved the parol submission, but not
tho bond, and a point was reserved for the de-
fendant to move upon that objection. The court
on motion for a new trial (the verdict being in
accordance with the justice of the case) refused
to interfere. Hdhi/ y. Duvenjiorf, 3 Q. B. 13.
I;
t\\
2
'< i
179
ARBITRATION AND AWARD.
180
I I
Held, that an award made after the time had
elapsed could not be taken as evidence of an
account stated. RutJtven v. Ruthven, 8 Q. B. 12.
Semble, that the award was not admitted by
the pleadings in this case ; but — Held, that it
was sufficiently proved by shewing that the
defendants paid a portion of the sum awarded,
and that their officers had stated in writing the
particulars of the award, and the sum remain-
ing due on it. Hughes v. Mutual Fire Ins. Co.
of District of Newcastle, 9 Q. B. 387.
The plainti£f and defendant having a dispute
referred it to M. to determine ; and M. having
heard their statements, awarded that defen-
dant should pay to the plaintiff £25. Subse-
quently, at the request ot the plaintiff's attor-
ney, he made a written award to the same effect,
and delivered it to the parties. The plaintiff
having sued as upon a verbal submission : — Held,
not necessary to produce the written award, as
it appeared from the testimony of the arbitrator
that the verbal decision was in fact his award and
so intended. Davis v. McGivern, 11 Q. B. 112.
Where a plaintiff proves such an award as
stated in his declaration, its legal effect or val-
idity is not involved under a plea of mil tiel
award. Hartley v. Huntley, 4 C. P. 276.
Plaintiff need not shew that the award was
executed by the arbitrators at the same time.
That is assumed in the first instance, but defen-
dant may shew the contrary under a plea deny-
ing the award. Sullimn v. Kinij, 24 Q. B. 161.
See Smith v. Geonje, 12 Q. B. 370.
In an action founded upon a bond conditioned
for the performance of an award : — Held, that
under a plea of nul tiel agard evidence is admis-
sible to shew that the arbitrators took into their
consideration and decided upon matters not refer-
red to them. C'arn'th v. Fortune, 12 C. P. 360.
In an action on an award it is sufficient to
produce tlie submission bond executed by defen-
dant, without that executed by the plaintiff.
Towsky V. Wythes, 10 Q. B. 139.
A municipality by by-law opened a road across
plaintiff's property, and arbitrators were ap-
pointed under 16 Vict., c. 181, to detennine what
compensation should be paid to him. Afterwards
a resolution was passed by the council that the
arbitrators so chosen should be instructed to
take into consideration tlie damages to tlie plain-
tiff's crops and fenoca, so that all differences
might be settled ; and they awarded separate sums
for opening tlio road and for damages, respec-
tively. The plaintill' liaving brought debt on
tliis award, defendants pUjadeil no award:— Held,
that under this plea they could not dispute the
arbitrators' authority to award tlie latter sum ;
but should have moved to set aside the award,
or might have pleaded nun(iuam indebitati to
that sum, wliich would have l)ronght the sub-
mission in issue. f/inti/Min v. Municipaiitii of
Whithy, 17 Q. B. 230.
To an action on an award defendant pleaded
a set-off for costs of defence in certain suits due
to him by the same award. The award recited
a submission of an action in the C. P, by plain-
tiff against defendant, and also of "all other
matters of difference, action and actions, suits,
and controversies whatsoever," and awarded
that defendant should pay all coats of said suit,
"and all other law costa occasioned by any suit
or suits, action or actions, either at law or
equity, had about and regarding the premiscj,
and brought before the execution of said bondj
of aubmisaion to arbitration ; and we also order
and direct that no further proceedings shall be
had in any or either of said actions :" — Helj
that the defendant could not under his plej
recover for costa of suits in which judgment had
been given before the reference, for they were
not included in the submission or award :-
Held, also, that the evidence of the arbitraton
was rightly received, to shew that such costs
'vere not intended to be allowed. Campbell y
Howland, 19 Q. B. 18.
The declaration on a submission bond alleged 1
an award that defendant should pay the plaintiff |
$540, and each pay their own costs of the sub
mission, and that $60, other costs, should be paid I
by them equally. Pleas, denying the submisaioD
and award. The plaintiff' proved the execution
of defendant's bond, and gave secondary evi-
dence of having executed a similar bond himself,
which was given to defendant, and of the I
appointment of third arbitrator endorsed on it,
having served a notice to produce on defendaut's
attorney, at 11 a. m. , on the day previous, the
commission day, defendant living seventeen I
miles off, at a place to which there was a dailv
mail : — Held, 1. That the execution of plaintifi's I
bond being put in issue, it might be presumeil I
to be in possession of defendant's attorney ; anil j
if it were not, that the notice under the cireuni- 1
stances was sufficient; 3. That the plaintiff I
having paid the $60, was not entitled to recover I
half of it from the defendant. Sulliron v. Khhi l
24Q. B. 161.
To an action brought upon an award of cunipen' I
sation to the plaintiff under the Railway Act fori
injuriously affecting his land, defendants pleadeilf
that the sum awarded was excessively and fraudu I
lently exorbitant, and that the award was oh I
tained by the fraud, covin, and misrepresentation 1
of the plaintiff and the arbitrators. At the trial,!
to support this plea, defendants called several witl
nesses to prove that the sum was grossly exceif
sive. None of these witnesses, however, had beeil
brought forward at the arbitration, altliough del
fendants could have called them then a.s well ail
at the trial ; the award was clearly snstainedl
by the only evidence before the arbitrators ; uif
attempt was made to impeach the credit of any d
the witnesses who gave it ; no iniscouduct wii
proved on the part either of the plaintiff uro
the arbitrators ; and the arbitrators, being s\vurn,|
denied any improper moti\ e : — Held, that uiidej
these circumstances the evidence as to value (
witnesses not before the arbitrators was iiiadl
missible in support of the plea. Quaere, wliethel
anything short of actual fraud could suppoi^
siich a plea. Widder v. 7^ lie Buffalo kwI /.«'
Huron R. If. Co., 24 Q. B. 520.
Upon appeal from the above uecisioii ;— Heli|j
Per Richards, C. J., Adam Wilson, J., iMorr
son, J., and John Wilson, J., such evideuci
could not be wholly rejected. Per Drapej
C. J., Mowat, V. C, and Spragge, V. C,
was not admissible. iVitlder v. I'hc Buffalo fl
Lake Huron R. IV. Co., 27 Q. B. 425. See.alM
Daly v. The Buffalo and Lake Huron R. II'. fflj
16 Q. B. 238.
can be prove
I Semble, tliat an objeci
made the award withe
could bo taken advanta^
[jward. Smith v. George
. In an action on a bond
|cf authority in giving coi
McM no objection to tl
[were not sued for. Roddt
Defendant became b(
penalty to abide by an ai
parded $400 to be paid
II in three instalments
leeured by defendant upo
#Me at a future day. I
|he first instalment, nor si
Jhird in the manner direct
^^^ was entitled to assess
ale three instalments
327.
, First count of declaration
it 8400. 2nd. For $85.
loanded on a submission, l
fence, whether partner
jbitration. Pleas, 1. Pa;i
lommon counts. On motioi
[or plaintiff, on the grouii
Irators exceeded their auth
fward, 2. That since the)
■noney had been received b-
"Its use :-Held, that as :
e upto the award at the
aken to set aside the a\
Ml not now set up sue]
Honeys had been received b
jfflts use, as alleged by d
[ward, defendant could on
»ewn the same at the trial.
fm< 14 C, P. 97.
behool trustees cannot be 1
Kc,4!)8. 9, for wilfully
Igtocomplywith an award,
:il
^i' ' I Ti'
1 i'
181
ARBITRATION AND AWARD.
182
The ftttesting witness to an award may be
compelled to attend and prove the award. Tay-
l„rv. Bostwick, 1 Chy. Cnamb. 23. — Spragge.
(c) Other Ciises.,
For non-pa jonent of money awarded in accord-
ance with a deed, the plaintiff should sue in
covenant. Tait v. Atkinson, 3 Q. B. 152.
Upon a motion against a verdict on an award,
the court will not go into the merits of the
^•award. Tliirkell v. Slmvhan, 4 Q. B. 13(!.
When an award directs two to pay each a
i certain sum, and one is obliged to pay the whole
because the other refuses to pay his share, the
t party 80 Paying <''''" compel contribution l)y
suing the othe# in covenant for non-performance
[of the award. Allen v. Coi/, 7 Q. B. 419.
Where the plaintiff liad been awarded a certain
i BUin in accordance with the terms of an iustru-
mtiit under seal ; for the non-payment of such
Ln award the plaintiff should sue in covenant:
he cannot sue in assumpsit unless some new
1 consideration, apart from the written instrument,
lean be proved, Tait v. Atkinson, 3 Q. B. 152.
SemWc, tliat iin objection that two arbitrators
Imade the award without notice to the third,
IcouW bo taken advantage of in an action on the
[award. Smith v. Georfje, 12 Q. B. 370.
In an action on a bond of submission, an excess
tot authority in giving costs of the reference was
|.-HeUl no objection to the award, as those costs
l^ere not sued for. Roddy v. Lester, 14 Q. B. 259.
Defendant became bound to plaintiff in a
icnalty to abide by an award. The arbitrators
liwarded $400 to be paid by defendant to plain-
jtiffin three instalments, tlie two last to be
pecurcd by defendant upon real estate, and pay-
able at a future day. Defendant neither paid
|iie first instalment, nor secured the second and
lliird in the manner directed : — Held, that plain-
' was entitled to assess his damages for the
"i three instalments. Bond v. Bond, 16 C.
,327.
First count of declaration on a promissory note
fcf $400. 2nd. For $85.18, under an award
Bounded on a submission, leaving all matters in
[liffercnce, whether partnership or otherwise, to
(ibitration. Pleas, 1. Payment ; 2. Set-off on
tommon counts. On motion to set aside a verdict
lor plaintiff, on the grounds, 1. That the arbi-
^tors exceeded their authority in making their
kward. 2. That since the making of said award
poney had been received by plaintiff to defend
ut's use :— Held, that as no defence had been
iet up to the award at the trial, and no action
jaken to set aside the award, the defendant
loulil not now set up such a defence ; and if
poneys had been received by plaintiff to defcnd-
int's use, as alleged by defendant, since the
Iwatd, defendant could on the pleadings have
pwn the same at the trial. McKenzie v. Sotn-
htr., 14 C. P. 97.
I Suing on an award will estop a party from
lenjing the authority of the arbitrators. Black
\ Allan, 17 C. P. 240.
I School trustees cannot be held liable under 23
lict, c. 49, 8. 9, for wilfully nefjlecting or refus-
bg to comply with an award, without being first
afforded an opportunity of explaining or justify-
ing such non-compliance, (iraham v. Hunger-
ford, 29 Q. B. 239. See also, VnnBnren v. Bull
19 Q. B. fi.S3.
.5. By Siierijtr Pirforiimnce.
This court, when the relief given by the award
is of a nature proper to be specitically performed,
will decree tliat relief ; and that, too, although
the court cannot specitically perform some part
of the award, which is for the benefit of the
plaintiff, but which portion the plaintiff consents
to forego. Bell v. Miller, 9 Chy. 385.
Tlie plaintiff and defendant owned adjoining
lots, through which a stream flowed freely in its
course untd defendant threw logs and refuse
wood into it, wliich had tlie effect of damming
back the water on the plaintilF's land, where -
npon the plaintifl' instituted "proceedings at law,
which action, with all matters in difference
between the parties, was referred to arbitration,
when the ar))itrators decided that defendant
should remove all tlic timber across the creek,
ai\(-( paj' r>ne-half the costs of the action at law.
The defendant iiaviwg refoscd to obey the award,
the plaintiff filed a bill for the purpose of com-
pelling obedience thereto. The court, under the
circumstances, made the decree as asked, and
ordered the defendant to pay the costs of tho
suit. Ilodder v. Turvey, 20 Chy. 63.
IX. Co.STS.
1. Biijhttu Full Costs.
A\'licre an action is commenced in the King's
Bench, and arbitrators upon a reference jvward
damages under the jurisdiction of tho District
Court, the plaintiff if not deprived of costs.
Lumj v. Ifnll, Tay. 215.
Where a verdict was taken sul)ject to a refer-
ence, and the arbitrators awarded £10, reducing
only the price and not the items of the account
sued for, a suggestion to deprive the plaintiff of
costs, under the Court of Requests Act, was
refused, litratj'ord v. Sherwood, 5 O. S. 169.
Where a cause has been referred by nisi prius
order, an application for costs of special jury
stnick and called, must be to the judge by whom
the reference was made. Commercial Bank v.
Prinijle, 3 L. J. 28.— C. L. Chamb.— Draper.
All matters in difference in this cause, and in
a building agreement between plaintiff and de-
fendant were referred, costs of the cause and
reference to abide the event. The award after
disposing of the issues in plaintiff's favour,
assessed his damages on account of the non-per-
formance by defendant of tho promises alleged
in the declaration, and of the matters in dif-
ference on the building agreement, and also the
plaintiff's costs and charges, at .€52 IGs. 7d.
The costs of the reference and award were then
fixed by the award at £20. The costs of the
suit were afterwards taxed without notice to
defendant :— Held, that as no verdict had been
taken the plaintiff was entitled to full costs.
Jones v. Reid, 1 P. R. 247.— P. C— Burns.
Held, that tho words, "costs of the suit," as
used in an award, have no reference to any par-
:m
■i -m
\\
'i ,! i»
'■^\ hi.
pr-
i;
1
r
ii .
1 i
if
183
ARBITRATION AND AWARD.
M
ticular scale of taxation, and so cannot, per se,
be relied upon as entitling plaintiff to full costs
of suit in a case where the amount awarded is
within the jurisdiction of an inferior court.
Keep V. Hammond, 9 L. J. 157. — C. L. Chamb.
Draper.
Where the transactions amounted to about
$1,100 on one side, and about $800 on the other,
and defendant paid into court $176, and plaintiff
recovered $102.30 by the award : — Held, that
full costs should be allowed to the plaintiff.
Joiies V. Hfwson, 2 L. J. N. S. 107.— C. L.
Chamb. — A. Wilson.
Where a cause is referred, costs to abide the
event, the plaintiff is not entitled to full costs if
he is awarded anything, but to such costs only
as he could have claimed if he had recovered the
same amount. Watson v. Garrett, 3 P. R. 70.
— Chamb. —Richards.
Where a cause was referred, costs of the cause
to abide the event, and costs of the reference in
the discretion of the arbitrator, and £4 was
awarded to plaintiff, the taxing ofHcer refused
to tax only Division Court costs subsequent to
the award, and his decision was upheld. Fleur-
ynck V. Clifton, 3 P. R. 216. — Chamb. — Bums.
2. Under Rule of Court
WTiere a cause is referred by order of nisi
prius, and a sum awarded within the District
Courts— the court or a judge may srant an order
for full costs under the nmth rule of E. T. 11
Geo. IV. Elmore v. Caiman, 4 0. S. 321.
A cause having been referred by order at nisi
prius, and a sum awarded within the County
Court iurisdiction, the coUrt, on affidavit, granted
an order for full costs, under the 9th rule of
E. T. 11 Geo. IV. Morse v. Teelzel, 1 P. R. 375.
—P. C— Richards.
Where final judgment is obtained without a
trial a judge in chambers has power to make an
order for full costs. Quaere — Should the order
be ex parte ? Where a cause is decided by an
award, the cause is one proper for an application
of the kind. The order may be made unless it
appear that the cause was one in which the
plaintiff was bound to sue in an inferior court.
A plaintiff, in order to bring his cause within
the jurisdiction of an inferior tribunal, is not
bound to give credits. It is his privilege to do
80, but there is no legal obligation upon him to
do so. Geroux v. Yager, 8 L. J. 19.— C. P.
Two actions for false imprisonment were re-
ferred at the assizes, no verdict being taken,
costs to abide the event. In one the arbitrator
found £20, in the other £ 10. The plaintiff having
proceeded by attachment on the award : — Held,
that he was entitled to full costs without a
certificate. Such a case is not within the I55th
rule of court, for the plaintiff cannot be con-
sidered as proceeding upon the final judgment.
Cochrane v. Scott, Cochrane v. Cross, 3 P. R, 32.
— C. L. Chamb. — Burns. Moved against in full
Court of C. P., but rule dischargee!.
A cause was referred, before trial, by judge's
order, costs to abide the event, and the arbi-
trator awarded £9 38. 9d., the claim being origi-
nally of the jurisdiction of the County Court,
dan reduced by set-off. The plaintiff applied for
full costs, on affidavit shewing that he iuteniie!. U.j
c. 100, s. 2. Regina v. Patterson, 27 Q. B, I
The indictment charged that defendant "
receive, conceal, or assist " one W., a dcsn]
from the navy : — Semble, not sufficiently ccni
and precise. lb.
2. Enticinij Soldiers to Desert.
Held, that a warrant of commitment, innla
it was charged that the prisoner on tlici
June, 1864, "and on divers other clays i
times," at the city of Kingston, did unlawiJ
attempt to persuade on James Hewitt, a soil
in Her Majesty's service, to desert, was I
for it was impossible to say upon reading J
warrant how many offences he had commia
or how the punishment was awarded. h\
McOinnes, 1 L. J. N. S. 15.— C. L Chamlf
J. Wilson.
ARREST.
I. Manner of Arrest and nv wiioji]
1. What amounts to an Arrest, 190.
2. Power of Private IndividmUoh
190.
3. By Constable — See Constable.
4. By S^grif—See Sherifi'.
II. In what cases Arrest can nr. m
1. Of Foreigners, 191.
2. Other Cases, \{
% For Contempt c
—See Attach
4. Ill Bankruptci
Bankruptc
5. Writ of Arrest
BAND AND V
6. On Ca. Re.—S
DENDUM.
7. On Ca. Sa.~S,
CIENDUM.
8. On Xe Exeat — ,9
9. Extradition—See
10. Commitment — s
Peace.
Bail on— ,9se Bail-
Affidavit TO hold
1. How Intituled, 19
2. Form and Con/e
Vases.
(a) On BilU of
missory ^
(b) On Bonds am
194.
(o) C Comm
(d) . Several C
(e) In Other Acti,
1 Miscellaneous requi
(a) Statement that
leave, 196.
(b) Other Cases, ]
4. Jural and Commiisi
WfiiT OF Capias, 198.
Al'l'LICATION for Dis(
■WIDE ArrE-ST.
1. Oeneral Principle.^, S
-• for Defects in Affidc
I For other Irregulari
4. Waiver of Irregularh
5. (>n Afulavil denvinti
204.
•i. Wliere one of Several
charged, 205.
". Practice in Moving, a
8. Other Cases, 200.
9. Uiiiler Attarhnienf—,'
OF THE Person.
[0, Un Haheas Corpns—S
PU.S.
pcoND Arrest and A
Writs.
11. After Discharge or /
I aside, 208.'
12. Ottier Cases, 209.
|C0ST3 UNDER C. L. p. A
. ^i^''"''"'^ on Applicadoi
J. Other Cases, 210.
piviLEOE from Arrest.
■Vimbers of Parliament
MBNT.
S* '^v-
I89
ARREST.
190
2. Other Cases, 191.
3. For Contempt or Non-payment of Costs
—See Attachment of the Person.
4. In Bankruptcy and Insolvency — See
Bankkuptoy and Insolvency.
5. Wiit of Arrest for Alimony — See Hus-
band AND Wife.
6. On Ca. Re.See Capias ad Respon-
dendum.
;. 0)1 Ca. Sa.—See Capias ad Satisfa-
ciendum.
8. On Ne Exeat— See Ne Exeat.
9. Erlradition—Sve Extradition.
10. Commitment — See Justice of the
Peace.
Bail oy—See Bail— Criminal Law.
Affidavit to hold to Bail.
1. How Intituled, 192.
2. Form and Contentu of in Particular
Cases.
(a) On Bilh of Exchange and Pro-
missory Azotes, 193.
(b) On Bonds and Sealed Instruments,
194.
(c) C Common Counts, 194.
(d) . Several Claims, 195.
(e) In Other Actions, 196.
3. JtFtseellaneous requisites of. *
(a) Statement that Defendant about to
leave, 196.
(b) Other Cases, 197.
4. Jurat and Commissioner, 19S.
i Writ OF Capias, 198.
j Al'l'I.IOATION FOR DiSCHARfiF, 01! TO SET
ASIDE Arrest.
1. General Principles, 200.
2. For Defects in Affidavits, 201.
3. For other Irregidarities, 202.
4. Waiver of Irregularities, 203.
5. (In Affidavit denyint/ intention to Leave,
204.
(i. Where one of Several Defendants is Dis-
charged, 205.
Practice in Moving, 205.
! 8. Other Cases, 200.
Id. Under Atteu-hment—See Attachment
OF THE Person.
^0, U« Habeas Corpus— See Habeas Cor-
pus.
iSKwsD Arrest and Arrest on Alias
Writs.
\\. After Disrhanie or First Arrest set
aside, 208.'
12. (Jtlur Cases, 209.
JCUSTS UNDER C. L. P. ACT, s. 322.
11. Affidavits on Applications for, 210'.
Other Cases, 210.
|Privileoe from Arrest, 212.
Members of Parliament — See Parlia-
ment.
X. Miscellaneous Case.s, 212.
XI. Actions for wrongful Commitment —
See Justice of the Peace.
XII. Action for Malicious Arrest — See
Malicious Arrest.
XIII. Actions for Assault and False Impris-
onment— .SVe Constable— Justice of
THE Peace — Trespass.
XIV. Action for Escape— .S"*'*' Constable-
Sheriff.
I. Manner of Arrest, and by whom.
1. What amounts to an Arrest.
In an action for malicious arrest, the arrest is
not proved by shewing that the bailitl to whom
the warrant was directed went to the plaintiff's
house and told him at the door that lie had a
writ against him, but did not enter the house,
nor touch him, and afterwards left him on hia
promise to put in bail the next day, which he
did. Perrin v. Joyce, G 0. S. 300.
The deputy sheriff, having a ca sa. to arrest
a party, went to his house with the writ in his
possession for that purpose ; he told him of the
process, and being assured 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 coming with him. Afterwards the
sheriff went again to the debtor's house and told
him, without lading his hands on him, that he
must come to his (the sheriff's) house, which he
did, and remained there till discharged, but not
under actual constraint : — Held, that under
these facts there had been no legal arrest of the
debtor on the first visit of the sheriff : that the
merely insisting on the debtor going to the
sheriff's house on the second visit, did not of
itself constitute an arrest ; but that the debtor,
in having gone to the sheriff's house as desired,
and having remained there till discharged,
though without constraint, had been duly
••'•wsted. Mcintosh v. Demeraij, 5 Q. B. 343.
A bailable capias having issued, the deputy
sheriff went to defendant and asked him to find
bail. They both then went in search of bail,
and a bail bond was executed: — Held, an
arrest. Morse v. T.rl-jl, I P. R. 369.— P. C —
Richards,
2. Power of Private Individual to Arrest.
A man assaulted l)y a person disturbing the
peace in a public street, may arrest the offender
and take him to a peace otlicer, who need not be
the nearest justice. Forrester v. Clark, 3 Q.
B. 151.
A private individual cannot arrest on suspicion
of felony ; he must sliew a felony committed.
Ashley v. Dundas, 5 O. S. 749.
When a private person takes upon himself to
arrest without a warrant for a supposed offence,
he must be prepared t'j prove, and affirm it une-
quivocally in nis plea, that a ieiony has been
committed ; strong suspicions of it will not do.
McKenzie v. Gibson, 8 Q. B. 100.
1 1
i;
'■ Pt^
m\
^m
:.m
T
191
ARREST.
;i [ i
?!'
ti "
:i! ^ r
II, In what oases Arrest can be made.
1. Foreigners.
Where both plaiiitiiT and tlefeiulaiit wore
inhabitants of a foreign country, and had come
together into this province to remain only a few
liours, and during their stay here the plaintiff
made the usual afhdavit and arrested the defend-
ant, tlie arrest was held to be regular. A'"//-
nor V. JIamilton, M. T. 2 Vic.
Semble, that it is contrary to the policy of our
laws of arrest to permit one foreigner to follow
another to this country, and arrest him for a
debt contracted abroad. Frear v. FcniiiMm, '2
C. L. Chamb. 144.— Bums.
Held, that the affidavits in this case did not
sufficiently shew the plaintiff and defendant
to be foreigners, and therefore that the arrest
could not be objected to on that ground.
Romberg v. Steenhock, 1 P. K. 200.— C. L.
Chamb. — Bums.
The plaintiff, a merchant living in Toronto,
arrested defendant, lately from England, on a
bill accepted by him there. The arrest was
moved against, on the ground that defendant
was Lsre for a temporary purpose only, and on
business ; but the plaintifif gv/a reason for be-
lieving that he had absconded from England to
avoid proceedings there on this same bill, and
the judge under these circumstances refused to
interfere. Brett v. Smith, 1 P. R. .S09.— C. L.
Chamb. — Richards.
Defendant applied to be discharged from arrest
for a debt contracted abroad, on affidavit that
both plaintiff and he were foreigners, that he
had come to this province very lately, and had
never any residence or home here ; but it was not
shewn under what circumstances or for what
purpose he came, whether as a transient visitor
or intending to become a resident, and on this
ground the application was refused. Blunwnthal
V. Solomon, 2 P. R. 51. — Chamb. — Hagarty ;
3 L. J. 12.
The mere fact that both plaintiff and defend-
ant are foreigners does not of itself warrant
setting aside an arrest. Palmer v. Rodgers, 6 L.
J. 188.— C. L. Chamb.— Richards.
See Terry v. Comstod; G L. J. 235.
2. Other Cages.
A plaintiff cannot arrest for purchase money
paid for an estate conveyed to him by deed,
upon the ground that the defendant, the vendor,
was not lawfully seized ; he must resort to his
covenant. M'Lean v Hall, Tay. 491.
An order to arrest was refused in actions for
malicious arrest and libel. O'Connor v. Anon.
and Darcus v. Hall, T. T. 2 & 3 Vict.
Where a judge's order was necessary to hold
to bail, an arrest could not be made in a district
court. Ferris V. Dyer, 5 0. S. 6 ; Smith v. Jarvis,
H. T. 3 Vict.
7 Vict. c. 31, abolishing inlprisonment in exe-
cution for debt, applied to cases where judgment
was obtained before it passed. Bank of British
North America v. Clarke, 1 Q. B. 1. Upheld in
Bell V. Ley, 1 Q. B. 9.
A defendant, committed to prison on racsm
process, and charged in execution in the cai* I
without a now affidavit, before 7 Vict, c, 31 ;_
Held, not entitled to his discharge. Haniiiui
v. Mingay, I Q. IJ. 22. See C. S. U. C. c U
s. 12. '*'
A summons to set aside a ca. sa. on the grouni
that defendant had been arrested for a sun
under £10, exclusive of costs, was discharged oj
the facts stated in this case. Baker v. M,/;
1 C. L. Chamb. 73. — Macaulay.
Under 12 Vict. c. 0.3, a bailable capias coulil
not issue in a suit commenced by summoiiil
Kelly v. Kelly, 1 (!. L. Chamb. 281.-BurBi|
After that Act commissioners could not mmi
bailable process under 2 Geo. IV. c. | s gl
Mr flit yr,' v. lIitt.-ion, S il B. 560. ' '
10 & 11 Vict,
persons in execution
H\
c, 31, s. 3, applying only J
tion for debt : — Held, not i,,
uot dl
include a defendant in custody on a ca. sa. iii
an action for seduction. Merrall v. FmmwX
1 P. R. 230.— C. L. Chamb.— Draper.
The 8 Vict. c. 48, except s. 44, was contiaBei|
in force by 18 Vict, c, 85, till the 1st of JulJ
1856, and no longer. The C. L. P. Act, whiiil
came into force on the 21st of August, 18os|
enacted that from the time when it should t
effect, the 44th section of 8 Vict. c. 48, si
be repealed : — Held, that this 44th section coil
not be considered as continued by the C. L P
Act, though, no doubt, it was so intended, a
therefore no arrest could take place under i|
after the 1st July. Barrow v. Capreol, 2 P. R 9
C. L. Chamb. — Burns.
Semble, a person in custody on a crini
charge, may be detained in a civil suit. Pak
V. Rogers, G I^. J. 188.— C. L. Chamb.— Richarf
Arrest on notes secured by iuortg.u'e asci
lateral — action fi i* malicious an-est. Illuhki
Patterson, 15 Q. B. 180.
IV. Affidavit to hold to Bah.,
1. How Intituled.
C. c. 24, 3. C]
in the District Ci/, 1
M defendant is indebte
key on a bill of excliangt
Inient of £560, not sayini
■d, sufficient. Paioson v.
. L Chamb. — Draper.
le affidavit stated the
[daynow past," and preg
J nonpayment; and thei
\n\ sums for which it w
Ml, concluded,-" and th
1 of money are now just:
iforesai.! :"-Held, tliat
m that the bill was still
[efendant was stated to L
►nt of the bill, and in £5
ley aforesaid, "forinteres
Iprmcipd money and inf
; that the claim for in
Py stated. lb.
[issuicient to describe
13
193
ARREST.
194
LtcrwaiiU issued from the C. P., tli(
liit iwi'lo witli C(jsts. Sirift v. ./-,».■.■.,
I C' I'- Cliiunli. -KK^Iiarils.
P., the arrest wiw
(i L. ,1. (i:».
r If litviiie 111 mi' >->■"■ " ...""« "" •"
. arti.liivit lit the time of auing outtlie process.
lZ, V. K'n^'l, :» i'- !'• llO.-Chaiub.~
A tfcliiiic:il objeetioii to the form of the atli-
A vit imitt lie made before the time for puttiug
1 ■ il fxiiiren. An objection tluit the atfidavit
],u,t intituled in any court, is such an objection.
'"/tl V. /•"tii,in- v. i?«.>f/(//,
t'.n-fii ''onli'ntf of ill I'lirlinihir Cuiix.
ml On Billf of E-irlniDiji' or /^roiiiixiiiir!/ Noli'.'t.
[Must state it to be "payable." SmlHi v. Siilli-
Tay. 4!'3; Andnixx v. h'ilflih; l)ra. (J.
hiust state the default of the maker or aecep-
L Itosx V. Jialfoin; 5 O. S. 083.
Ililuat show the amount for which the note was
kiwii. Xoi-lon V. Latham, M. T. 3 Vict.
iThat the defendant was indebted in a named
1 due on a promissory note, diii' Ixfoff the
smncmii'iit of tli'm Kiiit, the attidavit liaving
L made several days before the writ issued,
held insutticient*, as being equivocal and
icertaiu. Cladv v. Cltirki; 1 Q. B. 395.
In affidavit for several different notes need
istaie the aggreg,^te sum, but the amount of
|h note must be mentioned. The dates of the
tes should he set out in words, but figm-ea will
I make the affidavit defective, lioix v. Ifurd,
,R. 158. P. C. -Burns.
ill affidavit by the endorsee of a note must
' that it was endorsed to the plaintiff, and
h'hom. ^'A(.« V Bahii, 1 P. H. 274 -P. C —
iiper.
Tiat defendant is indebted in £560 of sterling
liey on a bill of exchange drawn, &c., for the
nieiit of £560, not saying of what money : —
id, sufficient. Paioson v. Ihdl, 1 P. R. 294.
,L Chamb.— Draper.
^lie affidavit stated the bill to be "payable
[day now past," and presentment on the day
J non-payment ; and then, after stating the
Iral sums for which it was intended to hold
il, concluded,— "and that the said several
!of money are now justly due and payable
(foresaid :"— Held, that it sufficiently ap-
e.
In an action by husband and wife fur a v.Hul
slander of the latter, not actionable withuui I
special damage, the affidavit stated only tlu
persons not named had in eonsei|uen.iiiiiii.e|
and regret that an arrest should havu IjagJ
ordered on such statements, but set it a.sidt; i
the ground of irregularity only AUimH\\
K,-n^it,'AV. R. 110.- Chand).- Haijarty.
3. MUci'lhineoHH r^'ijittiiltfM of.
(a) Statement thiit d'/emldnt ahmit to Inin.
" That the plaintiff had reason to beliew, L
instead of "is apprehensive tliat the tlffembtl
was about to depart this province witiiuiit \m\
ing,"&c. :— Held, insufficient. Chnnic v. ■S'/m».l
Tay. 449.
Where an application is made for an onlor tJ
arrest, the affidavit must contain the (mlinanl
conclusion, that the deponent is apprchtiiisivc(i|
defendant's departure fi-om this proviuue. 11'/
wf V. Bloor, E. T. 2 Vict.
" That defendant will le.ive the province (
Canada" : — Held, sufficient. Bron-n v. Pun-
Q. B. 98.— P. C— Jones.
Held, that the affidavit under C. S. U. C, J
24, s. 5, must shew facts and circumstance til
satisfy the judge that there is good ami pioljalil
cause for believing that the debtor, unless furti-l
with apprehended, is about to quit, &c. 7>,»;f
V. Eaaterbrook, 10 L. .J. 240.— C. L. Chaml),-
A. Wilson.
Held, that an affidavit stating depoiiciiiil
belief that the debtor, unless held to bail, wiM
quit Canada, not saying when, or assiming atl
special reason for forthwith apprehending liia|
was insufficient. ll>.
Held, that the facts and circumstances
before the county judge in this case, to satisSJ
him that the debtor had at any time an inttif
tion to quit Canada, were insufficient. ///.
On an application to review the decision ii\\
county judge, it was held that defendant dibI
be discharged ; that, the denial of the debt aloi
would not be sufficient, though the facts i
circumstances relating to the claim niiglil
important to consider as affecting the pioltaljilit
of his absconding ; but that an apprehinsido \
his leaving at some future period could not «
rant the arrest, for the judge must bo satisi
that he is about to leave unless fortluvitii appo
hended, that is, to leave forthwith. lh>rt;>\
Ftoicer, 3 P. R. 62.— Chamb.— Burna.
Semble, the judge to whom an apijlieatioij
made for an order to arrest has only tu be fill
fied of the existence of a cause of action, J
and an intention on the part of defendutl
abscond with intent, &c. Darner i. IkAj'
P. R. 356.— Chamb.— Gwyime.
See Part VI. 5, p. 204.
t statement of the sum
fvitiatc; but the amoui
11 te taken was orderei
Itrue sum in currency, a
Pnount given in the affid,
m V. ffcd/, 1 p. II
litdefemlantisabouttoL
•fraud the plaintiffs of "
', hougi, the fonn give
«f said debt." /ft
Hil state the name of
^7'f't.«l'ew facts su
llnfthejudgcthisisa
& r?"'?."^ the sta,
"'"• " b. J. 14.— C. L. C
197
ARREST.
198
(b) Other Ciuen.
\ii iirreat was sot aside, whure rlufendont,
those name was "Patrick," was called "Peter"
.„ . :i — I — -.L BoiAford V. Stfinnrf,
itbe affidavit and writ.
f. 11 Geo. IV.
[ Deponent's name, must bo set f^
L lengtli. Rkhnrdmii v. XorHin
Anil liis Christian names muH
II Wi-.iliiivr V. Hiiniliiiiii, T. T,
forth in words
■opr, Tay. 3.TI.
must 1)6 given in
3&4 Vict.-
k'exatiotift or
nil.
\ ('. -Macanlay.
The conclnsion negativing any v
jiaiicious motive reqnircd l>y 2 (Jeo. (\'. c. 1,
fs i.s not nece.s8ary where a jndgo's order to
Colli to bail is obtained. MrLnrlilan v. Winr-
(„„, 5 0. S. 3.S.3.
•Vnd such conclusion is dispensed with by
ivict. c. 48, s. 44. Lci v. MrClun; 3 Q. B. 330.
It is irrogidar to make an affidavit of d^bt, or
jjuc a writ, on Sunday ; and in an affidavit of
|el)t the proper place of residence of the depo-
«nt must be stated. Halt v. /irimh, T. T. 3 k
fvict.
I It is no ground for aettinj' aside an arrest that
ivortl "malicious" is spelt with a "t" instead
in the affidavit of debt. Oardetu'r v.
H. T. 4 Vict. —Jones.
of 7
Vict.
31.
lormon,
Construction and eflfect
w \: Schofeld, 1 Q. B. J.
The affidavit to arrest in a special case reeiuir-
the sanction of a judge to the issuing of the
it, need not follow so strictly the form pre-
ibed by the act, as where the creditor may
out the capias as of right. Bardoii v. Cnw-
I Tay. 486; Neven v. Butcharf, 6 Q. B. 19(5.
n afliilavit that the plaintiff "had reason to
icvc," not "good reason :" — Held bad, and
ist set aside. Meyers v. Camphdl, I C. L.
,b. 31.— Macaulay.
Qiisre, whether it must shew that the dej^jo-
^t is the attorney or agent of the plaintiff.
hjxrlain v. Wood. 1 P. R. 195. — Chamb.
Burns.
Ihe affidavit statetl the amount in sterling,
to wit, the sum of ,£704 6s. 7d., or
jeabouts, of lawful money of Canada :— Held,
I sufficiently precise and positive ; but it is
pcient to state a debt due to a plaintiff in
pand in sterling money only, and the insuffi-
; statement of the sum in currency would
[vitiate; but the amount for which bail
lid lie taken was ordered to be reduced to
[true sum in currency, as it appeared that
nount given in the affidavit was excessive.
m V. HidI, 1 P. K. 294.— Chamb.—
icr.
kat defendant is about to leave Upper Canada
Ifraud the plaintiffs of " their said debt," is
tlinugh the form given by the statute
"(/ic said debt." Ih.
Buld state the name of the pai-ties infor-
, but if it shew facts sufficient to satisfy
bind nf the judge, this is sufficient ; it need
ppy the words of the statute. Mclnnea v.
|li«,6 L. J. 14.— C. L. Chamb.— Hagarty.
I aindavit shewing sufficient to satisfy the
I that the defenda'\t, unless apprehended,
'hvitb about to leave, will be sufficient,
though it is only sworn that defendant is about
to leave Upper Canada. Sinf't v. doner:, ($ L. J,
03— C. L. Chamb. -Hichards.
An affidavit made by tlio aa.signoo of the
plaintiff's estate, that the dufindant is indebted
to the estate and di^pDncnt a^ assignee thereof,
&e., and that ho ia about to leave, &c., "to
defraud the deponent, as .snoh assignee as afore-
said, of the saiil debt :" Held sufficient. Baw-
Innj V. Sidtiiiinii, 2 P. K. 51.— Chamb. —
Hagarty.
It is not necessary, iiiiilcr iW. I12tli rule of
T. T. 20 Viet., tliat ;'in allidavit to hcdd to hail
should be divided into paragrajihs and numbered.
Ellcrl>i/v. )l'(r/^,l«, 2 P. K. 1 17. -P. C.— Robin-
son.
4. Jitrid mill. (JiJiiiii\i.i4(jiii r.
Order to hoM to bail granted on aflirmation
ma|i J
was contracted, nor the conduct of tlin di iij,|
ant, couhl bo tried upon affidavits for the twi
pose of permitting an arrest, if thoalliduitJ
debt and intention to leave the country vA
a positive one. Freur v. Fenjunvn, 'J i' j
Chamb. 144. —Burns.
Where defendant, being a married wunml
and known to bo so by the plaintiff, waMnrrcstdl
on a ca. re., both writ and arrest were sctiuiij
with costs. Fokif V. Whili; 2 C. L. Cliainh. Jl|
— Macaulay.
When the writ of ea. re. i.s only a^^'.iinstty
wife, and is irregular against her, tli>j hiiiKui
cannot bo compelled to appear. ///.
Quwre, when one judge on astatenii'iitdthJ
has ordered a ca. sa. to issue, can anotlitr juilJ
taking a different view of the same fnct.s, intd
fere without any now matter being shewn? '..
question whether any debt is due or not willj
entertained on an application to diseharjjcd
order for a ca. sa., but unless a very dear c
is made out, the court or judge will not ints
fore. Mc/nnrtt v. Mackltn, (i L. .1, II. (.
Chamb. — Hagarty.
There must always be great relmtancc |ilicatif>n t<> set a.sidc an itrrc.^t iiil
22 Vict. c. 0(i :— Semble, thfvttliec.xistt'iiaiil^
cause of action may be enquired into, Imt ll
the absence of it must lie very clearly slieni
warrant interference. DcImIi' v. JJniriiinIji
11. 105.— C. L. Chamb.— Draper.
There is a broad distinction, on nii ajiiilitri
to sot aside an order for an arrest, ln'tviml
order based on affidavits delieicnt in statntf
requirements, and those containing .stakii
from which different conclusions iiiiylit fairly
drawn by different judges. In a casu cdiniii^'ii
the latter head, a judge in chaiiil)erH (IccIidJ
set aside an order for arrest by a ('(luiityll
judge of competent authority, pri'furriiijl
leave it to the full court. Nor yvmU licii
fere, the evidence being conllietiii;.', ™i
ground that it was not uie intention of i
)l
jit to leave the con
yp n. i;m. -chsmb.
But an the order was
|l«n thftt warranted
Jdavit, tlie amount i
i(j(l t(i iinil was direct
orrect aiim, without sc
A jmlun of a Supcrioi
Irbcre tnu County Co
_ liicntion. A/nlloi/
lianili. — Hiuliards.
A jiiil^e in chambei
liilc Ml order to arro
Itarinx luitli parties, dju
y virtue of bis general
ire, nmy »ct aside pn
kc onU'r, for irregulai
rBliid Y. Wigit; a ]
iryniip.
I The order itself oin In
dirt, Imt after arrest dt
discli.irgo on the grou
debt, or otherwise n
idgein chaml>ers, orto t
in ({ranted the order.
(t an ftippcal from the on
|tt8 must lie shewn to y\i
prisoner, unless it I:
' manifest and vital d.
Jlterial. /Ii.
lEither of these orders
Jvaricd liy the court, wh
'ginal order to hold to
pellato jurisdiction on t
ich was before the ji
kiitory jurisdiction to re;
■ntion to discharge the j
|thi», the court hiis also
iwith a judge in chan
«rt judge who granted tl
Irgc the prisoner ujK)n
jlalfidavitsof lioth partii
BiiCTc, whether, on shew
Ion to set aside an arre
leived to support the f)rii
I cause of action. UU,,,
Ic I', m.
-■ Fur Difods la
le eoiirt will not set f
Jilanty in the affidavit.
escajied. Ktr/n- v. M,n
a motion to set aside ai
}m from arrest, it apot
It to h(dd to bail dcscri
Jencc as at ( 'anandaiLrua t
Ig omitted) :Hel,l,''d,.;e
"V. Kend, Tay 4|;j.
'liercan,i|Hdavitto hold
e(efcnd,int Wiis in the I
left here ready i„ case he
•iourt set the arrest aside,
lb/.
lenadefendant jnits in
>'lablewnt, he is i,„t »
loLjeerngtoanyirregula,
*■ H'lljour, 5 O. .S. (,'83.
Jlere the objection taken
I to bad was new in thi
ARREST.
202
b»n
J to leave the country. M'Oiijfin v. CUni',
up R. i:W -C'hamb. - Hogarty.
Rut as tho onltT waH grunted for a mm (greater
that warrantcil l>y thn allruatimi in the
i(l«vit, tin' amount for which Mfffiulant wan
.1,1 to bail wan cUrectud to Im( reUnccil to the
Brrect «iini, without setting anido the order, /h.
A iu'tg*' f f * 'Superior Court will not interfern
there tno County (Jourt judge has exircined
(ilis'Ti'''""- .'/"'% V. Shan; 5 I*. U. '260.-
i„ilj(o in chamtiors h.is no power to net
liiie ftu order to arrest, though ho nuvy, on
larinx '"'"' parties, disehargo tlie prisoner, or,
, virtue of hiH general jurindietion over prneo-
■rc nmv '"'t aside proceedings subscipient to
k. oriior, for irregularity. JJami r v. /iiinln/
TiJ/rt'-il V. in;//'', 5 P. 11. aSti. - ChamlL-
iwyniiP-
lThe order itself can lie rescindeil only by the
Rirt, liiit after arrest defendant may apply for
I (li'scharge on the ground f>f non-oxistenco of
debt, or otherwise nnon the merits, to any
dgD ill ehamlwrs, or to the (.'ounty Court judjje
kn ((raiiteil the order. Such an application is
gt an appeal from the order to arrest, and now
ti» must lie shown to warrant the discharge of
prisoner, unless it bo granted on account
iiiaiiifest and vital defects in i( original
itcrial. /''.
lEitlier of these orders may be discharged
Vvaricd by the court, which jmssesses over the
nnal order to hold to bivil : 1. A general
dilate jurisdiction on the identical material
joh was before the jnilgc ; 2. An express
Itutory jurisdiction to rescind the order, upon
Bntiou to discharge the prisoner. In addition
Ithii*, tlie court has also co-ordinate jurisdic-
awitii a judge in chambers, or the (!ounty
Brt jmlgc who granted the first order, to dis-
irm the prisoner upon merits appearing in
latfiilavits of both parties. //(.
ttuarc, whether, on shewing cause to an appli-
|on to Bct aside an arrest, ailldavits can be
(ived to sHjiport the original allidavits as to
I cause of action. Diamond v. Caiimr'njht,
It. P. 4!)l.
2. /''()/• DiJ'vds ill Affiihmtx.
lie court will not set aside an arrest for
pilarity in the afHdavit, after the j)risoncr
fescaiMiil. KivJ'it' v. Mirrill, Tay. 490.
1 a motion to set aside an order to discharge
toner from arrest, it ajipeared that the atli-
It to hold to bail ilescribed the deponent's
pence as at Canandaigua, State of New (Yoi'k
; omitted) : —Held, description insufKcient.
!v. W.W, Tay413.
fhcrc an allidavit to hold to bail was made
(Icfcmlant was in the United States, and
llctt here ready in case he should come over,
lourt set the arrest aside. tV^tHw v. Uitchiv,
1 111".
kn a (lefeiidant puts in special bail to an
Ibailable writ, he is not tliercby prevented
J objecting to any irregularity in the arrest.
(v. Mfuur, 5 {). S. 683.
lere the objection taken to an atlidavit to
■ to bail waa new in this court, and the
plaintiti' followed a form ^ven in Tidd'a appon-
dix, the arrest was set aside without costs, and
on condition that no notion should bo broucht.
//..
After removal of the prooeedingo from an
inferior court, the writ and arrest were set
aside for a defect in the atlidavit of debt, though
a similar motion was |)ending in the court
below. EmjIiKh v. Evnrll, I Q. W ;W«. 1'. C.
— McLean.
An arrest was made on the iJiid November,
s^iecial bail put in on the 9th November, a ver
diet reniltred sometime iH^fftro the I'Jth Decem-
ber, a render by the bail on the Tith January, an
application to the county judge on the 2nd
•lanuary, and the discharge of tnat application
on the 5th January, and tne final judgment given
sometime in the same month. An application,
upon a habeas corpus issued on the 8tn March,
to discharge defendant because the aflidavits
upon which the judge made his order to arrest
were not sufKcient in law, was not entertained,
as it might have Ijeen if the aflidavits had been
a nullity. Uiiiicimnii v, Aniixlroii'i, 2 Fi. J. N.
S, l(i,'). C. ],. Chamb. A Wilson.
Held, following Ellerby r. Walton, 2 I'. U.
147, not a valid (il)jcction to an order to hold to
bail, that it was granted upon aflidavits not
intituled in any court. Mollot/ v. HIkiw, 5 P. U. 2r)0.
- ( 'hamb. - Richards.
Applications having )>cen made to set aside two
orders for arrest, witu the writs and subscipicnt
proceedings, on the ground that the allidavit to
liolil to bail in one ease was untrue and insuHi-
cieiit, and in the other case was not intituled in
any court, and was iiisutticient in sulistance :
J^eld, that a judge in chambers has no power
to .set aside an order to arrest, though he may
on hearing both parties discharge the prisoner ;
or, by virtue of his general jurisdiction over
procedure, may sot asitle proceedings subsequent
to the order for irregularity in this respect.
Datuiv v. liiislti/ — lituvk v. H'tijlv, 5 P. K. 35(5.
—Chamb. — Owynnc.
3. Fuf other Irri'ijiilii.ritir.i.
Wliere the altiilavit stated that two person.^,
trailing nnder the name of "T. & Co." were
indebted, and process issued against one only,
the other being within the jurisdiction, the
arrest was set aside, ('hltholm v. Want, Dra,
490.
It was held no objection to an arrest on a ca.
sa. that several terms had elapsed after the re-
turn of the execution against goods l)efore the
ca. sa. issued, tlli/iin v. Didiloj', 4 O. 8. 111.
An informality in the wjvrrant of the bailiff
is not ground to set the arrest lunler it aside,
esiiecially where the writ itself is not produced.
//H.WI/ v. Liid; E. T. 2 Vict.
Where an arrest is made nixm a judge's order,
and no sum is specified in the aihdavit, the
2 (ieo. IV. e. 1, s. 8, as to indorsements on the
writ, does not apply. Sliyh v. Cumptx'U, 4
Q. B. 255.
Where the warrant to arrest is addressed to
two bailiffs, aa if jointly, one may nevertheless
arrest. Hetherington v. Whclan, 1 C. L. Chamb.
153.— Robinson.
im
:l
'm
If
; tV
^U(.
UOiJ
AKl'KHT.
Kl.'i
lii i'
im
VVIiuro (li'tciiiliiiil. wim urrcHltid mi it writ
isNiuil ami timtotl on tin' .Srd of .Intniiiiv, IH5'J,
mill (lii'ct'tcil ti> tlic lilicnlV iif Mil' I'liiti-il ('inm-
tirH III' Wi'litwnrlli iiml llnlton Mclil, llliii
RJIiri" till' liil. Ill" .tiiniliirv, IS.VJ, tlirrc wim iin
siicll dllii'iM' ; mill I 111' iiiickI Uiun.i'l. iiiiili- « illi
i'iibIk ; lli'lil, lliat (111' writ. iiii>{lll. I>i' iitiuiiili'il,
lull, llii> i'ii|iv mil. I'lii' jmlH'' ili'i'li"'''! I'lMiiiin-
fiiiiii (.11 Mi'irMt, oil (111- .■iiiirmlcil «iit. 1,1/1111111 V.
Hnlliroii. ',: {'. I,, niiiiiili. lOS. |)r,i|ii'r.
A \v,\i Tfiiil. til iiliiTilV til I'imiiiiil. II piU'l.y i^' iml'
in'i'^',iii.'ir, tliiiii^;li nil ri'liiiii il.'^y i>^ iiii'iitiiiiii:il in
it, I'll III i.-<'> \. /tn iiiiiii), I ( 'liy. I!(T.
An iirrrnt. «ill mil In' w'l .'i;iiili' Im'i'.himi' Ihr
ililTi'lion 1(1 (jiiii' li.'ill Im I'lir li" ilolit w;lH p.iiil, tiiiil till' rule Wlis rcl'liscil :
lli'liI, tli.'it. Ill' riMilil nnl iiKi'rw.iiiU niiivc lor ii
ilol'ci't, in Un> adiilavit 111' ilolit. Siii'/li v. /I'n.w,
•r. T. ;« ,^ ■» Vii't. MiKiuilay.
All lu'limi lor in.'ilii'iouM hii'i'nI Ih not ;\ w.-iImt
ol' I'lijoi'tioiiM (o till' iitliilavit ii|iiiii wliii'li tlu>
iiiTi'Ht, was lumK'. /\nr.,w V, II, iH. I T. I!. •!HI.
( 'liiunii. nrii|ii I'.
Tlio rtlliiliuil, connilii'il « illi 'J (iro. I\'.,i'. I,
s. S, oMH'iit, ill iiiiiittini; tin- avi-niu'iid (liil, tin-
wiit wan not. .Hiu'il oiil rrnin any vexation.'* or
inalii'ioii!' iiiolivi' ; ami ili'l'i-mlant liavinu; put in
xpocial li.iil : llolil, (li.il lliis ili't'ii't wa-* w.iivoil,
Isitrnuc V. I'li/ir-- III,
I', n. '^\ ('Ii;iiiil.,
HuniN.
W'lu'i'i' a ili't'cmlanl put* in .iiicii;!! Iiail to an
ali.i'^ liailaUii> writ, In- may nlill oliji'i't to an
in't'niil.irilv ill tlu' arn-st, l'iii< v. Ilali'irir, M.
I', -J Viet.'
Putting in fipcuial liiil alter an applieation to
Hot asiile tlio arrest is a waiver. Ii'iic< u v. Car-
)ii,ui, ;< I,. .I.'JOI. (.'. I,. Cli.iinli. Ilraper.
(jlu.-'re, wliether ilelenilant arre.steil on a ea.
sa. having given liail (o the liniit.f is not pro-
eluik'il from a formal olijeetion to the alliilavit,
Rueh as the want of ilepouent'a aildition. L'lriini
V. lofkhin-l, 3 Q. n. •2iS.
.An nmlertaUing to " eaiise spinial hail in this
aetion to he put in for the ilefemlant in li'e
I'oiirse of law," is not a waiver of any ohjeetion
lo the alliilavit, (i.'n^n v. linlii/, I 1'. IJ. '2~\.
W (". D-aper.
Put ting in sjieeial liail.'.fter having given ahoml
to the sheritl": lleM, not to ]ireeluile (lefemlant
from moving to reseiiiil tlui onler for liis arrodt.
/foKvc.f v. ' riiiiiri; ;i P. K, (!•-». (.'hauih.
Ihirn.s.
l>oes not w.iive olijeetioiis not tuehnieal. .1/r'-
<;iqliii V. Cliiir, i P. IE. 1;M. Chamh.
Ilagarly.
The rule leipiiriiig promjit a\i]ilieation for
irregularity , !.•< not .strietly applieil in the ease of
prisoners, liiiiri/ v. h'l■(i^■^, 2 i.}. K .'t83. P.C
llagerniau.
ncfcmlant wa.s arrested on a ea. six. It
appeareil that the olliecr who made the arrest
had no warrant from the ehcrill", tliuugh he
liHHUred the plivintill' that he liud autliuritv t.
aet. Defendant hriiualit troepaRH agaiiuit i>
plaintiH, and aMueiuied damagi.'ii. Aflir .i,
aM»en!iiiieut., after gi\ing Imil to the limits, nnii
nearly two inontlri after the arrenl, he ii|i|i|||.i|
to lie ilineharged, and to have the li.ijj h^.l
I'Mlieilleil. 'I'Ih' eoiirt refiiHi'd the applii,.||i„
Khlu/ V. l'iiil/>. I(M,». H. .•|Im.
Held, tli.'it ilefeiid.'int had mil, liy pii>|iM,i,|
fur Mi'tlleliieiit, ilie , waived his right In i\ ,\it\
eliargi! Iieeaiise plaiiiliU' had not deilairil |J
time. Tiisiiii \. Mi-I,iiiii, I P. II. ,'l,'i;i
Cliamli. Itii'liarihi,
Where a party liy his own eonduit. .iinl .ulnr
MJons has jnstitied the calling him liy ,1 \\|.„|,,l
name, he eaniiot ohjeet to the line of mirli ii.ng,!
as II. misuoiiier, and Held, that in tlii.s i-^A
defendant was preeluded from raisiiii; the dlij.F
tioii. Ilrnini v. Siiiilli, I P. I!. HIT. Ch.iin'J
Uieliards. See /'i(/7 v, t'lniijilii II, | |' |l
•MH, p. I!l!t.
0. «^
iiersoual knowledge, I have good iriwni to 1'
lievo that the said .1. I(. is privately iii.ikul
away with his pro|K)rty, with the iiittiitiunJ
realizing the same and leaving Upper Vmii
and that unless the said .1. I!, is fortlmitl
apprehemlod he will leave (!anada, ami ili|«
out of the jurisdiction of this hoiinmaliK' i'i«i|
' " " and for the express ]iurp(isi' efili'intl
ing luo of the damages I may reenvir wiiiT
him." 'I'his was eontiriuod hy similar :\\m4
from two others, Uiion motion In sot .vJ
the eaiiias or to discharge defciiil.uit : ll(i
that the court could not infer that \i\m
did not sh w such facts and oirciuii.'*t:iiii'fs
satistied the judge there was reiusmiiililf
prolialile cause for liclicving that ilefomliiiil'
about to leave the province. I5iit, iiiM"
OS ilefcudaiit's owu allidavit denicil the ciii
HlKlllt'lilin, IIIIOII
lldit iiiii'i|iiivocally. III
_ uliii'li it might lie
(III (llieii) of lea\ iii^r
ilcivil llilii 1.0 lie disci
lliili' till' I'.'ipja'i and aci
lie li'li'I'li'il to as (iji
■sutM .siiili a.'i Wfiv iii.ii
p/.//, i;i('. p. .(.",;.
|l)i'frliil,'iii|. .'uvore f h.i
' lii.H .'irri'.'it, or of m.-di
nUiiiii III' i|iiiUiiii{ ( ',111,'
iliil mil. ih'iiy or c
jlriilli til nil iilil;iiuil|ir IJ
filing lliat lliese |;ir
lini'il lii.i ilificliaive,
[llclil, llial, on (lie at
K', the caii.se of action
I variant llie arrest «ei
Miilili', tliiil. ilcfeiidaid.'.i
lint ;ilirilll, to leave tli
Idiic, iiiiilrr any eirciim>i
I ;isii|i' the iii-rvMt. /),
, lO.'i. Cliaiiili. I»r;ipci
\Wlin'i iiiir iif mri rnl Di
Bli .vvinc uiiere two de
I'll a joint e.\:eciitii.
jriiii; (■(iiiiu to an arran>;ei
|t, ili.sdi.irged liim ; — fd
I'li.iHmrgeof ih,. ,,t|,|,
f,.1<», S. (kSS.
liischargu of oi„> ,,l
I'lti'Mi ijii a joint ill, l^riii,
fs. hiiiiivin, !■;. 'I', o \
liiiiifoniiality ill arre.stin
IV' imiilu a ground of ohi
miiiiitoii V. IV/ifliiii, I (
w'lMuii.
BainWr having uiTostod
mik. ii iiKirtgnge from
'■hilt it was taken only a
Ii. iliil not desire A", i
J.V Han iievertliele.s.s onl
Iv. /W, 2 P. |{. ,|7. _.|._
•"^L'" I y. 3 (a) p.
7. Pi-ilrlii-c hi ,1;
J"';Vi' ""^'-'"" W'w mai
■anil Ih,, anvMt for invgn
' tlif pijHdiier, or to \l
It'iWcaiice.led, asthocii
»i"a(li; the rule a|,H„|„tu„.
["iwinkedthiui coilM |„
1 ^^ Sr„l,tll^ ;((, ^y_ _.,y_.j
H- iiIhI to Hot nside an a
F"l II' allhlavits lih.d,
r' ; ''"''■'■'' "''w "ot ai
Pi' , hut could only 1,0
■"",/;, '•'"■• «'n't which
■"''""■« V. lluirUoH, J I
[';r-^'l"'''ty<'"»'I.laim'dol
Mill; rill,., or lefen-el I.
N'J'theallidavits. r •„,
H'l ■-Mataiilay.
■■'"^hid,., party was Z
.,,. AUUKHT.
r ^ iii„.iHiivtii'n(l,v, imtl hIicuciI I'ip'miiHlniiccH
' 'it Ih' iiilVni'il III' IiiuI Mil iiili'ii-
'ii\ iii)i (III' iiinviiii'i', (III' niiii'l,
■vii (llii'i
HI 'I ; • , ,. I I I I 1
wliiili it iiiiKlit •«' ii'li'iit'il III' 'iin' "I' mil'"
It'll) 111 IciiN iiiK 'III' ri'iivii , 111'' I'liiirl,
[,i(ivil him l" '"' ili»''liHi);«'il. Iiiit irlii I III Hi'l'
■ill' llir raiiiii'i iiiiil iiiii'Ht.. 'riiitiili'i'iHiiiii ill mil.
-ilii ri'li'"''''' '" "'< I'l'''"''''")' "'■'''■''■' ii|""' ""'■
lavit'i Hiii'l' i»'' **■''''•' '"■'■'''' '" "li'"'' '•• /''■""'" V,
Vi.i.ii, i;i<'. •■• ■••"''•
llii'fciiiliiiit mviii'i' liiiit ill' liMil mil. Ill (III' (inn
If liiH:ui'i"i(> iir III' nialuiii; liin alliiliivil., any in-
Liiiiiiii' i|iiiL(.iiii.'; < 'aiiail.i Willi iiilciit, \i'., Iiiil
u ,||,| ijiil. ili'iiy III' I'Nliliiiii any nl (In' liirtn
L,|ji III III! iililiiiiiiii;; (III' iiiili'i' : ami (In' ciiiiil,
jdiliiiK til''''' III''"'' I'll'" jmitilii'il llii' iirii'Hl,
Hiwiit lii:i iliHiliai'i'i'. ■Iiiiii I \. «//•<«..(, '>:>l). It.
[llijil, lliat I'll 'III' iiHiiliivil.;* lu'l mit, in (lii.'i
U. ihc I'aiiHi' III' arliiiii ami tin' riiriiiiiM(,anri'!i
r»':in"iiit till' airi'Ht wcri' Hiillicii'iidy iiiaili' mil.,
hiiiili', til'''' ili'i'iiilant'ii 11" II adiihivil. Uial lii'
I lint ';iliiiii(. (.11 li'avc till' iiiDvinri' wiiiilil imt
bill' miiirr any rircllllintaiii'i'M, In' Miillirii'lit tn
asiiii' Mil' nnvM.. Dili^h v. /hiirtiml, 'A V.
10,"). Cliainli. Kraprf.
m
Krrfir V.
I I'U'I
lill «!',
■lit bi
bill
Iii'1t!h|
l'r,ii''l
i\ii.i.i ■rlmnii'il.
[iiiii.a8i^ wliriv two ili'roinlanl.M wi.'ii' in cwh-
1,11 a jiiiiit fxi'i'iltiiin, ninl tim plaiiitiir
jfiiii; cDiiiu tn an ananjti'iin'iit with ono ilcl't'ii-
Lilixuliargril liiin : — lli'M, tli;it tlii.-i u|H'ia.ti'il
('ilwliarf;i' III' the iitlnT. I.'ulifi \. M'l'ur
:,(l. S.dSS.
,„.: iliBciwi'go 111' line 111 twii (li'l'uinluiitH in
iiiti'iii nil a jiiiiit juil/^iiii'iit, iliHi^liargcH liith.
|/,'V. Ddiiii'U, v.. 'W •! Virt.
liiinfiiriiialily in aiTi'stingnni' ilcfi'inlaiit can-
|I«:mi;iiIu agnmnil nl' nlijiMtion liy tlii! (itliiT.
mt/mijhii V. Whrliiii, I ( '. I,. ( 'liainli. iri:<.
■iiisuli.
ftiintilf having UrTostcil A. ami H. on a la.
Ituuk a iimrtgago from K. and iliHi'liarj^iMl
I; IjiititwaH takoii only n« I'ollatoral Hociiiity
11. dill not (losiru A. ilinohargi'il : -Held,
kA. w;i« novurtlicIosH ontitlud to it. lii'iijn.
|v. fW, Ul'. K. M. -VA:. V\»rui.
Sco IV. ;j (a) i». 19(1.
7. Pnirlirc iti Aforiini.
iliiic a niotiiiii wan inaile to Hi't a '.di' a
iaiiil tliiMii'i'cHt fur irregularity, and m dix
\: till; iiiimmi'r, or to di'liver u|> llif liail
ItiiliL' caiiculoil, UH tlu! cam) might Ix.', tlii'
liiiailu thiM'ulualiHolutu with uoHtM, althuugh
iMiisiuki'd than (.'iiiild In' grantrd. Ai'iii
iiwSnMi, :i(). s. ;m.
ill: iiIhI to Hiit anidii an arrest on griuiiidH
111 ill alliilavitH lili'd, wan dini'liargi'd
^'tiii' lii^l'i'ct wa» not a]i|iai'i'nt frnni tini
JviU, liiil niuld only Im a.sci'itaint'd liy a
|iw' ti till! writ which was annnxcd to
.l/r'i'li'/'H V. HolVIHIHI, 11. 'I'. 7 \ ii't.
bim.'i.nil.irity riiin]ilaiiii'd of iniiHtbi! |iointt'd
» till; rule, or rid'iirrt'l to in the riilo aw
Itiiijjiu the allidavits. ''(»i/,v. Xmiiiii, 'W
jet •.Macau lay.
pnoii llie iJnd of .Septt'iubur to Het asidn a
I III! which a party was arrested un the (ith
of Aiignut : lli'lil, not too lato.
Ilinr/,,,, I r. K. I. I', «'. M,'l,.'an.
W'lirri' till' iii'i)iimd allidavit to hold to hail wax
(raiiHiiiKdil liy tlii' ili'|inl.y rli'ih of tlif crowii
III llii' rli'i'li in I'lianilii'iH, at the ri'i|ntiii mill v. Hanlrr
hrn,d; 10 I,. .1. '.'Kl. ('. I,. ( 'hand.. A. WilHoii.
Ilrlil, that ill (hill I'aitii It wiim iiiinri riiMary to
iii't anidi' till' oidi'i' for arrcHl., an Hiilmtantially
till' Hunii' olijrrt would hi' ari'oiii|iliMliril Ity nii'l'i'ly
ili'.i'liarj'ini; tlii' driitor fioiii niMtndy, s\ liiih wjut
iliini'. /Ii.
Where the iieiHon of an iiiMolveiit delitor in
(liMeliarged from arre.it liy a foreign authority,
tliiH eoiirt will not Het aHJile an arreHt iiiade under
the |ii(ii'e,'(.H of thin eoiii t for the name eaimo of
ai'tion, it not heing hoiiml to model or rcHtrain
itn eoiiIHe of |ii'oieeiliii;; liy (hat of other eouil-
tril'.'^. llriiini \. //iiil.-y
an iiiHolveiit liiw of New Sink, hiixnniili v.
l/iiinwh, 'I'ay. .|:i,S.
After an arreMt for (.'(H.'l, and while dufemlant
Win ill eurttody, all matters in did'eronee were
referred, and en award made for the jilaintill' for
Clio. 'The defi'inlaiit wan dineharged. limii)
V. I'>rl(.'<, '2(). 11. ;!)s;i. 1'. < !. Ilagermaii.
So whul'u, under Hiinilar circuiiiHtaneeM, thn
award wax for a miiiii iiayahle hy iimtalmeiilH,
one of which waH dun : Hold, that the priHuner,
without Hliuw'ing payineiit of the iiiKtalmeiit due,
wan entitled to lii.-i diNcharjje. Itnlln'cn v. Hulii-
i-'ii, r. i}. Ii. iJ71>.
I When a dofeinlant in i imtody on ineaiie
)irocenb put oil the tri.d at one aNxi/eH, and at
till' approach of the following as'ii/en after
' heing appri;£ed that the plaintili h.ul iicgleettid
to give notice of trial prensed that tin; record
nii^lit he entered low on the docket to give him
tiiMi.' to jn'oeure a N.itiiem, and it w.is ho entered,
hut could not he tried hii' want of time : Held,
(hat defendant wan not iiupei'Mede.ihle lieeamio
the ean.>4e had not liceii tried Mithili three teriii.i.
(Ittiiliiii V. Fiillir, ') <». S. ;(l.
The court will in geiier.d inipoMe tcrmn on a
defendant whim an arrest in Hit aniile for niere
irregiil.irity, or a trilling error ; hut where an
iirre.st in made for more money tli.iii in due, and
there in a nuliHtantial di^feet, or if ii iiiaiiifent
injury lian heen Hn'it.iiiied, tloi court will not
interfere. liilHiujH v. /'iijii/jf, ,M. 'I'. ■! N'iet.
A mure release from etnitody under a ca. iia.
for a given time, in order to niakearraiigunientH,
if ponnihle, to Hatiafy the debt, in not ailincharge
in law. /)i(('(',i V. (.'iliuilitiihnm, ,'i I,. .1. 'liA.-Xl.
\j, Cdiamb. MuLean.
m
^y'
>'f
m-^
207
ARREST.
%\
! ^
M ! !
Where a debtor leaves the province, and
returns upon an agreement that he is not to be
arrested, provided that lie immediately proceed
to the settlement of his estate, and the cren a capias, and
gave bail. After judgment a ca. sa. wa? issued,
and proceedings being had against the bail, the
Erisoner was rendered to the sheriff, but gave
ail to him under C. S. U. C. c. 24, s. 29;-
Held, ou an application by the prisoner for his
discharge from bail as not being worth $20, &c.,
under 0. S. U. C, c. 26, ss. 7, 8, 13, that he
was not confined "in close custody in execution, "
and had not been ' ' arrested under a writ of ca.
sa., though not confined to close custody, but
has given bail" ; and, therefore, that he was not
entitled to be discharged. Hesketh v. Want,
4 P. R. 158.— Chamb.— A. Wilson.
Where an executor alleged that he had kept
money belonging to the estate for several years
in his house, until the same was destroyed by
tire and the money lost, the court held the
executor guilty of a breach of trust with respect
to the money, and his affidavit as to the destruc-
tion being unsatisfactory, refused to diauhariji
him from custody under a writ of arrest. /jifF
sun V. ('rookulutnk, 2 Chy. Chamb. 426. — Muwitl
Right of insolvent to his discharge from arresLl
thougli not entitled to a certificate of diacLarw f
HiKtil V. Ihiilth, 19 V\\y. 639.
Vll. Skc(»ni)
AliHIWT
.AND
IMTS.
AkHKST UN AUiJ
1. A/ti r dUelHirijc ur JirM arrcul act (tn'nlf,
A Heceen discharged fi'om the first on gi\iiig a joiJ
note, and agreeing to pay the costs, the m
having been dishonored and costs not i
although an action had been brouglit ii|joiiti
note. MrDimald v. Amm, E. T. 2 Vict.
Where a defendant w.as discharged for deifvn
in the atlidavit of debt, on entering a canin
appearance, and afterwards arrested on ana
writ, the arrest was set aside, the plaintiff buj
ing no right to make a second arrest in t
cause, where the entry of an appearance is i
a compulsory condition of discharge fmiii il
tirst. Benson v. Adiivis, E. T. 3 Vict.
Where an arrest on mesne process waii
aside for irregularity, and tiie plaintiff afta
wards proceeded to judgment : — Held, tiiitij
might again arrest defendant on a ca. sii. [m
on a new affidavit. Gordon v. Sc
()
Freajnstieet;ikesl,.ui
pnio, a seeond ari^cst f,
'Mine cnmjd^iiManl,
Pefcii'lant cannot bi, ,u-,
Mod after aj,pear,ince
'■'""I'-'rfMrhi.saiTn.st, as
hv""''n alias writ afte
hl;pl.e.s only to causes wh
•I't. I'OSS V. Ci;^
ffhorc
■'/"
14
>".!,
^m.
00
\RRRST.
210
V*,
rtie plaintiff then took out a rule to diseontiiuic
1 • g„i(; on payment of costs, if any, ami an-ested
Cfemlaiit ii» t^'^' Queen's Bench for tlio same
Vse. ' Defendant was dischari^cMl -1. IJecauHc,
tthti l"'^t arrest had been avt aside for a sub- ;
jntial defect, there couhl he no second arrest ; I
Because the first suit haroeess a
iinler obtained by defendant for the
iery "f particulars, with a stay of procood-
(lies lint operate so as to prevent the
fciff frnm arresting the defendant on an
writ. Wll'. S. 7"24.
[Icfcuilant cannot be arrested on an aliius
Jsiicil after appear.ince entered to service-
irocMs, where it is necessary to obtain a
|8orilcr for his arrest, as the statute allow-
estfiiian alias writ after serviceabhi pro-
kpplies only to cases where the cause of
lisiiilclit. A'ov.t V. C^iyiiliiir/, (I (). S. SoG.
I vfherc a judge's order is iicc ^ssary, a
pit cannot he hehl to bail on ,>n alias
IRmmnx. YicUinu, M. T. '2 Will. IV. ;
; Vr,^,ih,u-i, (; O. S. S.'rti.
U
N'lll. Cosis INDKU (JoMMON T..VW PuoCEDritK
A«T, s. Wli. (FoiiMKKi.v 4!) (Jko. III. c. 4.)
I. .l//'''/o,v7.t oil npji/iriilioii for.
An application for costs under 49 Geo. III. c.
4, must be su))ported by affidavit stating that
defendant was arnwted witlumt reasonable or
))idbable cause. Mcliiio'ih v. Wh'ili; Tay. 57.
Where the difference between the amount
recovered and that -iworn was only £,1, and in
defendant's aflidavits in support of an applica-
tion a wrong Christian name was given to one
of the idaintiffs in the style of the cause — the
court refnseil to rdlow them to be amended, and
discharged the rule. Ruf' v. Vinil; 1 Q. B. 5.
The rule was refused, because it nowhere
apjieircd in the aflidavits for what sum the
plaintiff had a verdict. I'm,; II y. Unit, 1 Q. B.
415. -P. C. - .bmes.
If the facts sworn to in the affidavits tiled
show want of reascnuiblo and probable cause,
that is enough, without swearing^ to it in express
terms. Lai/rmiil,' v. rii/l,;i, IP. H. 22.- P. C.
— l)r.i])cr.
2. Olhrr Cmcx.
Wlii'ir till rauxe lain hf>en »'r/('('rp(/.]— Where
eviilcncc had been given in court of a larger sum
being due to the plaintiff than lie had arrested
M I
: i;4i
1 1' 51) J
t '
PfTT
sn
ARREST.
\l':
V i
l-il-l:
defendant for, and the case was then referred
with other matters, and tlie arbitrators awarded
the possession of a mill to the plaintiff, and £6 or
£7 only in money, the court refused costs to de-
fendant. McOreaor v. Seotf, Tay. .')(>.
Quiere, under what circumstances the court
will allow costs to a defendant under the statute
where there has l)een a i-eference. Bfunl v. Ort;
Dra. 40.
Where plaintiflF arrested defendant for upwards
of £,30 without allowing a set-off, of which he
must have been aware, and a verdict being taken
subject to a reference, the arl)itrator8 allowed
the set-off and awai'deciir/'i; H. T. (> Vict.
—P. C— Mclean.
Where a verdict lias been taken subject to a
reference, defendant may l)e allowcil his costs ;
but — iSemble, not if tlie reference ilirect the
costs to abide the event. Xir/iot.sim \. A/lmi, .
The plaintiff is allowed no costs where in a
bailable action he recovers less than the sum
sworn to, and the court will order defendant liis
costs ; and the defendant is entitled to set off
his costs against plaintiff's verdict. Rnrnum v.
Lfp, E. T. 3 Vict. But see lliii^mi \. Phr/,,,,, I
P. R. 24.— P. r.— Draper.
Where a defendant ai-rcstcd under a bailable
writ has obtained a nilc granting him bi.s costs
under 49 fJeo. 111. c. 4, the plaintiff is not enti-
tled to tax costs on entering the Judgment.
The effect of the first clause of tliis statute is to
deprive the plaintiff of all his costs of suit. And
the word "recovered" in the latter part of this
clause, as well as the M-ord "recover" in the
former part, refers to the amount for which the
verdict was given. Ilhjmn v. Ph'tan, 2 ('. L.
Chamb. 7. — Draper.
This point was considered at least doubtful
in the same case, I P. H. 24. — P. C. -Draper.
Where the rule nisi was not correctly intituled,
the court allowed an amendment by the affida-
vits on payment of costs, lin// v. MrKrn-.ie, T.
T. 7 Vict.— Macaulay.
Plaintiffs arrested for £fO(5, and got a verdict
for £54 78. 6d :^Held, under the special circum-
stances set out ill this case, that the plaintiffs
had shewn " reasonable and i>robablc cause, "and
had sufficiently explained their failure in recover-
ing the full amount for which they had arrested.
aohlie V. Cameron, 1 P. 11. 20.-1'. C. -Draper.
The plaintiff cannot object to the notesi oF tl^l
judge who tried the cause being referred to, f„J
the purposes of tliis application. //«/*,/, .f
PMan, I P. n. 24.— P. C.— Draper.
Semble, that one of two defendants, arreiWl
I for more than tlie sum recovered, cannr)t obtai^l
I costs of defence, (i/hmx v. Varrji, I P. R. jjil
; — P. f'. — Draper.
I A bailable capias having issued, tlie A^m\
slieriff went to defendant, and asked him tofj^l
j bail. They both then went in searcli of bjjl
j and a bail bond was executed : — Held, a sgij
I cient arrest to entitle defendant to apply ; wl
i Held also, that under the circumstances of tla
' case, want of reasonalde and probable cause ^±
\ not shewn. Movnr v. TcclzfJ, 1 P. I!. %<) _f|
IP.— IJichards. ■
j IX. I'kivii,K((k FKOM Akhksi.
An officer when emjjloyed in executing \m in:..*;»' ...rustud the
consented
13-2.
I plea in bar that the plaintiff' arrcste
Seiulant on a ca. »a. and afterwards cons(
)his
I Uml«i- 1 Vict.
21, 8. '27, a magistrate cannot
se'tiiVarrest of a party in tlie lirst instance ;
',M»«t tirst be summoned before bim. < 'nnik-
[sbiuble, that a constable may legally allow a
Utor whom he has arrested, to go at large so
as' before the return of tlie writ he deliver
^totliealieritt'. Itoo" v. Wchxti-r, '»Q. B. 570.
I An arrest by a constable on mesne process
ctol to the sheriff' is not legal by the 2 ( Jeo.
bS'J, unless the affidavit of the debt be
nexed'to'the process. AV^i v. Whiln; 5Q. B.
IC'citionui granted to remove cause from County
mrt defendant having iiecn arrested. Wiiia-
rx! l>rmiil>; 1 I' !«• »">T -P. (J.-Hichards.
Inhere a party arrested under a capias penil-
L action, and before jiuli.- nent, gives bail, aiul
tL judgment and .m. i.a. to Hx bail returned
lest inventus .idered to the 8heriff''8 cus-
bv liis bail i- -heir own discharge, such
Lie: is still under mesne process, and is not
finwi in execution. Ifish-lh v. Wtiiil, 17 C.
ARSON.
Sci> Ckiminal Law.
As to the defence of arson in actions against
insurance companies, and the evidence necessary
to support it. Maim v. Tim Wvntvrn Assurance
do., 17 Q. B. 190; Richardson v. Canmla West
Fiirmcrs Insurance Co., 17 C. P. 341 ; OoiiUl y.
liritisli American Assurance Co., 27 Q. B. 473.
ARTICLED CLKHK.
.Vcc ArroKNKV anu Solicitor.
jKugliah statutes I Anne st,
ic. 9, relating to escape warrants, are not
■ ill this province. II).— A. Wilson, dis-
hij niiiriiHii abtxuitwv/o . .a.i»»«w ««. «., C. O, tkllO
jinec.
ioice
jiig.
nble, a person in custody on a criminal
may be detained in custody in a civil
Puliiier y. Hoijers, (> L. .1. 188. —C. L.
nb. -Richards.
Bitre, whether after the voluntary return of
leaped prisoner a plaintiff' cannot accept such
m, and lawfully charge his debtor in execu-
fby merely delivering a ca. sa. to the sheriff".
_A. Wilson.
irgiug in execution is the process whereby
joner in actual continemeut is detained in
b(ly, whether at suit of the same or a differ-
llaiiitiff. III.— A. Wilson.
ie plaintift' is not compelled to charge the
Want in execution in the county where the
fhave surrendered him ; he may be charged
e the venue is laiii. Beattie v. Roliinson, 1
.Chainb. 217.— Burns.
|lil, that a constable executing' a warrant
luniierthe Fishery Act, 31 Vict. c. (>0, D.
feng bim to convey plaintiff' to gaol, and
toler to hold him for 30 days (absolutely.
Lot until the tine, &c., be sooner paid for
Bonpiyment of which the warrant was
1), had no authority to receive tlie money,
Kiharge the prisoner. A molt v. Bradhj,
[p. 1.
.\1UIEST OF JUDUMEN'l".
See. Judgment.
.\RIIEST, WRIT OF.
loK AuMojiv— 6'ce HuaBAsu .vxu Wifk.
ASHBURTON TREATY.
.SVr KXTHADITIOX.
ASSAULT.
L Ckimisai, A.ssAiLr— ,Vc(- Criminai. Law,
11. Action' kor A.s.saui,t and Fause Impris-
onment.
1. liij Constable
2. Other Casi-s
-Sec COX.STABLE.
See Tre«1*ASH.
ANU BATfERV — .See
III. Action kok A.ssault
Trespass.
IV. I'riTiNc Persons off the Train — .SVe
Railways and Railway Companies.
Where a man is himself assaulted by a {jerson
disturbing the peace in a public street, he may
arrest the off'ender and take him to a peace
officer to answer for the breach of the peace.
Forrester v. Clarke, 3 Q. B. 151.
On motion to (piasli a conviction by two
justices of the County of Norfolk for an assault :
— Held, 1. That stating the offence to have lieeu
c(nnmitteil at defendant's place in the Township
of Towiisend was sutticieut, for C S. U. C. c. 3,
s. 1, sul)-8. 37, shews that township to be within
the county. 2. That it was unnecessary to
shew on the face of the ccmviction that com-
plainant prayed the maj/istrates to proceed
summarily, for the form allowed by C. S. C. c.
103, 8. 50, was followed, and if there was no
sucli request, and therefore no jurisdiction, it
should have been shewn by affidavit. 3. That
it was clearly no objection that the assault was
not alleged to be unlawful. Re/■ /.,«;«/.<.
(a) (Uiicnill;/, 2 IS.
(b) A'^uH Henlihiil Lmnh, 221
II. KXKMPTIONS.
1. I' mi If rill held lii/ the Cmtrii, 2
2. O^Ar-/' C(wc«, 223.
III. Ahskhhorm.
1. A/t/ioinliiii'ii/ iif, 224.
2. Ddlii'x of, 224.
IV. KqUALI.SATKIN (IK HaI'K:
V. Al'PKAI. TO I'oi'K'l' f)K
CuuNTV Ji;i)(iK, 22().
224.
Hi'.vrsioN
AM)
VI. Statuti; Lauoi'I!, 228.
VII. COLLKCTIIIN OF EAir.S.
1. ni'itir.f.1 viid S(d<; 2,S0.
2. Olhrr (^.Vi.s/'.-i, 230.
VIII. JlKSl'ONSHlir.lTV OF COLLKCTOHS AN 1> TIIFI H
Sl'RKTIKS, 237.
IX. Sai,k of Land fok Ta.vks.
1. Proof of Tiucti III Arnar, 239.
2. .S'n/(- (tftir Taxes paid, 241.
3. fialeii iindi'r J ]'kl. c. 40, 241.
4. Apiiortioiniicid if Poijuwul, 242.
5. DUlrcM oil Pri-iiiUf-<, 242.
(). Non-Iiemlrnl Limdi, 243.'
7. Several Lot.% 2H.
8. Tre.amrer'n Warmiif, 24j.
9. Advertisevieid, 24G.
10. Improper Conduct id Sale, 247.
11. Dull/ of Hherlff, 24'J.
12. Sheriff"!* Cerlijieale, 250.
13. Sheriff's Deed.
(a) Descr'iplUin of Land, 250.
(b) Other Ca-srs, 252.
14. Effect of Miii-liiiKjee PiirchK/iiinj, 253.
15. Jiecoreriiiij bock Purchase Moiiei/, 253.
1(). Pedeiiipthu of Liinds Sold, 253.
17. Olijectlons euri'il l/i/ SliUtiles, 253.
18. Other Cases, 257.
X. Recoveiunu hack Taxiw WiioN(iFi i.i.v
iMPOSElt, 2G0.
XI. No.n-Hesident Land Flnu, 202.
XII. MlSCELIiANEOUS CASES, 2()2.
XIII. Customs and Excise— Sec Keven ue.
XIV. Covenant fok Taxes— .SVc Covenant
FOR Title.
XV. .Jl'uors' JCxfexse.-^ ketween County
AND City — See Jrnv.
XVI. Taxes as between Landloku and Ten-
ant— »S'ct' Landlord and Tenant.
XVII. MUNICII'AI. lU-liAWS HE(fARIilN(;~,s„|
iMuNiciFAi, Cohfokation.s.
.Will. Sciiooi. Kates .SVr Pi'iii.ic Sciiuuls,
1. Assessment.
1. d'emrallil.
[I'hi /•nsrii/ /Is.sfxsiilriil Aet is .i.i Vii'l, ,\ „■(;(/ I
as aim mild. Ill/ ,:.! Vicl. c. .'7, <>., H/f I'icf. v jf
0., and 117 Vict. ,: /,'/, O.J
All assuMsinciit for scliool jmrjmaus fiiiiiintl,!
levit'il liy ail hiiu(|U,t1 vixU: in dift'erciit wniil.sj(l
11 city. /" /■'■ Scot/ V. .^fiinieipiit ('(iiiiicil (ijijM
I CUi/ <;/■ Ollaira, 13 Q. H. 3K!. |
; llulil, th.at a iiiiiiiicipal council has lio uutliril
I ity to place names on tlic a.sscssnient roll aftwi'
I is liii.'illy jiasscd by tliu revising tribunal, /.'ipij
U'.e. nl. Clint v. V/ihain, 7 L. .1. ()!).--('.(',
Mackeii/io.
' Wliero several devisees ami executdw «k|
, rated to a seliuol rate in respect of the pnmeitil
I of their testator, as ".loliii A., and lirotlmrs'l
which entry appeared to have been iiiadeattiil
'instance of some of the plaintifTs, Imt twdij
I thciii only had slept on the lireiiiisesdccasiiiiiallj
i although such was not their usual plate (if
I deuce, and they bad received the iif.ial iiotij
I of assessment in that form witliout aiiiicalini
' and the same two liad paid taxes on an Msesl
ment on the township roll in their iiidiviiliL
names: Held, I. That the facts ationleil aj]
eient evidence to shew that the plaintiffs wai
" inhabitants of the school section," for tliciL
poses of the rate. 2. That the jiartits wJ
surticiently named on the roll to render tiici;
lawful. Ap/ieli/arth et al. v. (t'r(diiiiii,'i{'
171.
The east half had been assessed seiiai.ittlil
and it was admitted that the whole of
had been granted together : -Held, uiidcrl)!
14 Viet. c. 07, that it should be presumeil
tax on the west half had been paid, ami thill
had therefore been properly assessed separatdi
McDonell v. MeJJomtld, 24 Q. B. 74.
Held, that the effect of the 29 & .SO VidJ
53, was to abolish the distinction hetweentlf
mode of assessment in cities and cdiiiitios li
for the purposes of the Jurors' Act and otli
wise. Thf Corporation if the (/oiiuti/ of Frm
//(tr V. The Corporation ii„i, III' s/
I C. -Hughes. ■
■eld, under C'. S. 17. (_!_
f I'lcpertyof ajiartners
fast It at Its usual iilaee
If, 7 L.J. 103. -C. C-
fsteanihoat w.is held pei-
icily assessable at one o
|ii which in summer it
jiiitcr it was laid nj). /)
lid, that the ])ipes of a
ligiiout and under the sti
Redeemed "land," |,„t ,
f' »■'"'»' the Asses.snieii
\ lnrp(/ii.-i Co, 111)11, until,,
U04.-('. ('. -Anustro
Be plaintiti' l.cing i,, ],o>,se
> was MSLSsed therefor
>twln(dihoa].i)ealo(ltotlfl
Itotlie County Court judu
r asjigiMiient of the .^o,
I trusts for creditors was
psnaiuGwjis erased an
|hite(ltheref,,r. Theplai
pat his name was not <
> >on, or that his grou,
Pe goods were not ecmal
piiemMdso^^,,,^^^ij^
fc(hstrame^„ //,■„,„ th,- (Uwrl „i
fl/ii'Cili/o/ Kill!/-:/!,,!,') I,.,}. S S »-;()
: But in aimthc-r o.i«e u vviis h,].i „„t t,. 1... Ihl,k.
feir-oim / (!„h,„i,„ <» i i J ';
4'. C'.--^BoaH-cIl. •'' • ''■ •'• ^- •^•
Bank stook hu](l l)v ;i iiitsih, .,^ i.. i.
mi Vonrf of IM.sion „,• Khui.U,,, ' \ , TZ'
Kil.-C. C. -Hiim.wes. ' " ''• '^- ■^•
I Ht(ii;k hull! Jiy ;i icsiMcnf- ni' i.-; i
Uant« Bant which YL' J dg'::,''''''V
artyo^vnea out of the V^J^^^T^ l"'""
«.! or chief i.kco ofS. .^ ''^'^ f tla
, • ' iil8
K''>"l'li'il ivitli jiotiii ., ^ '"''*' ^'''^''', beiiiLr
'^■'"« «heun t.!. I,e in kl.tl %*''*■ pl'"»tiff not
""' l«-i™a.u,„tlv iv«i,|„;, " , I»"™?. I'hA™
I *-• ^.■- Illlyhc'S'.
[of Elgin, forunn. paTt of ;'','" ' ^' •"""■
Lrt Stanley Koa.l.^wL ' , t. I '''h'''''" '""'
tlforitonuofyear^t^rS' "iJ:f.'''r''
N"ot re«i,lcnt.s of the villa^^e of'sf t/ ' '''"'
irest, cul.l only |,e assessed as 1 ', "'""'
|y; 2. That as the ;M'K.IIants!l .'''' »'''"•
leWll.,ge. they conl^ nS a t'^'Hi'^
Uciimlcouneil of that vilhi,rj "' , T ' '"> t''*^
Jriuterestin the roa.l. / Kr ^^'/"'-^ ^" '
I C.^Hughes. -^ """"' ' '- J- ■!(.•,
leld, inulcr C. S. l,'. (.' ,. r- ., , ,,
^propc'ty of a j.artnei'shi,; nnStt , "' '""';
Isteauihoiitwas hehl Dersoii)! „.. ° ^ '
fcrly assessable at o..e o he t' '",'■'•''• ".'"' '
|.whichinsuu„nerit i /f^^^^^
jiiitor it was laid up. //, ' ' ''^ ^*'"^'>'
ll(i, that the i)iiies of •■ „.,„
(gl.o«tan,l „,!,Ier theVt .e^.* ^ :;yT^ '''j'}
ledeeme.! "land " l,nf Mfi ""^-^ '-""^'l
f:witi.mtheAsLi:;'*t,i---^jF';-:
ee;
^^•asedt,, i,e «u<.j/ j' k'k '"'^fe'" "' «t. fju.mas
: ^'""■^^", and ha.l not aftc C ''"^ "*'>e''
I ;\''V. IS(;0. heen .-, res ,li "';""r"«en,e,it of
"«'l.l, nndei- (' s J , 1 ;'- *''« village :-
""t be a.sse.s.s..d l.y the "vili., ''"'/''"' ''" ''""1icrthan$l7o4',^, Jte^'"' '»i a,no„nt
•^-'OO, thr i„-,.per anionnt f, t """ ^'""^ ""tl«-
^'-"/-v- V. yi.Vii;^:;-J;- l'---H..glZ
•'■ -1.1, su|iia. ' " '■' ' "■«"", 10 L.
""Iv t«nU.o.ani;%*"'\'; '---"-'t, was tire
I agency of the l/aiik of wLi^ V'" ''"«">ess of
taken'T,,:;. J'':;^'-,,^«i;I-.t "f Vienna had
].al.ty, whither the ah i ..n . 'J'V'^''^'" "'""'ci-
«aectshad been reSyS'f-*"^ ''""««''«W
; "'"«t «' Jii.s fan.ily reS 'w !f '^'■^*"* ^n'l
I was takni, an.I he remai.m ' *"' assessment
forinei- domicile .huW tK, w ''"i** "' ^^
tH.t;dcing,,f theaSme t ^J* '^'""^'""^ *«
(the following n...nnW 7 • 'T /'f ^"'""^ °»
the la«t of his household e& f »-emovi„g
fmal .leparture, whe the ' '"'"'' *''*'''»g h's
''s«ass:^Hehl, that ], ^u'lTr'"""-. *''*'"« *"
purpose of assessing £ in, :!"^«:'«?." for the
section of theO S^U r T- ""''w -"e 40th
soil, his i)eriri;i.,o.,+ '...;, "• '**'> ""
|e pliuiitirt heing in i.o>,sessh.n „f . ■
kwaa^issusaed therefor hr. '*'"'' "^
Jst which he apoealcdtH, '"^'T" "'""«-
\ assignment of the .rood, 1^ V,"'*'"-
[trastsfwcreditors WK ?. I ?"^ '^- ^^•
Psname was erased ./"'il'^f'' ■'^"'' "'«
ftiitedtheref,^ The,.K .-^'"'.^ "^ J*- M.
fttat his name was , f ' ?""«'"''' ''"^^- ^'^"'•'' ^- ?'^'"6W»-:,r"'"i.''i' ""'' »»* «* ^
Jo them by the Dliii.fifV '°' t-'-^^es
6 that the plaintiff hav'„f,l„iid T^T"
^ .umo bemg erased from th" r ll h *'"''
^'1 from repfevying the gol^U^r
soil, I'ls permanent residon,; '/'"'^ *** %er-
^- Of LamiK
(a) Oenemlli/.
I^nt lands "deserilimi
>'l
!- r
M
. .1
■tj
dl9
AK8ESSMENT AND TAXES.
m
1 1
\ I f
M
¥1
(I
I
I
cli. 7, althougli iiu letteiti piitunt for tliciii have-
ever isHuetl. /><«- d. Mr(,'il/i.i v. Mi'/hmnlil, I
g. B. 432.
'I'he court rufimed a iiiainlaiiius t" ooiiiim!! a
niuiiiuiiial oouncil to altiT the iiHHeMmiieiit of tlie
iippliuaiit'a property us Hcttlcil ou iippoal ))y ii
court of rovisioii. I'licy aim) tluoliiieil to ex])ruHs
any opiuioii aH to the priiiuii>Iu to he a(lo])te. 1!.
395.
Untler l(i Viet. c. 182, s. 21, only tlic land
oucupied by a railway is subject to assessment,
not the superstructure. (In nl Wix/irii It. IT.
Vo. V. lloiM', 1 :>(,». I'.. ItiS.
Upon replevin to reoovcr yciods sei/cd lor
taxes, the plaintill's cr)ntendcd, that their land
was not assessed at the average value of laud
in the vicinity : that no i)roper notice was
given of the assessment ; and tliat the roll was
not completed within the pro|(er time. The
defendant produced a letter written by the
plaintiffs' solicitor, as follows: "In reply to
yours of the ir)th instant, addressetl to the
managing director of this company, I am
directed to inform you tiiat the (> :
Held, that this letter did not tix tlO as the
average value of the land, and that the notice of
iissessment, being served after the time for the
revision of taxes had expired, was too late,
nnder which they hiul iissessed the plaintill's'
land at £10 per acre, while the average value of
the land through which the railway went was
£1 10s, The plaintiffs, therefore, were held
entitled to succeed. (Inut Wi-itrrn Ii. W. Co. v.
Fn;mui, 8 C. P. -'-il.
Where executors and devisees in trust of land
were assessed as owners : — ^Held, that they were
properly so assessed, aiul that their own goods
might be seized for the taxes. Dcnimnn v.
Henry, 17 Q. B. '27<).
Semble, that a lessee of a house in a city can-
not be assessed as occupier when he no longer
occupies it, although his term continues. J/r-
Varmll v. WatkiM, 1» Q. B. 248.
Under C. S. U. C c. 55, \,he 10 per cent, chai'ged
upon arrears of taxes due upon land is to Ix;
charged upon the whole amount due at each
annual settlement, thereby making it a com-
pound computation of 10 per cent each year,
and not upon the amount of each year's taxes
separately. Gilffitpk v. C'ily of /lainiltuii, 12
C. P. 426.
Held, under the facts stated in tiiis case, that
the land was improperly assessed for the year
1858 as non-rcsiaent, being occupied, and that
the sale being therefore for more than was due
was entirely void. AUan v. Fisher, 13 C P. 03.
Held, that the district council had no ^mw^r I
to impose a tax for I'cpairing the romlsand bridM I
generally, nor to conline such tax to unocoiitiiui I
lands only, noi i. impo.se a t.ix of so much pe, I
acre, instead ot so much iu the pound du tlid
assessed value. The land having l>een NiiMf,, |
arrears of such taxes, in addition to arrtanl
accrued under the statute :- Held, that tbuiial, I
was void. Qua-rc, whether the district cmiiKii I
could direct laud to be sold for payment of taxetl
imposed not by the provincial statute, Init li;!
their by-law. />(«- il. Mi'd'iff v. A(/h7/o«, jl
Q. B. !)l, follow('d in Willlitiii^ \. Tin//„i; I3(|
I'. 21!).
(Mic S., from 18.')8 to 18(51, inclusive, occiiim
as lessee, a house and land adjoining on lot 'in
part of which lot in 1851- hod Imjcu laid out Ijl
his landlord into village lots, and a plan %l\
He iiad been regularly assessed and had paidtVfl
the p)'cmises thus occupied by him, Ijut tliJ
whole of lot 24 had during the.se four years lietil
returned as non-resident. After the treiuuMl
had i.ssucd his warrant for sale to tlie sliurilf, lnl
was applied to to correct the mistake in IIkI
rolls, so iis to except the part occupied liyS.I
from tliat returned, but he refused to do monl
than allow the sheriff' to deduct the uiniigiiil
paid liy S., who to I'clieve his goods fmal
seizure paid uniler protest the taxes on tkil
renuiinder of lot 24, .l!228. He then applitiHj
il mandamus to the treasurer to make the otitl
rection, but the court refused to interfeie, /J
/■(' Srrh'r mill Pillion, Tri'iir"'ir of tin- ('iinnlijJ
Oii/iirio, 22 ({. n. I IS.
Tilt; omission of the assessor to distiiijjTiiiili.iil
his notice to a I'ailway conii)any, between tlxl
value of the land occupied by the roiul amlt
other real property, as reijuired by the aet, in
not avoid the a.sse.ssment. Such an oniisiioi
may be corrected on appeal by the (.'ourtj
Revision and County Court juilge. Scraggt
(.'orporation of Loiulon, 20 Q. B. 263, disaenti
from (Ireat Western K. W. Co. i: Rogers, 16(i
M. .'>0Q, ap])roved of and followed ou this |xiiii]
Y'/«' (•'n-ul \yi:i/i'rn Ii. W. atentco in 1853 conveyed tbe|
tis a whole, and it continued in one owner i
the sole of 35 aces iu 1858. In 1858 and l|
821
ASSESSMENT AND TAXES.
252
I jj iialf was assessed separately : — Held, not |
lobiectionable. For the next three years it was j
ligsessedin two parcels of 105 acres ami .'l.Tacri-s,
■ J for the succeeding two years the nortli half,
ImiO acres, and the west part south half, ti") acres, j
Lere assessed, with a valuation of $:VAO on the
liole :— Held, right. Tlif E(Hiil)iifi//i Life Axsn-
„„ce Co. V. tWiiiixon, 32 Q. B. iWA. j
Held, that the 13 & 14 Vict. c. 07, ss. 4(» and
17 dill not make the list of taxes directed to 1k3 j
Areoared hy the tre.isurer hiniling. McAdk v.
Pi/,30Q. B.349.
Where three distinct lota were assessed in
nljj and sold for taxes, the sale was set lujide.
Bici/iVv. Jiilnitliiii, I'iChy. 534.
flie omission of assessors in a city to nuiko j
ill complete the roll until after the 1st May, I
ea not avoid tlie assessment ; and the person
jessed liaviug appealed to the ( 'ourt of Hevision
1(1 county judge, paid part of Ids taxes, and j
(fused to pay tlie rest on a ground inconsistent j
ritli this ohjection, wouhl l»e precluded from \
iking it- ^'i''/^'!'' ^'- J><>i".l/ii'', <^ IV 10. T. 1874, j
I yet reported. j
hvhere there were two lots on a particular
■eet with the same nund>er, one on the south
iie an>l <>■>" the north side, and neither the
_ jineiit nor the sheriff 's deed on a tax sale
lereof di.tti"!,'uislied the one from the other,
sale wu.-. lield void for tlie uncertainty.
y)iiii(v. Wutkiiiiiloii, 15 ('hy. 332.
See 111. 2 J). 224; IX. 7, p. 244.
(h) Xoit-/{i''. ('.
^ -Mackeny.ie.
•'"""^^■da're, as to the manner in which wild lands
loii-residcnts, not included in the assessment
^ were to lie rated under 5J((!co. 111. c. 7;
[iMimldc, such lands were not assessaldc at
,(W(frv. Siitlin-liiiifl, 18 0. V. 357.
till, that under the facts stated in this case,
odwas improperly assessed for the year
its non-rcsulent, being occupied, and that
tie teiiig therefore for more than Wiis due
intirely void. Allan v. Flslnr. 13 V. V. 03.
wer 13 & 14 Viet. c. (57, land was sold in
Ifor taxes of several years, incliuling 1851,
Vhich yejir the collector's roll had l)cen
pedto the treasurer, with his affidavit that
ion for not crdlecting the amount was
Kbe land was non-resident. It was proved
ly, however, that from the 0th February,
J until long after the sale, the land luwl
loccttpied by defendant's father, who live-
hill, 12('hy. 520.
In a suit to impeach a .sale of land for taxes,
it appearetl that about twenty or thirty acres of
the lot were cleared and fenceinion that the lot was
properly assessed as non-resident. Hank of
Tonm/o V. Faiiiihni, 17('liv. 514; in appeal, 18
Chy. 3!tl.
Sec //( rt: SirbriiiKl raxliiti, 22 (}. B. 1 18, p. 220.
11. KXKMITIONS.
I. I'rii/irr/'i liilil III) llii' Cniii'H.
I'laintilV in 1853 purchivsed crown lands
through the agent at Chatham, taking a receipt
for the lirst instalment. In January, 1854, the
commissioner of crown lands, in supposed com-
}>liancc with Ki Vict. c. 182, 8. 48, trans-
mitted a list to the registrar of the county,
(in the statement of the case set out.) Plaintiff
paid all the instalments on the land as they be-
came due, but obtained no evidence of his right,
except by the receipt. The land had never been
in the possession of any person, and the plaintiff
had always resided o\it of the county in which
they were situate. I'laintitl' having paid the
taxes from 1854 to I8.")!l under protest : —Held,
that these lands; were not subject to assess-
ment, ivs they were vested in the crown, no
license of occupation, lease, or patent thereof,
having been granted by the crown : — Held, that
10 Vict. c. 1.5!», s. 24, (f. S. I'. ('. c. 22, s. 27,
since repealed,) was not intended for Upper
(Canada : that sec. 13, C. S. U. C. e. 22, was
mandatory and not permissive, and that a license
of occupation should Ikj issued to every person
wishing to purchivse, Icivse, or settle on any
crown land. Shri-I v. TIk' Corporation of the,
C'oiinli/ of Kntl, 11 (!. 1*. 255.
Held, affirming the judgment of the court
below, 12 C. V. 284, that unpatented lands, though
held by purcluvscre from the crown who had paid
a part of the price therefor, were not liable to
assessment, although purehiutcd from the crown
aftcr.lune, 1853. Tin' CorfHiralioH of t/ii' Connti/
ofSinirof v. S/rirt, 2 K. & A. 211.
[See now 32 Vict. e. 30, O., ss. 108, 109, 127.]
I'roiierty, whether leasehold or freehold, in the
use or occupatiou of the crown, or of any person
%
'vn
w-':\m^
SS3
ASSESSMENT AND TAXES.
'.U\
!! h-
m
i
l\\
or persons in his or their oHicial oaijacity as ;
servants of tlio crown, is not aHHusHablo, citiiei' j
at present or as a eliargo njion tlic reversion. ,
SIkiii'V. S/iiiir, 1'2 C I'. 4,'ill. See, ,il,-in, .s7/a'' v. |
.S7(((»', 21 Q. P.. 432. '
Held, ftttirniing Siiaw r, Sliaw, 12 C. I*. >.">(!,
thtvt hvnd leased to a eoninuHsariat ollieer on
))ehalf of the secretary of state foi' war, and
occupied by Her Majesty's troops, was exempt
from taxation ; and that a provision in hiioIi lease
binding the lessee to ]iuy all taxes to whieli the
promises should be lialde eniild make no dill'er-
encc. But where sueh land before the e.xreution
of the leaH(! hail been assessed to the lessor foi'
that year: Held, that it was not e enforced from
tlio crown, and the otlic^er luid [Kiid to the collee
tor under lirotest, the money nii;.;ht lie ri'ci vered
back. 'J'/ii' /'riiiri/m/ Sii-ri'ldrii nl' S/n/i- I'a,' W'lr
V. Tlif ('(ir/iofiit'"iii ';/' Tnroiiiii, •_'■_' (,). I!, o.")!.
Where the preniiwiis were so leased in .Aiiril,
having been previously assessed to the lessors,
but the roll had not been returned : Held, that
the property was exempt as :ij;ainst the crown
for the taxes of that year. T/n- /'riiiri/Kil Sirrr-
tnrij of Stall' f'nr iVnr v. '/'/h ('uririrnfioii nf
London, 23 Q.B. 47(J.
Sec ('"fin- V. Siilliri-hiiiil, IS ('. I'. ;{:.7, p. -'.".S.
•_'. (Hhn- Ci.tiy.
Land which has nf)t been dcscribeil by the
surveyor general is not liable to be taxed. M"
d. Bilf, v. <)n\ 5 <). S. 43.S. .See /)n, Mr(, •;//;■<
v. AlcDunal't, I (f. B. 432.
Under !(> Viet. e. 182, s. 21, only the land
occupied by a railway is subject to assessment,
not the superstructure, ^7r"/ \\'c. B.,
that land owned by a city, but Icasei>oinl iiii'iil of.
The council by i'es(dution appointed (nic |.
assessor, who v.ms sworn into ohiee aud nuule ail
assessment. 'I'his appointment wiis nuuhi liyJ
1 vote of three ag.iiuiit two. The election of itA
of the three was afterwards set aside, niiil l)y|l
subsecpient vote the resolution was resi.iiii|eii I
and a hy law pa.sscd appointing another assessntj
I lioth made assessments, and much eniifiHJiJ
I aro.se. Under tlies<( circumstances tliu KH\g\
granted a i|Uo wan'.into to determine the valiiljiil
iif tlii^ last a]ipointment. In I'l' .Mi'I'/h riijn »,J
l!rii„ii„, 17 <>t. I!. !»;».
2. hiiiiin of.
Held, th;it the assessors are not li(iur.ilt]|
eni|uire into trusts upon which lauds are li
but to view each man's prenii.ses and timl ,m
whether or not he is assessable or eoines uuda
any of the exemptions allowed; and tlwt tinl
assessor upon seeing a dwelling-house {lufirawl
as such by a ministci' of religion for liis iinvitif
residence, is liouiid to assess the oecupiiiit fwitl
no matter ujion v. hat trust the frecheld in t
land upon which the house stands is
Fniiicliiiii v. Till' Corjioriilioii ii/' S/. '/'//own.; J
.1. 24."i. ('. C. lluglK^s.
See. 24 of C. S. U. C., c. Ti."), i'ei|uiriii'itli(l
names of owner and oecup.int to he (;iitereil|
aiiplies to the assi^ssor's ndl only, not to tlic«i|
lector's. Colniiiiii y. Kirr, 27 Q. B. T).
The omission of assessors in a city to iiii
and complete thci roll until after the Istnf.Mii]
I does not avoid the a.ssessmeut, and the ]m
' assessed having a])])ealed to the Court of Itevi
and county judge, paid part of his taxes,
refused to pay the rest on a ground iuwiLsijI
with this objection, would be pn^'liiili-, ...^^^
taking it. .Virh'lc v. Ihiinjliix, (). 15. K. T, l$;^^BeIil, tli:it the aggivi^at
not yet reported ... i- i^ - .. .»
m
Where the county
mstiinentg under that
iiituliiied tlie |)ersonii
llages at ten par cent
tlie exiMugg directioi
funvd to quiwli the b
nj intimated that it i
|reliad unon for i)rotecl
itt by this course the
rty ni towns and vi
jtter than it should
bet) that the amount i
lewiueiit rolls, folluv
jottg: but,--}reld, th:i
nrt clearly could uoi
Koril mill Till' I 'or/iorin
Decla-'atiou on a ctuuit
the general pnr|)ose!
iip.'jyment by defendai
raised by them. I'le
real projierty not ae
occupied by the owiu
defendants) ami (J.
ill capitalizing the
tytiiero foi' the yeai-,
I at ton instead (if six
lavi-, anil apportionac
reral iiuniieip.ilities, wli
ittcil from the e.ipitali
' value of the i-atable
aiiinmit directed to
mcoiisly and illegally
iiirrer, a good defe'iee, I
contrary to the st.il
mI the defendants' ai
precluded from (d>jeet;
M only create a debt by
Held, also, that it
the by-law, for the (
might decline to do tlin
[deny tlie defendants' i-i
Bity on any legal ground
pc Coiiiiii/ of Lhii-ohi v.
^omioj Xiiiiiiini, 2.") ()."
Held, that the (uiiissioii of assessors to retai
their roll by the 1st of May is not an iiuliotalij
oll'enct^ uikIcv see. l7o of the .Asscs.smcnt Act,
Vict. c. 3(), (•., .'uid that if it were tlic t
.•issossors would nut be jointlv liable. ll'i(m\
Siihlir il III., 23 C. \\ 330.
j l\'. Iv^iAi.iZA'i'ioN ry i;An;s
Upiin MU application to (juash a by-law jnipJ
iiig a county rate, for disregard of the dircctiJ
of sec. 70, C. S. U. ('. e. Tm, as to equal"
the ratt^s ; Meld, that except jicrliaps whenj
dishonest intention m\ the part of the cfliiiifi|
i clearly shewn, (which was not the case ha|
I the court have no authority to over-nilci
j valuation (Ui the ground of its alleged luitaill
j unc(jiial ell'ect. Remarks as to the proper d
I of jiroeeeding under the above section.
I court refused a mandanms commanding
i council to proceed as directed by the act, i
I was not clear that they had not complied a
it by their by-law. (lihson and Tlie<-Wim«\
of llimm and Bruce, 20 Q. B. 111.
.les, to form the basis foi
lization for county pur
!s. 71 of the Assessment
, e value of the municipii
jiMt revised as.sessnient
IB the power of county cf
htion. The Miniirijut/if
V. l^lii' Coil,,/,/ „f
l-<'. a-AViisn„.
|eld,iuequalizing the rolls
I IS recognised by .S2 \
teen town and village i.r,
^y, that as the valuatioi
Wniy reduced by two-fi
»»ntycnmicilistoincrea
^te valuations of towm
jes, as the rolls st-ind, a.ir equalization
' ■ n
i^i
ASSESSMENT AND TAXES.
220
Where the cuitnty council, in ui|U:ili/injj thu
jgiiieiitg umlertlmt Huctioii, lii,(l intentionally
iijj^li^juil the iKirHoniil iiropi'rty in towns uml
lllrtUeH i»t ten \yjv cunt., inatead of Hix, contrary
I the exjU'OBg direction in xection H'2, thu ccnirt
rfuwl to iiuiwh tho liy-law on motion, tliough
L^. j|itiinutuccn, and so (in
iect) that the amount shewn liy the last revised
leaauieiit rolls, followed in tiic by-law, was
roiiu : but,- -Held, that on this apiilication the
nrt clearly could not go liuliind t"iu rolls.
tto)'(l ii»'l '1'^"' (''>i'"'"'ii "J IJifiihi, 'Jt Q. |{.
iDet'laratiim on a county by-law to levy money
k the general purposes of the year, alluging
ii-uivmcnt by defuiulants of the proportion to
wised by them. Plea, tliat in ea]iitali/,iiig
1 real property not actually rented Itut held
[occupied by the owners in the towns of N.
e defendants) ami O. and tiie village of I).,
1 in capitalizing the ratable personal jiro-
rtv there for the year, tlie plaintitVs caiiital-
i'attcn instead of six per cent., as directed
J law, aii'l apportioned tlioreoii among the
beral mnnicipalities, whereby $1,000,000 was
Utteil from tlie capitalization, and tho aggre-
valiie of the ratable property in N., and
J amoHiit directed to l>u raised there, was
tocoHsly and illegally made up : Held, on
hnrrer, a good defe'icc, for sudi capitalization
contrary to the stitute, and tlioiigli it
ieneil tlie defendants' as.sessincnt they were
ecludod from (d)jecting, for the plaintift's
ill! only create a debt by coni))lying with the
[ Held, also, that it was unnecessary to
blithe by-law, for the court ^n their disere-
f might decline to do that, though they cfiuld
Ideny the defendants' right to contest their
ility on any legal ground. Tlic ('orjniftitUni
ft/i> Caiinlij uf Ijiiii'i'hi v. 77/'' ('orjiiird/iuii hi'
iTuintof'Xiii'i'ii'", -•') Q. B. oTS.
|elil, t\nt the aggregate value of muiiici-
ties, to form the basis f(n' the calculations for
totion for county purposes, under sub-s.
It. 71 of the Assessment Act, 32 Viet. c. .3(i,
le value of tho inunieipality as returned in
jbst revised assessment roll, and that it is
lin the power of county councils to vary such
Ution. The ifuiiin/iitlifi/ of the Tiiirit of
jv V. The Coinitii of ' Xdrfolk, ."> L. .1.
-('. C!.— "Wiisnn.
leU, in equalizing the rolls, although a diller-
1 is recognised by .S'2 Vict. c. 20, s. 71,
lieen town and village proiKjrty and county
rty, that as tho valuation of the former is
wily reduced by two-fifths, the duty of
tointy council is to increase or decrease the
igate valuations of townships, towns, and
^s, as the rolls stand, as well as to make
Istattttory reduction with respect to the
V-to«iiand village rolls being subject to
ation in the same way as townships.
ment of the mode of ' proceiUire adopted in
m the question for consideration in this
Miore the judge of the ('ounty Court under
1 3 of 8. 71. Remarks upon the difficulty,
; the present system of assessment, of
linj at ajair equalization of the assessment
13
rolls in ditl'ercnt townships. In re A/ipeitl/rwa
tlii- ('iiiinti/ diiitiieil uf till' (!i)tmly ul' Siiiirut; 5
L. .1. N. S, 2!)t. -C.C. (lowaii.
\'. .Ai'i-nvi. TO Col- itr OK IIkvihion AND County
.kiMiK.
Under 10 \'ict., c. 182. ss. 20 ami 28, the de-
cision of ii ( '. (', judge is final only as to such
matters as are to l)u submitted to him, that is,
as to any alleged overcharge, or the wrongful
insertion or omission of any person's name, not
as ty tlu^ ('dui'tut' ItuviHimi
and county judgu, it wah llulil, on iluiiiurriT, in
I'upluvin for goodH diHtniinud, that tliu dufitet of
want of juriHdiction wiih not ciirod. .Y/V/'A- v,
Jhiiijhtu, y. H. K. 'r. 1874, not yut I'l'iiorti'ii.
Held, that n inuniciiiivl counuil hat no iiutho
rity to place nivnicH on the uMHcHHUicnt roll after
it is tiually ptuiHud )>y tlie revising triliunul. Iti-
uliiatje rel. Clhif v. I'/ilitiiii, 7 L. •'. Ml < '. <'.
Mackenzie.
A county council, on a iietition for a revision
■of aagesHUient untler '24 \ict., c. US, without
hearing the petitioner furtiier than reading liiH
petition, dianiiiiHed it : Held, that tiie diHmis»al
of the petition wan a HutKcient decitiioii to war-
rant an appeal to the C. <'. judge, hi /•'■ t/ic
Jiular of' the (.'. ('. of f'l'r/h innl ./. A. Iltiliiiinoii,
12 0. P. 25->.
The plaintiD'tt had for several years appealed
from the assesMinent of thfir property to the
Court of He vision, who had decided against tlieni
and from thence to the County CJourt Judge, who
hod reduced it one third, on tlie ground that a
large portion of their building wa.s occupied Ijy
the courts. In 1804, the same assessnient licing
repeated, they a])pealed to the ( 'ourt of Kevision,
who said they would consult the city solicitor,
and that the plaintiHs need not appear again.
The plaintitFs' solicitor wuh told i)y the clerk of
revision that no judgment had been given, and
found none iu the T)ook wlicre their ••■*'
the Assessment Act, the building could be
adde5 of the ('. S. U. C. c. 5.'). /tnpm\
'f'/ir Cniirl of /ifnu'niii of thv 'J'oirn of ('uriimll
(^ B. 28(!. ' ' ' '
All island forminu part of a inunicipiUity,
situated in no road division, and (leriviiiB,^
beiielit from the roads of the niuiiiciynJ
having iieen assessed for statute labmr, tif
owners appealed to the Court of ItcvinioiiaL
thence to the county judge, on the gidiimliJ
ovi'- assessment, and that the property wiwi,
lia1)le to statute labour. On an a])pliatiiiiij
stay proceedings before the judge : Helil, li^
thoug'i a ccmnty judge has authority to inLia
or reiluce an assessment, or to rectify oriiini
or oniissions from the roll, the (picstiiiii i
liability for statute labour is beyond \\u jiin
diction, .\ writ of ]iroliibition was atx'ordii
grant' ' 7'/ir Tomm/ii/) of IViilMiiKiluiiii v
Lwi;i /'■ 'III Co., 5 1'. I!. 27'!».— (ihaiiili. (;,,!(]
Power of the ( !ourt of Kevision toginnttit
!'or eitering appeals bevond that presoriljeijlj
the Assessment Act. Practice in appoiil cai
Notice of appeal, and necessity for sta_
grounds as caiwes and niiitters of ap|)eal. M
of c(miisel to be heard befcn-c Courts of lievij
and all other courts. /« tlw First /JirixiuiiOt^
ill l/ie Coiiiitii of Kli/ni, (> L. .1. N. S. '.'!)■), -(;(
-Hughes.
Tlie tlirec days allowed for service of nutietl
appeal from assessment, counts from the til
for the decision of each case by the tVnrtl
Revision, and not from the day tiie court cIm
/ii r,' /Joiniri/, 8 L. .1. N. ,•-'. lOS.CrJ
Macarow.
Hehl, that the clerk of the Division C'oiirl|
not bound under sec. (i3, sub-s. 3 of thcAi
mvnt Act, ;12 Vict. e. 3(5, O. , to receive an ap]
uiiU'; i the sum of $'2 be dejiosited witii likl
wiim ity for costs : that if so disposed he mayji
credit for the amount; and if he doesw.!
,i,_;peal is properly entered, and ouglit to !« W
by the county judge : that a complainant to I
C(Hirtof Revisicm is bound to ajipear ami snjf'
his ajipeal ; but if he fail to do so, the cmirtij
hear the complaint ex parte, aiul if theyi
the assessment the eoinplainant inayapp(
the judge. In re I'liin v. Town of /imiilfm
\j. J. N. S. 2«1.— C. C. -Jones.
See //( re A/ipral from t/ic ('oiinljiCoHtti
Simrw, 5 L. .1. N. S. 294, p. 22(i; iS'iicM
Vitii of Toronto, 12 C. P. 185, p. 218.
VI. Statute "IjABouit.
A party must perform lus statute labour i
called upon within the division of the tor"
AHSESHMENT AND TAXE8.
230
Wllil'll
•,'01
I A vr"\
at
Ml
li,. roHJilcH. 'I'li^ 1 \. Jtiiri iiiih, It (^,
rit'tiil' III liiiiil i'uiiiii>t liti i'iiiii|K'll('il til
itktuto laNitir in tin- towiiMliiii in wliiili tlic
liuH iinleHM liu in liininulf ifHidcnt tlifir.
,,'v.'/,.,r..». i>Q. ».-•■■«:<■
The nmnifiiiul cuuiu'il "f a village iiui iiniioHi'
uerfiiriiirtnoii (if Mtutiitti hiliour, nr ii tux in
thuri'iif. iinly iin tlnme inhabitivntri nut ntliui'-
MgeHHUil ill '■' /^'ii'i''<'iii V. 'I' /if Miiiilri/Mil
cJil, iimlt'i' in * 14 N'ii't. I'. (17, wIujio a mm-
leiitiiwMH sevuriil lots in tlu^ Miinn' tnwnHliip
ciiuiitv. tluit 111! in I'hargoiilili! with the nite of
"imutiition ustinuitoil with lefeienie to the
leiif Huoli lilts tteimrttt»ily, iiml ciinnut oliiini
lave tiiein ratml according to their aggregate
Till' ('iiiiiiil'i ('oiiijiiiiiil V. /loiriirJ, !l
uiiicipal ciiriiorationH, lunler !•_' N'ict. c. 81,
16\ict. c. 182, could not fix the coniinii-
tute lalioiir at a higher rate than
&1 per ilay. In ''' '/''' •""' ''''• Miiiiii'i/inli/i/
jc imiiiiciliality "' '^ town.ilii|i liy liy-law
itcil that any I'crmin lialde to perform statute
r wliii, after heing tluly notitied, Mliould
ictiir refiiHU to attend, hIiouIiI forfeit and
jg. f(ir every day he .should mo neglect or
mill the payment of such tine Hho\dd
ftmicli nurHon from the perfiirnianci! of the
re(|uire(l of him l»v the liy-law ; Held, not
iDiiit to compel commutation at a rate
ilinx '.'»• M. per tlay ; and that the hy-law
000(1. Ill ''■ /'I'liiii I'l'"'" "'"' '/"' Miiiiii'i-
nf YiiniioiUb, ir>Q. 15. 14.
lY-lttW ilireuting that the over.'. !M,), M. 40{), statute labour was imposed on all
persons assessed on the assessment-roll of a
to^^n, whether residents or iioii-reHidontii, and
tli:tt in the case of the latter the commutation
w.i; lixed by the statute at 2s, (id., no by-law
being necessary unless the municipality intended
to lix it at a higher or lower rate, /{oliitmon v.
'I'lir < 'iirjiiiiiitiiiii lit' till' '/'iiini lit' Stviilfut'il, 23
(I H. iMt.
See Till Tiiini-^liiji ui' Wiil-iiiniliiini v. The Luny
hi'tiil (Joiii/iiiiiit, 5 I'. U. •_•■'.), p. 228.
\'ll. ('iii.i.i-.cniiN OK Kaths.
I. /)'inliriis mill Silli;
A/i/iiiiiitiiii lit mill Aiilliiirlti/ of Colli'rto)'.] —
Held, that city and county councils cannot
legally pass a resolution under the 104tli see. of
the Act, ('. S. V, ( '. c, 5."», to continue the levy
and collection of unpaid taxes by distress after
the return of the collector's roll, and that such
roll must be returned at furthest by Ist March
in each year. Sitiifli v. Slnnr, 8 I.. J. 297. —
( '. ( '. Mackcn/ie.
Hehl, under (.'. S. I'. C. c. ,'>5, that after the
collector's roll for the year has been formally
returned the municipality cannot appoint any
one to collect the unpaid taxes by distress ; their
collection belongs to the treasurer. Ifolcuiiib v.
Slimr, 22 Q. B. 112.
In replevin defendant avowed, setting out the
assessment of certain taxes in the City of King-
ston for the years 1855 and 18.59, the delivery of
the collector's rolls to the collector for those
years, and their return by him, with the taxes
hereinafter mentioned appearing unpaid : that
the defendant was duly appointed by resolution
of the council, instead of the collector for those
years, to collect certain taxes remaining unpaid
after the return of said rolls : that certain per-
sons named were set down and assessed on the
said rolls as owner and occupant of certain real
projierty for a sum mentioned, pavment of which
was duly demanded by the collector for those
years ; and that at the said time when, Ac.,
(l)eing in 1801) the defendant took the goods in
(piestion as a distress for such taxes, the same
being in the plaintiff's possession on the premises
so assessed : — Held, on demurrer, tnat the
avowry shewed no defence, the council having
under the circumstances no authority to make
such appointment. The plaintiffs in answer to
the avowry pleaded several pleas, denying tl^
assessment of the several paiiiies as alleged, to
which the defendants replied, so far as it naght
be intended to rely on any error in said assess-
ments, that the collector's rolls for said years
were made out by the clerk from the assessment
roll as finally pttssed, and the assessments in
question correctly transcribed : — Held, on de-
, ! il
^'1
;:. , li
,.t: \i-&:
231
Af;,SKHSMENT AND TAXKS.
it
i
I
J
luurer, rciiliorttioii lnul. llnK'ninh v. Shun; 'li
q. u. ft-2.
Held, on uiipuiil liytlic cliiuf suiu.'i'iiiti'iukiit ol'
education, that ii oolltH.tor of H(.'lio(d tiixcH might
in 1S()1 oolluc'.t liy distivsH tiio tiixos for IS.")!!
and 18(10, not having made hi^ final rctnin of
HUcl tnxen as in arroar, ami licinL' still coilcctor ;
and— y«nilil'!, tluit in this case, tin.' iiiaintiH' who
iMini-'liviiied Ol tliL si'i/.iirc havinf; Km I to it I'V his
oWK uoudiict, till! procciMling siioiild in thi^ l>i\i-
siou Court liavc boon npiiold at all ovonts. < 'lihf
SH/H'rhi/i'iiili'iil , was extcudod by
oounuil, undor 18 \'iot.,
a scliooi tax in tiio city
liy l)y-law in Dt^uoiiilioi,
resolutions of tho city
:l, s. ;i, until tho Is't
August, ISrui, and again on tlio 22nil Oocomlior,
185(>, to tho. 1st March, IS.">7 : Hold, that tho
collector, who was tin; saiiio iiorson for Itoth
years, might distrain liotwocii tho 1st of August
andtlie'22ud Docouihor, I8."i(!, although mirosolu-
tiou extomling tho tiiiio was then in forco
McLuiiii, .1. diss. ; Xnrlirrri/ v. Sti/i/ims, l(i (,).
B. tin, followed in Mflirhlr v. iUivilluuii, S ('. I'.
Hold, no olijootion to a salo of laiul that tho
collector was lioiiiul liy tho act to uiako his re-
turn on the 14th of Deceinhor, hut delayed till
the 8tli of Aitril following, for that it was a
matter hotween him and tlio inunioiiial council,
which could not |nvjudico tho titU^ ; and as they
received the return without oltjcction, it nii^ht
he assumed that tliev had aiiiHiintod tiu! .Stli of
• ■ ■ Mrlhiiiill
,1 III.
1/.
Ajiril to iiiako it on
Doimlil, 24 ii. H. 74.
Defendant was duly aii|i(>iiitcd collectdr ui (ju'
municipality for the years 18«').");md IH(i(); Held,
following IS'owlterry /•. Ste]dicns, Hi (,). K 471,
(Jhicf Sniieriutendent of Schools r. Kariell, 21
Q. B. 441, and MoHride c. ({ardliain, 8('. I". 2<.H!,
that he had authority in I8(>() to distrain for the
tivxes of IS))."") upon tho owner of proini.ses duly
assessetl. Culiiiiiiii v. Kin; 27 <^ I!. •"•.
vSection I2(i of the assessment act, .'{2 N'ict. c,
3(), O., directs, that when the county treasurer is
satisfied that there is distress upon any lands ot
non-residents in arroar for ta.xes, ho siiall issue
a warrant under his hand and seal to the col-
lector of the municipality to levy. The war-
rant was tested "(iivcn undor my iiiind and
seal, being the corporate seal ;" and tiio seal
bore the same form, emblem, legend, &c., as
the county seal. The collector sold the i)lain-
tiff's goods under it, hut it was not shewn to
have been authorized by the county ctuinoil, nor
had they received the proceeds of tlio salo :
Held, that they were not liable in trespass or
trover. Siiiilir v. Tlif ('oriionitimi of lln Conii/i/
of FivHtfiwc, -M Q. B. 27.').
Demand. \ - Where several devisees and execu-
tors were rated to a school r.-vte in resjiect of the
property of their testator as ".lohn A. and
brothers," which entry ippearcd to have been
made at the instance of s uiio of them, and they
hatl received tho usual notice of assessment in
that form without aiipealing ; Held, that a de-
mand made by the collector on ".lolin A. "was
sulfioicnt to bind the othoiB. Aiiplnjitiili cl al.
V, araham, 7 C. V. 171,
Hold, that a statement and demand of tixrtl
art! nut a condition precedent to a distress in ({]( I
case of non-residents. Pilildi/iiiiri' v. Ilitkn- \\
V. v. If,7. '
((mo N. .S., tiio plaintill's son, was asucsswliul
18(18 as a I'rooholder for #4.'')0 on real cstiite, auk
$'2i)0 on personal propc^rty ; and was on tliecfl!.!
le»!tor's roll foreount;,' rate, !*!».7r» ; schools, iiyoj.l
townsliip rate, .T!i2.(i(> ; and dog tax, .yj.OO, iiunj
.ij!2l..'{7. Tho collector was not aware Ikiw nmclil
was fill' real and how much for(iorsoiial iirimertrf
and he ileniandod the taxes from the plaiiitilf t,!|
wlioiii N. S. had made an assignment in Aiimut,!
I8(>8. Tho plaintitV otlorod to pay him tiie Ujl
on the real estate , under 27 Vict., c. I!), asu
pied by the itlaiiititl', who had bd'oiiic teiiMt|
it on the hit of .\pril ot that year. Tlim't
wore placed upon the collector's roll, and inn
to satisfy them he seized the plaiiitiH's
I//II))/ iiiiii/liir /lit in tho same towiiMhi|i: -ft
that such seizure was unauthorized. WnivM
Cniilli'; 2.')Q. B. 177.
By agreement between the plaiiitill'a aiiil
Hric and Niagara Railway (.'oinpaiiy, tlic(i
tilTs were woi-king the latter railway with I
own engines and ears, and defendant its collei
seized the plaintiffs' car on such railwavj
taxes due by the lOric and Niagara Itjiilwayf
in respect of other land belonging to tliat (
pany : -Hehl, that such seizure wiu unanj
rized, for the car when taken was in the |
titl's' possession and their own pmiiertv.
Wrstini R. II'. Cii. v. RiiijirK, 2!l t^). B.''.'i;i.j
Held, that the goods of a lutnro (K'cii|
who took po.ssessiou of pri^mises after iLssi'ss
and was in possession before the return (
collector's roll, were liable to distress fori
.•issessed in respect of tho premises ^xm
previous occupier, and this altbongli thcr
were not at the time on the iroperty i
assessed. Amjlin v. Miii'm, 18 C. 1'. '"
I', owned n boiler and smoke piiie, whid
been crectcil in a building of which lie «■«
lessee. On the lOtli of Htjbriinry tlicywa
for cit^ taxes due by him, and bought t
iilaintiff; but the wiiolc purcluisc rmi
being paid, they were left in charge nf tl
chamb'-n-laiu. On the 23rd he aettkd their
AHSKssmfjNt ANI;
gd wnt, reiiioviiiif the ff„„,h on tli.. •>«!m i
i«y were Hoizo.r f„r a-iit ,| t ' h *''• ^''""
TAXE8.
234
fol.l. «l«o -that fl''*;. '"•''" t.".«"^'l'
ecoHBi-leml^ in tile to " '7';^ 7 ?'"*
lie sale oh the l»th of K-b n v / "'" ""^■''
■♦•'• U ( . Mnokeii/ie.
Held, tluit 11 plattiiii; lUiuliin.. -t... i-
H-rwithontfuHtenini w th It. ' i'"^' "" ^''"
work it, WUH « iitto II K" '"'*'•''«''''-•
A bailifl' haviiiir ji u-.ii.,.,,,,f r.
. distrain for t,to.s Mno";;,/'"" '''V'"'.'^''^'"'
rent to the preniiseH, HhiTo' A V '.'"''!•■' )'""!«,
tapn>pertyofhi«ow;"j;;,,Vi.S^^^
le wnouat diii!. Tlio hailitt' , ""^'^ "* t« l'ovij
mmg^ l-uirof I. Mci tlu 1 ^r^'^''' "«'«te.|
nch AfwL at the thn^t;;"^ :;?;':;:-'
^^r;^:atth:thn:s^:'^t1'^'"^'
order to, .80 them, In.t i S... /' ;?«;«""
;ri^."^;i;;;j"'t;^;];.-';-;l,t.uotTi.;;
iwii-kw, who v((l ill fi,., i, , ' "'"fe''''l to liiM
ray from home. The IfT''. '"'^^* •''•^ ""^"
^.Ithen.forthetaxeH t 'l '■'■'^'T' *''''* ''^■
en,, hut A. .Irove I e m a f .?'"'""' '"'"•''
«r the- hailitt' retiune 1 '?,•/"';' t "'''"■ ''">«
nn«renlevied.ita,,pe,;}.^,':.:^'^£t,^-;;"';''.
« belonifed to the Hou-in-l,t« I f"'?
, ."' " i'«rt of the Htai.h ,;.";." ; ^V'^
hm.. were in the n .r^sio;; ''r^' '^''''
.lelj.aei/.ure under Ui \' o , 's . ' A' '""'
It the fact« proved a. m nnte I ? '' "1 '"'"'
mv. hi,,,, 18 i), ,j ''.:;:."""'■•'' to a .h.stre,s«.
, A justilieation for taking ^^^'7'*--'«-
^••■sHury to allcT'e that n f ii^, "'""'^' " *«"'"e-
•" .' '^' lHM.1 oef^upii , S :!:.?«"'^'"t *•"-• value
«i";^l.e.l f,.„n, that of ila ;'''*' '"'''« •'•»«"•
;;■• t''"t they had no othe ,'';?■ '"'" '"""P^rty.
J legal authority for fj, . , -^ '- '"'•''tor hav-
f.KaheraLf;,.^^J':3
bxe«, .fintrained l,y his Llii f' h ^''■"''* ''"^'
Ihem with other sums n' ." "'" "'""""t
^n i^plevin :- -He Id 't' :'"l'i'^ ^•••ll...tahle.
^.^'ereneparable f,. t th il '''"r ^"^"^ •'''"■
Mnotiie. ^^.•../M-\y;c:/:ri;:'^r,';'
hi He .len.an,le, Ith a . V'"'-'"'""^ I
h" I8«8, and the a ii ' «• '"'^'«""'«nt
Ne tax on the red cS e .if r't I " ^ '
real property. T' ? ii' "^''•'"I't >n full for
• ■**■, and the plamtiff- ll,, .' ''"'""gee
Ubt he could rtrcie^^'f' 'i'f !««« -
f^ M'l the eourt would, f' ^"'' '^ «"« "-.t
»'fcHmount«e,3 .'r'r "'''*''">•
%, except the ,*2 .l.JtL T V*:*"""""^
«wable,andtheoM t ' '"'"' ^'"» s'lm
^"fcsfori Wth tie ro,r'w *'""'«''--l.
''•'"" ti.e eolleetor to .liitr in J''''^' " ^"'''•'"'t
•'^•."" l'i« hi(.,|« Hont t tl. : "•'■ *"*•"' ''"e l.y
''"'"*<='' ""t to hin. pi „*j L'';;;:'";^'"'. where /
«"'l'ut
t "-V iKdonpl to his H .. n pr- r^'.'.'« "'«*
the h.Hjse, r.,,twus then aJi,^' ^''" ''^'-•'» '"
r"'",'''"^''"<"l that iue..:-fl "",'""'"-•• T'"--
'"'"«'' l"= .lid ..ot nd 1 "■"'/'"■"'«**''«''.
tl"^". away, an.l thre hiVaf?'" '.'" >^ ''''"Ve
f"!'"<^theso,. in-hiw, who keot M "•"'''"'' '«l""«»" any
•''"'t«: Held, AlcLean r 'T''^''"!'."^ ''"thdefen-
'""'«'• KiViJt. c. 182 H V.'Vl ' i ^ t"«eizure
'i;-H...nte.l to a .listrel ' "l ''*' ^*''*'' P'^ve.l
Lcrefore were ent£e •t,> ^ . *''f ;^^«"'J«»t'«
, '•?■'•« "'ife'l.t perhapH he ahl^"- *-'''' **'?"«'' the
"f •''-■t.on for his unrlLona '" «""t''er form
hp- Hohinson. C. /. Xch'T '""S. Q"'«'«.
; this ca,se eo-ild h^hellH M 7 *'',*' "'"ector in
|v. /V,, ,«(;;\,;'g;'- 1'ewaHlial.le. AVal^"
='«■*- ■' /u« bailiff' lo'r ;'"«'r«"'l« for the
^^"'i;: .*u,Ht t e iS; ■■'"';- ";***"»««»"
" f' •'., 29!). -r (■ •• ,
Act. <-'. S. U. C. e. 55 .re »,?! ' i'^^^-nt
"wncrs oroeeupantM by n„','t'T "'J^^' b««"!ne
l^twcen the jnakin^ of t?- I * '"■ "'h^-win:,
return of the oollcctorW ""TT"^ J""' the
Held, ihr,* "thp Der,,,
tr.x«8," mentionca"in )gie.
The provision rel. 1'. f'.--A.
Wilson.
Replevin for liorses. I'Ica, justifying the
taking under a warrant for school taxes, and
alleging that they were deliveretl liy the collec-
tor to defendant, an innkeeper, to take care of
until the sale. Replication, setting' out facts to
shew the rate illegal, and averring that tlie
plaintiff after seizure of the goods, at the request
of the collector and trustees, gave his note for a
sum named, (not saying that it was the amount
due by him,) payable to bearer, which was
accepted in satisfaction of the taxes : that tlie
collector released the property seized, and said
note is still outstanding, and the plaintiff liable
upon it, and that the seizure in the plea men-
tioned was made afterwards : — Held, on demur-
rer, replication bad, for, I. The collector acting
umler a warrant legal on the face of it, would
not be liable in trespass or trover, imd therefore
not in this action, nor the defendant for taking
the horses from him to keep ; and, '2. Kven if
the note had been alleged to be for a sufficient
amount to pay the rate, yet the iniproi)er
acceptance of it by the tnistees would not pre-
vent them from afterwards distraining. Spry
V. MrKemie, 18 Q. B. 161. See the comments
on this case in Coleman v. Ken; 27 Q. B. 5,
and in Iladinff v. Mni/nlle, 21 C. P. 490.
Where lands, which had lujcn assessed as
non-resident, l^ecamc occupied and iisscsscd as
such :- -Held, not competent for the treasurer,
under soution 12()of 32 Vict. c. 36, O., to issue
his warrant to levy arrears accrued when tlie I
I lands were non-resident, the sees. Ill to ||;l
1 of the Act providing for that event. .S'/ii/i/fc-
\Slnbktl, 21 C. 1'. .518.
! Defendant held two rolls, each heaecifietl t() be for school rate was charged. %w\
r. McKenzic, 18 Q. B. 16.5, distinguished. (\\i
mini V. AV/v, 27 Q. B. .5.
The omission to set down the name in full of tlnl
person assessed was treated as immaterial. l\\
Where a cori)oratioii leased property to a t..
ant, taking a covenivnt to pay taxes, VuuKouaI
net, v., and Spragge, V. C., held, in the CVjuitj
of Appeal, dissenting from the judgment of tbtl
court, that though they might sue on the cove- 1
naiit to pay, they could not distrain. SrivijifA
('(ir/M)ru/i sued fur as a debt i
arsinarrear, and unl
; a sale of the landi
I the act. Macaulay,
ty of Bfrlin V. Grani/e,
I The decliiration stat(
1)1'128 was duly itssess
lie year ISiV), of which
lefciiiI'Hits, although sai
\t d, refused to jiay
Itot'ti los. TkI., ple.adi
(lexceptas to that sum,
ar did not deliver or t:
^tioii or office of defe
J amount at which th
r real property in th
Insliiiig the value of tlie
Id, aiulthe value of all
JDjierty .'-Held, a good
; '- 'mi V. O'rfii/ ((v*
.It IS ■ defence to an ai
Bilaiit ■< property was v
wage 1 a 'le of I,an,l in t
f the same year ; the <>
, is V appeal to the C(
kiMimlifi/ of Lonilin, y
'"■n
IV of December in tlia
' »'>y-lawof thecaiic
I that the collector shoul
yny, which lie liid :
] t" the coiiditi III. ■ ij,
^Wof |3,t If v:,.f .
>togivcalM,i.„, .js,;„
Ftofy. .^'d not so i,„„ei
lection of i!,otexe -'1 Ll
|liecnllector'ssuret. '-..."
•^' "«tc.«i of tlie town
j37
ASSESSMENT AND TAXES.
238
nch lau'ls. unless it be averred ami proved that
he owner liad personally or in writing infonned
he assessor that he owned the propertj-, and
Hesired to be assessed therefor ; and the oniis-
on to aver such request is not cured by defen-
int suffering judgment to go by default.
tmcipal'I'l of Berlin v. O'rnnif, 1 K. & A. 27!) ;
IC.P. 211.
The taxes due on lands of non-residents cannot
, j„g,i for as a debt until they have been Kve
larsinarrear, and until they cannot be reivlized
a sale of the lands in manner provided for
[the act. Macaulay, .1. diss. 7'lir }fiinlrijifil-
I of Berlin y. Grannc, 5 0. P. -211.
The declaration stated tliat a ta.x amounting
,£128 was duly iwsessed against defendants foi-
■ year IS.')*), of which they had due notice, yet
|.fpm1 q.
pr wei
itaml
aw
hatt
|orw(
ointin
Itotlil
Ik
Ihnttelj
lixsil
fcici*
...".it 18
linotl
nKctl
lefencc to an action for taxes that dc-
ito.t < property was rated higher than the
re \a 'le of land in tlie locality iis assessed
the same year ; the only remedy in s\ich a
j^ jg l,y appeal to the f'oiirtof Kuvision. T/ir
mfiimlilii Of' Loiiiloii V. '/'/('■ (Iriiil W'l'.ih'ni
ir,ro.,'i7'Q. B. -Ml.
(eld, that nc action on the (^asc will lie
Bust a eollect( r of tixvn for distraining the
idsof a Strang 3r without noccs.sity, upon the
atiou of tlure being goods enough of the
iidant in the warrant out of wliich the
hey conlii have l)een made. MrKlhcrmi v.
\m,'i I'. •!• 24 !•"-('. (!.--l{obinson.
rthe return of the collector's roll niunici-
ties must sue under ti <.
kiul hy collector of towi, ui|. rrtjs after (j
. IV., c. 2, and before tHc repe.'xl of ."> Will.
—Right (if action on. I'l Ia-hii v. Sliiuvr,
189.
I debt flu bond against th'i collector of a
Uip and iiis sureties lor nit paying o\er
lys eolk tetl in 184(), on (U- before the first
pay of December in that year, defendant
lahy law of the c.uncil passed in May,
Uliat the collector should pay his moneys
Brly, which lie did : Held, biul, as no
|er to the couditi ni. /inl';; v. Ih-iir, .") (^).
.tiOof 13&. 14 '■■<•*• . -. , (i7. -•eo-.'.iring the
?flr to give a Imii.h, ,is le'^uiiud oy by-law,
Rctory, ^'A not so in)i)erati /e as to make
pllection of L!'e t*xe, 'llegal where a liond
e collector's surelj !;?.d l>een given to the
iwr iiijtcrni of the town by its corporate
name, and no by-law had lieen passed by the
corporation under that section. Jiiidt v. I'fatI,
(i C. R .S()2.
Held, that the roll not being "certified under
the hand of the clerk," the collector was not
liable to the corporation for negligence in not
distraining on the goods of a party assessed.
Corporation of Vifiiitu v. Miirr, 9 L. .f. .SOI. — C.
C- -Hughes.
To an action against a surety for a collector
of taxes for moneys received and not paid over,
defendant pleaded that no roll properly certifietl
was received by the collector, bnt that he col-
lected the moneys wrongfully and without
authority. It appeared that a roll was delivered
to him signed by the clerk, but not otherwise
certified : Held, sufiicient authority. Defend-
ant also pleaded that the collector had not taken
the oath of office : -Held, that the proof of such
issue lay npou him. The Curpuratinii of' the Town-
shiiiof Wh'itltn V. Hijrr'Moii, 18 Q. R."603. See,
also, Miini'-i/i(ilili/ of Whitlnj v. FUtil, 9 C. P. 449.
The bond was taken to "The municipality of the
township of Whitby," and afterwards the town-
ship was divided by 20 \'ict. c. 11.3, into Whitby
and Kast Whitby : -Held, that tlie bond was
properly sued ujion in the name of the corpora-
tion of Whitby. Till' Vorporat'ioii of the Town-
ship of Whithi'i V. Iltirriwn, 18 Q. B. ()03.
The fivct that a collector of taxes received the
money without any roll having lieen delivered
to him, and without h.aving taken the oath of
office, forms no defence for Ins surety to an action
for not paying over such monej-. S. V. fh. 60<).
An extension of time for making the collec-
tion witb(Uit the surety's consent does not dis-
charge him, th.at being expressly allowed, and
ills lialiility rct-iincd, liy 18 Vict. c. 21. //*.
Tlic treasurer of a town by .autlnn-itv of the
corporation applied for a mandamus to the
collector, connnanding him to give an account in
writing for each of the seven years during which
he had held office of tl>o taxes rcm.aining due
on his n»lls, ami the ; i»8on why ho could not
collect the same, by inserting in each case the
words "non-resident." or "no property to dis-
train," and to make oath that the sums were
unpaid. Tlic court refused the writ, holding
that as there were other remedies provided,
under ss. 107, 170, 173, aiul 177 of the Assess-
ment .Act, ('. S. V. ('. c. .").■», it must at least be
shewn that they could not be used or would l)e
of no avail. In re Quin, 23 Q. R. 308.
One .\I. was a collector of a township for 1864.
and I8(>."). In .l.annary, I8()5, he was authorized
to continue the collection of the taxes for 1864,
until the 1st of May then next ; and in .January,
I8(>li, to continue the collectiim of taxes for the
townshi].) " so long as he slumld \vd recognized
by the nmnicipality of said township." He did
not return the rolls until April, I8(»7, when a
large sum of the taxes for each year apjHjared not
to bu accoinited for. < )n the 2nd of that month
the treasurer, under sec. 182 of the Assessment
Act of 1 8(>(>, under a resolution of the council,
demanded payment, and on the (ith he issued his
warrant to levy of the goods and lands of the col-
lector, under wliich the sheriff in May sold the
land in question :— Held, under V. 8. U. C. c.
TtTy, as amended by 27 Vict. c. 19, 8. 12, and
under the Assessment Act of 186H, that the
r "1
!l!
A- i !
•If i
ijO.
ASSESSMENT AND TAXES.
li
; *■
talc was uuautliirizod, and tliat the sheriff's
deed convey etl no title. Per Hiclia-'. ' liat there
was no sufficient distres.s on the lanu , mv\ Seni-
ble, also, that the land had "been dcscril>cd or
granted." Don d. lii-U \. l\iiiiinittri' I'f al., ,'{ (>.
S. 243; DoPiX. Kill y. (trr, T) (>. S. 4:«; Krrimi-
ton Dmnhic, 8 C. P. (>.">.
But not that the writ was in tliu siiuritl's
hands for the period required by law. Dur d.
McGUlU V. MrDoiiafi/, I Q. B. 432.
The surveyor genei-al made a return to tlie
treasurer of the l^ndoii District, lieaded thus :
"Township r)f Oorcheater, southarn division,
broken front concessions A and li, soutli part to
John Reilly, Jr., 100 acres, north part to Dudloy
McPhoe, 200. " The treasurer did not open his
account in accordance with this return, but
opened a separate account against " X. }. of lot 22
in broken front B. 100 acres," and icturncd it as
in arrear, upon which return it wa.s sold. It was
proved that the parties who hail paid tiixus on
the lot, having title to the whole 200 acres, liad
paid taxes on the whole, and not separately on
any part of it : — Held, that the sale of the north
half of lot 22, made in 1830, was void, because,
notwithstanding the return by the treasurer,
there was no arrear in fact su1)jecting tlie land to
sale. Doe d, Upfwr v. Kdimirilx, ,"> (^. B. r»!t4.
When the surveyor-genur.vl I'eturns a lot of
land as described for grant, proof that the land
was not in fact so descrilwd nnist be of a very
positive and attirmative kind ; tlie mere evidence
of a clerk in the surveyor-general's office that
he rinds no trace of it, will not do. I'crni v.
PoiBcll, 8 Q. B. 251.
Quwre, the effect of a lot having been erro-
neously returned as described for grant, and in
consequence of this error having been ivssesscd
and sold. Ih.
Under 59 Geo. III., c. 7, lands returned in the
surveyor general's schedule in June, 1820, were
liable to have taxes charged against them on the
ist of July following, which taxes for the first
year were to be then assessed for 1820, so that, I
if not paid, there would be eight yeai-s' taxes iil
arrear on the lat of January, 1828. ^iiiuh iaiij,|
having been solil under a warrant which descriij^l
the taxes on them as being in arrear framtlkl
Ist of July, 1820, to the 1st of July, 1828, tSl
sale was upheld ; for eight years' taxes wl
really due, the mist die in the time of commeii»|
ment was unimportant, andcoulil not vitiate tlnl
warrant. Dw d. Stain v. Smith. 9 Q. B, (j5j |
Defendant claimed under a sale _^
made in 18.39, but the only proof that any tujl
were imposed or in arrear was an extract froi|
the treasurer's Ijook, shewing that tlic taxes (i|
the lot liad been p.aid up to 1828 : — Held, in)n(f
Kcient. Miiuro v. (Ireij, 12 Q. B. G47.
Held, tliat the jury, on the evidence setoutL
this case, were w.arranted in finding tliat thtil
were no taxes in arrear f(u- five years. Ilurljm\
V. Homhcij, ~, V. P. 4()4.
Kjectment for village lot 4, sonth sidcof Cail
arine street, village of Ingei-soll, part of Ko, |
in In-oken front concession of N. Oxfonl
fondant claimed through asheritt"8salefortani]
It ajjpearod that the village comprised jtartjJ
two to vnships, called X. and W. Oxfoiil:]
\V. Oxford it contained a jiark lot 4, wbkln
sub-divided into village lots after the yciir l^jl
The trciiaurer's warrant tlated in .Fi'me,
contained two village lots 4 south of C'athi
street, one Itoing .stated as in arrear for 1
only, the other for 1854 5 and 18.58. Tbeshei^
sold both to different purchasers, anil convert
the one in dispute to tli' mrchaser a.s lieimrti
one charged witli throe years' taxes. I'ndtrH
facts .set out in the case, it was held tbati
warrant and evidence did not suthcieutly JeJ
this hit as the out! on which the three ye«
taxes were in arrear, or prove such arreara,«
tliat the sale was bad. 7 (cv/.v"/)./ v. KWoit^t
12 ( ". P. 217.
In ejectment upon a sale for taxes, iiiiuleniii
Iti Vict. c. 182:-JcM, That the trcisnj
jn'oducing Ilia official books, and shoningl
the lands wert; charged with the taxes wtent^
warrant issued, wa-s sufficient proof of their 1(
ing in arrear. (Jtiicre, whether the warraiitsl
would not sufHce. //
Ipayment oii the lot, wa
[treasHrcr had returned
^liei-ti v. Broini, 17
ilil, also, that such .sal
e tlie taxes had, in ;icc
|c. 3, Ijeen paid to the tre
Ihich the owner resided.
V prove payment of taxe
lew that the collector w
Isutiicieiit to shew that
Wicdged iis siicli. S'n
1 3i«.
mHiiniiltim v. Bi/jk/on, 2:
See next suli-lu
;). ■Snlf'.-i um/i'r.'i ]';,
le lot was duly advertise
VhJune, 1840, pursuant
Wie taxes had been paitl t
that, as the payment
anil not to the 'treasu
las not ai)plicable, ,^,^,1
|L Mimnml v. .]fatfJ,r.,o„
eland having been duly
nice with the 3 \'ict c
Ivalul notwithstaiiilini, li
^«i ora portion of tJit
gtaied to comply with
MwluiiaM v. Bowp, t)
Iv itf ■ ^' "'"■'^"' •■"^1^
r- '"•;!'. were confinned
f « "f that act the she
fMhei,laintiir:_Held
r.»"f set out in the '
f^iglityears taxes in arre
I 'hm, 183!), for the w
Iwaprev,^,,,^^,^^^^^^^
■♦"f^, 1828, though i J
l()
u
ASSESSMENT AND TAXES.
ler lli Vict. c. 182, must be beforuthe delivery
?li,„ treasurer's warrant ti> the slieritt'. A'r-////
':Li/n., 14Chy. 29.
When the first year's taxes luwl boeu iftipused
l,y.l:vw passed in July, 1852, and tiie e(d-
etov'sroH was not delivered until after August,
«•)• and the treasurer's warrant was dated
Ikii July 18''*' • —Meld, that the sale was invalid,
no taxes had been in arrear for live years.
bHHOCV. McPhfrMii, ISGhy. (i07.
[on the evidence sot out in this case, to sustain
iitle under a tax sale made in 1830, it was
Sd sufliciently shewn that the land had been
nmed hv the surveyor-general as deseribed
r patent. ^/"'"'•^ v. Vvivdn,, Q. B., H. T. 1874,
\ yet reported.
bee Huiniltoii v. McDonulil, 22 Q. B. 13(), p.
In. Jonc-i v. UaiiL of Upinr CdiKiila, 13 C'hy.
. 2.56.
•J. Silk aj'ti'i' Tii.wn I'u'ul.
Ilf :i writ has been issued for the sale ot land
^taxes but before sale under it, the taxes are
IL the sale is illegal and void. I loin- I'f it.r. v.
\dwI)hoii, M. T. (i Viet.
h'hers tlie taxes hail been [laid to the treasurer
the ilistrict, .and a recei]>t obtained, a subso-
mt sale by the sheritt', as for taxes, in eo)ise-
iceof the treasurer having omitted to credit
Ipaymeut on the lot, was held void, altliough
Itreasun'r had returned the lands as in ar-
Jf,/f,.s V. liroint, 17 V. V. 307.
leKl, also, that such sale was ecjualiy void,
e the taxes had, in accordance with !• (ieo.
|c, 3, lieen paid to the treasurer of the distnct
Ihicii the owner resided. /Ii.
J) prove payment of taxes it i.s not necessary
lew that tiie collector was duly appointed ;
Isutiicient to show that he acteil ani) A 30 Vicl.
c. .;.,', .■«. /,:;/, and the prexiuf A.ise^itinent Act, 3J
ficl. c. ,10. Ii. /.Ill, O.]
A sheriff's vendee bringing ejectment for land
sold under (leo. IV. c. 7 must prove that
there was no sufficient distress on the premises
to satisfy the arrears. Doe Bell v. Reanmore,
3 O. S. 243 ; Do, d. Mcailli.t v. McDonald, 1 Q.
B. 432.
Proof that there were some few pieces of wootl
and timlMjr that had been cut down by trespas-
aers and left by them on the lot to be prepared
for the market : — Held, not siitticient evidence
of distress. Doe d. I'oarll v. Borinon, 2 Q. B.
201.
AVhere the jury fouml that there was a suHi-
cient distress to satisfy the taxes, the court
rcfuscil a new trial, although it might be doubt-
ful Avhcthcr much too high a ViUuc had uot been
M
: !■■■ IS
m
■IT
i
243
ASSESSMENT AND TAXES.
■M
'1
r.i
put upon the distreHS. Due d. hurrll \. ('rtiiif,
•2 Q. B. 208.
Wliere taxen have accrued uixm the wlidle of
a lot while it is undivided, and a distress could
be made upon part, no ])nrtii>ii could be sold for
such taxes. Staft'urd v. WiHiniiin, 4 (}. B. 488.
Undyr !(» Vict. c. 18"i, the shuritt' lajght sell,
unless he had good reason to believe that there
was sufficient distress. A declai-ation, tliere-
fore, which charged hini with neglect of tluty in
sellinu when there were goods on the luntl to
distrani, but did not aver that he liad notice of
the goods being there, was held insufficient.
J-hlei/ V. Moujec-
tion, as the sheriff was not bound to search
then. Qu.'ure, whether in any case a search
could be required between the inception and
completion of the sale. Ilamilton fl. S. U. C. c. 55, and 16 Vict. c.
182, that it was not the duty of any officer, after
the return by the collector to the township trea-
surer, to search for distress upon the premises.
Allan V. FUhcv, 13 V. P. «3.
Held, also, that the neglect of the collector to
search for goods which with diligence he might
have found, and which would have satisfied the
taxes, did not invalidate the sale. //;.
Where land is assessed and taxes imposed, an
omission by the collector to demand and levy
the amount from property on the premises,
uiunot, since .32 Vict. c. 3(i, O., avoid the sale.
Utewart v. Tai/i/art, 22 C. P. 284.
See Street v. Fo.
The land in question in this case was nnlj
for its own arrears only, but was am
iuiotherlot, and the arrears charged agamstlj
renmirrrs
[?„\f «•"*<>. certain 8.alt
* 1839, were confirmed, ar
Jofthatact the sheriff in
blan.t.ff;_Held, that. ,
H' set out in the case, the
I ha;! clearly not lapsed
•^ the sale. Hamilt„„ y,
>We that it is sufficient
K'", ?'""'"'« annexe
J'Mhednle.s expressly i,
KQt.m,,f the warrant
ge^^hedule ,s not so i„e
F. — V- a. 0/8.
f ',■,**"?'"« the ju.lg
l.tethe_lGVict. c.^'isi
V. ■/^" ''« Q. K ()14.
the treasurer's warrant, dated in .func,
|, there appeared to be two village lots 4,
of Catliarine street, in arrear for taxes.
Iking in arrear for the year 18.''>4 only, the
irfor 1854, 5, and 8. The sheritT sold both,
jonly conveyed the one in dispute in this ac-
] to the purchaser : — Hehl, that the warrant
|not sufficiently define the lot to lie sold
longh the sheriff had assumed it to be the
'i question in this action), and that the sale
linvalid. Townxeml v. E/'iof, 12 ('. V. 217.
1 3 Vict. c. 4(5, certain sales for taxes maile in
', 1839, were confirmed, and under the provi-
I of that act the sheriff in 1842 conveyed to
plaintiff;— Held, that, under the circum-
les Bet out in the case, the warrant issued in
I had clearly not lapsed or Iwcome void
1 the sale. Ifaiiii/foii v. McDotinld, 22 efore "2nd," Ijeing strucK
through with a pen, while in the warrant that
word was written, and in the sheriff's deed it
was omitted : — Held, immaterial, for that the
j identity of the land sold with that on which the
tax was to be collected was sufficiently provcil.
' MrDoiiill ft ,tl. V. MrDoiniM, 24 Q. B. 74.
I A sale for taxes under a warrant issued with-
I out a seal : - Held, invalid. J/o/v/oh v. Qiifniifl,
2« g. B. :m.
I The warrant contained two dift'erent entries
I of the same lot for taxes due for two successive
1 years. The sheriff sold the lot for the first
year's taxes, tlien adjourned the sale in conse-
(juence of other lots ivniaining unsold, and at a
subseii'ient date sold the same lot for the second
year's taxes, to another i)arty : — Hehl, that the
warrant was wrong in entering the same lot
! twice, a.s if two separate properties, and that
I the sale was void ; tlic firat, because the sheriff
! did not .sell for all the taxes appearing to be
due ; the second, because, having previously, at
the .same sale and under the same warrant, sold
the land to one, he could not sell it again to
another. Srhiifj'ir el n.i; v. Luiidji, 20 C!. P. 487.
Held, tliat the 13 & 14 Vict. c. (>7, ss. 46 and
47, did not make the list of taxes directed to be
prepare (ieo. IV. c. 7, need not shew that all the
necessary formalities were attended to, such as
advertising, &c. l)o<' d. Bell v. On; 5 (). S.
4.33.
Held, under 13 and 14 Vict. c. 67, that a sale
would not l)e invalid for want of due advertise-
ment thei-eof in a newspaper published in the
ctninty where the lands are situated, as required
by sec. .'iO. .larrii* v. Brooke, 11 Q. B. 299.
But see IMI v. Hill, 22 Q. B. 578 ; 2 E. & A. 569.
The advei-tisement of sale not having been
inserted in a local newspaper in accordance with
16 Vict. c. 183 :— Held, that the sale was not
confirmed by siud statute. Semble, that the
statute being passed to give effect to a forfeiture,
I' , i''!
1/
t (feS
M
w.
-T— T
54T
ASSESSMENT AND TAXES.
m
a strict compliance with its tcnnn was necessary
to bar the rights of owners of land sold. WHIIiiiiim
V. Tai/lvr, IH C. V. 21 ».
The omission of the treasurer to iulvcrtiae the
list returned by him to the Court of Q. S., within
one month thereafter, and to advertise such lot
in the Olticial (Jazette, and imperfections in the
advertising : —Held, to be irregularities cured
by 6 Geo. IV. c. 7, a. 2'i, and by analogy to tiic
holding of the Courts in the cases of sales under
execution. Coffer v. Snthfi-laml, S/i'ini.i H al.
V. Jacipu'H ff ul., 18 C. P. Xu.
The sheriff's advertisements of the sale and
its postponement in the (Jazettc in tiiese casus
were held sutticient. Ih.
Semble, that the advertisement of a sale made
in 1855 was bad, for not specifying whether the
lands were patented or liehl under a lease or
license of occupaticm. .UrAifii' v. ('(irhi/, 30
Q. B. 349.
Held, in ejectment, tlnit a sale of laud for
taxes to defendant in ISUf), the only description
of which, in the Canada Gazette and in the
treasurer's warrant, was " Pt. of S. pt. Ill, Ist
con. Tay, 40 acres, .iS 12. !).")," couhl not l)e sup-
ported. (J rant V. (I'iimoKr, 21 C. P. 18.
Where a tax sale was advertised in the ( .'anatla
Gazette for thirteen successive weeks before sale,
but such thirteen weeks did not amount to
three calendar months from the date of the Hrst
publication, it was held that the irregularity did
not invalidate the sale. Connor v. JJouijUui, 15
Chy. 45(j, in appeal. Followed in MrLaiirli/ln
V. Pifim; 29 Q. B. 52().
SeeStrcci v. /■''>,'/»/, :V2 q. I?. IIO, \>. 2.")!).
10.
' roiiiliicf III sii/f.
liiijiropi
Defendants claimed title through one \V. Mu( '.
who claimed under a sale for taxes. ( )n the trial
it was proved that W. McC. olainicd the lot in
question at the sale for taxes ; and alleging that
his title was imperfect, he asked the audience not
to bid against him, which request they complied
with, and he became the piu'chaser thereof for
£4 or £5. The jury found that McC. 's state-
ment was false, and in consecpience he purchased
without competition : — Held, that the sheriff
having duly conveyed the land to McC., the
legal estate thereby passed, and if it was sought
to impeach the sheriff's deed for fraud, the case
must be taken into c((uity, where conq)lete
justice could be done to all parties concerned.
itaynea ct x.r. v. Croindr cf iil. 14 (A P. 111.
The lot was first put up on the lOtli nf April,
1839, when one M. offered to take 20 acres for
the sum to be levied, but afterwards he refused
to carry out the purchase ; and the sheriff in
July following i)ut up the whole l(»t, 200 acres.'
which M. then purchased for the same sum,
stating at the sale that he hal!>' v. Corh;/, .SO Q. B. .349. '
It wivs objecteil also that the land wjis snldfJ
taxes which had accrued for more than twemJ
years, and that the sale was adjourned illcirali,'!
thougli a large numl)er of bidders were iireseijl
Semble, that these objections could not lit juJ
ported. //(.
Where a persctn, in order to purchase _
at thesheritT''s sale, consented to renrcaentatia
which he knew to be nntrue, and which pi]
vented competition, and so was enabled to m
chiwe at less than the value, the sale was (letlinj
void. /•%// v. jUnrH; 8 Chy. 323.
By an arr.angement between sevtijlofL
parties bidding at the s.ale, it was .-tgreedtla
each should be allowed to bid oft' a whole lotSi
the taxes ilue upon it ; ami others, not parti
to this agreement, were prevented from hiddii
by reducing the (juantity to such a triHe as tol]
quite useless to the purchaser. Tlie landij
(jucstion, Haiti to be worth £500, was thus li
off for £2 12s. The court set aside tlie sale,^
without costs, it being shewn that tlie purchi
was not a party to the c(mibinatioii ooniijla
of. Ilciirii V. /ill menu, 8 Chy. 345.
Where at the sale a lot of land was solditj
trifling amount, as compared witli itsvahie,l|
reason of a combination among some of thef
sons attending the s.ale to prevent comiKtitH
and although it was not shewn tliat the [
chasei- was any party to such coinl)iimtion, «
he so acted as to prevent competition, the c
in setting aside such sale ordered the purclu
to pay the costs of the suit ; and the shd
having been joined as a defendant, was, i '
the circumstances, refused his costs. Dml
CUirk; 8 Chy. 3.58.
A., one of the sheriff's otHccrs, comlud
sale, at which he knocked down without I
coiniKitition to another officer of the sheriJil
wortli about £350, for less than £7 10s., m
lot was subsetjuently, with the assent of ll
sheiitt", entered in the sales book in tiie namj
A. to enable the person to whom it had b
knocked down to cheat his creditor. Upo
bill tiled to set aside the sheriff's deed, it \
shewn that by arrangement amongBt the [
attending the sale it was understood a lot il
be knocked down to each in turn, in pure
of which the sale in question was effected.
art act aside the sale
jsim to whom the
^luiiiijbuil v. Moiitoijt
[The shorilT's duty is
J lauds offered as hi
ladvaiitageof theowi
beriff so neglected hii
of land were kno
punts of taxes, in pui
that effect amongst th<
da were purchased \r
J with his knowledge,'
i bill Hied to set aside
Dilf, as against tin; s
It is not sufticien
i participate in such ar
Befit. II).
^tnty-fotir acres, wor
1 in 18.59 for £2 Is. !
I uf the bailiffs in tin
Although there '
[combination amongst t
^petition, still their cc
id to that o])iiiioii. The
(benl ('. Montague, 9 (
ness, 8 Chy. 345, set
^ ment of tlie amount w!
mired to redeem the li
interest since that t
jht be npiJied in jiart j)f
I upon a mortgage creat(
ichascr at the sale for
)«//, lOCby- 214.
\m at tlio .sale practi
pthe audience which eh
petition, and the lands
\ in the alwence of any
ion, granted relief to
the sale. Loifn- v. Ym
■eseveral cases where sali
Intimidation, or other u
ing fair competition, aj
fed in. Srholjiehl v. D;,\
here the owner of lam
! thereon for ten yeai-s,
'ntheyear, and suffered
Ito elajwe before taking ai
"iale:-Helil, that he wa
sfrom obtaining relief,
I been otherwise entitled'
[appealing on the cvi.i
Boned in the pleadings, t
jaies was a mortgagee o
L in dismissing a bill to
\ for undue practices at
limiiecessary to reserve 1:
■icliing the sale on the gi
"'ilied as mortgagee to i)u
foaiug liini to
ibeen otherwise entitled to it. //*.
I appealing on tlie evidence, though not
lioned in the pleadings, that tho purchaser
Wea was a mortgagee of the property : —
\ in dismissing a bill to set aside the pur-
^ for undue practices at the sale, that it
Immecessary to reserve liberty to tile a bill
iching the sale on the grounil that he was
ilitied as mortgagee to purchase for his own
it. Ik
See the next sub-head, 1 1.
11. Diitii of f^lwriff.
herifl' can and should ascertain, to a eer-
ient, the value of land sohl for taxes. He
tbe heard to say that he cannot tell wlie-
lit is worth £•_' I'is., or i;.")00. Jlcnr!/ v,
1*1, 8 Chy. 345.
kiheriff not having made himself acquainted
Ihe land, was unable to correct an erroneous
iinproasion among the audience as to the value
of a lot, in conseiiuence of which property worth
£400 was sold as if doubtfully worth £'20 : Held,
that such omission of duty by the sheriff' was
not a suthcieiit ground to disturb the sale to an
innocent purchaser. Loii'n' v, Slaiiiin; 10 Chy.
'2'2'2.
Semble, it is the duty of the sheriff, when he
sees the intention of the legislature thwartetl by
improper practices indulged in by the audience,
to declare to those guilty of them that he will
not continue the sale, but will postpone it until a
fair sale can be effected. Ifeiin/ v. Biiriiee^t,
8 Chy. 345 ; />« v. Vitiiiiii, 10 f^hy. 217.
; Held, that it would not Imj inferred that a sale
I which took place in November, was necessarily
affected by practices of the audience to prevent
I competition, which had been carried on at the
I sale in October precediinj, and from which this
I sale ill November was adjourned. /.'«/(> v. Stny-
)it-r, 10 Chy. 222.
(Jiuii'ro, whether a sheriff ought to peiniit a
whole lot or piece of land to be sold in the first
' instance, where the value is greatly dispropor-
tioiied to the taxes due, without adjoiTrnmg the
sale, or taking some ste])s to protect the interests
of tlie owner. Srlwllivld v. Dirkriinoii, 10 Chy.
22(>.
Quicrc, also, whether a sheriff is justified in
proceeding with a sale, when the audience evinces
a determination to purchase nothing but entire
h)ts, or .act in any other w.ay inconsistent with
a proper sale. /h.
Where less than the whole lot is sold, the
sheriff ahouhl ns ft ii/. v. JaeijiK'^ ft of., 18 C. P. 337.
It is competent for the purchaser to set up a
defence under the sheriff's certificate given at
the time of sale, notwithstanding he has given ft
up on receiving the invalid conveyance. Ih.
See Wdliaim v. Mr.CoU, 23 C. P. 189, p. 231,
Kiiiiuil" V- f^<'t, "to
be measured according to the statute in that
case made and provided, " the other as "twenty-
rive acres" of the lot, giving no further descrip-
tion : — Held, that the first deed was sufficient,
the second not. Fnt'^rr v. ^f(lftir^■ <•/ a/., 10,
Q. B. IJH). j
" Kighty-ninu acres of the south part of the
east half of lot numl)er twenty-five, in the :
second concession of the township of Charlotten-
burg": — Hold, insuflicieut, under l.S & 14 Vict. ;
c. 67, as containing no statement of boundaries.
McDonfU V. McDoniihl, 24 Q. B. 74. ^ !
A descrijjtion in the sheriff's deed of land sold \
under ti Geo. IV. c. 7, as "twenty-five acres of
lot 31, in the 12th concession of tlie township of
King": — Held, insuflicieut. Cui/Ici/ v. Ftmter,
26 Q. B. 405.
"75 acres of the front part of tlic went ^, of
lot No. 5, in the 1st concession of the townsliiii
of Winchester": — Held, suHicicnt, under 7 \Vill,
IV. c. 19. FmM,rv. IIV.< 21 ('. V. lUl.
AVhere a sheriff sold 18.H acres out of 200 for
taxes, and gave a certificate merely describing
the land sold as the west part of the lot, com-
prisine 185 acres, and no further intimation was
given ny the sheriff' of the portion of the lot he
was to convey until the deed was executed, the
sale was helrl invalid. Kiirii/j/.t v. Lolnnnl, 12
Chy. 320. This case was attirnicd in ajipcal. Sec
32 Q. B. 30, note.
Land sold for taxes under ( '. .S. IT. ( '. c. 55,
was descriljed in the iisscssment roll, advertise-
ments, and treasurer's warrant, as the south
part of the west half of lot 17, in the 0th con-
cession of Rawdon, 75 acres; and in the sheriff's
deed by metes and bounds : — Held, that ^iccord-
ing to Knaggs r. Ledyard, 12 Oby. 320, and
McDonell /-.McDonald, 24 Q. B. 74, such e
cured by 27 Vict. c. 10, s. 4, or by the 20 & .SO
Vict. c. .53 s. l.-)6, or .32 Vict. c. 30 s. I.'m, O.
Booth v. Gmhrooil, .32 Q. B. 23.
A certificate given for the portion of a lot sold
for taxes on the 12th November, 18t)7, under
29-30 Vict. c. 5.3, stated it to be the "one-
twenty-seventh part," without further describ-
ing it. The deed given on the 19th April, 1871,
described the laud oy metes an) Of/lfl- ClIMfM.
The deed of land sold for taxes may beigj
> )jy the sheriff to the assignee of the highest l.
der. Land which has not l>cen descrilxid bvi
surveyor-general is not liable to be sold fdrtuJ
Do<- (1. Bel/ V. On; 5 O. S. 433.
Where land was returned under 5!) (ieo.
c. 7, s. 12, as described for patent, it was L
for taxes, and having Ijeen regiilarly hoM thet
for, it was hehl that the sheriff's deed muttpi
vail .igainst a patent subsequently iasuedtotl
original nominee or his representative. Ciio^
V. J)iiliiiatif, 14 Q. B. 585; Ifi/ckiiiiinv. I'unU
tnihiini, ii C. 1'. 385.
QuH're as to tliu effect of a cctnveyaiice i
Hi Vict. c. 1S2. /ffirlxtiini v. Hoii^tliK/^ ' (' \
4»i4.
• Certain land was H(dd for taxes in 1830, i
(j (Ieo. IV., c. 7. but owing to the loss n.
certificate no deed was macTe by the sheriffm
1 8(i2. The 1 3 & 1 4 \' ict. c. (i(i, which was p
on the 1 0th of August, IS.W, .and came intofim
on the 1st of .Jitnuary, 1851, repealed the 6 (i
TV., except so far .as it might affect any ..
which had accrued and were due, or any rem
for the enforcement r>r recovery of the same]
Held, that this exception did not continueli
l)ower of the slicriff to convey, .ami there
that nothing ])aased by his deed. Bn/«iiM^
v. I fill, '2^ il B. 9«; followed in Co//«i- v., VbH
land ; Sfi'miM H ill, v. Jaiiiicn ef ('/., 18 V. f.l
But the purchaser may defend under I
sheriff's certificate given .at the time of i
notwithstivnding he has given it up on receii
the invalid conveyance, ('otter \. Suthn^
StemiKet al. v. Jrif/Hen eta/., 18 ('. P. XTi.
The 13 & 14 Vict. c. ()7, .allows three yeanl
redemption before the sheriff can convey.
w.a8 reiiealed l)y 1(> Vict. c. 182, M-liich eaiueiJ
force on the 1st of .January, 18.54, cxceptiij
far as it might affect "any rates or taxes off
present year," 18.5.3, "or any rates or I
which have accrued and are actually dne, orij
remedy for the enforcement or recovery oti
rates or taxes not otherwise provided for byi
.act." The plaintiff purchased under 13 tl
Vict., in 1852; so that he was not entitled f
conveyance until the act had been rei)ddj
Held, that as the exemption in the rept
clause gave no jiower to complete inchoate [j
ceedings, the sheriff could not convey, sltli
such a result was clearly not intende (ieo. IV. c. 7. The warrant relie
util ill 1837 to the t
Uckljiel,/ Y. J);ri-i„^„„,
Iti. /tetleiiip/ioH of Lm
ht and redemption by )
^« out .after the salc^
ii
ASSESSMENT AND TAXES.
2U
.1 in 1837 to tilt then HlieritI', M., wlmuuiMud
"lioW o^'mh in ISSt" ; tho ruturn stated the
to hr.ve been made in 1840 ; and M. executed
' (le<(i in IS-tl : -Hehl, clearly insutticient,
thf sftle »»'l ''*'®'' '^*''"*' '"*•'" '^y " person
r pf „jjice were pri«' facie unauth(jri/ed, and
"„,lj„t proved mi i-oceeilings taken hy M.
ich could lie regarded as an incejition of
cuti.)"- If there had been such proof, y- 1*' •*'''**•
ISemble, that a deed by tlie successor of the
Lriff wiio made the sale, is good under 'It
fvict. c. '.'S, s. 43. /I'-ll V. Mr/.H,„, 18 ('. I".
14 f^jfu-l i)f Mitrliiiiiirf I'liirhiu'iiiij.
•loperty subject to a mortgage, having Ijcen
jirwl to run into arrear for taxes, was offered
Mjale under the wild land assessment law,
I the mortgagee purchased and obtained the
from the slienfl. The mortgagee after-
^Is suetl the mortgagor for the mortgage
wy and interest, whereupon the niortgagoi'
laliillto restiain the action, asserting that
fgale discharged him from the mortgage
i The court refused the application, the
[It of nui-'l' purchase liy the mortgagee being
[renter than a ilecrec of foreclosure ; where,
;er a tiiial decree the mortgagee proceeds to
xe payment of the mortgage money, it will
I up the foreclosure : and, Senible, that after
jasiJe the mortgagor might have treated
EffioitBagee iW lial>le to be redeemed, and
I tileil nis bill for that purpose. Smart v.
\ 10 Cliy. '•!••
jthougli a mortgagee may as well as a
w purchase lands of which he is niort-
,, still, if he purchase as mortgagee, and
jt his interest in the land a giound tor being
led to purchase, he cannot set up his title
i obtained against the mortgagor s right to
Ip. Kellnv. MiK-Ufiii, 14Chy. •«).
iB(l lianng been sold for taxes, a party in-
6(1 therem as mortgagee applied to the
E of the sheriff to be allowed to purchase,
I ground of his having an interest in the
I and was iwrmitted to do so, his only
Utin the land l)einc as mortgagee : -Held,
he purchaser could not afterwards set up
tie in opposition to the mortgago>''s claim
«m. III.
hrbolfehlx. DH-inxon, lOChy. •22(), p. i-Ht.
|5. Recoftriiiij hack Piiirliuxn Moiitji.
Jere lands not assessable were improperly
ft taxes :— Held, that the purchaser could
»Yer back the money in an action ii'jainst
bunty. It did not appear in this ciise
p a conveyance had been executed to the
1 or not. Aunliit v. The Corporatioii of
Imlyii/'Siwrw, 22Q. B. 73.
^le X. p. 260.
10. Raleinpliou of Landx sold.
ncnt and redemption by a stranger before
"T it out after the sale will prevent the
, forfeiture, thougli done without the knowledge
; of the owner, liimltoii v. Itiilhin, 'i O. 8. 3on the 7th of t)cto-
)ier, 1840, and the numey was not paid to redeem
until the 8th of October, 1841 ;- Held, too late.
/'romf/ool V. Uii.*li, 12 C. I'. .')2.
The land was sold in Octfdier, 18ti0, for the
taxes of 1855, IStW, 1857, and 1859, under a
warrant date the Uttur pui'Moiiully, luiil hu
iuiuepta it, tha paymuiit iH, in ut|iiity, ull'uL'tiiul.
('nmefiiiiX. lUtriihiirl, UCliy. (Kil.
So if tlio slioriff'H voiidue vt'r))iilly u^il-c tn
aoL'upt |iayiiiuiit pcriMinally at a iliHtuiu'u frnni
tht) vuiiiity town, aixl the nwiici' urtH on tliix
agreement, thu dtliiT cannot aftvrwanlH, to tliu
owner's prejudice, n;(|uirc the nionuy to iw ]iai(l
for him to the treaHurur, ivfuNe to ifceive it hini-
Nelf when it \» too late to pay tliu truasiirur, ami
insist on liohling the lani( ax forfeited, I h.
Where Hiieh uii agreunieiit waH proved by a
cretlible witnesN, Imt there wuh eontradietory
evidence a,n to whetiiei' what took [>hiue anionnted
to an agreement, the eourt holding that thu pre-
sumption in a ease of doubt niuxt be in favour
of fair dealing and not of forfeiture, gave tlie
owner relief. Il>.
Hon Uuu/l,HI V. (.'iii'/Miiilliiiil III' tllf I'litliiK 'mill-
lifHof York inn/ /',!■/, •_>.-> g. \i '.'1, p. •-'((!.
17. < IhjfcHtiiin (.'urn/ />;/ Sliilii/n.
Ijuu-re, as to thu etfuut of a uonveyance under
sec. 65 of U) Viet. .■. 182. Iliir/iinirii v. lioiishcii,
7 C. P. 4«4.
A Hale under a warrant not Healed : Held,
invalid, and the defect not cured ))y 29 Vict.
0. 20. Miiiimi v. liiK-Aiii/, 2(» y. H. ."i.Sll.
An action of ejectment to ti'y the validity of
a. tax title having been begun l)efore 'Xi \'ict.
e. 2.S, ()., WOH pasHed, ti\e eourt, under sec. 4,
tleterminud tiie objections taken to tlie nale, in
order to nettle tlie ri>,'lit to costs, as if the act
had not been ijassed. MrAi/!r i-t ring himself
within the protection of sec. 1 , in cases where
he has paid eight years taxes charged on the
lands, Ui nrove that the taxes so paiooks, showing that such taxes had.
been chargetl and paid, is sufficient. I'ttd^r
that act any person claiming under the tax
purchaser may avail himself of the provisions of
the Act. Fraur v. Wrsi, 21 C. P. KJl.
Held, that sec. 155 of 32 Vict. c. .%, «)., does
not make valid a deed given in pursuance of a
sale for taxes where there were in fact no taxes
in arrear at the time of ""sale, but they hsul
been regularly paid, //a mi/ton v. tji/ii/efoii, 22
C. P. 53«,
A tax sale of land for more than was due, is
not rendered valid by 27 Vict. c. 19, s. 4. IVi/'-
liam V. Hal/, 15 Chy. 3,35.
Where two half lots were assessed separately,
a sale of the whole lot for the total amount was
held invalid, notwithstanding that act. //>.
Jn 1865 the land Wivs sold for six years taxes,
including 1858 ; for that year the safe could not
lie supported, and as there were not five ycora
due of any portion of the residue for which the
warrant issued, the whole sale was held bad — and
Held, follow ing Vokham ''. Hall, 15 (,'liy. 33,'J
1 that this defect was not cured by the 27 Vict
19. ». 4 : 29& :W Vict, c .'>3, s. 131, m'.ti Vn,,,
3li, N. l.'iO, <). lUit for that duciHion, Wijaon ji
I Would have iield otherwise. Ki/iulninjl, /,,,|
I A»/iiiritiii> Co. V. FiriiiiMiiii, 32 y. H. 2"tH. '
l«vnd Hold uniler ('. S. IJ. (.'. c. 5."), w-«i|k|
I .scribed in the asseHsment roll, advertiai'iii(||t.|
land treasurer's warrant, as the south pitrtdfi^l
• west half of lot 17 in the 9th concession of |>„f
I don, 75 acres, aiul in the Hheritf's deed l>ynirtj
jundlxiuuds: Held, insutlieieiit ; and, .Stmi^l
HUeh a tiefect would not l»e cured 27 \'ii t, i, 1)1
H. 4, or by the 29-30 Vict. e. 53, s. I,")(i, g, jl
Vict. C. .3ti, S. j.V), (>. liiinl/l V. fi'ii-iliriiijil %
i). n. 23.
It was objected that the descriptidii nf
land on the roll and in the warrant as the
and W. pt. S. 1^, 1(15 acres, and the N. (,
and W. pt. , S. A, Cm, was insufficient: and tin
the treasurer had improperly altered tlio rull
as to reduce the taxes by one half, ami nui
the desci'iption Htill more defective Imt HtUj
that these objections would be cured liythe]
Vict. c. 19, s. 4, and 29 * m Viet. ,■. :j J
131. //>.
'J'hc slKM'iirs iIcimI was given on tiie IDtJ
May, IS(>ur Richards, I
' ,U»lt, ./..anilStr
■bting), that 27 Vic
unu regards the p
taxes in ruH|)uc
I m arrear for live 1
I whore an occupied
jceiipiod. Hiinic of
: W, in Ajjpoal.
ilbjections to a sale
I were not shewn to
%\ hy the Q. .S. ,,ndoi
ritotutcs, and that
Ideni'o of the sheriff 's .
Belli, iindor thocviden
.c. .53, 8. \5*),().,a.ni
The 33 Vict. c. 2.3, s
e in favour of the sale,
1 Comlen, Q. B.
«d.
18. Othfr
L do of hinds maf <* •;»'' '"*'^'> •>" '""y Vf"^-^^'^
kliithoothor lirnnoh of liic awo. Cumiron v.
jiiAmV, 2 Chy. Cniainb. 340. -Mowut.
Ill«lcl iMjr UichariU, ('.■!., Wil»oii, .1., Mowftt,
\c ({ilt, J., an.l Strong, V.(J.. (lJrai«.r. (J.J ,
■btina), that 27 Viot. c. lit, h. 4. cures all
" ji regards the imrcliiwer at a tax Halo,
Iniv taxes in rospcct of tho land 8old had
I in arrear for tivo voars ; ami this rule ap-
whoro an occupied lot has boon asiiossed as
iceuiiietl. W'""'" "/ Turoiito v. Fannimj, 18
. nyi, i" Appeal.
Jbieetions to a sale made in ISHO, that tho
M wore not shewn to havo hocn nroporly im-
Klhy tho Q. S. under .W (ioo. 111. c. 7, and
riUtutcs, and that there was no sulHciont
Jem-oof the sheriff's advertiscnioiits of sale;
K|,4 under tho evidence, to ho oured })y 29-30
Tc 83. s- 15«,0.,and.S2 Vict. c. 3(1, s. 155,
The 33 Vict, c 2.3, s. 2, ()., was also appli-
b in favour of the sale, under tho facts proved.
V, Voimkn, Q. B. H. T., 1874, not yot
18. Oihet- Ca»M.
„,(! ()( lands made before tho 8 Vict. c. 22,
! district of Colborno tor arrears of taxes,
lof which had accrued duo before the divi-
i of the district of Newcastle, (of which
lome was formerly a part) , is legal. McTjcan,
Idiu. Doe d. Tlu- Earl of Mountcashel v.
\t 4Q. B. 23; followed in Cotter v. Huther-
18 1*. 337' '^60 also CanwUt Permanent
,i,'t,l, 24 Q. H. 74.
It is not ncci'HHary tha^ the triiasiirer should
keep his acL'i.untM of taxes due accMinling to tha
Htatiito in order to validate the sale. I'olirr v.
Siithirtiind—Steiyna et at, v. Jadiuea et al., 18 C.
I'. .•{57.
Per A. Wilson, J. — Tax statutes should not
lio ooiiHtrued as statutcii creating a forfuituro,
but ratiicr in tlio sauio manner as statutes by
which landH arc sold uiidor oxocution for debt,
and the same rules which apply to sales under
oxocution MJiould govern tax sales. lb.
Per A. Wilson, .1. —.Strict proof Hh(>nld Ihj
^iven as to the legality of the tax and its actual
nnposition, but in matters concerning its collc.;-
tion unnoco.>(sary or unreasonable rigor in carrying
out the clauNOMof tho statute shouhlnot l>eexaote(i
from tho otficialu entrusted therewith If).
Considerations as to what reiiuirouients of tho
tax Acts aro imperative, and what are merely
directory. //».
It is competent to sell tho whole of a lot for
taxes, and tho court will not presume .against a
!talo on the supposition that too nmch land was
for a small amount.
',r
sold
/h.
Sales for taxes made after tho return day of
the writ to sell, arc v.ilid. /t>.
When taxes are in fact imposed on patented
lands, :ind no return of the surveyor-general of
tho land having been granted i ii be found or
proved, such return maybe prc-tumod. Il>,
When, owing to laud 1>cing patented in July,
taxes aro charged thereon only for half a year,
yot that is in ell'cct a tax.ation for tho whole of
the fiscal year, ami so long as the patent issues
before the .assessment is ('oni])lctcd, taxes for tho
whole of tho year wherein such pntont issues
may bo properly imixiscd, and the lands sold
therefor if unpaid. Ih.
A designation in tho treasurer's list furnished
under 32 Vict. c. 30, as "the N. or W i U = "—
Hehl, sullicicut. Stnourt v. Tiiiart, 22 0. P.
284.
It is not necessary at a sale of land for taxes
to doscriln) particularly the portion of the land
to 1)0 sold, and therefore a s.ale of "80 acres" of
a p.articular lot was held sufliciont. Ih,
The party .assessed may become the purchaser
of tho land sold for taxes. lb.
The treasurer's list, under sees. 110 and 131
of 32 Vict. c. 30, O., is sutftciontly furnished at
any time during tho month of February, lb.
This list need not contain tho amount in
arrear. //*.
The county treasurer is not at liberty to
bucome a purchaser. In re Cameron, 14 Chy.
012. See, also, Tmld v. Werri/, 15 Q. B. 614.
}{cld, that the plaintiffs in this case, claiming
against tho sole, were not l)oun7 that tliore was no proof of want of i;
2C1
ASSESSMENT AND TAXES.
2G2
The plaintiff having remitted money through .
the county treasnrcr to pay taxes supposed to
be line hy '''"' "" unpatented lands in that
county, on the terms stated in his letter (as
•hewn in the statement of case) : -Held, that
the circumstances created the treasurer the
tUintiff's ag'jut, and that the payment as made
Ivasa voluntary one with a full knowledge of
Lvp i^is and conld not be recovered back.
btrietv. 0;un(y of LamhtoH, 12 0. V. 2fl4.
Held, that the Crown could not be prejudiced
ji its right to recover l)ack taxes paid on land
beld on behalf of Her Majesty, by the mistake
i the officer in charge in paying them. The
Principal Secretary of Sfale for War v. VVic
yporatm oflh- City of Loudon, 23 Q. B. 476.
Where lands were sold for taxes, anrl within
year the owner paid under protest to tlie
ounty treasurer the sum rctpiired to redeem
hem he having olijected to the .sale : — Held,
hat he could not recover this sum from the
louutyas money had and received, for under
M. 148 of C. S. U. C. c. 55 it was received, not
r his use, but for that of the purchaser ; and
J iiajTiient of redemption money, to deprive
• purchaser of his rights, must be unqualified.
wiLm v. The Corporal ion of tJn- Intitcil Coiin-
,of York ami Peef,2r^<.). li 21.
^The plaintiffs had for several years appealed
I the Court of Revision, who had decided
nst them, and from thence to the county
le, who had reduced it one-third, on the
mud that a large portion of tlieir building
J! occupied by the courts. In 1804, the same
iesament being repeated, they ."ippealed to the
prt of Rerision, who sai. The plaintiff, on appli-
1 to the county trcasurerj ascertained the
lilt due and paid it, stating that he did so
t protest and |without prejudice to bis
B; but no denuuid had been made, nor any
lore exercised or threatened to compel such
W ;— Held, that the money so paid could
K rc'Mvered back, lieujawin v. Tin' Cor-
mvflheComity of Elgin, 20 Q. B. (160.
Bphiiitiff, to prevent his lands from being
[or taxes as non-resident lauds, paid under
waim
protest to the sheriff the sum claimed, including
costs, and then sued the county to recover back
part of tile amount, consisting of commutation
of statute labour, which he dis]mted :— Held,
that he could not recover, for the sheriff" was not
the agent of defendants, and there was nothing
to shew that he had paid it over to their trea-
surer. 'J'ho non-resident land fund is so far the
property of the county, that they may be liable
for it in such an action, Roberlison v. Tlie Cor-
poration of till' County of WeHinylon,27 Q. B. 33(i.
See P
Covpor
P ',,rljml Seeretarij of State for
ation of Toronto, 22 Q. B. 551, p.
See TX. 15, p. 253.
War V.
223.
Xr. NoN-Rr,.siDKN-T Land Vvsn.
Moneys in the hands of the sheriff" arising
from a sale of non-resident lands for taxes pur-
suant to see. 137 of C S. U. C. c. 5.'), under a
warrant directed to him pursuant to sec. 124,
cannot 1>e attaclied at the instance of creditors
of the corporation of the county in which the
lands are situate, as being a debt due from tho
sheriff' to the cori)oration of the county. Wilnon
et at. V. 7'/«- Corporation (f the United Counties
ff Jliiron and liriiee, 8 L. J. ISO.— C. L. Chamb.
— J) rape r.
Held, that all moneys received by the county
treasurer from non-resident land tax, either from
the owners or from the proceeds of tax sales,
do not become in his bands the moneys of any
particular municipalities, so as to entitle them
to sue him at once as for their moneys, but that
sucli funds must be considered as belonging to
the county council, whose duty it is to appro-
priate them as by law directed ; and therefore : —
Held, that an action for money had and received
would not lie against the treasurer, at the suit
of a township municipality, for moneys paid
over by him, before such appropriatif)n, to the
township reeve, who had misapplied them,
(^uicre, whether an action would lie against the
treasurer in any case for non-payment, or
whether he could discharge himself by payment
to the reeve. Carporation of the Townsliiji of
yotli'iraKOifu V. Jioi/,s, 21 C. r. 100.
Sums were credited by the treasurer of a
countj' in the corj)oration books to certain town-
ships, in respect of the non-resident land fund.
Vortions thereof were paid over to the town-
ships, and other .sums were in the same books
(diarged against one of the townships which the
township considered itself not chargeable with.
The treasurer's books, containing these entries,
were audited and approved by the county
council, l)ut no liy-law had been passed by tho
county council a^ipropriating the fund : — Held,
that the townships had no relief in equity,
Thr Corporation of the United ToienHhips of Meira
and ]{ama v. '/'/((■ Corporation of the County of
Ontario, 13 Chy. 347.
See lioliirtnon v. Corporation of the County of
Williiajton, 21 Q. B. 3.3G, supra. "
XII. Miscellaneous Cases.
Under s. 18 of 1 Vict., c. 21, a collector of rates
who had not psiid over the amount collected by
him and settled his accounts with the treasurer
on or before the third Monday in December of tho
.'I'M
r, ■ ,»■
^■-v
Si
. ^1
i^
! 1
263
ASSUMPSIT.
H,
i|,j^:
hi.
h^
1 ' ,
year for which he had been serving, was ineligible
to any township office, liegina v. lii/an, (i Q.
B. 296.
Moneys paid jby the owners of land sold for
taxes within one year from the day of sale, as
redemption money to the county treasurer for
the use and benefit of the purchaser, and l)anke - •
I III. ExAMixATioff OF Judgment Debtor.
1. Affidavit for Order, 273.
2. Other Cases, 273.
IV. Practice.
1. Affidavit for Order to Attach "-^
2. Costs, 274. '"
3. Other Cases, 274.
V. DiRECTiNo Issue to be Tried, 276.
IVI. Prioritv of Judgment Cred'itor.s, 276.
WW. Operation and Effect op 2''6
IlII. Payment by Garnishee, 277.
llX. Rights of Garnishee, 278.
JX. Miscellaneous Cases 278
IXI. Absconding Debtor _ v^.. \
I Debtor. '^'' Absconding
ttl. In I>'visioN;JouRT-,Se.Divi.sioN Court.
ATTACHMENT OP DEBTS.
266
i"2rortS'*fr"S" "^ *''«,c— „
refuse,! to interfere on Th^^"***'*"'' ,"'** """rt
company had no right t„mv^r"'* *•"** ^^^
«""'-t. //.. 55], note ^^ "-' """^^ '"*«
„,, "■*•— laylor. Secretary
court to grant a stop order pL- * ^f}'^'' t^**
2Chy. C^amb. in'-tylorfS^.^^f "•--.
|i7f;.1^r--^^' stone quarry. Uoon in ni-K-* / ^" *^"^''c
N. c. 14jtheXarWe'S'"i; ^V"''''-
H/ere directed to pay them Wr^'^"^''^
Jensation for iniurv o,^w^ ? . ^''^ »« »
llessees by the eSon ofi *' *** *^'""' »«
[bridge ovi the rfver Ifo fir^l •'''*"■
I one of them, being the^Jw "^ '*'■'''*'■*-
Wdtoa buildingii t ''f*^' ^'^'l
^andaUpriviletes^fn '".**'''^«* >»
. mai in the iLe, and ?Se rair"''^'"« «*"»«
I notified by the societv L? i"^*^ company
lie Common Pleas. Thn f^^ '' P*"' i*
King obtained ju.lgn int i/w.*""* '''■^•"■
N the claim, and Xdy-l? *'!!' *="'"•*-
^moneyoutof court „r"f ^ *""^«'l *"
hpany to pay it T-R^U S' ;'?. "''•'*''• «»
[nthe Common P eaf til "** ^}'^ """"^y
h, but that if thevl'ad • nl""'*.™"''! ""*
fe=a.-^rH^-rsa
^547, ''lenrii v. /;,>„.;<( ,-< al..
j> t
tract, and the remaimlnr f a^ "'"'«^f * con-
by having the ^oTukljLt7T ^"^*""«^
•lobtor's hands :-Held thit 1 fi ■% *'*«cut>on
.not a debt! until thpl . ^ *'"« ^a"cr was
attaching ^rdS J t!, Tvf"^ was m^,, „,j «^
) Toronto, 3 P. l{. ]si.l!c P ^<"yo»'«'«OM o/"
A verdict amiiiaf ■„„ ;
«nli.p.idated .Iam^e\^Ven TltT "' r'"P'"'y ^or
agmnst, and wluclf tU comni''"^ ?°* '""^^'^
t" pay without entry of ^^?"^'^'''^ promised
attacfied until it becmne i fe"!!*' ?*"«»* bo
become debts. A o^/^V^'J'^ ^'»ch alone they
P- R- 282.-P. C.-RaSj ^"•i"'"'' V. J,ees,
.J be claim of a debtor f„
misrepresentations of Sii •'^'^'Tf'?"**'"" for
tent of land, is not lia&o f ?', '" ?'^ta"»ng a pa-
or se,,uestered, befUe the 1 ' T"^' ''"^^bed,
by decree or otherwise V^"*","* " efore suit the plaintiff assign-
ed the claim to one fJ. : that one H. recover*
judgment against fJ., and obtained anonicfi.
attacii all debts owing by defendants to G t|
answci' said judgment, and this debt then IJ
came bound in defendants' hands to answer tJ
judgment. Plea held bad, the debt not ben
attachable as by law due to O. Arthur \ Ok,,
H at., 17 Q. B. 302. '
.1 udgment was recovered by B. & On. ^ _
defendant, against whom the plain tiflFafterwu
likewise recovered judgment. B. & Co.
and the plaintiff afterwards put a fi. fa. j™
defendant's goods into the hands of the shertl
who returned the plaintifif's writ nulla bal
Plaintiff then obtained an order for defendarl
examination, and very shortly after being serrif
with it, defendant assigned his book ilt'ck J
counts, and claims to B. & Co. A/ewdavasiJ
the plaintiff obtained the usual order to attj
debts due to defendant, but no summons i
shewn calling on the garnishees to pay. l\
Co. appIiiMi to set aside the order : — Held tJ
they iiad no right to intervene in the cause j
that they could not raise the question oft
validity of the assignment to them on suckJ
application. Iti/tiiK/cr v. McDouyall, 10 fJ
.195.
Where the debt is claimed by a third paftij
assignee, there is no power to direct an issufl
try the validity of the alleged asaigmnent f J
V. Fullarlon, 3 P. K. 19.— C. P.
On 30th July, 1859, the garnishee execnwl
mortgage for ,C200 to the judgment dcbtor.i
six annual instalments of €33 6a. Sd.
About a month after this, he paid i;,")Oo..
count of the mortgage. An attaching onlern
obtained before the first instalment felliiue.ii
this on 29th June, 18()0, was foUoweil k(
order that the garnishee should pay to plak
£34 lis. 8d. in the following manner -t|
1.3s. 4d. on 30th July, 1861, and .€17 IS...
on 30th July, 18()2. An application w,i3b
to set aside these orders upon a suggestion.
the mortgage had been assigned ; hut it apM
ing that trie a.s3igninent, if any, was nwileM
the attaching order had been served, thei
cation failed. Wortl'iujlon v. Pnlen it i\
L. J. 48.— c;. L. Chanib.— Draper.
\Vliere it was made to appear that \
sought to be attached was boiiA fide assigne^l
fore t'io is.^uc of the garnishee order, tlie
was, on the joint application of tiie jnila^
debtor and his a.'-isigiice, set aside. Cyj
Clnrk; 8 L. J. 107.— C. f.. Chamh. -Drapa, [
AVliere the judgment debtor, after mai
general assignment for the benefit of ore
surrendered a life policy to the gp.inislieMlj
value, "the proceeds to be placed at liisc
on the principal and interest," due on si
gage l)y him on real estate, and held kyl
garnishees, and the ganiishees aeceiited tls J
render, but on terms different to those pro
it was held, in the absence of an assentlj
judgment debtor to the change in theli
that tlie proceeds of the jiidicy enalii ill
attached as a debt due or accruing due fial
garnishees to the judgment debtor. lii*\
V. (Jorvh; 1 L. J. N. S. 7<3.— C. L Chi "
Uichards.
An order to pay over was inadeiiiwij
mons of which the judgment debtor Ui''
It appeared, oi
der, that the debt
I order, of which
Ifore the summons
lich they did not ap;
Hr the money undt
I rescinded, with co
nt creditor, who wa
nt. Feryunon v. Ua
j|t was alleged, but he
the jnclgnient del
I made the assignmer
(judgment creditor c
I debt duly assigned
able, and the atta
_e ; and wliere the
ire that this answer
^cation by tlie judgi
Ji allowed the costs ii
tcaiilai/ V. Jlumball et i
Ic judgment debtor,
.tors, dehvered to t
iray ties, and gave t
ir on the garnishees fe
I therefor. Subseqnt
khees had notice of
»d with the attacliing
i, that the order in I
tors operated as an af
ttem, although there v
Igamishees, they not hi
■it of notice to alter thei
^-/n.SP. I{. 231.-C1
iFinichv. Lcwh, 16 (,
4. Other C
_J«< dui' hi/ or to T,
lloan Company held a
■iith power of sale for c
Ner it on the 22n-''moitgag.
PveforO.'s benefit,!?
W of suuli fi'aud. S\
Y'iljl'l'n-Vonuda, -2
If '^T-Jy " ^'''n'ishee
'■ %tl debt due by a J
,* tor. Bo;,,i V. Ly
l-lw.-Lhamlv~Dulton,
^
169
ATTACHMENT OF DEBTS.
270
It appeared, on motion to rescind snch
j',r that the debt had l)i!cn a»ij,'uud before
tooriler, of which the garnishees liad notice
Sore the summons was served oi them, to
Kichthey did not appear, an LWriitorn.]—A debt due to
a deceased defendant cannot be attached without
reviving the judgment against his personal repre-
sentatives, t'oninurriiit Bank v. Williamn, 5
li. d. 00. — C L. Chamb. — iJraper.
\n order upon executors to pay a simple con-
tract debt, pursuant to an attaching order, was
refused, on the groiuid that they might bo liable
on specialty delits, after sati8facti(m of which
they might liave no assets, and before satisfac-
tion of whicli tiiey (uight not to be ordered to
pay a simple contract del)t. The attaching order
was also at- the same time discharged. Ward v,
Vann', 10 L. J. 20!).— C. h. Chamb. —Draper.
'I'here is no power in the court or judge to order
or permit a suggestion to be entered of the death
of a garnishee, so as to legalize execution against
his executors or administrators. Ward v. \ ana;
3 P. R. 323. -Chandi.— Draper.
Tlie mere fact of a garnishee being an executor
is no ground for not ordering him to pay the
debt due by him as such executor to the judg-
ment creditor. Tiffann v. Bitlkn, 18 C. P. 91.
A debt due liy the garnishee to the judgment
debtor as executor is not garnishable. Macaulay
V. liiimbatl, 19 C. P. 284.
A debt due to an administrator as such cannot
1)0 attached to answer a debt due l)y him in his
private capacity. Bowman v. Bowman, 1 Ohy.
Uliamb. 172. — Spragge.
Money in tlie hands of an Aijcnl.] — May be at-
tached where the garnishee resides out of tho
jurisdiction. Brown v. Merrills, 3 L. J. 31.—
C. L. —Chamb. —Burns.
But not where the g.Trnisliee is a foreign cor-
poration, out of the jurisdiction, as the statute
only allows an agent to bo served with a writ of
summons fm- the purpose of commencing an
action. Lundi/ v. fJickmn, L. J. 92. — C. L.
Chamb. - Robinson ; Bank of British North
Ameriia v. [.aiiijhrci/, 2 L. J. N. S. 44. — C. L.
Chamb. — Morrison.
/\irtnir.ihi/> Dvhtx.] — Tliomas F. Park was a
menilier of two firms. Park & McLeod, and Park
k Park (Theodore, J.) I'ark & Park recovered
judgment against M. a judgment creditor of Park
& McLeo
out an affidant either of the plaintiff or his
attorney, stating the indebtedness of the gar-
nishee. Boyd V. Haynes, 5 P. R. 15. — Chamb.
— Hagarty.
2. Coats.
A judgment creditor was not allowed the coats
of a garmshee application, either against the judg-
ment debtor or the garnishee. Bank of Montreal
V. Yarrington, 3 L J. 185. — C. L. Chamb. —
Robinson.
But it is now the practice at law to grant such
costs where there is a sufficient fund out of
which to pay them, and this practice was con-
curred in m Chancery, reversing Evans v. Evans,
1 Chy. Chamb. 248. Evans v. Evans, 1 Chy.
Chamb. 303.— Full Court.
3. Other Cases.
Where the garnishee (a deputy sheriff) after
ten months applied to set aside an order to
pay, upon the ground that when the garnishing
order was made there was no such debt, and that
he, the garnishee, was ignorant of the nature
and effect of the proceedings taken against
him, the application was refused. Oordon v.
Bonier, 6 L. J. 112.— C. L. Ch^b.— McLean.
Held, that the judgment debtor is admissible
as a witness on behalf of the plaintiff in an
action under a garnishee order. Hutcheson v.
Allen, 9 L. J. 24. — Nisi Friua — Draper.
An attaching order had been served by leav-
ing a copy at the store and residence of the
garnishee. Service of a summons to pay over
' 4
i:-i;«
|N
il
l-EF
l! hir'>''
I
It;?':' ''
Ih
'Ml
U \
iv ;! i
275
ATTACHMENT OF DEBTS.
was accepted for him liy a practising attorney, ami
this summons, witli sucli acceptance eiKlorsed,
was afterwards served in tlie same way as tlie
order. On the return of it, another attorney
appeared for the garnislice, and c))>jccted that
the acceptance wiw without autiiority, and the
service insuthcient : - Held, tliat personal service
of the swnmons and order was not indispensahle.
The service if moveil against would li:ive been
insuthcient, as it was not shewn that personal
jjervige could not have been etfected, or that the
papers had come to the knowledge of the gar-
nishee ; but held, also, that no such application
having been made, the acceptance should be lichl
sufhcient, and that any defect in the service of
the attaching order was thus cured ;- Held,
also, that the appearance of tlie garnishee by
another attorney iluly authorized was a waiver
of any objection to the service. )('((/•'/ v. Vrnirc,
3 P. 11. 130.— Chand). -A. \Vil«on.
Adam Wilson, J., adhered to the above deci-
sion as to the service of the attaching order, and
held that the new attidavits set out rather tended
to sustain such service than otherwise. .V. (!. 3
P. R. 210.
' A summons to pay over having been opposed
the judge took time to consider, and before the
. order was granted the garnishee died. ( )n motion
• to rescind the order : — Held, that the delay
being that of the judge the order was not void,
biit might be amended and dated as of the day
of argument. Qmere, whether in strictness all
orders should not be thus dated. .S'. ('. 3 T*. H.
210.— Chamb.- A. Wilson.
Quoere, has not a judge a discretion, in the case
of an attachable debt, to decline under special
circumstances to make an order to pay over the
amount where such an order would be ineipiita-
ble, or tend to give one creditor a preference
after the making by the judgment del)tor of a
general assignment in favourof his creditors with-
out preference or priority. Ln' .— (A L. Chand). -Kichardtf.
23 Vict. c. 33, does not extend to the service
of attaching orders, but only applies to the
service of process, *c. /?anl: af lirilUh Xorth
America v. Jj(ui(jlmij, 2 f.,. .1. S'. S. 44. ('. L.
(jhamb. — Morrison.
Notice of an application to garnish .should
always be given to the judgment debtor ; but, —
Quiere, whether it can be imposed as a condition
on the judgment creditor, the statute not re.- C. I'.
The executor of the garnishee havinij on i||
davit denied the debt, and imputed coJlusi^l
between the judgment creditor and fleljiorl
which was not denied, the attaching order iril
rescinilcd, and an issue directed, on iiayincnt J
costs. H'nn/ \. |V(/(rc, 3 P. H. 210 ('biiil,,
A. Wilson.
A suit was pending between the juilgnai
debtor and the garnishees as to the i.l,aini smj
to be attached : — Quaere, as to the proiirktvd
directing an issue, and as to the proper inrKlj]
procedure. Bank af Toronto v. litirlun, 4 J
|{. r)6. — Chamb. — Hagarty.
A judge of the court will, when it appf
proper, instead of directing an issue, liimseu.
a question of fact arising on application kii
him in chambers. Jiol/ertxoii v. d'co/i/, ,3 (i]
Chamb. 331. —Strong.
VI. PllIOEITV OF JrnftMENT Crkditorj.
Although the plaintiff's judgment lie n\»
ijueiit to others registered as agiiiiLst thel
sold under a mortgage, still if he tiist att,
the surplus of proceeds of sale, he is entitldj
tlie exclusion of the prior judgment ereJiuj
.UcKa;/ v. Milrhrll, (I L. J. (il.- C. L. ('hamii]
Draper.
There is no priority in respect to delits Jitl
a judgment debtor, in favour of any jmlju
creditor. Ih.
Several judgment creditors proocuiling la
the same garnishee, are entitled in tliedrilal
which their attaching orders are served.!
ratably. Tato v. ('nrji'irniion of TiiMi\l\
H. 1.SI.-C'. 1'.
\'IT. Oi'Kit.vnoN AM) Kfi r.(T iif.
(>)u;i're, what effect has an attachin;,' unlal
the party's right to set oil'. Mf}\<:wjUii\
Weh^lir, () L. J. 17.— C. L. (Jliainl).-Dra[«
An attorney's lien for costs as ktwefflj
and his client, the judgment debtor, «f
be alloweil to stand in the way "f anatt
nieiit. Rv'/ina v. Bcn-wn, 2 1*. M :t.'iO.-(|J
B(uik of Upjiir CfiiKidn v. W'ltllnrr^ Ik"
Chamb. — Burns.
Upon the application of a solicitor, hari
lien in i-espect to a debt attached, the atti^
order will be discharged as against him ; bi
party against whom such an order has b«eiij
IS not entitled to its discharge tm the gr™''
the existence of the lien, in favourof his»
Cotton V. Vnnnittnrt, « P. li. 91). -Chy.
— Holmested, Rifcrce.
Declaration for work and materiab.
plea set up several attachment ordereobi
by judgment creditors of the plaintiff, t
n
I to «iic that it wa
Lboiild he at liberty
nt8;anii that the ol
defendant and ])Iaint
Thi' ('(ir/juriilii)n «,
V/II. Pavme
A garnishee! is not i
he judgment creditor
nlcr, without an ordi
mil heing served w
rthwitli j(,iy the nioi
thd; S L ,1. 107. —C
[It is no dofenee to
jaeliing orders Imve )
pt for the claim, or th:
ivit ovur. Thero nu
Uers, or execution lev
liriirkrilk iiiiil Ottiu
See, contra, Curr
f. L. C'hanih. Burns
,6 1. .). 17.- -C. L. (
IPefendant having a jn
ihers, obtained aii^ordei
Thee.s, to pay over, afte
Jm they might have.
lithis order .'*!17l, by e
Jin, the i)Iainti/l' alone
I'l estate. It was aftei
I order had been Un-
-refore rescinded, excepi
Bchthegarnisliees' adni
Tered, so that nothiiiL'
Jn paid .--Held, that
(over the 8171 from dei
1 received : -Held, also
jnient having been m;
intitfs hnn, eould not
JBe from recovering, as t
liave been the money of
■plamtiff's partners had
mnchan, 23 Q. B. 4'J2.
_» award for an amount,
ing been made in fiivoui
', ''■'■™' '^y consent, ai
'' to l)e paid to the .<^
wed to receive such costs
jsukeouently obtained
fr which the amount aw
Ppaid over to such third
^vor, of the solicitor's
prthese circumstances a
Jeedings to enforce pavme
|«ward, at tlie instanc
% were payable
JkLmi V. Beatlu,
iiKouglmet.
W«hioh liatl been mor
Men by the township ,
Pie compensation havin
pani the corporation paL
"wrot the mortifaMr bv
Htj that his mortgag
fj the laud with noti
I rtgagecw.^ entitled to
Ithe coloration with ,
1 oj }ork, 16 cj,y .,
I
11 n.'
1377
ATTACHMENT OF DEBTS.
278
'^^k, to one timt it wiw dircctod tliat tliu cioditor
-Wf ' 1,1 1,0 at lilwrty to proceed apiiist defend
^Ctij' »)>'! that the othew were duly served U]h,ii
^Kfei'icliuit and plaiiititl' : - f£eld, bad. May, h
- ■ ■'• "• ('l(ir,{' V
Efliwith nav the money into court. ('/(//•
K^y L .1 107."('. i'- <'hamb. -Draper
It is 110 defence to an action for a debt that
ttaeliing orders have been served upcui defend-
ht for the claim, or that he has l)een ordered to
r it over. There must be payment on such
Aprs or execution levied on defendant. Si/kn
Hi^'drille. (,). H.
See, contra, t'ltrr v. /ini/rriif'l, 4 I,. ■). •_'()<».
L. C'hainb. Hums ; MrS'iiiiii/itui; y. MV/i-
u'j^ ,1^ 17. -C I'. Chand).— Draper.
iTefemliint having a judgment against M. and
Hers, ohtained an order on ( '. and others, gar-
Eieeii, to pay over, after deductini' any contra
um they might have. 'J'he defendant received
ithis order sJlTl, by check of the plaintill"a
B the plaintill' alone being the assignee of
t'sest.itc. It was afterwards discovered that
I onler had been for too much, anil it was
^fore rescinded, except as to the pnjper sum,
Uch the garnishees' admitted set-off more than
lered, so that nothing in fact should have
^ pjid :_Held, that the plaintiff might
lover the 8171 from defendant as money hail
received : -Held, also, that the fact of the
nient having beeTi made by tlie check of
jitiff's rirni, could not prevent the plaintiff
je from recovering, as the money was proved
Rave been the money of C. 'a estate, in which
plaintiff's partners had no interest. SfuswiiK
'irachan, 23 Q. B. 492.
1 award for an amount, together "with costs,
fcng been made in favour of a party, the costs
taxed by consent, and the iimount pro-
to be paid to the solicitor of the party
ired to receive such costs. A garnishee order
subsequently obtained bv a third party,
jr whicn the amount awarded and the costs
i paid over to such third party, with notice,
Bver, of the solicitor's lien for the costs.
W these circumstances a motion made to stay
ledings to enforce payment of the costs under
lawaril, at the instance of the solicitor to
they were payable, was refused with
ikLcm V. Beattij, I C'hy. Chand). 138.
oKouglmct.
nd which hail been mortgaged by the owner
" ken by the township council for a road,
Ithe compensation having been ascertained
|rard, the corporation paid the anu)unt to a
»r of the mortgagor, by whom it had been
bd;— Held, that the mortgagee had the
[right ; that his mortgage being a registered
pge, the corporation must be taken to have
ired the laud with notice of it ; and that
lortgagce was entitled to recover the amount
[the corporation with costs. JJunlop v.
|tf 0/ York, 16 Chy. 216. See Frencli v.
Liicii, l(i Q. B. .")47, p. 2(j.") : Smilhy. TritM and
Loan CuiniMiiij, 22 (). B. 525, p. 269.
See liki-iii'i V. Maihleii, II C. V. 195, infra.
l.V. UKUirs OK Ctahmshek.
Where there lias been a previous understand-
ing tiiat the garnishee shouhl have a certain
period of credit, ho will not bo ordered to pay
until such period expires. ffariHiKi v. Barratt,
3 L. .1. 31. ('. L. Chand). Richards.
Action on a mortgage for JC309. Plea, non
est factum. Second count, on a judgment in
i). B. for 1)78. Third count, on a judgmont in
this court for tl28. To the last two counts
the defendant pleaded, on eijuitable grounds,
that the judgments were obtained on confessions
taken by plaintiff from defendant, while the
plaintiff was defendant's attorney, by fraud, and
given without consideration, and by undue in-
lluence ; and — after setting out two judgments
in the county court, amounting to £99, reco''c»<5d
against the ]ilaintilV, by CI. and M. respecUvely,
that*!, and M. Iiad each obtained an oi'der to
att;ichall debts dui^ to this plaintiff from defend-
ant to satisfy said judgment, and had issued ad.
fa. lands on which the sheriff had taken in execu-
tion lanils of ilofenilant, more than enough to
satisfy the said judgments recovered by them
respectively ; and that said judgments were in
full force anil unsatisfied, — the plea alleged that
the indebtedness on the judgments in the two
counts alleged (if any) due to the plaintiff had
been attached to satisfy the other judgments.
On demurrer held bad, 1. Because pleaded
in bar of the plaintitt"s whole cause of action
on the second and third counts, whereas it
only shewed a partial answer, if good as to
that. 2. That it diil not shew any order requir-
ing the garnishee to pay the judgment eredjtors.
3. For all that appeared on the pleas, the plain-
titl's in the two attachments might issue execution
and obtain satisfaction of their judgments against
the present plaintiff,, before defendant's lands
could be sold under the executions. Bkvihs'y.
Muihlen, 1 1 C. P. 195.
X. Miscellaneous Gases.
The garnishee was indebted to the Buffalo,
Brantford, andCodcrich H.W.Co., (the judgment
de})tors), on two negotiable bills accepted by him
and not yet due, and they, in order to induce R. ,
a creditor, to release a chattel mortgage which
he held against them, had promised to pay him
out of the proceeds of these bills ; there were also
other claims by some of the directors of the com-
pany, which were to be paid in the same way.
The judgmont creditors obtained a summons on
the garnishee to pay their claims, which was less
than the amount due on the bills, and M.,
another creditor, subsequently obtained an order
to attach the balance, but no summons had
issued u])on it. With the assent of the judgment
creditors, the judgment debtors, and the garni-
shee, M. bein'4 no party to the arrangement, tho
acceptances were handed into court, and after-
wards delivered to Z. on his paying in the money.
These facts were stated on the return of the
summons obtained by the judgment creditors,
and the judge in chambers was asked to deter-
mine what should be done with the surplus after
'i¥.
f,, ...IIP I "m
f
U. C. c. 19, 8. 160-SeeBM
KUPTCY AND iNSOLVRNfy,
10. Against Witnesses — See Evidence.
11. Against Memliers of Parliamnt-iA
Parliament.
12. Against Sheriff— See Sheriff.
13. For Non-iierformance of AwanU-iA
Arbitration and Award.
II. Practice on Moving for.
1. Service of Rule or Notice,^'2M.
2. Other Cases, 285.
III. Proceedings ox.
1. Setting Aside, or Motion fur Di«rkfji
(a) For Non-payment of CoMk, X \
(b) Purging Contempt, 287.
(c) 0(/t«r Cases, 287.
IV. Miscellaneous Cases, 289.
V^. Against Defendant in Ejectment m|
Resuming Posse.ssion— Se« EjEmwl
VI. Maliciously Is.suing Attacii.me.nt -
Malicious Arrest, &c.
he time of the dema
be execution of tlie
MeSherri/, « O. S.
Bat it was held (
tarry v. Butter, K.
«kn, T. T. 2 & 3.
. 3 Vict. ; Brewster
Where a demand w.
■(I part paid: -Held,
ofor the residue with
f, Anyer, E. T. 3 Vict
\WeTG a rule direc
rty in a cause, a den
Jomey. Kimball v.
pp. C— Macau lay.
I Before attachincr an o
I Will. IV. c. 1, s 55, I
I order to pay must I.
klc. /;» re McLachla
I To enforce payment r
"pen the petition of tl
nse depending, the pi
'id order of V. C. Jam
na and attachment, tJi
8 fit law. McOillv.
I An attachment to coi
] be granted merely f<
'i of the contempt, i
nb. 210.— Spragge.
I The court will not hold
■ contempt for not obeyii
•t-payment of the costs
■pt. PheriU V. Pherili
•Taylor, Secretary.
I. When Granted.
1. For Non-payment of Co»U.
(a) Qenerally,
Where the judgment of a Court of L
had been removed into this court by cert..
and set aside upon the application of the del
ant, without any interference on the part of i
plaintiff, the court refused to grant an atti,
ment against him for non-payment of coit]
removing the proceedings. Cramer \r. U
Tay. 36.
On affidavit of a rule for payment of o
served and demanded, a rule absolute k\
attachment was granted. Roioscllv.Haitt
Dra. 90.
An order of nisi prius must be ma(leanili|
court before attaching. Plumb v. Milkii
S. 484.
Where a judge's order for non-payment ol«
has been made a rule of court, adcmanilf
be made after it has become a rnle of c
Culver V. McDonell, T. T. 7 WiU, IV.
Where the demand has been m&de i
irawer of attorney, it need not be ihein t
2. For Contempt of /
li party becoming banl
*bemB arrested for contei
ier of this court. Brei
1 attachment for not
I not be cranted again
*e unless he is acting co
(of the Niagara Distri
Ml order to commit to '
[naing to be examined i
P, 18 to be looked upon
mpt, not as a commi
Wfl V. Dickson. 19 Q
I moving to commit fo
fenng possession of mc
"• 32 of 1853. it must
Mion was demanded.
'• Chamb. la-Esten.
^ order was made forth
™. by the father to t
,ation to commit the fat
mm this order, it ai
fee from home the chi
fa from his house, and (
PMhesonsaj^ngtha
P« her's knowledge or
J fcok no steps to brine
■^Jnotofrertodosof
m
ATTACHMENT OP THE PERSON.
282
, time of the ilemand a copy of tho atJiilavit of
i,l pxccution of tlie power wa» served Sanders
Ti.,t it was held otherwise iii eurli( r uanoa.
f^^i,, I Butler, E. T. '2 Vict. ; Morrison v.
■ihn T. T. '2 & 3. Vict. ; Qim v. J/olme:<, h.
^3 Viit. ; Bmcoter v. McEwen, K. 'I'. 3 Viot.
Where a ilemaiul was made on the allocatur,
doart paid : -Held, that no attachment could
"Ifor the residue witli< mt a new demand. Ili/utt.
^4»!/«»•, K. T. 3 Vict.
Where a rule directs costs to be paid to a
V in a cause, a dem»nd may bo made by his
-P. C— Macaulay.
i Before attaching an over-holding tenant, under
iwill IV c 1, 8. 55, for non-payment of costs,
. order to pay must be served and a demand
In re McLachlaii, 3 Q. B. 331.
[to enforce payment of solicitor's costs, taxed
m the petition of the client, entitled in a
■>e depending, the proper course, under the
M order of V. C. Jameson s orders, is by sut)-
, and attachment, though such costs include
iBtlaw. McOillv. Sexton, 1 Chy. 311.
I An attachment to commit for contempt will
t be granted merely for non-payment of the
Its of the contempt. Dkkmn v. Cook, 1 Chy.
nb. 210.— Spragge.
I The court will not hold a party, who has been
\ contempt for not obeying an order, in gaol for
B-rnvment of the costs occasioned by his con-
Lt PheriU v. PheriU, 2 Chy. Chamb. 444.
mylor, Secretary.
2. For Contempt of Procesn or Orderx.
\k i)arty becoming bankrupt will not prevent
•being arrested for contempt in not obeying an
ler of this court. Brewer v. Rone, 2 U. S. 6.
J attachment for not obeyintj a certiorari,
I not be granted against a district county
oe unless he is acting contumaciously. In re.
Xtojth. Niagara District Court, 3 C). S. 437.
_ Older to commit to close custody for not
nding to be examined pursuant to a judge's
ff, is to be looked ujwn as a commitment for
tempt) not as a commitment in execution.
idfTMrt V. Dickion. 19 Q. B. 592.
moving to commit for a contempt in not
jering possession of mortgage premises, in
lience to an order made in pursuance of
32 of 1853, it must be shewn that the
ision was demanded. Neviexx v. Labadie,
y. Chamb. 13.— Esten.
I order was made for the delivery of infant
ren by the father to the mother. On an
»tion to commit the father for ccmtempt in
JBbeying this order, it appeared that in his
» from home the children had been re-
1 from his house, and taken to the United
I by his son, aced fifteen. They denied
bion, the son st^ng that he acted without
(father's knowledge or consent ; but the
rtook no steps to bring the children hack,
Idid not offer to do ao, if timo were given
him. To the demand made for the children,
the fatiior replied that they were not in his
custody : -Held, tlint he was not excused from
oi>eying the order, and was in cimtempt. Neijina
V. Alkn, 5 r. 11. 453.— Chamb.- -Morrison.
3. For non-piiiiment of Monrij.
A defeiulant in attachment for contempt for
not l)ayini' over inoucv pursuant to a nilc of court,
may be admitted to the limits, after beinjj order-
ed to be committed upon his answers to interro-
gatyries. Hex v. A'i(/(/, 4 O. 8. 415.
The court will not detain a person in gaol
merely for the non-payment of money ; but in
order to punish any one guilty of a contempt of
court, it may imprison him for a stated period,
allowing liiiu to be discharged if ho pay the costs
of his contempt before the expiration of such
period. Ifitrrin v. Myeri>, 1 Chy. Chamb. 229.
— VaiiKoughnct.
The court will not commit for disolieying a
decree, where the disobedience is in effect the
non-payment of money, .\fali'
Chy. Chamb. 359 ; .V. ('. 2 Chy,
Spragge.
V. Bouchier, 1
Chamb. 254.—
4. For non-producli(^H of Documents or Accounts.
Where a party neglects to comply with the
terms of an order for the production of books
and papers, the proper mode of proceeding is to
serve personally a notice of motion to commit.
Paterson v. Bowes, 4 Chy. 44.
A party in contempt to an attachment for not
bringing accounts into the master's office on a
reference, afterwards filed the same, but neglected
to pay the costs of his contempt, and an ex parte
order to remove the accounts so brought in from
the files, in order to proceed against him for the
contempt, was granted. Corbetf, v. Meyers, 1
Chy. Chamb. 26. — Spragge.
A married woman, defendant, living with her
husbtvnd, was ordered to bring certain accounts,
as administratrix, into the master's office, and
having disobeyed the order an application to
commit her for contempt was refused, the general
rule being that the husband must answer for the
wife's default, unless he shews some ground of
exemption. Mauqhany. Wilkes, 1 Chy. Chamb.
91.— Spragge.
A married woman, a defendant, living with
her husband, was ordered, as administratrix of
a former husband, to bring certain accounts into
the Master's office, in a suit in which her hus-
band was joined as a co-defendant. On an ap-
plication to commit her for disobedience of tne
order, it was contended that the rule laid down
in Maughan v. W^ilkes, 1 Chy. Chamb. 91, that
the husDand must answer for his wife's defanlt
unless he shewed some ground of exemption, was
in efifect abrogated by 35 Vict. c. 16, O., which
renders married women liable for their separate
engagements in certain oases : — Held, that sec.
8 of that act was not applicable in the present
case, where the marriage took place before the
passing of the act, and that the other sections
did not affect the rule. It was also contended
that the reason for the rule in this instance was
wanting, as it was shown that the married wo-
man was a woman of great force of character,
M
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283
ATTACHMENT OF THE F^KUSON.
•M
and not in fact unilur thHuuiitntlol' her liiMliiU'il:
Hold, that tliu himliaud niiiHt MatiHly thu i;i>ii<-t
thiit hu haa UHud h'm liont undtiavmirH to uct hi.i
wife to (dxiy the nrdor licfnri! Ij^^ will \>v. din
II
I OK. Chy. Clmn
char({od from Iuh liability touttacliiui'iit. Minrln
mm V. DoiiohiM', 10 I,. .I.N. S.
— iloIniuHtud, Jdj'rni:
A i)arty neKlfctin^ toju'odiK't; uorouuts l)ffoii'
the niaHtur wliuii ho rui(uii'cd, w ill ho oi'iIi'I'imI to
pay tlic ccmtH occaHioiiuil l>y his contt'iiint,
although no <;oniinitnicnt hax takon |ihu'i'. '1 hu
notice ru(juirud l»y Hection (i of gt'nonil onlor
40, is not ncL'osaary in oaHusof orders nixi fornon-
uroduution. lii-rrif v. Afuun, I (.'hy. Chiinih.
107. -Hpraggo.
Where an order nisi haw hucn ilidy mitvoiI to
enforce the tiling of acuountrt in the master's
otfiue, and accounts art! tiled, l)ut tla^ ncistcr
certities that they are inMutheient, it is the
practice to grant an order absolute ex pute;
imt if aHkeil, an o])portunity will be giviii to
shew the sulHcieney of the accounts. S^nncrr
V. Li'i'iiuiiij, I Chy. I'handi. 1H(I. N'anKough-
net.
Where, on an applic.ition for not brim^iu/.,' in
accounts in a Master's otiiuo, for an order nisi,
on the ground that the accounts l)rou^ht in were
insutticient, it appeared that the insuUiciency
consisted in the items being undated, the order
nisi was refused. In such ease, before applying '
a warrant shuuhl be obtained from tlie master,
calling upon the parties to bring in better ac-
counts. Merkley v. Cutni-liuaii, I Chy. Chamb.
292.— Spragge.
A notice of motion for an order abstdute foi'
non-production in the registrar's otKee, under
order 31 of the (!th of February, ISli."), retpiires
personal service, by analogy to the foi-uier prac-
tice by order nisi. Dlfkium v. Dickdoii, 1 Chy.
Chamb. 366. - VanKoughnet.
A party parting with papers after service on
him of an order to produce was ordered to pro-
duce them, to Hie a better attidavit, and pay
costs. liosii V. Robertson, '2 Chy. Chamb. GO. —
Taylor, Secrefari/.
Where a party is in contempt for not bringing
in accounts, it is a sufficient clearing of his con-
tempt to bring in such accounts, and the sufll-
oiency of them will not be looked into. (.'Lwci/
V. Patterxon, 2 Chy. Chamb. 217. Spragge.
On a motion to commit for non-production of
certain documents after an insutHcient attidavit
on production has been tiled, it is not absolutely
necessary that the notice of motion shoidd
^ spacify what is demanded in addition to what
has been produced, though tlie court considered
such the better course. On such a notice the
court will grant the more limited relief, and
order further production, but without er)8ts.
FUken v. Smith, 2 Chy. Chamb. 491.— Mowat.
When a p»Hy has Ixjen connnitted for not
bringing in accou at i, and it is shewn by certifi-
cate that the accounts have since been brought
in, it caimot be urged on a motion for his dis-
uharge that the accounts are insutiicient. Nor
will the payment of costs l)e made a condition
precedent to his discharge. Clark v. Clark, 3
Chy. Chamb. 67.— Taylor, Secretary.
See II. p. 284.
r>. t)f/i,r CiiiiM.
An attachment for refusing to NWour in ti.i
execution of a cognovit will not be graiitcd nn.jL
a ride has lieeii served on the witiie.ss uriliniul
liiin to do so, and lias btieii disobeyed. //«„.,'
l/. S. 17(i.
The Judge at nisi prins doulined to tdniiu,!,,
witness for not answering i|ueMtions, Mliciiitll
MoiiLflit to elieit the admission of facts iiiiii,,rt|,
a si-andal upon himself. Hesidt^s, tlic i|,i![
thought the witness intoxicated, ainl ln ^ i
means able to give evidence at all. /),„ |/
v. M>irr, 3 (;. I'. :i(J.
No attacliineiit will liu for not ncikin^^.trctsi,!
to a peremptory mandamus. It slmiiM lull
not obeying the writ. Hii/mih v. Tin TrMA
iif SrtiiKil Sic/loit 27, ill t/ir 'J'oii'iixliijtiif J'litdt
iKii/ii, 3 I'. H. 43. ('. li. Chamb.- -Burns. ' |
The allidavits statnl that M., whoel.iiinoii.j,!
ollice ol ri^gistrar, n) tained a iiiaiicl.iinin |,!,l
directed to II., to deli er up to iiiiii the i.iil
and papers ; that he wi'iit to the ollicn witlitiJ
const!ibles in If.'s abse lee, and (leiuiiiiili;iltli«|
of his wife, reading whit ^lurported to lieapsf
ennitory in mdanms as his authoiiry (itl»
only a mandamus nisi), but refusing toalLwin
or her solicitor to exam'ne it; and tluv tid
took away the books, &c. Upon these .itfidjpi
the court granted a rule i.isi for an atfculii
against M., but refused it against tlK'ciiiistakL
tlicre being nothing to shew that tliev iJ
aware of the fraud. /n re .VcAd//
"'■"'I "II tJio
L :> ""• 7.")tli (old)
^■■'.•'tteru-ar,i.s,,r„cee,
F an aiLsiver. .]/,,„,
ATTAOIIMKNT OF THK I'KUSON.
280
2, Ollnr ('.
iUid III' I'Xiiiuiiiod a* to dclitH, I'lmnot
UUiMlin viKMtioii. '-' "'■ V. \y«"f toHtcMl ill tcrni, oti tho m
an tiif niio i>ii wliioii it isHiu's. Hii/hni v.
Trii'ilii't iif Sriidiil Sniiiiii Xi). .'!, In. Iliv \
■trniMl' '•/ Tn'ii'l-'Kill", !« I'. If- ^'^' <"liainl..
.IViriin.
The mil' nixi oiillcd tiiion the trustcosot Hchool
..tioii iiuinl)or 1'7 ill tlio townHJiip of Tyfiidi-
jKi in tlu! county of HftHtiiigH, to mIiow oauHu
Ikv'iim iittachiiu'iit Hliould not iHHUo ngiiiiiHt
On an atlidiivit of Hurvii.'i- of this riih' on
H luiil ('•. Hinting tlifin to lio truHtcusof s lid
ntion, 11 nile iil)H(mito was gnmtiMl following
to form, nnil tlioreupon nii att.'icliinent issiiod
dnst A., U. M\i\ ('. : Hold, l>ft'f Ik'Uovillc," and an attaidinicnt
" 111 moved foraftur ho liad foriwcd to \>u trca-
ir for not making a return to tiic »anio : —
il that the proper diroetion would have been
lo'tho treasurer," &c. generally, though the
' mill direction was not ahsolutely wrong, l)ut
M S. had ce.iHed to hold the ollice, the at-
unentmust lie refused. liiinlcll v. Smci/rr,
\\l 398.-1'. ('. - Hums.
nceessary to Mliew that it liaM not )>eon dolivurud
to either party named in the order. />/>/• v.
MvXi'l., I Chy. Chanil). .-n.-Hlake.
Where an onler to coinniit iM fioiight for thii
noii-exeeution of a conveyance directed to lio
ke|it at a solicitor's ollico for execution, it niuiit
lie shewn that it was acci'ssihle for execution in
such (.tlice. H'/l V. .»/i7/. c, I Chy. Chamli. 370.
I Spragge.
{ It is not nueostiary to Htate in a notice of
motion that a certificate of an otticor of the
court will )h! rcail in support of tho aTiplieatioii.
■■ Such certificate can be n^ad though no uuoli
notice ho given. AtnHnrh v. I'hnikelt, \ Clhy.
Chamb. 381.- -Sjiraggo.
Whore an order is complied with after aervice
of notice of motion to commit for tlisobediuncu
of it, and before the motion conieH on, an ordur
to commit will not bo granted, but the party will
be reipiired to pay to the applicant the costs (if
the motion within twonty-finir hours after the
amount has )u'cn settled. /'*.
Fmir day's notii- ..iiist be given of a motion
to commit, (Irny v. Hatch, 2 Chy. Ohanib. 112.
- Mowat. lirouijhtiU v. Ilrrlnr, '1 V\iy. ChamV).
4H4. -Taylor, Svcretary, '
for attachment must be on notice.
Fiihan, "2 Chy. Chamb. ,53. -Taylor,
i writ of attachment for contempt in notob^y-
itlw original order to deliver nji tho custo
ody
fehililri'ii, uii(kr ('. S. U. C. o. 74, was movetl
linst for irrcj^ularity :— Held, that it was nn-
issarv to niake the order for tlelivcry of the
drena rule of court before bringing the father
I contcmiit, Imt that the proceedings alumld
liecu moved into and adojited by Mm court
m an attachnicnt cimld ivsuo from it ; and
Hliisattn''limeiit tlioveforc w.is irregular. In \
i\l,n,-M <>». M. 4"i9.
trWilsdii. . I. 'I'lic judge could by his own
br liavi; iittached the party. //'.
ilil, also, that such attachment was properly
til and sealed by the clerk of the jirocess,
lissHcd hy the clerk of the crown. Ih. See,
\'nkti\i'ld\. liniri,') ]'. I!. 77. - Chaiub.
niic.
I warrant to the shcritV to commit a person
rjjulai though no return day is men-
it. I'nntinx V. lirinnmi, I Chy.
idaiutirt' endorses on the copy of the
-ved on the defendant the notice
■V the "A\\ (old) order of this court,
Dii'ii afterwards proceed by .attachment to
an .answer. Mi-i/ir\ v. /{nlxrlsun, I
155.
lapplicatioii to eoininit a witness for refus-
1 sign deiwsitioiis m by him, will not be
I ex parte. Blubi \. Tcrri/lH'rri/, 1 Chy.
lb. 255.— Spragge.
I moving to niaive an or-ier nisi for not
ng an abstract of title al)solute, it is
Motion
Morjihtj \.
Si'cri/'cri'tori/,
A motion for production, with the alternative
that tho party be committed in default, being
substantially a motion to commit, requires four
clear da."'<' notice. Ahd v. fliltx, !) L. .1. N. S.
3()3. — 1 lidmested, /'(/< rci:
A party is not in contempt for non-compliance
with an order of court until the opposite party by
some step brings him into contempt ; if such
party omits this, he cannot urge the contempt
in b.ir to a ^iroceeding by the party so in default,
or urge it in extenuation of his own laches.
(,';ile.yiir v. aillr-tpi,; 2 Chy. Chamb. 2fi7.— Van-
Koughnet.
A party moving to commit for disoliedience of
any order or O. S. r»37.
An attachment for non-payment of costs pur-
suant to the consent rule in ejectment is not a
writ of execution, and a party taken under it is
not entitled to V)e discharged from custody as
having been illegally arrested under ."5 Will. IV.
c. 3, 8. 2, which abolishes writs of execution
issued on a judgment entered for costs only.
Hegina v. Kelly, GO. 8. 1.5l».
Where expenses have been vexatiously incur-
red in a suit by the attorneys on Iwth sides, the
court to protect the client will order .
fact in his affidavit which might have affccJI
their granting the attachment, and although oikI
of tlie affidavits upo i which the attachment nj,!
moved for was not tiled early enough for thegl
to answer by a counter affidavit. Hej- \
Kenzieetal.,'ra.y.70.
An affidavit to set aside an attachment quiI
be intituled on the crown side, and not in t||,|
names of the parties to the suit. ^falLfhrI
J/orcw, T. T. 1 & 2 Vict. '
Even although the attachment ordered has ml
issued, (fnrland v. liinroHvs, T. T. 3 & 4 Vkf
—P. ('. — Macaulay.
A party moving under 7 Vict. c. 3, s. 8, for J
discharge from custody, must shew thatheiij
contempt for nnn-payment of money ; and ijt
notice of intention to move must be served J
the opposite party, not on his attorney, (jmi
son v. Balkwell, 1 Q. B. 2.
Where a verdict was taken at nisi priusn
ject to a reference, and the reference wa« afe
wards made a rule of court, and contained li
usual clause against tiling any bill in equity 1
defendant, against whom the award was,,
not move in the court in the proper time, but fi
his bill in equity, for which the court m
attacliments against him and his solititor, tn
which attaclmients writs of habeas corpus iJ
subsequently issued : the court refused to 1
aside those writs, or suspend proceedings 1
them. Perjina v. Maddock etal. 1 Q. B. 32il
Qutere as to the right of a defendant urn
tempt for non-appearance to a subpitna L
on an information of intrusion, but n(jt aotL
arrested, to move quia timet to set aside ttt*
cess issued against him. Attornei/ (in.ril
Afr Lac/din, 5 P. R. 63.— P. C— AWilsoa
A writ of attachment for contempt ii «
obeying the original order of a judge to ddi
up the custody of children, under C. S. U.Cl
74, was by order of a judge issued from the f J
of Queen's Bench ; and tlie husband m
against it for irregularity. It was objected^
while in contempt by not having surra
himself under it, he could not be heard ;
Held, that he might nevertheless defend
by objections to the process if irregular,
Allen, 31 Q. B. 458.
An amendment of a bill by adding j,
recjuiring no answer from defendant, isai.
of process of contempt for want of answer;!.
on an ex parte motion the defendant mil
discharged. Thrasher v. Cunnolli/, 1 Qy.r
A defendant in equity appealed from am
directing his committal for a breach of 1
junction, and moved the court to stay pM,
ings under the order pending the appeal ■
was refused. Ganihk \. /fowl(mil,3Ci:j.\
The court will entertain ap^ilications )
the liberty of the subject during long n
tfurris V. Myers, 1 Chy. Ciiauib. iSSl-
Koughnet.
It is improper to have recourse to an*
uient when the object can Ije obtained 1
it. Wliere, therefore, a party who viui
to execute a conveyance had come intoli
execute it, aiChough after the proper i
the plaintiff's solicitor knowing these iKtil
)iit affidavit on
ATTAINDER.
290
attachment, it was set afi^l;* with .Mjsts.
Tlic fact fiiat a defeiulant had put in an insuili-
„,t atfiilavit on i.nKluction is no bar to his
m-iiii! t(i iliamiss the bill. <,iH<:y>ir v. <.,ll,s,„<;
iChy. Chamb. 2G7. VanKougluiet.
I A .lirpction to do an act " f.>rthwitli" is a siiHi-
' ntcompliance with onlers -JSS an.l 203. Whuro
der an order so endorsed a party wa.s attached
"(iiaobcdienec, the attachment was holil to be
nlar Where the attorney of the iiarties
cted to confess judgment at law, had been
jsted for disobedience as well ius the parties ;
^'was discharged. W'nlluc' y. Anr, Lh-imMon
I Acre 2Chy. Chamb. :W.'. - Sprafige.
IV. MlS('F.I.I.ANI',()l-S ("asks.
Attachment lies against c v. K'uli/, U. T. '
m. IV.
.ving to a mistake in the crown ollicc a rule
lieturn the writ of certiorari to remove a con-
ton, and afterwards a rule for an attachment
led.'although a return had in fact been filed,
je than six months having thus expired since
I cunwtion, the court were .oskcil to allow
esB to issue against tiie justice for the illegal
rictionasof a previous term, but the applica-
iwas refused. Quiorc, whether tin- six months
be held to run only from the time of
Ihing the conviction. Jii re .In'n'c, \\)i). I (. 1 !t7.
Semblo, tluit the omission by the plaintifl' to
aver that the sherill" had not thv i»arty before
the court at tlie return of tho writ of attach-
incnt, tliough not l)ad on general would be Imd
on special demurrer. Hi.
Scinble, that before the return of a writ of
'■ attachment for contempt the sherill' cannot pro-
I perly take bail for the appearance of a party,
j without theorderof a judge; but after tiie return,
if the party Ik; upon attachment merely to com-
pel tlie payment of money, the shcritl' ivs of
' course may take l)ail to tlie limits. I.'iiic v.
, Kiiiijsiiii/I, ■() (i. li. 57!t.
iSemblc, that if an attachment for contempt in
j not paying moneys is to be regarded as mesne
] process, it should be avericd in a dticlaration for
! an escape that the sherill' had not the party in
court to answer the exigency of the writ ; and
I if the attachment is to be regarded as an execu-
j tioii, Semble, it then reiinires something in the
nature of a judgment to su])port it. /h.
The merely averring tiiat the plaintiff sued
I out an attachment for contempt, without stating
' what tiie contempt consisted in, or by what
i authority it had been detemiine'l the party was
] guilty of contempt, is iiisutlicieni ; a good legal
. foundation for the attachment must be shewn on
the recoril. ///.
Whciv upon apjdication tocuminit adefendant
to gaol umler the '2'2 Vict. c. !)(i, s. I.S, the judge
ordered a ca. sa. to issue instead, as allowed by
that section, and the tlefendant thereupon gave
bail to the limits : Ifcid, that lie could not
again be eoniinitteil to close custody under the
first alternative of the .same ^'lause.
/}<„r,s, -2 I'. H. 348. I', r. Bnrns.
ATT.MNDKlt.
/'i
The property of a iicraon attainteil tor high
trciwon, is not forfeited until the attainder is
complete, (^luerc, as to the effect of a dctVmlant
becoming attainted Ijctwecii tlie sci/nre and sale
iparty arrested uiMin an attachment issued ; "f bis goods under a fi. fa. l'Jvr, 1 t by. dii4. ^1^^, ^.^.^,^^^^ ^^.i,;^.], the crown had foreborne to
Iboiul to the limits may be taken on an at-
neut for luiii-payment of money, and may
MJKned. Montijumcri/ v. Ilmchml, 10. T. '2
Bre, is an attachment of privilege at the
bf an attorney within the !)th clause of 2
rlV, c. 1. And (iniere, would this dcuibt,
lie want of an atrVlavit l)eiiig annexed to n
ble (iroccss, prevent the defendant, a coii-
, from having the lienefit of the 21 .lac. f,
eiioiiit of venue, linuni v. Slim, Ttil. 15. 141.
lierilf is liable to an action for the escape
Iparty attached for contempt of court in
a.s8ert. J)i>i' d. (iille.'!i- v. Il'/'.c.v«, 5 Q. H. 132.
'i"he estate of a traitor concerned in the reliel-
liou of 1837, anil who accepted tho benefit of the
provincial statute 1 Vict. c. 10, is at once by
such acceiitance as much vestetl in the crown,
under the operation of 33 Hen. \'1II. c. 20, s. 2,
without oftice found, as afterwards. //>.
Though by 33 Hen. Vlll. c. 20, the crown, in
C!we of attainder for liijjh treason, wouhl be
deemed in actual posse.ssKm without any inqui-
sition of ortiee, yet such lands would (>iily vest
in the coiiiinissioners under '>0 (ieo. I II. e. 12, as
should be found by imiuisition to be vested in
irfomiing an award, and it is not necessary \ the crown, and therefore no more laml couhl
Icr to this action that the party should l)e ! ]K>ssibly pass by a deed from the commissioners
'it up on the return of the writ of attach- 1 than the inquisition had found tho traitor seized
•nd formally committed by tf e court, i of. And he'd, that tho inquisition could not
'(ijwSmilh, 4 Q. B. 181, ' supiKirt the c( in v<>vanco which the commissionen)
19
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lilt
I ' -'A
i i
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291
ATTORNEY AND SOLICITOR.
!!!ll
i 'i
m
mode ; for it referred to nothing which could
Hupply proof of iiluntity, an